Cri.Appeal No.281/2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.281 OF 2009 1. Ram s/o Manikrao Talekar, Age 23 years, Occu.Business, R/o Khandoba Bazar, Parbhani, District Parbhani 2. Vishnu s/o Dattarao Bansode, Age 24 years, Occu.Milkman, R/o Rameshwar Plot, Parbhani, District Parbhani 3. Taterao s/o Sukharam Raimale, Age 23 years, Occu.Agri., R/o As above 4. Nitesh s/o Prakash Deshmukh, Age 20 years, Occu.Education, R/o Deshmukh Lane, Parbhani, District Parbhani 5. Venkati s/o Munjaji Shinde, Age 22 years, Occu.Khandoba Bazar, Parbhani, Dist.Parbhani ..APPELLANTS VERSUS The State of Maharashtra ..RESPONDENT Mr Shirish Gupte Senior Counsel with Smt. S.S.Jadhav, Advocate for appellants Mr K.G.Patil, Assistant Public Prosecutor for respondent-State Mr R.M.Deshmukh, learned Advocate assisting Assistant Public Prosecutor Cri.Appeal No.281/2009 2 - WITH - CRIMINAL APPEAL NO.489 OF 2009 1. Nitesh s/o Prakash Deshmukh, Age 20 years, Occu.Education, R/o Deshmukh Lane, Parbhani, Taluka & District Parbhani 2. Venkati s/o Munjaji Shinde, Age 22 years, Occu.Education, R/o Khandoba Bazar, Parbhani, Taluka and Dist.Parbhani .. APPELLANTS VERSUS State of Maharashtra ..RESPONDENT Smt. S.S.Jadhav, Advocate for appellants Mr K.G.Patil, Assistant Public Prosecutor for respondent-State Mr R.M.Deshmukh, learned Advocate assisting Assistant Public Prosecutor CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 3rd February 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellants-original accused 1 to 5 stand convicted for offences punishable under Section 147, 149, 302 read with sec. 149, 341 read with section 149 and sentenced to imprisonment for life and to pay fine of Rs.5,000/- each, in default of which to undergo rigorous imprisonment for one year and to pay fine of Rs. Cri.Appeal No.281/2009 3 1,000/- each, in default of which to undergo rigorous imprisonment for three months, simple imprisonment for one month and to pay fine of Rs.200/- in default of which to undergo simple imprisonment for seven days. Original accused No.1, 3 to 5 are further convicted for offence punishable under Section 25(1) (3) of the Indian Arms Act and sentenced to rigorous imprisonment for one month and to pay fine of Rs.500/- with a direction that all the substantive sentences shall run concurrently, by the Sessions Judge, Parbhani, by judgment dated 23.1.2009 in Sessions Trial No.19 of 2008, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus. P.W.46 P.I. Shingade, who was attached as P.I. to the Nanalpeth Police Station, Parbhani was informed by A.S.I. Wahid on 4.2.2007 about murder committed near the Multipurpose High School, Parbhani. P.W.46 P.I. Shingade along with the other police staff rushed to the place of incident. On arriving at the scene of the offence he noticed the dead body of a person lying by the side of an Indigo Car. A crowd had gathered near the scene of the offence and he accordingly directed the persons to stay at certain distance. One Constable Kachwe informed P.W.46 Cri.Appeal No.281/2009 4 P.I. Shingade that the deceased was Punjab Deshmukh. A Photographer namely Nadeem Siddiqui was called to take the photograph of the dead body and the scene of the offence. In order to ensure that there was no law and order problem, P.W.46 P.I. Shingade sent the dead body of deceased Punjab Deshmukh to the Civil Hospital, Parbhani through A.P.I. Khandekar and A.S.I. Siddiqui. Guards were posted at the scene of the incident. P.W. 46 P.I. Shingade learnt that one Dhananjay Deshmukh had arrived at Police Station Nanalpeth and, therefore, he returned back to the police station. He recorded the report of P.W.19 Dhananjay Deshmukh at Exh.110 and on the basis of the said report registered an offence vide Crime No.19/2007 under Section 302, 147 to 149 of the Indian Penal Code and under Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act. The investigation of the said crime was undertaken by P.W.46 P.I. Shingade and, therefore, he visited the scene of the offence again. He had given instructions to A.S.I. Siddiqui to draw the inquest panchnama of the dead body and thereafter he drew the scene of the offence panchnama in the presence of witnesses at Exh.72. The Indigo Car came to be seized and blood from the scene of the offence came to be collected in a plastic container. Cotton swobs were used for drawing the sample of the blood, which was found on the road. The white cushion of the car, which was stained with blood also came to be seized. On the same day Cri.Appeal No.281/2009 5 he recorded the statements of Harbhajansing, Raju Shikhre, Ayyubkhan, Azamkhan