APEAL/169 & 251/2009 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.169 OF 2009 ALONG WITH CRIMINAL APPLICATION NO.543 OF 2011 Dattatray Sakharam Khade R/o. 1187/33, Shilpa Chambers, Shivaji Nagar, Pune ... Appellant Versus State of Maharashtra ... Respondent AND CRIMINAL APPEAL NO.251 OF 2009 1. Satish Pandharinath Dhole, R/o. 838, Kasba Peth, Pune 2. Sunil Mohan Fasge, R/o. 449, Sadashiv Peth, Pune ... Appellants Versus State of Maharashtra ... Respondent Mr. V.T. Tulpule i/b. Mr. Harshad Bhadbhade with Mr. Rakesh Bhatakar and Mr. Sachin Chandan for the Appellants. Mr. H.J. Dedhia, APP, for the Respondent­State of Maharashtra. CORAM : B. H. MARLAPALLE & A.M. THIPSAY, J.J. DATE : 5 TH & 6 TH MAY, 2011. ORAL JUDGMENT {PER B.H. MARLAPALLE, J.} : 1. Both these Appeals filed under Section 374(2) of Cr.P.C. arise from the order of conviction and sentence passed on 30th January, 2009 in Sessions Case No.171 of 2004 by the learned Additional Sessions Judge at Pune. In the said case APEAL/169 & 251/2009 2 Dixit in all four accused were convicted for the offences punishable under Sections 302 and 323 r/w. Section 34 of the IPC. However, during the pendency of the trial, i.e. on 5th September, 2004, accused No.4­Dattatray alias Appa Nivrutti Dudhane died and the trial against him stood abated and the trial continued against accused Nos.1 to 3. All the three accused have been found guilty for the offence punishable under Section 302 r/w. Section 34 of IPC and they have been acquitted for the offence punishable under Section 323 r/w. Section 34 of the IPC. All of them have been sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/­ each, in default of payment of fine to undergo further R.I. for six months. Criminal Appeal No.169 of 2009 has been filed by the accused No.1, whereas Criminal Appeal No.251 of 2009 has been filed by accused Nos.2 and 3. All of them are presently undergoing sentence and their plea for bail was rejected by this Court. 2. As per the prosecution case, one Bajirao Bhorde, who was a Police Constable and brother of Shankar Bhorde, died on 11th February, 2004 and he was a friend of the complainant party­Jakir Gafur Shaikh and deceased Rajesh Vasantsing Pardeshi. The complainant­Jakir Gafur Shaikh and the deceased Rajesh Pardeshi along with other four friends attended the funeral of one Bajirao Bhorde at Vaikunth Crematory and while they were on their way to the house of Shankar Bhorde, brother of the deceased Bajirao Bhorde, in the Police Colony (Shivaji Nagar) on two wheelers, accused No.2­Satish Dhole called the deceased Rajesh Pardeshi, who was the pillion rider along with the complainant on his motorcycle, and, therefore, the deceased Rajesh Pardeshi stopped near Vasant Hair Cutting Saloon around Goodluck Chowk at Pune, at about 4:30 p.m. Accused No.2­Satish Dhole questioned the deceased Rajesh Pardeshi as to whether the deceased had become over­smart and was trying to show his authority and in that, there was some altercation between accused No.2 and his friends i.e. accused Nos.1, 3 and APEAL/169 & 251/2009 3 Dixit 4, on one hand and the deceased on the other. During this altercation, accused Nos.1 to 3 dragged the deceased towards the steps of Vasant Hair Cutting Saloon and, thereafter, accused No.4­Dattatray Dudhane, who was not known to the complainant, took out a jambia from his leather cover and inflicted two blows on the deceased. The first blow cut the thumb of right hand of the deceased and the second blow landed on his chest and he collapsed. The accused ran away from the scene of the incident while Rajesh Pardeshi was lying in the pool of blood. It took some time for the complainant and his friends to get a rickshaw and take the injured to the nearby Deendayal Hospital, where Rajesh Pardeshi was declared dead around 5:00 p.m. The shocking incident that had taken place was during the broad day­light in a busy locality like Ferguson College Road. News reached to the nearest Police Station, i.e. Deccan Police Station, and, thereafter, Raju Dhondiram More (PW­6) visited the spot. Raju More (PW­6) got a message at about 4:40 p.m. and reached the spot at about 4:45 p.m. He was informed that the injured was taken to Deendayal Hospital, he saw blood lying on the ota in front of Vasant Hair Cutting Saloon and he reached the Deendayal Hospital. There, he came to know from the Doctor that Rajesh Pardeshi was no more. Raju More (PW­6) recorded the statement of the complainant­Jakir Gafur Shaikh and with a covering letter sent the same to the Deccan Police Station where C.R. No.58 of 2004 was registered at about 5:45 p.m. 3. The dead body of Rajesh Pardeshi was sent for post mortem to the