Bombay High Court

State Of Maharashtra vs Laxman Kundlik Murkute And Others on 23 June, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.287 OF 1999


 The State of Maharashtra,
 Through Police Station,
 Gangakhed.
                                 ...APPELLANT 
        VERSUS             

 1) Laxman s/o Kundlik Murkute,
    Age-57 years, Occu:Agri.,
    R/o-Zola, Tq-Gangakhed,
    Dist-Parbhani,

 2) Suryakant s/o Patloba Murkute,
    Age-39 years, Occu:Agri.,
    R/o-As Above,

 3) Madhav s/o Satwaji Dahiphale,
    Age-34 years, Occu:Agri.,
    R/o-As Above,

 4) Ramdas s/o Dharmaji Murkute,
    Age-39 years, Occu:Agri.,
    R/o-As Above,

 5) Dhanraj alias Daulat s/o Dnyanoba
    Palwade,
    Age-29 years, Occu:Agri.,
    R/o-Zola, Tq-Gangakhed,
    Dist-Parbhani,

 6) Dnyanoba s/o Bhanudas Sangale,
    Age-30 years, Occu:Agri.,
    R/o-Sangale-Wadi, Tq-Gangakhed,



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 7) Bhaskar s/o Prabhu Bhise,
    Age-32 years, Occu:Agri.,
    R/o-Pimpri, Tq-Gangakhed,
    Dist-Parbhani,

 8) Balasaheb s/o Laxman Murkute,
    Age-37 years, Occu:Agri.,
    R/o-Zola, Tq-Gangakhed,
    Dist-Parbhani,

 9) Dnyanoba s/o Laxmanrao Murkute,
    Age-34 years, Occu:Agri.,
    R/o-As Above,

 10) Shridhar Laxmanrao Murkute,
     Age-32 years, Occu:Business,
     R/o-As Above,

 11) Sudhakar Laxman Murkute,
     Age-29 years, Occu:Education,
     R/o-Zola, Tq-Gangakhed,
     Dist-Parbhani,

 12) Pralhad Laxman Murkute,
     Age-27 years, Occu:Edcuation,
     R/o-As Above,

 13) Navnath s/o Patloba Murkute,
     Age-34 years, Occu:Agri.,
     R/o-As Above,

 14) Vaijnath Panditrao :Palwade,
     Age-27 years, Occu:Education,
     R/o-As Above,

 15) Pandit Ba;purao Palwade,
     Age-34 years, Occu:Agri.,
     R/o-As Above,




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 16) Sanjay Murlidhar Ambilwade,
     Age-30 years, Occu:Business,
     R/o-Gangakhed, Dist-Parbhani,
     Warik Galli, House of Narayan Damre,
     Gangakhed, Tq-Gangakhed,
     Dist-Parbhani.   
                                 ...RESPONDENTS
                                 (Orig. Accused)

                      ...
    Mr. P.G. Borade, A.P.P. for  Appellant-State.
    Mr. R.S. Deshmukh, Advocate  for Respondent
    Nos.1, 10 and 11.
    Mr. J.M. Murkute Advocate for Respondent 
    Nos.2, 4, 7 and 13.
    Mr. U.B. Bondar Advocate for Respondent
    Nos.3, 5, 6, 8, 9, 12, 14 to 18.       
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 15TH JUNE,2017.

DATE OF PRONOUNCING JUDGMENT: 23RD JUNE, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

Judgment and order dated 22nd January, 1999,

passed by the Additional Sessions Judge, Parbhani,

in Sessions Trial No.115 of 1992 thereby

acquitting all the accused persons from the

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offence punishable under Sections 147, 148, 302

read with Section 149, 324 and 325 of the Indian

Penal Code (for short "I.P. Code").

2. The prosecution case, in brief, is as

under:-

A) Accused No.1 Laxman Kundlik Murkute is a

resident of village Zola, Tq-Gangakhed, Dist-

Parbhani, and at the relevant time he was the

Sarpanch of the said village. There were two

groups in the village and tussle was going on in

between them over gaining the control of

Grampanchayat.

B) On 22nd November, 1990, the rival group

of the accused had been to Parbhani to give a

memorandum to the Collector inter-alia mentioning

that accused No.1 Laxman should be externed from

the village for his criminal activities. After

submitting the memorandum, the group of 25 to 30

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persons returned back to Gangakhed. At Gangakhed,

the said group was divided further into 3 to 4

groups. Out of said 3-4 groups, one group returned

back to village Zola, whereas one group started

proceeding towards Mondha area, whereas some

persons scattered here and there. Some persons

stayed back at Parbhani. When a group of 10 to 15

persons on their way to Mondha came near

"Kabarsthan", the alleged incident had taken

place.

C) According to prosecution, accused No.2

Suryakant s/o Patloba Murkute was standing on the

road, and when he saw the said group of 10 to 15

persons, he remarked as to "what would happen by

submitting a memorandum", and according to the

prosecution case, that was the beginning point of

the incident. According to prosecution, at that

point of time, when exchange of abuses took place

between accused No.2 Suryakant and the said group

of 10 to 15 persons, accused No.1 Laxman along

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with his five sons reached on the spot in a Jeep.

Some other persons also reached on the spot armed

with weapons like iron rods, iron pipes etc. and

then the quarrel started. According to

prosecution, at that point of time, accused No.1

Laxman initially stabbed Shriram s/o Sitaram

Mundhe on his back and so also accused No.10

Shridhar also assaulted him by an iron rod. At

that point of time, in the said quarrel, various

other persons also received the injuries. Within 5

to 10 minutes the incident was over, and in the

said incident Sheshrao s/o Sonba Mundhe, Pandurang

s/o Dnyanoba Mundhe, Shriram s/o Sitaram Mundhe

(deceased), Adinth s/o Shriram Mundhe, Tulshiram

s/o Sonba Mundhe received injuries.

