Bombay High Court
Gangadhar Waghji Shinde & Ors vs The State Of Mah on 21 December, 2017
Bench: T.V. Nalawade
Cri.Appeal 722/2002
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 722 OF 2002
1. Gangadhar s/o Waghji Shinde,
Age 25 years, Occu. Agri.,
2. Shivaji s/o Waghji Shinde,
Age 22 years, Occu. Agri.,
3. Nilkant s/o Maroti Shinde,
Age 20 years, Occu. Agri.,
4. Maroti s/o Namdeo Shinde,
Age 38 years, Occu. Agri.,
5. Raghunath s/o Namdeo Shinde
Age 46 years, Occu. Agri.,
6. Waghji s/o Vithalrao Patil,
Age 65 years, Occu. Agri.,
All r/o Dhosni, Taluka Degloor,
(All presently in jail) .. Appellants
Versus
. The State of Maharashtra .. Respondent
Mr Hemantkumar Pawar, Advocate for appellants
Mr R.V. Dasalkar, A.P.P. for respondent
- WITH -
CRIMINAL APPEAL NO. 728 OF 2002
1. Maroti Waghoji Panchare,
Age 30 years, Occu. Agri.,
[2] Permeshwar Waghoji Panchare, }Appeal abated against
Age 25 years, Occu. Agri., }Resp.nos.2 and 3 as per
}Court's order dated
[3] Vishwanath Waghoji Panchare, }17.11.2017
Age 22 years, Occu. Agri.,
R/o Dhosni, Taluka Degloor,
District Nanded .. Appellants
Versus
. The State of Maharashtra .. Respondent
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Cri.Appeal 722/2002
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Mr S.M. Kulkarni, Advocate for appellants
Mr R.V. Dasalkar, A.P.P. for respondent
Appeal abated as against respondent nos.2 and 3 as per Court's
order dated 17.11.2017
- WITH -
CRIMINAL APPEAL NO. 195 OF 2003
The State of Maharashtra
through P.S. Degloor,
At the instance of Dilip
s/o Nivrutti Waddekar,
r/o Dhosni, Taluka Degloor
District Nanded ..Appellant
- Versus -
1. Gangadhar s/o Waghji Shinde,
Age 25 years, Occu. Agri.,
2. Shivaji s/o Waghji Shinde,
Age 22 years, Occu. Agri.,
3. Nilkant s/o Maroti Shinde,
Age 20 years, Occu. Agri.,
4. Maroti s/o Namdeo Shinde,
Age 38 years, Occu. Agri.,
5. Raghunath s/o Namdeo Shinde
Age 46 years, Occu. Agri.,
6. Waghji s/o Vithalrao Patil,
Age 46 years, Occu. Agri.,
7. Maroti Waghoji Panchare
Age 30 years, Occu. Agri.,
[8] Permeshwar Waghoji Panchare } Appeal abated against
Age 25 years, Occu. Agri., } R.Nos.8 & 9 as per
} Court's order dated
[9] Vishwanath Waghoji Panchare, } 17.11.2017
Age 22 years, Occu. Agri., }
All r/o Dhosni, Taluka Degloor,
District Nanded .. Appellants
Versus
. The State of Maharashtra .. Respondent
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Cri.Appeal 722/2002
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Mr R.V. Dasalkar, A.P.P. for appellants
Mr Hemantkumar Pawar, Advocate for respondents no.1 to 6
Mr S.M. Kulkarni, Advocate for respondents no.7
Appeal abated against respondent nos.8 and 9 as per Court's
order dated 17.11.2017
CORAM : T.V. NALAWADE AND
A.M. DHAVALE, JJ
DATE OF RESERVING
THE JUDGMENT : 8.12.2017
DATE OF PRONOUNCING
THE JUDGMENT : 21.12.2017
JUDGMENT (Per A.M. Dhavale, J.)
1. These appeal arises out of a common judgment in Sessions
Case No.19/2001 delivered by the learned Additional Sessions Judge,
Biloli on 12.12.2002 whereby all the nine accused were convicted and
sentenced as follows :
Section Sentence Fine In default
148 IPC R.I. one year Rs.1,000/- each R.I. for 15 days
326 r/w 149 IPC R.I. five years Rs.1,500/- each R.I.for 1 month
435 r/w 149 IPC R.I. one month Rs.1,000/- each R.I. for 1 month
The accused were acquitted of main charge under Section 302
read with Sec. 149 of Indian Penal Code.
