{1} Cri. Appeal 158/2008 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.158 OF 2008 WITH CRIMINAL APPEAL NO.168 OF 2008 WITH CRIMINAL APPEAL NO.193 OF 2008 WITH CRIMINAL APPEAL NO.89 OF 2009 WITH CRIMINAL APPEAL NO.406 OF 2009 WITH CRIMINAL APPEAL NO.618 OF 2009 WITH CRIMINAL APPEAL NO.695 OF 2008 XXXXX CRIMINAL APPEAL NO.158 OF 2008 1. Shivaji Sakharam Bhumre APPELLANTS Age-22 years, Occ-Agriculture R/o Singi, Tq-Basmat Dist-Hingoli 2. Bhagwan Dajiba Bhumre Age-30 years, Occ-Agriculture R/o Singi, Tq-Basmat Dist-Hingoli VERSUS The State of Maharashtra RESPONDENT {2} Cri. Appeal 158/2008 ....... Mr.Swapnil Rathi, Advocate for appellants Mr.D.R.Kale, APP for respondent State ....... WITH CRIMINAL APPEAL NO.168 OF 2008 1. Uttam s/o Maroti Bhumre APPELLANTS Age-60 years, Occ-Agriculture 2. Rajabhau Dattarao Gabare Age-44 years, Occ-Agriculture Both presently in Harsul Jail R/o Singi, Tq-Basmat Dist-Hingoli VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for appellants Mr.D.R.Kale, APP for respondent State ....... WITH CRIMINAL APPEAL NO.193 OF 2008 1. Sitaram s/o Pandurang Gabare APPELLANTS Age-30 years, Occ-Agriculture (Deleted) R/o Singi, Tq-Basmat Dist-Hingoli 2. Chandu s/o Narayan Gabare Age-42 years, Occ-Agriculture {3} Cri. Appeal 158/2008 Both R/o Singi, Tq-Basmat Dist-Hingoli VERSUS The State of Maharashtra RESPONDENT Through Police Station Officer, Police Station, Basmath, Dist-Hingoli ....... Mr.S.S.Chaudhari, Advocate for appellants Mr.D.R.Kale, APP for respondent State ....... WITH CRIMINAL APPEAL NO.89 OF 2009 Saheb s/o Maroti Bhumre APPELLANT Age-35 years, Occ-Nil R/o Central Prison, Aurangabad VERSUS The State of Maharashtra RESPONDENT ....... Ms.Kalpana Mutatkar, Advocate for appellant (Appointed) Mr.D.R.Kale, APP for respondent State ....... WITH CRIMINAL APPEAL NO.406 OF 2009 Sambhaji s/o Deorao Gabare APPELLANT Age-37 years, Occ-Agriculture R/o Singi, Tq-Basmat Dist-Hingoli {4} Cri. Appeal 158/2008 VERSUS The State of Maharashtra RESPONDENT ....... Mr.S.S.Deve , Advocate for appellant (Appointed) Mr.D.R.Kale, APP for respondent State ....... WITH CRIMINAL APPEAL NO.618 OF 2009 Sitaram Pandurang Gabare APPELLANT Age-30 years, Occ-Service R/o Singi, Tq-Basmat Dist-Hingoli VERSUS The State of Maharashtra RESPONDENTS ....... Mr.Joydeep Chatterjee, Advocate for appellant Mr.D.R.Kale, APP for respondent State ....... WITH CRIMINAL APPEAL NO.695 OF 2008 Khemaji s/o Maroti Gabare APPELLANT Age-27 years, Occ-Agriculture R/o Singi, Tq-Basmatnagar Dist-Hingoli VERSUS The State of Maharashtra RESPONDENTS {5} Cri. Appeal 158/2008 ....... Mr.S.B.Pulkundwwar, Advocate for appellant Mr.D.R.Kale, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 6th December 2010 JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants, who are convicted for the offence punishable u/s 148 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year, further convicted for an offence punishable u/s 324 r/w 149 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year and also convicted for an offence punishable u/s 302 r/w 149 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.1000/- each, in default to suffer further RI for four months, and are ordered to undergo all the substantive sentences concurrently, in Sessions Case No.20/2006, vide judgment and order dated 24.08.2008, by the Additional Sessions Judge, Basmathnagar, have questioned the correctness and legality of the said judgment and order. All these appeals arise out of the common judgment and order passed in Session Case No.20/2006 and hence they are being disposed of by this common judgment. 2. Such of the facts, as are necessary for the decision of {6} Cri. Appeal 158/2008 all these appeals, may briefly be stated thus. a) On 08.04.2006, at about 8.00 p.m., one Kashinath Bhumre (PW-10) resident of village Singi, informed police constable Shankar Ingole, who was attached to Shirad Shahapur police out post, that some quarrel had taken place near the house of Madhav Gabare and in turn, police constable Ingole passed the message to API S.S.Rathod (PW-14), who was attached to Kurunda police station. Police Constable Ingole, had also informed that one person is expired and that he was carrying the injured persons to Basmath Rural Hospital. Accordingly, PW-14, API S.S. Rathod, visited the Basmath Rural Hospital and recorded Statement (Exhibit-111) of Jankabai Madhavrao Gabare (PW-1). The said statement (Exhibit-111) was treated as the First Information Report. Thereafter, an offence at Crime No. 36/2006 was registered for the offence punishable u/s 147, 148, 149, 302, 326 and 452 of the Indian Penal Code, against the appellants and others. b) Thereafter, the investigation was taken over by PW-14 API S.S.Rathod. The accused, whose names were disclosed in the FIR, Uttam, Khemaji, Sambhaji, Radhaji, Sitaram