Bombay High Court
Kisan Vitthal Raut And Ors vs The State Of Maharashtra on 7 September, 2017
Bench: V.K. Tahilramani
1/82 apeal.563&603.2005(F).doc
nsc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.563 OF 2005
1. Mahadeo Saudagar Gidde
Age. 42 years, Occ.: Agriculture
2. Sarjerao Pralhad Raut,
Age. 38 years, Occ.: Agriculture
3. Suresh Rajaram Sarde
Age. 40 years, Occ.: Agriculture
4. Shantabai Ganpat Gidde,
Age. 47 years, Occ.: Household
5. Dattatraya Saudagar Gidde
Age. 36 years, Occ.: Agriculture
6. Hanmant Eknath Laad,
Age. 23 years, Occ.: Agriculture
7. Suryabhan Bhagwan Ubale,
Age. 45 years, Occ.: Agriculture
8. Tukaram Rajaram Sarde,
Age. 53 years, Occ.: Agriculture
R/o. Sapatne-Bhose, Tal.Madha,
District-Solapur.
9. Shobha Yuvraj Raut,
Age. 19 years, Occ. :Household,
R/o.Sapatne, Tal.Madha, ...Appellants
District-Solapur (Orig. Accused Nos.1,
3, 5, 6, 9, 10, 11, 14
and 15 respectively)
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Versus
The State of Maharashtra,
(At the instance of Madha Police Station,
District - Solapur). ...Respondent
WITH
CRIMINAL APPLICATION NO.1385 OF 2016
(For Cancellation of Bail)
IN
CRIMINAL APPEAL NO.563 OF 2005
The State of Maharashtra
(Through vide C.R.No.49 of 2003,
registered with Madha Police Station, ...Applicant
Solapur (Rural) (Orig. Respondent)
Versus
Mahadeo Saudagar Gidde
Age 45 years, Occ : Agriculture,
R/at Saptane Bhos, ...Respondent
Tal. Madha, District - Solapur. (Orig. Accd. No.1)
WITH
CRIMINAL APPEAL NO.603 OF 2005
1. Kisan Vitthal Raut,
Age. 20 years, Occ.: Agriculture
2. Ganpat Rajaram Sarde,
Age. 47 years, Occ.: Agriculture
3. Hanmant Ganpat Gidde,
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Age.23 years, Occ.: Agriculture
4. Balaji Ganpat Gidde,
Age. 20 years, Occ.: Household
5. Yuvraj Suresh Raut,
Age. 28 years, Occ.: Agriculture
6. Bibhishan Vitthal Raut,
Age. 25 years, Occ.: Agriculture
R/o. Sapatne-Bhose, Tal. Madha,
District-Solapur. ... Appellants.
(Orig. Accused Nos.2,
4, 7, 8, 12 and 13
respectively)
Versus
The State of Maharashtra,
(At the instance of Madha Police Station,
District - Solapur). ...Respondent
WITH
CRIMINAL APPLICATION NO.1384 OF 2016
(For Cancellation of Bail)
IN
CRIMINAL APPEAL NO.603 OF 2005
The State of Maharashtra
(Through vide C.R.No.49 of 2003,
registered with Madha Police Station, ...Applicant
Solapur (Rural) (Orig. Respondent)
Versus
1. Hanmant Ganpat Gidde,
Age 45 years, Occ : Agriculture.
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2. Yuvraj Suresh Raut,
Age 41 years, Occ : Agriculture.
3. Bibhishan Vitthal Raut,
Age 40 years, Occ : Agriculture.
All the above R/at Saptane Bhos, ...Respondents
Tal. Madha, District - Solapur. (Orig. Accd. Nos.7,
12, 13)
Mr.Shirish Gupte, Senior Advocate a/w Mr.B.R.Patil and
Ms.U.V.Kejriwal i/b Mr.M.A.Chaudhari, for the Appellants in
Criminal Appeal Nos.563 of 2005 and 603 of 2005 and for the
Respondents in Criminal Application Nos.1384 and 1385 of 2016.
Mr. H. J. Dedia, A.P.P for the State.
Mr.Jaydeep Mane, for the Original Complainant.
CORAM : SMT.V.K.TAHILRAMANI &
REVATI MOHITE DERE, JJ.
RESERVED ON : 3rd MAY, 2017
PRONOUNCED ON : 7th SEPTEMBER, 2017
JUDGMENT (Per Revati Mohite Dere, J.) :
1. Criminal Appeal No.563 of 2005 is preferred by
nine accused i.e. Mahadeo Saudagar Gidde (original accused
no.1), Sarjerao Pralhad Raut (original accused no.3), Suresh
Rajaram Sarde (original accused no.5), Shantabai Ganpat Gidde,
(original accused no.6), Dattatraya Saudagar Gidde (original
5/82 apeal.563&603.2005(F).doc
accused no.9), Hanmant Eknath Laad, (original accused no.10),
Suryabhan Bhagwan Ubale (original accused no.11), Tukaram
Rajaram Sarde (original accused no.14) and Shobha Yuvraj Raut,
(original accused no.15) and Criminal Appeal No.603 of 2005
is preferred by six accused i.e. Kisan Vitthal Raut (original
accused no.2), Ganpat Rajaram Sarde (original accused no.4),
Hanmant Ganpat Gidde, (original accused no.7), Balaji Ganpat
Gidde (original accused no.8), Yuvraj Suresh Raut (original
accused no.12) and Bibhishan Vitthal Raut (original accused
no.13). Hereinafter, for the sake of convenience, we shall refer
to the appellants by their names and numbers i.e. original
accused numbers as set out in the Sessions Case.
2. The aforesaid two criminal appeals are directed
against the Judgment and Order dated 29 th April, 2005, passed
by the learned 2nd Additional Sessions Judge, Solapur, in Sessions
Case No.58 of 2004, convicting and sentencing the appellants,
for the offences stated hereinunder:-
− Kisan Vitthal Raut (A2), Ganpat Rajaram Sarde, (A4)
Hanmant Ganpat Gidde (A7) and Yuvraj Suresh Raut
(A12), for the offence punishable under Section 302 r/w
6/82 apeal.563&603.2005(F).doc
149 of the Indian Penal Code, to suffer rigorous
imprisonment for life and to pay a fine of Rs.500/- each, in
default to suffer rigorous imprisonment for fifteen days
(for the death of Machindra Mahadeo Garad);
− Mahadeo Saudagar Gidde (A1), Sarjerao Pralhad Raut (A3),
Suresh Rajaram Sarde (A5), Shantabai Ganpat Gidde, (A6),
Balaji Ganpat Gidde (A8), Dattatraya Saudagar Gidde,
(A9), Hanmant Eknath Laad (A10), Suryabhan Bhagwan
Ubale (A11), Bibhishan Vitthal Raut (A13), Tukaram
Rajaram Sarde, (A14) and Shobha Yuvraj Raut, (A15), for
the offence punishable under Section 324 r/w 149 of the
Indian Penal Code, to suffer rigorous imprisonment for two
years (for the assault on Machindra Mahadeo Garad);
− Kisan Vitthal Raut (A2), Ganpat Rajaram Sarde (A4), Balaji
Ganpat Gidde (A8), Yuvraj Suresh Raut (A12), Bibhishan
Vitthal Raut (A13), for the offence punishable under
Section 307 r/w 149 of the Indian Penal Code, to suffer
rigorous imprisonment for seven years and to pay a fine of
Rs.500/- each, in default to suffer rigorous imprisonment
for fifteen days (for the assault on Tanaji Mahadeo Garad);
− Mahadeo Saudagar Gidde (A.1), Sarjerao Pralhad Raut
(A3), Suresh Rajaram Sarde (A5), Shantabai Ganpat
Gidde, (A6), Hanmant Ganpat Gidde (A7), Dattatraya
Saudagar Gidde, (A.9) Hanmant Eknath Laad (A10),
7/82 apeal.563&603.2005(F).doc
Suryabhan Bhagwan Ubale (A11), Tukaram Rajaram Sarde
(A14) and Shobha Yuvraj Raut, (A15) for the offence
punishable under Section 324 r/w 149 of the Indian Penal
Code, to suffer rigorous imprisonment for one year and to
pay fine of Rs.200/- each, in default to suffer rigorous
imprisonment for one week (for the assault on Tanaji
Mahadeo Garad);
All the appellants are convicted for the offences
punishable, under Section 147 r/w 149 and under Section
148 r/w 149 of the Indian Penal Code, however, no
separate sentence was awarded for the said offences in
view of the sentence imposed on them for other offences.
− Mahadeo Saudagar Gidde (A1), Sarjerao Pralhad Raut (A3),
Suresh Rajaram Sarde (A5), Shantabai Ganpat Gidde, (A6),
Dattatraya Saudagar Gidde (A9), Hanmant Eknath Laad
(A10), Suryabhan Bhagwan Ubale (A11), Tukaram Rajaram
Sarde (A14) and Shobha Yuvraj Raut (A15), for the
offence punishable under Section 323 r/w 149 of the
Indian Penal Code, to suffer rigorous imprisonment for two
months (for the assault on Navnath Mahadeo Garad);
− Hanmant Ganpat Gidde (A7), for the offence punishable
under Section 504 of the Indian Penal Code, to suffer
rigorous imprisonment for one month and to pay a
fine of Rs.200/- in default to suffer rigorous imprisonment
8/82 apeal.563&603.2005(F).doc
for one week;
(All the sentences were directed to be run concurrently)
All the appellants were however acquitted of the offence
punishable under Section 135 of the Bombay Police Act.
3. The prosecution case in brief is as under:-
The complainant-Navnath Mahadeo Garad was
residing at village Laul, Taluka Madha, Solapur, with his parents,
wife, children and brothers. Out of Navnath's three sisters, one
sister-Yashoda was married to Mukunda Sawant, a resident of
Sapatane-Bhose, Taluka-Madha, Solapur. Yashoda was residing
with her husband and children at Sapatane and was doing
agricultural work. Eight days prior to the date of the incident,
Yashoda is stated to have come to Navnath's (complainant's)
house with her husband-Mukunda and disclosed that Hanmant
Ganpat Gidde (A7), Shantabai Ganpat Gidde (A6) and their
family members were abusing them and had even assaulted
them, for not attending their agricultural work. Yashoda is also
stated to have disclosed to the complainant and the family that
9/82 apeal.563&603.2005(F).doc
Hanmant Gidde (A7), and his family members were threatening
to kill them. Navnath, his brothers and parents pacified Yashoda
and her husband and sent them back to Sapatane. According to
the prosecution, on 20th November, 2003, Yashoda again came
to Village-Laul and disclosed to Navnath (complainant), that
Hanmant Gidde (A7) had assaulted her, pursuant to which
Navnath escorted his sister to Sapatane at about 8.00 p.m.,
and dropped her home. Thereafter, Navnath went to Hanmant
Gidde's house and asked why he was ill-treating his sister and
brother-in-law and requested him not to ill-treat them. It is
alleged that Hanmant Gidde (A7) and his mother Shantabai (A6)
abused Navnath, pursuant to which Navnath asked them not to
abuse him and told them, that if his sister and brother-in-law had
committed any mistake, then he would bring them, and make
them tender an apology. Thereafter, Navnath is stated to have
gone to Kurduwadi and then returned to Laul at about 9.00 p.m.
According to Navnath, while returning to Laul, at Bhosare-
Ghatne, Hanmant Gidde (A7), Balaji (A8) and Dattu Gidde (A9)
assaulted him. Navnath on his return to Laul, disclosed the said
incident to his parents and brothers. On the next day i.e. 21 st
10/82 apeal.563&603.2005(F).doc
November, 2003 at about 7.00 a.m., Navnath lodged a complaint
with the Kurduwadi Police Station and returned to Laul at about
10.00 a.m.
