Partly allowed

Balasaheb Ganpati Chavan and Ors. v. the State of Maharashtra

Bombay HC27 Apr 2011APEAL/427/1995

Case brief

AI extract

What is this about?

The Court addressed an appeal against convictions for attempt to murder involving four appellants. It acquitted two appellants due to doubtful evidence but upheld convictions for the other two, reducing their sentences on grounds of delayed trial.

What did the court decide?

Convictions of appellants 1 and 2 maintained but sentence reduced to three years; appellants 3 and 4 acquitted.

Balasaheb Ganpati Chavan and Ors. Vs the State… — Murder and Culpable Homicide | Bombay HC (2011)

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Cri.Appeal 427-1995

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPEAL NO.427 OF 1995

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1. Balasaheb Ganpati Chavan..Appellants
 Age : 27 yrs, Occu : Goldsmith

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2. Dinesh Paterao Kudalkar Age : 25 yrs, Occu : Goldsmith

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3. Nishikant Ganpati Kudalkar Age : 26 yrs, Occu : Agriculturist

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4. Shahajahan Dastigir Chaugule
 Age : 24 yrs, Occu : Agriculturist

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 All are residents of Pathankadoli,
 Taluka Hatkanangale, District Kolhapur.

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 V/s.

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 The State of Maharashtra..Respondent

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Mr.S.V.MarwadiwithMr.V.V.Kattii/b.

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Mr.A.P.Mundargi, Senior Counsel, for the
Appellants

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Mr.Y.M.Nakhawa, APP, for the Respondent -
State

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CORAM:R.C.CHAVAN, J.
DATE:27TH APRIL, 2011

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ORAL JUDGMENT

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.This Appeal is directed against

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appellants' conviction for the offence

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punishable under Section 307 read with Section

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2 Cri.Appeal 427-1995

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34 of the Indian Penal Code by the learned
Additional Sessions Judge, Kolhapur upon

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conclusion of Sessions Case No.13 of 1993
before him.

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2.Facts which are material for deciding
this Appeal are as under :-

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Appellant No.1 Balasaheb lost his

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brother prior to the incident. The first

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informant Namdev is an accused in the case of
murder of Shivaji, brother of Balasaheb. On
25th September, 1992 when Namdev had gone to

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betel leaf shop near S.T.Stand, Pattankodoli,
the appellants are alleged to have assaulted

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him. Appellant No.1 Balasaheb gave blows by

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Sword, Appellant No.2 Dinesh gave blows by

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Gupti, Appellant No.3 Nishikant held the

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victim while Appellant No.4 Shahajahan gave a

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blow by iron rod. The victim tried to run

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away but was given a chase by the appellants.

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The victim ultimately reached a temple and
from there was taken by one Sunil Jadhav to

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3 Cri.Appeal 427-1995

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his house, from where he was taken to a
hospital at Kolhapur. Police were called and
on taking the report of the victim an offence
was registered.

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3.In course of investigation, police

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arrested the first three appellants on the

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very next day. The appellant Shahajahan was
also arrested soon thereafter. Police

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performed panchanama of the spot, recorded
statements of witnesses, seized incriminating
articles, including a Sword recovered at the
instance of appellant Balasaheb, and sent the
incriminating articles to the Forensic Science
Laboratory. On completion of investigation,
charge sheet was sent to the Court of JMFC,
Ichalkaranji, District Kolhapur, who

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committed the case to the Court of Sessions at
Kolhapur.

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4.The learned Additional Sessions Judge

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to whom the case was made over, charged the

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4 Cri.Appeal 427-1995

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Appellants of the offence punishable under
Section 307 of the Indian Penal Code. The

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Appellants pleaded not guilty and hence, were
put on trial at which the prosecution examined

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in all 18 witnesses in its attempt to bring
home guilt of the appellants. After

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considering the prosecution evidence in the
light of defence of denial and false
implications, the learned Additional Sessions

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Judge held all the four Appellants guilty for
the offence punishable under Section 307 read
with Section 34 of the Indian Penal Code and
sentenced them to suffer rigorous imprisonment
for five years each. Aggrieved thereby, the
appellants are before this Court.

