1 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.202 OF 2005 WITH CRIMINAL APPEAL NO.304 OF 2005 WITH CRIMINAL APPEAL NO.454 OF 2005 XXXX CRIMINAL APPEAL NO.202 OF 2005 1. Somnath S/o Sopanrao Londhe, APPELLANTS Age-24 years, Occu-Agriculturist and (Appeal Abated) Councilor, R/o. Zarekar Lane, Ahmednagar Tq. And Dist. Ahmednagar (At present in jail.) 2. Subhash S/o Sopanrao Londhe, Age-30 years, Occu-Agriculturist and Councilor, R/o. Zarekar Lane, Ahmednagar Tq. And Dist. Ahmednagar (At present in jail.) VERSUS The State of Maharashtra RESPONDENT ......... Appeal abated against appellant No.1 Mr.R.N.Dhorde, Advocate for appellant No.2 Mr.K.G.Patil, APP for respondent State .......... 2 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 WITH APPEAL NO.304 OF 2005 1. Sambhaji S/o Sopanrao Londhe, APPELLANTS Age-36 years, Occu-Agriculturist, R/o. Zarekar Lane, Ahmednagar Tq. And Dist. Ahmednagar (At present in jail.) 2. Sunil @ Appa Kerappa Ausikar, Age-22 years, Occu-Agriculturist, R/o. Zarekar Lane, Ahmednagar Tq. And Dist. Ahmednagar (At present in jail.) VERSUS The State of Maharashtra RESPONDENT ......... Mr.R.N.Dhorde, Advocate for appellants Mr.K.G.Patil, APP for respondent State .......... WITH APPEAL NO.454 OF 2005 The State of Maharashtra APPELLANT VERSUS 1. Rama Raosaheb Londhe, RESPONDENTS Age-23 years, R/o. Londhe Vasti, Ahmednagar, 2. Shama Raosaheb Londhe, Age-21 years, R/o. Nalegaon, Londhe Mala, Ahmednagar, 3 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 3. Ramesh Namdeo Varude, Age-34 years, R/o.”Bhavanarushi” Shivaji Nagar, Nagar Kalyan Road, Ahmednagar, 4. Laxman Rambhau Sabale, Age-37 years, R/o. Shivajinagar, Nagar Kalyan Road, Ahmednagar, 5. Tushar Laxman Adhav, Age-20 years, R/o. Zarekar Lane, Ahmednagar, 6. Kapil Bhagwan Sudke, Age-20 years, R/o. Sudke Mala, Ahmednagar, 7. Raju Dashrath Rohokale, Age-46 years, R/o. Rohokale Galli, Nalegaon, Ahmednagar 8. Vikram Eknath Bankar, Age-32 years, R/o. Near Remand Home, House No.7533, Ahmednagar ......... Mr.K.G.Patil, APP for appellant State Mr.R.N.Dhorde, Advocate for respondents .......... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 1st March 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. Appellants in Criminal Appeal No.202/2005 and 4 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 304/2005 are convicted for an offence punishable u/s 302 r/w 149 of the Indian Penal Code and are sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/- each, in default, to suffer further RI for one year, they are also convicted for an offence punishable u/s 341 r/w 149 of the Indian Penal Code and are sentenced to suffer RI for one month. Appellant No.1 in Criminal Appeal No.202/2003 is convicted for an offence punishable u/s 353 of the Indian Penal Code and sentenced to suffer RI for six months and Sambhaji appellant in Criminal Appeal No.304/2005 is convicted for an offence punishable u/s 148 of the Indian Penal Code and are sentenced to suffer RI for one year, in Sessions Case No.45/2004 by 5th Ad Hoc Additional Sessions Judge, Ahmednagar vide judgment and order dated 11.03.2005. The respective appellants have challenged their conviction and sentence by preferring Criminal Appeal Nos.202/2005 and 305/2005. 2. By the same judgment, the trial court has acquitted original accused No.4 to 7 and 9 to 12 of all the charges. Acquittal of the said accused is assailed by the State, by preferring Criminal Appeal No.454/2005. 3. All these three appeals arise out of the same judgment and order rendered in Sessions Case No.45/2004 and hence, they are being disposed of by this common judgment. 5 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 4. During the pendency of these appeals, appellant Somnath S/o Sopanrao Londhe expired and hence Criminal Appeal No.202/2005 has been abated, so far as it relates to appellant No.1 Somnath, vide order dated 14.02.2011. 5. For the sake of convenience the appellants in Criminal Appeal No.202/2005 and 304/2005 as well as respondents in the State Appeal will be referred by their original nomenclature in the judgment and order dated 11.03.2005 passed in Sessions Case No. 45/2004. 