IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEALLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.61 OF 2006 APPEAL NO.61 OF 2006 APPEAL NO.61 OF 2006 Bala @ Gangaram Chandrakant Acharekar .. Appellant Versus The State of Maharashtra .. Respondent Mr.Ganesh Gole for the appellant. Mr.J.P.Yagnik, A.P.P for the State. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL NO.1154 OF 2005 APPEAL NO.1154 OF 2005 APPEAL NO.1154 OF 2005 Sandeep Damodar Patil & Ors. .. Appellants Versus The State of Maharashtra .. Respondent Mr.Sayaji D. Nangre with Mr.Ranjeet M. Pawar for the appellants. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 17th January 2009. : 17th January 2009. : 17th January 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . Heard learned counsel appearing for the appellants. I have also heard the learned A.P.P for the State. With a view to appreciate the submissions made by the learned counsel appearing for the appellants, it 2 will be necessary to refer to the facts of the case in brief. The appeals are preferred for taking an exception to the same judgment and order dated 29th November 2005 passed by the learned Additional Sessions Judge by which all four accused were acquitted for the offence punishable under section 302 read with section 34 of the Indian Penal Code. However, the accused were convicted for offences punishable under section 304 (Part II) read with section 34 and section 324 read with section 34 of the Indian Penal Code. For the offence under section 304 (Part II) the accused were sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/-. For the offence punishable under section 324 read with section 34 of the Indian Penal Code the accused have been sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-. 2. The original complainant is one Mr.Kesarinath, name of his brother is Kashinath. Rupali is the sister of deceased Nitesh and Swapnil the is brother of deceased Nitesh. On 07th June 1996 at about 6.50 p.m the said Swapnil was standing in the courtyard of his house and at that time his sister Rupali was sitting on a platform of her uncle Harishchandra’s house alongwith 3 her cousin by the name Varsha. The house of Harishchandra is opposite to the house of Kesarinath. At that time it is alleged Bala, accused no.1 accompanied by Sandeep, Mahendra and Sashikant (accused nos.2 to 4 respectively) were passing by the road. According to prosecution case the accused teased Rupali and hence Harishchandra warned them not to commit such mischief. Thereafter, the accused questioned Swapnil as to why he was staring at them. The said Swapnil retorted by telling them that God had gifted him eyes to look for and that he was free to see anywhere. Further, the prosecution case is that the accused gave angry glances towards Swapnil and abused Swapnil. Thereafter, they went away. Kashinath, Rupali’s father came back to his house at about 7.00 p.m. The said Swapnil disclosed the incident to him. After knowing the incident, Kashinath accompanied by deceased Nitesh and Swapnil proceeded towards Makunsar Naka with a view to eat vadapav and also to make inquiry as to why accused abused Swapnil. The 1st accused Bala was residing in a bungalow of one Satardekar by the name Swami Krupa. Kashinath accompanied by his sons straightaway proceeded towards the said bungalow. Accused no.1 Bala was residing in the said bungalow as a guest of said Satardekar. Kashinath called Satardekar and enquired 4 about 1st accused Bala. The said Satardekar called the 1st accused Bala. Bala came out of the house. Thereafter, Kashinath enquired with him about three other persons who had accompanied him. Kashinath questioned Bala as to why they have teased his daughter. Thereafter Bala called the 2nd to 4th accused. The said accused came to the spot. As Kashinath questioned the accused about the incident of the evening they got annoyed and started a scuffle with Kashinath. They started assaulting Kashinath. The allegation is that deceased Nitesh intervened to save his father Kashinath. The accused started assaulting the said Nitesh. It is alleged that accused Bala inflicted blow with his knife over the stomach of Nitesh. Nitesh went away and fell down. Swapnil ran away from the spot and proceeded to call his uncle Kesarinath. The said Kesarinath immediately reached the spot. At that time 2nd, 3rd and 4th accused had caught hold of Kashinath and the 1st accused i.e Bala inflicted blow with a knife over his right and left thigh and caused bleeding injury. There were shouts