1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Appeal No. 231 of 1988 1. Rahul Ulhas Pise 2. Dhondiram Balkrishna Pise ..Appellants (Org.Accd.Nos.1 & 2) Vs. The State of Maharashtra ..Respondent ALONG WITH Criminal Appeal No. 232 of 1988 1. Nandkumar Balkrishna More 2. Deepak @ Dilip Balkrishna More ..Appellants (Org.Accd.Nos.3 & 4) Vs. The State of Maharashtra ..Respondent ALONG WITH Criminal Appeal No. 630 of 1988 The State of Maharashtra ..Appellant Vs. 1. Rahul Ulhas Pise 2. Dhondiram Balkrishna Pise 3. Nandkumar Balkrishna More 4. Deepak @ Dilip Balkrishna More ..Respondents (Org.Accd.Nos.1 to 4) 2 ALONG WITH Criminal Revision Application No. 249 of 1988 Pradip Laxmanrao Pise ..Applicant (Org. Complainant) Vs. 1. Rahul Pise and ors. ..Respondents Mr. Shirish Gupte, Senior Counsel with Mr. S.V. Marwadi i/by Mr. Ganesh Gole for appellants in Criminal Appeal Nos. 231 & 232 of 1988 and for respondent nos.1 to 4 in Criminal Appeal No. 630/88 and for respondent nos.1 to 6 in Cri. Revision Application No. 249/88. Mr.P.S.Hingorani, APP for respondent-State in Cri.Appeal Nos.231 and 232 of 1988, for appellant-State in Cri. Appeal No. 630/88 and for respondent no.7 in Cri.Rev. Application No. 249/88. Mr. Niteen Pradhan i/by Ms. S.D. Khot for applicant – org. complainant in Cri. Rev. Application No. 249/88. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : July 13, 2009. Pronounced on : August 03, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. These three appeals and the Criminal Revision Application arise from the order of conviction and sentence passed by the 3 learned Additional Sessions Judge at Kolhapur on 21/3/1988 in Sessions Case No. 28 of 1986. The operative part of the order of conviction and sentence reads as under:- “ The accused Nos.1 to 4 are convicted for the offences under Sections 147, 148, Section 326 read with Sections 149, Section 323 read with Section 149 of I.P.C. 1. The accused Nos.1 to 4 are convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.500/- i/d to suffer R.I. for 15 days for the offence under Section 147 of I.P.C. 2. The accused Nos. 1 to 4 are convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.1000/- i/d to suffer R.I. for three months for the offence u/s 148 of I.P.C. 3. The accused Nos.1 to 4 are convicted and sentenced to suffer R.I. for five years and to pay fine of Rs.2000/- i/d to suffer R.I. for 6 months for the 4 offence u/s 326 read with Section 149 of I.P.C. for causing grievous hurt to deceased Laxman Pise and Sharad Pise. 4. The accused Nos. 1 to 4 are convicted and sentenced to suffer R.I. for one year and to pay fine of Rs.1000/- i/d to suffer R.I. for three months under Section 323 read with Section 149 of I.P.C. for causing hurts to deceased Laxman Pise, Sharad Pise and Pradip Pise. 5. The substantive sentences of accused nos. 1 to 4 to run concurrently. Accused No.1 was in custody from 29.10.85 to 2.11.85. Accused No.2 was in custody from 26.10.85 to 29.10.85. Accused No.3 was in custody from 29.10.85 to 2.11.85. Accused No.4 was in custody from 29.10.85 to 2.11.85. and they are entitled to the set off of the said period under Section 428 of Cr.P.C. 5 6. The accused Nos.1 to 4 are acquitted of the offences under Sections 302 read with Section 149 and Section 307 read with Section 149 of I.P.C. 7. Accused Nos.5 and 6 are acquitted of the offences for which they are charged and prosecuted. 8. The amount of fine if recovered, out of the said amount, amount of Rs.4000/- be awarded to injured Sharad Pise under Section 357 of Cr.P.C.” 2. Criminal Appeal No. 231 of 1988 has been filed by accused nos.1 and 2 and Criminal Appeal No. 232 of 1988 has been filed by accused nos. 3 and 4. Whereas Criminal Appeal No. 630 of 1988 has been filed by the State Government against the acquittal of accused nos.1 to 4 for the offences punishable under Section 302 read with Section 149 and Section 307 read with Section 149 of I.P.C. Criminal Revision Application No. 249 of 1988 has been filed by the original complainant – Shri Pradip Laxmanrao Pise (PW 19) praying for setting aside the acquittal order under Section 302 read with Section 149 and Section 307 read with Section 149 of I.P.C. and also the acquittal of accused 6 nos.5 and 6 from all the offences. Hence, all the three appeals and the Criminal Revision Application are being decided by this common judgment. During the pendency of these appeals accused no. 2 Dhondiram died and hence Criminal Appeal No.231 of 1988 and Criminal Appeal No.630 of 1988 stand abated qua the said accused and, therefore we will have to examine the appeals only in respect of accused nos.1, 3 and 4. 