1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 69 OF 2008 1 Prabhakar s/o Uttam Abhange, age 23 years, occ. Agril., 2 Ramdas s/o Champati Abhange, age 28 years, occ. Agril., 3 Uttam s/o Manika Abhange, age 57 years, occ. Agril., 4 Champati s/o Ramrao Abhange, age 59 years, occ. Agril., 5 Shivaji @ Shivraj s/o Champati Abhange, age 20 yrs., occ. Agril., ...Appellants VERSUS 1 The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav,, advocate for the appellants Shri S.D.Kaldate, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 11th February, 2010. 2 ORAL JUDGMENT : (Per Shrihari P. Davare) 1 This appeal is directed against the judgment and order dated 19.12.2007, rendered by the Adhoc Additional Sessions Judge, Kandhar, in Sessions Case No. 16 of 2006, convicting all the accused nos. 1 to 5 for the offences punishable under Sections 147, 148 of the Indian Penal Code, and Sections 307 and 302 r/w Section 149 of the Indian Penal Code and sentencing them to undergo R.I. for one year and to pay a fine of Rs.500/- with default condition for non-payment of fine to further undergo R.I. for 3 months each for the offence punishable under Section 147 of the Indian Penal Code; and also sentencing to undergo R.I. for 1½ years and to pay a fine of Rs. 1,000/- with default condition for non-payment of fine to undergo further R.I. for six months each for the offence punishable under Section 148 of the Indian Penal Code; and also sentencing to suffer R.I. for 7 years and to pay a fine of Rs. 3,000/- with default condition for non-payment of fine to undergo further imprisonment for one year each for offence punishable under Section 307 r/w Section 149 of the Indian Penal Code; and also sentencing to undergo imprisonment for life and to pay a fine of Rs. 7,000/- with default condition for non-payment of fine to undergo further imprisonment for one year each for the offence punishable under Section 302 r/w Section 149 of the 3 Indian Penal Code. 2 The factual matrix of the prosecution case, which can be unfolded, is as under :- Appellant no.1 Prabhakar Abhange is the son of appellant no.3 Uttam Abhange; whereas appellant no.2 Ramdas Abhange and appellant no.5 Shiwaji alias Shivraj Abhange are the sons of appellant no.4 Champati Abhange and they are closely related to each other and are residents of Mangnali in Tahsil Kandhar, District Nanded. The lands of appellants (Original accused) and the lands of family of Vitthal Abhange i.e. father of complainant - Shiwaji Abhange are situated adjacent to each other. It is alleged that on 14.12.2005, accused no.3 Uttam Abhange, accused no.4 Champati Abhange, Manika Abhange and accused no.2 Ramdas Abhange had cut Rohini tree on the Bandh in between the lands of said two groups, and therefore, sons of Vitthal Abhange asked them not to remove cut woods of said Rohini tree. 3 On the said background, Vitthal Abhange and his sons Raju Abhange (victim) and Shiwaji Ahange (complainant) went to the land in the morning of 15.12.2005 to carry out the sowing operation of wheat. It is alleged that at about 10.00 a.m. on the 4 said date, accused no. 4 Champati, accused no.3 Uttam, accused no.2 Ramdas and accused no.5 Shiwaji alias Shivraj Abhange, as well as Taramati, Kamal, Shivmala and Daivashala had gone there and asserted that they would take the cut woods. Thereupon objections were raised from Vitthal Abhange and his sons, which culminated into the assault by accused no.1 Prabhakar by axe to the complainant PW3 Shivanand, while woman folks assaulted him with stones; whereas accused no.3 Uttam and accused no.4 Champati gave axe blows on the head, shoulder and back of PW3 Shivanand, and accused no.1 Prabhakar and accused no.2 Ramdas gave axe blows to victim Raju on his head, back and hand and committed his murder. It is alleged that they also attempted to commit murder of complainant PW3 Shivanand and his father Vitthal, who sustained serious injuries. 4 The nearby people took PW3 Shivanand to the hospital at Kandhar. P.S.I. Yedekar and police personnel arrived there and recorded the statement of Shvanand in the hospital, which was treated as the first information report and complaint was registered under C.R. No. 173 of 2005 at about 4.20 p.m. on 15.12.2005 under Sections 147, 148 of the Indian Penal Code, and Sections 307 and 302 r/w Section 149 of the Indian Penal 5 Code. Thereafter PW12 Balasaheb Reddy who was attached to Kandhar police station at the relevant time as P.I., visited the scene of offence and conducted the inquest panchanama (Exh.26) on the dead body of Raju Abhange in presence of PW1 Govind Yeote. Thereafter postmortem examination of the said dead body was carried