VITTHAL Vs. THE STATE OF MAHARASHTRA
LAWS(BOM)-2013-10-290
HIGH COURT OF BOMBAY
Decided on
October 22,2013
VITTHAL
Appellant
VERSUS
THE STATE OF MAHARASHTRA
Respondents
JUDGEMENT
-
(1.)The Appellant/Original Accused Nos. 1, 2, 3 and 6, who stand convicted for an offence punishable under Section 302 r/w. 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs. 5,000/- in default of which to undergo further R.I. for one year, by the 1st Ad-hoc Additional Sessions Judge, Sewree, Mumbai, by Judgment dated 5.10.2007, in Sessions Case No. 446 of 2004 and Sessions Case No. 106 of 2005, by this Appeal question the correctness of their conviction and sentence. Facts in brief as are necessary for the decision of this Appeal may briefly be stated thus:--
"PW-6 ASI Kondiba Malhari Thengil, who, on 3.4.2004, was attached to the Mulund Police Station and was present in the Hindusthan Police Chowky, was informed by two persons about assault on Yogesh Rathod. PW-6 ASI Thengil, therefore, accordingly went with those two persons in an auto-rickshaw to the scene of the incident which was in front of Gidwani High School near Gurunanak Grocery Stores. PW-6 ASI Thengil, who had been informed about incident by PW-4 Suraj and one Rohidas. When PW-6 ASI Thengil alongwith Suraj and Rohidas reached the scene of the incident, he had noticed one person lying with injuries in the compound of Yuvak Mitra Mandal. PW-4 Suraj informed PW-6 ASI Thengil that the name of the injured was Yogesh Rathod. With the help of PW-4 Suraj and Rohidas, PW-6 ASI Thengil removed the injured to the Mulund General Hospital where the Medical Officer pronounced Yogesh as dead. The Police Officer, who was on duty at the Mulund General Hospital, accordingly informed about the death of Yogesh to the Mulund Police Station.
PW-18 PSI Dinkar Krishna Chandankar, who, on 3.4.2004, was attached to Mulund Police Station, received information on telephone from Police Constable Nagare about injured Yogesh being brought in the Hospital by PW-4 Suraj and PW-6 ASI Thengil. He was also informed about the death of the injured. After receiving the said information, he made an entry in the station diary and accordingly, proceeded to the Mulund General Hospital alongwith PW-17 PI Mane. At the hospital, PW-18 PSI Chandankar met PW-4 Suraj and accordingly, recorded statement of PW-4 Suraj at Exhibit 43. On the basis of the said statement, offence vide Crime No. 78 of 2004 and ADR No. 31 of 2004 was registered. The further investigation was then handed over to PW-17 PI Mane.
PW-17 PI Mane, who was also attached to the Mulund Police Station, was informed by PW-18 PSI Chandankar about the information received by him. PW-17 PI Mane accompanied PW-18 PSI Chandankar to the hospital. On the basis of the statement of PW-4 Suraj, an offence vide Crime No. 78 of 2004 and ADR No. 31 of 2004 was registered. The investigation was entrusted to PW-17 PI Mane. An inquest panchnama of the dead body of deceased Yogesh was drawn in the presence of panchas at Exhibit 25. Photographs of the dead body were taken by PW-14 Gulab Shah. The blood stained clothes were then handed over in the possession of Police Constable by drawing the panchnama at Exhibit 26. PW-17 PI Mane then proceeded to the scene of the incident accompanied by PW-4 Suraj and the scene of the incident panchnama was accordingly drawn in the presence of panchas at Exhibit 34. From the scene of the incident, sample of blood stained mud and ordinary mud, brick pieces, pieces of tiles, cement and wooden pieces, a pair of rubber and a pair of plastic chappals was seized. Statement of witnesses were recorded.