3. Deceased – Laxman Pise was the younger brother of accused no.2 – Dhondiram. Dhondiarm’s son Ulhas died in 1984 and left behind two sons i.e. Rahul – accused no.1 and Girish – Juvenile acquitted accused. Thus, Ulhas and Girish are the grand children of accused no.2 – Dhondiram. There was a family partnership business of Hotel and Restaurant and the brothers had other immoveable properties at Kolhapur as well as Panhala and disputes about the property and the share of the brothers were going on. By filing proceedings under Section 145 of Cr.P.C. one of the parties was successful in obtaining the possession of Meghadoot Hotel, Kolhapur. The brothers also possessed agricultural land at village Nigawe and Kerle. The 7 hotels at Kolhapur and Panhala were being run by a partnership firm with accused no.1, complainant’s brother – Sharad (PW 20), the complainant himself and one Ranjit being the partners, since the year 1966. In the month of October, 1985, the paddy crop in the land at Nigawe was harvested and, therefore, on the date of the incident i.e. 26/10/1985 deceased – Laxman along with his two sons, Pradip and Sharad went to the land to collect their share of paddy by his Ambassador Car bearing Registration No. MHK 6253 between 3.30 p.m. to 4 p.m. Within half an hour thereafter, accused no.2 – Dhondiram along with his two grand children i.e. Rahul – accused no.1 and Girish – Juvenile Accused reached the same place to collect the paddy and they had gone by an autorickshaw. The Ambassador Car as well as the autorickshaw were parked near the pandan, little away from the thrashing floor. It appears that Dhondiram wanted to collect the entire paddy whereas deceased – Laxman suggested that they should take half share each pending the dispute. It is necessary to mention here itself that deceased-Laxman was a practicing Advocate and his son Sharad had also joined him in the said profession. 4. As per the prosecution case when both the parties 8 reached the thrashing floor Tukaram Chile – PW 10, Ramchandra Khande – PW 11, Shripati Khande – PW 12 and Laxman Gaikwad – PW 13 were present at the spot and Chandrakant Patil – PW 14 was the owner of the neighbouring land who was also watching the incident. When the deceased suggested that paddy be shared in equal proportion between the two families, the accused Dhondiram started abusing the deceased and his two grandsons also joined him in the quarrel. Accused no.1 - Rahul went towards the school side along with his brother Girish and the complainant and his brother went towards the car. The deceased and Dhondiram stayed at the thrashing floor. The complainant and his brother after reaching near the car realized that its tyre was deflated and, therefore, they called driver Laxman Gaikwad – PW 13 towards the car. While they were removing the deflated wheel accused no.1 – Rahul and his brother Girish, accused nos.3 and 4 and three unknown persons came towards them with arms in their hands. Accused nos.3 and 4 were carrying swords and also Girish was with sword, other accused were armed with sticks, chains and rods etc. They assaulted the complainant as well as Sharad. The complainant warded off the sword attack and sustained injuries on his fingers. Sharad sustained about twenty injuries, the 9 complainant shouted and alerted his father. When Sharad was trying to escape the assault, he was chased and beaten. Accused no.4 – Deepak and Girish then proceeded towards the thrashing floor with swords in their hands and Girish gave sword blow on the head of the deceased. Accused no.4 gave another blow of sword on the chin of the deceased. The deceased fell down and even thereafter accused no.2 – Dhondiram started beating the deceased with a stick in his hands. The complainant tried to intervene and at that time all the accused ran away. The complainant shifted his father and brother to the CPR Hospital at Kolhapur in a tractor trolley and on their admission at the said hospital they were examined by Dr.Ramchandra Magadum – PW 21 who issued medical certificates at 63 and 66 respectively. Thereafter the complainant went to the Karvir Police Station and recorded his complaint with Kalidas Jadhav, PSI – PW 25 at about 7.30 p.m. on 26/10/1985 itself. After some time accused no.2 – Dhondiram