Bombay High Court
State Of Maharashtra vs Yeshwant Limbaji Dadge And Ors on 14 August, 2015
Bench: S.S. Shinde
459.99 & 79.2000 Criappeal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 459 OF 1999
1. Padmakar S/o Baburao Dadge
Age : 19 years, Occ : agri.,
2. Deelip S/o Trimbak Shivange
Age : 28 years, Occ : agri.,
3. Suryakant S/o Yeshwant Dadge
4.
Age : 22 years, Occ : agri.,
Babruwahan S/o Yeshwanta Dadge
Age : 28 years, Occ : agri.,
5. Narsing S/o Baburao Dadge
Age : 28 years, Occ : agri.,
6. Bapurao S/o Amrata Dadge
Age : 50 years, Occ : agri.,
7. Babu S/o Limbaji Dadge
Age : 35 years, Occ : agri.,
All R/o Yelamwadi, Tq. Chakur,
Dist. Latur.
..APPELLANTS
-VERSUS-
State of Maharashtra
..RESPONDENT
...
Advocate for Appellants : Mr. Joydeep Chatterji a/w Mr.
V.D. Gunale
Advocate for Respondent/State : Mr. B.L. Dhas
Mr. P.N. Kutty- assist to P.P.
...
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459.99 & 79.2000 Criappeal
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WITH
CRIMINAL APPEAL NO. 79 OF 2000
The State of Maharashtra
..APPELLANT
-VERSUS-
1. Yeshwant S/o Limbaji Dadge
Age : 60 years, Occ : agri.,
2. Sanjay S/o Trimbak Shivange
Age : 25 years, Occ : agri.,
3. Sudhakar S/o Malhari Atnure
Age : 27 years, Occ : agri., & service,
4. Trimbak S/o Ramrao Shivange
Age : 50 years, Occ : agri.,
5. Vilas S/o Trimbakrao Shvange
Age : 20 years, Occ : agri.,
6. Shivaji S/o Trimbakrao Shivange
Age : 19 years, Occ : agri.,
7. Kamlakar S/o Baburao Dadge
Age : 19 years, Occ : agri.,
8. Balaji S/o Trimbakrao Shivange
Age : 19 years, Occ : education,
R.nos. 1, 2, 3, 7
R/o Yelamwadi, Tq. Chakur,
Dist. Latur.
R nos. 4, 5, 6, 8
R/o Yelamwadi, Tq. Chakur,
At present Anand Nagar, Latur.
..RESPONDENTS
...
APP for Appellant : Mr. B.L. Dhas
Advocates for Respondents : Mr. Jooydeep Chatterji & Mr.
V.D. Gunale
Mr. P.N. Kutty- Assist to P.P.
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459.99 & 79.2000 Criappeal
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CORAM : S.S. SHINDE &
A.I.S. CHEEMA, JJ.
RESERVED ON : July 20, 2015
PRONOUNCED ON : August 14, 2015
...
JUDGMENT (PER S.S. SHINDE,J):-
Criminal Appeal No. 459 of 1999 is filed by
the original accused nos. 2, 3, 4, 7, 8, 9 and 10, who
are convicted for the offence punishable under Sections
147, 148, 302 r/w 149, 325 r/w 149, 324 r/w 149 of
I.P.C. and under Section 135 of the Bombay Police Act.
Criminal Appeal No. 79 of 2000 is filed by
the State of Maharashtra, challenging the judgment
and order of acquittal passed by the Additional
Sessions Judge, Latur, acquitting the original accused
nos. 1, 5, 11, 12, 13, 14 and 15 for the offence
punishable under Sections 147, 148, 302 r/w 149, 307
r/w 149, 325 r/w 149 and 324 r/w 149 of I.P. Code
and under Section 135 of the Bombay Police Act.
459.99 & 79.2000 Criappeal
2. The brief facts of the prosecution case, are
as under :-
(i) One Muktabai W/o Shankar Gawali is
resident of Yelamwadi, Tq. Chakur, Dist. Latur. She is
living along with five sons namely Ashok, Balaji,
Sanjay, Vyankat and Baba and three daughters namely
Prabhawati, Ushatai and Vijatai. Her daughter
Prabhawati was married with Ranba (Ranba). Said
Ranba is having land at village Yelamwadi, and the field
of accused Trimbak Shivange (accused no.11) is
adjoining to his land. One and half month back of the
incident, Trimbak Shivange had quarrel with Ranba
Dadge over half acre of land. Since then the accused
Trimbak Shivange and his sons are on inimical terms
with complainant's family.
(ii) On 20.08.1998, Thursday, at about 8.00
a.m. her son-in-law deceased Ranba Dattu Dadge had
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come with milk-can to her house, and he was intending
to go outside. Shankar Eknath Gawali, who is husband
of Muktabai and son-in-law deceased Ranba, went to
the house of Manohar Patil for meal at about 8.30 a.m.,
on occasion of death anniversary of father of Manohar
Patil. They took the meal and again came to
complainant's house. Muktabai did prepare tea for
them. After drinking tea, her husband and deceased
Ranba, proceeded towards Nalegaon, on foot. They
travelled distance at about 50 to 60 spaces. Suddenly,
Muktabai heard commotion, and she started going
towards said direction. So in the meanwhile her
husband met her, who had received injury on his head.
The complainant went ahead and came to the spot and
saw that, the accused persons beating the deceased by
axe, sword, Kathi, sticks, etc. Accused Babruwan had a
sword, Suresh had a stick, Sudhakar had an iron bar,
Padmakar had Kathi, Kamalakar had a stick, Bapurao
had an iron bar, Narsing had a Kathi and Yeshwant
had a stick, and they were beating to deceased Ranba
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in pit, which is near to the house of Bapurao Amrata
Dadge. She told the accused not to beat, but accused
Baburao Dadge came near her and gave blow of axe on
her head. Then Bapurao Dadge beat her by iron bar on
her shoulder, thereby she received bleeding injuries.
Moreover, the accused persons assaulted deceased,
who died on the spot. The complainant in injured
condition went to lodge the complaint at Nalegaon, Tq.
Chakur. The Police sent her to the Govt. Hospital,
Nalegaon, wherein she was given medical treatment. As
per the version of the complainant, while beating
complainant, the accused abused her by uttering the
words that "Do you come there to lift the dead-body of
Ranba and hurry up, lift his dead-body". (vkrk dk; jkuckp
e<a mpyk; vkyh dk \ mpy R;kp e<a). Husband Shankar Gawali
was also admitted in the hospital. Then her complaint
(at Exh. 52) was recorded by the Police and both of
them were sent to Latur hospital for further medical
treatment.
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(iii) After this incident, the Police Sub-Inspector
received the information on phone, so he came there
and saw the dead-body. He called panchas and drew
the inquest panchanama Exh. 55 on the very same day
at about 2.00 p.m. Then the dead body was removed
and the spot-panchanama Exh. 56 was drawn on the
spot. Earth mixed with blood, simple earth, Jerman
can, shoes, clothes were attached under spot
panchanama Exh. 56. PW-3 Digamber Biradar acted as
panch witness.
(iv) Thereafter, Prabhakar Latange saw the spot,
so also the field of deceased Ranba. He saw that, house
of Ranba is damaged, so also the electric motor and
pipe line in his field was also damaged. Not only this,
the pipe line of Shankar Gawali and his electric motor
was also damaged. Accordingly, he drew the
panchanama Exh. 79 of the damaged house of
deceased Ranba. Similarly, he also drew panchanama
of pipeline and electric motor in the field of Shankar
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Gawali, which were damaged. Said panchanama is at
Exh.80. Then Police Sub-Inspector Prabhakar Latange
arrested 10 accused under the arrest panchanama
Exh. 81. Then he recorded the statements of witnesses.
On 22.08.1998, he received the postmortem report and
injury certificates of Muktabai and Shankar. On
23.08.1998 again he recorded the statements of
Shankar Gawali. Similarly, he seized the blood stained
cloth of Shankar Gawali and same was attached under
panchanama Exh. 64. He again seized the blood
stained cloth of Muktabai under panchanama Exh. 63.
(v) On 24.08.1998, he seized the blood stained
clothes of 8 accused and attached under panchanama
Exh. 82 to 89. On 25.08.1998, he interrogated accused
Yeshwant (accused No.1), Babu (accused No.10),
Suresh @ Suryakant (accused no.4), Babruwan Dadge
(accused No.7), Padmakar Dadge (accused no.2) under
panchanama Exh. 90 to 94. On interrogation with
them, the said accused agreed to produce the weapons
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namely sticks, axe, iron bar, sword and Kathi and
thereafter, they went in the field, where the accused
had hidden the weapons under the heap of fodder in
the field of Trimbak Shvange. They produced the
weapons and same were attached under panchanama
Exh. 90-A to 94-A.
(vi)
Then on 26.08.1998, again he called panch
witnesses namely Sham Sitaram and Devidas Patale.
Accused Narsing (Accused no.8), Bapurao Dadge
(accused No.9), Sanjay (Accused No.5), Deelip (Accused
no.3) and Sudhakar (Accused No.6), were interrogated
and on interrogation, they agreed to produce the
weapons which were in their houses and field.
Accordingly, the memorandum panchanamas Exh. 95
to 99 were drawn. Thereafter, the panch witnesses,
P.S.I., and accused went in jeep and entered in
Yelamwadi. Firstly, the accused Narsing produced
Kathi from his house, Bapurao produced iron bar and
Jambiya and then they went to their field, and accused
459.99 & 79.2000 Criappeal
Sanjay produced the axe from cattle-shed, Deelip
produced the blood stained axe from cattle-shed,
accused Sudhakar went in the field of Trimbak
Shivange took out the iron bar from the heap of fodder,
and produced the same, and accordingly, the
panchanamas Exh. 95-A to 99-A were drawn.
(vii)
On 29.08.1998 again he recorded the
statement of Muktabai and other witnesses. On this
very day, he seized blood of injured Shankar Gawali,
then he recorded supplementary statement. On
04.09.1998, he sent muddemal property through police
constable Jadhav for depositing in the C.A. Office for
analysis. He received the C.A. reports afterwards.
(viii) On 13.11.1998, he recorded the statements
of Mahadeo Shankar Gawali and on 17.11.1998, he
sent letter to Tahsildar, Chakur to draw the spot map.
He received all the case papers and on 18.11.1998, he
submitted the charge-sheet in the Court of Judicial
459.99 & 79.2000 Criappeal
Magistrate, First Class, Ahmedpur. The Judicial
Magistrate, First Class, Ahmedpur committed the case
to the Sessions Court.
(ix) Then the Sessions Court framed the charge
against the accused under sections 147, 148, 302 r/w
149, 307 r/w 149, 324 r/w 149 of the Indian Penal
Code and under Section 37(1)(3) r/w 135 of the
Bombay Police Act. It was read over and explained to
the accused. All accused pleaded not guilty and they
have claimed to be tried. The defence of the accused is
of total denial. However, they contended that, deceased
Ranba was murdered by other person and not by them.
