Bombay High Court
The State Of Mah.Thr.Pso Wardha vs Shamrao Shrawan Khobragade And 6 Others on 2 July, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Apeal784.04 + 208.05.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.784 OF 2004
WITH
CRIMINAL APPEAL NO.208 OF 2005
CRIMINAL APPEAL NO.784 OF 2004
1] Vandish s/o Sudhakar Wankhede,
Aged about 24 years.
2] Vilas s/o Ganpatrao Gote,
Aged about 30 years.
3] Ajay s/o Shamraoji Khobragade,
Aged about 22 years.
4] Shamrao s/o Shrawan Khobragade,
Aged about 53 years.
5] Madhukar s/o Vishwanath Meshram,
Aged 29 years.
6] Pralhad s/o Bhaduji Ramteke,
Aged about 39 years.
7] Hemraj s/o Sabhaji Nikose,
Aged about 26 years.
8] Sambhaji s/o Dewaji Nikose,
Aged about 66 years.
9] Sau. Suman w/o Vitthalrao Patil,
Aged about 51 years.
10] Sau. Vachhala w/o Sambhaji Nikose,
Aged about 51 years,
All Labourers, Residents of Pulai,
Tahsil & District - Wardha. .. APPELLANTS
::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 :::
Apeal784.04 + 208.05.odt 2
VERSUS
The State of Maharashtra.
Through P.S.O. Kharangna. .. RESPONDENT
..........
Shri Y.B. Mandpe, Advocate for the Appellants,
Shri S.D. Sirpurkar, APP for the Respondent-State.
..........
WITH
CRIMINAL APPEAL NO.208 OF 2005
The State of Maharashtra,
Through PSO, Police Station, Kharangana,
Tahsil- Arvi, District-Wardha. .. APPELLANT
VERSUS
1] Shamrao s/o Shrawan Khobragade,
Aged about 52 years,
(Ori. Accused No.4.)
2] Madhukar s/o Vishvanath Meshram,
Aged about 28 years,
(Ori. Accused No.5.)
3] Pralhad s/o Bhaduji Ramteke,
Aged about 38 years,
(Ori. Accused No.6.)
4] Hemraj s/o Sambhaji Nikose,
Aged about 25 years,
(Ori. Accused No.7.)
5] Sambhaji s/o Dewaji Nikose,
Aged about 65 years,
(Ori. Accused No.8)
::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 :::
Apeal784.04 + 208.05.odt 3
6] Sau. Suman s/o Vitthalrao Patil,
Aged about 50 years,
(Ori. Accused No.9.)
7] Sau. Vachhala w/o Sambhaji Nikose,
Aged about 50 years,
(Ori. Accused No.10.)
All R/o. Pulai,
Tahsil and District-Wardha. .. RESPONDENTS
..........
Shri S.D. Sirpurkar, APP for the Appellant-State,
Shri Y.B. Mandape, Advocate for the Respondents.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : JULY 02, 2018.
ORAL JUDGMENT
1] Both these appeals are decided together by this common judgment as they arise out of same offence. Criminal Appeal No.784/2004 is preferred by appellant nos.1 to 10 against the State, whereas Criminal Appeal No.208/2005 is preferred by the State against the appellants. In Criminal Appeal No.784/2004, the appellants (hereinafter referred to as 'the accused') preferred an appeal against the judgment and order dated 16.12.2004 delivered by the learned 2nd Ad- hoc Additional Sessions Judge, Wardha in Sessions Trial No.8/2003, whereby the learned Additional Sessions Judge has convicted accused nos.1 Vandish Wankhede and Vilas Gote for the offence punishable under ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 4 Section 307 r/w 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years each and to pay a fine of Rs.500/- each, in default to suffer rigorous imprisonment for one month. The accused Vandish Wankhede, Vilas Gote, Ajay Khobragade, Madhukar Meshram, Pralhad Ramteke and Hemraj Nikode were convicted for the offence punishable under Section 148 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for one year each and to pay a fine of Rs.200/- each, in default to suffer rigorous imprisonment for 15 days each. The accused nos.1 to 10 were convicted for the offence punishable under Section 147 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three months each and to pay a fine of Rs.100/-, in default, to suffer rigorous imprisonment for eight days. 2] Since the learned 2nd Ad-hoc Additional Sessions Judge has acquitted accused Ajay, Madhukar, Pralhad and Hemraj of the offence punishable under Section 307 r/w 149 of the Indian Penal Code, therefore, the State has preferred the appeal against those accused by preferring Criminal Appeal No.208/2005, whereas the accused who have been convicted by the learned Additional Sessions Judge, they have challenged aforesaid conviction.
