:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.279 OF 1995 The State of Maharashtra .. Appellant Vs. 1. Mahadeo Laxman Sarane 2. Raju Laxman Sarane 3. Basu Laxman Sarane 4. Sidhu Laxman Sarane All resident of Sulerjavalge Taluka Akkalkot, District Solapur .. Respondents (Org.Accused Nos.1 to 4) Mr. R.Y. Mirza, APP for Appellant-State. Ms. V.S. Mhaispurkar h/f Mr. B.G. Vaidya for Respondents-accused. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. Date : April 06 & 07, 2005. Date : April 06 & 07, 2005. Date : April 06 & 07, 2005. ORAL JUDGMENT (Per S.S. Parkar,J.): ORAL JUDGMENT (Per S.S. Parkar,J.): ORAL JUDGMENT (Per S.S. Parkar,J.): 1. This appeal is preferred by the State impugning the judgment and order dated 3/2/1995 delivered by the Vth Additional Sessions Judge, Solapur acquitting all the respondents-accused of the offence under Section 302 read with Section 34 of IPC in Sessions Case No.199 of 1994. 2. This prosecution arises in respect of the incident which took place on the night of 26th June 1994 at about 8.30 p.m. in village Sulerjavalge, :2: Taluka Akkalkot, District Solapur in front of Vithal and Maruti Temple near the Grampanchayat Office. In the said incident one Bhimashankar Madolappa Kapse was murdered when he was assaulted with weapons like sword and dagger. The said incident of assault was witnessed by complainant P.W.5 Kashyappa Kapse, the brother of the deceased, P.W.8 Mallikarjun Kapse, P.W. 12 Babling Patil and P.W. 13 Bharatibai. The deceased had married Kalavati as his first wife 20 years before the incident who was the sister of respondents-accused persons, who are the real brothers. Kalavati had given birth to two children who had died. Thereafter deceased had married P.W. 7 Pushpa. From the second marriage deceased Bhimashankar had two sons and a daughter. After some years deceased Bhimashankar made residential arrangement for Kalavati in village itself and Pushpa was kept separately in the fields. Deceased was neglecting to maintain Kalavati and had also stopped visiting her and, therefore, Kalavati’s brothers, the accused, were annoyed. 3. On the date of the incident when the complainant Kashyappa Kapse P.W. 5, his nephew Mallikarjun P.W. 8, Babling P.W. 12 and his brother Satvirappa were sitting on the Grampanchayat platform :3: (Katta) opposite Grampanchayat Office the deceased Bhimashankar was proceeding towards his house. When he reached near electric pole near Vithal and Maruti Temple accused persons arrived there. Accused No.1 was carrying sword in his hand while accused no.2 was carrying knife in his hand. Accused Nos.3 and 4 also followed them. They were not carrying any weapons. The witnesses saw accused nos.1 giving blows with sword and accused no.2 stabbing deceased with dagger. The accused were also raising slogans like, "Kamaleshwar Maharaj Ki Jai" and "Valisahab Ki Dostaraoddin" before they ran away from the said place. After the assault on the deceased accused no.1 dipped his palm in the blood of Bhimashankar and made impression of his blood soiled palm on the wall of Gramphanchayat Office. Hearing the noise and the slogans raised by the accused P.W. 13 Bharatibai who was residing nearby had come out of her house and had also witnessed the incident of assault. Sometime after incident Police Patil, Tadval was informed on telephone that Bhimashankar Kapse was murdered at Sulerjavalge at about 8.40 p.m. Police Patil in turn informed Karajgi Outpost on telephone. Head Constable Jadhav P.W. 16, who was in-charge of the said Outpost, immediately sent three constables to the said village and gave information about the same on phone :4: to Akkalkot South Police Station which was received by Head Constable Ingale. Thereafter Head Constable Jadhav himself also left for the place of incident. He reached there by about 1.30 in the night. After making inquiry, Head Constable Jadhav recorded the complaint of P.W. 5 Kashyappa Kapse which is Exh. 29. On the basis of the said complaint P.W. 16 Jadhav prepared occurrence report Exh.30 and himself went to Akkalkot South Police Station along with the complainant and handed over the complaint as well as occurrence report to PSO Ingale. PSO Ingale registered the offence and sent papers to Sulerjavalge for which place PSI Mujawar had already left. Investigating Officer PSI Mujawar was informed at his residence at about 12.15 a.m. in the night by PC More from Akkalkot South Police Station about the incident. He had, therefore, immediately proceeded for the said village on motorcycle. He had reached there at about 3 a.m. After reaching there he learnt that Head Constable Jadhav had