- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.307 OF 2006 1. Rajendra @ Pandurang s/o Baburao @ Bhagwan Naikwade, Age 30 years, Occ. Agriculture R/o Nilanga, Taluka Nilanga, District Latur. 2. Kashinath s/o Baburao Jadhav, Age 33 years, Occ. Agriculture & Business, R/o Nitur, Taluka Nilanga, District Latur. (Both presently in Jail) ... APPELLANTS (Original AccusedNos.1 & 8) VERSUS State of Maharashtra through Police Station Officer, Nilanga Police Station, District Latur. ... RESPONDENT ----- Shri S.C. Bora, Advocate for the appellants Shri K.J. Ghute Patil, A.P.P. for respondent ----- W I T H CRIMINAL APPEAL NO.360 OF 2006 1. Vidyabai w/o Rajendra Naikwade, Age 25 years, Occ. Household, R/o Nilanga, Taluka Nilanga, District Latur. - 2 - 2. Baburao s/o Vitthal Jadhav, Age 68 years, Occ. Agriculture, R/o Nitur, Taluka Nilanga, District Latur. 3. Vimalbai w/o Baburao @ Bhagwan Naikwade, Age 55 years, Occ. Nil, R/o Nilanga, Taluka Nilanga, District Latur. ... APPELLANTS VERSUS The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad). ... RESPONDENT ----- Mrs. S.S. Jadhav, Advocate for the appellants Shri K.J. Ghute Patil, A.P.P. for the respondent ----- W I T H CRIMINAL APPEAL NO.567 OF 2006 The State of Maharashtra through S.H.O. Police Station, Nilanga, Taluka Nilanga, District Latur ... APPELLANT VERSUS - 3 - 1. Sow. Vidyabai w/o Rajendra Naikwade, Age 20 years, Occ. Agriculture, R/o Dapka Ves, Nilanga, Taluka Nilanga, District Latur. 2. Vimalbai w/o Baburao @ Bhagwan Naikwade, Age 50 years, Occ. Agriculture, R/o Dapka Ves, Nilanga, Taluka Nilanga, District Latur. ... RESPONDENTS (Original Accused Nos.2 & 12) ----- Shri K.J. Ghute Patil, A.P.P. for the appellant Mrs. S.S. Jadhav, Advocate for respondents ----- CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATED : 9th February, 2010. Date of reserving judgment : 2nd February, 2010. Date of pronouncing judgment : 9th February, 2010. JUDGMENT (PER HARDAS, J.) 1. Criminal Appeal No.307 of 2006 has been filed by the appellants (original accused Nos.1 and 8, who stand convicted for an offence punishable under Sections 148, 447 read with Section 149 of the Indian Penal Code, Section 302 read with Section 149 of the Indian Penal Code, Section 323 read with Section 149 of the Indian Penal Code, by the Additional Sessions Judge, Nilanga, by - 4 - judgment dated 29.3.2006, in Sessions Case No.18/2004. Criminal Appeal No.360 of 2006 has been filed by the appellants (original accused No.2, original accused No.9 and original accused No.10), who stand convicted for an offence punishable under Section 447 read with Section 149 of the Indian Penal Code, Section 148 of the Indian Penal Code and accused No.9 for offence punishable under Section 302 read with Section 149 of the Indian Penal Code. Criminal Appeal No.567 of 2006 has been filed by the appellant/State being aggrieved by the acquittal of the respondents for offence punishable under Section 302 read with Section 149 of the Indian Penal Code. 2. Since the facts in all three appeals are identical and they arise from the common judgment of the trial Court, all the three appeals are being decided by this common judgment. 3. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.15 A.P.I. Madhukar Pawar was attached to the Nilanga City Police Station. On 6.7.2004, P.S.O. Of the Police Station handed over a letter at Exhibit 43 to P.W.15 A.P.I. Pawar. The said letter at Exhibit 43 was in respect of admission of the - 5 - injured in the hospital. Accordingly, a note was taken down in the station diary and as P.W.15 A.P.I. Pawar was intending to go to the hospital, P.W.8 Namdeo arrived at the Police Station and accordingly, his complaint at Exhibit 63 came to be recorded. On the basis of the complaint of P.W.8 Namdeo at Exhibit 63, offence vide Crime No.76/2004 under Sections 302, 307, 447, 504, 506, 147 and 148 of the Indian Penal Code came to be registered. Further investigation in the said offence was undertaken by P.W.15 A.P.I. Pawar. He accordingly rushed to the Civil Hospital at Nilanga and noticed the dead body of deceased and also noticed the admission of an injured in the hospital. Requisition was issued for examination of the complainant at the Rural Hospital, Nilanga. On the next day, P.W.15 A.P.I. Pawar proceeded to the Rural Hospital, Nilanga and drew the inquest panchanama of the dead body of deceased Kishan Fatte at Exhibit 91. The clothes of deceased Kishan Fatte came to be seized under panchanama at Exhibit 37. Dead body of deceased Kishan Fatte was referred to the hospital for post mortem examination. Post mortem on the dead body of deceased Kishan was carried out by P.W.3 Dr. Birajdar, who noticed following external injuries: “1) Contusion over right shoulder back side and suprascapular region, having size of 4 x 7.5 x 1.5. - 6 - Age of the injury was within 24 hours, and caused by hard and blunt object. 