::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 5 3] The prosecution case, in brief, can be summarised as under :
The complainant Dharmendra s/o Mangalrao Sukhdeve, his brother and accused persons were the resident of Pulai, Tahsil and District-Wardha. The dispute was going on between the complainant and the accused persons on the ground that the complainant's father was playing witchcraft on the sister of accused no.1 Vandish. On the date of the incident i.e. on 19.10.2002 at about 6.00 pm, the complainant Dharmendra Sukhdeve (PW-1) along with his brother Vijay Sukhdeve (PW-3), Dilip Nanaware (PW-5) and Vijay Khobragade were proceeding to Arvi by his own auto-rickshaw for purchasing the doors for his house. After purchasing the doors at Arvi, when they reached Pulai Bus Stand, between 10.30 to 11.00 pm, accused no.1 Vandish asked him to stop the auto-rickshaw and dragged PW-1 Vandish down from the auto-rickshaw by abusing him "Kare Madarchoda" and assaulted him with an axe on his hand. When PW-1 Vandish tried to avoid the blow, he sustained the injury on his left palm. At that time, Vilas Gote, Sambha Nikose, Sudhakar Wankhede, Ajay Khobragade, Madhu Meshram, Pralhad Ramteke, Hemraj Nikose, Samrao Khobragade and two ladies namely Suman Vitthal Patil and Vachchhi Sambha Nikose rushed at the place of the incident. They were armed with crow-bar, axe and sticks. All of them attacked the complainant and the persons who accompanied him. In the meantime, the incident was reported by one Dilip Narnaware to the ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 6 mother of PW-1 namely Sau. Baby Sukhdeve and father Mangal Sukhdeve. Therefore, they rushed at the place of incident. They were also assaulted by the accused persons, due to which, mother of PW-1 sustained injury on her head and father sustained injury on his forehead, so also brother of PW-1 Vijay sustained injury on his chest. It is further the case of the prosecution that all the accused persons attacked the complainant and his associates at the time of the incident. PW-1 then reported the incident to the Police by lodging his complaint (Exh.54).
PW-12 PSI Choube recorded the complaint and on the basis of it he registered the offence vide Crime No.64/2002. He referred the injured persons to the hospital for their medical examination and treatment. PW-12 then visited the place of incident and recorded the spot panchanama. From the place of incident, he took the charge of the articles i.e. wooden plank, while dupatta, two wooden pieces, crow bar, iron rod, blood smeared earth, plain earth, two sticks, one slipper, one chappal, chilly powder, bamboo stick, palas stick and one printed cotton rumal of red colour under seizure panchanama (Exh.105). PW-12 arrested all the accused.
On 21.10.2002, at the instance of accused no.1 Vandish, an axe was taken charge from the field of Rambhau in Pulai Shiwar under panchanama (Exh.122). The memorandum panchanama was drawn vide ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 7 Exh.123 and the seizure panchanama of the axe was recorded at Exh.124. The statements of the relevant witnesses were recorded by PW-12 and after the completion of investigation, the charge-sheet came to be filed in the court of Judicial Magistrate, First Class. The case was committed to the Court of Sessions. The learned trial Judge framed the charge and on analysis of the evidence and after hearing both sides, the learned trial Judge has delivered the judgment as aforesaid. 4] I have heard Shri Y.B. Mandpe, the learned counsel for the appellants-accused as well as Shri S.D. Sirpurkar, the learned Additional Public Prosecutor for the respondent-State.
5] The learned counsel for the accused vehemently argued that the learned trial Judge has not considered the evidence led by the prosecution witnesses in its right perspective and has erroneously convicted the accused persons. He contended that the testimony of the prosecution witnesses is full with improvements which go to the root of the prosecution case. He further submitted that although as per the testimony of the witnesses, two axes were involved in the alleged offence, however, only one axe is recovered at the instance of accused no.1 Vandish and the said recovery cannot be termed as discovery as the said axe was taken charge from the open field which was accessible to one and all. ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 8 The learned counsel for the accused contended that the judgment and order passed by the learned Additional Sessions Judge needs to be quashed and set aside.
