IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 925 OF 2002 APPEAL NO. 925 OF 2002 APPEAL NO. 925 OF 2002 1) Datta Maruti Salgar ] Age : 61 years, ] Occ.: Agriculture ] ] 2) Gunda Datta Salgar ] Age : 26 years, ] Occ.: Agriculture ] Appellants ] (Ori.Accused 3) Babu Appa Gurav, ] Nos. 1 to 3) Age : 61 years, ] Occ.: Agriculture ] ] All r/o : Abdul-Lat, ] Tal. Shirol, Dist. Kolhapur ] Vs. The State of Maharashtra ] Respondents ] (Ori. Complainant) Mr. B.P. Jakhade for the Appellants. Mrs. V.R. Bhosale, Additional Public Prosecutor for the State. CORAM CORAM CORAM : BILAL NAZKI & BILAL NAZKI & BILAL NAZKI & S.A. S.A. S.A. BOBDE, JJ. BOBDE, JJ. BOBDE, JJ. DATE DATE DATE OF RESERVING : 26TH FEBRUARY,2008 OF RESERVING : 26TH FEBRUARY,2008 OF RESERVING : 26TH FEBRUARY,2008 THE THE THE JUDGMENT JUDGMENT JUDGMENT DATE DATE DATE OF PRONOUNCING : 4TH APRIL, 2008 OF PRONOUNCING : 4TH APRIL, 2008 OF PRONOUNCING : 4TH APRIL, 2008 THE THE THE JUDGMENT JUDGMENT JUDGMENT JUDGMENT JUDGMENT JUDGMENT (PER BILAL NAZKI, J.) (PER BILAL NAZKI, J.) (PER BILAL NAZKI, J.) :- 1) This appeal is filed by accused persons in Sessions Case No.30 of 2002. They were convicted for the offence under Section 302 read with Section 34 by the learned 2nd Ad-hoc Additional Sessions Judge, Kolhapur and sentenced to suffer life imprisonment. They were also fined Rs.5,000/- each, in default they have to undergo 2 further rigorous imprisonment for six months. 2) The facts, as alleged by the prosecution, on the basis of which the charge-sheet is filed, reveal that one Annappa Dhondiba Nikam (deceased) was the friend of Rukhminibai’s husband. Rukhminibai’s husband was missing from 1988. The dispute related to her land was going on in Kurundwal and Kolhapur Court and the deceased Annappa Nikam was looking after the said Court matter and he used to attend the Court on the dates fixed. The house of deceased- Annappa was adjacent to the house of complainant - Rukhminibai. They were also visiting each other’s house. The deceased was suffering from leprosy. He was staying with his wife Kamal, sons- Shivaji and Santosh and daughter-in-law Savita. Adjacent to the house of deceased, there was house of Datta Salgar and there was a common wall between the house of deceased and Datta Salgar. About 1 and 1/2 years before the occurrence, the accused Datta Salgar demolished the wall and constructed a new wall within the boundaries of land of the deceased. Since then there were disputes between the family of the deceased and the family of the accused Datta Salgar. Another accused Baburao was 3 the friend of Datta Salgar and he used to come to the house of Datta Salgar. Four days prior to the occurrence, accused Appa visited the house of accused Datta Salgar. At that time, a dispute arose between Babu Gurao and P.W. Shivaji. Shivaji is the son of deceased. On the next day, deceased asked Babu Gurao as to why he had raised dispute with his son. Babu Gurao threatened him and left the spot. The deceased had eye problems and on 27th September 2001, he and Rukhminibai were proceeding towards S.T. Stand for going to Hospital at Kolhapur. When they reached the S.T. Stand, Anna Nikam told Rukhminibai that he would go to get change of Rs.100/- from Pan Stall. After some time, Rukhminibai saw people running towards the temple of Lord Maruti, which was on the bank of lake. She also went to the spot. She saw the deceased was lying on the ground and accused Datta Salgar was beating him by means of axe. She had also seen the son of Datta Salgar and accused Babu Gurao beating deceased by means of stick. She requested the accused persons that they should not beat the deceased, but the accused persons stated that they want to kill Anaji Nikam and caused injuries to his face, head and back by means of axe and sticks. As the blood started 4 oozing from head of deceased, the accused persons left the spot. At the time of occurrence, Suresh Koli, Chavan, Prakash, Sada and other villagers were present on the spot. Sons of the deceased also came on the spot. 3) On 27th September, 2001, the incident occurred and on the same day complaint was lodged by the complainant with Kurundwad Police Station. The complaint was registered as C.R. No. 30 of 2001. Accused were arrested on 27th September, 2001 and after investigation, charge-sheet came to be filed in Court on 7th December, 2001. The charges were framed on 6th March, 2002. The charges were readover and explained to the accused, to which they pleaded not guilty and claimed to be tried. The prosecution has examined in all 22 witnesses. 