Santosh Shashikant Suryavanshi vs The State Of Maharashtra
2022 Latest Caselaw 8148 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.329 OF 2020

Santosh Shashikant Suryavanshi               .... Appellant
            Versus
The State of Maharashtra                     .... Respondent
                               -----
Mr. Salimuddin A. Shaikh, Advocate for the Appellant.
Smt. M.R. Tidke, APP for the Respondent-State.
                               -----

                                  CORAM :SARANG V. KOTWAL, J.

                                  DATE     : 22th AUGUST, 2022

ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 13.2.2020 passed by the Additional Sessions Judge, Thane in

Sessions Case No.42/2011. By the impugned judgment and order,

the appellant was convicted for the offence punishable under

Section 304 (Part-I) of IPC and was sentenced to suffer RI for five

years and to pay fine of Rs.20,000/- and in default to suffer SI for

six months. Out of the fine amount, Rs.15,000/- were directed to

be paid to the father of the deceased. The appellant was granted

set-off under Section 428 of Cr.P.C. The appellant was originally

charged for commission of offence punishable under Section 302 1 of 16

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read with 34 of IPC. He was acquitted of that charge. Along with

the appellant, two other accused namely Bhingu and Vikas had

faced the trial. Vikas had died during pendency of the trial.

Accused No.2 Bhingu was acquitted of all the charges.

2. The prosecution case is that the deceased Ramdhiraj

Gaund was seen talking with the appellant's sisters. The appellant

got angry. On 3.10.2010 at about 6.00 p.m. the accused called the

deceased near their house. He was assaulted with wooden logs. He

was lying on the road. Somebody informed his father. He was taken

to Gurukrupa hospital. There his statement was recorded. It was

treated as the FIR. It was registered vide C.R. No.I-289/2010

under Section 323 read with 34 of IPC at Narpoli police station,

District-Thane. The injured Ramdhiraj was subsequently shifted to

a hospital in Kalwa. He died on 17.10.2010. Therefore, Section

302 of IPC was added. The investigation was carried out. The

appellant was arrested on 28.10.2010. The clothes on his person

were seized. The statements of the witnesses were recorded. The

investigation was completed and the charge-sheet was filed. The

case was committed to the Court of Sessions. The defence of the

appellant was of total denial. At the conclusion of the trial, the 2 of 16 :3: 22.apeal-329-2020.odt

appellant was convicted and sentenced as mentioned earlier.

3. Heard Shri Salimuddin Shaikh, learned Advocate for

the appellant and Smt. M.R. Tidke, learned APP for the State.

4. During trial, the prosecution examined six witnesses,

including Medical Officer who had conducted the postmortem

examination, another Medical Officer who had given endorsement

on the dying declaration, PSI Jagtap who had recorded that dying

declaration, father of the deceased and the pancha for recovery of

clothes.

5. The evidence of the prosecution is as follows:

i. PW-1 Ramjanak Hariram Gaund was the father of the

deceased Ramdhiraj. He has deposed that the deceased was

working as a labourer. The incident occurred on 3.10.2010. PW-1

had gone to purchase groceries. He came back at around 6.30 p.m.

While he was returning from market, he saw his son lying on the

ground near the appellant's house in injured condition. He had

sustained injuries all over his body. PW-1's wife told him that four

persons, including the appellant and other accused, had assaulted

their son by taking him in their house. PW-1 then informed others.

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They took his son to Gurukrupa hospital where he was admitted.

PW-1 asked his son as to how he sustained the injuries. He told him

that the appellant and others assaulted him. He did not tell him the

reason for the assault. After that the police came to the hospital.

Statement of the injured was recorded and the FIR was lodged

against the appellant and others. PW-1 did not have money for

further treatment and, therefore, the deceased was taken to

Chhatrapati Shivaji Hospital, Kalwa which was a Government

Hospital. He was admitted in ICU. He succumbed to the injuries

on 17.10.2010.

