1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.256 OF 2008 Jaykumar s/o Bhimrao Kadam, Age : 32 yrs, Occ.Agril., R/o Limbgaon, Tq. Nanded, Dist. Nanded ..APPELLANT (Ori. Accused No.1) VERSUS State of Maharashtra Through Police Station Officer, Police Station, Tadkalas, Tq. Purna, Dist. Parbhani ..RESPONDENT Mr Joydeep Chatterji, Advocate for the appellant; Mr K.B. Chaudhari, A.P.P. for the respondent WITH CRIMINAL APPEAL NO.199 OF 2008 1. Bhimrao Kishanrao Kadam, Age : 71 yrs, Occ.Agril., R/o Limbgaon, Tq. Nanded Dist. Nanded 2. Gayabai Bhimrao Kadam, Age : 54 yrs., Occ.Nil, R/o As Above 3. Kalpana Jaykumar Kadam, Age : 28 yrs., Occ.Agril., R/o As Above 2 4. Ballu @ Shamrao Ganpatrao Bhojane, Age : 28 yrs, Occ.Agril., R/o Sunegaon, Tq. Basmath, Dist. Hingoli 5. Ganesh Janardan Bhokare, Age : 33 yrs, Occ.Agril., R/o Purna, Tq. Purna, Dist. Parbhani 6. Shivaji Janardan Bhokare, Age : 22 yrs, Occ.Agril., R/o Purna, Tq. Purna, Dist. Parbhani 7. Munjaji Ganpatrao Bhojane, Age : 30 yrs, Occ.Agril., R/o Sunegaon, Tq. Basmath, Dist. Hingoli ..APPELLANTS (Ori.Accused Nos.2-5 and 8-10) VERSUS * State of Maharashtra Through Police Station Officer, Police Station, Tadkalas, Tq. Purna, Dist. Parbhani ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellants; Mr K.B. Chaudhari, A.P.P. for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 24th August, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants in the said Criminal Appeals are original accused 3 nos.1 to 5 and 8 to 10. Original accused no.1 stands convicted for an offence punishable under section 302 of the Indian Penal Code and is sentenced to imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer R.I. for one year; under section 25 (1) of the Indian Arms Act and is sentenced to R.I. for three years and to pay fine of Rs.2,000/-, in default to suffer R.I. for three months; under section 143 of the Indian Penal Code and is sentenced to R.I. for three months and to pay fine of Rs.500/- in default to suffer S.I. for fifteen days; under section 147 of the Indian Penal Code and sentenced to R.I. for one year and to pay fione of Rs.1,000/- in default to suffer S.I. for two months; under section 148 of the Indian Penal Code and sentenced to R.I. for two years and to pay fine of Rs.1,000/-, in default to suffer S.I. for two months, with a direction that all the sentences shall run concurrently. Original accused nos.2 to 5 and 8 to 10 stand convicted for offence punishable under section 324 read with sec. 149 of the Indian Penal Code and sentenced to R.I. for three years and to pay fine of Rs.2,000/- each with a default stipulation of undergoing S.I. for three months; under section 143 of the Indian Penal Code and sentenced to R.I. for three months and to pay fine of Rs.500/- each, in default of which to suffer S.I. for fifteen days; under section 147 of the Indian Penal Code and sentenced to R.I. for one year and to each pay fine of Rs.1,000/-, in default of which toi suffer S.I. for two months; under section 148 of the Indian Penal Code and sentenced to R.I. for two years and to each pay fine of Rs.1,000/-, in default of which to suffer S.I. for two months. Accused nos.3 & 4, in addition are convicted 4 under section 324 read with sec. 149 of the Indian Penal Code and sentenced to suffer imprisonment till rising of the Court and to each pay fine of Rs.1,000/-, in default of which to undergo further S.I. for one month, by the Sessions Judge, Parbhani, by judgment dated 29.5.2008 in Sessions Trial No.48 of 2007. Since both the appeals question the correctness of the conviction and sentence of the appellants, both the appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- P.W.14 P.I. Gautam Fasle, who was attached to Police Station Tadkalas received information at about 10.30 a.m. on 1.11.2006 that certain incident had occurred at the village in which 4 to 5 persons were injured. He also received information that the injured were receiving treatment at the Tadkalas hospital and, therefore, visited the Tadkalas hospital. It appears that the injured were referred to the Parbhani hospital and, therefore, on reaching the Tadkalas hospital P.W.14 P.I. Fasle was informed about the same. From the Tadkalas hospital P.W.14 P.I. Fasle returned back to the police station Tadkalas. At that time accused Bhimrao Kadam, Jaykumar and Gayabai Kadam had arrived at the Police Station with intention of lodging a report. They were asked to wait in the Police Station and P.W.14 P.I. Fasle visited village Maher