Bombay High Court
Shri Ishwar Khandu Patil (Abated) And ... vs The State Of Maharashtra on 3 November, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:23785-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 475 OF 2016
1. Shri Ishwar Khandu Patil
Age: 55 years, Occupation: Agriculture
[Appeal abated against him as per
order dated 24.07.2023]
2. Shri Umesh Ishwar Patil
Age: 25 years, Occupation: Agriculture
3. Shri Chandu Ishwar Patil
Age: 35 years, Occupation: Agriculture
All Residents of : At Mukti
Taluka and District Dhule
Presently in jail. ... Appellants
Versus
1. The State of Maharashtra
[At the instance of Shri Prithviraj
Pandit Patil, Age : 30 years,
Resident of : At Mukti,
Taluka and District Dhule]
Through Dhule Taluka Police Station,
Dhule, Taluka and District Dhule.
2. Kavita Samadhan Patil
Age : Major, Occu. : Household,
R/o. Mukti, Tq. Dhule, Dist. Dhule.
[R. No.2 added as per order dated
24.07.2023] ... Respondents
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WITH
CRIMINAL APPEAL NO. 490 OF 2016
1. Sunil @ Appa Nimba Patil
Age 32 years, Occu: Agriculturist,
2. Satish @ Yogesh Limba Patil
Age 32 years, Occu: Agriculturist,
Both residing at Mukti,
Tq. and Dist. Dhule. ... Appellants
[Ori. Accused Nos. 1 & 2]
Versus
1. The State of Maharashtra
2. Kavita Samadhan Patil
Age : Major, Occu. : Household,
R/o. Mukti, Tq. Dhule, Dist. Dhule.
[R. No.2 added as per order dated
24.07.2023] ... Respondents
.....
Mr. R. N. Dhorde, Senior Advocate i/by Mr. V. R. Dhorde, Advocate
for the Appellants in Criminal Appeal No. 475 of 2016.
Mr. A. B. Girase, Advocate h/f Mr. Tapan K. Sant, Advocate for the
Appellants in Criminal Appeal No. 490 of 2016.
Mr. S. D. Ghayal, APP for Respondent No.1-State in both Appeals.
Mr. P. S. Paranjape, Advocate for Respondent No.2 in both Appeals.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 26.10.2023
Pronounced on : 03.11.2023
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JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Appellants are convicts for commission of offence under
Sections 143, 147, 148, 302, 307, 323, 504, 506 r/w 149 of the
Indian Penal Code [IPC] in Sessions Case No. 87 of 2014 dated
04.07.2016 passed by learned Additional Sessions Judge, Dhule.
Original accused nos. 1 to 4 and 6 have preferred appeals bearing
Criminal Appeal Nos. 475/2016 and 490/2016 respectively.
2. Though two distinct appeals have been filed questioning
legality and maintainability of the judgment of conviction, as both
appeals are heard simultaneously and answered by learned APP on
one and the same day, appeals are dealt together by way of common
judgment.
PROSECUTION STORY IN BRIEF IS AS UNDER
3. Shorn of details, in brief, case of prosecution is that during
Ganpati festival of 2014, there was quarrel between accused party
and informant party on account of raising volume of the loudspeaker.
It is in such backdrop, case of prosecution is that, both sides were in
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cross terms. On 29.01.2014, accused named in the chargesheet came
on two motorcycles and in backdrop of above previous quarrel,
assault was made on Samadhan and Dattatraya causing them
grievous injuries. PW2 informant when intervened to pacify them, he
was beaten by fistiscuffs. Deceased Samadhan was declared dead on
examination and therefore, PW2 Pruthviraj, brother of Samadhan,
registered FIR which was investigated by PW10 P.I. Somwanshi and
on gathering sufficient evidence, in all 6 accused were chargesheeted
and tried by learned Additional Sessions Judge, Dhule, who, on
appreciating the oral and documentary evidence adduced by
prosecution, passed following order:
"1) The accused No.1 Sunil @ Appa Nimba Patil, accused
No.2 Satish @ Yogesh Nimba Patil, accused No.3 Ishwar
Khandu Patil, accused No.4 Umesh Ishwar Patil & accused
No.6 Samadhan @ Chandu Ishwar Patil all R/o Mukti, Tal
& Dist. Dhule, are hereby convicted u/s 235(2) of the Code
of Criminal Procedure for the offence punishable under
section 302 r/w/s. 149 of the Indian Penal Code and
sentenced to suffer life imprisonment and to pay a fine of
Rs.5,000/- (Rs.Five thousand only) each. In default of
payment of fine amount, they have to suffer rigorous
imprisonment for six (6) months each.
