Bombay High Court
Ashok Ganapati Patil vs The State Of Maharashtra on 19 October, 2011
Bench: V.M. Kanade, A.M. Thipsay
Apeal-414-91
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.414 OF 1991
1. Ashok Ganapati Patil, )
Aged 20 years, Occu.: Agriculture )
)
2. Ranga @ Ramchandra Agnu Patil, )
Aged 28 years, Occu.: Agriculture )
)
3. Sopan Ganapati Patil )
Aged 25 years, Occu.: Private Service )
ig )
4. Babaso Ganapati Patil, )
Aged 33 years, Occu.: Private Service )
)
5. Ganapati Ramchandra Patil, )
Aged 70 years, Occu.: Agriculture )
)
All residents of Gundewadi, Tal. Miraj, )
Dist. Sangli ) ... Appellants
) (Orig. Accused Nos.1 to 5)
Versus
The State of Maharashtra ) ... Respondent
Mr. Umesh Mankapure for the Appellants.
Smt. V.R. Bhosale, APP, for the Respondent-State.
CORAM : V.M. KANADE &
A.M. THIPSAY, JJ.
RESERVED ON TH SEPTEMBER, 2011.
: 7
TH OCTOBER, 2011.
PRONOUNCED ON : 19
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Apeal-414-91
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JUDGMENT {PER A.M. THIPSAY, J.} :
1. This Appeal is directed against the Judgment and Order dated 30th May, 1991 passed by the 3rd Additional Sessions Judge, Sangli, in Sessions Case No.21 of 1990 convicting the Appellants, who were accused in the said case, of the offences punishable under Sections 147 IPC, 148 IPC, 302 IPC and 325 IPC read with Section 149 of the IPC. The learned Additional Sessions Judge, Sangli, sentenced the Appellants (each of them) as follows :-
(a). For the offence punishable under Section 147 of the Indian Penal Code, rigorous imprisonment for two years and a fine of Rs.200/- with a default sentence of rigorous imprisonment for ten days;
(b). For the offence punishable under Section 148 of the Indian Penal Code, rigorous imprisonment for three years and a fine of Rs.300/- with a default sentence of rigorous imprisonment for fifteen days;::: Downloaded on - 09/06/2013 17:51:57 :::
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(c). For the offence punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code, imprisonment for life.
(d). For the offence punishable under Section 325 of the Indian Penal Code read with Section 149 of the Indian Penal Code, rigorous imprisonment for three years and a fine of Rs.300/- with a default sentence of rigorous imprisonment for fifteen days.
. The sentences were directed to run concurrently.
2. Being aggrieved by the said order of conviction and sentences, the Appellants have approached this Court. The Appellant Nos.1, 2, 3, 4 and 5 were the Accused Nos.1, 2, 3, 4 and 5, respectively. They shall hereinafter be referred to by the positions held by them during the trial, for the sake of convenience.
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3. The prosecution case before the trial Court was in brief as follows :
. The Accused Nos.1, 3 and 4 are the sons of the Accused No.5 Ganapati Ramchandra Patil. Accused No.2 - Ranga @ Ramchandra Agnu Patil - is the nephew of the Accused No.5 Ganapati. The agricultural lands belonging to Shivaji Laxman Salagare (PW-9), husband of the First Informant Laxmibai Shivaji Salagare (PW-4) and those of the accused persons were situated side by side. Sahadeo - the deceased - was the son of Shivaji (PW-9) and Laxmibai (PW-4). On a day prior to the incident, some quarrel had taken place between Shivaji (PW-9) and the Accused No.1 - Ashok Ganapati Patil -
over fetching of water. The Accused No.1 Ashok had assaulted Shivaji (PW-9) with a stick. Shivaji (PW-9) had told this to Sahadeo, where upon Sahadeo and Shivaji (PW-9) had gone towards the house of Accused No.1 Ashok. Sahadeo had questioned the Accused No.1 as to why he had assaulted Shivaji and had given a slap to Accused No.1 Ashok.
