Raju Ladku Lokhande vs The State Of Maharashtra
2023 Latest Caselaw 2117 Bom

                               SAT                                                  47-APEAL-904-2015.doc




                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                              CRIMINAL APPEAL NO. 904 OF 2015
                               1.    Kishor Baburao Chipat
                                     Age : 31 Years, R/o. Aabachapada,
                                     Devkhop, Dist. Palghar
                               2.    Sanjay Chintu Soman,
                                     Age : 30 Years, R/o. Aabachapada,
                                     Devkhop, Dist. Palghar                    ...Appellants
                                     Versus
                               The State of Maharashtra,
                               (Palghar Police Station,
                               C.R. No.I-71 of 2010)                           Respondent

                                                          WITH
                                              CRIMINAL APPEAL NO. 985 OF 2015
                               Raju Lakdu Lokhande
                               Age : 41 Years, Occu : Labour,
                               R/o. Aabacha Pada, Devkhop, Tal.Palghar,
                               Dist. Thane                                     ...Appellant
                                      Versus
                               The State of Maharashtra
                               (At the instance of Sr. P. I. Palghar
                               Police Station, Thane)                          ...Respondent

                                                          WITH
                                              CRIMINAL APPEAL NO. 452 OF 2016
                               Sanjay Chintu Soman,
                               Age : 36 Years, R/o. Abachapada,
                               Devkhop, Tal. and Dist. Palghar                 ...Appellant
                                     Versus
                               The State of Maharashtra,
                               (At the instance of Palghar Police Station
                               Vide C.R. No.I-71 of 2010)                      ...Respondent
            Digitally signed
            by SUNNY
SUNNY       ANKUSHRAO
ANKUSHRAO   THOTE
THOTE       Date: 2023.03.06   Mr. Vikas K. Singh, Appointed Advocate for Appellants.
            10:56:57 +0530

                               Mrs. M.H. Mhatre, APP for the Respondent-State.



                                                                                                  1/17
 SAT                                                   47-APEAL-904-2015.doc




                         CORAM           : A.S. GADKARI AND
                                           PRAKASH D. NAIK, JJ.

RESERVED ON : 24th NOVEMBER, 2022.

PRONOUNCED ON : 3rd MARCH, 2023.

JUDGMENT - (PER : PRAKASH D. NAIK, J.) :-

1. Appellants, Original Accused Nos.4, 5 and 6 are convicted

vide Judgment and Order dated 4th August, 2015 passed by learned

Additional Sessions Judge, Palghar in Sessions Case No.73 of 2010

for offence under Sections 302 r/w 149 of Indian Penal Code (for

short 'IPC') and sentenced to suffer imprisonment for life.

Appellants are also convicted alongwith Accused No.7 for offence

punishable under Sections 325 r/w 149 of IPC and sentence to

suffer rigours imprisonment for two years, and for an offence under

Sections 147 and 148 of IPC. However, separate punishment is not

given as they are punished for major offences. Accused Nos. 2 and

3 were acquitted from the charge under Sections 147, 148, 325,

307, 302 r/w 149 of IPC. Accused No.1 died during pendency of

case. Substantive sentences were directed to run concurrently.

2. Appellant No.2 in Criminal Appeal No.904 of 2015 has

also preferred separate appeal viz. Criminal Appeal No.452 of 2016

challenging the impugned Judgment of conviction.

3. The case of the prosecution is that the first informant

Tukaram Sukrya Baswat is the resident of Tandelpada, Devkhop,

SAT 47-APEAL-904-2015.doc

Dist. Palghar. Krishna, Balu, Raju, Vinod and Prabhakar are his

brothers. On 25th June, 2010 food grains were to be distributed at

village Satiwali. Accused No.1 Baburao Gajya Chipat was the

Sarpanch. Accused Nos. 1 to 3 demanded Rs.100/- from each

person. Some people in the village gave Rs.100/- each and the

persons residing at Gadakpada did not pay the amount. Hence, the

villagers from Tandelpada demanded the refund of the amount

paid by them. Balu and Vinod took prominent part in the protest.

There was quarrel between Accused Nos. 1 to 3 on one side and

Balu and Vinod on other side. On 26 th June, 2010 informant was

returning home after completing his work. Accused No.1 Baburao,

Accused No.4 Kishor Chipat, Accused No.6 Sanjay Soman and five

to six persons stopped the informant and told him to send his

brothers Balu and Vinod threatened that they would be killed.

Informant went to his house and told the above fact to Balu and

Vinod. Thereafter, Balu and Vinod left the house. They reached

Abachapada at about 6:30 p.m. First informant followed them.

