Criminal Appeal No. 424 of 2018 · Bombay High Court
Case Details
2024:BHC-AUG:8137-DB Criminal Appeal No.424/2018 with :: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.424 OF 20181)Rajendra @ Rajesh Mahadev Bahir,Age 26 years, occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.2)Raghunath s/o Sahebrao Bahir,Age 68 years, Occu. Agriculture, R/o Katewadi, Tal. Jamkhed,District Ahmednagar.3)Kailas s/o Tatyaba Bahir,Age 65 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.4)Somnath s/o Uddhav Bahir,Age 33 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.… APPELLANTSVERSUS1)The State of Maharashtrathrough the Police Inspector,Jamkhed Police Station,Tal. Jamkhed, Dist. Ahmednagar(Copy to be served upon office ofthe Public Prosecutor, High Court of Judicature at Bombay,Bench at Aurangabad)2)Bapusaheb s/o Asaram Bahir,Age 34 years, Occu. Centering work,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.… RESPONDENTS Criminal Appeal No.424/2018 with :: 2 ::.......Mr. Joydeep Chatterji, Advocate holding for Mr. G.P. Pande & Mr. B.P. Pande, Advocates for appellantsMr. S.D. Ghayal, A.P.P. for respondent No.1 – State Mr. R.P. Phatke, Advocate for respondent No.2. ....…WITHCRIMINAL APPEAL NO.432 OF 2018Sandip s/o Ganpat BahirAge 30 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.…APPELLANT 1)The State of Maharashtrathrough the Police Inspector,Jamkhed Police Station,Tal. Jamkhed, Dist. Ahmednagar(Copy to be served upon office ofthe Public Prosecutor, High Court of Judicature at Bombay,Bench at Aurangabad)2)Gayabai w/o Asaram Bahir,Age 59 years, Occu. HouseholdR/o Katewadi, Tal. Jamkhed,District Ahmednagar.… RESPONDENTS.......Mr. V.D. Sapkal, Senior Counsel with Mr. A.R. Devakate, Advocate for appellantMr. S.D. Ghayal, A.P.P. for respondent – StateMr. R.P. Phatke, Advocate for respondent No.2. ....…WITHCRIMINAL APPEAL NO.456 OF 2018 Criminal Appeal No.424/2018 with :: 3 ::1)Mahadev s/o Gahininath Bahir,Age 51 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.2)Sukhdeo s/o Raghunath Bahir,age 25 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.3)Shahaji @ Shahadeo s/o RaghunathBahir, Age 32 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.4)Malhari s/o Kailas Bahir,Age 25 years, Occu. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.5)Dada @ Ashok s/o Kisan Bahir,Age 32 years, Occu,. Agriculture,R/o Katewadi, Tal. Jamkhed,District Ahmednagar.…APPELLANTSVERSUS1)The State of Maharashtrathrough the Police Inspector,Jamkhed Police Station,Tal. Jamkhed, Dist. Ahmednagar(Copy to be served upon office ofthe Public Prosecutor, High Court of Judicature at Bombay,Bench at Aurangabad)2)Gayabai w/o Asaram Bahir,Age 59 years, Occu. HouseholdR/o Katewadi, Tal. Jamkhed,District Ahmednagar.… RESPONDENTS.......Mr. Joydeep Chatterji, Advocate holding for Criminal Appeal No.424/2018 with :: 4 ::Mr. G.P. Pande & Mr. B.P. Pande, Advocates for appellantsMr. S.D. Ghayal, A.P.P. for respondent No.1 – State Mr. R.P. Phatke, Advocate for respondent No.2. Mr. S.D. Ghayal, A.P.P. for respondent - State....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 26th February, 2024Date of pronouncing judgment : 17th April, 2024JUDGMENT (PER R.G. AVACHAT, J.) This group of three appeals is being decided bythis common judgment since the challenge therein is to oneand the same judgment and order of conviction andconsequential sentence, dated 10/5/2018, passed bylearned Additional Sessions Judge, Ahmednagar inSessions Case, No.265/2014. The appellants have beenconvicted and consequently sentenced to various terms ofimprisonments. The relevant operative order underchallenge in these appeals reads as follows :- 1)Accused Nos. 1) Mahadev Gahininath Bahir, 4)Sukhdeo Raghunath Bahir, 5) Shahaji @ ShahadeoRaghunath Bahir, 7) Malhari Kailas Bahir and 11) Dada@ Ashok Kisan Bahir, are hereby convicted of theoffence punishable under Sec. 302 r.w. 149 of I.P. Code, Criminal Appeal No.424/2018 with :: 5 ::vide Sec. 235(2) of Cr.P.Code, for committing murder ofAsaram Yashwant Bahir and Nitin Asaram Bahir, andare hereby sentenced to imprisonment for life, whichshall mean, till the end of their natural life and to payfine of Rs. 15,000/- (Rupees Fifteen thousand) each, andin case of default in payment thereof, to undergo furtherrigorous imprisonment for a term of three years. 