Bombay High Court
Digambar Vishwanath Pandhare vs The State Of Mahrashtra on 27 September, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.754 OF 2012.
Digambar Vishwanath Pandhare ]
age about 32 years, ] Appellant
r/at Rajawadi, Bhim Nagar, Tansa Pipe Line ] Original
Vidyavihar East ] Accused
Mumbai - 400 077 ] No.1
V/s.
The State of Maharashtra ] Respondent
at the instance of Tilak Nagar ] Original
Police Station ] Complainant
ALONGWITH
CRIMINAL APPEAL NO.364 OF 2014.
Kashinath @ Pintya Virendra Yadav ]
age about 31 years, ] Appellant
r/at Anand Nagar, RoomNo.85, Vikhroli ] Original
Parkside,Ghatkopar, ] Accused
Mumbai ] No.2
V/s.
The State of Maharashtra ] Respondent
at the instance of Tilak Nagar ] Original
Police Station ] Complainant.
Dr. Yug Mohit Chaudhary a/w Zeba Sikora for the
Appellant. In Criminal Appeal No.364 of 2014.
Mr. Shreeram Shirsat, for the appellant in
Criminal Appeal No.754 of 2012.
Mrs. G. P. Mulekar, APP in both appeals.
Page No.1 of 20
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CORAM : SMT. V. K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : 27 TH SEPTEMBER, 2017.
ORAL JUDGMENT : [Per: Dr. Shalini Phansalkar-Joshi, J.]
1. These two separate appeals are preferred by original
accused Nos. 1 and 2 being aggrieved by the judgment and order
dated 7th March, 2012 in Sessions Case No.98 of 2010, of
Additional Sessions Judge, Mumbai, at : Sewri, thereby convicting
them for the offence punishable under Section 302 read with 34
of the Indian Penal and sentencing them to undergo
imprisonment for life.
2. For the sake of convenience, appellants are referred to
in these appeals also, by their original nomenclature as accused
Nos. 1 & 2.
3. Brief facts of the appeals can be stated as follows :-
P.W.1 Dattaram Ovale, was working as Supervisor in
the business of Vasant Rajbhor and Ramesh Rajbhor. They were
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dealing in the business of preparing sheds of canvas. The
required material for preparing the said sheds like, the bamboos,
iron rods, thin rope etc. was stored in the godown behind Ram
Temple, Rajawadi, Ghatkopar. Accused Nos. 1 and 2 were working
in the said godown as watchmen alongwith original accused No.3
Ganesh, who is acquitted by the trial Court .P.W.3 Suresh, P.W.8
Rajesh and the deceased Bipin were working in the said godown
as labourers under P.W.1 Dattaram.
4. The incident giving rise to the case took place on
23.10.2009. On that day at about 7.30 p.m. P.W.1 Dattaram
brought the truck loaded with bamboos to the godown from
Godrej Company. The labourers in the godown including P.W.3
Suresh and deceased Bipin unloaded the bamboos in the godown.
Thereafter P.W.1 Dattaram gave Rs.350/- to the deceased and
accused No.3 Ganesh for preparing meals and told them that he
would be going to the office of his employer. At about 8.30 p.m., he
returned to the godown and saw that there was some skirmish
going on between the deceased and accused No.3. At that time
acquitted accused No.3 Ganesh was under the influence of alcohol.
P.W. 1 Dattaram told deceased Bipin and accused No.3 Ganesh to
take meals instead of skirmishing. However, they were not in a
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mood to listen. So he slapped Ganesh; deceased also gave a fist-
blow to Ganesh, as a result of which Ganesh sustained bleeding
injury to his nose. Accused No.1 came there and again there was
skirmishing between the deceased and accused No.1. In that
skirmishing, deceased assaulted accused No.1 by bamboo. P.W.1
Dattaram intervened and then told accused No.2 Pintya to take
him to his house in the his rickshaw. P.W.1 Dattaram reached in
his house at about 12.00' O clock in the night. Thereafter, at about
1.45 a.m., P.W.3 Suresh informed P.W.1 Dattaram on mobile phone
that accused Nos. 1 and 2 were assaulting the deceased. Then
alongwith his friend Nitin, on his motorcycle, P. W.1 Dattaram
went to the house of his brother Mahadeo Ovale. P.W.3 Suresh,
P.W.8 Rajesh and one Dinesh were at the house of his brother.
