1 cri-appeal-646-650-651-691-02 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 646 OF 2002 Nitin Anant Upade ) Aged 22 years, Occ. Business, ) residing at Mane-Nikam Gawl, ) Room No.9, T.J. Road, Sewree, ) Mumbai-400 015 )...APPELLANT Versus State of Maharashtra (At the instance) of Vaibhavwadi Police Station) )..RESPONDENT WITH CRIMINAL APPEAL NO.650 OF 2002 Anant Shantaram Upade ) Aged 49 years, Occ. Business, ) residing at Mane-Nikam Gawl, ) Room No.9, T.J. Road, Sewree, ) 2 cri-appeal-646-650-651-691-02 Mumbai-400 015 ) at present detained at Kolhapur ) Central Prison, at Kalamba). )....APPELLANT Versus 1.State of Maharashtra (At the ) instance of Vaibhavwadi Police ) Station) ) 2.Anant Shankar Upade ) 3.Shankar Pandurang Upade ) residing at Upale, Upadewadi, ) Taluka Vaibhavwadi, Dist. ) Sindhudurga )..RESPONDENTS WITH CRIMINAL APPEAL NO.651 OF 2002 Amrit Shantaram Upade ) Aged 37 years, Occ. Nil, ) residing at Mane-Nikam Chawl, ) 3 cri-appeal-646-650-651-691-02 Room No.9, T.J. Road, Sewree, ) Mumbai-400 015 ) at present detained at Kolhapur ) Central Prison, at Kalamba). )...APPELLANT Versus 1.State of Maharashtra (At the ) instance of Vaibhavwadi Station) ) 2.Anant Shankar Upade ) 3.Shankar Pandurang Upade ) residing at Upale, Upadewadi, ) Taluka Vaibhavwadi, Dist. ) Sindhudurga )..RESPONDENTS WITH CRIMINAL APPEAL NO.691 OF 2002 1.State of Maharashtra )..APPELLANT Versus 1. Anant Shantaram Upade ) 4 cri-appeal-646-650-651-691-02 Aged 49 years, ) 2.Sou.Ratnaprabha Anant Upade, ) Age about 40 years, ) 3.Baliram Sakharam Upade, ) Age about 35 years, ) 4.Jaisingh Umaji Upade, ) Age about 33 years, ) 5.Amrit Shantaram Upade, ) Aged about 37 years, ) 6.Nitin Anant Upade, ) Aged about 19 years, ) 7.Akaram Raoji Upade, ) Aged about 45 years, ) 8.Chandrakant Babaji Upade, ) Age about 26 years, ) 9.Santosh Dhondiram Upade, ) Aged about 24 years, ) 10.Sou.Suvarna Amrit Upade, ) Age about 35 years, ) 11.Dipak Dhondiram Upade ) 5 cri-appeal-646-650-651-691-02 Age about 25 years, ) All residing at Upale, Upadewadi, ) Taluka Vaibhavwadi, Dist. ) Sindhudurga )..RESPONDENTS Mr. Girish Kulkarni i/b. Mr. M.K. Kocharekar, for the Appellants in Appeal No.646, 650 and 651 of 2002. Mrs. M.M. Deshmukh, APP for State in Appeal Nos.646, 650 and 651 of 2002 and for appellant in Appeal No.691 of 2002 CORAM : B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. RESERVED ON: 8TH JULY, 2010 PONOUNCED ON: 9TH SEPTEMBER, 2010 JUDGMENT (PER SHRI B.H. MARLAPALLE, J.): 1. All these appeals arise from the order of conviction and sentence as well as acquittal passed by the learned Additional Sessions Judge, Sindhudurg-Oros on 30th April, 2002 in Sessions Case No.44 of 1999 for the offences punishable under Section 147, 148, 149, 452, 324, 323, 504, 506, 307 and 302 of I.P.C. and Section 3 read with Section 25 of the Arms Act. In the said case in all 11 accused were put on trial and 6 cri-appeal-646-650-651-691-02 accused No.1 has been convicted for the offences punishable under Section 307, 323, 324 of I.P.C. and Section 3 read with Section 25 of the Arms Act. He has been sentenced to suffer R.I. for life for the offence under Section 307 of I.P.C. Hence he has filed Criminal Appeal No.650 of 2002. Accused No.5 has been convicted for the offences punishable under Section 302 and 307 of I.P.C. and has been sentenced to suffer R.I. for life. Hence he has filed Criminal Appeal No.659 of 2002. Accused Nos.1,4,5 and 6 have been convicted for the offences punishable under Section 452 of I.P.C., and sentenced to suffer R.I. for six months each and hence accused No.6 has filed Appeal No.646 of 2002 whereas the accused No.4 did not prefer an appeal and has undergone the sentence of six months. Criminal Appeal No.691 of 2002 has been filed by the State Government against all the accused. Except the Appellant (Accused No.5) in Appeal No.651 of 2002 all the other appellants in the Appeals have been released on bail pending the appeals. 