Bombay High Court
Nashik S/O Ramhari Gawande (In ... vs State Of Maharashtra, Through ... on 15 December, 2016
Bench: B.P. Dharmadhikari
apeal44.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 44 OF 2015
AND
CRIMINAL APPEAL NO. 45 OF 2015
CRIMINAL APPEAL NO. 44 OF 2015
Nashik s/o Ramhari Gawande,
aged 38 years, occupation -
Nil, r/o presently Convict No.
C-4524, Amravati Central ig
Prison, Amravati/ Nandgawhan,
Tq. - Darwha, Dist. Yavatmal. ... APPELLANT
Versus
1. State of Maharashtra
through Police Station Officer,
P.S. Darwha, Tq. Darwha,
District - Yavatmal. ... RESPONDENT
Shri M.V. Bute, Advocate for the appellant.
Shri R.S. Nayak, APP for the respondent.
.....
CRIMINAL APPEAL NO. 45 OF 2015
1. Siddharth Shamrao Dhoke,
aged about 44 years,
2. Vijay Shamrao Dhoke,
aged about 42 years,
3. Ravindra Shamrao Dhoke,
aged about 30 years,
4. Amol @ Yash Siddharth Dhoke,
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apeal44.15 2
aged about 20 years,
All residents of Nandgawhan,
Tq. - Darwha, Dist. Yavatmal. ... APPELLANTS
Versus
1. State of Maharashtra
through Police Station Officer,
P.S. Darwha, Tq. Darwha,
District - Yavatmal. ... RESPONDENT
Shri A.S. Manohar, Advocate for the appellants.
Shri R.S. Nayak, APP for the respondent.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE OF RESERVE : NOVEMBER 22, 2016.
DATE OF PRONOUNCEMENT : DECEMBER 15, 2016.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
The original accused No. 4 - Nashik Ramhari
Gawande has filed Criminal Appeal No. 44 of 2015 while
Criminal Appeal No. 45 of 2014 is filed by four accused i.e.
Accused Nos. 1, 3, 5 & 7. They challenge the judgment dated
10.01.2014 delivered by the Additional Sessions Judge, Darwha,
in Session Trial No. 4 of 2008.
2. Accused No. 1 - Siddharth Shamrao Dhoke, accused
No. 3 - Ravindra Shamrao Dhoke, Accused No. 4 - Nashik
Ramhari Gawande, Accused No. 5 - Vijay Shamrao Dhoke and
Accused No. 7 - Amol @ Yash Siddharth Dhoke, are found guilty
of offences punishable under Sections 302, 147 and 324 read
with Section 34 of the Indian Penal Code and sentenced to
suffer various punishments including life imprisonment.
Accused No. 2 - Nandu Narayan Dhoke and Accused No. 6 -
Ashwadeep Narayan Dhoke, are acquitted of all offences.
Similarly, all accused are acquitted of offences punishable under
Sections 452, 307, 325 and 504 of the Indian Penal Code as also
Section 135 of the Bombay Police Act.
3. According to prosecution story, the incident has
taken place on 10.09.2007 between 6.00 and 6.30 PM. The
informant is one Ragho Domaji Muneshwar. He lodged report
that his cousin - Milind Gomaji Muneshwar went in front of the
house of Accused No. 4 - Nashik to cut and bring leaves and
branches of peepal tree required for traditional day of Pola i.e.
the day on which bullocks are worshiped. After taking
permission of Nashik, he climbed on the tree and cut leaves and
branches. Accused No. 4 - Nashik noticed that Milind cut leaves
and branches in excess and hence he pelted stones on Milind.
When he got down, Nashik slapped him. Quarrel began and
people gathered. Ragho also went there. He took both of them
to the Police Patil - Bhaurao Vishwanth Mane and pacified
them. The quarrel then ended. Police Patil advised Ragho to
apologize to Nashik.
4. In the evening, Pola festival was held and between
6.00 PM and 6.30 PM, Milind came to the house of Ragho for
dinner. Somebody informed Milind that he had a phone call
from his brother. Milind, therefore, went to attend phone call
towards Hanuman Temple. As Ragho heard commotion in loud
voice, he followed Milind with a view to intervene in quarrel.
Quarrel was between Milind and the accused persons. They
assaulted Milind by axe and sticks. Milind sustained injuries on
head and neck. Wife of Ragho viz. Ahilya and daughter Sukrita
(also mentioned as Shukrita or Suprita on record) came there.
