{"id":23157,"date":"2010-09-24T00:00:00","date_gmt":"2010-09-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ratu-ratnakar-shamrao-kale-vs-the-state-of-maharashra-on-24-september-2010"},"modified":"2016-01-29T15:47:30","modified_gmt":"2016-01-29T10:17:30","slug":"ratu-ratnakar-shamrao-kale-vs-the-state-of-maharashra-on-24-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ratu-ratnakar-shamrao-kale-vs-the-state-of-maharashra-on-24-september-2010","title":{"rendered":"Ratu @ Ratnakar Shamrao Kale vs The State Of Maharashra. : on 24 September, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ratu @ Ratnakar Shamrao Kale vs The State Of Maharashra. : on 24 September, 2010<\/div>\n
Bench: D.D. Sinha, A. R. Joshi<\/div>\n
                                      1                                 APEAL936.03\n\n\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                            \n                            APPELLATE SIDE\n\n\n\n\n                                                    \n                    CRIMINAL APPEAL NO.936 OF 2003\n\n    1. Ratu @ Ratnakar Shamrao Kale,                  )\n       age\/adult.                                     )\n\n\n\n\n                                                   \n    2. Satu @ Satish Shamrao Kale,                    )\n       age\/adult.\n\n\n\n\n                                         \n    3. Shankar Bhimrao Kale,                          )\n       age\/adult.          ig                         )\n\n    4. Maruti Soma Shinde, age\/adult,                 )\n                         \n    5. Sahadeo Kerappa Kale,                          )\n       age\/adult.                                     )\n\n    6. Dharma Nagnath Hake (Patil),                   )\n      \n\n\n       age\/adult.\n   \n\n\n\n    7. Shamrao Bhayaji Kale,                          )\n       age\/adult.                                     )\n\n    8. Tanaji Shamrao Kale,                           )\n\n\n\n\n\n       age\/adult,                                     )\n       All R\/o. Daingadewadi, Tal\/Mohol,              )\n       District : Solapur.                            ): Appellants\/\n                                                         Orig. Accused\n             V\/s.\n\n\n\n\n\n    The State of Maharashra.                           : Respondent\n\n                               ....\n\n    Mrs.Sadhana S. Jadhav for the appellants.\n\n    Mr.S.S.Pednekar, Addl. Public Prosecutor for the State.\n                             ....\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 16:28:56 :::\n                                         2                                    APEAL936.03\n\n\n                                      WITH\n\n\n\n\n                                                                                 \n                   CRIMINAL APPEAL NO.89 OF 2004\n\n    The State of Maharashtra                                   : Appellant\n\n\n\n\n                                                         \n                                                           (Orig. Complainant)\n           V\/s.\n\n    Bhaiyaji Bhimrao Kale                                       : Respondent\n\n\n\n\n                                                        \n                                                             (Orig.Accused No.4)\n                               ...\n\n    Mr.S.S.Pednekar, Addl. Public Prosecutor for the appellant.\n\n\n\n\n                                           \n    Mrs.Sadhana S. Jadhav for the respondent.\n                           ig ....\n\n                                 CORAM : D.D. SINHA & A.R. JOSHI, JJ.\n                         \n                                     Date of Reserving      ) : 08.09.2010.\n                                     the Judgement.         )\n      \n\n\n                                  Date of Pronouncing ) : 24.09.2010.\n                                  the Judgement.      )\n   \n\n\n\n    JUDGEMENT (Per D.D.Sinha, J.)\n<\/pre>\n
              Heard Mrs.Jadhav, the learned counsel for the appellants and<\/p>\n
    Mr.Pednekar, the learned Addl. Public Prosecutor for the State.\n<\/p>\n
    2.     Criminal Appeal No.936 of 2003 is directed against the judgement<\/p>\n
    and order dated 15.7.2003 passed by the V Addl. Sessions Judge, Solapur,<\/p>\n
    in Sessions Case no.257\/2001 whereby the appellants came to be<\/p>\n
    convicted for the offence punishable under section 302 read with section<\/p>\n
    149 of the Indian Penal Code and sentenced to suffer R.I. for life and<\/p>\n
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\n                                       3                                   APEAL936.03<\/p>\n
    were also directed to pay a fine of Rs.500\/- each, in default to suffer S.I.\n<\/p>\n
    for one month. Criminal Appeal No.89 of 2004 has been filed by the<\/p>\n
    State challenging the acquittal of original accused no.4 which has been<\/p>\n
    admitted and ordered to be heard along with Criminal Appeal No.936 of<\/p>\n
    2003. As both these appeals arise out of the same incident, they were<\/p>\n
    head together and are being disposed of by this common judgement.\n<\/p>\n
    3.       The prosecution case in a nut-shell is as follows:-\n<\/p>\n
              The complainant Dadarao Machindra Shinde (P.W.1) and the<\/p>\n
    appellants are residents of village Daingadewadi, taluka Mohol, dist.\n<\/p>\n
    Solapur. P.W.1 is the son of Tarabai (P.W.5). Deceased Murlidhar was<\/p>\n
    the real uncle of P.W.1 and brother-in-law of P.W.5. Original accused no.\n<\/p>\n
    8 Shamrao Bhayaji Kale has three sons Ratu, Satu and Tanaji. They were<\/p>\n
    original accused nos.1, 2 9. Original accused no.3 Shankar and original<\/p>\n
    accused no.4 Bhaiyaji, who has been acquitted and against whom<\/p>\n
    Criminal Appeal No.89 of 2004 has been preferred by the State<\/p>\n
    challenging his acquittal, are real brothers. Original accused no.7 Dharma<\/p>\n
    is the grand-son of accused Shamrao. Original accused no.5 Maruti was<\/p>\n
    working with Shamrao Kale at the relevant time. All the accused are<\/p>\n
    related to each other.\n<\/p>\n
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                                      4                                   APEAL936.03<\/p>\n
    4.       It is the case of the prosecution that the complainant Dadarao was<\/p>\n
    residing along with his parents and brother at village Daingadewadi. At<\/p>\n
    the time of the incident, he was studying in Standard XI.                     The<\/p>\n
    complainant’s father owned five acres of land in village Daingadewadi.\n<\/p>\n
    Deceased Murlidhar Keru Shinde was the real uncle of P.W.1 Dadarao<\/p>\n
    and was residing separately. Soma Keru Shinde is the step uncle of P.W.1<\/p>\n
    and was also residing separately. It was alleged by the prosecution that<\/p>\n
    partition had taken place in between the father of the complainant and his<\/p>\n
    uncle in respect of the agricultural land and two-and-a-half acres of land<\/p>\n
    came to the share of the father of the complainant. The deceased was the<\/p>\n
    step uncle of P.W.1 and the land which came to his share was in<\/p>\n
    possession of Soma Shinde, who was cultivating the said land at the<\/p>\n
    relevant time.\n<\/p>\n
    5.       It is the case of the prosecution that the motive behind the<\/p>\n
    commission of the offence was that when the land was jointly owned by<\/p>\n
    all the members of the joint family was irrigated land and water was<\/p>\n
    drawn from the nearby river through a pipeline.           Hanmant was the<\/p>\n
    Manager of the Joint Hindu Family. Hanmant had obtained loan and<\/p>\n
