Full Judgment Text
2019:BHC-AS:10448
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.946 OF 2015
Mr. Ramesh Jayashram Pardeshi
Age : 20 years, Occ.: Tailoring
Residing at : Room of Munnabhai,
Jadav Vasti, Ghorpadi Village,
Dist. Pune .... Appellant
Vs.
The State of Maharashtra
(At the instance of Senior Inspector
of Police, Lashkar Police Station,
Pune .... Respondent
Ms. Devyani Kulkarni, appointed advocate for the Appellant
Mr. S.S. Pednekar, APP for the State.
Coram : Smt. Sadhana S. Jadhav , J.
th
Date : 27 March 2019
JUDGMENT :
1 Heard the respective counsel.
2 The appellant herein is convicted for the offence
punishable under Section 307 of Indian Penal Code and sentenced to
suffer rigorous imprisonment for six years and to pay a fine of
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Rs.3,000/, in default to undergo rigorous imprisonment for six
months by the learned Additional Sessions Judge, Pune vide
th
judgment and order dated 25 August 2015.
3 Such of the facts necessary for the decision of the appeal
are as follows :
The appellant herein happens to be a Tailor by
profession. He was working with Latif Tailors. The complainant
(injured) was also a Tailor and was working with Radhika Tailors.
The original accused no.2 (acquitted) was working with Dinanath
Tailors. All the three tailoring shops were situated at Clover Centre
Camp at Pune. It is the case of the prosecution that PW1 Mangesh
Ram Ajore Pardeshi was running a Bhishi scheme for the Tailors.
The monthly contribution amount was Rs.2,500/. The scheme had
become operative only from February 2010.
nd
4 On 22 April 2010, PW1, Mangesh Pardeshi had been
to Clover Centre at 9.00 am. as he had to give urgent delivery of
clothes. He had given Rs.12,500/ to the present appellant towards
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Bhishi amount. In all seven persons were members of the said Bhishi
scheme. On that day, Mangesh Pardeshi had demanded Rs.12,500/
from the appellant. There was verbal altercation between both of
them. According to the prosecution, the appellant and the acquitted
accused had been to the shop of Mangesh Pardeshi. That the present
appellant had drawn the scissor from the drawer of the shop of PW1
and inflicted injuries on his back and head. He was admitted to
Sasoon Hospital. His statement was recorded in Sasoon Hospital
and on the basis of the said statement, Crime No.67 of 2010 was
registered against the present appellant and the coaccused for the
offence punishable under Section 307 of Indian Penal Code. Upon
completion of investigation, the chargesheet was filed against the
th
accused on 20 July 2010. The case was committed to the Sessions
Court and registered as Sessions Case No. 545 of 2010.
5 The prosecution has examined 10 witnesses to bring
home the guilt of the accused.
6 The case rests on the evidence of PW1 Mangesh Ram
Ajore Pardeshi, the injured, PW3 Sudhir Chhaganrao Kirve and PW7
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Shabana Ibrahim Shaikh, who happens to be the eye witness to the
incident. The evidence of PW5, Dr. Archana Namdeo Shede and
PW10 Dr. Narayan Bhagwan Khare would also be relevant.
7 PW1 Mangesh Ram Ajore Pardeshi has deposed before
the Court in consonance with the first information report, which is
marked as Exhibit '32'. It is elicited in the crossexamination that for
each month, an amount of Rs.18,500/ was collected by PW1. In
the second month of the scheme, he had given the amount to the
accusedappellant as he had taken the contribution of the first month
i.e. February and March and had been given it to the accused
st th
appellant. The draw of bhishi was to be drawn from 1 to 10 day of
each month. According to the complainant, the appellant owed
Rs.12,500/ to the injuredcomplainant as they both had not
deposited the amount in the Bhishi scheme for the month of
February. According to the complainant, the appellant had not paid
the contribution for the months of March and April and probably that
was the bone of contention between the injured and the appellant. It
is elicited in the crossexamination that after the incident, he had
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handed over his clothes and scissor to the police. He has later
volunteered by stating that he did not know as to who had handed
over his clothes and scissor to the police. He has also admitted that
his physical constitution is better than that of the accusedappellant.
