drp {1} Cri. Appeal No.332/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.332 OF 2009 1. Ginaji @ Gnyandeo Haribhau Bhalerao APPELLANTS Age-40 years, Occ-Agriculture R/o Pohandul, Tq-Gangakhed, Dist-Parbhani 2. Amruta Limbaji Jadhav, Age-45 years, Occ-Agriculture R/o Pohandul, Tq-Gangakhed, Dist-Parbhani 3. Rama Balaram Kar Age-40 years, Occ-Agriculture R/o Pohandul, Tq-Gangakhed, Dist-Parbhani VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Sonpeth Police Station, Parbhani ....... Mr.R.N.Dhorde h/f Mr.V.R.Dhorde, Advocate for appellants Mr.D.V.Tele, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 13th January 2011 drp {2} Cri. Appeal No.332/2009 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By the present criminal appeal, the appellants have questioned the correctness and legality of the judgment dated 29.06.2009 passed in Sessions Case No. (Old 18/1998) 05/2004 by Additional Sessions Judge, Gangakhed thereby convicting the appellants for an offence punishable u/s 148 and 302 r/w 149 of the Indian Penal Code and sentencing them to suffer RI for 3 months and imprisonment for life, respectively. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be status thus - a) Sopan Bhaurao Mohite (PW-11), Station Duty Officer Sonpeth Police Station, had received a telephonic message from API Munde, Gangakhed police station at 00.05 hours on 08.11.1995, that one Vishwanath Jadhav had informed about murder of his brother Amruta. Accordingly, entry at serial No.2 was taken in the station diary. At about 2.30 a.m. another message was received from the office of Superintendent of Police, Parbhani that they were referring said Vishwanth to Sonpeth police station to lodge complaint about murder of his brother. Entry to that effect was taken in the station diary at serial No.5. Thereafter PSI Kamble, along with his staff proceeded to the spot and returned back at about 5.50 a.m. after deputing police drp {3} Cri. Appeal No.332/2009 staff at the spot. b) On 08.11.1995, at 6.00 a.m. Vishwanath Jadhav (PW-4) lodged a report (Exhibit-87) in Sonpeth police station, on the basis of which Crime No.107/1995 was registered against the accused persons for an offence punishable u/s 302 r/w 34 r/w 120 B of the Indian Penal Code. Investigation of the said offence was entrusted to PSI Shivaji Kamble (PW-13). c) During the investigation PW-13 PSI Kamble visited the spot, pointed out by PW-4 Vishwanath, behind the house of Shaikh Husain. Spot Panchanama (Exhibit-39) was drawn in presence of Pancha witnesses. Dead body of a male was lying there, which was identified by PW-4 Vishwanath as the dead body of his brother Amruta. Blood mixed soil and plain soil was seized form the spot and Inquest Panchanama (Exhibit-38) was drawn at the spot itself. Thereafter the dead body was referred for Postmortem, to Rural Hospital Gangakhed. d) Dr.Ramgopal Biyani (PW-1), Medical Officer, conducted the Postmortem on 08.11.1995 between 4.45 p.m. and 6.00 p.m. During the Postmortem, following injuries were noticed on the dead body: drp {4} Cri. Appeal No.332/2009 1. Incised wound 4x1x ¼ cm over occipital parietal joint. Right side oblique. 2. Incised wound 4x1x ¼ cm over right knee upper and lateral side oblique. 3. Incised wound with fracture of right clavicle 13X6X3 cms over right shoulder superior surface oblique lateral end of clavicle was cut. 4. Incised wound 10X4x2 ½ cm over right supra scapular region verticle inner side and more deep at upper part. 5. Incised wound 15X8X5 cms over right side of the neck, horizontal 2 cms from mid line and 1 cms behind lower end of right ear. Mandible was cut teeth are shaky, soft tissues, blood vessels and muscle fibers are cut. And wound was open in to throact. 6. Incised wound 8x2x1 cm over right upper arm, lower 1/3rd oblique backside. 7. Incised wound 5x1x ½ cm over middle 1/3rd of right upper arms lateral side. 8. Incised wound 7x2 ½ x ½ cm over upper arm upper 1/3rd front side verticle. 9. Incised wound 10x5x3 cm over left shoulder joint verticle joint capula is torn bone is dislocated and cracked. 10.Incised wound 6x2 cms 3 1 cm over left Lumba drp {5} Cri. Appeal No.332/2009 region back side oblique. 11.Contusion 3x1 cm over right thoraxic region back side horizontal. 12.Abrasion 15 X ½ cm over back crossing mid line at Lumbar third vertibra horizontal. 13.Contusion 7X1 ½ cms over left supra scapular region verticle lateral side. 14.Abrasion 10 X ½ cm over left infra scapular region oblique. 