Bombay High Court
The State Of Maharashtra vs Vijay Gulab Garad And Anr on 16 December, 2021
Bench: S.S. Shinde, Surendra Pandharinath Tavade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 478 OF 2013
Ganesh Gulab Garad ...Appellant
Versus
The State of Maharashtra ...Respondent
ALONG WITH
CRIMINAL APPEAL NO. 839 OF 2013
The State of Maharashtra ...Appellant
Versus
Vijay Gulab Garad Anr. ...Respondents
...
Mr. Daulat G. Khamkar for appellant in Appeal No. 478/2013 and
Respondent in Appeal No. 839/2013.
Mr. S.S. Hulke, APP for Appellant- State in Appeal No. 839/2013
and Respondent-State in Appeal No. 478/2013.
Mr. Jay S. Patil, i/by. Mr. V.V. Purwant for Original Complainant.
...
CORAM : S. S. SHINDE
S. P. TAVADE, JJ.
RESERVED ON: 26th NOVEMBER, 2021.
PRONOUNCED ON: 16th DECEMBER, 2021.
JUDGMENT: [PER S.S. SHINDE, J.]
1. Criminal Appeal No. 478 of 2013 is fled by the appellant
original accused No. 1 against the impugned judgment and order
dated 04.03.2013 passed in Sessions Case No. 275 of 2010 by the
Bhagyawant Punde
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learned Additional Sessions Judge, Solapur by which he has been
convicted for the offences punishable under Sections 302 and 307
of the Indian Penal Code (for short 'IPC').
2. Criminal Appeal No. 839 of 2013 is fled by the State
against the said impugned judgment and order dated 04.03.2013
thereby acquitting the Respondents i.e. original accused No. 1 and
3.
3. Both the appeals are arising out of the same judgment
and order, hence, we deem it appropriate to dispose of the same by
this common judgment.
4. The prosecution story as narrated in the appeal memo is
as under:-
On 14.06.2010 at about 15.00 hrs complainant Sunil
Kambale fled complaint with Karmala Police Station and contended
that he is the elder brother of Dnyaneshwar Kambale. Dnyaneshwar
Kambale was the President of Republic Party of India (for short
'RPI') since last 15 years of village Jeur. In village Jeur there are 8 to
10 houses of Matang community and 25 to 30 houses of Harijan
community. Since from 2008 accused no. 2 Ganesh was quarreling
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with Dnyaneshwar on the ground that as he belongs to Harijan
community he should be the President of RPI, Jeur. However, as the
work of Dnyaneshwar Kamable was well and good therefore his post
of President of RPI contnued for further period by the villagers.
Complainant alleged that before two years of 14.06.2010 there was
quarrel in between Dnyaneshwar and accused no. 2 on said count,
and some cases were also fled against each other. On 14.06.2010 at
about 11.00 am when he was at his shop, at that time, one boy
namely Tavshe @ Tausif Sadik Ali Shaikh came to him and told that,
his younger brother Dnyaneshwar and nephew Santosh were
assaulted by accused no. 2 Ganesh and his brothers namely Vijay-
accused no. 1, Rajendra- accused no. 2 and Sanjay- absconding
accused. He further told that above named persons assaulted
Dnyaneshwar by knife and gupti near veterinary hospital and
Bajartal maidan. Having heard this, complainant rushed towards
the place of incident. As per narration in the complaint accused
Ganesh and his brothers seeing complainant fed away from the
spot of incident. It is alleged that the accused no. 2- Ganesh was
having gupti in his hand and accused no. 3- Rajendra was having
knife in his hand. He saw that Dnyaneshwar and his nephew
Santosh were lying in pool of blood. He brought tumtum (vehicle)
and carried them to the hospital of Dr. Surana.
Bhagyawant Punde
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5. The complainant further alleged that while going to the
hospital of Dr. Surana, he inquired with Dnyaneshwar about the
incident. Upon inquiry Dnyaneshwar told that when he and Tausif
Shaikh were coming from their house, he felt pierce in his back. At
that time, accused no. 2-Ganesh came in front of him and assaulted
him by gupti on chest and throat. Accused No. 3- Rajendra stabbed
him by knife from backside. Accused No. 1- Vijay and absconding
accused Sanjay were holding his hands. He further stated that
Santosh was going by the side of the road. He saw the incident and
rushed towards Dnyaneshwar. As such, the accused assaulted him
on his abdomen. While assaulting the accused were uttering that by
killing Dnyneshwar he (Ganesh) would become the President of RPI.
Accused No. 2- Ganesh was asking his brother to kill both of them.
He further stated that when he reached to the hospital of Dr.
Surana, the doctor told him to carry Dnyaneshwar to a big hospital.
As such, he and his relatives carried Dnyaneshwar and Santosh to
Akluj for treatment. However, Dnyaneshwar succumbed to the
injuries en-route. Santosh had sustained seven injuries. He was
admitted in Ashwini hospital at Akluj in unconscious condition.
Thereafter, he came to Jeur, from there he went to Karmala and
fled complaint against the accused nos. 1 to 3 and absconding
accused Sanjay as referred above.
