Bombay High Court
Mittu @ Mithu Bholi Pareda vs The State Of Maharashtra on 27 September, 2022
Bench: R.P. Mohite-Dere, Sharmila U. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 79 OF 2014
Mittu @ Mithu Bholi Pareda ... Appellant
Versus
State of Maharashtra ... Respondent
...
Mr. Gaurav Bhavnani, for the Appellant.
Mr. A.R. Kapadnis, A.P.P. for the Respondent-State.
...
CORAM : REVATI MOHITE DERE &
SHARMILA U. DESHMUKH, JJ.
RESERVED ON : AUGUST 19, 2022
PRONOUNCED ON : SEPTEMBER 27, 2022
ORDER (Per : SHARMILA U. DESHMUKH, J, ) :
1. The Appeal takes an exception to the judgment and order
dated 31.07.2013 passed by the Learned Sessions Judge in Sessions
Case No.103 of 2012. By the impugned judgment and order, the
Appellant has been convicted and sentenced as under:
For the offence punishable under Section 302 of the
Digitally
signed by
SANJAY
SANJAY ASARAM
ASARAM MANDAWGAD
MANDAWGAD Date:
2022.09.28
Indian Penal Code to suffer imprisonment for life.
11:34:42
+0530
2. Briefly stated the case of the prosecution is as under:
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The deceased - Utpal Amrendra Chaudhari, and the
Appellant - Mittu @ Mithu Bholi Pareda were known to each other.
The Appellant was cleaner of a truck bearing No. MH-04-CP-5410
and the Appellant and Utpal (deceased) used to sleep in the said truck
itself. On 15.08.2011, there was holiday on account of independence
day and the truck was parked at Oshiwara Park at Link Road site;
Utpal and the Appellant were together the entire day on 15.08.2011,
and were consuming liquor throughout the day and in the night also.
On 16.08.2011 at about 11:30 a.m., there was a quarrel between
Utpal and the Appellant on the issue of mobile phone of Utpal, which
was missing. As the mobile phone could not be found, Utpal informed
PW-1 -Shivprasad Vikas Biswas, PW-2- Vijay Gangaram Bhagat @
Vijay Kaliya and PW-5-Complainant-Fakre Alam Anjuman Shaikh that
the Appellant has taken his phone and was not returning it. PW-2-
Vijay Kaliya and PW-5-Fakre Alam Anjuman Shaikh came near the
truck and PW-5 Fakre Alam Anjuman Shaikh (Fakre Alam) gave a call
on the mobile phone of Utpal and the phone was heard ringing from
the cabin of the truck. Appellant was asked to open the cabin of the
truck, but he stated that the keys are with the driver; Utpal, Appellant
and PW-2 Vijay Kaliya went to the house of the truck-driver to get the
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keys, but PW-2 Vijay Kaliya and Utpal returned back as the Appellant
picked up a quarrel with them on the way. Thereafter, PW-2 Vijay
Kaliya and PW-5 Fakre Alam returned to the parking of auto rickshaw
and Utpal went to the rear portion of the truck and slept therein.
After sometime, the Appellant returned and went to the rear portion
of the truck, where Utpal was already sleeping. At about 3:30 a.m. to
3:45 a.m. PW-2 Vijay Kaliya and PW-5 Fakre Alam heard shouts from
the truck and rushed towards the said truck. PW-5 Fakre Alam
climbed into the rear portion of the truck and saw the Appellant
assaulting Utpal on his head, neck and chest with a wooden log. The
Appellant, on seeing Fakre Alam, jumped from the truck and ran
away; Utpal was unconscious and blood was oozing from his mouth,
nose and eyes. PW-5 Fakre Alam and PW-2 Vijay Kaliya, immediately
informed the incident to PW-1 - Shivprasad Vikas Biswas and also
called the police. The police thereafter reached the spot and took
Utpal to Cooper hospital in a police vehicle; FIR was registered by
PW-5 Fakre Alam on 16.08.2011 at 8:45 a.m. vide CR No.384 of
2011 for the offence punishable under Section 307 of the Indian Penal
Code (for short, "IPC") against the Appellant; Utpal expired on
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16.08.2011 at about 9:00 a.m. and offence of Section 307 was altered
to one under Section 302 of the IPC, as against the Appellant.
