Bombay High Court
State Of Maharashtra vs Govind Gangaram Kendre And Others on 23 August, 2017
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.400 OF 1998
The State of Maharashtra,
(Through P.S.O. Gangakhed).
...APPELLANT
VERSUS
1) Govind s/o Gangaram Kendre,
Age-35 years, Occu:Agri.,
R/o-Pimpaldari, Tq-Gangakhed,
Dist-Parbhani,
2) Balaji s/o Gangaram Kendre,
Age-32 years, Occu:Agri.,
R/o-As Above,
3) Dnyanoba s/o Gangadhar Kendre,
Age-25 years, Occu:Education,
R/o-As Above.
...RESPONDENTS
(Orig. Accused)
...
Mr. R.V. Dasalkar, A.P.P. for Appellant.
Mr. R.N. Dhorde, Senior Counsel instructed by
Mr. Vasant N. Shelke, Advocate for Respondent
Nos.1 to 3.
Mr. B.R. Kedar Advocate for assist to P.P.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
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DATE OF RESERVING JUDGMENT : 06TH JULY, 2017.
DATE OF PRONOUNCING JUDGMENT: 23RD AUGUST, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is filed by the State
challenging the Judgment and order dated 2nd May,
1998, passed by the Additional Sessions Judge,
Parbhani in Sessions Trial No.112 of 1995, thereby
acquitting the Respondent Nos.1 to 3/original
accused Nos. 1 to 3, for the offences punishable
under Sections 302, 307, 324, 323, 452 and 427
read with Section 34 of the Indian Penal Code (For
short "I.P. Code").
2. The prosecution case, in nut-shell, is as
under :-
A) Informant Padminibai w/o Shatrughan
Nirudunde is resident of village Pimpaldari, Tq-
Gangakhed, Dist-Parbhani. Vithal Maroti Nirdunde
is resident of village Pimpaldari. He had four
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sons (1) Shriram (2) Laxman (3) Bharat (deceased)
and (4) Shatrughan (deceased). Vithal has one
daughter by name Gayabai, who is married with one
Namdeo Hingrupe also resident of Pimpaldari. He
has also another daughter by name Prayagbai. The
name of Laxman's wife is Urmilabai. The name of
Bharat's wife is Vimalbai. The name of
Shatrughan's wife is Padminibai, who is informant
in the present prosecution. It is the prosecution
case that Vithal and his sons were residing
jointly at village Pimpaldari. Bharat Vithal
Nirdunde (deceased) and Shatrughan Vithal Nirdunde
(deceased) were residing in the house constructed
on field Survey No.198 along-with their wives and
children, situate within Shiwar of village
Pimpaldari. Shriram and Laxman were residing in
the house situate at village Pimpaldari. It is the
prosecution case that, Vithal and his sons formed
joint family.
B) Accused Nos.1 to 3 are the sons of
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deceased Gangaram. Accused Nos.1 to 3 are
residents of village Pimpaldari, earning their
livelihood by doing agricultural occupation.
C) The field Survey No.198 situate in the Shiwar
of village Pimpaldari, was admeasuring 25 acres.
Deceased Gangaram Piraji Kendre also owned land in
the field Survey No.198. About 20 to 25 years ago,
due to the mistake of revenue authorities in the
field Survey No.198, 13 acres agricultural land
was mutated in the name of Vithal and his family.
Due to this, dispute arose between the parties and
consequently resulted into filing of civil suit
between the father of the accused persons namely
Gangaram Piraji Kendre and father of Vithal namely
Maroti. Said Civil Suit was decided, and it was
ordered by the Court that, Gangaram Piraji Kendre
should retain 12 and 1/2 acres land out of field
Survey No.198 and Maroti, the branch of
complainant should retain 12 and 1/2 acres land.
Accordingly, during the execution of decree
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through Court bailiff, possession of 12 and 1/2
acres land was given to the family of Vithal and
remaining 12 and 1/2 acres land out of said Gut
number was given in the possession of Gangaram
Piraji by the Court bailiff. But, due to the
mistake of revenue authorities, 13 acres land was
mutated in the name of family of Vithal.
D) In the year 1985, Bombay Prevention of
Fragmentation and Consolidation On Holdings Act
came into force. Before the authorities under this
Act, deceased Gangaram Piraji Kendre made an
application stating before them that, in the name
of Vithal and his family only 12 and 1/2 acres
land should be recorded instead of 13 acres. He
also made an application that, in the 7/12 extract
in his name 13 acres agricultural land should be
recorded. The say of Gangaram Kendre was accepted
by the said authorities and the matter was decided
in his favour. Thereafter, Vithal filed suit
before the Civil Court at Gangakhed against said
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decision, in which injunction was granted in
favour of Vithal against Gangaram s/o Piraji
Kendre, and Gangaram Piraji Kendre was restrained
and prevented from entering into the field of
Vithal. In the year 1985, due to obstruction by
Gangaram Kendre and his sons, complaint was filed
by Vithal Nirdunde, on the basis of which
prosecution was filed against Gangaram Kendre and
his sons. Even thereafter, Gangaram Kendre was
often troubling and harassing Vithal and his sons.
The field of Gangaram Piraji Kendre is situate to
the southern side of the field of Vithal and they
are adjacent to each other. There is common
boundary between these two fields.
E) On 2nd January, 1995, an informant
Padminibai, Vimalbai, deceased Shatrughan,
deceased Bharat and their sister Prayagbai and
Laxman's wife Urmilabai were present in the field
Survey No.198. At about 12.00 noon, informant
Padminibai, Vimalbai, Urmilabai and their
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husband's sister Prayagbai were plucking the
cotton in the field. Shatrughan was watering grams
crop in the same field Survey No.198. Bharat had
pains in his tooth and hence he was taking rest at
the Akhada(cattle-shed) erected on the field. It
is the prosecution case that, when female members
stated above were plucking the cotton, deceased
Shatrughan was watering grams crop and deceased
Bharat was taking rest, from the western side of
their field, accused No.1 Govind Gangaram Kendre,
accused No.2 Balaji Gangaram Kendre and accused
No.3 Dyanoba Gangaram Kendre came and entered in
the field of informant. Accused Govind had an axe
in his hand. Accused Balaji had iron Katti and
accused Dyanoba had stick in his hand. They went
near Shatrughan and questioned him as to why he
had left free his cattle in the wheat crop of
accused persons. After saying this, accused Govind
inflicted blow with an axe on the head of deceased
Shatrughan. Accused Balaji inflicted blow with
Katti on the left hand of deceased Shatrughan.
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Accused Dnyanoba gave blows with stick with him on
both the legs and right leg thigh. After receipt
of such beating, deceased Shatrughan fell on the
ground in the field itself. On seeing this,
Padminibai and other female members made hue and
cry and on hearing their hue and cry, deceased
Bharat went towards deceased Shatrughan. When
Bharat reached near accused persons, accused
Govind inflicted blow with an axe in his hand.
Accused Balaji inflicted blow with iron Katti on
the left hand of deceased Bharat and accused
Dnyanoba inflicted blow with stick on the right
leg of deceased Bharat. When Padminibai and Vimal
went to rescue deceased Bharat, accused Dnyanoba
beat Padminibai with stick on her head and caused
injuries. He also beat Padminibai on both her
legs. Accused Balaji inflicted blow with Katti on
the right leg of Vimal. Accused Dnyanoba also beat
Vimalbai with stick.
F) After beating so, accused Nos.1 to 3 went
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towards the village - Basti. Urmila and Prayagbai
also went towards the village by following accused
persons.
G) Accused Nos.1 to 3 went to the
residential house of Shriram and Laxman in the
village. Laxman was present at his house along-
with his parents, brother Shriram, Shriram's wife
Savitribai and daughter Meera. It was about 1.00
to 1.30 p.m. Accused went to Laxman who was
present at his house, and extended him threat by
saying that, 'Kumbharde Majle Ahet'. They abused
Laxman and others. At that time, accused Govind
had an axe. He wore chocolate coloured half pant
and white coloured banyan. Accused Balaji had
iron Katti with him and he wore snuff coloured
Chaddi and white banyan. Accused Dnyanoba had
stick with him and he wore blue coloured Chaddi
and dark blue coloured banyan. Accused Nos.1 to 3
as aforesaid, entered in the residential house of
Laxman and threw away grocery articles and other
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material in the shop of Laxman. At that time,
Laxman was sitting in the 'Dhalaj' (court-yard) of
his residential house. Accused Balaji inflicted
blow with Katti on the head of Laxman. After so
beating, accused Nos.1 to 3 were dragging Laxman
outside the house. Shriram's wife Savitribai
rescued Laxman and pulled him inside the house and
then closed the door of their house from inside.
H) Thereafter, it is the prosecution case
that, accused Nos.1 to 3 climbed on the roof of
the house of Ganpati Kendre and then pelted stones
towards the house of Shriram and Laxman. When
they were so pelting stones, Laxman's wife Urmila
returned to her residential house from the field
and she witnessed such pelting of stones.
Deceased Gangaram Kendre was standing on the road
with stick in his hand and he did not allow Urmila
to go towards her house. Thereafter, Urmila went
by some other way towards the house of one Dadarao
and reported him the incident and requested him to
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accompany her towards her house. Accordingly
Dadarao accompanied with Urmila. Dadarao gave
understanding to accused Nos.1 to 3, but they did
not pay any heed towards the request of Dadarao.
Accused persons asked Dadarao not to intervene in
their matter. Thereafter, accused Nos.1 to 3 went
away. Urmila went in her residential house. She
came to know that, accused Balaji injured her
husband by giving blow with Katti on the head of
her husband. At that time, Urmila reported the
incident took place in the field, to the
inhabitants of the house.
I) It is the prosecution case that, Police
Jamadar Laxman Phad and Police Constable Dahiphale
attached to Gangakhed Police Station were posted
on duty at Check-post at Pimpaldari from 17th
December, 1994. Accordingly, on the day of
incident, they were on duty at the said check-
post. On 2nd January, 1995, both aforesaid Police
officials were not feeling comfortable in the
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village and hence they went in the field of Police
Patil of village Pimpaldari. When they were so
present in the field of Police Patil, at about
1.45 p.m. Laxman's daughter Meera went to them and
requested them to come to the village. When
questioned, Meerabai narrated that, her parental
cousin uncles, Bharat and Shatrughan were killed
by axe, Katti and stick by accused Nos.1 to 3 and
that their corpse were lying in the field. She
further reported that, accused Nos.1 to 3 after
killing Bharat and Shatrughan, came to the village
and were pelting stones and that they were beating
the inhabitants in their house. On hearing this,
Head Constable Phad and Police constable Dahiphale
immediately went along-with Meera to the house of
the informant. At that time, user door of the
house was chained from inside. Head Constable Phad
requested inhabitants in the house to open the
door and accordingly the door was opened. Laxman
Nirdunde had bleeding injury to his head and
material in the grocery shop was scattered here
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and there. When questioned to Laxman by
Constables, he narrated the incident and informed
the Constables that, he was injured at the hands
of accused persons and the material in the grocery
shop was thrown here and there by accused persons.
J) Thereafter, Laxman was sent along with
Police Constable Dahiphale and Laxman's wife
Urmila, for medical treatment to Gangakhed by S.T.
Bus. Head Constable Phad and Bali Kotwal of the
village went to the field. There were corpse of
Bharat and Shatrughan lying on the field. They
had injuries on their person. Padminibai had also
injury to her head. Padminibai was sent for
filing complaint to Gangakhed and Head Constable
Phad waited there on the field.
K) Accordingly, injured Laxman and Police
Constable Dahiphale went to Police Station
Gangakhed along with Laxman's wife Urmila. Police
Station Officer, Gangakhed along-with a letter,
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sent Laxman for medical examination. Dr. Ghule
attached to Rural Hospital Gangakhed, examined
Laxman Nirdunde on 2nd January, 1995 at about 5.15
p.m. and issued injury certificate.
L) Police Inspector (for short "P.I.")
Choudhary attached to Police Station, Gangakhed
was present in the police station on 2nd January,
1995. At about 7.00 p.m. informant Padminibai
Nirdunde had gone to Gangakhed Police Station and
orally narrated the incident and the same incident
was reduced into writing as per Exhibit-18. On the
basis of the complaint of Padminibai, Crime No.2
of 1995 was registered under Sections 302, 307,
324 of the I.P. Code. Reports were submitted by
him to his superiors.
M) Thereafter, P.I. Choudhary proceeded to
the spot where he noticed two corpse; one of
deceased Bharat and another of deceased
Shatrughan. On the next day morning, inquest
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panchnamas of deceased Bharat and Shatrughan were
prepared by him. Thereafter P.I. Choudhary drew
scene of offence panchnama of the situation on the
field. Some articles were seized. Chappal of
accused was seized from the scene of offence. From
the spot of field, normal earth and earth mixed
with blood were taken as sample. The scene of
offence panchnama of the residential house was
also prepared by P.I. Choudhary. Thereafter dead
bodies were sent for post-mortem and the post-
mortem was carried out on the dead bodies of
Bharat and Shatrughan. The investigating officer
carried out the investigation. During the course
of investigation, statements of witnesses were
recorded by P.I. Choudhary. The clothes on the
person of deceased Bharat and Shatrughan were
seized by drawing seizure panchnamas. Then, after
due investigation, accused Nos.1 to 3 were charge-
sheeted.
N) Thereafter the case was committed to the
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Court of Additional Sessions Judge, Parbhani. A
charge under Sections 302, 307, 324, 323, 452 and
427 read with Section 34 of the I.P. Code was
framed against all the accused persons and the
same was explained to them. The accused persons
pleaded not guilty and claimed to be tried, with
the defence of total denial.
3. After recording the evidence and
conducting full fledged trial, the trial Court
acquitted all the accused persons from the
offences with which they were charged, as stated
herein above in Para-1 of the Judgment. Hence this
Appeal.
4. Heard learned A.P.P. appearing for the
State and learned senior counsel appearing for
Respondents-accused, at length. Learned A.P.P.
appearing for the State invites our attention to
the evidence of three eye witnesses i.e. PW-1
Padminbai, PW-11 Vimal and PW-12 Urmila and
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submits that these witnesses have categorically
stated that accused assaulted deceased Shatrughan
and deceased Bharat by axe, Katti and stick, and
they have witnessed the incident. PW-13 Laxman
Nirdunde is injured witness. He submits that
overt act is attributed against all the accused
persons. He further submits that the trial Court
has not appreciated the evidence on record in its
proper perspective, and the findings recorded by
the trial Court are not in consonance with the
evidence brought on record by the prosecution. He
submits that, there is overwhelming evidence
brought on record by the prosecution in the nature
of eye witnesses, corroborated with medical and
other evidence. Therefore, he submits that the
Appeal may be allowed.