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5.I have heard the learned Counsel for

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the Appellants as well as the learned APP for
the Respondent � State. With the help of both
the learned Counsel I have gone through the
evidence on record. The victim himself has
been examined as P.W.1 Namdev Banda Koli.

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5 Cri.Appeal 427-1995

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P.W.2 Appasaheb Sakharam Kirtikar, P.W.3 Vijay
Vasant Kelkar and P.W.8 Popat Devgonda More
are reluctant eye witnesses, who state about
the Appellants giving a chase to the victim
but do not state about the actual assault.
P.W.6 Kisan Annu Sutar is an eye witness to
the assault. He stated that the Appellants
gave a chase to the victim and then assaulted
the victim. The victim then ran away towards

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West to Biroba temple. P.W.4 Rajendra Shankar
Arekar and P.W.5 Deepak Dattatraya Madhale are
panchas on seizure and other panchanamas
performed in the course of investigation.
Dr.Ajit Bhalchandra Joshi, who examined the
victim has been examined as P.W.7. P.W.9 to
P.W.12 are ASI Khallappa Satyappa Chougule,
Head Constable Abdul Rahman Ibrahim Gadkari,
Police Constable Ramchandra Bhau Patil and
Police Constable Nandkumar Appaso Ghodke local
officers, who participated in various stages
of investigation from recording the report
till filing of charge sheet.

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6 Cri.Appeal 427-1995

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6.The learned Counsel for the appellants

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first submitted that victim Namdev, who was
examined as P.W.1, had admitted in his cross
examination that he had been prosecuted in the

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past for an offence punishable under Section
304A of the Indian Penal Code and had also
received notice for externment. Therefore,
according to the learned Counsel, the victim
could have several other enemies and since,

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vicitim stated in the FIR that he had received

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a blow on his head by �someone�, without
naming Balasaheb, implication of the appellant

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in the assault is an after thought and
therefore, should not have been relied on by
the learned Trial Judge. As rightly pointed
out by the learned APP, since the assault was
launched from the back side of the victim, the

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reference to �someone�, appears in the first
sentence of the narrative of assault. When he
received the first blow obviously the victim
did not know who gave that blow. But this
does not mean that his attribution of

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7 Cri.Appeal 427-1995

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authorship of that blow to the appellant
Balasaheb is an afterthought since the events
which immediately followed was wrong were
enough for the victim to infer that Balasaheb

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was the author of the first blow. It is only

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natural for a person to fail to notice as to
who is the person giving blow from the back
side, but once the blow is given and the
assaultcontinues,thepersonwould

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undoubtedly notice as to who was the author of
the injuries. In this case, Namdev has stated
about further blows by the appellants and
therefore, it cannot be said that Namdev has
subsequently developed story involving the
appellants on the assault made by some unknown
persons.

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7.Though P.W.2 Appasaheb Sakharam

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Kirtikar, P.W.3 Vijay Vasant Kelkar and P.W.8

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Popat Devgonda More are reluctant eye
witnesses and stated only about the victim
being given a chase, they have unmistakenly

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Cri.Appeal 427-1995

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pointed to the participation of the appellants
in a chase, armed with weapons, and therefore,

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there is no reason why the word of P.W.1
Namdev Banda Koli corroborated by these
witnesses, should not be believed, as the
learned Trial Judge has rightly done. The

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learned Counsel for the appellants submitted
that these witnesses should not be believed
because the possibility of their actually

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having their seen the chase or assault has
been ruled out from the cross examination of
these witnesses, showing their positions in
their shops from where the assault or the
chase could not have been seen. Now,

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ordinarily when an assault taken place in a
place like the one at which Namdev was
assaulted, in a market near S.T.Stand, persons
present there would not continue with their
ordinary business even on noticing that an
assault has taken place and would at least
take the trouble of looking at what has
happened. Therefore, there is no reason to

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9 Cri.Appeal 427-1995

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reject testimonies of these witnesses insofar
as they provided corroboration to the evidence
of Namdev Banda Koli.