4) The defence, as disclosed in the cross- examination, was that the deceased had died of an accident and that the accused had nothing to do with the deceased. 5) P.W. 1 Rukhminibai stated that she has agricultural land, she was staying alone and her 5 sons Balu and Sagar were working at Mumbai. Her husband was missing since last 10 to 15 years. She was knowing Annappa Dhondiba Nikam, who belonged to her village. Annappa Nikam was helping her in the suit which she had filed in Kolhapur Court and for that purpose she used to go to his house. The house of deceased is in her village at the distance of about 50 feet from her house. Deceased was suffering from leprosy. In the house of Annappa, his wife Kamal, sons Shivaji and Netani and daughter-in-law Savita were residing. The house of accused No. 1 Datta is adjacent to the house of Annappa Nikam. Accused No. 2 is the son of accused No. 1. There was common wall between the house of accused no. 1 and the deceased. There were disputes between accused no.1 and deceased related to the said common wall, due to which their relations were strained. Accused No. 3 used to come to the house of accused no. 1 and, therefore, the witness knew him also. She identified the accused persons in the Court. Four days prior to the incident, there was dispute between Babu Gurav and son of deceased, Shivaji. Thereafter deceased asked Babu Gurao as to why he quarrelled with his son. At that time, Babu Gurao threatened the 6 deceased that he would take revenge and left the spot. The incident took place on 27th September, 2001. As the deceased wanted to get treatment to his eye, they both were going to Kolhapur at C.P.R. Hospital. They reached at the S.T. Bus stop of the village. At that time the deceased had gone to the Pan Stall of Dhondiba Chavan to get change of Rs.100/-. There is a lake behind the said Pan Stall and the temple of Lord Maruti is situated on the bank of said lake. At that time as the people started running towards the said spot, she also went towards the spot. When she reached near the slope, she saw accused Gunda Salgar with an axe and deceased was lying on the ground. Accused Datta Salgar, Gunda Salgar and Babu Gurao were armed with stick and they were forcibly beating Annappa Nikam. At that time, she cried, "rescue him, rescue him". She heard someone uttering that deceased should not be left alive. Deceased sustained bleeding injury on his head and became unconscious. Thereafter the accused persons left the spot. At that time, one Dhondiba Chavan, Prakash Shinde, Sadashiv Kulkarni and other villagers gathered at the spot. One Suresh Koli and Shivaji, son of Annappa Nikam were also present. Shivaji brought one six seater 7 rickshaw of one Mohamedan at the spot. Thereafter, witness herself, Shivaji Nikam and Savita Nikam kept deceased in the rickshaw and brought him to Kurundwad Police Station. 6) The Police gave a chit and then they took deceased to Government Hospital, Kurundwad. The Medical Officer treated deceased and asked them to go to Sangli Civil Hospital. The Doctor examined the said Annappa Nikam and declared him dead. Police prepared the panchanama of dead body and referred it for post-mortem. At that time, Shivaji was also present. Thereafter, they went to the Police Station and lodged report. Thereafter, Police reduced it into writing, as per her version. Thereafter, she put her thumb impression on the said report. She accepted the contents of the report (Exhibit 40) as correct. Kallappa Koli signed on the report in token of her identification. She also produced the shirt and handkerchief, stained with blood, before the Police. The Police then seized the said clothes. She saw the clothes and identified them to be Article Nos. 1 and 2, but then again stated that the shirt shown to her was not the shirt which was seized by the Police from her. Thereafter, she 8 went to the spot along with the Police. Panch witnesses were with them. Police prepared panchanama of the spot of incident. 