3. As the offence was exclusively triable by the Court of
Sessions, learned Metropolitan Magistrate committed the case to the
Sessions Court, Greater Mumbai. Charge was framed against the
Appellant, to which he pleaded not guilty and claimed to be tried.
4. The prosecution, in support of its case, examined in all 10
witnesses viz (I) PW-1- Shivprasad Vikas Biswas, to prove the inquest
panchnama. He has also identified Article 01- pant of Utpal (deceased)
(ii) PW-2 - Vijay Gangaram Bhagat @ Vijay Kaliya, friend of Utpal,
who also identified Article 02- weapon of assault i.e. wooden block
(iii) PW-3- Uttam Taruni Devnath, panch to the spot panchnama and
seizure panchnama (iv) PW-4 - Vasant Pandurang Gaikwad,- Police
Naik, who collected blood stained clothes of Utpal (deceased) (iv) PW-
5 Shaikh Fakre Alam - eye-witness and complainant (v) PW-6 Bandu
Shamrao Bhosale, truck driver (vi) PW-7- Bharat Anant Shine- panch
to Memorandum Panchnama of recovery of blood stained clothes at
instance of Appellant (vii) PW-8- Dr. Khandu Ramu Burange, Doctor,
who proved the Medico Legal Register entry of Utpal (deceased) (viii)
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PW-9 Prakash Atmaram Bane - Investigating Officer (ix) PW-10-
Uttam Damodar Kadlag- Police Inspector, also an Investigating Officer.
5. The case of the Appellant under Section 313 of Cr.P.C,
was of denial and false implication.
6. After considering the evidence on record, the learned
Sessions Judge convicted the Appellant for the offence punishable
under section 302 of IPC.
7. Heard learned counsel appearing for the Appellant and the
learned APP for the respondent-State. Perused the papers with the
assistance of the learned Counsel appearing for the parties.
8. Learned counsel appearing for the Appellant submits that
there is no direct evidence as against the Appellant to connect the
Appellant with the offence; that the entire case of the prosecution
rests upon the circumstance of last seen; that there is an inordinate
delay in filing the FIR; that there are discrepancies in the testimonies
of the eye-witnesses - PW-2 and PW-5; and, that the prosecution has
failed to prove motive. The learned counsel for the Appellant, in the
alternative, prays for reduction of the offence from Section 302 to
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Section 304 Part-II of the IPC. Learned counsel for the Appellant
further submits that the circumstances surrounding the commission of
the offence must be taken into consideration, inasmuch as the
Appellant and Utpal were friends; that there was no prior enmity; that
at the relevant time both the Appellant and Utpal were intoxicated;
and that the assault was not a premeditated assault.
9. Learned counsel for Appellant relied upon the following
judgments:
(i) State of Rajasthan vs. Shera Ram Alias Vishnu Dutta 1 ;
(ii) Suraya Yoganand Alias Chitti vs. State of Andhra
Pradesh 2 ;
(iii) Lavghanbhai Devjibhai Vasava Vs. State of Gujarat 3 ;
(iv) Gurmukh Singh vs. State of Haryana 4.
10. Learned APP supports the impugned judgment and order
and submits that no interference is warranted; that the motive is
clearly established, inasmuch as the mobile phone which was the cause
of dispute between Utpal (deceased) and the Appellant was seized
1 (2012) 1 SCC 602
2 (2007) 15 SCC 773
3 (2018) 4 SCC 329
4 (2009) 15 SCC 635
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from the cabin of the truck; that reduction to a lesser offence is not
warranted in the facts and circumstances of the case; and, that the
prosecution has established the guilt of the Appellant beyond
reasonable doubt.
11. We have heard the learned Counsel appearing for the
parties. With the assistance of learned Counsel for the parties we have
scrutinized the evidence on record.
