1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.682 OF 2008 Dagadu Chavdas Barhate, Age 57 years, Occu.Service, R/o Nashirabad, Taluka and District Jalgaon ..APPELLANT (Orig.Accused No.8) Versus The State of Maharashtra ..RESPONDENT Mr N.B.Suryawanshi, Advocate holding for Mr Swapnil S. Patil, Advocate for appellant Mr N.R.Shaikh, Assistant Public Prosecutor for respondent-State CRIMINAL APPLICATION NO.2246 OF 2009 The State of Maharashtra through Police Station Officer, Police Station, Nashirabad, District Jalgaon ..APPELLANT (Orig. Complainant) Versus 1. Ankush Bharat Gaikwad, Age 28 years, 2. Shivdas Uttam Bhil, Age 25 years 3. Shantabai w/o Shivdas Patil, Age 20 years 4. Santosh Deosing Bhil, Age 22 years 5. Dagadu Chavdas Barhate, Age 56 years 2 6. Yuvraj Bhart Gaikwad, Age 26 years All Resident of Beli, Taluka and Dist.Jalgaon ..RESPONDENTS (Orig.Accused) Mr N.R.Shaikh, Assistant Public Prosecutor for applicant Smt. S.S.Jadhav, Advocate for respondent No.4 Mr.N.B.Suryawanshi, Advocate holding for Mr. S.S.Patil, Advocate for respondent No.5 CRIMINAL APPEAL NO.121 OF 2009 Yuvraj s/o Bharat Gaikwad, Age 26 years, R/o Beli, Taluka and Dist.Jalgaon, At present Nashik Central Jail Nashik ..APPELLANT (Orig.Accused) Versus The Stateof Maharashtra ..RESPONDENT Ms.Maya R.Jamdade, Advocate (appointed) for appellant Mr N.R.Shaikh, Assistant Public Prosecutor for respondent-State CRIMINAL APPEAL NO.122 OF 2009 Ankush s/o Bharat Gaikwad, Age 30 years, Occu.Nil, At present R/o Central Prison, Nashik, District Nashik ..APPELLANT (Orig.Accused) Versus The State of Maharashtra Through Police Station, Nashikrabad District Jalgaon ..RESPONDENT Mr S.S.Chapalgaonkar, Advocate for appellant Mr N.R.Shaikh, Assistant Public Prosecutor for respondent-State 3 CRIMINAL REVISION APPLICATION NO.21 OF 2009 Tushar s/o Digambar Chaudhari, Age 23 years, Occu.Agriculture, R/o Beli, Taluka and Dist.Jalgaon .. PETITIONER (Orig.Complainant) Versus 1. Shantabai w/o Shivdas Bhil, Age 20 years, Occu.Housewife, R/o Beli, Taluka and Dist.Jalgaon 2. The State of Maharashtra ..RESPONDENTS (No.1 original accused No.3) Mr H.F.Pawar, Advocate for petitioner Mr.N.R.Shaikh, Assistant Public Prosecutor for respondent-State CRIMINAL APPEAL NO.311 OF 2009 1. Shivdas s/o Uttam Bhil, Age 27 years, Occu.Labour 2. Santosh s/o Deosing Bhil, Age 24 years, Occu.Labour, Both r/o Beli, Taluka and Dist.Jalgaon ..APPELLANTS Versus The State of Maharashtra ..RESPONDENT Smt.S.S.Jadhav, Advocate for appellants Mr N.R.Shaikh, Assistant Public Prosecutor for respondent-State 4 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE OF RESERVING THE JUDGMENT : 16.11.2010 DATE OF PRONOUNCING THE JUDGMENT : 18.11.2010 JUDGMENT (PER P.V.HARDAS, J.) 1. Criminal Appeal No.682 of 2008 has been filed by original accused No.5 while Criminal Revision Application No.21 of 2009 has been filed by the complainant questioning the acquittal of the respondent namely original accused No.3 for offences with which she was charged. Criminal Appeal No.121 of 2009 has been filed by original accused No.4 Yuvraj. Criminal Appeal No.122 of 2009 has been filed by original accused No.1 Ankush while Criminal Appeal No.311 of 2009 has been filed by original accused No.2 Shivdas and original accused No.4 Santosh. Since all these appeals arise from the judgment of the trial Court, all these appeals are being decided by this common judgment. 2. Original accused No.1 Ankush, No.2 Shivdas, No.4 Santosh, No.5 Dagdu and No.6 Yuvraj stand convicted for offences punishable under Section 147, 148, 302 read with section 149 of the Indian Penal Code and each of the accused is sentenced to imprisonment for life and to pay fine of Rs.1,000/- each, in default of which to undergo further rigorous imprisonment for one month. 5 No substantive sentence is awarded to the aforesaid accused for offence punishable under Sections 147, 148 and under section 323 read with section 149 of the Indian Penal Code and under Section 37 (1) (3) punishable under section 135 of the Bombay Police Act. Accused No.1 Ankush in addition stands convicted for an offence punishable under Section 326 of the Indian Penal Code and is sentenced to rigorous imprisonment for two years and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for ten days. Original accused No.3 Shantabai stands convicted for an offence punishable under Section 323 of the Indian Penal Code and sentenced to rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default of which to undergo further rigorous imprisonment for ten days, by the Additional Sessions Judge, Jalgaon, by judgment dated 14.11.2008, in Sessions Case No.9 of 2007. 3. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus: P.W.19 Nishikant Vishvakar, an A.P.I. who was in charge of Police Station, Nashirabad on 2.6.2006, received telephonic message from A.S.I. Wankhede that one Digambar Ramdas Choudhari, P.W.9 Sugrabee, P.W.7 Tushar, and P.W.10 Laxman had arrived at the Police Station with injuries. The condition of 6 Digambar and Sugrabee was serious. P.W.19 A.P.I. Vishvakar informed A.S.I. Wankhede to refer the injured to the hospital and after some time received message from A.P.I. Wankhede that Digambar had been pronounced dead and his body had been referred to the Civil Hospital, Jalgaon for post mortem. P.W.19 Vishvakar immediately returned to the Police Station and noticed Tushar present in the Police Station. Complaint of P.W.7 Tushar came to be recorded by PW.19 A.P.I. Vishvakar at Exh.37. On the basis of the said complaint offence vide Crime No.68 of 2006 came to be registered. After registration of the offence, P.W.19 Vishvakar called P.W.18 P.S.I. Choudhari and Head Constable Baviskar and other Police Constables and directed them to search the accused. Accordingly, an entry in the station diary came to be taken and the Police party proceeded in search of the accused. P.W.19 A.P.I. Vishvakar came to the Civil Hospital at Jalgaon and in the presence of panchas drew the inquest panchnama of the dead body at Exh.22. The dead body was handed over to Police Constable Marathe for seizure of the clothes of deceased. Post mortem on the dead body of deceased Digambar was performed by P.W.11 Dr.Jitendra Koli. On external examination he found the following injures: (i). Fresh penetrating stab wound below and lateral to the left nipple, slit shape with two acute angles on the left chest on antero-lateral 7 position. Wound of entrance size was 2 x 2 cms. Depth 10 cm with sharp margins. Direction of said wound was from above downwards on the left antero-lateral thoracic wall passes through 5th intercostal space and penetrating to the middle and lower lobe left lung. Also there was heamothorac (left) about 400 ml. (ii) Penetrating stab wound slit-shaped, entry with clean cut margin at right angle and below and lateral to 10th rib. Size is 2 x 2 cm and length 5 cm with laceration to large bowl seen. (iii) Penetrating stab wound about 3 cms below the second wound with clean cut margins, bluish in colour about 2 x 2 cm & 4 cms. in depth, direction at right angble with the body wall with laceration to large bowel with intra abdominal heamorrahge about 100 ml During internal examination he noticed laceration on the left lung at middle and lower lobe with large hemothorax about 100 ml. Pericardium of the heart was hemorrhagic and the left chamber of the heart was empty. Right chamber of the heart contained about 100 to 200 ml of blood. The peritoneum and the cavity were hemorrhagic. He opined that cause of death was shock due to grievous incise stab wound to the vital organs of the body leading to large hemothorax in the left lung. The post mortem report is at Exh.58. 8 4. P.W.19 A.P.I. Vishvakar proceeded to village Beli i.e. to the scene of the offence. In the presence of panchas the scene of the offence panchnama was drawn and sample of ordinary mud and blood mixed mud was drawn. Two bamboo sticks came to be seized from the house of accused Shivdas. The aforesaid articles came to be seized under the scene of the offence panchnama at Exh.33. The A.P.I. Vishvakar returned back to the Police Station and in the meantime the Police party which had gone in search of the accused produced the accused in the police station. P.W.18 P.S.I. Choudhari produced accused Shantabai and Santosh and accordingly, accused Shantabai and Santosh came to be arrested under arrest panchnama at Exhs.92 and 93. The blood stained shirt of Santosh came to be seized vide seizure memo at Exh.44 in the presence of the panch witnesses. Police Constable Baviskar and Police Head Constable P.W.17 Aba Mahajan produced accused Ankush, Dagdu and Shivdas. The aforesaid accused came to be arrested under arrest panchnama at Exh.94, 95 and 96. Clothes on the person of accused Ankush which were found to be blood stained, came to be seized in the presence of panchas vide seizure memo at Exh.46. During custodial interrogation accused No.5 Dagdu disclosed his readiness to produce the clothes which were kept in his house. Accused Dagdu accordingly produced the clothes which came to be seized under seizure memo. P.W.19 A.P.I. Vishvakar returned to the Civil 9 Hospital and sought opinion of the Medical Officer in respect of condition of P.W.9 Sugrabee for giving her statement. On the Medical Officer certifying that P.W.9 Sugrabee was in a condition to give her statement, he recorded the statement of Sugrabee. Clothes which were on the person of Sugrabee came to be seized under seizure memo at