1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1103 OF 2002 Shri.Subhash Bhagwanta Nalawade ) resident of Village Osorde, ) Sonapur, Pune ) (At present in Jail Custody) ) .. Appellant V/s The State of Maharashtra ) (At the instance of Velha Pol,ice Station ) Pune) ) .. Respondent WITH CRIMINAL APPEAL NO.1365 OF 2002 1. Balu Jayram Nalawade ) 2. Anil Jayram Nalawade ) 3. Jayram Narayan Nalawade ) All R/at & Post Nigade, ) Taluka Velha, District­Pune ) (At present lodged at Yerwada ) Central Prison) ) .. Appellants V/s The State of Maharashtra .. Respondent WITH CRIMINAL APPEAL NO.208 OF 2003 The State of Maharashtra .. Appellant’ V/s 1. Shripati Rambhau Nalawade ) 2. Nandlal Laxman Nalawade ) 3. Sunil Jayram Nalawade ) 4. Datta Arjun Nalawade ) 5. Baban Haribhau Nalawade ) 6. Dnyanoba Namdeo Jawalkar ) 7. Rajendra Bhaurao Nalawade ) 2 8. Sandeep Baban Nalawade ) 9. Santosh Arjun Nalawade ) 10. Ulhas Arjun Nalawade ) 11. Raghunath Rambhau Nalawade ) 12. Vitthal Baban Kadam ) 13. Jaya @ Jayawanta Rajaram ) Nalawade ) 14. Deepak Digambar Kakade ­­­­­­­­­­Deleted as per Court s order dt.5.3.2010 ’ 15. Sambhaji Tanaji Pasalkar ) All R/o.Nigade, Post: Osade, ) Tal.Velha, Dist: Pune. ) 16. Santosh Dattatraya Pasalkar, ) R/o.Ambade, Post: Ranzane, ) Tal.Velha, Dist: Pune. ) 17. Dnyanoba @ Mauli Baburao ) Danawale ) R/o.Bare, Tal.Bhare, Dist: Pune ) 18. Bapu @ Tulshidas Sopan ) Shendkar, ) R/o.Dapode, Post:Dapode, ) Tal.Velha, Dist: Pune ) .. Respondents CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE OF RESERVING JUDGMENT : 5TH MARCH, 2010 DATE OF PRONOUNCEMENT OF JUDGMENT: 23RD MARCH, 2010 ORAL JUDGMENT: (Per R.G.Ketkar, J.) 1. These appeals are directed against Judgment and order dated September 12, 2002 passed by learned Additional Sessions Judge, Pune in Sessions Case No.42 of 2000. By the impugned judgment and order the learned Sessions Judge convicted Accused No.1­Balu J.Nalawade, Accused No.4­Anil J.Nalawade, Accused No.6­Jayaram Narayan Nalawade and Accused No.7­ Subhash Bhagwant Nalawade for the offence punishable u/s.148 Indian Penal Code, 1860 (for short IPC ) and they were sentenced to suffer “ ” 3 Rigorous Imprisonment for one year. They were also convicted for the offence punishable u/s.302 read with Section 149 IPC and were sentenced to suffer Imprisonment for Life and to pay fine of Rs.3,000/­ each, in default to suffer further Rigorous Imprisonment for one year. They were further convicted for the offence punishable u/s.326 read with Section 149 IPC and were sentenced to suffer Rigorous Imprisonment for three years and to pay fine of Rs.1,000/­each, in default to suffer further Rigorous Imprisonment for six months. They were also convicted for the offence punishable u/s.324 read with Section 149 IPC and were sentenced to suffer Rigorous Imprisonment for one year and to pay fine of Rs.5,000/­ each, in default to suffer further Rigorous Imprisonment for one year. All the substantive sentences were ordered to run concurrently. 2. Criminal Appeal No.1103/2002 is preferred by the original Accused No.7­ Subhash, Criminal Appeal No.1365/2002 is preferred by original Accused No.1­Balu, Accused No.4­Anil and Accused No.6­Jayaram. Criminal Appeal No.208/2003 is preferred by the State Government against the order of acquittal against the original Accused Nos.2, 3, 5, 8 to 17 and 19 to 22. Initially the State had also preferred this appeal against the Accused No. 18­Deepak Digambar Kakade. After admission of the appeal action u/s.390 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) was ordered. Accused No.18 did not furnish bail and was report;ed to be absconding. Non bailable warrant was issued against the Accused No.18 and was sent for execution to Police Inspector, Velha Police Station, Pune. The API of 4 Velha Police Station reported that the said accused was not traceable at his native place. In view of this, Mrs.V.R.Bhosale, learned APP filed an application for deleting the name of Respondent No.14 (Accused No.18) from this appeal and sought liberty to file separate appeal against the said Accused. By our separate order dated March 5, 2010 we have allowed the application and permitted deletion of Respondent No.14 (Accused No. 18) with a liberty to the State to file separate appeal against him. Since all these appeals are directed against the impugned judgment and order dated September 12, 2002 they are heard together and are being disposed of by this common judgment. 