1 Cri.AppealNo.29/2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.29/2011
1) Kailas s/o Mahadeo Jadhav
Age: 42 Yrs., occu. Agril.
2) Shahaji s/o Bhagwan Bolbhat
Age: 33 Yrs., occu. Agril.
3) Tatyaram s/o Bhimrao Jadhav
4) Harish @Hariram s/o Subbarao
Birangal
(Resp. No.4 is deleted as per
court's order dated 3.3.2011)
5) Arun s/o Bhagwan Bolbhat
Age: 42 Yrs., occu. Agril.
6) Rajesh s/o Dadahari Walke
Age:25 Yrs offu.Agril.
All r/o Sonegaon, Tq.Jamkhed,
District Ahmednagar. = APPELLANTS
VERSUS
1) The State of Maharashtra = RESPONDENT
Shri Shirish Gupte, Sr.Advocate instructed by
Smt.Sadhana S. Jadhav with Mr.Satej S.Jadhav,
Advocates for Appellants;
Mr.NR Shaikh, APP for State
WITH
CRIMINAL APPEAL NO.121 OF 2011.
1) Tatyaram s/o Bhimrao Jadhav
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2 Cri.AppealNo.29/2011
Age: 29 Yrs., occ. Agril.
r/o Sonegaon, Tq. Jamkhed,
District Ahmednagar.
2) Harish @ Hariram Subbarao
Birangal, Age: 28 Yrs.
Occupation - Agril.
r/o Sonegaon, Tq. Jamkhed,
District Ahmednagar. = APPELLANTS
VERSUS
The State of Maharashtra = RESPONDENT
ig ....
Mr.RN Dhorde with Mr.VR Dhorde, Advocates for
appellants;
Mr.NR Shaikh, APP for State.
-----
WITH
CRIMINAL APPEAL NO.27 OF 2011
Smt.Suman s/o Baban Misal
Age:36 Yrs., occu. Household
R/o Sonegaon, Tq. Jamkhed,
District Ahmednagar. = APPELLANT
VERSUS
1) The State of Maharashtra.
2) Kailash Mahadev Jadhav,
age: 38 Yrs., occu. Agril.
3) Shahaji Bhagwan Bolbhat,
Age: 30 Yrs., occu. Agril.
4) Tatyaram Bhimrao Jadhav,
Age: 27 Yrs., occu. Agril.
5) Harish @ Hariram Subbarao
Birangal, Age: 26 Yrs.
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3 Cri.AppealNo.29/2011
Occupation - Agril.
6) Arun Bhagwan Bolbhat,
Age: 39 Yrs., occu. Agril.
7) Rajesh s/o Dadahari Walake,
Age: 22 Yrs., occu. Agril.
All R/o Sonegaon, Tq.Jamkhed,
District Ahmednagar. = RESPONDENTS
(in jail)
Mr.VD Sapkal, Advocate for Appellant;
Mr.NR Shaikh, APP for State;
Shri Shirish Gupte, Sr.Advocate instructed
bySmt.Sadhana S Jadhav with Mr.Satej S.Jadhav,
Advocates for Respondent Nos.2, 3 and 6 & 7;
Mr.RN Dhorde and Mr.VR Dhorde, Advocates, for
Respondent Nos.4 & 5.
***
CORAM : A.H.JOSHI &
A.R.JOSHI,JJ.
DATE OF RESERVING JUDGMENT : 16th September, 2011.
DATE OF PRONOUNCING JUDGMENT: 18th October,2011
JUDGMENT (PER:-A.H.JOSHI,J.)
1) The Appellants were tried in Sessions
Case No.199/2008 for the offences punishable
under Sections 120-B, 148, 149, 302, 341, 201 of
IPC read with Section 149 and also under Section
3(i)(x) of Scheduled Castes, Scheduled Tribes
(Prevention of Atrocities) Act, read with Section
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4 Cri.AppealNo.29/2011
149 of IPC and Section 3(ii) r/w section 149 of
IPC by the learned Sessions Judge, Ahmednagar.
2) The trial ended in conviction of the
accused persons for all the offences, except
offence under Section 120-B of IPC and they have
been ordered to undergo life sentence.
3) Heard learned Senior Advocate Shri
Shirish Gupte with Smt.Jadhav and Shri Satej
Jadhav and learned Advoate Mr.R.N.Dhorde, for
the respective appellants/accused; learned APP
for State; and learned Advocate Mr.VD Sapkal for
Appellant in Criminal Appeal No.27/2011.