2. As per the prosecution case there was a rivalry in two political groups in village Upale. One group was headed by accused No.1-Anant Shantaram Upade whereas the other group was headed by Bhaskar 7 cri-appeal-646-650-651-691-02 Upade. Accused No.5 is the younger brother of accused No.1 and accused No.1 normally resided at Mumbai and had visited Upale about 10 days prior to the date of incident. Six months before the incident the elections to the village Panchayat were held and accused No.5 and Bhaskar Shantaram Upade had contested for the post of Sarpanch and on that count there was a rivalry between the two groups. It appears that Bhaskar Upade was assaulted by the group of accused No.1 and the party of the accused No.1 was prosecuted. P.W.14-Shankar Pandurang Upade is the cousin of Bhaskar Upade and he resided with his wife and children. On 20th May, 1998 there was a programme of “Pachpartavana” in the house of Dnyaneshwar Upade on account of his daughter’s marriage and while P.W.14 Shankar and his family members had attended the said programme and while he was in his house at about 10.15 p.m., the accused Nos. 1,2,4,5 and 6, entered his house. Accused No.5 caught hold of the sister of P.W.14, Accused No.1 was armed with chopper in his right hand and a revolver in his left hand. He gave threats to kill P.W.14 and asked about his son Santosh. Accused No.1 used the handle of chopper and inflicted injuries on the person of P.W.14 and, therefore, he raised hue and cry. His nephew Jaidas Upade, P.W.18, reached the spot and while he was trying to enquire, accused 8 cri-appeal-646-650-651-691-02 No.1 stabbed P.W.18 with chopper on his back. He escaped and ran away to the house of Dnyaneshwar Upade and gave message to Santosh. While Santosh was rushing towards the house, accused No.5 shot him and he was lying at about 25 ft. away from the house. Anant Gangaram Upade, Bhikaji Dhondu Upade (PW 20), Nitin Manohar Upade (PW 21), Jaishri Anant Upade and Sambbha Kokate had also received bullet injuries. They were rushed to Umbarde hospital. It is further alleged that accused No.1, accused No.2 and 5 had opened fire. Santosh and Jaishri were also taken to the hospital at Umbarde. Santosh was declared dead. P.W.22 Dr. Marchant examined and found Santosh, Jaishri and Nitin in serious conditions and hence they were immediately shifted to the Rural Hospital at Kankavali. Other injured witnesses were treated at Umbarde hospital and were discharged, whereas Nitin and Jaishri were shifted to Kankavali and then referred to the Government Hospital, Goa for further treatment, but while under treatment Jaishri died on 22/5/1998 at 12.15 hrs. P.W.14 registered his complaint (F.I.R. at Exhibit 118) with the Vaibhavwadi Police Station on the next day i.e. on 21st May, 1998 at about 12.30 p.m. for the offence punishable under Sections 307, 452, 324, 323, 143, 147, 148, 149, 504 and 506 of IPC and Sections 3 and 25 of the Arms Act. P.W. 9 cri-appeal-646-650-651-691-02 16-Ramesh Janardan Upade after seeing the firing rushed to the house of P.W.17-Anant Sitaram Mandavkar, who was the Up-Sarpanch of village Upale and both of them went to Vaibhavwadi Police Station and met P.W.19-Madhukar Rajaram Desai, Police Sub Inspector. P.W.29- Madhukar Rajaram Desai rushed to the spot and shifted the injured to the Umbarde Primary Health Centre where P.W.22 Dr.Najakat Mehabub Marchant, Medical Officer found that the conditions of Santosh, Jaishri and Nitin, P.W.21 were serious. P.W.29 recorded the statement of P.W. 24 at Umbarde past midnight on the basis of which the F.I.R., came to be registered. The investigation was then handed over to Circle Police Inspector-Madhukar Yashvant Kadam P.W.32 by the District Superintendent of Police late in the night on 21st May, 1998. P.W.28-Dr.Shashikant Shamrao Bhise conducted Postmortem on the body of Santosh and P.W.23 Dr. Edemundo Josef Rodrigues conducted the postmortem on the body of Jaishri. P.W.32-Madhukar Yashvant Kadam, during the course of investigation arrested the accused persons and at their instance purportedly recovered the weapons. On completion of investigation he filed a charge sheet in the Court of the learned Judicial Magistrate, Kankavali, who committed the case to the Court of Sessions. 