1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1257 OF 2003 Nitin Laxman Pansare Age 20 yrs, Occ: Agriculture, R/at.Indori, Taluka Maval, District Pune. .. Appellant V/s The State of Maharashtra .. Respondent WITH CRIMINAL APPEAL NO.1433 OF 2003 Raju Suresh Chavan, Age 26 yrs, Occ: Agriculture, R/at.Indori, Taluka Maval, District Pune. .. Appellant V/s The State of Maharashtra .. Respondent Mr.Rajendra Shirodkar for the Appellants. Mr.V.B.Konde-Deshmukh, APP for the State. CORAM : SMT. RANJANA DESAI & R.G.KETKAR, JJ. DATE : 7th September, 2009. JUDGMENT: (Per R.G.Ketkar, J.) 1. Criminal Appeal No.1257 of 2003 is preferred by the original Accused No. 2 Nitin Laxman Pansare and Criminal Appeal No.1433 of 2003 is preferred by original Accused No.1 Raju Suresh Chavan. These two appeals are directed against the judgment and order dated October 3, 2003 passed by 2 the learned II Ad-hoc District Judge, Pune in Sessions Case No.113 of 2002. 2. The Appellants were prosecuted for the offences punishable u/s. 302, 307 and 324 read with section 34 Indian Penal Code (for short IPC). The appellants were convicted of the offences punishable u/s.302, 307 and 324 IPC and were sentenced to suffer imprisonment for life only u/s.302 read with section 34 IPC. Each of them was ordered to pay fine of Rs.1000/-. Learned Sessions Judge did not separately award sentence to the appellants for the offences punishable u/s.307 and 324 read with section 34 IPC as they were sentenced to suffer imprisonment for life u/s.302 IPC. Learned Sessions Judge also gave benefit of set off equivalent to the period of their detention in jail to the appellants. 3. It is the case of the prosecution that at about 10.15 p.m.in the night of November 15, 2001 the complainant PW-2 Prashant Bhagwat alongwith his uncle Suresh Bhagwat were proceeding towards his house on motorcycle. When they reached near streamlet, Accused No.1 Raju Suresh Chavan called them and asked them to stop their motorcycle. PW-2 Prashant and his uncle Suresh were frightened and they fell down from the motorcycle. Immediately thereafter Accused No.1 Raju Chavan and Accused No.2 Nitin Laxman Pansare rushed at them. Both were armed with swords. Both the accused gave sword blows on the head, face, hands and back of Suresh Bhagwat. PW-2 Prashant intervened and requested the accused not to beat his uncle, whereupon Accused No.1 Raju Suresh Chavan gave sword blow on right hand of PW-2 Prashant. In the incident his uncle Suresh sustained grievous inujuries and fell down on the spot. After assaulting PW-2 3 Prashant Bhagwat and Suresh Bhagwat both the accused left the spot. Both the injured were taken to Talegaon General Hospital and were admitted. 4. After getting information about the hospitalisation of PW-2 Prashant and Suresh, officers attached to Talegaon Police Station rushed to Talegaon General Hospital and recorded the statement of PW-2 Prashant, which was treated as First Information Report (for short FIR). On the basis of this, Talegaon Police Station registered Criminal Case No.120 of 2001 against the accused at about 00.35 hours on November 16, 2001. The investigation was handed over to PW-11 Assistant Police Inspector Mr.Mohan Jadhav. He went to Talegaon General Hospital. He found that injured Suresh was not in a position to speak. He accordingly verified the correctness of the complaint given by injured PW-2 Prashant. On next day i.e.on November 17, 2001, the Investigating Officer visited the spot of incident and prepared the panchanama of scene of offence. During this time, the Investigating Officer collected the blood mixed earth and plain earth from the spot of incident. The motorcycle lying on the spot was also seized. The clothes of the injured persons viz. PW-2 Prashant and Suresh were seized under Panchnama at Exhibit 32 in the presence of panchas. The necessary photographs of the scene of offence through private photographer were also taken. The investigating officer recorded the statements of as many as 10 witnesses on that date itself. As the condition of injured Suresh became critical he was shifted to Lokmanya Hospital at Pimpri. Though the Investigating Officer repeatedly visited the Lokmanya Hospital where the injured Suresh was shifted, he found that the injured Suresh was not in a 4 position to speak. To that effect he obtained the requisite certificates from the medical officer about the physical condition of injured Suresh. In the meantime, search of the accused was going on and on November 21, 2001, both the accused were arrested. On their arrest blood stained clothes on their persons were seized under panchanama dated November 21, 2001 at Exhibit 30. 