    installed electric motor pump and pipeline for drawing water from the<\/p>\n
    river.   The deceased was collecting amount from the father of the<\/p>\n
    complainant, real uncle, step-uncle for paying the instalments of the loan<\/p>\n
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\n                                       5                                  APEAL936.03<\/p>\n
    obtained from the Bank for installation of electric motor pump and<\/p>\n
    pipeline. The father of the complainant was also paying some amount to<\/p>\n
    the deceased. It is the case of the prosecution that the accused restrained<\/p>\n
    the complainant from taking water. Hence, a dispute arose in between the<\/p>\n
    accused and the complainant. A complaint was also lodged at the police<\/p>\n
    station on an earlier occasion. Maruti Shinde, Ratu Kale and Hake Patil<\/p>\n
    assaulted the father of the complainant and his cousin Sidheshwar on an<\/p>\n
    earlier occasion. A case was registered against them at the police station.\n<\/p>\n
    Preventive action against the accused was initiated by the competent<\/p>\n
    authority. The case of the prosecution demonstrates that the relations<\/p>\n
    between the family of the accused and the deceased and his family were<\/p>\n
    inimical.\n<\/p>\n
    6.          The incident in question had taken place on 18.7.2001 at about<\/p>\n
    10.15 to 10.30 a.m. It is the case of the prosecution that P.W.5 Tarabai,<\/p>\n
    the mother of the complainant was fetching water from the hand-pump.\n<\/p>\n
    After sometime, the she made hue and cry and started proceeding towards<\/p>\n
    the wasti of the complainant. The complainant came out of his house, at<\/p>\n
    that time Tarabai was proceeding towards the house of deceased<\/p>\n
    Murlidhar and was shouting loudly that the accused Ratu Kale, Satu Kale,<\/p>\n
    Shankar Kale, Bhaiyaji Kale, Maruti Shinde, Sahadeo Kale and Dharma<\/p>\n
    Hake were assaulting Murlidhar with swords.             P.W.5 Tarabai was<\/p>\n
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\n                                      6                                   APEAL936.03<\/p>\n
    proceeding towards the house of Murlidhar by the side of the hill. The<\/p>\n
    complainant went upto the hill and saw that the accused Ratu, Satu,<\/p>\n
    Shankar, Bhaiyaji, Maruti, Sahadeo and Dharma were assaulting<\/p>\n
    Murlidhar with swords which were in their hands. The complainant<\/p>\n
    requested them not to assault his uncle but the assailants rushed towards<\/p>\n
    him and also assaulted the complainant with swords. It is the case of the<\/p>\n
    prosecution that one Bajarang who was grazing the cattle had also seen<\/p>\n
    the incident from an open space. The accused gave blows with the<\/p>\n
    swords on the knees, hands and legs of deceased Murlidhar. The accused<\/p>\n
    Shamrao was standing near the spot of the incident, having stick in his<\/p>\n
    hand and he was also instigating the accused to assault Murlidhar.\n<\/p>\n
    Bajarang also tried to intervene in order to pacify the situation, however,<\/p>\n
    accused Satu, Maruti and Bhaiyaji rushed towards him and threatened<\/p>\n
    him. Therefore, he did not intervene and came back. It is the case of the<\/p>\n
    prosecution that when the assault was going on, accused no.9 Tanaji and<\/p>\n
    police constable came to the spot of the incident. The accused Tanaji took<\/p>\n
    a sword from the hand of the accused Ratu and starting giving blows with<\/p>\n
    the said sword on the right knee of the deceased Murlidhar.                   The<\/p>\n
    complainant requested not to assault his uncle. However, the accused did<\/p>\n
    not pay any heed to the request made by the complainant. It is the case of<\/p>\n
    the prosecution that the complainant, thereafter, proceeded towards the<\/p>\n
    house of the Sarpanch and on the way narrated the incident to the wife of<\/p>\n
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\n                                      7                                  APEAL936.03<\/p>\n
    the Sarpanch.    The Sarpanch advised the complainant to lodge a<\/p>\n
    complaint at the police station. The complainant went to Mohol police<\/p>\n
    station and lodged a complaint against the accused.\n<\/p>\n
    7.       On receipt of the complaint, Police Inspector went to the spot of<\/p>\n
    the incident, prepared spot panchanama, inquest panchanama, seized the<\/p>\n
    clothes of the deceased, recorded statements of witnesses, arrested the<\/p>\n
    accused, seized clothes of the accused Bhaiyaji, Ratu, Dharma and Satu.\n<\/p>\n
    The Investigating Officer also seized one towel, one pair of chapel and<\/p>\n
    collected soil mixed with blood, one white cap, one stone having<\/p>\n
    bloodstains from the spot of the incident, sealed the articles in the<\/p>\n
    presence of the panchas and prepared panchanama. At the instance of the<\/p>\n
    accused Sahadeo, the Investigating Officer has seized one sword having<\/p>\n
    bloodstains, one shirt and one brownish pant. At the instance of the<\/p>\n
    accused Maruti, the Investigating Officer seized one sword, one white<\/p>\n
    tericot shirt and one pyjama and prepared panchanama. The Investigating<\/p>\n
    Officer recorded memorandum statement of Shankar and at his instance<\/p>\n
    one sickle was discovered. The Investigating Officer also recorded the<\/p>\n
    statement of the accused Ratu and pursuant to which sattur (chopper) was<\/p>\n
    recovered. A motorcycle (bullet) was also seized by the Investigating<\/p>\n
    Officer. The dead-body of the deceased Murlidhar was sent to the Rural<\/p>\n
    Hospital for post-mortem examination. The post-mortem report shows<\/p>\n
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\n                                      8                                   APEAL936.03<\/p>\n
    that the deceased received as many as 19 injuries, most of which were<\/p>\n
    incised wounds.      The Investigating Officer on completion of the<\/p>\n
    investigation filed a charge-sheet. The charge was framed against the<\/p>\n
    appellants which was explained to them by the Court. All the accused<\/p>\n
    pleaded not guilty and claimed to tried and their defence was of total<\/p>\n
    denial, except accused no.4 who has taken the defence of alibi.\n<\/p>\n
    8.     The learned counsel for the appellants has submitted that the case<\/p>\n
    of the prosecution is that on 18.7.2001 at about 10.15 to 10.30 a.m.,<\/p>\n
    Dadaro heard the shouts of his mother who was saying that his uncle was<\/p>\n
    being assaulted by the accused Ratu Kale, Satu Kale, Shankar Kale,<\/p>\n
    Bhaiyaji Kale, Maruri Shinde, Sahadeo Kale and Dharma Hake and,<\/p>\n
    therefore, P.W.1 proceeded to the spot where his uncle was being<\/p>\n
    assaulted. It is submitted that according to Tarabai (P.W.5), she has seen<\/p>\n
    the accused persons encircled deceased Murlidhar while assaulting him,<\/p>\n
    however, failed to mention this fact in her police statement and, therefore,<\/p>\n
    it is contended that this material omission creates suspicion about the<\/p>\n
    genuineness of the prosecution case disclosed by this witness in respect of<\/p>\n
    the alleged assault on the deceased by the appellants.\n<\/p>\n
    9.     The learned counsel for the appellants has submitted that the<\/p>\n
    incident, for the first time, was alleged to have been noticed by Tarabai<\/p>\n
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\n                                      9                                   APEAL936.03<\/p>\n
    (P.W.5), who has named only six persons as the assailants, whereas<\/p>\n
