1 cr-appeal-336-04-.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 336 of 2004. 1. Shivaji Shrimant Mandale, age 26 years, residing at G.No.2 Malinagar Tal.Malshiras, District Sholapur. 2. Ramchandra @ Dada Sukhadev Jadhav, age 33 years, resident of Mhalung, Tal. Malshiras. 3. Pandurang Sukhdev Jadhav, age 22 years, Residing at Pirachi Kuroli, Tal. Pandharpur. All at present in Yeroda Central Prison,Pune. .. APPELLANTS/ORI. ACCUSED NOS. 1 TO 3. Versus. The State of Maharashtra .. RESPONDENT. Mr P.R. Arjunwadkar, Advocate for the Appellants. Mrs A. S. Pai, Additional Public Prosecutor for the State. 2 cr-appeal-336-04-.doc CORAM : D.D. SINHA & A.R. JOSHI, JJ. RESERVED FOR JUDGMENT ON :- 28th June, 2011. DATE OF PRONOUNCING JUDGMENT:- 3rd August,2011. JUDGMENT (Per A.R.Joshi,J) 1. Present appellants original accused Nos. 1 to 3 preferred the present appeal challenging the judgment and order of conviction dated 28th October, 2003 passed by 4th Additional Sessions Judge, Pandharpur, District Sholapur. By the impugned judgment and order passed in Sessions case No. 97 of 2002 the appellants – accused Nos. 1 to 3 were convicted for the offence punishable under Sections 302, 307, 323, read with section 34 of I.P.C. In the serious offence of 302 of I.P.C. each appellant – accused was sentenced to suffer life imprisonment and to pay fine of Rs.500/- each, in default to suffer rigorous imprisonment (R.I.) for one month each. For the offence under Section 307 of I.P.C. each appellant accused was sentenced to suffer R.I.for seven years each and to pay fine of Rs.1000/- each, in default further R.I. for two months each, for the offence under Section 323 of I.P.C. each appellant accused was sentenced to pay fine of Rs.500/- each, in default to suffer S.I.for 15 days each. Substantive 3 cr-appeal-336-04-.doc sentences were directed to run concurrently. Set off was given to all the accused for the period they were in custody. Admittedly, since arrest till today, the appellants accused are in custody. 2. In order to appreciate the rival arguments, the case of the prosecution can be narrated as under:- 3. One Smt. Manisha (PW 5) and one Uttam Jadhav (since deceased victim) were residing together as husband and wife along with minor girl by name Ashwini, daughter of Smt. Manisha from her earlier marriage. They were staying together at Pirachi Kuroli, Taluka Pandharpur, since about six months prior to the fateful incident which occurred on 17th July, 2002. 4. Smt Manisha and Uttam were staying as husband and wife, she was earlier married to one Rama Fadtare and had two sons and three daughters including the daughter Ku.Ashwini. Said Rama was addicted to drinking liquor and smoking Ganja and was habitually beating Smt Manisha and as such she had left him and initially went to her parents place at Patkal. Smt Manisha was staying with Rama along with their children initially at village Marwade and thereafter at village Pulunj, Taluka Pandharpur. At Pulunj, for the first 4 cr-appeal-336-04-.doc time, Smt Manisha came in contact with deceased Uttam Jadhav, and it developed into the relationship and they started staying as husband and wife. 5. Said Uttam Jadhav was earlier married with one Mangal and had three children out of said wedlock. However, due to family dispute, said Mangal was not cohabiting with him and she had left her matrimonial home and went to her brother Shivaji Mandale at Akluj. Said Shivaji Mandale is present appellant – accused No.1. As such though Uttam Jadhav and Smt. Manisha were earlier married with their respective spouses, they came together and started staying as husband and wife at Pirachi Kuroli along with daughter Ashwini, who was then about 9-10 years of age. 6. On the fateful day i.e. 17th July, 2002, in the afternoon, Ku.Ashwini had gone for grazing she-buffalo in the field. At about 4:00 p.m. she came back with buffalo and told her mother that accused Nos. 2 and 3 and one Khandu had abused and threatened her on account of allowing she-buffalo to graze in their agriculture field. On such complaint made by Ashwini, Manisha and Uttam went to the residence of Khandu Jadhav and the accused persons were accosted by Uttam 5 cr-appeal-336-04-.doc regarding the abuse and threat given to Ashwini. That time there was a sort of altercation and Uttam was threatened by the accused Nos. 2, 3 and their associate one Khandu of dire consequences, including the threat of amputing his hands and legs. According to Smt. Manisha, one Sugriv Sonvale and Vikas Sonvale intercepted and pacified the situation. 