Bhagyawant Punde
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6. Police Station Offcer, Karmala on the basis of complaint
fled by complainant Sunil Kambale registered Crime bearing No.
176/2010 for the offence punishable under Section 302, 307 read
with 34 of IPC. After registration of crime, the law was set in motion
and the investigation of the crime was handed over to Rajendra
Padwal, API, Karmala (PW-12). He in turn, visited the spot of
incident on 14.06.2010 and prepared the spot panchnama at 5.00
pm. Mr. Chous, PSI (PW13) prepared inquest panchnama upon the
dead body of Dnyaneshwar Kambale in presence of two panchas at
Karmala and referred his dead body to Cottage hospital, Karmala
for post mortem. On 15.06.2010, Mr. Rajendra Padwal (PW12) seized
the clothes of deceased Dnyaneshwar under seizure panchnama
vide Exh. 44. On 17.06.2010, he arrested the accused nos. 1 and 3
under arrest panchnama vide Exh. 50. On 23.06.2010. He arrested
accused no. 2- Ganesh under arrest panchnama vide Exh. 51. On
25.06.2010 accused no. 2-Ganesh gave a disclosure statement to
him in presence of two panchas and shown his readiness to produce
gupti which was concealed by him at village Kurduwadi. As such,
Mr. Rajendra Padwal (PW12) recorded his memorandum statement
and thereafter accused no. 2-Ganesh carried panchas and Rajendra
Padwal (PW12) to Kurduwadi in market from where the accused no.
2 discovered one gupti and a shirt which was worn by him at the
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relevant date and time. Mr. Rajendra Padwal (PW12) seized those
two articles in presence of panchas. On 25.06.2010 accused no. 2-
Ganesh was referred to Medical offcer, Cottage hospital, Karmala as
he was having injury upon his wrist.
Injured Santosh was admitted in Ashwini hospital at
Akluj. Mr. Rajendra Padwal (PW12) directed PSI S.A. Chaus to
record his statement, as such on 18.06.2010, PSI Chaus, visited
hospital at Akluj where Santosh was admitted. He recorded
statement of Santosh on 18.06.2010 and handed over the same to
the Rajendra Padwal (PW12). The investigating offcer recorded
statements of several witnesses. On 06.07.2010 he seized the clothes
of injured Santosh under seizure panchnama vide Exh. 48 in
presence of two panchas. On 06.07.2010, Rajendra Padwal (PW12)
issued letter to Medical Offcer, Civil Hospital, Karmala and asked
his opinion whether the injuries caused to Dnyaneshwar Kambale
and Santosh Kambale are possible by gupti. On the same day, he
issued letter to Medical Offcer, Cottage Hospital, Karmala and
asked to submit post mortem report of Dnyaneshwar Kambale.
During investigation he collected the medical certifcates of Santosh
Kambale from Ashwinin Hospital, Akluj vide Exh. 70. He also
collected the medical case papers of Santosh vide Exh. 71 which
consists his discharge card and other relevant documents. On
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25.07.2010, Rajendra Padwal (PW12) referred muddemal articles to
chemical analyzer, Pune for its analysis. During investigation he
received the C.A. report. After completion of investigation, the
investigating offcer submitted the chargesheet in the Court of JMFC
at Karmala.
7. As already stated, on completion of the investigation, the
police has fled the charge-sheet. As the alleged charge of murder is
triable by the Court of Sessions, the learned Judicial Magistrate,
First Class, committed the case to the Court of Sessions, Solapur.
Thereafter the learned Additional Sessions Judge, Solapur, framed
charge against the accused for the offences punishable under
Sections 302 and 307 of the Indian Penal Code. The charge was
read over and explained to the accused. The accused pleaded not
guilty and claimed to be tried. The defence of the accused was of
total denial and false implication.
8. After considering the material and evidence on record,
the trial Court recorded its fndings that the prosecution has
established its case against the Accused No.2 Ganesh Garad for the
offence punishable under Sections 302 and 307 of the Indian Penal
Code and failed to prove its case against Accused No.1 Vijay Garad
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and Accused No.3 Rajendra Garad by the judgment and order dated
04.03.2013. The learned Additional Sessions Judge, Solapur by the
judgment and order dated 04.03.2013 convicted the Accused No.2
Ganesh Gulab Gard for the offence punishable under Sections 302
and 307 of the Indian Penal Code and sentenced him to suffer
imprisonment for life and fve years respectively and fne. Both the
sentences imposed upon Accused No.2 were directed to be run
concurrently.
9. Heard the learned counsel for the parties. With their able
assistance we have perused the Memo of appeals, notes of evidence
and material placed on record.
