1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.686 OF 2006 Maroti s/o Nagoji Potphale, Age : 69 years, Occ. Agri., R/o Shewadi Bajirao, Tq. Loha, Dist. Nanded (At present in jail) ..APPELLANT (Orig. Accused No.1) VERSUS The State of Maharashtra ..RESPONDENT Mr R.N. Dhorde, Advocate holding for Mr B.G. Deshmukh for the appellant; Mr S.G. Ladda, Special Public Prosecutor for the respondent WITH CRIMINAL APPEAL NO.714 OF 2006 The State of Maharashtra (through P.S. Sonkhed Tq. Loha, Dist. Nanded) ..APPELLANT (Ori. Complainant) VERSUS 1. Shivdas Dattatraya Yejge, Age : 66 yrs, Occp.Agri. 2. Parmeshwar Shivdas Yejge, Age : 28 yrs, Occp.Agri. 2 3. Shivhar Maroti Potphale, Age : 24 yrs, Occp.Agri. All R/o Shewadi Bajirao, ..RESPONDENTS Taluka Loha, Dist. Nanded (Ori. Accused) Mr S.G. Ladda, Special Public Prosecutor for the appellant - State; Mr Joyeep Chatterji and Mr Vijay Sharma, Advocates for respondents no.1 to 3. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ. (Date of reserving the judgment : 5th December, 2009 Date of pronouncing the judgment : 10th December, 2009) JUDGMENT (PER P.V. HARDAS, J.) In Criminal Appeal No.686 of 2006 the appellant stands convicted for an offence punishable under section 302 read with sec.34 of the Indian Penal Code and is sentenced to imprisonment for life and to pay fine of Rs.2,000/-, in default of payment of fine to undergo further R.I. for three months, while in Criminal Appeal No.714 of 2006 the State challenges the acquittal of the respondents for offence punishable under section 302, 147, 148 read with sec.149 of the Indian Penal Code and 135 of the Bombay Police Act. In both the appeals the judgment of 3 the Additional Sessions Judge, Kandhar, dated 20.7.2006, in Sessions Case No.144 of 2003 is the subject-matter of challenge. Since both these appeals arise from the same judgment, both these appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- P.W.16 P.S.I. Ashok Mairal was attached to Sonkhed police station. Village Shevadi Bajirao was within the jurisdiction of Sonkhed police station. On 1.7.1997 P.W.16 P.S.I. Mairal was staying at the Government Rest House at Sonkhed since the Government quarters were not available at that time. On 1.7.1997 when he was present in the Rest House at Sonkhed, one person came at about 9.15 a.m. and informed him that one Babarao Dhonde had been assaulted by some persons in village Shevadi Bajirao. P.W.16 P.S.I. Mairal then called 2 to 3 police officers from the police colony and proceeded towards Shevadi Bajirao by jeep at about 9.30 a.m. He reached Shevadi Bajirao at about 9.45 a.m. He proceeded to the Chikale Wada which is situated in the village and went inside the wada. He noticed one person lying on the ground in a pool of blood with injuries on head, forehead and legs. He noticed that the said person was dead. During enquiry it was revealed that the name of the deceased was Babarao Dhonde. Seeing P.W.16 P.S.I. Mairal one person came from the house from the wada and disclosed his name as 4 Kailash Babarao Dhonde, i.e. son of the deceased Babarao Dhonde. P.W.11 Kailash then lodged his report which was reduced into writing by P.W.16 P.S.I. Mairal. The complaint of P.W.11 Kailash was then handed over to Constable Pawar from Loha police station for being taken to Sonkhed police station for registration of the offence. Accordingly Police Constable Pawar proceeded to Sonkhed police station and returned back at about 11.15 a.m. along with the complaint on the basis of which offence punishable under section 302, 147, 148 read with sec. 149 of the Indian Penal Code was registered vide Crime No.37 of 1997. The complaint of P.W.11 Kailash is at Exh.74. It appears that an offence punishable under section 135 of the Bombay Police Act had been also registered. Thereafter P.W.16 P.S.I. Mairal drew the inquest on deceased Babarao in the presence of panch witnesses at Exh.36. Dead body of deceased Babarao was referred for post mortem examination. The scene of the offence panchnama came to be drawn in the presence of panch witnesses at Exh.37. From the scene of the offence one stone weighing about 5 to 6 Kgs., two pieces of bricks stained with blood and blood mixed soil and plain soil came to be seized. Also one light yellow coloured turban which was stained with blood also came to be seized under the said panchnama. Post mortem on the dead body of deceased Babarao was conducted by P.W.3 Dr. Devidas Kanwate. He noticed the following injuries :- 1. Incised wound at