1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.12 OF 2008 1. Sayas s/o Vaijnath Mundhe, Age : 32 years, Occu.Agril., 2. Vasant s/o Vaijnath Mundhe, Age : 30 years, Occu.Agril., 3. Santosh s/o Vaijnath Mundhe, Age : 23 years, Occu.Agril., 4. Vaijnath s/o Govindrao Mundhe, Age : 72 years, Occu.Agril., All R/o Pimpaldari, Tq. Gangakhed, District Parbhani, at present Central Jail, Aurangabad ..APPELLANT (Orig. Accused) VERSUS * The State of Maharashtra ..RESPONDENT Mr C.V. Thombre, Advocate for the appellant; Mr K.S. Patil, A.P.P. for the respondent. WITH CRIMINAL APPEAL NO.14 OF 2008 1. Maroti Dnyanoba Mundhe, Age : 56 years, Occu.Agriculture, 2 2. Ashok Maroti Mundhe, Age : 27 years, Occu.Agriculture, 3. Gangadhar Maroti Mundhe, Age : 28 years, Occu.Agriculture, 4. Dhondiram Maroti Mundhe, Age : 29 years, Occu.Agriculture, 5. Sanjay Nivrutti Latpate, Age : 28 years, Occu.Agriculture, All Above R/o Pimpaldari, Tal. Gangakhed, Dist. Parbhani ..APPELLANTS (Original Accused No.1, 4, 7, 10 & 11, respectively) VERSUS * State of Maharashtra, Through Police Station Officer, Pimpaldari Police Station, Tal. Gangakhed, Dist. Parbhani ..RESPONDENT Mr S.C. Bora,Advocate for the appellants; Mr K.S. Patil, A.P.P. for the respondent WITH CRIMINAL APPEAL NO.49 OF 2008 1. Yashwant s/o Baburao Mundhe, Age : 28 Yrs, Occu.Agri., 2. Bandu s/o Vithalrao Mundhe, Age : 30 Yrs., Occu.Agri., 3. Kishan s/o Babarao Mundhe, Age : 47 Yrs., Occu.Agril 4. Dnyanoba s/o Gangadhar Mundhe, Age : 21 Yrs., Occu.Agri., 3 5. Gangadhar s/o Sambhaji Mundhe, Age : 45 Yrs., Occu.Agri., All resident of Pimpaldari, Tq. Gangakhed, Dist. Parbhani ..APPELLANTS (Ori.Accused nos.2,3,8,9 & 13) VERSUS The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellants; Mr K.S. Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. (Date of reserving the judgment : 6.1.2010 Date of pronouncing the judgment : 8.2.2010) JUDGMENT (PER P.V. HARDAS, J.) The appellants/original accused nos.1 to 14 who stand convicted for an offence punishable under sections 147, 148, 307 read with sec. 149 and 302 read with sec. 149 of the Indian Penal Code and sentenced to R.I. for one year, R.I. for two years, R.I. for five years and imprisonment for life and to each pay a fine of Rs.500/-, in default of which to undergo simple imprisonment for three months, respectively, by the Ad hoc Additional Sessions Judge-1, Gangakhed, by judgment dated 19.12.2007, in Sessions Trial No.27 of 2005, by these appeals question the correctness of their conviction and sentence. Since the appellants in 4 these three appeals have been convicted under the same judgment, these 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.20 A.S.I. Sopan Majure, who was on P.S.O. duty at the Pimpaldari police station on 29.3.2005, was informed at 7.35 a.m. by P.W. 8 Ankush that his brothers Waliv and Sugriv had been assaulted by the villagers. On receiving the said information, P.W.20 A.S.I. Majure dispatched staff to the scene of the offence. Necessary entry came to be recorded in the station diary. At about 8.00 a.m. the police brought the injured in the jeep to Police Station, Pimpaldari and since the injured were in serious condition and as the Medical Officer was not available at Pimpaldari, P.W.20 A.S.I. Majure sent the injured in the same jeep to the Sub District Hospital at Gangakhed. Instructions were issued for recording the statement of the injured and entry in the station diary was accordingly taken. The extract of the station diary is at Exh.178. P.W.22 A.P.I. Sudke, who was attached to police station, Pimpaldari, was informed by P.W.20 A.S.I. Majure about the incident. P.W.22 A.P.I. Sudke accordingly informed A.S.I. Majure to dispatch police staff and at 8.00 a.m. received another telephone call from A.S.I. Majure in respect of the condition of the injured. P.W.22 A.P.I. Sudke accordingly went to the Sub District Hospital at Gangakhed at about 9.00 a.m. After about five 5 minutes the injured were brought to the hospital. Both the injured were serious but were in a position to talk. P.W.22 A.P.I. Sudke, therefore, requested the Medical Officer to ascertain the condition of the injured to opine whether the injured were in a fit condition to give their statements. The Medical Officer accordingly opined that injured Waliv was conscious and fit to give statement. The aforesaid endorsement is at Exh.145. Thereafter statement of Waliv was reduced into writing and was read over to him and he admitted the contents to be correct. The statement of Waliv is at Exh.192. The Medical Officer at Gangakhed referred both the