D) When the said quarrel was going on, the

police also received a telephonic message that a

quarrel was going on, and therefore, police rushed

to the spot of incident. However, on reaching the

spot of incident, police found that nobody was

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present on the spot and police were told that the

injured had already reached the police station and

so police returned back. In the police station,

five persons in an injured conditions were present

and so they were immediately taken to the

hospital. Dr. Siddhartha Bhalerao (PW-1) and Dr.

Ramgopal Biyani (PW-2) were the doctors attached

to the Government Hospital, Gangakhed. Dr.

Siddhartha Bhalerao (PW-1) examinded Sheshrao s/o

Sonba Mundhe, Pandurang s/o Dnyanoba Murkute,

Shriram s/o Sitaram Mundhe, Tulshiram s/o Sonba

Mundhe and Adinath s/o Shriram Andhale. On

examination of Shriram s/o Sitaram Mundhe

(deceased), police found that he had received

serious injuries. Investigating Officer Navnath

s/o Kishanrao Dhole, P.S.I. (PW-10) asked the

doctor as to whether said Shriram was in a

position to give a statement or not, and on

examination, doctors certified that said Shriram

was in a position to give a statement, and

therefore, his statement was recorded. According

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to P.S.I. Dhole, he even sent a letter to the

Executive Magistrate requesting him to record the

dying declaration. However, sensing the danger of

death, P.S.I. Navnath Dhole recorded the dying

declaration of Shriram s/o Sitaram Mundhe.

Unfortunately, within an hour or so, said Shriram

s/o Sitaram Mundhe succumbed to death.

E) Police then recorded a statement of

Dnyanoba s/o Nivrutti Murkute in the form of a

complaint and on the basis of the said report,

police registered an offence bearing Crime No.253

of 1990.

F) Meanwhile, the two injured persons from

the other party also had reached to the police

station and they were accused No.1 Laxman s/o

Kundlik Murkute and accused No.2 Suryakant s/o

Patloba Murkute. Police had registered their

complaint also, and referred them for medical

examination. Doctors examined these two injured

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persons i.e. Laxman s/o Kundlik Murkute (accused

No.1) and Suryakant s/o Patloba Murkute (accused

No.2). There is a controversy as to who reached

first in the police station and amongst the two

rival groups actually who lodged the complaint

first.

G) After Crime No.253 of 1990 was registered

for the offence punishable under Sections 307,

148, 149, 324 and 325 of the I.P. Code, the

investigation started. Various statements were

also recorded on the very same day including the

statements of injured persons like Pandurang s/o

Dnyanoba Mundhe, Sheshrao s/o Sonba Mundhe,

Adinath s/o Shriram Andhale, Tulshiram s/o Sonba

Mundhe etc.

H) As Shriram s/o Sitaram Mundhe succumbed

to death, his inquest panchnama was then carried

and his dead body was sent for the postmortem

purposes and Dr. Ramgopal Biyani (PW-2) carried

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out the postmortem. On the next day morning,

police went to the spot of incident and reduced

into writing a scene of offence panchnama.

I) Police had seized various articles by

drawing a panchnama to that effect, and police

arrested the accused persons.

J) While accused No.1 Laxman and accused

No.10 Shridhar were in the custody, they expressed

a desire to give a memorandum statements and their

memorandum statements were also recorded and in

pursuance to the memorandum statements, the

seizures were made and in the said seizures, a

weapon for the commission of an offence, a knife

(Article No.8) was recovered at the instance of

the information given by accused No.1 Laxman. A

pipe and iron rods were also seized at the

instance of an information given by accused No.10

Shridhar.

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K) Thereafter all the seized articles were

sent to Chemical Analyzer, Aurangabad for Chemical

Analysis and ultimately after collection of the

sufficient evidence, police had filed a charge-

sheet in the Court of J.M.F.C., Gangakhed as far

as present case is concerned. Police had also

filed a charge-sheet of the counter-case in the

very same Court.

L) The learned J.M.F.C., Gangakhed committed

the case to the Court of Sessions as the offences

charged against the accused were exclusively

triable by the Court of Session. However, the

counter-case was not committed to the Court of

Session and the learned J.M.F.C., Gangakhed

ultimately tried the counter-case and acquitted

the accused therein.

M) The Charge was framed. All the accused

pleaded not guilty and therefore, claimed to be

tried.

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3. After recording the evidence and

conducting full fledged Trial, the Additional

Sessions Judge, Parbhani acquitted all the accused

from all the offences with which they were

charged, and hence this Appeal by the State.

4. Heard learned A.P.P. appearing for the

State and learned counsel appearing for respective

Respondents-accused, at length. With their able

assistance, we have carefully perused the entire

notes of evidence so as to find out whether the

findings recorded by the trial Court are in

consonance with the evidence brought on record or

otherwise.

5. Prosecution has examined PW-1 Dr.

Siddharth Pandurang Bhalerao. He deposed that on

22nd January, 1990, he was working as a Medical

Officer at Civil Dispensary, Gangakhed. One

Sheshrao s/o Sonba Mundhe was brought to his

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dispensary by police station, Gangakhed and

thereafter he examined him at 4.00 p.m. PW-1 Dr.

Siddharth deposed that he found following injuries

on the person of Sheshrao s/o Sonba Mundhe:-

1. CLW over temporal area size 1 cm. X 1 cm. X 1/2 cm. Nature of the injury was simple and the age was three hours.

2. Fall of two teeth upper jaw incisor swell fallen.

Fresh bleeding was present. There was clot on the Gingual margins on 5 cm. X 2 cm. X 1cm. Over lying lip was injured. Nature of injury was grievous, caused by hard and blunt object. Age was within three hours.

3. Contusion over right knee size 2 cm. X 1 cm. tenderness was present. Nature of injury was simple Age within three hours caused by hard and blunt object. He further deposed that injuries were possible by Article Nos.10 or 11 (iron rods).

. PW-1 Dr. Siddharth further deposed that

he also examined on the same date one Pandurang

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s/o Dnyanoba Murkute. On examination, he found

following injuries on the person of Pandurang s/o

Dnyanoba Murkute:

1. Incised injury over frontal bone region, size 1 cm. X 1.5 cm. X 1 cm. bleeding was present. Clothes were soiled with blood. Nature of injury was grievous, caused by sharp cutting object. Age within 2 to 3 hours.

