1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 955 OF 2002 1) Ravikiran @ Baba Gopal Shinde ) Age 36 years, Occ: Agriculturist ) 2) Hambir Baburao Narote ) Age 25 years, Occ: Rickshaw Driver ) 3) Vikram Govind Shinde ) Age 28 years, Occ: Agriculturist ) 4) Ganesh Govind Shinde ) Age 26 years, Occ: Agriculturist ) 5) Shrimant Gopal Shinde ) Age 23 years, Occ: Agriculturist ) 6) Atul Bhanudas Gavali ) Age 28 years, Occ: Education ) ) All the Appellants are the residents ) of Barshi, Dist. Solapur. ) ) (At present detained in Yerawada ) Central Prison, Pune.) )... ..Appellants. (Orig.Accused Nos.1 to 6) Versus The State of Maharashtra )... ..Respondent. Mr. Shirish Gupte i/by Mr. S. V. Kotwal for the Appellants. Mrs. Sangita D. Shinde, APP for the State. CORAM : BILAL NAZKI and S. A. BOBDE, JJ. RESERVED ON : 12TH FEBRUARY, 2008. DELIVERED ON: 10TH JUNE, 2008. (In Chamber at 2.45 p.m.) 2 JUDGMENT (Per Bilal Nazki, J.) : This appeal is filed by the appellants against the conviction and sentence passed by the learned Ad-hoc Additional Sessions Judge, Solapur in Sessions Case No. 234 of 2001 on 31st July, 2002 against the present appellants. By the said order two of the accused before the trial court were acquitted of the charges. The appellants have been convicted and sentenced as following: (i) Under Section 302 read with 149 of the Indian Penal Code imprisonment for life and fine of Rs.3,000/-, in default R.I. for one year. (ii) Under Section 307 read with 149 of the Indian Penal Code imprisonment for five years and fine of Rs.1,000/-, in default R.I. for one year. (iii) Under Section 326 read with 149 of the Indian Penal Code R.I. for three years and fine of Rs.500/-, in default R.I. for three months. (iv) Under Section 324 read with 149 of the Indian Penal Code R.I. for three months and fine of Rs.200/-, in default R.I. for one month. (v) Under Section 147 of the Indian Penal Code R.I. for six months and fine of Rs.500/-, in default R.I. for three months. 3 (vi) Under Section 148 of the Indian Penal Code R.I. for two years and fine of Rs.1,000/-, in default R.I. for six months. All these sentences were directed to run concurrently. 2. The prosecution case before the trial court was that at about 0.40 hrs. on 26th June, 2001 one Satish Shankar Rokade was brought to Jagdalemama Hospital, Barshi for medical treatment. He had multiple injuries and they were described in the medical certificate, Exh.58, by Dr. S. M. Bakare vide medical case papers, Exh.59. Another person by name Santosh Sakhahari Gardade was brought to the same hospital by Virbhadra Ganderao Khedkar for medical treatment for injuries caused to him as described in medical certificate, Exh.60. Amole Bhaskar Shidodkar also came to the hospital with injuries on his person described in medical certificate, Exh.61. The fourth person by name Nitin Bhaskar Gadve was also brought to the same hospital by Ravi Sharad Kulkarni for medical treatment for contused lacerated wound on right thumb. The injuries are described in Exh.65. One of the injured Pintu @ Satish Shankar Rokade died within 15 minutes of arriving in the hospital. The Police Inspector received information from PSO Chavan at about 0.15 hrs on 26th June, 2001 that there was a fight going on at the backside of Gavali Hotel at Shivshakti 4 Maidan. On receiving information, he went to the spot by jeep with staff. He found some persons taking the injured to the hospital by jeep. So he also came to Hospital following the injured. He learnt that Pintu was dead and he saw there were 15 to 16 cut injuries on the dead body of Pintu. He made inquiry and recorded First Information Report at about 3.00 a.m., Exh.44. He also registered crime as C. R. No. 67 of 2001. 3. Thereafter, investigations were started. The accused Nos.1 to 3 were arrested on the same day i.e. 26th June, 2001. Their blood stained clothes were also seized on same day. Panchnama of their arrest and seizure of clothes were produced at Exh.52. Recoveries and discoveries were also made. Accused Nos.5 and 6 were arrested on 27th June, 2001. Accused No.4 was arrested on 1st July, 2001 and accused Nos.7 and 8 were arrested on 13th July, 2001. On the basis of the investigation the trial court framed charges against the accused for various offences. The accused pleaded not guilty and claimed to be tried. The prosecution examined 12 witnesses and exhibited number of documents. The defence did not examine any witness. 