1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 478 OF 2007 Ganesh Baban Solankar, age 21 years, occ. Nil, r/o Rajput-Galli, Paranda, Tq. Paranda, Dist. Osmanabad. ...Appellant VERSUS The State of Maharashtra (Copy to be served upon Public Prosecutor, High Court, Bench at Aurangabad) ...Respondent ..... Smt. S.S.Jadhav, advocate for the appellant Shri K.S.Patil, APP for the respondent/State. ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 7th January, 2010 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1. The challenge in this appeal is to the conviction inflicted upon the appellant (original accused no.1) Ganesh Baban Solankar for the offence punishable under Section 302 of 2 the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs. 500/- with default condition to suffer R.I. for three months and conviction for the offence punishable under Section 324 of the Indian Penal Code and sentencing him to suffer R.I. for one year and to pay a fine of Rs. 500/- with default condition to suffer R.I. for three months, by the judgment and order rendered by the learned Adhoc Additional Sessions Judge, Osmanabad, in Sessions Case No. 71 of 2006 on 28.9.2007. 2. The factual matrix of the prosecution case is summarised as under :- It is the case of the prosecution that the complainant P.W.2 Popat Solankar filed the complaint before Paranda police station on 13.5.2006 at about 16.20 hours, contending that he resides at Rajput Lane, Paranda along with his wife, namely Manda and two sons, namely Rahul and Rupesh and one daughter and also stating that he has four brothers, out of them elder brother Baban died about 4 years back and his another brother, namely Shrirang was serving in Irrigation Department and his younger brother, namely Nagnath resides at Vishrantwadi, Pune and used to do labour work for his livelihood. The complainant also contends that he used to ply truck to earn livelihood for himself and his family. 3 3. The said complaint also recites that the marriage of his niece, namely Reshma i.e. daughter of his brother, namely Shrirang was fixed on 14.5.2006 at Wakadi and marriage invitation cards were also printed therefor and relatives were gathered for the said function. However, it is alleged that since the name of wife of deceased Baban, namely Yamunabai was not printed in the marriage invitation card, her two sons, namely Ganesh i.e. appellant (original accused no.1) and Pintu alias Somnath (original accused no.4) made grievance in that respect and also quarreled with the complainant and deceased Nagnath on that count. However, all the relatives pacified them and thereafter said matter was settled. 4. The said complaint further reveals that on 12.5.2006 at about 20.00 hours the complainant had returned from the work place to home and was sitting on the platform in front of his house along with deceased, his wife and his brother deceased Nagnath and his wife Chandrakala. At this juncture, the appellant herein started abusing on the count that his mother’s name, viz. Yamunabai was not printed in the marriage invitation card and Pintu alias Somnath i.e. original accused no.4 and his mother Yamnuabai also abused and threatened to assault them. The complainant tried to pacify them, but the appellant herein became wild and assaulted him by wooden log. Thereupon 4 deceased Nagnath and his wife intervened in the said quarrel. At that time, Manisha (original accused No.3) i.e. sister of Ganesh i.e. original accused no.1 assaulted Chandrakala; whereas Pintu alias Somnath i.e. original accused no.4 abused and assaulted deceased Nagnath. However, nearby persons viz. Rajabhau Kanade and Sanjay Kanade intervened and relieved the said quarrel, but the appellant herein-original accused no.4 Pintu alias Somnath as well as Yamunabai i.e. original accused no.2 gave threats to the complainant and his brothers to kill them and left the said place. 5. It was noticed that during the said quarrel the marriage string of Chandrakala was broken and beads thereof were fallen on the ground and the complainant and deceased brother Nagnath and Sanjay Kanade were searching the said beads. It is alleged that suddenly at this juncture, the appellant herein arrived there from Momin lane, who was armed with knife and shouted loudly that he would kill the complainant and Nagnath and thereafter gave a blow of knife into the stomach of Nagnath and thereupon Nagnath fell down. At this juncture, Pintu alias Somnath-original accused no.4 also assaulted the complainant by hands; whereas Yamunabai i.e. original accused no.2 loudly gave abuses to complainant and Nagnath and instigated the said assailants to kill the complainant and Nagnath. On hearing the voice of Nagnath, Sanjay Kanade, 5 Bhima Sarak, Narayan Jedhe