1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR. Criminal Appeal No. 395 of 1997. APPELLANT : State of Maharashtra -VERSUS- RESPONDENTS : 1. Punjab S/o Shankarrao Nehare, aged 40 years, 2. Ankush S/o Panjabrao Nehare, Aged 17 years, 3. Shankar S/o Panjabrao Nehare, aged 19 years, 4. Prabhakar S/o Anandrao Borje, aged about 22 years, 5. Anil S/o Shankarrao Nehare, aged about 38 years, 6. Sau. Lila W/o Panjabrao Nehare, aged about 38 years, 7. Sau. Kausallya W/o Damodhar Nehare, aged about 42 years, 8. Sau. Gayabai W/o Chirkuta Raut, aged about 60 years, All resident of Jungad, P. S. Seloo, Tahsil Seloo, District Wardha. Shri T. A. Mirza, APP for the appellant. Shri R. M. Daga, Advocate for Respondents No.1 to 3 and 6 to 8. Shri Shashibhushan Wahane, Advocate for Respondents No.4 & 5. 2 CORAM: A. H. JOSHI AND R.C. CHAVAN JJ. DATED: 5th FEBRUARY 2009. ORAL JUDGMENT :( Per A. H. Joshi, J) 1. This is an appeal by State. 2. The accused were charged for the offence punishable under Section 147, 148, 302 r/w Sec.149, 323 r/w Section 149 of the Indian Penal Code. 3. By Judgment and Order, the learned Sessions Judge has convicted the accused Punjab - Respondent No.2 and Ankush – Respondent No.2 under Section 304(II) of Indian Penal Code and they were sentenced to suffer R. I. for five years each. Further the accused Punjab was convicted for the offence punishable under Section 323 of the Indian Penal Code and is sentenced to suffer R. I. for one year. Learned Sessions Judge has acquitted the accused No.3 to 8 for the offence of which they are charged. 4. The appeal is filed for the object namely that all the accused should be convicted for offence punishable under Section 302 of Indian Penal Code by altering the conviction and sentence. 5. Heard Learned APP Mr. T. A. Mirza for the 3 State and Learned Advocates Mr. R. M. Daga and Mr. Shashibhushan Wahane for the respondents. 6. Perused the Judgment, testimonies of various witnesses and other evidence on record. 7. It is seen from the Judgment that learned Sessions Judge held in paras no.13 to 16 as to guilt of different accused as follows :- (a) As to other accused except accused No.1 Punjab and accused No.2 Ankush : “13. The prosecution has examined P.W.4 Vasanta Satghare as an eye witness. He deposed (Exh.38) that accused Punjab, Kausallyabai and Gayabai were assaulting Santosh. I have pointed out earlier that from the testimony of P.W. 1 Rukhamabai Nehare and P.W.2 Radhabai Nehare it reveals that the prosecution has not proved beyond reasonable doubt that except accused Punjab and Ankush, rest of the accused assaulted victim Santosh. Because from the testimony of P.W. 1 Rukhamabai Nehare, she stated that accused Kausallyabai and Gayabai were giving blows to victim Santosh. This fact has not been stated by P.W.4 Vasanta Satghare. He is silent by which weapon accused Kausallyabai and Gayabai were assaulting Santosh. He stated in his deposition that accused Punjab was having a chain and he was assaulting Govinda with the said weapon. Whether the prosecution has proved the said fact, can be considered at proper stage. But one fact is clear from the testimony of P.W.4 Vasanta Satghare that accused Punjab was having a chain. So, though he specifically did not state in his deposition that accused Punjab assaulted victim Santosh with chain, but from medical evidence it is clear that victim Santosh sustained injury of chain and hence, I hold 4 that his testimony, i.e. the testimony of P.W.4 Vasant Satghare should have to be considered from the said angle.” [Quoted from page 209 & 210 of Criminal Appeal Paper Book] (b) As to accused Punjab and Ankush as under : “14. So, considering the evidence of P.W. 1 Rukhamabai Nehare, P.W.2 Radhabai Nehare, P.W.4 Vasanta Satghare, I hold that the prosecution has proved that accused Punjab and Ankush assaulted Santosh with chain and knife respectively.” 15. From the deposition of P.W.5 Govinda Nehare who was injured in the incident, it reveals that the said witness was not present when the accused Punjab and Ankush assaulted victim Santosh. He deposed (Ex.39) that he was assaulted by accused Punjab. Hence, Santosh intervened to rescue him and he ran away at his home. When he came out from the house he was that Santosh was succumed to death. Thus, his testimony is not useful for the prosecution to say that his evidence is corroborative one on the point of assault made by accused Punjab and Ankush to victim Santosh with chain and knife respectively. P.W 6 Gajanan Ketkar (Ex.40) the another alleged eye witness did not support to the prosecution story. It is the defence of the accused that victim Santosh came on the spot with Ubhari. The said witness stated the said fact in his testimony. According to him, accused Punjab concealed himself when Santosh assaulted accused Punjab with Ubhari. Curious enough, a new defence has been taken by the accused at the time of examination of P.W.6 Gajanan Ketkar. It is to be noted here that the accused took many defences at the time of recording evidence of prosecution witnesses but the said defences are weak and hence, it cannot be said that the prosecution has failed to prove the guilt against any of the accused beyond reasonable doubt. The said witness P.W.6 Gajanan Ketkar has been declared as hostile by the prosecution 5 because he did not support the prosecution story. In his cross-examination taken by learned A.P.P. for the state, nothing has been come out from the said witness which favours to the prosecution story. In such circumstances, I hold that his testimony should be discarded. 