6 of the total 8 accused persons were convicted and sentenced as mentioned hereinabove. 5 4. PW 1, Dattatrey Limbraj Gaikwad, stated that he was a rickshaw driver at Barshi. At about 7.30 to 7.45 a.m. He took passengers near Shivshakti ground near the bungalow of Dhage. One police van was standing there. Police called him. Santosh Gardade was there with police. They went to the house of Santosh Gardade. Santosh Gardade had shown him the place where the murder of Pintu Rokade had taken place on the earlier day. There was open plot at the western side of the house of Santosh Gardade. There is another plot of one Kangude with wire fencing adjoining to the plot of Santosh Gardade. There was one telephone pole adjoining to that plot and there was electric light pole at the northern side of the said plot. Then he gave description of the area in detail. He found blood spots at the place. There was one sword and the cover of Jambiya lying near the place where Chintu Rokade was flat on ground. There was also heap of sand and it was found disturbed. One stick was lying near the heap of sand. There was one iron bar lying near the place where Nitin Gadve had fell down. He marked certain documents. PW 1 to 4 are panch witnesses and their testimony shall be discussed at a later stage. 5. PW 5 – Amol Bhaskar Shidodkar is the eye witness to the occurrence. He stated that deceased Pintu was known to him. He also knew all the 6 accused persons. All the accused were present before the court and he identified them. The incident had occurred on 25th June, 2001. He had been to Washi and came back from Washi at about 9 p.m. Nitin Gadve was with him while going to Washi. They came to S.T.D. Booth of Nitin Gadve. One unknown boy told him that there was quarrel between Pintu Rokade and accused No.1. The boy also told him that Pintu Rokade was in Shivshakti Maidan. Then he and Nitin Gadve went to Shivshakti Maidan where Pintu Rokade and Santosh Gargade were present. He asked the Pintu as to why there was a quarrel. Lata Gavali was the sister of Atul Gavali. Pintu told him that there was quarrel between him and accused No.1 on account of money of Bishi of Atul Gavali. They were then chit-chatting with each other while walking. When they came near the house of Santosh Gardade in order to go back to their houses, Baba Shinde, Hambir Narote, Ganesh Shinde, Shrimant Shinde, Vikram Shinde, Atul Gavali, Pramod Sonawane and Rajendra Dhage came there. He named all the accused and stated there were swords with accused Nos.1 and 2, iron bar in the hands of accused No.6, chain in the hands of accused No.4, sticks in the hands of accused Nos.4, 5, 7 and 8. All the accused beat Nitin Gadve and Santosh Gargade by those weapons. Accused Nos.1 and 2 beat him by swords on his head, back and on right hand and on left leg. The accused also beat Pintu Rokade and 7 thereafter went away. Ramakant Surve and Raja Gholve had been there and they took them to Jagdalemama Hospital by Sumo and Trax for medical treatment. Medical treatment was given to them. Police came to the hospital and he lodged FIR before the Police. Doctor told him that Pintu Rokade was dead. He identified his signature on the FIR which was marked as Exh.44. He also stated that there was tube light near the house of Maruti Kale at the scene of offence and he had seen the accused persons because of the light emanating from tube. He also identified the weapon placed before the court. On cross-examination he stated that the police station was at the distance of 1 & ½ Kms. from the hotel of Agrawal. The house of accused No.1 was at the distance of 1 & ½ km. to 1.75 km. from the police station. Shivshakti maidan was at the distance of 1 & ½ km. from the house of accused. He also stated that there were cases filed against him and Pintu Rokade for the offences under Sections 323 and 324 of the Indian Penal Code in Barshi Criminal Court. He did not remember whether there was case filed by Umakant Doiphode against him and Pintu Rokade alleging physical assault. He did not remember whether there was any case regarding assault made on Datta Doiphode which was pending in Barshi 8 Court. He accepted that there was a case filed against him. It