In the cross-examination, he was asked about the

deceased's addiction to liquor. He denied the suggestion that the

deceased used to cause nuisance after consuming alcohol. He

admitted that there was no enmity between the deceased and the

accused. The appellant was staying beyond six to seven houses

from his house. He had not named other assailants besides the

appellant in his police statement.

ii. PW-2 Ramprasad Soni was a pancha in whose presence

clothes of the co-accusd Vikas were recovered from his house at his

instance. His evidence is not material as far as the appellant is 4 of 16 :5: 22.apeal-329-2020.odt

concerned.

iii. PW-3 Gautam Kamble was knowing PW-1. PW-3 was running

a small food-stall at Anjurphata. On 3.10.2010 at about 6.30 p.m.

PW-1 came to his stall and sought his help. He told PW-3 that his

son Dhiraj was assaulted by the appellant and his three associates.

PW-3 along with others went to the spot of incident. The injured

was still lying on the ground. PW-3 then went to the police station.

This witness then took the injured Dhiraj to a hospital. He has

deposed that the police enquired with the injured. The injured told

the police that he was assaulted by his friends by means of bamboo.

After some days he was discharged from the hospital. He was again

admitted to a hospital in Kalwa. On 17.10.2010, he succumbed to

his injuries.

In the cross-examination, he deposed that PW-1 told

about the incident of assault to PW-3's brother and PW-3 over-

heard their conversation. When the injured was taken to the

hospital, the police were with them. PW-3 travelled in a separate

rickshaw. He accompanied the injured in the rickshaw.

iv. PW-5 Dr. Arun Patil was the first doctor who treated the

injured. He deposed that he was running Gurukrupa hospital. On 5 of 16 :6: 22.apeal-329-2020.odt

3.10.2010 Ramdhiraj, the injured, was brought to his hospital. He

had sustained injuries on head and left hand. His left hand was

fractured. He gave history of assault. PW-5 then informed the police

through a letter. That letter was produced on record at Exhibit-50.

On 4.10.2010 the police came to his hospital. The statement of the

injured was recorded in his presence. Before recording the

statement, PW-5 examined the injured. He was conscious and in fit

state of mind. He gave his endorsement on the statement. The

endorsement is marked as Exhibit-51. PW-5 has deposed that the

patient had suffered blunt injury on head and fracture of left hand

at elbow.

v. PW-6 PSI Gulab Jagtap has recorded the statement of the

injured. He carried out the investigation. He deposed that on

4.10.2010 he went to the police station. He obtained consent of the

doctor before recording the statement. Doctor gave endorsement

that the patient was conscious and fit to give statement. After that,

statement was recorded in presence of the doctor. The injured told

him that there was some quarrel between him and the accused

regarding some conversation with the sister of the appellant. The

statement which is treated as FIR is taken on record and marked as 6 of 16 :7: 22.apeal-329-2020.odt

Exhibit-58. This witness then visited the spot of incident and

carried out spot panchnama. He seized wooden logs and sticks from

the spot. The spot panchnama is produced on record at Exhibit-59.

The statements of the witnesses were recorded by him.

In the cross-examination, he admitted that when the

statement of the injured was recorded his relatives were also

present. He admitted that there was no specific role attributed to

any of the accused in the FIR-dying declaration. After the death of

the injured on 17.10.2010, he carried further investigation. The

clothes of the deceased were seized by PSI Dhamal.

The FIR which is produced on record at Exhibit-58 is

treated as a dying declaration because the injured Dhiraj had

subsequently died. It is mentioned in the FIR that on 3.10.2010 at

about 12.00 p.m. he was talking with two sisters of the appellant.

He got angry. In the evening at about 6.00 p.m. the appellant came

to his house along with other accused Vikas, Bhigu and Mistry. He

was called behind the house of the appellant and all four of them

assaulted him with wooden sticks on his head, left hand and legs.

After that all those four ran away. Somebody informed his father

and then he was taken to Gurukrupa hospital.

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vi.     PW-4 Dr.Mangesh Ghadge had conducted the postmortem

examination. He was attached to the Medical College at Kalwa. He

has deposed that on 11.10.2010, Ramdhiraj was admitted to their

hospital. He had sustained injuries on abdomen and other parts of

body. There were abrasions and contusions. During treatment he

succumbed to his injuries on 17.10.2010. During postmortem

examination, following injures were noticed by this witness :

"(1) contusion over right upper limb entirely, (2) contusion over entire left upper limb, (3) contusion all over left lower limb with buttock, (4) contusion over right lower limb buttock posteolateral aspect, (5) contusion over left side trunk upto flanks anteriorly laterally, (6) contusion over right side trunk anteriorly upto flanks, (7) stitched wound over right frontoparietal region 6.0 with 6 stitches intact, (8) multiple abrasions with scab formation over back size ranging from 8. cm x 2 cm to 2.00 to 2.0 cm. (9) multiple abrasions over bilateral leg and thigh size ranging from 4 x 1 cm to 1 x 1 cm."