for help and therefore it is alleged that the accused ran away from the spot. By the time Nitesh was taken to government dispensary he was declared as dead. His father Kashinath was taken to the hospital. Kesarinath lodged the F.I.R. 5 3. On 07th June 1996 the police arrested the 1st accused Bala and 3rd accused Mahendra. The other two accused were arrested on 08th June 1996. The case of the prosecution is that on 11th June 1996 while the 1st accused Bala was in police custody, he made a disclosure statement in presence of panchas to point out the place where the weapon of offence i.e knife could be found. The prosecution case is that accordingly the knife was seized. On the basis of alleged disclosure statement made by the 4th accused Shashikant, blood stained clothes of the accused persons were seized from the place where the same were concealed. 4. Before referring to the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the evidence of the prosecution witnesses. The 1st witness is Kesarinath, the brother of Kashinath. He deposed that he is running a grocery shop. At about 8.15 p.m on 07th June 1996 his son Yogesh came to the grocery shop and informed him that Nitesh has been stabbed and people were beating Kashinath. He stated that the incident occurred at Makunsar Naka. He stated that by his motorcycle he rushed to the spot. He stated that he went in front of 6 Swami Krupa bungalow on the road where people had gathered. Nitesh was lying unconscious. He stated that the 2nd to 4th accused had caught hold of Kashinath and were assaulting him. He identified 2nd, 3rd and 4th accused in the Court. He stated that accused no.1 Bala was possessing a knife in his hands and had inflicted nine blows on both the thighs of Kashinath. There were shouts raised by Kashinath. He identified 1st accused Bala in the Court. He stated that a truck owned by one Arvind Chaudhary was passing by and he stopped the truck and Kashinath and Nitesh were carried to the police station by the said truck. At Primary Health Centre Nitesh was declared dead and after giving treatment, Kashinath was sent to Bhagwati hospital at Borivali. He also deposed as regards incident at 6.15 p.m on 07th June 1996 by stating that the 3rd accused Mahendra asked his nephew Swapnil as to why Swapnil was looking at him. He stated that the incident of assault occurred due to the said incident. The witness was cross examined by the counsel for the accused. He denied the suggestion that Kashinath was addicted to liquor and was of quarrelsome nature. He pleaded ignorance about the suggestion that the 1st accused Bala and Rupali were having a love affair. He also pleaded ignorance about the suggestion that Swapnil and Nitesh were aware about 7 the love affair between the 1st accused and Rupali. He stated that Swami Krupa bungalow is owned by sister of 1st accused. He stated that he was not aware whether the 1st accused was residing with his sister in the Swami Krupa bungalow at the time of incident. He stated that the 2nd and 3rd accused Sandeep and Mahendra are staying in a house which is near to the said bungalow. He stated that house of the 4th accused Shashikant is to the eastern side of the house of 2nd and 3rd accused. He stated that the Swami Krupa bungalow is located on Makunsar-Saphala Road and is enclosed by a compound having a gate. He admitted that Kashinath and his boys called the accused. He denied the suggestion that Kashinath and his sons assaulted the accused for teaching them a lesson. He denied the suggestion that Kashinath and his sons indulged in a fight in the darkness. He denied the correctness of the suggestion that looks of the Nitesh were similar to Bala in so far as complexion is concerned. He admitted that about 30 to 35 people had gathered when he reached the spot of incident. 5. The 2nd witness is Tukaram Manglya Patil who is the panch witness to the arrest panchnama. The 3rd witness is Laxmikant Chimanlal Patel. He is also a 8 panch witness who stated that the spot of incident was on Saphale road and in front of Swami Krupa bungalow. He stated that police did not seize blood mixed soil and plain soil in his presence. The 4th witness is Harishchandra Kanha Thakur who is again a panch witness to the seizure of the clothes on the person of Kashinath. 