1 cr-apeal.650-2007.sxw2007 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 650 OF 2007 Ajay Madhusudan Mukharjee, ] age about 31 years, presently ] incarcerated at Kolhapur Jail, Kilhapur, ] otherwise a permanent resident of ] Indiranagar Pipeline Zopadpatti, opposite ] Bandra Terminus, Bandra (E), ] Mumbai- 400 051. ]..Appellant in Custody [Ori. Accused no.3] Versus The State of Maharashtra ]..Respondent through Nirmal Nagar P.S. ][Ori. Complainant] (C.R. No. 63 of 2006) WITH CRI.APPEAL NO. 365 OF 2008 Kamlesh Khusal Rewar ] Occ. Servie, Age 35 years. ] adult, inhabitant of Mumbai ] residing K.P.Sharma Chawl no.8 ] Room no.3, Jawahar Nagar, ] Khar (E), Mumbai 400 051 ] At present in Yeroda Jail, Pune ].Appellant in Custody [Ori. Accused no.1] Versus The State of Maharashtra ] (At the instance of Nirmal Nagar ] Police Station in CR No.63 of 2006 ]. Respondent. CRI. APPLICATION NO. 136 OF 2007 IN CRI. APPEAL NO. 650 OF 2007 WITH CRI. APPLICATION NO. 1269 OF 2010 IN CRI. APPEAL NO. 365 OF 2008 2 cr-apeal.650-2007.sxw2007 .... Dr. Yug Mohit Chaudhry, Adv. for the applicant. Mrs. M.M. Deshmukh, APP for the Respondent-State .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. RESERVED ON : FEBRUARY 10, 2011. DECLARED ON : FEBRUARY 24, 2011 JUDGMENT: [PER U.D.SALVI,J.] 1 An application for modification of the order dated 2.5.2008 passed by this court for granting bail to the appellant-accused in the present appeal brought to the fore core issues in the present appeal. 2 The appellant-accused believes that he is having excellent case in the appeal challenging the judgment and order passed by the learned 10th Ad-Hoc Additional Sessions Judge, Sewree, Mumbai convicting the appellant-accused under Section 302 read with Section 34 of IPC, 1860 along with two other co-accused and sentencing them to suffer life imprisonment and to pay a find of Rs.10,000/- each and in default to suffer R.I. for two years each in Sessions Case No.495 of 2006 on 9.11.2006, and, therefore, this court after having appreciated this aspect had released him on bail on 2.5.2008. However, he continue to languish in jail, for his inability to furnish a surety as required and thus 3 cr-apeal.650-2007.sxw2007 could not avail of the bail order. It has been further pointed out that the records and proceedings are available for appreciation of the merits of the present appeal and private paper books have also been prepared and circulated. 3 Considering this submission made on behalf of the appellant- accused by the learned counsel Dr. Chaudhry, and we thought it just and necessary to hear the appellant-accused on the merits of the appeal itself, and as such both appeal aw well as the application were taken up for hearing. 4 Concisely the case of the prosecution is that the deceased Amar son of Smt. Suman More the deceased fell dead to the fist blows given by his friends the accused Ajay Mukhkharjee, kamlesh Rewar and Ravi Mukharjee at about 17.30 hours near railway building no.222 in front of Indira nagar pipeline, Khar (E), Mumbai- 40051. The complainant Smt. Suman More had revealed in her complaint that accused used to drink Tadi and smoke ganja; and on the fateful day when she was in the locality near Teen bungla police station chwoki, one Khiladi-owner of the pan-bidi shop in loud voice told her that her son Amar was being assaulted by his companions Kamlesh Rewar and others at pipeline road Indira nagar, and thereupon, she went to that place and found that her son was being 4 cr-apeal.650-2007.sxw2007 assaulted by Kamlesh Rewar and Ravi Mukjarjee and the appellant- accused- Ajay Mukharjee with hands, and before she could reach him there, her son fell down and his companions removed him in an autorickshaw to V.M. Desai Hospital. Shortly, thereafter the complainant noticed that the accused were in a police van proceeding towards V.M.Desai Hospital and in the said hospital her son was declared dead. 5 Crime was registered against the accused and two others being CR No.63 of 2006 under Section 302 read with Section 34 of IPC with Nirmal Nagar Police Station on 11.3.2006 on the basis of the said complaint. One Mahesh Sudam Jadhav showed the place of offence to the police. Nothing incriminating was seized from the said place. The accused were arrested in the presence of the panchas at Nirmal Nagar Police Station on the same day. Except noticing the fresh injury on the back and full shirt with broken buttons on his person, nothing noticeable was found on the person of the accused-Kamlesh Rewar. 