judgement death sentence to bus driver- rampage killing pune
DESCRIPTION
Santosh Mane, a bus driver in Pune who stole a public bus and went on a rampage killing nine people and injuring nearly 30 others in the year 2012TRANSCRIPT
1 S.C.275/2012
Received on : 20.04.2012Registered on : 20.04.2012Decided on : 08.04.2013Duration : 11M.18 Ds.Exh.
IN THE COURT OF ADDITIONAL SESSIONS JUDGE PUNE AT PUNE.
(Presided over by Shri V.K.Shewale, Addl.Session Judge,Pune)
SESSIONS CASE NO.275/2012
State of Maharashtra. )(Through Swargate police station) ) ...Complainant.
Vs.
Santosh Maruti Mane )Age 40 years,Occ. Service , ) . ..Accused.R/o At Post Kavthale Tal. Uttar Solapur, )Dist.Solapur. )
...Appearances :
Smt.Ujwala Pawar, Public Prosecutor for prosecution.Shri Mane, Advocate for accused. ...
:JUDGMENT:(Delivered on 8th day of April,2013)
The accused Santosh Maruti Mane stood charged u/ss
381,302,307,324,427 of the Indian Penal Code (hereinafter referred to
as the I.P.C.) In addition,he stood charged u/ss 3(2) of the Prevention
of Damage to Public Property Act,1984 under the chargesheet
instituted by Swargate police station, Pune.
2 S.C.275/2012
2] The briefly stated case is as follows:
The accused is serving as driver in Maharashtra State Road
Transport Corporation, since 8.8.1999 and has been in service with the
Swargate S.T.Depot Pune.
3] The accused has discharged duty as the bus driver in
Swargate S.T. Depot regularly on 23rd and 24th Jan.2012. He has
discharged night out duty on S.T.Bus No.MH14BT0717 whereon,
Vijayanand Gulve(P.W.2) had served as bus conductor. On the above
said date, on each day, about 10 to 11 hours bus was plied by the
accused from Swargate to Gangapur and vice a versa.
4] That it is the duty of Asstt.Traffic Controllers and Traffic
Controller of the said S.T.Depot to allot duties to all bus conductors,
drivers in advance. Pursuance thereto, on 24.1.2012, Asstt.Traffic
Controller Rajendra Gaikwad(P.W.3) had assigned night out duty to
the accused to move the bus from Swargate to Waduste. Then, on
25.01.2012, when Shashikant Damkale, P.W.23 Asstt.Traffic Controller
of Swargate Depot, had discharged duty from 11 a.m.of 24.1.12 to 8
a.m.of 25.1.12 of allocation of duties to the staff of S.T.buses, was
present in the allocation room. Then, on 25.1.12, at about 7.30 to 7.45
a.m., the accused had been in allocation room, requested the said
witness to change his night out duty into single duty. However, the
said witness has shown his inability to do so,as single duty was not
available. Then, the room was calmly and quietly left by the accused.
5] Further, it is the prosecution case that on the said date,
3 S.C.275/2012
S.T.bus No.MH14BT1532 plied by P.W.21Santosh Hendre, who is the
driver of S.T.Depot Satara, had moved the non stop and non conductor
bus No.MH14BT1532 to Swargate, Pune . He had parked the said
bus in front of pan stall situate in the premises of S.T. depot,Swargate.
Thereafter, had been in lavatory to answer nature's call and
meanwhile, after listening commotion of passengers from the Outgate
of the said bus depot, noticed , somebody had moved his above said
S.T.bus dishonestly out of the Outgate of the said S.T. depot. Hence,
he had rushed to chase the bus but in vain. Then immediately, he
himself, other S.T. controllers and Asstt.Traffic Controllers noticed the
bus setting out from outgate, had given dash to pedestrians, fruit
carts, auto rickshaws. Then, again the said bus was moved by wrong
direction and came from Ingate and set out from Outgate by giving
dash to the pedestrians, passengers and vehicles coming in the way.
6] Thus, due to the said incident, hue and cry and commotion
was raised by the concerned. Consequently, Ajit Limaye, the informant
P.W.17, Vijay Diwate P.W.24, the Depot Manager, along with others
rushed in the S.T.Depot and on the way, where from, bus was moved
by the accused.
7] Further, it is the case that the bus was chased by traffic
police on duty, by the informant Ajit Limaye, by Shashikant Damakale
P.W.23, by giving call to the accused by name to stop the bus, as it was
killing innocent persons by indiscriminate driving of the bus. However,
the accused did not pay heed thereto and moved the bus as per his
whim and capricion.
4 S.C.275/2012
8] Further, it is the case that said bus was also chased by
Deepak KakadePolice Naik of Lashkar police station(P.W.15), by Amar
Santosh Chavan, P.M.T. bus driver(P.W.18), by Bapu LonkarPolice
constable, Shivaji TapareHead constable(P.W.19), who was driver on
the jeep No.MH12AH8890 of then Asstt.Commissioner of Police Shri
Yewale of Swargate division. The said persons have urged the accused
to stop the bus but it was not stopped.
9] Further, it is the prosecution case that the bus as set out
from Outgate of Swargate S.T.Depot, proceeded towards
Shankarsheth road, then, 7 Loves chowk, Golibar Maidan, Narsing
chowk, Nepiar road, Mahamma Devde chowk, Talera bunglow chowk,
Lashkar police station square, Eastern road, Khanya Maruti chowk,
then old motor stand, then Kasewadi chowk by giving dash to many
vehicles , bikers, and caused death of nine innocent persons. He has
caused grievous and simple injuries to 37 persons.
10] Further, it is the prosecution case that when by the said
route, bus was plied by the accused indiscriminately, the first star
witness Amar Santosh Chavan(P.W.18) by taking advantage of bus
was slowed down when it has given dash to other vehicles, had
entered in the cabin of the driver of the bus, tried to apply hand brake
but the accused had dealt blow on the chest of the said witness,
resultant upon, he fell down on road near the wheel of the bus,
thereby, his life was endangered by the accused. Thereafter, when the
bus came near Laxminagar chowk, two PMPML buses were there, one
was making movement and the other was to move, the accused
skillfully drove the bus by moving his bus around the said buses
5 S.C.275/2012
without giving dash to them and thereafter, it has dashed to barricades
and other vehicles and attempted to reverse it and accordingly,
reversed. In the said course, the second star witness Bapu Lonkar
(P.W.20) by taking advantage of slow motion of the bus , by its ladder
had been on the roof of the said bus and from window no.8, effected
entry in the bus, then, in the cabin of the driverthe accused, informed
him that by driving the bus indiscriminately, he had taken lives of
many persons, many persons are impaired by causing injuries, hence,
he was informed,why he is committing murders of innocent persons,
on which, he got annoyed and assaulted the said witness, then he tried
to move the steering to stop the bus but he was assaulted by making
attempt to pull down from moving bus so as to endanger his life.
Then,the accused retorted that he may kill many persons, cause
injuries to many more but this witness has no business to say anything
thereto. Thus, due to the said incident, the accused has lost control
over it,hence,it has dashed to the road divider, barricades and then, it
was stopped.
11] Further, it is the prosecution case that the said bus was
stopped at Laxminagar chowk, in front of Samadhan Bhel shop. Then,
the public whose fury was invited by the accused by taking lives of
many more persons and by causing injuries to others, had assaulted
the accused . Therefore, Bapu Lonkar (P.W.20) with the help of head
constable Shivaji Tapare, A.P.I. Kundlik Kaigude, tried to save the
accused from public assault. Then, he was moved in six seater
rickshaw, it was also attacked by the public, by breaking its windscreen
glasses. Then, he was moved in other van to the police station.
6 S.C.275/2012
12] Thus, after the above said episode, the P.W.17Ajit Limaye ,
the traffic controller of Swargate S.T. Depot had been in Swargate
policed station, lodged the report vide Ex.109. On the basis thereof,
C.R.no.29/12 u/ss 381,302,307,326,324,427 of the I.P.C. and under
sec.7 of the Prevention of Damage to Public Property Act,1984, was
registered.
13] As the P.W.17 had set the criminal law in motion, the
Investigating Officer Rajendrasiha Mohite, then A.C.P. (P.W.39) had
given instructions to his subordinates in carrying injured in respective
hospitals, in preparing panchanamas of crime scene of all the spots,
wherein, the above said massacre did occur at the instance of accused
and preparing inquest panchanamas. Accordingly, injured were
referred to respective hospitals, they were treated by doctors. Then,
the inquest panchanamas of Ex.17 to 25(admitted) were prepared .
Thereafter, he had collected autopsy reports of Ex.41 to 49, injury
reports of Ex.50 to 65.
14] Then, the statements of all the injured and eye witnesses
were recorded by the Investigating Officer.
15] The Investigating Officer had arrested the accused,
prepared arrest panchanama Ex.138 in presence of P.W.30 Dilip
Agarwal and other panch. In his search, one cell phone with duel
SIMs, of Airtel and Vodaphone, one wallet containing cash amount of
Rs.100/, his driving licence,batch, photo of himself and ladies, were
found which were seized along with his clothes.
7 S.C.275/2012
16] As the accused was assaulted by the public out of public
fury, the Investigating Officer P.W.39 found it desirable to call team of
doctors viz.Dr.Rahul Telang, E.N.T. SpecialistP.W.27, Dr.Kirankumar
Jadhav, Surgeon P.W.28, Dr.Vishal Patil, P.W.29 and one psychiatrist
Mrs.Bahale. They have examined the accused,who had narrated
history of road traffic accident by disclosing his name, occupation,
hence, his injuries were treated by the said doctors. The psychiatrist of
Sassoon hospital has expressed opinion in referring the accused for
observation in the Mental Health hospital of Yerawada and
accordingly, he was sent in the said hospital . Then, the team of
psychiatrists P.W.31Dr.Dongalikar, Dr.Smt.M.R.Bahale, Dr.Himanshu
Pendse, Dr.S.B.Gadekar had observed the accused about 10 days
w.e.f.28.1.12 to 6.2.12 but the accused was found sound, sane, having
no abnormality or symptoms of insanity, at the time of his examination
and at the time of commission of the crime. Hence, the accused on due
investigation, came to be chargesheeted in J.M.F.C. Court No.8, Pune
on 20.4.2012.
17] The J.M.F.C. Court no.8, Pune by the order dt.27.4.2012
did commit the case to the Sessions Court, Pune for trial according to
law. Pursuance thereto, the case was allotted to this court for trial.
18] The prosecution had opened the case. Hence,after listening
the submissions of prosecution and defence, charge at Ex.5 came tobe
framed on 30.5.2012, which was read over and explained to accused
in vernacular, to which, he pleaded not guilty and claimed to be tried.
He came with the defence that he has been falsely involved in this
false case.
8 S.C.275/2012
19] Moreover, by examining the defence witness Dr.Dilip Burte,
and Pharmacist Shivanand SheteD.W.2, defence u/s 84 of I.P.C. came
tobe set up for the first time. Hence, on this premise, accused has
prayed for clean acquittal, on the plea that his case squarely falls
under sec.84 of I.P.C.
20] Thus, on the above case, the following points arise for my
determination and I record my findings thereon as under for the
following reasons:
Points Findings
1] Is it proved by the prosecution that on Yes. 25.1.12 in between 8.05 a.m. to 8.45 a.m. from Swargae S.T. Depot situate within the limits of Swargate police station, accused being the bus driver with Maharashtra State Road Transport Corporation and thereby public servant in the capacity of bus driver of Swargate bus depot, committed theft of S.T. bus No.MH14BT1532 belonged to Satara S.T. bus depot out of the possession of regular driver Shri Hendre and without his consent,dishonestly moved the said bus from the parking lot of Swargate S.T.depot and used it in causing death of 9 persons and causing injuries to 37 persons and thereby did commit the offence of theft thereof punishable u/s 381 of I.P.C.?
2] Whether death of Puja Bhaurao Patil, Ram Yes. Lalit Shukla, Shubhangi Suryakant More, Pinkesh Lalchand Khandelwal, Ankush Baban Tikone, Akshay Pramod Pise , Milind Purushottam Gaikwad, Shweta Dhaval
9 S.C.275/2012
Oswal and Changdev Pandharinath Bhandwalkar, has been caused due to homicidal injuries out of the driving of S.T.bus no.MH14BT1532, with intention of causing death or with the intention of causing such bodily injuries as the accused knew it likely to cause the death of the person,to whom,the harm was caused or it has been done with the intention of causing bodily injury to such persons or the said act was done knowing that it is so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death and committed such act without any excuse for incurring the risk of causing deaths of the above said persons?
3] Is it proved by the prosecution that on Yes. the same date,time and place, and more particularly, on Swargate outgate, Shankarsheth road, in front of Janki hall, Golibar Maidan chowk, SM Joshi high school Pune camp, in front of bunglow no.20,situate at Nepiar road, Camp, at Dr.Koyaji road,Camp, East Street, Indira Gandhi chowk,Camp in front of Corporation bank, Camp, 7 Loves chowk, Mitramandal chowk, Swargate and in front of Samadhan Bhel and Bharat Cycle Mart, Sarasbaug and southern corner of Pune, on public road, the accused by driving the S.T. Bus No.MH14BT1532 intentionally or knowingly that the act of driving bus was so imminently dangerous, that it must in all the probability, cause death or such bodily injury to the pedestrians , bikers, auto drivers and drivers of other vehicles, as is likely to cause their death and committed such act, without any excuse for incurring the risk of causing death of above said persons and thereby did commit an offence of murder punishable u/s 302 of I.P.C.?
10 S.C.275/2012
4] Is it proved by the prosecution that on the Yes. same date,time and place, by driving the above said bus in the above said manner, with such intention or knowledge, the accused had given dash of the said S.T. bus to Rohini Ravindra Jadhav, Akansha Sanjay Jain, Ritu Sanjay Dodeja, Dayaram Shankar More, Parmeshwar Tolnure, Deepak Sonu Modak, Ibrahim Shaikh, Godabai Kisan Lugade, Madhukar Randive, Jainur Abdul Ali Shaikh, Affiya Sardar Sayyad, Prafulla Rammohan Nair, Tanaji Kale, Nandkumar Waikar, Aditi Waikar, Chandrajeet Aher, Babu Basumiya Shaikh, Mahesh Gadhawe, Dattatraya Mohite, Devendra Patil, Pirsing Hajare, Krushik Khandelwal, Surgerao Mastud, Dattatraya Mahangre, Bhaurao Patil, Shaikh Irshad Ali, Versha Damale, Pradeep Shankar More, Suresh Vasant Powar, Ganesh Laxman Galande , Abhicharan Mishra, Ajay Shukla, Dashrath Bhise, Ganesh Bhise, Dhanaji Awate, Aditi Kamble and Sameer Adril Furnandis, with such intention or knowledge that act was so imminently dangerous that it must in all probability, cause death or such bodily injury, as is likely to cause death and committed such act without any excuse for incurring the risk of causing injuries to the above said persons and under such circumstances that by the said act, if the accused would have caused the death of the said witnesses, would have been guilty of their murder and with such intention or knowledge caused injuries to the said witnesses and thereby did commit an offence punishable u/s 307 of I.P.C.?
5] Is it proved by the prosecution that on the Yes. same date,time and place, the above said stolen bus was moved by the accused intentionally or with knowledge that he is moving the bus so imminently dangerous that it must in all
11 S.C.275/2012
probability, cause bodily injury to the persons passing from the spots and with such knowledge, by giving dash to Rohini Jadhav, Akanksha Jain, Ritu Sanjay Dodeja, Pardeshwar Tolnure, Ibrahim Shaikh ,Madhukar Randive, Jainnur Ali Shaikh, Prafulla Nair, Tanaji Kale, Nandkumar Waikar, Aditi Waikar, Babu Basumiya Shaikh, Devendra Patil , Rushik Khandelwal, Dattatraya Mahangare, Shaikh Irshad Ali, Pradeep More, Suresh Pawar, Ganesh Galande, Abhicharan Mishra, Ajay Shukla, Dashrath Bhise, Ganesh Bhise, Dhanaji Awate, Aditi Kamble, Sameer Furnandis, voluntarily caused them injuries in the above said manner by the above said bus and thereby committed an offence punishable u/s 324 of I.P.C.?
6] Is it proved by the prosecution that on the Yes. same date, time and place,by driving the above said stolen bus in the above said manner, on the above said route and places, the accused caused wrongful loss and damage to the 2wheeler, 3wheeler and 4wheeler vehicles, to the tune of Rs.7,28,000/and thereby did commit an offence of mischief punishable u/s 427 of I.P.C.?
7] Is it proved by the prosecution that on the Yes. same date,time and place, the accused by driving the above said bus in the above said manner, at the above said places, committed mischief by causing damage to the public property viz. to the road divider, to the barricades, to the railing and to the PMPL Bus no.MH12EQ5133, and S.T.Bus No.MH14BT1532 to the tune of Rs.50000/ and Rs.10,00,000/respectively and thereby did commit an offence punishable u/s 3(2) of the Prevention of Damage to Public Property Act,1984?
8] Whether the case falls within the ambit of No. sec.84 of I.P.C.?
12 S.C.275/2012
9] What order? Accused is convicted as per the final order.
REASONS
21] In order to bring home the guilt of accused on all the
heads of charges, the prosecution had examined following 39
witnesses:
1] P.W.1 Suryakant More, who lost his wife Shubhangi in the incident
near Swargate S.T. depot has deposed at Ex.81.
2] P.W.2 Vijayanmand Gulve, the conductor on the S.T. bus No.MH
14BT0717 plied by the accused on 23rd and 24th Jan.2012 from
Swargate to Gangapur and vice a versa, as a gentleman and nice
driver without inviting any problem by enjoying break fast, lunch,
dinner and sound sleep that too,in S.T. itself at Gangapur and safely
moved the bus at Swargate bus stand on 24.1.12 at 6.30 p.m. has
deposed at Ex.82.
3] P.W.3 Rajendra Gaikwad, the Asstt.Traffic Inspector of Swargate
S.T. depot, who had allotted night out duty to the accused on 24.1.12
to ply the bus from Swargate to Waduste and back, without bickering
of the accused at that time, of assignment of said duty,has deposed at
Ex.83.
4] P.W.4Balasaheb Sarode, other Asstt.Traffic Inspector of S.T.Depot
Swargate, who has allotted duty and forwarded leave application of
the accused of the leave enjoyed in between 19.2.2010 to 19.3.2010
without supplying medical certificate along with the application,which
was supplied on 19.3.10 about he had enjoyed the said leave as he
13 S.C.275/2012
had suffered from 'viral hepatitis' and has produced true copy of leave
application with medical certificate Ex.85, has deposed at Ex.84.
5] P.W.5 Rohini Jadhav, the injured whose Activa scooter was dashed
and grievous injuries were caused to her and she was indoor patient in
Nobel hospital of Hadapsar about 10 to 15 days, has deposed at Ex.86.
6] P.W.6 Ms.Aditi Kamble,the other injured whose Scooty was dashed
by the S.T. bus plied by the accused and thereby, injuries came tobe
caused to her, has deposed at Ex.93. On the Scooty of said witness
deceased Puja was pillion rider,who died in the incident.
7] P.W.7 Mrs.Versha Dhamale, eye witness and injured whose Piyago
share rickshaw was dashed by bus of the accused and wherein,she had
sustained injuries, has deposed at Ex.94.
8] P.W.8 Tanaji Kale, the injured auto driver, whose auto rickshaw was
dashed by the above said S.T.bus driven by the accused at Jedhe
chowk and thereby, grievous injuries were caused to the said witness
and passengers, has deposed at Ex.95.
9] P.W.9 Bhaurao Patil, unfortunate father of Puja Patil, who met with
an accident and lost her life due to driving of the bus driven by the
accused,has deposed at Ex.96.
10] P.W.10 Wasim Abdul Gani Bahadur,the other injured who has
witnessed one bike along with rider thereof was dragged at the
Mitramandal chowk, Patil Plaza , has deposed at Ex.98.
11] P.W.11 Nishant Pawaskar, the eye witness of the incident in respect
of bike of Akshay Pise was dragged about 100 ft. by the bus driven by
the accused and thereby death of Akshay Pise did take place, has
deposed at Ex.99.
