{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.630 OF 2008 1. Namdeo Raisingh Shinde APPELLANTS Age-48 years, 2. Sarjerao Raisingh Shinde Age-34 years, 3. Laxman Namdeo Shinde Age-27 years, 4. Bhimrao Raisingh Shinde Age-47 years, 5. Dharam Sakharam Mahajan Age-34 years, All R/o Chapadgaon, Tq-Ghansawangi Dist-Jalna VERSUS The State of Maharashtra RESPONDENT ....... Mr.Joydeep Chatterjee & Mrs.S.S.Jadhav, Advocates for appellants Mr.K.B.Chaudhari, Addl.P.P. For respondent State Mr.M.V.Ghadge h/f Mr.B.N.Gadegaonkar, Assist to Addl.P.P. ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] {2} DATE : 4th October 2010 ORAL JUDGMENT (PER A.V.POTDAR, J) : 1. By the present criminal appeal, the appellants, original accused No.1, 3, 4, 8 and 9 in Sessions Case No.115/2006 have questioned the legality and correctness of the judgment dated 20.09.2008 rendered by Ad Hoc Additional Sessions Judge-1 Jalna. By the said judgment, the appellants are convicted for the offence punishable u/s 147 of the Indian Penal code and are sentenced to suffer RI for six months and to pay fine of Rs.500/- each, in default to suffer RI for seven days, appellants are also convicted for an offence punishable u/s 148 of the Indian Penal code and sentenced to suffer RI for six months and to pay fine of Rs.500/- each, in default to suffer RI for seven days so also the appellants are convicted for an offence punishable u/s 324 r/w 149 of the Indian Penal code and sentenced to suffer RI for six months and to pay fine of Rs.500/- each, in default to suffer RI for seven days, respectively. The appellants are also sentenced to life imprisonment for the offence punishable u/s 302 r/w 149 of the Indian Penal Code and to pay a fine of Rs.2000/- each, in default, to suffer further RI for six months. 2. The facts, in nutshell, leading to the present appeal, may briefly be stated thus- {3} a) On 10.04.2006, Raju Mahajan (PW-1) lodged a report (Exhibit-80) with Ambad police station against the appellants and 8 others, which is registered at crime No.60/2006 for the offence punishable u/s 143, 147, 148, 149 and 307 of the Indian Penal Code and u/s 135 of the Bombay Police Act. Thereafter the investigation was entrusted to Bapurao Trimbak Kuramkar, Police Inspector. During the investigation appellant No.1 and 7 others were arrested on 11.04.2006 and the same day i.e. on 11.04.2006 injured Sitaram expired and hence offence registered u/s 307 of the Indian Penal Code was converted into u/s 302 of the Indian Penal Code. Injured persons were referred to Civil Hospital Jalna and were examined by Dr.Ritesh (PW-17) and he noticed contused lacerated wounds, contusions, bleeding injuries and abrasions on the persons of injured Dhondibai, Sarjerao Jadhav, Namdeo Mahajan, Shivaji Motiram Mahanaj, Pandurang Mahajan, Baban Mahajan and Raju Mahajan. b) While the appellant No.1 Namdeo was in police custody, he made disclosure statement (Exhibit-115) and at his instance the weapon (stick) used during the assault was recovered in presence of Panchanas and accordingly Panchanama (Exhibit-116) was drawn. c) Police Inspector, Kuramkar visited the spot and drew spot Panchanama (Exhibit-117) and seized one stone, one axe, one cap, one shoe, blood smeared soil and plain soil and thereafter {4} recorded statements of certain witnesses. The clothes on the persons of the accused, at the time of their arrest, were seized under different Panchanamas. During the investigation, on willingness of appellant Bhimrao, his disclosure statement (Exhibit-118) was recorded, which resulted in recovery of two sticks, which were seized in presence of Pancha under Panchanama (Exhibit-119). Clothes on the persons of the witnesses Ankush and Abasaheb were also seized. So also the clothes on the persons of the injured were also seized under Panchanamas (Exhibit-91 to 96). The seized articles were sent to Chemical Analyses along with covering letter (Exhibit-120). Thereafter, as the Police Inspector was transferred, the further investigation was handed over to API Sonawane (PW-15). d) After completion of the investigation, API Sonawane (PW-15) submitted charge sheet against the appellants and 8 others before the JMFC, Ambad e) Dr.Ravindra Ghute (PW-12) conducted Post Mortem on the dead body of Surtiram on 11.04.2006 and noticed the following external injuries. i) Laceration over forehead right side 2X1 inch X bone deep. ii) Lacerated wound over scalp parital region Rt. Side. 3X1.5Xbone deep, and fracture of skull. {5} Iii) Laceration over scalp occipital region left side 1X1cmXbone deep. iv) Lacerated wound over lateral aspect of Rt.eye 2cmX1cm v) Contusion over Rt. Elbow 4cm X 3 cm vi) Contusion over chest