... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.442 OF 1989 CRIMINAL APPEAL NO.442 OF 1989 CRIMINAL APPEAL NO.442 OF 1989 1. Bhanudas Dnyanu Patil ) 2. Prakash Dinkar Patil ) 3. Laxman Sakharam Jadhav ) 4. Sahaji Dnaynu Patil ) 5. Uttam Dnyanu Patil ) 6. Bajirao Dnyanu Patil ) All agriculturists, ) normally resident of ) Dushere, Tal.Karad, ) Dist. Satara. ) ...Appellants Vs. 1. The State of Maharashtra ) 2. Shantabai Bhaskar Jadhav ) 3. Bhanudas Rama Jadhav ) 4. Malan Bhanudas Jadhav ) 5. Ananda Bala Jadhav ) 6. Tanaji Anna Jadhav ) Respondent Nos.2 to 6 ) resident of village ) Dushere, Tal.Karad, ) Dist. Satara. ) ...Respondents ------- Shri Prakash Naik for the Appellant Nos.1 and 3 to 6. Shri B.R. Patil with Shri Ganesh Gole for the Appellant No.2. Ms S.V.Gajare, A.P.P for the State. -------- CORAM : ABHAY S. CORAM : ABHAY S. CORAM : ABHAY S. OKA, J. OKA, J. OKA, J. DATE : OCTOBER 04/05/06/07/09 & DATE : OCTOBER 04/05/06/07/09 & DATE : OCTOBER 04/05/06/07/09 & 10, 10, 10, 2006. 2006. 2006. JUDGMENT: JUDGMENT: JUDGMENT: 1. Submissions of the learned Advocates for the parties were heard on the last date. The challenge in ... 2 ... this Appeal is to the Judgment and Order dated 26th June, 1989 passed by the learned 03rd Additional Sessions Judge, Satara in Sessions Case No.104 of 1987. By the impugned Judgment and Order, the accused No.1 is convicted of the offences punishable under sections 147, 149 read with section 307, section 149 read with section 326 and section 149 read with section 324 of the Indian Penal Code. The accused No.2 is also convicted for the same offences. The accused Nos.3,4 and 6 have been convicted for the offences under sections 147, 148, 324, 149 read with section 307, section 149 read with section 326 of the Indian Penal Code. The accused No.5 was convicted of the offence under sections 147, 148 and 149 read with section 324, section 307, section 326 and 149 read with section 324 of the Indian Penal Code. However, he was acquitted of the offence under section 25(1)(a) of the Arms Act, 1954. The accused No.1 has been convicted to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-. In default, he is directed to suffer rigorous imprisonment for three months for each offence. The accused No.2 is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-. In default he has been directed to suffer rigorous imprisonment for three ... 3 ... months for each offence. The accused Nos.3, 4 and 6 have been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-. In default, the said accused persons have been directed to suffer rigorous imprisonment for three months for each of the offences. The accused No.5 is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/- for the offences under section 147, 148 and 149 read with section 324 of the Indian Penal Code. In default he has been sentenced to suffer rigorous imprisonment for three months for each of the offences. He has been further sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1,000/- for the offence under section 307. In default he is directed to suffer rigorous imprisonment for one year. He is also sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1,000/- for the offences under section 326 of the Indian Penal Code. In default, he is directed to suffer rigorous imprisonment for one year for the offence under section 326 of the Indian Penal Code. The learned Trial Judge directed that on realisation of the fine, certain amount shall be paid to P.W.No. 8 Shantibai Bhaskar Jadhav, P.W.No. 6 Bhanudas Rama Jadhav, P.W.No. 10 Tanaji Anna Jadhav and P.W.No. 11 ... 4 ... Ananda Bala Jadhav. 2. It will be necessary to refer to the prosecution case in brief. According to the prosecution case, the incident occurred on 26th February, 1987 at village Dushere. Apart from the present case there was a counter case. The village Dushere is located to the north of city of Karad. There is another village called Karve standing to the north of village Dushere. The public road leading from Karad passes by village Karve which runs towards Dushere. There is a house of the complainant Bhanudas Ramji Jadhav (P.W.No.6) in village Dushere. The allegation of the prosecution is that on 26th February, 1987, in the night at about 10.00 p.m, on a public road in front of the house of the complainant the accused persons i.e the Appellants were members of unlawful assembly and in prosecution of common object of such assembly of committing the murder of the complainant, his wife Malan (P.W.No.9) and Shantabai (P.W.No.8),(the wife of complainant’s brother) and to cause injuries to the prosecution witnesses, committed offence of rioting. The allegation is that they committed offence of rioting with deadly weapons and the accused No.5 was holding a revolver and others ... 