12] P.W.12 Mahesh Gadhawe, auto driver, who had witnessed the
incident,occurred by means of the bus driven by the accused at Out
14 S.C.275/2012
gate of Swargate S.T.depot and who had sustained injury as dash was
given to his auto rickshaw and other rickshaw, has deposed at Ex.100.
13] P.W.13 Dattatraya Mahangre, eye witness of the incident occurred
at Mahatma Gandhi bus stand,Camp, when he himself,with his wife
and minor daughter, by riding on bike were proceeding towards
Arunkumar Vaidya Stadium for morning exercise, at that time, the bus
driven by the accused dashed to one I10 car and then,to the bike of
this person and caused the injuries to him,to his wife and minor
daughter, has deposed at Ex.101.
14] P.W.14 Dattatraya Mohite, other injured eye witness,whose auto
rickshaw No.MH12AR640 was dashed at outgate of Swrgate S.T.
depot by the bus driven by the accused and thereby grievous injuries
were caused to the said witness,has deposed at Ex.102.
15] P.W.15 Police Naik Deepak Kakade, attached to Lashkar police
station who was Bit Martial along with Police Naik Sandeep Sutar on
the bike and they were discharging duty in the morning of fateful day
of incident, at that time,said witness was armed with 9 mm carbine
with 35 rounds and walky talky, fired initially 4 rounds on tyres of ST
bus so as to stop it, 2 rounds on windscreen glass of the ST bus and
again 4 rounds on the bus so as to stop it, but could not succeed in the
mission,has deposed at Ex.103.
16] P.W.16 Devendra Patil , injured auto driver has deposed at Ex.104.
17] P.W.17 Ajit Limaye, the traffic controller of S.T. bus depot
Swargate,who set the criminal law in motion by lodging the report at
Ex.109 has deposed at Ex.108.
18] P.W.18 Amar Chavan, the first star witness who was P.M.T. driver
and was proceeding with his colleagues Shri Chopade,Nanajkar and
Rokadewar from Swargate S.T. depot after watching the route of PMPL
15 S.C.275/2012
buses,as a part of their training,noticed the S.T. bus driven by the
accused has given dash to the pedestrians,fruit carts,autos,bikes and 4
wheeler vehicles and when it dashed to the barricades,its speed was
reduced,hence,he entered in the driver's cabin,tried to apply hand
brake so as to stop the bus but he was assaulted by the accused and
hence, he fell down from the moving bus endangering his life, has
deposed at Ex.111.
19] P.W.19 Shivaji Tapare, Head constable, who was driver on A.C.P.
Yewale's Sumo Jeep No.MH12AH8890 and has discharged duty on
the date of incident along with one Tathe, wireless operator, as
wireless set was installed in the said vehicle,received message about
massacre occurred due to driving the bus No.MH14BT1532 driven
by the accused, hence, made an attempt to chase the bus to stop it at
all the places and noticed the other star witness Bapu Lonkar P.W.20
had climbed on the roof of the bus by using its ladder and entered in
the driver's cabin, tried to move the bus by steering, then, accused had
asaulted Lonkar by making attempt to push him from the moving bus,
endangering his life and then, the bus has dashed to the road divider,
consequently, its movement was stopped and thereafter, accused made
an attempt to flee from the spot, has deposed at Ex.112.
20] P.W.20 Bapu Lonkar, the second most star witness of the case who
without caring his life, had entered in the bus by ladder and window
in the driver's cabin ,instructed the accused that he has killed many
more persons,caused grievous injuries to many more persons without
there being fault, hence, to immediately stop the bus,still then,accused
did not stop the bus but retorted to the said witness that he has no
business to give instructions in not causing death of many persons and
injuries to them, by saying that he may kill many persons but witness
16 S.C.275/2012
has no business to say him thereto and lastly the said witness has
apprehended the accused by causing the bus to stop, has deposed at
Ex.115.
21] P.W.21 Santosh Hendre, the regular bus driver of non stop and non
conduct S.T. bus No.MH14BT1532 belonged to S.T. depot Satara,
which was parked by him on 25.1.12 at 8 a.m.in front of the pan
stall,situate in the premises of Swargate S.T. depot by locking it, which
was stolen by the accused by using duplicate key and used the said bus
in committing above said massacre of 9 persons ,causing injuries to
many more persons,has deposed at Ex.116.
22] P.W.22 Surgerao Mastud, the eye and injured witness,who had
sustained grievous injuries to his wrist and fracture to right thigh,due
to dash given to his bike by the above said bus at Shankarsheth road,
and thereby he was compelled to hospitalize for 15 days,has deposed
at Ex.117.
23] P.W.23 Shashikant Damakale, Asstt.Traffic Controller of S.T. depot
Swargate, who had made an attempt to stop the bus by giving call to
the accused by his name being his senior officer but accused did not
pay heed to his instructions. Moreover,to whom,accused in between 7
to 7.30 a.m.in allocation room , had made request to change his night
out duty to single duty but it was not feasible due to paucity of
drivers ,hence, duty was not changed and soon thereafter, the accused
had committed theft of the above said S.T. bus, has deposed at Ex.119.
24] P.W.24 Vijay Diwate, the Depot Manager of Swargate Depot who
supervise work of S.T. workshop,store management, Asstt.Traffic
Controllers, has deposed at Ex.120. He has produced service record of
the accused vide Ex.121,122 and 122/1 to 15 to prove the entire
service record of accused,leave enjoyed by him,penalty saddled to him
17 S.C.275/2012
due to rash and negligent driving prior to the incident ,has deposed at
Ex.120.
25] P.W.25 Govind Chavan, police constable attached to Swargate
police station and when attended duty on peter mobile within the
limits of Swargate along with P.S.I. Bajirao Patil and police Naik
Khutwad on the date of incident, received wireless message about the
massacre committed by accused by driving the S.T.Bus, hence,
followed the bus at Mitramandal chowk,at Nilayam bridge and noticed
the heroic act of Bapu Lonkar P.W. 20 in effecting entry in the bus, and
on crucial point that after accused was apprehended by Bapu
Lonkar,he was assaulted by public, he has saved the life of accused
from public assault by moving him in six seater auto rickshaw but the
public caused damage to that rickshaw, hence, by other van, has
deposed at Ex.125.
26] P.W.26 Dr.Ajay Taware,attached to B.J. Medical college and
Sassoon hospital who did conduct autopsy on dead body of Changdev
Bhandwalkar on 14.2.12 as he died out of the injuries sustained at the
hands of accused in driving the bus in the above said manner and had
issued the autopsy report vide Ex.48(admitted), has deposed at
Ex.129.
27] P.W.27 Dr.Rahul Telang,(E.N.T.) who had initially provided medical
treatment to accused on 25.1.12 in A.C.P. office Crime branch Pune
and issued report Ex.132 ,has deposed at Ex.130.
28] P.W.28 General Surgeon Dr.Kirankumar Jadhav,who had provided
medical treatment to the accused in A.C.P. office Crime branch,Pune at
about 1.30 to 2 p.m. on the fateful date of incident ,and had issued
injury report vide Ex.134, has deposed at Ex.133.
29] P.W.29 Dr.Vishal Patil(Orthopedic),who had provided medical
18 S.C.275/2012
treatment to the accused and on inquiry, accused did not make any
grievance about having had suffered from convulsion , loss of memory,
ENT bleeding and his general condition was found normal and
accordingly, had issued the injury report vide Ex.136, has deposed at
Ex.135.
30] P.W.30 Dilip Agarwal, panch witness on the arrest and personal
search panchanama of the accused, wherein, cell phone having duel
SIM of Airtel and Vodaphone found with the accused along with his
batch,driving licence,cash of Rs.100/his photo,photo of one woman
and his clothes,seized under panchanama Ex.138 ,has deposed at
Ex.137.
31] P.W.31 Dr.Bhalchandra Donglikar, Superintendent of Mental
Health hospital, Yerawada, Pune who himself along with team of
Dr.Mrs.M.R.Bahale, Dr.S.B.Gadekar, Dr.H.U.Pendse, had observed
accused for 10 days, from 28.1.12 to 6.2.12 and come to the
unimpeachable conclusion that at the time of 10 days observation,
accused was found in sound mind, he did not suffer from any
abnormality or insanity and accordingly, had issued the report vide
Ex.147, 148, has deposed at Ex.146.
32] P.W.32 Chetan More, the Nodal Officer in Airtel for Maharashtra
and Goa Zone,who has deposed that cell phone No.9766708633
belonged to the accused and it was in use from 14.1.08 till the date of
incident and had issued the C.D.R. report thereto, vide Ex.153 to 155,
has deposed at Ex.152.
33] P.W.33 Datta Angre, the other Nodal officer of Idea Cellular phone,
who has deposed that cell phone No.9623069573 belonged to the
accused and on the said cell phone, on 25.1.12, in the noon, phone
call was made from the cell phone No.9766708633 about 144 seconds
19 S.C.275/2012
and tower location was Shelgaon Tal.Barshi, Dist.Solapur, who has
produced the C.D.R. thereof, vide Ex.157 to 160,has deposed at
Ex.156.
34] P.W.34 P.I. Ramchandra Pathare who was attached to Swargate
police station, who had instructed P.S.I. Suryawanshi,in recording the
report lodged by P.W.17 Limaye and had carried the investigation of
the crime of the present case by delegating powers to P.I. Suryawanshi,
P.S.I.Patil, lady P.S.I. Babar, API Kadam, A.P.I. Koli in preparing crime
scene panchanamas of respective spots, pursuance thereto, they have
prepared the panchanamas. Then, they have conducted personal
search of the accused, arrested him and seized property found with
him, under panchanama, vide Ex.138, has deposed at Ex.162.
35] P.W.35 A.P.I. Kundlik Kaigude,who was attached to traffic division
of Swargate on the date of incident, has made an attempt to stop the
buses in order to avoid mishap. Then noticed the accused had moved
his bus around the two P.M.P.L. buses, being in sound state of mind,
Then, he has noticed P.W.20Lonkar had been on the roof of the bus
driven by the accused, he had given him instructions to sit down to
save his life from overhead electric wires, has deposed at Ex.164.
36] P.W.36 A.S.I. Vasant Suryawanshi, who had prepared crime scene
panchanama of Swargate vide Ex.27, had seized the clothes of the
deceased and 4 injured under panchanama Ex.86, deposited the said
property with muddemal clerk of Swargate police station, has deposed
at Ex.165.
37] P.W.37 A.P.I. Anil Koli who was attached to Swargate police station
who had carried the injured in Harjheevan hospital, where he noticed
fateful death of Milind Gaikwad, hence, prepared inquest
panchanamna of his body vide Ex.118, had sent the body for autopsy
20 S.C.275/2012
to Sassoon hospital and had submitted report Ex.176 to his superior
about the above said act, has deposed at Ex.175.
38] P.W.38 P.S.I. Ravindra Babar who was attached to Khadak police
station, who had attended the duty on the date of incident, admitted
some persons in Sahyadri hospital and more particularly, Shubhangi
More, the wife of P.W.1 who succumbed to the injuries, hence, he had
prepared the inquest panchanama of the body of Shubhangi,vide
Ex.19, sent the body to Sassoon hospital for autopsy, and had sent the
report thereto to his superior vide Ex.178, has deposed at Ex.177.
39] P.W.39 Investigating Officer A.C.P. Rejandra Mohite,who after due
investigation, and seized the offending bus No.MH14BT1532 under
panchanama Ex.179A, had instituted the chargesheet, has deposed at
Ex.179.
22] Thereafter, prosecution has closed the oral evidence.
23] The accused while making statement u/s 313 Cr.P.C., has
made statement that he was to examine himself on oath, but has not
examined himself on oath. However, in order to bring the case within
the ambit of sec.84 of I.P.C., he has examined defence witness
psychiatrist Dr.Dilip Burte of Solapur vide Ex.196. He has produced
the documentary evidence of Ex.197 to 199 viz.prescription, case file
and history sheet of the accused. The said witness has deposed that for
the first time, accused was examined by him on 19.2.2010 , at that
time, accused had suffered from disturbed sleep, less eating and
palpitation. He has also narrated history having had suspicion = ideas
of persecution, hear voices in ear, there was mood of sadness, with
suicidal idea at a times, hence, accordingly, tablets were prescribed to
21 S.C.275/2012
him and thereafter, the accused was instructed to have follow up
treatment but as per the bold statement made by the said defence
witness before the media after the incident, had admitted that after
19.2.2010, accused never turned in his hospital for treatment. D.W.2
the Pharmacist Shivanand Shete who hails from South Solpur from
whom, accused reported to have purchased tablets as prescribed by
D.W. 1 Dr.Burte, under the receipts of Ex.203 to 209 on respective
dates, has deposed at Ex.202.
24] In the evidence of D.W.1, the xerox copy of the case paper
of the accused of Ex.197 is produced vide Ex.211. The xerox copy of
original prescription card Ex.198 is produced vide Ex.210 . However,
the prescription given by the said doctor to the accused on 19.2.10
produced vide Ex.211 is silent about the said doctor having had
provided medical treatment to the accused on 22.2.10, 25.2.2010,
1.3.2010, 4.3.2010, 12.3.2010 and 22.4.2010.
25] The defence counsel vigilantly has caused the prosecution
to place reliance on the medical examination report of the accused by
the psychiatrists Dr.S.J.Mahamunj ,Dr.V.R.Bhailume, hence, he has
admitted the said medical examination report of the accused by the
said psychiatrists, are produced vide Ex.140,141 and 142. Then, the
defence evidence came tobe closed.
26] Point No.1:
In order to sustain the charge u/s 381 of I.P.C.., it is the
first and foremost duty of the prosecution to prove that S.T. bus
No.MH14BT1532 belonging to Satara S.T. depot was in possession of
22 S.C.275/2012
P.W.21 Santosh Hendre. On 25.01.2012, the said non stop and non
conductor bus was parked and locked within the premises of Swargate
S.T. depot at 8 a.m., soon thereafter, the said bus was dishonestly and
without consent, moved by the accused out of the possession of its
driver Hendre.
27] So far as theft of the said S.T. bus is concerned, there is no
dispute, indeed it belonged to S.T. depot Satara, on the fateful date of
incident, it was moved by the P.W.21 Hendre, it was parked by duly
locking in the premises of S.T. depot Swargate at 8.00 a.m. Thereafter,
said bus was moved by the accused from Swargate S.T. depot to
Shankarsheth road, 7 loves chowk, Narsing chowk, Nepiar road
Mahmma Devdi chowk, Solapur bazar chowk, Eastern road, Talera
bunglwo chowk, Lashkar police station chowk, eastern road chowk,
Khanya Maruti chowk, old S.T. stand, Kasewadi chowk, 7 Loves
chowk, Dias Plot chowk,Holga chowk, Mitramandal chowk, and
Mahalaxmi temple chowk, by committing death of nine persons and
causing grievous and simple injuries to 37 persons. All the injured who
fortunately survived,including P.W.5 to 10 , P.W.12 to 14, 16 and 22
along with informant Ajit Limaye, S.T. depot manager Shri Diwate,
other Astt.Traffic Inspectors and Controllers of S.T. buses, police head
constable Chavan, police constable Bapu Lonkar and many others have
witnessed the accused had plied the said bus indiscriminately at the
above said places. Hence, on the basis of this evidence,which has not
been shattered in any respect in their cross examination, I have to
ascertain,whether it is qualifying all the ingredients to constitute
offence u/s 381 of I.P.C.
23 S.C.275/2012
28] In order to constitute offence on the above head, the
prosecution has to prove that accused was public servant,when he did
commit the offence. That the subject matter viz.the stolen property
was movable, that it was in possession of Santosh Hendre,P.W.21,
regular driver of Satara S.T. depot of the said bus, it was dishonestly
moved by the accused out of possession of the said witness, without
his consent, with intent to take it away from the lawful possession of
the said driver Shri Hendre. Thus, after taking into stock the entire
evidence of all the above said witnesses, it is crystal clear that the bus
was parked by P.W. 21 Hendre in the Swargate S.T. depot near pan
stall situate therein. It was duly locked and when he had been to
answer nature's call in the public lavatory, situate in the Swargate S.T.
depot , the bus was dishonestly moved by the accused and this fact
was witnessed by the above said witnesses. Therefore, I have to
consider, whether the said bus has been seized from the accused. In
this regard, the evidence of P.W. 39 Investigating Officer Shri Mohite
coupled with the panchanama Ex.179A found tobe of paramount
consideration. Their evidence makes it manifest that after the incident,
when bus stopped in front of Samadhan Bhel shop, coming within the
limits of Swargate police station, it was in damaged condition, was
seized from accused under panchanama Ex.179A.
29] So far as use of the said bus, it is crystal clear that it was
moved from Outgate of Swargate S.T. depot and moved towards
Shankarsheth road, to 7 Loves chowk, Narsing chowk, Nepiar road,
Solapur chowk, Mahmadevde chowk, then Eastern road, Talera
bunglow chowk, Lashkar police station chowk, old S.T. stand chowk,
Kasewadi chowk, to Dias plot, Holga chowk, Mitramandal chowk and
24 S.C.275/2012
Mahalaxmi chowk. Thus, it is clear that the said bus was stolen by the
accused from the lawful custody of P.W.21 Hendrethe regular driver of
the S.T. bus No.MH14BT1532. It is also crystal clear that said bus
has been used by the accused for committing massacre as discussed in
the prosecution story. Thus, the prosecution has succeeded in proving
beyond reasonable doubt that the accused had dishonestly committed
theft of S.T. bus No.MH14BT1532 out of possession and without
consent of Santosh HendrePW 21, the regular driver of the said S.T.
bus belonged to Satara S.T. depot. Hence, the said S.T. bus after
massacre of nine persons and causing injuries to 37 persons, came
tobe seized from accused under panchanama Ex.179A drawn by P.W.39
in presence of panchas. Hence, I answered the finding on point no.1 in
the affirmative.
30] Point no.2:
Now, I have to deal with the vital aspect, to ascertain
whether deaths of the following persons had taken place out of the
homicidal injuries or otherwise:
1] Puja Bhaurao Patil, age 19,
2] Ram Lalit Shukla age 25,
3] Shubhangi Suryakant More,age 35,
4] Pinkesh Lalchand Khandelkal,age 32,
5] Ankush Baban Tikone, age 46,
6] Akshay Pramod Pise,age 20,
7] Milind Purushottam Gaikwad,age 47,
8] Shweta Dhaval Oswal,age 28,
9] Changdeo Pandharinath Bhandvalkar, age 55.
25 S.C.275/2012
31] In this regard, the defence has admitted the inquest
panchanamas of Ex.17 to 25 and the autopsy reports of Ex.41 to 49 of
the above said persons. Hence, I have to find out, whether the death of
the above said persons did take place due to driving of S.T. bus
no.MH14BT1532, intentionally and knowing that it is so imminently
dangerous that it must in all probability, cause death or such bodily
injury, as is likely to cause death and committed such act, without any
excuse for incurring the risk of causing death by driving the said bus
indiscriminately on all the spots of offences, as discussed in point no.1.
32] On the above background facts, at the outset, I find it
desirable to take into account the definition of murder by taking into
stock the mandate of sec.300 of I.P.C. Thus, according to the clause 4
of the said section, it is clear that if the person commits the
act,knowing that it is so imminently dangerous that it must in all
probability, cause death or such bodily injury as is likely to cause
death and commits such act without any excuse,for incurring the risk
of causing death or such bodily injury as aforesaid, resulting in death,
amounts to murder.
33] So far as degree of criminality in each case, depends upon
the mentality of the accused and not upon the nature or effect of the
act, death is caused in each case but the nature of criminality in each
case differs. Where there is sedate deliberation, law assumes it is
murder. On this premise, I find it desirable to take into account
distinction between clause (c) of Sec.299 and clause 4 of section 300
I.P.C. According to clause (c) of Sec.299, the act is so dangerous that it
26 S.C.275/2012
must probably cause death. As against this, according to clause 4 of
section 300, the act is so imminently dangerous that it must in all
probability, causes death. For this purpose, the following factors are
necessary:
1] That act is imminently dangerous,
2] That in all probability, it will cause death or such bodily injury as is
likely to cause death and
3] That the act is done without any excuse for incurring the risk.