8 The injured was hospitalised for a period of 10 days. The
rd
injury certificate issued by Sasoon General Hospitals, Pune on 23
April 2010, which is at Exhibit 43 would indicate that the patient has
about 7 stab wounds on intrascapular region, out of which 2 are
deep, one is reaching to the pleura and 4 incised wounds on back
and occipital region. The patient had sustained left haemothorax.
The injury certificate is proved by PW5, Dr. Archana Shede, who
nd
had examined PW1 on 22 April 2010. According to PW5, except
injury no.1, all other injuries are simple in nature. It is elicited in the
crossexamination that if assault is done by opening the scissor, there
is possibility of two holes (incise wounds). In the injury certificate at
Exhibit 43, there is no injury, which would indicate that the injury
was inflicted by opening the scissor. PW5 has expressed her inability
to state as to how many assailants must have assaulted the injured.
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9 PW3, Sudhir Chhaganrao Kirve has posed as an eye
witness to the incident. According to him, he had seen the present
appellant assaulting Mangesh by scissor on his back. However, he
has elaborated that after sustaining injury Mangesh had started
running and had fallen down. It is admitted in the crossexamination
that in fact there was a scuffle between the injured, the appellant
and the coaccused and the said scuffle had taken place inside
Radhika shop. He has further elaborated that at the time of incident,
Mangesh fell down and then started running again and the persons
gathered had rushed towards Mangesh. He is not sure as to whether
Mangesh had assaulted Ramesh. Similarly PW7, Shabana Ibrahim
Shaikh was working in a tailoring shop i.e. Mischief and Latif was the
Master in the said shop. It appears that she was a coworker with
the coaccused Dinanath. According to her, she had initially heard
the noise of shouting and then she saw the present appellant beating
on the back and head of another person by scissor. She has admitted
that the present appellant was accompanied by Dinanath i.e. co
accused and he had also participated in assaulting Mangesh. It is
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pertinent to note that he has categorically stated that after the
incident, the accused had fled from the spot of incident. She has
denied to have seen any other person involved in the said scuffle.
10 The coaccused was granted benefit of doubt by the
Sessions Court despite the fact that the evidence would indicate that
the appellant and the coaccused had entered into the shop of the
complainant together. Moreover, the eye witnesses had stated that
soon after PW1 was assaulted on the back by the appellant, the
injured had started running from the place of offence. The possibility
that there was more than one person, who had assaulted the injured
cannot be ruled out. The recovery of scissor from Radhika Shop also
speaks volumes for itself. Since, there is no material to indicate that
after the incident the accused had immediately visited Radhika shop
to conceal the scissor. Also the fact that the scissor was recovered at
the instance of the injured cannot be ignored. Hence, the recovery of
the scissor under Section 27 of Indian Evidence Act after five days of
the arrest of the accused cannot be held to be an incriminating
circumstance against the accused.
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11. The records would indicate that the accusedappellant
had sustained contused lacerated wound on the right index on dorsal
aspect and the said injuries had to be sutured. The accusedappellant
was examined by PW10, Dr. Narayan Bhagwan Khare on the same
day at 11.25 pm. PW10 has proved the injury certificate, which is at
Exhibit 67. It is pertinent to note that the bleeding injuries sustained
by the accusedappellant are not reflected in the arrest panchanama
although the appellant was arrested within a few hours after the
incident. The arrest panchanama, which is at Exhibit 57 is silent
about the injuries on the person of the accused.
12 Learned counsel for the appellant submits that on the
basis of the evidence adduced by the prosecution, it is more than
clear that the accusedappellant had also sustained bleeding injuries,
which needed to be sutured. However, there is no explanation of the
injuries on the person of the accused. The complainant has not stated
that he had assaulted the present appellant. It is clear that the
accusedappellant and his associates had not entered shop of
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Radhika Tailors with an intention of assaulting the injured. Since
PW1 has categorically stated that the scissor with which he was
assaulted was taken from Radhika Tailors itself. Learned counsel for
the appellant submits that the possibility that the injured PW1 was
an aggressor cannot be ruled out.
