Bombay High Court
Kannadasan @ Mgr S/O Godandaraman ... vs The State Of Maharashtra on 9 April, 1996
Equivalent citations: 1996(3)BOMCR747
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. Vide judgment and order dated 17-12-1993 passed in Sessions Case No. 954 of 1988, the Additional Sessions Judge, Greater Bombay, convicted and sentenced the appellants in the manner stated hereinafter :
(i) Under section 302 read with 34 I.P.C. to suffer rigorous imprisonment for life; and
(ii) Under section 307 I.P.C. read with 34 I.P.C. to suffer rigorous imprisonment for seven years.
The substantive sentences were directed to run concurrently.
Hence, this appeal.
2. The prosecution case in brief runs as follows:-
On 3rd April, 1988 at about 11.30 a.m. while the deceased Vardrajan Nadar was playing a game by the name of Challa-8 in front of his house in Pragati Nagar hutment, Matunga, Bombay, along with Krishna, Dawood and Babu Anthony, the three appellants along with two absconding accused, Chota Ganesh @ Topiwala and Balan, came there. Topiwala called out to the deceased saying "Ah Vardrajan". On that the deceased got up and went near the appellant Kannadasan @ MGR s/o Godandaraman Vanniar (hereinafter referred to as "MGR"). He asked MGR as to what was the matter. On that Topiwala caught hold of the hands of the deceased from behind. Then MGR took out a knife and assaulted the deceased on his stomach, chest, both arms and right thigh. Appellant Bada Ganesh with a knife, Topiwala and Balan with sickles are also alleged to have assaulted the deceased. At that time, appellant Essaki Pandi Muttu Tevar was instigating "Mar dalo Sale Ko". While being assaulted the deceased was crying for help. It is said that the appellants and the absconding accused persons were threatening members of the public that in case they came forward, they would be killed. This assault on the deceased was seen by his son Anand Naidu, P.W. 7, Sayed Hussain Abdul Latif P.W. 8, Babu Anthony Fernandes P.W. 9 and Dawood Yusuf Shaikh P.W. 15.
As soon as the assault on the deceased was over Anand Naidu P.W. 7 ran from the place of the incident and came to the house of his maternal uncle Babu Nagappa Pujari P.W. 1. At that time, the latter was in his house. He narrated the incident to him, his mother and his maternal aunt Narsama Babu Pujari, who were also present there. On receiving the information, the mother of Anand Naidu ran away with him. However, Babu Pujari and his wife Narsamma left for the place of the incident. When they reached near the railway track, they found that MGR and his associates were coming. Near the mosque, MGR and his associates Chota Ganesh, Bada Ganesh, Balan and Essaki accosted and assaulted Babu Pujari; Bada Ganesh with a knife, Chota Ganesh and Balan with sickles. At that time, appellant Essaki is said to be carrying a bag in his hand which was meant for keeping all the arms which were in the hands of the accused persons. He and MGR were saying that "Isake Bahan ke Mard Ko Khatam Kar Dala, Isko Bhi Khatam Kar Dalo". After assaulting Babu Pujari, the appellants and the absconding accused are said to have run away.
After the incident, Vardarajan Nadar and Babu Pujari, who were profusely bleeding, were taken on two separate taxies, to Sion Hospital. Vardarajan Nadar was accompanied by his brother-in-law Rajendra Ganpati Harijan P.W. 6 to whom he mentioned on the way that MGR, Bada Ganesh, Essaki, Chota Ganesh and Balan had assaulted him while he was playing the game of Challa-8. Vardarajan was admitted in the casualty ward of Sion Hospital. There he made a dying declaration to constable Ashok Rakhmaji Jadhav P.W. 17 to the effect that MGR and his three associates assaulted him. Constable Jadhav duly recorded it in the EPR (Emergncy Police Register). Exhibit 43 is the entry in the EPR which was proved in trial by constable Jadhav.
3. The injuries of Vardarajan Nadar were medically examined at Sion Hospital by Dr. Ram Mohan Krishna Chaddha, P.W. 16, Dr. Chaddha found that he had sustained eight incised wounds.
