Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.629 OF 2023
Amol S/o. Punaji Mane
Age : 55, Occ. Nil
R/o. House No.290, New Khadaki, Sy, no.8, Yashwant Nagar, Yerwada
Pune … Appellant
(Copy to be served on G.P. of
High Court) … Respondent
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Mr. Vikas Shivarkar for the Appellant.
Ms. Supriya Kak, A.P.P. for the Respondent-State.
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JUDGMENT
1) The Appellant has challenged the Judgment and Order dated 27th April 2023, passed by the learned Additional Sessions Judge, Pune in Sessions Case No.255 of 2010. Vide the impugned Judgment and Order, RvC 1/34 the Appellant was convicted for commission of offence punishable under Section 302 of the Indian Penal Code (in short “I.P.C.”). He was sentenced to suffer life imprisonment and to pay a fine of Rs.3,000/-, and in default to suffer further rigorous imprisonment for six months. He was acquitted from the charges of commission of offence punishable under Section 324 of the I.P.C. The Appellant was arrested on 11th November 2009 and he was granted bail pending trial on 9th December
2010. He was given set-off under Section 428 of the Code of the Criminal Procedure. After his conviction, again he was taken in custody.
2) Heard Mr. Vikas Shivarkar, learned Counsel for the Appellant and Ms. Supriya Kak, learned A.P.P. for the Respondent-State.
3) The Prosecution’s case in brief is as follows:- The deceased in this case, Manoj Jadhav and P.W. 2 Ganesh Mane were working with the Appellant, who was in the business of land transactions. The deceased Manoj Jadhav and Ganesh Mane suspected that the Appellant was indulging in illegal activities in these transactions and, therefore, they left his job. The Appellant was not happy with the RvC 2/34 situation. He threatened to kill both of them. On 8th November 2009, in the evening, the Appellant went to Diamond Chowk, at Yerwada, Pune. He was carrying a baseball bat with him. He started assaulting P.W.[2] Ganesh Mane. Manoj Jadhav came there subsequently and tried to help Ganesh Mane. It is the case of the Prosecution that there was a scuffle. The Appellant took out a Rambo Knife, which he had hidden near his waist and gave a blow on the back of Manoj Jadhav, causing grievous injury. Manoj’s relatives took him to a hospital, but he succumbed to his injuries. The F.I.R. was lodged and the investigation commenced. The Appellant was admitted in a hospital. He was arrested after his discharge on 11th November 2009. The blood stained clothes of the Appellant, the deceased and the witness, were seized. The knife was recovered at the instance of the Appellant from a showcase in his house. Different panchnamas were conducted. The articles were sent for chemical analysis. On the conclusion of the investigation, the chargesheet was filed and case was committed to the Court of Session.
4) During the trial, the Prosecution examined 16 witnesses, including the injured witness Ganesh Mane, other eye witnesses, the medical officer, panchas and the Investigating Officer. RvC 3/34
5) The defence of the Appellant was that Ganesh Mane had come to his office in the afternoon and had taken certain amount forcibly. The Appellant went to ask for returning that amount, but Ganesh Mane and his friends, including the deceased Manoj Jadhav assaulted him. According to him, he did not know how Manoj suffered injuries. He himself had suffered many injuries. He then went to the Police Station. Police did not take cognizance of his complaint. He was admitted to the hospital for three days. After his discharge, he was arrested.
6) The learned Judge considered the evidence on record. The Appellant also examined three defence witnesses, including himself, his friend and one Police Officer.
7) The learned Judge believed the evidence of the eye witnesses and the recovery of the weapon at the instance of the Appellant. The Chemical Analysis report showed presence of blood on the weapon as well as on the clothes of the Appellant, however, the blood group was inconclusive. The learned Judge also relied on evidence of panchas, though most of them were relatives of the deceased. The learned Judge RvC 4/34 convicted and sentenced the Appellant as mentioned earlier.