The accused persons have not examined any defence
witness.
3. The trial Court, after recording the evidence
and hearing the parties, convicted the accused nos. 2,
3, 4, 7, 8, 9 and 10 for the offence punishable under
section 147 of I.P. Code and sentenced to suffer
459.99 & 79.2000 Criappeal
rigorous imprisonment for one year and to pay fine
Rs. 500/- (Rs. five hundred) each, in default, rigorous
imprisonment for one month. They are convicted for the
offence punishable under section 148 of I.P.Code and
sentenced to suffer rigorous imprisonment for one year
and to pay fine of Rs. 500/- (Rs. five hundred) each, in
default, rigorous imprisonment for one month. They
are convicted for the offence punishable under section
302 r/w section 149 of I.P. Code and sentenced to
suffer life imprisonment and to pay fine of Rs. 500/-
(Rs. five hundred) each, in default, rigorous
imprisonment for one year. They are also convicted for
the offence punishable under section 325 r/w section
149 of I.P.Code and sentenced to suffer rigorous
imprisonment for one year and to pay fine of Rs. 500/-
(Rs. five hundred) each, in default rigorous
imprisonment for one month. They are convicted for the
offence punishable under section 324 r/w section 149
of I.P. Code and they are sentenced to suffer rigorous
imprisonment for one year and to pay fine Rs. 500/-
459.99 & 79.2000 Criappeal
(Rs. five hundred) each, in default rigorous
imprisonment for one month. They are also convicted
for the offence punishable under section 135 of the
Bombay Police Act and sentenced to suffer rigorous
imprisonment for one month and to pay fine of Rs.
100/- (Rs. one hundred) each, in default rigorous
imprisonment for fifteen days. The trial Court has
acquitted the appellant - accused for the offence
punishable under section 307 r/w 149 of I.P. Code.
4. The learned counsel appearing for the
appellant in Criminal Appeal No. 459/1999 submits
that, the impugned judgment and order is based on
wrong appreciation of facts and evidence on record. The
impugned judgment and order is erroneous, against the
settled principles of law and also contrary to the settled
principles of appreciation of evidence on record, in a
criminal case. The trial Court has committed an error
in not analyzing and appreciating the case laws, cited
by the defence, which has resulted in serious prejudice
459.99 & 79.2000 Criappeal
to the accused persons. The appellants - accused are
prejudiced as the trial Court has not scanned and
marshaled the prosecution evidence in its proper
perspective. The findings on the issues framed by the
trial court are not properly answered with a definite
conclusion, so as to demonstrate the reasons for the
conviction of the present appellants.
5. It is submitted that, section 149 of IP Code
creates a specific offence and deals with the
punishment of that offence. Whenever Court convicts a
person/s for an offence, with the aid and assistance of
section 149 of IP Code, a clear findings regarding
common object of the assembly is to be given and the
evidence discussed must show not only the nature of
the common object but also the object was unlawful. In
this case, reading the medical evidence in general and
particularly, the Doctor's explanation, on the nature
and number of injuries in cross examination, it would
appear that the object of the alleged unlawful assembly,
459.99 & 79.2000 Criappeal
in this case on the face of the prosecution story, could
not be said to be the object to commit murder of Ranba
Dadge and therefore, the charge u/s. 302 r/w. section
149 of IP Code fails on that count. The charge is also
not substantiated by the prosecution evidence as well.
6. It is submitted that, the only motive alleged
by the prosecution is against the accused Shivange
family because of the trifle dispute between them on
account of adjacent agricultural lands, while no motive
whatsoever is alleged against the rest of the accused.
The PW-1, Muktabai, mother-in-law of deceased Ranba
admits that, her family and members of Shivange
family, being living in the neighbourhood of each other
in the village were on cordial and visiting terms till the
initiation of the civil and criminal litigation about two
months prior to the incident. Thus, there was no other
reason to complaint against each other on any count.
7. It is submitted that, FIR though not a
459.99 & 79.2000 Criappeal
substantive piece of evidence is not a less extremely
important piece of evidence and because of the havoc,
which tampered FIR can play upon an innocent person,
it needs close scrutiny, particularly when, it is lodged
by an interested and inimical person/s closely related
to the deceased and that being the first document in
time to serve the intent of legislature, as demonstrated
under the provisions of Section 154 of Cr.P.C. in such
cases, the FIR is treated as a touch-stone of the
prosecution case. In this case, FIR was allegedly lodged
by PW-1, Muktabai to PSI J.D.Kolekar, in the Hospital
at Nalegaon on 20.08.1998 [Exh.52]. Significantly, the
actual time when the FIR was recorded by the PSI, has
not been mentioned on it. This FIR was registered by
the Police in the Station Diary maintained by the Police
Station, Chakur, at 1.00 p.m. It is submitted that, the
information given by PW-1, Muktabai, to the PSI, was
not all the first FIR. The Station Diary Entry No. 21
[Exh.70] has an information of an offence of cognizable
nature, which was taken on the oral information lodged
459.99 & 79.2000 Criappeal
by Prabhavati, wife of the deceased Ranba, who was
accompanied by her brother Vyankat Shankar Gawali.
This witness, Vyankat Shankar Gawali, who was cited
as an eye witness to the alleged incident, was not
examined by the Court in prosecution case. A bare
look at the Station Diary Entry No. 21 [Exh.70] goes to
show that, the facts narrated by Prabhavati and
Vyankat Gawali were nothing short of information of a
cognizable offence, yet no FIR was registered by the
Police. No copy of it was given to the Judicial
Magistrate First Class by Police. Instead of showing the
entry made in the Station Diary, the police left for
Hospital at Nalegaon, where they claimed to have
recorded statement of PW-1, Muktabai, mother-in-law
of deceased. Thus, the alleged FIR [Exh.52], purely
being a statement, recorded by the police under Section
161 of Cr.P.C., is hit by section 162 of the Criminal
Procedure Code. The Lower Court erred in not
appreciating these vital points of importance
concerning the FIR in this case. The height of the
459.99 & 79.2000 Criappeal
things is that, the prosecution did not choose to prove
the contents of the FIR recorded in the Station Diary
Entry No. 21 [Exh.70].
8. It is submitted that, the prosecution has
examined three witnesses as eye witnesses viz. PW-1
Muktabai, mother-in-law of deceased Ranba, PW-2
Madhav Shankar Gawali, brother-in-law of the
deceased and PW-4 Shankar S/o. Eknath Gawali, who
are closely related to the deceased Ranba. PW-1 and
PW-4 are injured witnesses, who were hospitalized for
some time at the Primary Health Centre, Nalegaon, and
thereafter, in the Civil Hospital at Latur. PW-1
Muktabai, who is cited as informant and whose
information is treated as FIR [Exh.52], disowns in clear
terms the material portions in the said complaint, with
a view to claim herself to be an eye witness. The
witness was confronted by the prosecution itself, about
the material part marked 'A' in Exh.52, which wipes out
the possibility of this witness being an eye witness. PW-
459.99 & 79.2000 Criappeal
1 Muktabai admits in clear and unambiguous term
that, though she was interrogated by PSI Kolekar in the
Hospital at Nalegaon, she did not give anything in
writing, so much so, that she claims that her two
thumb impression were only obtained, on two separate
papers in the Civil Hospital at Latur, by some unknown
Police Officer. In short, the FIR [Exh.52] stands
substantially disowned by the witness PW-1 Muktabai.
9. It is submitted that, PW-2 Madhav Shankar
Gawali, the youngest brother-in-law of deceased Ranba,
is a school going boy. It is curious and surprising to
mention here that, the police have recorded the
statement of Madhav Gawali, after 2 and ½ months of
the alleged incident. The FIR does not remotely
discloses that, Madhav was present at the scene of
offence when the alleged assault was going on. His
testimony seems to be a tutored one and does not
inspire much confidence. His testimony sounds
improbable in nature and is false one. PW-2 Madhav
459.99 & 79.2000 Criappeal
admits in cross examination that, though he knew that
his parents were injured and were hospitalized, he
never cared to see them by going to the Hospital till
they were discharged. He claims to be almost in the
company of police moving from place to place, yet he
admits to have not disclosed about having seen the
incident to anyone, except the Investigating Officer. No
explanation came from the prosecution side for the
reason of delayed recording of his statement. Thus, the
evidence of this witness is unreliable. It is submitted
that, PW-4 Shankar Eknath Gawali, is father-in-law of
deceased Ranba. He claims to have been hospitalized
for a long period, for the reasons not known. Though
he was admittedly very much available to the PSI
Kolekar in the Hospital at Nalegaon, by the side of his
wife Muktabai, he was not interrogated at all by the
PSI. The PSI also admits to have not recorded his
statement during investigation at his hands. His
statement was recorded in the Civil Hospital at Latur,
by the police of Gandhi Police Chowk, Latur and then,
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by the Investigating Officer, on the next date.
10. It is submitted that on the dead body of
deceased Ranba Dadge, at the time of postmortem
examination, the Medical Officer [PW-11] Dr. Banate,
found in all 14 external injuries, out of which the injury
no. 2 was an incise wound, over inter-scapular region,
on right side of 1 & ½ x 1 & ½, in size, caused by sharp
weapon. All other injuries, admittedly, according to the
Medical Officer must have been caused by blunt
objects. Injury nos. 9, 11, 14 are fractures, noted on
the Tibia and Humerous of the Body and rest of the
injuries were simple in nature. Dr. Banate [PW-11]
admits in cross examination that, except injury no.2,
other injuries were on non vital parts of the body of
deceased and none of those injuries were dangerous to
life. The fracture injuries were shown to be irregular in
nature and there was no external injury noticed by the
Medical Officer corresponding to the fracture injury.
This shows that fractures may have been suffered by
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the deceased by any other means other than blows
inflicted upon those parts, by the weapons, as alleged
by the prosecution. The Medical Officer admits in para
no. 6 of his cross examination that, such injuries may
often be possibly caused by objects like stones.
11. It is submitted that, injury no.2 though
shown as an incised wound, admittedly, did not cause
any internal damage, which was noticed by the Doctor
on internal examination of the dead body and,
therefore, it was a simple incise wound. The cause of
death is shown 'hemorrhagic shock' and admittedly, the
death was not instantaneous. On the contrary, the
Medical Officer admits and has even shown in
postmortem notes that the period involved between
infliction of injuries and death of Ranba, covers a span
of eight hours. This aspect of the medical evidence
rules out any murderous assault by dangerous
weapons by the assailants. As regards the injuries
suffered by the alleged eye witnesses i.e. PW-1
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Muktabai and PW-4 Shankar, it is submitted that,
Muktabai suffered four injuries. Injury no. 2 is result
of injury no. 1 and except the fracture on the wrist
joint, other injuries are simple in nature and they being
irregular in shape, must have been caused in stone
pelting. The prosecution did not adduce any evidence
to show that either of the injuries suffered by PW-1,
Muktabai, was likely to result in her death. As regards
the injuries suffered by PW-4, Shankar, one contusion
over Occipital region, irregular and oblique and second
injury was also a contusion, over right arm, irregular in
nature. Injury no. 1 is shown to be grievous while
injury no. 2 is simple in nature. Both the injuries are
not testified to be of serious in nature and such
injuries, according to the Medical Officer, can be
caused by any blunt object like stick or stone.
