1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.16 OF 2008 1. Akshya @ Akshay s/o Ramesh Bhalgat, Age 32 years, Occupation Business, R/o 2207, Tapkir Galli, Ahmednagar, District Ahmednagar 2. Ganesh s/o Nandu Korde, Age 27 years, Occu.Labour, R/o Nalegaon Hudco, Ahmednagar, District Ahmednagar .. APPELLANTS (Orig.Accused Nos.1 and 2) Versus 1. The State of Maharashtra 2. Ravi s/o Pyarelal Behl, Age 55 years, Occu.Doctor, R/o Trans-vision Centre, Eastern Command, Command Hospital Complex, Alipur Road, Kolkatta 700 027 (West Bengal) .. RESPONDENTS Shri Joydeep Chatterji, Advocate holding for Shri S.S.Deshmukh and Smt.S.S.Jadhav, Advocates for the appellants Shri S.V.Kurundkar, Additional Public Prosecutor for respondent No.1 Shri Vijay Sharma, Advocate for respondent No.2 CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 19th November 2009 2 ORAL JUDGMENT [ PER P.V. HARDAS , J ] 1. The appellants who stand convicted for offence punishable under Section 302 read with 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.10,000/- each with a default stipulation of undergoing further simple imprisonment for nine months in the event of non payment of fine, by the Additional Sessions Judge, Ahmednagar, by Judgment dated 27.12.2007, in Sessions Case No.80/2006, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.15 Police Head Constable Syed Mir Syed Mehboob was on duty at the Civil Hospital, Ahmednagar on 8.2.2006. On that day at about 1.00 p.m., the P.S.O. directed him to record the statement of injured Rajat s/o Ravi Behl who was admitted in the Military Hospital at Ahmednagar. The aforesaid direction is at Exh.82. P.W.15 Police Head Constable Syed Mir Syed Mehboob accordingly went to the Military Hospital at 1.15 p.m. and enquired as to where the injured had been admitted. The Medical Officer examined injured Rajat and accordingly P.W. 3 15 Police Head Constable Syed Mir Syed Mehboob recorded the statement of injured Rajat at Exh.83. He had also ascertained the consciousness of injured Rajat before recording the statement. P.W.16 Janardan Shelar who was attached to the Tophkhana Police Station as P.S.O., was directed by his senior Officer to register the offence on the basis of the statement at Exh.83 recorded by P.W.15, Police Head Constable Syed Mir Syed Mehboob. Accordingly, P.W.16 Janardan Shelar registered an offence punishable under Section 325, 504 read with 34 and under Section 37 (1) (3) and 135 of the Bombay Police Act vide Crime No.38/2006. P.W.21 Ranjeet Abhinkar who was working as Police Inspector at the Tophkhana Police Station was informed about the recording of statement of injured Rajat by P.W.15 Police Head Constable Syed Mir Syed Mehboob. He accordingly instructed P.W.16 Janardan Shelar to register an offence and to handover the investigation of the said crime to P.S.I. Jadhav. Meanwhile, on 11.2.2006 a fax message was received from the Khadki Military Hospital, Pune about the demise of injured Rajat. The aforesaid fax message is at Exh.97. Accordingly, an entry came to be effected in the station diary and offence punishable under Section 302 of the Indian Penal Code came to be added. The investigation of the said crime came to be entrusted to P.W. 21 Ranjeet Abhinkar. The inquest panchnama came to be drawn at Exh.32 in the presence of witnesses. Post mortem on the dead 4 body of deceased Rajat to be conducted by P.W.10 Dr.Shrikant Chandekar who noticed the following external injuries 1. Injection marks-multiple over pericardium near sternum 2. Red contusion-mid sternum 1 x 2 cm; lower sternum 1.5 x 3 cm 3. Dark red linear abrasions in rectangular form of - D.C. shock over left lower lateral chest and right upper chest 4. Right upper limb injuries : (a) Intradermal contusions over arm antero laterally - verticle linear - six in number, length varying from 9 to 13 cm., breadth 0.5 cm blackish. (b) resolving contusion over medial and postero lateral aspect of arm - length varying from 21 to 28 cms, circumferentially 15 to 18 cm (c) Right hand dorsum and wrist totally contused. Clinically second metacarpal fractured. Resolving contusion (d) Blackish green contusion right palm - totally (e) Resolving contusion right forearm dorsum, totally 5 5. Left upper limb injuries : (a) Resolving contusions - dorsal forearm, U/3, 3 x 3 cm and dorsum of hand and wrist totally. 