Accused came there with sticks, chain, axe, stones and pipes. They

assaulted Balu and Vinod. The first informant and others went to

rescue them. The assailants continued to assault them. Balu and

Vinod suffered injuries. Krishna went to Police Station and brought

the Police. Balu and Vinod were sent for medical treatment. Balu

SAT 47-APEAL-904-2015.doc

was declared dead. Vinod was treated in the hospital. First

information Report (for short 'FIR') was lodged by Tukaram Baswat

vide Crime No.I-71/2010 for offences punishable under Sections

302, 307, 147, 148 and 149 of IPC against Accused Nos. 1 to 7. On

completing investigation charge-sheet was filed.

4. Charge was framed against Accused Nos. 1 to 7 under

Sections 147, 148, 149, 302 r/w 149, 307 r/w 149 and 325 r/w

149 of IPC vide Order dated 2nd August, 2011.

5. The prosecution examined fourteen witnesses. PW-1

Tukaram Baswat is the first informant. He is the brother of

deceased Balu. PW-2 Vinod Baswat is the injured eye witness. He is

also brother of deceased. PW-3 Arjun Bhalekar was the eye witness

to the incident, he was declared hostile by the prosecution. PW-4

Rajesh Ghatal, PW-5 Gaman Dalvi, PW-6 Ganesh Ghatal, and PW-7

Tanya Ramesh Parhad were eye witnesses to the incident. They

were declared hostile. PW-8 Kamubai Devnath Tandel is the sister

of deceased. She is eye witness to the incident. PW-9 Meenabai

Chandar Ghodke is another sister of deceased, she is the eye

witness to the incident. The trial Court had observed that, the

version of this witness does not inspire confidence about her

presence. PW-10 Gangaram Parhad was declared hostile by the

prosecution. PW-11 Ganesh Mhatre is the Panch witness, he was

SAT 47-APEAL-904-2015.doc

declared hostile. PW-12 Ramu Dalvi is the Panch witness. He did

not support prosecution. PW-13 Dr. Pankan Bhaskar Thakare is the

Medical Officer. He conducted autopsy. PW-14 Arjun Shankar Raut

was attached to Palghar Police Station as API. He conducted

investigation and filed charge-sheet.

6. Learned Advocate Mr. Vikas Singh appointed to represent

Appellants submitted that, the prosecution case is full of

discrepancies. The evidence of witnesses does not inspire

confidence. There is no evidence of independent witness to support

prosecution case. The prosecution has relied upon interested

witnesses. Most of the witnesses have not supported prosecution

case. The evidence of eye witnesses is doubtful. The complainant

is the brother of deceased. PW-2 is the injured witness. He is the

brother of deceased. The Panch witnesses have not supported the

prosecution case. PW-8 is the sister of deceased. The prosecution

case is based on interested witnesses. The oral evidence is not

corroborated by any other evidence. The trial Court has disbelieved

the evidence of PW-9 who is also sister of the deceased. The

evidence of witnesses suffers from omissions and contradictions.

The allegations are omnibus. No specific overtact is attributed to

Appellants. Accused Nos. 2 and 3 who are attributed role of assault

were acquitted by the trial Court. However, the same evidence was

SAT 47-APEAL-904-2015.doc

considered for convicting Appellants. The motive for assaulting the

deceased is the first incident dated 25 th June, 2010. However, no

such incident had occurred. There was no motive for Appellants to

commit crime. The wife of Accused No.4 had filed criminal case

against the deceased. Hence, the Accused were falsely implicated.

Section 302 of IPC is not applicable. There was no evidence to

substantiate the charge under Section 149 of IPC. At the most

conviction could be under Section 304 Part-II of IPC. The deceased

had criminal antecedents. PW-1 had exonerated Accused Nos. 2

and 3. However, the said has witnesses implicated other Accused.

Accused were entitled for benefit of doubt.

7. Learned Advocate for Appellants has relied upon the

following decisions :

i. Vadivelu Thevar V/s. The State of Madras, AIR 1957 SC

614.

ii. Dalip Singh and Ors. V/s. State of Punjab, AIR 1953 SC

364.

iii. Ranjendra Shantaram Todankar V/s. State of

Maharashtra and Ors., AIR 2003 SC 1110.

iv. Rama Shish Rai V/s. Jagdish Singh, AIR 2005 SC 335.

      v.   Mahendra     and   Ors.   V/s.   The   State    of     M.P.,

      MANU/SC/0199/2022.


