Bombay High Court
Nivrutti Laxman Sale vs State Of Maha & Ors on 15 March, 2018
Author: S.S. Shinde
Bench: S.S. Shinde
cria34.03+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.34 OF 2003
The State of Maharashtra,
Through MIDC Waluj Police Station,
Tq. & Dist-Aurangabad.
...APPELLANT
VERSUS
1) Kailas s/o Jagannath Pradhan,
Age-22 years, Occu:Student,
R/o-Wadgaon (Kolhati),
Tq. & Dist-Aurangabad,
2) Dattu s/o Jagannath Pradhan,
Age-26 years, Occu:Agril.,
R/o-As Above,
3) Sominath s/o Bhanudas Pradhan,
Age-30 years, Occu:Rickshaw Driver,
R/o-As Above,
4) Namdeo s/o Kashinath Pradhan,
Age-20 years, Occu:Student,
R/o-As Above,
5) Sanjay s/o- Rukhmanbai Chandan,
Age-25 years, Occu:Labour,
R/o-As Above,
[Appeal abated as against
Respondent No.5 as per Court's
order dated 5th December, 2017]
6) Sunil s/o Uttamrao Jadhav,
Age-26 years, Occu:Labour,
R/o-As Above,
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
2
7) Prabhu s/o Rangnath Sale,
Age-40 years, Occu:Agri.,
R/o-As Above,
8) Jagannath s/o Janardhan Pradhan,
Age-85 years, Occu:Agril.,
R/o-As Above.
...RESPONDENTS
...
Mr.S.J. Salgare, A.P.P. for Appellant.
Mr.N.S. Ghanekar Advocate for Respondent
Nos. 1 to 4 and 6 to 8.
Appeal abated as against Respondent No.5 as
per Court's order dated 5th December, 2017
...
WITH
CRIMINAL REVISION APPLICATION NO.366 OF 2002
Nivrutti s/o Laxuman Sale,
Age-23 years, Occu:Agriculture,
R/o-Kolathi Wadgaon,
Tq. & Dist-Aurangabad.
...APPLICANT
VERSUS
1) The State of Maharashtra,
(Through the MIDC Waluj Police Station,
Waluj, Tq. & Dist-Aurangabad.
2) Kailas s/o Jagannath Pradhan,
Age-22 years, Occu:Student,
R/o-Wadgaon (Kolhati),
Tq. & Dist-Aurangabad,
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
3
3) Dattu s/o Jagannath Pradhan,
Age-26 years, Occu:Agril.,
R/o-As Above,
4) Sominath s/o Bhanudas Pradhan,
Age-30 years, Occu:Rickshaw Driver,
R/o-As Above,
5) Namdeo s/o Kashinath Pradhan,
Age-20 years, Occu:Student,
R/o-As Above,
6) Sanjay s/o- Rukhmanbai Chandan,
Age-25 years, Occu:Labour,
R/o-As Above,
[Appeal abated as against
Respondent No.6 as per Court's
order dated 5th December, 2017]
7) Sunil s/o Uttamrao Jadhav,
Age-26 years, Occu:Labour,
R/o-As Above,
8) Prabhu s/o Rangnath Sale,
Age-40 years, Occu:Agri.,
R/o-As Above,
9) Jagannath s/o Janardhan Pradhan,
Age-85 years, Occu:Agril.,
R/o-As Above.
...RESPONDENTS
...
Mr.M.R. Andhale Advocate for Applicant.
Mr.S.J. Salgare, A.P.P. for Respondent No.1.
Mr.N.S. Ghanekar Advocate for Respondent
Nos. 2 to 5 and 7 to 9.
Appeal abated as against Respondent No.6 as
per Court's order dated 5th December, 2017
...
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
4
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 1ST MARCH, 2018.
DATE OF PRONOUNCING JUDGMENT: 15TH MARCH, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Both, Criminal Appeal No.34 of 2003 and
Criminal Revision Application No.366 of 2002 are
directed against the Judgment and order dated 26th
September, 2002, passed by the III Ad-hoc
Additional Sessions Judge, Aurangabad in Sessions
Case No.215 of 2001, thereby acquitting all the
accused from the offences punishable under
Sections 147, 148, 302, 307 read with 149 of the
Indian Penal Code (for short "I.P. Code").
Criminal Appeal is filed by the State and Criminal
Revision Application is filed by the original
complainant challenging the acquittal of the
accused, hence the same are heard together and
being disposed of by this common Judgment and
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
5
order.