8) P.W.[1] Satish Sopan Mane was the first informant and an eye witness to the incident. The F.I.R. was lodged vide C.R. No.585 of 2009, at Yerwada Police Station, Pune on 8th November 2009 at about
10.10 p.m. P.W.[1] has proved the F.I.R. and it is brought on record at Exhibit 62 before the Trial Court. P.W. 1 deposed that the deceased Manoj Jadhav was his relative and neighbour. P.W.[1] knew the Appellant. He also resided in the same locality. He was also a distant relative of P.W.1. P.W. 1 deposed that the Appellant was in the business of land transactions. The deceased Manoj Jadhav and P.W.[2] Ganesh Mane were working with the Appellant. According to P.W.1, Manoj realized that the Appellant’s transactions were fraudulent, and, therefore he left his job. Manoj went to Khopoli and started residing with his aunt. He started working as an Electrician. After Diwali Festival in the year 2009, Manoj Jadhav came back to reside at Yerwada, Pune. On 8th November 2009 at about 06.30 p.m., P.W.[2] Ganesh Mane received a phone call from the Appellant. The Appellant threatened him that if he did not work with the Appellant, he would kill both Manoj and Ganesh. Ganesh was P.W.1’s cousin. He informed to P.W.[1] about the threats. P.W.[1] advised RvC 5/34 him to ignore the threats. On the same day at about 7.30 p.m., the Appellant came from Dnyandeep Chowk wielding a baseball bat in his hand. At that time P.W.1, P.W.[3] Ganesh Bhandare and Mayuresh More were standing at Diamond Chowk. The Appellant started beating Ganesh Mane with a baseball bat. At that time, Manoj Jadhav came from the floor mill side. He caught the Appellant from the backside. Ganesh Mane gave kick blows to the Appellant. Manoj and the Appellant, both fell on a scooter. After that the Appellant took out a knife from his waist and gave a blow on the back of Manoj, who was seriously injured. P.W. 1 and others took Manoj to Shah Hospital and then to Sassoon Hospital, but Manoj was declared dead. P.W.1, then lodged the F.I.R., which is produced on record at Exhibit 62. He identified his own clothes which were earlier seized and then produced before the Court. He also identified the knife produced in the Court. In the cross examination, he deposed that Manoj Jadhav was his cousin. They were residing in a slum area at Yerwada, Pune. He had no documentary proof to show that Manoj Jadhav was earlier working with the Appellant. About four to five months prior to the incident, Manoj Jadhav had stopped working with P.W.1. When the incident of scuffle was taking place, he did not make any attempt to stop the scuffle. He RvC 6/34 deposed in the cross examination that after Manoj and the Appellant fell on a scooter, the Appellant gave three blows of knife on Manoj Jadhav. The blows were on the back. The three blows were given on the right side, left side and the middle. After Manoj and the Appellant fell on a scooter, P.W.[1] saw that the Appellant took out a knife. P.W. 3 Ganesh Bhandare had borrowed P.W.1’s shoes and he had come to return those shoes to P.W.1. The incident took place at about 07.30 p.m. He emphasized that Manoj had suffered three injuries because of knife blows. He further deposed that after some time, the Appellant’s father came there and took him away from the spot. The F.I.R. produced on record at Exhibit 62, substantially, corroborates his version.
9) P.W.[2] Ganesh Mane was an injured eye witness. He is an important witness. He deposed that he was residing at Yashwant Nagar, Diamond Chowk, Yerwada, Pune. He knew the deceased Manoj, as Manoj was his cousin. Before the incident, P.W.[2] and Manoj were working with the Appellant. He was in the business of land transactions. Manoj was working as an office boy and P.W.[2] used to help the customers in filling up the applications. Some people had made complaints about some transactions, because of which the Appellant and P.W.[2] were arrested. RvC 7/34 After that P.W.[2] had left his service and joined a newspaper agency. He was collecting advertisements for that newspaper. After P.W.2, even Manoj Jadhav had left the Appellant’s job. Manoj first went to Khopoli and started to work as electrician. Then he came back on 5th 2009 to Pune and started residing with his aunt Mukta Mane. One Salim Shaikh had lent Rs.30,000/- to the Appellant. Salim requested P.W. 2 to tell the Appellant to return his money. P.W.[2] conveyed that message to the Appellant, who got angry and abused P.W.2. On 8th 2009 at about 06.30 p.m., the Appellant called him telephonically and asked about his location. At that time, P.W. 2 was at Diamond Chowk. The Appellant asked him to wait there. He threatened P.W.2, that he would finish him. At that time, P.W.[3] Ganesh Bhandare, P.W.