Gomaji, father of Milind also came there. Accused Siddharth,
Vijay, Ravindra, Yash, Nashik, Nandu and Ashwadeep were
having sticks and axes. They started abusing Ahilyabai and
assaulting all of them. Ragho, Ahilyabai, Shukrita and Gomaji
sustained injuries. Milind was lying in a pool of blood near
Hanuman temple. Dhanpal Patil and Sachin Manwar came
there. They lifted Milind and took him to his house. Thereafter
Milind and Ragho were taken in bullock cart towards Darwha
for Medical assistance. Ahilya and Gomaji joined them. On
autorickshaw of Gajanan Ratne they came to Darwha Police
Station. Ragho lodged report and they were referred to hospital
for treatment.
5. As injuries suffered by Milind and informant were
found serious, they were referred to Government Hospital,
Yavatmal. Dhanpal Patil and Sachin Manwar took them to
Yavatmal where they were immediately referred to Hospital at
Nagpur. Milind died at Nagpur at 5.45 AM on 11.9.2007.
6. We have heard Shri Bute, learned counsel for the
Accused - Nashik in Criminal Appeal No. 44 of 2015 and Shri
A.S. Manohar, learned counsel for the four accused in Criminal
Appeal No. 45 of 2015 and Shri R.S. Nayak, learned APP counsel
for the respondent - State in both the appeals.
7. There are total four eye witnesses. They are PW-4 -
Ragho, PW-5 - Gomaji, PW-9 - Ahilyabai and PW-12 - Shukrita.
Apart from them, there is evidence of PW-13 - Dhanpal Patil,
who carried injured to the hospital. The parties state that the
evidence of Investigating Officers PW-19 - Sudhakar Sarode and
PW-20 - Madhukar Shirsath, is important in the matter. It
appears that eye witnesses are injured in the incident and
appear to be members of the same family.
8. Shri Manohar, learned counsel has taken us through
evidence of four injured witnesses to urge that it does not
inspire confidence as they are mutually inconsistent. The panch
witness i.e. PW-6 - Shrikant Mane, who has allegedly
witnessed spot panchnama, seizure from spot and discovery
under Section 27 of Evidence Act, has turned hostile. Similarly,
PW-7 - Deorao Jadhav, claimed to have witnessed discovery
under Section 27 and PW-8 - Nemichand Jadhav, also witness
to said discovery, have turned hostile. PW-11 - Vishnu Pawar,
who has witnessed spot seizure and discovery as also PW-15 -
Subhash Kale, who is claimed to be witness to discovery, are all
hostile. In this situation, only on the basis of interested related
witnesses, who claimed to be injured, finding of conviction
could not have been returned. He points out that PW-13
Dhanpal Patil is not a witness to the incident and he has merely
carried injured to the hospital. He further submits that the
incident of leaf cutting in the morning does not constitute any
offence and no charge in relation thereto has been framed.
According to him, if incident in the morning is kept in mind,
defence of the accused persons under their Section 313
examination becomes more probable and, therefore, needs to be
acted upon.
9. His arguments at length in this respect can be looked
into while appreciating evidence of these witnesses as also the
defence. His main contention is, the fact that the deceased
Milind was called by somebody when he was taking dinner at
the residence of PW-4 - Ragho is not established and the person
who came to call Milind is also not identified. Story whether he
had any phone call from any person is also not gone into. He
invites attention to the fact that there was charge under Section
452 read with Section 34 of Indian Penal Code against all the
persons for tees-passing into the house of Ragho and that charge
is not established. The eye witnesses change the whole story &
shift the spot of occurrence itself. The charge under section 452
formed integral part of the prosecution story and, therefore,
later charges also cannot be said to be established. The
prosecution story itself fails.
10. As against this, the learned APP states that all eye
witnesses have never claimed to be present at the same time and
they have reached at short interval of each other. After they
reached, they were attacked by accused persons. Hence, their
story is consistent and has been rightly acted upon by the trial
Court.
11. Inviting attention to the defence of the accused
persons, he submits that all accused persons were present at one
and same time at the spot of incident and if their defence is
accepted, the spot and injuries to the deceased Milind and
others is not in dispute. There only effort is to urge that said
injury was sustained by Milind when relatives of Milind tried to
assault accused persons and one of them avoided that blow. He
contends that this defence needed to be established by the
accused persons and they failed to do so. Only one contusion
and lacerated wound on body of accused Vijay is being relied
upon by them but they have not explained that injury. The
burden to explain that injury was always upon them and not
upon the prosecution.