On internal examination, he found contusion of chest

wall. There was evidence of fracture of second rib on right side.

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The probable cause of death was death due to "hemorrhage shock,

due to multiple contusions due to hard and blunt object'.

In the cross-examination, he denied the suggestion that

the injuries were possible due to fall on hard and rough surface.

The postmortem notes were produced on record at Exhibit-48.

Though there was one such wound on the frontal parietal region,

internal examination did not show any injury to skull or brain or

hemorrhage. Both lungs however had collapsed. There were no

injuries to the internal organs in the abdomen including kidney,

pancreas, spleen, liver etc.

. This in short is the prosecution evidence.

6. Learned counsel for the appellant submitted that it is

not possible to believe that there could not have been any other

witness because the incident had taken place in a crowded locality

and somebody had informed PW-1 about the incident. But no such

person was examined who had seen the incident. There was no

motive to cause assault resulting in death of the injured. The dying

declaration was recorded in presence of the relatives and,

therefore, there was every possibility of tutoring. No specific role is

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ascribed to the appellant. Based on the same dying declaration, the

other accused are acquitted. Therefore, on the same grounds even

the appellant deserves to be acquitted. There was no recovery of

any weapon at the instance of the appellant. There is no other

connecting material in the form of C.A. certificates etc..

7. Learned APP opposed these submissions. She

submitted that there is no reason to disbelieve the dying

declaration. In the dying declaration though no specific role is

attributed to the appellant, the motive is attributed to the appellant

alone. It is the case of the prosecution and it is also mentioned in

the dying declaration that the deceased was talking to the

appellant's sisters, which was the reason why the deceased was

assaulted in the evening of 3.10.2010.

8. She submitted that based on the dying declaration itself

the conviction is properly recorded. She submitted that though the

charge under Section 302 of IPC was framed, the learned Judge has

given reasons for convicting the appellant for commission of

offence punishable under Section 304 (Part I) of IPC and, therefore,

the judgment calls for no interference.

9.          I have considered these submissions.        As far as the
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dying declaration is concerned, as rightly submitted by learned APP,

there is no reason to doubt the veracity or truthfulness of the dying

declaration. The evidence led by PW-6 PSI Jagtap about recording

of dying declaration after obtaining endorsement from PW-5 Dr.

Patil is sufficiently trustworthy. The deceased had described the

incident with sufficient clarity. PW-5 has given endorsement on the

dying declaration that the appellant was in a fit condition to give

his statement. His fitness is also supported by the fact that the

injured survived for a few days. PW-3 has deposed that he was

admitted to another hospital after a few days after discharge from

the first hospital. Thus, death of the deceased was not immediate

or within short time from the date of incident. He had survived for

almost fourteen days. Therefore, there is no reason to doubt his

state of fitness when the statement was recorded. Therefore, it can

safely be held that the statement was recorded by PW-6 when the

injured was in a condition to give statement.

10. There is no substance in the submission that the

statement was a result of tutoring. There was no reason for any of

the relatives of the deceased to implicate the appellant falsely.

Even no suggestion to that effect is given that the relatives had any 11 of 16 : 12 : 22.apeal-329-2020.odt

enmity with the appellant. In fact, PW-1 has deposed that even the

deceased did not have any enmity with the appellant.

11. As far as the oral dying declaration to PW-1 is

concerned, it was quite vague and even then the injured had not

given any reason for the assault. PW-1 has also admitted that he

had not named other accused when the injured narrated the

incident to him. Considering all these, benefit was given to the

other accused and they were acquitted.

12. As far as the weapons are concerned, they were found

at the spot. There was no separate recovery at the instance of the

appellant. There was no CA report of his clothes to connect the

appellant with the act. Therefore, the only circumstance against the

appellant is about dying declaration. However, as mentioned

earlier there is no reason to doubt the veracity of the narration in

the dying declaration.

