Full Judgment Text
2023:BHC-AS:19054-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 83 OF 2014
WITH
INTERIM APPLICATION NO. 1122 OF 2022
Pandit @ Baban Chimaji Bhutekar,
Residing at, Plot No.19,
Kamlabai Zopadpatti,
Opp. Hakkani Masjid, Road. 10,
Baigainwadi, Govandi, Mumbai-43,
At present undergoing the sentence
imposed upon him at Kolhapur
Central Prison, Kolhapur. …Appellant/Applicant
(Orig. Accused No.3)
V/s.
The State of Maharashtra
(at the instance of
Senior Inspector of Police,
Shivaji Nagar Police Station, Mumbai
District Mumbai
vide C.R. No.359 of 2010 …Respondent
WITH
CRIMINAL APPEAL NO. 310 OF 2014
Vijay @ Bapu Chimaji Bhutekar,
Having address at Plot No.19,
Kamlabai Zoparpatti,
Opp. Hakkani Masjid, Road. 10,
Bainganwadi, Govandi,
Mumbai-400 043,
Kolhapur Jail Prison No.5282. …Appellant
(Orig. Accused No.2)
V/s.
The State of Maharashtra
At the instance
Shivaji Nagar Police Station,
Mumbai. …Respondent
(Orig. Complainant)
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WITH
CRIMINAL APPEAL NO. 554 OF 2014
Arvind Ganpat Lavte,
Age: years, Occup.: Labour,
R/o Plot No.19, Kamlabai Zopadpatti,
Opp. Hakkani Masjid,
Govandi, Mumbai-400 043,
(confined as Convict No.C-6068
Kolhapur Central Prison,
Kalamba, Kolhapur. …Appellant
(Orig. Accused No.1)
V/s.
The State of Maharashtra
(at the instance of
Shivaji Nagar Police Station, Mumbai)
in C.R. No.359 of 2010
tried in Sessions Case No.157 of 2011 …Respondent
Dr. Yug Mohit Chaudhry for the Appellant in Appeal No.83 of 2014 and for
the Applicant in Interim Application No.1122 of 2022.
Mr. Abhaykumar Apte, Appointed Advocate for the Appellant in Appeal
No.554 of 2014.
None for Appellant in Appeal No.310 of 2014.
Ms. G.P. Mulekar, APP for the Respondent-state.
CORAM : A. S. Gadkari And
Prakash D. Naik, JJ.
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RESERVED ON : 8 MARCH, 2023.
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PRONOUNCED ON : 16 JUNE, 2023.
JUDGMENT (Per- A.S. Gadkari, J.) :-
1) Appellants, (Orig. Accused No.3 in Appeal No.83 of 2014, Orig.
Accused No.2 in Appeal No.310 of 2014 and Orig. Accused No.1 in Appeal
No.554 of 2014) by these separate Appeals have impugned Judgment and
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Order dated 6 September, 2013 passed in Sessions Case No.157 of 2011 by
the learned Additional Sessions Judge, Greater Mumbai, convicting them
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under Sections 302 and 506 (II) read with Section 34 of the Indian Penal
Code (for short, “IPC”) and are sentenced to undergo imprisonment for life
and to pay a fine of Rs.1,000/- each, in default to undergo rigorous
imprisonment for six months, for the offence punishable under Section 302
r/w Section 34 of the IPC and to undergo rigorous imprisonment for one
year and to pay fine of Rs.500/- each in default to undergo rigorous
imprisonment for two months for the offence punishable under Section 506
(II) r/w Section 34 of the IPC. The trial Court has directed that, both the
sentences shall run concurrently.
2) For the sake of brevity, the Appellants hereinafter will be
referred to as per their original nomenclature before the trial Court i.e.
Appellant in Appeal No.83 of 2014-Pandit @ Baban C. Bhutekar as accused
No.3 (A-3); Appellant in Appeal No.310 of 2014-Vijay @ Bapu C. Bhutekar,
as accused No.2 (A-2) and Appellant in Appeal No.554 of 2014-Arvind G.
Lavte, as accused No.1 (A-1).
3) Heard Dr. Chaudhry learned Advocate for the Appellant in
Appeal No.83 of 2014 and Interim Application No.1122 of 2022, Mr.
Abhaykumar Apte, Appointed Advocate for the Appellant in Appeal No.554
of 2014 and Ms. Mulekar, learned APP for the Respondent-State.
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In pursuance of Order dated 19 January, 2023, Advocate
Arvind V. Bedekar was appointed by the High Court Legal Services
Committee, Mumbai, to represent Appellant in Appeal No.310 of 2014. As
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none appeared for the Appellant (A-2) on the date of hearing, we
requested Dr. Chaudhry, to also represent and espouse the cause of A-2. He
gracefully acceded our request and argued the case of A-2 at length on
merits.
4) Shorn of unnecessary details, the prosecution case in brief is as
under:-
i) Sayyed Khan (PW-1) and Sarver Khan (deceased) used to
take contracts for renovation of old huts in the vicinity of Kamlabai
Zopadpatti, Govandi, Mumbai. They were allotted work of renovation of
huts in plot No.19, Road No.10 of Kamlabai Zopadpatti. Appellants and
juvenile in conflict with law, namely Vikram Bhutekar i.e. son of Vijay @
Bapu Bhutekar (A-2) were residing in plot No.19.
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ii) On 4 November, 2010, Vijay (A-2) demanded a party
from Sarver Khan. Arvind (A-1) also demanded a party from Sayyed Khan
(PW-1). A-1 and A-2 both threatened Sayyed Khan (PW-1) and Sarver
Khan (deceased) of serious consequences if the party is not given, therefore
Sarver Khan (deceased) demanded money from PW-1 for giving party to
them, but PW-1 refused to give money.
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iii) On 7 November, 2010 at about 7.00 p.m. Sayyed Khan
(PW-1), Sarver Khan (deceased), Mohammad Salim Mohammad Saeed
Malik (PW-5) and Juber Ahmed Vashiullah Shaikh (PW-14) came together
in front of Hakkani Masjid. Sarver Khan (deceased) was talking with PW-1,
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PW-5 and PW-14. At that time, all the Appellants along with juvenile
accused came at the said place. Vijay (A-2) abused deceased in filthy
language and questioned him as to why he was not giving party. All the
accused caught Sarver Khan (deceased) and abused him in filthy language.
Vijay (A-2) took out Gupti (sword stick) which was concealed on the back
side of his trouser and assaulted Sarver Khan on his chest and hand. Pandit
@ Baban (A-3) assaulted Sarver Khan on his neck by a Gupti. Juvenile
accused assaulted deceased with a Gupti on his back. Arvind (A-1) dealt a
blow of Gupti on the right side of waist of Sarver Khan.
iv) Sarver Khan fell on the ground and screamed for help.