3. The case of the prosecution is that the incident in question occurred on October 12, 1999 on the way to Osade village at about 9 to 9.30 a.m. Dilip Yashwant Gavade, since deceased was in a service of one Lala Jori. He used to drive jeep for transport of passengers from Pune to Panshet. On October 12, 1999 the jeep was proceeding towards Panshet. PW2­ Narayan Kumbhar and one Baban Jadhav, since deceased, boarded the jeep at village Donje for going to Panshet. PW3­Kundlik Shahade and PW4­Suresh Dalvi joined them at Vardale Phata. On the way PW5­ Narayan Jori of village Malkhed also boarded the jeep for proceeding to the field. 4. It is the case of the prosecution that the Dilip, instead of taking the vehicle to Panshet, took the turn at Osade Phata for proceeding towards the Osade village. The jeep travelled some distance and when it reached 5 at the ascent, whistle was blown and immediately 15/20 armed men intercepted the jeep. They encircled the jeep and started assaulting the occupants of the jeep. Accused No.1­Balu broke front glass of the jeep by giving blow with sword. He assaulted Dilip on his head. Accused No.4­ Anil and Accused No.6­Jayaram assaulted him with sattur. Accused No.13­ Santosh Nalawade hit on his back with sword, while Accused No.20­ Santosh Pasalkar gave blow with axe from blunt side to Dilip. Dilip was pulled out of the jeep and was dragged at some distance by Accused No. 6­Jayaram. Accused No.18­Deepak Kakade gave blow with sword on the chest of Baban. Accused No.6­Jayaram bet him with chain of motorcycle. PW2­Narayan Kumbhar was assaulted by Accused No.5­Sunil, Accused No. 2­Shripati and Accused No.3­Nandlal. PW5­Narayan Jori was assaulted by Accused No.7­Subhash, Accused No.6­Jayaram, Accused No.10­Dnyanoba Jawalkar and Accused No.20­Santosh Pasalkar with weapons like sattur, iron rods etc. PW3­Kundlik Shahade received injuries at the hands of Accused No.9­Baban and Accused No.3­Nandlal with sword­stick and iron rod. PW4­Suresh Dalvi was injured at the hands of Accused No.15­ Raghunath with sickle. PW5­Narayan Jori became unconscious on the spot while PW2­Narayan Kumbhar, PW3­Kundlik Shahade and PW4­Suresh Dalvi succeeded in running away. Dilip and Baban died on the spot. After the attack, the assailants fled. 5. It is the case of the prosecution that PW1­Sudhakar Gavade of village Sonapur and who is uncle of Dilip received information from his niece 6 Kunda that there was quarrel near hillock at Osade Village. Dilip was seriously injured. He rushed to the spot with his relatives. He saw dead body of Dilip and Baban lying on the spot. He saw that Dilip was having injury to his head and incised wounds all over the body. Baban Jadhav was also having injuries on his person. At around same time, the police sub­Inspector Jayawant Dhamal of Villa Police Station received information about the incident. He also rushed towards the spot. When PW1­Sudhakar Gavade reached the spot, he noted that many persons had gathered on the spot and he came to know from them that PW5­Narayan Jori was taken to Sasoon General Hospital, Pune for treatment. From the discussion of the people he gathered information and he lodged complaint before the police on the spot, which is at Exh.184. The case was registered under CR No.19/1999 at Velha Police Station. 