1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.106 OF 1998 Dnyandeo s/o Dhondiba Bhise age 42 years, occup. Agril. r/o Malthan, Taluka Karjat, Appellant/ori. District Ahmednagar. accused No. 1. versus The State of Maharashtra Respondent. ------ Shri B.P. Suryawanshi Advocate, holding for Shri M.Y.Deshmukh & S.B.Talekar Advocates for appellant-accused. Shri B.V. Wagh, A.P.P. for the Respondent-State. WITH CRIMINAL APPEAL NO.111 OF 1998 01. Narayan Vitthal Waghmare age 53 years, occup.agri. 02. Ajinath Bansi Waghmare Age 51 years, occup.agri. 03. Damu Bansi Waghmare age 38 years, occup.agri. 2 04. Dhondiba Bansi Waghmare age 41 years, occup.agri. 05. Balu Narayan Waghmare Age 28 years, occup.agri. 06. Shankar Lahanu Pawar age 63 years, occup.agri. 07. Subhash Shankar Pawar age 31 years, occup.agri. All r/o Malthan, Tq.Karjat Appellants/ori. District Ahmednagar. accused Nos. 2 to 8. Versus 01. The State of Maharashtra 2. Smt. Vithabai w/o Nana Waghmare age major, occup. household, Respondents/ r/of Malthan, Taluak Karjat, Resp.No.1 is District Ahmednagar. ori.complt. ----- Shri C.K.Shinde, Advocate, for appellants-accused. Shri B.V.Wagh, APP, for Respondent No.1-State. 3 Coram: P.R. Borkar J. Judgment reserved on: 18.11.2009 Judgment pronounced on: 26.11.2009 JUDGMENT 01. These are the two appeals preferred by appellants-original accused. Criminal Appeal No. 106 of 1998 is filed by original accused No.1, whereas Criminal Appeal No.111 of 1998 is filed by original accused Nos. 2 to 8. The appellants are aggrieved by the order of conviction and sentence passed by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No.31 of 1995 decided on 25.3.1998, whereby accused No. 1 Dnyandeo is convicted for offences punishable under Sections 304 (Part II) and is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs. 1,000/=, in default to suffer simple imprisonment for four months. For offence punishable under Section 323 read with section 149 of I.P.C., each of accused Nos.1 to 8 is sentenced to suffer rigorous imprisonment for four months and to pay 4 fine of Rs.500/=, in default simple imprisonment for one month. Accused Nos. 1 to 8 are also convicted for offences punishable under Sections 147 and 148 of I.P.C. and each is sentenced to suffer rigorous imprisonment for four months and to pay fine of Rs.500/= each, in default simple imprisonment for one month. Accused Nos. 2 to 8 are further convicted for offence punishable under Section 325 read with Section 149 of I.P.C. and each is sentenced to suffer rigorous imprisonment for four months and to pay fine Rs.500/= each, in default simple imprisonment for one month. 02. Briefly stated, it is the case of the prosecution, as disclosed in the complaint dated 9.10.1994 (Exh.23) filed by P.W. No.1 Shrawan Nana Waghmare that he was residing at village Malthan, Taluka Karjat, along with his wife and son. His father deceased Nana, two brothers Popat(PW-2) and Bhausaheb (PW-3) were residing in the neighbourhood. On 2.10.1994, accused Nos. 2, 3 and 4 abused PW-1 Shrawan as to why he had lodged complaint against them. At that time, accused 5 No.2 Narayan gave blow with stick on the head of PW-1 Shrawan and accused No. 3 Ajinath gave stick blow on his back. When Shrawan was being beaten, other accused persons i.e. accused No.1 and 5 to 9 came with intention to beat him. At that time, in order to rescue Shrawan, his father Nana and brothers Popat and Bhausaheb (PWs 2 and 3 respectively) intervened, but they were also beaten by the accused with sticks. Accused No.1 Dnyandeo was having iron bar in his hand and he gave blows of it to Shrawan and his father Nana. As a result of blow, Nana became unconscious and accused went away. Thereafter, all the injured were taken to Rural Hospital, Karjat, where Dr. Jambhalkar (PW-11) examained the injured, namely, PW-1 Shrawan, PW-2 Popat, PW-3 Bhausaheb and deceased Nana. It is also the case of prosecution that Vithabai (PW-7 and mother of PW-1 Shrawan) and Shakuntala Mahajan had intervened, but they were also beaten by the accused persons. However, those two lady victims were examined at Primary Health Centre, Chapadgaon, Taluka Karjat lateron. Since condition of injured Nana was serious, he 6 was taken to Civil Hospital, Ahmednagar and he succumbed to injuries there on 10.10.1994. 