12. As accused have admitted their presence at the spot
and injury is sustained by Milind at the spot, the fact whether
Milind had been to the residence of Ragho for taking dinner or
not becomes irrelevant. Whether Milind was informed there
that he has phone call and hence he left dinner incomplete and
came near Hanuman Temple is also irrelevant. As Pola was
already held, all villagers were at their residence and, therefore,
the story of witnesses that at that time, at Hanuman temple,
there was nobody, needs to be accepted.
13. The learned APP has also taken us through the
evidence of eye witnesses and medical evidence on record to
urge that injuries to prosecution witnesses are proved and their
evidence, therefore, needs to be accepted. The learned APP has
placed reliance upon some judgments and we find it
appropriate to postpone the consideration thereof.
14. The incidence in the morning shows that Milind had
gone to peepal tree to fetch leaves and branches for performing
Pola poojan. The fact that he climbed tree and cut branches and
leaves is not in dispute. The important witness in this respect is
PW-4 - Ragho. He accepts the fact of throwing of stone by
Nashik and beating of Milind by Nashik. He also accepts visit to
house of Police Patil by himself, Gomaji, Milind and Nashik
Gawande. At that place, Police Patil had asked them to give
apology to Nashik but they left the place. However, this
incidence does not form subject matter of trial and no charge is
framed about it.
15. Shukrita, daughter of Ragho is one of the eye
witnesses. We find that she has not pointed out any assault on
herself by any accused. After deposing about event which has
taken place in the morning, she states that uncle Milind came to
her house for dinner between 6.00 and 6.30 PM. One boy came
outside and informed Milind about the phone call. Milind left to
attend that call. As he did not come, her father Ragho went
after him. They heard shouting and, therefore, she herself, her
sister and mother went to Hanuman temple square. They all
saw accused Siddharth Dhoke, Yash Dhoke and Vijay Dhoke
holding axe. Nashik Gawande, Ravindra Dhoke, Ashwadeep
Dhoke and Nandu Dhoke were holding sticks. They were
assaulting her father and uncle Milind. Both of them received
bleeding injuries and fell down. Her mother tried to intervene
and Siddharth assaulted her mother with the handle of axe and
broke her head. Her mother ran due to fear and Siddharth
chased her towards nala. Milind was lying in pool of blood and
his mother Chandrabhaga was crying. Dhanpal Patil and Sachin
Manwar brought Milind to their house. Siddharth and Nashik
assaulted her grand father Gomaji with axe and sticks. Her
uncle Milind, father Ragho and Domaji were put in bullock cart
of Kisan Patil. Dhanpal Patil and Sachin Manwar had taken him
to Darwha. They followed them. Milind and her father were
serious and hence they were referred to Yavatmal and thereafter
to Nagpur. Her mother and grand father were at Hospital in
Yavatmal. She, her sister and Suraj Nagrale went with Milind
and Ragho in Ambulance. She identified three axes and five
sticks. She also stated that Vijay Dhoke was holding axe at
Article 'B', Siddharth was holding axe at Article 'A' and Yash was
holding axe at Article 'C'.
16. Her cross examination reveals that she is educated
up to 12th standard. She accepted that her statement was read
over to her by a clerk in the office of Public Prosecutor before
she entered witness box. She could not tell date of Pola festival
in the year 2008 and 2009. She stated that her statement was
recorded on 12.09.2007. The statement of her mother and
sister was also recorded on that day. Her father Ragho was
present in village on 12.09.2007 when their statement was
recorded at their house. She could not disclose the sequence in
which the statements were recorded. She was not remembering
whether after recording their statement, police read it over to
them. She deposed that she had informed Police that she was in
a position to identify the weapons and also pointed out which
accused was holding which axe. She could not explain why it
did not figure in her police statement. Nobody was present at
Hanuman temple chowk when they reached there. Police had
not shown to them weapons lying on the spot and she was
shown it in the Court on the day of her deposition. She could
not state whether she has seen any marks on the weapons but
she had seen marks of blood and, therefore, she stated that she
could identify the weapons. She admitted that there was no
blood marks on weapon at Articles 'A' to 'H'.
