Cri. Appeal 421/1997 Judgment 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 421/1997 1. Devrao s/o Sahebrao Vir, Age : 45 years, Occupation : Agriculture, R/o Morewadi, Tq. Majalgaon, Dist. Beed. 2. Vachistha s/o Ashruba More, Age : 35 years, Occu. & R/o As above. 3. Nanabhau s/o Paraji Kale, Age : 37 years, Occu. & R/o As above. 4. Bhima s/o Paraji Kale, Age : 35 years, Occu. & R/o As above. 5. Sukhdev s/o Narayan More, Age : 45 years, Occu. & R/o As above. 6. Karbhari s/o Vithal Ghanawat, Age : 33 years, Occu. & R/o As above. Cri. Appeal 421/1997 Judgment 2 7. Bharat s/o Savalaram Kharate, Age : 29 years, Occu. & R/o As above. 8. Babasaheb s/o Paraji Kale, Age : 45 years, Occu. & R/o As above. 9. Vikram s/o Ashruba More, Age : 30 years, Occu. & R/o As above. 10. Mohan s/o Ashruba More, Age : 25 years, Occu. & R/o As above. 11. Shankar s/o Devrao Vir, Age : 20 years, Occu. & R/o As above. 12. Yashwant s/o Paraji Kale, Age : 35 years, Occu. & R/o As above. ...Appellants. versus The State of Maharashtra (Copy to be served on the Public Prosecutor, (High Court, Bench at Aurangabad). ..Respondent. .... Shri S.P. Katneshwarkar, Advocate for appellants. Shri K.M. Suryawanshi, A.P.P. for respondent. .... Cri. Appeal 421/1997 Judgment 3 CORAM : P.R. BORKAR, J. Date : 9 th December, 2009. ORAL JUDGMENT :- 1. This is an appeal preferred by original accused nos. 1, 2, 5 to 8, and 12 to 17 being aggrieved by the order of conviction and sentence passed by the learned II Addl. Sessions Judge, Beed in Sessions Case No. 146/1994 decided on 17/12/1997 whereby all the appellants other than accused no. 6 were convicted of offences punishable under sections 147, 148 and 324 r/w Section 149 of Indian Penal Code and each of appellant is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for three month and accused no.6 Bhima who is the appellant no. 4 is convicted of offence punishable u/s 304 Part II of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months. 2. Brief facts giving rise to this appeal as disclosed in the original Cri. Appeal 421/1997 Judgment 4 complaint lodged by P.W. 2 Rameshwar Baburao More are as follows. Deceased Karbhari Nagorao More who was uncle of P.W. 2 Rameshwar Baburao More, was Sarpanch of village Morewadi for about ten years. However, in the Gram Panchayat election which took place in February, 1992, panel headed by appellant no. 1 Devrao Sahebrao Vir was got elected and panel of deceased Karbhari Nagorao More was defeated. Appellant no. 1 Devrao Sahebrao Vir became Sarpanch, Appellant no.2 Vachistha Ashruba More became Deputy Sarpanch and Appellants nos. 3 to 6 became members of village Panchayat. Due to election rivalry, there were disputes and quarrels between the group led by deceased Karbhari Devrao More on one hand and group led by appellant no.1 on the other hand. There were criminal cases filed by each against other and cases were pending in Court. The above facts are well established by prosecution evidence and also admitted by the accused even in their defence evidence. 3. On 27/03/1994 at about 6.00 p. m. deceased Karbhari Nagorao More was returning to his land from village Morewadi with tea powder and Cri. Appeal 421/1997 Judgment 5 sugar. P.W. No.2 Rameshwar Baburao More was also going to his land and was following Karbhari More. When they came near bus stop of Morewadi village, from Kaudgaon side, the appellants came. On seeing Karbhari More, appellant no. 1 Devrao Sahebrao Vir gave him abuses and said that he has started troubles. However, Karbhari More said that he had not said anything and was silently going away. At that time, appellants rushed at Karbhari More and Karbhari More entered his cotton field. At that time, all the appellants ran after him. Karbhari More was caught and he was beaten with kicks and fists blows. Accused no.6 Bhima (appellant no.4) gave blow with stick on the head of Karbhari More. Karbhari More became unconscious. At that time, P.W. 2 Rameshwar, P.W. 10 Kontabai who is second wife of Karbhari, P.W. 4 Ganesh, P.W. 5 Bhagwat and others came there. When they were intervening, the appellants even injured them with sticks, but in spite of that said persons made request to the appellants and therefore, appellants went away abusing and threatening. Thereafter, Majalgaon Police came and they admitted Karbhari and other injured persons in the hospital. They were first taken to Cri. Appeal 421/1997 Judgment 6 the Primary Health Center at Kuppa. Karbhari had become unconscious and his condition