1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.784 OF 2006 1) Narayan Devidas Deshmukh, Age 59 years, Occupation : Agriculture, (Died on 9-3-2009) 2) Gangadhar Vithal More (Deshmukh) Age 23 years, Occupation : Agriculture. 3) Vinod Waman More (Deshmukh) Age 21 years Occupation : Agriculture. 4) Subhash Devidas Deshmukh, Age 40 years, Occupation : Agriculture. All residents of Bhogaon, Taluka Jintur, District Parbhani. 5) Kishanrao Devidasrao Deshmukh, Age 50 years Occupation : Service, R/o Jintur, Taluka Jintur, District Parbhani. ... Appellants. Versus * The State of Maharashtra Through Police Station Officer, Jintur Police Station, District Parbhani. ... Respondent. __________ 2 Shri. S.C. Bora with Shri. S.S. Bora, Advocates for the appellants. Shri. N.B. Khandare, Public Prosecutor, for the State Shri. R.M. Deshmukh with Shri. S.P. Deshmukh, Advocate permitted to assist the Public Prosecutor. -------- With CRIMINAL APPEAL NO.781 OF 2006 1) Kuber s/o Sheshrao Hulgunde, Age 33 years, Occupation : agriculture, R/o Bhilaj, Taluka Jintur, District Parbhani. 2) Vilas s/o Baliram Hulgunde, Age 32 years, Occupation : agriculture R/o Bhilaj, Taluka Jintur, District Parbhani. 3) Sarjerao s/o Ashroba Hulgunde, Age 25 years, Occupation : agriculture, R/o Bhilaj, Taluka Jintur, District Parbhani. ... Appellants. Versus * The State of Maharashtra. ... Respondent. ________ 3 Shri. V.N. Damle with Shri. Hemant Pawar, Advocates for the appellants. Shri. N.B. Khandare, Public Prosecutor, for the State Shri. R.M. Deshmukh with Shri. S.P. Deshmukh, Advocate permitted to assist the Public Prosecutor. -------- With CRIMINAL APPEAL NO.815 OF 2006 Ramrao s/o Sheshrao Hulgunde, Age 41 years, Occupation : Agriculture, R/o Bhilaj, Taluka Jintur, District Parbhani. ... Appellant. Versus The State of Maharashtra. ... Respondent. _______ Shri. A.H. Kapadia with Shri. V.N. Damle and Shri. Hemant Pawar, Advocates for the appellants. Shri. N.B. Khandare, Public Prosecutor, for the State Shri. R.M. Deshmukh with Shri. S.P. Deshmukh, Advocate permitted to assist the Public Prosecutor. ________ 4 With CRIMINAL APPEAL NO.394 OF 2007 * The State of Maharashtra, Through : Police Station Officer, Police Station, Jintur, Taluka Jintur, District Parbhani. ... Appellant. Versus 1) Narayan Devidas Deshmukh, Age 59 years, Occupation : Agriculturist, R/o Bhogaon, Taluka Jintur, District Parbhani. (Died on : 9-3-2009) 2) Gangadhar Vithal More (Deshmukh), Age 23 years, Occupation and resident of As above. 3) Vinod s/o Waman More (Deshmukh), Age 21 years, Occupation & Resident of As above. 4) Balaji @ Narendra S/o Narayan Deshmukh, Age 19 years, Occupation and resident of As above. 5) Kuber S/o Sheshrao Hulgunde, Age 33 years, Occupation and resident of As above. 6) Kashinath Sheshrao Hulgunde, Age 30 years, Occupation and resident of As above. 5 7) Sharad Sheshrao Hulgunde, Age 25 years, Occupation and resident of As above. 8) Vilas S/o Baliram Hulgunde, Age 32 years, Occupation : Agriculturist, R/o Bhogaon, Taluka Jintur, District Parbhani. 9) Sarjerao Ashroba Hulgunde, Age 35 years, Occupation and resident of As above. 10) Kailash S/o Marotrao Hulgunde, Age 25 years, Occupation and resident of As above. 11) Gopal Devidas Deshmukh, Age 45 years, Occupation : Agriculturist, R/o Bhogaon, Taluka Jintur, District Parbhani. 12) Subhash S/o Devidas Deshmukh, Age 40 years, Occupation and Resident of As above. ... Respondents. ________ Shri. N.B. Khandare, Public Prosecutor, for the appellant – State. Shri. R.M. Deshmukh with Shri. S.P. Deshmukh, Advocate permitted to assist the Public Prosecutor. 6 Shri. S.C. Bora with Shri. S.S. Bora, Advocates for respondent Nos.1,2,3 and 12. Shri. Hemant Pawar, Advocate for respondent Nos. 5 to 10. Shri. Hemant Pawar, Advocate appointed for respondent Nos.4 and 11. ________ CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. DATE ON WHICH JUDGMENT RESERVED : 27th AUGUST 2009 DATE ON WHICH JUDGMENT PRONOUNCED : 16th SEPTEMBER 2009. JUDGMENT : (PER NARESH H PATIL, J.) 1) All these four criminal appeals are being disposed of by a common judgment and order as they arise out of the same incident. 