Bablu @ Karim S/O Kamruddin Lalani vs State Of Maharashtra Thr. Pso ...
2017 Latest Caselaw 7776 Bom

                                      1                     Appeal519-06.odt        



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR



                     CRIMINAL APPEAL NO.519/2006


                                              ...


Bablu Alias Karim s/o Kamruddin
Lalani, Aged 29 years,
R/o Armori, District Gadchiroli.                  ..             APPELLANT



                               .. Versus ..


State of Maharashtra,
Through P.S.O. Armori,
Dist. Gadchiroli ( In Jail).                      ..          RESPONDENT



Mrs. S.P. Kulkarni, Advocate (Appointed) for Appellant.
Mr. V.A. Thakre, Additional Public Prosecutor for Respondent.

                               ....


CORAM         : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON   : September 27, 2017
PRONOUNCED ON : October 4, 2017.




JUDGMENT (per Manish Pitale, J. )

The appellant has been held guilty and convicted for

offence under Section 302 of the Indian Penal Code (IPC) for

2 Appeal519-06.odt

causing the death of one Meghraj Nakade by dashing him with

his mini truck, which he was driving on 09.05.1994 on the road

leading to Gadchiroli at Armori. The allegation is that the

appellant along with accused No.2 Trilok came from behind in a

mini truck being driven by the appellant and intentionally gave

a dash from the back side to the aforesaid Meghraj Nakade, as

a result of which he fell down. Thereafter, the appellant

allegedly stopped the mini truck at a short distance and

reversed the same to run over the said Meghraj Nakade, due to

which the said victim died of serious injuries. It was alleged

that the appellant has committed the aforesaid act because

there was a hot exchange of words between him and the

deceased on the previous day i.e. 08.05.1994, due to a dispute

regarding non-payment of amount by the appellant to the

deceased for purchase of 150 quintals of paddy. It was stated

that the deceased was in need of the money because the

marriage of his daughter was fixed for 16.05.1994 and that the

appellant was not making the payment due to which the

aforesaid dispute had arisen.

2. As per the prosecution there were three eyewitnesses

to the aforesaid incident i.e. PW2 Keshao Kumbhare, PW11

Vishwanath and PW12 Bakaram. PW2 Keshao Kumbhare was

3 Appeal519-06.odt

taking morning walk on 09.05.1994 at about 5.30 a.m. when

he heard a sound of the said mini truck giving a dash to the

deceased and that upon the said mini truck coming to a halt

near the shop of one Salim welder, the appellant got down

from the side of the driver seat and that another person

alighted from the other side. PW2 saw the deceased lying face

down with serious bleeding injuries on the road. According to

the prosecution, PW11 Vishwanath and PW12 Bakaram were

the other two eyewitnesses who had gone to the nearby field

for easing themselves when the aforesaid incident took place.

These two witnesses have claimed that they saw the mini truck

driven by the appellant giving dash to the deceased and

reversing and running over the deceased. In their evidence, it

has come on record that PW11 Vishwanath was at a distance of

about 80 to 90 ft. and that PW12 Bakaram was at a distance of

about 125 ft. from the place of the incident. These witnesses

also claimed that the appellant and accused No.2 Trilok got

down from the mini truck and upon coming near the deceased,

who had fallen face down on the road, stated " Mar Gaya Sala".

It is relevant to mention here that PW2 Keshao, the other

eyewitness, did not state about the appellant having reversed

the mini truck to run over the deceased or that he and the

accused no.2 got down from the mini truck to utter the

4 Appeal519-06.odt

aforesaid words. PW2 Keshao also did not state anything about

the presence of PW11 and PW12, the other two eyewitnesses

to the incident.

