Bombay High Court
Gagandeep Singh vs The State Of Maharashtra on 23 October, 2013
Bench: K.U. Chandiwal, A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.383 OF 2011
Gagandeep Singh s/o Lakhbindar Singh Randhwa,
Age-21 years, Occu: Pvt. Service,
R/o-Deelipsingh Colony, Vazirabad,
Nanded, Tq. & Dist-Nanded.
...APPELLANT
VERSUS
1) The State of Maharashtra, Through
Bhagya Nagar Police Station, Nanded,
2) Purbhaji Narsingrao Kelkar,
Age-65 years,
3) Saw. Shantabai Purbhaji Kelkar,
Age-60 years,
4) Milind Purbhaji Kelkar,
Age-30 years,
All R/o-Labour Colony, Nanded,
At present Badlapur, Mumbai,
5) Jayshri Purbhaji Kelkar,
Age-40 years,
R/o-Dhanegaon, Dist-Nanded,
6) Sunita Purbhaji Kelkar,
Age-38 years,
R/o-Mantri Nagar, Nanded.
7) Anita Purbhaji Kelkar,
Age-35 years,
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8) Kalpana Purbhaji Kelkar,
Age-32 years,
9) Vidya Purbhaji Kelkar,
Age-28 yeras,
All R/o- Labour Colony, Nanded.
...RESPONDENTS
...
Shri. S.C. Bhosale Advocate h/f. Shri. H.S. Bedi
Advocate for Appellant.
Shri. K.G. Patil, A.P.P. for Respondent No.1 and
Respondent Nos. 2 to 9 ( L.Rs. of deceased Vivekanand
Kelkar - through A.P.P. Shri. K.G. Patil.
...
CORAM: K.U.CHANDIWAL AND
A.I.S. CHEEMA, JJ.
DATE OF RESERVING JUDGMENT : 15TH OCTOBER, 2013.
DATE OF PRONOUNCING JUDGMENT:23RD OCTOBER, 2013.
JUDGMENT [PER A.I.S. CHEEMA, J.] :
1. This Appeal is against conviction of Gagandeep Singh
Lakhbindar Singh Randhwa (hereinafter referred as "accused") under Section
302 and 307 of Indian Penal Code, 1860 ("I.P.C." in brief). The Appellant
was tried before Additional Sessions Judge at Nanded in Sessions Case No.
155 of 2008 for offence under Sections 302, 307, 120-B read with 34 of
I.P.C. and 4/25 of the Arms Act. He has been convicted under Section 302
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and 307 of I.P.C. and acquitted of the offence punishable under Section
120-B of I.P.C. and 4/25 of the Arms Act vide the Judgment dated 17th
June, 2011.
2. Case of the prosecution in brief, is as under:-
(A) Complainant Ram Baburao Wankhede had, on 22nd July,
2008, in the afternoon gone to Science College, Nanded for withdrawal of
T.C. of his nephew Sachin and for the purpose, was standing in the queue so
that signature of Chaudekar Sir could be taken. At that time, a son of Sardarji
tried to intervene in the queue. Complainant objected to this. In response, that
person asked if he does not know him and whether he does not know whose
dictate runs in Nanded and that he is Sardarji. That person also threatened
complainant that he will see him and then went away.
. On 23rd July, 2008 complainant went to the college again so
that he could secure the T.C. of Sachin. His friend Vivekanand alias Pappu
(hereinafter referred as "deceased Pappu") met him. Both were chitchatting.
At that time another friend Azim Shaikh (PW-13) studying in M.Sc. first
year and one Sagar came and they were near the gate of the college. One
Anil Waghmare also came there. At that time the son of Sardarji, who had on
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earlier day quarreled with the complainant, reached there along with two
other sons of Sardarji and pointed out the complainant to those two Sardarjis
saying that he is the person who had yesterday beaten him. Due to this, those
persons started arguing. At that time deceased Pappu intervened to explain.
While this was going on, a madam from the college (PW-6 - Junior Lecturer
Sulochana Shakarwar) came that side and she said that they should not
quarrel. However, those persons were not listening and to decide who was at
fault yesterday, all of them went towards the cabin of Chavdekar Sir. In the
cabin, Chavdekar Sir was not there. The madam who had earlier talked to
them was there and she again explained. At that time, from those three
persons, one took out a dagger and giving abuses, he said that he will show
them and that he will finish them of, and so saying, he struck complainant on
his stomach. Deceased Pappu intervened. That person attacked Pappu. In
that, complainant intervened and he was given yet another two blows on the
back. Complainant fell down. That person again gave blows on the person of
deceased Pappu and then those persons ran way.