Pathan. The clothes of deceased Punjab Deshmukh came to be seized vide Exh.88. The inquest panchnama of the dead body of deceased Punjab Deshmukh came to be drawn at Exh.87 in the presence of panch witnesses. Dead body of deceased Punjab Deshmukh was referred for post mortem examination and post mortem came to be conducted by P.W.1 Dr.Bashir Ahmed Khan. Dr.Bashir Ahmed Khan noticed 23 external injuries : 1. Contused lacerated wound of scalp of size 7 cm x 5 cm x bone deep, periostium and superficial part of bone sliced and margins of injuries are clean incised; 2. CLW of the scalp 14 cm x 10 cm. It is also bone deep along with underline fracture of the skull bone 14 x 10 cm and that fracture was oval shaping, brain matter was exposed at central vertex region, predominantly from the left side of the brain. The margins of the scalp injury were clean and incised; 3. CLW scalp of size 8 x 2 cm. It is also bone deep with linear fracture of the skull on left parieto temporal one, linear fracture was 8 cm; Cri.Appeal No.281/2009 6 4. CLW scalp of size 6 x 2 cm. It is also bone deep with linear fracture of 6 cm of skull on the left temporal bone. Injuries 2, 3 and 4 joint coalesce at base in left side; 5. CLW scalp bone deep clean cut margins having size 16 cm x 4 cm. along with fracture skull bone of size 12 cm x 2 cm. The bone piece was removed and brain matter was exposed. Its region is right parietal to mid line to occipital; 6. CLW scalp having size 8 x 2 cm bone deep clean cut margins along with fracture skull linear on central occipital region of size 6 cm; 7. CLW scalp 8 cm x 3 cm in size bone deep clean cut margins with fracture skull bone of size 6 cm. It is a linear fracture and it is on the right occipital bone starting from just behind the ear up to the mid line; 8. Incised wound on the neck of size 9 cm and depth is 0.5 cm; 9. Abrasion injury having size 2 x 3 cm. It is on the shoulder posterior side; 10. Incised wound having size 4 x 1 cm; 4 cm deep on the left lumber region; Cri.Appeal No.281/2009 7 11. Incised wound of 2 x 1 cm; 4 cm deep it is on the left buttock; 12. Incised wound of size 3 cm x 1 cm. It is 4 cm deep; it is also on the left buttock; 13. Incised wound of size 4 x 1 cm. It is 13 cm deep and it is on the right buttock 14. Incised wound 3 x 1 cm. It is 4 cm deep it is also on the right buttock; 15. Incised wound of 4 x 1 cm. It is 7 cm deep it is placed on the left scapular region; 16. Incised wound of size 31 x 1 cm. It is 1 cm deep; its location is posterior thoracic region extending from left scapular to right scapular region; 17. Incised wound 1 x 1 cm. It is 1 cm deep; it is on scapular region; 18. Incised wound of size 3.5 x 1.5 cm. It is 7 cm deep and it is placed between inter scapular region; 19. Incised wound 3 x 1 cm 6 cm deep. It is on inter scapular region; 20. Incised wound over left clavicular region having size 7 x 1 cm. It is 0.5 deep; Cri.Appeal No.281/2009 8 21. Incised wound of 1 cm x 0.5 cm, 0.5 cm deep. It is over supra-clavicular region; 22. Incised wound of 4 x 1 cm. It is 14 cm deep placed over left pectoral region; 23. Incised wound 3.5 x 1 cm, 5 cm deep over pubic region On internal examination he noticed that the brain was lacerated from the skull vertex region predominantly on the left side. He opined that all the injuries were ante mortem injuries and expressed his opinion that cause of death was haemorrhagic shock due to intra-cranial haemorrhagic due to head injuries with fracture skull. The post mortem report is at Exh.65. 3. On 5.2.2007 accused Kishan Chandane came to be arrested vide arrest panchnama at Exh.212. On the same day statements of Prabhakar Savne, Baban Deshmukh, Vijay Ambhore, Ramrao Rathod, and others and A.S.I. Gaikwad came to be recorded. Documents of TATA Sumo vehicle came to be produced which was seized in the presence of panchas under seizure memo at Exh.73. The TATA Sumo which was found near the Canal also came to be seized. Certain books relating to Hindu religion and philosophy, a diary and packet containing chilly powder etc. along Cri.Appeal No.281/2009 9 with three sticks and two iron rods and a sword came to be seized in the presence of panchas vide seizure memo at Exh.213. On 6.2.2007 statements of certain witnesses came to be recorded and six other accused came to be arrested on the next day under arrest panchnama at Exh.214 to 219. On 8.2.2007 Rama Gaikwad came to be arrested and on 10.2.2007 accused Laxman Gaikwad came to be arrested vide arrest panchnama at Exh.220 to 221. The clothes of accused Vishnu came to be seized vide seizure memo at