Shaktisingh Deepaksingh Dudhani vs The State Of Maharashtra
2018 Latest Caselaw 196 Bom

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BDPSPS
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE  JURISDICTION  
                           CRIMINAL APPEAL NO.930 OF 2014
                                       WITH
                        CRIMINAL APPLICATION NO.980 OF 2017
                                        IN
                           CRIMINAL APPEAL NO.930 OF 2014

         Shaktisingh Deepaksingh Dudhani                 )          
         Age: about 24 yrs, Occ: Scrap Dealer            )
         R/at 429, Dias Plot, Gultekadi, Pune            )        ..... Appellant.
                    V/s
         The State of Maharashtra                        )      ..... Respondent.

         Mr. Debajyoti Talukdar for Appellant.
         Mrs.  M.H. Mhatre, APP for Respondent - State.

                                     CORAM:  B. R. GAVAI  & 
                                                    B. P. COLABAWALLA,  JJ.

                                     DATE:      9th JANUARY, 2018

         ORAL JUDGMENT:  (Per B.R. Gavai, J.)  

         1]     Appeal takes exception to the Judgment and Order passed by the 

learned Additional Sessions Judge in Sessions Case No.694 of 2011,

dated 30/10/2014, thereby convicting the Appellant for the offence

punishable under Section 302 of the Indian Penal Code and sentencing

him to suffer imprisonment for life and to pay fine of Rs 5,000/- and

in default, to suffer R.I. for three months. Appellant has been further

convicted for the offence punishable under Section 188 of IPC and

sentenced to suffer S.I. for one month and to pay fine of Rs 200/- and

in default, to suffer S.I. for 15 days.

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2] Prosecution case, as could be gathered from the material placed

on record is thus:

3] Deceased Amol is son of the first informant Smt Ratan Kamble

(P.W.1), who was residing alongwith the deceased and her husband

Sunil at dias plot area. Appellant as well as the other accused and

juvenile in conflict with law, Bhaktisingh and Babu Jogur were also

residing in the same area. It is the prosecution case that there was

lover affair between deceased Amol and sister of the Appellant

Shaktisingh, viz. Raveena. It is the further prosecution case that the

Appellant did not approve of the same. It is the further prosecution

case that on the date of incident i.e on 12/07/2011, deceased Amol

came to his cousin viz. Pappu Jambu @ Mohan Gaikwad, who was

also residing in the nearby locality and requested him to come to play

cricket match. Accordingly, Pappu (P.W.2) and other persons viz.

Sagar Gaikwad, deceased Amol, Bunty, Bubbly, Abhi Londhe, Swapnil,

Tushar and Sonya Pol went to play ground of Katariya High School,

Gultekadi. At about 4 to 4.30 pm, when they were playing cricket,

accused Shaktisingh alongwith his brother Bhaktisingh came there.

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Accused Shaktisingh called Amol. After deceased and Appellant went

to one side near Banyan Tree, Pappu (P.W.2) heard the voice of Amol

"Ayee Ga". When Pappu (P.W.2) went to the place from where shouts

were coming, they saw that the Appellant and his brother and accused

No.2 - Babu Jogur, were assaulting the deceased with wooden log.

They also assaulted the deceased with beer bottle. On Sagar (P.W.6)

asking the Appellant, as to why he was assaulting the deceased, the

Appellant replied, as to what he would do if somebody keeps relations

with his sister. It is the further prosecution case that the Appellant

had picked up a stone lying there and was about to inflict a blow of

stone on the head of Amol. At that time, Sagar Gaikwad pushed the

accused Shaktisingh. In the meanwhile, some other persons came

around and the accused ran away from the spot. Pappu Gaikwad and

his friends took Amol to Dr. Chandan's hospital. However, Dr.

Chandan (P.W.4) advised him to shift Amol to Sassoon Hospital. In

the meantime, Pappu (P.W.2) informed about the incident to Ratan

Kamble (P.W.1). Deceased Amol was taken to Sassoon Hospital and

admitted there. He died at about 11.15 pm, same night.