12. It is submitted that, the prosecution
adduced evidence of panch witness regarding seizure of
the clothes from the person of accused nos. 1 to 10.
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Admittedly, the Investigating Officer did not seize so
called blood stained clothes from the person of the
accused on the date of their arrest i.e. 21.08.1998. As
admitted, the police could not seize the blood stains on
their clothes, but claims to have seized those very
clothes from the person of accused on 24.08.1998,
which creates a great suspicion upon the alleged
seizure of blood stained clothes. The panch witness,
examined to prove the seizure of clothes, did not
support the prosecution case and was declared hostile.
No other panch witness was examined to prove the
contents of the panchanama. The prosecution claims
to have recovered different weapons with some blood
stains belatedly from the field of accused no.11
-Trimbak Shivange at village Yelamwadi. This fact of
recovery of weapons from the field of accused no.11
Trimbak, smacks of artificiality in drawing
panchanama. It is come in the evidence of Investigating
Officer Shri Latange that, all blood articles seized and
recovered from the accused were kept in the custody of
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the police of Police Station, Chakur, for some days
before they were discharged for Chemical Analyzer's
examination. No evidence is put forth on the point of
custody of the articles showing that they were kept
under seal. The Investigating Officer failed to obtain
signature / thumb impression of the individual accused
on the seizure panchanama exhibited in this case and
hence the said panchanama cannot be taken into
consideration for convicting the appellants.
13. It is submitted that, the trial Court has
wrongly appreciated the contradictions and omissions
brought on record by the defence, without discussing
and appreciating the same, by observing that, they are
not material in this case. It is submitted that, the trial
Court in para 28 of the Judgment observed that, as the
accused persons are having agricultural lands,
naturally, they have grudge against the deceased. The
trial Court referring to evidence of PW-2, Madhav in
para 32 of the Judgment stated that, the statement of
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Madhav was recovered 2 and ½ months after the
incident and this was termed by trial Court to be an act
of mischief by police. The trial Court while appreciating
the evidence of PW-2, Madhav, observed that, why the
Police Officer did not record Madhav's statement and
further observed, any way his [Madhav's] evidence is
not so much of importance, though he [Madhav] was
cited as eye witness. The statements to be recorded
under Section 313 of Cr.P.C. were not properly
recorded and considered by the trial Court. On the
point of FIR, the trial Court in para 45 of the Judgment
observed that, the FIR does not mean a statement, but
it is information given to the Police Officer of the
incident in detail. On late receipt of FIR by the Court of
Judicial Magistrate First Class i.e. after five days, the
trial Court observed that, the FIR is registered on the
very day, but it was received by the Court after five
days and late receipt of FIR does not call for any help to
the accused persons. The trial Court further replied
the argument of the defence by stating that, anyway I
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am not inclined to accept this contention.
14. It is submitted that, the trial Court did not
offer clear cut findings, based on conclusions arrived at
after a proper appreciation of evidence on record,
regarding the guilt of the appellants and their
conviction and sentence, for the offence for which they
are convicted. There is no clear cut findings as regards
the conviction under section 302 r/w. 149 of IP Code,
in view of acquittal of rest of the accused persons, on
the same prosecution evidence. The learned counsel
appearing for the appellants-accused submits that, in
view of the peculiar facts of this case, and the evidence
on record, the conviction of the appellants under
Section 302 of IP Code is wrong and illegal. Therefore,
he submits that, the impugned order deserves to be set
aside.
15. On the other hand, the learned Additional
Public Prosecutor appearing for the State submits that,
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when PW-1 and PW-4 and also PW-3 have stated the
presence of all the accused and also stated that, they
were holding the weapons, each member of unlawful
assembly irrespective of overt act attributed to such
member, is equally responsible for the murder of
Ranba. It is submitted that, there is direct evidence of
PW-1, PW-2 and PW-4 and also other witnesses,
therefore, there was no reason for the trial Court to
acquit some of the accused. It is submitted that, so far
order of conviction to 7 accused is perfectly sustainable
in law. Trial Court has discussed in detail the entire
evidence and thereafter, recorded the cogent findings
which need no interference. The learned Additional
Public Prosecutor assisted by Mr. P.N. Kutty, the
learned counsel appearing for the complainant also
invited our attention to the notes of evidence and
submits that, the appeal filed by the State deserves to
be allowed and the appeal filed by the convicted
accused deserves to be dismissed.
459.99 & 79.2000 Criappeal
16. The prosecution examined Muktabai W/o
Shankar Gawali as PW-1. In her deposition, she stated
that, her elder daughter Prabhawati was married with
Ranba Dadge (deceased), resident of Yellamwadi. Said
Ranba had 15 to 20 acres land at village Yellamwadi.
He had four sons. He himself with his family members
used to cultivate the said land. It appears from the
evidence of PW-1 that, in Yellamwadi, there are 52 to
60 houses and population might be 400 to 500 people.
It further appears that, this witness knew Yeshwant
Dadge and others, who according to her belong to her
community. However, according to her version, the
accused are not belonging to her caste. She further
deposed that, the field of her son-in-law Ranba is
adjacent to the field of Trimbak Shivage. Said Trimbak
demanded half acre land to Ranba. However, Ranba
refused to give half acre of land. Said Trimbak entered
in the said field and started ploughing in the said land.
The son of Ranba Dadge obstructed Trimbak. Trimbak
bet Dharmraj and in that respect criminal case was
459.99 & 79.2000 Criappeal
filed by Trimbak. Therefore, the relations between them
were not cordial.
The incident in question took place one year
prior to recording of evidence of PW-1. The said incident
had taken place at about 9 a.m. According to PW-1,
Ranba came to her house from field, on invitation of
Manohar Patil. There was death anniversary of father of
Manohar Patil. Husband of PW-1 and Ranba went for
meal to the house of Manohar Patil. It further appears
that, both of them returned back to the house, then
PW-1 prepared tea for them and thereafter husband of
PW-1 and Ranba started going to Nalegaon on foot.
They crossed a distance of about 50 to 60 spaces. PW-1
heard commotion and she came outside. She rushed
towards water tank. She saw that, the accused were
beating Ranba. Their names are Babu Dadge,
Padmakar, Kamlakar, Bapurao, Narsing, Yeshwant
Dadge, Babruwan Dadge, Suresh Dadge, Sudhakar,
Trimbak Shivange, Dilip Shivange, Vilas Shivange,
459.99 & 79.2000 Criappeal
Sanjay Shivange, Balaji shivange, Shivaji Shivange. She
stated that, accused - Babu Dadge bet by axe. Accused
-Padmakar bet by Katti, Accused - Kamlakar bet by
stick, Accused - Bapurao Dadge bet by iron bar.
Accused - Narsing bet by Katti, Accused - Yeshwant bet
by stick, Accused-Babruwan bet by sword, Accused -
Suresh bet by stick and Sudhakar bet by iron bar. She
further deposed that, she received bleeding injuries.
Then accused pushed Ranba by using their legs. Then
she went to Nalegaon Out-post. The police sent her to
government Hospital, Nalegaon for treatment. P.S.I.
came and recorded her statement and obtained thumb
impression. She identified the contents of F.I.R. except
portion mark `A'. Portion mark `A' as it appears in the
First Information Report reads thus; "within short time,
her husband Shankar came to house, at that time his
turban was there, so he said give us and, he slept
there". She was further examined and she stated that,
she was in the hospital at Nalegaon for short time and
then she was sent to Latur hospital. She was admitted
459.99 & 79.2000 Criappeal
there. The treatment was given to her. Then Police
came to her for enquiry. She was in hospital for 20
days. Her blood stained clothes were attached by the
Police. Her statement was recorded by the Police twice.
She identified weapons shown to her before the Court.
She was cross-examined by the Advocate of
the accused. It appears that, certain questions were
asked to her about caste of the accused persons and
some persons from her community. She stated that,
accused Shivange is from different caste. Her house
and house of Shivange are having road in between and
said road is of 2 ft. Infront of house, there are houses of
Dadge, Survase, Kale etc. There is a road of 2 cubmits
in between her own house and Maroti Temple. If one
can stand in open court yard of their house, the idol of
Maruti is visible. She stated that, the place where
Ranba was lying, there was wall of loose stone, and the
house of Dashrath Dadge was near to it. She further
stated about adjoining houses of said spot. It appears
459.99 & 79.2000 Criappeal
that, defence tried to elucidate from cross that, the
place where Ranba was lying is crowded and visible
place. It further appears that, during her cross-
examination, she admitted that, her son-in-law Ranba
has one brother by name Gyanoba. Deceased Ranba,
Prabhawatibai and her sons are residing in the house,
which is in the field. His field is less than 3 Kms away
from the village. In one survey number, there are
shares of Babu Dadge, Yeshwant Dadge, Gnyanoba
Dadge and Bapurao Dadge and her son-in-law Ranba.
The said survey numbers are divided north south, and
from western side Babu and Yeshwant and on eastern
side Ranba and Gyanoba have their shares. Gyanoba
had executed the sale deed of his share to accused -
Dilip Shivange. Said Shivange is in possession of the
purchased land from Gnyanoba. Said land was
purchased by Shivange 10 years back. She further
stated that, there was dispute on common boundary in
between field of Shivange and Ranba, and therefore,
there was some misunderstanding. She further deposed
459.99 & 79.2000 Criappeal
that, accused Shivange and Balaji are taking education
at Ahmedpur and Latur. Shivange family had one Adat
shop at Latur. Accused - Trimbak and Vilas are looking
after the business. One or two months prior to incident,
the dispute started between sons of Trimbak and
deceased Ranba and his sons. There are civil and
criminal proceedings pending in Ahmedpur court in
between them. Family of PW-1 and said Shivange was
not on talking terms. So far actual incident is
concerned, she stated that, when commotion started,
that time she was in her house. She was doing
household work with her daughter-in-law inside the
house. She denied suggestion that, at the relevant time
it did not happen that her husband entered in the
courtyard of house and he was bare headed and slept
on the wooden plunk. She further denied the
suggestion that, husband asked her to bring his
turban. It appears that, the defence tried to elucidate
from her cross-examination that, in first information
report she stated that, her husband received injuries
459.99 & 79.2000 Criappeal
and he entered the courtyard of house and she saw
that, he was bare headed and slept on the wooden
plunk. It appears that, aforementioned portion from the
first information was confronted to this witness during
cross-examination, which she denied. She further
stated that, police officer, who wrote her complaint, did
not reduce in writing said complaint as per her
narration. There were 5-6 policemen with him. Her
thumb impression was obtained in Latur. She did not
know which police had taken thumb marks. She also
stated that, she did not know the said police officers
were from Latur or Chakur Police Station. She further
stated that, the contents of the said first information
report were not read over to her. She further deposed
that, she did not tell the police that, except accused
nos. 9 and 10, other accused were seen standing on the
spot. The other accused standing there written in the
complaint, is false. She did not tell the Police when she
went to the spot. She saw her son-in-law Ranba lying in
the injured condition near the house of Bapurao Dadge.
