Holding

The High Court correctly upheld the convictions, and the Supreme Court dismissed the appeal.

Summary

The accused, members of the Bhirad family, were convicted for assaulting Ganesh Dhage with swords, causing severe injuries, under Sections 147, 148, 307 read with Section 149 of the IPC. The victim, while hospitalized, identified the accused by name in a statement recorded by doctors, which the defence claimed was speculative and unreliable due to his injuries. The High Court held that the victim’s identification was credible, corroborated by eyewitness testimony, and that the statement, though not a dying declaration, qualified as a statement under Section 164 of the CrPC. The Supreme Court affirmed the High Court’s reasoning, noting the overwhelming evidence and lack of prejudice to the accused. Consequently, the appeal was dismissed and the convictions upheld.

Issues considered

Whether the victim’s identification of the accused by name, made while severely injured, is reliable and admissible.
Whether the victim’s statement constitutes a dying declaration or a statement under Section 164 of the CrPC.
Whether the evidence is sufficient to sustain convictions under Sections 147, 148, 307 read with Section 149 of the IPC.

Legislation cited

Code of Criminal Procedures. 164
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 307

Subjects

IPCSection 147Section 148Section 307Section 149Section 164 CrPCdying declarationidentification of accusedunlawful assemblyassault with deadly weaponcorroborationconviction

Judgment

A SHRA WAN BHADAJI BHIRAD AND ORS.
v.
ST ATE OF MAHARASHTRA

NOVEMBER 13, 2002

B [UMESH C. BANERJEE AND Y.K. SABHARWAL, JJ.]

Penal Code, 1860-Sections 147, 148, .307 read with 149-Accused
assaulting a person with sword-Victim admitted to hospital and disclosing
C names of accused-Conviction by trial court-Accused taking plea that victim
did not know names of the accused and their names mentioned by way of
speculation due to enmity-High Court disagreeing with the submission,
upholding the conviction-On appeal, Held: Disclosure of names stood
corroborated by eye-witness account-Hence High Court justified in its
conclusion.
D
Appellants-accused assaulted one G with sword all over his body as
resulting in numerous incised wounds. G was then admitted to the hospital
where he was confined for about three months. He also disclosed the names
of appellants-accused. Doctors opined that injuries sustained by G were
sufficient in the ordinary course of nature to cause his death. Sessions
E Judge convicted appellants-accused under Sections 147, 148 and 307 read
with Section 149 IPC. In appeal it was contended that victim was not
aware of the names of the assailant and their names were mentioned by
way of speculation because of old enmity. High Court negatived the
contention and upheld the order of Sessions Judge.
F In appeal to this Court appellants contended that their alleged
involvement has no basis and is only a speculation.

Dismissing the appeal, the Court

HELD: High Court dealt with the matter in a proper manner and
G rightly held that it cannot be agreed that victim was not aware of the
names of the assailant and their names were mentioned by way of
speculation because of old enmity. In any event disclosure of names in the
dying declaration seems to be of a definite significance. Though such a
declaration was taken down, but by reason of the efforts of the doctors
H 158
SHRA WAN BHADAJI BHIRAD ''· ST ATE OF MAHARASHTRA [BANERJEE,).] 159
r·
attending, the victim survived and as such the statement made need not A
stand the strictest scrutiny of dying declaration but at best a statement
under Section 164 of Code of Criminal Procedure. This piece of evidence
however stood corroborated by the eyewitness account of prosecution
witnesses. There is over-\\'·helming evidence on record in support of the
prosecut(\r and thus, there is no reason to interfere with the concurrent B
findings recorded by Sessions Judge as also by High Court.
1163-8-C; G-HI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
577 of 1993.

From the Judgment and Order dated 8.6.1993 of the High Court of C
Bombay in Crl. A. No. 73 of 1988.

Ram Jethmalani, Ms. Lata Krishnamurti, Ashok Kumar Singh :md Sapam
Biswajit Metei, for the Appellant.

Manish Pitale and S.V. Deshpande for the Respondent. D

The Judgment of the Court was delivered by

BANERJEE, J. The appellants herein all belong to the family of Bhirads
Whereas Shrawan Bhadaji Bhirad, appellant no. I is the father Kamal
Shrawan, Arvind Shrawan and Surendra ShraWan are the sons being appellant E
nos. 2, 3 and 4 and Gajanan, Vasudeo and Ambadas are the nephews.
Ambadas, however, has expired during the pendency of the matter before the
High Court. The Additional Sessions Judge, Akola, on basis of the evidence
available on record recorded the finding of conviction against the appellants
for offences under Sections 147, 148 and 307 read with Section 149 of the F
Indian Penal Code for having formed an unlawful assembly on 29th June,
1985 at about 8.00 a.m. and assaulted Ganesh, P. W. 1 in a locality known as
Shivaji Nagar of Akola with the aid of swords.