2) Contusion over right shoulder back side below the injury No.1, having size of 4 x 10.5 x 1.5 cm. Age of the injury was within 24 hours, and caused by hard and blunt object. 3) Contusion over behind the right ear over mastoid region and nape of neck anterio-laterally having size of 15 x 10 x 4 cm. The age of the injury was less than 24 hours, caused by hard and blunt object, and colour of the injury was bluish black, disclouration on cutting of that injury 150 cc of blood in subcutnious tissue. 4) Clean lacerated wound over occipital region, oblique in direction having size of 8 x 2.5 x 1.5 cm., age of the injury was less than 24 hours and caused by hard and sharp object. 5) Clean lacerated wound over left parieto- occipital region, having size of 6 x 2 x 1.5 cm. Age of the injury was less than 24 hours, caused by hard and sharp object. 6) Contusion over nose with bleeding from both nostrils having size of 5 x 3 x ½ cm. Age of the injury was less than 24 hours, caused by hard and blunt object. 7) Contused wound over forehead in supra-orbital region, having size of 8 x 7 x 3.5 cm. Age of the injury was within 24 hours, caused by hard and blunt object. There was swelling around orbit and colour was - 7 - blackish. Skull bone injury. It was fracture below injury No.7 of the frontal bone. It is irregular inshape with both table depression caused by hard and blunt object.” 4. P.W.15 A.P.I. Pawar proceeded to the scene of the incident and drew the scene of the incident panchanama in the presence of panch witnesses at Exhibit 32. From the scene of the offence, he seized two sticks, blood stained mud and simple mud. He recorded the statements of witnesses. The accused came to be arrested on 8.7.2004 and the other accused came to be arrested on the next day. The further investigation in the said crime was handed over to Dy.S.P. P.W.16 Shri Burase. Since another injured namely Vitthal Fatte was not in a position to give his staement, statement of Vitthal Fatte could not be recorded. Clothes of injured Vitthal came to be seized at Vivekanand Hospital, Latur under panchanama at Exhibit 61. On 18.7.2004, some more accused came to be arrested and the clothes of the accused came to be seized under seizure memo at Exhibit 93. During custodial interrogation, accused Rajendra expressed his willingness to point out the place where the iron rod was hidden by him and accordingly, memorandum at Exhibit 55 came to be - 8 - drawn. Accused Rajendra accordingly led the police and the panch to his house and produced one iron rod which came to be seized under panchanama at Exhibit 56. On the same day, accused Baburao Jadhav also expressed his willingness to point out the place where the stick had been concealed by him. Memorandum of the accused came to be recorded at Exhibit 57 and the sticks came to be seized under panchanama at Exhibit 57 on being pointed out by the accused. The seized articles came to be forwarded to the Chemical Examiner along with requisition at Exhibits 94 and 95. The reports of the Chemical Analyser are Exhibits 97 to 102. Deceased Vitthal also succumbed to his injuries and accordingly, post mortem on the dead body of deceased Vitthal was conducted by P.W.2 Dr. Tandle, who noticed the following injuries: “1) Contused lacerated wound, over right fronto parietal region, having size of 6 x 2 cm. x bone deep with underline bone fracture. 2) Contused lacerated wound over left frontal bone, having size of 5 x 4 cm. x bone deep, with underlying bone fracture. 3) Contused lacerated wound over occipital bone having size of 3 ½ x 1 cm. x bone deep. 4) Abrasion over right ear pinna with avulsion. - 9 - 5) Contused lacerated wound over right mustoid region, with fracture of mastoid bone. 6) Contusion over left upper arm having size 2 x 1 x 1 inch. 7) Black eye on left side having size 1 x 1 inch.” 5. P.W.12 Dr. Tandle opined that cause of death was shock due to head injury. The post mortem report is at Exhibit 34 and the medical certificate relating to the cause of death is at Exhibit 35. Further to the completion of investigation, a charge sheet against the accused came to be filed in the Court. 