AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.470 OF 1987 1. Vijay Vishnu Gangurde ) 2. Sanjay Vishnu Gangurde ) Both residents of Pimpalgaon) Baswant, Taluka Niphad, ) District Nasik. ) (At present in Central Prison) Nasik Road, District Nasik.)) ... Appellants (Orig. Accused 2 & 11) Versus The State of Maharashtra ) ... Respondents Mr. Shirish Gupte with Mr. Harshad Palwe for the appellants (orig. accused 2 and 11). Mr. B. H. Mehta, A.P.P. for the State. ALONG WITH CRIMINAL APPEAL NO.490 1987 Bhagwan Ratan Gangurde, age 28 ) years, R/o. Pimpalgaon, Baswant) Taluka Niphad, District Nasik. ) ... Appellant (Orig. Accused 4) Versus The State of Maharashtra ) ... Respondents Ms. Sharmila Kaushik, advocate appointed as per court’s order dated 9/08/2004 for the appellant (orig. accused 4). Mr. B.H. Mehta, A.P.P. for the State. CORAM: CORAM: CORAM: SMT. RANJANA DESAI & SMT. RANJANA DESAI & SMT. RANJANA DESAI & A.S. A.S. A.S. OKA, JJ. OKA, JJ. OKA, JJ. DATED: DATED: DATED: 12TH OCTOBER, 2004. 12TH OCTOBER, 2004. 12TH OCTOBER, 2004. : 2 : ORAL JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. The present appeals involve same facts and identical contentions and, hence, it is advantageous to dispose them of by a common judgment and, hence, this common judgment. 2. The appellants in Criminal Appeal No.470 of 1987 (for convenience, "accused 2 and 11 respectively") and the appellant in Criminal Appeal No.490 of 1987 (for convenience, "accused 4") along with nine others (for convenience, "accused 1, 3, 5 to 10 and 12 respectively") were tried in Sessions Case No.19 of 1986 in the Sessions Court at Nasik. The accused were charged for the offences punishable under sections 147, 148, 302 read with sections 149, 302, 307, 326 and 324 of the Indian Penal Code (for short, "the IPC"). 3. At the trial, the prosecution story was as follows. Accused 1 Vishnu and accused 3 Ratan are real brothers. Accused 2 Vijay, accused 10 Sahebrao and accused 11 Sanjay are the sons of accused 1 Vishnu, while accused 4 Bhagwan and accused 5 Sunil are the sons of accused 3 Ratan. Accused 12 Drupadabai is the wife of accused 1 Vishnu. Nirmala is her daughter. Being a juvenile offender, a separate charge-sheet was filed against Nirmala in juvenile court. PW-1 Gautam, PW-8 Vasant, PW-10 Prakash, PW-18 Shirish and Sham and Dinkar are real brothers. PW-12 Sangita is their married sister. PW-11 : 3 : Indubai is the wife of PW-8 Vasant. Ramdas was their son. Dinkar resides with his wife and children at Chandwad while PW-8 Vasant resides with his wife and children at Pimpalgaon separate from rest of his brothers, who stay jointly with their parents, wives and children. The accused and the prosecution witnesses, except Dinkar, stay in the locality known as Rajwada at Village Pimpalgaon. It is inhabited by Hindu Boudha persons. 4. It is the case of the prosecution as made out in Ex-19, the complaint of PW-1 Gautam, that there was enmity between the prosecution witnesses on the one hand and the accused on the other, on account of some past disputes. According to the prosecution, on 2/10/1985, at about 9.00 p.m., PW-1 Gautam, PW-18 Shirish, PW-11 Indubai, PW-12 Sangita were in their house and were taking meals. At that time, accused 1 Vishnu, his wife accused 12 Drupadabai, his sons, accused 2 Vijay, accused 10 Sahebrao and accused 11 Sanjay, his daughter Nirmala, accused 4 Bhagwan, accused 5 Sunil, their father accused 3 Ratan came in front of their house and started abusing in filthy language. Therefore, PW-1 Gautam started going to the police station to file a complaint. When he came near Ganpati temple in village market at Pimpalgaon, the aforesaid persons came there with sticks, gupti and knives in their hands. They were also accompanied by accused 7 Anil, accused 6 Suresh, accused 8 Kailash, one Rajkumar and accused 9 Kamlesh. They started abusing : 4 : PW-8 Vasant, PW-10 Prakash and deceased Ramdas. Then deceased Ramdas was stabbed by accused 11 Sanjay with his knife on his stomach. There was a bleeding injury. PW-18 Shirish was then stabbed with knife by accused 2 Vijay. Accused 2 Vijay and accused 4 Bhagwan dealt gupti blows to PW-1 Gautam on his chest and stomach, causing bleeding injuries. PW-8 Vasant was then assaulted by all these persons. Accused 1 Vishnu and accused 2 Vijay dealt gupti blows on the stomach of PW-8 Vasant. The remaining persons gave kicks and fist blows. Accused 9 Kamlesh, accused 5 Sunil, accused 3 Ratan, accused 2 Vijay and accused 11 Sanjay assaulted PW-8 Vasant with knife and kicks. All of them were injured and lying at the place of incident. PW-10 Prakash somehow managed to reach the police station, but his condition was serious and, therefore, his statement could not be recorded. He was immediately shifted to the Civil Hospital, Nasik. 