On the same day i.e. 21st November, 2003 at about
10.30 - 11.00 a.m; Navnath, his brothers-Tanaji and Machindra
and brother-in-law - Santosh Bedge left Laul, to attend the
marriage ceremony of Satish Krushna Gholap's daughter. On the
way, they visited Sapatane, to settle the dispute between
Hanmant Gidde (A7) and Yashoda. Navnath and others visited
Yashoda's house and thereafter, proceeded to Hanmant Gidde's
(A7's) house, situated by the Sapatane-Laul road. According to
the prosecution, when Navnath, Tanaji, Machindra and Santosh
reached Hanmant Gidde's (A7's) vasti, they saw Hanmant Gidde
(A7) and all the other accused coming in their direction. The said
persons are stated to have been armed with swords, sickles, iron
rods, axes and sticks. It is alleged that Hanmant Gidde (A7)
started abusing Navnath (complainant) and his brothers and
asked Navnath, whether he had brought his brothers and
brother-in-law to assault them. Hanmant Gidde (A7) is thereafter
stated to have assaulted Machindra on his head with a sword.
11/82 apeal.563&603.2005(F).doc
Balaji Gidde (A8) is also stated to have assaulted Tanaji with a
sickle on his head. When, Navnath and his brother-in-law
requested the accused not to assault Tanaji and Machindra, the
accused allegedly continued to assault them, pursuant to which,
both Tanaji and Machindra fell down. When Navnath and his
brother-in-law tried to save Tanaji and Machindra, some of the
accused allegedly assaulted Navnath and his brother-in-law-
Santosh with sticks and iron rod. Navnath (PW 10) and Tanaji
(PW 5) have in detail disclosed the assault. On hearing hue
and cry, Yashoda, her family members and other villagers came
to the spot, pursuant to which the accused left the spot. Navnath
with the help of others, took his brothers i.e. Tanaji and
Machindra for medical treatment to Kurduwadi.
Machindra was first taken to Dr.Wagle's Hospital and
then to S.P. Institute of Neurosciences, Solapur, as Dr.Wagle
had expressed his inability to give treatment. Both, Tanaji and
Machindra were taken to S.P. Institute of Neurosciences, Solapur,
in an unconscious condition. Tanaji is alleged to have regained
consciousness only on 24th November, 2003.
In the meantime, on the basis of the complaint lodged
12/82 apeal.563&603.2005(F).doc
by Navnath on 21st November, 2003, investigation commenced.
The police visited the spot, prepared the spot panchanama
(Exhibit - 26), seized the soil mixed with blood from the spot and
arrested the accused. The clothes of some of the accused were
seized. The police also seized the clothes of the complainant-
Navnath, injured-Tanaji and Machindra (deceased).
Whilst in custody, some of the appellant - accused
showed their willingness to produce weapons which were
concealed by them, pursuant to which weapons were recovered.
On 29th November, 2003, Machindra expired at S.P.
Institute of Neurosciences, Solapur, and hence Section 302 was
added. Accordingly, the police drew the inquest panchanama.
The said inquest panchanama is at Exhibit - 24. The dead body
of Machindra was sent to the Civil Hospital, Solapur for
postmortem alongwith the inquest panchanama. On 30 th
November, 2003, Dr.Kamble (PW 8) performed the postmortem
on deceased Machindra. The probable cause of death was stated
to be 'Head Injury". The postmortem report, is at Exhibit - 46.
The Investigating Officer sent the seized articles to the Chemical
Analyser, Pune. After completion of the investigation, charge-
13/82 apeal.563&603.2005(F).doc
sheet was filed in the Court of the learned Judicial Magistrate
First Class, Madha, as against the appellants alleging offences
punishable under Sections 147, 148, 149, 302, 307, 324, 504,
506 of the Indian Penal Code (for short 'I.P.C.') and under Section
135 of the Bombay Police Act. As the offences were exclusively
triable by the Court of Sessions, the case was committed to the
Court of Sessions, Solapur.
The appellants pleaded not guilty and claimed to be
tried. Their defence was that of total denial and false implication.
The prosecution in support of its case examined 13
witnesses. PW 1-Suresh Bajrang Salve, panch to the inquest
panchanama (Exhibit - 24), PW 2- Laxman Tayappa Raut, panch
to the spot panchanama (Exhibit-26), PW 3-Shiwaji Govind Sathe
and PW 4-Bhiva Mahadu Gadde, Panchas to the seizure of
weapons and clothes at the instance of some of the accused
were declared hostile; PW 5-Tanaji Mahadeo Garad, an injured
eye witness; PW 6-Ashok Bhagwan Gavali, panch to the seizure
of clothes of the injured and the deceased was also declared
hostile; PW 7-Dr.Anwar Moulali Shaikh, the Resident Medical
Officer of S.P. Institute of Neurosciences, Solapur, who examined
14/82 apeal.563&603.2005(F).doc
Machindra (deceased) on 21st November, 2003 and treated him;
PW 8-Dr.Suryakant Baburao Kamble, the Medical Officer, Civil
Hospital, Solapur who conducted the postmortem on deceased
Machindra; PW 9-Dr.Pravin Vishnupanth Ingale, the Resident
Medical Officer of S.P. Institute of Neurosciences, Solapur, who
examined Tanaji Garad on 21st November, 2003 and issued the
injury certificate, which is at Exhibit - 49; PW 10-Navnath
Mahadeo Garad, complainant and injured eye witness, who
lodged the FIR dated 22nd November, 2003, which is at Exhibit -
53; PW 11 - Maqbool Dastagir Tamboli, the police constable
Madha Police Station, who carried the articles to the Chemical
Analyser; PW 12 - Ramhari Balu Bhosale, Police Head Constable,
Madha Police Station; and PW 13 - P.I. Yeshwant Anna Matkar,
the investigating officer in the said case.
4. The appellant-accused examined DW 1-Dr.Arjun
Govind Mukutrao, in support of their defence, to show that
Navnath could not have been present at the time of assault, and
as such could not have witnessed the incident. The appellant-
accused also examined DW 2 - Dr.Ramchandra Maruti Mohite, to
15/82 apeal.563&603.2005(F).doc
show that the prosecution had deliberately not examined
Santosh Bedge, (complainant's brother-in-law) as his
examination would show the falsity of the complaint/FIR.
5. The learned Additional Sessions Judge, Solapur, after
hearing the parties, was pleased to, convict and sentence the
appellant-accused as aforestated in para 2.
6. Heard learned counsel for the parties.
7. We may note, that the matter was heard in January,
2017 and was reserved for orders, however, as certain points
were left to be addressed, we listed the appeal again in May,
2017, for hearing the parties on certain points, including on the
point of alternate sentence and on compensation. Mr.Shirish
Gupte, learned senior counsel appearing for all the appellants
submitted that the appellants have been falsely implicated in
the said case. He submitted that no independent witness has
been examined in the said case and that the only witnesses who
have been examined are PW 5 - Tanaji and PW 10-Navnath, who
16/82 apeal.563&603.2005(F).doc
are related and interested witnesses. He submitted that the
prosecution has not examined Yashoda, the complainant's sister,
on account of whom the alleged incident took place, thus raising
some doubt about the genesis of the incident. Mr.Gupte
submitted that the presence of PW 10-Navnath at the spot of the
incident, was doubtful, considering the evidence of DW 1-
Dr.Arjun Govind Mukutrao, Medical Officer, (Rural), Kurduwadi.
According to Mr.Gupte, the evidence of DW 1 - Dr.Mukutrao,
shows that he had examined Navnath on the day of the incident
i.e. on 21st November, 2003 at about 10.30 a.m., for an assault
which had taken place on 20th November, 2003 at 9.30 p.m.,
thus, making Navnath's presence doubtful at the spot on 21 st
November, 2003, at 10.30 a.m., when and where the incident is
alleged to have taken place. He submitted that non-examination
of Santosh Bedge also makes the prosecution case suspect. He
submitted that despite Santosh Bedge, having received injuries,
as is evident from the evidence of DW 2 - Dr.Mohite, the
prosecution has deliberately not examined him. Mr.Gupte
further submitted that there was no real motive which has come
on record, for the appellants to assault Machindra and Tanaji.
17/82 apeal.563&603.2005(F).doc
According to the learned senior counsel, the appellants have
been falsely implicated in the said case, due to the political
rivalry between the appellants' group and the complainant's
side. He submitted that the learned Judge has rightly rejected
the recovery evidence, considering several lacunae in the
same. He submitted that there are several improbabilities and
inconsistencies, which have come on record, to show that the
incident had not taken place as alleged by the prosecution. He
submitted that deceased - Machindra, complainant - Navnath
and other injured (Tanaji and Santosh) had no reason to be there
at the spot inasmuch as, they were on their way to attend a
wedding at Kuranwadi, which was in a different direction. He
submitted that the deceased and the injured appear to have
received injuries, in a stone pelting incident i.e. stone pelting by
the villagers, teachers, students and passer-bys'. According to
the learned senior counsel, the same is supported by the spot
panchanama, which shows that there were stones lying around
the house of the appellant - Hanmant Gidde (A7). Mr.Gupte
submitted that considering the evidence on record, the
prosecution had failed to prove its case as against the appellants
18/82 apeal.563&603.2005(F).doc
beyond reasonable doubt and as such the appellants be
acquitted of all the offences for which they are convicted. In the
alternative, he submitted that in the facts, the offence if any,
would be one under Section 326 and not under Section 302. He
submitted that the accused be let out on undergone sentence
and instead the fine amount be enhanced.
8. Learned APP supported the Judgment and Order of
conviction and sentence. He submitted that the prosecution had
established motive, for the appellants to attack and assault
the deceased and others. He submitted that the appellants were
armed with deadly weapons and were waiting for them, at the
spot, where the incident took place and after seeing them
mounted an assault on them. He further submitted that the
evidence of the doctors who examined Machindra (deceased)
and Tanaji, shows the nature of injuries sustained by them, that
they were grievous in nature and were sufficient in the ordinary
course of nature to cause death. He submitted that Tanaji
regained consciousness on 24th November, 2003 i.e. after 3 days
and was hospitalised for 14 days, whereas, Machindra
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succumbed to his injuries on 29th November, 2003. He submitted
that although several suggestions were made to the eye
witnesses, the said suggestions were categorically denied by
them. He further submitted that the appellants have not denied
or disputed their presence at the spot of the incident. According
to Mr.Dedia, the learned APP, Tanaji's and Navnath's evidence
shows that they are reliable and trustworthy witnesses and that
there evidence cannot be discarded on the ground, that they
being related to the deceased, are interested witnesses.
Learned APP submitted that considering the evidence on record,
the appeals be dismissed.
9. We have in detail, heard learned senior counsel for
the appellants and the learned A.P.P. at length and with their
assistance have scrutinized the evidence and documents on
record.
10. The prosecution in support of its case, has essentially
relied on; (i) two eye-witnesses to the said incident i.e. PW 5 -
Tanaji and PW 10-Navnath and (ii) the evidence of the medical
20/82 apeal.563&603.2005(F).doc
officers i.e. PW 7-Dr.Anwar, PW 8 - Dr.Kamble and PW 9 -
Dr.Ingale.
11. We first propose to examine the occular evidence
adduced by the prosecution, as there is no serious dispute that
Machindra succumbed to the injuries and that Tanaji received
injuries in the incident of 21st November, 2003. The question
which arises is who was responsible for the said injuries. The two
witnesses examined in that behalf, by the prosecution, are, PW
10 - Navnath Garad and PW 5 - Tanaji Garad.
12. Navnath Mahadeo Garad (PW10) is the complainant
and an injured eye-witness to the incident of assault. He has
stated that Machindra (deceased), Tanaji (PW 5) are his brothers
and that he has three sisters; and that he and his brothers are
residing at village-Laul, Taluka Madha with their parents and
families. He has stated that his one sister - Yashoda, was
married to Mukunda Sawant and that they were residing at
Sapatane-Bhose, Taluka-Madha, Solapur with their son Dashrath
and four daughters. He has further stated that his sister
21/82 apeal.563&603.2005(F).doc
Yashoda and her husband Mukunda were working as labourers in
the agricultural land of Hanmant Gidde (A7), for the last 5 to 6
years. He has stated that after his sister and her husband
purchased 2 acres of agricultural land, they started working in
their own land, and as such stopped working in the field of
Hanmant Gidde (A7).