12. PW-1 - Shivprasad Vikas Biswas has deposed that Utpal
was known to him and used to sleep in the truck parked near
Oshiwara Police Station. PW-1 has further deposed that on
16.08.2011 at about 3:00 a.m., Utpal came to his room and informed
him that there was quarrel between him and the Appellant, as the
Appellant had taken his mobile phone; that he (PW-1) advised Utpal
not to do anything and that they will look for it in the morning; that
at about 3:45 a.m. he was informed by PW-2- Vijay Kaliya, that
Appellant has assaulted Utpal and Utpal was injured and lying in the
truck; that pursuant thereto, he went to the said truck and found
Utpal lying in the truck with injuries on his chest and ear; and, that the
inquest panchnama (Exh.10) was drawn up in his presence.
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13. In the cross-examination of PW-1, nothing material has
been elicited. Suggestion was given to PW-1 that though he had
advised Utpal that dispute will be addressed in the morning, still Utpal
went towards Mittu. Evidence of PW-1 reveals that there was a
dispute between Appellant and Utpal (deceased) pertaining to Utpal's
mobile phone.
14. PW-2 has deposed that on 15.08.2011, Utpal and the
Appellant were together in the truck and had taken meal at about 7:00
p.m.; that he (PW-2) had gone to sleep in the parking of auto-
rickshaw; that at night Utpal had come and informed him that his
mobile was missing and it was taken by the Appellant, and, that the
Appellant was not returning the phone; that thereafter, PW-5-Fakre
Alam, Utpal and he came near the truck to search for the mobile
phone; that PW-5 Fakre Alam called on Utpal's phone; that they heard
the phone from the cabin of the truck; that the Appellant told them
that he will bring keys of the cabin but he did not come; that
thereafter, he and PW-5-Fakre Alam went towards the parking of auto
rickshaw; that after sometime, the Appellant returned to the truck;
that the Appellant and Utpal were thereafter in the same truck; that
because of suspicious movements of Appellant, he and PW-5-Fakre
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Alam came towards the truck and saw the Appellant getting down
from the side of the truck; that when he peeped from the side of the
truck, he found that blood was oozing from ear, nose and mouth of
Utpal and there was piece of wooden block stained with blood; that he
tried to catch the Appellant but he fled; that he went the house of the
PW-1 and brought him to the spot; that thereafter, he informed the
incident to Oshiwara Police Station.
15. Suggestions were given to PW-2 that there were inimical
relations between the Appellant and PW-2 due to a previous quarrel;
that PW-2 was not present on the spot, and was not aware about the
incident, which have been denied. Pertinently, the cross examination
supports the case of the prosecution pertaining to the dispute between
Utpal and Appellant regarding the mobile phone of Utpal. There is no
cross examination on the material deposition of PW-2 regarding
finding Utpal in an injured state in the rear portion of the truck, the
finding of blood stained wooden block and fleeing of the Appellant.
The testimony of PW-2 in that respect stands uncontroverted.
16. PW-5 has deposed that he knew Utpal and the Appellant
and has identified the Appellant, who was present in the Court. PW-5
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has further deposed that the Appellant used to work as a cleaner on
the truck and used to stay in the said truck; that on 16.08.2011 in the
midnight at 12:30 a.m. Utpal had come to him at parking place of
Auto-rickshaw and informed him that his mobile phone was missing
and the Appellant is denying having taken his phone; that Utpal asked
him to search for his mobile phone; that he gave a ring on the mobile
phone of Utpal and found that the mobile was ringing from the cabin
of the truck of the Appellant. PW-5 has further deposed that when he
asked the Appellant to open the cabin, Appellant informed him that he
does not have the keys; that thereafter, Utpal and PW-2-Vijay Kaliya
went with the Appellant to the house of the truck-driver but the
Appellant picked up a quarrel on the way and therefore, Utpal and
Vijay Kaliya returned back. PW-5 has further deposed that after
sometime, the Appellant returned to the said truck without keys; that
at that time, Utpal had gone to sleep in the truck; that thereafter, Vijay
Kaliya and he had returned to the auto-rickshaw parking place and at
about 3:30 a.m. or 3:45 a.m., he heard shouts from the said truck. He
further deposed that when they reached the said truck, they found that
the Appellant was assaulting Utpal with a wooden block on his head,
neck and chest; that they had climbed into the rear portion of the
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truck and has seen the incident; that they had gone to PW-1 and
narrated the incident to him; that thereafter, PW-2 had informed the
police station and the police had come and taken Utpal to the
hospital.PW-5 has further deposed that on the same morning at about
7:00 a.m., he had lodged the FIR with the Oshiwara Police Station.
