IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 4180 OF 2009 IN CRIMINAL APPEAL NO. 601 OF 2009 Saurabh @ Banti s/o Diliprao Kamble, age 19 years, occ. Education, R/o Ashok Nagar, Jangamwadi, Nanded ...Applicant VERSUS The State of Maharashtra, through police station, Bhagyanagar, Nanded ...Respondent ..... Shri S.B.Talekar, advocate for the applicant/accused no.1. Shri K.S.Patil, APP for the respondent. ..... CRIMINAL APPLICATION NO. 4357 OF 2009 IN CRIMINAL APPEAL NO. 627 OF 2009 Kiran s/o Sambhaji Phule, age 22 years, occ. Education, R/o Prabhat Nagar, Nanded ...Applicant VERSUS The State of Maharashtra, through police station, Bhagyanagar, Nanded ...Respondent ..... Shri S.B.Talekar, advocate for the applicant/accused no.5 Shri K.S.Patil, APP for the respondent. ..... CRIMINAL APPLICATION NO. 4317 OF 2009 IN CRIMINAL APPEAL NO. 619 OF 2009 1 Anil s/o Marotrao Dhongade age 21 years, occ. Nil, Ro Jangamwadi, Nanded District Nanded, 2 Vijay @ Anna s/o Chandrakant Lingayat, age 20 yrs., occ. Nil, r/o Rajsarthinagar, Taroda Naka, Nanded, 3 Sandeep @ Sandy s/o Bhagwanrao Karwande, age 20 yrs., occ. Nil, r/o Ektanagar, Nanded, 4 Vilas s/o Gangaram Waghmare, age 19 yrs., occ. Nil, r/o Sumedhnagar, Nanded ...Applicants VERSUS The State of Maharashtra, ...Respondent ..... Smt. S.S.Jadhav, advocate for the applicants/accused nos. 3, 6, 7 & 9. Shri K.S.Patil, APP for the respondent. ..... CRIMINAL APPLICATION NO. 23 OF 2009 IN CRIMINAL APPEAL NO. 2 OF 2010 Ganesh s/o Shriram Madavi, age 20 years, occ. Education, R/o Jangamwadi, Nanded, District Nanded ...Applicant VERSUS The State of Maharashtra, ...Respondent ..... Shri Joydeep Chatterjee, advocate for the applicant/accused no.4 Shri K.S.Patil, APP for the respondent. ..... CRIMINAL APPLICATION NO. 3992 OF 2009 IN CRIMINAL APPEAL NO. 580 OF 2009 Satish Prakash Wagre, age 24 years, occ. Student, R/o Ashok Nagar, Jangamwadi, Nanded ...Applicant VERSUS The State of Maharashtra, through Public Prosecutor For police station, Bhagyanagar, Nanded ...Respondent ..... Shri P.V.Mandlik, Senior advocate instructed by Shri Amol Gandhi, advocate for the applicant/accused no. 2. Shri K.S.Patil, APP for the respondent. ..... CRIMINAL APPLICATION NO. 46 OF 2009 IN CRIMINAL APPEAL NO. 5 OF 2010 Siddodhan @ Pintu s/o Narhari Rauth, age 23 years, occ. Education, R/o Sumedhnagar, Nanded ...Applicant VERSUS The State of Maharashtra, ...Respondent ..... Shri Sharad Bangar, advocate holding for Shri N.S.Ghanekar, advocate for applicant/accused no.8. Shri K.S.Patil, APP for the respondent. ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE ORDER : 22.01.2010 DATE OF PRONOUNCING THE ORDER : 27.01.2010 ORAL ORDER : (Per Shrihari P. Davare, J.) 1 The applicants, namely Saurabh @ Banti s/o Diliprao Kamble – original accused no.1; Kiran s/o Sambhaji Phule – original accused no. 5; Anil s/o Marotrao Dhongade – original accused no.3; Vijay @ Anna s/o Chandrakant Lingayat – original accused no.6; Sandeep @ Sandy s/o Bhagwanrao Karwande – original accused no.7; Vilas s/o Gangaram Waghmare – original accused no.9; Ganesh s/o Shriram Madavi – original accused no. 4; Satish Prakash Wagre – original accused no.2; and Siddodhan @ Pintu s/o Narhari Raut – original accused no.8; have preferred the respective Criminal Applications praying for suspension of substantive sentences inflicted upon them and also requesting for their enlargement on bail during the pendency of their respective Criminal Appeals. As all these applications arise out of the same incident, they are being disposed of by this common order. 