- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.34 OF 1993 NO.34 OF 1993 NO.34 OF 1993 Sham Shankar Kankaria, ) Aged about 28 years, residing at ) Thakare Road, House No.99, Nasik, ) District - Nasik. ).. Appellant (Org.Accused No.1) Versus 1. The State of Maharashtra, ) 2. Mrs.Hirabai Kashinath Kedare, ) r/o. H.No.1342, Bhadrakali, ) Nasik. ).. Respondents -- Shri M.S.Karnik for the appellant. Shri B.H.Mehta, APP for State-Respondent. -- WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.110 OF 1993 NO.110 OF 1993 NO.110 OF 1993 Shri Dattatraya Vinayak Bothare, ) Aged about 23 years, residing at ) Old Tambat Lane, House No.1785, ) Nashik, District - Nashik. ).. Appellant (Org.Accused No.6) Versus 1. The State of Maharashtra, ) 2. Mrs.Hirabai Kashinath Kedare, ) r/o. H.No.1342, Bhadrakali, ) (Khadkalli), Nasik. ).. Respondents -- Mrs.Latika Khemani for Shri Prakash Khemani for appellant. Shri B.H.Mehta, APP for State-Respondent. -- - 2 - WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.111 OF 1993 NO.111 OF 1993 NO.111 OF 1993 Khandu Deoram Abhang, ) Aged about 19 years, residing at ) Tambat Lane, House No.1785, Nashik,) District - Nashik. ).. Appellant (Org.Accused No.5) Versus 1. The State of Maharashtra, ) 2. Mrs.Hirabai Kashinath Kedare, ) r/o. H.No.1342, Bhadrakali, ) Nasik. ).. Respondents -- Shri D.A.Patil for appellant. Shri B.H.Mehta, APP for State-Respondent. -- WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.112 OF 1993 NO.112 OF 1993 NO.112 OF 1993 Sanjay alias Jaya Nandkumar Ranbhise) Aged about 21 years, ) Occupation - Service, residing at ) Renuka Nagar, E-1/2, Nashik, ) District - Nashik. ).. Appellant (Org.Accused No.3) Versus 1. The State of Maharashtra, ) 2. Mrs.Hirabai Kashinath Kedare, ) r/o. H.No.1342, Bhadrakali, ) Nasik. ).. Respondents -- Shri N.V.Walawalkar for the appellant. Shri B.H.Mehta, APP for State-Respondent. -- - 3 - WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.114 OF 1993 NO.114 OF 1993 NO.114 OF 1993 Rajesh Bajirao Bhavar, ) Age 21 years, R/o.Mebasrul, ) H.No.1925, Nashik. ).. Appellant (Org.Accused No.4) Versus 1. The State of Maharashtra, ) through Bhadrakali Police ) Station, Nashik. ) 2. Mrs.Hirabai Kashinath Kedare, ) Mother of the deceased. ).. Respondents -- Shri B.G.Vaidya for the Appellant. Shri B.H.Mehta, APP for the State. -- WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.116 OF 1993 NO.116 OF 1993 NO.116 OF 1993 Raju Ayyub Pathan, ) Age 21 years, R/o.Jagadeshvar ) Society, Sahakar Nagar, Block No.4,) Ganjmal, Nashik. ).. Appellant (Org.Accused No.2) Versus 1. The State of Maharashtra, ) 2. Mrs.Hirabai Kashinath Kedare, ) r/o. H.No.1342, Bhadrakali, ) Nasik. ).. Respondents -- Shri Niteen Pradhan with Ms.S.D.Khot for the Appellant. Shri B.H.Mehta, APP for the State. -- - 4 - WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL APPEAL APPEAL NO.241 OF 1993 NO.241 OF 1993 NO.241 OF 1993 The State of Maharashtra. ).. Appellant Versus 1. Sham Shankar Kankaria, ) Age 28 years, r/o. Thakare Road,) House No.99, Nasik. ) 2. Raju Ayyub Pathan, ) age 21 years, r/o.Jagadeshvar ) Society, Sahakar Nagar, ) Block No.4, Ganjmal, Nashik. ) 3. Sanjay Nandkumar Ranbhise, ) age 21 years, r/o.Renuka Nagar, ) Room No.C/5/9, Nashik. ) 4. Rajesh Bajirao Bhavar, ) age 21 years, r/o. Mahasrul, ) H.No.1925, Nashik. ) 5. Khandu Deoram Abhang, ) age 18 years, r/o. Navapura, ) Thakare Road, Nashik, H.No.113. ) 6. Dattatraya Vinayak bothre, ) age 23 years, r/o.Old Tambat ) Lane, H.No.1785, Nashik. ).. Respondents (Org.Accused Nos.1 to 6) -- B.H.Mehta, APP for the Appellant- State. Shri M.S.Karnik for respondent No.1 - Accused No.1. Shri Niteen Pradhan with Ms.S.D.Khot for respondent No.2 - the accused No.2. Shri N.V.Walawalkar for respondent No.3 - the accused No.3. Shri B.G.Vaidya for Respondent No.4- the accused No.4. Shri D.A.Patil for Respondent No.5 - Accused No.5. Smt.Latika Khemani for Respondent No.6 - Accused No.6. -- - 5 - WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL NO.242 OF 1993 APPEAL NO.242 OF 1993 APPEAL NO.242 OF 1993 The State of Maharashtra. ) .. Appellant Versus 1. Sham Shankar Kankaria, ) Age 28 years, r/o.Thakare Road, ) House No.99, Nasik. ) 2. Raju Ayyub Pathan, ) age 21 years, r/o.Jagadeshvar ) Society, Sahakar Nagar, ) Block No.4, Ganjmal, Nashik. ) 3. Sanjay Nandkumar Ranbhise, ) age 21 years, r/o.Renuka Nagar, ) Room No.C/5/9, Nashik. ) 4. Rajesh Bajirao Bhavar, ) age 21 years, r/o. Mahasrul, ) H.No.1925, Nashik. ) 5. Khandu Deoram Abhang, ) age 18 years, r/o. Navapura, ) Thakare Road, Nashik, H.No.113. ) 6. Dattatraya Vinayak Bothre, ) age 23 years, r/o. Old Tambat ) Lane, H.No.1785, Nashik. ).. Respondents (Org.Accused Nos.1 to 6.) -- Shri B.H.Mehta, APP for the Appellant - State. Shri M.S.Karnik for respondent No.1- Accused No.1. Shri Niteen Pradhan with Ms.S.D.Khot for respondent No.2- Accused No.2. Shri N.V.Walawalkar for Respondent No.3- Accused No.3. Shri B.G.Vaidya for Respondent No.4-the accused No.4. Shri D.A.Patil for Respondent No.5- Accused No.5 Smt.Latika Khemani for Respondent No.6- Accused No.6. -- - 6 - CORAM CORAM CORAM : R.M.S.KHANDEPARKAR & : R.M.S.KHANDEPARKAR & : R.M.S.KHANDEPARKAR & R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ JJ JJ DATED DATED DATED : 14th SEPTEMBER, 2004. : 14th SEPTEMBER, 2004. : 14th SEPTEMBER, 2004. JUDGMENT JUDGMENT JUDGMENT : ( Per R.M.S.Khandeparkar, J ) : ( Per R.M.S.Khandeparkar, J ) : ( Per R.M.S.Khandeparkar, J ) 1. All these appeals arise from the judgment and order dated 6th February, 1993 passed by the 3rd Additional Sessions Judge, Nasik, in Sessions Case No.126 of 1992 whereby the accused No.1 therein being convicted for the offence punishable under Section 304 (II) of Indian Penal Code and being sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.3,000/- in default to undergo rigorous imprisonment for one year and the accused Nos.2 to 6 being convicted for the offence under Section 325 read with 34 of Indian Penal Code and each of them being sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months, and further the accused Nos.1 to 6 being also convicted for the offence under Section 342 read with 34 of Indian Penal Code and each of them being sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.300/- in default to undergo rigorous imprisonment for one month. While the accused Nos.1 to 6 being acquitted of the offences under Section 302 read with 34 of the Indian Penal Code and Section 135 of the Bombay Police Act. The substantive sentence of - 7 - imprisonment awarded against the accused No.1 for the offences punishable under Section 304(II) as well as under Section 342 of Indian Penal Code has been ordered to run concurrently, so also the sentence imposed upon the accused Nos.2 to 6 under Section 325 and 342 read with Section 34 of the Indian Penal Code has been also ordered to run concurrently. 2. The Appeal No.34 of 1993 is by the accused No.1 Sham Shankar Kankaria; the Criminal Appeal No.110 of 1993 is by the accused no.6 Dattatraya Vinayak Bothare; the Criminal Appeal No.111 of 1993 is by the accused No.5 Khandu Deoram Abhang; the Criminal Appeal No.112 of 1993 is by the accused No.3 Sanjay alias Jaya Nandkumar Ranbhise; the Criminal Appeal No.116 of 1993 is by the accused No.2 Raju Ayyub Pathan; and the Criminal Appeal No.114 of 1993 is by the accused No.4 Rajesh Bajirao Bhavar. The Criminal Appeal No.241 of 1993 is by the State against the acquittal of the accused Nos.1 to 6 of the charge under Section 302 read with 34 of the Indian Penal Code and Section 135 of the Bombay Police Act, and the Criminal Appeal No.242 of 1993 is also by the State for enhancement of the sentence. All these appeals were heard together and are being disposed of by this common judgment. 