On 4.4.2004, statements of other witnesses were recorded and accused Vitthal, Rajkumar, Ravi and Prakash were taken in custody and brought to the Police Station. The accused were arrested in the presence of panchas under arrest panchnama at Exhibit 31. The clothes of the accused were seized in the presence of panchas and the clothes are Articles 'E' to 'L'. Since accused Vitthal had sustained an injury to his right hand, the accused were referred for medical examination at the Mulund Hospital. Accused No. 1 was examined by PW-15 Dr. Waghmare, who noticed one contused lacerated wound on the middle, ring and little finger on the palmer aspect. According to him, the age of the injury was more than 24 hours. PW-15 Dr. Waghmare accordingly issued the certificate at Exhibit 123.
On 6.4.2004, during custodial interrogation, accused Vitthal expressed his willingness to point out the place where his clothes and weapons were concealed by him. Accordingly, a memorandum was drawn in the presence of panchas at Exhibit 67. Accused Vitthal then led the Police and the panchas to a place in Vikhroli and pointed out one auto-rickshaw bearing registration No. MH-03-R-1528 and produced blood stained sword and blood stained shirt from the auto-rickshaw. The said sword and the clothes were seized under panchnama at Exhibit 67-A. The sword is Article 'O' while white shirt is Article 'W'. On the same day, at about 1.10 p.m. during custodial interrogation, accused Rajkumar expressed his willingness in the presence of panchas to point out the place where the weapon and clothes were concealed by him. Accordingly, a memorandum was drawn at Exhibit 68. Accused Rajkumar led the Police and the panchas and produced a blood stained chopper and a 'T' Shirt from one hut which were seized under seizure memorandum at Exhibit 68-A. On the same day at about 4.40 p.m., accused Ravi expressed his willingness to point out the weapon and the clothes which had been concealed by him. Accordingly, a memorandum was drawn at Exhibit 78. Accused Ravi led the Police and the Panchas and produced one blood stained knife and Khaki coloured pant and shirt from one room which were seized under seizure memorandum at Exhibit 78-A.
On 7.4.2004, jail custody remand was obtained for all the accused and on 8.4.2004 a test identification parade was conducted by PW-8 Ramniklal, a Special Executive Officer. PW-4 Suraj participated in the test identification parade and accordingly, identified accused Vitthal, Rajkumar and Ravi. Supplementary statement of PW-4 Suraj was also recorded. The memorandum of the test identification parade is at Exhibit 104. Subsequently, another test identification parade was conducted on 3.5.2004 and the memorandum of the test identification parade is at Exhibit 105.
On 18.4.2004, accused Yogesh and Vinod were arrested in the presence of panchas under arrest panchnama at Exhibit 134. On the same day, accused Yogesh expressed his willingness to point out the place where the weapons and clothes had been concealed by him. Accordingly, a memorandum was drawn in the presence of panchas at Exhibit 49. The accused Yogesh led the Police and the panchas and produced one blood stained knife and one shirt and one pant which were seized under seizure memorandum at Exhibit 49-A. On the same day, memorandum of accused No. 5 Vinod was drawn. However, since Vinod had been acquitted and the State has not filed any Appeal, we do not make any reference to the evidence in respect of Accused No. 5 Vinod.
Subsequently, on 22.4.2004, the other accused were arrested, who have been acquitted by the Trial Court. We, therefore, do not refer to the evidence which was collected during investigation against the acquitted accused. On 1.5.2004, statement of PW-12 Satyawan, an eye witness was recorded. On 7.5.2004, the seized property was referred to the Chemical Analyzer under requisition at Exhibit 145. Supplementary statements of other witnesses were recorded and the map of the scene of the incident was drawn at Exhibit 146. Statements of the witnesses under Section 164 were recorded and further to the completion of investigation, a charge-sheet against the accused was filed.
Postmortem on the dead body of deceased Yogesh was performed by PW-16 Dr. Bhalepat. PW-16 Dr. Bhalepat noticed the following external injuries:--
"1. Contused lacerated wound at right side of forehead, 10 x 1 cm above right eye brow, margins irregular, shape irregular.