. The complainant and his friend deceased Pappu were taken to
hospital by friends of complainant, namely, Vijay Jadhav, Ananda Hatkar
(PW-5), Mahendra Narwade (PW-12).
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(B) While being admitted in the hospital, complainant gave First
Information Report (for short "F.I.R.") as above and in the F.I.R. he
mentioned that he has come to know that his friend Pappu has expired. He
added that son of Sardarji who had on earlier day quarreled with him was one
Deelipsingh Harising Pawar and on the day of incident the son of Sardarji
who had stabbed them, was accused Gagandeep Singh and that he does not
know the name of the third person.
(C)
The incident had occurred in the Science College of Nanded at
about 2.00 p.m. By 14.27 hours complainant Ram was examined at Shri.
Guru Gobind Singhji Memorial Hospital, Nanded by PW-14 Dr. Dadarao.
As Pappu expired, his inquest on M.L.C. was done at 15.45 hours and his
clothes were also seized. The inquest panchnama was got done by P.I.
Santukrao Solunke (PW-17). The postmortem was done at 17.40 hours. The
P.I. directed P.S.I. Kale (PW-16) to record statement of the injured
complainant Ram. PW-16 P.S.I. Kamlakar Kale verified from the doctor
whether the injured was in a condition to give statement and around 18.30
hours, he recorded the statement of complainant Ram which was converted
into F.I.R. and crime was registered as No.218 of 2008 at 20.00 hours.
PW-17 P.I. Solunke seized clothes of the witness PW-5 Ananda Hatkar at
20.15 hours and clothes of witness PW-4 Rahul Suryatale at 20.30 hours. The
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accused was arrested at 21.00 hours and clothes of accused were also seized
at 21.05 hours. Earlier accused had been examined by PW-14 Dr. Dadarao
for his injuries, at 19.40 hours. On same day Magistrate also recorded
statement of complainant in the nature of dying declaration.
(D) On the day of incident, PW-17 P.I. Solunke had directed two
constables to preserve the spot of incident when he was himself proceeding
to hospital. The witness carried out spot panchnama in the morning of 24th
July, 2008 at 8.30 a.m. At 10.00 O'clock he seized the clothes of the injured
complainant Ram. The accused, while in custody, on 26th July, 2008
disclosed that he will show the place where dagger used at the time of
incident had been thrown. The accused took the police and Panchas to the
Science College and from thorny Babul bushes which were there on one side
of the gate of the College, the accused gave discovery of the dagger.
(E) Police carried out rest of the investigation of recording
statements of witnesses as well as sending the seized articles to the Chemical
Analyzer ("C.A." for short) on 4th August, 2008 and ultimately charge-sheet
came to be filed. The other two persons were juveniles and they were not
arrayed alongwith accused in this matter.
3. The offence being triable by Sessions Court, the matter came to
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be committed to the Court of Sessions. Charge was framed under Section
302, 307, 120-B read with 34 of I.P.C. and section 4/25 of the Arms Act. The
State brought on record evidence of 17 witnesses and proved the concerned
documents. The defence of the accused, as is appearing upon the cross-
examination of witnesses, is that the deceased Pappu was angry with the
accused as he was in love with one Prajakta who was related to deceased
Pappu. It is also the defence that on the day of incident, there was chaos at
the College and there was hushing and pushing to get T.C., in the course of
which, the deceased Pappu took out dagger and rather he had assaulted the
accused causing him injuries and in the same incident, complainant had got
injured at the hands of deceased Pappu.
4. Being aggrieved by the conviction and sentence, present
Appeal is filed, raising various grounds. It is claimed that the evidence had
not been properly appreciated. The witnesses were interested witnesses. The
Appellant had been instigated and assault, if by the Appellant, was on the
spur of moment. The effect of sudden quarrel has not been considered. The
deceased was not student of the College. Injuries of the accused have not
been explained. The weapon was recovered from open field and Panchas
were interested. Assuming that the Appellant was carrying the dagger, the
assault took place only after instigation and thus he did not have any
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intention from beginning and same can be attributed as reaction under self
defence.