2) The 2nd Ad-hoc Additional Sessions Judge Parbhani framed charges against original accused Nos.1 to 15 on 7-12-2005. The accused No.14 – Baloo @ Harihar died on 13-8-2006. The charge was 7 framed for offences punishable under sections 148, 341/149, 504/149, 302/149 and 307/149, 323, 324/149 of the Indian Penal Code. The charge was read over to the accused. The accused pleaded not guilty. Purshis Exhibit 88 was filed regarding death of Baloo @ Harihar. Therefore, the learned trial Court put an endorsement of abatement of trial against accused No.14. 3) Briefly, the prosecution case is summarized as under : 4) There were cross complaints against accused No.5 and Sundar Khillare, his brother and mother filed by each others. By judgment and orders dated 8-7-2004 both the accused persons were acquitted from their respective cases. Both the accused persons charged in two cases returned to their respective home towns i.e. Bhilaj. It is alleged that in the evening accused No.5 Ramrao Hulgunde and others celebrated their acquittal by taking out a procession in the tractor and jeep. Musical band was also played, there was beating 8 of drums and bursting of crackers. The tractor was owned by accused 13 Subhash Deshmukh and the jeep was belonging to accused No.5 Ramrao. Accused Nos.1 to 4 and 6 to 15 were seen in the procession. A slogan was raised in the procession - “Ramrao Tum Age Badho Hum Tumhare Saath Hain”. It is alleged that there were two political factions in the village Bhilaj; one was headed by accused No.5 Ramrao and another was led by PW 2 Punjaram Hulgunde. The persons, who were part of the procession, were abusing Punjaram Hulgunde, Laxman Kadam, Keshav Hulgunde and others. It is alleged that, Yadav Hulgunde (PW 6), Rama Hari Shelke (PW 9), Gangadhar and others were sitting on the Oata of idol of Lord Lokdoba. As the procession passed by the residence of Laxman, it is alleged that, some persons, who were part of the procession, pelted stones and the persons who had filed complaint were abused and manhandled. On intervention of villagers quarrel was separated. It is alleged that during this procession fists and kick blows were given 9 to Punjaram, Keshav Hulgunde, Rama Hari Shelke, Yadav Hulgunde. Due to intervention no untoward incident at that time had happened. It is alleged that in the said procession accused No.1 Narayan Deshmukh, Gangadhar, Vinod More, Bajirao Narendra Deshmukh, Gopal Deshmukh, Subhash Deshmukh, Baloo Hari Deshmukh, Kishanrao Deshmukh, all residents of Bhogaon had allegedly participated. 5) It is alleged that after the procession was over, Punjaram Hulgunde, Keshavrao Hulgunde, Laxman Kadam, Rama Hari Shelke and others came to the house of Sundar Khillare. Punjaram Hulgunde narrated the incident to him and suggested him that they should go by auto rickshaw to Shivajirao Deshmukh, who was Zilla Parishad Member and a prominent political activist, for consultation and to take further steps regarding the incident to the police. Thereafter Sunder Khillare, his brother Kailas, Raju, Punjaram, Keshav, Rama Hari Shelke, Yadav Hulgunde, and Ganpat etc. came by auto rickshaw towards 10 Bhogaon. It is alleged that while they were near bridge at the ground of weekly market, Bhogaon, they could notice that accused persons were present there armed with sticks, iron rod, knife, chain etc. The auto rickshaw was stopped by the accused persons. It is alleged that suddenly the accused persons started beating the persons belonging to the group of the complainant with the above stated weapons. During the course of assault, Laxman Kadam suffered injuries and died on the spot. Keshav Hulgunde, Punjaram Hulgunde, Rama Hari Shelke and Yadav Hulgunde suffered injuries. Yadav Hulgunde left the place of incident and went to Shivajirao Deshmukh and came along with him in his car at the place of occurrence. He was dragged from the car by accused No.1 Narayan and others and was threatened and told that he should return back