IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.348 OF 2005 1. Santosh Janglinath Kale, Age 25 years, Occ. Agriculturist. 2. Nagnath Bhimrao Kale, Age 29 years, Occ. Agriculturist. 3. Prabhakar Bhimrao Kale, Age 45 years, Occ. Agriculturist. 4. Bibhishan Bhimrao Kale, Age 25 years, Occ. Agriculturist. 5. Jalindar Vishnu Kale, Age 31 years, Occ. Agriculturist. 6. Dilip Janglinath Kale, Age 31 years, Occ. Service. All resident of Pomalwadi, Tal. Karmala, Dist. Solapur. Presently lodged in Solapur Jail, Solapur. ..Appellants. (Org. Accused Nos.1,3,4,5,6 & 9) The State of Maharashtra. ..Respondent. Mrs. Revati Mohite Dare for the Appellants. Mrs. A.A. Mane,A.P.P. for the State. CORAM: R.S. MOHITE, J. DATE : 18th September, 2008 ORAL JUDGMENT : 1. This is an appeal filed by six appellants. Appellant Santosh Janglinath Kale was the original accused No.1, Appellant Nagnath Bhimrao Kale was the original accused No.3, Appellant Prabhakar Bhimrao Kale was the original accused No.4, Appellant Bibhishan Bhimrao Kale was the original accused No.5, Appellant Jalindar Vishnu Kale was the original accused No.6 and Appellant Dilip Janglinath Kale was the original accused No.9. The appellants impugn a :2: judgment and order passed by the II Additional Sessions Judge, Solapur on 18.3.2003 in Sessions Case No.189 of 2001. By the impugned judgment and order the accused were convicted and sentenced as under. i) Accused No.1 Santosh, accused No.4- Prabhakar and accused No.6 Jalinder were convicted for an offence punishable under Section -304 Part-II read with 34 of the I.P.C. and they were sentenced to suffer R.I. for eight years and to pay a fine of Rs.2000/- each in default to suffer R.I. for three months. ii) Accused No.3 Nagnath, and Accused No.9 Dilip were convicted for an offence punishable under Section 325 read with 34 of the I.P.C. and sentenced to suffer R.I. for four years and to pay a fine of Rs.1000/-each in default to suffer R.I. for two months. iii) Accused No.5 Bibhishan and Accused No.6 Jalinder were convicted for an offence punishable under Section 325 read with 34 of the I.P.C. and they were sentenced to suffer R.I. for four years and to pay a fine of Rs.1000/- each in default to suffer R.I. for two months. :3: iv) All the accused were acquitted of the other offences and were granted set off permissible under law. 2. The brief facts of the case were as follows. a) That the family of one Ramkrishana Patil was residing in a Village Pomal Wadi,Tal. Karnala, District Solapur. Goddess Pomai was Gram Daivat of Village Pomalwadi and in the honour of Goddess Pomai, an annual fair used to be held in the village . In the year 2001, the fair was scheduled to begin on 27.4.2001. The honour of performing a pooja and holding a procession of the idol of the Goddess was given to the family of Ramkrishana Patil.Ramkrishana Patil had two sons i.e. Santosh Patil and the deceased Hanumant Patil. b) On 27.4.2001, after completing the worship of the goddess Pomai, the procession started at about 10.30p.m. The said procession was of a palanquin of goddess Pomai. In front of palanquin of goddess Pomai there was a banjo player and behind the palanquin of goddess Pomai there was a tractor having a generator and halogen lamps on it. Ramkrishana Patil deceased Hanumant, Appasaheb Patil, P.W.No.10 Ravindra Vighane, P.W.No.13 Santosh Bhanudas Kale, Vilas Mohan Kale and :4: Ajit Vighane were amongst the people in the procession. At about 11.30p.m. the procession reached a spot in front of the house of Vilas Bhanudas Shelar. c) In front of the house of P.W.No.1 Vilas Shelar accused No.3 Nagnath pelted a stone towards the deceased Hanumant and the said stone hit Hanumant. Hanumant rushed towards his brother P.W.No.9 Suryakant shouting "save me".That thereafter, all of a sudden Janglinath Raghunath kale, accused No.9- Dilip Janglinath Kale, Manoj Janglinath Kale, accused No.1- Santosh, accused No.4- Prabhakar Kale, Tatya Kale, accused No.3, Nagnath, accused No.5 Bibhishan, accused No.6 Jalinder and one Balasaheb came to the spot. The accused No.1 Santosh, accused No.9 Dilip Kale and accused No.3 Nagnath were carrying swords. Accused No.4 Prabhakar and accused No.6 Jalinder were carrying knives. d) Accused No.1 Santosh Kale gave a blow of the sword to Hanumant. Accused No.9 Dilip also gave a blow of sword to Hanumant, Accused No.4 Prabhakar gave a blow of knife on the head of his brother. Accused No.6 Jalinder gave a knife blow to Hanumant. The other accused beat the deceased Hanumant by swords. Accused No.6 Jalinder Kale gave a blow of knife to Ravindra Vighane and accused No.3 Bibhishan hit :5: Ravindra by a stone