    according to P.W.1, there were seven accused who assaulted the deceased.\n<\/p>\n
    In the instant case, trial Court accepted the plea of alibi taken by the<\/p>\n
    original accused no.4 and the trial Court acquitted him. The inconsistent<\/p>\n
    version given by the witness about the number of the accused who<\/p>\n
    assaulted the deceased clearly shows the tendency of witnesses of false<\/p>\n
    implication and, therefore, their evidence needs to be scrutinised with due<\/p>\n
    care and caution.\n<\/p>\n
    10.   The learned counsel for the appellants has submitted that according<\/p>\n
    to Tarabai (P.W.5), the accused were assaulting Murlidhar behind the<\/p>\n
    house of Bhayyaji Vhanmane. However, she has not stated the said fact<\/p>\n
    in her statement under section 161 of the Cr.P.C. It is contended that the<\/p>\n
    said omission was a material omission which was proved by the defence.\n<\/p>\n
    It is contended that another important omission in the testimony of P.W.5<\/p>\n
    is in respect of giving of information about the incident by P.W.5 to her<\/p>\n
    son that the group of Kale family was assaulting his uncle.                  It is<\/p>\n
    contended that these material omissions render the testimony of this<\/p>\n
    witness suspicious and untrustworthy.\n<\/p>\n
    11.     The counsel for the appellants has contended that the original<\/p>\n
    accused no.9 was not present in the village and, therefore, he was not a<\/p>\n
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\n                                      10                                    APEAL936.03<\/p>\n
    member of the unlawful assembly. The rule attributed to the original<\/p>\n
    accused no.9 is a false and concocted story introduced by the prosecution.\n<\/p>\n
    It is contended that the deceased was a history sheeter and the possibility<\/p>\n
    of being assaulted by his rivals from the village cannot be ruled out.\n<\/p>\n
    12.    The learned counsel for the appellants further submitted that<\/p>\n
    according to P.W.1, the dead body was lying on the ascent of the hill,<\/p>\n
    however, the spot, as per the prosecution, was behind the house of<\/p>\n
    Bhayyaji. There is nothing on record to show as to how the dead-body of<\/p>\n
    the deceased was found on the ascent of the hill. There is no evidence to<\/p>\n
    show that the dead-body was dragged from the place of the incident. It is<\/p>\n
    contended that the spot panchanama shows that the cap stained with blood<\/p>\n
    was seen hanging on a tree at a distance of 18 feet from the spot where<\/p>\n
    the dead body was lying.       However, there is no ocular evidence to<\/p>\n
    corroborate this circumstance that the deceased was assaulted on the way.\n<\/p>\n
    In any eventuality, if the assault would have been made at the place as<\/p>\n
    claimed by the prosecution, the deceased would have collapsed on the<\/p>\n
    said spot itself and blood ought to have been found on the same spot. It is<\/p>\n
    submitted that at the distance of 20 feet from where the dead body was<\/p>\n
    found, a towel belonging to the deceased was hanging on a babul tree. It<\/p>\n
    is contended that the spot panchanama has been proved by P.W.4 which<\/p>\n
    shows that the house of the complainant was at a long distance from the<\/p>\n
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\n                                       11                                    APEAL936.03<\/p>\n
    spot of the incident. P.W.4 has admitted that the spot of the incident was<\/p>\n
    at the bottom of the hill. It is submitted that the case of the prosecution<\/p>\n
    insofar as the spot of the incident is concerned, there are conflicting<\/p>\n
    versions forthcoming which also create doubt whether the sole eye-\n<\/p>\n
    witness examined in the present case had really witnessed the incident as<\/p>\n
    claimed by her, in any case, which creates doubt about the case of the<\/p>\n
    prosecution.\n<\/p>\n
    13.<\/p>\n
            The learned counsel for the appellants has submitted that the post-\n<\/p>\n
    mortem notes shows that rigor mortis was set in, hence the deceased may<\/p>\n
    have taken meals three hours prior to his death as there was partly<\/p>\n
    digested food particles in the stomach and small intestine and that the<\/p>\n
    large intestine was empty as the deceased might have passed stool before<\/p>\n
    death, and it requires 10 to 12 hours for formation of stool from the time<\/p>\n
    of taking food. The counsel for the appellants, therefore, contended that<\/p>\n
    the prosecution has not established the time of death of the deceased. It is<\/p>\n
    submitted that the prosecution has to prove the time of death which<\/p>\n
    cannot be presumed.       It is further submitted that the Doctor who<\/p>\n
    conducted the post-mortem examination could not give the probable time<\/p>\n
    of death of the deceased and, therefore, in the instant case, the prosecution<\/p>\n
    failed to establish the time of death of the deceased. It is submitted that in<\/p>\n
    the instant case, the time of the incident as well as the time of death of the<\/p>\n
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\n                                      12                                    APEAL936.03<\/p>\n
    deceased mentioned in the substantive evidence of the prosecution does<\/p>\n
    not tally with the postmortem notes which clearly demonstrates that the<\/p>\n
    prosecution has failed to prove at what point of time Murlidhar died. The<\/p>\n
    tenor of the medical evidence would show that the deceased had died a<\/p>\n
    homicidal death in the early hours on 18.7.2001 and the dead body was<\/p>\n
    noticed at about 10.00 a.m. and, therefore, the entire prosecution case is<\/p>\n
    fabricated, untrustworthy and, therefore, cannot be believed.\n<\/p>\n
    14.<\/p>\n
             The learned counsel for the appellants placed reliance on the<\/p>\n
    decision of the apex Court in the case of Gambhir                 v.     State of<\/p>\n
    Maharashtra (AIR<\/a> 1982 S.C. 1157) and Bhagwandas v. State of Haryana<\/p>\n
    (AIR 1996 SC 2928). The learned counsel for the appellants further<\/p>\n
    contended that it is the case of the prosecution that all the accused persons<\/p>\n
    were armed with lethal weapons. However, the discovery was of only<\/p>\n
    four weapons i.e. sattur at the instance of the accused no.1, sickle at the<\/p>\n
    instance of the accused no.3, sword at the instance of the accused no.5<\/p>\n
    and another sword at the instance of original accused no.6.                   It is<\/p>\n
    contended that blood which was found on sattur and sickle was of the<\/p>\n
    same blood group which was of the deceased and these weapons were<\/p>\n
    recovered at the instance of the original accused nos.3 and 1, respectively.\n<\/p>\n
    It is contended that the deceased also suffered fracture which would show<\/p>\n
    that sword was not the only weapon which was used and the case of the<\/p>\n
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\n                                      13                                   APEAL936.03<\/p>\n
    prosecution does not attribute use of any other weapon than sword in the<\/p>\n
    alleged assault which also creates doubt about the version of the eye-\n<\/p>\n
    witnesses.\n<\/p>\n
    15.     The learned counsel or the appellants alternatively contended that<\/p>\n
    the evidence of the prosecution, even if accepted, would prove the offence<\/p>\n
    punishable under section 302 read with 34 of the I.P.C. only respect of the<\/p>\n