7. After the said incident, on the same night i.e. on 17th July, 2002, deceased Uttam PW-5 Manisha and PW-6 Ashwini were sitting in the court yard of their house after taking meals. That time, the appellants – all the three accused, came to the spot and started abusing deceased Uttam. They started the quarrel, alleging that why deceased Uttam had contracted second marriage with Smt Manisha and why he had abandoned his wife Mangal. Another cause for said quarrel was the incident of buffalo grazing in the field of accused Nos. 2 and 3. During the incident there was assault on Uttam and also on PW-5, Manisha. An iron rod, sticks and axe were used as weapons of assault by the appellants- accused and also one co-accused Khandu. Said Khandu was then minor, who was tried separately by the Juvenile Court. Whereas, the present appellants were separately tried. Due to the assault, Uttam and Smt.Manisha received severe bleeding 6 cr-appeal-336-04-.doc injuries on their limbs and other parts of the body, including head. Minor girl – Ashwini was also assaulted. After the assault, the appellants – accused ran away from the spot. According to PW-5 Sugriv Sonavale and Vikas Sonavale had witnessed the incident and they tried to rescue Uttam and Smt Manisha from the appellants. One Pandurang Jadhav (cousin brother of Uttam) arrived on the spot along with the police and injured were removed to Cottage Hospital, Pandharpur for immediate medical help. 8. On the relevant night, there was a police Bandobast due to the procession of Tukaram Maharaj Palkhi. As such, police personnel for the said Bandobast arrived on the spot and after receiving the intimation that the injured were lying at the spot due to the assault, A.P.I. Galande informed P.S.I.Shinde (PW 15) regarding the said injured persons and as such P.S.I. Shinde along with police staff went to the spot. P.S.I. Shinde also went to the spot along with A.P.I.Galande and one Prabhakar Kale (PW-12), a local Talathi of village. On reaching the spot, the police party noticed Uttam and Smt.Manisha lying in severely injured condition in front of their house. They were taken to Pandharpur Cottage Hospital. Enquiry was made with injured Uttam. That time 7 cr-appeal-336-04-.doc Pandurang Jadhav (PW-9) – cousin brother of Uttam, was also present. Uttam disclosed the names of the appellants- accused as his assailants to police persons and said Pandurang Jadhav. Uttam also disclosed the reason for the assault. 9. While under treatment at Cottage Hospital, Pandharpur Smt. Manisha gave her statement at about 2:30 a.m. in which she disclosed the incident as she happened to be the eye- witness and also sustained severe injuries, causing fracture of her limbs. In her statement, she also disclosed cause for which the assault was committed and also disclosed the names of the appellants-accused and the role played by each of them as well as use of respective weapons by them. Statement of Smt Manisha (PW-5) was treated as First Information Report (F.I.R.) and offence was registered as C.R. No.114/2002. Investigation was taken over by P.S.I.Shinde (PW.-15). During investigation, statement of Uttam was recorded which is at Exh.41. Said statement was recorded after ascertaining the condition of Uttam as fit for giving statement and endorsement to that effect was obtained from the attending Dr. Padalkar (PW-14). While under treatment, Uttam died at Cottage Hospital, Pandharpur at 8-15 a.m. on 8 cr-appeal-336-04-.doc 18th July, 2002. Same Dr. Padalkar conducted postmortem on the dead body of deceased Uttam. On the death of Uttam, an offence of 302 of I.P.C. was inserted in the charge-sheet against the appellants-accused. 10. On 18th July, 2002 in the morning spot panchnama was conducted. The spot was shown to the police and panchas by Ku.Ashwini (PW-6). From the spot one stick, samples of soil smeared with blood were taken charge of. 11. During investigation, on the basis of the complaint of PW-5 Smt. Manisha and dying declaration of deceased Uttam, names of the appellants-accused were revealed and initially juvenile offender Khandu and accused No.3 Pandurang Jadhav were accosted at their house and were put under arrest. Thereafter, the present appellants accused Nos. 1 and 2 were arrested from Malinagar area. Clothes of the appellants-accused were taken charge of under the panchnama. Apparently, the clothes were having blood stains. Statements of witnesses were recorded during investigation as the injuries sustained by PW-5 Smt Manisha were grievous, she was removed to Hospital at Sholapur for further medical treatment. Clothes of deceased Uttam were taken under panchnama. 9 cr-appeal-336-04-.doc 12. During investigation on 22nd July, 2002 appellant- accused No.1 made voluntary statement to produce stick and axe. As such memorandum panchnama (Exh.28) was drawn in presence of panch witnesses PW-10 and PW–13. In furtherance of the memorandum, accused No.1 led police party and panchas to his hut and produced one stick and axe. Said articles were taken charge of under the panchnama (Exh. 29). Apparently, said articles were having blood stains. On 22nd July, 2002 all the appellants-accused were sent to the Cottage Hospital, Pandharpur for taking their blood samples. On 25th July, 2002 blood samples of Ku.Ashwini were taken. On 2nd August, 2002 seized muddemal articles and blood samples of the appellant-accused were sent for chemical analysis through police constable Gaikwad (PW-16). 