1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.664 OF 2008 1. Raghunath s/o Pandharinath Kawade Age 65 years, Occu.Agril., R/o Renapuri, Taluka Ambad, District Jalna 2. Madan s/o Pandharinath Kawade, Age 35 years, Occu.Agril., R/o Renapuri, Taluka Ambad, District Jalna 3. Vasant s/o Pandharinath Kawade, Age 48 years, Occu.Agril., R/o Renapuri, Taluka Ambad, District Jalna ..APPELLANTS VERSUS 1. The State of Maharashtra 2. Sheelabai w/o Kantarao Kawade, Age years, Occu.Household, R/o Renapuri, Taluka Ambad, District Jalna ..RESPONDENTS Mr. N.S.Ghanekar, Advocate for appellants Mr. B.V.Wagh, Assistant Public Prosecutor for respondent No.1 Mr. Nitin K.Choudhari, Advocate for respondent No.2 AND CRIMINAL APPEAL NO.252 OF 2009 Bapurao Bappaji Kawade, Age 52 years, Occu.Nil, R/o Renapuri, Taluka Ambad, District Jalna .. APPELLANT VERSUS 2 1. The State of Maharashtra 2. Sheelabai Kantarao Kawade, Age years, Occu.Household, R/o Renapuri, Taluka Ambad, District Jalna .. RESPONDENTS Smt.S.S.Jadhav, Advocate for appellant Mr. B.V.Wagh, Assistant Public Prosecutor for respondent No.1 Mr. Nitin K.Choudhari, Advocate for respondent No.2 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 30th SEPTEMBER 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Criminal Appeal No.664 of 2008 has been filed by original accused Nos.2, 4 and 3 while Criminal Appeal No.252 of 2009 has been filed by accused No.1. Since both the appeals arise from the same judgment of the trial Court, both these appeals are being decided by this common judgment. 2. Appellant-accused No.1 Bapurao, accused No.2 Raghunath, accused No.4 Vasant stand convicted for an offence punishable under Section 302 read with section 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs. 25,000/- in default of which to suffer simple imprisonment for one year and under Section 341 read with Section 34 of the Indian Penal Code rigorous imprisonment for one month and to each pay fine of Rs.500/- in default of which to undergo further simple 3 imprisonment for five days. Original accused No.3 Madan stands convicted for an offence punishable under Section 324 read with section 34 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 10,000/- in default of which to undergo further simple imprisonment for six months. Original accused No.5 Suresh, original accused No.6 Khushal and original accused No.7 Sharad have not filed appeals challenging their conviction and sentence for offence punishable under Section 323 read with section 34, section 341 read with section 34 of the Indian Penal Code as apparently, the accused have undergone the term of imprisonment. 3. Facts in brief as are necessary for the decision of these appeals may be stated thus. P.W.9 Kalyan Supekar, who was then attached to the Gondi Police Station as A.P.I., was on patrolling duty on 29.3.2008 in the area of Shahgad Mahakal-Wadigodri as the Board examinations had commenced. When he was patrolling he received a telephone call informing him that Bapurao and others had assaulted Kantarao Kawade and that Kantarao was unconscious. Accordingly, P.W.9 A.P.I. along with the staff reached the scene of the offence at about 12.00 noon. He noticed that a crowd had 4 gathered at the scene of the offence, which was on the Wadigodri-Vihamandva road, just after the Churmapuri cross roads. He then dispersed the mob and noticed that injured Kantarao had sustained injuries on his neck, stomach and other parts of the body and that Kantarao was dead. Wife of deceased Kantarao was near him and was weeping and after consoling her he recorded her complaint at Exh.66 and forwarded the complaint with the Police staff to the Police Station. He, however, remained at the scene of the offence in order to ensure that no untoward incident occurs. Accordingly, offence vide Crime No.40/2007 under sections 302, 143, 147, 148, 149 and 323 of the Indian Penal Code and under Section 135 of the Bombay Police Act came to be registered by the Police Head Constable Trinetre. The investigation of the said crime was entrusted to P.W.9 A.P.I. Supekar and thereafter in the presence of panch witnesses he drew the inquest panchnama of the dead body of deceased Kantarao at Exh.54. Dead body of deceased Kantarao was forwarded for post mortem examination along with the requisition at Exh.112. A Photographer was called at the scene of the offence. Photographs of the dead body as well as the scene of the offence were taken. The scene of the offence panchnama came to be recorded in the presence of panch witnesses at Exh. 81. From the scene of the offence sample of ordinary soil and blood mixed soil, pieces of green bangles, 22 in number, shoes of 5 deceased and the Chappal pair of Sheelabai, wife of deceased were seized. The motorcycle belonging to deceased Kantarao, which was lying at the scene of the offence was also seized. Search for the accused was launched. 