459.99 & 79.2000 Criappeal
The said portion from her first information report,
which is marked as portion mark `B', is false. It
appears that, while recording the cross-examination,
this witness stated in clause 15 of her cross
examination that, "Today on 20.08.1998 at about 9.00
a.m. I was in the house and my husband Shankar
came to the house, he received the injury to his head
and he told me about it and he was standing in open
court yard is not correct". She did not tell to the police
of Latur. She did not know how and when he received
injuries. She did not ask him how he received injury,
and who caused it, and who bet him and for what
reason. She denied the suggestion that, she herself and
husband went outside near the Water-Tank. The
portion mark "C" and "D", she did not state to police. It
is wrongly written. She also denied portion mark `A'
from her statement before the Police. She denied the
suggestion that, there were 100 persons gathered at the
place of incident. She denied suggestion that, she did
not sustain injuries due to assault by sharp weapon by
459.99 & 79.2000 Criappeal
the accused. She also denied the suggestion that, she
did not know how her son-in-law was injured and by
whom. She further denied suggestion that due to the
earlier dispute between family of Ranba and Shivange,
she tried to implicate the other members of the family
of Shivange.
17.
Upon considering the evidence of this
witness in its entirety, it appears that, she herself did
not witness the said incident of killing Ranba. It
appears that, portion marked from her police statement
and also complaint was confronted to her during her
cross-examination and the defence is successful in
bringing on record that, there is substantial
improvement in her deposition before the Court about
witnessing of actual incident of killing of Ranba. It is
brought on record by the defence through cross-
examination of Investigating Officers that, the said
portion marks `A', `B', `C', `D' and `F' from the police
statement was stated by her while recording her
459.99 & 79.2000 Criappeal
statement. However, the fact remains that, she
immediately went to the spot of the incident, wherein
she saw Babu Dadge, Padmakar, Kamlakar, Bapurao,
Narsing, Yeshwant Dadge, Babruwan Dadge, Suresh
Dadge, Sudhakar, Trimbak Shivange, Dilip Shivange,
Vilas Shivange, Sanjay Shivange, Balaji shivange,
Shivaji Shivange standing there. As a matter of fact,
when she went on spot of the incident, she was
assaulted and sustained injuries, and was
hospitalized. As stated by her, she was in the hospital
for 20 days. In her evidence, she categorically deposed
that, accused Babu Dadge assaulted her by axe.
Accused -Padmakar and Bapurao Dadge assaulted by
iron bar. Therefore, so far as aforementioned accused
are concerned, it is abundantly clear that, overt acts
are attributed to them and, presence of accused at the
spot is clearly established through evidence of this
witness.
18. The prosecution examined Madhav Shankar
459.99 & 79.2000 Criappeal
Gawali as PW-2. Since his statement was recorded after
2 and 1/2 months by the police, after the date of
incident, the trial Court did not place reliance on the
said statement.
19. The prosecution has examined Digambar
Madhavrao Biradar as PW-3. He is a witness for inquest
panchanama. His evidence inspires confidence. He
stated about injuries on dead body of Ranba.
20. The prosecution examined Shankar Eknath
Gawali as PW-4. In his examination-in-chief, he stated
that, deceased Ranba Dadge was his son-in-law. He
was resident of Yellamwadi. He died last year on the
`Khand Malni' day i.e. during the period of `Pola
Festival'. On that day there was invitation to attend
death anniversary of father of Manohar Patil at about
8.00 a.m. Therefore, he himself and deceased Ranba
went there, taken meal and came back to his house.
His wife served tea to them. Thereafter, he himself and
459.99 & 79.2000 Criappeal
Ranba, proceeded for Nalegaon with milk can for selling
the same. At about 9.00 a.m. they came near Water-
Tank. Accused Babu Dadge and other accused came
there. Accused Babu gave blow of axe on the neck of
Ranba. Accused Bapurao bet by iron bar, accused -
Dilip Shivange bet by axe, accused- Babru Dadge hit by
sword. Shankar tried to rescue Ranba, when accused
Babu Dadge hit him by axe on his head and Bapurao
bet him by iron bar, then they pushed him. In
meanwhile, his daughter-in-laws came there and took
him in the house. He received bleeding injuries to his
head. Then his wife went towards Ranba and she was
also beaten by accused persons. He fell down on the
wooden plank. Then the police came there and he went
with them at Nalegaon. Then they sent him to the
Hospital at Nalegaon. The Medical Officer sent him at
Latur Hospital. He was in the hospital for 10-12 days.
The policemen from Latur came in the Hospital and
recorded his statement. the policemen seized his
clothes. He identified the shirt article No.11. He further
459.99 & 79.2000 Criappeal
stated that, the name of other accused are Trimbak,
Dilip, Bapu, Babru Dadge, Sanjy, Vilas, Balu, Shivaji,
Atnoore, Padam Dadge, and they were possessing
sticks and axe. They were beating to Ranba. He
identified the accused present in the Court. (Underlines
supplied)
21.
In cross-examination this witness stated
that, Maroti temple is adjoining to his house. Police
from Latur interrogated him in the hospital at Latur. He
denied the suggestion that, 5-6 persons, who assaulted
son-in-law Ranba, were unknown to him. He stated
that, the statement that, 5-6 persons were unknown to
him, recorded by the Police is not correct. He denied
suggestion that, he did not tell before the Police that,
accused Babruwan bet by sword. He reiterated his
version in examination-in-chief that, the accused
persons, who are named in the examination in chief
assaulted him by axe and iron bar. He denied the
suggestion that, except accused nos. 8, 9 and 10, other
459.99 & 79.2000 Criappeal
accused persons were simply found present on the
spot. He denied the portion mark `A' from the police
statement. He stated that, manner in which portion
mark `A' is written by the police was never stated by
him. Upon careful perusal of his examination in cross,
nothing substantial has been brought on record by the
defence, so as to disbelieve his version. On the
contrary, he has stated presence of accused persons on
the spot and also he has attributed the overt act to the
some of the accused. He himself is injured witness, and
therefore, his testimony inspires confidence and is
totally believable, and therefore, same can be safely
relied upon. He has in detail stated the manner in
which the incident had taken place. He attributed overt
act to the some of the accused. He has stated names of
accused, who were armed and present on the spot. He
has stated name of Trimbak, Dilip, Bapu, Babru Dage,
Sanju, Vilas, Balu, Shivaji, Atnoore, Padam Dadge in
his examination-in-chief. He stated that, they were
holding the arms. It is also stated by him that, all the
459.99 & 79.2000 Criappeal
above accused, whose names are mentioned, were also
beating Ranba though he has not attributed specific
overt act to them. However, in his evidence, he has
fairly stated that, his daughter-in-law came on the spot
and took him to the house.
22.
Prosecution examined Angad Nivruttirao
Halgare as PW-5. In his deposition, he stated that, he
was P.S.I. attached to Police Station, Chakur was on
duly, on 20th August, 1998, from 10 a.m. till 10 a.m. on
next day i.e. 21.08.1998. On 20 th August, 1998 the Out
Post Nalegaon recorded the complaint of Muktabai.
Said complaint was brought to PW-5 by Police
Constable Sonhivare. PW-5 read the complaint. He
registered the offence being Crime No. 134/98 under
sections 302, 307 etc of I.P.C. Accordingly, he made
endorsement on the said complaint. He identified his
signature. He also identified the complaint dated
20.08.1998, which bears his signature. He further
459.99 & 79.2000 Criappeal
stated that, after registering the offence, he handed
over the papers for investigation to P.S.I. Kolekar,
Nalegaon.
During his cross examination, he denied the
suggestion that, he did not receive the complaint at
about 1 p.m. on the date of incident nor he has
registered the offence nor sent the First Information
Report to the Court.
23. Prosecution examined Uttam Raghunath
Jadhav as PW-6. In his deposition, he stated that, on
04.09.1998 he was given duty to deposit the muddemal
property in Cr. No. 134/98. C.P.I. Latange given him
the letter. He further stated that, he received the
muddemal property in sealed condition. On
07.09.1998, he deposited the muddemal property in the
C.A. office, Aurangabad. He obtained the signature on
Exhibit-61.
459.99 & 79.2000 Criappeal
24. The defence counsel cross-examined PW-6.
In his cross-examination, he stated that, each items
were properly sealed. They were kept in one box.
Chakur-Latur road is 4 Kms. He left Chakur Police
Station on 6th September, 1998 at about 00.25 hours.
Latur road to Aurangabad is 7 hours journey. On 4 th
September, 1998, he received muddemal property in
Police Station at about 8.00 p.m. Those articles were
in his custody in the Police Station for two days.
25. The learned counsel appearing for the
convicted accused argued that, since the articles were
lying in the custody for two days, there was possibility
of tampering with the said articles. Therefore, the said
recovery is not believable. In fact, this witness has
stated in his cross examination that, each items were
sealed and they were kept in one box. Therefore,
though those articles were in custody for two days in
the Police Station, it cannot be said that, those were
lying without sealing and there was possibility of
459.99 & 79.2000 Criappeal
tampering with the said articles.
26. The prosecution examined Gowardhan
Dhanaji Kolekar as PW-7. In his examination-in-chief,
he stated that, on 20.08.1998, he was attached to
Police Station Chakur. On that day at about 5.00 a.m.,
he himself and his staff went to Ghute Ghugi Tanda
and Wadwal and Janwal for prohibition raid. At about
10.45 a.m., he was returning after completing the
prohibition raid. He came to village Gharani. He
received message on wireless about incident on that
day. Accordingly, he proceeded towards Yellamwadi.
Some of the staff went to Police Station, and some of
the staff members accompanied him, and they came to
Yellamwadi in a Jeep. He came to the Chowk of
Nalegaon and learnt that, one woman injured was sent
to Nalegaon Hospital. He went straight way to the
Government Hospital, Nalegaon. One injured woman
was admitted there. He saw her. He made an inquiry
to the Doctor about her condition. The Doctor told him
459.99 & 79.2000 Criappeal
that, she is serious, but in conscious condition. He
asked her name and she told that her name is
Muktabai w/o. Shankar Gawali, aged 60 Years,
Resident of Yellamwadi. He recorded her complaint as
per her say. It was read over to her. He obtained her
thumb mark on it. He signed on it. He identified
Exhibit 52 and stated that, the contents thereof are
correct.