34] Thus, when intention of either kind exists with the
knowledge as described, the knowledge merges in the intention and
higher degree of guilt is imputable.
35] It is crystal clear that there was intention on the part of
the accused in committing culpable homicide, with such intention, of
causing such bodily injury as the accused knew that it was likely to
cause the death of the pedestrians, auto drivers and others,to whom
he has dashed by the S.T. bus no.MH14BT1532 or the said act was
done with the intention of causing bodily injury intended tobe inflicted
being sufficient in ordinary course of nature to cause the deaths of
above said persons and more particularly, while committing the above
said act of driving the bus, in the above said manner, accused knew
that the said act was so imminently dangerous that it must in all the
probability, cause death of the pedestrians or bodily injury as likely to
cause death and committed such act without any excuse for incurring
the risk of causing death or such injuries to the above said persons,
likely to cause death.
27 S.C.275/2012
36] Thus, on this plight, I have to ascertain whether the death
of above said nine persons,did take place due to the homicidal injuries
caused by the accused by driving the above said bus in the above said
manner, on the above said route. In this context, the panchanama and
map of the spots furnished vide Ex.113 has been admitted by the
defence. Likewise, the crime scene panchanamas of Ex.26 to 40.
37] It is also pertinent to note that homicidal death of the
above said persons has not been disputed by the defence. Therefore, I
find it desirable to bank on the evidence of P.W.26 Dr.Ajay Taware, who
had conducted autopsy on the dead body of Changdev Bhandvalkar on
14.2.2012 and had issued the autopsy report of Ex.49. It has been
admitted by the defence and thereby the death of the said person did
take place out of the homicidal injuries.
38] Further, I have to consider admitted inquest panchanamas
and autopsy reports of other 8 deceased. The admitted inquest
panchanamas are at Ex.17 to 25, and autopsy reports of Ex.41 to 49.
The said admitted documentary evidence speaks that death of Akshay
Pise and Milind Gaikwad, as per autopsy reports Ex.41 and 42 has
taken place due to multiple fracture injuries, coupled with other
injuries. The autopsy report Ex.43 in respect of Shubhangi More
speaks that she had suffered multiple injuries as eloquent from
col.no.17 and death has taken place due to complication of multiple
injuries. The autopsy report Ex.44 of Ankush Tikone speaks that he
had suffered injuries on his leg ,left ankle, shoulder, over face, chest,
forearm, right eye, and fracture of wrist and mandible and due to
28 S.C.275/2012
complication of the said injuries, he has breathed his last. The autopsy
report Ex.45 of Puja Bhaurao Patil speaks that she had suffered
lacerated wound on forehead, her brain was exposed due to fracture
of skull and due to said injuries, she has lost her life. The autopsy
report of Ex.46 of Ram Lalit Shukla speaks that he had suffered
fracture of left femur,right wrist, coupled with other injuries and due
to complication thereof, he has lost his life. The autopsy report Ex.47
in respect of Pinkesh Khandelwal speaks that he had also suffered
grievous injuries,including fracture of Maxilla,mandible, right wrist,
right knee and he has succumbed to the said injuries. Autopsy report
of Shweta Oswal of Ex.48 speaks that she had suffered nearly 15
injuries and due to the impact of the said homicidal injuries, she has
lost her life. The autopsy report Ex.49 of Changdeo Bhandvalkar
speaks that his death has taken place due to complication of head
injury. Thus,there is no room of doubt to come to the conclusion that
the deaths of above said nine persons had taken place due to above
said homicidal injuries having been caused by the accused with
intention of causing death or with the intention of causing such bodily
injury to be likely to cause the death of the person to whom the harm
has been caused or it has been done with the intention of causing
bodily injury,intended to be inflicted was sufficient in the ordinary
course of nature to cause death of the above said persons, or the
accused had committed the above said act knowing that it is so
imminently dangerous that it must in all probability cause death or
such bodily injury as is likely to cause death and committed such act
without any excuse for incurring the risk of causing death of the above
said persons. Hence, I have answered the findings on point no.2 in the
affirmative.
29 S.C.275/2012
39] Point No.3:
In order to sustain the charge u/s 302 of I.P.C., I have to
ascertain whether the death of the above said nine persons has been
caused by the accused by driving the above said bus with intention or
committed the act knowing that it is so imminently dangerous that it
must in all probability, cause death or such bodily injury as is likely to
cause death and committed said act without any excuse, for incurring
the risk of causing death of the above said nine persons. Therefore,
intention /motive/mense rea plays pivotal role in the commission of
offence of murder.
40] Law is well settled that if there is direct evidence as to the
offence of murder, then ,intention /motive/mense rea need not be
proved as it has tobe gathered by court by taking into stock entire
direct,circumstantial evidence and conduct of the culprit while
committing the crime.
41] In this regard, I find it desirable to bank on the ratio of
Hon'ble Apex Court in the case of State of U.P. Vs. Nahar Sing A.I.R.
1998 S.C.1328, wherein, it has been held that when the participation
of the accused is fully established in committing murder, only absence
of motive in the offence is of no importance, hence, on that ground,
accused cannot be acquitted.
42] On the basis of the above said settled proposition of law, I
have to ascertain, whether the accused has committed murder of the
above said nine persons, with the above said intention or knowledge
30 S.C.275/2012
that his act was so imminently dangerous,that it must in all the
probability ,cause death of the above said nine persons or such bodily
injuries as likely to cause their death and did commit the said act
without any excuse for incurring the risk of causing death as
contemplated under clause 1 to 4 of sec.300 of I.P.C. Therefore, I find
it desirable to take into account the conduct of the accused at the
outset.
43] That the accused has been appointed as S.T. driver with
Swargate S.T. depot since 8.8.99. It is eloquent from his service record
furnished vide Ex.122 and 122/1 to 15 that thrice on the premise of
rash and negligent driving of the S.T. buses, and twice absenting from
duty without getting the leave sanctioned in advance and causing
damage to the S.T. bus, penalty was saddled to him. Therefore, now I
have to deal with the conduct of the accused in the capacity of bus
driver, immediately before the incident, which did take place on
25.1.2012.
44] In this context, I find it desirable to take into account the
most valuable evidence of P.W.2. There is no dispute that P.W.2 Gulve
had discharged duty as conductor on the S.T. bus No.MH14BT0717
which was moved by the accused from Swargate to Gangapur on
23.1.12 and again the same bus was driven by him from Gangapur to
Swargate on 24.1.12 which has reached to the destination at 6.30 p.m.
It is eloquent from the evidence of this witness,during the said journey,
on both the days, the bus was plied by the accused about 20 to 22
hours. It is eloquent from his evidence that bus was stopped at all the
stops, wherein, tea, refreshment,lunch and dinner was enjoyed by
31 S.C.275/2012
them. It is eloquent that when the bus was on back journey on
24.1.12, the Gangapur police had informed to the accused and P.W.2
Gulve that at Afzalpur, farmers have observed strike,hence,instructed
the said team to move the bus at the earliest from Gangapur,so as to
cross Afzalpur before 10 a.m. Accordingly, bus was moved by the
accused before the said time, which has reached at Afzalpur and
Dudhani at 8 a.m. and 8.30 a.m. respectively. Hence, at Dudhani,
breakfast was enjoyed by accused and the conductor. It is also clear
that the said bus reached at Akkalkot at 9.30 ,then,at Indapur at 2
p.m.,where they enjoyed lunch in hotel. It is also manifest that when
bus was tobe moved from Indapur, accused noticed its one tyre had
puncture, bus was moved to S.T depot, puncture was removed and bus
was moved by the accused which reached Swargate S.T. depot, at 6.30
p.m. It is also eloquent that in the night of 23rd and 24th Jan.2012, at
Gangapur, the accused and the said witness had enjoyed sound sleep
in the bus itself. Thus, from the said evidence, it is crystal clear that till
6.30 p.m.of 24.1.12, the conduct of the accused was of normal bus
driver and just like a man of ordinary prudence. Therefore, it is clear
that on all the stops, where the bus was stopped, accused has behaved
just like a gentleman and gentle driver,without inviting any complaint
of passenger and public.
45] After scanning the evidence of P.W.2, I have to consider the
evidence of P.W.3 Rajendra Gaikwad who had allotted duty to the
accused on 24.1.12, to ply the bus from Swargate to Waduste by
discharging night out duty. The said bus was scheduled on 25.1.12. It
is eloquent from the evidence of this witness, when said duty was
allotted to the accused, no grievance whatsoever was raised by him
32 S.C.275/2012
thereto.
46] Besides the evidence of P.W.3 , I find it desirable to take
into account the evidence of P.W.23 Shashikant Damkale, the
Asstt.Traffic Controller of Swargate Depot. He has categorically
deposed that he allots duty to S.T. drivers and conductors. Accordingly,
on 24.1.12 at about 11.30 p.m. Swargate to Solapur bus was to
proceed but its driver did not turn,hence,he had been in the rest room
and inquired with one Birajdar and Shinde driver,whether they are
willing to discharge duty as driver, but they refused. Further,he
deposed that then,he had made search of the accused on cot no.3 in
the rest room but the accused was found absent from his bed.
47] He has categorically deposed that on 25.1.12, when he was
in allocation room, at about 7 to 7.30 a.m., the accused arrived in his
room, requested to change his night out duty into single duty, but due
to shortage of drivers , said request was not considered by the said
witness and thereafter, he had noticed, the accused had left the
allocation room calmly and quietly at about 7.45 a.m .
48] Now, I have to deal with the general conduct of the
accused as the bus driver of Swargate S.T. depot. In this context,
evidence of P.W.24 Vijay Diwate, Depot manager found tobe of
paramount consideration. He has deposed that the accused has
discharged duty as bus driver excellently before the incident. Hence,
now, question crops in, what circumstance has prompted the accused
in committing theft of Bus No.MH14BT1532 out of possession of
Santosh Hendre P.W. 21 and committing massacre of 9 persons and
33 S.C.275/2012
causing grievous and simple injuries to 37 persons by indiscriminately
moving the bus.
49] It is crystal clear from the prosecution and defence
evidence that before the incident, the accused has not availed leave
for medical treatment on the premise,having had suffered from
disturbed sleep, less eating, hearing voices, having persecutory ideas
and suffered from hallucinations. Therefore, I have to fall back to the
evidence of P.W.4 Balasaheb Sarode, the Asstt.Traffic Inspector of
Swargate S.T. Depot. He has deposed that accused had enjoyed leave
from 19.2.10 to 19.3.10 under application of Ex. 85 submitted on
3.3.10 without medical certificate,though leave was applied on the
ground of sickness and treatment,tobe taken thereto. He has also
deposed that the certificate dt.17.3.10 in support of the medical leave
application was produced on 19.3.10 .The said documents are duly
proved in the evidence of said witness. Thus, the medical certificate
dt.17.3.10 speaks that in between the above said leave period, accused
had suffered from viral hepatitis and therefore,he had absented.
50] Hence, on this background, I have to consider the defence
evidence of D.W.1 Dr.Burte. He has deposed that on 19.2.10, accused
had been in his hospital .He had made complaint about having
disturbed sleep, less eating ,palpitations, hearing voices in ear, having
ideas of persecution, his mood was of sadness with ideas of suicide at
the time, since last 15 days of the visit. He has deposed that on the
said date, and on 22.2.10, 24.2.10, 13.3.10, 31.5.10, 23.8.10, 24.6.11
and 2.8.11, accused had taken treatment from his hospital as per the
prescription of Ex.197, which pertains to consuming tablets. Further,
34 S.C.275/2012
he has made bold statement that on 19.2.10, 22.2.10, 25.2.10 1.3.10,
4.3.10, 12.3.10, accused was subjected to electro convulsive
therapy/test (E.C.T.). But he has been compelled to admit that there is
no mention thereto in Exs.197,198 and 199. Therefore, I have to
relate back the above said leave period of the accused with the
evidence of this defence witness.
51] After taking into stock the leave enjoyed by the accused, in
between 19.2.10 to 19.3.10,it is clear that he had suffered from viral
hepatitis. Consequently, there was no reason to D.W.1 Dr.Burte to
provide medical treatment to the accused by applying E.C.T. test on
the above said dates. On this background, I have to consider the
evidence of eye witnesses to ascertain intentional and imminently
dangerous act of the accused in driving the above said bus in the
above said manner.
52] For this purpose, I find it desirable to deal with the
evidence of eye witnesses Police Naik Deepak Kakade(P.W.15), P.M.T.
bus drivers Amar Chavan(P.W.18), Shivaji Tapare, head
constable(P.W.19) and star witness Bapu Lonkar, police
constable(P.W.20).
53] It is eloquent from the evidence of P.W.15 that he along
with Police Naik Sandeep Sutar, have discharged duty as Bit Martial by
the motorbike on the date of incident. Hence, he was armed with 9
mm carbine with 35 rounds and walky talky. When they received
message about the above said bus driven by the accused,committed
massacre and caused injuries to many persons,they have chased the
35 S.C.275/2012
bus on all the spots so as to stop it, opened four fire rounds on rear
tyre , 2 rounds on front windscreen glass and again 4 rounds on the
tyres with urge to the accused to stop the bus and thereby stop
massacre of innocent persons but the accused did not pay heed and
moved the bus knowing that his act was so imminently dangerous that
it must, in all probability, cause death or such bodily injury as is likely
to cause death of pedestrians and others. It is also eloquent that
simultaneously he has caused damage to the many more vehicles.
54] After the evidence of P.W.15, I have to consider the
evidence of P.W.18 Amar Chavan. He has categorically deposed that
when the bus after crossing the Outgate of Swargate S.T. depot was
moved to Shankarsheth road, it has dashed to the auto rickshaws and
other 4wheeler vehicles, consequently, speed was reduced, hence,by
taking advantage thereof, has entered in the driver's cabin of the bus,
tried to apply hand brake but the accused had assaulted him ,used
criminal force by one hand and pushed him near the tyre of the
bus,endangering his life. Thus, the above conduct of the accused in
the above regard depicts that he was knowing the consequences of
imminently dangerous act of driving the bus, indiscriminately that it
must in all probability, cause death or such bodily injuries as is likely
to cause death and committed such act without any excuse for
incurring the risk of causing death of innocent persons and
pedestrians.
55] In addition, I have to deal with the evidence of P.W.19
Tapare. The said witness has also categorically deposed that he had
also made utmost attempt to stop the bus but it was not stopped by
36 S.C.275/2012
the accused.
56] So far as evidence of Bapu Lonkar(P.W.20), it is crystal
clear that he had effected entry on the top of the bus by its ladder,
then,through window No.8 in the driver's cabin, informed to the
accused ¼ek.kls dk; ekjrksl\ cl Fkkaco½ “why you are killing innocent
persons, stop the bus”, thereon,accused retorted to the said witness
that he has no business to say anything in this regard. It is also
eloquent that when he tried to move steering of the bus, the accused
by his hand,assaulted the said witness,tried to push him down, so as to
endanger his life but fortunately,he has caughthold the cover of the
engine of the bus and saved himself. Thus, from the tenor of the
evidence of above eye witnesses, it is clear that the act of driving the
bus by the accused was intentional and so imminently dangerous
which in all probabilities, was to cause death or such bodily injuries as
is likely to cause death and committed the said act, without any excuse
for incurring the risk of causing death, his knowledge in driving the
bus in the above said manner, merged in prominent intention in
causing death of pedestrians, passengers, riders, pillion riders of
bikes,scooters, auto drivers, passengers, drivers of 4wheeler including
occupiers.
57] Now, I have to deal with the defence about accused by
reason of unsoundness of mind was incapable of knowing the nature
of the act or that he is doing what is either wrong or contrary to law.
Had the accused suffered from instant attack of lunacy, or fit and in
that event,he would have lost control over his mind, then, definitely,
37 S.C.275/2012
he would not have plied the bus hours together on the fateful day of
incident. At the most,he would have dashed the bus to many more
buildings,soon after it was set out from the outgate and in that event,
lives of nine persons could have been saved. However, such is not the
matter of fact. Therefore, the very fact of accused having had plied the
bus by the route and through 'no entry', without causing damage to
any of the building, speaks in volume that he was well aware that
giving dash to the building by the bus,will cause it to stop and thereby
it will arrest further menace and deaths. Therefore, no man of
ordinary prudence can say that accused was insane while driving the
bus. On this plight also, his intention and knowledge appears
prominent in committing the crime.
58] So far as sanity is concerned, law always presumes that
every person is sane,unless contrary is proved. In the case at hand, the
defence evidence in view of my discussion supra, found tobe based on
afterthought. The D.W. 1 has made categorical statement before the
media on next day of the incident that only once on 19.2.2010,
accused had been in his hospital for treatment, at that time,he had
complaint of disturbed sleep, less eating, and persecutory ideas only.
Thus, he has categorically admitted that case of the accused was not
within the ambit of Sec.20 of Mental Health Act,1987 in securing
reception order by providing medical treatment as to the ailment
suffered by the accused. Therefore, it is clear that false defence came
tobe built by taking undue advantage of sick leave of the accused
w.e.f.19.2.2010 to 19.3.2010. During the said period,according to the
accused,he had suffered from viral hepatitis and not from disturbed
sleep, less eating, persecutory ideas, hallucinations and ideas coupled
38 S.C.275/2012
with suicidal mood. Therefore, defence has been totally falsified by the
evidence of P.W.4 and documentary evidence of Ex.85,medical
certificate issued by Subodh Clinic which has been relied by accused
himself in availing leave.
59] Besides the above said evidence, I have to fall back to the
evidence of P.W.17Limaye, Amar ChavanP.W.18 P.W.20Bapu Lonkar
DamkaleP.W.23, about they having had made urge to accused to stop
the bus on all the respective spots in order to arrest further massacre
and menace but accused did not pay heed thereto. Thus, the
knowledge of the accused in driving the bus in so imminently
dangerous manner that it must in all probabilities cause death or such
bodily injury, as is likely to cause death and committed such act
without any excuse for incurring the risk of causing death, “merged
into prominent intention in committing the crime with intention
and knowledge,” as contemplated under clause 1 to 4 of Sec.300 of
I.P.C.
60] From the evidence of P.W.20 Bapu Lonkar, it is crystal clear
that when he entered in the driver's cabin and tried to move the
steering of the bus by his hand, accused pushed him by his hand and
then, this witness came in contact with the cover of the engine and at
that time, the accused lost control over the bus. Consequently,it has
dashed to the road divider and other vehicles and then, it was
stopped. Thus,considering the above said demonic act of the accused,
one cannot venture to say that he was not knowing the consequences
of the act done by him,while driving the bus. Moreover, one cannot
venture to say that he was not aware that his act was wrong ,immoral
39 S.C.275/2012
or in contra to the law. Thus, it is clear that he was not having
unsound mind while driving the bus,hence,he could drive the bus by
assaulting Chavan and Lonkar ,when they tried to stop the bus by
actually effecting entry in the driver's cabin. The very act of the said
accused in pushing down Chavan from the moving bus and he fell
near to the front wheel of the bus driven by the accused,speaks in
volume,he was well aware of his illegal act,which was imminently
dangerous to the life of the above said witness,equally to the life of
Lonkar and other pedestrians.
61] Lastly, so far as conduct of accused is concerned, it is
eloquent from the evidence that when he was apprehended by Lonkar,
when bus was stopped,public had assaulted the accused in driver's
cabin,then,he was moved in six seater rickshaw, again he was
assaulted by public by causing damage to the windscreen glass of auto
rickshaw,then accused was moved by other van to safe place,in order
to save his life and at that time,he had made an attempt to flee.
Therefore, this circumstance also speaks in volume that accused had
intention and knowledge of the acts done by him, hence, he could
move the bus in the above said manner, without stopping the bus
despite the urge of his superiors Limaye, Damkale, and others. Thus,
from the overall conduct of the accused,while driving the bus, it is
crystal clear that he had intention and knowledge in committing
murder of the above said persons by driving the bus in the above said
manner. Moreover, it is crystal clear that initially, he had knowledge
that his act was so imminently dangerous that it must in all
probability, cause death or such bodily injury as is likely to cause death
and committed such act without any excuse for incurring the risk of
40 S.C.275/2012
causing death or such injury . Hence, he found to have committed
murder of the above said nine persons, “as his knowledge has
merged in prominent intention soon after he has shown defiance”
to the instructions of his superiors and above said eye witnesses to
stop the bus.
