Full Judgment Text
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CASE NO.:
Appeal (crl.) 651-652 of 2001
PETITIONER:
Rajendra Shantaram Todankar
RESPONDENT:
State of Maharashtra & Ors.
DATE OF JUDGMENT: 07/01/2003
BENCH:
R.C. LAHOTI & BRIJESH KUMAR.
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Eight accused persons, namely, Ashok Bhikaji Gurav (accused
no.1), Nathuram Bhikaji Gurav (accused no.2), Santosh @ Kalya
Jagannath Shirwadkar (accused no.3), Santosh @ Babya Dashrath
Nagvekar (accused no.4), Ravindra @ Bobby Anant Surve (accused
no.5), Anant @ Papya Jagannath Shirodkar (accused no.6), Prakash @
Vatanya Laxman Pednekar (accused no.7) and Rajendra Shantaram
Todankar (accused no.8) were tried on several charges framed under
Sections 143, 144, 147, 302, 302/149, 302/34, 307, 307/149, 307/34,
324, 324/149, 324/34 and 324/511 IPC. On trial all the accused
persons were held to have committed offences punishable under
Sections 143, 144, 147, 302/149 and 324/149 IPC. For offence under
Section 302 read with Section 149 IPC each of the accused persons
was sentenced to suffer imprisonment for life and to pay a fine of
Rs.1000/-, in default of payment to suffer further R.I. for 6 months.
For offence under Section 324/149 IPC each of the accused was
sentenced to suffer R.I. for 6 months. Though all the accused were
also convicted for the offences punishable under Sections 143, 144
and 147 of the IPC but no separate sentences were awarded thereon.
All the eight accused persons preferred an appeal before the High
Court. During the pendency of the appeal Santosh @ Babya Dashrath
Nagvekar and Prakash @ Vatanya Laxman Pednekar the accused
numbers 4 and 7, died. The appeal surviving for decision as regards
the six accused was held liable to be dismissed upholding the
conviction as recorded and the sentences as passed by the Trial Court.
Ashok Bhikaji, accused no.1 and Nathuram Bhikaji accused
no.2 filed SLP(Crl.) No.3738/2000 which was dismissed as not
admitted by this Court on 25.1.2001. Accused no.8, Rajendra
Todankar filed SLP(Crl.) 4205/00 which has been registered as
Crl.Appeal No.651/2001 on leave to appeal having been granted. SLP
(Crl.) preferred by Santosh Shirwadkar, Ravindra Surve and Anant
Shirodkar (accused nos.3, 5 and 6) has been registered as Criminal
Appeal No.652/02 on leave being granted. Thus, in substance it is the
guilt of the accused nos.3, 5, 6 and 8 which survives for determination
in these appeals.
For the sake of convenience the accused persons shall be
referred to by their numbers as they were arrayed before the Sessions
Court. Reference to accused nos. 1 and 2 though their SLP(Crl) has
been dismissed and to accused nos.4 and 7, who have died during the
pendency of their appeal in the High Court is being made where
necessary only for the purpose of determining the guilt of the accused-
appellants before us.
In the locality known as Prabhadevi situated within the
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jurisdiction of police station Dadar of Mumbai there is a place known
as Hatiskar Wadi. Nariman Bhat Nagar is an adjoining locality. One
Mukesh Purav resides in Hatiskar Wadi. Ashok Gurav, accused no.1
resides in Nariman Bhat Nagar. These two persons are ring-leaders of
their respective gangs formed in the two localities and they are
involved in various illegal activities. The injured persons and the
accused persons are residents of these two localities and were known
to each other since before the incident. An acute rivalry prevails
between the two groups. Prior to this incident on the festival of
Janmashtami there was a competitive game played known as Dahi
Handi, also known as ’Govinda’, wherein both the gangs had
participated and quarrelled with each other. The present incident took
place on 27th September, 1991 at about 8.30 p.m.
There is a four-storeyed building the ground-floor whereof is
occupied by a restaurant known as ’Sanket Bar’. There is a road in
front of the hotel. The door leading to the way for upper floors of the
building is by the side of the hotel. There is a pan shop near the hotel.
By the side of the hotel there are other shops providing the look of a
commercial complex.