3. The prosecution case in brief is that on 13th January, 1992 one Vijay @ Bablu, the son of Kashinath - 8 - Kedare, who was residing with his parents and other members of the family in House No.1342, situated at Khadkali area of Nasik city, was called by the accused No.3 Sanjay and the accused No.5 Khandu, and, therefore, he left his house at about 8.00 p.m. along with the said accused. He did not return till late night. At about 2 O’clock in the night between the 13th and 14th January, 1992, Khandu went to the house of Vijay and knocked the door of his house. On opening the door by Sanjay Kedare (P.W.9), the accused No.5 Khandu informed Sanjay that his brother Vijay was assaulted and was lying at some place. Sanjay thereupon accompanied Khandu who took him to Bharati Lodge, and further to the top floor of the Lodge where Sanjay found his brother Vijay in injured condition tied to the cot with his hands and legs tied. Sanjay also saw some blood oozing out from the head of Vijay. Sanjay released the hands and legs of Vijay and asked him as to how it had happened, whereupon he was told by Vijay that all the six accused after he being tied to the cot, assaulted him severely with instruments like iron pipe and wooden stick on the allegation that he had stolen a bicycle. Sanjay thereupon carried Vijay to his residence and Vijay once again narrated the said incident to his mother in the presence of Sanjay and from there, he was taken in a rickshaw to the Civil Hospital, Nasik. On the way to the hospital, Vijay became unconscious and on being admitted to the hospital, he was declared to have been - 9 - dead. Sanjay lodged complaint in writing at Bhadrakali Police Station where the offence was registered under Sections 302, 342, 143, 147 and 149 of the Indian Penal Code read with Section 37(1) read with Section 135 of the Bombay Police Act. On commencement of the investigation, all the six accused were arrested, their clothes were attached under the panchanama. The body of the deceased Vijay was subjected to the inquest panchanama as well as post-mortem examination. The medical officer opined that the death of Vijay was due to shock, intractranial haemorrhage and due to fracture of skull. After carrying out the spot panchanama, the articles at the spot of the incident including the blood scrapping were collected from the scene of offence. The iron pipe was recovered at the instance of the accused No.1 Sham Kankaria. Coir cord and pieces of wooden pegs having blood stains were attached from the spot of the incident. The seized articles were sent for examination by the Chemical Analyser. The blood sample of the deceased was also collected and sent for medical analysis along with the clothes on the body of the deceased. On conclusion of the investigation, all the six accused were chargesheeted. They were tried before the learned Additional Sessions Judge and were convicted by the impugned judgment and order, as stated above. 4. The accused persons being dissatisfied of the - 10 - conviction claiming to be innocent have filed their respective appeals. On the other hand, the State being dissatisfied with the acquittal of the accused under Section 302 read with 34 of the Indian Penal Code as well as being dissatisfied on the point of quantum of sentence imposed upon the accused has filed the appeals against the acquittal of the accused as well as for enhancement of the sentence. 