 SAT                                                    47-APEAL-904-2015.doc

vi. Mahendra and Ors. V/s. State of M.P., AIR 2022 SC

2631.

8. Learned APP submitted that, the trial Court has examined

the evidence on record and convicted the Appellants. Merely on the

ground that, the witnesses are related to the deceased there is no

reason to discard their evidence. Minor contradiction will not affect

the prosecution case. The ocular evidence of witnesses and the

medical evidence proved the charge against the Accused. Role of

assault is attributed to the Appellants. The deceased had died on

account of the assault by Accused. The motive to commit crime is

proved. Weapons used in the crime were recovered and proved

during trial. Although some of the eye witnesses have not

supported prosecution, the other witnesses have proved that, the

Accused were instrumental in assaulting the deceased and causing

injuries to the injured witness. The FIR was registered immediately

after the incident.

9. We have scrutinized the evidence on record. The incident

in question had occurred on 26th June, 2010. Appellants were

arraigned as Accused Nos. 4, 5 and 6. Accused Nos. 2 and 3 were

given benefit of doubt on account of the evidence of PW-1

exonerating them as assailants. However, on that ground there is

SAT 47-APEAL-904-2015.doc

no reason to disbelieve the version of PW-1 who had attributed role

of assault to Appellants. PW-3 Dr. Pankaj Thakare is the Medical

Officer at Rural Hospital, Palghar. He performed autopsy on dead

body of Balu Baswat on 27th June, 2010. He noticed following

injuries on the person of Balu :-

i. Multiple CLW on face and neck approximately 3 x 2 cm. ii. CLW on nostril right side admeasuring 3 x 1 cm. iii. CLW on chin measuring approximately 6 x 2 cm. iv. CLW on forehead measuring approximately 5 x 2 cm. v. Hematoma behind right ear measuring about 3 x 3 cm. vi. CLW on left ear peena measuring approximately 3 x 2 cm.

vii. Fracture of frontal bone of skull. viii. Fracture of mandible in shaft region. ix. Fracture of nasal bone.

x. Fracture of nasal cartridges.

PW-13 has opined that, the injuries were ante-mortem.

The probable cause of death was due to cardio-respiratory failure

due to shock and haemorrhage and due to multiple injuries on face

and brain. PW-2 is the injured witness. He was examined by PW-3.

It was opined that, there were following injuries on the person of

Vinod :-

i. CLW over upper lip measuring 5 x 3 x 2 cm.

ii. Contusion over right side cheek measuring about 3 x 3 cm.

SAT 47-APEAL-904-2015.doc

iii. Fracture of upper incisors.

iv. CLW over gums of upper incisors admeasuring 4 x 3 cm.

10. One of the defense of Appellants is that, there is no

evidence of independent witnesses to prove the alleged assault. It

is pertinent to note that, the prosecution has examined several eye

witnesses. Their statements were recorded under Section 164 of

Cr.P.C. The said witnesses have resiled from their earlier statement.

The Supreme Court in the case of Appabhai Vs. State of Gujrat,

A.I.R. 1988 SC 696 has observed that, experience reminds us that

civilized people are generally insensitive when crime is committed

even in their presence. They withdraw both from the victim and

vigilante. They keep themselves away from the Court unless it is

inevitable. They think that crime like civil dispute is between two

individuals or parties and they must not involve themselves. The

kind of apathy of general public is, indeed unfortunate, but it is

every where, whether in village life, town or cities. One cannot

ignore the handicap with which investigating agency has to

discharge its duties. The Court therefore, instead of doubting the

prosecution case for want of independent witness, must consider

the broad spectrum of the prosecution version and then search for

the nugget of truth with due regard to probability, if any suggested

by Accused.

SAT 47-APEAL-904-2015.doc

11. As per evidence of PW-14, he arrested Accused No.4 and

Accused No.6. Accused No.4 showed his willingness to produce

clothes which were on his person at the time of incident.

Memorandum Panchanama Exh.108 was drawn. Accused No.4

took Police and Panchas to his house and produced one shirt and

half pant. Those clothes are Articles 7 and 8. Seizure memo

Exh.108-A was prepared. PW-14 has identified Accused No.4 in the

Court. Accused No.6 showed his willingness to produce clothes

which were on his person at the time of incident and the stick used

at the time of commission of offence. Memorandum Panchanama

Exh.109 was prepared. He took out the clothes and stick from his

house. The Articles were seized under seizure memo Exh.109-A.

Stick is Article-8 and clothes are Articles 9 and 10. The Pancha

witnesses had turned hostile as they have not supported the

prosecution. Hence, the prosecution has placed reliance on the

testimony of PW-14 Investigating Officer. He was cross examined

by the defence. However, his evidence could not be demolished.

