(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 313 OF 2001 1. Mahadeo Nathuram Shirke ] Aged 27 years ] ] 2. Raghunath Nathuram ] Shirke, Aged 36 yrs. ] ] 3. Rajaram Nathuram ] Shirke, Aged 30 yrs. ] All resident of ] Nandalapur, Taluka ] Karad, Dist.Satara ]..Appellants (Org.Accused Nos.1 to 3) Vs. 1. State of Maharashtra ] ] 2. Valmik Dhondiram Shirke ] r/o Nandalpur, Taluka ] Karad, Dist.Satara ] Added party as per ] Court’s order ] dated 20.12.2001 passed ] in Cri.Application No. ] 2087 of 2001. ] ] 3. Smt.Chhaya Sambhaji ] Shirke, age 36 yrs. ] ] 4. Kum.Varsha Sambhaji ] Shirke, Age 17 yrs. ] ] 5. Kum.Vaibhav Sambhaji ] Shirke, Age 15 yrs. ] ] 6. Kum.Vaishali @ Rani S. ] Shirke, Age 13 yrs. ] ] 7. Kum.Vijay Sambhaji ] Shirke, Age 7 yrs. ] All residing at ] Nandgaon, Tal.Karad, ] Dist.Satara. ] (Respondent nos.4 to 7 ] minors through their ] mother and Natural ] Guardian, the Respondent] No.3 Smt.Chhaya S.Shirke]..Respondents (-2-) .... Shri.P.P.Hudlikar with Shri.B.K.Raje Advocates for appellants Shri.D.S.Mhaispurkar, A.P.P. for Respondent no.1-State Shri.M.S.Mohite with Shri.S.V.Kotwal with Ms.Sharmila Kaushik Advocates for Respondent nos.2 & 3. .... CORAM CORAM CORAM : H.L.GOKHALE AND : H.L.GOKHALE AND : H.L.GOKHALE AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE DATE DATE : SEPTEMBER 3,2004 : SEPTEMBER 3,2004 : SEPTEMBER 3,2004 ORAL ORAL ORAL JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.) JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.) JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.) 1. Through this appeal the appellants (original accused nos.1 to 3) challenged the judgment and order dated 27th April, 2001 passed by the learned Additional Sessions Judge, Karad in Sessions Case No. 120 of 2000 (old Sessions Case No. 131 of 1997). By the said judgment and order, all the three appellants have been convicted and sentenced to undergo R.I. for life and to pay a fine of Rs.10,000/- each i/d to suffer S.I. for three months for the offence under Section 302 read with Section 34 of IPC. All the three appellants have also been convicted for the offence under Section 504 read with Section 34 of IPC, 506 read with Section 34 of IPC, 324 read with Section 34 of IPC and 323 read with Section 34 of IPC. For the offence under Section 504 read with Section 34 of IPC, the appellants have been sentenced to suffer R.I. for one year and to pay a fine of Rs.500/- each i/d to suffer S.I. for two weeks. For (-3-) the offence under Section 506 read with Section 34 of IPC, the appellants have been sentenced to R.I. for one year and to pay a fine of Rs.500/- each i/d of payment of fine, S.I. for two weeks. For the offence under Section 324 read with Section 34 of IPC, the appellants have been sentenced to R.I. for three years and to pay a fine of Rs.1000/- each i/d of payment of fine, S.I. for three weeks. For the offence under Section 323 read with Section 34 of IPC, the appellants have been sentenced to R.I. for six months and to pay a fine of Rs.500/- each i/d of payment of fine, S.I. for two weeks. 2. The prosecution case briefly stated is as under: . That the complainant Valmik Dhondiram Shirke P.W.2 resides with his family at Nandlapur near S.C. Industries in Karad Taluka. Deceased Sambhaji Shirke was residing along with his family at Nandlapur. All the three accused are also residing along with their family members at Nandlapur. All the three accused were closely related to Sambhaji Shirke. There were disputes between the family of Sambhaji Shirke and the accused persons on account of some land. Disputes arose on account of consolidation scheme due to which superior and fertile lands of the deceased Sambhaji went to the share of accused persons about (-4-) 20 years prior to the incident and inferior land of the accused persons came to the share of the deceased Sambhaji Shirke. The relations between accused persons and the deceased Sambhaji Shirke were strained and they were not on talking terms with each other. The accused and the deceased Sambhaji Shirke had a common well and they were taking water from the said common well to supply water to their respective lands as per their shares and as per their turn in rotation. On account of grudge, the accused persons used to pick up quarrels with the deceased Sambhaji Shirke and his family on flimsy grounds. About four years prior to the incident, the accused persons had abused and beat deceased Sambhaji Shirke and his brother Tulshiram and therefore, Sambhaji Shirke had lodged complaint against them in the Police Station. 