Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 84 OF 2008 The State of Maharashtra Through Nanded (Rural) Police Station, Nanded. ....Appellant. Versus 1. Sambhaji s/o. Madhavrao Girde, Age 50 yrs., Occu. Agriculture, 2. Shivaji s/o. Madhavrao Girde, Age 40 yrs., Occu. Agriculture, 3. Kailash s/o. Jagdeorao Girde, Age 18 yrs., Occu. Agriculture, 4. Govind s/o. Tavaji Girde, Age 55 yrs., Occu. Agriculture, 5. Sheshrao s/o. Sambhaji Girde, Age 35 yrs., Occu. Agriculture, 6. Uttam s/o. Digamber Girde, Age 22 yrs., Occu. Agriculture, 7. Narba s/o. Bhujanga Girde, Age 60 yrs., Occu. Agriculture, 8. Uttam s/o. Ananda Pawar, Age 45 yrs., Occu. Agriculture, 9. Sheshrao s/o. Anandrao Pawar, Age 35 yrs., Occu. Agriculture, 10. Rajesh Digamber Girde, Age 30 yrs., Occu. AGriculture, Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 2 11. Suresh s/o. Ramji Pawar, Age 27 yrs., Occu. Agriculture, 12. Raosaheb Govindrao Girde, Age 32 yrs., Occu. Agriculture, 13. Baban s/o. Kondiba Girde, Age 18 yrs., Occu. Agriculture, 14. Hanmant s/o. Dadarao Girde, Age 19 yrs., Occu. Agriculture, 15. Santosh Bajirao Girde, Age 19 yrs., Occu. Agriculture, 16. Shivaji s/o. Govindrao Girde, Age 19 yrs., Occu. Agriculture, 17. Shivkumar Digamber Pawar, Age 23 yrs., Occu. Agriculture, 18. Lakdu s/o. Dadarao Girde, Age 21 yrs., Occu. Agriculture, 19. Mahadu s/o. Sambhaji Girde, Age 40 yrs., Occu. Agriculture, All R/o. Asadwan, Tq. & Dist. Nanded. ....Respondents. Mr. K.G. Patil, APP for appellant. Mr. N.K. Kakade, Advocate for respondent Nos. 14 & 18. Shri. R.D. Biradar, Advocate for respondent Nos. 1 to 13, 15 to 17 and 19. Appeal is admitted only against respondent Nos. 11 to 14, 17 & 18 as per orders dated 29.2.2008 and 28.3.2008. Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 3 WITH CRIMINAL APPEAL NO. 85 OF 2008 The State of Maharashtra Through Nanded (Rural) Police Station, Nanded. ....Appellant. Versus 1. Narayan Champatrao Girde, Age 26 yrs., Occu. Agriculture, 2. Lakdu s/o. Dadarao Girde, Age 21 yrs., Occu. Agriculture, Both R/o. Asadwan, Tq. & Dist. Nanded. ..... Respondents. Mr. K.G. Patil, APP for appellant. Mr. A.M. Gaikwad, Advocate for respondent No. 1. Mr. N.K. Kakade, Advocate for respondent No. 2. WITH CRIMINAL APPEAL NO. 16 OF 2007 Narayan Champatrao Girde, Age 30 yrs., Occu. Agriculture, R/o. Asadwan, Tq. & Dist. Nanded. ......Appellant. Versus The State of Maharashtra .......Respondent. Mr. A.M. Gaikwad, Advocate for appellant. Mr. K.G. Patil, APP for State. Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 4 WITH CRIMINAL APPEAL NO. 865 OF 2006 Lakdu s/o. Dadarao Girde, Age 25 yrs., Occu. Agriculture Labourer, R/o. Asadwan, Tq. & Dist. Nanded. ........Appellant. Versus The State of Maharashtra Through Nanded Rural Police Station, Nanded. ........Respondent. Mr. N.K. Kakade, Advocate for appellant. Mr. K.G. Patil, APP for State. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on: 29/03/2011 Pronounced on : 13/04/2011. JUDGMENT : [ PER T.V. NALAWADE, J. ] 1. All the four appeals have arisen out the decision of Special Case No. 10/2002 which was pending in the Court of Additional Sessions Judge, Nanded. By judgment and order dated 16.12.2006 original accused No. 32 - Lakdu is convicted and sentenced for offences punishable under section 307 and 452 of the Indian Penal Code and he has filed Criminal Appeal No. 865/2006. Original accused No. 30 - Narayan is convicted and sentenced for offences punishable under sections 325 and 452 of IPC and he has filed Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 5 Criminal Appeal No. 16/2007. Criminal Appeal No. 85/2008 is filed by the State for enhancement of sentence given to Lakdu and Narayan. Criminal Appeal No. 84/2008 is also filed by the State against the decision of acquittal and it is admitted only against accused/respondent Nos. 14 to 16, 18, 31, 32 & 34. As accused No. 30 is behind bars, the hearing of all the four appeals was expedited. 2. In short, the facts leading to the institution of the four appeals, can be stated as follows :- (a) All the accused persons from special case and the prosecution witnesses from complainant's side are resident of village Asadwan, District Nanded. The accused persons belong to Maratha community and they do not belong to any scheduled caste or scheduled tribe. Complainant Udhav Lokhande and witnesses on his side belong to scheduled caste (Mahar). They are of Boudha community. There are around 17 houses of persons of the caste of complainant, 6 houses of other scheduled caste (Matang), 6 houses of Muslim and around 50 houses of Maratha community in this village. The houses of the persons of the caste of complainant are situated on one side of the main road of the village and on the other side, there are houses of persons of Maratha community. Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 6 (b) On 26.5.2002 a lamb of Ashok Hanmante, maternal uncle of complainant Udhav, caused damage to the heap of cattle fodder of Dadarao Girde. Due to this incident, at about 6.30 p.m. quarrel took place between Sunita, wife of Ashok on one side and sons of Dadarao Girde viz. Lakdu, Mohan, Sambha and Dilip on the other. When Baban Jogdand, a person of the community of the complainant, tried to intervene in the quarrel, Mohan gave a stick blow on the head of Baban. Pralhad Lokhande, who also belongs to caste of complainant informed about this incident to police on phone and after that police arrested Mohan and Mohan was taken to the police station. (c) At about 8 to 8.30 p.m., 50 to 60 persons of Maratha community gathered in front of village temple. The complainant Udhav was watching them as he was in front of his house. Then more than 50 persons of Maratha community started towards the houses of the community of the complainant and they were holding weapons like sticks, iron bar and knives. These persons started giving abuses to the persons of the community of the complainant by taking the name of their caste and they started pelting stones at the houses of persons of community of Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 7 complainant. These persons entered many houses of the persons of community of the complainant, started causing damage to the household articles and assaulting the persons of the community of the complainant. When they noticed that complainant was standing in front of house, they started towards him. Accused Lakdu (A-32), Narayan(A-30), Sambha (A-34) and Shivkumar (A-31) entered in the house of complainant with many other persons of Maratha community. They dragged the complaint out of house and they started causing damage to the household articles of complainant Udhav. In the incident, accused Lakdu and Sambha gave blows of knife on both hands and on the chest of the complainant. They attempted to murder the complainant. Kerabai, grandmother of complainant, started shouting and then accused Narayan and Shivkumar assaulted Kerabai by using iron bar. Fracture injuries were caused to Kerabai and bleeding injuries were caused to complainant Udhav. (d) The mob caused damage to the articles from grosary shop of one Shila Lokhande. They caused damage to the household articles of Dayanan Taru, Ashok Hanmante and to the property of some other persons of the community of the complainant. Beating was also given to these persons. Some persons of the community of the Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 8 complainant sustained injuries due to pelting of stones. (e) After the incident, somebody informed to police and police came to the village. Injured persons were shifted to Government Hospital. The report of Udhav Lokhande came to be recorded in the Government Hospital on the same night and the Crime No. 123/2002 came to be registered for the offences punishable under sections 307, 452, 324, 336, 147, 148 and 149 of IPC and the offence was also registered under section 3 (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act in Nanded Rural Police Station. (f) Udhav and Kerabai came to be admitted in Government Hospital for few days. Some more injured persons came to be examined on the same night. Deputy Superintendent of Police (DYSP) Shri. Narendra Pandagale made the investigation of the case. He prepared the panchanama of spot of offence. He made assessment of damage caused to the properties of the persons of the community of the complainant. Police Inspector Babarao Musale arrested some accused persons on the same day. During the course of investigation some accused persons produced weapons before the police and police seized the same under the Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 9 panchanama. The complainant and some persons of his caste produced caste certificates. The statements of the injured persons and others came to be recorded. The injury certificates came to be collected and after completion of investigation DYSP Pandagale filed chargesheet against 41 persons of Maratha community for the aforesaid offences and also for the offences punishable under Protection of Civil Rights Act. (g) The 3rd Judicial Magistrate, First Class at Nanded committed the case to the Court of Sessions. The charge was framed for the aforesaid offences against all the 41 persons and there was specific