1 Cri.Appeal No.41 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 41 OF 2010 Kawarsingh Kisansingh Bainade, Age : 48 years, Occupation - Business, R/o N-7, CIDCO, Aurangabad ..APPELLANT VERSUS State of Maharashtra, through the Police Station Office, Police Station, Vaijapur, Dist. Aurangabad ..RESPONDENT Mr N.S. Ghanekar, Advocate for the appellant; Mr N.R. Shaikh, Asstt. Public Prosecutor for the respondent; Mr V.D. Sapkal, Advocate to assist Asstt. Public Prosecutor WITH CRIMINAL APPEAL NO.324 OF 2010 Sachin s/o Bhausing Bainade, Age 29 Yrs., Occu. Business, R/o N-9, L-16/4, Shivajinagar, CIDCO, Aurangabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT 2 Cri.Appeal No.41 of 2010 Smt S.S. Jadhav, Advocate for the appellant; Mr N.R. Shaikh, Asstt. Public Prosecutor for the respondent WITH CRIMINAL APPEAL NO.112 OF 2011 Jeevansing Uttamsing Dobhal, Age: 46 yrs., Occupation - Agricultural, R/o Amanatpurwadi, Tq. Vaijapur, Dist. Aurangabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr K.G. Bhosale, Advocate for the appellant; Mr N.R. Shaikh, Asstt. Public Prosecutor for the respondent WITH CRIMINAL APPEAL NO.105 OF 2011 Sanjay Bhagchand Tatu, Age : 35 yrs., Occupation : Agricultural, R/o Amanatpurwadi, Tq. Vaijapur, Dist. Aurangabad ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Mr Joydeep Chatterji, Advocate for the appellant; Mr N.R. Shaikh, Asstt. Public Prosecutor for the respondent 3 Cri.Appeal No.41 of 2010 WITH CRIMINAL APPEAL NO.72 OF 2010 Smt. Ranjana Kishansingh Dumale, Age : 44 years, occ. Household r/o Shirdi, Tq. Rahata, Dist. Ahmednagar ..APPELLANT VERSUS 1. The State of Maharashtra, through Police Station Officer, Vaijapur, Dist. Aurangabad 2. Kavarsingh s/o Kishansingh Bainade, Age : 47 years, occ. Business, r/o N-7, CIDCO, Aurangabad at present Central Jail, Harsool, Tq. & Dist. Aurangabad 3. Sachin s/o Bhausingh Bainade, Age : 30 years, Occ. Business, r/o N-9, CIDCO, Aurangabad at present Central Jail, Harsool, Tq. & Dist. Aurangabad 4. Jeevansingh s/o Uttamsingh Domale, Age : 45 years, Occ. Agriculture, R/o Amanatpur wadi, Tq. Vaijapur, Dist. Aurangabad, at present Central Jail, Harsool, Tq. & Dist. Aurangabad 5. Sanjay s/o Bhagchand Tatu, Age : 31 years, Occ.Agriculture, R/o Amanatpur wadi, Tq. Vaijapur, Dist. Aurangabad, at present Central Jail, Harsool, Tq. & Dist. Aurangabad ..RESPONDENTS 4 Cri.Appeal No.41 of 2010 Mr V.D. Sapkal, Advocate for the appellant; Mr N.R. Shaikh, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. (Date of reserving the judgment : 29.6.2011 Date of pronouncing the judgment : 20.07.2011) JUDGMENT (PER P.V. HARDAS, J.) The appellants in Criminal Appeal No.41 of 2010, Criminal Appeal No.324 of 2010, 112 of 2011 and 105 of 2011, i.e. original accused nos.1 to 4, who stand convicted for offences punishable under section 302, 201 read with sec. 34 of the Indian Penal Code and sentenced to imprisonment for life and to each pay fine of Rs.10,000/-, in default of which to undergo further R.I. for two years and R.I. for three years and to each pay fine of Rs.5000/-, in default of which to undergo further S.I. for six months, by the Additional Sessions Judge-4, Aurangabad, by judgment dated 13.1.2010 in Sessions Case No.274 of 2008, by these appeals question the correctness of their conviction and sentence. Criminal Appeal No.72 of 2010 has been filed by the original complainant 5 Cri.Appeal No.41 of 2010 seeking enhancement of the sentence passed against the present appellants and for compensation. Since all these appeals arise from the same judgment of the Trial Court, all the appeals are being decided by this common judgment. 2. Such of the facts as are necessary for the decision of these appeals may briefly be stated thus :- P.W.13 P.I. Rajeshsingh Chandel, who was attached to the Vaijapur police station as A.P.I., on 31.7.2007 received accidental death report at about 10.30 p.m. at Exh.106. Accordingly, Accidental Death Case No.43 of 2007 was registered and the inquiry was entrusted to P.W. 13 P.I. Chandel. He accordingly proceeded to the Primary Health Centre, Lasur Station along with the staff and on reaching there noticed the dead body of one Kisansing Dumale. When he was about to start the formalities of drawing the inquest panchnama, objection was raised by Premsing Dumale, brother of deceased Kisansing. According to Premsing, the post mortem should be performed at the Vaijapur Hospital. P.W.13 P.I. Chandel, therefore, submitted a letter to the Primary Health Centre at Lasur Station and took charge of the dead body and carried the same to the Vaijapur Government Hospital. The letter is at Exh.107. At the Vaijapur Government Hospital, inquest panchnama of the deceased came to be drawn between 7.30 to 8.00 a.m. at Exh.73 in the presence of panch witnesses. A letter at Exh.108 was submitted to the Medical