2. The prosecution case, in brief, is as
under:-
A) On 28th April, 2001, at about 21.00
hours, complainant Nivrutti was standing along
with his cousin Eknath Sale, when another cousin
Kalyan Sale also came there, and he was passing
towards the shop of one Anil Choradiya, when the
members of "Rashtravadi Congress", namely, Kailas
Jagannath Pradhan, Sominath Pradhan, Namdeo
Pradhan, Dattu Pradhan, Arun Jadhav, Sunil Jadhav,
Sanjay Chanden, assembled there and started
abusing Kalyan. An accused Kailas Pradhan with his
knife gave one after another blows to Kalyan, rest
of the accused made him to fell down and then gave
blows with sticks, fists and kicks. Kalyan started
shouting loudly, the complainant and Eknath went
at spot immediately, when Dattu Pradhan held
Eknath Sale and gave knife blows in the stomach of
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
6
Eknath, as well gave kicks and fist blows to the
complainant Nivrutti. They shouted for help, when
Parmeshwar Sale, Sanjay Vahul, Tripathi and other
villagers came running, and seeing them
assailants sat on motorcycle and ran away. In the
street light and the lights available nearby
outside the houses, the incident was witnessed by
the complainant. Initially Kalyan and Eknath were
taken to Neha Hospital, Pandharpur, and thereafter
they were taken to Ghati Hospital, but while under
medical treatment, Kalyan died and Eknath was
given medical treatment. It is further the case of
the prosecution that Kalyan (deceased) in last
three successive Grampanchayat Elections was
declared elected as a member. He was active member
of the "Shiv Sena" party, whereas the accused
belong to "Rashtravadi Congress". Out of political
rivalry as well as due to earlier quarrels, the
accused murdered Kalyan and attempted to murder
Eknath. On the basis of said complaint, crime was
registered being Crime No.66 of 2001, under
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
7
Section 302, 307, 143, 147, 148, 149, 504, 323 of
I.P. Code and 135 of the Bombay Police Act.
B) One P.I. Abdulla Quadri, investigated the
crime, through PSI Kute. The inquest panchnama of
the dead body of Kalyan was drawn in the Ghati
Hospital. On 29th April, 2001, investigating
officer drew spot panchnama from where he had
collected blood stained soil from the spot, and a
pair of "Chappal". Some of the accused were
arrested on 2nd May, 2001 from near Daulatabad
Fort, and accused Namdeo was arrested in the
evening on the same day. On 3rd May, 2001, at the
instance of accused Kailas, a knife was recovered.
On 5th May, 2001, at the instance of accused
Datta, one more knife was recovered. On 6th and
7th May, 2001, the investigating officer had
attached the clothes of accused - Kailas and Dattu
respectively, At the instance of accused - Sanjay
a stick was attached, so also one another stick at
the instance of accused Sominath was attached.
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
8
Accused Sunil was arrested on 9th May, 2001. On
10th May, 2001, the investigating officer had
collected blood sample of injured Eknath, and on
very day he sent the Muddemal to Chemical
Analyser. On 13th May, 2001, accused Prabhu Sale
was arrested. At the instance of accused Sunil,
cycle-chain was attached. Formal arrest of
Accused- Jagannath was shown on 27th May, 2001.
C) After completing the investigation, on
26th July, 2001, charge-sheet was submitted. By
order dated 6th September, 2001 learned Judicial
Magistrate First Class, Aurangabad committed the
case to the Court of Sessions, for trial.
D) A charge was framed against all the
accused persons and the same was read over, and
explained to them. The accused persons pleaded not
guilty and claimed to be tried. The defence of the
accused was of total denial. It was submitted by
them that they have been implicated in a false
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
9
case.
3. After recording the evidence and
conducting full fledged trial, the trial Court
acquitted all the accused persons from the
offences with which they were charged, as stated
herein above in Para -1 of the Judgment. Hence
this Appeal and Revision Application.
4. Learned A.P.P. appearing for the State
invites our attention to the oral evidence of
three eye witnesses, namely PW-1 Nivrutti, who is
complainant, PW-2 Eknath, who is injured eye
witness and PW-3 Dnyaneshwar, and submits that if
their evidence is read in its entirety, then it
unequivocally indicates that all the accused have
formed unlawful assembly and committed murder of
Kalyan and attempted to commit murder of Eknath.