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2) The accused Nos. 1 to 4 & 6 are convicted u/s 235(2)
of the Code of Criminal Procedure for the offence
punishable under section 307 r/w/s. 149 of the Indian
Penal Code and sentenced to suffer life imprisonment and
to pay a fine of Rs.3,000/- (Rs. Three thousand only) each.
In default of payment of fine, they have to suffer rigorous
imprisonment for three (3) months each.
3) The accused Nos. 1 to 4 & 6 u/s 235(2) of the Code
of Criminal Procedure are convicted for the offence
punishable under section 143 of the India Penal Code and
sentenced to suffer rigorous imprisonment for six (6)
months each.
4) The accused Nos. 1 to 4 & 6 are convicted for the
offence punishable under section 147 of the Indian Penal
Code and sentenced to suffer rigorous imprisonment for six
(6) months each.
5) The accused Nos. 1 to 4 & 6 are convicted for the
offence punishable under section 148 of the Indian Penal
Code and sentenced to suffer rigorous imprisonment for
two years each.
6) The accused Nos. 1 to 4 & 6 are convicted for the
offence punishable under section 323 r/w/s 149 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for six (6) months each.
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7) The accused Nos. 1 to 4 & 6 are convicted for the
offence punishable under section 504 r/w/s. 149 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for one (1) year each.
8) The accused Nos. 1 to 4 & 6 are convicted for the
offence punishable under section 506 r/w/s. 149 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for three (3) years each.
9) As punishment for performing an unlawful assembly,
assaulting, committing murder and attempt to commit
murder of deceased Samadhan and injured Dattatraya
respectively, is already imposed against the accused,
therefore, separate punishment is not required to be
imposed for the offence u/s 130 p/u/s 177 of the Motor
Vehicles Act.
10) After depositing amount of fine, 50% amount out of
the fine may be given to the widow of deceased Samadhan
as compensation.
11) The above substantive sentences shall run
concurrently.
12) The accused Nos. 1 & 2 are in jail since 30/01/2014
onwards, accused Nos. 3 & 4 are in jail since 08/04/2014
and accused No.6 is in jail since 29/04/2014 onwards. They
are entitled for already undergone period as set-off under
section 428 of the Code of Criminal Procedure.
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13) The accused Nos. 1 to 4 & 6 are hereby acquitted vide
section 235(1) of the Code of Criminal Procedure for the
offence u/s 4 punishable under section 25 of the Arms Act.
14) Police Inspector of Dhule Taluka Police Station,
Dhule, is hereby directed to file separate charge against the
absconding accused No.5 Yogesh Nana Patil, R/o Mukti, Tal
& Dist. Dhule, whenever he is arrested.
15) Muddemal properties be sent to Dhule Taluka Police
Station, so as to enable them to produce it along with
separate charge sheet to be filed against the absconding
accused No.5 Yogesh Nana Patil, on his arrest as directed by
this Court.
Copies of this judgment be provided to all accused,
free of costs.
(Dictated and pronounced in open Court.)"
Thus accused nos. 1 to 4 and 6 are convicted.
SUBMISSIONS
4. Learned senior Advocate Shri R. N. Dhorde representing
accused nos. 4 and 6 (appellant accused no.3 Ishwar died and
therefore proceedings stood abated against him), while defending
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them would submit that it is apparently false implication. He pointed
out that PW5 Ritesh, eye witness as well as PW1 Rohidas have not
marked presence of his clients i.e. Umesh and Chandu. Though PW2
informant has named his clients, it is pointed out that only role
attributed to them is of holding. It is pointed out that going by the
evidence of prosecution witnesses, it is doubtful whether they had
occasion at all to see the alleged incidence. He emphasized that
alleged incidence had taken place in the night and in spite of injured
claiming people around, no independent witness has been examined.
Even important witness like Yogesh and Dnyaneshwar (cousin
brothers of deceased), whose names are repeatedly appearing in the
evidence of prosecution witnesses, have been withheld by prosecution
for the best reasons known to it. He took us through the evidence of
prosecution witnesses and would question as to whether, from the
evidence of prosecution witnesses, genesis of the occurrence is
coming on record. At this juncture, he pointed out that some
incidence of quarrel is stated by prosecution witnesses but according
to him, even so called quarrel was during Ganpati festival and the
incident in question has taken place in January and therefore, what
was the motive after five to six months having not come on record, it
is his submission that there is no motive and the alleged assault
comes under shadow of doubt.
