1 Cri.Appeal No.18 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 18 OF 2011 Suman Shriram Beldar, Aged about 40 years, Residing at Ichhapur Nimkhedi, Tq. Jalgaon, District Jalgaon, Presently in custody in the Yerwada Central Prison, Yerwada, Pune ..APPELLANT (Orig. Accused No.3) VERSUS State of Maharashtra At the instance of Muktainagar Police Station ..RESPONDENT Mr P.S. Dighe, Advocate (appointed) for the appellant; Mr S.K. Tambe, Asstt. Public Prosecutor for the respondent WITH CRIMINAL APPEAL NO.17 OF 2011 Shriram s/o Harsing Beldar, Age : 50 years, Occu.Nil, R/o Nimkhedi (Bk), Tq. Muktainagar, District Jalgaon ..APPELLANT (Orig. Accused No.1) VERSUS The State of Maharashtra ..RESPONDENT (Orig. Complainant) 2 Cri.Appeal No.18 of 2011 Mr A.A. Jagatkar, Advocate (appointed) for the appellant; Mr S.K. Tambe, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 3rd August, 2011 ORAL JUDGMENT (PER P. V. HARDAS, J.) The appellants/original accused no.1 Shriram and original accused no.3 Suman stand convicted along with original accused no.2 Gajanan Shriram Beldar, for an offence punishable under section 302 read with sec. 34 and sentenced to imprisonment for life and to each pay fine of Rs.5,000/-, in default of which to undergo further R.I. for three months, by the Additional Sessions Judge, Jalgaon, by judgment dated 23.6.2010, in Sessions Case No.222 of 2007, by these appeals challenge the conviction and sentence. Criminal Appeal No.17 of 2011 has been filed by original accused no.1 Shriram while Criminal Appeal No.18 of 2011 has been filed by original accused no.3 Suman. Original accused no.2 Gajanan Shriram Beldar has not filed any appeal. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- 3 Cri.Appeal No.18 of 2011 P.W.23 P.I. Sunil Borse, who was attached to the Muktainagar police station as a Police Inspector, received information on 1.9.2007 from the Police Patil about the murder of one Bhoot Bharti Maharaj. P.W. 23 P.I. Borse, therefore, started for village Nimkhedi along with his staff. He recorded the first information report of P.W.1 Shriram at the scene of the offence at Exh.50. Thereafter he drew the inquest panchnama of the dead body of Bhoot Bharti Maharaj at Exh.74. The scene of the offence panchnama came to be drawn at Exh.73 in the presence of P.W.2 Vilas and another panch witness. From the scene of the offence blood stained mud and plain mud came to be seized. Meanwhile, on the basis of the report of P.W.1 Shriram at Exh.50 an offence had been registered. Dead body of deceased Bhoot Bharti Maharaj was referred for post mortem examination and post mortem on the dead body was conducted at the spot by P.W.20 Dr. Rane. P.W.20 Dr. Rane noticed the following external injuries on the dead body of deceased Bhoot Bharti Maharaj :- 1) Incised wound on right side of chest, infra-mammary region, transversely placed, edges are sharp and regular, blood oozing from injury. It is of the size of 14 cm x 4 cm x 3 cm upto muscle deep, rib are exposed. Inter-coastal muscle cut; 2) Incised wound on right side of chest below 3 to 4 cm. wound (1) on 10th and 11th rib, edges are sharp and margins are regular, obliquely placed of the size of 5 x 4 x 2 cm. The injury was fresh, spindle shaped; 4 Cri.Appeal No.18 of 2011 3) Incised wound on left side, transversely placed on 10th and 11th rib of the size of 8 cm x 4 cm x 2 cm. edges are sharp and margins are regular. Blood oozing through it; 4) Stab wound on left side from iliac to hypo gastric region, obliquely placed, fresh of the size of 6 cm x 4 cm deep; opened peritoneal cavity through which large intestine came out, intestine 2 cm. long and omentum also came out through wound, edges of wounds are sharp and margins regular; 5) Stab wound on left side of abdomen below wound no.4, obliquely placed through which small intestine came out, size 4 cm x 3 cm x deep opened to peritoneal cavity, margins are regular and edges sharp. Intestine cut 2 cm. long through which semi digested food came out; 6) Incised wound on right thigh anteriorly above knee joint, spindle shaped, of the size of 8 cm x 3 cm x 4 cm. up to deep muscle cut and bone exposed, vertically placed, edges are sharp and margins are regular; 7) Incised wound on left thigh laterally placed, middle of thigh anterior of the size of 10 cm x 6 cm x 8 cm up to bone. Fresh bleeding present. Edges sharp and margins regular, spindle shaped; 5 Cri.Appeal No.18 of 2011 8) Incised wound on left hand hypo thermal region of the size of 4 cm x 2 