Bombay High Court
Shriram Narayan Raut & Ors vs The State Of Maharashtra on 4 August, 2017
Bench: T.V. Nalawade
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 400 OF 2000
1. Shriram s/o Narayan Raut
Age: 36 yrs, occu. : agri.
R/o Mhalas Javala, Taluka
and District Beed
2. Namdeo s/o Baliram Raut
Age : 50 years, Occu. and
R/o as above.
(Appeal abated against appellant No.2
as per Court's Order dated 19/4/2017)
3. Radhakishan s/o Ramrao Raut
Age : 36 years, Occu. and
R/o as above.
4. Mahadeo s/o Kisan Raut
Age: 38 years, Occu. and
R/o as above.
5. Gopinath s/o Ramrao Raut
Age: 55 years, Occu. and
R/o as above.
6. Jairam s/o Narayan Raut
Age: 27 years, Occu. and
R/o as above.
7. Mahadeo s/o Baliram Raut
Age : 40 years, Occu. and
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Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
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R/o as above.
8. Prabhu s/o Bhaurao Raut
Age : 30 years, Occu. and
R/o as above.
9. Ramnarayan s/o Madhav Raut
Age: 71 years, Occu. and
R/o as above.
10. Maroti s/o Madhav Raut
Age: 40 years, Occu. and
R/o as above.
11. Navnath s/o Sunderrao Khande
Age: 31 years, Occu. and
R/o as above.
12. Pralhad s/o Bhagwanrao Khande
Age : 40 years, Occu. and
R/o as above. ... APPELLANTS
(Orig. Accused Nos. 1, 2, 9,
15, 16, 18, 20, 22, 30, 34, 35 & 36)
VERSUS
The State of Maharashtra
(Copy to be served on Addl. P.P.
High Court of Bombay,
Bench at Aurangabad ... RESPONDENT
.....
Shri R.S. Deshmukh, Advocate for appellants
Shri R.V. Dasalkar, A.P.P. for State, assisted by
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Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
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Shri S.J. Salunke, Advocate for original complainant
.....
WITH
CRIMINAL APPEAL NO. 16/2001
The State of Maharashtra
Through Police Station, Pimpalner,
Taluka and District Beed. ... APPELLANT
VERSUS
1. Shriram s/o Narayan Raut
Age: 36 years, Occu. : Agri.
R/o Mhalas Javala,
Taluka and District Beed.
2. Namdeo s/o Baliram Raut
Age: 50 years, Occu. & R/o as above.
(Appeal abated against appellant No.2
as per Court's Order dated 19/4/2017)
3. Radhakishan s/o Ramrao Raut
Age: 36 years, Occu. & R/o as above.
4. Mahadeo s/o Kisan Raut
Age: 38 years, Occu. & R/o as above.
5. Gopinath s/o Ramrao Raut
Age: 55 years, Occu. & R/o as above.
6. Jairam s/o Narayan Raut
Age: 27 years, Occu. & R/o as above.
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Criminal Appeal No.400/2000 with
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7. Mahadeo s/o Baliram Raut
Age : 40 years, Occu. & R/o as above.
8. Prabhu s/o Bhaurao Raut
Age : 30 years, Occu. & R/o as above.
9. Ramnarayan s/o Madhav Raut
Age: 71 years, Occu. & R/o as above.
10. Maroti s/o Madhav Raut
Age: 40 yrs, occu. : agri.,
11. Navnath s/o Sunderrao Khande
Age: 31 years, Occu. & R/o as above.
12. Pralhad s/o Bhagwanrao Khande
Age : 40 years, Occu. & R/o as above. ... RESPONDENTS
(Orig. accused Nos. 1, 2, 9,
15, 16, 18, 20, 22, 30, 34,
35 & 36).
.....
Shri R.V. Dasalkar, A.P.P. for appellant/ State, assisted by
Shri S.J. Salunke, Advocate for original complainant
Shri R.S. Deshmukh, Advocate for respondents
.....
WITH
CRIMINAL APPEAL NO.15 OF 2001
The State of Maharashtra
through Police Station,
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Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
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Pimpalner, Tq. & District Beed ... APPELLANT
VERSUS
1. Haribhau s/o Bhairuji Khande
Age 65 years, Occu. Agri.,
R/o Mhalas Javala, Tq. & Dist. Beed.
2. Dadarao s/o Ramnarayan Raut,
Age 35 years, Occu. & R/o as above.
3. Maruti s/o Haribhau Khande
Age 29 years, Occu. & R/o as above.
4. Shivaji s/o Haribhau Khande
Age 35 years, Occu. & R/o as above.
5. Rameshwar s/o Narayan Raut,
Age 26 years, Occu. & R/o as above.
6. Giyandeo s/o Ramrao Raut,
Age 35 years, Occu. & R/o as above.
7. Jalindar s/o Bajirao Raut
Age 35 years, Occu. & R/o as above.
8. Rama s/o Bhaurao Raut
Age 26 years, Occu. & R/o as above.
9. Dharmraj s/o Namdeo Raut,
Age 28 years, Occu. & R/o as above.
10. Babasaheb s/o Kishanrao Raut,
Age 50 years, Occu. & R/o as above.
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Criminal Appeal No.400/2000 with
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11. Bhujang s/o Deorao Raut,
Age 55 years, Occu. & R/o as above.
12. Asruba s/o Madhav Raut,
Age 50 years, Occu. & R/o as above.
13. Hariram s/o Sitaram Raut,
Age 32 years, Occu. & R/o as above.
14. Navnath s/o Sheshrao Raut,
Age 29 years, Occu. & R/o as above.
15. Gangadhar s/o Baliram Raut,
Age 30 years, Occu. & R/o as above.
16. Yadavrao s/o Madhavrao Raut,
Age 45 years, Occu. & R/o as above.
17. Keru s/o Maroti Raut,
Age 25 years, Occu. & R/o as above.
18. Sitaram s/o Dashrath Raut,
Age 70 years, Occu. & R/o as above.
