On this aspect, in our considered view even non
confessional part of the FIR can be used against the accused as
per the provisions of Section 8 of the Evidence Act so far as the
conduct of the person is concerned
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.524 OF 2003
1. Dhondiram Balu Dhotre,
Versus
The State of Maharashtra
....
CORAM : NARESH H. PATIL, &
A. R. JOSHI, JJ.
DATE OF PRONOUNCING
OF JUDGMENT : 28TH JANUARY, 2013
Citation;2013 ALL M R(cri)2032
1. Heard rival arguments on this Criminal Appeal
preferred by the appellants/orig.accused Nos.1, 2, 4 & 5
challenging the judgment and order of conviction dated
17.2.2003 passed by the II Additional Sessions Judge,
Pandharpur in Sessions Case No.64 of 2000. By the impugned
judgment and order, the appellants/orig.accused Nos.1, 2, 4 & 5
were convicted for the offence punishable under Sections 147,
148, 302 read with 149 and 324 read with 149 of IPC. The
major punishment inflicted on the said appellants/accused is
punishable under Section 302 read with 149 of IPC whereby they
were sentenced to suffer imprisonment for life and to pay fine of
Rs.500/ each, in default to suffer further imprisonment for a
period of two months each. They were sentenced to suffer other
minor sentences for other offences. Each of the substantive
sentences were directed to run concurrently. By the said
impugned judgment and order, all the appellants/accused were
acquitted of the offence punishable under Section 396 of IPC and
also of the offence punishable under Section 135 read with
Section 37(1) of the Bombay Police Act.
2. Being aggrieved by the said judgment and order,
appellants/accused Nos.1, 2, 4 & 5 preferred the present appeal.
During pendency of the appeal, appellant Nos.1 & 4 were on
bail. However, during pendency of the appeal appellant
No.4/original accused No.5 died leaving present three appellants
i.e. original accused Nos.1, 2 & 4 in the matter.
3. The case of the prosecution, in nutshell, is as under :
In the incident of assault which took place on 9:30 p.m.
on 10.3.2000 at Bhadule Square, Pandharpur Town, one Dilip
Pawar was murdered. He was exmember of the Pandharpur
Municipal Council and husband of the then President of the said
Council. Allegedly there was business and political rivalry
between him and appellants/accused. During the incident, the
appellants along with a juvenile appellant / original accused
No.3, took part in the said assault. The appellants/ orig.accused
Nos.1, 4 & 5 are brothers and they are related to the wife of
deceased i.e. PW3 Surekha Pawar. They are sons of the paternal
aunt of PW3 Surekha Pawar. Accused No.2 is son of accused
No.5, and the juvenile offender i.e. accused No.3 is the nephew
of accused Nos.1 & 5. They all are residents of the same area
near Bhadule Square, Pandharpur where the victim and his
family members were also residing.
4. On the night of the incident, the victim had left his
house for shaving his beard. He met PW1 Talat Shaikh and
both were chitchatting. They arrived at Bhadule square and met
other persons. That time, appellant/accused No.1 was sitting
outside one closed shop. He called upon and caught hold of the
shirt collar of the victim by his neck and started abusing him.
Talat Shaikh (PW1) and one Shahaji intervened. However,
appellant/accused No.1 gave a blow to Shahaji. Thereafter
appellant/accused No.1 took out a chopper. There was hue and
cry and hearing shouts of accused No.1, his brothers
(orig.accused Nos.4 & 5) and nephew (orig.accused No.2) and
the juvenile offender Atish, gathered there.
Appellant/orig.accused No.4 was armed with sword. Accused
No.2 and juvenile offender were armed with choppers. Accused
No.5 was armed with stick. All the appellants/accused and the
juvenile offender assaulted the victim Dilip Pawar by means of
weapons. By that time, PW3 Surekha Pawar wife of the victim,
rushed to the spot and intervened the assault.
Appellant/accused No.1 pushed her aside. As PW1 Talat Shaikh
had intervened, he was assaulted by appellant/accused No.2 by
means of chopper causing bleeding injury on his head. Due to
the severe assault on various parts of the body, the victim Dilip
fell unconscious on the road. That time, appellant
No.4/orig.accused No.5 took up a tile lying on the road and hit
the victim on his head. Thereafter all the appellants ran away.
One autorickshaw was stopped and the injured Dilip was taken
to Municipal Council Hospital by PW1 & PW3. History was
narrated to the Medical Officer (PW8) Dr. Sudhir Deshpande.
He examined the injured and noted the injuries and made entries
in the medical papers. He referred the victim to Civil Hospital,
Solapur and send a letter to the Pandharpur Town Police Station.
On medical advice victim Dilip was taken to Civil Hospital,
Solapur where on duty Medical Officer declared him dead on
admission.
5. Meanwhile PW10 PSI Rohidas Kamble who has
received anonymous telephone call about the incident of assault,
had rushed to the Municipal Council Hospital at Pandharpur and
thereafter reached the Civil Hospital, Solapur by 12:00
midnight. He contacted PW3 Surekha Pawar and recorded her
statement and forwarded it along with his report through police
constable Kadam to Pandharpur Town Police Station for
registration of offence.
6. During the investigation, inquest panchnama was
conducted. Then the dead body of Dilip Pawar was sent for
postmortem. The cause of death was multiple injuries on head,
face and both upper limbs with fracture of skull and subdural
hematoma with contusion on brain and fracture of radiudulna
left.
7. In the meantime the news regarding death of ex
municipal Councilor and husband of sitting President of
Municipal Council, spread in Pandharpur city and atmosphere
became tense. Hence PW12 Netaji Dange called PW10 PSI
Rohidas Kamble to Pandharpur. On receiving the statement of
PW3 Surekha Pawar, an offence was registered at C.R. No.42 of
2000 at Pandharpur police station against the appellants/accused
and also against the juvenile offender for the offence of murder
and rioting armed with deadly weapons. The offence was so
registered at 2:30 a.m. on 11th March, 2000 and further
investigation was carried out by PW12 Netaji Dange who had in
the meantime visited the place of assault at Bhadule square and
deployed police force for law and order maintenance.