2 By the said judgment and order dated 10.11.2009 rendered by the Additional Sessions Judge-2, Nanded, in Sessions Case No. 57 of 2009, the applicants herein were convicted for the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code and were sentenced to suffer imprisonment for life and also to pay fine of Rs. 1,500/- each with default condition of non-payment of fine to suffer R.I. for 3 months; for the offence punishable under Section 323 r/w Section 149 of the Indian Penal Code and were sentenced to suffer R.I. for six months and also to pay fine of Rs.500/- each with default condition of non-payment of fine to suffer S.I. for 1 month; for the offence of riot punishable under Section 147 of the Indian Penal Code and were sentenced to suffer R.I. for one year and also to pay fine of Rs.500/- each with default condition of non-payment of fine to suffer S.I. for 1 month; for the offence punishable under Section 148 of the Indian Penal Code and were sentenced to suffer R.I. for one year and also to pay fine of Rs. 500/- each with default condition of non-payment of fine to suffer S.I. for 1 month. All the above substantive sentences were directed to run concurrently. All the applicants herein, however, were acquitted for the offence punishable under Section 506 r/w Section 149 of the Indian Penal Code and Section 120B of the Indian Penal Code by the said judgment and order dated 10.11.2009. 3 The factual matrix of the prosecution case can be summarised as under and occurrence of incident is divided in two parts. Firstly, one Prashant Narsing Medpallewar (deceased) was Block President of Congress-I party and it is alleged that accused no.8 Siddodhan @ Pintu s/o Narhari Raut and his brother Balu Raut were stated to be habitual criminals and are prone to consume liquor and commit gundaism along with their associates. It is also alleged that accused no.6 Vijay Lingayat, accused no.1 Saurabh @ Banti s/o Diliprao Kamble, accused no.2 Satish Prakash Wagre, accused no.3 Anil Marotrao Dhongade, accused no.10 Kulchand Gorba Ghadge and other accused persons were the members of gang formed by accused no. 8 Siddodhan @ Pintu s/o Narhari Raut and his brother namely Vilas s/o Gangaram Waghmare – accused no. 9 and Balu Raut. Deceased Prashant had lodged a report with Bhagyanagar police station in respect of criminal activities of the said gang of accused persons. Moreover, the brother of accused no.8 Siddodhan @ Pintu Raut had contested the election to the post of President of Tanta Mukti Committee, as well as deceased Prashant had also contested the said election. However, there were disputes at the time of said election and therefore the said election could not be held. 4 According to the prosecution, because of all the above said reasons, the accused persons had a design to take revenge against deceased Prashant. PW17 the complainant herein, namely Nikhil Kurdukar, PW4 Swapnil Kawalgaonkar, PW5 Shekhar Bhalerao and PW11 Mahesh Thakur were the friends of deceased Prashant. 5 On this background, according to the prosecution, the first part of the incident took place on 18.11.2007 at about 6.15 p.m. when complainant Nikhil Kurdukar, deceased Prashant and Santosh Thakur were proceeding on the motor cycle from Sarpanchnagar to Babanagar via Jangamwadi and they reached to Jangamwadi square. At that time, accused no.2 Satish Wagre and accused no.1 Banti Kamble and their other associates were present in the said square. Somebody had pelted stone towards the motor cycle on which Nikhil Kurdukar, Prashant and Santosh Thakur were proceeding and also abused them. Deceased Prashant was driving the motor cycle and he stopped the same and asked these persons as to why they had pelted stones at their motor cycle and abused them. Thereupon, accused persons said that they had pelted stones and abused them and they may do whatever they wanted. Thereafter some altercation took place between complainant Nikhil Kurdukar, deceased Prashant and Santosh Thakur on one part and the accused persons on the other. Thereafter complainant Nikhil Kurdukar, deceased Prashant and Santosh Thakur went away towards Babanagar and further came to Baghyanagar square and stopped at hotel Rabdi and had tea. Thereafter, on the instructions of deceased Prashant, complainant Nikhil Kurdukar, Santosh Bhalerao and Shekhar Bhalerao proceeded to their houses and deceased Prashant was to come later on. Accordingly, they started returning to their houses on the motor cycle and when they reached to Jangamwadi square at about 8.00 to 8.50 p.m., accused persons obstructed