10 cri-appeal-646-650-651-691-02 3. The prosecution examined in all 32 witnesses and the accused examined one witness Shankar Ramchandra Narkar, D.W.1. The accused in their statement recorded under Section 313 of the Cr.P.C. stated that on account of group rivalry they were roped in a false case by the party Ramesh Upade. Accused No.1 took an additional plea that he was not present in the village when the incident had taken place and in support of his plea of alibi D.W.1 came to be examined. 4. On the assessment of the evidence both oral and documentary the learned trial Judge held that Santosh Upade and Jayashri Upade died of homicidal death on account of bullet injuries they had received. On the night of 20th May, 1998 at Upale accusedNo.1, 4, 5 and 6 had committed tress-pass by entering in the house of Shankar Pandurang Upade, P.W.14 after having made preparation for causing hurt to him and the accused No.1 had caused hurt to him by Kukari. It was further held that accused No.1 voluntarily caused hurt to Jaidas with Kukari. The trial Court held that the prosecution has proved that the accused No.5 has committed the murder of Santosh and Jaishri and accused Nos. 1 to 5 in furtherance of their common intention had caused bodily 11 cri-appeal-646-650-651-691-02 injuries to Nitin Manohar Upade, P.W.21 and Bhikaji Dhondu Upade, PW.20 And and causing hurt with such an intention and under such a circumstance that if by that act the accused No.1 would have caused the death of Jaidas and held them guilty of the offences punishabl under Section 307 read with Section 34 of the I.P.C. Accused No.1 was individually held guilty in the course of course of same transaction of unlawfully possessing fire arms. 5. The prosecution case is based on the evidence of the eye witnesses Shankar Pandurang Upade, .W.14, Jaidas Sitaram Upade, P.W.18, Bhikaji Dhondu Upade, P.W.20, Nitin Manohar Upade as well as Ramesh Janardan Upade, P.W.16, Anant Sitaram Mandavkar, PW.17 and Manohar Sakharam Upade, P.W.19. P.W.1 to 16 were panch witnesses and P.W.1 Ankush Dhakatu Sakpal, P.W.2 Ashok Balkrishna Sakpal, P.W.3 Prakash Keshav Raorane, P.W.4 Satyashodhak Rajaram Raorane, P.W. 6 Prakash Shankar Sangavekar, P.W.9 Prakash Yashwant Bawadekar, P.W.10 Dipak Vithoba Sutar had turned hostile and did not support the prosecution case. Whereas P.W.5 Vinod Krishnappa Gandhi, P.W.7 Ravindra Dhaku Paste, P.W.8 Babu Pandurang Kharat, P.W.17Anant Sitaram Mandavkar, P.W.12 Tanaji Tukaram Hadasi and 12 cri-appeal-646-650-651-691-02 PW.13 Baliram Sitaram Upade supported the seizurer recovery of cloths/arms and memorandum of panchanama, etc. P.W.17 Anant Sitaram Mandavkar and PW.19 Manohar Sakharam Upade are claimed to be eye witnesses as well as panch witnesses. P.W.22 Dr. Najakat Mehabub Marchant, P.W.23 Dr. Edemundo Josef Rodrigues, P.W. 15 Hambirrao Shankarrao Jadhav, P.W. 27 Dr. Jude C.R. Rodrigues and P.W. 28 Dr. Shashikant Shamrao Bhise were medical officers, whereaqs P.W. 24 Prakash Anantrao Mishal was the arms dealer and P.W. 25 Tanaji Balu More and P.W.26 Anant Gopal Supal, PL.W. 29 Madhukar Rajaram Desai,, P.W.30 Rajendra Murari Rane, P.W.31 Vitthal Anna Jadhavand P.W. 32 Madhukar Yashvant Kadam were the police personnel. In so far as the first issue of homicidal death of Santosh and Jaishri is concerned, postmortem was conducted by P.W.28 Dr.Shashikant Shamrao Bhise on the dead body of Santosh and he had signed the postmortem report at Exhibit 208. The cause of death was “shock due to infracranial hemorrhage due to brain laceration. Injury Nos. 1 and 2 were noticed on the parietal region and were fire