27. He further stated that, he gave letter to the
Photographer namely Sanjay Shrangare, resident of
Nalegaon. The photographs were shown to him and he
identified the same. He further stated that, thereafter,
he sent the complaint [Exhibit-52] to the Police Station
Chakur through the Police Constable B. No.474. Then,
he sent some constables to the spot. The constable
brought Shankar Gawali in a Hospital, who received
serious injury. Then, he was referred to Nalegaon
Hospital. He was given treatment. Thereafter,
Muktabai and Shankar were sent to Latur Hospital by
the Medical Officer in the Police Jeep. Thereafter, he
459.99 & 79.2000 Criappeal
went to the spot at Yellamwadi. He drew panchanama.
He saw the mother of deceased was weeping there.
Some persons had come there to see the dead body, so
he called two panchas namely Digamber and Sitaji
Raghu Jadhav. He drew the inquest panchanama at
Exh.55. The inquest panchanama was signed by him
and the panch witnesses. Thereafter, the dead body
was sent to the Hospital. Thereafter, he drew the spot
panchanama at Exh.56, which is attested by him and
signed by the panchas. From the spot, one blood mixed
stone, cap having blood stain, shoes, catali, blood
mixed earth, plain earth were attached under the same
panchanama. He obtained the signatures of panchas.
Then he sealed the stone and earth in a pocket. He
identified property and also identified the shoes article
no.2, catali article no.4, stone article no.3 and cap
article no. 1.
28. He further stated that, then he sent the
police staff to take the search of accused. But they
could not arrest accused since they were not found.
459.99 & 79.2000 Criappeal
Then he recorded the statements of witnesses. The
Police Constable Pandharge brought the clothes of the
deceased after postmortem, same were seized and
attached under the panchanama. He identified the
panchanama at Exhibit 67. Then, Deputy S.P.
Shankarrao had come there and asked him to transfer
further investigation to Shri Latange. He further stated
that, he was at Chakur for two years. In the month of
June, six months back one rioting offence was
happened and the complaint was filed by Dharma
Ranba Dadge. It was filed against Trimbak Shivange
and others. He submitted charge sheet against 8
persons. Again the son of Trimbak Shivange namely
Dilip lodged complaint against Ranba and Dharmaraj.
He investigated the case and submitted the charge
sheet. Ranba and his son had burnt the heap of fodder
belonging to Trimbak Shivange, so his son had filed
complaint under Section 435 of IP Code. He did the
investigation. Thereafter, he called both the parties
and told them not to quarrel and thereby he gave
459.99 & 79.2000 Criappeal
understanding to both the side. He has filed the case
under Section 107 of Criminal Procedure Code against
both the parties. From 19.08.1998 to 02.09.1998,
there was prohibitory orders under Section 37 [1] [3] of
B.P. Act.
29. igDuring his cross-examination, he stated
that, he was in Police Station, Chakur for two years
and 9 months. He went for investigation in village
Yellamwadi. Ranba was residing in the field with cattle
and implements etc. There was one well and sugar cane
crop in his field. He received message at about 10.45
a.m. that, Ranba was assaulted by Baburao, Trimbak
and other accused. He denied that, he brought two
injured persons for further treatment in the hospital at
Latur. He denied the suggestion that, the complaint
was not sent immediately to the Judicial Magistrate,
First Class Court. When this witness was confronted
with portion mark `B' from the statement of PW-1 -
Muktabai, he stated that, she did state the said portion
459.99 & 79.2000 Criappeal
and accordingly, the same was recorded.
30. The prosecution examined Gunwant
Govindrao Jankar as PW-8, but he was declared hostile
and therefore, his evidence is of no use to the
prosecution.
31.
The prosecution examined Devidas
Sambappa Patale as PW-9. This witness was declared
hostile, therefore, his evidence is of no use to the
prosecution case.
32. The prosecution examined Prabhakar
Gopinath Latange as PW-10. In his examination-in-
chief, he stated that, on 20th August, 1998 he was
Circle Inspector at Chakur. On 21.08.1998, he
received the investigation papers from Kolekar as per
order of Deputy Superintendent of Police in writing.
The complaint of Muktabai [Exhibit-52], spot
panchanama, inquest panchanama [Exhibit-53], the
459.99 & 79.2000 Criappeal
blood stains clothes of the deceased with panchanama
and 13 statements of the witnesses and case diary was
received by him. Thereafter, he learnt that, the house
of Ranba was damaged. Similarly, he learnt that, there
was damage of electric motor and pipe in Shankar
Gawali's land. He took 2 panchas namely Dattu
Kashinath Khandade and Shivaji Laxman Shelar and
went in the field of Ranba. He saw his house. The
house of Ranba was shown by one Venkat Gawali, who
is brother-in-law of the deceased. He saw the said
house and drew panchanama in presence of the
panchas. The said house was damaged worth Rs.200/-.
Accordingly, the panchanama was drawn. He identified
the said panchanama and he stated that, the same is
true.
33. He further stated that, he went in the field of
Shankar Gawali along with the said panchas. Venkat
Gawali had shown the spot to them and he drew
panchanama. He noticed that, the PVC pipe was
459.99 & 79.2000 Criappeal
broken worth Rs.800/-. He identified the said
panchanama at Exhibit-80. He further stated that,
then, he recoded the statement of some of the
witnesses. Then he arrested 10 accused on the very
same day. He drew the arrest panchanama. Yeshwant
Annarao Kasale and Shaikh Hamid Shaikh Maheboob
are the panch witnesses, they signed on the
panchanama. He identified the said panchanama at
Exhibit-81. He further stated that, on 22.08.1998, he
received the postmortem notes and he enclosed the
same in the file. On 23.08.1998, he recorded the
supplementary statement of Shankar Gawali. On the
very same day, he seized the blood stained cloth under
panchanama, which is signed by the panchas and
attested by him. He identified the said document
Exhibit-64. On the very day, he recorded the
supplementary statement of Muktabai. Similarly, he
seized the blood stained clothes and attached under
panchanama at Exh.63. It is attested by him and
signed by the panchas. He recorded the statements of
459.99 & 79.2000 Criappeal
three witnesses.
34. He further stated that, on 24.08.1998, he
seized the blood stained clothes of 8 accused by
drawing separate panchanamas. The said
panchanamas at Exhibit 82 to 89 are signed by the
panchas and those are attested by him. He further
stated that, on 25.08.1998, he interrogated the accused
in presence of the panch witnesses namely Sham
Sitaram Dhondge and Devidas Sambhappa Patale.
Accused Yeshant Limbaji, Dadge disclosed that he will
produce the stick from the field. Accordingly, the
memorandum panchanama was drawn. He identified
the said panchanama at Exhibit-90. He further stated
that, on the very same day, the accused Babu was
interrogated by them and agreed to produce the axe
from the field of Trimbak Shivange. Accordingly, the
memorandum panchanama was drawn. He further
stated that, the accused Suresh @ Suryakant Dadge
was interrogated and on interrogation, he agreed to
produce the iron bar from the field of Trimbakrao
459.99 & 79.2000 Criappeal
Shivange. Accordingly, the memorandum panchanama
was drawn.
35. He further stated that, then, the accused
Babruwan Yeshwant Dadge was interrogated by them
and he agreed to produce the sword from the field of
Trimbak Shivange. The memorandum panchanama
was drawn accordingly. He further stated that, then the
accused Padmakar Bapu Dadge was interrogated and
on interrogation, he agreed to produce Katti from the
field of Trimbakrao Shivange. Accordingly, the
memorandum panchanama was drawn. He further
stated that, then, he himself, panchas and 5 accused
persons went at Yellamwadi in police vehicle in the field
of Trimbak Shivange. Then accused Yeshwant Limbaji
Dadge produced the stick, iron from the heap of
fodder. The said stick was attached under the
panchanama. The label of signatures of panchas were
pasted on the stick.
36. He further stated that, the accused Babu
459.99 & 79.2000 Criappeal
Limbaji Dadge produced the axe from the fodder.
Accordingly, the panchanama was drawn. He also
identified the axe article no. 30 which had blood stains.
The labels of signatures of panchans were pasted on it.
He further stated that, the accused Suresh Dadge
produced the iron bar under the heap of fodder.
Accordingly, the panchanama was drawn and same
was signed by panchas and attested by him. He
identified the iron bar article no. 31, which had blood
stains. The labels of signatures of panchas were pasted
on it. He further stated that, accused Babruwan Dadge
produced the sword, which was hidden by him under
the fodder heap. The sword was rusted. He also
identified the sword article no. 32. It is pasted by slip of
signatures of panchas. He further stated that, accused
Padmakar has produced the Katti from the heap of
fodder. It had blood stained. Accordingly, the
panchanama was drawn.
37. He further stated that, on 26.08.1998, he
called panchas namely Sham Sitaram and Devidas
459.99 & 79.2000 Criappeal
Sambhappa Patale. Accused Narsing Bapurao Dadge
was interrogated by them and on interrogation, he
agreed to produce Katti from his house at Yellamwadi.
Then, the memorandum panchanama was drawn at
Exhibit-95. He further stated that, the accused
Bapurao Amruta Dadge was interrogated by him and
on interrogation, he agreed to produce iron bar and
Jambiya which was kept in his house. The
memorandum panchanama was drawn. He further
stated that, accused Sanjay interrogated by them and
on interrogation, he agreed to produce the axe, which
was hidden by him in his field. Accordingly, the
panchanama at Exhibit - 97 was drawn. He further
stated that, accused Dilip Shivange was interrogated by
them and on interrogation he agreed to produce the axe
from his cattle-shed. Accordingly, the panchanama
was drawn at Exhibit 98. He further stated that, then,
accused Sudhakar Atnure was interrogated by them
and on interrogation, he agreed to produce the iron bar
from the field of Trimbak Shivange. Accordingly, the
459.99 & 79.2000 Criappeal
panchanama was drawn at Exhibit-99. He further
stated that, they themselves, panchas and accused
went to Yellamwadi in a Jeep and the accused Narsing
stopped the jeep in front of his house. They got down.
Then, accused Narsing went in the house and he
produced the Katti. It was seized and attached under
the panchanama at Exh.95/A. The Katti is marked by
signature of the panchas and then took in their
custody.
38. He further stated that, accused Bapurao
had produced the iron bar and Jambiya from his house
and it was produced before them. Accordingly, the
panchanama was drawn at Exh.96/A. He identified the
iron bar article no. 39. He also identified the Jambiya
article no. 35. He further stated that, accused Sanjay
took them in his field. He produced the axe from his
cattle-shed. It had blood stained. It is seized and
attached under the panchanama at Exh.97/A. He
identified the axe article no. 36, which was signed by
the panchas on paper label. He further stated that,
459.99 & 79.2000 Criappeal
accused Dilip took them in his field and he produced
the axe from the cattle-shed. It had blood stained.
