1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 814 OF 2006 1 Kamalakar s/o Keshav Gajbhare, age 22 years, occ. Nil., r/o Dhanegaon, Tq. And Dist. Nanded ...Appellant (orig.accused no.1) VERSUS 1 The State of Maharashtra, through Nanded police station (Rural), Tq. & Dist. Nanded ...Respondent (orig. complainant) ..... Shri A.R.Salve, advocate holding for Shri R.B.Salve, advocate for the appellant Shri B.J.Sonwane, A.P.P. for the respondent. ..... W I T H CRIMINAL APPEAL NO. 683 OF 2008 1 State of Maharashtra, through Nanded (Rural) police station ...Appellant (orig. complainant) 2 VERSUS 1 Keshav s/o Govind Gajbhare, age 45 years, occ. Labour, 2 Dilip s/o Waghoji Gajbhare, age 25 years, occ. Labour, 3 Digamber s/o Datta Gajbhare, age 22 years, occ. Labour, 4 Shobhabai w/o Keshav Gajbhare, age 40 years, occ. Household, 5 Lalitabai w/o Navnath Jondhale, age 40 years, occ. Household, All r/o Dhanegaon, Tq. and Dist. Nanded ...Respondents (orig. accused nos.2 to 6) ..... Shri B.J.Sonwane, A.P.P. for the appellant/State. Shri P.S.Shinde, advocate with Smt. S.S.Jadhav, advocate for the respondents. ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 05.08.2009 DATE OF PRONOUCING THE JUDGMENT : 14.08.2009 3 J U D G M E N T : (Per Shrihari P. Davare, J.) 1. Perused. 2. In Criminal Appeal No. 814 of 2006, the challenge is to the conviction of the appellant/accused no.1 for the offence punishable under Section 302 of the Indian Penal Code, and sentence awarded to him to suffer imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine to suffer R.I. for three months, by the judgment and order rendered by the learned Ist Ad-hoc Additional Sessions Judge, Nanded in Sessions Case No. 87 of 2005 on 16.8.2006. By another Criminal Appeal No. 683 of 2008, the appellant/State has challenged the afore said judgment and order dated 16.8.2006 of acquittal of accused nos. 2 to 6 and prayed that they be convicted for the offences for which they were charged and tried for. During trial, accused nos. 1 to 6 were tried for the offences punishable under Sections 147, 148, 302 r/w 149 of the Indian Penal Code, on the allegations that 4 the accused persons were members of an unlawful assembly and in prosecution of the common object of such assembly, they committed riot by deadly weapons, like Katti and committed murder by intentionally and knowingly causing death of deceased Dhammanand on 13.3.2005 at 00.15 hours at Dhanegaon. Accordingly, accused no.1 was convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code; whereas accused nos. 2 to 6 were acquitted from the afore said charges by way of judgment and order dated 16.8.2006 which has been impugned in aforesaid both the appeals. 3. Prosecution story is summarised as follows :- At the out set, it is to be noted that all the accused persons 1 to 6 are residents of Dhanegaon, Taluka and District Nanded and accused no. 2 Keshav and accused no.5 Shobhabai are the parents of accused no.1 Kamalakar. The complainant PW1 Baburao is resident of Balirampur, Taluka Nanded and the uncle of victim Dhammanand. Kailash, PW8 Rashtrapal and 5 deceased Dhammanand are three sons of Sheshrao, who was resident of Dhanegaon at the time of incident and Sheshrao is the real brother of the complainant, namely PW1 Baburao. 4. It is alleged that on 12.3.2005 at about 9.00 p.m. there was a meeting of Mahila Alpa Bhachat Gat near Bouddha Mandir, but all of a sudden electric supply went off. Hence, accused no.1 Kamalakar made inquiry with Kailash, who allegedly was the cause of disconnection of electric supply and thereupon there was exchange of abuses between Kailash and accused no.1 Kamalakar and accused no.1 Kamalakar pushed Kailash who sustained injuries on his person. Thereafter at about 10.00 p.m. on the said date, Sheshrao and his son Kailash went to complainant PW1 Baburao at Balirampur and they lodged report about the afore said incident at Nanded (Rural) police station. Thereafter, Sheshrao took Kailash to Civil Hospital, Nanded for treatment and the complainant PW1 Baburao returned to Dhanegaon at the house of his brother Sheshrao. On the way, deceased 6 Dhammanand met him and PW1 Baburao disclosed the afore said episode of lodging report against accused no.1 Kamalakar. Thereafter complainant PW1 Baburao, deceased Dhammanand and PW8 Rashtrapal sat in front of house of Sheshrao on a cot and were chitchatting. 