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5. His next submission is that when there is no role attributable to
his clients, how Section 149 of IPC could at all be invoked when
according to him, there is nothing to infer common object entertained
and shared by his clients along with others. In support of his such
submissions, he seeks reliance on the ruling of Hon'ble Apex Court in
Taijuddin v. State of Assam and Others ; (2022) 1 SCC 395, Bal
Mukund Sharma alias Balmukund Chaudhary and others v. State of
Bihar ; (2019) SCC 469 and Roy Fernandes v. State of Goa and
others ; (2012) 3 SCC 221.
6. As regards failure of prosecution to examine important
witnesses and deliberately withholding them, he seeks reliance on the
ruling of Hon'ble Apex Court in the case of Deepak Kumar v. Ravi
Virmani and another ; (2002) 2 SCC 737, Ishwar Singh v. State of
U.P. ; AIR 1976 SC 2423, Vencil Pushpraj v. State of Rajasthan ; AIR
1991 SC 536 and Ramashish Yadav and others v. State of Bihar ; AIR
1999 SC 3830.
7. Learned counsel Mr. A. B. Girase representing accused nos. 1
and 2 i.e. Sunil and Satish also criticized the judgment by pointing
out that evidence of prosecution witnesses is not trustworthy as they
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are not consistent. Even he questioned the credibility of prosecution
version on the premise that in spite of occurrence taking place in
residential locality and in spite of reference of people at the spot at
the time of occurrence, no independent witness is examined. He
would submit that only interested witnesses are examined and
important witnesses like Yogesh, Dnyaneshwar and Onkar are not
examined. Taking us through the answers given by prosecution
witnesses in cross, he questioned the prosecution story by submitting
that different witnesses are quoting different timings. There is no
unanimity about exact spot of incident as various versions are coming
from the mouth of various witnesses. On such count, he submits that
here, prosecution has failed to establish the exact spot of incident and
therefore story of prosecution is doubtful. According to him, some
witnesses point to the spot in court yard of one Onkar Bhoi whereas,
other spot coming from prosecution's own witness is a spot in front of
garage, but no blood stains are found at the said spot. Evidence of
PW2 informant Pruthviraj and even injured PW6 Dattatraya is full of
material omissions and contradictions. He pointed out that by no
means PW1 Rohidas can be said to be an eye witness.
8. Attacking the recovery evidence, he submitted that prosecution
witnesses claim that after the occurrence accused fled with the
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weapons in their hand but surprisingly, subsequently weapons are
shown to be recovered from the very vicinity of the spot and thus, on
such count, prosecution version is criticized as unworthy of credence.
9. He claims that even testimony of PW2 informant, PW5 Ritesh
and PW6 Dattatraya is not consistent and is rather full of variances.
For all above reasons, it is his submission that, implication is because
of some quarrel which had taken place few months back and as such,
there being no evidence regarding previous occurrence, it is his
submission that both, motive and genesis, are not forthcoming. For all
above counts, he criticized the judgment of conviction by submitting
that there is improper appreciation and analysis of the evidence at the
hands of learned trial court and consequently, he too prays for
allowing the appeal by setting aside the impugned judgment.
10. According to learned APP, the judgment under challenge is
perfectly valid, legal and sustainable in the eyes of law. He submits
that here, case of prosecution is rested on not only direct eye witness
but also injured eye witness. Occurrence has been proved through
their testimonies. Throughout their testimonies have remained
unshaken. There is use of deadly weapons like knife and gupti.
Occurrence had taken place in the backdrop of previous quarrel.
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Therefore motive is also established. There is death of one person and
PW6 Dattatraya was a victim of murderous assault. Injured PW6
Dattatraya, informant PW2 Pruthviraj as well as independent witness
PW5 Ritesh are all consistent about arrival of accused getting armed
and carrying out assault. Therefore, only conclusion that could be
drawn from the available evidence is that appellants are real culprits
and are rightly held guilty. According to learned APP only on proper
appreciation, conclusion has been reached at. There being no
perversity, he submits that there is no merit in the appeal and
consequently he prays to dismiss the same.
EVIDENCE BEFORE THE TRIAL COURT
11. To establish their case, prosecution has examined in all 10
witnesses. Their role and status can be summarized as under:
PW1 Rohidas Gangaram Patil, is resident of the same locality, who
acted as pancha to inquest panchanama Exhibit 42
PW2 Informant Pruthviraj Pandit Patil is brother of deceased
Samadhan. He claims to have witnesses the incident. He
identified the complaint lodged by him to be at Exhibit 44 so
also the weapons Article 41 gupti and Article 40 knife.
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PW3 Dr. Ajeet Gajanan Pathak is the autopsy doctor. He identified
the postmortem report issued by him to be at Exhibit 49. He
also issued weapon examination report Exhibit 52 opining
about injuries mentioned in column no. 17 to be possible
weapons Articles 40 and 41.
