1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.52 OF 2003 State of Maharashtra ,, APPELLANT (Original Complainant) VERSUS (1) Nagnath s/o Munjaji Shikare, | Appeal abated as Age 40 years, Occu.Agri. | against Resp.No.1 | as per Court's order | dated 26.3.2007 2. Ganpati s/o Vithal Narangale, Age 60 years, Occu.Agri., 3. Tanaji s/o Ramrao Potfale, Age 28 years, Occu.Agri., 4. Hanmanta s/o Mallikarjun Potfale, Age 50 years, Occu.Agri., 5. Maharudra s/o Sambhaji Dhonde, Age 20 years, Occu.Private Service 6. Balaji s/o Maroti Potfale, Age 19 years, Occu.Education 7. Nagnath s/o Vishwanath Dhonde, Age 35 years, Occu.Agri., 8. Umakant s/o Vishwanath Dhonde, Age 27 years, Occu.Agri., 9. Madhav s/o Santram Bhong, Age 25 years, Occu.Business 10. Hariram s/o Sambhaji Bhong, Age 40 years, Occu.Agri., 11. Baban alias Dattatraya s/o Shivdas Yesge, Age 27 years, Occupation Agri., 2 12. Shivsamb s/o Santram Bhong, Age 30 years, Occu.Agri., 13. Tukaram s/o Sangram Kapse, Age 25 years, Occu.Labour 14. Laxman s/o Ramrao Potfale, Age 21 years, Occu.Education 15. Shivraj s/o Hanmanta Potfale, Age 20 years, Occu.Agri., 16. Balaji s/o Tukaram Potfale, Age 20 years, Occu.Agri., 17. Tukaram s/o Mallikarjun Potfale, Age 35 years, Occu.Agri., 18. Sambhaji s/o Gunaji Dhonde, Age 60 years, Occu.Agri., 19. Gangadhar s/o Hanmanta Potfale Age 25 years, Occu.Agri., 20. Babu s/o Ganpati Narangale, Age 40 years, Occu.Agri., 21. Sadashiv s/o Gunaji Dhonde, Age 40 years, Occu.Agri., 22. Ramrao d/o Nagoji Potfale, Age 60 years, Occu.Agri., 23. Rajaram s/o Gunaji Dhonde, Age 45 years, Occu.Agri., 24. Damodhar s/o Sambhaji Dhonde, Age 26 years, Occu.Agri., 25. Mohd.Gose Sher Mohd., Age 29 years, Occu.Labour, R/o Etwar Bhaji Mandai, Hyderbhang, Degloor Naka, Nanded 26. Santram s/o Havji Dhonde, Age 45 years, Occu.Agri., 3 27. Gangadhar s/o Ramrao Potfale, Age 36 years, Occu.Student, All R/o Shevdi (Bajirao), Taluka Loha, District Nanded .. RESPONDENTS (Original accused) Shri V.D.Sapkal, Special Counsel for appellant/State Shri R.N.Dhorde, Advocate for Respondent Nos.3,6,9,10,12, 14,15, 16, 17, 20, 22, 25 and 27 Shri Vijay Sharma, Advocate for respondent Nos.5, 11, 18, 21, 23, 24 Shri Joydeep Chatterji, Advocate for respondent Nos.2, 4, 19 and 26. Respondent Nos.7, 8 and 13 served Appeal abated as against Respondent No.1 as per Court's order dated 26.3.2007. CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ (Date of reserving the judgment : 5.12.2009 Date of pronouncing the the judgment : 10.12.2009) JUDGMENT [ PER P.V.HARDAS , J ] The State has filed the present appeal challenging the judgment of the Additional Sessions Judge, Nanded, dated 7.10.2002, in Sessions Case No.185 of 1997, acquitting the respondents of offences punishable under section 147, 148, 302, 324 read with sec. 149 of the Indian Penal Code and under section 135 of the Bombay Police Act. 4 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.19 A.P.I. Ashok Mairal was attached to police station, Sonkhed. On 1.7.1997 while he was in the Rest House one person came at about 9.15 a.m. and informed him that Babarao s/o Mahadu had been assaulted at Shevadi Bajirao. On receiving the said information he left for Shevadi at about 9.30 a.m. According to him he reached Shevadi at 9.45 a.m. and on receiving information went to the Manikrao Chikale Wada. There he noticed the dead body of deceased Babarao Dhonde lying inside the Chikale Wada. He, therefore, called for additional force and recorded the report given by P.W.16 Kailash Dhonde at Exh. 166. He forwarded the said report at Exh.166 to police station, Sonkhed along with Police Constable Pawar. P.W.25 Subhash Pawar, a Police Constable attached to police station, Lohara, which is situated at a distance of 15 Kms. from Sonkhed, was attached to the office of C.P.I., Loha. On 1.7.1997 while he was on duty at police station, Loha, the C.P.I. called him at 9.30 a.m. and asked him to accompany him for going to Shevadi. He states that he reached Shevadi at about 10.15 a.m. P.S.I. Mairal was scribing the report at Shevadi. He learnt the name of the complainant as Kailash Dhonde. P.S.I. Mairal then handed over the report to him at about 10.45 a.m. and requested him to take 5 the report to police station, Sonkhed and get the offence registered and to request the Officer to send one copy of the report to the Magistrate and thereafter to bring back the original report. P.W.25 Police Constable Pawar further states that he reached police station, Sonkhed at 10.55 a.m. and contacted Head Constable Dabhanwad and handed over the report. An offence was