Exh.119 in the presence of panchas. During custodial interrogation accused Rama Talekar expressed his willingness to point out the place where the sword was hidden by him. Accordingly, his memorandum came to be recorded at Exh. 82. Accused Rama Talekar was then asked to sit in the jeep and thereafter accused Vishnu Bansode was called for interrogation and in the presence of panchas accused Vishnu expressed his willingness to point out the place where the iron rod was hidden by him. The memorandum of accused Vishnu is at Exh.83. Accused Vishnu was then asked to sit in the jeep. Thereafter accused Tatya Raimale was interrogated and he expressed his willingness to point out the place where the sword was hidden and accordingly, a memorandum came to be drawn in the presence of panchas at Exh.84. Accused Tatya was then asked to sit in the jeep. Accused Nitesh Deshmukh was interrogated and during interrogation, accused Nitesh expressed his willingness to Cri.Appeal No.281/2009 10 point out the place where sword was hidden by him. Accordingly, memorandum at Exh.85 came to be drawn in the presence of panchas. Accused Nitesh was thereafter asked to sit in the vehicle. A magnet and a rope was called for and the Police, panchas and the accused accordingly proceeded to the place pointed out by accused Rama Talekar and other accused. The vehicle was stopped near a farm house and the accused pointed out a Well in the form and accordingly Head Constable Boke tied the magnet to a rope and thereafter lowered the magnet in the Well. On the magnet being pulled out, a sword attached to the magnet also came out of the Well. Thereafter the sword was seized and sealed and the magnet was lowered in the Well again and this time an iron rod was found attached to the magnet. In this manner three swords and an iron rod came to be seized vide panchnama at Exh.86. 4. On 10.2.2007 accused Rama Talekar, Nitesh Deshmukh and Tatya Raimale produced the clothes, which were seized in the presence of panchas vide seizure memo at Exh.120 to 122. On 12.2.2007 accused Venkati expressed his desire, during interrogation, to produce a sword which was hidden by him in the Canal as well as his clothes, which were hidden by him in the field. Accordingly, memorandum at Exh.104 came to be drawn in the presence of panchas. Accused Venkati then took the Police Cri.Appeal No.281/2009 11 and the panchas and produced a sword from the Canal, which came to be seized in the presence of panchas. Thereafter accused Venkati took the Police and the panchas towards his field and from a tin shed produced his clothes, which came to be seized in the presence of panchas. The panchnama is at Exh.105. Specimen handwriting of accused Rama Talekar came to be obtained in the presence of panchas under panchnama at Exh. 166 and the specimen writing are at Exh.159 to 165. On 16.2.2007 the mobile handset of accused Ganesh came to be seized in the presence of panchas vide seizure memo at Exh.224. Similarly, on 19.2.2007 mobile of accused Vishnu came to be seized in the presence of panchas vide seizure memo at Exh.225 and the mobile of accused Baban came to be seized in the presence of panchas at Exh.123. The seized articles were referred to the Chemical Analyzer along with requisition at Exh.76 and 77. The specimen handwriting of accused Rama Talekar was also forwarded to the handwriting expert at Aurangabad along with the letter at Exh.78. The sketch map of the scene of the incident was drawn by the Circle Inspector at Exh.80. Statements of witnesses came to be recorded under Section 164 of the Code of Criminal Procedure and further to the completion of investigation, a charge-sheet against the accused came to be filed. Cri.Appeal No.281/2009 12 5. On committal of the case to Court of Sessions, charge vide Exh.34 came to be framed for offence punishable under Section 302 read with sec.149, Section 120-B read with Sec.149, Section 147, 427 read with Sec.149, Section 341 read with Sec.149 and Section 201 of the Indian Penal Code and under Section 25(1) (3) of the Arms Act and under Section 135 of the Bombay Police Act, against the eleven accused. The trial Court convicted accused 1 to 5 for the offences afore stated and acquitted the other accused. Prosecution in support of its case had examined 46 witnesses while the accused in their defence had examined one witness. The prosecution principally relied upon the evidence of solitary eye witness, i.e. P.W.18 Baburao and also relied upon the evidence of the other witnesses relating to the aspect of motive. The other eye witnesses did not support the prosecution and were declared hostile. 