4] On the basis of the oral report of Ratan Kamble (P.W.1), First

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Information Report came to be lodged below Exhibit 61-A. On the

basis of the First Information Report, investigation was carried out. At

the conclusion of the investigation, charge-sheet came to be filed in

the Court of the learned J.M.F.C., Court No.8, Pune against the three

accused, including the Appellant. Since the case was exclusively

triable by the Sessions Court, the same was committed to the learned

Sessions Judge. The charge came to be framed against the Appellant

and Babu Jogur for the offence punishable under Section 302 read

with Section 34 and 188 IPC vide Exhibit-28. Since Bhaktisingh was

juvenile in conflict with law, he was proceeded separately. During

trial, accused Babu Jogur raised a plea of juvenility. In the inquiry

proceedings, his claim was found to be correct and, as such, his name

was deleted from the case and investigation officer was directed to file

separate proceedings against him before the appropriate forum.

5] During trial, prosecution examined six witnesses, apart from

producing other documentary evidence. At the conclusion of the trial,

the learned Trial Judge held that prosecution has proved its case

against the accused and as such, passed an order of conviction and

sentence, as aforesaid. Being aggrieved thereby, the present appeal.

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6] Mr. Talukdar, learned Counsel for the Appellant, submitted that

the Judgment and Order passed by the learned Trial Judge is not at all

sustainable in law. He submits that, though there were many

independent witnesses available, prosecution for the reasons best

known to it, has only examined Pappu (P.W.2), who is the cousin of

the deceased Amol. He submits that since evidence of Pappu (P.W.2)

is of interested witness, the same cannot be relied upon for convicting

the Appellant. He submits that, Sagar (P.W.6) has turned hostile and

as such, there is no reliable evidence to convict the Appellant.

Learned Counsel therefore submits that, the appeal deserves to be

allowed and the accused be acquitted of the charges levelled against

him.

7] In the alternative, learned Counsel for the Appellant submits

that, the prosecution has entirely failed to prove that the Appellant

had an intention to cause death of the deceased. Learned Counsel

submits that, in the absence of evidence to establish that the Appellant

had an intention to cause death of the deceased, conviction under

Section 302 is not maintainable and the case would fall under either

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of the parts of Section 304 of IPC.

8] Mrs. Mhatre, learned APP, vehemently opposes the Appellant.

She submits that merely because evidence of Pappu (P.W.2) is of

interested witness, that by itself cannot be a ground to discard his

testimony. She further submits that, evidence of Pappu (P.W.2) is

duly corroborated by the First Information Report and the evidence of

Ratan Kamble (P.W.1). She further submits that the death of Amol has

been caused due to brain haemorrhage , which was as a result of the

assault on the head of the deceased and as such, conviction has rightly

been done under section 302. Learned APP therefore pressed for

dismissal of the appeal.

9] With the assistance of learned APP and the learned Counsel for

the Appellant, we have scrutinized the entire evidence on record. The

prosecution case mainly rests on the evidence of Pappu (P.W.2).

Though prosecution has also examined Sagar (P.W.6), he had not

supported the prosecution case in its entirety and therefore was

declared hostile. Insofar as evidence of Ratan Kamble (P.W.1) is

concerned, she is not an eye witness. Report given by her is on the

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basis of information given to her by Pappu (P.W.2) and as such, her

evidence would not be of much assistance.

10] Evidence of Pappu (P.W.2) has been attempted to be assailed on

the ground, he being relative of the deceased, is an interested witness

and as such, could not be relied upon. By now, it is a settled principle

of law that, merely because the witness is an interested witness, that

by itself cannot be a ground for discarding his evidence. Only caution

that is required to be exercised is that the evidence of such witness has

to be scrutinized with greater caution and same can be relied only if it

is found to be cogent, trustworthy and reliable. In the light of this

principle, we have to examine the evidence of Pappu (P.W.2).

