1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.125 OF 2005 1. Bapusaheb Bhaguji Hande, Age : 59 years, 2. Chandrakant Bapusaheb Hande, Age : 27 years, Both r/o Javale Kadlag, Tq. Sangamner, Dist. Ahmednagar ..APPELLANTS VERSUS The State of Maharashtra ..RESPONDENT Mr S.T. Shelke, Advocate for the appellants; Mr S.D. Kaldate, A.P.P. for the respondent WITH CRIMINAL APPEAL NO.245 OF 2005 The State of Maharashtra, (through P.S.O. Sangamner P.S. Dist. Ahmednagar) ..APPELLANT (Ori. Complainant) VERSUS 1. Bapusaheb Bhaguji Hande, Age : 55 yrs., 2 2. Chandrakant Bapusaheb Hande, Age : 22 yrs., 3. Daulat Murlidhar Deshmukh, Age : 40 yrs., 4. Navnath Murlidhar Deshmukh, Age : 27 yrs., 5. Balu Murlidhar Deshmukh, Age : 27 yrs., 6. Bhausaheb Bapusaheb Hande, Age : 19 yrs., Accused No.1 to 3 and 6 R/o Javale Kadlag, Tq. Sangamner, Dist. Ahmednagar and accused no.4 and 5 R/o near B.Ed. College, Sangamer Dist. Ahmednagar ..RESPONDENTS (Ori. Accused) Mr S.D. Kaldate, A.P.P. for the appellant; Mr S.T. Shelke, Advocate for respondents no.1 & 2; Respondents no.3 to 6 served WITH CRIMINAL APPEAL NO.246 OF 2005 The State of Maharashtra (through P.S.O. Sangamner P.S. Dist. Ahmednagar ..APPELLANT VERSUS 1. Bapusaheb Bhaguji Hande, Age : 55 yrs., 2. Chandrakant Bapusaheb Hande, Age : 22 yrs., R/o Javale Kadlag, Tq. Sangamner, Dist. Ahmednagar ..RESPONDENTS (Ori. Accused) 3 Mr S.D. Kaldate, A.P.P. for the appellant; Mr S.T. Shelke, Advocate for respondents no.1 & 2. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 4th January, 2010 ORAL JUDGMENT (PER P. V. HARDAS, J.) All these appeals are being heard together and are being decided by this common judgment. 2. The appellants as well as the respondents were charged for an offence punishable under sections 143, 149, 302 read with section 149 and 506 read with section 149 of the Indian Penal Code. 3. The case of the prosecution against the accused was that on 5.5.2001 at about 5.30 p.m. at village Javale Kadlag, Taluka Sangamner, all the accused formed an unlawful assembly with a common object to commit murder of Trimbak Vithoba Kadlag and Shakuntala Subhash Kadlag and in prosecution of the common object, accused no.2 Chandrakant poured kerosene from the tin on the person of Trimbak and set him ablaze by a burning torch. Trimbak sustained 54% burn injuries and he succumbed to those injuries at the Jyoti Hospital, Nashik on 4 17.5.2001. The prosecution further alleged that accused no.1 Bapusaheb and accused no.6 Bhausaheb s/o Bapusaheb, in prosecution of the common object of the unlawful assembly caused hurt to Shakuntala Subhash Kadlag by a knife and committed her murder by inflicting injuries by knife. Prosecution also alleged that the accused, in furtherance of the common object, threatened the complainant and the witnesses. 4 Prosecution has examined P.W.4 Hirabai who stated that she was residing at Javale Kadlag where the incident took place. She further states that accused Bapusaheb was residing near their old house at village Javale Kadlag and had erected a hut on the land. However, accused no.1 Bapusaheb thereafter constructed a new house and had dug foundation and her brother-in-law Subhash and Trimbak had objected to the said construction. Accused no.1 Bapusaheb, however, constructed the foundation during night. She has further stated that despite their objection, accused no.1 Bapusaheb brought material for erecting the house and accused no.1 Bapusaheb was backed by accused nos. 2 to 5. She further states that her brother-in-law Subhash had instituted a civil suit against accused no.1 but that did not deter accused no.1 from carrying out the construction. Her brother-in-law Subhash had also lodged a report with the police and had also lodged a private complaint. She states that on 5.5.2001 her brother-in-law Subhash and deceased Trimbak had left the village at about 10.00 a.m. 5 for attending the civil suit. After their departure she learnt that accused Bapusaheb had brought tin sheets and iron angles at the site and she along with wife of Subhash i.e. deceased Shakuntalabai and wife of Trimbak went to the site at about 1.00 p.m. The sons of accused no.1, accused no.2 and accused no.6 were present at the site. Accused no.1 had also gone to Sangamner for attending the civil matter and at about 5.00 p.m. accused no.1 Bapusaheb came to the site and thereafter accused nos.3 to 5 also came there. She states that at about 5.30 p.m. her brother-in-law and deceased Trimbak came at the site and at that time accused no.2 came there and was possessing a tin containing kerosene and a burning torch. Accused no.2 threw the kerosene on the person of Trimbak and set him ablaze. Shakuntalabai rushed to extinguish the flames and at that time accused no.1 and accused no.6 obstructed her and stabbed her on her stomach and chest with the knives which were in their hands. She further stated that accused nos.3 to 5 did not allow her and others to rescue Shakuntalabai. She states that at that time Satish and Sindhubai were present there and accused nos.3 to 5 had threatened them. She states that Sudhakar Kadlag arrived at the scene on hearing the cries. Shakuntalabai was brought to the hospital as she was unconscious and deceased Trimbak was also taken to the Cottage Hospital. Shakuntalabai was declared dead in the hospital and Trimbak was shifted for further treatment at Nashik. She states that she had accordingly lodged her first information report at Exh. 61. 