6. On committal of the case to Court of Sessions, trial Court, vide Exhibit 11, framed a charge against the accused for offence punishable under Sections 147, 148, 447 read with Section 149, Section 302 read with Section 149 of the Indian Penal Code, Section 323 read with Section 149 of the Indian Penal Code, Section 504 read with Section 149 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. 7. The entire case of the prosecution hinges on the testimony of P.W.8 Namdeo, P.W.9 Balu, P.W.10 Govind and P.W. 14 Sunderabai as eye witnesses to the incident. Before we advert to the submissions advanced before us by Shri S.C. Bora, Shri Joydeep Chatterji and Mrs. S.S. Jadhav, learned counsels for the - 10 - appellants and the learned A.P.P. for the respondent/State, it would be useful to refer to the evidence of the prosecution witnesses. P.W.8 Namdeo states that deceased Vitthal Fatte was his uncle while deceased Kishan Fatte was his father. He states that, he along with his uncles and other relatives were cultivating the agricultural land jointly but were separate in mess. He further states that, deceased Vitthal Fatte and Kishan Fatte and one Ram Fatte had purchased land from one Vimalbai at Gat No.35, situated at village Mubarakpur. He states that, on the day of the incident on 6.7.2004 at about 10.00 a.m., he along with his father, his uncle Vitthal and other relatives, Govind, Ram, Balu and Chandar had been to the agricultural land for sowing operations. He states that, after sowing the agricultural land, they stopped their work at about 2.00 p.m. in order to take their lunch. At about 3.00 p.m., they started the sowing operations and at about 3.30 p.m., Ram Fatte proceeded to the house situated in the agricultural land. At about 4.00 p.m., a jeep of white colour of Sumo make arrived from Nilanga side and stopped near their land. Accused Rajendra, accused Vidya, accused Vimalbai, accused Manohar, accused Kashinath and other 3 to 4 persons alighted from that jeep. The said persons were armed with sticks, axe and iron rod. The said persons came towards their field and at that time, another jeep of - 11 - white colour of Trax make arrived from Nilanga side and also stopped near their land. Accused Baburao and other 6 to 7 persons alighted from that Trax jeep. The persons who had alighted from that jeep were armed with sticks and had come to their land. He states that, hin his land, he along with his uncle Vitthal and his father Kishan were ploughing the seeds while P.W. 10 Govind and P.W.9 Balu were sowing the seeds towards the southern side. At that point of time, Ram Fatte also arrived at the agricultural land including the other ladies P.W.14 Sunderabai and others. Accused Rajendra started abusing the complainant and his other relatives asked them not to carry out sowing operation in his land. Deceased Vitthal asked Rajendra to enter the land through the process of Court and thereupon accused Baburao Jadhav exhorted others to assault the complainant and his other relatives. Accused Rajendra dealt a blow of iron rod on the head of deceased Kishan while accused Manohar Jadhav and accused Kashinath Jadhav also dealt blows of sticks on the head of deceased Kishan. On account of bleeding injuries, deceased Kishan fell on the ground but accused Baburao Jadhav dealt a blow on the forehead by a stick. The driver of the jeep arrived at the scene and dealt blows of axe on the head of Kishan. The absconding accused Manohar Jadhav and Kashinath Jadhav also - 12 - dealt blows on the head of Vitthal by sticks. The driver of the Sumo jeep dealt two blows by an axe on the head of Vitthal. P.W.8 Namdeo states that, the accused Vimalbai then gave a blow by sticks on his thumb. The assailants also assaulted P.W.9 Balu, P.W.10 Govind and others. P.W.8 Namdeo stastes that, thereafter he lodged his complaint at the Police Station. 8. In cross-examination, P;W..8 Namdeo has admitted that accused Rajendra asked them not to carry out the sowing operations. He was confronted with portion marked ‘A’ and ‘B’ in his cross-examination which he denied to have stated. He has denied the suggestion that he was aware that the dispute between them had been settled by the District Court. Omission has been duly proved that he had not stated : (1) that at about 4.00 p.m. one jeep arrived there of white colour from the Nilanga side and accused Rajendra, Vidya, Vimalbai, Kashinath, Manohar and other 3 to 4 persons alighted from that jeep armed with sticks, axe and iron rods, (2) he had not stated in his previous statement about the arrival of white colour Trax