[1] Satish Mane and Mayuresh More were present with P.W.2. At about 07:30 p.m., the Appellant came there with a baseball bat. At the same time, Manoj Jadhav was coming to Diamond Chowk, from Nigade Floor Mill. The Appellant started beating P.W.[2] with the baseball bat. He gave blows on the upper portion of right cheek. There was a scuffle between P.W.[2] and the Appellant. Manoj came there, held the baseball bat of the Appellant and started pulling him. The Appellant fell on a scooter. The Appellant took out a Rambo Knife from his waist and gave blow on RvC 8/34 Manoj’s back, causing grievous injuries. The Appellant then left the place. P.W.[2] with the help of P.W.[1] and others took Manoj to Shah Hospital and then to Sassoon Hospital, but he was declared dead. Police recorded the statement of P.W.[2] on the same day. He identified the knife produced in the Court. In the cross examination, he stated that he was working with the Appellant in year 2008. He and Manoj Jadhav left the Appellant’s job in the year 2009. On the date of incident about 06.30 p.m., he had received a phone call from the Appellant. At that time, he had told the Appellant to return Salim Shaikh’s money. He further deposed that, as soon as the Appellant came there, he started beating P.W.[2] without any instigation. He gave blows on his face. The Appellant became aggressive and stabbed Manoj in the back. According to P.W.2, since the Appellant owed money to many people; to save himself, he had stabbed Manoj Jadhav. He further added that the quarrel of the Appellant was with P.W.[2] himself and he had no proof to show that there was earlier any dispute between the Appellant and the deceased Manoj Jadhav. When Manoj came to save P. W.2, the Appellant gave knife blow to Manoj on the back. He stated that there was dispute between him and the Appellant on the ground of non-refund of money of Salim Shaikh and RvC 9/34 prior to that, there was no dispute with the Appellant. The Appellant beat him with kicks and fist blows, and, therefore, P.W. 2 also beat him with kick and fist blows. The Appellant fell on a scooter. Because of that, he sustained head injury. He admitted that the Appellant had threatened him on the day of incident itself. Prior to that, he had not given any threat. He admitted that there was no rivalry between Manoj and the Appellant. Manoj had left his job with the Appellant and therefore, the Appellant had told him that he would beat him. He admitted that Manoj was separating the quarrel, because of which the Appellant beat him.
10) P.W. 3 Ganesh Bhandare is another eye witness. He deposed that he knew P.W 1, P.W. 2 as well as the Appellant. The incident took place on 8th November 2009 at about 07.30 p.m. He had gone to meet P.W.[1] Satish Mane for returning his shoes. After that, he, P.W.[1] Satish Mane and Mayur More were standing near Diamond Chowk. The Appellant came with a baseball stick in his hand. He went towards to Ganesh Mane P.W.2, who was standing there. It was about 10 to 20 fts. from where P.W. 3 was standing. Initially, the Appellant had some conversation with P.W. 2 and then the Appellant started beating P.W. 2 RvC 10/34 with the baseball stick. P.W. 1 Satish Mane went to help P.W. 2 Ganesh Mane. Manoj went to stop the quarrel. He started snatching the baseball stick from the Appellant. There was a scuffle between the Appellant and Manoj. P.W. 3 further deposed that the Appellant then took out a knife from his waist and stabbed Manoj’s back causing injury. Manoj fell down and the Appellant ran away from the spot. P.W. 3 as well as P.W. 1 and P.W.[2] took Manoj to Shah Hospital and then to Sassoon Hospital, where he was declared dead. In the cross examination, he stated that he was working with a Company, but he did not have any document at the time of his deposition to show that he was working with that Company. He could not tell whether 8th November 2009 was a Sunday or not. But he added that on some occasions he used to attend the office on Sundays as well. He had gone to meet P.W.[1] on his own. He returned the shoes to P.W. 1 near Diamond Chowk. He was there from 06.30 pm. onwards. The Appellant came there between 07.10 p.m. to 07.30 p.m. He did not see any vehicle used by the accused while reaching there. The Appellant was going towards the chowk by walking. The Appellant exchanged heated words with P.W[2] Ganesh and then started beating Ganesh by a baseball stick. P.W. 2 Ganesh tried to stop him. P.W. 1 tried to intervene. The RvC 11/34 initial scuffle was between P.W.1, P.W.[2] and the Appellant. P.W. 3 himself did not take part in the scuffle. After that Manoj Jadhav joined this scuffle. He came from the side of Satish’s house. Manoj tried to catch the Appellant. He added that initially he had seen only a baseball stick in the hand of the Appellant and perhaps there could be a knife in his waist.