However, all the accused threatened PW-1, PW-5 and other persons by
showing their weapons and told them that, if anybody comes forward for
help, they would be cut. PW-1, PW-5 and other persons got frightened and
people in the vicinity closed their shops. All the accused thereafter left the
spot of incident.
v) Sayyed Khan (PW-1), Mohammad Salim Mohammad
Saeed Malik (PW-5) and Juber Shaikh (PW-14) then went to Sarver Khan
(deceased), put him in an auto-rickshaw and took him to Shatabdi Hospital.
Mr. Riyaz Khan i.e. father of Sarver Khan (deceased) met them in the way
and also joined them to go to hospital. Sarver Khan was declared dead
before admission by the hospital authority.
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vi) After receipt of information about the death of Sarver
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Khan, Shivaji Awati (PW-15), Police Sub-Inspector who was on duty on 7
November, 2010 as S.H.O. at Shivaji Nagar Police Station, Govandi,
Mumbai, accompanied by A.P.I. Mr. Valatkar went to Shatabdi Hospital.
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First Information Report dated 7 November, 2010 (Exh-24) was given by
PW-1 and recorded by PW-15. Inquest panchanama (Exh-28) and spot
panchanama (Exh-30) were drawn by PW-15. Clothes of deceased Sarver
Khan were seized under a panchanama (Exh-32). Appellants were arrested
in due course of time and their clothes were also seized.
vii) Dr. Shivaji V. Kachare (PW-12) conducted autopsy on the
dead body of Sarver Khan. He was working as Medical Officer at Rajawadi
P. M. Centre at the relevant time. The Post-Mortem Report is at Exh-50. He
noticed following external injuries which are recorded in column No.17 of
Post-Mortem Report-
i) Incised wound at right lateral of neck region 2 cm, below from
right ear pinna, size of 2 cm x 1 cm x 1.5 cm deep. Radish
brown in colour one angle acute.
ii) Incised wound at anterior of right chest below right clavicle
size of 3 cm x 2 cm, Cavity deep, Radish brown in colour, One
angle acute.
iii) Incised wound at right chest anteriorly below injury no.2 size
of 3 cm x 2 cm, Cavity deep, Radish brown in colour, One angle
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acute.
iv) Incised wound at anterior of right chest below injury no.3. Size
of 3 cm x 2 cm, Cavity deep, Radish brown in colour, One angle
acute.
v) Deep penetrating wound at right illiac fossa above right illiac
crest, size of 3 cm x 1.5 cm, Cavity deep (through & through up
to posterio region) Radish brown oval shape one angle acute.
vi) Incised wound at posterior of right scapula, vertical size of 3.5
cm x 1.5 cm mussel deep, Radish brown one angle acute.
vii) Incised wound at anterior of left middle finger size of 3 cm x 1
cm bone deep (evidence of fracture dislocation first phalyngeal
of middle finger.) Radish brown irregular shape.
viii) Incised wound at right lumber region. Para vertebra line size
of 2 cm x 1 cm, Muscle deep, Radish brown one angle acute.
ix) Incised wound (Exit of injury no.5 at Right lumber size of 3 cm
x 1 cm, Cavity deep, Radish brown over shaped.)
All these injuries were anti-mortem. He also noticed following
internal injuries which are recorded in column Nos.20 and 21 of Post-
Mortem Report-
i) Column 20(A) walls ribs cartilages–evidence of fracture 3,4,5,6
right sides ribs posteriorly. Radish and hemorrhagic 20(b)
pleura ruptured at anterior and posterior region right side
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hemorrhagic. Right lung evidence of incised wound at right
apical region 2 cm x 2 cm into muscle deep, Radish brown.
Evidence of inside wound right middles lobe size 1.5 cm x 1.5
cm Muscle deep. Radish brown.
II) In column no.21 corresponding injuries mentioned as follows-
i) Walls and peritoneum–ruptured wall at right pelvic and right
illiac and hypochondrium region. Radish. Small intestine and
large intestine-evidence of rupture illiam, part of jejuncum,
caecum and descending and sigmoid colon. Radish and
hemorrhagic.
ii) Liver-evidence of rupture at right side base of liver, Radish.
iii) Kidneys-right kidney superior pol and right supra region
rupture hemorrhagic.
He opined that, the cause of death was due to shock and
hemorrhage due to multiple incised wounds (unnatural).
viii) Further investigation of the crime was carried out by
Police Inspector Mr. Vikas D. Sonawne (PW-16). Weapons used in the crime
were recovered at the instance of accused persons by complying with
necessary legal formalities. Deceased’s clothes and blood stained samples
were sent for chemical analysis. After receipt of reports from FSL and
completion of investigation of the crime, PW-16 submitted charge-sheet in
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the Court of Metropolitan Magistrate, 56 Court Kurla, Mumbai.
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5) As the offence punishable under Section 302 of the Indian
Penal Code is exclusively triable by the Court of Sessions, the learned
Magistrate committed the case to the Court of Sessions. The trial Court
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framed charge below Exh-12 on 6 August, 2011. The charge was read
over and explained in Marathi vernacular to the accused to which they
pleaded not guilty and claimed to be tried.
Prosecution in support of its case, examined in all 16 witnesses.
The statements of accused under Section 313 of the Cr. P. C. were recorded
which are at Exhs-76 to 78. Accused No.2 entered into witness box as
defence witness and examined himself. All the accused questioned and
controverted the case of the prosecution.
6) The trial Court after hearing learned Advocates for the
respective parties, was pleased to convict and sentence Appellants by its
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impugned Judgment and Order dated 6 September, 2013 as noted
hereinabove.
7) At the outset, it is to be noted here that, the trial Court has not
accepted the recovery of weapons and seizure of clothes of the Appellants
and has in fact rejected the evidence laid by the prosecution in that behalf.
The detailed discussion with respect to the rejection of evidence of
prosecution for seizure of weapons and clothes is discussed in detail by the
trial Court in paragraph Nos. 63 to 67 of the impugned Judgment. The trial
Court has not accepted the evidence of seizure of clothes and weapons
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predominantly on the ground that, the weapons were not sealed on seizure
and the clothes of the Appellants were not described as having blood stains
in the respective panchanamas. The weapons used by the Appellants have
not been identified by the prime witnesses i.e. PW-1 and PW-11. That, the
said panchanamas and the testimonies of the relevant witnesses suffer from
material contradiction.
8) It is not in dispute that, the prosecution has not challenged the
said findings recorded by the trial Court. Therefore, what remains for our
consideration is the ocular evidence of material witnesses i.e. PW Nos.1, 5,
13 and 14 only.