already recorded the complaint of Kashyappa and two constables were guarding the dead body. After receipt of the papers from the police station PSI Mujawar drew inquest panchanama (Exh.13) on the dead body and handed over the dead body to Head Constable Jadhav for taking it to Akkalkot for post mortem. The spot panchanama (Exh.39) was also drawn :5: under which simple soil as well as soil mixed with blood, blood stained white cap, blood stained slipper pair and leather chappal which were lying on the spot were attached. Thereafter he recorded the statements of P.Ws. 7, 8, 12 and 13. He directed P.W. 16 Head Constable Jadhav to guard the bloody impression of palm on a stone of Grampanchayat Office till finger print expert was brought there. In the morning of 27/6/1994 accused nos.1 and 2 had surrendered to Karajgi Outpost along with blood stained weapons. The blood stained weapons and the blood stained clothes of the accused nos.1 and 2 were attached under panchanama at the said Outpost and the accused nos.1 and 2 as well as the clothes and weapons produced by them were forwarded to Police Station. The stone in the wall of Grampanchayat Office where the impression of bloody palm was left by accused no.1 was removed and attached under panchanama Exh.19 on 28/6/1994. Accused No.3 was arrested on 30/6/1994. Accused no.4 had obtained anticipatory bail and, therefore, he was shown arrested and released on bail on 2/8/1994. The articles attached by the police in the course of investigation, which include blood stained clothes of the deceased and of accused nos.1 and 2, and articles attached under spot panchanama were sent to the office of C.A. for examination in July 1994. After :6: completion of the investigation charge-sheet was filed in the court of JMFC, Akkalkot and the case was committed to the Sessions Court on 23/9/1994. 4. Before the Sessions Court charge was framed against all the four respondents-accused for offence under Section 302 read with Section 34 of IPC, to which the accused pleaded not guilty. On behalf of the prosecution 18 witnesses had been examined, four out of whom are eye witnesses to the incident including complainant P.W. 5 Kashyappa Kapse, the brother of the deceased. The other eye witnesses are P.W. 8 Mallikarjun and P.W. 12 Babling, who were the nephews of the complainant and the deceased and P.W. 13 Bharatibai, the niece of the deceased. P.W. 2 is Dr.Manohar More, who performed post mortem examination on the dead body. P.W. 7 is Pushpabai Kapse, the second wife of the deceased. P.W. 9 Mohammad Ali Shaikh is Circle Officer and P.W. 18 Dattatraya Kore is Maintenance Surveyor, Karajgi who had drawn map of scene of offence. P.W. 6 Abdul Ingalgi was Sub Engineer while P.W. 18 was Electrical Engineer who deposed about existence of electrical pole near the place of incident. The other witnesses are police witnesses and the panch witnesses. Among police witnesses P.W. 16 is Head Constable Jadhav attached :7: to the Karajgi Outpost who had gone to the place of incident initially in the night and recorded the complaint of P.W.5 on the basis of which crime was registered. P.W. 17 is PSI Mujawar who investigated the case. The defence of the accused is of total denial. In addition to their statement under Section 313 of Cr.P.C. accused nos.1 and 2 filed their written say at Exh.52 and accused nos.3 and 4 filed their written say at Exh.53. It appears from the said written say that the defence of the accused was that they were falsely implicated in the case on suspicion and that deceased Bhimashankar was man of bad character and was a criminal who was having enmity with many persons in the village and there was dispute about election of Grampanchayat and he must have been attacked by such persons who were on enmical terms with him. 5. It is lamentable that a judicial officer ignoring overwhelming evidence on record of the eye witnesses, whose presence at the place of incident could not have been doubted in view of the fact that in the midnight the police arrived at the scene and the complaint was lodged by one of the eye witnesses naming the weapons used by accused nos.1 and 2 which were produced by the accused nos.1 and 2 themselves :8: following morning when they surrendered at the police outpost with blood stained weapons as well as the clothes worn by them, has acquitted the accused in the name of benefit of doubt taking the feeble support of minor discrepancies in the evidence of prosecution witnesses. The said order of acquittal is under challenge in this appeal filed against the order of acquittal by the State. 