Accordingly, the panchanama was drawn at Exh.98/A.
He further stated that, accused Sudhakar took them in
the field of Trimbakrao Shivange and he produced the
iron bar from the heap of fodder, which was lying under
the mango tree. It was seized and attached under the
panchanama. The panchas have signed on it and it is
attested by him. He further stated that, he recorded
the statements of some witnesses. Then, they came to
the Police Station with muddemal and gave to writer
Police Head Constable. He also gave the muddemal
property, which was attached on 25.08.1998 under the
panchanama.
39. He further stated that, on 29.08.1998, he
recorded the supplementary statement of Muktabai and
other six witnesses. On 02.09.1998, again he recorded
the statements of 10 witnesses. He seized the blood of
Shankar Gawali, who was injured, from Doctor. On
03.09.1998, again he recorded supplementary
459.99 & 79.2000 Criappeal
statement of Shankar Gawali. Then he came to Latur
and collected the blood sample of Muktabai. On
04.09.1998, he sent muddemal property to C.A. for
analysis by letter at Exh.100 through the Police
Constable Jadhav. He identified the said letter, which
bears his signature. The C.A. received the property on
07.09.1998 and accordingly he put endorsement. He
further stated that, on 13.11.1998, he recorded the
statement of Mahadeo Shankar Gawali as per his say.
On 17.11.1998, he drew the spot map through
Tahsildar Chakur. He sent letter to Tahsildar Chakur
to draw the map of the spot and same was put in the
file. On 18.11.1998, he submitted the charge sheet in
the court. Then on 15.12.1998, he arrested the 4
absconding accused. On 18.12.1998, he arrested
accused Balaji Trimbak Shivange. On 19.12.1998, he
submitted the supplementary charge sheet against the
five accused. He received two C.A. reports, which he
identified at Exh.102 and 103.
459.99 & 79.2000 Criappeal
40. During cross-examination of PW-10, the
defence has brought on record that, when the accused
were arrested, the blood spot on their clothes, on their
person were not mentioned in the panchanama of
arrest. PW-10 stated in cross-examination that, portion
marked by letters `A', `B', `C' and `D' from the
statement of PW-1 Muktabai was stated by her.
Similarly, the portion marks by letters `A', `B', `C' and
`D' from the statement of Shankar Eknath Gawali was
also stated by him.
41. The prosecution examined Dr. Bhaskarrao
Shankarrao Banate as PW-11. In his examination-in-
chief, he stated that, he passed MBBS in the Year 1979
from Marathawada University, Aurangabad. He was in
Government Service since 17.08.1981. He was serving
at PHS Nalegaon since 20.08.1998. The PSI Chakur
Police Station referred the dead body of Ranaba s/o.
Dattu Dadge of Yellamwadi for conducting the
postmortem along with the Police Constable No.316
459.99 & 79.2000 Criappeal
Shri R.B.Pandhare, Police Station Chakur. He has
brought the letter dated 20.08.1998. He has made an
endorsement on it. He identified the letter at Exh.113.
On the very same day, he has performed the
postmortem examination from 5.00 p.m. to 6.20 p.m.
and noticed the following injuries:
1.
C.L.W. over left scapular region of size 1 ½ x
½" x ½", irregular and oblique.
2. Incised wound over inter scapular region right
side of size 1 ½" x ½" x 1 ½", sharp and
oblique.
3. Contusion over left scapular region below the
injury of size 1 ½" x 1 ½" linear and oblique.
4. Contusion over left shoulder joint of size 1" x
½" irregular and oblique.
5. Contusion over left groin of size ½" x ½",
irregular and oblique.
6. Contusion over left thigh of size ½" x ½",
irregular and oblique.
7. Contusion over the left thigh just above the
459.99 & 79.2000 Criappeal
knee joint of size 1" x ½", irregular and
oblique.
8. C.L.W. behind and above the left mallecous of
size 1" x ½" x ½", irregular and oblique.
9. Fracture of left tibia fibula just 3" above the
ankle joint.
10. C.L.W. over left arm midway and outside of
size 1" x ½" x ½" transverse and irregular.
11. Fracture of left humer us [midway].
12. C.L.W. over right arm outside of size ½" x ½"
x ½", oblique and irregular.
13. C.L.W. over right leg of the lower 1/3 rd of
upper 2/3rd junction of size 1 ½" x ½" x ½",
irregular and transverse.
14. Fracture of right tibia fibula at the junction of
lower 1/3rd of upper 2/3rd.
He opined that, all the injuries were caused
within 0 to 8 hours. The injuries were caused by hard
and blunt, sharp and hard weapons. All the injuries
are ante-mortem, they are shown in column no. 17 of
459.99 & 79.2000 Criappeal
the post mortem report. Injuries no. 1, 2, 9, 11 and 14
are grievous in nature and other injuries are simple in
nature.
42. Accordingly, he issued the postmortem
report in his own handwriting and signatures. He
identified the postmortem report at Exh.114. He
opined the cause of death is haemorrhagic shock due to
incised wound over medial part of right scapular with
multiple fracture injuries with multiple C.L.Ws. He has
issued immediately the provisional death certificate,
which is at Exh.115. He identified the same. He
further stated that, injury no.1 could be caused by
back side of the axe. Injury no.2 could be caused by
axe, sword, Jambiya. The injury no.3 could be caused
by stick. All other injuries are possible by stick and
head of the axe. The death was caused immediately.
43. On the very same day, the injured Smt.
Muktabai w/o. Shankar Gawali was referred to him for
her examination. He noted down the following injuries.
459.99 & 79.2000 Criappeal
1. Contusion near the left wrist joint, irregular
and transverse of size 2" x 1".
2. Fracture radio ulna, both bone lower end near
to the left wrist joint.
3. C.L.W. over left temporal region, irregular and
oblique, of size 4" x ½" x up to the scalp.
4.
Contusion over left shoulder joint, irregular
and oblique of size 2" x 1".
5. C.L.W. over right forearm dorsom, irregular
and oblique of size ½" x ½" x ½".
The age of all injuries was 0 to 8 hours. The
injuries no. 2 and 3 are grievous and rest of the injuries
are simple. The injuries no. 2 and 3 could be caused
by head of the axe and other injuries are caused by
blunt and hard weapon. Accordingly, he issued the
certificate in his own handwriting and signature. He
identified the certificate at Exh.116. He also identified
the injured before the Court.
44. He examined Shankar Eknath Gawali on the
459.99 & 79.2000 Criappeal
very same day and found following injuries.
1. C.L.W. over occipital region, irregular and
oblique, of size 3" x ½" and upto the scalp.
2. Contusion over right arm dorsom, irregular
and transverse of size 2" x ½".
Injury no. 1 is grievous injury, caused by
back side of the axe and injury no.2 is simple injury,
caused by stick. Age of injuries was within 0 to 8
hours. Accordingly, he issued the certificate at
Exh.117 in his own handwriting and signature and
same was identified by him. The injured before the
court is the same.
During cross-examination of PW-11, the
defence has brought on record his admission that,
except injury no.2 rest of the injuries can be caused by
hard and blunt object and barring fracture injuries are
simple in nature and except injury no.2, the other
injuries are on non-vital part of the body. It is also
459.99 & 79.2000 Criappeal
brought on record that, all the injuries mentioned in
the certificate Exhibit-116 may be caused by stone
pelting. However, the fact remains that, PW-11 in his
evidence has referred to as many as 14 injuries and
opined that, all the injuries are ante-mortem. Injury
nos. 1, 2, 9, 11 and 14 are grievous in nature. He has
also expressed his opinion that, cause of death is
haemorrhagic shock due to incised wound over medial
part of right scapular with multiple fracture injuries
with multiple C.L.Ws.
45. The prosecution examined Madhav
Prabhakarrao Dhere as PW-12. In his examination-in-
chief, he stated that, on 20.08.1998 he was attached to
Gandhi Chowk Police Station, Latur. On that day, he
received the phone of his superior officer to go to the
Hospital at Latur and record the statement of Shankar
Eknath Gawali. Accordingly, he went to the Hospital
and recorded his statement as per his say. Before that,
he obtained the endorsement of Medical Officer,
459.99 & 79.2000 Criappeal
recorded the statement and obtained the thumb
impression of Shankar Eknath Gawali. Then he sent
the statement to Police Station Chakur. He also
recorded the statement of Muktabai Shankar Gawali,
as per her say.
During his cross examination, he stated
that, the portion mark by letters "C" and "D" in the
statement of Muktabai recorded by him in the hospital
at Latur on 20th August, 1998 is correct and she has
stated the same. He also stated that, portion mark by
letters "A" and "B" from the statement of PW-4 Shankar
Gawali is as per his version.
46. We have referred and discussed evidence of
all the witnesses. The prosecution has proved inquest
panchanama and also the spot panchanama. PW-3,
panch witness, has stated about injuries noticed by
him on the person of deceased Ranba. The panch
witnesses were examined. The evidence of panch
witnesses and the Investigating Officer has convincingly
459.99 & 79.2000 Criappeal
proved inquest as well as spot panchanama. There is
detailed discussion by the trial Court in para 34 about
the inquest panchanama at Exhibit-55 and spot
panchanama in para 35. The Investigating officer did
seize blood mixed earth, jerman can, shoes and clothes
having blood stains from the spot. Investigating Officer
also seized cap having blood stains, two plastic boot,
one Jerman can having smell of milk, small stones
having blood stains, plane earth, blood mixed earth.
C.A. report also supports the prosecution case. Some of
the articles having blood stains sent to chemical
analyzers, wherein it is found that, the said articles are
having blood group of PW-1 and PW-4.
47. Upon reading of evidence of PW-1 and PW-4
in its entirety and considering even contradictions/
improvements and omissions appearing in their
evidence, their evidence is completely reliable. PW-4
has stated in detailed, the manner in which incident
has taken place, and which gets corroboration from the
459.99 & 79.2000 Criappeal
evidence of PW-1. It is true that, so far actual assault
on Ranba is concerned, PW-1 might not have seen the
said assault, however, looking to the distance between
the house of PW-1 and spot of incident, her evidence
can safely be believed that, immediately she went to the
spot. She has named the accused, who were present
armed with the weapons. Since the prosecution case is
that, the accused persons formed unlawful assembly
with an unlawful object to cause grievous hurt to
Ranba and ultimately killed him, therefore, irrespective
of which accused was actually involved in the assault
on Ranba or to the prosecution witnesses is not
material. Upon careful perusal of the evidence brought
on record by the prosecution, it is abundantly clear
that, the accused persons by forming unlawful
assembly with an object to cause grievous hurt to
Ranba and ultimately kill him gathered on a public
place in the village and killed Ranba and assaulted PW-
1 and PW-4, who are injured witnesses, who were
treated as indoor patients in the hospital for
459.99 & 79.2000 Criappeal
considerable period. Evidence of PW-1 and PW-4 has to
be believed for the simple reason that, since Ranba was
their son-in-law, they will not unnecessarily rope in the
other persons leaving aside the real culprits. The
evidence, which is brought on record and, more
particularly, the evidence of PW-1, PW-4 and PW-10
unequivocally indicate that, unlawful assembly was
formed, and members of said assembly killed Ranba as
stated by PW-4. It has come on record that, Ranba's
house was destroyed, even pipelines laid for watering
the land were also destroyed by accused persons.