    original accused nos.1 & 3 and the order of conviction in respect of the<\/p>\n
    other accused deserves to be set aside.\n<\/p>\n
    16.     The learned Addl. Public Prosecutor has submitted that in the<\/p>\n
    present case, though the prosecution has examined a number of witnesses,<\/p>\n
    the material evidence is that of P.Ws.1, 2 and 5. It is submitted that P.Ws.\n<\/p>\n
    1, 2 and 5 are eye-witnesses and their evidence is corroborated by the<\/p>\n
    medical evidence of Dr.Meena Mundada (P.W.8). It is further submitted<\/p>\n
    that the evidence of P.Ws.1, 2 and 5 is also corroborated by other<\/p>\n
    circumstantial evidence such as spot panchanama proved by Manik (P.W.\n<\/p>\n
    4). The evidence of P.W.4 shows that the spot of the incident was on the<\/p>\n
    slope of the hill behind the house of Bhayyaji. The evidence of the panch<\/p>\n
    is corroborated by the evidence of P.W.3, the panch witness examined by<\/p>\n
    the prosecution for proving the inquest panchanama. The Addl. Public<\/p>\n
    Prosecutor has submitted that the evidence of Dadarao is cogent and<\/p>\n
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\n                                      14                                    APEAL936.03<\/p>\n
    reliable. He was present at the time of the incident and saw that the<\/p>\n
    accused Ratu Kale, Satu Kale, Shankar Kale, Bhaiyaji Kale, Maruti<\/p>\n
    Shinde, Sahadeo Kale and Dharma Hake were assaulting Murlidhar by<\/p>\n
    swords and inflicted injuries on his shoulder, both the wrists and knees.\n<\/p>\n
    The complainant saw the incident from 30 feet and immediately thereafter<\/p>\n
    went to the police station and narrated the incident to the police. This<\/p>\n
    witness has given the names of all the assailants to the police.\n<\/p>\n
    17.<\/p>\n
              The learned Addl. Public Prosecutor has further contended that<\/p>\n
    the fact of the deceased dying a homicidal death has not been challenged<\/p>\n
    by the defence. The prosecution has examined Dr.Meena Mundada (P.W.\n<\/p>\n
    8) who has performed the post-mortem examination on the dead body of<\/p>\n
    Murlidhar and noticed injuries mentioned in paragraphs 17 and 19 of the<\/p>\n
    post-mortem notes and opined that all the injuries were anti-mortem. The<\/p>\n
    Doctor has opined that the cause of death was “due to hemorrhagic shock<\/p>\n
    due to head injury and multiple fractures of bones”. The Medical Officer<\/p>\n
    has also opined that the injuries on the person of the deceased can be<\/p>\n
    caused by sharp edged weapons. The Doctor gave her opinion that all the<\/p>\n
    injuries cumulatively were sufficient in the ordinary course of nature to<\/p>\n
    cause death of Murlidhar. The Medical Officer has also expressed that<\/p>\n
    the injuries sustained by Murlidhar are possible by swords (articles 27 and<\/p>\n
    30).\n<\/p>\n
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                                     15                                   APEAL936.03<\/p>\n
    18.      The learned Addl. Public Prosecutor has contended that the<\/p>\n
    prosecution in the present case has relied upon the direct evidence of<\/p>\n
    P.Ws.1, 2 and 5 as well as the circumstantial evidence i.e. post-mortem<\/p>\n
    notes, opinion of the Medical Officer, inquest panchanama (exh.28), spot<\/p>\n
    panchanama (exh.30) and recovery panchanama. It is submitted that<\/p>\n
    though the panch witness in respect of arrest panchanama and seizure of<\/p>\n
    the clothes of the accused turned hostile, the recovery panchanama and<\/p>\n
    arrest panchanama of the accused are duly proved by the Investigating<\/p>\n
    Officer P.W.12 Mr.Sawant.\n<\/p>\n
    19.      The learned Addl. Public Prosecutor further submitted that the<\/p>\n
    accused no.1 was working in S.R.P. Office and was absent from duty on<\/p>\n
    the date of the incident. In order to prove the said fact, the prosecution<\/p>\n
    has examined P.W.9 Namdhari (A.S.I.), who has stated that the accused<\/p>\n
    Ratu alias Ratnakar Kale was absent from duty from 25.12.2000.\n<\/p>\n
    20.     The learned Addl. Public Prosecutor has further contended that all<\/p>\n
    the accused are related to each other, including the deceased Murlidhar<\/p>\n
    and the prosecution evidence on record would show that relations<\/p>\n
    between them were not cordial. On the other hand, the complaints were<\/p>\n
    lodged against each other in the past. It is contended that in the instant<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>
\n                                      16                                    APEAL936.03<\/p>\n
    case, the complainant has mentioned the names of the appellants in the<\/p>\n
    First Information Report which was lodged almost immediately after the<\/p>\n
    incident.\n<\/p>\n
    21.     The learned Addl. Public Prosecutor has contended that P.W.1<\/p>\n
    Dadarao Shinde, P.W.2 Bajarang and P.W.5 Tarabai are related to the<\/p>\n
    deceased, however, their testimony cannot be branded as testimony of<\/p>\n
    interested witnesses only on the ground of relationship. It is submitted<\/p>\n
    that the testimony of these witnesses is free from material omission and<\/p>\n
    contradiction and inspires confidence. It is submitted that their evidence<\/p>\n
    is also corroborated by the medical evidence as well as other<\/p>\n
    circumstances brought on record by the prosecution and, therefore, the<\/p>\n
    evidence of these witnesses is trustworthy.       It is contended that the<\/p>\n
    contention canvassed that the complainant is a chance witness is<\/p>\n
    unfounded. The complainant has admitted before the Court that at the<\/p>\n
    relevant time, he was studying in Standard XI and the time of his College<\/p>\n
    was from 7.30 to 11.30 a.m. He has also admitted that on the date of the<\/p>\n
    incident, he has attended his College, however, he attended only one<\/p>\n
    lecture and left the College early on that date. It is pertinent to note that<\/p>\n
    the presence of the complainant on the spot has been mentioned by P.W.2<\/p>\n
    and P.W.5.\n<\/p>\n
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                                       17                                  APEAL936.03<\/p>\n
    22.      The learned Addl. Public Prosecutor has further submitted that<\/p>\n
    the contention canvassed by the defence that Murlidhar may have died in<\/p>\n
    the night of 17.7.2001 and the prosecution failed to establish the time of<\/p>\n
    death of the deceased, it is contended that in India, rigor mortis starts<\/p>\n
    within two\/three hours after the death and the factors which influence<\/p>\n
    rigor mortis are the age and condition of the body, mode of the persons<\/p>\n
    before death, surroundings, considerable seasonal variations in the time of<\/p>\n
    on set and duration of rigor mortis. It is submitted that heat coagulates<\/p>\n
    and albuminous materials of the muscles and causes stiffening                  and<\/p>\n
    contraction to a greater degree than that seen in rigor mortis. The speed<\/p>\n
    of on set of rigor mortis is very variable and depends upon a number of<\/p>\n
    factors. It is submitted that on set of rigor mortis throughout the body<\/p>\n
    would vary depending on the above referred factors, however, usually it<\/p>\n
    takes 12 to 24 hours. It is submitted that in warm climate of India, rigor<\/p>\n
    mortis may commence in an hour or two and begins to disappear within<\/p>\n
    18 to 24 hours. With such great variation in respect of on set and duration<\/p>\n