injured to the Medical College and Hospital at Ambajogai for further treatment. On the basis of the said report station diary entry no.14 was taken at 11.30 a.m. and offence vide Crime No.21 of 2005 was registered under sections 147, 148, 149, 307, 325 and 326 of the Indian Penal Code. P.W.22 A.P.I. Sudke took over the investigation himself. On the same day he visited the scene of the offence and in the presence of two panchas drew the scene of the offence panchnama and from the scene of the offence seized samples on plain mud and mud mixed with blood. The scene of the offence panchnama is at Exh.193. A sketch map of the scene of the offence came to be drawn at Exh.193-A. Statements of witnesses came to be recorded and accused no.1 Maroti and accused no.2 Yashwant came to be arrested and in the presence of panchas their wearing apparel came to be seized vide seizure memos at Exhs.194 and 195. On the same day Sugriv succumbed to his injuries in the hospital at Ambajogai and inquest panchnama came to be drawn. The 6 clothes on the person of the injured Sugriv came to be seized at Exh. 154. On account of death of Sugriv, section 302 of the Indian Penal Code came to be added. During custodial interrogation, accused Yashwant expressed his willingness to point out the place where the stick was hidden and accordingly the memorandum came to be recorded at Exh. 196. Accordingly accused Yashwant led the police and the panch to his house and from inside the house produced one stick which came to be seized under seizure memo at Exh.197. Thereafter accused Maroti expressed his willingness to point out the place where a stick was hidden. Accordingly, memorandum at Exh.198 came to be drawn and accused Maroti led the police and the panch to his house and produced a stick, Article 16, which came to be seized under seizure memo at Exh.199. Supplementary statement of injured Waliv, who was under treatment in the Apex Hospital at Latur came to be recorded on 3.4.2005. Blood stained clothes of injured Waliv also came to be seized. On 10.4.2005 about ten accused came to be arrested and on 11.4.2005 one accused came to be arrested. Clothes of accused Santosh came to be seized under seizure memo at Exh.200, while clothes of Vasanta came to be seized under seizure memo at Exh.201. Clothes of accused Sanjay, Ashok, Sayas, Bandu, Dhondiram, Gangadhar, Kishan, Dnyanoba and Gangadhar came to be seized under seizure memos at Exhs.202 to 210. During custodial interrogation accused Gangadhar expressed his willingness to point out the place where sword was hidden. Accordingly, memorandum at Exh.211 came to be drawn in the presence of panchas. 7 Accused Gangadhar led the police and the panch to his house and produced a sword which came to be seized under seizure memo at Exh. 212. Accused Dhondiram also expressed his willingness to point out the place where Katti (sickle) was hidden. Accordingly memorandum at Exh. 213 came to be recorded and the sickle came to be seized vide seizure memo at Exh.214 on being produced by the accused. Accused Santosh also expressed his willingness to point out the place where a sickle was hidden and accordingly memorandum at Exh.215 came to be recorded and the sickle Article 40 came to be seized from his house on being produced by the accused under seizure memo at Exh.216. Similarly, memorandum of accused Bandu came to be recorded and accused Bandu produced an iron rod Article 43 which came to be seized under Exh.218. Accused Vasant also expressed his willingness to produce an axe and his memorandum at Exh.219 came to be recorded and axe Article 44 came to be seized vide Exh.220. Under memorandum at Exhs. 221, 223, 224, 227 and 229 various weapons came to be seized from the respective accused. The seized articles came to be referred to the Chemical Analyser on 27.4.2005 vide requisition at Exh.233. Further to the completion of investigation a charge-sheet against the accused came to be submitted. 3. On committal of the case to Court of Sessions, Trial Court vide Exh.30 framed charge against the accused for offence punishable under sections 302, 147, 148, 307 read with sec. 149 and 302 read with sec. 8 149 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 22 witnesses. Prosecution has examined P.W.6 Waliv, P.W.7 Shakuntala, P.W.8 Ankush, P.W.12 Balaji and P.W.16 Dinkar as eye-witnesses to the incident. However, only P.W.6 Waliv and P.W.8 Ankush supported the prosecution. From amongst the panch witnesses excepting P.W. 9 Vinayak, panch to the panchnama of the seizure of clothes of Waliv vide Exh.156, none of the witnesses supported the prosecution. The conviction, therefore, rests on the testimonies of P.W.6 Waliv and P.W.8 Ankush and the other corroborating evidence. 