There, they told him that accused Nos. 1 and 2 were assaulting
the deceased. Hence alongwith them, he went to the godown and
found the deceased lying there in injured condition.
5. On enquiry, the deceased told P.W. 1 Dattaram that
accused Nos. 1 to 3 had assaulted him and they should not be left
free. There, P.W. 1 Dattaram found accused No.2 sleeping on the
heap of bamboos. P. W. 1 Dattaram, then took the deceased to
Rajawadi Hospital in the auto rickshaw. They reached there at
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about 3.45 a.m. While P.W.1 Dattaram was getting the case
papers prepared, in order to admit the deceased in the hospital,
deceased succumbed to the injuries. On the same night complaint
(Exh.33) was lodged by P.W.3 Suresh and on his complaint C.R.
No.221 of 2009 came to be registered at Tilaknagar Police Station.
6. P. W.4 PSI Kadam, then went to Rajawadi Hospital and
conducted inquest panchnama (Exh.15) and sent the dead body
for postmortem. P.W.2 Dr. Bagul, found as many as 35 injuries on
the body of the deceased and opined that the cause of death was
cumulative effect of all these injuries. P.W.4 PSI Kadam, then
seized the blood stained clothes of the deceased which were
produced by P.W.3 Suresh, under panchnama (Exh.14) and
recorded his statement. P.W.3 Suresh also showed the spot of
incident and accordingly scene of offence panchnama was made
vide Exh.36. From the spot, two bamboo sticks with blood stains
thereon were seized under the spot panchnama. Accused Nos. 1 &
2 were arrested on the same day. Their blood stained clothes
were seized under panchnama (Exh.34).
7. Further investigation of the case was taken over by
P.W. 5 PI Bade. He has sent seized articles to Chemical Analyzer.
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The Chemical Analyzer's report is produced at Exh.39. Further to
completion of investigation, chargesheet was filed in the Court
against all the three accused.
8. On committal of the case to the Sessions Court, the
trial Court framed charge against accused vide Exh.2. The charge
was read over and explained to the accused. The accused pleaded
not guilty and claimed trial, raising the defence of denial and false
implication.
9. In support of its case, prosecution examined in all 8
witnesses and on appreciation of their evidence, trial Court was
pleased to convict the accused Nos. 1 & 2 for the offence
punishable under Section 302 read with 34 of the Indian Penal
Code and acquit accused No.3 Ganesh on benefit of doubt.
10. In these appeals we have heard learned counsels Mr.
Yug Mohit Choudhary and Mr. Shreeram Shirsat, who have
challenged the impugned judgment of the trial Court. We have also
heard learned APP Mrs. G.P. Mulekar, who has supported the
same.
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11. According to learned counsels for both the appellants,
the evidence on record, in the present case, is not consistent,
reliable and cogent, proving the guilt of the accused beyond
reasonable doubt. It is submitted that there are glaring
discrepancies in the information of the incident noted in the
E.P.R. and F.I.R. In the E.P.R., case of accidental injuries is made
out; whereas the case now which is tried to be put up is that of
homicidal death.
12. In the alternate, it is submitted that the prosecution
case, even if held to be proved, it clearly falls under Exception 4
to section 300 of IPC, therefore the accused can at the most be
liable for conviction under Part I or Part II of Section 304 of IPC.
13. Per contra, learned APP has pointed out the extent
and nature of the injuries found on the dead body of the deceased
to rule out the plea of the defence that the offence is falling under
section 304 Part I or II of IPC.
14. In the light of these rival submissions, when we
proceed to appreciate the evidence on record, we find that there is
evidence of two eye witnesses namely P.W.3 Suresh and P.W./8
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Rajesh, proving the incident of the assault on the deceased at the
hands of accused Nos. 1 and 2. The evidence of P.W.1 Dattaram,
clearly goes to prove that accused were very much present in the
godown alongwith the deceased when he left the godown. Even
the work of unloading truck, filled with bamboos which he has
brought to the godown at 7.30 p.m. was also complete. He has
witnessed some skirmishes between the deceased and the
accused Nos.1 and 3, when he had come to godown again at 8.30
p.m. Thereafter he has left to his house. In the same night at
about 1.45 a.m., P.W. 3 Suresh informed him about accused Nos. 1
and 2 assaulting the deceased. Therefore, he came to the godown
and then from there he took the deceased in injured condition to
the hospital. At that time also, he noted the presence of accused
persons at the godown.