6. Left lower limb injuries : (a) Five stitched wound over leg anteriorly over shin 13 cm and 20 cm below knee; anteromedianly 12, 16 and 23 cm below knee. stitches varying from 1 to 3 with surrounding abrasions ranging from 1 to 2.5 cm (b) Resolving contusion left leg anteriorly – totally (c) Healing abrasions : left calf 1/3 – 1x2 cm shin U/3 – 1 x 1 cm (d) Left thigh contused medially, blackish, L/3 totally (e) Left tibiofibula fractured, M/3 comminuted 7. Right lower limb injuries : (a) Surgical debridment right upper shin - upper 20 x 8 cm, verticle - muscle deep - which are contused. (b) Right tibiofibula fractured, in mid region comminuted 6 (c) Blackish contusions - Right leg lower 1/3; laterally; foot dorsum - totally; calf in mid region (d) Incised injuries below right knee, medially verticle 0.3 cm (2), muscle deep (e) Skin denuded over calf, L/2, irregularly 8. Healing abrasions over : (a) Right leg U/3, laterally - linear 2 cm and 2 x 3 cm (b) Right shin L/3, 1 x 2 cm (c) Linear, right thigh laterally 2 cm to 4 cm - 4 in lumber (d) Right foot medially M/3 – 0.5 x 2 cm (e) right chest lower, laterally – mid axillary 2 x 3 9. Blackish contusion over : (a) right thigh and hip laterally verticle, 5 to 7 cm x 58 cm (b) Right thigh anteriorly superficial U/3 – 4 x 6 cm (c) Back - oblique across right iliac to left lumbar - superficial 4 to 6 x 26 cm. 7 He, therefore, opined that the contusions, abrasions and the comminuted fracture would be caused by impact of iron rod, pipe and baseball stick i.e. Articles 8, 1 and 10. He, therefore, opined that deceased Rajat died on account of shock following multiple blunt injuries. He also opined that all the injuries were ante mortem injuries. The post mortem report of deceased Rajat is at Exh.50. 3. P.W.21 Police Inspector Abhinkar arrested appellant No.1 Akshay on 12.2.2006 at about 00.30 Hrs. under an arrest panchnama at Exh.102. Statements of witnesses came to be recorded. On 15.2.2006, P.I. Abhinkar directed P.W.13 P.S.I. Pathan to carry out further investigation. On that day, the other accused came to be arrested under arrest panchnama at Exh.103. Search of accused Ganesh came to be conducted and a scooter came to be seized under panchnama at Exh.104. Meanwhile, P.W.13 P.S.I. Pathan took the search of the house of accused Akshay. From the house of accused Akshay one pair of jeans came to be seized which was blood stained. The seizure was effected under Exh.64 together with a motorcycle of black colour. During custodial interrogation accused Akshay had expressed his willingness to point out the iron pipes which were hidden by him and accordingly, the memorandum statement of accused Akshay 8 came to be recorded in the presence of panchas at Exh.66. Pursuant thereto the accused led the Police and the panch and produced iron pipes from a site near the road. The aforesaid iron pipes came to be seized vide seizure memo at Exh.66. During custodial interrogation, accused Ganesh had expressed his willingness to point out the place where the iron rod was hidden by him. Accordingly, the memorandum statement of accused Ganesh came to be recorded in the presence of panch witnesses at Exh.106. The accused then led the Police and the panch near Savedi bridge on the Nagar-Manmad road. The accused produced the iron rod from the Western side of the road. The iron rod which is Article 8 came to be seized under seizure memo at Exh. 107. Thereafter other articles came to be seized at the behest of the accused who have been acquitted and, therefore, that part of the evidence is not adverted to. On 20.2.2006, the BPL Company produced a letter that deceased Rajat Behl was serving in their department since 9.1.2006 as a Retail Sales Manager. The aforesaid letter is at Exh.108. On 22.2.2006, the seized articles were referred to the Chemical Analyzer, Nasik through Police Constable Gaikwad. The requisition for examination of the articles by the Chemical Analyzer is at Exh.109. Statements of witnesses came to be recorded and thereafter arrangements for holding the test identification parade were made and accordingly test identification parade came to be conducted by P.W.12 9 Digambar Rashinkar, a Special Executive Magistrate. The memorandum of the test identification parade is at Exh.60. Further to the completion of the investigation, a charge-sheet came to be filed against the accused. 4. On committal of the case to Court of Sessions, trial Court vide Exh.6 framed a charge against five accused for offence punishable under Section 302 read with 149, 143, 147, 148, 504 read with 149, 506 read with 149 and under Section 120-B of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined twenty-one witnesses. Prosecution relied upon the written dying declaration of deceased Rajat as well as the oral dying declaration made to parents by deceased Rajat and the testimony of P.W.11 Sampat who was examined as an eye witness. The trial Court upon consideration of the evidence adduced by the prosecution, convicted and sentenced the appellants as afore-stated while acquitted the other accused. 