Rt 4 inch X 3 inch vii) Contusion over abdomen Rt 5 inch X 3 inch viii) Abrasion over Rt. Knee 3 cm X 2 cm ix) Contusion over left leg upper 4 cm X 3 cm x) Laceration over left leg 2 inch X 1 inch X bone deep He also found the following internal injuries. i) Fracture skull parietal region Rt ii) Fracture to ribs Rt No.2, 3, 4 and 5 iii) Fracture to skull parito temporal region Rt 3 inch long intra vanial hemorrhage. In right lung there was a laceration present over part lobe of lung. He was of the opinion that the cause of death is due to head injury. According to him, these injuries are sufficient to cause death in the ordinary course. He has also opined that the said injuries are possible by the articles like axe and stick. f) After passing of the necessary committal order, the {6} trail was committed to the court of Sessions Jalna, where charge was framed by Ad Hoc Additional Sessions Judge against the appellants and others for the offence punishable u/s 143, 147, 148, 302 r/w 149, 324 r/w 149 of the Indian Penal Code and u/s 135 of the Bombay Police Act. g) The prosecution has examined in all 17 witnesses including the complainant and 5 eye witnesses, 7 Pancha witnesses, two medical officers-one who conducted Post mortem on the dead body of Surtiram and the one who had examined the injured eye witnesses and others and 2 investigating officers. h) Relying on the testimony of the complainant and other witnesses, the trial court convicted the appellants, as stated earlier and acquitted the remaining accused vide the impugned judgment. 3. Before we embark upon the rival submissions of the parties, we feel it necessary to advert to the evidence of material witnesses. i) It was tried to suggest to PW-12, Dr.Ravindra Ghute, who has conducted Post mortem on the dead body of deceased Surtiram, that the hard and blunt object includes stones of various types, however he denied that the depress fracture is possible due to hit by a stone. He has admitted that there is possibility of depressed fracture by any stone, if the blow is given {7} from very near and contusions and abrasions are possible by falling on the stones also. He was also questioned that generally, rib fractures can occur if buffalo or animal gave dash. We are not impressed with the cross-examination on the point that the injuries in the nature of rib fracture were caused to the deceased due to dash by buffalo or any animal. For, there is no cross- examination of the eye witnesses to that effect. Thus, there is no hesitation in our mind that the death of Surtiram is a homicidal one. The point required to be considered is as to whether the injuries caused to deceased Surtiram are intentional or not. ii) From perusal of the evidence of PW-17, Dr.Ritesh Agrawal, who has examined injured eye witnesses, and considering the fact that his testimony is not shaken even during the cross- examination, there is no hesitation in our mind that the nature of injuries sustained by the said injured eye witnesses was grievous in nature. iii) It is stated by PW-1 Raju Mahajan (Complainant), son of the deceased, that appellant No.1, who had contested election of Gram Panchayat, was defeated and hence relations between the appellants and the deceased were strained. He has stated that appellant No.1 Namdeo is husband of his paternal aunt. He has also stated that there was dispute between the appellants and deceased as cattle of the appellants had entered in the field of the deceased. He has further stated that on the day of the incident {8} there was fair of Mahadeo and during the said fair there was offering for the son of his uncle Hiraman and for that purpose tambourine and band was being played at their instance. While his father, deceased Surtiram, was following his uncle Hiraman, the appellants, who were hidden behind a muddy wall, assaulted on the head of his father with sticks. His father fall on the ground and at that time appellant Bhimrao inflected a sickle blow and appellant Laxman hit stone on the head of his father. On seeing the incident, his uncles Shivaji and Namdeo rushed to the spot and accused Kakasaheb and Ram Shinde assaulted them with sticks and axes. At that time, to save his father, his aunt Dhondibai (PW-4), covered body of his father with her body then appellants Sarjerao and Dharma gave stick blows to her. During the incident, his relative Sarjerao Shinde and others were assaulted by the appellants and other accused. Thereafter, initially his father and the injured were taken to the hospital at Rani Unchegaon from where they were taken to Civil Hospital Jalna on medical advice. In the hospital at Jalna, his statement (Exhibit-80) was recorded, which was treated