Bhadaji Bhirad & Ors Vs. State of Maharashtra  Insc 470 (13 November 2002)
C. Banerjee & Y.K. Sabharwal. Banerjee, J.
appellants herein all belong to the family of Bhirads :
Shrawan Bhadaji Bhirad, appellant no.1 is the father Kamal Shrawan, Arvind Shrawan
and Surendra Shrawan are the sons being appellant nos.2, 3 and 4 and Gajanan, Vasudeo
and Ambadas are the nephews. Ambadas, however, has expired during the pendency
of the matter before the High Court. The Additional Sessions Judge, Akola, on
basis of the evidence available on record recorded the finding of conviction
against the appellants for offences under Sections 147, 148 and 307 read with
Section 149 of the Indian Penal Code for having formed an unlawful assembly on
29th June, 1985 at about 8.00 a.m. and assaulted Ganesh, P.W. 1 in a locality
known as Shivaji Nagar of Akola with the aid of swords.
adverting to the rival contentions, a brief note to the prosecution case ought
to be adverted to at this juncture, and the same runs as below :
Bhirad accused no.1 and his nephews reside in Shivaji Nagar locality, so also Ganesh
Dhage resides in the same locality in a small galli. For this locality are
provided public latrines circumscribed with a compound wall with entrances on
the east and on the south. On the eventful day in the morning when Ganesh Dhage
was proceeding to the latrines to ease off, a Fiat car bearing No. MZQ 581
owned by Shrawan Bhirad came from his back side and dashed him whereby he was
tossed and fell to the ground. Getting on his feet when he however, looked
backwards he has stated to have seen accused nos.1 to 7 and deceased Anil Bhirad
getting out of the car armed with swords. Sensing the danger, he rushed through
the eastern gate of the latrine premises and went inside just to get out of the
same through the southern gate. When however near the gate inside the premises,
he slipped his feet due to a ditch with mud and fell to the ground and was
caught by the said persons, who happened to be chasing him. It is at that
juncture, they assaulted Ganesh Dhage with swords all over his body making him
suffer numerous incised wounds.
the assault, the assailants-accused nos.1 to 7 and deceased Anil rushed back
from the eastern gate and got into the car and went away. The prosecution case
further depicts that the accused persons proceeded towards the farm house owned
by accused no.1 and situated on the road to village Loni. There was already
stationed a Jeep brought by accused nos.1 and 2 from Wamanrao Pundlikrao Patil,
resident of Village Bhaurad (PW.5).
assailants got into the said Jeep and asked the driver Khaja Aminoddin to drive
it towards Balapur side guiding him to take the Jeep via Paras, Akot, Daryapur,
Amravati, Chadur Railway and further to Wardha, and reached Nagpur, at about
4.30 to 5.00 p.m.
they asked the driver to take the Jeep back to Akola and Aminoddin brought it to Akola, at about 10.00 p.m. at
the residence of the owner of the Jeep. At Akola, after the assault in the meantime the brother of Ganesh Dhage i.e. Keshao
Dhage and one Venubai got Ganesh Dhage into a rickshaw and took him to the Main
Hospital Akola. The incident was also seen by another brother of Ganesh Dhage
i.e. Kishore Dhage (P.W.9). Seeing that Ganesh Dhage was being attended to by
his brother Keshao Dhage, he rushed to City Kotwali Police Station Akola and
lodged complaint at 8.10
a.m. Many people
including the eye-witnesses stated to have witnessed the incident.
Dhage was admitted in the hospital and attended by one Dr. Bhagwat, who found
the following injuries on his person:
Right forearm multiple incised wounds which were bone deep. It has underlying
multiple communicated fractures of radius and ulna. The soft tissue injuries
were extending upto middle 3rd of arm.
Incised wound on right knee anteriorly and laterally, 9" x 2" joint
cavity deep, upper articular surface of tibia was chopped out anteriorly.
Incised wound on right thigh laterally and upper third 8" x 2" muscle
of heel and on right side. The avulsion of calcaneal bone piece laterally
6" x 4".
Incised wound in the 2nd web space cutting metatarsal and tarsal. The toes
medially were hanging by a skin tag dorsally 4" length.
Left upper extremity. Zig-zag incised wound extending from the middle 3rd of
arm posteriorly upto dorsum of the hand. It has multiple incised wounds
extending all over the extremity. Loss of little finger. It has multiple
Multiple incised wounds on the scalp about 15 in number of varied dimensions
and were bone deep. Every wound has underlying outer table fractures of skull
Multiple incised wounds all over body of subcutaneous deep nature.
be it noted that the opinion of Dr. Bhagwat has been that the injuries could be
caused by hard and sharp object like sword.