was serious. He was taken to Civil hospital, Beed. Thereafter, Karbhari was shifted to the Govt. Medical College and Hospital, Aurangabad where he died on 10-04-1994. The police had registered offence of murder and rioting. Ultimately, they sent charge sheet to the Court. The charge was framed against 17 accused persons for committing offences punishable under Sections 147, 148, 324 read with Section 149 and 302 read with Section 149 of Indian Penal Code. The prosecution in all examined 11 witnesses. As the defence witnesses; two persons were examined. They are Dr. Kakade examined at Ex. 118 who proved injuries on some of the appellants, and accused no. 1 Devrao Sahebrao Vir who entered into witness box and examined himself on oath at Ex. 123. He proved his complaint lodged on 28-03-1994 at Ex. 124. The defence as disclosed in evidence of accused no.1 Devrao and which is adopted by all accused is that on 27-03-1994 at about 2.00 p. m., appellant Devrao along with accused no. 9 Sarjerao (since deceased), accused no.15 Mohan Ashruba, accused no. 6 Bhimrao, accused Cri. Appeal 421/1997 Judgment 7 no.11 Rambhau had gone to village Kaudgaon for ascertaining performance of wireless set newly installed at Kaudgaon and taking information regarding same. While returning at about 5.30 p. m. they came to Morewadi bus stop at about 6.00 p. m.. At that time, deceased Karbhari, P.W.2 Rameshwar Baburao More, Haribhau Nagorao More, P.W. 4 Ganesh Baburao More, P.W. 5 Bhagwat Baburao More, Shrimant Haribhau More, Baburao Nagorao More, Radhakisan More came there armed with sticks, stones and katti (sickle) and at that time, the deceased Karbhari said that this was the opportunity. He started abusing and thereafter they injured the accused persons named above. Thereafter, accused no. 2 Vachistha, accused no.13 Babasaheb Shivaji Sontakke came there. They intervened and stopped the quarrel. However, prosecution witnesses even abused those witnesses and thus complaint was lodged against eight persons. The learned Additional Sessions Judge, after considering the prosecution evidence and the defence evidence, has come to the conclusion that it is case of rioting and the accused did commit offence. However, he held accused Nos. 1, 2, 5 to 8 and 12 to 17 guilty of offences punishable under Sections 147, Cri. Appeal 421/1997 Judgment 8 148, 324 read with Section 149 of Indian Penal Code only and he acquitted them of other offences. Accused no.6 was acquitted of offence punishable u/s 302 read with Section 149 of Indian Penal Code and instead, he was convicted of offence punishable under Section 304 Part – II of Indian Penal Code. It is this order of conviction and sentence which is challenged in this appeal. 4. It is abundantly clear from evidence led that persons of both sides had sustained injuries. P.W. 9 Dr. Anant Kurwade was Medical Officer working at Primary Health Center, Kuppa. He had examined nine injured persons on the early evening hours of 28-03-1994. He examined deceased Karbhari at about 4.00 a. m. and found following four injuries. (i) Contusion over forehead right side size 2x2 inch red colour. (ii) Contusion over forehead left side, size 3x2 inch of red colour. (iii) Swelling around right eye bluish colour (iv) Fracture on frontal and parietal bones and head injury. The Doctor said that injuries were possible with hard and blunt objects like sticks. The injuries were caused within 24 hours. The injury Nos. 1 to 3 were Cri. Appeal 421/1997 Judgment 9 simple and injury No. 4 was grievous. He referred the patient to Civil Hospital for examination. P.W. 5 Bhagwat had 9 injuries which were as follows. (i) Incised would on occipital region (just behind the head) size 2x1/2x1/2 inch clean cut edges horizontal bleeding. (ii) Abrasion on left ear, size ½ x 1/8 inch. (iii) Contusion on left scapular region, size 4x1 inch red and oblique. (iv) Contusion on right scapular region, size 5x1 inch red and oblique. (v) Contusion over back right side, one was 3x1 inch and second was 2x1 inch red and oblique. (vi) Tenderness on right gluital region (right buttock). (vii) Abrasion on right back, 1/4x1/4 inch red in colour. (viii) Abrasion over left elbow, 1/8 x 1/8 inch red in colour. (ix) Abrasion over right leg, the size of one was 1/8 x 1/8 inch red in colour and the second was ½ x 1/8 inch red in colour. Injury No.1 was possible with axe. Injury Nos. 2 to 9 were possible with sticks. All injuries were caused within 24 hours. Injury No. 1 was caused by sharp object. Shrimant