1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 151 OF 1998 (against conviction) 1 Baburao s/o Rajaram Bhairat, aged 72 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. 2 Nanabhau Jijaba Muley, aged 77 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. 3 Bankat Hanumant Muley, aged 48 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. 4 Subhash s/o Mahadeo Bhairat, aged 32 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. 5 Bajirao s/o Rajaram Bhairat, aged 35 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. 6 Sandipan s/o Bhanudas Muley, aged 47 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. 7 Ashruba s/o Gyanba Muley, aged 57 years, occ. agriculture, Resident of Umri, Taluka Kaij, District Beed. ...Appellants (Orig. Accused) 2 VERSUS 1 The State of Maharashtra ...Respondent ..... Shri R.N.Dhorde, advocate for the appellants Shri S.D.Kaldate, APP for the respondent ..... WITH CRIMINAL APPEAL NO. 338 OF 1998 (against acquittal) 1 The State of Maharashtra ...Appellant VERSUS 1 Baburao s/o Rajaram Bhairat, age 64 yrs., occ. Agri., r/o Umri, Tq. Kaij, Dist. Beed, 2 Nanabhau s/o Jijaba Mulay, aged 69 yrs.,occ. & r/o as above. 3 Bankat s/o Hanumant Mulay, aged 40 yrs.,occ. & r/o as above. 4 Subhash s/o Mahadeo Bhairat, aged 25 yrs.,occ. & r/o as above. 5 Bajirao s/o Rajaram Bhairat, aged 28 yrs.,occ. & r/o as above. 6 Sandipan s/o Bhanudas Mulay, aged 39 yrs.,occ. & r/o as above. 7 Ashruba s/o Gyanba Mulay, 3 aged 49 yrs.,occ. & r/o as above. ...Respondents (Orig. Accused) ..... Shri S.D.Kaldate, APP for the appellant Shri R.N.Dhorde, advocate for respondents ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 12.10.2009 DATE OF PRONOUNCING THE JUDGMENT : 16.10.2009 JUDGMENT : (Per Shrihari P. Davare, J.) 1 Perused. Heard learned respective counsel for the parties. 2 Challenge in these two appeals is to the judgment and order rendered by the learned Additional Sessions Judge, Ambajogai in Sessions Case No. 32 of 1991 on 19.5.1998 convicting accused nos. 1 to 7 for the offence punishable under Section 325 of the Indian Penal Code and sentencing them to suffer R.I. for 5 years and fine and also convicting them for the offence punishable under Section 452 of the Indian Penal Code and sentencing them to suffer R.I. for 2 years and fine and also 4 convicting them for the offence punishable under Section 201 of the Indian Penal Code and sentencing them to R.I. for 1 years and fine; and acquitting them for the offences punishable under Sections 147, 148, 302 r/w 149 of the Indian Penal Code. 3 The appellants (original accused nos. 1 to 7) have assailed the said judgment and order by Criminal Appeal No. 151 of 1998 challenging the conviction and sentence inflicted upon them; whereas the appellant (State) has filed Criminal Appeal No. 338 of 1998 challenging the said judgment and order of acquittal of the respondents (original accused) therein and also prayed for enhancement of the sentence inflicted upon the respondents thereon. 4 The factual matrix of the prosecution case are, the victim Sakharam had two brothers, namely Parasram and PW3- Narhari, who were the residents of Kadamwadi and they were already separated and deceased Sakharam and Parasram used to reside separately in one Wada; whereas Narhari was residing in another house on the western side of the said Wada. Deceased Sakharam had retired from Army about 2-3 months prior to the incident and he was residing with his wife, namely Sojarabai @ 5 Jaimala and their children, namely PW7- Ravi, Ramesh, Pandurang and Surekha. Moreover, accused no.1 Baburao i.e. father-in-law of deceased Sakharam also used to reside with them at the relevant time, as well as victim Sakharam’s servant, namely PW4-Manik Shinde also used to reside with them. In fact, accused no.1 Baburao and other accused persons are the residents of village Umri having distance of 2 kms. from village Kadamwadi. 