1 APEAL936.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.936 OF 2003 1. Ratu @ Ratnakar Shamrao Kale, ) age/adult. ) 2. Satu @ Satish Shamrao Kale, ) age/adult. 3. Shankar Bhimrao Kale, ) age/adult. ) 4. Maruti Soma Shinde, age/adult, ) 5. Sahadeo Kerappa Kale, ) age/adult. ) 6. Dharma Nagnath Hake (Patil), ) age/adult. 7. Shamrao Bhayaji Kale, ) age/adult. ) 8. Tanaji Shamrao Kale, ) age/adult, ) All R/o. Daingadewadi, Tal/Mohol, ) District : Solapur. ): Appellants/ Orig. Accused V/s. The State of Maharashra. : Respondent .... Mrs.Sadhana S. Jadhav for the appellants. Mr.S.S.Pednekar, Addl. Public Prosecutor for the State. .... 2 APEAL936.03 WITH CRIMINAL APPEAL NO.89 OF 2004 The State of Maharashtra : Appellant (Orig. Complainant) V/s. Bhaiyaji Bhimrao Kale : Respondent (Orig.Accused No.4) ... Mr.S.S.Pednekar, Addl. Public Prosecutor for the appellant. Mrs.Sadhana S. Jadhav for the respondent. .... CORAM : D.D. SINHA & A.R. JOSHI, JJ. Date of Reserving ) : 08.09.2010. the Judgement. ) Date of Pronouncing ) : 24.09.2010. the Judgement. ) JUDGEMENT (Per D.D.Sinha, J.) Heard Mrs.Jadhav, the learned counsel for the appellants and Mr.Pednekar, the learned Addl. Public Prosecutor for the State. 2. Criminal Appeal No.936 of 2003 is directed against the judgement and order dated 15.7.2003 passed by the V Addl. Sessions Judge, Solapur, in Sessions Case no.257/2001 whereby the appellants came to be convicted for the offence punishable under section 302 read with section 149 of the Indian Penal Code and sentenced to suffer R.I. for life and 3 APEAL936.03 were also directed to pay a fine of Rs.500/- each, in default to suffer S.I. for one month. Criminal Appeal No.89 of 2004 has been filed by the State challenging the acquittal of original accused no.4 which has been admitted and ordered to be heard along with Criminal Appeal No.936 of 2003. As both these appeals arise out of the same incident, they were head together and are being disposed of by this common judgement. 3. The prosecution case in a nut-shell is as follows:- The complainant Dadarao Machindra Shinde (P.W.1) and the appellants are residents of village Daingadewadi, taluka Mohol, dist. Solapur. P.W.1 is the son of Tarabai (P.W.5). Deceased Murlidhar was the real uncle of P.W.1 and brother-in-law of P.W.5. Original accused no. 8 Shamrao Bhayaji Kale has three sons Ratu, Satu and Tanaji. They were original accused nos.1, 2 9. Original accused no.3 Shankar and original accused no.4 Bhaiyaji, who has been acquitted and against whom Criminal Appeal No.89 of 2004 has been preferred by the State challenging his acquittal, are real brothers. Original accused no.7 Dharma is the grand-son of accused Shamrao. Original accused no.5 Maruti was working with Shamrao Kale at the relevant time. All the accused are related to each other. 4 APEAL936.03 4. It is the case of the prosecution that the complainant Dadarao was residing along with his parents and brother at village Daingadewadi. At the time of the incident, he was studying in Standard XI. The complainant’s father owned five acres of land in village Daingadewadi. Deceased Murlidhar Keru Shinde was the real uncle of P.W.1 Dadarao and was residing separately. Soma Keru Shinde is the step uncle of P.W.1 and was also residing separately. It was alleged by the prosecution that partition had taken place in between the father of the complainant and his uncle in respect of the agricultural land and two-and-a-half acres of land came to the share of the father of the complainant. The deceased was the step uncle of P.W.1 and the land which came to his share was in possession of Soma Shinde, who was cultivating the said land at the relevant time. 5. It is the case of the prosecution that the motive behind the commission of the offence was that when the land was jointly owned by all the members of the joint family was irrigated land and water was drawn from the nearby river through a pipeline. Hanmant was the Manager of the Joint Hindu Family. Hanmant had obtained loan and installed electric motor pump and pipeline for drawing water from the river. The deceased was collecting amount from the father of the complainant, real uncle, step-uncle for paying the instalments of the loan 5 APEAL936.03 obtained from the Bank for installation of electric motor pump and pipeline. The father of the complainant was also paying some amount to the deceased. It is the case of the prosecution that the accused restrained the complainant from taking water. Hence, a dispute arose in between the accused and the complainant. A complaint was also lodged at the police station on an earlier occasion. Maruti Shinde, Ratu Kale and Hake Patil assaulted the father of the complainant and his cousin Sidheshwar on an earlier occasion. A case was registered against them at the police station. Preventive action against the accused was initiated by the competent authority. The case of the prosecution demonstrates that the relations between the family of the accused and the deceased and his family were inimical. 