5. In order to deal with the contentions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. P.W.9 Tapandas who was sharing the residential quarter with deceased Rajat states that he had come to Ahmedngar about 20 days prior 10 to the incident and was residing at Amol Residency. Tapandas was working as a Prepaid Manager in the Reliance Infocom. He states that he was knowing deceased Rajat and Rajat was sharing the residential quarter with him. He further states that on 7.2.2006 at about 7 to 8 p.m., he arrived at his residence and noticed that Rajat had already arrived. He states that it was agreed between him and Rajat to take dinner. However, accused Akshay telephoned Rajat on his mobile and invited Rajat for dinner outside. At about 10 to 10.30 p.m., Akshay arrived at their residential quarter on a motorcycle of blue colour. Akshay informed Tapandas that Akshay and Rajat would go on the motorcycle and he would invite Tapandas for dinner on some other occasion. Accordingly, Akshay and Rajat went on the motorcycle and Tapandas took dinner at the residence and retired for sleep. At about 11.30 p.m., he received a phone call from Rajat and Rajat informed him that his legs had been fractured and requested Tapandas to take him to the hospital. Tapandas accordingly solicited information as to the place where Rajat was lying. Tapandas accordingly took his motorcycle and went at the address given by Rajat. He had noticed a blue coloured motorcycle parked on the road and at that time he had received telephone call from one Mahesh Choudhary and P.W.8 Anilkumar. When Tapandas went near Rajat he noticed that both the legs of Rajat were fractured and there was bleeding from the injuries. 11 Tapandas was informed by Mahesh and P.W.8 Anil not to be frightened as one Santosh would be arriving there to assist him. Rajat informed Tapandas that Rajat should be taken to a hospital. In the meanwhile, a telephone call was received from accused Akshay on the mobile phone of Rajat and Rajat declined to accept the said call. Thereafter Santosh arrived there and Rajat was taken to the Doule Hospital, Ahmednagar in the car of Santosh. The Medical Officer administered first aid to Rajat and Rajat regained his consciousness. Rajat asked Tapandas to call Colonel Dr.Dave (P.W.14). After one hour, Rajat was shifted to the Military Hospital where he was operated upon. Thereafter a telephone call was made to the parents of Rajat. Tapandas states that he had enquired from Rajat and Rajat had stated that “Everything there was planned and do not talk with Akshay”. Tapandas states that Rajat had also informed him that 4 to 5 persons had fractured his legs by means of iron rods. Tapandas states that thereafter he had called mother of Rajat and P.W.14 Dr.Dave had also called mother of Rajat. 6. In cross-examination, he has admitted that Rajat was employed in another company. He has admitted that his timings and the place of office was different from that of Rajat. He has admitted that he was acquainted with Rajat after the arrival of Rajat at Ahmednagar. He has stated that Rajat had his own friend 12 circle while he has his separate circle of friends. He has further admitted that Rajat used to take dinner with anyone while Tapandas used to take dinner with his friends. He states that Rajat and Akshay had been for dinner along with the Salesmen. He states that he had not received any invitation for dinner from Akshay or the Salesmen of BPL Company. He states that when he had received the first phone call from Rajat, Rajat had informed him that his legs have been fractured and he should be taken to the hospital. Tapandas has admitted that Rajat had not disclosed any facts to him. He has also admitted that Rajat had not disclosed as to who had assaulted Rajat. He had admitted that within half an hour of receiving phone call of Rajat he had gone to the place where Rajat was lying. He has admitted that Rajat was lying there alone in a pool of blood and was conscious. He has admitted that he was waiting with Rajat for about 5 to 6 minutes and during that period, Rajat had not disclosed to him as to who had assaulted him. He states that one person had accompanied Santosh and the three of them had shifted Rajat to the hospital. He has also admitted that while Rajat was being taken to the