5 ... were carrying heavy sticks. The allegation against the accused No.5 is that he attempted to commit murder of the complainant, Malan (P.W.No.9) and Shantabai (P.W.No.8) by the said revolver. The allegation is that he fired bullets from the revolver aiming at the complainant Bhanudas, Malan and Shanatabai and caused injuries to the said persons. The allegation is that the accused persons caused hurt to the prosecution witnesses Hanumant Dattatray Jadhav (P.W.No.2), Tanaji Anna Jadhav (P.W.No.10) and Ananda Bala Jadhav (P.W.No.11). The allegation against the accused No.5 was that he was in possession of a fire arm namely, a 38 bore KF revolver though he was not holding a valid licence to possess the revolver. 3. Before referring to the evidence on record and before referring to the submissions made by the learned Advocates appearing for the parties, it will be necessary to refer to the affidavits filed by certain Respondents. It is stated that the Respondent Nos.2 and 3 have since died. The Respondent Nos.4, 5 and 6 have tendered affidavits through their Advocates. In the said affidavits it is stated that after the Appellants were convicted, the said Respondents are having cordial relationship with the ... 6 ... Appellant. It is stated that they have put an end to the dispute between them and the accused persons. It is stated that the accused Appellants may not be sent to jail for undergoing imprisonment. 4. Shri Naik, the learned counsel appearing for some of the Appellants invited my attention to the evidence on record. His first submission is that the entire prosecution case is unbelievable and the same deserves to be discarded. He submitted that there is no evidence available on record against the Appellants. He submitted that so far as accused No.5 is concerned, there is nothing on record to show that he was possessing a revolver and that he fired bullets from the said revolver. He submitted that alleged seizure of the said revolver is itself doubtful in as much as there is no discovery under section 27 of the Indian Evidence Act and it is alleged that in a cattle-shed near the house of the accused No.5, the said revolver was found. He submitted that as the discovery of revolver was itself doubtful, the prosecution case becomes vulnerable. He pointed out several discrepancies and inconsistencies in the prosecution case. ... 7 ... 5. Without prejudice to his submissions on merits, he placed reliance on the decisions of the Apex Court in the case of Bankat V. State of Bankat V. State of Bankat V. State of Maharashtra [(2005)1 Supreme Court Cases Page 343) Maharashtra [(2005)1 Supreme Court Cases Page 343) Maharashtra [(2005)1 Supreme Court Cases Page 343) and Surendranath Mohanti vs. State of Orissa (AIR 1999 Surendranath Mohanti vs. State of Orissa (AIR 1999 Surendranath Mohanti vs. State of Orissa (AIR 1999 Supreme Court Page 2181) Supreme Court Page 2181) Supreme Court Page 2181). He submitted that though the offences are not compoundable, in view of what is held by the Apex Court, the substantive sentence can be reduced to the one which is already undergone. He placed reliance on the affidavits filed by the Respondents. Shri B.R. Patil appearing for the other Appellant has adopted the submissions of Shri Naik. The learned A.P.P. supported the impugned judgment and order by pointing out the evidence on record and the findings recorded by the learned Trial Judge. 6. With a view to appreciate submissions made by the Advocates appearing for the parties, it will be necessary to refer to the evidence of the prosecution witnesses. The first witness (P.W.1) is Shri Anna Bandu Jadhav. He is a panch witness who has signed the panchnama of the scene of offence. He has stated that one bullet was found lying near house of Bhanudas and certain bangle pieces were found inside his house. In the cross-examination he stated that he did not ... 8 ... notice any bullets or pieces of bangles at the scene of offence. He proved the panchnama in evidence. P.W.2 Shri Hindurao Ganpati Jadhav is again a panch witness. Discovery of sticks was made at the instance of the Appellant No.3 in presence of the said witness. He proved the panchnama in evidence. 