13. According to PW 10 - Navnath, eight days prior to the
date of the incident, his sister - Yashoda and her husband-
Mukunda had come to Laul and disclosed, that the appellant
Hanmant Gidde (A7), Shanta Gidde (A6) and Balaji Gidde (A8)
were abusing them, as they had stopped working in their field.
They also disclosed that the said persons had threatened to kill
them. He has stated that he and his brothers and parents
pacified Yashoda and her husband and sent them back to
Sapatane, Solapur. According to Navnath, on 20 th November,
2003, Yashoda again came to Laul and disclosed to him, that
Hanmant Gidde (A7) and Balaji Gidde (A8) had assaulted her,
as she had stopped working in their field. He has stated that he
accompanied Yashoda, and dropped her home at Sapatane at
22/82 apeal.563&603.2005(F).doc
about 7 to 8 p.m, and then went to Hanmant Gidde's (A7's )
house. He has stated that he asked Hanmant Gidde (A7), why he
was ill treating his sister - Yashoda, pursuant to which Hanmant's
mother i.e. Shantabai (A6) came and abused him. He has stated
that he told them that they are relatives and if there was some
mistake on his sister's and brother-in-law's part, they would
apologize to them. He also disclosed that he would bring them
on the next day, for tendering an apology. PW 10-Navnath has
further stated that he thereafter, went to his sister - Kashibai's
house at Kurduwadi and then returned back to Laul. He has
stated that on the way to Laul, at Bhosare-Ghatne, Hanmant
Gidde (A7), Balaji Gidde (A8) and Dattu Gidde (A9) assaulted
him; that on his return to Laul, he disclosed the incident to his
parents and brothers; that on the next day at 7.00 a.m., he went
to Kurduwadi Police Station and lodged a complaint; and that
after lodging the complaint, he returned back to Laul at about
10.00 a.m.
14. According to PW 10-Navnath, when he returned to
Laul, Machindra (deceased), Tanaji (PW 5) and his brother-in-law
23/82 apeal.563&603.2005(F).doc
Santosh Bedge, were present in the house. He has stated that all
of them set out to attend the marriage ceremony of Satish
Gholap's daughter, and also decided to settle the dispute
between Hanmant Gidde (A7) and Yashoda. He has further
stated that at Yashoda's house, he told his brothers and
Santosh, that they should visit Hanmant Gidde's house and
settle the dispute, pursuant to which all of them went towards
Hanmant Gidde's (A7's) house. Babasaheb Garad, is also stated
to have accompanied them. According to PW 10 - Navnath, he
saw Hanmant Gidde (A7), Balaji Gidde (A8), Dattu Gidde (A9),
Mahadeo Gidde (A1), Shantabai Gidde (A6), Shobha Raut,
(A15), Yuvraj Raut (A12), Kisan Raut (A2), Bibhishan Raut (A13),
Tukaram Sarde (A14), Suresh Sarde (A5), Ganpat Sarde (A4),
Suryabhan Ubale (A11), Hanmant Laad (A10) and Sarjerao Raut
(A3) at the Laul-Sapatane road. He has stated that Hanmant
Gidde (A7) was armed with a sword; Balaji Gidde (A8), Yuvraj
Raut (A12) and Hanmant Laad (A10) were armed with sickles;
Bibhishan (A13) with an axe; Kisan (A2) with a sword; Mahadeo
(A1), Dattu Gidde (A9) and Suresh (A5) with iron rods; and
Tukaram Sarde (A14), Sarjerao Raut (A3) and Baban Patil
24/82 apeal.563&603.2005(F).doc
@Suryabhan Ubale (A11) with sticks. Navnath has stated that
Hanmant Gidde (A7) abused them by uttering the words 'Aayee
Ghalya' (vkbZ ?kkY;k) and asked him whether he had got his
brothers and brother-in-law to assault. According to Navnath,
Hanmant Gidde (A7) assaulted Machindra with a sword on his
head; Balaji Gidde (A8) assaulted Tanaji with a sickle on his
head; and Bibhishan (A13) assaulted Tanaji on his hand with a
sword. PW 10-Navnath has further deposed that when he and
Santosh asked the assailants not to assault, Mahadeo Gidde
(A1), Dattu Gidde (A9) and Hanmant Laad (A10) assaulted them
with sticks and rod. He has stated that Hanmant Laad (A10)
gave a sickle blow on Santosh's chin and that Yuvraj Raut (A12),
Kisan Raut (A2), Ganpat Sarde (A4) assaulted Machindra and
Tanaji with swords and sticks on their hands and legs. According
to Navnath, when he and his brother-in-law tried to protect
Machindra and Tanaji from being assaulted, Shobha Raut,
(A15), Shantabai Gidde, (A6) Baban Patil @ Suryabhan Ubale
(A11), Dattu Gidde (A9), Sarjerao Raut, (A3) also assaulted them
with stick and rods; and that after hearing their hue and cry, his
sister Yashoda, nephew Dashrath, brother-in-law Mukunda came
25/82 apeal.563&603.2005(F).doc
there, pursuant to which the appellant - accused ran away.
15. According to Navnath, although he had received
injuries, the same were not visible. He has stated that both,
Tanaji and Machindra had received injuries in the incident. He
has stated that he and Dashrath carried Tanaji, and that
Santosh and Babasaheb Garad carried Machindra, on their
motorcycles to Dr.Wagle's Hospital, at Kurduwadi. He has stated
that Dr.Wagle told them that it was not possible for him to give
treatment, pursuant to which they carried Machindra and Tanaji
to S.P. Institute of Neurosciences, Solapur. He has stated that
they admitted Tanaji and Machindra to S.P. Institute of
Neurosciences, Solapur, at about 2 to 3 p.m. According to
Navnath, at about 6 to 7 p.m., the police from the Madha police
station came to the S.P. Institute of Neurosciences, Solapur,
pursuant to which he lodged a complaint. He has identified the
complaint/FIR as being correct. The said FIR is at Exhibit - 53.
16. PW 10 - Navnath has further deposed that the police
seized the clothes which he had worn at the time of the incident,
26/82 apeal.563&603.2005(F).doc
i.e. blood stained pajama and white shirt having three buttons.
He has identified the clothes i.e. articles 15 (pajama) and article
- 16 (shirt). He has also identified the weapons with which they
were assaulted i.e articles 23 to 35. He has stated that all the
accused were known to him.
17. PW 10 - Navnath was cross examined at length. He
has admitted in his cross-examination, that he had informed the
Kurduwadi Police station of the incident i.e. 20 th November, 2003
on 21st November, 2003 at about 7.00 a.m. He has also admitted
that after lodging of the said FIR, the police had sent him for
medical treatment to the Primary Health Centre at Kurduwadi at
9.00 a.m., and that pursuant to the same, he visited the
hospital. He has denied the suggestion that he was examined by
the doctor at about 10.30 a.m., on 21 st November, 2003, and
that he had received information at about 2.00 p.m., that his
brothers had sustained injuries. An omission was brought on
record with regard to the non-disclosure of the previous day's
incident i.e assault on him, on 20th November, 2003, in his FIR.
Navnath has also admitted in his cross-examination that he had
27/82 apeal.563&603.2005(F).doc
not disclosed in his complaint; the incident of 20 th November,
2003 i.e. incident of assault at the hands of Hanmant Gidde
(A7), Balaji Gidde (A8) and Dattu Gidde (A9) at Bhosare-Ghatne;
that his sister Yasodha and her husband had not accompanied
them to Kurduwadi, after the assault of 21 st November, 2003;
and that he had given information to the medical officer, of S.P.
Institute of Neurosciences, Solapur, regarding the incident.
18. The endeavour of the defence from the tenor of the
cross examination of this witness was to suggest (i) that there
was no dispute between the deceased and injured on the one
hand and Hanmant Gidde (A7), who was the Sarpanch of
Sapatane and others on the other; (ii) that the possibility of
somebody else assaulting the deceased and injured could not
be ruled out, considering the fact that there were cases
registered against Navnath and Tanaji, under the Bombay
Prohibition Act; (iii) that all the three Garad brothers had decided
to drive away Hanmant Gidde (A7), the Sarpanch of the village,
as he was an outsider and had 52 acres of agricultural
purchased land at Laul, adjacent to Garad's agricultural land;
28/82 apeal.563&603.2005(F).doc
(iv) that the injured and the deceased had demolished the
labourers' houses, who were working for the Sarpanch i.e.
Hanmant Gidde and had driven them out of village Laul and had
also damaged the brick furnaces on the said land. It was also
suggested to the said witness, that he and his brothers had
carried several persons/villagers with them, to attack the house
of the Sarpanch, and that the villagers from Sapatane, students
and teachers from the school got annoyed and attacked them. It
was also sought to be suggested, that after a discussion with the
leaders of Laul and Sapatane and after consulting an Ex.MLA, a
false story was fabricated against the appellant-accused and a
false complaint was lodged against them. It was also sought to
be suggested that Machindra (deceased ) was a gunda of village
Laul and Kurduwadi and was doing illegal business and that he
was a terror in the village and in these circumstances, the
possibility of somebody else assaulting the deceased could be
ruled out. All the said suggestions were categorically denied by
PW 10-Navnath. Except suggestions, no material/documents
were placed on record in support thereof. Navnath has also
denied the suggestion that he was at the P.H.C., Kurduwadi at
29/82 apeal.563&603.2005(F).doc
about 10:00 a.m to 11:00 a.m, on the day of the incident and as
such had not witnessed the incident.
19. Mr.Gupte, learned senior counsel for the appellants,
vehemently urged that the presence of PW 10-Navnath was
doubtful at the spot i.e. when the incident took place. In support
of his submission, Mr.Gupte relied on the evidence of DW 1-Dr.
Arjun Mukutrao. He submitted that a perusal of DW 1's evidence,
shows that PW 10-Navnath could not have been present at the
spot, at the time of the incident, and as such could not have
witnessed the incident. Considering the said submission, it would
be necessary to consider the evidence of the said witness. DW 1-
Dr. Arjun Mukutrao, the Medical Officer, Rural Hospital,
Kurduwadi has stated that on 21st November, 2003, at about
10:30 a.m., Navnath had come with a yadi of Kurduwadi Police
Station. The said yadi was produced by him and marked as
Exhibit-100. The timing mentioned in the said yadi is 10.30 a.m.
He has stated that the case was treated as a medico-legal case
and was given an MLC number. He has further stated that
Navnath gave history of assault by stick and chain, at 9.30 p.m.
30/82 apeal.563&603.2005(F).doc
on 20th November, 2003, pursuant to which he prepared the case
papers. The said witness produced the original register and case
papers of Navnath. He has stated that he examined Navnath on
21st November, 2003 at 10.30 a.m. and found seven injuries on
his person, i.e. five contusions on the shoulder, scapular region
of back, lateral aspect of right thigh, medial aspect of right knee
and on left knee; and 2 abrasions, one on left side of chest and
other on the face. DW 1-Dr.Mukutrao has stated that after
examining the patient, it took about 20 to 25 minutes for
dressing the injuries. He has produced the case paper which is at
Exhibit - 102 and the medico legal certificate which is at Exhibit
- 101. In the cross examination of this witness, conducted by
the learned APP, it has come on record, that the MLC papers are
prepared by the staff and that on Exhibit - 102, another date is
mentioned by deleting the previous date. DW 1- Dr.Mukutrao has
accepted that the said date mentioned is not in his handwriting.