4) Facts of the case, as have been gathered
from the rival submissions, judgment etc., can be
summarized as follows :-
(i) The incident had occurred at about
6.00 p.m. on 5.7.2008.(ii) Accused persons had political and
business rivalry against one Baban Misal, the
victim.(iii) The accused pesons were in a
car. Accused persons chased Baban Misal on
village Kharda to Jamkhed road, while the::: Downloaded on – 09/06/2013 17:51:51 :::
5 Cri.AppealNo.29/2011victim was driving the motor-cycle and PW
No.1 Shri Sham Sathe was the pillion
rider. The motor-cycle did skid. The ridersfell down. The accused persons got down
from the car with weapons. The accused
persons stopped the victim and dared Babanand PW No.1 to escape if they can as the
accused had arrived to finish Baban.(iv) PW No.1 – Sathe started running
away. Some accused had caught at the shirt
of PW No.1, which was torn and a piecethereof got separated and fell down. PW No.1
then ran and concealed himself behind a tree
and witnessed the incident.(v) One amongst the accused persons
caught hold of Baban Misal by encircling him
with bicycle chain, and all accused beatBaban Misal with different weapons. The
victim fell down due to the injuries.(vi) The accused persons then created a
show of motor-cycle accident with car,
lifted and threw the dead body of Baban Misal
in the gutter near rear wheel of the car,
put a stone on body of the victim and then
left the place of occurrence.::: Downloaded on – 09/06/2013 17:51:51 :::
6 Cri.AppealNo.29/2011(vii) Relatives of the deceased arrived at
the scene of offence, after half an hour.
Police as well as local politicallyinfluential persons arrived thereafter.
(viii) The offence regarding the incident
was registered at about 1.30 a.m. on
6.7.2008.(ix) Investigation was carried out.
Weapons of assault used in the commission of
the offence were seized. Statements ofseveral persons / witnesses were recorded and
the accused were charge sheeted and tried
accordingly.5) Prosecution has examined 19 witnesses,
as under.
. PW No.1 -Shri Sham Kisan Sathe, is the
eye-witness, who has lodged the FIR
(Exhibit-61).The Panch witnesses to various
panchanamas drawn during the course ofinvestigation.
. PW No.2 -Gautam Ananda Sadafule (Exh.
65)
. PW No.3 -Rajesh Sukhdeo Wavhal (Exh.67)
. PW No.4 -Pandit Sitaram Pawar (Exh.74),
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7 Cri.AppealNo.29/2011. PW No.5 -Somnath Gorakh Jadhav (Exh.
78),
. PW No.6 -Kachru Ankush Rajguru declared
hostile.
. PW No.7 -Sambhaji Namdeo Jadhav (Exh.
83) and
. PW No.8 -Balasaheb Shela Shinde (Exh.
86)
. PW No.9 -Dr.Umesh Narayanrao Rayate is
the medical officer, who had conducted post
mortem examination of dead body of deceased– Baban Misal (Exh.90).
. PW No.10 -Shri Sudhir Dagdu Kale is
examined to prove that earlier he was the
owner of Maruti car bearing registration
No.MH-12-YA-7929, used by accused, which he
had sold to accused No.2 – Shahaji
Bolbhat(Exh.94);. PW No.15 -Shri Somnath Eknath Kathawate
is a protographer, who has undertaken the
photography of the place of offence, dead
body, car etc. involved in the offence
(Exh. 109);. PW Nos.14, 16 and 17 are the witnesses
of certain relevant facts so as to show the
previous rivalry between the parties,
disputes etc (Exhibits – 106, 110 & 111respectively).
. PW No.13 -Ansar Ismile Baig, the
police constable is examined to prove
that certain articles were sent for chemical
analysis (Exhibit 104);. PW No.18 -Sandip Rajaram Doifode is
SDPO, who took over the investigation on
5.7.2008 and carried certain investigation::: Downloaded on – 09/06/2013 17:51:52 :::
8 Cri.AppealNo.29/2011(Exh.117);
(9) PW No. 19 – Sandip Sukhanand Jadhav is
the Investigating Officer (Exh.140).6) The prosecution case mainly rests on
testimony of PW No.1 – Shri Shyam Sathe. Otherwitnesses though important in their own way, are
formal or of lesser significance.Relevant portion of testimony of PW No.1
needs to be extracted in order to segregate exactversion, which proves certain facts from other.
7) Relevant portion from testimony of PW
No.1 – Shyam Sathe, verbatim, is quoted below :-EXAMINATION-IN-CHIEF OF PW NO.1 (EXHIBIT-61)
“1). ………………………………
…………………………………..
(a) At that time Harish Subharao
Birangal had encircled Baban by chain and
was holding him;(b) Kailas Mahadeo Jadhav hit on Baban
Misal by sword below left ear and said
that there was opposition to give away
the water from tank and this Mangatya
has made the Government to give thewater, and not to let him alive;
(c) At that time, Shahaji Bahgwan
Bolbhat said that the liquor shop from
the village is closed by this Mangatya,
the boarding was closed and not to
leave alive this Mangatya and he hit by
Sattor on the left ear;::: Downloaded on – 09/06/2013 17:51:52 :::
9 Cri.AppealNo.29/2011(d) Tatyaram Bhimrao Jadhav assaulted by
sword on the right side face and headof Baban;
(e) Thereafter, Arun Bhagwan Bolbhat
assaulted by sickle on left and right
side of the head of Baban. At such time,
Baban Misal tried to rescue himself byusing force.
