1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.846 OF 2006 1. Omprakash s/o Mangilal Jayswal, Age 49 years, Occu.Service, Resident of Mulund (West), Mumbai 2. Suhas s/o Umakant Gokhale, Age 43 years, Occu.Service, Resident of Kurla (West), Mumbai .. APPELLANTS (Orig.accused Nos.2 & 8) VERSUS - State of Maharashtra .. RESPONDENT Shri K.C.Sant, Advocate for appellants Shri S.D.Kaldate, Assistant Public Prosecutor for respondent-State - WITH - CRIMINAL APPEAL NO.842 OF 2006 1. Anil s/o Mahadeo Sapkal, Age 32 years, Occu.Service, R/o Kurla (East), Mumbai 2. Raghunath s/o Pandurang Karande, Age 43 years, Occu.Service, R/o Dharavi, Mumbai 3. Dilip s/o Anandrao Ghorpade, Age 44 years, Occu.Service, R/o Mahim (West), Mumbai .. APPELLANTS (Orig.Accused Nos.3, 4 & 7) VERSUS - The State of Maharashtra .. RESPONDENT Shri R.N.Dhorde, Advocate for appellant No.1 2 Shri Joydeep Chatterji, Advocate for appellant No.2 Shri N.S.Ghanekar, Advocate for appellant No.3 Shri S.D.Kaldate, Assistant Public Prosecutor for respondent-State - WITH - CRIMINAL APPEAL NO.591 OF 2009 Raghunath Pandurang Karande, Age 49 years, Occu.Ni. (formerly service), R/o Hirai Niwas, Plot No.640-641, Nerul, Navi Mumbai .. APPELLANT (Orig.Accused No.4) VERSUS The State of Maharashtra .. RESPONDENT Shri Joydeep Chatterji, Advocate for appellant Shri S.D.Kaldate, Assistant Public Prosecutor for respondent-State - WITH - CRIMINAL APPEAL NO.604 OF 2009 Dilip s/o Anandrao Ghorpade, Age 44 years, Occu.Service, R/o Mahim (West), Mumbai .. APPELANT VERSUS The State of Maharashtra .. RESPONDENT Shri N.S.Ghanekar, Advocate for appellant Shri S.D.Kaldate, Assistant Public Prosecutor for respondent-State - WITH - CRIMINAL APPEAL NO.240 OF 2007 The State of Maharashtra .. APPELLANT (Original complainant) 3 VERSUS 1. Namdeo Sopan Shinde, Age 38 years, R/o Shrigonda, District Ahmednagar 2. Sahebrao Babanrao More, Age 41 years, R/o Shrigonda, District Ahmednagar 3. Kisan Bhagwan Gawali, Age 41 years, R/o Osmanabad, District Osmanabad .. RESPONDENTS (Orig.Accused 5, 6 & 9) Shri S.D.Kaldate, Assistant Public Prosecutor for appellant-State Shri S.J.Salgare, Advocate holding for Smt.S.S.Jadhav, Advocate for respondent Nos.1 and 2 Shri Sandeep S.Deshmukh, Advocate for respondent No.3 CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ DATE OF RESERVING THE JUDGMENT : 12.1.2010 DATE OF PRONOUNCING THE JUDGMENT : 13.1.2010 JUDGMENT (PER P.V.HARDAS, J.) 1. Criminal Appeal No.846 of 2006 has been filed by the original accused Nos.2 and 8 while Criminal Appeal No.3. Criminal Appeal No.591 of 2009 has been filed by original accused No.4 and Criminal Appeal No.604 of 2009 has been filed by original 4 accused No.7. The appellants in the aforesaid appeals stand convicted for an offence punishable under Section 302 read with 149, 120B, 147, 148 of the Indian Penal Code and are sentenced to imprisonment for life and each to pay fine of Rs.5,000/- with a default condition of undergoing rigorous imprisonment for three months in the event of non-payment of fine, the imprisonment for life, rigorous imprisonment for one year and rigorous imprisonment for two years, respectively, by the Additional Sessions Judge, Ahmednagar, by judgment dated 2.12.2006, in Sessions Case No.2 of 2005. By these appeals the appellants question the correctness of their conviction and sentence. Criminal Appeal No.240 of 2007 has been filed by the appellant- State challenging the acquittal of original accused Nos.5, 6 and 9. Since all these appeals arise from the judgment, all these appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus. The prosecution case is unfolded through the evidence of P.W.2 A.P.I. Bhagwan Kadam who was attached to the Dharavi Police Station at Mumbai. On 28.9.1999, at about 11.00 p.m. original accused No.1 and the other accused had proceeded to Daund. Before leaving the Police Station, as per Entry No.45 5 certain weapons and ammunition came to be given in the custody of the accused. The entry at Sr.No.45 which is Exh.84 gives the details of the weapons which were entrusted to the accused. Accused No.1 P.I. Chavan had carried 9 mm pistol with ten rounds while accused No.2 A.P.I. Jaiswal was armed with 0.38 mm revolver with six rounds. Accused No.8 P.S.I. Gokhale was armed with 9 mm pistol with two rounds and accused No.3 Police Constable Sapkal was armed with 9 mm pistol and some rounds of ammunition. Accused No.4 Karande was armed with 9 mm pistol and some rounds of ammunition. Original accused No.7 Dilip Ghorpade was not armed with any weapon. Thus, in all five Officers and six Constables proceeded to Daund. Original accused No.1 expired during the pendency of trial before the Sessions Court and, therefore, accused Nos.2 to 9 were arraigned as accused and faced the trial. The Police party consisting of the accused and the other Constables after leaving Dharavi on 28.8.1999 reached Daund on 29.8.1999 at about 1.00 p.m. A vehicle belonging to P.W.17 Naikwade came to be hired by the accused. The accused proceeded to a certain destination and returned back to the Police Station at Daund and informed P.I. Bharat Patil about the Police party being attacked by mob of Pardhis and the Police party was required to open fired. 