Learned A.P.P. further argued that though there
are some contradictions, omissions and
improvements in the evidence of prosecution
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
10
witnesses, those are in respect of the role
attributed to accused Nos.3 to 8 only, but so far
as accused Nos.1 and 2 are concerned, all the
three eye witnesses have specifically deposed
that, accused No.1 Kailas took out knife and gave
successive blows on the person of Kalyan, and
accused No.2 Dattu gave a knife blow in the
stomach of Eknath. He further submits that if
there are minor discrepancies in the oral evidence
on trivial matters, however not touching to the
core of the prosecution case, on that count it
would not be appropriate to reject the entire
evidence. In support of his submission, learned
A.P.P. placed reliance upon the exposition of law
in the case of Mritunjoy Biswas vs. Pranab @ Kuti
Biswas and another1. In support of his submissions,
learned A.P.P. also placed reliance upon the
exposition of law in the case of Mani @ Udattu Man
and others vs. State Represented by Inspector of
Police2 and also Vithal Pundalik Zendge vs. state
1 2013 (12) SCC 796
2 2009(12) SCC 288
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
11
of Maharashtra3. He further invites our attention
to the evidence of other witnesses and submits
that the prosecution has brought on record
sufficient evidence to establish that the accused
were responsible for the death of Kalyan and
causing serious injuries to Eknath. He, therefore
submits that the Appeal may be allowed.
5. On the other hand, learned counsel
appearing for Respondents-accused, relying upon
the findings recorded by the trial Court, submits
that plausible view has been taken by the trial
Court. He points out various contradictions,
omissions and improvements in the oral evidence of
the prosecution witnesses, by inviting our
attention to chart of which copy is placed on the
record in the tabular form, and submits that their
evidence is not at all reliable and trustworthy.
He further submits that seizure of weapons at the
instance of accused was from the places which were
3 2008(17) SCC 239
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
12
accessible to all and therefore reliance cannot be
placed on seizure panchnamas. He further submits
that there was no proper sealing of the Muddemal
articles and weapons which were alleged to have
been recovered at the instance of accused, when
the same were sent to chemical analyzer. He
therefore submits that possibility of tampering
with those articles cannot be ruled out. In
support of his submissions, learned counsel placed
reliance upon the exposition of law in the case of
Kailash Raghunath Ambekar and another vs. State of
Maharashtra4. Learned counsel, in support of his
submissions, also placed reliance upon the
expositions of law in the case of Tulshiram
Bhanudas Kambale and others vs. the State of
Maharashtra5. Therefore, learned counsel submits
that since the plausible view is taken by the
trial Court, this Court may not cause interference
in the order of acquittal.
4 2004 ALL MR (Cri) 3257
5 1999 ALL MR(Cri) 1593
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
13
6. Learned counsel appearing for the
Revision Applicant in addition to adopting the
arguments advanced by the learned A.P.P., further
submitted that the findings recorded by the trial
Court are not in consonance with the evidence
brought on record. It is submitted that Revision
Applicant, who is complainant, himself has
witnessed the incident, and he was also beaten by
the accused persons by fist and kick blows and the
evidence of all the witnesses is not properly
appreciated by the trial Court. He further submits
that, presence of injured eye witness PW-2 Eknath,
at the place of incident is clearly established.
He further submits that merely because there are
some minor contradictions, the evidence of
trustworthy eye witnesses cannot be discarded. In
support of his aforesaid submissions, learned
counsel placed reliance upon the exposition of law
in the case of Sanjay Khanderao Wadane vs. State
of Maharashtra6. He, therefore, prays that the
6 2017 ALL SCR (Cri) 1644
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
14
Revision Application may be allowed.
7. Heard learned A.P.P. appearing for the
State, learned counsel appearing for the
Respondents- accused and learned counsel appearing
for Revision Applicant at length. With their able
assistance, we have carefully perused the entire
notes of evidence so as to find out whether the
findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
8. It is pertinent to note that Appeal
against accused No.5 - Sanjay Rukhmanbai Chandan
is already abated. Thus we have to consider the
case, so far as it relates to accused Nos.1 to 4
and 6 to 8. First we will consider the evidence of
eye witnesses i.e. PW-1, PW-2 and PW-3. PW-1
Nivrutti s/o Laxman Sale, who is complainant in
this case, has deposed that Kalyan Sale was his
cousin, so also Eknath Sale is his cousin. Kalyan
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
15
was doing agriculture work and was worker of Shiv-
Sena. At the relevant time Kalyan was member of
Gram Panchayat. He knows all the accused who are
workers of "Rashtrawadi Congress". Since Gram
Panchayat election, the relations between accused
and Kalyan, Eknath were strained. Regarding the
incident, PW-1 Nivrutti deposed that on 28th
April, 2001 the incident had occurred at Wadgaon
Kolhati, near Suyog Plotting Center Board and time
was 9.00 p.m. He was standing on the road in front
of Suyog Board. Kalyan and Eknath were coming on
motorcycle, he called them, they stopped the
motorcycle and witness started talking with
Eknath. He further deposed that 7 accused -
Kailas, Dattu, Namdeo, Sominath, Sanjay Chandan,
Arun Jadhav, Sunil Jadhav came there and started
abusing Kalyan. Kailas took out a knife available
with him and started giving blows on the person of
Kalyan, one after another in succession. Kalyan
started shouting. He further deposed that rest of
the accused made him to fell down on face. He
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
16
further deposed that, then Dattu came running and
gave knife blow in the stomach of Eknath. Rest of
the accused started giving fist and kick blows.
