1 I N THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.230 OF 2008 1. Sk.Ayyub s/o Sk.Karim Age-30 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 2. Sk.Noor s/o Sk.Karim, Age-20 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad APPELLANTS VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for the appellants Mr.N.R.Shaikh, A.P.P. for respondent State ....... WITH CRIMINAL APPEAL NO.231 OF 2008 1. Sk.Kayyum s/o Sk.Karim Age-27 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 2. Sk.Firoz s/o Sk.Karim, Age-35 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad APPELLANTS VERSUS The State of Maharashtra RESPONDENT 2 ....... Mr.Joydeep Chatterjee,, Advocate for the appellants Mr.N.R.Shaikh, A.P.P. for respondent State ....... WITH CRIMINAL APPEAL NO.482 OF 2007 1. Sk.Karim s/o Sk.Gafoor Age-60 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 2. Shamabi w/o Sk.Feroz, Age-30 years, Occ-Household R/o Bidkin, Tq-Paithan, Dist-Aurangabad 3. Shakila bee w/o Sk.Ajij Age-42 years, Occ-Household R/o Bidkin, Tq-Paithan Dist-Aurangabad APPELLANTS VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.S.Ghanekar, Advocate for the appellants Mr.N.R.Shaikh, A.P.P. for respondent State ....... WITH CRIMINAL APPEAL NO.264 OF 2008 The State of Maharashtra Through Police Station Bidkin, Tq-Paithan, Dist-Aurangabad APPELLANT 3 VERSUS 1. Sk. Karim s/o Sk.Gafoor, Age-60 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 2. Sk.Kayyum s/o Sk.Karim Age-27 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 3. Sk.Feroz s/o Sk.Karim Age-35 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 4. Sk.Ayyub s/o Sk.Karim Age-30 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad 5. Shambi w/o Sk.Feroz Age-30 years, Occ-Household R/o Bidkin, Tq-Paithan, Dist-Aurangabad 6. Shakila bee w/o Ajij Age-42 years, Occ-Household R/o Bidkin, Tq-Paithan, Dist-Aurangabad 7. Sk.Noor Sk.Karim Age-20 years, Occ-Agriculture R/o Bidkin, Tq-Paithan, Dist-Aurangabad RESPONDENTS ....... Mr.N.R.Shaikh, A.P.P. for appellant State Mr.N.S.Ghanekar, Advocate for respondents No.1 and 4 to 7 4 Mr.Jyodeep Chatterjee, Advocate for respondents No.2 and 3 ....... [CORAM : P.V.HARDAS AND A.V.POTDAR, J.J.] DATE : 1st September 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Appellants in Criminal Appeal No.230/2008 are original accused No.4 and 11 in Sessions Case No.6/2006. They are convicted for an offence punishable u/s 304 Part I r/w section 149 and u/s 147 of the Indian Penal Code. Accused No.4 was also convicted for an offence punishable u/s 148 of the Indian Penal Code. Accused No.4 was sentenced to suffer Rigorous Imprisonment for years and to pay a fine in the sum of Rs.3000/-, in default, to suffer further Rigorous Imprisonment for one year for the offence punishable u/s 304 Part I r/w section 149 of the Indian Penal Code. Accused No.11 was sentenced to suffer Rigorous Imprisonment for 8 years and to pay a fine in the sum of Rs.3000/-, in default to suffer further Rigorous Imprisonment for one year for the offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code. Both these accused were sentenced to suffer Rigorous Imprisonment for one year u/s 147 of the Indian Penal Code. Accused No.4 was also sentenced to suffer Rigorous Imprisonment for one year for an offence punishable u/s 148 of the Indian Penal Code. All the substantive sentences were to run concurrently. 5 Appellants In Criminal Appeal No.231/2008 are original accused No.2 and 3 in Sessions Case No.6/2006 and both of them were convicted for an offence punishable u/s 304 Part I r/w 149 of the Indian Penal Code and u/s 147 of the Indian Penal Code. Both these appellants were sentenced to suffer Rigorous Imprisonment for 8 years and to pay a fine of Rs.3000/- each and in default, to suffer further Rigorous Imprisonment for one year. Both these appellants were also sentenced to suffer further Rigorous Imprisonment for one year for the offence punishable u/s 147 of the Indian Penal Code. All the substantive sentences were to run concurrently. Appellants in Criminal Appeal No.482/2007 are original accused No.1, 5 and 