3. On the date of incident i.e. on 12th June, 1997 at about 8 a.m. the complainant i.e. P.W.2 Valmik and deceased Sambhaji Shirke went to the common well to take bath. At that time, accused Raghunath was standing on the steps inside the well. At that time, accused Mahadeo and Rajaram were standing on the bank of the well. Sambhaji Shirke and Valmik Shirke went into the well to have a bath. At that time, Sambhaji Shirke asked Raghunath for way to enter the well. Raghunath abused deceased Sambhaji Shirke and quarrel (-5-) took place between them. P.W.7 Anil Shirke was standing on the bank of the well. Valmik took both Raghunath and Sambhaji outside the well. All the accused persons i.e. Rajaram, Raghunath and Mahadeo started beating deceased Sambhaji Shirke with hands and Sambhaji Shirke also started beating the accused persons. Anil and Valmik settled the quarrel. At that time, accused Rajaram, Raghunath and Mahadeo abused Sambhaji loudly and went to their house. Sambhaji Shirke told P.W.2 Valmik that they will first go to Tulshiram i.e. brother of Sambhaji near brick furnace and thereafter they will go to the Police Station to lodge a complaint. 4. Both Sambhaji Shirke and Valmik Shirke started proceeding towards brick furnace which is about a few minutes distance from the well. The well is on the eastern side of the highway and the brick furnace is on the western side of the highway. Both of them crossed the highway and were proceeding towards brick furnace to Kolhapur side on the highway from western side. When they reached near milestone No. 677, at that time accused Rajaram, Mahadeo and Raghunath came running from their house from front side of Valmik and Sambhaji Shirke. All the three accused were armed with weapons. Accused Rajaram was armed with an axe and accused Mahadeo and Raghunath were armed (-6-) with knives. Accused Raghunath assaulted Sambhaji with knife (article 16) near his private organs i.e. in his lower abdomen. Accused Mahadeo assaulted Sambhaji on his chest with knife (article no.3). Accused Mahadeo shouted that Sambhaji should be finished and he should not be kept alive. Then accused Rajaram assaulted Sambhaji with an axe (article no.4). Sambhaji resisted the said assault by his right hand. Accused Mahadeo wanted to give second blow with knife, at that time, witness Valmik caught hold the blade of knife which was in the hand of accused Mahadeo. Accused Mahadeo gave forcible jerk to the knife due to which, Valmik sustained injuries on his right hand. P.W.2 Valmik received injuries on his back and head as accused Rajaram assaulted P.W.2 Valmik on his back and head by the blunt side of the axe. 5. In the meanwhile, P.W.8 Balu Nikam came there and he took the knife from the hands of the accused Mahadeo. Meanwhile P.W.6 Dattatray Lavand, Shivaji Shirke and Shamrao Kumbhar also came there. P.W.6 Dattatray Lavand and Shamrao Shirke snatched away the axe from the hands of Rajaram. Raghunath said that the job of Sambhaji is finished and let us go to the house and he went to his house holding the knife in his hand. Rajaram and Mahadeo also went towards (-7-) their house. In the said incident, P.W.2 Valmik Shirke suffered injuries on his hand, back, head and thigh and due to the incident, Sambhaji Shirke became unconscious. Thereafter, Sambhaji Shirke was put in a rickshaw and taken to Krishna Charitable Hospital. There Doctor had examined Sambhaji Shirke and declared him dead. Thereafter, P.W.2 Valmik Shirke went to the Police Station by rickshaw and narrated the whole incident to the police. The said statement was reduced into writing. This is treated as F.I.R. which is at Exhibit-53. The said F.I.R. was recorded at 9.10 a.m. Thereafter, P.W.2 Valmik was taken by the police to cottage hospital where he came to be treated for his injuries. The body of Sambhaji Shirke was sent for post-mortem. The post mortem was conducted on 12th June, 1997 at about 3.10 p.m. The post mortem was conducted by P.W.10 Dr.Salunke and P.W.9 Dr.Sanjay Chivte. The following external injuries were found on Sambhaji Shirke. 1. Abrasion over left angle of mandible 1 inch in diameter. Circular reddish blackish. 2. Contusion over left scapula vertical and oblique 3 x 2 inch with abrasion in centre. Linier 3 x 1/8 inch in (-8-) length. 3. Contusion over left side of chest in axilla 3 inch below oblique 4 inch x 3 inch with abrasion at centre. 4. Incised stab wound half inch above and medial to left nipple in 4th space elliptical 1/2 x 1 and 1/2 x 3/4 inch margins clear. Cavity deep. 5. Incised cut wound over left space in between right thumb and index finger. Planter aspect. 2 inch x 1/4 x 1/4. 