Gorakh Baban Kankate And Ors vs The State Of Maharashtra
2016 Latest Caselaw 3684 Bom

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                                                                          apeal.602.2005_J.doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                     
                                 CRIMINAL APPEAL NO.602 OF 2005
                                              WITH
                               CRIMINAL APPLICATION NO.831 OF 2016




                                                             
            1. Shri Gorakh Baban Kankate                              )
               r/at: Inamdar Vasti, Koregaon Mul                      )
               Tal.: Haveli, Dist. Pune                               )




                                                            
            2. Shri Uttam Patil Buva Kanchan                          )
               r/at: Inamdar Vasti, Koregaon Mul                      )
               Tal.: Haveli, Dist. Pune                               )
               (Appeal is abated as per Court's                       )




                                                  
               order dated 9.10.2006)                                 )
                                          
            3. Shri Ravindra Shankar Gaikwad
               r/at Panmala, Mahatobachi Alandi, Pune
                                                                      )
                                                                      )
                                         
            4. Shri Anna alias Babdya Kisan Gavare                    )
               r/at Mamane Wad,                                       )
               Tal. Daund, Dist.: Pune                                )
                

            5. Shri Pramod alias Bapu Kaluram Kanchan                 )
               r/at : Patil Wada                                      )
             



               Urali Kanchan, Tal.:Haveli, Dist.Pune                  )

            6. Shri Somnath Kaluram Kanchan                           )
               r/at Urali Kanchan, Tal.Haveli, Dist.Pune              ) .. Appellants
   




                  Vs.

            The State of Maharashtra                                  ) ... Respondent





            Mr.O.A. Siddiqui, with Ms.Vidya Pol More i/b Mr.Kamran Shaikh, for the
            Appellants
            Mr.R.B. Paranjape i/b A.V. Mandalik for Applicant in Criminal Application
            No.831 of 2016
            Mrs.A.S. Pai, APP, for Respondent - State.




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                                                                  apeal.602.2005_J.doc


                                        CORAM: MRS.V.K. TAHILRAMANI &
                                               MRS.MRIDULA BHATKAR, JJ.

DATE: JULY 11, 2016

ORAL JUDGMENT (PER MRS.MRIDULA BHATKAR, J.):

1. In this appeal against conviction, the judgment and order dated

16.5.2005 passed by the learned Adhoc Additional Sessions Judge, Pune,

is challenged. The accused are convicted for the offences punishable

under sections 302, 149 r/w 34 of the Indian Penal Code and are

sentenced to suffer R.I. for life and fine. The case of the prosecution in

brief is as follows:

The deceased Vilas Haribhau Londhe was assaulted on 2.3.2002

infront of a Maruti temple in village Urali Kanchan, Taluka Haveli, District

Pune at 9.30am. On account of a competition of wrestling in a fair, there

was a dispute between the deceased, his family members and the

accused persons A few years prior to the incident, the accused and

associates of the deceased quarelled and the deceased was prosecuted

in a criminal case registered against him. However, six moths prior to the

incident, the deceased and his brothers were acquitted and, therefore, the

accused were angry with them. The deceased and his family members

have constructed a temple of Lord Mahadev and they wanted to install the

deity. They wanted to give invitation for the same to the person concerned

and therefore before leaving, the deceased, his brother and friends went

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to a Maruti temple. At that time, the accused came and took the deceased

a little away. In the meantime, the complainant Prakash Londhe, the

brother of the deceased, went to another temple when he heard shouts of

his brother for help so when he rushed to Maruti temple. He saw the

accused and other persons armed with weapons were assaulting his

brother Vilas. Accused No.2 Uttam Patil was instigating them that the

deceased Vilas should be killed. Prakash requested them not to assault

his brother. Then, those persons fled away in jeep. It was 9.45am. The

complainant, his associates lifted Vilas Londhe to Sassoon hospital, Pune,

where he was declared dead. Therefore, the complainant went to Loni-

Kalbhor police station at Urali Kanchan and gave information to the police

pursuant to which the offence was registered at C.R. No.64 of 2004. The

police drew Spot panchanama (exhibit 49) and Inquest panchanama

(exhibit 30). On the same day, the police recorded statements of the

witnesses. Within couple of days, all the accused were arrested. Post-

mortem was conducted on the dead body of Vilas. The police prosecuted

10 persons out of them, accused No.10 Pravin Kunjir was a juvenile and

his case was separated. The police seized the weapons under the

discovery Panchanama. After completion of the investigation, the police

filed chargesheet before the learned Magistrate and thereafter the case

was committed to the Court of Sessions for trial. The learned Sessions

Judge framed charge under sections 149, 302, 143, 147, 148 against all

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the accused. They pleaded not guilty and adopted the defence that they

were innocent and falsely implicated due to previous rivalry. After

considering documentary as well as oral evidence, the trial was concluded

in conviction. Accordingly, the accused Nos.1, 2, 5, 4, 7 and 9 were

convicted and accused Nos.3, 6, 8 and 10 were acquitted. Accused No.2

died during the pendency of the appeal. Hence, this appeal.

