Bombay High Court
Namdev Mahadev Dhumal And Ors vs The State Of Maharashtra on 6 October, 2015
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.719 OF 2007
1. Namdev Mahadev Dhumal
2. Anil Namdev Dhumal
3. Sunil Namdev Dhumal
all residing at Babla Niwas,
Vishnawi Nagar, Virar (East),
Taluka : Vasai. ...Appellants.
versus
State of Maharashtra
(at the instance of Virar Police Station)
ig ..Respondent.
.....
Mr. Manoj Mohite with Mr. Yashpal Thakur i/b Mr. Salim A. Shaikh
for the Appellant.
Mr. A.S. Shitole, Addl.P.P. for the State.
.....
CORAM : SMT V.K. TAHILRAMANI, Acting C.J.&
A.S. GADKARI, J.
Judgment reserved on : 22nd September, 2015.
Judgment pronounced on : 6th October, 2015.
JUDGMENT (PER A.S. GADKARI, J.) :
The Appellants have challenged the judgment and order
dated 18th June, 2007 passed by the 2 nd Ad-hoc Additional
Sessions Judge at Palghar, District Thane in Sessions Case No.12
of 2006 thereby convicting them for the offence punishable
under Section 302 read with Section 34 of the Indian Penal Code
and sentenced to suffer rigorous imprisonment for life and to pay
fine of Rs.1,000/- each. In default of payment of fine to further
suffer simple imprisonment for one month. The Appellants have
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also been convicted under Section 324 read with Section 34 of
the Indian Penal Code and sentenced to suffer rigorous
imprisonment for three years. The Trial Court has directed that
the substantive sentences to run concurrently.
2. The facts which give rise and necessary to decide the
present Appeal can briefly be stated as under :
(i) The date of incident is 9th October, 2005. Deceased Bhavin
Jayesh Parekh was a builder by profession and was running a firm
in the name and style of Deep Construction at Sainathnagar,
Virar (East). On 9 th October, 2005 at about 6 p.m. Hardik Rathod
(P.W.1) was sitting in the office of deceased Bhavin Parekh at
Virar (East). The said office was on the ground floor and there
was an open space in front of the said office. Bhavin Parekh had
constructed a building known as Babla Niwas. The drainage
pipeline of the said Babla Niwas was broken and for the purpose
of repairing the same, each of the residents of Babla Niwas was
to contribute Rs.50/-. The said contribution was to be deposited
with builder Bhavin Parekh. The Appellant No.1 - Namdev did
not give his contribution. The Appellant No.1 had been to the
office of Bhavin at about 6 p.m. and abused him. Bhavin Parekh
left the office. Thereafter Hardik Rathod along with Bhavin
Parekh had been to one site where the construction of a chawl
was in progress. On their way Babla Niwas was situated. The
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Appellant No.1 was sitting near the staircase of the said building.
The house of the Appellants was in room No.2 on the ground floor
of the said Babla Niwas. While Hardik Rathod and Bhavin Parekh
were passing by the said Babla Niwas, the Appellant No.1 again
started abusing them. Bhavin Parekh (deceased) told the
Appellant No.1 that, the Appellant No.1 may not pay towards the
contribution, but the Appellant No.1 should not visit his office and
abuse him (Bhavin). However, the Appellant No.1 continued
abusing Bhavin and assaulted Bhavin with hand.
(ii) In the meanwhile, the Appellant Nos.2 and 3 also
came there. They assaulted Bhavin Parekh. The Appellant Nos.2
and 3 caught hold of Bhavin Parekh. Hardik Rathod (P.W.1) and
Harshad Sankpal (P.W.2) tried to separate Bhavin from the
clutches of the Appellant Nos.2 and 3. At that time the Appellant
No.1 came there and gave a blow with knife on the stomach of
Hardik Rathod. Hardik shouted and asked his friends, that they
should run as Hardik was assaulted. When Hardik and Harshad
started running towards the road, the Appellant No.1 chased
them. After some time the Appellant No.1 returned back. Hardik
and Harshad also followed him to see Bhavin Parekh. They saw
that Bhavin Parekh was caught by the Appellant Nos.2 and 3 and
the Appellant No.1 was assaulting Bhavin with knife on his chest.
