Bombay High Court
Sunil Jogiram Chandaliya And Others vs The State Of Maharashtra on 26 September, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:23093-DB
Cri.Appeal No.75/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.75 OF 2020 WITH
CRIMINAL APPLICATION NO.1754 OF 2024
1. Sunil s/o Jogiram Chandaliya,
Age 31 years, Occ. Agri.,
R/o Salampurenagar,
Pandharpur, Aurangabad
2. Mukesh s/o Jogiram Chandaliya,
Age 31 years, Occ. Agri.,
R/o as above.
3. Naresh @ Sonu Jogiram Chandaliya,
Age 36 years, Occ. Agri.
R/o as above.
4. Santosh s/o Popat Jadhav,
Age 27 years, Occ. Agri.
R/o as above. ... APPELLANTS
(Orig. Accused Nos.1 to 3 & 10)
VERSUS
The State of Maharashtra
through Gangapur Police Station
(Copy to be served on A.P.P.,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. S.S. Thombre, Advocate for appellants
Mr. G.A. Kulkarni, A.P.P. for respondent - State
.......
WITH
CRIMINAL APPEAL NO.67 OF 2020
1. Sunil s/o Jogiram Bidlan
Age 39 years, Occ. Labour.,
R/o Krushnagar, Ranjangaon,
Tal.Gangapur, Dist. Aurangabad
Cri.Appeal No.75/2020
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2. Pradip s/o Jagdish Bidlan,
Age 24 years, Occ. Labour,
R/o Krushnagar, Ranjangaon,
Tal.Gangapur, Dist. Aurangabad ... APPELLANTS
(Orig. Accused Nos.5 & 4)
VERSUS
The State of Maharashtra
(Copy to be served on A.P.P.,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. M.V. Salunke, Advocate for appellants
Mr. G.A. Kulkarni, A.P.P. for respondent - State
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 20th August, 2024.
Date of pronouncing judgment : 26th September, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
The challenge in both these appeals is to a
judgment and order of conviction and consequential sentence
passed by the Court of Additional Sessions Judge (Trial Court),
Vaijapur on 9/12/2019 in Sessions Case, No.47/2016. Both
these appeals are, therefore, being decided by this common
judgment.
2. 11 persons were put on trial in the said Sessions
Case. 5 of them namely original accused Nos.6, 7, 8, 9 and 11
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have been acquitted in toto. The State has not preferred
appeal against their acquittal. The order of conviction and
consequential sentence recorded against the appellants herein
is given below in a tabular form :
Convictions under Punishment imposed
Sections
143 IPC R.I. for 6 months and to pay fine of Rs.1000/- each, in
default R.I. for 1 month.
147 IPC R.I. for 1 year and to pay fine of Rs.1000/- each, in
default R.I. for 3 months.
148 IPC R.I. for 2 years and to pay fine of Rs.1000/- each, in
default R.I. for 3 months.
302 r/w 149 IPC Imprisonment for life and to pay fine of Rs.1000/- each,
in default R.I. for 1 year
307 r/w 149 IPC R.I. for 7 years and to pay fine of Rs.1000/- each, in
default, R.I. for 6 months.
324 r/w 149 IPC R.I. for 2 years and to pay fine of Rs.1000/- each, in
default R.I. for 3 months
452 r/w 149 IPC R.I. for 2 years and to pay fine of Rs.1000/- each, in
default, R.I. for 3 months.
3. The facts giving rise to these appeals are as
follows :
Appellants Sunil Chandaliya and Naresh
Chandaliya are the real brothers. Sonam (P.W.3) and Aarti
(P.W.8) are the real sisters. Atish (P.W.2) and Ganesh
(deceased) were the real brothers of Sonam (P.W.3) and Aarti
(P.W.8). Sunita (P.W.1) is the mother of these 4 siblings. Aarti
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married appellant Naresh while Sonam (P.W.3) married
appellant Sunil Chandaliya on one and the same day in the
year 2009. After about a year's joint stay at matrimonial home,
both the couples started residing separately from their in-laws
and themselves as well. Appellant Sunil Chandaliya allegedly
started harassing Sonam (P.W.3) so as to coerce her to bring
Rs.60,000/- from her mother for purchase of a motorbike. His
demand was not met. He continued to ill-treat her. She,
therefore, left him and started residing at the house of her
mother Sunita and brothers Atish and Ganesh. It appears, all
was not well between the couple Naresh and Aarti as well.
Aarti too started residing separately from her husband and
joined the company of her brothers and mother. The evidence
in that regard is, however, hazy. Since according to Sunita
(P.W.1) Aarti was residing along with her husband appellant
Naresh until the preceding of the incident. Aarti has also
admitted in her cross-examination to have had visited her
husband in jail. Be that as it may.
4. It appears that, Sonam had filed a case under
Section 498-A and even a matrimonial proceeding against
appellants Sunil Chandaliya and her parents-in-law.
Admittedly, the couple (Sonam and Sunil) is blessed with a
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child- Manveer. In a Court proceeding, it was agreed that,
Manveer would remain in the custody of appellant Sunil
Chandaliya from Monday to Friday every week and on rest of
the days he would be in the custody of his mother. Learned
advocate for the appellants placed on record certified copy of
the order regarding custody of minor - Manveer.
5. It so happened that, on 1 May 2016, Atish (P.W.2)
made a call to his brother-in-law, appellant Naresh. It appears
that, heated exchange of arguments took place between the
two. He asked Naresh to treat his sister Aarti well since
already life of one of his sister, namely Sonam was disturbed
by his brother - appellant Sunil Chandaliya. It is also the case
of the prosecution that, on the following day i.e. on 2 May,
Atish (P.W.2) was severely beaten up by appellants Naresh,
Sunil and their friends. Both of his legs and one of the hands
had to be plastered. He was brought home in evening the
same day.
6. The incident in question took place by little past
12.00 noon on 3 May 2016. Sunita (P.W.1) was feeding Atish
(P.W.2). The appellants along with 10-12 unknown persons
came their house. The appellants were armed with sticks and
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iron rods. They first pulled hair of Sunita. Appellants Sunil
Chandaliya and Mukesh assaulted her with rod and stick
respectively. The neighbours were said to have rescued her.
She ran inside. All the appellants entered the house. First
they assaulted Atish (P.W.2). Sunita and Sonam got
themselves confined in kitchen room, closing the door from
inside with a view to save themselves. Ganesh and his friend
Sumit (P.W.5) went upstairs (on the terrace) to save
themselves. The appellants followed them. Aarti too followed
them. One of the appellants pushed her back. The appellants
then mercilessly thrashed Ganesh. Appellant Mukesh
assaulted on the head of Ganesh with an iron rod. Others
thrashed him. Ganesh suffered multiple injuries. After having
realized Ganesh to have passed away, all the appellants fled
away but not before taking Master Manveer with them.
7. It is also the case of the prosecution that, pelting of
stones (brickbats) took place on large scale. Number of
brickbats were found in front of the house of informant Sunita
and even on the terrace.
8. Both Ganesh and Atish were rushed to Ghati
Hospital, Aurangabad. Sunita too was examined thereat. On
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the same day by 10.00 p.m., Sunita lodged First Information
Report (F.I.R. - Exh.90) with M.I.D.C. Waluj Police Station. A
crime vide C.R. No.212/2016 was registered for the offences
punishable under Sections 120(B), 307, 452, 324, 143, 147,
148, 149, 504, 427 of the Indian Penal Code and Section 135
of the Bombay Police Act. A crime scene panchanama
(Exh.123) was drawn. The appellants were arrested one after
the other. Clothes on their person were also seized. On 8
May Ganesh passed away. Section 302 of the IPC came to be
additionally invoked. Statements of persons acquainted with
the facts and circumstances of the case were recorded.
