1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.383 OF 1992 WITH CRIMINAL APPLICATION NO.1522 OF 2010 Mahesh Kamlakar Mangale aged 20 years, Occ: Education, residing at Tejswani Housing Society Baner, Pune ...Appellant (Org. Accd. No.2) V/s. The State of Maharashtra ...Respondent. Shri Asim Sarode i/by Asim Sarode and Associates, adv. for the appellant/applicant. Smt. P.P.Bhosale, APP for Respondent/State. WITH CRIMINAL APPEAL NO.510 OF 1993 Ramesh Sopan Tambat Age 29 years, residing at Kusgaon, Tal: Bhor, Dist. Pune (At present in Yerwada Central Prison, Yerwada) ...Appellant. v. The State of Maharashtra ...Respondents. Mr. Sachin Thombare a/w Pralhad Paranjpe i/by Sunil Kadam, advs. For the Appellant. Smt. P.P.Bhosale, APP for the Respondent/State. 2 CORAM : J.H. BHATIA, J. DATED : DECEMBER 13, 2010 ORAL JUDGMENT: 1 These two appeals are preferred by the original accused nos. 2 and 1 respectively challenging their conviction for the offences punishable under Sections 307 r/w 34 of the I.P.C. and sentence to undergo R.I. for seven years with fine of Rs.2,000/- each in Sessions Case No.501 of 1991 decided by the learned Additional Sessions Judge, Pune on 16.6.1992. As both the appeals arise out of the same judgment, they may be disposed off by this common judgment. 2 Prosecution case in brief, is that on 1.6.1991 at about 11.15 p.m. accused no.1 Ramesh, accused no.2 Mahesh, accused no.3 Sunil and accused no.4 Raju went to Arpan Juice Bar situated at Senapati Bapat Marg near hotel Sahara. They demanded pav-bhaji from P.W.4 Santosh Bhatewara, who was owner of Arpan juice bar. However, P.W.4 Santosh told them that shop was closed and he could not give pav-bhaji. On this accused persons abused and threatened him and told him that they would be back within a few minutes and pav-bhaji should be ready. Then they went to hotel Sahara and abused manager of that hotel. Thereafter they came back to Arpan Juice bar and again they were told 3 by P.W.4 Santosh that pav-bhaji could not be served. On this accused persons began to throw chairs and tables inside Arpan Juice Bar. At that time, P.W.9 PSI Tulsidas Mahajan happened to pass by that road on his bike. P.W.4 Santosh called him. P.W.9 PSI Mahajan called accused no.3 Sunil and tried to convince him not to create trouble. At that time, accused no.1 Ramesh and accused no.2 Mahesh allegedly assaulted PSI Mahajan with sharp and cutting weapons namely, Sattur and koyta and caused injuries on his head and other parts of the body. It caused bleeding injuries on his person. After that, all the accused persons ran away. PSI Mahajan was immediately taken to the hospital of P.W.8 Dr. Arvind Kulkarni by P.W.4 Santosh. PSI Mahajan was examined by Dr. Kulkarni and was also admitted in the said hospital. He was under the treatment of Dr. Kulkarni as indoor patient. As PSI Mahajan was admitted in the hospital. Report of the incident was lodged by PW 4 Santosh at Pandav Nagar chowky of Chaturshrungi police station. On the basis of that report, offence was registered. The statement of PSI Mahajan was recorded on the next day. On 3.6.1991 accused persons were arrested. Statements of several witnesses were recorded. Blood stained clothes of PSI Mahajan and of accused persons were seized. On the basis information given by the accused nos.1 Ramesh and 2 Mahesh, 4 Sattur and Koyta came to be discovered and seized. After investigation, police filed charge-sheet against four accused persons for the offences punishable under Sections 307, 323, 504, 506 r/w Section 34 of the I.P.C. and under Section 135 r/w 37(1)(a) of the Bombay Police Act and under Section 4 r/w Section 25 of the Arms Act. Case was committed to the Court of Sessions in due course. 3 Charges were framed against accused persons for the above offences. They pleaded not guilty. According to them, they were falsely implicated in this case. On behalf of the prosecution, in all 13 witnesses were examined and several documents were placed on record. After hearing prosecution evidence and the arguments for both the parties, the learned trial Court found that there was no substance to implicate accused no.4 in the case and also there was no material to show that accused no.3 had common intention with accused nos.1 and 2. In the result, accused nos.1 and 2 were convicted for the offences punishable under Section 307 r/w 34 of the I.P.C. and were sentenced as stated above. They were acquitted of the remaining charges. Accused nos.3 and 4 were acquitted of all the charges. 