11) P.W. 11 Nanda Jadhav was one more eye witness. She was the cousin of the deceased Manoj Jadhav. She deposed that the deceased Manoj and P.W.[2] were earlier working with the Appellant but they left his job because of some quarrel. Manoj went to Khopoli to reside with his aunt but had returned on 5th November 2009. On 8th 2009, at about 07.30 p.m., she was present in Diamond Chowk. She saw that there was a quarrel between the Appellant and P.W.2. The Appellant was armed with a stick. Manoj came to intervene. When he tried to separate the quarrel, the Appellant took out a knife from his waist and assaulted Manoj Jadhav on his back. P.W.[2] Ganesh and others put Manoj in an auto rickshaw and took him to the hospital, but he died. In the cross examination, she stated that she had forgotten the date of incident. Her deposition was recorded in February 2021. The incident RvC 12/34 is dated 8th November 2009. Her house is at about 20 fts distance from the Diamond Chowk. She came out of the house on hearing the quarrel. She deposed that the quarrel included altercation of words followed by assault by a baseball stick. The Appellant was alone. P.W. 2 Ganesh Mane, the deceased Manoj Jadhav, P.W.[1] Satish Mane and one Ajay Birajdar were trying to stop the quarrel. Mayuresh More was also with them. She admitted that Manoj Jadhav was not present since the beginning. According to her, the quarrel was started by the Appellant. She described the knife used by the Appellant as having length of about 10 to 12 inches. When she was pointedly asked whether the Appellant had used the weapon with left or right hand, she answered that as the Appellant used the weapon, she felt uneasy and went back to her house. She added that she had seen the incident of scuffle, but could not tell as to which hand the Appellant had used. The deceased had sustained injury on the back.
12) P.W.10 Ajay Birajdar was a friend of the accused. He also knew P.W.[2] and the deceased Manoj. He deposed that the Appellant was in the business of the land transactions in the year 2009. Manoj Jadhav and Ganesh Mane were working with him, but there was some dispute. RvC 13/34 November 2009, P.W.10 went to meet the Appellant, who was residing at Chandannagar. On 8th November 2009, P.W. 10 and the Appellant went to Saswad. The Appellant was having a Tata Sierra car. P.W. 10 was driving the car. They stayed at one Dhaba at Saswad. The Appellant had some telephonic conversation. At about 7 to 7.30 p.m. they returned to Chandannagar and then went to Raj Chowk. They parked the car near Dynadeep Chowk. The Appellant went towards Diamond Chowk. P.W. 10 went towards his house. He heard some shouts from Diamond Chowk. He rushed there. When he reached there, he saw that the Appellant and Manoj both were lying there. P.W.1, P.W.[2] and P.W.[3] were all present there. P.W.10 helped others in keeping Manoj in the rickshaw. At the instance of the learned A.P.P, P.W. 10 was declared hostile and the learned A.P.P. was permitted to cross examine him. In the cross examination, his attention was brought to the portion marked ‘A’ from his police statement. He denied having stated before the Police contrary to his deposition. Even in the cross-examination, he answered that at the time of recording of his statement, the Police were beating him. The Police kept him in the lock up for two to three days. He had no idea as to what was written in his police statement. RvC 14/34
13) P.W. 9 Dattatreya Disale, was a pancha for the panchnama under which a car and the baseball bat were recovered on 15th November 2009. The four wheeler i.e. Tata Sierra car was seized from a grave yard in a barren space near Mula Mutha river bed. The Police had led the pancha to that spot. They had opened the door of the car by using a duplicate key and had taken out the baseball stick and had conducted the panchnama.
14) P.W.[4] Anand Jadhav was a pancha in whose presence the weapon i.e. knife was recovered at the instance of the Appellant. He deposed that on 13th November 2009, he was called by the Police at Yerwarda Police Station for panchnama. The Appellant made a disclosure statement in his presence, showing his willingness to produce a Rambo knife. He led the police and the panchas to his house near the Diamond Chowk. The Appellant took out a knife from a showcase cupboard and produced it before the panchas and the police. The memorandum statement and panchnama are produced on record at Exhibits 70 and 70A. He identified the knife produced in the Court. In the cross examination, he admitted that P.W. 1 Satish Mane was his nephew. P.W. 2 Ganesh was also his nephew. He knew the Appellant since before. RvC 15/34
15) P.W.[5] Ashok Mane was a pancha for spot panchnama. The spot of incident is hardly in dispute. The spot panchnama is produced on record at Exhibit 73. The police had recovered blood stained earth from the spot. This witness had also admitted that he was closely related to P.W.1, P.W.[2] and the deceased Manoj.
16) P.W. 7 Kishor Haribhau Dhore was a pancha in whose presence the clothes of the accused were seized. The panchnama is produced on record at Exhibit 78. He deposed that on 9th November 2009, the Police had called him to the police station. Some clothes were kept on a table. The police informed him that those clothes were of the Appellant. They were seized.