5. We have heard learned counsel for the Appellant-accused as
well as learned A.P.P. It has been argued on behalf of the accused that the
witnesses were interested witnesses and the incident suddenly occurred. The
learned counsel for the Appellant-accused took us through the evidence on
record and during the course of arguments, himself submitted that the
accused deserves to be given benefit of Section 304 Part II of I.P.C. and the
conviction under Section 302 of I.P.C. may be converted. He argued that the
Court may direct that compensation under Section 357 of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C.") be directed to be paid and
leniency in sentence may be shown. Due to the submissions of learned
counsel for Appellant-accused, the learned A.P.P. was directed vide Orders
dated 30th August, 2013 to make available names of the legal representatives
of the deceased. Consequently, legal representatives have been arrayed as
Respondent Nos. 2 to 9 and father of deceased appeared and was heard.
6. The learned A.P.P. submitted that there is overwhelming
evidence available on record and in addition to the complainant who was
seriously injured, there is evidence of other eye witnesses also available. The
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investigation was promptly done. The conviction needs to be maintained.
7. This is first Appeal in serious offence of Section 302 and 307
of I.P.C. Irrespective of the submissions, it is necessary for this Court to be
satisfied that justice is done.
8. The spot panchnama Exhibit 48 has been proved by PW-8
Peon Khalil Baig from the Science College. The spot panchnama was
recorded by PW-17 P.I. Solunke. It shows that the incident had taken place at
the Science College at Nanded. In the College near the office there were
cabins of Vice Principal Pathani and Shri. Chavdekar Sir, Supervisor-H.O.D.
of the Junior College. The cabin of the Vice Principal was locked. Incident
had taken place inside the chamber of Chavdekar Sir and outside the cabin
also. Samples of blood were picked up as fallen on the spot. A comb was
found in the cabin. The evidence of complainant PW-1 Ram, PW-4 Rahul
Suryatale, PW-5 Ananda Hatkar, PW-6 Junior Lecturer Sulochana
Shakarwar, PW-7 Sidharth Dhage, PW-12 Mahendra Narwade and PW-13
Shaikh Azim Ishaq gives picture of the concerned College. The scattered
details of the College from the evidence of these witnesses show that it is a
building having Junior and Senior College and there is play ground
adjoining, where, at the time of incident, cricket was being played. The
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College was functional. There is a gate for entry and although the persons
who are not students of the College are not supposed to enter, the gate is not
guarded. There is a canteen at some distance from gate. There is a way from
the compound of this Science College which leads to People's College also.
The evidence of witnesses shows that at the concerned time, students were in
the process of also taking T.C. and doing other works. There were students
on the play ground also. What emerges is, a college where classes were
going on and also students and staff were carrying on their activities with
reference to office as well as students were on the ground and in building
also.
9. At such place, PW-1 complainant Ram says that he had been to
the Science College on 22nd July, 2008 with Sachin Kadam, at about 12.00
O'clock noon. Before getting T.C., it was necessary to get signature of
Chavdekar Sir for which there was a long queue and complainant claims that
he was standing in the queue. At that time one boy from Sikh community
(further evidence shows, this was Juvenile Deelipsingh) tried to break into
the queue and complainant prohibited him saying that they have been
standing in the queue since long. Evidence is that in response, that boy
(Deelipsingh) told complainant whether he does not know as to who is ruling
in Nanded and that he is Sardarji and threatened to see him and left the place.
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In the cross-examination, regarding the incident of 22nd July 2008, the
accused has sought various details and complainant stated that on that day he
had attended class in the morning and in the afternoon, was standing in the
queue for T.C. The students had lined up for their respective works and there
were about 100 students in the queue. Complainant could not get the T.C. on
22nd July, 2008. On 22nd July, 2008 after obtaining signature of Shri.
Chavdekar Sir, complainant had remained at the College discussing with
friends. The incident of complainant being manhandled by Deelipsingh had
taken place before complainant could obtain the signature of Shri. Chavdekar
Sir. After taking signature of Chavdekar Sir, the complainant has presented
the application in the office on 22nd July, 2008 itself. On that day
Deelipsingh was alone.
10. Coming to the incident dated 23rd July 2008, the evidence of
PW-1 Ram is that to draw the T.C. he had again gone to the College on that
day, at about 1.15 p.m. There he met deceased Pappu as well as PW-13
Shaikh Azim and they were talking to each other. One Anil Waghmare also
came there. His evidence is that, at that time the boy from Sikh community
who had quarreled with him on the prior day (i.e. Deelipsingh) came there
alongwith two other boys from Sikh community and pointed out towards the
complainant to his friends saying that he was the same person who had
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assaulted him on the prior day. Those three persons started quarreling with
the complainant and deceased Pappu intervened and tried to convince them.