5. At the instance of Accused No.1 Raju Chavan, the investigating officer recovered motorcycle from “Tikona Killa” on December 21, 2001. The recovery panchanama to that effect was made on November 22, 2001 at Exhibit 32. At the instance of Accused No.1 Raju Chavan, the Investigating Officer recovered two swords on November 24, 2001 and the seizure memo of swords dated November 24, 2001 was made, which is at Exhibit 34. On December 26, 2001, injured Suresh was shifted to Rubi Hospital. During this period also the injured Suresh was unable to speak. On January 2, 2002 clothes of the injured, clothes of the accused, seized weapons, and earth collected from the spot of incident were forwarded to the Chemical Analyser for examination and report. Injured Suresh eventually succumbed to injuries on January 2, 2002. Thereafter section 302 IPC was added. The investigation was given to PSI Shri.Dhumal as API Shri.Jadhav was transferred. On completion of investigation, the chargesheet against the accused was forwarded to the court of learned J.M.F.C.Vadvaon Maval. The learned J.M.F.C.Vadgaon Maval committed the case to the Court of Sessions, Pune for trial. 6. The charge against the accused was framed at Exhibit 5 and particulars of 5 charge were read over and explained to the accused. Both the accused pleaded not guilty to the charge and their defence was of total denial. According to them they were falsely implicated in the case. In his statement u/s.313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C), accused No.1 Raju Chavan submitted that there were quarrels between the brother of the deceased Suresh and one Balu Chavan and therefore, merely on suspicion they were implicated in the matter. 7. In support of the prosecution case, in all 12 witnesses were examined to prove and establish the allegations and charges levelled against the accused. In the present case, there is direct evidence i.e.evidence of the complainant, eye-witness PW-2 Prashant Bhagwat, who also received injuries during the incident On the point of motive, the prosecution has relied upon the evidence of PW-3 Shantaram Bhagwat (who is the brother of the deceased Suresh and the uncle of PW-2 Prashant), and PW-10 Deepak Shinde. As per the prosecution case, PW-3 Shantaram Bhagwat and deceased Suresh were looking after the business of Hotel “Prashant Beer Bar”. On November 9, 2001 Accused No.1 Raju Suresh Chavan and one Raju Datta Chavan came to their Hotel. Since the PW-3 Shantaram Bhagwat and deceased Suresh Bhagwat refused to serve drinks to them there were quarrels between them and on account of this incident deceased Suresh had given a complaint against Accused No.1 Raju Suresh Chavan and one Raju Datta Chavan at Talegaon Police Station which is entered in the relevant extract of NC Register being NC No.675 of 2001 dated November 9, 2001. This fact was placed on record by the prosecution alongwith pursis at Exhibit 68, on which the learned defence counsel in the 6 Sessions Court made an endorsement to the effect that “may be exhibited and read in evidence without formal proof”. 8. The prosecution has also led medical evidence i.e.evidence of (i)PW-5 Dr.Rahul Mandhare, Medical Officer attached to Lokmanya Hospital, Nigdi, (ii)PW-6 Dr.Prashant D.Suryavanshi, Medical officer in Forensic Department attached to Sassoon Hospital, who conducted post mortem of deceased Suresh, (iii)PW9-Dr.Ganpat Gandhi, resident doctor attached to Talegaon General Hospital, who attended PW-2 Prashant and deceased Suresh when they were brought at Talegaon General Hospital at about 10.30p.m.on November 15, 2001. The prosecution has also examined PW-4 Shri.Sanjay Vavhal as panch witness and PW-7 Shri.Sandip D.Kashid and PW-8 Shri.Rajesh C.Jagnade, whose help PW-2 Prashant sought immediately after the incident. The prosecution also led evidence of PW-11 Shri.Mohan Tulshiram Jadhav, Assistant Police Inspector attached to Talegaon Dabhade Police Station and PW-12 Shahaji R.Athavale, Police Head Constable attached to Talegaon Dabhade Police Station, who recorded complaint of PW-2 Prashant Bhagwat, which was treated as FIR at Exhibit 22. 9. PW-2 Prashant deposed at Exhibit 21 to the effect that at about 10.00 p.m., in the night of November 15, 2001 he went on motorcycle to the permit room to bring back his uncle Suresh Bhagwat at home. At that time deceased Suresh and PW-3 Shantaram Bhagwat were about to close the hotel. He took uncle Suresh Bhagwat on motorcycle and was returning home. While they were crossing streamlet adjoining the Baudha locality of 7 Indori, Accused No.1 Raju Suresh Chavan gave call and asked to stop the motorcycle. When they saw both the accused were coming towards them, they got frightened and fell down from the motorcycle. Both the accused were armed with swords. On reaching near them, accused started giving sword blows on the person of Suresh. PW-2 Prashant intervened and requested both the accused not to assault his uncle. Accused No.1 Raju Chavan