. That, on 19th October, 1989, which was a Thursday, Sahadeo had gone to his field to water the crops. He was followed by the First Informant Laxmibai (PW-4), who had reached there with the meals for Sahadeo. The ::: Downloaded on - 09/06/2013 17:51:57 ::: Apeal-414-91 5 Dixit wife of the Accused No.5 Ganapati and the wife of Accused No.3 Sopan removed the water pipe from the chamber, over which some quarrel took place among those women. Sahadev asked Laxmibai (PW-4) not to talk to those ladies. While Sahadeo was carrying that pipe from the chamber, all the accused came running towards him. The Accused No.5 Ganpati was armed with a sickle. The Accused No.4 Babaso was armed with a cycle chain and the other three accused were having a stick with each of them. All the accused persons started beating Sahadeo. Laxmibai (PW-4) came running towards Sahadeo. Sahadeo fell on the ground with his face upwards.
Laxmibai (PW-4) fell on the person of Sahadeo to protect him from the assault, but the accused kept on beating Sahadeo. The accused also gave some blows to Laxmibai (PW-4). Sahadeo received bleeding injuries as a result of the said assault. Laxmibai (PW-4) also received injuries on her chin, both hands and feet. A fracture was caused to her hand.
. On hearing the shouts of Laxmibai (PW-4), Shivaji (PW-9) came to the spot with one Kuber. The Accused Nos.1 to 5 said something to Kuber after which Kuber went away running. Shivaji (PW-9) raised cries and then the accused ran away. Shivaji (PW-9) and Laxmibai (PW-4) took Sahadeo first to ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 6 Dixit the S.T. Stand of Gundewadi in a bullock cart and then by S.T. Bus to Miraj.
Sahadeo was not talking. With the help of Police he was brought to the General Hospital, Sangli, where, on examining him, he was declared to be dead. In the Hospital, the statement of Laxmibai (PW-4) was recorded, which was treated as the First Information Report (Exhibit-58). Crime No. 120 of 1989 was registered on that basis by PSI Manohar Anant Mane (PW-12). Inquest Panchanama (Exhibit-33) was drawn. The clothes on the body of Sahadeo were taken charge of (Articles 1, 2, 3 and 4). The clothes of Laxmibai (PW-4) were also seized under a Panchnama (Exhibit-35) in the presence of Panchas Shrirang Maruti Waghmode (PW-1) and one Bajarang.
. The Accused No.5 Ganpati, Accused No.2 Ranga and Accused No.1 Ashok were arrested at 9:00 p.m. on 19th October, 1989. Their clothes, which were having blood stains, were taken charge of under different Panchnamas (Exhibits 82, 83 and 84). The Accused No.3 Sopan was arrested at 11:00 p.m. on the same day and his blood stained banian was also attached under Panchnama (Exhibit 85).
. On 20th October, 1989, Spot Panchnama was drawn (Exhibit 70) and ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 7 Dixit certain articles were seized thereunder.
. PSI Mane (PW-12) interrogated the Accused No.5 Ganpati, who in the presence of Panchas Vasant Atmaram Chavan (PW-2) and Mohammad Shaikh gave certain information, pursuant to which a sickle (Article 21) was recovered from the house of the said Accused No.5 Ganpati. The sickle was sealed and labelled. The Accused No.1 Ashok, pursuant to the interrogation made by the Investigating Officer (PW-12), gave certain information in the presence of the same Panchas, which information was recorded (portion marked as "A" in Exhibit-43), pursuant to which the said clothes were recovered from the house of the Accused No.1 Ashok. These articles were sealed and labelled.
4. On the same day, i.e. on 20th October, 1989, the Accused No.4 Babaso was arrested at about 3:30 p.m. On interrogating him, he gave certain information which was recorded in the presence of Panchas under
Panchnama (Exhibit-48). Pursuant to the said information, the Accused No. 4 Babaso produced a pant and banian. A cycle chain was found in the Vijar.
The cycle chain (Article 25) and clothes were taken charge of under a ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 8 Dixit Panchnama (Exhibit-49).
. On 25th October, 1989, the sample of the blood of the accused persons was collected. The sample of the blood of the First Informant Laxmibai (PW-4) was also collected. The samples were sent to Chemical Analyzer for chemical analysis and opinion on 26th October, 1989. They were carried by Head Constable Kallappa Ramchandra Kambale (PW-11). The certificates in respect of the injury (Exhibit 61) sustained by Laxmibai (PW-4) and the report of the post-mortem examination (Exhibit 66) on the dead body of Sahadeo were obtained. On completion of investigation, a Charge-Sheet was filed.
5. The prosecution examined twelve witnesses during the trial. The defence of the accused persons during the trial was of total denial. The accused contended that they had been falsely implicated.