6. The incident in question had taken place on 18.7.2001 at about 10.15 to 10.30 a.m. It is the case of the prosecution that P.W.5 Tarabai, the mother of the complainant was fetching water from the hand-pump. After sometime, the she made hue and cry and started proceeding towards the wasti of the complainant. The complainant came out of his house, at that time Tarabai was proceeding towards the house of deceased Murlidhar and was shouting loudly that the accused Ratu Kale, Satu Kale, Shankar Kale, Bhaiyaji Kale, Maruti Shinde, Sahadeo Kale and Dharma Hake were assaulting Murlidhar with swords. P.W.5 Tarabai was 6 APEAL936.03 proceeding towards the house of Murlidhar by the side of the hill. The complainant went upto the hill and saw that the accused Ratu, Satu, Shankar, Bhaiyaji, Maruti, Sahadeo and Dharma were assaulting Murlidhar with swords which were in their hands. The complainant requested them not to assault his uncle but the assailants rushed towards him and also assaulted the complainant with swords. It is the case of the prosecution that one Bajarang who was grazing the cattle had also seen the incident from an open space. The accused gave blows with the swords on the knees, hands and legs of deceased Murlidhar. The accused Shamrao was standing near the spot of the incident, having stick in his hand and he was also instigating the accused to assault Murlidhar. Bajarang also tried to intervene in order to pacify the situation, however, accused Satu, Maruti and Bhaiyaji rushed towards him and threatened him. Therefore, he did not intervene and came back. It is the case of the prosecution that when the assault was going on, accused no.9 Tanaji and police constable came to the spot of the incident. The accused Tanaji took a sword from the hand of the accused Ratu and starting giving blows with the said sword on the right knee of the deceased Murlidhar. The complainant requested not to assault his uncle. However, the accused did not pay any heed to the request made by the complainant. It is the case of the prosecution that the complainant, thereafter, proceeded towards the house of the Sarpanch and on the way narrated the incident to the wife of 7 APEAL936.03 the Sarpanch. The Sarpanch advised the complainant to lodge a complaint at the police station. The complainant went to Mohol police station and lodged a complaint against the accused. 7. On receipt of the complaint, Police Inspector went to the spot of the incident, prepared spot panchanama, inquest panchanama, seized the clothes of the deceased, recorded statements of witnesses, arrested the accused, seized clothes of the accused Bhaiyaji, Ratu, Dharma and Satu. The Investigating Officer also seized one towel, one pair of chapel and collected soil mixed with blood, one white cap, one stone having bloodstains from the spot of the incident, sealed the articles in the presence of the panchas and prepared panchanama. At the instance of the accused Sahadeo, the Investigating Officer has seized one sword having bloodstains, one shirt and one brownish pant. At the instance of the accused Maruti, the Investigating Officer seized one sword, one white tericot shirt and one pyjama and prepared panchanama. The Investigating Officer recorded memorandum statement of Shankar and at his instance one sickle was discovered. The Investigating Officer also recorded the statement of the accused Ratu and pursuant to which sattur (chopper) was recovered. A motorcycle (bullet) was also seized by the Investigating Officer. The dead-body of the deceased Murlidhar was sent to the Rural Hospital for post-mortem examination. The post-mortem report shows 8 APEAL936.03 that the deceased received as many as 19 injuries, most of which were incised wounds. The Investigating Officer on completion of the investigation filed a charge-sheet. The charge was framed against the appellants which was explained to them by the Court. All the accused pleaded not guilty and claimed to tried and their defence was of total denial, except accused no.4 who has taken the defence of alibi. 