17. She accepted that they used to take dinner at about
8.00 PM. In the month of September to November, there is
darkness between 6.00 and 6.30 PM and complete darkness at
8.00 PM. No incidence of abusing or assaulting at her house
took place before Pola festival. She accepted that between 4.30
and 5.00 PM, somebody was abusing on road and hence she had
come out of her house to see. She could not tell who else had
come out of the house with her. She accepted that her father
Ragho went after Milind one or two minutes after Milind left the
house to attend phone call. One or two minutes thereafter, they
also left. She accepted that two three minutes thereafter
Chandrabhaga and Gomaji came to the spot. She denied that
Kundan had come to call Milind, Milind and father went with
axe and they followed with sticks. She denied that Kundan was
instructed to watch movements of the accused persons. She
denied that Kundan went to the house of Gomaji and called
them with sticks. She denied that Milind was not called for
dinner by them. She denied that they started assaulting the
accused persons with an axe and sticks and accused avoided
their blows and the axe blow delivered on the accused struck
Milind. She denied that blows meant for the accused persons
landed on her parents and Milind. She denied that nobody was
assaulting anybody when they reached the spot. She denied
that Vijay was lying on the spot in a pool of blood. She denied
that the accused were not having any weapons. Manner of her
cross examination reveals only its roving manner.
18. She accepted that there are houses near Hanuman
temple chowk and she did not count how many persons
gathered at the time of incident. She denied that she had seen
their faces. She could not explain why the fact that Nashik and
Siddharth assaulted Gomaji with axe and stick did not figure in
her police statement. She accepted that Dhanpal Patil and
Sachin Manwar took only Milind and did not take anybody else.
Five to 10 minutes thereafter they went to Darwha by auto.
19. She stated that there was no dispute between
Nandu, Ashwadeep and her family. The relations between two
families were cordial. She denied that in 2006 they had not
abused her and her sister. She accepted that on that count there
was incident of assault between them and their family members.
She accepted that before the incident at Hanuman temple
chowk, nobody came to their house to assault her mother. She
accepted that she never read her statement. She denied that she
has not seen the assault and weapons. Thus, this witness in
chief states that there was nobody at Hanuman temple chowk
when assault took place and in cross examination states that
there were several persons. She also states that Chandrabhaga
and Gomaji came after her. Hence, it will be appropriate to look
into the evidence of Gomaji at this stage.
20. PW-5 - Gomaji Maroti Muneshwar is father of the
deceased Milind. His evidence shows that after ceremony of
Pola, Milind went to the house of Ragho. After one hour he
heard shouting near Hanuman temple. He went there and saw
his son Milind, Ragho, Ahilya and Shukrita lying on the ground.
Siddharth then assaulted him by means of axe and Nashik
Gawande assaulted him by means of stick. Thus, he has not
witnessed attack on the deceased or other injured persons. In
cross examination, he has accepted that he cannot see properly
after a distance of 8 to 10 feet and there is dark between 5.30
and 6.00 PM in rainy season. He accepted that his mental
condition while giving statement to Police was not good and he
had asked Police to come later. Police came 7 - 8 days
thereafter at Hospital for inquiry and then recorded his
statement. This part of his statement is put to investigating
officer PW-19 Sudhakar Sarode and he has denied it. He
further stated that Pola ceremony was performed at about 6.00
PM and villagers were visiting after ceremony of Pola. He also
accepted that sticks were brought by bullock owners to control
the bullocks at pola. A mob of about 50 to 100 persons gathered
due to incident. He accepted that there is no telephone at his
house or in the house of any neighbour. He accepted that he
saw mob from his house but could not identify their face. He
further accepted that he had informed police about seeing
Ragho, Ahilya, Shukrita and Sarita lying on the ground but
could not explain why it did not figure in his police statement.
He further stated that when he went there, quarrel was going
on. He identified stick only because it was up to his shoulder.
But he had not seen any marks on Article 'A' and Article 'G'. He
further stated that police recorded his statement on 12.09.2007
at Nandgaon. Thus except for assault on him by Siddharth and
Nashik, this person does not prove anything else.