13. Therefore, in this background, the description in the

dying declaration assumes importance. Some salient features of

the dying declaration are that it had named four persons. None of

the other accused is convicted by the trial Court. There is no

specific role attributed to the present appellant of causing any 12 of 16 : 13 : 22.apeal-329-2020.odt

particular injury either on the head or on the ribs. It has come in

the statement that all the four accused assaulted him. The motive,

however, was attributed only to the appellant as the deceased was

talking to his sisters in the morning of the date of incident.

Therefore, even if the dying declaration is accepted and the assault

at the hands of the appellant is held to be proved, the next

important question would be as to what offence exactly the

appellant has committed. Significantly the other accused are

acquitted and aid of Section 34 of IPC is not available to the

prosecution. The appellant is convicted simpliciter under Section

304 (Part I) of IPC. Learned Judge has not even given reasons as to

why the dying declaration could not be believed as far as other

accused are concerned. Even then, the question would still remain

whether the appellant had the requisite intention to cause death or

such serious bodily injury which in all probability could have

caused death. The prosecution has not produced on record the

medical papers relating to the treatment given to the deceased.

Admittedly he had survived from 3.10.2010 to 17.10.2010. The

prosecution case is absolutely silent as to what exact treatment was

given to the deceased and how his health deteriorated during all

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these days. Therefore, the only material available to find out the

status of his health is the postmortem examination which shows

injuries caused to him. Significantly the head injury showed

stitches but there was no internal damages either to the skull or to

the brain. Therefore, that head injury was not very serious. The

other injuries were on the chest causing rib fracture. The dying

declaration has not attributed any particular blow or the narration

does not connect the appellant with that particular injury.

Therefore, it is difficult to hold that the appellant had the requisite

intention or even the requisite knowledge to bring home the guilt

for commission of offence of culpable homicide not amounting to

murder. At the highest, considering the dying declaration, the

appellant can be held responsible for causing fracture or grievous

injury to the deceased and, therefore, it has to be held that he has

committed the offence punishable under Section 326 of IPC and

not under Section 304(I) of IPC. It is also to be noted that the

assailants, including the appellant, had ample opportunity to cause

assault of vital parts including the head by giving more blows and

forceful blows on the injured, but, except for the rib fracture, no

other vital part was attacked. Therefore, to that extent, benefit will

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have to be given to the appellant. Hence, the conviction under

Section 304 (Part I) of IPC will have to be set aside. The appellant

was sentenced to suffer RI for five years. Since I am bringing down

the conviction to Section 326 of IPC, which is of lesser degree than

Section 304 (Part I) of IPC. Sentence of five years is imposed for

commission of offence punishable under Section 304(Part I) of IPC.

It will have to be reduced to a reasonable extent. However,

unreasonable leniency cannot be shown to the appellant in the

background of this case. In the interest of justice, the substantive

sentence of four years will serve the purpose. Hence, the following

order :

:: O R D E R ::

i. The appeal is partly allowed.

ii. The conviction of the appellant under Section 304 (Part I) of

IPC and the sentence of RI for five years and payment of fine

of Rs.20,000/- and in default directions to suffer SI for six

months are set aside. Instead, the appellant is convicted for

commission of the offence punishable under Section 326 of

IPC. He is sentenced to suffer RI for four years and to pay

fine of Rs.20,000/- (Rupees Twenty Thousand Only); and in

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default of payment of fine to suffer SI for six months.

iii. Out of the fine amount, Rs.15,000/- are directed to be paid to

the father of the deceased, namely, Ramjanak Hariram

Gaund, residing at Opp. Omsai Kirana Store, Room of Balu

Kamble, Charnipada, Anjurphata, Taluka-Bhiwandi, District-

Thane as compensation.

iv. The appellant is granted set off under Section 428 of Cr.P.C.

for the period which he spent in jail as an under trial prisoner

during pendency of the trial.

v. Besides these modifications, rest of the clauses in the

operative part of the impugned judgment and order are

maintained.

vi. Criminal Appeal is disposed of in aforesaid terms.

(SARANG V. KOTWAL, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

            2022.08.24         Deshmane (PS)
            17:46:01
            +0530




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