started on Sunil Patil and then as per the instructions of police,
Devendra returned back to the police station and he gave report. On
the basis of his report, the crime came to be registered at C.R. No.
208/1998 for the offences punishable under sections 307, 324 r/w.
149, 323, 504 etc. of IPC and section 4 r/w. 25 of Arms Act. Sunil
Patil succumbed to the injuries, but after few days and he died due
to the head injury which was allegedly caused by accused no. 1 Anil
Sonawane.
7) The statements of eye witnesses came to be recorded.
The spot panchanama was prepared and after the death of Sunil
Patil, inquest was prepared and P.M. was conducted on the dead
body. The weapon was recovered and the articles were sent to C.A.
office. After completion of investigation, chargesheet came to be
filed against seven accused for aforesaid offences. Charge was
framed for aforesaid offences. All the accused pleaded not guilty.
Prosecution examined in all 12 witnesses to prove the offences. The
defence of total denial was taken by all the accused. Prosecution
relied on direct and circumstantial evidence. The Trial Court has
believed the injured witness and in view of the role attributed to
accused No. 1, 2 and 4 and as their names were mentioned in the
F.I.R., they are convicted and the benefit of doubt is given to the
remaining accused persons. The Trial Court has held that there was
Cri. Appeal No.369/01 & Ors.
no intention to finish Sunil Patil.
8) Devendra (PW 3), first informant has given evidence that
on that day, he and Sunil Patil had visited the place of Arun Shirsale
as it was the day of Diwali Padwa. He has deposed that Arun had
asked them to make some purchases for him and so, they had left
the place in Armada jeep of Arun Shirsale and at the relevant time,
they were returning from market in the said vehicle of Arun Shirsale.
He has deposed that at the place of incident, their vehicle was
intercepted by accused No. 1 Anil Sonawane and at that time, he
was holding wooden log.
9) Devendra (PW 3) has given evidence that after the
interception of vehicle, he and Sunil Patil got down from the vehicle
and they questioned accused No. 1 as to why Anil was giving abuses
to them. He has given evidence that immediately, other accused
came forward and they started assaulting both Sunil Patil and
Devendra. He has given evidence that in the incident accused No. 1
Anil Sonawane gave blow of wooden log on the head of Sunil Patil,
accused No. 4 Nitin gave blow of sword which Sunil Patil took on his
hands and accused No. 2 Sunil Sonawane gave blow of knife which
hit the neck of Sunil Patil. He has given evidence that other accused
like accused Nos. 3, 5, 6 and 7 assaulted both him and Sunil Patil by
Cri. Appeal No.369/01 & Ors.
using Asaris. He has given specific evidence against accused No. 2
that he had given blow of knife to him and that blow had hit his
waist.
10) Devendra (PW 3) has given evidence that when the
incident was going on, Arun Shirsale rushed towards the spot with
his two men. He has given evidence that two more persons like
Ramesh Patil and Anil Bhatkar had also rushed to the spot and after
seeing all these persons, all the accused ran away by using their
Maruti car.
11) Devendra (PW 3) has given evidence that Arun Shirsale
then took him and Sunil Patil first to police station and then they
were taken to Civil Hospital, Jalgaon. He has given evidence that he
then gave report to police, which is at Exh. 80. Devendra (PW 3)
identified all the accused in the Court during evidence. His evidence
shows that he knew all the accused on the day of incident as they
were persons of rival group, but he had taken the names of accused
Nos. 1, 2 and 4 only in the F.I.R. and this omission is proved.
12) In the cross examination of Devendra (PW 8), he has
admitted that he has been friend of Arun Shirsale from his childhood
and he used to visit the house of Arun Shirsale almost every day. His
Cri. Appeal No.369/01 & Ors.
evidence and other evidence shows that at the relevant time, Arun
Shirsale was councillor and his brother Arjun was also councillor. The
evidence of Devendra shows that he used to do any work assigned
to him by Arun Shirsale. He has admitted that deceased Sunil Patil
was civil contractor and he used to take work of Jalgaon Municipalty.
He has admitted that those civil works were obtained by Arun
Shirsale, but he was taking the work in the name of Sunil Patil and
Sunil Patil was working as his man. He has admitted that against
him, Sunil Patil and Arun Shirsale, criminal cases were filed like
1/94, RCC No. 59/94 and there were some F.I.Rs. filed against them
in the past. Thus, his evidence shows that he and deceased Sunil
Patil were active workers in the politics and also in the personal life
of Arun Shirsale. These circumstances need to be kept in mind as
there was severe political rivalry between two groups and the
witnesses examined by the prosecution are only interested
witnesses.
