1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NOS.229/2003, 164/2003, 204/2003, 244/2003 and
614/2008
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CRIMINAL APPEAL NO.229/2003
APPELLANT :- Sudhakar s/o Awdhoot Vardhe
(Accused no.8) Aged about 27 years, Occ.Labour
R/o Village Sayat, Tq. Bhatkuli,
District Amravati.
ig ...Versus...
RESPONDENT :- State of Maharashtra,
through P.S.O. Kholapur,
P.S. Tq. & Distt. Amravati.
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[Shri V.G. Bhamburkar, Adv. for appellant]
[Shri M.J. Khan, APP for respondent]
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CRIMINAL APPEAL NO.164/2003
APPELLANTS :- 1. Jagannath s/o Bhaurao Utane,
Aged about 70 years, Occ : Pensioner.
2. Rajesh s/o Jagannath Utane
Aged about 34 years, Occ : Agriculturist.
Both r/o village Sayat, Tah : Bhatkuli,
Dist : Amravati.
...Versus...
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RESPONDENT :- The State of Maharashtra,
Through P.S.O. Kholapur,
Tah. & Dist. Amravati.
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[Shri Shashank Manohar, Adv. for appellants]
[Shri M.J. Khan, APP for respondent]
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CRIMINAL APPEAL NO.204/2003
APPELLANTS :- 1. Duryodhan s/o Deorao Vardhe,
Ori. Accused Aged about 48 years,
Occupation Labourer.
2.
Babulal s/o Chandumal Vardhe,
Aged about 42 years,
Occupation Labourer.
3. Dadarao Chandumal Vardhe,
Aged about 46 years,
Occupation Labourer.
All R/o Village Sayat,
Taluka Bhatkuli, District Amravati (In Jail).
...Versus...
RESPONDENT :- The State of Maharashtra,
through Police Station Officer,
Kholapur, Taluka & District Amravati.
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[Shri J.Y. Ghurde, Adv. for appellants]
[Shri M.J. Khan, APP for respondent]
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CRIMINAL APPEAL NO.244/2003
APPELLANTS :- 1. Chandu s/o Ramkrishna Wardhe
aged about 28 years.
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2. Vilas s/o Shrikrushna Wardhe
aged about 25 years.
3. Raju s/o Awadhoot Samdure
aged about 28 years.
4. Rameshwar s/o Ganpat Wankhade,
aged about 26 years.
All residents of Sayat, Taluka Bhatkuli,
Distt. Amravati.
Cri. Accused Nos. 4, 5, 6 & 10.
presently in Jail.
...Versus...
RESPONDENT :-
The State of Maharashtra
Through Police Station Officer,
Police Station, Kholapur, District Amravati.
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[Shri C.S. Kaptan, Adv. for appellants]
[Shri M.J. Khan, APP for respondent]
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CRIMINAL APPEAL NO.614/2008
APPELLANTS :- 1. Abhiman s/o Arjun Chakre,
(Original Aged about 50 years, Occupation : Labourer.
Accused
(In Jail) 2. Ganesh s/o Zinguji Wardhe,
Aged about 35 years, Occupation :
Labourer, Both residents of Sayat,
Tq. Bhatkuli, Distt. Amravati.
...Versus...
RESPONDENT :- State of Maharashtra,
through, P.S.O. Kholapur Police Station,
Tq. & Distt. Amravati.
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[Shri J.Y. Ghurde, Adv. for appellants]
[Shri M.J. Khan, APP for respondent]
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CORAM : A.H. JOSHI AND
A.B. CHAUDHARI, JJ.
Date of reserving the judgment : 14.01.2011
Date of pronouncing the judgment : 25.01.2011
J U D G M E N T : (PER : A.B. CHAUDHARI, J.)