cm x 1 cm., fresh, bleeding present, edges are sharp and margins are regular; 9) Multiple I.W. transversely placed on right hand (a) Index finger, 1st Phalanx of size of 1 x 1/2 x 1/4, margins regular and edges sharp (b) middle finger - 1st phalanx of the size of 1 x 1/2 x 1/4 (c) Ring Finger - 1st phalanx of the size of 1 x 1/2 x 1/4. All wounds having sharp edges and regular margins; 10) Incised wound on right thenar region on right hand of the size of 3 cm x 2 cm x 1/2 x 1/4 edges are sharp and margins are regular; 11) Incised wound on left side of face over maxillary region of the size of 3 cm x 1/2 cm x 1/4 cm. margins regular and edges are sharp; 12) I.W. on dorsal aspect of left hand of the size of 4 cm x 2 cm x 2 cm., sharp edges and regular margins; 13) I.W. on left eye (supra-orbital region) of the size of 2 x 1/2 x 1/4 cm., margins regular, edges sharp; 6 Cri.Appeal No.18 of 2011 14) I.W. on right knee joint anteriorly placed transversely of the size of 4 x 3 x 2 cm., edges are sharp, margins regular; 15) Stab wound on left side of buttock, obliquely placed of the size of 8 cm x 6 cm. bone deep; 16) Incised wound on spine at 10th and 12th lower vertebra, vertically placed of the size of 2 x 2 x 1 cm. fresh, oozing present, edges sharp and margins regular; 17) Stab wound on right side lion region, obliquely placed of the size of 8 x 4 x deep, oozing present, margins regular and edges sharp. On internal examination he noticed that there was no fracture, pleura was torn on right side and the lobe of the right lung was also ruptured. He had noticed semi digested liquor in the stomach. He opined that all the injuries were ante mortem and according to P.W.20 Dr. Rane, cause of death was haemorrhagic shock due to multiple wounds on the body. The post mortem report is at Exh.127. 3. The alleged vehicle in which the accused had left the scene of the offence, i.e. vehicle bearing registration No.MH-19-J 1829 came to be seized in the presence of P.W.5 Nilesh at Exh.150. On 5.9.2007 P.W.23 P.I. Borse learnt that the accused had gone to Surat and accordingly 7 Cri.Appeal No.18 of 2011 P.S.I. Thakur (P.W.22) was deputed to apprehend the accused. Meanwhile the seized property came to be referred to the Chemical Analyser for analysis along with the requisition at Exh.120. The property was sent to the Chemical Analyser along with Police Constable Gajmal. Accused nos.1 & 2 came to be arrested on 10.9.2007 near the Gajanan temple at Muktainagar. During custodial interrogation original accused no.2 Gajanan expressed his willingness to point out the place where the weapons were hidden. Accordingly, memorandum of original accused no.2 came to be recorded at Exh.81 in the presence of P.W.4 Prakash. The accused led the police and the panch to an agricultural field in Rankhamb village and produced the spears which had been concealed. The spears came to be seized under panchnama at Exhs.1 & 2 . Statement of P.W.12 Mahadeo, a Blacksmith came to be recorded, who had prepared the spears. During custodial interrogation, original accused no.2 Gajanan expressed his willingness to point out the place of concealment of clothes. Memorandum came to be recorded in the presence of panchas by P.W.22 P.S.I. Thakur. Memorandum of original accused no.2 accordingly came to be recorded at Exh.147. Original accused no.2 Gajanan led the police and the panch towards Vapi and from near a dust bin removed his trousers which had been concealed under a stone. The said trousers Article D-3 came to be seized in the presence of panchas under panchnama at Exh.148. Statements of witnesses came to be recorded on 19.9.2007. The seized property was referred to Chemical Analyser on 26.9.2007 along with the requisition at 8 Cri.Appeal No.18 of 2011 Exh.42. The seized property was carried to the Analyser by P.W.19 Police Constable Shama. The Chemical Analyser informed P.W.23 P.I. Borse that the clothes of deceased contained some cash and a chit. The aforesaid articles, therefore, came to be seized under a panchnama at Exh.138. Further to the completion of investigation, a charge-sheet against the accused came to be filed. The reports of the Chemical Analyser are at Exhs.158 to 163. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.5 framed charge against the appellants, original accused no.2 Gajanan and original accused nos. 4 and 5 Sunanda and Santosh for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code. The appellants denied their guilt and claimed to be tried. 