Bombay High Court
Shankar Mahendra Gogati vs The State Of Maharashtra on 9 March, 2016
Bench: V.K. Tahilramani
10. cri apeals 1082-09 & 655-10.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1082 OF 2009
1. Dilbahadur Mansing Khadaka.
Aged about 22 Years, Residing at
Ground Floor, Suprabhat Society,
Gokhale Road, Near Jain Hospital,
Dadar (W), Mumbai.
2. Jaharsing Harising Badela
Aged about 42 Years, residing at
Room No. 30,
Ganeshnagar Zopadpatti, B.J. Road,
Bandstand, Bandra (E),
Mumbai - 400 050.
(At present in Nashik Central Prison) .. Appellants
(Org. Accused Nos. 1 & 3)
Versus
The State of Maharashtra
(At the instance of Pawai Police Station) .. Respondent
WITH
CRIMINAL APPEAL NO. 355 OF 2010
Shankar Mahendra Gogati
Age - 24 Years, Occ. - Service,
Residing at Raj Darbar, Bharat Sanchar
Lane, Room No. 17, in front of
Rajesh Khanna Garden, Santacruz (W),
Mumbai - 400 054. .. Appellant
(Org. Accused No. 2)
Versus
The State of Maharashtra .. Respondent
(At the instance of Sr. P.I.
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Pawai Police Station)
...................
Appearances
Mr. A.G. Toraskar Advocate (appointed) for the Appellants
Smt. V.R. Bhonsale APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
DATE : MARCH 9, 2016.
COMMON ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Appellants i.e original accused No. 1 - Dilbahadur
Mansing Khadaka and original accused No. 3 - Jaharsing
Harising Badela have preferred Criminal Appeal No. 1082 of
2009 against the Judgment and Order dated 31.8.2009
passed by 2nd Ad-hoc Additional Sessions Judge, Greater
Mumbai in Sessions Case No. 389 of 2007. Appellant i.e
original accused No. 2 - Shankar Mahendra Gogati has
preferred Criminal Appeal No. 355 of 2010 against the very
same Judgment and Order. By the said judgment and order,
the learned Session Judge convicted the appellants for the
offence punishable under Section 302 r/w 34 of IPC and
sentenced each of them to suffer imprisonment for life and
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fine of Rs. 500/- each, in default S.I. for one month.
As both the appeals are directed against the very same
Judgment and Order, we are deciding both the appeals
together. For the sake of convenience, we shall refer to the
appellants as they were referred before the trial Court i.e
appellant - Dilbahadur Mansing Khadaka will be referred as
accused No. 1, appellant - Shankar Mahendra Gogati will be
referred as accused No. 2 and Jaharsing Harising Badela will
be referred as accused No. 3.
2. The prosecution case briefly stated, is as under:
(a) There was illicit relationship between the
deceased Chandrabahadur and the wife of
accused No. 3 Jaharsing. Because of this, quarrel
was going on between accused No. 3 and the
deceased. On the day of the incident, the
deceased was at the house of accused No. 3 the
whole day. Thereafter, accused No. 3 asked for
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blue colour Maruti Esteem Car from PW 6 Ramesh
to go to the airport. Accused No. 3 then took the
vehicle of Ramesh and went away. Accused Nos.
1 and 2 are the friends of accused No. 3.
(b) It is the prosecution case that all the three
accused then took the deceased with them in the
Maruti Esteem car bearing No. MH-01/M-8450. It
is the prosecution case that all the three accused
caused the death of Chandrabahadur by
assaulting and thereafter strangulating
Chandrabahadur with a nylon rope. PW 1 Police
Naik Chavan and PW 4 Police constable Kamble
were on night patrolling duty from 8.00 p.m. on
5.2.2007 till the morning of 6.2.2007. While
patrolling, at about 2.30 a.m. near Parsi
Bungalow, they saw one blue colour Maruti
Esteem car standing on the road. The registration
number of the car was MH-01/M-8450. Some
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suspicion arose in the minds of PW 1 Police Naik
Chavan and PW 4 Police Constable Kamble, hence,
they stopped near the car.