13 Learned counsel for the appellant has submitted that the
very fact that the eye witnesses have contended that it was PW1,
who had caused injuries to the present appellant and therefore the
accusedappellant had a right of private defence. It is true that the
accused has stated in his statement under Section 313 Cr.P.C. that it
was the injured PW1 who had assaulted the appellant and the same
is corroborated by the injury certificate at Exhibit 60. Learned
counsel for the appellant has placed reliance on the judgment of
Hon'ble Supreme Court in the case of Moti Singh Vs. State of
Maharashtra, reported in Equivalent citations : JT 2002 (2) SC 133
and (2002) 9 SCC, 494. The Hon'ble Supreme Court has held in
paragraph 10 of the said judgment as under :
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“... If the evidence adduced by the prosecution
would indicate that the accused were put under a
situation where they could reasonably have
apprehended grievous hurt even to one of them, it
would be inequitable to deny the right of private
defence to the accused merely on the ground that
he has adopted a different plea during the trial. The
crucial factor is not what the accused pleaded, but
whether the accused had the cause to reasonably
apprehend such danger. A different plea adopted
by the accused would not foreclose the judicial
consideration on the existence of such a situation.”
14 Learned APP submits that in fact the evidence of PW1 is
sufficient to hold that the present appellant is the author of the
injuries sustained by the complainant i.e. PW1. The Court cannot be
oblivious of the fact that two persons were charged with an offence
punishable under Section 307 read with 34 of Indian Penal Code.
15 In view of above discussion and upon taking into
consideration the judgment of the Hon'ble Apex Court in the case of
Moti Singh (Supre), the appellant deserves to be acquitted by
extending him benefit of doubt.
16 It would be difficult to part with the judgment without
appreciating the efforts taken by learned counsel Ms. Devyani
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Kulkarni who was appointed to espouse the cause of the accused.
Hence, the following order :
O R D E R
(I) The appeal is allowed.
(II) The conviction of the appellant for the offence punishable
under Section 307 of Indian Penal Code vide judgment and order
th
dated 25 August 2015 is quashed and set aside.
(III) Fine amount if paid, be returned to the accusedappellant
as per rule.
(IV) The professional fees of Learned Counsel, Ms. Kulkarni is
quantified as per rules. The fees to be paid within three months
from today.
(Smt. Sadhana S. Jadhav, J)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.946 OF 2015
Mr. Ramesh Jayashram Pardeshi
Age : 20 years, Occ.: Tailoring
Residing at : Room of Munnabhai,
Jadav Vasti, Ghorpadi Village,
Dist. Pune .... Appellant
Vs.
The State of Maharashtra
(At the instance of Senior Inspector
of Police, Lashkar Police Station,
Pune .... Respondent
Ms. Devyani Kulkarni, appointed advocate for the Appellant
Mr. S.S. Pednekar, APP for the State.
Coram : Smt. Sadhana S. Jadhav , J.
th
Date : 27 March 2019
JUDGMENT :
1 Heard the respective counsel.
2 The appellant herein is convicted for the offence
punishable under Section 307 of Indian Penal Code and sentenced to
suffer rigorous imprisonment for six years and to pay a fine of
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Rs.3,000/, in default to undergo rigorous imprisonment for six
months by the learned Additional Sessions Judge, Pune vide
th
judgment and order dated 25 August 2015.
3 Such of the facts necessary for the decision of the appeal
are as follows :
The appellant herein happens to be a Tailor by
profession. He was working with Latif Tailors. The complainant
(injured) was also a Tailor and was working with Radhika Tailors.
The original accused no.2 (acquitted) was working with Dinanath
Tailors. All the three tailoring shops were situated at Clover Centre
Camp at Pune. It is the case of the prosecution that PW1 Mangesh
Ram Ajore Pardeshi was running a Bhishi scheme for the Tailors.
The monthly contribution amount was Rs.2,500/. The scheme had
become operative only from February 2010.
nd
4 On 22 April 2010, PW1, Mangesh Pardeshi had been
to Clover Centre at 9.00 am. as he had to give urgent delivery of
clothes. He had given Rs.12,500/ to the present appellant towards
::: Uploaded on - 05/04/2019 ::: Downloaded on - 01/04/2024 16:42:52 :::
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Bhishi amount. In all seven persons were members of the said Bhishi
scheme. On that day, Mangesh Pardeshi had demanded Rs.12,500/
from the appellant. There was verbal altercation between both of
them. According to the prosecution, the appellant and the acquitted
accused had been to the shop of Mangesh Pardeshi. That the present
appellant had drawn the scissor from the drawer of the shop of PW1
and inflicted injuries on his back and head. He was admitted to
Sasoon Hospital. His statement was recorded in Sasoon Hospital
and on the basis of the said statement, Crime No.67 of 2010 was
registered against the present appellant and the coaccused for the
offence punishable under Section 307 of Indian Penal Code. Upon
completion of investigation, the chargesheet was filed against the
th
accused on 20 July 2010. The case was committed to the Sessions
Court and registered as Sessions Case No. 545 of 2010.