10. Mr. Khamkar, the learned counsel appearing for the
Appellant - original accused No.2 Ganesh has submitted that, the
reasons given by the trial Court in convicting the Accused No.2 are
totally contrary to the evidence on record. He submitted that the
prosecution has failed to prove the motive on the part of the
accused for commission of the alleged offence, and if the
prosecution failed to prove the motive for commission of offence, the
conviction of accused No.2 cannot be sustained. It is submitted that
the trial Court did not consider and appreciate the oral as well as
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documentary evidence in proper perspective. It is also submitted
that the prosecution has failed to prove the motive and intention on
the part of the Accused No.2 in committing the murder of deceased
Dnyaneshwar. It is also submitted that since the accused Nos.1 and
3 have been acquitted holding that only because they are real
brothers of Accused No.2, they were implicated in the present case,
on the same basis the accused No.2 ought to have been acquitted as
accused No.2 has been falsely implicated in the present case in
order to take a revenge due to political rivalry as also due to
pending criminal cases. It is further submitted that PW-6 Sunil was
not an eye witness to the alleged incident and at that time he was in
his shop, and one Toushik Shaikh came to his shop on the day of
incident and informed the incident to him. It is submitted that the
learned Additional Sessions erred in not considering that the
deceased Dnyaneshwar is said to have told PW-6 Sunil, while being
carried to the hospital of Dr. Surana in a tumtum that when the
deceased and Toushik were coming from house to Veterinary
Hospital, that the Accused No.2 assaulted him by gupti upon his
chest and the Accused No.2 stabbed him from back side by knife
whereas Accused No.1 and absconding Accused Sanjay were holding
his hands, and therefore, it is clear that evidence of PW-6 Sunil is
not a direct evidence but it is hearsay evidence and no reliance
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could be placed on the said evidence in order to hold that the
Accused No.2 is guilty of alleged offence. He, therefore, submitted
that the learned Judge erred in holding that the evidence of PW-6
Sunil is direct evidence. It is submitted that the evidence of PW-7
Santosh, being the nephew of deceased Dnyaneshwar, is an
interested witness, and therefore, no reliance can be placed on said
evidence.
It is submitted that though the incident has been
occurred in the busy locality i.e. in the bazaar area in front of
Veterinary Hospital, surprisingly no independent witness was
examined in support of the prosecution case. It is further
submitted that there are inconsistencies in the oral as well as
medical evidence. It is the contention of the learned counsel
appearing for the Accused No.2 -Appellant that since the learned
Sessions Judge has rejected the prosecution case so far as it relates
to the accused Nos.1 and 3, on the same set of evidence, it was
incumbent upon the learned Sessions Judge to reject the
prosecution case so far as it relates to Accused No.2. The learned
Judge has not properly considered the material omissions in the
evidence of PW-6 and PW-7. There was considerable delay of 4
hours in lodging the FIR and therefore it creates serious doubt
about the truthfulness case of prosecution. It is submitted that the
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learned Sessions Judge has not properly considered the admissions
given by PW-8 Dr. Khot in her cross examination which shows that
the post mortem report is doubtful. The learned counsel for the
Appellant - Accused No.2, therefore, submitted that the fndings
recorded by the trial Court are perverse and contrary to record,
therefore original accused no. 2 deserves to be acquitted.
It is further submitted that so far Chemical Analyzer's
report is concerned, the same is inconclusive in so far as Gupti and
Earth are concerned, and the blood group of accused No.2 cannot
be determined and inconclusive, so also the blood group of deceased
is not determined. In support of his aforesaid submissions, the
learned counsel appearing for the Appellant - Accused No.2 has
sought to place the reliance on the following judgments :-
1] (2021) 1 SCC (Cri) 788, Waikhom Yaima Singh v/s. State of
Manipur
2] 1980 (Supp) SCC 434, Padman Mehere Anr v/. State of
Orissa.
3] 1997 CriLJ 1788, Narayan Kanu Datavale ors v. State of
Maharashtra
4] AIR 2003 SC 507, Joseph v/s State of Kerala.
5] AIR 2001 SC 1380; Sohan Anr v/s. State of Haryana;
6] AIR 1971 SC 1586, The State of UP Anr v. Jaggo @ Jagdish
ors
7] 1996 Cri.LJ 3147; Ashraf Hussain Shah v. State of
Maharashtra
8] AIR 1988 SC 1158 Awadhesh anr. v/s. State of Madhya
Pradesh.
9] (2003) 9 SCC 420, Khima Vikamshi ors. v. State of Gujarat
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10] 2003 Cr.LJ 2302, Salim Akhtar @ Mota v. State of UP
11] Manu/MH/2775/2015, Malhari Gopal Bhoval ors. v/s. State
of Maharashtra.
12] 2018 ALL MR (Cri) 174, Nana s/o. Shriram Wankhade v/s.
State of Maharashtra.
He lastly submitted that the Appeal fled by the
Appellant - Accused No.2 may be allowed and appeal fled by the
State may be dismissed.
11. On the other hand, the learned APP appearing for the
State submitted that, in the present case there is direct and
trustworthy evidence regarding commission of offence brought on
record by the prosecution. It is submitted that the learned
Additional Sessions Judge has erred in acquitting the accused Nos.1
and 3 though there was direct evidence of PW-6 and PW-7 that the
accused Nos.1 and 3 were also present on the spot and were holding
the hands of Dnyaneshwar. He further submitted that on the one
hand the learned Additional Sessions Judge convicted Accused No.2
and on the other hand acquitted the Accused Nos.1 and 3 which
according to the learned APP, shows mis-carriage of justice. The
prosecution has proved the intention and motive on the part of all
the accused in commission of offence by adducing cogent and
reliable evidence on record. The learned Additional Sessions Judge
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has not applied his mind in appreciating the oral as well as
documentary evidence on record in acquitting the accused Nos.1
and 3. It is submitted that there is direct and corroborative
evidence in the nature of medical evidence brought on record by the
prosecution to prove its case against all the accused. He, therefore,
submitted that the Appeal fled by the State against acquittal of
Accused Nos. 1 and 3 may be allowed and, the Appeal fled
Appellant-Accused No.2 against conviction may be dismissed.