1. Criminal Appeal Nos.164/2003, 204/2003, 229/2003 and 244/2003
were filed in this Court by the appellants original accused namely,
Jagannath Bhaurao Utane (accused No.1), Rajesh Jagannath Utane
(accused No.2), Duryodhan Deorao Vardhe (accused No.3), Babulal
Chandumal Vardhe (accused No.7), Dadarao Chandumal Vardhe (accused
No.9), Sudhakar Awdhoot Vardhe (accused No.8), Chandu Ramkrishna
Vardhe (accused No.4), Vilas Shrikrishna Vardhe (accused No.10), Raju
Awdhoot Samdure (accused No.6) and Rameshwar Ganpat Wankhade (accused
No.5) against the judgment and order dated 28.2.2003 in Session Trial
No.249/2000, passed by the II nd Ad-hoc Additional Sessions, Amravati,
by which they were convicted for the offence punishable under Section
302 read with Section 149 of the Indian Penal Code and sentenced to
suffer imprisonment for life each and to pay a fine of Rs.2000/- each,
in default of payment of fine to further suffer simple imprisonment
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for three months each, further convicted for the offence punishable
under Section 147 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for six months each and to pay a fine of
Rs.500/- each, in default of payment of fine to further suffer simple
imprisonment for one month each and further convicted for the offence
punishable under Section 148 of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for one year each and to pay a fine of
Rs.1,000/- each, in default of payment of fine to further suffer
simple imprisonment for two months each.
Criminal Appeal No.614/2008 was filed by accused Abhiman s/o
Arjun Chakre (accused No.1) and Ganesh s/o Zinguji Wardhe (accused
No.2) against the judgment and order dated 30.06.2008, passed by the
4th Ad-hoc Additional Sessions Judge, Amravati in Session Trial
No.194/2003 by which they were convicted for the offence punishable
under Section 147 of Indian Penal Code and sentenced to suffer
rigorous imprisonment for two years each and to pay a fine of
Rs.1000/- each, in default of payment of fine to further suffer
rigorous imprisonment for three months each, further convicted for the
offence punishable under Section 148 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for three years each and to
pay a fine of Rs.1000/- each, in default of payment of fine to further
suffer rigorous imprisonment for three months each, and further
convicted for the offence punishable under Section 302 r/w Section 149
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of the Indian Penal Code and sentenced to suffer life imprisonment
each and to pay a fine of Rs.1,000/- each, in default of payment of
fine to further suffer rigorous imprisonment for two years each.
As these two appellants in Criminal Appeal No.614/2008 were
absconding during earlier trial, their trial was separated and after
they were arrested, Session Trial No.194/2003 was conducted.
FACTS :
2. The incident
dated 27.6.2000 which took place at Sayat
Bhatkuli Road in the night was the subject matter of both the Session
Trial Nos.249/2000 and 194/2003. The earlier Session Trial No.249/2000
was held after separating the trial of two accused persons namely,
Abhiman s/o Arjun Chakre and Ganesh s/o Zinguji Wardhe since they were
absconding, but later on their trial was also held vide Session Trial
No.194/2003.
The case of the prosecution as disclosed before the trial
Court was that on 27.6.2000 at about 9 to 10 p.m. P.W. 1 – Shivkumar
Anandrao Wardhe had gone towards the statue of Dr. Babasaheb Ambedkar
in his village. He noticed that the one tube-light from the electric
pole near the statue of Babasaheb was not seen, hence, he went to
nearby Samaj Mandir and found Jagannath Utane, Rajesh Jagannath Utane,
Chandu Ramkrushna Wardhe, Dadarao Chintumanji Wardhe, Duryodhan
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Deoraoji Wardhe near the hall of the Samaj Mandir. He heard noise and
found Vilas Shrikrushna Wardhe, Dinesh @ Raju Samdure and Rameshwar
Champat Wankhade removing the glass balls of marble from lotus in the
temple. P.W. 1 – Shivkumar obstructed them but they asked him to mind
his own business. Therefore, P.W. 1 Shivkumar went away, but
Rameshwar, Vilas and Dinesh @ Raju held him and caught hold of his
shirt collar and also abused him and was threatened by Jagannath Utane
with life. At that time, his cousin, Kashinath Wardhe arrived to whom
he told the incident. Thereafter, all of them went to one Sharafat,
auto rickshaw driver and proceeded towards Police Station Bhatkuli,
where they lodged report of the incident (Exh.39). While returning
back from the police station, they noticed obstruction on the road by
means of stones, as a result, the auto rickshaw in which they were
travelling was stopped. They saw Rajesh Jagannath Utane and Jagannath
Bhanudas Utane on the motorcycle and other persons were in the two
auto rickshaws. The persons from auto rickshaws came out with weapons
and Jagnnath and Rajesh who were sitting on a motorcycle gave a signal
to assault. Dinesh @ Raju caught hold the collar of auto driver
Sharafat and pulled him down and Rameshwar started assaulting him.