4. In order to effectively deal with the various submissions advanced before us by the learned Counsel for the appellants, it would be useful to refer to the evidence of P.W.6 Waliv and P.W.8 Ankush. P.W.6 Waliv, an injured states that he knows all the accused and states that he has three brothers, deceased Sugriv; P.W.8 Ankush and Lahu. He further states that even prior to the incident the relations between him and the accused were strained as they had filed cases against each other. The disputes in between them were on account of the boundary of the agricultural land and the right of way. He states that his father Ramrao had filed case in the Gangakhed Court against Maroti and his brother as they had obstructed their way. He further states that a complaint had been filed in respect of the assault by 9 accused nos.3, 8 and 14 and the accused had been convicted. In respect of the incident he states that on 29.3.2005 at about 6.30 a.m. he and his brother Sugriv were proceeding towards their field for milking cattle. He states that the ladies in the house had been informed to come to the field for collecting the crop of Soyabean and pulses. He states that he and Sugriv were proceeding by foot way situated between Pimpaldari and Borda and adjacent to this way was 33 KV Station. The width of the way was about 10 ft. which was primarily used for passage of bullock-carts. He states that he and Sugriv had passed in front of the house of accused no.1 Maroti and suddenly all the accused came there armed with swords, kattis, iron rods, sickles, axe, sticks and stones. All the accused were lying by the side of the way and all the accused suddenly attacked. Sugriv immediately jumped over loose stones and ran towards the field of Bhaskar Mundhe. While Sugriv was attempting to flee, accused Gangadhar dealt a sword blow on his head and accused Dhondiram dealt a blow of Katti on the legs of Sugriv. On receiving the injuries Sugriv fell on the ground and thereafter accused Bandu assaulted him by iron rod and accused Dnyanoba by stick. Accused Vasant assaulted Sugriv by an axe while accused Santosh assaulted Sugriv by sickle on both his legs. Accused Sanjay assaulted Sugriv on his wrists, hands and legs while accused Sayas assaulted Sugriv on his legs. Accused Yashwant, accused Kishan also assaulted Sugriv on his legs. Accused Gangadhar and accused Vaijnath threw stones and struck Sugriv on his body. Waliv states that on seeing this assault on Sugriv he raised cries for help and 10 went to rescue Sugriv. All the accused immediately started assaulting Waliv. Waliv accordingly sustained injuries on account of the assault. Waliv gives a graphic description of the weapons with which each of the accused was armed and describes how each of the accused assaulted him. He further states that at that point of time Shakuntalabai (P.W.7), wife of Sugriv, Shalubai, P.W.8 Ankush and his niece Renubai arrived there. Upon seeing the assault they started raising cries for help. Ankush accordingly went to the police station, Pimpaldari and narrated the incident to the police. 5. This witness has been cross-examined at length. In the cross- examination he has admitted that he and Sugriv used to go to their field for milking cattle and at the time of the incident they owned about 2 to 3 buffaloes and 10 to 20 cows. He has also admitted that Sugriv was carrying a small container for collecting milk. Waliv was unable to state as to what happened to the container after the incident. He has admitted that there are agricultural fields adjacent to the Pimpaldari - Borda road. He has admitted as true that about eight days prior to the incident Pimpaldari police had registered Crime No.9/2005 against him and his brothers Waliv and Ankush on the allegations of theft of cable wire, electric motor starters on the complaint of accused no.3 Bandu. He has also admitted that the M.S.E.B. had lodged a complaint of theft against him and his two brothers and Crime No.10 of 2005 was registered by the police and mercury lamps, sealed box, L.T. Bracket set, etc. were seized. 