them. Accused no.2 Satish Wagre asked the complainant Nikhil Kurdukar as to why the complainant and his friends had abused them earlier. By that time, PW4 – Swapnil Kawalgaonkar, Ashwin Shinde and PW11 Mahesh Tahkur arrived at the said spot. 6 The second part of the prosecution story recites that accused no.1 Banti Kamble and accused no.2 Satish Wagre started assaulting complainant Nikhil Kurdukar, who sustained injuries over his hand, head and near right eye. He saw knife in the hands of one of the assailants and hence he ran slightly away and telephoned deceased Prashant, who replied that he would be reaching at the spot within short time and accordingly complainant Nikhil Kurdukar met him near hospital of Dr. Hundiwala. Thereafter they went to Jangamwadi square together where accused persons were present. Thereafter deceased Prashant tried to talk with the accused persons and thereupon a verbal duet started between them. Thereafter accused no.1 Banti Kamble and accused no.2 Satish Wagre dragged complainant Nikhil Kurdukar to one side. Accused no.10 Kulchand Ghadge started hitting deceased Prashant by knife and hence Prashant tried to ward off the knife blows by hands and in that process he sustained injuries on hands. However, accused no.10 Kulchand Ghadge hit Prashant by knife on his chest and thereby Prashant fell down. Accused no.10 Kulchand Ghadge sat on the body of Prashant and started hitting him by knife. Moreover, accused no.6 Vijay Lingayat picked up a heavy stone weighing about 10 to 15 kgs. and hit Prashant over his chest. Thereafter Prashant turned over his stomach. Again accused no. 6 Vijay Lingayat hit the same stone on the back of Prashant. During the said assault, victim Prashant and complainant Nikhil Kurdukar sustained injuries and Prashant became unconscious. Thereafter accused persons ran away. Complainant Nikhil Kurdukar along with his friend PW4 Swapnil Kawalgaonkar took victim Prashant to the Civil Hospital, Nanded on motor cycle, where doctors declared Prashant dead. Hence, complainant Nikhil Kurdukar went to Bhagyanagar police station at 11.30 to 11.45 p.m. on the same day i.e. on 18.11.2007 and lodged the first information report and criminal law was set into motion accordingly. 7 Learned counsel Shri Talekar appearing for accused no.1 Saurabh @ Banti Kamble and accused no.5 Kiran Sambhaji Phule urged before us that the theory advanced by the prosecution in respect of formation of unlawful assembly by the accused persons and having accused persons armed with deadly weapons and in prosecution thereof committing the murder of victim Prashant, is baseless and same is without any cogent evidence and the finding given by the Trial Court in that respect is unsustainable and erroneous. Moreover, learned counsel Shri Talekar also canvassed that the occurrence of incident is divided in two parts and the assailants, figured in both the alleged incidents, are different and more particularly the name of accused no.5 Kiran Phule does not figure therein and present accused nos. 1 Saurabh @ Banti Kamble and 5 Kiran Phule do not belong to alleged group of accused no.8 Siddodhan @ Pintu Raut. According to the learned counsel Shri Talekar, PW17 Nikhil Kurdukar is the first informant, who also in fact has not supported the case of prosecution. Learned counsel further submitted that there are no allegations against accused no.1 Saurabh @ Banti Kamble that he assaulted the deceased and only his presence is referred to in the complaint and as stated herein above, there is no reference of presence of accused no. 5 Kiran Phule in the first information report. 