03. Police registered the crime against accused persons for committing murder of Nana and causing injuries to others. In the complaint, PW-1 Shrawan has stated that he belongs to Scheduled Caste, whereas accused No. 1 was of upper caste and, therefore, it is alleged that the accused have committed offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act"). After death of Nana, police drew inquest panchanama, so also sent his dead body for post mortem. Police also drew spot panchanama, recorded statements of various persons and finally charge- sheet was filed for offences punishable under Sections 147, 148, 323 read with 149, 302 read with Section 149 of I.P.C. and under Section 3(2) (v) of the S.C. & S.T. (Prevention of Atrocities) Act. 7 04. On trial, accused No. 9 Baban Shivram Pardeshi was acquitted of all the charges against him. All other accused were acquitted of the offence punishable under Section 302 read with Section 149 of I.P.C. and also for the offence under the S.C. & S.T. (Prevention of Atrocities) Act. For the offences proved, the Sessions Court passed the order of conviction and sentence as stated in para 1 above and it is this order which is challenged in these two appeals. 05. The prosecution has examined in all eleven witnesses, four of whom are the eye witnesses. PW-1 Shrawan Waghmare, who is the complainant, is examined at Exhibit 22. He stated that on the day of incident at about 7.30 p.m. he was standing near a water reservoir and accused Nos. 3 and 5 came and beat him with sticks. Thereafter rest of the accused, who were standing near the house of Kadatkar, rushed to the spot and they also started beating him as a result of which, he fell down. His father Nana and brothers Bhausaheb and Popat came and tried to intervene, 8 but they were also beaten. Even his mother received injuries. According to PW-1 Shrawan, accused No.1 was holding iron bar and other accused were holding stickss. All accused had beaten his father Nana. Nana received stroke of iron bar on his face as a result of which he fell down and became unconscious. Accused thought that father of the complainant was dead and, therefore, they left the spot. PW-1 further stated that he did not know who had informed the incident to police, but police had come to the village and taken him, his father and two brothers to the hospital at Karjat. Nana was unconscious and, therefore, Medical Officer, Karjat, referred Nana to Civil Hospital, Ahmednagar, but he died in the said hospital on the next day. Shrawan proved complaint lodged by him at Exh.23. 06. Evidence of PW-1 Shrawan is supported by PW-2 Popat and PW-3 Bhausaheb, as also by PW-7 Vithabai-the mother, who are examined at Exhibits 24, 25 and 32 respectively. 9 07. Evidence of these witnesses is supported by Medical Officer Dr. Jambhale (PW-11) who is examined at Exh.42. Dr. Jambhale deposed that he was working as Medical Officer at Rural Hospital, Karjat. On 9.10.1994 at about 2.00 a.m. on the requisition of the police, he examined PW-1 Shrawan, PW-2 Popat, PW-3 Bhausaheb and injured Nana. Shrawan had four injuries as follows. 1. Contusion on right shoulder size 2"x2". 2. Contusion on left hand on dorsem of size 2"x2". 3. Contusion on left arm lower 3rd size 2"x2". 4. C.L.W.on right occipital region 2x1/2"x skin deep. P.W.2 Popat had three injuries which are as under: 1. An abrasion on right elbow joint size 2"x1/2" 2. Contusion on right shoulder joint of size 2"x2". 3. Contusion of neck left side size 2"x2". 10 PW-3 Bhausaheb had received following injuries : 1. Contusion on right arm middle third size 2"x2". 2. Contusion on back on right scuppal of size 2"x2". 3. Contusion on right shoulder size 2"x2". Deceased Nana had following three injuries :- 1. Contusion on scalp on right parietal region size 3"x2". 2. Contusion on left parietal region size 3"x2" Bleeding through ears. 3. Black left eye present. Dr.Jambhale proved the Medical Certificates issued by him at Exhibits 43 to 46. He stated that all injuries were caused within 24 hours and that all injuries, except one injury to Nana, were simple in nature. Those were caused by hard and blunt substance. According to the doctor, injury Nos. 1 and 2 to Nana were simple and third was grievous. Dr. Jambhale has stated that there was bleeding from both the ears of Nana which was sign of intracrenial injury. So, perhaps doctor wanted to 11 say that injury No.1 was serious in nature, though he referred to injury No. 3 as grievous injury. Evidence of Dr.Jambhale clearly indicates that the incident did take place in which PW-1 Shrawan, PW-2 Popat, PW-3 Bhausaheb and deceased Nana sustained injuries. It is stated by doctor that the injuries on the person of Nana and other persons examined by him were possible with stick and those on the person of Nana are