otherwise he would face the same consequences. Keshav Hulgunde was assaulted by knife over abdomen region. Thereafter he fell down. He himself pressed his wound and tried to save his 11 life. His wound was tied by Yadav. It is the prosecution case that Rama Hari Shelke, Punjaram Hulgunde, Keshav Hulgunde all injured persons and deceased Laxman Kadam were lying at the place of occurrence from 10.00 p.m. till 12.00 midnight. Nobody came to their rescue. It is further alleged that accused Narayan, Ramrao and Subhash dropped all the injured persons and deceased at the door steps of Jintur hospital in a jeep belonging to accused No.5 and went away. 6) The incident took place in the night between 8th and 9th July 2004. Doctor was called by the nurse and after examination Laxman was declared dead by the doctor. Intimation of the incident was given to the police station Jintur. The injured were admitted to the hospital. Dr. Pandit was treating Keshav Hulgunde. Police recorded statement of Keshav Hulgunde (Exhibit 115) which was registered as First Information Report and based on which Crime No.150/2004 was registered. Doctor examined Keshav Hulgunde and 12 Punjaram Hulgunde and issued injury report. Looking to their conditions the medical officer referred Keshav Hulgunde and Punjaram to Government hospital at Parbhani. The condition of Keshav Hulgunde was said to be critical. Operation was conducted on Keshav Hulgunde and thereafter he regained his senses. The prosecution alleges that a supplementary statement of Keshav Hulgunde was recorded in Parbhani hospital. Investigation was thereafter handed to PW 15 – Inspector Nimmanwad. Police started investigation and during the course of the same, inquest panchanama of the dead body of Laxman was drawn. Clothes on the dead body were seized and dead body of Laxman Kadam was sent for post mortem. Doctor conducted post mortem and accordingly issued post mortem report. Rama Hari Shelke and Ganpat Kadsinge returned to Jintur hospital. They were examined by the medical officer and accordingly injury reports were issued. Some of the accused were arrested on the same day. Statements of witnesses were recorded. 13 It is alleged that Shivajirao Deshmukh had visited Parbhani between 10.30 and 1.00 hours on 10-7-2004. He met Punjaram Hulgunde in the hospital. Keshavrao Hulgunde was in the operation theatre at that time. Statement of Shivajirao Deshmukh was recorded by police on 10-7-2004. During the course of investigation other accused persons were also arrested. The prosecution claims that at their behest they could recover stick, iron rod, knife from their houses / cattle shed in presence of panchas. The panchanamas were accordingly drawn. The discoveries were made on the information provided by the accused persons. Clothes of Punjaram and Keshav were seized. The seized articles were sent to the Chemical Analyser Aurangabad. After completion of the investigation, charge sheet came to be filed before the Judicial Magistrate, First Class, Jintur. The C.A. reports were received. 7) The prosecution examined in all 15 witnesses. On behalf of the defence, one Sitaram 14 Chavan, Depot Manager was examined as defence witness at Exhibit 200. The prosecution is placing reliance on the other circumstantial evidence, medical opinions, recovery panchanamas, spot and inquest panchanamas, memorandum panchanamas and copy of judgment and order in Regular Criminal Case No.71 of 2001 delivered by the Judicial Magistrate, First Class, Jintur at Exhibit 172 dated 8-7-2004 on which date the accused No.5 Ramrao, Kuber and Kashinath were acquitted. 8) The defence also produced copy of injury report of accused Sarjerao (Exhibit 104), copy of complaint made to the Assistant Registrar against Shivajirao Deshmukh (Exhibit 181). The prosecution also produced copy of judgment in Regular Criminal Case No.2/2005 where under Punjaram Hulgunde and Yadav Hulgunde were acquitted by the Judicial Magistrate, Fist Class Jintur on 8-7-2006 for offences punishable under sections 324, 504 of the Indian Penal Code. 15 9) We have gone through the entire evidence of the prosecution and defence and perused the original record and proceedings and the judgment and order passed by the trial Court. We may refer to the relevant part of the ocular evidence of the prosecution witnesses. 