Since P.W.1 Shivkumar got frightened, he and his brother escaped
from the auto rickshaw and started running to save their life towards
Bhatkuli road. While running, his brother Samadhan was caught by the
accused persons, who started assaulting him with sharp cutting
weapon and sticks and kicks. P.W.1- Shivkumar was running ahead of
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Samadhan but watching behind. He after running for sometime concealed
himself behind the bush and started looking the incident from the bush
and found Jagannath was giving kick blows to Samadhan. Raju was giving
blows to him with sharp weapon’ when Vilas, Sudhakar and Chandu were
giving him blows with stick and iron pipe. Rameshwar was beating with
sticks. The second group of the accused persons namely, Rajesh Utane,
Dadarao Chantumanji Wardhe, Babulal Chantumanji Wardhe, Ganesh Zinguji
Wardhe, Duryodhan Wardhe, Abhiman Chakre were hurling abuses and were
saying that his brother Samadhan should be killed and thereafter they
left the deceased injured.
ig P.W.1 Shivkumar reached his house and
narrated the incident to his brother Mohan Wardhe, Subhash Sheshrao
Ingle, Kashinath kisanrao Wardhe, Bhimrao Ukardaji Wardhe and they
went to the site of the offence, who found that Samadhan was in dead
condition. All of them then went to Bhatkuli police station and lodged
report (Exh.40). After investigation, chargesheet was filed and the
trials proceeded. All the accused persons denied the charge framed
against them. The trial Court thereafter heard the evidence and
parties and made the impugned judgments, convicting the appellants.
SUBMISSIONS :
3. In support of the Criminal Appeals, various Counsel for the
parties in these appeals made the following submissions.
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(i) Vide Exh.39 and 40, reports lodged to the Police
Station Bhatkuli by P.W. 1 Shivkumar, claim was made that the first
incident reported under Exh.39 was seen by Shriram Wardhe and
Kashinath Wardhe, while claim was made in respect of the incident i.e.
incident of murder that P.W. 1 Shivkumar had narrated the incident
of murder immediately after its occurrence to Mohan Wardhe, Suhash
Ingle, Kashinath Wardhe (cousin) and Bhimrao Wardhe. The prosecution
examined P.W. 5 Bhimrao Urkad Wardhe, who turned hostile, but the
prosecution did not at all examine other persons, who were eventually
closely related to P.W. 1
ig Shivkumar. P.W. 6 Sharafatkhan, auto
rikshaw driver, an independent witness was examined, but he turned
hostile. Thus, the entire prosecution case rested only on a single
and sole testimony of P.W. 1 Shivkumar, who was an interested
witness, actively involved in the previous background of the alleged
political rivalry told by him. Therefore, the testimony of this
witness P.w.1 Shivkumar is required to be rejected outright.
(ii) The omissions amounting to contradictions in the
evidence of P.W. 1-Shivkumar if carefully seen go to the root of the
prosecution story and affects the quality of evidence of P.W. 1
Shivkumar and therefore, his testimony is required to be rejected
since his testimony is full of omissions and contradictions.
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(iii) Admittedly, the time of incident is said to be in
the midnight and P.W. 1- Shivkumar claimed to have been running fast
to save his life for about seven minutes. His tall claim about being
an eye witness in the dead night hours while running for his life has
to be rejected. His further claim that the injuries were caused by
sharp weapons is falsified and is in contradiction with the medical
evidence which shows no injuries caused by any sharp weapon.
(iv) The version of P.W. 1- Shivkumar is clearly
falsified since there are only six injuries on the person of the
deceased as per post mortem report. It is difficult to believe that
when 12 accused persons had assaulted by various weapons for quite
sometime, there would be only six injuries.
(v) The testimony of P.W. 1 – Shivkumar does not find
corroboration anywhere and there is no explanation whatsoever tendered
by the prosecution as to why his other relatives who were the
witnesses, according to him, as mentioned in F.I.Rs. (Exh. 39 and 40)
were not examined before the Court.
(vi) The accused persons who are said to have only
abused cannot be said to be the members of unlawful assembly and
therefore, the conviction of all accused persons recorded by the trial
Court in both the session trials is illegal, contrary to law and at
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any rate the Courts below ought to have extended benefit of doubt to
the accused persons. The learned Counsel for the appellants,
therefore, prayed for acquittal.