Identity of some unknown accused was disclosed. They too
were arrested. Upon completion of the investigation, a charge
sheet was filed against the appellants and 5 others.
9. The Trial Court framed the Charge (Exh.54).
Appellant abjured the guilt. Their defence was of false
implication. According to them, appellant Sunil Chandaliya and
Pradip Bidlan had visited the informant's house for custody of
Manveer. The quarrel, therefore, ensued at the spur of the
moment. Persons gathered outside the house pelted stones.
Many of the stones hit Ganesh. He too was pelting stones on
the persons present on the road. According to learned
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Advocate for the appellants in Criminal Appeal No.75/2020, it
would at the most be an offence under Section 304, Part II of
the Indian Penal Code. He did not urge for allowing the appeal
in toto. According to him, the appellants have been behind the
bars for long. No intention could be attributed to them. The
incident took place in a spur of moment. He would further
submit that, number of witnesses have been examined. The
evidence of the witnesses examined is not consistent with
each other. The incident on the terrace has not been
witnessed by anyone. Presence of Sumit at the house was
doubtful. Even if his presence was admitted, the investigating
officer recorded his statement 20 days after the incident.
Learned Advocate relied on the following judgments of the
Apex Court.
(1) Anbazhagan Vs. State Represented by the Inspector of
Police (2023 SCC OnLine SC 857)
(2) Harbeer Singh Vs. Sheeshpal & ors.
2016 DGLS (SC) 1120
(3) N. Ramkumar Vs. State Rep. by Inspector of Police
2023 DGLS (SC) 964
10. Learned Advocate for the appellants in Criminal
Appeal No.67/2020 would submit that, these appellants had
neither any intention nor any motive to indulge in the incident.
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Their presence would at the most be assumed to have
accompanied their friends to get custody of minor Manveer.
This Court has, therefore, suspended their sentence. He
would further submit that, the evidence of none of the
prosecution witnesses is consistent with each other. In spite of
availability of independent witnesses, none has been
examined. Even 2 innocent persons (on-lookers) were hurt
due to pelting of brickbats by Ganesh. Statement of Sumit
(P.W.5), so called eye witness was recorded 20 days after the
incident. His evidence, therefore, was rendered unreliable.
Learned Advocate in this regard relied on the judgment of the
Apex Court in case of Harbeer Singh (supra). He would further
submit that, by non-examination of independent witnesses,
though available, rendered the evidence of so called interested
eye witnesses unreliable. He, therefore, urged for allowing the
appeal of these appellants with benefit of doubt. In the
alternative, he would submit that a single assault by one of the
appellants would not be sufficient to infer that he had intention
to kill the deceased. In support of his contention, he relied on
the judgment of N. Ramkumar (supra).
11. Learned A.P.P. would, on the other hand, submit
that, it was a preplanned murder. The appellants along with
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10-15 unknown persons had come together. The appellants
were armed with iron rods and sticks. Their other companions
kept themselves outside the house. They indulged in pelting of
stones. The appellants forcibly entered the house of the
informant and first assaulted her. Then they targeted Atish,
who was unable to move on account of previous day's assault
on him by some of the appellants. He would further submit
that, the appellants then turned to Ganesh (deceased).
Learned A.P.P. drew our attention to post mortem examination
report to indicate Ganesh to have suffered 30 injuries.
According to him, the same suggests the appellants to have
assaulted him mercilessly. He would further submit that, Sumit
(P.W.5) was an independent witness. His presence has been
admitted during his cross-examination and other prosecution
witnesses as well. Number of injuries on the person of the
deceased would indicate the appellants had a common object
to commit murder of Ganesh and assault his other family
members. He would submit that, it is not that a single assault
on vital part causing death did not constitute an offence of
murder. He would further submit that, in case of rioting,
examination of more than one witness is necessary. According
to him, the evidence of injured eye witness has great weight.
The appellants admit their presence and even the incident as
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well. According to him, three more independent witnesses
have been examined. The wives of appellants Sunil
Chandaliya and Naresh have no reason to falsely implicate
their respective husbands putting at stake their matrimonial
life. According to learned A.P.P., the evidence has been
recorded three years after the incident. A minor variation in the
evidence of the prosecution witnesses, therefore, bound to
occur. He would further submit that, mere delay in
examination of witnesses for few days cannot in all cases be
termed to be fatal, particularly when the delay is explained.
The learned A.P.P. took us through the evidence on record and
relying on the following authorities, ultimately urged for
dismissal of the appeals.
(1) Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P.
2006 AIR (SC) 3010
Murder- Evidence of eye-witnesses - Close relatives of
deceased - Reliance of - Evidence of a witness cannot
be discarded merely on the ground that he is either
partisan or interested or closely related to the deceased,
if otherwise found to be trustworthy and credible.
Indian Penal Code, 1860 - Sections 302, 304 Part II,
324 - Murder - Evidence - Stabbing - Sentence -
Appellant-accused was carrying a "Barisa", a dangerous
weapon - There was previous enmity. There was an
earlier incident, about half an hour earlier when the
father and brother of deceased had been attacked by
appellant and his father - Deceased was unarmed -
There was no provocation, sudden quarrel, or fight -
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There was no indication of any cause for apprehension
on the part of appellant that the deceased may attack
him - The stabbing was with great force, causing an
injury on a vital part of body, sufficient in the ordinary
course of nature to cause death - Post-mortem report -
The intention to cause death or at all events intention of
causing bodily injury which is sufficient in the ordinary
course of nature to cause death was made out - The
circumstances to bring the case under Exception (4) to
S.300 did not exist - No interference with decision of
High Court convicting the appellant, upheld.
Indian Penal Code, 1860 - Sections 302 and 324 -
Sentence- Murder - Evidence - Judgment of High court
reversing the acquittal by trial court challenged - High
Court, on appreciation of evidence convicted A-3 under
S.302 and sentenced him to undergo imprisonment for
life and a fine of Rs.1000/- - A-1 and A-3 convicted under
S. 324 IPC for causing injuries to PW-1 and PW-2 and
sentenced each of them to pay a fine of Rs.5000/- and in
default, to undergo simple imprisonment of six months -
Upheld - Appeal dismissed.
(2) Masalti : Munga Ram, Bhagwati, Chandan Sinali, Laxmi
Prasad Vs. State of Uttar Pradesh
1965 AIR (SC) 202
Evidence Act - Section 134 - Witness - Number of
witnesses - Solitary trustworthy witness is sufficient for
conviction but where large number of persons are
involved, it is usual to seek corroboration from more
witnesses.
Under the Indian Evidence Act, trustworthy evidence
given by a single witness would be enough to convict an
accused person, whereas evidence given by half a
dozen witnesses which is not trustworthy would not be
enough to sustain the conviction.
But where a criminal Court has to deal with evidence
pertaining to the commission of an offence involving a
large number of offenders and a large number of victims,
it is usual to adopt the test that the conviction could be
sustained only if it is supported by two or three or more
witnesses who give a consistent account of the incident.
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In a sense, the test may be described as mechanical; but
it is difficult to see how it can be treated as irrational or
unreasonable.
It is, no doubt, the quality of the evidence that matters
and not the number of witnesses who give such
evidence. But sometimes it is useful to adopt a test like
the one which the High Court has adopted in dealing
with the present case.