Haribhau More had sustained seven injuries which Cri. Appeal 421/1997 Judgment 10 were as follows. (i) C.L.W. Over right parietal region (right side of the head), size 1 x ¼ x ¼ inch, vertical bleeding. (ii) Abrasion over left parietal region, size 1/6 x 1/6 inch red in colour. (iii) Contusion over left shoulder 4 x 1 inch red and vertical. (iv) Contusion over left shoulder 4 x 1 inch red and vertical. (v) Contusion over left infra scapular region (left side of back), size 3 x 1 inch red in colour and vertical. (vi) C.L.W. Over right elbow region, size ½ x 1/6 x 1/6 inch, bleeding. (vii) Abrasion over right cheek, size 1 x 1/6 inch red in colour. These injuries were caused within 24 hours. Injury nos. 1 and 2 were possible with axe. Injury Nos. 3 to 7 were possible with sticks. P.W. No.2 Rameshwar Baburao More had sustained following injuries :- (i) C.L.W. over center of head, size 1 ½ x ½ inch x ¼ inch, bleeding and vertical. (ii) Contusion over left gluital region (left side of buttock) 2 x 1 inch, red in colour and oblique. (iii) Tenderness over left wrist. On examination of P.W. no.4 Ganesh Baburao More, the Doctor found two Cri. Appeal 421/1997 Judgment 11 C.L.Ws. one on left parietal region and another on center of head. There were two abrasions one on parietal region and one on left wrist. There were swelling on the right wrist and contusion on chest front side. P.W. No. 10 Kontabai Karbhari More had also C.L.W. on forehead of size 1 x ¼ x ¼ inch bleeding and vertical on forehead. She had tenderness on left shoulder. Dinkar Karbhari More had also swelling and tenderness over left ankle and abrasion over left index finger and tenderness over left shoulder. Radhakisan More had one contusion and tenderness on right elbow region. Sanjivani married daughter of Karbhari had contusion over right cheek, abrasion over right arm and tenderness over back. Medical certificates are proved at Ex. 64 to 72. The Doctor had brought medico legal register with him. He admitted that so far as the certificate of Karbhari More is concerned, it was issued on same day. He had also brought two X-ray plates which he had received on 20-06-1994 regarding fracture of frontal parietal bones which was injury no.4 caused to Karbhari. He also admitted that swelling to Karbhari may not be injury itself but it might be effect of injury no.3. The Doctor Cri. Appeal 421/1997 Judgment 12 denied that injury no.4 which was fracture of head of Karbhari was possible by pelting of stones. Then there is evidence of Dr. Arun Baburao More (P.W. 8) who had performed post mortem on the dead body of Karbhari More. He stated that Karbhari More died on 10-04-1994 while he was on duty in Govt. Medical College and Hospital, Aurangabad. There was no external injury on the dead body of Karbhari. On external examination, the Doctor found hemorrhage under the scalp on frontal left parietal, temporal left and occipital left and lenier fracture in left frontal, parietal and temporal bones. There was also internal cerebral haemorrhage both in occipital and frontal region. The Doctor gave cause of death as shock and haemorrhage due to fracture of skull in post mortem report Ex. 57. The Doctor stated in cross examination that if multiple stones are pelted, the said fractures of skull are possible. He stated that in one stroke of any hard and blunt substance such fractures are not possible. There were fractures on frontal, parietal and temporal area for which three strokes are necessary. He also stated in examination in chief that the internal injuries were possible by hard and blunt object like stick. It might be Cri. Appeal 421/1997 Judgment 13 noted that here in this case, the deceased was alive for about 14 days. The incident had occurred on 27-03-1994 and death had occurred on 10-04-1994. So external injuries like contusion might have been healed due to treatment given though internal fracture and haemorrhage caused, ultimately resulted in death. 