Bombay High Court
Shivaji Sakharam Bhumre vs The State Of Maharashtra on 6 December, 2010
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
{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
{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
{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
{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
{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.
{11} Cri. Appeal 158/2008
3. 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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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
{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.
{35} Cri. Appeal 158/2008
38. 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
{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
{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