5. Prosecution in support of its case examined 23 witnesses. The defence of the appellants is of denial. The Trial Court by relying on the evidence of eye-witnesses, namely P.W.1 Shriram, P.W.7 Punjabrao, P.W. 9 Ulhas, P.W.10 Prakash, P.W.11 Punjaji and P.W.14 Mahadeo convicted and sentenced the appellants and original accused no.2 Gajanan while acquitting original accused nos.4 and 5. 6. Since both the appeals had been filed by the appellants through jail, we had appointed Advocate Shri P.S. Dighe and Shri M.A. Jagatkar, learned Counsel to represent the appellants in these appeals. 9 Cri.Appeal No.18 of 2011 7. Before we advert to the submissions advanced before us by the learned Counsel for the appellants and the learned Asstt. Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution unfolds its case through the evidence of P.W.1 Shriram. P.W.1 Shriram states that Bhoot Bharti Maharaj was residing in old Ichhapur village, Taluka Muktainagar. P.W.1 Shriram further states that since about three years prior to the incident he was engaged for cleaning the temple and for also preparing food for the Maharaj. Shriram states that he used to reside in the temple along with Maharaj. According to P.W.1 Shriram, on 1.9.2007, at about 11.30 to 11.45 a.m. he along with Maharaj were going to the Hanuman temple in village Nimkhedi from the old temple of village Ichhapur. He states that they were walking on the road which passes in front of the house of the accused. He further states that when they were passing the house of the accused, accused no.2 Gajanan; accused no.1 Shriram and accused no. 3 Sumanbai came towards them and accused no.3 Sumanbai caught the hair of Maharaj while accused Gajanan and accused Shriram dealt blows of spear on the abdomen, back and chest of Maharaj. Maharaj fell on the ground and the accused were exhorting each other to assault P.W.1 Shriram and, therefore, P.W.1 Shriram took to his heels. He noticed Police Patil P.W.7 Punjabrao on the road and, therefore, along with the 10 Cri.Appeal No.18 of 2011 Police Patil returned back to the scene of the incident. On reaching the scene of the incident he noticed Maharaj lying in a pool of blood. However, there was no trace of the accused at the scene of the offence. According to P.W.1 Shriram, the incident took place on Muktainagar - Kurnha Kakoda road in front of the house of the accused. He further states that the accused were manufacturing illicit liquor and Maharaj (deceased) had restrained the accused from the illicit liquor business. On account of that, the relations between Maharaj and the accused were strained. According to him, a criminal case is pending in the Court at Muktainagar in respect of assault by the accused by sword on Maharaj. P.W.1 Shriram then states that a taxi driven by accused Santosh came at the scene and the accused boarded the said taxi and fled from the scene of the offence. Thereafter the police arrived at the spot and inquired from him about the incident and he narrated the incident. Shriram states that accordingly his report at Exh.50 was scribed. He further states that after about twelve days of the incident the police recorded his statement. 8. In cross-examination he has admitted as correct that he is uneducated and cannot read and write. He has also admitted that Maharaj was not paying him any salary. He states that he was also employed as a labour and used to attend his duties after performing his duties at the temple. He has admitted as correct that on the basis of hearsay he is stating that the accused boarded the taxi driven by accused 11 Cri.Appeal No.18 of 2011 Santosh and fled from the scene of the offence. Omission has been duly pointed out that he had not stated that accused Santosh had brought a taxi and the accused had left in the taxi. He has admitted that he had not seen the taxi and, therefore, he could not state the registration number. He has then admitted as follows :- "At that time no other villager except myself and Maharaj were walking. Some persons were working in the land which on right side on road." He has admitted that he had attempted to save the deceased from the assault but has admitted not to have received any injury of spear, but states that he had received a blow of stick on his back. He has admitted that no injury was caused to his back due to the blow of stick. He has admitted that he was not referred to the Hospital for treatment. He has further admitted that after the third blow of spear to deceased he went towards Police Patil P.W.7 Punjabrao. Omission has been duly proved that he had not stated in his complaint that on account of illicit manufacturing of the liquor the relations between the accused and deceased Maharaj were strained as Maharaj had restrained the accused. 