At that time, lady professor of the College (further evidence shows, she was
PW-6 Sulochana Shakarwar), came there and instructed them that they
should not quarrel and so saying, she left the place. Evidence of complainant
is that those three persons again started quarreling and then those persons
took the complainant and others to the cabin of Chavdekar Sir to ascertain as
to who was at fault yesterday. But Chavdekar Sir was not there. Complainant
has deposed that the earlier lady professor (PW-6 Sulochana) was there and
she again instructed them that they should not quarrel.
. The evidence is that thereafter one of the persons from the Sikh
community, took out dagger (Khanjar) and gave blow by the dagger on
abdomen of complainant saying "RUKO SALO TUMKO KHAPAHI DETA
HOO" (further evidence shows that this was the accused). PW-1 has deposed
that at such time his friend deceased Pappu intervened to save complainant
but he was also assaulted by the dagger. PW-1 claims that when he saw that
his friend Pappu is being assaulted, he rushed to catch hold of them and then
the person holding dagger (accused) gave blows on the back of the
complainant. At such time deceased Pappu again caught hold of the accused.
At this stage of the evidence, complainant referred to the accused by his
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name and said that accused Gagandeepsingh again gave blow to deceased
Pappu by dagger. Evidence is that complainant was profusely bleeding and
fell down. Deceased Pappu had sustained injuries to his left side of chest.
Thereafter these persons from Sikh community went away.
11. The complainant has then deposed that he and his friends then
took the then injured Pappu to Civil Hospital by auto rickshaw but during the
treatment, Pappu expired and complainant himself was admitted in the
hospital.
12. Further evidence of complainant is that the third person was
Somnath Tokalwad (Juvenile), who, at the time of incident, was wearing a
Pagdi on his head. Thus the reference to 3 Sikhs. At the time of evidence,
complainant identified the Khanjar-dagger, article 15 as the instrument by
which the injuries were caused.
13. Complainant was cross examined in details and even referred
to his statement to Magistrate. But his version has remained unshaken. The
evidence of complainant regarding the above details of the incident is
substantially corroborated in the matter. PW-5 Ananda Hatkar, PW-12
Mahendra Narwade and PW-13 Shaikh Azim have deposed regarding the
incident. PW-5 Ananda saw his maternal uncle deceased Pappu standing near
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the gate of the College and saw that there was quarrel taking place between
the three persons from Sikh community with the complainant and that
deceased Pappu was trying to explain and how all of them had gone to the
chamber of Chavdekar Sir. PW-12 Mahendra also refers to the incident
which was taking place first outside in the campus and how the three
Sardarjis and deceased Pappu decided that they should go the chamber of
lecturer. Corroboration is there even from PW-13 Shaikh Azim. The
evidence of these witnesses lends credence to the complainant that
Deelipsingh had come to the College along with accused and Somnath
Tokalwad (then wearing Pagdi as if he was Sardar) and had picked up quarrel
regarding the earlier day incident and to resolve the same, all of them had
gone to the cabin of Chavdekar Sir. These witnesses corroborate complainant
even regarding the actual assault at the cabin.
. The evidence shows that in the cabin, PW-6 Sulochana was
there as she was searching for muster. PW-6 Sulochana has also corroborated
in material particulars the complainant regarding the incident which took
place outside the College building and as to how these persons came to the
cabin of Chavdekar Sir, who was Head of the Department (H.O.D.). PW-6
Sulochana is an independent person. She has deposed that there was
exchange of words going on between the two groups and she tried to
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convince both the groups not to quarrel in the College campus and then she
proceeded in the cabin and these persons also came there and they were
asking for "Sir" i.e. Mr. Chavdekar. She says, she told them that she cannot
tell about whereabouts of Mr. Chavdekar. Her evidence is, at that time there
was exchange of words between the two groups of students and at that time
the accused was saying that whole Nanded is behind him and the other
students said that though Nanded is behind him what he can do. This Junior
Lecturer has deposed that when such exchange of words took place, the
accused took out weapon and rushed towards the student who was asking as
to what he would do. Thereafter the student was injured. Her evidence shows
that, at such time the other group rushed on the assailant while the assailant
was holding the weapon.
