1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.450 OF 2002 Manohar Sidram Ukarande, Age: 35 years, R/o. Borale, Taluka Mangalwedha, Dist.: Solapur (At present Lodged in Yervade Central Prison) ..Appellant. V/s. The State of Maharashtra ..Respondent. CRIMINAL APPEAL NO.451 OF 2002 1. Suresh Dattu Bhojane, Age: 27 years, 2. Anna @ Anil Maruti Bhojane, Age: 22 years, Both R/at : Borale, Tal.: Mangalwedha, Dist.: Solapur (At present lodged in Yervada Central Prison, Pune). ..Appellants. V/s. The State of Maharashtra ..Respondent. CRIMINAL APPEAL NO.452 OF 2002 Dhondappa Bimrao Nakate, Age: 32 years, Occu.: Agriculturists, R/at : Borale, Tal.: Mangalwedha, Dist. : Solapur (At present detailed as 2 condemned Prisoner in Yerwada Central Prison, Pune) ..Appellant. V/s. The State of Maharashtra ..Respondent. CRIMINAL APPEAL NO.453 OF 2002 1. Sachin Rama Bhojane, Age: 18 years, Occu.: Student-cum-business 2. Satish Rama Bhojane, Age: 27 years, Occu.: Profession, Both R/o. Borale, Taluka Mangalwedha, Dist. Solapur (At present detailed as condemned Prisoner in Yerwada Central Prison, Pune) ..Appellants. V/s. The State of Maharashtra ..Respondent. AND CRIMINAL APPLICATION NO.1171 OF 2010 IN CRIMINAL APPEAL NO.453 OF 2002 Sachin Rama Bhojane, Age 30 years, Occu.: Nil R/o. Borale, Tal.: Mangalwedha District : Solapur ..Applicant V/s. The State of Maharashtra ..Respondent. 3 Mr.Ujwal Agandsurve for the appellants Mr.F.R. Shaikh, APP for State. CORAM : A.M. KHANWILKAR & U.D.SALVI, JJ. RESERVED ON : 9th SEPTEMBER, 2010 PRONOUNCED ON : 18th OCTOBER, 2010. JUDGMENT (PER U.D.SALVI, J.) 1. These are the appeals preferred against the judgment and order of conviction under Sections 147, 148, 302 & 307 r/w. 149 of the I.P.C., 1860 in Sessions Case No.56/99 passed by the learned II Additional Sessions Judge, Pandharpur at Pandharpur on 21/2/2002. The accused No.7 Kondabai Bhimrao Nakate and accused No.8 Chhaya Rama Bhojane were acquitted in the said case and the State has preferred to remain silent as regards the challenge to the judgment and order of acquittal of the said accused. 2. Accused No.4 Manohar Sidram Ukarnade, the appellant in Criminal Appeal No.450/02, accused No.5 Suresh Dattu Bhojane and No.6 Anna @ Anil Maruti Bhojane, the appellants in Criminal Appeal No.451/02, accused No.1 Dhondappa Bhimrao Nakate, the appellant in Criminal Appeal No.452/02 and accused no.2 Sachin Rama Bhojane 4 and No.3 Satish Rama Bhojane, the appellants in Criminal Appeal No. 453/02 were sentenced as under:- (i) to suffer rigorous imprisonment for a period of one year and to pay fine of Rs.100/- i/d. to suffer further simple imprisonment for a period of one week for the offence punishable under Section 148 of I.P.C.; (ii) to suffer rigorous imprisonment for a period of 7 years and to pay a fine of Rs.100/- i/d. to suffer S.I. for a further period one week for the offence punishable under section 307 r/w. 149 of I.P.C.; (iii) to suffer rigorous imprisonment for life and to pay a fine of Rs. 100/- i/d. to suffer further imprisonment for a period one week for the offence punishable under section 302 r/w. 149 of I.P.C.; 3. No separate sentence was passed for the offence punishable under Section 147 of IPC, 1960. Substantive sentences were ordered to run concurrently. 4. One Savita Madhukar Gaikwad, sister of the deceased Mohan Mahadev Mungase and the injured Nandkumar Mungase lodged complaint alleging assault with deadly weapons namely swords and scythes on her brother Mohan and Nandkumar at about 8.00 p.m. on 5 6th February, 1999 in the house of one Rama alias Mama Bhojane by the appellant-accused nos. 1 to 4 and 7 resulting in the murder of Mohan and grievous injuries to Nandkumar, with Mangalwedha police station. Crime at C.R. No. 10/99 under Section 302, 307, 34, IPC 1860 and 135 of Mumbai Police Act, 1951 came to be registered at the said police station following the said complaint. The police took the photographer and panch witnesses to the place of occurrence, i.e. the house of Mama Bhojane. Dead body of Mohan Mungase was found lying in the house. Inquest was held at the spot. The place of occurrence was photographed. Body of the deceased was sent for postmortem examination. Besides the body of deceased, four swords and scythes, the weapons used in the crime were recovered from the said place. Blood was found spilled inside the house of Mama Bhojane. Blood stained weapons were duly seized. One tempo tractor was also seized from the vicinity of the said house. Scene of offence panchnama was drawn. 5. In the course of investigation, the accused were arrested. Blood stained clothes found on person of the appellant-accused no. 1 Dhondappa, accused no. 2 Sachin, accused no. 4 Manohar, accused no. 4 Satish were seized from their person. Seized articles were sent for further scientific investigation to the Forensic Science Laboratory. 