(f) At such time, Rajesh Dadahari Walke
by the sword in his hand assaulted on
left arm and shoulder of Baban. Oncoming to know that Baban died,they
thrown him in the ground. Thereafter allwent inside Maruti car.
(g)
They
lifted
Baban Misal byholding hands and legs and thrown him
near the
rear wheel of the Maruti car in
the gutter.(h) Kailas Jadhav lifted one stone and
thrown it on the body of deceased Baban
Misal and said that finally the Mangatyais eliminated.
(i) After some time the relatives from
our village come. We kept crying witheach other and police came. We went
to Jamkhed police station at about 10.30
to 11 p.m. I lodged the complaint.(The alphabetical marking and sub-
paragraphing is done for convenience. The
aforesaid extract is taken from page Nos.
248, 249 & 250 of Paper book)CROSS-EXAMINATION BY ADVOCATE FOR ACCUSED
NOS.1 AND 2: (EXHIBIT-61)“2)………………………………..
3)…………………………………
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10 Cri.AppealNo.29/20114)…………………………………
5)…………………………………
6)…………………………………
7)…………………………………
8)…………………………………
9)…………………………………
10) After about half an hour the
relatives from the village arrived. I
cannot say by which vehicle they came
there. 7 to 8 relatives arrived there.I had not inquired to these relatives if
any one has mobile phone. They came
by vehicle.Amongst those persons, Baban’s father
Sitaram, nephew Rahul Kamble andbrothers Anil and Balu.
I cannot give the time when police
arrived thereafter.Que.:After police arrived, how much time
you took to leave the place ofincident?
Ans.:I do not know the time when police
arrived but I left the place afterthree to 4 hours from the time of
incident.I had seen 2 to 3 police. Thereafter
Dy.SP, Ahmednagar arrived there. When Iwas there it had not so happened that
police had brought the Dog Squad. I had
stated while lodging the complaint that
police had arrived there. I cannot
assign reason as to why it is not stated
in the complaint.I had not stated to the police at the
time of lodging the complaint that after
the incident the accused sat inside the::: Downloaded on – 09/06/2013 17:51:52 :::
11 Cri.AppealNo.29/2011car and again came out of the car. I had
not stated to the police that accused ranthrough the field.
…………………………………..
…………………………………..
…………………………………..
(5) While giving the complaint I stated
to police that I was at home. I cannotassign as to why police had not written it
in the complaint.It was not happened that I received the
message and, therefore, I went. Afterreceiving the call I started immediately.
When I reached theagricultural land BabanMisal was present.
I reached about 2 p.m. Baban Misal had
taken the meal in my presence. The meal
was completed up
to 2.30 p.m.
At that
time, father and mother of Baban were
present in the home.We had not taken tea before we started.
At Kharda we had parked the motorcycleand went aside. Kacharu Rajguru is owner
of the water tank and Harishchandra
Wadile was selling the fish. My shop
of selling fish is adjacent to the shopof Wadile. Wadile is resident of Kharda
and Kacharu Rajguru is resident of
village Dighol. I am not having
relationswith them. At that time, I had
not met and spoken to them. 2 to 4 daysprior to the date of incident, I had met
Wadile for the last. I had not met both
of them for 7 to 8 days after the
incident.At Kharda, there was no tea offered
to Baban Misal by both of them. My
native place is Dhanegaon, which is at
a distance of 4 km. away from
Sonegaon. I do not know Subbabai Kale::: Downloaded on – 09/06/2013 17:51:52 :::
12 Cri.AppealNo.29/2011from Dhanegaon.
(6) It had not happened that I
reached
Jamkhed police station after
12
at midnight.
I narrated the incident in the manner
it occurred to the police while givingthe complaint. It was the first time, I
narrated the incident at Jamkhed police
station. Thereafter on 12.7.2008 I was
called by the police at Jamkhed police
station.I reached police station at about 11 a.m.
I received the message at about 10 a.m.
The message was received that I was
called for identification of theweapons of the offence.
It is true that on that day I was
shown the weapons which are shown to
me in the Court. Sattur is used forcutting fish.
(7) The spot of incident is at a
distance of 10 to 11 km away from Kharda.It is true that the spot is
on
theleft side of the road while
going towardsJamkhed from Kharda.
It is true that no one reside in the
periphery of 1 Km. from the spot of
incident. The place where I was hidingis the only place having Mahananda
creeper.That spot is at a distance of 50 to 60
feet away from
the road.