It is necessary to note here that, Juber Shaikh (PW-14) did not
support prosecution case and therefore was declared hostile by the
prosecution. In his elaborate cross-examination by the learned APP, nothing
beneficial to the prosecution has been elicited and brought on record.
9) PW-1 in his testimony has deposed that, he was residing in the
vicinity and at the said address for last 17-18 years along with his wife and
two children. In the year 2010, he was taking small contracts of
construction in the said area. On some occasions, he used to do the
construction work with Sarver R. Khan (deceased) and some times
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independently. That, on 4 November, 2010 he received some work of
construction repairing at plot No.19. He was doing the said work along
with Sarver Khan. In the afternoon, during lunch break Sarver Khan
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informed him that, A-2 was demanding a party from him and therefore
Sarver Khan asked money from PW-1. A-1 had also demanded a party in
the evening and had told him that otherwise he will look at him. PW-1 did
not give money to Sarver Khan and told him that, the Accused persons are
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from their area and they would see them afterwords. On 7 November,
2010 at around 7.00 p.m. PW-1 and Sarver Khan came back from work to
Road No.10 near Hakkani Masjid. PW-1 along with PW-5, 14 and Sarver
Khan (deceased) was standing near a table at a tea stall. All the accused
along with juvenile accused Vikram came at the said spot and started
abusing him by saying that, why he did not give party to them. PW-1 along
with other witnesses moved behind. All the Appellants took out Gupti and
stabbed Sarver Khan. A-2 assaulted Sarver Khan on chest and hand, A-3
assaulted Sarver Khan on his neck, juvenile accused Vikram assaulted
Sarver Khan on the back. A-1 assaulted Sarver Khan on the lower side of
his waist. As the crowd gathered there, A-1 threatened them saying that,
no one should come forward or else he would see them. Sarver Khan fell
down and was screaming. All the four accused went from the scene of
offence. PW-5, PW-14 and Rajubhai (Riyaz Khan) picked up Sarver Khan,
put him in an auto-rickshaw and took him to Shatabdi Hospital. The doctor
present at hospital, after examining Sarver Khan informed that, he was
already dead. Rajubhai is father of Sarver Khan. His statement
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(Complaint) dated 7 November, 2010 (Exh-24) was recorded by police.
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PW-1 knew all the accused persons as they were residing in the same area.
In his cross-examination he has admitted that, two cases were
registered against him with Shivaji Nagar Police Station, Mumbai under
Section 326 of the Indian Penal Code. That, one of the case was registered
against him for assaulting the wife of A-2 i.e. Vijay Bhutekar on her head.
That, the said case was registered after the arrest of A-2 in the present case
and when he was in jail. That, he was not released on bail in the said case.
He has admitted that, near the spot of incident there was a shop of
wholesale of betel-nut, one Pan (betel leaf) shop and 4-5 other shops.
10) PW-5 in his testimony has deposed that, since last 18-20 years
prior to the incident, he was residing opposite Hakkani Masjid, Govandi,
Mumbai. He knew complainant (PW-1) and Sarver R. Khan (deceased) so
also all the accused persons as all of them were residing in the same area.
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On 7 November, 2010 in the evening between 6.45 to 7.00 p.m., he, PW-1,
Sarver Khan (deceased) and Juber Shaikh (PW-14) were present in front of
Hakkani Masjid and were chit-chatting. All the accused along with juvenile
accused came near them. After seeing PW-1 and Sarver Khan, the said
accused persons abused them and scolded, why they are not giving party.
They dragged Sarver Khan. A-2 took out Gupti from the back side of his
trouser and give blows on the chest and middle finger of the hand of Sarver
Khan, A-3 took out Gupti and gave blow of it on the neck of Sarver Khan, A-
1 gave blow of Gupti on the right side above the waist of the Sarver Khan.
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He saw this assault and went back. Sarver Khan fell down on the ground.
He along with others went to help Sarver Khan. At that time, all the
accused showed Gupti to them and the mob, abused in filthy language and
threatened of dire consequences if somebody comes forward. Accused
persons then dispersed from the spot. Thereafter, he, PW 1, PW-4 and
Riyaz Khan i.e. father of deceased of Sarver Khan took Sarver Khan to
Shatabdi Hospital. Doctor examined Sarver Khan and declared him dead.
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Police recorded his statement on 8 November, 2010.
In his cross-examination he has admitted that, he did not go by
rickshaw in which deceased was taken to hospital. He did not help to lift
deceased and take him to rickshaw. PW-1, PW-14 and Riyaz Khan lifted
Sarver Khan, put him in the rickshaw and took him to the hospital. It
required 45 minutes for him to reach the hospital from Hakkani Masjid.
11) PW-13 has deposed that, since 2-3 years prior to the date of
incident, he was residing at Bainganwadi, Govandi, Mumbai and was
running a Pan (betel leaf) Shop near Hakkani masjid on road No.10. He
knew PW-1 and Sarver Khan (deceased). He also knew all the accused
persons. All the accused used to reside in plot No.19 of Bainganwadi. The
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incident occurred on 7 November, 2010 at 7.00 p.m. near the shop of
Yusuf Chinesewala, which was located in front of his Pan Shop. That, PW-1
and deceased were chit-chatting in front of the shop of Yusuf Chinesewala.
After some time, Appellants and juvenile accused arrived there and
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altercation took place between PW-1, Sarver Khan and accused persons and
they started fighting. All the three accused took out Gupti and gave blows
of it on deceased. Deceased started shouting. Some persons tried to save
deceased however they saw Gupti in the hands of Appellants and therefore
they had no daring to rescue the scuffle. He thereafter closed his shop and
stopped there for some time. Sarver Khan was lying on the ground. PW-1
and some other persons took Sarver Khan to hospital by rickshaw. On the
next day, when he went to open his shop, his neighbours informed him that,
Sarver Khan succumbed to death. Police interrogated him and recorded his
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statement on 11 November, 2010. His statement under Section 164 of the
Cr.P.C. was also recorded before the Metropolitan Magistrate, Kurla.
12) Perusal of aforesaid testimonies would indicate that, PW-13 is
an independent witness. He has deposed about the presence of PW-1 at the
scene of offence at the time and date of incident, however has not deposed
about the presence of PW-5.
13) At this stage, a useful reference can be made to a decision of
the Supreme Court in the case of Vadivelu Thevar vs. The State of Madras
reported in AIR 1957 S.C. 614, wherein the Supreme Court has enumerated
three categories of witnesses namely, (i) wholly reliable (ii) wholly
unreliable (iii) neither wholly reliable nor wholly unreliable.
