Shantaram Todankar Vs. State of Maharashtra & Ors  Insc 5 (7 January 2003)
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
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.
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.
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.
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.
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.
locality known as Prabhadevi situated within the 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.
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.
side of the hotel there are other shops providing the look of a commercial
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.
accused persons chased him and injured him fatally. He fell down in a pool of
blood on the landing of the fourth floor.
PW1 apprehended that he may be assaulted and injured.
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.
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.
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.
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.
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 :
Incised wound on back of head, 4 cm x 1.0 cm. x muscle deep. On right side of
midline in pareieto- occipital region
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.
Incised wound on right thumb palmar aspect. Vertical wound 1.5 cm x 0/5 cm.
Scratch on right occipital bone outer table in base of injury no.1 with
contusion in layer of scalp deep to the injury.
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.
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.
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.
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.
following injuries were found on the person of Sanjay Patil :
Incised wound in right perictal region 6 x 2 cm, bone deep
Incised wound on right elbow, joint opened.
Multiple abrasions on back and right scapula.
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.
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.
vital organ of the body was cut or damaged.
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 them shall have to be determined by
reference to the two assaults.
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.
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.
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 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.
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.
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
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.
also their conviction under Sections 143, 144 and 147 IPC must go.
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
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.