DW 1- Dr.Mukutrao has also admitted that if the condition of the
patient was serious then after giving prior treatment to the
patient, they would refer the patient for further medical
treatment to the Civil Hospital. He has admitted that he had not
31/82 apeal.563&603.2005(F).doc
mentioned in any document regarding dressing done to the
injuries of the patient and the tablet/injection administered to
the said patient. He has also admitted, that in the register there
is no column, in respect of obtaining thumb impression of the
patient. He has also admitted that both the pages of the register
are not written at one and same time i.e. Exhibits - 101 and 102
and that they are in different handwriting. According to DW 1-
Dr.Mukutrao, the left page of the register is in the original
handwriting and the right page is a carbon copy. He has denied
the suggestion that he intentionally made an endorsement at
Exhibit - 100, that the patient had come to the hospital at 10.30
a.m. He has admitted that he has not mentioned what type of
treatment was given to the patient in the register, in the case
papers, as also in Exhibit - 101. He has admitted that in case of
contusion, five minutes are required for dressing.
20. Before, we proceed to examine and consider, whether
PW 10 - Navnath, had witnessed the incident of assault,
considering the evidence of the defence witness i.e. DW 1-Dr.
Mukutrao, it would be useful to refer to the decision of the Apex
32/82 apeal.563&603.2005(F).doc
Court, in the case of State of Haryana v/s Ram Singh1. The
Apex Court in the context of the evidentiary value attached to a
defence witness has held, that a defence witness is entitled to
equal treatment as that of prosecution witnesses. Therefore,
needless to state that the testimony of defence
witness/witnesses cannot be ignored, if it is found to be clear,
cogent and trustworthy.
21. Keeping in mind the aforesaid, if we juxtapose the
prosecution evidence and the defence evidence, in particular,
the evidence of DW 1-Dr.Arjun Mukutrao, we are of the opinion,
that the evidence of PW 10 - Navnath ought to be given
credence, as we find him to be a natural, reliable and truthful
witness. No doubt, DW 1-Dr.Mukutrao is a doctor, having no axe
to grind and falsely depose, but we find, that Navnath's evidence
and the other material on record, outweighs the evidence of DW
1-Dr. Mukutrao. Dr.Mukutrao was examined, with the sole
purpose of showing that he had examined Navnath (PW 10), on
21st November, 2003, at 10.30 a.m., when the alleged incident
of assault is stated to have taken place, thus making Navnath's
1 AIR 2002 SC 620
33/82 apeal.563&603.2005(F).doc
presence at the spot highly improbable. In this light of the
matter, it would be necessary to consider Navnath's evidence,
as has come on record. A perusal of Navnath's evidence shows
that the incident took place at about 11.00 to 11.30 a.m on 21 st
November, 2003. What cannot be lost sight of, is the fact that
the witnesses, including PW 10 - Navnath, are rustic villagers
and cannot be expected to remember with mathematical
precision the exact time, considering the sequence of events
that took place, from 20th November to 21st November, 2003. It
appears from PW 10 - Navnath's evidence, that a few days prior
to the incident, Yashoda had come to Laul to complain about
Hanmant Gidde (A7) and his family as they were abusing and
threatening her and her family; that on 20 th November, 2003,
Yashoda again came to Laul and complained about Hanmant
Gidde (A7) and others, pursuant to which, Navnath (PW 10) went
to drop her at Sapatane and thereafter went to Hanmant Gidde's
(A7's) house and prayed for an apology; that on the way back,
Hanmant Gidde (A7) and others assaulted Navnath; that
pursuant to the said assault of 20 th November, 2003, Navnath
went to Kurduwadi Police Station on 21 st November, 2003 at 7.00
34/82 apeal.563&603.2005(F).doc
a.m., and lodged a complaint as against Hanmant Gidde (A7)
and others, pursuant to which he visited the hospital with a yadi;
that on his return to Laul, he and his brothers; Navnath,
Machindra, Tanaji and brother-in-law - Santosh Bedge set out to
attend the marriage of Satish Gholap's daughter; that on the
way they decided to go to Yashoda's house; that after visiting
Yashoda's house, Navnath asked his brothers to visit Hanmant
Gidde's (A7's) house to settle the dispute, pursuant to which all
of them went towards Hanmant Gidde's (A7's) house; that on the
way they saw all the accused on the Laul-Sapatane road, armed
with weapons like swords, sickles, axe, iron rods and sticks; that
Hanmant Gidde (A7) asked Navnath why he had brought his
brothers; that all the accused assaulted them; that in the assault
Machindra and Tanaji received serious injuries; that Machindra
and Tanaji were initially taken to Dr.Wagle's Hospital and
thereafter to S.P. Institute of Neurosciences, Solapur; that both,
Machindra and Tanaji, were in an unconscious condition when
they were admitted in the hospital; that the doctors from S.P.
Institute of Neurosciences, Solapur, informed the police,
pursuant to which, the police came and recorded the statement
35/82 apeal.563&603.2005(F).doc
of Navnath, pursuant to which FIR was lodged. It is pertinent to
note, that although an omission was brought on record that
Navnath had not disclosed in the FIR regarding the earlier
incident of 20th November, 2003, nothing turns on the same, as
the fact remains, that Navnath was assaulted in an incident
which took place on 20th November, 2003 at 9.30 p.m., and had
received injuries in the said incident. Infact, even according to
the defence, some incident had taken place on 20 th November,
2003, although not concerning them, pursuant to which
Navnath had gone to the hospital. DW 1-Dr. Mukutrao's
evidence does not appear to be clear and cogent, considering
the answers elicited in his cross-examination, i.e. difference in
handwriting in the MLC register, overwriting in the MLC Register,
etc. Thus, merely because DW 1-Dr. Mukutrao has stated the
time recorded on the Certificate as 10:30 a.m on 21 st November,
2003, it does not mean that Navnath was not present at the spot
on 21st November, 2003, at around 11:00 a.m, when the incident
took place at Sapatane. The distance between Kurduwadi-Laul,
Laul-Sapatane is a few kilometers and on motorcycle, time taken
would not be much. Infact, a perusal of Machindra and Tanaji's
36/82 apeal.563&603.2005(F).doc
medical record shows that the history of the incident given was
of 11.00 to 11.30 a.m., on 21st November, 2003, and as such,
the same leads credence to the fact, that the incident took place
at 11:00 - 11:30 a.m. The evidence of PW 7 - Dr.Shaikh and PW
9 - Dr.Ingale fortifies the said fact. We, thus, find Navnath's
evidence to be credible and trustworthy, unshattered in the
grueling cross-examination. Considering the evidence on record,
we are of the opinion that PW 10-Navnath, was present at the
spot, at the time of the incident and that there is no reason to
disbelieve his presence.
22. PW 10-Navnath's evidence has been amply
corroborated by PW 5-Tanaji. PW 5 - Tanaji has deposed on
similar lines i.e. with regard to the family members; about
Yashoda and her husband living in Sapatane village; that prior to
the date of the incident, Yashoda and her husband were working
as yearly labourers in the field of Hanmant Gidde (A7); that his
sister had purchased two acres of land at Sapatane village and
hence she and her husband were working in their own field and
had stopped working in the field of Gidde; that as Yashoda and
37/82 apeal.563&603.2005(F).doc
her husband had stopped working in Gidde's field, Hanmant (A7)
and others were abusing them; that five to six days prior to the
date of the incident, Yashoda had come to Laul and disclosed
that Hanmant Gidde (A7) and others had abused her and her
husband as they had stopped working in their field; that on 20 th
November, 2003, at about 8.00 a.m. Yashoda came to Laul and
disclosed that Gidde and his persons were harassing her; that on
the same day at about 6.00 p.m., Navnath (PW 10) took Yashoda
to Sapatane; that after Navnath dropped his sister at Sapatane,
Navnath returned back to Laul and disclosed to them, that he
had gone to Hanmant Gidde's (A7's) house and prayed for an
apology, as Yashoda had stopped working in his field, pursuant
to which, Hanmant Gidde, (A7) and others had assaulted him.
23. According to PW 5-Tanaji on 21st November, 2003,
Satish Gholap's daughter was getting married at Kuranwadi. He
has stated that before going for the marriage, he, Machindra,
Navnath, Babasaheb Garad and Santosh Bedge decided to go to
Sapatane, to their sister's house. He has stated that they went
there at about 11.00 to 11.30 a.m.; and that after visiting his
38/82 apeal.563&603.2005(F).doc
sister, they met Pandurang Randive and Satish Auchar. He has
stated that after talking to them, Navnath asked them to visit
Hanmant Gidde's (A.7's) house and ask for an apology, as he
was harassing Yashoda and her husband. Pursuant thereto, all of
them i.e. Tanaji, Machindra, Navnath, Babasaheb and Santosh
Bedge went towards Hanumant Gidde's house. He has stated
that Hanmant Gidde (A7), Balaji Gidde (A8), Mahadeo Gidde
(A1), Dattatraya Gidde (A9), Yuvraj Raut (A.12), Baban @
Suryabhan Ubale (A11), Kisan Raut (A2), Sarjerao Raut (A3),
Ganpat Sarde (A4), Tukaram Sarde (A14), Suresh Sarde (A5),
Hanmant Laad (A10), Shanta Gidde (A6), Bibhishan Raut (A13)
and Shobha Raut, (A15), were sitting on the Laul-Sapatane
road and at that time Hanmant Gidde (A7) asked them why they
had come there. He has stated that Hanmant Gidde (A7)
assaulted Machindra with a sword on his head and Yuvraj (A12)
assaulted Machindra with a sickle on his legs; Balaji Gidde (A8)
gave a sickle blow on his (Tanaji) head; Kisan Raut assaulted
him with a sword on his head; Bibhishan Raut (A13) assaulted
him with an axe on his right leg and left hand and Hanmant
Laad (A10) gave a sickle blow, which landed on Santosh Bedge's
39/82 apeal.563&603.2005(F).doc
chin. He has stated that Navnath requested the accused not to
assault Machindra and fell on his person, pursuant to which,
Mahadeo (A1) assaulted Navnath with an iron rod. Suresh Sarde
(A5) is also alleged to have assaulted Navnath with an iron rod.
Ganpat Sarde (A4), Tukaram (A14) and Sarjerao Raut (A3) are
stated to have been armed with sticks and are stated to have
assaulted Navnath. After hearing hue and cry, Yashoda is stated
to have come to the spot, pursuant to which, the accused left
the spot. He has further stated that thereafter, he and
Machindra were carried on a motorcycle to Kurduwadi, after
which he became unconscious. According to Tanaji, he regained
consciousness only in S.P. Institute of Neurosciences, Solapur,
on 24th November, 2003. He has stated that he was admitted in
S.P. Institute of Neurosciences, Solapur, for 14 days. Tanaji has
identified the clothes (articles - 17 and 18) worn by him on the
day of the assault. Tanaji has stated that Machindra was also
admitted to S.P. Institute of Neurosciences, Solapur, however,
he expired on 29th November, 2003. Tanaji has identified the
weapons i.e. stick, iron rod, sickle, sword i.e. articles 23, 24, 26
to 30 and 31 to 35. He has also identified the accused in the
40/82 apeal.563&603.2005(F).doc
Court.
24. Tanaji has in his cross-examination, denied the
suggestion, that he was falsely deposing that he became
unconscious while proceeding to Kurduwadi; that he was carried
to S.P. Institute of Neurosciences, Solapur, by Raju, Shrikant
and Aiyaz; that Raju, Shrikant and Aiyaz were present at the spot
of the incident; and that he became unconscious while
proceeding towards Solapur from Kurduwadi. According to
Tanaji, his statement was recorded on 28 th November, 2003 and
supplementary statement on 5th December, 2003. An omission
was brought on record that he had not stated in the statement
before the police that he became unconscious at Kurduwadi.