5 The prosecution has examined 10 witnesses to bring
home the guilt of the accused.
6 The case rests on the evidence of PW1 Mangesh Ram
Ajore Pardeshi, the injured, PW3 Sudhir Chhaganrao Kirve and PW7
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Shabana Ibrahim Shaikh, who happens to be the eye witness to the
incident. The evidence of PW5, Dr. Archana Namdeo Shede and
PW10 Dr. Narayan Bhagwan Khare would also be relevant.
7 PW1 Mangesh Ram Ajore Pardeshi has deposed before
the Court in consonance with the first information report, which is
marked as Exhibit '32'. It is elicited in the crossexamination that for
each month, an amount of Rs.18,500/ was collected by PW1. In
the second month of the scheme, he had given the amount to the
accusedappellant as he had taken the contribution of the first month
i.e. February and March and had been given it to the accused
st th
appellant. The draw of bhishi was to be drawn from 1 to 10 day of
each month. According to the complainant, the appellant owed
Rs.12,500/ to the injuredcomplainant as they both had not
deposited the amount in the Bhishi scheme for the month of
February. According to the complainant, the appellant had not paid
the contribution for the months of March and April and probably that
was the bone of contention between the injured and the appellant. It
is elicited in the crossexamination that after the incident, he had
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handed over his clothes and scissor to the police. He has later
volunteered by stating that he did not know as to who had handed
over his clothes and scissor to the police. He has also admitted that
his physical constitution is better than that of the accusedappellant.
8 The injured was hospitalised for a period of 10 days. The
rd
injury certificate issued by Sasoon General Hospitals, Pune on 23
April 2010, which is at Exhibit 43 would indicate that the patient has
about 7 stab wounds on intrascapular region, out of which 2 are
deep, one is reaching to the pleura and 4 incised wounds on back
and occipital region. The patient had sustained left haemothorax.
The injury certificate is proved by PW5, Dr. Archana Shede, who
nd
had examined PW1 on 22 April 2010. According to PW5, except
injury no.1, all other injuries are simple in nature. It is elicited in the
crossexamination that if assault is done by opening the scissor, there
is possibility of two holes (incise wounds). In the injury certificate at
Exhibit 43, there is no injury, which would indicate that the injury
was inflicted by opening the scissor. PW5 has expressed her inability
to state as to how many assailants must have assaulted the injured.
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9 PW3, Sudhir Chhaganrao Kirve has posed as an eye
witness to the incident. According to him, he had seen the present
appellant assaulting Mangesh by scissor on his back. However, he
has elaborated that after sustaining injury Mangesh had started
running and had fallen down. It is admitted in the crossexamination
that in fact there was a scuffle between the injured, the appellant
and the coaccused and the said scuffle had taken place inside
Radhika shop. He has further elaborated that at the time of incident,
Mangesh fell down and then started running again and the persons
gathered had rushed towards Mangesh. He is not sure as to whether
Mangesh had assaulted Ramesh. Similarly PW7, Shabana Ibrahim
Shaikh was working in a tailoring shop i.e. Mischief and Latif was the
Master in the said shop. It appears that she was a coworker with
the coaccused Dinanath. According to her, she had initially heard
the noise of shouting and then she saw the present appellant beating
on the back and head of another person by scissor. She has admitted
that the present appellant was accompanied by Dinanath i.e. co
accused and he had also participated in assaulting Mangesh. It is
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pertinent to note that he has categorically stated that after the
incident, the accused had fled from the spot of incident. She has
denied to have seen any other person involved in the said scuffle.