left wrist, vertical in direction, edges gaping, reddish in colour, 6 x 4 x 3 cm. 5 2. Through and through injury at the base of left thumb, thumb attached only with skin, edges gaping, reddish in colour, 6 x 4 x 2 cm. 3. Fixed flexion deformity at left wrist; 4. Incised wound at upper one third right leg, vertical in direction, reddish in colour, edges gaping, contaminated with soil. It was of the size 10 x 3 x 6 cm. having fracture shaft tibia at that level. The said injury was bone deep. 5. Incised wound at right elbow, transverse, edges gaping, reddish in colour measuring 2 x 2 x 1 cm. 6. Abrasion on right temporal region, 2 x 1/2 x 1/2 cm. 7. Incised wound at left fronto parietal region, edges gaping, reddish in colour and it was of the size 10 x 3 x 4 cm. 8. Incised wound at upper 1/3rd of left leg, muscle tendons are cut at that level with fracture tibia left, edges were gaping and reddish in colour, size was 14 x 4 x 6 cm. It was vertical in direction and it was deep upto bone. 6 9. Incised wound at left popaliteal region, edges gaping, reddish in colour, it was vertical of the size of 6 x 4 x 3 cm. popaliteal region is a place behind knee. 10. Incised wound at lower 1/3rd right leg with fracture tibia at that level, bones exposed, edges gaping, reddish in colour. It was of the size of 10 x 6 x 4 cm. 11. Incised wound on right ankle of the size 6 x 2 x 2 cm. It was vertical in direction and edges were gaping. It was reddish in colour. There was no evidence of active bleeding. 12. Incised wound on right elbow, transverse in direction of the size 6 x 4 x 2 cm., edges gaping reddish in colour and there was no evidence of active bleeding. 13. Incised wound at right knee of the size 4 x 2 x 2 cm., edges gaping, reddish in colour and transverse in direction. 14. Incised wound, upper and lower lip, vertical in direction, edges gaping, reddish in colour and it was of the size of 4 x 2 x 2 cm. each. 7 15. Incised wound at forehead, deep up to bone, edges gaping, reddish in colour. It was of the size of 8 x 4 x 3 cm. 16. Incised wound on parieto temporal left side, brain matter exposed, edges were gaping, it was vertical in direction. It was of the size of 12 x 4 x 5 cm. 17. Incised wound at left groin, transverse in direction, edges were gaping and it was reddish in colour. Its size was 12 x 4 x 4 cm. 18. Incised wound on left front side of lower neck, edges gaping, reddish in colour. Its size was 5x3x2 cm. 19. Multiple abrasions 08 in number measuring approximately 2 x 1 cm. on left upper limb. 20. Incised wound at upper 1/3rd, right thigh, measuring 3 x 2 x 1 cm. transverse in direction, edges were gaping, reddish in colour. 21. Incised wound left elbow, bone exposed, measuring 5x3x2 cm., edges gaping, reddish in colour. 8 22. Incised wound on right knee having fracture patela, measuring 4 X 3 X 2 cm., edges gaping and it was reddish in colour. 23. Abrasion on neck left side of the size of 8 x 1 cm. reddish in colour and its edges were gaping. Meanwhile injured witnesses P.W.7 Shivkanta, Ahilyabai and Radhabai who had sustained injuries were also referred for medical examination. P.W.7 Shivkanta was examined by P.W.10 Dr. Sunil Gaikwad, who noticed the following injuries :- 1) Contused lacerated wound on right index finger of size 4 x 2 x 1 cm. Age of the injury was within 24 hours. Probably caused by hard and blunt object. 2) Contused lacerated wound on right ring finger of size 1 x 1 x 1/2 cm. age of the injury was within 24 hours and probably caused by hard & blunt object. The injury certificate of Shivkanta is at Exh.17 and the injury certificate of Ahilyabai is at Exh.71. The search for the accused named in the first information report was undertaken but some of the accused could not be traced. On 2.7.1997 clothes of deceased came to be seized by Head Constable Dabhanwad after the post mortem was conducted. The seizure memo of the clothes of deceased Babarao is at Exh.29. The 9 seized clothes came to be referred to the Chemical Analyser along with the requisition at Exh.176. The statements of the witnesses came to be recorded. A charge-sheet initially came to be submitted against the accused who had been apprehended. Sessions Trial No.185/1997 commenced. After examination of the witnesses the Trial Court acquitted all the accused. An appeal challenging the acquittal of the accused has been filed in this Court and is Criminal Appeal No.52 of 2003. Subsequently the other accused came to be arrested and accordingly were tried. 