Nana Baburao Kedare, Babanna ... vs The State Of Maharashtra ...
2008 Latest Caselaw 55 Bom

JUDGMENT

P.R. Borkar, J.

1. All these appeals are directed against the order of conviction and sentence passed by the learned Additional Sessions Judge, Jalgaon in Sessions Case No. 9 of 1989 decided on 30.04.1992, whereby all the appellants from all these appeals were convicted of the offence punishable under Section 302 r/w 149 of Indian Penal Code (IPC) and each is sentenced to suffer imprisonment for life and to pay fine of Rs. 200/-in default to undergo rigorous imprisonment for two months. All the appellants are also convicted of the offences punishable under Section 147, 148 and 152 of IPC, but no separate sentence is awarded.

2. Briefly stated the facts giving rise to these appeals may be stated as below:

On 01.12.1986 Kamalbai Sudhakar Ambhore (P.W.6) lodged complaint at Bhusawal Police Station stating that her brother Ashok Khare was residing in Haddiwali Chal in Bhimwadi at Bhusawal. She was also residing in the neighbourhood. One Balu had come from Goa and he was residing from sometime with accused No. 1 Nana Kedare, who was also residing in Haddiwali Chal. Police were wanted one Balu and made enquiry with Ashok Khare, for whose murder these appellants are tried. Deceased Ashok told Police that Balu was residing with accused No. 1 Nana Khare, but Police insisted deceased Ashok to produce Balu and accordingly when Balu was seen on 30.11.1986, deceased Ashok informed Police and Police came and arrested Balu. On 30.11.1986, in the evening accused No. 1 Nana Kedare went to the house of deceased Ashok along with original accused No. 2 Babanna, accused No. 3 Chhotelal, accused No. 4 Raju Bhalerao and questioned deceased Ashok and warned him that result of his action in informing Police would be bad. At that time, accused No. 5 Mahadeo also came there. He also gave threats. At that time Kamalbai (P.W.6) intervened and told them that they would get Balu released on Monday and also said that Police were harassing deceased Ashok and therefore he helped Police in arresting Balu.

3. On 01.12.1986, as per complaint lodged by Kamalbai (P.W.6), appellants Nana, Babanna, Chhotelal, Raju and Ashok Kedare went to the house of deceased Ashok. He was not at home, but he came soon. Deceased Ashok was given threats, so immediately at about 9 a.m. he went to the Police Station and informed Police about threats given to him.

4. It is further prosecution case as disclosed in the complaint of Kamalbai (P.W.6) that thereafter at about 10=15 or 10=30 deceased Ashok came home on bicycle. After he had gone into his house, all the original accused Nos. 1 to 7 and one Dinesh who died pending trial, came to the house of deceased Ashok. They dragged him out. At that time all the accused were holding weapons like knife, Gupti. Accused No. 1 Nana Kedare stabbed deceased Ashok with knife on left thigh and thereafter also stabbed on the chest of deceased Ashok. Accused No. 6 - Ashok Kedare also gave blow with knife to deceased Ashok. Accused No. 2 -Babanna also stabbed deceased Ashok on left side buttock with knife. As a result deceased Ashok fell down in a gutter. Kamalbai (P.W.6) intervened. At that time accused No. 1 Nana snatched Gupti from accused No. 7 Dagadu, but somebody pulled him back. Crowd had gathered. Kamalbai (P.W.6) went to the Police Station on somebody's bicycle and gave information about the quarrel which was going on. Police immediately came to the spot, but by that time deceased Ashok was removed to the hospital. Police started searching for original accused No. 1 Nana Kedare and other accused, who had run away. One Sheela (P.W.5) gave information that the accused had run away towards river side. So, Police went towards river and arrested all the accused. They were taken to the Police Station. In the meantime Kamalbai (P.W.6) went to the hospital and found her brother Ashok dead and thereafter she lodged complaint.