Sassoon Hospital at Pune and Dr. Prashant Damodar Suryavanshi (PW­5) conducted the post mortem between 9:30 p.m. to 10:30 p.m. on the date of the incident. The dead body was then handed over to the relatives and the clothes of the deceased were recovered under Panchnama Exhibit­98. Ranjit Pandurangrao Abhinkar (PW­7), being the in­charge of the Deccan Police Station, took over the investigation and visited the spot as well as Deendayal Hospital. Under his APEAL/169 & 251/2009 4 Dixit directions and on receiving the information about the whereabouts of the accused, Nanasaheb Bhikaji Hole (PW­8) took the accused in custody from Wasewadi in the suburbs of Pune and brought them to the Police Station, where they came to be arrested under the arrest panchnama at Exhibit­99. The clothes on their person were recovered. While in custody, accused No.4­Dattatray Dudhane made a disclosure statement, which was recorded at Exhibit­72, and the weapon 'Gupti' came to be recovered from the house of his cousin at Vasewadi on 13th February, 2004. Ranjit Abhinkar (PW­7) recorded the statement of some witnesses like Vishwajit Vasantrao Ghule (PW­3) and other companions of the deceased Rajesh Pardeshi at the spot of the incident. He forwarded the seized articles like the clothes of the deceased as well as the accused and the weapon for chemical analysis. On completion of investigation, the charge sheet came to be filed on 29th April, 2004 and on committal of the case, the charge came to be framed by the learned Additional Sessions Judge, Pune on 9th June, 2004. 4. The prosecution, in support of its case, examined in all eight witnesses and claimed that Mr. Jakir Gafur Shaikh (PW­1) and Mr. Vishwajeet Vasantrao Ghule (PW­3) were the eye witnesses. Sachin Sitaram Aher (PW­2) and Raju Ramchandra Pawar (PW­4) were the panch witnesses. Dr. Prashant Damodar Suryavanshi (PW­5) was the Medical Officer and Raju Dhondiram More (PW­6), Ranjit Pandurangrao Abhinkar (PW­7) and Nanasaheb Bhikaji Hote (PW­8) were the Police Officers, as referred to here­in­above. In their statements recorded under Section 313 of the Cr.P.C., the accused denied their involvement in the incident and claimed that deceased Raju Pardeshi was the brother of Bharat Pardeshi, who is a big gangstar, and at his instance the witnesses had deposed against them. Each of the accused also filed written statement of defence at Exhibits 148 to 150, respectively. Accused No.1­Dattatray Sakharam Khade, though belatedly, filed an application at Exhibit­152 so as to bring on record the APEAL/169 & 251/2009 5 Dixit medical certificate dated 22nd January, 2009 issued by Hardikar Hospital at Pune and on the basis of the said certificate, it was claimed that he had sustained injury in an accident at Bawdhan Ghat on 7th December, 2003 and, therefore, developed pain and swelling over his left shoulder. As per the certificate, the x­ray of left shoulder showed fracture of lateral / 3rd clavicle and he was treated with fig of '8' bandage, clavicle brace and shoulder bag to left UL and analgesics. By relying upon the certificate, it was claimed by accused No.1­Dattatray Khade that on the date of the incident, he was not able to lift his left hand and, therefore, he could not have thrown chairs or stones – as per the role attributed to him by the prosecution – or participated in the scuffle or altercations that had allegedly preceded the knife blows on the deceased. 5. The trial Court, on appreciation of the prosecution evidence, held that Rajesh Pardeshi died a homicidal death and accused Nos.1 to 3, with their common interest shared with the deceased accused No.4, had killed Rajesh Pardeshi, intentionally and knowingly. The trial Court accepted Mr. Jakir Gafur Shaikh (PW­1) and Mr. Vishwajeet Vasantrao Ghule (PW­3) as the natural eye witnesses. They withstood the test of extensive cross­examination and their presence at the spot along with the deceased Rajesh Pardeshi was beyond any doubt and, therefore, their testimony did not require any further corroboration. The plea sought to be of free fight between the two groups, as was set out in the written statement of defence filed by the accused, was rejected by the trial Court and it was further held that the deceased accused No.4­Dattatray Dudhane could not be under an apprehension of threat to his life and, therefore, that in his private defence, he gave blows of knife to the deceased Rajesh Pardeshi, could not be proved. The trial Court further held that the evidence on record clearly proved the prosecution case that accused Nos.1 to 3 had dragged Rajesh Pardeshi, had held him and then the deceased accused No.4­Dattatray Dudhane stabbed