(c) They noticed one person was sitting in the driver
seat and another person was sitting on the rear
seat of the car. These persons were accused No.
and 2 to come out of the car. At that time, they
noticed one person sitting beneath the rear side
seat of the car behind the driver. They made
inquiry with the accused persons whereupon the
accused persons told them that the person is
sitting there under the influence of drink. PW 1
Police Naik Chavan then asked the accused
persons to awaken the person. They noticed that
the said person was not in a position to stand, due
to this, their suspicion increased. Hence, accused
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Nos. 1 and 2 were brought to the police station.
PSI Sapkal (PW 17) was at the Police Station. He
was apprised of the facts. Then PW 1 Chavan, PW
4 Kamble, PW 17 PSI Sapkal along with accused
Nos. 1 and 2 came back to the spot where the
vehicle was parked. PSI Sapkal tried to awaken
the person sitting in the car but he could not
succeed. PSI Sapkal then sent the said person to
the hospital. Thereafter, they all came back to
the police station. PW 1 Police Naik Chavan
received a telephonic message at the Police
Station at about 3.30 a.m. that the person who
was taken to the hospital was already dead.
Thereafter, accused Nos. 1 and 2 were
interrogated. On the basis of the information
received, PW 1 Police Naik Chavan lodged F.I.R. on
behalf of the State. The said F.I.R. was against
the present three accused persons and it was
under Section 302 r/w 34 of IPC.
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(d) After lodging of the F.I.R., investigation
commenced. The dead body of the person who
was identified as Chandrabahadur was sent for
postmortem. PW 12 Dr. Jawale performed the
postmortem on the dead body of
Chandrabahadur. On examination, he found 10
injuries on the person of Chandrabahadur. These
injuries were mainly in the nature of abrasions
and contusions. In addition, ligature marks were
found on the neck. According to Dr. Jawale, the
cause of death was due to strangulation with
multiple contusions. After completion of
investigation, charge sheet came to be filed.
3. Charge came to be framed against the appellants under
Section 302 r/w 34 of IPC. The appellants pleaded not guilty
to the said charge and claimed to be tried. Their defence
was that of total denial and false implication. After going
through the evidence adduced in this case, the learned
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Sessions Judge convicted and sentenced the appellants as
stated in paragraph 1 above, hence, this appeal preferred by
the appellants against their conviction and sentence.
4. We have heard the learned Advocate for the
appellants and the learned APP for the State. After giving
our anxious consideration to the facts and circumstances of
the case, arguments advanced by the learned Advocates for
the parties, the judgment delivered by the learned Sessions
Judge and the evidence on record, for the reasons stated
below, we are of the opinion that there is no merit in the
appeal.
5. As far as accused No. 1 - Dilbahadur and accused No. 2
Shankar are concerned, the material evidence is that of PW 1
Police Naik Chavan, PW 4 Police Constable Kamble, PW 7 ASI
Shinde and PW 17 PSI Sapkal.
PW 1 Police Naik Chavan has stated that on 5.2.2007,
he was on patrolling duty. PW 4 police constable Kamble
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was with him. Kamble was rider of bike for night patrolling
and Police Naik Chavan was the pillion rider. At about 2.20
a.m., when they were near Parsi Bungalow, they saw one
blue colour Maruti Esteem car standing on the road. The
registration number of the car was MH-01/M-8450. Some
suspicion arose in the minds of PW 1 Chavan and PW 4
Kamble, hence, they stopped near the car.
PW 1 Police Naik Chavan further stated that they
noticed one person was sitting in the driver seat and another
person was sitting on the rear side of the car. These persons
were accused No. 1 Dilbahadur and accused No. 2. Shankar.
PW 1 Chavan and PW 4 Kamble asked accused Nos. 1 and 2
to come out of the car. At that time, they noticed one person
sitting beneath the rear side seat of the car behind the
driver. They made inquiry with the accused persons
whereupon the accused persons told them that the person is
sitting there under the influence of drink. PW 1 Police Naik
Chavan then asked the accused persons to awaken the
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person. They noticed that the said person was not in a
position to stand, hence, their suspicion increased. The
accused persons were then taken to the Police Station in a
rickshaw. They narrated the incident to PW 17 PSI Sapkal
and PI Patil. Then PW 4 Kamble and PW 1 Chavan along with
PW 17 PSI Sapkal came back to the spot where the car was
parked. They tried to make the person in the car stand but
the person was not responding.
ig The person who was later
identified as Chandrabahadur was taken to the hospital. The
Doctor declared him as dead before admission. On the basis
of the information received, PW 1 Police Naik Chavan lodged
F.I.R. on behalf of the State.