62] In view of my discussion supra, it is clear that homicidal
death of all the nine persons has not been disputed. Therefore, I find it
desirable to consider the ratios relied by the prosecution and the
defence.
63] In this context, the learned Public Prosecutor has invited
my attention in the following case laws:
1] Surendra Mishra Vs.State of Jharkhand A.I.R. 2011 S.C.627.
2] Bapu @ Gajraj Singh Vs.State of Rajasthan 2007 DGLS (Soft)
1312.
3] Sheralli Wali Mahammed Vs.State of Maharashtra 1972
Cri.L.J.1523(V 78 C 395)(1).
4] Sudhakaran Vs.State of Kerala A.I.R. 2011 S.C.265.
5] State of M.P. Vs. Ahmadulla A.I.R. 1961 S.C.998.
64] The ratio in the case of Bapu @ Gajraj Singh speaks
about the ambit of sec.84 of I.P.C. wherein, it has been held that
benefit under the said section can be availed after it is proved that at
the time of committing the act, the accused was labouring under such
defect of reason, from disease of the mind as not to know, the nature
and quality of the act he was doing or that even if he did not know it ,
41 S.C.275/2012
it was either wrong or contrary to law. Thus,it has been held that
crucial point of time for deciding whether the benefit should be given
or not,is the material time,when the offence takes place.
65] The ratio laid down in the case of Sudhakaran cited
supra, speaks that when the record did not indicate that the patient
was suffering from such mental disability, which incapacitated him to
know nature of the act that he had committed at the time of incident,
hence, benefit of sec.84 cannot be extended.
66] The ratio in case of State of M.P. cited supra, speaks that
burden of proof is on the accused to prove that at the time of
commission of offence, by reason of unsoundness of mind,he was
incapable of knowing the nature of the act or that what he is doing is
either wrong or contrary to the law. Thus, the entire conduct of the
accused from the time of commission of the offence upto the time of
Sessions proceedings commenced, is relevant for the purpose of
ascertaining, the above said plea of the accused, is in consonance with
sec.84 of I.P.C. or not. Thus, he has to discharge burden in this regard
according to sec.105 of Indian Evidence Act. The said burden is lighter
just like to be discharged in civil cases, on the basis of preponderance
of probabilities.
67] Hence, while taking into account the conduct of the
accused, on the basis of above discussed evidence and on the basis of
the ratios laid down in the above said cases, it is crystal clear that
accused has not made out his defence.
42 S.C.275/2012
68] Moreover, from the above said ratios, it is clear that
conduct of the accused at the time of the incident, likewise before and
after the incident, needs to be considered in ascertaining, whether the
act was intentional, knowing the consequences thereof or the act being
contrary to the law and against the moral. In the case at hand, in view
of my discussion supra, it is clear that accused was having intention
and knowledge of the act and consequences in view of the clause 1 to
4 of sec.300 of I.P.C.. If really,he would not have been aware of the
consequences of the act, then, he could not have reacted in respect of
witnesses Chavan and Bapu Lonkar,by assaulting them,when they have
made positive attempt to stop the bus in order to save lives of
pedestrians and further massacre.
69] So far as intention is concerned, law is well settled that it
depends on the mind set of a particular person. Therefore,there cannot
be direct evidence as to the intention and knowledge, which has tobe
gathered from entire evidence and conduct of the culprit. Therefore,
considering the said legal proposition of law, if the conduct of the
accused is taken into stock, it depicts that he has committed murder of
the above said nine persons,by intentionally moving the bus
indiscriminately and knowingly that said act was so imminently
dangerous that it must in all probability, cause death or such bodily
injury ,as is likely to cause death and committed such act without any
excuse, for incurring the risk of causing death of the above said
innocent persons.
70] Thus, from the evidence of all the prosecution witnesses,
more particularly, the star witnesses P.W.15, 17, 18 19, 20, 23,24 that
43 S.C.275/2012
though they have urged the accused to stop the bus to arrest further
massacre and mishap, he did not stop the same. Therefore, guilty
mind of the accused found manifest, in committing the above said act
by driving the bus in the above said manner. Hence, only one
conclusion can be drawn that the accused had committed murder of
the above said nine persons with intention and more particularly,
having knowledge that his act in driving the bus in the above said
manner was so imminently dangerous that it must in all the
probabilities cause the death of pedestrians, passengers, riders of two
wheeler, drivers of three and four wheeler vehicles or such bodily
injury as was likely to cause death of such persons,by giving dash to
them and committed the said act without any excuse for incurring the
risk of causing death or such injury to the persons. On this plight, I
find it desirable to consider the evidence of following eye witnesses.
71] The P.Ws. 5 to 14, 16 and 22 are the injured eye witnesses.
From the tenor of their evidence, it is clear that the bus was moved by
the accused dangerously, knowing the consequences of the act in
driving the bus in such manner without paying heed to the
instructions of Lonkar, Chavan, Limaye, and Damkale. It is eloquent
from their evidence that their two wheeler, three wheeler vehicles
were dashed and thereby,injuries were caused to them. It is eloquent
from the evidence of P.W.6 Aditi Kamble that on the date of incident,
she was rider of her Scooty, on which, Puja was the pillion rider and
when the Scooty came at Solapur bazar chowky and then at Golibar
maidan, the bus driven by the accused had dashed to the Scooty,
resultant upon they were thrown on the road, she suffered from
unconsciousness, Puja suffered grievous injuries and succumbed to
44 S.C.275/2012
those on the way to hospital. Same is the position in respect of
evidence of Mrs.Versha Dhamale P.W.7. She has deposed that she along
with others was proceeding by Piyago rickshaw. When it reached near
Samadhan Bhel shop, from opposite direction, S.T. bus driven by
accused came and dashed to the rickshaw, it turned turtle, thereby she
had suffered grievous injuries and was compelled to remain in the
hospital for fortnight. P.W.8 Tanaji Kale has deposed that on the date of
incident, he had been at Swargate at 8 a.m. and at that time, bus had
dashed 34 auto rickshaw,which were parked in the parking lot and
therefore,he had sustained grievous injuries and was hospitalized.
P.W.9 has also deposed about the fatal injuries sustained to Puja and
injuries to Aditi KambleP.W.6. Wasim BahadurP.W.10 has deposed
about the incident occurred at Patil Plaza, and Mitramandal chowk. He
has deposed that one bike along with the boy was dragged about 100
ft.by the bus , resultant upon, rider of the bike was crushed.
72] From the tenor of the evidence of P.W.12 to 14, it is clear
that their auto rickshaws and bikes were dashed by the S.T. bus
No.MH14BT1532 driven by the accused at Swargate Outgate, at
Mahatma Gandhi bus stop, at Solapur bazar and Pulgate chowk. The
said evidence has not been shattered in any respect. Hence, I do not
find any hitch to act upon it and come to the unimpeachable
conclusion that death of the above said nine persons has been caused
by accused,which amounts to murder according to clause 1 to 4 of
sec.300 of I.P.C.
73] I find it desirable to consider the evidence of P.W.11
Nishant Pawaskar, who has deposed about pitiable condition of his
45 S.C.275/2012
friend Akshay Pise, who by riding on his bike was proceeding towards
Mitramandal chowk and Patil Plaza chowk, the bus driven by the
accused dashed to the bike of Akshay, he was dragged about 100
ft.away with his bike and thereby,was crushed. Akshay was student of
engineering college. Same is the position of Aditi Kamble,who is
student of Dental College. Likewise Puja was student of Dental college.
Hence, considering the manner of moving the bus on the person of the
above said persons, I find it desirable to take into account the concept
of rural Indian people.
74] So far as causing death by vehicles in Maharashtra, the
drivers have ideas to take wicket of person,under tyre of vehicle.
However, by causing death in such manner, colour of accident is being
given to such incidents. Likewise, futile attempts are being made to
bring cases within the exceptions provided in Chapter IV of I.P.C.
Hence, on this premise, I have to take into account the mind set of the
accused in committing the crime.
75] On this point, I find it desirable to take into account the
evidence of Dr.Rahul Telang, Dr.Kirankumar Jadhav, Dr.Vishal Patil,
P.Ws.27 to 29. From their tenor of evidence, it is clear that when they
have examined the accused for the first time on 25.1.12 at about 1.30
to 2 p.m. in crime office of A.C.P Crimes Pune, the accused had
narrated history of road traffic accident. It is also clear that at that
time, accused was found normal. Therefore, I have to gather
intention and knowledge of the accused about causing death of above
said nine persons, on the basis of history of road traffic
accident,voluntarily narrated by him to the above said doctors,soon
46 S.C.275/2012
after the incident and more particularly, after 4 to 5 hours. Hence, on
this premise also, the intention and knowledge as discussed supra of
the accused in committing murder,found manifest.
76] From the tenor of evidence of P.W.3 Rajendra Gaikwad,
P.W.17 Limaye, P.W.23 Damakale and P.W.24 Diwate, it appears that
grievance of the accused was with the management and
administration of Swargate S.T.Depot. Therefore, the accused had
requested them to change his night out duty to single duty but the said
witnesses turned down the said request of the accused. On this
premise, accused appears to have self enraged with extreme fury and
with that motive and intention, proceeded to move the bus by
committing its theft and further menace.
77] On the above plight, I have to take into account the
situation faced by the accused and the P.W.23 Damakale on 25.01.2012
in between 7 to 7.30 a.m. Admittedly, at the said time, accused had
been towards P.W.23, requested him to change his night out duty to
single duty but P.W.23 refused to do so, thereby, accused self got
enraged with extreme fury with intention and motive to teach lesson
to all his superiors of S.T. and through them, to the public at large,
committed theft of the offending bus No.MH14BT1532 , moved it
indiscriminately by guarding him alone, by breaking all the traffic
rules, in high disregard of the circumstances of the road, pedestrians,
vehicles passing therefrom, dashed many pedestrians, fruit carts,
bikes, scooters, auto rickshaws, tempos, 4wheeler vehicles, intending
and knowing that said act was so imminently dangerous that it must
in all probabilities, will cause death or such bodily injury as is likely to
47 S.C.275/2012
cause death of above said persons and committed such act without any
excuse for incurring the risk of causing death or such bodily injuries,
thereby has committed the murder of above said nine persons in
ghastly manner.
78] Thus, on the basis of above discussed evidence, I come to
the unimpeachable conclusion that the murder of the above said
persons as contemplated under clause 1 to 4 of sec.300 of I.P.C. has
been committed by the accused by driving the bus in the above said
manner and more particularly, intending and knowing that the act in
driving the bus was so imminently dangerous, that it must in all the
probability, cause death or such bodily injury,as was likely to cause
death and had committed the said act,without any excuse for incurring
the risk of causing death of the above said persons. Hence, I answered
the finding on the said point in the affirmative.
79] Point No.4:
In order to sustain the charge u/s 307 of I.P.C. , the
prosecution has to prove that the accused had driven the S.T. bus
no.MH14BT1532 with intention and with the knowledge that it is
so imminently dangerous that it must in all the probabilities cause the
death or such bodily injuries, as is likely to cause death and committed
the said act,without any excuse for incurring the risk of causing death
or injuries to passengers, pedestrians, rider,pillion rider of bikes,
scooters, auto drivers,passengers, drivers and occupiers of 4wheeler
vehicles.
80] Thus, the prosecution has to establish that the accused has
48 S.C.275/2012
made an attempt to commit murder by causing injuries to Rohini
Jadhav, Akanksha Jain, Ritu Dodeja, Dayaram Shankar More,
Parmeshwar Tolnure, Deepak Sonu Modak, Ibrahim Shaikh, Godabai
Kisan Lugade, Madhukar Randive, Jainur Abdul Ali Shaikh, Afia
Sardar Sayyad, Prafulla Rammohan Nair, Tanaji Kale, Nandkumar
Waikar, Aditi Waikar, Chandrajeet Aher, Babu Basumiya Shaikh,
Mahesh Gadhawe Dattatraya Mohite, Devendra Patil , Pirsing Hajare,
Krushik Khandelwal, Surgerao Mastud, Dattatraya Mahangre, Bhaurao
Patil, Shaikh Irshad Ali, Versha Damale, Pradeep Shankar More,
Suresh Vasant Pawar, Ganesh Laxman Galande, Abhicharan Mishra,
Ajay Shukla, Dashrath Bhise, Ganesh Bhise, Dhanaji Awate, Aditi
Kamble and Sameer Adrill Furnandis,with such intention or
knowledge and under such circumstances, that if by the act of driving
the bus in the above said manner, he would have caused the death of
above said persons, in that event,he would have been guilty of murder
of the said witnesses.
81] So far as intention and knowledge in causing injuries to
the above said persons, it is crystal clear that the accused despite the
instructions given by Ajit Limaye, Damakale, P.M.T. driver Chavan,
Police Naik Deepak Kakade, Head constable Shivaji Tapare, Constable
Bapu Lonkar, and others to stop the S.T. bus, to arrest further massacre
and injuries to the pedestrians, riders and pillion riders of bikes,
scooter, auto drivers, passengers and persons who had travelled by
their 4wheeler vehicles, did not stop the bus. Had the accused paid
heed to the instructions of P.M.T. driver Chavan in the beginning, then,
definitely, further menace would have been arrested and the above
said persons would not have suffered grievous injuries and they would
49 S.C.275/2012
not have been compelled to suffer agony in hospital. Thereby, they
would not suffer permanent disabilities. Therefore, intention of the
accused found manifest in committing the above said crime.
82] In addition, the evidence of said witness speaks that when
the bus was indiscriminately moved by the accused, from Outgate, it
has dashed 4wheeler fruit carts, auto rickshaw, thereby, fruits were
thrown on road, rickshaws were turtle on the person of one Chopade,
then, bus was entangled with Mini bus, where barricades were
arranged, hence, intellectually, accused had applied reversed gear of
the bus and reversed the same and has moved it by wrong side,
dashed to Tata Magic, then, one Xyllo jeep, thereby bus was stopped
for a moment. Therefore, the said witness had effected entry in the
cabin of the bus, tried to apply its hand brake but that attempt was
made futile by accused by assaulting the said witness by pushing him
down from the moving bus, resultant upon, the said witness fell down
near the front wheel of bus and thereby, his life was endangered. In
counter action, the said witness has assaulted the accused on his
shoulder by damaged wooden plank, still then, he did not stop the
bus. The said act speaks that accused was in sound state of mind,
having good judgment, thereby made futile the attempt of the said
witness to stop the bus in order to arrest further massacre and
menace.
83] The following injury reports of said injured are admitted
by the defence. Those are at Ex.50 to 52, 54,56 to 58, 61 to 63.
50 S.C.275/2012
Exh.No. Name of injured Injuries
50 Rohoni R.Jadhav Multiple contusions all over body. Head injury.
51 Akanksha Jain Multiple contusions with abrasions with flexion injuries clavicle spine.
52 Dayawan S.More Crush injury to great toe, contusion over right shoulder.
54 Deepak Sonu Modak 1] 1 x 0.5 cm.CLW over left occipital area. 2] 5 cm. CLW over left palm. 3] Loss of upper two incisor.
56 Godabai Kisan Lugade 1] 5 x 1 x 1 cm. CLW over left forehead. 2] 2 x 2 cm. abrasion over right knee. 3] Fracture clavicle left side, at lateral end. 4] Mild pericadical effusion . 5] mediannal emphyoema
57 Jainul A.A.Shaikh 1] 3 x 0.2 cm.CLW on forehead on left side. 2] 3 x 0.2 cm. CLW over just over forehead in midline. 3] 2 x 0.2 cm. CLW over under-surface of tongue.
58 Affiya Sayyad Undisplaced fracture of the nasal bone.
61 Surgerao Govind Mastud Fracture right shaft femur, fracture right tibia and fracture right wrist.
62 Bhaurao Patil Right leg tenderness over shin,abrasion 2 x 2 cm. 2] Tenderness over pariscrotal 3] Scrotal tenderness. 4] Right focal capsular rupture of testis on usg.
63 Versha Dhamale Fracture over superior pubic rhimi undisplaced and undisplaced fracture of 4th, 5th rib right side. CLW over right frontal head. 5 cm. x 2 x 1 cm.
84] Besides the injuries sustained to the above said witnesses,
one Mahesh Gadhawe (P.W.12), Dattatraya Mohite, Devendra Patil
(P.W.16), Pirsing Hajare, had sustained grievous injuries in the
incident. Those are not disputed by the defence.
51 S.C.275/2012
85] Thus, from the evidence of above eye witnesses,
documentary evidence of their above said injury reports, it is crystal
clear that accused is the author of above said grievous injuries caused
to them. Further, he has admitted that the above said other witnesses
had sustained injuries in the incident. It is proved on the basis of
evidence of eye witnesses that the injuries to the above said persons
have been caused by the accused with intention and knowledge that
moving the bus in so imminently dangerous manner that it must in all
probabilities cause death or such bodily injury as is likely to cause
death and committed such act without any excuse for incurring the
risk of causing death or such injuries to the above said persons .
86] The intention and knowledge of the accused in committing
the offence in the above said manner, in respect of the above said
persons to whom, he has caused grievous injuries appears to be
manifest in enraging fury on refusal of P.W.23 Damakalethe
Asstt.Traffic Inspector to change night out duty of the accused into
single duty as per the request made by the accused on 25.1.2012 in
between 7 to 7.30 a.m. in allocation room of P.W.23. Thus, in order to
make grievance against the management and administration of
Swargate S.T.Depot at the hands of P.W.3,4, 23 and 24, and others,
who did not pay heed to the request of the accused to change his night
out duty to single duty , he found to have committed theft of the bus,
moved it indiscriminately with intention and knowledge that the act
was so imminently dangerous that it must in all probability cause
death or such bodily injury as is likely to cause death and committed
such act without any excuse for incurring the risk of causing death and
injuries to the above said persons. Moreover, his intention in
52 S.C.275/2012
committing the offence in the above said manner appears in inviting
attention of the public about his request was turned down, hence, his
superiors and public shall take lesson thereto.
87] In such manner, intention and knowledge of the accused in
causing injuries to the above said persons found manifest . However,
they could survive due to early treatment. Hence, the case in their
respect rested at the stage of attempting to commit their murder.
88] It is crystal clear that no little attempt whatsoever was
made by the accused to save human life and to save pedestrians, riders
of 2wheeler vehicles, auto rickshaw drivers,passangers and drivers of
4wheeler vehicles, along with occupiers, by stopping the bus,when
there was earnest urge from P.M.T. driver Chavan, from Lonkar, from
Head constable Tapare and many others. Therefore, it is crystal clear
that the intention and knowledge of the accused was in committing
murder of the said persons,but due to grace of God, they could survive
but they remained handicapped and impaired and they have to suffer
this agony,throughout their life. Hence, considering the magnitude of
the incident and its ever lasting effect on all the injured and their
families, it is crystal clear that the said act has been committed by the
accused as contemplated under clause 1 to 4 of sec.300 of I.P.C. Hence,
there is no excuse to the accused to escape from the consequences of
the offence punishable u/s 307 of I.P.C.
89] Thus, in view of the above said evidence of the eye
witnesses, injured, police officers, P.M.T. driver and admitted injury
reports, of Ex.50 to 52, 54,56 to 58, 61 to 63, it is clear that accused
53 S.C.275/2012
did cause the injuries to the above said witnesses likely to invite their
death but fortunately they could save from the injuries as they were
immediately admitted by generous people, police and others in nearest
hospital and therefore, their life could be saved. Hence, this issue
requires no more discussion. Thus, in such manner, the prosecution
has succeeded in proving the guilt of the accused for the offence
punishable u/s 307 of I.P.C. beyond reasonable doubt. Hence, I
answered the finding on the said point in the affirmative.