Rajesh APEAL/169 & 251/2009 6 Dixit Pardeshi with jambia. It turned down the plea of the defence that there was no case made out of sharing of common intention so as to cause murder of Rajesh Pardeshi by accused Nos.1 to 3 with the deceased accused No.4, while admitting that the meeting of the deceased Rajesh Pardeshi and accused was purely by chance and there was no reason for the accused to have knowledge that the deceased Rajesh Pardeshi and his companions would be passing through the Good Luck Chowk area (Ferguson College Road) at the relevant time. With the help of Section 34 of IPC of sharing common intention with the deceased accused No.4, the trial Court set out the following reasoning :­ “The evidence on record categorically goes to prove that during the incident, these three accused have dragged deceased Rajesh on the steps of Vasant Hair Cutting Saloon, where deceased accused No.4­Dattatray Dudhane was standing and they held deceased Rajesh when deceased accused Dattatray Dudhane inflicted the fatal blow of knife on his chest. Thus, they have facilitated the act of deceased accused Dattatray Dudhane inflicting blow on the chest of Rajesh. If they had not held Rajesh, then definitely Rajesh would have been in a position to avert the said blow, at­least on the vital part of his body, which has resulted into his death. Even if it is accepted that deceased accused Dattatray Dudhane was not brandishing jambia, it was expected that when these accused saw deceased accused Dattatray Dudhane taking out jambia from the leather cover and inflicting the blow, that too on the vital part of the body, they became aware of his intention of causing the death APEAL/169 & 251/2009 7 Dixit of Rajesh, at that moment also they could have loosen their grip on Rajesh, but they have not done so. They even did not allow these two witnesses and other companions of Rajesh to intervene or to help him to escape from the clutches. Moreover, it was not their only act of dragging and holding Rajesh, but they had also participated in that incident by pelting chairs, bricks, beating and assaulting Rajesh and his companions, shout exert with ‘mara, mara’ and even lifting cooler and throwing it in the direction of Jitendra Jadhav. This conduct of these accused of taking full participation in the entire incident culminating into their act of dragging Rajesh and holding him, thereby facilitating and enabling deceased accused Dattatray Dudhane in inflicting fatal blow on Rajesh clearly implies the sharing of common intention. The prior conduct of these accused also is one of the determining factor. It was accused No. 2­Satish Dhole who gave a call to Rajesh and provoked him by saying whether he has become smarter or big person and then immediately indulging into the act of hot exchange of words and beating. It is pertinent to note that, as per the admitted facts on record, Rajesh and his companions were knowing only these three accused Nos.1 to 3 fairly well, whereas they were not knowing deceased accused Dattatray Dudhane. Hence, if at all there was any enmity or grudge, which is found reflected in the provocation given by accused No.2­Satish Dhole to Rajesh, it was between deceased Rajesh and APEAL/169 & 251/2009 8 Dixit these three accused. Hence, though overt act appears to be committed by deceased accused Dattatray Dudhane, it has to be inferred that it was committed at the instance of these accused at­least by sharing common intention with them. It is pertinent to note that, in the complaint the name of deceased accused Dattatray Dudhane is also not given and his only description is given. Therefore, things are very clear on this score that Rajesh and his companions were not knowing deceased accused Dattatray Dudhane. If even then he has given the fatal blow, then one cannot escape from concluding that there was common intention on the part of the present accused. Even the subsequent conduct of these accused of running away from the spot in the direction of Good Luck Square along with deceased accused Dattatray Dudhane is sufficient to reflect that they had acted in unison in furtherance of their common intention. The evidence of API Hole and Dy.S.P. Abhinkar goes to show that all these accused were arrested together at Wasewadi in the house of maternal aunt of deceased accused Dattatray Dudhane. Therefore, what more is required to prove that these accused also shared the same intention with which the fatal blow was given by deceased accused Dattatray Dudhane. Even if assuming that it was a chance meeting between the parties, needless to say that the common intention can be developed during the course of incident APEAL/169 & 251/2009 