2. Lacerated wound at right tempo parietal region of size 4 x 1 cm, margins were irregular.
3. Incise wound below right eye, size 6 x 2 cm, spindle shape, margins clean cut.
4. Incised wound at right ear at the region of pinna 4 x 2 cm margins clean cut.
5. Incised wound at right side of cheek, size 3 x 1 cm. Margins clean cut.
6. Contused lacerated wound at right elbow, of size 4 x 1.1/2 cm, margins irregular.
7. Stab wound at right side of chest, at the level of nipple, size 7 x 2 cm. Margins irregular.
8. Incised wound at posterior side of neck extending from right to left, size 15 x 4 cm, margins are clean cut.
9. Incised wound at posterior trum, below right scapula, 3 x 2 cm, spindle shape, margins clean cut.
10. Lacerated wound at left forehead, above brow of size 11 x 1 cm, margins are irregular, shape is irregular.
11. Incise wound at left ear extending to left cheek, 7 x 1.1/2, margins clean cut, shape spindle.
12. Stab wound at right side of chest, above nipple, of size 5 x 2 cm, margins irregular.
13. Stab wound over abdomen, above the amblicues of size 4 x 1 cm, margins are irregular, shape spindle.
14. Contused lacerated wound of left elbow of size 1 x 2 cm, margins irregular.
15. Incised wound at left thigh, above left knee of size 3 x 1 cm, margins clean cut with linear shape.
16. Lacerated wound at right palm, size 4 x 2 cm, margins irregular, shape irregular.
17. Multiple abrasion over left knee, reddish colour of veering size.
On internal examination he noticed the following internal injuries:--
"Subgalial haematoma at right tempo parietal region of size 6 x 2 cm, dark reddish colour. I have described the internal injuries in column No. 19 of postmortem report. I have also found the injuries on ribs, walls and cartridges, fracture of fourth rib with infiltration staining."
He therefore opined that all the injuries were anti mortem and according to him, death was "due to multiple injuries (lacerated incised and stab)". The postmortem report is at Exhibit 129.
(2.)On committal of the case to Court of Sessions, Trial Court, vide Exhibit 3 framed charge against the accused for offence punishable under Section 302 r/w. 34 of the Indian Penal Code and offence punishable under Section 135 of the Bombay Police Act. During trial, Original Accused No. 8 Jagdish died and accordingly, the trial stood abated against him. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case examined 18 witnesses. The Trial Court, upon appreciation of the evidence, convicted and sentenced the Appellants as aforestated.
(3.)In order to effectively deal with the submissions advanced before us by Mr. Niteen Pradhan, learned Counsel for the Appellants and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.
"PW-6 ASI Kondiba Malhari Thengil, who, on 3.4.2004, was attached to the Mulund Police Station and was present in the Hindusthan Police Chowky, was informed by two persons about assault on Yogesh Rathod. PW-6 ASI Thengil, therefore, accordingly went with those two persons in an auto-rickshaw to the scene of the incident which was in front of Gidwani High School near Gurunanak Grocery Stores. PW-6 ASI Thengil, who had been informed about incident by PW-4 Suraj and one Rohidas. When PW-6 ASI Thengil alongwith Suraj and Rohidas reached the scene of the incident, he had noticed one person lying with injuries in the compound of Yuvak Mitra Mandal. PW-4 Suraj informed PW-6 ASI Thengil that the name of the injured was Yogesh Rathod. With the help of PW-4 Suraj and Rohidas, PW-6 ASI Thengil removed the injured to the Mulund General Hospital where the Medical Officer pronounced Yogesh as dead. The Police Officer, who was on duty at the Mulund General Hospital, accordingly informed about the death of Yogesh to the Mulund Police Station.
PW-18 PSI Dinkar Krishna Chandankar, who, on 3.4.2004, was attached to Mulund Police Station, received information on telephone from Police Constable Nagare about injured Yogesh being brought in the Hospital by PW-4 Suraj and PW-6 ASI Thengil. He was also informed about the death of the injured. After receiving the said information, he made an entry in the station diary and accordingly, proceeded to the Mulund General Hospital alongwith PW-17 PI Mane. At the hospital, PW-18 PSI Chandankar met PW-4 Suraj and accordingly, recorded statement of PW-4 Suraj at Exhibit 43. On the basis of the said statement, offence vide Crime No. 78 of 2004 and ADR No. 31 of 2004 was registered. The further investigation was then handed over to PW-17 PI Mane.