7. P.W.3 Mohan Dada Jadhav turned hostile and the learned Public Prosecutor was permitted to ask him questions in the nature of cross-examination. P.W. No.5 Prakash Jadhav was allegedly a panch witness in whose presence the revolver used by the Appellant No.5-accused No.5 was seized. P.W.6 Bhanudas deposed that he was residing in his house with his wife Malan, sons Shashikant and Manohar, brother Anna Rama Jadhav and brother’s family in one house. According to him his nephew Shivaji Anna Jadhav resides at village Shinoli as his wife was working there as a primary school teacher. He stated that elections of the village panchayat were held in December 1986. He stated that panel of Shankar and the panel of the accused No.1 Bhanudas D. Patil had contested the said election. The panel of accused No.1 included P.W.3 Mohan Dada Jadhav, Bhagwan Shantaram Jadhav, Shivaji Sakharam Jadhav and Yashoda Vishnu Jadhav. According ... 9 ... to the said witness at about 08.00 p.m. on 26th February, 1987 he was sitting in the temple of Maruti. At that time he heard commotion from the direction of his house and shouts "catch catch". He noticed that accused No.5 was running with a stick in his hand towards the land Khadakmala. He was being chased by the nephew of the said witness, namely, Subhash and Jagannath. However, they could not catch him. Therefore, P.W.6 took them back to his house. He stated that after pacifying them he returned to the temple for sleeping. At about 10.00 p.m. he again heard commotion from the direction of his house, therefore, he rushed to his house and through northern door he came out on the road on the southern side. He found that the accused No.2 was catching shirt of his son Shashikant and the accused No.1 was giving filthy abuses to his nephew Jagannath. He stated that at that time electricity light was available from the nearby electricity pole besides the light of the tube light in kitchen room in his house. He stated that when he was attempting to rescue Shashikant, he found that the accused Nos.3 to 5 were rushing towards them. The accused No.5 was ahead of all of them. The accused No.5 was possessing a revolver and the other two accused were possessing sticks in their hands. ... 10 ... When they reached at about a distance of five feet from his house, the accused No.5 started firing bullets from revolver in his hand. The first bullet hit Shantabai the widow of the deceased brother of the witness. The said bullet hit Shantabai on her left axilla. The second bullet hit at the ankle of his wife Malan. The third bullet hit his right ankle. He stated that his nephew Tanaji sustained sticks blow from either of the accused Nos.3, 4 and 6 on his head and ear. He stated that at that time, Ananda Bala Jadhav tried to rescue him. However, the said Ananda also sustained injuries due to stick blow inflicted by either of the said three accused persons. He stated that because of the sound of firing, a mob of about 70 to 75 people gathered there. He stated that mob got enraged and chased all the accused persons towards Maruti temple. He stated that the injured persons were taken to the hospital. The said witness has been extensively cross-examined. In the cross-examination he admitted that he had not seen Vishnu. He stated that the accused No.2 caught his son Shashikant’s neck by shirt just in front of the southern door of his house. He stated that when he was in his house, the accused No.1 was giving abuses to Jagannath. He stated that female members of the family had also come ... 11 ... out and were standing at a distance of about two and half feet from the door frame. He denied the suggestion that besides accused Nos.3 to 6, number of persons had come alongwith them at the place of incident. In the further cross-examination he stated that Ananda received a stick blow after Tanaji sustained a stick blow. He stated that at the time of incident, besides the accused persons, no other person was there having weapon in his hand and no third person has caused injuries to the accused persons in his presence. 8. It will be also necessary to refer to the evidence of P.W.7 Hanumant Dattatraya Jadhav. He stated that he participated in election campaign of the village panchayat election. He stated that after the election he was subjected to threats by the accused Nos.1,2 and 5. He stated that on 26th February, 1987 at about 08.00 p.m. he was sitting in his grocery shop. At that time his customers Anita and Sarjerao Kisan Jadhav were there. The accused No.5, according to the said witness, came in front of his shop and started giving filthy abuses to him. The accused No.5 climbed on the roof of house of Sakharam Patil and picked up a stick. After noticing his ... 