{"id":245924,"date":"2011-10-18T00:00:00","date_gmt":"2011-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kailas-vs-the-state-of-maharashtra-on-18-october-2011"},"modified":"2016-02-11T18:40:14","modified_gmt":"2016-02-11T13:10:14","slug":"kailas-vs-the-state-of-maharashtra-on-18-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kailas-vs-the-state-of-maharashtra-on-18-october-2011","title":{"rendered":"Kailas vs The State Of Maharashtra = on 18 October, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kailas vs The State Of Maharashtra = on 18 October, 2011<\/div>\n
Bench: A. H. Joshi, A. R. Joshi<\/div>\n
                                 1              Cri.AppealNo.29\/2011\n\n          IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n                     BENCH AT AURANGABAD\n\n\n\n\n                                                               \n                   CRIMINAL APPEAL NO.29\/2011 \n\n\n\n\n                                       \n     1)   Kailas s\/o Mahadeo Jadhav\n          Age: 42 Yrs., occu. Agril.\n\n\n\n\n                                      \n     2)   Shahaji s\/o Bhagwan Bolbhat\n          Age: 33 Yrs., occu. Agril.\n\n     3)   Tatyaram s\/o Bhimrao Jadhav\n\n\n\n\n                             \n     4)   Harish @Hariram s\/o Subbarao\n          Birangal \n          (Resp. No.4 is deleted as per \n          court's order  dated 3.3.2011)\n                  \n     5)   Arun s\/o Bhagwan Bolbhat\n          Age: 42 Yrs., occu. Agril.\n\n     6)   Rajesh s\/o Dadahari Walke\n      \n\n\n          Age:25 Yrs offu.Agril.\n   \n\n\n\n          All r\/o Sonegaon, Tq.Jamkhed,\n          District Ahmednagar.                   = APPELLANTS\n\n          VERSUS\n\n\n\n\n\n     1)   The State of Maharashtra               = RESPONDENT\n\n     Shri Shirish Gupte, Sr.Advocate instructed by\n     Smt.Sadhana S. Jadhav with Mr.Satej S.Jadhav, \n\n\n\n\n\n     Advocates for Appellants;\n\n     Mr.NR Shaikh, APP for State\n\n                              WITH\n\n              CRIMINAL APPEAL NO.121 OF 2011.\n\n     1)   Tatyaram s\/o Bhimrao Jadhav\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 17:51:51 :::\n                                 2               Cri.AppealNo.29\/2011\n\n          Age: 29 Yrs., occ. Agril.\n          r\/o Sonegaon, Tq. Jamkhed,\n\n\n\n\n                                                               \n          District Ahmednagar.\n\n\n\n\n                                       \n     2)   Harish @ Hariram Subbarao \n          Birangal, Age: 28 Yrs.\n          Occupation - Agril.\n          r\/o Sonegaon, Tq. Jamkhed,\n\n\n\n\n                                      \n          District Ahmednagar.       =  APPELLANTS\n\n          VERSUS\n\n     The State of Maharashtra           =  RESPONDENT\n\n\n\n\n                           \n                    ig      ....\n     Mr.RN Dhorde with Mr.VR Dhorde, Advocates for\n     appellants;\n     Mr.NR Shaikh, APP for State.\n                  \n                           -----\n                            WITH\n               CRIMINAL APPEAL NO.27 OF 2011\n      \n\n\n     Smt.Suman s\/o Baban Misal\n   \n\n\n\n     Age:36 Yrs., occu. Household\n     R\/o Sonegaon, Tq. Jamkhed,\n     District Ahmednagar.               =  APPELLANT\n\n\n\n\n\n          VERSUS\n\n     1)   The State of Maharashtra.\n\n     2)   Kailash Mahadev Jadhav,\n          age: 38 Yrs., occu. Agril.\n\n\n\n\n\n     3)   Shahaji Bhagwan Bolbhat,\n          Age: 30 Yrs., occu. Agril.\n\n     4)   Tatyaram Bhimrao Jadhav,\n          Age: 27 Yrs., occu. Agril.\n\n     5)   Harish @ Hariram Subbarao\n          Birangal, Age: 26 Yrs.\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 17:51:51 :::\n                                  3              Cri.AppealNo.29\/2011\n\n          Occupation - Agril.\n\n\n\n\n                                                               \n     6)   Arun Bhagwan Bolbhat,\n          Age: 39 Yrs., occu. Agril.\n\n\n\n\n                                       \n     7)   Rajesh s\/o Dadahari Walake,\n          Age: 22 Yrs., occu. Agril.\n\n\n\n\n                                      \n          All R\/o Sonegaon, Tq.Jamkhed,\n          District Ahmednagar.       =  RESPONDENTS\n\n          (in jail)\n\n\n\n\n                             \n     Mr.VD Sapkal, Advocate for Appellant;\n                  \n     Mr.NR Shaikh, APP for State;\n\n     Shri Shirish Gupte, Sr.Advocate instructed \n                 \n     bySmt.Sadhana S Jadhav with Mr.Satej S.Jadhav,\n     Advocates for Respondent Nos.2, 3 and 6 & 7;\n\n     Mr.RN Dhorde and Mr.VR Dhorde, Advocates, for\n     Respondent Nos.4 & 5.\n      \n\n\n                       ***\n   \n\n\n\n                        CORAM : A.H.JOSHI & \n                                 A.R.JOSHI,JJ.\n\n     DATE OF RESERVING JUDGMENT : 16th September, 2011.\n\n\n\n\n\n     DATE OF PRONOUNCING JUDGMENT: 18th October,2011\n                                              \n     JUDGMENT (PER:-A.H.JOSHI,J.)\n<\/pre>\n
     1)       The   Appellants   were   tried   in   Sessions
\n     Case   No.199\/2008   for   the   offences   punishable
\n     under Sections 120-B, 148, 149, 302, 341, 201 of
\n     IPC read with Section 149 and also  under Section
\n     3(i)(x)   of   Scheduled   Castes,   Scheduled   Tribes
\n     (Prevention of Atrocities) Act, read with Section <\/p>\n
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\n                                     4              Cri.AppealNo.29\/2011<\/span><\/p>\n
     149 of IPC and Section  3(ii) r\/w section 149 of <\/p>\n
     IPC by the learned Sessions Judge, Ahmednagar.\n<\/p>\n
     2)          The   trial   ended   in   conviction   of   the
\n     accused   persons   for   all   the   offences,   except
\n     offence under Section 120-B of IPC and they have <\/p>\n
     been ordered to undergo life sentence.\n<\/p>\n
     3)          Heard   learned   Senior   Advocate   Shri <\/p>\n
     Shirish   Gupte   with   Smt.Jadhav   and   Shri   Satej <\/p>\n
     Jadhav   and   learned   Advoate   Mr.R.N.Dhorde,     for
\n     the   respective   appellants\/accused;   learned   APP <\/p>\n
     for State; and learned Advocate Mr.VD Sapkal for
\n     Appellant in Criminal Appeal No.27\/2011.\n<\/p>\n
     4)          Facts of the case, as have been gathered
\n     from the rival submissions, judgment etc., can be <\/p>\n
     summarized as follows :-\n<\/p>\n
          (i)         The   incident   had   occurred   at   about
\n          6.00 p.m. on 5.7.2008.<\/p>\n
          (ii)        Accused   persons   had   political   and <\/p>\n
          business rivalry against one Baban Misal, the
\n          victim.  <\/p><\/blockquote>\n
          (iii)       The accused pesons            were   in   a
\n          car. Accused  persons  chased Baban Misal on
\n          village Kharda to Jamkhed road, while                         the <\/p>\n
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\n                                 5               Cri.AppealNo.29\/2011<\/span><\/p>\n
     victim was       driving  the motor-cycle and PW <\/p>\n
     No.1  Shri       Sham   Sathe   was   the       pillion
\n     rider.   The motor-cycle did skid. The riders <\/p>\n
     fell down.  The accused            persons   got   down
\n     from   the   car   with   weapons.   The   accused
\n     persons   stopped   the   victim   and   dared   Baban <\/p>\n
     and PW No.1 to         escape if they can   as the
\n     accused had      arrived to finish Baban.\n<\/p>\n
     (iv)       PW   No.1   –   Sathe   started   running <\/p>\n
     away.   Some accused had caught at the shirt
\n     of   PW   No.1,   which   was   torn   and   a   piece <\/p>\n
     thereof got separated and fell down. PW No.1
\n     then ran and concealed himself behind a tree
\n     and witnessed the incident.\n<\/p>\n
     (v)        One   amongst   the   accused   persons <\/p>\n
     caught hold of Baban Misal by encircling him
\n     with   bicycle     chain,   and   all   accused   beat <\/p>\n
     Baban   Misal   with   different   weapons.     The
\n     victim fell down due to the injuries.\n<\/p>\n
     (vi)       The   accused   persons   then   created   a <\/p>\n
     show   of   motor-cycle     accident   with   car,
\n     lifted and threw the dead body of Baban Misal
\n     in   the   gutter   near   rear   wheel   of   the   car,
\n     put   a   stone   on   body   of   the   victim   and   then
\n     left the place of occurrence.\n<\/p>\n
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\n                                    6              Cri.AppealNo.29\/2011<\/span><\/p>\n
          (vii)       Relatives of the deceased arrived at <\/p>\n
          the   scene   of   offence,   after   half   an   hour.