5. PW-14 Head Constable Jadhav was on patrolling duty on 2/10/1985 from 8.00 p.m. onwards. At about 10.00 p.m., when he was at Niphad Fata, one person informed him about the incident going on in Rajwada near village gate. He proceeded to that place and found that a crowd had gathered there and two injured persons were lying near Ganpati temple. He arranged to send those two injured persons to the dispensary at Pimpalgaon. He gave phone message about the incident to the police station officer. PW-19 ASI Gholap was present in Pimpalgaon police station. At about 10.30 p.m. he was asked by police : 5 : station officer to go to Rajwada as some incident had taken place. Accordingly, PW-19 ASI Gholap came there and found that PW-8 Vasant, his son deceased Ramdas, PW-10 Prakash and PW-18 Shirish were lying injured. He put them in a taxi and brought them to the dispensary at Pimpalgaon. The medical officer on duty advised immediate removal of these persons to the Civil Hospital, Nasik. Accordingly, they were shifted to the Civil Hospital, Nasik by PW-19 ASI Gholap. While admitting in the hospital, deceased Ramdas died. 6. PW-21 PSI Patil attached to the Pimpalgaon police station kept police guard at the scene of offence. At 12.00 midnight, he received a message about the death of deceased Ramdas in the hospital from police constable Pathan. PW-21 PSI Patil instructed Pathan to ask PW-19 ASI Gholap to record the complaint of any of the injured persons, who was in a position to speak. Accordingly, PW-19 ASI Gholap recorded the complaint of PW-1 Gautam, which is at Ex-19. It was sent to the Pimpalgaon police station for registering the offence. This complaint was brought by PW-15 police constable Panpatil at 6.15 a.m. on 3/10/1985. PW-21 PSI Patil then registered the offence. PW-20 ASI Gurhale came to the Civil Hospital, Nasik, at 3.00 p.m. and recorded supplementary statement of PW-1 Gautam and the statements of PW-18 Shirish and his brother Sham. He found that the other injured persons were not in a position to speak. On 4/10/1985, he recorded the statements of PW-11 Indubai, Sakhubai and : 6 : PW-12 Sangita, but he could not record the statements of the injured persons even on that day. Even on 5/10/1985, they were unable to speak. 7. During the course of investigation, panchnama of scene of offence was drawn. The accused were arrested. Their clothes were taken charge of. At the instance of some of the accused, some weapons were recovered. The accused were also examined to find out whether there were any injuries on their persons. Post-mortem was conducted on the corpse of deceased Ramdas. Prosecution witnesses were examined and their injury certificates were obtained. Operation was performed on PW-8 Vasant as his injury was serious. After completion of the investigation, the accused came to be charged as aforesaid. 8. In short, the case of the prosecution was that on account of past enmity, accused 1 to 12 formed an unlawful assembly with the common object of assaulting the aforesaid witnesses and attempting to commit their murder and in prosecution thereof, caused various injuries to the aforesaid witnesses and caused the murder of Ramdas Gangurde. 9. At the trial, the prosecution examined as many as 21 witnesses. Out of them, PW-1 Gautam, PW-8 Vasant, PW-10 Prakash and PW-18 Shirish are injured witnesses. PW-1 Gautam is the complainant. PW-11 Indubai and PW-12 : 7 : Sangita are the eye-witnesses. PW-6 Dr. Ashtaputre had done post-mortem on the corpse of deceased Ramdas. PW-7 Dr. Savkar has examined some of the prosecution witnesses and accused 11 Sanjay and accused 12 Drupadabai. PW-9 Dr. Dey examined accused 2 Vijay. PW-16 Dr. Pawar had performed operation on PW-8 Vasant. The details of investigation have been given by PW-15 PC Panpatil, PW-20 ASI Gurhale and PW-21 PSI Patil. 10. The defence of the accused was one of denial. Accused 1 and 10 took up the defence of alibi. Accused 6, 9 and 10 stated that they are not concerned with the incident and they are falsely implicated. Accused 2, 11 and 12 were taking meals in their house with Nirmala when Dinkar came in front of their house and started abusing them. They, therefore, went to the police station and lodged a complaint against Dinkar. While they were returning from the police station, they came in front of the shop of Bhavsar, when Dinkar and his brothers surrounded and assaulted them. They raised hue and cry and because of that residents of Rajwada gathered there. They intervened and, therefore, the accused could escape and reach the police station. For this incident, accused 11 Sanjay had lodged a complaint. It is suggested by the accused that the residents of Rajwada assaulted the prosecution witnesses because they were harassing the females and children. It is because of this assault that the prosecution witnesses received injuries. The remaining accused stated that they were falsely : 8 : implicated due to enmity. 