and others assembled there and intervened and relieved the said quarrel. At this juncture, complainant Popat tried to catch hold of knife in the hands of appellant Ganesh, but Ganesh gave a blow of said knife forcibly into the back of the complainant and the complainant sustained bleeding injury. The complainant further states that Nagnath was injured severely and had become unconscious, and therefore, he was given water, and when all the persons assembled there, they tried to remove him to the hospital and the assailants tried to run away, but at this stage, the complainant snatched the knife from the hands of the appellant. Thereafter, it is stated that Nagnath was taken to the Government Hospital for medical treatment and thereafter was further shifted to Jagdalemama hospital, Barshi for better medical treatment. 6. It is also the case of prosecution that, P.W.9 Ekabal Syed, who was working as P.S.I. At Omerga police station, District Osmanabad at the relevant time, recorded M.L.C. No. 82 of 2006 on 12.5.2006 at about 23.00 hours and the said M.L.C. was registered in Sessions Diary and inquiry was handed over to Head Constable Thorat. Thereafter P.W.9 PSI Ekabal Syed visited Jagdalemama hospital, Barshi and made inquiry with doctor, who stated that the patient was in a position to give the statement, since he was admitted in I.C.U. P.W.9 PSI Syed made 6 inquiry with the relatives and registered the complaint (Exhibit 38) of P.W.2 Complainant Popat on 13.5.2006 under Sections 307, 323, 504, 506 r/w Section 34 of the Indian Penal Code and made the necessary station diary entry to that effect. Moreover, complainant P.W.2 Popat handed over the knife which was snatched from the hands of appellant Ganesh and same was seized under panchanama (Exhibit 49). Thereafter P.W.9 PSI Syed visited the spot of incident and prepared the spot panchanama (Exhibit 46), as well as went to Jagdalemama hospital, Barshi and seized the clothes of the victim under panchanama (Exhibit 50). 7. It is further the case of the prosecution that search of the appellant/accused was conducted and P.W.9 PSI Syed arrested Yamunabai (original accused no.2) and Manisha (original accused no.3) on 13.5.2006; as well as P.W.9 PSI Syed recorded statements of witnesses including Sanjay Kanade, and Chandrakala Solankar on the said date. He also arrested Pintu alias Somnath-original accused no.4 on 17.5.2006, as well as arrested appellant herein, namely Ganesh on 21.5.2006. P.W.9 PSI Ekabal Syed also visited the hospital during the period from 13.5.2006 to 18.5.2006 to record the statements of injured Nagnath, but he was not in a position to give the statement and ultimately injured Nagnath expired in the said hospital on 18.5.2006. Since injured Nagnath died on 18.5.2006, Section 7 302 of the Indian Penal Code was incorporated in the first information report and dead body was sent for postmortem purpose. He also collected blood sample of injured during the said period for the investigation purpose. 8. It is further the case of the prosecution that on 19.5.2006, P.W.9 PSI Syed received the inquest panchanama (Exhibit 44) of the deceased and also procured the provisional death certificate of the victim. During the course of investigation, he collected the marriage card of Reshma (Exhibit 39) from the complainant, as well as collected the blood sample of the complainant. Appellant Ganesh gave memorandum statement (Exhibit 52) after his arrest to produce stick and clothes on his person and thereafter the appellant proceeded to his house and produced stick and clothes on his person and same were seized under memorandum panchanama (Exhibit 53). 9. During the course of investigation, P.W.9 PSI Syed sent the muddemal property to the Chemical Analyser’s office, Aurangabad for investigating purpose along with forwarding letter (Exhibit 64), as well as collected the injury certificates of injured (Exhibits. 32 and 34) and postmortem notes of deceased Nagnath (Exhibit 65). Thereafter, chemical analysis reports were collected, which are produced at Exhs. 66 to 69 respectively. 8 10. After investigation, charge sheet was filed against the accused persons before the Judicial Magistrate, First Class, Paranda and since the said case was triable by the court of Sessions, learned Judicial Magistrate, First Class, Paranda committed the said case to the court of Sessions, Osmanabad on 29.9.2006. Accordingly, learned Adhoc Additional Sessions Judge, Osmanabad framed charge against the accused persons under Sections 302, 324, 323, 504, 506 r/w Section 34 of the Indian Penal Code, at Exhibit 10 and accused nos. 1 to 4 faced the trial under the said charges. 