3. PW3 Omprakash Nakade, younger brother of the

deceased submitted the complaint leading to registration of

first information report (FIR). The FIR was registered under

Section 304-A of the IPC against the appellant for having

caused the death of the victim by rash and negligent act. The

investigation was initially undertaken by PW8 Chagan Wakade,

who recorded the statements of witnesses and arrested the

appellant. The investigation was later handed over to the

Criminal Investigation Department (CID) and the papers

relating to the investigation were handed over on 23.06.1994

by PW8 Chagan Wakade to PW15 Gajanan Shinde, who took up

the investigation on behalf of the CID. The said PW15 prepared

the sketch of the spot of the incident on 28.06.1994.

4. Upon further investigation by PW15 Gajanan Shinde,

accused No.2 Trilok was also arrested and on 07.07.1994 the

said PW15 sent a letter to the Superintendent of Police, CID

Crime, Nagpur Range for guidance. On 08.07.1994 the

Superintendent of Police, CID Crime, sent an order to PW15 to

5 Appeal519-06.odt

add the offence under Section 302 of the IPC against the

accused. Accordingly, on 12.12.1994 charge sheet was

submitted before the Court against both the accused for

offence under Section 302 read with 34 of the IPC.

5. In the trial before the Sessions Court, the prosecution

examined 17 witnesses, including the aforesaid three

eyewitnesses to the incident. The case of the prosecution was

that there was altercation and hot exchange of words between

the appellant and the deceased on 08.05.1994 due to the

dispute regarding outstanding payment for purchase of paddy

and that this led to the appellant intentionally hitting the

deceased in the morning on 09.05.1994 when the deceased

was taking morning walk, by deliberately driving the mini truck

from the tar road to the kachha road where the deceased was

walking, so as to kill him.

6. The Sessions Court found that the evidence of the

three eyewitnesses proved the manner in which the incident

had happened and that the intensity with which the deceased

was hit by the mini truck, demonstrated that the appellant

intentionally drove the mini truck into the deceased to ensure

his death. But, the Sessions Court found that there was not

6 Appeal519-06.odt

enough evidence against the accused no.2 Trilok and

accordingly, he was acquitted. The Sessions Court convicted

only the appellant under Section 302 of the IPC and sentenced

him to suffer imprisonment for life.

7. Mrs. S.P. Kulkarni, learned Advocate appointed on

behalf of the appellant, submitted that there were glaring

contradictions in the evidence of the eyewitnesses and that the

presence of the appellant at the place of incident was not

established by the prosecution. It was submitted that the

version of the eyewitnesses was not believable and that the

appellant was not present at the spot of the incident on

09.05.1994. On this basis, the learned counsel appearing for

the appellant submitted that the impugned judgment and order

of the Sessions Court was not sustainable and that it deserved

to be set aside.

8. On the other hand, Mr. V.A. Thakre, learned

Additional Public Prosecutor appearing for the respondent-State

submitted that the evidence on record, particularly the

versions of the eyewitnesses, proved the manner in which the

incident occurred and that the appellant intentionally gave a

dash to the deceased with his mini truck, thereby committing

7 Appeal519-06.odt

offence under Section 302 of the IPC. He prayed that the

appeal be dismissed.

9. We have considered the arguments of the counsel for

the parties and we have perused the record of the case. In

order to examine as to the manner in which the incident took

place on 09.05.1994, it is essential that the evidence of the

three eyewitnesses i.e. PW2, PW11 and PW12 is examined in

detail. The evidence of PW2 Kesdhao shows that he was on his

morning walk when he saw the mini truck driven by the

appellant giving a dash to the deceased. This witness states

that the mini truck stopped at some distance and that the

appellant came out of the truck from the driver seat. He

further states that another person alighted from the other side

of the truck but he could not see who that other person was.

Thereafter PW2 gives details of the manner in which the body

of the deceased was lying, face down with profuse bleeding on

the road.

10. PW11 Vishwanath has stated in his evidence that he

was easing himself in nearby field at a distance of about 80 to

90 ft. when he saw the incident in question. He adds that the

appellant stopped the mini truck at a short distance and

8 Appeal519-06.odt

reversed so as to run over the deceased. He further stated

that the appellant along with accused No.2 Trilok got down

from the mini truck and upon coming near the body of the

deceased uttered the words "Mar Gaya Sala". A similar

account of the incident is given by PW12 Bakaram who claims

that he was also easing in the said field at a distance of about

125 ft. from the place of incident. These two eyewitnesses i.e.