tried to give blow of sword on PW-2 Prashant’s head, but he obstructed the said blow with his right hand and eventually sustained injury on the right hand. Due to blows on head of Suresh, he sustained grievous injuries and fell down on the spot. After assaulting PW-2 Prashant and his uncle Suresh, both the accused left the spot. PW-2 Prashant tried to seek help from the people residing in Baudha locality, but nobody came forward. He went to the house of PW-7 Sandip Kashid and informed him that his uncle sustained injuries. Thereafter PW-7 Sandeep Kashid contacted PW-8 Rakesh C.Jagnade to arrange for his Sumo for taking Suresh to the hospital. At that time, his brother Pankaj and cousin Datta Kardile were also with him. PW-7 Sandip Kashid, PW-8 Rakesh Jagnade, his brother Pankaj and cousin Datta Kardile took PW-2 Prashant and his uncle Suresh to the Talegaon General Hospital. Immediately after sometime, PW-12 Shahaji Ramchandra Athavale, Police Head Constable of Talegaon Dabhade Police Station alongwith other police constable came there and recorded the statement of PW-2 Prashant in the presence of PW-9 Dr.Ganpat Gandhi. 10.PW-12 Athavale enquired with PW-9 Dr.Ganpat Gandhi as to which patient is able to give statement, whereupon PW-9 Dr.Gandhi informed that PW-2 8 Prashant was conscious and oriented and was in a position to give statement. PW-12 Athavale recorded statement of PW-2 Prashant in the presence of Dr.Gandhi. After recording statement of PW-2 Prashant his signature was obtained by PW-12 Athavale. PW-12 Athavale also put his signature. PW-9 Dr.Gandhi made endorsement below the statement of PW-2 Prashant about his physical and mental condition at the time of recording of statement. Below the said endorsement, PW-9 put his signature. PW-9 Dr.Gandhi certified that PW-2 Prashant was alert and conscious while giving the said statement. 11.PW-2 Prashant further deposed that his uncle Suresh was admitted to Lokmanya Hospital, Nigdi on December 26, 2001. From Lokmanya Hospital Suresh was shifted to Rubi Hospital as at Lokmanya Hospital his condition became critical. Ultimately Suresh succummed to injuries on January 2, 2002. PW-2 Prashant identified Article No.8 as trouser and Article No.9 as shirt of Accused No.2 Nitin Pansare. He also identified Article 10 & 11 being the shirt and trouser respectively of Accused No.1 Raju Chavan, Article Nos.12 & 13 being swords used by the accused persons. It has also come in the evidence of PW-2 Prashant that near the spot of incident there was street light, as also that the lights of his motorcycle and motorcycle of the accused were on. 12.In the cross-examination of PW-2 Prashant he admitted that while recording his complaint police enquired with him as to how he saw the assailants. He admitted that at the time of giving complaint he had not informed the police that there was tubelight pole at the spot of incident or 9 that lights of his motorcycle or the motorcycle of the accused were on. He denied that after the incident the persons gathered at the spot took them to the hospital. He also admitted that he did not inform the police that after the accused left the spot, he tried to seek help from Baudha locality and nobody came forward. He also admitted that he did not inform police of going to the house of PW-7 Sandip Kashid, who in turn contacted PW-8 Rakesh Jagnade and his brother who took them to the Talegaon General Hospital in a jeep of PW-8 Rakesh Jagnade. He reiterated that after hearing the call given by accused Raju Chavan he saw accused approaching towards them and they got frightened. On account of this, they fell down from the motorcycle. PW-2 Prashant further admitted that while giving complaint he did not inform the police that accused Raju Chavan tried to give blow with sword on his head and he obstructed the said blow with his right hand. He denied the suggestion that before going to hospital they had gone to the police station. He also denied the suggestion that they first approached the police and informed them about the incident, whereupon the police sent them to the hospital with a requisition letter. PW-2 Prashant asserted that he approached PW-7 Sandip Kashid who enquired with him about the incident as also the assailants. PW-8 Rakesh Jagnade, his brother Pankaj also enquired with him about the incident. On their enquiry, PW-2 Prashant told them that Suresh was lying near the streamlet in an injured condition. PW-7 Sandip Kashid, one Datta Kardile and PW-8 Rakesh Jagnade took them to the hospital. He denied the suggestion that he was deposing falsely to the effect that he has seen the incident in the light of tubelight and motorcycle lights. Lastly he admitted that at the time of giving complaint, he did not inform police that the land 10 of accused Raju Chavan is adjacent to their land and