8. It is also case of the prosecution that while PW10 PSI
Rohidas Kamble had left Pandharpur police station for attending
the hospital, accused No.2 and one juvenile offenderAtish
attended the Pandharpur town police station with blood stained
chopper in the hand of appellant/accused No.2. Police Head
Constable PW11 Gurling Kamble seized the said chopper under
panchnama in presence of two witnesses and sent both the
accused No.2 and juvenile offenderAtish for medical
examination to Municipal Council Hospital, Pandharpur and they
were examined and treated by PW8 Dr. Sudhir Deshpande.
9. On 11.3.2000 spot panchnama was conducted at about
6:00 a.m. at Bhadule square and from that place one chopper
and two pieces of tiles stained with blood along with pair of
slippers and clothes, were seized. On the same day,
appellants/accused Nos.1, 2, 4 and juvenile offenderAtish were
arrested. The clothes of the victim Dilip Pawar were taken
charge of under the panchnama. On 12.3.2000 the statements
of the witnesses were recorded and on that day appellant
No.4/orig.accused No.5 was put under arrest. The said appellant
No.4/orig.accused No.5 is since deceased as he died during
pendency of the appeal.
10. It is also case of the prosecution that on 14.3.2000
appellant/accused No.1 made a statement in presence of two
panch witnesses including PW7 Pandurang Jadhav and
subsequently at his instance one gold chain was recovered from
his house. On 16.3.2000 appellant/orig.accused No.4 made a
voluntary statement in presence of two panch witnesses
including PW4 Mahesh Tendulkar, and at his instance blood
stained sword and chopper were recovered which were
concealed under the bushes of cactus situate by the side of
Pandharpur–Sangola road. During investigation, blood samples
of the accused persons were collected. The seized articles were
sent for the chemical analysis and on completion of
investigation chargesheet was filed against the
appellants/accused and the case was committed to the Court of
Sessions.
11. All the appellants/accused pleaded not guilty to the said
charge. Their defence is that of total denial and false
implication. According to them, the victim was a bootlegger and
was a known goonda of the said locality and had political
connections. It is also defence that due to activities of victim, he
had number of enemies and as such on the relevant night, he
was assaulted by some unknown persons and they could not be
traced out by the police. Police have falsely implicated the
appellants and other coaccused. No defence evidence is
produced during the trial.
12. During the trial, all the present appellants/accused and
juvenile offender were before the trial Court and at the time of
framing of the charge, juvenile offender – Atish preferred an
application for treating him differently as per the provisions of
the Juvenile Justice (Care and Protection of Children) Act, 2000.
Said application was heard and directions were given by the trial
Court that the original accused No.3 Atish be treated as a
juvenile and be dealt with according to law. Hence the case
against him was sent to the appropriate Court i.e. Juvenile
Justice Board, Solapur. Consequently the present
appellants/orig.accused Nos.1, 2, 4 & 5 were tried and convicted
by the impugned judgment and order.
13. In order to substantiate the charges leveled against the
appellants/accused, the prosecution examined 12 witnesses. Out
of them, PW1 Taulat Shaikh, PW2 Salim Shaikh and PW3
Surekha Pawar are the eye witnesses. PW4 Panch Mahesh
Tendulkar is on the aspect of memorandum statement of
appellant/accused No.4 and recovery of sword and chopper at
his instance. PW5 is panch Prakash Musale and he is on the
aspect of recovery of clothes of all the five accused under the
panchnama (Exh.43). PW6 one Sunil Patil is the jeweler who
identified the gold chain which was sold to PW3 and which the
victim was wearing on the night of the incident and which was
misplaced / stolen during the incident. PW7 is panch witness
Pandurang Jadhav on the aspect of memorandum statement of
appellant/accused No.1 and subsequent recovery of gold chain
from his house under the panchnama. PW8 is Dr. Sudhir
Deshpande who examined PW1 and victim and also examined
the appellants/accused Nos.1, 2 & juvenile offender (accused
No.3) at Hospital at Pandharpur. He examined eye witness PW1
Talat Shaikh and made entry to that effect and issued certificate.
However, he did not give any treatment to this witness as said
witness had left the hospital without informing the duty staff.
PW9 is another doctor by name Dr.Yogesh Kokadwar from Civil
Hospital, Solapur. He examined eye witness Taulat Shaikh (PW
1) on the night between 10th & 11th March, 2000 at about 12:15
hours. PW10 is PSI Rohidas Kamble from Pandharpur Town
Police Station. PW11 is police head constable Gurling Kamble
again attached to Pandharpur Town Police Station and PW12 is
Police Inspector Netaji Dange attached to Pandharpur Town
Police Station and who took over the investigation in the matter.
14. During the arguments, following points were raised on
behalf of the appellants/accused challenging the judgment and
order. The main thrust of the argument was on the alleged
deficiencies in the investigation by the police and partisan act on
the part of the Pandharpur police in order to help then Mayor of
Pandharpur Municipal Council PW3 Surekha Pawar. Much is
argued mentioning the conduct of the police officers in not
recording the information received on telephone regarding
commission of cognizable offence at the earliest point of time
and subsequently recording the statement of PW3 and treating
as First Information Report (Exh.36). The points which were
raised challenging the judgment and order, are narrated
hereunder :
(i) firstly, the Doctor who performed the postmortem on
the dead body has not been examined and as such the
evidence of prosecution is lacking on the aspect as to how
the death had occurred and whether the injuries
sustained by the victim were sufficient to cause the death
in the ordinary course;
(ii) secondly, there was no occasion for PW8 Dr. Sudhir
Deshpande to opine as to whether the injuries sustained
by the victim as observed by him when the victim was
alive were sufficient to cause death in the ordinary course.
In other words such substantive evidence of PW8 as
appearing in his evidence cannot be taken as furthering
the case of prosecution regarding the immediate cause of
death was the injuries sustained by the victim.