13) Devendra (PW 3) is cross examined to bring on record
the distance between the place of market and the place of Arun
Shirsale. Unfortunately, the investigating agency did not prepare the
map of scene of offence and the investigating agency did not show
the distance between the spot of offence and the place of Arun
Shirsale even when prosecution wanted to prove that Arun Shirsale
Cri. Appeal No.369/01 & Ors.
rushed to the spot after learning about the quarrel. It can be said
that if quarrel was over within five minutes, it was not possible for
Arun Shirsale to witness the actual incident of assault.
14) In the cross examination of Devendra (PW 3), it is
brought on the record that after the incident, Sunil Patil was kept in
vehicle and he and Sunil Patil were taken to police station. His
evidence shows that he did not give the details of incident and it was
only informed that Sunil Patil was unconscious and then they were
referred to Civil Hospital Jalgaon. His evidence shows that he did not
give F.I.R. immediately after reaching the police station and he came
back from Civil Hospital only when police officer directed him to go
to police station from Civil Hospital for giving report. His evidence
shows that Sunil Patil was not in a position to speak. This
circumstance is not seriously disputed.
15) Cross examination of Devendra (PW 3) shows that the
incident was over within 5-7 minutes. He has tried to say that not
many persons had gathered on the spot when Arun Shirsale arrived
to the spot. His evidence shows that Sunil was already lying on the
ground when Arun Shirsale reached the spot. Here again it needs to
be mentioned that the map of scene of offence would have shown as
to whether the persons in the vicinity would have immediately
Cri. Appeal No.369/01 & Ors.
gathered on the spot after starting of the incident. One person who
is examined as eye witness has deposed that he was present with
his Tanga on he spot. The other person has deposed that he was
present on the spot with his auto-rickshaw as there was stop for
auto-rickhaw. These things could have been mentioned in the map
of scene of offence.
16) In the cross examination, Devendra (PW 3) has
reiterated that the blow of wooden log was given by accused No. 1
Anil Sonawane , accused No. 2 Sunil used knife and accused No. 4
Nitin used sword. In the cross examination, Devendra has tried to
say that many blows of iron rods were given to him and deceased,
but the number of injuries found on the persons of first informant
and the deceased do not corroborate this evidence.
17) Some omissions and some inconsistencies in relation to
F.I.R. given by Devendra (PW 3) are brought on the record. In F.I.R.,
he had not mentioned that accused Nilesh had taken part in the
assault. Even the names of remaining accused were not mentioned
in the F.I.R. and this circumstance shows that they had kept open
the possibility of involvement of some persons of rival group and
that is why it was mentioned that in all seven persons had attacked
them even when the names of all the accused were known to first
Cri. Appeal No.369/01 & Ors.
informant and also to other witnesses. There are some other minor
inconsistencies with regard to as to who gave first blow but that
need not be considered. Devendra (PW 3) is an injured witness and
his evidence is convincing and due to corroboration of other
circumstances and contents of F.I.R. there is no need to discuss the
other minor inconsistencies in relation to F.I.R. Thus, the F.I.R. at
Exh. 80 is consistent on material points so far as the evidence given
as against accused Nos. 1, 2 and 4 is concerned.
18) In the cross examination of Devendra (PW 3), evidence
on motive, political rivalry is brought on the record and the witness
has admitted that there was previous enmity between these two
groups. Due to these circumstances, there is no need to discuss the
history of political dispute between the two parties in detail. The
F.I.R. at Exh. 80 was given almost immediately after the incident
and the crime was registered at 11.30 a.m. and so, necessary
weight needs to be given so far as evidence given as against
accused Nos. 1, 2 and 4 is concerned. It gives corroboration under
section 157 of the Evidence to that extent to the version of
Devendra (PW 3).
19) Javed Shaikh (PW 4) is owner of Tanga and he has given
evidence that by chance, he was present at the place of incident at
Cri. Appeal No.369/01 & Ors.
the relevant time. He has given similar evidence as against accused
Nos. 1, 2 and 4 and their active participation in the incident. He has
given evidence as against other accused also. His name was not
mentioned in the F.I.R. He has tried to exaggerate the things by
saying that accused Ashwin had used the sword when it is not the
case of even injured witness Devendra (PW 3).