2. Swelling over right cheek size 2 cm. circular in shape injury was tender. Caused by hard and blunt object. Age within 2 to 3 hours. Nature grievous.

3. Swelling over mandible right side, size 2.5 cm. X 1.5 cm. X 1.5 cm. Injury was tender, caused by hard and blunt object. Age within 2 to 3 hours, simple in nature.

. PW-1 Siddharth further deposed that, on

the same day one Shriram s/o Sitaram Mundhe was

admitted in the hospital. To record the statement

of Shriram Sitaram Mundhe, police officer had come

to the hospital. He further deposed that the

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concerned police asked in his presence as to

whether the patient Shriram Sitaram Mundhe was in

a position to give a statement or not. He examined

the patient clinically and gave an opinion that

the patient Shriram Mundhe was in a position to

give a statement. He reduced into writing his

opinion and signed below it. PW-1 Dr. Siddharth

was shown the said recorded endorsement and his

signature below it. He deposed that endorsement

was in his handwriting, he identified his

signature on it and further deposed that the

contents are correct. He deposed that statement

was reduced into writing in his presence.

. In cross-examination PW-1 Dr. Siddharth

deposed that he did not receive any letter from

the police station requesting him to examine these

patients. He admitted that on the very same day he

examined Laxmanrao Murkute (accused No.1) and

Suryakant Murkute (accused No.2). He stated that

injury No.1 in Exhibit 50, an injury certificate

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with respect to Laxmanrao, is a grievous injury

and might have been caused by a sharp cutting

weapon.

6. Prosecution examined PW-2 Dr. Ramgopal

s/o Madanlal Biyani. He deposed that on 22nd

November, 1990 he was attached to Gramin

Rugnalaya, Gangakhed as medical officer. He

deposed that on the said day, one Shriram s/o

Sitaram Mundhe (deceased) was admitted in the

hospital as sent by police. He deposed that he

examined the said patient and admitted him as an

Indoor Patient. He deposed that on examination, he

found following injuries on the person of Shriram

s/o Sitaram Mundhe:-

1. Incised wound 3 X 1/2 X 6.5 cm. over eighth inter-coastal space, Righ back- side, vertical 7 cm. from mid-line. Fresh red bleeding present from wound. Soft tissues of lungs were destroyed. Dhoti, Banyan and shirt were stained

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with blood, profused bleeding occurred and bleeding was also present from mouth and nostrils.

2. Lacerated wound 2 X 1/2 X 1.10 cm. at vertex of the head in mid-line, vertical, clotted bright red blood was present over wound.

3. Lacerated wound 1 and 1/2 X 1/4 X 1.10 cm. over right parietal bone, vertical, one and half cm. from mid- line and 7 cm. behind parietal fronto joint clotted bright red blood present over wound. Scalp hairs and face was stained with blood.

. PW-2 Dr. Ramgopal further deposed that injury

No.1 was dangerous to life and caused by sharp

cutting edged substance and injury Nos.2 and 3 are

simple injuries and might have been caused by hard

and blunt objects. He deposed that all the three

injuries might have been caused within one to

three hours. He further deposed that injury No.1

as explained in Exhibit-53 (injury certificate)

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was possible by a weapon like Article No.8 - a

knife. He further deposed that injury Nos.2 and 3

as explained in Exhibit-53 could be caused by an

iron pipe - Article No.9.

. PW-2 Ramgopal further deposed that he

also examined one Adinath s/o Shriram Andhale on

the very same day as he was also brought by police

for medical examination. He noticed following

injury on the person of Adinath, in his clinical

examination:

Incised wound size 1.5 X 0.5 X 0.50 cm. over right back side, vertical 5 cm. below the lower end of Scapula. Clotted fresh red blood present over wound. Blood stains over that Bush-Shirt and Pant present. Soft tissues were cut, wound was spindle shaped, margins were even and clean cut. Injury was grievous in nature and seems to be caused by sharp cutting edged substance and age was one to three hours.

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. PW-2 Ramgopal further deposed that the

above injury was dangerous to life and in the

absence of medical aid, the injury was sufficient

to cause the death in ordinary circumstances. He

further deposed that the said injury was possible

by a weapon like Article No.8 - a knife.

. PW-2 Ramgopal further deposed that on the

very same day, one Tulshiram s/o Sonba Mundhe was

also brought by police for examination and

accordingly he (PW-2) examined him. He deposed

that he found following injuries on the person of

Tulshiram s/o Sonba Mundhe:-

1. Lacerated wound 3 X 2 X 1.10 cm over left knee at outer and upper quadrangle,

2. Lacerated wound 3 X 1/2 X 1.10 cm. over left knee at lower border in mid- line, horizontal,

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3. Lacerated would 2.5 cm. X 1.4 cm. X 1/10 cm. over left eye brow, horizontal at lateral half part.

4. Contusion 5 cm X 4 cm. over left thigh, outer-side at neck of the femur bone.

5. Contusion 3 cm. X 2 cm. over lower eye-lid.

6. Contusion 3 cm. X 2.5 cm. over left forearm backside of the junction of lower one third and middle one third.

. PW-2 Ramgopal further deposed that all

lacerated wounds show clotted bright red blood on

contusions were bright red in colour and all above

injuries were simple in nature and seems to be

caused by hard and blunt object and age was about

one to two hours.

. PW-2 Ramgopal further deposed that

Shriram s/o Sitaram Mundhe succumbed to death at

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4.35 p.m. on 22nd November, 1990. He informed

death of Shriram to the police. After police drew

an inquest panchnama, he carried out the

postmortem of Shriram.

7. Upon careful perusal of evidence of

medical officers PW-1 Dr. Siddharth Bhalerao and

PW-2 Dr. Ramgopal Biyani, it is abundantly clear

that not only the prosecution witnesses suffered

the injuries but also the accused persons

sustained injuries during the incident. It appears

from careful perusal of the medical evidence that

accused No.1 Laxman suffered one grievous injury.

