Bombay High Court
Gajendra Kishan Dhage And Another vs The State Of Maharashtra on 11 January, 2018
Bench: T.V. Nalawade
Cri. Appeal No. 342/2013
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 342 OF 2013
1. Gajendra s/o. Kishan Dhage,
Age 40 years, Occu. Labour,
R/o. Ridhora, Tq. Basmath,
Dist. Parbhani.
2. Hari @ Nana Kishan Dhage,
Age 55 years, Occu. Labour,
R/o. Ridhora, Tq. Basmath,
Dist. Parbhani.
(Presently they are in jail) ....Appellants.
Versus
The State of Maharashtra ....Respondent.
Mr. S.P. Brahme, Advocate for appellants (Appointed).
Mr. V.S. Badakh, APP for respondent/State.
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
Reserved on : 15/12/2017
Pronounced on : 11/01/2018
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The appeal is filed against judgment and order of Sessions
Trial No. 113/2010, which was pending in the Court of learned
Additional Sessions Judge, Parbhani. The appellants are convicted for
the offences punishable under sections 302, 324 r/w. 149 of Indian
Penal Code (hereinafter referred to as 'IPC' for short) and also for the
offence punishable under section 148 of IPC. The sentence of
imprisonment for life is given and fine is also imposed on the
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appellants. Heard both the sides.
2) In short, the facts leading to the institution of present
proceeding, can be stated as follows :-
The incident took place at Dhangar Takali, Tahsil Purna,
District Parbhani. Deceased Gyanoji was real brother of Uttam Dhage,
who gave report about the incident. Other deceased Sanjay was son of
Ganesh and Ganesh is also real brother of Uttam.
3) The first informant and his brothers have ancestral
agricultural land at village Ridhora, admeasuring 11 Acres. Adjacent to
this land, there is land of Kishan Dhage and others who are uncles of
first informant. Kishan Dhage and his sons were using the land of first
informant as a way and due to that, there was dispute between the
two sides. There were quarrels and the dispute was going on for about
10 years. Both the sides had given reports against each others due to
the dispute and the litigation was also pending in respect of that
dispute.
4) Due to harassment, which the first informant and his
brothers were suffering from Kishan and his sons, they left Ridhora
and they shifted to Dhangar Takali situated at the distance of 15 k.m.
from Ridhora. At Dhangar Takali also, there were relatives of Kishan
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Dhage like Kerba, Limbaji and they started quarreling with first
informant and his brothers, who had started living at Dhangar Takali.
Due to the dispute, accused Kerba, Uttam, Limbaji who were living at
Dhangar Takali, started saying that they would not allow the first
informant and his brothers to stay at Dhangar Takali also.
5) The incident in question took place on the night between
9.7.2002 and 10.7.2002. The first informant was sleeping in front of
his hut from Dhangar Takali with his family. Deceased Gyanoji was
sleeping in front of his hut. Sanjay and Sidharth, sons of Ganesh were
also sleeping in front of hut of Gyanoji as they were living with
Gyanoji. At some distance from the hut of Gyanoji, there is hut of
Latabai, daughter of Gyanoji and she was also sleeping outside of the
hut. It was summer and most of the persons were sleeping in front of
their respective huts.
6) At about 2.00 a.m. of 10.7.2002 the first informant woke
up as he felt that he was being assaulted. He noticed that in all nine
persons including the present appellants had come to them with
sticks, iron pipes and knife and they had started assaulting all the
persons from the side of first informant, who were sleeping in front of
their respective huts. Present appellant Gajendra assaulted the first
informant by using iron pipe. Gajendra assaulted Latabai also. Then
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they turned towards Sanjay and they assaulted Sanjay with sticks and
iron pipes and also by using knife and ultimately they threw a stone on
Sanjay. They assaulted Gyanoji also and when they confirmed that
both Gyanoji and Sanjay were dead, they left the place. Appellant No.
2 Hari alias Nana was present in aforesaid nine persons and he also
used iron pipe for assaulting the injured witnesses and the two
deceased persons. Both the appellants are sons of Kishan with whom
the first informant and his brothers had the dispute.