Gopikrishna, who died in the incident, was standing in front of
the entrance door of the building. Jaideep Bhosale, PW3 and
Dyandeo Sawant, PW4 were standing near Gopikrishna. The three
were busy talking to each other. At a little distance from there one
Sanjay Patil, PW1 was standing. Apparently, Sanjay Patil and the trio
consisting of Jaideep, Dyandeo and Gopikrishna had nothing to do
with each other. Sanjay, PW1 saw all the eight appellants coming
towards the hotel. The accused persons passed by his side and
reached the place where the three persons including Gopikrishna were
chit-chatting. The accused persons were armed with naked weapons
such as swords, choppers and gupti. As soon as they reached near
Gopikrishna they opened an assault on all the three persons standing
there. Jaideep and Dyandeo ran away from the place. Gopikrishna
tried to escape for his life by running towards the door providing
access to the staircase leading to upper floors of the building. He
went on running upto the fourth floor leaving a trail of blood behind.
The accused persons chased him and injured him fatally. He fell
down in a pool of blood on the landing of the fourth floor.
Sanjay, PW1 apprehended that he may be assaulted and injured.
He tried to run away from the place of the incident. He was noticed
by the appellants; some of them followed him and inflicted injuries on
his person.
The appellants then shouted loudly so as to create terror in the
locality. The frightened neighbours downed the shutters of their
shops and houses. The appellants ran away. Sanjay, PW1 picked up a
taxi and proceeded to KEM hospital for medical help and treatment.
In the meantime the witnesses Jaideep and Dyandeo returned to the
place of the incident. They reached the fourth floor and found
Gopikrishna lying injured and bleeding profusely. They brought him
down and removed him to KEM hospital where he was declared dead.
A police constable on duty at the hospital flashed a message to the
police station whereon PSI Agarkar and PI Pisal rushed to the
hospital with police force. The statement of Sanjay was recorded, got
signed by him and sent to the police station where it was registered as
FIR of the incident at 11.30 p.m. The investigation commenced.
Inquest on the dead body of Gopikrishna was held. His clothes were
seized. Autopsy on the dead body was performed by Dr. Subhash,
PW14. The following injuries were found on his person :
(i) Incised wound on back of head, 4 cm x 1.0 cm. x
muscle deep. On right side of midline in pareieto-
occipital region
ii) Incised stab wound on left gluteal fold. Oblique
wound. Lower and pointed upper end. Blunt
regged contused. Dimensions : 2.5 cm x 0.8 cm x
deep in muscles.
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iii) Incised wound on right thumb palmar aspect.
Vertical wound 1.5 cm x 0/5 cm.
iv) Scratch on right occipital bone outer table in base
of injury no.1 with contusion in layer of scalp deep
to the injury.
On dissecting, the injury no.2 was found to be deep in
gluteal muscles and had cut in gluteal vessels with extensive
haemorrhage found in muscles. Total depth of injury was 15.0
cm.
In the opinion of Dr. Subhash, the cause of death was
haemorrhage and shock due to injury to major blood vessels by sharp-
edged weapons. All the injuries were ante-mortem and sufficient in
the ordinary course of nature to cause death. When Dr. Subhash was
examined in the Court he stated that the injuries on the person of the
deceased could be caused by weapons like gupti and chopper.
Though buttock is not a vital organ of the body but in case of the
deceased important blood vessels in the buttock were injured and so
the death was caused. In spite of having sustained the injuries, the
deceased could have run and climbed the stairs to save his life.
Sanjay Patil, PW1 was medico-legally examined by Dr.
Subhash Shivade who prepared the memo of injuries. However by the
time the trial commenced Dr. Shivade had left the Government
service and gone to England. Dr. Arun, PW17, who had worked with
Dr. Shivade, was examined. He proved the memo of injuries
containing the particulars of the injuries suffered by Sanjay, PW1.
The following injuries were found on the person of Sanjay Patil :
1) Incised wound in right perictal region 6 x 2 cm,
bone deep
2) Incised wound on right elbow, joint opened.
3) Multiple abrasions on back and right scapula.
4) Stab injuries on right hypocondrium (abdomen)
2.5 x 2x3 cms, about 4 cms from the subcostal
region, about 10 cms lateral to the mid line.
In the opinion of Dr. Arun, looking to the nature of injuries,
death was unlikely from such injuries. The injuries could have been
caused by weapons like gupti and chopper. There was no bony injury.
No vital organ of the body was cut or damaged.
The prosecution case hinges upon the testimony of four
witnesses, namely, Sanjay Patil (PW-1), Jaideep (P-3), Dyandeo
Sawant (PW-4) and Prashant (PW-5). We will analyse the testimony
of these four witnesses so as to find out the nature of the offence
committed and the involvement of the accused persons. Whether all
the accused persons, as alleged, were involved in the incident, and if
so, to what extent ?