i.e. the scene of the occurrence and noticed a mob of 50 persons behaving in 5 disorderly manner at the scene of the occurrence. From the Control Room a message was received that the injured had been admitted in the Civil Hospital at Parbhani. P.I. Fasle had also been informed that one of the injured had succumbed to the injuries and asked to go to the Parbhani hospital. The accused who had come to the police station were sent to police station, Purna along with the police escort and P.I. Fasle went to the Parbhani hospital. P.W.14 P.I. Fasle requested the Medical Officer to examine injured Bhagwan Paul and ascertain if he was in a condition to give a statement. On the Medical Officer certifying the fitness of Bhagwan, P.W.14 P.I. Fasle recorded his statement. He obtained the signature of Bhagwan on the said statement. The said statement is at Exh.60. After recording the said statement P.W.14 P.I. Fasle returned back to police station, Tadkalas and registered an offence vide Crime No. 56 of 2006 and undertook the investigation himself. On the same day he arrested four accused at arrest panchnamas Exh.113 to 116. Names of other accused also transpired during custodial interrogation. On the next day P.W.14 P.I. Fasle visited the scene of the occurrence at Mahergaon and in the presence of the panch witnesses, namely P.W.7 Uddhav and another panch drew the scene of the offence panchnama at Exh.77. From the scene of the offence handkerchief and cap of injured Bhagwan was seized as also the sample of plain soil and blood mixed soil came to be seized. During the search of the residential house of accused Bhimrao, 5 to 6 wooden sticks and a knife were found in the courtyard of the house of the accused and accordingly came to be seized vide 6 seizure memo at Exh.79 in the presence of P.W. 8 Ramesh. The buffalo and the calf were given on supurtnama to Police Patil Yeshwant Paul vide panchnama at Exh.80. On 3.11.2006 he arrested the other accused under arrest panchnamas at Exhs.117 and 118. On the next day i.e. on 4.11.2006 the other accused came to be arrested. The Surveyor from the Land Record had drawn sketch map of the place of the occurrence. On 4.11.2006 the accused who had been arrested were referred for medical examination with a request to draw their blood sample. Accordingly, P.W. 11 Dr. Zakir examined the accused and issued the certificates at Exhs. 89 to 94. The seized property came to be referred for chemical analysis vide requisition at Exh.102. Injured had succumbed to the injuries and accordingly the inquest panchnama had been drawn. Clothes of Bhagwan and other injured came to be seized in the presence of panchas at Exh.82. On 7.11.2006 during custodial interrogation accused Jaykumar had expressed his willingness to point out the place where the Gupti (stick sword) had been concealed. The aforesaid panchnama came to be recorded in the presence of P.W.10 Bhaskar at Exh.84. The accused led the police and the panchas to his house and produced a Gupti from beneath the staircase. The aforesaid Gupti came to be seized vide panchnama at Exh.85. Clothes of accused Bhimrao and Jaykumar came to be seized under panchnama at Exh.86., On 9.11.2006 clothes of deceased Ambadas came to be seized vide seizure memo at Exh.74 in the presence of panchas. Accused Ganesh came to be arrested vide arrest panchnama at Exh.122 while accused Shivaji came 7 to be arrested under arrest panchnama Exh.123. The seized articles were referred to the Chemical Analyser vide requisition at Exh.102. Accused Munja came to be arrested under arrest panchnama at Exh.127 while accused Pandurang came to be arrested under arrest panchnama at Exh.128. Further to the completion of investigation a charge-sheet against the appellants came to be filed in the Court. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.33 framed charge against the accused for offence punishable under section 143, 147, 148, 302 read with sec. 149, 324 read with sec. 149, 504 read with sec.34, 506 read with sec. 34 of the Indian Penal Code and under section 37 (1) (3) of the Bombay Police Act and against accused no.1 for an offence punishable under section 25 (1) of the Arms Act. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 18 witnesses. The Trial Court, upon appreciation of the evidence of the prosecution, convicted and sentenced the accused as aforestated. The present appeal filed by the accused questions the correctness of their conviction and sentence. 