cri.appeal 1243-2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1243 OF 2008
1) Shri Pandurang Shankarrao Padwal, ) Age 33 Yrs, Occ.Business, )
R/At 87, Narayan Peth, Near Kabir Baug,)
Pune - 30 )
2) Vivek @ Yogesh Shankarrao Padwal, ) Age 37 Yrs, Occ.Service, )
R/At As Above )
3) Dnyaneshwar @ Nilesh Shankarrao ) Padwal, Age 32 Yrs, Occ.Service, )
R/At As above ) ...Appellants (Orig.Accused)
vs.
1) The State of Maharashtra ) 2) Yashwant Kashinath Damale, ) Age - 74 Yrs, Occ- Not known. )
Residing at Flat No.401, Parshuram )
Apartment, 212 Narayan Peth, Pune ) ...Respondents Mr.Rajesh Bindra for the Appellant.
Mr.H.J. Dedhia, APP for the State.
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CORAM : A.S. OKA &
SHRIHARI P. DAVARE, JJ.
RESERVED ON : AUGUST 1, 2012
PRONOUNCED ON : AUGUST 17, 2012
JUDGMENT (PER DAVARE, J.) :-
Heard the learned Counsel for the respective parties.
2. The challenge in this appeal is to the judgment and order dated 4th October, 2008 rendered by the learned Additional Sessions Judge, Pune, in Sessions Case No.437/2007 thereby convicting the appellant nos.1 to 3 (original accused nos.1 to 3) (hereinafter referred to as per their original status as "accused nos.1 to 3") for the offence punishable under Section 302 read with 34 of IPC and sentencing each of them to suffer imprisonment for life and to pay fine of Rs. 5000/-, in default, to suffer simple imprisonment for six months and also convicting them for the offence punishable under Section 352 read with 34 of IPC and sentencing each of them to suffer imprisonment of three months and pay fine of Rs.500/-, in default, to suffer simple imprisonment for seven days and sat 2/37
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directing that parents of deceased Mayur Damle be paid compensation under Section 357 of Cr.P.C. after depositing the fine amount of Rs.15,000/-, after the period of appeal is over.
3. Brief facts of the prosecution case which gave rise to the present appeal are as follows :-
a) The first informant PW 3 Tirathsingh Riyat filed the report with Vishrambag police station, Pune, on 12th April, 2007 which is marked as Exhibit 17 contending that deceased Mayur Damle was his friend since their childhood. He was residing at Parshuram Apartment in Narayan Peth, Pune, which was abutting to the mansion where he was residing. They used to consume liquor together whenever time permitted them at night on the terrace of Parshuram Apartment. The case of the prosecution is that on 11th April, 2007 at about 8 p.m., Mayur rang up to PW 3 Tirathsingh and informed that he had brought liquor and asked the time when he should come. The first sat 3/37
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informant came home at about 9 p.m. and they went to Sitaphalbaug where they drank liquor brought by Mayur at about 9.30 p.m. However, the said liquor was fall short. Hence, Mayur proposed that he would go and bring the liquor and asked the first informant i.e. PW 3 Tirathsingh to prepare something to eat. Accordingly, the first informant made tiffin ready and Mayur also brought more liquor and both of them went to the terrace of the Parshuram Apartment and made an arrangement of eating and liquor on the terrace. However, the first informant Tirathsingh stated that he was hungry and he had no desire to drink liquor and therefore, asked Mayur to proceed to consume liquor and he started dinner. Accordingly, Mayur started consuming liquor. Thereafter, they finished their dinner and were gossiping with each other till 0.35 a.m. b) At this juncture, the first informant PW 3 Tirathsingh went to the corner of the terrace to answer the call of nature and at that time, two persons arrived on the terrace sat 4/37
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and asked Mayur who threw the liquor bottles on their mansion and one of them gave fist blow to Mayur whereas the other person kicked him. PW 3 Tirathsingh, the first informant tried to intervene but the third person armed with baton arrived there and asked him to tell honestly as to who threw the bottles down. The first informant identified the person armed with baton as accused no.1 residing in Padwal Mansion who gave blow of baton on the head of Mayur. The other two persons i.e. accused no.2 Vivek and accused no.3 Dnyaneshwar also punched to Mayur and started pulling him towards the end of the terrace. The first informant PW 3 Tirathsingh started intervening but he was manhandled. Accordingly, the accused took Mayur to the corner of the terrace and assaulted him and all three accused pushed deceased Mayur down from the terrace. Thereafter, accused no.1 Pandurang said "run, run" and therefore, all the said three accused came down hurriedly from the staircase and ran away.