6] As against this, the learned Additional Public Prosecutor canvassed that the judgment passed by the learned Additional Sessions Judge is illegal and perverse, inasmuch as the learned Additional Sessions Judge has not considered the evidence led by the prosecution in its right perspective in the sense that it was not considered that the evidence from the prosecution witnesses corroborates with each other on material aspect. He further contended that out of ten accused, only two were convicted under Section 307 of the Indian Penal Code and other accused were acquitted under the said provisions. He submitted that thus the judgment passed by the learned Additional Sessions Judge is illegal and perverse.
7] In order to verify the rival contentions of both the sides, it would be appropriate to go through the evidence led by the prosecution. In order to substantiate its case, the prosecution heavily relied on the testimony of PW-1 Dharmendra Sukhdeve, PW-2 Mangal Sukhdeve, PW-3 Vijay Sukhdeve, PW-5 Dilip Nanaware and PW-11 Bebi Sukhdeve, who are the injured witnesses, the Medical Officers PW-13 Dr. Madhuri ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 9 Gujarkar and PW-14 Dr. Yogini Katkar and the Investigating Officer PW-12 Surajkishor Choube. The prosecution has not examined any independent witness on the point of incident.
8] The testimony of PW-1 Dharmendra Sukhdeve shows that on 19.10.2002 at about 10.30 pm, he along with Vijay Khobragade, Dilip Nannaware and Vijay Sukhdeve reached near bus stop of village Pulai by his auto-rickshaw from Arvi. His auto-rickshaw stopped by accused no.1 Vandis and abused him as "Kare Madarchoda". Accused no.1 Vandish pulled PW-1 out of the auto-rickshaw. Accused no.1 then assaulted PW-1 by means of an axe on his neck and left palm. The brother of PW-1 namely Vijay got down from the auto-rickshaw and tried to catch hold Vandis, however, accused no.1 Vandis assaulted Vijay Sukhdeve by means of an axe on his head and chest. Then Vilas Gotey, Ajay Khobragade, Shamrao Khobragade, Pralhad Ramteke, Madhukar Meshram, Hemraj Nikose, Sambhaji Nikose, Vatchalabai Nikose and Sumanbai Patil came there. Accused Vilas Gote assaulted the brother of PW-1 by means of crow-bar. The accused Ajay Khobragade assaulted PW-1 on his head by means of Ubhari. Accused Shamrao Khobragade assaulted PW-1 and his brother by means of stick (zilpi). According to PW-1, Pralhad Ramteke assaulted him and his brother by means of stick.
Hemraj Nikose assaulted him and his brother by means of stick. ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 10 Sambhaji Nikose assaulted him and his brother by means of stick and other accused assaulted them by means of fist and kicks blows. PW-1 stated that in the meantime his parents arrived at that place. Accused no.1 Vandish assaulted his father by means of axe on his forehead, whereas his mother was assaulted by accused no.1 Vandish by an axe on her head. Accused Vilas Gote assaulted his mother and father by means of crow-bar, so also Sambhaji Nikose assaulted his parents by stick. PW-1 stated that his mother fell down. All the accused fled away.
