1 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.246 OF 2009 1. Sanjay Khanderao Wadane, Age-27 years, 2. Macchindra Vitthal Waghmode, Age-30 years, 3. Dattu Vitthal Waghmode, Age-28 years, 4. Sachin Khanderao Wadane, Age-22 years, 5. Deelip Vitthal Waghmode, Age-35 years All are R/o.Bhatkudgaon, Tal.Shevgaon, Dist. Ahmednagar APPELLANTS VERSUS 1. State of Maharashtra 2. Shaila W/o.Ravindra Kale, Age-30 years, Occu-Household, R/o.Bhatkudgaon, Tal.Shevgaon, Dist. Ahmednagar 3. Sunil S/o.Raosaheb Kale, Age-37 years, Occu-Agriculture, R/o. As above RESPONDENTS 2 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 WITH CRIMINAL APPEAL NO.250 OF 2009 1. Sambhaji S/o.Asaram Aher, Age-33 years, Occu-Agriculturist, 2. Pandurang S/o.Shridhar Wadne, Age-42 years, Occu-Agriculturist, 3. Rajendra S/o.Khanderao Wadne, Age-24 years, Occu-Agriculturist, 4. Khanderao S/o.Shridhar Wadne, Age-50 years, Occu-Agriculturist, 5. Vitthal S.o.Damu Waghmode, Age-65 years, Occu-Agriculturist, 6. Musa S/o.Baban Sayyed, Age-42 years, Occu-Agriculturist, All are R/o.Bhatkudgaon, Tal.Shevgaon, Dist. Ahmednagar APPELLANTS VERSUS 1. State of Maharashtra 2. Shaila W/o.Ravindra Kale, Age-30 years, Occu-Household, R/o.Bhatkudgaon, Tal.Shevgaon, Dist. Ahmednagar 3. Sunil S/o.Raosaheb Kale, Age-37 years, Occu-Agriculture, R/o. As above RESPONDENTS 3 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 Mr.Joydeep Chatterji, learned counsel for the appellants in Cri.Appeal No.246/2009 Smt.S.S.Jadhav, learned counsel for the appellants in Criminal Appeal No.250/2009. Mr.D.V.Tele, learned A.P.P. for respondent State in both appeals. Mr.N.J.Pahune Patil, learned counsel for respondent no.2 and 3 in both appeals. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) RESERVED ON : 06/01/2011 PRONOUNCED ON : 11/01/2011 JUDGMENT : (Per A.V.Potdar, J.) 1. The appellants in both these criminal appeals stand convicted for an offence punishable u/s. 143 of The IPC and were sentenced to suffer RI for 6 months and to pay fine in the sum of Rs.200/- each, i.d. to suffer SI for 15 days. All the appellants were also convicted for an offence punishable u/s. 147 of The IPC and were sentenced to suffer RI for one year and to pay fine in the sum of Rs.400/- each, in default to suffer SI for one month. The appellants were also convicted for an offence punishable u/s. 148 of The IPC and sentenced to suffer RI for one year and to pay fine in the sum of Rs. 500/- each, i.d. to suffer SI for one month. The appellants were also convicted for an offence punishable u/s. 302 r/w. 149 of IPC and were sentenced to suffer life imprisonment and to pay fine in the sum of Rs.3,000/- each, in default to suffer SI for 6 months. The 4 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 appellants were further convicted for an offence punishable u/s. 326 r/w. 149 of IPC and were sentenced to suffer RI for 3 years and to pay fine in the sum of Rs.500/-, in default to suffer further RI for one month. In addition to this, appellant Sanjay Khanderao Wadane (Original accused no.8) (appellant no.1 in Cri.Appeal No.246/2009), was also convicted for an offence punishable u/s. 4/25of The Indian Arms Act and sentenced to suffer RI for one year and to pay fine in the sum of Rs.200/- in default to suffer SI for 15 days. All the substantive sentences were ordered to run concurrently vide judgment and order dated 09/04/2009 in Sessions Case No.88/2008 by The Additional Sessions Judge, Ahmednagar. It is also ordered that if the fine amount is recovered from the appellants, then from the recovered fine, an amount of Rs.30,000/- be paid to Shaila Ravindra Kale, the complainant, wife of deceased Ravindra Kale and an amount of Rs.5,000/- be paid to the injured witness Sunil Kale by way of compensation u/s. 357(1) of The Cr.P.C. By these appeals, the appellants have questioned the correctness and legality of their conviction and sentence before this Court. As both these appeals are arises out of the judgment and order passed in Sessions Case No. 88/2008, both these appeals to be disposed of by way of common judgment. 2. Appellants in Criminal Appeal No.246/2009 are original accused no.8 to original accused no.12. Appellants in Criminal 5 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 Appeal No.250/2009 are original accused no.1 to original accused no.5 and original accused no.7. For the sake of brevity, in the body and judgment, these appellants will be referred by their chronological numbers as mentioned in the sessions trial. 