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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.53 of 2017
Pappu @ Chandikaprasad s/o Mohandatt Gaur,
Aged about 38 years,
Occupation - Business,
R/o C.P.W.D. Colony, Nagpur. ... Appellant
(In Jail)
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station Gittikhadan,
District Nagpur. ... Respondent
Shri R.M. Daga, Advocate for Appellant.
Smt. M.H. Deshmukh, Additional Public Prosecutor for
Respondent.
Coram : R.K. Deshpande & M.G. Giratkar, JJ.
Date of Reserving the Judgment : 30th October, 2017 Date of Pronouncing the Judgment: 2nd November, 2017 ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 2 apeal53.17.odt Judgment (Per R.K. Deshpande, J.) :
1. This appeal is by the accused against the judgment and order dated 30-12-2016 passed by the learned Additional Sessions Judge, Nagpur, in Sessions Trial No.510 of 2013, convicting him for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentencing to suffer imprisonment for life and to pay a fine of Rs.10,000/-, in default of which, to suffer rigorous imprisonment for six months.
2. The appellant-accused was charged that he committed the murder by intentionally or knowingly causing the death of Raman Suryodhan Mohade on 14-7-2013 at about 22.00 hours at C.P.W.D. Colony, Katol Road, Nagpur, by a Tile (Farshi) and has thereby committed an offence punishable under Section 302 of IPC.
3. The Sessions Court records the finding of homicidal death of deceased Raman. Relying upon the evidence of PW 1 Ashwin, considered to be an eye-witness, it is held that the ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 3 apeal53.17.odt accused committed murder by intentionally and knowingly causing death of Raman. The Sessions Court also relied upon the oral dying declaration given by the deceased, as expressed by PW 2 Vishal Mishra, his friend, and PW 3 Bhupesh Saradkar, who took the deceased from the spot of incident to Mayo Hospital in 'Santro' car of one Pankaj Maghade. The Sessions Court recorded the finding of conviction of the accused for the offence punishable under Section 302 of IPC.
4. Shri R.M. Daga, the learned counsel appearing for the accused, has urged that PW 1 Ashwin cannot be called as an eye-witness to the incident, for the reason that there are material omissions and contradictions in his deposition, the conduct of PW 1, according to him, is unnatural. In the absence of the identification parade, he submits that the Court could not have believed the identification by PW 1 of the accused in the Court. He submits that PW 1 is the friend of the deceased, and being an interested witness, his evidence is untrustworthy and unreliable. Shri Daga further urged that the theory of oral dying ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 4 apeal53.17.odt declaration, deposed by PW 2 Vishal, is unbelievable. He further submits that the evidence of PW 6 Shubham Telgote as a panch witness on the sealing of the clothes of the accused is not corroborated by any of the witnesses, including the Investigating Officer.
5. Smt. Deshmukh, the learned Additional Public Prosecutor, submits that the presence of PW 1 Ashwin on the spot is not challenged. According to this witness, the scuffle took place between the deceased and the accused, as a result of which, the deceased suffered several injuries. The injuries described in the post mortem report are the lacerated wounds and are possible by the Kadappa Stone (Tile) used in the crime. She submits that there is no evidence of involvement of any other person and the FIR and the statement of PW 1 Ashwin recorded by the police show that PW 1 was knowing the accused by his name and, therefore, no separate identification parade was required to be carried out.
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6. The finding of the Sessions Court on the question of homicidal death of deceased Raman is based upon the inquest panchanama at Exhibit 64, the post mortem report at Exhibit 104, proved by PW 8 Dr. Pankaj Ghodmare, the oral evidence of PW 1 Ashwin, the informant, PW 2 Vishal, and PW 3 Bhupesh along with the query report at Exhibit 105. The probable cause of death shown in the post mortem report is injuries No.1 to 10 in column No.17 read with the internal injuries in Column No.19 therein. There is no serious challenge raised to this finding recorded by the Sessions Court and we, therefore, confirm the same.