17) P.W. 12 Vijay Mane was a pancha, in whose presence the clothes of P.W. 1 were seized. The panchnama is produced at Exhibit 97.
18) P.W. 13 Sham More was a pancha, in whose presence some documents were seized from the office of the Appellant. He had turned RvC 16/34 hostile. Those documents are not of any significance.
19) P.W.14 Uday Jadhav was a pancha, in whose presence the clothes of the deceased were seized. The panchnama is produced on record at
20) P.W. 15 Umesh Pawar was a pancha, in whose presence the Appellant was arrested, but he turned hostile.
21) P.W. 8 Sachin Chavan, was a pancha for the inquest panchnama produced at Exhibit 86.
22) P.W. 6 Dr. Vishal Survase is an important witness. He deposed that he had conducted the postmortem on 9th November 2009. On examination, he noticed following 10 injuries as follows:- 1] Abrasion dersum of left ring finger at proximal interphalangeal joint 0.5x0.[5] cm. 2] Abrasion dersum of left index finger at proximal interphalangeal joint 0.[5] cm in diameter. RvC 17/34 3] Vertical linear abrasion, posterior aspect of left wrist 2.[5] cm long. 4] Three abrasions right knee, each measuring 1.[5] cm in diameter separated by a distance of 2 cm. from each other. 5] Abrasion medial aspect of right foot 10 cm long. 6] Abrasion 2 cm below lateral-malcolus 10 cm in diameter. 7] Abrasion lateral aspect of left buttock 6x[3] cm. 8] Abrasion linear lateral aspect of left mid-thigh 6x[1] cm. 9] Multiple abrasions left knee size vecuying from 0.[2] x 0.[5] cm diameter, distributed in area of 4x[3] cm. in diameter. 10] Horizontal stab wound left side of back at T[7] to T[8] level and 8cm lateral to mid-line 7x[2] cm opening in thoracic cavity margin irregular at places. All the injuries are in reddish colour and antimortem and recent.
23) According to him, injury no.10 corresponding to the internal injuries was sufficient to cause death in ordinary course of nature. The cause of death was due to “traumatic and hemorrhagic shock as a result of stab injuries”. The other injuries were possible in the scuffle. The postmortem report is produced on record at Exhibit 76.
24) P.W.16 A.P.I. Machhindra Gangaram Dangate, was the Investigating Officer. He deposed about the investigation carried out by him, after the F.I.R. was lodged. He recorded the statement of various witnesses and RvC 18/34 conducted the spot and inquest panchnamas. He supervised seizure of clothes of the Appellant, the deceased and witnesses. He supervised the recovery of the weapon effected at the instance of the Appellant. He had conducted the personal search of the Appellant. That panchnama is produced at Exhibit 106. This is an important panchnama which records that the Appellant was having stitches and a wound on the forehead. There were abrasions on the back on the right side and on the ribs. There were abrasions on the right thigh and calf. There were abrasions on the left hand. It was also mentioned that because of these injuries, he was admitted in Ward No.9 in Sassoon Hospital. After he was discharged, he was arrested on 11th November 2009. He had sent the articles for chemical analysis. In the cross examination, he admitted that the Appellant was injured when he was arrested. He did not remember whether at the time of the Appellant’s arrest, his medical injury certificate was with the Police. He stated that as the Appellant did not lodge any complaint, no F.I.R. was lodged against the other side. He accepted that the Appellant was beaten and he had come to the Police Station around 07.00 p.m. and he was referred for medical treatment. RvC 19/34
25) This in short was the evidence led by the Prosecution.
26) The defence of the Appellant was of denial. In addition, as a specific defence, his case was that he had started a co-operative housing society. P.W.[2] Ganesh Mane’s mother had executed a power of attorney in his favour pertaining to a land. Subsequently, it was found that she did not own that land. The Appellant, therefore, demanded back his amount taken by P.W.[2] Ganesh Mane. On the date of incident, Ganesh Mane had forcibly taken more than Rs.50,000/- from his office. The Appellant called him telephonically asking for his money. Ganesh Mane asked the Appellant to come to Diamond Chowk. Ganesh Mane and all his relatives had already gathered there to beat the Appellant. He then went to the Police Station to lodge the F.I.R. According to him, one of them had stabbed Manoj and had implicated the Appellant falsely in the case. There was no weapon recovered from him. The Police got it from somewhere else and foisted it on him.