both the accused regularly used to visit their permit room. 13.PW-3 Shantaram Bhagwat was examined at Exh.23. He narrated the previous incident that took place on November 9, 2001 when he and Suresh refused to serve drinks to accused Raju Suresh Chavan and one Raju Datta Chavan. On account of refusal to serve the drinks, quarrel took place. Due to this incident, Suresh had given complaint against Raju Suresh Chavan and Raju Datta Chavan at Talegaon Police Station. In so far as incident of November 15, 2001 is concerned, he deposed that he reached the spot of incident after about half an hour. He saw several persons there, who informed about the assault on Suresh and PW-2 Prashant by accused persons with swords and also about shifting of Suresh and PW-2 Prashant to Talegaon General Hospital. Immediately thereafter he went to the hospital. He found very many injuries on the person of Suresh and he was lying unconscious. He also noticed injuries on the hand of PW-2 Prashant. He enquired with PW-2 Prashant about the incident, who informed the assault made by the accused persons on them near Baudha locality with swords. He also came to know about the recording of statement of PW-2 Prashant by police. As per the medical advice on the very day, they shifted Suresh to Lokmanya Hospital at Nigdi. Throughout the hospitalisatiion, the condition of Suresh was critical. He was not able to speak. In the cross-examination, he stated that when he reached the hospital, police were present outside the hospital and were making enquiry about the incident. His statement was recorded at about 7.00 a.m.on November 16, 2001. His statement was recorded by police at the spot of 11 incident. During that time he admitted that he did not disclose about the existence of street light pole near the spot of incident. He also did not disclose to anyone about the information he gathered from the persons in the mob or the information furnished by PW-2 Prashant till his statement was recorded by the police. In the hospital, he enquired with PW-2 Prashant about the weapons of assault and he was disclosed the weapons used in the commission of offence. He also asserted that throughout the hospitalisation of Suresh he was with him. He denied the suggestion that while treatment on Suresh was going on at Lokmanya Hospital he gained consciousness and recovered within two days and his statement was also recorded by police. He categorically stated that from his admission at Talegaon General Hospital on November 15, 2001 till his death at Rubi Hospital, Pune on January 2, 2002 Suresh never regained consciousness. He denied the suggestion that PW-2 Prashant had lodged complaint about the incident with Talegaon Dabhade Police Station. He was confronted with his statement recorded by the police whereupon he admitted that the portion marked “A” from his statement was not stated by him before the police. In the statement recorded by the police he did not disclose that the statement of PW-2 Prashant was recorded in the hospital. He denied suggestion that PW-2 Prashant never disclosed to him about the assault on him and deceased Suresh by the accused persons. 14.The prosecution also examined PW-4 Sanjay Radhakrishna Vavhal at Exhibit 28, who acted as panch witness to (i) spot panchanama dated November 16, 2001 at Exh.29, (ii) seizure of clothes of the injured Prashant and deceased Suresh also arrest panchanama dated November 21, 12 2001 at Exh.30, (iii) Recovery panchanama dated November 22, 2001 at Exh.31 of seizure of motorcycle (iv) Recovery panchanama dated November 22, 2001 at Exh.32 of seizure of motorcycle bearing Registration No.MH-14-A-304, (v) Recovery of weapons at the instance of accused and panchnama to that effect at Exh.34 dated November 24, 2001. In the cross- examination, he denied suggestion that he is deposing false about the giving of statement of accused Raju Chavan on November 22 and November 24, 2001. 15.The prosecution also examined PW-5 Dr.Rahul Mandhare at Exh.36. At the relevant time he was working as Medical Officer in Lokmanya Hospital, Nigdi. He deposed that the Suresh was referred to their hospital from Bhausaheb Sardesai Hospital at Talegaon. On admission of Suresh, he examined him and he noticed three major injuries on his person. According to him the injuries were at occipital region, left temporal region, on left eye and that the Suresh was heavily bleeding from the injury at occipatal region. Patient Suresh was unconscious and his blood pressure was practically shut down. The relatives of Suresh gave history of assault by unknown persons may be by swords. During that period, Suresh had undergone three operations. PW-5 categorically stated that throughout the period of his admission, Suresh was unable to speak; initially he was unconscious and subsequently he was sub-conscious. He