4. Post mortem on the dead body of deceased Kantarao was performed by P.W.2 Dr.Bhimrao Dodke at 4.10 p.m. and concluded at 6.00 p.m. P.W.2 Dr.Dodke noticed the following external injuries : 1. Incised wound at right side of face 4 cm x 1 ½ cm in breadth x 3 cm margins were found regular and there was evidence of bleeding through that injury; 2. Incised injury at left forearm on dorsal aspect 5 cm x 1 ½ cm x 1 cm. Margins are regular. There was evidence of bleeding; 3. Incised wound at left wrist below thumb 5 cm x ½ cm x ½ cm Margins are regular. There are evidence of bleeding; 6 4. Incised injury at left wrist below little finger 4 cm x ½ cm x ½ cm. Margins regular. Evidence of bleeding; 5. Incised injury at right side of neck, 5.5 cm below right ear. 10 cm x 2 cm x 3 cm. Margins regular. Evidence of bleeding. Major vessels are cut (carotid and jugular vein); 6. Incised injury left side of neck, 5 cm below left ear. 13 cm x 2 cm x 3 cm. Margins are regular. Evidence of bleeding was there. Major vessels are cut (carotid and jugular veins); 7. It was a stab injury, at right chest 2 cm below 1/3rd of right clavicle, present vertically, margin regular, evidence of bleeding. 3 cm x 1 ½ cm x 6 cm. To show the shape of the injury I draw the figure; 8. Stab injury, left chest, sternal border, 9 cm below medial and of left clavicle, 3 cm x 1 ½ cm x 6 cm. Present vertically Margins regular, evidence of bleeding. To show the shape of injury the diagram was drawn; 7 9. Stab injury left hypochondriam, 4 cm x 1 ½ cm x 6 cm, margin regular, evidence of bleeding was there. A diagram was drawn to show the shape of the injury. That injury was 3 cm below left nipple; 10. Stab injury left lateral aspect at chest. 13 cm from axilla. Margins are regular. Evidence of bleeding. Diagram was drawn to show the shape of the injury 3 cm x 1 cm x 5 cm. He opined that all the injuries were ante mortem and on internal examination he found third and seventh ribs at left sterno costal junction were found cut. He had also noticed cut to the larynx and trachea. Right lung was injured at the upper lobe and pericardium was found injured. There was an injury to the left ventricle of the heart. He also noticed carotid and jugular vessels cut. He opined that the probable cause of death was hemorrhagic shock secondary due to incised injuries over neck and injury to right lung and injury to the heart. The probable cause of death certificate is at Exh.73 while the post mortem report is at Exh.74. The clothes of deceased Kantarao came to be seized in the presence of panchas vide seizure memo at Exh.55. On the next day the statements of witnesses came to be recorded and he arrested accused Bapurao in the night and recorded the 8 arrest panchnama. Statements of witnesses came to be recorded under Section 164 of the Code of Criminal Procedure. On 1.4.2007 statements of other witnesses came to be recorded and on 2.4.2007 accused Raghunath, Madan, Vasant, Suresh, Khushal and Sharad came to be arrested under the arrest panchnamas. On 3.4.2007 clothes of accused came to be seized by seizure memos at Exhs.89 to 95. During custodial interrogation accused Suresh had expressed his willingness to point out the axe and the dagger and accordingly, memorandum at Exh.88 came to be recorded in the presence of panch witnesses. The accused led the Police and the panchas near the Churmapuri cross roads and the accused produced a dagger from near the Well belonging to accused Madan. The aforesaid weapon came to be seized under a panchnama. Accused Suresh thereafter produced an axe from the bushes of Babool trees, which also came to be seized under the seizure panchnama at Exh.88-A. Clothes of P.W.1 Sheelabai were stained with blood of deceased Kantarao came to be seized in the presence of panchas vide seizure memo at Exh.96. The remaining accused came to be arrested on 8.4.2007 and clothes of accused Ravi came to be seized vide seizure memo at Exh.107 and that of accused Madan came to be seized vide seizure memo at Exh.108. During custodial interrogation accused Madan expressed his willingness to point out the place where the axe was hidden and accordingly his memorandum came to be 9 recorded in the presence of panchas. Accused Madan led the Police and the panchas near the field of one Sanjeevani Sonawane and produced an axe, which came to be seized vide seizure memo at Exh.97-A. The seized articles were referred to the Chemical Analyzer along with the requisitions at Exhs.114 and 115. The reports of the Chemical Analyzer are at Exhs.116 to 120. It also appears that two motorcycles came to be seized at the instance of accused Bapurao and accused Khushal vide seizure memos at Exh.109, 109-A and 110, 110-A. Further to the completion of investigation a charge-sheet against the appellants and other accused came to be filed. 