PW-1 Dr. Siddharth, during his cross-examination,

stated that injury No.1 in Exhibit 50 i.e. injury

certificate in respect of the injuries sustained

to accused No.1 Laxman, is a grievous injury and

might have been caused by sharp cutting weapon. It

is true that other injuries suffered by the

accused persons are simple in nature.

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8. Before we discuss the evidence of eye

witnesses, it would be apt to discuss about the

dying declaration at Exhibit 48-A. We have

carefully perused the contents of said dying

declaration of Shriram Sitaram Mundhe. The said

dying declaration was recorded by the

Investigating Officer Navnath Dhole (PW-10).

Admittedly, there is no mention in the said dying

declaration that the same was read over to the

declarant Shriram and that he admitted the

contents of the said dying declaration. Upon

careful perusal of the evidence of investigating

officer, he stated that before dying declaration

was recorded, medical officer PW-2 Dr. Ramgopal

Biyani did not make an endorsement and orally told

that Shriram was in a fit condition to give the

dying declaration. An endorsement given by the

medical officer is after recording the said dying

declaration. It is true that upon careful perusal

of the contents of the said dying declaration,

Shriram (deceased) stated that Laxman assaulted

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him by knife and Shridhar (son of Laxman), has

also assaulted him by iron rod. He also stated

that other persons accompanying him were also

assaulted by the group headed by Laxman. It

appears that spot of incident stated by deceased

Shriram is near the 'Jamge building'. We find

considerable force in the argument of learned

counsel appearing for the Respondents that all

other witnesses have stated different spot of

incident i.e. near 'Kabarsthan'. Upon careful

perusal of the dying declaration, we find that the

signature of the declarant Shriram is after

considerable space from the last sentence of the

dying declaration, which creates suspicion in the

mind, whether the contents of the dying

declaration were narrated by Shriram himself or

otherwise. Admittedly, scribe of the dying

declaration is not examined by the prosecution.

There was serious allegation of accused persons as

against Investigating Officer that his

investigation was biased.

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. Keeping in view the injuries sustained by

Shriram, it was necessary for the medical officer

to have the proper medical examination of Shriram

and then put an endorsement about his

consciousness and well orientation to give such

dying declaration. It is true that in view of the

exposition of law by the Supreme Court in the case

of Laxman vs. State of Maharashtra1, even in

absence of endorsement of medical officer, if from

the other circumstances and evidence the dying

declaration inspires confidence, the same can be

simply believed. However, in the peculiar facts

and circumstances of this case and keeping in view

serious injuries suffered by Shriram, in our

opinion the medical officer should have taken

proper care to give endorsement even before

recording the dying declaration and also his

presence was necessary during the course of

recording such dying declaration. We also find

1. 2002 Cri.L.J. 4095

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considerable force in the argument of learned

counsel Mr. R.S. Deshmukh appearing for Respondent

Nos.1, 10 and 11 that circumstances brought on

record clearly indicated that office of the

Executive Magistrate was nearby the Government

Hospital, Gangakhed and it was possible for the

Investigating Officer to call the Executive

Magistrate so as to record the dying declaration

of Shriram, since it is well settled that the

dying declaration recorded by the Executive

Magistrate stands on much higher footing vis-a-vis

the dying declaration recorded by the other

officers/persons. The afore-said contention

advanced by the counsel Mr. Deshmukh appearing for

Respondent Nos.1, 10 and 11 is fortified by the

exposition of law by the Supreme Court in the case

of Khushal Rao vs. State of Bombay 2, wherein it is

observed that the dying declaration recorded by a

competent Magistrate in the proper manner, that is

to say, in the form of questions and answers, and,

2 A.I.R. 1958 S.C. 22 (V 45 C 4)

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as far as practicable, in the words of the maker

of the declaration, stands on a much higher

footing than a dying declaration which depends

upon the oral testimony which may suffer from all

the infirmities of human memory and human

character. Be that as it may, the dying

declaration of Shriram Sitaram Mundhe recorded by

the Investigating Officer, does not inspire

confidence so as to rest the prosecution case on

the said dying declaration and reverse the

acquittal of the Respondents-accused.

9. Now, we turn to discuss the evidence of

prosecution witnesses, who as per the prosecution

case, are the eye witnesses.

10. The prosecution examined PW-3 Sheshrao

s/o Sonba Mundhe, who is injured eye witness to

the incident. He deposed that incident took place

eight years ago and on 22nd November, 1990. He

deposed that Laxman Murkute from their village was

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causing a nuisance to the other villagers and

therefore police had initiated an externment

proceedings against him. In that connection

witness himself and other villagers had been to

Parbhani to give a memorandum to the Collector. On

that day witness himself along with Tulshiram

Mundhe, Shriram Sitaram Mundhe, Dnyanoba Nivrutti

Murkute and other villagers numbering about 30

to 32 went to Parbhani. He further deposed that

they submitted a memorandum to Collector at

Parbhani, in between 11.00 to 12.00 a.m. He

deposed that by railway they returned back to

Gangakhed. They reached Gangakhed at about 2.00

p.m. Some 10 to 12 out of them started going

towards the Bazar area via S.T. Stand.