\n          Police   as   well   as   local   politically <\/p>\n
          influential persons arrived thereafter.\n<\/p>\n
          (viii)      The   offence   regarding   the   incident <\/p>\n
          was   registered   at   about   1.30   a.m.   on
\n          6.7.2008.\n<\/p>\n
          (ix)        Investigation   was   carried   out.\n<\/p>\n
          Weapons of assault used in the commission of
\n          the   offence   were   seized.   Statements   of <\/p>\n
          several persons \/ witnesses were recorded and
\n          the accused were charge sheeted and tried
\n          accordingly.\n<\/p>\n
     5)          Prosecution   has   examined   19   witnesses, <\/p>\n
     as under.\n<\/p>\n
          .    PW No.1  -Shri   Sham   Kisan   Sathe,  is   the
\n          eye-witness,   who   has   lodged   the   FIR
\n          (Exhibit-61).\n<\/p>\n
               The Panch     witnesses   to   various
\n          panchanamas   drawn   during   the   course   of <\/p>\n
          investigation.\n<\/p>\n
          .    PW No.2  -Gautam   Ananda   Sadafule   (Exh.\n<\/p>\n
          65) <\/p>\n
          .      PW No.3  -Rajesh Sukhdeo Wavhal (Exh.67)<\/p>\n
          .      PW No.4  -Pandit Sitaram Pawar (Exh.74), <\/p>\n
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\n                               7              Cri.AppealNo.29\/2011<\/span><\/p>\n
     .    PW No.5    -Somnath   Gorakh   Jadhav   (Exh.\n<\/p>\n
     78), <\/p>\n
     .    PW No.6    -Kachru Ankush Rajguru declared <\/p>\n
     hostile.\n<\/p>\n
     .    PW No.7    -Sambhaji   Namdeo   Jadhav   (Exh.\n<\/p>\n
     83) and <\/p>\n
     .    PW No.8    -Balasaheb   Shela   Shinde   (Exh.\n<\/p>\n
     86) <\/p>\n
     .    PW No.9 -Dr.Umesh   Narayanrao   Rayate   is <\/p>\n
     the medical officer, who    had conducted post
\n     mortem    examination of dead body of deceased <\/p>\n
     – Baban Misal (Exh.90).\n<\/p>\n
     .    PW No.10 -Shri   Sudhir   Dagdu   Kale   is <\/p>\n
     examined   to   prove   that   earlier   he   was   the
\n     owner   of   Maruti   car   bearing   registration
\n     No.MH-12-YA-7929, used   by   accused,   which   he
\n     had   sold   to   accused   No.2   –   Shahaji
\n     Bolbhat(Exh.94);\n<\/p>\n
     .    PW No.15 -Shri Somnath Eknath    Kathawate <\/p>\n
     is a protographer, who has   undertaken   the
\n     photography of the  place   of   offence,   dead
\n     body, car etc.     involved   in   the   offence
\n     (Exh.     109);\n<\/p>\n
     .    PW Nos.14, 16 and 17 are the     witnesses
\n     of certain relevant facts so as to show the
\n     previous rivalry between   the   parties,
\n     disputes etc (Exhibits   –   106,   110   &   111 <\/p>\n
     respectively).\n<\/p>\n
     .    PW No.13 -Ansar   Ismile   Baig,   the
\n     police constable  is examined to    prove
\n     that certain articles were sent for chemical
\n     analysis (Exhibit 104);\n<\/p>\n
     .    PW No.18 -Sandip   Rajaram   Doifode   is
\n     SDPO, who took over the     investigation   on
\n     5.7.2008 and carried   certain   investigation <\/p>\n
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\n                                   8              Cri.AppealNo.29\/2011<\/span><\/p>\n
          (Exh.117);\n<\/p>\n
          (9) PW No. 19 – Sandip Sukhanand   Jadhav is
\n          the Investigating Officer (Exh.140).\n<\/p>\n
     6)        The   prosecution   case   mainly   rests   on
\n     testimony  of PW No.1 – Shri Shyam  Sathe.   Other <\/p>\n
     witnesses though important in their own way, are
\n     formal or of lesser significance.\n<\/p>\n
               Relevant portion of testimony of PW No.1
\n     needs to be extracted in order to segregate exact <\/p>\n
     version, which proves certain facts from other.\n<\/p>\n
     7)        Relevant   portion   from   testimony   of   PW
\n     No.1 – Shyam Sathe, verbatim, is quoted below :-\n<\/p>\n
          EXAMINATION-IN-CHIEF OF PW NO.1 (EXHIBIT-61) <\/p>\n
          “1). ………………………………\n<\/p><\/blockquote>\n
          …………………………………..\n<\/p><\/blockquote>\n
          (a) At   that   time   Harish   Subharao
\n          Birangal had encircled Baban by chain   and
\n          was holding him;\n<\/p><\/blockquote>\n
          (b) Kailas   Mahadeo   Jadhav   hit   on   Baban
\n          Misal  by sword below left ear and   said
\n          that there was opposition to        give   away
\n          the water from tank and       this   Mangatya
\n          has made the Government   to   give   the <\/p>\n
          water, and    not to let him alive;\n<\/p><\/blockquote>\n
          (c) At   that   time,   Shahaji   Bahgwan
\n          Bolbhat said that the liquor shop        from
\n          the village is  closed  by this Mangatya,
\n          the boarding was closed    and   not   to
\n          leave alive this Mangatya  and   he   hit   by
\n          Sattor on the left ear;\n<\/p><\/blockquote>\n
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\n                               9               Cri.AppealNo.29\/2011<\/span><\/p>\n
     (d) Tatyaram Bhimrao Jadhav assaulted by
\n     sword on the  right side  face and   head <\/p>\n
     of Baban;\n<\/p>\n
     (e) Thereafter,   Arun   Bhagwan   Bolbhat
\n     assaulted   by   sickle   on   left   and   right
\n     side of the head of Baban. At such time,
\n     Baban   Misal   tried   to   rescue   himself   by <\/p>\n
     using force.\n<\/p>\n
     (f) At   such   time,   Rajesh   Dadahari   Walke
\n     by   the   sword   in   his   hand   assaulted   on
\n     left   arm   and   shoulder   of       Baban.   On <\/p>\n
     coming   to   know   that   Baban   died,they
\n     thrown him in the ground. Thereafter   all <\/p>\n
     went inside  Maruti car.\n<\/p>\n
     (g)<\/p>\n
           They <\/p>\n
                   lifted
\n                              Baban   Misal   by    <\/p>\n
     holding hands  and   legs   and   thrown   him<\/p>\n
     near the<\/p>\n
               rear wheel of the Maruti car in
\n     the gutter.\n<\/p>\n
     (h) Kailas   Jadhav   lifted   one   stone   and <\/p>\n
     thrown it on the body of deceased  Baban
\n     Misal and said that finally the Mangatya <\/p>\n
     is eliminated.\n<\/p>\n
     (i) After some time the relatives   from
\n     our   village   come.     We   kept   crying   with <\/p>\n
     each other and police came.             We   went
\n     to Jamkhed police station  at about 10.30
\n     to 11 p.m.  I lodged the complaint.\n<\/p>\n
     (The   alphabetical   marking   and   sub-\n<\/p>\n
     paragraphing is done for convenience. The
\n     aforesaid extract is taken from page Nos.