6. We have carefully gone through the entire evidence adduced during the trial. We have also perused the judgments delivered by the learned Additional Sessions Judge, Sangli.
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7. The case rests primarily on the evidence of Laxmibai (PW-4), who is the First Informant, mother of the deceased and an eye witness to the incident. The father of the deceased Shivaji (PW-9) is also an eye witness to the incident, though he, apparently, has not seen the actual assault. It would be proper to examine the evidence of these two witnesses first.
8. In her cross-examination, Laxmibai (PW-4) has stated that she knew all the accused persons as they are the residents of one and the same village and that the field of Laxmibai's family and the field of the Accused No.5 Ganpati was adjoining one another. According to her, a day prior to the incident of assault on Sahadeo, her husband Shivaji (PW-9) was assaulted by Accused No.1 Ashok. Laxmibai (PW-4) claimed to have learnt this from her husband, who had told Sahdeo and her, about the said incident. Shivaji (PW-9) had told Laxmibai (PW-4) and Sahdeo that Accused No.1 Ashok was going to the field of Shivaji (PW-9), trampling over the crop of Hybrid Jawar. Shivaji (PW-9), therefore, asked Ashok (Accused No.1) as to why he was doing so and over that a quarrel took place. Accused No.1 Ashok hit Shivaji (PW-9) on his leg with a stick. When Shivaji (PW-9) narrated this ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 10 Dixit incident, Sahadeo went to the house of Accused No.1 Ashok along with Shivaji (PW-9) to question the Accused No.1 Ashok as to why he had beat Shivaji (PW-9). Sahadeo gave a slap to the Accused No.1 Ashok.
9. This evidence of Laxmibai (PW-4) gets full support and corroboration from the evidence of Shivaji (PW-9). In his evidence, he has stated that on the day prior to the incident of assault on Sahadeo, the Accused No.1 Ashok had trampled over the crops in the field of Shivaji (PW-9). That, Shivaji (PW-9) had then stopped him and asked him not to go to the crop. That, the Accused No.1 Ashok then fell Shivaji (PW-9) down in the field and gave a blow with the stick which he was holding, on the thigh of Shivaji (PW-9).
That, when Shivaji (PW-9) returned, he told Sahadeo about this incident, when Sahadeo asked Shivaji (PW-9) to accompany him so that he would question the Accused No.1 Ashok as to why he had beaten an old person.
That, while Shivaji (PW-9) and Sahadeo were going towards the house of Accused No.1 Ashok, they noticed him near his Vasti. Sahadeo questioned him as to why he had beaten Shivaji (PW-9) and gave a slap to the Accused No.1 Ashok. Sahadeo was then brought back home by Shivaji (PW-9).
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10. I have carefully considered the evidence of Laxmibai (PW-4) and Shivaji (PW-9) with respect to this incident, which had taken place a day prior to the assault on Sahadeo. I find that the evidence of both these witnesses on this point is natural and truthful. These witnesses on this point were sought to be discredited during the trial by suggesting that no complaint about Shivaji (PW-9) being assaulted by Accused No.1 Ashok was lodged with the Police. We do not find that the incident of assault by Accused No.1 Ashok or the injury thereby caused to Shivaji (PW-9) was that serious so as to lead to a doubt about its truth because it was not reported to the Police. Moreover, Sahdeo had resorted to private retribution and therefore would not feel the necessity of reporting the assault on Shivaji to Police. Shivaji (PW-9) had stated the matter to Sahadeo and Laxmibai (PW-4), which is quite natural. Again, Sahadeo became angry because his old father was beaten is also quite natural and there is absolutely no reason to disbelieve the same. Sahadeo, who, as per the own case of the accused, as appearing from the suggestion given to the witnesses in the cross-
examination, was a head strong person, would natural question the Accused No.1 Ashok with regard to the assault on Shivaji (PW-9). The evidence of Shivaji (PW-9) that Sahadeo had slapped Accused No.1 Ashok, therefore, is ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 12 Dixit natural, probable and there is no reason to disbelieve the same. We are, therefore, of the opinion that this incident, that had taken place on the day prior to the assault on Sahadeo, has been satisfactorily proved.