possible with sticks and iron rod. According to him, patient Nana was semi-conscious and in drowsy condition. In the cross examination, the witness has stated that the injuries on the person of Nana and others were possible with stones. The injuries on the person of Nana were also possible with with head- on dash. This witness was knowing nothing about internal injuries to Nana and we have evidence about internal injuries of Dr. Pramod Pargaonkar (PW-8) examined at Exh. 33. He conducted post mortem of dead body of Nana. The post mortem notes are proved by him which are at Exh.34. The post mortem notes show that there was fracture on frontal and parietal bones irregular in pieces 12 within area of 9x7 cms x 4 cms. There was subdural hematoma with blood clotting of 250 ml in the vertex cerebral region. The hematoma was spread all over with clot of 2 cms thickness. The cause of death was shock due to fracture to the skull. According to doctor skull fracture was possible due to assault with iron bar. In cross examination, doctor has stated that in a forceful fall, fracture of skull was possible but not of the nature found on Nana's dead body. He also stated that such a fracture was not possible by forcible dash against a wall. The witness has denied the suggestion that multiple cracks are possible to the skull if it is dashed forcefully on a wall or on the ground. So, the possibility of defence version was denied. 08. Presence of Pw-7 Vithabai (Exh.32) at the place of incident gets support by evidence of Medical Officer Dr.Prasad Itkar (PW-6) who proved the medical certificates at Exhibits 30 and 31 issued by him as the Medical Officer,Primary Health Center,Chapadgaon, Taluka Karjat, Dist. 13 Ahmednagar. Vithabai had abrasion on face laternal side of left eye of 2"x1" verticle in direction and there was complaint by her of body ache. Vithabai was examined by doctor on 14.12.1994 on police yadi of the same date. The medical certificate (Exh.30), however, seems to have been issued on 16.12.1994. The age of the injuries was more than 8 days. 09. PW-4 Laxman (Exh.26) is the Circle Inspector. He had prepared the map (Exh.27). Head Constable Bhanudas Thombare (PW-5) recorded complaint Exh.23 lodged by PW-1 Shrawan. PW-9 panch witness Babu Waghmare turned hostile, but PW-10 Police Inspector Shri Balasaheb Khilari who carried out the investigation,proved the panchanamas. 10. It is argued before me by Advocate Shri B.N.Suryawanshi for accused No.1-appellant in Criminal Appeal No.106 of 1998 that although injuries mentioned in the medical certificate is proved by Dr. Jambhale, the weapon is not mentioned therein. He also submitted that there is 14 no evidence to show that Nana was admitted in Civil Hospital, but PW-1 Shrawan has not spoken about the same. It is true that there is no discovery panchanama regarding weapons, but there is simply production of weapons and clothes and their attachment. He also argued that there were no blood stains found on the spot. But, it may be noted that none of the witnesses had bleeding injury. The injuries, as stated earlier, were mainly contusions and abrasions. Even deceased Nana had no external bleeding injury, though there was bleeding from ears when he was admitted in the hospital. Moreover, it may also be noted that the place of the incident is a road, which is used by public at large and as such absence of blood stains does not make any difference. 11. The main argument advanced before me on behalf of accused No.1 is that there is no evidence to show that it was he who had inflicted the fatal blow on Nana. Learned counsel argued that in absence of any evidence indicating that accused No.1 had given fatal blow to Nana, he 15 should not have been convicted of offence punishable under Section 304 part II of the I.P.C. and at the most he could have been convicted for offence under Section 325 read with Section 149 of I.P.C. with other accused. 