Mahendra Kumar @ Lala Duvari Kewat vs The State Of Maharashtra
2022 Latest Caselaw 2752 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.1295 OF 2012

Mahendra Kumar @ Lala Duvari
Kewat                                                    ... Appellant
           Versus
The State of Maharashtra                                 ... Respondent
                                    ....
Mr. Yogesh Rawool, Advocate a/w. Himalaya Chaudhari, Pravada Raut,
i/b. Shailesh Redekar, for the Appellant.
Mr. A.A. Palkar, APP, for the Respondent-State.
                                    ....

                              CORAM :   S. S. SHINDE AND
                                        SARANG V. KOTWAL, JJ.

RESERVED ON : 16th MARCH, 2022

PRONOUNCED ON : 22nd MARCH, 2022

JUDGMENT : [PER SARANG V. KOTWAL, J.]

1 The Appellant has challenged the judgment and order

dated 30.10.2012 passed by the Additional Sessions Judge, Vasai in

Sessions Case No.13/2011. The learned trial Judge has convicted

the Appellant for commission of offence punishable under Section

302 of the Indian Penal Code and he was sentenced to suffer life

imprisonment and to pay a fine of Rs.2,000/-; and in default to

suffer R.I. for one year. The Appellant was also convicted for

commission of offence punishable under Section 333 of IPC and

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was sentenced to suffer R.I. for seven years and to pay a fine of

Rs.2,000/-; and in default to suffer R.I. for three months. The

Appellant was further convicted for commission of offence

punishable under Section 353 of IPC and was sentenced to suffer RI

for two years and to pay a fine of Rs.1,000/-; and in default to

suffer RI for three months. The substantive sentences were

directed to run concurrently.

2 The prosecution case is that the Appellant was a rickshaw

driver. The deceased Police Hawaldar Anil Aitewadekar was on

traffic duty. On 27.10.2020 at about 7.00 p.m., he had given

challan to the Appellant for traffic violation and for not having

requisite documents. The Appellant got enraged. He came back to

the spot in front of Hotel Rishikesh at Vasai. The deceased was on

duty. The Appellant poured petrol from a plastic bucket on the

person of the deceased. He also threw a shirt soaked with petrol on

the deceased and set him on fire by lighting a matchstick. The

deceased was taken to a hospital. He had suffered 39% burn

injuries. He survived for a few days and then died on 3.11.2010.

The cause of death was mentioned as "shock due to burns". The

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deceased had suffered burns on head, neck, face, chest, back and

upper-limbs. After registration of the FIR, the investigation was

carried out. The Appellant was arrested. On 18.11.2010, the test

identification parade was held to enable the witnesses to identify

the Appellant. After conclusion of the investigation, charge-sheet

was filed and the case was committed to the Court of Sessions.

During the trial, the prosecution examined fourteen witnesses,

including the eye witnesses and PW-8 Uttam Jagdale who had

recorded the dying declaration of the deceased.

3 The defence of the Appellant was that of total denial. He

examined Dr. Vispi Driver, as a defence witness, to show that the

deceased was suffering from other ailments and he had less

chances of survival because of his health condition in case of lesser

burn injuries.

4 Heard Shri Yogesh Rawool, learned counsel for the

Appellant and Shri A.A. Palkar, learned APP for the Respondent-State.

5 Learned counsel for the Appellant submitted that there is

discrepancy between the statements of the eye witnesses. The test

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identification parade was not held in accordance with the rules framed

in that behalf. There was no sufficient light on the road when the

incident took place. Therefore, the eye witnesses could not have seen

the incident properly.

6 Learned counsel submitted that though it was a crowded

locality, only a few eye witnesses whose evidence is doubtful, are

examined by the prosecution. The deceased could not be in a position to

give his dying declaration considering that he was taking treatment

including sedatives.

7 Learned counsel also made an attempt to argue that the case

may not fall within the meaning of 'murder' as the deceased was

suffering from serious health issues which could be the cause of his

death. According to learned counsel, the offence could be of a much

lesser degree.

8 Learned APP, on the other hand, relied on the deposition of

the eye witnesses and submitted that the prosecution has proved its case

beyond reasonable doubt.

9 Learned trial Judge had accepted the prosecution evidence in

totality and had convicted and sentenced the Appellant, as mentioned

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earlier.

10 We have considered these submissions and we have perused

the prosecution evidence carefully. Broadly speaking, the prosecution

has brought on record evidence of eye witnesses, dying declaration,

medical evidence and other investigation papers, viz., panchnamas and

C.A. reports.