9 Dixit in spur of moment also. It does not require a long interval in the incident and prior meeting of mind. When deceased accused Dattatray Dudhane has taken out the jambia, then it cannot be accepted that the present accused were not anticipating the blow by such jambia. They have also not made any efforts to prevent that blow.” 6. Dr. Prashant Suryavanshi (PW­5) was the Medical Officer in Forensic Department with the Sassoon General Hospital on 11th February, 2004 and he had received the dead body of Rajesh Pardeshi (aged about 32 years), which was brought by a Police Constable by name Dorkar under the Yadi at Exhibit­104. On the examination of the dead body during the course of the post mortem, he noticed the following three surface wounds : (i). Oval shaped stab injury to the right side of chest, just lateral to sternum. Oblique­vertical. Upper end was 8 cm. Below right sternochavicular joint and 7 cm medial to right nipple; angulating downwards entering in right throatic cavity deep. Angles and margins were clean cut, Length : 6.5 cm and width was 2.5 cm. (ii). Contused lacerated wound over the dorsum of preximal phalanx of thumb of left had 5 cm. Long, bone deep. (iii). Small horizontal abrasion over medial part of left forehead 3 cm. Long. On the internal examination, the doctor noticed that there was no scalp injury. Thorax cavity had a clean cut fracture of 2nd and 3rd ribs of right side, corresponding to injury No.1 in column No.17 of the post mortem report (Exhibit­105). Right pleural cavity contained 1000 C.C. of blood with blood clots. The helum of right lung showed haemotoma, laceration and cut injury. The APEAL/169 & 251/2009 10 Dixit fracture showed reddish in filteration at cut ends. Left lung was pale. Abdominal wall pericardium was intact. No free fluid in peritoneum cavity was found. Stomach contained 500 C.C. semi digested food. No abnormal smell. The Medical Officer opined that the cause of death was “hamerrogic shock due to stab injuries”. He further clarified that the injuries sustained by the deceased were possible with a sharp and pointed object with force and if the assault was made on a person in the standing position. He further clarified that injury No.2 was a defence injury and injury No.1 was sufficient to cause death in the ordinary course of nature. Injury No.1 was possible due to assault by the weapon shown to him in the Court i.e. Gupti (Article No.20). In his cross­examination he stated that if the injured had tried to avoid the injury No.1, then injury No.2 was possible. He could not say whether both the injuries were possible by one and the same blow. The nature of injury would depend upon the angle from which the assault is made and the force used by the assailant. He also stated that injury No.1 was possible if the victim was in a lying position and injury No.3 can be possible during a scuffle. At the same time injury Nos.2 and 3 were individually as well as cumulatively of simple in nature, but he could not give the age of injury Nos.2 and 3. He further stated that the margins of the injury were clean­cut indicating that both edges of the weapons were sharp, but when article No.20 was shown to him, he admitted that one side of the said weapon was blunt and the width of the blade of the knife was more than 2.5 c.m. He volunteered to state before the trial Court that the length of the wound corresponds to the width of the weapon and the length of the wound examined by him was of a cavity deep and, therefore, it could not be measured. He denied the suggestion that due to the fracture to the rib, an injury was caused to the lung and that the injury sustained by the patient was not possible due to the assault by the weapon Article No.20. APEAL/169 & 251/2009 11 Dixit In our opinion, the medical evidence on record, as is placed through Dr. Prashant Suryavanshi (PW­5) and the PM Notes at Exhibit­112 unerringly proved that Rajesh Pardeshi died a homicidal death on 11th February, 2004. It is also not much in dispute that he was assaulted around 4:30 p.m. on 11th February, 2004 opposite Vasant Hair Cutting Saloon on Furgusan College Road and near the Good Luck Square at Pune. 7. The defence had conceded before the trial Court to the following circumstances : (i). the homicidal death of Rajesh Pardeshi caused on account of the injuries sustained in the incident. (ii). Place of offence. (iii). Occurrence of the incident in question. (iv). The presence of all the four accused. (v). The presence of deceased Rajesh Pardeshi and the two eye witnesses i.e. Mr. Jakir Gafur Shaikh (PW­1) and Mr. Vishwajeet Vasantrao Ghule (PW­3) examined by prosecution. What was disputed by the defence