6 5 In cross-examination she has admitted that her family had shifted at her farm house and no one was residing at their old house and the old house was in a dilapidated condition. She has admitted that the hut of accused no.1 was adjacent to the road and there was open space around the said hut. She has also admitted that there were houses of 8 to 10 persons near the disputed site. She has admitted that the shop and house of P.W. Sudhakar Kadlag is adjacent to the disputed site. She has admitted that accused no.1 had lodged a complaint against deceased Trimbak and others for causing obstruction to their construction. She has admitted that accused Bapusaheb as assaulted in the hospital but could not see who had assaulted him. 6 P.W.5 Subhash Kadlag states that accused Bapusaheb had started residing near their old house at Javale Kadlag 4 to 5 years prior to the incident and about 7 to 8 months prior to the incident, the accused had started construction of his new house on their land. He had stated that the accused had prepared the foundation and despite the obstruction accused no.1 carried out the construction. He further states that accused no.1 was backed by accused nos.3 to 5. He has also admitted about institution of a civil suit against accused no.1 Bapusaheb. He further states that after the institution of the civil suit accused Bapusaheb had carried out the construction. He states about lodging of the complaint against the accused. He states that on the day of the 7 incident he, Trimbak and his sons had gone for attending the civil suit and had returned to the village at 5.30 p.m. When they reached near the old house, accused Chandrakant came with a tin containing kerosene and one burning torch and he threw the kerosene on Trimbak and set him ablaze. P.W.4, deceased Shakuntalabai and Sindhubai were present at the scene and Shakuntalabai was stabbed by accused Bapusaheb and accused no.6 Bapusaheb on her chest and stomach. He states that thereafter both of them succumbed to their injuries in the hospital. 7 In cross-examination he states that the application for temporary injunction was dismissed by the Civil Judge as well as the Miscellaneous Appeal which was filed before the District Judge. He has admitted about institution of a criminal case against Trimbak. 8 P.W.8 Satish Kadlag also states about the construction carried out by accused no.1 Bapusaheb and states that he along with others had gone for attending the civil suit and had returned to Javale Kadlag at about 5.15 p.m. He states that his mother Sindhubai, P.W.4 and deceased Shakuntalabai were sitting near their old house. At that time accused no.2 came there with a burning torch and a container containing kerosene and threw the kerosene on his father Trimbak and set him ablaze. He states that when Shakuntalabai rushed to extinguish the flames she was stabbed by accused no.1 and accused no.6. He then 8 states about both the injured succumbing to their injuries. 9 In cross-examination he has admitted about institution of a criminal case against Trimbak. 10 P.W.6 Sudhakar Kadlag who was running a fertilizer shop at village Javale Kadlag states about the construction carried out by accused no.1 and about accused no.1 carrying out the construction despite the objections. He also states about institution of a civil suit against accused no.1. He states that on the day of the incident he was in the shop and at about 5.00 p.m. accused no.1 had gone towards his house and thereafter he had seen Subhash, deceased Trimbak and Satish passing by his shop and going towards their house. After about ten minutes he heard the shouts of the ladies and claims to have seen accused no.1 and accused no.6 stabbing Shakuntalabai by knives. He states that Trimbak had sustained burn injuries and Chandrakant was standing with a burning torch and a plastic container containing kerosene. He claims that accused nos.3 to 5 were instigating the other accused to assault the deceased. Towards Court question he has admitted that 2 to 3 days after the incident when the police had come for drawing the panchnama he had disclosed about the incident. 