1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 96 OF 2008 1 Shivling s/o Uttreshwar More, age 55 years, occ. Agril., 2 Shantilal s/o Shivling More, age 30 years, occ. Agril., 3 Mohan s/o Shivling More, age 25 years, occ. Agril., All r/o Chakarwadi, Taluka & District Beed. ...Appellants (Orig.accused nos.1 to 3) VERSUS 1 The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav, , advocate for the appellants. Shri K.J.Ghute Patil, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 16.02.2010 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The present appeal is directed against the conviction and sentence inflicted upon the appellants (original accused nos. 1 to 3) herein by way of judgment and order dated 29.12.2007, 2 rendered by the Adhoc Additional Sessions Judge-I, Beed, for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and sentencing them to suffer imprisonment for life each and to pay a fine of Rs. 3,000/- with default condition for non- payment of fine to suffer R.I. for two years; and also sentencing them for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code to suffer R.I. for five years and to pay a fine of Rs. 1,000/- each with default condition for non-payment of fine to suffer further R.I. for one year; and also sentencing them for the offence punishable under Section 506 (2) r/w Section 34 of the Indian Penal Code to suffer R.I. for three years and to pay a fine of Rs. 1,000/- each with default condition for non-payment of fine to suffer further R.I. for six months; and the appellants question the correctness and legality thereof. 2 The factual matrix of the prosecution case can be unfolded as under :- On 23.11.2006, PW8 PSI Arun Kulkarni was attached to Neknoor police station and was on duty on the said date, and at about 2.15 p.m., P.S.O. Neknoor received a telephonic message from Chatrabhuj Annasaheb Pawar, Sarpanch of Chakarwadi and thereby he informed that dead body of a male person was lying in the standing Tur crop near the river in Chakarwadi vicinity beyond canal. Accordingly, P.S.O. Neknoor police station made station 3 diary entry No. 328 of 2006 entry no. 26 at 2.15 p.m. on the said date to that effect. Pursuant to the said message, PW8 PSI Arun Kulkarni proceeded to the said spot at Chakarwadi along with the police staff and two panchas. There was a foot way leading to Nandur Phata at a distance of 1½ km. from Chakarwadi towards eastern direction and on that foot way, they found blood stains and one human thumb, as well as they found blood stains and marks of dragging from Jawar crop towards northern direction of that foot way, as well as they detected blood stains on Jawar crop at a distance of about 30 to 60 feet from that foot way. Beyond the Jawar crop, there was wheat crop standing in the field and they found that there was mud in that wheat crop and they also noticed four human foot prints beyond that wheat crop. Moreover, there was another field in which Tur crop was standing and the height of the Tur crop was about 3½ feet. They found a dead body of a male person in that Tur crop field. One Hanumant More had accompanied with them, who identified the dead body which was of one Pandurang Shankar Vaidya. Hence, photographer, namely Suresh Rokade was called and he took the photographs of the dead body from all the angles, as well as the place from which it was dragged upto the place where the dead body was lying. 3 Moreover, PW8 PSI Arun Kulkarni prepared the spot panchanama (Exh.42) in presence of PW6 Shrimant More and seized the blood mixed soil and plain soil from the spot thereunder. 4 He also prepared the inquest panchanama (Exh.21) of the dead body in presence of panchas including PW6 Shrimant More. Thereafter he sent the dead body of said Pandurang Vaidya to Primary Health Center, Neknoor with Police Constable Sangle with requisition letter for conducting the postmortem thereon. 4 It is the case of the prosecution that thereafter PW1 Mahadeo Handge and relatives of Pandurang Vaidya came on the spot. Since there was tense situation, PW8 PSI Arun Kulkarni asked PW1 Mahadeo Handge and said relatives to go to the police station. Accordingly, PW1 Mahadeo Handge went to Neknoor police station and PW8 PSI Arun Kulkarni took his complaint as per his version and same was registered as first information report (Exh.29) and offence was registered under Sections, 302, 201, 506 (2) r/w 34 of the Indian Penal Code under C.R.No. 180 of 2006 on 23.11.2006. Moreover, PW8 PSI Kulkarni recorded the statements of the witnesses including PW5 Jitendra Gaikwad on 23.11.2006 and the names of the accused were disclosed therefrom. Accordingly, the police personnel proceeded to Chakarwadi on 23.11.2006 and brought accused no.1-Shivling, his two sons namely Shantilal- accused no.2 and Mohan-accused no.3 and accused no.4-Sahebrao at the police station, Neknoor for interrogation and thereafter said accused nos. 1 to 4 came to be arrested at 10.00 a.m. on 23.11.2006. PW8 PSI Kulkarni also recorded statements of PW3 Dr. Sushen Vaidya and Sow. Ulpha Mahadeo Handge on that day and 5 sent the requisition letter to Circle Inspector, Revenue, Beed for drawing map of the spot. Besides that PW8 PSI Kulkarni obtained the documents about the land dispute which was pending between the parties before the Civil Judge, Junior Division, Kaij court. 