5. On the other hand, D.W. 1 Dr. Kakade examined at Ex. 118 has stated that, the accused No.6 Bhimrao was examined by him on 28-03-1994 and he had found following three injuries. (i) C.L.W. on right forehead and frontal region size 2 ½ inch x ¼ inch bone deep, irregular in margin. (ii) Contusion on left elbow joint lateral aspect size ½ inch x ¼ inch irregular margin. (iii) Abrasion on left knee joint anterior aspect of size 1 ½ inch x ¼ inch irregular margin oblique in direction. They were caused within 24 hours and were simple in nature. Accused no.9 Sarjerao had one incised wound on left chest base of thumb palmer surface Cri. Appeal 421/1997 Judgment 14 1 ½ x ¼ inch x mussel deep caused within 12 hours by sharp object. Accused no. 15 Mohan Ashruba More had following three injuries. (i) C.L.W. on left parietal region of size 1 ½ inch x ¼ inch x bone deep, irregular in margin. (ii) Contused abrasion on left cheek of size ½ inch x ¼ inch irregular in margin. (iii) Contusion on left elbow joint posterior aspect of size ½ x ¼ inch irregular in margin. The injuries were caused within 24 hours with hard and blunt object. Nature of injuries were simple. Accused no. 11 Rambhau Rajaram Sawase had following four injuries. (i) C.L.W. on forehead and frontal middle region size 2 ½ inch x ¼ inch x bone deep, irregular in margin oblique in direction. (ii) C.L.W. on right forearm lower 1/3 rd anterior aspect size 1 ½ inch x ¼ inch, irregular in margin. (iii) Contusion on right scapular region size 1 ½ x ¼ inch irregular in Cri. Appeal 421/1997 Judgment 15 margin. (iv) Contusion on left scapular region of size 1 inch x ¼ inch irregular in margin. The injuries were caused within 24 hours by hard and blunt object. The injury certificates are proved at Exhibits 119 to 122. The Doctor stated that the injuries to accused nos. 6, 11 and 15 were possible with sticks and stones. The injuries to deceased Sarjerao accused no. 9 were possible with katti (sickle). So, it is abundantly clear that as per evidence led by both sides, some incident had taken place near the bus stop at Morewadi at about 6.00 p. m. in which four persons from the side of accused and eight persons were injured from the side of prosecution. It is also clear that the injuries to P.W. 5 Bhagwat was incised wound. Similarly, the injury to accused no. 9 Sarjerao was also incised wound. C.L.Ws. were caused to several persons. So, we have to find out who was aggressor party and whether it was a case of one party attacking other and other causing injuries to attackers in their defence or is it a case of free fight. If we see the case of defence as disclosed by accused no. 1 Cri. Appeal 421/1997 Judgment 16 Devrao at Ex. 123 which is deposition on oath by accused person; according to him, on the date of incident they were returning from Kaudgaon and at that time, deceased Karbhari and other seven persons were armed with Katti, stones and sticks and they attacked without any reason whereas as per the evidence of prosecution witnesses P.W.2 Rameshwar, P.W. 4 Ganesh, P.W. 5 Bhagwat and P.W. 10 Kontabai, Rameshwar was returning to his village with sugar, tea powder as harvesting of jawar was going on in his field, P.W.2 Rameshwar was following Karbhari and at that time, the accused persons came from Kaudgaon and on seeing Karbhari attacking, Karbhari rushed to his cotton field which was by the side of the road to save his life but the accused persons went there and beat him. It is argued before this Court that there were no blood stains or tea powder, sugar or any bag found at the place of incident. The spot panchanama is proved by P.W. 1 Subhash Dambe at Ex. 43. The said spot panchanama shows place near Morewadi bus stop. It also shows that at the distance of 500 paces, there was cattle shed of Karbhari while on southern side of it, there is cart road but neither on that cart road nor near bus stop any Cri. Appeal 421/1997 Judgment 17 signs of violence were found. The theory of alleged pelting of stones does not find any support. Stones pelted and stones which are naturally by the side of kachha road can easily be distinguished. So, the spot panchanama does not help us. It may be noted that P.W. 2 Rameshwar has shown the spot. 6. P.W. 2 Rameshwar examined at Ex. 45 has mainly deposed as per the complaint referred to above which he has proved at Ex. 46. In cross examination, he admitted that village Morewadi is under village Kaudgaon and wireless set was installed at Kaudgaon Gram panchayat office. He stated that jawar threshing was going on in the field of Karbhari at the relevant time and that place was 150 to 200 feet from road on western side. Cotton harvesting was also going on. Cotton crop was standing in the field of Karbhari. If we believe the word of Rameshwar, it may be noted that the accused persons mainly wanted to attack Karbhari and merely because Rameshwar and others intervened, they were also injured. P.W. 2 Rameshwar specifically admitted in his cross examination that all the accused had come from Kaudgaon side, but according to him, they were sitting