Tatyaram
chased me or 4 to 5 seconds.I had not seen if Baban Misal was
caught during those 4 to 5 seconds. When
I turned back I seen Baban Misal was::: Downloaded on – 09/06/2013 17:51:52 :::
13 Cri.AppealNo.29/2011caught. I seen that Baban was caught
at a distance of 30 to 35 feet a wayfrom road.
Myself and baban ran in the land on
one side of the road in two directions.The distance between the place from
whereI was watching and the spot is incident
is about 70 to 80 feet. The incident
of Baban Misal, caught holding by chain
and encircled occurred at one place. The
said act was near the well.I had not gone ig for rescue of Baban when I seen the incident. The chain wasnot completely taken around his body. He
caught hold from behind. Hands of Harishwere ahead of Baban. He was caught hold
for 5 to 8 minutes. After 5 to 6
minutes he had fallen. After he had
fallen, the assault had not
continued.When the incident occurred between 10 to
15 minutes, no vehicle went through the
road.It is true that it was Saturday, the
weekly market day of Jamkhed. It is true
that the people of Kharda and
Anandwadivisit weekly market at Jamked. It is
true that at Jamkhed at every Saturday
there is market for bullocks. OnKharda Jamkhed road, the traffic is rare.
(8) to (12)…………………………
(13) I do not know if on 5.7.2008 the
houses and boardings of accused were
damaged and police case was registered.I do not know Suman Kale from Sonegaon. I do not know if Suman Kale ::: Downloaded on - 09/06/2013 17:51:52 ::: 14 Cri.AppealNo.29/2011 had filed complaint under section 395 IPC against Baban Misal. I do not knowif the incidents of robbery had occurred
on Kharda to Jamkhed road. It is truethat Jamkhed-Kharda road leads to
Tuljapur, Solapur.It is true that in the case in the year
1996 of which I deposed it was a
case of assault and injury to me
under section 307 IPC. We have cross
terms with the accused since 1996.(14)……………………………….
(15) At Kharda there is Police outpost.
Village Rajuri is situated at 3 Km.from
the spot of incident towards
Jamkhed.The distance between spot of incident
and Jamkhed is about 10 Km. I cannot
say if the cattle market of Jamkhed on
that day closed at about 5 to 6 p.m.It is true, that
on the road betweenKharda to
Jamkhed there are Rikshaws andjeep
travelling for the passengers.Village Nandwadi is situated a ½ Km
awayfrom spot of incident towards
Kharda.Que.:If you felt to take help of passing
any vehicle on the road after the
incident?Ans.:I had not stopped any vehicle but it
was stopped by them on their own.I had not tried to send message to my
relatives. There were people in the
vehicles which stopped there.I inquired them if any one has a phone.
They were having mobile phone. I have
not taken the phone and called the::: Downloaded on – 09/06/2013 17:51:52 :::
15 Cri.AppealNo.29/2011relatives. Those persons informed the
relatives on phone. I had not given thetelephone number of the relative to them.
After the incident occurred and accused
ran away these vehicles stopped after 5
to 10 minutes. I had not asked those
persons to call police on phone. I wassitting at a distance of 10 feet away
from the body.The motorcycle had remained at the same
place till completion of the incidentwhere it was fallen.
Maruti car and motorcycle were visible to
the travellers to and fro.We both had fallen down from the
motorcycle. When the car was brought
across, Baban was riding the motorcycle
by one hand and talking on mobile by
another hand. The place where we hadfallen there is side gutter to the road.
I was not injured.
Mahananda creeper is to 60 feet away
from the road. It was possible to reachthe road from Mahananda creeper.
I have not attempted to get help when the
incident was going on by coming on the
road.There is no river near Mahananda creeper.
It is not true to say that there is no
Mahananda creeper. It is not true to say
that I deliberately deposed falsely that
there is Mahananda creeper to make out
falsely that at that place I was hiding.On the next day, I had gone to the place
of the incident with police. At that::: Downloaded on – 09/06/2013 17:51:52 :::
16 Cri.AppealNo.29/2011time, I had shown the place of Mahanda
creeper to the police. The spotpanchanama was written in my presence.
(16)……………………………….
(17) It has not so happened that Harish
Birangal assaulted by chain on Baban. Ihad stated in the complaint that
Harish Birangal assaulted by chain.Que.:The statement in complaint that
Harish Birangal assaulted by chainon Baban is false?
Ans.:I stated such thing under fear. I
cannot say if it is true or false.
It is true to say that I was underfear condition amongst the police.
It is not true to say since I had
not witnessed the incident, and I
was pressurized to give false
complaint, therefore, I was underfear.
Que: Since you were under fearful
condition, you cannot say if the
incidents as narrated in the
complaint are correct or wrong?Ans. Some mistake is possible.
(18) to (22)………………………..
(23) ………………I was not injured
when I fallen from the motorcycle nor
my clothes were torn at that time. On
that day, I had not attended the
hospital it is not true to say that
when I had seen the dead body of Baban
then only I realized that he received
injuries on various parts of body.(24)……………………………….