11. As regards the incident of assault on Sahadeo, the crucial evidence in that regard is of Laxmibai (PW-4) which in certain respects is supported by the evidence of Shivaji (PW-9). According to Laxmibai (PW-4), it was a Thursday and Sahadeo had gone to their field to water the crops. Laxmibai (PW-4) had followed him with meals for him. The evidence shows that Laxmibai (PW-4), Shivaji (PW-9) and Sahadeo and also the accused persons used to water the crops by fetching water of a Well belonging to one Namdeo Patil - Sarpanch of the Village. It is also seen that the Well water used to be taken with the help of a motor that had been installed. According to Laxmibai (PW-4), since the pipe that was fitted in the chamber had been removed by Yesabai - wife of Accused No.5 Ganpati and the wife of Accused No.3 Sopan - Sahadeo was unable to get water for their crops. Laxmibai (PW-4) asked the said two ladies as to why they had removed the pipe and, according to her, those women said that it was in their field and, therefore, they had removed the same. Sahadeo, at that time, came there after having ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 13 Dixit started the motor and he advised Laxmibai (PW-4) not to talk to those ladies. Sahadeo said that as the pipe was removed by those ladies, he would take it to Namdeo Patil and give it to him. Sahadeo had then lifted the pipe and had started going to the residence of Namdeo Patil. It is at that time all the accused persons came running towards him. Laxmibai (PW-4) has described the actual incident in sufficient details. According to her, the Accused No.5 Ganpati was having a sickle with him, while the Accused No.4 Babaso was armed with a cycle chain. The other three accused were having sticks with them. Laxmibai (PW-4) has stated that all the five accused came running from the side of their houses. As Laxmibai (PW-4) saw them going towards Sahadeo, she apprehended that they might beat him and hence started running towards him. All the accused persons beat Sahadeo.
Sahadeo fell down on the ground in a supine condition. By this time, Laxmibai (PW-4) had come closer and she threw herself on the body of Sahadeo so as to protect him from the blows. However, the accused persons continued giving blows to Sahadeo on those parts of the body of Sahadeo that remained exposed. The accused also gave blows to Laxmibai (PW-4) with the weapons, which they were holding. Laxmibai (PW-4) has further stated that Sahadeo received bleeding injuries all over his person right from ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 14 Dixit the head to left leg. Laxmibai (PW-4) herself sustained injury on her chin, hands and feet. She also started bleeding from the injuries sustained by her.
Laxmibai (PW-4) was continuously shouting when this beating was going on and on hearing the same one Kuber and Shivaji (PW-9) came there. Kuber was questioned by the accused persons as to why he had been to the spot and on their asking him to go away, Kuber ran away. Shivaji (PW-9) also started raising cries and, thereafter, all the accused ran away from the spot.
12. Laxmibai (PW-4) has narrated the happenings that took place after the assault. She stated that Shivaji (PW-9) brought a bullock cart from Namdeo Patil, Sahdeo was placed in the bullock cart and taken to the S.T. Stand of Gundewadi. By the S.T. Bus, Laxmibai (PW-4) and Shivaji (PW-9) took Sahadeo to Miraj and, with the help of a Police Constable at the Miraj Police Station, Sahade was taken to the Sangli General Hospital. The Doctor at the Sangli General Hospital examined Sahadeo and declared him to be dead.
Laxmibai (PW-4) then lodged a report with the Police, which was recorded in the hospital itself. The same has been treated as the First Information Report (Exhibit-58).
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13. Laxmibai (PW-4) was subjected to lengthy and searching cross-
examination. However, nothing which would discredit her version could be elicited by the defence from her cross-examination.
14. Laxmibai (PW-4) herself was injured in the incident. She was examined by Dr. Harischandra Shivaji Patil (PW-5), who noticed the following injuries on her person :
(i). Small C.L.W. with swelling on left leg mid 1/3 anterior aspect, size ½ cm. x ¼ cm.;
(ii). Small C.L.W. on lt leg lower 1/3 anterior aspect ½ cm. x 1/4th cm. in size contused Lascerated Wound;
(iii). C.L.W. on inner aspect of lower lip through and through size 1½ x ¼ cm.;
(iv). Swelling of left dorsom of left hand, query fracture of third metacarpel;
(v). Query fracture of right radius ulna mid 1/3;
(vi). Abrasion on right leg mid 1/3 - 2 cm. in size;::: Downloaded on - 09/06/2013 17:51:58 :::
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(vii). Abrasion on right leg near to injury No.6 size 1 cm.