5. Mr. R.N. Dhorde, learned senior counsel
appearing for the original accused/ Respondents
invites our attention to the findings recorded by
the trial Court and submits that, on analysis of
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the evidence of all the prosecution witnesses and
in particular evidence of alleged eye witnesses
i.e. PW-1 Padminbai, PW-11 Vimal and PW-12 Urmila,
the trial Court found that it suffers from serious
contradictions, omissions, improvements and
therefore benefit of doubt is given to the
accused. It is submitted that PW-1 Padminbai has
stated different versions in her First Information
Report (for short "F.I.R."), statement recorded by
the Investigating Officer and in her deposition
before the Court. Learned counsel submits that it
is the case of the prosecution that the incident
has happened at about 11.00 to 11.30 am. on 2nd
January, 2015, in which two persons were seriously
injured and died on the spot and thereafter the
accused persons have gone to the village
Pimpaldari and they had pelted stones and caused
injuries to PW-13 Laxman Nirdunde. He submits that
PW-12 Urmila, claims to be the eye witness to both
the incidents i.e. first incident in the field and
second incident in the house. PW-12 Urmila stated
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that she had gone to the police station at 5.00
p.m. and reported the matter to the police station
and then PW-13 Laxman was referred to the hospital
for medical treatment. However neither the station
diary entry made in that behalf by head constable
Deshpande, present in the police station at the
relevant time, is produced on record nor said
Deshpande is examined. Therefore, whatever report
had been given to police by PW-12 Urmila and PW-13
Laxman, is suppressed in order to substitute
another version suitable to the prosecution and/or
informant. He further submits that there is no
explanation as to why PW-9 Laxman Phad, police
head constable, Gangakhed police station, who
according to him, has gone in the village and met
PW-13 Laxman Nirdunde at around 2.00 O'clock, has
not reduced into writing the F.I.R. of Laxman.
Therefore, the case of the prosecution appears to
be suspicions and doubtful. Informant, PW-1
Padminibai specifically stated that in her F.I.R.
the details of dispute on the cause of
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agricultural land between them and accused have
been stated by Vithalrao, her father in law. It is
surprising as to how the part of the F.I.R. can be
given by somebody, who is not informant. PW-1
Padminibai stated that PW-9 Laxman Phad had sent
her and Vimalbai for medical examination however,
PW-9 Laxman Phad does not support the said
version. Thus the F.I.R. Exhibit-18 is fabricated
and concocted piece of evidence. The genesis of
the incident is suppressed by PW-9 Laxman Phad and
PW-19 Shivaji Choudhary. It is submitted that
considering the version of the Investigating
Officer PW-19 Shivaji, it is clear that the
complaint which is shown to have been lodged at
7.00 p.m., is concocted complaint.
6. Learned senior counsel referring to the
written notes of arguments, further submitted that
the evidence of three eye witnesses i.e. PW-1
Padminibai, PW-11 Vimal and PW-12 Urmila, claiming
to be eye witnesses, is not true and they are not
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the eye witnesses. There are various
contradictions and omissions in the evidence of
PW-1 Padminibai. Padminibai was present in the
field when the incident had taken place, is not
corroborated by any independent witness. The names
of various persons stated like Vithal, Namdeo,
Dnyanoba, Uttam, Sheshrao Guruji, Janardhan,
Sitaram, whose houses are located nearby, however
not a single person is examined about the incident
in the house of pelting stones or accused persons
being present in the surrounding area. Medical
evidence disproves the version of PW-1 Padminibai
that deceased Bharat had break-fast at 9.00 a.m.
PW-1 Padminibai has not disclosed the said
incident to anybody from 11.30 to 7.00 p.m. till
lodging of the F.I.R. Thus, it is clear that she
was not present at the scene of offence and she
has not witnessed the incident. It is further
submitted that there are serious omissions and
contradictions in the evidence of PW-11 Vimalbai
and therefore Vimalbai cannot be said to be an eye
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witness to the incident. PW-12 Urmilabai claims to
be an eye witness and present at both the spots
i.e. in the field and in house, however she has
not sustained any injury. There are
contradictions, omissions and various improvements
in her evidence, because she claims to have left
the field immediately after the accused have left
the field. Thus, when two persons were injured and
lying in the field, she left the field for no
reasons and therefore, her conduct is not natural.
7. Learned counsel further submitted that
PW-13 Laxman Nirdunde in his evidence stated that
Balaji has caused him injury by Katti, however
C.A. Report reveals that on Article-16 no blood
stains were found. On the contrary, Doctor has
specifically stated that the injury is caused by
axe. Therefore evidence of PW-13 Laxman Nirdunde
cannot be believed. It is further submitted that
evidence of PW-14 Dadarao cannot be accepted as he
is declared hostile. The evidence of PW-9 Phad is
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concocted evidence. PW-10 Dahiphale claims to have
accompanied with PW-13 Laxman and PW-12 Urmila,
but Laxman does not say so nor there is any other
independent evidence and therefore, the evidence
of PW-10 Dahiphale cannot be believed. It is
submitted that in the evidence of Investigating
Officer PW-19 Chaudhary, there are serious
omissions and contradictions and he has carried
out the investigation in most callous manner.
PW-19 Chaudhary has not recorded the statements of
independent witnesses of surrounding area or who
were present there. There is no explanation as to
why PW-19 Chaudhary has not recorded F.I.R.
immediately when he visited the field. His
evidence is contrary to the evidence of other
witnesses and he has categorically stated that,
earth smeared with blood was taken from the spot,
however, no blood was found in C.A. Report.
8. Learned senior counsel further submitted
that only interested witnesses have been examined.
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No independent witnesses have been examined. The
evidence of police witnesses is contrary to the
evidence of alleged eye witnesses and therefore
cannot be believed. The spot of incident is not
proved. Recovery of weapons and clothes is not
proved. No blood stained clothes of PW-1
Padminibai and PW-11 Vimalbai have been recovered.
The investigation does not disclose clearly that
the Respondents are guilty of said offence alleged
to have taken place in the field. Similarly,
regarding the second incident at house in village,
no independent witnesses have been examined. There
were no injuries caused to any other person other
than Laxman. There is hardly any evidence to show
that, the incident had taken place in the field
and/or in the house. There is delay in lodging the
F.I.R.
9. Learned senior counsel in the end
submitted that the Appeal is against the acquittal
and as possible view has been taken by the trial
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Court, the Appeal deserves to be dismissed.
10. Mr. Dhorde, learned senior counsel
appearing for the Respondents, in support of his
submissions regarding delay in lodging First
Information Report, pressed into service the
exposition of law in the case of Kunju Muhammed
Alias Khumani and another vs. State of Kerala1,
Rajeevan and another vs. State of Kerala2. In
support of his submissions that if only interested
witnesses are examined by the prosecution,
corroboration from collateral or surrounding
circumstances needed, such as scientific evidence
like medical and other evidence in order to
exclude possibility of false implication, he
placed reliance on the exposition of law in the
case of Jalpat Rai and others vs. State of
Haryana3, Babu Ram and others vs. State of Punjab 4,
Harijana Thirupala and others vs. Public
1 (2204) 9 S.C.C. 193
2 A.I.R. 2003 S.C. 1813
3 (2011) 14 S.C.C. 208
4 A.I.R. 2008 S.C. 1260
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Prosecutor, High Court of A.P., Hyderabad.
11. The learned senior counsel submitted that
the material witnesses mentioned in the F.I.R.,
like Prayagbai and Gayabai are not examined by the
prosecution and therefore adverse inference has to
be drawn. In support of said submission, he placed
reliance upon the case of Thulia Kali vs. The
State of T.N.5. In support of his submission that
blood stained clothes of the witnesses are not
seized, he relied upon the observations in the
case of State of Rajasthan vs. Taran Singh and
another6. He further placed reliance upon the case
of Niranjan Panja vs. State of West Bengal 7 in
support of his submissions that prosecution failed
to bring on record exact time of death of Bharat
and Shatrughan. In support of his submission that
prosecution failed to prove the spot of incident,
he placed reliance on the exposition of law in the
5 A.I.E. 1973 S.C. 501
6 2004 Cri. L.J. 654
7 (2010) 6 S.C.C. 525
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case of Buta Singh vs. The State of Punjab 8, State
of U.P. vs. Madan Mohan and others9. He relied upon
the case of State of Maharashtra vs. Prabhu Barku
Gade10, and submitted that clothes and Muddemal
seized were not sealed and therefore evidence of
recovery has to be excluded.
12. The learned senior counsel submitted that
though F.I.R. is a previous statement which can,
strictly speaking, be only used to corroborate or
contradict the maker of it, but omissions of
important facts, affecting the probabilities of
the case, are relevant under Section 11 of the
Evidence Act in judging the veracity of the
prosecution case. He placed reliance on the
exposition of law in the case of Ram Kumar Pande
vs. The State of M.P.11. In support of his
submission that if the entire prosecution case is
suspicious then the accused are entitled to
8 A.I.R. 1991 S.C. 1316(1)
9 A.I.R. 1989 S.C. 1519
10 1995 Cri. L.J. 1432
11 A.I.R. 1975 S.C. 1026(1)
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benefit of doubt, he placed reliance upon the case
of Sunil Kundu and another vs. State of Jharkhand 12
and Sevi and another vs. State of T.N. and
another13. He further submitted that, merely
because accused failed to prove its defence, the
same cannot be the basis for conviction. He placed
reliance on the exposition of law in the case of
Vikramjit Singh alias Vicky vs. State of Punjab14,
in support of his said submission.
13. Learned senior counsel appearing for the
Respondents submitted that, prosecution must prove
the case beyond reasonable doubt, and if two views
are possible benefit of doubt must go to the
accused. He placed reliance upon the case of State
of Maharashtra vs. Syed Umar Sayed Abbas and
others15, and in the case of Sujit Biswas vs. State
of Assam16. In support of his submission that,
while dealing with appeal against order of
12 (2013) 4 S.C.C. 422
13 A.I.R. 1981 S.C. 1230
14 2007 Cri. L.J. 1000
15 (2016) 4 S.C.C. 735
16 2013 Cri. L.J. 3140
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acquittal, an appellate Court must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused, firstly, the
presumption of innocence available to him under
the fundamental principle of criminal
jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a
competent Court of law, and secondly, the accused
having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed
and strengthened by trial Court, the counsel
placed reliance on the exposition of law in the
case of Murugesan and others vs. State through
Inspector of Police17 and in the case of Chandrappa
and others vs. State of Karnataka18.
14. We have recorded herein above the
detailed submissions of counsel appearing for the
parties. Now, we would like to discuss the
evidence of the prosecution witnesses in detail.
17 A.I.R. 2013 S.C. 274
18 2007 A.I.R. S.C.W. 1850
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15. The prosecution has examined PW-15 Dr.
Ramgopal Mandanal Biyani. He deposed that from the
year 1990, he was working as Medical Officer,
Rural Hospital, Gangakhed. On 3rd January, 1995,
he has received a letter from Investigating
Officer, police station, Gangakhed, requesting him
to go at Pimpaldari for conducting the post-
mortem, two in number, by going at Pimpaldari on
the spot itself. He produced the original letter
Exhibit-48, received from Investigating Officer,
P.S.I. Choudhary. In the left hand side column of
the letter, he has put an endorsement about
receipt of the same and put the date and time of
the receipt of the letter. On 3rd January, 1995,
he along-with his staff reached at Pimpaldari on
the spot at about 10.30 a.m. and accordingly he
has performed post-mortem examination there.
. PW-15 Dr. Ramgopal Biyani further
deposed that firstly, he performed the post-mortem
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of the corpse of Shatrughan s/o Vithal Nirdunde.
The post-mortem was started at about 10.30 a.m.
and completed at about 11.25 p.m. He found
multiple injuries over body. Such injuries are
described on the separate sheet of paper annexed
to as part of the post-mortem report. The external
injuries were as follows:
"1. Incised wound with fracture of right
parietal bone - 7½ x 1 x 3½ cm. - vertical
over right parietal bone ½ cm. from mid-
line. Wound was clean-cut. Parietal bone
was fractured, deeper layers and coverings
of brain were torn. Brain - tissue was
lacerated and haemorrhage occurred. Blood
was accumulated in middle and anterior
cavity.
2. Incised wound with fracture of right
parietal bone 5 X 1 1½ cm. over right
parietal bone, lateral side, 1 cm. above
ear border, vertical. Bone was fractured
and brain tissue was lacerated. Bleeding
occurred.
3. Incised wound 5 X 1½ X 1 cm. over left
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palm, thumb side, vertical extending from
metacarpophalangeal joint of index finger,
clotted red blood present over wound. Palm
was stained with blood and mud.
4. Incised wound 2½ X 1 X ½ cm. over web
in between thumb and index finger, right
side, vertical, clotted red blood present
with mud over wound. Palm was stained with
blood.
. All above four injuries were
spindle shaped clean cut, edges were
everted and gaping
5. Contusion with fracture - 5 X 2 cm.
over lower 1/3rd of right forearm front
side. Both bones fractured, forearm was
loose - horizontal - red in colour.
6. Contusion with fracture - 2 X 1 cm.
over right clavical, lateral 1/3rd - red
in colour - Clavicle was fractured at
injured part and felt by palpation.
7. Compound fracture with lacerated wound
- 7 X 1 X 1½ cm. over right leg - lower
1/3rd lateral side, oblique - clotted red
blood with mud present over wound, -
Fractured bone ends seen through the wound
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- Leg part was loose.
8. Compound fracture with lacerated wound
- 3 X 1 X 1½ cm. over left leg 1 cm. above
ankle. Inner side - oblique - wound was
covered with red blood and black mud -
Fractured end of tibia bone is seen
through the wound.
9. Contusion 1 1 X ½ cm. over right cheek.
10. Abrasion - 7 X 1/4 cm. over back of
right shoulder.
11. Contusion with abrasion - 7 X 3 cm.
over right upper arm - upper 1/3rd
backside - oblique.
12. Abrasion - 5 X 2 cm. with contusion -
over middle 1/3rd of right forearm back
side.
13. Contusion - 3 X 2 cm. over left elbow
- lateral side.
14. Contusion - 3½ X 1 cm. over left
scapula at lower end.
15. Contusion - 2 X 1 cm. over left pubic
crest bone.
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16. Contusion - 2 X ½ cm. over left leg at
calf part.
17. Contusion - 3 X ½ cm. over right knee
upper and inner side.
18. Contusion - 7 X 3 cm. over back of
left knee.
19. Abrasion - 9 X ½ cm over right scapula
- horizontal at mid-part".
. All contusion and abrasion injuries are
red in colour. Subcutaneous tissue shows diffused
blood.
. PW-15 Dr. Ramgopal Biyani further
deposed that, on internal examination, he found
following internal injuries:
"Right side of the chest shows rib
fracture at 7th, 8th and 9th at convex
angle. Both fractured ends of the ribs
lacerated lower lobe of lung lateral and
back side at three places.