90] Point no.5:
In order to sustain the charge u/s 324 of I.P.C., it is the first
and foremost duty of the prosecution to prove that the accused had
voluntarily caused injuries to Rohini Jadhav, Akansha Jain, Ritu
Dodeja,Parmeshwar Tolnure, Ibrahim Shaikh, Madhukar Randive,
Jainur Ali Shaikh, Prafulla Nair, Tanaji Kale, Nandkumar Waikar, Babu
Basumiya Shaikh, Devendra Patil, Rushik Khandelwal, Shaikh Irshad
Ali, Pradeep More, Suresh Powar, Ganesh Galande ,Abhicharan
Mishra, Ajay Shukla, Dashrath Bhise, Ganesh Bhise, Dhanaji Awate
and Sameer Furnandis, by giving the dash of the bus No.MH14BT
1532 with the intention and knowledge that by giving the dash,he was
likely to endanger life of above said persons,who were pedestrians,
riders and pillion riders of 2wheeler vehicles and drivers of auto
rickshaw and passengers. Likewise, drivers and occupiers of 4wheeler
vehicles.
91] In this context, the injury reports of the injured
Parmeshwar Tolnur, Ibrahim Shaikh, Tanaji Kale, Babu Shaikh , Vasant
Pawar and Ganesh Galande of Ex.53,55,59,60,64 and 65 are admitted
54 S.C.275/2012
by the defence. In addition, defence has admitted that the other
persons as indicated in the above paragraph had also sustained
injuries.
92] Now, I have to ascertain, whether the act in causing injury
to the above said persons, is voluntary or otherwise. In view of my
discussion, on the above points, it is clear that with intention and
knowledge, the accused has plied the above said S.T. bus knowing that
it is going to imminently endanger human life with all probabilities,
likely to cause death or such bodily injuries and committed said act
without any excuse for incurring the risk of causing such injuries to
the above said persons. Therefore, intention of the accused in
voluntarily causing injuries to the above said injured, found manifest.
In this regard, the injury reports of Ex.53,55,59,60,64 and 65 are
admitted by the defence. Thus, very admission of the injury reports
speaks that said injuries were caused to the said persons, out of the
use of S.T. bus No.MH14BT1532 indiscriminately driven by the
accused knowing that it is so imminently dangerous that it must in all
probability, cause bodily injuries as is likely to cause death and
committed such act, without any excuse, for incurring the risk of
causing such injuries to the above said persons. In such manner,
prosecution has proved beyond reasonable doubt that the accused has
voluntarily caused injuries to the above said witnesses by driving the
above said bus in the above said manner and thereby committed an
offence punishable u/s 324 of I.P.C. Hence, I answered the finding on
the point in the affirmative.
55 S.C.275/2012
93] Point no.6:
In order to sustain the charge u/s 427 of I.P.Code, the
prosecution has to prove that by driving the bus in the above said
manner by the accused, he had committed mischief by causing
wrongful loss and damage to the bikes, Scooters, auto rickshaws, 4
wheeler vehicles to the tune of Rs.7,28,000/. In this context, there is
no dispute that the accused by driving the bus, had given dash to the
bikes and auto rickshaws of P.W.5,6,8,9,10,11,12,13,14,16 and 22 and
thereby caused damage to their vehicles. It is also crystal clear that
damage to the tune of Rs.10 lacs has been caused to the S.T.bus
No.MH14BT1532 which was stolen by the accused and used in the
commission of the crime. Besides that, barricades installed at various
places were damaged by the accused by giving dash by the above said
bus. Therefore, the mischief of the accused in causing damage to 2
wheeler, 3wheeler and 4wheeler vehicles is manifest, on the basis of
evidence of P.Ws.5 to 10,11,12 to 14, 16 and 22. It is eloquent from
the evidence of the witnesses that their Scootys and bikes were totally
damaged. It is eloquent that motorbike of Akshay Pise was dragged
about 100 ft. along with him and thereby,it was crushed in toto.
Hence, on this plight, when all the crime scene panchanamas and
panchanama of the damage caused to the said vehicles of Exs.26 to 40
are admitted by the defence, I have to ascertain damage caused to the
said vehicles on the basis of the following list thereof:
Name & No.of vehicle Name of owner/ holder
Estimated damage
Auto rickshaw No.MH12DG1115
Tanaji Kale (PW 8) Rs.10000/
56 S.C.275/2012
Indica car No. MH14BA4056
Rs.20000/
Auto rickshaw No.MH12AR640
Dattatraya Mohite (P.W.14)
Rs.10000/
Auto rickshawNo.MH12R3999
Rs.7000/
Tata TempoNo.MH12GT912
Rs.25000/
Rickshaw No. MH12F6591
Rs.8000/
Pulsor bike No.MH12FB1473
Rs.12000/
Rickshaw No.MH12EQ4157
Rs.5000/
Xyllo jeep No. MH04ES2372
Rs.90000/
Auto rickshaw No.MH12AU5803
Rs.10000/
Activa scooter No.MH12FE7250
Rs.1000/
Bajaj Bike No. GT1317
Rs.1000/
Scooty No. MH12DD825
Rs.10000/
Scooty No.MH12CY4697
Rs.10000/
Rickshaw No.MH12QA4402
Rs.10000/
Access Scooter No.MH12GG1960
Rs.40000/
Hero Honda Bike No.MVA2170
Rs.25000/
Rickshaw No. MH12QA5787
Rs.2000/
I10 car No.MH12 Rs.30000/
57 S.C.275/2012
HN1562
Suzuki bike No.MH12HJ3565
Dnyaneshwar Mahangre (PW 13)
Rs.1000/
Mini bus No.MH12DG3076
Rs.5000/
Activa Scooter No. MH12HP9138
Rs.40000/
Car No. MH12FF5469
Rs.100000/
Motorbike No.MH12FE1910
Rs.30000/
Karisma motorcycle No.MH12GC5718
Rs.25000/
Maruti Zen No.MH12GF2796
Rs.10000/.
Ford Figo car No.MH12FY3310
Rs.1,00,000/
Auto rickshaw No.MH12FC1552
Devendra Patil (PW 16)
Rs.1,00,000/
Maruti car MH12BP7023
Rs.70,000/
Honda Tuster Bike No.MH12GD385
Rs.25000/
I10 car No.MH14CS2905
Rs.3000/
Alto car No.MH14AE0103
Rs.40000/
Hero Honda Bike No.MH12FH3300
Rs.10000/
94] In addition to the above said evidence, photographs of the
damaged vehicles are produced on record. All the photographs are
admitted by the defence. The said 88 and 29 photographs are
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collectively at Ex.166 and Ex.166/1 to 29.
95] Thus, in such manner, prosecution has succeeded in
proving that above said property viz. 2 wheeler 3 wheeler and 4
wheeler vehicles and S.T. bus has been damaged by the accused by
committing mischief thereto, by driving the bus in the above said
manner. Hence, I answered the finding on the point in the affirmative.
96] Point No.7 :
Now, I have to deal with the offence punishable u/s 3(2) of
the Prevention of Damage to the Public Property Act,1984. The section
3 thereof speaks that whoever commits mischief by doing any act in
respect of any public property, other than property of the nature
referred to in subsec.2 shall be punished with imprisonment for a
term which may extend to 5 years and with fine. Subsec.2 speaks that
whoever commits mischief by doing an act in respect of any public
property,being any building, installation or other property used in
connection with the production,distribution or supply of water, light ,
power or energy , any installation, any severage work, any mine
factory, any means of public transport or of telecommunication, any
building ,installation or property used in connection therewith, shall
be treated to be public property. In the case at hand, it is manifest
from the evidence of P.Ws.1 to 26 and 38,39 that public property
viz.barricades, P.M.T. buses were damaged by the accused by giving
dash to the said public property by the bus No.MH14BT1532 by
driving it in the above said manner, by causing damage of it to the
tune of Rs.10,00,000/, knowing that he was thereby going to commit
mischief in respect of the said public property, by causing damage to it.
59 S.C.275/2012
At the same time damage was caused to PMPL bus No.MH12EQ
5133 to the tune of Rs.50,000/.
97] It is eloquent from the evidence of all the superior officers
of the office of the accused viz.P.W.4,17,23,24 and all the police who
have deposed in the capacity of eye witnesses, that at all places,
barricades were damaged by accused by giving dashes to them by the
above said bus by driving it in the above said manner. Thus, from the
said evidence, it is conspicuous that accused has mischievously caused
damage to the public property,therefore, he found liable thereto in
view of mandate of sec.3(2) of the Prevention of Damage to Public
Property Act,1984. Hence, I answered the finding on the said point in
the affirmative.
98] Point No.8:
Now, I have to consider whether the act of the accused
discussed supra, comes within the ambit of sec.84 of I.P.C. Therefore, I
find it desirable to reproduce the said section, which reads as under:
“ Nothing is an offence which is done by a person who , at
the time of doing it, by reason of unsoundness of mind is incapable of
knowing the nature of the act, or that he is doing what is either wrong
or contrary to law.”
99] Thus, according to sec.105 of Evidence Act, burden to
bring the case under said exception lies on the accused. However, said
burden is lighter just like in civil cases in proving the case on the basis
of preponderance of probabilities. It is settled proposition of law that
first prosecution has to prove the guilt of the accused in respect of the
60 S.C.275/2012
offences punishable u/ss 302,307,324,427 of I.P.C. and u/s 3 (2) of
Prevention of Damage to Public Properties Act, then, only question
comes in for determination to ascertain whether the case has been
brought within the ambit of sec.84 of I.P.C.. Therefore, first of all ,I
find it desirable to take into account, whether the prosecution has
discharged burden in bringing home the guilt of the accused on all the
above heads of charges, beyond reasonable doubt on the basis of
direct, circumstantial and medical evidence .
100] In view of my finding on point nos.1 to 7 in the
affirmative, it is crystal clear that accused by driving the S.T.bus
No.MH14BT1532, with intention and knowledge that the act was so
imminently dangerous in driving the bus that it must in all
probabilities, cause the death of pedestrians, riders of 2wheeler
vehicles, 3wheeler auto rickshaw and 4wheeler drivers and
occupiers, or such bodily injuries as is likely to cause death of the
above said persons and has committed said act without any excuse for
incurring the risk of causing death or such bodily injuries as aforesaid.
Therefore, I have banked on clause nos.1 to 4 of sec.300 of I.P.C. in
gathering intention and knowledge of the accused in committing the
above said crime, in the above said manner. Thus, it is clear that in
view of my finding on point nos.1 to 7 in the affirmative, prosecution
has discharged burden in proving the guilt of the accused beyond
reasonable doubt on all the heads of charges.
101] Such being the fact, the Ld.defence Advocate has made an
attempt to point out that eye witness Sharif Ibrahim Kutti who had
witnessed the entire incident , pointed out all the crime scenes as
61 S.C.275/2012
indicated in the map Ex.113 to the police, hence, panchanamas
thereof were prepared but said witness has not been examined in
order to suppress truth. However, as all the crime scene panchanamas
Ex.26 to 40 are admitted by the defence, I do not find any force in the
above said submission.
102] In this regard, sec.134 of Evidence Act speaks that
evidence has to be weighed and not to be counted. Hence, on this
score also, the submission cannot stand in order to create doubt about
the evidence of prosecution witnesses, as their evidence found tobe
quite natural, spontaneous and trustworthy.
103] In this context, evidence of all the eye witnesses, viz.P.W.5
to 14, 22 along with police witnesses, who have actually witnessed the
incident, speaks that the accused had intentionally and knowingly
driven the bus indiscriminately knowing that it is so imminently
dangerous that it must in all probability, cause death or such bodily
injury as is likely to cause death and committed such act without any
excuse for incurring the risk of causing death or such injuries to the
above said persons and to the deceased.
104] In order to ascertain, whether case comes within the ambit
of Sec.84 of I.P.C., I find it desirable to take into stock the mandate of
ratio in the case of Surendra Mishra Vs.State of Jharkhand A.I.R.
2011 S.C.627 wherein,it has been held that expression unsoundness of
mind has not been defined in I.P.C. When accused seeks exoneration
from criminal liability of an act u/s 84 IPC, should prove legal
insanity and not medical insanity. Hence, it has been held that every
62 S.C.275/2012
person,who is suffering from mental disease,is not ipso facto exempted
from criminal liability. The mere fact that the accused is conceited odd,
irascible and his brain is not quiet all right or that the physical and
mental ailments,from which,he suffered,had rendered his intellect
weak and affected his emotion or indulges in certain unusual acts,or
had fits of insanity, at short intervals or that he was subject to epileptic
fits and there was abnormal behaviour or the behaviour is queer are
not sufficient to attract the application of sec.84 of I.P.C. The facts in
the said ratio and the facts of the present case are similar as to the
defence set up by the accused u/s 84 of I.P.C.
105] The ratio in the case of Bhikari Vs.State of U.P. A.I.R.1966
S.C.1 speaks that sec.84 I.P.C can be invoked by the accused for
nullifying the evidence produced by the prosecution. However, he has
to establish that he was at the relevant time incapable of knowing the
nature of the act or that what he was doing was either wrong or
contrary to law. Further, it has been held that every person is
presumed to know natural consequences of his act. Similarly, every
person is also presumed to know the law. Therefore, accused has to
discharge burden according to sec.105 of Evidence Act, to bring the
case within the ambit of Section 84 of I.P.C. However, in the case,
accused has failed to discharge burden accordingly.
106] In the case of Jai Lal Vs.Delhi Administration A.I.R. 1969
S.C.15, it has been held that the question whether the accused was
suffering from such incapacity at the time of commission of the act,
before and after the act, has to be considered. However, when accused
found normal and had given intellectual answers on the same date,he
63 S.C.275/2012
was produced before the Magistrate, in presence of his relative, and
Magistrate was not informed that accused was insane, then, later on, if
the defence of insanity is taken, it can be said to be just an
afterthought. Similar is the position in the case at hand, as when on
26.1.2012, the accused was produced before the Magistrate, he has
not raised the plea of his insanity and having had committed the
act,when he had suffered attack of insanity. In addition, when he was
examined by doctors P.W.27 to 29, he has narrated the history of road
traffic accident, by driving the S.T. bus No.MH14BT1532. In
addition, he has disclosed his name,address and occupation. Hence,
the above said evidence has belied the defence.
107] In the case of Meh Ram Vs.State of Rajasthan 1994
Cri.L.J.1897, it has been held that when plea of insanity was raised by
the accused in consonance with section 84 of I.P.C., it was desirable to
take into account conduct of the accused at the time of the incident,
after the incident. Such exemption is allowed only where the insane
person is incapable of knowing the nature of the act, or that he is
doing what is either wrong or contrary to law. This section lays down
the legal test of responsibility in cases of alleged unsoundness of mind.
It will suffice to mention that every type of insanity is not legal
insanity, the cognity must be so destroyed, as to render him incapable
of knowing the nature of the act or that what he is doing is wrong or
contrary to law. The Court shall presume the absence of such
insanity ,however, the presumption is rebuttable. Hence, court must
consider, whether the accused suffered legal insanity at the time when
offence was committed and in reaching such a conclusion, the
circumstances which preceded, attended or followed by the crime, are
64 S.C.275/2012
relevant considerations. When the prosecution in discharging its
burden in the face of the plea of the legal insanity, has merely to prove
the basic fact and rely upon the normal presumptions of law that
everyone knows the law and natural consequences of his act. Hence, it
has been concluded in the said ratio that to establish defence of
insanity, it must be clearly proved that at the time of committing the
act, the accused was labouring under such defect of reason from
disease of the mind as not to know the nature and quality of the act,he
was doing or if he did know it, that he did not know he was doing
what was wrong or contrary to law. Thus, considering the conduct
and act of the accused, he has failed to bring the case within the ambit
of Section 84 of the I.P.C.
108] On the above background, I have to consider defence
evidence of D.W.1 Dr.Burte. From the tenor of the evidence of this
witness, it is crystal clear that on 19.2.2010, when the accused had
been at his clinic, he had noticed that accused had disturbed sleep,
habit of eating less, palpitations, he had ideas of persecution, as he
had heard voices in ear, he was in mood of sadness with suicidal ideas
at a times, hence was instructed to visit again after fortnight. In the
cross examination, when he was confronted with the documents of
Ex.197 to 199 with the documents supplied by him to the police, of
Ex.210 and 211, he has been compelled to admit that only
once,accused had been in his clinic on 19.2.10 and thereafter, the
accused never had visited his hospital for treatment or for any other
purpose.
109] In this regard, the documentary evidence of Ex.197 to 199,
65 S.C.275/2012
if compared with the admitted documentary evidence of Ex.210 and
211, it speaks that Ex.198 came tobe prepared later on to suit the
defence. The Ex.197 if compared with its copy Ex.211, it speaks that
the reverse page thereof is blank but the reverse page of Ex.197
speaks that the said eminent psychiatrist had examined the accused on
19.2.10, 22.2.10, 25.2.10, 1.3.10, 4.3.10, 12.3.10 and 22.4.10. Thus,
on the basis of this documentary evidence, the evidence of D.W.1
Dr.Burte came tobe falsified in toto. If really, he would have an
occasion to examine the accused, except on 19.2.2010, then,
definitely,he would not have made statement before the media that
accused was only once medically examined by him in his clinic on
19.2.2010 and thereafter, despite the medical advice, accused never
had been in his clinic.
110] The falsity of the defence evidence can also be checked on
the basis of Ex.85 ,which is the leave application and medical
certificate submitted by the accused for claiming medical leave of one
month from 19.2.10 to 19.3.10. In support of the said application, he
has relied on the medical certificate issued by Subodh Clinic of
Dr.Vikas Gavli. It speaks that during the said period, accused had
suffered from viral hepatitis and therefore,he could not attend the
duty but he was reported fit to attend duty w.e.f. 18.3.10. Thus,it is
crystal clear from the documentary evidence that by taking undue
advantage of the above said medical leave availed by accused, by
using intelligent brain, defence evidence about the further medical
examination of the accused barring on 19.2.10 came tobe created only
with oblique motive to bring the case within the ambit of sec.84 of
I.P.C. Thus, the above said documentary evidence has falsified the
66 S.C.275/2012
defence in toto.
111] Now, I have to deal with the admissions given by the said
psychiatrist Dr.Burte. He has deposed that electro convulsion test in
respect of the accused was conducted on 19.2.10, 22.2.10, 25.2.10,
1.3.10, 4.3.10, and 12.3.10 as indicated in the Ex.197. Keen perusal of
Ex.197 speaks that it is totally silent about above said test was
conducted on the above said dates. So far as consent of the patient or
his relative for the above said test, Ex.199 has been relied. It bears the
date 19.2.10 but there is no specific mention on the above said date
E.C.T. therapy was applied in respect of the accused with the consent
of the accused himself or his family members. Thus it is eloquent from
Ex.199 that empty formalities are completed to make pompous show
that consent of the patient or his relative was sought for E.C.T. Indeed,
the above said admission of D.W.1 that only once,accused was treated
by him in his clinic on 19.2.10, falsifies his evidence about E.C.T
therapy was applied to the accused on the above said dates.
112] From the conduct of the said psychiatrist,it is clear that he
has no little regard of truth and law. Even he appears to have shown
ignorance about the basic provisions of Mental Health Act 1987.
Likewise, he appears to have not followed the due procedure in
conducting psychiatric test, psychiatric evaluation test of the accused
and maintaining record thereof. Therefore, non maintaining record
speaks in volume that the said defence witness had intention to
suppress material facts from the court. Pursuance thereto, he appears
to have developed the defence evidence afterthought as per the
suggestion of accused. Pursuance to the said obligation, he appears to
67 S.C.275/2012
have stepped in the witness box to depose falsehood. Consequently,
he came to be exposed as lie teller.
113] So far as the register maintained by the psychiatrist, it is
clear that pages of the register are not in order. Therefore, it is clear
that entries in the register are made later on only to suit the defence of
the accused. Due to the said reason, the paging of the register found
tobe in disorder. The said witness could not overcome this situation,
having knowledge that register has been manipulated by him. Thus,
from his own evidence and more particularly, on the basis of
documentary evidence of Ex.197 to 199 compared with Ex.210 and
211, it is clear that he had created false record about having had
provided medical treatment to accused after 19.2.10. On this plight, I
find it desirable to call the explanation of said witness as to why he
should not be prosecuted for creating and leading false evidence, in
order to mislead and thereby practice fraud on Court.