6. Prosecution case, as unfolded during the trial, is as follows - a) On 15.12.2003 Vasant Bondar (PW-19), API Kotwali Police station, Ahmednagar, had received information from PW-7 Rajendra (injured) that quarrel had taken place near Shivajinagar so also a message was received from Civil Hospital, Ahmednagar that some injured persons were admitted there for treatment. Accordingly, station diary entries No.41 and 42 were made and injured Rajendra (PW-7) was referred to civil hospital, Ahmednagar for treatment. Thereafter PW-19 API Bondar had rushed to the civil hospital, Ahmednagar and recorded statement (Exhibit-160) of injured Balasaheb (PW-1) and registered offence at crime No.307/2003 on the basis of the same. 6 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 b) On the same day, PW-23, Tulsidas Mahajan, PI, Kotwali police station, on receipt of information that fire has broken near Shivaji nagar, had rushed there and till he reached there the fire was extinguished. There he learnt that accused No.3 had been to the police station, thereafter, directed to detain accused No.3 Subhash in the police station and went to civil hospital, where on his directions, PSI Sampat Shinde (PW-11) drew inquest Panchanama (Exhibit-110) on the dead body of Chandrashekhar. Investigation of the said offence was entrusted to him. c) During the investigation accused No.3 Subhash, accused No.2 Somnath, accused No.9 Tushar, accused No.10 Kapil were arrested vide arrest Panchanamas (Exhibit-176 to 179). On 16.12.2003, Spot Panchanama (Exhibit-180) was drawn and thereafter statements of certain witnesses were recorded. Thereafter, accused No.1 Sambhaji, accused No.7 Laxman, accused No.8 Sunil and accused No.11 Raju came to be arrested vide arrest Panchanama (Exhibit-183 to 186). PW-9 Sanjay Sonawane was referred for medical examination along with requisition letter (Exhibit-187). ASI Shaikh Gulab (PW-22) seized the clothes on the person of the deceased under Panchanama (Exhibit-174) PSI Shinde (PW-21) seized the clothes of accused Sambhaji and Sunil under Panchanama (Exhibit-172) 7 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 d) During the further investigation, on 17.12.2003, PW-23 PI Tulsidas Mahajan, recorded statements of some more witnesses. On 17.12.2003 itself, while in custody, accused Sambhaji made a voluntary disclosure statement (Exhibit-188), which lead to the recovery of one base ball bat (Article-9), handle of broken spade (Article-10) and stick of babul tree, which came to be seized under seizure Panchanama (Exhibit-189) from one room in Hotel Dinesh. So also two motor bikes came to be seized, which were behind the said hotel, under the same Panchanama. On the same day, one tempo was seized vide seizure Panchanama (Exhibit-190). Clothes on the person of the injured Balasaheb and Rajendra (Articles 12 and 13) were also seized under Panchanama (Exhibit-191). e) Dr.Pramod Pargaonkar, PW-15, Medical Officer, Civil Hospital, Ahmednagar, conducted Postmortem on the dead body of Chandrashekhar on 16.12.2003. During the postmortem, he noticed the following external injuries on the person of the deceased - 1. Contused lacerated wound on right parital middle region 2 x 1 x 1 cm 2. Abrasion on right side of forehead (1) 3 cm (2) 5 cm X 1 mid on right side of eye brow and both injuries were horizontal b) Abrasion on left shoulder 1. anterioraly 3 cm 2. Middle and lateral 1/3rd clavicle 8 cm x 1 ml both 8 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 verticle. c) Abrasion of right iliac region (1) 4 cm 1 1 ml (2) 3 cm 1 1 ml (3) 2 cm x 1 ml d) Abrasions on chest nipple lateral aspect (1) 2 cm x 2 cm (2) 2 cm X 2 cm Ribs were fractured on both sides. On right side 2nd, 3rd and 4th ribs anterior 1/3rd to 2/3rd region On left side 2nd to 7th ant. Axillary line. On internal examination it was noticed that there was subcutaneous haemotaoma on right parietal region 4 cm, 3cm, 1 cm. There was hair line fracture of ‘v’ shape on the skull on base of right parietal and temporal bone region size arm 3 cm and other 4 cm. Brain shown extra dural haemotoma 6 x 4 x 3 cm. The Medical officer opined that the cause of death was due to hemorrhagic shock due to interacranial hemorrhage due to fracture skull with fracture ribs. Accordingly, Postmortem report (Exhibit-140) was prepared. 9 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 f) On 17.12.2003, Constable Shejul collected injury certificate of PW-7 Rajendra, PW-13 Sachin, PW-1 Balasaheb so also of accused No.1 Sambhaji and accused No.8 Sunil (Exhibit-142 to 147). PW-23, PI Mahajan thereafter recorded statements of some more witnesses and accused No.5 Shama, accused No.4 Rama, accused No.12 Vikram came to be arrested vide arrest Panchanama (Exhibit-193 to 195). Police constable Shejul also collected post mortem notes in respect of postmortem examination conducted on the dead body of Chandrashekhar. g) On 18.12.2003, PW-23 PI Mahajan recorded statements of 7 more witnesses and accused No.2 Somnath made voluntary disclosure statement (Exhibit-196), which lead to the recovery of 2 razors and one sword (Articles 15 to 17) from the sugar cane crop, behind hotel Dinesh. The said weapons were seized under recovery Panchanama (Exhibit-197). On 23.12.2003, one motor bike was produced by accused No.4 Rama, which came to be seized under Panchanama (Exhibit-198). On 