1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. C.A. No.101/2008 in Criminal Appeal No.04/2008 Baburao Dhondu Lade and another Vs. State of Maharashtra C.A. NO.57/2008 in Criminal Appeal No. 05/2008 Fattu @ Fatiram s/o Udaram Meshram and 3 others Vs. State of Mah. C.A. No. 3966/2007 in Criminal Appeal No. 569/2007 Rajkumar Baburao Lade Vs. State of Mah. Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Mr. A. J. Khan, Adv. for the applicants (C.A. No.101/08) Mr. A.V. Muley, Adv. for the applicants (C. A. No. 57/08) Mr. A.S. Mardikar, Adv.(appointed ) for the applicant (C. A. No. 3966/07) Mr. J. B. Jaiswal, A. P.P. for the respondent ( in all the applications.) CORAM : A.P. LAVANDE AND A.B.CHAUDHARI, JJ. Order Reserved on : 1.4.2008 Order Pronounced on : 8.4.2008 Heard learned counsel for the applicants and learned A. P. P. for the respondent- State of Maharashtra. All these applications are being disposed of by common order since they arise out of the judgment and order dated 24/26th October, 2007 passed by the Additional Sessions Judge, Bhandara in Sessions Trial No. 33 of 2006. The 2 applicants in Criminal Application No. 101/2008 are original accused nos. 2 and 6, the applicants in Criminal Application No. 57/2008 are original accused nos. 7 to 10 and the applicant in Criminal Application No. 3966/2007 is original accused no.1. By the impugned judgment and order, all the applicants along with others have been convicted for offences punishable under Sections 147, 148, 452 read with Sections 149 and 302 read with Section 149 of the Indian Penal Code. By these applications, the applicants-accused seek suspension of substantive sentences and bail. The applicants, inter alia, convicted for offence of murder of Diwaru Kerwade and Shamrao Kerwade. Briefly, the prosecution case is as under:- Sindhubai Kerwade lodged oral report (Ex.76) at Police Station, Tumsar against accused nos. 1 to 6 and nephew of Baburao Lade, inter alia, having committed murder of her her husband Diwaru and her brother-in-law Shamrao. It is not in dispute that the accused are related to Diwaru and Shamrao. Sindhubai was residing with her husband Diwaru at village Garra Bagheda. Accused nos. 1 and 3 are real brothers and sons of accused no.2 Baburao Lade and accused no.6 Sau. Babibai Lade, the wife of accused Baburao and accused no.7 to 10 are their relatives residing in nearby village called Sitasawangi. There was some dispute between complainant 3 Sindhubai on one side and accused nos. 1, 2 and 4 and 5 on other side. As per the report at about 8.30 P. M. all the accused came to the house of Diwaru and after dragging Diwaru and Shamrao, they were assaulted with axes, sticks etc., resulting in their instantaneous death. Sindhubai managed to escape and hid in the house of one Sitabai Neware. The trial Court has held all the accused guilty for murder of Diwaru and Shamrao and further held that the prosecution had proved common object and consequently convicted all the accused for the offences for which they were charged. Mr. Mardikar, learned counsel, who has been appointed for accused no.1 in Criminal Application No. 3966/2007 submitted that the evidence on record is not sufficient to convict accused no.1 since the evidence of Sindhubai is full of contradictions and omissions. He, however, submitted that the prosecution has not been examined any independent witness and the conviction has been recorded on sole testimony of Sindhubai without any corroboration from any independent witness. Therefore, he submitted that the substantive sentences imposed on the applicant no.1 be suspended pending hearing and final disposal of the appeal. 4 Mr. Khan, learned counsel appearing for accused nos. 2 and 6 in Criminal Application No. 101/2008 submitted that the evidence on record is not sufficient to convict the applicants inasmuch the evidence of Sindhubai is full of omissions and contradictions insofar as roles allegedly played by different accused. He also submitted that important witness like Sitabai Neware has not been examined by the prosecution. Therefore, the prosecution evidence is full of suspicious and, therefore, he submitted that the substantive sentences imposed on the applicant nos.2 and 6 be suspended pending hearing and final disposal of the appeal Mr. Muley, learned counsel for the applicant nos. 7 to 10 in Criminal Application 57/08 submitted that the applicants have not been named in the F.I.R. Moreover, Sindhubai does not refer to identification parade being held to identify the accused nos. 7 to 10. He further submitted that there is no recovery of weapon from any of the accused. According to Mr. Muley, common object has not been established insofar as accused nos.7 to 10 are concerned. Therefore, the conviction recorded by the trial Court is unsustainable in law. He, therefore, submitted that the substantive sentences imposed on the applicant nos.7 to 10 be suspended pending hearing and final disposal of the appeal Per contra, Mr. Jaiswal learned A.P.P. submitted 5 that the F.I.R. by PW 1 Sindhubai has been lodged within few hours of the incident and, therefore, the evidence of Sindhubai inspires confidence. According to Mr. Jaiswal, the dead body of Diwaru and Shamrao found on the spot which lends corroboration to the testimony of Sindhubai. He further submitted that medical evidence tendered through PW 6 Dr. Sadhu Ramteke also corroborates the oral testimony of Sindhubai. He further urged that all the applicants are guilty of double murder and, therefore, this is not a fit case in which substantive sentences imposed on the applicants deserve to be suspended and grant of bail to any of the applicants. Having heard learned counsel for the applicants and learned A.P.P. for the respondent, we are of the considered opinion that this is not a fit case in which substantive sentences imposed on the applicants deserve to be suspended and the applicants released on bail. In our opinion, the evidence of PW 1 Sindhubai inspires confidence inasmuch as F. I.R. in the present case has been filed within few hours of the incident in which the names of the accused nos. 1 to 6 appear. Insofar as accused nos. 7 to 10 are concerned, although they are not specifically named in F.I.R., the fact remains that in the First Information Report Sindhubai has mentioned that accused nos.1 to 6 along with nephew of Baburao Lade came to her house and assaulted her husband and her brother-in-law and 6 moreover, accused nos. 7 to 10 have also identified in the Court. Therefore, even if Sindhubai has not mentioned about identification of accused nos. 7 to 10, the same, by itself, cannot be taken as a factor against the prosecution. Insofar as non-examination of any independent witness is concerned, in our opinion, the same is not fatal to the prosecution case inasmuch as the testimony of Sindhubai stands corroborated by the medical evidence tendered through Dr. Sadhu Ramteke, who had conducted post-mortem examination on dead bodies of Diwaru and Shamrao. He found six injuries - five incise wounds and one fracture on Diwaru and fourteen injuries – eight incise wounds, three fractures and three contusions on the dead body of Shamrao. The injuries found on the dead bodies of Diwaru and Shamrao were on vital parts, which resulted in their instantaneous death. Moreover, the evidence of Police Patil PW 4 Narendra Katre also supports the prosecution case though he has turned hostile. In our opinion, the trial Court has rightly held all the accused guilty of murder with the aid of Section 149 of the Indian Penal Code since the evidence on record clearly establishes common object on the part of all the accused to commit murders of Diwaru and Shamrao. Having regard to the manner in which the offences were committed and the weapons used, we have no 7 hesitation to hold that the trial Court has rightly convicted all the accused with the aid of Section 149 of the Indian Penal Code. In our opinion, having regard to gruesome nature of the crime committed by the accused, they are not entitled for suspension of sentences and bail pending hearing and final disposal of their appeals. For the reasons aforesaid, we find no merit in all the three applications. Hence all the three applications are dismissed. Needless to mention that the observations made herein are prima facie in nature and have been made for the purpose of disposal of these applications. JUDGE JUDGE MLA