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c) It is further the case of prosecution that PW 3, the first informant, went to the residence of Mayur and informed about the incident to his brother i.e. PW 4 Vijay and they went down of the building and found that Mayur fell on the tile of the floor and blood was oozing from his head. PW 5 PI Mulay was attached to Shanivar Peth police chowky under the Vishrambag police station at the relevant time and he was taking night round on 12th April, 2007 and received a phone call from his Head Constable at about 12 a.m. informing that one person was thrown from the terrace of Parshuram Apartment, 112 Narayan Peth, Pune, and asked him to go to the spot. Accordingly, PW 5 PI Mulay and his staff went to the said spot and found that one person was lying on the ground in a pool of blood. They found one sikh person/Sardarji alongwith another person and the said Sikh/Sardarji i.e. PW 3 complainant was taken into custody. PW 5 PI Mulay also informed the said incident to superior officer by wireless and shifted the said injured person to Sassoon Hospital through sat 6/37
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ambulance. He also inquired with Sardarji about the incident who narrated the occurrence of the incident and also showed the house of the accused and accused nos.1 to 3 were found therein and therefore, they were taken into custody. Thereafter, PW 5 PI Mulay went to the police station alongwith three accused and Sardarji. PW 5 PI Mulay recorded the statement of said Sardarji i.e. PW 3 Tirathsingh which was treated as a complaint and offence was registered against the accused nos.1 to 3. PW 5 PI Mulay also arrested the accused nos.1 to 3 under the arrest panchnama (Exhibit 20) and sent them for medical examination. He also drew the panchnama of the scene of offence at about 1.45 a.m. to 3.45 a.m. on 12th April, 2007 and the place of offence was shown by PW 3 Tirathsingh, the said first informant. They found about 13 articles at the place of incident i.e. terrace of Parshuram Apartment and the same were seized and kept in Muddemal Store room under Panchnama (Exhibit 13). Moreover, the photographs of the terrace and the deceased were taken which are produced at sat 7/37
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Exhibits 24 to 27, respectively.
d) According to the prosecution, Mr.Pawar who took victim Mayur to Sassoon Hospital, Pune, informed PI Mulay that Mayur died. Hence, inquest panchnama of his dead body was prepared at Exhibit 15 and the said dead body was sent for post mortem. The autopsy of the dead body was conducted in Sassoon Hospital and the Medical Officer who conducted autopsy issued the Doctor Certificate at Exhibit 34 and post mortem notes are marked as Exhibit 35. Moreover, PW 6 PSI Narote took over the further investigation of the said CR and he sent the seized articles to Chemical Analyser's office for examination purpose alongwith forwarding letters (Exhibits 29 and 30). Accordingly, CA reports were received from Forensic Science Laboratory and same were marked as Exhibits 31 to 33, respectively. After completion of investigation, Mr.Jagdale filed the chargesheet against the accused before the learned JMFC, Pune. However, since the offence was exclusively sat 8/37
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triable by the Court of Sessions, the learned JMFC, Pune, committed the said case to the court of Sessions, Pune.
4. Accordingly, the learned Additional Sessions Judge framed the charge against the accused nos.1 to 3 on 10 th June, 2008 for the offence punishable under Section 352 read with 34 of IPC and also under Section 302 read with 34 of IPC and Section 504 read with 34 of IPC. However, the accused nos.1 to 3 pleaded not guilty to the said charges and claimed to be innocent. To substantiate the charges levelled against the accused, the prosecution has examined as many as six witnesses as mentioned below :- PW 1 Anil Vasan Pimpalkhare, panch to the spot panchnama,
PW 2 Prafulla Ramchandra Kulkarni, panch to the inquest panchnama,
PW 3 Tirathsingh Mastansingh Riyat, complainant and eye witness,
PW 4 Vijay Yashwant Damale i.e. victim Mayur's brother,
PW 5 Shamlar Basavappa Mulay, Investigating Officer- 1,
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PW 6 Anant Nivrutti Narote, Investigating Officer-2.
5. The defence of the accused nos.1 to 3 is of total denial and they stated that on the date of the incident, when accused no.1. Pandurang was smoking at about 0.45 a.m. near Parshuram Apartment, he saw the informant coming from the staircase of the Parshuram Apartment hurriedly, and when he asked him what made the sound, thereupon the informant went back to the building. It is the defence of the accused that they have been falsely implicated in the present case. However, the accused neither examined themselves on oath nor examined any defence witness in support of their defence.