(3) Lal Bahadur & ors. Vs. State (NCT of Delhi)
2013 AIR (SCW) 2161
Indian Penal Code, 1860 - Section 302 and 299 -
Murder Trial - Requirements to prosecution - Held - In a
murder case to substantiate the case of prosecution it is
not required that dead body must have been made
available for the identification and discovery of dead
body is not sine qua non for applicability of Section 299,
I.P.C.
Murder Trial - Delay in examination of witnesses -Scope
- Held - Mere delay in examination of witnesses for few
days cannot in all cases be termed to be fatal so far as
the prosecution case is concerned when the delay is
explained.
Murder Trial - Applicability of testimony - Held - Mere
marginal variation and contradiction in the statements of
witnesses cannot be a ground to discard the eye-witness
who is none else but the widow of deceased.
12. Considered the submissions advanced. Perused
the evidence on record and the judgment impugned herein.
Let us advert to the evidence on record and appreciate the
same.
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13. The family of informant- P.W.1 Sunita was
comprised of herself, her two daughters Sonam and Aarti and
two sons Atish and Ganesh. Appellants Sunil Chandaliya and
Naresh Chandaliya are the real brothers. They married
Sonam and Aarti respectively on one and the same day in the
year 2009. The evidence on record indicates that, it was an
arranged marriage. Their financial background and
antecedents were verified before the informant gave her
daughter to them in marriage. After a year's joint stay at the
matrimonial house, both the brothers along with their
respective wives started residing separately from their parents
and themselves as well. Although it is the case of the
informant that appellant Sunil Chandaliya started asking
Sonam (P.W.3) to fetch Rs.60,000/- for purchase of a
motorbike, there is no convincing and reliable evidence in that
regard. The evidence, on the contrary, indicates that while
Sonam (P.W.3) married Sunil Chandaliya, she had passed 12 th
Standard examination. She completed graduation post
marriage. Her education expenses were incurred by appellant
Sunil Chandaliya. All was well between the couple. The
couple was blessed with a child, Manveer. There is no
concrete evidence to indicate what made the couple live
separate from each other. It appears that, after two years of
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marriage, Sonam (P.W.3) started residing at her parental
house. She even filed a case under Section 498-A against
Sunil Chandaliya and in-laws. A civil proceeding was also
instituted. According to the informant, the appellant Naresh
started harassing Aarti (P.W.8) with a view to ensure Sonam
(P.W.3) would take back the Court cases filed against Sunil
Chandaliya and other family members. As per the evidence of
the informant, Aarti too started residing away from Naresh for
about 5-6 months next before the incident. She too came to
reside at her (P.W.1 Sunita) residence. While in another
breath she testified that until the day before the incident she
was residing with her husband- appellant Naresh. It is only
after Atish (P.W.2) was assaulted by Sunil Chandaliya and
Naresh and their friends, she came to her residence to see him
and started residing there.
14. P.W.1 Sunita testified that the appellants along with
10-15 unknown persons came to her residence. The
appellants entered her house. They caught her hair and pulled
her out of the house. Appellants Sunil Chandaliya and Mukesh
assaulted her with rod and stick respectively. The family
members rescued her. She thereafter ran inside the house. It
is further in her evidence that, appellant Mukesh said that they
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will finish them today. Aarti (P.W.8), Sonam (P.W.3) and
Ganesh (deceased) also came to rescue her. It is further in
her evidence that, appellant Mukesh assaulted on the head of
Ganesh with iron rod. She, therefore, locked the gate.
Appellants Sunil Chandaliya, Mukesh and Naresh broke the
lock of the gate. She (P.W.1 Sunita) and Sonam (P.W.3) went
into the kitchen and closed the door from inside. Ganesh and
Aarti went on the terrace to save themselves. Aarti thereafter
came running down shouting Ganesh was killed. She,
therefore, opened the door and took her in the kitchen room
and closed the door. The appellants thereafter were shouting,
"गणणश और आततश मर गयण. जलदद भभगग." (Ganesh and Atish have
been killed, Let's flee away.) It is further in her evidence that,
Sunil Chandaliya and Mukesh broke the door of the kitchen
and snatched Babu (Manveer) from her custody and went
away. Thereafter police came and took Atish and Ganesh to
Ghati Hospital. Ganesh breathed his last on 8/5/2016. It is
further in her evidence that, her supplementary statement was
recorded 10-12 days after the incident, wherein she claimed to
have identified the appellants on having been shown by the
police. She identified all the appellants before the Court.
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15. She was subjected to a searching cross-
examination, wherein she admitted that after having verified
financial status of appellants Sunil Chandaliya and Naresh with
their antecedents, she gave her daughters to them in marriage.
Sonam started residing with her 2 years after her marriage.
While Aarti separated from Naresh 5 to 6 months before the
incident. She again corrected herself to state that, Aarti was
residing with her husband- appellant Naresh until the
preceding day of the incident. No F.I.R. was lodged as regards
assault on Atish on the preceding day i.e. on 2 May 2016. She
admitted that, Sonam had filed an affidavit before a Court at
Aurangabad, giving consent to keep Manveer with his father
Sunil Chandaliya from Monday to Friday. On the fateful day,
Manveer was with her (P.W.1 Sunita). She claimed to have not
remembered that it was Tuesday on 3 May 2016. She
admitted that, it was the case of Sunil Chandaliya that on that
day Manveer should have been with him. She offered
explanation with a say that since nobody came to take
Manveer and hence, on that day he was with her. She has
also admitted her both sons namely Atish (P.W.2) and Ganesh
(deceased) were arrested because of assault on appellants
Sunil Chandaliya and Naresh. Her house was situated in a
thickly populated area. Her evidence further indicates that, on
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1 May there was a call between her son Atish and appellant
Naresh. Naresh was asked not to spoil life of his sister Aarti
since already life of his another sister (Sonam) was spoiled by
his brother - appellant Sunil Chandaliya.
16. It is further in her cross-examination that, appellant
Sunil Chandaliya was asking for dissolution of marriage with a
decree of divorce. She, however, denied that therefore they
were annoyed with him. During the 2 years stay of Sonam
with her, none of them requested Sunil Chandaliya to get
Sonam back to his residence. On the previous day i.e. on 2
May, Atish was assaulted. His both legs and one of the hand
were plastered. He was, therefore, unable to feed himself. It
is further in her evidence that, on the given day, except all her
family members, none else (meaning thereby Sumit as well)
was present in her house. According to her, Ganesh was
assaulted by appellant Mukesh on their arrival in the house.
Ganesh then went upstairs. She claimed ignorance about
Ganesh to have assaulted appellants Sunil Chandaliya and
Pradip with pelting of bricks. She claimed to have not seen
any injury on the person of appellants Pradip and Sunil
Chandaliya. When Ganesh went upstairs, she (P.W.1 Sunita),
Sonam and Manveer were in the kitchen. Aarti went behind
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Ganesh. It is further in her evidence that, the appellants
assaulted Atish in his room. She went on to state that, she
was not knowing all the accused persons except her sons-in-
law namely Sunil Chandaliya and Ramesh. Her son told her
their names and, therefore, those figured in the F.I.R.
According to her, the appellants recorded statements of
Sonam, Atish and Aarti 12 days after the incident. She testified
that, Sumit and Amar had not come to her residence on the
given day. She admitted that, two of the persons gathered
outside the house sustained injuries because of pelting of
bricks. She, however, denied that, therefore, the persons
gathered outside also started pelting stones towards Ganesh
on terrace.