PW-1 Dharmendra admitted in his cross-examination that a criminal case is pending against him, his brother, his parents and Dilip Nannware with regard to the same incident dated 19.10.2002 in Arvi Court. PW-1 further denied that he had beaten to accused no.1 Vandish on his head, so also accused Sudhakar and Vilas. He denied that they were holding an axe, iron tomy and sticks. Thereafter, accused no.1 Vandish went to Kharangana Police Station and accused Vilas, Sudhakar and Vandish were admitted in the hospital. Improvements were pointed out in the testimony of PW-1 to the effect that he was beaten by accused Vandish on his neck, Vijay got down from the auto-rickshaw and tried to catch Vandish, however, he was beaten by an axe on his head and chest, Dilip Nannaware ran away towards the house and other accused came there. His brother Vijay Sukhdeve was beaten by iron sabbal. PW-1 was beaten by Ajay by means of Ubhari. PW-1 Dharmendra and his brother ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 11 were beaten by zilpi by Shamrao, Pralhad Ram Ramteke has beaten them by means of sticks, Hemraj assaulted them by sticks, Sambhaji assaulted them by sticks, his parents were assaulted by accused no.1 Vandish by an axe on their heads, Vilas assaulted to PW-1's parents by crow-bar and Sambhaji Nikose assaulted to his parents. His mother fell down and on suspecting that she died, all the accused ran away. The testimony of PW-1 is full with improvements and discrepancies. His testimony shows that a cross complaint was lodged by the accused persons against the complainant and his family members. 9] The testimony of PW-2 Mangal Sukhdeve, who is the father of PW-1 Dharmendra, shows that on 19.10.2002 at about 10 to 10.30 pm, Dilip Nannaware came to his house and narrated about the assault to PW-1 Dharmendra, therefore, he along with his wife rushed towards the bus-stop. Vijay and Dharmendra were assaulted by accused Vandish by an axe. PW-2 Mangal tried to rescue them. However, accused no.1 Vandish assaulted his wife by an axe on her head. Accused Vilas was holding crow-bar and others were holding sticks. PW-2 was beaten by Vilas Gotey by the point of crow-bar. Accused No.1 Vandish abuses by saying "Madarchoda, Mazya Bahinila Jadu-Tona Keli". PW-2 along with his wife tried to rescue them. PW-2 stated that accused no.1 Vandish assaulted his wife by means of an axe on her head. Vilas Gotey was ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 12 holding crow-bar and others were holding sticks. PW-2 was assaulted by Vilas Gotey by means of crow-bar. Pralhad Ramteke, Sambhaji Nikose, Hemraj Nikose, Madhu Meshram, Vatchalabai, Sumanbai, Shamrao and Ajay Khobragade were all holding sticks. All the accused then fled away.
In cross-examination PW-2 denied that he along with his wife, Vijay, Dharmendra and Dilip Nanaware assaulted to accused no.1 Vandish, Vilas and Sudhakar. He further admitted that a case is pending against them in Arvi Court. An improvement was pointed out in the version of PW-2 that he noticed Vandish while assaulting to his sons Vijay and Dharmendra by an axe. He along with his wife tried to rescue the quarrel. His wife was beaten by Vandish by an axe. Vilas Gotey was holding crow-bar and remaining accused were holding sticks in their hands. PW-2 was assaulted by Vijay Gotey by the end of crow bar. Vandish abused "Madarchoda, Mazya Bahinila Jadu-Tona Kela". All these improvements were pointed out in the version of PW-2 which go to the root of the prosecution case.
10] The testimony of PW-3 Vijay Sukhdeve shows that on 19.10.2002 at about 10.30 to 11.00 pm, when he along with his brother Dharmendra, Dilip Nannaware and Vijay Khobragade were near the Pulai Bus Stop, at that time, accused Vandish stopped their auto-rickshaw and started abusing them by saying "Ka Re Madarchoda". Dharmendra was ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 13 pulled down from auto-rickshaw by Vandish and he started assaulting Dharmendra by an axe. Vilas Gotey, Sambhaji Nikose, Sudhakar Wankhede, Hemraj Nikose, Pralhad Ramteke, Shamrao Khobragade, Madhukar Meshram, Ajay Kbobragade, Sumanbai Patil and Vatchala Nikose were also started assaulting to him and his brother Dharmendra by means of crow-bar, axe, sticks and ubhari. Dilip Nannaware ran away towards the house and informed the incident to the parents of PW-3. His parents arrived at that place. Her mother requested Vandish not to beat her sons. However, she was assaulted by Vandish by an axe on her head. His father was assaulted by Vilas Gotey by means of crow-bar. His mother fell down on the earth and, thereafter, all the accused fled away.
PW-3 admitted in his cross-examination that since prior to the incident he was in cross terms with accused Vandish. He however denied that Vandish had lodged a report with regard to the assault against him, his father and his brother. He further stated that his father had lodged his private complaint before the learned Judicial Magistrate, First Class, Arvi against Vandish, Vilas Gotey etc. PW-3 stated that he does not know whether accused Vandish had sustained bleeding injury to his head and his clothes were stained with blood. He also denied that Vilas Gotey sustained injury. He further stated that he does not know whether Vandish, his father and Vilas Gotey were admitted in the hospital. Improvements were pointed out in his testimony to the effect that one of ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 14 the accused was holding Ubhari. His mother requested Vandish not to assault her sons. She was beaten by Vandish by an axe. His father was beaten by Vilas Gotey by crow-bar. His mother fell down on the earth. Vilas was holding a crow-bar. Many discrepancies were pointed out in the testimony of PW-3.