as FIR. It transpired from his cross-examination that at the time of the incident, work of road repairs was in progress and stones were spread on the road. Election of Gram Panchayat was held about 3 to 4 years back. The said elections were contested by appellant Namdeo, his uncle Shivaji and one Ambadas in which said Ambadas was elected. On the day of the incident for offering to {9} deity, four persons were engaged for playing band and tambourine and about 20/25 persons including women had participated in the said ceremony. The participants were dancing in the said procession. Suggestion given to the witness that son of Arjun was not keeping well and was frightened due to the noise of playing band and tambourine and hence the participants, who were under the influence of liquor, were requested to move further. This suggestion was denied by the witness. In the further cross- examination he has admitted that due to exchange of words between two groups, stone pelting was going on for about 10/12 minutes. The lunch for the offering took place after 10 to 15 minutes after the stone pelting was over. One Abasaheb tried to pacify the parties, however, nobody was in a mood to listen and hence he left the spot. Houses of Omaji and Ansaram are on the northern side of the house of Arjun and beyond that there is a place to keep she buffaloes. At the relevant time, 4/5 buffaloes were tied there and his father fall at that place. According to him the incident occurred at about 3.00 to 3.30 p.m.. Certain omissions are proved in his cross-examination. The procession was in progress in the evening around 6.30 to 7.30 p.m. in which female members and other 25/30 persons had participated. At that time, the appellants and others came there and asked them as to why they were playing the tambourine and on that count squabbling took place, which fact stated in the complaint is denied by him. Further omissions are proved that there was dispute between his father and the appellants on the count that when the {10} cattle of appellants had entered into their field the deceased had questioned the appellants and then the appellants had abused his father. He admitted that he has not stated before the police that as four persons attempted to assault his father, his father had ran away and due to the stick blow given by appellant Namdeo, his father had fallen on the ground and at that time appellant Bhimrao gave sickle blow and appellant Laxman hit his father with a stone on his head at that time the other accused had assaulted the injured witnesses as well as the complainant himself. When he was questioned about the injuries sustained by the appellants and other accused during the said incident, he did not offer any explanation, however admitted that a report is lodged by the appellants in respect of the assault on them and after committing the trial in the said offence Sessions Case NO.172/2007 is registered, which is still pending. iv) It transpired from the evidence of PW-3 Ambadas Shankar Mahajan, who is examined in duel capacity as a Pancha witness to Exhibit-83 and to the spot Panchama so also he claimed to be the eye witness of the said incident. He has stated that in the process for offering to the deity tambourine was being played and due to that the appellants had pelted stones on the house of deceased Surtiram. He states that at that time, he and one Abasaheb tried to intervene and pacify the situation and after the situation was calmed down, they went to their houses and after some time again stone pelting was started. He has stated that at {11} this time deceased Surtiram ran towards the house of Abasaheb then appellant No.1 gave a blow of a stick on his head, appellant No.4 gave a sickle blow and appellant No.2 gave a blow of an axe on the head of the deceased while appellant No.3 hit stone on the head of the deceased. Thereafter, the appellants fled from the spot. According to this witness, the said incident occurred at the distance of 8 to 10 feet from his house. In his cross-examination, he has denied his statement before the police that on that day quarrel had taken place between the two groups due to playing of tambourine and then stone pelting was started by both the sides. He also denied that he has stated before the police that during the said incident the appellants and others also sustained injuries. In his further cross-examination, omissions are proved that during the incident, appellant Bhimrao inflicted sickle blow on deceased Surtiram, appellant Laxman hit stone on the head of the deceased and deceased Surtiram was chased by the appellant and was then assaulted by the appellants and other accused. He has stated that at the