17. She was confronted with the F.I.R. Exh.90 and her
attention was drawn to a statement portion marked "A", which
reads, "somebody out of above (appellants) beat on her right
arm with a stick." She denied to have stated the said
statement to the police. She also could not assign any reason
as to why her F.I.R. is silent to record that Mukesh hit on the
head of Ganesh with iron rod. Her F.I.R. was also silent to
record that appellants Sunil Chandaliya and Mukesh assault
her with rod and stick respectively.
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18. P.W.2 Atish testified that, on the preceding day of
the incident, he was assaulted by the appellants at his work
place. He was rushed to Ghati Hospital. His both the legs and
one of the hands were bandaged and plastered as well. He
came home the same day. The F.I.R. of the said incident was,
however, not lodged.
It is further in his evidence that, on the following
day i.e. on 3 May, he was present in the front room. The
appellants came in front of his house and started abusing. His
mother (P.W.1 Sunita) went to see who were there. Appellant
Sunil Chandaliya came and pulled his mother's hair. Appellant
Sunil Chandaliya and Mukesh started beating his mother with
wooden stick. While appellants Naresh, Sunil Chandaliya,
Mukesh came to his room and started beating him with stick
and rods. He became unconscious for a while. When he
regained consciousness, he heard appellants Sunil Chandaliya
and Mukesh saying, "Ganesh and Atish both were dead, Let's
leave". It is further in his evidence that, thereafter Ganesh and
he were taken to Ghati Hospital.
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19. During his cross-examination, he admitted that,
Ganesh and he were arrested for offence of assault on
appellant Sunil Chandaliya. It was an offence under Section
326 of the Indian Penal Code. Due to injuries suffered on the
previous day, he was unable to stand up on his own. He
sustained bleeding injury. He did not remember what he talked
with Sunil Chandaliya about Manveer. He was very much
conscious when taken to the hospital and until his discharge
on 8 May. His statement was recorded on 12 May 2016 i.e. 9
days after the incident. According to him, no stranger was
present in the house except their family members. He meant
to say, Sumit (P.W.5) too was not present in the house. Since
he was unable to move, he could not know about other
happenings in the house.
20. P.W.3 Sonam testified that, by 12.00 noon on the
fateful day, she was present in the house. her mother was
feeding Atish. The appellants came to their house. Appellant
Sunil Bidlan, her husband Sunil Chandaliya and Mukesh took
her mother from the room by catching her hair. Both Sunil and
Mukesh Chandaliyas beat her mother with stick. Mukesh
said, "We will kill both the brothers" (Atish and Ganesh). Then
Sunil Chandaliya, Mukesh, Sunil Bidlan and Pradip went to the
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room of Atish. They beat up Atish with iron rod and stick. It is
further in her evidence that, her husband Sunil Chandaliya said
not to spare his wife. She ran into the kitchen and bolted the
door from inside. Her mother too joined her in the kitchen.
She saw others (acquitted) standing outside the house. They
were armed with iron rods and sticks. According to her,
Ganesh was on the terrace. Those who were present outside
including Santosh Jadhav (appellants in Criminal Appeal
No.75/2020) were pelting stones towards her brother on the
terrace. They asked the neighbours not to intervene as it was
their personal matter. Then Sunil Chandaliya, Mukesh,
Naresh, Pradip, Sunil Bidlan and Santosh broke open the
channel gate and went on the terrace. They beat up Ganesh
and his friend Sumit on the terrace. Aarti (P.W.8) was also
there on the terrace. Sumit came down. He had also suffered
various injuries. Then the appellants came downstairs. Sunil
Chandaliya, Mukesh and Sunil Bidlan broke open the kitchen
door. Sunil Chandaliya and Mukesh snatched away her son
Manveer and went away. While leaving, they said, "आततश और
गणणश मर गयण". Ganesh then came downstairs. He was severely
injured. Both Atish and Ganesh were taken to Ghati Hospital.
:: 23 ::
21. She was subjected to a searching cross-
examination. We propose to restrict her cross-examination in
relation to the incident since the facts about her marriage her
post marriage education etc. has been referred to above.
According to her, Sumit (P.W.5) had come to their residence
prior to the incident. In the second breath, she testified that,
no other person had come to their house the entire day. She
knew Rani Chandaliya. According to her, a hue and cry took
place. So many neighbours had gathered on hearing hue and
cry. Two of them suffered injuries because of pelting of stones.
A commotion, therefore, took place. Because of the
commotion, she could not see who beat whom at that place.
She denied that, stones were also pelted from the terrace.
Since she was on the ground floor, she did not know what had
happened on the terrace. She saw persons from the mob
throwing bricks towards terrace. Ganesh had not sustained
injury prior to commotion. She saw Ganesh injured after
throwing of bricks towards the terrace from outside. She did
not go on to the terrace. She did not meet police from 3 May
to 8 May. According to her, she did not see Sunil and Pradip
had suffered injuries. She was, therefore, confronted with her
police statement and particularly the matter - portion marked
"A", which reads :-
:: 24 ::
"तण घणऊन जभत असतभतनभ मद पतहलण तणवहभ मभझण पतद
ससनदल चतडभललयभ व पददप बदडलभन यभतनभ मभर लभगगन
रभख तनघत हगतण."
She denied to have stated to the police accordingly.
She denied that, appellant Sunil Chandaliya and
Pradip had come to their house for taking Manveer and,
therefore, they beat them up.
22. It is in the evidence of P.W.8 Aarti that, the
appellants came to the house of her mother. They firstly beat
up Atish. Ganesh, therefore, ran towards terrace. All of them
followed him. She too followed them. Appellants Sunil and
Mukesh Chandaliyas pushed her. Because of the same, she
came down from the terrace. When she was on terrace, she
saw appellants Sunil Chandaliya, Mukesh and Naresh beat up
Ganesh with an iron rod. Then they shouted, "भभगग, गणणश मर
गयभ." Mukesh and Sunil Chandaliya broke the door of kitchen
and took Manveer and then went away.
23. During her cross-examination, she admitted that,
appellants Naresh and Sunil Chandaliya had filed complaint
:: 25 ::
against her brothers Ganesh and Atish about having been
assaulted by them. She was staying with her mother for about
4 months before the incident. Thereafter she was going to join
her husband. Except the family members, none else was
present in the house. She gave a vital admission that
appellants Sunil Chandaliya and Pradip had come to their
house on the fateful day for getting custody of Manveer. Even
after the incident, she had been to jail to meet her husband.
According to her, hurling abuses had taken place in between
her mother on one hand and appellants Sunil Chandaliya and
Pradip on the other. Ganesh had not suffered before going on
the terrace. She did not know why Sumit had come to their
residence on that day. Sumit was present on the terrace. She
learnt that, persons from outside of their house were throwing
stones and bricks on the terrace. She, however, did not see
Ganesh and Sumit throwing the bricks back on the persons
present on the road. She denied to have informed the police
that Ganesh hit Sunil Chandaliya and Pradip by throwing
bricks. Her attention was, therefore, drawn to a matter -
portion marked in her police statement, which reads thus
"त्यातील एक वीट सुनील चंडाललया व एक वीट प्रददिप
दबलडान याला लागली."
:: 26 ::
She denied to have stated the same. Accordingly,
Sumit (P.W.5) brought Ganesh downstairs. It is further in her
evidence that, after funeral, when all of them came back to
their house, they had discussed about the F.I.R. to be lodged
and what is to be told to the police. Rest of the questions in
the nature of denial of her examination-in-chief.