5 The alleged incident occurred on 24.12.1990. PW7-Ravi was in 9th standard at the relevant time, who had returned back from the school at about 5.00 p.m. and he found that his house was locked and, therefore, he went to the field, but did not find his mother there and, therefore, returned back to the house and found that door of his house was opened and his mother was sitting in the house. He took his meal and went to Kotha situated about 100 to 150 feet on the southern side of the field and thereafter stood on the way and saw that his father was returning from Kaij on bicycle. Thereafter within five minutes he saw that his father climbed on tin sheet roof and smoke was coming out of the house. Hence, he immediately rushed to the house and saw that his mother was lying on the ground and father was extinguishing the fire by wrapping bed upon her. His father, namely Sakharam told him that mother set herself on fire. PW3- 6 Narhari i.e. uncle of PW7-Ravi was also present there. Hence, immediately PW7-Ravi rushed to the thrashing flour and informed the said fact to his grand-father i.e. accused no.1 Baburao Bhairat and they returned back to the house. Accused no.1 Baburao asked Sakharam how it had happened and he stated that he would see to him and left the house immediately for Umri. 6 According to the prosecution, after the lapse of about one hour, PW7-Ravi heard the noise from outside of pelting stones towards his house and hence, he immediately closed the door from inside. He found that assailants were pelting stones and abusing. He identified the voice of accused no.1 Baburao Bhairat and said that his daughter expired and now they would kill Sakharam and burn both the dead bodies together. Out of the said assailants, four persons climbed on the tin sheet roof of Sakharam’s house and removed said tin sheets and pelted stones from upper side and stone pelted by one assailant was hit upon the head of Sakharam and he fell on the ground. Moreover, Baburao Bahirat i.e. accused no.1, and other two accused persons break opened the door by throwing stones and entered inside the house, as well as above referred four accused who had climbed on the roof also got down and all seven accused assaulted Sakharam by stones. PW7-Ravi was frightened and left 7 the house and came outside and stood near water reservoir. 7 It is also the case of the prosecution that PW3-Narhari also heard the noise of pelting of stones on the tin sheet roof of Sakharam’s house and, therefore, immediately rushed to his house by a lane and saw that accused no.1-Baburao was standing in front of his house and some persons had entered inside the house and about 25 persons were outside the house and as soon as accused no.1 Baburao saw PW3-Narhari he stated that catch him and kill him and, therefore, PW3 Narhari was frightened and rushed and stopped near the water reservoir. 8 According to the prosecution, PW4 Manik Shinde also learnt from 2-3 female persons while returning back from the field to the house of his master Sakharam that wife of his master died by burning. Hence, he went inside the house of Sakharam and saw dead body of Sojarabai lying on the ground in burnt condition. He came out of the house and stood near water reservoir and while he was standing there, about 15 persons came there and started pelting stones on the house of Sakharam. He identified accused no.1 Baburao as the assailant. He was frightened by the said stone pelting and hence went to Maroti temple and heard the voice of his master, “do not kill me”. It is also the case of 8 prosecution that PW5-Dwarkabai w/o Parasram returned back from the field and learnt from PW7-Ravi that his mother committed suicide by burning. At that time she heard noise of hitting of stone on iron sheet. Hence, immediately she came out of the house and saw 5-6 persons entered the house including accused no.1 Baburao and accused no.5 Bajirao. They stated that “pull him out and kill him”. Thereafter she left for field and remained there for whole night. 9 It is further case of prosecution that PW7-Ravi and PW3- Narhari heard the shouts of Sakharam not to kill him and save him and they also heard shouts of Sakharam, “Aai Ga Melo”. After some time the shouting was stopped. Accused no.2 Nanabhau and accused no.4 Subhash thereafter dragged Sakharam by catching his both legs and took him outside the house and dragged through the way going towards Maroti temple towards cemetery; whereas PW7-Ravi’s mother was taken out of the house and took to cemetery in a Chaddar. The aforesaid culprits collected fuel- wood, fodder, dry grass, prepared its heap and set on fire both the victim Sakharam and his wife Jaimala in the cemetery and thereafter all the said accused left the said place and went towards their village. 