20) In the cross examination, Javed Shaikh (PW 4) has
admitted that prior to giving evidence, he was kept by Arun Shirsale
in his house for few days. He admits that he was in touch with men
of Arun Shirsale. He is interested witness and there is no
circumstantial check to his evidence.
21) Gulab Borse (PW 5) is rickshaw driver. He has given
evidence that by chance, he was present in the vicinity of the spot of
incident. His evidence is vague and he has tried to say that all the
accused had given beating to Sunil Patil and the first informant. He
has described the weapons and he has also exaggerated the things
by saying that even accused Ashwin was holding sword. The
evidence of Gulab (PW 5) shows that he is also interested witness.
His name was not given in the F.I.R. He has tried to say that many
persons had gathered on the spot at the time of incident, which is
not the case of Devendra (PW 3). There is no circumstantial check to
Cri. Appeal No.369/01 & Ors.
the evidence of Gulab (PW 5). Due to these circumstances, not much
weight can be given to the evidence of Javed Shaikh (PW 4) and
Gulab (PW 5).
22) Arun Shirsale (PW 6), the leader of the group of first
informant has given evidence that he had sent the first informant
and the deceased in his vehicle for making some purchases. He has
given evidence that at about 10.15 a.m. one Sanjay Shinde and
Dublya Karosia came to him and informed that quarrel had started
at the aforesaid place. He has given evidence that after learning
about the quarrel, he rushed to the spot with his two men. Arun
Shirsale (PW 6) has given evidence that when he was running
towards the spot, he noticed that accused No. 1 Anil Sonawane was
giving blow of wooden log on the head of Sunil Patil, accused No. 4
Nitin Sonawane was giving blow of sword and accused No. 2 Sunil
Sonawane was giving blow of knife. He has given evidence that he
also saw that when Devendra tried to intervene, he was also
attacked. He has given evidence that when the assailants saw that
he was rushing towards the spot, they ran away. He has given
evidence that he then shifted the first informant and Sunil Patil first
to the police station and from there to Civil Hospital. He has
admitted that both Sunil Patil and first informant were his workers in
politics at the relevant time, though he has denied that he was
Cri. Appeal No.369/01 & Ors.
taking civil works of Local Body in the name of Sunil Patil.
23) In the police statement, Arun Shirsale (PW 6) has not
stated that he could see the incident when he was running towards
the spot. It is already mentioned that the incident was over within 5-
7 minutes. Due to the circumstances already mentioned, absence of
map of scene of offence and time which must have been taken by
the persons for going to the place of Arun (PW 6) for informing
about the incident and then the time taken by Arun (PW 6) for
reaching the spot of offence, it does not look probable that he could
have witnessed the actual incident of assault. His evidence shows
that he had entered the police station when he took the first
informant and the deceased to police station. If he had really
witnessed the incident, he would have himself given the F.I.R., but
that did not happen. Due to these circumstances, this Court holds
that not much weight can be given to the evidence of Arun Shirsale
(PW 6). Many omissions including the omissions in respect of actual
part played by Ashwin and others are brought on the record in the
evidence of Arun (PW 6) in relation to his previous statement. In his
evidence, defence has brought on the record that from his
forefathers, they are in politics and there is political rivalry between
his group and the group of accused.
Cri. Appeal No.369/01 & Ors.
24) Ramesh Patil (PW 7) has given evidence that on that day,
he had also gone to a place to do the work assigned by Arun
Shirsale and he and Anil Bhatkar were returning to the place of Arun
Shirsale and at that time, they saw the crowd and they stopped
there and they witnessed the incident. It can be said that if Ramesh
Patil (PW 7) and Bhatkar had reached the spot of incident, they
would have certainly intervened in the incident as the two persons
who were being assaulted were men of their group. This did not
happen. There is no circumstantial check to the evidence of Ramesh
Patil (PW 7) and so, not much weight can be given to the evidence of
Ramesh Patil.
25) Dr. Sayyed (PW 8) is the medical officer from Civil
Hospital, Jalgaon. He examined Sunil Patil at 11.40 a.m. He has
given evidence that the condition of Sunil Patil was very poor. His
evidence shows that history of assault was given and he found
following injuries on the person of Sunil Patil.