7. The oral evidence of PW 1 Ashwin, PW 2 Vishal and PW 3 Bhupesh has established that all of them along with other friends, viz. Pankaj Maghade and Roshan Kale, were sitting in Pension Nagar Square, Police Line Takli, Nagpur, between 9 and 9.30 p.m. on 14-7-2013. At that time, deceased Raman, who was present, asked PW 1 Ashwin to accompany him on the motorcycle at some place and accordingly both of them left the ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 6 apeal53.17.odt place. After some time, PW 1 Ashwin alone came back on the motorcycle of deceased Raman at Pension Nagar Square and narrrated the incident of quarrel between Pappu Pulser alias Chandikaprasad Gaur (the accused) and deceased Raman, in which the accused hit Raman, gave a blow of a Tile on his head and Raman was lying on the said spot. All of them, therefore, rushed to the spot of incident. Pankaj Maghade was asked to bring his car on the spot of incident and upon reaching the spot of incident, they found that Raman was lying in a pool of blood. At that time, he was alive. There is no cross-examination on these aspects of the matter and we do not find any fault with the findings recorded by the Sessions Court in accepting such evidence.
8. It has also come in evidence that PW 2 Vishal called one of his friends Nilesh Dube, a Police Constable, on his mobile and narrated him the incident and asked to reach the spot. Nilesh Dube also reached at the spot. PW 2 Vishal and Nilesh Dubey took deceased Raman on the motorcycle and proceeded towards ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 7 apeal53.17.odt Mayo Hospital. On the way at Katol Road Square, they met Pankaj Maghade, who brought his 'Santro' car. The deceased was taken in the said car to Mayo Hospital, Nagpur, where the doctor declare that he was brought dead. The oral evidence of PW 1 Ashwin, PW 2 Vishal and PW 3 Bhupesh is found to be consistent. In our view, non-seizure of motorcycle, 'Santro' car, and the clothes of PW 1, PW 2, PW 3 and of Pankaj Maghade in the facts and circumstances of this case was not fatal to the case of prosecution. We do not find any challenge nor any reason to disbelieve such evidence accepted by the Sessions Court. We, therefore, confirm such finding by the Sessions Court.
9. The conviction of the accused is based upon the oral evidence of PW 1 Ashwin and the prosecution has claimed him to be an eye-witness. In the examination-in-chief, this witness states as under :
"... Therefore, I along with Raman went to C.P.W.D. Colony, Katol Road, Nagpur by his motorcycle. We ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 8 apeal53.17.odt reached there at about 9.45 p.m. There we met the friend of Raman namely Chandikaprasad Gaur. Raman asked me to stay at some distance, therefore, I stayed at some distance from Raman and Chandikaprasad. Thereafter, on account of some prior dispute, the quarrel took place between Raman and Chandikaprasad. They beat each other. Raman fell on the ground. At that time I was at a distance of about 10 ft. from them. I requested Chandikaprasad not to beat Raman. I rushed towards Raman and Chandikaprasad, at that time Chandikaprasad lifted a piece of tile to beat Raman, but as I went near to them, Chandikaprasad came to me by holding that piece of tile. To save myself, I returned back to the place where motorcycle was standing. I sat on the motorcycle and by turning saw that Chandikaprasad beat Raman by that piece of title on his head. The distance between the motorcycle and the spot where Raman was beat was about 10 ft. Thereafter, by said motorcycle I came to Pension Nagar Square and met my friends Roshan ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 9 apeal53.17.odt Kale and told him that Chandikaprasad beat Raman. Thereafter, I along with Roshan Kale and other friends returned back to the spot of Incident. At that time we saw that Raman was lying in pool of blood. Thereafter, my friends Vishal Mishra and Nilesh Dube took Raman to the Mayo Hospital, Nagpur. There doctor declared him dead."
The presence of PW 1 Ashwin on the spot of incident at the crucial time, is not disputed. PW 1 Ashwin has clearly stated that he along with Raman went to C.P.W.D. Colony, Katol Road, Nagpur, on the motorcycle. Deceased Raman met with his friend Chandikaprasad Gaur and thereafter on account of some prior dispute, the quarrel took place between Raman and Chandikaprasad and they beat each other. Raman fell on the ground and PW 1 Ashwin saw this from the distance of about 10 ft. from them. Chandikaprasad lifted a piece of a Tile and gave its blow on the head of the deceased. There is no cross-examination on these material aspects deposed by PW 1. We, therefore, are of the clear view that the Sessions Court did ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 10 apeal53.17.odt not commit an error in resting the finding of guilt on the testimony of PW 1 Ashwin and we confirm the same.