(iii) thirdly, Exh.36 which is allegedly treated as First
Information Report being the statement of Surekha Pawar
cannot be treated as First Information Report and as such
it has only the value at par with the statement under
Section 161 of Cr.P.C.. This is so because of the starting of
the investigation as to visiting the spot and conducting the
scene of offence panchnama etc. prior to registering the
offence against the appellants and other coaccused;
(iv) fourthly, the substantive evidence of the alleged eye
witness Taulat Shaikh (PW1) on the aspect as to
availability of the electric poll and availability of the light
during the incident is entirely an omission. This being the
vital aspect so far as the identity of the
appellants/accused is concerned, the said alleged eye
witness cannot be treated as a witness seeing the
appellants/accused assaulting the victim on that relevant
night;
(v) fifthly all the injuries sustained by the victim were of
superficial nature and there is nothing brought on record
by way of examining the doctor who had performed the
postmortem that they were sufficient to cause death in
the natural course of events.
15. Now coming to the point Nos.(i), (ii) & (v) raised on
behalf of the appellants, it must be mentioned that the
postmortem report regarding the deceased was admitted by the
defence during the trial. Moreover PW8 Dr. Sudhir Deshpande
was the medical officer at Pandharpur who at the first
opportunity examined the victim and noted down the injuries
sustained by the victim. Said injuries noteddown by PW8 are
mentioned hereunder for the sake of ready reference. Moreover
the observations of the said PW8 and his opinion regarding the
said injuries is also detailed below.
“5. On examination of Dilip Pawar, I noticed the following
injuries.
1. Incised wound, size 22 cm x ½ cm at
right side of face, oblique, bowing from right
fronto parital region, downwards extending
right laterally to right eye over right maxila
bone deep.
2. Incised wound, 10 cm x ½ cm
oblique, 1 cm right lateral and parallel to
injury no.1.
3. Incised wound, size 9 cm x ½ cm,
over right forearm, lower 1/3rd posterior
aspect, bone deep;
4. Incised wound, size 8 cm x ½ cm
oblique, crossing vertically at injury no.3.
5. Deep incised wound, size 10 cm x ½
cm oblique, left wrist joint, posterior aspect,
bone deep with deformity of left wrist joint.
6. Incised wound, size 8 cm x 1 cm
oblique, left ipital region, bone deep.
7. Incised wound, size 9 cm x 1 cm
oblique, right occipital region, bone deep.
8. Incised wound, size 8 cm x 1 cm
oblique right lateral at injury no.7, bone
deep.
6. The above described injury No.1, 2, 6, 7 and 8
were on vital parts. These injuries were sufficient in
ordinary course of nature to cause death. ….......”
Much is argued on the said expert opinion given by
PW8 Dr. Sudhir Deshpande as referred above on the aspect of
sufficiency of the injuries in ordinary course of nature to cause
death. It is argued by learned Senior Counsel on behalf of the
appellants that there was no occasion for PW8 Dr. Sudhir
Deshpande to opine as to whether the injuries observed by him
on the victim were sufficient in the ordinary course of nature to
cause death. This was more so, further argued, when the victim
was then still alive when he was examined by PW8 Dr. Sudhir
Deshpande. On this aspect, it is evident that the substantive
evidence of PW8 Dr. Sudhir Deshpande was recorded when the
matter was put to trial and in fact the victim was dead
immediately on the same day of the incident as he was declared
dead on admission at Civil Hospital, Solapur. It must not be lost
sight of the fact that said PW8 Dr. Sudhir Deshpande is a
medical practitioner and had occasion to observe the injuries
sustained by the victim as detailed above. It was his expert
opinion appearing in his substantive evidence in para No.6 as
mentioned above on the sufficiency or otherwise of the injuries
causing death of the victim. Though it is a factual position that
the medical officer who performed the postmortem has not been
examined in the matter, still it cannot be lost sight of that the
said postmortem report was admitted on behalf of the defence
and that PW8 Dr. Sudhir Deshpande is the medical officer who
observed the injuries on the victim at the first opportunity and
then he opined on the effect of said injuries when said victim
had died even prior to admitting him in the Civil Hospital,
Solapur. In our considered view, there is nothing to doubt the
case of the prosecution in view of the evidence of PW8 Dr.
Deshpande that the injuries sustained by the victim were vital
and in fact he died immediately within few hours of the assault.
Consequently the aforesaid point Nos.(i), (ii) & (v), cannot be
taken as a mitigating circumstance against the prosecution.
16. Now coming to the point No.(iii) raised as to Exh.36,
statement of PW3 Surekha Pawar, not to be treated as a first
information report in the strict sense of the meaning of the FIR,
it is seen that the trial Court had accepted this objection and still
considered the effect of said Exh.36, being statement under
Section 161 of Cr.P.C.. Otherwise also in our considered view a
cryptic telephonic information cannot get the character of the
FIR and in that event even if it is accepted that the Pandharpur
police station received intimation over telephone regarding the
incident of assault, such intimation to the police cannot be
treated as First Information Report in the strict sense. On this
aspect, much is argued by the learned Senior Counsel for the
appellants that no station diary entry has been produced by
Pandharpur police regarding receipt of actual information. Much
emphasis was placed on such nonproduction of station diary
and it is argued that only because there was no names of
assailants given over the telephone by the informant, such entry
is not forthcoming. It is apparent that in the present matter prior
to recording the statement of PW3 Surekha Pawar and sending
it to Pandharpur police station for registration of offence, at least
part of the investigation has already started inasmuch as
appellant No.2 and juvenile offender (accused No.3) were taken
in custody by the police at Pandharpur Town police station when
apparently they appeared at the police station when
appellant/accused No.2 was holding a blood stained knife in his
hand. Though certain part of the investigation/enquiry
procedure was started by the police prior to treating Exh.36 as
First Information Report, this fact in itself cannot be treated as
such an illegality as to doubt the case of prosecution and to
throw away the substantive evidence of PW3 Surekha Pawar.
Otherwise also the instances of belated formal recording of the
First Information Report after starting of the investigation, are
not uncommon. Considering the substantive evidence of
prosecution witnesses, mainly of PWs1, 3, 10, 11 & 12, it cannot
be said that there is any material defect in the case of
prosecution so far as initiation of the proceedings against the
appellants/accused. In the result, this third objection raised on
behalf of the appellants shall not sustain.