6. PSI Jayawant Dhamal conducted inquest panchanama at Exh.233 of the dead body of Baban Jadhav. Inquest panchanama at Exh.234 of the dead body of Dilip was also prepared. Dead bodies were sent for post mortem examination at Rural Hospital, Velha. PW15­Captain Pankaj Chawala conducted post mortem examination on the dead body of Dilip on October 13, 1999 in the morning. He prepared post mortem notes at Exh. 250 and opined that the cause of death was due to devitalizing injury to the brain due to fracture of the skull. He also conducted post mortem examination on the dead body of Baban. He opined that the case of death of Baban was due to perforating injury to the heart left ventricle. 7 He prepared post mortem notes at Exh.251. PSI Dhamal also conducted panchanama of the spot at Exh.220 when he visited the spot. Iron rods, pipes, rude torch (tembha), some foot wears, napkin, cap and other articles scattered at the spot were seized. Samples of the blood stained earth were taken. 7. It is the case of the prosecution that all the injured persons separately reached at Sasoon General Hospital at Pune. PW2­Narayan Kumbhar was examined by PW14­Dr.P.Satish Bhat who issued medical certificate at Exh. 248. PW5­Narayan Jori was examined by PW13­Dr.Nitin Patil who issued medical certificate at Exh.244. PW2­Narayan Kumbhar and PW5­Narayan Jori were admitted in the hospital. PW3­Kundlik and PW4­Suresh were examined by PW10­Dr.Prakashchand Raidasi who issued medical certificates at Exh.225 and 226 respectively. 8. During the course of investigation, PSI Dhamal arrested the accused under various panchanamas at Exh.237 to Exh.242­A. He also seized the clothes of the deceased, as also the injured PW2­Narayan Kumbhar and PW5­Narayan Jori under separate panchanamas. Weapons used by the accused as also their clothes were seized under various panchanamas as per section 27 of the Indian Evidence Act, 1872. All muddemal articles were sent for chemical analysis. Chemical Analysis reports were received. After completion of the investigation, chargesheet was filed against accused in the Court of learned Judicial Magistrate, First Class, Court No. 7, Pune. Accused Rajendra Nivangune and Bhanekar were absconding. In 8 due course case was committed to the Court of Sessions. Charge at Exh. 43 was framed against the Accused on July 28, 2000 by the learned Additional Sessions Judge, Pune. The contents of the charges were read over and explained to the accused in vernacular by the learned Sessions Judge in the open Court. They pleaded not guilty and claimed to be tried. It is the defence of the accused that deceased and the injured witnesses were employees of the said Lala Jori who deals in the business of illicit liquor. At the time of incident they were proceeding by a jeep for sale of liquor, and some unknown assailants assaulted these persons and the accused are falsely implicated at the behest of said Lala Jori as they opposed his illegal activities. In support of its case, the prosecution in all examined 15 witnesses who can be broadly classified in the following categories: INJURED EYE WITNESSES: i) PW2­Narayan Shankar Kumbhar, who was examined at Exh.186. ii) PW3­Kundlik Aburao Shahade, who was examined at Exh.188. iii) PW4­Suresh Laxman Dalvi, who was examined at Exh.191. iv) PW5­Narayan Bhikoba Jori, who was examined at Exh.200. PANCH WITNESSES: i) PW6­Dnyanoba Sopan Jori, who was examined at Exh.203. He is the witness to following panchanamas: 9 Panchanama of Seizure of clothes of deceased Baban Jadhav drawn on October 15, 1999 at Exh.204. Panchanama of Seizure of clothes of PW2­Narayan Kumbhar dated October 16, 1999 at Exh.205. Panchanama of Seizure of clothes of PW5­Narayan Jori dated October 16, 1999 at Exh.206. Recovery Panchanama of weapons used by Accused No.7 Suhhash, as also clothes of Accused No.7, drawn on November 3, 1999 at Exh.207­B ii) PW7­Vitthal Haribhau Dalvi was examined at Exh.208. He is witness to following panchanamas: Panchanama of recovery of clothes of deceased Dilip dated October 13, 1999 at Exh.207, Panchanama of recovery of axe and stick at the instance of Accused No.2­Shripati dated October 19, 1999 at Exh.210­B. 10 Panchanama of recovery of clothes of Accused No.5­Sunil dated October 25, 1999 at Exh.211, Panchanama of recovery of clothes of Accused No.20­Santosh Pasalkar dated October 25, 1999 