13. On receipt of the reports of Chemical Analyzer and on completion of investigation, charge - sheet was filed against the appellants-accused before the Judicial Magistrate, F.C.Pandharpur. Matter was committed to the Court of Sessions, being Sessions Case No.97 of 2002 and on completion of the evidence of sixteen prosecution witnesses and four defence witnesses, judgment and order was passed which is impugned in the present appeal. 10 cr-appeal-336-04-.doc 14. Before appreciating the rival arguments, certain factual position is required to be narrated :- (i) The incident happened on the night of 17th July, 2002 at the house situated at the agricultural field where the deceased Uttam, Smt. Manisha and Ku. Ashwini were staying. On that night, Uttam and Manisha were found in injured condition lying on the ground and they were removed to Cottage Hospital, Pandharpur by the police party and one Pandurang Jadhav – cousin brother of Uttam. (ii) PW-5 Smt. Manisha gave F.I.R. (Exh.20) giving the details as to the cause for the assault and the names of all the appellants – accused and respective roles attributed to them. Said F.I.R. of PW-5 was recorded at early hours of 2-30 a.m. at Cottage Hospital, Pandharpur by the police. It is almost proximate in time, to the incident of assault which took place at about 9-30 p.m. on the night of 17th July, 2002. (iii) As per the medical evidence, admittedly, the first informant Smt. Manisha had sustained the 11 cr-appeal-336-04-.doc following injuries when she was examined at Cottage Hospital, Pandharpur. Said injuries are as follows :- ---- (i) CLW 5x 5x5 cms on left hand in groove between thumb and index finger. (ii) Deg lowing injury 8x4x5 cms on left forearm middle. (iii) CLW 1 x .5 x bone deep with underlying fracture middle left leg. (iv) CLW .5 x .5 x bone deep right leg, middle 1/3rd. ____ Same Dr Padalkar examined Ku.Ashwini and found the following injuries :-- (i) Contusion 4 x 2 cms on left arm, lower 1/3rd, simple in nature, caused by hard and blunt object, within 24 hours. (ii) Contusion 3x2 cms on right shoulder, simple in nature, caused by hard and blunt object, within 24 hours. Same Dr Padalkar examined then injured Uttam and noticed the following injuries :- (i) CLW 4x0.5xbone deep, left frontal. (ii) CLW .3x.3 cms x bone deep, left arm middle 1/3rd with swelling and fracture of left humerus. 12 cr-appeal-336-04-.doc (iii) CLW 2x .2x.4 cms, left forearm middle 1/3rd. (iv) CLW 2x.5x.5 cms on palm, between left little and ring finger. (v) 3 CLWs each .5x.3xbone deep 2.5 cms or from each other. Right leg lower 2/3 with underlying fracture. (vi) CLW 1x.5x.5 cms left leg. (vii) Contusion with swelling 4x2 cms, left leg lower 1/3rd with underlying fracture of fibula. (viii) contusion with swelling 3x2 cms right leg. (ix) contusion 3x2 cms left inframammary region in anterior axillary line. ____ (iv) During the trial, total sixteen prosecution witnesses were examined. Out of them PW-2 and 3 are the panch witnesses for the scene of offence, they did not support the prosecution case and had turned hostile. (v) PWs 7 and 8 alleged eye-witnesses, according to the case of the prosecution, did not support the prosecution case and turned hostile, they only saw injured Uttam and Smt.Manisha in severely injured condition on that night, however, did not notice any assault much less the presence of the appellants-accused. (vi) PW-12, a local Talathi, did not support the case of the 13 cr-appeal-336-04-.doc prosecution and turned hostile, he denied having heard the statement made by the injured Uttam, taking the names of his assailants as the appellants-accused. He deposed only to the effect that Uttam stating that he was assaulted by two to three persons. Said witness further deposed that he was sitting in the jeep when Uttam was disclosing the facts to P.S.I.Shinde, PW-15 and that time he did not pay attention as to whose names were disclosed by Uttam. (vii) PW-10 and PW-13 are both panch witnesses examined on the alleged memorandum of disclosure statement of accused No.1 and subsequent production of stick and axe. (viii) As injuries caused to PW-5 Smt Manisha were grievous, she was taken to Civil Hospital, Sholapur and was attended by Dr Avinash Ghorpade (PW-1). He noticed certain injuries and some x-rays were taken and found fracture of shaft of right tibia and fracture of neck fibula and also fracture of lateral condyle of left femur. He also deposed as to fracture of superior ramus right side as he took x-rays of pelvis and both the hips of Smt. Manisha. He also noticed the