11. To substantiate the said charges against the accused persons, prosecution examined, in as much as 9 witnesses, as mentioned below :- PW1 Dr.Sanjay Ashok Walke, who examined victim Nagnath PW2 Popat Solankar – complainant and eye witness PW3 Sanjay Kanade - driver and eye witness PW4 Chandrakala Solankar – wife of victim and eye witness PW5 Eknath Jadhav – Panch to spot panchanama PW6 Sudam Kavathe – Panch for seizure of knife produced by complainant and seizure panchanama of clothes of injures PW7 Bhima Sarak – Panch for memorandum panchanama regarding recovery/discovery of clothes of appellant PW8 Dr.Bharat Gaikwad, Medical Officer and Postmortem doctor 9 PW9 PSI Ekabal Syed – Investigating Officer. 12. The defence of the accused persons was of total denial and they stated that they are not concerned with the alleged offences and pleaded ignorance in that respect. The accused persons also examined one defence witness, namely Dr. Manoj Lokhande at Exhibit 72, who proved case papers of Jagdalemama hospital of deceased Nagnath (Exhibit74). 13. After assessment of the evidence on record, learned Adhoc Additional Sessions Judge concluded the trial on 28.9.2007 and thereby acquitted the accused nos. 2 to 4 from the charges levelled against them as well as acquitted the appellant herein for the offences punishable under Sections 323, 504 and 506 of the Indian Penal Code, but convicted the appellant herein (original accused no.1) for the offences punishable under Sections 302 and 324 of the Indian Penal Code and sentenced him as afore said. Being aggrieved and dissatisfied by the said judgment and order dated 28.9.2007, the appellant (original accused no.1) has preferred the present appeal requesting to quash and set aside the said conviction and sentence. 14. Before adverting to the submissions advanced by the learned counsel for the parties, we feel it necessary to scrutinise the material adduced and produced by the prosecution and 10 defence, and accordingly, coming to the deposition of P.W.2 Popat Solankar, who is the complainant and brother of victim namely Nagnath, stated that, he was having three brothers namely deceased Nagnath, Shrirang and Baban, but Baban died about 4 to 5 years back and appellant Ganesh (original accused No.1) is son of deceased Baban and Yamunabai (original accused No.2) is the wife of deceased Baban and Manisha (original accused No.3) is daughter of deceased Baban and Somnath (original accused No.4) is another son of deceased Baban. He also stated that marriage of Reshma i.e. daughter of Shrirang was to be performed on 14.5.2006 and marriage cards were printed therefor. However, name of Yamunabai i.e. original accused No.2 was not printed in the said marriage invitation cards and, therefore, she instigated appellant and thereupon all the accused persons quarreled and abused P.W.2 Popat and his family on that count on 11.5.2006. P.W.2 Popat also stated that after the said incident, he filed a complaint to the Paranda Police Station against all accused. However, since there was marriage in the family and due to intervention of relatives, the said matter was compromised. 15. P.W.2 Popat further stated that, on 12.5.2006 at about 8.00 p.m. he and his deceased brother Nagnath and wife of P.W. 2, Nanda and his brother’s wife Chandrakala were sitting on the platform in front of their house and at that time all the accused 11 came there and appellant Ganesh abused them as name of Yamunabai was not printed in the marriage card. Thereafter Chandrakala asked all the accused not to abuse but they assaulted her and during the said quarrel her Mangalsutra was damaged and broken and beads thereof were fallen on the ground. At this juncture, nearby persons namely Sanjay, Bhima Dagdu, Narayan Jedhe intervened and resolved the dispute and thereafter accused went away. P.W.2 Popat further stated that thereafter he was standing at the door of his house along with deceased Nagnath and Chandrakala and at that time appellant Ganesh, original accused No.4 Somnath and original accused No. 2 Yamunabai again came there from the lane and appellant Ganesh gave a blow of knife on the stomach of Nagnath and thereby Nagnath fell on the ground. Moreover, Somnath caught- hold of complainant Popat and appellant assaulted him by knife on his back, but P.W.2 Popat removed knife from his hands and thereafter all the accused ran away. He also stated that due to the blow of knife on the stomach of Nagnath, his intestine came out and Sanjay and others took Nagnath to hospital at Paranda. Doctors checked Nagnath and provided medical aid and doctors advised to shift him to Osmanabad Civil Hospital, but considering the long distance, he was shifted to Jagdale Mama Hospital, Barshi. However, he further stated that Nagnath expired in Jagdale Mama Hospital on 18.5.2006. Besides that, P.W.2 Popat also stated that he went to Police Station, Paranda on 13.5.2006 12 and filed the complaint which was recorded as per his version Exhibit 38 against the accused and also he handed over knife before police which was snatched from the hands of appellant and same was seized under the panchanama. He also produced the marriage invitation card which is marked as Exhibit 39. 