11] Perusal of evidence of Pappu (P.W.2) clearly reveals that, when

he and his other friends were playing cricket, Shaktisingh and

Bhaktisingh came there and called Amol. He was taken towards

Banyan Tree. While they were playing cricket, they heard voice of

Amol "Ayee Ga". Hence, he, Sonya Pol and Sagar Gaikwad went

towards Banyan Tree. They saw accused Shaktisingh assaulting

deceased Amol on his stomach, chest with wooden log. He also

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assaulted deceased with bracelet (Kada) in hand. Thereafter,

Shaktisingh gave wooden log to Bhaktisingh and Bhaktisingh was

assaulting Amol by wooden log. Accused Babu was assaulting Amol

by fists and kicks. He further states that, Shaktisingh also assaulted

deceased on his knee by beer bottles. Thereafter, in order to assault

Amol, Shaktisingh picked up a stone lying there and when he was

about to inflict a blow of stone on the head of Amol, Sagar pushed the

accused Shaktisingh. Thereafter, some boys came there and accused

Shaktisingh and his brother Bhaktisingh ran away from the spot. No

doubt, there are many omissions and contradictions in the evidence of

Pappu (P.W.2). However, insofar as the main incident of assault is

concerned, his evidence has remained unshattered. Apart from that, it

could also be seen that, though Sagar (P.W.6) has not supported the

prosecution case in its entirety, he has stated in his evidence that when

he, alongwith Pappu Gaikwad, Amol and others were playing cricket

at around 4 pm, Bhaktisingh, accused Babu Jogur had come there

alongwith 3 to 4 sardar boys. There was quarrel and boys started

running here and there. It could thus be seen that, evidence of Pappu

(P.W.2) regarding two boys coming on the spot and their quarrel

taking place, corroborated the evidence of Sagar (P.W.6).

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12] In that view of the matter, we are of the considered view that no

interference is warranted with the finding of the learned Trial Judge

that, it is the present Appellant who is the author of the crime of

causing death of the deceased Amol.

13] That leads us to the next question, as to whether conviction

under Section 302 needs to be maintained or altered to smaller

offence. From the evidence of Pappu (P.W.2) itself, it would reveal

that the Appellant had assaulted the deceased with a log and bracelet

(Kada) in his hand. Not only this, from the evidence led on behalf of

prosecution itself, it would reveal that the place where the incident

had taken place, was having wooden logs and broken pieces of beer

bottles. Even according to the prosecution, the log which was used by

the Appellant was having length of 1 ft. 4 inches and diameter of

15 cm. It could thus be seen that it is not even the case of the

prosecution that the Appellant had come on the spot of incident armed

with some weapon. Though we have relied upon the evidence of

Pappu (P.W.2) for coming to the conclusion that, it is on account of

assault made by the Appellant that the death of the deceased is

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caused, we find that the evidence given by him cannot be accepted to

be hundred percent truthful. The principle that falsus in uno falsus in

omnibus is not applicable in Indian Criminal Jurisprudence. The

possibility of Pappu (P.W.2) giving exaggerated version, cannot be

ruled out.

14] Apart from that, it could be seen from the evidence of Dr. Ajay

Taware (P.W.3) that external injuries which were found on the person

of the deceased were on non-vital parts. Though, cause of death is

brain haemorrhage, in the postmortem report, no fracture of skull is

found. Taking into consideration the weapon which is used in the

crime, nature of injuries, parts of the body on which injuries were

found, we are of the considered view that, it cannot be said that the

accused-Appellant had an intention to cause death of the deceased

Amol. It is quite possible that, enraged with the affair of the deceased

with his sister Raveena, the Appellant might have come to threaten the

deceased and teach him a lesson. In the scuffle, that took place, he

might have assaulted the deceased by picking up a wooden log and

pieces of beer bottle available there. It could be further seen that, as

already discussed hereinabove, that there is no external injury on the

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head of the deceased. We are therefore of the considered view that

possibility of the deceased receiving fatal injury during scuffle, cannot

be ruled out. However, from the material placed on record, it cannot

be said that the Appellant had an intention to cause death of the

deceased or such injury which would cause his death. In that view of

the matter, we find that the case would not fall under Section 302 but

it would fall under Part-II of Section 304 of the Indian Penal Code.

15] In the result, we pass the following order:-

O R D E R

(i) Appeal is partly allowed. The order of conviction passed under Section 302 of IPC is altered to one under Part-II of Section 304 IPC. Accused is directed to suffer R.I. for ten years for the said offence.

(ii) Rest of the order of conviction including fine etc. is maintained.

(iii) In view disposal of the appeal, Criminal Application taken out therein does not survive and the same is also disposed of.

       (B. P. COLABAWALLA, J.  )                         (B. R. GAVAI, J. )