17. In the cross examination of PW-5, suggestion was given
that Utpal (deceased) was under the influence of liquor and had lost
his balance and the bleeding head injury was due to the fall, which was
denied. Perusal of cross examination of PW-5 reveals that the cross-
examination and in particular paragraph 15 of the cross-examination
supports the case of the prosecution regarding the presence of PW-2
and PW-5 at the time of the incident, the assault upon Utpal by the
Appellant with the wooden block when Utpal was sleeping and the
fleeing of the Appellant after the incident. For proper appreciation of
the cross examination, paragraph 15 of the cross examination is
reproduced herein-below:
"15. Myself and Vijay Kaliya were present together
when we had heard the shouts at the parking place. I had
seen through my eyes that accused was assaulted by
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Art.No.2 log piece to Utpal. Utpal was lying down at that
time. I had seen the accused while assaulting to Utpal and
not after the assault incident was over. I had climbed on
the truck and had seen that the accused was beating to
Utpal. The Art.No.2 log piece was held by accused by his
both the hands while assaulting to Utpal. I had seen the
blood on the head of Utpal but I had not seen that the
accused had assaulted to Utpal on his head. I had seen
when accused had assaulted by log piece to Utpal on his
neck. I had seen that the accused had assaulted by piece of
log Art.No.2 on the chest of Utpal. Accused had assaulted
by Art.No.2 on the left side chest of Utpal. I had climbed
the truck first and then Vijay Kaliya had climbed the truck
and had seen the incident. We had not tried to stop the
accused because I had seen the blood. It was night and
dark but in the said truck portion there was light lit. I had
tried to catch accused while he was going away but Vijay
Kaliya had asked me not to catch him as he had assaulted
to Utpal now and then I did not attempt to catch the
accused. The blood was oozing from the head, nose, ear,
mouth of Utpal and it was a murder and therefore it was
impossible for me to take Utpal to hospital and I had
asked one or two auto rickshaw driver but after observing
blood they refused to carry Utpal to hospital. The incident
took place at about 3.30 am or 3.45 a.m. on 16/08/2011."
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18. Evidence of PW-5 is corroborated by the PM Report
(Exh 31) which is admitted under Section 294 of Cr.P.C. Perusal of
PM Report reveals the following injuries:
"External --
17. Surface wounds and (i) (R-1) eye - blackened, swollen
injuries- Their nature, (ii) CLW 3 in number 1 below another
position, dimensions separated from one another by 0.5 cm
(measured) and oblique above one size of 1 x 0.2 cm
directions to be middle - 2.5 x 0.2 cm
accurately stated - their lower - 2 x 0.2 cm
probable age and
causes to be noted. margin irregular, reddish, no foreseen
Particles seen.
If bruises be present (iii) contusion - at (rt) temporal & (rt)
what is the condition of mastoid
the subcutaneons region upto (rt) angle of size of 16 x 11
tissues? cm with swelling seen, blue and
black."
III. Internal examination
19. Head -
( i ) Injuries under the scalp 1) Hemorrhagic contusion size of 9 x
their nature. 7 cm darkened seen over (rt)
temporal region.
2) Hemorrhagic contusion size of 8 x
4 cm darkened (rt) mastaid region.
3) Hemorrhagic contusion size of 11 x
3 cm darkened at (rt) perieto occipital
region.
4) Rt temporal muscle hemorrhages
seen.
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( ii ) Skull- Vault and base- 1) Crack stracture of (rt) temporal,
describe fractures, their posterior
sites, dimensions, (rt) & (rt) perietal region;
directions etc. semicircular, size of 14 x 1 cm.
2) Linear fracture of (rt) temporal
fossa.