10. No doubt, that PW 1 Ashwin did not mention in his report the statement made to the police that he reached the spot at 9.45 p.m. Shri Daga invited our attention to para 9 of the deposition of PW 1, which is reproduced below :
"9] While lodging report and giving statement before the Magistrate, I disclosed that at the time of incident, I was standing at a distance of 10 ft. from Raman and accused and thereafter, I went near to them. I also disclosed to police and Magistrate that accused by holding a piece of tile came to me and thereafter, I returned back to the place where motorcycle was standing and sat on the motorcycle and by turning saw the incident. I also disclosed to police and Magistrate that the distance between the motorcycle and spot of incident was about 10 ft. I also disclosed to police and Magistrate that thereafter, ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 11 apeal53.17.odt by said motorcycle I came to Pension Nagar Square. I also disclosed to police and Magistrate that the piece of tile was broken into five pieces. I also disclosed to police and Magistrate that at the time of incident, the accused had worn Barmuda (half pant) and T-shirt. It is true to say that in my report (Exh.50) and statement recorded by J.M.F.C. (Exh.52), all these above facts are not mentioned. I cannot assign any reason as to why all these facts are not mentioned in report and said statement."
It is urged by Shri Daga that the aforesaid omissions are proved by PW 7 Chandrahar Gode, the Investigating Officer, in his evidence. He has further invited our attention to certain contradictions in the deposition of this witness.
11. After going through the entire evidence of PW 1 Ashwin, we do not find that the omissions and contradictions are in respect of the material aspects of the matter. The presence of PW 1 on the spot at the time of incident is not disputed. The fact ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 12 apeal53.17.odt that the accused gave a blow of Tile (Kadappa Stone) on the head of the deceased, which preceded by a scuffle between the accused and the deceased, is not at all shattered in the cross-examination. Similarly, in the facts and circumstances, we do not agree with the contention of Shri Daga that non-examination of Nilesh Dube, Pankaj Maghade and Roshan Kale becomes fatal to the story of the prosecution. What we hold is that it is the quality of evidence and not the quantity, which is material to test the findings. We, therefore, do not find any reason to upset the findings of the Sessions Court in treating PW 1 Ashwin as an eye-witness to the incident in question.
12. PW 1 Ashwin has stated in para 8 of his cross-examination that he was knowing the accused by his name Chandikaprasad Gaur prior to the incident. Inviting our attention to further statement of this witness that "While lodging report, I stated to the police that I came to know that the name of accused is Chandikaprasad Gaur". Shri Daga has urged that in the absence of identification parade, the oral ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 13 apeal53.17.odt evidence of PW 1 could not have been believed by the Sessions Court. In the decision of the Apex Court in the case of Mulla & Anr. v. State of U.P., reported in AIR 2010 SC 942, cited by Shri Daga, it has been held that failure to hold the test identification parade does not render the evidence of identification in the Court inadmissible, though the conviction cannot be based upon it. The identification parade is for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. PW 1 has actually seen the accused on the spot and we do not find any reason to hold that in the absence of identification parade, the evidence of PW 1 to identify the accused persons should be rejected.
13. Shri Daga has urged that there was a delay in recording the statements of the witnesses, the incident occurred on 14-7-2013, and the statements of the witnesses were recorded by the police on 17-7-2013. PW 1 Ashwin states in para 2 of his examination-in-chief that he went to the Police Station ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 14 apeal53.17.odt Gittikhadan and lodged a report against the accused Chandikaprasad, which seems to be after the deceased was taken to Mayo Hospital by PW 2 Vishal and Nilesh Dube. Exhibit 50 is the written complaint by PW 1, and Exhibit 51 is the FIR registered at 22.10 hours on 14-7-2013 on the basis of the complaint of PW 1. In the cross-examination, PW 1 Ashwin states that the police came on the spot and took him to Mayo Hospital by their vehicle. While going to Mayo Hospital, he had narrated the incident to the police authorities, but it was not reduced into writing. PW 2 Vishal is not an eye-witness and his statement was recorded on 17-7-2013. PW 2 carried the deceased from the spot to Mayo Hospital, and in his cross-examination, he states that till 17-7-2013, he did not visit the Police Station. The police recorded the statement of PW 2 when he went to the Police Station. PW 3 Bhupesh is also not an eye-witness, but he has deposed the events which occurred. He was a panch witness on the seizure panchanama dated 15-7-2013 at Exhibit 57 in respect of the seizure of clothes of the deceased. We cannot entertain any doubt about the ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 15 apeal53.17.odt veracity of these witnesses on the ground of delay in recording their statements, which, according to us, does not become fatal to the story of the prosecution.