Exh.97. Statements of witnesses came to be recorded and blood samples of the accused came to be drawn by the Medical Officer. On the next day, during custodial interrogation accused No.1 Ankush expressed his willingness to point out the place where the knife was hidden. Accordingly, the memorandum of accused Ankush came to be recorded in the presence of panchas at Exh.30. Pursuant thereto, accused Ankush led the Police and the panchas to village Beli and from the neem tree in the land of one Shashikant Patil produced a knife, which was found to be blood stained. The knife came to be seized in the presence of panchas under seizure memo at Exh.31. Since P.W.19 A.P.I. Vishvakar proceeded on leave, the investigation came to be handed over to P.S.I. Choudhari. Thereafter, on 4.7.2006 the investigation was entrusted to P.W.19 A.P.I. Vishvakar. Meanwhile P.W.16 A.S.I. Wankhede had seized the clothes of deceased vide seizure memo at Exh.86. Statements of witnesses came to be recorded and the seized property was referred to the Chemical Analyzer. The reports of the Chemical Analyzer are at Exhs.98,99,100 and 101. Accused Yuvraj was 10 absconding and A.P.I. Shirsath arrested the absconding Yuvraj. Further to the completion of investigation a charge-sheet against the accused came to be submitted. 5. Trial Court at Exh.9 framed charge against the accused for offence punishable under Section 302 read with section 149, section 307 read with sec.149, section 147 read with sec.149, section 148 read with sec.149 and under Section 135 of the Bombay Police Act. All the accused denied their guilt and claimed to be tried. 6. In order to appreciate and deal effectively with the submissions advanced before us by the learned Counsel for the appellants, the complainant and the learned Assistant Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses first. Prosecution unfolds its case through the testimony of P.W.7 Tushar, son of deceased Digambar and the first informant in this case. P.W.7 Tushar states that he along with his parents and brother was residing at village Beli. He claims to know all the accused. He further states that at the time of the incident his father Digambar was Sarpanch of the Grampanchayat of village Beli. He further states that on account of the election of the Sarpanch, there was dispute between Digambar and accused No.5 Dagdu since prior to 7-8 years. He 11 has further admitted that his father used to go to the house of P.W.9 Sugrabee, who was residing in the Bhilati area of village Beli. On account of the frequent visits of Digambar to the house of Sugrabee, the residents of the locality were suspecting illicit relations between Digambar and Sugrabee. He further states that on 31.5.2006 a quarrel had ensued between his family members and one Vijay Shivram Wagh and accused Shantabai on account of cutting of sticks from the land of P.W.7 Tushar. In respect of the incident, which occurred on 2.6.2006 at 8.30 a.m., he states that he was going towards the house of one Bhagwat Bhangale for demanding charges for providing fodder. While he was passing the house of accused Shivdas, accused No.3 Shantabai, who was standing in front of her house started abusing P.W.7 Tushar. Accused No.3 Shantabai thereafter caught the collar of the shirt of Tushar and slapped him on his ears. Immediately, from the house of Shivdas accused No.6 Yuvraj, accused No.4 Santosh, accused No.1 Ankush, accused No.5 Dagdu and accused No.2 Shivdas came towards him. Out of the accused, accused Shivdas and accused Yuvraj were armed with sticks. Accused Ankush, accused Yuvraj and accused Santosh and accused Dagdu started assaulting P.W.7 Tushar by giving kick and fist blows. On seeing Tushar being assaulted by the accused, his father deceased Digambar came there and enquired from the accused as to why they were assaulting P.W.7 Tushar. 12 The accused thereafter started assaulting Digambar and accused No.1 Ankush went towards his house and returned with an open knife in his hand. Accused No.5 Dagdu had also gone to the house of accused Ankush and also returned to the scene of the incident. Accused Yuvraj, accused Shivdas, accused Dagdu and accused Santosh held the hands and legs of Digambar while accused Ankush stabbed Digambar on the left side of his chest with a knife. Upon receiving the injuries Digambar cried out and upon hearing the cry of Digambar P.W.9 Sugrabee arrived at the scene. Sugrabee tried to pacify the quarrel and while she was attempting to do so accused No.1 Ankush dealt two blows of knife on the stomach of Digambar. According to P.W.7 Tushar since Sugrabee was attempting to pacify the quarrel he also stabbed Sugrabee on the left side of her chest. Thereafter P.W.10 Laxman uncle of Digambar arrived on the scene also in order to pacify the quarrel. The accused also assaulted Laxman by kick and fist blows. Tushar also claimed that he was assaulted by fist and kick blows and one blow of stick was also given on his head. He states that Digambar was immediately taken to the hospital and Digambar succumbed to the injuries while in the way to the hospital. P.W.7 Tushar has named certain persons, who alleged to have witnessed the incident apart from the witnesses examined by the prosecution. He then states that he along with Sugrabee, Laxman were referred to the Civil Hospital, Jalgaon. 