and Sahebrao, were put under arrest on 09.04.2006 and clothes on their persons were seized under seizure Panchanama (Exhibit-160 to Exhibit-165). Thereafter spot Panchanama {7} Cri. Appeal 158/2008 (Exhibit-144) was drawn in presence of the witnesses and 3 axes, knifes, sticks, part of plough and soil mixed with blood and plain soil was seized from the spot of the incident. Thereafter, inquest Panchanama (Exhibit-139) on the dead body of Madhav Krishnaji Gabare was drawn. c) The dead body was sent for Postmortem to the Primary Health Centre Shirad Shahapur. Post Mortem was conducted by Dr.Prashant Somani on 09.04.2006. Dr.Somani noticed the following external injuries on the dead body. i) Fracture at Nasal Bridge around 3 cm horizontal by blow ć sharp spliling edge weapon ii) Fracture of forehead above left upper eyelid around 4 cm horizontal iii) Chop laceration ć fracture of heard axcund 12 cm vertical around 10 cm above left ear caused by sharp edge weapon. iv) Chop laceration (fracture) of hard around 14 cm above left ear, vertical size around 8 cam occurred by sharp edged edge weapon. v) Incise injury behind right ear 5X2 cm in size caused by sharp cutting edge weapon vi) incised injury on right ala ear 3 x 2 cm caused by sharp cutting edge weapon. vii) incised injury on occipital region horizontal around 8 x 2 cm occurred by sharp cutting edge {8} Cri. Appeal 158/2008 weapon. viii) incised injury behind left ear 6 x 2 cm caused by sharp cutting edge weapon. ix) Abrasion on left elbow joint 3 x 2 cm all injuries are not more than 24 hours old. On internal examination of the dead body, Dr.Somani noticed the that there was injury to brain of intra cranial hemorrhage present as suborchanoid and intra cerebral hemorrhage with torned blood vessels. Dr.Somani opined that the cause of death is due to head injury and intra cranial hemorrhage multiple fracture, which is homicidal one. d) In the said incident total 9 persons were injured and out of them some were referred to Shirad Shahapur Primary Health Center and some were treated at Basmat Rural Hospital. e) While in custody, accused/appellant Khemaji made a disclosure statement (Exhibit-167) in presence of Pancha witnesses, which led to recovery of some sticks concealed beneath a bridge at Wai. The said articles were seized. Total 22 persons, including the present appellants were arrested in connection with the said offence. During the investigation statements of certain witnesses, including the injured {9} Cri. Appeal 158/2008 witnesses, were recorded. The Muddemal property recovered and seized during the investigation was forwarded to the Chemical Analyzer along with forwarding letter, on 18.04.2006. f) On 19.04.2006, investigation of the said crime was entrusted with Ganesh Sambhaji Jawadwad (PW-15). Jawadwad arrested one Renukabai and Balu @ Maroti and also recorded statements of certain other witnesses. After completion of the investigation and on receipt of the injury certificates and CA report, charge sheet was submitted by the investigating officer before the JMFC, Basmathnagar. JMFC, Basamthnagar, after passing the requisite committal order, committed the matter to the Court of Additional Sessions Judge, Basmathnagar. g) Additional Sessions Judge, Basmathnagar, framed charge (Exhibit-70) against the appellants and others for an offence punishable u/s 302 r/w 149, 307 r/w 149, 326 r/w 149, 452 r/w 149, 147 and 148 of the Indian Penal Code. All the accused denied the guilt and claimed to be tried. To substantiate the charges leveled against the accused, the prosecution examined in all 16 witnesses including – Janakabai – complainant – injured witness and wife of deceased Madhavrao; Sumanbai Gabare and her husband Deorao; Kamal Gabare-injured eye witness and her husband {10} Cri. Appeal 158/2008 Govind; Tauji Gabare – an injured eye witness; Dr.Prashant Somani- Medical Officer who performed the PM on the dead body of deceased Madhavrao and had also examined injured persons; Dr.Prashant Kharate, who had examined other injured witnesses and had issued medical certificates accordingly; Ganesh Madhav Gabare – an injured eye witness and son of deceased Madhavrao; Kashinath Bhumre – who had passed on the message on mobile phone to Police Constable Ingole about the said incident; Shankar Bhumre – A Pancha witness to the Panchanama of place of offence; Sitaram Ingole – A Pancha witness to the seizure of clothes on the persons of the accused persons; Sanjay Chavan – a Pancha witenss to the seizure of clothes on the persons of the injured persons and Pandurang Salunke – A Pancha witness to the memorandum statement of accused Khemaji. h) On appreciation of the evidence, the trial court convicted the present appellants for the offence punishable u/s 302 r/w 149, 324 r/w 149 and u/s 148 of the Indian Penal Code and acquitted all the accused for an offence punishable u/s 147, 307, 452 r/w 149 of the Indian Penal Code. The trial Court also acquitted some of the accused persons other than the appellants for an offence punishable u/s 148, 302 r/w 34 of the Indian Penal Code. The said judgment is impugned in the present appeals. {11} Cri. Appeal 158/2008 3. Admittedly, the State has not preferred any appeal challenging the acquittal of the remaining accused persons. 