5 It is further the case of prosecution that on 26.11.2006 accused no.2 Shantilal made a disclosure statement that he would show the place where sickle and his clothes were concealed and the said statement was recorded under memorandum panchanama Exh. 31. Thereafter accused no.2 Shantilal led the police personnel and the panchas to his house at Chakarwadi and produced one sickle article 4 and his shirt article 8, pant article 9 and banian article 10. He also produced the shirt article 11 and pant article 12 of accused no.3 Mohan. Accordingly the said articles were seized under the memorandum panchanama Exh. 32 in presence of panchas including PW2 Chakradhar Shinde. Moreover, on 26.11.2006 PW8 PSI Kulkarni also recorded the statement of Jalindar Hazare, Vishwanath Doiphode and Goraksha Doiphode. Moreover, he also deposited seized muddemal articles in Neknoor police station. Thereafter on 28.11.2006, he moved an application before the Judicial Magistrate, First Class , Beed for adding Section 120B of the Indian Penal Code, since conspiracy was hatched in committing murder of Pandurang Vaidya. Therebefore on 25.11.2006 he sent the muddemal articles to the office of Chemical Analyser, Aurangabad for chemical analysis along with requisition 6 letter Exh.47. Accordingly, the Chemical Analyser's report dated 9.5.2007 was received which was produced at Exh. 51. After completion of investigation, the charge sheet was filed against the accused persons before the learned Chief Judicial Magistrate, Beed, which was consequently allotted to the learned Judicial Magistrate, First Class, Beed. However, since the offence under Section 302 of the Indian Penal Code was exclusively triable by the court of Sessions, learned Magistrate committed the case to the Court of Sessions, Beed on 31.1.2007. Thereafter the learned Adhoc Additional Sessions Judge, Beed framed charge against the accused persons under Sections 302, 201, 120B, 506 r/w Section 34 of the Indian Penal Code at Exh. 7 and the accused persons denied the accusations and claimed to be tried. 6 To substantiate the charges levelled against the accused persons, the prosecution has examined in as much as 9 witnesses as mentioned below. PW1 Mahadeo Bhimrao Handge, eye witness, complainant, who lodged the first information report Exh. 29 PW2 Chakradhar Bapurao Shinde, panch witness regarding seizure of weapon and clothes of accused nos. 2 and 3 Exhs. 31 and 32. PW3 Dr. Sushen Shankarrao Vaidya, brother of deceased. PW4 Deelip Baburao Zambre, who saw the accused and the victim and complainant proceeding towards the spot together. PW5 Jitendra Haribhau Gaikwad, who saw accused and 7 victim proceeding towards the spot together. PW6 Shrimant Vikram More, panch witness to inquest panchanama (Exh.21) and spot panchanama (Exh.42) on 23.11.2006. PW7 Jalindar Dharma Hazare, eye witness, turned hostile. PW8 Arun Bapurao Kulkarni, investigating officer. PW9 Dr. Praveen Bapurao Chavan, who performed the autopsy on the dead body of Pandurang Vaidya and produced the postmortem notes Exh. 53. 7 The defence of the accused was of total denial and they pleaded that the disputed land was fertile and the complainant in consultation of Sushen Vaidya falsely implicated them in this case in order to grab the disputed land. It is also the defence of the accused that the father-in-law of accused no.2 namely Bhagwant Handge who hails from Babhulgaon had old land dispute with the complainant and, therefore, the complainant falsely implicated the accused persons in the present case. However, the accused persons have neither examined any defence witness nor produced any documentary evidence to substantiate their defence. 8 After scrutinizing and appreciating the evidence on record, learned Trial Judge convicted and sentenced the accused persons as afore stated. Being aggrieved and dissatisfied by the said judgment and order dated 29.12.2007, rendered by the Adhoc Additional Sessions Judge-1, Beed convicting and sentencing the accused persons, the appellants (original accused nos. 1 to 3) have 8 preferred the present appeal challenging the said judgment and order and praying for quashment thereof. 