registered and P.W.25 Police Constable Pawar was returned back the report which he took to Shevadi and handed it over to P.S.I. Mairal. P.W.20 Head Constable Dabhanwad was attached to police station, Sonkhed and was the station diary in charge on 1.7.1997. According to him one Tanaji Ramrao Potphale came to the police station and informed him that his father Ramrao Potphale who was injured by the Dhonde party and was brought to the police station in a jeep. P.W.20 Head Constable Dabhanwad states that he went near the jeep and inquired the name of the injured. According to Head Constable Dabhanwad he requested that person to give his statement but the injured stated that he would give it later on. Dabhanwad then sent injured Ramrao to the hospital at Nanded along with Head Constable Ranveer. According to Dabhanwad, P.S.I. Mairal was then at the Rest House. He states that he learnt that P.S.I. Mairal had left for Shevadi. He states that he informed this incident to the S.D.P.O., Nanded (Rural), C.P.I. at Loha and the Control Room, Nanded by wireless. He states that he had taken 6 the note of it in the station diary which is at sr.no.151, dated 1.7.1997 at Exh.183. He then states that at 10.05 a.m. he had received a wireless message in the police station from Shevadi that P.S.I. Mairal had intimated that Babarao Dhonde had been killed and the atmosphere at Shevadi was tense and a request was, therefore, made for sending additional force. P.W.20 Head Constable Dabhanwad states that thereafter he had informed the S.D.P.O., Nanded (Rural) and the C.P.I., Loha and had taken an entry in the station diary at sr.no.16, which is at Exh.184. At 11.00 a.m. Police Constable Pawar had brought one report to him on the basis of which he registered an offence vide Crime No.37 of 1997. He identifies the entry in the report (Exh.166) at Exh. 185. He then states that the report was sent back to P.S.I. Mairal at Shevadi and the copy of the report was forwarded to the Judicial Magistrate First Class at Kandhar. He also states that the clothes of injured Ramrao were seized vide seizure memo at Exh. 168. 3. P.W.19 A.P.I. Mairal states that in the presence of the panch witnesses the inquest panchnama of the dead body of deceased Babarao was drawn at Exh.121. Thereafter the scene of the offence panchnama came to be drawn in the presence of panch witnesses at Exh.132. From the scene of the offence one blood stained stone, some pieces of bricks, blood stained mud and 7 ordinary mud and one long cloth came to be seized under the scene of the offence panchnama. A.P.I. Mairal (P.W.19) recorded the statements of Shivkanta, Radhabai and sent injured Shivkanta, Radhabai, Sumanbai and Ahilyabai to the hospital for treatment under a requisition at Exh.155. He thereafter recorded the statements of Pandurang Chikale and Parvatibai Chikale. He searched for the accused but as the accused were not found, he directed the Police Officers to keep a watch on the houses of the accused as well as their relatives. The dead body of deceased Babarao was referred for post mortem examination along with Police Constable Kendre. 4. Post mortem on the dead body of deceased Babarao came to be conducted by P.W.8 Dr. Devidas Kanvate. Dr. Devidas Kanvate (P.W.8) noticed the following external injuries :- 1. Incised wound at left wrist, vertical, edges gaping, redish in colour, 6 x 4 x 3 cm. 2. Through and through injury at the base of left thumb, thumb attached only with skin, edges gaping, redish in colour, 6 x 4 x 2 cm. 3. Fixed flexion deformity at left wrist; 8 4. Incised wound at upper one third right leg, verticle, redish, edges gaping, contaminated with soil, 10 x 3 x 6 cm., bone deep with fracture shaft tibia at that level; 5. Incised wound right elbow, transverse, redish, 2 x 2 x 1 cm., edges gaping. 6. Abrasion on right temporal region, 2 x 1/2 x 1/2 cm. 7. Incised wound left fronto parietal region, redish, 10 x 3 x 4 cm., edges gaping. 8. Incised wound at upper 1/3rd left leg, fracture tibia left muscle tendons are cut at that level, deep, edges gaping. 9. Incised wound at left popliteal region, redish, edges gaping, verticle, 6 x 4 x 2 cm. 10. Incised wound at lower 1/3rd, fracture tibia redish, edges gaping, bones exposed 10 x 6 x 4 cm. 11. Incised wound on right ankle, 6 x 2 x 2 cm., verticle, redish, edges gaping. 9 12. Incised wound on right elbow, transverse, 6 x 4 x 2 cm., edges gaping. There was no evidence of active bleeding in injury nos.11 and 12. 13. Incised wound at right knee, transverse, redish, 4 x 2 x 2 cm. , edges gaping. 