out at the Government Hospital by PW4 Dr. Nanda Shankpale, who produced the postmortem notes (Exh.38). She also examined the complainant PW3 Shivanand Abhange and found injuries on his person as specified in medico legal certificate (Exh.39), as well as she examined PW5 Vitthal Abhange and found injuries on his person, which are mentioned in medico legal certificate (Exh.37). Moreover, on 16.12.2005, PW12 P.I. Reddy prepared the spot panchanama (Exh.27) in presence of panch PW1 Govind Yeote. Moreover, various articles, such as plastic shoes, chappal, pieces of woods of Rohini tree and samples of blood soil and soil mixed with chilli powder and blood, white cap and handkerchief (Uparne) were seized under panchanamas (Exh. 59 and Exh. 60) in presence of panch PW10 Ramesh Dhondge. 5 Besides, during the course of investigation, PW12 P.I. Reddy recorded the statements of about 10 witnesses on 16.12.2005. He also arrested 4 accused persons on the said date under the respective arrest panchanama to that effect. On 6 17.12.2005, he recorded statements of 6 more witnesses. Moreover, on 18.12.2005, he recorded statements of 3 more witnesses. Besides, on 19.12.2005 accused no.1 Prabhakar made disclosure statement which was recorded under memorandum panchanama (Exh.30) in presence of panch PW2 Ananda Dhondge, and thereafter accused no.1 Prabhakar led the panchas and police personnel and showed the place i.e. on the eastern side of small Khubad on Bandh and by removing the Jawar fodder therefrom, 4 blood stained axes concealed therein were discovered and same were seized in presence of panchas under the memorandum panchanama (Exh.31) dated 19.12.2005. 6 It is also the case of prosecution that PW12 P.I. Reddy recorded statements of 2 more witnesses on 22.12.2005, as well as he collected school record about age of one of the accused persons and he arrested one accused on 23.12.2005. Moreover, he also recorded statements of 4 more witnesses on the said date. Thereafter on 29.12.2005 he sent muddemal articles for chemical analysis to Chemical Analyser's office, Aurangabad through carrier PW1 P.H.C. Govind Yeote along with forwarding letter Exh.70. The reports of chemical analysis were received, which are produced at Exhs. 73 to 78. Accordingly, after completion of investigation, charge sheet was filed before Judicial 7 Magistrate, First Class, Kandhar. However, since the some of the offences involved in the said case were exclusively triable by the court of Sessions, learned Judicial Magistrate, First Class, Kandhar committed the said case to the Court of Sessions, Kandhar, by committal order dated 9.3.2006. 7 Accordingly, learned Additional Sessions Judge, Kandhar framed the charge against the accused nos. 1 to 5 at Exh. 13 on 28.6.2006 and the accused were charged and tried on the accusation that on 15.12.2005 at and around 10.00 a.m. at Mangnali, Taluka Kandhar, they had formed unlawful assembly with common object to commit the murder of Raju Vitthal Abhange, Shivanand Vitthal Abhange and Vitthal Abhange and in furtherance of their such common object, they committed the rioting, armed with deadly weapons, like axes, sticks and stones, etc. and committed the murder of Raju Ahange by intentionally and inflicting upon him murderous blows by deadly weapons and committed his murder and attempted to commit the murders of Shivanand Abhange and Vitthal Ahange, by causing them injuries with deadly weapons intending to commit their murder and in prosecution of their common object of the assembly had conspired to commit the murder of Raju Abhange, for the offences punishable under Sections 147 and 148 of the Indian Penal Code; 8 and under Sections 307 and 302 r/w Section 149; and under Section 120B of the Indian Penal Code. 8 To substantiate the charges levelled against the accused persons, the prosecution examined in as much as 12 witnesses as mentioned below :- (1) PW1Govind Narayan Yeote, who proved the inquest panchanama, dated 15.12.2005 (Exh. 26) and spot panchanama, dated 16.12.2006 (Exh. 27). (2) PW2 Ananda Dhondge, who proved the memorandum panchanamas (Exhs. 30 and 31) regarding discovery of blood stained four axes at the instance of accused no.1 Prabhakar on 19.12.2005. (3) PW3 Shivanand Abhange, complainant, and injured eye witness and brother of deceased Raju Abhange. (4) PW4 Dr. Nanda Yadavrao Shankpale, who performed the postmortem on the dead body of victim Raju Abhange and proved the postmortem notes (Exh. 38), and also proved injury certificate of injured PW5 ..... (Exh. 37), and also proved injury certificate of complainant PW3 Shiwaji (Exh. 39), as well as proved the injury certificates of accused no.2 Ramdas (Exh.43), accused no.3 Uttam (Exh. 44), accused no.1 Prabhakar (Exh. 45), and accused no.4 Champati (Exh. 46). (5) PW5 Vitthal Ahange, injured eye witness and father of deceased. (6) PW6 Dasrao Govindrao Honrao, 9 who proved the panchanama of seizure of blood stained clothes of accused no.2 Ramdas (Exh. 50) on 16.12.2005, and also proved panchanama of seizure of blood stained clothes of accused no.1 Prabhakar (Exh. 51) on 16.12.2005 and panchanama of seizure of blood stained clothes of accused no.5 Shiwaji (Exh. 52) on 23.12.2005. (7) PW7 Sheshrao Tulshiram Abhange, eye witness – turned hostile. (8) PW8 Vitthal Satwaji Dudhkawade, eye witness – turned hostile. (9) PW9 Waman Sambhaji Abhange, who proved the panchanama of seizure of blood stained clothes of accused no.3 Uttam (Exh. 57) on 19.12.2005, and blood stained clothes of accused no.4 Champati (Exh. 58) on 28.12.2005, as well as seizure panchanamas of articles from the spot (Exhs. 59 and 60). (10) PW10 Ramesh Balaji Dhondge, who proved seizure panchanama of blood stained clothes of deceased (Exh. 68). (11) PW11 Govind Malkaji Kaletwad, Police Head Constable, carrier, who carried muddemal articles to the Chemical Analyser's office, Aurangabad. (12) PW12 P.I. Balasaheb Bhagwantrao Reddy, investigating officer. 9 The defence of accused persons was of total denial and accused no.1 Prabhakar only stated in his statement recorded under Section 313 of the Criminal Procedure Code that there were quarrels over Rohini tree and they had given it to businessman and at the time of taking away trees by him, they had gone there 10 to ask to allow him to take the trees, but accused no.1 Prabhakar and his father were beaten and accused no.1 and his father and paternal uncle were assaulted. Due to said assault upon them, they ran away and made complaint. He also stated that false complaint was lodged against them in collusion, but accused nos. 2 to 5 simply took the defence of total denial and did not make reference of any cross complaint therein. Accordingly, accused nos. 1 to 5 faced the trial for the afore said charges levelled against them and came to be convicted and sentenced for the offences punishable as mentioned herein above. Being aggrieved and dissatisfied by the judgment and order rendered by the learned Adhoc Additional Sessions Judge, Kandhar on 19.12.2007, the appellants have preferred the present appeal praying quashment thereof. 10 Before adverting to the submissions advanced by the learned counsel for the appellants and the learned A.P.P. for the respondent, we feel it necessary to scrutinize the material evidence adduced and produced by the prosecution. In the said context, it is evident that the pivot of the entire prosecution case revolves around the testimonies of two eye witnesses i.e. PW3 Shivanand Vitthal Abhange, who is the complainant and brother of victim Raju, and PW5 Vitthal Abhange, father of victim Raju, and 11 accordingly, coming to the deposition of PW3 Shivanand (complainant), who deposed that the incident took place on 15.12.2005 in the field at village Mangnali at about 10.00 a.m. and on that day, he and his brother Raju had been to the field for sowing wheat at about 8.00 a.m. He stated that he was handling plough and his brother was sowing wheat and their father was also in the field and he was sleeping under the tree. 11 At that juncture, the accused persons came there and started saying that they were taking away Rohini tree, which was lying cut by them on 14.12.2005, however, PW3 Shivanand and his brother objected to the same. Thereupon, the accused persons started assaulting them and accused no.5 Shiwaji threw chilly powder in the eyes of PW3 Shivanand and also in the eyes of his brother Raju. The accused persons assaulted them by means of axes and accused no.2 Ramdas gave axe blow on the head of PW3 Shivanand, accused no. 5 Shiwaji assaulted his brother Raju by means of axe, accused no.1 Prabhakar also assaulted his brother Raju by means of axe on his head and also on his neck and thigh, accused no.4 Champati assaulted his father namely Vitthal by axe on his head and back. He also stated that his brother Raju collapsed there because of the said assault and he also became unconscious due to the assault. PW3 Shivanand 12 further stated that one Mahadabai who was working in the field adjacent to his field shouted, “Not to assault” (Maru Naka, Maru Naka). However, even then the accused persons assaulted them and thereafter they went away. Mahadabai came to the spot and gave water to the injured persons and thereby PW3 Shivanand regained the consciousness. Mahadabai tied handkerchief on his head and told him that his brother was died