5. After lapse of some time, accused persons, namely, accused no.1 Kamalakar, accused no.2 Keshav, accused no.3 Dilip, accused no.4 Digambar, accused no.5 Shobhabai and accused no.6 Lalitabai came there at about 11.30 p.m. and made inquiry with Dhammanand why his brother Kailash raised quarrel and why he lodged report to police station and further asked Dhammanand to accompany with them to settle the dispute amicably. Accordingly, deceased Dhammanand accompanied them to the house of accused no.3 Dilip for the purpose of settlement in the matter. It is alleged that, after lapse of about ten minutes, complainant PW1 Baburao and PW8 Rashtrapal went to the house of accused no.3 Dilip on 13.3.2005 at about 00.15 a.m. However, they found 7 that accused nos. 5 and 6 were standing in the door of the house of Dilip and prevented them from entering into the house and pushed them. They noticed that accused no.2 Keshav, accused no.3 Dilip and accused no.4 Digambar caught hold of Dhammanand in the house of Dilip and accused no. 1 Kamalakar was armed with Katti, who inflicted blow of Katti on the neck of Dhammanand and thereby Dhammanand died on the spot instantaneously. Thereafter, it is also alleged that the afore said accused persons rushed towards complainant PW1 Baburao as well as PW8 Rashtrapal to assault them, but they fled away from the scene of offence and rushed towards Nanded (Rural) police Station. 6. Thereafter, it is the case of prosecution that PW1 Baburao lodged report at Nanded (Rural) police station in respect of afore said incident and accordingly, offence under C.R. No. 55 of 2005 came to be registered and criminal law was set into motion. PW12 PSI Manolikar started with the investigation and visited the scene of offence and spot panchanama was 8 prepared. The blood stained carpet, iron rod and blood stains on the spot of incident were seized in presence of panchas under panchanama. He also recorded statements of witnesses. Accordingly, accused persons came to be arrested and their blood stained clothes were seized in presence of panchas. 7. Besides, inquest panchanama of the dead body of deceased Dhammanand was prepared and said dead body was sent to the Civil Hospital, Nanded for postmortem examination. PW11 Dr.Naresh Zanjal performed the autopsy on the dead body of deceased Dhammanand and prepared postmortem notes dated 13.3.2005 at Exh.76. He gave the cause of death of deceased Dhammanand as, “haemorrhagic shock due to chop wound over neck”. The blood stained clothes of deceased Dhammanand were also seized in presence of panchas under panchanama. 8. Thereafter it is alleged that blood stained Katti (article no.3) was recovered at the instance of accused no.1 Kamalakar from his house in presence of 9 panchas under the memorandum panchanama Exhs. 39 and 40 in presence of PW3 Subhash Waghmare. It is further alleged that all muddemal properties were sent to the Regional Forensic Laboratory, Aurangabad through carrier PW10 Head Constable Gonarkar for examination purpose. So also, it is further alleged that PW9 Sanjay Jadhav took the photographs of dead body and also of the spot and said photographs are produced at Exhs. 60 to 67, the negatives at Exh.68 collectively and the receipt thereof at Exh.69. 9. Accordingly, after receipt of reports of postmortem and chemical analysis and after completion of investigation, chargesheet came to be filed against accused nos. 1 to 6 before the Judicial Magistrate, First Class, Nanded and since the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the court of Sessions, the said Sessions Case No. 87 of 2005 was committed to the court of Sessions, Nanded for trial. Thereafter charge came to be framed against accused nos. 1 to 6 at Exh. 17 under Sections 147, 148, 302 r/w 149 of the Indian 10 Penal Code, but they did not plead guilty and claimed to be tried. The defence of the accused persons was of total denial and false involvement in the said case and they claimed to be innocent. 10. Accordingly, prosecution conducted the trial by examining in all 12 witnesses to substantiate the charges levelled against the accused persons as mentioned below :- PW1 Baburao Gajbhare - Complainant and eye witness PW2 Anandrao Gajbhare - Panch witness for inquest and spot panchanamas PW3 Subhash Waghmare - Panch witness for memorandum panchanama Exhs. 39 and 40 regarding seizure of Katti at the instance of accused no.1 Kamalakar PW4 Govind Adapwar - Panch witness in respect of seizure of blood stained clothes of accused no.4 PW5 Chandrakant Jodgand - Panch witness of seizure of clothes of 11 accused nos. 1 to 3, 5 and 6. PW6 Kishan Zunjare - Panch witness to seizure of clothes of victim Dhammanand PW7 Raosaheb Gajbhare - Witness who allegedly saw dragging of victim Dhammanand by accused persons to the house of accused no.3 Dilip PW8 Rashtrapal Gajbhare - Younger brother of victim Dhammanand and eye witness PW9 Sanjay Jadhav - Photographer who took photographs of dead body of Dhammanand and of spot. PW10 Head