1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.450 OF 2002
Manohar Sidram Ukarande,
Age: 35 years, R/o. Borale,
Taluka Mangalwedha, Dist.: Solapur
(At present Lodged in Yervade
Central Prison) ..Appellant.
V/s.
The State of Maharashtra
ig ..Respondent.
CRIMINAL APPEAL NO.451 OF 2002
1. Suresh Dattu Bhojane,
Age: 27 years,
2. Anna @ Anil Maruti Bhojane,
Age: 22 years,
Both R/at : Borale,
Tal.: Mangalwedha, Dist.: Solapur
(At present lodged in Yervada
Central Prison, Pune). ..Appellants.
V/s.
The State of Maharashtra ..Respondent.
CRIMINAL APPEAL NO.452 OF 2002
Dhondappa Bimrao Nakate,
Age: 32 years, Occu.: Agriculturists,
R/at : Borale, Tal.: Mangalwedha,
Dist. : Solapur (At present detailed as
::: Downloaded on - 09/06/2013 16:32:52 :::
2
condemned Prisoner in Yerwada
Central Prison, Pune) ..Appellant.
V/s.
The State of Maharashtra ..Respondent.
CRIMINAL APPEAL NO.453 OF 2002
1. Sachin Rama Bhojane,
Age: 18 years,
Occu.: Student-cum-business
2. Satish Rama Bhojane,
Age: 27 years, Occu.: Profession,
Both R/o. Borale, Taluka
Mangalwedha, Dist. Solapur
(At present detailed as condemned
Prisoner in Yerwada Central
Prison, Pune) ..Appellants.
V/s.
The State of Maharashtra ..Respondent.
AND
CRIMINAL APPLICATION NO.1171 OF 2010
IN
CRIMINAL APPEAL NO.453 OF 2002
Sachin Rama Bhojane,
Age 30 years, Occu.: Nil
R/o. Borale, Tal.: Mangalwedha
District : Solapur ..Applicant
V/s.
The State of Maharashtra ..Respondent.
::: Downloaded on - 09/06/2013 16:32:52 :::
3
Mr.Ujwal Agandsurve for the appellants
Mr.F.R. Shaikh, APP for State.
CORAM : A.M. KHANWILKAR & U.D.SALVI, JJ.
RESERVED ON : 9th SEPTEMBER, 2010
PRONOUNCED ON : 18th OCTOBER, 2010.
JUDGMENT (PER U.D.SALVI, J.)
1.
These are the appeals preferred against the judgment and
order of conviction under Sections 147, 148, 302 & 307 r/w. 149 of the
I.P.C., 1860 in Sessions Case No.56/99 passed by the learned II
Additional Sessions Judge, Pandharpur at Pandharpur on 21/2/2002.
The accused No.7 Kondabai Bhimrao Nakate and accused No.8 Chhaya
Rama Bhojane were acquitted in the said case and the State has
preferred to remain silent as regards the challenge to the judgment and
order of acquittal of the said accused.
2. Accused No.4 Manohar Sidram Ukarnade, the appellant in
Criminal Appeal No.450/02, accused No.5 Suresh Dattu Bhojane and
No.6 Anna @ Anil Maruti Bhojane, the appellants in Criminal Appeal
No.451/02, accused No.1 Dhondappa Bhimrao Nakate, the appellant in
Criminal Appeal No.452/02 and accused no.2 Sachin Rama Bhojane
::: Downloaded on – 09/06/2013 16:32:52 :::
4
and No.3 Satish Rama Bhojane, the appellants in Criminal Appeal No.
453/02 were sentenced as under:-
(i) to suffer rigorous imprisonment for a period of one year and to
pay fine of Rs.100/- i/d. to suffer further simple imprisonment for
a period of one week for the offence punishable under Section
148 of I.P.C.;
(ii) to suffer rigorous imprisonment for a period of 7 years and to pay
a fine of Rs.100/- i/d. to suffer S.I. for a further period one week
for the offence punishable under section 307 r/w. 149 of I.P.C.;
(iii) to suffer rigorous imprisonment for life and to pay a fine of Rs.