2) Accused Nos.2) Rajendra @ Rajesh MahadevBahir, 3) Raghunath Sahebrao Bahir, 6) Kailas TatyabaBahir, 17) Somnath Uddhav Bahir, and 28) SandipGanpat Bahir, are hereby convicted of the offencepunishable under Sec. 302 r.w. 149 of I.P. Code, videSec. 235(2) of Cr.P.Code, for committing murder ofNitin Asaram Bahir, and are hereby sentenced toimprisonment for life, and to pay fine of Rs. 15,000/-(Rupees Fifteen thousand) each, and in case of default inpayment thereof, to undergo further rigorousimprisonment for a term of three years. 3) Accused Nos. 1) Mahadev Gahininath Bahir, 2)Rajendra @ Rajesh Mahadev Bahir, 3) RaghunathSahebrao Bahir, 4) Sukhdeo Raghunath Bahir, 5)Shahaji @ Shahadeo Raghunath Bahir, 6) KailasTatyaba Bahir, 7) Malhari Kailas Bahir, 11) Dada @Ashok Kisan Bahir, 17) Somnath Uddhav Bahir, and 28)Sandip Ganpat Bahir, are hereby convicted of theoffence punishable under Sec. 143 of I.P. Code, videSec. 235(2) of Cr.P.Code, and are hereby sentenced to Criminal Appeal No.424/2018 with :: 6 ::rigorous imprisonment for six months and to pay fine ofRs. 500/- (five hundred) each, and in case of default inpayment thereof, to undergo further rigorousimprisonment for a term of one month.4) Accused Nos.1) Mahadev Gahininath Bahir, 2) Rajendra@ Rajesh Mahadev Bahir, 3) Raghunath SahebraoBahir, 4) Sukhdeo Raghunath Bahir, 5) Shahaji @Shahadeo Raghunath Bahir, 6) Kailas Tatyaba Bahir, 7)Malhari Kailas Bahir, 11) Dada @ Ashok Kisan Bahir,17) Somnath Uddhav Bahir, and 28) Sandip GanpatBahir, are hereby convicted of the offence punishableunder Sec. 147 of I.P. Code, vide Sec. 235(2) ofCr.P.Code, and are hereby sentenced to rigorousimprisonment for two years and to pay fine of Rs.1,000/- (Rs. One thousand) each, and in case of defaultin payment thereof, to undergo further rigorousimprisonment for a term of three months.5)Accused Nos.1) Mahadev Gahininath Bahir, 2) Rajendra@ Rajesh Mahadev Bahir, 3) Raghunath SahebraoBahir, 4) Sukhdeo Raghunath Bahir, 5) Shahaji @Shahadeo Raghunath Bahir, 6) Kailas Tatyaba Bahir, 7)Malhari Kailas Bahir, 11) Dada @ Ashok Kisan Bahir,17) Somnath Uddhav Bahir, and 28) Sandip GanpatBahir, are hereby convicted of the offence punishableunder Sec. 148 of I.P. Code, vide Sec. 235(2) ofCr.P.Code, and are hereby sentenced to rigorousimprisonment for three years and to pay fine of Rs. Criminal Appeal No.424/2018 with :: 7 ::1,500/- (one thousand five hundred) each, and in case ofdefault in payment thereof, to undergo further rigorousimprisonment for a term of four months.6) Accused Nos. 1) Mahadev Gahininath Bahir, 3)Raghunath Sahebrao Bahir, 5) Shahaji @ ShahadeoRaghunath Bahir, 6) Kailas Tatyaba Bahir, and 7)Malhari Kailas Bahir, are hereby convicted of theoffence punishable under Sec. 452 r.w. 149 of the I.P.Code, vide Sec. 235(2) of Cr.P.Code, and are herebysentenced to rigorous imprisonment for a term of fouryears and to pay fine of Rs. 2,000/- (Rs. two thousand)each, and in case of default in payment thereof, toundergo further rigorous imprisonment for a term of sixmonths.7) Accused Nos. 1) Mahadev Gahininath Bahir and 3)Raghunath Sahebrao Bahir, are hereby convicted of theoffence punishable under Sec. 325 r.w. 149 of the I.P.Code, vide Sec. 235(2) of