14) Admittedly, PW Nos.1 and 5 were friends of deceased Sarver
Khan. Therefore they were having every reason to put-forth an
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exaggerated version of the incident. They have not deposed about presence
of PW No.13 at the scene of offence. According to us, PW Nos.1 and 5
would fall in the category of ‘neither wholly reliable nor wholly unreliable’
witnesses as has been termed by the Hon’ble the Supreme Court in the case
of Vadivelu Thevar (Supra). PW No.13 is an independent witness and
perusal of his evidence would clearly indicate that, he is a wholly reliable
witness.
15) Both the learned Advocates appearing for the Appellants
submitted that, the incident occurred after altercation between the
Appellants and PW-1 along with deceased which was ensued in a free fight.
The Appellants did not act in cruel and unusual manner and they did not
assault Sarver Khan as soon as he fell on ground, therefore Exception 4 of
Section 300 of IPC would apply to the present case and the act committed
by the Appellants would fall within the purview of Section 304 (part-II) of
the IPC.
16) To bring a case within Exception 4 to Section 300 of IPC, all the
ingredients mentioned in it must be found. It is to be noted that the word
‘fight’ occurring in Exception 4 to Section 300 of IPC is not defined in the
IPC. It takes two to make a fight. To invoke Exception 4 to Section 300 of
IPC, four requirements must be satisfied viz.:-
i. It was a sudden fight;
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ii. There was no premeditation;
iii. The act was done in the heat of passion and
iv. The assailant had not taken undue advantage or acted in a
cruel or unusual manner.
The cause of the quarrel is not relevant nor it is relevant as to who offered
the provocation or started to assault first, but what is important is that the
occurrence must have been sudden and not premeditated and the offender
must not have acted in a fit of anger and must not have taken any undue
advantage or acted in a cruel or unusual manner. When during the course
of a sudden quarrel, a person in the heat of moment, attacks the other
person and causes injury, one of which proves to be fatal, the accused
would be entitled to the benefit of this exception.
The Hon’ble Supreme Court in the case of Sukhbir Singh Vs.
State of Haryana, reported in (2002) 3 SCC 327, while analyzing the
provisions of Exception 4 of Section 300 read with Section 304(II) of I.P.C.
has held that, to avail the benefit of Exception 4 the defence is required to
probabilise that the offence was committed without premeditation in a
sudden fight, in the heat of passion upon a sudden quarrel and the offender
had not taken any undue advantage and the offender had not acted in a
cruel or unusual manner. The exception is based upon the principle that in
the absence of premeditation and on account of total deprivation of self-
control but on account of heat of passion, the offence was committed
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which, normally a man of sober urges would not resort to. Sudden fight,
though not defined under the Act, implies mutual provocation. It has been
held by the courts that a fight is not per se palliating circumstance and only
unpremeditated fight is such. The time gap between quarrel and the fight is
an important consideration to decide the applicability of the incident. If
there intervenes a sufficient time for passion to subside, giving the accused
time to come to normalcy and the fight takes place thereafter, the killing
would be murder but if the time gap is not sufficient, the accused may be
held entitled to the benefit of this exception.
The evidence of PW-13 clearly reveals that, initially there was
altercation which followed in a free fight and then Appellants assaulted the
deceased. The evidence on record shows that the appellants did not act in
a cruel or unusual manner. They did not assault deceased the moment he
fell on ground and fled from the spot. Looking to all these facts, we are of
the considered opinion that the present case will be squarely covered by
exception 4 of Section 300 and would fall under the perview of Section 304
(Part II) of IPC.
16) As noted earlier, PW-13 is an independent witness and a
minute perusal of his testimony would clearly reveal that, after the
Appellants along with juvenile accused arrived at the spot of incident, an
altercation took place between PW-1 and Sarver Khan on one side and
accused persons on the other-side. The said altercation ensued in a fighting
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and thereafter all the three accused persons took out Gupti and gave blows
of it on the deceased. Deceased fell on the ground and started screaming.
The Appellants thereafter left the scene of offence by threatening the people
gathered there. The testimony of PW-13 is fully reliable and therefore his
evidence is binding on the prosecution.
17) Undoubtedly, the above criminal act of the Appellants which
must be held to be conclusively proved in view of the evidence on record,
clearly indicate that, they shared some common intention however the
question arises for consideration, as to whether their common intention
was to commit the murder of Sarver Khan. According to us, there is no
evidence on record to indicate that, the Appellants wanted to do away with
Sarver Khan and by conspiring for committing the said act, they came at the
scene of offence.
In the instant case, concededly there was no enmity between
the parties and there is no allegation of prosecution that, before the
occurrence of the incident i.e. actual assault on the Sarver Khan, the
Appellants premeditated to commit the crime in question.
18) Perusal of evidence on record clearly indicates that, the
prosecution has established beyond reasonable doubt that, the Appellants
are also guilty of the offence under Section 506(II) read with Section 34 of
the IPC.
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19) After taking into consideration the entire evidence of
prosecution, this Court is of the view that the act committed by the
Appellants falls within the purview of Exception 4 of Section 300 and
therefore the Appellants are guilty of commission of offence under Section
304 (II) read with Section 34 of the IPC.
Taking into consideration the facts of the present case in its
totality and its overall view, we are of the opinion that the sentence
imposed upon the Appellants under Section 506(II) read with Section 34 of
the IPC by the trial Court be run consecutively after they undergo sentence
under Section 304(II) of the IPC.
Hence, the following Order.
ORDER
a) All the Appeals are partly allowed.
b) Appellants have been held guilty for commission of
crime under Section 304(II) read with Section 34 of the
Indian Penal Code and are sentenced to suffer rigorous
imprisonment for a period of ten years and to pay a fine
of Rs.1 lac each, in default of payment of fine to further
undergo rigorous imprisonment of one year.
c) Appellants are also held guilty for the commission of
offence under Section 506(II) read with Section 34 of
the IPC and are sentenced to suffer rigorous
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imprisonment for a period of one year and to pay a fine
of Rs.5,000/- each, in default of payment of fine to
further undergo rigorous imprisonment of three months.
d) The sentences to run consecutively.
e) Record indicates that, the Appellants were arrested on or
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about 8 November, 2010 and are in jail till today.
Appellants thus have undergone entire sentence
including in default sentence till today and therefore are
entitled to be released from jail forthwith, if not required
in any other case.
Appellants therefore are released from jail on their
production of the copy of the present Order, if not
required in any other case.
f) In view of disposal of Appeal No.83 of 2014, Interim
Application No.1122 of 2022 does not survive and is also
disposed off.
g) All the concerned to act on the basis of an authenticated
copy of this Judgment.
(PRAKASH D. NAIK, J.) (A.S. GADKARI, J.)