hospital, Rajat had not disclosed as to who had assaulted him. Tapandas has also admitted that at the time of admission in the hospital, Rajat had not disclosed anything to Dr.Dave. He states that when they were in the process of placing Rajat in the car for taking him to the hospital, accused Akshay and Kanojiya had 13 come there on their motorcycle. He has admitted that accused Akshay and Kanojia followed them till Doule hospital. He has also admitted that Akshay and Kanojiya were waiting along with Tapandas and others when Rajat had been admitted in the hospital. He has also admitted that when Rajat was admitted in the Military Hospital, accused Akshay and Kanojiya were present along with Tapandas and Santosh. Tapandas has admitted that Rajat had not disclosed to him in Military Hospital by whom he had been assaulted. Tapandas has admitted that when he called the parents of Rajat he had informed them that 4 to 5 persons had assaulted Rajat on his legs. He has admitted that the Police had come to the Military Hospital for recording the statement of Rajat. He has admitted that he was waiting in the hospital till evening and his statement came to be recorded on 12.2.2006 at Pune. He has denied the suggestion that accused Akshay had not told him that he would invite Tapandas for dinner subsequently and that Rajat had told him not to receive the phone call of Akshay. 7. Prosecution has examined P.W.14 Dr.Prakash Dave of the Military Hospital at Ahmednagar. Dr.Dave states that on 8.2.2006, at about 1.45 a.m., he received a telephone call from Tapandas informing him that Rajat Behl s/o Colonel Ravi Behl had sustained injury to his legs and had been admitted in the Doule 14 Hospital at Ahmednagar. According to P.W.14 Dr.Dave he informed Tapandas that he was sending an Ambulence to bring Rajat to the Military Hospital and accordingly, Rajat was brought to the Military Hospital at 3.45 a.m. P.W.14 Dr.Dave thereafter informed the casualty Medical Officer Major Mrs.S.Sinha that the patient had been brought to the hospital and he would be reaching shortly and accordingly reached the hospital and examined Rajat. He states that he enquired from Rajat as to how he had sustained the injuries and Rajat informed him that he had been assaulted by some persons including accused Akshay, the BPL Distributor, by iron rod on his hands, legs and other parts of the body while Rajat was riding the motorcycle. Dr.Dave states that after examining him he called the Anesthetist. Dr.Dave further states that Rajat had informed him that while Rajat was riding on the motorcycle, he was stopped by Akshay and others and was assaulted on his both legs, right hand and other parts of the body by an iron rod. He states that initially Rajat was frightened but later on stated the above facts to him. Dr.Dave further claims that Rajat had informed him that while assaulting him accused Akshay had questioned Rajat as to why his distributorship was being cancelled. Operation came to be performed by P.W.14 Dr.Dave on Rajat and Dr.Dave talked to the father of Rajat informing him about the gravity of the injuries. Father of Rajat P.W.17 Ravi Behl informed Dr.Dave that Rajat was 15 having some trouble with his distributor and P.W.17 Ravi Behl would come to Ahmednagar to see his son. Accordingly, on 10th February parents of Rajat had arrived at Ahmednagar and thereafter Rajat was transferred to the Military Hospital Khadki, Pune. Dr.Dave states about the injuries which had been sustained by Rajat which he noticed as follows. (1) Both legs were swollen. There were puncture wounds on both legs middle third, anteo medially, approximately five in number, with ooze of blood with no significant contamination. The X-ray had shown comminuted fracture both tibia and fracture fibula on right. It was compound, comminuted fracture both tibia, right fibula. (2) Swelling and tenderness right hand, X-ray right hand fracture bone second meta carpal right undisplaced. (3) Multiple contusions over the body. Dr.Dave refers to the X-rays at Exhs.73,74,75, 76 and 77. According to him he had noted all the injuries in the clinical notes at Exh.78. He further states that when he examined Rajat on the first occasion he had found Rajat to be fully conscious, alert, oriented but in pain. He has further stated that the injuries sustained by Rajat could be caused by iron rod (Article 8) iron pipe (Article 4) and baseball bat (Article 10). 