Panchanama Exh.108-A shows that one shirt and half pant seized at

the instance of Accused No.4. Those clothes were blood stained.

Chemical analyzer's report Exh.125 shows that, most of the seized

clothes were stained with human blood. Panchanama Exh.109-A

shows that, the clothes seized at the instance of Accused No.6 were

SAT 47-APEAL-904-2015.doc

stained with blood. The stick which was seized at the instance of

Accused No.6 was stained with human blood. C.A. report shows

that, it was human blood. Blood group could not be ascertained.

Thus, there was human blood on the clothes of the Accused. The

Accused No.1 has died during the trial. Accused Nos.2 and 3 were

given benefit of doubt.

12. PW-1 Tukaram Baswat is the eye witness to the incident.

He has stated that on 25th June, 2010 grain was to be distributed at

village Satiwali. Accused Nos. 1, 2 and 3 collected money from

people for distribution of grain. Some of the villagers demanded

return of money. There was quarrel. On 26th October, 2010,

Accused Nos.1, 4, 5, 6 and 7 met him. They told him to send Balu

Sukrya Baswat and Vinod Sukrya Baswat. They also threatened

that, Balu and Vinod will be killed. He informed about the said

threats to Balu and Vinod. Balu and Vinod left home towards spot

of incident. He followed Balu and Vinod. Accused Nos.1, 4, 6, 7

and 5 assaulted Balu and Vinod. They were armed with sticks,

stones, axe, knifes, cable wire. Complainant suffered injuries.

Krishna Baswat rushed to the Police Station and brought the Police

at spot of incident. The injured was taken to hospital. Balu was

declared dead. Appellants were identified by this witness in Court.

He was cross-examined by the defence. He exonerated Accused

SAT 47-APEAL-904-2015.doc

Nos. 2 and 3 as assailants. However, role has been assigned to the

Appellants i.e. Accused Nos.4, 5 and 6. His version cannot be

disbelieved. His presence at the scene of offence cannot be

doubted. The defence had submitted that, in the cross-examination

PW-1 had stated that, the contents of FIR were not read over to

him, when it was recorded and he was not aware about its

contents. However, in the light of his version and the evidence on

record there is no reason to discard his evidence. Some omissions

were brought on record. However, it would not affect the version

of this witness that, he has seen the assailants assaulting the

deceased and injured. Merely on the ground that, he is the

interested witness, there is no reason to disbelieve him although his

evidence is required to be scrutinized cautiously. PW-2 Vinod

Baswat is the injured witness. He had suffered injuries. His

presence at the scene of offence cannot be doubted. He has stated

that, Accused Nos.1, 2, 3, 4, 5, 6 and 7 are involved in the offence.