and a stick in such force that four teeth of Ravindra Vighane were fell out. P.W.No.9 Suryakant suffered minor injuries due to stone pelting. e) Out of the incident admittedly two cross cases came to be filed.P.W.No.9 Suryakant Ramkrishana Patil and his father were arrested by the police. It is not disputed that five accused persons also suffered injuries out of which the injury caused to accused No.9 Dilip was described by the Doctor as a grievous injury inflicted by a sharp cutting instrument like sword. The fact that this was grievous injury was opined by the doctors the tendons of the right hand of Dilip Kale was cut. f) The police recorded the complaint of P.W.No.9 Suryakant Patil and the same was treated as the F.I.R. The investigation was taken over by the Investigating officer- P.W.No.6 Police Inspector Mohan Vidhale. He sent the body of Hanumant to the Cottage Hospital at Karnala for a post mortem. After recording the F.I.R., he went to the Cottage hospital and prepared an inquest panchanama (at Exh.58) .After post mortem, he obtained an advance death certificate. He also registered C.R.No.80 of 2001 on the basis of the cross complaint made by the accused No.1 Santosh Kale. He found that except the clothes of Manoj Kale, the :6: clothes of other accused had red stains and therefore, he seized the clothes of the accused. He then went to the spot of the incident and prepared a spot panchanama (Exh.70). From the spot of the incident he seized a wrist watch, soil mixed with blood and certain stones. On 28.4.2001, he recorded the statement of Santosh Bhanudas Kale and injured P.W.No.10 Ravindra Vighane. On the same day, P.S.O. Patil seized the clothes of the deceased under a panchanama Exh.48. On 28.4.2001, the Investigating Officer sent Ravindra Vighane, Suryakant Patil, Ramkrishana Patil and Appasaheb Patil for a medical examination to the Cottage Hospital,Karmala. On 29.4.2001, he recorded the statement of Sanjay Baban Kale. On 3.5.2001 the accused Santosh Kale gave a memorandum statement, in pursuance of which a sword was discovered from the sugar-cane crop of his land. On 4.5.2001, accused No.4 Prabhakar gave a memorandum statement in pursuance of which a knife was recovered from a cluster of cactus. These facts were recorded in the panchanama Exh.37. On 7.5.2001, the accused No.6 Jalinder Vishnu Kale made a voluntary statement in pursuance of which a knife was discovered from the thatched roof on the cattle shed situated adjoining to his house. These facts were recorded under a panchanama Exh.50. On 8.5.2001, the Investigating Officer took the blood samples of the accused and sent the same for analysis to the Medical Officer. On :7: 15.5.2001, the Investigating Officer sent a letter to the Tahsildar requesting him to prepare a map of the scene of offence and on the same day he arrested accused No.9 Dilip Janglinath Kale. On 25.2.2001, in pursuance of the voluntary statement made by accused Dilip Kale police discovered a sword concealed in a heap of grass near his vasti. Same was taken into custody under panchanama Exh.42. On 20.5.2001, the Investigating Officer sent a letter to the Medical Officer requesting him to collect the blood samples of the accused Dilip Kale. On 21.5.2001, the Investigating Officer sent the muddemal property along with Yadi to the Chemical Analyser along with the police constable Ghadge. On 24.5.2001, the accused Srirang was arrested and his blood sample was collected on 29.5.2001. On 21.8.2001, the Investigating Officer arrested the accused Arjun Kale and on 23.8.2001 he sent a letter to the Medical Officer for collecting the blood of the accused. On 26.9.2001, the Investigating officer arrested the accused Janglinath Rangnath Kale and on the same day he sent him to the Medical Officer for collecting his blood sample. All these blood samples were sent to the Chemical Analyser, Pune. On 25.10.2001, the Investigating Officer submitted a charge-sheet in the court of J.M.F.C. Karnala. The C.A. reports were ultimately produced and exhibited in the trial at Exh.98 to 104. :8: 3. In due course, the matter was committed to the Court of Sessions for trial and the charges came to be framed. In order to prove its case, the prosecution examined as many as 16-witnesses, reference to some of whom was already made hereinbefore. Of these P.W.No.9 Suryakant Ramkrishana Patil and P.W.No.10 Ravindra S. Vighane were the injured eye witnesses. P.W.No.11 Vilas Bhanudas Shelar and P.W.No.13 Santosh Bhanudas Shelar were also eye witnesses examined to prove the injuries suffered by the deceased and the witnesses. The prosecution also examined Dr. Ashro Shinde to prove the injuries of P.W.No.9 Suryakant Patil and P.W.No.10 Ravindra Vighane. Various panchas were examined to prove the recoveries, seizure of clothes of the accused and the spot and inquest panchanamas. Two Police constables were examined of which P.W.No.15 had carried some of the articles to the Chemical Analyser and P.W.No.16 P.I. Mohan Vidhale was the Investigating Officer. 