\n     248, 249 & 250 of Paper book)<\/p>\n
     CROSS-EXAMINATION BY ADVOCATE FOR ACCUSED
\n     NOS.1 AND 2: (EXHIBIT-61) <\/p>\n
     “2)………………………………..\n<\/p>\n
     3)…………………………………\n<\/p>\n
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\n                                10               Cri.AppealNo.29\/2011<\/span><\/p>\n
     4)…………………………………\n<\/p>\n
     5)…………………………………\n<\/p>\n
     6)…………………………………\n<\/p>\n
     7)…………………………………\n<\/p>\n
     8)…………………………………\n<\/p>\n
     9)…………………………………\n<\/p>\n
     10) After   about   half   an   hour   the <\/p>\n
     relatives   from   the   village   arrived.     I
\n     cannot say by  which vehicle they           came
\n     there.  7 to 8 relatives       arrived there.\n<\/p>\n
     I had not inquired to  these   relatives   if <\/p>\n
     any one has   mobile  phone.   They   came
\n     by   vehicle.\n<\/p>\n
     Amongst   those   persons,   Baban’s   father
\n     Sitaram,  nephew   Rahul  Kamble   and <\/p>\n
     brothers Anil and Balu.\n<\/p>\n
     I   cannot   give   the   time   when   police
\n     arrived thereafter.\n<\/p>\n
     Que.:After police arrived, how much time
\n          you   took   to   leave   the   place   of<\/p>\n
          incident?\n<\/p>\n
     Ans.:I do not know the time when police
\n          arrived but I left the place after  <\/p>\n
          three   to   4   hours   from   the   time   of
\n          incident.\n<\/p>\n
     I   had   seen   2   to   3   police.   Thereafter
\n     Dy.SP, Ahmednagar arrived there.   When I <\/p>\n
     was   there   it   had   not   so   happened   that
\n     police had brought the Dog Squad.   I had
\n     stated   while   lodging   the   complaint   that
\n     police   had   arrived   there.     I   cannot
\n     assign reason as to why it is not stated
\n     in the complaint.\n<\/p>\n
     I   had   not   stated   to   the   police   at   the
\n     time of lodging the complaint that after
\n     the   incident   the   accused   sat   inside   the <\/p>\n
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\n                               11              Cri.AppealNo.29\/2011<\/span><\/p>\n
     car and again came out of the car.  I had
\n     not stated to the police that accused ran <\/p>\n
     through the field.\n<\/p>\n
     …………………………………..\n<\/p>\n
     …………………………………..
\n     …………………………………..
\n     (5) While   giving   the   complaint   I   stated
\n     to police that I was at home.   I cannot <\/p>\n
     assign as to why police had not written it
\n     in the complaint.\n<\/p>\n
     It  was not happened that I received the
\n     message and, therefore, I went.     After <\/p>\n
     receiving the call I started immediately.
\n     When I reached theagricultural land Baban <\/p>\n
     Misal was present.\n<\/p>\n
     I   reached   about   2   p.m.   Baban   Misal   had <\/p>\n
     taken   the   meal   in   my   presence.  The   meal <\/p>\n
     was completed up
\n                              to   2.30   p.m.
\n                                                At   that
\n     time, father   and   mother   of   Baban   were
\n     present in       the home.\n<\/p>\n
     We had not taken tea        before   we   started.
\n     At   Kharda   we   had   parked   the   motorcycle <\/p>\n
     and went aside.  Kacharu Rajguru is owner
\n     of  the   water   tank   and   Harishchandra
\n     Wadile was selling the fish.  My             shop
\n     of selling fish is adjacent to the   shop <\/p>\n
     of Wadile. Wadile is        resident   of   Kharda
\n     and Kacharu      Rajguru   is   resident   of
\n     village Dighol.     I   am   not   having
\n     relationswith them.   At that time, I had
\n     not met and spoken to them.  2 to 4 days <\/p>\n
     prior to the date of incident, I had  met
\n     Wadile for the last. I had not met   both
\n     of them for 7 to 8 days           after        the
\n     incident.\n<\/p>\n
     At Kharda,    there     was no tea offered
\n     to Baban Misal     by   both   of   them.   My
\n     native  place is Dhanegaon, which is at
\n     a distance    of   4   km.   away   from
\n     Sonegaon.  I  do not know  Subbabai  Kale <\/p>\n
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\n                               12              Cri.AppealNo.29\/2011<\/span><\/p>\n
     from Dhanegaon.\n<\/p>\n
     (6)  It had not happened that I<\/p>\n
                                        reached    <\/p>\n
     Jamkhed police station after <\/p>\n
                                     12<\/span>
\n                                          at   mid<\/p>\n
     night.\n<\/p>\n
     I narrated the        incident   in   the   manner
\n     it occurred       to the police while giving <\/p>\n
     the complaint.  It was the first time, I
\n     narrated   the   incident   at   Jamkhed   police
\n     station.     Thereafter   on   12.7.2008   I   was
\n     called   by   the   police   at   Jamkhed   police
\n     station.\n<\/p>\n
     I reached police station at about 11 a.m. <\/p>\n
     I received the message at about   10   a.m.
