Bombay High Court
Shivaji Sakharam Bhumre vs The State Of Maharashtra on 6 December, 2010
Author: A.V.Potdar
Bench: P.V.Hardas, A.V.Potdar
{1} Cri. Appeal 158/2008
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.158 OF 2008
WITH
CRIMINAL APPEAL NO.168 OF 2008
WITH
CRIMINAL APPEAL NO.193 OF 2008
WITH
CRIMINAL APPEAL NO.89 OF 2009
WITH
CRIMINAL APPEAL NO.406 OF 2009
ig WITH
CRIMINAL APPEAL NO.618 OF 2009
WITH
CRIMINAL APPEAL NO.695 OF 2008
XXXXX
CRIMINAL APPEAL NO.158 OF 2008
1. Shivaji Sakharam Bhumre APPELLANTS
Age-22 years, Occ-Agriculture
R/o Singi, Tq-Basmat
Dist-Hingoli
2. Bhagwan Dajiba Bhumre
Age-30 years, Occ-Agriculture
R/o Singi, Tq-Basmat
Dist-Hingoli
VERSUS
The State of Maharashtra RESPONDENT
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{2} Cri. Appeal 158/2008
.......
Mr.Swapnil Rathi, Advocate for appellants
Mr.D.R.Kale, APP for respondent State
.......
WITH
CRIMINAL APPEAL NO.168 OF 2008
1. Uttam s/o Maroti Bhumre APPELLANTS
Age-60 years, Occ-Agriculture
2. Rajabhau Dattarao Gabare
Age-44 years, Occ-Agriculture
Both presently in Harsul Jail
R/o Singi, Tq-Basmat
Dist-Hingoli
VERSUS
The State of Maharashtra RESPONDENT
.......
Mrs.S.S.Jadhav, Advocate for appellants
Mr.D.R.Kale, APP for respondent State
.......
WITH
CRIMINAL APPEAL NO.193 OF 2008
1. Sitaram s/o Pandurang Gabare APPELLANTS
Age-30 years, Occ-Agriculture (Deleted)
R/o Singi, Tq-Basmat
Dist-Hingoli
2. Chandu s/o Narayan Gabare
Age-42 years, Occ-Agriculture
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{3} Cri. Appeal 158/2008
Both R/o Singi, Tq-Basmat
Dist-Hingoli
VERSUS
The State of Maharashtra RESPONDENT
Through Police Station Officer,
Police Station, Basmath, Dist-Hingoli
.......
Mr.S.S.Chaudhari, Advocate for appellants
Mr.D.R.Kale, APP for respondent State
ig .......
WITH
CRIMINAL APPEAL NO.89 OF 2009
Saheb s/o Maroti Bhumre APPELLANT
Age-35 years, Occ-Nil
R/o Central Prison, Aurangabad
VERSUS
The State of Maharashtra RESPONDENT
.......
Ms.Kalpana Mutatkar, Advocate for appellant (Appointed)
Mr.D.R.Kale, APP for respondent State
.......
WITH
CRIMINAL APPEAL NO.406 OF 2009
Sambhaji s/o Deorao Gabare APPELLANT
Age-37 years, Occ-Agriculture
R/o Singi, Tq-Basmat
Dist-Hingoli
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{4} Cri. Appeal 158/2008
VERSUS
The State of Maharashtra RESPONDENT
.......
Mr.S.S.Deve , Advocate for appellant (Appointed)
Mr.D.R.Kale, APP for respondent State
.......
WITH
CRIMINAL APPEAL NO.618 OF 2009
Sitaram Pandurang Gabare
ig APPELLANT
Age-30 years, Occ-Service
R/o Singi, Tq-Basmat
Dist-Hingoli
VERSUS
The State of Maharashtra RESPONDENTS
.......
Mr.Joydeep Chatterjee, Advocate for appellant
Mr.D.R.Kale, APP for respondent State
.......
WITH
CRIMINAL APPEAL NO.695 OF 2008
Khemaji s/o Maroti Gabare APPELLANT
Age-27 years, Occ-Agriculture
R/o Singi, Tq-Basmatnagar
Dist-Hingoli
VERSUS
The State of Maharashtra RESPONDENTS
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{5} Cri. Appeal 158/2008
.......
Mr.S.B.Pulkundwwar, Advocate for appellant
Mr.D.R.Kale, APP for respondent State
.......
[CORAM : P.V.HARDAS, AND
A.V.POTDAR, J.J.]
DATE : 6th December 2010
JUDGMENT (PER A.V.POTDAR, J.):
1. The appellants, who are convicted for the offence punishable u/s 148 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year, further convicted for an offence punishable u/s 324 r/w 149 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year and also convicted for an offence punishable u/s 302 r/w 149 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.1000/- each, in default to suffer further RI for four months, and are ordered to undergo all the substantive sentences concurrently, in Sessions Case No.20/2006, vide judgment and order dated 24.08.2008, by the Additional Sessions Judge, Basmathnagar, have questioned the correctness and legality of the said judgment and order. All these appeals arise out of the common judgment and order passed in Session Case No.20/2006 and hence they are being disposed of by this common judgment.