3. P.W.1 Sangita Kale wife of Duryodhan Kale lodged her 6 complaint at Exh.73 of having noticed the dead body of her husband near a small bridge at village Nimgaon Khalu. It appears that her husband who was working as a Watchman had gone to attend his duties and since he did not return back in the evening, she made enquiries at Daund and since nothing fruitful was disclosed in the enquiries she had gone to Police Station at Daund and had contacted P.S.I. Patil and had informed him about the fact that her husband was missing. P.I.S. Patil informed her that if her husband was alive he would return home. According to her she waited till Monday and thereafter she had gone to Nimgaon Khalu and her attention was invited on account of the crowing of the crows and going near the crows she had noticed dead body of her husband. Accordingly, she informed the Police Patil and in his company P.W.1 Sangita had lodged her report at Exh.73. On the basis of the complaint at Exh.73, an offence vide Crime No. 207/1999 under Section 302, 143, 147, 148 of the Indian Penal Code and under Section 37(1) (3) and 135 of the Bombay Police Act came to be registered. Inquest panchnama of the dead body of deceased Duryodhan came to be drawn on 30.8.1999 vide Exh. 74 in the presence of panch witnesses. Similarly, the scene of the offence panchnama at Exh.75 came to be drawn on 30.8.1999 in the presence of panch witnesses. From the scene of the offence blood mixed mud and ordinary mud came to be seized. Apart from this nothing incriminating came to be seized from the scene 7 of the offence. The dead body of deceased Duryodhan was referred for post mortem examination and post mortem came to be conducted by original accused No.5. The post mortem report has been exhibited at Exh.176, on the basis of the admission of the said document by the accused, vide notice to admit the document at Exh.81. Perusal of Exh.81 (1) discloses that the post mortem report came to be admitted by accused 2 to 4, 5 and 7 only. Original accused Nos.6, 8 and 9 did not admit the aforesaid document. The aforesaid document, therefore, in our considered opinion could not have been exhibited on part admission by some of the accused. In any event, the cause of death as was opined by accused No.5 is that deceased Duryodhan had died on account of an injury on his right back which could be caused by a sharp pointed iron rod or some tapering weapon or by a bullet. Since accused No.5 was made an accused, the opinion of the accused No.5 regarding cause of death could not be questioned in cross- examination. 4. Initial investigation in the said offence came to be conducted by accused No.9 Kishan Gavali. It also appears that on the next day i.e. on 31.8.1999 a panchnama of the scene of the offence again came to be drawn at Exh.118. As per the panchnama at Exh.118 certain articles came to be seized at a distance of more than half a kilo-meter from the place where the 8 dead body of deceased Duryodhan was noticed. The aforesaid articles are one right leg chappal, a packet containing powder of red chillies, a pair of blue coloured chappals, a cigarette packet, a pair of black coloured shoes and one empty plastic bottle. From the scene of the offence also three empty bullets, one live cartridge and one flattened bullet came to be seized. The clothes of the deceased came to be seized vide seizure memo at Exh.96 in the presence of P.W.5 Ram. The clothes of the deceased comprised of shirt, pant, buniyan, underpant, waist string and one Rakhi. The investigation of the aforesaid crime came to be entrusted ultimately to P.W.24 Prakash Rade who then was working as the Additional Superintendent of Police (CID) at Nasik. He accordingly recorded additional statements of P.W.1 Sangita and four other witnesses. He visited the scene of the offence and verified the scene of the offence panchnamas in the presence of panch. He had also drawn supplementary scene of the offence panchnama and had issued a letter to the Taluka Magistrate for drawing the sketch of the scene of the offence. Statements of other witnesses came to be recorded and the X-ray report and the Histopathelogical report at Exh.128 and 166 came to be obtained by him. On 28.10.1999 