8 Learned counsel Shri Talekar also urged that according to the prosecution, there were four eye witnesses to the occurrence of the incident, namely PW17 Nikhil Kurdukar, PW4 Swapnil Kawalgaonkar, PW5 Shekhar Bhalerao and PW11 Mahesh Thakur and none of the said eye witnesses have stated that accused no.1 Saurabh @ Banti Kamble and accused no.5 Kiran Phule were armed with any weapon and they have not attributed any overt act towards accused nos. 1 and 5 in the alleged commission of offence, except accused no.1 Saurabh @ Banti Kamble assaulting the complainant Nikhil Kurdukar by fist blows. Shri Talekar, learned counsel for accused nos. 1 and 5 also submitted that although the place of incident was a public place, it was strange that victim did not shout and seek for help and entire incident is fabricated and accused no.1 Saurabh @ Banti Kamble and accused no. 5 Kiran Phule have been implicated therein falsely. Learned counsel Shri Talekar also further submitted that accused no.1 Saurabh @ Banti Kamble and accused no. 5 Kiran Phule were on bail during the trial and they are the students and considering their young age, they may be enlarged on bail. 9 Learned counsel Smt. S.S.Jadhav appearing for accused no.3 Anil Dhongade, accused no.6 Vijay @ Anna Lingayat, accused no. 7 Sandeep @ Sandy Karwande and accused no.9 Vilas Waghmare, urged that the prosecution has adduced the evidence of four eye witnesses, namely PW17 Nikhil Kurdukar, PW4 Swapnil Kawalgaonkar, PW5 Shekhar Bhalerao and PW11 Mahesh Thakur. As regards the testimonies of said witnesses, learned counsel submitted that PW17 Nikhil Kurdukar has not referred name of accused no.3 Anil Dhongade in his examination-in-chief, but stated in cross-examination that his name in the first information report is not correct. Learned counsel also stated that testimony of PW4 Swapnil Kawalgaonkar is silent regarding presence and role of accused no.3 Anil Dhongade; whereas PW5 Shekhar Bhalerao has stated in examination-in-chief that accused no.3 Anil Dhongade was present on the spot, but testimony of PW11 Mahesh Thakur is silent in that respect. 10 As regards accused no.6 Vijay Lingayat, learned counsel Smt. Jadhav invited our attention to the deposition of complainant PW17 Nikhil Kurdukar and stated that PW17 Nikhil Kurdukar stated in his examination-in-chief that accused no.6 Vijay Lingayat picked up a stone and hit over the chest of deceased Prashant and also on the back of the deceased. Learned counsel submitted that the said aspect has come under the omission in para 12 of cross-examination of the said witness. Moreover, learned counsel Smt. Jadhav submitted that PW4 Swapnil Kawalgaonkar stated in his examination-in-chief that accused no. 6 Vijay Lingayat assaulted deceased by means of stone on the chest and back of deceased Prashant. So also, PW5 Shekhar Bhalerao in his examination-in-chief stated that accused no. 6 Vijay Lingayat was present on the spot and he hit a stone on the chest and back of victim Prashant. However, learned counsel Smt. Jadhav submitted that the said part is under the omission in cross-examination of the said witness. Moreover, it is pointed out that PW11 Mahesh Thakur stated in his testimony that PW6 Vijay Lingayat hit victim Prashant by means of stone on his chest and back, but it is submitted that the said contents come under the omission in cross-examination of the said witness. 11 According to Smt. Jadhav, learned counsel, as regards accused no. 7 Sandeep Karwande, there is no reference of his name in the examination-in-chief of complainant Nikhil Kurdukar and since he has not supported the case of prosecution, learned A.P.P. put questions to him in cross-examination, wherein he stated that name of accused no. 7 in the first information report is not correct. It is submitted that the testimony of PW4 Swapnil Kawalgaonkar is silent in respect of presence and the role attributed to accused no. 7 Sandeep Karwande in the occurrence of the incident; whereas PW5 Shekhar Bhalerao stated in his deposition that accused no. 7 Sandeep Karwande was present on the spot. Learned counsel submitted that PW11 Mahesh Thakur deposed in his evidence that accused no.7 Sandeep Karwande was present on the spot and was armed with iron rod and thereby assaulted complainant Nikhil Kurdukar and victim Prashant. 