6 The body of the deceased Amar was sent to the Government Hospital for post-mortem examination. Viscera from the body of the deceased was also sent for forensic investigation to the Forensic Science Laboratory at Kalina, Mumbai. Statements of the accused were also recorded. Clothes of the deceased Amar as well as the accused were 5 cr-apeal.650-2007.sxw2007 sent to the Forensic Science Laboratory for further investigation. Blood of the accused persons was likewise sent for further forensic investigation. On completion of the investigation, human blood of “A ” group was detected on full-sleeve T-shirt and underwear of the deceased. The forensic investigation further disclosed that the appellant-accused Ajay Mukharjee and co-accused Ravi Mukharjee had blood group belonging to “A ” group. Human blood was detected on the clothes of the accused. T-shirt of Ravi Mukharjee and full bushirt of the appellant-accused Ajay carried human blood group “A ”. However, the results regarding grouping of the blood detected on the other clothes of the accused were inconclusive . 7 Mr. Chaudhry, the learned counsel for the appellant-accused submitted that he had no quarrel over the evidence led by the prosecution on record, and even if it was to be accepted as it is, there would not have been conviction of the appellant-accused and two others for the crime of murder punishable under Section 302 read with Section 34 of IPC, 1860. This, he submitted could be demonstrated both from the oral testimony of the eye-witnesses and medical evidence concerning post-postmortem examination conducted over the body of the deceased Amar. He pointed out that it was a simple case of an assault by fist blows the result of which was evident in the external injuries noticed on the body of the deceased in 6 cr-apeal.650-2007.sxw2007 the course of post-postmortem examination conducted by PW-5 Dr. Vijay Tasgaonkar. He submitted that none of the injuries were of grievous nature and were sufficient in ordinary course to cause the death of the deceased Amar. In his view the appellant-accused Ajay at the most deserved conviction for the offence punishable under Section 323 of IPC, 1860. He relied upon the judgment in the case of State of Maharashtra Vs. Dinkar Balkrishna Palande reported in 2004 ALL MR (Cri) 2980, one on such similar issue. 8 PW-1 Smt. Suman More the complainant deposed that on being appraised of the assault on her son at Indiranagar pipeline by the persons of Khiladi Panwala, she went to the spot where she had noticed that accused persons were assaulting her son Amar and before she could reach them the accused Kamlesh had lifted her son and removed him from the spot in an auto rickshaw. She identified the clothes of the her son Amar. 9 A fact that the deceased Amar left home with the appellant- accused and two others namely Kamlesh Rewar and Ravi Mukjarjee some time before the incident also peeps through the evidence of PW-1 Smt. Suman More the mother of the deceased-Amar. Her cross examination has hardly earned any dividend for the defence on these 7 cr-apeal.650-2007.sxw2007 material aspects. Therefore, there is no reason to discard her testimony. 10 PW-2 Mahendranath Tiwari turned hostile to the prosecution. As a result his contribution to the prosecution case is of little consequence except fore coming to the conclusion that he had seen Kamlesh, Ajay and other persons consuming liquor near pipeline road. His evidence further reveals that he is the person who disclosed to PW-1 Smt. Suman More the mother of the deceased Amar about the involvement of her son in a quarrel. 11 The evidence of PW-3 Suvarna Matan sister of the deceased Amar reveals that she had witnessed deceased brother leaving home with the accused persons at 3.00 p.m. on 11.3.2006; and around 5.30 p.m. that day she left her home in search of her mother and happened to notice that her mother was crying and running towards Indiranagar and thereafter she had noticed the accused assaulting her brother Amar and carrying the deceased Amar in one auto-rickshaw. Nothing much turns in her cross examination. 12 PW-4- Mahesh Jadhav deposed that he had noticed quarrel between the deceased Amar and the accused assaulting Amar with fist blows and the deceased Amar falling down thereafter. According to him 8 cr-apeal.650-2007.sxw2007 he found that the deceased Amar did not respond to his action to lift him from the spot and therefore, he had stopped one auto-rickshaw in which the accused had carried deceased Amar to the hospital. He also referred to the presence of the mother of the deceased Amar at the material time. The cross examination PW-4- Mahesh Jadhav tends to suggest that there was quarrel between the deceased Amar and the accused Kamlesh and his friends over the consumption of liquor in Tadi centre, when he happened to be present with his friends at that place. A fact, however, remains that he had witnessed the incident as deposed to by him, and therefore, his testimony need not be brushed aside. His cross examination further reveals that the defence had made an effort to suggest that the deceased Amar fell down due to influence of Tadi and there was scuffle between them i.e. the accused persons on the one hand and the deceased Amar and the witness on the other hand. 13 Perusal of the evidence reveals that the key to the entire controversy lies in the medical evidence. PW-5 Dr. Vijay Tasgaonkar, Medical Officer attached to the Cooper Post-Mortem Centre deposed that in course of the post-mortem examination conducted over the body of the