Thus, the evidence of PW 1 Police Naik Chavan
establishes that accused Nos. 1 and 2 were in the car in
which the dead body of Chandrabahadur was found in a
sitting position beneath the rear seat of the car.
6. PW 4 Police Constable Kamble was on patrolling duty
with PW 1 Police Naik Chavan PW 4 Kamble has stated that
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his night patrolling duty commenced at 8.00 p.m. from
5.2.2007 till 9.00 a.m. the next day. Kamble has stated that
at about 2.20 a.m. when they were near Parsi Bungalow at
Pawai, they noticed one Maruti Esteem Car on the road.
They got some doubt about the said car, hence, they parked
their bike and told the persons sitting in the car to come out.
Two persons came out of the car. They were accused Nos. 1
and 2.
Kamble noticed that both the accused were
frightened. The accused persons told them that the engine
of the car had stopped. They checked the car with the help
of torch. They noticed on the back side of the driver's seat in
the gap, one person was sitting in bent position. They made
inquiry with the accused persons about that man. Both the
accused said that that person is under the influence of liquor.
They told the accused persons to make that person stand,
however, the person was not responding, hence, there was
further doubt in the minds of PW 4 Kamble and PW 1 Chavan
The accused persons were then taken to the Police Station in
a rickshaw. They narrated the incident to PW 17 PSI Sapkal
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and PI Patil. Then PW 4 Kamble, PW 1 Chavan, PW 17 PSI
Sapkal along with accused Nos. 1 and 2 came back to the
spot where the car was parked. They tried to make the
person in the car stand but the person was not responding.
Meanwhile, police mobile van of Powai-1 was called by giving
a call on the phone. PW 7 ASI Shinde was on duty on the
mobile van. The person sitting beneath the rear seat who
was later identified as Chandrabahadur was taken to the
hospital. The Doctor declared him as dead before admission.
On inquiry with the accused persons, they disclosed that the
person was known to them as he was residing in their area.
7. PW 17 PSI Sapkal was on night duty in the night
between 5.2.2007 and 6.2.2007. He has stated that at about
2.30 a.m., two constables brought two persons to the police
station. They were informed that two persons were
travelling in a Maruti car. The number of the Maruti car was
MH-01/M-8450. PSI Sapkal immediately went to the spot
where the Maruti car was parked. He saw one person sitting
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under the seat in the vehicle. He tried to wake up that man
who was found sitting below the seat in the vehicle but the
person did not wake up. On inquiry with accused Nos. 1 and
2, they told PSI Sapkal that that person had consumed liquor.
He then sent that person in a mobile van to Rajawadi
Hospital.
8.
PW 7 ASI Shinde was attached to Pawai Police Station
at the relevant time. He was on night duty in the night
between 5.2.2007 and 6.2.2007. ASI Shinde has stated that
on 6.2.2007 at about 2.40 a.m., a message was received in
the control room. Pursuant to the message, ASI Shinde along
with wireless staff went to the spot where the Maruti vehicle
bearing No. MH-01/8450 was found parked. On the backside
of the driver seat, they saw one person lying there without
any movement. Two persons were standing outside the
vehicle. Those two persons were apprehended by the police.
These two persons were accused Nos. 1 and 2. With the help
of staff, they took out the person from the vehicle and kept
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him on the stretcher. Then they took him to Rajawadi
Hospital. Doctor examined the person and declared him as
dead before admission. PW 7 ASI Shinde has stated that he
saw mark of injuries around the neck of the deceased.
9. Thus, the evidence of PW 1 Police Naik Chavan, PW 4
Police Constable Kamble, PW 7 ASI Shinde and PW 17 PSI
Sapkal establishes that accused Nos. 1 and 2 were found in
the same car in which the dead body of Chandrabahadur was
found. Both the accused gave false explanation in relation to
the deceased. They stated that the deceased was found
sitting below the rear seat of the car because he was in
heavily intoxicated state. They further stated that the
deceased was not making any movement because he was
under the influence of drink. Thus, though Chandrabahadur
was dead, the accused persons tried to give a false
explanation about Chandrabahadur. They tried to project
that Chandrabahadur was alive whereas in fact
Chandrabahadur was already dead on account of
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strangulation. The sequence of events coupled with the false
explanation given by accused Nos. 1 and 2 clearly shows the
complicity of accused Nos. 1 and 2 in the offence.