Officer for carrying out the post mortem. Wife of deceased, namely P.W.1 6 Cri.Appeal No.41 of 2010 Ranjanabai went to the police station and lodged her report at Exh.40. On the basis of the said report an offence came to be registered and the investigation was entrusted to P.W.13 P.I. Chandel. Upon registration of the offence, P.I. Chandel proceeded to the scene of the offence and drew the scene of the offence panchnama between 3.00 to 3.30 p.m. in the presence of panch witnesses at Exh.85. Statements of witnesses came to be recorded thereafter including the statement of Premsing Dumale. One Police Constable produced the clothes of the deceased which came to be seized in the presence of panchas under seizure memo at Exh.76. On 2.8.2007 P.W.13 P.I. Chandel searched for the accused but till 6.8.2007 he could not get any clue about the whereabouts of the accused. On 6.8.2007 statements of other witnesses came to be recorded and on 8.8.2007 a communication came to be addressed to the Tahsildar for drawing the sketch of the scene of the offence. Photographs of all the accused came to be displayed in the police stations of the district in order to arrest them. On 20.8.2007 P.I. Chandel received information about the rejection of the anticipatory bail application filed by the accused. The accused, it appears, thereafter filed an application before the Aurangabad Bench of the Bombay High Court and A.P.I. Chandel accordingly submitted his reply. On 25.8.2007 statement of Bhaulal, Bhagchand and Raju Dumale came to be recorded. On that day the accused appeared in the police station in response to the directions given by the High Court. On 27.8.2007 the accused produced a red coloured Alto Car at the police station and the 7 Cri.Appeal No.41 of 2010 same came to be seized in the presence of panchas vide seizure memo Exh.110. On account of transfer of P.W.13 P.I. Chandel, investigation came to be entrusted to P.W.14 Balkrishna Borkar, a P.I., who at the relevant time, was attached to the Vaijapur police station. Between 6.5.2008 to 31.5.2008 P.W.14 P.I. Borkar visited the village but no other witnesses came forward to give their statements. He drew the panchnama of the inside of the house of accused no.1 at Exh.78 in the presence of panch witnesses. He secured copies of the election result at Exh.118. A letter at Exh.119 was addressed to the Judicial Magistrate First Class, Vaijapur for recording the statements of the witnesses under section 164 of the Code of Criminal Procedure. 3. The investigation thereafter came to be entrusted to P.I. Bindusar Shinde, who during the relevant period was attached to the Vaijapur police station. He searched for the accused after their bail came to be cancelled by the High Court but could not arrest them. On 28.7.2008 P.I. Thorat of L.C.B. produced all the accused in the police station and submitted a report at Exh.124. The accused came to be arrested vide arrest panchnamas at Exhs.125 to 128. A letter came to be submitted to the Judicial Magistrate First Class, Vaijapur at Exh.129 for addition of section 201 of the Indian Penal Code. Certified copies of the registration of the earlier offences against the accused came to be produced at Exhs. 10, 131, 132, 133, 134 and 135. Further to the completion of investigation a charge-sheet against the accused came to be submitted. 8 Cri.Appeal No.41 of 2010 4. On committal of the case to Court of Sessions, Trial Court vide Exh.15 framed charge against the appellants/original accused nos.1 to 4 for offence punishable under section 302 read with sec. 34 and 201 read with sec.34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined fifteen witnesses, while the accused in their defence examined D.W.1 Devising Bainade. The Trial Court upon appreciation of the evidence came to the conclusion that prosecution had proved the offence against the accused beyond reasonable doubt. 5. In order to appreciate the submissions advanced before us by Shri Ghanekar, Smt. S.S. Jadhav, Shri Joydeep Chatterji and Shri K.G. Bhosle, learned Counsel for the appellants in Criminal Appeals No.41 of 2010, 324 of 2010, 112 of 2011 and 105 of 2011 and the learned Asstt. Public Prosecutor and the submissions advanced before us by Shri V.D. Sapkal, learned Counsel for the appellant in Criminal Appeal No.72 of 2010, it would be useful to refer to the evidence of the prosecution witnesses. 