15.Abrasion 10 X ½ cm over back and right leg at calf, verticle. Medical officer has opined that injuries No.1 to 10 can be caused by sharp cutting object whereas injuries No.11 to 15 can be caused by hard and blunt object. According to the Medical Officer, injury No.1 along with corresponding injury is danger to the life and collectively the injuries are sufficient to cause death, in ordinary course. The probable cause of death, according to the medical officer, is due to hemorrhagic shock due to cutting of big blood vessel of the right side neck. Accordingly, PM report (Exhibit-41) was prepared. The Medical Officer has further opined that the death of Amruta might have been caused within 6 hours after intake of last meal and the death might have been occurred within 24 hours of the examination of the dead body. The age of all the surface injuries, according to the drp {6} Cri. Appeal No.332/2009 Medical Officer, was 24 hours of examination of the dead body. e) During the further investigation, search of the houses of the accused persons was taken on 08.11.1995 and some of the accused were arrested on 08.11.1995 whereas some of them were arrested on 09.11.1995. On 08.11.1995 itself statements of certain witnesses were recorded by the police. The clothes, removed from the dead body, were seized under Panchamana (Exhibit-95). f) On 11.11.1995, accused Bhagwan made voluntary disclosure statement, which resulted in recovery of sickle, which was seized under Panchanama (Exhibit-107). On 12.11.1995, while in custody, appellants Ginaji and Amruta and accused Chandrabhan made voluntary statements in presence of Pancha witnesses, which resulted in recovery of axe at the instance of appellant Ginaji from his house, which was seized under Panchanama (Exhibit-115), one iron rod from the house of appellant No.2, which was seized under Panchanama (Exhibit-117) and one stick, at the instance of accused Chandrabhan, which was seized under Panchanama (Exhibit-116). Thereafter, accused Sayed Hussain, made disclosure statement (Exhibit-154), which resulted into recovery of axe from his house, which was seized under drp {7} Cri. Appeal No.332/2009 Panchanama (Exhibit-155). Thereafter, statements of some more witnesses were recorded by the police and the seized weapons were sent to Medical Officer for his opinion, which was given by the Medical Officer vide Exhibit-43. The seized property was thereafter, forwarded to CA along with covering letter (Exhibit-119) and as the investigating officer was transferred the investigation of the said crime was handed over to PW-12 Mendke. g) PW-12 Mendke recorded statements of certain more witnesses and addressed a request letter to Tahsildar for preparing a sketch map of the place of offence. After receipt of the CA report and on completion of the investigation, charge sheet was filed before the JMFC, Gangakhed, who, after passing the necessary committal order, committed the trial to the Court of Sessions, Parbhani. It appears that initially the case was numbered as Sessions Case No.18/1998, however after ADJ Court was established at Gangakhed, the case was transferred from Parbhani to Gangakhed and was renumbered as Sessions Case No.05/2004. h) It appears that the trial Court framed charge against all the accused at Exhibit-9 for an offence punishable u/s 148 and 302 r/w 149 of the Indian Penal Code. All the accused pleaded not guilty to the said charge and claimed drp {8} Cri. Appeal No.332/2009 to be tried. Record shows that the prosecution, to substantiate the charges against all the accused, had examined in all 13 witnesses, including Dr.Ramgopal Biyani-Medical Officer who had conducted the Postmortem; two alleged eye witnesses Vishwanath Jadhav (Complainant) brother of the deceased and Satyabhama- wife of the deceased; 4 Pancha witnesses; one circle inspector; two carriers who had carried the seized property to the office of CA; Sopan Mohite, who had received messages from Gangakhed police station and from SP office Parbhani on 08.11.1995 and both the investigating officers. i) It appears that before the trial was committed to the Court of Sessions, Sayyed Husain had expired and accused Bhagwan Dagdoba Kar expired during the pendency of the trail. j) The trial Court, upon appreciation of the evidence of the prosecution witnesses, convicted the appellants accordingly whereas acquitted original accused No.4, 5, 8,9 and 10. Defence of the appellants was of total denial. According to the appellants, they were implicated by the complainant due to the political rivalry. The said judgment of conviction is impugned in the present criminal appeal. drp {9} Cri. Appeal No.332/2009 k) Admittedly, the State has not filed any appeal against the acquittal of other accused. 3. Before we embark upon the rival submissions, we feel it necessary to advert to the evidence of material witnesses, examined by the prosecution before the trial court. 