27) The Appellant did not stop at giving answers to the questions under Section 313 of the Code of Criminal Procedure, but he examined RvC 20/34 himself as Defence Witness No.1. He elaborated the defence. He added that he had received a phone call at about 04.00 p.m. from his office that Ganesh Mane and five to six persons had come to his office to collect money forcefully from him and they took away cash amount of Rs.70,000/-. They also took away cheques and demand drafts of Rs.2,00,000/- from his office. He made a phone call to Ganesh Mane. P.W. 2 Ganesh Mane called the Appellant to Diamond Chowk. The Appellant had made a phone call to Shastrinagar Police Station to inform them about it. But he was told by the Police that it was a civil matter and they refused to help. The Appellant thereafter called Ganesh Mane telephonically asking him to return his money. However, Ganesh Mane abused him and asked him to come to Diamond Chowk. The Appellant went there at around 06.00 p.m. Many boys were waiting there. The way to his house passes from Diamond Chowk. P.W.1, P.W.[2] and other family members were present there. The Appellant asked for that amount from Ganesh and Satish. There was an exchange of words. Ganesh and Satish made phone calls and called other boys. All of them started beating the Appellant with belt, rods and wooden sticks. He received many injuries on his forehead, legs and hands. He sustained injuries. His eyes were covered with blood therefore, he could not see RvC 21/34 what was happening. As he tried to clean his eyes, he saw Ashok Mane yielding a knife, who rushed towards the Appellant to give a blow, but two to three boys caught him. The Appellant then got frightened and ran away from the spot. He went to Shastrinagar Police Station to lodge the complaint. The Police allowed him to sit for some time. Then they put him in rickshaw and took him to Aundh Hospital. Finally, they implicated him falsely. He was cross examined by the learned A.P.P. He denied the suggestion that he had taken Rs.30,000/- from one Salim Shaikh and Ganesh Mane had called him to refund that money to Salim Shaikh. He denied that suggestion. He had not made any complaint about the loss of Rs.70,000/- in cash and Rs.2,00,000/- through cheques and demand drafts.
28) The Appellant also examined another defence witness i.e. D.W.[2] Amit Thakur. He was working as a Collection Agent in the Appellant’s office. He deposed that on 8th November 2009, Ganesh Mane along with four to five boys had come to their office and had taken away the cash amount forcibly from the drawer. D.W. 2 informed the Appellant telephonically. He had gone to the Diamond Chowk about 6.30 p.m. At that time, some quarrel was going on and the Appellant was lying RvC 22/34 unconscious there. He took the Appellant to Shastrinagar Police Chowki. On the next day, the Police collected some documents from his office. Police beat D.W. 2 and asked him to bring a baseball stick and knife. He then gave the articles to the Police. He had seen the Police beating the Appellant. In the cross examination, conducted by the learned A.P.P., he stated that he was not aware how to lodge a complaint against public servant demanding bribe. He was given the suggestion that he was not telling the truth. However, he denied the same.
29) D.W. 3 Suresh Gholap was a Police Inspector attached to Yerwada Police Station. The Appellant examined him to prove that the Appellant had approached the Police Station in the evening and then he was taken to the hospital. However, D.W. 3 did not give any answer in favour of the Appellant. The learned A.P.P. did not cross examine him.
30) This is the evidence led by the defence witnesses. RvC 23/34
31) The learned Counsel for the Appellant made the following submissions:- The Prosecution witnesses were not truthful witnesses. They are all interested witnesses. They were close relatives of the deceased Manoj Jadhav. Their evidence is not supported by the circumstances. There were major contradictions between their depositions. P.W. 1 had stated that the Appellant had given threats to commit the murder of P.W.[2] Ganesh Mane and the deceased Manoj Jadhav. However, P.W.[2] Ganesh Mane himself had stated that the threats were given only in respect of P.W.[2] Ganesh Mane. All the panchas were close relatives of the deceased. The learned Judge erred in not relying on the evidence of the defence witnesses. The recovery of the knife from a showcase is highly doubtful. It does not stand to reason as to why the Appellant would keep the knife in a showcase. The injuries suffered by the Appellant were totally ignored. In fact those injuries show that the defence of the Appellant was genuine and therefore the learned Judge should have given him the benefit of doubt. The evidence of P.W.[2] Ganesh Mane does not inspire confidence. It is not supported by the injuries suffered by him. Though there was blood on the recovered weapon, the recovery is highly doubtful and the blood group was inconclusive. The injuries suffered by RvC 24/34 P.W.[2] are shown in the Medical Certificate at Exhibit 110, which show that he had suffered one minor abrasion on left knee and a minor abrasion on left cheek coupled with minimum swelling.