12 ... intentions, the witness ran towards the house of Bhanudas (P.W.6). He stated that while he was entering the house through its southern door the accused No.5 gave him blow on his back. According to him the second blow was inflicted on the hand of Mangal Jadhav. When he raised hue and cry, Subhash and Jagannath came and they chased the accused No.5. 9. At about 10.00 p.m., the accused No.2 and the accused No.1 came near the southern door of the house of P.W.6 Bhanudas and started giving abuses. Shashikant and Jagannath came out of house from the southern door of the house. According to the said witness at the relevant time, he alongwith Shobha Jadhav were standing under the southern door frame. He stated that sticks were only in the hands of accused Nos.3,4 and 6 and they were led by accused No.5 who was carrying a revolver in his hand. He further stated in his evidence as under: " Sound of 2/3 fired bullets was vented to the air. One bullet hit the right ankle of PW No.6 Bhanudas. Thereby lot of commotion effected. I saw Tanaji Anna Jadhav rushing out of the house of PW No.6 on the road and he ... 13 ... sustained stick blow at the hand of one of the accused persons at his head. I also saw Ananda Bala Jadhav rescuing the scuffle he also sustained stick blow to his head at the hands of one of the accused persons. Because of the said commotion nearby people rushed to the spot. The said gathered people noticing injuries sustained by the females chased the accused persons, towards north direction. Vishnu Ganu Shinde took Ananda Bala Jadhav to Karad on his motorcycle". The said witness has been extensively cross-examined by the Advocate for the accused. In the cross-examination he stated that the people in the area witnessed him chasing Subhash and Jagannath. He stated that he himself, Subhash and Jagannath rested in the northern room. He stated that at about 09.30 p.m he took the food in the house of P.W.6 Shri Bhanudas. 10. The second material witness is Shantabai Bhaskar Jadhav (P.W.8). Her evidence will have to be referred to in detail as she is the injured person. She stated that she is residing together with the ... 14 ... family of the P.W.6. She stated that at about 08.00 p.m. on the fateful day, the women in the house were engaged in cooking food. At that time P.W.7 Hanmant rushed into kitchen room as he was being chased by the accused No.5. He sustained stick blow at the back at the hands of the accused No.5. She stated that the accused No.5 entered the kitchen room and caused Mangal to sustain stick blow in the kitchen room. In the commotion caused by the abuses hurled by the said witness and other persons present in the house, the accused No.5 went out by southern door and ran away. Subhash and Jagannath tried to chase him but could not succeed in getting the accused No.5. P.W.6 Bhanudas brought back Subhash and Jagannath. 11. According to P.W.8, at about 10 p.m, the accused Nos.1 and 2 came in front of southern door of her house when she was engaged in cleaning utensils. According to her they started giving abuses to P.W.7 Hanmant, Subhash and Jagannath. The accused No.2 caught the shirt on the person of Shashikant as the said Shashikant rushed alongwith Subhash and Jagannath to catch the accused No.1. There was exchange of abuses between accused no.1 and Jagannath at that time. P.W.6 Bhanudas after hearing the hue and cry ... 15 ... raised by the said witness and others, rushed to the spot from Maruti temple after passing through northern door and southern door of his house. The accused Nos.3 to 6 rushed from the eastern direction to the spot. The accused No.5 was ahead of accused Nos.3, 4 and 6 and was having a revolver in his hand. There were sticks in the hands of accused Nos.3,4 and 6. At that time P.W.8 Mangal and P.W.No. 9 Malan were standing just outside the door frame. At that time accused No.5 fired bullets from the revolver in his hand and P.W.8 received a bullet in her left armpit. According to P.W.8, she collapsed due to her bleeding injury. Malan sustained bleeding injury to the right leg and P.W.6 to his right leg near ankle. She deposed that the blouse on her person was torn due to the bullet. P.W.8 was extensively cross-examined. She admitted that she alongwith Malan and Mangal intervened and separated Jagannath and Subhash from accused No.2. She stated that P.W.7 Hanumant did not intervene. She admitted that P.W.6 Bhanudas rushed from the Maruti temple and he participated in separating Jagannath and Shashikant from accused Nos.1 and 2. She denied the suggestion that number of people had gathered or had rushed to the spot and were having sticks in their hands. She denied the ... 