9 in Sessions Case No.6/2006. All these appellants were convicted for an offence punishable u/s 304 Part I read with section 149 and u/s 147 of the Indian Penal Code. All these appellants were sentenced to suffer Rigorous Imprisonment for a period of 3 years and to pay a fine of Rs.3000/- each and in default, to suffer further Rigorous Imprisonment of one year. All these appellants were also sentenced to suffer Rigorous Imprisonment for one year for the offence punishable u/s 147 of the Indian Penal Code. All the substantive sentences were to run concurrently. By these three criminal appeals, the appellants-original 6 accused No.1 to 5, 9 and 11, have challenged the judgment and order dated 22.12.2007 passed by Ad Hoc Additional Sessions Judge-4, Aurangabad in Sessions Case No.6/2006. The State has also assailed the same judgment, by preferring Criminal Appeal No.264/2008 and prayed for enhancement of the sentence and convict the accused for an offence punishable u/s 302 r/w 149 of the Indian Penal Code. 02. As all these four appeals filed by the accused and State, respectively, arise out of judgment and order dated 22.12.2007 in Sessions Case No.6/2006, they are being disposed of by this common judgment. 03. All the appellants will be referred by their nomenclature in the impugned judgment. 04. The facts, in nut shell, which gave rise to file the present appeals can be summarized thus - a) Agricultural land of deceased Gorakh Chaudhari, Machhindra Chaudhary and the accused persons are situated adjacent to each other at Bidkin, Tq-Paithan, Dist-Aurangabad. There was old boundary dispute between the parties. Land of the deceased is locally known as “Barad”. 7 b) On 29th January 2006 at about 6.00 a.m. or so, deceased Gorakh was giving water to the standing wheat crop in the said field. At about 10.30 a.m. the accused along with 4/5 unknown persons, armed with deadly weapons, entered in the field and accused No.1 Shaikh Karim took up quarrel with deceased Gorakh on account of damage to the common boundary. During the said process accused No.3 Shaikh Firoz inflicted stick blow on the head of deceased Gorakh while accused No.4 Shaikh Ayyub and accused No.11 Shaikh Noor gave blow of axe on the legs, writs and palms of Gorakh. On hearing shouts of Gorakh, his brother Machhindra and Mangala-wife of Machhindra, rushed to the spot and they were also assaulted by the appellants and others, by means of axe and sticks. Due to the said assault all the three- Gorakh, Machhindra and Mangala, collapsed on the spot. Thereafter the accused and others ran away from the spot. The incident was informed to the police. After arrival of the police the injured were initially taken to the Primary Health Centre, Bidkin where the injured were examined by Dr.Govardhan Doiphode (PW-8). The Medical Officer had opined that Gorakh was in a position to give statement. Thereafter, his statement was recorded by PSI Tulshiram Dhumal (PW-9). On the basis of the said statement (Exhibit-66) an offence at Crime No.9/2006 was registered with Bidkin police station against the appellants and others for an offence punishable u/s 143, 147, 148, 149, 324, 323, 504 of the Indian Penal Code. Dr.Govardhan (PW-8), considering the nature of injuries sustained by the injured, advised to refer 8 them to Ghati Hospital, Aurangabad for further treatment. c) Investigation in Crime No.9/2006 was handed over to API Sampat Sakharam Shinde (PW-14). During the course of investigation, he visited the spot and drew spot Panchanama (Exhibit-49). On 29.01.2006 itself he arrested accused No.1, 2, 3, 4 and 5. Investigating Officer also seized clothes on the persons of the accused under various Panchanamas. d) Injured Gorakh was reported to be dead while taking treatment in Ghati Hospital Aurangabad on 30.01.2006. Autopsy was conducted on his dead body by Dr.Ramkrishna Bhusale (PW-13). The Post Mortem report in respect of deceased Gorakh is at Exhibit-78. As injured Gorakh, expired in the hospital, offence punishable u/s 302 of the Indian Penal Code was added in Crime No.9/2006 and thereafter original accused No.6, 7 and 8 were arrested. e) While in custody accused No.4 made disclosure statement (Exhibit-39) and at his instance an axe was recovered under Panchanama (Exhibit-40). f) Injured Machhindra also expired on 04.02.2006 while under treatment. Autopsy was conducted on his dead body by Dr.Bhusale (PW-13) and the Post Mortem report is at Exhibit-79. 