\n     The message was received that   I   was
\n     called    for  identification    of   the <\/p>\n
     weapons of the offence.\n<\/p>\n
     It is    true   that   on   that   day   I   was
\n     shown    the   weapons   which   are   shown   to
\n     me in    the   Court.   Sattur   is   used   for <\/p>\n
     cutting fish.\n<\/p>\n
     (7) The   spot   of   incident   is   at   a
\n     distance of 10 to 11 km away from Kharda.\n<\/p>\n
     It is true that the spot is
\n                                       on
\n                                            the   <\/p>\n
     left side of the road while
\n                                 going   towards  <\/p>\n
     Jamkhed from Kharda.\n<\/p>\n
     It   is   true   that   no   one   reside   in   the
\n     periphery   of   1   Km.   from   the   spot   of
\n     incident.    The   place   where   I   was   hiding <\/p>\n
     is   the   only   place   having   Mahananda
\n     creeper.\n<\/p>\n
     That spot is at   a distance of 50 to 60 <\/p>\n
     feet away from<\/p>\n
                         the   road.\n<\/p>\n
                                          Tatyaram
\n     chased me or 4 to  5 seconds.\n<\/p>\n
     I had not seen if Baban     Misal      was
\n     caught during those 4 to 5   seconds. When
\n     I turned back I seen   Baban   Misal   was <\/p>\n
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\n                                13              Cri.AppealNo.29\/2011<\/span><\/p>\n
     caught.  I seen that  Baban   was   caught
\n     at a distance of 30   to   35   feet   a   way <\/p>\n
     from road.\n<\/p>\n
     Myself     and   baban   ran   in   the   land   on
\n     one side of the road in two directions.\n<\/p>\n
     The distance between the place from
\n                                                     where<\/p>\n
     I   was   watching   and   the   spot   is   incident
\n     is about 70 to 80 feet.            The   incident
\n     of Baban Misal, caught holding   by   chain
\n     and encircled occurred at one place. The
\n     said act  was near the well.   <\/p>\n
\n\n\n\n\n                           \n     I had not gone\n               ig             for   rescue   of   Baban \n     when I seen the        incident. The chain was \n<\/pre>\n
     not completely taken around his body. He
\n     caught hold from behind.  Hands of Harish <\/p>\n
     were   ahead   of   Baban.   He   was   caught   hold
\n     for 5 to 8 minutes.          After   5   to   6
\n     minutes he had fallen.             After   he   had
\n     fallen,  the assault had                          not
\n     continued.\n<\/p>\n
     When the incident  occurred between 10 to <\/p>\n
     15 minutes,   no vehicle went through the
\n     road.\n<\/p>\n
     It   is   true   that   it   was   Saturday,   the <\/p>\n
     weekly market day of Jamkhed.  It is true <\/p>\n
     that the people of Kharda and
\n                                            Anandwadi<\/p>\n
     visit weekly market at        Jamked.      It   is
\n     true that at Jamkhed        at   every   Saturday
\n     there is market       for   bullocks.     On <\/p>\n
     Kharda Jamkhed road, the traffic is rare.\n<\/p>\n
     (8) to (12)…………………………\n<\/p>\n
     (13) I   do   not   know   if   on   5.7.2008   the
\n     houses   and   boardings   of   accused     were
\n     damaged and police case was  registered.\n<\/p>\n
     I do not know Suman    Kale              from \n     Sonegaon.  I do not know    if   Suman   Kale \n\n\n\n\n                                      ::: Downloaded on - 09\/06\/2013 17:51:52 :::<\/span>\n                                14              Cri.AppealNo.29\/2011<\/span>\n\n     had filed complaint     under   section   395 \n     IPC against Baban Misal.     I   do   not   know \n\n\n\n\n                                                              \n<\/pre>\n
     if the incidents of robbery had occurred
\n     on Kharda to  Jamkhed road.   It is  true <\/p>\n
     that   Jamkhed-Kharda     road   leads     to
\n     Tuljapur, Solapur.\n<\/p>\n
     It is true that  in the case in the year <\/p>\n
     1996 of which    I     deposed     it   was   a
\n     case    of  assault  and   injury   to   me
\n     under    section 307  IPC.   We  have   cross
\n     terms    with    the accused since 1996.\n<\/p>\n
     (14)……………………………….\n<\/p>\n
     (15) At   Kharda   there   is   Police   outpost.
\n     Village Rajuri is situated at 3 Km.\n<\/p>\n
                                                   from<\/p>\n
     the spot of  incident  towards
\n                                            Jamkhed.\n<\/p>\n
     The distance between spot of   incident
\n     and Jamkhed is about 10     Km.     I   cannot
\n     say if the cattle market   of   Jamkhed   on
\n     that day closed  at about 5 to 6 p.m.  <\/p>\n
     It is true,     that
\n                            on   the   road   between  <\/p>\n
     Kharda to
\n                 Jamkhed there are Rikshaws and        <\/p>\n
     jeep
\n          travelling   for   the   passengers.\n<\/p>\n
     Village Nandwadi is situated a \u00bd Km
\n                                                away<\/p>\n
     from spot of incident towards
\n                                          Kharda.\n<\/p>\n
     Que.:If you felt to take help of passing
\n          any   vehicle   on   the   road   after   the
\n          incident?\n<\/p>\n
     Ans.:I had not stopped any vehicle but it
\n          was stopped by them on their own.\n<\/p>\n
     I   had   not   tried   to   send   message   to   my
\n     relatives.   There   were   people   in   the
\n     vehicles which stopped there.\n<\/p>\n
     I inquired them if any one has a phone.
\n     They   were   having   mobile   phone.    I   have
\n     not   taken   the   phone   and   called   the <\/p>\n
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\n                                 15               Cri.AppealNo.29\/2011<\/span><\/p>\n
     relatives.  Those   persons   informed   the
\n     relatives   on   phone.  I   had   not   given   the <\/p>\n
     telephone number of the relative to them.\n<\/p>\n
     After   the   incident   occurred   and   accused
\n     ran   away   these   vehicles   stopped   after   5
\n     to   10   minutes.    I   had   not   asked   those
\n     persons to call police on phone.   I was <\/p>\n
     sitting   at   a   distance   of   10   feet   away
\n     from the body.\n<\/p>\n
     The   motorcycle   had   remained   at   the   same
\n     place   till   completion   of   the   incident <\/p>\n
     where it was fallen.\n<\/p>\n
     Maruti car and motorcycle were visible to
\n     the travellers to and fro.\n<\/p>\n
     We   both   had   fallen   down   from   the
\n     motorcycle.   When   the   car   was   brought
\n     across,   Baban   was   riding   the   motorcycle
\n     by   one   hand   and   talking   on   mobile   by
\n     another   hand.   The   place   where   we   had <\/p>\n
     fallen there is side gutter to the road.\n<\/p>\n
     I was not injured.\n<\/p>\n
     Mahananda   creeper   is   to     60   feet   away
\n     from the road.   It was possible to reach <\/p>\n
     the road from Mahananda creeper.\n<\/p>\n
     I have not attempted to get help when the
\n     incident   was   going   on   by   coming   on   the
\n     road.\n<\/p>\n
     There is no river near Mahananda creeper.
\n     It   is   not   true   to   say   that   there   is   no
\n     Mahananda creeper.  It is not true to say
\n     that I deliberately deposed falsely that
\n     there   is   Mahananda   creeper   to   make   out
\n     falsely that at that place I was hiding.\n<\/p>\n
     On the next day, I had gone to the place
\n     of   the   incident   with   police.     At   that <\/p>\n
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\n                                 16              Cri.AppealNo.29\/2011<\/span><\/p>\n
     time,   I   had   shown   the   place   of   Mahanda
\n     creeper   to   the   police.   The   spot <\/p>\n
     panchanama was written in my presence.\n<\/p>\n
     (16)……………………………….\n<\/p>\n
     (17) It   has   not   so   happened   that   Harish
\n     Birangal assaulted by chain on Baban.     I <\/p>\n
     had  stated  in     the           complaint  that
\n     Harish Birangal        assaulted by chain.\n<\/p>\n
     Que.:The   statement   in   complaint   that
\n          Harish   Birangal   assaulted   by   chain<\/p>\n
          on Baban is false?\n<\/p>\n
     Ans.:I   stated   such   thing   under   fear.     I
\n          cannot   say   if   it   is   true   or   false.
\n          It   is   true   to   say   that   I   was   under<\/p>\n
          fear   condition   amongst   the   police.