8. The learned counsel for the appellants has submitted that the case of the prosecution is that on 18.7.2001 at about 10.15 to 10.30 a.m., Dadaro heard the shouts of his mother who was saying that his uncle was being assaulted by the accused Ratu Kale, Satu Kale, Shankar Kale, Bhaiyaji Kale, Maruri Shinde, Sahadeo Kale and Dharma Hake and, therefore, P.W.1 proceeded to the spot where his uncle was being assaulted. It is submitted that according to Tarabai (P.W.5), she has seen the accused persons encircled deceased Murlidhar while assaulting him, however, failed to mention this fact in her police statement and, therefore, it is contended that this material omission creates suspicion about the genuineness of the prosecution case disclosed by this witness in respect of the alleged assault on the deceased by the appellants. 9. The learned counsel for the appellants has submitted that the incident, for the first time, was alleged to have been noticed by Tarabai 9 APEAL936.03 (P.W.5), who has named only six persons as the assailants, whereas according to P.W.1, there were seven accused who assaulted the deceased. In the instant case, trial Court accepted the plea of alibi taken by the original accused no.4 and the trial Court acquitted him. The inconsistent version given by the witness about the number of the accused who assaulted the deceased clearly shows the tendency of witnesses of false implication and, therefore, their evidence needs to be scrutinised with due care and caution. 10. The learned counsel for the appellants has submitted that according to Tarabai (P.W.5), the accused were assaulting Murlidhar behind the house of Bhayyaji Vhanmane. However, she has not stated the said fact in her statement under section 161 of the Cr.P.C. It is contended that the said omission was a material omission which was proved by the defence. It is contended that another important omission in the testimony of P.W.5 is in respect of giving of information about the incident by P.W.5 to her son that the group of Kale family was assaulting his uncle. It is contended that these material omissions render the testimony of this witness suspicious and untrustworthy. 11. The counsel for the appellants has contended that the original accused no.9 was not present in the village and, therefore, he was not a 10 APEAL936.03 member of the unlawful assembly. The rule attributed to the original accused no.9 is a false and concocted story introduced by the prosecution. It is contended that the deceased was a history sheeter and the possibility of being assaulted by his rivals from the village cannot be ruled out. 12. The learned counsel for the appellants further submitted that according to P.W.1, the dead body was lying on the ascent of the hill, however, the spot, as per the prosecution, was behind the house of Bhayyaji. There is nothing on record to show as to how the dead-body of the deceased was found on the ascent of the hill. There is no evidence to show that the dead-body was dragged from the place of the incident. It is contended that the spot panchanama shows that the cap stained with blood was seen hanging on a tree at a distance of 18 feet from the spot where the dead body was lying. However, there is no ocular evidence to corroborate this circumstance that the deceased was assaulted on the way. In any eventuality, if the assault would have been made at the place as claimed by the prosecution, the deceased would have collapsed on the said spot itself and blood ought to have been found on the same spot. It is submitted that at the distance of 20 feet from where the dead body was found, a towel belonging to the deceased was hanging on a babul tree. It is contended that the spot panchanama has been proved by P.W.4 which shows that the house of the complainant was at a long distance from the 11 APEAL936.03 spot of the incident. P.W.4 has admitted that the spot of the incident was at the bottom of the hill. It is submitted that the case of the prosecution insofar as the spot of the incident is concerned, there are conflicting versions forthcoming which also create doubt whether the sole eye- witness examined in the present case had really witnessed the incident as claimed by her, in any case, which creates doubt about the case of the prosecution. 13. The learned counsel for the appellants has submitted that the post- mortem notes shows that rigor mortis was set in, hence the deceased may have taken meals three hours prior to his death as there was partly digested food particles in the stomach and small intestine and that the large intestine was empty as the deceased might have passed stool before death, and it requires 10 to 12 hours for formation of stool from the time of taking food. The counsel for the appellants, therefore, contended that the prosecution has not established the time of death of the deceased. It is submitted that the prosecution has to prove the time of death which cannot be presumed. It is further submitted that the Doctor who conducted the post-mortem examination could not give the probable time of death of the deceased and, therefore, in the instant case, the prosecution failed to establish the time of death of the deceased. It is submitted that in the instant case, the time of the incident as well as the time of death of the 12 APEAL936.03 deceased mentioned in the substantive evidence of the prosecution does not tally with the postmortem notes which clearly demonstrates that the prosecution has failed to prove at what point of time Murlidhar died. The tenor of the medical evidence would show that the deceased had died a homicidal death in the early hours on 18.7.2001 and the dead body was noticed at about 10.00 a.m. and, therefore, the entire prosecution case is fabricated, untrustworthy and, therefore, cannot be believed. 