9 g) While in custody, on 07.02.2006, accused No.3 Firoz made a disclosure statement and at his instance one axe was recovered. The axe was seized under Panchanama (Exhibit-33) on the same day. Similarly, on the same day on the basis of disclosure statement made by accused No.2, Kayyum one stick was recovered, and the same was seized under Panchanama (Exhibit-34). h) Original accused No., Shaikh Aziz, and original accused No.11-Shaikh Noor were arrested on 22.01.2007 while original accused No.12 Shaikh Osman was arrested on 01.09.2006. i) Investigating Officer thereafter forwarded the seized articles to Chemical Analyzer along with forwarding letter (Exhibit-88). He also collected relevant documents in respect of previous litigation between the parties (Exhibit-89 and 98). The Investigating Officer had also collected MLC record from Ghati Hospital (Exhibit-116) and after completion of investigation, submitted charge sheet against the accused. After passing of necessary committal order, the matter was committed to the Court of Sessions, Aurangabad. j) Initially, charge sheet was filed against accused No.1 to 9, as accused No.10, 11 and 12 were absconding. However, after their arrest, supplementary charge sheet was filed against them in Sessions Case Nos. 32/2007 and 33/2007. Thereafter, the trial against all the accused was amalgamated and joint trial was 10 conducted. Initially, on 20.06.2006 charge was framed against 9 accused only for an offence punishable u/s 302 r/w 149, u/s 143, 147, 148, u/s 324 r/w 149 u/s 323 r/w 149 u/s 504 r/w 149 and u/s 120 B of the Indian Penal Code. Subsequently, on 20.02.2007, the charge was altered and framed against all the 12 accused as two sessions cases No.32/2007 and 33/2007 were clubbed in Sessions Case No.6/2006. All the accused pleaded not guilty of the charge and claimed to be tried. 05. It appears that to substantiate the charge leveled against all the accused, the prosecution examined 15 witnesses. Prosecution Witness No.1 Raghunath Mohan Rathod, was a Pancha witness in respect of seizure Panchanamas of the clothes on the persons of accused No.2 (Exhibit-28) and accused No.3 (Exhibit-29) who identified Articles No.1 to 4 as the clothes were seized in his presence from the person of accused No.2 and 3. Prosecution Witness No.2, Vithal Baburao Teke, was also a Pancha Witness to the disclosure statement made by accused No.3 Firoz on 07.02.2006 (Exhibit-31), disclosure statement of accused No.2, Shaikh Kayyum (Exhibit-32) Seizure Panchanama of recovery of axe Article 12 at the instance of accused No.3 Firoz (Exhibit-33) and seizure Panchanama of wooden log, Article 13 at the instance of accused No.2 Kayyum (Exhibit-34). Prosecution Witness No.3, Vishwanath Bhikan Sankh, was also a Pancha to the inquest Panchanama conducted on the body of deceased Machhindra on 04.02.2006 (Exhibit-36). Prosecution witness No.4, Ashok 11 Marotrao Hiwale, was a Pancha witness to the inquest Panchanama drawn on 30.01.2006 on the dead body of Gorakh (Exhibit-38), Pancha to the disclosure statement made by accused No.4 Ayyub on 03.02.2006 (Exhibit-39) and Pancha to the seizure Panchanama of recovery of Article No.8, an axe, at the instance of accused No.4 Ayyub (Exhibit-40). Prosecution witness No.5 Dnyaneshwar Vinayak, was a Pancha witness to the Panchanama of the place of offence (Exhibit-49). Prosecution also examined Witness No.6 Raju Nanabhau Chaudhari, brother of deceased (Exhibit-54) and Witness No.7 Mangala Machhindra Chaudhary, an eye witness to the incident (Exhibit-58), whose statement was recorded on 30.01.2006. Prosecution further examined witness No. 8, Dr.Govardhan, Doiphode, (Exhibit-65), Medical Officer, attached to Primary Health Center Bidkin, who had initially examined deceased Gorakh and Machhindra and had