charge for the offence punishable under section 7(1)(d) of Protection of Civil Rights Act and for the offence punishable under section 3 (i) (x) (xi) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. All the accused persons pleaded not guilty. (h) The prosecution examined in all 18 witnesses before the Trial Court. After recording the evidence of prosecution, the statements of all the accused persons were recorded under section 313 of Criminal Procedure Code. The defence of total denial was taken by the accused persons. The accused persons contended that some Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 10 other persons had attacked the houses of complainant and others and the accused were falsely implicated in this case. The Trial Court has convicted and sentenced the accused No. 32 Lakdu for the offences punishable under section 307 and 452 of IPC and the maximum sentence of imprisonment given to him is of seven years. Accused No. 30 - Narayan is convicted and sentenced for the offences punishable under sections 325 and 452 of IPC and the maximum sentence of imprisonment given to him is of two years. Both the sides are heard. 3. It was submitted for the State that so many houses of the persons of community of complainant were attacked on that night and the evidence is sufficient to infer that more than five persons were involved in the incident. It was submitted that the evidence on record is also sufficient to infer that dangerous weapons were used by the members of unlawful assembly and attempt on the life of complainant was made. It was submitted that in view of the circumstances, the Trial Court ought to have convicted and sentenced all those persons for offence of rioting and for the offence of attempt of murder alongwith the offence of causing damage to the properties of the members of scheduled caste persons. It was also submitted that in view of the nature of the Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 11 offence committed by these persons, severe punishment ought to have been given by the Trial Court. On the other hand, for the accused persons, it was submitted that it was night time, electricity was off and the evidence given by the prosecution witnesses on identification of persons involved in the incident is highly doubtful in nature. It was submitted that due to discrepancies in the evidence and due to the improvements made in versions, there is clear probability that prominent persons of Maratha community are intentionally roped in when they were not involved in the incident. It was submitted that all the accused persons are entitled to benefit of doubt. 4. The defence taken by the accused persons shows that it is not disputed that many houses of the persons of the community of the complainant were attacked on that night and there was stone pelting also. It is also not disputed that many persons of the caste of the complainant were injured on that night. It is also not disputed that damage was caused to the properties of persons of the caste of complainant, though the extent of damage described in spot panchanama is disputed. In view of all these circumstances, it can be inferred that the defence is not disputing that many persons had attacked the houses of the caste of the Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 12 persons of complainant and so inference can be drawn about the formation of the unlawful assembly. If there was the unlawful assembly formed on that night, the prosecution is required to prove that the accused persons were members of that unlawful assembly. The prosecution is required to prove the particular overtacts of each accused done to execute the common object. 5. Pralhad Lokhande (PW 2) has given evidence that he was injured in the incident. He was also used as a panch witness by police. It can be said that police ought to have avoided to use Pralhad Lokhande as a panch witness as he is interested witness. Only due to circumstances that the defence is not disputing that there was such attack and damage was caused to the property on that night, the evidence of Pralhad Lokhande (PW 2) and the evidence of Investigating Officer Pandagale (PW 16) can be used in this case. The tenor of the cross examination made by defence shows that only the extent of damage recorded in the spot panchanama at the instance of Pralhad is disputed by the defence. The evidence of these two witnesses shows that atleast 13 houses were attacked on that night. There was stone pelting and damage was caused to the household articles from atleast 9 houses. It is only suggested to Pralhad during cross examination that he had Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 13 some dispute with some auto rickshaw drivers and the persons of auto union had attacked these houses. The spot panchanama and the evidence of two witnesses show that stones were there and the property which was damaged in each house is also described. Exh. 126 is consistent with the evidence given by these two witnesses. This Court has no hesitation to hold that the prosecution has proved that 13 houses were attacked on that night and the household articles from 9 houses were damaged in that attack. The evidence is also sufficient to prove that the members of unlawful assembly had entered the 9 houses for causing damage to the household articles. 6. The evidence of Udhav (PW 1), his grandmother Kerabai (PW 9) shows that they were attacked in the house of Udhav and injuries were caused to them. Dr. Yogesh (PW 12) and Dr. Nitin (PW 14) have given evidence on the injuries sustained by Udhav and Kerabai. Udhav was examined at about 9.20 p.m. on 26.5.2002 and Kerabai was examined at about 10.55 p.m. on the same night. Four incise wounds were found on the person of Udhav and they were caused within 24 hours of the examination. Two fracture injuries were caused on the both hands of Kerabai. The evidence of Girjabai (PW 10) and Dr. Shivaji (PW 13) show that Girjabai was examined Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 14 on 27.5.2002 and injuries found on the person of Girjabai were caused within three days. Girjabai has given evidence that her grandson Navnath was also injured in the incident. Dr. Shivaji has given evidence on injury found on the person of Navnath and age of injury was similar. 7. Evidence of Jijabai (PW 6) and Dr. Nitin (PW 14) shows that two injuries were found on the person of Jijabai on 26.5.2002 and they were caused within 24 hours. The Evidence of Dayanand Taru (PW 4) and his wife Jyoti (PW 8) shows that they received injuries in the same incident. Evidence of Dr. Nitin (PW 14) shows that he examined Dayanand on 27.5.2002 and the injuries were caused within 24 hours. Similarly, the evidence of Ashok Hanmate (PW 5), his wife Sunita (PW 7) and Dr. Nitin (PW 14) shows that when Ashok and Sunita were examined on 27.5.2002, the injuries caused within 24 hours were found on their persons. Ashok had sustained five injuries. Dr. Nitin (PW 14) had examined one Shankar also, but this person is not examined as witness. 8. Dr. Subash (PW 11) was examined to prove that on 12.6.2002 he examined more than 12 persons of this village and he found that simple injuries were present on their persons which were 15 days Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 15 old. All these injuries were healed. Pralhad (PW 2) and Shila (PW 3) have given evidence that they had sustained injuries in the same incident, but they were examined on 12.6.2002. Here only it needs to be observed that Shila (PW 3) has given evidence that the damage was caused to her grocery shop by the mob and there is such mention in the spot panchanama. Thus, there is circumstantial check to the evidence of Shila, but there is no such check to the evidence adduced by Pralhad (PW 2). 9. Even if the medical evidence in respect of the persons who were examined on 12.6.2002 is ignored, it can be said that many prosecution witnesses were immediately examined in Government Hospital. Kerabai (PW 9) sustained fracture injuries, grievous injuries in the incident and she has made allegations that iron bars were used against her. Udhav (PW 1), the complainant sustained atleast three incise wounds and he has made allegations that knife was used against him. If this evidence is considered as a whole, it can be inferred that many houses were attacked on that night and dangerous weapons like iron bars, sticks and even knives were used by the members of assembly. No injury was found on the person of any accused and the evidence on record is sufficient to infer that no resistance could be offered by the injured persons. Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 16 These circumstances are in support of the case of the prosecution that more than 5 persons had gathered there, they had formed unlawful assembly and that unlawful assembly caused damage to the properties of the persons of scheduled caste. The unlawful assembly caused mostly simple injuries to the persons of scheduled caste and some members of the assembly caused grievous hurt to Kerabai. Attempt is also made by prosecution to show that the injury sustained by Udhav was dangerous to life. This case needs to be discussed in detail as the defence has disputed this case. 10. Udhav (PW 1) gave report about the incident to police and so his evidence needs to be considered first. He has deposed that the population of the persons of higher caste is around 700 to 800 in the village. He has deposed that population of persons of his caste is about 80 to 90. He has given evidence that the first incident took place at about 6.30 p.m. on 26.5.2002 as a lamb of Ashok Hanmante entered in the field of Dadarao Girde and caused damage to the heap of fodder of Dadarao Girde. He has deposed that quarrel took place between wife of Ashok on one side and four sons of Dadarao on other. He has deposed that when Baban Jogdand intervened in the incident, Mohan, son of Dadarao gave stick blow to Baban. He Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 17 has deposed that Pralhad (PW 2) informed to police about the incident and so police came to the village and took away Mohan with them. Udhav (PW 1) had made an attempt to give evidence that the persons of Maratha community were attempting to prevent them from celebrating the functions like Ambedkar Jayanti and due to this conduct also there was tension in the village. There is no such mention in the report given by Udhav to police and this omission is material in nature. There is other evidence on record which is being discussed and it shows that the witnesses of prosecution have tried to exaggerate things. 11. Udhav (PW 1) has deposed that after 7.45 p.m. on the same day more than 50 persons of Maratha community gathered in front of temple of Maruti. He has deposed that the members of this mob /assembly were holding weapons like iron bar, sticks and knives. He has deposed that this mob then started towards the locality where the persons of his caste live and they started giving abuses to the persons of the community of Udhav by taking the name of their caste as 'Mahar'. He has deposed that these persons were asking as to why report was given against the Patils. He has deposed that the mob then started pelting stones on their houses. He has deposed that when the mob started at him, he ran towards his house. If the Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 18 evidence on motive is considered and scrutinized, it can be said that mob had the grievance that petty incident was taken to police and due to the involvement of police, Mohan was arrested by police. If the quarrel or dispute starts after such incident and on two sides there are groups of many persons, only due to circumstance that the two groups belong to different castes or community, inference cannot be drawn that the caste factor was involved in such incidents. The evidence on record shows that there are few houses of persons of other scheduled caste, but they were not attacked on that night. Four houses of caste of complainant were also not attacked. In view of this probability, the evidence needs to be scrutinized closely. 12. Udhav (PW 1) has deposed that Lakdu (32) and Sambha (both accused Nos. 2 and 34 have similar names and surnames) dragged him out of his house. He has deposed that Lakdu assaulted him on his right and left forearm with knife. In Marathi version, there is mention that injury was sustained on the left side of chest also by Udhav. There is a probability that due to over sight this part of evidence is not dictated by the Court to the typist, who typed the English version. Udhav has deposed that when Lakdu and Sambha were assaulting him, Kerabai (PW 9) started shouting. He has Cri. Appeal Nos. 84, 85/08, 16/07, & 865/06 19 deposed that accused Narayan (A-30) and Shivkukar (A-31) assaulted Kerabai with iron rod and she sustained fracture injuries to both her hands. He has deposed that the remaining persons from mob caused damage to the household articles. Udhav has identified accused Nos. 30, 31, 32 and 34 in the Court as assailants. He identified almost all the accused in the Trial Court who faced the trial. He has deposed that all the persons caused damage to his household articles and to the property of persons of his caste. He has deposed that except accused Nos. 30, 31, 32 and 34 other members of the mob were holding weapons like sticks. 13. Udhav (PW 1) has deposed that he was given treatment in Civil Hospital for 4 to 5 days and his grandmother Kerabai was given treatment for about 15 days. The first information report (FIR) which is at Exh. 123 is proved in the evidence of Udhav (PW 1). The caste certificate produced by him at Exh. 121 shows that he belongs to 'Mahar' caste which is a scheduled caste. He has however stated in the evidence that he is not in a position to identify the knife used against him