6. Prosecution has unfolded its case through the evidence of P.W.1 Ranjanabai, wife of deceased Kisansing. P.W.1 Ranjanabai states that deceased Kisansing had retired from the Army in 2002 and at the time of the incident he was employed by the Shirdi Sansthan as a Security Personnel. Ranjanabai further states that they hail from Amanatpurwadi, 9 Cri.Appeal No.41 of 2010 Taluka Vaijapur and she and her husband were residing along with her in- laws and the three brothers of deceased Kisansing, namely Premsing, Santosh and Dharam. She states that her youngest brother-in-law Dharamsing was residing with them at Shirdi while the other brothers of Kisansing were residing at Amanatpurwadi. She has further stated that her husband was suffering from piles and had taken treatment at the Kamalnayan Bajaj Hospital and the Doctors had accordingly prohibited Kisansing from consuming liquor and from consuming spicy food. She further states that she used to visit their ancestral house at Amanatpurwadi during festivals and on other occasions. She further states that the accused were residents of Amanatpurwadi and accused no.1 Kawarsing holds agricultural land at Amanatpurwadi. Accused no.1 belongs to the B.J.P. political party and was residing at Aurangabad. Accused Kawarsing was an elected Corporator from Aurangabad. Accused Sachin is the nephew of accused no.1 Kawarsing while Jivan and accused Sanjay are also relatives of Kawarsing. She states that on 11.3.2007 elections of the Zilla Parishad in their area had been held. One Lalitabai Bainade, Jaikuwarbai Dongarjal and Dwarkabai Pawar were contesting the elections. Jaikuwarbai Dongarjal was elected while Lalitabai Bainade was defeated. Ranjanabai states that accused Kawarsing was harbouring a feeling that because Kisansing and his family members had not voted his wife Lalitabai, she had been defeated. Accused Kawarsing used to often threaten the family members. Whenever in-laws and brothers-in-law of Ranjanabai used to come to 10 Cri.Appeal No.41 of 2010 Shirdi they used to inform Ranjanabai about the threats. 7. In respect of the incident Ranjanabai states that on 31.7.2007 she along with her husband deceased Kisansing had started from Shirdi at 2.00 p.m. for going to Amanatpurwadi because of the procession of Goddess Laxmi. She states that they reached Amanatpurwadi at about 5.30 p.m. and after taking tea in the house they proceeded to the temple of Goddess Laxmi at about 6.00 p.m. She further states that she was accompanied by all her in-laws and the wives of her brothers-in-law. She states that they offered prayers at the temple and thereafter had gone to the Hanuman temple which was nearby. When they were in the Hanuman temple, at about 7.30 to 7.45 p.m., accused Kawarsing Bainade (accused no.1) came there and asked Kisansing to accompany him informing him that there was a function of "Kanduri" at his house (Kanduri is a festival in which the sacrificed goat is slaughtered and cooked mutton is served to the invitees.) P.W.1 Ranjanabai informed Kawarsing that the said Kanduri festival was also being celebrated at her house, thereupon accused no.1 Kawarsing told Ranjanabai that he himself would reach deceased Kisansing at his house after the function. Deceased Kisansing, therefore, accompanied accused no.1 Kawarsing while P.W.1 Ranjanabai and others returned back to their home. Ranjanabai waited till about 8.30 to 9.00 p.m. and thereafter asked her brother-in-law Premsing to search for Kisansing in the village. Premsing accordingly proceeded on his motorcycle and while Premsing was about 11 Cri.Appeal No.41 of 2010 to leave on his motorcycle, he received a call on his cell phone. Ranjanabai inquired from Premsing as to who had called and Premsing informed her that he had received a telephone call from Raju Ratansing Dumale, who had informed him that accused no.1 Kawarsing, accused no.2 Sachin, accused no.4 Sanjay and accused no.3 Jivan were assaulting Kisansing in the house of accused no.1 Kawarsing. Premsing thereafter immediately left for going to the house of accused no.1 Kawarsing. Premsing returned back after about an hour and informed Ranjanabai that whereabouts of Kisansing could not be located. Ranjanabai states that thereafter she had gone to the house of accused no.1 Kawarsing but none of the accused were present in the house except brother of Kawarsing by name Devising (D.W.1). She states that she inquired from Devising about Kisansing and Devising informed her that there was some hot exchange between Kisansing and accused Kawarsing and in the incident Kisansing had sustained some injury and, therefore, Kisansing had been taken to the hospital. She states that she inquired from Devising as to who had taken Kisansing to the hospital and Devising informed her that accused no.1 to 4 had taken Kisansing to the hospital of one Dr. Jivan at Lasur Station. Since Premsing had already visited the hospital of Dr. Jivan and had not noticed Kisansing there, Ranjanabai and Premsing returned home. Thereafter Premsing telephoned the police station and was told to come to the police station for lodging a report. Ranjanabai and Premsing, therefore, proceeded to the Vaijapur police station on motorcycle of Premsing and while so 12 Cri.Appeal No.41 of 2010 proceeding they noticed a police jeep at the