10. In addition to the evidence of PW 1 Police Naik Chavan,
PW 4 Police Constable Kamble, PW 7 ASI Shinde and PW 17
PSI Sapkal, the prosecution is relying on the evidence of PW
10 panch witness Sonkamble in relation to accused Nos. 1
and 2. PW 10 panch witness Sonkamble has stated that on
6.2.2007 at about 5.00 a.m., he was called to the police
station. The clothes of accused Nos. 1 and 2 came to be
seized under panchnama Exh. 28. These clothes were sent
to C.A. As per C.A. report Exh. 44, the clothes of accused No.
1 i.e Tee shirt and pant were found stained with blood of 'B'
group. The shirt of the deceased was also found stained with
blood of 'B' group. From this, it can safely be inferred that
the blood group of the deceased was 'B'. Thus, finding of
blood of 'B' group on the clothes of accused No. 1 is a further
incriminating factor against accused No. 1. As far as accused
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No. 2 is concerned, his clothes were found stained with
human blood. In this connection, we may usefully refer to
the decision of the Supreme Court in the case Gura Singh
Vs. State of Rajasthan1, wherein it has been observed as
under :
" In view of the authoritative pronouncement of this
Court in Teja Ram Case (1999) 3 SCC 507) we do not
find any substance in the submissions of the learned
Counsel for the appellant that in the absence of the report
regarding the 'origin of the blood, the trial Court could
not have convicted the accused. The Serologist &
Chemical Examiner has found that the chadar
seized in consequence of the disclosure statement
made by the appellant was stained with human blood.
As with lapse of time the classification of the blood could
not be determined, no bonus is conferred upon the
accused to claim any benefit on the strength of such a
belated and stale argument. The trial Court as well as
the High Court were, therefore, justified in holding the
circumstance as proved beyond doubt against the
appellant."
Similar view has been taken by the Supreme Court in
the cases of R. Shaji Vs. State of Kerala2 and Molai &
Anr. Vs State of Madhya Pradesh.3.
1 (2001) 2 SCC 205
2 (2013) 14 SCC 266
3 1999(9) SCC 581
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11. It is pertinent to note that both the accused have not
given any explanation for the presence of blood on their
clothes. It is pertinent to note that none of the accused
persons had any injury on their person at the time of arrest
to claim that the blood on the clothes belonged to them. Nor
any explanation was furnished by any of these two accused
persons for presence of blood stains on their clothes. Thus,
unexplained presence of bloodstains on the clothes of
accused Nos. 1 and 2 is a strong incriminating circumstance
against them.
12. As far as accused No. 3 is concerned, the prosecution
has relied on the circumstances of motive, recovery of rope
and the evidence of PW 6 Ramesh which shows that he took
the car i.e Maruti Esteem car bearing No. 8450 from him on
the day of the incident. On the aspect of motive, the
prosecution has examined PW 18 Ganga. Ganga has stated
that accused No. 3 Jaharsing was residing adjacent to her
house along with his wife Laxmibai and children. Ganga also
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knew accused Nos. 1 and 2 as they used to frequently visit
the house of accused No. 3. The wife of accused No. 3 was
involved in illicit relationship with some other person.
Ganga has specifically stated that there was illicit
relationship between the deceased Chandrabahadur and the
wife of accused No. 3 and because of that, quarrel was going
on between accused No.3 and the deceased. On 5.2.2007,
quarrel was going on between accused No. 3 and his wife.
The deceased was at the house of accused No. 3 that day.
This shows the motive for accused No. 3 to commit the
crime.
13. Thereafter, Accused No. 3 asked PW 6 Ramesh for his
vehicle which was Maruti Esteem car bearing No. 8450. PW
6 Ramesh gave him the vehicle. PW 6 Ramesh has
categorically stated that on 5.2.2007, accused No. 3 had
taken his Maruti Esteem car bearing No. 8450. Accused No.
3 told him that he wanted the vehicle for just 1-2 hours as he
wanted to go to the airport, however, accused No. 3 did not
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come back with the vehicle. It is pertinent to note that the
dead body of Chandrabahadur was found in the very same
vehicle. According to the prosecution, accused No. 3 was
also in the vehicle but as there was some problem with the
engine of the vehicle, the vehicle stalled near Parsi bungalow
at Pawai. Accused No. 3 then went to get another vehicle.