17. The fourth point canvassed regarding omission in the
substantive evidence of PW1 Talat Shaikh on the aspect of
availability of sufficient electric light on the spot during the
incident, we have gone through the reasoning given by the trial
Court. It is specifically mentioned and rightly so that said PW1
Talat Shaikh was knowing the appellants/accused and they were
not stranger to him. It has appeared in his substantive evidence
in the notes of evidence in para2 that he know all the four
accused and Atish (juvenile offender) since they and said PW1
are the residents of the same lane at Pandharpur. He had further
stated that all the three accused and Atish were residing opposite
the house of Dilip Pawar (the victim) at the time of incident. He
had also deposed that there was enmity between Dilip Pawar and
“Dhotre's” from 10 years. The word “Dhotre's” signify the
accused persons who are having surname “Dhotre”. Considering
this substantive evidence of PW1 Talat Shaikh as to his well
acquaintance with the appellants/accused, it is now insignificant
whether his substantive evidence is affected by omission on the
aspect as to presence of electric light. According to this witness
he was immediately present with the victim Dilip Pawar and had
witnessed the assault in the close proximity. Not only that but he
had also sustained severe injuries. At the cost of repetition, it
must be mentioned that though initially he attended the hospital
at Pandharpur and, he left without informing the staff on duty
later on the same midnight, he attended the Civil Hospital,
Solapur and was examined and treated by PW9 Dr. Yogesh
Kokadwar. Following injury was observed on his person by the
attending doctor. Said injuries are “Incised wound over mid
frontal region size 2 inch x ½ inch.”. According to the doctor's
opinion the injury was caused by sharp edged weapon and the
age of injury was within 24 hours. Considering this factual
position and accepting that said PW1 had also sustained injury
during the incident of assault on the victim, no doubt can be
entertained as to said PW1 identifying the appellants/accused.
In the result, this fourth objection also shall not sustain.
18. In summing up, we have observed that the substantive
evidence of PW1 & PW3 coupled with the expert evidence of
Doctors PW8 & PW9 is of such a overwhelming character so as
to prove the guilt of the appellants/accused for the offence of
murder, beyond reasonable doubt.
19. Prior to parting with this judgment, the last submission
advanced on behalf of the appellants/accused is required to be
mentioned. It is alternatively argued that if the
appellants/accused are held guilty for the assault on the victim,
the injuries were of such a superficial nature not to cause death
in the ordinary course of nature. On this aspect, reference is
required to be made to the injuries observed by the attending
doctor PW8 Dr. Sudhir Deshpande, as detailed above, so also
the injuries mentioned in the postmortem report Exh.30 which is
an admitted document. There is a fracture of right maxillary
bone vertical – as mentioned in injury No.2 in column No.17 of
the postmortem report. So also there is fracture of left radius
ulna. In fact there are almost 20 injuries detailed in the column
No.17 of the postmortem report (Exh.30). It is significant to
note the observations as to the probable cause of death
appearing in the postmortem report. It is mentioned as multiple
chop wounds on the head, face and both upper limbs with
fracture of skull with subdural haematoma with contusion on
brain with fracture radius/ulna left. We have also observed that
on the said Exh.30, on the last page there is an endorsement
showing the order passed by the trial Court to the effect
“exhibited as per Section 294 of Cr.P.C.”
20. Considering in totality the effect of said evidence of
prosecution as to the injuries caused to the victim and probable
cause of death and mainly considering the substantive evidence
of PW8 Dr. Sudhir Deshpande in our considered view even the
last submission is not acceptable.
21. During the arguments, various authorities are cited
before us on behalf of the appellants/accused. On the aspect of
appreciation of the evidence of an eye witness, an unreported
judgment is cited in the matter of Criminal Appeal No.114 of
2008 (Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra)
decided by the Hon'ble Apex Court . In our view, whether or not
a particular witness is to be accepted as trustworthy or not, is
dependent on the facts and circumstances of the particular case.
In our considered view, the substantive evidence of PW1 & PW3
cannot be doubted though it is strongly argued that they are
interested witnesses and further that PW3 was then Mayor of
Pandharpur Town and was an influential person capable of
dictating the terms with local police station.
22. Another authority is cited in the matter of Bheru
Singh s/o. Kalyan Singh Vs. State of Rajasthan, reported in
(1994) 2 SCC 467. The contents in paragraph Nos.15, 16 & 17
of the said authority were emphasized by the learned Senior
Counsel for the appellants mentioning that the confessional FIR
lodged by the accused is not admissible in the evidence as hit by
Section 25 of the Evidence Act and it is acceptable only to the
extent permissible under Section 27 of the said Act. This
authority was placed before us in order to argue that though the
appellant/accused No.2 and juvenile offender (accused No.3)
themselves approached the Pandharpur police station
immediately after the incident of assault and after certain
statements were made by them incriminating them with the
offence of assault, such statements are hit by Section 25 of the
Evidence Act. On this aspect, in our considered view even non
confessional part of the FIR can be used against the accused as
per the provisions of Section 8 of the Evidence Act so far as the
conduct of the person is concerned. In any event, even the
presence of appellant/accused No.2 and juvenile offender
immediately after the assault is definitely a circumstance
showing the involvement of the said accused in the incident of
assault.
23. The third authority cited before us is in the matter of
Niranjan Panja Vs. State of West Bengal reported in (2010) 6
SCC 525. By taking shelter of this authority, it is argued that the
major discrepancies in the prosecution evidence are fatal to the
prosecution. In our considered view, there is nothing in the
substantive evidence of the main eye witnesses PW1 & PW3 so
as to accept the submission on behalf of the appellants that there
are no material discrepancies going to the root of the matter.
Even when PW2 another eye witness had turned hostile to the
case of prosecution on the actual assault on the victim at the
hands of the appellants, still the presence of the appellants and
assault on the victim are the facts established through his
evidence. In other words, it must be said that there are no any
material discrepancies in the case of the prosecution so as to
negate its case and to come to the different conclusion than that
arrived at by the trial Court.
24. In view of the above, it must be said that the
prosecution has proved the charges against the
appellants/accused for which they have been convicted vide the
impugned judgment and order. Consequently there is no merit
in the appeal and the same is accordingly disposed of with
following order :
:: O R D E R ::
[i] Criminal Appeal No.524 of 2003 stands dismissed.
(A. R. JOSHI, J.) (NARESH H. PATIL, J.)