6. In order to appreciate the submissions advanced before us by Mr Shirish Gupte, learned Senior Counsel and Smt. S.S. Jadhav, learned Counsel for the appellants appearing in the two appeals and the learned Assistant Public Prosecutor for the State, it would be useful to refer to the evidence of the prosecution witnesses. 7. First information report came to be lodged by P.W.19 Dhananjay, brother of deceased Punjab Deshmukh. P.W.19 Cri.Appeal No.281/2009 13 Dhananjay states that he is Sarpanch of Grampanchayat Zadgaon and at the time of incident studying in B.A. Second year. Deceased Punjab was his brother. He states that he and his brother Punjab were wrestlers from the Gymnasium of one Santosh Gujar. The Gymnasium of Santosh Gujar is by the side of a flyover of Parbhani. He states that all the accused are wrestlers of the Gymnasium of Maroti Pahelwan. Gymnasium of Maroti Pahelwan is situated near Khandoba Bazar, Parbhani and accused Vishnu is brother of Maroti Pahelwan. Accused Ganesh and accused Baban are the cousins of Maroti Pahelwan while accused Kishan was their relative. He states that the wrestlers of the Gymnasium of Santosh Gujar and the wrestlers from the Gymnasium of Maroti Pahelwan were rivals. In 2006 wrestling competitions were organised in which P.W.19 Dhananjay had participated and in that competition the wrestlers from the Gymnasium of Maroti Pahelwan had lost the wrestling bouts. Maroti Pahelwan was annoyed on account of the defeat and, therefore, quarrel had ensued between the wrestlers of Santosh Gujar and Maroti Pahelwan. On the same day in the evening one Rajesh Chavan was assaulted by Maroti Pahelwan and his associates near the Khandoba Bazar. Rajesh Chavan was the wrestler from the Gymnasium of Santosh Gujar. On the basis of the report of Rajesh Chavan offence punishable under Section 307 of the Indian Penal Code was registered at Police Station, Cri.Appeal No.281/2009 14 Nanalpeth, Parbhani. On the next day of the incident Maroti Pahelwan was mercilessly assaulted at the bridge at village Khali near Gangakhed. Maroti Pahelwan had sustained serious injuries to his legs and had accordingly lodged a report against P.W.19 Dhananjay, deceased Punjab Deshmukh, Santosh Gujar and his associates. P.W.19 Dhananjay states that they were arrested in the said crime but were released on bail. According to P.W.19 Dhananjay, Maroti Pahelwan was under the impression that he had been attacked by P.W.19 Dhananjay and his brother Punjab and, therefore, was keen to seek revenge. Maroti Pahelwan meanwhile was receiving treatment at a hospital in Mumbai and Maroti Pahelwan conspired by the other accused for assaulting Dhananjay and Punjab. Soon after the Zilla Parishad elections Punjab had gone to Pingli and from Pingli he had gone to Tadlimla about 15 to 20 days prior to the incident. While deceased Punjab and Vaijnath were returning to Pingli on their motorcycle, a white coloured TATA Sumo bearing registration No.MH-06-C-3367 tried to run over their motorcycle with an intention to kill them. Dhananjay states that he was informed about the incident by Punjab on telephone and after the incident Punjab came to Pingli. When Dhananjay had gone to Pingli, Punjab had informed him that he had seen accused Rama Talekar driving the TATA Sumo and accused Venkati, Vishnu, Baban, Ganesh Mirase, Rama Gaikwad, Laxman Gaikwad, Kishan Chandane were travelling in Cri.Appeal No.281/2009 15 the TATA Sumo. Dhananjay further states that Punjab informed him that the accused were stating that Punjab was saved but he would be killed subsequently. Dhananjay has admitted that the said incident was not reported by them to anyone. Dhananjay then states that he and Punjab returned to their village by the Paralgavan route and had inquired about the owner of TATA Sumo and learnt that the vehicle stood in the name of one Ayyubkhan s/o Amjadkhan. On enquiry from Ayyubkhan they learnt that he had sold the vehicle to Rama Talekar and the document of sale was notarized. Ayyubkhan further disclosed to them that the sale consideration was paid by Rama Talekar through Baban Bansode, Vishnu Bansode, Ganesh Mirase in two to three installments. Dhananjay further deposed that he had observed that the TATA Sumo was always seen moving in the vicinity of flyover at Parbhani as deceased Punjab Deshmukh used to stay at Gymnasium of Santosh Gujjar whenever he visited Parbhani. 