3. As stated above, after the accused came to be apprehended a charge-sheet against the present appellant and the respondents came to be filed. On committal of the case to Court of Sessions, the Trial Court vide Exh.12 framed charge against four accused for an offence punishable under section 147, 148, 302 read with sec.149 of the Indian Penal Code and 135 of the Bombay Police Act. Prosecution mainly relied upon the evidence of six eye-witnesses. The Trial Court upon appreciation of the evidence convicted original accused no.1 Maroti for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code. Accused no.1 Maroti has accordingly filed Criminal Appeal No.686 of 2006. By the same judgment the Trial Court acquitted original accused nos.2 to 4 and their acquittal is subject-matter of challenge at the behest of the State by filing Criminal Appeal No.714 of 2006. Both these appeals are being decided by this common judgment. 10 4. In order to deal effectively with the submissions advanced before us by the learned Counsel for the appellant and the learned Special Public Prosecutor and the learned Counsel for the respondents, it would be useful to refer to the evidence of the eye-witnesses. P.W.11 Kailash, first informant and son of deceased Babarao states that on the day of the incident his sister P.W.7 Shivkanta had come to village Shevadi. He further states that he and his other two brothers reside at village Shevadi as they have agricultural land at village Shevadi. He states that on the day of the incident he along with his father and other brothers was in the house. At about 8.30 a.m. his father started for going towards the cattle shed in order to give fodder to the cattle. He states that he also started going to his shop for purchasing seeds as the seeds were required for sowing. He further states that at about 8.30 a.m. he took the seeds from his shop and closed his shop and started going towards his field. At that time he heard some shouts from the side of wada of Manikrao Chikale. Some boys came running towards him and told him that his father was being assaulted. On being informed about this he rushed towards Chikale wada and when he reached the Chikale wada he noticed his father lying on the ground and the persons assaulting him by swords, axe, kattis, kattas, stick and stones, etc. He has identified the appellant and the respondents in these two appeals as the assailants. He states that he requested the assailants not to assault 11 and raised cries for help. On hearing his shouts, accused no.1 Maroti chased him and exhorted others to catch him and kill him. He states that he, therefore, ran inside the house of Manikrao Chikale and closed the door from inside. He states that he saw the entire incident of assault on his father from the window of the house. He further states that accused no.1 Maroti was armed with a sword and was assaulting his father Babarao while accused Shivhar was armed with a stick and accused Sheru Mohammad Gaus was armed with a sword. Accused Babu Sheru was assaulting his father with a sword. He gives a graphic description of the various weapons with which the accused were armed. He further states that his sister Shivkanta was also present in the wada of Manik Chikale at that time and she laid prostrate on her father in order to protect him from assault and requested the assailants not to assault her father deceased Babarao. Kailash states that she was also assaulted by accused Babu Narangale by a sword on her right hand. P.W.7 Shivkanta sustained bleeding injury on her hand while his sister Ahilyabai, mother Radhabai and his sister-in-law Sumanbai were also present there and were trying to intervene and separate the quarrel. He states that they too were assaulted by fists and kick blows and were lifted and thrown by the assailants. He states that Manik Chikale, Pandurang Chikale, Parvati Chikale, Mathurabai were inside the wada at that time and were also shouting and requesting the assailants not to assault. He states that on account of the assault his father Babarao died on account of the injuries sustained by him. Kailash further states that his father was murdered on 12 account of the previous enmity between accused Ramrao and others. He states that accused Ramrao was Sarpanch of village Shevadi for about 20 to 25 years and had committed misappropriation of the funds of Grampanchayat. Kailash states that he along with his brothers and father had lodged a complaint about the misappropriation with the Collector, Block