6. The learned Counsel for the appellants canvassed that the prosecution case is rested upon the testimony of sole eye witness i.e. PW 3 Tiratsingh but his evidence suffers from omissions and contradictions and there is variance in the testimony of PW 3 Tiratsingh on one part and evidence of PW 5 PI Mulay on the other part and also there are variances in the testimonies of PW 3 Tirathsingh on one part and deposition of PW 4 sat 10/37
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Vijay Damle i.e. victim's brother on the other part. According to him, there are discrepancies in the testimonies of prosecution witnesses and significantly, the FIR was lodged after the delay of four hours from the time of the occurrence of the incident and the panchanma of the scene of offence was drawn before recording the FIR. The panchnama of the scene of offence was drawn between 1.45 a.m. to 3.45 a.m. Offence had occurred at about 0.30 a.m. on 12th April, 2012 and the FIR was lodged at 4.30 a.m.. and therefore, there is anomaly in the prosecution case. Moreover, he also submitted that statements of residents of the building and neighbours of Parshuram Apartment have not been recorded by the Investigating Officers which amount to lacuna in the prosecution case. He further submitted that glasses were not seen in the photographs and Investigating Agency has not seized the pillows which were seen in the photographs. He further submitted that the prosecution has not examined the Medical Officer who performed the post mortem on the dead body of the victim Mayur and the co-relation between external injuries and internal injuries sustained by the deceased has not been established and the cause of death of the deceased has not been proved by the prosecution by sat 11/37
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examining the concerned Medical Officer. According to him, there is no co-relation between the seized articles and the CA reports thereof and hence, the said corroborative piece of evidence cannot be construed as incriminating against the appellants-accused. Hence, he submitted that defence put forth by the accused through the cross-examination of the witnesses that the victim Mayur consumed liquor excessively and was on the terrace of Parshuram Apartment in drunken condition and lost his balance and slipped from the terrace and succumbed to the injuries is a probable defence and the same is required to be accepted. Accordingly, the learned Counsel for the accused urged that the present appeal be allowed and convictions and sentences rendered against the appellants- accused be quashed and set aside and they be acquitted for the offences with which they were charged.
7. Per contra, the learned APP countered the said arguments and opposed the present appeal vehemently and submitted that there was no enmity between the accused and PW 3 complainant Tirathsingh and hence, there is no question of false implication of accused nos.1 to 3 in the sat 12/37
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present case by the complainant. He also submitted that the PW 3 Tirathsingh i.e. the complainant is the eye witness to the occurrence of the incident and he narrated the incident with minute details and there are no materials/vital omissions/contradictions in his testimony which go to the root of the matter hampering the case of the prosecution. He further submitted that his testimony is natural testimony and he has no reason to implicate the accused in the present case falsely. Moreover, he further submitted that deposition of PW 3, the eye witness viz. Tirathsingh has not been shaken in the cross-examination and hence, the same deserves to be accepted which connects the accused with the crime. He further submitted that the other circumstantial evidence such as spot panchnama and inquest panchnama and the articles seized thereunder which were sent to CA office for examination purpose and the CA report which is the corroborative piece of evidence are also incriminating pieces of evidence against the accused. He further submitted that the medical evidence i.e. post mortem notes (Exhibits 31 to 33) and inquest panchnama establish that the victim Mayur met with the homicidal death and the ocular evidence adduced/produced by the prosecution and more particularly, sat 13/37
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testimony of PW 3 eye witness Tirathsingh crowns the authorship of the said homicidal death of victim Mayur. Insofar as defence of the accused is concerned, he submitted that the defence put forth by the accused is improbable and same is not acceptable. Accordingly, the learned APP submitted that the learned trial court has scrutinised and analysed the evidence in proper perspective and thereafter convicted and sentenced the accused nos.1 to 3 and there is no error therein and therefore, no interference therein, is called for in the present appeal and urged that the present appeal be dismissed.
8. We have perused the oral, documentary and medical evidence and also the evidence of Forensic Science Laboratory and also perused the impugned judgment and order dated 4 th October, 2008 carefully and heard the submissions advanced by both the learned Counsel for the parties anxiously.