10) PW 2 is Punjaram Hulgunde. He deposed in the examination-in-chief that accused Ramrao, Kuber, accused No.7 Kashinath, accused No.8 Sharad are brothers. Accused 9,10,11 are from brotherhood of accused No.5 Ramrao and himself. Accused No.1 Narayan, accused No.12 Gopal, accused No.13 Subhash and accused No.15 Kishanrao are brothers inter se. Accused No.4 Balaji @ Narendra and deceased accused No.14 Baloo were brothers. They are sons of accused No.1 Narayan. Accused No.3 Vinod is nephew of accused No.1. Accused No.2 Gangadhar is from brotherhood of accused No.1 Narayan. On report of Sundar Bhagoji Khillare, Ramrao was prosecuted, therefore, according to this witness, Ramrao 16 developed enmity against them. The witness gives account of the cross cases, their acquittal and also incident which took place at village Bhilaj. He further deposed that, while the procession was going on many people were seeing the same. He referred to quarrel which took place at Bhilaj between these persons. He then deposed that the witness and others went to the house of Sundar Khillare and narrated the incident to him. The witness and others asked Sundar Khillare to take his auto rickshaw for going to Shivaji Daulatrao Deshmukh. All of them went to Shivajirao Deshmukh at village Bhogaon at about 9.20 to 10.00 p.m. There the witness and others found that Ramrao Hulgunde, Kuber Hulgunde, Kashinath Hulgunde, Sharad Hulgunde, Sarjerao Hulgunde, Vilas Hulgunde, Kailas Hulgunde and others were at bridge of village Bhogaon armed with knife, iron rod, sticks, chain etc. The witness further deposed that while they were going in auto rickshaw all these persons were abusing them. They stopped the auto rickshaw and started 17 abusing and beating them suddenly. 11) According to this witness, Narayan Deshmukh, Baloo Deshmukh gave blow of iron rod to Keshav Hulgunde on his head and on right hand. Subhash Deshmukh inflicted knife blow on the abdomen of Keshav Hulgunde who collapsed. Ramrao Hulgunde, Kuber Hulgunde, Sarjerao Hulgunde were beating by sticks. This witness was also assaulted on his head, below left eye and left hand. He claims to have received injury on his abdomen region and chest. The witness deposed that Ramrao Hulgunde, Kishanrao More, Baloo More started beating Laxman Ghansyam Kadam by sticks and iron rod. Baloo Narayan was having iron rod. Yadav Hulgunde escaped from the place of incident, according to this witness. Sundar Khillare, Raju Khillare and Kailas Khillare ran away from the place of incident. After 4 to 5 minutes Shivaji More, a Zilla Parishad Member came in his car to the place of incident along with Yadav Hulgunde. The accused threatened 18 Shivaji of dire consequences by taking out him from his car and by holding his neck. Thereafter, Shivaji More returned back. The accused were threatening that they would burn all the injured. Out of fear they themselves lifted these injured persons and left them at the hospital in the jeep belonging to Ramrao Hulgunde. It is specifically deposed that Ramrao Hulgunde, Subhashrao More, Gangadharrao More had taken them to Government Hospital Jintur in a white jeep of Ramrao Hulgunde. They dropped them at the steps of hospital and left the place. The witness further says that in the Jintur hospital statement of Keshav was recorded. Thereafter Keshav and this witness were referred to Parbhani hospital by the doctor and police. There was an electric pole by the side of the bridge and the light on the electric pole was on. The witness claimed to have seen the incident of assault in the electric light. The witness identified all the accused present before Court who had assaulted him. The distance between village Bhilaj and Bhogaon is 19 three and half kilometers. Distance between Bhilaj and Jintur is seven kilometers. This witness