was ; (i). The manner in which the incident had occurred; (ii). the overt acts attributed to accused Nos.1 to 3; (iii). the applicability of Section 34 of the IPC against them. 8. During the course of arguments before us, it was submitted by Mr. Tulpule, the learned Counsel for the appellants­accused, that there was no evidence placed before the trial Court to support the prosecution case that accused Nos.1 to 3 APEAL/169 & 251/2009 12 Dixit shared common intention along with the deceased accused No.4, who had, in fact, inflicted blows by jambia on the person of the deceased and more so when the prosecution could not prove that there was any meeting of minds between all the four accused either before they reached the spot of the incident or during the incident. It was further submitted that the mere circumstance of a scuffle between the deceased and accused Nos.1 to 3 would not be sufficient to hold that either any of the accused instigated deceased accused No.4 to take out the jambia and kill Rajesh Pardeshi. The circumstances, as they came out through the evidence of PW­1 and PW­3, cannot be believed to accept the prosecution case that any of the accused or all of them had held the deceased and, thereafter, deceased accused No.4, at the instigation or instance of any of the accused, inflicted the blows by jambia. It was necessary for the prosecution to rule out that deceased accused No. 4 on his own inflicted the blows by jambia. In this regard Mr. Tulpule referred to the evidence of PW­1 and PW­3, (both eye witnesses), that there was no enmity, at­least to the knowledge of these witnesses, between the deceased Rajesh Pardeshi and the deceased accused No.4­Dattatray Dudhane and he was not, in fact, known to the witnesses by name. There is no material on record to show that deceased accused No.4 was an associate of accused Nos.1 and 3 or that he was hired by any one of them. It was also pointed out that there was no history of any enmity or any scuffle or any provocation between accused Nos.1 to 3 on one hand and the deceased Rajesh Pardeshi on the other, prior to the incident. The incident happened, even as per the prosecution case, by chance and, therefore, there was no case made out of sharing common intention by accused Nos.1 to 3 or any one of them individually with deceased accused No.4 and the mere circumstance, even if it is accepted, that they were picked up from the same place on 12th February, 2004 by Nanasaheb Hole (PW­8) could not be sufficient to hold that they had premeditated the crime and executed the plan decided earlier. It was also submitted that the evidence placed before the trial Court was not safe to APEAL/169 & 251/2009 13 Dixit attribute any overt act to any of the appellants­accused either individually or collectively. It was accused No.2 who allegedly gave a call to the deceased Rajesh Pardeshi and when the deceased Rajesh stopped in front of Vasant Hair Cutting Saloon, it was allegedly accused No.2 who assaulted the deceased Rajesh and other two accused, i.e. accused Nos.1 and 3, have not been attributed with any act supporting the case that they were also part of the scuffle between accused No.2 and the deceased Rajesh. It was more particularly pointed out that the deceased Rajesh Pardeshi was a well known wrestler (Sena Kesari Award Winner) and he was well built and accompanied by five of his friends, i.e. Jakir Gafur Shaikh (PW­1), Vishwajeet Vasantrao Ghule (PW­3), Ashish Abodkar, Jitendra Jadhav and Sanjay Mane and, therefore, it was doubtful whether the accused party could be more aggressive. 9. Let us therefore consider the prosecution case and the evidence, as was placed before the trial Court, through the eye witnesses. So far as the C.A. Reports are concerned (at Exhibits 123 to 127), they indicate that the blood group of the deceased Rajesh Pardeshi was “O”, the blood group of accused Nos.2 and 3 is “O”, the blood group of accused No.1 could not be determined and the weapon­ Article No.20 was found to be stained with blood of group “O”. The recovery of clothes made from the accused on their arrest by Ranjit Abhinkar (PW­7) and the subsequent chemical analyser’s report indicated that though they were stained with the human blood, the blood group could not be determined. 10. Jakir Gafur Shaikh (PW­1) is the resident of 59, Shivaji Nagar, Pune and engaged in the business of private transport. The deceased Rajesh Pardeshi was his friend. He stated that the deceased was a wrestler and a Sena Kesari awardee. On the date of the incident, i.e. on 11th February, 2004, after attending the funeral of Bajirao Bhorde, this witness along with the deceased Rajesh Pardeshi and four