16. During cross-examination, he stated that name of Baban has been printed on the marriage card, but the word “Late” was not noted behind his name. He also stated that, accused came from Momin Galli to Rajput Galli and said Momin Lane is the only lane to reach his house. Suggestion was given to him that there were two lanes available to enter into Rajput Lane from Momin Lane, but same was denied by him and he asserted that there was only one lane available to come to his house. Suggestion was also given to him that he and Nagnath were in habit of drinking liquor but same also was denied by him. It was also suggested to him that due to habit of liquor deceased Nagnath quarreled with the people in the village but same was denied by him. It was further suggested to him that on 12.5.2006 electric light supply was not available in Paranda city from 5.00 p.m. to 9.00 p.m. due to load shedding, but same was denied by him. It was further suggested to him that some unknown persons assaulted Nagnath and ran away since there was no light, but same was also denied by him. While snatching the knife from the hands of Ganesh, he stated that he did not 13 sustain any injury. The suggestion was also given to him that accused constructed a very good house at Paranda than the house of P.W.2, he had grudge against the accused, but same was denied by him. 17. In the cross-examination, few omissions were elicited that on 11.5.2006, accused Manisha also came to quarrel with P.W.2 Popat and family and to abuse them, and on 12.5.2006 all the accused abused them and assaulted them and when appellant assaulted deceased Nagnath, that time accused Manisha came there, but the said omissions are primarily in respect of accused Manisha who has been already acquitted and appellant herein would not be benefited by the said omissions. 18. Considering the testimony of P.W.2 Popat, it is amply clear that P.W. 2 Popat Solankar i.e. the complainant had narrated the occurrence of incident categorically which was witnessed by him and he further stated in clear terms that the appellant herein gave a blow of knife on the left side stomach of Nagnath below the left iliac fossa and thereby he fell down and although he was shifted to hospital for medical treatment, he succumbed to the said injuries on 18.5.2006 and the said deposition of P.W.2 Popat, who is the eye witness to the occurrence of incident, has not been demolished in the cross- examination. Hence, the testimony of P.W.2 Popat, who is the 14 eye witness to the occurrence of incident, connects the appellant with the crime. 19. That takes us to the deposition of P.W.3 Sanjay Kanade, another eye witness to the incident, who deposed that he resides at Paranda in Rajput lane and he knows all the accused persons and deceased Nagnath and P.W.2 complainant as well. He also stated that incident occurred on 12.5.2006 and it was about 8.00 p.m. to 9.00 p.m. when he was standing in front of house of complainant at Chowk area and at that time quarrel took place in between P.W.2 complainant Popat and Nagnath and his family on the one part and the accused on the other part due to non mention of name of Yamunabai on the marriage card and he rescued the said dispute, but in the said quarrel, the marriage string of wife of Nagnath was broken and they were searching the marriage string on the ground. At this juncture, the accused Yuamunabai (original accused No.2), Pintu and appellant Ganesh came there from Momin lane and appellant Ganesh gave a blow of knife on the left side stomach of Nagnath and thereafter intestine of Nagnath came out. He also stated that he and others tried to relieve the matter but appellant Ganesh gave a blow of knife on the back of complainant, but the complainant P.W.2 Popat took away the knife from the hands of Ganesh and thereafter the accused ran away from that place. He further stated that, he, Bhima Sarak 15 and others took the injured Nagnath and Popat towards Rural Hospital, Paranda, but the doctors advised to shift him to Civil Hospital, Osmanabad, but since Nagnath was seriously injured, he was shifted to Jagdale Mama Hospital, Barshi and thereafter P.W.3 Sanjay returned to his village. 