32) Alternatively, he submitted that even if it is held that the Appellant had given a blow with the knife, Manoj Jadhav was never the target. The Appellant’s quarrel was with P.W.2. There was no premeditation or preparation to cause death of Manoj. It was a result of sudden quarrel and therefore, it would fall within Exception (4) of Section 300 of the Indian Penal Code. He submitted that apart from exception (4), exception (2) would be attracted as the Appellant was assaulted by many persons and therefore he had a right of private defence. At the highest, it would be a case of exceeding his right of private defence.
33) The learned A.P.P., on the other hand, submitted that there is consistent direct evidence in the form of P.W.1, P.W.2, P.W.[3] and P.W.11. All of them have described the incident of quarrel and the assault with knife by the Appellant. She submitted that though it could be argued that the deceased was not the target, but in view of Section 301 of the RvC 25/34 Indian Penal Code, the Appellant had caused death intentionally. She relied on a judgment of the Hon’ble Supreme Court dated 21st November 2023 in Criminal Appeal No.2791 of 2023, in the case of Nanhe Vs. State of U.P. She submitted that there is no infirmity in the recovery of the weapon. It was found to be stained with blood of human origin. There were blood stains on the clothes of the Appellant. All these are corroborative piece of evidence, supporting the direct evidence. She submitted that the case would not fall in any of the exceptions to Section 300 of the I.P.C., and therefore, the Prosecution has proved the offence of murder against the Appellant.
34) We have considered these submissions.
35) After perusing the direct evidence of eye witnesses, we find that they are not fully reliable witnesses. There is some truth in their deposition about the actual stabbing by the Appellant on Manoj’s back. To that extent, they are consistent and are truthful. However, we find that they tried to exaggerate their versions of the incident. P.W. 1 had stated that P.W. 2 had told him that the Appellant had threatened to RvC 26/34 commit murder of P.W.[2] Ganesh Mane and the deceased Manoj. This obviously is hearsay evidence. P.W. 2 himself had deposed that the Appellant had threatened to kill P.W. 2 Ganesh Mane. There is no reference of threat to commit the murder of deceased.
36) Though the witnesses stated that the Appellant was carrying a baseball bat with him and started assaulting P.W.[2] with it; however, the medical certificate of P.W.[2] proved that he had suffered absolutely minor injuries. If the Appellant had assaulted P.W.[2] with the baseball bat, then it would have caused more serious injuries. Therefore, it is difficult to believe that the Appellant had assaulted P.W. 2 with the baseball bat.
37) The witnesses have also not given clear evidence as to how the Appellant left the place. P.W. 1 and P.W[3] have stated that he ran away from the spot, whereas, one witness stated that the Appellant’s father came to the spot and took him away. The Appellant’s car was seized from some other place and the baseball bat was recovered from inside the car. It is not explained as to how the Police could find that abandoned car and who actually drove the car to that spot. The pancha RvC 27/34 stated that it was opened with the duplicate key by the Police. It is also difficult to believe that the Appellant took care to take the murder weapon to his house to conceal it in a cupboard but would leave the baseball bat in the car at some other place.
38) P.W.10, examined by the Prosecution was declared hostile, but he had stated that the Appellant and P.W.10 had travelled near the spot in the car. The car was with P.W. 10. The car was parked near new Dyandeep Chowk and then the Appellant had gone walking to Diamond Chowk. There is no further connection of the Appellant with the car.
39) The Appellant has taken a specific defence that P.W. 2 had gone to his office and had forcibly taken an amount of Rs.70,000/- and other cheques and demand drafts. The defence witnesses were also examined. There is hardly any effective cross examination of these defence witnesses. The Prosecution had come with the case that P.W.[2] had asked Appellant to return the money of Salim Shaikh. That particular person Salim Shaikh was not examined by the Prosecution. Therefore, there is reasonable doubt created as to how the Appellant was called at the spot. RvC 28/34
40) However, from the evidence of the Prosecution as well as evidence led by the defence, it is clear that on the date and time of the incident, the Appellant was called to Diamond Chowk regarding some money transaction and thereafter there was a quarrel. Even by the Prosecution’s case and as well as through the defence raised by the Appellant, the dispute was between the Appellant and P.W. 2 Ganesh Mane. There was no occasion for the Appellant to go to the spot with a specific intention to commit the murder of the deceased Manoj Jadhav.