15. The evidence of Dr. Patil (PW-5) shows that Laxmibai (PW-4) was referred to the Orthopedic Department, where her x-ray was taken. The x-
ray and the report from the Radiologist showed that Laxmibai (PW-4) had sustained a fracture of lower 1/3 of radius of the right side and a fracture of tibia fibula on the left side. The Doctor (PW-5) has opined that the injuries had been caused due to hard and blunt substance and has opined the age thereof to be about six hours. The examination of Laxmibai (PW-4) was carried out on 19th October, 1989 itself at about 3:35 p.m., whereas the incident of assault had allegedly taken place at about 11:00 a.m. Even this Doctor (PW-5) was subjected to searching cross-examination, but nothing which would help the defence in some manner could be elicited from the cross-examination. Thus, Laxmibai's (PW-4) evidence that she was beaten and assaulted, which is even otherwise consistent and reliable, is fully corroborated by the medical evidence.
16. In his evidence about the actual incident, Shivaji (PW-9) stated that Sahadeo had gone to the field for watering the crops and that Laxmibai ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 17 Dixit (PW-4) had followed him shortly with the meals. That, Shivaji (PW-9) went to the field at about 11:00 a.m.. While he was collecting some fodder, he heard cries from the side of hillock and started running in that direction. He claims to have seen all the accused beating Sahade and also that Laxmibai (PW-4) had been lying over the body of Sahadeo. Shivaji (PW-9) has stated about the weapons possessed by the accused persons i.e. Accused No.5 Ganpati was having a sickle, Accused No.2 Ranga, Accused No.3 Sopan and Accused No.1 Ashok were having sticks with them and Accused No.4 Babaso was having a cycle chain in his hand. His version as to what happened after the incident is also the same as that of Laxmibai (PW-4). In the cross-
examination, he has admitted that the accused persons left the place before he could see as to what had happened and before he reached near Sahadeo.
However, he clearly stated that he had seen the Accused Nos.1 to 5 running away from the spot towards their houses. In somewhat lengthy cross-
examination of this witness, it was suggested to him that he was telling lies regarding having brought a bullock cart of Namdeo Patil and carried Sahadeo to the S.T. Stand of Gundewadi. It was also suggested that on the day of incident, he had not gone to the field at all; that he was attempted to be discredited with respect to the incident of he being beaten by the ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 18 Dixit Accused No.1 Ashok and Accused No.1 Ashok, therefore, having been slapped by Sahadeo on the basis that he had not made any report to the Police regarding the assault on him by the Accused No.1 Ashok on the previous day. We do not find any substance in any such suggestions, which have been denied by this witness.
17. Dr. Gulabsingh Ramsingh Rajput (PW-6) - Medical Officer attached to Civil Hospital, Sangli - who performed the post-mortem examination on the dead body of Sahadeo has opined the cause of death as shock due to subdural haematoma with cerebral haemorhage with rupture of left lung lower lobe. Dr. Rajput (PW-6) has stated that he found the following injuries on the dead body of Sahadeo :-
(i). Incised wound 4 x 1 x1 cm bone deep clotted blood.
(ii). Abrasion with Red scab over maxillary region on right side and blow lip.\
(iii). Multiple abrasion on left fore head with red scab.
(iv). Abrasion with red scab over top of nose 1 x1 cm.
(v). Multiple superficial abrasion over anterior aspect of both lower extremities, linerar and with red scab formation, ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 19 Dixit no evidence of any fracture of bone.
(vi). Incised wound over left tibeal region upper 1/3 rd.
3x2x1 cm. Bleeding and bone deep.
(vii). Right front partietal-Incised wound 10 X 3 X 2 cms bone deep, no active bleeding, no fracture of skull bones,clotted blood present.
(viii). Midparietal region, incised wound 10 X 3 X 2 ½ cms bone deep, no active bleeding, clotted blood, no fracture palpable.
(ix). Over nape of neck-3 horizontal abrasional linear over region of neck 6 X ¾ cm. with reddish blue colouration.
(x). Right midaxillary region, horizontal linear contusion with swelling blue colouration, over region 9 X 2 cms.
(xi). Over externsor aspect of left upper limb, forarm region, multiple superficial linear abrasion with red scap formation, extending from elbow to dorsum of hand with swelling. No fracture detected.
(xii). Base of left little finger to palm regiion horizontal incised wound 1 X ¾ cms with clotted blood.
(xiii). Left index finger deformity, with crepitus for proximal phalenx, fracture was present.
