DHIRAJ SHANKITILAL KHAKORDIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) SUKHDEO Salve an employee of the Irrigation department of the Government of Maharashtra at Aurangabad and a resident of Kranti Nagar locality had four sons viz. Bharat (P. W. 5) Vijay, Deepak {p. W. 3) and Avinash (since deceased ). In an incident of physical assault by weapons by a group of persons on the Adalat road near the premises of the district Court on 27-1-1997 which was preceded by an earlier incident involving Deepak (P. W. 3), Avinash (died) and Deepak was seriously injured. In all 13 accused were put on trial in Sessions Case No. 112/1997 and the learned Additional Sessions Judge at Aurangabad by his judgment and order dated 16th February, 1999 was pleased to acquit original accused Nos. 2 to 4, 6 to 9 and 11 and 13 in respect of the offences punishable under sections 302, 307, 341, 143 and 147 and 148 r/w section 149 of I. P. C. as well as section 5 r/w section 25 of the Arms Act whereas accused No. 1 Dhiraj accused No. 5 Vinod, accused No. 10 Manoj and accused No. 12 Raju @ Dolya also came to be acquitted for offences punishable under sections 147, 148 and 149 of I. P. C. as well as section 5 r/w section 25 of the Arms Act. However, these four accused who are the appellants in these appeals came to be convicted for offences punishable under sections 302, 307 and 341 r/w 34 of i. P. C. Each one of them was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- in default to further undergo rigorus imprisonment for one year for the offence punishable under section 302 r/w 34 of I. P. C. Whereas for the offence under section 307 r/w section 34 of I. P. C. all of them were sentenced to undergo rigorous imprisonment of 7 years and to pay a fine of Rs. 2000/-each, in default to undergo R. I. for one year and for the offence punishable under section 341 r/w 34 of I. P. C. each one of them has been sentenced to undergo R. I. for one year. The period of imprisonment already undergone was directed to be set off under section 482 of Cri. P. C.

(2.) BEING aggrieved by the said order of conviction and sentence, appellants accused have approached this Court and by order dated 26th April, 1999 appellants in Appeal No. 11 / 2004 were released on bail. Whereas appellant Dhiraj Shantilal Khakorida (in Criminal Appeal No. 101/1999) was refused bail. He was released on temporary bail for a period of one week by order dated 27-4-2000 and was directed to surrender to the jail authority on 12-5-2000. However, he did not surrender and was declared absconding. The police were directed to take appropriate steps to take him in custody and the assistant Commissioner of Police, Aurangabad (Incharge of the Kranti Chowk police Station) remained present before us during the course of hearing of these appeals and assured that the said appellant-accused shall be taken in custody at the earliest possible. On 18-12-2003 this Court allowed the original appellant 2 to 4 to file a separate appeal as they were represented by different Advocates and thus Criminal Appeal No. 11/2004 came to be filed and it was directed to be heard alongwith Criminal Appeal No. 101/1999.

(3.) THE prosecution case briefly unfolds in the following manner, deepak Salve (P. W. 3) an auto rickshaw driver while taking 'u' turn infront of the Aurangabad District Central Cooperative Bank on Adalat Road (hereinafter referred to as A. D. C. C. Bank for brievity) on 27-1-1997 dashed against a scooter and both the rider i. e. Vinod accused No. 5 and Manoj accused No. 10 (both real brothers) fell down. They assaulted Deepak and he received injuries. While this incident was taking place, Pandharinath Kharat (P. W. 2), Prakash Nikalje (P. W. 4) Vijay Khandagale (P. W. 6) and Arun Borde (P. W. 7) approached at the scene and Deepak went to the Kranti Chowk Police station to file a complainant. They were followed by Bharat Salve (P. W. 5 ). The Inspector on duty i. e. Chandrakant Landge (P. W. 26) advised that Deepak salve should be taken to the Ghati hospital and a medical slip to that effect was issued. Accordingly, Deepak alongwith Pandharinath and Bharat went to the Ghati hospital in the auto rickshaw of Deepak Kale (P. W. 15) whereas prakash, Vijay and Arun followed them in another rickshaw. Deepak Salve (P. W. 3) was treated in the Ghati hospital as he had suffered a bleeding injury on his lips/nose and he alongwith Pandharinath was returning to his house in the rickshaw of Deepak Kale (P. W. 15) whereas Bharat Salve (P. W. 5) went to the Police Station to hand over the duplicate of the medical slip. When their rickshaw reached at the signal near the District Court building. It was taking turn to go to the Kranti Nagar area and at that spot, the rickshaw was stopped by accused No. 5 Vinod and accused No. 10 Manoj and all the occupants of the rickshaw were dragged out. They shouted for other assailants who were armed with knives, Kirpan and Dagger etc. This included accused No. 1, accused No. 12 and