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Size of laceration - ½ cm. to 2 cm. X 1 to
1 ½ cm. deep. Blood accumulated in plureal
cavity about 250 cc. Clotted blood was red
in colour over lacerated wounds and at
fractured ends of the ribs".
. PW-15 Dr. Ramgopal Biyani further deposed
that, in his opinion, injury No.1 to 4 were caused
by sharp cutting edged substance and rest of the
injuries by hard and blunt object. Injury Nos.1, 2
and internal injuries were dangerous to life and
injury Nos.3 to 8 were grievous in nature and rest
of the injuries were simple in nature, and age for
all injuries was within 24 hours. He has prepared
post-mortem examination report, for post-mortem of
Shatrughan, which is scribed and signed by him. It
is at Exhibit-49. In his opinion, the death of
Shatrughan was caused due to multiple injuries
over body with fracture of right parietal bone
with laceration of brain tissue and intra-cranial
haemorrhage with fracture of ribs right side and
laceration of right lung, haemorrhage, shock and
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death. He is shown axe (Article-19), Katti
(Article-20) and stick (Article-21). He deposed
that injury Nos.1 and 2 externally noticed by him
on the person of Shatrughan could be caused with
an axe (Article-19). Injury Nos.3 and 4 could be
caused by Katti (Article-20) if it's straight
sharp part coming in contact with force. Injury
No.4 could be caused by entire blade of Katti.
Injury Nos.5 to 18 could be caused with stick
(Article-21). So also injury No.19 could be caused
with stick. Internal injuries mentioned at Sr.
No.20 in post-mortem notes could not be caused by
stick (Article-21). Injuries mentioned at Sr.
No.20 in post-mortem notes could not be caused
even if forceful blow with stick by holding the
stick in both hands is given. If person falls on
the ground and coming in contact with hard
surface, the internal injury mentioned in Column
No.20 could be caused.
. PW-15 Ramgopal Biyani further deposed
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that on the same day, he started post-mortem of
Bharat s/o Vithal Nirdunde at about 11.30 a.m. and
the same was completed by 12.30 p.m. At the time
of post-mortem, he noticed following surface
injuries and wounds found on the person of
deceased Bharat:
"1. Incised wound 12½ X 1 X 2 ½ cm. over
left parietal bone - vertical - 2 cm. above
ear border - anterior half portion of the
injury was deep and bone was fractured.
Coverings of brain torn and brain tissue
was lacerated. Haemorrhage occurred and
clotted red blood present over brain tissue
and at injury - Godhadi was stained with
blood at head part of the deceased.
2. Incised wound - 7½ X 1 X ½ cm. over left
parietal bone - Vertical extending from
occipito parietal joint and 2 cm. from mid-
line. Clotted red blood present over wound.
Scalp hairs were stained with blood and
mud.
3. Incised wound 1½ X ½ X 1 cm. over left
forearm near wrist - oblique - lateral
side.
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4. Incised wound - with compound fracture
of left forearm bone - 2 X ½ X 1 cm. over
left forearm, back side - lower 1/3rd -
oblique - clotted red blood with mud
present over wound. Surrounded part was
stained with blood and mud. Hand was loose
and fractured ends of the bones were seen
through the wound.
5. Incised wound - 2½ X ½ X 1½ cm. over
back right side at thoracic 8th vertebra
half cm. from mid-line - oblique - Clotted
red blood present over wound. Wound was
opened - inside in the plural cavity,
pleura was torn and blood was collected in
right pleural cavity about 50 cc.
6. Incised wound 1 X ½ X 1 cm. over right
upper arm, back and lateral side - oblique
- upper 1/3rd - Clotted red - blood present
over wound with mud.
7. Incised wound - 5 X ½ X 1/4h cm. over
right parietal bone - 3 cm. above ear
border - vertical - clotted red blood
present.
8. Incised wound - 2 X ½ X 1/4 cm. over
occipito parietal joint - oblique - right
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side 1 cm. from mid-line. Clotted red blood
was present over wound. Scalp hairs were
stained with blood.
9. Incised wound 2 X ½ X ½ cm. over left
upper arm, upper 1/3rd lateral side -
oblique - Clotted red blood present over
wound with mud.
. All above incised wounds were
spindle shaped - Margins were clean-cut
even gaping and edges were everted.
10. Contusion with abrasion - 7 X 4 cm.
over right calf - red in colour.
11. Contusion - 10 X 5 cm. over right foot
and ankle lateral side. Part was red and
swollen and covered with mud.
12. Contusion - 3 X 2 cm. over left
metacapo phaseal joint and dorsam at index
finger - red in colour - part was swollen
and on internal examination, fracture of
proximal phyrynx was found.
13. Contusion 2 X 1 cm. over right knee
upper & lateral side - red in colour -
covered with black mud.
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. All contusion and abrasion injuries
shows defused blood in subcuttaneous
tissue".
. PW-15 Ramgopal Biyani further deposed
that Injury Nos.1 to 9 on the person of Bharat
could be caused by sharp cutting edged substance
and injury Nos.10 to 13 could be caused by hard
and blunt object. Injury Nos.1, 2, 4, 5, 7, 8 and
12 were grievous injuries and rest were simple
injuries. Injury Nos.1 and 5 were dangerous to
life even. In his opinion, the age of all injuries
was within 24 hours. In his opinion, cause of
death was multiple injuries over body and skull
bones with fracture of left parietal bone with
laceration of brain tissue and intracrenial
haemorrhage leading to shock and death. He has
scribed and signed post-mortem report of Bharat,
Exhibit-50. He deposed that injury Nos.1 and 2 on
the person of Bharat could be caused by axe shown
to him. Injury Nos.1, 2, 5, 7 and 8 could be
caused by axe (Article-19). Injury Nos.3, 4, 6
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and 9 could be caused by Katti (Article-20). For
causing injury No.4, such weapon should be used
forcefully. Injury Nos.10 to 13 could be caused
with stick (Article-21).
. During the course of his cross-
examination, PW-15 Ramgopal Biyani stated that
necessarily the injury inflicted is not
corresponding to the length of the blade of
weapon. It could be more than or some times less
than that. He was unable to say how much more
would cause or how much less would cause than the
length of the blade. Injury of the large size than
the length of the blade of the weapon could be
caused maximum by 2 to 3 cm., and less length of
the blade depends on how much part of the blade
comes into contact. Even if the blade is not sharp
one and if force is applied then edges of injury
would come clean-cut. If the blade is not clean
cut and sharp then edges would not be even and
clean-cut. He was unable to say how much heeling
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process would be done within 24 hours after
causing of the injuries in respect of edges. In
respect of the injuries noticed by him, he has
firstly mentioned length, then width and then
depth. When injury No.1 was caused to Shatrughan,
he must be in lying down position on one side. So
also injury No.2 must have been caused when he was
in the same position. Width of the weapon has
nothing to do with the size of the injury. It is
his say that, the width of the weapon might be ½
cm., 1 cm. 1 ½ cm. but the same size of the
injuries in width would be inflicted. He again
said that width of the weapon would change the
width of the injury. He is shown axe before the
Court. After seeing the weapon he stated that the
width of the blade is more towards upward portion
of the blade than lower end. When the depth of the
injury is 3½ cm. then the width of the injury
would correspond to the width of the blade of axe.
Even though he is of the opinion that, width of
the injury must correspond to the width of the
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blade, still he says that injury Nos.1 and 2 could
be caused by axe before the court. For causing
injury Nos.1 and 2, two separate blows are
required. He denied that injury Nos.1 and 2 could
not be caused by the same weapon.
. During the course of his cross-
examination, PW-15 Ramgopal Biyani further stated
that, in respect of Bharat, the depth of injury
No.1 was 2½ cm. and depth of injury No.2 was ½ cm.
In respect of both the injuries, their width is
similar i.e. 1 cm. He does not agree with the
proposition that the width of the injury is to
correspond with the width of the weapon. The width
of the axe before the Court at the height of 2½
cm., which is more than 1 cm. The width of axe at
the height of ½ cm. is less than 1 cm. He was
shown the blade of axe (Article-19).
Approximately, it's length is 2½" to 3". It is not
his say that the length of the blade for causing
injury Nos.1 and 2 on the person of Bharat should
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be more than 4 inches. For causing injury No.1 of
the length of 12½ cm. for causing such injury,
more than one blow is necessary. He has not
mentioned in his post-mortem report concerning
Bharat that more than one blow is required for
resulting injury of the length of 12½ cm. In
respect of injury No.1 of Bharat, he has not
mentioned as to how much anterior half portion of
injury No.1 was deep. In respect of injury Nos.1
and 2 of Bharat and Shatrughan, their length
differs. Length of the injury depends on how much
part of the weapon comes in contact. He admits
that in respect of Bharat, the length of injury
Nos.1 and 2 is considerably more than the length
of blade of an axe (Article-19). He does not agree
with the proposition that injury Nos.1 and 2 on
the person of Bharat and Shatrughan could be
caused by other hard and sharp weapon. On the
basis of report from the police in Column No.5 of
post-mortem reports (Exhibit-49 and Exhibit-50) he
has mentioned that, death occurred due to beating
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by axe, knife and Lathi. The said report of police
of which he has mentioned in Column No.5 was
received to him on 3rd January, 1995. The said
report is signed by the Investigating Officer Shri
Choudhary. In the post-mortem notes of Shatrughan,
the breadth and the depth mentioned is uniform
through-out the length. He admits that injury
Nos.3, 4, 6 and 9 on the person of Bharat were on
non-vital parts of the body. So also, injury
Nos.10, 11, 12 and 13 on the person of Bharat are
on non-vital parts. He admits that injury Nos.5
to 19 on the person of Shatrughan were on non-
vital pats of the body of Shatrughan. Shatrughan
might have taken his last meals about 6 hours
before his death, so also Bharat. There was no
food in the stomach cavity. Injuries on the person
of Bharat possibly were caused while lying down on
one side on parietal region.
16. We have discussed in detail the evidence
of the medical officer PW-15. In his evidence, he
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has clearly stated that the death of Shatrughan
and Bharat was homicidal. He also expressed the
opinion that the age of all injuries was within 24
hours. On 3rd January, 1995, he started post-
mortem of the corpse of Shatrughan at about 10.30
a.m. and completed at about 11.25 p.m. On the same
day he started post-mortem of the corpse of Bharat
at about 11.30 a.m. and completed at about 12.30
p.m. The evidence of the medical officer is
consistent with prosecution case with the alleged
incident that had taken place on 2nd January, 1995
at about 12.00 noon. Therefore, his evidence
clearly shows that the multiple injuries over the
bodies of deceased Shatrughan and Bharat were
caused within 24 hours preceding the post-mortem.
Upon careful perusal of the cross-examination of
Dr. Ramgopal Biyani (PW-15), it is abundantly
clear that nothing useful to the defence has been
elicited and brought on record by the defence. The
trial Court on appreciation of the evidence of the
medical officer, observed that, on perusal of
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medical evidence on record and cross-examination
of PW-15 Dr. Ramgopal Biyani it is seen that, it
is not seriously disputed by the accused persons
that death of deceased Bharat and Shatrughan was
homicidal one. It is further observed that there
is sufficient evidence on record to show that
death of Bharat and Shatrughan were homicidal one.
Therefore, the prosecution has proved beyond doubt
that death of Bharat and Shatrughan was homicidal
and injuries found on their person were inflicted
within 24 hours preceding performing the post-
mortem of both the deceased.
17. The prosecution examined PW-17 Manohar
Keshavrao Ghule. He deposed that he was attached
to Rural Hospital, Gangakhed from January, 1991 to
August, 1997. Injured Vimalbai w/o Bharat, Laxman
s/o Vithalrao and Padminibai w/o Shatrughan were
referred to him for medical examination by Police
Station Officer, Gangakhed. Laxman was referred to
him for medical examination on 2nd January, 1995,
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along-with the letter. He examined Laxman s/o
Vitthalrao Nirdude on the same day at about 5.15
p.m. and on examination, he found following
injuries on the person of Laxman:
"1. Incised wound - 6 X 1 X ½ cm. on left
parieto occipital region of skull - edges
were clearly cut. Blood clot was present.
2. Contusion - 5 X 4 cm. on left forearm
Doral aspect - reddish discolouration was
present.
3. Contusion - 7 X 4 cm. on left thigh
middle 1/3 level - ventral aspect oblique
in direction - reddish discolouration was
present.
4. Abrasion - 5 X 3 cm. on right scapular
area - reddish discolouration present.
5. Contusion - 5 X 4 cm. on right scapular
area - reddish discolouration was present."
. Medical Officer (PW-17) Manohar further
deposed that Injury No.1 was grievous in nature,
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caused by hard and sharp object. The age of the
injury was within 12 hours. Injury Nos. 2 to 5
were caused by hard and blunt object. They were
simple in nature and age was within 12 hours.
Accordingly, he has prepared certificate
Exhibit-54, which is scribed and signed by him.
The patient was referred to Medical College,
Ambejogai for the treatment of head injury.
. Medical Officer (PW-17) Manohar further
deposed that on 3rd January, 1995, Police Station
Officer, Gangakhed referred Padminibai w/o
Shatrughan Nirdunde and Vimalbai w/o Bharat
Nirdunde for medical examination, along with
reference letter dated 3rd January, 1995,
Exhibit-55. He has first examined Padminibai w/o
Shatrughan and on examination he found following
injuries:
"1. Contused Lacerated Wound - 3 X 1 X ½
cm. on left frontal region of skull - Blood
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clot was present. - reddish discolouration
was present.
2. Contusion - 5 X 4 cm. on right forearm
reddish bluish discolouration was present.
3. Contusion - 5 X 4 cm. on right arm
middle 1/3 level - oblique in direction
reddish bluish discolouration was present.
4. Contusion - 5 X 4 cm. on left infra-
scapular area - reddish bluish
discolouration was present."
. Medical Officer (PW-17) Manohar further
deposed that, all these injuries could be caused
possibly by hard and blunt object. The age of
injuries was within 24 hours and they were simple
in nature. He has prepared the certificate
Exhibit-55, of such examination, which is scribed
and signed by him.
. Medical Officer (PW-17) Manohar further
deposed that, at the same time, and date, he
examined Vimalbai w/o Bharat Nirdunde and on
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examination, he found following injuries present
on her person:
"1. Abrasion - 3 X 1/4 cm. on right arm
upper 1/3 level. - Blood clot was present -
redish bluish discolouration was present.
2. Contusion - 3 X 2 cm. on right arm
anterior aspect - bluish redish
discolouration was present."
. Medical Officer (PW-17) Manohar further
deposed that the injuries were caused by hard and
blunt object. They were simple in nature and age
of injuries was within 24 hours. Accordingly, he
prepared certificate Exhibit-57 and scribed and
signed by him.
. Medical Officer (PW-17) Manohar further
deposed that, injury No.1 on the person of Laxman
could be caused by hard and sharp object like axe.