. About the main incident, PW-3 Sheshrao

Mundhe deposed that on their way to Bazar,

Suryakant Patloba Murkute met them. He is a

resident of their village. Suryakant (accused

No.2) told them in Marathi, "NIVEDAN DEVOON KAI

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WAKDE HONAR AAHE" (what will be the use of

memorandum). He further deposed that thereafter an

exchange of words took place between Suryakant and

them. Immediately thereafter, Laxman Kundlik

Murkute (accused No.1) and his five sons- Balaji,

Dnyanoba, Shridhar, Sudhakar and Pralhad came in a

jeep, and they started abusing them. Thereafter

ten persons came on the spot of incident. The said

persons were - Madhav Stwaji Daiphale, Dharmaji

Dnyanoba Palode, Pandit Bapurao Palode, Ramdas

Dhanaji Murkute, Vijanath Pandit Palode, Navnath

Patloba Murkute, Dnyanoba Sangle from Sangle-wadi,

son of Sanjay "Sonar" and Bhaskar Prabhu Bhise of

Pimpri. PW-3 Sheshrao identified accused No.16-

Sanjay Ambilwade, accused No.9 - Dnyanoba Murkute,

accused No.11 - Sudhakar Murkute, accused No.5 -

Dhanraj Palwade and other accused persons. He

further deposed that these persons started abusing

them. He deposed that these persons were holding

iron rods and iron pipes in their hand. These

persons started assaulting them. He deposed that

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accused No.10 - Shridhar Laxman Murkute assaulted

Shriram Sitaram Mundhe by an iron pipe. Accused

No.10 - Shridhar hit Shriram on his head. Laxman

Murkute (accused No.1) stabbed Shriram Sitaram

Mundhe by a knife on his back. Laxman Murkute

(accused No.1) also stabbed Adinath Shriram

Andhale on his back, by a knife. Laxman Murkute

(accused No.1) then took an iron rod from Pralhad

and gave two blows to witness himself (PW-3

Sheshrao), one on the face and another on the

head. PW-3 Sheshrao deposed that because of the

assault on his face, he received an injury on his

lips and so also his incisors were uprooted, four

in number. He deposed that he also had a head

injury which was bleeding in nature. He deposed

that accused Sudhakar assaulted on his leg by iron

rod. Because of this his knee became swollen. He

deposed that Pralhad also assaulted on his leg by

an iron pipe. He deposed that his brother

Tulshiram Sonba Mundhe was also assaulted by these

persons by an iron rod and an iron pipe. These

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persons also assaulted Pandurang Dnyanoba Murkute

by an iron rod and iron pipe. These persons also

assaulted by them by fist and blows. He deposed

that thereafter they all went to Gangakhed police

station. Police took them to the hospital in their

Jeep. He deposed that Dnyanoba Murkute lodged a

report in the police station. He deposed that

Shriram succumbed to death on the very same day in

the hospital. This witness was thoroughly cross-

examined by the defence.

11. During the cross-examination of PW-3

Sheshrao Mundhe, it is brought on record by the

defence that the spot of incident was crowded

area. There were two parties/groups in the village

Zola. One of the group was headed by accused No.1

Laxman. Since 1965 to 1990 Laxmanrao Murkute was

the Sarpanch of village Zola. It has also come on

record that Laxmanrao Murkute was elected Sarpnch,

unopposed on many occasions. In the year 1990, a

panel of Laxmanrao won the elections and the panel

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of Tulsiram or Sopan lost the elections. It has

also come on record that deceased Shriram never

contested the election. There was no any property

dispute between accused No.1 Laxmanrao and

deceased Shriram. Shriram was never an accused in

any case initiated by Laxmanrao. Laxman has also

lodged the complaint about the same incident dated

22nd November, 1990, and all the accused are

acquitted from the counter-case tried by the

Magistrate, registered on the basis of First

Information Report lodged by accused Laxman. In so

many words, this witness has stated that the road

on which incident had taken place is crowded area

and the people from Mondha reach to S.T. Stand and

the city through the said road. However, it is to

be noted that in the present case only PW-5

Adinath Shriram Andhale is examined as an

independent witness. Upon careful perusal of

cross-examination of PW-3 Sheshrao Mundhe, he

denied that they beat Suryakant with fists and

blows and so also by shoes and 'Chappals'. It is

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further stated that he did not see injuries on the

person of Suryaknt. No exchange of abuses took

place at the time of incident. PW-3 Sheshrao

further stated that he did not see the bleeding

injuries on the person of Laxman at the place of

incident. He did not see any injury on the person

of Laxman till he left the place of incident. He

did not see injuries on the person of Suryakant.

It appears that suggestion was given that when

Laxman alighted from the jeep he was surrounded by

the persons from his rival group, however this

witness has denied the said suggestion. He denied

that Laxman after receiving a severe injury,

failed down on the ground due to giddiness. He

also denied that there was free fight between the

two groups. Therefore, on the whole PW-3 Sheshrao

stated that no injuries were received by the

accused persons during the said incident. It is

also relevant to mention that in his cross-

examination he stated that when Laxman snatched

away an iron bar from Pralhad, they were at a

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distance of about 7 to 8 feet from him. At that

time he did not see a knife with Laxman. This

witness, at second breath, stated that Laxman was

holding knife. He also admits in cross-examination

that prior to the incident in question no

complaint was lodged against Laxman and Laxman was

not convicted in any criminal case. He also

admitted that Laxmanrao is a respectable and a

rich person in the surrounding area of Gangakhed.

He further stated that distance between the place

of incident and the lodge in front of S.T. Stand

is about 200 feet. In front of the shops of

Laxmanrao in Mondha area, there is liquor shop in

the Jamge building. From the spot of incident, it

takes about 5 to 10 minutes walk to reach to the

Jamge building in which a country liquor shop is

situated. Therefore, it appears that spot of

incident as stated by this witness is at 5 to 10

minutes distance by walk from the Jamge building,

which is stated as spot of incident by deceased

Shriram. PW-3 Sheshrao further stated that

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incident was over within 5 to 7 minutes.

. Upon careful perusal of cross-examination

of PW-3 Sheshrao, it is abundantly clear that he

has shown ignorance about the injuries suffered by

the accused persons. He tried to suppress the

genesis of the incident, in as much as he stated

that there was no scuffle between two groups. At

one point he stated that there were no two groups

in village Zola. The spot of incident stated by

this witness and spot of incident stated in dying

declaration by Shriram, appears to be two

different places. Therefore, it can safely be

stated that this witness has not disclosed the

full truth about the starting point of the

incident and also the manner in which the incident

had taken place and how the accused persons have

suffered injuries including one grievous injury

suffered by accused No.1 Laxman i.e. injury No.1

as stated by PW-1 Dr. Siddharth in his cross-

examination.