\n          It   is   not   true   to   say   since   I   had
\n          not   witnessed   the   incident,   and   I
\n          was   pressurized   to   give   false
\n          complaint,   therefore,   I   was   under<\/p>\n
          fear.\n<\/p>\n
     Que: Since   you   were   under   fearful
\n          condition,   you   cannot   say   if   the
\n          incidents   as   narrated   in   the
\n          complaint are correct or wrong?\n<\/p>\n
     Ans. Some mistake is possible.\n<\/p>\n
     (18) to (22)………………………..\n<\/p>\n
     (23) ………………I   was   not   injured
\n     when I fallen from      the   motorcycle   nor
\n     my clothes were    torn   at   that   time.   On
\n     that day, I   had   not   attended   the
\n     hospital it is     not   true   to   say   that
\n     when I had seen  the  dead   body   of   Baban
\n     then only I   realized   that   he   received
\n     injuries on various parts of body.\n<\/p>\n
     (24)……………………………….\n<\/p>\n
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          (25) …………..I do not know if Baban <\/p>\n
          was using  wrist   watch.   I   cannot   say   if
\n          Baban     was   using   golden   chain.   It   is <\/p>\n
          not true   to   say   that   at   the   time   of
\n          incident, Baban was wearing golden chain
\n          and having money with him.\n<\/p>\n
          He was having mobile hand set only. I   do
\n          not know if Baban was always         carrying
\n          diaries of accounts and       address   with
\n          him.  It is true that due to the assault
\n          on Baban, blood    was on the shoulder.  I <\/p>\n
          do not know   that   blod   was   stained   on
\n          the cyclechain.  The time period was of 5 <\/p>\n
          minutes from lifting of the dead          body
\n          from the place until the      accused   left
\n          from that place.\n<\/p>\n
          (   sub-paragraphing   is   done   for
\n          convenience.   The   aforesaid   extract   is
\n          taken from PAGE NOS.257, 258, 260, 261 to
\n          263,   268   to   269,   272,   275   of   the   paper <\/p>\n
          book)<\/p>\n
     8)        Perusal   of   post   mortem   examination
\n     reveals as follows :-\n<\/p>\n
          “(i)  Cause of death reads as follows:-\n<\/p><\/blockquote>\n
          “As per my opinion, the cause of    death   is
\n          “shock   due   to    cardio       respiratory <\/p>\n
          failure due to intra- cranial hemorrhage due
\n          to Brain injuries due to Rupture of skull”\n<\/p><\/blockquote>\n
          (ii) Other   injuries   on   the   body   are   17   in
\n          numbers, as shown in column No.17,which reads
\n          as follows :\n<\/p><\/blockquote>\n
               (1) Incised wound oblique on chin 07 cmx
\n               1 cm x Bone deep;<\/p><\/blockquote>\n
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      (2) Incised   wound   over   lower   part   left <\/p>\n
      cheek oblique – 5 cm x 1 cm x bone deep;\n<\/p>\n
      (3) Incised wound oblique over Lt. cheek
\n      above injury No.(2) – 4 cm x 1 cm x bone
\n      deep.\n<\/p>\n
      (4) Lacerated wound over middle part of
\n      left cheek extending from lt. angle   of
\n      mouth   up   to   Lower   part   of   Lt.   ear
\n      orifice  12 cm x 3 cm x bone deep.\n<\/p>\n
      (5) Incised   wound   oblique   over   upper
\n      part of lt. cheek above injury No.4 –   6 <\/span><\/p>\n
      cm x 01 cm x bone deep.\n<\/p>\n
      (6) Incised wound oblique on lt. Side of <\/p>\n
      neck below lt. Ear – 8 cm x 01 cm x 2
\n      cm.\n<\/p>\n
      (7) Incised   wound   over   middle   part   of
\n      lt. Ear lower \u00bd of lt ear  detached and <\/p>\n
      missing from body;\n<\/p>\n
      (8) Incised wound oblique over Rt. Cheek
\n      extending from right angle of mouth 8   cm
\n      x 1 cm x buccal cavity deep.\n<\/p>\n
      (9) Right ear detached and missing from
\n      body due to incised wound.\n<\/p>\n
      (10)<\/span><\/p>\n
           Nose,   both   the   eye-boles   upper   one<\/p>\n
      half   of   left   cheek   and   Right   cheek <\/p>\n
      missing due to crush injury.\n<\/p>\n
      (11)<\/span><\/p>\n
           Frontal bone, both paritals and both
\n      temporal   bones   crushed   and   brain   matter
\n      carrying out.\n<\/p>\n
      (12)  Multiple fractures of occipital bone
\n      on   both   sides   brain   matter   is     coming
\n      out.\n<\/p>\n
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                (13) Linear   abrasion   on   left   side   of
\n                chest above nipple – 8 cm x 5 cms.\n<\/p>\n
                (14) Linear   Abrasion   over   left   shoulder <\/p>\n
                on upper side – 4 cms x 2 cms.\n<\/p>\n
                (15) Linear   Abrasion   over   left   shoulder
\n                on deltoid region – 5 cm x 01 cm.\n<\/p>\n
                (16) Linear   Abrasion   6   cm   on   left   arm
\n                laterally horizonally.\n<\/p>\n
                (17) Linear Abrasion on left arm – 6 cms.\n<\/p>\n
                All   the   incised   wounds   are   caused   by  <\/p>\n
                hard  and sharp objects,  abrasions  and
\n                skull vault, bone fractures<\/p>\n
                                                 is caused by
\n                hard and blunt objects”.\n<\/p>\n
     9)         Injury Nos.10, 11 and 12 pertain to the
\n     skull   injury.   In   minimum   words   –   over   half   of <\/p>\n
     upper   portion   of   head   and   skull   bone   was   dis-\n<\/p>\n
     integrated   and   brain   mass   had   protruded   and   was
\n     in smashed condition.\n<\/p>\n
     10)        In the testimony, PW No.9 has stated as
\n     under:\n<\/p>\n
                “3……………………………….\n<\/p><\/blockquote>\n
                (a) The brain matter totally fragmented.\n<\/p><\/blockquote>\n
                Brain   covering   totally   torn.     Brain
\n                sinuses totally torn.  Brain matter   is
\n                mixed with the dark  coloured        clothes
\n                blood.  Brain matter cannot be   weighed.
\n                Two egg sized stones    found   in   brain
\n                matter.  Stones are     irregular in size.
\n                ………………………………….
\n                ………………………………….<\/p><\/blockquote>\n
                     The egg size of stone I referred to <\/p>\n
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      chicken eggs. Those two stones were   not
\n      sent to Chemical Analyzer nor   given   to <\/p>\n
      police…………………………….\n<\/p>\n
      (quoted   from   Examination-in-chief   of   PW
\n      No.9   from   page   nos.374.   375   &   376   of
\n      paper book)<\/p>\n
      He has stated as regards the matter   in
\n      stomach as follows, :\n<\/p>\n
      “4……………………………….
\n      It is true if the matter in stomach gets <\/p>\n
      vomited, it may occur on the clothes of
\n      the person.  It is true
\n          ig                        that        the
\n      clothes of the deceased       stained   with
\n      blood and not stained with   faecal   or
\n      vomit matter material.        The   stomach <\/p>\n
      was totally empty.According   to   me   more
\n      than six hours     passed after last meal
\n      and death.    There   are   no   signs   of
\n      vomiting in   Esophagus.  It is true that
\n      by such injuries   to   the   brain   instant <\/p>\n
      death    is possible………………..