3. Such of the facts as are necessary for the decision in these appeals, can be briefly stated as follows : a) One Mhatardeo Damodar Khedkar (P.W.No.9) was attached to Shevgaon Police Station as Station Duty Officer on 31/01/2008. At about 4.45 p.m. or so, he received telephone message from village Bhatkudgaon that some scuffle was took place. Hence he directed P.H.C. Mhaske, Laxman Haribhau Bodkhe (P.W.NO.13), who were on VIP escort duty, to proceed to village Bhatkudgaon. As the atmosphere in village Bhatkudgaon was tense and sensational, he also asked Police Inspector Gawade (P.W.No.14) and P.H.C. Bhujbal to proceed to village Bhatkudgaon alongwith their staff. b) Accordingly police party headed by P.I. Gawade (P.W.No.14) as well as headed by Police Constable Bodkhe (P.W.No.13) visited village Bhatkudgaon. P.I. Gawade noticed that dead body of Ravindra was lying on the road in front of one Vijay Tea Stall. Wife of deceased by name Shaila was also found present there. He also noticed that injured Sunil (P.W.No.8) was also lying on the road near the deceased. Wife of Sunil was also found present at the spot. Brother 6 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 of deceased by name Anil Kale (P.W.No.5) was also found present at the spot. P.I.Gawade make arrangements to refer injured Sunil to Rural Hospital, Shevgaon for medical treatment. Dead body of Ravindra was also sent to Rural Hospital Shevgaon. Wife of Ravindra accompanied dead body of Ravindra in the same vehicle to Rural Hospital, Shevgaon. c) After the vehicle reached at Shevgaon, dead body of Ravindra was sent to post mortem. Wife of Ravindra by name Shaila then lodged the report (Exh.70) in Shevgaon Police Station. On the basis of this report, an offence came to be registered vide CR No.14/2008 against the appellants and Shivaji Raosaheb Kale (An acquitted accused) and one Altaf Ganyabhai Shaikh (An absconded accused) for an offence punishable u/s.302, 326, 143, 147, 148, 149 of The IPC, u/s. 4/25 of The Arms Act and u/s. 135 of The Bombay Police Act. The said CR was registered around 8.30 p.m. on the same day. Investigation of CR No.14/2008 was entrusted to PI. Gawade (P.W.No. 14). d) Police Inspector Gawade then visited Rural Hospital, Shevgaon. There he drew inquest panchnama (Exh.50) on the dead body of Ravindra in presence of panch witnesses. Thereafter, the dead body was sent for post mortem alongwith the letter of request. Dr.Nita Namdeo, Medical Officer, attached to Primary Health Centre, 7 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 Shevgaon, conducted the autopsy on the dead body of Ravindra in the morning of 01/02/2008. While conducting the autopsy on the dead body, she found following external injuries on the person of deceased Ravindra. 1. A very extensive lacerated wound over face, including both eyes, nose, mouth, tongue, right cheek alongwith multiple bone fractures, including right orbital bones. Right maxila, nasal bone, right mandible alongwith his both eye balls are collapsed. 2. Incise wound over infra mandible area of about 5 x 2 x 1 cm. 3. Incise wound over frontal area with fracture frontal bone of 5 x 0.5 x 3 cm. 4. Incise wound over left wrist dorsal aspect of about 4 x 0.5 x 5 cm. 5. Incise wound over right parietal area of 5 x 0.5 x 0.5 cm. 6. Contusion over left side lower abdomen of 8 x 2 cm. During the post mortem, she had noticed following internal injuries. Head-Intra cerebral hemorrhage present alongwith brain – both lobes of cerebrum lacerated. According to her, probable cause of death of deceased is due to cardio respiratory arrest due to hemorrhage as well as nurogenic shock due to very extensive lacerated wound over face including brain alongwith multiple bone fracture on face. 8 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 e) On 01/02/2008, Police Inspector Gawade, visited Bhatkudgaon and drew spot panchnama in the presence of panch witnesses. From the place of offence, he seized plain soil and blood mixed soil. One broken piece of sword was found in the gutter by the side of the road, near the place of offence (Article 3), which was also seized under the same panchnama. Then he seized one omni- car and 2 motor-cycles under the panchnama Exh.54 of the same day. On that day, he recorded statements of certain witnesses including the statements of brother of the deceased Anil Kale. On 02/02/2008, he had recorded statements of P.H.C. Shri. Khedkar and police constable Shri. Bodkhe (Exh.13). On 04/02/2008, he recorded statement of injured witness Sunil Kale. On 05/02/2008, he arrested accused Vitthal Waghmode (Appellant no.5 in Criminal Appeal No.250/2009), Sanjay appellant no.1, Sachin and Dilip, appellants no.4 and 5 respectively in Criminal Appeal No.246/2009. On 06/02/2008, clothes on the person of accused Sanjay and accused Dilip were seized in presence of witnesses under panchnama Exh.73 (Article 8 to 11). On 09/02/2008, remaining accused/ appellants other than Altaf were arrested. Then