14. The learned counsel for the appellants placed reliance on the decision of the apex Court in the case of Gambhir v. State of Maharashtra (AIR 1982 S.C. 1157) and Bhagwandas v. State of Haryana (AIR 1996 SC 2928). The learned counsel for the appellants further contended that it is the case of the prosecution that all the accused persons were armed with lethal weapons. However, the discovery was of only four weapons i.e. sattur at the instance of the accused no.1, sickle at the instance of the accused no.3, sword at the instance of the accused no.5 and another sword at the instance of original accused no.6. It is contended that blood which was found on sattur and sickle was of the same blood group which was of the deceased and these weapons were recovered at the instance of the original accused nos.3 and 1, respectively. It is contended that the deceased also suffered fracture which would show that sword was not the only weapon which was used and the case of the 13 APEAL936.03 prosecution does not attribute use of any other weapon than sword in the alleged assault which also creates doubt about the version of the eye- witnesses. 15. The learned counsel or the appellants alternatively contended that the evidence of the prosecution, even if accepted, would prove the offence punishable under section 302 read with 34 of the I.P.C. only respect of the original accused nos.1 & 3 and the order of conviction in respect of the other accused deserves to be set aside. 16. The learned Addl. Public Prosecutor has submitted that in the present case, though the prosecution has examined a number of witnesses, the material evidence is that of P.Ws.1, 2 and 5. It is submitted that P.Ws. 1, 2 and 5 are eye-witnesses and their evidence is corroborated by the medical evidence of Dr.Meena Mundada (P.W.8). It is further submitted that the evidence of P.Ws.1, 2 and 5 is also corroborated by other circumstantial evidence such as spot panchanama proved by Manik (P.W. 4). The evidence of P.W.4 shows that the spot of the incident was on the slope of the hill behind the house of Bhayyaji. The evidence of the panch is corroborated by the evidence of P.W.3, the panch witness examined by the prosecution for proving the inquest panchanama. The Addl. Public Prosecutor has submitted that the evidence of Dadarao is cogent and 14 APEAL936.03 reliable. He was present at the time of the incident and saw that the accused Ratu Kale, Satu Kale, Shankar Kale, Bhaiyaji Kale, Maruti Shinde, Sahadeo Kale and Dharma Hake were assaulting Murlidhar by swords and inflicted injuries on his shoulder, both the wrists and knees. The complainant saw the incident from 30 feet and immediately thereafter went to the police station and narrated the incident to the police. This witness has given the names of all the assailants to the police. 17. The learned Addl. Public Prosecutor has further contended that the fact of the deceased dying a homicidal death has not been challenged by the defence. The prosecution has examined Dr.Meena Mundada (P.W. 8) who has performed the post-mortem examination on the dead body of Murlidhar and noticed injuries mentioned in paragraphs 17 and 19 of the post-mortem notes and opined that all the injuries were anti-mortem. The Doctor has opined that the cause of death was “due to hemorrhagic shock due to head injury and multiple fractures of bones”. The Medical Officer has also opined that the injuries on the person of the deceased can be caused by sharp edged weapons. The Doctor gave her opinion that all the injuries cumulatively were sufficient in the ordinary course of nature to cause death of Murlidhar. The Medical Officer has also expressed that the injuries sustained by Murlidhar are possible by swords (articles 27 and 30). 15 APEAL936.03 18. The learned Addl. Public Prosecutor has contended that the prosecution in the present case has relied upon the direct evidence of P.Ws.1, 2 and 5 as well as the circumstantial evidence i.e. post-mortem notes, opinion of the Medical Officer, inquest panchanama (exh.28), spot panchanama (exh.30) and recovery panchanama. It is submitted that though the panch witness in respect of arrest panchanama and seizure of the clothes of the accused turned hostile, the recovery panchanama and arrest panchanama of the accused are duly proved by the Investigating Officer P.W.12 Mr.Sawant. 