21. PW-9 - Ahilyabai Raghoji Muneshwar is mother of
Shukrita and wife of Ragho. Her deposition shows that after
Milind left for attending phone call, within two minutes her
husband Ragho followed Milind. After hearing shouts, she and
her daughters went to Hanuman chowk. She saw Milind
Muneshwar lying on the ground in a pool of blood. Her
husband was lying near Milind with injury on his head. Accused
persons were assaulting Milind and her husband with sticks and
axe. Siddharth assaulted on her head with handle of axe. She
identifies axe article 'A' with Siddharth. Axe with Vijay Dhoke
and Yash Dhoke at articles 'B' and 'C'. She further states that
sticks at Articles 'D' to 'H' were with other accused persons. She
identifies her blood stained clothes i.e. blouse and pyjama at
Articles 'J' and 'K'. Her cross examination shows that statement
of her husband Ragho was not recorded by the Police at
Yavatmal on the same day and he lodged report on 17.09.2007
at Police Station. Her statement was also not recorded by the
police in the Hospital at Yavatmal.
22. Her cross also shows that Milind was having mobile
but it was at his house. She could not explain why the fact that
Milind went towards temple in the evening from her house did
not figure in her police statement. She also could not explain
why the fact of accused assaulting her husband and Milind by
means of axe and sticks do not figure in her statement. In cross
she reiterates that Siddharth assaulted her on head when she
tried to intervene. A little later she states that Police recorded
her statement in her residence at about 3 to 4 PM and her
husband Ragho was then present. She denied that weapons at
Articles 'A' to 'H' belonged to her or Ragho i.e. their side. She
admits that no report was lodged against persons who came to
her house. Thus, this witness also goes to spot after Ragho and
Milind were already brought down and already assaulted. To
that extent she supports her daughter PW-12 - Shukrita.
23. Report is lodged by PW-4 - Ragho. In his evidence,
he speaks of incidence in the morning as also in the evening.
His narration about Milind leaving to attend phone call in the
evening is consistent with his wife and daughter. He states that
shortly after Milind left to attend phone call, he followed Milind
and heard shouts. Fighting was going on. Vijay Dhoke
assaulted him with the means of an axe. Ashwadeep Dhoke and
Nandu Dhoke assaulted him with stick. Vijay Dhoke assaulted
him on head with an axe. Then he describes the weapons with
respective accused. He further states that he himself and Milind
were lying in pool of blood on the floor at the time mother of
Milind (Chandrabhaga) came there and started shouting.
Dhanpal Patil and Sachin Manwar picked up Milind and they
took Milind to Milind's house. Here it needs to be noted that
according to Shukrita, Milind was brought to her house. Then
he points out that he followed them. Thereafter he himself,
Milind and Gomaji were taken to hospital in bullock cart.
Ahilyabai also was occupying bullock cart. There he came to
know that his wife Ahilyabai and Gomaji were also assaulted.
He proves contents of his report. He further states that his
trouser was stained with blood.
24. His cross examination reveals that he followed
Dhanpal Patil and Sachin Manwar on foot. He also went to
Nagpur with Milind by ambulance. Milind was admitted in
Medical hospital. Ragho reached his village Nandgaon between
8.00 to 9.00 PM on next day i.e. on 11.09.2007. He added that
he came to village on 12.09.2007. Funeral of Milind was held
on 13.09.2007. Ragho was present in village on 12 th and 13th
September 2007. He accepted that on 12 th & 13th September
2007 police did not come to village for investigation. It is to be
noted that PW-19 - Sudhakar Sarode has in cross examination
stated that Ragho was not present in village on 12.09.2007.
Investigating Officer has denied suggestion that he recorded
statements of Ahilyabai, Shukrita and Sarita as per say of Ragho.
He accepted that he was not admitted in Hospital on
10.09.2007, however, immediately he added that he was
admitted and sent to Nagpur. He could not explain why the fact
of Milind coming to his house for dinner was not mentioned in
his report by police. He could not explain why the fact that
Milind received message about telephone call from somebody
did not appear in his report. Going of Milind to attend
telephone call towards Hanuman temple, Ragho following him,
Ragho hearing commotion are the omissions which he could not
explain. He further stated that while giving report, he told
police that when he reached near Milind, fighting was going on.
He could not explain why this fact did not appear in his report.