and advised him that at least he should save his father. Thereafter PW3 Shivanand stated that he went to village Warwat by foot and brought a jeep, but on seeing the said quarrel on the spot, jeep driver refused to take injured persons and went back. Thereafter he went to Pethwadaj on motor cycle along with one Mr. Shinde and brought one jeep to the field. By that time, many persons had gathered there on the spot, including police patil Govind Laxman Shinde, Waman Sambhaji Abhange, Gangaprasad Abhange, Ratan Abhange, etc. and they removed his father by jeep to Kandhar Rural Hospital and accordingly PW3 Shivanand and his father PW5 Vitthal were admitted to the Kandhar Rural Hospital. The police personnel from Kandhar police station recorded his statement on 15.12.2005, which was treated as the first information report (Exh. 33) and the complaint was registered under C.R. No. 173 of 2005 on 15.12.2005 at 16.20 hours for the offences punishable under Sections 302, 307, 147, 148,149 of the Indian Penal Code 13 and 135 of the Bombay Police Act. 12 During cross-examination PW3 Shivanand stated that the Rohini tree in question was of their ownership and same was in their portion of the land on the Dhura and he also stated that, had the said tree been on the northern side slope of portion of Dhura, then it would have been of the accused Uttam. He also stated that he or anyone from his family did not file any complaint to the police in respect of cutting of the Rohini tree and there were no quarrels between them and accused persons on any count prior to the incident. He further stated that survey number of the field in which the incident occurred is 590 and the said land is in the name of deceased Raju and at the time of incident he i.e. PW3 Shivanand, his father and Raju used to reside jointly. It was also stated that on 15.12.2005 he was on the plough while sowing the wheat; whereas his brother deceased was spraying wheat on the ploughed portion of the land and accused persons came in the field at about 9.45 a.m. and accused no.4 Champati had come earlier than other accused, but he and his brother had no talks with him at that time; whereas the other four accused came within 5 to 10 minutes after accused no.4 Champati's arrival and after coming to the field, they told PW3 Shivanand and his brother Raju that they would take the cut Rohini tree. He further stated 14 that the adjacent land holders were also present in their respective fields at the time of the incident. He specifically stated that one Mahadabai and Gundubai, the labourers and Laxmibai were present in the field towards extreme eastern side of the place of the incident. 13 PW3 Shivanand also stated in the cross-examination that the agriculturists normally possess the instruments, such as axe, Koyata (sickle), usually Babhul tree wood is used for preparing handles of axe and some times wood of Apata is used. As usual he and his brother were not having axe with them. He also stated in the cross-examination that accusaed no.5 Shiwaji had thrown chilly powder in his eyes during the incident from front side and thereupon he felt burning sensation in his eyes and was unable to see. He further stated that accused no.4 Champati and accused no.5 Shiwaji threw chilly power in the eyes of his brother Raju (victim). They both threw chilly powder in the eyes in the eyes of victim Raju from his back side when their plough was in process. He also stated that the said accused firstly threw chilly powder in the eyes of Raju. He did not make any shouts. He then stated that accused no.4 Champati lastly threw chilly powder in the eyes of PW5 Vitthal – his father and thereupon PW3 Shivanand raised shouts and due to that Mahadabai, Maroti 15 Narayan and Narayan Govind came there and Mahadabai told the accused not to assault and so much should not be assaulted. PW3 Shivanand further stated that he was able to see after about 2 minutes from throwing chilly powder on him. He further stated that accused firstly started assaulting his brother Raju and he categorically stated that all the five accused persons were having axes in their hands, which were having handles of Babhul tree and said axes were of different sizes i.e. some were big and some were small, but there was no identification mark on the said axes. As regards the blows given by the accused, he stated that accused no.2 Ramdas gave first blow with the axe on the neck of his brother Raju and he assaulted from the sharp end of the axe. Thereafter accused no.2 Shiwaji assaulted Raju on his left hand elbow, head and neck with sharp end of axe. Accordingly, due to the assault by accused no.2 Ramdas and accused no.5 Shiwaji, Raju fell on the spot. Moreover, the other accused persons also assaulted Raju with axe when he was falling down and accused no.4 Champati assaulted Raju with axe on his neck and head; whereas accused no.1 Prabhakar assaulted Raju on his both shoulders, thorax on right side. He further stated that accused no.3 Uttam assaulted Raju on his right thigh and neck. However, witnesses Mahadabai, Maroti and Narayan arrived on the spot after Raju fell down due to assault and the assailants fled away 16 from the said place. 