fracture of second metacarpal of left hand. According to said witness, total seven x-rays were taken and Smt. 14 cr-appeal-336-04-.doc Manisha was admitted in orthopedic ward from 18th July,2002 to 8th August, 2002 and had undergone operations under the supervision of Dr Yadav from Orthopedic Department. (ix) Four defence witnesses were examined on behalf of the appellants-accused. D.W.1 is a Police Head Constable Chandrakant Wadkar who was attached to Civil Hospital, Sholapur and was on duty on 18th July, 2002. His evidence is to the effect that PW No.5 injured Smt. Manisha gave names of different persons than the accused as the assailants and also gave the history of assault by means of sword and that she had given a statement to Executive Magistrate one Afzalpurkar (DW 3). DW 2 is Shrikrishna Patki, a Police Constable, an outward clerk. He deposed that dying declaration of PW-5 Manisha was received on 27th July,2002 and made entry to that effect in the inward register and handed over said statement to PSI Shinde PW-15. DW 3 is Special Executive Magistrate, Shri Ashok Afzalpurkar who deposed about the recording of dying declaration on 18th July, 2002 at about 3:45 p.m.to 4:00 p.m. after attending civil hospital at Sholapur. He further deposed about the recording the statement of PW-5 Manisha after ascertaining her condition through the Medical Officer one Dr Abhimanyu 15 cr-appeal-336-04-.doc Khare. He identified said statement cum dying declaration of PW-5 as Exh.82 wherein she had given a different story than that mentioned in the F.I.R. DW-4 is Dr Abhimanyu Khare who deposed about giving his endorsement on the statement Exh. 82 recorded by the Special Executive Magistrate, after examining the patient (PW-5) Smt Manisha. 15. During the arguments, learned Advocate for the appellants – accused raised the following points :- (i) Dying declaration of deceased Uttam which is at Exh.41 does not mention axe as a weapon of assault. However, in the substantive evidence of PW-5 and in her F.I.R. axe is mentioned as one of the weapons of assault. (ii) There is variance in the statement of PW-5 vis-a-vis contents of F.I.R. (Exh.20) and her another statement recorded by Special Executive Magistrate (Exh.82). In the F.I.R. she takes the name of the appellants-accused and gave the story regarding the motive as deceased Uttam was ill-treating his wife Mangal and secondly the incident of grazing of she buffalo in the field of the appellant on the afternoon of the day of the 16 cr-appeal-336-04-.doc incident. As against this, in her statement (Exh. 82) recorded by the Special Executive Magistrate, she mentioned the names of different persons i.e. one Gunda Jadhav (her father-in-law), one Sattu Jadhav and one more person. She further gave different motive i.e. the quarrel on account of the marking stones up-routed by Uttam and herself from the agricultural field of their family. In the statement (Exh.82) she allegedly mentioned that weapon of assault was a sword. (iii) The statement of Pandurang Jadhav, cousin brother of deceased Uttam was recorded after eight days and said PW-9 is interested witness being close relative of the deceased and on both these counts his evidence is not trustworthy. (iv) Accused Nos. 2 and 3 had no relation with accused No.1 and the story of the prosecution that all the appellants-accused came together with common intention to assault Uttam and Manisha, is unacceptable and does not stand to reasons and logic. Whether appellant-accused No.1 had such an animosity with the deceased and his wife so as 17 cr-appeal-336-04-.doc to kill the deceased Uttam and severely injure Smt Manisha? As such on this count also the involvement of appellant-accused No.1 is doubtful. (v) The alleged incident of abuse was at about 4:00 p.m.on account of the quarrel of grazing of the buffalo in the field of the accused. Whereas, the assault occurred after 9-00 p.m.on the same night and as such the evidence regarding motive is doubtful to implicate the appellants-accused. (vi) F.I.R.was allegedly lodged at 2:30 a.m. by PW-5, whereas the assault was at 9:00 p.m. on the earlier night. Hence, there is delay of about five and half hours and thus raises a doubt as to authenticity of the case of the prosecution. (vii) There is mention of punctured wound in the substantive evidence of PW-1 Dr Ghorpade who was then working at Civil Hospital, Sholapur and according to him, the history given by the patient i.e.PW-5 Manisha was that assault with sword. As against this, there was no evidence of any witness regarding use of sharp and pointed weapon so as to cause a punctured wound. These facts rendered 18 cr-appeal-336-04-.doc the case of the prosecution doubtful. 