1 Cri.AppealNo.29/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.29/2011 1) Kailas s/o Mahadeo Jadhav Age: 42 Yrs., occu. Agril. 2) Shahaji s/o Bhagwan Bolbhat Age: 33 Yrs., occu. Agril. 3) Tatyaram s/o Bhimrao Jadhav 4) Harish @Hariram s/o Subbarao Birangal (Resp. No.4 is deleted as per court's order dated 3.3.2011) 5) Arun s/o Bhagwan Bolbhat Age: 42 Yrs., occu. Agril. 6) Rajesh s/o Dadahari Walke Age:25 Yrs offu.Agril. All r/o Sonegaon, Tq.Jamkhed, District Ahmednagar. = APPELLANTS VERSUS 1) The State of Maharashtra = RESPONDENT Shri Shirish Gupte, Sr.Advocate instructed by Smt.Sadhana S. Jadhav with Mr.Satej S.Jadhav, Advocates for Appellants; Mr.NR Shaikh, APP for State WITH CRIMINAL APPEAL NO.121 OF 2011. 1) Tatyaram s/o Bhimrao Jadhav 2 Cri.AppealNo.29/2011 Age: 29 Yrs., occ. Agril. r/o Sonegaon, Tq. Jamkhed, District Ahmednagar. 2) Harish @ Hariram Subbarao Birangal, Age: 28 Yrs. Occupation – Agril. r/o Sonegaon, Tq. Jamkhed, District Ahmednagar. = APPELLANTS VERSUS The State of Maharashtra = RESPONDENT .... Mr.RN Dhorde with Mr.VR Dhorde, Advocates for appellants; Mr.NR Shaikh, APP for State. ----- WITH CRIMINAL APPEAL NO.27 OF 2011 Smt.Suman s/o Baban Misal Age:36 Yrs., occu. Household R/o Sonegaon, Tq. Jamkhed, District Ahmednagar. = APPELLANT VERSUS 1) The State of Maharashtra. 2) Kailash Mahadev Jadhav, age: 38 Yrs., occu. Agril. 3) Shahaji Bhagwan Bolbhat, Age: 30 Yrs., occu. Agril. 4) Tatyaram Bhimrao Jadhav, Age: 27 Yrs., occu. Agril. 5) Harish @ Hariram Subbarao Birangal, Age: 26 Yrs. 3 Cri.AppealNo.29/2011 Occupation – Agril. 6) Arun Bhagwan Bolbhat, Age: 39 Yrs., occu. Agril. 7) Rajesh s/o Dadahari Walake, Age: 22 Yrs., occu. Agril. All R/o Sonegaon, Tq.Jamkhed, District Ahmednagar. = RESPONDENTS (in jail) Mr.VD Sapkal, Advocate for Appellant; Mr.NR Shaikh, APP for State; Shri Shirish Gupte, Sr.Advocate instructed bySmt.Sadhana S Jadhav with Mr.Satej S.Jadhav, Advocates for Respondent Nos.2, 3 and 6 & 7; Mr.RN Dhorde and Mr.VR Dhorde, Advocates, for Respondent Nos.4 & 5. *** CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE OF RESERVING JUDGMENT : 16th September, 2011. DATE OF PRONOUNCING JUDGMENT: 18th October,2011 JUDGMENT (PER:-A.H.JOSHI,J.) 1) The Appellants were tried in Sessions Case No.199/2008 for the offences punishable under Sections 120-B, 148, 149, 302, 341, 201 of IPC read with Section 149 and also under Section 3(i)(x) of Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act, read with Section 4 Cri.AppealNo.29/2011 149 of IPC and Section 3(ii) r/w section 149 of IPC by the learned Sessions Judge, Ahmednagar. 2) The trial ended in conviction of the accused persons for all the offences, except offence under Section 120-B of IPC and they have been ordered to undergo life sentence. 3) Heard learned Senior Advocate Shri Shirish Gupte with Smt.Jadhav and Shri Satej Jadhav and learned Advoate Mr.R.N.Dhorde, for the respective appellants/accused; learned APP for State; and learned Advocate Mr.VD Sapkal for Appellant in Criminal Appeal No.27/2011. 4) Facts of the case, as have been gathered from the rival submissions, judgment etc., can be summarized as follows :- (i) The incident had occurred at about 6.00 p.m. on 5.7.2008. (ii) Accused persons had political and business rivalry against one Baban Misal, the victim. (iii) The accused pesons were in a car. Accused persons chased Baban Misal on village Kharda to Jamkhed road, while the 5 Cri.AppealNo.29/2011 victim was driving the motor-cycle and PW No.1 Shri Sham Sathe was the pillion rider. The motor-cycle did skid. The riders fell down. The accused persons got down from the car with weapons. The accused persons stopped the victim and dared Baban and PW No.1 to escape if they can as the accused had arrived to finish Baban. (iv) PW No.1 – Sathe started running away. Some accused had caught at the shirt of PW No.1, which was torn and a piece thereof got separated and fell down. PW No.1 then ran and concealed himself behind a tree and witnessed the incident. (v) One amongst the accused persons caught hold of Baban Misal by encircling him with bicycle chain, and all accused beat Baban Misal with different weapons. The victim fell down due to the injuries. (vi) The accused persons then created a show of motor-cycle accident with car, lifted and threw the dead body of Baban Misal in the gutter near rear wheel of the car, put a stone on body of the victim and then left the place of occurrence. 