11. After perusing the evidence on record, the trial court held that the prosecution had failed to prove that accused 1 to 12 formed an unlawful assembly, the common object of which was to assault and commit murder of the prosecution witnesses. The learned Sessions Judge further held that accused 2 Vijay and accused 11 Sanjay committed murder by intentionally causing the death of deceased Ramdas in furtherance of their common intention. He further held that accused 2 Vijay and accused 11 Sanjay had attempted to commit murder of PW-8 Vasant and PW-10 Prakash. He further held that accused 2 Vijay and accused 11 Sanjay had voluntarily caused grievous hurt to PW-1 Gautam, PW-8 Vasant, PW-10 Prakash and PW-18 Shirish by sharp and cutting objects and accused 4 Bhagwan is proved to have caused grievous hurt to PW-10 Prakash by sharp and cutting object. The learned judge held the charge of criminal intimidation as not proved. He held that accused 2 Vijay and accused 11 Sanjay had committed offences punishable under sections 302, 207, 326 read with section 34 of the IPC and accused 4 Bhagwan is proved to have committed offence punishable under section 324 of the IPC. He came to the conclusion that the prosecution has failed to prove the charges against the other accused. In the circumstances, he convicted accused 2 Vijay and accused 11 Sanjay for the offences under section 302 read with section 34 of the IPC and sentenced them to suffer R.I. for life. For the offence : 9 : under section 307 read with section 34 of the IPC, each of them were sentenced to suffer R.I. for a period of seven years. No separate sentence is awarded for the offences punishable under sections 326 and 324 read with section 34 of the IPC. Accused 4 Bhagwan was sentenced to suffer R.I for one year for offence under section 324 of the IPC. He was acquitted of all the other charges. All the other accused were acquitted of all the charges levelled against them. Being aggrieved by this judgment and order accused 2, 4 and 11 have approached this court. 12. We have heard, at some length, Mr. Shirish Gupte and Mr. Palwe, the learned counsel appearing for accused 2 Vijay and accused 11 Sanjay, Ms. Sharmila Kaushik, advocate appointed for accused 4 Bhagwan and Mr. Mehta, the learned A.P.P. for the State. With the assistance of the learned counsel, we have gone through the entire evidence and other record. 13. Mr. Gupte and Mr. Palwe, the learned counsel appearing for accused 2 Vijay and accused 11 Sanjay contended that the prosecution has failed to prove its case against accused 2 Vijay and accused 11 Sanjay. Mr. Gupte contended that all the witnesses are interested witnesses and, hence, their evidence will have to be appreciated with caution. Their evidence is replete with major omissions and, hence, it does not inspire confidence. The learned counsel contended that whereas all the witnesses in the court wanted to suggest that : 10 : PW-18 Shirish came after deceased Ramdas and PW-10 Prakash had received injuries and fallen down, it is clear from the cross-examination of PW-18 Shirish that before the police he had given a completely contrary version. He had deposed about the assault on all the prosecution witnesses. The learned counsel submitted that this suggests that the prosecution has not come out with the entire truth. He submitted that the prosecution has suppressed the genesis of the case. So far as the assault on deceased Ramdas is concerned, the prosecution witnesses are not consistent. PW-8 Vasant, the father of the deceased had stated that he did not see where his son deceased Ramdas received injury. The learned counsel contended that it is inconceivable that PW-8 Vasant would not have seen where his son deceased Ramdas received injury. This makes the prosecution story shaky. The learned counsel further contended that in his evidence, PW-10 Prakash has admitted that he went to the police station after the incident and accused 2 Vijay and accused 11 Sanjay and some other accused were already there at the police station. However, his complaint was not recorded. In the opinion of the learned counsel, if PW-8 Vasant had reached the police station, the police ought to have recorded his statement. The fact that the police have not