114] Now, I have to turn to the other defence witness Shivanand
Shete. The said witness also found tobe sailing in the same boat like
D.W.1. He has produced medical bills vide Ex.203 to 209 about tablets
as prescribed by D.W. 1 to the accused, were purchased by the accused
from his shop viz.Tab Tividol 5, Phendy 2, Tikoprex 500, Tab.Olanete
10, Orimet 25, Nitease 10, and Polybion injection. On close scrutiny of
the said receipts and more particularly, Ex.205, it is revealed that Tab
Oripro was never prescribed by D.W. 1 and there was no reason to this
witness to sell the said drug to the accused without prescription. Same
is the position about the bill Ex.207 as there is no prescription thereto
issued by D.W.1. Likewise,same is the position about medicine sold
68 S.C.275/2012
vide receipt Ex.209. Therefore, the evidence of D.W. 2 coupled with
the above said receipts about sale of above said medicines found tobe
of no help to substantiate the defence.
115] Now, I have to take into stock conduct of the accused by
considering the remand reports of the accused when he was first time
produced before the concerned Magistrate. First remand report
dt.26.1.12 speaks that accused has not made any complaint of ill
treatment at the hands of police. It is clear that on the said date,
accused was not represented by advocate. He was remanded to P.C.R.
till 3.2.2012. Second remand report dt.28.01.12 speaks that on the
premise of mental sickness claimed by the accused before one doctor
of Sassoon hospital, P.C.R. was curtailed and he was taken to judicial
custody and was sent to 10 days observation in Mental Health
hospital,Yerawada and accordingly, w.e.f. 28.1.12 to 6.2.12, he was
under observation for 10 days. This circumstance speaks in volume
that prosecution did not hide anything and therefore, preferred to
send the accused for 10 day's observation.
116] About 10 days observation of the accused in Mental Health
Hospital,Yerawada, evidence of P.W. 31 Medical Superintendent of the
said hospital, the psychiatrist Dr.Donglikar found tobe of paramount
consideration. It is eloquent from the evidence of this witness that he
himself and other team of doctors Mrs.M.R.Bahale, Dr.S.B.Gadekar,
Dr.H.U.Pendse had observed conduct of the accused, had maintained
daily chart and finally, came to the conclusion that there was no
symptom of insanity in the accused during the 10 days observation.
Thus, the said psychiatrist who is in the field since the year 1994, has
69 S.C.275/2012
categorically deposed that no abnormality has been found with the
accused. The report Ex.147,148 speaks that the accused has
maintained eye to eye contact, he was anxious but guarded,
appropriate, reaction time increased, speech was non spontaneous,
relevant, coherent, mostly answering in single word, was guarded
many times while talking. His answers were non consistent and non
elaborate .
117] So far as thinking, it has observed that no formal thought
disorder was found. He has denied about persecutory ideas. So far as
perception, it has been observed that patient was reported on and off
hearing of voices but his responses were non consistent. There was no
manic features. It has been observed that judgment was intact and
sight was partial. Thus, said panel doctors had observed that in their
opinion , the findings were not sufficient to diagnosis a major
psychiatric illness in the accused at that time. Thus, the final report
speaks that there was no major psychiatric illness in the accused . The
said doctor has deposed that accused spoke about persecutory ideas by
saying that somebody had played black magic (karni) but it does not
fall within the category of delusion and hallucinations. He has deposed
that such persecutory ideas always based on cultural belief of the
concern. Thus, the said doctor and other panel doctors have opined
that the accused was not having any psychiatric ailment so as to claim
benefit of sec.84 of I.P.C.
118] Thus, balancing the prosecution and defence evidence, it
is crystal clear that evidence of the prosecution speaks about previous
conduct of the accused, conduct on the date of incident and conduct
70 S.C.275/2012
after the incident. Therefore, I have to fall back to the landmark ratio
of Hon'ble Apex Court in the case of T.N.Lakshmaiah Vs.State of
Karnataka 2001 DGLS (Soft) 1292 which speaks that entire conduct
of the accused from time of the commission of offence upto the time
the Sessions proceeding commenced is relevant for the purpose of
ascertaining as to whether the plea raised of insanity was genuine or
afterthought. Again in the landmark ratio in the case of Bapu @ Gajraj
Singh Vs.State of Rajasthan 2007 DGLS (Soft) 1312, the Hon'ble
Apex Court has held that mere abnormality of mind or partial delusion
irresistible impulse or compulsive behaviuor of psychopath affords
cannot extend protection of sec.84. Consequently, accused cannot be
permitted to take benefit of sec.84. Hence, considering the said
landmark ratios and conduct of the accused prior to the incident, on
the date of incident and after the incident, it is crystal clear that
defence of insanity has been falsely taken in order to bring the case
within the ambit of sec.84 of I.P.C. On this premise, the defence
witness Dr.Burte came tobe exposed in cross examination, hence, he
has admitted that only once on 19.2.10 accused was treated by him in
his clinic situate at Solapur. Thus, from the entire evidence and overall
conduct of the accused, it is crystal clear that he has failed to bring the
case within the ambit of Sec.84.
119] Such being the fact, the Ld.defence Adv.has invited my
attention on the following old pronouncements:
1] Geron Ali Vs.Emperor 42 Cri.L.J.379(1941).
2] Unniri Kannan Vs.State A.I.R. 1960 Kerala 24.
3] Balu Ganpat Koshire Vs.State of Maharashtra 1983 Cri.L.J. 1769
71 S.C.275/2012
(Bombay)
4] Shriram Vs.State of Maharashtra 1991 Cri.L.J.1631 (Bombay)
5] Prakash Vs.State of Maharashtra 1985 Cr.L.J.196 (Bombay)
6] Motiram s/o Maroti Dhule Vs.State of Maharashtra(2002)2
B.Cr.C. 917 (Bombay)
7] Shrikant Anandrao Bhosale Vs.State of Maharashtra 2003(1)
B.Cr.C. 242 (S.C. )
120] The first ratio speaks that the accused was having
persecutory ideas about he having disciple of Pir and under that
persecutory ideas committed murder and devoted the head to the Pir
and therefore, he was held tobe of unsound mind at the time of
commission of the crime, and thereby benefit of sec.84 I.P.C. came tbe
given to the accused in the above case. The second ratio speaks about
chronic epileptic attacks of insanity suffered by the accused and under
that attack, murder of mother has been committed by the appellant,
without running away from the spot and remaining in stubborn
condition by possessing the arm used in the commission of murder of
his mother.
121] The third ratio speaks that there was previous history of
the accused of his unsound mind, therefore,there was defence
evidence of 7 defence witnesses, including psychiatrist and more
particularly relative of accused,who spoke about accused was of
unsound mind and in that state of mind,he having had committed
murder of his wife and son who had returned from the relatives of the
appellant,hardly one month ago due to difference of opinion, hence,it
has been held that under such circumstances, case was within the
72 S.C.275/2012
ambit of sec.84,hence,benefit thereof was given to appellant/accused.
122] From the ratio of Sriram Vs.State of Maharashtra cited
supra, it is crystal clear that the insanity was so severe,therefore, the
appellant does not know the consequence of the act, therefore,
Hon'ble High court has held that there was no mensne rea in
committing crime,when it was committed and therefore,benefit of
sec.84 came tobe extended.
123] In the case of Prakash Vs.State of Maharashtra cited
supra, the appellant was severely suffering from chronic schizophrenia
and therefore,he had committed the act under mental disorder,hence,it
has been held tobe within the ambit of sec.84 of I.P.C..
124] However, the facts of the above said cases found tobe
different from the facts of the present case. In the case at hand, no iota
of evidence that prior to the incident,which did take place on
25.1.2012, accused had suffered from any attack of insanity,
thereby,he was incapable to know the consequences of his act,
therefore,he was treated by the psychiatrist and there was advice not
to drive any vehicle.
125] Unfortunately defence has not examined family members
of the accused who could have spoken much about ailment suffered by
accused and more particularly about attacks of insanity or
hallucinations and delusions suffered by the accused, thereby, he was
not knowing the consequences of the act done by him at the time of
commission of the crime. In this regard, the defence evidence found
73 S.C.275/2012
tobe tainted with interest, based on afterthought, untrustworthy and
false. Consequently, the ratios relied by the defence being based on
different facts, found tobe of no help to the accused.
126] On this plight, I have to fall back to the evidence of
Ex.85,which speaks that from 19.2.10 to 19.3.10,accused had availed
medical leave as he had suffered from viral hepatitis. Therefore, no
evidence has been placed on record about previous mental disorder of
the accused and treatment thereto was provided by D.W.1 Dr.Burte. In
addition, there is no evidence that on the date of incident, by reason
of unsoundness of mind, the accused was incapable of knowing the
nature of act or that he was doing, what was either wrong or contrary
to law. Thus, it is clear that there is no legal evidence to bring the case
within the ambit of Sec.84 of I.P.C.
127] The last ratio in the case of Shrikant Anandrao Bhosale
Vs.State of Maharashtra,cited supra of Hon'ble Apex Court speaks
that the accused was police constable, hit his wife with grinding stone
but did not run away from the spot of offence, there was family history
of psychiatric illness of the accused, he was treated 2 years before the
incident for paranoid schizophrenia. He was hospitalised on 25
occasions but there was no improvement in his ailment,hence,it has
been held that he has case u/s 84 and therefore, benefit thereof came
tobe given. Hence, now, question crops before me, whether the case of
the accused on the basis of said ratio, falls in the exception carved out
u/s 84. In the case at hand, it is proved fact that only once on
19.2.2010,accused was treated by Dr.Burte. Besides the above
evidence,there is no evidence whatsoever to prove that after
74 S.C.275/2012
19.2.2010, accused had taken medical treatment as he was suffering
from hallucinations and persecutory ideas by hearing voices of
somebody in ear. Thus, it is clear that the facts of the said ratio are
altogether different from the facts of the present case. Hence, the said
ratio also found tobe of no help to the accused.
128] On this background, I find it desirable to consider the ratio
in the case of State of Maharashtra Vs.Sindhi @ Raman s/o Dalwai
(1987 ) 89 BOMLR 423 relied by the prosecution. In the said
landmark ratio, it has been held that a person may be suffering from
some form of insanity,recognized by doctors as such, but that form of
insanity may not necessarily be the unsoundness of mind as
contemplated by sec.84 of I.P.C.. If despite the insanity, which the
doctor may find,in a particular person, that person is able to recognize
the nature and the quality of the act for which, he is tried or if he is
capable of knowing that what he was doing was either wrong or was
contrary to law, then, the benefit of sec.84 I.P.C. naturally would not
be available to him.
129] Said ratio found tobe at par with the conduct of the
accused, facts and evidence produced on record by the prosecution
and the defence. Thus,it is clear that person may suffer from attack of
insanity, in intervals but after that interval,he behaves like a sane
person and if under such circumstances, he commits any act, knowing
the act being wrong or contrary to law or against the morality, then
definitely, such act cannot fall within the ambit of sec.84 of I.P.C . In
this regard, considering the Mcnaughten Rules also, it is crystal clear
that simple case of sickness on the premise,accused having persecutory
75 S.C.275/2012
ideas,suffering from hallucinations, hearing voice in ear ,does not
necessarily tantamount to legal insanity, though it may be temporary
insanity in the view of psychiatrist. The case of the accused found tobe
not following any of the categories, apart from he having had suffered
any attack of insanity in past and more particularly, on the date of
incident.
130] In consonance with the requirement of section 84 I.P.C., if
overall conduct of the accused in driving the bus just like a gentle
driver till the 7.30 a.m. of 25.1.12 is considered, it depicts that he has
not invited any complaint in driving the bus,nor he has picked up
quarrel with any passengers or any driver or public. Therefore, the
very fact speaks that he has discharged night out duty on 23rd and
24th Jan.2012 by driving the bus from Swargate to Gangapur and
back without any disturbance and without giving scope to anybody to
make grievance about driving the bus on any of the grounds. It is also
eloquent that on the said dates, the accused and P.W.2 conductor had
enjoyed refreshment, lunch, dinner and sound sleep in the bus No.MH
14BT0717 at Gangapur.
131] In the above regard, the conduct of the accused needs tobe
assessed on the basis of evidence of P.W.3 Rajendra Gaikwad
Asstt.Traffic controller, P.W.4 Balasaheb Sarode, P.W.23 Shashikant
Damkale. It is eloquent from the evidence of P.W. 3 that night out duty
from Swargate to Waduste was assigned to the accused in the evening
of 24.1.12 when the accused and the P.W.2 returned back by the bus
No.MH14BT0717 from Gangapur .Thus, on 25.1.12,accused was to
drive bus from Swargate to Waduste and to discharge night out duty.
76 S.C.275/2012
In this context, the evidence of PW 23 Damkale,the traffic controller of
S.T. Depot, speaks that on 25.1.12 in the morning,when he was in
allocation room of S.T. depot Swargate, at about 7 to 7.30 a.m.
accused came in his cabin, requested to change his night out duty into
single duty but due to non availability of drivers, the said night out
duty of accused was not changed and thereafter, accused has
withdrawn from the cabin calmly and quietly. Thus,it is clear that till 8
a.m. of 25.1.12,accused was of sound mind gentle driver to drive S.T.
bus. Therefore, I have to take into account which circumstance did
prompt the accused in committing theft of the bus and moving it
indiscriminately.
132] It is eloquent from the service record of the accused, that
he has discharged night out duty, sometimes penalty was saddled to
him about rash and negligent driving, about absenting from duty
without getting leave sanctioned well in advance and damage being
caused to S.T. bus. But fact remains that in his entire service record,
i.e.from 8.8.99 till 24.1.2012, there was no occasion to the accused to
suffer from any psycho ailment, mania, mental disorder,
hallucinations and having persecutory ideas. Therefore, his intention
and knowledge in committing the crime found manifest in teaching
lesson to the P.W.17 Ajit Limaye, P.W.23 Damkale, P.W.24 Diwate Depot
Manager , P.W.3 Rajendra Gaikwad, Asstt.Traffic controller and others,
as they did not accept the request of accused to change his night out
duty to single duty. Thus, after 8 a.m. , when he has departed from the
cabin of Damkale, there was no abnormality, till the accused had
committed the above discussed act and till he was examined by the
P.Ws.27 to 29, the doctors of Sassoon hospital in the A.C.P. crime
77 S.C.275/2012
office,Pune. On the contrary, the accused had narrated history of road
traffic accident to the said doctors P.W.27 to 29. Therefore, it is clear
that for the first time, when accused was in police custody on
28.1.2012, the defence of mental sickness came to be set up at the
instance of psychiatrist of Sassoon hospital, requiring 10 days
observation of the accused in Mental Health hospital. Accordingly, he
was sent for 10 days observation from 28.1.12 to 6.2.12 in Mental
health hospital,Yerawada, Pune. There he was treated by P.W.31 and
above said panel doctors Thus, according to them, no sign of insanity
was found in accused, during the period of 10 days observation and
therefore,there was no case to provide further medical treatment to
accused about his self claimed ailment. Due to the said reason best
known to the accused, he has not set up any plea of having unsound
mind at the time of the incident and also before and after the incident
before any Court. On this plight, he has not prayed for resorting
provisions of Mental Health Act,1987 and of Chapter XXV of Cr.P.C.
133] It is also eloquent from the evidence of all prosecution
witnesses that no suggestion has been given to them that at the time
of incident, the accused was of unsound mind and in the said state of
mind, he did the act of driving the bus and at the time of doing the
said act, by reason of unsoundness of mind, he was incapable of
knowing the nature of the act or that he is doing what is either wrong
or contrary to law. Therefore, no case exists to the accused to claim
benefit of sec.84 of I.P.C.
134] Per contra,on the basis of recent pronouncement of
Hon'ble Apex court in the case of Bapu Singh Vs.State of Rajasthan
78 S.C.275/2012
has also disentitled the accused in claiming benefit of sec.84 of I.P.C.
135] Much has been said by the defence about Investigating
Officer as usual had committed flaws by taking signature of the
witnesses on their handwritten statements recorded u/s 161 Cr.P.C.
No doubt, some of the witnesses have admitted this fact, hence,
attempt was made to point out that handwritten statements of
witnesses came tobe withheld and in its place, beneficial computerized
statements of witnesses came tobe included in the chargesheet. In this
regard, no material has been extracted from the mouth of
Investigating Officer, to support said defence, hence, it cannot be
sustained. So far as signing the statement recorded u/s 161 of Cr.P.C.,
it is clear that it is mere irregularity, which cannot extend any benefit
to the accused.
136] In this regard, law is well settled that if Investigating
Officer did commit any flaw, in carrying investigation in the offence,
then,benefit thereof cannot be extended to the accused. On this
premise, no doubt can be raised in case of evidence of all prosecution
witnesses and more particularly, Investigating Officer. Consequently, I
am not swayed with the submission made by Ld.defence Advocate.
137] Lastly, I have to deal with the documentary evidence of
Ex.140,141 and 142, admitted by the defence. The said documents are
the case papers of the examination of accused on 25.1.12 at 2 p.m.
and on 27.1.12. Ex.140 speaks that accused had narrated the history
that since last 12 years, he has taken treatment for abnormal
experiences, like war is going on , world is going to end, people are
79 S.C.275/2012
going to kill him and hear some voices, not able to tell about them.
Further, he has reported that he had omitted medication since last two
years as he was normal. He reported that since six days, he had
disturbed sleep, feeling of war going on and that all are going tobe
killed. He has also reported that yesterday, he had experience of black
magic, therefore, he felt that people in the world are just like dead
persons ( HkwrkVdhps vuqHko ;sr gksrs] txkrys lxGs esY;klkj[ks okVr gksr s ).
Further,he reported that he had listened sounds of instruments
Mrudung and chinchin sound. He had also reported that he does not
understand anything when he drove and above said accident. It is
observed that he was well oriented to time,place and person,reported
occasionally had consumed alcohol, no detail history of medical illness
was narrated. So far as examination conducted on 27.1.2012, it is
reported that he was conscious,cooperative, communicative,
maintained eye to eye contact ,his psychomoter was normal, mood
was euthymic (normal range of mood), he had thoughts of delusion
and of persecution, delusion about black magic ( dks.khrjh Hkkukerh dsyh
vkgs ), auditory hallucinations, with feeling that somebody is assaulting
to his family members and he has listened sound of it. Thus,it has been
observed that the accused has narrated history about he has enjoying
good sleep, his appetite was disturbed. He has also reported that he
had suffered from psychiatric illness since 3 to 4 years. Further, he has
narrated that on the date of incident, the bus was moved in air but
due to black magic. It is observed that his judgment and insight was
poor. Hence, on the basis of said observation, the defence has made an
attempt in bringing the case within the ambit of sec.84. However, it is
crystal clear from the evidence of P.Ws.27 to 29 that accused had
80 S.C.275/2012
narrated history of road traffic accident. At that time, he was well
oriented as to time,place and person. Therefore, I have to find out,
why the above said history came tobe narrated by the accused
afterward. In this regard, I have to fall back to the evidence of Nodal
officer Chetan More P.W.32 and Datta Angre P.W.33.
138] From the tenor of the evidence of these witnesses, it is
clear that cell phone no.9766708633 having duel SIM, one of Airtel
and other of Vodaphone and the cell phone No.9623069573 were
possessed by the accused and on the date of incident at 12.27 noon,
there was conversation in between the holders of the said two phones
about 144 seconds and the tower location of cell phone
No.9623069573 was from Shelgaon, Barshi,Solapur. It is also eloquent
from the evidence of P.W. 39 that cell phone found with the accused
was having duel SIM card of Airtel and Vodaphone, which has been
seized from accused,when he was arrested and his personal search
was conducted vide Ex.138 drawn in presence of P.W. 30 Dilip Agrawal
and other panch witness. Therefore, the possibility of accused having
had dialogue with the help of above said cell phones and thereby
developing the case,cannot be ruled out, so as to bring it within the
ambit of sec.84. Otherwise, there was no case or plea of the accused of
insanity when he was first time, examined by the P.W.27 to 29 in
between 1.30 to 2 p.m. in the office of A.C.P. crime Branch Pune.
There was no defence of insanity, when accused was produced before
J.M.F.C. for the first remand on 26.01.2012.