Injury No.1 could be caused by axe (Article No.19)
shown to him. Such injury cannot be caused by any
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other weapon except an axe. Rest of the injuies on
the person of Laxman could be caused with the
stick (Article No.21) shown to him. Injuries
present on the person of Padminibai could be
caused by stick (Article No.21) shown to him.
Injuries on the person of Vimal could be caused by
stick, like Article No.21 shown to him.
. During the course of his cross-
examination by the counsel for accused Nos.2
and 3, Medical Officer (PW-17) Manohar stated
that, when Laxman was produced before him on 2nd
January, 1995, at about 5.15 p.m., initially he
was conscious. In his presence, statement of
Laxman was not recorded by Taluka Executive
Magistrate.
18. The prosecution examined PW-1 Padminibai
w/o Shatrughan Nirdunde, who is informant in this
case. The prosecution examined PW-11 Vimal w/o
Bharat Nirdunde. The prosecution examined PW-12
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Urmilabai w/o Laxmanrao Nirdunde. The prosecution
examined PW-13 Laxman Vithalrao Nirdunde. We would
discuss, in detail, the evidence of PW-1
Padminibai, PW-11 Vimalbai, PW-12 Urmilabai and
PW-13 Laxman, in later part of the Judgment.
19. The prosecution examined PW-2 Keshav
Sambhaji Paithane and PW-3 Datta Gyanba Kappe,
panch witnesses to inquest panchnama Exhibit-20,
Exhibit-21 and spot panchnamas Exhibit-22 and
Exhibit-23. But they turned hostile and did not
support the prosecution case. The prosecution
examined PW-4 Parashram Namdeo Chavan and PW-5
Tukaram Khanduji Ambhore, panch witnesses to
Memorandum Exhibits-26 to 28 and seizure panchnama
of weapons Exhibits-29 to 31. But they turned
hostile and did not support the prosecution case.
The prosecution examined PW-6 Ramchandra Narayan
Gaikwad and PW-7 Narhari Dnyanoba Solanke, panch
witnesses to arrest panchnama Exhibit-34 and panch
witnesses to seizure panchnama of clothes of
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deceased, Exhibit-35. But they also turned hostile
and did not support the prosecution case. The
prosecution examined PW-8 Vithal Baburao Shinde,
panch witness to seizure panchnama of clothes of
deceased, Exhibit-35. But he also turned hostile
and did not support the prosecution case.
20. The prosecution examined PW-9 Laxman
Bhaurao Phad, police head constable, police
station, Parbhani (Rural). He deposed that from
1993 to 1996, he was attached to Gangakhed police
station and worked as head constable. He was
posted for duty at Pimpaldari check-post by P.S.I.
Gangakhed. Police constable Dahiphale was posted
on duty along with him. On 2nd January, 1995, he
himself and his companion constable had gone to
the field of police patil casually, because they
were not feeling comfortable in the village. At
about 1.45 p.m., Meera Laxman Nirdunde, aged about
12 years, had come to call them from the field.
She informed them in the field of police patil
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that, Kendre's sons had killed her cousin uncles-
Bharat and Shatrughan. On hearing the said
information from Meera, he himself and his
companion constable went to village Pimpaldari.
Meera informed him names of Kendre's sons as
Govind, Dnyanoba and Balaji. She also informed him
that the father of Govind, Balaji and Dnyanoba was
at village Pimpaldari. Govind, Balaji and Dnyanoba
had come to village from the field and they along
with their father attacked on the house of Meera
and beat her father, her cousin uncle and other
family members present at the house. Meera also
informed that these accused pelted stones on their
house and then beat. Along with Meera, they went
at her residential house and he noticed that the
door of the house was closed from inside. The
inhabitants of the house were not ready to open
the door. He disclosed his identity and on hearing
his identity, they opened the door of the house.
There were injuries on the person of Laxman. Such
injuries were caused with Katti. Other inhabitants
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of the house had sustained invisible injuries due
to beating. The household articles in the house
were scattered here and there. There were stones
lying in front of their house. In the S.T. Bus, he
sent injured Laxman along with the constable for
medical treatment. He had enquired with Laxman and
other inhabitants and they told that accused beat
them. Laxman informed that, Balaji injured him
with Katti and Dnyanoba with stick. They also
informed him that stones were pelted. Fists and
kick blows were also given to them. In the
circumstances, they further informed that, by
closing door of the house, they sat inside the
house.
. PW-9 Laxman Bhaurao Phad, further
deposed that after sending Laxman for medical
treatment, he along with Kotwal of the village,
went to the field at the spot. The field is
about 2 K.M.s away from the village. The wife of
Bharat, the wife of Shatrughan were present in the
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field. There were corpse of Bharat and Shatrughan
lying. Their wives, who were present in the field,
started weeping. There were injuries present on
the head of both the deceased. He waited in the
field. After some times, P.S.I., Gangakhed namely
Choudhary came to the field. The wife of
Shatrughan had also sustained injury. For that
night, he waited near the corpse. On the next day
morning, post-mortem were performed.
. During the course of his cross-
examination, PW-9 Laxman Phad stated that, in the
field of police patil, there was no one present
and both the constables had gone to the field and
sat there. Whatever incident that was reported to
them by Meerabai, was reported to them in the
field only and thereafter not at any time. On
receiving report from Meera, they were satisfied
that cognizable offence was committed. They did
not reduce into writing the report given by Meera.
He did not reduce into writing the incident
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reported to them by Laxman. It would have been
possible for him to reduce in writing the report
given by Laxman and submit the same to the police
station along with the constable. He was also
cross-examined by the counsel for accused Nos.2
and 3.
21. The prosecution examined PW-10 Baburao
Manikrao Dahiphale, police constable, police
station, Gangakhed. He also deposed in tune with
Laxman Shahurao Phad (PW-9). He was also cross-
examined by the counsel for the accused.
22. The prosecution examined PW-14 Dadarao
Kishanrao Mundhe. But he turned hostile and did
not support the prosecution case.
23. The prosecution examined PW-16 Ramrao
Namdeorao Muley, P.S.I. He deposed that in the
year 1994-95 he was attached to police station,
Gangakhed. On 31st January, 1995 at about 8.30
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p.m. when he was present at police station,
Gangakhed, he arrested accused Gangaram, Balu and
Govind. He has seized the clothes on the person of
accused, namely Chaddi and banyan.
24. The prosecution examined PW-18 Balasaheb
Shankarrao Shinde, Talathi of Pimpalgaon Sajja who
deposed about the details of the concerned survey
numbers, names of land holders in the village, and
the lands owned by the family of the accused
persons and the family of deceased persons.
25. The prosecution examined PW-19 Shivaji
Salubaji Choudhary, Investigating Officer in this
crime. He deposed about the manner in which he has
carried out the investigation of the crime. In his
evidence, he stated that on 2nd January, 1995 at
about 7.00 p.m. informant Padminibai Nirdunde had
come to the police station, Gangakhed, and she
orally narrated the incident which was reduced
into writing. He has further stated details about
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the registration of the F.I.R. i.e. Crime No.2 of
1995 under Section 302, 307, 324 of the I.P. Code.
He further narrated details of carrying out the
spot panchnama, inquest panchnama and other
details.
26. The prosecution also examined PW-20
Ismailkhan Yusufkhan, P.S.I., Gangakhed. He
deposed about various panchnamas effected by him.
He further deposed that after recording memorandum
panchnamas, accused Govind Gangaram Kendre
produced axe, accused Balaji produced Katti and
accused Dnyanoba produced stick.
27. As already observed, the prosecution has
proved that the death of Bharat and Shatrughan was
homicidal. The real question falls for
consideration is, who is author of the injuries
inflicted on the person of Bharat and Shatrughan
and ultimately responsible for their death. It
appears that the trial Court instead of making
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honest endeavour to find out who are the real
culprits of the death of Bharat and Shatrughan,
and also serious injuries inflicted/ caused on the
person of Laxman (PW-13), keeping aside the
core/substratum of the prosecution case, travelled
in periphery and tried to find out reasons to
dislodge and disbelieve the evidence of the
injured eye witnesses to the incident i.e. PW-1
Padminibai and PW-11 Vimalbai and so also
overwhelming medical evidence brought on record by
the prosecution which corroborates to the evidence
of eye witnesses. The trial Court has given much
importance and emphasis on motive for commission
of offences. It is trite law that when the case
rests upon the direct evidence, the motive looses
its importance and the intention assumes
significance. However, the trial Court proceeded
to discuss in detail about the motive for
commission of such offence. The trial Court after
discussing the evidence of prosecution witnesses,
observed that though the civil dispute was pending
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between the parties, since for considerable period
there was no any scuffle or untoward incident
between the parties, there was no motive for
alleged commission of offence by the accused. In
fact the evidence of Padminibai (PW-1) and also
the other witnesses unequivocally indicates that
the accused arrived at the spot armed with axe,
Katti and stick, with an intention to assault and
kill Shatrughan and thereafter when Bharat came to
rescue him, then they assaulted Bharat and killed
him. The witnesses in their evidence, have stated
that the accused armed with weapons when arrived
at spot, were saying that the cattle of deceased
Shatrughan had entered in their field of the wheat
crop and damaged the wheat crop, since Shatrughan
has left his cattle free, and that was the
immediate reason/cause for the accused for
commission of offences alleged against them by the
prosecution and also enmity on account of civil
dispute.
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28. At this juncture, and before we proceed
to discuss the evidence of the eye witnesses, we
deem it appropriate to remind ourself the scope of
appeal under Section 386 of the Code of Criminal
Procedure filed by the State against the acquittal
of the Respondents. The Supreme Court in the case
of State of M.P. vs. Bacchudas Alias Balram and
others19, in Para 9 of the Judgment, observed thus:
"9. There is no embargo on the appellate
Court reviewing the evidence upon which an
order of acquittal is based. Generally,
the order of acquittal shall not be
interfered with because the presumption of
innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal
cases is that of if two views are possible
on the evidence adduced in the case, one
pointing to the guilt of the accused and
the other to his innocence, the view which
is favourable to the accused should be
adopted. The paramount consideration of
the court is to ensure that miscarriage of
19 (2007) 9 S.C.C. 135
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justice is prevented. A miscarriage of
justice which arise from acquittal of the
guilty is no less than from the conviction
of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon
the appellate court to reappreciate the
evidence where the accused has been
acquitted, for the purpose of ascertaining
as to whether any of the accused really
committed any offence or not. (See Bhagwan
Singh v. State of M.P.20). The principle to
be followed by the appellate court
considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable and
relevant and convincing materials have
been unjustifiably eliminated in the
process, it is a compelling reason for
interference. These aspects were
highlighted by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra 21,
Ramesh Babulal Doshi v. State of Gujarat 22,
Jaswant Singh v. State of Haryana23, Raj
Kishore Jha v. State of Bihar24, State of
20 (2003) 3 S.C.C. 21
21 (1973) 2 S.C.C. 793
22 (1996) 9 S.C.C. 225
23 (2004) 4 S.C.C. 484
24 (2003) 11 S.C.C. 519
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Punjab v. Karnail Singh25, State of Punjab
v. Phola Singh26, Suchand Pal v. Phani Pal 27
and Sachchey Lal Tiwari v. State of U.P.28
(Underlines added)
29. The same view is reiterated by the
Supreme Court in the case of Valson and another
vs. State of Kerala29.
30. Keeping in view the observations made by
the Supreme Court in the case of State of M.P.
vs. Bacchudas Alias Balram and others (supra) and
in the case of Valson and another vs. State of
Kerala (supra), we would proceed to review/re-
appreciate the crucial evidence brought on record
by the prosecution.
31. The prosecution examined PW-1 Padminibai
w/o Shatrughan Nirdunde. She deposed that she was
25 (2003) 11 S.C.C. 271
26 (2003) 11 S.C.C. 58
27 (2003) 11 S.C.C. 527
28 (2004) 11 S.C.C. 410.
29 (2008) 12 S.C.C. 241
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married with the deceased Shatrughan Nirdunde. She
has two sons and two daughters born out of the
said wedlock. Shriram is her husband's elder
brother. Laxman is also her husband's elder
brother, so also deceased Bharat. Her family and
family of deceased Bharat were residing in the
field along-with them. Their family and family of
Bharat were residing jointly. Shriram, Laxman and
rest of the family members were residing in the
village Pimpaldari. The field in which they were
residing, is situate about 5 to 7 fields away from
the village-Basti. Initially they owned and
possessed 12½ acres agricultural land. Out of
that, they sold 6½ acres land and now they possess
only six acres agricultural land. The agricultural
land of deceased accused Gangaram is situate to
the south of their agricultural land and adjacent
to the same. There is a common Dhura between their
agricultural land and land of Gangaram. The Survey
Number of their agricultural land is 198. The
total area of field Survey No.198 was 25 acres. In
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the decision of Civil Court, half of that land
i.e. 12½ acre land was given to Gangaram and rest
12½ acres land to their family. Dispute was going
on between their family and family of accused
persons on the cause of agricultural land. It was
the say of deceased Gangaram that, her family was
in possession of some portion of agricultural land
of Gangaram.
. PW-1 Padminibai further deposed that
incident took place about 3 and 1/4 years prior to
recording her evidence. It was the date 2nd, of
beginning month of new year. On that day, she
herself, Vimal w/o Bharat and her husband's sister
Prayagbai were plucking cotton in the field. The
deceased Bharat was taking rest at the Akhada
(cattle-shed) erected in the field. Her husband
was watering grams crop. It was about 11.00 a.m.
During the time her husband was watering grams
crop, the assailants came and then assaulted her
husband. The assailants came from the western
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side. The assailants were Govind, Balaji and
Dnyanoba. They were wearing half-pant, banyan and
handkerchiefs were tied around the forehead.
Accused Govind had an axe in his hands. Accused
Balaji had Katti with him. There were two injuries
on the head of her husband due to an axe blow
given by Govind. There were injuries of Katti on
the right hand fingers, and fingers were partly
cut off. They were so cut off due to injuries by
Katti of Balaji. Accused Dnyanoba had stick with
him. There were beating marks on the hands and
legs of her husband due to which fractures were
caused to the hands and legs and bones were almost
separated and hanging. On hearing the shouts of
her husband, she went running to her husband. When
she was proceeding towards her husband and she was
at a distance of about 4 to 5 ft. from her
husband, accused Dnyanoba came towards her and
inflicted blow with stick on her head, hands and
legs. Due to blows with the stick as aforesaid,
she became unconscious and fell on the spot where
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beating was given. On hearing their shouts, Bharat
came running towards them and when he was at some
distance from them, accused Nos.1 to 3 beat him.
Vimalbai and Prayagbai also came running towards
them. Assailants went away towards the village.