he had seized clothes on the person of appellant/accused no.1 Sambhaji and clothes of appellant no.2 Pandurang under the panchnama Exh.74 in the presence of witnesses. On 12/02/2008, accused Sanjay made disclosure statement Exh.75. Thereafter, at the instance of accused Sanjay, two swords and 2 iron rods (Article 16 to 19) were recovered 9 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 which were concealed below the heap of material near one well at village Bhatkudgaon, which were seized under the panchnama Exh.76. During the investigation, medical certificate of the injured was collected who was initially examined by Dr.Kundlik Arjun Awasare (P.W.No.11) in the Rural Hospital at Shevgaon, from where he was referred to Civil Hospital, Ahmednagar for further treatment. During the investigation, on 10/03/2008, seized property was sent to chemical analysis alongwith Police Constable Ingawale, with forwarding letter (Exh.77). On 29/04/2008, blood sample of the blood of the deceased was sent to C.A. alongwith forwarding letter (Exh.78) through Constable Shri.Ingawale. After receipt of C.A. Reports Exh.79 to 81 and after completion of investigation, charge sheet was filed against the appellants and the acquitted accused in the Court of J.M.F.C. Shevgaon, who after passing necessary committal order, committed the trial against the appellants and acquitted accused to the Court of Sessions at Ahmednagar. f) Learned Additional Sessions Judge, Ahmednagar had framed the charge against the appellants and acquitted accused vide Exh.35 for the offences punishable u/s. 143, 147, 148, 302 r/w 149, 326 r/w. 149 of The IPC, also framed the charge u/s. 4/25 of The Indian Arms Act, and u/s. 135 of The Bombay Police Act. Appellants and acquitted accused Shivaji pleaded not guilty to the charge and claimed to be tried. During the trial, to substantiate the charges 10 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 lavelled against the appellants and acquitted accused, prosecution has examined in all 14 witnesses including 6 panch witnesses to the different memorandums, 3 eye witnesses including Anil Kale, Sunil Raosaheb Kale and Shaila Ravindra Kale, 2 medical witnesses including Dr.Nita Namdeo, who conducted autopsy on the dead body of the deceased and Dr. Kundlik Awasare, who had examined injured Sunil immediately after his admission in Rural Hospital at Shevgaon and 3 police witnesses including the Investigation Officer. The appellants have examined 2 defence witnesses, but their evidence was not accepted by the learned Lower Court, and on appreciation of the evidence led by the prosecution, the Trial Court pleased to convict all the appellants for the offence punishable u/s. 143, 147, 148, 302 r/w. 149, u/s. 326 r/w. 149 of The IPC. In addition to that, learned Trial Court convicted the appellant/accused Sanjay for the offence punishable u/s. 4/25 of The Indian Arms Act, while pleased to acquit original accused no.6 Shivaji Raosaheb Kale from all the charges. As the charge sheet was filed against the absconding accused Altaf, who was not available at the time of trial, his trial was separated. The alleged judgment of conviction and sentence against the appellants is impugned in these appeals. g) Admittedly, State has not preferred any appeal against the acquittal of original accused no.6 Shivaji Kale. 11 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 4. For the proper appreciation of the submissions of learned counsels appearing for the appellants in both these appeals and learned APP appearing for the State, it is necessary to take into consideration the evidence of material witnesses. 5. From the evidence of Dr.Nita Namdeo (P.W.No.10), there is no doubt in our mind that the death of deceased Ravindra is a homicidal death. At the same time, from the evidence of Dr.Kundlik Arjun Awsare (Exh.11), who has noted the injuries mentioned in the medical certificate at Exh.69, which read as follows : Incise wound about 2 cm x 1 cm x bone deep over middle of tibia left side over skin of tibia with compound fracture of tibia and fibula, bleeding and swelling was there. There is no doubt in our mind that during the incident dated 31/01/2008, Sunil Raosaheb Kale had sustained grevious injuries. 6. It is in the evidence of Anil Vinayak Kale (P.W.No.5) that deceased Ravindra is his brother and residing in the field situated in village Bhatkudgaon. He know the accused persons. There was dispute between deceased Ravindra and the accused persons. On 31/01/2008, he had been to Bazar of village Kukana at about 11.00 a.m., from where he returned to the village at about 4.30 p.m.. When he came in front of Hotel, he saw that one omni-car gave dash to Ravindra Kale, who was standing in front of the said hotel. 