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17 Cri.AppealNo.29/2011(25) …………..I do not know if Baban
was using wrist watch. I cannot say if
Baban was using golden chain. It isnot true to say that at the time of
incident, Baban was wearing golden chain
and having money with him.He was having mobile hand set only. I do
not know if Baban was always carrying
diaries of accounts and address with
him. It is true that due to the assault
on Baban, blood was on the shoulder. Ido not know that blod was stained on
the cyclechain. The time period was of 5minutes from lifting of the dead body
from the place until the accused left
from that place.( sub-paragraphing is done for
convenience. The aforesaid extract is
taken from PAGE NOS.257, 258, 260, 261 to
263, 268 to 269, 272, 275 of the paperbook)
8) Perusal of post mortem examination
reveals as follows :-“(i) Cause of death reads as follows:-
“As per my opinion, the cause of death is
“shock due to cardio respiratoryfailure due to intra- cranial hemorrhage due
to Brain injuries due to Rupture of skull”(ii) Other injuries on the body are 17 in
numbers, as shown in column No.17,which reads
as follows :(1) Incised wound oblique on chin 07 cmx
1 cm x Bone deep;::: Downloaded on – 09/06/2013 17:51:52 :::
18 Cri.AppealNo.29/2011(2) Incised wound over lower part left
cheek oblique – 5 cm x 1 cm x bone deep;
(3) Incised wound oblique over Lt. cheek
above injury No.(2) – 4 cm x 1 cm x bone
deep.(4) Lacerated wound over middle part of
left cheek extending from lt. angle of
mouth up to Lower part of Lt. ear
orifice 12 cm x 3 cm x bone deep.(5) Incised wound oblique over upper
part of lt. cheek above injury No.4 – 6cm x 01 cm x bone deep.
(6) Incised wound oblique on lt. Side of
neck below lt. Ear – 8 cm x 01 cm x 2
cm.(7) Incised wound over middle part of
lt. Ear lower ½ of lt ear detached andmissing from body;
(8) Incised wound oblique over Rt. Cheek
extending from right angle of mouth 8 cm
x 1 cm x buccal cavity deep.(9) Right ear detached and missing from
body due to incised wound.(10)
Nose, both the eye-boles upper one
half of left cheek and Right cheek
missing due to crush injury.
(11)
Frontal bone, both paritals and both
temporal bones crushed and brain matter
carrying out.(12) Multiple fractures of occipital bone
on both sides brain matter is coming
out.::: Downloaded on – 09/06/2013 17:51:52 :::
19 Cri.AppealNo.29/2011(13) Linear abrasion on left side of
chest above nipple – 8 cm x 5 cms.(14) Linear Abrasion over left shoulder
on upper side – 4 cms x 2 cms.
(15) Linear Abrasion over left shoulder
on deltoid region – 5 cm x 01 cm.(16) Linear Abrasion 6 cm on left arm
laterally horizonally.(17) Linear Abrasion on left arm – 6 cms.
All the incised wounds are caused by
hard and sharp objects, abrasions and
skull vault, bone fracturesis caused by
hard and blunt objects”.9) Injury Nos.10, 11 and 12 pertain to the
skull injury. In minimum words – over half ofupper portion of head and skull bone was dis-
integrated and brain mass had protruded and was
in smashed condition.10) In the testimony, PW No.9 has stated as
under:“3……………………………….
(a) The brain matter totally fragmented.
Brain covering totally torn. Brain
sinuses totally torn. Brain matter is
mixed with the dark coloured clothes
blood. Brain matter cannot be weighed.
Two egg sized stones found in brain
matter. Stones are irregular in size.
………………………………….
………………………………….The egg size of stone I referred to
::: Downloaded on – 09/06/2013 17:51:52 :::
20 Cri.AppealNo.29/2011chicken eggs. Those two stones were not
sent to Chemical Analyzer nor given topolice…………………………….
(quoted from Examination-in-chief of PW
No.9 from page nos.374. 375 & 376 of
paper book)He has stated as regards the matter in
stomach as follows, :“4……………………………….
It is true if the matter in stomach getsvomited, it may occur on the clothes of
the person. It is true
ig that the
clothes of the deceased stained with
blood and not stained with faecal or
vomit matter material. The stomachwas totally empty.According to me more
than six hours passed after last meal
and death. There are no signs of
vomiting in Esophagus. It is true that
by such injuries to the brain instantdeath is possible………………..