Print Page
confessional part of the FIR can be used against the accused as
per the provisions of Section 8 of the Evidence Act so far as the
conduct of the person is concerned
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.524 OF 2003
1. Dhondiram Balu Dhotre,
Versus
The State of Maharashtra
....
CORAM : NARESH H. PATIL, &
A. R. JOSHI, JJ.
DATE OF PRONOUNCING
OF JUDGMENT : 28TH JANUARY, 2013
Citation;2013 ALL M R(cri)2032
1. Heard rival arguments on this Criminal Appeal
preferred by the appellants/orig.accused Nos.1, 2, 4 & 5
challenging the judgment and order of conviction dated
17.2.2003 passed by the II Additional Sessions Judge,
Pandharpur in Sessions Case No.64 of 2000. By the impugned
judgment and order, the appellants/orig.accused Nos.1, 2, 4 & 5
were convicted for the offence punishable under Sections 147,
148, 302 read with 149 and 324 read with 149 of IPC. The
major punishment inflicted on the said appellants/accused is
punishable under Section 302 read with 149 of IPC whereby they
were sentenced to suffer imprisonment for life and to pay fine of
Rs.500/ each, in default to suffer further imprisonment for a
period of two months each. They were sentenced to suffer other
minor sentences for other offences. Each of the substantive
sentences were directed to run concurrently. By the said
impugned judgment and order, all the appellants/accused were
acquitted of the offence punishable under Section 396 of IPC and
also of the offence punishable under Section 135 read with
Section 37(1) of the Bombay Police Act.
2. Being aggrieved by the said judgment and order,
appellants/accused Nos.1, 2, 4 & 5 preferred the present appeal.
During pendency of the appeal, appellant Nos.1 & 4 were on
bail. However, during pendency of the appeal appellant
No.4/original accused No.5 died leaving present three appellants
i.e. original accused Nos.1, 2 & 4 in the matter.
3. The case of the prosecution, in nutshell, is as under :
In the incident of assault which took place on 9:30 p.m.
on 10.3.2000 at Bhadule Square, Pandharpur Town, one Dilip
Pawar was murdered. He was exmember of the Pandharpur
Municipal Council and husband of the then President of the said
Council. Allegedly there was business and political rivalry
between him and appellants/accused. During the incident, the
appellants along with a juvenile appellant / original accused
No.3, took part in the said assault. The appellants/ orig.accused
Nos.1, 4 & 5 are brothers and they are related to the wife of
deceased i.e. PW3 Surekha Pawar. They are sons of the paternal
aunt of PW3 Surekha Pawar. Accused No.2 is son of accused
No.5, and the juvenile offender i.e. accused No.3 is the nephew
of accused Nos.1 & 5. They all are residents of the same area
near Bhadule Square, Pandharpur where the victim and his
family members were also residing.
4. On the night of the incident, the victim had left his
house for shaving his beard. He met PW1 Talat Shaikh and
both were chitchatting. They arrived at Bhadule square and met
other persons. That time, appellant/accused No.1 was sitting
outside one closed shop. He called upon and caught hold of the
shirt collar of the victim by his neck and started abusing him.
Talat Shaikh (PW1) and one Shahaji intervened. However,
appellant/accused No.1 gave a blow to Shahaji. Thereafter
appellant/accused No.1 took out a chopper. There was hue and
cry and hearing shouts of accused No.1, his brothers
(orig.accused Nos.4 & 5) and nephew (orig.accused No.2) and
the juvenile offender Atish, gathered there.
Appellant/orig.accused No.4 was armed with sword. Accused
No.2 and juvenile offender were armed with choppers. Accused
No.5 was armed with stick. All the appellants/accused and the
juvenile offender assaulted the victim Dilip Pawar by means of
weapons. By that time, PW3 Surekha Pawar wife of the victim,
rushed to the spot and intervened the assault.
Appellant/accused No.1 pushed her aside. As PW1 Talat Shaikh
had intervened, he was assaulted by appellant/accused No.2 by
means of chopper causing bleeding injury on his head. Due to
the severe assault on various parts of the body, the victim Dilip
fell unconscious on the road. That time, appellant
No.4/orig.accused No.5 took up a tile lying on the road and hit
the victim on his head. Thereafter all the appellants ran away.
One autorickshaw was stopped and the injured Dilip was taken
to Municipal Council Hospital by PW1 & PW3. History was
narrated to the Medical Officer (PW8) Dr. Sudhir Deshpande.
He examined the injured and noted the injuries and made entries
in the medical papers. He referred the victim to Civil Hospital,
Solapur and send a letter to the Pandharpur Town Police Station.
On medical advice victim Dilip was taken to Civil Hospital,
Solapur where on duty Medical Officer declared him dead on
admission.
5. Meanwhile PW10 PSI Rohidas Kamble who has
received anonymous telephone call about the incident of assault,
had rushed to the Municipal Council Hospital at Pandharpur and
thereafter reached the Civil Hospital, Solapur by 12:00
midnight. He contacted PW3 Surekha Pawar and recorded her
statement and forwarded it along with his report through police
constable Kadam to Pandharpur Town Police Station for
registration of offence.
6. During the investigation, inquest panchnama was
conducted. Then the dead body of Dilip Pawar was sent for
postmortem. The cause of death was multiple injuries on head,
face and both upper limbs with fracture of skull and subdural
hematoma with contusion on brain and fracture of radiudulna
left.
7. In the meantime the news regarding death of ex
municipal Councilor and husband of sitting President of
Municipal Council, spread in Pandharpur city and atmosphere
became tense. Hence PW12 Netaji Dange called PW10 PSI
Rohidas Kamble to Pandharpur. On receiving the statement of
PW3 Surekha Pawar, an offence was registered at C.R. No.42 of
2000 at Pandharpur police station against the appellants/accused
and also against the juvenile offender for the offence of murder
and rioting armed with deadly weapons. The offence was so
registered at 2:30 a.m. on 11th March, 2000 and further
investigation was carried out by PW12 Netaji Dange who had in
the meantime visited the place of assault at Bhadule square and
deployed police force for law and order maintenance.