Development Officer, etc. and an enquiry had been held in which the misappropriation of the funds had been established. An offence had been registered against accused Ramrao and he was directed to repay the amount and was removed from the post of Sarpanch. He states that accused Ramrao had also been arrested. Kailash further states that accused Ramrao was the Chairman of a school Mahesh Vidyalaya at Shevadi. He was indulging in the malpractice of assuring the students of ensuring that they pass the 10th standard examination and for that used to take money from them. He states that a complaint had been lodged by him against Ramrao for this malpractice. Kailash further states that son of accused Maroti was terminated on account of the fact that he was appearing for B.Ed. while serving in the school at the same time. He further states that a complaint had been lodged against Tanaji as he had been appointed though he was illiterate. He states that on account of several complaints, inimical relations developed between his family and the family of accused Ramrao. He states that after accused Ramrao was removed from the post of Sarpanch elections had been held in the year 1995 and in the said election Kailash had contested the election against accused Ramrao and had won in the said election. He states that 13 several persons from his panel had been elected in the said election and on account of that accused Ramrao was annoyed. He further states that about six months prior to the incident accused Ramrao and his associates had assaulted his brother Madhav by sword, axe, sticks, etc. The accused had been arrested by the police and the said case was pending. He states that after about 2 to 3 months thereafter his maternal cousin had also been assaulted by accused Ramrao and others and an offence regarding the same was registered. 5. In cross-examination he has admitted that his father was neither a Sarpanch nor a member of the Grampanchayat during the relevant period. He has also admitted that his father had never contested any elections. He has admitted that he might be having the copies of the complaint signed by about 50 persons against accused Ramrao. He has admitted that his father had taken the lead in filing the said complaint against accused Ramrao. He has admitted that one Vishwanath Dhonde is the brother of his father. Umakant, Nagnath and Shankar are the sons of Vishwanath. He has admitted that he could not state about the relations between Ramrao and Vishwanath and his sons. He has admitted that he was not on cross terms with his uncle Vishwanath. He has admitted that sons of Vishwanath have been made accused in this case. He has also admitted that they have been acquitted by the Sessions Court. He has admitted that an offence had been registered in respect of murder of one Devidas Dhonde and for causing fracture to the 14 leg of one Shankar Dhonde. He has admitted that he was an accused along with his brothers in the said case. He has also admitted that he was convicted and sentenced to imprisonment for life along with his brothers. He states that an appeal against the said conviction is pending in the High Court. He has admitted that in the case relating to the assault on his brother Madhav about 18 to 19 accused were acquitted. He states that an appeal against the acquittal is pending in the High Court. He then makes a startling admission that his brother Madhav was present during the incident but he fled from the scene of the offence as the assailants ran behind him. He has admitted that his relations with one Irappa Shingnapure were cordial and he does not know if the accused in the said case relating to the assault on Irappa Shingnapure were acquitted. He then states that he does not know if accused Ramrao and accused Rajaram had been admitted in the hospital at Nanded on 1.7.1997. He has feigned ignorance as to whether they were seriously injured. He has denied the suggestion that accused Ramrao and Rajaram had been assaulted by Kailash and others at 7.30 a.m. on the day of the incident. He has admitted that subsequently he learnt that the accused had been admitted in the hospital. He volunteers to state that the accused had been assaulted by the people as they were fleeing from the scene of the offence. He has, however, admitted that offence vide crime No.38 of 1997 was registered against him and others in respect of assault on Ramrao and Rajaram on 1.7.1997. He has also admitted that Sessions Case No.216 of 1998 had been filed