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CASE NO.:

Appeal (crl.) 651-652 of 2001

PETITIONER:

Rajendra Shantaram Todankar

RESPONDENT:

State of Maharashtra & Ors.

DATE OF JUDGMENT: 07/01/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR.

JUDGMENT:

J U D G M E N T

R.C. Lahoti, J.

Eight accused persons, namely, Ashok Bhikaji Gurav (accused

no.1), Nathuram Bhikaji Gurav (accused no.2), Santosh @ Kalya

Jagannath Shirwadkar (accused no.3), Santosh @ Babya Dashrath

Nagvekar (accused no.4), Ravindra @ Bobby Anant Surve (accused

no.5), Anant @ Papya Jagannath Shirodkar (accused no.6), Prakash @

Vatanya Laxman Pednekar (accused no.7) and Rajendra Shantaram

Todankar (accused no.8) were tried on several charges framed under

Sections 143, 144, 147, 302, 302/149, 302/34, 307, 307/149, 307/34,

324, 324/149, 324/34 and 324/511 IPC. On trial all the accused

persons were held to have committed offences punishable under

Sections 143, 144, 147, 302/149 and 324/149 IPC. For offence under

Section 302 read with Section 149 IPC each of the accused persons

was sentenced to suffer imprisonment for life and to pay a fine of

Rs.1000/-, in default of payment to suffer further R.I. for 6 months.

For offence under Section 324/149 IPC each of the accused was

sentenced to suffer R.I. for 6 months. Though all the accused were

also convicted for the offences punishable under Sections 143, 144

and 147 of the IPC but no separate sentences were awarded thereon.

All the eight accused persons preferred an appeal before the High

Court. During the pendency of the appeal Santosh @ Babya Dashrath

Nagvekar and Prakash @ Vatanya Laxman Pednekar the accused

numbers 4 and 7, died. The appeal surviving for decision as regards

the six accused was held liable to be dismissed upholding the

conviction as recorded and the sentences as passed by the Trial Court.

Ashok Bhikaji, accused no.1 and Nathuram Bhikaji accused

no.2 filed SLP(Crl.) No.3738/2000 which was dismissed as not

admitted by this Court on 25.1.2001. Accused no.8, Rajendra

Todankar filed SLP(Crl.) 4205/00 which has been registered as

Crl.Appeal No.651/2001 on leave to appeal having been granted. SLP

(Crl.) preferred by Santosh Shirwadkar, Ravindra Surve and Anant

Shirodkar (accused nos.3, 5 and 6) has been registered as Criminal

Appeal No.652/02 on leave being granted. Thus, in substance it is the

guilt of the accused nos.3, 5, 6 and 8 which survives for determination

in these appeals.

For the sake of convenience the accused persons shall be

referred to by their numbers as they were arrayed before the Sessions

Court. Reference to accused nos. 1 and 2 though their SLP(Crl) has

been dismissed and to accused nos.4 and 7, who have died during the

pendency of their appeal in the High Court is being made where

necessary only for the purpose of determining the guilt of the accused-

appellants before us.

In the locality known as Prabhadevi situated within the

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jurisdiction of police station Dadar of Mumbai there is a place known

as Hatiskar Wadi. Nariman Bhat Nagar is an adjoining locality. One

Mukesh Purav resides in Hatiskar Wadi. Ashok Gurav, accused no.1

resides in Nariman Bhat Nagar. These two persons are ring-leaders of

their respective gangs formed in the two localities and they are

involved in various illegal activities. The injured persons and the

accused persons are residents of these two localities and were known

to each other since before the incident. An acute rivalry prevails

between the two groups. Prior to this incident on the festival of

Janmashtami there was a competitive game played known as Dahi

Handi, also known as 'Govinda', wherein both the gangs had

participated and quarrelled with each other. The present incident took

place on 27th September, 1991 at about 8.30 p.m.

There is a four-storeyed building the ground-floor whereof is

occupied by a restaurant known as 'Sanket Bar'. There is a road in

front of the hotel. The door leading to the way for upper floors of the

building is by the side of the hotel. There is a pan shop near the hotel.

By the side of the hotel there are other shops providing the look of a

commercial complex.