5. Police after registering crime drew inquest panchanama. They took search of clothes on the person of the accused. Clothes of accused Nos.1, 2 and 5 were attached. Clothes of accused Nos. 1 and 2 were having bloodstains. Knife was found in possession of accused No. 1 Nana. Thereafter, Police drew spot panchanama. Sarees of both Kamalbai (P.W.6) and Rekha (P.W.7) who is wife of deceased Ashok were attached as they were having bloodstains. Clothes on the person of deceased were also attached. Police recorded statements of various persons. Muddemal articles attached were sent to Chemical Analysis.

6. In this case, though prosecution examined some of the neighbours and eye witnesses, only Kamalbai (P.W.6) and Rekha (P.W.7) who were respectively sister and widow of deceased Ashok, supported the prosecution case. All other witnesses have turned hostile. Thus Kashinath Mangare (P.W.9), Vijayalaxmi Trivedi (P.W.10), Nanda Francis (P.W.11), Anand Pardhe (P.W.12) and Sheela Nikam (P.W.5) have turned hostile. Similarly, panch witness Narendra Patil (P.W.3), Rajaram Pardeshi (P.W.4), Joseph Fransis (P.W.8), Vikas Damle (P.W.13) and Dilip Goralkar (P.W.14) have turned hostile. Permission was granted to learned A.P.P. to put questions in the nature of cross-examination to all these witnesses. It is clear from the circumstances that the accused persons have criminal background. The manner in which the incident had occurred and motive for offence indicate that due to fear of accused, independent prosecution witnesses have not supported prosecution case. However, learned Sessions Judge found evidence of Rekha Khare (P.W.7), Kamal (P.W.6), Dr. Kavita Sontakke (P.W.1) and P.I. Vasant Kadave (P.W.15) reliable and therefore, he convicted the accused.

7. It is argued before us that there is only evidence of close relatives like Kamalbai (P.W.6) and Rekha (P.W.7) and there is no independent witness. Merely because deceased had helped Police in arresting Balu and lodged complaint for the morning incident, gruesome murder was committed on broad day light. So, one cannot expect independent witness to come forward. Only close relatives could muster sufficient courage to appear before the Court and depose against the accused. One cannot lose sight of this fact while appreciating evidence. However, the caution given by the Supreme Court for close scrutiny of evidence of relatives before acceptance needs to be borne in mind.

8. Several documents are admitted in evidence under Section 294 of Criminal Procedure Code. The panchanama of attachment of Saree of Kamalbai (P.W.6) is at Exh.14, inquest panchanama is at Exh.15, the panchanama of attachment of clothes of accused No. 4 Raju is at Exh.16, the panchanama of attachment of deceased Dinesh is at Exh.17, the panchanama of attachment of clothes on the person of accused No. 3 - Chhotelal is at Exh.18, the panchanama of attachment of saree of Rekha (P.W.7) is at Exh.19, the panchanama of attachment of pant of deceased Ashok is at Exh.20. It is stated that said pant was handed over by nurse in the hospital as it was on the person of deceased Ashok and the same was produced before police immediately on the same day. Exh. 21 is panchanama of attachment of remaining clothes of deceased. Chemical Analyser's reports are at Exh.22 to 31. All these documents are admitted under Section 294 of Cr.P.C. Some of these admitted documents are relevant when we consider C.A. reports.

9. It may also be noted that earlier charge was amended and new charge was framed at Exh.60 after deposition of Kamalbai (P.W.6) and the witness was recalled for further cross-examination as per order passed below Exh.69 on 23.03.1992. Since accused Dinesh was dead, charge against remaining seven accused is framed under Section 147, 148 and 302 r/w 149 of IPC, in the alternative under Section 302 r/w 34 and 452 r/w 149 of IPC.

10. Kamalbai (P.W.6) narrated the incident as stated above. It may be noted that Kamalbai (P.W.6), Rekha (P.W.7) are illiterate women and therefore time and/or distance given by them should be taken as approximate. Kamalbai (P.W.6) stated about the arrest of Balu on the information given by deceased Ashok and thereafter all the accused coming to the house of deceased Ashok to question him. This part is also supported by Rekha (P.W.7). At that time Kamalbai (P.W.6) intervened and assured the accused that they would try to get Balu released.