12. On the other hand, Shri C.K.Shinde, learned Advocate for accused Nos. 2 to 8- appellants in Criminal Appeal No.111 of 1998, argued that only accused No.1 had iron bar and he inflicted the fatal blow on Nana and other injuries on the person of Nana were simple and, therefore, other accused ought to have been convicted of offence punishable under Section 323 of read with Section 149 of I.P.C. and not under Section 325 read with Section 149 of I.P.C. 13. It may be noted that it has come in the evidence of eye witnesses that accused No.1 had iron bar and other accused persons had sticks. So, all the accused were armed with weapons. It was a riot and, therefore under Section 149 of IPC, all will be definitely liable for offence 16 under Section 325 read with 149 of I.P.C. We will have to consider argument whether there is evidence to show that accused No.1 inflicted the fatal injury to Nana. 14. So far as PW-1 Shrawan is concerned, according to his statement, accused Nos. 3 and 5 first came on the spot and started beating him with sticks and rest of the accused came on the scene subsequently and beat him as a result of which he fell down. Thereafter his father and brothers came and they were also beaten by the accused. It was, therefore, argued that Shrawan did not see as to who had inflicted blow on the head of Nana. In cross examination, PW-1 Shrawan stated that since he was receiving blows from accused, he was not attentive as to who came first and who came subsequently. He received first blow on hand and second blow on head. He further stated that initially, accused No.1 was standing in front of his door and other accused were standing behind the wall of house of one Kadatkar. PW-1 Shrawan admitted in his cross examination 17 that his father had collapsed in middle of the road leading to the village. Accused Nos.2 to 9 assembled on the spot first and then accused No. 1 came there. But, that does not necessarily mean that accused No.1 had come there subsequent to beating Nana. 15. It is, however, admitted position that PW-1 Shrawan has no enmity with accused No.1. So far as far as reason for incident in question is concerned, according to PW-1 Shrawan about couple of days before that incident, when he was passing urine, accused No.3 came and beat him for urinating at that place. It is also admitted by PW-1 Shrawan that accused Nos.2 to 8 are from his caste and also from his brotherhood and that is the reason, in fact, why accused are acquitted of the offence under the S.C. & S.T. (Prevention of Atrocities) Act. In the cross examination of PW-1 Shrawan, it was suggested by defence that he was drunk and was abusing the villagers and, therefore, the villagers pelted stones on him. It was also suggested that when Nana had gone to 18 pacify PW-1 Shrawan, Nana was pushed away by Shrawan as a result of which Nana sustained injury to head, but that suggestion is denied. 16. PW-2 Popat stated in examination-in- chief that he had seen accused No.1 giving blow to Nana with an iron rod and because of the blow Nana fell down and became speechless. But he admitted in cross examination that he took about two minutes to reach the spot and on reaching, he saw that his father was lying on the ground and Shrawan was in a standing position. So, it was suggested that he was not the eye witness to accused No.1 giving blow to Nana. 17. PW-3 Bhausaheb has stated in his examination-in-chief that accused No.1 beat his father Nana and as a result thereof, Nana sustained head injury and became speechless. The spot of incident is 40 ft. away from his house. There is nothing on record to show that this witness has not seen accused No.1 giving blow to Nana. In cross examination, Bhausaheb stated 19 that his father did not regain consciousness until his death. He further stated that when he saw his father initially, he was in standing position, but after he was given blows he fell down and at that time he was at a distance of 10 ft. from his father. So, PW-3 witnessed the blow given by accused No.1 to Nana. It was also suggested as defence story that one Anand Waghmare had his land adjacent to that of PW-1 Shrawan and Shrawan had encroached upon portion of land of said Anand and because of that, he had strain relations with villagers. If that is so, that explains why no villager has come forward to support the prosecution case. 18. PW-7 Vithabai in her evidence stated that on the day of incident at about 7.00 to 7.30 p.m. she was doing work in her house and at that time she heard noise of quarrel and therefore her son Popat followed by herself and Bhausaheb came out of the house and witnessed accused No.1 assaulting Nana with iron rod and other accused had sticks. Accused Nos. 1 to 3 and 9 were beating Nana and 20 Shrawan. When she went forward, she saw accused No.1 giving blow of iron rod on the head of Nana who fell down as a result of that blow. It may be noted that in cross examination of PW-7 Vithabai, several omissions are brought on record. Thus she had not stated before police that she had seen accused No.1 giving blow with iron rod to Nana. There are other omissions brought in her cross examination, such as, that she had tried to save her husband by falling on his person and as a result she received injuries. She also stated that she cannot assign any reason as to why there is omission in her police statement about accused Nos. 3 and 9 having given blow to her. She also denied the suggestion that she had not mentioned the name of accused No.9 to the police. So, PW-7 Vithabai has shown distinct tendency to exaggerate, but it appears that core of her evidence is true. She was natural witness to incident that took place near her house. 