certified that Gorakh was in a position to give statement and in whose presence statement of injured Gorakh was recorded by PW-9 PSI Tulsiram Dhumal (Exhibit-66) on the basis of which the First Information Report was registered. Prosecution Witness No.10, Vishnu Pandurang Kolge, was a Panch witness to the seizure Panchanama of clothes on the person of deceased Machhindra (Exhibit-70), who identified the clothes of Machhindra as Articles No.9, and 11. Prosecution Witness No.11 Baban Nana Thange, was a Pancha Witness to the seizure Panchanama of seizure of clothes of accused No.2 Kayyum, Articles 1 and 2 (Exhibit-28) so also seizure Panchanama of clothes on the person of accused No.3 Firoz 12 (Exhibit-29). Prosecution Witness No.12, Uddhav Ramkrishna Kokate, was a Pancha witness to the seizure Panchanama of clothes on the person of deceased Gorakh, under Articles 5, 6, and 7 on 30.01.2006 (Exhibit-73). PW-13 Dr.Bhusale, who conducted Post Mortem on the dead body of deceased Gorakh and Machhindra and prepared report (Exhibit-78 and 79) identified the said reports. PW-14 Sampat Sakharam Shinde, who registered Crime No.9/2006 on 29.01.2006 and investigated the matter also deposed about the conduct of the investigation. PW-15, Dr.Santosh Naikwade, who was attached to Ghati Hospital, Aurangabad as Casualty Medical Officer on 29.01.2006 and had initially examined Gorakh and Machhindra and had made entries in the MLC register about examination of Gorakh and Machhindra in the afternoon of 29.01.2006 deposed about the same before the Court. 6. After recording of the evidence of the prosecution witnesses, trial Court recorded the statements of the accused persons. Their defence was of total denial. Thereafter, after hearing rival submissions, the trial court acquitted original accused No.6, 7, 8, 10 and 12 of all the charges and convicted accused No.1 to 5, 9 and 11 and sentenced accordingly. 7. The accused who were convicted so also the State questioned the legality of the said judgment in the present appeals. 8. It appears that the trial court based foundation for 13 conviction on the medical evidence as well as on evidence of eye witness Mangala PW-7 and also the dying declaration of Gorakh, recorded by PW-7 PSI Dhumal. 9. With the assistance of learned counsel for the parties we have perused the entire record and proceedings. In the light of that, it is necessary to re-appreciate the evidence of the material witnesses. 10. It transpired from the evidence of PW-7 Mangala Machhindra Chaudhari, wife of deceased Machhindra that on the day of the incident, Gorakh was giving water to the standing wheat crop in their own field while she, along with her husband-deceased Machhindra, was working in the land of Shamrao Shinde. Accused No.1 Karim and his four sons, accused No.2 to 4 and 11, along with female folks, were present in their field. They assaulted Gorakh on the count that the common boundary was damaged. On hearing shouts of Gorakh, she, along with her husband- deceased Machhindra, rushed to the spot. The accused were assaulting Gorakh with axe and sticks and was abusing him in filthy language. When Machhindra tried to intervene, he was also assaulted by means of sticks and blunt edge of axe. Gorakh was assaulted all over his body, head and legs and Machhindra was assaulted on his face, neck and back. PW-7 Mangala was also assaulted by female members with fists and kick blows. According to Mangala, accused No.11, Noor, accused No.4 Ayyub and accused 14 No.6 Farooq were having axes in their hands while accused No.1, Karim, accused No.2 Kayyum, accused No.7 Taher, accused No. Aziz and accused No.12 Osman, were holding sticks in their hands. Due to the assault, PW-7 Mangala as well as Gorakh and Machhindra collapsed in the field, thereafter all the accused flee from the spot and after sometime police vehicle came in the field, picked up the injured and took them to the Primary Health Center, Bidkin from where they were taken to Government Medical College Hospital, Aurangabad. According to her all the injured were admitted in Ghati hospital where on the next day Gorakh succumbed