Bombay High Court
Dilip Vishnupant Pande And 3 Others vs Babubhai Kannubhai Desai And 4 Others on 2 February, 2018
Author: M.G.Giratkar
Bench: M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.87 OF 2003
with
CRIMINAL REVISION APPLICATION NO.59 OF 2003
1)CRIMINAL APPEAL NO.87 OF 2003 :
1. Dilip s/o. Vishnupant Pande,
Aged about 44 years,
2. Ravindra @ Ravi Vishnupant
Pande, Aged about 43 years,
3. Govind s/o. Vishnupant Pande,
Aged about 39 years,
4. Rajendra @ Raju Vishnupant
Pande, Aged about 35 years,
All Appellants r/o. Toshniwal
Layout, Akola, Tq. And Distt.
Akola. .......... APPELLANTS
// VERSUS //
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State of Maharashtra,
Through its Police Station Officer,
Civil Lines Police Station,
Akola, Tq. and District Akola. .......... RESPONDENT
____________________________________________________________
None for the appellant.
Mr.V.P.Maldhure, A.P.P. for Respondent/State.
____________________________________________________________
********
2. CRIMINAL REVISION APPLICATION NO.59 OF 2003 :
1. Dilip s/o. Vishnupant Pande,
Aged about 45 years,
Occ. Business.
2. Rajendra Vishnupant Pande,
Aged about 36 years, Occ.
Business.
3. Ravindra Vishnupant Pande,
Aged about 34 years, Occ.
Business.
4. Govinda Vishnupant Pande,
Aged about 32 years, Occ.
Business,
All Appellants r/o.Radhakrushna
Nagar, Akola, District Akola. .......... APPELLANTS
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// VERSUS //
1. Babubhai Kannubhai Desai,
Aged about 53 years,
2. Sidhanath Babubhai Desai,
Aged about 21 years,
3. Sau.Satyabhama Babubhai
Desai, Aged about 43 years,
4. Pankaj @ Gotya Babubhai Desai,
Aged about 23 years,
All r/o. Toshniwal Layout,
Akola, District Akola.
5. State of Maharashtra,
Through P.S., Civil Lines,
Akola. .......... RESPONDENTS
____________________________________________________________
None for the appellant.
Mrs.Jayshri Alkari, Advocate h/f. Mr.S.V.Sohoni, Advocate for
Respondent Nos. 1 to 4.
Mr.V.P.Maldhure, A.P.P. for Respondent/State.
____________________________________________________________
*******
Date of reserving the Judgment : 20.1.2018.
Date of pronouncing the Judgment : 2.2.2018.
*******
CORAM : M.G.GIRATKAR, J.
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JUDGMENT :
1. In Criminal Appeal No.87 of 2003, appellant nos. 1 to 4 have challenged the Judgment of conviction in Sessions Trial No.7 of 1999, dated 9th January, 2003 for the offence punishable under Section 324 r/w. 34 of the Indian Penal Code sentencing them to suffer rigorous imprisonment for three months and to pay a fine of Rs.1000/- each in default to suffer rigorous imprisonment for one month each. Appellant/accused no.3 Govind and no.4 Rajendra are convicted of the offence punishable under Section 325 r/w. 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,000/- each and in default to suffer rigorous for two months each.
2. Criminal Revision Application No. 59 of 2003 is filed by the applicants challenging the Judgment of acquittal of their rival group Babubhai Kannubhai Desai and Others in Sessions Trial No.210 of 2000, decided on 9.1.2003.
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3. The facts in the Criminal Appeal and the Criminal Revision Application are same and therefore, they are decided by this common Judgment.
4. There was an open space by the side of the house of Babubhai Desai and Dilip Pande and Others. There was a dispute on account of open plot. Both the parties were claiming the same plot. There was civil dispute between them There was dispute before the Charity Commissioner.
5. On 18th March, 1998, servant of Dilip Pande burnt waste material near barbed wire compound of temple. Babubhai prevented his servant and on that count, there was exchange of words between him and the servant of Pande family.
6. On 19.3.1998, at about 9.30 p.m., Babubhai was returning from marriage. He came up to the house of accused Pande. He was obstructed by accused no.1 Dilip, accused no.2 Ravindra, accused no.3 Govind and accused no.4 Rajendra. Dilip was having iron pipe in his hand. They started beating Babubhai. Accused no.1 Dilip gave blow of pipe on his head. Others accused beat him by ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 6 apeal87.03.odt stick, fist and kick blows. Babubhai sustained injury. He started running towards his house. Accused persons chased him.