19. It is argued before this court that somebody from village informed to the police, but 21 that informant is not examined and therefore the complaint of PW-1 Shrawan cannot be considered as F.I.R. However, no question regarding this was put to the Investigating Officer and it is not brought on record in the evidence of either Investigating Officer Balasaheb Khillari (PW-10) or Head Constable Bhanudas Thombre (PW-5) as to how police had been to the village Malthan. In absence of any material, it cannot be said that the complaint (Exh.23) given by PW-1 Shrawan is not the FIR. It is argued before me that the witnesses are exaggerating. If all the accused persons had beaten Nana, he would not have sustained only three injuries. It is possible that there may be some exaggeration on the part of witnesses, but that by itself is not sufficient to discard the prosecution case. I am not satisfied with the argument that the findings of fact recorded by the trial court that it was accused No. 1 who gave fatal blow to Nana, is not based on evidence on record. I am also not convinced by the submission of defence that there is any doubt regarding the same. The trial court has given 22 sufficient reasons in the judgment as to why accused No. 1 alone is convicted of offence punishable under Section 304-part II of I.P.C. and why other accused are convicted of offence under Section 325 read with Section 149. 20. Learned counsel Shri C.K.Shinde, on behalf of appellant Nos. 2 to 8, relied upon the case of Ramdas vs. State of Mah. 2005 (2) Mh.L.J. 453. In the facts of that case, the court was pleased to release accused No. 2, who was convicted for offences under Sections 325 and 323 of I.P.C., on probation. Merely because accused in that case was given benefit of probation as he was on bail for 11 years, it cannot be said that all accused who are on bail for 11 years or more pending appeal should get such benefit irrespective of facts and circumstances of each case. 21. Another case cited by Advocate Shri Suryawanshi for accused No.1 is Virsa Singh vs State of Punjab, AIR 1958 SC 465. He referred to 23 paragraph 12 of the reported case. In fact, ratio therein was considered by the trial court and, therefore, accused was not convicted of offence under Section 302 of IPC, but he was held guilty of offence under Section 304 part II of I.P.C. 22. So, in the facts and circumstances of this case, the order of conviction recorded by the trial court needs no interference. The trial court has considered all aspects properly. 23. At this stage, in criminal appeal No.118 of 1998 filed by original accused Nos. 2 to 8, criminal application No.4146 of 2009 is filed, whereby applicants No.1 to 4-original accused Nos. 2 and 6 to 8 (appellants No.1, 5, 6 and 7 in criminal appeal No.111 of 1998) and PW-1 Shrawan, PW-2 Popat, PW-3 Bhausaheb and PW-7 Vithabai have compromised the matter and sought acquittal of the said accused of the offences which are compoudable. They also sought permission to compound the offence punishable under Section 325 read with 149 of I.P.C. Learned A.P.P. opposed 24 the application, by filing say which is taken on record. 24. Thus, the conviction of accused No.1 Dnyandeo Dhondiba Bhise (appellant in criminal appeal No.106 of 1998) for offences under Sections 324-Part II, 147, 148, 323 read with 149 and 325 read with Section 149 of I.P.C. is hereby confirmed. So far as accused Nos. 2 to 8 (appellants in Criminal Appeal No.111 of 1998) are concerned, this court has found them to have committed offences under Sections 147, 148, 323 read with 149 and 325 read with 149 of I.P.C. However, out of them, accused Nos. 2 and 6 to 8 (appellant No.2 and 5 to 7 in criminal appeal No. 111 of 1998) have entered into compromise and filed application No.4146 of 2009. 25. It is argued before this court that PW-1 Shrawan, PW-2 Popat, PW-3 Bhausaheb and PW-7 Vithabai are the legal representatives and, therefore, they are entitled to compromise the offences under Sections 323 r/w 149 IPC and 325 25 read 149 of IPC even on behalf of