2. Such of the facts, as are necessary for the decision of ::: Downloaded on - 09/06/2013 16:40:29 ::: {6} Cri. Appeal 158/2008 all these appeals, may briefly be stated thus.
a) On 08.04.2006, at about 8.00 p.m., one Kashinath Bhumre (PW-10) resident of village Singi, informed police constable Shankar Ingole, who was attached to Shirad Shahapur police out post, that some quarrel had taken place near the house of Madhav Gabare and in turn, police constable Ingole passed the message to API S.S.Rathod (PW-14), who was attached to Kurunda police station. Police Constable Ingole, had also informed that one person is expired and that he was carrying the injured persons to Basmath Rural Hospital. Accordingly, PW-14, API S.S. Rathod, visited the Basmath Rural Hospital and recorded Statement (Exhibit-111) of Jankabai Madhavrao Gabare (PW-1). The said statement (Exhibit-111) was treated as the First Information Report. Thereafter, an offence at Crime No. 36/2006 was registered for the offence punishable u/s 147, 148, 149, 302, 326 and 452 of the Indian Penal Code, against the appellants and others.
b) Thereafter, the investigation was taken over by PW-14 API S.S.Rathod. The accused, whose names were disclosed in the FIR, Uttam, Khemaji, Sambhaji, Radhaji, Sitaram and Sahebrao, were put under arrest on 09.04.2006 and clothes on their persons were seized under seizure Panchanama (Exhibit-160 to Exhibit-165). Thereafter spot Panchanama ::: Downloaded on - 09/06/2013 16:40:29 ::: {7} Cri. Appeal 158/2008 (Exhibit-144) was drawn in presence of the witnesses and 3 axes, knifes, sticks, part of plough and soil mixed with blood and plain soil was seized from the spot of the incident.
Thereafter, inquest Panchanama (Exhibit-139) on the dead body of Madhav Krishnaji Gabare was drawn.
c) The dead body was sent for Postmortem to the Primary Health Centre Shirad Shahapur. Post Mortem was conducted by Dr.Prashant Somani on 09.04.2006. Dr.Somani noticed the following external injuries on the dead body.
i) Fracture at Nasal Bridge around 3 cm horizontal by blow ć sharp spliling edge weapon
ii) Fracture of forehead above left upper eyelid around 4 cm horizontal
iii) Chop laceration ć fracture of heard axcund 12 cm vertical around 10 cm above left ear caused by sharp edge weapon.
iv) Chop laceration (fracture) of hard around 14 cm above left ear, vertical size around 8 cam occurred by sharp edged edge weapon.
v) Incise injury behind right ear 5X2 cm in size caused by sharp cutting edge weapon
vi) incised injury on right ala ear 3 x 2 cm caused by sharp cutting edge weapon.
vii) incised injury on occipital region horizontal around 8 x 2 cm occurred by sharp cutting edge ::: Downloaded on - 09/06/2013 16:40:29 ::: {8} Cri. Appeal 158/2008 weapon.
viii) incised injury behind left ear 6 x 2 cm caused by sharp cutting edge weapon.
ix) Abrasion on left elbow joint 3 x 2 cm all injuries are not more than 24 hours old.
On internal examination of the dead body, Dr.Somani noticed the that there was injury to brain of intra cranial hemorrhage present as suborchanoid and intra cerebral hemorrhage with torned blood vessels. Dr.Somani opined that the cause of death is due to head injury and intra cranial hemorrhage multiple fracture, which is homicidal one.
d) In the said incident total 9 persons were injured and out of them some were referred to Shirad Shahapur Primary Health Center and some were treated at Basmat Rural Hospital.
e) While in custody, accused/appellant Khemaji made a disclosure statement (Exhibit-167) in presence of Pancha witnesses, which led to recovery of some sticks concealed beneath a bridge at Wai. The said articles were seized. Total 22 persons, including the present appellants were arrested in connection with the said offence. During the investigation statements of certain witnesses, including the injured ::: Downloaded on - 09/06/2013 16:40:29 ::: {9} Cri. Appeal 158/2008 witnesses, were recorded. The Muddemal property recovered and seized during the investigation was forwarded to the Chemical Analyzer along with forwarding letter, on 18.04.2006.
f) On 19.04.2006, investigation of the said crime was entrusted with Ganesh Sambhaji Jawadwad (PW-15).
Jawadwad arrested one Renukabai and Balu @ Maroti and also recorded statements of certain other witnesses. After completion of the investigation and on receipt of the injury certificates and CA report, charge sheet was submitted by the investigating officer before the JMFC, Basmathnagar.
JMFC, Basamthnagar, after passing the requisite committal order, committed the matter to the Court of Additional Sessions Judge, Basmathnagar.
g) Additional Sessions Judge, Basmathnagar, framed charge (Exhibit-70) against the appellants and others for an offence punishable u/s 302 r/w 149, 307 r/w 149, 326 r/w 149, 452 r/w 149, 147 and 148 of the Indian Penal Code. All the accused denied the guilt and claimed to be tried. To substantiate the charges leveled against the accused, the prosecution examined in all 16 witnesses including -
Janakabai - complainant - injured witness and wife of deceased Madhavrao; Sumanbai Gabare and her husband Deorao; Kamal Gabare-injured eye witness and her husband ::: Downloaded on - 09/06/2013 16:40:29 ::: {10} Cri. Appeal 158/2008 Govind; Tauji Gabare - an injured eye witness; Dr.Prashant Somani- Medical Officer who performed the PM on the dead body of deceased Madhavrao and had also examined injured persons; Dr.Prashant Kharate, who had examined other injured witnesses and had issued medical certificates accordingly; Ganesh Madhav Gabare - an injured eye witness and son of deceased Madhavrao; Kashinath Bhumre
- who had passed on the message on mobile phone to Police Constable Ingole about the said incident; Shankar Bhumre -
A Pancha witness to the Panchanama of place of offence;
Sitaram Ingole - A Pancha witness to the seizure of clothes on the persons of the accused persons; Sanjay Chavan - a Pancha witenss to the seizure of clothes on the persons of the injured persons and Pandurang Salunke - A Pancha witness to the memorandum statement of accused Khemaji.
h) On appreciation of the evidence, the trial court convicted the present appellants for the offence punishable u/s 302 r/w 149, 324 r/w 149 and u/s 148 of the Indian Penal Code and acquitted all the accused for an offence punishable u/s 147, 307, 452 r/w 149 of the Indian Penal Code. The trial Court also acquitted some of the accused persons other than the appellants for an offence punishable u/s 148, 302 r/w 34 of the Indian Penal Code. The said judgment is impugned in the present appeals.