6. With the assistance of the APP we have perused entire evidence on record and heard the defence advocate, who raised the same points which have been used by the trial judge for acquitting the accused. 7. Complainant P.W. 5 Kashyappa Kapse is an elderly person, who was the direct brother of deceased Bhimashankar. He has deposed that on the night of the incident he was sitting on the platform near Grampanchayat Office at about 8.30 a.m. along with his nephews Mallikarjun P.W. 8 and Babling P.W. 12 and his brother Satvirappa. At that time Bhimashankar was proceeding towards his house. When he arrived near the lamp pole near Vithal and Maruti Temple accused no.1 wielding sword and accused no.2 wielding :9: dagger (Jambiya) came there. They were followed by accused nos.3 and 4 who were not carrying any weapons with them. He saw accused no.1 assaulting Bhimashankar on his neck with a sword and accused no.2 stabbing deceased in his stomach with a dagger. Accused nos.1 to 4 raised slogan, "Kamaleshwar Maharaj Ki Jai". Accused No.2 soiled his palm into the blood of the deceased which had oozed out at the place of incident and created impression of his blood soiled palm on the wall of Grampanchayat Office and then raised another slogan, "Valisahab Ki Dostaraoddin" Thereafter all the accused went towards Bankalgi road. The witness and his brother and nephews, who were sitting with him, went to see Bhimashankar who had succumbed to his injuries. They saw injury on his neck, shoulder and the intestine having protruded out of the stomach and the blood spread over the ground at the place of the incident. They raised hue and cry and the people gathered. His evidence is supported by his two nephews P.Ws. 8 and 12 who were also sitting along with him on the platform (Katta) outside the Grampanchayat Office. 8. P.W. 8 Mallikarjun Kapse, a boy hardly 15 years old, who was at that time studying in 10th standard has deposed that deceased Bhimashankar was :10: his uncle. The incident had taken place on the night of 26/6/1994 at about 8.30 p.m. when he along with the complainant, P.W.12 Babling and Satvirappa were sitting on the platform of the Grampanchayat Office and were chitchatting. That time deceased was proceeding towards his house in the field and passed from the field in front of them. When he walked hardly a distance of about 100 ft. and reached near the Vithal Temple, accused nos.1 and 2 armed with sword and dagger respectively followed by accused nos.3 and 4 arrived there. Accused no.1 assaulted deceased with sword on his neck as a result of which Bhimashankar fell on the ground. Accused no.2 stabbed in the stomach of Bhimashankar with a dagger. Bhimashankar died on the spot. Accused no.1 soiled his palm in the blood of deceased and went to the Grampanchayat Office and made impression of blood stained palm on the wall of Grampanchayat Office raised slogans and then all the accused went towards Bankalgi road. 9. P.W. 12 Babling Patil is also nephew of the deceased and was hardly 22 years old. He has deposed that he, the complainant, Mallikarjun and Satvirappa were sitting on the platform of Grampanchayat Office. That time Bhimashankar was going to his house in the :11: field. When he reached near Vithal and Hanuman Temple accused no.1 armed with sword, accused no.2 armed with dagger came from front side of Bhimashankar. They were followed by accused nos.3 and 4. Accused no.1 assaulted Bhimashankar with sword on his neck and when he fell down accused no.2 stabbed Bhimashankar in his stomach. Accused raised the slogan, "Kamaleshwar Maharaj Ki Jai". He also deposed that accused no.1 got his hand soiled in the blood of the deceased and made impression on the wall of Grampanchayat Office and shouted, " Valisahab Ki Dostaraoddin". Thereafter they proceeded towards Bankalgi road. 10. Last eye witness is P.W. 13 Bharatibai, who is also niece of the deceased. Her family is running a flour mill. Her residential house as well as flour mill run by her family is hardly 18 ft. from Vithal Temple. She also heard slogan raised by the accused persons, "Kamaleshwar Maharaj Ki Jai" and hence she came out of the house on the road when she saw accused nos.1 and 2 assaulting her uncle Bhimashankar with weapons in their hands. She saw accused nos.1 and 2 running towards Grampanchayat Office after the assault on the deceased. Bhimashankar had received injuries on his neck and stomach and his intestine had come out. :12: 11. The evidence of the complainant has been corroborated by three eye witnesses in essential particulars. His evidence is also corroborated by the F.I.R. lodged in the mid-night when the Head Constable Jadhav P.W. 16 arrived on