time of the incident Surtiram was running towards his house. v) Next material witness is PW-4, Dhondibai Mahajan. It transpired from her evidence that her husband Shivaji (PW-11) had contested election against appellant Namdeo and on that count there was dispute between the family of the appellant and the complainant. According to her, on the day of the incident, there was a fair of Mahadeo and for the offering of the deity tambourine {12} was being played and hence a quarrel had taken place between her husband and appellant No.2 Sarjerao and Arjun and other accused. The said quarrel was pacified by PW-3 Ambadas and one Abasaheb and after the situation was calmed down, after about 5 minutes, she had heard abuses and hence, her husband PW-11 had rushed to the spot and noticed that the appellants were assaulting Surtiram and he was fallen on the ground. To save Surtiram, she had covered his body with her body and therefore, she was also assaulted with sticks, axe, sickle and stone. Thereafter she lost her consciousness and regain the same in the hospital at Jalna. It transpired from her cross-examination that the dispute had arouse between the two groups on account of playing of tambourine and hence there was stone pelting by both the sides and so also exchange of words before the incident in question took place. In her cross-examination, omissions are proved that the Gram Panchayat election was held 3 years prior to the incident. She has stated that appellants Laxman and Dharam beat her with stone and sickle. She express her ignorance in respect of the injuries sustained by the appellants during the said incident. vi) Next eye witness is Namdeo Mahajan (PW-9). It transpired from his evidence that he is the brother of deceased Surtiram. There was dispute between the two groups over Gram Panchayat election. On the day of the incident there was fair of Mahadeo. Appellant No.1 abused them and quarrel had taken {13} place near the house of Ambadas and during the said quarrel, the appellants had assaulted Surtiram with sticks and axe and at that time Dhondibai had covered his body with her body. He has further stated that one Baban gave blow of axe on his head, Arjun and Rama gave stick blows on his legs and hence he had lost his consciousness and regain the same in Ghati hospital, Aurangabad. In his cross-examination omissions are proved that he has not stated in the statement before the police that Dhondibai had covered body of Surtiram by her body. He also gave certain admissions in the cross-examination that he was arrested at Lonar in a theft case about 5/6 days prior to the incident and at that time he was assaulted by the villagers and he had sustained injuries. He has also express his inability to explain the injuries sustained by the appellants and others. vii) Next material eye witness is Sarjerao Jadhav (PW-10). He is father of daughter in law of deceased Surtiram. He has stated that on the day of the incident, in the evening, a quarrel had taken place between Surtiram and appellant No.1. He and one Abasaheb tried to intervene and pacify the situation. Thereafter within 15 to 20 minutes, the appellants started pelting stones and while Surtiram was proceeding towards the house of Abasaheb, the appellants assaulted him and on hearing his shouts, this witness had rushed to the spot and he was also assaulted by appellant No. 2 and one Eknath by handle of axe and hence he had lost consciousness and was taken to the hospital where he regained {14} the consciousness. He has denied his statement before the police that the quarrel had taken place due to playing of tambourine and the spot of the incident is near the house of Ambadas. Certain omissions are proved in his cross-examination that he and Ambadas had settled the earlier quarrel between Surtiram and appellant No.1. The appellants and others started stone pelting. Appellants Laxman and Bhimrao assaulted the deceased with axe and sickle. He also denied the suggestion that the appellants had also sustained injuries in the said incident. viii) Next material witness is Shivaji Motiram Mahajan (PW-11), who is the brother of deceased Surtiram and husband of Dhondabai (PW-4). He has stated in the evidence that the incident occurred due to enmity between the appellants and themselves as he had filed nomination form against the appellant No.1 in Gram Panchayat election and hence appellant No.1, appellant No.4 and others had threatened him and, therefore, he had withdrawn the nomination, however the appellant No.1 could not succeed and hence he had developed a grudge against them. Therefore, there was dispute between the complainant party and the appellant party. He has also stated