1 Criminal Appeal No.125 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.125 OF 2009 1. Nagnath S/o.Bapurao Sontakke, Age-22 years, Occu-Labourer, R/o.Khandegaon, Tq.Basmathnagar, Dist. Hingoli, 2. Vinod @ Narhari S/o.Bapurao Sontakke, Age-30 years, Occu-Labourer, R/o. As above. 3. Bapurao S/o.Narhari Sontakke, Age-65 years, Occu-Labourer, R/o. As above. APPELLANTS VERSUS The State of Maharashtra RESPONDENT WITH CRIMINAL APPEAL NO.461 OF 2008 The State of Maharashtra, Through Police Station, Basmath, Tal.Basmath, Dist. Hingoli APPELLANT VERSUS 1. Shantabai D/o. Bapurao Sontakke, Age-32 years, Occu-Household, R/o.Khandegaon, Tq.Basmath, Dist. Hingoli 2 Criminal Appeal No.125 of 2009 2. Chandrabhagabai alias Chandrakalabai W/o.Bapurao Sontakke, Age-50 years, Occu-Labourer, R/o.Khandegaon, Tq.Basmath Dist. Hingoli. RESPONDENTS Mr.S.P.Katneshwarkar, learned counsel for the appellants in first appeal and learned counsel for respondents in second appeal. Mr.B.V.Wagh, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 02/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Appellants in Cri.Appeal No.125/2009, who stand convicted for an offence punishable u/s. 302 r/w. 34 of IPC and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1,000/- each, i.d. to suffer further RI for one year in Sessions Case No. 15/2007 vide judgment and order dated 08/04/2008 by The Additional Sessions Judge, Basmathnagar have questioned the correctness and legality of the said judgment and order in this appeal. By the same judgment, the respondents in Criminal Appeal No.461/2008 were acquitted in the said session case. State has also questioned the correctness and legality of the acquittal of respondents in the said judgment and order in Criminal Appeal No. 461/2008. As both these appeals are arises out of the same judgment and order passed in Sessions Case No.15/2007, both these 3 Criminal Appeal No.125 of 2009 appeals are to be disposed of by way of common judgment. 2. Such of the facts as are necessary for the decision of these appeals can be summarized as follows : (a) Dnyanoba Shrirangrao Kokate was attached to Basmath Police Station in the month of November 2006. On 07/11/2006, PSI Vasudeo registered an offence vide CR No.217/2006 on the complaint of one Ranjan Nivrutti Dawane for the offence punishable u/s. 147, 148, 149, 302 of IPC against the appellants in first appeal and respondents in second appeal and also u/s. 25 of The Arms Act. Following to the registration of an offence, investigation was entrusted to him. During the investigation, he proceeded to village Khandegaon. He had visited the place of offence, where he noticed the dead body of Vinayak Dawane. Accordingly, he drew inquest panchnama of the dead body at Exh.53 in the presence of panch witnesses. Thereafter, he drew spot panchnama Exh.35 in the presence of panch witnesses. He had collected blood mixed and plain soil from the place of offence and seized under the said panchnama. Thereafter, the dead body of the deceased was sent for post mortem to Rural Hospital Basmath. (b) Dr.Prashant Mohanlal Somani (P.W.No.4) conducted autopsy on the dead body of deceased Vinayak Dawane. During the post mortem, he had noticed following external injuries on the dead body. 1) Stab wound at the base of neck in central part, just above the manubrium injury to Trachea and oesophagus (4 x 2 x 5 cm) 4 Criminal Appeal No.125 of 2009 2) Stab wound at the base of neck on right lateral side, just above the right clavicle (3 x 2 x 4 cm) 3) Stab wound on left side of sternum around 2 cm below and lateral to manubrium piercing lung (3 x 1 x 4 cm) 4) Stab wound on right side of chest around 1 cm lateral to manubrium 4 x 2 x 5 cm. piercing lung. 5) Abrasion on lateral to left side of eye ( 2 x 1 cm) 6) # on left hand at wrist joint. According to him, cause of death of Vinayak is due to multiple homicidal injuries due to hemorrhage shock. While conducting the post mortem, clothes on the person of the deceased were removed, and produced in the police station and were seized under the panchnama Exh.36. Appellant Bapurao was arrested on 08/11/2006. At the time of his arrest, clothes on his person were also seized under the panchnama Exh.43. On 10/11/2006, accused Bapurao made a disclosure statement in the presence of panch witnesses, leading to the recovery of one iron Katti concealed by him in Khandegaon Shiwar, situated at Basmath- Parbhani road under the bridge, which was seized under the seizure memorandum in the presence of panch witnesses (Exh.44). In due course, appellants Nagnath Bapurao and Vinod Bapurao were arrested on 24/11/2006 and 26/11/2006. At the time of arrest of accused Nagnath on 24/11/2006, he