the scene at about 1.30 same night. The F.I.R. Exh.29 mentions the manner in which the incident took place. There is reference to the accused nos.1 and 2 arriving at the place of offence armed with sword and dagger respectively followed by accused nos.3 and 4 when deceased was on his way back home in front of Vithal and Maruti Temple. There is mention in the complaint of the names of other eye witnesses who were sitting along with the complainant on the platform opposite Grampanchayat Office. The assault is attributed to accused nos.1 and 2 and thereafter accused no.1 soiled his palm in the blood of the deceased and left the impression on the wall of Grampanchayat Office. There is also reference to all the accused raising slogan, "Kamaleshwar Maharaj Ki Jai" and accused no.1 raising slogan, " Valisahab Ki Dostaraoddin". After leaving impression of his blood soiled palm on the wall of the Grampanchayat Office by accused no.1 all of them left the place. Since deceased had passed from the path in front of the platform where the witnesses were sitting :13: and the accused also, after the assault, had gone near the office of Grampanchayat before leaving the place, the witnesses had the opportunity to see all the accused persons from close quarters armed with blood stained weapons and that is enough to conclude that it was accused nos.1 and 2 who had assaulted the deceased, even if it is assumed that the witnesses for any reason could not have seen the actual assault on the deceased. If the assault had not been seen by the witnesses, the complainant would not have been in a position to give the particulars of assault in the complaint lodged same night that accused no.1 Mahadeo had assaulted deceased with a sword and accused no.2 Raju had stabbed the deceased with a dagger. 12. The evidence of eye witnesses is also corroborated by the finding of impression of the bloody palm on the wall of the Gramphanchayat Office which is mentioned in the complaint as well as in the evidence of all the eye witnesses. Head Constable Jadhav P.W. 16 has deposed that I.O. told him to keep the stone, on which the accused had made impression of palm, in proper and safe condition till finger print expert arrived. The finger print expert had arrived on 28/6/1994 and stone was attached under panchanama Exh.19 after removing it from the wall of :14: the Grampanchayat Office. This is also supported by the evidence of panch Appasaheb Lohar P.W.11. He had acted as panch on 28/6/1994. He had removed the stone having impression of blood soiled palm which was wrapped in a paper and seized under panchanama Exh.19. Thus the evidence of eye witnesses, corroborated by the F.I.R., is further corroborated by the seizure of the stone from the wall of Grampanchayat Office having the blood impression of the palm. 13. The evidence of the eye witnesses is also corroborated by the medical evidence. The prosecution has examined Dr. More P.W. 2 who had conducted autopsy on the dead body on 27/6/1994 in the evening. He has proved the post mortem notes. The post mortem notes are produced on record at Exh.22. As per column no.17 of the post mortem notes the deceased had received 12 external injuries which are as follows:- 1. Incised cut wound behind left ear 3 x 2 cm. deep bone. 2. Incised cut wound 20 x 6 cm. left side neck horizontal extending below left ear out mandible deep exposing muscle torm cut end of vessels, bone, mandible contaminated, spindle shaped. 3. Incised cut wound 10 x 3 cm. below inj. No.2 deep up to lat aspere vertebra and trachea exposing all underneath muscle, cut :15: vessels, tendon, contaminated - spindle. 4. Incised cut wound spindle shaped over Rt. side of face and neck angle of Rt. eye to Rt. eye to Rt. lat. of nape of neck-degloing, exposing underneath muscle, vessels, tendon, contamination, blood clots oblique 17 x 3 cm. 5. I.W. mid sternum 3 x 2 cm deep chest cavity horizontal spindle shaped. 6. I.W. 6 x 2 cm. Lt. lateral to chest, spindle shaped. 7. I.W. epigastric Lt. side abdomen 4 x 2 cm deep cavity 4 x 2. 8. I.W. below above injury 5 x 2 cm cavity deep. 9. I.W. Lt. lat to umbilicus 10 x 2 cm cavity deep, int. mudy coile coming out horizontal. 