4 The learned counsel for the appellants vehemently contended that prosecution evidence is not reliable. None of the 5 witnesses was knowing the accused persons before the incident. No test identification parade was held. Two days after the incident, they were arrested by the police and shown to the witnesses, therefore, identification of the accused persons is doubtful. It is contended that P.W. 7 Nadim, who was manager of the hotel Sahara was only independent witness and he did not support the prosecution. PSI Mahajan was not taken to the Government hospital nor he was examined and treated by medical officer at the Government hospital even though it was medico- legal case and, therefore, evidence of P.W.8 Dr. Kulkarni, who is private doctor, can not be relied upon. It is further contended that seizure of weapons and blood stained clothes from the accused persons is also not reliable. Finally it is contended that even if the whole prosecution case is accepted to be true, still there was no common intention between the accused nos. 1 and 2 and they had no intention to cause death of PSI Mahajan. Therefore, the accused could not be convicted for the offences punishable under Section 307 r/w 34 of the I.P.C. 5 Before proceeding to scrutinise prosecution evidence, it will be useful to note that the accused no.2 Mahesh has filed application no. 1522 of 2010 contending that he was less than 18 years of age at the time of alleged incident and, therefore, he was juvenile within the meaning of 6 Juvenile Justice (Care and Protection of Children) Act, 2000 and, therefore, in view of the provisions of Section 7A of the said Act, he can not be sent to jail and the question of his juvenality, which is now raised, has to be decided. In support of this claim, the accused no.2 has filed two certificates. As per the admission card of S.S.C. examination held in March, 1992 by the Maharashtra State Board of Higher Secondary Education, his date of birth was 1.6.1974. Another document is birth certificate issued by the Kolhapur Municipal Corporation on 8.6.93, which shows that date of birth of the appellant Mahesh was 27.12.1973. It is material to note that incident of this case had taken place on 1.6.91. Both the above referred documents appear to have been prepared afterwards. The admission card for S.S.C. examination appears to have been issued sometimes in February or March, 1992 and therein date of his birth is 1.6.1974 while birth certificate issued by Municipal Corporation shows his date of birth as 27.12.1973. Thus, the dates of birth in these two documents are not consistent and, therefore, none of them is reliable document. No document from any school, where accused no.2 Mahesh was admitted and had taken education has been produced to show date of his birth declared at the time of admission and recorded in the school record. The question of his age is raised more than 7 19 years after the incident and now he is aged about 37 to 38 years and, therefore, even the medical evidence at this stage will be of no help to determine his correct age. In view of these circumstances, the learned counsel for the accused no.2 Mahesh did not press the application to declare him to be juvenile on the date of incident and the application stands disposed off accordingly. 6 Coming to the facts of the present case, it appears that P.W.3 Suresh, P.W.4 Santosh, P.W.5 Sadashiv, P.W.9 PSI Tulsidas Mahajan, P.W.10 Balu claimed to be eye witnesses of the incident. P.W.7 Nadim, who was working as receptionist or manager at the Sahar Hotel, did not support the prosecution and was declared hostile. First witness about the beginning of the incident is P.W.4 Santosh. According to him, he was owner of Arpan Juice Bar situated in the compound of Sahara hotel. This Juice bar used to remain open from 6 p.m. to 11 p.m. According to him, on 1.6.91 at about 11.15 p.m., three persons,who were identified accused nos.1,2 and 3 by him, came to his juice bar and asked him to serve pav- bhaji. However, he told them that Juice Bar was closed and, therefore, he could not serve pav-bhaji to them. However, they insisted to serve pav- bhaji and also threatened with consequences of not serving them. They also told him that they would be coming back within a few minutes. 