5. The prosecution examined the complainant Sanjay Kedare (P.W.9), brother of the deceased as well as Hirabai Kedare ( P.W.10 ) mother of the deceased so also Rameshchandra Chotelal Kesharwani ( P.W.1) the Manager of New Bharati Lodge and Mushtaq Kagdi (P.W.3) the owner of the said Lodge, and Narendrasingh Rajput (P.W.4) the occupant of the said Lodge wherein the incidence in question occurred. The prosecution also examined the doctor being P.W.2- Dr.Ravindra Ashtaputre, who had performed post-mortem examination of the dead body of Vijay. One Isac Musa Shaikh (P.W.5), Kishor Somappa Devadiga (P.W.6), Shaikh Nazir (P.W.7) and Suresh Sonu Balal (P.W.8) were examined as the panchas. Shantaram Panditrao Gaikwad, PSI as P.W.11 and Surendra Bapu Patil, P.I. as P.W.12, were also examined being Investigation Officers. 6. The first information report (Exhibit-57) came to be lodged by Sanjay (P.W.9) at Bhadrakali Police Station, Nashik, at about 3.00 a.m. to 3.15 a.m. of - 11 - 14th January, 1992. The witness Sanjay in his testimony stated that he returned to his house on 13th January, 1992 at about 9.00 p.m. but he did not find his younger brother at home. On that day, the father had already left the house in the morning and he had also not returned till late night. After having dinner at about 9.30 p.m., the witness went to sleep, and at about 1.45 a.m. or 2.00 a.m., somebody knocked the door of his house and, therefore, the witness Sanjay and his mother Hirabai got up and the witness Sanjay opened the door of the house whereupon he saw the accused No.5 Khandu; Khandu informed the witness that Vijay was assaulted and was lying somewhere. His mother asked Sanjay to go and find out Vijay and accordingly the witness Sanjay left the house along with Khandu. The accused Khandu took the witness to Bharati Nivas Lodge situated on Thakure Road. The accused Khandu knocked the door of the Lodge and a boy opened the door from inside, whereupon the accused Khandu took Sanjay on the top floor of the Lodge where he saw his brother Vijay lying on the floor being tied to a cot. The hands and legs of Vijay were also tied. Vijay was asking for water. There was blood on the person of his brother and he had injury on his head. The witness untied the hands and legs of his brother and asked him as to who had assaulted him and for what purpose. Vijay told the witness Sanjay that he was assaulted by Sham Kankaria, Raju Pathan, Balya Bhandewala, Sanjay Ranbhise, Khandu Abhang and Raja - 12 - Bhavar on an allegation of theft of a bicycle. Vijay also told Sanjay that he was assaulted with a stick and pipe, and he was given blows on his head with the pipe and was given blows on his back and chest with a stick. Vijay further asked the witness to take him with the witness whereupon Vijay was brought downstairs and further to his house by the witness. Meanwhile, when Vijay was brought to the ground floor of the Lodge, the accused Khandu left the place. The mother of the witness asked Vijay as to who had assaulted him to which, Vijay told his mother whatever he had told earlier to his brother Sanjay. The mother asked the witness to bring rickshaw to take his brother Vijay to the hospital. Sanjay brought the rickshaw and took Vijay to the hospital. On the way to hospital, Vijay became unconscious and the Doctor, who attended Vijay for about 10 minutes in the hospital, declared Vijay to have been dead. It was at about 2.45 a.m. The witness immediately went to the Bhadrakali Police Station and lodged the complaint (Exhibit-57). At the time of the post-mortem and the inquest panchanama, the witness also identified the dead body of his brother Vijay. In the cross-examination, the witness stated that the boy who opened the door of the Lodge did not come upstairs with the witness when he had gone to the Lodge along with Khandu, and, at that time, no other occupant