16. After considering the direct evidence led by the prosecution, I hold that it has proved the guilt against accused Punjab and accused Ankush who assaulted victim Santosh with chain and knife respectively. ...” [Quoted from pages 210 & 212 of Criminal Appeal Paper Book] 8. Now it is the turn of prosecution to demonstrate that the accused No.3 to 8 were involved in the commission of crime. 9. On re-appreciation of evidence, it does not reveal that there is unanimity amongst the deposition of witnesses as to particular accused, the weapon and the injury. 10. In fact, no weapon is seen proved by any witness with corroboration by any other that accused No.6, 7 & 8 had any weapon whatsoever. 11. It is seen from the testimony of PW-1 as compared to the evidence of other witness that her testimony is comprehensive and as noted in para 8 to 10 above, she is firm on what she alleges against the 6 accused No.1 & 2. 12. She admits in cross examination illicit relations between Govinda PW-5 and Panchphula and dispute due to Govinda's abusing Panchphula. 13. On the other hand, P.W.2 narrates in her examination certain thing which is not the version nor it is corroborated by other witnesses that :- “ Accused Lilabai caught the penis of Santosh. Accused Kausallyabai was having stick. [Quoted from page 49 of Criminal Appeal Book] 14. PW-2 further admits in cross examination as follows:- “2. I do not know where quarrel took place between Govinda and Panchafula. I heard the noise of quarrel from the house of Panchafula. It is not true that Santosh came out from the house and went there after he heard the noise of quarrel. Scuffle was going on at the bridge after Santosh reached there. I do not know as to whether accused Punjab was taken away at the house of Anandrao Borje. Govinda and Santosh were standing opposite to the house Anandrao Borje. My husband was having a stick. I do not know as to whether Santosh had gone with Ubhari. It is not true that Santosh attempted to assault accused Ankush with Ubhari and Ankush resited the same. Ankush did not sustain bleeding injury. I had no knowledge as to whether accused punjab sustained injury on his head. It is not true that accused no.4 & 5 have no any 7 means in their hands. .....” ......I stated before the police in my statement that accused Prabhakar Borje was having a stick. But I do not able to state as to why police did not write the said fact in my statement. Prior to my marriage one year before the incident Govinda was having illicit relations with Panchafula. Their relations became strained since before the incident. 3. Govinda told me that villagers were alleging that he is doing magic. The quarrel was going on for about 1 ½ hour. Persons were assembled on the spot before I came out on the spot. I saw that Santosh was lying near the house of Borje. I saw first time that Santosh was lying near the house of Borje. Prior to that villagers assembled around Santosh. They were saying that Santosh is dead. Then I went to Govinda to state the said fact. Police recorded my statement 1 or 2 days after the incident. Police did not recored my statement on the day of incident. I stated before the police that when I asked Govinda what happened, he replied that accused Punjab having chain, and accused Ankush was having knife and accused Punjab was having chain, and accused Gayabai were assaulting Santosh with stick, and accused Punjab assaulted Santosh with chain. But I do not able to state as to why police did not write said facts in my statement. It is not true that I was inside the house with my husband and I have not seen the incident. ...” [Quoted from page 50 & 51 of Criminal Appeal Paper Book] 15. Witnesses are also divided on injuries to accused No.1 & 2. 16. It has come in the evidence of PW-6 who is declared hostile that Santosh the deceased had 8 assaulted Punjab accused No.1 by Ubhari. Though this witness has been declared hostile, this statement by him corroborates and proves too, the fact admitted by PW-2 that Punjab had suffered injuries. 17. Sum effect of the evaluation on re- appreciation of evidence is that there was a quarrel followed by a scuffle going between two groups. Accused had suffered injuries. Because death of Santosh has occurred, opposite party - whole family has been named as accused. Barring the fact of death and assault by knife, no other fact is proved. 18. Fact of quarrel is also admitted by PW-5 Vasant S/o Narayan Satghare. Except PW-5 all other prosecution witnesses are PW-1 Rukhmabai W/o Santosh Nehare, PW-2 Mrs. Radhabai W/o Govinda Nehare, PW-4 Vasant Narayan Satghare and PW-5 Govinda Gomaji Nehare. These witnesses are related to deceased Santosh as can be seen ex facie as wife, son, wife of brother and real brother. 19. The facts & evidence discussed in foregoing paras throws light on the quality of evidence and the investigation too. 20. Prosecution could have come out with proper 9 investigation, independent witnesses and offence of affray followed by other offences as may have been found, prosecution has rather chosen a simple and slip shod way of siding one group and persecuting the other, and in the result, has aggravated the crime than one it was. 21. In these premises this Court holds that appreciation of evidence and conclusions reached by learned Sessions Judge cannot be faulted with much less regarded as perverse. 22. Appeal has no merit and is dismissed. JUDGE JUDGE //MULEY//