    of rigor mortis, it is not possible to pin point the exact time of death,<\/p>\n
    though the time of death will have to be considered, based on these<\/p>\n
    factors by the Medical Officer.\n<\/p>\n
    23.      The learned Addl. Public Prosecutor further contended that apart<\/p>\n
    from the temperature of environment, the speed of on set of rigor mortis<\/p>\n
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\n                                     18                                    APEAL936.03<\/p>\n
    is affected by the mode of dead before his\/her death. Where violent<\/p>\n
    activity has taken place immediately before death, rigor mortis comes on<\/p>\n
    rapidly. The learned Addl. Public Prosecutor submitted that in the instant<\/p>\n
    case, the Medical Officer has opined that there as an attempt on the part<\/p>\n
    of the deceased to save himself and, therefore, in a case of assault and if<\/p>\n
    the deceased was under emotional stress prior to death, the rigor mortis<\/p>\n
    could start immediately and it may be well marked within six hours after<\/p>\n
    the death. The Medical Officer has also opined that if the patient was in<\/p>\n
    emotional stress, the rigor mortis may start within six hours after the<\/p>\n
    death. It is submitted that taking into consideration the various factors,<\/p>\n
    the opinion of the Medical Officer corroborates the time of death of the<\/p>\n
    deceased proved by the prosecution. It is contended that there was blood<\/p>\n
    on the clothes of the accused which were seized by the police vide<\/p>\n
    panchanama (exh.61 to 64). The finding of human blood on the weapons<\/p>\n
    and the clothes of the accused lends corroboration to the testimony of<\/p>\n
    P.Ws.1, 2 and 5. The learned Addl. Public Prosecutor has submitted that<\/p>\n
    the First Information Report lodged by P.W.2 Bajarang shows that<\/p>\n
    accused Shamrao Kale was instigating the accused to assault deceased<\/p>\n
    Murlidhar. The other accused were having swords in their hands and<\/p>\n
    assaulted deceased Murlidhar by swords. The contents of First<\/p>\n
    Information Report (exh.25) are corroborated by the testimony of P.W.2<\/p>\n
    as well as other eye-witnesses, coupled with the fact of recovery of<\/p>\n
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\n                                     19                                   APEAL936.03<\/p>\n
    weapons at the instance of accused Ratu and Satu were having blood<\/p>\n
    group of AB. The clothes of the accused Maruti were stained with blood<\/p>\n
    group of AB clearly demonstrates that the common object of unlawful<\/p>\n
    assembly was to commit the murder of deceased Murlidhar. The evidence<\/p>\n
    of the eye-witnesses is cogent, trustworthy, and is also corroborated by<\/p>\n
    medical evidence. Hence, the appeal suffers from lack of merit and liable<\/p>\n
    to be dismissed.\n<\/p>\n
    24.<\/p>\n
             We have given our anxious thoughts to the various contentions<\/p>\n
    canvassed by the learned counsel for the appellants as well as the learned<\/p>\n
    Addl. Public Prosecutor for the State and also carefully scrutinised the<\/p>\n
    evidence adduced by the prosecution. In the instant case, though the<\/p>\n
    prosecution has examined a number of witnesses, the material evidence is<\/p>\n
    that of eye-witnesses such as Dadarao Shine (P.W.1), Bajarang<\/p>\n
    Dhayingade (P.W.2), Tarabai Shinde (P.W.5) as well as the medical<\/p>\n
    evidence of Dr.Meena Mundada (P.W.8). There are other circumstances<\/p>\n
    brought on record by the prosecution to prove the charge against the<\/p>\n
    appellants.\n<\/p>\n
    25.      Dadarao Shinde (P.W.1) in his examination-in-chief has stated<\/p>\n
    that the incident in question had taken place on 18.7.2001 at about 10.15<\/p>\n
    a.m. to 10.30 a.m. He was present in his house and heard shouts of his<\/p>\n
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\n                                      20                                   APEAL936.03<\/p>\n
    mother Tarabai (P.W.5). His mother was shouting loudly that the accused<\/p>\n
    Ratu Kale, Satu Kale, Shankar Kale, Bhaiyaji Kale, Maruti Shinde,<\/p>\n
    Sahadeo Kale and Dharma Hake were beating his uncle. This witness<\/p>\n
    specifically stated that he proceeded towards the spot where the assault<\/p>\n
    was going on his uncle. He witnessed the incident from 30 feet. He has<\/p>\n
    categorically stated that all the accused were giving blows with the<\/p>\n
    swords on the person of his uncle. He has also mentioned in his evidence<\/p>\n
    in chief that accused Ratu Kale, Satu Kale, Shankar Kale, Bhaiyaji Kale,<\/p>\n
    Maruti Shinde, Sahadeo Kale and Dharma Hake assaulted his uncle with<\/p>\n
    swords and caused injury on his shoulder, both wrists, knees, etc. This<\/p>\n
    witness has also mentioned the presence of Tarabai (P.W.5), another eye-\n<\/p>\n
    witness. It has also come in the examination-in-chief of this witness that<\/p>\n
    when he saw the assault on his uncle, he tried to persuade the appellants<\/p>\n
    not to beat his uncle. However, the accused Ratu Kale, Dharma Hake and<\/p>\n
    Shankar Kale rushed towards him with the swords in their hands and,<\/p>\n
    therefore, this witness ran away from the spot. It is pertinent to note that<\/p>\n
    this witness has also stated about the presence of another eye-witness<\/p>\n
    Bajarang Dhaingade (P.W.2) near the spot of the incident. As per the<\/p>\n
    testimony of this witness, he has informed Bajarang who was grazing<\/p>\n
    cattle nearby about the incident and requested Bajarang to persuade the<\/p>\n
    appellants not to beat his uncle. Bajarang proceeded towards the spot and<\/p>\n
    told the appellants not to beat the uncle of P.W.1, however, the accused<\/p>\n
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\n                                       21                                    APEAL936.03<\/p>\n
    Ratu Kale, Maruti and Bhaiyaji rushed towards Bajarang armed with<\/p>\n
    swords. This witness has further deposed in his examination-in-chief that<\/p>\n
    Shamrao Kale was standing at some distance from the spot of the incident<\/p>\n
    and had a stick in his hand and was instigating the accused to beat his<\/p>\n
    uncle. The testimony of this witness further reveals that accused Tanaji<\/p>\n
    Kale came on the spot on his motorcycle (bullet), parked the vehicle,<\/p>\n
    came on the spot of the incident, told the assailants as to why they<\/p>\n
    launched weak attach on the deceased. Tanaji took a sword from the hand<\/p>\n
    of his brother Ratu Kale and he started giving blows by means of the<\/p>\n
    sword on the person of Murlidhar. P.W.1 in his examination-in-chief has<\/p>\n
    specifically stated that after seeing the assault on his uncle, he<\/p>\n
    immediately proceeded towards the house of the Sarpanch, on the way he<\/p>\n
    met the wife of the Sarpanch Vatsalabai to whom he narrated the incident.\n<\/p>\n
    He met the Sarpanch at his house and also narrated the incident to him,<\/p>\n
    who told him to inform about the incident to the police. P.W.1 thereafter,<\/p>\n
    straightaway went to the police station and lodged the First Information<\/p>\n
    Report.\n<\/p>\n
    26.       In the cross-examination of this witness, this witness has admitted<\/p>\n
    that deceased Murlidhar died on the spot in his presence. This witness<\/p>\n
    has also admitted that he went to the police station on the motorcycle and<\/p>\n
    informed the police that his uncle died on the spot. It is pertinent to note<\/p>\n