6 Meanwhile, the statements of the witnesses were recorded. Statements of the injured Nandkumar Mungase and Maruti Nakate were also recorded by the Executive Magistrate at Solapur. The sketch of the scene of offence was procured with the assistance of Inspector of Land Records. Human blood was detected in the earth collected from the place of occurrence, weapons used in the crime, clothes of the deceased and injured victim, and clothes seized from the person of the accused nos. 1 to 4. 6. Prosecution further revealed that the gory incident had occurred as a result of quarrel over the entrustment of country liquor shop belonging to Mama Bhojane to the deceased Mohan Mungase and his brother Nandkumar for running it. According to the prosecution on 6th February, 2009 at about 7.00p.m. the deceased Mohan Mungase, Balu Mungase, Anil Dhanve and Yuvraj Mungase were sitting near the sho of one Shiva Chougule at village Borale when the accused nos. 1, 3,4,5 & 6 arrived at that place and started abusing and mortally threatening Mohan Mungase; and thereafter the deceased Mohan alongwith Balu Mungase, Anil Dhanve and Yuvraj Mungase went to the house of Mama Bhojane to apprise the wife of Mama Bhojane accused no. 8 Chhaya about the said incident. Around 8.00 p.m. that day, the prosecution revealed, a telephonic call was made to Nandkumar 7 whereupon Nandkumar and his sister Saivta went to the house of Mama Bhojane and happened to witness the murderous assault launched by the accused with sharp edged weapons namely swords and scythes on the deceased Mohan. Nandkumar was also assaulted and received grievous injuries. Providentially, Nandkumar was saved from fatal assault at the hands of the accused nos. 5 & 6 only for the reason of Savita’s intervention. One Maruti Nakate who happened to come to the house of Mama Bhojane was also assaulted with sharp edged weapons and received injuries as a result thereof. 7. It is also the prosecution case that Anil Dhanwe, in the meanwhile after witnessing the quarrel inside the house of Mama Bhojane approached police at the outpost situated at Village Borale and could get police constable Mahadev Matkari and his associates to the place of occurrence. Police constable Mahadev Matkari, according to the prosecution could witness Savita taking out the injured persons and the accused Nos.2 & 3 following them in order to launch further assault and on finding the police, withdrawing themselves to the confines of the room. Police constable Mahadev Matkari peeping through the gap in the door could further witness deceased Mohan lying in a pool of blood inside the house and accused Nos.1 to 4 and 7 armed with swords and scythes there. The prosecution further revealed that police 8 constable Mahadev Matkari and others removed the injured Nandkumar and Maruti Nakatate firstly to Mangalwada police station and thereafter to Rural Hospital, Mangalweda. Following these developments, the prosecution further revealed the crime in the present case came to be registered. 8. Charges (Exhibit 2) under Sections 148, 302 r/w. 149, 307 r/w. 149 of I.P.C. and section 135 of the Bombay Police Act were framed on 23/2/2000. The accused did not plead guilty to the charges. The record reveals that in response to a notice (Exhibit 11) under section 294 of Criminal Procedure Code, 1973, the accused admitted the genuineness of the following documents. (i) Inquest panchanama – dated 7/2/1999 (Exhibit-57); (ii) Seizure panchama of the clothes of the deceased – dated 7/2/1999 (Exhibit-58); (iii) Arrest panchama of the accused Kondabai Nakate – dated 12/2/1999 (Exhibit-59); (iv) Post Mortem Notes - dated 7/2/1999 (Exhibit-60); (v) O/c. Of the letter dated 7/12/1999 to the photographer - (Exhibit-61); (vi) Photographs (Exhibit – 62-66); 9. Besides these documents, the accused also admitted in the evidence, the injury certificates Exhibits 89 & 90 in respect of injuries 9 sustained by P.W.5 Nandkumar and P.W.7 Maruti Nakate. 10. The prosecution examined P.W.1 Vitthal Pawar, Maintenance Surveyor to place on record the sketch of the place of occurrence and further proceeded to examine P.W.2 Ramchandra Phadtare, P.W.3 Sidheshwar Dhavare - panch witness, P.W.4 Savita Gaikwad – the complainant, P.W.5 Nandkumar Mungase - injured victim, P.W.6 Parsuram Randive - panch, P.W.7 Maruti Nakate - injured victim, P.W.8 Balu Mungase, eye witness, P.W.9 Mahadev Metkari - police constable of outpost at village Borale, P.W.10 Shatrughan Admane - A.S.I. Mangelwedha police station, P.W.11 Suresh Ghadge - A.P.I. and Investigating Officer. The panch witnesses and P.W.7 – Maruti Nakate, one of the injured victim turned hostile. The evidence of P.W.7 Maruti Nakate however, affirms the occurrence of the gory incident at the house of Mama Bhojane, the place of occurrence at the material time. His departure from the prosecution case was marked by an averment that he did not know who were the assailants. 