4. After recording of the 313 statement, the defence examined two witnesses. Both of them were doctors. These witnesses were examined to prove the injuries suffered by five persons including three accused. D.W.No.1 Dr. Chindanand Dodmani proved the injuries suffered by accused No.9 and D.W.No.2 Dr. Nagendrda Vansure proved the injuries suffered by :9: accused No.1 Santosh Kale, accused No.3 Nagnath and two other persons.Taking into account all the aforesaid material placed by the prosecution and the defence, by the impugned judgment and order, the trial court convicted and sentenced some of the accused as detailed hereinabove. That is how the present appeal has came to be filed by the convicted accused before this court. 5. I have heard both the sides and perused the record. 6. There are in all four eye witnesses who are P.W.No.9 Suryakant Patil, P.W.No.10- Ravindra Sarjerao Vighane,P.W.No.11 Vilas Bhanudas Shelar and P.W.No.13 Santosh Bhanudas Kale. It is not in dispute that out of these, P.W.No.9 Suryakant Patil and P.W.No.10 Ravindra Vighane were injured eye witnesses. It is also not in dispute that the grievous injury suffered by Ravindra Vighane was alleged to have been inflicted by accused No.5 Bibhishan Bhimrao Kale, by hitting a stone on his face resulting in some of his teeth falling out. The evidence further shows that out of the four eye witnesses only P.W.No.9 Suryakant Patil has attributed specific overt acts against the accused vis a vis deceased Hanumant. In so far as the present appellants are concerned the overt acts alleged by P.W.No.9 Suryakant Patil are as under. :10: a) Accused No.1 Santosh Kale gave a blow of sword to Hanumant. b) Accused No.4 Prabhakar Kale gave a blow of knife on forehead and head of the deceased Hanumant. c) Accused No.6 Jalindar Vishnu Kale gave a knife blow to witness P.W.10 Ravindra Vighane. d) Accused No.5 Bibhishan Bhimrao Kale hit witness Ravindra Vighane with a stone causing a grievous injury. 7) It is not in dispute that in so far as assault by deceased Hanumant is concerned, the other three eye witnesses have spoken about the assault in general terms. However, Ravindra Vighane has corroborated the version given by Suryakant Patil, in so far as the knife assault on him by accused No.6 -Jalinder and the stone assault on him by Bibhishan are concerned. 8. We must have now look into the injuries suffered by deceased Hanumant and the same are deposed too by P.W.No.12 Dr.Saroj Khot who proved the post mortem notes. The injuries are both external and :11: internal. They were as follows. External Injuries 1. C.L.W. on forehead above nose and left eye size 1.1/2 inch x 1-inch upto bone deep. 2. C.L.W. on left eye brow size 1/2 x 1/4 inch upto bone deep. 3. C.L.W. on right eye brow size 1.1/2 inch x 1/2 into upto bone deep. 4. Incised wound on chin size 1x1/4x1/4 inch. 5. C.L.W. on nose 1/4x1/4x1/4 inch. 6. Contusion on and above nose left side size 1"x1". Both eye ball swollen. 7. Contusion on left shoulder joint size 2"x2". 8. Incised wound on sternum obliquely size 4"x1/"x1.1.4". 9. Incised wound near left nipple size 3 inchx 1/8x1/8 inch. :12: 10. Fracture and dislocation of left index finger at proximal phalanx. 11. Multiple abrasion marks on left scapular region. 12. C.L.W. on right leg middle part and 1/2inchx1/2x1/4x1/4 inch. 13. C.L.W. on the right knee joint 1/4x1/4 inch. 14. Abrasion on the right forearm near wrist joint. INTERNAL INJURIES 1. Haemorrhage 4x4x2" on right temporal region of brain. 2. Compound fracture of right temporal region size 1" diam. 3. Fracture of middle cranial fossa. 9. The injuries suffered by P.W.No.9 Suryakant :13: Patil and P.W.No.10 Ravindra Vighane were deposed too by P.W.No.14 Dr. Ashro Shinde and they were as follows. INJURIES SUFFERED BY P.W.NO.9 i) Lumbago at L/1 to L/5 level, tenderness present. ii) Contusion on right scapular region 2"x2". INJURIES SUFFERED BY P.W.NO.10 i) Lost lower both incisor tooth, abrasion around it. This injury is caused by hard and blunt object, the age of the injury was within 24 hours and nature of injury was grievous. ii) Incised wound on upper lip, transverse 1"x1.4"x1/4". The said injury is caused by sharp object. The nature of the injury is grievous in nature and was caused within 24 hours. iii) Abrasion on left forearm, middle part inner aspect 3"x3", caused by hard and blunt object, age of the injury was within 24 hours :14: and nature of injury was simple in nature. 