100/- i/d. to suffer further imprisonment for a period one week
for the offence punishable under section 302 r/w. 149 of I.P.C.;
3. No separate sentence was passed for the offence punishable
under Section 147 of IPC, 1960. Substantive sentences were ordered
to run concurrently.
4. One Savita Madhukar Gaikwad, sister of the deceased
Mohan Mahadev Mungase and the injured Nandkumar Mungase lodged
complaint alleging assault with deadly weapons namely swords and
scythes on her brother Mohan and Nandkumar at about 8.00 p.m. on
::: Downloaded on – 09/06/2013 16:32:52 :::
5
6th February, 1999 in the house of one Rama alias Mama Bhojane by the
appellant-accused nos. 1 to 4 and 7 resulting in the murder of Mohan
and grievous injuries to Nandkumar, with Mangalwedha police station.
Crime at C.R. No. 10/99 under Section 302, 307, 34, IPC 1860 and 135
of Mumbai Police Act, 1951 came to be registered at the said police
station following the said complaint. The police took the photographer
and panch witnesses to the place of occurrence, i.e. the house of Mama
Bhojane. Dead body of Mohan Mungase was found lying in the house.
Inquest was held at the spot. The place of occurrence was
photographed. Body of the deceased was sent for postmortem
examination. Besides the body of deceased, four swords and scythes,
the weapons used in the crime were recovered from the said place.
Blood was found spilled inside the house of Mama Bhojane. Blood
stained weapons were duly seized. One tempo tractor was also seized
from the vicinity of the said house. Scene of offence panchnama was
drawn.
5. In the course of investigation, the accused were arrested.
Blood stained clothes found on person of the appellant-accused no. 1
Dhondappa, accused no. 2 Sachin, accused no. 4 Manohar, accused no.
4 Satish were seized from their person. Seized articles were sent for
further scientific investigation to the Forensic Science Laboratory.
::: Downloaded on – 09/06/2013 16:32:52 :::
6
Meanwhile, the statements of the witnesses were recorded. Statements
of the injured Nandkumar Mungase and Maruti Nakate were also
recorded by the Executive Magistrate at Solapur. The sketch of the
scene of offence was procured with the assistance of Inspector of Land
Records. Human blood was detected in the earth collected from the
place of occurrence, weapons used in the crime, clothes of the deceased
and injured victim, and clothes seized from the person of the accused
nos. 1 to 4.
6. Prosecution further revealed that the gory incident had
occurred as a result of quarrel over the entrustment of country liquor
shop belonging to Mama Bhojane to the deceased Mohan Mungase and
his brother Nandkumar for running it. According to the prosecution on
6th February, 2009 at about 7.00p.m. the deceased Mohan Mungase,
Balu Mungase, Anil Dhanve and Yuvraj Mungase were sitting near the
sho of one Shiva Chougule at village Borale when the accused nos. 1,
3,4,5 & 6 arrived at that place and started abusing and mortally
threatening Mohan Mungase; and thereafter the deceased Mohan
alongwith Balu Mungase, Anil Dhanve and Yuvraj Mungase went to the
house of Mama Bhojane to apprise the wife of Mama Bhojane accused
no. 8 Chhaya about the said incident. Around 8.00 p.m. that day, the
prosecution revealed, a telephonic call was made to Nandkumar
::: Downloaded on – 09/06/2013 16:32:52 :::
7
whereupon Nandkumar and his sister Saivta went to the house of Mama
Bhojane and happened to witness the murderous assault launched by
the accused with sharp edged weapons namely swords and scythes on
the deceased Mohan. Nandkumar was also assaulted and received
grievous injuries. Providentially, Nandkumar was saved from fatal
assault at the hands of the accused nos. 5 & 6 only for the reason of
Savita’s intervention. One Maruti Nakate who happened to come to
the house of Mama Bhojane was also assaulted with sharp edged
weapons and received injuries as a result thereof.