9. In order to advert to the submissions advanced by the learned Counsel for the parties, it is necessary to deal with the material evidence sat 14/37
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adduced/produced by the prosecution and in the said context, coming to the testimony of PW 3 Tirathsingh Riyat i.e. the complainant who deposed that deceased Mayur @ Mahesh was his friend since childhood and distance between their residences was about five minutes by walk and deceased was working as salesman in Quality Walls Icecream whereas PW 3 Tirathsingh was working as security guard in ICICI ATM centre, Pulgate East Street at the relevant time. They used to consume liquor whenever PW 3 did not have night shift. Accordingly on 11 th April, 2007, they decided to consume the liquor in the night time and deceased Mayur brought illicit liquor in the plastic bag and they went to Sitaphalbaug and consumed liquor there. However, deceased Mayur wanted to consume more liquor and therefore, he proceeded to purchase more liquor whereas PW 3 Tirathsingh returned home and arranged for eatables and thereafter, at about 11.30 p.m., they sat on the terrace of Parshuram Apartment after laying mat thereon and after making arrangements of glasses and eatables etc. Thereafter, they consumed liquor and had their dinner and it was about 00.30 a.m. At this juncture, PW 3 Tirathsingh went to answer the call of nature at the corner of the terrace and when he came back, he found that sat 15/37
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accused no.3 Dnyaneshwar Padwal and one person with him arrived there and asked Mayur as to who threw the empty bottles on their mansion and one of them gave fist blow and another kicked him. Before PW 3 could reach to intervene, the third person arrived there with a log of wood and asked to tell honestly as to who threw the bottles. PW 3 Tirathsingh identified him and he was Umesh @ Pandurang Padwal i.e. accused no.1 and PW 3 was knowing him since he sells weight-grams. According to him, accused no.2 Vivek @ Yogesh and accused no.3 Dynaneshwar @ Nilesh were the first two persons who had been to the deceased. He stated that when the deceased Mayur was standing, the accused no.1 gave blow of wooden log on his head whereas accused no.3 Dnyaneshwar caught hold of collar of shirt of Mayur and accused nos.2 and 3 assaulted him and dragged him to the corner of the terrace and when PW 3 Tirathsingh went to rescue him, he was manhandled by them and they pushed down Maryur from the terrace. Thereupon, accused no.1 Pandurang said "run, run" and accordingly, all the three accused ran away.
10. PW 3 also stated that thereafter he came down on the fifth sat 16/37
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floor where the flat of deceased was situated and pressed the doorbell and disclosed the said incident to his mother and brother i.e. PW 4 Vijay and took Vijay with him to show the place where Mayur fell on the tile floor in front of shops and garages. Accordingly, Vijay (PW 4) informed the police who arrived at the spot and also made inquiry with PW 3 Tirathsingh and took him with them to the terrace and PW 3 Tirathsingh showed them the place and also showed the house of the accused to the police personnel and pointed out towards accused no.1. The police made inquiry with him about the other two accused and they were also brought there. Mayur was taken to hospital by ambulance and accused and PW 3 Tirathsingh were taken to Faraskhana police chowky and they made inquiry with him as to how the incident occurred and recorded his statement which was signed by him and same was treated as FIR (Exhibit 17). He also identified the accused nos.1 to 3 in the court stating that they killed the deceased, and also he identified the wooden log hit by accused no.1 on the head of the deceased as article
7.
11. In cross-examination, he stated that he was knowing all the sat 17/37
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three accused since he was resident of the same locality. He also gave the topography of the area around the Parshuram Apartment. He stated that deceased Mayur was his friend since childhood but he was married and his financial condition was sound. Mayur had also friendship with accused no.2 viz. Vivek and their relations were cordial and he used to drive auto rickshaw earlier and he had brought rickshaw from accused no.2. He also stated that since last 10 years, Mayur used to drink liquor and both of them used to take liquor whenever PW 3 did not have night shift. He also further stated that Mayur's addiction of liquor was known to his family members. He further stated that either himself or Mayur never threw bottles of the liquor on the mansion of the accused. According to him, while coming to terrace, Mayur changed clothes and wore baniyan and one bermuda pant. He also stated that he drank half glass of liquor. He further stated that there was stack of sand on the terrace where he urinated and due to stack of sand, he did not see how the first two persons came on terrace as well as he did not see how third person came from the staircase and saw him while coming to terrace. No talks in loud tone took place between Mayur and all the three accused on the terrace and there was no sat 18/37
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exchange of abuses. The entire incident occurred within five minutes. He attempted to rescue Mayur when he was being assaulted but he did not shout by saying "save, save". He did not retaliate the assailants. Mayur was shouting when he was being assaulted. He stated that he did not get hurt in the incident. After the fall of Mayur, he did not talk with the accused and all the three accused went down, but he was on terrace. He apprehended that he also would be beaten and would be thrown by the accused. When the accused were running away from the terrace, he did not make shout. He also did not feel to chase and catch hold of them. He also stated that Mayur fell on the backside of the building i.e. towards eastern side. He also felt to go to the floor to see as to what happened to Mayur. After half of an hour from the fall of Mayur, police came on the spot. The residents of the locality gathered around Mayur. The police personnel made inquiry as to how the incident happened. The report of PW 3 was taken in Faraskhana police station. He stated that he was made to seat in the police station on suspicion and even he was beaten with the belt by the police on his hands.