………………………………….5…………………………………
It is true that if a person is caught
hold by cycle chain or hit by it, wealmarks are visible on the body. No weal
marks of the chainwere visible on the
dead body……………………It is true that crush injuries are
possible in accident.(quoted from Examination-in-chief of PW
No.9 from page Nos.375, 376 and 377 of
paper book)::: Downloaded on – 09/06/2013 17:51:52 :::
21 Cri.AppealNo.29/201111) The evidence on record is voluminous.
Entire case however rests upon the
testimony of PW No.1 – the sole eye-witness.12) The substance of testimony of PW No.1 as
regards what exactly had happened on the sceneof offence needs to be referred at the cost of
repetition in summary as follows:-(i) The accused had enmity with Baban
Misal.(ii) The accused had probably had tracked
the movements of Baban Misal.(iii) Therefore, accused, equipped with
weapons, followed Baban Misal while he wason his motorcycle with PW No.1 as pillion
rider, spotted him on the place of incident,and showered assault on Baban Misal.
(iv) The assault resulted in causing 17
injuries, as noted in column No.17 of postmortem examination. The accused had
smashed/scrambled his body, done him to
death, arranged the car to show scene of road
accident, thrown dead body of Baban Misal
near rear wheel of the car in a gutter and
fled from the scene of offence.::: Downloaded on – 09/06/2013 17:51:52 :::
22 Cri.AppealNo.29/2011(v) PW No.1 got scared with the
situation, kept weeping on the place ofoccurrence. The police inspector came on the
place of offence.(vi) The relatives of deceased Baban
Misal also arrived and PW No.1 and the
relatives kept crying and left the place forgoing to the police station only at 11.00
p.m.(vii) PW No.1 went to police station after
leaving the place of accident and lodged FIR
late into the night.13) The prosecution story summarized in the
foregoing paras portrayed by the prosecution, is
heavily criticized by the defence on variouscounts.
14) Various arguments are advanced to attack
testimony of PW No.1 regarding histrustworthiness. While attack on the testimony of
PW No.1 is on account of omissions or
contradictions.Challenge to the worthiness of PW No.1
is on the ground of testimony being rendered
totally untrue and shown to be false on following::: Downloaded on – 09/06/2013 17:51:52 :::
23 Cri.AppealNo.29/2011points:-
(a) The injuries appearing in column No.17
and in particular injury Nos.1 to 9 and 14 to
17 may be caused due to any weapons in
isolation or in combination, which theaccused possessed.
These injuries are not fatal, taken
together or in isolation.(b) The injuries on the face and head
(Injury Nos.10, 11 and 12) are not justpossible but rather inevitable and most
eminent in case of a car and motorcycle
accident, and are rather impossible by oneand all sharp and hard weapons taken together
or in isolation.(c) The spot panchanama shows that :-
(i) The brain matter is seen mixed with
soil.(ii) Two stones of the shape and size of
egg, have got into the brain mass stillremaining lower portion of head, while
upper half thereof is crushed and lying
on the ground mixed with soil.
(d) The scene of offence and the position
in which the dead body of Baban Misal was::: Downloaded on – 09/06/2013 17:51:52 :::
24 Cri.AppealNo.29/2011found on the place of occurrence, do, falsify
in totality, the prosecution story portrayed
through the testimony of PW No.1.
15) In order to analyse these submissions,
this Court has scrutinized and has re-appreciated
the evidence.
16) Injury Nos.10, 11 and 12 in column No.17
read as follows:
“(10) Nose, both the eye-balls
upper one half of left cheek andRight cheek missing due to crush
injury.
(11) Frontal bone, both
parietals and both temporal bones
crushed and brain matter carrying
out.
(12) Multiple fractures of
occipital bone on both sides, brainmatter is coming out.”
(quoted from post mortem examination
report at page Nos.384 and 385 of paper
book)
17) In the spot panchanama, the description
as to scene of offence, with specific reference
to the situation, blood-stains on the car, the
description of brain matter etc., reads as
follows:
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25 Cri.AppealNo.29/2011
(a) As to Location:-
Þ—–lnj ?kVuk fBdk.kh gtj vlysys fQ;kZnh ;kauh vkiys
ukao “kke fdlu lkBs o;% 38 jk- lksusxkao] rk- tke[ksM] vls
lkaxwu xqUg;kaph FkksMD;kr gdhdr R;kauh lkafxryh o xqUgk ?