7. It is also the prosecution case that Anil Dhanwe, in the
meanwhile after witnessing the quarrel inside the house of Mama
Bhojane approached police at the outpost situated at Village Borale and
could get police constable Mahadev Matkari and his associates to the
place of occurrence. Police constable Mahadev Matkari, according to
the prosecution could witness Savita taking out the injured persons and
the accused Nos.2 & 3 following them in order to launch further assault
and on finding the police, withdrawing themselves to the confines of
the room. Police constable Mahadev Matkari peeping through the gap
in the door could further witness deceased Mohan lying in a pool of
blood inside the house and accused Nos.1 to 4 and 7 armed with swords
and scythes there. The prosecution further revealed that police
::: Downloaded on – 09/06/2013 16:32:52 :::
8
constable Mahadev Matkari and others removed the injured Nandkumar
and Maruti Nakatate firstly to Mangalwada police station and thereafter
to Rural Hospital, Mangalweda. Following these developments, the
prosecution further revealed the crime in the present case came to be
registered.
8. Charges (Exhibit 2) under Sections 148, 302 r/w. 149, 307
r/w. 149 of I.P.C. and section 135 of the Bombay Police Act were framed
on 23/2/2000. The accused did not plead guilty to the charges. The
record reveals that in response to a notice (Exhibit 11) under section
294 of Criminal Procedure Code, 1973, the accused admitted the
genuineness of the following documents.
(i) Inquest panchanama – dated 7/2/1999 (Exhibit-57);
(ii) Seizure panchama of the clothes of the deceased – dated
7/2/1999 (Exhibit-58);
(iii) Arrest panchama of the accused Kondabai Nakate – dated
12/2/1999 (Exhibit-59);
(iv) Post Mortem Notes – dated 7/2/1999 (Exhibit-60);
(v) O/c. Of the letter dated 7/12/1999 to the photographer –
(Exhibit-61);
(vi) Photographs (Exhibit – 62-66);
9. Besides these documents, the accused also admitted in the
evidence, the injury certificates Exhibits 89 & 90 in respect of injuries
::: Downloaded on – 09/06/2013 16:32:52 :::
9
sustained by P.W.5 Nandkumar and P.W.7 Maruti Nakate.
10. The prosecution examined P.W.1 Vitthal Pawar,
Maintenance Surveyor to place on record the sketch of the place of
occurrence and further proceeded to examine P.W.2 Ramchandra
Phadtare, P.W.3 Sidheshwar Dhavare – panch witness, P.W.4 Savita
Gaikwad – the complainant, P.W.5 Nandkumar Mungase – injured victim,
P.W.6 Parsuram Randive – panch, P.W.7 Maruti Nakate – injured victim,
P.W.8 Balu Mungase, eye witness, P.W.9 Mahadev Metkari – police
constable of outpost at village Borale, P.W.10 Shatrughan Admane –
A.S.I. Mangelwedha police station, P.W.11 Suresh Ghadge – A.P.I. and
Investigating Officer. The panch witnesses and P.W.7 – Maruti Nakate,
one of the injured victim turned hostile. The evidence of P.W.7 Maruti
Nakate however, affirms the occurrence of the gory incident at the
house of Mama Bhojane, the place of occurrence at the material time.
His departure from the prosecution case was marked by an averment
that he did not know who were the assailants.
11. It is in this background, learned Advocate Agandsurve
submitted that the utterances in defence, as disclosed through the
evidence and examination of the accused in response thereto dismisses
the prosecution case as a false and concocted one created out of
::: Downloaded on – 09/06/2013 16:32:52 :::
10
political rivalry. The accused in their defence have examined D.W.1
Bhimrao Talbhandare, Executive Magistrate to bring on record that the
statements of P.W.5 Nandkumar Mungase and P.W.7 Maruti Nakate
(Exhibits 144 & 145) recorded under Section 164 of Cr. P. C. The
prosecution has relied on both direct and circumstantial evidence and
submitted that the evidence was complete and sufficient to rope in the
accused persons in the crime, particularly for the reason that there was
clinching evidence regarding the incident of assault in Mama Bhojane’s
house and there was no reason for the injured victims to involve
innocent persons in the crime. The defence on the other hand, assailed
the evidence of eye witnesses P.W.4 Savita, P.W. 5 Nandkumar and P.W.8
Balu Mungase. The contradictions and discrepancies in their evidence
were pointed out to discredit their evidence.