PW4 Dr. Noyel Philip Britto is the doctor who treated injured
Dattatraya and issued injury certificate Exhibit 55.
PW5 Ritesh Suresh Saindane (Patil) is resident of the locality. He
claims to be the eye witness.
PW6 Dattatraya Pandit Patil is the injured eye witness.
PW7 Rajendra Pandit Shimpi is pancha to memorandum of
disclosure and recovery of weapon gupti at the instance of
accused no.2 Satish (Exhibits 62 and 63).
PW8 Bhaskar Chaitram Nagrale is pancha to memorandum of
disclosure and recovery of knife at the instance of accused
no.1 Sunil (Exhibits 67 and 68).
PW9 Narendra Randhir Gaikwad has acted as pancha to seizure of
clothes of deceased Samadhan.
PW10 P.I. Ramrao Madhavrao Somwanshi is the Investigating
Officer [IO].
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Defence has also examined following three witnesses:
DW1 Dr. Ravindra Prakash Sonawane who examined accused nos. 1
and 2 i.e. Sunil and Satish. He claims to have noticed two CLW
to Sunil and one CLW injury to Satish which, according to this
medical expert, were simple in nature. He identified injury
certificates issued by him to be Exhibits 118 and 119.
DW2 PI Salim Abdul Raje deposed about registering offence on the
strength of complaint lodged by Accused Sunil while in Civil
Hospital, Dhule. He identified the complaint and the FIR to be
Exhibits 124 and 125.
DW3 PSI Milind Kisan Bansode is the police official who investigated
the FIR lodged by accused Sunil and filed "B" summary report.
HOMICIDE
12. We have noticed that here, there is absolutely no challenge to
the manner of death to be homicidal one. Still, when we visited
evidence of autopsy doctor PW3 Dr. Pathak, he is found to have
deposed about coming across three stab injuries, two abraded
contusions and seven incised wounds which he mentioned in column
no.17. Considering his substantive evidence containing number,
nature and sites of injuries and the manner of his cross, we are also of
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the firm opinion that death of Samadhan is proved by prosecution to
be homicidal one.
ANALYSIS
13. In our opinion, on the point of actual occurrence, evidence of
PW1 Rohidas, PW2 informant Pruthviraj, PW5 Ritesh, PW6 Dattatraya
is of significance. Rest are panchas, medical experts and police
officials. Therefore, we would proceed to analyze the evidence of so
called ocular account and then switch over to medical account to
ascertain whether ocular account finds support from medical evidence
and finally, to ascertain whether, as questioned in appeal,
independent witnesses are deliberately withheld and whether
testimonies of so called eye witnesses are worthy of credence or not.
14. PW1 Rohidas, in his evidence at Exhibit 41, has deposed about
knowing accused as well as informant party being residents of his
village and there being quarrel between them on account of volume
of loudspeaker during Ganpati festival.
Regarding the occurrence on 29.01.2014, he deposed in para 3
of his examination-in-chief as under:
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"3) On 29/1/2014 at about 9.30 pm, I was talking with
one Sudam Budha Patil near the hotel of Mohan Gambhir
Patil. At that time I heard some shouts from Anchale road.
I and Sudam Patil rushed towards that shouts. There I saw
in the light of electric pole that accused Sunil Nimba was
running away possessing with blood stained knife towards
Duttnagar area. I also saw that accused Satish @ Yogesh
Nimba Patil was running having blood mixed gupti (big
knife). Thereafter, I saw in the courtyard of Onkar Dhana
Bhoi, Samadhan Pandit and Dattatraya Patil were lying in
injured condition. They were in bleeding condition. I saw
that the intestines from the stomach of Dattatraya had
come out. People sent Samadhan and Dattatrya to Astha
Hospital, Dhule, in the separate vehicle. After half an hour
I went to said Astha Hospital, Dhule, there I came to know
that Samadhan is died. From Astha Hospital, I returned to
home."
15. PW2 Pruthviraj is the informant and brother of deceased
Samadhan as well as injured Dattatraya. In his evidence at Exhibit 43,
in para 1 he deposed about the earlier incident which took place
during Ganpati festival four and half months prior to the main
incident. He deposed about accused Sunil, his brothers and uncles
being aggrieved due to increased volume of loudspeaker, all accused
along with absconding accused Yogesh coming armed with axe and
sticks, asking Dattatraya to minimize the volume, assaulting him and
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when this witness tried to rescue Dattatraya, accused assaulting him
too by means of stick and so Dattatraya lodging complaint at Dhule
taluka police station. He deposed that since the said incident, there
was enmity between two families.
