Dismissed

The State of Maharashtra v. Shobhabai Laxman Pagore and Anr.

Bombay HC5 Dec 2018APPLN/4597/2016

Case brief

AI extract

What is this about?

The High Court dismissed an appeal for sentence enhancement and an application for leave to file a second appeal. It held that the five-year sentence was adequate based on medical evidence and refused leave for acquitted co-accused due to lack of corroborating evidence regarding their role.

What did the court decide?

Leaves to file appeal for acquitted accused refused; sentence enhancement appeal dismissed.

The State of Maharashtra Vs Shobhabai Laxman… — Murder and Culpable Homicide | Bombay HC (2018)

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(Judgment) (1) Cri. Appln. No. 04597 of 2016

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with Cri. Appeal No. 0846 of 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Application No. 04597 of 2016

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District : Aurangabad

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The State of Maharashtra,
through.. Applicant
Osmanpura Police Station, (Original
District : Aurangabad. complainant)

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versus

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1.Shobhabai w/o. Laxman Pagore,
Age : 55 years,
Occupation : Labour,
R/o. Kashmir Nagar,
Kanchanwadi, Aurangabad. .. Respondents
 (Original
2.Manoj s/o. Laxman Pagore, accused
Age : 30 years, nos.02 &
Occupation : Labour, 03)
R/o. Kashmir Nagar,
Kanchanwadi, Aurangabad.

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...........

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Ms. V.S. Choudhari, Additional Public Prosecutor, for the applicant.

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Mr. P.M. Gaikwad, Advocate, for respondent no.01.

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...........

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With

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(Judgment) (2) Cri. Appln. No. 04597 of 2016

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with Cri. Appeal No. 0846 of 2018

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Criminal Appeal No. 0846 of 2018

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District : Aurangabad

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The State of Maharashtra,
Through .. Appellant
Osmanpura Police Station, (Original
District : Aurangabad. complainant)

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versus
Rahul Laxman Pagore,
Age : 19 years,.. Respondent
Occupation : Education, (Original
R/o. Kashmir Nagar, accused
Kanchanwadi, Aurangabad. no.01)

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...........

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Ms. V.S. Choudhary, Additional Public Prosecutor, for the appellant.

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Mr. P.M. Gaikwad, Advocate, for the respondent.

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...........

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CORAM : T.V. NALAWADE &

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 SMT. VIBHA KANKANWADI,JJ.

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DATE : 05TH DECEMBER 2018

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JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :

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01.Present application as well as appeal are
arising out of the same judgment. Hence, taken up
together for hearing and final disposal.

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02.Criminal Appeal No. 846 of 2018 has been
filed by the prosecution against the respondent -
original accused no.01 for enhancement of sentence

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(Judgment) (3) Cri. Appln. No. 04597 of 2016 with Cri. Appeal No. 0846 of 2018

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imposed by the judgment and order passed by the
Additional Sessions Judge-4, Aurangabad, in Sessions
Case No. 0422 of 2009 on 11-05-2016. Criminal
Application No. 04597 of 2016 is also filed by the
prosecution seeking leave to file appeal against the
order of acquittal recorded by the said judgment and
order as against respondents therein - original
accused nos. 02 and 03 for offences punishable under
Section 307, 323, 504, 506, read with Section 34 of
the Indian Penal Code.

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03. All the three accused stood prosecuted for offences punishable under Section 307, 323, 504, 506, read with Section 34 of the Indian Penal Code. The prosecution case before the trial Court was that, the injured Shaikh Javed and all the accused persons are resident of the same vicinity. One Shafiya Begum is the relative of injured who resides in the neighbourhood. There is a raised platform ( Ota ) in front of house of Shafiya Begum. The boys in the vicinity used to sit on the said platform and used to play songs on their mobile in loud voice thereby causing nuisance to Shafiya Begum. Shafiya Begum asked the boys not to play songs. At that time, those boys had given abuses to her. On the day of the incident i.e. on 19-11-2008 at about 07.00 to 07.30 p.m., injured Shaikh Javed was proceeding towards his house from the road which was in front of house of Shafiya Begum. At that time, accused no.01,