4. Per contra, learned A.P.P. for the respondent State in all
appeals opposed the criminal appeals filed by the appellants and
argued that it is not necessary to reject the testimony of sole eye
witness P.W.1 – Shivkumar merely because he happens to be interested
witness or the brother of the deceased. The Courts below have in both
session trials carefully assessed the evidence of P.W. 1 Shivkumar
and have come to conclusion that P.W. 1 Shivkumar was reliable,
trustworthy and natural witness. There is no reason why his testimony
should be rejected and nor there is any reason why insistence for
corroboration of his evidence by any other witness should be made.
The Courts below have marshalled the evidence in entirety and having
found no loopholes in the evidence of prosecution have rightly
convicted the appellants in both sets of appeals. Learned A.P.P.
prayed for dismissal of all these appeals and urged this Court to
maintain the conviction of all the appellants.
CONSIDERATION :
5. We have heard learned Counsel for the parties at length and
we have also carefully perused the record and proceedings of the
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Courts below. There is no doubt in our mind that the conviction can
be based on the sole testimony of witness notwithstanding that such
witness is an interested witness or witness related to the deceased
and in this case the brother. There is no need to highlight this
aspect any more. In the instant case, however, we are required to
examine the truthfulness of the testimony of P.W. 1 Shivkumar in
accordance with law and the settled principles of law in the matter of
appreciation of evidence after marshalling the evidence. In this view
of the matter, we have decided to carefully scan the testimony of P.W.
1
Shivkumar to find out whether the prosecution has proved its case
beyond reasonable doubt and whether the conviction can be upheld.
6. It is seen from the oral report (Ex.39) that was initially
lodged by P.W. 1 Shivkumar that Shriram Wardhe and Kashinath Wardhe
(cousin)his relatives had witnessed the said earlier incident and had
saved the life of P.W. 1 Shivkumar. Similarly, Mohan Wardhe,
Subhash Ingle, Kashinath Wardhe (cousin) and Bhimrao Wardhe were the
witnesses to whom he had immediately narrated the incident of murder
on the fateful night and he had gone to lodge the report (Exh.40)
along with them to Police Station in the dead hours of night after all
of them had visited the place where the dead body was lying. The
prosecution examined P.W. 5 – Bhimrao Wardhe and an independent
witness P.W. 6 Sharafatkhan Shabbirkhan Pathan but both of them did
not support the prosecution story. Other witnesses namely, Shriram
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Wardhe, Mohan Wardhe, Subhash Ingle and Kashinath Wardhe were not
examined by the prosecution, who were important witnesses on reports
Exh.39 and 40 and even the incident of murder which was told to them
by P.W. 1 Shivkumar. No explanation is coming forth from the
prosecution as to why these witnesses were not examined by the
prosecution. It would not have been necessary for the prosecution to
examine these witnesses but it became expedient from the prosecution
to do so because we find that the evidence of P.W. 1 Shivkumar
cannot be believed as a sole testimony to the incident of murder for
the reasons which we would indicate later. It is in this background,
we find that the examination of these witnesses by the prosecution was
most essential and their non-examination is a factor which shakes the
prosecution story.
7. Upon reading of the testimony of P.W. 1 Shivkumar at the
outset, we find that according to him, it was midnight when he and
Samadhan Wardhe were coming back after lodging report to the Police
Station Bhatkuli at Bhatkuli Sayat road. When their auto rickshaw was
obstructed by the stones placed on the road, Rajesh Utane and
Jagannath Utane were on motorcycle, while other persons, who were in
the two auto rickshaws came out of the auto rickshaws with weapons.
He has not named who were the other persons. That Rajesh Utane and
Jagannath Utane had given signal to the other accused persons that
they should assault is an omission in the report (Exh.66). In
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substantive evidence he has not made clear as to signal was given to
assault whom and the manner in which signal was given. Whether signal
was given by them by shouting or by hands or by other mode of
expression is not at all stated by him. In our opinion, in respect of
Jagannath Utane and Rajesh Utane this is a very material deficiency or
lacuna with the prosecution as no other role is attributed to them. As
to the first incident under Exh.39, the presence of Jagannath Utane
and Rajesh Utane near Samaj Mandir on the platform – ‘Ota’ is also an
omission in the report (Exh.39) so also the life threat given to him
by Jagannath Utane.