"(i) Incised wound of size 1ʺx1/2ʺx1/4 ʺ on left lower side
of cheek, of simple nature, which was caused by hard and
sharp object.
(ii) Incised wound 1/2ʺx1/4ʺx1/4ʺ on left ring finger
simple, caused by hard and sharp object.
(iii) Abrasion 1cm x 1cm on right side of the forehead
Cri. Appeal No.369/01 & Ors.
simple in nature, caused by hard and blunt object.
(iv) Contusion of size 3ʺx2ʺ behind the left ear and upper
part of neck on left side, of simple nature, caused by hard
and blunt object.
(v) Linear abrasion 1 c.m. in length on left mandibulor
angle, simple in nature, caused by hard and blunt object."
26) The evidence of Dr. Sayyed (PW 8) shows that the
aforesaid injuries were sustained within six hours, they were fresh.
The injuries described show that incised wounds were not that
serious due to the place and size of injuries. The evidence of this
witness shows that due to the head injury, injury No. 4, he advised
C.T. Scan of Sunil Patil. It is not disputed that Sunil Patil was
unconscious at that time.
27) Dr. Sayyed (PW 8) has given evidence that at 12.30 p.m.
Sunil Patil was again brought to Civil Hospital (after the second
incident). He has given evidence that he noticed that there were
more injuries and there was history of second assault on Sunil Patil.
He has given evidence that he found following eight more injuries on
the person of Sunil Patil.
"(i) Incised wound 12ʺ x 3ʺx bone deep on left upper arm
of simple nature, caused by hard and sharp object.
Cri. Appeal No.369/01 & Ors.
(ii) Incised wound 2x1/2ʺx 1/4ʺ left elbow JT of simple
nature, caused by hard and sharp object.
(iii) Incised wound 1/2ʺx1/2ʺx 1/2ʺ on left side of chest
below umedial to left nipple, of simple nature, caused by
hard and sharp object.
(iv) Incised wound 3½ʺ x 1ʺ x 1ʺ on right scapula of
simple nature caused by hard and sharp object.
(v) Incised wound 4ʺx 1ʺ x 1ʺ interscapular region of
simple nature, caused by hard and sharp object.
(vi) Incised wound 6ʺ x 1ʺ x 1ʺ infrascuplar region, of
simple nature, caused by hard and sharp object.
(vii) Incised wound 1ʺ x ½ʺ x 1/4ʺ on right little finger
middle phalynx of simple nature caused by hard hand sharp
object.
(viii) Abrasions multiple 2ʺ x 2ʺ on left elbow joint simple
nature, caused by hard and blunt object."
28) The evidence of Dr. Sayyed (PW 8) shows that the new
injuries were also fresh, caused within six hours. He has given
evidence that C.T. scan was done on 22.10.1998 and Sunil Patil was
kept in Civil Hospital from 21.10.1998 to 22.10.1998. He has given
evidence that after C.T. scan, it was noticed that there was fracture
of left temporal bone and there was extensive extradural hamatoma
Cri. Appeal No.369/01 & Ors.
due to injury No. 4 notice on first occasion. Evidence of Dr. Sayyed
(PW 8) shows that he prepared single certificate, Exh. 89, in respect
of injuries noticed by him on the person of Sunil Patil on two
occasions on 21.10.1998.
29) Dr. Sayyed (PW 8) conducted P.M. examination on the
dead body of Sunil Patil on 26.10.1998. The evidence of prosecution
shows that on 22.10.1998 Sunil Patil was shifted to private hospital
for treatment. Operation was performed on him on head injury. But,
he died on 26.10.1998. Dr. Sayyed (PW 8) found following 15
injuries when he conducted the P.M. examination.
"(i) Sutured wound 1ʺ in length below left lower side of
cheek and abrasion.
(ii) Sutured wound 1ʺ in length on left ring finger.
(iii) Abrasion with scab formation right side of forehead 1
cm x 1 c.m.
(iv) Contusion 5ʺx4ʺ behind left ear, extending below the
neck.
(v) Linear abrasion and scab formation on left
mandibuler angle.
(vi) Sutured wound 12ʺ in length left upper arm anteriorly.
(vii) Sutured wound 2ʺ in length on left elbow joint.
(viii) Sutured wound 1½ʺ in length on left side of chest
Cri. Appeal No.369/01 & Ors.
below and medial to left nipple.
(ix) Sutured wound 3½ʺ in length on right scapulax.