was seen in the Lodge. The boy who had opened the door was in the office of the Lodge. The witness also - 13 - stated that he had seen the blood lying at the spot and it had spread over an area having radius of 2 to 3 feet. The witness also stated that the person from the Lodge did not tell him as to what had happened to his brother nor he had made any inquiry with him. 7. Hirabai (P.W.10), the mother of the deceased in her testimony has stated that Vijay was at home on 13th January, 1992 upto 8.00 p.m., and after his meal, while he was playing with other children in the house, Khandu and Sanjay Ranbhise came to their house and asked for Bablu i.e. Vijay, whereupon, she called Bablu i.e. Vijay and when Bablu alias Vijay came out, Sanjay Ranbhise put his hand around the neck of Bablu and called him for a walk along with them. Thereafter, Bablu went along with Sanjay Ranbhise and Khandu. Sanjay Kedare (P.W.9) came to the house at about 9.00 p.m. and after having his meal, he went to sleep, so also the witness Hirabai went to sleep around 11 p.m. She has further stated that her husband who had left for work in the morning had not returned till late night. At about 1.45 or 2 O’clock in the night between 13th and 14th January, 1992, somebody knocked the door, and, therefore, herself and Sanjay got up and Sanjay opened the door and they saw Khandu in front of the said door of the house. Khandu informed Sanjay that his brother was assaulted and was lying somewhere. She thereupon asked Sanjay to leave immediately to get his brother. Sanjay accompanied - 14 - Khandu. Sanjay thereafter brought Bablu to the house in the injured condition. She noticed head injury on Vijay and linear marks on his chest, back and stomach. She inquired with Vijay, as he had gone with Sanjay Ranbhise and Khandu, as to who had assaulted him and Vijay told her that he was taken to the Lodge by Sanjay Ranbhise and Khandu and there he was beaten after having tied his hands and legs. He also told her that he was assaulted by Sanjay Ranbhise, Sham Kankaria, Khandu and their associates with bar, pipe and sticks on the allegation that he had stolen a bicycle. Vijay asked for water and after having water, Hirabai-the witness wrapped a bed sheet around his head. She asked Sanjay to get rickshaw forthwith. At that time, Vijay was feeling giddiness. Sanjay brought rickshaw and the witness herself, her son Sanjay and her daughter took Vijay to the civil hospital in the said rickshaw. On the way to the civil hospital, Vijay became unconscious and when they reached the hospital, he was examined by the doctor and the doctor had declared him to have been dead. Sanjay went to the police station to lodge a complaint. She identified the clothes of her son which were on his person at the time when he had left the house with Khandu and Ranbhise. In the cross -examination, she stated that one Balasaheb Aher accompanied Sanjay to bring rickshaw but he did not come with them to the hospital. - 15 - 8. Rameshchandra Chotelal Kesharwani (P.W.1), who was looking after the management of New Bharati Lodge, has stated in his testimony that the said Lodge is owned by Mushtaq Shaikh Tagadi, and one Narendrasingh Rajput ( P.W.4) was living in the Lodge on monthly basis since two months prior to the date of incident. Bharati Lodge has three storeyed building and it has medical shop on the 2nd floor, and the 3rd floor was not being used. On that day, when Narendrasingh Rajput left the Lodge for having his dinner, he kept the key in the window of the office of the Lodge. The witness was told by Narendrasingh that Sham Kankaria and his friends had taken one boy to third floor. He heard the voice of Sham Kankaria on the 2nd floor and also heard the sound of somebody weeping. As