(iii ) Brain - The appearance Meninges - Intact -
of its coverings, size, Brain - congested, sedenatous
weight and general SAH - Seen over (lt) temperol-
condition of the organ parietal region.
itself and any & SAH (lt) temporal parietal region.
abnormality found in its
examination to be
carefully noted (Weight
M. 3 gram F. 2.75
grams).
19. PW-5 has deposed that he had witnessed the Appellant
assaulting Utpal (deceased) with a wooden block. Perusal of head
injuries in PM report reveals crack fracture of temporal posterior (rt)
and (rt) parietal region, semicircular, size 14 x 1 cm and linear
fracture of (rt) temporal fossa, which indicates assault by force on
head of Utpal (deceased). PM Report shows the cause of death as
"Head Injury (unnatural), however viscera preserved for chemical
analysis." The report of the Forensic Science Laboratories (FSL) does
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not reveal any poison. Considering the PM Report and the FSL report,
it cannot be disputed that the death of Utpal was homicidal.
20. Apart from the ocular evidence, the prosecution relies on
documentary evidence i.e inquest panchanama, spot panchnama,
seizure panchnama, C.A. report, arrest panchnama, memorandum of
disclosure statement, memorandum panchnama and Post-Mortem
Report (PM Report) .
21. Statement of Appellant under Section 313 reveals the
inconsistency in the defence raised by the Appellant in the cross
examination of prosecution witnesses and in his statement under
Section 313. The relevant question No.183 and explanation of
Appellant is hereby reproduced :
"Q.183. Why the witnesses are deposing against you ?
Ans .: Fakre Alam and Vijay Kalya had come to my
truck for consuming liquor on 14.08.2011 and I had
requested them to go elsewhere else the police may come
there and I would land into trouble but they did not listen
to me and had asked me to prepare food for them and I
had no food and on informing to them, Vijay Kalya had
slapped me twice, thrice. Fakre Alam and Vijay had gone
to near by Chinese Restaurant and had brought knife and
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threatened me and therefore I had run away therefrom
and had gone to Vashi. These witnesses used to puncture
the truck tyres and therefore Bandu Bhosale and the
witnesses had no good relations. I had no quarrel at any
time with Utpal Choudhary and the witnesses used to pick
up quarrels among themselves and they have falsely
implicated me in this case."
22. Evidence of PW-5 corroborates the evidence of PW-2 in
material particulars i.e. dispute between Utpal and the Appellant in
respect of the mobile phone of Utpal and Utpal and the Appellant
being in the same truck prior to the incident. PW-5 has deposed
having witnessed the assault on Utpal by the Appellant with wooden
block on his head, neck and chest, which has not been shaken in his
cross-examination. Evidence of PW-2 and PW-5 is consistent, cogent
and reliable and is sufficient to connect the Appellant with the offence.
The motive for the offence i.e. taking of the mobile phone by the
Appellant and keeping it in the cabin of the truck is clearly proved
through the evidence of the PW-2 and PW-5 and the seizure
panchnama. The seizure panchanama shows recovery of the mobile
phone from the cabin of the truck.
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23. Learned counsel for Appellant has sought to assail the
impugned judgment and order on the ground that there are certain
discrepancies in the evidence of PW-2 and PW-5. The learned Counsel
for Appellant has submitted that the evidence of PW-1 reveals that it
was only PW-2, who informed him about Utpal lying injured in the
truck and not PW-5; that there are discrepancies in the evidence of
PW-2 and PW-5 regarding climbing into the truck and seeing the
assault. In our opinion, the said discrepancies are minor discrepancies,
which do not create a doubt about the credibility of the evidence to
connect the Appellant with the offence. The eye witnesses cannot be
expected to give a picture perfect report of the incident and there are
bound to be some minor discrepancies. Evidence of PW-2 and PW-5 is
consistent in material particulars. As long as the inconsistencies do not
affect the reliability of material particulars of the evidence, which
brings home the guilt of the Appellant, in our opinion, much
importance cannot be given to the minor discrepancies.
24. The submission of the learned Counsel for the Appellant
in respect of delay in lodging the FIR cannot be accepted, as the FIR
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has been lodged on 16.08.2011 at 5:40 a.m. and as such, it cannot be
said that there was any delay in lodging the FIR.