12. We have perused the entire evidence on record including
the charge framed by the trial court, deposition of witnesses,
medical report and other evidence brought on record by the
prosecution.
13. Now coming to the evidence of prosecution, PW-1
Dattatray Talekar is the panch witness on inquest panchanama.
PW-2 Tanaji Nimgire is also a panch witness on seizure
panchanama of clothes of deceased Dnyaneshwar. PW-3 Vinod
Shinde is a panch witness on spot panchnama of incident. PW-4
Jaywant Dadasaheb Nade is also panch witness on seizure
panchanama of clothes of injured Santosh Kambale.
Bhagyawant Punde
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14. PW-5 Gorakh Babu Durgule is the panch witness of
arrest panchanama of accused. He stated that On 25.06.2010 he
was called by police. One Balasaheb Rangnath More was another
panch with him. Accused Ganesh gave disclosure statement before
them that he is ready to produce one gupti and shirt from
Kurduwadi in a bush near market yard. Disclosure panchanama
was prepared and he signed it. The accused showed the said spot
from which one gupti and shirt was recovered from the bush. He
stated that he saw the gupti and shirt. The gupti was having blood
stains, it was having sharp edge on both sides. The shirt was also
having blood stain. On the spot the police seized those articles and
prepared seizure panchanama. He signed the seizure panchanama.
In his cross examination, he stated that the injury upon the wrist of
Ganesh was of one and half inch in length and it was abrasion. The
police had carried Ganesh to hospital before panchanama.
In his cross he admitted that in the memorandum
panchanama it is not mentioned that there was blood stains upon
the gupti.
15. The prosecution has examined PW-6 Sunil Ramchandra
Kambale, who is the brother of deceased Dnyaneshwar. He stated
that deceased Dnyaneshwar was President of RPI till last i.e. up to
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his death. Due to the dispute of 'President-ship' the accused were
annoyed since his brother Dnyaneshwar had occupying the said
post. He stated that the accused beat his brother Dnyaneshwar,
nephew Santosh, Datta and his son Nagesh on 19-10-2008, due to
which Dnyaneshwar had fled complaint against the accused
bearing RCC No.49/2009 and the said case is pending. The said
case is against the accused persons and absconding accused
Sanjay. He stated that the incident took place on 14-6-2010 at 11.00
am. At the time of incident he was in his shop. At that time one
Muslim boy Taushik Sadique Shaikh came to his shop and informed
that the accused Nos.1 to 3 and Sanjay Garad assaulted his brother
Dnyaneshwar and nephew Santosh in bazar area in front of
Veterinary hospital. He went to Veterinary Hospital with his
nephew Datta and Rafque. On seeing PW-6 the accused Nos.1 to 3
and Sanjay started running, he saw that Ganesh was having gupti
in his hand and Rajendra was having knife in his hand, and
Dnyaneshwar and his nephew Santosh have fallen in the pool of
blood. The witness called one tumtum, and carried Dnyaneshwar
and Santosh to the hospital of Dr. Surana. He further stated that
on the way to the hospital he asked his brother Dnyaneshwar, what
happened? upon which he told him that, when he and Tausha were
coming from his house to veterinary hospital at that time he felt
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pierce in his backside. Dnyaneshwar further told that Ganesh
Garad assaulted him by gupti upon his throat and chest and
accused Rajendra stabbed him from backside by knife, and Sanjay
Garad and Vijay Garad caught hold of his hands. He further told
the PW6 that, Ganesh Garad was saying that, he i.e. Dnyaneshwar
was not allowing him to become President of RPI, and he would
become the President of RPI by killing him. He also told PW6 that,
at the relevant time Santosh was passing from the way and he
rushed towards the spot. Dnyaneshwar told PW-6 that Ganesh gave
stab injury by gupti in the abdomen of Santosh and upon shoulder,
and Ganesh Garad was telling to his brothers to kill them. At that
time, witness reached in the hospital of Dr. Surana. Dr. surana told
him to carry Dnyaneshwar and Santosh to Akluj. He carried
Santosh and Dnyaneshwar to Akluj in a private jeep. In the hospital
doctor declared Dnyaneshwar as dead and Santosh was admitted in
Ashwini Hospital. He was unconscious. Thereafter PW-6 carried the
dead body of Dnyaneshwar to Jeur. At Jeur near Primary Health
Center police jeep was standing and the police asked him to carry
the dead body of Dnyaneshwar to Karmala, and as such he carried
the dead body to Karmala. Thereafter PW-6 fled complaint in Police
Station Karmala.
