The State Of Maharashtra vs Dhondiba And Ors
2017 Latest Caselaw 8016 Bom

                                                      Cri. Appeal No. 122/01
                                       1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 122 OF 2001

       The State of Maharashtra
       Through Police Station Kandhar,
       Tq. Kandhar, Dist. Nanded.                  ....Appellant.
                                             (Ori. Complainant)
               Versus


1.     Dhondiba @ Mitu s/o. Raghoba
       Kamble, Age 35 years,

2.     Kondiba Raghoba Kamble,
       Age 40 years,

3.     Janardhan s/o. Raghoba Kamble,
       Age 26 years,

4.     Manik s/o. Waman Kamble,
       Age 45 years,

5.     Pandu s/o. Gyanoba Kamble,
       Age 35 years,

6.     Kashiram s/o. Mahadu Kamble,
       Age 39 years,

7.     Ramkishan s/o. Kashiram Kamble,
       Age 39 years
       (Abated as per Court Order
       dated 21.6.2007)

8.     Uttam s/o. Kerba Kamble,
       Age 22 years
       (Deleted as per Court Order
       dated 5.7.2007)

       All R/o. Digras (Bk)., Tq. Kandhar,
       Dist. Nanded.                              ....Respondents.
                                               (Ori. Accused 1 to 9)

Mr. V.S. Badakh, APP for appellant.
Mr. S.S. Gangakhedkar, Advocate for respondent Nos. 1 to 5 & 9.




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                                                      Cri. Appeal No. 122/01
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                                CORAM   : T.V. NALAWADE AND
                                          S.M. GAVHANE, JJ.

RESERVED ON : 14/09/2017 PRONOUNCED ON : 11/10/2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed by the State against judgment and

order of Sessions Case No. 76/1998, which was pending in the Court

of learned Additional Sessions Judge, Nanded. The Trial Court has

acquitted the respondents/accused of the offences punishable under

sections 302, 307, 149 of Indian Penal Code ('IPC' for short) and

section 147 of IPC. During the pendency of appeal, respondent No. 7

Ramkishan Kamble died. The case as against respondent No. 8 is

disposed of as he was not tried in trial Court. No appeal is filed

against original accused No. 9 - Shivaji by the State. Thus, the

appeal is as against accused Nos. 1 to 6. Both the sides are heard.

2) In short, the facts leading to the institution of the

appeal, can be stated as follows :-

Deceased Pandit was real brother of first informant

Venkati Kamble (PW 1). The first informant and the deceased had

formed a group of persons playing musical instruments (band) and

they were playing the instruments in various functions and they

were getting charges for that. Accused persons are from the

community of the deceased and the first informant. Both the sides

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are residents of Digras (Bk.), Tahsil Kandhar, District Nanded.

Accused Nos. 1, 2, 3 and 9 are real brothers inter-se. Accused No. 6

is father of accused No. 7.

3) The first incident took place on 18.10.1997 at about 6.00

p.m. in the evening. Accused No. 6 - Kashiram Kamble came to the

first informant and the deceased and questioned them as to why

they were not giving their band for functions of people from

Mangwada. He gave abuses to the first informant and the deceased.

Upon that first informant and deceased said to him that the persons

of Mangwada were not paying charges of band and they were

unnecessarily quarreling and abusing and so, they were not giving

their band for functions of persons from Mangwada.

4) On 19.10.1997 at about 7.30 a.m. when first

informant, his brother Pandit, his brother-in-law Babu and wife

Chandrabhaga were at home, Kashiram came to their house and

informed that near the house of Sarpanch, meeting was arranged as

they were not giving band to persons of Mangwada and they should

come there to attend the meeting. Due to this invitation, the first

informant and the deceased Pandit started proceeding towards

residential place of Sarpanch. The house of Burhan Musalman is

situated on the way. The first informant and the deceased noticed

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that persons like Sarpanch Nagnath Shinde and persons of

Mangwada like nine accused and one Pandurang had gathered there.

Accused No. 6 - Kashiram then started giving abuses to the first

informant and the deceased by saying that they had become

arrogant. When the first informant requested not to abuse, accused

No. 6 said that they were giving band to persons of Kunbi

community and they were not giving band to the persons of own

community and that conduct was not proper. As the first informant

felt that Kashiram had become angry as band was not given for

marriage function of his daughter, he said that on that day, he had

already accepted advance for other function and so, he could not

give band for the function arranged in the family of Kashiram.

Kashiram was not satisfied due to this explanation.

5) The quarrel started due to aforesaid dispute. During

quarrel, abuses were given to the first informant and the deceased.

