1 S.C.275/2012 Received on : 20.04.2012 Registered on : 20.04.2012 Decided on : 08.04.2013 Duration : 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 charge-sheet instituted by Swargate police station, Pune.
Transcript
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,
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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.
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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
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.
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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.?
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.?
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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
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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.?
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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
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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
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
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:
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“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.
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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
91 S.C.275/2012
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
92 S.C.275/2012
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
93 S.C.275/2012
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
94 S.C.275/2012
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
95 S.C.275/2012
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
96 S.C.275/2012
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
97 S.C.275/2012
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
98 S.C.275/2012
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,
99 S.C.275/2012
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
108 S.C.275/2012
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
