-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION APPEAL NO.2 OF 2006 1. Shivanand @ Shiva Shivshankar ] Algundi, Age 26 years, ] Occ: Labour, Residing at ] Sunil Nagar, Solapur ] ] 2. Basavraj @ Basu Sidram Makase ] Age 22 years, Occ: Labour, ] Residing at Sunil Nagar, ] Solapur ] ] 3. Jagdish Sharanappa Kumasagi ] Age 22 years, Occ: Labour ] Residing at Asha Nagar, ] Solapur ] ] 4. Sidharam Basannappa Nimbal ] Age 25 years, Occ: Labour ] Residing at Asha Nagar, ] Solapur ] ] 5. Raju Sidharam Hulgeri ] Age 25 years, Occ: Nil ] Residing at Kalewati Nagar, ] Solapur ] ] 6. Balu Sidharam Makase ] Age 19 years, Occ: Nil ] Residing at Sunil Nagar, ] Solapur ] ] 7. Sidharam Nagnath Hitnali ] Age 21 years, Occ; Labour ] Residing at Sunil Nagar, ] Solapur ] ] 8. Suryakant Nagnath Gujale ] Age 19 years, Occ: Labour, ] Residing at Kalawati Nagar, ] Solapur ] ] 9. Vijay Prakash Savant, ] -2- Age 23 years, Occ: Labour, ] Residing at Adarsha Nagar, ] Behind Laxminarayan Talkies, ] Solapur. ]...Appellants [Ori.Accused Nos.1 to 9] Vs. The State of Maharashtra ] (At the instance of Jail Road ] Police Station, Solapur). ]..Respondent .... Mr.A.P.Mundargi Senior Counsel with Mr.Amol Patankar Advocate for Appellants Mrs.V.R.Bhosale APP for Respondent .... CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND CORAM: F.I.REBELLO AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : APRIL 29, 2008 : APRIL 29, 2008 : APRIL 29, 2008 JUDGMENT (PER SMT.V.K.TAHILRAMANI,J.): JUDGMENT (PER SMT.V.K.TAHILRAMANI,J.): JUDGMENT (PER SMT.V.K.TAHILRAMANI,J.): 1. Through this Appeal, the Appellants-original accused Nos.1 to 9 have challenged the judgment and order dated 22nd November, 2005 passed by the learned Sessions Judge, Solapur in Sessions Case No. 111 of 2005. By the said judgment and order, the learned Sessions Judge convicted the Respondents-accused for the offences under Sections 147, 148, 452, 427, 302 read with Section 149 of IPC and Section 37(1)(a) read with Section 135 of -3- the Bombay Police Act and under Section 25 read with Section 7 of the Indian Arms Act. For the offence punishable under Section 148 of IPC, each of the appellant is sentenced to RI for one year and to pay a fine of Rs.300/- in default SI for one month. For the offence under Section 452 of IPC, they are sentenced to RI for two years and fine of Rs.500/- in default SI for three months. For the offence under Section 427, each of them was sentenced to imprisonment for one year and fine of Rs.300/- in default, SI for 15 days. For the offence under Section 302 read with Section 149, each of them is sentenced to life imprisonment and fine of Rs.2000/- in default SI for one year. No separate sentence was imposed for the offence under Section 147 of IPC, 37(1)(a) read with Section 135 of Bombay Police and under Section 25 read with Section 7 of the Indian Arms Act as the said offences are covered by the punishment imposed under other Sections as stated above. 2. The prosecution case briefly stated is as under: . P.W.4 Bharati Raju Mansawale is the wife of -4- deceased Raju Kisansing Mansawale. They were residing in the locality of Asha Nagar, MIDC Solapur. The Complainant P.W.10 Meena Baban Katap was also residing in the same locality. The accused persons frequently used to come to that area and hence, they were known to the witnesses. . In the night between 2.2.2005 and 3.2.2005 at 2.45 a.m. Complainant Meena heard a call given to her by accused Sidhu. She opened the window and saw accused Sidhu along with other 10 to 12 persons outside her house. All these persons proceeded towards the house of Raju Mansawale. Complainant Meena saw Raju Manaswale being dragged out from his house by the accused. At that time, Raju was shouting "Melo Melo." The accused took Raju to the electric pole near Chadar Factory, they threw Raju on the ground and they started beating him with the weapons in their hands. On seeing the incident, she contacted MIDC police from her mobile phone and informed the incident to police. After ten minutes, police arrived at the spot. Meantime, the accused fled away. On arrival of police, Meena along with her son went to the spot and saw Raju Mansawale lying in injured condition. There were -5- several injuries on his neck, shoulder, head and other parts of his body. She informed the police about the incident. Meanwhile, Raju was taken to the Civil Hospital Solapur where the Doctor declared him dead. The complaint of Meena came to be recorded. After completion of investigation, the charge sheet came to be filed against the accused. 