8. It is also case of the prosecution that while PW10 PSI
Rohidas Kamble had left Pandharpur police station for attending
the hospital, accused No.2 and one juvenile offenderAtish
attended the Pandharpur town police station with blood stained
chopper in the hand of appellant/accused No.2. Police Head
Constable PW11 Gurling Kamble seized the said chopper under
panchnama in presence of two witnesses and sent both the
accused No.2 and juvenile offenderAtish for medical
examination to Municipal Council Hospital, Pandharpur and they
were examined and treated by PW8 Dr. Sudhir Deshpande.
9. On 11.3.2000 spot panchnama was conducted at about
6:00 a.m. at Bhadule square and from that place one chopper
and two pieces of tiles stained with blood along with pair of
slippers and clothes, were seized. On the same day,
appellants/accused Nos.1, 2, 4 and juvenile offenderAtish were
arrested. The clothes of the victim Dilip Pawar were taken
charge of under the panchnama. On 12.3.2000 the statements
of the witnesses were recorded and on that day appellant
No.4/orig.accused No.5 was put under arrest. The said appellant
No.4/orig.accused No.5 is since deceased as he died during
pendency of the appeal.
10. It is also case of the prosecution that on 14.3.2000
appellant/accused No.1 made a statement in presence of two
panch witnesses including PW7 Pandurang Jadhav and
subsequently at his instance one gold chain was recovered from
his house. On 16.3.2000 appellant/orig.accused No.4 made a
voluntary statement in presence of two panch witnesses
including PW4 Mahesh Tendulkar, and at his instance blood
stained sword and chopper were recovered which were
concealed under the bushes of cactus situate by the side of
Pandharpur–Sangola road. During investigation, blood samples
of the accused persons were collected. The seized articles were
sent for the chemical analysis and on completion of
investigation chargesheet was filed against the
appellants/accused and the case was committed to the Court of
Sessions.
11. All the appellants/accused pleaded not guilty to the said
charge. Their defence is that of total denial and false
implication. According to them, the victim was a bootlegger and
was a known goonda of the said locality and had political
connections. It is also defence that due to activities of victim, he
had number of enemies and as such on the relevant night, he
was assaulted by some unknown persons and they could not be
traced out by the police. Police have falsely implicated the
appellants and other coaccused. No defence evidence is
produced during the trial.
12. During the trial, all the present appellants/accused and
juvenile offender were before the trial Court and at the time of
framing of the charge, juvenile offender – Atish preferred an
application for treating him differently as per the provisions of
the Juvenile Justice (Care and Protection of Children) Act, 2000.
Said application was heard and directions were given by the trial
Court that the original accused No.3 Atish be treated as a
juvenile and be dealt with according to law. Hence the case
against him was sent to the appropriate Court i.e. Juvenile
Justice Board, Solapur. Consequently the present
appellants/orig.accused Nos.1, 2, 4 & 5 were tried and convicted
by the impugned judgment and order.
13. In order to substantiate the charges leveled against the
appellants/accused, the prosecution examined 12 witnesses. Out
of them, PW1 Taulat Shaikh, PW2 Salim Shaikh and PW3
Surekha Pawar are the eye witnesses. PW4 Panch Mahesh
Tendulkar is on the aspect of memorandum statement of
appellant/accused No.4 and recovery of sword and chopper at
his instance. PW5 is panch Prakash Musale and he is on the
aspect of recovery of clothes of all the five accused under the
panchnama (Exh.43). PW6 one Sunil Patil is the jeweler who
identified the gold chain which was sold to PW3 and which the
victim was wearing on the night of the incident and which was
misplaced / stolen during the incident. PW7 is panch witness
Pandurang Jadhav on the aspect of memorandum statement of
appellant/accused No.1 and subsequent recovery of gold chain
from his house under the panchnama. PW8 is Dr. Sudhir
Deshpande who examined PW1 and victim and also examined
the appellants/accused Nos.1, 2 & juvenile offender (accused
No.3) at Hospital at Pandharpur. He examined eye witness PW1
Talat Shaikh and made entry to that effect and issued certificate.
However, he did not give any treatment to this witness as said
witness had left the hospital without informing the duty staff.
PW9 is another doctor by name Dr.Yogesh Kokadwar from Civil
Hospital, Solapur. He examined eye witness Taulat Shaikh (PW
1) on the night between 10th & 11th March, 2000 at about 12:15
hours. PW10 is PSI Rohidas Kamble from Pandharpur Town
Police Station. PW11 is police head constable Gurling Kamble
again attached to Pandharpur Town Police Station and PW12 is
Police Inspector Netaji Dange attached to Pandharpur Town
Police Station and who took over the investigation in the matter.
14. During the arguments, following points were raised on
behalf of the appellants/accused challenging the judgment and
order. The main thrust of the argument was on the alleged
deficiencies in the investigation by the police and partisan act on
the part of the Pandharpur police in order to help then Mayor of
Pandharpur Municipal Council PW3 Surekha Pawar. Much is
argued mentioning the conduct of the police officers in not
recording the information received on telephone regarding
commission of cognizable offence at the earliest point of time
and subsequently recording the statement of PW3 and treating
as First Information Report (Exh.36). The points which were
raised challenging the judgment and order, are narrated
hereunder :
(i) firstly, the Doctor who performed the postmortem on
the dead body has not been examined and as such the
evidence of prosecution is lacking on the aspect as to how
the death had occurred and whether the injuries
sustained by the victim were sufficient to cause the death
in the ordinary course;
(ii) secondly, there was no occasion for PW8 Dr. Sudhir
Deshpande to opine as to whether the injuries sustained
by the victim as observed by him when the victim was
alive were sufficient to cause death in the ordinary course.
In other words such substantive evidence of PW8 as
appearing in his evidence cannot be taken as furthering
the case of prosecution regarding the immediate cause of
death was the injuries sustained by the victim.