This part of the prosecution case is borne out by the
evidence of PW 14 Kadam and PW 16 Agarwal. PW 14
Kadam is a car mechanic. He has stated that he checked
Maruti vehicle bearing No. MH-01/M-8450 and he found that
there was problem in Delco, hence, the vehicle could not ply.
PW 16 Gaurav was the director of Larsons India. He had
white colour motor car bearing No. MH-06/T-4054. Accused
No. 3 was the driver of the car. Accused No. 3 was working
with him since last 7-8 years. PW 16 Gaurav has stated that
on 6.2.2007 at about 12 midnight, the accused had taken the
above car with him and brought it back at about 4.00 a.m.
14. In addition to the above evidence, the prosecution has
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relied on the evidence of recovery of nylon rope at the
instance of accused No. 3. PW 2 panch witness Baburao has
deposed about it. The said nylon rope is at Article 15. This
rope was recovered at the instance of accused No.3 from his
house. The rope was sent to C.A. As per C.A. report, human
blood was found on the nylon rope. It is pertinent to note
that Dr. Jawale has stated that injury No. 6 which was
sustained by the deceased is possible due to the rope Article
15 and this injury was sufficient to cause the death of the
deceased in ordinary course of nature.
15. One more circumstance against accused No.3 is that
the clothes on his person were seized at the time of his
arrest. PW 13 Rajesh has deposed about this. These
clothes were sent to C.A. As per C.A. report Exh. 44, the
clothes of accused No. 3 were found stained with blood of 'B'
group. As stated earlier, the shirt of the deceased was found
stained with blood of 'B' group from which it can be inferred
that the blood group of the deceased was 'B'. Hence,
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finding of blood of 'B' group on the clothes of accused No. 3
is a strong incriminating circumstance especially in view of
the fact that no explanation has been furnished by accused
No. 3 for presence of blood of 'B' group on his clothes.
16. It is the prosecution case that the accused persons with
common intention caused the death of Chandrabahadur by
assaulting him
and then strangulating him. This is
corroborated to some extent by the medical evidence. PW
12 Dr. Jawale performed the postmortem on the dead body
of Chandrabahadur. On external examination, he found 10
injuries which are as under:-
1. Abraded contusion left maxilla 3 x 2 c.m.;
2. Abraded contusion left forehead 5 x 3 c.m.;
3. Contusion right forehead 4 x 3 c.m.;
4. Contusion right cheek 4 x 3 c.m.;
5. Linear contusion lacerated wound Rt. maxilla, 3 in Nos. 2 x
1 x 1/4 each linear, horizontal E/o. dried blood stains over
surface and periphery.
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6. Neck shows abraded contusion type linear mark over neck
situated above thyroid cartilage, horizontal. On anterior,
left lateral and posterior aspects, there appears single
ligature mark but on right anterior lateral and right
posterior lateral area, three ligature marks seen but in
continuation with rest part of ligature. Total neck
circumference 37 cm and breadth 1 c.m. On cut section,
parchment paper appearance of sub-cutaneous tissue and
contusion of neck muscle, vessels beneath ligature mark
reddish oedematonuous irregular associated with
contusion at right upper neck above ligature 3 x 7 cm.
reddish irregular;
7. Abrasion right knee 2 x 2 c.m.
8. Abrasion right knee (just below 2 x 3 cm)
9. Abrasion contusion right shoulder superior aspects 3 x 7;
10. Abrasion left iliac crest 3 x 5 c.m.
On internal examination, Dr. Jawale found contusion at
left frontal portion of the head and right forehead. He also
found mesenteric contusions. According to Dr. Jawale, the
cause of death was due to strangulation with multiple
contusions.
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17. On going through the evidence adduced in this case,
we are of the opinion that the prosecution has proved
beyond reasonable doubt that all the three accused persons
are involved in the murder of Chandrabahadur. Thus, we
find no merit in the appeals. The appeals are dismissed.
18. We quantify legal fees to be paid by the High Court
Legal Services Committee to the appointed Advocate Mr.
A.G. Toraskar in each appeal at Rs. 5000/-.
[ SMT. ANUJA PRABHUDESSAI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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