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\n                                      22                                    APEAL936.03<\/p>\n
    that in the cross-examination of this witness, this witness specifically<\/p>\n
    stated that when he had seen the incident, his uncle was lying on the<\/p>\n
    ground. He was lying on his back. The accused had encircled Murlidhar<\/p>\n
    and everybody (all the accused) assaulted his uncle with swords. This<\/p>\n
    witness also admitted in the cross-examination that he had noticed the<\/p>\n
    incident for five to seven minutes. The tenor of the cross-examination of<\/p>\n
    this witness would show that the prosecutor has not seriously disputed the<\/p>\n
    incident of assault which had taken place on 18.7.2001. The omission in<\/p>\n
    the police statement of this witness brought on record was only in respect<\/p>\n
    of the fact that, at the time of assault, the accused had encircled the<\/p>\n
    deceased. The omission is only in respect of the word “encircled” and not<\/p>\n
    in respect of material particulars pertaining to the assault committed by<\/p>\n
    the accused on the person of the deceased Murlidhar. In our view, the<\/p>\n
    said omission is not of a material nature and, therefore, does not affect the<\/p>\n
    testimony of this witness. The scrutiny of the evidence of this witness<\/p>\n
    would show that there are no material omission or contradiction in his<\/p>\n
    testimony. He has mentioned about the presence of other two witnesses<\/p>\n
    on the spot i.e. P.W.2 Bajarang and P.W.5 Tarabai. This witness has<\/p>\n
    mentioned the names of all the appellants in his First Information Report<\/p>\n
    which was lodged by this witness almost immediately after the incident of<\/p>\n
    assault had taken place. In the instant case, the First Information Report<\/p>\n
    is lodged by P.W.1 without lapse of time and, therefore, the possibility of<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>
\n                                     23                                    APEAL936.03<\/p>\n
    concoction or fabrication has been completely ruled out. Similarly, in the<\/p>\n
    First Information Report, all material particulars of the assault committed<\/p>\n
    by the appellants, including their names and the role played by them has<\/p>\n
    been mentioned by this witness. Similarly, this witness has also stated<\/p>\n
    about which weapon was used by which accused at the time of the<\/p>\n
    assault. The evidence of this witness does not suffer from any infirmity<\/p>\n
    and corroborates the material particulars of the prosecution case disclosed<\/p>\n
    by this witness in the First Information Report which was lodged almost<\/p>\n
    immediately after the incident. The evidence of this witness, in our view,<\/p>\n
    is cogent, free from material contradictions and omissions and, therefore,<\/p>\n
    trustworthy. The criticism levelled by the counsel for the appellants in<\/p>\n
    respect of the testimony of this witness, in our view, is misconceived and<\/p>\n
    unfounded.\n<\/p>\n
    27.    The evidence of Bajarang Dhaingade (P.W.2) corroborates the<\/p>\n
    testimony of P.W.1 complainant.      This witness has stated that at the<\/p>\n
    relevant time, he was grazing his cattle very close to the spot where the<\/p>\n
    incident of assault has taken place. This witness has stated that after<\/p>\n
    hearing shouts of the deceased, he went towards the spot of the incident<\/p>\n
    and saw that deceased Murlidhar was being assaulted by the accused<\/p>\n
    Ratu, Shankar, Bhaiyaji, Sahadeo, Maruti, Satu and Dharma with swords.\n<\/p>\n
    P.W.2 in his examination-in-chief has stated that while he was going<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>
\n                                         24                                    APEAL936.03<\/p>\n
    towards the spot of the incident, he met P.W.1 Dadarao, who informed<\/p>\n
    him about the death of his uncle. It has come in the evidence of this<\/p>\n
    witness that he tried to intervene in the quarrel. It has come in the<\/p>\n
    evidence of this witness that accused Tanaji Kale came on the spot on his<\/p>\n
    motorcycle (bullet), he took the sword from the hand of Ratu Kale and<\/p>\n
    started giving blows with the said sword on the person of Murlidhar. This<\/p>\n
    witness tried to persuade the appellants not to beat Murlidhar. However,<\/p>\n
    at that time, accused Satu, Shankar and Bhaiyaji rushed towards him with<\/p>\n
    swords to assault this witness and, therefore, he left the place of the<\/p>\n
    incident. The statement of this witness was recorded on the date of the<\/p>\n
    incident.\n<\/p>\n
    28.         It is pertinent to note that in cross-examination of this witness, it<\/p>\n
    has come on evidence that even after the incident, he was standing near<\/p>\n
    his cattle. The accused were on the spot for one hour and left the place<\/p>\n
    thereafter. This witness further stated in his cross-examination that he had<\/p>\n
    seen the injuries from some distance. It is no doubt true that the omission<\/p>\n
    in his police statement about the assault by accused Ratu, Satu, Shankar,<\/p>\n
    Bhaiyaji, Sahadeo, Maruti and Dharma does have some adverse impart<\/p>\n
    on the testimony of this witness. However, the same would not affect the<\/p>\n
    veracity of the testimony of other eye-witnesses P.W.1 and P.W.5 Tarabai.\n<\/p>\n
    It will be appropriate at this stage to scrutinise the evidence of Tarabai<\/p>\n
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\n                                      25                                   APEAL936.03<\/p>\n
    (P.W.5).\n<\/p>\n
    29.    Tarabai (P.W.5) in her examination-in-chief has stated that she has<\/p>\n
    seen the accused Ratu, Satu, Bhaiyaji, Dharma Hake and Maruti<\/p>\n
    encircling her brother in law (deceased Murlidhar) and assaulting him.\n<\/p>\n
    She has stated that she informed her son (P.W.1 Dadarao) that members of<\/p>\n
    the Kale family had assaulted his uncle. This witness has stated that she<\/p>\n
    has also informed the wife of the deceased who was present in the field<\/p>\n
    that members of Kale family assaulted her husband. This witness has also<\/p>\n
    informed her husband that members of Kale family assaulted deceased<\/p>\n
    Murlidhar. In view of the cross-examination of this witness, the defence<\/p>\n
    wanted to make a capital out of the omission in respect of the word<\/p>\n
    “encircled”. It is the case of this witness that at the time of assault, the<\/p>\n
    accused persons encircled the deceased and assaulted him. However, she<\/p>\n
    has omitted to mention the word “encircled” in her police statement. The<\/p>\n
    omission, in our view, is a minor one which does not affect the ocular<\/p>\n
    testimony of this witness. The other omissions are also, in our view, not<\/p>\n
    of material in nature and do not affect the veracity of the evidence of this<\/p>\n
    witness. It is pertinent to note that the evidence of this witness fully<\/p>\n
    corroborates the material particulars of the prosecution case disclosed in<\/p>\n
    the First Information report by complainant P.W.1 Dadarao as well as in<\/p>\n
    his testimony recorded before the Court.\n<\/p>\n
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                                      26                                   APEAL936.03<\/p>\n
    30.      It will be appropriate at this stage to consider the medical<\/p>\n
    evidence of Dr.Meena Mundada (P.W.8) adduced by the prosecution.\n<\/p>\n
    Dr.Meena Mundada has conducted the postmortem examination on the<\/p>\n