Regarding the actual incident on 29.01.2014, he deposed in
para 2 which is reproduced as under:
"2) My cousin brother Yogesh and Dnyaneshwar run
garage of motorcycle repairing on Anchale road at Mukti
village. On 29/1/2014 at about 9.15 pm, I had gone to
the grocery shop of Anil Jain. The distance between said
grocery shop of Anil Jain and garage of my cousin Yogesh
is 80 to 85 feet. At that time Yogesh and Dnyaneshwar
both were at their garage. At that time all accused came
triple seats each on two motorcycles from Anchale road
and proceeding through the said road. They stopped their
motorcycles on the garage of Yogesh and Dnyaneshwar.
They alighted from the motorcycles and started abusing to
Yogesh and Dnyaneshwar. During that period Samadhan
and Dattatraya were proceeding near the garage. All
accused were saying that "tumhi loka matun gele" you
have become arrogant and lodged complaints against us.
They started assaulting Dnyaneshwar, Yogesh, Dattatraya
and Samadhan. I went there to rescue. They also started
assaulting me. They assaulted me by means of fist and
kick blows. Meanwhile accused Chandu said not to leave
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anybody and kill either of them. At that time accused
Sunil and Satish removed pointed weapon like kukari.
Accused Ishwar and Chandu caught hold Samadhan.
Accused Sunil and Satish started giving blow of said
weapon on the person of Samadhan. Meanwhile,
Dattatraya went to rescue, accused Sunil gave blow on the
person of Dattatrya. Initially, when Dattatrya went to
rescue, accused Yogesh and Umesh caught hold of his
hands. Samadhan and Dattatrya both fallen on the
ground. The intestines of Dattatraya had come out. Both
were in bleeding condition. My cousin Yogesh,
Dnyaneshwar, Ritesh Suresh Patil, Rohidas Gangaram
Patil gathered there and took Dattatraya and Samadhan to
Astha Hospital, Dhule, in separate vehicle. I and my
parents were with Dattatraya in one vehicle and
Dnyaneshwar and Yogesh were with Samadhan in another
vehicle. Doctor examined Samadhan in the hospital and
declared him as dead. Thereafter, I went to Dhule Taluka
Police Station and lodged complaint there. Complaint now
shown to me is the same. Its contents are correct. It bears
my signature. It is marked at Exh. 44."
16. PW5 Ritesh is the resident of the same village. He also claims to
be an eye witness to the incident. In his evidence at Exhibit 58 in the
first para he gave deposition as under:
"I know all accused present before court. The incident is
occurred on 29/01/2014 at about 9.00 to 9.15 pm. At that
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time, I along with one Sharad and Ravindra were sitting
on the bench near one pan stall on Anchale road. At that
time, I and Sharad were proceeding for urination towards
Anchale road. When we reached there, we saw there was
rush near the house of Onkar Bhoi. I saw that there was
gupti in the hand of Satish Nimba Patil and a knife in the
hand of Sunil Nimba Patil. They both gave blows of the
said gupti and knife on the person of Samadhan Pandit. At
the same time, Sunil Nimba Patil hold the neck of
Dattatraya and gave a blow of a knife in the stomach of
Dattatraya. Therefore, intestines of Dattatraya were came
out. Both Dattatraya and Samadhan fallen on the ground.
At that time, Rohidas Gangaram, Dnyaneshwar Gulab,
Pruthwiraj Pandit and Dnyaneshwar Bapu were present
there. Accused Satish Nimba and Sunil Nimba ran away
towards Anchale road along with their weapons. Near the
said spot there was an electric mercury street light. Said
Satish Nimba and Sunil Nimba are present before the
court today. I can identify the said gupti and knife if
shown to me. Muddemal Article No.40 knife now shown
to me was in the hand of Sunil Nimba, whereas
muddemal article No.41 gupti now shown to me was in
the hand of Satish Nimba."
17. Injured PW6 Dattatraya is another brother of deceased
Samadhan. His evidence is at Exhibit 60 in which he initially deposed
about enmity between accused and informant party due to the
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incident during Ganpati festival in 2013. On the occurrence dated
29.01.2014, he deposed in para 3 as under:
"(3) On 29/1/2014 at about 9.00 to 9.15 pm, I was sitting
near the 'Jaishriram Garage' of Dnyaneshwar Bapu Patil.
At that time, accused Sunil Nimba, Satish Nimba and
Ishwar Khandu came on one motorcycle by name Pulsar.
Along with them accused Chandu Ishwar, Umesh Ishwar
and Yogesh Nana came on another motorcycle of Discover
make. They made motorcycle stationary, alighted from it
and started abusing us. They said that at the time of
Ganpati festival, we saved, but now we will kill someone.