was cross-examined in detail. During the course of cross-examination the witness deposed that Keshav Marotrao Hulgunde was his real brother but he was taken in adoption. Bhilaj has population of about 1500 while population of village Bhogaon was around 7000 to 8000. Weekly market is held at Bhogaon. The witness used to go to Bhogaon every day. On the day of incident weekly market was held. The statement of this witness was recorded on 10-7-2004. The witness did not disclose the incident to police as he was not asked by the doctor or the police. But further says that he tried to tell the police about the incident but the police did not listen to it. The police reached this witness on 10-7-2004 between 10 and 11 a.m. The witness further deposed that he had no dispute with Ramrao Hulgunde and his brothers regarding the property. Gram Panchayat Bhilaj was in the control of the family of Ramrao Hulgunde since 20 last 10 years prior to the incident. The witness admitted that accused No.5 Ramrao was leading one group of the Gram Panchayat and the witness was leading another group during the Gram Panchayat election. In the Gram Panchayat elections of the year 2000 Raju Khillare contested from his group and he was defeated by the wife of Ramrao Hulgunde, accused No.5. He denied that Shivajirao Deshmukh was the leader of his group. In 1997 Shivaji Deshmukh was elected for Panchayat Samiti. He was elected as Vice President of the Panchayat Samiti. The witness deposed that Shivajirao Deshmukh and Ramrao Hulgunde accused No.5 belonged to different political groups. Village Bhilaj falls in between Jintur and Bhogaon. Criminal cases were instituted against 7 persons from the group of Sunder Khillare and 7 persons from the group of Ramrao, accused No.5. Raju Khillare was driving the auto rickshaw while they were going to Bhogaon. Besides Raju Khillare there were 8 persons in that auto rickshaw. Raju Khillare and 21 Kailas Khillare ran away from the place of occurrence. He denied that on the day of weekly market there used to be heavy traffic in that area and the persons attending weekly market stay at that place till 11.00 p.m. The witness deposed that when they reached near bridge they saw 10 to 15 accused persons. Due to terror of the accused nobody from Bhogaon interfered in the assault. The witness stated that since the time of occurrence till 12.00 midnight he, Rama Hari Shelke, Ganpat Shelke, Keshav Hulgunde, Laxman Kadam were lying at the place of occurrence without talking to each other as they were under tremendous pressure of terror of accused persons. Till 12.00 in the night all the accused were at the place of occurrence. Though Yadav Hulgunde came along with Shivaji Deshmukh but he was there for about 2 to 3 minutes and left the place of occurrence. Curious enough, the witness deposed that no blood was seen from injury of any of the injured persons and no blood fell on the ground of occurrence. Even while 22 lifting the accused persons in the vehicle no blood fell on the ground at that place. It sounds surprising that the accused persons took the injured to Jintur and left them at the place of the hospital. The witness claims that he told the doctor and police that the accused persons had brought them in a jeep to the hospital. Certain omissions are recoded in the statement of this witness. 12) The witness states that he did not tell police that accused Ramrao, Sarjerao and Kuber inflicted blows on his head, chest and hand. As the police did not ask him therefore he did not tell them. He told that some of the accused had stopped them. The witness was unable to state the reasons for these omissions in the statement made to police. The witness was unable to say as to why he did not tell police that accused suddenly assaulted them. He was unable to say as to on which part of body the accused inflicted blows by chain as the witness did not remember at the time 23 when his statement was recorded. The witness denies that there were different political groups in the village; one headed by him and another by Ramrao. The