Pappu @ Chandikaprasad S/O. ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 8332 Bom

                                 1
                                                            apeal53.17.odt

   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

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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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(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