24. These 4 witnesses are the family members,
namely, mother and her 3 children. We have evidence of 3
more witnesses. P.W.4 Kishor was serving with a sugarcane
juice centre. He claimed to have had close friendship with
Ganesh (deceased). According to him, Rani Chandaliya told
him that appellant Mukesh, Sunil Chandaliya and Naresh along
with their friends had planned to beat up Ganesh. They have
made preparation in that regard and even assembled to
proceed towards the house of Ganesh. She had asked him to
report the same to Ganesh. It is further in his evidence that,
he, therefore, went to the house of Ganesh and reported the
same. He claimed to have seen the appellants to have
assembled and proceeding towards the house of Ganesh.
25. During his cross-examination, it has come on
record that, Ganesh was his very close friend. The appellants
:: 27 ::
were on motorcycle. His Master, owner of sugarcane juice
centre did have a cell phone. He was at the house of Ganesh
until 12.00 noon. When he left the house, he did not see the
appellant nearby the house of Ganesh. It is only after 5 days
of death of Ganesh, he told family members of Ganesh that he
had told Ganesh what Rani had asked him tell Ganesh been
told by him Rani Chandaliya. His statement was recorded on
16 May at Police Station. He did not on his own went to the
Police Station or reported or phoned what he had learnt from
Rani Chandaliya.
26. Then there is evidence of P.W.7 Wajid Pinjari. It is
in his evidence that, on 3 May by 12.00 noon he saw 10-12
persons present in front of the house of Pradip Bidlan. Sunil
Chandaliya was also present thereto. He was armed with iron
rod while Pradip was holding wooden bamboo. Others were
also armed with sticks and rod. They started proceeding
towards the house of Atish. He followed them. P.W.1 Sunita
was present outside of the house. Sunil Chandaliya caught
hold of her hair and beat her up. At that time, Ganesh was on
the terrace. Sunil broke the lock of the channel gate. Other 4
persons went on terrace. Father of Pradip Bidlan was standing
:: 28 ::
on the terrace of front building and throwing bricks towards
Ganesh (A new theory has been brought on record).
27. During his cross-examination, he admitted to have
been a good friend of Atish. Although he followed the
appellants and others, he did not intervene to save Atish and
his family members. He even did not make a call to Police
Station when those persons armed with sticks and iron rods
started proceeding towards the house of Ganesh. He was
present while police came on the spot. He was, however,
scared of Sunil. He did not report to the police about the
incident for the next 15 days.
28. P.W.5 Sumit testified that, Ganesh had come to his
house on the morning of 3 May 2016. He joined Ganesh to his
house.
29. Kishor (P.W.4) had come to the house and
informed Ganesh that 10-12 persons have gathered and there
was possibility of quarrel. By 12.15 noon, he saw persons
gathered outside the house and were abusing. One of them
attempted to inflict blow on his head. He resisted the same
with his hand. The blow fell on his hand. He thereby suffered
:: 29 ::
injury. The appellant beat up Atish. Thereafter he and Ganesh
ran towards the terrace. Stone pelting started from the terrace
of opposite side building (Ganga Tank). All the appellants
came on the terrace. They were armed with iron rod and
sticks. Mukesh assaulted on the head of Ganesh with iron rod.
Ganesh fell down. Others then beat up Ganesh with the
articles in their hands. The appellants threatened him if he
intervened. Aarti had come onto the terrace, but those
persons pushed her down. The appellants then went away
after beating Ganesh. He brought Ganesh down. Both
Ganesh and Atish were taken to Ghati Hospital, Aurangabad.
He too was there as his presence at Ghati Hospital is deposed
to by P.W.2 Atish.
30. During his cross-examination, he testified that, from
the place where he was, nothing could be seen what was
happening with Atish in his room. Atish was taken to the
hospital in the condition in which he was seen by him in the
morning. This suggests that Atish did not receive any visible
injury. According to him, Sunil Chandaliya and Pradip did not
suffer any injury as a result of bricks thrown by Ganesh. He
had not stated so to the police in his statement to the police.
He was, therefore, confronted with his police statement and
:: 30 ::
particularly the matter- portion marked "A", which speaks about
the same. According to him, one Amar was also with him on
the terrace. There was commotion on the road in front of the
house. About 25 persons from the lane had gathered.
Persons from the road also threw bricks and stones on terrace
towards Ganesh in resistance. Ganesh also suffered injuries
because of stones and bricks pelting on the road. Amar ran
away by jumping down from the terrace. He admitted that,
Sunil talked with Sonam and her mother and thereafter scuffle
started. He went on to admit that as a result thereof quarrel
took place. He admitted that, so many bricks and stones were
lying on the terrace. Same was the state in front of the house
of Ganesh. He was at his own residence up to 22 May post
incident. He did not approach police to lodge the report and
give his statement until then in spite of having been in good
mental frame.
31. P.W.6 Sagar is the witness to the panchanamas
(Exhs.123 to 128-A). Panchanama Exh.123 is crime scene
panchanama. Panchanamas Exh.124 and 125 pertain to
seizure of clothes. Exh.126 pertains to arrest of appellants
Pradip Bidlan and seizure of his clothes. Exh.127 is inquest
panchanama. Exh.128 is a disclosure statement by appellant
:: 31 ::
Sunil Chandaliya, pursuant to which an iron rod was seized
from open place under a tamarind tree.
32. This witness, in his cross-examination, testified the
contents of disclosure statement were already kept written by
the police when he visited the Police Station on the given date.
The evidence of this witness is therefore of little consequence
for the prosecution. The crime scene panchanama (Exh.123),
however, indicates that, that there were blood stains on the
floor of the front room. Door of the kitchen was broken.
Brickbats were seen lying in front of the house, but not beyond
the channel gate. Pieces of bricks and stones were also seen
on the terrace.
33. P.W.10 Vitthal did the investigation of the crime.
His evidence indicates that, appellant Pradip Bidlan was
injured in the incident. The omissions amounting to
contradictions in the statements of Aarti (P.W.8), Sumit (P.W.5)
and other prosecution witnesses have been duly proved
through his oral evidence. According to him, both appellants
Sunil and Pradip had sustained injuries in the incident. The
information received at the control room was that the injured
sustained injuries in quarrel. Same was the case about the
:: 32 ::
information given in the hospital. He recorded the statements
of the witnesses post 15 May in spite of having been aware,
they being the eye witnesses.
34. P.W.9 Dr. Sachin was the Medical Officer at Ghati
Hospital, Aurangabad. He conducted the autopsy on the
mortal remains of Ganesh on 9 May 2016. He noticed
following injuries :-
(1) Obliquely placed, linear sutured wound of length 5.5 cm with
6 sutures in situ present over right frontal region. On opening
the sutures, wound margins was irregular, ragged, partly
healed at periphery, bone deep, suggestive of laceration.
2) Five intermingled tramline contusions of sizes ranging from 3
cm x 1.5 cm to 9 cm x 2.5 cm. Present over lateral aspect of
upper 1/3 of right arm (including deltiod region) dark brown.
3) Vertically placed, abraded tramline contusion of size 8 cm x
1.5 cm present over lateral aspect of middle 1/3 of right arm,
brownish scab.
4) Two obliquely placed, abraded contusions of size 2.5 cm x 1.5
cm each, present over antero-lateral aspect of lower 1/3 of
right arm, just above right cubital region, blackish brown
scab.