PW11 and PW12 have added a marked improvement over what

has been stated by the other eyewitness PW2 Keshao. It is also

relevant that PW2 Keshao has not stated anything about the

presence of PW11 and PW12 near the spot of the incident. It is

also relevant that the statement of PW2 Keshao was recorded

by the Police on 09.05.1994 and the statements of PW11 and

PW12 were recorded on 13.05.1994 and 14.05.1994. Thus,

while the statement of PW2 Kesdhao was recorded promptly by

the Police, the statements of PW11 and PW12 were recorded

after four and five days of the incident by the Police. The

version of PW2 Keshao on the one hand and the versions of

PW11 Vishwanath and PW12 Bakaram on the other hand show

contradictions and material differences.

11. In this situation, the medical evidence becomes

relevant because if the versions of PW11 Vishwanath and PW12

9 Appeal519-06.odt

Bakaram were a correct description of the incident, there

would be injuries of tyre marks, as these witnesses had

claimed that the appellant had reversed the mini truck and run

over the deceased. The evidence of PW17 Dr. Vasant Pillare,

the Doctor who conducted the post mortem, shows extensive

external and internal injuries, including severe injuries to vital

parts of the body of the deceased. But, in cross-examination

the said witness stated as follows:-

"It is true that all such injuries can be caused if a person falls down facing towards down side due to impact of the vehicle from the backside. From the fact that there was no crush injury and tyre marks on the dead body, in my opinion there is no possibility of deceased Meghraj being run over by the vehicle."

Thus, it is clear that there were no injuries on the body of the

deceased showing that he was run over by the mini truck.

This renders doubtful the versions of PW11 Vishwanath and

PW12 Bakaram. Apart from this, it appears doubtful that the

said witnesses would have actually seen the appellant and

accused no.2 alighting from the mini truck and uttering the

aforesaid words, from a distance of 90 ft. and 125 ft. On the

other hand, the medical evidence appears to corroborate the

10 Appeal519-06.odt

version of PW2 Keshao, who has stated that the mini truck

driven by the appellant gave a dash to the deceased from

behind. There is no mention by the said witness regarding the

appellant having reversed the truck and run over the body of

the deceased.

12. The prosecution has relied upon the evidence of PW5

Prakash, PW9 Shalikram and PW10 Govinda for proving the

theory that there was altercation between the appellant and

the deceased on the day previous to the date of the incident on

the question of non-payment of amount by the appellant to the

deceased for purchase of paddy, which led to the appellant

intentionally giving a dash to the deceased with his mini truck

in the morning on 09.05.1994, thereby committing an offence

under Section 302 of the IPC. A perusal of the evidence of

these three witnesses shows that there was a certain hot

exchange of words on the previous day between the appellant

and the deceased, but the statement of PW10 Govinda was

recorded by the Police on 01.07.1994, which was after a long

delay. This witness claimed to be a tea seller who had gone to

supply tea to the shop of the deceased, when he allegedly saw

the altercation and hot exchange of words between the

appellant and the deceased. The said delay in recording of the

11 Appeal519-06.odt

statement of PW10 Govinda renders his version unreliable.

Delay in recording of statements of witnesses has been held to

be fatal because it raises a doubt that the investigator has

decided upon a direction of the investigation and thereupon

put up witnesses to support its case. It has been held by the

Hon'ble Supreme Court in the case of Shahid Khan .vs. State

of Rajasthan- (2016) 4 Supreme Court Cases 96, in the

context of delay of 3 days in recording statements of

eyewitnesses, that such delay may suggest that the

investigating officer was deliberately marking time with a view

to decide about the shape to be given to the case and the

eyewitness to be introduced. Applying the said position of law

to the facts of the present case, it is clear that PW11 and PW12

are wholly unreliable witnesses.

