1 cri.app.626 of 2001.sxw mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.626 OF 2001 State of Maharashtra ) ..APPELLANT Vs. 1.Haribhau alias Bhausaheb Dinkar ) 2.Raju alias Rajendra Bhiwrao ) Shirawale ) 3.Vitthal Baburao Shinde ) 4.Subhash Raghunath Pawar ) ..RESPONDENTS (Org. Accd. Nos.3 to 6) WITH CRIMINAL APPEAL NO. 540 OF 2007 Maruti Ramchandra Gholap ) .. Appellant (Org. Accd. No.2) Vs. The State of Maharashtra ) .. Respondent WITH 2 cri.app.626 of 2001.sxw CRIMINAL APPEAL NO. 517 OF 2001 Shri Subhash Raghunath Pawar ) .. Appellant (Org. Accd. No.6) Vs. The State of Maharshtra ) .. Respondent WITH CRIMINAL APPEAL NO. 567 OF 2001 Pandharinath Devpa Gholap ) .. Appellant (Org.Accd. No.1) Vs. The State of Maharashtra ) .. Respondent Dr. F.R. Shaikh, APP for appellant – State in Criminal Appeal No. 626 of 2001 and for respondent-State in Cri.Appeal Nos.540/07, 517/01 and 567/01. Mr. Abhaykumar Apte for appellant in Cri.Appeal No. 540/07. Mr. S. S. Kulkarni for appellant in Cri. Appeal No.517/01 and for respondent no.4 in Cri. Appeal No. 626/01. Mr. K. S. Patil for appellant in Cri. Appeal No. 567/01. Mr. S.V. Kotwal i/by Mr. M. S. Mohite for respondent nos.1 and 2 in Cri. Appeal No. 626/01. 3 cri.app.626 of 2001.sxw CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON : 14TH JANUARY, 2011 PRONOUNCED ON: 02ND FEBRUARY, 2011 JUDGMENT (PER B.H. MARLAPALLE, J.): 1. In Sessions Case No.72 of 2000 in all six accused came to be tried by the learned VIIIth Additional Sessions Judge, Pune, for the offences punishable under Sections 147, 148, 149, 302, 307 and alternatively under Sections 302 and 307 read with Section 34 of the Indian Penal Code. By the judgment and order dated 18th May, 2001 accused Nos. 1 and 2 came to be convicted for the offences punishable unjder Section 302 read with Section 34 and Section 307 read with Section 34 of I.P.C. They have been sentenced to suffer imprisonment for life on the first charge and R.I. For 7 years for the second charge. Accused No.6 came to be sentenced along with accused Nos. 1 and 2 for the offence punishable under Section 307 read with Section 34 of I.P.C. 4 cri.app.626 of 2001.sxw and he has been sentenced to suffer R.I. for 7 years and to pay a fine of Rs.4,000/-. All of them were given benefit of set-off under Section 428 of Cr.P.C. However, accused Nos. 3, 4 and 5 came to be acquitted for the offences punishable under Sections 147, 148, 149, 304 and 307 and alternatively under Section 302 and Section 307 each read with Section 34 of I.P.C. 2. Criminal Appeal No.567 of 2001 has been filed by accused No.1, Criminal Appeal No.540 of 2007 has been field by accused No.2, Criminal Appeal No.517 of 2001 has been filed by accused No.6 and Criminal Appeal No.626 of 2001 has been filed by the State Government against the acquittal of accused Nos. 3 to 6 for the offences punishable under Section 302, 307, 326, 143, 147, 148 and 149 of I.P.C. 3. As all the Appeals arise from the same order of conviction and acquittal, they have been heard together and are being disposed off by this common judgment. 4. As per the prosecution case the complainant and accused party (accused Nos.1 and 2) are from the same original Gholap family 5 cri.app.626 of 2001.sxw and on account of village Panchayat elections the Gholap families was fraction ridden. From 25th April, 1999 to 27th April, 1999 there were wedding ceremonies in these families of different branches at village Kari which is about 12 to 16 Kms., away from Bhor town in Pune District. D.W1-Balasaheb Ramchandra Gholap, uncle of accused Nos. 1 and 2 as well as deceased Ankush was the the Sarpanch of village Kari at the relevant time. On 26th April, 1999 the wedding barat in the family of Namdeo Gholap was taken out in the village and during that procession deceased Ankush was assaulted on his head by the brother of accused No. 1 i.e. Vitthal Deoba Gholap and on that count Ankush with the help of P.W.1 and P.W. 7 had registered a complaint with the Police Station at Bhor in the same night. The daughter of Hanumant Maruti Gholap, who is the brother-in-law of P.W.7- Rajendra Gholap was to get married on 27th April, 1999 and, therefore, at about 8.00 a.m. on that day, deceased Ankush Gholap, Dnyanoba Ravba Gholap, Rajendra Gholap (P.W.7) and Shivaji Sanas (P.W.9) left village Kari to go to