others. Within few minutes Prakash, Vinod and Avinash arrived at the scene in another rickshaw from the Ghati hospital and they also noticed the attack and Prakash (P. W. 4) went to the extent of catching hold of the accused No. 1 when he was fleeing away after noticing the police van arriving at the scene. It is also the case of the prosecution that after the first incident involving Vinod and Manoj, the accused No. 1 alongwith Vinod and Manoj had gone to the Kranti Chowk Police Station met the Police Inspector (P. W. 26) and requested that Deepak (P. W. 3) be taken into custody as he had given a dash and injured Vinod and Manoj. The Inspector had advised the accused No. 1 to take Vinod and Manoj to Ghati hospital and medical slip was also handed over. However, they did not go to the Ghati hospital and instead decided to attack the rickshaw driver i. e. P. W. 3 and thus were awaiting at the traffic signal which leads to their residence i. e. Kranti Nagar area. Inspector Landge (P. W. 26) after the first incident had visited the site opposite the A. D. C. C. Bank and after seeing the situation being in order left for normal patrolling duty. When he reached the syndicate bank on the Railway Station Road, he received a message regarding the assault on Deepak and others near the district Court premises and therefore, he arrived at the scene. In the meanwhile, Deepak Kale (P. W. 15) who was hit by stone abandoned the rickshaw and proceeded to the Kranti Chowk Police Station. The police party from the police Station also arrived at the scene. Deepak was stabbed with Knives dagger and had fallen on the ground in bleeding condition. His brother Avinash (the deceased) who was standing at nearby place had tried to intervene and was mercilessly stabbed by the accused and more particularly accused Nos. 1 and 12. He was stabbed on his chest, abdomen, spinal cord and he fell down in bleeding condition. At this time when the police party arrived at the scene, the accused tried to flee from the scene and three of them i. e. Dhiraj accused no. 1. Vinod accused No. 5 and Manoj accused No. 10 were picked up by the police and taken to the Ghati hospital in a van alongwith the injured. Out of these three accused, accused No. 1 and accused No. 5 were injured. Deepak (P. W. 3) and Avinash alongwith Pandharinath (P. W. 2) who was also injured were taken in a separate van to the Ghati hospital. On examination of Avinash the doctors declared him dead and Deepak was noticed to be in serious condition. He was therefore shifted for emergency medical treatment including major operations. Whereas Pandharinath was treated and taken to the Police station but accused No. 1 and accused No. 5 were admitted in ward No. 17. They were examined by Dr. Pagaroa (P. W. 17) and administered medical treatment and provisional injury certificates were issued by the casualty Medical officer. Their clothes were seized at Exh. 1 and 2 belonging to Dhiraj, Exh. 3 and 4 belonging to Vinod, Exh. 5 and 6 belonging to Manoj (though Manoj was not admitted in the hospital ). Similarly the clothes of deceased Avinash and injured witness Deepak (P. W. 3) were also seized. Exh. D, E, F and I are clothes of Deepak (P. W. 3), Exh. H, I, J, K are clothes of Avinash. Injured pandharinath (P. W. 2) was also treated and provisional injury certificate (Exh. 65) came to be issued by the Medical Officer. Pandharinath filed complaint which was treated as F. I. R (Exh. 58) and the Inspector (P. W. 26) recorded statements of other persons. He handed over the investigation to P. I. Dabhade (P. W. 27) and then investigation was taken over by P. I. Mahajan (P. W. 28)from 29th January, 1997 onwards. Accused Nos. 1, 5 and 10 were arrested immediately whereas accused No. 12 Raju was absconding. He was picked up in Mumbai in the night of 2-2-1997 and was produced in the few hours of 3-2-1997 before the Police Inspector Kranti Chowk Police Station who in turn produced him before the Magistrate on the same day. On the basis of his statement discovery of weapon i. e. article No. 34 was effected in terms of panchanama Exh. 84 and 85 in presence of panch witness Ingole (P. W. 10)and Sadavarte (P. W. 11) whereas article Nos. 14 and 15 which were allegedly used by accused Nos. 1, 5 and 10 were recovered from Deepak Bhojayye accused No. 11. Immediately after the second incident, on suspicion Police constable Rithe (P. W. 24) with the assistance of Police Constable Babar (P. W. 25) seized the clothes as well as weapons alongwith which were sent to the chemical analyser by the Investigating Officer and on completion of the investigation as well as receipt of chemical analyser report, charge-sheet came to be filed before the learned Magistrate who in turn committed the case to the session Court. It is also pertinent to note that the blood samples of the injured witnesses i. e. P. W. 2, P. W. 3 as well as deceased and accused were collected and sent for chemical analysis. The chemical analysis reports are at Exh. 150 to 180.