Digitally signed
by SANJIV
SHARNAPPA
MASHALKAR
Date: 2023.07.12
10:51:03 +0530
SANJIV
SHARNAPPA
MASHALKAR
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 83 OF 2014
WITH
INTERIM APPLICATION NO. 1122 OF 2022
Pandit @ Baban Chimaji Bhutekar,
Residing at, Plot No.19,
Kamlabai Zopadpatti,
Opp. Hakkani Masjid, Road. 10,
Baigainwadi, Govandi, Mumbai-43,
At present undergoing the sentence
imposed upon him at Kolhapur
Central Prison, Kolhapur. …Appellant/Applicant
(Orig. Accused No.3)
V/s.
The State of Maharashtra
(at the instance of
Senior Inspector of Police,
Shivaji Nagar Police Station, Mumbai
District Mumbai
vide C.R. No.359 of 2010 …Respondent
WITH
CRIMINAL APPEAL NO. 310 OF 2014
Vijay @ Bapu Chimaji Bhutekar,
Having address at Plot No.19,
Kamlabai Zoparpatti,
Opp. Hakkani Masjid, Road. 10,
Bainganwadi, Govandi,
Mumbai-400 043,
Kolhapur Jail Prison No.5282. …Appellant
(Orig. Accused No.2)
V/s.
The State of Maharashtra
At the instance
Shivaji Nagar Police Station,
Mumbai. …Respondent
(Orig. Complainant)
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WITH
CRIMINAL APPEAL NO. 554 OF 2014
Arvind Ganpat Lavte,
Age: years, Occup.: Labour,
R/o Plot No.19, Kamlabai Zopadpatti,
Opp. Hakkani Masjid,
Govandi, Mumbai-400 043,
(confined as Convict No.C-6068
Kolhapur Central Prison,
Kalamba, Kolhapur. …Appellant
(Orig. Accused No.1)
V/s.
The State of Maharashtra
(at the instance of
Shivaji Nagar Police Station, Mumbai)
in C.R. No.359 of 2010
tried in Sessions Case No.157 of 2011 …Respondent
Dr. Yug Mohit Chaudhry for the Appellant in Appeal No.83 of 2014 and for
the Applicant in Interim Application No.1122 of 2022.
Mr. Abhaykumar Apte, Appointed Advocate for the Appellant in Appeal
No.554 of 2014.
None for Appellant in Appeal No.310 of 2014.
Ms. G.P. Mulekar, APP for the Respondent-state.
CORAM : A. S. Gadkari And
Prakash D. Naik, JJ.
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RESERVED ON : 8 MARCH, 2023.
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PRONOUNCED ON : 16 JUNE, 2023.
JUDGMENT (Per- A.S. Gadkari, J.) :-
1) Appellants, (Orig. Accused No.3 in Appeal No.83 of 2014, Orig.
Accused No.2 in Appeal No.310 of 2014 and Orig. Accused No.1 in Appeal
No.554 of 2014) by these separate Appeals have impugned Judgment and
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Order dated 6 September, 2013 passed in Sessions Case No.157 of 2011 by
the learned Additional Sessions Judge, Greater Mumbai, convicting them
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under Sections 302 and 506 (II) read with Section 34 of the Indian Penal
Code (for short, “IPC”) and are sentenced to undergo imprisonment for life
and to pay a fine of Rs.1,000/- each, in default to undergo rigorous
imprisonment for six months, for the offence punishable under Section 302
r/w Section 34 of the IPC and to undergo rigorous imprisonment for one
year and to pay fine of Rs.500/- each in default to undergo rigorous
imprisonment for two months for the offence punishable under Section 506
(II) r/w Section 34 of the IPC. The trial Court has directed that, both the
sentences shall run concurrently.
2) For the sake of brevity, the Appellants hereinafter will be
referred to as per their original nomenclature before the trial Court i.e.
Appellant in Appeal No.83 of 2014-Pandit @ Baban C. Bhutekar as accused
No.3 (A-3); Appellant in Appeal No.310 of 2014-Vijay @ Bapu C. Bhutekar,
as accused No.2 (A-2) and Appellant in Appeal No.554 of 2014-Arvind G.
Lavte, as accused No.1 (A-1).
3) Heard Dr. Chaudhry learned Advocate for the Appellant in
Appeal No.83 of 2014 and Interim Application No.1122 of 2022, Mr.
Abhaykumar Apte, Appointed Advocate for the Appellant in Appeal No.554
of 2014 and Ms. Mulekar, learned APP for the Respondent-State.
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In pursuance of Order dated 19 January, 2023, Advocate
Arvind V. Bedekar was appointed by the High Court Legal Services
Committee, Mumbai, to represent Appellant in Appeal No.310 of 2014. As
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none appeared for the Appellant (A-2) on the date of hearing, we
requested Dr. Chaudhry, to also represent and espouse the cause of A-2. He
gracefully acceded our request and argued the case of A-2 at length on
merits.
4) Shorn of unnecessary details, the prosecution case in brief is as
under:-
i) Sayyed Khan (PW-1) and Sarver Khan (deceased) used to
take contracts for renovation of old huts in the vicinity of Kamlabai
Zopadpatti, Govandi, Mumbai. They were allotted work of renovation of
huts in plot No.19, Road No.10 of Kamlabai Zopadpatti. Appellants and
juvenile in conflict with law, namely Vikram Bhutekar i.e. son of Vijay @
Bapu Bhutekar (A-2) were residing in plot No.19.
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ii) On 4 November, 2010, Vijay (A-2) demanded a party
from Sarver Khan. Arvind (A-1) also demanded a party from Sayyed Khan
(PW-1). A-1 and A-2 both threatened Sayyed Khan (PW-1) and Sarver
Khan (deceased) of serious consequences if the party is not given, therefore
Sarver Khan (deceased) demanded money from PW-1 for giving party to
them, but PW-1 refused to give money.
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iii) On 7 November, 2010 at about 7.00 p.m. Sayyed Khan
(PW-1), Sarver Khan (deceased), Mohammad Salim Mohammad Saeed
Malik (PW-5) and Juber Ahmed Vashiullah Shaikh (PW-14) came together
in front of Hakkani Masjid. Sarver Khan (deceased) was talking with PW-1,
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PW-5 and PW-14. At that time, all the Appellants along with juvenile
accused came at the said place. Vijay (A-2) abused deceased in filthy
language and questioned him as to why he was not giving party. All the
accused caught Sarver Khan (deceased) and abused him in filthy language.
Vijay (A-2) took out Gupti (sword stick) which was concealed on the back
side of his trouser and assaulted Sarver Khan on his chest and hand. Pandit
@ Baban (A-3) assaulted Sarver Khan on his neck by a Gupti. Juvenile
accused assaulted deceased with a Gupti on his back. Arvind (A-1) dealt a
blow of Gupti on the right side of waist of Sarver Khan.
iv) Sarver Khan fell on the ground and screamed for help.