11. So-far-as incident of 01.12.1986 is concerned, Kamalbai (P.W.6) and Rekha (P.W.7) both stated that in the morning accused No. 1 Nana, accused No. 2 Babanna, accused No. 3 Chhotelal, accused No. 6 Ashok went to question deceased Ashok for not bringing back Balu and gave him threats. So-far-as motive for murder is concerned, we get corroboration from immediate complaint by deceased Ashok Khare at the Police Station. That complaint at Exh.94 is treated as non-cognizible. The complaint is proved by P.I. Kadave. It is mentioned in the complaint lodged by deceased Ashok at about 9.00 a.m. that, on that day when he was going to Railway Station for duty, near Satara bridge in front of Brijwasi Hotel, accused No. 1 Nana, accused No. 4 Raju came and said that he had given information to Police and they would trouble him. They also beat him with slaps and blows. They gave him abuses and threatened to kill him. He rescued himself from them. This complaint was registered at 9.30 a.m., under Section 323, 506 of IPC by the Police. This complaint was lodged by the deceased Ashok and it clearly supports case of Kamalbai (P.W.6) and Rekha (P.W.7) regarding previous threats by accused and motive for the incident.

12. So-far-as main incident is concerned, Kamal (P.W.6) stated that all eight accused including deceased accused Dinesh had come to the house of deceased Ashok at about 10 to 10.30 a.m. and they dragged out deceased Ashok from inside the house. So, she went running there. At that time, she saw accused No. 1 Nana, Accused No. 2 Babanna, deceased accused Dinesh, accused No. 8 Dagadu, accused No. 6 Ashok, accused No. 5 Mahadev, accused No. 4 Raju. They were holding Gupti and knives in their hands. After they dragged out deceased Ashok first accused No. 1 Nana gave blow with knife on left thigh and then he gave second blow on the chest of the deceased Ashok. Accused No. 6 Ashok Kedare also gave blow on the chest of deceased Ashok. Ashok fell down in the drain. At that time she intervened to rescue her brother. Accused No. 1 Nana took Gupti from accused No. 6 Ashok and rushed at her, but people who had gathered there, prevented accused No. 1 Nana from assaulting her and thereafter she rushed to City Police Station and informed the incident to the Police. So-far-as this part is concerned, complaint at Exh.57 is consistent with the deposition.

13. Rekha (P.W.7) stated that at about 10.30 a.m. all the accused had come to their house. She was washing clothes outside near back door. Accused entered by the back door of the house, dragged out her husband Ashok. She and her children started shouting. Immediately, thereafter, Kamal (P.W.6) came. Accused dragged deceased Ashok by back door. She followed her husband. She described which accused was holding what weapon and thereafter said that accused No. 1 inflicted blow of knife on the thigh of her husband. Accused No. 2 Babanna gave blow with knife. Accused No. 1 again gave blow on the chest of her husband. Her husband fell down in drain. She and Kamal (P.W.6) intervened to save deceased Ashok. However, her husband was surrounded by accused and they started beating him. She fainted and when after some time when she regained consciousness, accused were not there. She enquired about her husband with persons who had gathered there. They told that her husband was lying in the house of Sapkale. So, she went to the house of Sapkale and found her husband lying injured. Thereafter, with the help of others, she took her husband to the hospital.

14. It is argued before us that the prosecution has not examined any witness to explain how the deceased Ashok has reached house of Sapkale. It is also argued that there were no bloodstains on the alleged spot of incident, but bloodstains were found in the house of Sapkale. So, the story told by both the witnesses that incident took place near the house of deceased Ashok is false.