139] Hence, again I have to fall back to the ratios in the cases of
1] T.N.Lakshmaiah Vs.State of Karnataka 2001 DGLS (Soft) 1292
81 S.C.275/2012
and 2] Amrit Bhushan Gupta Vs.Union of India 1976 DGLS(Soft)
458(S.C.) , wherein, it has been held that to claim benefit u/s 84, at
the time of the incident or doing the act, by reason of unsoundness of
mind , accused should be incapable of knowing the nature of the act
or that he was doing that act was either wrong or contrary to law. In
the case at hand, it is crystal clear that when the accused had driven
the above said S.T. bus No.MH14BT1532, from Swargate Outgate to
Shankarsheth road, 7 Loves chowk, Solapur chowk, Mahma Devde
chowk, Eastern road, Talera bunglow chowk, Lashkar police station
chowk, then Khanya Maruti chowk, old bus stand, Kasewadi and then,
Shankarsheth road, Swargate ,Volga chowk, Mitramandal chowk and
Mahalaxmi Mandir chowk, he did not suffer from any ailment of
unsoundness of mind as contemplated u/s 84 of I.P.C.
140] On the contrary, from the evidence of eye witnesses P.Ws.
5 to 10, 12 to 14, 15, 16, P.W.17, 18,19, 20, 22 23,24, it is clear that
the bus was driven by the accused with intention to cause death of
pedestrians, passengers , bikers, auto drivers, and more particularly, it
was moved by the accused knowing that it was so imminently
dangerous to the pedestrians, passengers that it must in all the
probabilities, cause death or such bodily injury as is likely to cause
death of the said persons and he committed such act without any
excuse for incurring the risk of causing death or such injury. It is also
crystal clear that by driving the bus in such manner, he has taken lives
of nine persons,caused simple and grievous injuries to 37 persons and
made their life miserable. Therefore, on the basis of observations as
appeared in Ex.140,141 and 142, no benefit can be given to the
accused of sec.84 as at the time of actual commission of the incident,
82 S.C.275/2012
he was of sound state of mind and had driven the bus in the above
said manner. Moreover, it is settled proposition of law that merely on
the plea of having experience of hallucinations, persecutory ideas,
hearing sound, having feeling that war is going on, everybody going to
die, no benefit of sec.84 can be given as the said defence found tobe
nothing but an afterthought. The afterthought of the said defence
stands duly proved on the basis of evidence of D.W.1 Dr.Burte and
D.W.2 Pharmacist Shete. Dr.Burte has admitted that only once,he had
examined the accused on 19.2.2010, thereafter, accused had never
seen his face for any purpose and apart from medical treatment, in the
capacity of psychiatrist. Thus, the defence has been totally falsified on
the basis of documents Ex.197 to 199 and parallel xerox copies thereof
of Ex.210 and 211.
141] It is eloquent from the tenor of evidence of Dr.Burte that
he had no opportunity in applying electro convulsive therapy in
respect of accused at any point of time,as he admitted that for the
above end after 19.2.10,accused never had been in his hospital. Due to
the said reason, Ex.197,198 and 199 found silent. Even the consent
column barring the consent sought on 19.2.2010, either of accused or
his relative, is silent ,as eloquent from Ex.199. It is proved fact that
Ex.211 and 210 are the xerox copies of original exhibits 197 and 198.
Those speak that after 19.2.2010, accused never had been to Dr.Burte
for treatment and therefore, there was no scope to Dr.Burte to treat
the accused. Hence, on this background, only one conclusion can be
drawn, only to come out from the clutches of punishment, false
defence of unsound mind and under state of unsound mind bus driven
by the accused, came to be taken.
83 S.C.275/2012
142] I had taken caution in recording defence statement of
accused u/s 313 Cr.P.C. While answering question No.1 to 66, on
24.1.2013, when defence Adv.had absented, he had given rational
answers to almost all the questions. Therefore, in order to check his
conduct, in view of the landmark ratio of the Hon'ble Apex court to
ascertain overall conduct of the accused throughout the trial , 4
questions were put to him.
Que. Since when you joined duty as bus driver in State Road Transport Corporation?
Ans. Since last 11 to 12 years.
Que. How many times, while driving bus by you, accident did take place?
Ans. Only once, accident did take place by the bus plied by me.
Que. Whether you had tension or frustration at any point of time in driving the ST bus as bus driver before thisincident?
Ans. No.
Que. Whether at any point of time, you find yourself insecure or incapable in driving ST bus, due to the reasons known to you?
Ans. Never.
143] But on the next date, when further defence statement
came tobe recorded, he has replied answers to almost all the
questions 'I do not know'. However, surprisingly enough, the said
person,who claims benefit u/s 84, while answering the question
Que.No.173, has made statement that he wanted to examine himself
84 S.C.275/2012
on oath. While answering question no.174, he has made statement
that he wanted to examine Dr.Dilip Burte of Solapur and proprietor of
Amrut Medical and General Stores Solapur D.W.2. Hence, on this
plight, one can imagine in which manner, mental faculty of accused
did work. Thus,from the entire circumstance, it is crystal clear that
defence about unsound mind on the premise,accused had suffered
from persecutory ideas, hallucinations , hearing sounds, black magic
played by somebody, war is going on or all are going tobe killed, found
tobe based on afterthought. Thus, the defence found tobe nothing but
outcome of afterthought and concoction as eloquent from evidence of
D.W. 1 Dr.Burte.
144] Thus, it is crystal clear that this is the unique and
uncommon case. Thus, considering the direct evidence of P.W. 5 to 10,
12 to 14, 22 coupled with evidence of P.W.3, 15,18,20,23, 24, it is clear
that accused was not of unsound mind while driving the bus as he has
taken utmost care not to stop the bus despite urge made by
P.W.15,P.W.17,18,19,20 and 23. On the contrary, it is eloquent that
when P.W.18 Amar Chavan, P.M.T. bus driver and P.W.20 Bapu Lonkar,
by effecting entry in the cabin of the bus driven by the accused, made
an attempt to stop the bus by applying hand brake, accused assaulted
them, pushed P.W.18 by assaulting, therefore, he fell down on road, in
proximity of front wheel of the bus driven by the accused and
therefore,his life was endangered,but due to grace of God,his life has
been saved. It is eloquent that P.W.20 had effected entry in the cabin of
bus driven by accused, urged him to stop the bus by trying to move
steering of the bus,but accused had assaulted him,tried to push him
down from moving bus so as to endanger his life,bur fortunately,he
85 S.C.275/2012
caughthold cover of the engine of the bus and meanwhile, accused
lost balance in driving the bus,it dashed to the road divider and
vehicles and then,it was stopped. It is also eloquent from the evidence
of the witnesses that after the incident, an attempt was made by the
accused to flee away but it was arrested by Lonkar and by head
constable Tapare and other police,who were present. Hence, under
such circumstances, no benefit of the above said plea taken by the
accused in Ex.140,141 and 142 can be given to him, as it found tobe
mere afterthought saying, without any psychometric test conducted
according to forensic psychiatry by following due process laid down
thereto. It is also admitted fact that no psychological evaluation test
has been carried by D.W.1 or by the doctors, to whom, the accused had
narrated the history of above said afterthought saying about his
experience as to persecutory ideas, hallucinations ,hearing noise and
some black magic being played and thereby,war is going on and all are
going tobe killed, along with his family members. Hence, such saying
cannot take place of evidence unless those are tested on the
touchstone of psychiatric test and psychological evaluation test and
chart thereof. Said evidence has been falsified by evidence of
Dr.Donglikar P.W.31 and reports produced by him Ex.147 1to 149
which speaks that no abnormality was found with accused, during the
course of 10 days observation in Mental Health hospital,Yerwada.
Thus, due to the said reason,the accused appears to have not pressed
into service any provisions of Mental Health Act, 1987. It is an
admitted fact that there was no occasion to resort sec.20 of the said
Act, for claiming reception order of accused,on the premise of his
ailment. Thus, non resort to the said provision speaks in volume that
accused never suffered from unsoundness of mind or any psychiatric
86 S.C.275/2012
ailment, therefore, there was no occasion to resort any of the
provisions of Mental Health Act, 1987.
145] So far as observations made by D.W.1 Dr.Burte, it is clear
that it was very casual on one solitary date of 19.2.2010 and
thereafter, he had no occasion to examine the accused to ascertain his
ailment and to provide medical treatment thereto as admitted by him
in his cross examination. Hence, at no rate, the case can be said tobe
falling within the ambit of sec.84. Therefore, the prosecution evidence
is found sufficient to prove the guilt of accused beyond reasonable
doubt in respect of the offences punishable u/ss 381, 302, 307, 324,
427 of the I.P.C. and u/s 3(2) of Prevention of Damage to Public
Property Act,1984. Accordingly, I held the accused guilty of the
charges levelled against him.
146] However, in view of the ratio laid down in the case of
Allauddin Mian and others Vs.State of Bihar, reported in 1989
S.C.C. (Cri.)490, the requirement of hearing of the accused is
intended to satisfy the rule of natural justice. It is a fundamental
requirement of fair play that the accused who has hitherto
concentrating on the prosecution evidence, on the question of guilt
should, on being found guilty, be asked if he has anything to say or
any evidence to render on the question of sentence.
On this premise, the Judgment is deferred to hear the
accused and the prosecution on the point of sentence.
Dt.03.04.2013 (V.K.Shewale)Addl.Session Judge,Pune.
87 S.C.275/2012
147] Heard learned defence counsel and the Public Prosecutor
on the point of sentence.
148] The learned Public Prosecutor has highly placed reliance in
the case of Machhi Singh and others Vs.State of Punjab AIR 1983
S.C.957(1), in the case of Munwar Shah Vs.State of Maharashtra
1983 S.C.585, in the case of Bachan Singh Vs.State of Punjab AIR
1982 SC 1325(1). Thus, on the basis of the ratios laid down in the
said landmark cases, the learned Public prosecutor has prayed for
treating the case to be rarest of the rare cases, considering aggravated
circumstances are outweighing mitigating circumstances.
149] Now, I have to ascertain mandate of sec.354(3) of
Cri.Pro.Code which speaks that death sentence cannot be awarded
save in the rarest of rare cases, when alternative option is
unquestionably foreclosed. Wording of the said section reflects
legislative command and the condition which needs to be satisfied
prior to awarding the death sentence. While awarding such sentence,
the Court is required to weigh the mitigating and aggravating
circumstances and principle of proportionality of sentence, is also
required to be kept in mind. Whether case falls within the rarest of
rare case or not, has to be examined with reference to the facts and
circumstances of each case and on finding the case tobe rarest of rare,
the Court is justified in awarding death penalty which is on the Statute
Book. As back as in the year 1974, the Hon'ble Apex Court in the
matter of Ediga Anamma Vs.State of A.P. A.I.R.1974 S.C.799 has
observed thus:
88 S.C.275/2012
“Deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime”
Further, it has been observed that
“Horrendous features of the crime and the hapless and helpless state of victim, steel the heart of law for the sterner scheme”
150] What is the rarest of the rare case is a concept difficult to
define and no straight jacket formula can be applied for enumeration
of rarest of rare case. However, the Hon'ble Apex Court in the matter
of Bachan Singh Vs.State of Punjab A.I.R. 1980 S.C. 898, has laid
down the guidelines on this aspect which can be summarised as under:
a] The extreme penalty of death may be inflicted in gravest
cases of extreme culpability,
b] While imposing death sentence, the circumstances of
the offender are also required to be taken into consideration along
with the circumstances of the crime.
c] Death sentence be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to
the relevant circumstances of the crime, and,
d] Extreme penalty can be imposed after striking the
balance between aggravating and mitigating circumstances found in
the case.
89 S.C.275/2012
Aggravated circumstances include :
a] If the murder has been committed after previous
planning and involves extreme brutality, or
b] If the murder involves exceptional depravity.
Mitigating circumstances include
a] That the offence was committed under the influence of
extreme mental or emotional disturbance
b] The age of the accused. If the accused is young or old,
he shall not be sentenced to death .
c] The probability that the accused would not commit
criminal acts of violence as would constitute a continuing threat to
society.
d] The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the accused does
not satisfy the conditions (c) and (d) above.
e] That in the facts and circumstances of the case, the
accused believed that he was more justified in committing the offence.
f] That the accused acted under the duress or domination
of another person .
g] That the condition of the accused showed that he was
mentally defective and that the said defect impaired his capacity to
appreciate the criminality of his conduct.
151] The above guidelines were followed in Macchi Singh and
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Others Vs.State of Punjab, 1983 S.C. 957 by holding that death
sentence could be imposed only in rarest of rare cases. When the
collective conscience of the society is so shocked that it would expect
the holders of judicial power to inflict the death penalty, irrespective of
their personal opinion, as regards the desirability or otherwise of
retaining death penalty as a sentencing option. The following are the
circumstances given by Hon'ble Apex Court in the case of Macchi
Singh in which the case can be treated as rarest of rare, for imposing
capital punishment by entertaining such sentiment of the community.
1] When the murder is committed in extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse
intense an extreme indignation of the community.
2] When murder is committed for a motive which evinces
total depravity and meanness, e.g.murder by hired assassin for money
or reward or cold blooded murder for gains of a person visavis whom
the murderer is in a dominating position or in a position of trust, or
murder is committed in the course for betrayal of the motherland.
3] When the crime is enormous in proportion. For instance,
when multiple murders, say of all or almost all the members of a
family or larger number of persons of a particular caste, community or
locality are committed.
4] When the victim of a murder is an innocent child or a
helpless woman or old or infirm person or a person visavis whom the
murderer is in a dominating position or a public figure,generally loved
and respected by the community.
152] The Hon'ble Supreme Court has however cautioned that
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full weightage must be accorded to the mitigating circumstances in a
case and a just balance had to be struck between aggravating and
mitigating circumstances.
153] The Hon'ble Apex Court in the case of Devender Pal Singh
Vs.State of N.T.C. of Delhi, A.I.R 2002, S.C.1661 and Atbir Vs.Govt.of
N.T.C. of Delhi A.I.R 2010 S.C. 3477 has held that death sentence
may be warranted, when the murder is committed in an extreme
brutal manner or for a motive,which evinces total depravity and
meanness. Further, it has been held that death sentence can also be
justified when the crime is enormous in proportion or when the victim
of murder is an innocent child or a helpless woman or a old and infirm
person or a person whom the murderer is in a dominating position.
Thus, the Court is required to follow the rule of proportionality
considering the circumstances of the case in providing punishment
according to the culpability of each kind of criminal conduct keeping
in mind the effect of inadequate punishment on the society. In the case
of Aqueel Ahmed Vs.State of U.P. A.I.R.2009 S.C.1272, Hon'ble Apex
Court has ruled out that even in the case of single victim, death
sentence can be awarded taking into consideration the circumstance of
the case.
154] On this premise, it is apt to quote observations of Hon'ble
Apex Court in the case of Shivaji @ Dadya Alhat Vs.State of
Maharashtra A.I.R.2009, S.C.56, wherein, it is held in para.25,26,30
and 31 that
“The law regulates social interests arbitrates conflicting
claims and demand. Security of persons and property of
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the people is an essential function of the State. It could be
achieved through instrumentality of criminal law.
Undoubtedly, there is a cross cultural conflict , where living
law must find answer to the new challenges and the courts
are required to mold the sentencing system to meet the
challenges. The contagion of lawlessness would undermine
the social order and lay it in ruins. Protection of society
and stamping out criminal proclivity must be the object of
law which must be achieved by imposing appropriate
sentence. Therefore, law as a corner stone of the edifice of
“order” should meet the challenges confronting the society.
Fridman in his 'law in changing society' stated that State of
Criminal Law continues to be as it should be a decisive
reflection of social consciousness of society. Therefore, in
operating the sentencing system, law should adopt the
corrective machinery or the deterrence based on factual
matrix. By deft modulation, sentencing process be stern
where it should be, and tampered with mercy, where it
warrants tobe. The facts and given circumstances in each
case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the
crime, the conduct of the accused, the nature of weapons
used and all the attending circumstances are relevant facts
which would enter into the area of consideration. If
murder is committed due to deep seated mutual and
personal rivalry may not call for penalty of death but an
organized crime or mass murders of innocent people
would call for imposition of death sentence as
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deterrence.”
155] On this plight, in the case of Mahesh Vs.State of M.P.
(1987)2 S.C.R. 710, the Hon'ble Apex Court has refused to reduce the
death sentence by observing that :
“It will be mockery of justice to permit the accused to
escape the extreme penalty of law, when faced with such
evidence and such cruel acts. To give the lessor
punishments for the accused would be to render the
justicing system of the country suspect. The common man
will loose faith in Courts. In such cases, he understands
and appreciates the language of deterrence more than
reformative jargaon.”
Therefore, undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine
the public confidence in the efficacy of law and society
would not long endure under such serious threats. It is
therefore, the duty of every Court to award proper
sentence having regard to the nature of the offence and the
manner in which it was executed or committed.”
156] In the case of Jashubha Bharatsinh Gohil Vs.State of
Gujarat (1994)(4) S.C.C.353 , it has been held that :
“In the matter of death sentence, the Courts are required to answer new challenges and mold the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed
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object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has tobe stern where it should be.”
157] Thus, it is clear that duty is cast upon the court to respect
to the society's cry for justice, against the criminals by imposing
punishment befitting the crime so that courts reflect public abhorrence
of the crime.
158] Now, let us examine whether the case at hand falls under
the category of rarest of the rare case and if the answer is in the
affirmative, what are the special reasons for awarding death sentence.
The passing of the sentence of death must elicit the greatest concern
and solicitude of the Judge because that is one sentence which cannot
be recalled. It is already held that the accused had committed the
offences punishable u/ss 381,302,307,324,427 of the Indian Penal
Code by committing murder of nine persons and causing grievous and
simple injuries to 37 persons, by driving the ST bus No.MH14BT
1532 indiscriminately, intentionally and knowingly that it is so
imminently dangerous that it must in all probability, cause death or
such bodily injury as is likely to cause death and committed such act
without any excuse for incurring the risk of causing death and such
bodily injuries as is likely to cause death of the above said 37 persons.
159] Further, it is held that when the bus was stolen and moved
out of the outgate of Swargate S.T.Depot and thereafter, on all the
spots of offences, the superior of the accused Ajit Limaye(P.W.17), the
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witness Amar Chavan (P.W.18),PMT bus driver, P.W.19Shivaji Tapare
Head constable, P.W.20Bapu Lonkar and P.W.23 Shashikant Damkale,
had requested the accused in the beginning , in the middle of the
incident and before the last incident, to stop the bus as it has caused
death of many more persons, caused injuries to many passengers,
pedestrians, riders, pillion riders of bikes, scooters, auto drivers,
passengers travelled by the autos, drivers of 4wheeler vehicles and
occupiers. However, the accused did not stop the bus but expressed
fury against the said witnesses by pushing down Amar Chavan from
the moving bus when he tried to stop the bus by applying hand brake,
accused had assaulted him and pushed him from the moving bus and
thereby endangered his life, as he fell down in the proximity of the
front wheel of the moving bus. It is also held that then, other witness
Shivaji Tapare through public call made such attempt but it was also
made futile by the accused. It is held that the star witness Bapu Lonkar
had entered in the driver's cabin of the bus by using ladder and
effecting entry through window No.8, caughthold steering wheel of
the bus, requested the accused to stop the bus saying that, 'why are
you killing many persons?, thereon, accused retorted that this
witness has no business to say anything thereto, thereby tried to
push Lonkar from the moving bus by giving him assault by his one
hand by endangering his life also. Fortunately, he had caughthold the
cover of the engine of the bus and could save his life from violent act
of the accused.
160] Further, it is held that according to clause 4 of Sec.300
I.P.C., initially the accused has committed the act by indiscriminately
driving the bus knowing that it is so imminently dangerous that it
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must in all probability, cause death or such bodily injury as is likely to
cause death and committed said act without any excuse for incurring
the risk of causing death of nine persons and such injuries to 37
persons, as is likely to cause their death, by making an attempt to
commit their murder . Hence, it is held that when the accused was
instructed by the said witnesses at all the stages from the initial stage
in arresting massacre and menace, by stopping the bus, but he did not
stop it, on the contrary, had assaulted P.W.18 and 20 by making an
attempt to endanger their lives, by pushing them from the moving bus,
resultant upon, P.W.18 fell down from the moving bus in proximity of
its front wheel, but due to grace of God, could save his life. Thus, at
the initial stage, the above said knowledge as contemplated under
clause 4 of Sec.300, had worked which afterwords merged in
prominent intention in committing crime in the above said manner in
sheer disregard of the instructions given by the above said witnesses to
arrest further menace and massacre. Thus, it is held that on the basis
of such evidence, case squarely falls under clauses 1 to 4 of Sec.300 of
I.P.C.