Bhagyawant Punde
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In the cross examination PW-6 stated that he was not
the eye witness of the incident of 19-10-2008. This witness PW-6
denied the suggestion of defence that after discussing with Narayan
Patil he fled complaint in police station on the next day.
16. The next witness is Santosh Dilip Kambale (PW-7), who
is injured. He stated that the incident took place on 14/06/2010 at
10-30 to 11-00 am in front of veterinary hospital at Jeur. At that
time he was in the hotel of Ghotane and was drinking water. At that
time he heard noise as "Melo Melo", and as such he rushed towards
the place from where he heard the noise. He reached in front of
veterinary hospital and saw that Vijay Garad and Sanjay Garad
caught hold the hands of Dnyaneshwar Kambale. Rajendra Garad
was holding knife, he was behind Dnyaneshwar Kambale, the knife
was having blood. Ganeh Garad was having gupti in his hand and
he was in front of his uncle Dnyaneshwar Kambale. Ganesh Garad
assaulted his uncle by gupti on his abdomen, chest, throat.
Rajendra Garad assaulted by knife from backside. Ganesh Garad
and his brother were saying that by killing his uncle they would
become the President of RPI. PW-7 intervened the quarrel. Ganesh
Garad assaulted PW-7 by gupti upon his abdomen and left
shoulder. PW-7 and Dnyaneshwar Kambale fell on the ground in
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pool of blood. At that time Sunil Kambale and Shrikant Kambale
came on the spot. The accused gathered on the spot ran away along
with weapons. His uncle Sunil (PW-6) and Shrikant brought one
tumtum there and carried his uncle Dnyaneshwar Kambale to
hospital. PW-7 stated that Dnyaneshwar Kambale told to Sunil
Kambale (PW6) that when he and Tausif Shaikh came in front of
Veterinary hospital he felt pierce in his back. Dnyaneshwar told that
Vijay and Sanjay caught hold his hands. Rajendra Garad was at the
back side of Dnyaneshwar Kambale by holding knife. It is stated by
PW-7 that Dnyaneshwar Kambale further told to his uncle Sunil
that Ganesh assaulted him by gupti upon his abdomen, chest and
throat. At that time they reached to the hospital of Dr. Surana. Dr.
Surana told them that they have sustained severe injuries and to go
to hospital at Akluj. Sunil Kambale brought one jeep and carried
them to the hospital of Dr. Inamdar at Akluj. PW-7 stated that he
was admitted in that hospital, and his uncle Dnyaneshwar Kambale
succumbed to the injuries on the way. PW7 stated that he was
admitted in the hospital of Dr. Inamdar for 10 to 12 days. Due to
injury in his abdomen, he was unable to speak. On 6-7-2010 he
had gone to police station, Karmala and produced his blood stained
clothes to police.
Bhagyawant Punde
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In his cross the PW-7 stated that he is unable to state
whether any other persons heard the noise 'Melo-Melo'. He stated
that the time of incident he was wearing banian. He stated that Dr.
Surana did not treat him in his hospital. PW-7 admitted in his
cross examination that he did not say anything about the incident
to Doctor at Akluj. This witness denied the suggestion of defence
that he was conscious on 14-6-2010 to 17-06-2010. PW-7 stated
that in the morning he was unconscious. PW-7 denied the
suggestion that on 18-6-2010 his uncle had brought one written
statement and he signed on it.
17. The prosecution has examined Dr. Saroj Khot (PW8), the
Medical Offcer at Cottage Hospital, Karmala. She deposed that she
conducted post mortem upon the dead body of Dnyaneshwar
Kambale and found the following external injuries :-
1] c/w 1 cm x 1 cm on chin.
2] c/w 2 cm x 1 cm to ½ inch on left clavicle.
3] c/w size ½ by ½ by ¼ inch on left supra mammary region
4] c/w size 2 x 1 x ½ inch on left supra mammary region.
5] c/w 1 x 1 x ½ inch on epigastric region.
6] c/w 1 x 1 inch up to intra abdomen on left below 12 th rib at
backside of chest.
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She stated that all these injuries are ante mortem. She
further deposed that on internal examination, she found that the
blood in the abdominal cavity rupture of peritoneal at back side,
rupture of upper part of the spleen size 2 x 2 x ½ inch blood in ++
in spleen. She opined the cause of death is due to shock and
hemorrhage and due to stab injury to spleen organ. She stated that
IO had asked her opinion whether the injury nos.1 to 6 of column
no.17 are possible by gupti vide letter dated 6-7-2010, she replied
the same and informed to PI that the injuries are possible by gupti.
The Doctor stated that if both the hands of a person is caught hold
and assault is made by sharp weapon there is possibility of injury
having cavity deep. She stated that if there is loss of one third part
of the blood from the body, the patients suffers neurogenic shock, +
+ means there is loss of 70 to 80 % blood from body. She stated that
in case of 80% blood loss from the body there is possibility of
instant and sudden death. By fsts and kick blow spleen can be
ruptured.