7) Dhangar Takali is situated at some distance from the
village. On that night, the first informant and other injured could not
take any steps. On the next day, Uttam Dhage approached Purna
police and gave report. The crime at C.R. No. 65/2002 came to be
registered at 10.15 a.m. of 10.7.2002 against the nine persons for
aforesaid offences and also for offence punishable under section 120-B
of IPC.
8) Police prepared spot panchanama by visiting the place of
offence and the inquest was prepared on both the dead bodies. The
injured witnesses were referred to Government Hospital for medical
examination and they were medically examined. The P.M. was
conducted on the dead bodies of Gyanoji and Sanjay. They died due to
head injuries which had caused intracranial haemorrhage. Initially
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some of the accused were arrested and chargesheet was filed against
them. Present appellants and some other accused were shown as
absconding accused and chargesheet was filed against them under
section 299 of Criminal Procedure Code (hereinafter referred to as
'Cr.P.C.' for short). Present appellants came to be arrested in the year
2010 and 2011 and supplementary chargesheets were filed against
them.
9) The case against five accused persons against whom
chargesheet was filed in the past was given number as Sessions Trial
No. 154/2002 and the present case is given different number viz.
Sessions Trial No. 113/2010. Charge was framed against both the
accused for aforesaid offences. Both the accused pleaded not guilty.
The evidence was already recorded under section 299 of Cr.P.C. and
this evidence recorded in previous case was adopted by the accused
persons. However, all the witnesses were recalled for giving an
opportunity to the accused persons to cross examine them. In all eight
witnesses are examined in the present matter. The Trial Court has
believed the direct evidence. There is corroboration of circumstantial
evidence to the direct evidence and so, conviction is given for
murdering both Gyanoji and Sanjay.
10) The direct evidence is given by first informant Uttam
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Dhage (PW 3), Sidharth (PW 4) and Latabai (PW 5). Sidharth is real
brother of deceased Sanjay. The tenor of cross examination of all the
three witnesses shows that the accused did not dispute their presence
on the spot at the relevant time. Further, there is circumstantial check
to their versions which is being discussed at later stage.
11) The aforesaid relationship is not disputed by the defence.
Even the motive behind the crime is not disputed and that can be seen
from the tenor of cross examination made by the defence. The
defence itself has brought on record the particulars of dispute
including the names of persons who were involved in the dispute. It is
not disputed that first informant Uttam (PW 3) and his brothers were
having 11 Acres of agricultural land at Ridhora and due to the dispute
with Kishan, the father of present appellants, they had left Ridhora
and they had shifted to Dhangar Takali. It is also not disputed that
atleast three accused persons out of nine were living at Dhangar Takali
with their families and in the vicinity of the houses of Gyanoji, first
informant and also of Latabai. In the cross examination, it is brought
on the record that the dispute was going on for about 10 years.
Evidence is given by all the three eye witnesses that even at Dhangar
Takali, the side of the accused was giving threats to them as they
wanted to see that persons of complainant's side leave Dhangar Takali.
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12) Evidence is given by Uttam (PW 3) that house of Gyanoji
was adjacent to his house at Dhangar Takali. In the cross examination,
it is brought on the record that the distance between two houses was
hardly 40 ft. Similarly, there was the house of Latabai at some
distance from the house of Gyanoji. Uttam (PW 3) has given evidence
that on that night he was sleeping with his family in front of his hut
and deceased Sanjay and witness Sidharth (PW 4) were sleeping in
front of house of Gyanoji as they were living with Gyanoji. He has
given evidence that Latabai (PW 5), daughter of Gyanoji was sleeping
in front of her house. Evidence of Latabai (PW 5) shows that her
husband was not at station and so, she was sleeping in front of her
hut as there was the company of her father.