11 P.W.10 Dr. Kacheriya, who had examined Shakuntalabai states that Shakuntalabai had the following injuries :- 9 1) Stab wound over right chest medially at parasternal region at 6/7th right rib level. Bone deep injury. Signs of bleeding positive, edges everted. Size 6 cm x 3 cm x 4-1/2 cm with fracture right ribs. 2) Two attempted stab injuries over left chest at left mid axillary region (i) upper wound below breast, size 6 cm. x 3 cm. x 3 cm. (ii) Lower wound below level of first wound 4 x 3 x 3 cm. Both these wounds communicating each other; wound going obliquely. 3) CLW over left palm at thumb base, 3 x 1/2 cm. Dark red (Defencing Wound). P.W.10 Dr. Kacheriya opined that there was fracture to the 6th, 7th and 8th ribs with puncture of the right lung. According to the medical evidence cause of death of Shakuntalabai was haemorrhagic shock due to stab injuries over chest, causing injury to vital organs i.e. lung and heart. 12 P.W.10 Dr. Kadlag states about examining Trimbak and giving him first aid. Trimbak had sustained 54% burn injuries and thereafter Trimbak was shifted to the Medical Centre at Nashik where he succumbed on 17.5.2001. P.W.12 Dr. Deepak Sonawani who had treated Trimbak at Nashik states that the statements of deceased Trimbak were recorded by 10 the police on two occasions. According to him, cause of death was due to septicemic shock due to superficial to deep burns. The post mortem report of Trimbak is at Exh.70. 13 The accused had examined D.W.1 Sachin Shirke, who was working as a Junior Clerk in the Court of Civil Judge at Sangamner. D.W. 1 Sachin produced the record & proceedings of Regular Criminal Case No.129 of 2000, which was filed by accused no.1 Bapusaheb before the Magistrate. As per the record & proceedings all the accused including Trimbak and P.W.3 Sunil had appeared before the Criminal Court through their Advocate. 14 The Trial Court at paragraph 39 while scrutinizing the evidence of the prosecution witnesses came to the conclusion that the contention of the prosecution witnesses that they had come to attend the Court on the day of the incident in respect of the civil suit was incorrect. The Trial Court further observed that there was no evidence in respect of the civil suit being fixed on the day of the incident. The Trial Court further found that though the prosecution witnesses claimed that a complaint was lodged against the accused regarding the previous incident and copy of the complaint had not been tendered in evidence. In the light of the institution of the criminal case by accused no.1, the Trial Court concluded that the prosecution witnesses had assaulted the accused on 31.7.2000 due to which he had lodged Criminal Case No.131 of 2000, which was 11 fixed on 8.5.2001. The Trial Court further concluded that though the prosecution witnesses had no right to the land where the accused was constructing, yet were obstructing the construction of the accused. In respect of the dying declaration of deceased Trimbak which was recorded in the hospital at Nashik on 15.5.2001, the Trial Court found that the evidence of P.W.11 P.S.I. Shinde in respect of the recording of the dying declaration was far from satisfactory as it was not recorded by P.S.I. Shinde but by one Constable Raju Gaikwad. Accused had examined P.W.2 Police Constable Rajesh Gaikwad who claimed to have recorded the statement of Trimbak. He asserted that the dying declaration at Exh. 126 was not in the handwriting of P.S.I. Shinde, while P.S.I. Shinde claimed that it was in his own handwriting. The Trial Court, therefore, found that no reliance at all could be placed upon the said dying declaration. In respect of the earlier dying declaration at Exh.149, the Trial Court found that there was no corroboration whatsoever between the recitals in the dying declaration at Exh.149 and the evidence of the prosecution witnesses. In the dying declaration at Exh.149 accused nos.3 to 6 were not implicated at all and, therefore, chose not to place any reliance on the same. The Trial Court, therefore, came to the conclusion that there was no evidence whatsoever in respect of the involvement of the other accused and it could not be said that the accused had formed an unlawful assembly and in prosecution of the common object had committed the crime. The Trial Court, therefore, convicted accused no.1 and accused no.2 for offence punishable under section 304 of the Indian 12 penal Code and sentenced them to R.I. for five years and to pay a fine of Rs.5,000/- each and acquitted the other accused. 15 We have heard learned Counsel for the parties with whose assistance we have perused the findings recorded by the Trial Court. The State has filed two appeals questioning the acquittal of convicted accused for offence punishable under section 302 of the Indian Penal Code as well as the acquittal of the other accused. We have discussed at length the findings recorded by the Trial Court and we find that no interference in any of the appeals is required. Hence all the appeals are dismissed. Sd/- Sd/- ( SHRIHARI P. DAVARE, J.) ( P. V. HARDAS, J.)