be it noted that Ganesh Dhage was confined in the hospital for about three
months and during which period, his right hand was amputated and left hand
elbow joint and right knee suffered from very severe stiffness, which happens
to be permanent in nature and the learned Sessions Judge held the same to be
the proximate cause or direct result of the injury sustained by him, since no
other extraneous factors were intervening. Needless to record that the
observations of the learned Sessions Judge as regards the physical condition of
Ganesh Dhage, have been in consonance with the opinion expressed by Dr. Bhagwat,
which stands uncontradicted and is not under challenge in any way. That there
have been severe injuries sustained by Ganesh at no point of time stand
disputed by the defence and the case made out by the prosecution stands out to
be wrong implication by reason of political enmity. Another factual element
that needs to be addressed at this juncture is in regard to the death of Anil,
being another accused person during the course of trial - and who happens to be
the son of appellant no.1. The learned Sessions Judge had the advantage of
having Ganesh examined in Court as PW1, apart from four other witnesses said to
be the eye-witnesses, namely PW.3, PW.7, PW.8 and PW.9.
proceeding with the matter further, the doctor's evidence ought to be noted
since the identification of the accused persons by the injured seems to have
some relevance, as contended by Mr. Jethmalani. The injuries suffered by the
victim as noticed above lead the doctor to opine "that but for the team of
surgeons and necessary medical help such as blood transfusion etc. the injuries
sustained by Ganesh Dhage were sufficient in the ordinary course to cause his
death. Ganesh Dhage was confined in the hospital for three months, during which
period he was unable to attend to his personal care. During the
cross-examination on behalf of the accused, only one question was put and it
was about Ganesh Dhage telling the doctor about his having been assaulted by
some persons. The doctor has stated that the injured had not given the names of
the assailants and that he was capable of talking when the doctor examined
him." It is on this score of identification that Mr. Jethmalani has been
rather emphatic that involvement alleged against the appellants has thus no
basis and is speculation only as such no reliance ought to be placed thereon
admittedly an impressive submission but let us see as to how the High Court
dealt with the issue. The High Court stated:
from the inquiry certificate at Exh.128, it appears that the victim had
received multiple injuries all over the body and some of them were on vital
parts. Immediately he was carried from the spot to the District Hospital. Dr. Bhagwat attended him. Even if it is proved that he
could not disclose the names of the assailants to Dr. Bhagwat, it could not
lead to an inference that at that stage he was not aware of the accused
persons. It is pertinent to note that the victim was severely injured. His
agony could be imagined and he was in a shock and strain, in that mental set up
his immediately not disclosing to Dr. Bhagwat the names of the assailants was
quite natural and more probable in a condition in which the victim was placed.
We therefore, do not agree with the submission of Mrs. Sirpurkar that the
victim was not aware of the names of the assailant.
more his testimony implicating the accused appellants in the incident of
assault is supported by Exh. 108 which is the oral report lodged by PW 9 Kishore
Dhage wherein again these persons are referred to as the assailants. Taking
these aspects into consideration, we are unable in being convinced by Mrs. Sirpurkar
that the names of the accused persons were mentioned by way of speculation
because of old enmity. Even otherwise the victim because of rivalry would not
allow the real assailants whom he had seen to go scot free only with a design
to settle a score with these accused persons.
matter of fact identification of the accused persons and prosecutor's utter
failure on that score has been the principle attack against the judgment. We
however do not feel it inclined to accept such a submission. The High Court has
dealt with the matter in a manner proper and the last few lines of the quote
above cannot but have our concurrence as well. In any event disclosure of names
in the dying declaration on 29th June, 1985
seems to be of a definite significance. But before anything further be it noted
that though such a declaration was taken down, but by reason of the efforts of
the doctors attending, the victim survived and as such the statement made need
not stand the strictest scrutiny of dying declaration but at best a statement
under Section 164 of the Code and the statement runs as below:
day at about 8 O'clock in the morning I was going to the
latrine. One Fiat car No.581 dashed against me from my back side as a result of
which I fell down on the ground. I got up from the ground and ran away.
Six-seven persons armed with swords got down from the vehicle from the back
side and chased me. I fell down while running. They started to assault me by
means of swords. The persons viz. Shrawan Bhirad, Kamal Bhirad, Anil Bhirad, Arvind
Bhirad, Surendra Bhirad, Wasudeo Bhirad and Vidyadhar Bhirad were amongst the
assaulters. They were assaulting me by means of the swords. I sustained more
injuries by means of the swords held by Wasudeo Bhirad, Ambadas Bhirad and Surendra
Bhirad. They assaulted me in this way by means of swords and went away. When my
friends came to know this incident they came to the spot of occurrence and
brought me to the hospital.
aforesaid persons of the Bhirad family were working against me in the election
of Nagar Parishad." This piece of evidence however stands corroborated by
the eyewitness account of PWs 3,7,8 and 9.
this state of the facts we do not think it fit to lend concurrence to the
submissions in support of the appeal. There is on record over-whelming evidence
in support of the prosecutor and we do not see any reason to interfere with the
concurrent findings as recorded by the learned Sessions Judge as also by the
some criticism has been levelled against the judgment impugned, as being a
rather slip-shod way of dealing with such a serious matter concerning the
liability of so many persons, while it is true that the judgment could have
been slightly more elaborate but that does not itself vitiate the order of
concurrence. There is no prejudice to the accused persons warranting an order
that view of the matter, this appeal fails and is dismissed.
bail bonds stand cancelled. The appellants ought to be put back to prisons to
serve out the remaining period of the sentence.