Accused Sunil Nimba said this fact. Due to this,
Dnyaneshwar Bapu and Yogesh Bapu made the shutter of
the garage down. All accused started assaulting me,
Dnyaneshwar Bapu and Yogesh Bapu by means of fist and
kick blows. Accused Sunil Nimba removed the knife from
the pocket of his jacket and showing it gave slogan viz.
'Jai Shivaji Jai Bhawani'. Pruthwiraj Pandit who was at the
adjacent grocery shop came there by seeing this.
Meanwhile, accused Satish Nimba removed one gupti
from PVC pipe which was with him. During that period
my brother Samadhan was coming after answering
nature's call and by seeing him, accused Chandu Ishwar
shouted by saying that ' rks c?k eknjpksn ;srks vkgs R;kyk ikgw o
[kykl d:-' Both accused Sunil Nimba and Satish Nimba
along kinfe and gupti proceeded towards Samadhan. They
caught Samadhan in the courtyard of Onkar Bhoi. Both
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accused Sunil Nimba and Satish Nimba gave blows of
knife and gupti on chest and abdomen on the person of
Samadhan in the courtyard of Onkar Bhoi. I caught hold
Sunil Nimba to prevent him. At that time Sunil Nimba
caught hold my neck and gave blow of a knife in my
stomach. Due to said blow, there was bleeding and
intestines were came out. Samadhan fallen on the ground
in bleeding condition and I also sat on the ground due to
coming out intestines from my stomach. All accused
became violent and therefore, nobody could dare to come
and save us. Thereafter, accused Satish and Sunil ran
away towards Duttanagar, possessing knife and gupti.
Other accused ran away by motor cycle. Rohidas
Gangaram, Ritesh Suresh, Pruthwiraj, Dnyaneshwar Gulab
etc. kept Samadhan in black-yellow taxi jeep and kept me
in the Bolero vehicle and brought us to Ashta Hospital,
Dhule."
18. Above witnesses have been extensively cross-examined by
defence counsel, however, it is pertinent to note that there is little or
no effective cross on the alleged actual occurrence of assault. On
carefully sifting the testimony of PW2 Pruthviraj, PW5 Ritesh and
PW6 Dattatraya, what is emerging is that they are all consistent about
previous quarrel. Though it has been shown that so called previous
quarrel had taken place during Ganpati festival, here, there is not only
eye witness account but also injured witness account. Under such
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circumstances, ground raised that what triggered the occurrence and
what is the genesis of assault on the night of 29.01.2014, in our
considered opinion, is not of much significance and it takes back seat.
Had it been otherwise and had it been a case based on circumstantial
evidence, the point raised by both the learned counsel before us could
have some relevance.
19. PW2 informant, PW5 Ritesh and PW6 Dattatraya along with
PW1 Rohidas, pancha to inquest panchanama, are all unanimous
about occurrence taking place around 9.00 p.m. There may be
variances but it is common knowledge that there are bound to be
variances. There may be variances on several counts as different
witnesses grasp occurrence distinctly and reproduce it in distinct
manner. Above all, there is injured eye witness account in the form of
PW6 Dattatraya, who suffered injury which would have turned out to
be fatal.
As regards to submission of inconsistencies and variances in the
evidence is concerned, it is to be noted that occurrence has taken
place around 9.00 p.m. to 9.30 p.m. The Hon'ble Apex Court in the
recent case of Birbal Nath v. State of Rajasthan and others [Criminal
Appeal No. 1587 of 2008 along with connected matter, decided on
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30.10.2023], by taking recourse to the earlier judgment in State of
M.P. v. Mansingh and others ; (2003) 10 SCC 414, has reproduced
para 9 which is as under :
"9. The evidence of injured witnesses has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly. Merely
because there was no mention of a knife in the first
information report, that does not wash away the effect of
the evidence tendered by the injured witnesses PWs 4 and
7. Minor discrepancies do not corrode the credibility of an
otherwise acceptable evidence. The circumstances
highlighted by the High Court to attach vulnerability to
the evidence of the injured witnesses are clearly
inconsequential."
Therefore, here also, there is injured eye witness account and
informant is also a victim of fisticuffs. Consequently, we do not wish
to give much importance to the so called variances which are
apparently not material one and the core of the accusation having
remained undisturbed.
20. Evidence of PW1 Rohidas shows that on hearing shouts, he had
approached the spot and his evidence shows that he merely saw
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accused Sunil and Satish running away and this witness has directly
seen Dattatraya and Samadhan lying in injured condition. Therefore,
he cannot be said to be an eye witness.