Pise also went to the said police station and lodged a complaint which was registered as N.C. (Exhibit 77) at about 8 p.m. and he was taken into custody. The complainant after he filed his FIR also produced the stick used by accused no.2 in assaulting the deceased – Laxman. The complainant and accused no.2 were sent for medical 10 examination which was conducted by Dr.Shamkant Talawekar – PW 22 and he issued medical certificates at Exhibits 70 and 71 respectively. The deceased Laxman was unconscious and Laxman as well as Sharad had sustained serious injuries and, therefore, Dr. Prakash Shahapurkar, Surgeon who was running his own private hospital was called to the CPR Hospital. He examined both of them at about 11.30 p.m. Both of them were shifted to Dr.Shahapurkar’s hospital on 29/10/1985. Deceased Laxman continued to be unconscious till 4/11/1985. After he had regained his consciousness, his dying declaration was recorded on 6/11/1985 by the Special Executive Magistrate. On 10/11/1985 Laxman died. Autopsy on his body was conducted by Dr.B.H.Ghatage – PW 9 who signed the PM notes at Exhibit 37 on the same day. Dr. Shahapurkar issued medical certificates after examining Sharad and Laxman at Exhibits 73 and 74 respectively. On 7/1/1986 T.I. Parade was conducted by Vasant P. Rane – PW 15 for identification of the unknown accused and in the said parade only Sharad identified accused no.6 and the complainant could not identify any accused. Dinkar Dhobale – PW 16 was the panch witness for the TI parade and its memorandum was drawn at Exhibit 45. On 25/10/1985 PSI Kalidas Jadhav visited the spot and drew spot panchanama at 11 Exhibit 24 which was proved by the panch witness Krishnath Mahipati Ekshinge – PW 3. The investigation was then taken over by PSI Gahininath Ingale -PW 26 and PSI Nivrutti Powar - – PW 27. At the spot of the incident near the ambassador car blood stains were found from the soil and, therefore, samples were collected and sent for C.A. On completion of investigation PW 27 filed the charge-sheet dated 17/1/1986. C.A. Reports were received at Exhibits 82 to 84. The case came to be committed to the Sessions Court on 13/2/1986 and the Sessions Court framed the charge on 7/1/1988. As there is variance between the charge and the issues framed by the Sessions Court, we proceed to deal with these appeals on the basis of the charge framed which reads as under: “CHARGE I, C.M. Patil, Additional Sessions Judge, Kolhapur do hereby charge you, 1. Rahul Ulhas Pise, Age 19 yrs., resident of 2425 C Ward, Kolhapur 2. Dhondiram Balkrishna Pise, Age 62 yrs., resident of 2425 C Ward, Kolhapur 3. Nandkumar Balkrishna More, Age 22 yrs., resident of 2472 D Ward, Kolhapur 4. Deepak alias Dilip Balkrishna More, Age 19 yrs., resident of 2472 D Kolhapur 12 5. Anil Vasantrao Bhalkar, Age 22 yrs., resident of 2556 C, Kolhapur 6. Sanjay Ganpatrao Chavan, Age 22 yrs., resident of 2548 C, Kolhapur as follows: That you accused Nos.1 to 6 above named, alongwith juvenile offender Girish Ulhas Pise, on 26-10-1985 at about 6-00 P.M. in the field bearing Gat No.14 and in the foot track (Panand) near the said field at village Vadange, Taluka Karvir, District – Kolhapur, were members of an unlawful assembly, the common object of which was to assault Laxman Balkrishna Pise, Sharad Pise and Pradip Pise and in prosecution of such common object did commit an offence of rioting which is punishable under section 147 of the Indian Penal Code. That you accused above named along with juvenile offender, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object namely to assault deceased Laxman Pise, Sharad Pise and Pradip Pise and committed an offence of rioting with deadly weapons namely, you accused no.1 was armed with stick, you accused no.4 was armed with sword and others were armed with sticks and cycle chain and assaulted the persons named above and thereby committed an offence punishable under section 148 of the Indian Penal Code. That you accused above named along with juvenile offender Girish Pise, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object to assault deceased Laxman B. Pise, Sharad Pise and Pradip Pise committed murder by intentionally or knowingly causing the death of Laxman Pise (who died due to the said injuries of the assault on 13 30-11-1985) and thereby committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code. Alternatively you accused above named, along with juvenile offender, on the aforesaid