161] On the above background, I have to draw balance sheet of
aggravating and mitigating circumstances of the crime.
AGGRAVATING CIRCUMSTANCES
Conduct of the Accused:
1] The accused is public servant being bus driver attached to
S.T.Depot, Swargate Pune since 1999. Consequently, he is well aware
about provisions of Motor Vehicles Act and traffic rules. He was also
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aware about evil consequences of driving the bus in sheer breach of
traffic rules. That he has discharged duty as bus driver by discharging
night out duty till 24.01.2012 till 6.30 p.m. Thus, till the said time,
there was no grievance of the accused about he is suffering from
disturbed sleep, less eating, persecutory ideas. Hence, he has no
justification to claim single duty from night out duty .
2] That on 24th and 25th Jan.2012, night out duty was
allotted to the accused by P.W.3 Rajendra Gaikwad to move the bus
from Swargate to Waduste and back . That on 25.01.2012 in between
7 to 7.30 a.m., the accused had been in the cabin of Shri Damakale,
the traffic controller (P.W. 23) and requested him to change his above
said night out duty from Swargate to Waduste but his request was not
considered due to administrative problem.
Motive and knowledge:
1] After the accused derived knowledge that his night out
duty has not been changed by his superior P.W.23 at about 8.05 a.m.,
the accused had committed theft of the S.T.bus No.MH14BT1532 out
of the possession of its regular driver Santosh Hendre and by moving
the said bus indiscriminately in sheer breach of all the traffic rules,
dashed to pedestrians and passengers in front of the Swargate
Outgate, hence, he was instructed by his SuperiorP.W.17 Ajit Limaye,
not to do so but accused did not pay heed thereto.
2] That thereafter, P.W.18 Amar Chavan PMT driver entered in
the cabin of the bus driven by the accused, urged him to stop the bus
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but the accused did not pay heed, hence, said witness tried to stop it
by applying hand brake, but the accused had assaulted him and
pushed him from the moving bus and thereby endangered his life as
he fell down in the proximity of the front wheel of the moving bus.
Manner of commission of crime with intention and knowledge. (According to clauses 1 to 4 of Sec.300 I.P.C.)
1] That the knowledge of the accused as contemplated under
clause 4 of Sec.300 I.P.C. has merged in prominent intention of the
accused in committing murder as contemplated under clauses 1 to 4 of
the said section. Thereafter, witness no.19 head constable Tapare had
also instructed the accused with the help of public, to stop the bus to
arrest further menace and massacre but he did not pay heed.
2] Lastly, the P.W.20 Bapu Lonkar at the cost of his life, had
entered in the cabin of the bus driven by the accused, informed him
that he has killed many persons and killing others, hence, asked him to
stop the bus but the accused retorted him ,he has no business to say
anything thereto to him, still then, the witness caughthold steering of
the bus , then the accused by one hand assaulted him and made an
attempt to push him from the moving bus. Fortunately, he has caught
hold the cover of engine of the bus and due to the said reason, the
accused has lost control over the steering of the bus, it has dashed to
road divider and then to other vehicles and then,ultimately stopped.
3] The said evidence speaks in volume that the accused had
committed murder of above said nine persons in extremely brutal,
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revolting and dastardly manner so as to arouse intense and extreme
indignation of the community and society.
4] Personality of victims:
1] That death of Puja, age 19 years, has been caused by
giving dash to the Scooty with intention and knowledge that thereby
death was inevitable. The said Puja was student of Dental college.
2] So far as death of Akshay Pise, age 20 years, it is clear that
his bike was dashed by the bus driven by the accused and dragged
from Mitramandal chowk to Patil Plaza, about 100 ft. along with
Akshay Pise, thereby he along with his bike was crushed.
3] That unfortunate Shubhangi More, age 35 years, the wife
of P.W.1, in the morning of the fateful day of incident, had been at
Swargate S.T.Depot, she was dashed by the bus with intention and
knowledge as contemplated under clauses 1 to 4 of Sec.300 of I.P.C.
thereby she was crushed, hence, lost her life on the way to hospital.
4] In the same manner, death of Shweta Dhaval Oswal, age
28 years, has been caused by giving dash to her Activa Scooter.
5] Death of Ramlal Shukla, age 25 years, has also been
caused by giving dash to his motorbike.
6] The motorbike No.MVA2170 of Pinkesh Khandelwal, age
32 years, was dashed in the above said manner and he died in
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Sassoon hospital at 9.30 a.m. on the date of incident itself.
7] The pedestrians Changdev Bhandvalkar, age 61 years,
Ankush Tikone age 46 years, were also dashed by the above said
S.T.bus driven by the accused and their death occurred on 14.2.2012
and on the same day respectively.
8] The passenger Milind Gaikwad was travelling by auto
rickshaw No.MH12FC1552, it was dashed and his death did take
place on the same day.
9] The murder of the said nine persons has been committed
without any provocation .They were harmless, defenceless pedestrians,
passengers, riders, pillion riders of scooters, bikes, auto drivers,
passengers.
10] No attempt whatsoever has been made by the accused to
save life of any of the above said persons , when he was instructed by
his Superior Ajit Limaye,(P.W.17), P.W.23 Damakale, Asstt.traffic
controller, to immediately stop the bus to arrest mishap, death and
injuries to the above said persons. If he would have paid heed to the
instructions of the above said witnesses, after the death of Shubhangi
More, the wife of P.W.1, further murders of the above said persons
could have been arrested.
Ruthless and Criminal conduct of the accused .
1] The most aggravating circumstance lies in most
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recalcitrant, obstinate , ruthless conduct of the accused in assaulting
P.W.18 P.M.T.driver Chavan and P.W.20 constable Bapu Lonkar, when
after the death of Shubhangi More, the P.W.18 has instructed the
accused to stop the bus, by making actual attempt to stop it by
applying hand brake but the accused has assaulted him by one hand,
pushed him from the moving bus without stopping it in order to arrest
further massacre by the bus driven by him.
2] That there was no reason for the accused to take law in
hand in committing above said act, when there was no slightest
influence of mental or emotional disturbance.
3] Thus, the knowledge as contemplated under clause 4 of
Sec.300 of I.P.C. that the act of indiscriminate driving of the bus was so
imminently dangerous that it must in all probability,cause death or
such bodily injury,as is likely to cause death and committed such act
without any excuse for incurring the risk of causing the death or such
bodily injury, merged in prominent intention in committing murder
of the above said nine persons, by endangering life of 37 persons, by
making an attempt to commit their murder, by causing injuries, by
driving the bus in the above said manner.
Subsequent conduct of the accused.
1] Even after commission of the crime in question in brutal
manner, the accused has not showed remorse.
2] On the contrary, accused has made an attempt to flee after
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the commission of the crime.
False defence .
1] That on 19.2.2010, the accused had taken medical
treatment from Dr.Dilip Burte, (D.W.1) in respect of persecutory ideas,
mood of sadness with suicidal ideas at a time, disturbed sleep, less
eating and palpitation.
2] After 19.2.2010, the accused has not taken any sort of
medical treatment, from the said defence witness Dr.Burte, still then,
at the instance of accused, the said witness had led false evidence that
on 22.2.2010, 25.2.10, 13.3.10, 31.5.10 , 23.8.10, 24.6.11 and on
2.8.11, he had provided treatment to the accused in respect of the
above said ailment.
3] The further palpable false defence as to electro convulsive
test/therapy was applied by Dr.Burte to the accused on 22.2.10,
25.2.2010, 1.3.10, 4.3.10, and 12.3.10, though no such test was
applied.
4] An attempt to practice fraud on court on the basis of false
defence evidence to bring the case within the ambit of sec.84 of I.P.C.
Impact of the crime on community/society.
1] The accused has committed murder of the above said nine
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innocent, helpless persons, out of which, Shubhangi More age 35
years, and Shweta Oswal,age 28 years have left back their husband
and children to suffer the agony of the incident. Akshay Pise, Age 20,
Puja Patil, age 19 years were students of engineering and Dental
college have been murdered, the impact thereof on the society and in
case of their family cannot be penned down. One Ankush Tikone,
Pinkesh Khandelwal, Milind Gaikwad, Ram Lalit Shukla and Changdeo
Bhandwalkar also came tobe murdered in the above said manner.
Therefore, panic was created by the murder of all the said persons
which has ever lasting effect on the society and their family members.
2] The 37 persons had sustained grievous and simple injuries
in the incident. The persons who have suffered grievous injuries, are
still ailing, thereby they are impaired, some are handicapped to suffer
the agony of the incident, throughout their life, thereby their family
members and society has been caused to suffer their agony and
sacrifice their meager earning for costly medical treatment to survive
from the agony of the injuries caused by the accused to them.
Safety of Pedestrians, passengers from public and private transport.
1] From the entire evidence, it is proved that the accused self
had enraged fury against P.W.3, 4, 17,23, and 24, on their turning
down request of the accused to change night out duty to single duty,
the accused has committed the above said massacre and menace. Due
to the impact of the incident, about three days, there was chaos in the
entire Pune city.
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2] The Maharashtra State Road Transport Corporation's
service was totally paralised throughout the day of fateful incident,
occurred due to above said ghastly, dastardly act of the accused.
Consequently, pedestrians and passengers were under trauma and fear
to set out from the house and undertake journey for their daily
pursuits.
3] Thus, the conscience of general public and passengers has
been shocked due to the incident of committing murder of nine
persons and causing simple and grievous injuries to 37 persons by
driving the bus by the accused in the above said manner.
MITIGATING CIRCUMSTANCES
1] It is argued by the learned counsel of the accused that
accused is 40 years sole earning member of his family, having liability
of his second wife Sou.Sonali, three children viz.Anjali, Aditya and
Ajinkya, and widow mother. Thus, the accused being 40 years old in
the factual matrix of the matter under consideration be said to be a
mitigating factor.
2] Probability of the accused would be reformed and
rehabilitated.
3] No previous criminal antecedents of the accused.
4] His clean track record as the bus driver.
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5] No premeditation and preplanning in committing crime.
6] Offence has not been committed in revolting, grotesque
and brutal manner.
7] Accused has no animosity against the deceased in causing
their death.
162] In support of the above said mitigating circumstances, he
has invited my attention on the following ratios:
1] State of Himachal Pradesh Vs.Manohar Singh Thakur A.I.R.1998
S.C.2941.
2] Panchhi and others Vs.State of U.P. AIR 1998 S.C. 2726.
3] Ronny @ Ronald James Alwaris Vs.State of Maharashtra A.I.R.
1998 S.C.1251.
4] Sheikh Abdul Hamid and Another Vs.State of M.P. A.I.R.1998
S.C.942.
163] The first ratio speaks that when the accused and the
deceased were last seen together, and dead body of the deceased was
found at canal in direction in which, accused and deceased were last
seen , injuries inflected by the accused on head of wife of deceased
were similar to the injuries found on the dead body of the deceased, as
per medical evidence. An axe was discovered by the accused in
consonance with sec.27 of Evidence Act. Therefore, the Hon'ble Apex
Court has held that the murder was not committed in most brutal ,
gruesome and diabolical manner but it was found to have been
committed simply to gratify greed of the accused in causing death of
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one old person and attempted to murder another. The case was based
solely on circumstantial evidence. Consequently, the facts thereof
being in contra to the facts of the case at hand, the said ratio cannot
be said to be of any help in order to bring the case out of the swift of
rarest of the rare cases.
164] The second ratio speaks that due to rivalry between two
families, four members of one family were murdered by the accused
and before the murder, oftenly counter attacks were made by accused
and family of the victims. Thus, the murder was outcome of deep
seated animosity, hence, the case was not as one of the rarest of rare
cases in order to award death sentence. Thus, in nutshell, attempt has
been made to point out that case cannot be brought within the head of
rarest of rare cases, on the basis of many more murders committed by
accused. In the case at hand, admittedly, there was no animosity of the
accused and the deceased whatsoever. Therefore, the said ratio also
cannot be said to be of any help to the accused in order to call
sentence of imprisonment for life.
165] In the third ratio, 3 persons were killed and out of them,
one was raped, therefore, the Hon'ble Apex Court has held that there
was possibility of reform and rehabilitation of the accused ,hence, the
Hon'ble Apex Court has held that on this background, the case did not
fall within the rarest of the rare cases in order to award death penalty.
It is clear that said case was also based on circumstantial evidence . In
our case, indeed, there was scope to the accused to mend his
behaviour , when he was instructed by his superior Ajit Limaye when
death of Shubhangi More was caused in front of the Outgate of
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Swargate ST depot, to stop the bus and to arrest further menace. But
accused did not mend his behaviour but preferred to cause death of
other eight persons and injuries to the 37 persons. Thus, after
committing heinous crime, one cannot be allowed to say that he has
chance to reform and rehabilitate at the cost of agony, suffered by the
family members of the deceased and agonies of the injuries , day in
and day out, are being suffered by the injured who have sustained
injuries in the incident. Hence, on this premise also, it cannot be said
that the said case is of any help to the accused.
166] In the case of Shaikh Abdul Hamid, there was no evidence
as to how murder took place, nor there was evidence to prove that it
was cold blooded murder, therefor, the Hon'ble Apex Court has held
that the case did not fall in the category of rarest of rare cases, so as to
inflict extreme penalty of death. Such are not the facts in respect of
the case at hand. Hence, said ratio also has no application to the case.
167] So far as recent pronouncement of Hon'ble Apex Court in
the case of Sangeet and Anr. Vs.State of Haryana,2012 DGLS(Soft)
567, it is clear that it speaks about remission of sentence by Hon'ble
Apex Court. No doubt, in the said case, ratio in the case of Machhi
Sing and Bachan Sing as to aggravating and mitigating circumstances
has been relied. Further, it has been held that “in the sentencing
process, both the crime and the criminal are equally important. We
have unfortunately not taken the sentencing process as seriously, as it
should be with the result that in capital offences, it has become judge
centric sentencing rather than principled sentencing. Therefore, death
penalty was converted into sentence of life imprisonment. Hence, the
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said ratio also found to be of no help to the defence to prove the
mitigating circumstances.
168] In the case of Bachan Sing, it has been held that death
penalty can be imposed only in the absence of any mitigating
circumstances in favour of the accused.
169] On the above plight, I have to consider whether there is
really any mitigating circumstance in order to outweigh the
aggravating circumstances.
170] As a matter of fact, aggravating factors are aplenty and
galore without any mitigating circumstance as discussed above. The
age of the accused, his liability towards his family members, chances
of reformation and rehabilitation revealed to be not the mitigating
circumstances in view of the grave aggravating circumstances. Hence,
accused has failed to outweigh the aggravating circumstances. Indeed,
there is no mitigating circumstance.
171] If the stock of aggravating and mitigating circumstances is
taken and theory of proportionality is kept in mind, the case at hand
needs to be held as rarest of the rare cases. The balance of mitigating
circumstances is not tilting in favour of accused. The crime has been
committed and executed by committing murder of nine persons and
injuries to 37 persons by driving the bus indiscriminately with
intention and knowledge that the said act was so imminently
dangerous that it must in all probability cause death or such bodily
injury as is likely to cause death and committed such act without any
109 S.C.275/2012
excuse for incurring the risk of causing death or such bodily injuries
likely to cause death of the above said 37 persons, by transforming
knowledge into prominent intention in committing the crime in the
above said manner, in sheer disregard of the instructions of
P.W.17,18,19,20 to stop the bus in order to arrest further menace and
massacre.
172] The said incident had sent shock waves throughout the
Pune City and particularly, to the passengers using the public
conveyance of Maharashtra Road Transport Corporation.
173] Thus, the case falls in the category of unique rarest of the
rare cases, invited death penalty. Hence, I proceed to pass the
following order:
ORDER
1] The accused Santosh Maruti Mane, Age 40 years,
Occ.Service, R/o At post Kavthale Tal. Uttar Solapur, Dist.Solapur, is
hereby convicted u/s 235(2) of the Code of Criminal Procedure, of
the offences punishable under sections 381, 302, 307, 324, 427 of the
Indian Penal Code and for the offence punishable under section 3(2)
of the Prevention of Damage to Public Property Act, 1984 and
sentenced to suffer in the following manner:
i] For the offence punishable under u/s 381 of the Indian
Penal Code, he is sentenced to suffer rigorous imprisonment for five
years and to pay fine of Rs.500/ i.d. to suffer R.I. for one month.
110 S.C.275/2012
ii] For the offence punishable u/s 302 of the Indian Penal
Code, he is sentenced to death and to pay fine of Rs.5000/ i.d. to
undergo R.I. for one year. He be hanged by neck till he is dead.
iii] For the offence punishable u/s 307 of the Indian Penal
Code, he is sentenced to suffer rigorous imprisonment for ten years
and to pay fine of Rs.5000/ i.d. to suffer R.I. for two months.
iv] For the offence punishable u/s 324 of the Indian Penal
Code, he is sentenced to suffer rigorous imprisonment for three years
and to pay fine of Rs.5000/ i.d. to suffer further R.I. for one month.
v] For the offence punishable u/s 427 of the Indian Penal
Code, he is sentenced to suffer rigorous imprisonment for two years
and to pay fine of Rs.500/ i.d.to suffer R.I. for 15 days.
vi] For the offence punishable u/s 3(2) of the Prevention of
Damage to Public Property Act,1984, he is sentenced to suffer rigorous
imprisonment for five years and to pay fine of Rs.5000/ i.d. to suffer
R.I. for two months.
2] The above said substantive sentences for the offences
punishable u/ss 381,307,324, 427 of the Indian Penal Code and for
the offence punishable u/s 3(2) of the Prevention of Damage to Public
Property Act, 1984, shall run concurrently.
3] The muddemal property clothes of all the deceased, all
111 S.C.275/2012
the injured and of the accused, being totally worthless, be destroyed
after the period of appeal is over.
4] The muddemal property cell phone GT 505 of Duel SIM of
Airtel and Vodaphone, bearing IMEI No.911111750204037 and
911111750254032 and one Idea mobile SIM card
No.8991220400027779628 are hereby confiscated to the State. It be
sold in public auction and sale proceeds be credited to the
Government, after the appeal period is over.
5] The muddemal property driving licence, batch be returned
to the P.W.24 Shri Vijay Diwate, Depot Manager of Swargate S.T. depot
after the appeal period is over, for disposal according to rules of
M.S.R.T.C.
6] The muddemal property cash amount of Rs.100/ seized
from accused is hereby forfeited to the State. It be credited to the State
after the appeal period is over.
7] The muddemal property Gun9 mm CarbineIAIREC
No.160, 17409SAF 1994 with Magazine and three empties, being
police property, be returned to the Commissioner of Police,Pune, after
the appeal period is over, for disposal according to law.
8] The muddemal property photo of the accused, photo of
female, S.T.pass, his two pocket diaries, 19 pay slips, receipt of bonus
issued by S.T.Cooperative Credit society, be returned to the accused,
after the period of appeal is over.
112 S.C.275/2012
9] The muddemal property S.T.Bus No.MH14BT1532 has
already been returned to the Maharashtra State Road Transport
Corporation on bond. It has to retain the same and the bond thereto is
hereby cancelled.
10] Rest of the muddemal propertystones, broken glass pieces,
control sample, blood mixed earth,plain earth, be destroyed after the
appeal period is over.
11] The proceeding shall be submitted to the Hon'ble High
Court, Mumbai and sentence of death shall not be executed until it is
confirmed by the Hon'ble High Court.
Date: 08.04.2013 (V.K.Shewale) Addl.Session Judge,Pune.
"I affirm that the contents of this P.D.F. file Judgment are same word
for word as per original Judgment."
Name of Steno : Sau.S.V.Sane.
Name of Court : Shri V.K.Shewale,Addl.Session Judge, Pune (District Judge5,Pune)
Date : 09.04.2013Judgment signed by : 08.04.2013Presiding Officer on Judgment uploaded on : 09.04.2013
113 S.C.275/2012