Shivrai cross roads. Premsing stopped the jeep by raising his hand and informed the police officials that he was proceeding to the Vaijapur police station for lodging a report in respect of deceased Kisansing. The police informed Premsing that they have received information that dead body of Kisansing was lying in the Government Hospital at Lasur Station. Premsing, therefore, dropped Ranjanabai at the residence and Premsing accompanied by his other two brothers proceeded to the hospital at Lasur Station. Ranjanabai states that on the next day at about 6.00 a.m. she had gone to the Government Hospital at Vaijapur and had seen the dead body of her husband Kisansing and had noticed injuries. She states that the dead body was handed over to them after post mortem had been performed and thereafter she had gone to the Vaijapur police station and lodged her complaint at Exh.40. She has identified the clothes which deceased Kisansing was wearing at Articles 1, 2 & 3. 8. In cross-examination she has denied the suggestion that her husband used to consume the quota of liquor which was allotted to him from the Military canteen. She has denied to have stated portion marked "A" in her statement in which she had stated that her husband was not consuming liquor because he was taking treatment in the Kamalnayan Bajaj Hospital for piles. In further cross-examination she has denied to have stated portion marked "B" in her statement in which she had stated that her husband used to consume liquor while serving in the Military but 13 Cri.Appeal No.41 of 2010 stopped consuming liquor after leaving the services. She has denied to have stated portion marked "C" in her supplementary statement in which she had stated that liquor was not available at Amanatpurwadi. She has admitted that neither her name nor the name of her husband deceased Kisansing was included in the voters list of village Amanatpurwadi. She has admitted that her name as well as the name of her deceased husband were included in the voters list of Shirdi Circle and she had voted in Shirdi in 2002 and 2007. She has denied the suggestion that deceased Kisansing was owning a cell phone and the number was 9975919394. She has admitted that P.W.12 Bhaulal Meher and Bhagchand Meher are the uncles of her husband deceased Kisansing. She has further admitted that Bhaulal was not residing at Shirdi in the same locality where she was residing, but was residing at Kalika Nagar, Shirdi. She has also admitted that the relations between her husband deceased Kisansing and Bhaulal were cordial. She has admitted that she had never met accused Kawarsing prior to the day of the incident and had not talked to him earlier. She has admitted that after declaration of the results of the election of 2007 she had returned to Amanatpurwadi after about ten days. She has admitted that P.W.11 Bhagchand resides near the house of Premsing. She has admitted that P.W.5 Ranjeet Rajput is related to her while Raju Ratansing Dumale is cousin of deceased Kisansing. She has denied to have stated portion marked "D" in her statement to the effect that after offering prayers at the temple of Goddess Laxmi they started returning home. She has admitted that when 14 Cri.Appeal No.41 of 2010 she and others were returning home after offering prayers at the temple they had met Premsing in the village. She has also admitted that they were accompanied by her brothers-in-law Dharamsing and Santosh. She has further admitted that the information which Premsing received on his mobile phone was known to all the family members who were present. She has admitted that none of the other family members volunteered to accompany Premsing to the house of accused no.1 Kawarsing. She has stated that none of the relatives who were present there had used the mobile phone of Santosh for calling Premchand to inquire as to what had happened. She has stated that when she accompanied by Premsing had gone in the village, she had met her father-in-law who was present in the house at Amanatpurwadi village and her father-in-law returned home on the motorcycle of one Vithal Meher. 9. In further cross-examination she has admitted that she does not know how many police personnel were sitting in the police jeep which had met them at the Shivrai cross roads. She has admitted that she had not over-heard the conversation between police and Premsing. She has admitted that she felt that she should immediately visit the Primary Health Centre at Lasur Station and has also admitted that she had not requested the police to permit her to accompany them. She has stated that after Premsing brought her at the house, Premsing went to the hospital along with P.W.11 Bhaulal and P.W.12 Bhagchand. She has further stated that when she had reached home Bhaulal and Bhagchand were already 15 Cri.Appeal No.41 of 2010 present and Raju Ratansing