jeep from Nilanga side and from the said jeep accused Baburao Jadhav and other 6 to 7 persons alighted armed with weapons in their hands, - 13 - (3) he had not stated in his previous statement that he along with his uncle Vitthal and his father Kishan were sowing seeds in the northern side of the agricultural land, (4) he had not stated that Ram Fatte had arrived at the land as also Sunderabai and the other ladies, (5) he had not stated that accused Rajendra abused and thereafter asked them not to carry out the sowing oeprations, (6) accused Baburao exhorted the other accused to assault and thereafter accused Rajendra dealt a blow of iron rod, (7) he had not stated in his previous statement that accused Manohar and Kashinath also assaulted deceased Kishan on his head by sticks, (8) he had not stated that accused Baburao Jadhav dealt a blow on the forehead of Kishan after Kishan had fallen on the ground, (9) he had not stated in his previous staement that the driver of the Sumo jeep assaulted Kishan and Vitthal by axe on their head, (10) he had not stated that accused Vimalbai assaulted him on his left thumb. 9. In further cross-examination, he has admitted as - 14 - follows : “It did happen that there was assault by driver of Sumo jeep by means of axe and my father sustained injuries and fell on the ground.” 10. Prosecution has also examined P.W.9 Balu, P.W.10 Govind and P.W.14 Sunderabai. P.W.9 Balu also deposes on similar lines as that of P.W.8 Namdeo. He identifies the accused as the assailants who were unknown at the time of the incident. P.W.10 Govind also deposes about the assault as is deposed to by P.W.8 Namdeo but identifies the accused as the assailants. P.W. 14 Sunderabai also refers to the accused and ascribes the overt act to each of the accused. She only could identify accused Rajendra and states that she was in a position to identity the other unknown assailants. 11. On the basis of the admission given by P.W.9 Balu and P.W.14 Sunderabai that the assailants were unknown to them, learned counsel for the appellants have urged before us that in the absence of a test identification parade, the identification of the assailants for the first time in Court would be rendered valueless particularly as the identification in the Court was made after a lapse - 15 - of considerable period. As pointed out by us above, P.W.8 Namdeo and P.W.14 Sunderabai in no uncertain terms stated about the names of the assailants as well as the overt act attributable to each of the accused. Moreover, the First Information Report at Exhibit 63 came to be lodged by P.W.8 Namdeo within matter of three hours. Namdeo names the assailants in the First Information Report and, therefore, according to us, a stray admission by P.W.9 Balu and P.W.14 Sunderabai that the assailants were unknown to them, would not in any manner affect either the prosecution case or the evidence of P.W.8 Namdeo and P.W.10 Govind. As further pointed out by us above, evidence of P.W.8 Namdeo and P.W.10 Govind corroborates each other and we have not noticed any variance ion their evidence to reject the evidence of these two witnesses. No doubt, both these witnesses are related witnesses in the sense that both these witnesses were related to deceased Kishan and deceased Vitthal. However, that by itself would not whittle down the importance of their evidence. Presence of both these witnesses at the scene of the offence in their own agricultural field, is natural and their evidence does not task us to arrive at the conclusion that these witnesses were not present. The prompt report at Exhibit 63 lodged by P.W.8 Namdeo goes a long way in corroborating his evidence. - 16 - 12. It was next urged by the learned counsels for the appellants that, undisputedly the two drivers of the jeeps had assaulted both deceased Kishan and deceased Vitthal on their head. We have reproduced the evidence of the medical officers conducting the post mortem examination of the two deceased. The deceased Vitthal had died as a result of head injury while deceased Kishan had died on account of neurogenic shock. Fatal injuries have been caused on the head of both the deceased and the prosecution witnesses in unison attribute those injuries to the drivers of the two jeeps. Unfortunately, the drivers of the said jeeps were not accused before the trial Court. The question, therefore, is whether it was the common object of the unlawful assembly to commit the murder of deceased Kishan and deceased Vitthal or whether the two drivers could be held liable for their