9 10 It is also the case of prosecution that after the occurrence of the said incident, PW3-Narhari immediately rushed to police station Kaij and narrated the afore said facts to the police. Thereafter PW3-Narhari and police went to cemetery and they saw 2 dead bodies burning and dead body of Sakharam was partly burnt. Two police personnel were deputed there and other police personnel returned back to police station. Statement of PW3 Narhari was reduced into writing and offence was registered accordingly. Thereafter the police personnel and PW3 Narhari returned back to Kadamwadi at sun rise time and two panchas were called and PW3 Narhari identified the dead body of Sakharam in presence of panchas and inquest panchanama of dead body of Sakharam was drawn and PW3 Narhari also showed the scene of occurrence of the incident in the house of Sakharam and police prepared the panchanama of scene of offence. The police personnel also called PW1 Dr. Arun Virdhe, Medical Officer, Primary Health Centre, Kaij, who came to the cemetery and found dead body of a male person partly burnt, but could not give the opinion regarding cause of death. The parts of the dead body were sent to Anatomy Department at Ambajogai for expert’s opinion. PW1 Dr. Virdhe could not give any opinion about cause of death as the body was completely burnt. The recovered bones were sent to Anatomy Department for expert’s opinion, however, 10 no opinion was received. The police personnel recorded the statements of witnesses during the course of investigation. 11 After completion of investigation, charge sheet was filed against the accused persons for the offences punishable under Section 147, 148, 452, 302, 201 r/w Section 149 of the Indian Penal Code before the leaned Judicial Magistrate, First Class. Thereafter the said case was committed to the Court of Sessions, since the offence punishable under Section 302 of the Indian Penal Code was exclusively triable by the Sessions Court. Thereafter accused persons were charged and tried for the offences punishable under the aforesaid Sections in Sessions Case No. 32 of 1991 by the learned Additional Sessions Judge, Ambajogai and came to be convicted for the offences punishable under Sections 325, 452 and 201 of the Indian Penal Code and were sentenced as afore said by the judgment and order delivered by the learned Additional Sessions Judge, Ambajogai on 19.5.1998, but they were acquitted of the offences punishable under Sections 147, 148, 302 r/w Section 149 of the Indian Penal Code. Being aggrieved and dissatisfied by the said judgment and order, the accused persons as well as the State have preferred present both the appeals. 11 12 To substantiate the charges levelled against the accused persons, the prosecution examined in as much as 8 witnesses as mentioned below :- P.W.No. Name & description Exh. No. 1 Dr.Arun Virdhe, Medical Officer, 27 Primary Health Centre, Kaij, who performed the postmortem on dead body of Sakharam and dead body of Jaimala. 2 Gorba Korde, Panch 33 for the inquest panchanama of dead body of Sakharam and scene of offence panchanama. 3 Narhari Kadam, Complainant - 36 Eye witness, brother of victim Sakharam. 4 Manik Shinde, servant of deceased 41 Sakharam. 5 Dwarkabai Parasram Kadam, 42 sister-in-law of deceased Sakharam 6 Sk.Abbas Sk. Mohioddin, 43 Police Head Constable, who was deputed at cemetary. 7 Ravi Sakharam Kadam, 52 Eye witness, son of victim Sakharam. 8 A.P.P. Madhukar Govindrao 57 Bhale, Investigating Officer. 12 13 We have perused the ocular as well as medical evidence adduced by the prosecution and coming to the evidence of the complainant, namely PW3 Narhari Kadam, at the first instance, he has stated that the incident occurred on 24.12.1990 and on that day he had been to Kaij for selling Mug at about 11.00 a.m. to 12.00 noon and returned back to Kadamwadi at about 4.00 p.m. to 5.00 p.m. And met PW7 Ravi, who caught him and started weeping. On inquiry, he disclosed that his mother committed suicide by setting herself on fire and his father Sakharam removed the tin sheet of the roof and entered into the room and extinguished the fire by wrapping bed around her and unbolted the door and opened it. PW7 Ravi also showed the place of incident to him where accused no.1 Baburao Bhairat was present and his brother Sakharam was sitting there. Accused no.1 Baburao Bhairat stated that, “is it look good and I would see Sakharam”. Thereafter accused no.1 Baburao Bhairat left for Umri immediately. PW3 Narhari went into next room and found the body of Jaimala lying on the floor in burnt condition. PW3 Narhari was there for half an hour and tried to pacify PW7 Ravi and deceased Sakharam and since it struck him that bullock cart along with bullocks were standing on the road, he left the house of Sakharam and took the bullock cart to cattle shed and went to his house. It has come in the evidence of PW3 Narhari that as 13 soon as he came out of the cattle shed, he heard noise of pelting stones on tin shed roof from Sakharam’s house. Hence, he rushed to the said place through a lane and saw accused no.1 Baburao Bhairat standing in front of Sakharam’s house and some persons had already entered inside the house and about 25 persons were outside the house. Accused no. 1 Baburao stated that, “catch him, kill him”. Hence, PW3 Narhari was frightened and rushed back and went near water reservoir and stood there. He also heard voice of shouting of his brother Sakharam that, “do not kill him, save him”. He also heard voice of accused no.1 Baburao Bhairat saying that, “drag him out, kill him”. 