They also gave abuses to the persons of other side. Then accused

No. 1 - Dhondiba, who was having knife, Suri, gave blow of this

weapon on abdomen of Pandit. He gave many blows to the

deceased. When the first informant Venkati tried to intervene to

save Pandit, accused No. 1 - Dhondiba gave blows to first informant

also by the weapon. Other accused assaulted by using stones.

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6) Due to the blows given with knife, the first informant

sustained bleeding injuries and deceased had also sustained serious

bleeding injuries. The persons like Sarpanch Nagnath Shinde,

brother-in-law of first informant Babu, Bhagirathibai, one cousin

sister of first informant, one Rama, mother of first informant and

many persons from Mangwada had gathered there and they

witnessed the incident, but nobody dared to intervene. Due to the

injuries, the first informant and Pandit collapsed on the spot.

7) Babu, brother-in-law of first informant and mother

Janabai and others shifted the first informant and the deceased to

Khandar Government Hospital in a jeep. In Khandar Government

Hospital, Pandit succumbed to the injuries. The report of Venkati

came to be registered on 19.10.1997 itself in the hospital and it

came to be recorded at about 10.30 a.m. at C.R.No. 144/1997 for

aforesaid offences in Kandhar Police Station. During investigation,

inquest panchanama on the dead body came to be prepared in the

hospital on the same day and the dead body was referred for post

mortem ('P.M.' for short) examination. The P.M. was conducted on

the same day in the Government Hospital Kandhar. Doctor, who

conducted P.M. examination on the dead body, gave opinion that the

death took place due to cardio respiratory failure due to

haemorrhagic shock with intera-abdominal bleeding due to deep

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purporting stab injury in 11th intercostal space right side. The injury

had caused perforation of liver lob and there were three incised

wounds on the dead body which were anti-mortem in nature. Two

incised wounds and one C.L.W. were found on the person of first

informant. During investigation, spot panchanama was prepared and

the statements of eye witnesses and others came to be recorded.

During investigation, the clothes of deceased and injured were taken

over. During investigation, on 22.10.1997 accused No. 1 gave

statement under section 27 of Evidence Act and then he produced

knife, having blood stains from his house. Memorandum of this

statement came to be prepared and weapon came to be seized

under panchanama in the presence of panch witnesses. The articles

recovered were sent to C.A. Office. After completion of investigation,

chargesheet came to be filed against the present respondents and

others for aforesaid offences.

8) The charge was framed for aforesaid offences. Accused

pleaded not guilty. Prosecution examined in all 12 witnesses to prove

the offences. In the statements under section 313 of Cr.P.C., the

defence of total denial was taken by most of the accused persons.

Accused No. 1 Dhondiba took the defence that Venkati had

unnecessarily assaulted him by throwing stone at him which hit him

on head and due to that, he sustained bleeding injury to his head

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and this incident took place in front of Village Panchayat Office of

village Digras.

9) Prosecution has given both direct evidence and

circumstantial evidence. Venkati (PW 1) is injured eye witness. He

has given evidence on the dispute and then he has given evidence

on incident. He has deposed that when accused No. 6 gave message

that meeting was arranged to make discussion about the dispute, he

and deceased started proceeding towards the place of meeting. He

has deposed that information was given that meeting was arranged

in front of Village Panchayat Office and so, they were proceeding

there. He has deposed that when they reached in front of Village

Panchayat, they noticed that all accused persons and Sarpanch

Nagnath were present there. He has given evidence that accused

No. 6 - Kashiram started questioning them as to why they were not

giving band for functions of Mangwada persons. He has deposed that

then the quarrel started and accused No. 1 Dhondiba started

throwing stones at Pandit. He has given evidence that all the

accused then caught hold Pandit and he was virtually dragged

towards dung-pit and there, accused No. 1 Dhondiba gave blows of

knife to Pandit. He has deposed that the blows hit at right ribs and

abdomen. He has deposed that due to injuries, intestine of Pandit

came out and when he went ahead, accused No. 1 gave blows of

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knife on his back. He has deposed that when accused No. 2

attempted to give another blow, the second blow hit his left palm.

He has given evidence that other accused persons like accused No.

3, accused No. 9 and accused No. 5 also assaulted him by using

stones. He has deposed that the incident was witnessed by Sarpanch

Nagnath, Shrirang, Ranba and many other persons. He has deposed

that his brother-in-law Babu, his mother Janabai came there and

they somehow shifted them in a jeep to rural hospital.