9. Prosecution has examined P.W.7 Punjabrao as another eye- witness to the incident. P.W.7 Punjabrao states that since last 26 years 12 Cri.Appeal No.18 of 2011 he was the Police Patil of village Nimkhedi. He has admitted that deceased Bhoot Bharti Maharaj and P.W.1 Shriram used to come to visit Hanuman temple for the last three years. He has also stated that accused no.1 used to manufacture the liquor near the temple. According to P.W.7 Punjabrao there was a dispute between accused no.1 and deceased Maharaj and earlier to the incident accused Shriram had assaulted deceased Maharaj with a sword and, therefore, a criminal case in that regard was pending in the Muktainagar Court. According to him, on 1.9.2007, at about 12 noon, he was at the Bus Stand and had noticed deceased Maharaj and P.W.1 Shriram going towards Nimkhedi from Ichhapur. Suddenly accused nos.2 and 3 came to the scene armed with spears. Accused no.1 Shriram and accused no.2 Gajanan assaulted deceased Maharaj with spears in his stomach while accused no.3 Suman had held the of deceased Maharaj. Deceased Maharaj fell on the ground and his intestines had protruded out. He states that P.W.1 Shriram came running in his direction and he also proceeded to the scene of the offence. According to him, he told the accused, on reaching the scene of the offence, that they should not kill the Maharaj. However, the accused continued with their assault. Thereafter he took his motorcycle and went to the Kurha Outpost and accordingly informed the police. According to him, all the accused were standing near the dead body. He states that he conveyed the information to A.S.I. Hirode and returned back to the scene of the offence. One Onkar Patil informed him that the accused had fled from the scene. He accordingly returned home as A.S.I. Hirode 13 Cri.Appeal No.18 of 2011 had taken his motorcycle and had chased the accused. He claims that his statement was recorded by the police on the same day and after about 12/13 days his supplementary statement was recorded. He has admitted that the Bus Stand where he was standing was not a constructed Bus Stand. He has admitted that there were small stalls where the buses generally stop. He has admitted that private taxis also halt there for collecting passengers. He has admitted that there is traffic on the road. He has admitted that the first information report was not lodged until the dead body was removed from the village. 10. We thus find there is enormous contradiction in the testimony of P.W.1 Shriram and P.W.7 Punjabrao. According to P.W.1 Shriram when he had returned to the scene of the offence along with Punjabrao he had noticed only the dead body of deceased Maharaj as the accused had fled. According to P.W.7 Punjabrao, the accused were continuing their assault when he had reached the scene of the offence and had requested the accused not to kill the Maharaj. Apart from that, P.W.1 Shriram does not show the presence of P.W.7 Punjabrao and only states that he had noticed Punjabrao coming towards him walking on the road. P.W.7 Punjabrao claims that he was standing at the Bus Stand waiting for the arrival of the bus. 11. Prosecution has also examined P.W.9 Ulhas. P.W.9 Ulhas, the third eye-witness, states that the accused manufactured illicit liquor in the 14 Cri.Appeal No.18 of 2011 village near the bank of Purna river. He states about a month and half prior to the incident the accused had assaulted deceased Maharaj with a sword since he had opposed the accused from manufacturing illicit liquor. He states that on 1.9.2007, at about 12 noon, he was standing near cutting stall. The said stall is on the Muktainagar - Kurha road. He states that he had seen deceased Maharaj accompanied by P.W.1 Shriram. Suddenly, the appellants and original accused no.2 Gajanan came out of their house and accused no.3 Suman caught the of Maharaj while accused no.1 Shriram and accused no.2 Gajanan assaulted the Maharaj with a spear on his stomach. Deceased Maharaj fell on the ground in a pool of blood. He states that the accused then fled from the scene of the offence in a taxi. 12. In cross-examination he has admitted that he was not a witness to the incident that had occurred about 1-1/2 months prior to the present incident. He has admitted that his statement had also not been recorded in that offence. He states that after hearing the shouts of the people he had come out of the cutting stall and he had reached the scene of the offence. Deceased Maharaj had fallen on the ground and villagers had assembled there. He states that after incident, dead body of deceased Maharaj was brought to Jalgaon by some politicians. He has further admitted that his knowledge that the accused fled in a taxi was on the basis of hear-say information. 