\n      ………………………………….\n<\/p>\n
      5…………………………………
\n      It   is   true   that   if   a   person   is   caught
\n      hold   by  cycle  chain  or   hit  by  it,   weal <\/p>\n
      marks   are   visible   on   the   body.   No   weal
\n      marks of the chainwere   visible   on   the
\n      dead body……………………\n<\/p>\n
           It   is   true   that   crush   injuries   are
\n      possible in accident.\n<\/p>\n
      (quoted   from   Examination-in-chief   of   PW
\n      No.9   from   page   Nos.375,   376   and   377   of
\n      paper book)<\/p>\n
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     11)          The evidence on record is voluminous.\n<\/p>\n
                  Entire   case   however   rests   upon   the
\n     testimony of PW No.1 – the sole eye-witness.\n<\/p>\n
     12)          The substance of testimony of PW No.1 as
\n     regards     what   exactly   had   happened   on   the   scene <\/p>\n
     of offence needs to be referred   at the cost of
\n     repetition in summary as follows:-\n<\/p>\n
           (i)        The   accused   had   enmity   with   Baban
\n           Misal.\n<\/p><\/blockquote>\n
           (ii)       The accused had probably had tracked
\n           the movements of Baban Misal.\n<\/p><\/blockquote>\n
           (iii)      Therefore,   accused,   equipped   with
\n           weapons,  followed    Baban Misal  while he was <\/p>\n
           on   his   motorcycle   with   PW   No.1   as   pillion
\n           rider, spotted him on the place of incident, <\/p>\n
           and showered assault on Baban Misal.\n<\/p><\/blockquote>\n
           (iv)       The   assault   resulted   in   causing   17
\n           injuries,   as   noted   in   column   No.17   of   post <\/p>\n
           mortem   examination.   The   accused   had
\n           smashed\/scrambled   his   body,   done   him   to
\n           death, arranged the car to show scene of road
\n           accident,   thrown   dead   body   of   Baban   Misal
\n           near   rear   wheel   of   the   car   in   a   gutter   and
\n           fled from the scene of offence.\n<\/p><\/blockquote>\n
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           (v)         PW   No.1   got   scared   with   the
\n           situation,   kept   weeping   on   the   place   of <\/p>\n
           occurrence. The police inspector came on the
\n           place of offence.\n<\/p><\/blockquote>\n
           (vi)        The   relatives   of   deceased   Baban
\n           Misal   also   arrived   and   PW   No.1   and   the
\n           relatives kept crying and left the place for <\/p>\n
           going   to   the   police   station   only   at   11.00
\n           p.m.\n<\/p><\/blockquote>\n
           (vii)       PW No.1 went to police station after
\n           leaving the place of accident and lodged FIR
\n           late into the night.\n<\/p><\/blockquote>\n
     13)          The  prosecution  story   summarized   in  the <\/p>\n
     foregoing paras portrayed by the prosecution, is
\n     heavily   criticized   by   the   defence   on   various <\/p>\n
     counts.\n<\/p>\n
     14)          Various arguments are advanced to attack
\n     testimony   of   PW   No.1   regarding   his <\/p>\n
     trustworthiness. While attack on the testimony of
\n     PW   No.1   is   on   account   of   omissions   or
\n     contradictions.\n<\/p>\n
                  Challenge   to   the   worthiness   of   PW   No.1
\n     is     on   the   ground   of   testimony   being   rendered
\n     totally untrue and shown to be false on following <\/p>\n
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\n                                    23               Cri.AppealNo.29\/2011<\/span><\/p>\n
     points:-\n<\/p>\n
         (a) The   injuries   appearing   in   column   No.17 <\/p>\n
         and in particular injury Nos.1 to 9 and 14 to
\n         17   may   be   caused   due   to   any   weapons   in
\n         isolation   or   in   combination,   which   the <\/p>\n
         accused possessed.\n<\/p><\/blockquote>\n
                These   injuries   are   not   fatal,   taken
\n         together or in isolation.\n<\/p><\/blockquote>\n
         (b) The   injuries   on   the   face   and   head
\n         (Injury   Nos.10,   11   and   12)   are   not   just <\/p>\n
         possible   but   rather   inevitable   and   most
\n         eminent   in   case   of   a   car   and   motorcycle
\n         accident,   and   are   rather   impossible   by   one <\/p>\n
         and all sharp and hard weapons taken together
\n         or in isolation.\n<\/p><\/blockquote>\n
         (c) The spot panchanama shows that :-\n<\/p><\/blockquote>\n
                (i)  The brain matter is seen mixed with
\n                soil.\n<\/p><\/blockquote>\n
                (ii) Two stones of the shape and size of
\n                egg, have got into the brain mass still <\/p>\n
                remaining   lower portion of head, while
\n                upper half thereof is crushed and lying
\n                on the ground mixed with soil.\n<\/p><\/blockquote>\n<\/blockquote>\n
         (d) The   scene   of   offence   and   the   position
\n         in   which   the   dead   body   of   Baban   Misal     was <\/p>\n
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\n                                    24              Cri.AppealNo.29\/2011<\/span><\/p>\n
           found on the place of occurrence, do, falsify <\/p>\n
           in totality, the prosecution story portrayed
\n           through the testimony of PW No.1.\n<\/p><\/blockquote>\n
     15)        In   order   to   analyse   these   submissions,
\n     this Court has scrutinized and has re-appreciated <\/p>\n
     the evidence.\n<\/p>\n
     16)        Injury Nos.10, 11 and 12 in column No.17 <\/p>\n
     read as follows:\n<\/p>\n
                “(10)     Nose,   both   the   eye-balls
\n                upper   one   half   of   left   cheek   and <\/p>\n
                Right   cheek   missing   due   to   crush
\n                injury.\n<\/p><\/blockquote>\n
                (11)      Frontal      bone,           both \n      \n\n                parietals   and   both     temporal   bones \n<\/pre>\n
                crushed   and   brain   matter   carrying <\/p>\n
                out.\n<\/p><\/blockquote>\n
                (12)     Multiple   fractures   of
\n                occipital   bone   on   both   sides,   brain <\/p>\n
                matter is  coming out.”<\/p><\/blockquote>\n
                (quoted   from   post   mortem   examination
\n                report at page Nos.384 and 385 of paper
\n                book)<\/p>\n
     17)        In   the   spot  panchanama,  the  description
\n     as   to   scene   of   offence,   with   specific   reference
\n     to   the   situation,   blood-stains   on   the   car,   the
\n     description   of   brain   matter   etc.,   reads   as
\n     follows:\n<\/p>\n
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\n                                    25               Cri.AppealNo.29\/2011<\/span><\/p>\n
     (a) As to Location:-\n<\/p>\n
     \u00de—–lnj ?kVuk fBdk.kh gtj vlysys fQ;kZnh ;kauh vkiys
\n     ukao “kke fdlu lkBs o;% 38 jk- lksusxkao] rk- tke[ksM] vls<\/p>\n
     lkaxwu xqUg;kaph FkksMD;kr gdhdr R;kauh lkafxryh o xqUgk ?