12 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 Ravindra fell down due to the dash. At that time, two motor cycles came there. Appellant Sambhaji Aher and Dattu Waghmode came on motor-bikes. Appellant Vitthal Waghmode, Dilip Waghmode, Macchindra Waghmode, Pandurang Wadane, Sachin Wadane, Sanjay Wadane, Khandu Wadane, Musa Sayyad and Altaf Ganibhai alighted from the said omni-car. Appellant Pandu Wadane, Sanjay Wadane, Sambhaji Aher, Musa Sayyad and Altaf Ganibhai were holding swords in their hand. Remaining accused persons were holding iron pipes in their hands. Appellant Sambhaji Aher gave 2 blows of sword on the head of Ravindra. He rushed to inform the incident to the wife of Ravindra by name Sahila (P.W.No.12), and brought her on the spot. At that time, Shaila was fetching water from the water tank, which was situated at the distance of about 150-200 ft. from the said spot. When they reached near the spot, they saw that Ravindra was lying on the ground and the appellants were assaulting Ravindra with Swords and iron pipes in their hand. His cousin brother Sunil Raosaheb and one Shridhar Salwe came there to rescue Ravindra. The appellants also assaulted them with the swords and iron pipes in their hand. Sunil sustained injuries on his legs. Shridhar also sustained injuries near his ear. Ravindra sustained multiple injuries on his face. Appellants then ran away from the spot in the omni-car as well as on the motor-cycles. He has further stated that thereafter, he went to his house and gave information on telephone to Shevgaon Police Station. He has further stated that around 6.30 p.m. or so, 13 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 police came at the spot and taken the dead body of Ravindra to Shevgaon. According to him, residential house of Ravindra is at the distance of about 100 ft. from the water tank. It transpired from his cross examination that the name of the tea stall is Vijay Tea Stall. He has admitted that after the omni-car gave dash to his brother, his brother Ravindra fell down in front of the said van. The entire incident was over within a span of 10 minutes. Due to the dash of the omni-car, Ravindra fell on the road. He was trying to get up, but could not. Blood was oozing from the injuries sustained by Sunil. The jeep of his brother Ravindra was standing at the distance of 20 ft. by the side of the road from the said tea stall. He has further stated that he gave telephone call to Shevgaon Police Station within 5-10 minutes after the incident. He had given the names of appellants to the police, and also informed about the place of incident. He has admitted that within 30 minutes, after he gave telephone message to the appellants, 2 police came at the spot in the jeep and 15 minutes thereafter, PSI/Police Officer came at the spot. His statement was recorded on the next day. During the night, he was present in the village, but his statement was not recorded. He has further admitted that he had not disclosed the incident before the Police till his statement was recorded on 01/02/2008. He has further stated that on the next day morning, Village Kotwal came to call him at his residence around 14 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 12.00 noon. He has further admitted that on that day, in between 6.30 a.m. to 10.30 a.m., he did not meet police. According to him, on that day, police have only recorded his statement and no other document was prepared. In his further cross examination, omissions were proved that he had not stated in his statement before Police that he came to his village at about 4.30 p.m. from village Kukana. It is also brought on record in his cross examination that he and his deceased brother Ravindra have been involved in the murder case. 7. It is in the evidence of Sunil Raosaheb Kale, P.W.No.8, that deceased Ravindra was his cousin brother. On 31/01/2008, he came to village Bhatkudgaon to meet his mother. At about 4.00 to 4.30 p.m., he was in the hospital of one Raju Jamdade. Devidas Magar and Shridhar Salve were with him. Ravindra came in jeep. He stopped the jeep and came to meet them. All of them ate bhel. Then Ravindra was standing in front of the said hotel. One omni-car and 2-3 motor-cycles came there. Omni-car gave dash to Ravindra, due to which he fell down. Sambhaji Aher, Pandurang Wadane, Musa Sayyad, Raju Wadane, Sachin “Wadane and Altaf Sayyd alighted from the van. Kahndeorao Wadane, Vitthal Waghmode, Dattu Waghmode, Dilip Waghmode and Sanjay Wadane came on the motor cycles. Those person, who were alighted from the van, were holding swords in their hands, while the remaining persons were carrying iron rods in their hands. First Sambhaji assaulted with 15 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 