16. All the above referred points raised by the defence have been carefully gone through and the substantive evidence of respective prosecution witnesses has been examined. So far as first defence is concerned, though there is no mention of axe in the dying declaration of deceased Uttam (Exh.41), this aspect in itself cannot be considered as a mitigating circumstance to the case of the prosecution when the substantive evidence of PW-5 mention the weapon of assault as axe and when various injuries as described above were found on the person of deceased Uttam and injured PW-5 Smt.Manisha. 17. So far as second point is concerned, it must be mentioned that PW-5 has categorically denied having given any statement to the Special Executive Magistrate. Moreover, there was no necessity for the investigating agency to again record further statement of PW-5, at about 3:45 p.m. in the Civil Hospital, Sholapur on 18th July, 2002, when in the Cottage Hospital at Pandharpur at the early hours of the same day at 2:30 a.m. her initial statement was recorded giving all the details including the names of the appellants – accused 19 cr-appeal-336-04-.doc and the role played by them in the assault. This aspect has been dealt with by the trial Court and rightly so, in our view, rejecting the defence of the accused persons. On this aspect, we have gone through the substantive evidence of PW-5 Smt Manisha, who was examined and cross-examined during the trial on 12th March, 2003 and thereafter further cross- examination was continued on 7th April,2003. However, it is curious enough to note that subsequently an application was preferred before the Sessions Court for recalling said witness for her further cross-examination. This further cross- examination taken on 22nd July, 2003 was only in aspect of alleged recording of the statement at Civil Hospital, Sholapur which is at Exh.82. Factum of said recording of the further statement has been categorically denied by PW-5. This aspect has been dealt with by the Sessions Court, doubting the genuineness of said second dying declaration (Exh.82). In fact, a doubt has been raised by the Sessions Court on the conduct of the Investigating Officer regarding production of such second statement before the Court much belatedly. 18. On the above aspects, on going through the record and proceedings of the matter, it is revealed that initially when the documents were produced before the Sessions 20 cr-appeal-336-04-.doc Court by the prosecution at the threshold of the trial, there was no mention as to availability or otherwise of the statement Exh.82. Surprisingly, an application dated 14.7.2003 being Exh.75 was preferred before the Sessions Court, however, by that time the evidence of PW-5 was already over and concluded on 7th April, 2003. The application dated 14th July,2003 was preferred on behalf of the appellant- accused mentioning that there is some statement of PW-5 recorded by Special Executive Magistrate at Civil Hospital, Sholapur and same has not been brought before the Court by the prosecution. Said application was placed for the Say of the prosecution and the learned A.P.P. on the same day gave his one line say as “proper orders be passed”. Said application was allowed on the same day by the learned Sessions Court and directions were given to Investigating Officer (PW-15) Mr Shinde to produce said statement recorded at Civil Hospital, Sholapur. Consequently, said statement was produced by the Investigating Officer and thereafter on 16th July, 2003 another application was preferred by the accused persons asking the consent of the prosecution whether the said statement is to be read in evidence. Said application was preferred on behalf of the 21 cr-appeal-336-04-.doc accused vide Exh.76. Said prayer of the accused was objected by the learned A.P.P. In fact, said alleged statement was not admitted by the prosecution to be read in evidence. Under these circumstances, an application was made before the Sessions Court recalling PW-5 and asking her certain questions on such alleged statement recorded at Civil Hospital, Sholapur. Said application was allowed by the Sessions Court and it is Exh.79. It was allowed on 18th July, 2003. As such, subsequently, on 22nd July, 2003 PW-5 was recalled and her further cross-examination was taken only on the aspect of recording of her statement at Civil Hospital, Sholapur. Apparently, all these circumstances were scrutinized by the Sessions Court in proper perspective and no reliance was placed on said alleged statement Exh.82 and even the defence evidence of DW Nos. 3 and 4 was also not accepted by the trial Court and it was rightly so, considering the above circumstances. 19. So far as third point raised on behalf of the appellants- accused is concerned, only because of PW-9 Pandurang Jadhav, being cousin brother of deceased Uttam, this fact in itself cannot be construed to discard his testimony when otherwise same is acceptable considering the circumstances 22 cr-appeal-336-04-.doc in totality. So far as