1 (APEAL NO.609/2004 WITH APEAL NO.287/2005) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 609 OF 2004 Ashwin Bansi Sapkale, ) 26 years, Ocupation: resident ) of: C/o Bansi Supadu Sapkale, ) 24/D-3, Karuna Co-op. Hsg. ) Society, Akurli M.H.A.D.A., ) Kandivali (East), Mumbai-400101 ) (Convict Prisoner No.4524, ) Circle No.4 Barrack No.4, Nashik ) Road Central Prison, Nashik Road, ) Nashik, Pin Code: 422101 ) ....Appellant. (Original accused No.1) V/s 1 The Senior Inspector of Police ) Kandivali (East) Police Station, ) Mumbai – 400 101 ) ) 2 State of Maharashtra, ) C/o. The Public Prosecutor, ) High Court, Bombay. ) .... Respondents. ---- Mr. Anand S. Patil for the appellant, appointed as amicus curiae. Ms. A.T. Jhaveri, APP for the State. ---- 2 (APEAL NO.609/2004 WITH APEAL NO.287/2005) ALONGWITH CRIMINAL APPEAL NO.287 OF 2005 Mahesh Balu Jethawa ) Convict Prisoner No.C/4525 ) Nashik Road Central Prison ) Nashik ) ...Appellant. V/s The State of Maharashtra ) at the instance of Kandivali (E) ) Police Station, Mumbai ) .... Respondent. Mr. Anand S. Patil for the appellant, appointed as amicus curiae. Ms. A.T. Jhaveri, APP for the State. CORAM: V. M. KANADE & M.L. TAHALIYANI, JJ. DATE : 15TH NOVEMBER, 2011 ORAL JUDGMENT (Per V.M. Kanade, J.) 1. Heard the learned Advocate Mr. Anand Patil who is appointed as amicus curiae in both these cases to assist the court since the advocate for the appellants have remained absent when the matter was called out. 3 (APEAL NO.609/2004 WITH APEAL NO.287/2005) 2. Appellant in Criminal Appeal No.609 of 2004 is original accused No.1 and the appellant in Criminal Appeal No.287 of 2005 is the original accused No.2. 3. Appellants are challenging the judgment and order passed by the Additional Sessions Judge, Greater Bombay dated 17/3/2004. By the said judgment and order, both the appellants are convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and they are also convicted for the offence punishable under section 37(1)(a) of the Bombay Police Act and sentenced to suffer rigorous imprisonment for six months. Two other accused are shown as absconding accused. 4. Brief facts are as under:- 5. Prosecution case is that Naresh, Dinesh and Navin are brothers who were residing with their family members at Room No.800 at Shanti Sagar Chawl, Kandivali (E). Two brothers Naresh and Dinesh were having a tailoring shop and the third brother Navin was having a computer shop. The appellants and the absconding accused were also residing in the same vicinity. According to the prosecution, on 12/12/1999, at about 21.40 hrs, the absconding accused No.3 – Manoj Singh alongwith accused Nos. 1 and 2 and one 4 (APEAL NO.609/2004 WITH APEAL NO.287/2005) unknown person came near their shop and Manoj Singh questioned Dinesh as to why he had made complaint against them to the Police and when Dinesh told the accused that he had not made any complaint, suddenly accused No.3 – Manoj Singh gave a blow of sickle (koyta) on the forehead of Dinesh. His brother Naresh tried to intervene. However, he was also assaulted by the accused. This incident was witnessed by one Parmeshwar Swami (P.W.2), their neighbour. Both Naresh and Dinesh were taken to the hospital. However, Naresh expired at 0.20 hrs and Dinesh was hospitalized. FIR was registered at Kandivali (E) Police Station. Accused Nos. 1 and 2 were arrested. The spot panchanama was prepared. Accused No.2 was also arrested on 15/7/2000 and a sword was recovered at his instance and at the instance of accused No.1 who was arrested on 20/8/2000, an iron bar was recovered. Trial Court convicted the accused on the basis of evidence which was adduced by the prosecution. 6. Prosecution has examined 13 witnesses out of which there are five eye witnesses viz. P.W. 1 – Dinesh Parmar who was also injured in the said incident, P.W. 3 – Hansa Parmar who was widow of Naresh Parmar, P.W. 4 – Navin Parmar and P.W. 9 – Gesulal Sharma the another neighbour. P.W. 5 Shivaji Shinde and P.W. 10 – Chandrakant Thakur are panchas regarding recovery under section 27 of the Evidence Act and P.W. 7 – Magan Thorat is the panch who 5 (APEAL NO.609/2004 WITH APEAL NO.287/2005) had prepared the spot panchanama. P.W. 8 – Dr. Kendre had carried the post-mortem. P.W. 11 – Dr. Jategaonkar examined Naresh while he was admitted in the hospital. 7. Prosecution has examined P.W. 8 – Dr. Kendre who had performed postmortem and he has stated that injuries mentioned in Column Nos. 17 and 18 and the corresponding internal injury in Column No.19 were sufficient in the ordinary course of nature to cause death. Prosecution has, therefore, established that death of Naresh was homicidal and unnatural. P.W. 11 - Dr Jategaonkar has stated that he was a Registrar in General Surgery Ward in Bhagwati Hospital and he has stated that Naresh Parmar was brought to the hospital and the history of assault was given by sister- in-law. P.W. 11 stated that he noticed a contused lacerated wound on occipital region and one stab wound on the right chest, Lung deep and the patient expired at 12.20 a.m on 13/12/1999. There are five eye witnesses to the said incident and all of them have deposed that the accused assaulted deceased Naresh with lethal weapons and they have also assaulted Dinesh. P.W. 1 – Dinesh has also narrated the incident and has stated that Manoj Singh was holding koyta in his hand, accused No.1 was holding iron rod in his hand and accused No.2 was holding a sword in his hand. He has stated that Manoj Singh gave a blow of Koyta on his forehead and when Naresh came to his rescue, all of them assaulted Naresh with lethal weapons on his stomach 6 (APEAL NO.609/2004 WITH APEAL NO.287/2005) and back of the neck. The testimony of P.W.1 is corroborated by P.W.2 – Parmeshwar Swami who is an independent witness and who was sitting on otla outside his house when the incident took place. P.W. 3 – Hansa Parmar, the wife of deceased Naresh Parmar, also has corroborated the statements of two other eye witnesses. P.W. 4 – Navin Parmar who was also present at the site when the incident took place has also supported the prosecution case. The evidence of all these five witnesses is fully corroborated by medical evidence which is given by P.W. 8 and P.W. 11. 8. All the five eye witnesses have narrated the incident and have given graphic details about the role of each of the accused and they have corroborated each others testimony. Recovery of the weapons at the instance of accused also has been established. Trial Court, therefore, in our view, has rightly held that the prosecution had established its case beyond the reasonable doubt. It is not possible, therefore, to interfere with the finding recorded by the Trial Court. 9. Appeal is dismissed, Judgment and order passed by the Trial Court is confirmed. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.) 7 (APEAL NO.609/2004 WITH APEAL NO.287/2005)