PW-17 PI Mane, who was also attached to the Mulund Police Station, was informed by PW-18 PSI Chandankar about the information received by him. PW-17 PI Mane accompanied PW-18 PSI Chandankar to the hospital. On the basis of the statement of PW-4 Suraj, an offence vide Crime No. 78 of 2004 and ADR No. 31 of 2004 was registered. The investigation was entrusted to PW-17 PI Mane. An inquest panchnama of the dead body of deceased Yogesh was drawn in the presence of panchas at Exhibit 25. Photographs of the dead body were taken by PW-14 Gulab Shah. The blood stained clothes were then handed over in the possession of Police Constable by drawing the panchnama at Exhibit 26. PW-17 PI Mane then proceeded to the scene of the incident accompanied by PW-4 Suraj and the scene of the incident panchnama was accordingly drawn in the presence of panchas at Exhibit 34. From the scene of the incident, sample of blood stained mud and ordinary mud, brick pieces, pieces of tiles, cement and wooden pieces, a pair of rubber and a pair of plastic chappals was seized. Statement of witnesses were recorded.
On 4.4.2004, statements of other witnesses were recorded and accused Vitthal, Rajkumar, Ravi and Prakash were taken in custody and brought to the Police Station. The accused were arrested in the presence of panchas under arrest panchnama at Exhibit 31. The clothes of the accused were seized in the presence of panchas and the clothes are Articles 'E' to 'L'. Since accused Vitthal had sustained an injury to his right hand, the accused were referred for medical examination at the Mulund Hospital. Accused No. 1 was examined by PW-15 Dr. Waghmare, who noticed one contused lacerated wound on the middle, ring and little finger on the palmer aspect. According to him, the age of the injury was more than 24 hours. PW-15 Dr. Waghmare accordingly issued the certificate at Exhibit 123.
On 6.4.2004, during custodial interrogation, accused Vitthal expressed his willingness to point out the place where his clothes and weapons were concealed by him. Accordingly, a memorandum was drawn in the presence of panchas at Exhibit 67. Accused Vitthal then led the Police and the panchas to a place in Vikhroli and pointed out one auto-rickshaw bearing registration No. MH-03-R-1528 and produced blood stained sword and blood stained shirt from the auto-rickshaw. The said sword and the clothes were seized under panchnama at Exhibit 67-A. The sword is Article 'O' while white shirt is Article 'W'. On the same day, at about 1.10 p.m. during custodial interrogation, accused Rajkumar expressed his willingness in the presence of panchas to point out the place where the weapon and clothes were concealed by him. Accordingly, a memorandum was drawn at Exhibit 68. Accused Rajkumar led the Police and the panchas and produced a blood stained chopper and a 'T' Shirt from one hut which were seized under seizure memorandum at Exhibit 68-A. On the same day at about 4.40 p.m., accused Ravi expressed his willingness to point out the weapon and the clothes which had been concealed by him. Accordingly, a memorandum was drawn at Exhibit 78. Accused Ravi led the Police and the Panchas and produced one blood stained knife and Khaki coloured pant and shirt from one room which were seized under seizure memorandum at Exhibit 78-A.
On 7.4.2004, jail custody remand was obtained for all the accused and on 8.4.2004 a test identification parade was conducted by PW-8 Ramniklal, a Special Executive Officer. PW-4 Suraj participated in the test identification parade and accordingly, identified accused Vitthal, Rajkumar and Ravi. Supplementary statement of PW-4 Suraj was also recorded. The memorandum of the test identification parade is at Exhibit 104. Subsequently, another test identification parade was conducted on 3.5.2004 and the memorandum of the test identification parade is at Exhibit 105.