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12. The prosecution examined PW-4 Tulshiram

s/o Sonba Mundhe, another injured eye witness to

the incident. He deposed that incident took place

eight years ago. Some 25 persons on the day of the

incident had come to Parbhani to submit a

memorandum to the Collector requesting him to

extern Laxmanrao (accused No.1). He deposed that

along with him, Dnyanoba Nivrutti Murkute, Shriram

Sitaram Mundhe, Sheshrao Sonba Mundhe, Tukaram

Nivrutti Murkute and Sopan Nivrutti Murkute were

with him amongst their group of 25 persons.

Accordingly they submitted a memorandum. After

submitting the memorandum, they returned back to

Gangakhed.

. Regarding the main incident, PW-4

Tulshiram Mundhe deposed that five to 7 seven

persons from their group including witness himself

started going towards the town in a Bazar area.

They came upto "Kabarasthan". At that spot,

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Suryakant Patloba met them and he told us in

Marathi, "NIVEDAN DEWOON TUMCHYANE KAI WAKDE HONAR

AAHE". Immediately thereafter, Laxmanrao (accused

No.1) and his five sons reached on the spot in

Jeep. He deposed that the names of the sons of

Laxmanrao are Balasaheb, Dnyanoba, Shridhar,

Sudhakar and Pralhad. He deposed that immediately

followed by the above persons, six persons from

their village also reached on the spot. These six

persons were - Navnath Patloba, Pandit Bapuro,

Vaijnath Pandit, Ramdas Dharmaji, Madhav Satwaji

and Dhanraj Dnyanoba. He deposed that these

persons were holding the iron rod and the iron

pipes. They started abusing the witness and other

persons from his group and the quarrel started. He

deposed that in the said quarrel Shridhar Laxman

assaulted Shriram Sitaram by an iron pipe on the

head. Immediately thereafter, accused Laxman

stabbed Shriram in his back by a knife. He deposed

that he was standing near them. He deposed that

Shridhar then assaulted to the witness by an iron

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pipe causing an injury to his head. He deposed

that he received the injury above his eye-lid due

to the said iron pipe and as a result, blood

started trickling. He deposed that thereafter

Sudhakar by an iron rod assaulted him on his left

knee, on his leg and on his left shoulder. He

deposed that as a result he fell down on the

ground. Thereafter the assailants ran away from

the said spot. He deposed that thereafter he went

to Shriram and saw that Sheshrao had received

injury to his lip. He deposed that he saw that

blood was oozing from the injuries that Shriram

had sustained. He deposed that thereafter by

rickshaw, he went to the police station.

. During the course of cross-examination,

PW-4 Tulshiram stated that he contested the

Grampanchayat election twice, on both the

occasions against Laxman (accused No.1) and once

he won the election and once he lost. He stated

that he himself was a Sarpanch in between 1972 to

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1976. He stated that one panel was headed by

Laxman, whereas another panel was headed by him

for two elections. In other elections also these

two groups continued. He stated that Laxman had

lodged the complaint against him and others with

respect to the same incident dated 22nd November,

1990 but the Court acquitted the accused in that

case. He stated that he did not notice any injury

on the person of Suryakant as there were no

injuries at all. There were no exchange of hot

words or the abused hurled in between Suryakant

and them. He stated that he did not notice any

injury on the person of Laxman. He stated that

after Laxmanrao and his sons alighted from the

jeep, they immediately did not start assaulting

but there was initially a conversation between

Laxmanrao and the members of the group of the

witness.

13. Upon careful perusal of cross-examination

of PW-4 Tulshiram, he stated that he did not

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notice any injury on the persons of Suryakant or

Laxman. There was no exchange of hot words or

abuses hurled in between Suryakant and prosecution

witnesses. He also like PW-3, tried to suppress

the genesis of the incident and also has not

disclosed the manner in which the incident had

taken place. He denied that accused persons also

suffered injuries. Admittedly, both these

witnesses i.e. PW-3 Sheshrao and PW-4 Tulshiram

are the interested witnesses, in as much as they

both claim that they belong to group of deceased

Shriram Mundhe.

14. The prosecution examined PW-5 Adinath s/o

Shriram Andhale, an independent eye witness. He

deposed that incident took place on 22nd November,

1990. He deposed that on that day some 25 to 30

people had come to Parbhani to give a memorandum

demanding that Laxman Murkute be externed. These

persons were inclusive of Sopan Nivrutti Murkute,

Sheshrao Sonba Mundhe, Tulshiram Sonba Mundhe,

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Shriram Sitaram Mundhe. He deposed that he had

gone to Gangakhed on that day to sell green

chillies. He deposed that when he reached near

"Kabarastan, on his way to S.T. Stand, he saw that

the quarrel was going on amongst the villagers of

his village. He deposed that amongst the said

gathering, he identified Laxman Kundlik Murkute,

Balaji Kundlik Murkute, Dnyanoba Laxman Murkute,

Shridhar Laxman Murkute, Sudhakar Laxman Murkute,

Pralhad Laxman Murkute, Suryakant Patloba Mundhe,

Navnath Patloba Mundhe and others. He further

deposed that he went near them to see what was

going on. He deposed that at that point of time

accused Laxman Kundlik Murkute assaulted him by a

knife on his right hand and due to said assault,

he received bleeding injury. So he ran away from

the spot and concealed his identity by hiding.

Thereafter accused Laxman Kundlik Murkute and his

associates ran away from the said spot. He deposed

that he again reached on spot and found that

Shriram Sitaram Mundhe, Tulshiram Sonba Mundhe,

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Sheshrao Sonba Mundhe and Pandurang Dnyanoba

Murkute were found in an injured condition. He

further deposed that Shriram Sitaram Mundhe

succumbed to death in the hospital while doctors

were treating him.

. During his cross-examination, PW-5

Adinath has also not mentioned about the injuries

sustained by the accused persons. Therefore, he

has also not stated true version of the actual

incident.