Then there was shouting. The villagers came
running and the accused left the place on 2-3
motorcycles. He further deposed that injured were
carried to the Ghati hospital where doctor told
that Kalyan had expired and Eknath was admitted
and treated in the hospital for 4-5 days and
thereafter he was shifted to Dhoot Hospital.
. During the course of cross-examination,
PW-1 Nivrutti was asked about his various
relatives and their relations with witness and
Kalyan. Thereafter he was asked about the details
regarding the houses of Kalyan and Eknath. PW-1
Nivrutti further stated that he had come on foot
at the spot of incident. There is only one road to
approach the said road from village to Shivaji
Chowk. He further stated that one has to come to
Suyog Board only through Shivaji Chowk road from
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
17
the village. The witness then asked about the
minute details regarding the road where incident
took place. He further stated that, he was going
to his land at the relevant time. His land is to
the North of the Board. He again said that, he was
not standing but passing through the said place
since his land is abutting the land of Kalyan.
This witness was further cross-examined regarding
the details of the spot of incident. He further
stated that, Kalyan and Eknath had come from the
South side of Shivaji Chowk. He had not stated
precisely in the complaint that while he was
standing, Kalyan and Eknath had come on
motorcycle. PW-1 was further extensively cross-
examined.
9. Thus from the perusal of oral evidence of PW-1
Nivrutti, he has specifically stated that accused
Kailas started abusing Kalyan, then he took out a
knife which was with him, and started giving
successive blows on the person of Kalyan. He
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
18
further deposed that, thereafter accused Dattu
came on the spot and gave a knife blow in the
stomach of Eknath. It is true that about the role
attributed to accused Nos.3 to 8, this witness has
made general statements and no specific role is
attributed to any one of the accused from amongst
accused Nos.3 to 8. About accused Nos.3 to 8, PW-1
Nivrutti deposed that, rest of the accused made
deceased Kalyan to fell down on the ground. PW-1
Nivrutti further deposed that during the incident
rest of the accused started giving him fist and
kick blows. Thus except accused No.1 Kailas and
accused No.2 Dattu, PW-1 Nivrutti has neither
attributed any specific role to the rest of the
accused nor stated that they were possessing any
weapons. It is pertinent to note that, regarding
the role attributed to accused No.1 Kailas and
accused No.2 Dattu, the evidence of PW-1 Nivrutti
is not at all shattered in the cross-examination.
10. PW-2 Eknath s/o Tukaram Sale is an
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
19
injured eye-witness. He deposed that on 28th
April, 2001 at about 9.00 p.m. near Suyog Plotting
Center Board at Wadgaon Kolhati, the incident had
occurred. He himself and Kalyan were going to the
field on the motorcycle and came from Shivaji
Chowk. Near Suyog Plotting Center Board, initially
seven persons came and then two more. Those seven
were Kailas, Dattu, Namdeo, Sominath, Sanjay, Arun
Jadhav and thereafter Prabhu Sale and Jagannath
arrived at the spot of offence. All the above said
persons started abusing the witnesses and deceased
Kalyan. Immediately accused Kailas took out knife
and gave blows after blows to Kalyan. Immediately,
accused Dattu also took out a knife and gave blow
on his stomach (PW-2 Eknath). Then rest of
the accused with fist and kick blows, assaulted
them. Nivrutti (PW-1) had come to rescue, and he
was given fist and kick blows. Hearing their
shouts, persons from the village started coming
there, seeing them all the accused ran away. He
further deposed that, he was admitted in Ghati
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
20
Hospital for five days, and from Ghati Hospital he
was shifted to Dhoot Hospital, where he was
operated.