had produced his shirt in the presence of panch witnesses, which was seized under the panchnama (Exh.38). At the time of arrest of accused appellant 5 Criminal Appeal No.125 of 2009 Vinod, he also produced shirt on his person, which was seized under the panchnama Exh.39. on 28/11/2006, appellant Nagnath made disclosure statement in the presence of panch witnesses. At his instance, one knife was recovered from his house which was seized under the recovery panchnama (Exh.40). On 29/11/2006, appellant Vinod also made a disclosure statement in the presence of panch witnesses leading to the recovery of one knife concealed on the top of bathroom in his house, which was recovered in the presence of panch witnesses and seized under the panchnama Exh.41. On 07/12/2006, seized articles during the investigation were forwarded to CA alongwith covering letter. On 22/12/2006, Revenue Circle Inspector prepared the sketch of place of offence. In due course, CA reports Exh.57 and 58 were received. Then the investigation was handed over to PSI Sadegaonkar, who filed the charge sheet against the appellants in first appeal and respondents in second appeal in the Court of J.M.F.C.Basmath. After passing necessary committal order, J.M.F.C. Basmath committed the trial against the appellants in both the appeals to the Court of Additional Sessions Judge, Basmath. (c) Learned Additional Sessions Judge, Basmath framed charge against the appellants in first appeal and the respondents in second appeal vide Exh.5, to which the accused pleaded not guilty and claimed to be tried. 6 Criminal Appeal No.125 of 2009 (3) To substantiate the charge lavelled against the appellants in first appeal and respondents in second appeal, prosecution has examined in all 9 witnesses before the Trial Court including the complainant Ranjan Nivrutti Dawane brother of the deceased, who is also eye witness to the incident, Pundlik Nivrutti Dawane, another eye witness and the brother of the deceased, Dr.Ashok Dhondiba Mundhe, attached to Rural Hospital, Basmath, who had examined P.W.No.1 Ranjan and P.W.2 Pundlik, who also sustained injuries during the said incident and issued injury certificates Exh.28 and 29. Dr.Prakash Somani, Autopsy Surgeon, who conducted the post mortem on the dead body of the deceased, Baburao Shripat Dawane, panch witness to the spot panchnama (Exh.35) and also panch witness to the seizure of clothes of the deceased, Vijay Bapurao Dawane, panch witness to the seizure panchnama of clothes of appellant Nagnath, seizure panchnama of clothes of the appellant Vinod, panch witness to the memorandum statement of appellant Nagnath and Vinod, Narayan Baliram Kurwale, panch witness to the seizure of clothes on the person of appellant Bapurao (Exh.43). He has also acted as a panch witness to the memorandum statement of appellant Bapurao, leading to the recovery of katty at his instance under the recovery panchnama (Exh.44), Ashok Digambar, who carried muddemal property from Basmath Police Station to C.A.Aurangabad alongwith the covering letter and Dnyanoba Shripatrao Kokate, the Investigation Officer in this case. On appreciation of this evidence, learned Lower Court pleased to convict 7 Criminal Appeal No.125 of 2009 the appellants Nagnath Bapurao, Vinod Bapurao and Bapurao Narhari, the appellants in Criminal Appeal No.125/2009, for the offence punishable u/s. 302 r/w. 34 of The IPC, and pleased to acquit the respondents in Cri.Appeal No.461/2008, which judgment and order is impugned in the present appeal. 4. Before considering the submissions of learned counsels for the parties, it is necessary to advert to the evidence of the material witnesses recorded before the Trial Court. 5. It transpired from the evidence of Ranjan Nivrutti Dawane (P.W.No.1) that deceased Vinayak was his brother. The incident took place on 07/11/2006 at about 4.00 p.m. in the lane, situated in front of their house. At that time, he was present in his house alongwith his brother Pundlik (P.W.No.2), his wife Sakhubai, another brother Jagannath, father Nivrutti and wife of Vinayak i.e. Kamlabai. At the material time, Vinayak was coming from the field and on his way, appellants in Cri.Appeal No.125/2009 and respondents in Cri.Appeal No.461/2008, who are accused before the Trial Court, abused the deceased. The deceased narrated about the incident of abuse. At that time, accused came running to his house. They were armed with deadly weapons in their hand. Appellant Bapurao was holding Katti, while appellants Vinod and Nagnath were holding knives in their hands. As Vinayak saw that they were approaching towards him, he went in a lane situated in front of their house. At that time, 8 Criminal Appeal No.125 