Gopikrishna, who died in the incident, was standing in front of

the entrance door of the building. Jaideep Bhosale, PW3 and

Dyandeo Sawant, PW4 were standing near Gopikrishna. The three

were busy talking to each other. At a little distance from there one

Sanjay Patil, PW1 was standing. Apparently, Sanjay Patil and the trio

consisting of Jaideep, Dyandeo and Gopikrishna had nothing to do

with each other. Sanjay, PW1 saw all the eight appellants coming

towards the hotel. The accused persons passed by his side and

reached the place where the three persons including Gopikrishna were

chit-chatting. The accused persons were armed with naked weapons

such as swords, choppers and gupti. As soon as they reached near

Gopikrishna they opened an assault on all the three persons standing

there. Jaideep and Dyandeo ran away from the place. Gopikrishna

tried to escape for his life by running towards the door providing

access to the staircase leading to upper floors of the building. He

went on running upto the fourth floor leaving a trail of blood behind.

The accused persons chased him and injured him fatally. He fell

down in a pool of blood on the landing of the fourth floor.

Sanjay, PW1 apprehended that he may be assaulted and injured.

He tried to run away from the place of the incident. He was noticed

by the appellants; some of them followed him and inflicted injuries on

his person.

The appellants then shouted loudly so as to create terror in the

locality. The frightened neighbours downed the shutters of their

shops and houses. The appellants ran away. Sanjay, PW1 picked up a

taxi and proceeded to KEM hospital for medical help and treatment.

In the meantime the witnesses Jaideep and Dyandeo returned to the

place of the incident. They reached the fourth floor and found

Gopikrishna lying injured and bleeding profusely. They brought him

down and removed him to KEM hospital where he was declared dead.

A police constable on duty at the hospital flashed a message to the

police station whereon PSI Agarkar and PI Pisal rushed to the

hospital with police force. The statement of Sanjay was recorded, got

signed by him and sent to the police station where it was registered as

FIR of the incident at 11.30 p.m. The investigation commenced.

Inquest on the dead body of Gopikrishna was held. His clothes were

seized. Autopsy on the dead body was performed by Dr. Subhash,

PW14. The following injuries were found on his person :

(i) Incised wound on back of head, 4 cm x 1.0 cm. x

muscle deep. On right side of midline in pareieto-

occipital region

ii) Incised stab wound on left gluteal fold. Oblique

wound. Lower and pointed upper end. Blunt

regged contused. Dimensions : 2.5 cm x 0.8 cm x

deep in muscles.

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iii) Incised wound on right thumb palmar aspect.

Vertical wound 1.5 cm x 0/5 cm.

iv) Scratch on right occipital bone outer table in base

of injury no.1 with contusion in layer of scalp deep

to the injury.

On dissecting, the injury no.2 was found to be deep in

gluteal muscles and had cut in gluteal vessels with extensive

haemorrhage found in muscles. Total depth of injury was 15.0

cm.

In the opinion of Dr. Subhash, the cause of death was

haemorrhage and shock due to injury to major blood vessels by sharp-

edged weapons. All the injuries were ante-mortem and sufficient in

the ordinary course of nature to cause death. When Dr. Subhash was

examined in the Court he stated that the injuries on the person of the

deceased could be caused by weapons like gupti and chopper.

Though buttock is not a vital organ of the body but in case of the

deceased important blood vessels in the buttock were injured and so

the death was caused. In spite of having sustained the injuries, the

deceased could have run and climbed the stairs to save his life.

Sanjay Patil, PW1 was medico-legally examined by Dr.

Subhash Shivade who prepared the memo of injuries. However by the

time the trial commenced Dr. Shivade had left the Government

service and gone to England. Dr. Arun, PW17, who had worked with

Dr. Shivade, was examined. He proved the memo of injuries

containing the particulars of the injuries suffered by Sanjay, PW1.

The following injuries were found on the person of Sanjay Patil :

1) Incised wound in right perictal region 6 x 2 cm,

bone deep

2) Incised wound on right elbow, joint opened.

3) Multiple abrasions on back and right scapula.

4) Stab injuries on right hypocondrium (abdomen)

2.5 x 2x3 cms, about 4 cms from the subcostal

region, about 10 cms lateral to the mid line.

In the opinion of Dr. Arun, looking to the nature of injuries,

death was unlikely from such injuries. The injuries could have been

caused by weapons like gupti and chopper. There was no bony injury.

No vital organ of the body was cut or damaged.

The prosecution case hinges upon the testimony of four

witnesses, namely, Sanjay Patil (PW-1), Jaideep (P-3), Dyandeo

Sawant (PW-4) and Prashant (PW-5). We will analyse the testimony

of these four witnesses so as to find out the nature of the offence

committed and the involvement of the accused persons. Whether all

the accused persons, as alleged, were involved in the incident, and if

so, to what extent ?