13 Prior to proceeding to the civil hospital, the first information report at Exh.37 came to be lodged by P.W.7 Tushar. He has identified the clothes worn by Digambar as well as the clothes worn by the accused. He has produced the document at Exh.38 in respect of the objection taken by accused No.5 Dagdu regarding the election of deceased Digambar. He claims that the objection was decided in favour of Digamber. He also claims that the appeal filed against the said decision came to be dismissed and the decision in appeal is at Exh.39. 7. In cross-examination he has admitted that Sugrabee used to work as labour in his land as well as in the land of others and his father used to go to the house of Sugrabee in order to settle the labour charges. He has denied that his father used to go to the house of Sugrabee everyday in the morning and evening. He has also denied the suggestion that his father Digambar was addicted to liquor and that Sugrabee was indulged in trade of illicit liquor. He has also denied the suggestion that Digambar used to sleep at the house of Sugrabee after drinking liquor. He has admitted that there are 3 to 4 pathways for reaching the house of Sugrabee from the scene of the incident. He has also admitted as correct that with the assistance of accused No.1 Ankush his father had been elected as Deputy Sarpanch. He has also admitted that prior to the election of Digambar as a 14 Sarpanch, accused No.5 Dagdu had been elected Sarpanch of the village. He was asked to give any reason as to why name of accused No.4 Santosh was not stated by him in the first information report and he could not ascribe any reason for omitting name of accused No.4. He has then admitted, “ I cannot say where my father was on the previous day of incident at evening time”. He has denied the suggestion that on the day earlier to the incident his father had stayed at the house of Sugrabee during the night and on the next day i.e. on 2.6.2006 dead body of Digambar was seen lying in front of the house of Sugrabee in Bhilati area. 8. In further cross-examination on behalf of accused No.5 he has admitted that he could not state definitely as to the nature of dispute between accused Dagdu and his father Digambar. He has also admitted that when accused Shantabai initially quarreled with him on the day of the incident, he was passing by road and Shantabai was standing in front of her house. He had admitted that accused Ankush, Yuvraj, Santosh and Dagdu arrived at the scene from the house of accused Shivdas. He has also admitted that as Shantabai had assaulted him, therefore, the four accused had arrived there. He could not explain as to why he had not stated in his first information report that Dagdu had initially come to the scene of the offence, thereafter had gone along with 15 Ankush and had returned with Ankush when Ankush had brought a knife. He has admitted that when Dagdu and Ankush returned to the scene of the offence P.W.10 Laxman was present at the scene. He has also admitted that after his father was stabbed and hearing his cry P.W.9 Sugrabee had arrived at the scene. He has admitted that house of Sugrabee is at a distance of five minutes walk from the house of Shivdas. He has also clarified that accused Dagdu had held the hands of Digambar from back. He has also admitted that Digambar tried to extricate himself but could not succeed. He has also admitted in cross-examination that before the first blow was delivered to Digambar he had been held by the accused. 