9 Before adverting to the submissions advanced by the learned counsel for the appellants and also learned A.P.P. for the respondent, we feel it useful to refer to the material evidence adduced by the prosecution and in the said context, coming to the deposition of PW1 Mahadeo Handge, who claims to be an eye witness and the complainant in the present case, has deposed that he knows deceased Pandurang Vaidya, who was his brother-in-law and his another brother-in-law is PW3 Dr. Sushen Vaidya as well as he also knows the accused persons. He also stated that his sister was married with accused no.1 Shivling and there was dispute between deceased Pandurang and accused Shivling More in respect of agriculture land and quarrels had taken place between them on the count that Shivling More allegedly got executed the sale deed of the land from Pandurang by cheating him. He further stated that on 21.11.2006, accused no.1 Shivling sent a message to deceased Pandurang Vaidya and called him to Chakarwadi for settling the said land dispute and accordingly Pandurang Vaidya met PW1 Mahadeo in the night and informed him about the said message and conveyed that he intended to go to Chakarwadi on 23.11.2006. Accordingly on 23.11.2006 PW1 Mahadeo and Pandurang went to Chakarwadi in the morning to the house of accused no.1 Shivling, where all the accused persons were present. Thereafter accused 9 no.1 Shivling and his sons asked them to come to the field for discussion of settlement and accordingly PW1 Mahadeo, Pandurang and accused nos. 1 to 4 proceeded towards the field by walk i.e. towards the eastern side of village Chakarwadi. 10 It is stated by PW1 Mahadeo that after crossing the north-south stream, PW1 Mahadeo halted for urinating; whereas Pandurang and accused proceeded further. After completion of said call of nature, PW1 Mahadeo turned towards them and witnessed that accused no.2 Shantilal, accused no.3 Mohan and accused no.4 Sahebrao were giving blows of sickle and knife on the head and neck of Pandurang, and therefore, he raised hue and cry loudly and requested them not to assault Pandurang by sickle and knife. However, on hearing hue and cry of PW1 Mahadeo, accused no.1 Shivling rushed towards him and threatened him that he would finish him if he intervened in their quarrel and directed him to return back quietly. PW1 Mahadeo stated that he was frightened and no one was there except the deceased and the accused, and therefore, he ran away back side and while running looked on the back side and further witnessed that accused persons committed the murder of Pandurang and they dragged the dead body of Pandurang and kept it in the standing crop of Tur. He further stated that after witnessing the said incident he had gone to Waghe Babhulgaon for hiding himself. He also intimated to Bibishan Wagh and Dilip Zambare about the said incident. He further stated 10 that he telephoned to PW3 Dr. Sushen Vaidya at Beed and thereupon he came to Waghe Baghulgaon. Thereafter PW3 Dr. Sushen, PW1 Mahadeo, Bibishan Wagh and Dilip Zambre proceeded to Chakarwadi and found that police personnel of Neknoor police station had already arrived at the spot of the incident and they were preparing the panchanama. PW1 Mahadeo stated that he asked police personnel to take his complaint and thereupon police instructed him to come to the police station, Neknoor. Accordingly, PW1 Mahadeo, Bibishan Wagh, Sushen and Dilip Zambre went to Neknoor and PW1 Mahadeo alone went to the police station and lodged the complaint (Exh.29) and offence was registered under C.R. No. 180 of 2006 under Sections 302, 201, 506 (2) r/w Section 34 of the Indian Penal Code at about 1800 hours on 23.11.2006. 11 During cross-examination, PW1 Mahadeo stated that Chakarwadi is situated at a distance of 5 kms. from Waghe Babhulgaon via Bandewadi, but the said road is a kaccha road. He also stated that he cannot say whether the distance between Waghe Babhulgaon via Nandur Phata by road is more than 15 kms. He also stated that he has got personal knowledge relating to the sale transaction of Pandurang of his agriculture land. He further stated that Pandurang used to reside at Waghe Babhulgaon and he used to go to his house daily and Pandurang also used to go to his house often and PW3 Sushen is not residing at Waghe Babhulgaon since last ten years. As regards the civil dispute between them, he 11 stated that he does not know as to who filed the civil suit against which defendant. He also stated that the disputed land is situated at Babhulgaon and Nalwandi on the eastern side of Chakarwadi. It has come in his evidence that prior to the incident, the quarrel had taken place between deceased Pandurang and accused no.1 Shivling for 2-3 times, but no complaint was lodged pertaining to the said incident. 