Confirmation Case No.3 of 1993* with Criminal Appeal Nos. 603, 608 and 624 of 1993. Case: Deoraj Deju Suvarna Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Confirmation Case No.3 of 1993* with Criminal Appeal Nos. 603, 608 and 624 of 1993 |
| Counsel | For Appellant: Shirish M. Gupte with R. V. Kini, N. D. S. Shetty, Mrs. F. H. Ponda with Kiran Jain, Advs. and For Respondents: R. F. Lambay, Addl. Public Prosecutor, Advs. |
| Judges | H. H. Kantharia , J. and V. Sahai, J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 302, 149, 34; Evidence Act (1 of 1872) - Sections 3, 61, 9, 27; Criminal Procedure Code (2 of 1974) - Section 154; Constitution of India - Article 20 |
| Citation | 1994 CriLJ 3602 |
| Judgement Date | April 19, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
Vishnu Sahai, J.
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Siince Confirmation Case No. 3 of 1993 and the bunch of the aforesaid three appeals arise out of the same set of facts we propose disposing them off by a common judgment.
The five appellants in the three connected criminal appeals, namely (1) Maria John Dyanprakash Nadar, (2) Raju alias Rajendra Vijayan Pille Nair, (3) Guru Nadar Keshav Naikar, (4) Rajendra Mohan Kalmadi and (5) Devraj Deju Suvarna were convicted by the Additional Sessions Judge, Greater Bombay, in Sessions Case No. 587 of 1991, under the below enumerated counts:
(a) 143 I.P.C.
(b) 147 I.P.C.
(c) 148 I.P.C.
(d) 302/ 149 I.P.C. in the alternative under Section 302 read with Section 34 of I.P.C. for murdering Pramod Manual Kakde, and
(e) 302/ 149 I.P.C. or in the alternative under Section 302 read with 34 I.P.C. for murdering Anil Namdeo Shirsat.
As they were sentenced to death on both the counts under Section 302 read with 34 I.P.C. the learned trial Judge did not award them a separate sentence on the remaining counts.
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Feeling aggrieved by the aforesaid convictions and sentences, the five appellants have preferred the three connected criminal appeals. Clubbed with these three appeals is Confirmation Case No. 3 of 1993 which is the reference by the Additional Sessions Judge for confirmation of the death sentence awarded to the appellants.
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At the very outset, we cannot restrain expressing our indignation at the trial Judge for two things which he has done:-
Firstly, after convicting all five appellants and there being a charge under Section 302 read with Section 149 of the Indian Penal Code, he has chosen to convict them under Section 302 read with Section 34 I.P.C. This, in our opinion is shocking. Secondly, after finding the accused guilty in utter disregard of the provisions contained in Section 235 of the Criminal Procedure Code, the learned Trial Judge has chosen first to award capital punishment to the appellants and then, a farce of hearing them on the quantum of sentence has been done.
The matters in consideration before us, arise out of two gruesome murders namely, of Pramod Manual Kakde alias Balu and Anil Namdeo Shirsat which were committed at about 2.30 a.m. on 25th March, 1991 at the culvert of Kamraj nagar hutments, Eastern Express Highway, Ghatkopar (East) Police Station Pant Nagar, District Bombay.
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The case for the prosecution as it emerges from the recitals contained in the FIR, lodged by Pravin Namdeo Shirsat (PW 2) and from his deposition made in the trial Court, in brief, runs as under:-
The brother of the informant Anil Namdeo Shirsat and one Pramod Manual Kakde alias Balu on the night of 24th March, 1991, are alleged to have gone to the house of appellant MariaJohn Dyanprakash Nadar who lives in the same locality, namely Kamraj nagar hutments, for purchasing English liquor. The case for the prosecution is that Maria John Dyanprakash Nadar illegally sells bottles of English liquor. The prosecution case is that at about 2.30 a.m. on the night of 25th March 1991, the informant who was a student of Class IX was preparing for his examinations and was awake. At that time his brother Anil came and told him that he and Pramod had gone to purchase liquor from the house of Maria John. At that time, Sadanand (absconding accused, not arrested till conclusion of the trial) assaulted him (Anil) and Pramod Manual Kakade. Finding opportunity, he ran to his house, woke up the informant, some boys and thereafter, first Anil left for the place of incident, and then, after two minutes of his leaving, Pravin followed him. The case is that when Pravin reached the place of the incident, he saw that five appellants and the absconding accused Sadanand were there armed with choppers swords and soda water bottles. Pravin saw that Pramod Kakde was being attacked by Maria John and Raju with swords, by Sadanand and Devraj with choppers and by Guru and Kalmadi with soda water bottles. P.W. 2 Pravin Namdeo Shirsat further saw that Anil tried to save his brother but, the accused persons also assaulted him. Maria John attacked him with a sword on his head. Raju inflicted a blow by a sword on Anil's cheek, Sadanand inflicted a blow by a chopper on Anil's chin, Deoraj inflicted a blow by a chopper on Anil's forehead, Rajendra Kalmadi and Guru hit Anil by throwing soda water bottles at him. The informant has stated that both Anil and Balu were shouting "Vachava Vachava" and both were injured on account of the aforesaid assault. Thereafter, P.W. 2 Pravin Namdeo Shirsat went to the police outpost but, finding no constable there, he came to the house of Balu and tried to wake up his family members and as a result thereof Balu's brother Paulaus Manual Kakade (P.W. 4) got up. Thereafter, Anil Shirsat and Paulaus Manual Kakde, along with some others, came to the nalla where there were two taxis. All of them along with the two victims proceeded to the Rajawadi Hospital. On reaching the hospital, Pramod Kakade was found to be dead and Anil Namdeo Shirsat precariously injured. There at the hospital, P.W. 14 Dr. Pramod Tripthinath Jha, at about 3.30 a.m. medically examined Anil. The doctor found that Anil Shirsat was unconscious, his general condition was poor, he was bleeding profusely, and there was history of attack by chopper. Dr. Jha found the following injuries on the person of Anil Shirsat:-
(1) 1 Incised wound on vertex 6 inch by 1 inch bone deep fracture skull, clinical incised fracture skull.(2) Incised wound over forehead, frontal region 2 inch x 1 inch bone deep clinical fracture skull.