\n     kMys fBdk.k nk[kfoys rs ikgrk lnjps fBdk.k gs vkuanokMh
\n     f”kokjkr tke[ksM rs [kMkZ tk.kkjs jksMps nf{k.ksl] jksMps yxr
\n     LVksu ua- 75@6 iklwu if”pesl 30 QqVkoj vlwu yxr<\/p>\n
     nf{k.ksl xfguhukFk dksaMhck tk;Hkk; ;kaps ekydhps “ksrkyxr
\n     xqUgk ?kMys fBdk.k vlqu lnj fBdk.kh vlysyk tke[ksM rs
\n     [kMkZ tk.kkjk jLrk iqoZ&if”pe vlqu rks iDdk Mkacjh fol
\n     QqVh vkgs- nksUgh cktqus lqekjs ikp & ikp QqVh dPpk jLrk<\/p>\n
     vkgs o dPP;k jLR;kps nksUgh cktwyk lkbZM xVkj vkgsr-
\n     jksMps nf{k.ksl dPP;k jLR;kyxr vlysys lkbZM xVkj<\/p>\n
     e\/;s ,d tkaHkG;k jaxkph ek:rh dkj ua- ,e,p&12&ok; ,&
\n     7929 gh if”pesdMs rksaM d:u frps MkohdMhy nksUgh pkds
\n     lkbM xVkjke\/;s o mtohdMhy nksUgh pkds xVkj iV~Vhps oj<\/p>\n
     v”kk fLFkrhr vlqu iq<hy cktwl dkpsoj HkxO;k jaxkr ^lkbZ*
\n     vls ejkBhe\/;s fyfgysys vkgs—– \u00de
\n     (quoted   from   spot   panchanama   (Exh.75)  <\/p>\n
     page No.317)<\/p>\n
     (b) As to blood:-\n<\/p>\n
     \u00de—–lnj dkjpk Dyhuj lkbZMpk ikBhekxhy njoktk m?kMwu
\n     ikgrk vkrhy lhVoj jDrkps Mkx vkgsr rlsp vkre\/;s iq<hy<\/p>\n
     lhV o ekxhy lhVP;k ekxs ,d Hkkjr xWlph Vkdh flycan
\n     fnlr vkgs- fDyuj lkbZMps njoktkps dkpsoj ckgsjhy cktwus
\n     jDrkps Mkx ykxys vlwu ekxhy fDyuj lkbZMps fMLdoj]
\n     Vk;joj jDrkps Mkx vlqu pkdkyk ykxwup xVkjhr tfeuhoj
\n     jDrkps FkkjksGs vkgsr—– \u00de<\/p>\n
     \u00de—–dkjps MkohlkbZMps ekxhy pkdktoG vankts 2 QqV x 2
\n     QqV vkdkjkpk jDrkpk FkkjksGk fnlr vlwu R;k yxrp lqekjs
\n     3 fdyks otukpk vkscM\/kkscM vkdkjkpk jDrkus Hkjysyk nxM
\n     iMysyk vkgs –\n<\/p>\n
     (quoted   from   spot   panchanama   (Exh.75)
\n     from page Nos.318 and 319 of Paper book)<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                        26               Cri.AppealNo.29\/2011<\/span><\/p>\n
           (c) As to description of face and head of <\/p>\n
           dead body :\n<\/p>\n
           “—–e;rkps
\n                      Mksds ukdkiklqu laiw.kZ oj QqVysys o m?kMs vkgs
\n           MkO;k tcM;kiklqu MkO;k dkuki;Zar [kkyh uewn izek.ks t[kek
\n           fnlr vkgsr—– \u00de<\/p>\n
           (quoted   from   Inquest   Panchanama,   (Exh.68)
\n           drawn on the dead body, seen in the  mortuary,
\n           at page Nos.302,of the paper book)<\/p>\n
     18)         At   this   stage,   it   would   be   useful   to <\/p>\n
     refer  to the version of PW No.1 relating to the
\n     manner, in which the dead body was thrown. Though <\/p>\n
     relevant portion is a part of quotation above, it
\n     would be convenient to reiterate it:\n<\/p>\n
                  ” They <\/p>\n
                           lifted
\n                                      Baban   Misal   by     <\/p>\n
                  holding hands  and legs and thrown him     <\/p>\n
                  near the<\/p>\n
                            rear   wheel   of   the   Maruti<\/p>\n
                  car in the gutter.<\/p><\/blockquote>\n
                  (quoted from Examination-in-chief of <\/p>\n
                  PW No.1 (Exh.61) at page No.250)<\/p>\n
     19)         The description of status of the brain,
\n     given by the Doctor – PW No.9, needs advertence.\n<\/p>\n
     20)         Relevant portion of testimony of PW No.9\n<\/p>\n
     –   Dr.Umesh   Rayate   is   quoted   herein   before   in
\n     paragraph   No.10,   which,   at   the   cost   of
\n     repetition, is quoted below:\n<\/p>\n
                 “3. The   brain   matter   totally
\n                 fragmented.   Brain   covering   totally <\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                     27              Cri.AppealNo.29\/2011<\/span><\/p>\n
                torn.     Brain   sinuses   totally   torn.\n<\/p><\/blockquote>\n
                     Brain matter   is mixed with the <\/p>\n
                dark  coloured        clots blood.\n<\/p><\/blockquote>\n
                     Brain matter cannot                 be <\/p>\n
                weighed.  Two egg sized stones found
\n                in   brain   matter.     Stones   are
\n                     irregular                           in
\n                size…………………………..\n<\/p><\/blockquote>\n
                     The egg size of stone I referred
\n                to   are   chicken   eggs.   Those   two
\n                stones were      not   sent   to   Chemical
\n                Analyzer nor given to police.”<\/p><\/blockquote>\n
                (quoted   from     Examination-in-chief <\/p>\n
                of PW no.9 (Exh.90) pag Nos.374, 375 <\/span>
\n                & 376)<\/p>\n
     21)        Now,   considering   the   possibility   as   to
\n     whether   the   injury   suffered   by   Baban   Misal   were
\n     solely on account of the assault and whether the <\/p>\n
     possibility   of   accident   is   to   be   totally   ruled <\/p>\n
     out, one has to focus on   the injury suffered by
\n     Baban Misal to his head.\n<\/p>\n
     22)        It is already noted that incised wounds
\n     are   capable   of   being   caused   by   sharp   and   hard
\n     weapon. Therefore, those injuries may support the
\n     prosecution   and   cannot   be   debatable   unless   the <\/p>\n
     possibility of main injury to the head by assault
\n     is totally ruled out.\n<\/p>\n
     23)        The   injury   to   the   head   is   described,
\n     wherein   the   upper   half   of   skull   is   fractured,
\n     crushed   and   separated   and   is   not   shown   to   have <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                    28              Cri.AppealNo.29\/2011<\/span><\/p>\n
     been retrieved or recovered and the brain mass is <\/p>\n
     shown   to   have   spilled   out   and   two   egg   sized
\n     stones   got mixed into the brain mass, which had <\/p>\n
     not spilled out.\n<\/p>\n
     24)        The description of scene of offence and <\/p>\n
     of   the   dead   body   and   its   medical   \/forensic
\n     evidence, generates  the following questions:-\n<\/p>\n
           (a) Under   what   circumstances,   when   a   dead <\/p>\n
           body is thrown to create a scene of accident,
\n           could   stones   get   admixed   into   un-separated <\/p>\n
           brain matter?\n<\/p><\/blockquote>\n
           (b) How could injury be caused to occipital <\/p>\n
           and   parietal   bones   and   destruction   of   eye
\n           matter occurr in absence of positive evidence <\/p>\n
           of   use   of   sharp   and   hard   weapon   amongst
\n           available, i.e. Sattur?\n<\/p><\/blockquote>\n
     25)        From the manner in which the skull bone
\n     got   fractured,   crushed   and   part   of   brain   matter
\n     had     remained   in   the   body   and   part   thereof <\/p>\n
     separated,   rules   out   the   possibility   of   assault
\n     by   sharp   weapon.   The   prosecution   should   have
\n     ruled   out   the   possibility   of   crush   injury   by
\n     sharp   weapon.   In   the   event   of   injury   by   sharp
\n     weapon     the   brain   matter   could   not   have   got
\n     crushed,   spilled   and   mixed   into   the   soil,   but <\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                     29              Cri.AppealNo.29\/2011<\/span><\/p>\n
     would have got segregated and laid on the ground <\/p>\n
     and may have still got mixed into soil. However,
\n     doctor could never have used the word “crushed”.\n<\/p>\n
                The   smash\/crush-like   situation   was
\n     possible   probably   due   to   traumatic   hammer-like
\n     impact,  which   appears   to   us  to   be   possible   only <\/p>\n
     in case of an accident.\n<\/p>\n
     26)        The   next   aspect   to   be   dealt   with,   is, <\/p>\n
     whether the version of PW No.1, as to his being <\/p>\n