. This shows that when accused attacked with dagger, deceased
and complainant had resisted. Cross-examination of PW-6 Sulochana shows
that crowd of students had entered the cabin and the incident had taken place.
She deposed that as so many of them entered, she stood in the corner of the
room. When the incident occurred, she shouted for the staff members to help.
Her cross-examination shows that even the accused had got injured in the
incident. Although PW-6 has been cross-examined to seek various details,
the evidence that accused had taken out weapon and caused injuries, is not
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shattered. It is argued that on the day of evidence, the complainant was in the
Court and he had taken the witness to the Public Prosecutor. This by itself is
no reason to disbelieve the Junior Lecturer. Only because the witness took
direction from the complainant who was in the Court, so as to go to the
Public Prosecutor, that by itself does not mean that the witness is not reliable.
14. We have carefully gone through the evidence of PW-1
complainant Ram, PW-5 Ananda, PW-6 Sulochana, PW-12 Mahendra as
well as PW-13 Shaikh Azim. Although there is detailed cross-examination,
the witnesses have not been shattered or shaken regarding the actual incident
of assault. The witnesses also identified the dagger, Article 15 in Court as the
instrument used to cause injuries.
15. The evidence shows that after the accused along with other two
friends ran away from the spot, the complainant along with his friends,
brought the deceased Pappu who was injured, near the gate of the College.
PW-13 Shaikh Azim rushed to a place called Shreenagar, to bring auto
rickshaw. Evidence of PW-7 Sidhartha Dhage corroborates the complainant
and other witnesses regarding the later part of incident which was inside the
College and he has also deposed that he saw the accused holding dagger
stained with blood while deceased Pappu and complainant Ram were there in
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injured condition. He corroborates the evidence that friends of both the
injured took them to the Hospital. Evidence of PW-4 Rahul Suryatale shows
that he saw when deceased Pappu and complainant Ram were lying down
near gate and heard about the incident. He says that he and his friend Ananda
(PW-5) put both the injured in the auto rickshaw and brought them to Civil
Hospital. PW-4 Rahul says that in this process his clothes got blood stained.
16. Learned counsel for the accused from the evidence of
complainant and witnesses of the incident, has not been able to show any
admissions to doubt the evidence of these witnesses regarding the actual
incident. The defence that deceased had brought the dagger and deceased had
anger against accused due to some love affair has not found support
anywhere and they remain mere suggestions which have been denied. The
argument that witnesses were interested also has no substance. The oral
evidence is supported from F.I.R. where names are referred of persons who
were present and PW's 4 and 5 who helped to take the injured also had blood
stains on their clothes which are proved to be of the injured as the evidence
shows. Evidence of PW-6 Sulochana gives weight to evidence of other eye
witnesses also. There is no reason to disbelieve complainant who was
himself seriously injured.
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17. At the Hospital, PW-14 Dr. Dadarao examined complainant
Ram at 14.27 hours. The injury certificate is at Exhibit 62. The evidence of
Dr. Dadarao shows that complainant had following injuries:-
"i) Stab injury 3 cm. X 4 cm. on back on later to right
scapula. It was profusely bleeding. It was running in
oblique direction. It was grievous in nature. It was
caused by sharp and hard weapon. It was fresh injury.
ii) Stab injury of size 3 X 2 X 3 cm. on right scapular
region. It was bleeding. It was grievous in nature
caused by sharp and hard weapon. It was fresh.
iii) Stab wound size 3 X 2 X 2 cm. on left
hypochondria region. It was running in oblique
direction. It was simple. "
. PW-14 Dr. Dadarao deposed that injury No.1 was on vital part
of the body and complainant could have died of profuse bleeding. The death
was possible if medical treatment was not provided immediately. The Doctor
deposed that injuries were possible by dagger, article 15, which was before
the Court. In the cross-examination, this Doctor deposed that if emergency
medical treatment is provided, the injuries were not sufficient to cause death.
Inspite of such admission, the fact remains that injury No.1 was on the vital
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part of the body. Only because emergent medical aid could be made
available, does not make the incident less grave.
18. Evidence of PW-2 Panch Maroti Muneshwar read with the
evidence of PW-17 P.I. Solunke, shows that on 23rd July 2008 at 15.45 hours
inquest panchnama Exhibit 20 was carried out. Evidence of PW-.3 Dr. Uttam
Ingle is available, regarding postmortem done on the person of deceased
Pappu. Dr. Uttam found the following external injuries:-
"I) Stab wound over lower side of left chest. 2.1/2 cm.
left side on sternum 9.5 cm. below the left nipple - Size
7 X 3 cm. X cavity deep. Oblique. It penetrated liver
lung right and 7th rib fractured.