date, time and place, in furtherance of the common intention of you all, did commit murder by intentionally or knowingly causing the death of Laxman Balkrishna Pise and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. That you accused above named along with juvenile offender, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object, did an act to wit tried to commit assault on Sharad Pise by sword on his head, by cycle chain and sticks with such intention or knowledge and under such circumstances by that act you had caused the death of Sharad Pise you would have been guilty of murder and that you caused hurt to the said Sharad Pise by the said act and thereby committed an offence punishable under Section 307 read with Section 149 of the Indian Penal Code. That you accused above named along with juvenile offender, in furtherance of the common intention of you all, on the aforesaid date, time and place, did an act to wit tried to commit assault on Sharad Pise by sword on his head, by cycle chain and sticks with such intention or knowledge and under such circumstances, by that act you had caused the death of Sharad Pise you would have been guilty of murder and that you caused hurt to the said Sharad Pise by the said act and thereby committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code. Alternatively, you accused above named along with juvenile offender, on the aforesaid date, time and place were members of an unlawful assembly and in prosecution of the common object 14 you voluntarily caused hurt to Sharad Pise by means of instruments i.e. sword, stick and cycle chain, which is an instrument for stabbing and hitting and thereby committed an offence punishable under Section 326 read with Section 149 of the Indian Penal Code. That you accused above named along with juvenile offender, on the aforesaid date, time and place, in furtherance of the common intention of you all, you caused hurt to Sharad Pise by means of instruments i.e. sword, stick and cycle chain, which is an instrument for stabbing and hitting and thereby committed an offence punishable under Section 326 read with Section 34 of the Indian Penal Code. That you accused above named along with juvenile offender, on the aforesaid date, time and place, were members of an unlawful assembly and in prosecution of the common object you voluntarily caused hurt to Pradip Pise by means of stick and thereby committed an offence punishable under Section 324 read with Section 149 of the Indian Penal Code. Alternatively that you accused above named, along with juvenile offender, on the aforesaid date, time and place, in furtherance of the common intention of you all, you accused voluntarily caused hurt to Pradeep Pise by means of stick and thereby committed an offence punishable under Section 324 read with Section 34 of the Indian Penal Code.” 5. During the trial the prosecution examined in all 27 witnesses. PW 1 – Dipak Shah, PW 2 – Rajaram Chougule, PW 5 - Kiran Dinde, PW 6 – Sadashiv Palkar, PW 7 – Shripati Nagare, PW 8 – Vithal Nagare and PW 17 - Pandurang Patil were the 15 panch witnesses who turned hostile. PW 4 – Ambaji Ghatage was the panch witness for inquest panchanama at Exhibit 26 on 10/11/1985. Letter to the Chemical Analyzer at Exhibit 81 along with CA reports at Exhibits 82 to 84 were also placed on record. As per the prosecution, its case was supported by the ocular evidence of PW 10 – Tukaram Chile, PW 11 – Ramchandra Khande, PW 12 – Shripati Khande, PW 13 – Laxman Gaikwad driver, PW 14 – Chandrakant Patil, PW 19 – Pradeep Laxman Pise and PW 20 – Sharad Laxman Pise. However PW 11 - Ramchandra Khande, PW 12 – Shripati Khande, PW 13 – Laxman Gaikwad and PW 14 – Chandrakant Patil turned hostile and did not support the case of the prosecution. The impugned order of conviction and sentence is thus based on the evidence of three eye witnesses viz. PW 10 – Tukaram Chile, PW 19 – Pradeep Laxman Pise complainant and PW 20 – Sharad Laxman Pise. As noted earlier PW 19 and PW 20 are the injured eye witnesses. 