In the cross-examination, he stated that even
before commencement of incident of assault on Samadhan Wardhe he and
Samadhan Wardhe started running for their life and P.W. 1 Shivkumar
was ahead of Samadhan and when Samadhan was caught, he found that
Samadhan was being assaulted by those persons following them. P.W. 1
Shivkumar was running for seven minutes for his life. It is not
difficult for us to come to the conclusion that P.W. 1 Shivkumar
must have run more than half kilometer as he had run for seven minutes
that too for saving his life, when some people were chasing him, whose
names, he has not given. He then claimed that he took shelter behind a
bush and watched the incident of murder therefrom i.e. after he
stopped running. During investigation, no attempt was made by the
Investigating Officer to locate the bush from which P.W. 1 Shivkumar
claimed to have seen the incident after he stopped running, nor there
is any whisper about it or the details about it anywhere in the spot
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panchanama or in the substantive evidence of any of the witnesses. It
is not possible for us to believe that after running for seven minutes
for more than half kilometer in the dead hours of night at 1.30 a.m.
by sitting behind the bush he had seen the entire incident of murder.
This appears to be highly improbable and all the more so because he
stated thus in his cross-examination about his eye sight.
If the figure is at long distance I cannot tell
whether it is of human or an animal. But if the figure
is nearer I can say whether it is of human or animal.
From the close figure I cannot tell whether it is of a
male or female.
8. It is then seen from his cross-examination that according to
him sharp edged weapons were used. We quote relevant portion from his
cross-examination dated 3.8.2002.
All persons were having sharp edged weapons.
Knife, sword, axe, battle axe, spear are sharp edged
weapons. It is true that by sharp edged weapons as
above the persons had assaulted my brother and committed
his murder.
9. From the above evidence it is clear that P.W. 1 Shivkumar
claimed that sharp edged weapons described by him were used by the
assailants. However, we find from the evidence of P.W. 9- Dr. Iqbal
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Yusuf Baig that following injures were found.
(1) Fracture tobea and fabula of right leg lower 1/3
knee joint, femur shaft middle.
(2) Left leg : fracture tobea fabula upper 1/3 with
lacerated wound on middle aspect of leg upper 1/3, size ½ cm. x ½ cm.
deep muscle. Lacerated wound on middle aspect of leg on middle 1/3,
size ½ cm x ½ cm. deep muscle.
(3) Lacerated wound on middle toe tip, size 1 cm. x ½
cm. deep muscle.
(4) Right upper limb forearm – Fracture radius ulna
(5)
lower 1/3, Fracture radius ulna upper 1/3.
Right upper limb arm : Fracture humours middle 1/3.
(6) Right forearm : Three punctured wound on posterior
aspect, size – ½ c.m. x ½ cm. deep muscle.
(7) Abrasions over right elbow posteriorly, right cheek
right infra orbitral region, left lateral aspect of forehead.
10. None of the above injuries can be caused by sharp cutting
weapons as claimed by him.
11. The cumulative effect of all the above circumstances lead us
to believe that the evidence of P.W. 1 Shivkumar is not truthful and
it will be risky to base conviction of the appellants on the sole or
singular testimony of P.W. 1 Shivkumar. In addition, the
prosecution did not at all recover any of the weapons from any of the
accused persons.
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12. The net result of the above discussion is that it is not
possible for us to confirm the conviction of the appellants solely on
the testimony of P.W. 1 Shivkumar in view of the serious
discrepancies and truthfulness about his evidence. The prosecution did
not rely upon any other evidence except the sole testimony of P.W. 1
Shivkumar. We, therefore, find that benefit of doubt will have to be
extended to the accused persons in accordance with the settled legal
principles. For the above reasons, therefore, we make the following
order.
O R D E R
(i) Criminal Appeal Nos.229/2003, 164/2003, 204/2003,
244/2003 and 614/2008 are allowed.
(ii) All accused persons in Criminal Appeal
Nos.229/2003, 164/2003, 204/2003, 244/2003 and 614/2008 are acquitted.
(iii) Accused persons, who are in jail, be set at liberty
forthwith.
(iv) Bail bonds of accused persons, who are on bail,
hereby stand cancelled.
Judge Judge
ssw
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