    body of the deceased Murlidhar and found the following external injuries<\/p>\n
    on the body of the deceased:-\n<\/p>\n
                “(1) Incised would (sic) right parietal region 4 x<\/p>\n
                     3 x 2 bone deep.\n<\/p><\/blockquote>\n
                 (2)   Incised wound over right shoulder – 5 x 1 x<\/p>\n
                        \u00bd inches.\n<\/p><\/blockquote>\n
                 (3)   Incised wound over right arm 4 \u00bd x 3 x 2
\n                       inch with fracture numerus shaft.\n<\/p><\/blockquote>\n
                 (4)   Incised would (sic) 2 x \u00bd x \u00bd inches 3 c.m.\n<\/p><\/blockquote>\n
                       above the right elbow.\n<\/p><\/blockquote>\n
                 (5)   Incised wound over right forearm 1 x 1 x \u00bd
\n                       inches.\n<\/p><\/blockquote>\n
                 (6)   Abrasion over right forearm 4 x \u00bd x \u00bd
\n                       inches – 3 c.m. above wrist joint with
\n                       fracture radius and ulna right at lower end.\n<\/p><\/blockquote>\n
                 (7)   Incised wound 3 x 2 x 1 over dorsal aspect
\n                       of the right hand with fracture of
\n                       metacarpals 2nd and 3rd.\n<\/p><\/blockquote>\n
                 (8)   Incised wound over palmar aspect of right
\n                       hand 2 x 2 inches. \u00bd cm.\n<\/p><\/blockquote>\n
                 (9)   Incised wound over palmar aspect of middle
\n                       of ring finger of right hand 2 x 2 c.m.\n<\/p><\/blockquote>\n
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                                     27                                    APEAL936.03<\/p>\n
                 (10) Incised wound over the left shoulder 5 x 2 x
\n                      1 inches and abrasion 5 x 2 inches.\n<\/p><\/blockquote>\n
                 (11) Incised wound over left forearm 4 x 1 x 1
\n                      inches with fracture of left radius and ulna<\/p>\n
                      (shaft).\n<\/p><\/blockquote>\n
                 (12) Incised wound over left hand 4 x 3 x 3
\n                      inches with fracture of wrist joint and<\/p>\n
                      fracture of metearpah asking.\n<\/p><\/blockquote>\n
                 (13) Incised wound over right thigh 4 x 2 x 2
\n                      inches with fracture femur shaft.\n<\/p><\/blockquote>\n
                 (14) Crushing over right knee and upper part of<\/p>\n
                      leg 8 x 5 x 4 inches with fracture of tibia
\n                      fibula and patela.\n<\/p><\/blockquote>\n
                 (15) Incised wound over right ankle 5 x 2 x 1
\n                      inches.\n<\/p><\/blockquote>\n
                 (16) Incised wound over right front plantarayan 6<\/p>\n
                      x 4 x 3 inches with fracture of metatarsab.\n<\/p><\/blockquote>\n
                 (17) Incised wound over left knee 2 x 2 inches
\n                      with fracture patella and upper end of tibia
\n                      fibula fracture.\n<\/p><\/blockquote>\n
                 (18) Incised wound over left thigh 4 x 2 x 1
\n                      inches.\n<\/p><\/blockquote>\n
                 (19) Incised wound over left ankle 4 x 2 x 1 c.m.”\n<\/p><\/blockquote>\n
    She has mentioned that all the above injuries were fresh and ante-mortem.\n<\/p><\/blockquote>\n
    Similarly, on internal examination, the Medical Officer has found incised<\/p>\n
    wounds over right parietal region 4 x 3 inches bone deep. There was<\/p>\n
    fracture on the right parietal bone 4 x 3 c.m. underneath the said injury.\n<\/p>\n
    The Medical Officer has also noticed that in the brain, there was presence<\/p>\n
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\n                                      28                                   APEAL936.03<\/p>\n
    of extradural haematoma and subarachannid haematoma on right parietal<\/p>\n
    region. In the stomach, there was partly digested food. In the small<\/p>\n
    intestine, there was partly digested food particles. The large intestine was<\/p>\n
    empty. The Doctor has opined that the cause of death of the deceased was<\/p>\n
    due to hemorrhagic shock due to head injury with multiple fracture of<\/p>\n
    bones. The Doctor has opined that injury no.1 in column 17 along with<\/p>\n
    injury no.1 in column 19 of the postmortem notes in ordinary course of<\/p>\n
    nature was sufficient to cause death. So far as the time of the death is<\/p>\n
    concerned, Dr.Meena Mundada has specifically stated that due to injuries<\/p>\n
    sustained by Murlidhar, there was profused bleeding and, therefore, the<\/p>\n
    condition of the body was cold.       In normal death, the rigor mortis<\/p>\n
    develops after two hours and it proceeds gradually and it fully develops<\/p>\n
    within 12 hours and continues to be there for 12 hours and, thereafter, it<\/p>\n
    disappears gradually. The Medical Officer has also explained what is<\/p>\n
    meant by normal death which means natural death due to old age or any<\/p>\n
    disease. The Medical Officer has further stated in her testimony that in<\/p>\n
    case of assault, if the patient was in emotional stress, rigor mortis starts<\/p>\n
    developing immediately and it was well marked within six hours after the<\/p>\n
    death. The postmortem lividity starts after two hours in any case and upto<\/p>\n
    six hours one can see post-mortem lividity. The Medical Officer after<\/p>\n
    taking into consideration all these factors opined that the probable time of<\/p>\n
    death was six hours approx. prior to the post-mortem examination which<\/p>\n
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\n                                      29                                    APEAL936.03<\/p>\n
    was conducted by this witness at 5.00 p.m. on 18.7.2001.\n<\/p>\n
    31.       It is no doubt true that the Medical Officer has been cross-\n<\/p>\n
    examined at length by the defence.         The Medical Officer was also<\/p>\n
    confronted on the aspect of internal injuries in view of Modi, Parekh, Cox<\/p>\n
    and Tailor Books on Medical Jurisprudence. However, the defence could<\/p>\n
    not get any material in the cross-examination of the Medical Officer in<\/p>\n
    order to hold that the medical evidence in the present case failed to<\/p>\n
    establish the time of death of deceased Murlidhar. The counsel for the<\/p>\n
    appellant though vehemently argued on the aspect of on set of rigor<\/p>\n
    mortis, time within which the rigor mortis sets in after the death and till<\/p>\n
    what time it continues to be there. Similarly, the learned counsel also<\/p>\n
    highlighted the various factors which affect the entire process of setting in<\/p>\n
    of rigor mortis, duration of its presence and time it takes to disappear.\n<\/p>\n
    However, there is no reason for us to disbelieve the probable time of<\/p>\n
    death given by the Medical Officer in her substantive evidence. It is<\/p>\n
    pertinent to note that the Medical Officer after taking into consideration<\/p>\n
    the relevant factors which affects the formation of rigor mortis, time<\/p>\n
    required, duration of its presence and the time within which it disappears,<\/p>\n
    has opined that probable time of death of Murlidhar was six hours approx.\n<\/p>\n
    prior to post-mortem examination. The post-mortem examination was<\/p>\n
    conducted by Dr.Meena at 5.00 p.m. on the date of the incident i.e. on<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>
\n                                      30                                    APEAL936.03<\/p>\n
    18.7.2001 and as per the prosecution, the incident had taken place around<\/p>\n