19. Atmaram s/o Sitaram Raut,
Age 45 years, Occu. & R/o as above.
20. Sakharam s/o Ramnarayan Raut,
Age 26 years, Occu. & R/o as above.
21. Ashok s/o Bhujangrao Raut,
Age 25 years, Occu. & R/o as above.
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22. Damodhar s/o Baliram Raut,
Age 35 years, Occu. & R/o as above.
23. Raykoba s/o Limbaji Raut,
Age 44 years, Occu. & R/o as above.
24. Santram s/o Ramnarayan Raut,
Age 40 years, Occu. & R/o as above.
25. Rajaram s/o Shivnarayan Raut,
Age 30 years, Occu. & R/o as above.
26. Satish s/o Raosaheb Raut,
Age 31 years, Occu. & R/o as above.
... RESPONDENTS
(Ori. Accused Nos.3 to 8,
10 to 14, 17, 19, 21, 23 to
29, 31 to 33, 37 & 41)
.....
Shri R.V. Dasalkar, A.P.P. for appellant/ State, assisted by
Shri S.J. Salunke, Advocate for original complainant
Shri R.S. Deshmukh, Advocate for respondents
.....
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
Date of reserving judgment : 18th July, 2017.
Date of pronouncing judgment : 4th August, 2017.
JUDGMENT : (PER SUNIL K. KOTWAL, J.)
1. Criminal Appeal No. 400/2000 is directed by
original accused Nos.1, 2, 9, 15, 16, 18, 20, 22, 30, 34, 35
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
and 36 against judgment and order of their conviction under
Sections 147, 148, 304- II, 326, 324 and 323 read with Section
149 of the Indian Penal Code by Additional Sessions Judge, Beed
in Sessions Case 69/1995 dated 29.08.2000.
2. Criminal Appeal No. 16/2001 is preferred by the
State against the same judgment and order to enhance the
sentence of convicted accused and to convert their conviction
under Section 302 of the Indian Penal Code.
3. Criminal Appeal No.15/2001 is preferred by the State
against the acquittal of original accused No.3 to 8, 10 to 14, 17,
19, 21, 23 to 29, 31 to 33, 37 and 41 in the same Sessions Trial.
These three appeals are disposed of by this common judgment.
4. In Criminal Appeal No. 400/2000, appellants are the
original accused and respondent is the State.
5. Prosecution case, in brief, is that at villageMhalas
Jawala, on account of Grampanchayat elections two rival parties
existed. One party was led by Dnyanoba Maruti Khande and
other was led by accused No.1 Shriram Narayan Raut. These
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
both parties are on inimical terms. Limba Abaji Khande was the
Sarpanch of this village at the relevant time of occurrence.
Murlidhar Ramkisan Khande used to run one Fair Price Shop in
the village Mhalas Jawala. However, prior to the occurrence of
the incident, accused No.1 Shriram Narayan Raut succeeded in
getting second Fair Price Shop in the same village. On account of
Fair Price Shop, dispute started in between the parties.
6. On 10.03.1994 at about 8.30 a.m. when Mohan
Laxman Khande (PW-4) went to the shop of Washer-man, that
time accused Nos. 1, 2, 15, 22 and 9 went to that shop, dragged
Mohan Khande out of that shop and while beating him by stick
and kicks, they brought him near Maruti temple in the village.
When Mohan (PW-4) started shouting, that time deceased
Uddhav Khande, who was sitting near spot, tried to intervene to
save Mohan from the clutches of these accused persons. That
time accused No.1 inflicted single iron bar blow on the head of
Uddhav Khande. He sustained bleeding injury on his head and
fell down. Mohan (PW-4) and Uddhav Khande were assaulted by
accused Nos. 1, 2, 9, 15, 16, 18, 19, 20, 22, 30, 34, 35 and 36
as well as by other accused persons by fist, kicks and sticks.
Bhartari Uddhav Khande and Kedar Uddhav Khande as well as
Rameshwar Uddhav Khande, who were the sons of Uddhav
Khande, tried to save him. They were also assaulted by accused
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
persons by stick, fist and stones. When the persons from
Khande group tried to intervene, they were also severely
assaulted by accused persons by sticks, kicks and stone. Uddhav
Khande (hereinafter referred as "deceased") and his son Kedari
were lying on the spot when the accused left spot of the incident.
By the time, Police Station, Pimpalner was informed. Therefore,
P.S.I. S.S. Khan (PW-17) rushed on the spot. By that time,
injured persons were admitted in Civil Hospital, Beed. Mohan
Khande (PW-4) approach P.S.I. Khan (PW-17) and lodged F.I.R.
(Exh.95) which was sent to the Police Station, Pimpalner.
7. Head Constable C.R. Kolhe received F.I.R. at about
12.30 p.m. and registered Crime No. 36/1994 against accused
persons under Sections 147, 148, 337 and 307 read with Section
149 of the Indian Penal Code and under Section 135 of the
Bombay Police Act.
8. Uddhav Khande succumbed to the injuries in Civil
Hospital, Beed. Therefore, inquest panchnama (Exh.87) was
drawn. Blood stained clothes of the deceased were seized
(Exh.88). On the same day P.S.I. Khan (PW-17) prepared spot
panchnama (Exh. 90) and seized 44 stones, 13 sticks, one big
stone, blood stained piece of pant, gunny bag, blood mixed earth
Criminal Appeal No.400/2000 with
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and normal earth from the spot of the incident. On the same day
accused Nos. 1 to 16 were arrested. On 11-03-1994 accused
Nos. 17 to 21 were arrested. During the course of investigation
axe was recovered from accused No.18 Jairam Narayan Raut,
two iron bars from accused No.9 Radhakisan Ramrao Raut, one
iron bar from accused No.1 Shriram Narayan Raut and 7 sticks
from accused No.15 Mahadeo Kisan Raut. By that time, Dr. R.B.