14. Incised wound, upper lip and lower lip, verticle redish, 4 x 2 x 2 cm., edges gaping. 15. Incised wound at forehead, deep up to bone, redish, 8 x 4 x 3 cm., edges gaping. 16. Incised wound on parieto temporal left side, verticle, 12 x 4 x 5 cm., edges gaping with brain matter exposed. 17. Incised wound at left groin, transverse, redish, 12 x 4 x 4 cm., edges gaping 18. Incised wound on left front side of lower neck, redish, 5 x 3 x 2 cm., edges gaping. 19. Multiple abrasions (8 in numbers), measuring approximately 10 2 x 1 cm. on left upper limb. 20. Incised wound at upper 1/3rd, right thigh transverse, redish, 3 x 2 x 1 cm. edges gaping 21. Incised wound left elbow, redish, 5 x 3 x 2 cm. edges gaping with bone exposed. 22. Incised wound right side patella fracture redish, 4 x 3 x 2 cm. edges gaping 23. Abrasion on neck left side, 8 x 1 cm. , redish, edges gaping. He opined that all the injuries were ante mortem and on internal examination he noticed (i) fracture of left parietal bone with brain matter extruding through; (ii) fracture of left fronto parietal bone with brain matter coming through the injury; (iii) bleeding at place of cerebrum, laceration of brain on left side with intra cerebral haemorrhage - redish. He, therefore, opined that the cause of death was head injury with fracture of skull bones with laceration of brain associated with multiple incised wounds and abrasions. The post mortem report is at Exh.140. 5. Injured P.W.3 Shivkanta was examined by P.W.12 Sunil 11 Gaikwad on 1.7.1997 at 6.30 p.m. He noticed the following external injuries :- 1. Contused lacerated wound right index finger, 4 x 2 x 1 cm. 2. Contused lacerated wound right ring finger on tip, 1 x 1 x 1/2 cm. He, therefore, opined that the injuries might have been caused within 24 hours by hard and blunt object. He accordingly issued the certificate at Exh.156. According to him, in the certificate he had erroneously written that the injured had appeared on her own. He then states that the injuries were possible by sharp cutting instrument like sword. 6. Injured Ramrao was examined by P.W.27 Dr. Subhash Deshmukh who was attached to the Government Hospital at Nanded as a Medical Officer. On his examination of injured Ramrao on 1.7.1997 at 10.15 a.m., he noticed the following external injuries :- 1. Incised wound on scalp, 2 cm x 1 cm 2. Incised wound on scalp, 2 cm x 1 cm 3. Incised wound on right ear, 4 cm x 1 cm 12 4. Incised wound on left eye-brow, 2 cm x 1 cm 5. Incised wound on nose, 2 cm x 1 cm. 6. Incised wound on right shoulder, 8 cm x 2 cm. tedenter 7. Crush injury on right little finger, finger loss 8. Incised wound on right elbow tedenter 2 cm. 9. Incised wound on left shoulder, 1 cm x 1 cm. 10. Deep incised wound on right knee, 5 cm x 2 cm. 11. Incised wound on left knee, 4 cm. x 1 cm. He states that he has taken a note of the injuries in the M.L.C. Register and admission paper. He produced the copy of the medico-legal register at Exh.198. He states that on the same day at 11.30 a.m. he had examined injured Rajaram s/o Gunaji Dhonde, resident of Shevadi Bajirao and had noticed the following injuries :- 1. Compound fracture on left ulna, lower 1/3 2. Fracture on right ulna, lower 1/3 3. Incised wound on scalp, 3 cm x 1 cm. 4. Incised wound on left index finger, 1 cm x 1/2 cm. 5. Incised wound on left knee, 3 cm x 1 cm. 6. Lacerated wound on left leg, 4 cm x 1 cm. 7. Multiple lacerated wound on right leg, 2 cm x 1 cm and 2 cm x 1 cm. 13 He states that injured Rajaram was discharged from the hospital on 16.7.1997 while injured Ramarao Potphale was discharged on 10.8.1997. 7. P.W.19 A.P.I. Ashok Mairal recorded the statements of witnesses and made efforts at arresting the accused. On 3.7.1997 he issued a requisition to the Tahsildar, Loha for drawing the sketch of the scene of the offence. On 6.7.1997 he arrested accused Tanaji from the house of one Vithal Petkar at Kandhar. During the search of the accused one shirt and a trouser stained with blood came to be seized under seizure memo at Exh.175 in the presence of panch witnesses. He learnt that some of the accused had gone to village Shiradhon and accordingly arrested accused no.4 Hanumanta and accused no.5 Maharudra at Shiradhon. On 8th he searched for the accused but the accused were not found. On 9.7.1997 accused no.6 Balaji came to be arrested. From 10.7.1997 till 16.7.1997 steps were taken for locating the whereabouts of the accused. On 17.7.1997 at Nanded he noticed accused no.7 Nagnath, accused no.8 Umakant and accused no.9 Madhav and accordingly arrested them. Police Constable Kendre had produced accused no.10 Hariram, accused no.12 Shivsamb, accused no.11 Baban and accused no.13 Tukaram. The accused then came to be arrested. 