4. Evidence of Dr.Biyani (PW-1) in respect of cause of death of Amruta is not seriously disputed by the appellants. It is also not seriously disputed by the appellants that Amruta die homicidal death. However, according to the appellants, they are not the authors of the injuries found on the person of Amruta, which resulted in his homicidal death. In short, they have denied that they are responsible for the death of Amruta. 5. It is in the evidence of PW-4 Vishwanath Jadhav (Complainant), who is brother of the deceased, that at the time of the said incident, he and his brothers were residing at Pohandul, Tq-Gangakhed. On 07.11.1995, at about 10.00 p.m. accused Sayed Hussain (Expired), came and informed Amruta (deceased) that Bhaskar (accused No.9) and Ginaji (appellant No.1) had called him. Accordingly, Amruta (deceased) accompanied Hussain. They went towards Maruti temple, where the appellants and other accused were present. They asked Amruta (deceased) that his behaviour towards the villagers is arrogant and was causing nuisance and harassment to the villagers. Thereafter, Amruta (deceased) ran drp {10} Cri. Appeal No.332/2009 towards the house of Hasan Lala, however, he was chased by the appellants and other accused. They were shouting to catch Amruta and beat him. On hearing the shouts, he and Satyabhama (wife of deceased Amruta) rushed towards Gadhi and saw that accused Bhagwan was holding sickle in his hand while appellant No.1 Ginaji was holding axe, accused Hussain was holding axe, appellant Amruta was holding iron rod, appellant Rama was holding kutti and the remaining accused were escorting them. Appellants and other accused assaulted Amruta (deceased) with the weapons in their hands. Thereafter Amruta (deceased) fell down and on seeing that the appellants and other accused flee from the spot. He and Satyabhama (PW-5) rushed towards Amruta and saw that he was lying in a pool of blood and he was dead. Amruta (deceased) had sustained severe injuries on his hands, neck and on other parts of the body. In the moon and street light, they identified the assailants. He has further stated that thereafter he went to Gaundgaon to inform about the incident to his brother in law Balasaheb. Thereafter both of them went to Gangakhed and informed to his another brother Balasaheb and thereafter all of them went to Gangakhed police station at about 11.30 p.m. They informed PSO Munde, who in turn had passed on the message to Sonpeth police station and advised them to lodge a report in Sonpeth police station. They hired a jeep and proceeded to Sonpeth via Mahadpuri and at Pohandul Phata, they noticed the number of people had gathered on the road going to Pohandul and, hence they went to Parbhani and contacted police control room and drp {11} Cri. Appeal No.332/2009 informed them about the murder of Amruta. Thereafter the police control room also passed on a message to Sonpeth police station and they were directed to lodge a complaint at Sonpeth police station. They were provided a police van in which they went to Sonpeth Police station. From Gangakhed, one Circle Inspector Chaudhari (PW-2) accompanied them. They reached at Sonpeth police station around 6.00 a.m. where he lodged a complaint (Exhibit-87). He had identified the accused in the Court as assailants who had committed murder of his brother Amruta. He has also identified clothes of the deceased and the weapons used by the assailants during the assault. His further statement was recored on the next day. This witness was cross examined at length. In his marathon cross examination he has admitted certain things, which are, that his brother was Chief of Shiv Sena party since last 4 years prior to the incident. Accused Bhaskar, accused Hiraji and wife of accused Chandrabhan had contested the Gram Panchayat election against the candidates supported by deceased Amruta. The candidates, who were supported by his deceased brother had lost the election. Thus, he has admitted that there was political rivalry between deceased Amruta and the group of the appellants and other accused. Prior to the election of Sarpanch, deceased Amruta used to collect money from the transporters of sand, which was stopped by Sarpanch. Criminal cases were pending against him, Amruta (deceased) and another brother under NDPS Act in which they drp {12} Cri. Appeal No.332/2009 were convicted, which was also confirmed in the High Court. Soon before the incident, Amruta (deceased) was arrested pursuant to the complaint lodged by accused Khiraji under Atrocities Act and counter cases were filed by Amruta (deceased) against appellants and others in which they were acquitted. He has also admitted that they were convicted in the complaint lodged by accused Bhaskar for attempt to kill him and they had also undergone imprisonment for the said offence. Distance between Pohandul and Gaundgaon is 1 km whereas distance between Gaundgaon and Gangakhed is 18 km and distance between Pohandul and