Bhor in the jeep driven by Sopan Dagadu Gholap (P.W.1) for shopping required for the wedding ceremony. They purchased the goods and had started the return journey. However, when the jeep reached at Navi Ali near the shop of one Shri 6 cri.app.626 of 2001.sxw Mhasawade, Dnyanoba Gholap asked Sopan (P.W.1) to stop the jeep as he wanted to purchase coriander and, therefore, all of them stopped near the shop of Mhasawade. Dnyanoba got down from the jeep and went to the vegetable market. After some time while the rest of them were waiting in the jeep the accused party reached there on two different motor bikes. On the first bike drivenm by accused No.3, accused Nos.1 and 2 were pillion riders and on the second motor bike driven by accused No.4 there were two 2 pillion riders i.e. accused Nos. 5 and 6. Both motor bikes stopped near the jeep, all the 6 accused took out weapons from the dickey of the motor bikes, accused No.3 removed the keeys of the jeep and gave fist blow to P.W.1-Sopan Dagadu Gholap. At the same time the remaining accused went behind the jeep and dragged Ankush, Rajendra and Shivaji from the jeep and by then accused No.3 also joined them. Accused started assaulting Ankush, Sopan and Shivaji, Ankuksh was held by accused No.3 and accused Nos.1 and 2 inflicted multiple attackes on him with sharp deadly weapons. Accused No.1 was holding knife (article 10) and accused No.2 inflicted attack by sattur (article No.7). The attack on Ankush was so brutal that his intestine came out and he collapsed. The attacking party then moved to Rajendra (P.W.7) and Shivaji Sanas (P.W. 7 cri.app.626 of 2001.sxw 9). Both of them sustained injuries and P.W.7 went to the nearby dispensary of Dr. Goregaonkar for immediate treatment. P.W.9 was taken by rikshaw to the Government Hospital at Bhor and from their he was shifted to Sancheti Hospital at Pune, whereas the father in law of P.W.7 shifted him in a jeep to K.E.M. Hospital at Pune. P.W.9 was under treatement for about 10-15 days whereas P.W.7 was hospitalised for more than one month and underwent multiple operations. P.W.1 Sopan Dagadu Gholap had managed to run away from the spot though he was chased by accused Nos. 5 and 6 and returned to the spot after some time the accused party had fled on their motor bokes. The police reached the spot after P.W.1 Sopan Dagadu Gholap recorded his complaint at Bhor Police Station at about 11.50 a.m. Ankush was dead on the spot. Inquest Panchanama (Exhibit 36) was drawn and his dead body was sent for Postmortem which was conducted by Dr. Praveen Haribhau Chaudhary (PW 16), at the Rural Hospital, Bhor. 5. Initially the investigation was conducted by Ashok Ananda Jagdale. P.S.I. P.W.25 with the assistance of Rajaram Dabade, P.H.C., P.W.26 Rajaram Shripati Dabhade on 17th June, 2009 T.I.Parade was held for the identification of accused No.5 by all three eye witnesses and for 8 cri.app.626 of 2001.sxw the identification of accused No.6 by P.W.1, T.I. Parade was conducted by P.W.15-Sanjay Narendra Kundetkar, Tahasildar of Bhor. In the meanwhile accused Nos. 1 and 2 came to be arrested on 27th April, 1999 itself by Police Head Constable-Subhash Mahadeo Raje, P.W.14. Accused Nos. 3 and 4 were arrested on 29th April, 1999. Accused No.5 was arrested on 30th April, 1999 from his house at village Kobardi and accused No.6 was arrested on 4th May, 1999 by Rajaram Shripati Dabhade (P.W.26). The clothes of the deceased as well as the accused were recovered and at the instance of the accused the weapons were purportedly receovered and the clothes and the weapons were sent for Chemical Analysis. The statements of injured witnesses i.e. P.W.7-Rajaram were recorded on 27th April, 1999, 28th April, 1999 and 10th May, 1999. The statements of P.W.9-Shivaji Sakharam Sanas were recorded on 28th April, 199 and 10th May, 1999. On completion of investigation the charge sheet was filed and on committing the case the Sessions Court framed the charge on 10th August, 2000. 