11] In the testimony of PW-5 indicates that on 19.10.2002 at about 10.30 to 11.00 pm, when they reached near the bus stop of Pulai, accused Vandish obstructed their auto-rickshaw and abused as "Kare Madarchoda". Dharmendra was beaten by Vandish by an axe. Vijay Sukhdeve got down from the auto and requested them by saying "Maru Naka Re". On noticing their quarrel, PW-5 ran away towards the house of Mangal Sukhdeve and informed the incident to him. Thereafter, PW-5 along with Bebibai Sukhdeve and Mangal Sukhdeve came to the place of incident. Bebibai requested "Maru Naka Re". Accused Vandish instigated Vilas Gotey by saying "May Ali Takre Kurhad". Vilas Gotey assaulted Bebibai by an axe on her head. She became unconscious. Thereafter, all the accused fled away.
In the cross-examination, PW-5 admitted that his statement was recorded after 2½ months from the date of the incident. Few improvements were pointed in his version to the effect that their auto- rickshaw was obstructed by accused Vandish and he has abused as ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 15 "Kare Madarchoda". Dharmendra was beaten by Vandish by an axe. Vijay got down from the auto-rickshaw. PW-5 gave an understanding to them by saying "Maru Naka Re". By shouting, he went to the house of Mangal and narrated that Vandish is beating Dharmendra and Vijay. He brought Mangal and Bebibai on the spot. Bebi requested as "Maru Naka Re - Maru Naka Re". Vandish instigated Vilas Gotey by saying "May Ali Tak Kurhad". Bebi was assaulted by Vilas Gotey by means of an axe on her head and she became unconscious and accused persons ran away noticing that Bebi died. All these improvements go to the root of the prosecution case and the version of PW-5 is doubtful. PW-5 denied that he along with other had beaten to Vandish and Vilas Gotey and also the father of Vandish when he came on hearing the shouts. He stated that he does not know whether Vandish had sustained bleeding injury to his head, so also Vilas Gotey and father of Vandish also sustained injuries. He denied that he has stated before the police that the villagers had rescued the quarrel. The said contradiction was marked as portion mark 'A' for identification. Thus the testimony of PW-5 is full with discrepancies. 12] The testimony of PW-11 Bebi Sukhdeve indicates that on the date of the incident at about 10.00 to 10.30 pm, Dilip Nannaware had been to her house and informed that Vandish Wankhede, Vilas Gotey and some other persons were beating to her sons Vijay and Dharmendra near ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 16 Pulai Bus Stand. She along with her husband, Suresh Patil and Dilip Nannaware went to the Bus Stop. Vandish Wankhede, Vilas Gotey, Shamrao Khobragade, Ajay Khobragade, Sambhaji Nikose, Hemraj Nikose, Madhukar Meshram, Pralhad Ramteke, Suman Patil and Vatchabai Nikose were assaulting her sons by means of sticks, fist and kicks blows. They were holding sticks, crow-bar, axe, iron bar. She tried to intervene the quarrel. However she was also assaulted by accused by means of sticks and fist blows. She was beaten by Vilas Gotey by means of an axe on her head. She sustained bleeding injury and therefore she fell down.
PW-11 started in her cross-examination that her statement was recorded by the police twice. She stated in her statement that there was a light on the spot. However, the said version did not find place in her statement recorded by the police. She admitted that a criminal case is pending against her and others in respect of the same incident. The improvements were also pointed out in her statement to the effect that she along with her husband, Suresh Patil and Dilip Nannaware went to the bus stop and Dilip Nannaware informed her that her sons were beaten by Vandish and others near bus stop, all the accused were beating to her sons by first and kicks blows and sticks and accused were holding sticks, iron bar and sabbal in their hands. She tried to intervene the quarrel, however, all the accused assaulted her by sticks and kicks and fist blows, ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 17 due to which she sustained bleeding injury. Further improvement was pointed out with regard to the effect that Dilip Nannaware and Suresh Patil were along with them on the spot. All the accused were holding sticks, iron bars and sabbal and they were beating by it, so also she was assaulted by the accused by fists blows. All these improvements were pointed out in her version. PW-11 denied that her husband had filed number of cases against the villagers. She had also filed a case against Vandish, Vilas, Sudhakar and others. According to her, many people gathered on the spot. She however denied that her sons were holding tomy and other weapons in their hands. She further denied that in darkness she received blow of tomy on her head. She also denied that since prior to the incident she was in cross terms with Vandish and accused nos.3 to 10 are relatives of Vandish.