8 Having said so, they went to Sahara hotel. At Sahara Hotel also they assaulted and abused manager and again came to Juice Bar and demanded pav-bhaji. As P.W.4 Santosh refused to serve pav-bhaji, they started throwing chairs and tables here and there. At that time, P.W.4 Santosh saw P.W.9 PSI Mahajan passing from the road on his motor bike. P.W.4 Santosh requested him to help. At that time all the three accused persons were inside the juice bar and were throwing chairs. PSI Mahajan came there and called one of them, i.e., accused no.3 outside the bar and tried to convince him against creation of any trouble. At that time remaining two accused persons, who are identified as accused nos.1 and 2, assaulted PSI Mahajan. As per the evidence of P.W.4 one of them threw a weapon, which hit on the head of PSI Mahajan. Another accused gave a blow with weapon on the face of Mahajan and caused injuries below his eye and on the nose. First blow on the head was given by accused no.1 Ramesh and second blow on the face was given by accused no.2 Mahesh. According to him, accused no.1 gave a third blow on the head of PSI Mahajan. Hearing the shouts, other people also came there and then accused persons ran away. P.W.4 Santosh took PSI Mahajan to Om clinic where he was admitted. 7 P.W.9 PSI Mahajan deposed that on 1.6.1991, he was on 9 medical leave. On that day at about 9.45 p.m. he left his house on his motor bike and went to the hotel Salokha. He was there for about one hour. At about 11 p.m. he left that hotel to return to his house. When he was taking turn from near the hotel Sahara, he was called by P.W.4 Santosh, owner of the Arpan Juice Bar; therefore, he stopped there. P.W. 4 Santosh told him that three persons were creating trouble in his juice bar and were demanding pav-bhaji. Due to this, PSI Mahajan parked motor bike and went to juice bar alongwith P.W.4 Santosh. He saw that three persons were throwing tables and chairs. He called one of them, i.e., accused no.3 and tried to convince him against such trouble. At that time, he was standing at the gate of the juice bar alongwith the accused no.3, while other two persons, who were identified as accused nos.1 and 2, were inside the bar. According to PSI Mahajan he saw those two persons running towards him and, therefore, to save himself, he threw bicycle towards them. At that time one of them, i.e., accused no.1 hit on the backside of his head with sattur and another person, i.e., accused no.2 gave a blow on his face with a weapon. Accused no.1 again gave a blow on his head. At that stage, accused no.3 caught PSI Mahajan and there was scuffle between them. At that time accused no.4 also came there and told other accused persons that P.W.9 was a police officer and, 10 therefore, they should not assault him. After this disclosure by the accused no.4, all the accused persons ran away. 8 P.W.3 Suresh claims that he was customer and had been to Arpan Juice Bar for taking juice. P.W.5 Sadashiv was friend of P.W.3 Suresh and he had also gone to juice bar for taking juice alongwith him. P.W.10 was in service of Arpan Juice Bar. All these witnesses namely, P.W.3 Suresh, P.W.5 Sadashiv and P.W.10 Balu supported the prosecution case. According to P.W.3 Suresh and P.W.10 Balu in all four accused had come to the juice bar while according to P.W.5 Sadashiv only three persons had come there but according to each of them only two persons, i.e., accused nos.1 and 2 had assaulted PSI Mahajan with the weapon in their hands. As far as accused nos.3 and 4 are concerned, they are already acquitted because the trial Court also came to conclusion that only accused nos.1 and 2 had actually assaulted. Therefore, the discrepancy about the total number of persons does not go to the root of the matter as far as accused nos.1 and 2 are concerned. 9 Evidence of P.W.12 PSI Vasant Bhole shows that during the relevant period, he was attached to Deccan Gymkhana Police station. After the above incident, all the police station in the city were informed about the assault on the PSI Mahajan and description of the assailants 11 was also given. Therefore, police were in search of the assailants. On 3.6.91 P.W12 PSI Bhole got information that four persons , who had assaulted PSI Mhajan, were hiding in the lower part of Vetalbaba Tekdi behind M.I.T College. Therefore, he alongwith his staff went to the that area at about 7 p.m. and found Accused nos.1 to 4. They also corresponded with the description of the assailants and, therefore, they came to be arrested. As the offence was registered by the Chaturshrungi police station, all of them were transfered to that police station. Ex.37 is the arrest panchanama, Ex.36 is the report given by him. 10 It is contended on behalf of the accused/appellant that names of the accused persons were not known and after the arrest, Test Identification Parade was not held and, therefore, their identification for the first time before the Court by the witnesses