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(Judgment) (4) Cri. Appln. No. 04597 of 2016

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with Cri. Appeal No. 0846 of 2018

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one Avinash More and Banti Salve were giving abuses
to Shafiya Begum. Shaikh Javed, therefore,
intervened and asked Shafiya Begum as to why those
persons are abusing her. She explained the
circumstances and specifically told that she had
asked accused no.01 not to play songs in loud voice
in his mobile. She had also told that those persons
were knocking the door of her house. Thereupon,
Shaikh Javed asked accused no.01 as to why he is
abusing Shafiya Begum. Thereafter, accused no.01
abused injured in filthy language. Thereupon, Shaikh
Javed gave a slap on the face of accused no.01.
Thereafter, there was hot exchange of words between
Shaikh Javed and accused no.01. Accused no.01
started beating him and in the meantime, he also went
to his house and brought some sharp edged weapon like
knife. He thereafter stabbed Shaikh Javed in his
stomach and back. At that time, accused Bunty Salve
and Avinash More caught hold hands of Shaikh Javed.
In the meantime, family members of accused no.01 also
came i.e. accused nos.02 and 03. They had also
caught hold hands of Shaikh Javed. As a result of
assault by accused no.01, Shaikh Javed sustained
bleeding injuries to his stomach and back. His
maternal aunt and father took him to Government
Hospital. On the next day, he had narratd the
incident to his father and thereafter his father had
lodged report vide C.R. No. 277 of 2008.

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(Judgment) (5) Cri. Appln. No. 04597 of 2016 with Cri. Appeal No. 0846 of 2018

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04.The investigation was carried out. Report
under Section 169 of the Code of Criminal Procedure
was filed against Avinash More and Bunty Salve and,
therefore, charge-sheet came to be filed only against
accused nos.01 to 03.

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05.After committal of the case, all accused
persons appeared before learned Additional Sessions
Judge-4, Aurangabad. Trial was conducted after they
pleaded not guilty. At the conclusion of the trial,
statements of the accused persons under Section 313
of the Cr.P.C. were recorded. After hearing
arguments, learned trial Court has convicted accused
no.01 for offence punishable under Section 307 of the
IPC and sentenced him to undergo rigorous
imprisonment for five years and to pay fine of Rs.
1000/-, in default of payment of fine, to undergo
further rigorous imprisonment for three months.
Accused no.01 has been acquitted of the offences
punishable under Section 323,504, 506, read with
Section 34 of the Indian Penal Code. Accused nos.02
and 03 have been acquitted of all the charges
levelled against them i.e. Section 307, 323, 504,
506, read with Sectioin 34 of the IPC. Hence, the
State has filed present appeal for enhancement of
sentence imposed on accused no.01 as well as
application seeking leave to file appeal against the
order of acquittal in respect of accused nos.02 and
03.

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(Judgment) (6) Cri. Appln. No. 04597 of 2016 with Cri. Appeal No. 0846 of 2018

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06.Heard learned Additional Public Prosecutor
Ms. V.S. Choudhary appearing for the appellant /
applicant. So also, heard learned Advocate Mr. P.M.
Gaikwad appearing for respondent - original accused
no.02. Both of them have argued in support of their
respective contentions.

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07.The testimony of PW 01 Shaikh Javed would
show that his examination in chief is as per the
prosecution story. He has stated that accused no.01
was abusing him after he made enquiry as to why
accused no.01 was giving abuses to Shafiya Begum. In
the meantime, accused no.01 had ran from the spot to
his house and brought the weapon from his house.
That weapon was like knife. According to him, family
members of accused no.01 also came there and they had
assaulted him. Bunti Salve and Avinash More had
caught hold his hands. Accused no.02 had also caught
hold his hands and then accused no.01 had again
stabbed him with knife on his back. Thus, it is to
be noted that, he intended to say that accused no.01
without taking any help from other accused or in any
manner, involvement of other accused, had given a
blow in the stomach of Shaikh Javed, as per his
examination in chief and the second blow to his back
is stated to have been given after Shaikh Javed was
caught hold by other accused persons. As regards
Bunti Salve and Avinash More are concerned, police