2. The aggrieved accused nos.1 to 6 have preferred Criminal
Appeal No.722 of 2002 against conviction. Aggrieved accused nos.7
to 9 have preferred Criminal Appeal No.728 of 2002 against their
conviction and the State has preferred Criminal Appeal No. 195 of
2003 against acquittal under Section 302 read with Sec.149 of Indian
Penal Code.
Cri.Appeal 722/2002
3. During the pendency of the appeal against accused no.8
Parmeshwar and accused no.9 Vishwanath have died and their appeal
stood abated.
4. The facts relevant for deciding these appeals may be stated as
follows :
P.W.4 Deelip aged 28 years is son of the deceased Nivrutti and
the informant. On 19.10.2000 at 7.50 p.m., he lodged F.I.R. Exh.45 at
Degloor Police Station in writing. The F.I.R. shows that his father was
cultivating land of one Bhaurao Krushnaji from Dhosni on crop sharing
basis and there was land dispute over 20 years between Bhaurao
Krushnaji and Maruti Waghji (A-7). On that day at 4.00 p.m., his father
was ploughing the said land by using tractor of Yasin Shaikh. That
time, Maroti Waghji (A-7), Vishwanath Waghoji (A-9), Parmeshwar
Waghoji (A-8), Raghunath Shinde (A-5), Maroti Shinde (A-4), Neelkanth
(A-3), Vitthal (A-6), Gangadhar (A-1) and Shivaji (A-2) came there
armed with weapons axe and kattis. They assaulted his father,
inflicted blow of kattis and axe on his father's legs and ribs and killed
him. Besides, they had set on fire the tractor brought for ploughing
operations. He was witness to the incident. Hanmant Shinde, tractor
owner Yasin and one Hanmant from Kalegaon and Gopal had
witnessed the incident, while Bhaskar had witnessed the accused
running away from the spot. On the basis of F.I.R., crime was
registered at C.R. No.118/2000 for the offences punishable under
Sections 302, 147, 148, 435, 427 r/w 149 of Indian Penal Code and
was investigated into by P.W.8 P.I. He drew spot panchnama, inquest
panchnama, He got the post mortem done on the dead body and
Cri.Appeal 722/2002
recorded statements of material witnesses. He seized weapon Katti
from Raghunath (A-5) and the clothes of the deceased. He forwarded
the seized articles to Chemical Analyst. After completion of
investigation, charge-sheet was submitted in the Court of Judicial
Magistrate, First Class.
5. In due course, the case was committed to the Court of
Additional Sessions Judge, Biloli. Learned Additional Sessions Judge,
Biloli initially framed charge against six accused persons and later
against three accused persons for offences punishable under Sections
143, 147, 148, 302, 427, 435 read with Sec.149 of Indian Penal Code.
The accused pleaded not guilty. The prosecution examined eight
witnesses. Defence of the accused is of total denial. The learned trial
Judge accepted the prosecution case partly and convicted the accused
and sentenced them as referred above. Hence, these appeals.
6. Learned Advocate Mr Pawar for accused nos.1 to 6 (Cri.Appeal
No.722/2002) argued that the evidence of informant Deelip (P.W.4) is
totally improbable. It is not possible to accept that when his father
was being killed, he was a silent spectator. He also argued that as per
the post mortem notes, the deceased could not have met with an
instant death and in that case after the incident was over, P.W.4
Deelip could have taken his father for medical aid, but there is no
such evidence. Even during the entire night, Deelip did not halt in the
field when his father's body was lying there. He argued that the
recovery of one katti from accused no.5 is meaningless, as it was
recovered after two years from the incident. The spot panchnama
shows that there was no tractor. There is delay of four hours in
Cri.Appeal 722/2002
lodging the F.I.R. The conduct of P.W.4 Deelip and P.W.5 Prakash is
not proper. There is old enmity. There are only three injuries,
whereas nine persons are implicated. Evidence of the prosecution
witnesses is not trustworthy and reliable. Therefore, it should be
discarded.