6 Cri.AppealNo.29/2011 (vii) Relatives of the deceased arrived at the scene of offence, after half an hour. Police as well as local politically influential persons arrived thereafter. (viii) The offence regarding the incident was registered at about 1.30 a.m. on 6.7.2008. (ix) Investigation was carried out. Weapons of assault used in the commission of the offence were seized. Statements of several persons / witnesses were recorded and the accused were charge sheeted and tried accordingly. 5) Prosecution has examined 19 witnesses, as under. . PW No.1 –Shri Sham Kisan Sathe, is the eye-witness, who has lodged the FIR (Exhibit-61). The Panch witnesses to various panchanamas drawn during the course of investigation. . PW No.2 –Gautam Ananda Sadafule (Exh. 65) . PW No.3 -Rajesh Sukhdeo Wavhal (Exh.67) . PW No.4 -Pandit Sitaram Pawar (Exh.74), 7 Cri.AppealNo.29/2011 . PW No.5 -Somnath Gorakh Jadhav (Exh. 78), . PW No.6 –Kachru Ankush Rajguru declared hostile. . PW No.7 -Sambhaji Namdeo Jadhav (Exh. 83) and . PW No.8 –Balasaheb Shela Shinde (Exh. 86) . PW No.9 –Dr.Umesh Narayanrao Rayate is the medical officer, who had conducted post mortem examination of dead body of deceased – Baban Misal (Exh.90). . PW No.10 –Shri Sudhir Dagdu Kale is examined to prove that earlier he was the owner of Maruti car bearing registration No.MH-12-YA-7929, used by accused, which he had sold to accused No.2 - Shahaji Bolbhat(Exh.94); . PW No.15 –Shri Somnath Eknath Kathawate is a protographer, who has undertaken the photography of the place of offence, dead body, car etc. involved in the offence (Exh. 109); . PW Nos.14, 16 and 17 are the witnesses of certain relevant facts so as to show the previous rivalry between the parties, disputes etc (Exhibits – 106, 110 & 111 respectively). . PW No.13 –Ansar Ismile Baig, the police constable is examined to prove that certain articles were sent for chemical analysis (Exhibit 104); . PW No.18 –Sandip Rajaram Doifode is SDPO, who took over the investigation on 5.7.2008 and carried certain investigation 8 Cri.AppealNo.29/2011 (Exh.117); (9) PW No. 19 – Sandip Sukhanand Jadhav is the Investigating Officer (Exh.140). 6) The prosecution case mainly rests on testimony of PW No.1 – Shri Shyam Sathe. Other witnesses though important in their own way, are formal or of lesser significance. Relevant portion of testimony of PW No.1 needs to be extracted in order to segregate exact version, which proves certain facts from other. 7) Relevant portion from testimony of PW No.1 – Shyam Sathe, verbatim, is quoted below :- EXAMINATION-IN-CHIEF OF PW NO.1 (EXHIBIT-61) "1). .................................... ......................................... (a) At that time Harish Subharao Birangal had encircled Baban by chain and was holding him; (b) Kailas Mahadeo Jadhav hit on Baban Misal by sword below left ear and said that there was opposition to give away the water from tank and this Mangatya has made the Government to give the water, and not to let him alive; (c) At that time, Shahaji Bahgwan Bolbhat said that the liquor shop from the village is closed by this Mangatya, the boarding was closed and not to leave alive this Mangatya and he hit by Sattor on the left ear; 9 Cri.AppealNo.29/2011 (d) Tatyaram Bhimrao Jadhav assaulted by sword on the right side face and head of Baban; (e) Thereafter, Arun Bhagwan Bolbhat assaulted by sickle on left and right side of the head of Baban. At such time, Baban Misal tried to rescue himself by using force. (f) At such time, Rajesh Dadahari Walke by the sword in his hand assaulted on left arm and shoulder of Baban. On coming to know that Baban died,they thrown him in the ground. Thereafter all went inside Maruti car. (g) They lifted Baban Misal by holding hands and legs and thrown him near the rear wheel of the Maruti car in the gutter. (h) Kailas Jadhav lifted one stone and thrown it on the body of deceased Baban Misal and said that finally the Mangatya is eliminated. (i) After some time the relatives from our village come. We kept crying with each other and police came. We went to Jamkhed police station at about 10.30 to 11 p.m. I lodged the complaint. (The alphabetical marking and sub- paragraphing is done for convenience. The aforesaid extract is taken from page Nos. 248, 249 & 250 of Paper book) CROSS-EXAMINATION BY ADVOCATE FOR ACCUSED NOS.1 AND 2: (EXHIBIT-61) "2)...................................... 3)....................................... 10 Cri.AppealNo.29/2011 4)....................................... 5)....................................... 6)....................................... 7)....................................... 8)....................................... 9)....................................... 10) After about half an hour the relatives from the village arrived. I cannot say by which vehicle they came there. 