    10.15 to 10.30 a.m. It is, therefore, evident that the probable time of<\/p>\n
    death of deceased Murlidhar given by the Medical Officer corroborates<\/p>\n
    the testimony of eye-witnesses who have specifically stated that they have<\/p>\n
    seen the appellants assaulting the deceased on 18.7.2001 at about 10.15 to<\/p>\n
    10.30 a.m. and the deceased died on the spot. The medical evidence,<\/p>\n
    therefore, in our view, corroborates all the material particulars of the<\/p>\n
    prosecution case disclosed by the eye-witnesses so far as they relate to the<\/p>\n
    assault. It is the case of the prosecution that the appellants armed with<\/p>\n
    swords formed an unlawful assembly and assaulted the deceased with<\/p>\n
    swords. The deceased has received multiple incised wounds, including<\/p>\n
    fractures of various bones.     The medical evidence adduced by the<\/p>\n
    prosecution in the present case is completely consistent with the case of<\/p>\n
    the prosecution disclosed by the eye-witnesses.\n<\/p>\n
    32.     The contention of the learned counsel for the appellants regarding<\/p>\n
    recovery of only four weapons i.e. sattur, sickle and two swords is<\/p>\n
    inconsistent with the prosecution version which says that all the<\/p>\n
    appellants were armed with swords, hence creates doubt about the<\/p>\n
    genuineness of the prosecution case is misconceived. The present case is<\/p>\n
    based on the direct evidence of three eye-witnesses out of which the<\/p>\n
    reliable, trustworthy and cogent evidence is that of P.W.1 Dadarao<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>
\n                                      31                                    APEAL936.03<\/p>\n
    (complainant) and Tarabai (P.W.5). The testimony of both these witnesses<\/p>\n
    is free from material contradictions and omissions. On the other hand, as<\/p>\n
    we have already observed, the tenor of the cross-examination shows that<\/p>\n
    the defence has not seriously disputed the presence of these two eye-\n<\/p>\n
    witnesses on the spot of the incident and, therefore, the trial Court, in our<\/p>\n
    view, was perfectly justified in placing reliance on the ocular testimony of<\/p>\n
    eye-witnesses P.Ws. 1 and 5. So far as P.W.2 Bajarang is concerned,<\/p>\n
    there is material omission in his police statement proved by the defence<\/p>\n
    and, therefore, even if the testimony of P.W.2 Bajarang is kept aside, the<\/p>\n
    evidence of P.W.1 Dadarao and P.W.5 Tarabai, coupled with the medical<\/p>\n
    evidence and other attending circumstances being cogent, consistent with<\/p>\n
    the material particulars of the prosecution case, the order of conviction is<\/p>\n
    sustainable in law. In the instant case, the other evidence adduced by the<\/p>\n
    prosecution was in the form of inquest panchanama which has been<\/p>\n
    proved by the panch witness. The clothes of the accused Sahadeo and<\/p>\n
    Maruti were stained with blood of AB group.            Similarly, the sword<\/p>\n
    discovered at the behest of the accused Maruti and Sahadeo were also<\/p>\n
    stained with human blood.         The circumstances brought on record<\/p>\n
    corroborates the ocular testimony of eye-witnesses and the witnesses<\/p>\n
    examined by the defence failed to create any impact on the evidence of<\/p>\n
    the eye-witnesses as well as other prosecution evidence.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span><\/p>\n
                                      32                                   APEAL936.03<\/p>\n
    33.      In the instant case, the trial Court has acquitted original accused<\/p>\n
    no.4 Bhaiyaji Bhimrao Kale for the offences punishable under sections<\/p>\n
    147, 148, 302 read with section 149 of the I.P.C., since the plea of alibi<\/p>\n
    taken by Bhaiyaji was held to be proved by him. In order to establish the<\/p>\n
    plea of alibi, the accused no.4 had produced on record the Muster Roll of<\/p>\n
    the office of Mathadi Sangh and also examined two defence witnesses,<\/p>\n
    one is Sahebrao Bapu Pimpare and another is                Kantilal Shankar<\/p>\n
    Naikwade. Defence witness no.1 has stated before the Court that Bhaiyaji<\/p>\n
    was working as a Mathadi worker and his registration number is 15288<\/p>\n
    and on 18.7.2001 he was present on duty. He has produced on record the<\/p>\n
    attendance register and the computer print out at exh.96 and 97. Another<\/p>\n
    defence witness Kantilal Naikwade corroborated the evidence of defence<\/p>\n
    witness Sahebrao in respect of the fact that on the date of the incident<\/p>\n
    Bhaiyaji was working as a Mathadi worker. We want to express that even<\/p>\n
    if the part of the testimony of eye-witnesses P.W.1 Dadarao and P.W.5<\/p>\n
    Tanaji pertaining to the complicity of accused Bhaiyaji is excluded, even<\/p>\n
    then the remaining part of the testimony of eye-witnesses cannot be<\/p>\n
    brushed aside or discarded which, in our opinion, is totally consistent with<\/p>\n
    the material particulars of the prosecution case and is completely<\/p>\n
    corroborated by the medical evidenced. It is well-settled that part of the<\/p>\n
    testimony of the witness even if excluded from consideration, however, if<\/p>\n
    the remaining part of the testimony of the witness is cogent, trustworthy,<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>
\n                                      33                                    APEAL936.03<\/p>\n
    reliable and inspires confidence, in that case, that part of the testimony of<\/p>\n
    the witness can be relied on by the Court for awarding conviction,<\/p>\n
    provided the same is corroborated by the other evidence adduced by the<\/p>\n
    prosecution. In the instant case, the evidence adduced by the prosecution<\/p>\n
    against the appellants is cogent, trustworthy and reliable and, therefore,<\/p>\n
    the order of acquittal passed by the trial Court in respect of Bhaiyaji does<\/p>\n
    not adversely affect the same.        Considering the ambit and scope of<\/p>\n
    jurisdiction exercised by this Court while dealing with appeal against<\/p>\n
    acquittal, coupled with the finding of acquittal recorded by the trial Court,<\/p>\n
    no case is made out for showing indulgence in Criminal Appeal no.89 of<\/p>\n
    2004 filed by the State.\n<\/p>\n
    34.   In the result, both the Criminal Appeals suffer from lack of merits<\/p>\n
    and the same are dismissed. However, bail bond executed by the original<\/p>\n
    accused no.4 (respondent in Criminal Appeal no.89 of 2004) shall stand<\/p>\n
    cancelled.\n<\/p>\n
                                                   (D.D. SINHA, J.)<\/p>\n
                                                    (A.R. JOSHI, J.)<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:28:57 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ratu @ Ratnakar Shamrao Kale vs The State Of Maharashra. : on 24 September, 2010 Bench: D.D. Sinha, A. R. Joshi 1 APEAL936.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.936 OF 2003 1. Ratu @ Ratnakar Shamrao Kale, ) age\/adult. ) 2. Satu @ Satish Shamrao […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-23157","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRatu @ Ratnakar Shamrao Kale vs The State Of Maharashra. : on 24 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ratu-ratnakar-shamrao-kale-vs-the-state-of-maharashra-on-24-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ratu @ Ratnakar Shamrao Kale vs The State Of Maharashra. : on 24 September, 2010 - 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