has referred to (i) Certificate dated November 16, 2001 at Exh.37, (ii) Certificate dated November 18, 2001 at Exh.38 and (iii) Certificate dated November 19, 2001 at Exh.39 issued by Dr.Joshi. He has duly proved these certificates. He was also shown certificate dated November 27, 2001 at Exh.40 issued 13 by Dr.Modak and the certificate dated November 27, 2001 at Exh.41 issued by Dr.Bhosale. He has duly proved those certificates. He has produced xerox copies of the case papers of Suresh which were exhibited as Exh.42. PW-5 stated that both the head injuries on the person of Suresh were of serious nature and were sufficient to cause death, if early treatment was not provided. He issued injury certificate of Suresh which was marked as Exh.43. He was shown Articles 13 and 14 viz. Swords and he stated that the injuries on the person of the Suresh were possible due to swords. In the cross examination, he admitted that the discharge of Suresh was taken against the medical advice and that at the time of giving history, it was stated that the weapons used were not known. He further deposed to the effect that well oriented means the patient is responding to the commands. He examined Suresh on November 16, 2001 after every 30 to 60 minutes, and at the time when he examined Suresh at 3.15 a.m.he found Suresh conscious and well oriented. He was giving response to the verbal commands. He admitted that in case papers nowhere it was stated that after 3.15 a.m.on November 16, 2001 till his discharge on December 26, 2001 Suresh was not in a position to talk. In the case papers it was mentioned that the patient was conscious, oriented and responding to the verbal commands. He further stated that after admission of Suresh on November 16, 2001 he informed Talegaon Police Station and from the date of his admission on November 16, 2001 till the date of his discharge on November 26, 2001, police attached to the Talegaon Police Station approached the hospital from time to time. 16.The prosecution also examined PW-6 Dr.Prashant Damodar Suryavanshi at 14 Exh.44. He performed post mortem on the dead body of Suresh. He noticed in all 11 anti mortem injuries on the person of the Suresh and noted all these injuries in column No.17 of Post Mortem Report by affixing a separate paper. During post mortem he also noticed corresponding internal injuries and noted them in column No.19 of the Post Mortem Report. External injuries at Sr.Nos.1 to 4 and the corresponding internal injuries at Sr.Nos.3 to 6 were vital and sufficient to cause death in ordinary course of nature. The post mortem report is at Exh.45 wherein the probable cause of death is mentioned as complications following head injury. The post mortem report is duly proved by PW-6 Dr.Survavanshi. 17.The prosecution also examined PW-7 Sandip Kashid at Exh.47. In the examination in chief he admitted the occurrence of incident that took place at about 10.30 to 11 p.m.on November 15, 2001. He was at his home. PW-2 Prashant came to his house and told him that he wanted to take his uncle Suresh to the hospital. He noticed that PW-2 was in a frightened condition and there was blood on his one hand. He gave call to PW-8 Rakesh Jagnade and asked him to bring his sumo jeep. He told PW-8 Rakesh Jagnade that uncle of PW-2 Prashant was required to be taken to hospital. When he went to the residence of PW-8 Rakesh Jagnade his brother Pankaj and one Datta Kardile were present. Thereafter PW-7 Sandip Kashid, Pankaj, Datta Kardile, PW-2 Prashant alongwith PW-8 Rakesh Jagnade went to the spot where Suresh was lying. They found that Suresh was lying unconscious at the spot with injuries on his person. They took Suresh to Talegaon General Hospital. PW-7 however proceeded to state that he did not enquire with PW-2 Prashant anything about the 15 incident. While proceeding to Talegaon General Hospital, PW-2 Prashant told them that someone assaulted his uncle. He however, admitted that on the next date of incident the police made enquiry with him and recorded his statement. He asserted that on his query with PW-2 Prashant he did not disclose that accused Raju Chavan and Nitin Pansare assaulted him and his uncle Suresh by using swords while they were proceeding from the Baudh locality on motorcycle. The prosecution sought permission to cross- examine and on being permitted, learned APP cross-examined PW-7 Sandip Kashid. In the cross-examination PW-7 Sandip Kashid admitted that both the accused are his relatives and also the natives of village Indori. He admitted that when PW-2 Prashant came to his house, he enquired with him as to what happened. He however denied that at that time PW-2 Prashant told him that accused assaulted him and his uncle Suresh with swords while they were passing the Baudha locality. He was confronted with the statement recorded by