4. Before we embark upon the submissions advanced by learned counsel for the parties, it is necessary to advert to the evidence of material witnesses, recorded during the trial. 5. It is in the evidence of Dr.Prashant Somani (PW-6), who was attached to Primary Health Center, Shirad Shahapur as Medical Officer on 09.04.2006, that considering the injuries on the person of deceased Madhavrao he has opined that his death is a homicidal one. Since the factum that death of Madhavrao is a homicidal one is not seriously disputed by the appellants before the trial court nor before this Court, we need not dilate on this aspect of the evidence. 6. It is in the evidence of Janakabai PW-1 that deceased Madhavrao was her husband. He was Sarpanch of the village Singi about 15 years prior to the incident and since then accused Khemaji and Sambhaji were on cross terms with him. Later on Laximibai became Sarpanch of the village, who is wife of Nagorao, nephew of the deceased. Since Laximibai became Sarpanch, again accused Khemaji and Sambhaji took out quarrel with the deceased. The incident took place on 08.04.2006 at about 7.30 p.m. At that time she was present in her house along with her husband deceased Madhavrao, her daughter in law-Annapurnabai {12} Cri. Appeal 158/2008 and son Ganesh. At that time, accused Khemaji and Sambhaj came to the door of their house and the remaining accused followed them. Accused Chandu had caught hold of the hands of the deceased, accused Khemaji, accused Sahebrao and accused Sitaram assaulted her husband with axe, accused Uttam assaulted him with katti while accused Rajabhau assaulted him with scythe. Rest of the accused were holding sticks in their hands. Deceased sustained injuries on his face, head, ear and back. Deceased expired on the spot. She had further stated that some of the accused also assaulted her with sticks so also to her daughter in law-Annapurnabai and son Ganesh. She has further stated that the accused persons also assaulted other persons, who were present there. She has also stated that one of the accused picked up small daughter of Govind from a cradle and throw her away. Thereafter all the accused fled from the spot. Injured Ganesh and Govind were referred to Rural Hospital, Basmthnagar from where they were taken to civil hospital, Nanded. She was also taken to the hospital where in the night between 8th and 9th April 2006, her statement (Exhibit-111) was recorded. 7. She has stated in her cross examination that her father in law Krishnaji had 5 sons including her husband- Madhavrao, Deorao, Tauji, Maroti and Rangnath. Accused Khemaji is son of Maroti and accused Sambhaji is son of Deorao. They had two houses in that area which were facing to each other. There is one road in between the two houses. The houses of accused {13} Cri. Appeal 158/2008 Khemaji and Sambhaji are situated on one side of their house. Accused Sambhaji had filed a criminal complaint against Ganesh, Pravin and Govind. There was long standing dispute between the deceased on one side and accused Khemaji and Sambhaji on the other side, since last 15 years. However, no case was ever filed against each other during the said period. Their relations were cordial with the remaining accused till 08.04.2006 i.e. the day of the incident. In further cross examination she has admitted that there was load shedding in the said village at the relevant time. However, she denied the suggestion that there was darkness due to the load shedding and hence she was unable to identify the assailants, as according to her there was sufficient moon light at the relevant time and, therefore, she could identify the assailants. She has further admitted that Ganesh had been to village Wagi for dinner at the relevant time and her son Pravin was out of the house at that time. Certain omissions are proved in her cross examination viz i) accused Khemaji and Sambhaji first came to the door of their house, who were followed by other accused ii) Accused Chandu had caught hold of both the hands of the deceased from behind iii) accused Uttam assaulted the deceased with Katti and accused Rajabhau assaulted him with scythe iv) one of the accused had picked up daughter of Govind from cradle and had thrown her away and v) Accused Khemaji and Sambhaji again took up quarrel with the deceased after Laxmibai became Sarpanch of the village. She