14 On 18.7.1997 accused no.15 Shivraj, accused no.14 Laxman and accused no.16 Balaji came to be arrested. On 19.7.1997 accused Hariram and accused Baban came to be arrested. During custodial interrogation accused Hariram expressed his willingness to point out the place where the sword was concealed. The statement of accused Hariram came to be recorded in the presence of panchas at Exh.134. The accused then led the police and the panchas to his house and produced a sword which was kept beneath the roof. The said sword came to be seized under seizure memo at Exh.135. The said sword is Article 18. During custodial interrogation accused Baban had expressed his willingness to point out the place where an axe was hidden by him as per the memorandum at Exh.136. The accused accordingly led the police and the panch to his house and removed an axe which had been hidden under the heap of groundnut, which axe Article 19, came to be seized under seizure memo at Exh.137. During custodial interrogation accused Balaji expressed his willingness to produce a Katti which had been concealed by him as per the memorandum statement at Exh.143. Accordingly accused Balaji led the police and the panch to his house and produced a Katti which had been buried behind his house. The said Katti came to be seized vide seizure memo at Exh.144. The said Katti is Article 20. During custodial interrogation accused Laxman agreed to produce an axe vide 15 memorandum at Exh.145. Accordingly accused Laxman led the police and the panch to his house and produced an axe which had been hidden beneath the roof. The said axe Article 21 came to be seized vide seizure memo at Exh.146. During custodial interrogation accused Shivaji expressed his willingness to produce an axe concealed by him as per the memorandum at Exh.147. Accordingly accused Shivaji led the police and the panch to his house and produced an axe which was concealed by him beneath the gunny bag of jowar. The said axe Article 22 came to be seized under seizure memo at Exh.148. On 21.7.1997 during custodial interrogation accused Mahadu (no.9) expressed his willingness to produce a Katta which had been concealed by him. Accordingly memorandum at Exh.161 came to be drawn. Accused no.9 Mahadu led the police and the panch and removed a Katta which had been concealed beneath the heap of fodder. The said Katta Article 23 came to be seized under the seizure memo at Exh.161. During custodial interrogation accused Tukaram expressed his willingness to produce a sword which had been concealed by him. Accordingly a memorandum at Exh.163 came to be drawn. Pursuant thereto the accused led the police and the panch to his house and produced a sword which had been concealed by him in the fodder tray. The said sword Article 24 came to be seized under seizure memorandum at Exh.164. On 22.7.1997 accused no.18 Sambhaji came to be arrested. On his 16 resuming the duties after his absence from 25.7.1997 to 5.8.1997, he learnt that one P.S.I. Padwal had arrested accused no.21 Sadashiv, accused no.20 Babu and accused no.19 Gangadhar. On 12.8.1997 the seized articles were referred to the Chemical Analyser, Aurangabad along with the Police Constable Pawar and police Constable Didke with a requisition at Exh.176. 8. Further to the completion of investigation, a charge-sheet against the respondents came to be filed. All the accused who were named in the first information report were not arrested and consequently as and when the accused came to be arrested, supplementary/additional charge-sheet came to be filed against the accused and the accused were tried. All the appeals relating to this incident and the other incident in which Ramrao and Rajaram were injured have been heard by us and those appeals have been decided by separate judgments. 9. On committal of the case to Court of Sessions, the Trial Court framed charge against the accused for offence punishable under section 147, 148, 302, 324 read with sec. 149 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 29 witnesses. The Trial Court for reasons, to which we shall advert shortly, acquitted all the accused. The State being thus aggrieved by the acquittal of the respondents/accused has filed the present appeal. 