(iii) thirdly, Exh.36 which is allegedly treated as First
Information Report being the statement of Surekha Pawar
cannot be treated as First Information Report and as such
it has only the value at par with the statement under
Section 161 of Cr.P.C.. This is so because of the starting of
the investigation as to visiting the spot and conducting the
scene of offence panchnama etc. prior to registering the
offence against the appellants and other coaccused;
(iv) fourthly, the substantive evidence of the alleged eye
witness Taulat Shaikh (PW1) on the aspect as to
availability of the electric poll and availability of the light
during the incident is entirely an omission. This being the
vital aspect so far as the identity of the
appellants/accused is concerned, the said alleged eye
witness cannot be treated as a witness seeing the
appellants/accused assaulting the victim on that relevant
night;
(v) fifthly all the injuries sustained by the victim were of
superficial nature and there is nothing brought on record
by way of examining the doctor who had performed the
postmortem that they were sufficient to cause death in
the natural course of events.
15. Now coming to the point Nos.(i), (ii) & (v) raised on
behalf of the appellants, it must be mentioned that the
postmortem report regarding the deceased was admitted by the
defence during the trial. Moreover PW8 Dr. Sudhir Deshpande
was the medical officer at Pandharpur who at the first
opportunity examined the victim and noted down the injuries
sustained by the victim. Said injuries noteddown by PW8 are
mentioned hereunder for the sake of ready reference. Moreover
the observations of the said PW8 and his opinion regarding the
said injuries is also detailed below.
“5. On examination of Dilip Pawar, I noticed the following
injuries.
1. Incised wound, size 22 cm x ½ cm at
right side of face, oblique, bowing from right
fronto parital region, downwards extending
right laterally to right eye over right maxila
bone deep.
2. Incised wound, 10 cm x ½ cm
oblique, 1 cm right lateral and parallel to
injury no.1.
3. Incised wound, size 9 cm x ½ cm,
over right forearm, lower 1/3rd posterior
aspect, bone deep;
4. Incised wound, size 8 cm x ½ cm
oblique, crossing vertically at injury no.3.
5. Deep incised wound, size 10 cm x ½
cm oblique, left wrist joint, posterior aspect,
bone deep with deformity of left wrist joint.
6. Incised wound, size 8 cm x 1 cm
oblique, left ipital region, bone deep.
7. Incised wound, size 9 cm x 1 cm
oblique, right occipital region, bone deep.
8. Incised wound, size 8 cm x 1 cm
oblique right lateral at injury no.7, bone
deep.
6. The above described injury No.1, 2, 6, 7 and 8
were on vital parts. These injuries were sufficient in
ordinary course of nature to cause death. ….......”
Much is argued on the said expert opinion given by
PW8 Dr. Sudhir Deshpande as referred above on the aspect of
sufficiency of the injuries in ordinary course of nature to cause
death. It is argued by learned Senior Counsel on behalf of the
appellants that there was no occasion for PW8 Dr. Sudhir
Deshpande to opine as to whether the injuries observed by him
on the victim were sufficient in the ordinary course of nature to
cause death. This was more so, further argued, when the victim
was then still alive when he was examined by PW8 Dr. Sudhir
Deshpande. On this aspect, it is evident that the substantive
evidence of PW8 Dr. Sudhir Deshpande was recorded when the
matter was put to trial and in fact the victim was dead
immediately on the same day of the incident as he was declared
dead on admission at Civil Hospital, Solapur. It must not be lost
sight of the fact that said PW8 Dr. Sudhir Deshpande is a
medical practitioner and had occasion to observe the injuries
sustained by the victim as detailed above. It was his expert
opinion appearing in his substantive evidence in para No.6 as
mentioned above on the sufficiency or otherwise of the injuries
causing death of the victim. Though it is a factual position that
the medical officer who performed the postmortem has not been
examined in the matter, still it cannot be lost sight of that the
said postmortem report was admitted on behalf of the defence
and that PW8 Dr. Sudhir Deshpande is the medical officer who
observed the injuries on the victim at the first opportunity and
then he opined on the effect of said injuries when said victim
had died even prior to admitting him in the Civil Hospital,
Solapur. In our considered view, there is nothing to doubt the
case of the prosecution in view of the evidence of PW8 Dr.
Deshpande that the injuries sustained by the victim were vital
and in fact he died immediately within few hours of the assault.
Consequently the aforesaid point Nos.(i), (ii) & (v), cannot be
taken as a mitigating circumstance against the prosecution.
16. Now coming to the point No.(iii) raised as to Exh.36,
statement of PW3 Surekha Pawar, not to be treated as a first
information report in the strict sense of the meaning of the FIR,
it is seen that the trial Court had accepted this objection and still
considered the effect of said Exh.36, being statement under
Section 161 of Cr.P.C.. Otherwise also in our considered view a
cryptic telephonic information cannot get the character of the
FIR and in that event even if it is accepted that the Pandharpur
police station received intimation over telephone regarding the
incident of assault, such intimation to the police cannot be
treated as First Information Report in the strict sense. On this
aspect, much is argued by the learned Senior Counsel for the
appellants that no station diary entry has been produced by
Pandharpur police regarding receipt of actual information. Much
emphasis was placed on such nonproduction of station diary
and it is argued that only because there was no names of
assailants given over the telephone by the informant, such entry
is not forthcoming. It is apparent that in the present matter prior
to recording the statement of PW3 Surekha Pawar and sending
it to Pandharpur police station for registration of offence, at least
part of the investigation has already started inasmuch as
appellant No.2 and juvenile offender (accused No.3) were taken
in custody by the police at Pandharpur Town police station when
apparently they appeared at the police station when
appellant/accused No.2 was holding a blood stained knife in his
hand. Though certain part of the investigation/enquiry
procedure was started by the police prior to treating Exh.36 as
First Information Report, this fact in itself cannot be treated as
such an illegality as to doubt the case of prosecution and to
throw away the substantive evidence of PW3 Surekha Pawar.
Otherwise also the instances of belated formal recording of the
First Information Report after starting of the investigation, are
not uncommon. Considering the substantive evidence of
prosecution witnesses, mainly of PWs1, 3, 10, 11 & 12, it cannot
be said that there is any material defect in the case of
prosecution so far as initiation of the proceedings against the
appellants/accused. In the result, this third objection raised on
behalf of the appellants shall not sustain.