10. Since, we are on the question of injuries suffered during the incident, at this stage itself we may note that the injuries suffered by the various accused as sought to be proved by the defence during the evidence of D.W.No.1 Dr.Chindanand Doodmani and D.W.No.2 Dr. Narendrda Vansure. According to D.W.No.1 Dr. Doodmani, the injuries suffered by Accused No.9 Dilip Kale were as under. i) Sutured wound with swelling on right hand, it was about 6c.m. The nature of the injury was grievous, the age of the injury was within 24 hours. It can be caused by sharp weapon. ii) Blunt trauma right elbow by hard and blunt object, the nature of injury was simple and age of the injury was within 24 hours. He opined that there was rupture of tendons with restricted movements. He further opined that injury No.1 as specified aforesaid could be caused by a weapon like sword and the injury no.2 could be caused by a stick and stone. 11. As per the evidence of D.W.No.2 Dr. Vansure who was Medical Officer at Cottage Hospital, Karmala, :15: he had examined accused No.9 Dilip (at an earlier point of time ) and found a C.L.W. on his right wrist 6x2x2 c.m. and swelling just below the right elbow. He further opined that the injury was a simple injury. He then stated that he had examined accused No.1 Santosh Kale and found the following injuries on him. Contused lacerated wound over left middle finger middle phalanx. The wound was 3x1.1/2 cm. x 1.1/2 cm. in size. The nature of the injury was simple. It can be caused by sharp and blunt object.The age of injury was 5 to 6 hours. On accused No.3-Nagnath he found following injuries. Abrasion 2 cm. in length on left palm. The nature of injury was simple, the age of injury was 3 to 4 days. It could be caused by a blunt object. The patient was treated as an OPD patient. On accused No.7 Dattatraya Anandrao Patil (acquitted accused) he found following injuries. i) Abrasion healed 1 cm in length and 1/2 cm. :16: in breadth over left little finger, the age of the injury was 3 to 4 days. It could be caused by blunt sharp object. The nature of injury was simple. ii) Abrasion healed 2 cm. x1/2 cm. over right elbow. He also examined one other person by name Sanjay Kale who had suffered injuries on that day. But this Sanjay Kale was not arrayed as an accused by the prosecution. 12. It is seen that the Trial Court handed down a conviction under Section 304 Part II upon accepting a case of free fight as the evidence did not spell out the motive or the exact reason of the origin of the incident and also from the fact that five accused were also injured in the incident and that none of the prosecution witness (Except P.W.13), made a reference to the injuries suffered by accused No.9 Dilip Kale during the incident. The Trial Court found that the injuries suffered by accused No.9-Dilip Kale was a grievous injury as Dilip Kale was required to be admitted in the hospital for more than statutory period as contemplated in Section 320 of the Indian Penal Code. The trial court opined that it was for the prosecution witnesses to explain any grievous :17: wound suffered by any of the accused. It also appears that before the Trial Court the defence contended that if the theory of free fight was accepted by the court then there could be no conviction with the aid of Section 149 or 34 of the Indian Penal Code. This contention also seems to have been accepted by the Trial Court. However, I find that ultimately that the Trial Court made two groups from amongst the accused and convicted one group for committing offence under Section 304 Part II read with 34 of the Indian Penal Code and convicted the other group for committing an offence under Section 325 read with 34 of the Indian Penal Code. 13. The Advocate appearing for the accused placed reliance upon the judgment of the Apex Court in the case of Kanbi Nanji Virji and ors. Vs. State of Gujarat reported in A.I.R.1970 S.C.219 where the Apex Court in Para-8 observed as under. "The High Court has found, in our opinion, rightly, that there was a melee at the time of the incident and the two groups indulged in a free fight as a result of which four persons were injured on the side of the prosecution and two on the opposite side. A-1 and A-2 had sustained various serious injuries, several of which were incised injuries. At one stage it :18: was thought that A-2 may not survive. His condition was so precarious that it became necessary to immediately operate upon him. The deceased