17 10. Before we deal with the submissions advanced before us by the learned Special Public Prosecutor Shri Sapkal and the learned Counsel for the respondents Shri R.N. Dhorde, Shri Joydeep Chatterji and Shri Vijay Sharma, it would be useful to refer to the evidence of the prosecution witnesses. The prosecution has examined P.W.16 Kailash Dhonde, the first informant as well as the eye-witness. P.W.16 Kailash states that he is resident of Shevadi since birth. To the north of Shevadi locality is the Basweshwar chowk. The Basweshwar chowk is a cross road from where the road runs towards Karegaon and Penur. He further states that the Chikale Wada is at a distance of about 400 ft. from his house. The water reservoir is about 700 ft. towards the south of Chikale Wada and is at a distance of 700 ft. from the Basweshwar chowk. According to him, he was a Sarpanch of village Shevadi since 31.8.2000. In the election of the year 2000 the Grampanchayat members have been elected unopposed. The previous elections were held in 1995 and he had contested the 1995 election from ward no.3. Accused Ramrao Nagoji Potphale had also contested against him. He states that in the election he was declared as a successful candidate. He further states that there are two panels in the village; one headed by deceased Babarao and the other by Ramrao. He states that 18 he belonged to the panel of Babarao and six candidates from the panel of Babarao and five from the panel of Ramrao had been elected in the elections which were held in 1995. The Sarpanch and the Deputy Sarpanch were elected from the panel of Babarao. He further states that accused Ramrao Potphale was a Sarpanch of village Shevadi for nearly 25 years. Since accused Ramrao had misappropriated Grampanchayat funds, P.W.16 Kailash and others had reported against Ramrao to the Collector as well as the Chief Executive Officer of Zilla Parishad. He states that an inquiry had been conducted and charges had been proved against accused Ramrao and accused Ramrao came to be removed from the post of Sarpanch. He states that Ramrao had been removed prior to the elections held in 1995. P.W.16 Kailash further states that about six months prior to the incident, his brother Madhav had been assaulted by Ramrao and his companions and a criminal case is pending against Ramrao and others. 11. In respect of the incident, he states that on 1.7.1997 he along with his brother Madhav and his father were present in the house in the morning. At about 8.30 a.m. his father deceased Babarao had gone towards their cattle shed. Immediately at about 9.00 a.m. he had heard some commotion coming from the house of Manik Chikale and, therefore, he had rushed towards 19 the Chikale Wada. He noticed his father Babarao lying in the courtyard of Chikale Wada with some persons assaulting him. He names the assailants and also states about the various weapons with which the assailants were armed. He states that on seeing him accused Maroti shouted for catching him and, therefore, he entered the house of Manik Chikale and closed the door. He states that he came out of the house after half an hour and noticed the dead body of his father Babarao in the courtyard. Blood had oozed from the wounds sustained by Babarao. He states that he was weeping near the dead body when the police arrived. He further states that his sister P.W.3 Shivkanta and mother Radhabai were present at the scene of the offence. He further states that his sister P.W.3 Shivkanta was already present at the scene of the offence when he entered the Chikale Wada. He states that he had narrated the incident to the police and his narration was reduced into writing at Exh.166. During identification of the accused he wrongly identified accused Shivraj Hanmanta as Shivhar Hanmanta and accused Mohd. Gous as Babumiya Sheru. He also identified accused Dattatraya Shivdas Yesge and Babu Shivdas Yesge and Nagnath Ramrao Potphale as Tanaji Ramrao Potphale. He also identified Gunaji Sambhaji Dhonde as Damodhar Sambhaji Dhonde. In cross-examination he has admitted that his father Babarao was neither a Sarpanch nor a member of the Grampanchayat at any time. He has admitted 20 that he had never contested the election. P.W.16 Kailash has admitted that his age was 20 years in 1995. He has admitted that he could not state if Ramrao was a Sarpanch for 25 years uninterruptedly. He could not state if one Gabbar and Barde were also Sarpanch prior to 1995. He has admitted that he does not belong to any political party and does not know if accused Ramrao belongs to any political party. He has admitted that he cannot tell the amount which was misappropriated by Ramrao. He also could not state the amount which was alleged against Ramrao in the charge. He has, however, stated that the amount which was misappropriated was from the funds of