13. Even if evidence of PW5 Prakash and PW9 Shalikram

(the younger brother of the deceased) in respect of the

aforesaid alleged altercation between the appellant and the

deceased, is believed, all that it shows is that there was such

an incident of hot exchange of words that took place between

them. But, it would be stretching the said alleged incident of

hot exchange of words, a bit too far by concluding that this led

to the appellant intentionally giving a dash with his mini truck

12 Appeal519-06.odt

to the deceased on 09.05.1994. If such an incident had

occurred in a short span of time from the said alleged

altercation or hot exchange of words, it could have been

gathered that the appellant had intentionally committed the

aforesaid act. If the evidence of PW2 Keshao along with the

evidence of PW17 Dr.Vasant Pillare is appreciated in this

context, it appears that the said incident and the death of the

victim was accidental rather than homicidal in nature.

14. The evidence of the other eyewitnesses PW11

Vishwanath and PW12 Bakaram appears to be unreliable, but,

the evidence of the eyewitness PW2 Keshao appears to be

truthful, giving an accurate description of the incident that

occurred in the morning on 09.05.1994. Therefore, the

evidence on record establishes the presence of the appellant

at the spot of the incident as driving the mini truck which

dashed the deceased from behind. The nature of injuries do

not support the theory of the prosecution that the appellant

reversed the mini truck over the body of the deceased to

intentionally cause his death. The material on record points

towards rash and negligent act on the part of the appellant in

causing the death of the victim Megharaj Nakade.

13 Appeal519-06.odt

15. Thus, the Sessions Court was not justified in holding

that the appellant intentionally caused the death of the victim.

The Sessions Court erred in relying upon the evidence of

alleged eyewitnesses PW11 Vishwanath and PW12 Bakaram.

The medical evidence on record is also not appreciated in

correct perspective by the Sessions Court. On a proper

appreciation of the evidence on record, it is clear that the

appellant could be held guilty only under Section 304-A of the

IPC for causing the death by rash and negligent act and that

the FIR initially registered under the said provision was correct.

16. Accordingly, we hold that the conviction and

sentence imposed upon the appellant by the Sessions Court by

the impugned judgment and order is unsustainable and we set

aside the same. Instead, the appellant is held guilty for having

committed offence under Section 304-A of the IPC and we

sentence him to suffer imprisonment for a period of 2 (two)

years.

17. The record shows that the appellant was arrested on

09.05.1994 and released on bail on 17.05.1994. Thereafter, he

was again arrested on 12.09.1994 when the offence under

Section 302 of the IPC was added. He was released on bail on

14 Appeal519-06.odt

08.12.1994, during the pendency of the trial. Upon the

Sessions Court pronouncing the impugned judgment and order

on 07.08.2006, the appellant was again arrested. He filed the

instant appeal before this Court, but, his bail application was

rejected by this Court on 26.02.2008. The appellant challenged

the said order before the Hon'ble Supreme Court and by order

dated 28.08.2008 the Hon'ble Supreme Court passed an order

granting bail to the appellant and he was released on

12.09.2008. Thus, during the period of investigation, trial and

pendency of the instant appeal before this Court, the appellant

has already undergone incarceration for a period of about 2 ½

years. In these circumstances, while partly allowing this

appeal in the above terms, we hold that the appellant has

already served more than the quantum of sentence imposed

by us and that therefore, he need not be taken into custody for

suffering the sentence of two years imprisonment imposed by

us.

18. Accordingly, the appeal is partly allowed, the

impugned judgment and order of the Sessions Court is set

aside and the appellant is convicted under Section 304-A of the

IPC.

15 Appeal519-06.odt

19. The fees of the learned counsel appointed for the

appellant are quantified at Rs.5,000/- (Rs. Five Thousand only).

      (Manish Pitale, J. )              (R.K. Deshpande, J.)
                                 ...


halwai/p.s.