11 He has also admitted as true that on the basis of the complaint of accused Vasant offence vide Crime No.15/2005 had been registered against him and his brothers. He has admitted that accused Maroti had filed civil suit No.379 of 2004 against him, his brothers and his father. He has admitted that the incident of assault lasted for about 10 to 15 minutes and his brother Ankush saw the entire incident. He has admitted that none of the accused chased Ankush when he had gone to inform the police. He has admitted that Ankush fled from the scene when Ankush was at a distance of about 50 ft. from him. He has further admitted that despite their hue and cry, none of the neighbouring agriculturists had arrived at the scene of the offence till the accused fled from the spot. He further states that Ankush returned with the police after about half an hour and during that period he had not noticed any villagers arriving at the scene of the offence. He has further stated that before the commencement of the assault he had seen Ankush and the ladies following him. He has admitted that Shalubai and Sakhubai had raised cries for help when the assault started. He has denied the correctness of the contents of the report at Exh.145 that on hearing the cries for help Ankush, Shalubai and Sakhubai came to the spot and raised cries for help and tried to separate the quarrel was not correct. He has admitted that when the police arrived at the scene the police did not inquire from the injured. He has admitted that the saris of the ladies were not stained with blood. He has also admitted that the ladies were not interrogated in his presence. He has admitted that the distance between him and Sugriv 12 was about 30 to 40 ft. and he had stopped at the place when the assault on Sugriv commenced. He has admitted that all the accused except accused Gangadhar started assault on Sugriv after Sugriv had fallen down as a result of blow by sword given by accused Gangadhar. He has admitted that accused Gangadhar had dealt the blow of sword on the back of the head of Sugriv. He has admitted that he was in a position to see on which part of the body Sugriv was being assaulted and by which accused. He has admitted that he had requested the accused not to assault Sugriv but the accused started assaulting him. He has further admitted in cross-examination that accused Gangadhar and accused Vaijnath had lifted stones from the stack of stones and had thrown them on Sugriv. He has admitted that none of the accused had dealt blows on his head. Omission has been duly proved that he had not stated in his report about his father filing case against accused Maroti on account of obstruction of right of way. He has admitted not to have stated that his father had lodged report against accused no.3 Bandu, accused no.18 Kishan and accused no.14 Vaijnath about the assault. He has admitted to have stated in his report that he had asked the ladies in the family to follow them immediately in order to collect the Soyabean crop and the pulses. Omission has been duly proved that he had not stated that the accused were lying in wait by the side of the way. Omission has been duly proved that he had not stated in his report that Sugriv ran towards the way where the stones were stacked and in the direction of the field of Bhaskar. Omission has been duly proved that he had not stated that 13 while Sugriv was running away , accused Gangadhar dealt a blow of sword on his head and Dhondiram assaulted him by sickle on his leg. 6. The report at Exh.145 is a brief report which gives the names of all the accused and refers to the assault on him and his brother Sugriv. This report obviously is bereft of the various details in respect of the assault, which were elicited in the cross-examination of this witness. 7. Prosecution has examined P.W.8 Ankush, brother of P.W.6 Waliv. He too deposes on similar lines as that of P.W.6 Waliv. He states that he had gone to the police station, on seeing the assault and he had informed the police and had returned with the police and thereafter the injured were shifted to the hospital. In cross-examination he states that it was around 6.30 a.m. when he rushed towards the police station. He further admits that when he had gone towards the police station, Sugriv and Waliv both were injured. He has further admitted that he was aware as to who had injured Sugriv and Waliv and in what manner. He has admitted that some villagers had assembled on the road on hearing cries for help but he did not see whether the villagers had intervened or not. He then states that while he was rushing towards the police station, the villagers were rushing in the direction of the scene of the offence. He has admitted that he was in the police station for about five minutes and information conveyed by him was reduced into writing. He admits to have 14 signed on his statement. He has admitted that the dispute between him and the accused had cropped up