Sonpeth is 25 km. He has also admitted that Maruti temple is situated at the distance of 25 feet from his house and is surrounded by houses. There is no open space between the temple and the village. There were no roads in the village, however there are small lanes. House of Hasan Lala is situated in one of the small lanes, which was surrounded by number of houses out of which some are two storied having compound walls. He had neither given call to anybody nor had anybody came out to help, from the adjacent houses. Even after the incident was over, nobody had came at the spot to see as to what had happened. Relations between accused Hussain (expired) and deceased Amruta were cordial, though accused Hussain (expired) had supported the opposite party. Though the conversation between the assailants and his brother was audible to him, yet neither he nor anybody from his family went near Amruta to pacify the quarrel. Weapons used by the accused were not visible. When his brother ran towards Maruti temple, they did not drp {13} Cri. Appeal No.332/2009 follow him nor gave call to anybody for help. Even he had not raised any alarm. In clear words, he has admitted that before proceeding to Gaundgaon, he had not informed the incident to village Police Patil or any other villager from Pohandul. After he and Satyabhama reached at the spot, they did not touch the body of Amruta to ascertain whether he was dead of alive. They did not even carry Amruta to hospital, as according to him when they reached near him, Amruta was already dead. He had not called the villagers even to shift the dead body from the spot. He has admitted that at the relevant time, Police Patil was present in the village. He has also admitted that even motor cycles were also available in the village, however he had not asked help from anybody to provide motorcycle to go to Gaundgaon or Gangakhed. He preferred to walk from Pohandul to Gaundgaon and from Gaundgaon to Gangakhed. Even after the incident, they did not even try to chase the assailants. According to him, he and Satyabhama had witnessed the entire incident from the Gadhi and from Gadhi itself directly he went to Gaundgaon and returned to Pohandul only on the next day morning. According to him till that time police had not reached Pohandul. Dead body of Amruta was lying at the spot till the police arrived. He had not touched the dead body of Amruta even after he reached near Amruta after the assailants had ran away from the spot. As his brother was at Gangakhed, he went to Gangakhed instead of going to Sonpeth. Within about 75 minutes they walked for about 12 to 13 km from Gaundgaon to Gangakhed via Mahadpuri. Though Police Officer drp {14} Cri. Appeal No.332/2009 Munde was present in Gangakhed police station, yet he has not narrated the entire incident to him. He had only informed that his brother Amruta was murdered. He has admitted that they were in Gangakhed police station for about 10 minutes. He has categorically admitted that he was not knowing the name of owner or driver of the jeep in which they traveled from Gangakhed to Parbhani. He also does not recollect the registration number of the said vehicle. He has further stated that in the police control room at Parbhnai, he had narrated the incident to the police, who had in turn intimated the same to Sonpeth police station. From Parbhani they returned to Gangakhed from where they went to Sonpeth. According to him, he had informed the Circle Inspector Chaudhary that accused Bhaskar and his associates had assaulted Amruta. When he came to Sonpeth police station to lodge a report, he saw that some of the assailants were already brought by the police there, however, he was unable to give names of the said assailants. Omissions are proved in his cross examination that he has not stated in the complaint that when accused Hussain (expired) came to their house, Bhanudas-his brother, Rahibai-his sister in law and Satyabhama-wife of deceased, were standing outside the house. Omission in respect of words uttered by some of the accused when Amruta was taken to the platform of Maruti Temple, are proved. Further omission is proved that he has not stated in the complaint that some of the accused had chased Amruta (deceased) when he ran towards the lane and they were instigating drp {15} Cri. Appeal No.332/2009 others to assault him, when he ran towards gadhi his brother Bhanudas and Satyabhama (PW-5) accompanied him and that from Gadhi he had seen that accused were assaulting Amruta (deceased) and were instigating others to assault him. He has also not stated in the complaint that Bhanudas and Satyabhama rushed to the spot in front of the house of Hasan lala where Amruta was lying from Gadhi. He has also not stated in the complaint that he had seen the assailants in full moon light as well as in the street lights. It was also not stated in the complaint that there were two groups in the village, one led by accused Bhaskar and another of himself and Amruta (deceased) and relations between them were strained. Even in the supplementary statement before police he has not given the full details of the incident, which were witnessed by him. He has also not stated in the complaint that accused Bhagwan was holding sickle and had assaulted Amruta with the same. It is further admitted that accused Bhagwan had lodged a report on 07.11.1995 against himself, all his brothers including Amruta (deceased) and others. 