25.12.2003, accused No.3 Subhash made further voluntary disclosure statement (Exhibit-199), which lead to the recovery of two motor bikes kept in a shed near his house, which were seized under recovery Panchanama (Exhibti0-200). On 26.12.2003, accused No.6 Ramesh came to be arrested under arrest Panchanama (Exhibit-201) and on 28.12.2003 he made a voluntary disclosure statement (Exhibit-202), which lead to the recovery of 3 wooden logs (Article 18/1 to 18/3), which were seized under recovery 10 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 Panchanama (Exhibit-203). During the further investigation, on 31.12.2003, on issuance of a letter of request (Exhibit-204), PW-17 Datta Lokhande, prepared sketch maps of the scene of offence (Exhibit-150 and 151). On 06.01.2004, the accused and the injured were referred to medical officer for collecting their blood samples. On 07.01.2004, all the blood samples were forwarded to the CA through police constable. Thereafter, on completion of the investigation, charge sheet was filed against all the accused on 11.03.2004 before the 5th JMFC, Ahmednagar. h) On committal of the case to the court of sessions, 5th Ad Hoc Additional District Judge, Ahmednagar framed charge (Exhibit-14) against all the accused for the offence punishable u/s 143, 147, 148, 149, 302 r/w 149, 307 r/w 149, 436 r/w 149, 341 r/w 149, 353 r/w 149, 332 r/w 149, 324 r/w 149, 323 r/w 149, 504 r/w 149, 506 r/w 149 of the Indian Penal Code and u/s 135 of the Bombay Police Act and u/s 4 (25) of the Indian Arms Act. The accused abjured their guilt and claimed to be tried. Prosecution, to substantiate the charges leveled against the accused, had examined in all 23 witnesses before the trial court. However, out of these witnesses, 7 eye witnesses and 5 Panch witnesses turned hostile and only PW-9 Sanjay Sonawane supported the case of the prosecution. The trial court, relying on the sole testimony of PW-9 Sonawane, coupled with the other circumstantial evidence convicted the accused whereas acquitted the other accused. 11 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 7. As conviction of the appellants is based on the sole testimony / direct evidence of PW-9 Sanjay Sonawane and other circumstantial evidence, it may be useful to advert to the evidence of PW-9 Sanjay Sonawane and other police witnesses. 8. It is in the evidence of PW-9 Sanjay Sonawane, that since 10.12.2003 he was appointed as a bodyguard of Chandrashekhar (deceased), who was contesting election of the Municipal Corporation. He was provided with carbine machine gun with 35 bullets. On 14.12.2003, polling for the said election was over. On 15.12.2003, at about 2.00 p.m. he had been to his house for lunch on the motorcycle of Chandrashekhar (deceased). At about 4.00 p.m. while he was returning to the house of Chandrashekhar (deceased), on his way he saw PW-13 Sachin and PW-1 Balasaheb in marshal jeep of the deceased, who informed him that some quarrel had taken place at the election office of the deceased. While he reached at the election office, he saw that deceased was present near his office and the office had caught fire and the fire brigade was extinguishing the same. He saw accused Sambhaji and Somnath with their associates were running from the spot on their motorcycles. At that time Chandrashekhar (deceased) had told him that accused Sambhaji and Somnath with their associates were chasing their jeep and hence, they should report to police. Thereafter he and Chandrashekhar (deceased) were proceeding to the police station on the motor cycle, 12 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 however the same was stopped before the bridge on Seena river by a mob of 30 to 35 persons. Thereafter accused No.2 Somnath pulled him from the motorcycle and snatched his gun and threw it. Thereafter accused Somnath twisted his hands from behind and had caught him at that time 5/6 persons had assaulted him with kick from backside. Accused Sambhaji and Sunil gave blows of wooden log on the head of Chandrashekhar (deceased) and Chandrashekhar had felled down. Again accused Sambhaji gave blows of wooden log on his ribs / chest. Others gave kick blows to Chandrashekhar and thereafter accused Sambhaji and accused Sunil lifted Chandrashekhar and threw him in the nearby pit. Accused Somnath and their associates pushed him and ran away. He was threatened by accused Somnath that if he take any action against them then he would face the same consequences like that of Chandrashekhar. Before he reached near his gun all the assailants had ran away from the spot. Thereafter he reached near Chandrashekhar and saw that he was injured and was unconscious. Then he went to the house of Chandrashekhar and informed about the incident to the family members of Chandrashekhar. In the meantime, a mobile van had already came near the house of Chandrashekhar and hence he took the said van to the spot where Chandrashekhar was lying. Four constables, including PW-14 Sanjay Berad were in the said van. Chandrashekhar was brought to civil hospital where on examination he was declared to be dead. Thereafter, for about 1 and ½ hour he remained in the civil hospital and then went to Kotwali police station 13 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 where he remained for about 1 and ½ hour. His statement was recorded in the police station. 