However, if we carefully visit evidence of PW2 Pruthviraj -
informant, PW5 Ritesh (an independent witness and resident of same
village) and PW6 Dattatraya (an injured witness), it has clearly come
in their evidence about arrival of all accused persons triple seat on
two motorcycles together at one and the same time. They are all
unanimous about accused Satish to be armed with gupti and accused
Sunil to be armed with knife. PW2 informant and PW6 Dattatraya are
both attributing instigation to accused Chandu directing others not to
spare anybody and to kill either of them. Therefore, common object is
becoming explicit. PW5 Ritesh claims that he was in the company of
one Sharad and he also saw the occurrence. There is nothing in his
cross which could damage his testimony, nor there is suggestion of
false implication.
21. Further, PW6 Dattatraya himself is an injured witness and as
such his presence also need not be doubted. He has narrated the
sequence since arrival of accused on motorcycles. He has also
narrated about utterance of accused after parking their motorcycles.
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He too is assaulted initially by means of fist and kick blows. He too
has stated that accused Sunil was armed with knife and he removed it
from his jacket and he gave slogans upon which PW1 Rohidas came.
According to him, meanwhile accused Satish removed gupti from a
PVC pipe and seeing Samadhan arrive, Satish and Sunil rushed
towards him and mounted assault and seeing such assault on his
brother, he claims to have gone to his rescue and thereafter, he too to
be assaulted by means of knife. PW5 Ritesh-independent witness has
also narrated about assault on PW6 Dattatraya. Therefore, evidence of
PW2 informant, PW5 Ritesh and injured PW6 Dattatraya does
inspires confidence on the point of actual occurrence of assault.
22. Learned senior Advocate Shri R. N. Dhorde would vehemently
submit that names of his clients i.e. Umesh and Chandu are coming
from the mouth of only PW2 informant alone and neither PW5 Ritesh
nor PW6 Dattatraya are marking their presence.
23. In the light of above submissions, we have carefully gone
through the evidence of PW2 informant Pruthviraj, PW5 Ritesh and
PW6 Dattatraya. We are not at all impressed by the above ground for
two reasons. Firstly, informant apart from naming them in FIR, has
also deposed and named them in his substantive evidence before the
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court. Secondly, PW6 injured witness in his substantive evidence has
stated that accused Sunil, Satish and Ishwar came on one Pulsar
motorcycle whereas, accused Chandu, Umesh and Yogesh came on
Discovery motorcycle. He is attributing abuses and assault to himself,
Dnyaneshwar and Yogesh by means of fisticuffs. He also spoke about
accused Chandu shouting and instigating others to kill Samadhan. He
further stated that all accused persons became violent after Samadhan
fell and his own intestine came out of the stomach. Therefore, both
informant and injured are marking presence of accused Umesh and
Chandu. It is true that PW5 Ritesh has, in his substantive evidence,
not marked their presence, but this witness had watched it from a
distance while he was returning after urinating and was in the
company of one Sharad. Therefore, mere failure on his part alone to
mark presence of Umesh and Chandu itself is not sufficient to
overlook or discard or even doubt version of PW2 informant and
injured PW6 Dattatraya, who are both victims of assault and they are
not mere watchers like PW5 Ritesh. For such reasons, we are not
ready to accept the ground about false implication of accused Umesh
and Chandu.
24. The next limb or argument raised by learned senior counsel is
that names of Umesh and Chandu not being appearing, their
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implication cannot be by invoking Section 149 of IPC. We are also not
ready to accept above submission because Section 149 IPC is
admittedly a vicarious liability. Law to this extent has been fairly and
repeatedly settled in the case of Sukhan Raut and others v. State of
Bihar ; (2001) 10 SCC 284, Ram Dular Rai and others v. State of
Bihar ; (2003) 12 SCC 352, Onkar and others v. State of Uttar
Pradesh (2012) 2 SCC 273 and Gurmail Singh and another v. State of
Uttar Pradesh and another ; (2022) 10 SCC 684.
In Sukhan Raut (supra) it is held "under Section 149 IPC,
liability of other members of unlawful assembly for the offence
committed during the continuance of occurrence, rests upon fact
whether the other members knew beforehand that the offence
actually committed was likely to be committed in prosecution of the
common object. Once it is established that the unlawful assembly has
common object, it is not necessary that all persons forming the
unlawful assembly must be shown to have committed some overt act
for the purposes of incurring the vicarious liability for the offence
committed by a member of such unlawful assembly".