(x) Sutured wound 4ʺ in length interscapular region.
(xi) Sutured wound 6ʺ in length interscapular region.
(xii) Sutured wound 1ʺ in length middel phalynx of right
little finger.
(xiii) Sutured wound 1½ʺ in length on left leg above
medical mallelous.
(xiv) Multiple abrasions with scab formation left elbow.
(xv) Sutured wound 14ʺ in length left parietal.
These all injuries were ante mortem."
30) Dr. Sayyed (PW 8) found internal injuries like hametoma
at both frontal regions, fracture of left temporal parietal base and he
also noticed operation performed on the head injury. There were
blood clots on the temporal region and he has given evidence that
the death took place due to intracranial haemorrhage due to fracture
of skull. His evidence as a whole shows that the death took place
due to injury No. 4 which was noticed by him when he had first
examined Sunil Patil on 21.10.1998. The P.M. report was prepared
by him which is at Exh. 90 and it is consistent with the oral evidence
of Dr. Sayyed. The final opinion regarding cause of death, which is at
Exh. 91, was given that the death due to intracranial haemorrhage
Cri. Appeal No.369/01 & Ors.
due to fracture of skull.
31) In the evidence of Dr. Sayyed (PW 8), it is brought on
the record that injury No. 4 can be caused by wooden log, Article
No. 3, which is shown to be recovered during investigation by police.
He has given evidence that incised wounds can be caused by sharp
weapon like sword and knife. He has given specific evidence that the
injury caused by wooden log proved to be fatal in the present
matter.
32) Some suggestions were given to Dr. Sayyed (PW 8) like
the size of the injuries does not correspond to the weapon used.
What was necessary for the prosecution is to prove that the fatal
injury was caused by hard and blunt object. How much portion of
the weapon had touched the body cannot be said by the doctor and
such questions are always hypothetical in nature. It is suggested by
the defence to the witnesses that Sunil Patil was assaulted by others
and not by the accused. Further, the evidence of Dr. Sayyed (PW 8)
shows that there was history of assault which was given immediately
and the injuries could have been caused only in assault. So, there is
no need to discuss the evidence of Dr. Sayyed more.
33) Dr. Sanjeev Huzurbazar (PW 9) is the neurosurgeon and
Cri. Appeal No.369/01 & Ors.
he owns a private hospital by name Neuro Surgery Center. He has
given evidence that Sunil Patil was admitted in hospital on
22.10.1998 and he had operated on Sunil Patil as there was the
aforesaid head injury. His evidence shows that Sunil Patil died in his
hospital on 26.10.1998. The certificate prepared by this doctor is
proved as Exh. 96 and it also includes the record of treatment. The
C.T. scan record and other record and case papers is at Exh. 97. This
doctor is extensively cross examined and even the Trial Court has
discussed his evidence even given on operation. That is unnecessary
in the present matter as the death took place due to head injury and
even after operation, there was haemorrhage in the skull, in the
brain.
34) The evidence of Dr. Sanjeev (PW 9) needs to be
considered on one aspect like the injuries noticed by him on the
person of Sunil Patil. He noticed injuries like multiple sutured C.L.W.
on ear and chin, two C.L.Ws. on back, injuries over left ring finger
and right little finger and injury over left side of parital region. In
Exh. 97 prepared by Dr. Sanjeev (PW 9) only aforesaid injuries were
mentioned by him. This circumstance is important as this record and
evidence of Dr. Sanjeev is not consistent with the evidence of Dr.
Sayed (PW 8). However, this inconsistency need not be considered in
the present matter as only three persons are convicted and there is
Cri. Appeal No.369/01 & Ors.
sufficient evidence against them for proving the offences for which
they are convicted by the Trial Court.
35) Dr. Udaysingh Patil (PW 11) is examined by the
prosecution to prove the injuries sustained by Devendra (PW 3). The
evidence of Dr. Patil (PW 11) shows that Devendra was examined on
21.10.1998 at 5.15 p.m. and Devendra had given the history of
assault. Dr. Patil found following injuries on the person of Devendra.
"(i) Contusion of left thigh of size 2ʺ x 1ʺ laterally.
(ii) Abrasion on left buttock of size 1/4ʺ x 1/4ʺ."