5. On committal of the case to Court of sessions, charge vide Exh.38 came to be framed against the appellants and other accused for offence punishable under Sections 147, 143, 148, 302 read with section 149, 323 read with section 149, 341 read with section 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act read with section 149 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined nine witnesses while the accused in order to establish their alibi examined four witnesses. The trial Court upon appreciation of the evidence of the prosecution witnesses convicted and sentenced the appellants and the other accused as afore stated. 10 6. We have heard Smt.S.S.Jadhav, Shri N.S.Ghanekar, learned Counsel for the appellants and Shri Wagh, learned Assistant Public Prosecutor on behalf of the respondent-State. In order to deal with the submissions advanced before us by the learned Counsel for the parties it would be useful to refer to the evidence of the prosecution witnesses. 7. Prosecution principally relies upon the evidence of P.W.1 Sheelabai, wife of deceased Kantarao. P.W.1 Sheelabai states that a dispute was existing with one Baburao Patil and due to that complaint had been lodged with the Police by Kantarao. She states that in her village there was one insane person by name Bappasaheb Sahebrao Kawade and that insane person had killed one Bhagwan Bappaji Kawade and had also injured Bapurao Kawade. She further states that thereafter her husband Kantarao and others had tied that insane person Bappasaheb to a pole and killed him. Wife of Bappasaheb had lodged a complaint with the Police and on that basis her husband Kantarao and others came to be arrested. She states that accused Bapurao, is the brother of one Bappasaheb and Kalyan and they were alleging that it was deceased Kantarao, who had instigated the insane person Bappasaheb to commit the crime. She further states that accused No.1 Bapurao had stated that Kantarao be killed and because of the apprehension her husband Kantarao was not 11 residing in the village but was residing at Bhamberi at a distance of 2 kms. from her village. She states that she along with her daughter and son were residing at Renapuri while her husband Kantarao was residing at Bhamberi. She states that on Wednesday her husband had telephoned her at about 8.00 p.m. and had enquired about the welfare of the family members. Sheelabai informed her husband that she was indisposed and had fever. Kantarao thereupon told her to come to the Renapuri cross roads on the next day morning at about 8.00 a.m. Accordingly, on the next day in the morning she informed her brother-in-law and her nephew that she was going to Wadigodri along with her husband to the hospital. She accordingly went to the Renapuri cross roads and her husband came there at about 8.30 a.m. and both of them proceeded on his motorcycle towards Wadigodri. She states that they reached the bus stand at Wadigodri and there they met one Dada Kale. She states that her husband parked the motorcycle and she was sitting there while her husband Kantarao and Dada Kale went to a hotel for taking tea. After sometime they returned where the motorcycle was parked and at that time accused No.1 Bapurao and accused No.2 Raghunath were seen there and thereafter both the accused proceeded towards Renapuri. She states that they met the brother-in-law of her husband Kantarao. Her husband informed her that he had received a message that he should not go to the 12 hospital at Wadigodri but should go to the hospital at Vihamandva. Sheelabai states that she does not know as to who gave a message to her husband Kantarao and accordingly both of them proceeded towards the hospital at Vihamandva on motorcycle. She states that they crossed the Churmapuri cross roads and had reached near the field of Bhagwan Bangar and at that time they saw two motorcycles coming towards them from the opposite direction. She states that the motorcyclists placed their vehicles in front