Deshpande (PW-12) performed postmortem examination on
deceased and by submitting postmortem notes (Exh.117), opined
that cause of death of the deceased was due to "cardio-
respiratory failure due to head injury with fracture of skull with
intracraniul haemorrhage". Dr. R.G. Rambaksh (PW-13)
examined injured Kedari Khande and Rameshwar Khande at Civil
Hospital, Beed and Dr. B.N. Chalak (PW-14) examined other
injured persons from Khande group at P.H.C. Majalgaon. After
completion of investigation, charge-sheet was submitted in the
Court of Judicial Magistrate, First Class at Beed against accused
for the offences punishable under Sections 147, 148, 302, 326,
325, 337, 324 and 323 read with Section 149 of the Indian Penal
Code and under Section 135 of Bombay Police Act. Offence
punishable under Section 302 of I.P.C. being exclusively triable
by the Court of Sessions, this case was committed to Sessions
Court, Beed.
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
9. Charge was framed against accused persons for the
offences punishable under Sections 147, 148, 302, 326, 324, 337
and 323 read with Section 149 of the Indian Penal Code and
under Section 37 (1) read with Section 135 of Bombay Police Act.
Contents of the charge were read over and explained to accused
in vernacular to which accused pleaded not guilty. Defence of the
accused is of total denial. According to accused, on the date of
incident at about 8.30 a.m. the group of Dnyanoba Khande and
Mohan Khande assaulted accused No.9 Radhakisan Raut near
Maruti temple and after hearing hue and cry of Radhakisan Raut,
other villagers and the persons from the group of accused No.1
Shriram rushed on the spot to save Radhakisan. That time there
was a fight in between two groups and stone pelting took place.
During this occurrence deceased and other persons from Khande
group sustained injuries.
10. After considering the evidence placed on record, the
learned trial Court pleased to convict accused Nos. 1, 2, 9, 15,
16, 18, 20, 22, 30, 34, 35 and 36 for the offences punishable
under Sections 147 and 148 of the Indian Penal Code and
sentenced to suffer Rigorous Imprisonment for 6 months and to
pay fine of Rs. 100/- each on these both counts. Same accused
were also convicted for the offences punishable under Section
304-II read with Section 149 of the Indian Penal Code and were
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
sentenced to suffer Rigorous Imprisonment for 3 years and to
pay fine of Rs. 250/- each, under Section 326 read with Section
149 of I.P.C. and sentenced to suffer Rigorous Imprisonment for
2 years and to pay fine of Rs. 200/- each, under Section 324
read with Section 149 of I.P.C. and sentenced to suffer Rigorous
Imprisonment for 6 months and to pay fine of Rs. 100/- each and
under Section 323 read with Section 149 of I.P.C. and sentenced
to suffer Rigorous Imprisonment for 3 months and to pay fine of
Rs. 50/- each. Trial Court directed that all the substantive
sentences shall run concurrently. Accused Nos. 3, 28, 10 to 14,
17, 19, 21, 23 to 29, 31 to 33 and 37 to 41 were acquitted of all
charges. Therefore, these appeals arise.
11. In the case at hand, prosecution has examined total
17 witnesses. Out of these witnesses, Babasaheb Lahane
(P.W.1) is witness on inquest panchanama (Exh.88) as well as
seizure of the clothes of deceased. Achyut Khande (P.W.2) is the
witness on spot panchanama (Exh.90) wherein he found and
seized blood stained piece of pant, 13 sticks, blood stained gunny
bag, one large stone and 40 small stones as well as samples of
the earth. After going through the cross-examination of these
both panch witnesses, it emerges that, nothing could be elicited
from their cross-examination to disbelieve their version. On the
other hand, same spot panchanama is also used by prosecution
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
in counter case filed against prosecution witnesses on the basis
of incident which occurred on the same date, time and place.
Therefore, no more discussion is required regarding these two
panchanamas. In fact, spot of occurrence near the Maruti
Temple is not at all disputed by the defence.
12. Before analysing the evidence of eye witnesses, we
propose to examine the circumstantial evidence placed on record
by prosecution in the form of recovery of incriminating articles
i.e. one axe, 3 iron bars and 7 sticks from the accused No.1
Shriram Raut, accused No.6 Jayram Raut, accused No.3
Radhakishan Raut and accused No.7 Mahadeo Raut. Bhaskar
Khande (P.W.10) is the panch witness, who claims that
on13/3/1994 at Police Station Pimpalner, in his presence,
accused No.6 Jayram Raut made disclosure statement (Exh.105).
Accused Radhakishan agreed to produce iron bar from the flour
mill of Mahadeo Raut (Exh.106) and accused No.1 Shriram Raut
agreed to produce one iron bar kept in the cattle shed (Exh.107).
According to this witness, accused No.4 Mahadeo Raut agreed to
produce sticks kept in cattle shed of Khanderao Raut (Exh.108).
It is to be note that, even testimony of Bhaskar Khande (P.W.10)
is accepted as it is, still the above referred vague statements of
the accused persons cannot be termed as statement of discovery
of new fact within meaning of Section 27 of the Evidence Act.
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
This witness nowhere says that, accused disclosed the place
where the above referred weapons were 'hidden'. From the
cross-examination of this witness, it emerges that, he signed the
already prepared panchanama and police told him that sticks,
axe and bars were seized from accused. It means that, the
above referred incriminating articles were already seized by
police and in presence of this witness, only recovery
panchanamas were prepared. Thus, otherwise also the evidence
of this witness is of no use to the prosecution to prove that as
per statement given by accused in police custody weapons of the
offences were seized from hidden places which were out of the
sight of any other person.