at Exh.212, Panchanama of recovery of sickle and torch (tembha) at the instance of Accused No.6­Jayaram Nalawade dated October 26, 1999 at Exh.203­B. Recovery panchanama of axe at the instance of Accused No.20­ Santosh Pasalkar dated October 26, 1999 at Exh.214B. Panchanama of recovery of two satturs, two swords and sword­ stick at the instance of Accused No.12­Sandeep dated November 1, 1999 at Exh.215­B. Iii) PW8­Prakash Dagadu Gore who was examined at Exh.219. He is witness to the following panchanamas:­ Spot panchanama dated October 12, 1999 at Exh.220. Panchanama of recovery of axe at the instance of Accused No.8­ 11 Datta and the clothes on his person dated October 19, 1999 at Exh. 221­B. iv) PW9­Ananta Shankar Shede. He was examined at Exh.222. He is witness to recovery panchanama of Sattur at the instance of Accused No.4­Anil dated April 17, 2000 at Exh.223­A. v) PW11­Dilip Tatyaba Pawar, who was examined at Exh.227. He is witness to recovery panchanama of Iron Rod and clothes of Accused no.10­Dnyanoba Jawalkar dated November 4, 1999 at Exh.228­B. MEDICAL EVIDENCE: i) PW10­Dr.Prakashchand Rupchand Raidasi was examined at Exh.224. At the relevant time he was attached to Sasoon General Hospital as a Casuality Medical Officer. He examined PW3­Kundlik and issued medical certificate at Exh.225. He also examined PW4­Suresh and issued injury certificate at Exh.226. ii) PW13­Dr.Nitin Gambhirrao Patil was examined at Exh.243. At the relevant time he was attached to Sasoon General Hospital as a Resident Doctor. He examined PW5­Narayan Jori and issued injury certificate at Exh.244. He produced original case papers which are colloctively exhibited as Exh.246. 12 Iii) PW14­Dr.P.Satish Bhat was examined at Exh.247. At the relevant time he was attached to Sasoon General Hospital as a Resident Doctor. He examined PW2­Narayan Kumbhar and issued injury certificate at Exh.248. He also produced the original case papers at Exh.248­A. He also examined PW5­Narayan Jori and produced case papers at Exh.246. iv) PW15­ Captain Pankaj Ajit Chawala was examined at Exh.249. At the relevant time he was working as a Medical Officer at Rural Hospital at Velha. He conducted post mortem examination of dead body of Dilip Yashwant Gavade and produced on record the post mortem notes at Exh. 250. He also performed post mortem examination on the dead body of Baban Jadhav and produced post mortem notes at Exh.251. 9. In addition, the prosecution examined PW1­complainant Sudhakar Rambhau Gavade at Exh.183 who lodged complaint dated October 12, 1999 at Exh.184. Prosecution also examined PW12­Jayawant Kondiba Dhamal, Investigating Officer at Exh.232. He carried out Inquest Panchanama of deceased Baban Jadhav at Exh.233 as also the Inquest Panchanama of Dilip at Exh.234. He recorded panchanama of scene of offence at Exh.220 as also various panchanamas of seizure, recovery of clothes, recovery of weapons and arrest. He sent weapons and clothes seized for chemical analysis and the reports of Chemical Analysis are at 13 Exh.268 and 269. The defence has examined Shrishail Somanna Hiroli at Exh.260. He was examined to substantiate alibi of Accused No.15­Rambhau Nalawade. 10. On the basis of material on record, learned Additional Sessions Judge, Pune passed the impugned order on September 12, 2002 convicting the Accused Nos.1, 4, 6, 7 and acquitting rest of the accused, as more particularly set out in the earlier part of the judgment. It is against this judgment and order, the Accused No.1­Balu, Accused No.4­Anil and Accused No.6­Jayaram have preferred Criminal Appeal No.1365/2002, Accused No.7­Subhash has preferred Criminal Appeal No.1103/2002 whereas State of Maharashtra has preferred Appeal against the order of acquittal in respect of accused Nos.2, 3, 5, 8 to 17 and 19 to 22. 