kMys fBdk.k nk[kfoys rs ikgrk lnjps fBdk.k gs vkuanokMh
f”kokjkr tke[ksM rs [kMkZ tk.kkjs jksMps nf{k.ksl] jksMps yxr
LVksu ua- 75@6 iklwu if”pesl 30 QqVkoj vlwu yxr
nf{k.ksl xfguhukFk dksaMhck tk;Hkk; ;kaps ekydhps “ksrkyxr
xqUgk ?kMys fBdk.k vlqu lnj fBdk.kh vlysyk tke[ksM rs
[kMkZ tk.kkjk jLrk iqoZ&if”pe vlqu rks iDdk Mkacjh fol
QqVh vkgs- nksUgh cktqus lqekjs ikp & ikp QqVh dPpk jLrk
vkgs o dPP;k jLR;kps nksUgh cktwyk lkbZM xVkj vkgsr-
jksMps nf{k.ksl dPP;k jLR;kyxr vlysys lkbZM xVkj
e/;s ,d tkaHkG;k jaxkph ek:rh dkj ua- ,e,p&12&ok; ,&
7929 gh if”pesdMs rksaM d:u frps MkohdMhy nksUgh pkds
lkbM xVkjke/;s o mtohdMhy nksUgh pkds xVkj iV~Vhps oj
v”kk fLFkrhr vlqu iq<hy cktwl dkpsoj HkxO;k jaxkr ^lkbZ*
vls ejkBhe/;s fyfgysys vkgs—– Þ
(quoted from spot panchanama (Exh.75)
page No.317)
(b) As to blood:-
Þ—–lnj dkjpk Dyhuj lkbZMpk ikBhekxhy njoktk m?kMwu
ikgrk vkrhy lhVoj jDrkps Mkx vkgsr rlsp vkre/;s iq<hy
lhV o ekxhy lhVP;k ekxs ,d Hkkjr xWlph Vkdh flycan
fnlr vkgs- fDyuj lkbZMps njoktkps dkpsoj ckgsjhy cktwus
jDrkps Mkx ykxys vlwu ekxhy fDyuj lkbZMps fMLdoj]
Vk;joj jDrkps Mkx vlqu pkdkyk ykxwup xVkjhr tfeuhoj
jDrkps FkkjksGs vkgsr—– Þ
Þ—–dkjps MkohlkbZMps ekxhy pkdktoG vankts 2 QqV x 2
QqV vkdkjkpk jDrkpk FkkjksGk fnlr vlwu R;k yxrp lqekjs
3 fdyks otukpk vkscM/kkscM vkdkjkpk jDrkus Hkjysyk nxM
iMysyk vkgs –
(quoted from spot panchanama (Exh.75)
from page Nos.318 and 319 of Paper book)
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26 Cri.AppealNo.29/2011
(c) As to description of face and head of
dead body :
“—–e;rkps
Mksds ukdkiklqu laiw.kZ oj QqVysys o m?kMs vkgs
MkO;k tcM;kiklqu MkO;k dkuki;Zar [kkyh uewn izek.ks t[kek
fnlr vkgsr—– Þ
(quoted from Inquest Panchanama, (Exh.68)
drawn on the dead body, seen in the mortuary,
at page Nos.302,of the paper book)
18) At this stage, it would be useful to
refer to the version of PW No.1 relating to the
manner, in which the dead body was thrown. Though
relevant portion is a part of quotation above, it
would be convenient to reiterate it:
” They
lifted
Baban Misal byholding hands and legs and thrown him
near the
rear wheel of the Maruti
car in the gutter.
(quoted from Examination-in-chief of
PW No.1 (Exh.61) at page No.250)
19) The description of status of the brain,
given by the Doctor – PW No.9, needs advertence.
20) Relevant portion of testimony of PW No.9
– Dr.Umesh Rayate is quoted herein before in
paragraph No.10, which, at the cost of
repetition, is quoted below:
“3. The brain matter totally
fragmented. Brain covering totally::: Downloaded on – 09/06/2013 17:51:52 :::
27 Cri.AppealNo.29/2011torn. Brain sinuses totally torn.
Brain matter is mixed with the
dark coloured clots blood.
Brain matter cannot be
weighed. Two egg sized stones found
in brain matter. Stones are
irregular in
size…………………………..
The egg size of stone I referred
to are chicken eggs. Those two
stones were not sent to Chemical
Analyzer nor given to police.”
(quoted from Examination-in-chief
of PW no.9 (Exh.90) pag Nos.374, 375
& 376)
21) Now, considering the possibility as to
whether the injury suffered by Baban Misal were
solely on account of the assault and whether the
possibility of accident is to be totally ruled
out, one has to focus on the injury suffered by
Baban Misal to his head.
22) It is already noted that incised wounds
are capable of being caused by sharp and hard
weapon. Therefore, those injuries may support the
prosecution and cannot be debatable unless the
possibility of main injury to the head by assault
is totally ruled out.
23) The injury to the head is described,
wherein the upper half of skull is fractured,
crushed and separated and is not shown to have
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28 Cri.AppealNo.29/2011
been retrieved or recovered and the brain mass is
shown to have spilled out and two egg sized
stones got mixed into the brain mass, which had
not spilled out.
24) The description of scene of offence and
of the dead body and its medical /forensic
evidence, generates the following questions:-
(a) Under what circumstances, when a dead
body is thrown to create a scene of accident,
could stones get admixed into un-separatedbrain matter?
(b) How could injury be caused to occipital
and parietal bones and destruction of eye
matter occurr in absence of positive evidenceof use of sharp and hard weapon amongst
available, i.e. Sattur?