against him 15 and his brothers. He states that he does not know if his brother Madhav, Vaijnath and others had been convicted in the said case. 6. Omission has been duly proved that he had not stated in his report at Exh.74 that on 1.7.1997 at about 8.30 a.m. after taking bag of seeds from the shop he started towards his field. Omission has been duly proved that he had not stated in his statement that his sister Shivkanta had come to village Shevadi Bajirao about 4 to 5 days prior to the incident and was present in the village on the day of the incident. Omission has been duly proved that he had not stated in his report that he had requested the accused not to assault his father deceased Babarao. Omission has been duly proved that he had not stated in his report that accused Maroti had exhorted the others to kill him. Omission has also been duly proved that he had not stated in his report that he was watching the entire incident from a window of the house. Omission has been duly proved that he had not stated that accused Maroti was assaulting his father with a sword. Omission has also been duly proved that he had not stated in his report that his sister Shivkanta laid prostrate on his father in order to protect him and was requesting the accused not to assault him and was raising cries for help. Omission has been duly proved that he had not stated in his report that one Parvatibai was present in the Chikale wada during the incident and that witnesses Manik, Pandurang, Parvatibai and Mathurabai were requesting the accused not to assault deceased Babarao. He has admitted not to have 16 stated in his report that his father had filed complaint against accused Ramrao and that a crime for misappropriation had been registered against Ramrao and that he had been arrested and thereafter removed from the post of Sarpanch. Omission has been duly proved that he had not mentioned in his report at Exh.74 that accused Ramrao used to allure the students with an assurance of their passing 10th standard examination. Similarly, omission has been proved in respect of the complaint lodged against Gangadhar for having joined to B.Ed. course at the same time serving in the school. Omission has been duly proved that he had not stated in his statement that accused Tanaji was appointed in the school even though he was illiterate and was thereafter removed on the basis of a complaint filed by Kailash. Similarly, omission has been proved that he had not stated in his report at Exh.74 that accused Ramrao had a grudge against the complainant and his relatives. Omission has then been proved that he had not stated in his complaint that 50 persons had complained against accused Ramrao and, therefore, he was removed from the post of Sarpanch. Similarly omission has been proved in respect of the incident occurring at 8.30 a.m. Kailash volunteers that he had stated the time between 8.30 a.m. to 9.00 a.m. 7. He has further stated that his father died between 8.30 to 8.45 a.m. and the incident lasted for about 5 to 6 minutes. He states that he had reached the scene of the offence approximately between 8.30 a.m. to 8.45 a.m. He has admitted not to have separated the quarrel between 17 the accused and his father by physically intervening in the quarrel. He was confronted with the portion in his report at Exh.74 that he had heard shouts from the Chikale Wada at about 9.00 a.m. He then further states that he and Shivkanta both entered the Chikale Wada practically at the same time from opposite directions. He has denied to have stated portion mark "A" in his evidence before the Sessions Court at Nanded in earlier Sessions Case No.185 of 1997. He has admitted to have shown the window to the police while drawing the scene of the offence panchnama but could not explain as to why it was not mentioned in the scene of the offence panchnama. He has admitted not to have stated in the earlier Sessions Trial No.185 of 1997 that he had witnessed the incident through the window. Similarly, he has denied to have stated in the earlier Sessions Case No.185 of 1997 that he had heard the shouts at about 9.00 a.m. and could not assign any reason as to why this statement was present in his earlier deposition which was marked as portion "B" and "C". He has denied the suggestion that the complainant party had assaulted accused Ramrao and "Rajaram and had inflicted grievous injuries on them. 8. Prosecution has examined P.W.7 Shivkanta, sister of P.W.11 Kailash. Shivkanta states that she was married on