Dumale was also present, who had also accompanied Premsing to Lasur Station. She has also admitted that before she arrived home, P.W.2 Jivansing Dumale was also present. She has admitted that she left her residence only on the next day at 6.00 a.m. for going to the hospital at Vaijapur. She has admitted that she had inquired from Premchand, Santosh and Dharamsing as well as the maternal uncle of Kisansing as to whether a complaint had been lodged with the police. She has further admitted that the police had inquired with the relatives and thereafter had drawn the inquest panchnama. She has admitted the over-writing in the complaint but has denied that originally in the complaint it was mentioned that foul play was suspected in respect of "her brother". She has stated that the police may have inadvertently written "brother" instead of "husband". 10. Omissions have been duly proved in the cross-examination of P.W. 13 P.I. Chandel that P.W.1 Ranjanabai had not stated in her previous statement that her husband used to take all major decisions in the family and that her husband never consumed liquor and that the Doctors had advised him not to eat spicy food. Ranjanabai had not stated in her previous statement that she knew all the accused as they were residents of Amanatpurwadi and that accused no.1 Kawarsing owned land and house at Amanatpurwadi and was a worker of the B.J.P. party. Similarly, Ranjanabai had not stated that accused Jivan and Sanjay were relatives of accused no.1 Kawarsing and that one Sudamsing was real 16 Cri.Appeal No.41 of 2010 brother of accused no.1 Kawarsing, who was the Sarpanch of village. Similarly, omission has been proved that Ranjanabai had not stated that one Jaikuwarbai Dongarjal had been elected in the election and that accused Kawarsing used to feel that because Ranjanabai and her husband had not voted his wife, she had been defeated. Omission has been duly proved that she had not stated that accused no.1 used to threaten Ranjanabai and her family members including her in-laws and that she was informed by her in-laws whenever they used to come to Shirdi. Omission has been duly proved that she had not stated about starting from Shirdi at 2.00 p.m. and reaching Amanatpurwadi at 5.30 p.m. and thereafter proceeding to the temple of Goddess Laxmi at 6.00 p.m. Omission has been duly proved about Premsing receiving a call on his cell phone while he was about to proceed on his motorcycle and that on her inquiry Premsing disclosed to her that the caller was Raju Ratansing Dumale, who had informed that accused Kawarsing, accused Sachin, accused Sanjay and accused Jivan were assaulting deceased Kisansing in the house of Kawarsing. Omission has been duly proved that she had not stated about going to the house of Kawarsing and about Premsing inquiring from D.W.1 Devising and about Devising informing that Kisansing had sustained injury. The above omission, according to us, is not significant in the light of the evidence of D.W.1 Devising, who admits about Ranjanabai visiting the house. Omission has been duly proved that she had not stated that Devising had informed her that Kisansing had been taken to the hospital and about Premsing having 17 Cri.Appeal No.41 of 2010 already visited the hospital of Dr. Jivan and being informed that Kisansing had not been admitted there. Omission has been duly proved about Premsing informing the police and about the police informing Premsing to personally visit the police station for lodging a report. Omission has been duly proved about her visiting the hospital and seeing the dead body of her husband and noticing the injuries. The aforesaid omission, according to us, is an extremely minor omission so also the other omissions pertaining to the receipt of the dead body and the dead body being taken home in an ambulance. Omission has been duly proved that she had not stated that when Kawarsing asked her husband to accompany him she had informed accused no.1 Kawarsing that the Kanduri festival was to be celebrated at their house also. Omission has been duly proved that Kawarsing had informed her that he would himself reach her husband at his house after the function. 11. The evidence of this witness, to a large extent, comprises of embellishments. However, from her evidence we find that the prosecution has proved that accused Kawarsing (accused no.1) met them near the temple and invited deceased Kisansing to attend the Kanduri festival and accordingly deceased Kisansing left along with accused no.1 Kawarsing. In fact, in the light of the defence of the appellants/accused, presence of deceased Kisansing at the Kanduri festival in the house of accused no.1 Kawarsing has been firmly established. The only question that remains is whether deceased 18 Cri.Appeal No.41 of 2010 Kisansing sustained the injuries on account of fall or whether