18. The prosecution has also examined Dr. Anant Manikrao
Kulkarni (PW-9). He stated that he was attached to Ashwini
Hospital at Akluj. He stated that on 14-6-2010 he was on duty, one
patient namely Santosh Dilip Kambale was admitted in their
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hospital at 1-00 pm with history of stab injury. He examined the
patient. He found that the patient was having stab injury to
abdomen (the left upper abdomen below rib cage measuring about 3
cm x 2 cm x peritoneal deep); stab injury on left shoulder,
measuring about 2 cm x 1 cm x muscle deep. There is suggest mild
abnormal peritoneal. He stated that the surgery done for the same,
injuries found during surgery are stomach anterior and posterior
wall perforation at great curvature 2 cm x 1 cm, tear in transverse
colon measuring 2 cm x 1 cm diameter, top perforation on anterior
wall of jejunum, 1 cm x 1 cm. Haemopantorum of about 500 ml.
He stated that all these injuries are possible by any sharp weapon
and the age of the injuries within 24 hours and the nature of injury
was grievous. He stated that the patient Santosh was admitted in
his hospital since 14-6-2010 to 26-6-2010 and he was operated
upon his abdomen injuries.
In his cross examination he stated that in between
14-6-2010 to 18-6-2010 no one came to record statement of
Santosh. He admitted in his cross examination that in Exhibit 73
there is no endorsement that due to pains patient is not in a
position to give statement.
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19. Another Doctor of Ashwini Hospital, Akluj has been
examined by the prosecution viz. Dr. Mukund Shriniwas Jamdar as
PW-10. He stated that on 14-6-2010 he examined Santosh Kambale
in Ashwini Hospital Akluj and stated that the Santosh Kambale had
sustained stab injury upon abdomen. He operated him on 14-6-
2010 and found that he was having peritoneum deep at left side
hypo gastric area 2 x 1 cm, stomach both anterior and posterior
wall stomach peritoneum 2 x 1 m; tear in transverse mezo colon 2 x
1 cm; two perforation on ant wall of jejunum 1 x 1 cm; Hemo
peritornium of 500 ml. He stated that all the above injuries are
grievous in nature.
In his cross examination, PW10 stated that he has not
mentioned the age and shape of the injuries.
20. The next prosecution witness is PW-11 Dr. Suhas
Sampat Jadhavar, to whom the PI Karmala referred accused Ganesh
Garad for treatment and for medical certifcate. In his deposition
PW-11 stated that on 25-6-2010 Ganesh Gulab Garad was referred
to him for treatment. He examined Ganesh Garad on 25-6-2010. He
stated that Ganesh Garad told him that he had sustained injury by
knife. PW-11 found that Ganesh Garad had sustained injuries upon
dorsalrally near the wrist joint at forearm of the left hand. The age
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of the injury was more than 74 hours. The injury was healed. It's
nature was simple in nature. PW-11 issued medical certifcate
(Exhibit-80).
21. The prosecution has also examined API Rajendra Narhar
Padwal as PW-12. He stated that the investigation of Crime
No.176/2010 was handed over to him. He received the FIR and
verifed it. He directed PSI Chouse to conduct inquest panchanama,
and referred the dead body of Dnyaneshwar Kambale for post
mortem. Thereafter he visited the spot, from the spot he seized
simple soil and the soil mixed with blood in presence of panchas, he
prepared panchanama. Thereafter, he recorded statement of
witnesses. On 15-6-2010 PW-12 collected seizure panchanama of
the clothes of Dnyaneshwar Kambale vide Exh.44. On 17-6-2010 he
arrested accused Rajendra and Vijay. He directed PSI Chouse to
record statement of Santosh on 18-6-2010 at Akluj. PSI Chouse
handed over the statement of Santosh Kamable to PW-12 on
19-6-2010. In his deposition, PW-12 stated that on 15-6-2010 he
received report from Akluj Police Station that Santosh Kambale is
unconscious. On 23-6-2010 he arrested accused Ganesh Garad
vide arrest panchanama Exhibit 51. PW-12 stated that accused
Ganesh Garad was having injury upon his left writ, therefore, he
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was referred to medical treatment. PW-11 API Rajendra Padwal
further stated that on 25-6-2010 the accused Ganesh gave
disclosure statement in presence of two panchas that he is ready to
produce gupti and shirt which is concealed by him in Market yard,
Kurduwadi in bushes near a tree. PW-12 recorded his disclosure
statement (Exhibit 52). Thereafter, accused carried him and
panchas to market yard Kurduwadi and produced one gupti and
shirt. PW-12 stated that the gupti and shirt were having blood
stains. PW-12 seized the gupti and shirt in presence of two panchas
under Panchanama (Exh.53). On 6-7-2010 Santosh Kambale
produced pant, it was having blood stains. PW-12 seized the same
in presence of panchas. PW-12 stated that on 12-9-2010 he
submitted the charge sheet against the accused.
In his cross examination, PW-12 stated that nothing was
seized from accused Rajendra and Vijay during their PCR.
22. The last witness examined by the prosecution is API
Salim Ahmed Chouse (PW-13). He stated that on 14-6-2010 he was
attached to Karmala Police Station and posted at Jeur as PSI, and
on that day he received information that two persons were stabbed
and carried to Akluj. As such he informed to his superiors about it.