. During the course of cross-examination by
the Advocate for accused No.1, PW-2 Eknath stated
that Kalyan had come to his house at 8.30 p.m. to
take him towards the land. They had not stopped
anywhere since they started to go to the land till
the time of incident. The road from Shivaji Chowk
to the land of Kalyan passes North-South. They
were going towards North on the said road. His
house is near the house of Kalyan. Their houses
are to the East of the village near the temple. He
further stated that the distance between Shivaji
Chowk and Suyog Board is 5 to 6 Kasara. One Kasara
measures 7 to 8 hands. While passing by the said
road, Suyog Board falls to the left side. The
incident occurred in front of the Board and not to
its North and South. He was unable to state
whether it was 11.00 p.m. when they reached Ghati
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
21
Hospital. Police had recorded his statement when
he was in Dhoot Hospital. He was unable to tell,
how many days after admitting in Dhoot Hospital,
police had recorded his statement. He was unable
to give description of the clothes on the persons
of the assailants.
. During the course of cross-examination by
the Advocate for accused Nos.4 to 7, PW-2 Eknath
stated that, they both had got down from the
motorcycle, when accused were abusing the
prosecution witnesses. He further stated that, he
does not know, whether he had stated before the
police that after running away of Prabhu and
Jagannath, Nivrutti and Vishnu came. He was unable
to state why it has come so in the statement
recorded by police. He had stated before the
police that all the accused had given fist and
kick blows to them. He was unable to give the
reason why it is missing in the police statement.
He had not stated to the doctor that at 7.00 p.m.
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
22
he was attacked with knife.
. During the course of cross-examination by
the Advocate for accused Nos.2, 3 and 8, he
admitted that he had stated before the police that
on that day via Shivaji Chowk he himself and
Kalyan, on motorcycle were going to land to stay
at night there itself. He is unable to give the
reason, why it is missing in the statement given
by him to the police. He was unable to tell,
whether the shop of Anil Chordiya was open or
closed. He was further extensively cross-examined,
however nothing useful to the accused Nos.1 and 2
was elicited from the said cross-examination.
11. Thus after careful perusal of the
evidence of PW-2 Eknath, he has stated that on
28th April, 2001 at 9.00 p.m. near Suyog Plotting
Center Board at Wadgaon Kolhati, the incident took
place. He specifically stated that, during the
incident, accused No.1 Kailas pulled out a knife
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
23
and gave blows after blows to Kalyan. He further
specifically stated that, immediately accused No.2
Dattu also took out knife and gave one blow on
stomach of Eknath.
12. PW-3 Dnyaneshwar s/o Dagdu Sale in his
examination-in-chief, deposed that Kalyan was his
brother. He knows all the accused. On 28th April,
2001 at 9.00 p.m. the incident had occurred. It
was near the Board of Suyog Plotting Center. He
was standing in Shivaji Square. He heard chaos
from Suyog Board and went there. Kalyan, Eknath,
Nivrutti, Dattu Pradhan, Kailas Pradhan, Sominath,
Namdeo, Sanjay, Sunil, Arun Jadhav, Prabhu,
Jagannath, were there. Eknath and Kalyan were
given fist and kick blows by all the accused. Then
Kailas pulled out the knife and gave blows to
Kalyan. Dattu gave knife blow on the stomach of
Eknath. Then accused also gave kick and fist blows
to Kalyan though he was lying down.
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
24
. During the course of cross-examination of
PW-3 Dnyaneshwar he was asked, whether a rape case
was filed against him. He was further asked, what
happened in the hospital as well as police station
after the incident. He was further asked about the
details regarding the Gram Panchayat election. He
denied the suggestion that, he knows nothing about
the incident and in his presence no incident had
occurred. He has denied the suggestion that, at
the say of Eknath and police, he is deposing
falsely. He further stated that, he does not
recollect, whether he had stated before police
that Nivrutti was there, when he reached on the
spot. He was unable to assign any reason, why the
same is missing in his police statement. He
further stated that, it did not occur when he
reached there, beating with sticks, Lathi, chain,
fighter was going on. He did not recollect whether
he had stated so before the police. He was unable
to give reason why police recorded so. For about
five minutes Kalyan was in standing position after
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
25
he reached on the spot. During this period he
tried to rescue Kalyan. He had scuffle with the
accused. He made no attempt to snatch anything
from the hands of any of the accused. This witness
was further extensively cross-examined. We have
carefully perused the entire cross-examination of
this witness. In respect of attack by accused No.1
Kailas and accused No.2 Dattu by using knives, the
evidence of PW-3 Dnyaneshwar is trustworthy,
cogent and consistent with the prosecution case ,
and the same is not at all shattered in the cross-
examination.