The right leg of Bhrat was fractured. Vimal and
Prayagbai followed the accused, who proceeded
towards village-basti. Prayagbai reported her
that, accused also beat to the inhabitants at
their house in the village. Prayagbai reported her
that, brother Laxman (Bhau) was injured with
Katti. Police came to the field. When police came
to the field, her husband Shatrughan was lying in
dead condition and Bharat was alive. After the
police came in the field, Bharat made signal with
his hand and then he died. Police officer Phad had
come to their field after the incident.
. PW-1 Padminibai further deposed that, on
that day it was the say of accused persons that,
her husband Shatrughan had left free his cattle in
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the wheat crop of accused persons. On that day, at
about 6.00 she herself, Padminibai and Vimalbai
were taken to Gangakhed. She was examined by the
doctor in the hospital at Gangakhed. Her statement
was recorded by the police. The complaint dated
2nd January, 1995, which was shown to her, bears
her signature. The contents of the complaint after
recording the same, were read over to her. The
complaint is at Exhibit-18. Muddemal property
Article No.19 (axe), Article No.20 (Katti) and
Article No.21 (stick) shown to her, were the same
weapons. She identified the clothes of Shatrughan
and Bharat. At the time of incident, accused
Govind was wearing stitched half-pant. Accused
Balaji and Dnyanoba were wearing half-pants having
elastics at the waist (ready-made). Accused Govind
was wearing banyan (Article No.23), accused
Dnyanoba was wearing banyan (Article No.27) and
accused Balaji was wearing half-pant (Article
No.22), accused Dnyanoba was wearing Article No.24
and accused Balaji was wearing Article No.26.
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. During the course of her cross-
examination by the counsel for accused No.1, PW-1
Padminibai stated the details about the field
Survey No.198 owned by them. She further stated
that the height of common Dhuras of three sub-
divisions is ranging from 2 ft., 2½ ft. to 3 ft.
There is well in the sub-division where there was
cotton crop. Around the well there is heap of
excavated material like stone and earth, having
the height up-to the ceiling of the Court-Hall
from the ground level, i.e. 13 to 14 ft. In the
sub-division of the field where there is well, to
the western side of the well there is half Dhura
having the height of about 3 ft. from the ground
level in that sub-division of the well. The Akhada
on the field is at a distance of about 30 to 40
ft. from the well and not at a distance of about
300 to 400 ft. Such Akhada is erected to the
western side of the well on the first Dhura of
sub-division after the well, towards western side.
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On the said Dhura, and surrounding the residential
house and Akhada, there are trees of Jambhul,
Sheoga, Babhul, Anjan. She has further stated
details about the Akhada (cattle-shed) and their
residential house. She further stated that at the
time of incident, cotton was stored in the house.
At the place of residential house and Akhada on
the field, there is heap of fodder, adjacent to
Dhura. She has further stated about the details
about the fields owned by other persons. She
further stated that, adjacent to their field where
there was cotton crop, big bullock-cart way
leading to village passes. The said road also
leads to villages Waghadari, Pisewadi, Anandwadi,
Tandalwadi, Selmoha and Anterwali. The said
bullock-cart way is busy road, and there is often
traffic on the said road. She further stated that
village Pimpaldari is at a distance of about 1½
K.M. to 2 K.M. from their field. She further
stated details about her residential house and the
details about adjoining houses. She further stated
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that front portion of their residential house is
constructed in stones and mortar. Rest of the
three walls of the house are constructed in mud.
After effecting entry in the house, by the front
entrance door, on both sides there are "Dhalaj"
(open space). There is stair-case inside the house
for going on the terrace of their house. If the
northern side entrance door is closed, then no one
can enter in their house, and entry to the outside
is prohibited.
. During the course of her cross-
examination, PW-1 Padminbai further stated that
prior to the incident, on the large scale Ganja
plants were seized by the police from the fields
of villagers of their village. She further stated
that after the incident, she herself and Vimalbai
are residing at their motherhood respectively.
32. We have discussed in detail, in foregoing
Paragraph, the evidence of PW-1 Padminibai. It is
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brought on record by the prosecution that
Padminibai also sustained the injuries. Medical
Officer PW-17 Manohar Ghule deposed in his
evidence that, he medically examined Padminibai
w/o Shatrughan and on examination he found four
injuries which are already mentioned while
discussing the evidence of PW-17 Manohar Ghule. He
has stated that the age of injuries was within 24
hours and the injuries sustained by Padminibai
were simple in nature. The fact that PW-1
Padminibai sustained injuries is brought on record
by the prosecution. There was no reason for the
trial Court to hold that Padminibai has not
witnessed the incident. As already observed, the
trial Court after discussing the evidence of
Padminibai, recorded the conclusion that
Padminibai was not eye witness to the incident. At
one stage the trial Court reached to the
conclusion that Padminibai (PW-1) has not
witnessed the incident at all, and then went on
discussing her evidence by observing that, even as
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per her version she has not actually seen the
assault by the accused on Shatrughan.
33. If the evidence of Padminibai (PW-1) as
discussed herein above is considered in its
entirety, she stated the date of incident, the
approximate time of the incident. She further
stated that she herself, Vimal w/o Bharat and her
husband's sister Prayagbai were plucking cotton in
the field. Deceased Bharat was taking rest at the
Akhada (cattle-shed) erected in the field. Her
husband was watering grams crop. It was about
11.00 a.m. When her husband was watering grams
crop, the assailants came and then assaulted her
husband. She stated that assailants Govind, Balaji
and Dnyanoba arrived at the spot armed with
weapons. Accused Govind had an axe in his hands.
Accused Balaji had Katti with him and accused
Dnyanoba had stick with him. On hearing the shouts
of her husband, she went running to her husband.
When she was proceeding towards her husband and
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was at a distance of about 4 to 5 feet from her
husband, accused Dnyanoba came towards her and
inflicted blow with stick on her head, hands and
legs. Due to the blows of stick she became
unconscious and fell on the spot where beating was
given to Shatrughan. Her evidence, even
slightestly cannot be doubted. Therefore the
findings recorded by the trial Court that she had
no opportunity to see assailants or the assailants
holding the weapons or that she did not see
assailants actually assaulting the husband, are
totally perverse. As stated by Padminibai, she was
at a distance of 4 to 5 feet from her husband, and
she started going towards her husband after
hearing the shouts of her husband, that itself
indicates that she witnessed that the blow by axe
was given by accused Govind on the head of
Shatrughan and other accused were also assaulting
him. Padminibai (PW-1) had complete opportunity
to see the accused, the weapons held by them,
their demeanour and actual assault on Shatrughan.
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Ultimately, Padminibai and other eye witnesses are
residing in the village, and it is not expected
from the rustic villagers that they should tell
exact time of the incident and minute details,
that too in such a state of mind when Padminibai
was witnessing the incident of murderous attack by
the accused on her husband Shatrughan. At the cost
of repetition, Padimibai is injured witness and
her injuries are noticed by medical officer (PW-
17) Manohar Ghule on her medical examination. By
any stretch of imagination her presence at the
spot of incident cannot be doubted or disbelieved.
Her evidence is completely trustworthy, and
inspires full confidence. The suggestion given by
the defence that on account of some dispute in her
joint family, there was quarrel amongst four
brothers, and as a result there was scuffle, in
which death of Shatrughan and Bharat took place,
and Laxman sustained serious injuries, has been
firmly denied by Padminibai (PW-1) and other
witnesses as well. On the contrary, Padminibai
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reiterated her version stated in the examination
in chief, that accused assaulted Shatrughan and
when Bharat came to rescue Shatrughan, then Bharat
was also assaulted, and both of them were killed
by the accused. Merely because Padminibai stated
during her cross-examination that, she does not
know about the civil dispute pending between the
family of the deceased and accused, cannot be the
ground to dislodge or disbelieve her evidence.
Though it is argued by the senior counsel
appearing for the Respondents that the part of the
F.I.R. is as per narration of Vithal i.e. father-
in-law of Padminibai about the pendency of civil
suit, on that ground we are not convinced to
disbelieve the evidence of Padminibai. Ultimately
F.I.R. is an information given to the police
station so as to set the investigation in motion.
The F.I.R. is not an encyclopedia. As already
observed, neither the defence nor the trial Court
concentrated on the core/substratum of the
prosecution case, as narrated by the injured
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witness Padminibai and Vimal and other witness
Urmila that - the assailants came armed with
weapons and assaulted Shatrughan and Bharat on
vital parts, which resulted into their death. Upon
considering the evidence on record in its
entirety, it is crystal clear that the accused
came prepared having weapons in their hands like
axe, Katti and stick and gave blows on the vital
parts of the body of Shatrughan and Bharat. The
intention was obvious, that they wanted to ensure
the death of Shatrughan, and in the said process
when Bharat came to rescue Shatrughan, then Bharat
was also assaulted on vital parts, and both of
them were killed by the Respondents-accused. When
there is substantive piece of evidence/direct
evidence in the nature of eye witnesses and it
gets complete corroboration from the medical
evidence, it needs to be emphasized that, it is
not necessary to search for further corroboration
to the evidence of the eye witnesses. The evidence
of Padminibai gets complete corroboration from the
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medical evidence, and also from the evidence of
other eye witnesses.
34. It appears that the trial Court went on
discussing insignificant admissions given by the
witnesses in cross-examination which would not
really affect core/substratum of the prosecution
case and also proceeded to rely upon the minor
contradictions and omissions, and thereby
disbelieved the entire evidence of the eye
witnesses. The trial Court observed that there is
pendency of civil litigation between the parties
on the cause of agricultural land since 1949-50,
however there was no any untoward incident in the
past between two families, and therefore there was
no immediate cause to kill two persons and attempt
to kill third person by the accused. As already
observed, Padminibai in her evidence has stated
that the accused were asking her husband
Shatrughan, why he left free his cattle in wheat
crop of the field owned by the accused. Though the
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learned Judge has observed that, he is aware that
question of motive is not material where there is
direct evidence of acts of accused and acts
themselves are sufficient to disclose the
intention of the actor, however proceeded to
discuss the 'motive' and devoted few pages, and
ultimately reached to the conclusion that, there
was no motive for commission of offence, and also
there was no immediate cause to kill the deceased
and attempt to kill Laxman. Such findings recorded
by the trial Court that there was no immediate
cause to kill deceased and attempt to murder
Laxman, are perverse and contrary to the evidence
of the prosecution witnesses brought on record
that, there was immediate cause for attacking the
deceased by the accused on account of cattle of
the deceased Shatrughan entering into the field of
the accused, as stated by the accused themselves
when they arrived at the spot of incident armed
with weapons. The finding recorded by the trial
Court that there was no damage to the wheat crop
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is insignificant, in as much as, it would not
affect the core/substratum of the prosecution
case as stated by the eye witnesses, of actual
assault by the accused and death of Shatrughan and
Bharat and subsequent murderous attack by the
accused on Laxman by going to his house sitaute in
village, immediately on the same day, after the
main incident which had taken place in the
agricultural field of the deceased. It has also
come on record that the deceased i.e. Shatrughan
and Bharat, along with their family members, were
residing in the field having their houses in the
field and other two brothers, Laxman and Shriram
were residing in the house situate in village,
which is about 1½ to 2 K.M. from their
agricultural field. The presence of Padminibai,
Vimalbai and Urmila in the agricultural field at
the relevant time was but natural being
agriculturists and they were in the field for
plucking the cotton. It is disturbing to note
that the trial Court observed, Padminibai (PW-1)
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maintained the secrecy about the incident and
about the names of the assailants till the time of
recording First Information Report on 2nd January,
1995 till 7.30 p.m.
35. It is also observed by the trial Court
that there was delay in lodging the F.I.R. and
when the police constable came to the field and
arrived at the spot there was no reason for not
lodging the F.I.R. immediately. Such findings
recorded by the trial Court are completely
unacceptable and perverse, in as much as
Padminibai herself sustained injuries and
thereafter, for a while she was unconscious, and
in such a state of mind and mental trauma when her
husband was killed in front of her, delay of few
hours in lodging the F.I.R., by any stretch of
imagination cannot be considered fatal to the
prosecution case and reason for the criticism by
the trial Court and defence. Therefore, the
argument of the learned senior counsel appearing
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for the defence that there was delay in lodging
the F.I.R. and therefore the case of the
prosecution should be disbelieved, is without any
substance. The Reported Judgments on which
reliance has been placed by the learned senior
counsel, in support of his submission about delay
in lodging the F.I.R. are pronounced in total
different fact situation, and facts of said cases
cannot be compared vis-a-vis the facts involved in
the present case. The Supreme Court in the case of
Mukesh and another vs. State (NCT of Delhi) and
others30, in Paras 53, 54 and 55 held thus:
"53. In the context of belated FIR, we may
usefully refer to certain authorities in
the field. In Ram Jag v. State of U.P.31,
it was held as: (SCC p. 208, para 16)
"16. ... that witnesses cannot be called
upon to explain every hour's delay and
a commonsense view has to be taken in
ascertaining whether the first
30 (2017) 6 S.C.C. 1
31 (1974) 4 S.C.C. 201
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information report was lodged after an
undue delay so as to afford enough
scope for manipulating evidence.
Whether the delay is so long as to
throw a cloud of suspicion on the
seeds of the prosecution case must
depend upon a variety of factors which
would vary from case to case. Even a
long delay in filing report of an
occurrence can be condoned if the
witnesses on whose evidence the
prosecution relies have no motive for
implicating the accused. On the other
hand, prompt filing of the report is
not an unmistakable guarantee of the
truthfulness of the version of the
prosecution."
54. In State of H.P. v. Rakesh Kumar32, the
Court repelled the submission pertaining to
delay in lodging of the FIR on the ground
that the first endeavour is always to take
the person to the hospital immediately so
as to provide him medical treatment and
only thereafter report the incident to the
police. The Court in the said case further
held that every minute was precious and,
therefore, it is natural that the witnesses
accompanying the deceased first tried to
32 (2009) 6 S.C.C. 308
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take him to the hospital so as to enable
him to get immediate medical treatment.
Such action was definitely in accordance
with normal human conduct and psychology.
When their efforts failed and the deceased
died they immediately reported the incident
to the police. The Court, under the said
circumstances ruled that in fact, it was a
case of quick reporting to the police.
55. Judged on the anvil of the aforesaid
decisions, we have no hesitation in
arriving at the conclusion that there was
no delay in lodging of the FIR."
36. There was no question of maintaining
secrecy about the incident by Padminibai as has
been held by the trial Court. It has come on
record that other eye witnesses have also
witnessed the incident. It is common knowledge
that independent witnesses are always hesitant to
come forward to give evidence against accused
persons by reason of apprehension on their part as
regards the safety of their person or property. In
the present case, the accused dared to kill
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Shatrughan and Bharat by using sharp weapons,
assaulted Padminibai (PW-1) and Vimalbai (PW-11),
and attempted to kill Laxman by going from field
to his house and also challenged other family
members of Laxman that, they should not dare to
come forward against accused. In such a situation
when the accused committed two murders in broad
day light and also assaulted Padminibai (PW-1) and
Vimalbai (PW-11) and attempted to kill Laxman, the
expectation that independent witnesses should come
forward to depose against them, was impossible.