Constable - Carrier who took the Ram Gonarkar sealed packets of articles and delivered to the Regional Forensic Laboratory, Aurangabad. PW11 Dr.Naresh Zanjal - The doctor who performed postmortem on dead body of deceased Dhammanand on 13.3.2005. PW12 P.S.I. Nivrutti - Investigating Officer. Manolikar 12 11. At the out set, it is to be assessed that the death of Dhammanand was homicidal or accidental. In the said context, the evidence of PW11 Dr. Naresh Zanjal, Postmortem notes Exh.76, Inquest panchanama Exh.36 and Spot panchanama Exh.37 are required to be scrutinized. Coming to the evidence of PW11 Dr. Naresh Zanjal, he stated that he was serving as a Lecturer in the Department of Forensic Medicines, Government Medical College, Nanded on 13.3.2005 and he received the dead body of Dhammanand through police station (Rural) Nanded for postmortem purpose. Accordingly, he conducted postmortem on the said dead body between 8.40 a.m. to 10.00 a.m. on the same day and found the external injuries thereon as described in column no. 17 of the postmortem report. He further stated that the said external injuries were ante mortem in nature. He also stated that on internal examination, he found, brain matter was pale and edematous. Both lungs, edematous liver, pancreas, spleen kidneys were pale. He gave cause of death as haemorrhagic shock due to chop wound over neck. 13 12. He further stated that blood sample of the said dead body was taken for blood grouping. Accordingly, he prepared the postmortem notes, which are produced at Exh.76. He was also shown the weapon Katti Article ‘C’ and he stated that injury mentioned in column no. 17 of the postmortem report can be possible by said Article ‘C’. He also gave the probable time of death i.e. 8 to 12 hours before conducting postmortem. 13. PW11 Dr. Naresh Zanjal was confronted with article ‘C’ Katti and he stated that he is able to distinguish between Katti and Axe and that if the pointed part of weapon is touched to the body then penetrating wound can be possible; whereas incised injury can be possible by any sharp cutting weapon and chop wound can be possible by sharp weapon like axe. He further stated that the weapon article ‘C’ is not just like axe. Axe is a heavy, sharp edged weapon. He also denied the suggestion that chop wound is not possible by Katti article ‘C’. However, he categorically stated 14 that there was only one injury on the neck of the deceased. 14. Considering the testimony of PW11 Dr. Naresh Zanjal, it is amply clear that he withstood with the cross-examination and he assertively stated the cause of death of the deceased as haemorrhagic shock due to chop wound over neck. He established the nexus between the external and internal injuries as stated in postmortem notes Exh.76. No doubt, he admitted that if a person is sleeping on right shoulder, the above injury can be possible by article ‘C’ Katti and that chop wound can be possible by sharp weapon like axe. However, during cross-examination of the complainant and alleged eye witness PW8 Rashtrapal, there is no suggestion on behalf of defence that when deceased was sleeping on the right shoulder, any sharp cutting weapon fell or came into contact with deceased Dhammanand and, therefore, the said admission obtained by defence is of no consequence, and accordingly, evidence of PW11 Dr.Naresh Zanjal established that the deceased Dhammanand 15 succumbed to homicidal death. 15. That takes us to the inquest panchanama Exh. 36 which was produced through PW2 Panch witness Anandrao. He stated that the police personnel prepared the inquest panchanama of the dead body in presence of panchas on 13.3.2005 and he personally saw the dead body and there was injury on the left side of throat having dimensions of 4½ inches and he signed on the said panchanama having its contents true and correct and marked as Exh.36. He further stated that spot panchanama was prepared in presence of panchas by police personnel and he saw the spot of the incident and blood was found on the ground. There was wooden cot and carpet thereon was stained with blood. There were blood stains on the wall. He proved the said panchanama at Exh.37. He further stated that police collected the blood sample from the ground and wall with cotton swab. He further stated that there was one iron rod on the carpet and police personnel seized the said iron rod also under the spot panchanama. He identified the iron rod article ‘A’ and carpet article ‘’B” 16 in the court. 