10) Venkati (PW 1) has given evidence that in Kandhar

Hospital, he was examined and treatment was given to him and his

statement was also recorded by police. The F.I.R. given by him is

proved as Exh. 39 in his evidence. He has given evidence that he

was indoor patient for 3-4 days due to injuries sustained by him. He

has deposed that his clothes were blood stained and so, the clothes

were taken over by police.

11) To explain the injury which was found on the person of

accused No. 1 Dhondiba, he has deposed that accused No. 3

attempted to give blow of stone to Pandit, but Pandit avoided that

blow and that blow struck to the head of accused No. 1.

12) Venkati (PW 1) has identified his clothes which were

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produced in the Court and he has identified the weapon which was

used by accused No. 1. He has deposed that the distance between

Kandhar and his village Digras is around 22 k.m. He has identified

the accused persons and it is not disputed that this witness knew all

the accused persons from prior to the date of incident.

13) Govind (PW 3) is another eye witness examined by the

prosecution. He has deposed that in the incident, accused No. 1

Dhondiba, accused No. 2 Kondiba, accused No. 8 Uttam had rushed

at deceased. He has deposed that during incident, accused No. 2

had held Pandit, accused No. 3 had given beating to Pandit by using

stone and when Pandit fell down, accused No. 1 gave blows of knife

on abdomen of Pandit. He has given evidence that when Venkati

came forward (to save Pandit), he tried to hold hand of accused No.

1 having knife, Venkati sustained bleeding injuries to his hand. He

has deposed that accused No. 1 Dhondiba then gave blow of knife on

the back of Venkati and due to that, Venkati sustained bleeding

injuries. He has given evidence on presence of Sarpanch on the spot

at the relevant time. This witness belongs to Lingayat community

and not from the community of complainant or Kunbi community.

Thus, he is independent witness and nothing could be brought on

record to create the probability that he is interested witness.

Surprisingly, a suggestion was given to him that he has illicit

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relations with second wife of uncle of Venkati (PW 1). This

suggestion is denied. But, it is difficult to believe that due to such

relationship, he is supporting the complainant's side. In the cross

examination of this witness, it is brought on the record that his

house is situated at the distance of 200 to 300 ft. from the spot of

offence. During extensive cross examination, he gave particulars of

the dispute and also of the incident. His evidence remained

unshattered in the cross examination. During cross examination, it is

suggested to this witness that Venkati had rushed at Dhondiba and

Venkati was holding knife. It is suggested to him that Venkati

wanted to assault Dhondiba, but by mistake knife hit to deceased.

The suggestion is denied. It is already observed that three incised

wounds were found on the dead body. Due to this suggestion, it can

be said that defence is not disputing that Govind (PW 3) was present

on the spot at the relevant time. His statement was recorded on the

next day, immediately and due weight needs to be given to his

evidence. His evidence gives general corroboration to the evidence

of Venkati (PW 1), injured eye witness.

14) Datta (PW 4) has given evidence which is similar to the

evidence of aforesaid two eye witnesses. However, he has given

more particulars of the incident by saying that there was stone

pelting. He wanted to explain the injuries sustained by accused No. 1

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Dhondiba and for that, he has deposed that the stone pelted by

accused No. 3 hit to accused No. 1. However, Datta (PW 4) has given

specific evidence as against accused Nos. 1 by deposing that he not

only assaulted the deceased, but also the first informant with knife.

His evidence also gives general corroboration to the evidence of first

informant. In the cross examination of Datta (PW4), suggestions

similar to the suggestions given to PW 3 are given showing that

defence is not disputing that PW 4 was present on the spot at the

time of incident. Omission in respect of explanation given about

injuries sustained by accused No. 1 is pointed out to this witness and

the omission is proved. This circumstance cannot make much

difference and due to this omission, the remaining part of the

evidence given by PW 4 cannot be discarded.

15) Indirabai (PW 5) is the widow of deceased Pandit. She

has given evidence similar to the evidence of Ventaki (PW 1). She

has deposed that accused No. 1 assaulted both the deceased and

the first informant by using knife and caused injuries. Her cross

examination shows that her presence on the spot is also not

disputed by the defence.

16) Nagnath (PW 6), Sarpanch of the village has not whole

heartedly supported the case of prosecution. He has given evidence

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that both the sides had pelted stones at each other and after the

incident, he saw that deceased and first informant were lying in

injured condition on the spot of incident. His evidence does not

explain the incised wounds sustained by first informant and

deceased. Though the learned prosecutor representing the State did

not cross examine this witness by declaring hostile, that

circumstance does not mean that entire evidence given by this

witness needs to be believed. The falsehood from the evidence of

Nagnath (PW 6) is easily separable. It can be said that he tried to

save the accused persons.