15. PW-6 Pandurang s/o Dnyanoba Murkute

deposed that incident took place on 22nd November,

1990. He further deposed that at the relevant

time he was taking education in college at

Gangakhed. He further deposed that at about 2.00

to 2.30 p.m. after the college he started

proceeding towards S.T. Stand. He came upto the

corner of "Kabarstan". He deposed that a quarrel

was going on. He deposed that Laxman Kundlikrao

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Murkute and 15 to 16 others were assaulting the

persons who had gone to submit a memorandum. At

that point of time, accused Pralhad Laxman Murkute

pelted sharp edged stone to the witness causing an

injury above his right-side eye-lid. Accused

Shridhar Laxman Murkute gave him blows on his

mouth. Thereafter Balaji Laxman assaulted him by a

stick on his right hand palm and so also on his

back. His right-hand palm was swollen. He deposed

that thereafter the assailants ran away from the

spot. He further deposed that thereafter he saw

Shriram Sitaram Mundhe, Tulshiram Sonba Mundhe,

Sheshrao Sonba Mundhe, Adinath Shriram Andhale

were there in an injured condition. He further

deposed that Shriram Sitaram Mundhe succumbed to

death while he was in hospital.

. It appears that PW-6 Pandurang Murkute is

a chance witness, in as much as he was not present

on the spot of incident when the quarrel was

started. He stated that when he reached near the

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crowd quarreling, he came to know that quarrel was

going on amongst the persons belonging to his

village. He admits that between two groups quarrel

was going on. However, he has also not mentioned

how the accused persons suffered the injuries.

16. PW-7 Bhagwan Pandurang Phad was a panch

to the seizure panchnama of knife, discovered at

the instance of accused No.1 Laxman Murkute. Upon

perusal of evidence of PW-7 Bhagwan, it appears

that recovery of knife at the instance of accused

No.1 Laxman was from the open space nearby Babool

tree. As per the deposition of this witness, the

said knife was concealed by the side of road which

passes from S.T. Stand. Therefore, it is

abundantly clear that such alleged recovery of

knife at the instance of accused No.1 Laxman from

the open and accessible place to anybody, looses

its significance. This witness has admitted in his

cross-examination that the place from where knife

was produced, was an open place and anybody can

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have access to said place. He admitted that there

are no special marks to identify the said knife.

17. Keeping in view the exposition of law by

the Supreme Court in the case of Maslati and

others vs. The State of Uttar Pradesh 3, the

evidence of partisan and interested witnesses

needs to be carefully scrutinized and considered.

In case of an unlawful assembly, it is desirable

to have truthful version of true eye witnesses.

Keeping in view the evidence of alleged injured

and eye witnesses, they have not disclosed the

true version of the incident. They have not stated

that there was scuffle and both groups were

fighting with each other and even the accused

persons suffered injuries. As observed above, the

alleged recovery of knife at the instance of

accused Laxman looses its significance and cannot

be believed in view of the fact that knife was

recovered from open and accessible place to all,

3 A.I.R. 1965 S.C. 202

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and also there were no special identification

marks on the said knife. Where there is an

unlawful assembly and there are number of persons

fighting each other from two groups, in absence of

specific case of the prosecution supported by the

clinching evidence that Laxman was holding knife

and he, as a matter of fact, assaulted Shriram by

said knife and other prosecution witnesses, it

would be travesty of justice to cause the

interference in the order of acquittal. The

Supreme Court in the case of Muralidhar alias

Gidda and another vs. State of Karnataka 4 in para

12 held thus:-

12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs.State, AIR 1954 SC 1, Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637, Atley Vs. State of U.P., AIR 1955 SC 807, Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217, Balbir Singh Vs. State of Punjab, AIR 1957 SC 216, M.G.Agarwal Vs.

4. 2014 [4] Mh.L.J.[Cri.] 353

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State of Maharashtra, AIR 1963 SC 200, Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286, Khedu Mohton Vs. State of Bihar, [1970] 2 SCC 450, Shivaji Sahabrao Bobade Vs. State of Maharashtra, [1973] 2 SCC 793, Lekha Yadav Vs. State of Bihar, [1973] 2 SCC 424, Khem Karan Vs. State of U.P., [1974] 4 SCC 603, Bishan Singh Vs. State of Punjab, [1974] 3 SCC 288, Umedbhai Jadavbhai Vs. Sate of Gujarat, [1978] 1 SCC 228, K.Gopal Reddy Vs. State of A.P., [1979] 1 SCC 355, Tota Singh Vs. State of Punjab, [1987] 2 SCC 529, Ram Kumar Vs. State of Haryana, 1995 Supp [1] SCC 248, Madan Lal Vs. State of J & K, [1997] 7 SCC 677, Sambasivan Vs. State of Kerala, [1998] 5 SCC 412, Bhagwan Singh Vs. State of M.P. [2002] 4 SCC 85, Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., [2002] 6 SCC 470, C. Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC 1, State of Karnataka Vs. K.Gopalakrishna, [2005] 9 SCC 291, State of Goa Vs. Sanjay Thakran, [2007] 3 SCC 755 and Chandrappa Vs. State of Karnataka, [2007] 4 SCC 415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate Court must bear in mind the

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following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

(iii) Though, the powers of the appellate Court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate Court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate Court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate Court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate Court on re-appreciation and re-evaluation of the

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evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate Court in the judgment of the trial Court.

[Underlines added]

18. PW-8 Ramrao Namdeo Andhale was examined

as a panch witness to the recovery of iron rod at

the instance of accused No.10 Shridhar Murkute.

The alleged iron rod appears to have been

recovered from the place accessible and open to

all. It is stated by this witness that the said

iron rod was recovered from the 'Besharmi' trees

situated near Zola Fata.

19. PW-9 Subhash Dnyanoba Chate was a panch

to the seizure panchnama of clothes of Sheshrao

(PW-3) and Adinath (PW-5).

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20. PW-10 Navnath Kishanrao Dhole was the

investigating officer. He deposed about the manner

in which he has carried out the investigation of

the crime. He further deposed that after giving

opinion by the doctor that injured Shriram was

conscious and he could record the statement, he

recorded statement of injured Shriram s/o Sitaram

Mundhe, Exhibit 48-A.