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12. According to him, police personnel recorded his FIR and he has not specifically mentioned the name of accused no.3 Dnyaneshwar in the context of the two persons who arrived when he went to him after passing urine. Omission in the FIR was brought out in respect of two persons asking Mayur as to who threw empty bottles on their mansion amounting to an improvement in that respect in the testimony. Omission in the FIR was also brought on record in respect of sequence of arrival of the accused on the terrace i.e. who came first amounting to improvement in the testimony. Moreover, omission has been brought on record in respect of the disclosure of the incident in the FIR by PW 3 to brother and mother of victim. He also stated that he showed the place of incident and house of the victim to the police. The defence put up its case to him through cross-examination that accused nos.1 to 3 did not come to terrace at 00.30 a.m. but the same was denied by him. It was also suggested to him that none of the accused assaulted Mayur with fist blows, kicks and wooden log but the same was denied by him. It was also suggested to him that accused nos.2 and 3 did not assault Mayur and did not drag him to the corner of terrace, but the same was denied by him. He also denied that the sat 20/37
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accused did not push him down from the terrace. He denied that none of the accused manhandled him. He also denied that the case of the defence that he gave more dose of liquor to Mayur and he demanded Rs.25,000/- from Mayur and Mayur was not ready to give him and on that count, altercation and manhandling took place between them and in that incident, since Mayur consumed more liquor, he lost balance and slipped from the terrace, he got frightened and came running down to the floor of the building by staircase, at that time, accused no.1 Pandurang came to smoke at the gate of Parshuram Apartment and he asked him why he was frightened and what made the sound, and apprehending his responsibility of the incident coming on his shoulder, he roped the accused in the present case falsely.
13. The testimony of PW Tirathsingh is self explicit and he gave the graphic details of the occurrence of the incident. He also knew the accused persons prior to the occurrence of the incident and specifically stated that they arrived on the terrace of Parshuram Apartment at about 00.30 a.m. on 12th April, 2007 and asked Mayur as to why threw the empty sat 21/37
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bottles on their mansion, since PW 3 had gone to answer the call of nature at the corner of the terrace and he also gave in detail the assault made by accused nos.1 to 3 upon the victim Mayur and he attributed specific roles upon the accused nos.1 to 3 during the occurrence of the incident. He gave name of accused nos.1 to 3 in his deposition since he was knowing them and ascribed them the specific role while participating in the incident and further narrated how the victim was assaulted by them by kick and fist blows and wooden log on the vital parts of his body and head and how the said victim was dragged to the corner of the terrace and was pushed down from the terrace and when PW 3 tried to intervene to rescue the victim, he also was manhandled by the accused and thereafter they ran away. Thereafter, he informed the incident to mother and brother of the victim and consequently, PW 4 Vijay informed the police who arrived on the spot and PW 3 showed the place of incident occurred on the terrace and also showed the house of the accused to them. His statement was recorded by the police personnel in the form of complaint and same was treated as FIR (Exhibit 17). It has also come in the testimony of PW 3 that deceased Mayur was his friend since childhood. As they used to consume liquor sat 22/37
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together but they never threw the bottles of liquor on the terrace of the accused. Moreover, he also stated that while coming to the terrace, Mayur changed the clothes and wore baniyan and bermuda pant and same clothes were found on the dead body of the victim Mayur as reflected in the photograph of the dead body of the victim (Exhibits 27 and 31) respectively. Some omissions as referred hereinabove in the FIR of PW 3 amounting to improvements in the deposition, were brought on record but the said omissions are not vital and do not go to the root of the matter and do not diminish the credibility of the said witness. The defence also puts its case to PW 3 Tirathsingh through cross-examination that PW 3 gave more liquor to deceased Mayur and he lost balance and slipped from the terrace but the same was denied by him. To ascertain the said position, we perused the photographs (Exhibits 24 and 25) and it is amply clear from photograph (Exhibit 24) that there was brick wall/coba on the terrace and it appears that there is no possibility of falling from the said terrace and hence, the defence putforth by the accused is not digestible. Moreover, it also appears that from the parapet walls of each floor above the windows as seen in photograph (Exhibit 25), and had victim Mayur slipped from the sat 23/37