he forwarded the three empty cartridges, one live cartridge and one flatten fired bullet, one pistol and another pistol of 9 mm, one revolver and the other articles seized during investigation to the Chemical Analyzer at Aurangabad 9 along with the forwarding letter at Exh.209. It appears that the revolvers which were in the possession of the accused came to be seized vide seizure memo at Exh.101 in the presence of P.W.7 Bandu. The sketch map of the scene of the offence is at Exh.105. The other articles namely blood mixed mud and controlled mud seized from the scene of the offence also came to be forwarded to the Chemical Analyzer along with a requisition at Exh.210 on 28.10.1999. The aforesaid articles were actually received by the Chemical Analyzer on 5.11.1999. On 21.12.1999, report of the Radiologist from Pune was received at Exh.128. On 2.8.2000, the reports from the Chemical Analyzer at Mumbai were received which are at Exhs.177 to 182. On 2.10.2002, he obtained certificate regarding the final cause of death from the Medical Officer, Shrigonda namely accused No.5 at Exh.175 and on 1.5.2003 arrested original accused Nos.1 to 6 vide arrest panchnama at Exhs.151 to 155. Accused No.7 came to be arrested subsequently on 4.5.2003. The report of the handwriting expert was received and further to the completion of investigation a charge-sheet in the said crime came to be filed by P.W.25 Bhagwan Uttam Dhoble after obtaining the necessary sanction from the competent authorities to prosecute the accused. 5. On committal of the case to Court of Sessions, the trial 10 Court vide Exh.58 framed charge against the accused for offence punishable under Section 147, 148, 149, 120B, 302, 201 and 218 read with 34 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. The defence of the accused was of denial and the prosecution in order to establish the offence against the accused beyond reasonable doubt examined twenty- five witnesses. The case of the prosecution is based on circumstantial evidence. The trial Court after appreciating the evidence of the prosecution witnesses recorded the conviction and sentenced the appellants as aforestated while acquitting original accused Nos.5,6 and 9. The State being aggrieved by their acquittal has also filed an appeal. 6. Before we advert to the submissions advanced before us by the learned Counsel for the appellants and the learned Assistant Public Prosecutor on behalf of the respondent-State and the appellant-State and the learned Counsel for respondents, it would be useful to refer to the evidence of the prosecution witnesses. 7. Prosecution has examined P.W.1 Sangita Kale wife of deceased Duryodhan Kale. P.W.1 Sangita states that she was residing with her three daughters and one son along with her husband at Sonewadi. Her husband deceased Duryodhan was working at village Patas as a Watchman. He used to go everyday 11 to his office and return back in the evening. Since Duryodhan did not return back in the evening, she thought perhaps that he must have given some overtime duties. She accordingly made enquiry at Daund and since no fruitful result was obtained in the enquiry she had met P.W.4 Bharat Patil, P.I. of Daund Police Station and had informed him about the missing of her husband. According to her P.W.4 P.I. Patil informed her if her husband was alive he would return back. She waited till Monday and thereafter had gone to Nimgaon Khalu and her attention was attracted by the crowing of the crows. On going near the place where the crows were crowing she noticed the dead body of her husband near a small bridge. She had seen injuries on his body and had accordingly informed the Police Patil of Nimgaon Khalu and thereafter had gone to the Shrigonda Police Station and had lodged her report. According to her accused No.9 P.S.I. Gavali had told her that “something must have taken between us”. She states that she had not stated in her complaint at Exh.73 about having expressed suspicion against one Shatrughan Bhosale and others on account of certain enmity. According to her she had gone to the Primary Health Center where the post mortem on the dead body of her deceased husband was being performed. According to her Dr.Shinde, accused No.5 had shown her a bullet which was blood stained as the bullet which had been extracted from the body of her husband. She states that accused No.5 12 Dr.Shinde and accused No.6 Sahebrao More, a Sweeper in the Government Hospital at Shrigonda had demanded Rs.1,000/- and had later on reduced the demand to Rs.500/-. According to Sangita she had expressed the inability to pay the aforesaid amount and thereupon accused No.5, Dr.Shinde had expressed that he would do what he wanted to do. She states