15. In this backdrop, if we see the evidence of P.W.3
Suresh, it goes to prove that on that night, they were present in
the godown, deceased cooked the food for them. Then P.W.3
Sanjay and P.W.8 Rajesh took the meals and went to sleep in the
cabin of the truck. At about 1.30 a.m. P.W.3 Sanjay and P.W.8
Rajesh woke up on hearing the abuses and saw that accused Nos .
1 and 2 were abusing the deceased and deceased was also abusing
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them. Then accused Nos. 1 and 2 took out two bamboos from the
heap of the bamboos. They started beating deceased on his back,
buttocks and head. P.W.3 Sanjay and P.W.5 Rajesh were
frightened. They alighted from the truck. Then all of them went
on the road near Ram Mandir. P.W. 3 Sanjay informed about this
incident to P.W.1 Dattaram on his mobile phone. Thereafter, P.W.1
Dattaram came with his friend on the motorcycle and then
injured was taken to the hospital. Then police came to the hospital
and recorded his complaint.
16. This evidence of P.W.3 Suresh is getting complete
support and corroboration from the evidence of P.W.8 Rajesh, who
has also deposed that after the meal was taken, he and Sanjay
slept in the cabin of the truck. At about 1.30 a.m. they heard
sound of quarrel. Hence they woke up and found the accused Nos.
1 and 2 giving abuses to deceased. The deceased was also giving
abuses to them. Thereafter accused Nos. 1 and 2 picked up
bamboos lying nearby and started assaulting the deceased with
force on head, back and limbs etc. The deceased fell down and
starting shouting. According to his evidence, they could not rush
to the rescue of the deceased as accused Nos. 1 and 2 had
bamboos in their hands, therefore, they left that place out of fear.
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P.W.3 Suresh thereafter made a phone call to P.W.1 Dattaram on
his mobile, then P.W.1 Dattaram came and deceased was taken to
the hospital in injured condition.
17. Both these witnesses are cross examined at length.
However, nothing worthwhile is elicited in their cross-
examination to disbelieve them in any way. Neither their
presence at the time of incident can be disputed nor any enmity is
alleged on their part against accused so as to attract the defence
of false implication. Their evidence is also supported and
corroborated from the evidence of P.W.1 Dattaram, who has
rushed to the spot and was informed about the incident.
18. If at all, any further corroboration is necessary to
this ocular evidence, then it is also coming from the F.I.R. Exh.33
which is lodged immediately after the incident and on the same
night the offence was registered.
19. Further corroboration to this evidence is coming from
medical evidence of P.W.2 Dr. Bagul, who has conducted
postmortem and found as many as 35 injuries all over the body of
the deceased and with internal damage and according him the
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cause of the death was cumulative effect of all these injuries.
20. In our considered opinion, this ocular and medical
evidence is more than sufficient to prove the guilt of the accused.
Though the prosecution has placed reliance on the oral dying
declaration of the deceased made to P.W.1 Dattaram, implicating
these accused, for the sake of argument, even if that dying
declaration is excluded from the consideration as it implicates
accused No.3 also; whereas the evidence of two eye witnesses
namely P.W.3 Suresh and P.W.8 Rajesh does not implicate
accused No. 3, hence trial Court had also not placed reliance on it,
in our considered opinion, it does not make any difference to the
credibility of the prosecution case. We are even not considering
the other circumstantial evidence like the seizure of the clothes of
deceased and accused alongwith the Chemical Analyzer's report
which is "inconclusive" as to the results of the blood grouping.
Therefore, even if this circumstantial evidence is not considered,
the ocular and medical evidence, in our opinion, is more than
sufficient to prove that it was accused Nos. 1 and 2 who had
assaulted the deceased mercilessly, which has resulted into his
death.