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8.P.W.1 Namdev had stated that he had

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received a blow with the Sword on the back
side of his head and thereafter, he started
running towards the garage of Abbas Mistry

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when the Appellants chased him. He then

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states that the Appellant Balasaheb gave two
blows with the Sword on his left arm when he
caught blade of the Sword in his left hand to
prevent Balasaheb from giving further blows.

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He states that the Appellant Dinesh was armed

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with Gupti gave a blow on the right side of
his abdomen near waist. Appellant Nishikant

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was not armed with any weapon and he is stated

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to have merely held the victim near garage.

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The Appellant Shahajahan is alleged to have

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given blows with iron bar on the back of the
victim. This account of the injuries received
by Namdev would have to be examined with

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10 Cri.Appeal 427-1995

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reference to the evidence of P.W.7 Dr.Ajit
Bhalchandra Joshi, who examined the victim.
Dr. Joshi stated that on 25th September, 1992
at 10:10 p.m. he examined Namdev and found

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that Namdev had as many as nine injuries which
have been described as under :-

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�(i)CLW (contused lacerated wound) left
parietal region 5 x 1 cms fresh bleeding
present.

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(ii)CLW (contused lacerated wound) 2 cm
left lateral and downwards to injury No.1 in
size 3 x 1 cm bone deep.

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(iii)Contused lacerated wound 2 cm below
and downward to injury No.2 size 4 x 1 cm also
bone deep.

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(iv)Contused lacerated wound on occipital
bone left side oblique size 5 x 1 cm bone
deep.

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(v)Stab wound left lower 1/3rd of arm
tearing anteriorly size 3 x 1 cm in centre,
with clean cut edges. Fracture of lower 1/3rd
of humerous bone.

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(vi)Stab wound above left elbow joint bone
deep. Size 4 x 5 x 2 cms in centre.

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(vii)Incised would left wrist joint going
obliquely and anteriorly size 4 x 1 cms skin
deep.

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(viii)Incised wound on base of left middle
extending upto middle phalan of the left
ring/finger 5 x 3 cms.

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11 Cri.Appeal 427-1995

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(ix)Incised perforating wound right lumbar
region 4 cms above right illiac crest placed
horizontally size 3 x 1 cms query depth. No
apparent internal injuries

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Injury Nos.1 to 4 were simple. Injury Nos.5
to 9 were grievous in nature. Age of the
injuries within 4 hours.�

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9.Dr. Joshi had brought the case papers

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as well X ray plates with him at the trial.

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He observed that injury No.9 was sufficient in

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the ordinary course of nature to cause death

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of the victim and injury Nos.1 to 9 were
also cumulatively sufficient to cause death,
if not treated within time. He stated injury
Nos.1 to 4 could be caused by an iron bar.
Injury Nos.5 to 8 could be caused by Sword.
Injury Nos.1 to 4 could be caused by blunt
side of the Sword or by its handle. Injury
Nos.7 and 8 were defence injuries that is
injuries caused in course of victim holding
the Sword and injury No.9 could have been
caused can be caused by a Gupti or a Knife
having both the edges sharp. He further
stated that Namdev was given treatment and was
shifted to operation theatre. The surgery

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12 Cri.Appeal 427-1995

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performed did not reveal any internal injury
on account of stab wound, injury No.9.

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10.In his cross examination Dr.Joshi has

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revised his opinion and stated injury Nos.6, 7
and 8 were also simple in nature and had been
wrongly certified them to be grievous in the
Medical Certificate.

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11.As already re-counted appellant

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Nishikant was not armed with any weapon. He
is alleged to have only held the victim as the
victim was being given blows by other persons.