8. In respect of the incident he states that on 4.2.2007 he and Punjab had come to Parbhani around 11.30 to 12.00 noon and had stopped near Zilla Parishad, Parbhani. AT about 12.45 to 1.00 p.m. Punjab went in a white Indigo Car with Harbhajansing and at about 2.30 p.m. Rama Gujjar informed him that Punjab Deshmukh was killed by 7 to 8 persons, who had come in TATA Sumo vehicle near the Multipurpose High School on the road Cri.Appeal No.281/2009 16 passing in front of State Bank of Hyderabad. On receiving the said information, P.W.19 Dhananjay accompanied by Rama Gujjar went to the Civil Hospital, Parbhani and noticed that the dead body of Punjab had been brought in a Police vehicle. He had noted the injuries sustained by Punjab and thereafter had gone to the Police Station, Nanalpeth and had submitted his report at Exh. 110. He further states that while he was at the Police Station, Harbhajansing met him and thereafter he had submitted the report. P.W.19 Dhananjay states that Harbhajansing informed that while they were going in the vehicle, one TATA Sumo had intersected their car and 5 to 6 persons alighted from TATA Sumo and Harbhajansing informed that accused Vishnu, Rama Talekar, Venkati Shinde, Taterao Raimale, Nitesh Deshmukh. Harbhajansing also informed that deceased Punjab had asked Harbhajansing not to stop the car as the assailants were from the Gymnasium of Maroti Pahelwan and would kill him. 9. ,In cross-examination he has admitted that the wrestling room is well established. He has denied the suggestion that deceased Punjab Deshmukh used to earlier attend the wrestling room of Maroti Pahelwan. He has further admitted that often the wrestlers from the Gymnasium of Maroti Pahelwan used to win the wrestling competitions, while at times they had also lost the wrestling competition. He has also admitted that deceased Cri.Appeal No.281/2009 17 Punjab Deshmukh used to come to Parbhani everyday from Zadgaon on a motorcycle. Distance between Zadgaon and Parbhani is 15 to 20 kms. He has further admitted that neither he nor Punjab Deshmukh were present at the time of the incident of assault at the Khali bridge. He has further admitted that he considered the incident as serious in which a TATA Sumo had attempted to kill Punjab Deshmukh. He has admitted that he had not lodged a report against anyone. He has further admitted that when he reached the Parbhani hospital, some people had gathered there and 2 to 3 Policeman were also present. He has admitted that he had informed the Police that he was brother of deceased Punjab. He has further admitted that he was in the Parbhani hospital for about half an hour. He has admitted not to have disclosed anything to the Police in the Parbhani hospital. Omission has been duly proved that he had not stated in his report that Venkati Shinde, Ganesh Mirase, Baban Bansode, Nitesh Deshmukh, Vishnu Bansode, Laxman Gaikwad, Rama Gaikwad, Kishan Chandane were the wrestlers. Omission has also been proved that he had not stated in his report at Exh.110 that Ganesh Mirase was the son of maternal aunt of Maroti Pahelwan. Omission has been duly proved that he had not stated in his report at Exh.110 that the other accused were the disciples of Maroti Pahelwan. Omission has been duly proved that he had not stated in his report at Exh.110 that Maroti Pahelwan while at Cri.Appeal No.281/2009 18 Bombay had conspired to kill and the conspiracy was hatched on the mobile phone. Omission has been also proved that he had not stated in his report at Exh.110 that Punjab Deshmukh had informed him about the incident on way to Pingli and had called P.W.19 from Pingli. Omission has been duly proved that he had not stated in his report that Punjab Deshmukh had told him about the incident at the house of Jagannath Garud. Omission has also been proved that he had not stated in his report that Punjab Deshmukh had informed him at the house of Jagannath Garud that the assailants were saying that he had escaped on the earlier occasion but would be killed the next time. Omission has been duly proved that he had not stated in his report that he and Punjab Deshmukh had enquired to whom the TATA Sumo belonged and learnt that it belonged to one Ayyubkhan. Similarly, omission has been duly proved that he had not stated in his report that Ayyubkhan was called near the flyover bridge and on enquiry he had disclosed that he had sold the TATA Sumo to Rama Talekar and that the agreement was executed before the Notary. Omission has also been proved that he had not stated in his report that Ayyubkhan told him that the consideration was paid in two to three installments by Baban Bansode, Vishnu Bansode and Mirase. Omission has also been proved that he had not stated in his report that TATA Sumo bearing registration No.MH-06-C-3367