16. As regards the inquest panchanama and spot panchanama Exhs. 36 and 37, the testimony of PW2 Panch Anandrao can be safely accepted, since it has not been shaken in the cross-examination. Moreover, the contents of the inquest panchanama Exh.36 corroborate with the medical evidence on record leading to the position that the death of deceased Dhammanand was homicidal. Thus, it is amply clear that by no stretch of imagination, it can be inferred that the death of deceased Dhammanand occured accidentally. Hence, the learned trial Judge has rightly arrived at the conclusion that deceased Dhammanand met with the homicidal death and no interference therein is warranted. 17. That takes us to further vital question whether accused nos. 1 to 6, at the relevant time, were members of an unlawful assembly and in prosecution of their common object they committed rioting and they were armed with deadly weapons like Katti and they 17 committed murder by intentionally and knowingly causing death of deceased Dhammanand and in the said context, the prosecution relied upon three eye witnesses to the occurrence of incident of murder of deceased Dhammanand, namely PW1 Baburao i.e. complainant, PW7 Raosaheb and PW8 Rashtrapal i.e. younger brother of victim. 18. Coming to the evidence of PW1 Baburao i.e. complainant, he is the resident of Balirampur and is the uncle of victim Dhammanand. He stated that the incident took place on 12.12.2005 at 12 O’ clock in the night. Therebefore, at about 10.00 p.m. he was in his house and his brother Sheshrao and his son Kailash came to him and requested him to accompany with them to police station. Thereupon he inquired about the reason therefor and his nephew Kailash replied that there was a meeting of women in respect of women saving group in village Balirampur near temple of Annabhau Sathe at about 9.00 p.m. However, in the mean while, electricity went off. Hence, accused no.1 Kamalakar started abusing and wandering on the road. 18 Thereupon Kailash inquired with accused no.1 Kamalakar why he was abusing, but accused no.1 Kamalakar assaulted him and pushed him on the road and, therefore, he sustained injury on the face. 19. The testimony of PW1 Baburao further reflects that he accompanied with his brother Sheshrao and nephew Kailash and they filed report in Nanded (Rural) police station. The police referred Kailash to the Government Hospital, Nanded. Hence, his brother Sheshrao and Kailash proceeded towards Civil Hospital, Nanded and PW1 Baburao went to the house of Sheshrao. He further stated that on the way he met Dhammanand, to whom he narrated regarding lodging of the report and they proceeded to house of Sheshrao. Thereafter PW1 Baburao and his nephew Dhammanand sat on the cot in front of house of Sheshrao and were chitchatting. 20. The deposition of PW1 Baburao further reflects that at that time six persons namely, Kamalakar (accused no.1), Digamber (accused no.4), 19 Dilip (accused no.3), Keshav (accused no.2), Shobhabai (accused no.5) and Lalitabai (accused no. 6) came there at the house of Sheshrao and called Dhammanand and disclosed him that his father has gone to police station for filing report and his father and brother Kailash returned to house and asked Dhammanand to accompany with them to settle the matter and took him to the house of accused no.3 Dilip. PW1 Baburao further stated that after lapse of about ten minutes, he and PW8 Rashtrapal went to the house of Dilip. It was at about 11.30 p.m. and from a distance of about 10 feet he saw in the house of accused no.3 Dilip that victim Dhammanand was lying on the cot and accused no.2 Keshav, accused no.4 Digamber and accused no.3 Dilip had caught hold of victim Dhammanand and accused no.1 Kamalakar was assaulting victim Dhammanand and gave a blow of Katti on the neck of Dhammanand. 21. He further deposed that when he tried to enter into the said house of accused no.3 Dilip, accused no.5 Shobhabai and accused no.6 Lalitabai 20 resisted and prevented him to enter into the house and pushed him. PW1 Baburao also stated in the cross- examination that wooden cot shown in the map in the spot panchanama is not visible unless one enters into the house of accused no.3 Dilip. He also stated that victim Dhammanand was killed on the spot by accused no.1 Kamalakar by inflicting blow of Katti. Thereafter all the afore said accused chased after PW1 Baburao, but he and PW8 Rashtrapal ran away and went to police station (Rural), Nanded and PW1 Baburao filed the report which is proved at Exh.33. PW1 Baburao also identified accused persons in the court. 