15. As noted earlier, most of the witnesses have turned hostile. Though, Sapkale in whose house deceased was seen by Rekhabai is not examined, that alone is not sufficient to disbelieve the two eye witnesses Kamal (P.W.6) and Rekha (P.W.7). Secondly, as we have discussed earlier, almost all persons gathered there except Kamal (P.W.6) and Rekha (P.W.7) have turned hostile.

16. If we consider spot panchanama-Exh.52, it is clear that Police did find bloodstains near house of Khandagale, which was adjacent to the house of deceased Ashok. They also found bloodstains on garbage-tank. Police found bloodstains on the bricks of said garbage-tank. At a distance of 4 1/2 to the North from this garbage-tank the blood stains were seen. There were bloodstains near Ota on the eastern corner, where bangle pieces were also seen. It has come in the evidence of Kamal (P.W.6) that said bangles pieces were of Rekha (P.W.7). Complainant Kamal herself has shown place of incident and in the panchanama itself it is mentioned that bangle pieces were of Rekha (P.W.7). So, it cannot be said that the incident did not take place at place stated by the two eye-witnesses.

17. It is quite possible that after sustaining injury on the chest, deceased Ashok might have run for some distance from the place, where he had last seen fallen by Kamal (P.W.6), Rekha (P.W.7) and might have taken shelter in the house of Sapkale.

18. Moreover, evidence of both the eye-witnesses is corroborated by bloodstains found on the sarees worn by them. These sarees were attached under panchanamas. Said panchanamas Exh.14 & Exh.19 are admitted by accused under Section 294 of Cr.P.C. C.A. report shows that both sarees bore blood of same group as the group of blood found on the cloths of deceased. Panchanamas regarding clothes of deceased are at Exh.20 & 21 and C.A. report is at Exh.22.

19. It may be noted that Kamal (P.W.6) on seeing that her brother being assaulted by accused had rushed to the Police Station, whereas Rekha (P.W.7) was fainted. So both may not know how deceased Ashok was found lying in the house of Hiraman.

20. However, it was suggested to Vijayalaxmi Trivedi (P.W.19) who is hostile witness that after sustaining wound to deceased Ashok has ran towards house of Hiraman Sapkale from the side of his house. She was confronted by portion marked "B" (later on proved Exh.87 by P.I. Kadve) from her statement dated 01.12.1986 to that effect. However, that statement was denied. It shows how the things must have happened.

21. So-far-as evidence of Kamal (P.W.6) is concerned, she stated in the cross-examination that prior to the arrest of Balu by the Police, relations between her brother Ashok and accused person were strained and she also stated that they were strained on account of Balu. Balu after coming from Goa was initially residing with her brother Ashok and thereafter he shifted his residence to the house of accused No. 1 Nana. It was suggested to her that Balu was known to be Gunda for several years and was a history sheeter. Absolutely, there is nothing in the cross-examination of Kamal (P.W.6) to disbelieve her.

22. Even Rekha (P.W.7) has stood test of cross-examination. The omission was brought in her cross-examination that she did not state before Police that accused Raju was holding a knife. She stated that Hiraman Sapkale was not related to her. He was serving in Railways. It has come in the evidence of Kamal (P.W.6) that deceased Ashok was also serving in Indian Railways as a sweeper.

23. Moreover, if a person is injured and is being further attacked, he is bound to take steps for saving himself. So, such person may even enter house of stranger to save himself from further attack. Merely because Hiraman Sapkale is not examined is no reason to disbelieve eye witnesses. Rekha (P.W.7) did in her cross-examination admit that when accused had entered her house, at that time she had not seen weapons in their hands. She also denied that accused came abusing and giving threats while entering her house. She even stated that she did not see weapon in the hands of accused person when they were dragging her husband. But, she did say that her husband was injured with knife and we find support to this from evidence of Dr. Kavita Sontakke (P.W.1) examined at Exh.33.

24. Dr. Sontakke (P.W.1) stated that she found following external injuries on the person of deceased when she performed post-mortem between 01.00 p.m. to 02.10 p.m. on 01.12.1986.