was a case of robbery pending in criminal court at Barshi. This case had been filed by Amol Lad. He also admitted that there was a case of beating to Atul Gaikwad under Section 326 of the Indian Penal Code. He did not remember whether there were chapter cases filed by police against him in the court of Executive Magistrate. In his cross-examination, he has also stated that he had no concern or acquaintance with the unknown boy who came to him and told him about the quarrel between Pintu Rokade and accused No.1. He accepted that there were two political groups at Barshi. He did not know whether the accused was canvasing for support of Raja Raut in Assembly Election. It was true that Santosh Gadgale was employed in DCC Bank at Solapur after MLA Dilip Sopal became chairman of the DCC Bank. He denied that he was active social worker and was working for Dilip Sopal group. Then he stated that they went to Shivshakti Maidan by rickshaw after receiving information about the quarrel. They reached maidan within 10 minutes. Pintu Rokade and Santosh Gargade were drinking liquor at Shivshakti Maidan when they went there. He accepted that it was rightly mentioned in FIR that after chit- chatting till 00.30 hrs. on 26th June, 2001 they decided to go back to their 9 houses. He also accepted that it was not necessary to go to the house of Santosh Gargade in order to go to his house from Shivshakti Maidan. He denied that he and Nitin Gadve also consumed liquor along with Santosh Gargade at about 9.30 p.m. The incident of beating him was going on for 3 to 4 minutes. They gave blows of the respective weapons to all of them. They did not run away when there was attack on Nitin Gadve and Gargade. It did not happen that the attack was made on him for the first time and he fell down. He did not tell to Police in FIR that the accused had assaulted first Nitin Gadve and Santosh Gargade and then him and Pintu Rokade. He did not give any supplementary statement on 2nd July, 2001. Pintu was first taken to Jagdalemama Hospital by Sumo and then in the trax following the sumo he went to hospital. Doctor came immediately but he did not make inquiry about the injuries. They also did not inform the doctor about the cause of injuries. No neighbours were with them at the hospital. 6. PW 6 – Nitin Bhaskar Gadve is another witness, who claims to be the eye witness and who was accompanying PW 5 Amol. PW 6 stated that the incident occurred on 25th June, 2001. He and PW 5 had been to Washi for the purpose of getting work. When they came back to Barshi at about 9.00 p.m. Amol took him in his STD booth. One boy came there and told that 10 there was quarrel between Pintu Rokade and Baba Shinde and Pintu Rokade was available at Shivshakti Maidan. After some time, he and Amol went to Shivshakti Maidan by rickshaw. Pintu Rokade and Santosh Gargade were there. At that time, Pintu Rokade told them that Atul Gavali and Lata Gavali abused him and his father on account of the money of Bishi of the sister of Atul Gavali. They were discussing at Shivshakti Maidan. After sometime he went to his shop by rickshaw and then came back again to Shivshakti Maidan in his Tata Sumo. While he was talking with Santosh Gargade in front of his house, they were standing near the electricity pole of MSEB and the light was in working condition and at that time 8 persons came towards them. He named all the accused. He stated that there were swords with accused Nos.1 and 2, sticks in the hands of accused Nos.4 and 5, chain in the hands of accused No.3 and iron bars in the hands of accused No.6 and sticks in the hands of other accused. Accused No.1 assaulted him with sword asking where was Pintu Rokade. He sustained bleeding hurt on the thumb of right hands. There were 2 to 4 persons beating him and 2 to 4 persons were beating Santosh. Pintu Rokade and Amol Shidodhkar were standing nearby. After beating them all the accused beat Pintu Rokade and Amol Shidodkar. He had seen the incident. Accused beat them in such a way that both of them collapsed on the ground being severely injured. Pintu was 11 lying near wire fencing and Amol near to him. There were injuries caused to his face upto the ear and right foot and also in between his legs. There were 15 to 16 injuries caused to him. The tempo trax of Ramakant Surve was parked near his house. Amol