12. Taking total view of the evidence and its collective study in
light of the judicial precedents cited by the rival parties, the perusal of
the impugned Judgment shows, the learned trial Court held that the
prosecution succeeded in establishing that the appellant accused being
armed with deadly weapons had formed an unlawful assembly with
common object to commit murder of the deceased Mohan Mungase and
the injured victims and had committed murder of the deceased Mohan
Mungse and attempted to commit murder of injured victims
::: Downloaded on – 09/06/2013 16:32:52 :::
11
Nandkumar Mungse and Maruti Nakate. Failure of the prosecution to
give evidence regarding blood group, Learned trial Court held, did not
weaken or disturb trustworthy ocular version in respect of the crime
and the criminals involved in the commission of such crime.
13. The learned Advocate Agandsurve for the appellants
pointed out that with the demise of the Appellant Dhondappa B.
Nakate in Criminal Appeal No.452 of 2002, the said appeal stood
abated and what remained for consideration of the Appellate Court was
the question of the involvement of the other appellants in the crime.
The learned Advocate Agandsurve for the Appellants took us through
the evidence led by the rival parties and focused his submission on the
testimony of P.W.5 Nandkumar Mungase. The reason for this approach,
he submitted, was the learned trial Court’s distaste for the evidence of
P.W.4 Savita Gaikwad, the complainant, P.W.6-Parsuram Randive, P.W.7-
Maruti Nakate and the panch witness. According to him, the evidence
of P.W.5 Nandkumar Mungase suffers with material contradictions and
omissions and therefore, deserves no credence. Even if believed, he
submitted, the evidence of P.W. 5 Nandkumar Mungase assigned no
specific role to the appellant accused Nos. 5 and 6 in the crime and
therefore, the Accused No.5 Suresh Bhojane and Accused No.6-Anna @
Anil Maruti Bhojane deserve accuittal in the present case.
::: Downloaded on – 09/06/2013 16:32:52 :::
12
14. In the course of the arguments, it was felt necessary to
consider the efficacy of the medical evidence, namely, the admitted Post
Mortem Examination report (Exh. 60), injury certificates(Exh. 89 and
90) in absence of the testimony of the concerned medical officers. Very
fairly, the learned Advocate Agandsurve for the appellants placed
before us the Judgment of the Full Bench of this Court in the case of
Shaikh Farid Hussinsab V/s. State of Maharashtra reported in 1981 Mh.
L.J.345. He also drew our attention to the Judgment in the case of
Mohinder Singh Inder Singh V/s. The State reported in AIR 1953 SC 515,
to urge before this Court that it was the duty of the prosecution to prove
by experts evidence the nexus between the injuries and weapons, as it is
a case of death or injury by lethal weapons.
15. The learned Public Prosecutor submitted that the learned
trial Court had rightly believed the testimonies of the victims who had
opportunity to witness the crime in electric light. Occurance of the
incidence is quite evident even from the hostile testimony of P.W. 7
Maruti Nakate, as well as the circumstances, which were brought on
record by the Investigating Officer. He further submitted that at no
point of time, the accused had raised any issue regarding the medical
evidence and questioned the injuries observed by the medical officer in
cause of injuries and the cause of death as revealed through the PM
::: Downloaded on – 09/06/2013 16:32:52 :::
13
report (Exhibit 60) and Injury Certificate (Exhibits 89 & 90). The
admission of the said documents, in such a situation, he submitted,
obviate the need to examine the concerned medical officers. To
demonstrate the fact that the weapons were sharp edged weapons, he
invited our attention to the weapons, which were specially produced
before us for inspection.