Sabalsing had sustained two injuries only, one out of them was a serious one. The other was a mere abrasion. The head injury proved fatal. Bhupatgar had received several injuries. Similarly, P.Ws.5 and 6 had also received several injuries, Once we come to the conclusion that the injuries sustained by the persons were in the course of a free fight, as the High Court had come to, then only those persons who are proved to have caused injuries can be held guilty for the injuries caused by them". . The Advocate for the defence further relied upon a recent judgment of the Apex Court in the case of Kanwarlal and another Vs.State of M.P. reported in 2003 Cri. L.J. 62 where the Apex Court in Para 7 observed as under. "The High Court has also noticed that P.Ws. 1,7 and 16 also received injuries in the incident. However, there was no specific evidence as to which of the accused caused these injuries; it is admitted by the witnesses that the stones were pelted from both the sides and injuries to these persons were caused by pelting of stones; it appears that there was some kind of free fight on the spot between the :19: two parties; so unless it was shown that a particular accused caused these injuries, no one can be held responsible by taking recourse to Section 149, I.P.C.". 14. Accepting the aforesaid principle and keeping in mind the nature of the injuries caused by the various accused and also suffered by them and accepting the fact, for the reasons which are mentioned in the judgment of the trial court i.e. the absence of clear motive or evidence relating to the origin of the incident, it is probable that the injuries may have been caused during an incident of a free fight between the two groups, in my view, the conviction of the accused in the present case cannot be sustained with the aid of Section 34 of the Indian Penal Code. There is nothing on record to indicate as to what was common intention of the accused. Though P.W.No.9 Suryakant Ramkrishana Patil in his evidence made some attempt to state that two of the accused i.e. Accused No.4-Prabhakar Kale and accused No.10-Janglinath Kale held a grudge on account of the fact that the management of the procession of the goddess had been given to the father of P.W.No.9 Suryakant Ramkrishana Patil and his family members and this is seen to be an omission in the F.I.R. filed by Suryakant Patil. If the individual acts attributed to the various convicted accused in this case are looked :20: into cojointly with the nature of the injuries said to have been caused by them it becomes apparent that all the injuries attributed to the accused except accused No.5 Bibhishan Kale are minor injuries. The only fatal injury in this case suffered by Hanumant was the injury was on head which caused a fracture of his skull. All the internal injuries are attributed to this head injury. The incised wounds are admitted by the Doctor to be the minor and simple injuries. This can be seen from the fact that the depth of the wound is virtually negligible. It is clear that the weapons like knives and swords said to have used by some of the accused were not used weapons for stabbing the deceased Hanumant. There is no incised wound suffered by any other injured witness. The wound suffered by Ravindra Vighene and attributed by Bibhishan Kale is however, grievous for the reason that though it was caused by stone Ravindra Vighne had to lose his two of his teeth. This fact is confirmed by the Medical evidence. In the circumstances, accepting that the accused will have to be convicted and sentenced for their individual acts, I find that the accused Nos. 1,3,6 and 9 will have to be convicted for an offence punishable under Section 324 of the I.P.C. The accused No.5 Bibhishan Kale will however have to be convicted for the offence punishable under Section 325 of the I.P.C. In so far as accused No.4 Prabhakar Bhimrao Kale who said to have used knife and caused :21: knife injury to the head or forehead of deceased Hanumant will have to be acquitted because there is no such corresponding knife injury on the head or fore head of the deceased Hanumant. It is seen that, there are only three incised wounds and if Prabhakar is acquitted then these three wounds can be attributed to accused Nos. 1,6 and 9 who according to the witnesses struck Hanumant with a sharp cutting instrument. 15. It may be stated here that the Advocate for the accused -appellants contended that the recovery evidence has been disbelieved and the Chemical Analyser’s report did not connect the weapons alleged to have been recovered from the various accused with the incident as the grouping was inconclusive. Even if that