2. The case stands on the evidence of five eye witnesses including

PW9 Prakash Londhe, the informant, who gave FIR (exhibit 66) on

2.3.2002. PW2 Arjun Mahadev Kakate, PW3 Ashok Shivaji Mehtre, who

was the uncle of the deceased Vilas, PW4 Pramod Devidas Londhe and

PW5 Rajesh Vitthal Tavare are the other eye witnesses. PW9 Prakash

Appa Haribhau Londhe has deposed that he had constructed a temple in

his land and wanted to install the idol of Lord Mahadev at the hands of

Gajanan Maharaj of Khopoli. He wanted to give invitation to him. So he

and his brother, Arjun, Sitaram, Ashok, Rajendra, Altaf and Pramod first

went to the temple of Maruti at Urali Kanchan in the morning at around

9.30 am. At that time, when he went to other temple and his brother was

standing infront of Maruti temple, he heard shouts of his brother Vilas

calling Appa (complainant) to save him. So, the complainant and his

friends rushed there. He found the original accused Nos.1, 4, 6, 7 and 9

i.e., the appellants assaulting his brother Vilas with different weapons. He

has deposed that accused Nos.4 and 7 were armed with sickles; accused

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No.1 Gorakh with chopper, accused No.5 Bandya with Sattur and accused

Somnath Kanchan was having Sattur and they mounted multiple assaults

on Vilas. His right hand, palm were completely severed from the body and

he was lying in a pool of blood. They reached there and started shouting.

They found that accused No.2 Uttam Kanchan was instigating the other

accused to kill the deceased and as they tried to intervene, the accused

persons ran away. The complainant and the other witnesses lifted Vilas

and took him to the hospital, where he was declared dead. On the point of

assault, the other eye witnesses corroborate the complainant in all

material particulars and have given very consistent versions.

3. Mr.Siddiqui, the learned Counsel for the Appellants/accused, has

submitted that the evidence of these eye witnesses and the complainant is

not reliable. These eye witnesses were in fact not present at the time of

assault. He read over the evidence of all the eye witnesses, the

complainant so also, the evidence of PW21 Raghunath Gangaram Jadhav,

police personnel attached to Haveli police station, PW22 Avinash

Shankarrao Shilimkar, the PSI attached to the Loni-Kalbhor police station.

The learned Counsel submitted that PW22 had received anonymous

phone call about some untoward incident at the temple. However, there is

no such record of anonymous call and the prosecution did not produce

entry in the police station diary to that effect. He also read over the

evidence of PW25 Suryakant Rangrao Kamble and PW26 Suresh

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Pandurang Bhosle, the Investigating Officer. After referring to the

evidence of these police personnel, he pointed out the omissions in the

evidence of eye witnesses. He submitted that there are basic inter se

inconsistencies in the evidence of these eye witnesses. He highlighted

that Shivaji, the uncle of the deceased, claimed that though he was

present at the time of the incident, he has also acted as panch for inquest

panchanama (exhibit 30) on the same day. The said panchanama was

drawn on the same day at around 1400 to 1500 hrs. However, in his

evidence, he did not say a word that he has acted as a panch. He further

relied on the evidence of API Jadhav, and highlighted that in the cross-

examination, this police officer, has given admission that there was nobody

to identify the dead body. So he called Appa Londhe i.e., the complainant,

and Appa arrived at the end of panchanama to identify the body. He

submitted that it appears that Ashok Mehtre was either not present at the

time of the incident or at the time of the inquest, and hence, his evidence

becomes doubtful.

4. It is true that Ashok Mhetre did not say in his examination in chief

that he was panch for inquest panchanama. However, his name is seen in

the body of inquest panchanama. As per his evidence, he was the uncle

of the deceased. So he ought to have identified the dead body. It was not

necessary to get the body identified from the complainant. The inquest

panchanama was exhibited at exhibit 30 as it is admitted by the defence

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under section 294 of the Code of Criminal Procedure. Therefore, it looks

that as a panchanama was admitted by the defence, learned Prosecutor at

the time of trial did not put any question to the witness in respect of the

spot panchanama. However, if at all Ashok Mehtre is related to the

deceased, he should have identified the body of the deceased. So at the

most it can be said that presence of this witness at the time of the inquest

panchanama appears doubtful. However, in his evidence on the point of

assault, he has supported the complainant. So, is the case of the other

eye witnesses, i.e., PW2 Arjun Kakate, PW4 Pramod Londhe and PW5

Rajesh Tavare. PW5 Rajesh Tavare was an adjacent land cultivator of the

deceased. Their presence on the spot was natural as they all wanted to

give invitation to Gajanan Maharaj for installation of idol of Lord Mahadev.

