1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1269 OF 2006 WITH CRIMINAL BAIL APPLICATION NO.852 OF 2010 WITH CRIMINAL BAIL APPLICATION NO.908 OF 2011 1 Amar Gurunath Kanse Age: 26 years, Occ; Driving, R/o. Shramik Vasahat, Warje Malwadi, Pune 2 Sachin Balu Borhade Age about 20 years, Occ; Nil, R/o. Warje Malwadi, Pune 3 Sachin Manikrao Gavhane Age: 20 yrs., Occ: Diemaker, r/o. Warje Malwadi, Pune (At present in Yerwada Central Prison) ..Appellants. v/s. 1 The State of Maharashtra 2 Sanjay Shivaji Dodke Age: 22 years, R/o Dodke Building, Survey No.136, Near Vitthal Mandir, Warje, Malwadi,Pune ..Respondents. Mr. C.G.Gavankar i/by Ms Sharan Patole, advs. for the Appellant No.1. Mr. Milind Deshmukh, adv. for the respondent nos.2 and 3. Smt. P.P.Shinde, APP for the State. CORAM : J.H.BHATIA, J. DATE : 13th October, 2011 2 ORAL JUDGMENT: 1 The appeal is preferred by the original accused nos.1 to 3 challenging the judgment and order dated 21st November, 2006 passed by the 13th Ad-hoc District Judge and Additional Sessions Judge, Pune in Sessions Case No.62/2006, whereby the accused persons were convicted for the offence punishable under Section 307 r/w section 34 IPC and were sentence to undergo R.I. for 10 years and to pay a fine of Rs.10,000/- each and in default to pay fine to undergo further R.I. for one year. In case, the fine amount is recovered, a sum of Rs.15,000/- out of the fine amount is to be paid to the victim Sanjay Shivaji Dodake, 2 Prosecution case, in brief, is that on 3.11.2004 at about 9 pm, injured P.W.1 Sanjay Shivaji Dodake closed his shop situated at Yashodeep Chowk, Pune and was returning home by walk. After he had crossed Tulja Bhavani Temple, abruptly he felt a blow on his head. As he turned around, he noticed that the accused no.1 Amar Kanse and the accused no.2 Sachin Borhade @ Pangya were present with swords and they assaulted P.W.1 Sanjay Shivaji Dodake with swords. Sanjay Shivaji Dodake tried to defend himself by raising his right hand and in the result, he also suffered certain injuries on his right hand. According to the prosecution, Manish Barate and Sachin @ Laturya and 2 or 3 other persons were also present near the 3 spot behind the accused nos.1 and 2. They had also given blows to P.W.1 Sanjay Shivaji Dodake. Sanjay ran away towards his house. At that time, his uncle Rambhau Dodake and brother Sachin Dodake came there and saw injuries. They took him to the hospital of Dr. Nitin Seth. After preliminary medical aid, he was shifted to Dinanath Mangeshkar Hospital for further treatment. F.I.R. of P.W.1 Sanjay Shivaji Dodke was recorded at the hospital by PSI Nemane. On the basis of that crime no.601/2004 was came to be registered by Kothrud police station. During the investigation, spot panchanama was prepared. Blood stained clothes of the injured as well as clothes of the accused persons were seized. Swords and two iron pipes came to be recovered on the basis of information given by the accused no. 1. Amar Kanse. After investigation, charge-sheet came to be filed against the accused nos.1 to 3 and then the case was committed to the Court of Sessions. 3 All the accused were charged with section 307 r/w section 34 of the IPC and they pleaded not guilty. According to them, they were falsely implicated because of the political rivalry. 4 On behalf of the prosecution, in all seven witnesses were examined and some documents were also placed on record. On behalf of the defence, Manish Barate was examined as witness. According to Manish Barate, P.W.1 Sanjay Shivaji Dodake was assaulted and injured by two or 4 three unknown persons and not by the accused persons. After hearing the parties, the learned trial Court convicted and sentence all the three accused persons as stated above. 5 At the outset, the learned counsel for the accused nos.1 and 2 made a statement that they would not press the appeal on merits as far as accused nos.1 and 2 are concerned but they urged that sentence of R.I. Of 10 years for the alleged offence is excessive and needs to be appropriately reduced. According to them, these two accused have been actually in jail for more than 6 years and 5 months and if period of remission is counted, the sentence undergone may be more than 8 years. According to them, the sentence as already undergone is more than sufficient for the offences committed by them. As per the record, accused nos.1 and 2 were arrested on 8.11.2004 and were granted bail on 21.5.2005. Thus, they were in custody for six moths and fourteen days as undertrial prisoners. On 21.11.2006 when the impugned order of conviction was passed, they were taken in custody and since then they are continuously in jail. This period is 5 years 10 months and 23 days. Thus, total period during which they have been actually in jail is 6 years 5 months and 7 days. 6 If the evidence of P.W.1 Sanjay Shivaji Dodake and the F.I.R. Ex.25 are seen, it appears that without any reason, accused nos.1 and 2 had assaulted with swords and caused injuries on his head and hand. He 5 does not disclose any previous enmity or any reason for the assault on him. Evidence of P.W.5 Amol Rege from Dinanath Mangeshkar Hospital shows that P.W.1 Sanjay Shivaji Dodake had suffered following injuries on his head: 1 Incised wound left fronto parietal region 6” in length bond deep. 2 Incised wound left supra-orbital region 3” x 1/4” x muscle deep 3 Incised wound Left lateral angle o eye V shaped. 4 Incised wound on right frontal region 2.5” x 1/4” superficial. 