of 2009 accused no.4 and 5, i.e. respondents in Cri.Appeal No.461/2008 caught him. Thereafter the appellants in Cri.Appeal No.125/2009 assaulted him with the weapons in their hands. Appellant Vinod gave a knife blow on the leftside of his neck, and gave second blow of knife on the throat. Due to the said assault, Vinayak fall on the ground. Vinayak raised his left hand and requested them not to assault. At that time, appellant Bapurao gave katti blow on his hand and two katti blows on his chest. Due to the said blows, hand of Vinayak was cut. The muscles were just hanging. He and his brother Pundlik went to rescue the deceased. At that time, appellant Nagnath gave knife blow on the chest of Vinayak. Appellant Bapurao assaulted the complainant with the help of katti on his head. Appellant Bapurao also gave katti blow on the forehead of his brother Pundlik. Deceased had sustained bleeding injuries and he succumbed to injuries on the spot. Thereafter, appellants ran away from the spot. Then he went to the police station and lodged the complaint. He had identified the muddemal article Katti before the Court as the weapon used by the appellant Bapurao and identified the knives before the Court, as the weapons used by the appellants Nagnath and Vinod to assault deceased Vinayak. In his cross examination, witness Ranjan admitted that the profession of the appellant is of Barber. He denied that at the time of incident, an order of externment was in force against the deceased. He had also denied that the deceased was known as "Inkya Dada" in the Basmath Area. In his further cross examination, he has admitted that 9 Criminal Appeal No.125 of 2009 immediately after the incident, he had not given any information to the Village Police Patil. In his further cross-examination, he has stated that he reached in the police station around 4.45 p.m. He has admitted that due to assault on his head, there was trauma on his head. He has further stated that till his return to the village from police station, till that time, the dead body was on the spot. At the time of incident, accused persons were shouting when they were following the deceased. The incident was witnessed by some persons, who were gathered in the lane. He has stated in his further cross examination that appellant Bapurao gave katti blows on the chest of the deceased, after the deceased fall on the ground. Appellant Vinod gave knife blows on the throat of the deceased even after deceased fall on the ground. When the appellant Vinod assaulted the deceased, at that time the deceased was in standing position. Certain omissions are brought on record that deceased ran towards the lane after he saw the accused. Appellant no.3 gave katti blow on the forehead of brother Pundlik. On careful scrutiny of the evidence of complainant Ranjan Dawane, we do not find that his evidence was shakened anywhere about the assault at the hands of appellants in Criminal Appeal No.125/2009 and sustained multiple injuries on the neck, on the chest and on the hand of the deceased. At the same time, we do not find from his evidence that the respondents in Cri.Appeal No.461/2008 were armed with any deadly weapons or any active participation during the assault on the deceased by the appellants in Cri.Appeal No.125/2009. 10 Criminal Appeal No.125 of 2009 6. It has come in the evidence of P.W.No.2 Pundlik Dawane, another brother of the deceased Vinayak, who is also an injured eye witness to the incident that deceased Vinayak was his real brother. The incident took place on 07/11/2006 at about 4.00 p.m. in a lane in front of his house. At that time, he was present in his house alongwith his brother i.e. complainant Ranjan P.W.No.1, brother Jagdish, wife of deceased Kamlabai, his wife Shakuntala and their parents. At the time of incident, deceased came to house and informed them that 5 persons from Barber community are coming to beat him. Those persons followed deceased to his house and at that time they were abusing the deceased, He has specifically stated that appellant Nagnath and Vinod were holding knives in their hands, while appellant Bapurao was holding Katti in his hand. As the deceased saw them, he ran in the lane in front of his house, but the respondents in Cri.Appeal No.461/2008 caught him there. Thereafter, appellant Vinod gave knife blow on the left side of his neck as well as on the front side of his neck near the throat. Due to this assault, deceased fall on the ground. Deceased raised his left hand requesting the assailants not to beat him. At that time, appellant Bapurao gave katti blow on the left hand of the deceased, due to which his left hand was cut, but was remain in hanging position. The appellant