6. Incised wound stab just left to pubic tubercle. Oblique 1" x 1/4" x Cavity deep. Margins clear red in colour. Cause of injuries was given as hard and blunt weapon for injury nos.1,2 and 3. Hard and sharp for injury nos.4,5 and 6. Age within 12 hours. In the opinion of the Doctor, all these injuries were ante mortem. 6. On internal examination, it was found that thorax pectoralis major and inter coastal muscle of left side of chest in fourth space was cut obliquely (-9-) corresponding to injury no.4. . The pluera was also torn corresponding to injury no.4. The haemo thorax was seen with about half litre of blood. Right lung was pale and left lung showed laceration/tear in the left middle lobe anteriorily near midline going medially and upwards. . On internal examination of abdomen, I noticed that rectus sheath was torn corresponding to injury no.6, going upwards and inwards. Perritorium was teared corresponding to injury no.6. Abdominal cavity was filled with blood about two litres. Small intestine was pale with perforation seen in ileum 3 feet away from iliocecal junction with measantrary tear. Injury was elliptical 3/4 inch x 1/4th inch cavity deep lung deep large intestine was pale. . Cause of death was due to haemorrhagic shock following rupture of left lung and intestine perforation with measenttric tear. . In the opinion of Doctor, injury nos.4 and 6 with corresponding internal damage will cause death of person in ordinary course of nature. On sustaining injury no.4 and 6 and having suffered blood loss a person can go into shock and death will be immediate (-10-) one. 7. After completion of investigation, the charge-sheet came to be filed. The case was committed to the Court of Sessions in the usual manner. During the course of trial, the appellants came to be charged for the offence punishable under Sections 302, 504, 506, 324 and 323 read with Section 34 of IPC. All the accused pleaded not guilty and claimed to be tried. Their defence is that of false implication. 8. During the trial, in all prosecution examined 13 witnesses. Out of the said witnesses, three of them are eye witnesses i.e. Complainant P.W.2 Valmik Shirke, P.W.6 Dattatray Lavand and P.W.8 Balu Nikam. It may be stated here that P.W.2 Valmik is an injured witness. 9. The learned Sessions Judge has relied on the evidence of these three eye witnesses and other evidence in this case and has convicted and sentenced all the three appellants as stated above in para no.1 of this judgment. Hence, this appeal. 10. We have heard Mr.Hudlikar, the learned counsel appearing for the appellants, Mr.Mhaispurkar the (-11-) learned A.P.P. appearing for the State, Mr.V.S.Kotwal with Mr.M.S.Mohite, the learned advocate for the injured and heirs of the deceased i.e. respondent nos.2 to 7. The respondent no.2 is the complainant and injured witness in the present case and respondent nos.3 to 7 are the wife and children of deceased Sambhaji Shirke. We have also gone through the entire evidence on record and the impugned judgment. We are constrained to observe that we do not find any merit in this appeal and in our view, the appeal deserves to be dismissed. 11. As stated earlier, the conviction is mainly based on the ocular evidence of the three eye witnesses i.e. P.W.2 Valmik Shirke, P.W.6 Dattatray Lavand and P.W.8 Balu Nikam. We first propose to take the evidence of P.W.2 Valmik Shirke. 12. P.W.2 Valmik Shirke is the complainant in the present case. He is also the injured eye witness in the incident. Since we have set out the prosecution story on the basis of recitals contained in the examination-in-chief of the complainant P.W.2 Valmik Shirke, we only intend to broadly refer to his evidence here. His evidence shows that there were strained relations between the accused and deceased Sambhaji Shirke. On the date of the incident i.e. (-12-) on 12th June, 1997 at about 8 a.m. he went to the common well to have a bath. At that time, accused Raghunath and witness Anil were standing on the steps inside the well and accused Rajaram and Mahadeo were standing near the bank of the well. Deceased Sambhaji Shirke asked accused Raghunath for way to enter into the well, whereupon Raghunath abused him in filthy language and quarrel took place between them. However, P.W.2 Valmik Shirke brought both Raghunath and Sambhaji outside the well. All the three accused i.e. Rajaram, Raghunath and Mahadeo started beating Sambhaji with hands and Sambhaji also started beating them. P.W.2 Valmik tried to settle the quarrel between the accused and Sambhaji. Thereupon, Rajaram, Raghunath and Mahadeo abused Sambhaji & went to their house. Sambhaji told Valmik that they will go first to Tulshiram i.e. brother of Sambhaji towards the brick furnace and thereafter they will go to the