9. In the cross examination he has stated that at the time of alleged incident he was not in uniform and during the incident clothes on his person were torn, which were not seized during the investigation. He had further stated that he walked from the spot to the house of the deceased, to inform about the incident to the family members of the deceased. He has admitted that Kotwali police station is at the distance of about 1 and ½ km from the spot. The bridge is situated on Nagar Kalyan high way. He has admitted that since he was appointed as a bodyguard till 14.12.2003, he had not contacted with Londhe family nor has he in relationship with the Londhe family. He has further stated that the incident of office burning took place in a thickly crowded locality surrounded by shops and residential premises. He has also stated that he remained at the spot for about 10 minutes and there was facility of PCO/STD as well as private phone, even then he had not used the said facilities to report the incident of burning of the election office to the police station, as according to him, he was confused. He has further stated that the mobile van was having wireless facility. He has admitted that he had not talked with the inmates of the mobile van during his journey to the civil hospital. He has also not lodged complaint in respect of the assault on him. He has also admitted that he had not reported his location to his immediate superior. He has stated in his cross 14 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 examination that the incident of assault on Chandrashekhar took place at the distance of 50 feet from the bridge prior to Nepthi square and rickshaw stand and phone facility was also available there, however he did not avail the same to report the incident to the police or to shift the deceased to hospital by using auto rickshaw. He has also stated that he does not remember the number of the motorcycle used by them and what happened to the said motorcycle when he reached at the spot with the mobile van. He has also stated that no blood was transferred on his clothes while lifting Chandrashekhar from the spot to the hospital. In his further cross examination certain omissions are proved that he had not stated in the statement before police that accused Sambhaji, accused Somnath and their associates were running away from the spot on motorcycle; Chandrashekhar told him that Sambhaji and Somnath with their companion were chasing the marshal jeep and, therefore, they should to go police station; accused Somnath threw his carbine gun; accused Somnath twisted his hands from backside and had caught him; 5/6 persons assaulted him with kicks from back side; Chandrashekhar was beaten on his ribs with wooden logs; accused Sambhaji and Sunil started running after they threw Chandrashekhar in a pit; Somanath and his associates pushed him and started running; till he controlled himself and could take his gun, the assailants had started running; accused Somnath and 5/6 companions, who had caught him, threatened him that if he would react, or take any action, he would face the same fate like that of 15 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 Chandrashekhar; till he could get his gun all the assailants had ran away; he went near Chandrashekhar and noticed that he was injured and was unconscious; he stayed in Tophkhana police station for about 1 and ½ hour and in civil hospital for 1 and ½ hour. 10. It transpired from the evidence PW-14 Sanjay Berad that on 15.12.2003 he was on duty on the mobile van and at about 4.45 p.m. a message was received that some quarrel had taken place at Shivaji nagar and they should proceed there. They went to Shivaji nagar via Nepti Naka-Amardham road. After they crossed house of Shinde, they were informed that house of Shinde had caught fire and hence they returned to the house of Shinde. They noticed that fire brigade was extinguishing the fire. He has further stated that at that time constable Sonawane (PW-9) came running and requested to accompany him as Chandrashekhar and PW-9 were assaulted. Thereafter they proceeded to the spot and found that Chandrashekhar was lying in