25. The learned counsel for Appellant has raised an alternative
plea i.e. for the reduction of the offence from Section 302 to Section
304 Part-II. The learned counsel submits that the case of the Appellant
falls within Exception 1, to Section 300 of the IPC. The same is
reproduced herein-below:
"Exception 1. - When culpable homicide is not murder.-
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
mistake or accident.
The above exception is subject to the following provisos:
First.- That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
Secondly.- That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly.- That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
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Explanation.- Whether the provocation was grave and
sudden enough to prevent the offence from amounting to
murder is a question of fact."
26. Evidence of PW-2 and PW-5 reveals that after the quarrel
about the mobile phone, the Appellant had gone to fetch the keys of
the truck and Utpal had gone to sleep in the truck. Considering the
fact that Appellant had assaulted Utpal while he was asleep, it is not a
case of grave and sudden provocation so as to fall within the exception
I to Section 300 of IPC. As far as reliance placed by the learned
counsel appearing for the Appellant, on the judgment of Apex Court
in the case of State of Rajasthan vs. Shera Ram Alias Vishnu Dutta
(supra) is concerned, the facts of that case shows that the injuries
which were inflicted was the result of hurling of stone and in that
particular circumstance the Apex Court has held that the prosecution
has failed to prove the case beyond reasonable doubt, that such an
injury was sufficient in the ordinary course of caused to death. In our
opinion, the facts of the present case, are completely different,
inasmuch as Utpal was assaulted with a wooden block on the head,
chest and neck which was sufficient to cause injury in the ordinary
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course of nature, and therefore, the citation relied by the Appellant is
not applicable to the present case.
27. Learned counsel for the Appellant has also relied upon
judgment of the Apex Court in the case of Lavghanbhai Devjibhai
Vasava Vs. State of Gujarat (supra); and Gurmukh Singh vs. State of
Haryana (supra), which sets out the facts which are required to be
taken into consideration while deciding the question as to whether the
case falls under Section 302 or Section 304 Part-II of the IPC. The
judgment of the Apex Court in the case of Lavghanbhai Devjibhai
Vasava (supra) following the judgment in the case of Dhirendra Kumar
vs State of Uttarakhand (supra) has reproduced the parameters laid
down by the Apex Court in the case of Dhirendra Kumar (supra) in
paragraph 7, which are to be taken into consideration while deciding
the question as to whether a case falls under Section 302 IPC or
Section 304 IPC, as under:
"(a) The circumstances in which the incident took
place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken
from the spot;
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(d) Whether the assault was aimed on vital part of
body;
(e) The amount of the force used;
(f) Whether Utpal participated in the sudden fight;
(g) Whether there was previous enmity;
(h) Whether there was any sudden provocation;
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any
undue advantage or acted in the cruel or unusual
manner."
28. Considering the evidence on record, and, applying the
parameters set out in the aforesaid judgments of the Apex Court, we
find that Utpal was not assaulted in the heat of passion; that the
assault took place much after the quarrel between the Appellant and
Utpal; that the Appellant assaulted Utpal when he was asleep; that
there was an assault with force on the head, chest and neck of Utpal,
which was sufficient to cause death; and, that there was no grave and
sudden provocation to justify the reduction of the offence. In our
opinion, the facts of the case do not warrant reduction of the offence
from Section 302 to 304 Part-II.
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29. Considering the aforesaid, we are of the opinion, that the
prosecution has established the guilt of the Appellant beyond
reasonable doubt by ocular evidence, which is duly corroborated by
documentary evidence. We do not find any infirmity in the impugned
judgment and order dated 31.07.2013 passed by the learned Sessions
Court in Sessions Case No.103 of 2012 and accordingly, uphold the
conviction and sentence imposed by the impugned judgment and
order.
30. Accordingly, we pass the following order:
ORDER
The Criminal Appeal No.79 of 2014 is dismissed and
disposed of accordingly.
SHARMILA U. DESHMUKH, J. REVATI MOHITE DERE, J.
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