After medical examination, Vardarajan Nadar was removed to emergency operation theatre for surgical operation and exploration of the abdomen.
Babu Pujari was medically examined at the same hospital by Dr. Pavitra Purshottam Borkar P.W. 19. He found four incised wounds and one contused lacerated wound on the person of Babu Pujari. In his opinion, the incised wounds were caused by a sharp edged instrument like knife, chopper, etc. He also opined that the incised wound which was situated above the left elbow arm and the contused lacerated wound which was located on the right forearm, near the wrist, were potentially dangerous injuries and if treatment would not have been given the victim would have succumbed to them.
Babu Pujari, P.W. 1 was also operated upon by Dr. Jagdish Laljiram Jain P.W. 20, as a case of fracture of humerus lower third left side with infected wound on outer aspect of the right arm with radial nerve paralysis.
4. The F.I.R. in the instant case was recorded by Motilal Sidhram Jadhav P.W. 22, D.O. (Crime) attached to Dharavi Police Station, at Sion Hospital, on the dictation of Dawood Yusuf Shaikh P.W. 15 the same day. On its basis a case under section 302/307/r/w 34 I.P.C., was registered against the appellants and the two absconding accused at Dharavi Police Station the same day, at 2.10 p.m.
5. The investigation was conducted by PSI Bhau Prahlad Tavare, P.W. 21, S.I. Jadhav P.W. 22, S.I. Prassana Yogiraj More P.W. 23 and P.I. Mukhtar Ashan Ansari P.W. 24, in the usual manner. During the course of it, PSI Tavare took the blood stained clothes of the deceased in his possession. During investigation on 7-4-1988, at the pointing out of the appellants. Bada Ganesh and Essaki, knives, which were not blood-stained, were recovered.
On 28-4-1988, a blood-stained knife is alleged to have been recovered at the instance of appellant MGR. These recoveries of knives were effected from the appellants in the presence of public panchas, under a panchanama. After completion of the investigation, the appellants were charge-sheeted.
6. Going backwards, the deceased succumbed to his injuries at Sion Hospital, the same day.
The autopsy on the dead body of the deceased was performed by Dr. Ketan Shah, under the supervision of Dr. (Mrs.) Geeta Mahesh Mehta P.W. 18, on 3-4-1988 between 5.15 p.m. to 8.15 p.m. It was found that the deceased had in all suffered 21 injuries, the bulk of them being incised wounds. The injuries also included some sutured wounds and abrasions. The autopsy report shows that extensive internal damage had been caused to liver, intestines, diaphragm etc. Since Dr. Ketan Shah was not available, the post mortem report was proved by Dr. (Mrs.) Geeta Mehta. She stated that the injuries of the deceased were attributable to knife, sickle, chopper etc. and were sufficient in the ordinary course of nature to cause his death.
7. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants were charged for offences punishable under sections 302 r/w 34 I.P.C., 307 r/w 34 I.P.C., and under section 37(1) r/w 135 of the Bombay Police Act.
In the trial Court, apart from tendering voluminous documentary evidence, prosecution examined as many as 24 witnesses. Out of them, six namely Babu Pujari, Narsamma Babu Pujari, Anand Naidu, Sayed Husssain Abdul Latif, Babu A. Fernandes and Dawood Yusuf Shaikh P.Ws. 1, 3, 7, 8, 9 and 15 were examined as eye witnesses. The remaining witnesses included the doctors, the investigating officers and the public panchas in respect of the recoveries.
In defence, no witness was examined by the appellants.
The learned trial Judge, believed the evidence adduced by the prosecution in respect of offences under sections 302 r/w 34 I.P.C. and 307 r/w 34 I.P.C. He convicted and sentenced the appellants on the said counts. He however acquitted them under section 37(1) r/w section 135 of the Bombay Police Act.