Merely because Padminibai, Vimal and Urmila were
interested witnesses, is no ground to dislodge or
disbelieve their evidence as has been observed by
the trial Court.
37. The main criticism by the defence qua the
evidence of PW-1 Padminibai, PW-11 Vimal and PW-12
Urmilabai is that they are partisan or interested
witnesses. In this respect, at this juncture, it
would be apt to make reference to the judgment of
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the Supreme Court in the case of Masalti vs. State
of Uttar Pradesh33. The Supreme Court in the case
of Masalti (supra) has made it clear that it is,
no doubt, the quality of the evidence that matters
and not the number of witnesses who give evidence.
The Supreme Court in para 14 of the judgment in
case of Masalti (supra) observed, thus:
"14. Mr. Sawhney has then argued that where
witnesses giving evidence in a murder trial
like the present are shown to belong to the
faction of victims, their evidence should
not be accepted, because they are prone to
involve falsely members of the rival
faction out of enmity and partisan feeling.
There is no doubt that when a criminal
Court has to appreciate evidence given by
witnesses who are partisan or interested,
it has to be very careful in weighing such
evidence. 51 S.C.-IO 146 Whether or not
there are discrepancies in the evidence;
whether or not the evidence strikes the
Court as genuine; whether or not the story
disclosed by the evidence is probable, are
all matters which must be taken into
33 AIR 1965 SC 202
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account. But it would, we think, be
unreasonable to contend that evidence given
by witnesses should be discarded only on
the ground that it is evidence of partisan
or interested witnesses. Often enough,
where factions prevail in villages and
murders are committed as a result of enmity
between such factions, criminal Courts have
to deal with evidence of a partisan type.
The mechanical rejection of such evidence
on the sole ground that it is partisan
would invariably lead to failure of
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct."
38. The Supreme Court in the case of Rakesh
and another vs. State of Madhya Pradesh34, in Para
18 of the Judgment, observed thus:
"18. Evidence of related witness can be
relied upon provided it is trustworthy.
34 (2011) 9 S.C.C. 698
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Mere relationship does not disqualify a
witness. Witness who are related to the
victim are as competent to depose the facts
as any other witness. Such evidence is
required to be carefully scrutinised and
appreciated before reaching to a conclusion
on the conviction of the accused in a given
case. [See Himanshu v. State (NCT of
Delhi)35 and Bhajan Singh36."
39. It is also surprising to note that the
trial Court proceeded to take into consideration
and gave much importance to the subsequent conduct
of Padminibai, after incident was over. In fact as
already observed, the trial Court ought to have
concentrated on the core/substratum of the
prosecution case instead of traveling in periphery
and making endeavour to disbelieve the prosecution
case by disbelieving evidence of injured eye
witnesses and over-whelming medical evidence which
corroborates to the evidence of eye witnesses. The
prosecution witnesses have no control over the
35 (2011) 2 S.C.C. 36
36 (2011) 7 S.C.C. 421
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police officers and in the present case on the
constables who went to the spot of incident. The
informant cannot be blamed for not passing on the
information by the concerned police constables to
their superiors and recording the F.I.R. by the
concerned police station immediately after the
incident was over and when the police constables
visited the place of occurrence. It has also come
on record that police station is at Gangakhed
which is about 15 KMs. away from the place of
occurrence. Upon appreciation of evidence of
Padminibai (PW-1), we are of the view that the
evidence of Padminibai, gets complete
corroboration from the medical evidence, and can
form the basis for convicting the Respondents-
accused for committing murder of Shatrughan and
Bharat and also assaulting Padminibai (PW-1) and
Vimalbai (PW-11). Though the defence tried to
bring on record certain omissions, contradictions
and improvements in the evidence of Padminibai,
nevertheless those alleged omissions,
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contradictions or improvements are not of
substantial in character, which would affect the
core/substratum of the prosecution case and
nullify the direct evidence of injured witnesses
which gets complete corroboration from the medical
evidence. The Supreme Court in the case of
Mahendra Pratap Singh vs. State of Uttar Pradesh37,
in Para 28 of the Judgment, observed that:
"28. In Inder Singh v. State (Delhi Admn.) 38
this Court while dealing with the
appreciation of evidence in a criminal
case, held that: (SCC p.162, para 2)
'2. Credibility of testimony, oral and
circumstantial, depends considerably
on a judicial evaluation of the
totality, not isolated scrutiny. While
it is necessary that proof beyond
reasonable doubt should be adduced in
all criminal cases, it is not
necessary that it should be perfect.'"
40. The suggestion given to Padminibai in her
37 (2009) 11 S.C.C. 334
38 (1978) 4 S.C.C. 161
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cross-examination that Shriram and Laxman at one
hand and Bharat and Shatrughan at the other hand,
on account of some dispute and differences,
quarreled with each other and the incident was
outcome of their scuffle/quarrel has been denied
in toto by Padminibai and other prosecution
witnesses. It is improbable and unacceptable that
injured prosecution witnesses will leave the real
culprits aside and will falsely implicate the
Respondents-accused in the commission of offence.
41. Now we would like to discuss the evidence
of PW-11 Vimalbai w/o Bharat Nirdunde. Vimalbai
(PW-11) deposed that her marriage with deceased
Bharat took place at Pimpaldari about 12 years ago
from the date of recording her evidence. After
marriage, she started residing with her husband at
village Pimpaldari. Deceased Bharat, Shatrughan,
she herself and Padminibai and their children were
residing in the field. The area of that field was
12½ acres. She knows accused Nos.1 to 3. Their
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names are Govind, Balaji and Dnyanoba. The name of
their father is Gangaram Kendre. The agricultural
land of accused is situate to the southern side of
her agricultural land. There were disputes on the
cause of the field between them and Gangaram, but
she did not know the details of such dispute.
. PW-11 Vimal further deposed that
incident took place about 3 and 1/4 years ago from
the date of recording her evidence. It was the
date 2nd of 1995, and Marathi month "Poush". She
herself, Prayag, Urmila and Padmini were plucking
the cotton in the field. Bharat and Shatrughan
were also present in the field. Shatrughan was
watering grams crop. Her husband was taking rest
at the Akhada. Govind, Balaji and Dnyanoba came
from southern side. She again says that they came
from western side. They wore banyan and Chaddi and
handkerchiefs were tied to their heads. Balaji had
on his person ready-made Chaddi and white banyan.
Dnyanoba had on his person ready-made half Chaddi
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and blue coloured sandow banyan. Accused Govind
had an axe in his hands. Accused Balaji had Katti
and accused Dnyanoba had stick with him in his
hands. First of all Govinda came, thereafter
Balaji and thereafter Dnyanoba. They assaulted
Shatrughan. Accused Govinda inflicted blow with an
axe on the head of Shatrughan. Accused Balaji
inflicted blow with Katti on the left hand palm of
Shatrughan. Accused Dnyanoba gave stick blows on
the legs of Shatrughan due to which fractures were
caused to the legs and bones had come out. Accused
assaulted Shatrughan alleging that cattle were
left free in their wheat crop. After assault to
Shatrughan, Padmini went towards Shatrughan. She
went near Shatrughan and requested accused not to
assault her husband. In that process, she had
received beating on her head because of which due
to giddiness, she fell on the ground. Accused
Dnyanoba gave blow with stick on the head of
Padmini.
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. PW-11 Vimal further deposed that, her
husband, who was resting at the Akhada, went
towards western side, the place where Shatrughan
was assaulted. Accused Govind, Balaji and Dnyanoba
assaulted her husband. Govind inflicted two blows
with an axe on the head of her husband due to
which head of Bharat was cut. Accused Balaji
inflicted blow with Katti on the left hand of her
husband. Accused Dnyanoba inflicted blow with
stick on the right leg of her husband, due to
which there was severe swelling to the right leg.
When she went near her husband, accused beat her.
Accused Balaji gave blow with Katti on right leg
on ulna bone. Accused Dnyanoba beat her with
stick.
. PW-11 Vimal further deposed that, after
assaulting afore-said, accused Nos.1 to 3
proceeded towards village. Urmila and Padmini also
went to the village-basti. She was waiting in the
field upto 6 to 7 p.m. When Phad Jamadar came to
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the field, her husband Bharat was in the bullock-
cart. After Phad came, her husband made signal to
Phad by his hand and then her husband died. She
herself, Padmini and Gaya put Bharat in the
bullock-cart for taking him towards village.
Police Jeep came and then they took them to police
station, Gangakhed. Thereafter, they were taken
for medical examination. She was interrogated in
the police station.
. During the course of her cross-
examination, PW-11 Vimal stated that she did not
know whether dispute on the cause of field is
going on between family of accused persons and her
family since last 40 to 50 years. She did not know
what is mean by sub-division and fragmentation.
She did not understand consolidation, injunction,
civil suit. She did not know about mutation of
names, recording names in the 7/12 extract. She
knows that there was dispute over agricultural
land between her family and family of accused
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persons. She did not know since when such dispute
existed and subject matter and details of the
dispute. In the adjoining lands of her land,
agricultural operations, watering of the crops
were in progress. The agricultural lands of
accused persons is situate to the southern side of
her agricultural land. The assailants came from
western side. The "Maramari" (fight) took place in
the field where there was standing grams crop.
Shatrughan was lying in the field where there was
grams crop standing. Bharat was lying in the
adjoining field where there was cotton crop
standing. On hearing hue and cry, she herself and
Padmini started towards the same. It did happen
that Padminibai led on the person of her husband
and she herself on the person of her husband. Her
clothes were blood stained. She showed her blood
stained petticoat to the police but police did not
take the same in their possession and police burnt
the same in fire. Incident took place at about
11.00 to 11.30 a.m. She was in the field upto 6.30
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p.m. Police Jamadar first arrived at the spot.
Thereafter 2 to 3 villagers had come to the field.
They saw the situation and then went away. She
denied that on the day of incident, Shriram and
Laxman came in the field and demanded agricultural
produce from Bharat and Shatrughan and on that
cause dispute took place and in that dispute
Bharat and Shatrughan sustained injuries and died.
. PW-11 Vimal further stated in her cross-
examination that her statement was recorded by the
police. The contents of portion marked "A" were
read over to her. She asserted that she has not so
stated in her statement before the police. Her
father-in-law did not tell the contents of portion
marked "A" in her statement. She did not know as
to how the contents of portion marked "A" came to
be incorporated in her statement dated 3rd
January, 1995. She has stated in her statement
before the police that accused wore banyan, Chaddi
and handkerchiefs were tied to their heads. She
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cannot assign the reasons for such omission in her
police statement. She has stated in her statement
before the police that, Balaji had on his person
ready-made Chaddi and white banyan, Dnyanoba had
on his person ready-made half Chaddi and blue
coloured sandow banyan. She cannot assign any
reason for such omission in her police statement.
She has stated in her statement before the police
that, accused Govind inflicted two blows with an
axe on the head of her husband due to which head
of her husband was cut into two portions. She
cannot assign any reason for such omission in her
police statement. She has not stated in her
statement before the police that, after the
incident was over, Padminibai proceeded towards
village. She has stated in her statement before
the police that, when Phad Jamadar came to the
field, Bharat was kept in the bullock-cart. She
cannot assign any reason for such omission in her
police statement. She has stated in her police
statement that, after Phad Jamadar arrived in the
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field, her husband Bharat made signal to him by
hand and then he died. She cannot assign any
reason for such omission in her police statement.
42. We have discussed the evidence of Vimal
(PW-11) in detail in afore-said paragraph. She has
clearly stated in her evidence that family of
Shatrughan and her family were residing in the
field. She has stated about the details how the
incident had taken place. As already discussed,
she categorically stated that accused assaulted
Shatrughan. Accused Govind inflicted blow with an
axe on the had of Shatrughan. Accused Balaji
inflicted blow with Katti on the left hand palm of
Shatrughan. Accused Dnyanoba gave stick blows on
the legs of Shatrughan. We have already discussed
the evidence of PW-17 Manohar Ghule who medically
examined Vimalbai (PW-11) wherein he noticed two
injuries on her person. His evidence shows that
Vimalbai suffered injuries within 24 hours before
she was examined by him and he described that
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those injuries are simple in nature. Therefore,
Vimalbai was not only eye witness to the incident
but she was also injured in the said incident. She
stated that when she went near Bharat, accused
beat her. She further deposed that after the said
incident in the field, the accused proceeded
towards the village. Evidence of Vimalbai (PW-11)
is not shattered in the cross-examination, in as
much as she denied the suggestion that on the day
of incident, Shriram and Laxman came in the field
and demanded agricultural produce from Bharat and
Shatrughan and on that cause dispute took place
and in that dispute Bharat and Shatrughan
sustained injuries and died. She reiterated during
her cross-examination, the manner in which the
incident had taken place and how the accused
assaulted Shatrughan and Bharat and killed them
and also assaulted Padminibai and herself. It
appears that the trial Court by ignoring the
evidence of Vimalbai on the core/substratum of
the prosecution case, proceeded to discuss her
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evidence and gave importance to minor
contradictions, omissions, and recorded perverse
finding that the presence of Vimalbai on the spot
is not proved by the prosecution beyond reasonable
doubt.
43. Upon considering the evidence of
Padminibai (PW-1) and Vimalbai (PW-11) in its
entirety, their evidence corroborates with each
other and also gets corroboration from the medical
evidence. Their presence on the spot cannot be
doubted since both of them sustained injuries
during the said incident, as noticed by PW-17
Manohar Ghule. The Supreme Court in the case of
Mukesh and another vs. State (NCT of Delhi) and
others (supra), while discussing the evidentiary
value of the injured witnesses, in Para 81 and 82
of the Judgment held as under:
"81. The injuries found on the person of PW
1 and the fact that PW 1 was injured in the
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same occurrence lends assurance to his
testimony that he was present at the time
of the occurrence along with the
prosecutrix. The evidence of an injured
witness is entitled to a greater weight and
the testimony of such a witness is
considered to be beyond reproach and
reliable. Firm, cogent and convincing
ground is required to discard the evidence
of an injured witness. It is to be kept in
mind that the evidentiary value of an
injured witness carries great weight.
82. In Mano Dutt v. State of U.P.39, it was
held as under: (SCC pp. 90-92, para 31)
"31. We may merely refer to Abdul
Sayeed v. State of M.P.40 where this
Court held as under: (SCC pp. 271-72,
paras 28-30)
'28. The question of the weight to be
attached to the evidence of a witness
who was himself injured in the course
of the occurrence has been extensively
discussed by this Court. Where a
witness to the occurrence has himself
been injured in the incident, the
39 (2012) 4 S.C.C. 79
40 (2010) 10 S.C.C. 259
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testimony of such a witness is
generally considered to be very
reliable, as he is a witness that
comes with a built-in guarantee of his
presence at the scene of the crime and
is unlikely to spare his actual
assailant(s) in order to falsely
implicate someone. 'Convincing
evidence is required to discredit an
injured witness.' [Vide Ramlagan Singh
v. State of Bihar41, Malkhan Singh v.