11 PW-12 Dr. Ashutosh Meshram had conducted the postmortem

examination on 3.11.2010. He had found that the deceased had

suffered 39% burns, as mentioned earlier. The cause of death was

"shock due to burns". The cause of death was not because of any other

health issues of the deceased. Therefore it is beyond doubt that if the act

is proved against the Appellant, the offence cannot be of any lesser

degree. He has further deposed in the cross-examination that the burn

injuries were sufficient to cause death. Thus, the prosecution has proved

that the deceased had died a homicidal death.

12 PW-1 Manjunath Shetty had seen the incident when the

deceased was already engulfed by the flames. He has deposed that he

was working in the Hotel Rishikesh. It was situated opposite Vasai

bus-stand. He knew the deceased who was a traffic police. On

27.10.2010, at about 8.00 p.m., he saw that one person wearing police

uniform was engulfed with flames. The staff of his hotel extinguished

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the fire with the help of water and then that person was taken to the

hospital. He denied having seen the actual incident of pouring petrol

and setting the deceased on fire.

13 PW-2 Sayyad Hussain Razak is an important witness, who was

one of the eye witnesses. He knew the deceased. On 27.10.2010 at

about 8.00 p.m. he had gone to Hotel Rishikesh with his friend to have

tea. He saw the Appellant coming near the deceased with a bucket

having petrol. He threw it on the deceased, who was sitting on his

motorcycle. The Appellant also threw a shirt, which was soaked in

petrol, on the deceased and then lit a matchstick and threw it on the

deceased. The Appellant then ran away from the spot. PW-2 himself

tried to catch him, but, the Appellant ran away. He came to know about

name of the Appellant from his friend Vaibhav. The deceased was taken

to a hospital. On 18.11.2010, PW-2 was called for test identification

parade, where he identified the Appellant out of six persons who were

standing in the parade.

In the cross-examination, he has stated that there were

commercial establishments around the spot. In the evening, there used

to be rush of people on that road. He did not know whether at the

entrance of the S.T. bus-depot there was any street light or whether there

were street lights from Rishikesh Hotel to Ambadi Naka. He was not

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acquainted with the Appellant or with Vaibhav before the incident. He

had seen the Appellant when the Appellant was two feet away from the

deceased. According to him, he could not save the deceased because the

incident took place within a short time.

14 PW-7 Nagendra Vishwakarma is another eye witness. He also

had gone to the same hotel at about the same time. He has narrated the

incident in the same manner as deposed by PW-2 Sayyad Razak. He had

also chased the Appellant. He was also called for identification parade

on 18.11.2010 and he had identified the Appellant in the parade.

In the cross-examination, he has deposed that he was

knowing the deceased since prior to the incident. There was heavy

traffic near that hotel. It was a crowded area in the evening. He denied

the suggestion that at the time of incident there were no street-lights at

the spot. He has stated that the dummy persons, who stood in the

identification parade, were of the same age group of 25 to 27 years.

15 PW-9 Raghunath Vanmali was the Naib Tahsildar, who had

conducted the identification parade. He has deposed about the

procedure followed by him. He had selected six dummy persons, who

were similar in the description to the Appellant. First PW-7 Nagendra

identified the Appellant. Then PW-2 Sayyed Razak had also identified

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him. Apart from them, three more witnesses i.e. Amrish Pal, Vinod

Yadav and Divakar Tiwari identified the Appellant. Those three people

were not examined as the prosecution witnesses.

In the cross-examination, nothing much is brought out in

favour of the defence. The test identification parade panchnama is

produced on record at Exhibit-33.

16 Thus, the evidence of PW-2 Sayyed Razak, PW-7 Nagendra

Vishwakarma and PW-9 Raghunath Vanmali sufficiently establish that

the Appellant has committed this offence. Apart from that, there is a

strong evidence of written dying declaration. The prosecution has

examined PW-8 P.I. Uttam Jagdale in that behalf. He has stated that on

receiving information about the incident he was asked to record

statement of the injured. He went to Golden Park Hospital. At about

10.15 p.m., the doctor informed him that the injured was in a position to

give his statement. PW-8 obtained his opinion in writing and after that

the statement of the injured was recorded as per his say. His thumb

impression was obtained on it. It was treated as FIR and the offence

was registered. It is produced on record at Exhibit-29.