4. In order to appreciate the submissions advanced before us by Shri Joydeep Chatterji and Smt. S.S. Jadhav, learned Counsel for the appellants and the learned A.P.P. for State, it would be useful to refer to the prosecution evidence. 8 5. P.W.1 Bhagwan, an injured eye-witness and first informant states that he owns 3-1/2 Acres of land adjoining the field of accused Bhimrao. Accused nos.1, 2 & 3 along with their family members reside in the farm house constructed in their field. According to him, on 1.11.2006 at about 6.00 p.m. the buffalo of Bhimrao has strayed in the field of P.W.1 Bhagwan and was damaging the cotton crop. Hanuman, son of P.W.1 Bhagwan tied the she-buffalo and on account of which accused nos.1, 3 & 4 came to the field of P.W.1 Bhagwan and abused his son and wife. The accused had also threatened Bhagwan. The aforesaid incident was narrated to P.W.1 Bhagwan by his wife and son. Bhagwan had accordingly gone to the Police Patil and the Police Patil advised Bhagwan to untie the buffalo and report the incident to the police. Accordingly Bhagwan returned to his field and untied the buffalo. On the next day at about 9 to 9.30 a.m. Bhagwan was proceeding to police station Tadkalas accompanied by his son P.W.2 Munja. As they reached near the field of the accused, accused no.2 Bhimrao gave a call to them. Accused no.2 Bhimrao and accused no.1 Jaykumar caught Bhagwan and dragged him to the field of one Sopan Kale and started assaulting him. He states that Vijaykumar dealt a stick blow on his head while accused no.2 Bhimrao dealt a knife blow on his chest. He states that he suffered bleeding injury and raised cries for help. On that accused no.3 Gayabai, accused no.4 Kalpana assaulted him by fists and kicks. Hearing his cries for help, P.W.4 Vikram who was working in the other field and P.W.3 Angad came to the scene of the incident. Similarly, P.W.6 Kundlik and 9 P.W.5 Ramkisan also arrived there. Accused Bhimrao called the other accused from his field and accordingly accused Ballu, Shiva, Munja, Ganesh and Pandurang Ambhore came there with sticks and knives. Ballu dealt a knife blow on the right thigh of Vikram while Angad was assaulted by sticks by Ganesh, Munja and Shiva. Shiva also dealt a knife blow on the back of Munja. Deceased Ambadas and one Subhash Chimte arrived at the scene of the incident and Ambadas was caught by accused no.2 Bhimrao and accused no.11 Pandurang. Accused Vijaykumar dealt a blow of Gupti on the chest of Ambadas. While P.W.6 Kundlik was offering water to injured Ambadas, accused Ballu, son of Kishanrao dealt a knife blow on his head. P.W.5 Ramkisan was also assaulted by knife by accused no.5 Ballu. Hearing the commotion, several villagers arrived at the place and accordingly accused no.2 Bhimrao signalled the other accused to flee from the scene of the incident. The injured were taken to the Tadkalas hospital where the Doctor examined the injured and referred them to Parbhani hospital. He states that his statement was recorded by the police at Exh.60. In cross- examination he has admitted that the distance between his field and village Maher is about half a kilometer, while the distance between village Maher and Tadkalas is six kilometers. He has admitted that his brother Angad resides separate and the field of Angad is adjoining to his field. He has also admitted that prior to the incident there were no disputes between accused Bhimrao and him. He has admitted that he did not go to the house of accused when his wife had informed him that the buffalo 10 of the accused Bhimrao had strayed in his field. He has admitted that after he had released the buffalo there was no quarrel between him and accused Bhimrao. He has admitted that when he was proceeding to the police station on the next day of untying the buffalo, he was not possessing any written report. He has admitted as correct that hearing his cries when Angad, Kundlik, Vikram and Ramkishan were coming to the place of the incident they had been assaulted with sword, spears, etc. by twelve persons. He has admitted that in the said beating he along with the witnesses had received serious injuries. He has admitted that on the day of the incident Ambadas had gone to Tadkalas and at the time of the incident had come with Subhash Chimte at the scene of the incident. He has admitted that when he was initially assaulted, no one was present in the adjoining field. He has admitted that he was not rendered unconscious on account of receiving the first blow by stick on his head. He has admitted that he had stated that he had not