6. The prosecution examined in all 27 witnesses and the defence examined one witness D.W.1- Balasaheb Ramchandra Gholap. However, in the statement under Section 313 of Cr.P.C., all the accused denied their involvement in the incident of 27th April, 1999 near the shop of Shri 9 cri.app.626 of 2001.sxw Mhasawade in which Ankush died. Through the evidence of D.W.1- Balasaheb Ramchandra Gholap it was tried to make out that accused Nos. 1 and 2 were not at the spot and in fact they were at the Rural Hospital at Bhor along with D.W.1 when the incident had taken place. Therefore, in the evidence of D.W.1 it has also been established that there were fractions in the Gholap family on account of the village politics. The incident of some quarrel between the deceased and the relations of the accused had taken place on 26th April, 1999 at village Kari and after the incident of 27/4/1999, a motion of no confidence was passed against D.W. 1- Balasaheb Ramchandra Gholap and consequently he was removed from the post of Sarpanch of the village. 7. The learned trial Judge considered the medical evidence as was placed before him through P.W.16-Dr. Praveen Haribhau Chaudhary, P.W-19-Dr. Parag Kantilal Sancheti and P.W-21-Dr. Yogesh Pralhad Chaudhary as well as the evidence of 3 eye witneees i.e. P.W.1 Sopan Gholap, P.W.7-Rajendra Gholap and P.W.9-Shivaji Sanas. Out of 27 witnesses examined, 4 were police personnel, 3 were doctors, 15 panch witneses and 7 panch witnesses had turned hostile. On assessment of the medical as well as the oral evidence and C.A., reports, the trial Court held 10 cri.app.626 of 2001.sxw that Ankush died a homicidal death in the incident on 27th April, 1999. The injuries sustained by P.W.7-Rajendra were grievous and they would have resulted in his death if he had not received medical treatment. As per the trial Court the prosecution could not establish its charge of unlawful assemply and the presence of accused Nos. 4 and 5 on the spot of the incident was doubtful. The trial Court also found that the participation of accused No.3 in the incident was not proved by the prosecution beyond reasonable doubts and consequently the accused Nos. 3, 4 and 5 came to be acquitted. On the basis of the medical evidednce of P.W.16, P.W.19 and P.W.21 as well as the evidence of three eye witnesses P.W.1 - Sopan Dagadu Gholap, P.W.7-Rajendra Maruti Gholap and P.W.9- Shivaji Sakharam Sanas, the trial Court held that the prosecution had proved its charge under Section 302 and 307 beyond reasonable doubts against the accused Nos. 1,2 and 6. The trial Court held that accused Nos. 1 and 2 were responsile for causing the death of Ankush and accused Nos.1,2 and 6 were responsible in attacking P.W.7-Rajendra Maruti Gholap and P.W.9- Shivaji Sakharam Sanas and on account the injuries recieved by P.W.7- Rajendra Maruti Gholap it held that the charge under Section 307 read with Section 34 of I.P.C. was proved against accused Nos. 1,2 and 6. 11 cri.app.626 of 2001.sxw 8. As noted earlier P.W.16- had conducted postmortem examination of the dead body of Ankush on 27th April, 1999 at about 2.30 p.m., and sent the postmortem report at Exhibit 70. As per Dr. Praveen Haribhau Chaudhary the deceased Ankush had sustained the following injuries:- 1. Left index finger totally cut off. 2. Left thumb ½ cut off. 3. Two incised wounds over left wrist 3 c.m. x 2 c.m. 4 c.m. x 2 c.m. 4. Incised wound at side of chest (deep) below neck 4 cm x ½ cm. 5. Two incised wound over left side of abdomen i) 24 cm. x 10 cm. x 17 cm. ii) 14 cm. x 10 cm. deep. (Exposing intestines to exterior) 6. Incised wound over left side back, below scapular region. 5 cm x 2 cm. x 2 cm. 7. Incised wound right wrist. i) 3 cm. x 2 cm. x 2 cm. ii) 1 cm. x 1 cm. 8. Incised wound over occipit 9 cm. x 1 ½ cm. 9. Incised wound over back on left side. i) 9 cm. x 2 ½ cm. x 3 cm. ii) 15 cm. x 3 cm. x 3 cm. 9. On internal examination the P.W.16- Dr. Praveen Haribhau Chaudhary found the following internal injuries:- 12 cri.app.626 of 2001.sxw 1) Hemoperitoneum present. 2) Cut injury on xiphi – sternum present. 3) Incised wound over major lobe of liver 7 cm. in length. 4) Right chamber of heart cut open. 3 ½ cm. x 1 cm. 5) Mesentric vessels cut. 6) Incised wound over greater omentum. 7) Left kidney having incised wound on posterior side. 8) Hemorrhage present in brain matter. The Medical Officer further stated that the external as well as internal injuries could be caused by hard and sharp weapon like that of Sattur and knife, articles 7, 9 and 10 shown to him in the Court while he was in the witness box. He also stated that all the injuries were ante-mortem and fresh and they were sufficient to cause death in the ordinary course of nature. In his opinion the deceased died due to haemorrhagic shock due to multiple injuries to vital organs like heart, liver, kidney, intestinal vessels and brain. 