to the injuries while Machhindra expired after four days thereafter. She was cross examined at length by the defense counsel in which certain facts were brought on record like land of the accused was on lower level whereas their land was on higher level. According to her, she was at the distance of about 10 feet at the relevant time. In their own field, there was standing wheat crop while in the field of Shamrao Shinde, where she and Machhindra were working, was also a standing crop of wheat. According to her, the place, where Gorakh was assaulted, was at a audible and visible distance from the field, where she and Machhindra were working. She has also stated in her cross examination that all of them were assaulted in their field where Gorakh was giving water to the standing wheat crop. She volunteered that after the assault, the assailants took them in their field. She has specifically stated 15 that she is not familiar with the names of all the accused, however she knew them by face. According to her, when her statement was recorded, all the accused were present in the police station. Her statement was recorded by the police prior to demise of her husband Machhindra. She further admitted in the cross- examination that earlier she was not aware about the names of all the accused and even till recording of her cross-examination she was not knowing names of all the accused. She has specifically stated in her cross-examination that she was beaten by sticks and axe and the injuries sustained by her were shown to the Medical Officer at Bidkin and accordingly she was referred to Ghati Hospital, Aurangabad for further treatment. She had also shown injuries sustained by her to the medical officer in Ghati Hospital, Aurangabad. She was provided medical treatment at Primary Health Center, Bidkin and even at Ghati Hospital. Thereafter she was discharged from Ghati Hospital on the next day. She denied the suggestion that on the date of the incident Gorakh and Machhindra were allowed to go after their initial medical examination. She has further stated in her cross-examination that before the injured were brought at Primary Health Center, Bidkin, they were taken to Bidkin police station. According to her, she had not narrated anything about the incident to the police officials, who picked up the injured to Bidkin Primary Health Center, in a police jeep. The evidential value of the version of this alleged eye witness will be discussed in later part of the judgment. 16 11. Evidence of PW-8 Dr.Doiphode is material on two aspects. After the alleged incident, the injured were immediately taken to Primary Health Center, Bidkin and in his presence and after he certified, PSI Dhumal (PW-9) recorded statement of Gorakh. It transpired in the evidence of this witness that on 29.01.2006, he was present in Primary Health Center, Bidkin, as Medical Officer. One police constable, V.V.Sali brought injured Gorakh and Machhindra for medical examination and treatment in Primary Health Center and on his inquiry about the injuries, history of assault was given. He noticed head injury and injuries on the legs during the examination of Gorakh and bleeding injuries on back and legs were noticed during the examination of Machhindra. Considering the nature of the injuries and the condition of the injured, he advised to shift them for further treatment to Ghati Hospital, Aurangabad. A letter of request (Exhibit-68) was given to him by PW-9 PSI Dhumal to certify as to whether Gorakh was in a condition to give statement or not. On the said letter he had put an endorsement that Gorakh was conscious and fit for giving statement. In his presence, statement of Gorakh was recorded, as given by him, by PW-8 PSI Dhumal. According to him, after statement of Gorakh was recorded it was read over to him, which he admitted to be true and correct and thereafter in his presence Gorakh put his thumb impression on the said statement. Witness identified Exhibit-66, as the statement of Gorakh, which was treated as FIR in this case. 17 In his cross examination, this witness has stated that he has made entries in the MLC