State of U.P.42, Machhi Singh v. State
of Punjab43, Appabhai v. State of
Gujarat44, Bonkya v. State of
Maharashtra45, Bhag Singh v. State of
Punjab46, Mohar v. State of U.P.47 (SCC
p. 606b-c), Dinesh Kumar v. State of
Rajasthan48, Vishnu v. State of
Rajasthan49, Annareddy Sambasiva Reddy
v. State of A.P.50 and Balraje v. State
of Maharashtra51.]
29. While deciding this issue, a
41 (1973) 3 S.C.C. 881
42 (1975) 3 S.C.C. 311
43 (1983) 3 S.C.C. 470
44 1988 Supp. S.C.C. 241
45 (1995) 6 S.C.C. 447
46 (1997) 7 S.C.C. 712
47 (2002) 7 S.C.C. 606
48 (2008) 8 S.C.C. 270
49 (2009) 10 S.C.C. 477
50 (2009) 12 S.C.C. 546
51 (2010) 6 S.C.C. 673
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similar view was taken in Jarnail
Singh v. State of Punjab52 where this
Court reiterated the special
evidentiary status accorded to the
testimony of an injured accused and
relying on its earlier judgments held
as under: (SCC pp. 726-27, paras 28-
29)
"28. Darshan Singh (PW 4) was an
injured witness. He had been
examined by the doctor. His
testimony could not be brushed
aside lightly. He had given full
details of the incident as he was
present at the time when the
assailants reached the tubewell.
In Shivalingappa Kallayanappa v.
State of Karnataka53 this Court
has held that the deposition of
the injured witness should be
relied upon unless there are
strong grounds for rejection of
his evidence on the basis of
major contradictions and
discrepancies, for the reason
that his presence on the scene
stands established in case it is
52 (2009) 9 S.C.C. 719
53 1994 Supp. (3) S.C.C. 235
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proved that he suffered the
injury during the said incident.
29. In State of U.P. v. Kishan
Chand54 a similar view has been
reiterated observing that the
testimony of a stamped witness
has its own relevance and
efficacy. The fact that the
witness sustained injuries at the
time and place of occurrence,
lends support to his testimony
that he was present during the
occurrence. In case the injured
witness is subjected to lengthy
cross-examination and nothing can
be elicited to discard his
testimony, it should be relied
upon (vide Krishan v. State of
Haryana55). Thus, we are of the
considered opinion that evidence
of Darshan Singh (PW 4) has
rightly been relied upon by the
courts below."
30. The law on the point can be
summarised to the effect that the
testimony of the injured witness is
54 (2004) 7 S.C.C. 629
55 (2006) 12 S.C.C. 459
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accorded a special status in law. This
is as a consequence of the fact that
the injury to the witness is an inbuilt
guarantee of his presence at the scene
of the crime and because the witness
will not want to let his actual
assailant go unpunished merely to
falsely implicate a third party for the
commission of the offence. Thus, the
deposition of the injured witness
should be relied upon unless there are
strong grounds for rejection of his
evidence on the basis of major
contradictions and discrepancies
therein.'"
44. Now, we would proceed to discuss the
evidence of PW-12 Urmilabai w/o Laxmanrao
Nirdunde. PW-12 Urmilabai deposed that the name of
her father-in-law is Vithalrao. Bharat,
Shatrughan, Shriram and Laxman were residing
jointly. Shriram and Laxman were residing in the
house in the village and Bharat and Shatrughan in
the house which was in the field. She did not know
the Survey Number of the field. Gangaram's land is
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situate to the southern side of her land. She did
not understand as to how many acres land her
family owned. The dispute was going on in respect
of agricultural land, but she did not know such
dispute.
. PW-12 Urmilabai further deposed that
incident took place about 3 and 1/4 years prior to
recoding her evidence. They were plucking cotton.
It was about 10.00 to 11.00 a.m. She herself,
Prayag, Vimal and Padmin were plucking the cotton.
Bharat and Shatrughan were also present in the
field. Shatrughan was watering grams crop and
Bharat was taking rest. Govind Kendre, Dnyanoba
Kendre and Balaji Kendre, all of a sudden came
there and all inflicted blow with an axe on the
head of Shatrughan. They came from Varla side
(western side). Govind Kendre inflicted blow with
an axe. Heavy beating was given on the leg which
caused multiple fractures. Dnyanoba Kendre so
beat. Balaji Kendre beat on the hand and fingers.
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Shatrughan was shouting for help. Bharat came
running on hearing such cry. On hearing the cry of
Shatrughan, she also proceeded towards Shatrughan.
When Bharat was coming, beating was given to him
on his head by all three accused. Govind assaulted
Bharat with an axe on his head. Balaji beat on the
leg of Bharat. Dnyanoba beat on the hand. Balaji
assaulted with Katti on the hand of Bharat.
Dnyanoba assaulted with stick on the leg. Then she
proceeded to village. Accused persons after
assaulting as such, also proceeded towards
village.
. PW-12 Urmilabai further deposed that, as
the accused proceeded towards village, she also
started. When she reached at her house, she saw
that stone pelting was going on their house. As
the stone pelting was going on, hence she did not
go to her house. Then she went to one Dadarao
Mundhe to whom she reported the incident happened
in the field and earnestly requested him to
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accompany with her as accused also beat her
husband. Accordingly, Dadarao came along with her
to her house. Her husband was lying down in the
house. He made arrangement for taking her husband
for medical treatment. Accordingly, her husband
was taken to S.T. Bus. She also accompanied with
her husband. So also Dahiphale constable
accompanied them.
. During the course of her cross-
examination by the counsel for accused No.1, PW-12
Urmilabai stated that she did not know the details
of dispute over the land between them. She did not
know anything about fragmentation and
consolidation. She has stated in her statement
before the police that, dispute was going on
between her family and family of accused on the
cause of agricultural land. Vithalrao did not
provide information to the police in respect of
fragmentation, consolidation, civil suit and stay
order. Field of accused persons is at a distance
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of two fields away from her house in the field.
They were plucking cotton at a distance of about
15 to 20 ft. from the residential house in the
field where Bharat was taking rest. She herself
and Padminibai were plucking cotton on the same
portion of the land. Vimalbai was also with them
plucking the cotton. She herself, Padmini, Vimal
and Prayagbai started going together on hearing
the hue and cry. Padminibai was little ahead of
three of them. Bharat also reached near Shatrughan
along with them, simultaneously. The road passing
adjacent to their field goes to village
Pimpaldari, Anter-veli, Selmoha etc. The said
bullock-cart way passes through the field of
Gangaram. The cattle-shed in the field of the
accused had no door.
. PW-12 Urmilabai further stated that,
towards the village side, accused first proceeded
and then she followed them. In the fields, by both
the sides of the road leading to village
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Pimpaldari, the respective land owners were
working. While going towards her house, she was
shouting and weeping. She further stated that when
she herself and Dadarao reached to her house, the
door of her house was open. Police had just
reached ahead of them at her house. She had talk
with the police and she informed the police that
her two family members were killed in the field.
She denied that there was dispute between Shriram
and Laxman on one hand and Bharat and Shatrughan
on the other hand, on the cause of partition of
landed property. She denied that Bharat and
Shatrughan were demanding partition from Shriram
and Laxman, to which Shriram and Laxman were
resisting. She further denied that, on the day of
incident, Shiram and Laxman came to the field and
wanted to take the agricultural produce along with
them, and Bharat and Shatrughan resisted them to
give agricultural produce unless property was
partitioned and on that cause quarrel took place,
during which Bharat and Shatrughan sustained
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injuries and died.
. PW-12 Urmilabai further stated that, she
has stated in her statement before the police
that, Govind Kendre, Dnyanoba Kendre and Balaji
Kendre all of a sudden came there and all of a
sudden inflicted blow with an axe on the head of
Shatrughan and Govind Kendre inflicted blows with
an axe. She was unable to assign any reason for
such omissions in her police statement dated 3rd
January, 1995. She has stated in her statement
before police that, multiple fractures were caused
to the leg of Shatrughan. She was unable to assign
any reason for such omissions in her police
statement. The defence has further brought on
record certain omissions in her police statement.
. During the course of her cross-
examination by the counsel for accused Nos.2
and 3, PW-12 Urmilabai stated that after the
incident at residential house, when she returned
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to her house along-with Dadarao, her husband
Laxman was lying down on the cot on which quilt
was laid. Serious injury was caused to the head of
Laxman, from which blood was oozing and spread on
the quilt which was on the cot. As it was
bleeding, in order to stop such bleeding, she
poured kerosene oil in the injury and then tied
injury with pant. Despite her aforesaid treatment
bleeding did not stop and the same continued till
she reached in the hospital. During the process of
tying injury, Phad Jamadar was present near her
and Laxman. The blood also spread on the clothes
of Laxman. The pant with the help of which injury
was tied was also blood stained. At the S.T. Stand
of Pimpaldari, waiting for the bus, she had taken
head of Laxman on her lap. She further stated that
from the time of her return to the house till she
started for Gangakhed for treatment of her
husband, one hour passed. When she herself, her
husband and police constable Dahiphale started by
the bus for Gangakhed, her Bhaya Shriram was also
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with them in the same bus.
. PW-12 Urmilabai further stated that,
while they four female members were plucking
cotton, they heard the shouts of Shatrughan and
then on hearing the cries, they started towards
that direction. The cotton crop standing in the
field where they were plucking the cotton, was of
the height upto neck to head level. When they
reached on the spot, they saw that Shatrughan was
lying down on the ground. Thereafter they all four
females started shouting loudly and on hearing
their shouts, Bharat came running to the spot. She
again said that Bharat reached to the spot
simultaneously with them. After the dispute was
over, when she started towards the village, she
was alone. Thereafter she did not return to the
field.
45. We have discussed the evidence of
Urmilabai (PW-12) in detail. The finding recorded
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by the trial Court that she did not know details
about the civil dispute and discussed about other
minor contradictions, omissions and improvements
in her evidence and recorded the finding that the
prosecution has not proved her presence on the
spot of incident, which are contrary to the
evidence brought on record by the prosecution.
46. As already observed, there is sufficient
evidence brought on record by the prosecution in
the nature of evidence of Padminibai (PW-1) and
Vimalbai (PW-11). Their evidence corroborates with
each other and gets sufficient corroboration from
the medical evidence, and therefore we need not
search for any other evidence. However, evidence
of Urmilabai (PW-12) also lends support to the
prosecution case. The Supreme Court in the case of
Mukesh and another vs. State (NCT of Delhi) and
others (supra), in Paras 86 to 89 of the Judgment,
held as under:
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86. In this context, we may fruitfully
reproduce a passage from State of U.P. v.
M.K. Anthony56: (SCC p. 514, para 10)
"10. While appreciating the evidence of
a witness, the approach must be whether
the evidence of the witness read as a
whole appears to have a ring of truth.
Once that impression is formed, it is
undoubtedly necessary for the court to
scrutinise the evidence more
particularly keeping in view the
deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole
and evaluate them to find out whether
it is against the general tenor of the
evidence given by the witness and
whether the earlier evaluation of the
evidence is shaken as to render it
unworthy of belief. Minor discrepancies
on trivial matters not touching the
core of the case, hyper-technical
approach by taking sentences torn out
of context here or there from the
evidence, attaching importance to some
technical error committed by the
investigating officer not going to the
root of the matter would not ordinarily
permit rejection of the evidence as a
56 (1985) 1 S.C.C. 505
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whole. ..."
87. In Harijana Thirupala v. Public
Prosecutor57, it has been ruled that: (SCC
p. 476, para 11)
"11. ... In appreciating the evidence
the approach of the court must be
integrated not truncated or isolated.
In other words, the impact of the
evidence in totality on the
prosecution case or innocence of the
accused has to be kept in mind in
coming to the conclusion as to the
guilt or otherwise of the accused. In
reaching a conclusion about the guilt
of the accused, the court has to
appreciate, analyse and assess the
evidence placed before it by the
yardstick of probabilities, its
intrinsic value and the animus of
witnesses."
88. In Ugar Ahir v. State of Bihar58, a
three-Judge Bench held: (AIR p. 279, para
6)
57 (2002) 6 S.C.C. 470
58 A.I.R. 1965 S.C. 277
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"6. The maxim falsus in uno, falsus in
omnibus (false in one thing, false in
everything) is neither a sound rule of
law nor a rule of practice. Hardly one
comes across a witness whose evidence
does not contain a grain of untruth or
at any rate exaggerations, embroideries
or embellishments. It is, therefore,
the duty of the court to scrutinise the
evidence carefully and, in terms of the
felicitous metaphor, separate the grain
from the chaff. But, it cannot
obviously disbelieve the substratum of
the prosecution case or the material
parts of the evidence and reconstruct a
story of its own out of the rest."
89. In Krishna Mochi v. State of Bihar59,
the Court ruled that: (SCC pp. 104-05, para
32)
"32. ... The court while appreciating the
evidence should not lose sight of these
realities of life and cannot afford to
take an unrealistic approach by sitting
in an ivory tower. I find that in
recent times the tendency to acquit an
accused easily is galloping fast. It is
59 (2002) 6 S.C.C. 81
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very easy to pass an order of acquittal
on the basis of minor points raised in
the case by a short judgment so as to
achieve the yardstick of disposal. Some
discrepancy is bound to be there in
each and every case which should not
weigh with the court so long it does
not materially affect the prosecution
case. In case discrepancies pointed out
are in the realm of pebbles, the court
should tread upon it, but if the same
are boulders, the court should not make
an attempt to jump over the same. These
days when crime is looming large and
humanity is suffering and the society
is so much affected thereby, duties and
responsibilities of the courts have
become much more. Now the maxim "let
hundred guilty persons be acquitted,
but not a single innocent be convicted"
is, in practice, changing the world
over and courts have been compelled to
accept that "society suffers by wrong
convictions and it equally suffers by
wrong acquittals". I find that this
Court in recent times has
conscientiously taken notice of these
facts from time to time. In Inder
Singh60, Krishna Iyer, J. laid down
60 (1978) 4 S.C.C. 161
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that: (SCC p. 162, para 2)
'2. ... Proof beyond reasonable doubt
is a guideline, not a fetish and
guilty man cannot get away with it
because truth suffers some
infirmity when projected through
human processes.'
In State of U.P. v. Anil Singh61, it was
held that a Judge does not preside over a
criminal trial merely to see that no
innocent man is punished. A Judge also
presides to see that a guilty man does not
escape. One is as important as the other.
Both are public duties which the Judge has
to perform."