36) The evidence of Dr. Patil (PW 11) shows that aforesaid
injuries were caused by hard and blunt object and they were simple
injuries. Though there is circumstance that Devendra (PW 3) was
examined at 5.15 p.m. when he had approached police immediately
after the incident and the crime was registered at 11.30 a.m., this
circumstance cannot make much difference and due to this
circumstance the evidence of Devendra or Dr. Patil cannot be
discarded. The cross examination of Dr. Patil (PW 11) shows that it is
only suggested to him that the names of assailants were not given.
The names of assailants are never required to be given when history
in respect of injury is given to doctor. Dr. Patil (PW 11) has admitted
that such minor injuries can be caused during the routine incidents
Cri. Appeal No.369/01 & Ors.
and due to simple fall considering the size of injuries like on buttock
and on left thigh. This Court holds that the medical evidence
supports the version of Devendra (PW 3). This circumstance is
important as it shows that Devendra was also present on the spot
and he sustained some injuries on the spot. It is already observed
that only one injury inflicted on the head of deceased proved to be
fatal and other injuries inflicted on the person of deceased were not
that serious.
37) Balu Ahire (PW 1) is panch witness on spot panchanama
and the panchanama is proved in his evidence as Exh. 74. Nothing
was found on the spot. Much was argued by the learned counsel for
accused on this circumstance. In view of nature of evidence, it can
be inferred that due to presence of Devendra (PW 3) on the spot,
the deceased was shifted immediately to police station and further,
the injuries which were found on the person of deceased were not
having profused bleeding. Thus, the evidence on spot panchanama
has not created reasonable doubt about the version of Devendra
(PW 3). On the contrary, this circumstance shows that no attempt
was made of concoction so far as the present matter is concerned.
The evidence of Balu Ahire (PW 1) shows that on the same day, the
clothes of Devendra were taken over under panchanama at Exh. 75.
The panchanama shows that at the waist, there was one cut to the
Cri. Appeal No.369/01 & Ors.
pant and there were blood stains on both shirt and pant. The clothes
were taken over on 21.10.1998 itself, but there is no record to show
that the clothes were sent to C.A. Office. In any case, when there is
medical evidence, this circumstance can be ignored. The
circumstance like preparation of spot panchanama on 21.10.1998
between 12.15 p.m. and 1.00 p.m. again shows that the
investigating agency had taken immediate steps for collecting the
material.
38) Rajendra (PW 2) is panch witness on the memorandum
of statement given by accused No. 1 Anil Sonawane. The statement
was given by accused No 1 Anil that he had concealed the weapon at
Shirsale Naka and he was ready to produce the same and it was
reduced to writing and the document is at Exh. 77. The evidence is
given by Rajendra (PW 2) that accused No. 1 took police and
panchas to the spot situated near Shirsale Naka and there is one
brook. He has given evidence that from the shrubs, accused No. 1
took out wooden log having reddish blood like stains and also one
Asari and they were seized under panchanama at Exh. 78. The oral
evidence of Rajendra (PW 2) is consistent with the contents of this
document. As the articles were not sent to C.A. Office, not much can
be made out from this piece of circumstantial evidence.
Cri. Appeal No.369/01 & Ors.
39) Mohan Mohadikar (PW 12), the Police Inspector, made
investigation of the case. In his evidence, following omissions from
previous statement of the eye witnesses are proved. Devendra (PW
3) had not stated before police that accused Nilesh had assaulted by
using Asari and he had not even taken the name of accused No. 4
Nitin as already mentioned in the F.I.R. He had not stated before
police that deceased Sunil Patil had taken the blow of sword on his
hand. Some omissions and inconsistencies in the evidence of other
witnesses were also pointed out. This Court has already observed
that there is no circumstantial check to the other direct evidence and
so, those omissions and inconsistencies need not be considered in
detail.
40) The defence has examined one witness Chandrakant
Pachpande (DW 1) to prove the defence of alibi of accused No. 7
Ashwin. The evidence of this witness is not full proof and he has no
personal knowledge about the presence of Ashwin at the place
mentioned by him. His evidence is mainly on the basis of record.
This Court has come to the conclusion that the evidence given as
against Ashwin is not that convincing and due to the absence of his
name in the F.I.R. and due to the other circumstances like number of
injuries found on the dead body, due to first incident, the conviction
to Ashwin is not possible. So, there is no need to discuss the
Cri. Appeal No.369/01 & Ors.
evidence on alibi in detail.