Cr.P.Code, (in respect ofinjured Gayabai) and are hereby sentenced to rigorousimprisonment for a term of five years and to pay fine ofRs. 3,000/- (Rs. Three thousand) each, and in case ofdefault in payment thereof, to undergo further rigorousimprisonment for a term of eight months.8) A) Accused Nos.1) Mahadev Gahininath Bahir, 4)Sukhdeo Raghunath Bahir, 5) Shahaji @ ShahadeoRaghunath Bahir, 7) Malhari Kailas Bahir, and 11) Dada Criminal Appeal No.424/2018 with :: 8 ::@ Ashok Kisan Bahir, are hereby convicted of theoffence punishable under Sec. 324 r.w. 149 of the I.P.Code, vide Sec. 235(2) of Cr.P.Code, for causing hurt toAsaram Bahir, and are hereby sentenced to rigorousimprisonment for a term of two years and to pay fine ofRs. 1,000/- (Rs. one thousand) each, and in case ofdefault in payment thereof, to undergo further rigorousimprisonment for a term of three months.B) Accused Nos.1) Mahadev Gahininath Bahir, 2) Rajendra@ Rajesh Mahadev Bahir, 3) Raghunath SahebraoBahir, 4) Sukhdeo Raghunath Bahir, 5) Shahaji @Shahadeo Raghunath Bahir, 6) Kailas Tatyaba Bahir, 7)Malhari Kailas Bahir, 11) Dada @ Ashok Kisan Bahir,17) Somnath Uddhav Bahir, and 28) Sandip GanpatBahir, are hereby convicted of the offence punishableunder Sec. 324 r.w. 149 of the I.P. Code, vide Sec.235(2) of Cr.P.Code, for causing hurt to Nitin Bahir, andare hereby sentenced to rigorous imprisonment for aterm of two years and to pay fine of Rs. 1,000/- (Rs. onethousand) each, and in case of default in paymentthereof, to undergo further rigorous imprisonment for aterm of three months. C) Accused Nos.1) Mahadev Gahininath Bahir, and 3)Raghunath Sahebrao Bahir, are hereby convicted of theoffence punishable under Sec. 324 r.w. 149 of the I.P.Code, vide Sec. 235(2) of Cr.P.Code, for causing hurt toGayabai Bahir, and are hereby sentenced to rigorous Criminal Appeal No.424/2018 with :: 9 ::imprisonment for a term of two years and to pay fine ofRs. 1,000/- (Rs. one thousand) each, and in case ofdefault in payment thereof, to undergo further rigorousimprisonment for a term of three months.9) A) Accused Nos. 1) Mahadev Gahininath Bahir, 4) SukhdeoRaghunath Bahir, 5) Shahaji @ Shahadeo RaghunathBahir, 7) Malhari Kailas Bahir, and 11) Dada @ AshokKisan Bahir, are hereby convicted of the offencepunishable under Sec. 323 r.w. 149 of the I.P. Code, videSec. 235(2) of Cr.P.Code, for causing hurt to AsaramBahir, and are hereby sentenced to rigorousimprisonment for a term of six months and to pay fine ofRs. 500/- (five hundred) each, and in case of default inpayment thereof, to undergo further rigorousimprisonment for a term of one month.B) Accused Nos.1) Mahadev Gahininath Bahir, 2) Rajendra@ Rajesh Mahadev Bahir, 3) Raghunath SahebraoBahir, 4) Sukhdeo Raghunath Bahir, 5) Shahaji @Shahadeo Raghunath Bahir, 6) Kailas Tatyaba Bahir, 7)Malhari Kailas Bahir, 11) Dada @ Ashok Kisan Bahir,17) Somnath Uddhav Bahir, and 28) Sandip GanpatBahir, are hereby convicted of the offence punishableunder Sec. 323 r.w. 149 of the I.P. Code, vide Sec.235(2) of Cr.P.Code, for causing hurt to Nitin Bahir, andare hereby sentenced to rigorous imprisonment for aterm of six months and to pay fine of Rs. 500/- (fivehundred) each, and in case of default in payment thereof, Criminal Appeal No.424/2018 with :: 10 ::to undergo further rigorous imprisonment for a term ofone month. 10) 1) Mahadev Gahininath Bahir, 4) Sukhdeo RaghunathBahir, 5) Shahaji @ Shahadeo Raghunath Bahir, 7)Malhari Kailas Bahir, and 11) Dada @ Ashok KisanBahir, are hereby convicted of the offence punishableunder Sec.504 r.w. 149 of the I.P. Code, vide Sec. 235(2)of Cr.P.Code, and are hereby sentenced to rigorousimprisonment for a term of one year and to pay fine ofRs. 500/- (five hundred) each, and in case of default inpayment thereof, to undergo further rigorousimprisonment for a term of one month. 