After the assault Bhavin ran towards Hardik and Harshad and
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they started running. However, after running some distance,
Bhavin Parekh collapsed on the ground near the shop viz. 'Usha
Ladies Tailor'. Hardik and Harshad lifted Bhavin and put him in
an auto-rickshaw and took him to hospital. Bhavin was declared
dead before admission at the hospital. Hardik was treated by the
doctor.
(iii) Thereafter Hardik went to Virar Police Station and lodged
First Information Report. On the basis of the First Information
Report, offence bearing C.R. No.I-224 of 2005 under Sections,
302, 324, 504 read with Section 34 of the Indian Penal Code
came to be registered. The investigation was handed over to
Police Sub-Inspector Shivaji Gaikwad (P.W.5). PSI Shivaji Gaikwad
conducted the spot panchanama Exhibit 24. He also drew
inquest panchanama (Exhibit 33). He thereafter sent the body of
deceased Bhavin Parekh for postmortem. He recorded the
statements of witnesses. He also seized the clothes of the
deceased which were received from the Rural Hospital by
effecting a panchanama (Exhibit 35). He also seized the clothes
of the Appellant Nos.2 and 3 which are at Exhibits 27 and 25
respectively. He arrested the Appellants. After receipt of the
report from Chemical Analyser and the postmortem notes, he
submitted charge-sheet in the Court of Judicial Magistrate, First
Class against the Appellants. The case was committed to the
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Court of Sessions as contemplated under Section 209 of the
Criminal Procedure Code.
(iv) The Trial Court framed charge below Exhibit 8 for the
offence punishable under Sections 302, 324 read with Section 34
of the Indian Penal Code, to which the Appellants pleaded not
guilty and claimed to be tried. The defence of the Appellants was
of total denial. The Trial Court after recording the evidence and
after hearing the parties to the said case was pleased to convict
the Appellants by the impugned judgment and order dated 18 th
June, 2007 as stated herein above.
3. Heard Mr. Manoj Mohite with Mr. Yashpal Thakur, learned
counsel for the Appellants and Mr. A.S. Shitole, learned APP for
the State and with their assistance, we have also perused the
entire record pertaining to the present case.
4. The prosecution in support of its case examined in all five
witnesses. P.W.1- Hardik Piyush Rathod is the injured eye
witness. P.W.2 - Harshad Jagannath Sankpal is the friend of
deceased Bhavin Parekh and Hardik Rathod (P.W.1). P.W.3 - Dilip
Girdhar is a panch witness to the recovery of knife at the
instance of the Appellant No.1- Namdev. P.W.4- Dr. Swati Sarkate
is the medical officer who conducted autopsy on deceased
Bhavin Parekh. P.W.5 is PSI Shivaji Gaikwad, the investigating
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officer of the present crime.
5. P.W.1- Hardik Rathod in his testimony has deposed that he
was knowing deceased Bhavin Parekh. Bhavin Parekh was
builder and was running a firm in the name and style of Deep
Construction at Sainathnagar, Virar (East). That on 9 th October,
2005 at about 6 p.m. he was sitting in the office of deceased
Bhavin Parekh at Virar (East) which was situated on the ground
floor and there was an open space in front of the said office.
Bhavin Parekh had constructed a building known as Babla Niwas.