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terrace, as per the case putforth by the defence, due to excess consumption of liquor, he would have fallen on the said parapet walls and would have sustained the injuries thereof on his body but such injuries neither appeared on his dead body in the photographs (Exhibits 31 and 27) nor reflected in the post mortem report (Exhibit 35) and therefore, the defence put forth by the accused is not conceivable. It further appears that the incident occurred at about 00.30 hours on 12 th April, 2007 and PW 3 Tirathsingh approached the police station and his report was taken down in writing by PW 5 PI Mulay who recorded the FIR at about 4.30 a.m. on 12 th April, 2007 under CR No.133/2007. In the said context, it was argued by the learned Counsel for the accused that there was delay of about four hours in lodging the FIR. However, we were not impressed by the said argument since PW 3 Tirathsingh immediately rushed to the police station after the occurrence of the incident and gave his report and PW 5 PI Mulay did the panchnama of the scene of offence at about 1.45 a.m. to 3.45 a.m. on 12th April, 2007 which was showed by the first informant to them and thereafter, police personnel lodged the FIR at about 4.30 a.m. and hence, it is not the folly of the first informant and at the most, it may sat 24/37
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be construed as defect in the investigation and not beyond that and hence, the same also cannot be construed as delay in lodging FIR. It is certainly not fatal to the case of the prosecution. Accordingly, the testimony of PW 3 complainant Tirathsingh, who is the eye witness, is not shaken in the cross-examination which proves the contents of the FIR and brought occurrence of the incident on record clearly ascribing specific roles to the accused nos.1 to 3 during the occurrence of the incident which connects the accused nos.1 to 3 to the crime clinchingly.
14. That takes to the testimony of PW 1 Anil Pimpalkhare, who is panch witness to the spot panchnama, who stated that he was called at 112, Narayan Peth Pune, on 12th April, 2007 and another panch viz. Dnyaneshwar Sanap was already present there. One Tirathsingh showed them the scene of offence which was at Parshuram Apartment. 112, Narayan Peth, Pune, which is a five storey building facing towards east. One body of male person was lying in front of the said building on the road and blood was oozing from the head and ear. In their presence, PSI Pawar shifted the dead body through the ambulance. Then they went to the sat 25/37
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terrace of the building and one plastic mat, two steel glasses, two china dishes, one steel dish, packets of Goa ghutka and one lock with key were lying there. The police seized the same under the panchnama in their presence and the said panchnama is produced at Exhibit 13 which was drawn between 1.45 a.m. to 3.45 a.m. on 12 th April, 2007. He also identified the aforesaid articles in the court. In cross-examination, he stated that the scene of offence is in thickly populated area of Narayan Peth, Pune. He also stated that it is rightly mentioned in the panchnama that Parshuram Apartment building faces west. The dead body was lying in the by-lane. He could not say whether injured person was lying at the distance of 3 to 3.5 feet away from the boundary of the building. There were scooters parked in the by-lane. Bhrahamendra housing society is near the Parshuram Apartment. The injured was lying between these two buildings. He also stated that road abutting to the said building remains busy with traffic. He further stated that for going to terrace of the building, one has to pass through the small hill situated on the 5 th floor and has to go by the iron staircase. The parapet wall of the terrace was just 8 inches high at all four sides but he could not see properly at the night time, sat 26/37
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particularly, whether it was coba or not and the floor was polished. It is stated that the scene of offence was inspected in the light of emergency light at the night time since the things were not visible. He also stated that one has to go by the side of the entrance doors of floor no.5 to climb up iron staircase for going to terrace. There was no street light near the Parshuram Apartment. PW 3 was present along with police personnel from 1.45 a.m. to 3.45 p.m. He also stated that police personnel did not seize the bottles and broken pieces of glass either from the scene of offence or from that area.
15. The testimony of PW 1 Anil Pimpalkhare i.e. panch to the spot panchnama proves the contents of the spot panchanama (Exjhibit 13) and seizure of the articles from the panchnama of scene of offence thereunder which was drawn immediately after the occurrence of the incident between 1.45 a.m. to 3.45 a.m. on 12 th April, 2007. Even the dead body was lying at the scene of offence at the relevant time. By drawing of the said panchnama, the sketch of the scene of offence was shown to the said witness during the cross-examination which in fact should have been sat 27/37
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taken on record and should have been exhibited since referred in the cross- examination which could have thrown light on the scene of offence in clear manner but same was not done. Admittedly, since it was a night time, the scene of offence was inspected in the light of emergency light. However, the police personnel did not seize the bottles and broken pieces of glass from the scene of offence, and though the testimony of PW 1 Anil Pimpalkhare refers to steel glasses, the contents of panchnama refers to glasses of glass which are the minor discrepancies which would not cause damage to the case of prosecution since it can be construed as defect in the investigation.