25. It has further came in Tanaji's cross-examination, that
prior to the incident of 21 st November, 2003, he had not visited
Hanmant Gidde's house (A7's); that no quarrel had taken place
between them; that prior to the date of the incident, no cases
were pending between him and his brothers on the one hand
and Hanmant Gidde (A7) on the other; that till his sister was
41/82 apeal.563&603.2005(F).doc
working in the field of Gidde, there was no complaint made by
Yashoda against Hanmant Gidde (A7); and that Hanmant Gidde
(A7) had not lodged any oral or written complaint against him or
his brothers and that there were no strained relations between
him and the appellants. Tanaji has admitted that he had gone
to Hanmant Gidde's (A7's) house to pray for an apology and to
request them not to harass their sister, pursuant to which, the
incident took place and that they were not aware that the
accused would attack them, as there was no quarrel between
them and the accused. He has also admitted that he did not
know the reason why the other accused, except Hanmant
Gidde (A7) had assaulted them. He has also admitted that
Hanmant Gidde (A7) was the Sarpanch of village Sapatane and
that the grievance of his sister Yashoda was, that as she had
stopped working in the field of Hanmant Gidde (A7), he was
harassing her. It was also sought to be suggested that there was
some dispute between two MLAs and that Hanmant Gidde (A7)
belonged to one group and hence at the instance of the other
MLA, a false complaint was lodged as against Hanmant Gidde
(A7) and others. An omission was also brought on record with
42/82 apeal.563&603.2005(F).doc
regard to the disclosure made by Navnath to him, regarding the
incident, which took place on the previous day. According to
Tanaji, on 21st November, 2003 at about 6.00 a.m., he woke up
from sleep, and was not aware as to where Navnath had gone
after 6.00 a.m., on that day. He has denied the suggestion that
after 6.00 a.m., of 21st November, 2003, Navnath had not met
him, till he regained consciousness in S.P. Institute of
Neurosciences, Solapur. He has stated that he was not aware,
whether Navnath had gone to Kurduwadi Police Station at 7.00
a.m. and whether he was at the Primary Health Centre,
Kurduwadi upto 10.00 a.m. He has admitted that they went to
Sapatane on the motorcycle. He has denied the suggestion that
he was falsely deposing that he went to Sapatane at 11.00 to
11.30 am and not at 10.30 a.m. He has stated that it is
incorrectly mentioned in his statement that they went to
Sapatane at 10.30 a.m. Certain omissions were also brought on
record. A suggestion was also made to the said witness, that one
day prior to the date of the incident, at about 9.30 p.m. the
villagers of Sapatane assaulted Navnath on the Bhosare-
Ghatane road, as he had consumed liquor and was abusing the
43/82 apeal.563&603.2005(F).doc
villagers; and due to the said assault on Navnath by the
Sapatane villagers, Machindra (deceased) got annoyed and
carried 40 to 50 people from Villages-Laul, Bhosare and
Ghatane, on motorcycles and jeep to Sapatane; that all the said
persons pelted stones on the house of the Sarpanch and
attacked his house; that due to stone pelting, the teachers and
students from the school and passers-by on the road rushed to
the spot of incident and rescued the Sarpanch and his family
members; that the teachers and students and passer-by's
counter attacked and forced them to run away from the spot;
that in the said incident some villagers from Sapatane and some
persons from complainant's side sustained injuries. The
suggestion that at the time of the incident, Navnath was not
present at the spot was denied by Tanaji. He has denied the
suggestion that he was falsely deposing that Navnath had taken
him on the motorcycle. He has stated that Navnath was present
with him, when he was taken to the Primary Health Centre at
Kurduwadi.
26. The evidence of this witness was also assailed by
44/82 apeal.563&603.2005(F).doc
Mr.Gupte, learned senior counsel for the appellants on several
counts. As noted earlier, several suggestions were made to the
said witness to show the possibility of somebody else assaulting
him and the deceased - Machindra, however, despite a grueling
cross-examination, Tanaji's evidence has remained unshaken.
Infact, there is nothing in the cross to discredit the testimony of
this witness. A perusal of the evidence of PW 5-Tanaji shows that
there was absolutely no reason for him to falsely implicate any
of the appellant-accused. As has even come in the cross
examination of this witness, there were no inimical or hostile
relations between them and Hanmant Gidde (A7) and others.
27. It is pertinent to note, that Hanmant Gidde (A7) was
the Sarpanch of village - Sapatane. As has come in the evidence
of Tanaji and Navath, their sister Yashoda and her husband, a
resident of Sapatane were being harassed by Hanmant Gidde
(A7) and his family, as Yashoda and her husband had stopped
working for them in their field. A grievance to that effect was
also made by Yashoda and her husband to her brothers i.e.
Tanaji, Navnath and Machindra. From the evidence on record, it
45/82 apeal.563&603.2005(F).doc
appears, that on the previous day i.e. 20 th November, 2003,
Navnath had gone to Sapatane and prayed for an apology from
Hanmant Gidde (A7), however, he was abused and assaulted by
Hanmant Gidde (A7) and others, pursuant to which, Navnath
went to the police station on the next day and lodged a
complaint. As noted earlier, although an omission was brought
on record, regarding non-disclosure of the incident of 20 th
November, 2003 in Tanaji's police statement, the fact remains
that some incident had taken place on 20 th November, 2003,
even according to the appellant-accused, though they were not
concerned with the same. Although much ado, was made by
the learned senior counsel for the appellants, with regard to the
presence of Navnath at the spot of incident, as noted earlier,
there is no manner of doubt, that Navnath was present at the
spot, when the incident of assault took place. Tanaji's evidence
also fortifies, Navnath's presence at the spot. We cannot be
oblivious to the fact that the witnesses are rustic villagers, who
cannot be expected to state with precision, the exact timings.
An hour here or there, would not make much difference, if the
facts and sequence of events are borne in mind. What is
46/82 apeal.563&603.2005(F).doc
pertinent to note, is that there was no animosity which has come
on record for the eye-witnesses i.e. Tanaji and Navnath, to falsely
implicate the appellant-accused. Infact, some of the suggestions
are contrary to each other. It is also pertinent to note, that
admittedly the complainant's side were not armed with any
weapons, when they went to Sapatane to meet their sister and
thereafter to Hanmant Gidde's (A7's) house, to pray for an
apology. It is neither the defence's case, that Tanaji, Machindra
and others were the aggressors, and that in exercise of their
right to private defence, they assaulted Tanaji, Machindra and
others. The case put up by the appellant-accused also appears
to be too far fetched i.e. that Machindra had carried several
villagers with him to village Sapatane and had started pelting
stones on the house of Hanmant Gidde (A7), pursuant to which
the villagers, teachers, students and passer-by, counter attacked
and in the said attack, Machindra and others sustained injuries.
We do not find any merit in the said defence. No evidence has
been adduced by the defence in support of the same. The
appellant-accused have not denied their presence at the spot
nor are they stated to have received any injuries in the said
47/82 apeal.563&603.2005(F).doc
incident. The testimony of both, PW 5-Tanaji and PW 10-Navnath
appears to be natural, credible and trustworthy. Merely because
Navnath's injury certificate is not placed on record, would not in
anyway create a dent in the prosecution case. Infact, even
according to Navnath, he had not received any visible injuries in
the incident of assault on 21st November, 2003. Apart from the
aforesaid, the complaint has also been promptly lodged, leaving
no room for any suspicion/doubt.
28. Although, Mr.Gupte vehemently urged that the
prosecution case is doubtful, as no independent witness/es, have
been examined by the prosecution and that the only witnesses
examined were, related and interested witnesses i.e. Navnath
(PW 10) and Tanaji (PW 5), we do not find any merit in the said
submission. On the question of related/interested witnesses, the
Apex Court in the case of Dharnidhar v/s State of U.P. and
Others2 has observed as under;
"12. There is no hard-and-fast rule that family members can
never be true witnesses to the occurrence and that they
will always depose falsely before the court. It will always
depend upon the facts and circumstances of a given
2 (2010) 7 SCC 759
48/82 apeal.563&603.2005(F).doc
case. In Jayabalan v. UT of Pondicherry', this Court had
occasion to consider whether the evidence of interested
witnesses can be relied upon. The Court took the view
that a pedantic approach cannot be applied while dealing
with the evidence of an interested witness. Such evidence
cannot be ignored or thrown out solely because it comes
from a person closely related to the victim. The Court held
as under: (SCC p. 213, paras 23-24)
23. We are of the considered view that in cases
where the court is called upon to deal with the
evidence of the interested witnesses, the approach
of the court, while appreciating the evidence of
such witnesses must not be pedantic. The court
must be cautions in appreciating and accepting the
evidence given by the interested witnesses but the
court must not be suspicious of such evidence. The
primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be
ignored or thrown out solely because it comes from
the mouth of a person who is closely related to the
victim.
24. ........
13. Similar view was taken by this Court in Ram Bharosey v.
State of U.P. where the Court stated the dictum of law
that a close relative of the deceased does not, per se,
become an interested witness. An interested witness is
one who is interested in securing the conviction of a
person out of vengeance or enmity or due to disputes
and deposes before the court only with that intention and
not to further the cause of justice. The law relating to
appreciation of evidence of an interested witness is well
settled, according to which, the version of an interested
witness cannot be thrown overboard, but has to be
examined carefully before accepting the same.
14. In the light of the above judgments, it is clear that the
statements of the alleged interested witnesses can be
49/82 apeal.563&603.2005(F).doc
safely relied upon by the court in support of the
prosecution's story. But this needs to be done with care
and to ensure that the administration of criminal justice is
not undermined by the persons, who are closely related
to the deceased. When their statements find corroboration
by other witnesses expert evidence and the circumstances
of the case clearly depict completion of the chain of
evidence pointing out to the guilt of the accused, then we
see no reason why the statement of so-called "interested
witnesses" cannot be relied upon by the court."
In Seeman alias Veeranam vs. State, by Inspector of
Police3, the Supreme Court in paragraph 4 observed thus:
4. "It is now well settled that the evidence of witness cannot
be discarded merely on the ground that he is a related
witness or the sole witness, or both if otherwise the same is
found credible. The witness could be a relative but that does
not mean to reject his statement in totality. In such a case, it
is the paramount duty of the court to be more careful in the
matter of scrutiny of evidence of the interested witness, and
if, on such scrutiny it is found that the evidence on record of
such interested sole witness is worth credence, the same
would not be discarded merely on the ground that the witness
is an interested witness. Caution is to be applied by the court
while scrutinizing the evidence of the interested sole witness.
The prosecution's non - production of one independent
witness who has been named in the FIR by itself cannot be
taken to be a circumstance to discredit the evidence of the
interested witness and disbelieve the prosecution case. It is
well settled that it is the quality of the evidence and not the
quantity of the evidence which is required to be judged by
the court to place credence on the statement."
In Dalip Singh and Others v/s State of Punjab 4 the Apex
3 2005 Cri.LJ 2618
4 [1954] 1 SCR 145
50/82 apeal.563&603.2005(F).doc
Court, has observed as under:-
"A witness is normally to be considered independent
unless he or she springs from sources which are likely to
be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and
there is personal cause for enmity, that here is a tendency
to drag in an innocent person against whom a witness has
a grudge along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth."
(emphasis supplied)
The Court, no doubt, uttered a word of caution:
"However, we are not attempting any sweeping
generalisation. Each case must be judged on its own facts.
Our observations are only made to combat what is so often
put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must
be limited to and be governed by its own facts."
(emphasis supplied)
In Darya Singh and Ors. v. State of Punjab 5, the
Apex Court held that evidence of an eye witness who is a near relative
of the victim, should be closely scrutinized but no corroboration is
necessary for acceptance of his evidence.