::: Downloaded on - 09/06/2013 16:40:29 ::: {11} Cri. Appeal 158/20083. Admittedly, the State has not preferred any appeal challenging the acquittal of the remaining accused persons.
4. Before we embark upon the submissions advanced by learned counsel for the parties, it is necessary to advert to the evidence of material witnesses, recorded during the trial.
5. It is in the evidence of Dr.Prashant Somani (PW-6), who was attached to Primary Health Center, Shirad Shahapur as Medical Officer on 09.04.2006, that considering the injuries on the person of deceased Madhavrao he has opined that his death is a homicidal one. Since the factum that death of Madhavrao is a homicidal one is not seriously disputed by the appellants before the trial court nor before this Court, we need not dilate on this aspect of the evidence.
6. It is in the evidence of Janakabai PW-1 that deceased Madhavrao was her husband. He was Sarpanch of the village Singi about 15 years prior to the incident and since then accused Khemaji and Sambhaji were on cross terms with him. Later on Laximibai became Sarpanch of the village, who is wife of Nagorao, nephew of the deceased. Since Laximibai became Sarpanch, again accused Khemaji and Sambhaji took out quarrel with the deceased. The incident took place on 08.04.2006 at about 7.30 p.m. At that time she was present in her house along with her husband deceased Madhavrao, her daughter in law-Annapurnabai ::: Downloaded on - 09/06/2013 16:40:29 ::: {12} Cri. Appeal 158/2008 and son Ganesh. At that time, accused Khemaji and Sambhaj came to the door of their house and the remaining accused followed them. Accused Chandu had caught hold of the hands of the deceased, accused Khemaji, accused Sahebrao and accused Sitaram assaulted her husband with axe, accused Uttam assaulted him with katti while accused Rajabhau assaulted him with scythe.
Rest of the accused were holding sticks in their hands. Deceased sustained injuries on his face, head, ear and back. Deceased expired on the spot. She had further stated that some of the accused also assaulted her with sticks so also to her daughter in law-Annapurnabai and son Ganesh. She has further stated that the accused persons also assaulted other persons, who were present there. She has also stated that one of the accused picked up small daughter of Govind from a cradle and throw her away.
Thereafter all the accused fled from the spot. Injured Ganesh and Govind were referred to Rural Hospital, Basmthnagar from where they were taken to civil hospital, Nanded. She was also taken to the hospital where in the night between 8th and 9th April 2006, her statement (Exhibit-111) was recorded.
7. She has stated in her cross examination that her father in law Krishnaji had 5 sons including her husband-
Madhavrao, Deorao, Tauji, Maroti and Rangnath. Accused Khemaji is son of Maroti and accused Sambhaji is son of Deorao. They had two houses in that area which were facing to each other. There is one road in between the two houses. The houses of accused ::: Downloaded on - 09/06/2013 16:40:29 ::: {13} Cri. Appeal 158/2008 Khemaji and Sambhaji are situated on one side of their house.
Accused Sambhaji had filed a criminal complaint against Ganesh, Pravin and Govind. There was long standing dispute between the deceased on one side and accused Khemaji and Sambhaji on the other side, since last 15 years. However, no case was ever filed against each other during the said period. Their relations were cordial with the remaining accused till 08.04.2006 i.e. the day of the incident. In further cross examination she has admitted that there was load shedding in the said village at the relevant time.
However, she denied the suggestion that there was darkness due to the load shedding and hence she was unable to identify the assailants, as according to her there was sufficient moon light at the relevant time and, therefore, she could identify the assailants.
She has further admitted that Ganesh had been to village Wagi for dinner at the relevant time and her son Pravin was out of the house at that time. Certain omissions are proved in her cross examination viz i) accused Khemaji and Sambhaji first came to the door of their house, who were followed by other accused ii) Accused Chandu had caught hold of both the hands of the deceased from behind iii) accused Uttam assaulted the deceased with Katti and accused Rajabhau assaulted him with scythe iv) one of the accused had picked up daughter of Govind from cradle and had thrown her away and v) Accused Khemaji and Sambhaji again took up quarrel with the deceased after Laxmibai became Sarpanch of the village. She has further stated in the cross examination that she had sustained bleeding injuries on head and back. In her ::: Downloaded on - 09/06/2013 16:40:29 ::: {14} Cri. Appeal 158/2008 further cross examination she has admitted that after her husband was assaulted by the accused persons, they assaulted her and hence she became unconscious and regain her consciousness in the hospital. Kashinath and Nagorao shifted her and others to the hospital with the help of police. During the assault on the deceased, no female members went to rescue the deceased so also nobody had came to rescue them. According to her she has no knowledge as to whether in the said incident accused had also sustained injuries or not.
8. It is in the evidence of Kamalbai (PW-4) that on the date of the incident she was present in the house of deceased Madhavrao along with others. All the accused came there with sticks and axes and assaulted deceased Madhavrao. Accused Uttam, Sambhaji, Khemaji and Sitaram assaulted deceased with sticks and axes. In the said assault deceased sustained injuries on his back, ear, head and chest. Thereafter, these accused assaulted her and Ganesh while accused Uttam, Sambhaji, Sitaram and Bhagwan assaulted Janakabai and accused Sahebrao assaulted her father in law. In the said incident accused persons also assaulted Gangabai, Annapurna, Sumanbai, Bapurao and Govind and then the accused fled from the spot. She and other injured persons were taken to Hospital. Madhav expired on the spot.