that this fact was disclosed by her in the statement recorded by the Investigating Officer P.W.24 Prakash Rade. In cross-examination on behalf of accused No.1 she has admitted that she was called by Mr.Rade on 2-3 occasions and on each occasion her statement came to be recorded. She has admitted not to have stated in her statement recorded by Mr.Rade that she had expressed suspicion on the Pardhis as they were on cross terms with her. She has also admitted as true that she did not know at that time that her husband had been killed by the Police. She corrected herself to state that she had the knowledge that her husband was killed by the Police. She has admitted not to have personally witnessed the murder of her husband. In cross-examination on behalf of the other accused she has admitted that at about five years earlier, son of one Shatrughan had died on account of snake bite. She has denied the suggestion that her father-in-law practices black magic and had induced the snake to bite son of Shatrughan. She has denied the suggestion that on account of death of son of Shatrughan there was dispute between Shatrughan and her 13 father-in-law. She has denied the portion marked “A” in her statement dated 1.10.1999 to that effect. Similarly, she has denied portion marked “A” in her statement dated 19.1.2000 that she had suspicion against her relatives as they have killed her husband. In further cross-examination she has admitted that hut of Shatrughan is near the place where the dead body was found. She has also admitted that she had learnt in the village about some firing and thereafter had learnt about the death of her husband. She has admitted not to have stated in her statement recorded by the C.I.D. about accused No.5 removing the bullet and demanding the amount to her. Similarly, omission has been duly proved that she had not stated in her statement recorded by C.I.D. that accused No.5 had shown a bullet stained with blood and thereafter had demanded Rs.1,000/- and had reduced the demand to Rs.500/-. Omission has been duly proved that she had not stated in her previous statement recorded by the Police about the demand of Rs.1,000/- and the reduced demand of Rs.500/- and about the blood stained bullet being shown to her by accused No.5. Omission has been duly proved that she had not stated that she had informed accused No.5 about her inability to pay the amount and about accused No.5 showing her the blood stained bullet. She then admits that Investigating Officer Mr.Rade had informed her that there was suspicion against accused No.5 being involved and had told her to disclose about the blood stained 14 bullet shown by accused No.5 and had also asked her to implicate him. In further cross-examination she has admitted that her husband and did not have any quarrel with anyone. She has also admitted that there was no quarrel between her husband and Shatrughan throughout their lives. Whatever quarrels were existing between them had been settled. She states that when she was searching for the dead body of her husband, her sister- in-law and father-in-law were also present. She has admitted that she had not stated in her complaint that her husband had sustained a bullet injury. Similarly, she has admitted not to have stated in her statement recorded by C.I.D. that accused No.5 Gavali was not permitting her to come to the Police Station. Similarly, omission has been duly proved about Gavali telling her that something must have occurred between them. Omission has been duly proved that she had not stated in her statement before the C.I.D. that accused No.9 Gavali had not taken cognizance of her complaint. 8. Prosecution has examined P.W.3 Chandrabhaga, sister of deceased Duryodhan. Chandrabhaga states that she was residing at village Ganeshwadi and used to visit village Sonewadi frequently as her parents were residing there. She states that she along with P.W.1 Sangita and her father Gyana had gone in search of her brother Duryodhan. She states that they had seen Duryodhan lying in village Nimgaon Khalu with a bullet injury on 15 his back. She states that they had accordingly informed the Police Patil and thereafter the Police Patil had informed accused No.9. She states about drawing of the panchanamas and about sending the dead body for post mortem examination. She states that in her presence, the bullet was removed by accused No.5 and accused Nos.5 and 6 had shown the bullet and had demanded Rs.1,000/-. She states that she had informed them that she did not have the requisite amount and accused Nos.5 and 6 had informed her that they would do what is to be done. She states that thereafter the dead body was handed over to them. In cross-examination omission has