arm injuries. As per the certificate issued by him at Exhibit 207 he opined that the said injuries were possible bu the bullets fired. It is not disputed that Santosh died on account of the injuries caused by fire 13 cri-appeal-646-650-651-691-02 arm. P.W.23-Dr. Edemundo Josef Rodrigues conducted the postmortem on the body of Jaishri on 23rd May, 1998 at Goa Medical College between 2.20 to 4.00 p.m.,and he signed the postmortem report at Exhibit 152. Before her death Jaishri was operated by Dr. Jadhav and pallets he had recovered from her body were handed over to the police. Even during postmortem he had recovered pallets from the body of Jaishri which were handed over to police in sealed envelope. As per him the cause of death was shock as a result of hemorrhage and peritonitis consequent to firearm injuries to abdomen associated with fracture of both legs. Thus Jaishri died a homicidal death on account of fire arm injuries is not in dispute. 6. It would be appropriate to set out the injuries noticed on the dead body of Santosh and Jaishri by P.W.28 Dr. Shashikant Shamrao Bhise, and P.W.23 Dr. Edemundo Josef Rodrigues Injuries on the body of Santosh 1. C.L.W. on right parietal region, round in shape about 2 x 1 cm. edges irregular and inverted, brain deep. Burns near edges. Hair burnt near edges. 14 cri-appeal-646-650-651-691-02 2. C.L.W. on the left parieto occipital region. 3X2 cm Brain deep. Behind and upper the left ear, irregular lacerate edges and wound is everted. 3. C.L.W. on the left parietal region 3 x 1 cm. 4. C.L.W. on the right ankle on the medical aspect 5x1 cm. 5. Contusion on both shoulder 3x1 cm. 6. Abrasion on the right flank 3x1 cm. 7. Abrasion on the right hand at the middle phalynx and on the middle phalynx. 8. Abrasion on the right, wrist 2x1 cm. on dorsal aspect. 9. Punched in irregular depressed in skull on the right parietal region x2 x 1 cm. Direction from outside inwards. 10.Punched out irregular fracture in skull on the left pareital occipatal region from inside outwards 3 x 2 cm. 11.Irregular fracture of ethroad bone from right to left. Injuries on the body of Jaishri 1. Lacerated punctured wound 1 cm x 1 cm. of firearm entry wound with inverted margin situated in left iliac fossa at the level 15 cri-appeal-646-650-651-691-02 of symphysis pubis, 4 c.m. to left of mid line and 86 cms. above left heel. There was no abrasion or contusion collar, no scorching. The entry wound has made puncture in the mesentry and intestines which is resected and sutured with anastomosis by surgeon. The trak of wound is horizontal from left to right with effusion of blood in the posterior part of abdomenal muscles in right renal angle. No firearm missile recovered. However, the same is seen on x-ray and is removed by surgeon. 2. Stitched surgical verticle median incised wound of 22 cms. X stitched on either side of umblicus. There are also two surgical drainage wounds with malecot drains in situ in both iliac fossae. 3. Superficial lacerated punctured wound of 5 x 5 mm. in mid medial aspect on right arm with effusion underneath and no missile recovered. 4. Lacerated punctured wound 1 x 1 cm. in upper medical aspect of left thigh with through and through track of missile in the thickness of muscle with effusion of blood and with exit wound of 1.2 c.m. diameter in upper medial aspect of the left thigh over its back portion, total depth is 15 cm. and the exit wound is everted with puckering of margin. The direction is from before 16 cri-appeal-646-650-651-691-02 backwards, downwards and medial words. 5. Two lacerated punctured wounds of 1 cm. X 1 cm. each in upper front of right thigh outer part, 4 cm., apart with inverted margin with corresponding wound track from before backward in the thigh muscle and with two exit wounds of 1.2 c.m. each with everted margin, in middle outer back of right thigh. The direction is from before backward, downward and outward with total depth of 14 cms. each. There is effusion of blood along with track of wound. 