unconscious condition and hence they carried him to the civil hospital where he was declared to be dead. 11. Omissions are proved in his cross examination that he has not stated in the statement before police that after they went ahead at about 100 feet from the house of Chandrashekhar, they returned back; somebody had disclosed them that some quarrel had taken place; they were orally requested to help in extinguishing the fire; Constable Sonawane came there running; Constable Sonawane 16 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 informed them that he and Chandrashekhar were assaulted and they should go to the spot where Chandrashekhar was lying and that Sonawane took them to the spot where Chandrashekhar was lying. In his further cross examination he has admitted that he had not reported the matter to API Bomdar (PW-19) about the assault on Chandrashekhar. He has also admitted that only one wireless message was sent from the mobile van to API Bondar and the vehicle from Kotwali police station did not accompany them. He has further admitted that he was not knowing about the whereabouts of constable Sonawane in the civil hospital. Further omission is proved in his cross examination that he had not stated in the statement before police that constable Sonawane was in the mobile van up to civil hospital. He has further admitted that he had not seen any motorcycle at the spot from where Chandrashekhar was lifted in the mobile van. According to him, Chandrashekar had not sustained any bleeding injury. He denied that only to save constable Sonawane from the Departmental Enquiry, he has given false evidence. 12. Apart from the evidence of these witnesses it transpired from the evidence of the Investigating Officer, PI Mahajan (PW-23) that in the sketch of scene of offence the exact spots where the gun, Chandrashekhar and the motorcycle were lying, are not shown. He has admitted that the motorcycle on which deceased and PW-9 were allegedly proceeding, was not seized during the investigation. He has further stated that on 15.12.2003, constable Sonawane (PW-9) had 17 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 not met him. Though he took search of PW-9 Constable Sonawane on 15.12.2003 in the civil hospital and in the police station, yet he was not able to trace him. He has also admitted that for the first time he met constable Sonawane on 16.12.2003 and thereafter his statement was recorded between 10.30 and 11.00 a.m. He has further admitted that constable Sonawane did not inform him that his clothes were torn during the incident. He has admitted that on 15.12.2003 constable Sonawane (PW-9) had not came to the Kotwali police station. He has also admitted that he had not collected the broken glass of the tempo in question as well as the motorcycle. The omissions in the police statement of PW-9 Sanjay Sonawane and PW-14 Sanjay Berad are proved in his cross examination. 13. In the backdrop of these facts, it is urged by Mr.R.N.Dhorde, learned counsel for the appellants in the appeals of conviction and respondents in the appeal against acquittal that no reliance can be placed on the sole testimony of PW-9. It is urged that the entire episode has to be divided in two parts viz, first incident was in respect of burning of election office of Chandrashekhar (deceased) and second part of assault on Chandrashekhar. It is urged by learned counsel for the accused that when PW-9 was returning to the office of Chandrashekhar, he noticed that PW-1 Balasaheb and PW-13 Sachin were proceeding in a marshal jeep, who had informed him that some quarrel had taken place at the office of Chandrashekhar, at that time he had not noticed that the said jeep 18 Cri. Appeal No.202/2005 WITH Cri. Appeal No.304/2005 WITH Cri. Appeal No.454/2005 was being chased by anybody. It is also urged that after PW-9 reached at the election office of Chandrashekhar, though he noticed that the same was burning, yet inspite of availability of phone facility he did not avail the same to report the incident to police. Secondly, according to PW-9 at that time deceased had informed him that his jeep was being chased by the accused and hence they should report the police, when the jeep was already noticed by PW-9 and he had witnessed that the same was not being chased by anybody. It is further urged that it transpired from the evidence of PW-9 that when he and the deceased were proceeding to the police station on the motorcycle, the appellants and their associates assaulted them and after the assault PW-9 went on foot to the house of the deceased to inform the incident of assault to the family members of the deceased, however he had not used the motorcycle, which, according to him, was available. Apart from it at the other side of the