The drainage line of the said Babla Niwas was broken and for the
purpose of repairing the same, each of the residents of Babla
Niwas was to contribute Rs.50/-. The said contribution was to be
deposited with builder Bhavin Parekh. The Appellant No.1-
Namdev Dhumal did not give the said contribution. At about 6
p.m. the Appellant No.1 had been to the office of Bhavin Parekh
and abused him. Thereafter Bhavin Parekh left the office. P.W.1-
Hardik Rathod along with Bhavin Parekh went to the site where
the construction of a chawl was in progress. On the way, there
was Babla Niwas. The Appellants were residing in room No.2 on
the ground floor of the said Babla Niwas. The Appellant No.1 was
sitting near the staircase of the said building. While Hardik
Rathod and Bhavin Parekh were passing by the said Babla Niwas,
the Appellant No.1 again started abusing them, upon which
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Bhavin Parekh (deceased) told him that, the Appellant No.1 may
not pay the contribution, but he should not visit his office and
abuse him (Bhavin). However, the Appellant No.1 continued
abusing him and assaulted Bhavin with hand. In the meanwhile,
the Appellant Nos.2 and 3 also came there and assaulted Bhavin
Parekh. The Appellant Nos.2 and 3 caught hold of Bhavin Parekh.
At that time Hardik Rathod (P.W.1) and Harshad Sankpal (P.W.2)
tried to rescue Bhavin from the clutches of the Appellant Nos.2
and 3. At that time the Appellant No.1 came there and gave a
blow with knife on the stomach of Hardik Rathod. Hardik raised
shouts that the Appellant No.1 was having a knife and they
should run as Hardik was assaulted. When Hardik and Harshad
started running towards road, the Appellant No.1 chased them.
After some distance, the Appellant No.1 returned back. Hardik
and Harshad also followed him to see Bhavin Parekh who had not
come with them. They saw that Bhavin Parekh was caught by
the Appellant Nos.2 and 3 and the Appellant No.1 was assaulting
Bhavin with knife on his chest. After the said assault Bhavin ran
towards Hardik and Harshad. Hardik, Harshad and Bhavin
started running. However, after running some distance, Bhavin
Parekh collapsed on the ground near Usha Ladies Tailor. Hardik
and Harshad lifted Bhavin, put him in an auto-rickshaw and took
him to Sanjivani Hospital, Virar (West). Before admission, the
doctors declared Bhavin dead. Hardik was treated at Sanjivani
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Hospital. Doctor put stitches on his wound. Hardik thereafter
went to Virar Police Station and lodged his complaint. In the
detailed cross-examination of Hardik Rathod (P.W.1), no material
which is beneficial to the Appellants has been brought on record.
6. P.W.2 - Harshad Jagannath Sankpal is a friend of Hardik
Rathod (P.W.1) and was also knowing Bhavin Parekh (deceased).
P.W.2 in his testimony has also reiterated the facts which have
been stated by P.W.1 - Hardik Rathod in his testimony. He has
also stated that when they tried to rescue Bhavin Parekh from
the clutches of the Appellant Nos.2 and 3, Hardik Rathod told him
to run away as the Appellant No.1 has got knife and has
assaulted Hardik on his stomach. Thereafter P.W.2 and Hardik
started running. They thought that Bhavin Parekh might be
following them. Hence, they turned back and saw that the hands
of Bhavin Parekh were caught by the Appellant Nos.2 and 3 and
the Appellant No.1- Namdev gave a knife blow to the chest of
Bhavin Parekh. Thereafter Bhavin Parekh relieved himself and
started running towards them and after running some distance,
he collapsed near the shop of Usha Ladies Tailors. There was a
deep injury on his chest. They lifted Bhavin Parekh and by
putting him in an auto-rickshaw brought him to Sanjivani
Hospital. The doctors declared Bhavin dead before admission.
7. P.W.3- Dilip Girdhar is a panch witness to the discovery of
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knife at the instance of the Appellant No.1. This witness is a
formal witness who has proved the memorandum panchanama
dated 16th October, 2005 and recovery panchanama of the knife
in question which is at Exhibit 23.