Speaking for the Court, Gajendragadkar, J. (as His Lordship
then was) in para 6 has observed as under:
5 AIR (1965) SC 328
51/82 apeal.563&603.2005(F).doc
"6. There can be no doubt that in a murder case when
evidence is given by near relatives of the victim and the
murder is alleged to have been committed by the enemy of the
family, criminal Courts must examine the evidence of the
interested witnesses, like the relatives of the victim, very
carefully. But a person may be interested in the victim, being
his relation or otherwise, and may not necessarily be hostile to
the accused. In that case, the fact that the witness was related
to the victim or was his friend, may not necessarily introduce
any infirmity in his evidence. But where the witness is a close
relation of the victim and is shown to share the victim's
hostility to his assailant, that naturally makes it necessary for
the criminal Court to examine the evidence given by such
witness very carefully and scrutinise all the infirmities in that
evidence before deciding to act upon it. In dealing with such
evidence, Courts naturally begin with the enquiry as to
whether the said witnesses were chance-witnesses or whether
they were really present on the scene of the offence. If the
offence has taken place as in the present case, in front of the
house of the victim, the fact that on hearing his shouts, his
relations rushed out of the house cannot be ruled out as being
improbable, and so, the presence of the three eye-witnesses
cannot be properly characterised as unlikely. If the criminal
Court is satisfied that the witness who is related to the victim
was not a chance-witness, then his evidence has to be
examined from the point of view of probabilities and the
account given by him as to the assault has to be carefully
scrutinised. In doing so, it may be relevant to remember that
though the witness is hostile to the assailant, it is not likely
that he would deliberately omit to name the real assailant and
substitute in his place the name of enemy of the family out of
malice. The desire to punish the victim would be so powerful in
his mind that he would unhesitatingly name the real assailant
and would not think of substituting in his place the enemy of
the family though he was not concerned with the assault. It is
not improbable that in giving evidence, such a witness may
name the real assailant and may add other persons out of
malice and enmity and that is a factor which has to be borne in
mind in appreciating the evidence of interested witnesses. On
principle, however, it is difficult to accept the plea that
if a witness is shown to be a relative of the deceased
and it is also shown that he shared the hostility of the
victim towards the assailant, his evidence can never be
52/82 apeal.563&603.2005(F).doc
accepted unless it is corroborated on material
particulars....."
(emphasis supplied)
In Kartik Malhar v. State of Bihar6, the Apex Court
considered several leading cases on the point and observed in
para 6 as under:-
"6. On a conspectus of these decisions, it clearly comes
out that there has been no departure from the principles laid
down in Vadivelu Thevar's case, AIR 1957 SC 614 (supra) and,
therefore, conviction can be recorded on the basis of the
statement of single eye witness provided his credibility is not
shaken by any adverse circumstance appearing on the record
against him and the Court, at the same time, is convinced that
he is a truthful witness. The Court will not then insist on
corroboration by any other eye-witness particularly as the
incident might have occurred at a time or place when there was
no possibility of any other eye-witness being present. Indeed,
the Courts insist on the quality, and, not on the quantity
of evidence."
(emphasis supplied)
In Harbans Kaur v. State of Haryana 7, the Apex Court
observed in para 7 as under:-
"7. There is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has
to be shown when a plea of partiality is raised to show that
the witnesses had reason to shield actual culprit and falsely
implicate the accused....."
29. Considering the aforesaid settled legal position, it is
clear that a close relative cannot as a general rule be
6 1996 Cri.L.J.889
7 2005 Cri.L.J. 2199
53/82 apeal.563&603.2005(F).doc
characterised as an 'interested' witness. A close relative can be
a 'natural' witness. His evidence, however, must be scrutinized
carefully. If on such scrutiny, his evidence is found to be
intrinsically reliable, inherently probable and wholly trustworthy,
conviction can be based even on the 'sole' testimony of such a
witness. Mere close relationship of witness with the deceased or
victim is no ground to reject his evidence. On the contrary, close
relative of the deceased would normally be most reluctant to
spare the real culprit and falsely implicate an innocent one. It is
the quality of the evidence of such a witness, which needs to be
borne in mind, before his evidence is accepted.
30. In the facts of the present case, having considered
the evidence of Navnath (PW 10) and Tanaji (PW 5), we find their
evidence to be credible, reliable and trustworthy. As far as PW 5
- Tanaji is concerned, he is an injured eye witness. His evidence
inspires confidence. Both Tanaji's and Navnath's evidence is
consistent with other. Merely, because Navnath's injury
certificate is not placed on record, does not mean that Navnath
was not present at the spot. Infact, according to Navnath,
54/82 apeal.563&603.2005(F).doc
although he was assaulted while trying to save Machindra, he
had not received any visible injuries. The complaint was
promptly lodged by Navnath, leaving no scope for any
doubt/suspicion. Although, both these witnesses were cross-
examined at length, nothing material is elicited in their cross-
examination, to discredit their testimony. The omissions on
record are not material omissions, and as such, do not affect the
substratum of the prosecution case.
31. The medical evidence also corroborates the occular
evidence. PW 7 - Dr.Anwar Moulali Shaikh, RMO, S.P. Institute of
Neurosciences, Solapur, first examined deceased-Machindra
and Tanaji on 21st November, 2003 at about 2.00 p.m. He has
stated that Tanaji and Machindra were admitted to the hospital;
that he examined Machindra; that Machindra was admitted by
one Bapu Zambare; that Navnath (PW 10), the brother of the
patient (Machindra) had also accompanied the patient; that
when Machindra was admitted to the hospital, he was in an
unconscious state and that he was gasping for breath. He has
stated that on examination he found the following injuries on his
55/82 apeal.563&603.2005(F).doc
person;
- CLW over left chin and over right leg 5 cm above
right ankle on anterior aspect.
- Abrasion over big toe, 3rd toe and right leg.
- CLW over left parietal region about 3 finger
breadth.
- Fracture left middle finger first phalanx with
swelling of index and middle fingers.
- There was bleeding from nostrils and left ear.
32. He has stated that the C.T.Scan revealed soft tissue
swelling over right parietal region; that Extraaxial hyperdense
lesion was noted over fronto-parietal convexity seen
compressing parenchyma right lateral ventricle with midline
shift, subfalcine herniation to left side s/o subdural hematoma
(SDH); Hyper densities were seen along left sylvian fissure and
cortical sulci in left parietal region suggestive of subarachnoid
hemorrhage; and that the bone window revealed fractures
involving the left parietal region.
56/82 apeal.563&603.2005(F).doc
33. PW 7-Dr.Anwar Shaikh has placed the injury certificate
of Machindra on record. The same is at Exhibit - 43. He has
stated that on 29th November, 2003, Machindra died in the
hospital and that during the period from 21 st November to 29th
November, 2003, the condition of the patient was serious and
that he was unconscious; that he had sustained a CLW on the
chin and over the right leg above the right ankle; that the said
injuries were possible by sickle; and that the CLW injury on the
left parietal region was possible by sword. He has stated that the
head injury was on the vital part of the body and that the head
injury in the ordinary course of nature were sufficient to cause
death. According to PW 7 the injuries were possible by weapons
i.e. articles 25 to 30.
34. In the cross-examination, PW 7 - Dr.Shaikh has
admitted that the patient was admitted to the hospital at about
2.45 p.m. and that the history was given by one Bapu Zambare.
He has denied the suggestion that he has wrongly deposed that
the patient was brought to the hospital by his brother - Navnath.
He has also admitted that except the head injury and CLW over
57/82 apeal.563&603.2005(F).doc
the left chin, the other injuries on the person of Machindra, were
not on vital parts of the body. He has stated that the only
treatment which was available in the case of Machindra was life
supporting treatment. He has admitted that if proper treatment
was given, the fracture involving left parietal region, could be
healed automatically. We may note here, that it is recorded in
the injury certificate, Exhibit - 43 that Machindra, aged 22 years
was brought by the relatives, stating history of alleged assault
on 21st November, 2003 at about 11.00 a.m; that he was
unconscious and was gasping for respiration. The discharge
summary card paper, which is at Exhibit-44 of S.P. Institute of
Neurosciences, Solapur also shows, that Machindra was
admitted on 21st November, 2003 at about 2.45 p.m.; that the
informant was Bapu Zambre; that the patient was brought by the
relatives on 21st November, 2003 at 2.00 p.m. with history of
alleged assault at about 11.00 a.m. on the day of admission;
that he was on life support treatment for eight days i.e. till 29 th
November, 2003; that there was no change in his clinical status;
that on 29th November, 2003 at 10.00 p.m. he developed
bradycardia, hypotension and cardiac arrest and died. The said
58/82 apeal.563&603.2005(F).doc
medical case papers also show that the incident had taken
place at around 11.00 a.m. and not 10.00 a.m., as is sought to
be suggested by the appellants, in order to create a doubt with
regard to Navnath's presence, at the spot.
35. PW 8-Dr.Suryakant Baburao Kamble, conducted the
postmortem of Machindra on 30th November, 2003. He has
stated that on external examination, he found seven injuries
I.e.;
1. Sutured wound over left parietal region 2 ½" X ½".
2. Sutured wound over left temporoparietal region
1" X 1".
3. Linear abrasion over Rt.leg middle part 3" X 1".
Blackish with crush formation.
4. Abrasions over great toe, 2 nd toe and third toe,
Rt.foot ½" X ½" each superficial with crush
formation blackish.
5. Healed C.L.W over Rt.Leg near ankle region, near
ankle region blackish 3" X ½" .
6. Healed C.L.W. Over left leg over middle region 4" X
2" blackish.
7. C.L.W. with fracture middle finger terminal aspect
left hand.
59/82 apeal.563&603.2005(F).doc
On internal examination, he noted the following injuries;
1. C.L.W. left parietal region with haematoma
2 ½" X ½".
2. C.L.W. left temporoparietal region 1" X 1" with
haematoma.
Fracture left parietal bone extending upto
Rt.parietal bone transversly crack type linear
3" X ½" .
Subdural and subarachnoid hemorrhage with
multiple blackish blood clots all over brain
surface. Blood clots also present in both the
lateral ventricles of cerebral cortex, blackish
cerebral cortex soft creamy.
36. PW 8-Dr.Kamble opined that the probable cause of
death was 'head injury'. He accordingly prepared P.M. notes. The
said P.M. notes are at Exhibit-46. He has stated that the injuries
mentioned in column no.17 correspond with the injuries
mentioned in column no.19 and were sufficient in the ordinary
course of nature to cause death and that all the injuries
collectively were sufficient to cause death. He has stated that
the said injuries mentioned in column no.17 at serial nos.1 and 2
correspond with the injuries in column no.19 (1) and 2) and were
60/82 apeal.563&603.2005(F).doc
possible by sword and the injuries mentioned at serial nos. 5 to 7
in column no.17 were possible by sword or sharp weapon.
37. Dr.Kamble has in his cross-examination admitted that
the fracture on the head could be healed by life supporting
treatment and that in such cases there are high chances of
survival. He has also admitted that injuries nos.(i) and (ii)
mentioned in column no.19, alongwith fracture of parietal bone
may be possible by hard and blunt object and so also injuries
nos.5 and 6 mentioned in column no.17.
38. PW 9-Dr.Pravin Vishnupant Ingale examined Tanaji
(PW 5). According to PW 9-Dr.Ingale, he was working as RMO at
S.P. Institute of Neurosciences, Solapur. He has stated that on
21st November, 2003, Tanaji was admitted to the hospital at 2.40
to 2.50 p.m.; and that Navnath (PW 10) was the informant. He
has stated that Navnath gave history of incident to him, when
the patient was admitted to the hospital. He has stated that on
examination, he found that Tanaji was unconscious and was not
responding to verbal commands; that his left pupil was dialated
61/82 apeal.563&603.2005(F).doc
and unreactive; that his right pupil was reactive, purposive
movement of left arm to pain; that there was bleeding from left
ear and swelling over the right arm; that his hair were matted
with blood, that there was CLW over left thumb and that there
was injury to his head. He has stated that C.T. Scan of the
patient was done and that the C.T. Scan report revealed
Extraaxial hyperdense lesion with convex margin over the left
parietal convexity-extradural haematoma. Left occipital
haemorrhagic contusion, fracture left temporal and both parietal
bones. He has produced the injury certificate of Tanaji, which is
at Exhibit - 49. He has stated that on 21 st November, 2003 at
night, Tanaji was operated and that he regained consciousness
only on 24th November, 2003 and thereafter he was discharged
on 4th December, 2003. According to PW 9-Dr.Ingale, the CLW
over the left thumb is possible by axe; and that the head injury
is possible by Sattur, sickle or sword. He has stated that the
head injury was on the vital part of the body and that the head
injury was sufficient to cause death, if the patient was not
operated immediately. A perusal of the case papers shows that
Navnath Garad (PW 10) was the informant, and that it was
62/82 apeal.563&603.2005(F).doc
Navnath who had given history of assault at about 10.30/11.00
a.m. There is no reason to disbelieve the testimony of this
witness, that it was Navnath who admitted Tanaji to the hospital.