6. It is in the evidence of Satyabhama (PW-5) wife of deceased Amruta, that the alleged incident took place around 10.00 p.m. Prior to the incident, Amruta (deceased) was present in the house along with his brothers. Accused Hussain (expired) came and informed Amruta (deceased) that appellant No.1 Ginaji and accused Bhaskar had called him. Amruta (deceased) had accompanied accused Hussain to the platform erected near the drp {16} Cri. Appeal No.332/2009 Maruti Temple. She, along with PW-4 Vishwanath and Bhanudas, came out of the house and had seen that Amruta (deceased) and accused Hussain (expired) were proceeding towards the platform of the temple where there is a ground adjacent to the temple. She has further stated that all the appellants and other accused were present there, the said persons were asking her husband that he had became arrogant and they would take care of it thereafter some verbal exchange of heated words took place between them and her husband ran, however he was chased by the appellants and other accused. All the accused were instigating to assault her husband. Thereafter, she, along with Vishwanath and Bhanudas ran towards Gadhi. They reached on the upper portion and saw that her husband ran in the lane proceeding to the house of Hasanlala where Amruta was assaulted by the appellants and other accused. She has further stated that accused Bhagwan was having sickle, appellant Ginaji was having axe, appellant Amruta was having iron rod, appellant Rama was having kutti when these persons were assaulting her husband while other accused were instigating them to assault Amruta. After some time, her husband had felled down and hence the assailants had ran away from the spot. She had identified the assailants in the light of moon as well as in the light of street lights. Thereafter she and Vishwanath (PW-4) got down from the Gadhi and rushed to the spot. Her husband, who had sustained injuries over his head, shoulder, back and forearm, was lying in a pool of blood and had expired. Vishwanath had went to Gaundgaon and returned on the following drp {17} Cri. Appeal No.332/2009 morning along with police. In the marathon cross examination, PW-5 Satyabhama has admitted certain things, that relations between her husband and the assailants were strained on account of Gram Panchayat elections, which were held about 2 to 4 months prior to the said incident. According to her about 8 to 15 days prior to the incident, the assailants had assaulted Balasaheb, her brother in law, for which complaint was lodged by said Balasaheb, however, she had not witnessed the said incident. Except her husband all the other members had their dinner on the day of the incident. Her husband had gone out and had returned around 4.00 p.m. and since then he was in the house. Relations between accused Hussain (expired) and Amruta deceased were cordial. Before the incident accused Hussain and deceased Amruta talked for few minutes with each and thereafter Amruta (deceased) accompanied him. Neither she, nor brothers of Amruta (deceased) were aware where Amruta was being taken nor did they persuade him not to go. She has denied that her husband had left the house in the afternoon and did not return till she saw his dead body in the late night. She also denied that any complaint was lodged by accused Bhagwan against her husband and others in respect of the incident at about 9.00 a.m. The platform near the temple is at the distance of about 25 feet from her house. Verbal exchange of words, which had taken place at the spot, was audible at her house as they were shouting loudly. Even after hearing the verbal exchange, neither she nor any drp {18} Cri. Appeal No.332/2009 member from her family had been to the spot to pacify the situation. No neighbour or villagers went to the spot. When they were climbing the gadhi, they were not able to see where her husband was. Entire village is visible from the said Gadhi, which is at the hight of 40 feet from the road level. The said Gadhi is situated at a distance of 40 feet from her house. Width of the lane, in front of the house of Hasan lala is 3 to 4 feet. House