13. Thus, we have carefully perused oral
evidence of all the above three eye witnesses,
i.e. PW-1 Nivrutti, injured eye witness PW-2
Eknath and PW-3 Dnyaneshwar. The evidence of all
these three eye witnesses unequivocally,
unambiguously consistent with the prosecution case
that, during the scuffle, accused No.1 Kailas took
out a knife and gave successive blows on the
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
26
person of Kalyan, and accused No.2 Dattu took out
a knife and given a blow in the stomach of PW-2
Eknath. Though the prosecution has brought on
record some contradictions and omissions regarding
the spot of incident, surrounding area, the nearby
roads, the persons residing in the vicinity, the
said contradictions and omissions are of a minor
nature and do not affect core/substratum of the
prosecution case and therefore the same can be
ignored. The Supreme Court in the case of Sanjay
Khanderao Wadane vs. State of Maharashtra, cited
supra, in Para 14 of the Judgment held thus:
"14. In this view of the matter, the
evidence of PWs 5, 8 and 12 are found to
be trustworthy and fully corroborated with
each other on the point of alleged
incident with regard to the involvement of
the appellants herein. Further, the
evidence fully corroborates with the
medical evidence given by the Doctor who
conducted the post mortem of the deceased.
Even the injuries sustained by PW-8 while
rescuing the deceased from the clutches of
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
27
the accused persons have been examined and
proved by Dr. Kundalick (PW-11) who found
them to be of grievous nature. We are of
the view that the evidence of the
witnesses cannot be brushed aside merely
because of some minor contradictions, if
any, particularly for the reason that the
evidence and testimonies of the witnesses
are trustworthy. However, the prosecution
failed to examine Devidas Magar and
Shridhar Salve who said to have rescued
the deceased."
Underlines are added.
14. Regarding all other accused persons,
these witnesses have made general statement that,
rest of the accused gave fist and kick blows, and
no specific role is attributed to any one from the
rest of the accused. Thus, except accused No.1
Kailas and accused No.2 Dattu, all the three eye
witnesses have neither attributed any specific
role to accused Nos.3 to 8 nor stated that, they
were possessing any weapons.
15. PW-4 Vijaykumar s/o Mannulal Jaiswal is a
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
28
panch to the spot panchnama. PW-5 Vithal s/o
Jairam Mhaske is the panch to the seizure
panchnama of clothes of accused No.1 Kailas. PW-6
Sanjay s/o Laxman Wahule is a panch to the
recovery panchnama of knife at the instance of
accused No.2. PW-6 Sanjay deposed that accused
No.2 Dattu told that from his house he would
produce a knife. Accordingly, at the instance of
accused No.2 Dattu, along with the police party,
PW-6 Vijaykumar went to the house of Dattu and
Dattu took out a knife kept over the show-case in
the sitting room. PW-7 Gajanan s/o Mahruba Khatkar
is the panch to recovery panchnama of a knife at
the instance of accused No.1 Kailas. PW-7 Gajanan
deposed that at the instance of accused No.1
Kailas a knife was recovered which was kept on the
tin-sheets of the house of accused Kailas. PW-8
Vikas s/o Ratanlal Jain is a panch to inquest
panchnama of dead body of Kalyan Sale. PW-9 Sanjay
s/o Ramnath Rane is also a panch witness to the
seizure panchnama of clothes of deceased Kalyan.
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
29
PW-9 Sanjay deposed that in his presence the
clothes which were on the person of deceased
Kalyan were packed in paper vide Panchnama
Exhibit 62.
16. PW-10 Vijay Dattarao Borgaonkar is a
medical officer. He deposed that he is attached to
Seth Nandlal Dhoot Hospital in the capacity of
surgeon and medical director. He further deposed
that on 3rd May, 2001 at about 7.00 p.m. patient
Eknath Tukaram Sale (injured eye witness PW-2) was
examined by him and he prepared the case-papers.
The patient had given history of stab on stomach
on Saturday. The patient had also given history
that he was admitted in Government Medical
Hospital, Aurangabad and was operated there. The
general condition of patient was very poor, the
patient was toxic. The patient was sent to Dhoot
Hospital as he was needed second operation
immediately. He further deposed that after
completing the examination the patient was taken
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
30
for operation at 10.30 p.m. The patient was
operated by the witness himself. Operation details
have been provided in the case papers. Operation
was re-exploration, peritoreal toilet, mound
debridement. There was pus formation in the
abdomen and so second operation was immediately
needed to be carried out. After treatment the
patient was discharged on on 15th May, 2001.
During the course of cross-examination, PW-10
Vijay stated that the operation was successful. By
next day of operation the patient was in a
position to talk, after anesthesia effect was
over. The recovery was steady and progressive.
17. PW-11 Dr. Sureshchandra s/o Gambhirrao
Chavan deposed that, he was serving as Medical
Officer in Government Medical College, Aurangabad.