The injury certificate also reveals that the history of assault,
given was at about 11.00 a.m. Considering the occular evidence,
which is corroborated by the medical evidence on record, we find
that PW 5-Tanaji and Machindra (deceased) had sustained
injuries in the assault which took place on 21 st November, 2003.
It is also pertinent to note that blood was found at the spot
where the incident took place. As noted earlier, there is nothing
on record to show that the complainant's side were armed. On
the contrary, what is evident is that the deceased and injured
had gone to tender an apology and were assaulted by the
appellants. It is pertinent to note, that the appellants have not
denied nor disputed their presence at the spot, under Section
313 of the Code of Criminal Procedure. Neither any cross case
has been filed by the appellants against the complainant and the
injured. Nor is it a case, where any of the appellants are stated
to have been injured, in the said incident.
63/82 apeal.563&603.2005(F).doc
39. Mr.Gupte also relied on the evidence of DW 2 -
Dr.Mohite, in support of his submission to show that the
prosecution had deliberately not examined Santosh Bedge,
though he was allegedly present at the spot and had received
injuries. The evidence of DW 2-Dr.Ramchandra Maruti Mohite,
Medical Officer, Primary Health Centre, Madha shows that on
the day of the incident i.e. 21st November, 2003, he was
attached to the said Primary Health Centre. He has stated that
on that day, Santosh Balu Bedge had came to the PHC, Madha,
along with a police yadi and that he had noticed one CLW injury
on the left side of the face. He has stated that the injury was
simple in nature and was caused by a hard and sharp object. He
has stated that he examined him and accordingly issued an
injury certificate at Exhibit - 105.
40. According to Mr.Gupte, the reason for not examining
Santosh Bedge, was to suppress the true facts. According to Mr.
Gupte, Santosh Bedge had lodged a complaint with the Madha
Police Station, prior to the FIR lodged at the instance of Navnath
and that the same has been suppressed by the prosecution. We
64/82 apeal.563&603.2005(F).doc
find no merit in the said submission, as it was always open for
the defence to bring on record the said complaint or examine
any Officer from the said Police Station. Nothing turns on the
non-examination of Santosh Bedge, by the prosecution.
Ultimately, even Santosh Bedge was a close relative of the
deceased and injured. As noted earlier, it is not the quantity
but quality of evidence that is important.
41. The question that then arises for consideration in the
facts of this case, is whether the conviction awarded to some of
the appellants under Section 302 r/w 149 of the I.P.C and some
under Section 307 r/w 149 of I.P.C. is justified and whether the
sentences awarded to the appellants for the offences
appropriate.
42. In the present case, charge was framed against the
appellant - accused for various offences punishable under
Sections 147, 148, 302, 307, 324, 504 r/w 149 of the Indian
Penal Code and under Section 135 of the Bombay Police Act. As
noted earlier in para 2, all the appellant-accused were convicted
65/82 apeal.563&603.2005(F).doc
for the offences punishable, under Sections 147 r/w 149 of I.P.C
and under Sections 148 r/w 149 of the I.P.C. however, some of
the appellants were convicted for the offence punishable under
Section 302 r/w 149 of I.P.C; and some for the offence punishable
under Section 307 r/w 149 of I.P.C ; and some for the offence
punishable under Section 324 r/w 149 of I.P.C and under Section
323 r/w 149 of I.P.C.
43. From the evidence on record, the common object of
the unlawful assembly will have to be ascertained. Section 147
of the I.P.C is the penalizing section for the offence which is
defined under Section 146 of I.P.C. As soon as the force or
violence is used by an unlawful assembly or by any member
thereof in prosecution of the common object of such assembly,
the offence of rioting would be complete. Infact, the common
object of the unlawful assembly would have to be inferred from
the conduct of the members of the unlawful assembly. From the
evidence on record, it appears that there was some dispute
between Hanmant Gidde and Yashoda (Navnath, Machindra and
Tanaji's sister) and that Yashoda had disclosed to her brothers
66/82 apeal.563&603.2005(F).doc
about the threats and assault on her and her husband by
Hanmant Gidde (A7). Pursuant thereto, Navnath had gone to
Sapatane on the previous day i.e. on 20 th November, 2003 to
Hanmant Gidde's (A7) house to settle the dispute. On the next
day, i.e. on 21st November, 2003, PW 5 - Tanaji, PW 10 -
Navnath, Machindra (deceased) and Santosh Bedge had gone to
Sapatane first to Yashoda's house and thereafter to Hanmant
Gidde's (A7) house, at the instance of PW 10 - Navnath, to settle
the dispute and seek an apology. It appears that when they
reached towards Hanmant Gidde's vasti, Hanmant Gidde (A7)
and other named persons came towards them. They were armed
with axes, sickles, swords, iron rods and sticks. Hanmant Gidde
(A7) questioned Navnath (PW 10) and asked him, whether he
had brought his brothers and brother-in-law to assault him and
uttered the words 'Aayee Ghalya' ( vkbZ ?kkY;k), and pursuant
thereto, assaulted Machindra with a sword on his head. The
other co-accused also started assaulting the deceased and
others. It appears from the evidence on record, that the object
of unlawful assembly was to cause hurt. It may be noted, that
Navnath (PW 10) had come on the previous day to the village of
67/82 apeal.563&603.2005(F).doc
the accused, as Hanmant Gidde (A7) had assaulted his sister;
that on the said day, Navnath was assaulted by Hanmant and
others; that on the next day, Navnath (PW 10) had again
returned to the village, with his brothers and brother-in-law and
hence the accused apprehended that they had come to assault
them and hence in this background, the common object of the
unlawful assembly was to repulse the apprehended assault, by
causing hurt to Tanaji and the persons accompanying him.
Admittedly, there was no animosity or dispute between
Machindra and Tanaji on one hand and the appellant-accused on
the other. It also appears from the evidence, that most of the
appellant-accused had not actually assaulted the deceased-
Machindra and Tanaji nor had aided Hanmant Gidde (A7) in
mounting assault on deceased - Machindra and Tanaji. It
appears from the evidence of PW 10 - Navnath, that Hanmant
Gidde (A7) assaulted Machindra with a sword on his head and
that Yuvraj (A12), Kisan (A2) and Ganpat (A4) assaulted
Machindra and Tanaji with swords and sticks on their hands and
legs, whereas, from the evidence of PW 5 - Tanaji, it appears
that Hanmant Gidde (A7) assaulted Machindra with a sword on
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his head and Yuvraj (A12) gave a blow with a sickle on
Machindra's legs. The medical evidence shows the cause of
death as 'head injury'. It is the head injury which turned out to
be fatal. The injury certificate of Machindra shows that he had
sustained 4 injuries, i.e. CLW on the head, CLW over left chin and
over right leg above ankle, abrasion on toes and right leg and
fracture of left middle finger. It is not the case of the
prosecution, that any of these accused, including Hanmant
Gidde assaulted Machindra more than once.
44. It may be noted that Section 149 of I.P.C. is divided
into two parts and that the same are not to be read in the
alternative, but in conjunction with each other. In the first part of
Section 149, if an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that
assembly or such act, the member of that assembly knew to be
likely to be committed in prosecution of that object every person
who at the time of committing of that offence is a member of the
same assembly and as such would be guilty of the said offence.
In the second part of Section 149 of I.P.C. knowledge of the
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members of the unlawful assembly that any member of the said
assembly may commit a particular act is necessary.
45. In the facts of this case, admittedly there is nothing
on record to show, that the appellants had any animosity, ill-will
against the injured-Tanaji and the deceased-Machindra, so as to
cause Machindra's death. In the absence of any cogent,
evidence in that behalf, it would be difficult to hold that all the
members of the unlawful assembly had the requisite
knowledge that some of the accused were likely to assault the
deceased - Machindra and injure Tanaji, in a manner which
would result in Machindra's death and seriously injure Tanaji.
From the acts/role played by some of the appellant- accused, it
appears that the object of the unlawful assembly was to cause
hurt and that they all came together and that some of them
assaulted Machindra (deceased) and Tanaji. The evidence on
record shows that Hanmant Gidde (A7) was abusing and
threatening Yashoda and hence Machindra, Tanaji, Navnath
and Santosh had gone to Hanmant Gidde (A7's) house to pray
for an apology; that Hanmant Gidde (A7) and others
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came towards them; Hanmant Gidde questioned the
complainant whether he had got his brothers to assault him and
assaulted Machindra with a sword on his head. The other co-
accused i.e Yuvraj (A12), Kisan (A2) and Ganpat (A4) assaulted
Machindra on his hands and legs. A perusal of the medical
certificate/postmortem report shows, that the fatal injury, was
the head injury caused by Hanmant Gidde (A7). The injuries
caused by Yuvraj (A12), Kisan (A2) and Ganpat (A4) are not on
any vital part of the body. Machindra was unconscious from the
time of his assault till he succumbed to the injuries on 29 th
November, 2003. None of the appellants are stated to have
assaulted Machindra or Tanaji more than once. Infact, when
Machindra was assaulted, Navnath and Santosh fell on his
person, pursuant to which they too were assaulted. Admittedly,
neither Navnath nor Santosh are stated to have received any
grievous injuries. On the contrary, the injuries sustained by
Navnath were not even visible. It thus appears that the common
object of the members of the unlawful assembly, was to cause
hurt. The medical evidence also shows that except one injury on
Machindra's head, none of the other 3 injuries were on the vital
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parts of the body nor were they serious/grievous. It can thus be
inferred, that the acts done by some members of the unlawful
assembly were different from the common object of the said
assembly and were of such a nature as the members of the
assembly could not have known to be likely to be committed in
prosecution of that object. We may note, that the course of
conduct adopted by the members of the assembly would
certainly be a relevant factor. In the case in hand, the common
object of the assembly is not discernible. In the facts, it can be
held that the principal offender Hanmant Gidde (A7) intended to
cause grievous injury on the deceased - Machindra and in
furtherance of the same, assaulted Machindra on his head with a
sword. It appears that no further attempt was made by Hanmant
Gidde (A7), though he had the opportunity to do so. Merely
because other members of the unlawful assembly i.e. Yuvraj
(A12), Kisan (A2) and Ganpat (A4) were armed with swords and
sticks, it cannot be said that they shared the common object
with Hanmant Gidde (A7), vis-a-vis assault on Machindra, more
so, in the absence of any evidence adduced by the prosecution
in that behalf.
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46. In the case of Pandurang Chandrakant Mhatre
and Others v/s State of Maharashtra, reported in (2009) 10
SCC 773, specific overt acts of the accused persons who had
caused death was distinguished from the act of the persons
against whom there were general allegations. In the said case,
the Apex Court in paragraph 72 observed thus:-
72 ".....It is well known that for determination of common object
of the unlawful assembly, the conduct of each of the members of
the unlawful assembly before and at the time of attack is of
relevant consideration. At a particular stage of the incident, what
is object of the unlawful assembly is a question of fact and that
has to be determined keeping in view the nature of the
assembly, the arms carried by the members and the behaviour
of the members at or near the scene of incident."