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(Judgment) (7) Cri. Appln. No. 04597 of 2016 with Cri. Appeal No. 0846 of 2018

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had already filed report under Section 169 of the
Cr.P.C. and, therefore, we are not required to take
into consideration statement by the injured involving
these two persons. As regards accused no.03 is
concerned, testimony of PW 01 Shaikh Javed is very
much silent. No role has been attributed by him to
accused no.02. Only omnibus statement has been made
as regards accused no.02 is concerned. It is stated
that she had caught hold his hands. In fact, at one
place, he says that he was caught hold by Bunti Salve
and Avinash More. Then what was the reason for
accused no.02 to caught hold of Shaikh Javed. This
appears to be the improbability just to implicate.
Further, no other overt act is attributed to her. It
is also hard to believe that she would have any
knowledge as to what was going on between Shafiya
Begum, accused no.01 and Shaikh Javed, in front of
Shafiya Begum's house. Her presence is shown after
accused no.01 allegedly brought knife from his house.
It is also further not possible that while bringing
knife, accused no.01 would have told his mother as to
what purpose he is taking the knife with him and ask
her to accompany him. Under this circumstance,
testimony of injured witness himself is not
convincing as regards involvement of accused nos.02
and 03 are concerned.

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08.PW 02 Farzana Begum is stated to be an eye
witness. She has stated that accused nos.02 and 03

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(Judgment) (8) Cri. Appln. No. 04597 of 2016 with Cri. Appeal No. 0846 of 2018

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had caught hold of Shaikh Javed. When PW 01 Shaikh
Javed is silent about the act allegedly done by
accused no.03, statement of PW 02 Farzana Begum
involving accused no.03 cannot be taken into
consideration. Her testimony is also silent as
regards presence of accused no.02 since beginning at
the spot. Common intention, even if for the sake of
arguments, can appear at a spur of moment, but here
in this case, circumstances have not been shown that
there would have been a common intention of accused
no.01 on one part and accused nos.02 and 03 on the
other part. Therefore, taking into consideration
such type of evidence, no case is made out to grant
permission to file appeal as against accused nos.02
and 03.

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09. Accused no.01 has been convicted for the offence punishable under Section 307 of the IPC and has been sentenced to undergo rigorous imprisonment for five years. The weapon that is used and evidence that has been produced on record in the form of memorandum panchanama under Section 27 of the Indian Evidence Act, show that accused no.01 had discovered knife. The injury certificate which is on record at Exhibit 51 would show that immediately after Shaikh Javed was admitted to hospital, two injuries were noted, one was incised wound (stab injury) on the right side of abdomen which is stated to be simple. The second injury is CLW over back and it is also

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(Judgment) (9) Cri. Appln. No. 04597 of 2016 with Cri. Appeal No. 0846 of 2018

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stated to be simple. There was no stab injury to his
back. Therefore, taking into consideration the said
medical evidence and the weapon used, sentence of
five years can be said to be adequate and no case is
made out for enhancement of sentence imposed by the
trial Court upon respondent - original accused no.01.
Therefore, both application as well as appeal are
required to be dismissed.

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10.Hence, the following order :-

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(a)Criminal Application No. 4597 of 2016 is hereby
dismissed. Consequently, leave to file appeal
against the order of acquittal in respect of
respondents - original accused nos.02 and 03 stands
refused.

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(b)Criminal Appeal No. 0846 of 2018 for enhancement
of sentence is also hereby dismissed.

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(c)Criminal Appeal No. 0335 of 2016 pertains to the
Bench of learned Single Judge and, therefore, same be
placed before appropriate Bench.

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...........

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puranik / CRIAPPLN4597.16etc

The State of Maharashtra v. Shobhabai Laxman Pagore and Anr.

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Shobhabai Laxman Pagore and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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