(ixv). Extentor aspect of right upper limb punctured wound ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 20 Dixit 1 x ½ x 1 cms, bleeding present, bone deep.
(xv). Over right upper limb multiple superficial-linear abrasion with red scab formation extending elbow to wrist joint with swelling. No fracture detcted.
(xvi). Left thigh posteror aspect of mid thigh, abrasion with red scab over region of 5 X 1 cms.
(xvii).Right infrascapular region, horizontal abrasion with contusion over region of 5 X 2 cms.
18. Dr. Rajput (PW-6) has opined that the injuries were ante-mortem.
According to him, the injuries at Sr. Nos.5 and 11 could be caused by a cycle chain and, that, the injuries at Sr. Nos.1, 6, 7, 8, 12 and 14 could be caused by a sharp and hard object. He has opined that the injuries taken together were sufficient in the ordinary course of nature to cause death. He was shown the sickle (Article 21) and the cycle chain (Article 25). He opined that certain injuries noted by him could be caused by these weapons. This witness was extensively cross-examined, but there is nothing in the cross-
examination which would shake his evidence.
19. Thus, the evidence of Laxmibai (PW-4) and Shivaji (PW-9) which ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 21 Dixit appears to be trustworthy and reliable and which corroborates the evidence of each other is further corroborated by the medical evidence. The number and type of injuries sustained by Sahadeo is in consonance with the details of assault as given by Laxmibai (PW-4).
20. The learned Additional Sessions Judge, Sangli, has believed and accepted the evidence of Laxmibai (PW-4) and Shivaji (PW-9) and rightly so, in our opinion. On an independent reappraisal of their evidence, we find the same to be reliable, natural, truthful and fully corroborated, not only by medical evidence, but even by the other evidence adduced before the trial Court.
21. The evidence of other witnesses may now be considered.
22. The evidence of Shrirang (PW-1) - a Panch - shows that on 19th October, 1989, the charge of the clothes of Laxmibai (PW-4) and Shivaji (PW-9) was taken by the Police under a Panchnama (Exhibit-35). The articles Saree, Choli and Bandi (Articles 5, 6 and 7, respectively), which were produced before the Court, have been identified by this witness as the ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 22 Dixit same that were taken charge of in his presence. The evidence of Vasant Chavan (PW-2) can be conveniently discussed along with the evidence of the Investigating Officer.
23. The evidence of Ganesh Damodar Kulkarni (PW-3) - a Circle Inspector
- who has drawn the map (Exhibit-56) of the scene of offence is not very significant. He was cross-examined with respect to his inability to state the owners of the Gat numbers of the land that was covered by the said map.
24. The evidence of Dadasaheb Ramu Pandhare (PW-7) shows that on 20th October, 1989, Spot Panchnama (Exhibit 70) was drawn by the Police at about 7:00 a.m. His evidence shows that blood was found lying on the spot.
Some pieces of sticks, chappal and chutney were also found lying. Some broken pieces of bangles and some locks of hair were also found lying on the spot. That, PSI Mane (PW-12) took charge of these articles in the presence of this witness.
25. Daval Abu Sarvan (PW-8) is also a Panch in respect of the Panchnama of taking charge of the clothes of the Accused No.5 Ganapati and Accused ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 23 Dixit No.2 Ranga under a Panchnama (Exhibit 81). This witness has stated that there were stains of blood on the clothes of the accused. This witness also acted as a Panch on the same day with respect to the seizure of the clothes of the Accused No.3 Sopan. According to this witness, this was done under a Panchnama (Exhibit 86). According to him, there were blood stains on the Banian of the said accused.
26. The evidence of Vasant Dadu Jadhav (PW-10) - a Police Constable attached to Miraj Police Station at the material time - shows that at 3:10 p.m. on 19th October, 1989, Laxmibai (PW-4) had brought Sahadeo to the said Police Station and, that, after making an entry (Exhibit 89) in the Station House Diary, he directed Sahadeo to be taken to the Civil Hospital, Sangli. That, at 4:20 p.m., he received a phone message from Dr. Patil (PW-5) attached to the said Civil Hospital that Sahadeo has died. The witness has made an entry to that effect in the Station House Diary. His evidence further confirms the version of Laxmibai (PW-4) about having taken Sahadeo to the Miraj Rural Police Station before taking him to the Civil Hospital, Sangli.