. During his cross-examination, PW-10

Navnath Dhole stated that prior to 22nd November

1990, he was aware that riot cases were lodged

against both the groups of village Zola. He stated

that complainant Dnyanoba Murkute and five other

injured together reached the police station. He

stated that on the same day, accused Laxmanrao

also reached the police station in an injured

condition. He stated that Laxmanrao gave a report

which he reduced in writing at 2.30 p.m. A report

of Dnyanoba Murkute was registered at 3.15 p.m. He

denied that accused Suryakant Patloba came to the

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police station and lodged the report first in

order. He denied that in the F.I.R. Register, the

entry of Laxmanrao Murkute is made prior to the

entry of Dnyanoba Murkute. He denied that the

entries in the F.I.R. Register in the name of

Suryakant Patloba and Lxmanrao Murkute in sequence

were torn and destroyed by him. He admitted that

Page No. 0500399 and 0500400 are missing in the

said F.I.R. Register. He admitted that in F.I.R.

timing 15.15 hours (page No.0492261). He denied

the suggestion that he deliberately prepared a

false record and thereby committed a fraud. He

denied the suggestion that as Laxmanrao lodged a

complaint against him in S.P. Office, he was on

inimical terms with him. He stated that he has not

mentioned as to when the recording of Exhibit 48-A

(dying declaration) was started and when it was

completed. He further stated that doctor orally

certified that the patient was conscious to give a

statement, but doctor actually reduced the

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certificate into writing after the statement of

Shriram Sitaram Mundhe was reduced into writing.

PW-10 Navnath admitted that in a statement of

Shiram Sheshrao Mundhe (Exhibit 48-A) there is no

mention of the fact that the statement was read

over to the witness and the witness accepted its

correctness. He stated that on the spot of

incident he did not notice blood stains on the

ground. He stated that he was under suspension for

nine months in connection with the case registered

against him at Naldurg police station.

21. After perusing the evidence of PW-10

Navnath Dhole, the investigating officer and in

particular, his cross-examination, we find

considerable force in the argument of counsel

appearing for the respective Respondents that to

some extent the Investigating Officer was biased

in his investigation, as the defence has brought

on record that some pages of the F.I.R. Register

were missing, there was over-writing in the F.I.R.

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two rival groups who lodged the complaint first.

Further, the defence has brought on record that

the Investigating Officer has not made genuine and

prompt efforts to call Executive Magistrate to

record dying declaration of Shriram.

22. As already discussed, the prosecution

witnesses have not stated true version of the

incident and only projected one version of the

incident which is favourable to the prosecution.

They have tried to suppress the genesis of the

incident and also suppressed the starting point of

the scuffle taken place between two groups. None

of the prosecution witnesses have stated about the

injuries sustained by the accused persons and in

particular grievous injury i.e. injury No.1

suffered by accused No.1 Laxman, which is stated

by medical officer PW-1 Siddharth in his

deposition. The Supreme Court in the case of

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Lakshmi Singh and others vs. State of Bihar 5 held

that in a murder case, the non-explanation of the

injuries sustained by the accused at about the

time of the occurrence or in the course of

altercation is a very important circumstance from

which the court can draw following inferences:

(1) that the prosecution has suppressed the

genesis and the origin of the occurrence and has

thus not presented the true version; (2) that the

witnesses who have denied the presence of the

injuries on the person of the accused are lying on

a most material point and therefore their evidence

is unreliable; (3) that in case there is a defence

version which explains the injuries on the person

of the accused it is rendered probable so as to

throw doubt on the prosecution case. It is

further held that the omission on the part of the

prosecution to explain the injuries on the person

of the accused assumes much greater importance

where the evidence consists of interested or

5 A.I.R. 1976 S.C. 2263

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inimical witnesses or where the defence gives a

version which competes in probability with that of

the prosecution one. It is further held that there

may be cases where the non-explanation of the

injuries by the prosecution may not affect the

prosecution case. This principle would obviously

apply to cases where the injuries sustained by the

accused are minor and superficial or where the

evidence is so clear and cogent, so independent

and disinterested, so probable, consistent and

credit-worthy, that it far outweighs the effect of

the omission on the part of the prosecution to

explains the injuries. It is further held that on

facts and circumstances the High Court was in

error in brushing aside the serious infirmity in

the prosecution case regarding non-explanation of

injuries sustained by the accused on unconvincing

premises. The same view has been reiterated by the

Supreme Court in the cases of State of Rajasthan

vs. Madho and another6, Rehmat vs. State of

6 1991 Supp.(2) S.C.C. 396

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Haryana7, Padam Singh vs. State of U.P. 8, State of

M.P. vs. Mishrilal (dead) and others 9, Bishna alias

Bhiswadeb Mahato and others vs. State of W.B.10,

Vinod Kumar Sinha vs. State of Bihar 11, Babu Ram

and others vs. State of Punjab 12, State of

Rajasthan vs. Rajendra Singh13, State of Uttar

Pradesh vs. Gajey Singh and another14.

23. It appears from the material brought on

record that the cross-complaint filed by the

accused Laxman and others was tried by the

J.M.F.C., Gangakhed and the case arising out of

the present F.I.R. lodged by the informant

Dnyanoba Nivrutti Murkute was tried by the

Additional Sessions Judge, Parbhani. The Supreme

Court in the case of State of Madhya Pradesh vs.

Mishrilal (Dead), supra, has taken a view that

7 (1996) 10 S.C.C. 346 8 (2000) 1 S.C.C. 621 9 (2003) 9 S.C.C. 426 10 (2005) 12 S.C.C. 657 11 2007 Cri.L.J. 3984 12 (2008) 3 S.C.C. 709 13 (2009) 11 S.C.C. 106 14 (2009) 11 S.C.C. 414

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cross-cases should be tried together by same court

irrespective of nature of offence involved.

Rational behind this is to avoid conflicting

judgments over same incident. It is further

observed that if cross-cases are allowed to be

tried by two courts, there is likelihood of

conflicting judgments. The Supreme Court has also

made detail discussion in Para-7 of the said

Judgment about the procedure to be followed when

there are cross-cases arising out of the same

incident.