He deposes that he informed police about Vijay Dhoke
assaulting him by means of an axe. Nandu and Ashwadeep
beating him with sticks, Vijay assaulting him by an axe on
forehead, over right eye on occipital region, did not find
mention in his police report. Similarly, he could not explain the
fact that Siddharth Dhoke, Yash Dhoke were armed with axe,
Ravindra and Nashik armed with sticks or the fact that he
himself and Milind were lying in pool of blood did not figure in
his police report. He accepted that during Pola, every villager is
having stick while taking bullocks. He further accepted that
farmers keep an axe and stick with them. He accepted that he
did not see any special mark on either sticks or axe. He also had
not seen length, width or diameter of weapons. He accepted
that because weapons were shown to him, he answered the
question in affirmative. He further stated that on 17.09.2007,
his statement, statement of his wife Ahilyabai and Gomaji was
recorded at Yavatmal. He denied that their statements were
recorded on 12.09.2007 at Nandgaon. He denied that their
statements were recorded at Hospital on 17.09.2007. He stated
that on the day of incident, accused had come to his residence,
abused and went away. For performing Pola festival, about 200
people had gathered. Nobody was present at the time of
incident near Hanuman temple. Accused Vijay was standing
there. When he went to Police Station, accused Siddharth,
Ravindra and Vijay were not at Police Station. He denied that
Police had taken Vijay to hospital. He stated that he was not
aware that Vijay had suffered injuries on face, head and other
parts of body. He denied that first Siddharth lodged report
against them. He further stated that police seized sticks etc.
from the spot, in his absence.
25. He has denied suggestion of defence given by
accused persons. He denied that he had asked Milind to beat
Siddharth and Nashik. It is denied that in that assault Vijay
sustained injury of stick and axe. He denied that when on
second occasion he assaulted Vijay, Vijay avoided that blow and
it landed on Milind. He denied that thereafter to save Vijay,
Siddharth, Nashik, Ravindra came there. He has stated that on
the day of incident, he was admitted in hospital at Yavatmal.
Gomaji and Ahilyabai were also admitted there. He states that
he was admitted from 10.09.2007 to 22.09.2007 in Government
hospital at Yavatmal. Thus, he contradicts himself as earlier he
has deposed that he was in village on 12 th September 2007 and
had gone to Police Station on 17.09.2007. He has stated that he
was admitted in Hospital at Yavatmal for 3 - 4 hours in ICU. He
stated that Gomaji and Ahilyabai were discharged on
11.09.2007 by the Doctor. He stated that documents about
discharge may be with the police. He accepted that while giving
report, he disclosed that one incident of beating took place at his
house while one incident took place at Hanuman temple but
then accepted that no such incidence took place near his house.
He accepted that after the incidence, PW-19 - Investigating
Officer - Sarode never came to him. He accepted that while
giving report, he stated that while he was taking dinner between
6.00 and 6.30 PM, Siddharth Dhoke, Vijay Dhoke, Ravindra
Dhoke, Yash Dhoke and Nashik Gawande came there with sticks
and axe. He could not remember whether they abused his wife
Ahilyabai or assaulted him with sticks and axe. He also did not
remember that accused persons assaulted Gomaji, Milind with
sticks and axe on their head and, therefore, they had sustained
head injuries. It is obvious that this part of cross examination is
about the episode at his house and not at Hanuman square. It
appears that charge under S. 452 IPC was, therefore, framed.
He also states that previously he had lodged report against all
accused persons and, therefore, incident took place. But, from
the specific defence of the accused, it seems to be not in dispute
that Milind received fatal blow at a square near Hanuman
Temple.
26.
While speaking about incident in his report, this
witness has deposed that between 6.00 to 6.30 PM, accused
Siddharth, Vijay, Ravindra, Yash and Ashwadeep came with
stick and axe in his house and they abused his wife and
assaulted him, therefore, he sustained injury on his head. They
also assaulted Milind and Gomaji with sticks and axe and caused
injury on their head and hands. He specifically stated that this
incident took place at his house. He stated that accused Nandu,
Ashwadeep did not come in his house with other accused
persons and as they did not assault, he did not disclose their
names while giving report. Thus, this witness changes the spot
entirely and points out attack within his house on himself,
deceased Milind and Gomaji. But next part of his cross
examination reveals that Milind left his house for attending
phone call and then he heard shouts 5 to 7 minutes thereafter.
He accepted that cases for selling illicit liquor were filed against
him. He denied that he was stating for the first time in the
Court that incident took place near Hanuman Mandir. Thus,
this witness points out assault at his residence and thereafter
assault in front of Hanuman temple. No express suggestion is
given to him about later attack near Hanuman temple.
27. The fact that he was injured is not in seriously
dispute. His wife Ahilyabai and his uncle Gomaji were also
assaulted. His nephew Milind was killed in the incidence.
Chemical Analyser's report at Ex. 243 reveals human blood in
soil collected from the spot at Hanuman Temple. Human blood
is also found on a piece of wooden stick and a bamboo stick.