22. During cross-examination, PW1 Baburao admitted that all cited witnesses i.e. PW8 Rashtrapal, Kailash, Sheshrao, Ranjanabai, Ashatai, Sambhaji, Chandrakalabai, Tatyarao, Sainath, Bharabai, Gangabai and Kondabai are his close relatives. Hence, it was urged by the appellant that the said cited witnesses and eye witnesses are the close relatives of deceased Dhammanand and, therefore, they are interested witnesses and hence their evidence cannot be 21 accepted. However, it is settled principle of law that such witnesses cannot be branded as interested witnesses on account of their relations, but their testimony is required to be scrutinized closely and with great care and caution and, therefore, on the said count the testimonies of eye witnesses cannot be discarded. 23. There are few omissions in the complaint filed by PW1 Baburao, which amounted to improvement in his testimony, such as that he stated in his deposition that when accused persons had been to the house of Sheshrao, they disclosed to Dhammanand that his father and brother had been to the house, which is not stated in the report Exh.33. However, the said omission does not appear to be vital and does not go to the root of the matter and considering totality of testimony of PW1 Baburao, it has not been shaken in the cross-examination. 24. Keeping in mind the said aspects and coming to the deposition of another eye witness PW8 22 Rashtrapal, who is the real brother of victim Dhammanand, who is also a child witness, PW8 Rashtrapal stated that it was Saturday on the day of incident and since accused no.1 Kamalakar assaulted his brother Kailash, his father and Kailash went to police station for filing report against accused no.1 Kamalakar and he and his elder brother Dhammanand were present in the house and were waiting for arrival of their father and brother from police station. Thereafter Dhammanand told PW8 Rashtrapal that he would come to police station to see his father and brother and accordingly his uncle PW1 Baburao and Dhammnand returned to house after some time and they were sitting on the cot in front of house and were chitchatting. 25. His testimony also reflects that meanwhile Kamalakar, Digamber, Keshav, Dilip, Shobhabai and Lalitabai came there and accused no.1 told victim Dhammanand that quarrel had taken place between him and his brother and he would settle the dispute and asked Dhammanand to accompany with them and 23 said accused persons took Dhammanand to the house of accused no.3 Dilip. He further stated that after lapse of ten minutes, he and his uncle Baburao went to the house of accused no.3 Dilip and saw that accused no.5 Shobhabai and accused no.6 Lalitabai were standing near the door of house of accused no.3 Dilip and they did not allow them to enter into the house of Dilip. He further stated that by standing in front of the house of accused no.3 Dilip, he saw accused no.4 Digamber, accused no.2 Keshav and accused no.3 Dilip had caught hold of his brother Dhammanand and accused no.1 Kamalakar assaulted victim Dhammanand by blow of Katti on the neck of Dhammanand. He also stated that he and PW1 Baburao tried to enter into the house of accused no.3 Dilip, but accused no.5 Shobhabai and accused no.6 Lalitabai did not allow them to enter into the said house and pushed them. He further stated that all the accused rushed towards PW8 Rashtrapal and PW1 Baburao, but they fled away from the spot. On the way, they met Sheshrao and Kailash and all of them went to police station CIDCO, Nanded and PW1 Baburao filed report Exh.33. 24 26. As regards the location of the incident, he stated in the cross-examination that the house of accused no.3 Dilip is situated at a distance of 40 feet from road and there was a courtyard between the said house and the road. He also stated that they went to the house of accused no. 3 Dilip by road by crossing Ota of Buddha Vihar. The width of door of the house is 2½ x 3 feet. Accused no.5 Shobhabai and accused no.6 Lalitabai were standing near Ota which is in front of the door of the house of accused no.3 Dilip. He further stated that both accused no. 5 Shobhabai and accused no.6 Lalitabai were not standing at the thresh of the door. He also stated that they were trying to enter into the house of accused no.3 Dilip to separate victim Dhammanand from the accused, but accused nos. 5 Shobhabai and accused no. 6 Lalitabai pushed them. However, he categorically stated that he has seen the incident of catching the accused persons to victim Dhammanand for assaulting him from a distance of 5 to 10 feet from the door of house of accused no.3 Dilip. 25 27. Besides that, there are few contradictions i.e. portion marked ‘A’ and portion marked ‘B’ in respect of his statement that accused no.1 Kamalakar was standing in the door and assaulted the deceased Dhammanand by blow of Katti on his neck and committed his murder (portion marked ‘A’) and his statement that he himself, his uncle Baburao, Shobhabai and Baban have seen the incident by standing in the door (portion marked ‘B’). 28. On