register in respect of examination of Gorakh and Machhindra. At the time of his examination in the Court, it appears that, he had brought the MLC register. He has specifically stated that he did not maintain any other case papers other than the MLC register in respect of the medical examination of the injured. At about 12.45 noon, he had referred the injured to Ghati Hospital, Aurangabad. On perusal of the injuries in the MLC register, he has stated that he had not examined injured Mangala on that day. He has specifically admitted that Gorakh and Machhindra were conscious when they were brought to the Primary Health Center, Bidkin. There was no injury to the neck of Machhindra. No evidence of attempt of throttling or strangulation was noticed by him on the neck of injured Machhindra. The injuries noticed by him on the person of both the injured have been mentioned in the MLC register. This Court has taken a note of the fact that surprisingly, though it appears from the record and proceedings that when evidence of this witness was being recorded, MLC register was brought by him, however neither the Court nor prosecution or defense has taken care to produce the said MLC register in the evidence and got the same exhibited, after the injuries mentioned therein were proved through this witness. Evidential value of the version of this witness will be discussed in the later part of the judgment. 12. It transpired from the evidence of PW-9 PSI Dhumal 18 that on 29th January 2006, he was working as PSI, Bidkin Police Station and on receipt of information he had visited the spot on the directions of his superiors and picked up the injured Gorakh, Machhindra and Mangala from the spot, initially to the police station and subsequently to Primary Health Center, Bidkin. According to this witness, Gorakh and Machhindra had sustained multiple injuries. He has also stated that Medical Officer Dr.Doiphode had examined both the injured. On the request letter (Exhibit-68) given by him, an endorsement was made by Dr.Doiphode that injured Gorakh was conscious and was in a position to give statement. Thereafter, after making preliminary inquiry, he recorded the statement of Gorakh (Exhibit-66). Dr.Doiphode was present at the time of recording of statement of Gorakh, which was recorded as given by Gorakh. Accordingly, Dr.Doiphode had made an endorsement on the said statement in respect of fitness of Gorakh. On the basis of this statement, offence was registered against the accused at Crime No.9/2006. Further he has stated that the statement (Exhibit-66) was recorded by him, as stated by Gorakh and was taken down by Constable Bighot. He identified the thumb impression of Gorakh on the statement (Exhibit-66) as well as endorsement made by Dr.Doiphode. He has also given details about the statement given by Gorakh in his statement recorded by him. It further transpired from the evidence that during the further investigation, he had assisted Police Inspector Shinde, PW-14, as he had recorded the disclosure statement of accused No.3 Firoz (Exhibit-31), which had 19 resulted in the recovery of axe, which was seized under Panchanama (Exhibit-33). He had also recorded the disclosure statement of accused No.2 Kayyum (Exhibit-32), which resulted in recovery of a stick, which was seized under Panchanama (Exhibit-34). He identified the seized articles, as Articles No.12 and 13 before the trial Court. It revealed from the cross-examination of this witness that Gorakh had not stated names of all the persons who were party to the assault. He could not get the information after recording the statement of Gorakh, as to who had specifically assaulted Machhindra amongst the accused. Usual suggestions were given to him that he knew the spot from where Articles 12 and 13 were recovered, as he had earlier visited the spot along with the Investigating Officer. He has admitted that the Articles were recovered at the distance of 25 to 30 feet from the place where the injured were lying. It is to be noted that from the cross- examination of this witness that there was no challenge that the injured were picked up from the