(3) C.L.W. over lower jaw with teeth and bone exposed, fracture mandible 6 inch x 1 inch bone deep.
In the opinion of Dr. Jha, the aforesaid injuries of Anil could be caused by chopper or by a sword. At 3.35 a.m. Pramod Manual Kakde who was dead was brought for medical examination but, since he was dead, his detailed medical examination was not done by Dr. Jha. Dr. Jha found one injury namely massive C.L. W. over left side of the neck with muscles, bone, jugular artery exposed and bleeding profusely. He also opined that the aforesaid injury could be caused by a sharp instrument like sword, chopper, axe etc.
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After the medical examination by P. W. 14, (Dr. Jha) P.W. 3 Constable Raju Murlidhar Chowdhari, who was on night duty at Rajawadi Hospital and was deputed in the casualty, on narration of the facts of the incident by P. W. 2 Pravin Shirsat and P. W. 4 Paulaus Manual Kakade, made entries in the Emergency Police Register (EPR). From his cross-examination, it transpires that the aforesaid entries were made between 3.35 a.m. and 4-10 a.m. on 25th March, 1991. In our opinion, this EPR entry is of crucial importance for the decision of this case, and hence, we are reproducing recitals in the EPR, verbatim. (The EPR has been proved by the prosecution and is Exh. 14).
"today, the date 25-3-1991, at about 2.30 a.m. John, Sada Anna, Raju Nair and Guru and others inflicted blows on the head, face, and chest of the deceased person and on the head of sick (injured) person with a sharp edged weapon i.e. chopper at their residential place and when the brother of the deceased person by name Paulos Kakade, a Christian aged 25 years, and the brother of the sick (injured) person by name Pravin Shirsat a Hindu aged 17 years, brought them to Rajawadi Hospital, the doctors examined them and declared the person (at Sr. No. l) dead and the person (at Sr. 2) i.e. sick (injured) person was admitted in ward No. 7. The said sick injured person is not able to speak".
In the EPR at serial No. 1 is mentioned Pramod Manual Kakade and at serial No.2 Anil Shirsat. The aforesaid recitals show that in the EPR. appellants Devraj Survana, and Rajendra Kalmadi are not named and neither is there mention of soda water bottles and swords in it.
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The evidence of P.W. 3 Raju Chowdhari, who recorded the aforesaid EPR is that telephonically, he communicated the EPR entries to constable P.C. No. 25126 of Pant Nagar Police Station. On receiving the aforesaid telephonic message, the police of Pantnagar police station got into action. P.W. 15 S.H.O. Mangesh Vasant Sawant and P.W. 16 Shankar Babu Renose, P.S.I. accompanied by two constables proceeded for Rajawadi Hospital. There, P.W. 2 Pravin Shirsat stated that he was a witness of the incident. He gave an account of the incident to P. W. 15 S. H. O. Mangesh Vasant Sawant at Rajawadi Hospital and that account is treated by the prosecution to be the FIR. In the FIR, the names of six accused persons namely ( 1) Maria John Dyanprakash Nadar (2) Sadanand (3) Raju Nair (4) Guru (5) Deoraj and (6) Rajendra Kalmadi, are mentioned. Weapons mentioned in the FIR are chopper, sword and soda water bottles. It is a mystery in this case as to at what time the FIR was lodged certainly it cannot be 04.10 hours as mentioned in the chik F.I.R. because that is the time when P. W. 3 constable Raju Choudhari telephonically communicated the contents of the EPR to the authorities at the police station Pantnagar.
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After recording the F.I. R. P. W. 15 and P.W. 16, S.H.O. Mangesh Sawant and Shankar Babu Renose, P.S.I., respectively got busy in preparing the inquest reports of the two dead bodies, of the deceased persons. It may be mentioned here that after lodging the F.I.R., Anil Namdeo Shirsat succumbed to his injuries. Panchas were called and the inquest reports were completed. Thereafter, P.W. 15 Mangesh Sawant and P.W. 16 Shankar Babu Renose proceeded for the place of the incident. There panchas were called and in the presence of P.W. 6 Govind Gopal Lokhande, P.W. 16 Shankar Babu Renose, P.S.I., took sample of blood-stained earth, plain earth, blood-stained pieces of glass of auto rickshaw which is alleged to have been standing at the place of the incident when the incident took place and blood-stained pieces of glass of broken soda water bottles. The panchanamas pertaining to these recoveries is Exhibit 21. On the same day i.e. on...
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