10. I.W. Lt. iliac fossa 5 x 2 cm cavity deep. 11. I.W. below inj. No.10, 5 x 2 cm. cavity deep. 12. I.W. below inj. No.11, 5 x 2 cm cavity deep. . There is a cut wound on the neck behind the left ear. There is also cut wound on the side of neck. The injuries are stated to be grievous and ante mortem in nature. The post mortem notes also mention in column no.21 the internal injuries on the dead body in the nature of cut and tear corresponding to external injury nos.7 to 12. According to the Medical Officer the cause of death was shock due to multiple incised cut wounds to the vital organs, lungs, heart, :16: chest, abdomen deep following haemorrhagic shock. The Medical Officer has deposed that injuries on the head and neck of the dead body were possible by use of sword (article no.16/6) and injuries on chest and abdomen were possible by use of dagger/jambiya (article no.16/7). He has further deposed that the injuries on the dead body which are mentioned in the post mortem report were sufficient in the ordinary course to cause the death instantly. Thus the mention of the assault by use of weapons like sword and dagger in the complaint is corroborated by the medical evidence. 14. The evidence of the eye witnesses is further corroborated by a very telling circumstance of the recovery of the blood stained clothes of the accused nos.1 and 2 at the time of their arrest when they surrendered to the Karajgi Outpost at about 11 a.m. on the following day and the recovery of blood stained sword and dagger from them at the time of their arrest. In that respect prosecution has led the evidence of panch Subhash Gotul P.W. 3. As per the evidence of Head Constable Ingale attached to Akkalkot South Police Station at about 11 a.m. on 27/6/1994 accused nos.1 and 2 arrived at the police station of Akkalkot. Accused no.1 was carrying blood stained :17: sword in his hand and accused no.2 having blood stained knife in his hand. Head Constable noticed that their clothes were also blood stained. They reported to him about assault made by them on the deceased. He, therefore, called two panchas P.W.3 Subhash Gotul and one Shivanand and attached sword Exh."F" from accused no.1 and knife Exh."G" from accused no.2 and their blood stained clothes under panchanama Exh.25. The clothes of accused no.1 which were attached under said panchanama were blood stained cap, shirt and dhoti marked as Exhs."H", "I" and "J" respectively, while from the person of accused no.2 blood stained shirt Exh."K" was attached. His evidence is supported by panch Subhash Gotul P.W.3. He has deposed that he was called at the police station along with one Shivanand to act as panch. Accused nos.1 and 2 reported about the incident. Accused no.1 produced sword while accused no.2 produced dagger. Both the weapons were having blood stains. The clothes of the accused were also having blood stains. The clothes on the person of accused no.1 i.e. cap, shirt and dhoti and shirt from the person of accused no.2 were removed and were seized under panchanama Exh.25. According to the I.O. weapons as well as the clothes of the accused nos.1 and 2 along with clothes of the deceased and the :18: articles which were seized under spot panchanama from the place of offence were sent to the office of C.A. along with constable Waghmare P.W. 15 on 14/7/1994 in sealed condition. Thereafter the C.A. reports were received. As per the C.A. report dated 30/9/1994 Exh.48 earth mixed with blood and the pair of slippers as well as the clothes of the deceased which were shirt, banian, dhoti and underwear were found stained with blood of group "O". Similarly, the clothes of accused no.1 which were attached at the police station being cap, full shirt and dhoti were found stained with blood of group "O". Similarly, full open shirt of accused no.2 also was found stained with blood of group "O". Both the weapons used by the accused nos.1 and 2 for assault i.e. sword and dagger were also found stained with blood of group "O". The evidence of the police officer is squarely and fully supported by the panch P.W.3. There is no doubt that accused nos.1 and 2 surrendered to the police station following morning along with blood stained weapons and the clothes which they were wearing were also blood stained and, therefore, they were also attached under panchanama Exh.25. Thus, the finding of same blood group which was found on the clothes of the deceased is a very strong circumstance which supports and corroborates the evidence of eye witnesses about the :19: participation of accused nos.1 and 2 in the assault on the deceased on the night of the incident. Except denying as false the accused have not given explanation either in their 313 statement or in the written say filed by them about the finding of blood of group "O" on their clothes and the weapons produced by them at the police station. One reason which one can contemplate for the accused voluntarily surrendering to the police station on the following day may be because they knew that they were seen by the complainant and the other persons present at the time of