7 to 8 relatives arrived there. I had not inquired to these relatives if any one has mobile phone. They came by vehicle. Amongst those persons, Baban's father Sitaram, nephew Rahul Kamble and brothers Anil and Balu. I cannot give the time when police arrived thereafter. Que.:After police arrived, how much time you took to leave the place of incident? Ans.:I do not know the time when police arrived but I left the place after three to 4 hours from the time of incident. I had seen 2 to 3 police. Thereafter Dy.SP, Ahmednagar arrived there. When I was there it had not so happened that police had brought the Dog Squad. I had stated while lodging the complaint that police had arrived there. I cannot assign reason as to why it is not stated in the complaint. I had not stated to the police at the time of lodging the complaint that after the incident the accused sat inside the 11 Cri.AppealNo.29/2011 car and again came out of the car. I had not stated to the police that accused ran through the field. ......................................... ......................................... ......................................... (5) While giving the complaint I stated to police that I was at home. I cannot assign as to why police hadnot written it in the complaint. It was not happened that I received the message and, therefore, I went. After receiving the call I started immediately. When I reached theagricultural land Baban Misal was present. I reached about 2 p.m. Baban Misal had taken the meal in my presence. The meal was completed up to 2.30 p.m. At that time, father and mother of Baban were present in the home. We had not taken tea before we started. At Kharda we had parked the motorcycle and went aside. Kacharu Rajguru is owner of the water tank and Harishchandra Wadile was selling the fish. My shop of selling fish is adjacent to the shop of Wadile. Wadile is resident of Kharda and Kacharu Rajguru is resident of village Dighol. I am not having relationswith them. At that time, I had not met and spoken to them. 2 to 4 days prior to the date of incident, I had met Wadile for the last. I had not met both of them for 7 to 8 days after the incident. At Kharda, there was no tea offered to Baban Misal by both of them. My native place is Dhanegaon, which is at a distance of 4 km. away from Sonegaon. I do not know Subbabai Kale 12 Cri.AppealNo.29/2011 from Dhanegaon. (6) It had not happened that I reached Jamkhed police station after 12 at mid night. I narrated the incident in the manner it occurred to the police while giving the complaint. It was the first time, I narrated the incident at Jamkhed police station. Thereafter on 12.7.2008 I was called by the police at Jamkhed police station. I reached police station at about 11 a.m. I received the message at about 10 a.m. The message was received that I was called for identification of the weapons of the offence. It is true that on that day I was shown the weapons which are shown to me in the Court. Sattur is used for cutting fish. (7) The spot of incident is at a distance of 10 to 11 km away from Kharda. It is true that the spot is on the left side of the road while going towards Jamkhed from Kharda. It is true that no one reside in the periphery of 1 Km. from the spot of incident. The place where I was hiding is the only place having Mahananda creeper. That spot is at a distance of 50 to 60 feet away from the road. Tatyaram chased me or 4 to 5 seconds. I had not seen if Baban Misal was caught during those 4 to 5 seconds. When I turned back I seen Baban Misal was 13 Cri.AppealNo.29/2011 caught. I seen that Baban was caught at a distance of 30 to 35 feet a way from road. Myself and baban ran in the land on one side of the road in two directions. The distance between the place from where I was watching and the spot is incident is about 70 to 80 feet. The incident of Baban Misal, caught holding by chain and encircled occurred at one place. The said act was near the well. I had not gone for rescue of Baban when I seen the incident. The chain was not completely taken around his body. He caught hold from behind. Hands of Harish were ahead of Baban. He was caught hold for 5 to 8 minutes. After 5 to 6 minutes he had fallen. After he had fallen, the assault had not continued. When the incident occurred between 10 to 15 minutes, no vehicle went through the road. It is true that it was Saturday, the weekly market day of Jamkhed. It is true that the people of Kharda and Anandwadi visit weekly market at Jamked. It is true that at Jamkhed at every Saturday there is market for bullocks. On Kharda Jamkhed road, the traffic is rare. (8) to (12).............................. (13) I do not know if on 5.7.2008 the