police station to lodge the complaint. From the well which is on the eastern side of the highway, they proceeded towards brick furnace. After crossing the highway when they reached near milestone no. 677, they saw all the three accused coming running towards them from their front side. All the three accused were armed with weapons. Rajaram was armed with axe (article no.4). Mahadeo was armed with knife (article no.3) and Raghunath was (-13-) armed with knife (article no.16). Mahadeo assaulted Sambhaji on his chest by knife and then he shouted to finish Sambhaji and not to keep him alive. Thereafter, Raghunath assaulted deceased Sambhaji with a knife in his lower abdomen. Thereafter Rajaram assaulted Sambhaji by axe. Sambhaji resisted the said assault by his right hand. Mahadeo wanted to give second knife blow, in the meantime, P.W.2 Valmik Shirke caught hold of blade of the knife which was in the hand of Mahadeo. Rajaram assaulted Valmik on his back and head by means of butt end of the axe. In the meanwhile, Mahadeo gave a forcible jerk by which Valmik sustained injuries on his hand due to the knife blade. In the meanwhile, P.W.8 Balu Nikam, P.W.6 Dattatraya Lavand and Shamrao Kumbhar came there. P.W. 8 Balu Nikam snatched the knife from the hands of Mahadeo and P.W.6 Dattatraya Lavand and Shamrao snatched away the axe from the hands of Rajaram. Raghunath then told that job of Sambhaji is finished and let us go to the house and he went towards his house holding knife in his hand. Due to the assault, Sambhaji became unconscious. He was shifted to Krishna Charitable Hospital. There Doctor examined him and declared him dead. Thereafter, P.W.2 Valmik went to the Police Station and lodged complaint Exhibit-53. The said complaint was registered at 9.10 a.m. P.W.2 Valmik has identified (-14-) Bermuda (article no.5) and Banyan (article no.6) i.e. the clothes which were on the person of Mahadeo at the time of incident. He has also identified ash pant and banian article nos. 7 and 8 which were on the person of Raghunath at the time of incident. He has also identified Lungi and Banian article nos.9 and 10 which were on the person of Rajaram at the time of incident. This witness has also identified the weapons. He has stated that the knife article no.3 was in the hand of Mahadeo, the knife article no.16 was in the hand of Raghunath and axe article 4 was in the hand of Rajaram at the time of incident. 13. The learned advocate for the appellants has submitted that there are large number of omissions in the evidence of P.W.2 Valmik Shirke and if these omissions are taken into account, then there is hardly anything which would connect the appellants with the crime. We have carefully perused the examination in chief as well as cross-exmaination of witness Valmik. We have noticed that in respect of evidence of P.W.2 Valmik which has been reproduced above, there are no omissions or contradictions. Thus, as far as the evidence of P.W.2 Valmik is concerned, we find the same to be reliable and trustworthy and we have no hesitation in relying on (-15-) the same. 14. The second eye witness who has been examined in the present case, is P.W.8 Balu Nikam. P.W.8 Balu was also resident of Nandlapur and just like P.W.2 Valmik, he also knew all the accused persons as they were also from the same village. P.W.8 Balu also knew Sambhaji Shirke. This witness has stated that on 12th June, 1997 at about 8 a.m. he was proceeding towards field known as ‘Bighe’ for bringing fodder. For reaching the field, he had to come to the highway. When he reached the highway, P.W.6 Dattatraya Lavand met him near S.C.Industry. Dattatraya was proceeding towards Kolhapur side. Both of them started going towards Kolhapur side. This witness has stated that infront of them, Sambhaji and P.W.2 Valmik were also proceeding towards Kolhapur side on the highway. The distance between this witness and Sambhaji was about 10 to 15 feet. At that time, he saw the accused persons were armed with weapons. Accused Mahadeo was armed with knife, Accused Raghunath was armed with knife and Accused Rajaram was armed with an axe. They came infront of Sambhaji. Accused Mahadeo assaulted Sambhaji on his chest by knife and accused Raghunath assaulted with knife to Sambhaji on his lower abdomen. Accused Rajaram assaulted Sambhaji with an (-16-) axe. Witness P.W.8 Balu has also stated that P.W.2 Valmik caught hold of the knife which was in the hand of Mahadeo. Rajaram was assaulting P.W.2 Valmik on his backside. Balu Nikam snatched the knife from the hands of Mahadeo. He has stated that P.W.6 Dattatraya Lavand and Shivaji snatched axe from the hands of Rajaram. Sambhaji fell on the ground and he became unconscious. Raghunath ran away from the spot holding the knife in his hand, so also, the other accused left the spot. This witness has stated that the knife which he had snatched from the hand of Mahadeo and axe which was snatched from the hand of Rajaram by Dattatray Lavand and Shivaji, were kept by this witness in his house. He then went to Krishna Charitable Hospital Karad and at the hospital, he came to know that Sambhaji had already expired. Nothing has been elicited in the cross-examination of this witness so as to disbelieve his testimony in respect of the incident and the role played by each of the accused persons. 