Therefore, by any stretch of imagination, it cannot be
said that, the members of unlawful assembly had no
knowledge for what purpose they have assembled, and
why they were carrying the weapons in their hands.
The prosecution has proved beyond reasonable doubt
that, the members of the unlawful assembly had
knowledge about the fact that, they have assembled
with unlawful object of causing grievous hurt to Ranba
and ultimately killed him. It clearly emerged on record
459.99 & 79.2000 Criappeal
through the evidence of PW-1 and PW-4 that, members
of unlawful assembly in furtherance of their common
object to kill Ranba, assembled together with weapons
and killed Ranba and in the process also assaulted
PW.1 and PW-4. The medical evidence on record clearly
indicates that, death was homicidal and injury nos. 1,
2, 9, 11 and 14 were grievous in nature, which were
sufficient to cause death. Medical evidence also shows,
how brutally Ranba was assaulted. The version of PW-1
and PW-4 gets complete corroboration from the medical
evidence. It is necessary to note that, it was not
necessary for the prosecution to prove overt act by each
accused, since each member of the unlawful assembly
was equally responsible for killing of Ranba irrespective
of specific overt act attributed to them. Therefore, even
if the PW-1 has not actually seen assault on Ranba, she
saw accused persons holding weapons in their hands,
Ranba lying on spot when she went to the spot of the
incident, which is 50 to 60 paces from her house,
Accused said her "Do you come there to lift the dead-
459.99 & 79.2000 Criappeal
body of Ranba and hurry up, lift his dead-body". (vkrk
dk; jkuckp e<a mpyk; vkyh dk \ mpy R;kp e<a) and also she was
assaulted by accused. Therefore, the case in hand is
case of unlawful assembly, her evidence lends support
and gives corroboration to the version of PW-4 in his
evidence before the Court, and evidence of both these
witnesses gets corroboration from the medical evidence.
48. The main criticism by the defence qua the
evidence of PW-1 and PW-4 is that they are partisan or
interested witnesses inasmuch as, deceased was their
son-in-law. In this respect, at this juncture, it would be
apt to make reference to the judgment of the Supreme
Court in the case of Masalti vs. State of Uttar
Pradesh1. The Supreme Court in the case of Masalti
(supra) has made it clear that it is, no doubt, the
quality of the evidence that matters and not the
number of witnesses who give evidence. The Supreme
Court in para 14 of the judgment in case of Masalti
1 AIR 1965 SC 202;
459.99 & 79.2000 Criappeal
(supra) observed, thus:
"14. Mr. Sawhney has then argued that where
witnesses giving evidence in a murder trial like the
present are shown to belong to the faction of victims,
their evidence should not be accepted, because they
are prone to involve falsely members of the rival
faction out of enmity and partisan feeling. There is no
doubt that when a criminal Court has to appreciate
evidence given by witnesses who are partisan or
interested, it has to be very careful in weighing such
evidence. 51 S.C.-IO 146 Whether or not there are
discrepancies in the evidence; whether or not the
evidence strikes the Court as genuine; whether or not
the story disclosed by the evidence is probable, are all
matters which must be taken into account. But it
would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded only
on the ground that it is evidence of partisan or
interested witnesses. Often enough, where factions
prevail in villages and murders are committed as a
result of enmity between such factions, criminal
Courts have to deal with evidence of a partisan type.
The mechanical rejection of such evidence on the sole
ground that it is partisan would invariably lead to
failure of justice. No hard and fast rule can be laid
down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with
such evidence; but the plea that such evidence should
be rejected because it is partisan cannot be accepted
as correct."
49. In the light of the observations of the Supreme
Court in paragraph 14 quoted above, we have discussed the
evidence of PW-1 and PW-4 who are injured witnesses.
Therefore, in our opinion, merely because the injured
witnesses are relatives of the deceased, is no ground to
459.99 & 79.2000 Criappeal
disbelieve their evidence. The prosecution has placed on
record satisfactory evidence showing the involvement of
accused persons in commission of offence. There is
overwhelming medical evidence which would unequivocally
suggest that, the deceased Ranba was brutally murdered by
the accused persons by using deadly weapons like sword,
axe and also stick and iron rod.
50. Further argument advanced by the defence is
that, the prosecution has not placed on record satisfactory
evidence to prove that the accused persons did form an
unlawful assembly either prior to commission of offence or
at the time of commission of offence. It is common
contention of the learned Counsel appearing for the accused
that the ingredients of sections 141, 142 and 149 of the IPC
are not attracted in the light of evidence brought on record
and, therefore, it cannot be held that the accused persons
formed an unlawful assembly in furtherance of their
common object to assault / cause grievous hurt in order to
kill Ranba.
51. In this respect, in order to hold that the
459.99 & 79.2000 Criappeal
assembly was unlawful, it is necessary to meet the
ingredients of sections 141 and 142 of IPC. In the present
case, the prosecution has established beyond doubt that
there was assembly of more than five persons and the case
in hand would be covered by the provisions of section 141 of
IPC. Section 141 of IPC reads, thus:
" 141. Unlawful assembly.--An assembly of five or
more persons is designated an "unlawful assembly", if
the common object of the persons composing that
assembly is-
First.-To overawe by criminal force, or show of
criminal force, or the Central or any State
Government or Parliament or the Legislature of any
State, or any public servant in the exercise of the
lawful power of such public servant; or
Second.-To resist the execution of any law, or of any
legal process; or
Third.-To commit any mischief or criminal trespass, or
other offence; or
Fourth.-By means of criminal force, or show of
criminal force, to any person to take or obtain
possession of any property, or to deprive any person of
the enjoyment of a right of way, or of the use of water
or other incorporeal right of which he is in possession
or enjoyment, or to enforce any right or supposed
right; or
Fifth.-By means of criminal force, or show of criminal
force, to compel any person to do what he is not
legally bound to do, or to omit to do what he is legally
entitled to do. Explanation.-An assembly which was
not unlawful when it assembled, may subsequently
become an unlawful assembly."
459.99 & 79.2000 Criappeal
Upon careful perusal of the provisions of section 141
of IPC, the present case is covered under "Clause Third" and
to some extent "Fourth".
52. Section 142 of IPC reads, thus:
" 142. Being member of unlawful assembly.--Whoever,
being aware of facts which render any assembly an
unlawful assembly, intentionally joins that assembly,
or continues in it, is said to be a member of an
unlawful assembly."
As already observed, members of the unlawful
assembly were aware as to for what purpose they have
assembled. Therefore, in the present case, the prosecution
has proved that in furtherance of the common object, the
accused persons formed an unlawful assembly and they
killed Ranba and injured PW-1 and PW-4.
53. At this juncture, it would be relevant to refer the
provisions of section 149 of IPC which read. Thus:
"149. Every member of unlawful assembly guilty
of offence committed in prosecution of common
object.--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
459.99 & 79.2000 Criappeal
same assembly, is guilty of that offence."
54. At this juncture it would be apt once again to
make reference to the exposition of the Supreme Court in
case of Masalti (supra) wherein the Supreme Court while
explaining scope of sections 141 to 149 of IPC and also
section 302 r/w 149 of IPC, in paragraphs 16, 17 and 20
held, thus:
"16. Mr. Sawhney also urged that the test applied by
the High Court in convicting the appellants is
mechanical. He argues that under the Indian
Evidence Act, trustworthy evidence given by a single
witness would be enough to convict an accused
person, whereas evidence given by half a dozen
witnesses which is not trustworthy would not be
enough to sustain the conviction. That, no doubt is
true; but where a criminal court has to deal with
evidence pertaining to the commission of an offence
involving a large number of offenders and a large
number of victims, it is usual to adopt the test that
the conviction could be sustained only if it is
supported by two or three or more witnesses who give
a consistent account of the incident. In a sense, the
test may be described as mechanical; but it is difficult
to see how it can be treated as irrational or
unreasonable. Therefore, we do not think that any
grievance can be made by the appellants against the
adoption of this test. If at all the prosecution may be
entitled to say that the seven accused persons were
acquitted because their cases did not satisfy the
mechanical test of four witnesses, and if the said test
had not been applied, they might as well have been
convicted. It is, no doubt, the quality of the evidence
that matters and not the number of witnesses who
give such evidence. But, sometimes it is useful to
adopt a test like the one which the High Court has
459.99 & 79.2000 Criappeal
adopted in dealing with the present case.
17. Mr. Sawhney then attempted to argue that the
High Court failed to give effect to the principles
enunciated by this Court in the case of Baladin v.
State of Uttar Pradesh (S) AIR 1956 SC 181. In that
case, it was observed by Sinha, J., who spoke for the
Court, that it is well-settled that 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, I.P.C. The argument is (1) A.I.R. 1956 S.C. 181
148 that evidence adduced by the prosecution in the
present case does not assign any specific part to most
of the accused persons in relation to any overt act,
and so, the High Court was in error in holding that
the appellants were members of an unlawful
assembly. The observation of which Mr. Sawhney
relies, prima facie, does seem to support his
contention; but, with respect, we ought to add that
the said observation cannot be read as laying down a
general proposition of law that unless an 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. In
appreciating the effect of the relevant observation on
which Mr. Sawhney has built his argument, we must
bear in mind the facts which were found in that case.
It appears that in the case of Baladin (S) AIR 1956 SC
181, the members of the family of the appellants and
other residents of the village had assembled together;
some of them shared the common object of the
unlawful assembly, while others were merely passive
witnesses. Dealing with such an assembly, this Court
observed that the presence of a person in an assembly
of that kind would not necessarily show that he was a
member of 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
459.99 & 79.2000 Criappeal
assembly the common object as defined by s.141,
I.P.C. Section 142 provides that whoever, being aware
of facts which render any assembly an unlawful
assembly, intentionally joins that assembly, or
continues in it, is said to be a member of an unlawful
assembly. In other words, 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 (1) A.I.R. 1956 S.C.
181 I49 joined the assembly as a matter of idle
curiosity without intending to entertain the common
object of the assembly. It is in that context that the
observations made by this Court in the case of
Baladin (S) AIR 1956 SC 181 assume significance;
otherwise, in law, it would not be correct to say that
before a person is held to be a member of an unlawful
assembly, it must be shown that he had committed
some illegal overt act or had been guilty of some illegal
omission in pursuance of 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. Therefore, we are
satisfied that the observations made in the case of
Baladin(l) must be read in the context of the special
facts of that case and cannot be treated as laying
down an unqualified proposition of law such as Mr.