Before adverting to the rival contentions, a brief note to the prosecution
case ought to be adverted to at this juncture, and the same runs as below : G
Shrawan Bhirad accused no. I and his nephews reside in Shivaji Nagar
locality, so also Ganesh Dhage resides in the same locality.in a small galli.
For this locality are provided public latrines circumscribed with a compound
wall with entrances on the east and on the south. On the eventful day in the
morning when Ganesh Dhage was proceeding to the latrines to ease off, a H
160 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A Fiat car bearing No. MZQ 581 owned by Shrawan Bhirad came from his
back side and dashed him whereby he was tossed and fell to the ground.
Getting on his feet when he however, looked backwards he has stated to have
seen accused nos. I to 7 and deceased Anil Bhirad getting out of the car
armed with swords. Sensing the danger, he rushed through the eastern gate
B of the latrine premises and went inside just to get out of the same through
the southern gate. When however near the gate inside the premises, he slipped
his feet due to a ditch with mud and fell to the ground and was caught by
the said persons, who happened to be chasing him. It is at that juncture, they
assaulted Ganesh Dhage with swords all over his body making him suffer
numerous incised wounds. Completing the assault, the assailants-accused nos. I
C to 7 and deceased Anil rushed back from the eastern gate and, got into the car
and went away. The prosecution case further depicts that the accused persons
proceeded towards the farm house owned by accused no. I and situated on the
road to village Loni. There was already stationed a Jeep brought by accused
nos. I and 2 from Wamanrao Pundlikrao Patil, resident of Village Bhaurad
(PW.5). The assailants got into the said Jeep and asked the driver Khaja
D Aminoddin to drive it towards Balapur side guiding him to take the Jeep via
Paras, Akot, Daryapur, Amravati, Chadur Railway and further to Wardha,
and reached Nagpur, at about 4.30 to 5.00 p.m. There they asked the driver
to take the Jeep back to Akola and Aminoddin brought it to Akola, at about
I 0.00 p.m. at the residence of the owner of the Jeep. At Akola, after the
E assault in the meantime the brother of Ganesh Dhage i.e. Keshao Dhage and
one Venubai got Ganesh Dhage into a rickshaw and took him to the Main
Hospital Akola. The incident was also seen by another brother of Ga_nesh
Dhage i.e. Kishore Dhage (P. W.9). Seeing that Ganesh Dhage was being
attended to by his brother Keshao Dhage, he rushed to City Kotwali Police
Station Ako la and lodged complaint at 8.10 a.m. Many" people including the
F eye-witnesses stated to have witnessed the incident.

Ganesh Dhage was admitted in the hospital and attended by one Dr.
Bhagwat, who found the following injuries on his person:

(1) Right forearm multiple incised wounds which were bone deep.
G It has underlying multiple communicated fractures of radius and
ulna. The soft tissue injuries were extending upto middle 3rd of
arm.
(2) Incised wound on right knee anteriorly and laterally, 9" x 2"
joint cavity deep, upper articular surface of tibia was chopped
H out anteriorly.
SHRAWAN BHADAJI BHIRAD ,. STATE OF MAHARASHTRA [BANERJEE. J.] 161

(3) Incised wound on right thigh laterally and upper third 8" x 2" A
muscle deep.

(4) Avulsion of heel and on right side. The avulsion of calcaneal
bone piece laterally 6" x 4".

(5) Incised wound in the 2nd web space cutting metatarsal and tarsal.
The toes medially were hanging by a skin tag dorsally 4" length. B
(6) Left upper extremity. Zig-zag incised wound extending from the
middle 3rd of arm posteriorly upto dorsum of the hand. It has
multiple incised wounds extending all over the extremity. Loss
of little finger. It has multiple fractures.

(7) Multiple incised wounds on the scalp about 15 in number of
c
varied dimensions and were bone deep. Every wound has
underlying outer table fractures of skull bone.
(8) Multiple incised wounds all over body of subcutaneous deep
nature.
D
Incidentally, be it noted that the opinion of Dr. Bhagwat has been that
the injuries could be caused by hard and sharp object like sword.

Incidentally, be it noted that Ganesh Dhage was confined in the hospital
for about three months and during which period, his right hand was amputated
and left hand elbow joint and right knee suffered from very severe stiffness,
E
which happens to be permanent in nature and the learned Sessions Judge held
the same to be the proximate cause or direct result of the injury sustained by
him, since no other extraneous factors were intervening. Needless to record
that the observations of the learned Sessions Judge as regards the physical
condition of Ganesh Dhage, have been in consonance with the opinion F
expressed by Dr. Bhagwat, which stands uncontradicted and is not under
challenge in any way. That there have been severe injuries sustained by
Ganesh at no point of time stand disputed by the defence and the case made
out by ·the prosecution stands out to be wrong implication by reason of
political enmity. Another factual element that needs to be addressed at this G
juncture is in regard to the death of Anil, being another accused person
during the course of trial - and who happens to be the son of appellant no. I.
The learned Sessions Judge had the advantage of having Ganesh examined
in Court as PWI, apart from four other witnesses said to be the eye-witnesses,
namely PW.3, PW.7, PW.8 and PW.9.
H
162 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A Before proceeding with the matter further, the doctor's evidence ought
to be noted since the identification of the accused persons by the injured
seems to have some relevance, as contended by Mr. Jethmalani. The injuries
suffered by the victim as noticed above lead the doctor to opine "that but for
the team of surgeons and necessary medical help such as blood transfusion
B etc. the injuries sustained by Ganesh Dhage were sufficient in the ordinary
course to cause his death. Ganesh Dhage was confined in the hospital for
three months, during which period he was unable to attend to his personal
care. During the cross-examination on behalf of the accused, only one question
was put and it was about Ganesh Dhage telling the doctor about his having
been assaulted by some persons. The doctor has stated that the injured had
C not given the names of the assailants and that he was capable of talking when
the doctor examined him."