16. Coming to the testimony of PW 2 Prafulla Ramchandra Kulkarni, who is the panch to the inquest panchnama, and he stated that on 12th April, 2007, he was called in Sassoon Hospital to write the inquest panchnama and another panch was already present there. They saw corpse of Mayur Damle and he knew him since he was brother of his friend. He stated that deceased had bleeding injury on his occipital retion. Blood was oozing from his ears and and bermuda was on his body. He had abrasion sat 28/37
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on left hand. Police did the inquest panchnama of the dead body in his presence and appended his signature thereon which is produced at Exhibit
15. In cross-examination, he stated that the police showed the injuries and noted the same. There were abrasions on many parts of the body of the deceased. The PW 4 Vijay i.e. brother of deceased, identified the said body. Accordingly, PW 2 Prafulla Kulkarni, panch witness to the inquest panchnama, proved the contents of the said inquest panchnama (Exhibit 15). The testimony of PW 2 also discloses that the victim's baniyan and bermuda was on the said dead body which is in conformity to the deposition of PW 3 Tirathsingh.
17. Keeping in mind the said testimony of PW 2 Prafulla Kulkarni and contents of inquest panchnama and coming to the post mortem notes (Exhibit 35) and column no.17 of the said post mortem notes, disclosed the following external injuries sustained by the deceased Mayur :- 1) Laceration over occipital region of head 5 x 1 cm x bone deep with underlying bone fracture,
2) Abraded contusion over right shoulder posteriorly extending upto right elbow posteriorly extending upto right elbow posteriorly 40 x 7 sat 29/37
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cm.
3) Abrasion over right elbow laterally 3 x 1.5 cm. 4) Abrasion over right forearm flexor aspect lower 1/3 region 3 x 2 cm. 5) Abrasion over left elbow laterally 4 x 2 cm. 6) Abrasion over left forearm extensor aspect middle 1/3 region 2 x 10 cm.
7) CLW over base of left index finger dorsally 0.5 x 0.5 cm x tendon deep.
8) Contusion over right thigh anteriorly middle 1/3 region 6 x 7 cm. 9) Abraded contusion over right leg middle 2/3 region, anteriorly 20 x 4 cm.
10) Abrasion over right ankle 0.5 x 0.5 cm medially. 11) Abrasion over dorum of right foot anterolaterally 4 x 2 cm. 12) Abrasion over left thigh anteriorly lower 1/3, 6 x 4 cm. 13) Abrasion over left knee anteriorly 4 x 2 cm. 14) Abrasion over base of left greater toe medially 2.5 x 1.5 cm. 15) Abraded contusion 6 cm below occipital protruberance 6 x 5 cm. 16) Abrasion over lower thoracic spine 5 x 2 cm. 17) Abrasion over lumbar spine 3 x 2 cm.
All the above mentioned injuries are fresh. Fracture skull sat 30/37
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bones palpated.
Column nos. 19, 20 and 21 also discloses the internal injuries sustained by the said deceased viz.:-
19 Head -
(i) Injuries under the Haematomo over both parieto-occipital scalp, their nature region 15 x 14 cm, dark red. (ii) Skull-Vault and base- U-shaped displaced fracture over fronto- describe fractures, parietal region. Communiated depressed their sites, dimensions, fracture of occipital bones seen. Displaced directions etc. fracture of base seen over middle cranial fossa-infiltration of blood seen at fracture
sites
(iii) Brain-The appearance Dura matter ruptured over right hemispher of its coverings, size, region. Laceration of brain over both weight and general occipital region. Subarachnoid condition of the organ haemorrhage of size 6 x 5 cm over right itself and any fronto-parietal region and 7 x 4 cm over abnormality found in left fronto-parieto-temporal region. its examination to be
carefully noted
(Weight M.3 gram
F.2:75 grams)
20 Throat-
(a) Walls, ribs, cartilages Linear displaced fracture of right 2nd to 4th ribs laterally and left 3rd to 7th ribs laterally with infiltration of blood in surrounding
tissues.
sat 31/37
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(b) Picura Contains about 100 cc fluid blood bilaterally.
(c) Larynx, Trachea and Intact
Bronchi
(d) Right Lung Intact, pale
(e) Left Lung Laceration over lower lobe laterally 3 x 2 x 0.5 cm.