7. When Babubhai entered in his house, all the accused persons entered in the house. When his wife Satyabhama tried to save Babubhai, she was also beaten by the accused persons. His son Siddhanath tried to intervene. He was also beaten. Elder son of Babubhai was present. He told him to go for lodging report.
8. When Raju was going to lodge report, accused persons chased and beat him mercilessly. During the quarrel, police reached to the spot of incident. All the injured were taken to the hospital. During the quarrel, the appellant also sustained injuries.
9. Both parties lodged report against each other. During treatment, Raju died in the hospital. Therefore, the offences punishable under Sections 302, 147m 148, 324 r/w. 149, 452 of the Indian Penal Code were registered against the appellants. After complete investigation, the charge sheet was filed. On the report of appellants, Babubhai and others were prosecuted for the offences ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 7 apeal87.03.odt punishable under Sections 143, 147, 324 r/w. 149 of the Indian Penal Code.
10. In both Sessions Trials, charge was framed and explained to the accused. In both the cases, prosecution examined material witnesses.
11. Learned trial Court came to the conclusion that there was no any eye witness of the incident in respect of beating to deceased Raju. Learned trial Court relied on the dying declaration recorded by the Investigating Officer Nivrutti Rambhau Dambelkar (PW-7). Relying on the dying declaration recorded by Nivrutti (PW-
7) vide Exh.76, the trial Court came to the conclusion that deceased Raju died due to beating of appellant nos. 3 and 4. Learned trial Court came to the conclusion that the injuries were not sufficient to cause death and therefore, recorded its finding that they have committed offence punishable under Section 325 of the Indian Penal Code and on the basis of dying declaration, convicted the appellant nos.3 and 4 for the offence punishable under Section 325 of the Indian Penal Code.
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12. In respect of the offence punishable under Section 325 of the Indian Penal Code for the injury caused to deceased Raju, there is no ocular evidence to show that appellant nos. 3 and 4 beat deceased Raju when he was going to lodge report against them. From the perusal of Judgment, it is clear that the learned trial Court has not relied on the oral dying declaration stated by Babubhai Kannubhai Desai (PW-1) and his wife Satyabhama w/o. Babubhai Desai (PW-2).
13. From the perusal of evidence of Babubhai (PW-1) and Satyabhama (PW-2), it is clear that they were also injured in the incident and admitted in the Government hospital. Raju was also admitted in the same hospital. Babubhai (PW-1) and Satyabhama (PW-2) have stated in their examination-in-chief that, on the next day, they were shifted in the ward of deceased Raju. They inquired with deceased Raju. Then he told that appellant nos. 3 and 4 and their servant beat him by iron rod etc. Therefore, he sustained injury. But, in their cross-examination, both the witnesses have stated that condition of Raju was very serious. Nobody was allowed to talk with him. Raju was not in a position to talk and therefore, ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 9 apeal87.03.odt their evidence in respect of oral dying declaration is rightly discarded by the trial Court.
14. Learned trial Court has relied on the written dying declaration (Exh.76) recorded by Investigating Officer Nivrutti (PW-
7). As per his evidence, on the next day of incident i.e. on 20.3.1998, he went to the hospital and recorded the dying declaration of deceased Raju. Deceased Raju stated before him about the injuries caused by appellant nos. 3 and 4 and their servant. It is pertinent to note that the Medical Officer was present in the hospital, but Certificate of Medical Officer was not obtained by this witness. On 20.3.1998, condition of deceased was very serious as per admission of Babubhai and his wife Satyabhama. As per their admission, nobody was allowed to talk with deceased Raju. Therefore, Exh.76 recorded by Nivrutti (PW-7) is not reliable. Though he has stated that the deceased was conscious and was in a position to state before him, yet Babubhai and his wife have admitted in their cross- examination that on 20.3.1998 i.e. on the next day, when they were shifted in the ward of Raju, nobody was allowed to talk with Raju because his condition was serious.
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15. It was necessary for the Investigating Officer Nivrutti to obtain the Certificate about fitness of patient/deceased to give dying declaration. From the perusal of Exh.76, it is clear that it is like a statement u/s.161 of the Code of Criminal Procedure. It is in detail. Learned trial Court observed that, as per the evidence of Dr.Abhay Patil (PW-5), deceased was conscious till 7 p.m. on 20.3.1998. From the perusal of Exh.76, it is clear that it was recorded on 20.3.1998. Time is not mentioned on Exh.76. Whether it was recorded before 7 p.m. or after 7 p.m. is not clear. Investigating Officer Nivrutti (PW-
7) has also not stated in his evidence about the time when he recorded Exh.76 of the deceased.