19. The learned Addl. Public Prosecutor further submitted that the accused no.1 was working in S.R.P. Office and was absent from duty on the date of the incident. In order to prove the said fact, the prosecution has examined P.W.9 Namdhari (A.S.I.), who has stated that the accused Ratu alias Ratnakar Kale was absent from duty from 25.12.2000. 20. The learned Addl. Public Prosecutor has further contended that all the accused are related to each other, including the deceased Murlidhar and the prosecution evidence on record would show that relations between them were not cordial. On the other hand, the complaints were lodged against each other in the past. It is contended that in the instant 16 APEAL936.03 case, the complainant has mentioned the names of the appellants in the First Information Report which was lodged almost immediately after the incident. 21. The learned Addl. Public Prosecutor has contended that P.W.1 Dadarao Shinde, P.W.2 Bajarang and P.W.5 Tarabai are related to the deceased, however, their testimony cannot be branded as testimony of interested witnesses only on the ground of relationship. It is submitted that the testimony of these witnesses is free from material omission and contradiction and inspires confidence. It is submitted that their evidence is also corroborated by the medical evidence as well as other circumstances brought on record by the prosecution and, therefore, the evidence of these witnesses is trustworthy. It is contended that the contention canvassed that the complainant is a chance witness is unfounded. The complainant has admitted before the Court that at the relevant time, he was studying in Standard XI and the time of his College was from 7.30 to 11.30 a.m. He has also admitted that on the date of the incident, he has attended his College, however, he attended only one lecture and left the College early on that date. It is pertinent to note that the presence of the complainant on the spot has been mentioned by P.W.2 and P.W.5. 17 APEAL936.03 22. The learned Addl. Public Prosecutor has further submitted that the contention canvassed by the defence that Murlidhar may have died in the night of 17.7.2001 and the prosecution failed to establish the time of death of the deceased, it is contended that in India, rigor mortis starts within two/three hours after the death and the factors which influence rigor mortis are the age and condition of the body, mode of the persons before death, surroundings, considerable seasonal variations in the time of on set and duration of rigor mortis. It is submitted that heat coagulates and albuminous materials of the muscles and causes stiffening and contraction to a greater degree than that seen in rigor mortis. The speed of on set of rigor mortis is very variable and depends upon a number of factors. It is submitted that on set of rigor mortis throughout the body would vary depending on the above referred factors, however, usually it takes 12 to 24 hours. It is submitted that in warm climate of India, rigor mortis may commence in an hour or two and begins to disappear within 18 to 24 hours. With such great variation in respect of on set and duration of rigor mortis, it is not possible to pin point the exact time of death, though the time of death will have to be considered, based on these factors by the Medical Officer. 23. The learned Addl. Public Prosecutor further contended that apart from the temperature of environment, the speed of on set of rigor mortis 18 APEAL936.03 is affected by the mode of dead before his/her death. Where violent activity has taken place immediately before death, rigor mortis comes on rapidly. The learned Addl. Public Prosecutor submitted that in the instant case, the Medical Officer has opined that there as an attempt on the part of the deceased to save himself and, therefore, in a case of assault and if the deceased was under emotional stress prior to death, the rigor mortis could start immediately and it may be well marked within six hours after the death. The Medical Officer has also opined that if the patient was in emotional stress, the rigor mortis may start within six hours after the death. It is submitted that taking into consideration the various factors, the opinion of the Medical Officer corroborates the time of death of the deceased proved by the prosecution. It is contended that there was blood on the clothes of the accused which were seized by the police vide panchanama (exh.61 to 64).