6. The 5th witness is injured Kashinath Madhav Mhatre. He deposed to the prosecution case before the Court. He stated that after he came back to his house after attending to the duty, Swapnil informed him about the incident taken place in the evening involving the accused. After knowing the incident from Swapnil, he alongwith Nitesh and Swapnil proceeded to Naka for eating vadapav. He stated that instead of eating vadapav they directly went to the bungalow of Satardekar and called Satardekar. He made enquiry about the whereabouts of 1st accused Bala and also made enquiry about other three accused. He stated that accused no.1 Bala was a guest of Satardekar. Accordingly Satardekar called him there. The 1st accused came out and thereafter called other three accused. He made enquiry with the accused as regards the incident. He stated that all of them got angry on such enquiry and started 9 abusing him and his son Nitesh. He stated that 2nd to 4th accused started beating him and Nitesh. He stated that when the 1st accused stabbed Nitesh in his stomach by knife, Nitesh left the spot and fell down. He stated that thereafter the 1st accused stabbed on his right thigh as well as left thigh. He stated that Swapnil ran away and informed Kashinath. He stated that Keshirnath arrived at the spot when the 2nd to 4th accused were beating him. After hue and cry was made, the accused ran away. 7. In the cross examination he had stated that his statement was recorded on the next day of the incident. He stated that he did not lodge any complaint against the accused regarding the incident of the evening involving his daughter Rupali and son Swapnil. He identified photograph of his daughter Rupali. He however expressed inability to identify her handwriting. He was shown a letter in the cross examination which was allegedly a letter written by Rupali to the 1st accused. He denied that Rupali was in love with 1st accused Bala and that she used to right love letters to the 1st accused. He denied that the handwriting on the letter shown to him was of Rupali. He denied that after learning of the incident from Swapnil he enquired with 10 Rupali and disclosed that she had a love affair with the 1st accused and was desirous of marrying with him. He denied the correctness of the suggestion that he alongwith his sons and 10 to 15 boys proceeded towards the house of Satardekar. He admitted that house of Satardekar is enclosed by a compound and there is a gate in the compound. He admitted that the house of 2nd and 3rd accused is near the bungalow of Satardekar. He stated that the house of the 4th accused was at a distance of half furlong from the house of 2nd and 3rd accused. He admitted that on 07th June 1996 there was a marriage in the house of Mahendra. He admitted that on his request Satardekar called accused persons. He volunteered that only the 1st accused had come to the bungalow of Satardekar. He pleaded ignorance about the correctness of the suggestion that the 1st accused was of the same age of his son Nitesh. He admitted that Nitesh was of fair complexion. He denied that his son Nitesh and 1st accused had similar complexion and similar physique. He denied the suggestion that one of the boys accompanying him had stabbed Nitesh as by mistake they considered Nitesh to be the 1st accused Bala. 8. P.W.No.6 Swapnil Kashinath Mhatre narrated the 11 incident which occurred in the evening. He deposed that the accused teased Rupali in the evening. He stated that the 1st accused abused and threatened him by enquiring as to why he was staring at him. He disclosed that he narrated incident to his father at 7.00 p.m. Thereafter he alongwith his father and brother proceeded to Swami Krupa bungalow which is owned by Satardekar. He stated that his father enquired as to where Bala was and his father questioned Bala about the incident and asked him about whereabouts of the other three accused. Thereupon Bala called other three persons. He stated that there was a quarrel between the accused and his father and the accused persons started the assault. He stated that when his brother Nitesh intervened, the accused persons started assaulting Nitesh. He described the blow given by the 1st accused Bala by knife on stomach of Nitesh. He stated that after Nitesh fell down the accused continued to beat his father. He stated that thereafter he ran away and informed about the incident to his uncle Kesarinath. In the cross examination he denied the suggestion that Nitesh had wheat colour complexion and was of good health. He denied the suggestion that his father had consumed liquor. He stated that his father had a talk with Satardekar for about two to three minutes and thereafter 12 Satardekar called Bala and the said Bala came out of house of Satardekar. He admitted that Satardekar was not aware as to for what purpose Bala was called by Kashinath. He admitted that the houses of the other three accused are close to the house of Satardekar. He denied the suggestion that there is no street light near the house of Satardekar. He denied the suggestion that he alongwith his father and brother had proceeded to the house of Satardekar with a view to teach the accused a lesson. 