13. Even evidence of P.S.I. Sharifkhan (P.W.17), who is
the investigating officer, is absolutely vague regarding what
statements were given by accused persons in police custody
pertaining to discovery of any weapon of the offence. Vague
statement of this witness that accused agreed to produce weapon
of the offences is not discovery statement within meaning of
Section 27 of the Evidence Act. cat has come out of the bag
when this witness was subjected to searching cross-examination
by defence counsel. From his cross-examination, it emerges
that, this witness even could not identify accused persons from
whom the weapon of the offences were recovered. By taking
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
name, accused No.6 Jayram, he pointed out towards accused
No.9 Radhakishan as the person who made statement of
discovery. This witness cannot tell whether the seized weapons
were hidden or visible to anybody. Even in recovery
panchanamas, it is not mentioned whether the recovered
weapons were hidden or were visible to anybody. Therefore, the
evidence placed on record by prosecution regarding recovery of
incriminating article i.e. weapon of the offences as per disclosure
statement of the accused is nothing but useless piece of the
evidence and is of no help to the prosecution to connect the
accused persons with the alleged crime.
14. Otherwise also, the so called recovered articles were
neither kept in sealed condition at Police Station nor they were
sent to Chemical Analyser to find out whether these articles bear
blood stains of deceased or any injured person. Therefore, the
link in between seized articles and accused persons is totally
missing. As rightly pointed out by learned defence counsel, the
entire circumstantial evidence placed on record by prosecution to
establish the guilt of the accused is not free from infirmities and
needs to be discarded in toto.
15. The third panch Mahadeo Khande (P.W.11) examined
by prosecution is to prove the seizure of blood stained clothes
Criminal Appeal No.400/2000 with
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from injured Kedari Khande. The evidence of this witness is not
seriously challenged by the defence counsel and nothing could be
elicited to disbelieve the version of this witness that Articles 17
and 18, blood stained shirt and pant were seized from the
possession of injured witness Shri Kedari Khande. In subsequent
part of the judgment, we will consider how far this seizure of
blood stained clothes is useful to the prosecution to establish the
guilt of the accused persons.
16. Mohan Laxman Khande (P.W.4) is the informant who
lodged F.I.R. regarding the occurrence of incident dated
10/3/1994. From the testimony of this witness, it emerges that
on 10/3/1994 at about 7.30 a.m., he had been to the shop of
Washerman for for taking delivery of his clothes. That time,
accused No.1 to 15, 22 and 9 came to that shop, pulled this
witness out of the shop and took him up to the platform of Maruti
Temple. In front of Maruti Temple, these accused persons
started beating Mohan Khande (P.W.4) by sticks and fist blows
and when he shouted loudly, that time deceased, who was the
cousin uncle of this witness, came on the spot to rescue this
witness. That time, accused No.1 Shriram, uttered words "Tumhi
Khande Lok Majlet" and inflicted iron bar blow on the head of
deceased, who sustained bleeding injury on his head and fell
down on the same spot. Thereafter, accused No.1, 2, 3, 4, 6, 8,
Criminal Appeal No.400/2000 with
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9, 10, 11, Pralhad Khande, Hari Bhairaj, Shivaji Haribhau started
beating deceased who was lying on the ground. When sons of
deceased namely Bhartari (P.W.3), Kedari (P.W.9) and
Rameshwar tried to rescue the deceased, that time, the accused
persons started beating them. During this occurrence, Kedari
(P.W.9) sustained injuries on his head and leg. Even Bhartari
(P.W.3) sustained injuries. When other persons from Khande
group came to rescue the deceased and his sons, that time
accused persons started beating them. Accused persons left the
spot when deceased and Kedari were lying on the ground in
seriously injured condition. Therefore, deceased Kedari and
other injured persons were taken to hospital at Beed. From the
testimony of this witness (P.W.4), it emerges that when police
reached on the spot, this witness lodged F.I.R. (Exh.95). The
testimony of this witness is fully corroborated by Bhartari (P.W.3)
and Kedari (P.W.9) by repeating same story.
17. According to both these witnesses, they were also
assaulted by sticks and iron bar as well as by stones and due to
that assault, Kedari sustained injury on his head above left eye-
brow, shoulders, lap, back and, therefore, he became
unconscious. Other eye witnesses Dharmaraj Khande (P.W.5),
Dinkar Khande (P.W.6), Murlidhar Khande (P.W.7), Motiram
Khande (P.W.8) have also fully corroborated the version of these
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Cri.Appeal No.16/2001 & 15/2001
witnesses regarding assault to deceased by iron rod on his head
by accused No.1 and assault to the sons of deceased by other
accused by sticks and stones. From the testimony of all
prosecution witnesses, it also emerges that the deceased was
assaulted by other accused by sticks when he was lying injured
on the spot. From the testimony of these witnesses, it further
emerges that, on the date of incident, the deceased succumbed
to his injures in the Civil Hospital at Beed.
18. Dr. Ramchandra Deshpande (P.W.12) has also proved
the post mortem notes (Exh.117) of the deceased as well as the
injuries found on the dead body and cause of death of the
deceased due to "cardio respiratory failure, due to head injury,
with fracture skull with intracraniul haemorrhage". Medical
Officer (P.W.12) opined that, the contused lacerated wound on
occipital parietal region of size 2 ½ x ½ x 1 inch up to bone and
contused lacerated wound of parietal region of size of 2 cm. x ½
cm. x 1 cm. with corresponding internal large extradural
hamatoma compressing the brain matter, were sufficient to
cause death of the deceased. He also opined that these injuries
are possible due to iron bar (Article 9) referred to this witness.
This medical officer also found fracture and dislocation of left
elbow joint and fracture of parietal right side bone of the
deceased. Nothing could be elicited in his cross-examination to
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Cri.Appeal No.16/2001 & 15/2001
shake his version. Thus, homicidal death of the deceased is
established by the prosecution beyond reasonable doubt.
19. Now we have to examine whether oral testimony of
eye witnesses is reliable to base the conviction of accused.
Learned counsel for the accused raised objection that,
prosecution has not established the motive behind the murder of
deceased. He pointed out my attention towards cross-
examination of Bhartari (P.W.3) wherein he has admitted that,
deceased was not involved in village politics and there was no
dispute in between members of his family and accused persons.