However, no blood is detected on any of the four axes, three
bamboo sticks and another wooden stick. But then human
blood at spot also supports the prosecution story of assault at
square near Hanuman Temple. Merely because one weapon
more than total number of accused is recovered under S.27 of
the Evidence Act, the deposition of the Investigating Officer is
not rendered doubtful. When the accused plead a blow of an
axe on Milind, not finding human blood on any axe is not a
circumstance in their favour.
28. PW-18 - Dr. Gajanand Kharote is the Medical
Officer, who has examined Milind, Ragho, Gomaji, Ahilyabai.
Medical Certificate issued by him after examining these persons
are at Exhs. 175, 176, 177 and 178. Use of hard and blunt
object to cause injuries to Gomaji and Ahilyabai is mentioned by
him. Injuries to Ragho are caused by heavy and sharp edged
object as per column No. 5 of Exh. 176. Injuries to the deceased
Milind are also by heavy and sharp object. His evidence does
not show that PW-12 Shukrita was injured at all. PW-12
Shukrita also does not, in her deposition, claim that she was
assaulted. Finding of Trial Court that Shukrita d/o Ragho was
also assaulted and punishing the appellants under Section 324
IPC for that assault is unsustainable. Injuries suffered by Gomaji
and Ahilyabai are by hard blunt object.
29. In Post mortem report of Milind Exh. 194, in column
No. 17, about 27 injuries are mentioned. In column No. 19,
internal injuries are mentioned. There are five incise wounds,
two chop wounds and there is also head injury. This militates
with specific defence of the accused which is being examined
below.
30.
It is in this background that we have to look into the
defence of the accused persons under Section 313 of the
Criminal Procedure Code. Accused No. 1 - Siddharth mentions
that villagers had gathered in front of Hanuman temple for Pola
festival. PW-4 - Ragho, PW-5 - Gomaji, PW-9 - Ahilyabai, one
Rukhmabai, Kundan and daughters of Ragho were present there
and moving around with wrong intention. Milind and Ragho
were carrying axe and others were carrying sticks. He,
therefore, inquired from Milind as to whom they were looking
for and Milind informed that they wanted to beat Nashik
Gawande, who quarreled in the morning on the issue of cutting
of peepal leaves/ branches. Accused No. 5 - Vijay expressed that
fighting was over in the morning and there was no point in re-
opening it. Milind, Ragho and Gomaji were under influence of
liquor. Ragho and Milind assaulted Vijay with axe uttering that
he was relative of Nashik Gawande. Blow of axe was given on
his head and hence he got bleeding injury. He shouted. At that
time, Gomaji, Ahilyabai, Rukhmabai, Kundan, Sarita and
Shukrita all assaulted Vijay. Villagers who were attending Pola
gathered. Siddharth tried to save his brother. Ragho Muneshwar
attempted to give blow of axe on head of Siddharth but he
avoided it. That blow landed on the head of Milind. Few blows
delivered by Ragho and Gomaji landed on Ahilyabai. Gomaji
also injured himself. Milind died because of injury of axe of
Ragho. The statement of accused No. 2 - Ravindra is on same
lines. Statement of accused No. 5 - Vijay Dhoke is again
identical. Accused No. 7 - Amol has also submitted his written
statement similarly. Thus, all these persons have in writing and
under their own signature, as a part of their 313 Criminal
Procedure Code examination, taken a specific defence. Their
effort is to paint that prosecution witnesses and the deceased
were aggressors. They do not dispute the spot or the presence
of the eye witnesses or the injuries caused to the eye witnesses.
31. This defence, therefore, establishes the spot in
relation to which prosecution has prepared spot panchnama and
carried investigation. Witness Ragho appears to be a rustic
person, who has contradicted himself in relation to this spot or
then in relation to his availability in the village on 12.09.2007 or
thereafter. But that is rendered inconsequential due to the above
defence.
32. Medico legal certificate of accused Vijay has not been
proved and in it reason of injuries given by Vijay is of fall in
intoxicated condition. Doctor attending him has recorded an
observation that there was strong smell of alcohol, his speech
was slurred and his gait was unsteady. No bleeding injury
caused by any sharp weapon was noticed on his head. He was
discharged at 3.45 AM on 11.09.2007 on own request.