13] The meticulous testimony of all the prosecution witnesses shows that there are many improvements made by them with regard to the incident. The testimony of these witnesses is not consistent on the point as to which accused was holding which weapon. There is also discrepancy in the testimony of the witnesses with regard to the fact as to which accused had assaulted which witness and by means of which weapon. PW-11 stated that she was assaulted by all the accused by means of fist and kicks blows and Vilas Gotey was assaulted her by ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 18 means of an axe on her head, whereas as per the testimony of PW-11 she was assaulted by Vilas Gotey by means of an axe on her head. However, as per the testimony of PW-5 accused Vandish was assaulted his mother by means of an axe on her head. Thus, there are discrepancies in the version of these witnesses with regard to the incident and the weapons used by the accused persons. If at all the testimony of witnesses is accepted, two axes were involved in the incident, one used by Vilas Gotey and other used by Vandish. However, there is recovery of only one axe in the crime in question. It is not clear as to which accused was holding which weapon at the time of the incident. Admittedly, the incident had taken place during night hours at about 10.30 pm. It is not clear from the evidence of the witnesses that there was sufficient light at the time of the incident. Even the spot panchanama does not throw any light on this aspect, but the testimony of all these witnesses also indicates that there was a cross case pending against them arising out of the same incident. It is the case of the defence, during the cross of the same incident, accused persons also received severe injuries, which clearly shows that there was free fight among the accused persons and the witnesses. It appears that there were two groups and between two groups, assault had taken place. Accordingly, the complainant and the witnesses, who were the accused persons in the cross case bearing Regular Criminal Case No.58/2003, decided by the learned Additional ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 19 Sessions Judge, Wardha on 16.12.2004, the complainant and the other witnesses were acquitted by the learned Additional Sessions Judge. It appears that the said complaint was earlier in point of time and that was in Crime No.63/2002. The prosecution has failed to examine any independent witness to throw light on the aspect of the alleged incident. It appears that the prosecution has tried to suppress the true genesis and the occurrence of the incident.
14] In the case of Lakshmi Singh .vs. State of Bihar, reported in 1997 (5) Scale 487, it is held that :
"Injuries on the person of the accused and one of them succumbed to the said injuries. The trial Court found that there was free fight between the two groups. There was no scope for convicting the members of one group under Sections 147 and 148, IPCode and for other substantive offences with the aid of Section 149. In such circumstances, the appellant can be made liable for their individual acts and, therefore, the conviction was not sustainable. The trial Court was not justified in convicting the appellant for rioting or for other offences with the aid of Section 149, IPCode."
15] The learned trial Judge should have considered the evidence led by the prosecution witnesses in its right perspective. The prosecution has failed to prove any of the charges against the accused persons. As regards the appeal by the State, I do not find any illegality or perversity in the judgment of the learned Additional Sessions Judge. Insofar as the ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 ::: Apeal784.04 + 208.05.odt 20 appeal against the conviction of the appellant nos.4 to 10 under section 307 of the Indian Penal Code is concerned, the following order is passed :
ORDER 1] Criminal Appeal No.784/2004 filed by the appellants-accused is allowed.
2] The judgment and order dated 16.12.2004 passed by the 2nd Ad-hoc Additional Sessions Judge, Wardha in Sessions Trial No.8/2003 is hereby quashed and set aside.
3] All the accused are on bail, their bail bonds shall stand cancelled.
4] Criminal Appeal No.208/2005 filed by the State of Maharashtra stands dismissed.
JUDGE Gulande ::: Uploaded on - 13/07/2018 ::: Downloaded on - 13/07/2018 23:47:22 :::