(1) Stab wound on chest wall anteriorly, just above and lateral to the xiphsternum left 6th intercostal space of the size of 3/4" x 1/6" muscle deep, oblique in direction.

(2) Stab wound just below and lateral to the left anterior superior ilias pine 1" x 1/4" muscle deep.

(3) Two stab wounds on left glutial region 1/2" x 1/4" muscle deep both.

(4) Stab wound on poster medial aspect of left thigh on upper part 2" x 1/2" x muscle deep.

(5) Incised cut wound on the mid frontal region bone deep 2/ 1/2" x 1/4".

She also found following internal injuries.

(1) On thorax stab wound 3/4" through and through muscle, pleura torned at 6th and 7th intercostal space anteriorly. Left long middle to be of the left lung, puntuced by the corresponding injury on the chest. Then the pericardium of the heart punctured anterior wall of the right ventricle ruptured. Whole myocardium endocardium ruptured by the stab wound corresponding on chest wall. Pool of blood present. She further stated that heart and longs were ruptured due to the stab wounds corresponding to the stab wounds on the chest. All those external injuries were sufficient in the ordinary course of nature to cause death of the deceased. She also stated that those injuries were possible with knife (Article No. 2) which was attached from accused No. 1. In the cross-examination, she stated that patient Ashok might have died instantaneously having sustained all these injuries. A person may not be in a position to run even for a foot or so. It is argued by learned APP Shri Ghatage that when a person is facing murderous assault, it is possible that he might have run for some distance and entered house of Hiraman Sapkale. The opinion of doctor is general opinion. Statement of Vijayalaxmi (P.W.19) before Police does show that she saw deceased Ashok running towards house of Sapkale.

25. It is also argued before us that even deceased Ashok was having criminal background. In para 6 of his deposition, P.I. Kadve stated that deceased Ashok was recorded as a history sheeter and he was habitual offender in the record of the Police Station. There were 2-3 offences relating to property registered against him. It is argued by learned APP that such person, particularly at the age of 28 years might have been in a position to run some distance immediately after the assault. Since as per spot panchanama, bloodstains and bangle pieces were found at the place of incident shown by Kamal (P.W.6), we cannot rule out possibility of deceased Ashok running even after sustaining injuries.

26. Evidence of Kamal (P.W.6) shows that after she reached Police Station, she informed incident to Police and Police immediately came with her to the spot, but Ashok was not on the spot and it was informed that he was taken to the hospital. Sheela (P.W.5) informed Police that accused persons had run towards river and in a ravine near the river all the accused Nos. 1 to 8 were seen. But on seeing Police, accused Ashok and accused Dagadu ran away. Police caught remaining six accused namely accused No. 1 Nana, accused No. 2 Babanna, accused No. 3 Chhotelal, accused No. 4 Raju, accused No. 5 Mahadev and deceased Dinesh.

27. Evidence of P.I. Kadve (P.W.15) at Exh.82 shows that when he was in the Police Station Kamal (P.W.6) had come and narrated names of all the accused and said that they beat Ashok and he was lying in injured condition. He immediately with Police Staff and Kamal (P.W.6) went towards Bhimwadi in Police van. In Bhimwadi, Sheela told them that accused Nana and others had ran towards bank of river Tapi. So they went towards river. There accused Nos. 1 to 5 and deceased accused Dinesh were arrested. They were taken into custody and brought to the Police Station. In the Police Station P.I. Kadve (P.W.15) learnt that Ashok has died. Kamal (P.W.6) was with Police in the Police Station, so her complaint was recorded. The complaint was given at about 11=30 a.m. Kamal (P.W.6) also produced her bloodstained saree, which was seized under panchanama Exh.14. It was clear that no time was lost. Accused Nos. 1 to 5 i.e. Nana, Babanna, Chhotelal, Raju, Mahadev and deceased accused Dinesh were immediately arrested after the incident. So, there is immediate complaint, disclosure of names of the accused persons. There was no time for concoction. Absolutely, there is no reason to disbelieve Kamal (P.W.6) or Rekha (P.W.7).