5) Three intermingled tramline abraded contusions of sizes
ranging from 4 cm x 1 cm to 13 cm x 1.5 cm present over
postero-lateral aspect of right elbow, brownish scab.
:: 33 ::
6) Contusion of size 4.5 cm x 4 cm present over middle 1/3 of
dorsal aspect of right forearm greenish brown.
7) Tramline contusion of size 5 cm x 2 cm present over dorsal
aspect of right wrist.
8) Contusion of size 2 cm x 1 cm present over dorsal aspect of
proximal phalynx of right ring finger with fracture of
underlying 1st plalynx, dark brown.
9) Contusions of sizes ranging from 1 cm x 1 cm to 2.5 cm x 1
cm present over knuckles of right hand, dark brown.
10) Partly healed, adherent, laceration of size 1 cm x 0.1 cm
present over dorsal aspect of distal phalynx of right ring
finger.
11) Contused abrasion of size 7.5 cm x 3.5 cm present over
middle 1/3 of anterior aspect of right forearm, brownish.
12) Abrasion of size 5 cm x 3 cm, 2.5 cm present on left side of
back, supra-scapular region, blackish brown scab.
13) Contused abrasion of size 6 cm x 4 cm present on over left
lumber region of back, 6.5 cm from midline, brownish scab.
14) Horizontally placed tramline abraded contusion of size 4 cm x
1.5 cm present over right iliac region of abdomen, brownish
scab.
15) Vertically placed tramline contusion of size 7 cm x 1.5 cm
present over deltoid region of left arm, dark brown.
16) Obliquely placed tramline contusion of size 4 cm x 1.5 cm
present over right lower (iliac) region of abdomen, dark
brown.
17) Two obliquely placed tramline contusions of sizes 5 cm x 1.5
cm (proximal) and 3 cm x 1.5 cm (distal) present over lower
1/3 of dorsal aspect of left forearm, dark brown.
:: 34 ::
18) Obliquely placed tramline contusion of size 10 cm x 1.5 cm
present over dorsal aspect of left hand, greenish brown.
19) Abrasion of size 1 cm x 0.8 cm present on dorsal aspect of left
wrist, brownish scab.
20) Abraded contusion of size 5 cm x 1 cm present on antero-
medial aspect of left knee, brownish scab with greenish brown
contusion.
21) Abraded contusion of size 2.5 cm x 1 cm present on upper 1/3
of anterior aspect of left leg, brownish scab with greenish
brown contusion.
22) Multiple obliquely placed tramline contusions of sizes ranging
from 5 cm x 1.5 to 7 cm x 1.5 cm present over posterior
aspect of left thigh and leg, brown.
23) abrasion of size 2.5 cm x 1 cm present on medial aspect of left
foot, blackish brown scab.
24) Contusion of size 3 cm x 2.5 cm present on left medial
malleolar region, greenish brown.
25) Multiple contusions of sizes ranging from 3 cm x 2 cm to 6
cm x 4 cm present on left sole dark brown.
26) Multiple obliquely placed tramline contusions of sizes ranging
from 5 cm x 1.5 to 7 cm x 1.5 cm present over dorsal aspect
of right thigh and leg, greenish brown.
27) Obliquely placed, linear sutured wound of length 5 cm with 4
sutures in situ present over lateral aspect of lower ½ of right
leg. On opening the sutures, the margins are irregular, ragged,
partly healed, adherent x muscle deep, suggestive of
laceration.
28) Multiple contusions of sizes ranging from 2 cm x 2 cm to 3
cm x 3.5 cm present on right sole, dark brown.
:: 35 ::
29) Multiple abrasions of sizes ranging from 0.2 cm x 0.5 cm x 1
cm over anterior aspect of knee joint and upper ½ of right leg,
blackish brown scab.
30) Pinpoint puncture mark of i.v. line present over right supra-
clavicular region with an adjacent stay suture, reddish.
31) Pinpoint puncture mark of i.v. line present over left side of
neck with an adjacent stay suture, reddish.
35. According to him, the last two injuries were caused
during treatment. Rest of the injuries were ante mortem. On
internal examination of head, he noticed two injuries in the
nature of under-scalp contusion. The injuries noticed on the
person of Ganesh were sufficient to cause death in the
ordinary course of nature. The post mortem examination
report (Exh.143) records the cause of death as head injury with
multiple contusions.
36. Then we have injury certificates of Sumit (P.W.5).
The same indicates him to have suffered contused lacerated
wound on left forearm. It was simple in nature. The same was
proved by the evidence of P.W.11 Dr. Saba. It is at Exh.152.
37. Then the injury certificate Exh.153 is of Atish
(P.W.2). The injury certificate has been admitted by the
:: 36 ::
appellants. Atish is shown to have suffered contusion on the
right side back and abrasion on right elbow dorsal. Both the
injuries were simple in nature. While P.W.1 Sunita's injury
certificate (Exh.154) indicates contusion on right arm, which is
simple in nature.
APPRECIATION :
38. P.W.1 to P.W.4 are the blood relations. The
evidence of P.W.5 Sumit regarding assault on deceased
Ganesh in his presence is concerned, is to be tested with a
pinch of salt. During suggestions given to some of the
prosecution witnesses and himself and defence appears to
have admitted his presence while other prosecution witnesses
i.e. family members rule out presence of any third person
during the entire day. As such, it is a case of admission
against implied admission through suggestions. P.W.5 Sumit
claimed to have suffered injury at first instance no sooner the
appellants entered the house. While the evidence of P.W.1
Sunita indicates that he was not at all present in the house or
at least in the front room. The injury suffered by him is simple
in nature. Even we take his presence to have been proved, his
conduct is very unnatural. He was a good friend of Ganesh.
He was present in Ghati Hospital while both the injured were
:: 37 ::
rushed there. He did not disclose to the police anything about
the incident until his statement was recorded 20 days after the
incident. True, the learned A.P.P. has relied on the case of Lal
Bahadur (supra) wherein it has been observed that, delayed
recording of statement is not fatal if the delay is duly explained.
In this case, neither the investigating officer nor P.W.5 Sumit
offered any explanation as to why there was delay of not less
than 20 days in recording or giving the statement. According
to him, Ganesh received head injury on the terrace. While
according to P.W.1 Sunita, Mukesh assaulted Ganesh no
sooner he entered the house. True, there being number of
witnesses and assailants were also more than 5 in number,
and the evidence to have been recorded three years after the
incident, some inconsistency here and there is bound to occur.
We will refer to the conclusion recorded by the Trial Court as
regards offence against each individual. Let us take first case
of Atish. The Trial Court convicted the appellants for offence
punishable under Section 307 read with 149 of the Indian
Penal Code. While the injury certificate of Atish indicate him to
have suffered (1) contusion on right side of back and (2)
abrasion on right elbow dorsal aspect. The incident dated 2
May was not the subject matter of the case. It is just surprising
as to how the Trial Court found the said assault to be a bid on
:: 38 ::
the life of P.W.2 Atish. We are, therefore, not in agreement
with the findings recorded by the Trial Court regarding
convicting the appellants and consequently sentencing them
for offence punishable under Section 307 read with 149 of the
Indian Penal Code, so far as regards assault on P.W.2 Atish is
concerned. It would be an offence under Section324 read with
149 of the Indian Penal Code.