11. We have heard Mr.Daulat G.Khamkar, learned Counsel appearing for the Appellants in Cr.Appeal No.1365/2002, Mr.Prakash Naik, learned Counsel appearing for the Appellants in Criminal Appeal No.1103/2002 and Mrs.V.R.Bhosale, learned APP appearing for the State in both these appeals. So far as Appeal No.208/2003 which is filed by the State against the order of acquittal, we have heard Smt.V.R.Bhosale, learned APP for the Appellant/State and Ms.P.P.Kahade, learned Counsel appearing for Respondent Nos.1 to 18. We have heard all the learned Counsel at length and we have been taken through all the material record. 14 12. The prosecution has examined PW1­Sudhakar, complainant, who lodged the complaint on October 12, 1999 at Exh.184. He deposed that his niece Kunda came to Sonapur from village Osade and informed him that there was quarrel near hillock at Osade village and Dilip was seriously injured. He rushed to the spot with his relatives and on reaching the spot he found that a jeep bearing Registration No.5369 was standing near the field of one Jagtap. Dilip was lying near the jeep facing earth and having injury to his head and the incised wounds all over the body. At some distance Baban Jadhav was lying dead, having injuries on his person. Many persons had gathered on the spot and he came to know from them that PW5­Narayan Jori was taken to Sasoon General Hospital at Pune for treatment. With the discussion he had with the persons gathered at the spot, he came to know that Accused No.4­Anil, Accused No.5­Sunil, Accused No.1­Balu, Accused No.6­Jayaram, Accused No.7­Subhash, Accused No.8­Datta, Accused No.19­Sambhaji and 10/12 persons assaulted Dilip, Baban and Narayan Jori on account of previous disputes. Police reached on the spot and he lodged complaint before the police on the spot. Iron rods and other articles were lying at the spot. The dead bodies were sent for post mortem examination after the Inquest Panchanamas. In the cross­ examination PW1­complainant Sudhakar deposed that Osade Village is at the distance of 1 to 1 and 1/4th Kilometer. He deposed that Kunda came alone and he did not ask her as to how she came to know about the incident. 7 to 8 persons accompanied him. Some persons who gathered 15 at the spot were known to him. He however could not tell there names and he also could not tell whether they were from surrounding villages. Police reached after half an hour after his reaching the spot. He did not know whether the police interrogated the persons who were present there. After inspecting the dead bodies, Inquest panchanamas of the dead bodies were drawn. The said fact was not recorded in the complaint at Exh.184. He further deposed that Kunda did not accompany him to the spot. The fact that Iron Rods and weapons were lying on the spot was not mentioned in the complaint and one required 15 to 20 minutes by walk to reach the spot from Sonapur of which he is the resident. 13. The prosecution also examined PW2­Narayan Kumbhar, PW3­Kundlik Shahade, PW4­Suresh Dalvi and PW5­Narayan Jori who are the injured eye witnesses. PW2­Narayan Kumbhar deposed that at about 8 a.m on October 12, 1999 he was in the square of the village waiting for a vehicle for going to Panshet for work. A jeep came there. Dilip was driving the vehicle. He knew him as also the Baban Jadhav who came there. Jeep proceeded towards Panshet and he and Baban Jadhav boarded the jeep. At Vardale phata PW4­Suresh Dalvi and PW3­Kundlik Shahade who also were known to him boarded the jeep. After sometime PW5­Narayan Jori boarded the jeep. Dilip informed them that he was taking the jeep to Osade to meet his relatives. He was sitting behind the driver. Baban sat next to driver. PW4­Suresh was near PW5­Narayan Jori. PW3­Kundlik was at rear seat. At osade phata Dilip took turn and proceeded towards 16 the Osade village. They crossed Katkari vasti and immediately thereafter they heard a sound of whistle. 