recorded his statement and accused 2 Vijay and accused 11 Sanjay were present in the police station suggests that the incident did not take place in the manner in which the prosecution wants us to believe it took place. The learned counsel further contended : 11 : that this is affirmed by the fact that the accused have also suffered injuries. Accused 12 Drupadabai has suffered a fracture. These injuries have not been explained by the prosecution. This also casts a shadow of doubt on the prosecution story. The learned counsel further submitted that there is a delay in recording the FIR, which also suggests the falsity of the case. It was further contended that the alleged discoveries of weapons, at the instance of the accused, are from open places, which are easily accessible to the public and, hence, the discoveries ought to have been discarded and the learned judge erred in placing reliance on them. 14. Mr. Palwe, the learned counsel added that the complainant has not clearly stated in the FIR that accused 2 Vijay assaulted the deceased. He further contended that all the witnesses have stated that deceased Ramdas received injuries on his stomach whereas deceased Ramdas had received injuries on his chest, which proved to be fatal and, therefore, assuming this court comes to the conclusion that the accused are responsible for them, the accused could be only convicted under section 304, Part II of the IPC. He submitted that this is further clear from the fact that all the accused did not come together and, therefore, the intention to commit murder or pre-planning can never be attributed to the accused. The learned counsel also drew our attention to the evidence of PW-21 Investigating Officer PSI Patil and PW-14 HC Jadhav, which according to him, show that at the : 12 : scene of incident, there was no light. He submitted that the lights were switched off and there was total darkness and, as such, the identification made by the prosecution witnesses is doubtful. Mr. Palwe also drew our attention to the evidence of PW-3 Pathare, who is pancha to panchnama, under which accused 2 is said to have discovered the weapon of assault. He submitted that the pancha has stated that he has only signed the panchnama. The pancha has not reproduced the statement of accused 2. Therefore, this pancha appears to be a got up pancha. The learned counsel also contended that PW-4 Baburao, who is pancha to panchnama, under which accused 11 is said to have discovered the weapon of assault, has stated in his evidence that he has acted as pancha previously on two to four occasions. The learned counsel contended that this pancha is a habitual pancha and, therefore, his evidence is doubtful and the same ought not to have been relied upon. In the circumstances, the learned counsel contended that the order of conviction and sentence deserves to be set aside and, in any case, offence under section 302 is not made out and, at the most, accused 2 Vijay and accused 11 Sanjay could be convicted only under section 304, Part II of the IPC. 15. Ms. Kaushik, the learned counsel for accused 4 contended that so far as accused 4 Bhagwan is concerned, there is hardly any evidence against him. She submitted that whereas some of the witnesses have stated that accused 4 Bhagwan was having gupti in his hand, PW-1 : 13 : Gautam has stated that accused 4 was having gupti and stick in his hand. In the cross-examination, he has stated that accused 4 had a stick with him and he assaulted the prosecution witnesses with a stick. The learned counsel also pointed out from the evidence of PW-12 Sangita that though in the court she has stated that accused 4 was having a gupti when he assaulted deceased Ramdas, PW-8 Vasant, PW-1 Gautam and PW-18 Shirish, PW-10 Prakash, Dinkar and Shyam, she has not stated so in her police statement. The learned counsel further pointed out that whereas PW-18 Shirish has stated that accused 4 Bhagwan had a gupti, he has not stated so in his police statement. The gupti allegedly recovered at the instance of accused 4 has no blood stains. There were no blood stains on his clothes also. In the circumstances, the learned counsel submitted that accused 4 deserves to be acquitted. 