collapsed at the place of the occurrence. He has admitted that the incident of assaulting Angad, Kundlik, Vikram and Ramkishan had occurred when Ambadas had come to the place of the incident. He has also admitted that after the incident the injured were sitting at the place of the occurrence. He has admitted that none of the injured had been caused any injuries by sword. Certain unknown persons were armed with swords and he had noticed spears with the unknown persons. He has admitted that the unknown persons had not inflicted any injury to him or to the other injured. He has admitted that he had not stated in his report 11 that Bhimrao had caused an injury of knife on his chest. Similarly he has admitted not to have stated in his report that accused Ballu, accused Shivaji, accused Munja and accused Ganesh had come armed with sticks and knives. He has admitted that he had not stated that accused no.5 caused an injury by knife on the thigh of Vikram. He has admitted not to have stated in his report that accused no.10 Munja, accused no.8 Ganesh and accused no.9 Shivaji had assaulted Angad with stick. He could not remember if he had stated in his report that his son Munja was accompanying him when going to police station, Tadkalas. He has admitted not to have stated in his report that accused Shivaji dealt a knife blow to his son Munja. Similarly, he has admitted not to have stated in his report that Kundlik was offering water to Ambadas and at that time accused Ballu had dealt a knife blow on his head. He could not remember if he had stated in his report that accused Ballu had dealt a knife blow on the chest of Ramkishan. Omission has been duly proved in his statement dated 9.11.2006 that he had not stated that accused Ballu, Shivaji, Munja and Ganesh had come armed with sticks and knife. He has admitted not to have stated in his statement that accused Ballu dealt a knife blow on the thigh of Vikram. He has admitted not to have stated in his previous statement that accused Bhimrao dealt a knife blow to him. He has admitted that the police recorded his statement in the hospital at Parbhani. He has denied the suggestion that the accused had not assaulted him and the other injured, but certain unknown persons were involved in the incident. Omission has been duly proved that he 12 had not stated in his previous statement that accused Gayabai, Kalpana had assaulted him with fists and kicks. Similarly, he has admitted not to have stated in his previous statement that while he was passing from the field, accused Bhimrao had given a call to him. 6. Prosecution has examined P.W.2 Munjaji, son of P.W.1 Bhagwan. He states about the prelude to the incident of the earlier day about the buffalo straying in the field of P.W.1 Bhagwan and damaging the cotton crop. He states that on the day of the incident he had accompanied his father for lodging a report at police station, Tadkalas and when they had reached the field of Sopan Kale, accused Bhimrao and the other accused had taken P.W.1 Bhagwan to the field of Sopan Kale. He states that accused Shivaji had dealt a knife blow on his back while accused Bhimrao had dealt a blow on the left side chest of his father. Accused Jaykumar had assaulted his father i.e. P.W.1 Bhagwan by a stick on the head. He states that he and his father cried for help and accordingly P.W. 4 Vikram had arrived at the scene as also P.W.3 Angad. He states that accused Ballu dealt a knife blow on the thigh of Vikram while accused Munja and Shiva assaulted Angad with sticks. One Motiram had also come to the scene of the incident. Munja states that his mother had also arrived there. Motiram, however, fled towards the village. Deceased Ambadas and one Subhash had also arrived at the place of the incident. Kundlik and Ramkishan had also arrived there. Accused Bhimrao and accused Pandurang had caught Ambadas while accused Jaykumar dealt 13 a blow of Gupti on the chest of Ambadas. On receiving injury Ambadas fell on the ground. Kundlik was offering water to Ambadas and accused Ballu dealt a knife blow on the head of Kundlik. Accused Ballu also dealt a knife blow on the chest of Ramkishan. The accused thereafter fled from the scene of the offence on seeing the villagers. In cross-examination he has admitted that accused Jaukumar is not a resident of the village but had purchased about 10-1/2 Acres of land at the village. He has admitted to have sustained two injuries on head and back. However, he admits that he was not rendered unconscious on account of the