33. Accused persons have not examined any witnesses in
defence to show that injured witnesses were aggressors. Even if
the residence of Ragho is accepted as spot, attendance of
accused persons there, does not advance their defence at all.
34. Deposition of PW-13 - Dhanpal Patil, a relative of
injured persons, is important. He states that people were
running towards Hanuman temple and hence he went there. He
found Milind lying on the ground, face downwards. He turned
him and noted that blood was oozing from his head. Sachin
Manwar was also present there. Ragho Muneshwar was also
lying in injured condition. Hence, he and Sachin took Milind to
the house of Milind. Accused persons Siddharth, Yash Dhoke,
Nashik Gawande and Ravindra Dhoke were standing near
temple with sticks and axe. He also deposes that Milind
Muneshwar told him that these persons assaulted him.
Thereafter Ragho came in the house of Milind informing that
very same persons assaulted him. In cross examination, he
accepted that Milind was unconscious. He also states that
Milind regained conscious when he was in bullock cart. Police
recorded his statement on third day after the incidence at the
house of Police Patil. He stated that after obtaining his
statement, police also took his signature. The statement of
Sachin was also recorded and then signature of Sachin was also
obtained. His further cross shows that he reached the spot after
the incidence. He took Milind to house of Milind within 5 to 10
minutes and went to bring bullock cart. He stated that except
for four accused persons, he did not see any other accused
person on the spot.
35. Thus, evidence of this person also establishes
presence of the accused with weapons on the spot. If accused
persons were not aggressors, there was no question of anybody
seeing them with weapons. Accused in that situation should
have immediately lodged a report and complained of attack on
them. They have not taken any such step.
36. No arguments are advanced about nature of injuries
sustained by Ragho, Ahilya or Gomaji. Conviction under S. 324
for assault on PW-12 Shukrita is also not assailed. But then
material on record shows that finding of Trial Court in that
respect is unsustainable. But then exoneration therefrom does
not result in any practical benefit to the appellants. Their
conviction by the Trail Court on other counts needs to be
maintained.
37. As stated by the Hon'ble Apex Court in the case of
Jodhan vs. State of Madhya Pradesh, reported at 2015 Cr. L.J.
3291, paragraph 22, an injured witness enjoys special status.
His testimony deserves credence unless there are strong grounds
for rejection of his evidence due to major contentions and
inconsistencies. Here the injuries are proved by an independent
medical evidence. In the case of Sikander Singh & Ors. Vs. State
of Bihar, reported at 2010 All MR (Cri) 2663 (S.C.), the Hon'ble
Apex Court holds that right of private defence is to be
established by the party setting it up and members of aggressors
party can not plead it. This judgment also shows that it is not
an unqualified proposition that prosecution has to always
explain the injuries sustained by the accused or for its failure to
explain, the prosecution version should be discarded. Paragraph
29 of this judgment also points out that such injuries must be
serious and sustained during the occurrence in question.
Accused persons including Vijay have not taken any steps to
prove the injury certificates. History of or reason for injuries
narrated in un-exhibited medical certificate on record by Vijay is
also not in favour of the accused persons. Therefore only,
accused might not have taken steps to get it proved. Paragraphs
21 & 22 in the case of Ashok Debbarama vs. State of Tripura,
reported at AIR 2014 SC (Suppl.) 1434 show that because of S.
313(4) answers given by the accused in their S. 313 Cr. P.C.
statements or their specific defence in it, can be looked into
while evaluating the material on record. Here, as stated above,
a specific case of Ragho accidentally inflicting an axe blow on
Milind has been unsuccessfully put to the eye witnesses by the
appellants. They have also chosen to submit it in writing as their
defence as part of their Section 313 examination. This case in
defence therefore can be looked into and it establishes the spot
as also the presence of appellants at the spot.
38. In this situation, in the light of arguments advanced, we do
not find anything wrong with the conclusions of the trial Court.
No case is made out warranting intervention.
39. We therefore pass the following order :-
A. Conviction of the appellants for the offence
under S. 147 IPC, for murder of Milind under Section
302 IPC and under S. 324 for assault on Ragho, Ahilya
and Gomaji is upheld.
B. Their conviction under Section 324 IPC for
assault on PW-12 Shukrita is quashed and set aside.
However, this does not in any way alter the quantum
of punishment.
C. Muddemal property be dealt with as directed by
the Trial Court after the appeal period is over.
D. Criminal Appeals are, therefore, dismissed.
JUDGE JUDGE
******
*GS.