10. P.W.9- Shivaji Sakharam Sanas was also examined by him on 27th April, 1999 when he was taken to the Rural Hospital, Bhor without a police yadi. He had prepared emergency case papers for the patient (accused No.69) and as per him the injuries were griveous in nature. The following external injuries were seen on the person of Shivaji Sakharam 13 cri.app.626 of 2001.sxw Sanas:- 1. Incised wound over palmer aspect, going deep upto bones, at left thumb. 2. Incised wound over dorsal aspect, two in number. Tendon injury. He also stated that if the patient would not have got proper treatment immediately, he would have landed in haemorrhagic shock due to blood loss which would have possibly caused his death. Hence the patient was immediately referred to Sassoon Hospital at Pune for further treatment because the injuries required expert management. As per the evidence of P.W.19 Dr. P.K. Sancheti, P.W. 9 - Shivaji Sakharam Sanas came to be admitted in the Sancheti Hospital at Pune on 27th April, 1999 at about 5.00 p.m., and apart from the injuries noted by P.W.16, Shivaji had sustained the following injuries on his person:- 1. CLW on right anterior superior iliac. 2. CLW on occipital region. 3. CLW on left leg. 4. Abrasion on right leg. 14 cri.app.626 of 2001.sxw P.W.19 stated before the Court that the injuries on the had was of grievous nature and they could be caused by sharp and hard object like that of Sattur and knife shown to him in the Court. The injury on the hand could be possible by the knife as was shown to him. He also stated that Shivaji was issued a certificate on 6th May, 1999 and came to be discharged on the same day. He had placed before the Court the medical papers at Exhibit 76. He also admitted that he had treated Shivaji on 27th April, 1999 between 5.30 p.m., to 6.00 p.m., and Shivaji had given the history of assault. 11. As per P.W.21- Dr. Yogesh Pralhad Chaudhary, P.W.7- Rajendra Maruti Gholap was admitted at the KEM Hospital on 27th April, 1999 at 3.00 p.m., and he was discharged on 18th May, 1999 and the medical history was recorded in the case papers placed before the Court at Exhibit 79. He was operated on 28th April, 1999 and consequently on 13th May, 1999. When he had examined P.W.7-Rajendra Maruti Gholap on 27th April, 1999 the following injuuries were noticed on his person:- Injuries on Chest: 1) Sucking wound about 4 to 5 cm. oblique anterior 15 cri.app.626 of 2001.sxw axillary line on left side. 2) Left 5th rib fractured anteriorly wound is creating on open pneumothorax on left side. 3) There was a line cut on phisternum 5 cm. Injuries on back: 1) Superficial C.L.W. 5 cm. in length on left side of spine near lumber region near transverse processes of L-3 and L-4 vertebra. 2) Near the spinal process of L-5 vertebra going on the left side, deep CLW 7 cms. transverse in direction muscles visualised quadratus lumberrumcut. Injuries on Knee: 1) On right knee joint, superficial CLW interiorly lower pattellar region, curved 6 to 7 cm. 2) Medical to upper end of patterlar 3 to 4 cm. curved CLW. Injuries on Arm: 1) Right Arm: Posteriorly muscle deep CLW oblique at mid-arm 12cm. 2) On the left arm : Posteriorly muscle deep oblique 6 cm. at mid-arm. Injuries on Right hand:- 1) Radial side of plamer aspect of hand going oblique to proximal phalax of little finger tendon deep. 12. As per Dr. Yogesh Pralhad Chaudhary all the injuries could have been caused within 5 to 6 hours and by sharp weapons like sattur 16 cri.app.626 of 2001.sxw and knife. Article 7,10,40,41 and 42 were shown to him before the Court. The injuries on the back had caused the perforation of anterior and posterior wall of discending colon which had caused faecal leak and peritonitis. The injuries on the chest and back were sufficient to cause death in the ordinary course of nature individually and collectively. P.W. 7-Rajendra Maruti Gholap was treated by Dr. S.A. Patki and his team. The history of the patient was recorded as it was told by the accommpanying person i.e. Baburao Kothawale – the father-in-law and the patient was brought from Goregaonkar Hospital at Bhor by him. The Doctor had noticed fracture on the 5th rib of the chest and was described as a serious injury. The said facture could have been caused by Article 7 if it was used by force. If the knifes were used by force from the sharp edge they would cause incised wound and if the blow is given by the sharp side, then the edges of the wound would be clean-cut. He denied the suggtestion that the injury on the chest and corresponding internal injury were not sufficient to cause death in the ordinary course of nature. 