17. The fourth point canvassed regarding omission in the
substantive evidence of PW1 Talat Shaikh on the aspect of
availability of sufficient electric light on the spot during the
incident, we have gone through the reasoning given by the trial
Court. It is specifically mentioned and rightly so that said PW1
Talat Shaikh was knowing the appellants/accused and they were
not stranger to him. It has appeared in his substantive evidence
in the notes of evidence in para2 that he know all the four
accused and Atish (juvenile offender) since they and said PW1
are the residents of the same lane at Pandharpur. He had further
stated that all the three accused and Atish were residing opposite
the house of Dilip Pawar (the victim) at the time of incident. He
had also deposed that there was enmity between Dilip Pawar and
“Dhotre's” from 10 years. The word “Dhotre's” signify the
accused persons who are having surname “Dhotre”. Considering
this substantive evidence of PW1 Talat Shaikh as to his well
acquaintance with the appellants/accused, it is now insignificant
whether his substantive evidence is affected by omission on the
aspect as to presence of electric light. According to this witness
he was immediately present with the victim Dilip Pawar and had
witnessed the assault in the close proximity. Not only that but he
had also sustained severe injuries. At the cost of repetition, it
must be mentioned that though initially he attended the hospital
at Pandharpur and, he left without informing the staff on duty
later on the same midnight, he attended the Civil Hospital,
Solapur and was examined and treated by PW9 Dr. Yogesh
Kokadwar. Following injury was observed on his person by the
attending doctor. Said injuries are “Incised wound over mid
frontal region size 2 inch x ½ inch.”. According to the doctor's
opinion the injury was caused by sharp edged weapon and the
age of injury was within 24 hours. Considering this factual
position and accepting that said PW1 had also sustained injury
during the incident of assault on the victim, no doubt can be
entertained as to said PW1 identifying the appellants/accused.
In the result, this fourth objection also shall not sustain.
18. In summing up, we have observed that the substantive
evidence of PW1 & PW3 coupled with the expert evidence of
Doctors PW8 & PW9 is of such a overwhelming character so as
to prove the guilt of the appellants/accused for the offence of
murder, beyond reasonable doubt.
19. Prior to parting with this judgment, the last submission
advanced on behalf of the appellants/accused is required to be
mentioned. It is alternatively argued that if the
appellants/accused are held guilty for the assault on the victim,
the injuries were of such a superficial nature not to cause death
in the ordinary course of nature. On this aspect, reference is
required to be made to the injuries observed by the attending
doctor PW8 Dr. Sudhir Deshpande, as detailed above, so also
the injuries mentioned in the postmortem report Exh.30 which is
an admitted document. There is a fracture of right maxillary
bone vertical – as mentioned in injury No.2 in column No.17 of
the postmortem report. So also there is fracture of left radius
ulna. In fact there are almost 20 injuries detailed in the column
No.17 of the postmortem report (Exh.30). It is significant to
note the observations as to the probable cause of death
appearing in the postmortem report. It is mentioned as multiple
chop wounds on the head, face and both upper limbs with
fracture of skull with subdural haematoma with contusion on
brain with fracture radius/ulna left. We have also observed that
on the said Exh.30, on the last page there is an endorsement
showing the order passed by the trial Court to the effect
“exhibited as per Section 294 of Cr.P.C.”
20. Considering in totality the effect of said evidence of
prosecution as to the injuries caused to the victim and probable
cause of death and mainly considering the substantive evidence
of PW8 Dr. Sudhir Deshpande in our considered view even the
last submission is not acceptable.
21. During the arguments, various authorities are cited
before us on behalf of the appellants/accused. On the aspect of
appreciation of the evidence of an eye witness, an unreported
judgment is cited in the matter of Criminal Appeal No.114 of
2008 (Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra)
decided by the Hon'ble Apex Court . In our view, whether or not
a particular witness is to be accepted as trustworthy or not, is
dependent on the facts and circumstances of the particular case.
In our considered view, the substantive evidence of PW1 & PW3
cannot be doubted though it is strongly argued that they are
interested witnesses and further that PW3 was then Mayor of
Pandharpur Town and was an influential person capable of
dictating the terms with local police station.
22. Another authority is cited in the matter of Bheru
Singh s/o. Kalyan Singh Vs. State of Rajasthan, reported in
(1994) 2 SCC 467. The contents in paragraph Nos.15, 16 & 17
of the said authority were emphasized by the learned Senior
Counsel for the appellants mentioning that the confessional FIR
lodged by the accused is not admissible in the evidence as hit by
Section 25 of the Evidence Act and it is acceptable only to the
extent permissible under Section 27 of the said Act. This
authority was placed before us in order to argue that though the
appellant/accused No.2 and juvenile offender (accused No.3)
themselves approached the Pandharpur police station
immediately after the incident of assault and after certain
statements were made by them incriminating them with the
offence of assault, such statements are hit by Section 25 of the
Evidence Act. On this aspect, in our considered view even non
confessional part of the FIR can be used against the accused as
per the provisions of Section 8 of the Evidence Act so far as the
conduct of the person is concerned. In any event, even the
presence of appellant/accused No.2 and juvenile offender
immediately after the assault is definitely a circumstance
showing the involvement of the said accused in the incident of
assault.
23. The third authority cited before us is in the matter of
Niranjan Panja Vs. State of West Bengal reported in (2010) 6
SCC 525. By taking shelter of this authority, it is argued that the
major discrepancies in the prosecution evidence are fatal to the
prosecution. In our considered view, there is nothing in the
substantive evidence of the main eye witnesses PW1 & PW3 so
as to accept the submission on behalf of the appellants that there
are no material discrepancies going to the root of the matter.
Even when PW2 another eye witness had turned hostile to the
case of prosecution on the actual assault on the victim at the
hands of the appellants, still the presence of the appellants and
assault on the victim are the facts established through his
evidence. In other words, it must be said that there are no any
material discrepancies in the case of the prosecution so as to
negate its case and to come to the different conclusion than that
arrived at by the trial Court.
24. In view of the above, it must be said that the
prosecution has proved the charges against the
appellants/accused for which they have been convicted vide the
impugned judgment and order. Consequently there is no merit
in the appeal and the same is accordingly disposed of with
following order :
:: O R D E R ::
[i] Criminal Appeal No.524 of 2003 stands dismissed.
(A. R. JOSHI, J.) (NARESH H. PATIL, J.)
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