12 As regards the incident, he stated that on 23.11.2006 they proceeded to Chakarwadi via Bandewadi at 8.00 a.m. to 8.30 a.m. by the cart way i.e. for about 5 kms. and reached there after about one hour and before reaching to the house of accused no.1 Shivling, two persons of acquaintance met them on the way and when they reached to the house of accused no.1 Shivling, all the accused were present there. He further stated that he spent about 2 minutes for urinating. He also stated that during the passage from the house of Shivling till the place of urinating, no discussion took place between them and accused relating to the settlement of land dispute, nor he asked what settlement was proposed and they were not talking with each other. He further stated that during the period of his urinating, the deceased and accused persons proceeded for about 100 feet distance. He further stated that the incident of assault lasted for about 5 to 7 minutes. He also stated that as soon as accused no.1 Shivling threatened him, he fled away from the said place towards the direction of Chakarwadi, since he 12 had fear in mind. He further stated that he did not go to Chakarwadi and straight way went to Babhulgaon and reached there after about 2½ hours from the place of incident. 13 As regards the narration of incident by PW1 Mahadeo to Bibishan Wagh and Dilip Zambre, he stated that they met him in the hotel at Babhulgaon. He also stated that he did not feel it necessary to collect some persons and proceed at the place of occurrence. Accordingly he waited for PW3 Sushen to go to Babhulgaon. He further stated that after receipt of his message, PW3 Sushen reached to Babhulgaon within 30 to 45 minutes and till his arrival PW1 Mahadeo stayed in the hotel and did not take any action. Bibishan Wagh and Dilip Zambre were also in the hotel with him. Thereafter they reached to the place of the incident by jeep from Babhulgaon within 10 to 12 minutes and found that except police personnel no villagers were there. Suggestion was given to him that disputed land was fertile land, and therefore, he conspired with PW3 Sushen and implicated the accused falsely in the case, but same was denied by him. It was also suggested to him that he has not witnessed the incident as deposed by him, but same was denied by him. Suggestion was also given to him that his wife namely Ulphana is one of the plaintiffs in the civil suit pending in Kaij court, but he stated that he does not know it. It was further suggested to him that deceased Pandurang and his father-in-law Shankar Vaidya were addicted to liquor and gambling, but same 13 was denied by him. 14 That takes us to the deposition of PW3 Dr. Sushen Vaidya, who is brother of victim Pandurang, who stated that since last 2-3 years, he is residing in Datta Nagar, Beed and he is serving in Phinix Critical Care as a Medical Officer. Deceased Pandurang was his brother. He knows complainant PW1 Mahadeo who is his brother-in-law. Deceased Pandurang and his two mothers were residing at Waghe Babhulgaon and Pandurang was rendering the agricultural work. They had 30 acres of agricultural land situated at Waghe Babhulgaon and his brother Pandurang was looking after it jointly and out of 30 acres land, half the land was standing in the name of Pandurang. He further stated that accused no.1 Shivling More got sale deed executed and deceased Pandurang repaid the amount of Shivling More, but Shivling was not ready to release the said agricultural land. Hence, his brother deceased Pandurang, he himself and his sisters had filed civil suit in Kaij court against accused no.1 Shivling More. It is further stated by him that in June, 2006, accused no.1 Shivling and his two sons and son of his sister had come to the land for sowing purpose, but Pandurang prevented them, and therefore, accused no.1 Shivling had bad eye on Pandurang Vaidya. 