13) Uttam (PW 3) has given evidence that on that night he
woke up due to bleating of she goats of Gyanoji. It is brought on the
record that Dhangar Takali is situated at some distance from village
and village persons cannot hear anything if any incident takes place at
Dhangar Takali. Evidence is given by all the three eye witnesses that
there were hardly 10 huts which included the three huts of witnesses
and huts were constructed on public property, Gayran. Uttam (PW 3)
has given evidence that when he woke up, he noticed that all the nine
accused were there. He has given evidence that all the accused
started giving beating to him and other persons who were sleeping in
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front of their respective huts. Uttam (PW 3) has given evidence that
present appellants, Gajendra and Nana were holding iron pipes and
they were using the iron pipes as weapons.
14) Uttam (PW 3) has given evidence that Gajendra gave blow
of iron pipe on his head and then Gajendra, Nana and some other
accused moved towards Sanjay and they assaulted Sanjay. He has
given evidence that other accused like Limbaji, Shivaji, Kerba, Pralhad
were holding sticks and they assaulted Sanjay by using sticks. He has
given evidence that when Sanjay tried to run away to escape, he was
held in front of house of Limbaji, one of the accused, and there, he
was given severe beating with aforesaid weapons. He has given
evidence that when Sanjay collapsed in front of house of Limbaji, the
accused turned back towards the house of Gyanoji and there, they
gave severe beating to Gyanoji. He has given evidence that Gajendra
had assaulted Latabai also. He has given evidence that ultimately,
accused Nana threw a stone on Gyanoji and when they saw that
Gyanoji and Sanjay were lying in injured condition, they left the place.
His evidence shows that dead body of Gyanoji was lying in front of hut
of Gyanoji and dead body of Sanjay was lying in front of house of
Limbaji. Evidence of Uttam (PW 3) shows that incident took place at
about 2.00 a.m. Uttam (PW 3) has given evidence that on that night
he and other injured could not take any steps and both Gyanoji and
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Sanjay died before them. He has given evidence that there was no
vehicle available and after 6.00 a.m. they took steps and they went to
police station. He has given evidence that they reached the police
station at about 7.00 to 7.30 a.m. and after that police came to the
spot of offence. The report given by him to police is proved as Exh. 42.
15) The tenor of the cross examination of Uttam (PW 3) shows
that defence tried to create a probability that it was dark and it was
not possible for Uttam to see the accused and identify them. A weak
attempt was made to create a probability that some dacoits had
assaulted them. They were living in the huts and there were only few
goats of Gyanoji in front of hut of Gyanoji. Nothing was stolen. Though
one witness had stated before police that chilly powder was thrown at
them, but the name of one of accused viz. Rajendra was taken as a
person who had thrown the chilly powder at them during incident.
Thus, no probability is created by the defence that dacoits had
attacked them. It is not disputed that there was long standing enmity,
the enmity was there for more than 10 years and all the witnesses
knew accused for many years. Some accused were living at Dhangar
Takali itself and the accused are relatives of injured witnesses. In view
of these circumstances, even if it is presumed that it was no moon day
and there was no light of electricity, it was not difficult for the injured
witnesses to see and identify the assailants. Much of the cross
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examination of Uttam (PW 3) and other eye witnesses is on this point
and omissions in that regard in their previous statements are brought
on record. These witnesses have given evidence that at that time,
there was the light and in the evidence of Latabai (PW 5), it is brought
on the record by the defence itself that there was facility of light at all
the three points like the house of first informant, the house of Gyanoji
and the house of Limbaji. Thus, no probability is created that there
was no opportunity to the injured witnesses to see the faces of
assailants and to identify them and it was the assault of some dacoits
and the accused persons were not involved in the assault.
16) Uttam (PW 3) is cross examined at length to point out the
omissions in F.I.R. in respect of some evidence given by him in the
Court and the omissions pointed out to him are as under :-
(i) He had not mentioned in the F.I.R. specifically that in
the light of electricity he had seen the incident.
(ii) He had not stated specifically in the F.I.R. the blows
were given to deceased Sanjay by some accused like accused
Shivaji, Kerba, Uttam and Limbaji. In the present matter,
other accused are involved and not these accused who had
faced the trial in the past.
(iii) He had not stated in the F.I.R. that Sanjay tried to
escape by running away, but he was caught in front of house
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of Limbaji. Considering the distance between the house of
Limbaji and house of Gyanoji, it can be said that this
omission is not that material as the persons who were at
receiving end must have tried to run away when they
noticed that nine persons were assaulting them.