6. A superficial lacerated punctured wound of 5 x 5 mm. with round ball pellet underneath the upper medial aspect of right thigh with inverted margin. 7. Lacerated punctured wound of 1 x 1 cm. with inverted margin with co-mminuted fracture of lower third of left tibia corresponding exit wound of 1.2 cm. with everted margin in lower third back of left leg outer aspect with a track wound of 8 cm. from before backward. No missile recovered. 8. Two lacerated punctured wounds of 1 x 1 cm. each in lower middle front of right leg and lower third front of right leg with everted margins. Four deformed round ball marks, two big and 17 cri-appeal-646-650-651-691-02 two small revocered in the lower third back and lower middle back of leg with effusion along with round track with communative fracture and shattering of right tibia and fibula bones in lower third. 7. Jaishri had sustained in all 9 pallets injuries and fracture on her legs. P.W.23 stated before the Court that in normal course the fracture on legs would not cause death and Jaishri’s death was on account of the fire arm injuries. P.W.27 Dr. J. Rodrigues was the Assistant Professor in Surgery in the Goa Medical College at the relevant time and he stated before the Court that on 21st May, 1998 a patient by name Nitin Upade P.W.21 was admitted in the surgical Ward No.107 of the said Medical College and the admission record at Exhibit 203 was placed on record. The patient was complaining with breathlessness and chest paining and the pulse was of 130 P.M. On respiratory system examination he found right lower and midzone absent and upper zone present. The Chest X- ray shown right haemopnuemothorax and bullet was seen in the right side of the chest. The limited C.T. Scan of the thorax was done to localise the bullet and the patient was operated. In the operation bullet was not taken out of the body as its removal could have endangered the patient’s life. The patient was discharged on 1st June, 1998. Thus he 18 cri-appeal-646-650-651-691-02 remained in the hospital for about 10 days. In his cross examination the witness admitted that the radiologist report indicated only a one foreign body and he was not able to indicate whether the injuries was by a bullet or by a pallets and obviously what remained in the body was a pallets or a bullet. He also stated that the injuries sustained by the patient was grievous. The evidence thus brought on record went to show that Santosh as well as Jaishri died homicidal death caused by fire arms and P.W.21 survived despite receiving a gun shot injury and because of the medical treatment that he received. 8. To understand as to how the incident had taken place it would be appropriate to start from the evidence of P.W.25-Tanaji Balu More, who was the Police Station Officer from 10.00 a.m. on 20th May, 1998 to 6.00 p.m. on 21st May, 1998. In his deposition before the Court he stated that accused No.5-Amrit Shantaram Upade reached the Police Station at about 1.45 a.m. on 21st May, 1998 and wanted to lodge a complaint. His complaint was reduced in writing as per his directions and C.R.No.26 of 1998 came to be registered (Exhibit 164-A). On investigation into the said C.R. the charge sheet was filed and on 19 cri-appeal-646-650-651-691-02 committal the case was registered as Sessions Case No.37 of 2000. He further stated that P.S.I. Desai P.W.29 was not at the police Station when accused No.5 had reached and a message was given to him about the firing incident that had taken place at village Upale. He had handed over the charge to P.S.I. Desai at about 12.35 noon on 21st May, 1998. He further admitted that at about 2.00 a.m., two persons from Upalewadi had reached the Police Station and wanted to lodge a complaint, but he could not remember their names. He also admitted that he did not record their complaint, despite the fact that he was a Police Station Officer