16. Mr. Mehta, the learned A.P.P. has contended that the order of conviction and sentence be confirmed. He submitted that in the nature of things considering the manner in which the assault took place and other attendant circumstances, the prosecution witnesses cannot be expected to be consistent on all minor details. There are bound to be some inconsistencies in their evidence. That, however, does not make the prosecution story false. He submitted that all the witnesses are consistent so far as the role of accused 2 Vijay and accused 11 Sanjay is concerned. They are also consistent about the role of : 14 : accused 4 Bhagwan. The learned counsel contended that the delay in recording the FIR and the statements is properly explained by the prosecution. The evidence of PW-16 Dr. Pawar and PW-21 PSI Patil establishes the prosecution story that the witnesses were not in a position to make any statements due to the injuries suffered by them. Learned A.P.P. further contended that the discovery of weapons at the instance of the accused, has been rightly believed by the learned Sessions Judge. He pointed out that the clothes of the accused had blood stains. Relying on the decision of the Supreme Court in State of Maharashtra v. Milind and others, 2000 AIR SCW 4303, the learned A.P.P. contended that the injuries received by the accused are minor and, therefore, assuming that they are not explained, that will not have any adverse impact on the prosecution story. He urged that this court should not disturb the order of conviction and sentence. 17. We have given our anxious consideration to the submissions advanced by both sides. Before we deal with the rival submissions and the evidence, it is necessary to note that the prosecution has led some evidence to suggest that there were some disputes between the accused and the deceased. It appears that on account of the said disputes, the prosecution witnesses were holding a grudge against the accused. What seems to have really preceded the incident in question is the quarrel which took place between Dinkar and accused 11 Sanjay before the incident : 15 : in question. This is admitted by PW-12 Sangita in her evidence. However, even if it is accepted that the prosecution has failed to prove the motive, when there is consistent eye-witness account, the motive receeds in the background. The evidence adduced in this case will have to be appreciated keeping this in mind. 18. In order to appreciate the circumstances under which the assault on the prosecution witnesses took place and the seriousness of the incident, it would be necessary to first have a look at the medical evidence. PW-6 Dr. Ravindra Ashtaputre had done post-mortem on the corpse of deceased Ramdas. PW-6 Dr. Ashtaputre found the following external injuries. "1. Punctured wound on chest right side 2" lateral and little above the right niple size 1" x 1/2" x 5". 2. Punctured wound on abdomen on left lumber region 1/2" x 1/2" x 1". 3. Punctured wound on back of left elbow 1" x 1/2" x muscle deep, muscle exposed. 4. Superficiely incised wounds on left palm, near left thung index finger and middle finger." : 16 : He found the following internal injuries on the corpse of deceased Ramdas. "Brain was pale. Thorax-there was fracture of 3rd rib below injury No.1. There was tear of right pluera below injury No.1 corresponding to external injury No.1. There was punctured wound on right lung 1/2" in depth corresponding to injury No.1. There was heaemothorax-left lung was pale." 19. According to PW-6 Dr. Ashtaputre, these injuries were sufficient to cause death in the ordinary course of nature particularly injury no.1. When Muddemal article 32, 33 and 34 were shown to him, PW-6 Dr. Ashtaputre stated that the external injuries could be caused by any one of these weapons. The cause of death, according to PW-6 Dr. Ashtaputre, was shock due to internal haemorrhage due to rupture of lung. 20. PW-7 Dr. Vishwas Savkar was attached to the Civil Hospital, Nasik as Medical Officer. On 3/10/1985 at 12.45 p.m. he examined PW-18 Shirish PW-8 Vasant, PW-10 Prakash, PW-1 Gautam. He found the following injuries on the person of PW-18 Shirish. : 17 : "(i) Incised wound in right hypochondria region 3 cm. above costal region costal margin 1.5 cm. x 0.5 cm. 0.5 cm. muscile deep (ii) Incised wound in left second inter costal region starting from parasternal line laterally 1.5 cm. x 0.5 cm. x 0.5 cm. (iii) Contused Lacerated Wound on frontal region 4 cm. x. 0.5 x 0.5 cm. skin deep placed in anterioposterior direction. All the injuries were within 24 hours. Injury No.1 and 2 caused by sharp and cutting object while Injury No.3 caused by hard and blunt object." He issued the certificate, which is at Ex-46. He found the following injuries on the person of PW-8 Vasant. "(i) Incised wound 2 cm. x 0.5 cm. x 1 cm. muscle deep opening in peritoneum in right hypohondreum 3 cm. above costal margin. : 18 : (ii) Incised wound 2.5 cm. x 0.5 cm. x 1 cm. in right hypochondreum region 3 cm. below costal margin. (iii) Incised wound 1.5 cm. x 0.5 cm. x 1 cm. in left lumber region 5 cm. away from umbilicus." He issued the