Otherwise also, no evidence is placed on record by prosecution to
show that the deceased had any dispute with the accused
persons. On the other hand, from the cross-examination of
Bhartari (P.W.3), it also emerges that, deceased never contested
even Grampanchayat election of Mhalas Javala, which was the
root cause for dispute in between Khande group and Raut group.
Thus, there was no political rivalry in between deceased and
accused to commit the murder of deceased. In the
circumstances, we have no hesitation to hold that prosecution
has failed to establish the motive behind the murder of deceased.
20. However, as rightly pointed out by learned A.P.P.,
only on the ground of absence of motive, the accused persons
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
are not entitled to acquittal, if otherwise the direct evidence of
eye witnesses is trustworthy to establish the guilt of the accused.
Learned defence counsel raised next objection that from the
cross-examination of Ganpat Khande (P.W.15), who was police
patil of village Mhalas Javala, it emerges that, after the
occurrence of incident, for the first time he informed the police
on telephone. However, Ganpat Khande (P.W.15) has deposed
otherwise that though he tried to contact Pimpalner Police
Station on phone, he could not make the contact and, therefore
he sent private jeep to Pimpalner Police Station and thereafter
police reached on the spot. Therefore, it cannot be said that
police patil had informed all the details of the occurrence of the
incident to the Police Station, Pimpalner on telephone. Even
from the testimony of Head Constable C.R. Kolhe (P.W.16), who
was the Police Station Officer on duty on 10/3/1994, it emerges
that, he received information about fight at Mhalas Javala after
receiving telephonic call from Tahsildar Office. Only P.S.I. Sharif
Khan (P.W.17) has admitted in his cross-examination that when
he reached on the spot, the police patil told him about the
incident, but he did not record the information given by police
patil. According to defence, the information given by police patil
was the real F.I.R., which is suppressed by th prosecution.
21. However, this submission of defence counsel is not
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
acceptable, because, Mohan Khande (P.W.4) was the cause
behind the occurrence of the incident and he was present in the
village and available to P.S.I. Khan for necessary details and
information. Therefore, if P.S.I. Khan preferred to obtain all the
details of the occurrence from Mohan Khande (P.W.4) and
obtained his F.I.R., it cannot be said that real F.I.R. was
suppressed by prosecution.
22. Next objection of defence counsel is regarding
inordinate delay in lodging F.I.R. However, from the testimony
of P.S.I. Khand (P.W.17), it emerges that, on 10/3/1994, Police
Station Officer Shri Kolhe (P.W.16) received information
regarding mishap at village Mhalas Javala and thereafter P.S.I.
Khan reached on the spot and recorded the First Information
Report of Mohan Khande (Exh.95). From his cross-examination,
it emerges that, he recorded the complaint of Mohan Khande
(P.W.4) at about 10.00 a.m. to 12.30 p.m. However, Head
Constbale Kolhe (P.W.16) has made it clear that he received
F.I.R. (Exh.95) which was signed by P.S.I. Khan at about 12.30
p.m. and accordingly, registered Crime No.36/1994 under
Sections 147, 148, 149, 307 of the Indian Penal Code. Thus,
when incident occurred at 8.30 a.m. and it was received by P.S.I.
Khan at about 10.00 a.m., and when Pimpalner Police Station
registered F.I.R. at 12.30 p.m., it cannot be said that there was
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
inordinate delay in lodging the F.I.R. We do not find inordinate
delay in lodging the F.I.R. which creates possibility of concoction
of false case by the prosecution.
23. Learned defence counsel has pointed out that, names
of all 41 accused are not mentioned in the F.I.R. In reply,
learned A.P.P. submitted that F.I.R. need not contain all the
details of the occurrence and names of all accused persons.
24. We do not find any substance in the objection raised
by learned defence counsel for the simple reason that the F.I.R.
is nothing but information to the police regarding occurrence of
the cognizable offence within jurisdiction of that police station. It
is not the encyclopedia which includes each and every minute
details of the occurrence. We may refer "Mukesh & anr. Vs.
State of NCT of Delhi & ors." reported in (AIR 2017 SC
2161), wherein the Apex Court ruled that, F.I.R. is not an
encyclopedia which is expected to contain all details of
prosecution case, it may be sufficient if broad facts of
prosecution case alone appear. Merely because names of
accused persons not named in F.I.R., serious doubt against case
of prosecution cannot be raised.
25. In the case at hand, the F.I.R. (Exh.95) shows that,
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
informant Mohan Khande (P.W.4) had only mentioned names of 5
accused persons and broadly he has mentioned that accused
persons assaulted him and when deceased and other persons
tried to rescue him, that time accused persons assaulted them by
sticks and stones, and deceased was seriously injured. He has
also made it clear in the F.I.R. itself that, due to confusion he
could not understand the names of all remaining assailants, but
approximately 15 persons assaulted him and the other persons.
This information supplied by Mohan Khande (P.W.4) in F.I.R.
(Exh.95) is sufficient disclosure of occurrence of the incident.
Only because names of all accused persons are not mentioned in
F.I.R. and only because overt act of each accused persons is not
mentioned in the F.I.R., prosecution case cannot be doubted.
26. Next objection raised by defence counsel is that, all
examined so called eye witnesses are interested and partisan
witnesses and their statements are inconsistent with their
statements before police as well as in variance with medical
evidence. On the other hand, learned A.P.P. submitted that, only
because witnesses are interested witnesses, on that count
evidence of truthful witnesses cannot be doubted.
27. Prosecution has examined Bhartari Khande (P.W.3),
Mohan Khande (P.W.4), Dharmaraj Khande (P.W.5), Dinkar
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
Khande (P.W.6) Murlidhar Khande (P.W.7), Motiram Khande
(P.W.8), Kedari Khande (P.W.9) and Ganpat Khande, Police Patil
(P.W.15) as eye wintesses of the incident. Out of these
witnesses, Bhartari (P.W.3) and Kedari (P.W.9) are the sons of
deceased. Dr. Rambaksh (P.W.13) has also proved injury
certificate of Kedari Khande (P.W.9 -Exh.119) which shows that,
Kedari sustained two contused lacerated wounds on right parietal
frontal over left eye-brow, one contusion over left shoulder and
contusion over left thigh as well as over right eye-brow. Dr.