On 28th April, 2001 he was working as Casualty
Medical Officer from 8.00 p.m. to 8.00 a.m. He had
examined Eknath Tukaram Sale, brought by one
Nivrutti. The history was given of assault on 28th
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
31
April, 2001 at 8.00 p.m. He further deposed that
he found following injuries on the person of
patient Eknath:
"Incised wound on right side of abdomen 1.5
c.m., depth unknown, the age was within six
hours, caused by hard and cutting object,
the nature was grievous."
. PW-11 Dr. Sureshchandra further deposed
that the said injury caused to patient Eknath, was
sufficient in ordinary course to cause death.
. PW-11 Dr. Sureshchandra further deposed
that one Kalyan Dagdu Sale was also examined by
him on that day. There was history of assault. The
patient was unconscious and serious. The medical
officer noticed following injuries on the person
of patient Kalyan:
"1. Incised wound, over left side of chest
1.5 cm. to unknown deep,
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
32
2. Incised wound over left side of chest
below injury No.1, 1 cm. X unknown deep,
3. Incised wound over the right side of
abdomen, 2 X 1 cm. X unknown deep."
. PW-11 Dr. Sureshchandra further deposed
that the age of injuries was within six hours,
caused by hard and cutting object, nature was
grievous. The patient i.e. Kalyan, expired in
Casualty and sent for postmortem examination. We
have also perused the cross-examination of PW-11
Dr. Sureshchandra.
18. Thus on conjoint reading of the evidence
of PW-10 Dr. Vijay and PW-11 Dr. Sureshchandra, it
is clear that, PW-2 Eknath has received grievous
injury to his abdomen. Due to said injury caused
to Eknath, two operations were carried out, one in
Government Hospital and another in Dhoot Hospital.
The injury caused to Eknath, In ordinary course,
was sufficient to cause death. Regarding Kalyan
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
33
Dagdu Sale, PW-11 Dr. Sureshchandra deposed that,
injuries caused to Kalyan were by hard and cutting
object. The injuries were of grievous nature and
due to the said injuries Kalyan expired in
Casualty Ward.
19. PW-12 Dr. Shrikrishnarao s/o
Ramchandra Bhalchandra is the medical officer who
conducted autopsy on the dead body of Kalyan Dagdu
Sale. He deposed that cause of death is, "shock
due to multiple stab injuries". Total external
injuries were 8 in number and were ante-mortem.
The description of the injuries has been given in
detail in Postmortem notes. All the injuries were
possible by stab with knife, because those were
caused by sharp edged weapon. He further deposed
that in Column No.20 of the Postmortem notes, the
internal injuries have been shown. He further
deposed that the injuries shown in Column No.17
are possible by knives except injury No.8, which
is possible by hard and blunt object. He further
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
34
deposed that injury Nos.1 to 7 in ordinary course,
are sufficient to cause death. We have also
perused the cross-examination of this witness.
20. Upon careful perusal of the evidence of
PW-12 Dr. Shrikrishnarao, he unequivocally stated
that cause of death of Kalyan was shock due to
multiple stab injuries. He specifically stated
that except injury No.8, all the injuries shown in
column No.17 of the postmortem notes were possible
by knife. He further contended that injury Nos.1
to 7 caused to Kalyan, in ordinary course, were
sufficient to cause death.
21. PW-13 Dr. Manish s/o Rameshwar Malani
deposed that he was serving as Lecturer in Surgery
Department in Government Medical College,
Aurangabad. He further deposed that on 28th April,
2001 at 9.45 p.m. Eknath Tukaram Sale was
admitted in Surgery Ward. It was found that there
was stab injury in right area fossa i.e. in right
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
35
side of abdomen. They took decision of operation
and patient was shifted to Operation Theater. The
patient was operated. It was found during the
operation that there was injury to ceacum. He
further deposed that the said injury was
sufficient in ordinary course of nature to cause
death. We have also perused the cross-examination
of PW-13 Dr. Manish, however nothing contrary to
prosecution case was brought on record. Thus,
prosecution has brought on recrod sufficient
medical evidence, which clearly corroborates to
the oral evidence of the eye witnesses and other
witnesses.
22. PW-14 Syed Abdulla s/o Abdul Rahman
Quadri is the investigating officer. He deposed
about the manner in which he has carried out the
investigation.
23. We have carefully perused the entire
evidence brought on record by the prosecution. We
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
36
are of the opinion that the evidence regarding
unlawful assembly is very weak and not sufficient
for holding the accused persons guilty of the
offences punishable under Sections 143, 147, 148,
149 of the I.P. Code.