8. We have heard Ms. Razia Sultana Sayyad for the appellants and Mr. M.I.P. Galeira for the respondent, at considerable length . We may mention that Ms. Sayyad only filed her Vakalatnama for appellants Ganesh Bhagwati Harijan and Essaki Pandi Muttu Tevar. Vakalatnama on behalf of appellant Kannadasam @ M.G.R. son of Godandaraman Vanniar has been filed by Mr. A.A. Shaikh. Since, he was not present in the Court, either yesterday or today, and the appellants are in jail, we requested Ms. Razia Sultana Sayyad, to cover the case of the said appellant also. She acceded to our request and also argued the case of the appellant M.G.R. For this gesture of hers, we are grateful to her.
We have also gone through the depositions of the prosecution witnesses, the material exhibits and the impugned judgment.
After giving our anxious consideration to the matter, we are of the view that there is no substance in the appeal preferred by the appellants M.G.R. and Ganesh Bhagwati @ Bada Ganesh. Hence, their appeal deserves to be dismissed. We however, feel that the prosecution has not been able to establish its case beyond reasonable doubt against appellant Essaki Pandi Muttu Tevar and he deserves benefit of doubt.
9. The main question in this appeal is whether the evidence of the six eye witnesses adduced by the prosecution namely Babu Pujari, Narsamma Pujari, Anand Naidu, Syed Hussain, Babu Anthony Fernandes and Dawood Yusuf Shaikh P.Ws. 1, 3, 7, 8, 9 and 15 respectively inspires confidence? Our answer is in the affirmative vis-a-vis appellants 1 and 2, for the reasons mentioned below.
10. We first propose examining the statements of Anand Naidu, Syed Hussain, Babu A. Fernandes and Dawood Yusuf Shaikh because they gave ocular account with respect to the first part of the incident in which the murder of the deceased Vardarajan Nadar was committed. On the basis of the averments contained in the examination-in-chief of their depositions in the trial Court, we have set out the prosecution story in paragraph two. No useful purpose would be served by graphically reiterating the same. Broadly speaking, these eye witnesses have stated that when on 3-4-1988, at about 11-30 a.m. the deceased Vardarajan was playing a game Challa-8 with Krishna, Dawood and Babu Anthony, the three appellants along with the absconding accused Chota Ganesh and Balan came. Chota Ganesh caught hold of the hands of the deceased from behind, appellants M.G.R. and Bada Ganesh assaulted the deceased with knife, and Balan and Chota Ganesh assaulted him with sickles. They also stated that appellant Essaki Tevar was instigating that the deceased be killed. The manner of assault as deposed to by these witnesses, is corroborated by the large number of incised wounds found on the dead body of the deceased. As mentioned earlier, Dr. (Mrs.) Geeta Mehta P.W. 18 in whose presence the post mortem examination was performed deposed that the aforesaid injuries of the deceased could be caused by knife and sickle.
Thus, the medical evidence corroborates the participation of appellants Kannadasan @ M.G.R. and Ganesh Bhagwati Harijan so far as the assault on the deceased is concerned.
11. We would now like to take up the ocular account in respect of the assault launched by the appellants and the absconding accused Balan and Chota Ganesh on Babu Poojari. For that we have the evidence of Babu Poojari and his wife Narsamma Poojari P.Ws. 1 and 3 respectively. They deposed that on the date of the incident at about 11.30 a.m. the son of the deceased P.W. 7 Anand Naidu, came and informed them about the assault on his father by appellant M.G.R. and his associates. On that information, they proceeded for the place of the incident. When they had reached the mosque, on Ambedkar Road, they found the appellants and the absconding accused coming. Appellant Bada Ganesh with a knife, Chota Ganesh and Balan with sickles assaulted Babu Poojari. At that time, Essaki Pandi Muttu Tevar was carrying a bag in his hand which was meant for keeping all the arms which were in the hands of the accused persons. He and M.G.R. were saying that "Iske Bahen Ke Mard Ko Khatam Kar Dala, Isko Bhi Khatam Kar Dalo". The aforesaid manner of assault on Babu Poojari is also corroborated by the medical evidence. Dr.Pavitra Purshottam Borkar P.W. 19 found four incised wounds and one contused lacerated wound on the person of Babu Poojari. He opined that these injuries could be caused by weapons like knife, chopper etc.