13. Let us now consider the prosecution case. To begin with, we must deal with the T.I. Parade conducted by PW 15 and which has been discarded by the trial Court. The incident had taken place on 27th April, 17 cri.app.626 of 2001.sxw 1999 and the last accused i.e. Accused No.6-Vitthal Nivrutti Salunkhe came to be arrested on 4th May, 1999. However, the T.I. Parade was conducted for the first time on 17th June, 1999. In the explanation of the I.O. P.W.25-Ashok Ananda Jagdale there is no sufficient material to support this delay. Though the I.O., stated that on 27th May, 1999 he came to be transferred and the investigation was handed over to his successor Officer. On the record, there is a letter at Exhibit 63 written on 3rd June, 1999 by the Bhor Police Station to Tahsildar, Bhor for conducting the T.I. Parade for all the accused and vide letter dated 10th June, 1999 Exhibit 64 the Tahasildar fixed the T.I. Parade on 17th June, 1999. There is no doubt that the T.I. Parade conducted so belatedly would not be safe to rely upon and we do not find any error committed by the trial Court in that regard. However, let it be noted at this stage that even if the T.I. Parade is discarded, it may not affect the prosecution case for the simple reason that accused No.5 was the only accused who was not known to all the three eye witnesses at any time prior to the date of incident. Criminal Appeal No.626 of 2001 filed by the State Government has been dismissed against accused No.5 for non-prosecution. Accused No.6 was known to P.W.7 and P.W.9 though he was not known to P.W.1 when the incident 18 cri.app.626 of 2001.sxw had taken place. The incident had taken place in a broad day light i.e. around 11.30 a.m., and in a public place in Bhor town. The complainant party and the accused party are known to each other and accused No.5 was the only person who was unknown to all the eye witnesses. Thus even if excluding the circumstance of T.I. Parade we are required to proceed to decide the prosecution case on the basis of evidence of the eye witnesses and despite the fact that some of the recoveries of weapons from accused Nos. 5 and 6 have not been proved as the panch witnesses turned hostile, these deficiencies would not weaken or vitiate the prosecution case. 14. In their statements recorded under Section 313 of Cr.P.C., the accused denied their involvement in the incident and claimed that they were falsely implicated on account of the election rivalry in the village. PW 1 had contested elections for the post of Sarpanch against the brother of accused no.2. At the same time, through the evidence of DW 1 – Balasaheb Gholap, the defence of accused nos.1 and 2 was, that they were not present at the spot of the incident and, in fact, they were with the said witness in the Government hospital at Bhor. 19 cri.app.626 of 2001.sxw 15. To begin with, we have to examine the first issue of unlawful assembly, as defined under Section 141 of IPC. As per the said section, an assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is as set out therein. Section 143 of IPC provides for punishment against a member of an unlawful assembly. Under Section 149 of IPC, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. As held by the Supreme Court in the case of Chikkarange Gowda and ors. vs. State of Mysore [AIR 1956 SC 731], the first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly and the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Section 149 postulates an assembly of five or more persons having a 20 cri.app.626 of 2001.sxw common object, namely, one of those objects named in Section 141 and then the doing the acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object. In the case of Baladin and ors. vs. State of Uttar Pradesh [AIR 1956 SC 181], it is held that the mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the