15 Cri.Appeal No.18 of 2011 13. This witness does not show the presence at the scene of the offence of either P.W.1 Shriram or P.W.7 Punjabrao. He also does not refer to the fact, if he was witnessing the incident from the cutting stall, that as soon as the assault commenced P.W.1 Shriram fled from the scene and returned back with P.W.7 Punjabrao. P.W.1 Shriram or P.W.7 Punjabrao also do not refer to the presence of this witness at the scene of the offence. In fact, this witness does not refer to the presence of the other eye-witnesses also. 14. Prosecution has examined P.W.10 Prakash, who states that about a month prior to the incident the accused had assaulted deceased Bhoot Bhartio Maharaj. He states that on the day of the incident at about 12.00 noon he was passing by the Muktainagar - Kurha road to his field. He noticed that accused Sumanbai had held the of Maharaj while accused Shriram and Gajanan had assaulted him with spear. He states that Bhoot Bharti Maharaj was bleeding and his intestines had protruded out. According to him, the accused fled in a vehicle thereafter. In cross- examination he has admitted that on that day he had reached up to the Hanuman temple in the village and since he had heard cry of the people he did not go further but had gone to the scene of the incident. He states that when he had reached the scene of the offence he had noticed that Bhoot Bharti Maharaj had fallen on the ground and villagers had assembled there. He has also admitted that on hearsay information he had stated that the accused fled in a vehicle. 16 Cri.Appeal No.18 of 2011 15. According to us, no reliance whatsoever can be placed on the testimony of this witness as in the cross-examination he has admitted that he had reached the temple and on hearing the cry of the villagers he had returned back to the scene of the offence. He claims that when he had reached the scene of the offence he had noticed that the Maharaj was lying in a pool of blood. This witness does not show the presence of P.W. 1 Shriram, P.W.7 Punjabrao or P.W.9 Ulhas at the scene of the offence. None of the above referred to witnesses also refer to his presence at the scene of the offence. 16. Prosecution has examined P.W.11 Punjaji, who claims that on the day of the incident at about 12.00 noon he was passing by the Bus Stand on the Kurha - Muktainagar road and had seen accused Sumanbai holding the of Maharaj while accused Shriram and Gajanan were assaulting the Maharaj with spears on his chest, stomach and back. He states that intestines of the Maharaj had protruded out. He states that the villagers had assembled there and the accused had fled in a taxi. In cross-examination he has stated that he had accompanied the Maharaj when the Maharaj had complained against the liquor business of the accused. He has admitted that this complaint was made to the Muktainagar police. He states that his statement was not recorded by the police. He further claims that while he was passing on the road P.W.1 Shriram was seen coming running from the side of Kurha and Police Patil (P.W.7 Punjabrao) arrived thereafter. He has admitted that his statement 17 Cri.Appeal No.18 of 2011 came to be recorded on 19th. Omission has been duly proved that he had not stated that the accused had assaulted the deceased on his chest and back. Omission has been duly proved that he had not stated that accused Gajanan was involved in the earlier incident of assault by a sword. 17. This witness claims to have seen both P.W.7 Punjabrao as well as P.W.1 Shriram. Neither P.W.1 Shriram nor P.W.7 Punjabrao make any reference to the presence of this witness on the road or at the scene of the incident. Though the incident occurred on 1.9.2007, his statement came to be recorded on 19th, i.e. after a gap of eighteen days. He does not refer to the presence of the other witnesses as well as to the arrival of the police. We, therefore, find that no reliance whatsoever can be placed on the evidence of P.W.11 Punjaji. 18. Prosecution has