17) If the evidence given by Venkati (PW 1) is compared with

the contents of F.I.R., it can be said that in F.I.R. names of all the

accused persons were mentioned. It was also mentioned that

accused No. 1 had used knife as weapon and he had assaulted the

deceased and the first informant. In F.I.R., he had mentioned the

assault separately made by accused No. 1 and he had not mentioned

that other accused or any of other accused had held either the

deceased or him during the incident to enable accused No. 1 to

make use of weapon against them. Thus, there is omission in

respect of substantive evidence given by PW 1 as against other

accused persons that they had caught hold him and deceased and

then the assault was made on the deceased. However, there is

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corroboration of the contents of F.I.R. under section 156 of Evidence

Act to the evidence given as against accused No. 1. But, there is

omission of aforesaid nature in respect of evidence given as against

remaining accused by PW 1. There was no question of disputing his

presence on the spot and to him, specific suggestion was given that

he was using the weapon and by mistake, the blow given by him had

hit Pandit. It is already observed that three incised wounds were

found on the dead body and so, it does not look probable that

Venkati had used the weapon and his weapon caused injuries to the

deceased as suggested by the defence.

18) During the cross examination of Venkati (PW 1), it is

suggested to him that on the basis of report given by accused No. 1,

the crime was registered against him, deceased and one more

person in respect of the same incident. This suggestion is admitted.

This circumstance again corroborates the version of PW 1 and it

shows that atleast accused No. 1 is not disputing that he was

present on the spot at the relevant time. There is general

corroboration of evidence of other eye witnesses to the evidence of

PW 1 and there is corroboration of circumstantial evidence also.

19) Dr. Chavan (PW 2) had examined PW 1 on the day of

incident i.e. on 19.10.1997 and the evidence of the doctor shows

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that PW 1 was indoor patient till 22.10.1997. He found following

injuries on the person of first informant :-

"(i) Incised stab-wound, ight scapula posteriorly,

1½" x 1" x deep, verticle fresh blood. It was caused

within six hours and by sharp object and was simple in

nature.

(ii) Incised wound left hand palmer aspect distantly

placed obliquely, fresh blood, size 6" x 1/2" x 1/2",

extending from redial aspect of left index finger to

little finger and it was caused within six hours by sharp

object and was simple in nature.

(iii) Contused lacerated wound on right parital

amenals of head, size 2" x 1" x bone deep, fresh

blood, irregular. It was caused within 6 hours by blunt

object and was simple in nature."

M.L.C. prepared by doctor is duly proved as Exh. 38. The first two

injuries are said to be caused by hard and sharp weapon like knife

and the third injury is said to be caused by stone. This evidence

supports the version of PW 1 and it shows that he was present on

the spot when the assault was made on the deceased with knife and

knife was used against them.

20) Dr. Chavan (PW 2) conducted P.M. examination on the

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dead body of Pandit between 1.00 p.m. and 2.30 p.m. on

19.10.1997. He found following injuries on the dead body.

"1. Incised deep purporating stab-wound on right

side chest in 11th intercoastal aspect in middle exillary

line, size 2" x 1½" x deep penitrating upto abdominal

cavity, bleeding present.

2. Incised would on 10th intercoastal space, right

side one inch above the injury No. 1 of the size of 1" x

½" x 1/4" transverse, clotted blood present.

3. Incised wound on left upper arm, size 2" x 1/2"

x 1/4" transverse clotted blood plus."

Doctor has given evidence that aforesaid injuries were anti-mortem

in nature. He has given evidence that internal injuries were also

found which are mentioned in column No. 21 of P.M. report. Due to

such injuries caused on chest and abdomen, peritoneum and

abdominal wall had perforation. The cavity contained 1000 M.L. of

liquid. Due to the injuries, the lower lobe of liver had cut in piece of

size 3 cm x 2 cm. and it was triangular in shape. The liver had

become pale. He has given evidence that the death took place due

to cardio rispiratory failure due to haemorrhagic shock caused by

aforesaid injuries and intra-abdominal bleeding. He has given

evidence that the injuries found on the dead body can be caused by

knife like Article No. 21 and they were all anti-mortem in nature. He

Cri. Appeal No. 122/01

has given evidence that these injuries are sufficient to cause death

in ordinary course of nature. In the cross examination of Dr. Chavan

(PW 2), some hypothetical questions were put to ascertain the

directions in which the blows were given. That cross examination

need not be discussed as it was hypothetical in nature. The P.M.

report at Exh. 37 is proved in his evidence and it is consistent with

the substantive evidence.