However, all the accused threatened PW-1, PW-5 and other persons by
showing their weapons and told them that, if anybody comes forward for
help, they would be cut. PW-1, PW-5 and other persons got frightened and
people in the vicinity closed their shops. All the accused thereafter left the
spot of incident.
v) Sayyed Khan (PW-1), Mohammad Salim Mohammad
Saeed Malik (PW-5) and Juber Shaikh (PW-14) then went to Sarver Khan
(deceased), put him in an auto-rickshaw and took him to Shatabdi Hospital.
Mr. Riyaz Khan i.e. father of Sarver Khan (deceased) met them in the way
and also joined them to go to hospital. Sarver Khan was declared dead
before admission by the hospital authority.
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vi) After receipt of information about the death of Sarver
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Khan, Shivaji Awati (PW-15), Police Sub-Inspector who was on duty on 7
November, 2010 as S.H.O. at Shivaji Nagar Police Station, Govandi,
Mumbai, accompanied by A.P.I. Mr. Valatkar went to Shatabdi Hospital.
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First Information Report dated 7 November, 2010 (Exh-24) was given by
PW-1 and recorded by PW-15. Inquest panchanama (Exh-28) and spot
panchanama (Exh-30) were drawn by PW-15. Clothes of deceased Sarver
Khan were seized under a panchanama (Exh-32). Appellants were arrested
in due course of time and their clothes were also seized.
vii) Dr. Shivaji V. Kachare (PW-12) conducted autopsy on the
dead body of Sarver Khan. He was working as Medical Officer at Rajawadi
P. M. Centre at the relevant time. The Post-Mortem Report is at Exh-50. He
noticed following external injuries which are recorded in column No.17 of
Post-Mortem Report-
i) Incised wound at right lateral of neck region 2 cm, below from
right ear pinna, size of 2 cm x 1 cm x 1.5 cm deep. Radish
brown in colour one angle acute.
ii) Incised wound at anterior of right chest below right clavicle
size of 3 cm x 2 cm, Cavity deep, Radish brown in colour, One
angle acute.
iii) Incised wound at right chest anteriorly below injury no.2 size
of 3 cm x 2 cm, Cavity deep, Radish brown in colour, One angle
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acute.
iv) Incised wound at anterior of right chest below injury no.3. Size
of 3 cm x 2 cm, Cavity deep, Radish brown in colour, One angle
acute.
v) Deep penetrating wound at right illiac fossa above right illiac
crest, size of 3 cm x 1.5 cm, Cavity deep (through & through up
to posterio region) Radish brown oval shape one angle acute.
vi) Incised wound at posterior of right scapula, vertical size of 3.5
cm x 1.5 cm mussel deep, Radish brown one angle acute.
vii) Incised wound at anterior of left middle finger size of 3 cm x 1
cm bone deep (evidence of fracture dislocation first phalyngeal
of middle finger.) Radish brown irregular shape.
viii) Incised wound at right lumber region. Para vertebra line size
of 2 cm x 1 cm, Muscle deep, Radish brown one angle acute.
ix) Incised wound (Exit of injury no.5 at Right lumber size of 3 cm
x 1 cm, Cavity deep, Radish brown over shaped.)
All these injuries were anti-mortem. He also noticed following
internal injuries which are recorded in column Nos.20 and 21 of Post-
Mortem Report-
i) Column 20(A) walls ribs cartilages–evidence of fracture 3,4,5,6
right sides ribs posteriorly. Radish and hemorrhagic 20(b)
pleura ruptured at anterior and posterior region right side
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hemorrhagic. Right lung evidence of incised wound at right
apical region 2 cm x 2 cm into muscle deep, Radish brown.
Evidence of inside wound right middles lobe size 1.5 cm x 1.5
cm Muscle deep. Radish brown.
II) In column no.21 corresponding injuries mentioned as follows-
i) Walls and peritoneum–ruptured wall at right pelvic and right
illiac and hypochondrium region. Radish. Small intestine and
large intestine-evidence of rupture illiam, part of jejuncum,
caecum and descending and sigmoid colon. Radish and
hemorrhagic.
ii) Liver-evidence of rupture at right side base of liver, Radish.
iii) Kidneys-right kidney superior pol and right supra region
rupture hemorrhagic.
He opined that, the cause of death was due to shock and
hemorrhage due to multiple incised wounds (unnatural).
viii) Further investigation of the crime was carried out by
Police Inspector Mr. Vikas D. Sonawne (PW-16). Weapons used in the crime
were recovered at the instance of accused persons by complying with
necessary legal formalities. Deceased’s clothes and blood stained samples
were sent for chemical analysis. After receipt of reports from FSL and
completion of investigation of the crime, PW-16 submitted charge-sheet in
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the Court of Metropolitan Magistrate, 56 Court Kurla, Mumbai.
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5) As the offence punishable under Section 302 of the Indian
Penal Code is exclusively triable by the Court of Sessions, the learned
Magistrate committed the case to the Court of Sessions. The trial Court
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framed charge below Exh-12 on 6 August, 2011. The charge was read
over and explained in Marathi vernacular to the accused to which they
pleaded not guilty and claimed to be tried.
Prosecution in support of its case, examined in all 16 witnesses.
The statements of accused under Section 313 of the Cr. P. C. were recorded
which are at Exhs-76 to 78. Accused No.2 entered into witness box as
defence witness and examined himself. All the accused questioned and
controverted the case of the prosecution.
6) The trial Court after hearing learned Advocates for the
respective parties, was pleased to convict and sentence Appellants by its
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impugned Judgment and Order dated 6 September, 2013 as noted
hereinabove.
7) At the outset, it is to be noted here that, the trial Court has not
accepted the recovery of weapons and seizure of clothes of the Appellants
and has in fact rejected the evidence laid by the prosecution in that behalf.
The detailed discussion with respect to the rejection of evidence of
prosecution for seizure of weapons and clothes is discussed in detail by the
trial Court in paragraph Nos. 63 to 67 of the impugned Judgment. The trial
Court has not accepted the evidence of seizure of clothes and weapons
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predominantly on the ground that, the weapons were not sealed on seizure
and the clothes of the Appellants were not described as having blood stains
in the respective panchanamas. The weapons used by the Appellants have
not been identified by the prime witnesses i.e. PW-1 and PW-11. That, the
said panchanamas and the testimonies of the relevant witnesses suffer from
material contradiction.
8) It is not in dispute that, the prosecution has not challenged the
said findings recorded by the trial Court. Therefore, what remains for our
consideration is the ocular evidence of material witnesses i.e. PW Nos.1, 5,
13 and 14 only.