8. P.W.4 - Dr. Swati Sarkate was then attached to Virar
Hospital as Medical Officer. She conducted the autopsy/
postmortem on 9th October, 2005 on the dead body of Bhavin
Parekh. During the postmortem examination she found stab
wound
of 5 cm x 3 cm x 5 cm on the right side of the chest
which was incised wound over 3rd and 4th intercostal cartilage,
haemothorax, thoracic cavity with blood. During the internal
examination she also noticed an injury of 3 cm x 2 cm cut over
arch of aorta extending in the mucous membrane seen blood
oozing from it. She therefore opined that the deceased died due
to hemorrhagic shock due to rupture of arch of aorta due to stab
wound. P.W.4 has stated that the stab injury mentioned in the
postmortem notes was possible by Article A (knife).
9. P.W.5 - PSI Shivaji Gaikwad, the investigation officer in his
testimony has narrated the various steps taken by him during the
course of investigation of the present crime. P.W.5 in his
testimony has stated that at the instance of the complainant
Hardik Rathod (P.W.1) he effected a panchanama of scene of
offence by visiting the spot in presence of panchas. The said
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panchanama is at Exhibit 24. This witness has also proved
various other documents which are on record. In the cross
examination of this witness, no material has been elicited by the
Appellants which would help them in discrediting the testimony
of this witness.
10. The evidence on record shows that the knife which was
recovered at the instance of the Appellant No.1, in the presence
of P.W.3 - Dilip Girdhar was stained with human blood. During
the course investigation bloodstains were also found on the
clothes of the Appellant No.1. The Chemical Analyser's report
discloses that the blood which was found on the knife and clothes
of the Appellant No.1 was of 'O' group. The blood group of the
deceased was also 'O'.
11. Mr. Mohite, learned counsel for the Appellants submitted
that P.W.1, the injured eye witness and P.W.2 in their testimony
have stated that the Appellant No.1 armed with a knife came on
the spot subsequently and therefore, the Appellant Nos.2 and 3
cannot be said to share common intention with the Appellant
No.1 in inflicting the blow of knife on P.W.1 and on Bhavin Parekh
(deceased). Mr. Mohite drew our attention to the scene of
offence panchanama effected at the instance of the complainant
Hardik Rathod (P.W.1) wherein it has been stated by the said
witness i.e. P.W.1 that when the Appellant Nos.2 and 3 started
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assaulting Bhavin Parekh and Hardik Rathod, the Appellant No.1 -
Namdev Dhumal went to his house which was situated very near
to the spot of incident and brought a knife and thereafter caused
stab wound on the stomach of Hardik Rathod. Mr. Mohite,
therefore, contended that the Appellant Nos.2 and 3 did not
share common intention with the Appellant No.1 while inflicting
stab wound on P.W.1- Hardik and deceased Bhavin Parekh. A
close scrutiny of the evidence on record discloses that P.W.1-
Hardik and P.W.2- Harshad in their testimony have categorically
stated that after the Appellant No.1 caused stab wound on
Hardik, he along with Harshad started running towards road.
That Appellant No.1 chased them and after some distance the
Appellant No.1 returned back. Hardik and Harshad also followed
him to see Bhavin Parekh who did not come with them. Hardik
and Harshad saw that Bhavin Parekh was caught hold by the
Appellant Nos.2 and 3 and the Appellant No.1 was assaulting
Bhavin with knife on his chest. This testimony of the eye witness
is no where shaken in their cross-examination by the Appellants
and therefore, we find that the Appellant Nos.2 and 3 helped the
Appellant No.1 in causing the stab wound on the chest of
deceased Bhavin Parekh. We are therefore of the considered
opinion that the Appellant Nos.2 and 3 do share common
intention with the Appellant No.1 in causing the stab wound to
deceased Bhavin Parekh on his chest.
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12. Mr. Mohite thereafter submitted that in the present case the
Appellant No.1 has given only one single blow on deceased
Bhavin Parekh. Likewise, he has also inflicted one single blow
with knife on the injured Hardik (P.W.1). He submitted that the
incident of stabbing has resulted from the occurrence of a scuffle
between the Appellant No.1 on one side and Bhavin, Hardik and
Harshad on the other side. He therefore submitted that the
present case would fall under Exception 4 of Section 300 of the
Indian Penal Code and therefore would attract an offence
punishable under Section 304 Part II of the Indian Penal Code.