21) The inquest panchanama at Exh. 47 is proved in the

evidence of panch witness Bhagwan (PW 8). The tenor of the cross

examination shows that this evidence is not seriously disputed. This

evidence is consistent with the aforesaid medical evidence. This

Court has no hesitation to hold that this evidence is more than

sufficient to hold that it is homicide. The evidence also proves that

the first informant sustained simple injuries in the incident and they

were caused by using knife as weapon. This evidence is consistent

with the evidence given by Venkati (PW 1) against accused No. 1.

22) Padmakar (PW 7), panch witness is examined to prove

the seizure of clothes of first informant. As it is not disputed that the

first informant had sustained bleeding injuries, the evidence of this

witness and panchanama, Exh. 46 need not be discussed in detail.

Dadarao (PW 10) is a panch witness on the seizure of clothes of the

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deceased and the panchanama is at Exh. 54. This evidence also

need not be discussed in detail. There was blood on the clothes of

the first informant and the deceased.

23) In the evidence of Shivaji (PW 9), the spot panchanama

is proved as Exh. 49. This evidence shows that Mariba, uncle of first

informant showed the spot to police. There was blood on the spot

and there was blood on two stones, having weight of 200 and 5000

grams. Police collected the stones and earth sample mixed with

blood from the spot. It appears that much was argued in the Trial

Court on the scene of offence and it was submitted that the evidence

of PW 1 is not consistent as he had mentioned other spot like the

space in front of house of Burhan Musalman. The evidence of

Investigating Officer and other evidence shows that there is not

much distance between the spot mentioned in the F.I.R. and the spot

shown in the spot panchanama and the house is situated at the

distance of 100 to 150 ft. from the Village Panchayat Office. The

incident started on the road and there was pelting of the stones. The

incident took place in a broad day light and the other side is

admitting that some incident did take place. Due to these

circumstances not much weight can be given to the aforesaid so

called inconsistency which is not that material. Thus, the evidence of

spot panchanama gives necessary corroboration to the version of PW

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1.

24) In the evidence of panch witness Baburao (PW 12), the

prosecution has proved the statement given by accused No. 1 under

section 27 of Evidence Act to police on 22.10.1997. Accused gave

statement that he had concealed the weapon in his house. Evidence

is given that accused took the police and panchas to his house and

from their, he produced the knife, Article No. 21. Memorandum of

statement is proved as Exh. 60 and panchanama is proved as Exh.

61-A. There is evidence on this statement and seizure from Mogal

(PW 11), Investigating Officer. The evidence of Baburao does not

show that he has any interest either in favour of the complainant's

side or against the accused persons. He is resident of Bahadderpura,

Tahsil Kandhar. His evidence and seizure panchanama show that

there was blood on the knife, Article No. 21. This evidence is also

consistent with the evidence of PW 1 and it can be used as against

accused No. 1 as one incriminating circumstance.

25) On the weapon shown to be recovered from accused No.

1 human blood was detected and it can be seen in C.A. report at

Exh. 66. Mogal (PW 11), the Investigating Officer has given evidence

that the property was sent by him to C.A. Office with covering letter

dated 18.11.1997. There is no explanation given by accused No. 1

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on this circumstance.

26) The presence of first informant on the spot of offence at

the relevant time is not disputed. Presence of all other eye witnesses

is also not disputed, though it was argued that their names were not

mentioned in F.I.R. by Venkati (PW 1). Sarpanch Nagnath did not

support the prosecution, but falsehood can be separated from his

evidence and remaining part of evidence shows that incident did

take place on the spot shown in the spot panchanama. There is also

evidence on motive and it can be said that it was serious motive for

the accused persons as the deceased was not supplying band for the

functions to the persons of Mangwada, persons of their own

community as they were not getting money from them. Complainant

side was giving band to the persons of other community for making

money. Accused are relatives also of complainant side.

27) The evidence given as against remaining accused is

vague. Allegations are made that they used stones as weapon. The

evidence discussed shows that only PW 1 sustained one injury, which

can be caused by stone, but he is not specific as to who caused that

injury. There is improvement made by PW 1 in his version, if his

version is compared with F.I.R. and that is already discussed. That

improvement amounts to contradiction and so, that part of evidence

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given as against remaining accused cannot be used. He had

mentioned the names of accused persons in the F.I.R., but he had

not attributed specific role of holding of deceased by them in the

F.I.R. To that extent, there was the omission.

28) In the evidence of other eye witnesses, there are some

inconsistencies as some eye witnesses have given different number

of blows of knife given by accused No.1, but that inconsistency is not

that material. The evidence of other eye witnesses, who had

gathered there can be used for the purpose of general corroboration

and that evidence gives corroboration so far as the evidence as

against accused No. 1 which is given by PW 1 is concerned. They

have stated that it is the accused No.1, who only used weapon like

knife in the incident and he assaulted both the deceased and the

first informant.