7. Learned Advocate Mr Kulkarni for appellants in Criminal Appeal
No.728 of 2002 (accused no.7) has adopted the arguments of learned
Advocate Mr Pawar and submitted that the evidence against the
accused no.7 is vague. There cannot have been only three injuries
when the attack was by nine persons. Accused no.7 has undergone
the sentence.
8. Per contra, learned A.P.P. Mr Dasalkar supported the judgment
and argued that there was land dispute. The incident was witnessed
by son of the accused and P.W.5 had supported him. The medical
certificate shows that deceased sustained three incised wounds and
one fracture. The medical evidence is consistent with the oral
evidence about assault by axe and katti. Accused no.5 has recovered
one Katti. The prosecution evidence should be relied and the appeal
of the State should be allowed and all the accused should be
convicted under Section 302 read with Sec.149, Section 147, 148 and
435 read with Sec.149 of Indian Penal Code.
9. The point for our consideration with our findings is as follows:
(I) Whether deceased Nivrutti met
with homicidal death ? .. In the affirmative
Cri.Appeal 722/2002
(II) Whether accused nos.1 to 9 by
formed an unlawful assembly
with a common object to commit
murder of Nivrutti and
used criminal force? .. In the negative
(III) Whether accused nos.1 to 9 while
being members of an unlawful
assembly were armed with deadly
weapons and thereby committed
offence under Section 148 of IPC ? .. Not proved
(IV) Whether accused nos.1 to 9 by
forming an unlawful assembly
with a common object committed
murder of deceased Nivrutti ? .. Not proved
(V) Whether accused nos.1 to 9 by
forming an unlawful assembly
with a common object committed
mischief by fire to destroy a
tractor worth Rs.2,90,000/- ? .. Not proved
(II) What order ? .. Appeal filed by the
State (Cri.Appeal
No.195 of 2003 is
dismissed and Cri.
Appeals No.722 and
728 of 2002 filed by
the accused are allowed
- REASONS -
10. Evidence of eye witnesses disclose that deceased Nivrutti had
sustained three incised wounds and one fracture. There is also
Cri.Appeal 722/2002
inquest panchnama Exh.31 proved by P.W.1 Atmaram. The material
evidence regarding homicide is of P.W.3 Dr. Janardhan Bhume. He
has conducted post mortem on 20.10.2000 on the dead body of
Nivrutti and noticed following injuries :
1. Incised wound on left buttock just below iliac crest,
posterior side, size 10 x 2 x 5 cm horizontal in direction,
with sharp edges tapering from medial to later side. It was
bone deep.
2. Incised wound on left thigh posteriorly just above
knee. It was bone deep muscles were exposed and cut,
edges were sharp and tapering from medial to lateral side,
horizontal and just oblique in direction towards knee. Size
10 x 4 x 8 cm
3. Fracture of underlying femur bone was palpable and
the fracture was horizontal showing unwashable small
hemorrhage at its irregular edges. Size of fracture was 4 x
4 cm
4. Incised wound on right leg laterally 10 x 2 x 10 cm
depth crossing towards foot obliquely. Edges were sharp
tampering towards lateral side from medial end.
11. All the three incised wound were showing signs of inflammation,
i.e. they were red, blood clots were seen at the edges and at the
depth. All the injuries were ante mortem. Those were possible by
sharp weapon like axe. He opined that the deceased died due to
"cardio-respiratory arrest due to hemorrhagic shock due to multiple
injuries with fracture of left femur bone." The viscera report shows
that it was not a case of poisoning. He, therefore, confirmed his
Cri.Appeal 722/2002
opinion. Hence, on the evidence, we hold that it was a case of
homicidal death.