9. In her cross examination she has admitted that at the time of incident she and her father in law were only present in the ::: Downloaded on - 09/06/2013 16:40:29 ::: {15} Cri. Appeal 158/2008 house and later on her husband Govind came in the house.
Certain omissions are proved in her cross examination that at the time of the incident she was present in the house of Madhav along with Janakabai and others. Accused Uttam and Sambhaji assaulted her with sticks accused Sahebrao had chilly powder with him, which he thrown in her eyes she was unable to see as to what was going on. She has further admitted in her cross examination that she became unconscious after she was assaulted. Omission was also stand proved in her further cross examination that accused Uttam, Sahebrao, Sitaram and Sambhaji assaulted her.
Omission is also duly pointed out that she has stated before the police that accused Uttam, Khemaji, Sambhaji and Sitaram assaulted the deceased. She has stated in the statement before the police that she saw injuries on the head, ear, back and chest of the deceased. In her further cross examination further omission is proved that she has stated before the police that accused Sambhaji, Sitaram and Bhagwan assaulted Janakabai. She denied that during the said incident Ganesh, Pravin and Govind had assaulted Sambhaji. In further cross examination she has admitted that on the next day of the incident she had been to the hospital around 8.00 a.m. and then was medically examined. She was present at the time of the spot Panchanama.
10. It transpired from the evidence of PW-5 Govind that deceased Madhavrao was his uncle and two years prior to the incident, Laxmibai was became the Sarpanch of the said village ::: Downloaded on - 09/06/2013 16:40:29 ::: {16} Cri. Appeal 158/2008 and since then there was dispute between the complainant party and the accused party. The incident took place on 08.04.2006 at about 7.30 or 8.00 p.m. at the house of the deceased. At that time, he had just came to his house, after closing his shop. He saw all the accused assaulting the deceased with sticks and axes. Accused Chandu had caught hold of the hands of the deceased while accused Sahebrao, Sitaram and Khemaji were giving axe blows to the deceased. Accused Uttam gave blow of Katti and Rajabhau gave blow of a scythe to the deceased and due to the said assault the deceased had fallen on the ground. This witness tried to pacify the situation and in that process accused Sahebrao and Uttam assaulted him with sticks and hence he had sustained bleeding injuries on head. Deceased expired at the spot. This witness felt giddiness due to assault on him and he also fall down. Even thereafter also the accused had assaulted him with sticks. One Rukiminibai threw chilly powder in his eyes and she was instigating other assailants that they should not leave the place unless somebody is killed. In his cross-examination he has admitted that in that evening he was dropped at the place by one Baliram, on motorcycle and then Baliram had left the spot.
Baliram had not seen the incident. The incident started about half an hour after he reached at his house. He has admitted that he belonged to the party of the deceased. Certain omissions are brought on record in his cross-examination like there is no reference in his statement given before the police that all the accused were armed with sticks and axes when they started ::: Downloaded on - 09/06/2013 16:40:29 ::: {17} Cri. Appeal 158/2008 assaulting the deceased, accused Chandu had caught hold of the hands of the deceased at the back side when he witnessed the incident and that the deceased remained in the same position during the assault on him by the remaining accused. He did not remember as to whether he had stated in the statement before Police that Uttam and Rajabhau assaulted the deceased with Katti and scythe. Accused Sahebrao and Uttam assaulted him when he intervened and tried to pacify the situation, when they were assaulting the deceased. He has also admitted that in his statement recorded by the police he had not stated that accused Rukminibai had thrown chilly powder in his eyes. He has further admitted that he and Ganesh were kept in one room of the hospital till they were discharged, however during that period no discussion had taken place amongst themselves about the incident of assault.
11. It is in the evidence of PW-8 Ganesh that deceased Madhavrao was his father and the incident took place at about 7.30 to 8 p.m. and at that time he was present in the house along with his mother, father, brother and wife. He has further stated that at that time all the accused, armed with axes and sticks, came to his house and started assaulting his father and when he and his wife Annapurna tried to rescue his father, they were also assaulted by the accused with sticks, therefore, they ran away from the spot towards the house of Namdeo where Uttam, Sahebrao, Khemaji and Bhagwan followed them. Uttam and Sahebrao gave blow of axe on his head. Due to the assault he fall down and when ::: Downloaded on - 09/06/2013 16:40:29 ::: {18} Cri. Appeal 158/2008 he requested for water, the accused persons told that they would urinate in his mouth. Thereafter he became unconscious and was taken to civil hospital, Nanded where he regained consciousness.
In his cross examination he has admitted that he had not stated in the statement given before the police that at the time of the incident he was present in his house along with his father, mother, brother and wife, as according to him as he was not asked by the police. Omission has been proved in his statement that in his statement, recorded by the police, he does not disclose that when he and his wife tried to rescue the deceased, the accused assaulted them with sticks. Likewise, that accused Bhagwan and Khemaji assaulted them during the incident. He does not remember as to whether he had stated before the police that Uttam and Sahebrao assaulted on his head with axe. He denied the suggestion that he had not seen the actual incident.
12. In this backdrop heard the submission advanced by the learned counsel for the respective parties.
13. Learned counsel for the appellants in Appeal No. 158/2008 has urged before us that from the evidence on record it is crystal clear that none of the eye witness has referred either presence or participation of appellant Shivaji. It is further urged that though there is passing reference in the evidence of PW-4 about the assault by accused Bhagwan so also in the evidence of PW-8 there is reference about the assault by accused Bhagwan, yet ::: Downloaded on - 09/06/2013 16:40:29 ::: {19} Cri. Appeal 158/2008 omissions are proved in their cross-examinations that they have not disclosed the said facts in their statements recorded by the police. Therefore, it is urged that the appellants Shivaji and Bhagwan be acquitted of the charge, by allowing the appeal.