5 Incised wound occipital region 4” x 1/4” x bone deep arterial bleeding (+). He had also suffered four incised wounds on his right forearm. The evidence reveals that there was fracture of the right ulna, right thumb and right middle finger. However, there was no fracture of the skull bone. He had suffered injuries on the right hand when he raised the same to defend against assault by the accused persons by swords on his head. Though five blows had landed on his head, not a single fracture was caused. The offence of attempt to commit murder is punishable under section 307 IPC with imprisonment for life or imprisonment, which may extend to 10 years 6 and fine. Taking into consideration the facts and circumstances, the trial Court rightly felt that it was not case where the life imprisonment could be awarded. Therefore, the maximum sentence, which could be awarded, was imprisonment for 10 years and the trial Court awarded maximum sentence. Taking into consideration the fact that though there were number of injuries not a single serious injury was caused on the head or any vital part of the body. Therefore, in my opinion, sentence of imprisonment, which the accused nos.1 and 2 have already undergone is sufficient to meet the ends of justice. 7 Coming to the case of the accused no.3, it appears that it was the case of no evidence. In the F.I.R. P.W.1 Sanjay Shivaji Dodake had stated that when a blow landed on his head, he turned around and found that accused no.1 Amar Kanse and the accused no.2 Sachin Balu Borhade @ Pangya were armed with weapons like swords. They were assaulting with the same. He raised his right hand to defend himself and suffered several injuries. According to him, they also gave two or three blows on his head and caused injuries. Having stated so in the F.I.R. , P.W.1 Sanjay Shivaji Dodake stated that Manish Barate, Sachin @ Laturya and other two or three persons were standing behind the assailants, i.e., accused no.1 Amar Kanse and the accused no.2 Sachin Borhade @ Pangya. As per the F.I.R., when he was being assaulted, he ran away towards his house and at 7 that time, his uncle Rambhau and brother Sachin Dodake also came there. They took him to the hospital. In the F.I.R., he has not uttered a word that he was assaulted by the accused no.3. Sachin, who is also known as Laturya .In fact in the F.I.R., he has shown the presence of Manish Barate, who is examined as defence witness, accused no.3 Sachin @ Laturya and two or three other accused persons behind the assailants. Thus, besides, the accused nos.1 and 2, who were actually assailants, presence of 4 or 5 other persons was shown on the spot. But the F.I.R. does not disclose that any of these 4 or 5 persons had also assaulted him. In his examination-in- chief before the Court however, he deposed that accused no.3 Sachin gave fist and kick blows to him and he also made an attempt to make him lie on the ground but he could not. He deposed that accused no.3 was also possessing some object, like sword and he had also given blows to him. His evidence in examination-in-chief against the accused no.3 does not find place in the F.I.R. It was a clear improvement over his statement before the police. The learned Trial Court has not considered this aspect of the matter and relied upon deposition of the P.W.1 Sanjay Shivaji Dodake before the Court without looking to the contents of the F.I.R., which was lodged by him shortly after the incident in the hospital. 8 P.W.2 Subhash Barate was examined as eye witness. He also deposed that accused nos. 1 and 2 gave blows on the head of P.W.1 Sanjay 8 Shivaji Dodake with weapon like sword. According to him, thereafter the accused no.3 Sachin Gavhane attempted to make P.W.1 Sanjay Dodake lie on the ground by giving fist and kick blows but PW.1 Sanjay did not fall on the ground. Then he deposed that all the three accused started giving blows by weapons like swords and P.W.1 Sanjay started shouting and ran away. It is material to note that in the F.I.R., the presence of Sachin Gavhane at or near the spot of the incident was not shown. As per the F.I.R. Manish , Sachin @ Laturya and two or three unknown persons were present behind the accused no.1 and 2 at the time of assault. F.I.R. as well as oral statement of Sanjay show that when he was running away from the spot , his uncle Rambhau Dodake and brother Sachin Dodake also came running there and took him to the hospital. However, neither Rambhau nor Sachin was examined as prosecution witness. Taking into consideration the contents of the F.I.R. , I find that the evidence of P.W.1 Sanjay Shivaji Dodake and that of P.W.2 Subhash Barate against accused no.3 Sachin is totally unbelievable and unreliable. This was clear development over the original story given to the police in the F.I.R. As per the F.I.R. no role was attributed to the accused Sachin Gavhane. He was shown to be one of the five persons, who were present near the spot of the incident behind the accused. Merely on the basis of his presence at the spot, he could not be held guilty of the offence of attempt to commit murder. The trial Court 9 clearly committed error in appreciating the evidence led by the prosecution. Taking into consideration all the facts and circumstances and the evidence on record, conviction of the accused no.3 Sachin can not be sustained and is liable to be set aside. 9 For the aforesaid reasons, the appeal is partly allowed. Order of conviction and sentence as against the accused no.3 Sachin Manikrao Gavhane stands set aside and he is acquitted of the charge under section 307 r/w section 34 of the IPC. His bail bonds stand cancelled. 10 While conviction of the accused no.1 Amar Kanse and the accused no.2 Sachin Borhade for the offence punishable under Section 307 r/w section 34 of the IPC is maintained, the sentence is reduced to the imprisonment as already undergone and they be set at liberty forthwith, if not required in any other case. 11 As the appeal itself is finally heard and disposed off, bail application nos.852 of 2010 and 908 of 2011 do not survive and stand disposed off accordingly. (J.H.BHATIA, J.)