has further stated in the cross examination that she had sustained bleeding injuries on head and back. In her {14} Cri. Appeal 158/2008 further cross examination she has admitted that after her husband was assaulted by the accused persons, they assaulted her and hence she became unconscious and regain her consciousness in the hospital. Kashinath and Nagorao shifted her and others to the hospital with the help of police. During the assault on the deceased, no female members went to rescue the deceased so also nobody had came to rescue them. According to her she has no knowledge as to whether in the said incident accused had also sustained injuries or not. 8. It is in the evidence of Kamalbai (PW-4) that on the date of the incident she was present in the house of deceased Madhavrao along with others. All the accused came there with sticks and axes and assaulted deceased Madhavrao. Accused Uttam, Sambhaji, Khemaji and Sitaram assaulted deceased with sticks and axes. In the said assault deceased sustained injuries on his back, ear, head and chest. Thereafter, these accused assaulted her and Ganesh while accused Uttam, Sambhaji, Sitaram and Bhagwan assaulted Janakabai and accused Sahebrao assaulted her father in law. In the said incident accused persons also assaulted Gangabai, Annapurna, Sumanbai, Bapurao and Govind and then the accused fled from the spot. She and other injured persons were taken to Hospital. Madhav expired on the spot. 9. In her cross examination she has admitted that at the time of incident she and her father in law were only present in the {15} Cri. Appeal 158/2008 house and later on her husband Govind came in the house. Certain omissions are proved in her cross examination that at the time of the incident she was present in the house of Madhav along with Janakabai and others. Accused Uttam and Sambhaji assaulted her with sticks accused Sahebrao had chilly powder with him, which he thrown in her eyes she was unable to see as to what was going on. She has further admitted in her cross examination that she became unconscious after she was assaulted. Omission was also stand proved in her further cross examination that accused Uttam, Sahebrao, Sitaram and Sambhaji assaulted her. Omission is also duly pointed out that she has stated before the police that accused Uttam, Khemaji, Sambhaji and Sitaram assaulted the deceased. She has stated in the statement before the police that she saw injuries on the head, ear, back and chest of the deceased. In her further cross examination further omission is proved that she has stated before the police that accused Sambhaji, Sitaram and Bhagwan assaulted Janakabai. She denied that during the said incident Ganesh, Pravin and Govind had assaulted Sambhaji. In further cross examination she has admitted that on the next day of the incident she had been to the hospital around 8.00 a.m. and then was medically examined. She was present at the time of the spot Panchanama. 10. It transpired from the evidence of PW-5 Govind that deceased Madhavrao was his uncle and two years prior to the incident, Laxmibai was became the Sarpanch of the said village {16} Cri. Appeal 158/2008 and since then there was dispute between the complainant party and the accused party. The incident took place on 08.04.2006 at about 7.30 or 8.00 p.m. at the house of the deceased. At that time, he had just came to his house, after closing his shop. He saw all the accused assaulting the deceased with sticks and axes. Accused Chandu had caught hold of the hands of the deceased while accused Sahebrao, Sitaram and Khemaji were giving axe blows to the deceased. Accused Uttam gave blow of Katti and Rajabhau gave blow of a scythe to the deceased and due to the said assault the deceased had fallen on the ground. This witness tried to pacify the situation and in that process accused Sahebrao and Uttam assaulted him with sticks and hence he had sustained bleeding injuries on head. Deceased expired at the spot. This witness felt giddiness due to assault on him and he also fall down. Even thereafter also the accused had assaulted him with sticks. One Rukiminibai threw chilly powder in his eyes and she was instigating other assailants that they should not leave the place unless somebody is killed. In his cross-examination he has admitted that in that evening he was dropped at the place by one Baliram, on motorcycle and then Baliram had left the spot. Baliram had not seen the incident. The incident started about half an hour after he reached at his house. He has admitted that he belonged to the party of the deceased. Certain omissions are brought on record in his cross-examination like there is no reference in his statement given before the police that all the accused were armed with sticks and axes when they started {17} Cri. Appeal 158/2008 assaulting the