sword on the head of Ravindra. Then Pandurang Wadane, Musa Sayyad, Sanjay Wanade assaulted Ravindra with sword on the head and forehead of Ravindra. Remaining persons beat Ravindra with the pipes in their hands. He tried to rescue Ravindra. At that time, Sambhaji gave sword blow on his left leg. Other persons assaulted him with iron pipes, and he sustained bleeding injuries. Then the assailants ran away. At that time, Anil brought the wife of Ravindra at the spot. Police brought him to the hospital at Shevgaon from where he was shifted to Civil Hospital, Ahmednagar for further treatment. In the Civil Hospital, Police recorded his statement. He was admitted in the hospital for about 1 to 1 ½ month. He has stated in his cross examination that they ate bhel in Akash Bhel Center. Name of the Tea Stall is Vijay Tea Stall. He has admitted that criminal cases of murder and assault were pending against Ravindra. His statement was recorded by police on 04/02/2008. Initially, first aid was given to him in Shevgaon Hospital and thereafter at about 9.00 p.m. or so, he was shifted to Civil Hospital, Ahmednagar. He has further stated that the van gave forceful dash to Ravindra He was beaten on both hands and legs with iron pipes. The entire incident was over within 4-5 months. He has admitted in his further cross examination that Anil, his wife, and his mother meet him in the hospital and inquired about the assailants, but he has not disclosed the names of the assailants till 16 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 his statement was recorded by police on 04/02/2008. He has further admitted in his cross examination that Vilas Chandgude, Annasaheb Mulay and Vishnu Kale came to meet him in the hospital at Ahmednagar and told him that they have told the names of the assailants to the police and he should disclose those names to the police, and accordingly he had stated names of the assailants before the Police. Then he had stated that he had seen the assailants at the spot. He had further admitted in his cross examination that the externment order was passed against him and deceased Ravindra by the authority on the basis of affidavits filed by the appellants before the Police. He had further admitted in his cross examination that criminal case is pending against him and the deceased, which was lodged by the wife of one Sambhaji Kale about the demand of ransom. 8. It is in the evidence of Sahila Ravindra Kale (P.W.No.12), wife of the deceased that there was dispute between Sambhaji Aher (Original accused no.1) and her deceased husband Ravindra. In the morning of 31/01/2008, there was meeting in Gram Panchayat where deceased was called, but deceased had not attended the meeting. At about 4.30 p.m., when she was fetching water from the water tank, brother of deceased, Anil (P.W.No.5) came to her and told that vehicle of Khandu Wadane gave dash to Ravindra and the appellants are beating Ravindra. Then she rushed to the spot. She saw that 17 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 assailant Sambhaji Aher was beating Ravindra by means of sword. Accused Sambhaji Aher, Pandu Wadane, Sanjay Wadane, Musa Baban, Altaf Ganyabhai were assaulting Ravindra with swords while remaining assailants assaulted Ravindra with iron pipes. Ravindra had sustained injuries on his face. When the assailants saw her, then ran away from the spot. She also noticed that Sunil Kale had sustained injuries on his leg and Shridhar Namdeo Salve sustained injuries on his neck. Ravindra died on the spot. Within ½ an hour, police vehicle came at the spot, in which she herself and her deceased husband were brought to the hospital. Then she lodged report in the police station. She has admitted in her cross examination that when she went to the spot, she noticed that her husband was lying there. She has further admitted that when brother of her husband Anil came to call her, on her asking, he informed that her husband was lying in front of tea stall on the road. She has further admitted that on the basis of affidavits filed by the appellants against her husband before police, an externment order was passed against her husband. An omission stands proved in her further cross examination that she has not stated in her statement before police that Pandurang, Musa Baban, Sanjay Khanderao, Musa Sayyad and Altaf Ganyabhai were having swords in their hands. Within 10-15 minutes, Vishnu Kale came there. She has further admitted in her cross examination that neither on the spot, nor on the way to the hospital, police had made any inquiry with her about 18 Criminal Appeal No.246 of 2009 with Criminal Appeal No.250 of 2009 the incident nor she, at her own, informed the police about the incident. All the while,