and that it was a complaint of murder at Upalewadi. He also admitted that the complainant did not disclose the names of any of the accused, nor they had disclosed description of weapons used in the incident. He further admitted that when a cognizable offence was brought to his notice it was his duty to register the F.I.R. immediately, but he had communicated the said incident to the P.S.I. who was at his residence. He also admitted that the said information was also not recorded in the station diary though it was essential to take such entry. P.S.I. Desai visited the Police Station between 2.20 to 2.25 a.m. but did not record any complaint. 20 cri-appeal-646-650-651-691-02 9. P.W.26-Anant Gopal Supal was the Police Head Constable with Vaibhavwadi Police Station at the relevant time. He stated before the Court that Bhaskar Upade and Anant Upade had contested the Grampanchayat election of Upalewadi against each other and accused No.1 and accused No.5 were trying to bring pressure on Bhaskar for withdrawal to which he did not respond and on that account, Bhaskar Upade , Sitaram Upade, etc., were assaulted by accused No.1-Anant and accused No.4-Jaising. On account of this incident Bhaskar Upade had lodged complaints and accordingly C.R. Nos.53/97, 54/97 and 55 of 97 were registered with the said Police Station for the offences punishable under Sections 452, 323, 504 and 506 of I.P.C. Chapter Case No.63/97 was also submitted in the Court of Executive Magistrate, Vaibhavwadi. On the date of the incident i.e. on 20th May, 1998 he was attached to the Vaibhavwadi Police Station. At about 7.00 a.m. on 21st May, 1998 he had come to know about the incident. He was directed to search out the house of the accused No.1 and 5 and, therefore, with the assistance of two panchas the search was carried out and one handle of Kukari without blade and one gun and a live cartridge were found in a box. Ankush Sakpal and Ashok Sakpal were two pancha witnesses. The seized gun was bearing No.HIM-24490 and the seized articles were 21 cri-appeal-646-650-651-691-02 marked as Article Nos.6,7 and 8 and the panchanama was drawn at Exhibit 166. This witness further stated that on 29th May, 1998 i.e. 8 days later the accused No.1 made a statement while in the lock-up that he would point out the concerned revolver at village Aainare. The police party went to the house of Shrikrishna Bhosale at Aainare and the accused No.1 had taken them to the hilly area and he took out one revolver which was concealed under the rubbish near one Jambhul tree and was seized under the panchanama (Article No.52). In his cross examination he admitted that he knew deceased Santosh Upade and on his complaint dated 17th February, 1998 Santosh Upade was prosecuted on the charges of behaving in disorderly manner under the influence of alcohol. He further admitted that there were other complaints against deceased Santosh. 10. From the evidence of PW.25 it is clear that the incident that had taken place at Upalewadi had started with the setting on fire of the cattle shed of Baliram Upade and in the very same incident the Armada Jeep of Anant Upade, accused No.1, was also set on fire. This jeep was parked at the distance of ½ Km., away from the cattle shed of Baliram 22 cri-appeal-646-650-651-691-02 Upade (accused No.3). On the basis of the complaint lodged by accused No.5 complainant party in Sessions Case No.44 of 1999 was tried and the F.I.R. arising from the complaint of P.W.14-Shankar Pandurang Upade was registered almost after 12 hours from the time of the F.I.R., filed by accused No.5 was registered. It has come in the examination-in-chief of P.W.29 Desai that the complaint of P.W.14 was recorded at the Primary Health Centre at Umbarde between 2.30 to 3.00 a.m., on 21st May, 1998. But in the cross examination he admitted that it was recorded at the Police Station and C.R. No.25/1998 was registered at 12.40 p.m. on 21st May, 1998. This witness also