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This, according to prosecution, had occured
after victim had received blows by Sword on
his head and left arm. The injuries caused on
both these parts of the body were bleeding.
Therefore, ordinarily, if appellant Nishikant
had held the victim when further blows were

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being administered, the clothes of Nishikant

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would bear some blood stains. The panchanama

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of arrest of Balasaheb, Dinesh and Nishikant

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13 Cri.Appeal 427-1995

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which is at Exhibit 17 shows that there were
no blood stains or any other marks of injuries
on the clothes of Nishikant, creating a doubt
whether Nishikant had at all participated in
the assault.

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12.P.W.1 Namdev had admitted towards the

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end of his cross examination that the

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appellants are the Complainant and witnesses

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in the murder of Balasaheb's brother. The
learned Counsel for the appellants, therefore,
submitted that the possibility of Namdev

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falsely implicating Nishikant because he was a
witness against Namdev in the murder case
cannot be ruled out. Considering the fact
that Namdev had not attributed any role
except pinning down to Nishikant, as also the

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fact that Nishikant could not have held
Namdev without staining his clothes with
Namdev's blood, the learned Trial Judge should
have seen that participation of Nishikant in
the assault on Namdev was doubtful and

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14 Cri.Appeal 427-1995

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therefore, should not have held Nishikant
guilty of the offence punishable under Section
307 of the Indian Penal Code.

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13.As far as appellant Shahajahan is
concerned, P.W.1 had stated that Shahajahan

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had given blows by iron rod on Namdev's back
but the evidence of Dr.Joshi which has been
discussed above, does not show any injuries on

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the back. Since Namdev did not attribute any
otherinjuriestoShahajahan,his

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participation in the assault has also become
doubtful. And, in the context of the fact

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even Shahajahan was, according to Namdev, a

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witness against Namdev in the case of murder
of Balasaheb's brother, Namdev having included

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Shahajahan also in the story of assault
developed by him cannot be ruled out. The

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learned Trial Judge should, therefore, have
seen that the evidence against Shahajahan was
also unreliable and should have acquitted
Shahajahan of the offence charged.

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15 Cri.Appeal 427-1995

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14.The learned Counsel for the appellants
submitted that if the story of Namdev is thus
found to be exaggerated and unreliable in
respect of details of assault given by him in
respect of two of the four appellants, it
would not be proper to accept that story as
regards assault by appellants Balasaheb and
Dinesh. This contention has to be rejected,
since falsus in uno falsus in omnibus has been
time and again held in applicable in India
given the tendency to exaggerate include
persons who are actually not involved.
Therefore, because the appellants Shahajahan
and Nishikant could not have been held guilty
of the offence charged, it does not imply that
the appellants Balasaheb and Dinesh also
should be acquitted. Their complicity would
have to be examined with reference to the
evidence tendered independently.

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15.Namdev had stated that Balasaheb gave

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a blow by Sword on the backside of his head.

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16 Cri.Appeal 427-1995

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According to Dr.Joshi, there were three
contused lacerated wounds one below other on

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the parietal region. There is also an injury
on the occipital bone which is described as

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injury No.4. This could have been caused by
the blow on the backside. Therefore,
authorship of injury No.4 can be safely
attributed to appellant Balasaheb. Namdev

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had then stated that Balasaheb gave two blows

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by Sword which correspond to injury Nos.5 and
6 observed by Dr.Joshi. It may be re-called
that injury Nos.7 and 8 according to Dr.Joshi,

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were defensive wounds when Namdev caught the

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blade of the Sword to prevent further

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injuries. Dr.Joshi had observed that injury
Nos.1 to 4 could be caused even by blunt side
of the Sword. Injury No.4 is contused

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lacerated wound on occipital bone. The

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learned Counsel for the appellants submitted
that if the appellant harboured an intention

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to cause death of the victim, while assaulting

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victim by Sword on the back side of head,

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17 Cri.Appeal 427-1995

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appellant Balasaheb could have as well used
sharp edge of the Sword and could have caused

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more serious injury. The learned Counsel
further submitted that from the fact that