II) CLW over chin size 1 X 1 X 1/2 cm.
III) Liner abrasion over left eye brow to left ear 10 cm.
length.
IV) Incised would over left shoulder joint 2 X 1 X 1/2
cm.
V) Incise wound over upper outer side on left chest, 5.5
cm. above left nipple - size 3 X 1 X 1 cm.
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VI) Incise wound over inner aspect of left elbow joint,
size- 3 X 1 X 1 cm.
VII) Incise wound over middle pair of half middle ring
little finger from palmer surface 1/2 and above
amputation.
VIII) Incise wound over palmer surface of right base of
the thumb oblique 3 X 1 X 1 cm.
IX) Incise wound over inner aspect of right leg 3 cm.
above ankle joint 5 X 3 cm. with bone deep. Complete
cut of 7th rib near sternum."
. The Doctor referred to the corresponding internal injuries also
and gave opinion that the death was caused "due to hemorrhagical shock due
to penetrating injury to vital organs". The evidence is that injury No.1 was
sufficient to cause death in ordinary course of nature. The Doctor opined that
the injuries were possible by weapon like Article 15, the dagger which was
before the Court.
. Keeping in view the inquest panchnama as well as the
postmortem report, it needs to be held that the State has established that
Vivekanand @ Pappu Purbhaji Kelkar died due to culpable homicide.
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19. Evidence of PW-11 Radhakrishna Khade read with the
evidence of PW-17 P.I. Solunke, has proved on record that on 23rd July,
2008 itself at 20.15 hours clothes of witness No.5 Ananada vide panchnama
Exhibit 55 and clothes of PW-4 Rahul vide panchnama Exhibit 56 were
seized. The clothes of these witnesses had blood stains. The evidence of
PW-5 Ananda gets support from this evidence that he was present at the time
of incident and had helped to take the injured to the hospital. Evidence of
PW-4 Rahul also gets support that he had helped in carrying the injured to
the hospital.
20. The accused was arrested on 23rd July, 2008 at 21.00 hours,
can be seen from memorandum and panchnama Exhibit 50, 51. Evidence of
PW-10 Aniket Bhavre shows that on 23rd July, 2008 at 21.05 - 21.15 hours
clothes of accused were seized which are Articles 5, 9 and 10 and panchnama
Exhibit 53 was recorded. The jean pant and shirt of the accused had various
blood stains. Even on his Pagdi, there were blood stains. Thus, the evidence
shows that in the same evening of the day of incident, the blood stained
clothes of the deceased, as well as witnesses and even the accused were
seized. The clothes of the complainant injured Ram came to be seized on
24th July, 2008 in the morning vide panchnama Exhibit 57 proved by PW-11
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Radhakrishna and Investigating Officer PW-17 Solunke.
21. The other incriminating evidence against the accused is
discovery of dagger, Article 15. Evidence of PW-9 Sidhodhan Dudhamal
read with evidence of Investigating Officer reveals that on 26th July, 2008
the accused gave memorandum statement. Ignoring inculpatary part, what
can be seen from the memorandum is that the accused expressed before
Panchas and police that he will show where the dagger has been thrown.
Evidence of PW-9 and the panchnama show that the accused took police and
panchas near the Science College and from near the gate from thorny bushes,
he had taken out the dagger. The witness PW-9 deposed that accused himself
took out the dagger from one bush. In the cross-examination it is brought on
record that after getting down from the jeep the accused walked ahead of the
police and panchas and first accused has touched the dagger and shown the
same. This dagger has been identified by the various witnesses of the
incident. Thus the dagger which was used at the time of incident was
discovered at the instance of the accused from the thorny bushes and he had
the exclusive knowledge as to where the same had been thrown.
22. Evidence of PW-15 Police Naik Narayan Patange shows that
with letter Exhibit 65 he had carried the seized articles to the C.A. The C.A.
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reports have been tendered on record by Investigating Officer P.I. Solunke
(PW-17). C.A. report Exhibit 69 shows that the articles were received vide
letter Exhibit 65. It appears that the C.A. received samples of blood of the
deceased, complainant, witnesses and accused, from medical officer Guru
Govind Singh Memorial Hospital. If the C.A. reports are examined, it can be
seen that the clothes of deceased Pappu, full Manila and sandow banian had
got soaked in blood while his jean pant had considerable blood stains of 'AB'
group. The half T-shirt of complainant Ram was also soaked with blood and
his full pant also had considerable blood stains which were of 'AB' group.