28. P.I. Kadve (P.W.15) also stated that he seized Rampuri knife (article No. 2), one shirt and one full pant, one black shirt from accused No. 1 Nana in presence of panchas as per seizure panchanama Exh.48. He seized a shirt, full pan from accused Mahadev as per seizure panchanama Exh.49 in presence of panchas. He also seized the clothes from accused Chhotelal in presence of panchas as per seizure panchanama Exh.18. He seized clothes of deceased accused Dinesh as per seizure panchanama Exh. 17. He seized clothes of accused Babanna as per seizure panchanama Exh. 15. All these clothes were having bloodstains and therefore they were sent to C.A. He identified article Nos. 1 to 5 as knife and clothes attached from accused No. 1 Nana.

29. If we consider forwarding letter to C.A. Exh.93 and C.A. report Exh.22, it is clear that on the clothes of accused No. 1 which were article Nos. 2 and 3, so also on the clothes of accused No. 2 Babanna, which were article Nos. 5 to 7, on Saree of both Kamal (P.W.6) and Rekha (P.W.7), which were article Nos. 10 and 11 and on the clothes of deceased Ashok which were article Nos. 12 to 14, human blood was found and all these articles bore blood of "A" group. In other words blood of same group was found not only on the clothes of deceased and sarees of Kamal (P.W.6) and Rekha (P.W.7), but they were also found on the clothes of accused No. 1 and on the clothes of accused No. 2 Babanna. However, no bloodstains were found on the clothes of accused Mahadev. So-far-as Knife article No. 1 found with accused No. 1, it bore human blood but group could not be determined. In this case the samples of blood of accused and deceased were sent separately but result were inconclusive as can be seen from the C.A. reports.

30. In this case, if we consider totality of the circumstances, namely, immediate complaint lodged by the deceased Ashok at 9.00 a.m., evidence of Kamal (P.W.6) and Rekha (P.W.7), immediate complaint by Kamal (P.W.6), immediate arrest of the accused, finding of clothes stained with blood of same group on the person of accused No. 1 and 2, also finding knife in possession of accused No. 1 which was stained with human blood go a long way. Absolutely, there is no reason for Kamal (P.W.6) and Rekha (P.W.7) to depose falsely against any of the accused. Arrest of accused Nos. 1 to 5 and deceased accused Dinesh within half an hour after the incident speaks that prosecution case is true. In this case, we find prosecution evidence reliable, trustworthy. The incident must have happened as described.

31. However, so-far-as possession of weapons by all the accused persons who took part in the incident is concerned, the cross-examination of Rekha (P.W.7) and finding of only knife with accused No. 1 Nana raises some questions whether all accused had carried weapons? Police did not recover any weapon from any of the accused other than accused No. 1. There were in all five injuries on the person of deceased found by the Doctor. The motive for incident was that accused Ashok has informed Police about arrival of Balu and that was consequent arrest of Balu by Police. It may be noted that the accused persons had questioned deceased Ashok on earlier evening and though they gave threats when it was assured that they would get Balu released, no further action was taken. Similarly at 9.00 a.m. on next date, deceased Ashok was beaten with hand and kick for giving information to Police and he was also threatened to be killed, but only accused No. 1 Nana and accused No. 4 Raju were there.

32. We are doubtful whether all the accused shared intention to cause death of Ashok. We are also doubtful whether all the accused shared common object to cause death of Ashok. The evidence of Doctor shows that it was injury No. 1, which has caused death and that was inflicted by accused No. 1 Nana, who filed Criminal Appeal No. 114 of 1992 and who died pending the appeal. So-far-as other four incised wounds are concerned, three of them were muscle deep and fourth was bone deep. Considering the motive which prompted accused to teach lesson to deceased Ashok, we are more inclined to believe that accused persons did enter the house of deceased Ashok with intention and/or object to cause him hurt. They dragged him out and did cause him injuries. So, common object in our opinion was to cause him grievous injuries with deadly weapons. So, in our opinion all appellants except appellant No. 1 Nana have committed offence under Section 326 r/w 149 of IPC and only accused No. 1 Nana, who is since dead, has committed offence under Section 302 of IPC. In the circumstances, we are inclined to allow the appeal partly.