The FIR of PW9 Prakash Londhe (the complainant) was recorded

immediately and in the FIR, the names of PW2 Arjun Kakate, PW3 Ashok

Mehtre, PW4 Pramod Londhe and PW5 Rajesh Tavare are mentioned as

witnesses in the FIR as they were present near the incident of assault. In

the FIR, the names of the assailants alongwith weapons are also

mentioned.

5. Thus, the oral as well as documentary evidence produced by the

prosecution is found sufficient, consistent and reliable on the point of

assault and also attributing specific role to the assailants. Minor omissions

are bound to be there in the evidence of the witnesses but these are not

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material or significant omissions so that the evidence of these eye

witnesses can be dislodged.

6. As argued by the learned Prosecutor, it is a bad case for the

appellants because the assailants were known to the witnesses and the

incident has taken place in the morning at 9.30am. The learned Prosecutor

has submitted on the point of motive, that the evidence of the complainant

and the other eye witnesses tendered by the prosecution, is reliable and is

to be given a complete weightage. All these eye witnesses have stated

that there was a family dispute between the deceased and the family of

the accused Gorakh Kankate. Each one wanted to take credit of wrestling

competition which was held in the village on the day of religious fair.

There was conflict between the two groups and 4 to 5 years prior to the

incident, a quarrel between the two groups led to the prosecution against

the deceased and the complainant. However, 6 months prior to the

incident, the said case was concluded into acquittal. There was a motive of

previous enmity, which the prosecution has brought on record

successfully.

7. The prosecution has examined PW11 Dr.Shrikant Suresh

Chandekar from Sassoon hospital. He had performed the post-mortem on

2.3.2002 on the body of Vilas Londhe. He produced post-mortem notes

which are marked at exhibit 74. He has deposed that he noticed 32

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external injuries on the body of the deceased. Most of the injuries were

incised. They were on forehead, chest, face and stomach. There were

multiple facial and cranial fractures. There were fractures of left and right

maxillary bone. The heart plate was fractured. Deep stab wounds were

found on stomach, abdomen and right palm was severed from the body.

Doctor opined that the cause of death was shock due to multiple and

incise wounds and injuries. He also opined that the age of injuries indicate

that they had been inflicted simultaneously and with rapid succession. He

has also opined that there were many assailants as there were number of

injures and the injuries must be caused by sharp edged weapons. All the

weapons such as sickle, Sattur (Articles 28, 29 and 30) were shown to the

Doctor and he confirmed that the injuries are possible due to these

weapons. The post-mortem notes (exhibit 74) corroborate the evidence of

the Doctor. This medical evidence remained unshaken. The multiple

injuries and the cause of death speak in volumes about the brutality and

vengeance involved in killing the deceased. This medical evidence

supports the evidence of the eye witnesses, who have given the

description of the weapons and have stated that there were 6 to 7

assailants.

8. The learned Counsel for the defence has argued that recovery of

the weapons from the accused persons is bogus. These panchanamas of

discovery should not have been believed by the trial Judge. Mr.Siddiqui

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submitted that there is a doubt in the collection of the blood of the

deceased. The CA report (exhibit 168) is concocted.

9. Learned Prosecutor relied heavily on the CA report (exhibit 168).

She pointed out exhibit 139 is a CA report disclosing that the blood group

of the deceased was 'A'. She argued that the weapons of the accused,

which were recovered at the instance of the accused, also were found with

dried blood stains and after chemical analysis, the group of those blood

stains was found of blood group 'A'.

10.

Perused the evidence of PW16, Subhash Mahadev Vaykar. He has

stated about the recovery panchanama of weapons (exhibits 97 and 98)

i.e., sickle (article 28) at the instance of the accused No.4 is proved by the

prosecution. PW8 Tukaram Shankar Handal was examined to prove the

recovery of Sattur (article 29) at the instance of accused No.5 and

accordingly memorandum and discovery panchanama were drawn at

exhibits 63 and 64. Both these panchanamas were drawn on 6.3.2002

after arrest of the accused. PW12 Gangaram Rambhai Shivarkar has

deposed about the recovery of weapon at the instance of accused No.7

Pramod alias Bapu Kanchan i.e., sickle (article 30) and the memorandum

and discovery panchanama was marked at exhibit 87 collectively.

Recovery at the instance of accused Nos.1 and 9 is not proved. However,

their names are taken by all the eye witnesses about the presence. We do

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not find any reason to disbelieve these panchanamas. The CA report

(Exhibit 168), as pointed out by the learned Prosecutor, shows the blood

found on these weapons was of blood group A. That was of the deceased.

It is another incriminating circumstance establishing the nexus between

the assault and the accused. We do not find any reason to disbelieve the

eye witnesses. There may be some inconsistencies in the evidence of the

eye witnesses and some lacunae in the investigation, however, these are

all insignificant. We accept the evidence of the eye witnesses and hereby

confirm the judgment and conviction against all the accused.

11. Appeal is dismissed.

12. In view of the dismissal of the Appeal, nothing survives in the

Application and the same is disposed of accordingly.

          (MRIDULA BHATKAR, J.)                      (V.K. TAHILRAMANI, J.)






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