(iv) He had not stated in the F.I.R. that after giving beating
to Sanjay in front of house of Limbaji, all the accused
persons had returned to the house of Gyanoji and in front of
house of Gyanoji, assault was made on Gyanoji.
(v) He had not stated in the F.I.R. that accused Limbaji had
given stick blow to Latabai.
(vi) He had not stated in the F.I.R. that accused Nana,
present appellant had assaulted Baban.
17) In the cross examination of Uttam (PW 3), it is brought on
the record that one requires hardly half an hour to cover the distance
between the place of incident and police station if there is conveyance
like auto-rickshaw or other vehicle. Uttam (PW 3) has admitted that
he did not approach Police Patil of village and he directly went to Purna
Police Station on the next morning. He has admitted in his evidence
that he gave report to police at about 10.00 a.m.
18) Though there are aforesaid omissions in the F.I.R., it can
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be said that the omissions are not that material as only the particulars
of assault are given in evidence which were not there. When there is
charge for the offence of murder read with section 149 of IPC, the
prosecution is expected to prove the formation of unlawful assembly
and that, the accused was member of such unlawful assembly. If the
object of unlawful assembly was known and that was achieved, then
absence of such particulars cannot help the accused and accused
cannot get benefit of that circumstance. Due to this position of law,
this Court holds that aforesaid omissions have not affected the
credibility of Uttam (PW 3) and his evidence cannot be discarded.
Further, there is circumstantial check to the evidence of Uttam (PW 3).
What is said in respect of evidence of Uttam can also be said in
respect of evidence given by other two injured witnesses like Sidharth
(PW 4) and Latabai (PW 5). Similar omissions in their previous
statements are brought on record by the defence.
19) Sidharth (PW 4), real brother of deceased Sanjay has
given evidence which is similar to the evidence of Uttam (PW 3). He
has given evidence that on that night he and Sanjay were sleeping in
front of hut of Gyanoji along with Gyanoji. He has given evidence that
the complainant was sleeping in front of his house with his family.
20) Sidharth (PW 4) has given evidence that in the night time
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when accused persons came to the place where they were sleeping,
accused Gajendra was armed with iron rod (iron pipe) and accused
Nana was armed with iron pipe. He has given evidence that accused
Gajendra, Nana and other accused assaulted Sanjay. He has given
evidence that Gajendra assaulted complainant and Latabai also. He
has given evidence that after that accused Nana and other accused
like Pralhad and Raju assaulted Gyanoji. He has given evidence that
Nana then threw big stone on the person of Gyanoji. His evidence
shows that the two injured died in their presence within half an hour
of the incident. He has given evidence that he sustained injuries in the
incident as he was assaulted and he was examined in the Government
Hospital.
21) In the evidence of Sidharth (PW 4), first time it was
suggested during cross examination that he and Latabai were not
present on the spot on that night. Though the evidence of Sidharth
shows that no house was allotted to him in that area by the
Government, he stuck to his version that he was living there and on
that night he was present on the spot of offence.
22) In the evidence of Uttam (PW 3) and Sidharth (PW 4), it is
brought on the record that eye sight of Gyanoji was weak and he was
virtually blind. Both the witnesses have given evidence that first
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beating was given to Sanjay and then accused assaulted Gyanoji. It is
brought on the record in the evidence of Sidharth (PW 4) that his
statement was recorded by police between 11.00 a.m. and 12.00 noon
of the next morning and immediately after recording the statement of
first informant Uttam (PW 3). If he was not present there, his police
statement would not have been recorded immediately after
registration of crime. Further, his name was mentioned in the F.I.R. In
the previous case when he was cross examined, it was suggested to
him that he started running away after starting of the incident and he
sustained injury due to fall. This suggestion was denied.
23) In the evidence of Sidharth (PW 4), the defence has also
brought on the record that due to the dispute at Ridhora, they had left
Ridhora and they had shifted to Dhangar Takali. In his evidence, it is
brought on the record that the complainant's side had dispute with
father of appellants, Kishan and one Bhujang. Bhujang is also close
relative of accused persons.