individual act. 13. It appears that there was some dispute in relation to the agricultural land where the incident had occurred. It also appears that accused Rajendra, on immediately arriving at the agricultural land, had informed the complainant and the others not to continue with their sowing operation. It does not appear that it was the common object of the unlawful assembly to commit murder of deceased Kishan or deceased Vitthal as it could not be - 17 - anticipated that the accused would be aware that both the deceased would be present in the agricultural land. Moreover, if this was the common object, the accused would have started assaulting immediately on coming to the agricultural field. None of the accused were armed with any deadly weapons in the sense that the accused were armed with sticks and iron rod. The injuries which prove to be fatal and as sustained by the two deceased were the injuries inflicted by the two drivers of the jeep. None of the accused was armed with axe or any sharp pointed weapons. The medical officer also does not state that the injuries which were caused by the accused to both the deceased were sufficient in ordinary course of nature to cause death. In fact, the injuries sustained by deceased at the hands of the accused were at the most simple injuries and the two deceased had not died on account of the injuries inflicted by the accused. In fact, both the deceased succumbed to their injuries on account of the assault launched on them by the two drivers. From the incident, it is apparent that the common object of the assembly was not to commit murder of any of the members of the complainant party. It may have at best be to over-awe the complainant party. The accused have also not inflicted any injury which could be said to be serious or a fatal injury. As we have pointed out, the injuries which - 18 - resulted in the death of deceased Kishan and deceased Vitthal, were the injuries inflicted by the two drivers of the jeep. Deceased Kishan had sustained lacerated wound on his occipital region which is clearly attributable to the use of axe by the two drivers. Unfortunately, the two drivers were never arrested and there is no evidence to indicate that the intention of the two drivers was at any point of time shared by the other accused. The accused, therefore, in our opinion, would be liable to be convicted for an offence punishable under Section 324 of the Indian Penal Code for having caused a simple injury by dangerous weapons. The accused, who have been convicted for an offence punishable under Section 302 read with Section 149 of the Indian Penal Code, therefore, would be entitled to be given the benefit of doubt. 14. Accordingly, Criminal Appeal No.307 of 2006 is partly allowed. The conviction of accused No.1 Rajendra for offence punishable under Section 147 of the Indian Penal Code and sentence of R.I. for six months and fine of Rs.500/-, conviction under Section 148 of Indian Penal Code and sentence of R.I. for one year and fine of Rs.1000/-, conviction for offence punishable under Section 447 read with Section 149 of the Indian Penal Code and sentence of R.I. for one month and fine of Rs.200/- and - 19 - conviction for offence punishable under Section 323 read with Section 149 of Indian Penal Code and sentence of R.I. for three months and fine of Rs. 300/- is maintained. Accused No.1 Rajendra is acquitted for an offence punishable under Section 302 read with Section 149 of the Indian Penal Code and instead, he is convicted for an offence punishable under Section 324 read with Section 149 of the Indian Penal Code and is sentenced to a term of imprisonment which is already undergone by him which is of more than five years. Conviction of accused No.8 Kashinath for offence punishable under Section 147 of the Indian Penal Code and sentence of R.I. for six months and fine of Rs.500/-, conviction under Section 148 of Indian Penal Code and sentence of R.I. for one year and fine of Rs.1000/-, conviction for offence punishable under Section 447 read with Section 149 of the Indian Penal Code and sentence of R.I. for one month and fine of Rs.200/- and conviction for offence punishable under Section 323 read with Section 149 of Indian Penal Code and sentence of R.I. for three months and fine of Rs. 300/- is maintained. Accused No.8 Kashinath, however, is acquitted for an offence punishable under Section 302 read with Section 149 of the Indian Penal Code. - 20 - However, he is convicted for an offence punishable under Section 324 read with Section 149