16. In Shaikh Farid Hussinsab’s case, the Full Bench of this
Court examined the scope of section 294 of Cr.P.C. in understanding the
worth of the Post Mortem Report, genuineness of which was admitted
by the Accused in evidence. The probative value of such Post Mortem
Report, i.e. the medical evidence came under judicial scanner. In the
said case similar as the present one wherein the doctor who held the
post mortem examination and prepared notes was not examined at the
trial, after the defence had indicated that it was not disputing
genuineness of the post mortem notes in response to a query under
sub-section 1 of section 294 of the Code. Ganpat Raoji’s case(Ganpat
Raoji v/s. State of Maharashtra-reported in 1980 Mh.L.J. 60) where
similar question was raised and answered in favour of the defence was
also considered by the Full Bench.
17. While dealing with Ganpat Raoji’s case, the Full
::: Downloaded on – 09/06/2013 16:32:52 :::
14
Bench of this Court observed that two different rules one governing
probative value of documentary evidence and other governing its
reception in evidence, were read together in arriving at a wrong
conclusion. The reason thereof for this observation lies in the
difference between the probative value and the reception of documents
in evidence. Rightly so, therefore, the Full Bench could clearly see in
Section 294 of the Code of Criminal procedure. 1973 the potential to
facilitate the waiver of the mode of proof prescribed under Section 67 to
71 of the Evidence Act in criminal cases. In the instant case, this
potential has been utilised in order to dispense with the mode of proof
in respect of the P.M. notes Exhibit-60. As regards the probative value
of the document, in terms of its value as “corroborative” and
“substantive” evidence, all depends on the context and set of facts in
each case. The following observations made by the Full Bench of this
Court at para 15 of Shaikh Farid Hussinsab’s case are material in this
regard:-
“15. Ganpat Raoji’s case as also the Gujrat High Court
case were cases in which failure to examine the doctor was
found to have resulted in a miscarriage of justice. In some
such cases location of injuries, extent of the depth and
width and the details as to the nature thereof and
possibility of their being caused differently from the one
sought to be established, are all very important factors and
the doctor’s answers to some pertinent questions in
evidence can make a difference to the result of the case.
But this cannot be true of each and every case. Whether::: Downloaded on – 09/06/2013 16:32:52 :::
15the doctor’s evidence is necessary or not depends on facts
and facts of each case, the prosecutor, the accused and his
lawyer being the best judges to decide it as also the pointson which each one of them should concentrate their attack.
Their reaction to the query under sub-section (1) ordinarily
should be decisive. Raising no dispute to the genuinenessof any document implies their considered decision of
further details being irrelevant. The Court has ordinarily to
accept this decision and refrain from entering into the
arena itself unless miscarriage of justice is apprehended ondemonstrable grounds. The section also invests the Court
with a discretion to examine the doctor or any such witness
in that case. The section itself thus furnishes in-built
protections to the defence or the prosecutor againstpossible lapses. It was open to the Court in its such
discretion to examine the doctor or any other witnesswhen it apprehended miscarriage of justice. Mere such
apprehension cannot justify interpreting the section
differently and hold it inapplicable to post-mortem reportsin the face of its plain language indicating to the contrary.”
In the instant case, there is no controversy over the injuries sustained by
the deceased as well as injured victims in the crime. No such
controversy figures in the evidence in respect to the weapons used vis-
a-vis injuries sustained. The medical evidence in the fact and
circumstances of this case, therefore, needs to be accepted. Judgment
in Mohinder Singh Inder Singh’s case for the same reason is not
applicable in the present case.
18. Admitted documents, particularly, inquest panchanama
(Exh.56) and seizure panchanama (Exh.57 and 58) provide clear view
of the following facts:
::: Downloaded on – 09/06/2013 16:32:52 :::
16
(i) Body of the deceased Mohan Mungase bearing lacerated
bleeding injuries on the head, face and neck, as well as on thigh
and waist, was found lying on the tile flooring inside house No.
88/183, situated at village Borale.
(ii) Clothes of the deceased were found blood stained.
(iii) Clothes of the deceased were duly seized.
(iv) Bloodstained torned and cut clothes of the injured Nandkumar
Mundse were duly seized on 9/2/99.
19. Evidence of P.W.1-Vithal Pawar, Maintenance Surveyor at
Mangalwedhe gives the view of the layout of the said house No.88/183
at village Borale. His cross-examination fails to disturb this view in any
manner. In relation to this evidence, it is necessary to further
appreciate the evidence of eye-witnesses in the present case.