24) In the cross examination of Sidharth (PW 4), the omissions
in police statement are pointed out to him and they are as under :-
(i) He had not stated before police that on that night he
and Sanjay were sleeping together in front of hut of Gyanoji
and the complainant was sleeping in front of his own hut with
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his family.
(ii) He had not stated before police that when accused
were giving beating to Sanjay, he had requested accused not
to assault Sanjay.
(iii) He had not stated before police that accused Gajendra
had assaulted Latabai with pipe.
(iv) He had not stated before police that accused Nana had
assaulted Baban with pipe.
25) In the cross examination of Sidharth (PW 4) made in the
present matter, it is brought on the record that Uttam (PW 3) was
living at Rahul Nagar, Parbhani. This admission does not mean that on
that night Uttam was not present on the spot of incident. The evidence
of Uttam (PW 3) shows that he had hut there and on that night he was
present there. It is Uttam, who gave report to police immediately after
the incident and to Uttam, it is not suggested that he was not present
on the spot at the relevant time. On the contrary, it is suggested to
him that he could not see and identify the accused persons due to
darkness.
26) Latabai (PW 5) has given evidence which is similar to the
evidence of aforesaid two eye witnesses. Her evidence shows that her
hut is situated at the distance of 20-25 ft. away from the hut of
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Gyanoji. She has given evidence that at the relevant time, she was
living there and she was sleeping in front of hut as others were
sleeping there and her husband was not at home.
27) Latabai (PW 5) has given evidence that during the incident
accused Gajendra and Nana used iron rods. She has given evidence
that the accused first gave beating to Sanjay and after that they gave
beating to Gyanoji. She has given evidence that when she tried to
intervene, Gajendra gave beating to her by using iron rod. She has
given evidence against Nana also. She has given evidence that
accused Nana threw a stone on the person of Gyanoji.
28) In the cross examination of Latabai (PW 5), following
portions from her police statement were confronted to her and she has
denied those portions.
(i) She had stated to police that accused Rajendra had
thrown chilly powder at them during incident.
(ii) She had stated before police that when witnesses
raised hue and cry, the accused ran away.
29) Some omissions in the police statement of Latabai were
brought to her notice and they are as under :-
(i) She had not specifically stated before police the
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weapons which each accused was holding.
(ii) She had not stated before police that when she had
tried to save Gyanoji, accused Nana had pulled her aside and
then accused Gajendra had given blow of iron rod to her.
30) The observations are already made by this Court with
regard to the use of provision of section 149 of IPC. The aforesaid
omissions cannot be called as material omissions and disowning some
portion from police statement by Latabai cannot affect her veracity.
She has taken the names of all the accused and on that point, the
evidence is not hit by omission.
31) If the evidence of aforesaid three eye witnesses is
considered as a whole, it can be said that their evidence is consistent
with each other. They have given evidence on incident and also on
motive. They have described the weapons used by the accused
persons. In that background, the medical evidence can be considered.
The aforesaid discussion shows that the defence did not dispute that
Gyanoji and Sanjay were murdered.
32) Dr. Dwarkadas (PW 1) is examined to give evidence on
P.M. examination. He conducted P.M. examination on the dead body of
Gyanoji on 10.7.2002 between 2.20 p.m. and 3.10 p.m. He found
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rigor mortis over upper limbs and lower limbs, though on left lower
limb he could not notice rigor mortis as there was fracture to that
limb. He found injuries over legs, parietal region, occipital region. In
column No. 17 of Exh. 69, the injuries described are as under :-
(i) Right leg below knee was fractured at three places; one
fracture was at upper 1/3rd tibia and two at middle 1/3rd.
(ii) Lacerated injuries below right knee three in numbers :
(1) 1/2" x 1/2" x 1/4" deep,
(2) 1/2" x 1/2" x 1"
(3) 3/4" x 1/4" x 1/2"
(iii) Fracture of right radio ulna bone about its middle 1/3.