12. Assurance is also lent to the ocular account by a large number of other circumstances. Firstly, the prosecution alleges that there was a very strong motive for the appellants and the absconding accused to have participated in the incident. The motive for the incident has been deposed to by Babu Poojari P.W. 1, the brother-in-law of the deceased. He stated that sometimes before the incident, one Murgesh, who was the brother of appellant Ganesh Bhagwati Harijan alias Bada Ganesh and absconding accused Chota Ganesh assaulted his son Naresh and when Naresh informed him about this, he and his brother-in-law, the deceased Vardarajan, questioned Murgesh as to why he had assaulted Naresh. This was not liked by Bada Ganesh, Chota Ganesh and the other accused persons, who are said to be ruffians. The evidence of P.W. 1 Babu Poojari is that when he and the deceased had gone to protest at Murgesh's place, a quarrel between them and Murgesh and his associates had taken place. In that quarrel M.G.R. was also involved. As a sequel to the quarrel, a criminal case was registered against M.G.R. and after being released on bail, M.G.R. had demanded Rs. 3,000/- from him as the expenses which he had incurred in getting himself released on bail. At that time, the deceased was by his side. He however, did not pay the amount inspite of the fact that four to five times later M.G.R. and others repeated the demand. This is alleged to have infuriated M.G.R. and his associates. We find no infirmity in the evidence of Babu Poojari P.W. 1. In our view, the prosecution has established that there was a strong motive for the appellants M.G.R. and Bada Ganesh to have committed the crime. However, we feel that the aforesaid motive is not applicable to appellant Essaki Pandi Muttu Tevar.
13. Assurance is also forthcoming to the ocular account by the oral dying declaration, made by the deceased to his brother-in-law Rajendra Ganpati Harijan P.W. 6 while he was being taken by him on a taxi to the Sion Hospital. The deceased is alleged to have told him on the way to Sion Hospital that M.G.R. Bada Ganesh, Essaki, Chota Ganesh, and Balan assaulted him when he was playing Challa-8 game. We have been taken through the evidence of Rajendra Harijan and we find the same to be implicitly reliable. It is true that he is the brother-in-law of the deceased but, on that score his evidence cannot be mechanically rejected. The law only requires that prior to accepting it, it should be scrutinised with caution. After subjecting it to the closest scrutiny, we find that the evidence of Rajendra Ganpati Harijan P.W. 6 inspires implicit confidence. We have not the least doubt that the prosecution has proved that the deceased made an oral dying declaration to this witness.
14. Assurance is further lent to the eyewitness account by the dying declaration of the deceased recorded by Constable Ashok Rakhamaji Jadhav P.W. 17, on 3rd April, 1988 in the Casualty Ward of the Sion Hospital wherein the deceased had been admitted after being assaulted. This witness deposed that the deceased stated to him that M.G.R. and his three associates assaulted him. This dying declaration has been reduced to in writing by him in the E.P.R. The relevant E.P.R. entry was No. 2404. Xerox copy of the aforesaid entry was proved in the trial Court as Exhibit 43. In our opinion this dying declaration also inspires confidence. It certainly incriminates M.G.R. The learned Counsel for the appellants failed to point out any infirmity in it. There was no reason for this witness to have falsely made an entry about it in the E.P.R. After all he has no animus against M.G.R. We accordingly place reliance on it.
15-A. Finally the ocular account is rendered credible by the circumstance that the F.I.R. of the incident was lodged within 2 hours and 40 minutes of the incident taking place. The incident is alleged to have been taken place on 3-4-1988 at 11.30 a.m. and the F.I.R. was registered the same day at 2.10 p.m. by S.I. Jadhav P.W. 22, on the dictation of Dawood Yusuf Shaikh P.W. 15.