41) The evidence thereafter show that initially there was exchange of words between the Appellant and P.W.[2] Ganesh Mane. According to the Prosecution’s case the Appellant had then assaulted Ganesh Mane with the baseball stick. After that Manoj Jadhav came there to intervene. As mentioned earlier, it is difficult to believe that the Appellant had assaulted P.W. 2 Ganesh Mane with the baseball stick. But his presence at the spot and his quarrel with Ganesh Mane is sufficiently established. According to the Prosecution’s case itself, there were three to four persons from Ganesh Mane’s group, including the deceased Manoj Jadhav, who had intervened. There was a scuffle. The evidence show that the Appellant had suffered injuries in that scuffle. One of the RvC 29/34 injuries was on the forehead. There is substance in the submission of the learned Counsel for the Appellant that there was sudden quarrel with Manoj. It is quite clear that the Appellant had no intention to cause murder of any person, though he was carrying a knife. If he really had such intention, he would have immediately assaulted P.W. 2 Ganesh Mane with the knife, but he used that weapon, only when three to four persons, including the deceased Manoj Jadhav had encircled him and when there was a scuffle. Thereafter, the Appellant took out a knife and gave blow on the back of the deceased Manoj. Therefore, we are of the opinion that the act would fall within the Exception (2) and Exception (4) to Section 300 of the I.P.C., which reads thus:- Exception 2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. RvC 30/34
42) Therefore in this case, the Appellant had acted without premeditation of committing murder. It was a sudden fight, in the heat of passion upon a sudden quarrel and without the Appellant taking any undue advantage or acted in a cruel and unusual manner. The medical evidence shows that though there were other injuries, the fatal injury was only one caused by the knife. Thus, there was a single fatal blow, that too on the back and not on the vulnerable parts, like the stomach, abdomen, heart or head. Therefore, there was no intention of doing more harm that was necessary for the purpose of his own defence. The evidence shows that the Appellant was assaulted on the head and other parts. There was a injury on the head, which required stitches. But, since the Appellant had gone there with an intention to pick a quarrel and to have confrontation with P.W.2, he cannot be given complete benefit of having acted in self defence. However, his act would fall within the Exception (2) and Exception (4) to Section 300 of the I.P.C.
43) From the above discussion, it is clear that the Appellant had no intention to cause such injuries, which resulted in the death, but looking at the force of the blow, he can be attributed the knowledge that the injury was likely to cause death. Thus, the act would fall within Part (II) RvC 31/34 of Section 304 of the I.P.C.
44) There are other corroborative pieces of evidence. Though there is recovery of clothes of the Appellant which showed presence of blood, however, again the investigation in that behalf is not very clear. The clothes were already kept on the table. Therefore, they cannot be directly connected to the Appellant. There is recovery of weapon at his instance from his house. Even if that recovery is held to be properly proved, as a result of the above discussion, we are of the opinion that the offence would be culpable homicide not amounting to murder and would fall within Part (II) of the Section 304 of the I.P.C.
45) We have considered the submissions of the learned A.P.P., with reference to the Judgment of the Hon’ble Supreme Court in the case of Nanhe Vs. State of U.P. In that case, the Hon’ble Supreme Court had held that the offence punishable under Section 302 of the I.P.C., was proved, but in the present case, we have reached the conclusion that there was no intention to cause death or cause such bodily injuries, which as was likely to cause death. The requisite intention for proving RvC 32/34 the offence of murder punishable under Section 302 of the I.P.C. and even under Section 304 Part (I) of the I.P.C. is missing.
46) As a result, the impugned judgment and order requires interference. As far as the sentencing part is concerned, the learned A.P.P. submitted that the maximum punishment be imposed. The learned Counsel for the Appellant, on the other hand, submitted that some leniency be shown. He has a family of wife and two children, who are dependent on him. He has no criminal antecedents. In these circumstances, we have considered that the Appellant himself had suffered a serious injury on his head. He had used the weapon only as a last resort. Therefore, we are inclined to show some leniency to him. In our opinion, the sentence of rigorous imprisonment of five years, would meet the ends of justice. Hence, the following order.: O R D E R: [i] The Appeal is partly allowed. [ii] The Judgment and Order dated 27th April 2023, passed by the Learned Additional Sessions Judge, Pune in RvC 33/34 Sessions Case No.255 of 2010, convicting and sentencing the Appellant for commission of offence punishable under Section 302 of the I.P.C. thereby sentencing him to suffer life imprisonment, are set aside. Instead, the Appellant is convicted for commission of offence, punishable under Section 304 Part (II) of the I.P.C. He is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.3,000/- and in default, to suffer further rigorous imprisonment for three months. [iii] The Appellant is granted set-off under Section 428 of the Code of Criminal Procedure. [iv] The Appeal is disposed of. (SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.) RvC 34/34