(iv) Lacerated injuries over posterior surface of right fore-
arm two in numbers :
(1) 3/4" x 1/2" x 1/2" deep
(2) 1/2" x 1/2" x 1/2 " deep
(v) Lacerated injury on occipital area measuring about 1-
1/2" x 1/2" x 3/4" deep.
33) Dr. Dwarkdas (PW 1) has given evidence that aforesaid
injuries were antimortem in nature. The evidence of the doctor shows
that there was depressed fracture of skull at occipital region and due
to that, there was sub-dural haematoma and intracranial bleeding. The
death took place due to haemorrhagic shock due to intracranial
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bleeding and it was caused due to head injury mentioned in column
No. 17.
34) Dr. Dwarkdas (PW 1) conducted P.M. examination on the
dead body of Sanjay Dhage on 10.7.2002 between 12.00 p.m. and
2.15 p.m. The P.M. report is at Exh. 70. The evidence shows that rigor
mortis was present in upper and lower limbs. In column No. 17, he
has described the injuries and they are as under :-
(i) Lacerated injury on left temporal region measuring
about 1-1/2 x 3/4 inches, there was corresponding fracture
of under lining bone.
(ii) Contusion on back right loin region oblique in direction
measuring about 2-1/2" x 1/2"
(iii) Contusion on right gluteal region transverse in direction
3 x 1/2 inch,
(iv) Contusion on right gluteal region oblique in direction 2
x 1/2 inch.
(v) Lacerated injury on posterior surface of it. Elbow
vertical in direction measuring about 3/4" x 1/2", there was
fracture of under line bone.
(vi) Lacerated injury on anteromedial surface of arm 1/2 x
1/2".
(vii) There was fracture of upper 1/3rd of tibia left.
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(vii-A)Lacerated injuries on anterior side of left leg, three in
number measuring about 1/2 x 1/2 x 1-1/2", 2-1/2" x 1/4" x
1 inch deep, 3 -1/4 x 1/4 x 1" deep, there was fracture of
under line bone.
(viii) Fracture of left tibia fibula.
(ix) Lacerated injury on anterior surface of right leg 1/2 x
1/2 x 3/4" deep.
(x) Lacerated injuries below left knee two in number, 1/2 x
1/2 x 1" deep and 3/4 x 1/2 x 1".
(xi) Lacerated injury on left knee 1" x 3/4" x 1/2" deep.
35) The evidence of Dr. Dwarkadas (PW 1) and Exh. 70 show
that there were injuries at temporal region, on back, at right gluetal
region, left elbow, right arm, left leg and right leg. All these injuries
were antimortem in nature. The evidence shows that due to the
injuries to the head, temporal region, there was depressed fracture of
skull at temporal bone and due to that there was sub-dural and
intracranial haemorrhage. Sanjay also died due to haemorrhagic shock
due to intracranial bleeding. It was caused due to aforesaid head
injury. In view of injuries described in Exhs. 69 and 70, it can be said
that the medical evidence is consistent with the oral evidence of
aforesaid three eye witnesses and it gives corroboration to the
versions of all the three eye witnesses.
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36) Spot panchanama at Exh. 100 is not disputed and it is also
proved in the evidence of Baliram (PW 8), Investigating Officer. This
document is consistent with the aforesaid oral evidence. Blood was
lying in front of house of of Limbaji where the dead body of Sanjay
was found. This spot was shown by the first informant. The distance
between the two dead bodies was mentioned as 100 ft. in the spot
panchanama. It is already observed that the distance between the
house of Gyanoji and first informant was around 40 ft. and on the
other side of house, there was the house of Latabai and after that
there was the house of accused Limbaji. The spot panchanama gives
general corroboration to the evidence of eye witnesses as the blood
was found at the place where the incident had taken place as per the
versions of three eye witnesses. There were even pieces of bangles
showing that Latabai was involved in the incident. Hand sketch map of
spot is there on Exh. 100.
37) Dr. Vithal (PW 2) is examined by prosecution to prove the
injury certificates issued in respect of witnesses Sidharth and Latabai.