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He further stated that his superiors asked him to carry the dead
body of Dnyaneshwar to Cottage Hospital at Karmala. Thereafter,
his superior asked him to reduce into writing the complaint of the
complainant. He carried the complainant to Karmala Police Station
and obtained his complaint and registered crime at 15-00 hours
bearing Crime No.176/2010 for the offence punishable under
Sections 302, 307 r/w Section 34 of the IPC. Thereafter, PW-13
handed over the investigation of the crime to PI Padwal (PW-12).
In his cross examination, he stated that he has recorded
statement of Santosh Kambale. He denied the suggestion of defence
that he carried the dead body of Dnyaneshwar to Primary Health
Center and that till 14-6-2010 and 15-6-2010 no-one were knowing
who was the assailant. PW-13 also denied the suggestion of defence
that on 15-6-2010 he prepared false complaint on the say of
Narayan Patil and false panchanamas.
23. We have perused the fndings recorded by the Trial
Court. The Trial Court in the impugned judgment observed that
there is ample evidence on record which indicates that the death of
Dnyaneshwar is homicidal death. After considering the submissions
of the learned counsel for the parties and after scrutinizing the
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evidence of the prosecution witnesses including the medical
evidence placed on record, and after going through the recitals of
the complaint, panchanamas, the nature of injuries and the cause
of death of Dnyaneshwar Kambale mentioned in the post mortem
report, CA reports and other material on record, the Trial Court has
come to a conclusion that the prosecution has established its case
against the accused No.2 Ganesh Gard for the offence punishable
under Sections 302 and 307 of the Indian Penal Code, and failed to
prove its case against the accused Nos.1 and 3.
24. The prosecution case is mainly based upon evidence of
PW-6 Sunil Kambale, who is the brother of deceased, and PW-7
Santosh Kambale, who is injured eye witness and nephew of
deceased. As stated herein above PW-6 Sunil has deposed that
Dnyaneshwar was president of RPI of village Jeur, and the accused
No.2 Ganesh was insisting to become president of RPI of village
Jeur. He also deposed that earlier on 19/10/2008 the accused had
assaulted Dnyaneshwar and as such complaint was fled against
accused bearing RCC No.49/2009. The defence has tried to bring
on record that so far as assault of 19/10/2008 is concerned, the
accused Ganesh had also fled complaint against Dnyaneshwar for
assaulting him. From the evidence on record, it is clear that there
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was dispute in between accused No.2 Ganesh and deceased
Dnyaneshwar upon the post of President of RPI of village Jeur, and
therefore, some counter cases were pending between them.
Considering the evidence and material placed on record, it is clear
that there was a long standing dispute between accused No.2
Ganesh and deceased Dnyaneshwar upon village politics which
gave rise to deadly assault upon the deceased Dnyaneshwar by the
accused Ganesh on 14/06/2010.
25. In so far as deposition of PW-7 Santosh, who is injured
witness, is concerned, he stated that when he reached the spot of
incident, he saw that accused No1. Vijay and absconding accused
Sanjay were caught hold the hands of Dnyaneshwar, accused No.3
Rajendra was holding knife in his hand. PW-7 further stated that
accused Rajendra was behind Dnyaneshwar and knife was having
blood. He deposed that accused No.2 Ganesh was having gupti in
his hand and he stabbed his uncle Dnyaneshwar by gupti on his
abdomen, chest and throat, and accused Rajendra Garad stabbed
by knife from back side. This witness also stated that Ganesh was
shouting that by killing Dnynaeshar (deceased) he would become
the president of RPI. When this witness (PW-7) intervened the
quarrel, at that time Ganesh stabbed him by gupti upon his
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abdomen and left shoulder. Considering the evidence of these two
witnesses PW-6 an PW-7 it reveals that PW-6 reached the spot of
incident after the assault and PW-7 Santosh was the victim of the
assault and was present at the time of incident. Hence, there is
direct and trustworthy evidence of PW-7 Santosh as to commission
of an offence. PW-7 Santosh is the injured witness in the incident,
who sustained injuries on his abdomen and left shoulder by gupti
at the hands of accused Ganesh, and therefore his presence on the
spot has been established by the prosecution. The evidence of PW-7
is cogent and reliable evidence and therefore, his evidence cannot be
easily brushed aside. His solitary evidence can form basis for
conviction.
26. As stated herein above, Dr. Saroj Khot (PW-8) conducted
the post mortem of the dead body of Dnyaneshwar. Upon external
examination she found 6 injuries which are ante mortem, and on
internal examination she found blood in abdominal cavity, rupture
of peritoneal at back side rupture of upper part of the spleen.
According to the Medical offcer, the cause of death is due to shock
and hemorrhage and due to stab injury to spleen organ. Dr. Anant
Kulkarni (PW-9), on examination of injured Santosh Kambale (PW-
7), found two stabbed injuries on the abdomen and left shoulder of
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Santosh. Surgery was also done for the said injuries. The doctor
PW-9 stated that the said injuries are grievous. If the deposition of
PW7 is read carefully in the light of evidence of PW8 and medical
papers, it can safely be gathered that evidence of PW7 about the
actual happening of incident gets corroboration from the medical
evidence. PW7 in his evidence has categorically stated about the
assault by the accused Ganesh to Dnyaneshwar (deceased) and also
about inficting serious injuries to him (PW7). There is complete
corroboration to his version from the medical evidence.