20. Evidence of P.W.4 Savita Gaikwad and P.W.5 Nandkumar
Mungase reveals that P.W.5 Nandkumar on getting telephonic call from
the house of Mama Bhojane proceeded to the said house and P.W.4
Savita followed him. Both of them made mention of electric light in the
house of Mama Bhojane at the material time. These facts have
remained unscathed in their testimonies and have survived their cross-
examination.
::: Downloaded on – 09/06/2013 16:32:52 :::
17
21. As regards the incident of assault with sharp edged
weapons i.e. swords and scythe. Both P.W.4 Savita and P.W.5
Nandkumar deposed that the deceased Mohan was assaulted with
sword. P.W.5 Nandkumar named the accused No.1 Dhondappa, Accused
No.2 Sachin, Accused No.3 Satish and Accused No.4 Manohar as the
accused armed with sword and assaulting the deceased Mohan at the
material time. He further went on to depose that the Accused No.1
Dhondappa gave blow of sword on the head of Mohan as a result of
which Mohan fell down, and then he was assaulted by the other
accused No.2 Sachin, Accused No.3 Satish and Accused No.4 Manohar
with swords. He further deposed that the Accused No.2 Sachin, Accused
No.3 Satish gave sword blows on his right shoulders and just below left
side of his throat, and he was saved due to the intervention of his sister
Savita from getting further sword blows at the hands of Accused No.5
Suresh and Accused No.6 Anna. He gave sequence of sword blows,
successively at the hands of Accused No.1 Dhondappa, Accused No.2
Sachin, Accused No.3 Satish. Significantly, he spoke about the arrival of
P.W.7 Maruti Nakate at the place of occurrence at the material time.
22. P.W.7 Maruti Nakate deposed that he was knowing all the
accused, deceased Mohan, injured Nandu Mungase and his sister Savita;
::: Downloaded on – 09/06/2013 16:32:52 :::
18
and when Mohan died, he was at the corner of one of the road in
village Borale and happened to sustain injuries at the door of the house
of Mama Bhojane. He testified that he sustained blow from the
backside and did not know who others sustained injuries at that time.
Obviously, he turned hostile to the prosecution. In his cross-
examination done by the prosecution, the prosecution made the reason
for his hostility, to surface. He averred that he shifted from a hut to a
constructed house in village-Borale after the incident as a beneficiary of
the scheme of Panchayat Samity of which one of the accused Chhaya
was a chair person. Whatever be the cause for his hostility, the evidence
of P.W.7 Maruti Nakate lost its value only as regards culprits involved in
the crime but not the occurrence of incidence at the house of Mama
Bhojane. This can very well be seen from the averments in his cross-
examination done on behalf of the accused, which revealed that the
incident had occurred in Mama Bhojane’s wada.
23. As discussed above, with the admission of P.M.examination
notes and injury certificates in evidence in response to the notice under
section 294 of Cr.P.C., there should be no difficulty in looking into the
said medical evidence for understanding controversy in the present
case. The injury certificates Exh. 89 and 90 give details of the injuries
sustained by P.W.5 Nandkumar and P.W.7 Maruti Nakate as a result of
::: Downloaded on – 09/06/2013 16:32:52 :::
19
the assault at the material time. Injuries, such as three incise wounds
caused by sharp weapon (i) on left side neck (grievous injury); (ii) right
shoulders (simple injury); and (iii) right hand four fingers cut
transversely (grievous injury) were found to have been sustained
within two hours of the reported incident by P.W.5 Nandkumar. Incise
wound caused by sharp object was detected on the right scapula of P.W.
7 Maruti Nakate. In light of this medical evidence and taking over all
view of the total evidence, the learned trial Court rightly concluded
that P.W. 5 Nandkumar having sustained the injuries as aforesaid could
be believed to have witnessed the incident in the electric light at the
material time and there was no reason to doubt his testimony. Having
reached this conclusion, there was no reason for the learned Trial Court
to have discarded the testimony of P.W. 5 Nandkumar for the reason of
inconsequential discrepancies in his evidence vis-a-vis his statement
Exhibit 145 recorded by D.W. 1 Deoram Bhimrao Kalbandhare,
Executive Magistrate, North Solapur.