3. The charge came to be framed against the accused under Sections 147, 148, 452, 427 and 302 r.w. 149 of IPC and under Section 135 of Bombay Police Act and also under Section 25 r.w. 3 of Arms Act. All the accused pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial. The learned Sessions Judge after considering the evidence adduced by the prosecution, has convicted the accused and sentenced them as stated in paragraph 1 above. Hence, this appeal. 4. We have heard Mr.A.P.Mundargi, the learned senior counsel for the appellants and the learned APP for the State. We have perused the evidence as well as judgment and order passed by the learned -6- Sessions Judge 5. So far as the involvement of the appellants in the incident is concerned, the prosecution has sought to prove the same through the ocular account of three eye witnesses i.e. P.W.4 Bharati Raju Mansawale who was the wife of Raju Mansawale (deceased), P.W.10 Meena Baban Katap who was residing near the house of the deceased and P.W.17 Janabai Hiranna Dhage who also resided near the house of deceased Raju. 6. P.W.4 Bharati has stated that on 3rd February, 2005 at about 2.30 a.m. she heard noise outside her house. Somebody was calling out to her husband. She also heard sound of knocking on the door of her house. Her husband put on the tubelight. Thereafter, he opened the door of the house. She further stated that as soon as her husband opened the door of the house, she saw accused no.1, accused no.2, accused no.6, Raja Nadgeri and one Sidhu. They were armed with weapons like axe, sura, Dandpatta, sticks etc. They were about 9 to 10 persons. All of them assaulted her husband with those weapons. P.W.4 -7- Bharati tried to intervene, however, she was threatened that they would also kill her. Thereafter, 3 to 4 of the assailants caught hold of her husband by his hands and legs and took him out of the house. They took him near electric pole near a factory and they started assaulting him. Within 5 to 10 minutes shouts of her husband stopped. Thereafter, all the assailants went away. When she went to the spot, she found that her husband was already dead. In the meantime, police arrived at the spot with wireless van. P.W.9 Meena Katap was with the police. Her husband was shifted to civil hospital, Solapur. This witness has implicated the accused nos.1, 2 and 6, Raja Nadgeri and one Sidhu. It is pertinent to note that appellant no.4 is Sidharam Nimbal and appellant no.7 is Sidharam Hitnali. This witness has not clearly stated that as to who is the said Sidhu whether appellant no.4 or appellant no.7. Moreover, there is no accused by name Raja Nadgeri as the name of accused no.5 is Raju Hulgeri. Thus, we can rely on the evidence of this witness only in respect of accused no.1, accused no.2 and accused no.6. -8- 7. We shall now deal with the evidence of P.W.10 Meena Katap who is also an eye witness to the incident. She has stated that accused no.7 Sidhram Hitnale came to her house. She saw him in the light of the bulb. There were 10 to 12 persons with him. Those 12 persons were accused no.1-Shiva Algundi, accused no.2-Basu Makase, accused no.3-Jagadish Kumasagi, accused no.5-Raju Hulgeri, accused no.6- Balu Makase, accused no.7-Sidhu Hitnali, accused no.8-Suryakant Gujale, accused no.9-Vijay Savant and one Sidhu Limbale. She has stated that accused no.1-Shiva was holding axe in his hand, accused no.2-Basu was holding sword in his hand, accused no.5- Raju was holding Dandpatta, accused no.6-Balu was holding axe and remaining accused persons were holding sticks. These persons dragged Raju from his house and they threw Raju on the ground near the electric pole beside the factory. The accused persons were assaulting Raju. On seeing the incident, she contacted the police on her mobile phone. Within minutes police arrived at the spot. However, the accused persons had already fled away from the spot. It may be stated here that during the cross-examination of this witness, -9- it has been brought on record that she has taken names of accused no.7-Sidhram, accused no.8-Suryakant and accused no.9-Vijay by way of improvement. None of the accused is named Sidhu Limbale. Nor has this witness identified accused no.4 to be Sidhu Limbale. On carefully going through the evidence of this witness, we find that we can safely rely upon the testimony of this witness in respect of implication of accused nos.1 to 3 and 5 and 6. 