16 8. In cross-examination he has stated that the patient had voluntarily told him about the injuries. He further states that prior to the admission of Rajat in the Military Hospital, Tapandas had informed him that Rajat had sustained injuries on account of assault by some persons by iron rod on his legs. He states that Rajat had been admitted at 3.45 a.m. He states that within ten minutes of the admission of Rajat in the hospital, he had enquired from Rajat about the assault. He states that at that time Rajat was fully conscious and was able to answer his questions. He further states that Rajat had disclosed the names of Akshay who was the BPL Distributor as one of the assailants. Omission has been duly proved that he had not stated in his statement recorded during investigation that Rajat had disclosed to him that other persons and one Akshay had assaulted him. Similarly, omission has been duly proved that he had not stated in his previous statement that P.W.17 Ravi Behl, father of Rajat had informed him that Rajat was having some trouble with his BPL Distributor and that the parents of Rajat would be arriving at Ahmednagar to see their son. The medical case papers are at Exh.78 in which it is stated that Rajat was admitted in the hospital after having been allegedly assaulted by some miscreants (hit both legs and right hand and all over body with iron rod) allegedly by one Akshay 17 (BPL Distributor) and his men. The alleged disclosure by Rajat is made at 3.55 a.m. 9. Prosecution has examined P.W.15 Police Head Constable Syed Mir Syed Mehboob who had recorded the statement at Exh.83 at 1.15 p.m. In the statement of Rajat at Exh.83, which is treated as the first information report, Rajat states that on 7.2.2006 he had returned home at about 9.00 p.m. and thereafter at about 9.30 p.m., Akshay Ramesh Bhalgat, a distributor of his company had arrived on his room and had invited him for dinner in a hotel. He states that thereafter he along with Akshay had gone for dinner on the motorcycle of Akshay. They had gone to Sandeep Hotel and had dinner along with one Sumeet, Navin, Atul and Nilesh. Thereafter the other three Salesmen from the company returned to their home while he and Akshay both of them started their return journey on the motorcycle of Akshay. Akshay informed him that he was not feeling well and, therefore, alighted on the way and told Rajat to take his motorcycle to the residence of Rajat. Accordingly, at about 11.30 p.m., Rajat reached near his residence and suddenly about 3 to 4 persons came near him and asked him to stop. Rajat accordingly stopped his motorcycle and thereafter one person asked him as to why he was taking their distributorship and then two persons assaulted him on his legs and right hand by iron rods. 18 Rajat asked them as to why he was being assaulted as he had recently come there. The other two persons also assaulted him and thereafter fled away. He states that thereafter he telephoned his friend Tapan on his mobile and called him and Tapandas admitted him in the Doule hospital and subsequently came to be admitted in the Military Hospital. As pointed out by us above, the aforesaid statement came to be recorded at 1.15 in the afternoon and on the basis of the said statement at Exh.83, offence vide Crime No.38/2006 came to be registered. 10. We may at this juncture point out that Tapandas (P.W. 9) was the first person to have met Rajat after Rajat had sustained the injuries. Rajat had not disclosed to Tapandas as to his assailants were either at the place where Rajat was lying or at the Doule hospital or at the Military Hospital or on the way to the hospital. P.W.14 Dr.Dave claims that Rajat had disclosed to him the name of appellant Akshay as one of the assailants at 3.55 a.m. while in the report at Exh.83, which was recorded at 1.15 p.m., Rajat does not disclose the name of the appellant as one of the assailants and in fact, claims in the report that the assailants were unknown persons. 11. Prosecution has examined P.W.17 Ravi Behl, unfortunate father of deceased Rajat. P.W.17 Ravi Behl states 19 that he along with his wife P.W.6 Rachana reside at Kolkata and deceased Rajat was his son. Deceased Rajat was working as Area Sales Manager of BPL Company. He states that on 8.2.2006 when he was at Kolkata he had received a telephone call at 6.00 a.m. from the Military Hospital, Ahmednagar informing him that his son had been assaulted and admitted in the Military Hospital. He states that he along with his wife came to Ahmednagar on 10.2.2006 and directly went to the Military Hospital and met Rajat. He states that he enquired from Rajat and Rajat told him that Akshay and his 4 to 5 associates had assaulted him by iron rod, kicks and fists blows.