15-B. It is a trite that a prompt F.I.R. lends tremendous assurance to the prosecution case for on account of promptness, the possibility of embellishments and improvements in the prosecution case, are minimised. It may be mentioned that in the F.I.R. the three appellants and the absconding accused Chota Ganesh and Balan are named.
16. For the aforesaid reasons, in our view, there cannot be any shadow of doubt that the prosecution has proved its case against the appellants M.G.R. and Ganesh Bhagwati beyond reasonable doubt. We feel that the learned trial Judge rightly convicted them under sections 302 read with 34 I.P.C. and 307 read with 34 I.P.C. In a concerted manner, armed with knives, along with the absconding accused Balan and Chota Ganesh, who were armed with sickles, they assaulted the deceased Vardarajan and the injured Babu Poojari. The medical evidence, as mentioned in paragraphs 6 and 3, is to the effect that the injuries of the deceased were sufficient in the ordinary course of nature to cause his death and those of Babu Poojari were potentially dangerous and if treatment would not have been given to him he would have succumbed to them.
17. We do not find any merit in the submission of Ms. Sayyad that appellant Ganesh Bhagwati @ Bada Ganesh cannot be held liable for the murder of the deceased with the aid of section 34 I.P.C. She contended that the circumstance that he assaulted the deceased with knife on his thigh and not on any vital part of his body demonstrates that he did not share the common intention with respect to the murder of the deceased. She urged that he would only be liable under section 324 I.P.C. for causing simple hurt to the deceased.
The crucial thing to be borne in mind in deciding the question whether section 34 can be invoked in a given case or not is whether the criminal act committed by several persons, was committed by them, in the furtherance of their common intention. If the answer to that question is in the affirmative it is immaterial as to who caused which injury. In the instant case there is evidence to indicate that the murder of the deceased was committed in furtherance of common intention of accused Ganesh Bhagwati alias Bada Ganesh, M.G.R., Balan and Chota Ganesh. The evidence of the eye-witnesses is that all of them together assaulted the deceased with their respective weapons; M.G.R. and Bada Ganesh with knives, Balan and Chota Ganesh with sickles. The evidence further is that as a consequence of the assault the deceased sustained injuries to which he succumbed the same day, at Sion Hospital. The medical evidence corroborates the fact that the deceased was assaulted by knives and sickles. It also shows that his injuries were sufficient in the ordinary course of nature to cause death. All this, coupled with the fact that appellant Bada Ganesh came together on the place of the incident with the aforesaid co-accused persons and left together with them after assaulting the deceased, conclusively establishes that he shared the common intention with respect to the murder of the deceased and that he has been rightly convicted under section 302 read with 34 I.P.C.
18. The sole question which remains is as to whether would it be prudent to sustain the convictions and sentences of appellant Essaki Pandi Muttu Tevar.
As mentioned in paragraph 2 the only role assigned to this appellant is that of instigation; both vis-a-vis the assault on the deceased as well as that on Babu Poojari P.W. 1 . A time-honoured principle which courts of law follow is that the evidence of instigation is by its very nature a weak type of evidence and should only be accepted if it is cogent and consistent. Experience of courts is that often by attributing the role of instigation names of persons are falsely inserted. It also does not appeal to reason that in a planned murder of the present type why there was any necessity for instigation. In this connection it would be appropriate to refer to the observations contained in paragraph 7 of the judgment of the Apex Court , Dhanabal and another v. The State of Tamil Nadu. In the aforesaid paragraph Their Lordship of the Apex Court observed thus :
"We feel that when the three brothers went to the scene determined to do away with Rasayal, any instigation was most unlikely. The first accused who actually caused injury is the eldest brother. It is difficult for us to accept that before he actually caused the injury he needed the instigation of the second appellant."
In the case before us, we also find it most unlikely that when the appellants and absconding accused had gone with the avowed object to commit the murder of the deceased any instigation was required.