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27. Kallappa Ramchandra Kambale (PW-11) was attached to the Miraj Gramin Police Station as Head Constable at the material time. His evidence shows that on 26th October, 1989, he carried the articles seized in the course of investigation in the present case to the Chemical Analyzer, Pune, under a forwarding memo (Exhibit 93). He also stated that he got a written acknowledgment with respect to the delivery of the said articles from the office of the Chemical Analyzer. The only suggestion given to him in the cross-examination is that his evidence that he received the property in a sealed condition was false, which suggestion has been denied by him.
28. Vasant Atmaram Chavan (PW-2) is a Panch Witness. According to him, on 20th October, 1989, he was called at the Miraj Gramin Police Station at about 11:30 a.m. and, that, in his presence the Accused No.1 Ashok and the Accused No.5 Ganapati disclosed certain information - separately -, pursuant to which certain articles were recovered by the Police. He has stated first about the Accused No.5 Ganapati that he made a certain statement and said that he would produce the sickle. According to him, the Police reduced the information given by the Accused No.5 Ganapati in writing and then the Police Party and the Panchas were led to the house of ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 25 Dixit the Accused No.5 Ganapati from where he produced a sickle which was kept at the Tulai. He has identified the sickle (Article 21) as the same which was taken charge of in his presence. He has then stated about the disclosure statement made by the Accused No.1, pursuant to which clothes that were lying in the gap between the two gunny bags kept in the house of Accused No.1 Ashok were recovered in the presence of this witness. He has stated that the clothes were having blood stains on them. After coming back to the Police Station, he also witnessed the disclosure statement made by the Accused No.4 Babaso, pursuant to which blood stained clothes were found from the shop of Sadalage situate in the market yard of Sangli. Even these clothes were stained with blood. According to this witness, the Accused No. 4 Babaso took out a cycle chain from the pocket of the Vijar and has identified the cycle chain (Article 25) as the same which was seized in the presence of this witness by the Police. He has identified the clothes produced before the Court as the same. His evidence has not been shaken in the cross-examination.
29. Lastly, coming to the evidence of the Investigating Officer (PW-12), he has stated about the manner in which investigation was carried out. He has ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 26 Dixit stated about the arrest of accused persons, the various Panchnamas drawn and the seizure of incriminating articles. He has also stated that the samples of the blood of the accused persons were taken and he has also stated about forwarding the seized articles to the Chemical Analyzer for analysis and opinion.
30. The cross-examination of this witness has not yielded anything in favour of the defence.
31. Thus, the evidence of Laxmibai (PW-4), in our opinion, is fully reliable and appears to be a truthful account of the happenings. The same is corroborated by the evidence of Sahadeo, which also we find reliable.
Additionally, the evidence of these witnesses gets support from the medical evidence and also from the evidence of Vasant Jadhav (PW-10) who made the entry (Exhibit 89). Further, the evidence of the witnesses about the involvement of the Appellants is corroborated by the seizure of incriminating articles at their instance or from them. The evidence is further corroborated by the Chemical Analyzer's report. The clothes of the accused persons were found to be containing stains of blood group "A" and "B". The ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 27 Dixit evidence shows that the group of the blood of Sahadeo was "A" and that of Laxmibai (PW-4) was "B". The group of the blood of Accused Nos.2 and 4 (Ranga and Babaso) was "O". Therefore, the stains of blood of Group "A"
and "B" should be found on their clothes is an incriminating circumstance against them. The group of blood of Accused Nos.3 and 5 (Sopan and Ganapati) was also "A", but there was no evidence that they had suffered any injury so as to consider the possibility of the blood of "A" group found on their clothes being their. The sickle recovered is also found to be containing stains of blood of group "A" and same is the case with the bamboo stick and cycle chain.
32. Thus, in our opinion, there is elinching and overwhelming evidence to establish the charge against the accused persons.
33. In fact, we find that the trial Court has very carefully gone through the entire evidence and has minutely scrutinized the same in the light of the contentions advanced before it by the Advocates for the accused. In fact, some obviously frivolous contentions have also been dealt with by the trial Court after discussing them in all seriousness and at length. Appreciation of ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 28 Dixit evidence, as done by the trial Court, is correct, legal, meticulous and we are in agreement with the appreciation of evidence as done by the trial Court.