14. Learned counsel for the appellants in appeal No. 168/2008 has urged that the alleged motive behind the said incident is the dispute over the Gram Panchayat election, however the Gram Panchayat election were held about 2 years prior to the incident and hence it cannot be said that the said election was the motive behind the incident. It is urged that there is inconsistency in the evidence of prosecution witnesses about the weapons held by individual accused and the role alleged against them. It is further urged that though total 9 persons were alleged to be injured in the said incident yet, all the injured are not examined by the prosecution. It is further urged that the witnesses examined are interested witnesses and are close relatives of the deceased and no independent witness has been examined by the prosecution and hence there is suppression of genesis of the incident. It is also urged that the prosecution witnesses have admitted that at the time of incident there was load shedding in the village and hence identification of the appellants is doubtful. It is further urged that the evidence about the alleged role played by accused Uttam and Rajabhau in respect of assault on deceased by Katti and scythe has to be discarded as in the evidence of PW-1 and PW-5, these omissions have been stood proved and also corroborated from the ::: Downloaded on - 09/06/2013 16:40:29 ::: {20} Cri. Appeal 158/2008 evidence of the investigating officer. It is also urged by the learned counsel for the appellants that note has to be taken of the fact that the dead body was lying at the spot till 6 a.m. on the next day while the injured persons were shifted to the hospital immediately.
15. Learned counsel for the appellant Chandu in criminal appeal No.193/2008 has urged that the role alleged against this appellant is only finds place in the evidence of PW-1 Janakibai and PW-5 Govind, which are stand proved omissions in their statements before the police. In the circumstances, according to learned counsel for the appellant, due to the proved omissions there is no evidence against appellant Chandu and, therefore, appeal No.193/2008 be allowed and the appellant be acquitted.
16. Learned counsel for the appellant Khemaji in criminal appeal No.695/2008 has adopted the submissions advanced on behalf of the learned counsel for appellants in criminal appeals No. 168/2008 and 618/2009. In addition to that it is urged that appellant Khemaji has been falsely implicated in the present case due to political rivalry. The motive behind the said crime was not established. The specific role alleged against the appellant does not find in the evidence of the eye witnesses. According to the learned counsel for the appellant, the injuries on the person of the appellant were not explained by any of the prosecution witnesses.
PW-1, 4 and 5 have deposed against this appellant, however evidence of PW-4 and PW-5 is not reliable and hence the conviction ::: Downloaded on - 09/06/2013 16:40:30 ::: {21} Cri. Appeal 158/2008 cannot be based on the sole testimony of PW-1 Janakibai, without any corroboration, therefore the evidence of PW-1 be discarded against the appellant Khemaji and he be acquitted of the charges.
17. Learned counsel for the appellant Sitaram in criminal appeal No.618/2009 has urged on the similar lines with the arguments of learned counsel for appellant in appeal No.158/2008.
Additionally, it is urged that evidence of PW-4, PW-5 and PW-8 is not reliable for the omissions proved in their evidence. According to the learned counsel for the appellant if the evidence of PW-4, PW-5 and PW-8 is discarded then only remains the evidence of PW-1 Jankibai and conviction cannot be based on the sole testimony of PW-1 Janakibai. According to him, nothing was recovered at the instance of the appellant, however the alleged weapons used by appellant Sitaram were found at the place of incident and hence prayed that the conviction of the appellant, which is based on the sole testimony of PW-1, be quashed and set aside and benefit of doubt be given to him and he be acquitted.
18. Learned counsel for the appellant Saheb in Criminal Appeal No.89/2009 has urged that the evidence against appellant Saheb is evidence of PW-1 Janakibai and PW-5 Govind. On perusal of the evidence of these witnesses it is clear that the same has not be supported by PW-4 and PW-8. According to learned counsel for appellant Sahebrao, the conviction against the present appellant rests on the sole testimony of PW-1 Janakibai and hence in ::: Downloaded on - 09/06/2013 16:40:30 ::: {22} Cri. Appeal 158/2008 absence of any corroboration the testimony of the sole witness Janakibai not to be accepted and the appeal be allowed and appellant be acquitted.
19. It is urged by learned counsel for appellant Sambhaji in criminal appeal No.406/2009 that only PW-1 Janakibai has deposed against appellant Sambhaji and her version in respect of this appellant is not supported by the evidence of other eye witnesses. It is urged that PW-1 has stated that when she was present in her house along with her husband (deceased) and daughter in law (Annapurna) at that time appellant Sambhaji came there along with accused No.2 and they were followed by the remaining accused, who assaulted the deceased. It is further urged that careful scrutiny of the evidence of PW-1 Janakibai reveals that appellant Sambhaji was only present there, however, no overt act or participation is alleged against him. Therefore, according to learned counsel for appellant Sambhaji, he cannot be termed as a member of an unlawful assembly, common object of which was to commit murder of Madhavrao, and hence it is requested to allow the appeal and acquit appellant Sambhaji.
20. Learned APP supported the judgment of conviction and urged for dismissal of all the appeals and confirmation of the conviction of the appellants.
21. In the light of the submissions of the learned counsel ::: Downloaded on - 09/06/2013 16:40:30 ::: {23} Cri. Appeal 158/2008 for the respective parties, close scrutiny of the evidence of PW-1, Janakibai, PW-4 Kamalbai, PW-5 Govind and PW-8 Ganesh is necessary. On careful scrutiny of the evidence on record and in view of the fact that there is no serious dispute about the fact that death of Madhavrao is a homicidal one, the same need not be discussed by us. However now the question requires consideration is as to whether the appellants were the members of unlawful assembly armed with deadly weapons with common object to commit murder of Madhav or not. Admittedly, the dead body of Madhav was found in the Courtyard of his house and this fact is also proved by Spot Panchanama (Exhibit-144) and not even seriously disputed on behalf of the appellants. Admittedly, there was fencing to the courtyard in front of the house of the deceased.