12 As regards accused no.9 Vilas Waghmare, learned counsel Smt. Jadhav submitted that there is no reference of name of accused no. 9 Vilas Waghmare in the examination-in-chief of PW17 Nikhil Kurdukar. As stated herein above, since the said witness did not support the case of prosecution, learned A.P.P. put questions to him during cross- examination, wherein he stated that name of accused no.9 Vilas Waghmare in the first information report is not correct. Moreover, our attention was invited to the fact that the testimony of PW5 Swapnil Kawalgaonkar is silent in respect of any overt act of accused no. 9 Vilas Waghmare in the occurrence of the incident. However, it is stated by PW5 Swapnil in his evidence that accused no.9 Vilas Waghmare was simply present on the spot and he was armed with iron rod and assaulted the complainant and deceased Prashant. However, it is submitted that there is omission in respect of the word, ‘iron’ in cross- examination. It is further canvassed that PW11 Mahesh Thakur stated in his deposition that accused no. 9 Vilas Waghmare was present at the place of occurrence of the incident and he was armed with iron rod. 13 Learned counsel Smt. Jadhav further submitted that there was no question of any unlawful assembly and common object to assault PW17 Nikhil Kurdukar and victim Prashant and the finding recorded by the trial Court in that respect is erroneous and unsustainable. It was also canvassed that although allegations are made against accused no. 6 Vijay Lingayat that he hit the heavy stone weighing 15 to 20 kgs. on the chest and back of deceased Prashant, it is material to note that the postmortem notes do not show any crush injury and it is submitted that had accused no. 6 Vijay Lingayat hit by such a heavy stone weighing about 15 to 20 kgs. on the chest and back of victim Prashant, victim would have sustained crush injuries, but same were not found in column no.17 of the postmortem notes, and therefore, the said allegations sans of any merit. Accordingly, learned counsel submitted that accused no.3 Anil Dhongade, accused no.6 Vijay @ Anna Lingayat, accused no. 7 Sandeep @ Sandy Karwande and accused no.9 Vilas Waghmare are entitled to be enlarged on bail. 14 Learned counsel Shri Joydeep Chatterjee appearing for accused no. 4 Ganesh Shriram Madavi submitted that although PW4 Swapnil Kawalgaonkar has not ascribed any specific overt act to accused no.4 Ganesh in the occurrence of the incident, and nothing was recovered from the possession of accused no.4 Ganesh. It is further canvassed that PW5 Shekhar Bhalerao has not stated the presence of accused no.4 Ganesh initially and has not named accused no.4 Ganesh as the participant in the actual assault and subsequently stated that he can state the names of assailants and thereunder referred the name of accused no.4 Ganesh. As regards testimony of PW11 Mahesh Thakur, learned counsel Shri Chatterjee canvassed that his testimony is silent regarding presence of accused no.4 Ganesh at the place of incident, but last sentence of his testimony reflects that accused no.4 Ganesh, present in the court, was the same. 15 Learned counsel Shri Chatterjee urged that since accused no.4 Ganesh Madavi is a student and considering his young age, as also, since accused no.4 Ganesh was not armed with any weapon and no specific overt act has been attributed to him during the occurrence of the incident, he is entitled to be released on bail. It is submitted by learned counsel Shri Chatterjee that considering young age of accused no.4 Ganesh and also considering the fact that he is student, he be enlarged on bail during the pendency of appeal. 16 As regards accused no.2 Satish Wagre, learned Senior counsel Shri P.V.Mandlik instructed by Shri Amol Gandhi, advocate, submitted that accused no.2 Satish is a physically handicapped person, having 41 per cent disability and he is an infirm person. It is also submitted that accused no.2 Satish did not participate in the alleged assault upon deceased and no recovery of any weapon has been effected from his possession or at his instance. Moreover, it is also canvassed that accused no.2 Satish is not having any criminal history and there are no criminal antecedents of accused no.2 Satish. It is further stated that the case of accused