houses and boardings of accused were damaged and police case was registered. I do not know Suman Kale from Sonegaon. I do not know if Suman Kale 14 Cri.AppealNo.29/2011 had filed complaint under section 395 IPC against Baban Misal. I do not know if the incidents of robbery had occurred on Kharda to Jamkhed road. It is true that Jamkhed-Kharda road leads to Tuljapur, Solapur. It is true that in the case in the year 1996 of which I deposed it was a case of assault and injury to me under section 307 IPC. We have cross terms with the accused since 1996. (14)..................................... (15) At Kharda there is Police outpost. Village Rajuri is situated at 3 Km. from the spot of incident towards Jamkhed. The distance between spot of incident and Jamkhed is about 10 Km. I cannot say if the cattle market of Jamkhed on that day closed at about 5 to 6 p.m. It is true, that on the road between Kharda to Jamkhed there are Rikshaws and jeep travelling for the passengers. Village Nandwadi is situated a ½ Km away from spot of incident towards Kharda. Que.:If you felt to take help of passing any vehicle on the road after the incident? Ans.:I had not stopped any vehicle but it was stopped by them on their own. I had not tried to send message to my relatives. There were people in the vehicles which stopped there. I inquired them if any one has a phone. They were having mobile phone. I have not taken the phone and called the 15 Cri.AppealNo.29/2011 relatives. Those persons informed the relatives on phone. I had not given the telephone number of the relative to them. After the incident occurred and accused ran away these vehicles stopped after 5 to 10 minutes. I had not asked those persons to call police on phone. I was sitting at a distance of 10 feet away from the body. The motorcycle had remained at the same place till completion of the incident where it was fallen. Maruti car and motorcycle were visible to the travellers to and fro. We both had fallen down from the motorcycle. When the car was brought across, Baban was riding the motorcycle by one hand and talking on mobile by another hand. The place where we had fallen there is side gutter to the road. I was not injured. Mahananda creeper is to 60 feet away from the road. It was possible to reach the road from Mahananda creeper. I have not attempted to get help when the incident was going on by coming on the road. There is no river near Mahananda creeper. It is not true to say that there is no Mahananda creeper. It is not true to say that I deliberately deposed falsely that there is Mahananda creeper to make out falsely that at that place I was hiding. On the next day, I had gone to the place of the incident with police. At that 16 Cri.AppealNo.29/2011 time, I had shown the place of Mahanda creeper to the police. The spot panchanama was written in my presence. (16)..................................... (17) It has not so happened that Harish Birangal assaulted by chain on Baban. I had stated in the complaint that Harish Birangal assaulted by chain. Que.:The statement in complaint that Harish Birangal assaulted by chain on Baban is false? Ans.:I stated such thing under fear. I cannot say if it is true or false. It is true to say that I was under fear condition amongst the police. It is not true to say since I had not witnessed the incident, and I was pressurized to give false complaint, therefore, I was under fear. Que: Since you were under fearful condition, you cannot say if the incidents as narrated in the complaint are correct or wrong? Ans. Some mistake is possible. (18) to (22)............................. (23) ..................I was not injured when I fallen from the motorcycle nor my clothes were torn at that time. On that day, I had not attended the hospital it is not true to say that when I had seen the dead body of Baban then only I realized that he received injuries on various parts of body. (24)..................................... 17 Cri.AppealNo.29/2011 (25) ..............I do not know if Baban was using wrist watch. I cannot say if Baban was using golden chain. It is not true to say that at the time of incident, Baban was wearing golden chain and having money with him. He was having mobile hand set only. I do not know if Baban was always carrying diaries of accounts and address with him. It is true that due to the assault on Baban, blood was on the shoulder. I do not know that blod was stained on the cyclechain. The time period was of 5 minutes from lifting of the dead body from the place until the accused left from that place. ( sub-paragraphing is done for convenience. The aforesaid extract is taken from PAGE NOS.257, 258, 260, 261 to 263, 268 to 269, 272, 275 of the paper book) 8) Perusal of post mortem examination reveals as follows :- "(i) Cause of death reads as follows:- "As per my opinion, the cause of death is "shock due to cardio respiratory failure due to intra- cranial hemorrhage due to Brain injuries due to Rupture of skull" (ii) Other injuries on the body are 17 in numbers, as shown in column No.17,which reads as follows : (1) Incised wound oblique on chin 07 cmx 1 cm x Bone deep; 18 Cri.AppealNo.29/2011 (2) Incised wound over lower part left cheek oblique – 5 cm x 1 cm x bone deep; (3) Incised wound oblique over Lt. cheek above injury No.