33. Though original accused No. 1 Nana Kedare has committed offence under Section 302 of IPC and other offences charged, since he has expired pending this appeal, the appeal has abated against him and already order to that effect is passed on 26.04.2006.

34. The learned advocate for the appellants cited some cases. First is Shankarlal Gyarasilal Dixit v. State of Maharashtra , but that was a case based on circumstantial evidence and it is observed that basing conviction on circumstantial evidence, there should be exclusion of other alternative hypothesis and circumstances must be compatible only with finding of guilt of the accused. In this case, there is evidence of eye-witnesses whose testimony in our opinion is reliable. The second case cited is Madkami Baja v. State 1985(1) Crime, Page No. 1063. The learned advocate relied upon observations made in Shankarlal's case, quoted in para 8. The Supreme Court in the quotation was considering that there could be different motives operating on the minds of different persons in the making of unfounded accusations and that human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. Our attention was also brought to quotations in para 13 from the case of Thulia Kali v. State of Tamilnadu . In that case effect of delay in lodging FIR was stated. In our opinion, there was no delay in lodging FIR. When police learnt that a murderous attack is being made on the brother of Kamal (P.W.6), their action in immediately rushing to the spot, trying to help injured and also action against accused could not be faulted with. There is nothing wrong in Police rushing to the spot to stop murderous assault or to help injured. In this case FIR is lodged immediately after police went to the spot and when found that deceased was already removed to the hospital, they arrested the accused and brought back to the Police Station and immediately complaint was lodged. It may be noted that the incident had taken place at about 10=00 to 10=30 a.m. and the complaint was given at about 11=00 to 11=30 a.m. We are not satisfied that there was any delay. It is argued before us that the prosecution did not examine Hiraman Sapkale or Balu or Khandagale as witnesses. Khandagale was the person near whose house the incident had occurred. In Sapkale's house deceased was found lying injured by Rekha (P.W.7). Balu was the person because of whose arrest the incident had occurred. Considering the manner in which accused have behaved, it is clear that they were goondas and it is doubtful whether any of said three witnesses would have supported prosecution. If we consider evidence of neighbours who are examined, none could muster sufficient courage to depose against the accused. The accused were dare-devils. They dragged out a man from his house and killed him in brought day light in presence of several persons. The motive established itself is sufficient to show what kind of accused persons are and in our opinion non-examination of above said three witnesses does not make any difference.

35. In the result the following order is passed:

i) The appeals are partly allowed.

ii) Already order of abatement of appeal is passed against appellant Nana Baburao Kedare in view of his death pending this appeal.

iii) Appellant Babanna Sayanna Telangi, Appellant Ashok Baburao Kedare, Appellant Dagadu Baburao Kedare, Appellant Chhotelal Brijlal Damade, Appellant Mahadeo Murlidhar Bonde and Appellant Raju Arjun Bhalerao are convicted of offence punishable under Section 326 read with Section 149 of IPC instead of Section 302 read with Section 149 of IPC. The sentence to undergo imprisonment for life and to pay fine of Rs. 200/-is set aside and for offence punishable under Section 326 read with Section 149 of IPC, the appellants are sentenced to suffer rigorous imprisonment for 5 (five) years and to pay fine of Rs. 500/- (Rs. Five Hundred) in default to undergo simple imprisonment for 15 (fifteen) days.

iv) We confirm order of conviction of these appellants for offences under Section 147, 148 and 452 r/w Section 149 of IPC.

v) Appellants' shall surrender to their bail to undergo remaining sentence.

vi) The appellants are entitled to set off for period during which they were under detention in this case in accordance with the provisions of Section 428 of the Code of Criminal Procedure, 1973.