We have already noticed that the localities to which the accused
persons and the deceased and the witnesses belong are situated
adjoining each other. The presence of the accused persons at the
place of occurrence can be natural as well. Though the witnesses
have deposed to all the eight accused persons having come together at
the place of the incident and all the accused persons having assaulted
the deceased Gopikrishna and the injured Sanjay Patil (PW-1),
however, a closer scrutiny of the testimony of the eyewitnesses
reveals that, in fact, there are two incidents of assault which have
taken place in quick succession. The nature of the guilt attributable to
the accused persons or the criminal liability which can be fastened on
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them shall have to be determined by reference to the two assaults.
There is no material available on record to hold that the deceased
Gopikrishna and the injured Sanjay Patil had anything to do with each
other or the common object of the alleged unlawful assembly of eight
persons was to cause the death of Gopikrishna as also to cause injuries
to Sanjay Patil and such common object was shared by all the eight
accused persons. A careful reading of the testimony of the
eyewitnesses reveals that while accused Nos. 1 to 5 assaulted the
deceased Gopikrishna, the other three accused persons have allegedly
participated in assault on Sanjay Patil. We are referring to assault by
three accused persons, namely, accused Nos. 6 to 8 on Sanjay Patil by
way of stating the prosecution case because as we will discuss shortly
hereinafter, we have grave doubts if Rajendra Todankar, the accused
No. 8, had really participated in the assault and, therefore, whether in
the facts and circumstances of the case he deserves to be allowed
benefit of doubt.
Section 149 of the Indian Penal Code provides that if an offence
is committed by any member of an unlawful assembly in prosecution
of the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that
object, every person who at the time of the committing of that offence,
is a member of the same assembly is guilty of that offence. The two
clauses of Section 149 vary in degree of certainty. The first clause
contemplates the commission of an offence by any member of an
unlawful assembly which can be held to have been committed in
prosecution of the common object of the assembly. The second clause
embraces within its fold the commission of an act which may not
necessarily be the common object of the assembly nevertheless the
members of the assembly had knowledge of likelihood of the
commission of that offence in prosecution of the common object. The
common object may be commission of one offence while there may
be likelihood of the commission of yet another offence the knowledge
whereof is capable of being safely attributable to the members of the
unlawful assembly. In either case every member of the assembly
would be vicariously liable for the offence actually committed by any
other member of the assembly. A mere possibility of the commission
of the offence would not necessarily enable the Court to draw an
inference that the likelihood of commission of such offence was
within the knowledge of every member of the unlawful assembly. It
is difficult indeed, though not impossible, to collect direct evidence of
such knowledge. An inference may be drawn from circumstances such
as the background of the incident, the motive, the nature of the
assembly, the nature of the arms carried by the members of the
assembly, their common object and the behaviour of the members
soon before, at or after the actual commission of the crime. Unless
the applicability of Section 149 either clause is attracted and the
Court is convinced, on facts and in law both, of liability capable of
being fastened vicariously by reference to either clause of Section
149 of IPC merely because a criminal act was committed by a
member of the assembly every other member thereof would not
necessarily become liable for such criminal act. The inference as to
likelihood of the commission of the given criminal act must be
capable of being held to be within the knowledge of another member
of the assembly who is sought to be held vicariously liable for the said
criminal act. These principles are settled. Applying these tests to the
facts found proved beyond reasonable doubt the accused nos.1 to 5
can be held liable for the offence under Section 302/149 IPC for the
assault resulting in death of Gopi Krishna while accused nos. 6 and 7
can be held liable for their individual acts of assault committed on
Sanjay Patil.
They are the accused Nos. 1 to 5 who had assaulted the
deceased and followed him upto the 4th floor. The accused Nos. 1 to 5
armed severally with deadly weapons having initially assaulted the
deceased Gopikrishna when he was standing on the ground floor,
chased him by following him on the staircase leading to the 4th floor
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where he fell down in the pool of blood. So far as accused Nos. 1 to 5
are concerned, it can be safely inferred that they were the members of
unlawful assembly armed with deadly weapons formed with the
common object of fatally injuring the deceased Gopikrishna so as to
cause his death. Their conviction for the offence under Section 302
r/w 149 IPC is liable to be sustained. If death has been caused in
prosecution of common object of unlawful assembly, it is not
necessary to record a definite and specific finding as to which
particular accused out of the members of the unlawful assembly
caused the fatal injury. Once an unlawful assembly has come into
existence, each member of the assembly becomes vicariously liable
for the criminal act of any other member of the assembly committed
in prosecution of the common object of the assembly.