459.99 & 79.2000 Criappeal
Sawhney suggests."
55. While considering various provisions of IPC and
in particular, sections 148, 149 and 302 IPC, the Supreme
Court, in case of Ranjit Singh (supra), in paragraph 22
held, thus:
"22. Thus, from the above, the law on the issue
remains that in a case involving an unlawful assembly
with a very large number of persons, there is no rule
of law that states that there cannot be any conviction
on the testimony of a sole eye-witness, unless that the
court is of the view that the testimony of such sole
eye-witness is not reliable. Though, generally it is a
rule of prudence followed by the courts that a
conviction may not be sustained if it is not supported
by two or more witnesses who give a consistent
account of the incident in a fit case the court may
believe a reliable sole eye-witness if in his testimony
he makes specific reference to the identity of the
individual and his specific overt acts in the incident.
The rule of requirement of more than one witness
applies only in a case where a witness deposes in a
general and vague manner, or in the case of a riot."
56. Recently, the Supreme Court in case of State of
U.P. vs. Chandrika2, in the facts of that case held that,
there was prompt lodging of F.I.R. common object of
unlawful assembly armed with Gun was to commit murder.
Testimonies of injured witnesses present at spot could not
be doubted being corroborated with eye witnesses as well as
2 2014(2) ACR 1756;
459.99 & 79.2000 Criappeal
medical evidence. Finding of acquittal recorded by trial
Court ignoring materials on record oral as well as
documentary evidence fully supported by medical evidence.
Acquittal of accused found to be based basically on dying
declaration whose maker was alive. Said statement was not
admissible in evidence. On appraisal of evidence on record it
was amply clear that prosecution had fully proved its case
beyond doubts. Judgment and order of acquittal reversed
and all the accused were convicted by allowing government
appeal.
In case of Phodol vs. State of C.G.3, Chhattisgarh
High Court, in the facts of that case, held that injuries
found over bodies of deceased were incised wounds,
lacerated wounds and depressed fracture of head.
Appellants were holding battleaxe and other weapons and
they had caused homicidal death of three persons and also
caused fatal injuries to prosecution witness by battleaxe
and other weapons. Evidence adduced on behalf of
prosecution and defence taken by appellants were sufficient
to establish fact that appellants had formed unlawful
assembly having its common object to commit murder of
3 2014 CRI.L.J.4704;
459.99 & 79.2000 Criappeal
deceased and in furtherance of common object of assembly,
they were armed with deadly weapons. Therefore,
Chhattisgarh High Court maintained order of conviction of
the accused therein.
In case of Manilal vs. State of Kerala,4 the Kerala
High Court while explaining scope of section 149 of IPC,
held that even if the identity of some of the accused forming
part of the unlawful assembly is not established or even if
one or more of the accused are acquitted granting benefit of
doubt, that does not absolve the other accused from being
proceeded against under Section 149 of the Indian Penal
Code.
The facts in the case in hand and those in case of Om
Prakash vs. State of Haryana,5 are almost similar. In the
said case, the Supreme Court, while considering the
provisions of Section 141, 142, 148 and 149 and also
sections 302 and 319 of IPC, held that there was no delay in
lodging FIR. Ocular testimony gets corroborated from
medical evidence. All accused persons came together armed
with lathis and gun. Eye witnesses who are natural
4 ILR2014(2)Kerala871; 2014(2)KLT800;
5 (2014) 5 SCC 753;
459.99 & 79.2000 Criappeal
witnesses, being brothers, have deposed in unequivocal
manner about assault by all accused persons. Common
object is clearly evident. In such situation, attribution of
specific individual overt act has no role to play. All requisite
tests to attract section 149 established by prosecution and
the contentions raised by appellants therein were rejected
and the Supreme Court upheld the order of conviction
passed by the High Court. If the evidence in the present
case is considered in the light of the judgment of the
Supreme Court in case of Kuldeep Yadav and Ors. vs. State
of Bihar,6 that there is cogent, trustworthy, clinching and
reliable evidence of the eye witnesses.
57. We have discussed the evidence of the
prosecution witnesses in detail and the overt-acts attributed
to them qua each accused and also the medical evidence.
Upon re-appreciating the entire evidence, inevitable
conclusion is that above mentioned accused persons
named by witnesses and to whom overt act is attributed
formed an unlawful assembly, they were aggressors, they
had knowledge, they went to the spot and killed Ranba and
6 (2011) 5 SCC 324;
459.99 & 79.2000 Criappeal
injured PW-1 and PW-4. Therefore, evidence led by the
prosecution in the present case even satisfy the tests laid
down in the case of Kuldeep Yadav (supra). However, it
would be relevant to mention at this juncture that, it
appears that the judgment in case of Masalti (supra), which
is by the larger Bench consisting four Honourable Judges,
was not brought to the notice of the Hon'ble Supreme Court
in case of Kuldeep Yadav (supra).
58. Upon considering the evidence of PW-1 and
PW-4, in nutshell PW-1 in her evidence stated that,
accused persons were standing at the spot, armed with
weapons. When she went to the spot, she saw Ranba
lying in seriously injured condition. She specifically
attributed overt act to accused Babu Dadge, who
assaulted deceased Ranba by axe, accused Padmakar,
who assaulted by Katti, accused Kamlakar assaulted by
stick, accused Bapurao Dadge assaulted by iron bar,
accused Narsing bet by Katti, accused Yeshwant
assaulted by stick, accused Babruwan assaulted by
sword. accused Suresh assaulted by stick and accused
459.99 & 79.2000 Criappeal
Sudhakar assaulted by iron bar. She further deposed
that, Babu Dadge assaulted her by axe, accused
Padmakar and Bapurao Dadge assaulted her by iron
bar. She was seriously injured. She was in hospital for
20 days. PW-4 - Shankar Eknath Gawali in his
evidence stated that, accused Babu gave blow of axe on
the neck of Ranba, accused Bapurao bet by iron bar,
accused Dilip Shivange assaulted by axe, accused
Babru Dadge assaulted by sword. When he tried to
rescue Ranba, when accused Babu Dadge hit him by
axe on his head and accused Bapurao assaulted him by
iron bar and then they pushed him. PW-4 is injured
witness in the main incident of killing Ranba by
accused persons. Therefore, taking into consideration
the evidence of PW-1 and PW-4 together, the safe
conclusion can be reached that, the prosecution has
proved beyond reasonable doubt, the presence with
deadly weapons and overt acts, as alleged by two
witnesses namely PW-1 and PW-4, qua accused Babu
Limbaji Dadge, accused Bapurao Amrata Dadge,
459.99 & 79.2000 Criappeal
accused Deelip Trimbak Shivange, accused
Babruwahan Yeshwant Dadge and accused Padmakar
Baburao Dadge. We have accepted the evidence of PW-1
and PW-4 in respect of those accused against whom
both witnesses have stated about their presence and
overt acts. So as to make sure that, in case of unlawful
assembly, there should be minimum two witnesses,
stating presence of the accused, holding weapons and
attributing overt acts to the accused persons, as laid
down in the case of Masalti (supra).
59. The trial Court in para 64 observed that, the
names of accused no.1 Yeshwant, accused no.5 Sanjay,
accused no.6 Shankar, accused no.11 Trimbak,
accused no.12 Vilas, accused no.13 Shivaji, accused
no.14 Kamlakar and accused no.15 Balaji are included
without any reason. It appears that, the trial Court
after appreciation of evidence on record has granted
benefit of doubt to aforementioned accused.
60. Upon considering and reappreciating the
459.99 & 79.2000 Criappeal
evidence in its entirety, we are of the considered view
that, on assessing the entire evidence on record and
after observing demeanor of the witnesses, the trial
Court has taken a possible view in acquitting the
respondents in Criminal Appeal No. 79 of 2000.
Therefore, we do not wish to interfere in order of the
trial Court acquitting them.
In our considered view, if the case of
accused No.4 Suryakant S/o Yeshwant Dadge and
accused No.8 Narsing S/o Baburao Dadge is
considered, in the light of evidence of PW-1 and PW-4,
out of two witnesses i.e. PW-1 and PW-4, only one
witness has attributed the overt act and not the other
witness. Therefore, in our considered view, appellant -
Suryakant Yeshwant Dadge and Narsing S/o Baburao
Dadge are required to be given benefit of doubt like
accused who are acquitted by the trial Court.
We are aware of the legal position that, every
member of unlawful assembly guilty of offence
committed in prosecution of common object. If an
459.99 & 79.2000 Criappeal
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. However, in the present case, the
incident had taken place at about 9 a.m. in the village,
and having minutely considered evidence of PW-1 and
PW-4, the possibility of presence of other accused as
mere spectators, without knowledge and intention of
object of unlawful assembly, cannot be ruled out.
Therefore, applying the test laid down in the case of
Masalti (supra) and in the case of Kuldeep Yadav
(supra), we hold that, the aforementioned accused
Babu Limbaji Dadge, accused Bapurao Amrata Dadge,
accused Deelip Trimbak Shivange, accused
Babruwahan Yeshwant Dadge and accused Padmakar
Baburao Dadge are guilty for commission of offence, as
proved by the prosecution and convicted by the trial
459.99 & 79.2000 Criappeal
Court. Therefore, their appeal deserves to be dismissed.
61. In the result, we pass the following order:
I) Criminal Appeal No.79 of 2000 filed by
the State against order of acquittal of the
respondents therein, stands dismissed.
Their bail bonds stand cancelled;
II) Criminal Appeal No. 459 of 1999 filed
by the appellants / accused against their
conviction and sentence is partly allowed;
Criminal Appeal No.459/1999 as
regards accused No.4 Suryakant s/o
Yashwant Dadge and accused No.8 Narsing
s/o Baburao Dadge is allowed and they
stand acquitted of the charges levelled
against them; Their bail bonds stand
cancelled. Fine, if any, paid by them shall
be refunded to them.
Criminal Appeal No.459 of 1999 as
regards appellants / accused No.10 Babu
Limbaji Dadge, accused No.9 Bapurao
459.99 & 79.2000 Criappeal
Amrata Dadge, accused No.3 Deelip Trimbak
Shivange, accused No.7 Babruwahan
Yeshwant Dadge and accused No.1
Padmakar Baburao Dadge stands
dismissed. They shall surrender to their bail
bonds forthwith. They are given set off
under Section 428 of Cr.P.C., if already they
were in jail as under trial prisoners.
III) The trial Court to ensure that,
the aforementioned five accused shall
surrender themselves forthwith and send
the compliance report to the Registry to that
effect. The copy of this judgment be sent to
the Superintendent of Police, Latur by
fastest mode.
Sd/- Sd/-
( A.I.S. CHEEMA, J. ) ( S.S. SHINDE, J. )
...
sga/-