We have already noticed that the localities to which the accused

persons and the deceased and the witnesses belong are situated

adjoining each other. The presence of the accused persons at the

place of occurrence can be natural as well. Though the witnesses

have deposed to all the eight accused persons having come together at

the place of the incident and all the accused persons having assaulted

the deceased Gopikrishna and the injured Sanjay Patil (PW-1),

however, a closer scrutiny of the testimony of the eyewitnesses

reveals that, in fact, there are two incidents of assault which have

taken place in quick succession. The nature of the guilt attributable to

the accused persons or the criminal liability which can be fastened on

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them shall have to be determined by reference to the two assaults.

There is no material available on record to hold that the deceased

Gopikrishna and the injured Sanjay Patil had anything to do with each

other or the common object of the alleged unlawful assembly of eight

persons was to cause the death of Gopikrishna as also to cause injuries

to Sanjay Patil and such common object was shared by all the eight

accused persons. A careful reading of the testimony of the

eyewitnesses reveals that while accused Nos. 1 to 5 assaulted the

deceased Gopikrishna, the other three accused persons have allegedly

participated in assault on Sanjay Patil. We are referring to assault by

three accused persons, namely, accused Nos. 6 to 8 on Sanjay Patil by

way of stating the prosecution case because as we will discuss shortly

hereinafter, we have grave doubts if Rajendra Todankar, the accused

No. 8, had really participated in the assault and, therefore, whether in

the facts and circumstances of the case he deserves to be allowed

benefit of doubt.

Section 149 of the Indian Penal Code provides that if an offence

is committed by any member of an unlawful assembly in prosecution

of the common object of that assembly, or such as the members of that

assembly knew to be likely to be committed in prosecution of that

object, every person who at the time of the committing of that offence,

is a member of the same assembly is guilty of that offence. The two

clauses of Section 149 vary in degree of certainty. The first clause

contemplates the commission of an offence by any member of an

unlawful assembly which can be held to have been committed in

prosecution of the common object of the assembly. The second clause

embraces within its fold the commission of an act which may not

necessarily be the common object of the assembly nevertheless the

members of the assembly had knowledge of likelihood of the

commission of that offence in prosecution of the common object. The

common object may be commission of one offence while there may

be likelihood of the commission of yet another offence the knowledge

whereof is capable of being safely attributable to the members of the

unlawful assembly. In either case every member of the assembly

would be vicariously liable for the offence actually committed by any

other member of the assembly. A mere possibility of the commission

of the offence would not necessarily enable the Court to draw an

inference that the likelihood of commission of such offence was

within the knowledge of every member of the unlawful assembly. It

is difficult indeed, though not impossible, to collect direct evidence of

such knowledge. An inference may be drawn from circumstances such

as the background of the incident, the motive, the nature of the

assembly, the nature of the arms carried by the members of the

assembly, their common object and the behaviour of the members

soon before, at or after the actual commission of the crime. Unless

the applicability of Section 149 either clause is attracted and the

Court is convinced, on facts and in law both, of liability capable of

being fastened vicariously by reference to either clause of Section

149 of IPC merely because a criminal act was committed by a

member of the assembly every other member thereof would not

necessarily become liable for such criminal act. The inference as to

likelihood of the commission of the given criminal act must be

capable of being held to be within the knowledge of another member

of the assembly who is sought to be held vicariously liable for the said

criminal act. These principles are settled. Applying these tests to the

facts found proved beyond reasonable doubt the accused nos.1 to 5

can be held liable for the offence under Section 302/149 IPC for the

assault resulting in death of Gopi Krishna while accused nos. 6 and 7

can be held liable for their individual acts of assault committed on

Sanjay Patil.

They are the accused Nos. 1 to 5 who had assaulted the

deceased and followed him upto the 4th floor. The accused Nos. 1 to 5

armed severally with deadly weapons having initially assaulted the

deceased Gopikrishna when he was standing on the ground floor,

chased him by following him on the staircase leading to the 4th floor

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where he fell down in the pool of blood. So far as accused Nos. 1 to 5

are concerned, it can be safely inferred that they were the members of

unlawful assembly armed with deadly weapons formed with the

common object of fatally injuring the deceased Gopikrishna so as to

cause his death. Their conviction for the offence under Section 302

r/w 149 IPC is liable to be sustained. If death has been caused in

prosecution of common object of unlawful assembly, it is not

necessary to record a definite and specific finding as to which

particular accused out of the members of the unlawful assembly

caused the fatal injury. Once an unlawful assembly has come into

existence, each member of the assembly becomes vicariously liable

for the criminal act of any other member of the assembly committed

in prosecution of the common object of the assembly.