14. It is not in dispute that Exhibit 68, which is the report of Chemical Analyzer, read with Exhibit 44, which is a requisition, clearly established the blood stains of group 'A' on the stone (Tile/Kadappa Stone), which is the blood group of the deceased. The clothes of the accused seized are found to be stained with blood of group 'A'. There is no evidence of any injury on the person of the accused, though his blood is found to be of group 'A' in the Chemical Analyzer's report at Exhibit 70. There is no serious challenge to this evidence on record.
15. PW 6 Shubham Telgote states that the police had seized the clothes from the person of the accused in his presence on 15-7-2013 in Gittikhadan Police Station at about 6 p.m. The clothes of the accused were stained with blood and after seizure, the same were sealed. He identifies the clothes and the seizure ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 16 apeal53.17.odt panchanama at Exhibit 61. In his cross-examination, the witness states that the seizure itself is a sealing, and Shri Daga has urged that seizure and sealing are two different things, and in the absence of any corroboration of this evidence of PW 6, the Sessions Court committed an error in relying upon it. We are unable to accept such contention of Shri Daga for the reason that the conviction is based upon the evidence of eye-witness PW 1 Ashwin and the evidence in the form of Chemical Analyzer's report and of the panch witnesses remains corroborative. The Sessions Court, therefore, did not commit an error in accepting the evidence of seizure, deposed by PW 6 in respect of the clothes of the accused.
16. The theory of oral dying declarations deposed by PW 2 Vishal and PW 3 Bhupesh fails to inspire confidence. It is the contention that the dying declarations were given during the course of travel from the spot of incident to Mayo Hospital. There is nothing on record to show that PW 3 Bhupesh accompanied the deceased in 'Santro' car. It is not known ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 17 apeal53.17.odt whether the deceased was alive when he was lifted from the spot of incident. Upon reaching the Mayo Hospital, the doctor declared that he was brought in a dead condition. Except a bare word that the deceased was alive when he was picked up from the spot after the incident, there is nothing to believe that the deceased was mentally and physically fit to give such statement. We, therefore, do not agree with the findings recorded by the Sessions Court accepting the oral dying declarations, as deposed by PW 2 and PW 3.
17. Though we accept the findings recorded by the Sessions Court, it is not possible for us to sustain the conviction under Section 302 of IPC for the offence of culpable homicide amounting to murder. It is a case where the deceased himself went to the place of the accused, and we do not find any premeditation on the part of the accused in committing an offence. It was in a sudden fight in the heat of passion upon a sudden quarrel that the act of culpable homicide was committed, without the accused having taken undue advantage or acting in a ::: Uploaded on - 02/11/2017 ::: Downloaded on - 03/11/2017 02:07:26 ::: 18 apeal53.17.odt cruel or unusual manner. The case is, therefore, in our view, covered by Exception 4 to Section 300 of IPC in which case culpabable homicide is not a murder. The case would be covered by Part II of Section 304 of IPC where an act is found to have been done with the knowledge that it is likely to cause death, but without any intention to cause death. We will have to, therefore, set aside the conviction of the appellant-accused for the offence punishable under Section 302 of IPC, but we hold that the appellant-accused is convicted for the offence punishable under Part II of Section 304 of IPC. We accordingly pass an order as under :
: O R D E R :
(1) The appeal is partly allowed.
(2) The conviction of the appellant-accused for the
offence punishable under Section 302 of IPC is hereby quashed and set aside.
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apeal53.17.odt (3) The appellant-accused is convicted for the offence punishable under Part II of Section 304 of IPC and is sentenced to suffer rigorous imprisonment for a period of five years.
(4) The appellant-accused will be entitled to set-off in respect of the period of detention he has suffered. (5) The rest of the order passed by the Sessions Court is maintained.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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