Admittedly, Pravin and Annapurna are not examined by the prosecution. However, fact remains that from the evidence of PW-1 Janakibai and PW-8 Ganesh that at the time of the alleged incident, Ganesh, Janakibai, Annapurna and Pravin were present in their house. Thus, it is clear that at the time of the alleged incident PW-4 Kamal and her husband PW-5 Govind were not present there and when they arrived at the spot and witnessed the incident has not been stated by PW-4 and PW-5 in their evidence.
In this light of the matter and considering the proved omissions in the evidence of PW-4 and PW-5 it cannot be inferred that PW-4 and PW-5 are the witnesses to the alleged incident. Now, requires the scrutiny of evidence of PW-8 Ganesh, son of the deceased. It has to be noted that on carefully scrutiny of evidence of Ganesh it is clear ::: Downloaded on - 09/06/2013 16:40:30 ::: {24} Cri. Appeal 158/2008 that he has not stated about the assault on deceased, which has resulted in his death. On this count alone, as his evidence is silent on the point of assault on the deceased, the evidence of PW-8 Ganesh requires to be discarded. Now remained the evidence of PW-1 Janakibai.
22. In our view, presence of PW-1 Janakibai at the place and time of the incident is quite natural, as she is wife of the deceased and hence there is no doubt in our mind about presence of PW-1 Janakibai at the place and time of the incident. Secondly, from the facts brought on record in the evidence of PW-1 Janakibai it is clear that the assailants are close relatives and residents of the same village in the vicinity and, therefore, identification of the assailants on her part though there was load shedding, cannot be termed as doubtful.
23. At this stage, we may usefully refer to the observations of the Apex Court in the matter of "Yakub Ismail Bhai Patel V/s State of Gujrat" (2004) 12 SCC 229. The Apex Court has observed in the said judgment as follows:
"45. The legal position in respect of the testimony of a solitary eyewitness is well settled in catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the rule of caution and such corroboration from other evidence and ::: Downloaded on - 09/06/2013 16:40:30 ::: {25} Cri. Appeal 158/2008 even in the absence of corroboration if testimony of such single eyewitness inspires confidence then conviction can be based solely upon it. In the case on hand, the testimony of the solitary eyewitness stands corroborated by other circumstances and evidences and more particularly PW1 whose testimony has been relied upon by both the courts."
24. It may also useful to refer to the observations of the Apex Court in the matter of "Shivaji Sahabrao Bobade V/s State of Maharashtra" (1973) 2 SCC 793. The Apex Court, in the said judgment has observed thus-
"19. Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Informing ourselves of these important principles we analyze the evidence found good by us. In our view there is only one eye witness, PW5 Vilas. Even if the case against the accused hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witness have to be weighed and not counted since quality matters more than quantity in human affairs. We are persuaded that PW5 is a witness for truth but in view of ::: Downloaded on - 09/06/2013 16:40:30 ::: {26} Cri. Appeal 158/2008 the circumstances that he is interested we would still want corroboration in this case to reassure ourselves.
And that we have in this case."
25. On careful scrutiny of the evidence of PW-1 Janakibai, we find that her presence at the place of incident at the relevant time is natural and what she has witnessed is also reliable. No doubt, in her evidence, she has embroidered the story, yet that does not mean that her evidence is not totally reliable. It is required to be considered that her material evidence about the assault on the deceased, at least at the hands of 3 persons i.e. Khemaji, Sitaram and Sahebrao, who have assaulted the deceased with axes, is not shaken. PW-1 has not alleged any overt act or active participation to appellant Sambhaji, who had initially accompanied Khemaji. So far as role alleged by PW-1 to appellant Uttam, Rajabau are concerned, the same is proved as omission. In the premise, the assault on the deceased by appellant Khemaji, Sahebrao and Sitaram to be accepted as stand proved. Even the injuries found on the persons of the deceased were the injuries which could be caused by weapons like axe, as opined by the Medical Officer Dr.Somani.
26. In the light of the above discussion, now it requires to consider as to whether the said assault on the deceased by Khemaji, Sahebrao and Sitaram, along with others, was as members of the unlawful assembly in furtherance of their common intention to commit murder or not. In other words, whether they ::: Downloaded on - 09/06/2013 16:40:30 ::: {27} Cri. Appeal 158/2008 were the members of the unlawful assembly or not.
27. In this respect, the observations of the Apex Court in the matter of "Masalti & others V/s The State of Utter Pradesh"
AIR 1965 SC 202, may usefully be referred. The Apex Court has given a test to find out as to whether the person is a member of the unlawful assembly or not. The Apex Court, in the said judgment, has observed thus -
"That the mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under S.142 IPC cannot be read as laying down a general proposition of law that unless as overt act is proved against a person who is alleged to be a member of an unlawful assembly , it cannot be said that he is a member of such an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by S.141 IPC. An assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of S.141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by S.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had ::: Downloaded on - 09/06/2013 16:40:30 ::: {28} Cri. Appeal 158/2008 joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact, S.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. The observations in (S) AIR 1956 S.C. 181, Explained."
28. The Apex Court, in the matter of "Prabhakar Shankar Sawant V/s State of Maharashtra" AIR 1979 SC 1265, has observed that it is necessary for the prosecution to prove that the accused were members of the unlawful assembly at the time when the assembly became unlawful. The Apex Court, in the said judgment has observed thus -
"Before the accused could be convicted of sharing the common object of the assembly or of being members of the same at a time when the assembly became unlawful, it had to be proved by the prosecution that the accused were members of the unlawful assembly at the time when the assembly became unlawful and started pelting stones. If there is no evidence of identification of accused at the stage when the morcha became unlawful it cannot be explained away by presuming that as the morcha moved on it must be presumed to be unlawful and any person who was a member of that assembly must be presumed to share the common object of the ::: Downloaded on - 09/06/2013 16:40:30 ::: {29} Cri. Appeal 158/2008 unlawful assembly. This is overstating the law on the subject. Before the Court is satisfied that an accused is a member of an unlawful assembly it must be shown either from his active participation or otherwise that he shared the common object of the unlawful assembly. It is not necessary that the accused should be guilty of any overt act. It is sufficient if it is shown that as a participant of the unlawful assembly he was sharing the common object of the same."