cannot be relied upon. However, it appears that description of the accused persons was given to the police and as noted above description of the assailants was also flashed to all the police station. Incident occurred on 1.6.91 at about 11.15 p.m. and after that PSI Mahajan was taken to the hospital, Evidence of P.W.13 PSI Thorat, who was Investigating Officer shows that from 2nd June, 1991 investigation was given to him. The evidence shows that on 2nd June, PSI Mahajan was not in a position to make 12 statement and on 3rd his statement was recorded. Search for the accused was made and all the four persons were arrested on 3rd June, 1991 at about 7 p.m. It means all the accused persons were arrested within 48 hours. Not one but number of persons had seen them at the time of commission of offence, therefore, merely because Test Identification Parade was not held, evidence of these eye witnesses could not be discarded, particularly, when the testimony of the eye witness is also corroborated by the other evidence. 11 P.W.2 Kumar Sawant was a panch witness about the seizure of clothes from the accused persons including accused nos.3 and 4, who are acquitted. His evidence shows that on 6.6.91, he was called at Chaturshrungi police station. All the four accused persons were present there. Clothes were seized under panchanama, Ex.19. P.W.13 PSI Thorat has also deposed about the seizure of clothes from the accused persons under panchanama, Ex.19. He explained that though accused persons were arrested on 3rd June, 1991, their clothes could not be seized till 6.6.1991 as alternative clothes were not available, in spite of the message given to their family members and when the alternative clothes were made available to them, clothes on their person came to be seized. Seizure of the clothes of PSI Mahajan vide panchanama, Ex.11 was 13 admitted on behalf of the accused during the trial. Muddemal property was sent to C.A. by PSI Thorat with his covering letter dated 1st July, 1991. As per the C.A.Report, Ex.40, the clothes seized from PSI Mahajan as well as clothes seized from all the four accused persons were stained with human blood. However, blood group could not be determined. Accused persons were arrested on 3rd, i.e., after 48 hours after the incident and on 6.6.91, clothes from their person was seized. At that time also blood stains were seen and C.A. Report has confirmed the same. This provides corroboration to the prosecution story. 12 Evidence of P.W.6 Madhukar and PSI Thorat reveals that on 7.6.91 at about 1 p.m., accused no.1 Ramesh was interrogated in the presence of panchas and he agreed to produce sattur, which was concealed by him at Bahiratwadi. This information was reduced to writing as per memorandum Ex.25, thereafter police, panchas and the accused no.1 went to Bahiratwadi. Accused no.1 led them to a tree of Rui, which was on the slope of the hill and he took out sharp aged weapon, called Sattur, hidden under the earth. There were blood stains on it. Said weapon article 11 was seized and sealed under Ex.25A. As per this witness, thereafter they returned to the police station and accused no. 2 Mahesh was interrogated. He told police and panchas that he had 14 hidden weapon at Bahiratwadi. That information was also reduced to writing as per memorandum Ex.26. He alongwith police and panchas wen to Bahiratwadi and he produced one koyta, Art.12 lying hidden under a tree, behind the public toilets. That was seized under panchanama Ex.26A. It was also having blood stains. Description of the weapons is given in Ex.25A and 26A. In the cross-examination, these witnesses could not be shattered. C.A. Report, Ex.40 reveals that on these two weapons also there were stains of human blood though blood group could not be determined. Merely because blood group could not be determined, seizure of these weapons on the basis of information given by the accused nos.1 and 2 cannot be discarded. In my opinion, this evidence provides corroboration to the testimony of the eye witnesses. 