41) The Trial Court has held accused Nos. 1, 2 and 4 guilty,
but due to nature of injury inflicted by accused No. 1 Anil Sonawane,
he is held guilty for the offence of culpable homicide not amounting
to murder punishable under section 304 Part II of IPC. It can be said
that it was not preplanned incident and the incident took place all of
a sudden. Whatever articles were available must have been used. As
there is political rivalry, the possibility of keeping such articles in the
vehicle by the accused persons cannot be ruled out. Unfortunately,
Sunil Patil died due to injury which was sustained on the head and
the evidence on record cannot lead to inference that the injury on
the head was inflicted with intention of murder. Only one blow was
given on the head and not many injuries were inflicted to the
deceased in the incident which took place at Shirsale Naka. Due to
these circumstances, this Court holds that the conviction given to
accused No. 1 Anil Sonawane for aforesaid offence is correct and
interference is not warranted in the said conviction. The other two
accused inflicted simple injuries though by using dangerous weapons
like sharp and cutting weapons, sword and knife and they are
convicted for the offence punishable under section 324 of IPC. Due
to nature of injuries inflicted by them, this Court holds that intention
of murder cannot be inferred. There is clear possibility that they
Cri. Appeal No.369/01 & Ors.
wanted to teach a lesson to Sunil Patil and only with that view,
beating was given. So, the conviction given to accused Nos. 2 and 4
for the offence punishable under section 324 of IPC is also proper.
Thus, the view taken by the Trial Court is possible view and
interference is not possible in the decision of the Trial Court.
42) The learned APP placed reliance on observations made
by the Apex Court in the cases reported as (2016) 10 SC 663
[Saddik alias Lalo Gulam Hussein Shaikh and Ors. Vs. State of
Gujarat] and (2013) 12 SCC 796 [Mritunjoy Biswas Vs.
Pranab alias Kuti Biswas and Anr.]. These cases are mainly on
appreciation of evidence. The Apex Court has laid down that hyper
technical approach should be avoided and minor discrepancies in the
evidence should not be given undue importance as they do not affect
core of the prosecution case. There cannot be dispute over this
proposition. The Apex Court has further observed that omission can
be called as 'material omission' only if it creates serious doubt about
the truthfulness of prosecution evidence and prosecution case. This
proposition also cannot be disputed. In the present matter, non
mention of names of all the remaining accused in the F.I.R. was not
minor omission as apparently these accused were also on enmical
terms with the side of complainant and they were known to
Devendra (PW 3). When the F.I.R. is given by injured witness and
Cri. Appeal No.369/01 & Ors.
there are such circumstances, it is not possible to believe the
substantive evidence given against such accused persons. The
learned APP argued that when there is unlawful assembly which had
common object, it is not necessary to prove that all persons
committed some overt acts. There is no dispute over this
proposition. There are other circumstances in the present matter
and due to that it is not possible to convict the other accused
persons.
43) The learned counsel for respondents, accused placed
reliance on the case reported as 2017 ALL MR (Cri) 1215
[Manisha w/o Ravindra Humbe and Anr. Vs. The State of
Maharashtra]. In this case, this Court has discussed the difference
between murder and culpable homicide not amounting to murder. It
depends upon various factors. The facts and circumstances of each
and every case are always different. In case reported as AIR 2001
SC 2328 [Takhaji Hiraji Vs. Thakore Kubersing Chamansing
and Ors] also there are observations on this point.
44) In the case reported as 2017 ALL SCR (Cri) 421
[Vijay Pandurang Thakre & Ors. Vs. State of Maharashtra],
the Apex Court has laid down that when the provision of section 149
of IPC is used, it needs to be established by the prosecution that
Cri. Appeal No.369/01 & Ors.
every accused was member of unlawful assembly. It is also laid
down that the object of unlawful assembly like murder also needs to
be established by the prosecution. There cannot be dispute over this
proposition. Similar observations are made in the case reported as
2014 ALL SCR 852 [Badal Murmu & Ors. Vs. State of West
Bengal] and 2014 ALL SCR 3199 [Kusha Laxman Waghmare
Vs. State of Maharashtra].
45) In view of the discussion made above, this Court holds
that both the appeal and the revision need to be dismissed and they
are accordingly dismissed. Criminal Application is allowed as
opportunity was given by this Court to the counsel of the applicant
to argue the matter. The bail bonds of the respondents stand
cancelled.
[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]
ssc/