7) In the cross examination, she stated that one Kallappa Balu Bedkyale is her younger brother- in-law. Since last 15 to 16 years, he was also missing. Her husband and said brother-in-law were dumb. There had been disputes between her and her said brother-in-law. In that dispute, the deceased was helping her. She denied the suggestion that 15 to 16 years before she and her husband committed murder of her brother-in-law and threw his deadbody in the River. She denied the suggestion that she had not lodged any missing report about the said brother-in-law and as a guardian of minor son, she got entered her name in place of her brother- in-law in the 7/12 extract of land. Her husband was missing from 1988. Prior to the date of missing of her husband, names of her sons have been entered in the 7/12 extract. She had mortgaged the land to one Surendra. She denied the suggestion that she had deposited an amount of Rs.1,35,000/- in the bank in the name of the deceased, which she had received by mortgaging the land. Since last 10 to 12 years, her sons had 9 gone to Mumbai. She also used to go to Mumbai. She denied the suggestion that her son got annoyed with her due to mortgage of land and therefore, her sons were not visiting her. Prior to 9 years, accused No. 1 had once beaten on the knee of her husband. She denied the suggestion that she herself and Annappa Dhondiba Nikam killed her husband and threw him in the River. She did not know Annappa Devappa Chimane. She denied the suggestion that she was cultivating his land. She denied the suggestion that murder of Annappa Devappa Chimane was also committed by her with the help of the deceased. She denied the suggestion that prior to 3-4 years, 300 to 400 persons from her village had tried to kill the deceased. Her parents house is at Shiradwad, which is at a distance of 4 Kms. from her village. Nobody is staying with her in the house, as her sons left the village. When she brought the deceased to the Police Station at Kurundwad, Shivaji Nikam and Savita Nikam were with her. They reached the Police Station at 10 a.m. At that time, she had given the information to the Police about the occurrence. She accepted that she had not put any thumb impression. At about 11.00 a.m. they reached Sangli Civil Hospital. She was not able 10 to recall, in her cross-examination, the names of those persons who were present at the spot of incident, but she denied the suggestion that Kallappa Koli asked her to tell the names of the aforesaid persons and therefore she mentioned their names in her report. When she went to the spot of incident, Annappa Nikam was lying down facing towards the ground. Five minutes thereafter, Shivaji Nikam and other members of his family came to the spot. Thereafter, Shivaji and his wife Savita lifted the deceased. After Annappa Nikam fell down, she had not seen deceased was beaten by blow of axe on his back. She had seen the injuries on the right and left side of forehead and on right hand of the deceased. About the incident which took place four days prior, nobody lodged the report to the Police. There was no civil dispute pending between them. She denied the suggestion that she does not have any knowledge of any occurrence and at the instance of Kallappa Koli she filed false report against the accused persons. She did not know as to whether P.W. Shivaji had stated before the Police that deceased received injuries as a result of an accident. She denied the suggestion that she was participating in the Lok Adalat, the People were 11 coming to her for legal advice, she used to accompany the villagers to the the Police Station and therefore, she had cordial relations with the Police Officers. But she admitted that she and deceased had good relations with staff members of Revenue Department. She denied the suggestion that she and deceased had grabbed 1 acre 10 Are of land of Annappa Chimane. She also denied that deceased had committed murder of Annappa Chimane and expelled his wife and children to Karnataka State. She denied the suggestion that one lady had lodged report against her and deceased for grabbing Rs.50,000/-. She admitted that she had made a complaint to Deputy Superintendent of Police., Kolhapur that he should take action against Darekaror, else she would commit suicide. She did not know what happened to that complaint. She denied the suggestion that D.S.P. had warned her not to file such complaint. She did not know as to whether Kallappa Koli had stabbed other person and complaint was lodged against him. She also did not know as to whether Lakshman Koli lodged report against Kallappa Koli in the Court of Ichalkaranji. She denied the suggestion that whenever Kallappa Koli was having any legal problem, he used to take advise of the deceased 12 and her. 8) The other witnesses who were on the spot or who came to the spot immediately after the incident, are P.W. 7, 8, 9, 12, 14, 16 and 19. 