14 Thereafter PW3 Narhari rushed and went to Kaij police station and disclosed the afore said incident to police personnel and asked for police help, but since the police vehicle was not available, private vehicle was arranged and thereafter PW3 Narhari and police arrived at Kadamwadi. Thereafter PW7 Ravi narrated that the assailants kill his father Sakharam by stones and pulled his body in the cemetery and also carried the dead body of Jaimala and set both the bodies into fire in cemetery. Hence, PW3 Narhari and police personnel went to cemetery and saw two dead bodies burning and dead body of his brother Sakharam was partly burnt. Two police personnel were deputed 14 there and PW3 Narhari and other police personnel went to police station and report made by PW3 Narhari was reduced into writing, which is marked as Exh.37. 15 According to PW3 Narhari on the next day, panchas were called and he identified dead body of his brother Sakharam and inquest panchanama thereof was prepared. PW3 Narhari also showed the place of incident and spot panchanama was also prepared and stones stained with blood were found on the spot of incident. 16 During cross-examination PW3 Narhari stated that when he went to the police station for the first time and narrated the incident, it was not reduced into writing by the police personnel and after he reached to Kadamwadi with police personnel, he alone went to his house and they did not visit the house of Sakharam at that time, nor PW7 Ravi came out of his house at that time. He also stated that when they visited cemetery, dead body of Sakharam was lying and his head was towards southern side and just to it’s western side another body was lying in burning condition, but it is pointed out that there is no reference of the second dead body in his first information report. He further stated that when accused no.1 Baburao threatened 15 that he would see Sakharam, he did not feel that he should seek police protection. 17 The defence has also taken out some omissions in the police statement of PW3 Narhari amounting to improvement in his testimony as regards disclosure of PW7 Ravi about the fact that his father removed the tin sheet roof, entered inside the room, extinguished the fire and opened the door and also as regards the narration by PW3 Narhari to police that he went into the room and saw dead body of Sojarabai lying in burnt condition; and also as regards his narration that he was in the house of Sakharam for half an hour and tried to pacify PW7 Ravi and Sakharam and thereafter took the bullock cart to his house; and also as regards his narration to police that while he was in his cattle shed, he heard noise of pelting stones on the roof of tin sheet and thereafter immediately rushed towards Sakharam’s house through lane and also his narration to police that he saw accused no.1 Baburao Bhairat standing in front of Sakharam’s house. He further stated that he does not recollect whether he narrated before police that accused no.1 Baburao Bhairat after seeing him stated that, “catch him and kill him” and thereafter he rushed back and stood at the side of water reservoir, but could not assign any reason for non-mention thereof in first information report. 16 The defence has also taken out the improvement in his testimony amounting to omission in the first information report that he heard the voice of his brother, “do not kill me, save me”. 18 Besides that, the defence has also pointed out the contradiction in respect of aspect that PW3 Narhari had been to cemetery along with police and saw two dead bodies burning and also as regards seeing the dead body of Sojarabai @ Jaimala at cemetery, which portion is marked ‘A’ in the first information report Exh.37. 