about 4 to 6 months prior to the incident. He has denied to have stated portion marked "A" in his statement that some of the accused had lodged a report against him and his brothers in respect of theft of electrical wire and starters. He has admitted that he and his brothers had left for their agricultural field simultaneously. He has admitted that they had taken breakfast early in the morning. He has admitted that his brothers had carried two containers for collecting the milk. He has further admitted that by the time assault on his brother started, he and his other family members had reached in front of the house of accused Maroti. He has admitted that he and his family members rushed towards Sugriv in order to save him. He has then admitted " no villagers came to the spot on hearing hue and cry raised by us." He then states that the accused rushed towards him and thereafter he ran towards the police station. He has denied to have stated portion marked "A" in his statement to the effect that he had witnessed the incident from a distance of 100 ft. Details are then elicited in the cross-examination that accused Vasant had lifted a stone weighing about 10 Kgs. and had struck it on the head of deceased Sugriv. He has admitted that none of the accused assaulted him when he had intervened to save his brothers. 8. Learned Counsel for the appellants have urged before us that in the light of the undisputed strained relations between the complainant and 15 the accused the evidence of P.W.6 Waliv and P.W.8 Ankush is required to be carefully scrutinized and upon such scrutiny both these witnesses would emerge as unreliable witnesses. It is also urged before us that independent witnesses were not examined though were available and the prosecution only examined the interested witnesses. 9. P.W.6 Waliv is a witness who has been injured in the assault. He had witnessed the entire assault on Sugriv. The evidence of P.W.6 Waliv stand corroborated by the prompt first information report and the recitals in the first information report. Evidence of Waliv also to a large extent stands corroborated by the evidence of P.W.8 Ankush. In the first information report at Exh.145 Waliv had disclosed the names of all the accused. Waliv has been cross-examined at length and nothing of any importance has been elicited in the cross-examination to doubt his statement about the assault on him and Sugriv. P.W.6 Waliv has given graphic description of the assault and has named the accused as well as he has described the weapons with which each of the accused was armed. Upon perusal of the testimony of P.W.6 Waliv, we do not notice any flaw in his testimony so as to discard his evidence altogether. It is no doubt true that the relations between P.W.6 Waliv and the accused were strained on account of several cases which had been filed against each other. Inimical or strained relations is a double edged weapon which would equally afford a reason for the assault on the complainant. After carefully scrutinizing the evidence of P.W.6, according to us P.W.6 16 emerges unscathed and at the close of his cross-examination we find that implicit reliance can be placed on the testimony of P.W.6. Both, P.W. 6 Waliv and P.W.8 Ankush have admitted that none of the villagers had assembled at the scene of the offence in response to the cries for help. Therefore, failure of the prosecution to examine any independent witnesses, according to us is not vital to the prosecution. Prosecution had examined independent witnesses but none of the independent witnesses supported by the prosecution and were declared hostile. In fact, in this case ten witnesses were declared hostile and were cross- examined. 10. It was next urged before us that there is no evidence to indicate that there was a meeting of mind and that the accused had shared a common object of assaulting deceased Sugriv and Waliv. The fact that all the accused armed with deadly weapons at about 6.30 in the morning were lying in wait for Waliv and Sugriv and on immediately seeing Waliv and Sugriv, all the accused started their assault is itself an indication that the accused had shared the common object of committing murder of deceased Sugriv and also committing murder of P.W.6 Waliv. However, miraculously P.W.6 Waliv survived the assault while Sugriv succumbed to the injuries. The fact that the accused who belonged to different families had assembled together and were armed with deadly weapons is a sure pointer to the fact that the accused had shared the common object of the assembly which was to assault Waliv and Sugriv.