So far as the assault on Sanjay Patil (PW-1) is concerned, the

witnesses do not attribute any overt act qua Sanjay Patil (PW-1) to

the accused Nos. 1 to 5. It appears that while beating the retreat,

some of the accused other than accused nos. 1 to 5 noticed Sanjay

Patil and diverted themselves to an assault on him. Assault on Sanjay

Patil was not pre-planned nor shared as common object by accused

nos.1 to 5. No unlawful assembly was in existence nor formed into

being at the spur of the moment so far as the assault on Sanjay Patil is

concerned.

We would like to deal specifically with the case of Rajendra

Todankar (accused No.8). According to Sanjay Patil (PW-1), he was

assaulted by three accused persons, namely, Anant @ Papya (accused

No. 6) who stabbed on the right side of the stomach with a gupti; by

Prakash Pednekar @ Vatanya (accused No. 7) who dealt a sword blow

on the right side of upper head and by Rajendra Todankar (accused

No. 8) who dealt sura (dragger) blows on his back twice and on the

left arm near elbow, whereafter he fell down. During cross-

examination he stated that the accused Rajendra Todankar had used

his weapon with force while assaulting on him. Prashant (PW-5)

states Vatanya (accused No. 7) and Rajendra Todankar (accused No.

8) assaulted Sanjay Patil. According to this witness, the weapon said

to have been used by Rajendra Todankar was a chopper. During

cross-examination he stated that Rajendra Todankar had dealt chopper

blows forcefully on Sanjay. He further stated that the accused Babya

had also stabbed Sanjay. Apart from the fact that there is divergence

in the statements of the two witnesses as to the weapon which is

attributed to accused no.8, what is more significant is that injuries by

chopper or sura (dragger) are not to be found on the back of Sanjay

and in the manner in which the two witnesses stated the injuries

having been caused to Sanjay forcefully. Such use of sharp weapon

would not result in mere abrasion on the back. There is no injury on

the left arm of Sanjay (PW-1). Thus, the injuries specifically

attributed to accused Rajendra Todankar by Sanjay (PW-1) and

Prashant (PW-5) and consequently the role assigned to him in the

incident is belied by medical evidence. Jaideep (PW-3) and Dyandeo

Sawant (PW-4) have not mentioned even the presence of Rajendra

Todankar much less any participation by him in the assault. This

accused Rajendra Todankar is in government service. In his statement

u/s 313 CrPC he stated that he is a social worker whose activities are

not to the liking of Mukesh Purav, the gang leader, and that is the

reason why he has been falsely implicated. The participation of

Rajendra Todankar (accused No. 8) in the incident is rendered

doubtful.

So far as the accused Anant @ Papya (accused No. 6) and

Prakash @ Vatanya (accused No. 7) are concerned, they cannot be

held to be the members of the unlawful assembly, which assaulted

Gopikrishna. Their assault on Sanjay Patil (PW-1) is proved beyond

reasonable doubt. Each one of them has caused simple injuries by

sharp weapon on the person of Sanjay Patil. Therefore, they can each

be held liable only for an offence punishable u/s 324 IPC. Their

conviction under Section 302 r/w 149 IPC, so far as the murder of

Gopikrishna is concerned, cannot be sustained and must be set aside.

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So also their conviction under Sections 143, 144 and 147 IPC must

go.

For the foregoing reasons, Criminal Appeal No. 651 of 2001

preferred by Rajendra Shantaram Todankar (accused No. 8 in the

Trial Court) is allowed. His conviction is set aside and he is acquitted

of the charges framed against him. He shall be released forthwith if

not required to be detained in connection with any other offence.

In Criminal Appeal No. 652 of 2001 the appellants are Santosh

@ Kalya (A-3), Ravinder @ Bobby (A-5) and Anant @ Papya

Shirodkar (A-6). The conviction of accused Santosh @ Kalya (A-3)

and Ravinder @ Bobby (A-5) under Section 302 r/w 149 IPC along

with the sentence of imprisonment for life are maintained. Their

conviction under Section 324/149 IPC is set aside. So far as accused

Anant @ Papya Shirodkar (A-6) is concerned, his conviction under

Section 302/149 IPC as also under Sections 143, 144 and 147 IPC is

set aside. He is held guilty under Section 324 IPC and for this offence

sentence of R.I. for 6 months is maintained. Criminal Appeal No. 652

of 2001 is allowed in part to this extent.