9. P.W.No.7 is one Dattatraya Patil who arrived at the scene of offence after the incident. He stated that he saw Nitesh lying by the side of the road with a bleeding injury on stomach and Kashinath was lying with a bleeding injury on left and right thigh. P.W.No.8 Pradeepkumar Thakur is alleged panch witness to the discovery of the knife at the instance of the 1st accused. In the cross examination he admitted that he signed two panchanamas after coming from Makunsar Naka to the police station and at the relevant time, the 1st accused was handcuffed. 10. P.W.No.9 Dr. Shashikant S. Talwar was at the relevant time working as a medical officer at Bhagwati 13 hospital at Borivali, Mumbai. He proved the injury certificate dated 03rd July 1996 showing the nature of injuries on the person of Kashinath. He stated that the injuries are possible by knife blows. In the cross examination he admitted that Kashinath was smelling of alcohol and he had mentioned the said fact in the medical certificate issued by him. He stated that the patient was referred to him by the Primary Health Centre at Saphala. He admitted that both the injuries were not on the vital part of the body. He admitted that these injuries can be self-inflicted. P.W. No.10 Dr. Milind Chintaman Randive was a medical officer in the Primary Health Centre at Saphala. He proved in evidence the injury certificates of accused Mahendra and Sandeep. He also proved the post mortem notes. He stated that he examined the injuries on the person of Shashikant (4th accused). 11. P.W.No.11 is Yogesh, son of Kesarinath. He deposed about the incident which occurred at 7.00 p.m on 07th June 1996. He was also cross examined by the counsel appearing for the accused. In the cross- examination he stated that there was a vadapav cart at about distance of 15 to 20 ft away from the house of Satardekar. He stated that his uncle and his cousins 14 came near Makunsar Naka after about 15 minutes when he reached cart on which vadapav was being sold. He stated that when his uncle reached the bungalow of Satardekar, he was on the road near the bungalow and he saw Satardekar coming out of bungalow after hearing the call given by his uncle Kashinath. He stated that the 1st accused called the remaining three accused on enquiry being made by his uncle Kashinath. He denied the suggestion that his uncle was drunk at the time of incident. 12. P.W.No.12 is the said Rupali (Dipti Dipesh Patil). She stated that at the time of incident she was unmarried and her age was 17 years. She described the incident which occurred at about 8.15 p.m on 07th June 1996 when she alongwith her cousin Varsha were sitting on the platform of the house of her uncle Harishchandra. She stated that at that time four persons were passing by the road. One of them was tall and with fair complexion and others were blackish in colour. She stated that they smiled at her. She stated that at that time her uncle Harishchandra had gone to the bathroom and he came out and asked those persons not to commit mischief and go away. She stated that the said persons enquired with her brother Swapnil as to why he was 15 starring at them. She stated that her brother replied that he was given eyes to see. Thereafter the said four persons abused her brother and went away. She described that after her father came back, Swapnil narrated the incident to his father. She stated that at 8.15 p.m her brother Swapnil came back to his house and informed that Nitesh and her father have been assaulted. In the cross examination she denied the suggestion that she was acquainted with the 1st accused. She admitted her photograph placed on record at Exhibit 34. She denied that she had a love affair with the 1st accused. She did not admit the letters shown to her and stated that she had not written the said letters. In the cross examination she admitted that Nitesh was tall and had fair complexion. However, she denied that his face and features were like that of 1st accused Bala. 13. P.W.No.13 is Shashikant Dattatraya Surve who was attached as Police Sub Inspector to Saphale Police Station at the relevant time. In