he was afraid of Sham Kankaria, he did not go upstairs. When Mushtaq Shaikh came to the Lodge, he was informed by the witness that Sham Kankaria and his friends had taken somebody to upstairs. At that time, the wit ness heard noise of weeping and giving abuses. Thereupon, Mushtaq followed by the witness Rameshchandra went to the 3rd floor and knocked the door of the room. The door was opened by Khandu whom the witness identified. He stated that he knew the accused Khandu one or two months prior to the date of incident. Mushtaq entered the Lodge and the witness stood on the threshold of the door. He saw the accused Sham Kankaria and Raju Pathan standing inside the Lodge and one boy was lying on the floor with his - 16 - hands and legs tied. The accused Sham Kankaria was having an iron pipe in his hand and accused Raju Pathan was having a wooden stick (Khuti) of the length of 1 and 1/2 feet in his hand. Accused Sanjay Ranbhise, Khandu Abhang and one Balya Tambat were standing and were alleging that a cycle was stolen. Mushtaq thereupon asked the witness to get water. The witness brought the water and gave it to the boy. Mushtaq also asked them to release the boy, and after some time, Mushtaq along with the witness came down from the 2nd floor. Mushtaq told all the persons to leave and asked to close the door of the Lodge after all of them leave the Lodge. Mushtaq left the Lodge after giving necessary instructions to the witness. He has further stated that when Mushtaq had come downstairs, he was followed by five persons but those five persons again went to the 3rd floor after Mushtaq left the Lodge. The witness heard the noise of beating and weeping after Mushtaq left the Lodge. The witness heard the voice of the accused Sham Kankaria and the sound of beating and weeping. Therefore, late in the night, the witness heard somebody knocking at the door of the Lodge on the ground floor. The witness then went to the ground floor and opened the door and he saw Khandu Abhang and one more person with him, however he did not know that person who had accompanied Khandu to 3rd floor on that occasion at late night hours. They brought the injured boy to the ground floor. The witness stated that the boy was - 17 - walking and was having blood on the back side of his shirt. He further stated that the blood was oozing from the backside of his head. The police officer came to the Lodge at about 3.00 a.m. in the night. He has also identified Article No.17 the iron pipe, as the one which was in the hand of Sham Kankaria and Article 12 comprising of three pieces of stick, as the one which was in the hand of Raju Pathan. 9. Dr.Ravindra Ashtaputre (P.W.2), who conducted the post-mortem on the dead body of Vijay, on external examination of the dead body, found the following injuries. "1. Contusion on left temporial region 2"x 2". 2. Contused lacerated wound on vault near occipital region 1" x 1/2" into bone deep. 3. Abrasions 5 in number circular 1/4" on face right side. 4. Swelling over left elbow 2" x 2". 5. Imprint abrasion encircling left wrist posterior aspect 1/2" x 2 1/2". - 18 - 6. Small abrasion on right wrist 1/2" x 1" on anterior aspect. 7. Contusion on left upper arm below deltoid 2" x 3/4". 8. Contusion on back left side 3" x 3/4" below scapula. 9. Abrasion on right upper arm 1/2" x 1". 10. Swelling with abrasion on right elbow 2" x 1". 11. Abrasions 2 in number on right forearm. 12. Contusion on both scapulae. Size 7" x 1" on left and 8" x 1" on right scapula. 13. Multiple abrasions on buttock. The other injuries discovered by external examination are palpation as fracturel. 1. Fracture of right elbow. - 19 - 2. Fracture of left wrist." In respect of the injuries noticed on the body of the deceased, the Doctor in his