deceased, accused Chandu had caught hold of the hands of the deceased at the back side when he witnessed the incident and that the deceased remained in the same position during the assault on him by the remaining accused. He did not remember as to whether he had stated in the statement before Police that Uttam and Rajabhau assaulted the deceased with Katti and scythe. Accused Sahebrao and Uttam assaulted him when he intervened and tried to pacify the situation, when they were assaulting the deceased. He has also admitted that in his statement recorded by the police he had not stated that accused Rukminibai had thrown chilly powder in his eyes. He has further admitted that he and Ganesh were kept in one room of the hospital till they were discharged, however during that period no discussion had taken place amongst themselves about the incident of assault. 11. It is in the evidence of PW-8 Ganesh that deceased Madhavrao was his father and the incident took place at about 7.30 to 8 p.m. and at that time he was present in the house along with his mother, father, brother and wife. He has further stated that at that time all the accused, armed with axes and sticks, came to his house and started assaulting his father and when he and his wife Annapurna tried to rescue his father, they were also assaulted by the accused with sticks, therefore, they ran away from the spot towards the house of Namdeo where Uttam, Sahebrao, Khemaji and Bhagwan followed them. Uttam and Sahebrao gave blow of axe on his head. Due to the assault he fall down and when {18} Cri. Appeal 158/2008 he requested for water, the accused persons told that they would urinate in his mouth. Thereafter he became unconscious and was taken to civil hospital, Nanded where he regained consciousness. In his cross examination he has admitted that he had not stated in the statement given before the police that at the time of the incident he was present in his house along with his father, mother, brother and wife, as according to him as he was not asked by the police. Omission has been proved in his statement that in his statement, recorded by the police, he does not disclose that when he and his wife tried to rescue the deceased, the accused assaulted them with sticks. Likewise, that accused Bhagwan and Khemaji assaulted them during the incident. He does not remember as to whether he had stated before the police that Uttam and Sahebrao assaulted on his head with axe. He denied the suggestion that he had not seen the actual incident. 12. In this backdrop heard the submission advanced by the learned counsel for the respective parties. 13. Learned counsel for the appellants in Appeal No. 158/2008 has urged before us that from the evidence on record it is crystal clear that none of the eye witness has referred either presence or participation of appellant Shivaji. It is further urged that though there is passing reference in the evidence of PW-4 about the assault by accused Bhagwan so also in the evidence of PW-8 there is reference about the assault by accused Bhagwan, yet {19} Cri. Appeal 158/2008 omissions are proved in their cross-examinations that they have not disclosed the said facts in their statements recorded by the police. Therefore, it is urged that the appellants Shivaji and Bhagwan be acquitted of the charge, by allowing the appeal. 14. Learned counsel for the appellants in appeal No. 168/2008 has urged that the alleged motive behind the said incident is the dispute over the Gram Panchayat election, however the Gram Panchayat election were held about 2 years prior to the incident and hence it cannot be said that the said election was the motive behind the incident. It is urged that there is inconsistency in the evidence of prosecution witnesses about the weapons held by individual accused and the role alleged against them. It is further urged that though total 9 persons were alleged to be injured in the said incident yet, all the injured are not examined by the prosecution. It is further urged that the witnesses examined are interested witnesses and are close relatives of the deceased and no independent witness has been examined by the prosecution and hence there is suppression of genesis of the incident. It is also urged that the prosecution witnesses have admitted that at the time of incident there was load shedding in the village and hence identification of the appellants is doubtful. It is further urged that the evidence about the alleged role played by accused Uttam and Rajabhau in respect of assault on deceased by Katti and scythe has to be discarded as in the evidence of PW-1 and PW-5, these omissions have been stood proved and also corroborated from the {20} Cri. Appeal 158/2008 evidence of the investigating officer. It is also urged by the learned counsel for the appellants that note has to