8. The last eye witness in the present case is P.W.17 Janabai Dhage. Janabai has stated that she was sleeping in her house. She heard some sound and she got up. She saw accused persons dragging Raju and assaulting Raju. She has stated that the assailants were accused no.1-Shiva, accused no.2-Basu, accused no.3-Jagya, accused no.9-Vijay, one Sidhu and some others. This witness has also not stated as to who is the said Sidhu, whether it is accused No.4 or accused No.7. Thus, so far as Janabai is concerned, we can safely rely on her evidence in respect of accused Nos. 1, 2, 3 and 9. -10- 9. Mr.Mundargi has submitted that the incident had taken place at night time and there is no reliable material to show that there was light at the scene of the incident. He submitted that in such case, it could not have been possible for the witnesses to have seen the assailants. In support of this contention, he has placed reliance on the cross-examination of P.W.10 Meena wherein it has been brought on record that her deposition regarding light is an improvement. However, Meena is not only the eye witness in the present case. There are two other eye witnesses. These witnesses have also deposed about the existence of light. Moreover, the spot panchnama and other evidence also shows that there was sufficient light for the witnesses to observe the assailants. Thereafter Mr.Mundargi submitted that Raju was dragged from his house to a spot near the factory and there was a huge tree where Raju was assaulted near the factory. Mr.Mundargi has submitted that Meena stated that she saw the incident near the factory from the roof of her house. Mr.Mundargi submitted that when there was a huge tree at the spot, it could not have been possible for Meena and other -11- witnesses to have witnessed the incident. In this connection, we may state that Meena resided next to the house of Raju. She has seen the accused persons dragging Raju from his house to the electric pole near the factory. Thereafter, she has seen the accused persons assaulting Raju from the roof of her house. Nothing is elicited in the cross-examination of Meena that she could not witness the incident as her vision was obstructed by the huge tree. Thus, we find no merit in this submission. 10. On perusal of the evidence of these three eye witnesses, we find that some minor omissions, contradictions and discrepancies have been brought on record but in our opinion none of them are such so as to shake the prosecution case in respect of accused nos.1, 2, 3, 5, 6 and 9. On going through the evidence of these three eye witnesses, we find that none of them has implicated accused no.8 Suryakant. We are of the opinion that the prosecution has not proved its case in respect of accused Nos.4 and 7. P.W.4 Bharati has implicated accused nos.1, 2, 5 and 6 and one Sidhu. P.W.10 -12- Meena has implicated accused nos. 1 to 3, 5 and 6 and P.W.17 Janabai has implicated accused nos. 1 to 3, 9 and one Sidhu. The identity of Sidhu is not cogently established by the prosecution. Thus from the evidence of these three eye witnesses, the prosecution has established that accused nos.1, 2, 3, 5, 6 and 9 took part in the incident. 11. The prosecution has also relied on recovery of blood stained clothes and weapons at the instance of the accused persons. However, as far as this aspect is concerned, we find that there is nothing to show that after the articles were seized, they came to be sealed. None of the panchas have mentioned any sealing nor have any witnesses clearly deposed about this aspect. In fact, the Investigating Officer also admits that the word "sealing" is not mentioned in the panchnama. Hence, we are not inclined to take this aspect into consideration and we are inclined to rely only on the ocular evidence of the three eye witnesses. We have already discussed the same in detail above. We have already observed that evidence of these three witnesses establishes the complicity of -13- accused nos.1, 2, 3, 5, 6 and 9. Hence, as far as their conviction and sentence is concerned, no interference is called for. However, there is no reliable material on record which brings out the complicity of the accused nos.4, 7 and 8. Hence, we are inclined to set aside the conviction and sentence imposed upon these appellants. 12. In the result, the conviction and sentence of appellant nos.4, 7 and 8 is set aside. They are acquitted of all the offences charged. They be released forthwith if not required in any other case. The conviction and sentence of appellant nos. 1 to 3, 5, 6 and 9 is confirmed. They are in jail. They shall serve out the sentence. 13. Appeal is partly allowed. [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.] [SMT.V.K.TAHILRAMANI,J.] [F.I.REBELLO, J.]