It is necessary to note here that, Juber Shaikh (PW-14) did not
support prosecution case and therefore was declared hostile by the
prosecution. In his elaborate cross-examination by the learned APP, nothing
beneficial to the prosecution has been elicited and brought on record.
9) PW-1 in his testimony has deposed that, he was residing in the
vicinity and at the said address for last 17-18 years along with his wife and
two children. In the year 2010, he was taking small contracts of
construction in the said area. On some occasions, he used to do the
construction work with Sarver R. Khan (deceased) and some times
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independently. That, on 4 November, 2010 he received some work of
construction repairing at plot No.19. He was doing the said work along
with Sarver Khan. In the afternoon, during lunch break Sarver Khan
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informed him that, A-2 was demanding a party from him and therefore
Sarver Khan asked money from PW-1. A-1 had also demanded a party in
the evening and had told him that otherwise he will look at him. PW-1 did
not give money to Sarver Khan and told him that, the Accused persons are
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from their area and they would see them afterwords. On 7 November,
2010 at around 7.00 p.m. PW-1 and Sarver Khan came back from work to
Road No.10 near Hakkani Masjid. PW-1 along with PW-5, 14 and Sarver
Khan (deceased) was standing near a table at a tea stall. All the accused
along with juvenile accused Vikram came at the said spot and started
abusing him by saying that, why he did not give party to them. PW-1 along
with other witnesses moved behind. All the Appellants took out Gupti and
stabbed Sarver Khan. A-2 assaulted Sarver Khan on chest and hand, A-3
assaulted Sarver Khan on his neck, juvenile accused Vikram assaulted
Sarver Khan on the back. A-1 assaulted Sarver Khan on the lower side of
his waist. As the crowd gathered there, A-1 threatened them saying that,
no one should come forward or else he would see them. Sarver Khan fell
down and was screaming. All the four accused went from the scene of
offence. PW-5, PW-14 and Rajubhai (Riyaz Khan) picked up Sarver Khan,
put him in an auto-rickshaw and took him to Shatabdi Hospital. The doctor
present at hospital, after examining Sarver Khan informed that, he was
already dead. Rajubhai is father of Sarver Khan. His statement
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(Complaint) dated 7 November, 2010 (Exh-24) was recorded by police.
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PW-1 knew all the accused persons as they were residing in the same area.
In his cross-examination he has admitted that, two cases were
registered against him with Shivaji Nagar Police Station, Mumbai under
Section 326 of the Indian Penal Code. That, one of the case was registered
against him for assaulting the wife of A-2 i.e. Vijay Bhutekar on her head.
That, the said case was registered after the arrest of A-2 in the present case
and when he was in jail. That, he was not released on bail in the said case.
He has admitted that, near the spot of incident there was a shop of
wholesale of betel-nut, one Pan (betel leaf) shop and 4-5 other shops.
10) PW-5 in his testimony has deposed that, since last 18-20 years
prior to the incident, he was residing opposite Hakkani Masjid, Govandi,
Mumbai. He knew complainant (PW-1) and Sarver R. Khan (deceased) so
also all the accused persons as all of them were residing in the same area.
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On 7 November, 2010 in the evening between 6.45 to 7.00 p.m., he, PW-1,
Sarver Khan (deceased) and Juber Shaikh (PW-14) were present in front of
Hakkani Masjid and were chit-chatting. All the accused along with juvenile
accused came near them. After seeing PW-1 and Sarver Khan, the said
accused persons abused them and scolded, why they are not giving party.
They dragged Sarver Khan. A-2 took out Gupti from the back side of his
trouser and give blows on the chest and middle finger of the hand of Sarver
Khan, A-3 took out Gupti and gave blow of it on the neck of Sarver Khan, A-
1 gave blow of Gupti on the right side above the waist of the Sarver Khan.
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He saw this assault and went back. Sarver Khan fell down on the ground.
He along with others went to help Sarver Khan. At that time, all the
accused showed Gupti to them and the mob, abused in filthy language and
threatened of dire consequences if somebody comes forward. Accused
persons then dispersed from the spot. Thereafter, he, PW 1, PW-4 and
Riyaz Khan i.e. father of deceased of Sarver Khan took Sarver Khan to
Shatabdi Hospital. Doctor examined Sarver Khan and declared him dead.
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Police recorded his statement on 8 November, 2010.
In his cross-examination he has admitted that, he did not go by
rickshaw in which deceased was taken to hospital. He did not help to lift
deceased and take him to rickshaw. PW-1, PW-14 and Riyaz Khan lifted
Sarver Khan, put him in the rickshaw and took him to the hospital. It
required 45 minutes for him to reach the hospital from Hakkani Masjid.
11) PW-13 has deposed that, since 2-3 years prior to the date of
incident, he was residing at Bainganwadi, Govandi, Mumbai and was
running a Pan (betel leaf) Shop near Hakkani masjid on road No.10. He
knew PW-1 and Sarver Khan (deceased). He also knew all the accused
persons. All the accused used to reside in plot No.19 of Bainganwadi. The
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incident occurred on 7 November, 2010 at 7.00 p.m. near the shop of
Yusuf Chinesewala, which was located in front of his Pan Shop. That, PW-1
and deceased were chit-chatting in front of the shop of Yusuf Chinesewala.
After some time, Appellants and juvenile accused arrived there and
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altercation took place between PW-1, Sarver Khan and accused persons and
they started fighting. All the three accused took out Gupti and gave blows
of it on deceased. Deceased started shouting. Some persons tried to save
deceased however they saw Gupti in the hands of Appellants and therefore
they had no daring to rescue the scuffle. He thereafter closed his shop and
stopped there for some time. Sarver Khan was lying on the ground. PW-1
and some other persons took Sarver Khan to hospital by rickshaw. On the
next day, when he went to open his shop, his neighbours informed him that,
Sarver Khan succumbed to death. Police interrogated him and recorded his
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statement on 11 November, 2010. His statement under Section 164 of the
Cr.P.C. was also recorded before the Metropolitan Magistrate, Kurla.
12) Perusal of aforesaid testimonies would indicate that, PW-13 is
an independent witness. He has deposed about the presence of PW-1 at the
scene of offence at the time and date of incident, however has not deposed
about the presence of PW-5.
13) At this stage, a useful reference can be made to a decision of
the Supreme Court in the case of Vadivelu Thevar vs. The State of Madras
reported in AIR 1957 S.C. 614, wherein the Supreme Court has enumerated
three categories of witnesses namely, (i) wholly reliable (ii) wholly
unreliable (iii) neither wholly reliable nor wholly unreliable.