Bapurao also gave 2 katti blows on the chest of the deceased. He alongwith his brother were trying to pacify the situation. At that time, appellant Nagnath gave knife blow on the chest of the deceased. Appellant Bapurao gave blow of handle of the 11 Criminal Appeal No.125 of 2009 katti on his forehead as well as on the head of complainant Ranjan. Respondents in Cri.Appeal No.461/2008 scuffled with Kamlabai and Sakhubai. Thereafter, appellants as well as respondents in the appeal filed by the State, ran away from the spot. Deceased expired on the spot. He identified the katti and knives before the Court, as the weapons used by the culprits while assaulting the deceased. In his cross examination, he has admitted that the incident took place in the eastern side lane of their house. Houses of Shamrao Khandare, Vilas Baburao and Sheshrao Dalwi are situated in the eastern lane. He has further admitted in his cross examination that on the date of incident, except the deceased, remaining family members were present in the house. It was a bazar day of Basmath and off day to their work. On that day, deceased had been to the field just to take a round. Their agricultural field is situated at the distance of 10 minutes walk from their residential house. In his further cross examination, he has stated that no case is pending against him in respect of theft of sandle wood neither any of his family member was arrested by the police in any case. He had also denied that at the time of incident, externment order was running against the deceased. He has further stated in his cross examination that deceased was outside the house, but near the door and when the appellants in Cri.Appeal.No. 125/2009 and respondents in Cri.Appeal No.461/2008 chased him, they were abusing him in loud voice. When the deceased was narrating about the abuse to the family members, all the family members came 12 Criminal Appeal No.125 of 2009 outside the house and went near the door. At that time, no outsider came there. He has further stated that even though he shouted for help, but nobody came there to help them. They attempted to save the deceased from the clutches of the appellants but not succeeded. It is specifically brought on record in the further cross examination of this witness that in the morning, deceased had assaulted appellant Vinod, as well as the appellants were abusing them. In his further cross examination, he has admitted that he has not stated in his police statement that the deceased told them that the 5 persons from Barber community were coming to beat him. Certain omissions are brought in his further cross examination that on hearing the noise, deceased came in the lane, in front of the house. He has not stated in his police statement that the 3rd appellant gave katty blows on the chest of the deceased. After the assault, all the assailants ran away from the spot. 7. We have heard learned counsel for the appellants followed by the submissions of learned APP in both the appeals. 8. During the course of submissions across the bar, it is tried to urge that even though the incident occurred in the broad day light at about 4.00 p.m., and in the lane in front of the house of the complainant and the injured witnesses, prosecution have not examined any independent witness in support of their case. It is also urged that as per the ocular evidence given by the P.W.No.1 13 Criminal Appeal No.125 of 2009 injured witness Ranjan and injured witness Pundlik that the incident of assault took place in the lane in front of their house. At the same time, the sketch map annexed with the panchnama of place of offence shows that the dead body was found lying at the eastern side lane from the house of the complainant. According to the learned counsel for appellants that no blood was found on the articles recovered at the instance of appellant no.1 and 2. No blood stains were found on the clothes of appellant no.1 and 2 which were seized and sent for chemical analysis to the CA. Considering this aspect, it is urged that the appeal filed by the convicted accused be allowed. As regards the State Appeal is concerned, it is urged that there is no iota of evidence against the respondents in Cri.Appeal No.461/2008. Hence prayed for dismissal of said appeal. 9. In the submissions across the bar, learned APP for respondents in Cri.Appeal No.125/2008 supports the finding recorded by the Trial Court. In Cri.Appeal No.461/2008, it is urged that the fact is transpired from the evidence of witness Ranjan and Kundlik that the role played by the respondents in the State Appeal clearly demonstrates that these respondents facilitate the appellants in Criminal Appeal No.125/2009 to assault the deceased. In the premise, prayed to allow the Cri.Appeal No.461/2008. 