So far as the assault on Sanjay Patil (PW-1) is concerned, the
witnesses do not attribute any overt act qua Sanjay Patil (PW-1) to
the accused Nos. 1 to 5. It appears that while beating the retreat,
some of the accused other than accused nos. 1 to 5 noticed Sanjay
Patil and diverted themselves to an assault on him. Assault on Sanjay
Patil was not pre-planned nor shared as common object by accused
nos.1 to 5. No unlawful assembly was in existence nor formed into
being at the spur of the moment so far as the assault on Sanjay Patil is
concerned.
We would like to deal specifically with the case of Rajendra
Todankar (accused No.8). According to Sanjay Patil (PW-1), he was
assaulted by three accused persons, namely, Anant @ Papya (accused
No. 6) who stabbed on the right side of the stomach with a gupti; by
Prakash Pednekar @ Vatanya (accused No. 7) who dealt a sword blow
on the right side of upper head and by Rajendra Todankar (accused
No. 8) who dealt sura (dragger) blows on his back twice and on the
left arm near elbow, whereafter he fell down. During cross-
examination he stated that the accused Rajendra Todankar had used
his weapon with force while assaulting on him. Prashant (PW-5)
states Vatanya (accused No. 7) and Rajendra Todankar (accused No.
8) assaulted Sanjay Patil. According to this witness, the weapon said
to have been used by Rajendra Todankar was a chopper. During
cross-examination he stated that Rajendra Todankar had dealt chopper
blows forcefully on Sanjay. He further stated that the accused Babya
had also stabbed Sanjay. Apart from the fact that there is divergence
in the statements of the two witnesses as to the weapon which is
attributed to accused no.8, what is more significant is that injuries by
chopper or sura (dragger) are not to be found on the back of Sanjay
and in the manner in which the two witnesses stated the injuries
having been caused to Sanjay forcefully. Such use of sharp weapon
would not result in mere abrasion on the back. There is no injury on
the left arm of Sanjay (PW-1). Thus, the injuries specifically
attributed to accused Rajendra Todankar by Sanjay (PW-1) and
Prashant (PW-5) and consequently the role assigned to him in the
incident is belied by medical evidence. Jaideep (PW-3) and Dyandeo
Sawant (PW-4) have not mentioned even the presence of Rajendra
Todankar much less any participation by him in the assault. This
accused Rajendra Todankar is in government service. In his statement
u/s 313 CrPC he stated that he is a social worker whose activities are
not to the liking of Mukesh Purav, the gang leader, and that is the
reason why he has been falsely implicated. The participation of
Rajendra Todankar (accused No. 8) in the incident is rendered
doubtful.
So far as the accused Anant @ Papya (accused No. 6) and
Prakash @ Vatanya (accused No. 7) are concerned, they cannot be
held to be the members of the unlawful assembly, which assaulted
Gopikrishna. Their assault on Sanjay Patil (PW-1) is proved beyond
reasonable doubt. Each one of them has caused simple injuries by
sharp weapon on the person of Sanjay Patil. Therefore, they can each
be held liable only for an offence punishable u/s 324 IPC. Their
conviction under Section 302 r/w 149 IPC, so far as the murder of
Gopikrishna is concerned, cannot be sustained and must be set aside.
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So also their conviction under Sections 143, 144 and 147 IPC must
go.
For the foregoing reasons, Criminal Appeal No. 651 of 2001
preferred by Rajendra Shantaram Todankar (accused No. 8 in the
Trial Court) is allowed. His conviction is set aside and he is acquitted
of the charges framed against him. He shall be released forthwith if
not required to be detained in connection with any other offence.
In Criminal Appeal No. 652 of 2001 the appellants are Santosh
@ Kalya (A-3), Ravinder @ Bobby (A-5) and Anant @ Papya
Shirodkar (A-6). The conviction of accused Santosh @ Kalya (A-3)
and Ravinder @ Bobby (A-5) under Section 302 r/w 149 IPC along
with the sentence of imprisonment for life are maintained. Their
conviction under Section 324/149 IPC is set aside. So far as accused
Anant @ Papya Shirodkar (A-6) is concerned, his conviction under
Section 302/149 IPC as also under Sections 143, 144 and 147 IPC is
set aside. He is held guilty under Section 324 IPC and for this offence
sentence of R.I. for 6 months is maintained. Criminal Appeal No. 652
of 2001 is allowed in part to this extent.