The certificates are at Exhs. 74 and 73. This witness was attached to
Kantheshwar Primary Health Center. His evidence shows that he was
called to Purna Rural Hospital as one medical officer from Purna Rural
Hospital was on leave. One medical Officer Dr. Dwarkadas (PW 1), who
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conducted P.M. examinations was available there. Much was argued
before the Trial Court and before this Court on this circumstance, but
nothing is brought on the record to create a probability that Dr. Vithal
was interested in the complainant's side. His evidence shows that two
injuries were found on the person of Latabai and she was referred to
Nanded Civil Hospital for further examination as there was suspected
fracture. He found three injuries on the person of Sidharth. The
injuries were caused by hard and blunt object and age of the injuries
was within 24 hours. Thus, there is medical evidence to show that
both these witnesses were present on the spot and they were also
assaulted.
38) Prosecution has examined two Investigating Officers like
Surendra (PW 7) and Baliram (PW 8). Both of them have given
evidence that present appellants were absconding and they came to
be arrested in the year 2010 and 2011. The appellants have only
denied that they were absconding and they have indirectly taken the
defence of alibi, but no material is produced in that regard. Accused
No.1 Pralhad, who was arrested is real brother of appellants and it
cannot be said that they had no knowledge that police were searching
for them and they were named in the F.I.R. In view of the provision of
section 8 of the Evidence Act, this conduct of absconding of appellants
is relevant and this circumstance can be used against the appellants.
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It is already observed that there was motive for the crime and the
complainant's side had dispute mainly with cousin, father of
appellants. As they came to be arrested many years after the date of
incident, there was no possibility of collecting other circumstantial
evidence like clothes having blood stains from them.
39) The learned counsel for appellants placed reliance on the
observations made by the Apex Court in the case reported as AIR
2000 (SC) 1416 [Nirmal Singh Vs. State of Haryana]. The Apex
Court has discussed the provision of section 299 of Cr.P.C. and the
purpose behind it. Present matter is on better footing and all the
witnesses, whose evidence was recorded under section 299 of Cr.P.C.
were available. These witnesses are cross examined by the learned
counsel appointed by the present appellants. The Apex Court has laid
down that in view of the provision of section 299 of Cr.P.C. and section
33 of the Evidence Act, conviction can be based on the evidence
recorded in absence of the accused. Further, the previously recorded
evidence is accepted by the accused in the present matter.
40) Reliance was placed by the learned counsel for appellants
on other case reported as AIR 2009 (SCW) 3898 [Jayendra
Vishnu Thakur Vs. State of Maharashtra]. The facts of the
reported case were different. In the present matter, the witnesses
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were available and the evidence already recorded against other
accused is accepted by the present appellants.
41) The learned counsel for the appellants placed reliance on
some observations made by the Apex Court in the case reported as
AIR 2014 (SC)(Supp) 1564 [Vijay Ranglal Chourasia Vs. State
of Gujarat]. The case is on section 299 of Cr.P.C. and also on
evidence of test identification parade. In that case the High Court had
not addressed the point as to whether the evidence recorded in
previous case could have been transferred to the case against the
appellant and whether in absence of that evidence, there was any
other evidence against the appellant. The facts of the present matter
are totally different.
42) The discussion made above shows that there is more than
sufficient evidence against the present appellants to show that on that
night they were members of unlawful assembly and the object of
unlawful assembly was to assault the persons of complainant's side
and finish the persons of rival group. This object was achieved by
unlawful assembly and two murders were committed. The Trial Court
has held the appellants guilty of the offence punishable under section
302 r/w. 149 of IPC for committing two murders and also for the
offence punishable under section 324 r/w. 149 of IPC for causing
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injuries to aforesaid witnesses. They are also held guilty for the
offence punishable under section 148 of IPC as they were armed with
deadly weapons. This Court sees no reason to interfere in that finding.
Life imprisonment is given and as two murders were committed by the
unlawful assembly. This Court holds that all the relevant circumstances
are considered by the Court and proper punishment is given. Thus,
there is nothing for interference in the appeal. The appeal stands
dismissed. The fees of the counsel appointed by this Court to
represent the appellants is quantified as Rs.7,000/- (Rupees seven
thousand).
[ S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