13 Evidence of P.W.4 Santosh and PSI Mahajan shows that PSI Mahajan was taken to Om Hospital run by P.W.8 Dr.Kulkarni, who is a general surgeon. Evidence of P.W.8 Dr. Arvind Kulkarni shows that immediately after PSI Mahajan was brought to his hospital, he examined him and noticed following injuries: 1) CLW deep, Rt. Occipito parietal region 4” x 1” bone deep fracture outer table bleeding 2) CLW on vertex 4”x1/2”x scdp. 15 3) CLW below Rt. Eye 2 1/2” x 1/4” into skin deep. 4) CLW on nose 2” x through and through. The wounds were profusely bleeding. As operation was necessary, he performed it. Accordingly, he issued injury certificate Ex.29. It is material to note that though it was a medico-legal case, PSI Mahajan was not taken to the Government Hospital nor he was examined by the medical officer of the Government Hospital. Therefore, all the proper care, which was required to be taken in medico-legal case, was not taken. Even though Dr. Kulkarni has shown fracture of the skull bone as per the injury no.1, he did not produce any X-Ray plate or other material to support his version that there was fracture. Therefore, in my opinion, in absence of any X-Ray plate showing fracture, oral evidence of Dr. Kulkarni in that respect can not be taken as its face value. If evidence about fracture is not believed, it appears that there were two contused lacerated wounds on the head. Injury nos.3 and 4 were contused lacerated wounds below the right eye and on the nose. As per the prosecution evidence, injury nos.3 and 4 were caused with a single blow given by the accused no.2 with koyta. As per the evidence of the witnesses, injury no.1 was caused by the accused no.1 Ramesh by 16 throwing the weapon, called Sattur, which hit on the backside of the head. Injury no.2 was caused by second blow given by accused no.1 with sattur. In his evidence Dr.Kulkarni tried to state that injuries were dangerous and cumulative effect could be death in the ordinary course of nature. According to him, the injury no.1 was dangerous to the life. However, he admitted that in injury certificate, he had not mentioned that injury no.1 was dangerous. This was important improvement in his evidence before the Court. According to him, due to injury nos.3 and 4, permanent scar and deformation could have been possible. However, it does not mean that permanent scar or deformation of the face was actually caused. Permanent scar or deformation of the face “could have been caused” and “was actually caused” are two different things. There is no material evidence on record to show that injury nos.3 and 4 have actually caused any deformation of face of PSI Mahajan. Therefore, in my opinion, prosecution has failed to prove that any of the injuries was grievous hurt. In view of these circumstances, it must be held that each of the injury was simple hurt. 14 While evidence of Dr.Kulkarni provides corroboration to the prosecution case that the accused nos.1 and 2 had assaulted PSI Mahajan with sharp weapons and caused injuries to him, question arises 17 whether accused could be held guilty for the offence of attempt to murder under Section 307 of the I.P.C. For the offence of attempt to murder, most important thing is the intention or the knowledge of the accused. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished for the offences of attempt to murder. It is not necessary that by the said act, injury shall also be caused. If the injury is not caused, punishment may be imprisonment which may extend to 10 years. If injury is also caused, offender may be liable to be sentenced to imprisonment for life or imprisonment upto 10 years. Injury only decides gravity of the offence of attempt to murder for the purpose of deciding what sentence could be awarded. It is, therefore, necessary to find out whether accused persons did act with such intention or knowledge that by that act, had the injured died, they would be held guilty for the offence of murder. 15 In the present case, admittedly, accused persons were not known to PSI Mahajan. There was no previous enmity. Accused persons had not come to the Arpan Juice Bar to have any fight or quarrel with PSI Mahajan. It appears that they wanted P.W.4 Santosh to serve them pav-bhaji, which he refused because he was closing juice bar as its time 18 was upto 11 p.m. while accused persons had come to him 15 minutes after closing time. There is nothing on record to show that accused persons wanted pav-bhaji free of charges or they had come there to commit some offence even though they were armed with weapons. After the trouble started in the juice bar, P.W.4 Santosh called PSI Mahajan for help, when PSI Mahajan was incidentally passing from the road in front of juice bar at that time. When PSI Mahajan was trying to convince accused no.3 against such trouble, the accused persons rushed towards PSI Mahajan and PSI Mahajan to save himself threw bicycle towards the accused. It is stated that at that time, accused no.1 Ramesh threw sattur towards PSI Mahajan, which hit on the backside of his head. Accused no.2 gave a single blow on his face causing injury nos.3 and 4. Accused no.1 gave one more