10. After careful scrutiny of these submissions advanced across the bar by both the sides and on re-appreciation of the evidence on 14 Criminal Appeal No.125 of 2009 record, first we have to take a note of the fact that the appellants in Cri.Appeal No.125/2009 and the respondents in Cri.Appeal No. 461/2008 are the residents of same village. They are knowing each other. In the premise, there is no possibility of mistaken identity about the identification of the assailants. Secondly, the incident occurred in the broad day light. Then, apart from the identification, the role played by the individual, which is transpired in the evidence of eye witnesses, nowhere shakened in their cross examination. The evidence given by witness Ranjan, the complainant and the eye witness Pundlik is further supported by the medical evidence. The medical evidence is two fold. Evidence of P.W.No.3 Dr.Ashok and the injury certificates issued by him at Exh.28 and 29 clearly demonstrats that Ranjan and Pundlik, eye witnesses who tried to rescue the deceased were examined at 9.20 p.m. on 07/11/2006 i.e. within a short time after the incident took place. It is but natural that initially the dead body of the deceased was taken to the hospital and then witness Ranjan and Pundlik were examined in the same hospital. The nature of the injuries found on their person is supported by their ocular evidence. The medical evidence about the assault given to the witnesses Ranjan and Kundlik is fully supported by the evidence of Dr.Prakash Somani, Autopsy Surgeon, who had conducted the post mortem on the dead body of deceased Vinayak. On the dead body of deceased Vinayak, 4 stab injuries were noticed, one abrasion is noticed on the left side eye and fracture is noticed on the wrist joint of his left hand. These injuries mentioned in coloumn 15 Criminal Appeal No.125 of 2009 no.17 are well-supported by the testimony of P.W.No.1 Ranjan and P.W.No.2 Pundlik. As the nature of the injuries found on the person of the deceased and the oral evidence of the eye witnesses Ranjan and Pundlik corroborate each other and not shakened in their cross examination, we have no hesitation in our mind to accept this evidence. At the same time, the clothes on the person of appellant no.3 were seized immediately after the incident dated 07/11/2006 on 08/11/2006. The blood group detected on the clothes found on the person of appellant no.3 and the blood group found on the weapon recovered at his instance is matching with the blood group of deceased which is an additional evidence, supporting the case of prosecution. As the clothes on the person of appellant no.1 and 2 were recovered after about 15 days, and the weapons recovered at their instance, were after about 20 days, then the possibility can not be rulled out of non presence of the blood on the clothes or on the weapons recovered at their instance. But that will not be the circumstance which would exclude them from the act of assault on their part on the deceased. Considering this aspect, even though the prosecution tried to project that appellants in Cri.Appeal No. 125/2009 and respondents in Cri.Appeal No.461/2008 who are the members of unlawful assembly was rightly discarded by the learned Lower Court as respondents in Cri.Appeal No.461/2008 admittedly were not armed with any weapon, then there is no question to consider that they were armed with deadly weapons. Apart from it, other than their presence, the statement that they caught the 16 Criminal Appeal No.125 of 2009 deceased, do not find confidence that they facilitate appellants in Cri.Appeal No.125/2009 to assault the deceased, resulted in his death. In the premise, learned Lower Court has rightly acquitted the respondents in Cri.Appeal No.461/2008 from all the charges. In view of this, the individual act and the intention of the assailants in Cri.Appeal No.125/2009 established beyond reasonable doubt, hence we are of the considered view that no interference is required in the judgment and order passed by the Court below in convicting the appellants in Cri.Appeal No.125/2009 for the offence punishable u/s. 302 r/w. 34 of The IPC and acquitting the respondents in Cri.Appeal No.461/2009 from all the charges lavelled against them. 11. In the substance, there are no merits in the appeal against conviction as well as the appeal against acquittal of respondents in Cri.Appeal No.461/2008. In the result, both the appeals failed and the judgment and order impugned in both these criminal appeals stand confirmed. We accordingly dismissed both these appeals. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appeal 125-09