11. It is in this background, learned Advocate Agandsurve submitted that the utterances in defence, as disclosed through the evidence and examination of the accused in response thereto dismisses the prosecution case as a false and concocted one created out of 10 political rivalry. The accused in their defence have examined D.W.1 Bhimrao Talbhandare, Executive Magistrate to bring on record that the statements of P.W.5 Nandkumar Mungase and P.W.7 Maruti Nakate (Exhibits 144 & 145) recorded under Section 164 of Cr. P. C. The prosecution has relied on both direct and circumstantial evidence and submitted that the evidence was complete and sufficient to rope in the accused persons in the crime, particularly for the reason that there was clinching evidence regarding the incident of assault in Mama Bhojane's house and there was no reason for the injured victims to involve innocent persons in the crime. The defence on the other hand, assailed the evidence of eye witnesses P.W.4 Savita, P.W. 5 Nandkumar and P.W.8 Balu Mungase. The contradictions and discrepancies in their evidence were pointed out to discredit their evidence. 12. Taking total view of the evidence and its collective study in light of the judicial precedents cited by the rival parties, the perusal of the impugned Judgment shows, the learned trial Court held that the prosecution succeeded in establishing that the appellant accused being armed with deadly weapons had formed an unlawful assembly with common object to commit murder of the deceased Mohan Mungase and the injured victims and had committed murder of the deceased Mohan Mungse and attempted to commit murder of injured victims 11 Nandkumar Mungse and Maruti Nakate. Failure of the prosecution to give evidence regarding blood group, Learned trial Court held, did not weaken or disturb trustworthy ocular version in respect of the crime and the criminals involved in the commission of such crime. 13. The learned Advocate Agandsurve for the appellants pointed out that with the demise of the Appellant Dhondappa B. Nakate in Criminal Appeal No.452 of 2002, the said appeal stood abated and what remained for consideration of the Appellate Court was the question of the involvement of the other appellants in the crime. The learned Advocate Agandsurve for the Appellants took us through the evidence led by the rival parties and focused his submission on the testimony of P.W.5 Nandkumar Mungase. The reason for this approach, he submitted, was the learned trial Court's distaste for the evidence of P.W.4 Savita Gaikwad, the complainant, P.W.6-Parsuram Randive, P.W.7- Maruti Nakate and the panch witness. According to him, the evidence of P.W.5 Nandkumar Mungase suffers with material contradictions and omissions and therefore, deserves no credence. Even if believed, he submitted, the evidence of P.W. 5 Nandkumar Mungase assigned no specific role to the appellant accused Nos. 5 and 6 in the crime and therefore, the Accused No.5 Suresh Bhojane and Accused No.6-Anna @ Anil Maruti Bhojane deserve accuittal in the present case. 12 14. In the course of the arguments, it was felt necessary to consider the efficacy of the medical evidence, namely, the admitted Post Mortem Examination report (Exh. 60), injury certificates(Exh. 89 and 90) in absence of the testimony of the concerned medical officers. Very fairly, the learned Advocate Agandsurve for the appellants placed before us the Judgment of the Full Bench of this Court in the case of Shaikh Farid Hussinsab V/s. State of Maharashtra reported in 1981 Mh. L.J.345. He also drew our attention to the Judgment in the case of Mohinder Singh Inder Singh V/s. The State reported in AIR 1953 SC 515, to urge before this Court that it was the duty of the prosecution to prove by experts evidence the nexus between the injuries and weapons, as it is a case of death or injury by lethal weapons. 15. The learned Public Prosecutor submitted that the learned trial Court had rightly believed the testimonies of the victims who had opportunity to witness the crime in electric light. Occurance of the incidence is quite evident even from the hostile testimony of P.W. 7 Maruti Nakate, as well as the circumstances, which were brought on record by the Investigating Officer. He further submitted that at no point of time, the accused had raised any issue regarding the medical evidence and questioned the injuries observed by the medical officer in cause of injuries and the cause of death as revealed through the PM 13 report (Exhibit 60) and Injury Certificate (Exhibits 89 & 90). The admission of the said documents, in such a situation, he submitted, obviate the need to examine the concerned medical officers. To demonstrate the fact that the weapons were sharp edged weapons, he invited our attention to the weapons, which were specially produced before us for inspection. 