15. The next witness is P.W.6 Dattatraya Lavand. This witness is a resident of Nandlapur. This witness has stated that he knew all the accused who are residents of same village. He has also stated that he knew Sambhaji who was also resident of Nandlapur. This witness has further stated that on (-17-) 12th June, 1997 at about 8.15 a.m. he was proceeding towards his field from the highway. While he was proceeding towards Kolhapur side, he met P.W.8 Balu Nikam of his village. They proceeded ahead together. Infront of them, they saw Sambhaji and Valmik were also proceeding towards Kolhapur side. This witness has stated that he saw all the three accused came from the front side of Sambhaji from their house. This witness has further stated that Mahadeo and Raghunath were armed with knives and Rajaram was armed with an axe. He has further stated that Mahadeo gave knife blow on the chest of Sambhaji and accused Raghunath gave knife blow on the lower abdomen of Sambhaji and Rajaram assaulted Sambhaji and Valmik with an axe. Mahadeo wanted to again assault Sambhaji, but at that time, Valmik caught hold the knife. Balu Nikam quickly took out the knife from the hands of Mahadeo. This witness has stated that he took away the axe from the hands of Rajaram. Due to the assault, Sambhaji fell on the ground. Accused then went towards their house. This witness along with P.W.2 Valmik, Tulshiram and others took Sambhaji to the hospital. There, Sambhaji was examined and declared dead. Thereafter, P.W.2 Valmik went to the police station to lodge the complaint. In the cross examination, nothing has been brought out so as to discredit the testimony of this witness. (-18-) 16. The learned advocate for the appellants has submitted that in the present case, it was deceased Sambhaji, Valmik and others who had come there with weapons to assault the accused persons and in the scuffle, Sambhaji and Valmik received the injuries. We find the defence put forward on behalf of the appellants to be improbable and impossible. We say so after looking to the injuries suffered by Sambhaji which are two incised wounds on the chest and lower abdomen. Besides these two injuries, Sambhaji had one incised cut wound over webspace between the right thumb and index finger 2"x1/4"x1/4". Two contusions one on the left scapula and one on the left side of the chest and one abrasion on angle of mandible. Looking to the nature of the injuries on the body of Sambhaji, we find it difficult to accept the submission made on behalf of the accused that all the injuries to Sambhaji were caused in the scuffle. If the defence version is to be accepted that Sambhaji and Valmik and other 2 to 3 were armed and none from the side of the accused were armed, there would be serious and more injuries on the body of the accused persons. All the accused persons have been sent for medical examination on the very same day of the incident. P.W.10 Dr.Chivate examined them and found that Mahadeo had two injuries on his person i.e. (-19-) abrasion on both knee joint and abrasion on palm. Both the injuries were simple in nature. Accused Raghunath had two injuries on his body i.e. small multiple minute abrasion over right elbow joint and small multiple abrasions over back scapula and inner scapular region. Accused Rajaram sustained three injuries one is abrasion on the scapula area, one abrasion on the right arm and abrasion on the right thumb. P.W.9 Dr.Salunke had examined all the three accused persons. He has stated that injuries suffered by all the accused persons were simple in nature. The certificates relating to the injuries suffered by the three accused persons are at Exhibits-69, 70 and 71. 17. Doctor Chivate (P.W.10) also examined the complainant P.W.2 Valmik and he has noticed six injuries on his person. The first is an incised wound on the right palm. Linier abrasion lateral to injury no.1 oblique 4" in length, linier abrasion on the right thigh 8 cm. in length, injury on the right finger of right hand, abrasion