The dagger had blood stains of 'AB' group. Jean pant and half open shirt of
accused had innumerable blood stains. Even his Turban had moderate blood
stains. While the jean pant had stains of 'AB' blood group, the half open shirt
of accused had stains of 'A' and 'AB' blood group. His Turban had stains of
blood group 'A'. The Manila of PW-5 Ananda and clothes of PW-4 Rahul
also had blood stains of 'AB' group. Exhibit 70 and 71 show that the
deceased Pappu as well as complainant Ram, both are of blood group 'AB'
while the accused was of blood group 'A' (Exhibit 72). The above discussion
makes it clear that the Turban had moderate blood stains of the blood of
accused himself. His half open shirt also had blood stains of his own blood
group. However, on his half open shirt there were also further innumerable
blood stains of 'AB' blood group which is of the deceased as well as the
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injured complainant. Even his jean pant had blood stains of 'AB' group. The
accused had also some injuries which has come on record in the evidence of
PW-4 Dr. Dadarao and which can be seen in certificate Exhibit 63. His
injuries were of simple in nature but some of them were incise wounds.
Although the investigating officer had stated that these were self inflicted
injuries, but what appears from the evidence is that the accused must have
suffered these injuries at the time of incident. Thus his clothes had some of
his own blood stains and lot of blood stains of the blood group of deceased
and complainant.
23. Looking to the oral and documentary evidence available on
record, prosecution has established that culpable homicide of deceased Pappu
was due to the injuries caused by the accused and he had also attempted to
commit murder of the complainant. The complainant and accused were not
even knowing each other earlier and a petit matter got blown out of
proportion. There is no reason why falsely complainant should involve the
accused. The evidence brought on record by the prosecution is appearing to
be convincing to hold the accused guilty.
24. At the time of arguments, learned counsel for accused
submitted that the evidence as has come on record, clearly shows that in the
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campus of the College accused and the complainant helped by the deceased,
entered into an argument regarding the earlier day incident. After the lady
lecturer PW-6 Sulochana asked them not to quarrel, they had decided to go
and get the arguments settled from Chavdekar Sir. It is argued that this fact
which has come on record itself indicates that the accused did not have any
intention to commit murder of the deceased who was not even known to him
before the incident. It is argued that the fact that these persons then
proceeded to the cabin of Mr. Chavdekar indicates that there was no planning
to commit any such incident of assault. The learned counsel submitted that
the accused being Sikh, carries a dagger and the same was easily available to
him at the time of incident which took place in the cabin of Chavdekar Sir.
According to the Advocate, in the heat of moment, in a sudden quarrel, the
incident took place. Submission is that the offence may be converted into
culpable homicide not amounting to murder as the accused did not intend to
commit murder.
25. With reference to applicability of Section 304 of I.P.C., it
would be appropriate to consider some of the Rulings. Reference needs to be
made to the case of Gurmukh Singh V. State of Haryana reported in "2010
Cri.L.J. 450". In that matter the incident had occurred on the spur of
moment and appellant therein had given single 'lathi' blow on the head of
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deceased. It was held that there was no intention or premeditation in mind of
appellant to inflict such injuries to deceased as were likely to cause death in
ordinary course of nature. Benefit was given and offence under Section 302
was converted to 304 II of IPC. In fact in the Judgment, the Hon'ble
Supreme Court has discussed various earlier judgments of the Supreme Court
dealing with similar issue and referred to the facts of those various matters
and where it was found by the Hon'ble Supreme Court that instead of
Section 302 of IPC, Section 304 of IPC needs to be applied. In yet another
matter in the case of "Bhagwati Prasad Vs. State of M.P." reported in
"2010 Cri.L.J. 528" the accused had given spear blow to the victim and in
the postmortem, it was found that death was caused because of the piercing
blow, due to which right lung was damaged by penetrating spear. The High
Court of M.P. had converted the offence from Section 302 of IPC to Section
304 II of IPC. The Hon'ble Supreme Court upheld the decision of the High
Court.