the cross examination he admitted that in the year 1996 there was no canteen or cart selling vadapav at Makunsar Naka. He however denied the correctness of the suggestion that there are no street-lights at the scene of incident. He stated that while talking with Kashinath he did not noticed 16 whether he had consumed liquor. He categorically admitted that it transpired in investigation that 1st accused Bala and Rupali were having love affair with each other. Apart from the aforesaid witnesses examined by the prosecution, one Jitendra Kurle was examined as the first defence witness. He stated that he was working in a shop run by Bharat and 1st accused was working alongwith him in the said shop. He identified the photograph of Rupali at Exhibit 34 and stated that there was a love affair between respondent and the 1st accused. He stated that he used to handover chits written by Rupali to the 1st accused. He identified the said chits at Exhibits 65 to 69. He stated that Rupali and the 1st accused used to meet each other in his house for about one hour and at that time he used to remain away from the house. The defence examined one more witness by the name Ramkrishna Prabhakar Kate who was a Sarpanch of village Agarwadi since November 2002. He stated that in the year 1995-96 he was member of Street Lights Committee of the village and at Makunsar Naka there was no provision of street lights in the year 1995-96 and even today. 14. Apart from the aforesaid evidence there is a documentary evidence on record in the form of medical 17 certificates of the examination of the accused, the medical certificate which is already referred to above of the examination of Kashinath. The report of chemical analyser at Exhibit 57 shows that blood group of Nitesh was B and blood group of Kashinath was AB. There is another chemical analysers’ report at Exhibit 81 which shows that on the knife there was human blood of blood group B. 15. Criminal Appeal No.61 of 2006 has been preferred by the 1st accused Bala and Criminal Appeal No.1154 of 2005 has been filed by the other three accused. 16. The learned counsel appearing for the 1st accused has taken me through the notes of evidence and other documents on record. He pointed out that the evidence of the Investigating Officer discloses that there was a love affair between Rupali and the 1st accused. He pointed out that it is obvious from the evidence that Kashinath accompanied by his sons proceeded to the house of Satardekar with a view to teach lesson to the 1st and other accused. He pointed out that evidence on record showed that Kashinath was under influence of liquor at the relevant time. He submitted that there was evidence on record to show that 18 the 1st accused and Nitesh were having a similar same complexion and height. He pointed out that there was complete darkness in front of the house of Satardekar at the relevant time and Kashinath, his sons and other persons accompanying him indulged in free fight against the accused. He submitted that one of the boys accompanying Kashinath assaulted Nitesh with a knife as he thought that Nitesh was the 1st accused Bala considering their similar height and complexion. He submitted that going by the prosecution case it is obvious that when Satardekar called Bala out of his house he was not aware for what purpose he was being called by Kashinath. He pointed out that in the circumstances the prosecution case that Bala was carrying knife cannot be believed as Bala was not made aware as to for what purpose he was called by Satardekar. He pointed out that the knife which is allegedly discovered showed stains of blood group B which is the blood group of Nitesh. He stated that as per the prosecution version after assaulting Nitesh, the same knife was used for assaulting Kashinath whose blood group is AB. He submitted that the fact that knife had only the bloodstain of blood group B completely falsifies the case of the prosecution. He pointed out that this was a case of single blow. He also pointed 19 out that the prosecution case regarding alleged disclosure of the knife at the instance of the 1st accused by pointing out that a panch witness admitted of having signed the panchnama at police station and of seen the 1st accused handcuffed at that time. He submitted that the entire prosecution case deserves to be discarded. 17. The learned counsel appearing for the other accused in support of their appeal pointed out that there was no material on record to show that section 34 of the Indian Penal Code could