23. As observed earlier, Appeal as against
accused No.5 is already abated. After perusal of
entire notes of evidence we find that regarding
the involvement and role attributed to accused
Nos.3, 4 and 6 to 8, the prosecution witnesses
have made general allegations against them. As
observed earlier, no specific role is attributed
to any one from accused Nos.3, 4 and 6 to 8.
Thus, except accused No.1 Kailas and accused No.2
Dattu, three eye witnesses have also neither
attributed any specific role to accused Nos.3 to
8 nor stated that they were possessing any
weapons. There is variance in the oral testimony
of the prosecution witnesses, and the prosecution
has not proved beyond reasonable doubt about
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:58 :::
cria34.03+
37
actual involvement of accused Nos.3 to 8 in the
actual incident. We have carefully perused the
findings recorded by the trial Court. So far as it
relates to acquittal of accused Nos.3 to 8 are
concerned, we are in agreement with the findings
recorded by the trial Court.
24. After considering the entire notes of
evidence, in particular, oral evidence of three
eye witnesses including injured eye witness PW-2
Eknath and the medical evidence brought on record
by the prosecution, we are of the considered
opinion that, prosecution has proved, beyond
reasonable doubt, that accused No.1 Kailas
committed murder of Kalyan and accused No.2 Dattu
attempted to murder PW-2 Eknath. Though accused
No.2 Dattu gave only one blow of the knife, the
same was on vital part of the body i.e. stomach of
PW-2 Ekanth with an intention to commit murder.
Hence so far as accused No.1 Kailas and accused
No.2 Dattu are concerned, we are not at all in
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:59 :::
cria34.03+
38
agreement with the findings recorded by the trial
Court. In respect of them only possible view was
their conviction and another view was not possible
at all, keeping in view the evidence of three eye
witnesses and medical evidence.
25. For the reasons recorded, herein above,
we pass the following order:
O R D E R
(I) Criminal Appeal No.34 of 2003 is partly allowed.
(II) The impugned Judgment and order dated 26th September, 2002, passed by the III Ad-hoc Additional Sessions Judge, Aurangabad in Sessions Case No.215 of 2001, so far as acquitting accused No.3 Sominath s/o Bhanudas Pradhan, accused No.4 - Namdeo s/o Kashinath Pradhan, accused No.6 - Sunil s/o Uttamrao Jadhav, accused No.7 Prabhu s/o Rangnath Sale and accused No.8 - Jagannath s/o Janardhan Pradhan, ::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:59 ::: cria34.03+ 39 from the offences punishable under Sections 147, 148, 302, 307 read with 149 of the Indian Penal Code is hereby confirmed. So also, acquittal of Accused No.1 - Kailas s/o Jagannath Pradhan and accused No.2 - Dattu s/o Jagannath Pradhan of the offences punishable under Sections 147, 148 of the Indian Penal Code is confirmed.
(III) The impugned Judgment and order dated 26th September, 2002, passed by the III Ad-hoc Additional Sessions Judge, Aurangabad in Sessions Case No.215 of 2001, thereby acquitting accused No.1 Kailas s/o Jagannath Pradhan from the offence punishable under Sections 302 of the Indian Penal Code is quashed and set aside. Accused No.1 - Kailas s/o Jagannath Pradhan is convicted for the offence punishable under Section 302 of the Indian Penal Code and he is sentenced to suffer imprisonment for life and to pay fine of Rs.5000/-, and in default to suffer rigorous imprisonment for three months.
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:59 :::cria34.03+ 40 (IV) The impugned Judgment and order dated 26th September, 2002, passed by the III Ad-hoc Additional Sessions Judge, Aurangabad in Sessions Case No.215 of 2001, thereby acquitting accused No.2 - Dattu s/o Jagannath Pradhan from the offence punishable under Sections 307 of the Indian Penal Code is set aside. Accused No.2 - Dattu s/o Jagannath Pradhan is convicted for the offence punishable under Section 307 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.3000/-, and in default to suffer rigorous imprisonment for two months.
(V) Accused No.1 - Kailas s/o Jagannath Pradhan and accused No.2 - Dattu s/o Jagannath Pradhan shall forthwith surrender before the trial Court to undergo the remaining sentence.
(VI) Accused No.1 - Kailas s/o Jagannath Pradhan and accused No.2 -
::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:59 :::cria34.03+ 41 Dattu s/o Jagannath Pradhan shall be given set-off vide Section 428 of the Criminal Procedure Code.
(VII) In view of order passed in Criminal Appeal, Criminal Revision Application No.366 of 2002 also stands disposed of.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/MAR18 ::: Uploaded on - 15/03/2018 ::: Downloaded on - 16/03/2018 01:50:59 :::