(2) – 4 cm x 1 cm x bone deep. (4) Lacerated wound over middle part of left cheek extending from lt. angle of mouth up to Lower part of Lt. ear orifice 12 cm x 3 cm x bone deep. (5) Incised wound oblique over upper part of lt. cheek above injury No.4 – 6 cm x 01 cm x bone deep. (6) Incised wound oblique on lt. Side of neck below lt. Ear – 8 cm x 01 cm x 2 cm. (7) Incised wound over middle part of lt. Ear lower ½ of lt ear detached and missing from body; (8) Incised wound oblique over Rt. Cheek extending from right angle of mouth 8 cm x 1 cm x buccal cavity deep. (9) Right ear detached and missing from body due to incised wound. (10) Nose, both the eye-boles upper one half of left cheek and Right cheek missing due to crush injury. (11) Frontal bone, both paritals and both temporal bones crushed and brain matter carrying out. (12) Multiple fractures of occipital bone on both sides brain matter is coming out. 19 Cri.AppealNo.29/2011 (13) Linear abrasion on left side of chest above nipple – 8 cm x 5 cms. (14) Linear Abrasion over left shoulder on upper side – 4 cms x 2 cms. (15) Linear Abrasion over left shoulder on deltoid region – 5 cm x 01 cm. (16) Linear Abrasion 6 cm on left arm laterally horizonally. (17) Linear Abrasion on left arm – 6 cms. All the incised wounds are caused by hard and sharp objects, abrasions and skull vault, bone fractures is caused by hard and blunt objects". 9) Injury Nos.10, 11 and 12 pertain to the skull injury. In minimum words – over half of upper portion of head and skull bone was dis- integrated and brain mass had protruded and was in smashed condition. 10) In the testimony, PW No.9 has stated as under: "3..................................... (a) The brain matter totally fragmented. Brain covering totally torn. Brain sinuses totally torn. Brain matter is mixed with the dark coloured clothes blood. Brain matter cannotbe weighed. Two egg sized stones found in brain matter. Stones are irregular in size. ........................................ ........................................ The egg size of stone I referred to 20 Cri.AppealNo.29/2011 chicken eggs. Those two stones were not sent to Chemical Analyzer nor given to police.................................. (quoted from Examination-in-chief of PW No.9 from page nos.374. 375 & 376 of paper book) He has stated as regards the matter in stomach as follows, : "4..................................... It is true if the matter in stomach gets vomited, it may occur on the clothes of the person. It is true that the clothes of the deceased stained with blood and not stained with faecal or vomit matter material. The stomach was totally empty.According to me more than six hours passed after last meal and death. There are no signs of vomiting in Esophagus. It is true that by such injuries to the brain instant death is possible.................... ........................................ 5....................................... It is true that if a person is caught hold by cycle chain or hit by it, weal marks are visible on the body. No weal marks of the chainwere visible on the dead body........................ It is true that crush injuries are possible in accident. (quoted from Examination-in-chief of PW No.9 from page Nos.375, 376 and 377 of paper book) 21 Cri.AppealNo.29/2011 11) The evidence on record is voluminous. Entire case however rests upon the testimony of PW No.1 – the sole eye-witness. 12) The substance of testimony of PW No.1 as regards what exactly had happened on the scene of offence needs to be referred at the cost of repetition in summary as follows:- (i) The accused had enmity with Baban Misal. (ii) The accused had probably had tracked the movements of Baban Misal. (iii) Therefore, accused, equipped with weapons, followed Baban Misal while he was on his motorcycle with PW No.1 as pillion rider, spotted him on the place of incident, and showered assault on Baban Misal. (iv) The assault resulted in causing 17 injuries, as noted in column No.17 of post mortem examination. The accused had