16. In Shaikh Farid Hussinsab's case, the Full Bench of this Court examined the scope of section 294 of Cr.P.C. in understanding the worth of the Post Mortem Report, genuineness of which was admitted by the Accused in evidence. The probative value of such Post Mortem Report, i.e. the medical evidence came under judicial scanner. In the said case similar as the present one wherein the doctor who held the post mortem examination and prepared notes was not examined at the trial, after the defence had indicated that it was not disputing genuineness of the post mortem notes in response to a query under sub-section 1 of section 294 of the Code. Ganpat Raoji's case(Ganpat Raoji v/s. State of Maharashtra-reported in 1980 Mh.L.J. 60) where similar question was raised and answered in favour of the defence was also considered by the Full Bench. 17. While dealing with Ganpat Raoji’s case, the Full 14 Bench of this Court observed that two different rules one governing probative value of documentary evidence and other governing its reception in evidence, were read together in arriving at a wrong conclusion. The reason thereof for this observation lies in the difference between the probative value and the reception of documents in evidence. Rightly so, therefore, the Full Bench could clearly see in Section 294 of the Code of Criminal procedure. 1973 the potential to facilitate the waiver of the mode of proof prescribed under Section 67 to 71 of the Evidence Act in criminal cases. In the instant case, this potential has been utilised in order to dispense with the mode of proof in respect of the P.M. notes Exhibit-60. As regards the probative value of the document, in terms of its value as “corroborative” and “substantive” evidence, all depends on the context and set of facts in each case. The following observations made by the Full Bench of this Court at para 15 of Shaikh Farid Hussinsab's case are material in this regard:- "15. Ganpat Raoji's case as also the Gujrat High Court case were cases in which failure to examine the doctor was found to have resulted in a miscarriage of justice. In some such cases location of injuries, extent of the depth and width and the details as to the nature thereof and possibility of their being caused differently from the one sought to be established, are all very important factors and the doctor's answers to some pertinent questions in evidence can make a difference to the result of the case. But this cannot be true of each and every case. Whether 15 the doctor's evidence is necessary or not depends on facts and facts of each case, the prosecutor, the accused and his lawyer being the best judges to decide it as also the points on which each one of them should concentrate their attack. Their reaction to the query under sub-section (1) ordinarily should be decisive. Raising no dispute to the genuineness of any document implies their considered decision of further details being irrelevant. The Court has ordinarily to accept this decision and refrain from entering into the arena itself unless miscarriage of justice is apprehended on demonstrable grounds. The section also invests the Court with a discretion to examine the doctor or any such witness in that case. The section itself thus furnishes in-built protections to the defence or the prosecutor against possible lapses. It was open to the Court in its such discretion to examine the doctor or any other witness when it apprehended miscarriage of justice. Mere such apprehension cannot justify interpreting the section differently and hold it inapplicable to post-mortem reports in the face of its plain language indicating to the contrary." In the instant case, there is no controversy over the injuries sustained by the deceased as well as injured victims in the crime. No such controversy figures in the evidence in respect to the weapons used vis- a-vis injuries sustained. The medical evidence in the fact and circumstances of this case, therefore, needs to be accepted. Judgment in Mohinder Singh Inder Singh's case for the same reason is not applicable in the present case. 18. Admitted documents, particularly, inquest panchanama (Exh.56) and seizure panchanama (Exh.57 and 58) provide clear view of the following facts: 16 (i) Body of the deceased Mohan Mungase bearing lacerated bleeding injuries on the head, face and neck, as well as on thigh and waist, was found lying on the tile flooring inside house No. 88/183, situated at village Borale. (ii) Clothes of the deceased were found blood stained. (iii) Clothes of the deceased were duly seized. (iv) Bloodstained torned and cut clothes of the injured Nandkumar Mundse were duly seized on 9/2/99. 