29) The benefit of the aforesaid circumstances like omission

in previous version, vagueness and inconsistencies can be given to

accused Nos. 2 to 6. But, such benefit cannot be given to accused

No. 1. When others were allegedly pelting stone, it is accused No. 1,

who used the weapon and blows were given on chest and abdomen

of the deceased of knife by accused No. 1. On the basis of evidence

available on record, this Court holds that prosecution has proved

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beyond reasonable doubt that the injuries found on the person of

first informant and the dead body which are described as incised

wounds along with internal injuries caused by surface wounds to the

deceased were caused by accused No. 1. Considering the site of the

body, where the injuries were caused and the number of blows

given, this Court holds that injuries were inflicted either with the

intention to finish the deceased or there was intention to inflict such

injuries which would be sufficient in ordinary course of nature to

cause the death. Such inference is available. Thus, it was intentional

act of the accused No. 1 and so, his act is punishable under section

302 of IPC.

30) Accused No. 1 caused simple injuries though by knife to

the first informant. The evidence on the record shows that first

informant had intervened to save the deceased. Due to that, he

sustained injuries to one hand and to his back. The evidence on the

record does not show that there was intention to finish the first

informant. So, this Court holds that there was intention to cause

hurt by using weapon like knife and by causing injuries, the accused

No. 1 has committed the offence punishable under section 324 of

IPC. It is lessor offence of the offence punishable under section 307

of IPC for which charge was framed against accused No. 1. The

aforesaid evidence shows that both the sides were there, but the

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unlawful assembly was not formed to commit the murder of Pandit

or use weapon like knife for assault and such object was not

developed on the spot. Only one person, accused No. 1, was having

knife and he used it. Thus, the other accused cannot be involved by

using provision of section 149 of IPC and it is accused No. 1, who

only can be convicted and punished for his acts, which amount to

offences punishable under sections 302 and 324 of IPC.

31) The Trial Court has given acquittal by giving some reason

which cannot sustain in law. Hereinafter, this Court is quoting the

reasons given by the Trial Court along with the reasons of this Court

to show that the Trial Court has committed error in giving decision of

acquittal in favour of accused No. 1.

(i) The Trial Court has observed that the witnesses

named in the F.I.R. are not examined and witnesses who

were not specifically named in the F.I.R. are examined and

due to that inference needs to be drawn against the

prosecution.

This observation is not correct. Sarpanch

named in the F.I.R. is examined. In the F.I.R., it was also

mentioned that many persons had gathered at the spot of

incident. Considering the distance between the residential

places of the witnesses and the spot of offence, it cannot

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be said that they had no opportunity to witness the

incident. The incident took place in the early hours of the

morning. Further, the defence, in the cross examination did

not dispute seriously that these witnesses were present on

the spot at the time of incident. On the contrary, some

suggestions were given to them to create a possibility in

favour of the accused persons. The statements of these

witnesses were recorded immediately by police and there

was no room for concoction. Further, in case like present

one, when number of witnesses are available, the

prosecution cannot be expected to examine all the

witnesses and it can examine only few witnesses. In the

present case, the main witness, the first informant is

examined and there is sufficient corroboration to the direct

evidence given by this witness.

(ii) The Trial Court has observed that the injury

sustained by accused No. 1 Dhondiba is not explained by

prosecution.

This observation is also not correct. Dhondiba

himself has contended in the statement given under section

313 of Cr.P.C. that he sustained injury due to stone which

was hit by Venkati (PW 1). No record of injury like M.L.C. is

produced and so, it can be said that it was simple injury.

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The circumstances like presence of two stones having blood

stains mentioned in the spot panchanama is already quoted

and relevant evidence of the witnesses is also mentioned.

Due to these circumstances, it cannot be said that the

prosecution has not explained the circumstances of

sustaining injury by accused No. 1 in the incident. The

circumstance that Dhondiba is admitting that he sustained

injury in the incident shows that he is admitting his

presence on the spot at the time of incident.

(iii) The Trial Court has given over much importance

to the improvement made by first informant and some eye

witnesses in the substantive evidence. They have given

evidence as against other accused that they had held

deceased when accused No. 1 assaulted the deceased by

knife.

If there is such improvement or there was

omission in the previous statement, the Trial Court could

have easily separated that part of evidence from other

evidence. Further, there was no other circumstantial check

to the evidence given as against other accused and so, the

falsehood or exaggeration is easily separable. The Trial

Court did not make such attempt. This Court holds that the

Trial Court has committed error in using this circumstance

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against the prosecution. At the most, benefit of this

circumstance can be given to accused No. 2 to 6, but the

benefit cannot be given to accused No. 1.