14) Admittedly, PW Nos.1 and 5 were friends of deceased Sarver
Khan. Therefore they were having every reason to put-forth an
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exaggerated version of the incident. They have not deposed about presence
of PW No.13 at the scene of offence. According to us, PW Nos.1 and 5
would fall in the category of ‘neither wholly reliable nor wholly unreliable’
witnesses as has been termed by the Hon’ble the Supreme Court in the case
of Vadivelu Thevar (Supra). PW No.13 is an independent witness and
perusal of his evidence would clearly indicate that, he is a wholly reliable
witness.
15) Both the learned Advocates appearing for the Appellants
submitted that, the incident occurred after altercation between the
Appellants and PW-1 along with deceased which was ensued in a free fight.
The Appellants did not act in cruel and unusual manner and they did not
assault Sarver Khan as soon as he fell on ground, therefore Exception 4 of
Section 300 of IPC would apply to the present case and the act committed
by the Appellants would fall within the purview of Section 304 (part-II) of
the IPC.
16) To bring a case within Exception 4 to Section 300 of IPC, all the
ingredients mentioned in it must be found. It is to be noted that the word
‘fight’ occurring in Exception 4 to Section 300 of IPC is not defined in the
IPC. It takes two to make a fight. To invoke Exception 4 to Section 300 of
IPC, four requirements must be satisfied viz.:-
i. It was a sudden fight;
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ii. There was no premeditation;
iii. The act was done in the heat of passion and
iv. The assailant had not taken undue advantage or acted in a
cruel or unusual manner.
The cause of the quarrel is not relevant nor it is relevant as to who offered
the provocation or started to assault first, but what is important is that the
occurrence must have been sudden and not premeditated and the offender
must not have acted in a fit of anger and must not have taken any undue
advantage or acted in a cruel or unusual manner. When during the course
of a sudden quarrel, a person in the heat of moment, attacks the other
person and causes injury, one of which proves to be fatal, the accused
would be entitled to the benefit of this exception.
The Hon’ble Supreme Court in the case of Sukhbir Singh Vs.
State of Haryana, reported in (2002) 3 SCC 327, while analyzing the
provisions of Exception 4 of Section 300 read with Section 304(II) of I.P.C.
has held that, to avail the benefit of Exception 4 the defence is required to
probabilise that the offence was committed without premeditation in a
sudden fight, in the heat of passion upon a sudden quarrel and the offender
had not taken any undue advantage and the offender had not acted in a
cruel or unusual manner. The exception is based upon the principle that in
the absence of premeditation and on account of total deprivation of self-
control but on account of heat of passion, the offence was committed
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which, normally a man of sober urges would not resort to. Sudden fight,
though not defined under the Act, implies mutual provocation. It has been
held by the courts that a fight is not per se palliating circumstance and only
unpremeditated fight is such. The time gap between quarrel and the fight is
an important consideration to decide the applicability of the incident. If
there intervenes a sufficient time for passion to subside, giving the accused
time to come to normalcy and the fight takes place thereafter, the killing
would be murder but if the time gap is not sufficient, the accused may be
held entitled to the benefit of this exception.
The evidence of PW-13 clearly reveals that, initially there was
altercation which followed in a free fight and then Appellants assaulted the
deceased. The evidence on record shows that the appellants did not act in
a cruel or unusual manner. They did not assault deceased the moment he
fell on ground and fled from the spot. Looking to all these facts, we are of
the considered opinion that the present case will be squarely covered by
exception 4 of Section 300 and would fall under the perview of Section 304
(Part II) of IPC.
16) As noted earlier, PW-13 is an independent witness and a
minute perusal of his testimony would clearly reveal that, after the
Appellants along with juvenile accused arrived at the spot of incident, an
altercation took place between PW-1 and Sarver Khan on one side and
accused persons on the other-side. The said altercation ensued in a fighting
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and thereafter all the three accused persons took out Gupti and gave blows
of it on the deceased. Deceased fell on the ground and started screaming.
The Appellants thereafter left the scene of offence by threatening the people
gathered there. The testimony of PW-13 is fully reliable and therefore his
evidence is binding on the prosecution.
17) Undoubtedly, the above criminal act of the Appellants which
must be held to be conclusively proved in view of the evidence on record,
clearly indicate that, they shared some common intention however the
question arises for consideration, as to whether their common intention
was to commit the murder of Sarver Khan. According to us, there is no
evidence on record to indicate that, the Appellants wanted to do away with
Sarver Khan and by conspiring for committing the said act, they came at the
scene of offence.
In the instant case, concededly there was no enmity between
the parties and there is no allegation of prosecution that, before the
occurrence of the incident i.e. actual assault on the Sarver Khan, the
Appellants premeditated to commit the crime in question.
18) Perusal of evidence on record clearly indicates that, the
prosecution has established beyond reasonable doubt that, the Appellants
are also guilty of the offence under Section 506(II) read with Section 34 of
the IPC.
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19) After taking into consideration the entire evidence of
prosecution, this Court is of the view that the act committed by the
Appellants falls within the purview of Exception 4 of Section 300 and
therefore the Appellants are guilty of commission of offence under Section
304 (II) read with Section 34 of the IPC.
Taking into consideration the facts of the present case in its
totality and its overall view, we are of the opinion that the sentence
imposed upon the Appellants under Section 506(II) read with Section 34 of
the IPC by the trial Court be run consecutively after they undergo sentence
under Section 304(II) of the IPC.
Hence, the following Order.
ORDER
a) All the Appeals are partly allowed.
b) Appellants have been held guilty for commission of
crime under Section 304(II) read with Section 34 of the
Indian Penal Code and are sentenced to suffer rigorous
imprisonment for a period of ten years and to pay a fine
of Rs.1 lac each, in default of payment of fine to further
undergo rigorous imprisonment of one year.
c) Appellants are also held guilty for the commission of
offence under Section 506(II) read with Section 34 of
the IPC and are sentenced to suffer rigorous
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imprisonment for a period of one year and to pay a fine
of Rs.5,000/- each, in default of payment of fine to
further undergo rigorous imprisonment of three months.
d) The sentences to run consecutively.
e) Record indicates that, the Appellants were arrested on or
th
about 8 November, 2010 and are in jail till today.
Appellants thus have undergone entire sentence
including in default sentence till today and therefore are
entitled to be released from jail forthwith, if not required
in any other case.
Appellants therefore are released from jail on their
production of the copy of the present Order, if not
required in any other case.
f) In view of disposal of Appeal No.83 of 2014, Interim
Application No.1122 of 2022 does not survive and is also
disposed off.
g) All the concerned to act on the basis of an authenticated
copy of this Judgment.
(PRAKASH D. NAIK, J.) (A.S. GADKARI, J.)
Digitally signed
by SANJIV
SHARNAPPA
MASHALKAR
Date: 2023.07.12
10:51:03 +0530
SANJIV
SHARNAPPA
MASHALKAR
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