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blunt side of the Sword or handle of the Sword
was used hit the back side of Namdev's head

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would rule out any intention to cause death of
Namdev as a result of the injuries inflicted.
As rightly submitted by the learned APP, this

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could have been an accident in appellant's
using the wrong side of the Sword, than one
which he intended to use and therefore, cannot

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result in holding that the appellant lacked
requisite intention or knowledge. He pointed
out that the next injury on the left arm is by
the sharp edge of the Sword. He submitted
that the fact that the blows inflicted on the
left arm need not have been with the intention
to cause an injury on the left arm. The blow
could have landed anywhere, and since the
victim was not a still target the blow landed
on left arm. Therefore, the learned APP

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18 Cri.Appeal 427-1995

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rightly submitted that the fact that Balasaheb
assaulted Namdev with Sword and gave as many
as three blows would be indicative of the
intention to cause death of Namdev.

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16.The learned Counsel for the appellants
submitted P.W.7 Dr.Joshi does not state that
any of the injuries which could be attributed
to Balasaheb were sufficient in ordinary
course of nature to cause death. He stated
that injury No.9 which was not caused by
Balasaheb, was stated to be sufficient in
ordinary course of nature to cause death.
This has been attributed to appellant Dinesh
and there is no reason to disbelieve that
Dinesh caused the injury. Therefore,
according to the learned Counsel for the
appellants, appellant Balasaheb could not be
attributed with the necessary intention or
knowledge. This argument has also to be
rejected. It is not material as to what is
the result of the assault. What is material

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19 Cri.Appeal 427-1995

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is the manner of assault and since, in this
case, assault by Sword itself is indicative of
intention of assault, appellant Balasaheb
cannot escape from the conviction for the
offence punishable under Section 307 of the
Indian Penal Code.

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17.This takes me to the question of

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complicity of appellant Dinesh. Namdev stated

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that Dinesh gave a blow on the right side of
his abdomen near the waist. This corresponds

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to injury No.9 observed by P.W.7 Dr.Joshi
which was an incised perforating wound which

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upon surgery was found to have not caused any
internal damage. The learned Counsel for the
appellants, therefore, submitted that since
this injury was cavity deep, causing that
injury would at worst attract provisions of
Section 324 and not 307 of the Indian Penal
Code. Again as submitted by the learned APP,
not the result, but the manner of assault

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would be decisive of intention and therefore,

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Cri.Appeal 427-1995

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incised perforating wound on the right lumbar
region which was cavity deep would be
sufficient to attribute to appellant Dinesh
the requisite intention and knowledge.

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18.In view of this, conviction of the

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appellants Balasaheb and Dinesh for the
offence punishable under Section 307 of the
Indian Penal Code cannot at all be faulted.

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19.The learned Counsel for the appellants
submitted that the incident occured 19 years

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ago in the year 1992. The appellants were
convicted in the year 1995 and have been
living in the shadow of conviction for all
these years. They have been in jail for all
67 days that is more than two months and
therefore, submitted that they may not be
asked to re-visit the jail and sentences may

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be reduced to those undergone by increasing

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suitable fine suitably. Considering the
nature of assault, it would not be

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21 Cri.Appeal 427-1995

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appropriate to reduce sentence of the
appellants to sentence of imprisonment only
two months which they have undergone. But
considering the fact that the conviction is
recorded about 16 years ago, sentence of
imprisonment could be reduced to rigorous
imprisonment for three years.

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20.In view of this, Appeal is partly
allowed. Conviction of appellant Nos.1
Balasaheb and 2 Dinesh for the offence
punishable under Section 307 of the Indian

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Penal Code is maintained but the sentence is

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reduced to rigorous imprisonment for three
years. Conviction of appellant Nos.3

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Nishikant and 4 Shahajahan for the offence
punishable under Section 307 of the Indian

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Penal Code is set aside and they are acquitted
of the said offence.

Balasaheb Ganpati Chavan and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Balasaheb Ganpati Chavan and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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