injuries. He has admitted not to have informed the Doctor at Parbhani about the names of the accused who had caused injuries to him. He has admitted that a police jeep had accompanied them when they were shifted from the hospital at Tadkalas to the hospital at Parbhani. He has admitted that none of the injured had travelled in the jeep to the Parbhani hospital. In further cross-examination on behalf of the other accused, he states that his mother had informed him about the tying of the buffalo of accused Bhimrao by his other brother Hanuman. He admits that his mother had also narrated to him about the threat given by Bhimrao. He states that his mother had also narrated the incident to his father P.W.1 Bhagwan and thereafter his father had untied the buffalo. He has admitted that when he and his father were assaulted, none of the villagers were present there. He states that he and his father were dragged to the field of Sopan Kale by the accused. He states that accused Bhimrao carried a knife in his pocket and with that knife he had inflicted an injury to his 14 father P.W.1 Bhagwan. He has admitted that about 8 to 10 persons had rushed to the scene of the occurrence and they were armed with sticks and had commenced assaulting the injured. He states that those persons who are unknown to him. He states that two blows by a stick were inflicted to Angad and thereafter those unknown persons fled from the scene. He has admitted that the police recorded his statement after some days from the incident and till that time he had not disclosed about the incident to the police. He states that till Ramkishan was assaulted by the accused, none of the villagers had come to the scene of the occurrence. He admits that villagers had come after fifteen minutes of assault on Ramkishan. He has denied to have stated portion marked "B" in his statement to the effect that while they were passing by the side of the field, accused Ballu had called them to the field of Sopan. Similarly he has denied to have stated portion marked "C" from his statement that Bhimrao had assaulted his father P.W.1 with a stick. Portion marked "D" also came to be denied by him to the effect that after 8 to 10 persons had arrived there accused Bhimrao dealt a stick blow on the chest of his father. 7. Prosecution has examined P.W.3 Angad, who also deposes about the incident. He states that on hearing the cries of his brother he ran towards the field of Sopan accompanied by his servant P.W.4 Vikram. He states that accused Bhimrao had assaulted P.W.1 Bhagwan by a stick while accused Gayabai had assaulted his brother Bhagwan by fists and 15 kicks. Accused Jaykumar had assaulted Bhagwan with stick on his head, while accused Ballu had assaulted Bhagwan with sticks. Accused Ballu had dealt a knife blow on the thigh of Vikram. He states that accused Bhimrao had called some unknown persons from his farm house, who are accused Munja, Ganesh and Shivaji. He states that accused Ballu dealt stick blow on his head and thereafter accused Ballu, Shiva and Ganesh assaulted him on his waist. He states that thereafter he had seen Ambadas arriving at the scene of the offence and at the same time Kundlik and Ramkishan had also arrived there. Accused no. 11 Pandurang and accused no.2 Bhimrao had caught Ambadas while accused Jaykumar had dealt a Gupti blow on his abdomen. On receiving the injuries Ambadas fell down and while Kundlik was offering him water , Ballu inflicted a knife blow on the head of Kundlik and also assaulted Ramkishan with a knife. The accused fled from the scene of the incident on the arrival of the villagers. In his cross-examination he states that he was at the Parbhani hospital for six days. He states that his statement came to be recorded on 9th November and till that time he did not disclose the incident to any one. He states that when he had reached the scene of the occurrence six other persons had come to the scene of the incident, out of which he was knowing three persons. The said persons who had arrived at the scene of the incident were armed with sticks. In cross-examination he has admitted that he had seen injury on the chest of Bhagwan and injury on the back of Munja. He has further admitted that when he had come to the scene of the offence, accused Jaykumar 16 and accused Bhimrao were armed with sticks and were assaulting Bhagwan and Munja. He has further admitted that when he had come to the scene of the incident, accused Jaykumar and accused Bhimrao were armed with sticks and were assaulting