14 As regards assault on PW3 Shivanand himself, he stated that accused no.2 Ramdas assaulted on his hand by means of axe and he gave 2-3 blows of axe on him; whereas accused no.2 Ramdas gave blows of axe on his both shoulders, accused no.4 Champati assaulted him on his hand-elbow, head, thorax; whereas accused no.3 Uttam assaulted on his right and left leg and accused no.5 Shiwaji assaulted him on his neck and thereby PW3 Shivanand felt giddy and fell down. As regards the assault on his father, PW3 Shivanand stated that accused no.4 Champati assaulted on his head by axe and before that accused no.4 Champati assaulted PW3 Shivanand. Moreover, he also stated that accused no.3 Uttam assaulted his father on head and back by axe; whereas accused no.5 Shiwaji assaulted on left and thorax and accused no.2 Ramdas assaulted his father on right leg and opposite side of chin and accused no.1 Prabhakar assaulted his father on head by axe. Accordingly, PW3 Shivanand stated that due to the afore said assault by the accused persons, their clothes were stained with blood. He further stated that there was no scuffle between them and the accused during the incident and the incident went on for about 10 to 20 minutes. 17 15 Moreover, few omissions were elicited in the cross- examination of PW3 Shivanand, but except the omission in respect of alleged assault by accused no.2 Ramdas on his head by axe blow and assault by accused no.5 Shiwaji on his brother Raju by an axe and assault by accused no.1 Prabhakar on the head of PW3 Shivanand by an axe, the other omissions are not material and do not go to the root of the matter. He also admitted that accused no.4 Champati had filed a complaint against them in the police station on 15.12.2005 alleging that PW3 Shivanand, his father and deceased brother Raju had assaulted Champati's brother and other with axes and also admitted that the case about the same was pending against them in the court. It is also admitted that in the said complaint lodged by accused no.4 Champati, time of assault was shown as 10.00 a.m. He further admitted that police have seized axes from them, as well as police have seized his clothes and clothes of his father in the said case filed by the accused against them. Apart from that, few suggestions were given to PW3 Shivanand in the cross- examination, but same were denied by him. 16 Coming to the deposition of another injured eye witness, PW5 Vitthal Rajaram Abhange, who is the father of deceased Raju,who has stated that the incident occurred on 18 15.12.2005 at about 10.00 a.m. In his field in the village Mangnali and he was in the fields. He also stated that at about 9.00 a.m. He was taking rest in the field and at hat time his cousin brothers namely accused no. 4 Champati, accused no.3 Uttam, accused no. 2 Ramdas, accused no.1 Prabhakar and accused no. 5 Shiwaji came to his field by a pathway and they told them that they would lift and take away the tree and further asked who would obstruct them. However, since there should be no dispute, PW5 Vitthal tried to persuade them, but they did not listen to it and told that tree was of them. However, PW5 Vitthal told him not to lift the tree. Thereupon, accused no.3 Uttam assaulted PW5 Vitthal by blunt side of the axe on his head, so also accused no.4 Champati assaulted him on his chest and waist by means of blunt side of the axe. Due to said assault, he fell down on the Bandh of the land. He further stated that his son Shivanand was ploughing in the field and while coming towards PW5 Vitthal and PW3 Shivanand, accused no.1 Prabhakar, accused no.2 Ramdas and accused no.5 Shiwaji threw chilly powder in his eyes and they assaulted him with axe and thereby PW3 Shivanand fell down. Thereafter accused no.4 Champati and accused no.3 Uttam assaulted Shivanand and deceased Raju was near the plough at that time. Thereafter all the above accused persons went towards Raju and they threw chilly power on him and four assailants out of the 19 accused persons assaulted him by axe and thereby Raju fell down. PW5 Vitthal stated that he requested the accused persons not to assault his son Raju. However, on account of severe