12. Prosecution has examined following witnesses :
(I) Eye witnesses :
P.W.4 informant Deelip (F.I.R. Exh.45) } Eye witnesses
P.W.5 Prakash }
(II) Medical evidence :
P.W.3 Dr. Bhume Post mortem notes Exh.41
P.W.1 Atmaram Inquest panchnama Exh.31
(3) Other circumstantial evidence :
Panchas P.W.1 Atmaram (Spot Panchnama Exh.32)
Seizure of clothes of deceased (Exh.33)
P.W.2 Hanmant - discovery of Katti by accused no.5
Raghunath. Memorandum Exh.38, Panchnama Exh.39
(His evidence regarding memorandum of accused no.5
is not as per Section 27 of Evidence Act. He did not
state that accused no.5 Raghunath stated that he was
ready to discover the weapon of offence Katti from a
particular place. His evidence regarding recovery of
Katti by accused no.5 Raghunath from garbage, is
admissible as res gestae but no blood was found on the
same. There is no evidence that it was weapon of offence.
Cri.Appeal 722/2002
13. P.W.6 Ganesh, panch to recovery of weapons jointly by accused
no.4 Maruti and accused no.9 Vishwanath. His evidence about
statement given by the accused is not as contemplated under Section
27 of the Evidence Act, but has stated that the accused led him and
the Police to their house and Maruti produced one axe and then
seizure panchnama Exh.50 was drawn. He also deposed that accused
Vishwanath and Parmeshwar had shown willingness to discover
weapons concealed in the house. Then they led the panchas and the
police to their house and two Kattis were recovered. Those were
washed and wiped. The seizure panchnama is at Exh.51 and weapons
discovered are articles 1 to 3.
14. P.W.7 is Shravan Shinde. He stated that three accused were
absconding. He learnt that they were in Andhra Pradesh. He went
there and arrested them. He is also witness to the discovery of axe
and Kattis from the accused later arrested (Memorandum and seizure
panchnama Exhs.50 and 51). P.W.8 P.S.I. Chavan is the Investigating
Officer.
15. It is defence of the accused-appellants that due to criminal
cases amongst the parties, the appellants are implicated. Admittedly,
there was criminal cases against each other. The land dispute was
decided in favour of the accused and certified copy of the said order
of Secretary State Government dated 22.1.1998 is filed on record. The
second appeal preferred by Bhaurao was partly allowed only to the
extent of monetary claim and decree for specific performance was
rejected on 17.1.1996. The certified copy of the judgment of High
Court is filed on record.
Cri.Appeal 722/2002
16. Thus, there is evidence of enmity. After going through the
evidence of Medical Officer and the injuries shown by him in the post
mortem notes, we agree that though it was a case of homicidal death,
it was not an assault with intention to commit murder. There are
three injuries with one fracture. The incised wounds were found on
buttock, thigh and right leg. When several persons assault any person
with deadly weapon with intention to commit murder, then the person
assaulting will select the vital part like chest, neck, head for assault
and not buttock, thigh and leg. It seems that the injuries caused were
not sufficient in ordinary course of nature to cause death. There is no
certificate to that effect, but those injuries caused profuse bleeding
which resulted into death.
17. It is obvious that the prosecution solely relied on the evidence
of P.W.4 Deelip and P.W.5 Prakash to show the involvement of
accused persons.
18. As far as the recoveries are concerned, evidence of panchas as
well as Investigating Officer is not at all satisfactory. It is necessary
that the prosecutor should be trained as to how to record the
evidence regarding discovery of weapons.
19. Learned trial Judge relied on the evidence of P.W.4 Deelip and
P.W.5 Prakash to hold that all the accused in prosecution of common
object of the assembly inflicted the injuries sustained by deceased
Nivrutti and there were witnesses to the incident. Since there was a
land dispute, the assault by them was also probable. The non-
examination of material witnesses was not held significant. The
Cri.Appeal 722/2002
learned trial Judge rightly held that besides the oral evidence of P.W.4
Deelip and P.W.5 Prakash, there is no other supporting evidence
credible and trustworthy.
20. After going through the evidence of P.W.4 Deelip and P.W.5
Prakash, we find that their evidence also is not trustworthy and
reliable.
21. As per P.W.4 Deelip, on 19.10.2000, at about 4.00 p.m., his
father was ploughing land of Bhaurao Krushnaji by means of a tractor.
That time, all the accused came there from crops of pulse-Tur. They
accosted him, why he was ploughing the land and they assaulted him
by means of axe and katti on leg, back and buttock. His father raised
shouts. While he was proceeding towards his father, Hanmant told
him not to go as he was also likely to be assaulted. He stated that his
father expired on the spot. The accused persons took out diesel from
the tank of the tractor and accused no.4 Maruti set it on fire and
thereafter he went to the police station and lodged F.I.R. Exh.45.