(iv) The Trial Court has given much importance to

the evidence of Nagnath, Sarpanch (PW 6) as he has not

whole heartedly supported the prosecution. The Trial Court

has observed that this witness is not declared hostile and

so, necessary weight needs to be given to his evidence.

Such observation cannot sustain in law. It is the

job of every court and more particularly of Trial Court to

appreciate the oral evidence on the background of other

evidence. The evidence needs to be analysed by Court to

ascertain as to whether evidence given on a particular fact

is true or false. Necessary observations are already made

by this Court in respect of the evidence of Sarpach. This

Court has held that Sarpach did not come out with

complete truth. His evidence does not explain sustaining of

incised wounds. Thus, it was not possible to believe

Sarpanch (PW 6) in respect of his evidence that there was

only pelting of stones. The incident took place in a broad

day light and it can be said that he tried to save the

accused persons.

(v) The Trial Court has given some importance to

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the discrepancies in contents of F.I.R. in relation to the spot

shown in the spot panchanama.

On this point also the Trial Court has committed

error. Both the sides admit that the incident did take place

at the place shown in the spot panchanama. The spot is

situated near Village Panchayat Office. The house of Burhan

Musalman is shown at the distance of around 100 ft. from

the Village Panchayat Office. Evidence is given that first

informant and deceased were passing by the side of house

of Burhan Musalman. In view of these circumstances, the

Trial Court ought to have held that this discrepancy has not

created reasonable doubt about the versions given by PW

1 and other eye witnesses.

(vi) The Trial Court given much importance to the

circumstance that the blood group of deceased and injured

was not determined by C.A. office.

This circumstance also has not crated

reasonable doubt about the versions given by PW 1 or

other witnesses. It is already observed that defence has

not disputed that the first informant sustained injuries in

the incident and the deceased also sustained injuries in the

same incident. In view of these circumstances, it was not

necessary to prove that the first informant and the

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deceased were having blood of particular group.

(vii) The Trial Court has considered the circumstance

like recovery of weapon on 22.10.1997 when accused No. 1

was arrested on 19.10.1997 against the prosecution. Due

to this circumstance, the Trial Court has observed that

suspicion is created about the recovery of weapon on the

basis of statement given under section 27 of Evidence Act.

One more circumstance like absence of signature of

accused No. 1 on this statement is held against

prosecution.

There is no law requiring that signature of the

accused should be obtained on the statement and further

under section 162 of Cr.P.C. such signature is not to be

obtained. The statement is admissible under section 27 of

the Evidence Act. On the recovery of weapon, there is

independent evidence of panch witness as already

discussed. Thus, there was no hurdle in using the evidence

given on the recovery of weapon on the basis of statement

given by accused No. 1 and this circumstance can be

definitely used as corroborative piece of evidence. The Trial

Court has committed error in discarding this piece of

evidence also. Even if this piece of evidence is excluded,

the fate of the matter cannot change as there is direct

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evidence, which is of convincing nature. Whenever there is

direct evidence which is convincing in nature, absence of

recovery of weapon cannot go to the root of the matter.

(viii) The Trial Court has discarded the evidence on

motive given by the prosecution witnesses. The Trial Court

has considered the circumstance that marriage in the

family of accused No. 6 had already taken place and he

could not have grievance about it.

When there is evidence to show that it was

grievance of many persons living in Mangwada, of the

community of the first informant that the first informant

and the deceased were not giving the band of music for

their functions, it can be said that the persons of the

community of the first informant had the grievance and

that was the motive for the persons who picked up the

quarrel on that day. Their grievance was serious in nature

as deceased and first informant were giving band to the

persons of other community like Kunbi for making money

They were not getting money from the persons of their own

community and so, they were not giving band to the

persons of their own community. On every fact, even on

motive, the evidence as a whole needs to be considered.

Thus, the Trial Court has committed error in observing that

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there is no convincing evidence on motive. In any case,

when there is direct evidence, motive does not play that

important role and this position of law is ignored by the

Trial Court.

(ix) The Trial Court has committed serious mistake

in observing that no blood was found on the knife.

The evidence on the record shows that Article

No. 21, knife was recovered on the basis of statement

given by accused No. 1. The statement is proved as Exh.

60 and seizure panchanama is proved as Exh. 60-A. In

panchanama there is clear mention that blood was present

on knife. C.A. report is also consistent. Thus, it can be said

that the Trial Court did not go through record and apply the

mind in appreciating the evidence. The evidence was not

properly analysed.