47. Now, regarding the second part of
incident which had taken place in the house of
PW-13 Laxman, we would like to discuss the
evidence of PW-13 Laxman Vithalrao Nirdunde. PW-13
Laxman Nirdunde deposed that he himself, Shiram,
their wives, children and their parents were
residing in the house in village Pimpaldari Bharat
61 1988 Supp. S.C.C. 686
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and Shatrughan, their wives and children were
residing in the house in the field. It is Survey
No.198, ad-measuring six acres. Ground-nut, grams,
cotton and wheat crop were standing in the field.
The Survey Number of the land of Gangaram is also
198. The total area of Survey No.198 was 24 acres.
During the implementation of consolidation and
fragmentation scheme, 13 acres land from Survey
No.198 was detached and then consolidated to some
other Survey Number. Against such decision,
Gangaram filed case, claiming 6 acres land from
them from Survey No.198. Then his family members
filed civil suit in the Civil Court at Gangakhed.
Injunction was issued in their favour and against
Gangaram by Civil Court.
. PW-13 Laxman Nirdunde further deposed
that, incident took place about 3 years and 3
months prior to recording his evidence. On that
day, he himself, Shriram, their parents were
present at their house. He was sitting in front of
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his grocery article shop, in the "Dhalaj" (court-
yard). It was about 1.00 to 1.30 p.m. When he was
so sitting, Govind, Balaji and Dnyanoba came to
his house with axe, stick and Katti in their
hands. They abused him by saying "Kumbhardya".
Govind had an axe in his hand wearing half-Chaddi
and banyan of white colour and chocolate coloured
Chaddi. Balaji had on his person white banyan and
snuff coloured Chaddi. Balaji had Katti in his
hand. Dnyanoba was wearing blue coloured banyan
and Chaddi and he had stick in his hand. Accused
Balu inflicted blow with Katti on his head. He was
sitting in the court-yard of his residential
house. After so assaulting him, accused started
pulling him out of the house. Savitribai, his
brother's wife came near him and rescued him and
shut the door of the house from inside. Then stone
pelting was started from near the house of Ganpati
Kendre by climbing on the roof of house of Ganpati
Kendre. Thereafter, his wife came to the house
from the field. He was conscious. His wife
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reported him that, Govind, Dnyanoba and Balu
killed Bharat and Shatrughan in the field.
Thereafter, he was taken for medical treatment at
Gangakhed.
. He further deposed that he would be able
to identify the weapons and clothes on the persons
of accused persons. Katti (Article No.20) before
the Court shown to him was the same. Stick and axe
( Article Nos.19 and 21) shown to him are also the
same. Chaddi (Article No.23) and Banyan (Article
No.22) belonged to accused Govind. Article Nos.26
and 27 are the clothes of Dnyanoba. Articles
Nos.24 and 25 are the clothes of Balaji.
. During the course of his cross-
examination by the counsel for accused No.1,
PW-13 Laxman Nirdunde stated that, besides his
family members, Ram Nivrutti and Ram Madhav Mundhe
are other sharers in Survey No.198. The claim of
Gangaram before the Consolidation Officer was
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allowed, and decided in favour of Gangaram. The
dispute restricted to the office of Consolidation
Officer and in the Court. His family members and
Gangaram had no dispute with northern side land
owners namely Babu, Trimbak, Sudam and Ankush, and
eastern side land owners namely Maroti and
Ganpati. Ram Nivrutti and Ram Madhav Mundhe had no
dispute with them. Ram Nivrutti had dispute with
Gangaram. He was unable to say area of the lands
of Ram Nivrutti and Ram Madhav, the other holders
of the land in Survey No.198. Ram Nivrutti's land
was vacant and there was ground nut crop in the
field of Ram Madhav. He was unable to say whether
on that day ground nut crop in the field of Ram
Madhav Mundhe was being watered by Ram. He further
stated about the details of the crops in the
field. The process of plucking cotton from the
land by the side of the well was in progress. He
denied that he himself and Shriram were claiming
that they should be allowed to take agricultural
produce stored in the house at the field at home,
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for which Bharat and Shatrughan were opposing. He
denied that on the day of incident, they wanted to
bring the agricultural produce from the field to
the house and Bharat and Shatrughan opposed the
same by saying that unless property was
partitioned and given to them, they would not
allow him and Shriram to take the agricultural
produce. He further denied that on the said cause
fight took place between the brothers and in that
fight, Bharat, Shatrughan and he himself sustained
injuries.
. PW-13 Laxman Nirdunde further stated that
his statement was recorded by the Magistrate on
2nd January, 1995. He has stated in his statement
before the Magistrate that after beating him,
accused pulled him outside the house, and that
Savitrabai intervened and rescued him from accused
persons and then she closed the door of the house
from inside, and that accused climbed on the roof
of the house of Ganpati Kendre and from there
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accused pelted stones, and that his wife informed
him that accused Nos.1 to 3 killed Bharat and
Shatrughan. He was unable to assign any reason for
such omissions in his statement before the
Magistrate. He has stated in his statement before
the Magistrate that accused Govind had axe in his
hand and Govind wore white banyan and chocolate
coloured Chaddi, and that accused Balaji had Katti
in his hand and he wore white banyan and snuff
coloured Chaddi, and that accused Dnyanoba had
stick in his hand and he wore blue coloured banyan
and Chaddi. He was unable to assign reasons for
such omissions in his statement before the
Magistrate. He further stated that police did not
show him the clothes from the person of the
accused seized by the Police after seizure till
the date of recording of his evidence. He denied
that clothes and weapons before the Court are not
of the accused.
. During the course of his cross-
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examination by the counsel for accused Nos.2
and 3, PW-13 Laxman Nirdunde stated that their
residential house in village Pimpaldari is situate
on the main road of village Pimpaldari. He
understands the difference between Chaddi and
underwear (Jangya). Article Nos.22, 24 and 26 were
shown to him. He denied that those were underwears
(Jangya) and not Chaddi. Prior to the incident, at
any time he had not seen accused Nos.1 to 3 on
Jangya on their person, or such Articles before
the Court. Articles like Article Nos.22, 24 and 26
before the Court, are available in the open
market. In every house of agriculturist, stick,
Katti and an axe are available. There is no
special identification marks on the clothes
Article Nos.22, 24 and 26, and sticks, Katti and
axe before the Court. The house of Ganpati Kendre
is not visible after closing the door of his house
from inside the house.
. PW-13 Laxman Nirdunde further stated
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that, their residential house faces towards east.
To the east of their house, there is temple of
Motiram Maharaj. The temple is not visible by
standing in the door of their house. Even such
temple is not visible if one comes from the road
in front of their house. Even if loud shouts are
raised from in front of their house, such loud
shouts are not audible from temple. He further
stated about the details of other houses near his
house. He stated that after attack, he himself or
his family members did not shout for the help.
Stone pelting was made after they closed the door
of their house from inside. There was heavy
bleeding from the head after receiving beating to
the head. He was not made to sleep on the cot. He
was sitting inside the house resting the wall. He
was resting to the wall till he started going to
Gangakhed. After receiving injury to his head,
till he started for Gangakhed for medical
treatment, he was conscious. After reaching at
Gangakhed, from S.T. Stand at Gangakhed they hired
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auto-rickshaw and went in front of police station
and parked auto-rickshaw on the road for a while.
His wife went in the police station, reported the
incident and then police came near auto-rickshaw
and then they went for medical treatment. For that
night, he was admitted in the hospital and on next
day, he was referred to Ambejogai hospital.
48. The second part of the incident had taken
place in the house of PW-13 Laxman. Prosecution
witnesses in detail, have stated that after the
incident of killing Shatrughan and Bharat, accused
proceeded towards the village and then they made
murderous attack on Laxman. Since Laxman (PW-13)
himself was examined by the prosecution, we have
discussed his evidence in detail. It clearly
emerges from his evidence that the accused abused
him by saying "Kumbhardya". He deposed that Govind
had an axe in his hand, Balaji had Katti in his
hand and Dnyanoba had stick in his hand. As
already discussed, he had stated about the manner
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in which he was assaulted. We have already
discussed the evidence of medical office PW-17
Manohar Ghule, wherein he deposed that on medical
examination of Laxman, he found five injuries on
the person of Laxman. It appears that Laxman was
examined by PW-17 on the day of incident itself at
about 5.15 p.m. PW-17 deposed that injury No.1 was
grievous in nature, caused by hard and sharp
object. Injury Nos.2 to 5 were caused by hard and
blunt object. They were simple in nature. He also
observed that age of injury was within 12 hours.
Therefore, the evidence of PW-13 Laxman, who was
injured witness, gets complete corroboration from
the evidence of medical officer PW-17 Manohar
Ghule and therefore apart from the evidence of
other witnesses who supported the version of
Laxman, the evidence brought on record by the
prosecution is sufficient to hold that the accused
tried to kill Laxman. It has been brought on
record that thereafter Laxman was taken for
medical treatment at Gangakhed and from there, he
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was referred to Medical College, Ambejogai for the
treatment of head injury. Though some omissions
are brought on record by the prosecution in the
evidence of PW-13, same are minor and
insignificant in nature and would not affect core
of the prosecution case.
49. We have also referred to the evidence of
other prosecution witnesses who acted as panch,
however it appears that some of them turned
hostile.
50. The prosecution case also gets support
from the evidence of PW-9 Laxman Phad, who was
police constable and visited the spot of incident
in the agricultural field. His evidence clearly
points out and suggested the spot of incident of
murder of Shatrughan, Bharat and assault on
Padminibai (PW-1) and Vimalbai (PW-11) by the
accused was in the agricultural filed of the
deceased. We have already discussed his evidence
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in detail and same supports the prosecution case
on various aspects.
51. Though the learned senior counsel
appearing for the Respondents had made serious
endeavour to point out the improvements, omissions
and contradictions in the evidence of Padminibai
(PW-1), Vimalbai (PW-11), Urmilabai (PW-12) and
also Laxman (PW-13), in our opinion those
contradictions, omissions and improvements are not
of the substantial nature which would affect the
core of the prosecution case. The evidence of
Padminibai and Vimalbai who are the injured
witnesses, inspires full confidence and gets
corroboration from the medical evidence. Their
evidence corroborates with each other. The
evidence of Urmilabai (PW-12) also lends support
to the evidence of PW-1 Padminibai and PW-11
Vimalbai, so far incident of murder of Shatrughan
and Bharat in the agricultural filed is concerned.
The evidence of PW-13 Laxman about the incident
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which had taken place in his house coupled with
the medical evidence is sufficient to hold
Respondents responsible for attempt to murder
Laxman. The evidence of Urmilabai (PW-12) lends
support to the evidence of Laxman (PW-13). It is
true that some prosecution witnesses to the
panchnamas turned hostile and also there is no
assistance from the C.A. report to the prosecution
case. But as already observed, evidence brought on
record by the prosecution in the nature of eye
witnesses and the medical evidence is sufficient
to hold that the Respondents-accused were
responsible for the murder of Shatrughan and
Bharat and attempt to commit murder of Laxman and
also for assaulting Padminibai (PW-1) and Vimalbai
(PW-11). The prosecution has proved beyond
reasonable doubt that the Respondents-accused
killed Shatrughan and Bharat and caused injuries
to Padminibai and Vimalbai during the course of
assaulting to Shatrughan and Bharat, and
thereafter proceeded to village and forcibly
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entered in the house of Laxman and attempted to
kill Laxman.
52. The evidence brought on record by the
prosecution shows that, murder of Shatrughan and
Bharat was committed by the accused with brutality
and exceptional violence, and they further
attempted to kill Laxman with determined mind with
an intention to finish the entire family of
deceased and his brothers.
53. We find considerable force in the
argument of learned A.P.P., assisted by Advocate
Kedar, that the family of deceased hails from
minority community i.e. potter and there is only
one house of them in the village Pimpaldari. It
has also come in the evidence of Laxman that
accused uttered word "Kumbhardya" (person from
potter community) to him. It is argued by the
A.P.P. that the deceased family belongs to
minority community, and in the entire village it
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is single family from potter community, and with a
view to finish said family, accused belonging to
influential community having sizable population in
the village, tried to dominate and made serious
attempt to finish the family of deceased, and they
substantially succeeded in it.
54. In the light of discussion in foregoing
paragraphs, we hold that the findings recorded by
the trial Court are totally perverse and view
taken by the trial Court was not possible. There
is total miscarriage of justice and Judgment and
order of acquittal of accused passed by the trial
Court is clearly unreasonable and unsustainable,
since over-whelming evidence of injured eye
witnesses, other witnesses and also medical
evidence brought on record by the prosecution is
unjustifiably disbelieved and discarded, and under
the afore-stated compelling reasons the impugned
Judgment and order deserves to be quashed and set
aside and the accused-Respondents are liable to be
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convicted and sentenced for the offences with
which they were charged by allowing the Appeal. In
the result, we pass the following order:
O R D E R
(I) The Criminal Appeal is allowed. (II) The Judgment and order dated 2nd May, 1998, passed by the Additional Sessions Judge, Parbhani in Sessions Trial No.112 of 1995, thereby acquitting Respondent Nos.1 to 3/original accused Nos. 1 to 3 for the offences punishable under Sections 302, 307, 324, 323, 452 and 427 read with Section 34 of the Indian Penal Code, is quashed and set aside.
(III) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 02:28:51 ::: cria400.98 139 s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre are convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/- each and in default to suffer rigorous imprisonment for six months.
(IV) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre are further convicted for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten (10) years and to pay a fine of Rs.3000/- each and in default to suffer rigorous imprisonment for four months. ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 02:28:51 :::
cria400.98 140 (V) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre are further convicted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three (3) years and to pay a fine of Rs.2000/- each and in default to suffer rigorous imprisonment for three months. (VI) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre are further convicted for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 02:28:51 ::: cria400.98 141 (1) year and to pay a fine of Rs.1000/- each and in default to suffer rigorous imprisonment for three months. (VII) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre are further convicted for the offence punishable under Section 452 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four (4) years and to pay a fine of Rs.3000/- each and in default to suffer rigorous imprisonment for four months. (VIII) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre are further convicted for the offence punishable ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 02:28:52 ::: cria400.98 142 under Section 427 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two (2) years and to pay a fine of Rs.2000/- each and in default to suffer rigorous imprisonment for three months. (IX) All the substantive sentences shall run concurrently.
(X) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre would be entitled to set off under Section 428 of the Code of Criminal Procedure. (XI) Accused No.1 - Govind s/o Gangaram Kendre, accused No.2- Balaji s/o Gangaram Kendre and accused No.3 - Dnyanoba s/o Gangaram Kendre shall ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 02:28:52 ::: cria400.98 143 surrender to their bail bonds immediately before the Sessions Judge, Parbhani. The Sessions Judge, Parbhani to ensure that, accused shall surrender immediately to undergo sentence recorded as above against them and send the compliance report to that effect, to this Court.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/AUG17 ::: Uploaded on - 23/08/2017 ::: Downloaded on - 24/08/2017 02:28:52 :::