We further find that the evidence in respect of instigation is far from satisfactory. Three of the eye witnesses namely Babu Anthony Fernandes P.W. 9, Dawood Yusuf Shaikh P.W. 15 and Babu Poojari P.W. 1 have not deposed about it in their statements recorded under section 161 Cr.P.C. When they were confronted with the aforesaid omission in the trial Court they failed to give a satisfactory answer. We are not impressed by their stock answer that they deposed about it to the police but the same was not incorporated in their statements.
As stated earlier, the evidence of instigation is essentially a weak type of evidence and on probabilities the story of instigation does not appeal to reason. In such a situation, when we find that three of the eye-witnesses have not deposed about it in their statements under section 161 Cr.P.C. which were recorded very promptly, grave and serious doubt starts creeping in our mind about the genuineness of the prosecution story pertaining to the instigation given by appellant Essaki Tevar. In such a situation, we feel that it would be only legitimate and proper to accord this appellant the benefit of doubt because, apart from the evidence of instigation, there is nothing conclusive to show that he shared the common intention with respect to the murder of the deceased.
19. Mr. M.I.P. Galeria, the learned A.P.P. vehemently contended that even if the prosecution story of instigation by Essaki is rejected, he would still be liable for the murder of the deceased and attempt to commit the murder of Babu Poojari P.W. 1 because, he was present at the place of the incident; having come on it along with other co-accused persons and only leaving it, along with them after the two victims had been assaulted. Section 34 of the I.P.C. reads thus :
"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
It is well settled that mere presence on the place of the incident would not ipso facto attract the application of section 34 I.P.C. There should be evidence of a conclusive nature to show that the criminal act committed by several persons was committed by them in furtherance of their common intention. Unless that evidence is there the inference of common intention should never be raised. Otherwise it would result in gross miscarriage of justice.
In the instant case, apart from the evidence of instigation which we have rejected, there is no other evidence of a conclusive nature to indicate that the murder of the deceased and the attempt to commit murder of Babu Poojari P.W. 1 was in furtherance of the common intention of the appellant Essaki Tevar. The Judicial Committee of the Privy Council in the decision , Mahboob Shah v. Emperor, has sounded a note of caution as regards application of section 34 I.P.C. It reads thus :---
"The inference of common intention should never be reached, unless it is a necessary inference deducible from the circumstances of the case."
The aforesaid observations of the Privy Council were approved and relied upon by the Apex Court in para 34 of its decision , Pandurang and others v. State of Hyderabad.
In the context as to when section 34 can be invoked, in the same paragraph, Their Lordships have quoted with approval the following passage from Sarkar's Evidence, 8th Edition :---
"..... The incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis."
Bearing in mind this yardstick of certainty before section 34 I.P.C. can be invoked in a given case, it would be hazardous, in our view, to simply infer its application from the circumstance that this appellant came along with other accused persons before the incident took place and left along with them after it was over.
It is well-settled that in the absence of any overt act or credible evidence in respect of instigation to commit the offence, section 34 I.P.C. would have no application. We are fortified in our view by the decision of the Apex Court reported in 1986 Cr.L.J. page 1242, Gupteshwar Nath Ojha and another v. State of Bihar, wherein in paragraph 10, Their Lordships observed thus :---
"In absence of any overt act or even a shout or an oral statement, he could not be convicted even with the aid of section 34."
For the aforesaid reasons, the contention of Mr. Galeria fails.
20. Pursuant to the above discussion, this appeal is partly allowed and partly dismissed.
The appeal of Kannadasa @ MGR s/o. Godandaraman Vaniar and Ganesh Bhagwati Harijan @ Bada Ganesh is dismissed. Their convictions and sentences under sections 302 read with 34 I.P.C. and 307 read with 34 I.P.C. are confirmed. They are in jail and shall serve out their sentences. The appeal preferred by Essaki Pandi Muttu Tevar is allowed. His conviction and sentence under sections 302 read with 34 I.P.C. and 307 read with 34 I.P.C. is set aside. He is given benefit of doubt on both these counts. He is in jail and shall be released forthwith unless wanted in some other case.
Before parting with this judgment, we would be failing in our duty if we do not record the enormous assistance rendered to us by the counsel for the parties in the decision of this case.