It is on this score of identifir~•:0n that Mr. Jethmalani has been rather
emphatic that involvement alleged against the appellants has thus no basis
and is speculation only as such no reliance ought to be placed thereon
D admittedly an impressive submission but let us see as to how the High Court
dealt with the issue. The High Court stated:

"Undisputedly from the inquiry certificate at Exh. 128, it appears that
the victim had received multiple injuries all over the body and some
of them were on vital parts. Immediately he was carried from the spot
E to the District Hospital. Dr. Bhagwat attended him. Even if it is
proved that he could not disclose the names of the assailants to Dr.
Bhagwat, it could not lead to an inference that at that stage he was
not aware of the accused persons. It is pertinent to note that the
victim was severely injured. His agony could be imagined and he was
in a shock and strain, in that mental set up his immediately not
F
disclosing to Dr. Bhagwat the names of the assailants was quite natural
and more probable in a condition in which the victim was placed. We
therefore, do not agree with the submission of Mrs. Sirpurkar that the
victim was not aware of the names of the assailant.

G .... :.......... Further more his testimony implicating the accused appellants
in the incident of assault is supported by Exh. 108 which is the oral
report lodged by PW 9 Ki shore Dhage. wherein again these persons
are referred to as the assailants. Taking these aspects into consideration,
we are unable in being convinced by Mrs. Sirpurkar that the names
of the accused persons were mentioned by way of speculation because
H of old enmity. Even otherwise the victim because of rivalry would
SHRAWAN BHADAJI BHIRAD '·STATE OF MAHARASHTRA [BANERJEE, J.] J63
.,. not allow the real assailants whom he had seen to go scot free only A
with a design to settle a score with these accused persons.

As a 1natter of fact identification of the accused persons and prosecutor's
utter failure on that score has been the principle attack against the judgment.
We however do not feel it inclined to accept such a submission. The High
Court has dealt with the matter in a manner proper and the last few lines of B
the quote above cannot but have our concurrence as well. In any event
disclosure of names in the dying declaration on 29th June, 1985 seems to be
of a definite significance. But before anything further be it noted that though
such a declaration was taken down, but by reason of the efforts of the doctors
attending, the victim survived and as such the statement made need not stand C
the strictest scrutiny of dying declaration but at best a statement under Section
16·1 of the Code and the statement runs as below:

"This day at about 8 O'clock in the morning I was going to the
latrine. One Fiat car No.581 dashed against me from my back side as
a result of which I fell down on the ground. l got up from the ground D
and ran away. Six-seven persons anned with S\vords got down from
the vel)icle from the back side and chased me. I fell down while
running. They started 1:0 assault me by means of swords. The persons
viz. Shrawan Bhirad, Kamal Bhira9, Anil Bhirad, Arvind Bhirad,
Surendra Bhirad, Wasudeo Bhirad and Vidyadhar Bhirad were amongst
the assaulters. They were assaulting me by means of the swords. I E
sustained more injuries by means of the swords held by Wasudeo
Bhirad. Ambadas Bhirad and Surendra Bhirad. They assaulted me in
this way by means of swords and went away. When my friends came
to know this incident they came to the spot of occurrence and brought
me to the hospital. F
The aforesaid persons of the Bhirad family were working against
me in the election of Nagar Parishad."

This piece of evidence however stands corroborated by the eyewitness
account of PWs 3,7,8 and 9.
G
On this state of the facts we do not think it fit to lend concurrence to
the submissions in support of the appeal. There is on record over-whelming
evidence in support of the prosecutor and we do not see any reason to interfere
with the concurrent findings as recorded by the learned Sessions Judge as
also by the High Court. H
164 SUPREME COURT REPORTS (2002) SUPP. 4 S.C.R.

A Incidentally some criticism has been levelled against the judgment
impugned, as being a rather slip-shod way of dealing with such a serious
matter concerning the liability of so many persons, while it is true that the
judgment could have been slightly more elaborate but that does not itself
vitiate the order of concurrence. There is no prejudice to the accused persons
B warranting an order of acquittal.

In that view of the matter, this appeal fails and is dismissed. The bail
bonds stand cancelled. The appellants ought to be put back to prisons to
serve out the remaining period of the sentence.

N.J. Appeal dismissed.