9) P.W. 7, Ananda Balasaheb Hanchanale, stated that he was serving at ICHO Spinning Mill at Ichalkaranji. In his Mill, after every 15 days the shift used to change. On 26th September 2001, his shift was from 12 midnight. On that day, he worked upto 8 a.m. of next day. On 27th September 2001, after his shift was over, at about 8.30 a.m., he went to the S.T. Stand square of his village. There was hair cutting saloon and he went to have his hair cut and shave. As there were two persons already in the shop, he stood out of the said shop. At that time, he heard the noise of clamour at the side of lake. He rushed to the spot. Large number of people were gathered at the spot. He saw Annappa Dhondiba Nikam was lying near the said lake. Accused Datta Salgar was armed with an axe of red colour and his son Gunda and accused Babu Gurav were armed with sticks and they all were beating Annappa Nikam. At that time, Shivaji Nikam and his wife came to 13 the spot. Thereafter, all the three accused persons ran away towards the Temple of Lord Maruti. At that time, Rukhminibai was weeping and requesting accused persons that they should not beat Annappa Nikam. Thereafter, Shivaji, his wife and Rukhminibai carried deceased towards Kurundwad. Thereafter, he went for hair cutting and shaving and then went to his house. Thereafter, in the evening, he came to know that Annappa Nikam had died. He identified the accused persons in the Court. 10) In his cross examination, he denied the suggestion that theft case was lodged against him. He also denied the suggestion that his photograph has been displayed in the Police Station as a criminal. He is resident of Jawainagar of Abdul-lat. The Police has recorded his statement after one month of the incident. He was residing in 3rd lane at last, from the house of Annappa Nikam at the distance of 150 feet. He denied the suggestion that Annappa Nikam has helped him in theft case. He stated that he at his own accord had gone to the Police Station for making the statement. On the day of occurrence, Police came 14 to the village for preparing the panchanama at that time, he saw the Police. He did not know as to whether on the next day, the Police came to the village or not. On the day of incident, he had gone to the Police to ask them to record his statement. In his presence, accused Datta Salgar had not given a blow of an axe on the back of Annappa Nikam. Rest of the accused gave 5 to 6 stick blows on the back of deceased. Before he reached the spot of incident, 100 to 150 persons were gathered there. Nobody tried to rescue the deceased. He also did not dare to do so. He had stopped there for 15 to 20 minutes. He could not say the names of the persons who were present there. He had studied upto 10th standard. He denied the suggestion that on the day of incident, his shift was from 8 a.m. to 12 noon. In his mill, the first shift starts from 8 a.m. to 4 p.m. and it is from 1st day to 15the day of the month. The second shift starts from 16th day of that month and ends on last day of the month. He denied the suggestion that he had no knowledge of the incident. 11) On further cross-examination by learned counsel for another accused, he denied the 15 suggestion that there was dispute in the Mill with regard to payment of salary. He also denied the suggestion that P.W. 1 Rukhminibai came to him and requested him to give statement. He admitted that he had friendly relations with second son of the deceased. He denied the suggestion that in September 2000, Police Inspector, Dandekar caught him red handed while committing theft of petrol and at that time deceased and P.W. 1 Rukhminibai got him released on bail. 12) This witness does not inspire confidence of the Court firstly on the count that he does not appear to be a natural witness. He deposed that on the day of occurrence, Police came to the spot, he saw the Police. He did not tell the Police that his statement be recorded but he chose to go to Police to make a statement after one month of incident. 