19. Evidence of P.W.1-Vithal Pawar, Maintenance Surveyor at Mangalwedhe gives the view of the layout of the said house No.88/183 at village Borale. His cross-examination fails to disturb this view in any manner. In relation to this evidence, it is necessary to further appreciate the evidence of eye-witnesses in the present case. 20. Evidence of P.W.4 Savita Gaikwad and P.W.5 Nandkumar Mungase reveals that P.W.5 Nandkumar on getting telephonic call from the house of Mama Bhojane proceeded to the said house and P.W.4 Savita followed him. Both of them made mention of electric light in the house of Mama Bhojane at the material time. These facts have remained unscathed in their testimonies and have survived their cross- examination. 17 21. As regards the incident of assault with sharp edged weapons i.e. swords and scythe. Both P.W.4 Savita and P.W.5 Nandkumar deposed that the deceased Mohan was assaulted with sword. P.W.5 Nandkumar named the accused No.1 Dhondappa, Accused No.2 Sachin, Accused No.3 Satish and Accused No.4 Manohar as the accused armed with sword and assaulting the deceased Mohan at the material time. He further went on to depose that the Accused No.1 Dhondappa gave blow of sword on the head of Mohan as a result of which Mohan fell down, and then he was assaulted by the other accused No.2 Sachin, Accused No.3 Satish and Accused No.4 Manohar with swords. He further deposed that the Accused No.2 Sachin, Accused No.3 Satish gave sword blows on his right shoulders and just below left side of his throat, and he was saved due to the intervention of his sister Savita from getting further sword blows at the hands of Accused No.5 Suresh and Accused No.6 Anna. He gave sequence of sword blows, successively at the hands of Accused No.1 Dhondappa, Accused No.2 Sachin, Accused No.3 Satish. Significantly, he spoke about the arrival of P.W.7 Maruti Nakate at the place of occurrence at the material time. 22. P.W.7 Maruti Nakate deposed that he was knowing all the accused, deceased Mohan, injured Nandu Mungase and his sister Savita; 18 and when Mohan died, he was at the corner of one of the road in village Borale and happened to sustain injuries at the door of the house of Mama Bhojane. He testified that he sustained blow from the backside and did not know who others sustained injuries at that time. Obviously, he turned hostile to the prosecution. In his cross- examination done by the prosecution, the prosecution made the reason for his hostility, to surface. He averred that he shifted from a hut to a constructed house in village-Borale after the incident as a beneficiary of the scheme of Panchayat Samity of which one of the accused Chhaya was a chair person. Whatever be the cause for his hostility, the evidence of P.W.7 Maruti Nakate lost its value only as regards culprits involved in the crime but not the occurrence of incidence at the house of Mama Bhojane. This can very well be seen from the averments in his cross- examination done on behalf of the accused, which revealed that the incident had occurred in Mama Bhojane’s wada. 23. As discussed above, with the admission of P.M.examination notes and injury certificates in evidence in response to the notice under section 294 of Cr.P.C., there should be no difficulty in looking into the said medical evidence for understanding controversy in the present case. The injury certificates Exh. 89 and 90 give details of the injuries sustained by P.W.5 Nandkumar and P.W.7 Maruti Nakate as a result of 19 the assault at the material time. Injuries, such as three incise wounds caused by sharp weapon (i) on left side neck (grievous injury); (ii) right shoulders (simple injury); and (iii) right hand four fingers cut transversely (grievous injury) were found to have been sustained within two hours of the reported incident by P.W.5 Nandkumar. Incise wound caused by sharp object was detected on the right scapula of P.W. 7 Maruti Nakate. In light of this medical evidence and taking over all view of the total evidence, the learned trial Court rightly concluded that P.W. 5 Nandkumar having sustained the injuries as aforesaid could be believed to have witnessed the incident in the electric light at the material time and there was no reason to doubt his testimony. Having reached this conclusion, there was no reason for the learned Trial Court to have discarded the testimony of P.W. 5 Nandkumar for the reason of inconsequential discrepancies in his evidence vis-a-vis his statement Exhibit 145 recorded by D.W. 1 Deoram Bhimrao Kalbandhare, Executive Magistrate, North Solapur. 24. Perusal of the statement at Exhibit 145 recorded by D.W. 1 Deoram Bhimrao Kalbandhare, Executive Magistrate reveals the fact that P.W. 5 Nandkumar did make a reference to his unconscious state. However, this fact has to be viewed in context with other statements made by him as well as the evidence on record. In the statement 20 Exhibit 145, P.W.5 – Nandkumar reveals the involvement of the