In Gurmail Singh, in para 21, the Hon'ble Apex Court has held
that "even the presence in an unlawful assembly, with an active mind,
to achieve the common object, would make a person vicariously liable
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for the acts of the unlawful assembly. Inference of common object has
to be drawn from various factors such as weapons with which the
members were armed, their movements, the acts of violence
committed by them and the result. The presence of accused as a part
of unlawful assembly is sufficient for his conviction ."
In para 31 of the same judgment, it has been observed that in
order to attract Section 149 IPC, it must be shown that the
incriminating act was done to accomplish the common object of the
unlawful assembly and it must be within the knowledge of other
members as one likely to be committed in prosecution of the common
object.
In Onkar (supra), it has been observed that the number and
nature of injuries is also relevant to be considered and that common
object may also be developed at the time of incident.
25. Keeping in sight the above discussed settled legal position,
here, there is already background to the occurrence dated
29.01.2014. PW2 informant, PW5 Ritesh and PW6 Dattatraya, as
stated above, are consistent about arrival of appellants accused. They
had come armed with weapons like knife and gupti. After hurling
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abuses, prosecution witnesses are beaten by fists and kick blows. On
arrival of Samadhan, accused Chandu had directed to kill. Even at
that point of time all accused, who had come together at one and
same time, had remained there and thereafter, initially Samadhan
was assaulted by knife and gupti, followed by assault on PW6
Dattatraya who went to rescue Samadhan. So much part of their
evidence clearly indicates that the gathering was not only unlawful
but they had come armed with deadly weapons. Such material
definitely is itself sufficient to impute common object. Consequently,
mere failure on the part of only one witness, i.e. PW5 Ritesh, to name
accused Umesh and Chandu while in witness box, is in itself not
sufficient to segregate them from others. PW2 informant as well as
PW6 injured are specific about arrival of all accused and all indulging
initially in giving fist and kick blows and thereafter putting deadly
weapons to use. Hence, in our opinion, provision under Section 149
IPC does come into play.
26. Another distinct feature of this case is that FIR is lodged
promptly. There is also evidence of injured PW6 Dattatraya whose
testimony has remained intact and therefore gets placed at higher
pedestal.
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27. As regards the ground of non-examination of Dnyaneshwar and
Yogesh, the same also is of not much significance because it is the
quality and not the quantity that matters. Occurrence is categorically
getting unfolded from the evidence of PW1 Rohidas, PW2 informant
Pruthviraj, PW5 Ritesh and PW6 Dattatraya. Therefore, we do not feel
that the above ground has any merit or substance.
Likewise, prosecution version is also sought to be questioned by
submitting that genesis of the occurrence dated 29.01.2014 has not
been proved by prosecution. It is true that there was some incident in
Ganpati festival that year and regarding that, complaint was also
lodged and directly alleged occurrence of night of 29.01.2014 has
come on record. But there is background for the animosity as is
evident from prosecution witnesses. Even suggestions given to
witnesses are regarding previous quarrel and therefore, it is not open
to agitate that genesis is not getting unfolded. Occurrence is
reproduced by informant as well as injured consistently and therefore,
in the light of availability of ocular evidence, even aspect of motive
takes back seat
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28. Apart form above witnesses, prosecution has examined autopsy
doctor PW3 Dr. Pathak. The injuries noticed by him have been
reproduced by him both in postmortem report as well as while in
witness box. PW4 Dr. Britto, who medically examined and treated
injured PW6 Dattatraya, has also been examined. Ocular account is
supported by medical evidence which further strengthens and fortifies
the case of prosecution. There is recovery evidence. Mere aspect of
recovery of weapons from nearby vicinity of the spot itself is no good
ground to doubt the recovery. It is possible to hide weapons while
fleeing from the spot. Therefore, there is no reason to disbelieve the
recovery evidence.
29. To sum up, here, there is credible trustworthy oral account of
informant PW2 Pruthviraj, independent witness PW5 Ritesh and
injured witness PW6 Dattatraya finding support from medical
evidence. Previous quarrel not being disputed, motive is also existing.
Therefore, evidence of prosecution deserves to be accepted even on its
re-appreciation, re-analysis and re-examination i.e. both, oral and
documentary.
30. In our opinion, learned trial Judge has considered every aspect
from all possible angles and has rightly accepted prosecution evidence
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further holding case of prosecution to be proved. No patent perversity
is brought to our notice and hence we uphold the findings and
conclusion reached at by learned trial Judge. Resultantly, no reason
to interfere in the findings and the impugned judgment. Hence we
proceed to pass the following order:
ORDER
Both appeals are hereby dismissed.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.] vre ::: Uploaded on - 03/11/2023 ::: Downloaded on - 05/11/2023 06:36:57 :::