39. True, the assailants were 6 in number. Their
coming together and indulging in commission of the crime
would itself indicate they either formed unlawful assembly
before entering the house after or entering the house of P.W.1
Sunita they indulged in commission of assault. As such, the
offence of criminal trespass, punishable under Section 452 and
being members of unlawful assembly, indulged in rioting, duly
gets proved. We do not propose to interfere with the finding
recorded by the Trial Court in that regard. The injury certificate
of Sumit (P.W.5) and Sunita (P.W.1) also indicate them to have
suffered simple injuries. The conviction recorded by the Trial
Court for assault on them in prosecution of the common object
and consequently sentencing for offence punishable under
Section 324 read with 149 separately also found no cause for
interference.
:: 39 ::
40. The question is, whether the appellants committed
murder of Ganesh in prosecution of the common object of their
unlawful assembly. Before appreciating the evidence in that
regard, we need to refer to Sections 299, 300 and 304 of the
Indian Penal Code. The Sections read thus :
299. Culpable homicide.--Whoever causes death by
doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely
to cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of
culpable homicide.
300. Murder.--Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of
causing death, or--
2ndly.--If it is done with the intention of causing such
bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is
caused, or--
3rdly.--If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of nature
to cause death, or--
4thly.--If the person committing the act knows that it is
so imminently dangerous that it must, in all probability,
cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
:: 40 ::
304. Punishment for culpable homicide not amounting
to murder.--Whoever commits culpable homicide not
amounting to murder shall be punished with 1
[imprisonment for life], or imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to
cause death;
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause
death, or to cause such bodily injury as is likely to
cause death."
41. The learned A.P.P., relying on the judgment in case
of Pulicherla Nagaraju (supra), submitted that, evidence of
witnesses cannot be discarded merely on the ground that they
are either partisan or interested or closely related to the
deceased, if otherwise found to be trustworthy and credible. In
the very judgment, particularly paras 16 to 19, we find
observations regarding what constitutes offence punishable
under sections 302, 304 Part I or Part II as well. True, in para
No.17.2 it has been observed that there was no justification for
the assertion that the giving of a solitary blow on a vital part of
the body resulting the death must always necessarily reduce
the offence to culpable homicide not amounting to murder
punishable under Section 304, Part II of the Code. If a man
:: 41 ::
deliberately strikes another on the head with a heavy log of
wood or an iron rod or even a lathi so as to cause a fracture of
the skull, he must, in the absence of any circumstances
negativing the presumption, be deemed to have intended to
cause the death of the victim or such bodily injury as is
sufficient to cause death. The whole thing depends upon the
intention to cause death, and the case may be covered by
either clause Firstly or clause Thirdly.
42. In our view, in criminal cases, reliance on the
authorities would be a good guide. After all, each case has to
be decided on the facts and circumstances of each case.
43. The facts of the present case indicate the sisters
namely Sonam (P.W.3) and Aarti (P.W.8) were married
appellant Sunil Chandaliya and Naresh respectively on one
and the same day. Sunil and Sonam were blessed with a child
- Manveer. Something went wrong between the couple and
after two years, Sonam started residing away from her
husband Sunil. She took shelter at the house of her mother
and brothers. She instituted a case under Section 498-A
against her husband and in-laws. It also appears that, some
matrimonial proceedings too were instituted. So far as custody
:: 42 ::
of Master Manveer is concerned, some understanding was
arrived at between both of them. It was agreed that, Manveer
would remain in the custody of his father (appellant Sunil)
during Monday to Friday. The incident took place on Tuesday,
3 May. On the given day, the custody ought to have been with
the appellant Sunil. It appears that, a phone call between Atish
and Naresh dated 1 May triggered the incident. Atish called
Naresh and requested to ensure that matrimonial life of his
another sister, Aarti (P.W.8) would not be spoiled since marital
life of his one sister Sonam was already spoiled. It then
appeared that, on the following day, Atish was assaulted.
Since the said incident is not the matter in question before us,
nothing could be observed in that regard that the assailants
were the appellants and none else. Needless to mention that,
no F.I.R. was lodged in respect of the said incident. On the
following day i.e. on the fateful day, at about little past 12.00
noon, the appellants Sunil, Mukesh and Naresh went to the
house of the informant. It is in the evidence of Aarti and Sumit
that a quarrel took place between Sunil and P.W.1 Sunita. The
evidence of Arti indicates that, post funeral, all the family
members discussed over the matter and decided what to
report to the police. The F.I.R. is a fall-out of such discussion.
It is further in her evidence that, there was quarrel in progress
:: 43 ::
between Sunil and Pradip on one hand and her mother on the
other. She was specific to state that, appellant Sunil and
Pradip had come to their house for taking custody of Manveer
on 3 May 2016. She being a prosecution witness, was not
declared to have been won over. True, the learned A.P.P.
would say that she might have deposed so as to save her
marital life. The fact remains that the appellants had visited
the house of the informant to take the custody of Manveer as
per the understanding given in writing before the Court. It
might be that they were armed with stick or iron rod only with a
view if any resistance is put up by Ganesh (deceased) or his
brother. We have reason to infer so because, admittedly both,
the deceased namely Ganesh and Atish were arrested for
assault on appellant Sunil. An offence punishable under
section 326 read with 34 was registered against them. Had
the appellants really come with an intention to do away with
both the brothers or any of their family members, they would
have been armed with sharp weapons and no sooner they
entered the house, they would have started assaulting each
and everyone in the house indiscriminately. We have already
observed above that, Atish suffered simple injury. The same
could not constitute offence punishable under Section 307 of
the Indian Penal Code. P.W.1 Sunita appears to have been
:: 44 ::
manhandled. In her F.I.R. itself she stated that, one of the
appellants assaulted her with a stick. She improved her
version before the Court and named Sunil and Mukesh as
assailants. It is reiterated that, Sunit's (P.W.5) statement has
been recorded after 20 days without there being any plausible
or reasonable explanation as regards delay in recording of his
statement. In fact, his presence at the house was itself in
dispute. In view of great inconsistency inter-se the evidence of
the prosecution witnesses, since according to the family
members no stranger was present in the house. It also
appears that, presence of Amar was also introduced, who was
said to have fled after jumping from the terrace. The question
is, whether Aarti (P.W.8) has really witnessed the incident on
the terrace. According to her, no sooner she followed the
appellants towards terrace, she was pushed by appellants
Sunil and Mukesh. She claimed to have seen appellants Sunil,
Mukesh and Naresh (brothers) to have assaulted Ganesh with
iron rod. She did not name other appellants as assailants.
According to her, hurling of abuses was continued. The
investigating officer has admitted that, appellants Sunil and
Pradip had suffered injuries. Aarti had in her police statement,
stated to the police that they suffered injuries as a result of
Ganesh to have pelted brickbats on their person. True, it was
:: 45 ::
qualified statement. According to her, those were thrown in
self defence. The same is not in her substantive evidence.
The fact thus remains that, two of the appellants namely Sunil
and Pradip had suffered injuries in the incident. Admittedly, the
evidence on record indicates that, pelting of stones took place
for long. It is not known as to why the persons who had
gathered on the road just outside the house of the informant
pelted stones at Ganesh on the terrace. There is also
evidence to indicate that Ganesh in retaliation, pelted stones
downwards. Admittedly, two of the innocent persons gathered
outside the house, as onlookers, suffered injuries as a result of
stone pelting. It appears that, the investigating officer did not
make further investigation to find that those who were present
outside the house and indulged into pelting of stones had
come their along with the appellants.