19 Keeping in mind the testimony of PW3 Narhari and the contents of the complaint lodged by him on 25.12.1990 at Exh.37 and coming to the deposition of PW7 Ravi Kadam i.e. the eye witness, who has stated that he was about 16 years old and was studying in 9th standard at the relevant time i.e. on the date of incident i.e. 24.12.1990 and on that day he returned from the school at about 5.00 p.m. and found that his house was locked and hence he kept his bicycle there and went to the field to see his mother, but she was not in the field and, therefore, he returned back to the house and found that door of the house was open and his mother was sitting inside the house. Hence, he took his meal and went to Kotha, which is situated at a distance of 100 17 ft. to 150 ft. from the house and stood on the way and saw his father returning from Kaij by a bicycle. Thereafter within five minutes he saw that his father climbed on the tin sheet roof and smoke was coming out of the house and, therefore, he immediately rushed towards the house and saw that his mother was lying on the ground and his father was trying to extinguish the fire by wrapping bed around her. His father also told him that his mother set herself on fire. Hence PW7 Ravi immediately rushed towards thrashing flour and informed the said fact to his grand-father accused no.1 Baburao Bhairat that her mother set herself on fire. Thereupon, accused no.1 Baburao Bhairat and PW7 Ravi jointly returned back to the house. PW3 Narhari i.e. uncle of PW7 Ravi was also sitting with Sakharam. Accused no.1 Baburao saw Ravi’s mother lying on the ground and, therefore, he asked Sakharam how it had happened and he would see him. After uttering such words, he left the house immediately. After some time PW3 Narhari also left and PW7Ravi, his father Sakharam sat there. 20 It is the version of PW7 Ravi that after about one hour he heard the noise of pelting stones and, therefore, he immediately closed the door from inside. Some persons were abusing and pelting stones towards his house. He identified voice 18 of accused no.1 Baburao Bhairat, who stated that, “our daughter expired and now we would kill Sakharam and burn the dead bodies together”. He also stated that accused no.4 Subhash, accused no.2 Nanabhau, accused no.7 Ashruba and accused no.6 Sandipan climbed on the tin sheet roof and removed some sheets and threw stones from the roof and the stone thrown by accused no.2 Nanabhau hit upon the head of his father and thereby he fell on the ground. He further stated that accused no.1 Baburao and accused no.3 Bankat and accused no.5 Bajirao broke open the door by throwing stones and all the said 7 accused persons entered into the house and assaulted his father by stones. Due to fear PW7 Ravi went out of the house and stood near water reservoir. 21 At this juncture, his paternal uncle PW3 Narhari came there and the assailants rushed towards him and thereupon he ran away. He also stated that his father was shouting that he should not be killed and he also shouted, “Aai Ga Melo” and after some time the said shouts were stopped. He further stated that accused no.2 Nanabhau and accused no.4 Subhash dragged his father out of the house by catching his legs and took him to the cemetery as well as the said assailants lifted his mother after wrapping one Chaddar on her dead body and collected fuel wood, 19 fodder, dry grass and prepared its heap and his parents were ablazed and thereafter left the said place. PW7 Ravi identified accused nos. 1 to 7 as the same culprits. 22 During cross-examination, PW7 Ravi stated that he had cordial relations with accused no.1 Baburao and he also made request to him not to assault his father. Nobody from village came there, because houses were closed. He also did not go to house of any of the villager. There were about 15 to 20 persons outside the house, but he did not request them to save his father. He also stated that when he saw his mother inside the house, he had no talk with her. He saw that his mother was burning and father was extinguishing the fire. He also admitted that he and his father did not take any steps for taking his mother to hospital. He further stated that he and his father only were sitting near the body of his mother for half an hour. He does not remember the exact time of arrival of the accused persons. He further stated that it did not happen that after departure of accused no.1 Baburao they bolted the door from inside and the said contents are marked portion ‘A’ in his police statement amounting to contradiction. 23 Learned defence counsel took out some improvements 20 in the testimony of PW7 Ravi amounting to omission in his police statement about climbing Nanabhau-accused no.2, Subhash- accused no.4, Ashruba-accused no.7 and Sandipan-accused no.6 on the roof and pelting