29. It is observed by the Apex Court in the matter of "Musakhan V/s State of Maharashtra" AIR 1976 SC 2566 has observed thus-
"A mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus a Court is not entitled to presume that any and every person who is proved to have been present near a ritous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages.
Where in a riot case although all the incidents starting from the beginning to the end were parts of the same transaction but nevertheless they were separate ::: Downloaded on - 09/06/2013 16:40:30 ::: {30} Cri. Appeal 158/2008 incidents, and some accused were found to be members of unlawful assembly at one particular stage but not at another, in these circumstances, the accused who were not present or who did not share the common object of the unlawful assembly at other stages could not be convicted for the activities of the assembly at those stages."
30. This principle is also followed in the matter of "Debashis Daw V/s State of West Bengal" (2010) 9 SCC 111.
The Apex Court has observed thus -
"25. Where large number of persons are implicated collectively, the courts must insist for something more than their being cited as an accused in order to convict them fort he charge of the offence. It is well settled and needs no restatement at our hands that mere presence of the persons at the scene of offence itself would not be enough to convict them and punish under section 149 IPC unless it it established that each one of them was part of the unlawful assembly and committed the offence in prosecuting of the common object of that assembly. In all such cases, the question who had committed the overt act is of no consequence.
26. This Court in Akbar Shaikh observed that the prosecution in case of this nature is required to establish : (i) whether the appellants were present; and
(ii) whether they shared a common object. The trial court as well as the High Court, in the present case, found that all the stated ingredients were present for each of the appellants was found to be part of the unlawful assembly armed with deadly weapons and shared common object and with that intention participated in the commission of offence. The evidence available on record clearly suggests that each of the appellants was ::: Downloaded on - 09/06/2013 16:40:30 ::: {31} Cri. Appeal 158/2008 part of the unlawful assembly and armed with deadly weapons, together indulged in indiscriminate beating and freely used weapons in their hands causing severe injuries on the body of the deceased.
31. In this connection, it is necessary to give reference to the observations of the Apex Court in the matter of "Bharwad Mepa Dana V/s The State of Bombay" AIR 1990 SC 289. It is held by the Apex Court that where the finding is that the number of persons who constituted the unlawful assembly was more than five, though the identify of four only was established and the killing was done in prosecution of the common object of the entire unlawful assembly, there can be no serious difficulty in applying S. 149 to such case. Whether such a finding can be given or not must depend on the facts of each case and on the evidence led.
The Apex Court, in the matter of "Sukh Ram V/s
32. State of U.P." AIR 1974 SC 232, has observed that where the charge specifically mentioned that the murder was committed by the three named individuals but the evidence was led to show that the appellant along with two unknown persons had committed the crime and it was fully established that the appellant was amongst the three assailants of the deceased in furtherance of the common intention of all the three assailants and, therefore liable for conviction u/s 302 read with 34 of the Indian Penal Code.
33. Further, useful reference of the observations of the ::: Downloaded on - 09/06/2013 16:40:30 ::: {32} Cri. Appeal 158/2008 Apex Court in "Khem Karan V/s State of U.P." (1974) 4 SCC 603 may also be given. The Apex Court in the said judgment has observed thus -
"6. Although the surviving accused who have been convicted are only three, Section 149 and in any case Section 34, IPC will rope in the appellants by way of constructive liability. This Court has, in Sukh Ram V/s State of U.P. Held that the acquittal of two out of three named accused does not bar the conviction of the third under Section 302 read with Section 34, if he is shown to have committed the offence with the unknown companions. As in that case, here also no possible prejudice can be claimed by the accused-appellants by the invocation of Section 34, I.P.C., even if twenty out of twenty three have been acquitted. Moreover, this Court has in Bharwad Mepa Dana V. State of Bombay taken the view that nothing in law prevents the Court from finding that the unlawful assembly consisted of less then five convicted persons and some unidentified persons together numbering more than five. In our view, the fact that a large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under Section 149 read with the substantive offence if - as in this case the Court has taken care to find - there are other persons who might not have been identified or convicted but were party to the crime and together constituted the statutory number. On this basis, the conviction under section 3087, read with section 149, has to be sustained."
34. Thus, it is clear from the observations of the Apex Court, in the rulings cited supra, that though from the evidence of the prosecution witnesses it is established that the act of the ::: Downloaded on - 09/06/2013 16:40:30 ::: {33} Cri. Appeal 158/2008 individual is in furtherance of the common object of the unlawful assembly, which were unidentified by the witnesses, yet the assailants to be convicted for the principal offence read with 149 of the Indian Penal Code.
35. From the above discussion, it can safely be concluded that the testimony of PW-1 Janakibai is reliable, she has, in unambiguous words, stated that she has identified the accused Khemaji, Sahebrao and Sitaram as the assailants, who gave blows of axes to Madhav to commit his murder, along with other unidentified assailants. As we are of the considered view that though there is some embroidery in the story narrated by PW-1 Janakibai, yet her evidence is satisfactory to establish that accused Khemaji, accused Sahebrao and accused Sitaram has committed murder of Madhavrao in furtherance of their common object by forming unlawful assembly armed with deadly weapons.