On 18.4.2004, accused Yogesh and Vinod were arrested in the presence of panchas under arrest panchnama at Exhibit 134. On the same day, accused Yogesh expressed his willingness to point out the place where the weapons and clothes had been concealed by him. Accordingly, a memorandum was drawn in the presence of panchas at Exhibit 49. The accused Yogesh led the Police and the panchas and produced one blood stained knife and one shirt and one pant which were seized under seizure memorandum at Exhibit 49-A. On the same day, memorandum of accused No. 5 Vinod was drawn. However, since Vinod had been acquitted and the State has not filed any Appeal, we do not make any reference to the evidence in respect of Accused No. 5 Vinod.
Subsequently, on 22.4.2004, the other accused were arrested, who have been acquitted by the Trial Court. We, therefore, do not refer to the evidence which was collected during investigation against the acquitted accused. On 1.5.2004, statement of PW-12 Satyawan, an eye witness was recorded. On 7.5.2004, the seized property was referred to the Chemical Analyzer under requisition at Exhibit 145. Supplementary statements of other witnesses were recorded and the map of the scene of the incident was drawn at Exhibit 146. Statements of the witnesses under Section 164 were recorded and further to the completion of investigation, a charge-sheet against the accused was filed.
Postmortem on the dead body of deceased Yogesh was performed by PW-16 Dr. Bhalepat. PW-16 Dr. Bhalepat noticed the following external injuries:--
"1. Contused lacerated wound at right side of forehead, 10 x 1 cm above right eye brow, margins irregular, shape irregular.
2. Lacerated wound at right tempo parietal region of size 4 x 1 cm, margins were irregular.
3. Incise wound below right eye, size 6 x 2 cm, spindle shape, margins clean cut.
4. Incised wound at right ear at the region of pinna 4 x 2 cm margins clean cut.
5. Incised wound at right side of cheek, size 3 x 1 cm. Margins clean cut.
6. Contused lacerated wound at right elbow, of size 4 x 1.1/2 cm, margins irregular.
7. Stab wound at right side of chest, at the level of nipple, size 7 x 2 cm. Margins irregular.
8. Incised wound at posterior side of neck extending from right to left, size 15 x 4 cm, margins are clean cut.
9. Incised wound at posterior trum, below right scapula, 3 x 2 cm, spindle shape, margins clean cut.
10. Lacerated wound at left forehead, above brow of size 11 x 1 cm, margins are irregular, shape is irregular.
11. Incise wound at left ear extending to left cheek, 7 x 1.1/2, margins clean cut, shape spindle.
12. Stab wound at right side of chest, above nipple, of size 5 x 2 cm, margins irregular.
13. Stab wound over abdomen, above the amblicues of size 4 x 1 cm, margins are irregular, shape spindle.
14. Contused lacerated wound of left elbow of size 1 x 2 cm, margins irregular.
15. Incised wound at left thigh, above left knee of size 3 x 1 cm, margins clean cut with linear shape.
16. Lacerated wound at right palm, size 4 x 2 cm, margins irregular, shape irregular.
17. Multiple abrasion over left knee, reddish colour of veering size.
On internal examination he noticed the following internal injuries:--
"Subgalial haematoma at right tempo parietal region of size 6 x 2 cm, dark reddish colour. I have described the internal injuries in column No. 19 of postmortem report. I have also found the injuries on ribs, walls and cartridges, fracture of fourth rib with infiltration staining."
He therefore opined that all the injuries were anti mortem and according to him, death was "due to multiple injuries (lacerated incised and stab)". The postmortem report is at Exhibit 129.
(2.)On committal of the case to Court of Sessions, Trial Court, vide Exhibit 3 framed charge against the accused for offence punishable under Section 302 r/w. 34 of the Indian Penal Code and offence punishable under Section 135 of the Bombay Police Act. During trial, Original Accused No. 8 Jagdish died and accordingly, the trial stood abated against him. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case examined 18 witnesses. The Trial Court, upon appreciation of the evidence, convicted and sentenced the Appellants as aforestated.
(3.)In order to effectively deal with the submissions advanced before us by Mr. Niteen Pradhan, learned Counsel for the Appellants and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.
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