In the cross-examination, he denied the suggestion that the

doctor was not present when the statement was recorded.

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17 The doctor who had given endorsement on this dying

declaration was examined as PW-5. He was Dr. Malcum Pestanji. He has

stated that prior to recording of that statement, the police officer

enquired with him about the patient's condition. According to this

witness, the injured was capable of giving his statement and in the

presence of this witness, his statement was recorded. He has stated that

the statement was given in full consciousness. He has identified his

endorsement on the statement.

In the cross-examination, he stated that since he was busy

giving treatment to the patients, he did not hear what the patient told

the police. The patient was in a critical condition. The thumb impression

was not affixed in presence of this witness.

18 In the dying declaration, which is treated as FIR, the deceased

had described the incident. It is mentioned in the FIR that at about 7.00

p.m., the Appellant was asked for his license by the deceased. He did

not have other documents and that he was taking the passengers from

the area which was prohibited for taking passengers. Therefore, the

deceased seized his license and gave him a challan. At about 8.00 p.m.,

he came there and poured petrol on the deceased and threw his shirt on

the deceased and then set him on fire.

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This version is consistent with the version of the eye witnesses

and it is sufficiently proved. There is hardly any infirmity in this dying

declaration or in the procedure in recording the dying declaration.

19 The other witnesses had taken part at different stages of the

investigation. PW-3 Sanjay Sawant was a pancha for seizure of clothes

of the Appellant and for spot-panchnama. During conducting that spot

panchnama, the half burnt pouch of the deceased containing the

Appellant's license, was seized.

20 PW-4 Mohd. Hanif Patel was the photographer, who had taken

the photographs.

21 PW-6 Hareshwar Patil was a pancha and was present when

the rickshaw was recovered at the instance of the Appellant.

22 PW-10 Sunil Shinde had taken the deceased to the hospital in

a rickshaw. When the deceased was taken to the hospital, he was able to

speak and in his presence he told Vaibhav Borker about the incident and

had told them that the Appellant had committed this offence. Therefore,

the statement of the deceased made in the presence of this witness

amounts to oral dying declaration.

23 PW-11 Vaibhav Borkar was a friend of the deceased. He was a

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witness to the incident when the deceased had seized driving license of

the Appellant. This witness had extinguished the fire. However, he has

not deposed about the oral dying declaration.

24 PW-13 Police Naik Rajesh Badekar had gone to the Golden

Park Hospital. He has deposed that in his presence, the deceased had

narrated the incident and had named the Appellant as an offender.

25 PW-14 PI Chandrakant Jadhav was the investigating officer.

He arrested the Appellant on 28.10.2010. He had conducted the

investigation into C.R. No.I-400/2010 of Manikpur police station

concerning this offence. He had seized the shirt on the spot, the clothes

of the deceased and other articles. He had sent them for C.A.

examination.

26 Besides this oral evidence, C.A. reports were produced on

record. The C.A. reports show that the articles at the spot, the clothes of

the deceased as well as full-pant of the Appellant showed presence of

petrol residues.

27 Thus, from the above discussion, we are satisfied that there is

strong evidence against the Appellant. There are statements of eye

witnesses who have identified the Appellant at the test identification

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parade. There are other eye witnesses who were knowing the Appellant.

They have also implicated the Appellant. There is a written dying

declaration recorded with the endorsement of the medical officer. There

is recovery of clothes of the Appellant showing presence of petrol.

There was recovery of license from the half burnt pouch of the deceased.

That license was that of the Appellant.

28 Based on this evidence, it can safely be concluded that the

prosecution has proved its case beyond reasonable doubt against the

present Appellant. There is no scope to hold that it can be a lesser

offence. The offence punishable under Section 302 of IPC is duly proved

by the prosecution against the present Appellant. The learned trial

Judge has taken all these factors into consideration in convicting and

sentencing the Appellant. Therefore, we do not find any reason to take a

different view. With the result, the Appeal is dismissed. However, it is

clarified that the Appellant shall be entitled for the set-off under Section

428 of Cr.P.C., which is not mentioned in the operative part of the trial

Court judgment. The Appeal is accordingly disposed of.

PRADIPKUMAR PRAKASHRAO (SARANG V. KOTWAL, J.) (S. S. SHINDE, J.) DESHMANE Digitally signed by PRADIPKUMAR PRAKASHRAO DESHMANE Date: 2022.03.22 15:41:50 +0530 Deshmane (PS)

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