16. While relying on the dying declaration, the Court has to be very cautious. The proposition is laid down by Hon'ble Apex Court in the catena of decisions. Now it is a well settled principle of law that conviction can be awarded only on the basis of dying declaration provided that it inspires confidence of the accused. In the present case, dying declaration (Exh.76) was recorded by the Investigating Officer Nivrutti on 20.3.1998. Medical Officers were also available. But the Investigating Officer has not obtained any Certificate of fitness from the Medical Officer before recording the dying ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 11 apeal87.03.odt declaration of deceased vide Exh.76. Exh.76 was recorded by Investigating Officer Nivrutti (PW-7) on 20.3.1998. When it was recorded is not made clear. Time of recording is also not written on Exh.76. There is no signature of deceased on Exh.76. Dr. Abhay Patil (PW-5) has stated that deceased Raju was conscious upto 7 p.m. of 20.3.1998. This itself shows that after 7 p.m. deceased Raju was not conscious. It suggests that condition of Raju was serious. As per evidence of Babubhai (PW-1) and wife Satyabhama (PW-2) in their cross-examination, clearly shows that deceased Raju was serious and nobody was allowed to talk with him.
17. From the admission of Babhubhai (PW-1) and Satyabhama (PW-2), it is clear that deceased was serious on 20.3.1998. He was not allowed to talk with anybody. Nodoby was allowed to talk with the deceased. As per the evidence of Dr.Patil, deceased was conscious upto 7 p.m. Exh.76 was recorded on 20 th March, 1998. It is not made clear whether it was recorded before 7 p.m. or after 7 p.m. The evidence of Babubhai, Satyabhama and Dr.Patil shows that deceased Raju was serious. Evidence of Dr.Patil suggests that after 7 p.m. deceased Raju was not conscious. In such circumstances, Exh.76 is not reliable. Learned trial Court has not ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 12 apeal87.03.odt scrutinized the evidence properly and wrongly came to the conclusion that appellant nos. 3 and 4 beat deceased Raju. Hence, conviction of appellant nos. 3 and 4 is liable to be set aside for the offence punishable under Section 325 of the Indian Penal Code.
18. In respect of offence punishable under Section 324 r/w Section 34 of the Indian Penal Code against all the appellants, it is clear from the evidence of Babubhai, Satyabhama and other witnesses that they were beaten by appellants by iron pipe etc. Their injuries are proved by Medical Officer. Offence punishable under Section 324 r/w. Section 34 of the Indian Penal Code is proved against the appellants.
19. Appellants are contesting their case from the year 1998. They are young persons. Nothing is brought on record to show their any criminal antecedent. Therefore, they are entitled for benefit of the Probation of Offenders Act.
20. The Criminal Revision filed by the applicants (appellants in Appeal No.87 of 2003) against respondents Babubhai and others is liable to be dismissed. Learned trial Court rightly came to the ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 13 apeal87.03.odt conclusion that the applicants sustained minor injuries during the quarrel. Appellant Dilip Pande and Others themselves voluntarily caused hurt to Babubhai, his wife and deceased Raju. During the quarrel, they sustained injuries. Therefore, Babubhai and others are rightly acquitted by the trial Court. Hence, Criminal Revision Application No.59 of 2003 is liable to be dismissed. With these findings, I proceed to pass the following order.
// ORDER // Criminal Revision Application No.59 of 2003 is hereby dismissed.
Criminal Appeal No.87 of 2003 is partly allowed.
Impugned Judgment is hereby quashed and set aside.
Appellant No.3 Govind s/o. Vishnupant Pande and appellant no.4 Rajendra @ Raju Vishnupant Pande in Criminal Appeal No.87 of 2003 are acquitted of the offence punishable under Section 325 r/w. 34 of the Indian Penal Code.
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14 apeal87.03.odt Conviction of appellant nos. 1 to 4 in Criminal Appeal No.87 of 2003 for the offence punishable under Section 324 r/w. 34 of the Indian Penal Code is hereby maintained. Instead of sending them to jail, they are released on bond of good behaviour of Rs.5,000/- for a period of one year as per the provisions of Probation of Offenders Act.
Their bail bonds shall stand cancelled.
Fine amount deposited by the appellants be paid to the injured Babubhai and Satyabhama towards compensation.
The record and proceedings be sent back to the trial Court.
JUDGE [jaiswal] ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 ::: 15 apeal87.03.odt ::: Uploaded on - 02/02/2018 ::: Downloaded on - 21/05/2018 03:05:58 :::