that due to fear of the appellants he had left the village and had returned just before the day of the incident on account of fair and offering. He has further stated that on the day of the incident, there was ceremony of offering to the deity for the son of his brother-Hiraman. When Hiraman was in the procession, appellant No.2 Sarjerao obstructed him and appellants {15} No.1 and 4 started pelting stones at them, however one Abasaheb pacified the situation. However, some time thereafter they heard shouts and hence he along with his wife PW-4 Dhonodabai and brother PW-9 Namdeo rushed there then appellant No.2 gave a blow of axe on his head while accused Kakasaheb gave stick blow on his head and back. The appellants also assaulted Surtiram with sticks, axe and hence Surtiram was fall on the ground. Thereafter, this witness states that he became unconscious and regain the same in Ghati Hospital at Aurangabad. He has also stated that his brother Namdeo his wife Dondabai and one Sarjerao were also referred to the said hospital for treatment. He has admitted in the cross examination that the said Gram Panchayat elections were held 2 and ½ year prior to the alleged incident. Omissions are proved in his cross-examination that in that afternoon after the quarrel was pacified by Appasaheb thereafter on hearing shouts he had rushed to the spot and learnt that Surtiram had been to the house of Abasaheb. Likewise, other omissions are also proved in his cross examination that he was compelled to leave the village due to fear of the appellants and that Hiraman was obstructed by the appellants and then stone pelting started and that his wife covered the body of Surtiram to save him from assault. He has expressed his ignorance regarding the injuries sustained by the appellants in the said incident. He has denied the suggestion that as son of accused Arjun was ill the appellants had requested them not to play or blow the tambourine in front of their house and to proceed further, however they did not listen. He has admitted that {16} the appellants had also filed a case against the witnesses and others and the same is pending in a criminal court. 4. Heard the submissions of the learned counsel for the parties in the light of the above referred evidence of the material witnesses. 5. Learned counsel for the appellants pointed out material variation from the ocular evidence given before the trial court. Our attention is drawn towards the testimony of complainant Raju Mahajan who has tried to project that the appellants were hidden behind a mud wall and on seeing Surtiram they had assaulted him so also the injured witnesses were assaulted by the appellants when they tried to intervene and save Surtiram, however, this evidence is not supported by other injured eyewitnesses. Our attention is also drawn towards aspect that though it is tried to project that the appellants and complainant party were on enimical terms due to dispute over Gram Panchayat election and that was the motive behind the said assault, yet it is clear that the said elections were held about 30 months prior to the said incident dated 10.04.2006. Our attention is also invited to the fact that though PW-1, PW-4 and PW-11 have stated that appellants No.1 and 4 had abused the deceased and were harassing them due to defeat of appellant No.1 in Gram Panchayat election, yet no supporting evidence has came forth that any complaint was filed in respect of abuse or harassment. Further it {17} is brought to our notice that the injuries sustained by the appellants were not explained or not come in the evidence of the prosecution witnesses when the investigating officer, in no uncertain terms, has admitted that during the said incident the appellants had also sustained injuries and a complaint is also filed by the appellants against the complainant and his relatives on the same day in the same police station. It is also urged by learned counsel for the appellants that soon before the alleged incident a quarrel had taken place between the two groups which culminated into free fight and, therefore, it is contended that the death of Surtiram was an accident and there was no intention to kill him. According to learned counsel for the appellants, considering the overall effect of the martialing of the evidence it is clear that the case of the appellants fall under 4th exception to section 300 of the Indian Penal Code and hence it is requested to allow the appeal and acquit the appellants. Learned APP opposed these submissions and supported the impugned judgment. 6. Considering the rival submissions and on perusing the evidence on record, there is no doubt in our mind that the death of Surtiram