24. Perusal of the statement at Exhibit 145 recorded by D.W. 1
Deoram Bhimrao Kalbandhare, Executive Magistrate reveals the fact
that P.W. 5 Nandkumar did make a reference to his unconscious state.
However, this fact has to be viewed in context with other statements
made by him as well as the evidence on record. In the statement
::: Downloaded on – 09/06/2013 16:32:52 :::
20
Exhibit 145, P.W.5 – Nandkumar reveals the involvement of the
Appellants – Accused, particularly Accused Nos.1) Dhondiba, 2) Sachin,
3) Satish, 4) Manohar in the assault as a result of which he fell
unconscious and the presence of all the Appellants – Accused at the
place of incidence. Evidence of P.W. 9 – Metkari reveals that he had
seen P.W.5 – Nandkumar and P.W.7 Maruti and one woman P.W. 4 Savita
coming out of house the house of Mama Bhojane, followed by Accused
– Appellants Satish and Sachin at the material time and; he had
removed the injured persons therefrom. The fact that the P.W. 5 –
Nandkumar was conscious and could have consciously witnessed the
said incident becomes clearly visible from the evidence of P.W. 9 –
Mahadeo Metkari.
25. No reason which may cloud the testimony of P.W. 5 –
Nandkumar, an injured victim of the assault emerges from the entire
evidence. Discrepancies as tried to be projected from the statement at
Exhibit 145 and 122 recorded by D.W. 1 – Kalbandhare and P.W. 10
Shatrughn Admane, in the evidence of P.W. 5 – Nandkumar do not
change basic theme of the version of P.W. 5 – Nandkumar so as to doubt
the said version of assault made by the appellant – accused. Moreover,
the testimony of P.W. 5 – Nandkumar finds corroboration in the
circumstances brought on record by the prosecution.
::: Downloaded on – 09/06/2013 16:32:53 :::
21
26. It can very well be seen from the evidence of P.W. 11 Suresh
Ghadge that the dead body of Mohan and weapons used in the assault
were found lying in the house of Mama Bhojane. Despite hostility of
the panch witnesses, the admitted evidence on record, particularly
inquest panchanama Exhibit 56 and photographs Exhibit 62 to 66 do
lend flavour of truth to the testimony of P.W. 11 – Suresh Ghadge.
Results of scientific investigation coupled with the circumstances on
record through the testimony of P.W. 11 – Suresh Ghadge do show
involvement of the appellant – accused as testified by P.W. 5 –
Nandkumar. There is no explanation coming forth from the accused for
the detection of human blood in the soil collected from the house of
Mama Bhojane and in particular the clothes seized from the person of
the accused.
27. Postmortem examination report Exhibit 60 reveals that
body of the deceased Mohan Mahadeo Mungse, a resident of Village
Borale which body was brought to the rural hospital, Mangalwedha for
postmortem examination by P.C. Mahadeo Metkari (P.W. 9), on
examination was found with the following antemortem injuries:-
“1. Incised would, 7½” 1″x2″, extending from vertex forehead,
nose to upperlip with fracture skull in the same line, soft
::: Downloaded on – 09/06/2013 16:32:53 :::
22
tissue and brain visible, bled profusely;
2. Incised wound, 7″x2″, extending from forehead to right ear
with fracture skull in same line, right eye destroyed, ear
cut, brain matter visible, fresh.
3. Incised wound, 6″ x ½” x ½”, right parietal occipital region,
oblique;
4. Incised would on chin and lowerlip 2 ½” x 1″ x 1″ oblique
with fracture lower jaw at chin;
5. Incised would with cut throad, 4 ½” x ½” x 1″ above
thyroid cartilege, vessel and narrow cut;
6. Multiple linear abrasions on chest abdomen and right
shoulder, 8″ to 13″; and
7. Multiple abrasions on right thigh, 2″ x 3″, 2 ½” x 2:, fresh.”
and the deceased died of shock and hamerage due to multiple scull
fracture coupled with the associated injuries. These facts do not
militate again the testimony of P.W. 5 – Nandkumar and P.W. 9 Metkari.