44. When Master Manveer ought to have been in the
custody of appellant Sunil on the given day, he was admittedly
in the custody of the informant. It is reiterated that, Aarti had
testified both Sunil and Pradip had come to their house to get
custody of Manveer. Prosecution witnesses (family members)
also admit that before leaving the house, they (Sunil and
Mukesh) broke open the door of the kitchen wherein P.W.1
:: 46 ::
Sunita and her two daughters namely Sonam and Aarti had
locked themselves inside. Then both of them snatched Babu
(Manveer) and went away. The same undoubtedly indicate
that, arrival of the appellants was with a view to get custody of
appellant Sunil's minor child, Manveer. On their arrival at the
house of the informant, a quarrel took place and a major
incident happened, wherein Ganesh unfortunately lost his life.
45. Appellant Mukesh is said to have given iron rod's
blow on the head of Ganesh. The said injury proved fatal.
Other injuries noticed on the person of Ganesh indicate those
were contusion, although very many in number. P.W.5 Sumit,
however, admitted in his evidence that, Ganesh too suffered
injury due to pelting of stones on his person. The Medical
Officer, in cross-examination, admitted that, contusion may
also occur due to hit of stones. It is true that, appellants have
assaulted Ganesh on the terrace with stick or iron rods. The
incident on the terrace was only witnessed by Sumit and Aarti.
She claimed to have witnessed appellants Sunil, Mukesh and
Naresh beat up Ganesh with iron rods. While Sumit, whose
statement was recorded after 22 days, testified that all the
appellants reigned stick and iron bar blows on the person of
Ganesh. We find his evidence but shaky for more than one
:: 47 ::
reason, namely his presence at the house was doubtful. Even
if we accept his presence due to implied admission during
suggestion by the defence, his statement was recorded after
22 days, he having been on the terrace and witnessing the
assault on Ganesh, the appellants left him unhurt. He too did
not intervene to save Ganesh. Sumit's statement to have been
recorded 23 days after the alleged incident and the fact that he
had every opportunity to approach the police and report about
the incident on the very day or within a reasonable time lead
us to disbelieve his evidence. Ganesh had already been
booked for assault on Sumit and was even arrested. The
same suggests that, there must have been some altercations
between these three appellants and Ganesh. The F.I.R. is
outcome of deliberations and the witnesses are from one and
the same family and close friends, and the fact that the
appellants had come to get the custody of minor Manveer, lead
us to infer the appellants to have had no intention to kill
Ganesh at all or any of the family members. The evidence
indicates that, all the appellants had first been to the room of
Atish. Had they been there with such an intention, they would
have first assaulted him mercilessly. They even would not
have spared the female members. Although Ganesh died of
head injury associated with multiple contusions, some of the
:: 48 ::
contusions have admittedly been caused due to stone pelting.
The head injury is attributed to appellant Mukesh. In our view,
therefore, Mukesh has to be attributed with knowledge that the
said assault may result into death. Had he really been
intended to finish off Ganesh, he would have given further
blows on his head. As such, in our view, it is an offence
punishable under Section 304 Part II of the Indian Penal Code.
46. Needless to mention, an unlawful assembly could
be formed in a spur of moment. All the appellants had been to
the house of the informant. Some of them were armed with
wooden sticks and iron rods. Someone of them had assaulted
P.W.1 Sunita with a stick. It would, therefore, be an offence
punishable under Section 324 read with 149 of the Indian
Penal Code. Some of them assaulted Atish. The injury
certificate of Atish (Exh.153) indicates him to have suffered two
simple injuries that too on his back and the other one with right
elbow dorsal aspect. Conviction of the appellants for
committing offence punishable under Section 307 read with
149, therefore, needs to be set aside, replacing with conviction
for offence punishable under Section 324 read with 149 of the
Indian Penal Code. Although Sumit's presence was doubtful,
since the defence during its suggestion to the witnesses
:: 49 ::
admitted his presence, his injury certificates indicate him to
have suffered a simple injury to his left forearm. Again it being
an offence punishable under Section 324 read with 149 of the
Indian Penal Code, for all these three offences, we proposal to
sentence the appellants for rigorous imprisonment for a term of
one year with fine of Rs.1000/- each, and in default of payment
of fine, simple imprisonment for one month.
48. Already we have observed above, Aarti to have
seen only Mukesh, Naresh and Sunil Chandaliyas to have
assaulted her brother Ganesh on the terrace. We have
already held it to be an offence punishable under Section 304
Part II of the Indian Penal Code. These three appellants have
already undergone an imprisonment of little over eight years.
We propose to sentence them for the said offence with
rigorous imprisonment for eight years each and fine with
default stipulation.
49. We are inclined to maintain the conviction and
consequential sentences of the appellants for the offences
punishable under Section 143, 147 and 148 of the Indian
Penal Code.
:: 50 ::
50. The appellants stand acquitted of the offence
punishable under Section 302 read with 149 of the Indian
Penal Code. The three appellants namely Sunil Jogiram
Chandaliya, Mukesh Jogiram Chandaliya and Naresh @ Sonu
Jogiram Chandaliya, however, are convicted for the offence
punishable under Section 304 Part II read with 149 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for nine years and to pay fine of Rs.1000/-, in
default of payment of fine, rigorous imprisonment for one
month.
51. Conviction of the appellants for the offence
punishable under Section 452 read with 149 of the Indian
Penal Code is maintained, however the sentence is reduced to
rigorous imprisonment for one years and to pay fine of
Rs.1000/- each, in default of payment of fine, rigorous
imprisonment for three months.
For the aforesaid reasons, we proceed to pass the
following order :-
ORDER
(i) The Criminal Appeals are partly allowed.
:: 51 ::
(ii) Convictions and consequential sentences imposed
against the appellants for the offences punishable under
Sections 143, 147 and 148 of the Indian Penal Code and
section 452 read with 149 of the Indian Penal Code, and fine
with default stipulations, by learned Additional Sessions Judge,
Vaijapur on 9/12/2019 in Sessions Case, No.47/2016 is
maintained.
(iii) Conviction of the appellants for the offence punishable
under Section 302 read with 149 of the Indian Penal Code is
set aside. The appellants are acquitted of the offence
punishable under Section 302 read with 149 of the Indian
Penal Code. However, the three appellants namely Sunil
Jogiram Chandaliya, Mukesh Jogiram Chandaliya and Naresh
@ Sonu Jogiram Chandaliya in Criminal Appeal No.75/2020
are convicted for the offence punishable under Section 304
Part II read with 149 of the Indian Penal Code and they are
sentenced to suffer rigorous imprisonment for nine years and
to pay fine of Rs.1000/- each, in default of payment of fine,
they shall undergo rigorous imprisonment for one month.
(iv) Conviction of the appellants for the offence punishable
under Section 307 read with 149 of the Indian Penal Code is
set aside. The appellants are acquitted thereof. Instead, the
appellants are convicted for the offence punishable under
:: 52 ::
Section 324 read with 149 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for two years and to
pay fine of Rs.1000/- (Rupees one thousand) each, in default
of payment of fine, they shall undergo rigorous imprisonment
for one month.
(v) Conviction of the appellants for the offence punishable
under Section 324 read with 149 of the Indian Penal Code (for
the offence against Sunita - informant) and the sentence
imposed against them and fine with default stipulation is
maintained.
(vi) All the substantive sentences to run concurrently.
(vii) The appellants are entitled for the benefit of set-off under
Section 428 of the Cr.P.C.
(viii) In view of disposal of the Criminal Appeals, Criminal
Application No.1754/2024 stands disposed of.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