was taken to hospital by his tempo trax and Pintu by Tata Sumo. Witness stated that he himself was driving the Tata Sumo. The injured were admitted in Jagdalemama Hospital. During the course of incident the accused No.1 was injured by the sword of accused No.2. He could identify the weapons placed before the court and the accused. In his cross-examination, he stated that electric pole of MSEB was at the distance of 10 to 15 ft. from the place where Pintu and Amol were beaten. His jeep was parked facing East. He and Santosh were in front of the side of the jeep and Pintu and Amol were at the right side of the jeep. The discussions between them and Pintu were general. There was jagran Gondhal function in the house of Santosh. Santosh had invited persons to his house for that function. He could not state whether the function of Jagran Gondhal starts at about 7 to 8 p.m. and ends late by night. It was true that assailants suddenly came there and started beating them. He stated that he or other persons standing with him were not carrying any 12 weapon. There was one criminal case pending against him regarding forgery and cheating. That was regarding encashment of bogus D.D. in the sum of Rs.35,00,000/-. He denied that his deposition was false that one boy came to STD booth and told him that there was quarrel between Pintu Rokade and Baba Shinde. 7. PW 7 – Santosh Sakhahari Gardade, stated that he was in his house at about 0.30 hrs. on 26th June, 2001. His house was near Shivshakti Maidan. Pintu Rokade came to him at about 7.30 p.m. and told him that on account of money of Bishi, Atul Gavali and members of his house had abused him. He and Pintu were going towards Bhagwant Mandir. Baba Shinde was there. There was quarrel between Pintu Rokade and Baba Shinde. He and Pintu came towards Shivshakti Maidan. They were chit-chatting there. They also consumed liquor. They sat there for a long time. At about 9.30 p.m. Amol and Nitin came there by Tata Sumo. Pintu told them that a quarrel had taken place. Then they again chit-chatted for a long time. Then they all went towards his house in order to go back to their houses. When all of them came towards his house, Nitin told them that he would bring Tata Sumo as the house of Amol was at a long distance from that place. He brought there his Tata Sumo. Then he and Nitin Gadve were standing in 13 front of Tata Sumo and Pintu Rokade and Amol were standing near compound talking to each other. He then named all the accused except accused No.5 and stated there were weapons like swords, gaj sticks, iron bar, cycle chain, and the accused started beating them. Baba Shinde, accused No.1, caused injury to Nitin Gadve on his right thumb. Accused No.6 beat him by iron bar and accused No.4 beat him by stick. Then they went to Pintu and Amol. All of them beat Pintu and Amol. At that time persons, namely, Raja Golve, Ramakant Surve and Raja Rokade, etc. had gathered there. The accused then ran away from the place. Nitin Gadve took injured Pintu to Jagdalemama Hospital and Rama Surve and Raja Gholve took him and Amol to the hospital. Doctors declared that Pintu was dead. His house was at the distance of 1 to 15 ft. from the spot of incident. There was electric light of Nagar Palika and because of this light they could see the occurrence. He could identify the accused before the Court. In his cross-examination, he, however, stated that Baba Shinde went to the police station for filing complaint after the quarrel between Baba Shinde and Pintu. After he saw Baba Shinde going to the police station, he and Pintu came to Shivshakti Maidan. He did not remember whether there was sword with Pintu while there was quarrel between accused No.1 and 14 Pintu Rokade near Bhagwant temple. He did not remember whether there was any weapon with Pintu. There was no weapon with him. He also admitted that there were many criminal cases lodged against him, Pintu Rokade and Amol Sidhodkar. Doctors examined him when he was admitted in the hospital. Doctors asked him the cause of injuries and name of persons who had caused the injuries. He told this detail to the police. He could not say when the police came to the hospital. His statement was recorded by the police in the hospital. He denied the suggestion that he had deposed falsely that there was electric tube light of Nagar