27. It seems that the blood group of Dnyaneshwar was of 'B'
group and the shirt of accused No.2 recovered at his behest was
found with blood of B group as mentioned in CA report. It is also
mentioned in the CA report that the gupti was found with human
blood. In his statement recorded under Section 313, when a specifc
question was put to him on CA report, the accused No.2 Ganesh did
not give any explanation about the blood appearing upon the
articles recovered from him.
28. In so far as accused No.1 Vijay and accused No.3 are
concerned, though both the witnesses i.e. PW-6 nd PW-7 have
deposed that accused No.1 and 3 were present on the spot, and
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accused No.1 was holding the hands of deceased and accused No.3
Rajendra stabbed the deceased from back side. However, there is no
recovery from the accused no. 1 and 3. Both the witnesses have
tried to implicate the accused No.1 and 3 in the alleged offence as
they are brothers of accused No.2, however, there is no clinching
and cogent evidence for reaching to the defnite conclusion of guilty
of accused no. 1 and 3. Even there is no recovery from accused
Nos.1 and 3 as it has come in the evidence of PW-12 Rajendra
Padwal that nothing was seized from accused Rajendra and Vijay
during their PCR. It appears that except the aforesaid evidence
collected by the prosecution, there is no other material evidence
brought on record by the prosecution to connect the accused Nos.1
and 3 to the crime.
29. The evidence led by the prosecution clearly shows the
involvement of the accused No.2 Ganesh Garad in the crime. Apart
from the evidence of eye witnesses there is medical evidence and
also the gupti and clothes were recovered at the instance of the
accused No.2 Ganesh.
As already discussed PW-12 Rajendra Padwal stated
that, an accused Ganesh Garad was having injury upon his left
wrist, therefore, he was referred to medical treatment. This version
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is also corroborated by PW-11 Dr. Suhash Jadhavar stating that he
found that, Ganesh Garad had sustained injuries upon dorsalrally
near the wrist joint at forearm of the left hand. The age of the injury
was more than 74 hours. The injury was healed. It's was simple in
nature. The accused No.2 gave him history of the injury that, same
is due to knife. PW-11 issued medical certifcate (Exhibit-80). The
explanation given by accused No.2 Ganesh regarding the injury
sustained by him that this injury was caused while he was working
in feld, appears to be concocted and not satisfactory.
30. In the light of discussion in foregoing paragraphs, the
conclusion drown by the trial court that the prosecution proved its
case against the accused No.2 and has failed to prove its case
against the accused Nos.1 and 3 is in consonance with the evidence
brought on record. Admittedly, the deceased Dnyaneshwar narrated
the story to PW-6 Sunil while deceased was carrying to hospital and
thereafter Dnyaneshwar was declared dead in the hospital on the
same day. The alleged motive about the dispute over the post of
President of RPI of village Jeur in the between the deceased and
Accused No.2 on the relevant time of incident is concerned, the
prosecution has brought suffcient and satisfactory evidence on
record in the form of PW-6 Sunil and PW-7 Santosh. Since there is
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direct evidence of injured witness PW7, it may not be necessary to
appreciate evidence in relation to motive in commission of offence.
31. Hence, the prosecution has proved its case by leading
suffcient evidence against the accused No.2 Ganesh. The evidence
on record is not suffcient to hold accused Nos.1 and 3 guiilty for the
offences alleged against them.
32. The authoritative pronouncements relied upon by the
learned counsel appearing for the Appellant/accused No.2 Ganesh
have no application in the facts and circumstances of the present
case.
33. We have noticed that the Trial Court has meticulously
dealt with the entire evidence of the prosecution and reached to a
correct conclusion. The law is well settled that the view taken by
the Trial Court thereby acquitting the accused cannot be lightly
interfered into, unless the Appellate Court on re-appreciation of
evidence comes to a conclusion that the fndings recorded by the
Trial Court are perverse and the view taken was not plausible at all.
34 . Upon careful perusal of the fndings recorded by the trial
court, we are of the considered view that the Trial Court upon
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appreciation of the evidence on record has taken a plausible view
and correctly recorded the fndings of conviction of accused no. 2
and acquittal of Respondent No. 1 and 2. In that view of the matter,
no case is made out for interference in the impugned judgment and
order. Both the Appeals i.e. Criminal Appeal No.478 of 2013 fled by
Accused No.2 against his conviction, and Criminal Appeal No.839 of
2013 fled by the State against the acquittal of Accused Nos.1 and 3
are devoid of any merit and the same are required to be dismissed.
Hence the following order :-
ORDER
a) Criminal Appeal No.478 of 2013 fled by Accused No.2
against his conviction stands dismissed.
b) Criminal Appeal No.839 of 2013 fled by the State
against the acquittal of Accused Nos.1 and 3 also
stands dismissed.
c) Bail bonds of the Accused, if any, stand cancelled.
( S. P. TAVADE, J.) (S. S. SHINDE, J.)
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