20. During cross-examination, he stated that his house is situated 100 to 150 ft. away from the house of complainant at Rajput lane. Suggestion was given to him that deceased Nagnath was addicted to liquor and there was dispute between Popat and Nagnath previously and complainant Popat and his brother’s wife has lodged 3-4 cases against Nagnath against Nagnath, but same were denied by him. It was also suggested to him that there was partition of house property between Solankar brothers and Yamunabai constructed two rooms on the premises allotted to her portion, but same were denied by him. It was also suggested to P.W.3 Sanjay that on the day of incident and at the time of incident, there was no electric light due to load shedding at Paranda but same was denied by him. 21. Moreover, few omissions were elicited in the cross- examination of P.W.3 that, Yamunabai and Pintu came from Momin Lane, but the said omission is not in respect of appellant herein and, therefore, will not affect the role of the appellant in the commission of the offence. The suggestion was also given to 16 him that two ways were available to enter into Rajput Lane from Momin Lane but same was denied by him. It was also suggested to him that he was deposing falsely that on 12.5.2006 at about 8.00 p.m. to 9.00 p.m. he was standing in Chowk area of Rajput Lane and dispute and quarrel took lace between accused and appellant and appellant Ganesh gave a blow of knife on the stomach of Nagnath, but same was denied by him. 22. Accordingly, considering the testimony of P.W.3 Sanjay, it is clear that P.W.3 Sanjay was the resident of Rajput Lane, Paranda, nearby the house of complainant and he was present at the time of incident i.e. between 8.00 p.m. to 9.00 p.m. on 12.5.2006 and has witnessed the occurrence of incident, and more particularly, the assault on the stomach of deceased Nagnath at the hands of assailant/ appellant by way of knife and thereby causing injury to the victim and thereby coming out the intestine of victim- Nagnath and P.W.3 intervening therein as well as appellant giving a blow of knife on the back of complainant and snatching the knife by the complainant Popat from his hands, and the said version of P.W.3 has not been disturbed in the cross-examination and, therefore, it connects the appellant with the crime. Moreover, it is also material to note that besides few omissions elicited in the cross-examination, which are not material and also besides giving few suggestions given in cross- examination which were admittedly denied by the P.W.3, there is 17 nothing damaging to the case of prosecution in the cross- examination. Moreover, narration of incident by P.W.3 is in consonance with the testimony of P.W.2 complainant Popat and both the said testimonies corroborate with each other on the very point of occurrence of incident which also connects the appellant to the crime. 23. Turning to the deposition of P.W.4 Chandrakala, wife of deceased Nagnath, who stated that she knows all the accused persons and deceased Nagnath was her husband. She stated that the incident occurred on 12.5.2006 in front of house of Popat at about 8.00 p.m. and at that time, she, her husband Nagnath, P.W.2 Popat and his wife were sitting on the platform in front of house of P.W.2 Popat. At this juncture, all the accused came there and started abusing them since name of Yamunabai was not printed on the marriage card of Reshma and, therefore, all the accused abused them. She also stated that she asked them not to quarrel and not to abuse, but all the accused caught hold and assaulted her by fist blows and during the said assault, her marriage string was broken and beads fell on the ground. Hence, the nearby people in the lane namely Sanjay i.e. P.W.3 and Bhima etc. intervened and rescued the quarrel and thereafter the accused persons went away. She further stated that she was searching her marriage string and beads thereof and deceased Nagnath, P.W.2 Popat and P.W.3 Sanjay were also 18 present there and at that time, appellant Ganesh and Pintya @ Somnath (original accused No.4) came from the lane and appellant Ganesh gave a blow of knife on the stomach of her husband Nagnath and thereupon he shouted and fell down on the ground and his intestine came out. She further stated that at that time, accused Pintya @ Somnath caught hold P.W.2 Popat and appellant Ganesh gave a blow of knife on his back, but P.W.2 Popat snatched the knife from the hands of appellant Ganesh. Thereafter the appellant Ganesh and Pintya went away from that place. She further stated that P.W.3 Sanjay and Bhima took deceased Nagnath and P.W.2 Popat to Paranda Rural Hospital, and as per advice, Nagnath was removed to Jagdale Mama Hospital, Barshi. However, after the lapse of 5-6 days from the incident, Nagnath died. 24. During the cross-examination, she stated that since last 2 to 3 years she and Nagnath were residing at Pune for labour work. She denied that Nagnath was addicted to liquor. She also