22. P.W.5 Prakash has stated that on the material day and time,
while he was returning from his land, he saw deceased Nivrutti
carrying out ploughing operations and his son present in the land of
Bhaurao. Nivrutti was cultivating the land on batai basis. He stated
that nine accused persons came there and all of a sudden assaulted
Nivrutti and to him. Accused Maruti and Vishwanath were armed with
Katti and Parmeshwar was holding an axe. Raghunath was holding
katti and remaining accused were armed with sticks. He stated that
P.W.4 Deelip was proceeding to intervene but he was not allowed to go
Cri.Appeal 722/2002
as he was also likely to be assaulted. Then Nivrutti fell down and all the
accused persons went towards tractor. The tractor driver ran away.
Accused no.4 Maruti poured diesel on the tractor and set it on fire.
23. It is obvious that deceased Nivrutti died due to profuse
bleeding. He has not received any injury on the vital part. There was
no damage to the brain and lungs. If profuse bleeding was a cause, it
is obvious that deceased Nivrutti could not have died instantly on the
spot. He would have survived for sufficiently long time and if P.W.4
Deelip and P.W.5 Prakash were eye witnesses, they would have
provided medical aid to him, but evidence of P.W.4 Deelip and P.W.5
Prakash is contrary to this situation.
24. Besides, P.W.4 Deelip and P.W.5 Prakash have deposed that
there was assault by nine persons, whereas there are only three
injuries (incised wounds) on the person of deceased, which can be by
sharp weapon. Axe is sharp weapon, but katti will not be sharp
weapon. Considering the size of all the three injuries (1) 10 X 2 X 5
cm; (2) 10 x 2 x 8 cm; (3) 10 x 2 x 10, it appears that all the injuries
were caused by only one type of weapon. It is certain that these
injuries could have been caused by maximum three persons and not
by nine persons. Since only three injuries are disclosed, it is not
possible to accept the evidence of P.W.4 Deelip and P.W.5 Prakash
that the assault was committed by nine persons.
25. The post mortem report shows that only 20 ml. of greenish
yelow liquid with no food was found in the stomach. It seems that the
deceased had merely taken morning tea and had gone to the field and
Cri.Appeal 722/2002
thereafter at some time within four to five hours, he must have died.
The evidence of Medical Officer does not show whether main arteries
of Nivrutti were cut or not. He admitted that if the main artery is not
cut, the deceased could have survived for six hours. In any case, the
deceased would have survived for some hours. There were eye
witnesses to the incident. They would have immediately taken
Nivrutti to provide medical treatment, but since he was found in the
field itself, there was no eye witness to the assault on the deceased.
26. Pertinently, P.W.4 Deelip who was in shock and grief has lodged
written report at the police station
27. There is no corroborative evidence in the form of recovery of
blood stained clothes of the accused or recovery of blood stained
weapons from the accused. The evidence regarding recovery is not
reliable and there is no Chemical Analyst's report showing blood on
the weapons.
28. The evidence of two eye witnesses P.W.4 Deelip and P.W.5
Prakash cannot be believed for the reasons stated above. Hence, the
judgment of conviction under any offence is not sustainable. In the
result, the State appeal deserves to be dismissed, while appeals filed
by the accused deserve to be allowed. We accordingly answer points
formulated by us and pass the following order :
- ORDER -
(I) Criminal Appeal Nos.722 of 2002 and 728 of 2002 are allowed.
(II) The conviction and sentence of all the accused, passed by
learned Additional Sessions Judge, Biloli vide judgment dated
Cri.Appeal 722/2002
12.12.2002 in Sessions Case No.19 of 2001 is hereby set aside. All
the accused are acquitted of all the charges. Their bail bonds stand
cancelled. Fine, if deposited be refunded to them.
(III) Criminal Appeal No.195 of 2003 filed by the State stands
dismissed.
(IV) The muddemal shall be preserved till the appeal period is not
over.
( A.M. DHAVALE, J.) ( T.V. NALAWADE, J.)
vvr