13) P.W. 8, Mallu Lakshman Koli stated that he knew deceased who used to come to the house of his brother. He also knew P.W. 1 Rukhminibai and all the accused persons. On 27th September 2001, he had gone to village Abdul-lat at 9.30 a.m. On that day, when he had gone to S.T. Stand of his 16 village he heard the noise from the backside of the S.T. stand. On hearing the noise, he went to the spot. At that place, deceased Annappa Nikam was lying there on the ground and all three accused persons ran away towards Maruti Temple. Except this he did not see anything. This witness was declared hostile and on cross-examination by learned A.P.P., nothing much could be extracted from him. 14) P.W. 9, Shivaji Annappa Nikam is the son of the deceased. He stated that the incident took place on 27th September 2001. On that day, his father had told him that he was going alongwith P.W. 1 Rukhminibai to C.P.R. Hospital, Kolhapur, for check up of his eyes. He went towards bus stand. When his father went towards the S.T. Stand, it was about 9.30 a.m. Thereafter, he went to cattle pond to feed the cattle . There he saw some people running towards the lake side. He also went towards the lake and saw his father lying near the said lake. Accused Datta Salgar was beating his father by means of an axe and accused Gunda Salgar and Babu Gurav were beating his father by means of sticks. At that time, P.W. 1 Rukhminibai was present there and was requesting 17 the accused not to beat the deceased. All the accused thereafter went towards Temple of Lord Maruti. His father had received wounds over his head, face, hand and wheel marks on the back and was lying unconscious. Thereafter, he along with his wife, P.W. 1 Rukhminibai and his mother took his father to Kurundwad Police Station, then to Government Hospital, where Doctor declared him dead. Thereafter, he took the custody of the dead-body of his father and took to his village and then cremated it there. 15) In his cross-examination, he denied that at Sangli he had lodged report immediately. In between 6.00 and 7.00 p.m., the dead-body of his father was cremated. On that day, his family members did not lodge a report anywhere, but he came to know that P.W. 1 Rukhminibai had lodged a report against the accused. On the next day of incident, Police called him to the Police Station and recorded his statement. He denied the suggestion that, he deposed falsely, that on the next day, Police recorded his statement. He denied the suggestion that since the death of his father occurred due to accident, he had not lodged any report with the Police. The persons who 18 gathered at the spot of occurrence did not try to intervene. The accused did not try to beat the witness, but after seeing him they left the place of occurrence. When he saw his father, his face was bended towards the ground, and he was lying on the hand at one side. In his presence, accused Datta Salgar gave 2-3 blows of axe from sharp side on the body of his father. One blow was given above the ear and the second blow was on the hand. He did not remember as to which part of the body the third blow was received by the deceased. 16) P.W. 12, Suresh Kallapa Koli stated that he knew the deceased, who was living in his village. The deceased used to come at his house to collect rent. Adjacent to the house of deceased, there was house of accused, Datta Salgar and Gunda Salgar. He knew said accused persons and P.W. 1 Rukhminibai. On 27th September 2001 at 9 a.m., he had gone to the bank of the lake for flying kite. At that time, accused Datta Salgar and one person of black complexion having moustache and wearing dhoti were sitting near the temple of God Biroba. At that time he had seen P.W. 1 Rukhminibai followed by Annappa Nikam, proceeding from the foot-way of the said lake. At 19 that time, accused Datta Salgar by means of an axe and accused Gunda and the person having moustaches started beating the deceased. Due to said beating, deceased fell down on the ground. P.W. 1 Rukhminibai by that time had gone ahead came back and asked the accused persons that they should not beat Annappa Nikam. The son of Annappa namely Shivaji also came to the spot. Thereafter on that day he came to know about the death of Annappa. He identified the accused Nos. 1 to 3 as the same persons who had beaten the deceased. . When the statement was recorded on 17th May 2002. this witness was 14 years old. So one can presume that on the day of occurrence, he was less than 14 years of age. 17) In his cross-examination, he stated that