of their motorcycle. She states that she and her husband were frightened and, therefore, started shouting. She states that one motorcycle was being driven by accused Vasant and accused No.6 Khushal was the pillion rider and the other motorcycle was being driven by accused No.2 Raghunath and accused No.1 Bapurao was the pillion rider. The accused said “Catch them and kill them”. On hearing the said exhortation persons working in the nearby field also arrived on the spot and they were accused Suresh (No.5), accused Parasram (No.9), accused Bappa (No.8), accused Sharad (No.7), accused Madan (No.3), accused Ravi (No.11), accused Bali (No.10). She states that accused No.1 Bapurao caused an injury by axe which he was holding on the left hand of Kantarao. Accused No.2 Raghunath took the same axe from accused No.1 Bapurao and then dealt blows after blows on the neck of Kantarao. Accused Vasant dealt blows of dagger one after another on the chest of Kantarao. She 13 states that her husband then fell down. She further states that she tried to rush towards her husband but accused Suresh dragged her and accused Parasram gagged her mouth with his hand and also assaulted her. She states that accused Bappasaheb held her by the waist and did not permit her to go near her husband and accused Sharad caught her legs. She states that accused Madan then dealt a blow of axe on the face of her husband and accused Bali and accused Ravi took the motorcycle of her husband and dumped it by the side of the road. She states that her brother-in-law Ganpat and her nephew who were working in the nearby field rushed there on hearing their cries. The accused thereafter fled away from the scene of the offence. She states that thereafter she lost her consciousness as the scene was ghastly. She states that when she regained her consciousness, she noticed that a crowd was gathered near the dead body of her husband and Police were also reached at the scene of the offence. She states that thereafter her complaint was scribed at Exh.66. She further states that she had gone to the hospital along with the dead body and when she had gone near the dead body, she had embarrassed her husband Kantarao as a result of which her clothes were blood stained. In cross- examination she has admitted that about 4 to 5 months prior to the incident the dispute about the field had started between deceased Kantarao and accused Bapurao. She states that she 14 does not remember the gut number of the field. She has, however, admitted that when she had lodged the complaint she was unaware about the gut number of the field. She has admitted that the gut number of the field is mentioned in her complaint. She has volunteered an explanation that the gut number may have been told by her relatives as her relatives were present when she had lodged the complaint with the Police. She has admitted to have lodged a complaint against accused No.1 Bapurao as he had damaged the cotton crop. She has denied the suggestion that on account of the injuries inflicted to accused No. 1 Bapurao by the insane person Bappasaheb, accused No.1 was unable to hold a stick. She has further admitted that it was necessary for her to take medical treatment and she had reached Wadigodri by 9.00 to 9.30 am. She has admitted that she was at Wadigodri for about 30 to 35 minutes and by about 11.00 am, she along with her husband had left Wadigodri. She has admitted that it did happen that after accused Bapurao and accused Raghunath had left Wadigodri, she realised that they should go to the hospital at Vihamandva. In cross-examination she has admitted that near the scene of the incident field of accused No.3 Madan Kawade is situated. She has also admitted that near the scene of the incident, the field of her brother-in-law Venkat is also situated. She states that the distance between the scene of the incident and the field of Venkat would be one or half kilometer. 