been duly elicited that she had not stated in her previous statement that her brother had died in firing. Omission has been duly elicited that she had not stated in her statement recorded by the C.I.D. about accused No. 5 showing her the bullet and demanding Rs.1,000/- and thereafter reducing the demand to Rs.500/-. Omission has been duly elicited that she had not stated in her statement recorded by the C.I.D. about accused No.5 threatening about he would do what he wanted. Omission has been duly elicited in the cross-examination that she had not stated in her statement recorded by the C.I.D. about accused No.6 showing her the bullet and demanding Rs. 1,000/- and reducing the demand to Rs.500/- and also about accused No.6 threatening her. Omission has been duly elicited that she had not stated in her statement recorded by the C.I.D. 16 about her brother dying on account of bullet injury. She has feigned ignorance if son of Shatrughan had died on account of snake bite. She has denied the suggestion if her father had killed son of Shatrughan. She had denied the portion marked ”A” in her statement dated 2.10.1999 about son of Shatrughan dying as a result of snake bite and that her father was responsible. 9. P.W.4 P.I. Bharat Patil states that he was attached to the Daund Police Station and on 29.8.1999 while he was present in the Tahsil office one Constable had informed him about the arrival of Police Officers from Bombay. He states that he had noticed one Sumo jeep and one jeep outside the compound of the Police Station. He states that the Police Officers informed him that they had gone to Nimgaon Khalu Taluka Shrigonda and they were attacked by 60 to 70 Pardhis. They requested that they may be permitted to make the phone call. He states that P.S.I. Gokhale and two other Police personnel telephoned to their office at Bombay and talked to P.I. Gaikwad of Dharavi Police Station and informed him about being attacked by a mob of Pardhis and about the Police party being required to fire. According to him P.I. Gaikwad informed the Police Officers that they should inform the Shrigonda Police station as the incident occurred in their jurisdiction. He states that thereafter a telephone call was made to A.P.I. Gavali of Shrigonda Police Station and A.P.I. Gavali was apprised about the incident. A.P.I. Gavali i.e. accused No.9 17 informed P.W.4 Bharat Patil to send the Police Officers for recording their F.I.R. The Police party accordingly proceeded to the Shrigonda Police Station. He states that at about 8.00 p.m. he received a telephone call from P.I. Gaikwad asking him if the Police party from Bombay were at the Police Station. P.W.4 Bharat Patil informed him that the Police party had proceeded to Shrigonda Police Station and requested P.I. Gaikwad to contact A.P.I. Gavali at the Shrigonda Police Station. He further states that on 30.8.1999 he had received a call from Bombay and the person identified himself as D.C.P. and asked him if any offence had been registered in the Police Station in respect of the incident at Nimgaon Khalu. P.W.4 Bharat Patil informed him that the incident occurred within the jurisdiction of Shrigonda Police Station and, therefore, Shrigonda Police should be contacted. Similarly, on 1.9.1999 some Police Officers from Bombay had arrived with a request to visit the scene of the offence and P.W.4 Bharat Patil informed them to contact the Shrigonda Police Station. Fax message was received subsequently soliciting information if the Police party had requested for additional force and P.W.4 Bharat Patil informed him that no such request had been received by him. Subsequently, on 30.12.2003 one Balbhim Kamble had been produced before him and was asked if he had come to the Police Station along with the Police party and had given any written complaint. P.W.4 Bharat Patil informed the 18 Investigating Officer that Balbhim Kamble had not been brought before him at the Daund Police Station. He then states that he had contacted A.P.I. Gavali and had asked him if any Police Officers had come to lodge the complaint. He further states that no application was tendered to him by Balbhim Kamble. He further states that on 29.8.1999 when the Police party from Bombay had come to the Daund Police Station at that time one Shatrughan Bhosale was accompanying the Police party and the Police party had left him in his custody stating that they were going to Shrigonda. He states that on 30.8.1999 he had requested to Shrigonda Police Station if Shatrughan Bhosale was required by them for investigation and on Shrigonda Police Station informing him that presence of Shatrughan was not necessary, he was released. In cross-examination he has admitted as true that the Police