47. As noted earlier, and as is evident from the evidence
of the eye-witnesses, coupled with the medical evidence, that it
was Hanmant Gidde (A7), who assaulted Machindra on his head,
whereas, some of the appellant-accused assaulted Machindra on
his hands and legs and some of the accused assaulted the
complainant and Santosh Bedge, when they fell on Machindra's
body, to save him. As noted earlier, Navnath had sustained no
visible injuries. From the injuries (except head injury) sustained
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by Machindra and Tanaji, it was evident that the object of the
unlawful assembly was to cause hurt. It is also evident, that it
was Hanmant Gidde (A7) alone who assaulted Machindra on his
head with a sword, which injury turned out to be a fatal injury. As
a result of the blow, Machindra became unconscious and
ultimately succumbed to the said injury on 29th November,
2003. The weapon carried by Hanmant Gidde (A7) and the
situs of the body chosen by him clearly indicates that it was his
intention to cause grievous hurt. As stated earlier, it appears
from the evidence, that there was no real animosity between
Hanmant Gidde (A7) and Machindra, for Hanmant Gidde to cause
his death. Similarly, Machindra's injury certificate/postmortem
report does not show that Yuvraj (A12), Kisan (A2) and Ganpat
(A4) had assaulted Machindra on any vital part of the body. It is
evident from the medical certificate/ postmortem report of
Machindra, that apart from the head injury, the other injuries
were on his toes and fingers. The acts of Yuvraj (A12), Kisan (A2)
and Ganpat (A4) were in furtherance of the common object of
the unlawful assembly i.e. of causing hurt. It thus appears that
the unlawful assembly was formed on the spur of moment, at
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the behest of Hanmant Gidde (A7) only when they saw
Machindra and others coming towards them. From the individual
acts of each of the members it can safely be inferred that they
had not shared the intention and knowledge of Hanmant Gidde
(A7) vis-a-vis assault on Machindra, which he alone reduced into
action, by giving a blow on Machindra's head. As noted earlier,
no further attempt was made to assault either Machindra or
Tanaji or Navnath.
48. In the facts, we are of the opinion that only Hanmant
Gidde (A7) would be liable for the offence punishable under
Section 326 r/w 149 of I.P.C. and as such his conviction under
Section 302 r/w 149 requires to be set aside. As far as Yuvraj
(A12), Kisan (A2) and Ganpat (A4) are concerned, it is difficult to
uphold their conviction under Section 302 of the I.P.C. r/w 149 of
I.P.C. Instead, considering their role, they would be liable to be
convicted for the offence punishable under Section 324 r/w 149
of I.P.C. alongwith other co-accused.
49. As far as assault on Tanaji (PW 5) is concerned, the
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evidence of PW 10 - Navnath and PW 5 - Tanaji is consistent with
respect to the fact, that it was Balaji (A8) who gave a sickle
blow on Tanaji's head, whereas, Bibhishan (A13) assaulted
Tanaji with an axe on his hand and leg. According to PW 5 -
Tanaji, Kisan (A2) also assaulted him with a sword on his head,
whereas, according to PW 10 - Navnath, it was Yuvraj (A12),
Kisan (A2) and Ganpat (A4) who assaulted Tanaji with swords
and sticks on his hand and leg. It is pertinent to note, that Tanaji
has not spelt out or disclosed the names of Yuvraj (A12) and
Ganpat (A4), as having assaulted him. Hence, considering the
evidence on record, in particular, the evidence of PW 5 - Tanaji,
the injured witness himself, we are of the opinion that it was
Balaji (A8) and Kisan (A2), who assaulted him with a sickle and
sword on his head and that Bibhishan (A13) assaulted him with
an axe on his leg and hand. The injuries caused by Balaji (A8),
Kisan (A2) and Bibhishan (A13) are consistent with the medical
evidence on record. The medical evidence of PW 9 - Dr.Ingale
shows that Tanaji was in hospital for 14 days; that he was
brought unconscious to the hospital and regained consciousness
only on 24th November, 2003. In the circumstances, we find
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that the conviction recorded by the trial Court of the appellants
i.e. Kisan Raut (A2), Ganpat Sarde (A4), Balaji Gidde (A8),
Yuvraj Raut (A12), Bibhishan Raut (A13), for the offence
punishable under Section 307 r/w 149 of I.P.C. ought to be set
aside. Instead, considering the evidence on record, we find that
Balaji (A8) and Kisan (A2) would be liable to be convicted for
assaulting Tanaji on his head, with a sickle and sword, under
Section 326 r/w 149 of I.P.C. As far as appellants, Bibhishan
(A13), Yuvraj (A12) and Ganpat (A4) are concerned, they would
be liable to be convicted, for the offence punishable under
Section 324 r/w 149 of I.P.C. along with other co-accused. From
the acts of these members, it can be inferred that they had not
shared the common object of Balaji (A8) and Kisan (A2) vis-a-
vis attack on Tanaji i.e. to cause grievous injuries to Tanaji. As far
as conviction of all the other accused are concerned, all have
been named by the witnesses, and as such, we are of the
opinion that there conviction under Section 324 r/w 149 and
Section 323 r/w 149 and under Section 147 r/w 149 and 148 r/w
149 of I.P.C, requires to be upheld, however we are of the
opinion, that the sentences imposed on them ought to be
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modified, keeping in mind, their acts/role. We are also of the
opinion, that the sentence imposed on some of the appellant-
accused for the offences punishable under Section 324 r/w 149
of I.P.C. and Section 323 r/w 149 of I.P.C. ought to be reduced
and instead propose to enhance the fine amount and award
compensation to the injured under Section 357(1) of Code of
Criminal Procedure. It is pertinent to note, that the Apex
Court in the case of Hari Singh v/s Sukhbir Singh and
Others, reported in (1988) 4 SCC 551, lamented the
failure of the Courts in awarding compensation to the
victims in terms of Section 357 (1) of the Cr.P.C. The Court
recommended to all Courts to exercise the power available
under Section 357 of the Cr.P.C. liberally so as to meet the
ends of justice. The Court said:
".... Sub-section (1) of Section 357 provides power to award
compensation to victims of the offence out of the sentence of fine
imposed on accused... It is an important provision but Courts
have seldom invoked it. Perhaps due to ignorance of the
object of it. It empowers the Court to award compensation to
victims while passing judgment of conviction. In addition to
conviction, the Court may order the accused to pay some amount
by way of compensation to victim who has suffered by the action
of accused. It may be noted that this power of Courts to award
compensation is not ancillary to other sentences but it is in
addition thereto. This power was intended to do something to
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reassure the victim that he or she is not forgotten in the criminal
justice system. It is a measure of responding appropriately to
crime as well of reconciling the victim with the offender. It is, to
some extent, a constructive approach to crimes. It is indeed a
step forward in our criminal justice system. We, therefore,
recommend to all Courts to exercise this power liberally so as to
meet the ends of justice in a better way."
50. Needless to state, that the amount of
compensation, would be determined in the facts and
circumstances of each case, the nature of the crime, the
justness of the claim and the capacity of the accused to pay.
As far as capacity to pay fine is concerned, we had heard
learned senior counsel, on this point and have accordingly
decided to impose fine and award compensation to the wife
of deceased-Machindra and to Tanaji, under Section 357(1)
of Code of Criminal Procedure, to meet the ends of justice.
For the aforesaid reasons, we pass the following order:-
ORDER
(i) Criminal Appeals Nos.563 and 603 of 2005 are partly
allowed;
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(ii) The conviction and sentence of Hanmant Gidde (A7), Yuvraj
Raut (A12), Kisan Raut (A2) and Ganpat Sarde (A4), for the
offence punishable under Section 302 r/w 149 of the I.P.C.,
is set aside. Instead, we convict Hanmant Gidde (A7) for
the offence punishable under Section 326 r/w 149 of I.P.C.
and sentence him to suffer rigorous imprisonment for 7
years and to pay fine of Rs.50,000/- in default to suffer
simple imprisonment for 6 months, for the death of
Machindra. As far as, Yuvraj (A12), Kisan (A2) and Ganpat
(A4) are concerned, they are convicted for the offence
punishable under Section 324 r/w 149 of the I.P.C and are
sentenced to suffer rigorous imprisonment for 3 months
and to pay fine of Rs.20,000/- each, in default, to suffer
simple imprisonment for 3 months, for the assault on
Machindra;
(iii) The conviction and sentence of Kisan Raut (A2), Ganpat
Sarde (A4), Balaji Gidde (A8), Yuvraj Raut (A12),
Bibhishan Raut (A13), for the offence punishable under
Section 307 r/w 149 of I.P.C. is set aside. Instead, we
convict Balaji (A8) and Kisan (A2) for the offence
punishable under Section 326 r/w 149 of I.P.C. for the
assault on Tanaji, and sentence them to suffer rigorous
imprisonment for 5 years and to pay fine of Rs.25,000/-
each, in default to suffer simple imprisonment for 6
months, for the assault on Tanaji. As far as Yuvraj (A12) and
Ganpat (A4), are concerned they are convicted for the
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offence punishable under Section 324 r/w 149 of the I.P.C.
along with the other co-accused and are sentenced to
suffer rigorous imprisonment for 3 months and to pay fine
of Rs.15,000/- each, in default, to suffer simple
imprisonment for 3 months, for the assault on Tanaji;
(iv) The conviction and sentence of Mahadeo Saudagar Gidde
(A1), Sarjerao Pralhad Raut (A3), Suresh Rajaram Sarde
(A5), Shantabai Ganpat Gidde, (A6), Balaji Ganpat Gidde
(A8), Dattatraya Saudagar Gidde, (A9), Hanmant Eknath
Laad (A10), Suryabhan Bhagwan Ubale (A11), Bibhishan
Vitthal Raut (A13), Tukaram Rajaram Sarde, (A14) and
Shobha Yuvraj Raut, (A15), for the offence punishable
under Section 324 r/w 149 of the I.P.C i.e. assault on
deceased - Machindra is confirmed. However, their
sentences are reduced and modified. The said accused
shall now suffer imprisonment of 3 months and shall pay
fine of Rs.15,000/- each, in default, to suffer simple
imprisonment for 3 months;
(v) The conviction and sentence of Mahadeo Saudagar Gidde
(A1), Sarjerao Pralhad Raut (A3), Suresh Rajaram Sarde
(A5), Shantabai Ganpat Gidde, (A6), Hanmant Ganpat
Gidde (A7), Dattatraya Saudagar Gidde, (A9) Hanmant
Eknath Laad (A10), Suryabhan Bhagwan Ubale (A11),
Tukaram Rajaram Sarde (A14) and Shobha Yuvraj Raut,
(A15) for the offence punishable under Section 324 r/w
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149 of the I.P.C. i.e. for the assault on Tanaji, is confirmed.
However, their sentences are reduced and modified. The
accused shall now suffer imprisonment of 3 months and to
pay fine of Rs.10,000/- each, in default, to suffer simple
imprisonment for 3 months;
(vi) The conviction of Mahadeo Gidde (A1), Sarjerao Raut
(A3), Suresh Sarde (A5), Shantabai Gidde, (A6),
Dattatraya Gidde (A9), Hanmant Laad (A10), Suryabhan
Ubale (A11), Tukaram Sarde (A14) and Shobha Raut (A15),
for the offence punishable under Section 323 r/w 149 of
I.P.C. i.e. for the assault of Navnath is confirmed. However,
their sentences are modified and reduced to undergone
sentence.
(vii) The conviction of all the appellants under Section 147 r/w
149 of I.P.C and under Section 148 r/w 149 of I.P.C are
maintained;
(viii) The conviction and sentence of Hanmant Gidde (A7), for
the offence punishable under Section 504 of the I.P.C, is
confirmed.
(All the sentences to run concurrently).
(ix) From the fine amounts so recovered, the trial Court shall
pay compensation under Section 357(1) of Code of Criminal
Procedure, to the wife of the deceased - Machindra and to
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Tanaji, as awarded hereinabove.
(x) The appellants are on bail. Their bail bonds stand
cancelled. The appellants to surrender within 3 weeks.
51. In view of the aforesaid, Criminal Application
Nos.1384 and 1385 of 2016, filed by the State seeking
cancellation of appellants bail, do not survive and the same are
disposed of.
(REVATI MOHITE DERE, J.) (V.K.TAHILRAMANI, J.)