Rambaksh (P.W.13) has also proved that right ulna bone lower
end of Kedari was fractured during the incident. This fracture
injury is definitely grievous hurt. Thus, Kedari Khande is the
witness who sustained grievous hurt at the hands of accused
while attempting to save the life of his father (deceased). Apart
from this injured witness, Dharmaraj Khande (P.W.5), Dinkar
Khande (P.W.6) and Murlidhar Khande (P.W.7) as well as
Motiram Khande (P.W.8) are also injured witnesses, whose
injuries are proved by Dr. B.N. Chalak (P.W.14). These 5
witnesses being injured witnesses, their presence on the spot of
the incident cannot be doubted.
28. In "Mano Dutt and another Vs. State of Uttar
Pradesh" reported in (2012) 4 SCC 79, Apex Court ruled that,
"where witness to the occurrence has himself been injured in the
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
incident, the testimony of such a witness is generally considered
to be very reliable, as he is a witness that comes with a built-in
guarantee of his presence at the scene of the crime and is
unlikely to spare his actual assailant(s) in order to falsely
implicate someone. 'Convincing evidence is required to discredit
an injured witness'."
29. Regarding contradictions and omissions, the Apex
Court had occasion to consider this aspect in "Sunil Kumar
Sambhudayal Gupta" reported in (2010 AIR SCW 7049).
While dealing with the issue of material of contradictions, Apex
Court held that,while appreciating the evidence, the court has to
take into consideration whether the contradictions/ omissions
had been of such magnitude that they may materially affect the
trial. Minor contradictions, inconsistencies, embellishments or
improvements on trivial matters without effecting the core of the
prosecution case should not be made a ground to reject the
evidence in its entirety.
30. Apart from the oral testimony of Kedari (P.W.9),
which is already discussed above, even Dinkar Khande (P.W.6),
who is one of the injured witness, has categorically deposed
before the Court that, at the time of incident, when he reached
on the spot, he saw all the accused (convicted) holding sticks,
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
stones and iron bars and accused No.1 inflicted iron bar blow on
the head of deceased and accused No.2, 16, 15 and 9 assaulted
the deceased by sticks and stones. When Kedari (P.W.9)
intervened, he was assaulted by stick on his head along with his
brother Bhartari. Injured witness Murlidhar Khande (P.W.7) has
also repeated the same story of assault to deceased and his sons
by accused by sticks and iron bars. Motiram Khande (P.W.8),
who is one of the injured witness, has repeated same story
regarding assault to deceased on his head by iron bar by accused
N.1 and assaulted Kedari and Bhartari by other accused when
they tried to save their father. Apart from injured eye witnesses,
Bhartrai (P.W.3), Mohan Khande (P.W.4) and Police Patil Ganpat
Khande (P.W.15) have fully corroborated the tesitmony of all
injured witnesses, specially Kedari Khande (P.W.9).
31. No doubt, learned defence counsel has pointed out
certain improvements and contradictions in the oral evidence of
these witnesses. However, if these omissions and contradictions
are examined carefully, it becomes clear that, the inconsistencies
emerging in the testimony of these injured eye witnesses do not
shake the basic version of these witnesses that the above
referred convicted accused persons assaulted the deceased by
iron bar and stick blows. Everybody is consistent regarding the
iron bar blow inflicted by accused No.1 Shriram Raut on the head
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
of deceased. Every injured witness has specified as to how he
sustained injuries at the time of occurrence and which accused
caused that injury. Therefore, when testimony of these
witnesses is fully corroborated by medical evidence of Dr.
Rambaksh (P.W.13), Dr. Chalak (P.W.14), who examined the
injured at Civil Hospital, Beed and P.H.C., Majalgaon respectively,
merely on the ground of minor discrepancies which do not shake
the basic version of these witnesses, the testimonies of theses
important witnesses cannot be discarded.
32. Accordingly, after careful examination of oral
evidence of eye witnesses, P.W.3 to P.W.9 and P.W.15, which is
fully corroborated by prompt F.I.R. (Exh.95) as well as medical
evidence of Dr. Rambaksh (P.W.13) and Dr. B.N. Chalak
(P.W.14), we have no hesitation to hold that prosecution has
proved that on 10/3/1994 at about 8.30 a.m. at village Mhalas
Javala, accused No.1, 2, 9, 15, 16, 18, 20, 22, 30, 34, 35 and 36
have caused homicidal death of deceased and they have
voluntarily caused grievous hurt to Kedari Udhav Khande and
simple hurt to other persons, which will be discussed in
subsequent part of this judgment.
33. Before coming to any conclusion, we must consider
the important objection raised by learned defence counsel that,
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
cross Sessions Case No.91/1998 was filed against informant and
other prosecution witnesses, and in the cross-examination of Dr.
B.N. Chalak (P.W.14), the defence has also proved injuries
sustained by accused No.16, 11, 10, 7, 5, 6, 12, 2, 14, 4 and 9.
These injuries are not explained by prosecution and, therefore,
possibility cannot be ruled out that the accused persons acted
while exercising right of private defence. He place reliance on
Bhagwan Vs. State of Rajasthan reported in (2016) 13 SCC
171, wherein benefit of doubt was given to the accused on
account of suppression of genesis and origin of occurrence of the
incident by prosecution as well as non explanation of death and
injuries on the side of accused.