6. From the spot of incident near the ambassador car blood samples were collected from the soil about a few feet away from the car and sent for CA. At the same time blood sample of Sharad Pise was also taken and sent for CA. The CA report at Exhibit 82 indicated that the soil sample detected human blood 16 of Group “B” and the CA report at Exhibit 84 showed that the blood group of Sharad Pise is “B”. The spot panchanama at Exhibit 24 has been proved by the evidence of PW 3 – Krishnath Ekshinge. The recovery of three swords purportedly made in the presence of PW 5 – Kiran Dinde has not been proved. The N.C. filed by accused no.2 at Exhibit 77 does go to prove that a quarrel between the party of the accused no.2 on the one hand and the party of the deceased on the other hand had taken place on 26/10/1985 at the thrashing floor in the land belonging to the family at village Nigawe and the quarrel had resulted into an assault. The complainant had taken Sharad – PW 20 as well as deceased – Laxman to the CPR Hospital and admitted them there between 7 and 7.30 p.m. on the date of the incident. Thus the only issue that was required to be proved by the prosecution before the Sessions Court was the involvement of the accused or some of them in the assault which resulted in the injuries caused to the complainant – PW 19 and Sharad – PW 20 and the deceased. PW 12 – Shripati Khade, one of the eye witnesses, who turned hostile before the trial court, supports the incident as narrated in the N.C. (Exh. 77) filed by accused no.2 – 17 Dhondiram and it further proves about the quarrel between the deceased and accused no.2 as well as subsequent incident of assault. However, the said witness stated in his examination-in- chief that it was accused no.2 who fell on the ground and prior to that PW 20 -Sharad gave him a stick blow and thereafter he was not in a position to see the incident. Injuries caused to accused no.2 have been explained in the N.C. and the medical certificate at Exh. 70 and, therefore, it was not necessary for the prosecution to explain the said injuries. In addition, the dying declaration at Exh. 91 was recorded after Dr. Shahapurkar – PW 23 had certified that deceased Laxman was conscious and fit to make a statement on 6/11/1985 at about 10.12 a.m. to 11.32 a.m., though in his cross-examination the said doctor stated before the trial court that no Dying Declaration of the deceased was recorded in his hospital and in his presence till Laxman was alive. The record does not support the said statement made by the doctor. This Dying Declaration corroborates the prosecution case that the incident of assault on the complainant party had taken place on 26/10/1985 between 4.30 p.m. to 5.30 p.m. in the agricultural land at village Nigawe and owned by the parties. It further corroborates that the injuries suffered by Laxman, Sharad and Pradip were on account of the assault inflicted on 18 them in the said incident. Therefore, the Dying Declaration at Exh. 91 recorded of the deceased Laxman cannot be discarded from our considerations and it deserves to be read to corroborate the prosecution case though, by itself, it cannot be treated as evidence as the Special Executive Magistrate who had recorded the same was not alive and hence could not be examined by the prosecution to prove the same. It is nowhere the case of the defence that on account of the alleged assault, the accused had acted in self defence which resulted in causing injuries to Pradip, Sharad and Laxman. The injuries noticed on the person of accused no.2 were minor and could be caused even by fall on the ground in the quarrel between accused no.2 and the deceased. The N.C. does not state that anyone from the complainant party was armed. These are some additional circumstances against the accused. The trial Court rightly referred to the observations in the case of Faddi Vs. State of Madhya Pradesh AIR 1964 SC 1850. In the said case it was contended that the First Information Report was inadmissible in evidence and should not have been, therefore, taken on record. Rejecting the said contentions Their Lordships in para 15 observed as under:- 19 “The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Section 25 of the Evidence Act and S. 162 of the Code of Criminal Procedure do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court viz., how and by whom the murder of Gulab was committed, or whether the appellant’s statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not. Admissions are admissible in evidence under Section 21 of the Act. ... It is, therefore, clear that admissions of an accused can be proved against him.” 7. It is also required to be noted at this stage that the trial against the juvenile accused has resulted into an acquittal. However, the fact of the said acquittal in an independent trial would not affect the present appeals which arose from a