15 She has further admitted in the cross-examination that after her husband was assaulted the motorcycle was thrown from the scene of the incident to the road side. She has admitted that after the motorcycle was dumped she had shouted and hearing her cries Asman, Venkat and Ganesh had arrived at the scene of the incident. She has further admitted that after the funeral was performed she had gone to the Police Station. She has admitted that her thumb impression was obtained on the papers that night. She has, however, maintained that she had lodged her complaint with the Police at the scene of the incident itself. She could not state the nature of the papers on which her thumb impressions had been obtained that night. She has admitted that none of the nearby residents had come to their help. In cross-examination she was asked a question which she replied as follows : “ I told Police while lodging complaint that the motorcycle riders they restrained us from proceeding ahead. They said to kill my husband.” In order to test whether this was an omission we had perused first information report at Exh.66 and we find that the aforesaid fact is not an omission. Omission has been duly proved that she had not stated in her report that as she was intending to go near her husband accused Suresh had dragged her and 16 accused Parasram had assaulted her and that accused Bappasaheb had held her by the waist so as to prevent her from going towards her husband. 8. In further cross-examination on behalf of the other accused she has admitted that about two days prior to the incident she was indisposed as she had fever. She has admitted not to have informed her husband that she had fever. She has further admitted that she had gone to the police station by a jeep and the Police had asked her to attend the police station after the funeral. She has admitted that she had gone to the police station for the first time and that was after the funeral. She has admitted that when she had gone to the police station, the Police had scribed her statement and had obtained her thumb impression. She has stated that she had seen the two motorcycles coming from the opposite direction and the distance from the motorcycle of her husband and the two motorcycles was about 10 to 15 feet. She has further admitted that as soon as she had seen the motorcycles she had apprehended danger to her husband. She was asked whether she had told her husband anything and she had replied that even her husband was frightened. She has stated that when their motorcycle was obstructed she stepped down from the motorcycle while her husband was sitting astride on the motorcycle. She has further stated that when her husband 17 was on the motorcycle the incident started. She has further stated that when her husband had stepped down from the motorcycle, the motorcycle had fallen on the ground. She was also asked as to whether two blows of axe were given on the face of her husband, she replied in the affirmative. She was asked as to whether the injuries were bleeding and she answered in the affirmative. She was asked whether the first blow of axe was given on the face of her husband before he fell on the ground. According to her when her husband fell on the ground the first blow of axe was given on his face. In response to another question she replied that after her husband had fallen down one blow of axe was given on his face. She has categorically stated that accused Raghunath gave a blow on the neck of her husband by an axe and another blow on the face of her husband. She states that after receiving the blow on the neck, her husband fell on the ground. She has also stated that after her husband had fallen on the ground accused Vasant stabbed him with a dagger. She has also admitted in the cross-examination that after she regained consciousness the Police arrived at the scene after half an hour. She has further reiterated that her report was scribed at the scene of the incident itself. 9. According to Shri Ghanekar, learned Counsel for the appellants the report at Exh.66 was not scribed at the scene of 18 the incident but was scribed after the post mortem was conducted and, therefore, P.W.1 Sheelabai has given such graphic description about the injuries sustained by deceased Kantarao. Learned Counsel for the appellants referred to the evidence of the Investigating Officer in order to buttress the aforesaid submission. 10. It is no doubt true that Sheelabai has admitted that after the funeral she had gone to the Police Station and the Police had scribed her statement on which her thumb impression was obtained. However, Sheelabai in her evidence both in examination-in-chief and in cross-examination has maintained that the report was scribed at the scene of the incident itself. P.W. 9 A.P.I. Supekar has also stated that the report was scribed at the scene of the offence itself. Prior to the referring the dead body for post mortem examination, the said report came to be scribed and the offence came to be registered on the basis of the said report. A perusal of the inquest panchnama and the scene of the offence panchnama clearly shows that the crime number has been recorded in the inquest panchnama which came