and Rameshwar had seen sticks and axe with Cri. Appeal 421/1997 Judgment 18 all accused sitting on the road, but in spite of that he did not alaram Karbhari who was 18 to 20 feet from him nor he felt to go back to the village and call other persons. It is stated that they were abusing for one or two minutes. Then Karbhari ran to the distance of 200 feet inside field where accused chased and caught him. 7. Rameshwar did not feel to call other persons when he saw other persons chasing Karbhari. He followed accused persons to intervene. According to him, Jadubai, Sanjivani and Kontabai came from farm house to the spot and they were also shouting. The witness denied that anybody tried to injure accused persons. He did say that some of them tried to catch hold of accused but none of the accused was beaten. According to Rameshwar, none of the prosecution party even abused the accused though the accused were abusing. Thus the prosecution witnesses have not explained injuries on the person of accused. In para 11, Rameshwar specifically stated that when he was following Karbhari and they were near bus stop on the road, at that time all accused persons had come there from Kaudgaon road. That clearly supports Cri. Appeal 421/1997 Judgment 19 the case of accused that they were returning from Kaudgaon and that falsified his earlier say that accused were sitting on the road awaiting for Karbhari. His story that the accused were armed with katti (sickle), stick and they were waiting at road also does not appear to be true. 8. The omissions were brought on record in the evidence of Rameshwar that the witness has not stated in his complaint Ex. 46 that the accused had sticks and axes and they tried to assault deceased Karbhari. He also did not state in his complaint that the accused had chased Karbhari into his field. He also did not state that it was accused no.2 who given him stick blow on the left side waist and right shoulder. 9. P.W. 4 Ganesh and P.W. 5 Bhagwat were the persons who had come to the bus stop on hearing shouts. Both have stated that they were in the village and heard shouts and therefore, went to the bus stop. As per P.W. 4 Ganesh, all the accused were beating Karbhari. P.W. 2 Rameshwar also saw accused no.6 giving stick blow to Karbhari. Accused nos. 14 and 15 injured him with axes whereas accused no. 17 gave him blow with stick on back and at Cri. Appeal 421/1997 Judgment 20 that time, Sanjivani, Kontabai and Jadubai came to the spot and they were also injured. The omission was brought on record that this witness has not stated before police that he heard shouts from the side of bus stop. Contradiction was specifically brought on record that he has stated that he was in village and learnt about incident at 6.00 p. m.. If we see the distance as narrated by prosecution witnesses, it was more than 500 feet and it is doubtful whether P.W. 4 Ganesh and P.W. 5 Bhagwat would have been in position to see injuries caused to Bhagwat which were in all four in number. The witness admitted in para 8 of his cross examination that he had not stated before police that accused no. 8 and 16 had beaten Bhagwat. He has also in para 10 admitted specifically that he stated before police that he learnt about beating deceased Karbhari and complainant Rameshwar by all accused with sticks and axes in village and then he went to the spot of incident along with other persons. He specifically stated that said statement before police was true. So the possibility of prosecution witnesses P.W. 4 Ganesh, Radhakisan, Shrimant and P.W. 5 Bhagwat going to the bus stop after hearing about incident and Cri. Appeal 421/1997 Judgment 21 then taking part in beating the accused will have to be borne in mind. The admission in para 10 in cross examination of P.W. 4 Ganesh goes a long way. P.W. 5 Bhagwat More stated at Exhibit 50 that at 6.00 p. m. when the incident had occurred near bus stop, he was in the village. He heard shouts from the side of bus stop and therefore, along with Radhakisan, Shrimant and P.W.4 Ganesh went to the spot. All the accused / appellants were present at the bus stop. Similarly, complainant P.W. 2 Rameshwar, deceased Karbhari were also present at the bus stop. Thereafter, complainant Rameshwar and deceased Karbhari ran in the cotton crop and all accused followed them. P.W. 5 Bhagwat and others also followed them. Sanjivani, Jadubai and P.W. 10 Kontabai also came there. The accused were beating deceased Karbhari and P.W. 2 Rameshwar. They went to rescue but they