10/15 boys rushed towards the vehicle. They were armed with swords, satturs, sword­sticks, rude torch (mashal), Iron rods, sticks and axes. Jeep was stopped and went towards the drain to the side of the road in reverse. The boys were from Nigade village. Accused No.1­Balu gave blow with sword on front glass of the jeep and the glass was broken. Accused No.1­Balu gave blow with sword on the head of Dilip. Accused No.4­Anil gave blow with sattur on the head of Dilip. Accused No.6­Jayaram gave blow with sattur on his neck. Accused No.13­Santosh Nalawade gave sword blow on his back. Accused No.20­ Santosh Pasalkar gave blows with blunt side of the axe on his person. Accused No.6­Jayaram came and pulled Dilip out of the jeep and started assaulting him. He dragged him towards the road. At that time Accused No.18­Deepak Kakade gave blow with sword­stick on the chest of Baban Jadhav. Accused No.17­Jaya Rajaram Nalawade bet him with chain of motorcycle. Accused No.15­Raghunath Nalawade gave blow with cycle on the back of PW4­Suresh. Accused No.7­Subhash assaulted PW5­Narayan Jori with axe. Accused No.6­Jayaram Nalawade gave blow with sattur on his head. Accused No.10­Dnyanoba Jawalkar bet him with Iron Rod. Accused No.20­Santosh Pasalkar assaulted PW5­Narayan Jori with axe. Accused No.5­Sunil assaulted him on his head with sattur. He saved blow by raising his hand and received blow of sattur on his left elbo. Accused No.2­Shripati gave axe blow on his back. Accused No,9­Baban gave blow 17 with sword­stick on the hand of PW3­Kundlik. Accused No.3­Nandlal bet him with Iron Road. After attack the assailants ran away. He received injuries on back, head, hand and legs. He went to Osade Phata. From there he came to Pune and went to Sasoon General Hospital. He was admitted there for six days. On the next date his statement was recorded in the hospital. His clothes were stained with blood. His parents came to the hospital and he handed over clothes to them in the hospital. In the Court he pointed out one accused but he did not tell his name. He told that his name is Bapu Shendkar. He identified Accused No.6­Jayaram, Accused No.5­Sunil, Accused No.20­Santosh Pasalkar, Accused No.1­Balu, Accused No.2­Shripati, Accused No.9­Baban, Accused No.10­Dnyanoba Jawalkar, Accused No.8­Datta, Accused No.18­Deepak, Accused No.3­Nandlal and Accused No.7­Subhash. 14. In the cross­examination he deposed that he does the labour work whichever he gets from Khadakwasala to Panshet. He had no work at Osade village on that day. Deceased Dilip was working as a driver on the jeep of Lala Jori. Afterwards he came to know that the jeep was of Lala Jori. He had no work on that day at Osade. He asked Dilip that he wanted to go to Osade and how much time would be required. Incident in question occurred in his life for the first time and he was frightened on seeing the boys running towards the jeep. He did not run away after the glass was broken. He admitted that Accused No.1­Balu, Accused No.4­Anil, Accused No.5­Sunil and Accused No.6­Jayaram are not from his 18 village. He was not in touch with them prior to the incident. The incident of assault lasted 5 to 7 minutes and there was commotion. He deposed that it was not true that the people gathered on the spot at the time of incident. He was in the jeep throughout the incident. He went to Panshet by walk, which took 5 to 10 minutes. Within 2 to 3 minutes jeep came there. In the jeep there were 5 to 6 persons. He had no talks with the occupants of the jeep. Thereafter he said that they enquired with him. Panshet was nearer than Pune from that place. He did not know whether Police Chowki and the Government Dispensary are situate in Panshet. He had visited Panshet 2 to 3 occasions. He did not know whether hospitals are situate at Pune road. Jeep left him at Sasoon Hospital. He did not ask the occupants in the jeep to inform the police. He was examined by the Doctor in the hospital who made enquiry about the injuries. Police were also present and they made enquiry. He was then taken to the Ward. Doctor in the Ward also made enquiry with him. Before the police he stated that Accused No.6­Jayaram assaulted him after pulling. He however could not tell why the said fact of beating is not reflected in the police statement. He had stated before the police that his clothes were handed over to his parents when they came to the hospital. He however