Palika and he had seen the incident because of the light. He, however, stated before the police that he had seen the incident in tube light. He could not give any reason why such statement was not a part of the statement recorded by the police. He was admitted in hospital for five days. During that time he did not go out of the hospital. He also stated that it was true that the names of accused Nos.7 and 8 were not given by him in his statement before the police on 26th June, 2001. He also stated that it is true that the words “and 2-3 persons” are added to the first line of page 2 of his statement dated 26th June, 2001. The said words were further narrated by him to police to add. His supplementary statement was recorded on 2nd July, 2001. It was true that for the first time he gave the names of accused Nos.7 and 8 to the Police on 15 that day. He denied that letters “and 2-3” added in his statement dated 26th June, 2001 were added on 2nd July, 2001. He did not remember whether the words `Jeep Ne' were subsequently added in his statement before the police dated 26th June, 2001 at the end of line No.5 from bottom. He did not remember when it was written and who had written it. 8. PW 8 – Suresh Madhavrao Gade, is a witness to the seizure of clothes. PW 9 – Dr. Amita Laxman Suryawanshi was working as a Medical Officer, Rural Hospital, Barshi. In her evidence, PW 9 stated that in the morning of 26th June, 2001 she received a phone message that a dead body was brought in hospital for P.M. Examination. She made P.M. of the dead body. The inquest panchnama of the dead body was brought to hospital. It was the dead body of Pintu @ Satish Shankar Rokade. She found following injuries on the dead body: (1) Transverse incised wound running from front of Rt. Pinna towards occiput cutting Rt.pinna of size 12 cm x 1 x 1.5 cm. Deep upto brain matter. (2) Incised wound over verte of head Rt. Side running transversely of size 6 cm x 1.5 cm. X 2 cm. upto brain. (3) Incised wound Medical end of Rt. Eye towards forehead size 5 x 1.4 x 1 cm. (4) Incised wound – Rt. Angle of mouth towards cheek 6 cm x 2 x 1 cm. 16 (5) Incised wound – Lt. Angle of mouth towards cheek 4 cm x 3 cm x 2 cm. (6) Incised wound – Transversely incising the chin and mandible also of size 10 cm. x 1 x 5 cm. (7) 3 incised wounds – Rt. Thigh laterally of size 5 x 2 x 1.5 cm., 4 x 1, 5 x 1 and 6 x 2.5 x 1 cm. (8) Two incised wound Rt. Inguinal region of 3 x 1 x ½ cm. and 3.5 x 1 x 1 1/1 cm. (9) Transverse incised wound cutting all 5 toes and of Rt.foot attached at medical and only. (10) Two incised wound below right knee 4 x 1 x 1 cm. 8 x 1 x 1 cm. (11) Rt.thigh medially ½ x ½ x 1 cm. deep. (12) Below Lt. elbow 3 x 1 x 1 cm. (13) Lt. lateral aspect of wrist 7 x ½ x ½ cm. (14) Rt. upper arm 4 x ½ x ½ cm. (15) Right shoulder 1 x ½ x ½ cm. (16) Medial side of Rt. thigh 2 x ½ x ½ cm. She stated that the injuries described at Col. 17 and 18 were definitely ante mortem. The cause of death recorded by her in P.M. report was “Shock due to (1) Extensive hemorrhage from multiple incised wounds and (2) Incised wound over head leading to fatal brain injury. Injuries shown in Col. 17 and 18 could be caused by swords described in Article Nos.25 and 26. She also stated that if the liquor was consumed in small quantity 2-3 hrs. 17 before death, it might not be detected in P.M. Examination. In cross- examination she stated that viscera was not preserved. Blood was preserved. 9. PW 10 is Dr. Sudhir Manbhar Bakare. He was a Consultant Surgeon in the Jagdalemama Hospital. He stated that Pintu Rokade had been brought to the hospital on 26th June, 2001 at about 00.40 a.m. along with his relatives. The physical condition of the patient was bad. Pulse was not recordable. B.P. was also not recordable. There was gasping respiration. The patient was unconscious. There were multiple injuries on his body. Then he gave list of injuries as follows: (1) C.L.W. On Rt. Temporal region with revulsion of Rt. Ear pinna, bone deep with fracture of Rt. Temporal bone measuring 1 1 x 3 cm. (2) C.L.W. Over left frontal region extending Rt. Nasal bone to Rt. Temporal region measuring 10 cm. x 3 cm. with fracture left frontal bone. (3) C.L.W. Over cheek starting from Rt. angle with fracture mandible extending on to left cheek with fracture left mandible grampus