witness denied that there were rival political groups at Bhogaon; one headed by Shivajirao Deshmukh and another headed by accused Narayan, Subhash and Gopal. Certain omissions were recorded regarding assault made by Yadav by stick. The witness deposed that he was not able to specifically say which of the accused had inflicted blow on his chest as 2 – 3 accused assaulted him. He did not receive any bleeding injury on his chest neither he disclosed the same to police. The reason for this, according to the witness, is that the police did not ask him. 13) Another injured witness is Keshav Hulgunde (Exhibit 114). He too narrates the prosecution story as narrated by the earlier witness. Therefore, the same deposition need not be repeated here by us to that extent. The witness deposed in the examination-in- 24 chief that Narayan inflicted blow of iron rod on his head. Accused Baloo Deshmukh inflicted blow of iron rod on his left hand. Accused Subhash inflicted knife blow on his abdomen. Thereafter, Ramrao, Kishan, Baloo started beating Laxman Kadam with sticks. Ramrao and Kishan Hulgunde inflicted stick blows while Baloo Deshmukh inflicted blow by iron rod to Laxman Kadam. Laxman thereafter collapsed and died on the spot. This witness stated that Subhash, Ramrao, Gangadhar took the injured in a jeep of accused Ramrao and dropped them near Jintur Hospital in the mid night. The police recorded his statement which was treated as First Information Report (Exhibit 115). The witness states that due to acute pains names of some of the accused persons could not be disclosed to the police. After he regained senses a supplementary statement was recorded on 10-7-2004 wherein he gave details of the incident. The witness identified knife, article 11 before the Court and rod, article 13 which was used by Narayan. A plain rod, article 25 12 which was used by Baloo. The witness identified the accused before the Court. During cross-examination the witness stated that on 9-7-2004 he was operated in civil hospital Parbhani. Police recorded his statement on 10-6-2004 in the evening. He did not meet anybody from village Bhogaon till his statement was recorded by police. He and Punjaram were admitted in the same ward in `the civil hospital Parbhani. The witness was discharged from the hospital after 25 days. The witness admitted that he did not tell doctor as to who had beaten him. As he was having serious injuries he was unable to talk normally. Police recorded his statement in Jintur hospital within 10 to 15 minutes. Doctor examined him before recording his statement and thereafter his statement was recorded, according to the witness. A crucial statement appears in the evidence of this witness that when his statement was recorded on 10-7-2004 he was not knowing about his earlier statement recorded in Jintur hospital. The witness states 26 that there was acute pain due to injuries, therefore detail facts were not narrated by him when his statement (Exhibit 115) was recorded by police. He admits that he did not state names of accused persons in his statement (Exhibit 115). The fact of accused stopping his rickshaw and assaulting was also not stated by him. Certain contradictions were recorded in the statement of the witness to the extent that besides 15 accused there were 10 to 15 other persons present on the spot. The witness states that besides injured and accused, no other person was present on the spot. The accused suddenly assaulted the injured persons. One blow by knife was inflicted on the stomach of this witness by accused Subhash. He pressed the injury with handkerchief. He collapsed thereafter. But the witness states that he was in his senses even after receiving blows by knife. Narayan inflicted one or two blows by iron rod on his head. The witness narrated the events in the same fashion as disclosed by the earlier witness PW 2 – Punjaram Hulgunde 27 regarding arrival of Shivajirao Deshmukh, regarding the spot of incident and manner of assault. The witness stated that till they were lifted by the accused from the spot,