(f) Pericardium )
(g) Heard with weight ) Intact, normal size and shape (I) Large vessels )
(i) Additional remarks Nil
21 Abdomen-
Walls Intact
Peritoncum Haematomo of size 7 cm x 5 cm. over superior mesentry
Cavity Contains about 250 cc fluid blood Bucal Cavity, teeth, Intact
tongue and pharynx
Desophagus Intact
Stomach and its Ruptured anteriorly and contains about 50 contents cc semidigested foor particles. Aromatic odour perciened. Mucosa congested at
places.
Small Intestine and its )Partly loaded with gases and faeces contents )
Large intestine and its )
contents
Liver (with weight) Laceration of size 4 x 2 x 1 cm over right and gall bladder lobe inferiorty
sat 32/37
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Pancreas and Intact
Supraenals
Spleen with weight Laceration of size 2.5 x 1 x 0.5 cm over bilum
Kidneys with weight Haematomo over both perirenal tissues. Kidneys - pale
Bladder )Intact
Organs of generation )
Additional remarks --
with where possible,
Medical Officer's
deduction from the
State of the contents
of the stomach as to
time of death and last
meal
State which viscera (if 1) Blood for grouping. any) have been 2) Finger nails & hairs for CA retained for chemical 3) Viscera for CA
examination and also
quote the numbers on
the bottles containing
the same
Spine and Spinal cord Fracture dislocation of T10-T11 & L1-L2 level of spine with laceration of underlying
spinal cord.
18. The cause of death disclosed therein is that "Death due to traumatic and haemorrhagic shock due to multiple injuries. Viscera preserved for chemical analysis."
sat 33/37
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19. Accordingly, it is apparent that the post mortem on said dead body of victim Mayur Damle was made on 12 th April, 2007 between 10.30 a.m. to 11.30 a.m. The contents of the said post mortem notes are inconsonance with the contents of the inquest panchnama and testimony of PW 2 Prafulla Kulkarni. In the said context, it was canvassed by the learned Counsel for the accused that the doctor who performed the post mortem on the dead body was not examined to correlate the external injuries and internal injuries. However, it is seen from the application dated 10th June, 2008 submitted by the learned APP before the trial court that genuineness of the said documents and post mortem notes at serial no.6 of the said application was not disputed by the learned Advocate for the accused and he gave his consent to admit and read the said documents and post mortem notes in evidence and has made endorsement to that effect on that application on 17th September, 2008. Accordingly, the said post mortem notes were taken on record and marked "Exhibit 35" and hence, its contents and genuineness thereof cannot be challenged by the defence and hence, there is no substance in the argument advanced by sat 34/37
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learned Counsel for the accused. Thus, it is evident from the said post mortem notes and inquest panchanma that Mayur Yashwant Damle met with the unnatural death. The testimony of PW 4 Vijay Damle, who is the elder brother of victim Mayur Damle, is based upon the deposition of PW 3 Tirathsingh who informed him about the occurrence of the incident. Police personnel also recorded his statement on 17 th April, 2007 and he confirmed that deceased Mayur had close relations with the accused. Hence, it is apparent that there was no enmity between the deceased Mayur and the accused and the incident occurred as per the narration by PW 3 and hence, there is no possibility of implication of the accused therein falsely.
20. In the circumstances, having compressive view of the matter and after having taken the survey of entire tangible evidence, we are of the considered opinion that the testimony of PW 3 i.e. evidence of Tirathsingh, the eye witness, sustains unshattered which connects the accused nos.1 to 3 with the crime establishing their complicity therein and other circumstantial evidence adduced/produced by the prosecution is in sat 35/37
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consonance therewith and the medical evidence is also in tune with the ocular evidence and hence, the learned trial court has rightly convicted and sentenced the accused nos.1 to 3 for offences with which they were charged, and accordingly, there is no glaring mistake therein, and therefore, no interference is called for in the present case and consequently, present appeal deserves to be rejected.
21. In the result, the present appeal stands dismissed and convictions and sentences recorded against the appellants no.1 to 3 (original accused nos.1 to 3) by judgment and order dated 4 th October, 2008 rendered by Additional Sessions Judge, Pune, in Sessions Case No.437/2007 stands upheld and confirmed.
22 It is reported that the accused no.2 is on bail and therefore, his bail bond stands cancelled and he is directed to surrender before the learned Additional Sessions Judge, Pune, within the period of twelve weeks from today and thereafter, he be sent to the jail for undergoing the sentence awarded to him, failing which the said Judge shall issue arrest sat 36/37
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warrant against accused no.2, and to comply with the aforesaid directions. A copy of the present judgment be sent to the concerned Judge forthwith. (SHRIHARI P. DAVARE, J.) (A.S. OKA, J.) sat 37/37