28. The learned Trial Court observed that there is reliable
evidence of P.W. 5 – Nandkumar and P.W. 9 – Mahadeo Metkari against
the appellant – Accused Nos.1 to 6, and the exclusion of evidence of
other witnesses would not render the evidence of P.W. 5 – Nandkumar
and P.W. 9 – Mahadeo Metkari useless. Considering the total evidence
on record, there is no reason to discredit the findings of the learned
Trial Court.
::: Downloaded on – 09/06/2013 16:32:53 :::
23
29. As regards the submission of the learned Advocate
Mr.Agandsurve for the appellant – accused that there was no active
participation of the appellant – accused Nos.5 and 6 visible from the
evidence, it would be essential to observe that P.W. 5 – Nandkumar in
his evidence averred about the presence of the accused No.5 – Suresh
and accused No.6 – Anna armed with swords at the material time, and
that he was providentially saved due to the intervention of P.W. 4 –
Savita. Evidence of P.W. 4 – Savita also speaks about the armed
presence of the said accused persons at the place of incidence at the
material time. She deposed that the accused had encircled the deceased
Mohan. These facts in the evidence are sufficient to rope in the accused
No.5 – Suresh and accused No.6 – Anna in the present crime as it
reveals the common object of the appellant – accused in assembling at
the place of incident at the material time.
30. In midst of delivering this judgment, a Criminal Application
bearing No.1171 of 2010 was moved on behalf of the appellant –
accused Sachin Bhojane for permission to engage another advocate and
to make further submissions on his behalf. It is contended on behalf of
the appellant – accused Sachin Bhojane that he was not aware about his
appeal reaching final hearing and only after he was intimated by the jail
authorities in that regard, he started taking steps to engage some senior
::: Downloaded on – 09/06/2013 16:32:53 :::
24
advocate of his choice to represent him in the said appeal, and in the
meanwhile some other advocate, not authorized by him proceeded with
his submissions. The record reveals that as back as in January 2006,
the appeals were posted for hearing and the appellant – accused was
duly represented by Advocate Ujwal Agandsurve. On 25 th August 2010,
learned Advocate Agandsurve made a plea for giving discharge to him
in the present appeal. It was then observed that the learned Advocate
Agandsurve continued to be on record and so long as he was not
discharged, he owed duty to the Court to give assistance for speedy
disposal of the appeals. For the reason of appellant – accused Nos.2 to
4 being in jail, it was clarified that this Court would proceed with the
hearing of the appeals on the next date and the appellant – accused
Nos.5 and 6, who are on bail should make necessary arrangement to
appear and espouse their cause. On 31st August 2010, learned Advocate
Agandsurve made a submission that he had been instructed to appear
for appellant – accused Nos.5 and 6 and this happened in the presence
of the accused. The appeals were accordingly taken up for hearing the
next day under caption ‘accused in jail’. Now, therefore, it does not lie
in the mouth of the applicant – accused Sachin Bhojane that Learned
Advocate Agandsurve was not authorized by him to proceed in the
present appeal. The learned Advocate Agandsurve being duly
instructed by the applicant – accused Sachin Bhojane had tendered hisv
::: Downloaded on – 09/06/2013 16:32:53 :::
25
appearance on record, and as such was duty bound to proceed with the
appeals on behalf of the appellant – accused, including the applicant
Sachin Bhojane. The Criminal Application No.1171 of 2010 is,
therefore, rejected.
31. In our considered opinion, the appeals for the reasons
aforesaid are without any merit. As observed earlier, the Criminal
Appeal No.452 of 2002 stood abated. Other Appeals are, therefore,
dismissed. Bail bonds of accused Nos.5 and 6 are cancelled. They shall
surrender forthwith.
(U.D. Salvi, J.) (A.M. Khanwilkar, J.)
::: Downloaded on - 09/06/2013 16:32:53 :::