     in   the   company   of   deceased   Baban   Misal   since
\n     afternoon, needs to be tested.\n<\/p>\n
     27)        PW   No.1   has   stated   that   he   and   the
\n     deceased   took   food   between   2.00   to   2.30   p.m., <\/p>\n
     This   fact   could   have   been   reinforced   by
\n     prosecution by  some corroboration.\n<\/p>\n
     28)        PW No.9 has, in specific terms, deposed <\/p>\n
     that   there   was   no   evidence   of   vomiting   by   Baban
\n     Misal   seen   on   the   clothes     of   deceased   and   any
\n     other   evidence   to   suggest   that   Baban   had   taken
\n     food till six hours before.\n<\/p>\n
     29)        This   version   of   PW   No.9   brings   entire
\n     version   of   PW   No.1,   about   his   being   in   the
\n     company   of   the   deceased   since   afternoon   having
\n     taken lunch as well as being prsent at the place
\n     of offence comes under grave shadow of doubt.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                     30              Cri.AppealNo.29\/2011<\/span><\/p>\n
     30)        The only evidence, which the prosecution
\n     relies upon as far as the presence of PW No.1 is <\/p>\n
     concerned,   is,   the   torn  piece   of   T-Shirt.     This
\n     piece   of   cloth   in   isolation,   does   not,   in   any
\n     manner, prove that PW No.1 was accompanying   the <\/p>\n
     deceased in the place of incident.\n<\/p>\n
     31)        PW   No.1   deposes   that   he   fell   down   with <\/p>\n
     deceased due to accident before assault.  PW No.1 <\/p>\n
     does not have injuries whatsoever.  At least bare
\n     abrasion   or   contusion   was   imminent.   The   absence <\/p>\n
     of   injury   is   evidence   of     the   probability   that
\n     nothing  as alleged by PW No.1 had occurred.\n<\/p>\n
     32)        It emerges from the foregoing discussion
\n     that though the prosecution has tried to portray <\/p>\n
     it as a case of assault, the evidence as to the
\n     nature   in   which   the   injury   was   suffered   to   the <\/p>\n
     skull and evidence as to the nature in which the
\n     brain   matters   was   spilled   out,   creates   grave
\n     doubt   as   to  probability  of   the   story   couched   by
\n     the prosecution.\n<\/p>\n
     33)        The   nature   in   which   the   head   and   skull
\n     bones   have   got   crushed   and   rendered   in   dis-
\n     integrated   position,   creates   a   strong   suspicion
\n     as to whether this type of destruction of a vital
\n     and   strong   human   organ,   i.e.   Head   (skull),   and <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                     31               Cri.AppealNo.29\/2011<\/span><\/p>\n
     crushing of skull bone, is possible by use of the <\/p>\n
     weapon – Sattur.\n<\/p>\n
     34)        The manner in which the head was crushed
\n     is   certainly   impossible   with   weapons   such   as
\n     sword, knife etc.  <\/p>\n
                The   type   of   crushing   injury   that   has
\n     occurred,   is   possible   only   in   a   situation   of
\n     trauma   caused   by   accident   or   caused   manually   by <\/p>\n
     use of hard and blunt object with severe impact.\n<\/p>\n
     In   the   present   case,   according   to   the
\n     prosecution,   the   accused   have   made   a   show   of <\/p>\n
     accident. However, alleged   weapon of assault is
\n     sharp and  does not correspond with the injuries.\n<\/p>\n
     35)        The   human   act   of   assault   and   crushing
\n     the   skull   bone   appears   to   be   a   figment   of <\/p>\n
     imagination rather than being raised to the level
\n     of preponderance of probabilities of existence as <\/p>\n
     a fact.\n<\/p>\n
     36)        PW   No.1   does   not   rise   to   the   level   of
\n     trust   as   a  truthful  witness.     Certain   facts  and <\/p>\n
     conduct of PW No.1, viz.:-\n<\/p>\n
           (a) in   running   away   from   the   place   of
\n           occurrence;\n<\/p><\/blockquote>\n
           (b) failing to intervene;\n<\/p><\/blockquote>\n
           (c) having   said   that   he   took   food   with   the <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                     32              Cri.AppealNo.29\/2011<\/span><\/p>\n
           deceased   at   2.00   p.m.   and   absence   of   food
\n           stuff   and   lack   of   material   vomited   by <\/p>\n
           deceased at the place of incident;\n<\/p><\/blockquote>\n
           (d) absence  of   injury,   whatsoever,   in   spite
\n           of falling from a speeding motorcycle;\n<\/p><\/blockquote>\n
           (e) solitary   evidence   as   to   torn   T-shirt <\/p>\n
           being found;\n<\/p><\/blockquote>\n
           (f) failure   of   police   in   taking   cognizance
\n           in   spite   of   arriving   at   the   place   of
\n           incident.\n<\/p><\/blockquote>\n
           (g) delay in recording the FIR;\n<\/p><\/blockquote>\n
           (h) type   of   damage   that   motorcycle   and   the
\n           car suffered which is not possible for human <\/p>\n
           agency;\n<\/p><\/blockquote>\n
           (i) the blood seen on the place of scene of
\n           offence, inside the car and outside, create a
\n           doubt as to whether the dead body was really <\/p>\n
           lifted   to   some   other   place,   where   no   blood
\n           was   found   in   the   possible   proportion,   while <\/p>\n
           there was pool of blood where the dead body
\n           was lying;\n<\/p><\/blockquote>\n
     all   taken   together,   create   grave   doubt   and
\n     suspicion   as   to   presence   and   availability   of   PW
\n     No.1 at the place of incident.\n<\/p>\n
     37)        All   these   circumstances   lead   to   the
\n     conclusion   that   the   prosecution   has   utterly
\n     failed to prove the case beyond suspicion.\n<\/p>\n
     38)        We therefore pass following order :-\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:51:52 :::<\/span>
\n                                     33              Cri.AppealNo.29\/2011<\/span><\/p>\n
     (a)        The   Criminal   Appeal   Nos.29\/2011   and <\/p>\n
     121\/2011 succeed and are allowed. Fine amount, if
\n     paid   by   the   appellants   in   these   appeals,   be <\/p>\n
     refunded to them.\n<\/p>\n
     (b)        Criminal Appeal No.27\/2011 filed by wife <\/p>\n
     of deceased is dismissed.\n<\/p>\n
     (c)        The Judgment and order of conviction and <\/p>\n
     sentence   recorded   in   Sessions   Trial   No.199\/2008 <\/p>\n
     of Sessions Court, Nanded is set aside.\n<\/p>\n
     (d)        The   appellants\/accused   be   set   at
\n     liberty,   if   they   are   not   required   in   any   other
\n     offence.\n<\/p>\n
                Sd\/-                  sd\/-  \n   \n\n\n\n           (A.R.JOSHI,J.)          (A.H.JOSHI,J.)\n                                  \n\n     bdv.\n\n\n\n\n\n     Fldr 16.9.11           \n\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 17:51:52 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kailas vs The State Of Maharashtra = on 18 October, 2011 Bench: A. H. Joshi, A. R. Joshi 1 Cri.AppealNo.29\/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.29\/2011 1) Kailas s\/o Mahadeo Jadhav Age: 42 Yrs., occu. Agril. 2) Shahaji s\/o Bhagwan Bolbhat Age: 33 Yrs., […]<\/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-245924","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKailas vs The State Of Maharashtra = on 18 October, 2011 - 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\/kailas-vs-the-state-of-maharashtra-on-18-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kailas vs The State Of Maharashtra = on 18 October, 2011 - 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