34. No doubt, from the cross-examination of Dr. B.N.
Chalak (P.W.14) it emerges that, on the date of incident he also
examined the accused persons and found two contused lacerated
wounds and one contusion on the body of accused No.16, two
abrasions and one contusion on the body of accused No.1, one
abrasion on the body of accused No.10, contused lacerated
wound and one abrasion on the body of accused No.7, contused
lacerated wound on the body of accused No.5 as well as accused
No.6. He also found one contusion and two abrasions on the
body of accused No.12 and contused lacerated wound on the
body of accused No.2, one abrasion and one contusion on the
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
body of accused No.14 as well as one contusion on the body of
accused No.4 and contused lacerated wound and two contusions
on the body of accused No.9. Medical Officer opined that, these
injuries found on the body of accused persons are simple in
nature and possible due to stick and stone blows. However, on
comparison of these injuries with the injuries sustained by
deceased and injury sustained by Kedari (P.W.9) and other eye
witnesses. It becomes clear that injuries to accused are simple
hurt. But injuries to deceased Udhav Khande and Kedari (P.W.9)
are grievous hurt. Damage to prosecution witness is
comparatively more than damage to accused. So also,
prosecution has proved that, on the date of incident, Mohan
Khande (P.W.4) was brought by the accused persons from the
shop of Washerman up to Maruti Temple and at that spot,
assaulted him. On that count, deceased intervened and he was
assaulted along with his sons as well as other witnesses, who
tried to intervene. Thus, obviously, the accused persons were
aggressors who were armed with deadly weapons like iron bars,
sticks and stones. Even F.I.R. lodged in counter Sessions Case
No.91/1998 is not filed and proved by the defence. No defence
witness is examined by the defence to prove their contentions.
In the result, by no stretch of imagination it can be said that
prosecution has suppressed genesis of the occurrence and
accused have right of private defence. In this peculiar
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
distinguishing circumstance, the authority relied upon by defence
counsel is not applicable in the present case. Even absence of
injuries on the body of Mohan Khande (P.W.4) cannot be
doubted, because he was simply beaten by fist and kick blows,
which may not result visible injuries.
35. In view of above discussed oral evidence on record,
prosecution has proved beyond reasonable doubt that on the
date of occurrence, all the convicted accused formed unlawful
assembly and they were armed with deadly weapons like iron
bars, sticks and stones. Accused persons dragged Mohan
Khande (P.W.3) up to Maruti Temple and started beating him.
This indicates the common object of the unlawful assembly of the
convicted accused persons was to cause hurt initially to Mohan
Khande (P.W.3). However, the deceased Udhav Khande
intervened, accused persons assaulted him severely by iron bars
and sticks, which resulted into his death, due to brain injury. It
shows that, on the spot of the incident, the unlawful assembly of
the accused armed with deadly weapons developed common
object to cause death of deceased. In the circumstances,
conviction of the accused under Sections 147 and 148 of the
Indian Penal Code is certainly justified. So also, for other
offences, convicted accused can be roped together with the aid of
Section 149 of the Indian Penal Code.
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
36. Now question arises whether conviction of the
convicted accused persons for the offence punishable under
section 304 Part II read with Section 149 of the Indian Penal
Code is justified or they can be convicted for the offence
punishable under Section 302 read with Section 149 of the Indian
Penal Code. Learned A.P.P. for the State placed reliance on
Jamil Vs. State of Uttar Pradesh, reported in (2009 ALL MR
(CRI.)3736 (SC) and submitted that, considering the various
relevant factors of this case, the sentence imposed by the trial
Court deserves to be enhanced. In the alternative, contention of
the learned A.P.P. is that, accused deserve to be convicted under
section 302 read with Section 149 of the Indian Penal Code.
37. In reply, learned defence counsel pointed out that,
motive or previous enmity with the deceased is not established
by the prosecution. The incident had taken place on spur of the
moment because deceased tried to intervene. The antecedents
of the accused is not criminal and the incident occurred only on
account of internal dispute in between villagers. Learned defence
counsel submitted that, it was not the case of murder and the
sentence imposed by the trial Court cannot be termed as
disproportionate or inadequate.
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
38. In the case at hand, no doubt from the cross-
examination of son of the deceased, namely Bhartari (P.W.3), it
has been brought on record that deceased was not involved in
the village politics and his relations with the accused were
cordial. As observed above, prosecution cannot establish that
accused had any motive to kill the deceased. On the other hand,
the incident occurred on spur of moment when deceased
intervened to save Mohan Khande (P.W.4). The cause of death
of the deceased was injury to the brain due to blow of iron rod
inflicted by accused No.1. The prosecution witnesses deposed
that, accused No.1 Shriram inflicted only one single blow on the
head of deceased. The evidence available on record shows that
other accused inflicted more blows of sticks on the body of the
deceased. Even Medical Officer categorically deposed that the
head injury was sufficient to cause death. There was no
premeditation to kill the deceased as prosecution case itself is
that on spur of moment when deceased intervened, that time
accused persons assaulted him. Therefore, certainly this case
will not fall within purview of Section 300 of the Indian Penal
Code. However, it cannot be ignored that, though accused had
no intention to kill the deceased while inflicting fatal blow on the
head of the deceased by weapon like iron bar, they had certainly
knowledge that their act was likely to cause death of the
deceased. Therefore, the case of the accused certainly falls
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
under Section 304 Part II of the Indian Penal Code as held by the
learned trial Court.
39. However, considering the overall circumstances of the
case, specially the age of the deceased, and the aggressive
conduct of the accused persons, in view of law laid down by Apex
Court in "Jamil V/s State of Uttar Pradesh" (cited supra), the
punishment of three years rigorous imprisonment imposed by
trial Court for the offence punishable under Section 304 Part II
read with Section 149 of the Indian Penal Code is certainly
inadequate. On the other hand, as 60 years old unarmed person
was killed in the hands accused persons, who was only trying to
rescue his cousin, the punishment imposed by trial Court needs
to be enhanced. We hold that, rigorous imprisonment of five
years each and fine of Rs.5000/- (Rupees five thousand) each
will suffice to meet the ends of justice.
40. While imposing punishment to the accused persons
under Section 323 read with Section 149 and under Section 324
read with Section 149 of the Indian Penal Code, the learned trial
Court has considered exactly to which person simple hurt was
caused by the accused in furtherance of common object of the
unlawful assembly of the accused. Therefore, conviction of the
accused persons under Section 323 read with Section 149;
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
Section 324 read with Section 149 of the Indian Penal Code is
just, proper and needs no interference.