34. Mr. Mankapure, the learned Advocate for the Appellants/Accused, also did not attempt before us to contend that the evidence adduced by the prosecution is not reliable, or, that it is suffering from any infirmities. All that he submitted is that the deceased was a man of strong built and people in the locality were scared of him. He submitted that the deceased was found in the land of the accused persons and that, therefore, there was every possibility that the deceased was an aggressor and that the accused were acting in self defence. He also submitted that since no pipe was found on the spot, the story that Sahadeo was carrying the pipe with him, when he was assaulted cannot be accepted. By this, he wanted to suggest that the actual reason for Sahadeo's presence on the spot could be something different.
35. We find no merit in these submissions. The non-recovery or non-
seizure of the pipe was a matter that was argued before the trial Court and the trial Court has rightly not given any importance to the same. The ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 29 Dixit Investigating Officer (PW-12) in his cross-examination has answered this by saying that he did not find any pipe on the spot. In our opinion, not only this does not falsify the version of the prosecution, but, on the contrary, shows that the investigation was done honestly and sincerely, without any attempt to fabricate evidence for bringing it in conformity with the version of the witnesses. There could be a number of reasons for the pipe not being found on the spot keeping in mind the time gap between the assault and the time of drawing Spot Panchnama.
36. The only aspect seriously canvassed by Mr. Mankapure, the learned Advocate for the Appellants/Accused, is that the deceased had died, apparently, due to the injuries caused to him by the Accused No.5 Ganapati, who, it is submitted, has died during the pendency of the present Appeal.
Mr. Mankapure submitted that the charge of an offence punishable under Section 302 of the Indian Penal Code cannot be properly established against the other accused, in as much as, there could be no common object of the assembly to commit murder of Sahadeo. He submitted that the other accused would not be liable to be convicted for murder with the aid of Section 149 of the Indian Penal Code and, that, they would be guilty only ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 30 Dixit with respect to the acts specifically performed by them.
37. In support of his contentions, he placed reliance on a decision of the Supreme Court of India in the case of State of Bihar Vs. Nathu Pandey & Ors., reported in AIR 1970 SC 27.
38. We find no merit in this contention. The evidence shows that all the accused are closely related to each other and, that, all came to the scene of offence together. All of them were armed. All of them took active part in assaulting Sahadeo. Totally 35 visible injuries were caused to Sahadeo.
Further, Laxmibai (PW-4) was also badly assaulted causing a number of injuries including 'grievous hurt' to her. The assault was continued in spite of Laxmibai's attempts to cover up the body of Sahadeo and though Sahadeo had fallen down. The decision of the Supreme Court relied upon by Mr. Mankapure does not assist him, in as much as, the facts of that case, as reflected from the reported judgment, indicate that the assembly alleged to be unlawful in that case was perhaps formed for the purpose of invoking the right of private defence. In this case, there is no question of invocation of any right of private defence by the accused persons who were armed, five ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 31 Dixit in number against Sahadeo, who was alone and unarmed. The finding of the trial Court that the evidence showed that all the accused had formed an unlawful assembly, the common object of which was to beat Sahadeo to death, appears to be proper and correct to us. The reasoning of the trial Court in that regard found in para 23 of the judgment appears to be proper and correct to us. We, therefore, have no doubt whatsoever that all the accused are liable for murder of Sahadeo by virtue of the provisions of Section 149 of the Indian Penal Code.
39. We may add that Section 149 is much wider than Section 34 of the Indian Penal Code. Section 149 does not require any "previous meeting of minds" of the accused persons. Once it is established that an unlawful assembly had been formed and once it is established that an offence is committed by anyone or more members of the assembly in prosecution of the common object of the unlawful assembly, all the members of the assembly would be liable for offence, irrespective of whether they have performed any overt act in the offence. Section 149 and Section 34 of the Indian Penal Code may some times overlap and in this case we find that the evidence is sufficient to justify the conviction of the Appellants even with ::: Downloaded on - 09/06/2013 17:51:58 ::: Apeal-414-91 32 Dixit the aid of the provisions of Section 34 of the Indian Penal Code. Clearly all the accused who took active part in the assault were acting in furtherance of the common intention of all of them.
40. Consequently, we find no merit in the Appeal. The impugned judgment and order is proper and legal. We find that the learned Judge has meticulously gone through the evidence and has considered each and every contention raised by the defence and has come to a proper conclusion with respect to the facts as well as the legal position. The question of interfering with the impugned judgment and order, therefore, does not arise.
41. The Criminal Appeal is dismissed.
(A.M. THIPSAY, J.) (V.M. KANADE, J.)
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