Mr. Mohite further contended that the act of the Appellant No.1 is
not premeditated in view of the statement made by P.W.1- Hardik
while effecting the scene of offence panchanama coupled with
the evidence on record and the present case involves only a
single blow of knife by the Appellant No.1 on deceased Bhavin
Parekh. He further contended that P.W.4- Dr. Swati Sarkate has
nowhere stated that the injury which was caused by the
Appellant No.1 was sufficient in the ordinary course of nature to
cause death and therefore, the present case falls within the
ambit of Exception 4 of Section 300 of the Indian Penal Code. In
support of his contention Mr. Mohite relied upon a decision of the
Supreme Court in the case of Bunnilal Chaudhary v. State of
Bihar reported in AIR 2006 SC 2521 = (2006) 10 SCC 639. A
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close scrutiny of the evidence of P.W.4- Dr. Swati Sarkate who
conducted the postmortem examination of deceased Bhavin
Parekh in her testimony has nowhere stated that the injury
caused by the Appellant No.1 to deceased Bhavin, was sufficient
in the ordinary course of nature to cause death. That was not
even stated to be likely to cause death. It appears that there
was no motive or intention of the Appellants to commit murder of
deceased Bhavin Parekh. The Appellant No.1 had caused an
injury to P.W.1- Hardik and thereafter Hardik started running from
the scene of offence. Likewise, after receiving an injury on the
chest Bhavin Parekh also started running from the scene of
offence and subsequently at some distance, he collapsed. This is
a case involving a single blow of knife by the Appellant No.1. We
are of the considered opinion that the Appellants did not intend
to commit murder of Bhavin Parekh and the Appellant No.1
during the course of a sudden quarrel caused injuries to Bhavin.
As stated herein above, P.W.4 - Dr. Swati Sarkate has nowhere
stated or opined that the injury received by deceased Bhavin was
sufficient in the ordinary course of nature to cause death or
likely to cause death.
13. Taking into consideration the entire evidence available on
record, we are of the opinion that the case of the Appellants falls
within the purview of Exception 4 of Section 300 and therefore,
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the offence committed by the Appellants is punishable under
Section 304 Part II of the Indian Penal Code. We therefore modify
the conviction of the Appellants from an offence punishable
under Section 302 of the Indian Penal Code read with Section 34
of the Indian Penal Code to Section 304 Part II read with Section
34 of the Indian Penal Code and the Appellants are sentenced to
undergo rigorous imprisonment for ten years and to pay a fine of
Rs.2,000/- each. In default of payment of fine, to further undergo
rigorous imprisonment for one month.
ig The conviction and
sentence of the Appellants under Section 324 read with Section
34 of the Indian Penal Code is maintained.
14. Hence the following order :
i) The conviction and sentence of the Appellants under
Section 302 read with Section 34 of the Indian Penal Code is
set aside and instead of that the Appellants are convicted
under Section 304 Part II read with Section 34 of the Indian
Penal Code. The Appellants are sentenced to suffer
rigorous imprisonment for ten years and to pay a fine of
Rs.2,000/- each. In default of payment of fine, to further
suffer rigorous imprisonment for one month.
ii) The conviction and sentence of the Appellants punishable
under Section 324 read with Section 34 of the Indian Penal
Code is hereby maintained.
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iii) The substantive sentence awarded to the Appellants to run
concurrently. The Appellants are entitled for set off as
contemplated under Section 428 of the Criminal Procedure
Code against the substantive sentence.
The Appeal is partly allowed in the aforesaid terms.
(A.S. GADKARI, J.) (ACTING CHIEF JUSTICE)
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CERTIFICATE
Certified to be true and correct copy of the original signed
Judgment.