9. Prosecution has examined P.W.9 Sugrabee an injured witness. P.W.9 Sugrabee states that she resides in the Bhilati locality of village Beli and was knowing deceased Digambar. She has admitted that she used to go to the field of Digambar to work as a labour. She has further stated that the accused were telling her not to permit Digambar to come to her house as name of Sugrabee was tarnished. She states that she had accordingly informed Digambar but Digambar persisted in coming to her house. She states that in May 2006 accused Shantabai and one Vijay had stolen sticks from the land of Digambar and accordingly quarrel had ensued between them. On 2.6.2006 at about 8.30 16 a.m. she was present in her courtyard and had seen the quarrel in front of the house of accused Shantabai. She accordingly reached the scene of the offence. She states that on reaching the scene of the offence she had seen accused Shantabai assaulting P.W.7 Tushar. She states that thereafter accused Ankush, accused Shivdas, accused Yuvraj, accused Santosh and accused Dagdu arrived at the scene from the house of accused Shivdas. Accused Yuvraj and accused Shivdas were armed with sticks. All the accused started assaulting Tushar. At that time father of Tushar i.e. Digambar arrived at the scene. The accused caught Digambar and accused Ankush went to his house and brought a knife from his house. She states that accused Shivdas, accused Yuvraj, accused Santosh, accused Shantabai and accused Dagdu had held the hands, hair and legs of Digambar while accused Ankush stabbed Digambar on the left side chest with a knife. She states that thereafter Ankush had dealt a knife blow on her left side chest. She states that she received a bleeding injury and thereafter the accused fled from the scene of the offence. She then states about going to Police Station, Nashirabad and then being referred to the Government Hospital at Nashirabad and thereafter to the Civil Hospital at Jalgaon. She has identified her clothes, which she was wearing at the time of the incident as well as the clothes worn by the accused. In cross- examination she has admitted to have stated portion marked “A” 17 which is to the effect : “ Ankush Gaikwad also inflicted injury on my stomach with the knife which he was holding and attempted to kill me.” She has denied that the injuries sustained by her were self- inflicted injuries. She has denied that she was indulged in trade of illicit liquor. She has denied the suggestion that as Ankush Bhil while he was Deputy Sarpanch had piloted a resolution against her as she was indulged in illicit liquor and therefore, she had a grudge against Ankush. In further cross-examination on behalf of accused No.5 she has denied the suggestion that accused No.5 had made several attempts including lodging complaints against her in respect of trade in illicit liquor. She has admitted in cross- examination that when she had gone to the scene of the offence initially four accused were present and thereafter accused No.5 and the other accused had arrived at the scene within five minutes of her arrival. The attempt obviously was to show that accused Dagdu had not gone to the house of Ankush. However, since this question was asked in the cross-examination an omission to that effect would not be permissible. She has denied the suggestion that accused No.5 was not present at the scene of the offence. 18 10. P.W.10 Laxman uncle of deceased Digambar also states about the strained relations between Digambar and accused No.5 and the other accused. In respect of the incident he states that on 2.6.2006 at 8.30 a.m. he was proceeding to Nashirabad and had witnessed a quarrel between accused Shantabai and P.W.7 Tushar and had accordingly reached the scene of the incident to enquire as to what the matter was. He states that he had seen Shantabai catching the collar of shirt of Tushar and assaulting Tushar. He states that from the house of Shivdas accused Shivdas, Santosh, Yuvraj, Ankush and Dagdu came to the scene of the offence. Accused Yuvraj and Shivdas were armed with sticks. The accused assaulted Tushar by giving him fist and kick blows. At that time deceased Digambar came running to the scene of the incident. Accused Ankush and Dagdu ran towards the house of Ankush and returned back with Ankush holding an open knife in his hand. The accused caught the hands and legs of deceased Digambar while accused Ankush stabbed Digambar on the left side chest with a knife. He states that Digambar cried out loudly. Then he and Sugrabee rushed towards Digambar in order to rescue him and at that time accused Ankush stabbed Digambar on his chest twice. While he and Sugrabee were trying to pacify, accused Ankush stabbed Sugrabee on the left side chest. Laxman states that he was also assaulted with fists on his chest 19 and abdomen. The accused thereafter fled from the scene of the incident. In cross-examination he has admitted that since four to five years Digambar was visiting the house of Sugrabee. He has denied the suggestion that Digambar was lying dead in front of the house of Sugrabee since the previous night. He has denied the suggestion that he was not present at the scene of the offence. In cross-examination on behalf of accused No.5, he has admitted as true that he had filed an application to the Election Officer for deleting the name of accused Dagdu from the voters list of village Beli. He