. In the matter of "Sukhbir Singh V/s State of Haryana"
reported in "(2002) 3 SCC 327", the son of deceased was sweeping the street
when some mud splashed and stuck to the appellant, who was passing in the
street. When appellant and son of deceased were abusing each other, the
deceased separated them and gave two slaps to the appellant. The appellant
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went home and came along with 8 other accused variously armed and the
appellant gave two thrust-blows with his 'bhala' on the upper right portion of
chest of deceased. The Hon'ble Supreme Court considering that matter under
Sections 141, 149 and 302 of IPC observed as follows :-
"19. The High Court has also found that the occurrence had
taken place upon a sudden quarrel but as the appellant was
found to have acted in a cruel and unusual manner, he was not
given the benefit of such exception. For holding him to have
acted in a cruel and unusual manner, the High Court relied upon
the number of injuries and their location on the body of the
deceased. In the absence of the existence of common object, the
appellant cannot be held responsible for the other injuries
caused to the person of the deceased. He is proved to have
inflicted two blows on the person of the deceased which were
sufficient in the ordinary course of nature to cause his death.
The infliction of the injuries and their nature proves the
intention of the appellant but causing of such two injuries
cannot be termed to be either in a cruel or unusual manner. All
fatal injuries resulting in death cannot be termed as cruel or
unusual for the purposes of not availing the benefit of Exception
4 of Section 300 IPC. After the injuries were inflicted and the
injured had fallen down, the appellant is not shown to have
inflicted any other injury upon his person when he was in a
helpless position. It is proved that in the heat of passion upon a
sudden quarrel followed by a fight, the accused who was armed
with bhala caused injuries at random and thus did not act in a
cruel or unusual manner."
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26. Considering the above as well as facts of the various
Judgments referred by the Hon'ble the Supreme Court in the matter of
Gurmukh Singh (supra), it would be appropriate to consider facts of the
present matter.
27. The facts do indicate that in the quarrel the accused lost self
control. It does not appear that there was any premeditation. The quarrel
converted into sudden fight in the chamber of Chavdekar Sir and in the heat
of passion the accused committed the offence. The evidence shows that in the
sudden fight the injuries got caused. There is no material to show that the
accused took any undue advantage or acted in a cruel or unusual manner.
Exception 4 under Section 300 of I.P.C. is attracted to the facts of the present
matter. We find that culpable homicide of deceased Pappu cannot be said to
be murder. From the facts it is found that when accused was assaulting with
the dagger, knowledge will have to be attributed to him that by such act he is
likely to cause death. As such he is liable to be punished under Section 304
Part II of I.P.C.
28. We are proceeding to partly allow the Appeal. The father of the
deceased, Purbhaji Kelkar was heard regarding the compensation which
could be given to the legal heirs of the deceased. He, however, expressed that
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at the cost of death of his son, he was not interested in money. Ignoring the
sentimental part, we find it appropriate that while converting the sentence
from 302 of I.P.C. to 304 Part II of I.P.C., substantial amount of fine needs to
be imposed, which can be given as compensation to the old parents. The
learned counsel for accused has expressed that the accused is ready to pay
amount as may be directed, which could be given as compensation. Although
there are other legal heirs, the real loss is of the old parents. We thus, propose
to direct the payment of compensation only to Respondent Nos.2 and 3 from
amongst legal heirs of deceased.
29. For the reasons mentioned above, we pass following order:-
ORDER
(A) The Appeal is partly allowed.
(B) The conviction and sentence under Section 307 of
I.P.C. is maintained.
(C) The conviction and sentence of the
Appellant/accused under Section 302 of I.P.C. is
converted into one, under Section 304 Part II of I.P.C.
Appellant shall be treated as acquitted under Section
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302 of I.P.C. and convicted under Section 304 Part II
of I.P.C.
(D) For offence under Section 304 Part II of I.P.C.
Appellant is sentenced to suffer rigorous imprisonment
for 10 years and to pay a fine of Rs.5,00,000/- (Rupees
Five Lakhs). In default to suffer rigorous imprisonment
for two years.
(E) Under Section 357 of Cr.P.C., on recovery of fine,
the same be equally divided and deposited to the Bank
Accounts of Respondent Nos.2 and 3, as compensation.
(F) The Appellant/accused is entitled to set off period
of detention already undergone against sentence of
imprisonment, under Section 428 of Cr.P.C.
(G) Both the sentences of imprisonment shall run
concurrently.
[A.I.S. CHEEMA, J.] [K.U. CHANDIWAL, J.]
asb/SEP13