no.2 Satish Wagre stands on different footing than other accused and there is no prima facie material against accused no.2 Satish. It is further submitted that accused no.2 Satish was on bail during the pendency of trial, and therefore, accused no.2 Satish deserves to be enlarged on bail during the pendency of appeal also. 17 Learned counsel Shri Sharad Bangar holding for Shri N.S.Ghanekar, advocate appearing for accused no.8 Siddodhan @ Pintu Narhari Raut submitted that there are mere allegations of having gang formed by accused no. 8 Siddodhan, however, the prosecution has failed to prove the said allegations by cogent evidence. He also submitted that no role has been ascribed to accused no. 8 Siddodhan in the occurrence of the alleged incident. It is further submitted that some of the eye witnesses refer to have witnessed the presence of accused no. 8 Siddodhan at the time of occurrence of incident; whereas some of the eye witnesses do not refer to the presence of accused no. 8 Siddodhan at the time of occurrence of incident, and therefore, testimony of said eye witnesses come under the suspicion and same cannot be construed as the basis and foundation to inflict conviction against accused no. 8 Siddodhan. 18 Learned A.P.P. Shri K.S.Patil opposed the present applications vehemently and submitted that the prosecution has adduced and produced the convincing incriminating evidence against the accused persons, and therefore, learned Trial Court has rightly convicted and sentenced the accused persons as afore said and accordingly, learned A.P.P. supported the judgment of the learned Trial Court. Learned A.P.P. submitted that there are 4 eye witnesses to the occurrence of the incident, who have categorically stated that accused persons formed unlawful assembly and they were armed with deadly weapons and in prosecution of the common object of killing victim Prashant, they assaulted victim Prashant as well as complainant Nikhil Kurdukar by deadly weapons like dagger heavy stone, and iron rod, whereby victim Prashant and complainant Nikhil Kurdukar sustained multiple injuries and victim Prashant succumbed to the said injuries and expired on the very day of incident i.e. 18.11.2007, and therefore, it is submitted that there is overwhelming evidence against the accused persons, and hence, they are not entitled to be enlarged on bail. 19 We have perused the R. and Ps. with the assistance of learned counsel for the applicants as well as the learned A.P.P. for the State. We have also considered the submissions advanced by learned counsel for the parties anxiously and without adverting to the aspect of formation of unlawful assembly by accused persons in prosecution of common object to commit murder of victim Prashant, which is a matter of appreciation of evidence, which cannot be done at this stage. We feel it necessary to consider the testimonies of 4 eye witnesses, nemely, PW4 Swapnil Kawalgaonkar, PW5 Shekhar Bhalerao, PW11 Mahesh Thakur and PW17 Nikhil Kurdukar and on perusal of deposition of PW4 Swapnil Kawalgaonkar, it appears that he has attributed vital role to accused no. 6 Vijay @ Anna Lingayat, accused no. 8 Siddodhan @ Pintu Raut and accused no. 10 Kulchand Ghadge, since accused no.8 Siddodhan @ Pintu Raut took khanjar from accused no. 10 Kulchand Ghadge and gave blows on the chest, stomach (chest side) and leg of Prashant and again accused no.10 Kulchand Ghadge took that khanjar and assaulted Prashant in many directions, and he further stated that accused no. 6 Vijay @ Anna Lingayat hit a stone of 15 to 20 kgs. on the chest of Prashant and again he lifted that stone and hit the said stone on the back of Prashant. 20 Moreover, on perusal of testimony of another eye witnesses PW5 Shekhar Bhalerao, it is seen that he has stated that there was iron rod in the hands of accused no. 7 Sandeep @ Sandy Karwande and accused no. 9 Vilas Waghmare and they assaulted to Nikhil and Prashant (victim) by that iron rod; whereas accused no. 10 Kulchand Ghadge gave blows of khanjar to Prashant in many directions. He further stated