16 ... suggestion that the accused No.5 was not possessing a revolver. 12. P.W.9 Malan, wife of Bhanudas Jadhav (P.W.6) deposed that at about 08.00 p.m. she was working in the kitchen room when P.W.7 Hanmant Dattatray Jadhav abruptly entered the kitchen. At that time the accused No.5 was chasing Hanmant and the accused No.5 inflicted stick blow on the person of Hanmant. Her daughter-in-law Mangal also received stick blow at the hands of accused No.5 in the kitchen. She stated that by leaving his footwear in the kitchen, the accused No.5 disappeared towards Maruti temple. Though Subhash and Jagannath attempted to chase him they could not succeed. She deposed that at about 10.00 p.m in the night, when she alongwith Mangal, Subhash and P.W.8 Shantabai were taking meal, the accused Nos.1 and 2 came in front of the southern door of the house and asked the persons present inside to send Hanmant outside the house as they wanted to teach him a lesson. At that time P.W.9’s son Shashikant and Jagannath went to accused No.2 when the accused No.2 caught shirt on the person of Shashikant. P.W.9 stated that she alongwith P.W.8 and Mangal started separating Shashikant from accused No.2. When they ... 17 ... raised hue and cry, P.W.6 Bhanudas came to the spot. At that time accused No.5 with his revolver came to the place of incident from eastern side alongwith accused Nos.3,4 and 6 who were having sticks in their hand. The accused No.5 fired bullet firstly towards Shanatabai (P.W.8) causing her injury on left armpit. According to her the second bullet hit her right ankle and the third bullet hit right ankle of her husband that is P.W.6 Bhanudas. She stated that after the firing, all the accused ran towards the eastern side. In the cross-examination she stated that mob gathered at the place of the incident only after the incident of firing. In the cross-examination she stated that she was unable to tell where P.W.6 Bhanudas was standing when she received bullet injury. She stated that he was standing on her right hand side. She admitted that she did not tell the police about receiving bullet injury by P.W.6 Smt. Bhanudas. She denied other suggestions given in the cross-examination. 13. P.W.10 Tanaji Anna Jadhav stated that he was working in his land throughout the day on the day of incident and returned home at 08.00 p.m. On the way to his home, he noticed that Jagannath, Shashikant and ... 18 ... his uncle P.W.6 Bhanudas were standing near Maruti temple. He stated that he learnt the incident pertaining to Hanmant from them and then all of them returned home from the temple. He stated that at about 10.00 p.m., the accused Nos.1 and 2 came in front of his house and started asking about whereabouts of P.W.7 Hanmant. He stated that Shashikant and Jagannath went towards accused Nos.1 and 2 and Shantabai, Malan and Mangal followed them. He stated that the accused No.5 had a revolver in his hand and the accused Nos.3, 4 and 6 who came there subsequently had sticks in their hand. He stated that accused No.5 fired four to five bullets as a result of which Shantabai, Malan and Bhanudas suffered injuries. He stated that accused No.4 Shahaji gave him a stick blow on his head. He stated that he was unable to tell as to who gave him second blow with the stick. In the cross-examination, he stated that there was scuffle between Shashikant and accused No.2. He stated that three ladies and Subhash were separating Shashikant from accused No.2 when he came out of house. He stated that P.W.6 Bhanudas arrived thereafter. He stated that the firing occurred when the three ladies, Subhash and Bhanudas were separating Shashikant from accused No.2. He stated that the ... 19 ... accused No.5 started firing as he reached the spot at about 10 feet to the east of accused No.1. He denied that about 10 to 15 persons including the accused Nos.3 to 6 came to the spot having sticks in their hand. He denied the suggestion that a mob of about 200 people had gathered in front of their house at 08.00 p.m. 14. P.W.7 Hanmant stated that village panchayat elections were held in 1986. He stated that there were two groups, one headed by Shankar and the other headed by the accused No.1.