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21. Much submission is however, advanced by learned
counsel for accused, on the point that in the E.P.R., it is stated
that the cause of injuries was accidental. According to learned
counsel for accused, if it was P.W.1 Dattaram who has taken the
deceased to the hospital and if he was already having knowledge,
either on the basis of the information given to him by P.W.3
Suresh or on the basis of oral dying declaration made by the
deceased, that it was accused, who had assaulted the deceased,
then there is no explanation as to how in the E.P.R., the cause of
injuries is attributed to the accident.
22. According to learned counsel for the appellant, E.P.R.
contains the information, given first in point of time, hence it
should be relied upon than the information given in the F.I.R. To
substantiate this submission, learned counsel for accused No.1
has relied upon the judgment of Apex Court, in the case of
Akoijam Ranbir Singh -vs- The Government of Manipur,
(1976) 3 SCC 465, and Din Dayal -vs- Raj Kumar Alias Raju
and others 1998 SCC (Cri), 892. We find that the facts of both
these decisions are different from the facts of the present case. In
the former decision, the trial Court has acquitted the accused
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giving them the benefit of doubt and one of the grounds for
extending such benefit was that in the F.I.R. the name of the
accused was not disclosed, though the evidence on record
showed that said name was already disclosed to the informant. In
the background, it was observed by the Apex Court that :-
"The Sessions Judge, cannot, therefore, be said to be
unreasonable in taking the view that if the name of
the appellant had really been disclosed and
informant knew it, he would have mentioned it to
Ibotan Singh and it would have been reflected in the
F.I.R."
23. Thus the view was already taken by the Sessions
Court in the said case in the conspectus of the facts of the said
case and the Apex Court found that such view cannot be called as
unreasonable, in the backdrop of facts of that case.
24. In the second decision also, while rejecting an appeal
against acquittal, the Apex Court did find any reason for
interference as one of the circumstances on which High Court has
relied upon while acquitting the appellant was that witness Din
Dayal had accompanied the deceased to the hospital, but after
reaching there he did not disclose the name of the accused to the
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Police Constable who was on duty though he disclosed the other
facts regarding the incident.
25. In the present case, if one considers the evidence of
P.W.1 Dattaram, who has taken the deceased to the Hospital, it
reveals that after reaching to Rajawadi Hospital, while he was
getting the case papers prepared, deceased succumbed to the
injuries. He has denied the suggestion that P.W.3 Suresh and
P.W.8 Rajesh had taken the deceased to the hospital. According to
him, his friend Nitin was with him. P.W.3 Suresh had also not
stated that he had accompanied P.W.1 Dattaram to the hospital,
neither P.W.8 had stated so.
26. Therefore, it is not clear as to who has given the
information to the E.P.R Constable. The accused has not got the
said E.P.R. produced on record and proved it by issuing summons
to the defence witness. In such situation, it cannot be positively
concluded that the information reflected in the E.P.R. was given
by P.W.1 Dattaram and not by his friend Nitin
27. Moreover, even assuming that the E.P.R. mentions the
cause of injuries as accidental, having regard to the nature and
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extent of injuries which were found on the dead body, it can
hardly be accepted that it was a case of accidental death,
especially in the light of the evidence of two eye witnesses, whose
evidence is not at all shaken in any way. The next submission
that, these injuries can be possible due to fall of heap of bamboos
from the truck, also needs to be rejected outrightly because in the
first place the evidence of P.W.1 Dattaram proves that the entire
truck of the bamboos was unloaded at 7.30 p.m. only. Moreover,
the spot panchnama which was conducted immediately after the
incident goes to prove that all the bamboos were well arranged
and not at all scattered anywhere.
28. Secondly and most importantly, if the injuries were
accidental due to falling of bamboos, then injuries would have
been on one side of the body. However, in this case, the injuries
are found all over the body and the nature of injuries does not in
any way suggest or prove that they can be accidental. Therefore,
this contention needs to be rejected altogether.
29. This brings us to the alternate plea which is tried to be
put up by learned counsel for accused that this case falls under
Exception 4 to Section 300 of IPC. According to learned counsel
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for the appellant/accused, there is evidence of P.W.1 Dattaram
proving that he had seen skirmishes between accused No.3 and
deceased, when he had gone to godown at 8.30 p.m. He tried to
intervene, but it was of no use. He had earlier seen the deceased
giving fist-blows to accused Nos. 1 and 3. The deceased had
assaulted the accused No.1 by giving blow, P. W. Dattaram had
then intervened.