10 The coaccused was granted benefit of doubt by the
Sessions Court despite the fact that the evidence would indicate that
the appellant and the coaccused had entered into the shop of the
complainant together. Moreover, the eye witnesses had stated that
soon after PW1 was assaulted on the back by the appellant, the
injured had started running from the place of offence. The possibility
that there was more than one person, who had assaulted the injured
cannot be ruled out. The recovery of scissor from Radhika Shop also
speaks volumes for itself. Since, there is no material to indicate that
after the incident the accused had immediately visited Radhika shop
to conceal the scissor. Also the fact that the scissor was recovered at
the instance of the injured cannot be ignored. Hence, the recovery of
the scissor under Section 27 of Indian Evidence Act after five days of
the arrest of the accused cannot be held to be an incriminating
circumstance against the accused.
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11. The records would indicate that the accusedappellant
had sustained contused lacerated wound on the right index on dorsal
aspect and the said injuries had to be sutured. The accusedappellant
was examined by PW10, Dr. Narayan Bhagwan Khare on the same
day at 11.25 pm. PW10 has proved the injury certificate, which is at
Exhibit 67. It is pertinent to note that the bleeding injuries sustained
by the accusedappellant are not reflected in the arrest panchanama
although the appellant was arrested within a few hours after the
incident. The arrest panchanama, which is at Exhibit 57 is silent
about the injuries on the person of the accused.
12 Learned counsel for the appellant submits that on the
basis of the evidence adduced by the prosecution, it is more than
clear that the accusedappellant had also sustained bleeding injuries,
which needed to be sutured. However, there is no explanation of the
injuries on the person of the accused. The complainant has not stated
that he had assaulted the present appellant. It is clear that the
accusedappellant and his associates had not entered shop of
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Radhika Tailors with an intention of assaulting the injured. Since
PW1 has categorically stated that the scissor with which he was
assaulted was taken from Radhika Tailors itself. Learned counsel for
the appellant submits that the possibility that the injured PW1 was
an aggressor cannot be ruled out.
13 Learned counsel for the appellant has submitted that the
very fact that the eye witnesses have contended that it was PW1,
who had caused injuries to the present appellant and therefore the
accusedappellant had a right of private defence. It is true that the
accused has stated in his statement under Section 313 Cr.P.C. that it
was the injured PW1 who had assaulted the appellant and the same
is corroborated by the injury certificate at Exhibit 60. Learned
counsel for the appellant has placed reliance on the judgment of
Hon'ble Supreme Court in the case of Moti Singh Vs. State of
Maharashtra, reported in Equivalent citations : JT 2002 (2) SC 133
and (2002) 9 SCC, 494. The Hon'ble Supreme Court has held in
paragraph 10 of the said judgment as under :
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Dusane 10/11 36 apeal 946.2015.doc
“... If the evidence adduced by the prosecution
would indicate that the accused were put under a
situation where they could reasonably have
apprehended grievous hurt even to one of them, it
would be inequitable to deny the right of private
defence to the accused merely on the ground that
he has adopted a different plea during the trial. The
crucial factor is not what the accused pleaded, but
whether the accused had the cause to reasonably
apprehend such danger. A different plea adopted
by the accused would not foreclose the judicial
consideration on the existence of such a situation.”
14 Learned APP submits that in fact the evidence of PW1 is
sufficient to hold that the present appellant is the author of the
injuries sustained by the complainant i.e. PW1. The Court cannot be
oblivious of the fact that two persons were charged with an offence
punishable under Section 307 read with 34 of Indian Penal Code.
15 In view of above discussion and upon taking into
consideration the judgment of the Hon'ble Apex Court in the case of
Moti Singh (Supre), the appellant deserves to be acquitted by
extending him benefit of doubt.
16 It would be difficult to part with the judgment without
appreciating the efforts taken by learned counsel Ms. Devyani
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Kulkarni who was appointed to espouse the cause of the accused.
Hence, the following order :
O R D E R
(I) The appeal is allowed.
(II) The conviction of the appellant for the offence punishable
under Section 307 of Indian Penal Code vide judgment and order
th
dated 25 August 2015 is quashed and set aside.
(III) Fine amount if paid, be returned to the accusedappellant
as per rule.
(IV) The professional fees of Learned Counsel, Ms. Kulkarni is
quantified as per rules. The fees to be paid within three months
from today.
(Smt. Sadhana S. Jadhav, J)
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