There is no hesitation in our minds to confirm the conviction of appellants Khemaji, Sahebrao and Sitaram for an offence punishable u/s 148 of the Indian Penal Code and under section 302 read with section 34 of the Indian Penal Code.
36. The appellants in all these appeals are also convicted for the offence punishable u/s 324 r/w 149 of the Indian Penal Code. We have already concluded that evidence of PW-4, PW-5 and PW-8 is not trust worthy. Though medical certificates of all the injured persons are placed on record, yet injured persons ::: Downloaded on - 09/06/2013 16:40:30 ::: {34} Cri. Appeal 158/2008 Laxmibai, Dhrubai, Tauji, Annapurna and Ganapati are not examined by the prosecution before the trial court. Apart from it, on reading of the text of charges framed against all the accused, particularly charge secondly and thirdly, for the offence punishable u/s 307 r/w 149 and 326 r/w 149 of the IPC, it is not specific about the names of the injured. Sections 211 and 212 of the Criminal Procedure Code, speak for framing of charge and particulars of the charge, it is mandated that the charge must specific, by the way the prosecution must know what they have to prove and the defence must know what they have to defend. In absence of specific charges about the injuries sustained by the injured persons, this evidence on record is not sufficient to warrant conviction to any of the appellant for an offence punishable under section 324 read with section 149 of the Indian Penal Code.
37. In substance, Criminal Appeal No.158/2008 filed by original accused No.11 Shivaji Sakharam Bhumre and original accused No.12 Bhagwan Dajiba Bhumre, is allowed and the conviction of the appellants for the offence punishable u/s 148 of the Indian Penal Code, u/s 302 r/s 149 of the Indian Penal Code and u/s 324 r/w 149 of the Indian Penal Code, is hereby quashed and set aside and they are acquitted of the offence with which they are charged. Fine, if paid, by the appellants be refunded to them.
Bail bonds of both the appellants stand cancelled.
::: Downloaded on - 09/06/2013 16:40:30 ::: {35} Cri. Appeal 158/200838. Criminal Appeal No.168/2008 filed by original accused No.1 Uttam Maroti Bhumre and original accused No.15 Rajabhau Dattarao Gabare, is allowed and the conviction of the appellants for the offence punishable u/s 148 of the Indian Penal Code, u/s 302 r/s 149 of the Indian Penal Code and u/s 324 r/w 149 of the Indian Penal Code, is hereby quashed and set aside and they are acquitted of the offence with which they are charged. As both the appellants Uttam Maroti Bhumre and Rajabhau Dattarao Gabare are in jail, they be released forthwith, if not wanted in any other case. Fine, if paid, by the appellants be refunded to them.
39. Criminal Appeal No.193/2008 was originally filed by accused Sitaram and Chandu, however as accused Sitaram has filed Criminal Appeal No.618/2009, his name was deleted from the appeal No.193/2008. Therefore, Criminal Appeal No.193/2008, is allowed to the extent of original accused No.13 Chandu Narayan Gabare and his conviction for an offence punishable u/s 148, u/s 302 r/w 149 and u/s 324 r/w 149 of the Indian Penal Code is hereby quashed and set aside and he is acquitted of the offence with which he was charged. As appellant Chandu Narayan Gabare is in jail, he be released forthwith if not wanted in any other case.
Fine, if paid be refunded to him.
40. Criminal Appeal No.89/2009 filed by original accused No.3 Saheb Maroti Bhumre is partly allowed and his conviction of for an offence punishable u/s 302 r/w 149 of the Indian Penal ::: Downloaded on - 09/06/2013 16:40:30 ::: {36} Cri. Appeal 158/2008 Code and u/s 148 of the Indian Penal Code is hereby confirmed and the sentenced remained unaltered and his conviction for an offence punishable u/s 324 r/w 149 of the Indian Penal Code is hereby quashed and set aside.
41. Criminal Appeal No.406/2009 filed by original accused No.4 Sambhaji Deorao Gabare, is allowed and the conviction of the appellant for the offence punishable u/s 148 of the Indian Penal Code, u/s 302 r/s 149 of the Indian Penal Code and u/s 324 r/w 149 of the Indian Penal Code, is hereby quashed and set aside and he is acquitted of the offence with which he is charged. As the appellant Sambhaji Deorao Gabare is in jail, he be released forthwith, if not wanted in any other case. Fine, if paid, by the appellant, be refunded to him.
42. Criminal Appeal No.618/2009 filed by original accused No.5 Sitaram Panduran Gabare is partly allowed. Conviction of appellant Sitaram Panduran Gabare for an offence punishable u/s 302 r/w 149 of the Indian Penal Code and u/s 148 of the Indian Penal Code is hereby confirmed and the sentenced remained unaltered. Conviction of the appellant Sitaram Pandurang Gabare for an offence punishable u/s 324 r/w 149 of the Indian Penal Code is hereby quashed and set aside.
43. Criminal Appeal No.695/2008 filed by original accused No.2 Khemaji Maroti Gabare is partly allowed. Conviction of ::: Downloaded on - 09/06/2013 16:40:30 ::: {37} Cri. Appeal 158/2008 appellant Khemaji Maroti Gabare for an offence punishable u/s 302 r/w 149 of the Indian Penal Code and u/s 148 of the Indian Penal Code is hereby confirmed and the sentenced remained unaltered. Conviction of the appellant Khemaji for an offence punishable u/s 324 r/w 149 of the Indian Penal Code is hereby quashed and set aside.
44. We quantify the fees payable to Advocates Ms.Kalpana Mutatkar, and Mr.S.S.Deve, learned counsel appointed to represent the appellants in Criminal Appeal No.89/2009 and 406/2009 respectively, at Rs.5000/- (Rupees Five Thousand) each.
[A.V.POTDAR, J.] [P.V.HARDAS, J.]
drp/B10/criapel158-08
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