25) From the manner in which the skull bone
got fractured, crushed and part of brain matter
had remained in the body and part thereof
separated, rules out the possibility of assault
by sharp weapon. The prosecution should have
ruled out the possibility of crush injury by
sharp weapon. In the event of injury by sharp
weapon the brain matter could not have got
crushed, spilled and mixed into the soil, but
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29 Cri.AppealNo.29/2011
would have got segregated and laid on the ground
and may have still got mixed into soil. However,
doctor could never have used the word “crushed”.
The smash/crush-like situation was
possible probably due to traumatic hammer-like
impact, which appears to us to be possible only
in case of an accident.
26) The next aspect to be dealt with, is,
whether the version of PW No.1, as to his being
in the company of deceased Baban Misal since
afternoon, needs to be tested.
27) PW No.1 has stated that he and the
deceased took food between 2.00 to 2.30 p.m.,
This fact could have been reinforced by
prosecution by some corroboration.
28) PW No.9 has, in specific terms, deposed
that there was no evidence of vomiting by Baban
Misal seen on the clothes of deceased and any
other evidence to suggest that Baban had taken
food till six hours before.
29) This version of PW No.9 brings entire
version of PW No.1, about his being in the
company of the deceased since afternoon having
taken lunch as well as being prsent at the place
of offence comes under grave shadow of doubt.
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30 Cri.AppealNo.29/2011
30) The only evidence, which the prosecution
relies upon as far as the presence of PW No.1 is
concerned, is, the torn piece of T-Shirt. This
piece of cloth in isolation, does not, in any
manner, prove that PW No.1 was accompanying the
deceased in the place of incident.
31) PW No.1 deposes that he fell down with
deceased due to accident before assault. PW No.1
does not have injuries whatsoever. At least bare
abrasion or contusion was imminent. The absence
of injury is evidence of the probability that
nothing as alleged by PW No.1 had occurred.
32) It emerges from the foregoing discussion
that though the prosecution has tried to portray
it as a case of assault, the evidence as to the
nature in which the injury was suffered to the
skull and evidence as to the nature in which the
brain matters was spilled out, creates grave
doubt as to probability of the story couched by
the prosecution.
33) The nature in which the head and skull
bones have got crushed and rendered in dis-
integrated position, creates a strong suspicion
as to whether this type of destruction of a vital
and strong human organ, i.e. Head (skull), and
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31 Cri.AppealNo.29/2011
crushing of skull bone, is possible by use of the
weapon – Sattur.
34) The manner in which the head was crushed
is certainly impossible with weapons such as
sword, knife etc.
The type of crushing injury that has
occurred, is possible only in a situation of
trauma caused by accident or caused manually by
use of hard and blunt object with severe impact.
In the present case, according to the
prosecution, the accused have made a show of
accident. However, alleged weapon of assault is
sharp and does not correspond with the injuries.
35) The human act of assault and crushing
the skull bone appears to be a figment of
imagination rather than being raised to the level
of preponderance of probabilities of existence as
a fact.
36) PW No.1 does not rise to the level of
trust as a truthful witness. Certain facts and
conduct of PW No.1, viz.:-
(a) in running away from the place of
occurrence;
(b) failing to intervene;
(c) having said that he took food with the
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32 Cri.AppealNo.29/2011deceased at 2.00 p.m. and absence of food
stuff and lack of material vomited bydeceased at the place of incident;
(d) absence of injury, whatsoever, in spite
of falling from a speeding motorcycle;
(e) solitary evidence as to torn T-shirt
being found;
(f) failure of police in taking cognizance
in spite of arriving at the place of
incident.
(g) delay in recording the FIR;
(h) type of damage that motorcycle and the
car suffered which is not possible for humanagency;
(i) the blood seen on the place of scene of
offence, inside the car and outside, create a
doubt as to whether the dead body was reallylifted to some other place, where no blood
was found in the possible proportion, whilethere was pool of blood where the dead body
was lying;
all taken together, create grave doubt and
suspicion as to presence and availability of PW
No.1 at the place of incident.
37) All these circumstances lead to the
conclusion that the prosecution has utterly
failed to prove the case beyond suspicion.
38) We therefore pass following order :-
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33 Cri.AppealNo.29/2011
(a) The Criminal Appeal Nos.29/2011 and
121/2011 succeed and are allowed. Fine amount, if
paid by the appellants in these appeals, be
refunded to them.
(b) Criminal Appeal No.27/2011 filed by wife
of deceased is dismissed.
(c) The Judgment and order of conviction and
sentence recorded in Sessions Trial No.199/2008
of Sessions Court, Nanded is set aside.
(d) The appellants/accused be set at
liberty, if they are not required in any other
offence.
Sd/- sd/-
(A.R.JOSHI,J.) (A.H.JOSHI,J.)
bdv.
Fldr 16.9.11
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