32) The learned counsel for respondents/accused placed

reliance on the observations made by this Court and Apex Court in

some cases which are as under :-

(i) 2015 (3) Bom.C.R. (Cri.) 797 [State of

Maharashtra and anr. Vs. Surekha Umakant Kasale] -

Facts of this case were totally different.

            (ii)     AIR 1995 SUPREME COURT 2345 [Jackaran





                                                     Cri. Appeal No. 122/01

Singh Vs. State of Punjab] - In that case, the panch

witness was not examined and so, the observations were

made.

(iii) AIR 2007 SUPREME COURT 28 [Samghaji Hariba

Patil Vs. State of Karnataka] - The facts of this matter

were altogether different and accused was friend of the

deceased and the Court found that the story given was not

probable in nature.

(iv) AIR 2010 SUPREME COURT 762 [Musheer Khan

@ Badshah Khan and Anr. Vs. State of M.P.] - The

facts of this case were also different and there was no

injured eye witness with prosecution. There was question

of identity of the accused persons as the witnesses did not

know the accused persons prior to the date of incident.

(v) AIR 2009 SUPREME COURT 1542 [State of

Punjab Vs. Sukhchain Singh and Anr.] - In this case,

the Apex Court has discussed the power of the Appellate

Court and it is observed that when there is acquittal in

favour of the accused, presumption of innocence is

reinforced. There cannot be dispute over this proposition

and other propositions made in the cases cited for the

learned counsel for accused.

Cri. Appeal No. 122/01

33) In the case reported as AIR 1973 (SC) 2622 [Shivaji

Sahebrao Bobade Vs. State of Maharahtra], the Apex Court has

made following observations :-

"In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on compelling and substantial reasons and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State, (1952) SCR 193 = (AIR 1952 SC

52) Ajmer Singh v. State of Punjab, (1953) SCR 418 = (AIR 1953 SC 76) Puran v. State of Punjab, AIR 1953 SC 4590. The use of the words compelling reasons embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words compelling reasons. In later years the Court has often avoided emphasis on compelling reasons but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which compelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable (Vide Chinta v. The State of Madhya

Cri. Appeal No. 122/01

Pradesh, Criminal Appeal No. 178/1959 decided on 18.11.1960 (SC), Ashrafkha Haibatkha Pathan v. The State of Bombay, Criminal Appeal No. 38 of 1960 decided on 14.12.1960 (SC).)

"..............On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a courts duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."

34) In view of the evidence of the present matter, this Court

has no hesitation to hold that offence as against accused No. 1 is

proved beyond all reasonable doubt. The Trial Court has committed

serious error in not analysing the evidence and has given excuses

which are not tenable in law for discarding the material evidence. In

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view of the observations made in the case of Shivaji cited supra,

this Court holds that interference is warranted in the decision of the

Trial Court so far as appeal as against accused No. 1 Dhondiba is

concerned. In the result, following order :-

ORDER

Dhondiba @ Mitu s/o. Raghoba Kamble is allowed. The

judgment and order of acquittal given by the Trial Court in

favour of accused No. 1 is hereby set aside.

(II) Accused No. 1 Dhondiba @ Mitu s/o. Raghoba

Kamble stands convicted for offence punishable under

section 302 of IPC for murder of Pandit. He is sentenced to

suffer life imprisonment and to pay fine amount of Rs.500/-

(Rupees five hundred). In default of payment of fine, he is

to further undergo rigorous imprisonment for one month.

(III) Accused No. 1 Dhondiba @ Mitu s/o. Raghoba

Kamble stands convicted for offence punishable under

section 324 of IPC for causing hurt to first informant

Venkati by using knife and for that offence, he is sentenced

to suffer rigorous imprisonment for one year and to pay

fine amount of Rs.250/- (Rupees two hundred fifty). In

default of payment of fine, he is to further undergo

rigorous imprisonment for fifteen days.

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(IV) The substantive sentences given to accused No.

1 to run concurrently.

(V) Accused No. 1 is entitled to set off in respect of

the period for which he was behind bars in this crime. This

period is to be mentioned by the office in the conviction

warrant which is to be sent to the Jail authority.

(VI) Accused No. 1 to surrender his bail bonds for

undergoing the sentence.

(VII) The appeal as against remaining respondents/

accused stands dismissed.

(VIII) Record and the property is to be preserved as

one accused is not yet tried.

(IX) Copy of this judgment is to be given to accused

No. 1 free of cost.

             [S.M. GAVHANE, J.]                   [T.V. NALAWADE, J.]




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