30. It is submitted that, even according to evidence of
P.W.3 Suresh, at the time of incident at about 1.30 a.m. he woke
up on hearing exchange of abuses between the deceased and
accused Nos. 1 and 2. P.W.8 Rajesh has also deposed about
accused Nos. 1 and 2 giving abuses to deceased and deceased also
abusing them, at the time of incident.
31. Thus, according to learned counsel for the accused,
here in the case admittedly there was no enmity between the
deceased and accused. The cause of the incident also appears to
be a sudden fight in the heat of passion upon a sudden quarrel.
The accused persons also cannot be said to have taken any undue
advantage or acted in cruel or unusual manner. It is urged that
assault was made by bamboos and the only intention appears to
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be of giving thrashing to the deceased. If the intention was to kill
him, then accused could have used the iron rods which were very
much lying there. According to learned counsel for accused,
merely because there are number of injuries, the benefit of
Exception 4 to section 300 cannot be denied to the accused. It is
urged that out of 35 injuries, only two injuries are on vital part of
the body and there is no evidence that any internal damage was
caused to the deceased on account of those injuries.
32. To substantiate this submission, learned counsel for
the accused has relied upon the judgment of Apex Court in case of
Sita Ram and others -vs- State of U.P. A.I.R. 1993 SC 350,
especially paragraph No.4 thereof, wherein it was noted that the
Doctor who has conducted postmortem found 28 injuries, out of
which only first three were lacerated injuries on the head and
four other wounds on the face. However, the Doctor had not found
any internal damage. Doctor also did not state that the injuries
were cumulatively sufficient in the ordinary course of nature to
cause death. There was no injury on any vital organ and hence it
was held that it shows that common object of unlawful assembly
was only to belabour the deceased. In these facts, hence benefit of
Exception 4 to section 300 was extended and the conviction of
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the accused was reduced to section 304 part II of IPC.
33. Learned counsel for accused No.2 has then relied upon
the judgment of Apex Court in case of Adu Ram -vs- Mukna and
ors, 2004 Cri. L.J.4674, wherein though there were 34 injuries
including fracture injuries, the conviction was reduced to the one
under Section 304 part I of IPC.
34. Learned counsel for accused No.2 has also relied upon
the judgment of Apex Court in case of Sukhbir Singh -vs- State
of Haryana, AIR (SC) 2002-01168, to submit that all vital
injuries resulting into death cannot be termed as cruel or
unusual for the purpose of not availing the benefit of Exception 4
of section 300.
35. Further he has relied upon the decision of Apex Court
in case of Harendar Singh -vs- State of Delhi 2016 SCC Online
Del. 1368; wherein it was held that the intention to cause death
can be gathered from the combination of circumstances and not
necessarily from the extent and the number of injuries.
36. In our considered opinion though it may be true that
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number of injuries may not always be a decisive factor, but in the
instant case when assault is made by bamboos that too by two
persons and it was not one or two blow but as good as 35 blows,
which has resulted into equal number of injuries and all over the
body, some of which were on the head and they had resulted into
internal damage also as can be seen from the medical evidence of
P.W.2 Dr. Bagul, it becomes difficult to accept that accused had
not acted in cruel or unusual manner. If the intention of the
accused was only to give thrashing or it was merely out of anger
in a sudden passion, then after inflicting few blows, they would
have stopped. However, finding the deceased unable to defend
himself, both the accused have inflicted several blows on him.
The assault was such that P.W.3 Suresh and P.W.8 Rajesh, though
were witnessing the assault, could not even dare to intervene out
of fear, As deposed by P.W.3 Suresh they were frightened and
went to call P.W.1 Dattaram. Hence, in our considered opinion,
in this case, the accused cannot be entitled to get benefit of
exception 4 to section 300 of IPC.
37. Thus, having gone through the entire evidence and
from the facts and circumstances on record, we are more than
satisfied that the judgment of trial Court convicting the accused
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for the offence punishable under Section 302 read with 34 of the
Indian Penal Code needs to be confirmed as no other view of the
matter can be taken. Hence both the appeals hold no merit,
therefore, stand dismissed.
[DR.SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K.TAHILRAMANI, J.]