15 As regards the incident, he stated that it occurred on 23.11.2006 and therebefore on 21.11.2006, PW1 Mahadeo 14 telephoned him from Babhulgaon and it was revealed from the said telephone that accused no.1 Shivling More had called him and Pandurang at Chakarwadi for settlement of land dispute on 23.11.2006. Accordingly, PW1 Mahadeo and Pandurang went to Chakarwadi on 23.11.2006. He further stated that he received a telephone from PW1 Mahadeo and his brother-in-law at about 3.30 p.m. and Mahadeo disclosed PW3 Dr. Sushen that accused nos. 1 to 4 assaulted Pandurang when they were going towards the field for settlement of land and PW1 Mahadeo called him immediately at Babhulgaon. In response to the said message, PW3 Sushen proceeded to Babhulgaon and met PW1 Mahadeo and made inquiry with him and thereupon revealed that accused no.1 Shivling assaulted Pandurang and they concealed the dead body of Pandurang in standing Tur crop. He further stated that thereafter he, PW1 Mahadeo Handge, Dilip Zambre, PW5 Jitendra Gaikwad and Bibishan Wagh went to the place of incident and noticed that police personnel were already present there on the spot and they saw the dead body of Pandurang and found injuries on his neck, cheek, occipital region of head and his right hand thumb was partly cut. The dead body of Pandurang was removed to Primary Health Centre, Neknoor for postmortem purpose. He further stated that since there was land dispute in between them and accused, the accused committed murder of Pandurang with the said motive. 16 In the cross-examination, PW3 Dr. Sushen stated that he 15 did not ask either to his father or Pandurang as to for what purpose they executed the sale deed. He also stated that he himself, his two brothers and his sisters have filed civil suit in Kaij court relating to Survey No. 266-A and 21 and Regular Civil Suit No. 42 of 1995 is still pending in the said court. He further stated that deceased Pandurang is the defendant in he said suit. Curiously PW3 Dr. Sushen further stated that he and Pandurang unanimously filed the said suit. He also stated that no talk did take place between him and deceased Pandurang regarding land dispute from 21.11.2006 till the death of Pandurang. Omission was elicited in the cross- examination in respect of repayment of amount by Pandurang to accused no.1 Shivling, as well as omission was taken out in respect of the aspect that even after repayment of amount to Shivling, Shivling did not deliver the possession of disputed land. However, he admitted that he has no personal knowledge that Pandurang repaid the amount to accused no.1 Shivling. Further omission was elicited in respect of receipt of telephone call from PW1 Mahadeo at 3.30 p.m. Suggestion was given to him that he deposed falsely that he received telephone call at 3.30 p.m., but same was denied by him. It was also suggested to him that PW3 Dr. Sushen himself, PW1 Mahadeo, PW4 Dilip, PW5 Jintendra and Bibishan Wagh consulted with each other to lodge the false complaint against the accused persons, but same was denied by him. 17 Turning to the deposition of PW4 Dilip Zambre, he stated 16 that he knew deceased Pandurang as well as accused no.1 Shivling and there was land dispute between deceased Pandurang and accused no.1 Shivling. He also stated that the incident occurred on 23.11.2006 at about 8.00 a.m. to 8.30 a.m. and he had been to Sai Hair Cutting Saloon and met deceased Pandurang and PW1 Mahadeo at the bus stand. Thereupon he asked them about the purpose to be at the bus stand early in the morning and in response, they stated that they were to proceed to Chakarwadi for settlement of land dispute and at 10.30 a.m. He witnessed that they proceeded to Chakarwadi. He further stated that at about 3.30 p.m. PW1 Mahadeo came hurriedly near hotel of Bibishan Wagh and informed that murder of Pandurang was committed, when they had gone for compromise at Chakarwadi. PW1 Mahadeo telephoned to PW3 Dr. Sushen, his brother, who arrived at Babhulgaon within 30 to 45 minutes by jeep and PW1 Mahadeo disclosed the said incident to PW3 Sushen and thereafter they all went to the place of incident, which was in the Tur crop field and they saw the crops lying horizontally and police personnel were writing something. He also noticed injuries inflicted on the cheek, neck and head of Pandurang and his right hand thumb was also fractured, as well as clothes of the victim Pandurang were blood stained. 18 During cross-examination, PW4 Dilip Zambre stated that he does not know about the land dispute between Pandurang and Shivling. As regards the incident, he has stated that he did not ask 17 Pandurang and Mahadeo on 23.11.2006 as to what was the say of Shivling More pertaining to land dispute. He also admitted that no compromise has taken place between him, Pandurang and Mahadeo as to in which manner and on which condition the land dispute would be settled. Omission was elicited in respect of PW1 Mahadeo and deceased Pandurang sitting in the hotel reading news paper till 10.00 a.m. to 10.30 a.m. on 23.11.2006, but same is not material omission and same does not go to the root of the matter. Moreover, contradiction was taken out in respect of contents of portion marked 'A' in his police statement. 19 Dealing with the testimony of PW5 Jintendra Gaikwad,