They assaulted him and Balu with weapons. In the cross-

examination he stated that, he had stated before the Police that,

Arvind Baswat, Ajay Lade sent message through Tukaram and

Tanya to send Balu and Vinod. However, he cannot assign any

reason as to why it is not mentioned in his statement before the

Police. The trial Court has considered the submission of the defence

SAT 47-APEAL-904-2015.doc

in that regard and in Paragraph No.25 of the Judgment has

observed that, there is one omission in the evidence of PW-2 that,

Accused Nos.1 and 2 sent the message through PW-1 Tukaram and

Tanya Parhad to send Balu and Vinod. However, in the Police

Statement it is stated that on 26 th June, 2010, when he was at his

house he was called by Accused No.1. There is no mention of name

of Accused No.3, Tukaram and Tanya Parhad. But the fact remains

that, PW-2 was called by Accused No.1. We do not find any reason

to disbelieve the version of this injured witness. He has attributed

role of assault to the Appellants. Minor contradictions would not

affect the veracity of the evidence of this witness. PW-3 Arjun

Bhalekar was declared hostile by the prosecution. In the cross-

examination by APP however he stated that, he noticed Baburao

Chipat (Accused No.1) assaulting Balu. PW-4 Rajesh Khatal has not

supported the prosecution case. He was declared hostile. In the

cross-examination by learned APP he stated that in his statement it

was stated that, on 26th June, 2010 he was going through auto

rickshaw to his house at Gadakpada. Kamubai, Arjun and Ganesh

were with him. On Palghar-Manohar Road one Meenabai from

Tandelpada sat in his rickshaw. At 6:30 p.m. his rickshaw came at

Aabachapada. PW-5 Gaman Dalvi was declared hostile by the

prosecution. He stated that, the incident took place at about 6:00

SAT 47-APEAL-904-2015.doc

p.m. or 6:30 p.m. He was returning home from Palghar in the auto

rickshaw. At about 6:00 p.m. or 6:30 p.m. he reached near

Abachapada. He noticed Accused Nos.1, 4, 6 and 7 assaulting Balu

by means of sticks and stones. PW-6 Ganesh Ghatal has not

supported prosecution case. PW-7 Tanya Parhad was declared

hostile. During the cross-examination by learned APP his attention

was drawn towards portion Mark-A from his statement. He

admitted that, he has stated so before the Police. He also stated

that, stone heat his back and he sustained injury. He was referred

to hospital by Police. When he was asked by the Doctor as to how

he sustained injury, he told the Doctor that he was assaulted by

Accused No.1. He also admitted that his statement was recorded by

the Magistrate. PW-8 Kamubai Tandel is the sister of deceased.

She is the eye witness to the incident. She deposed that, on the day

of incident she was returning by auto rickshaw Ganesh Tanya and

Rajesh were with her in the auto rickshaw. Her sister Meena also

boarded auto rickshaw. She noticed Accused Nos.2, 3, 6, 4, 1 and 7

were assaulting Balu and Vinod by sticks and stones. She also

stated that, she can identify all the Accused persons. She identified

Accused Nos.2, 3 and 5. She identified the sticks and stones by

which the Accused had assaulted the injured and the deceased.

Some omissions were brought in her cross-examination by defence.

SAT 47-APEAL-904-2015.doc

However, her version about assault could not be disturbed. PW-9

Meenbai Ghodke is the sister of deceased. She is the eye witness to

the incident. However, the trial Court in the Judgment has

observed that, it cannot be said that the evidence of PW-9 is false

but it does not inspire confidence about her presence. So, her

evidence is discarded. PW-10 Gangaram Parhad has not supported

prosecution case. PW-11 Ganesh Mhatre is the Panch witness. He

stated that, clothes were seized by Police. His signature was

obtained on Panchanama. He identified signature. Police seized

one shirt and one pant in his presence. He can identify the clothes.

The Panchanama dated 30th June, 2010 bears his signature.

However, he is not aware about the contents of the same. He was

declared hostile by the prosecution. PW-12 Ramu Dalvi is also the

Panch witness. He admitted his signature on the Panchanama. He

denied the contents. He was declared hostile. PW-13 is the Medical

Officer. He conducted autopsy, he had referred to injuries suffered

by the deceased and PW-2. PW-14 is the Investigating Officer.

13. Considering the evidence of eye witnesses who had

supported the prosecution case and the other corroborated

evidence, we are of the considered opinion that minor infirmities in

the nature of omission and contradiction could not affect the

prosecution case which has been proved through the evidence of

SAT 47-APEAL-904-2015.doc

eye witnesses. We do not find any reason to disbelieve the version

of the said witnesses. The prosecution as proved that, Appellants

were assailants. There is evidence of recovery and other

incriminating evidence to support prosecution case. The

prosecution has been able to prove its case beyond doubt. The

Appellants were armed with weapons. The assault was pre-

determined. The deceased was assaulted mercilessly. He suffered

serious injuries considering the evidence of Medical Officer, nature

of injuries suffered by Balu (deceased), cause of death, it is difficult

to accept the submission of learned Advocate for Appellant that,

there was no intention to commit murder and that the offence

could be under Section 304-II of IPC. PW-2 has suffered injuries at

the instance of assailants and the trial Court has rightly convicted

the Accused under Section 325 of IPC. Appellants had assaulted

the deceased and injured in furtherance of common object. The

trial Court has analyzed the evidence in proper perspective while

giving findings of conviction. No case is made out to interfere in the

impugned Judgment.

14. Learned Counsel for the Appellants has relied upon several

decisions as stated hereinabove. It is not necessary to discuss the

ratio laid down the said decision. The decisions were based on the

facts of the respective cases. Analyzing the facts before us, we are

SAT 47-APEAL-904-2015.doc

satisfied that the trial Court has rightly convicted the Appellants.

The appeal is therefore required to be dismissed.

ORDER

i. Criminal Appeal No.904 of 2015, Criminal Appeal

No.985 of 2015 and Criminal Appeal No.452 of 2016 are

dismissed.

ii. The Judgment and Order dated 4 th August, 2015

passed by learned Additional Sessions Judge, Palghar in

Sessions Case No.73 of 2010, convicting the Appellants stand

confirmed.

[PRAKASH D. NAIK, J.]                          [A.S. GADKARI, J.]