deceased Amar Umaji Asawale, he had noticed the following external injuries: i] Imprint abrasion there is injury on left knee anterior 3 cm 9 cr-apeal.650-2007.sxw2007 approximately. From each other, size 2 cm x 2cm & 2cm x 1cm red in colour well demarcated. ii] Imprint abrasion on left toe vertical and medial aspect two injuries apart 4 cm from each other redish coloured size 4 cm x 2 margining well demarcated. iii] Imprint abrasion on right knee contain two on medial and two on vertical, sizes 2 cm part from each other size medial 1) 2 cm x 2cm, 2)2cm x 1 cm, lateral 1) 2cm x 1.5 cm 2) 2 cm x 1.5 cm red coloured with demarked. ” 14 According to him the deceased Amar died due to the shock of assault, and internal injuries are possible due to assault by fist and kick blows. In his cross examination he dismissed the possibility of getting severe injuries in the event of person falling down on rough surface under the influence of liquor. He further reveals that he had not found symptoms of intoxication in the body of the deceased Amar. The result of the visceral examination vide CA report at Exh. 20 gives no indication of intoxication. Obviously, therefore, the injuries noticed on the body of the deceased Amar were result of the assault referred to in the oral testimonies of the eye-witnesses. However, PW-5 Dr. Vijay Tasgaonkar did not depose that the injuries noticed by him were sufficient in ordinary course to cause death of the deceased Amar. He merely stated that the death came as a result of shock due to assault. 10 cr-apeal.650-2007.sxw2007 15 Pertinently there is no reference to any internal injuries in the evidence of PW-5 Dr. Vijay Tasgaonkar and all injuries noticed by him were found located on the knees, toes, elbow and back of the deceased Amar and not on the vital parts of the deceased Amar. All injuries are abrasions which can be classified as simple injuries. From the oral testimony it can be gathered that the assault on the person of the deceased Amar was by fist and kick blows. There is no circumstance emerging from the evidence led by the prosecution to say that the assailants ever entertained any intention to do such bodily harm injuries as it likely to cause the death of the deceased Amar. On the other hand, there is evidence of the fact that the assailants were friends of the deceased Amar and they had tried to remove the deceased Amar to the hospital immediately after the incident. From the location of the injuries it can also be said that the assailants did not or could not have knowledge that they were likely to cause death by giving fist and kick blows on the knees, toes, elbow and the back of the deceased Amar. Evidently, therefore, the appellant-accused and his accomplices in crime cannot be held guilty of murder-an offence punishable under Section 302 of IPC 1860. At the most the culpability of the accused can be said to be punishable under Section 323 of IPC 1860 for voluntarily causing hurt to the deceased Amar. 11 cr-apeal.650-2007.sxw2007 16 As a last attempt to defend its stand, the prosecution invited our attention to the unexhibited histopathology report dated 15.5.2006. Even if this report is looked into, it would merely suggest that there was pulmonary hemorrhage with pulmonary oedema with hemorrhage in neck muscle and remaining organs viz. Liver, spleen, kidney, cerebrum, cerebellum pancreas, testis, heart were not revealing any evidence of specific pathologic disease process. Question as to why such hemorrhage should occurr is the question to which there is no answer in the medical evidence. 17 In the result Criminal Appeal No. 650 of 2007 preferred by the appellant-Ajay Mukharjee must succeed partly, and the success so obtained needs to be extended to all the co-accused namely Kamlesh Kushal Rewar the appellant in the Criminal Appeal No.365 of 2008, and accused Ravi Mukharjee who has not chosen to prefer any appeal against the impugned judgment and order. 18 The impugned order of convicting the accused-Ajay Mukharjee in Criminal Appeal No.650 of 2007, accused-Kamlesh Kushal Rewar the appellant in Criminal Appeal No.365 of 2008, and the accused-Ravi Mukharjee of the offences punishable under Section 302 read with Section 34 of IPC, 1860 is set aside, and all the accused stand convicted 12 cr-apeal.650-2007.sxw2007 of the offences punishable under Section 323 read with Section 34 of IPC, 1860 and are sentenced to undergo rigorous imprisonment for a term of one year. The accused have been in custody throughout the period from the date of their arrest on 11.3.2006. In the circumstances, they have suffered incarceration in the prison for the term exceeding the term of sentence, and therefore, they shall be released forthwith unless they are wanted in other criminal case. Fine amounts deposited, if any, shall be refunded. 19 Criminal Appeal No.650 of 2007 and Criminal Appeal No. 365 of 2010 along with the bail applications made therein stand disposed off. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.] 13 cr-apeal.650-2007.sxw2007