41. As observed above, it is also established by the
prosecution that, at the time of occurrence, in furtherance of
common object of the unlawful assembly, accused persons
voluntarily caused grievous hurt i.e. fracture of the bone of
witness Kedari Udhav Khande by using deadly weapons like
sticks and iron rod. Therefore, conviction of accused persons for
the offence punishable under Section 326 read with Section 149
of the Indian Penal Code is proper and needs no interference.
42. State has also filed appeal against acquittal of original
accused No.3 to 8, 10 to 14, 17, 19, 21, 23 to 29, 31 to 33, 37
and 41. After considering the evidence of Witness No.3 to 9 and
15, learned trial Court held that the presence of these particular
accused persons on the spot is not established by the prosecution
beyond reasonable doubt. The trial Court has discussed evidence
elaborately and assigned proper reasons for such conclusion. We
have also gone through the evidence of prosecution witnesses
and we have come to the conclusion that the view taken by
learned trial Court while acquitting these accused is not
impossible view. Therefore, the acquittal of accused No.3 to 8,
10 to 14, 17, 19, 21, 23 to 29, 31 to 33, 37 and 41 need not be
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
disturbed. It follows that, even even Criminal Appeal
No.15/2001 preferred against acquittal of these accused
deserves to be dismissed.
43. Accordingly, our conclusion is that, Criminal Appeal
No.400/2000 filed by convicted accused persons against the
judgment and order passed by trial Court, and Criminal Appeal
No.15/2001 preferred by State against the acquittal of above
referred accused persons deserve to be dismissed. However,
Criminal Appeal No.16/2001 filed by the State for enhancement
of sentence of convicted accused deserves to be allowed in the
following terms. Accused No.2 Namdeo s/o Baliram Raut died
during pendency of Appeal and his appeal is already abated. :
44. Accordingly, we pass following order :
ORDER
(i) Criminal Appeal No.400/2000 and Criminal Appeal
No.15/2001 are dismissed.
(ii) Criminal Appeal No.16/2001 is allowed.
(iii) Conviction of accused No. 1, 9, 15, 16, 18, 20, 22, 30,
34, 35 and 36 for the offence punishable under Section
304 Part II read with Section 149 of the Indian Penal
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
Code is confirmed, but sentence is modified as under :
"Accused No.1 Shriram s/o Narayan Raut, accused No.9
Radhakishan s/o Ramrao Raut, accused No.15 Mahadeo
s/o Kisan Raut, accused No.16 Gopinath s/o Ramrao
Raut, accused No.18 Jairam s/o Narayan Raut, accused
No.20 Mahadeo s/o Baliram Raut, accused No.22 Prabhu
s/o Bhaurao Raut, accused No.30 Ramnarayan s/o
Madhav Raut, accused No.34 Maroti s/o Madhav Raut,
accused No.35 Navnath s/o Sundarrao Khande and
accused No.36 Pralhad s/o Bhagwanrao Khande are
sentenced to suffer rigorous imprisonment for five years
each and to pay fine of Rs.5000/- (Rupees five
thousand) each, in default to suffer rigorous
imprisonment for six months each."
(iv) Accused No.1 Shriram s/o Narayan Raut, accused No.9
Radhakishan s/o Ramrao Raut, accused No.15 Mahadeo
s/o Kisan Raut, accused No.16 Gopinath s/o Ramrao
Raut, accused No.18 Jairam s/o Narayan Raut, accused
No.20 Mahadeo s/o Baliram Raut, accused No.22 Prabhu
s/o Bhaurao Raut, accused No.30 Ramnarayan s/o
Madhav Raut, accused No.34 Maroti s/o Madhav Raut,
accused No.35 Navnath s/o Sundarrao Khande and
accused No.36 Pralhad s/o Bhagwanrao Khande shall
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
surrender to their bail bonds before the trial Court
immediately to undergo the sentence of imprisonment.
(v) Accused No.3 Haribhau s/o Bhairuji Khande, accused
No.4 Dadarao s/o Ramnarayan Raut, accused No.5
Maruti s/o Haribhau Khande, accused No.6 Shivaji s/o
Haribhau Khande, accused No.7 Rameshwar s/o
Narayan Raut, accused No.8 Giyandeo s/o Ramrao Raut,
accused No.10 Jalindhar s/o Bajirao Raut, accused
No.11 Rama s/o Bhaurao Raut, accused No.12 Dharmraj
s/o Namdeo Raut, accused No.13 Babasaheb s/o
Kishanrao Raut, accused No.14 Bhujang s/o Deorao
Raut, accused No.17 Ashruba s/o Madhav Raut, accused
No.19 Hariram s/o Sitaram Raut, accused No.21
Navnath s/o Sheshrao Raut, accused No.23 Gangadhar
s/o Baliram Raut, accused No.24 Yadavrao s/o
Madhavrao Raut, accused No.25 Keru s/o Maroti Raut,
accused No.26 Sitaram s/o Dashrath Raut, accused
No.27 Atmaram s/o Sitaram Raut, accused No.28
Sakharam s/o Ramnarayan Raut, accused No.29 Ashok
s/o Bhujangrao Raut, accused No.31 Damodhar s/o
Baliram Raut, accused No.32 Raykoba s/o Limbaji Raut,
accused No.33 Santram s/o Ramnarayan Raut, accused
No.37 Rajaram s/o Shivnarayan Raut and accused No.41
Satish s/o Raosaheb Raut shall execute before the trial
Criminal Appeal No.400/2000 with
Cri.Appeal No.16/2001 & 15/2001
Court bail bonds with sureties for the amount o
Rs.10,000/- (Rupees ten thousand) each to appear
before the Supreme Court as and when notices are
issued to them in respect of any proceedings filed
against this judgment vide Section 437-A of the Code of
Criminal Procedure and the said bail bonds shall remain
in force for a period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