11) 1) Mahadev Gahininath Bahir, 4) Sukhdeo RaghunathBahir, 5) Shahaji @ Shahadeo Raghunath Bahir, 7)Malhari Kailas Bahir, and 11) Dada @ Ashok KisanBahir, are hereby convicted of the offence punishableunder Sec. 506 r.w. 149 of the I.P. Code, vide Sec.235(2) of Cr.P. Code, and are hereby sentenced torigorous imprisonment for a term of one year and to payfine of Rs. 500/- (five hundred) each, and in case ofdefault in payment thereof, to undergo further rigorousimprisonment for a term of two months. 12) All the substantive sentences of imprisonment shall runconcurrently.13) All the accused Nos. 1 to 26, 28 & 32, are hereby
Facts
Criminal Appeal No.424/2018 with :: 11 ::acquitted of the offence punishable under Sections 3 & 4r.w. sec.25 of the Arms Act.14) The accused Nos. 8 to 10, 12 to 16, 18 to 26 and 32 arehereby acquitted of all the offences, they are chargedwith.15 to 19) . . . . . . . . . . . . . . . .20) . . . . . . . . . . . . . . The Police Inspector of Jamkhed Police Station isdirected to file separate charge-sheet against abscondingaccused persons as and when they are traced out.2.The First Information Report (F.I.R. - Exh.169)and the police papers indicate that the crime was registeredagainst known 32 and 7/8 unknown persons. Originalaccused Nos.27, 29, 30, 30 and 31 were not before the trialCourt. Evidence against them came to be recorded interms of Section 299 of the Code of Criminal Code(Cr.P.C.).3.Vide the impugned judgment and order, theappellants (10 in number) have been convicted. Neither theState nor the informant/ victim did prefer appeal againstacquittal of those who have been acquitted. Criminal Appeal No.424/2018 with :: 12 ::4.Facts, in short, as are disclosed from the policepapers and evidence before the Trial Court are as under : Katewadi is a small village in Taluka Jamkhed,District Ahmednagar. Distance between Katewadi andJamkhed is of around 7/8 Kms. Population of the village, atthe relevant time was around 550. Most of the families inthe village belong to Maratha community. Most of themhave common surname, “Bahir”.5.The F.I.R. (Exh.169) was lodged by P.W.5Bapurao by 11.30 a.m. on 12/5/2014. As stated above, theF.I.R. was registered against 32 known and 8 unknownpersons. 9 of 32 persons against whom the F.I.R. waslodged, were women.6.It is the case of P.W.5 Bapurao that his familywas comprised of his wife, his parents, brother Kalyan(P.W.8) and another brother Nitin (deceased). Nitin hadsecured a job with Agricultural Department at Nasik. Nitin’smarriage was scheduled for 19/5/2014. He had, therefore,been to the village Katewadi. Moreover, the informant’s twosisters, Kalpana and Jaya along with their respective Criminal Appeal No.424/2018 with :: 13 ::husband and children had also come for the marriage.7.Mahadev (original accused No.1), one of theappellants herein, is son of cousin of the father of informantBapurao. He would reside at Katewadi itself. There was along standing dispute between Asaram (deceased), fatherof P.W.5 Bapurao on one hand and appellant Mahadev andfew others (original accused and convicts as well) on theother. A civil dispute originally commenced with an entry inthe possession column of of the 7/12 extract. Afterexhausting all the remedies under the Maharashtra LandRevenue Code, 1966, the matter had reached the HighCourt. It was directed by the High Court that the partiesmay have their dispute/ civil rights decided in a civil suit. Acivil suit was, therefore, preferred in the Court, at Jamkhed.The suit was decreed in favour of P.W.5 Bapurao andothers.8.It also appears that, Asaram (deceased) hadsold 3 ½ acres of land in Gut No.257 to one YuvrajJamdade ostensibly for Rs.1,65,000/-. He had, however,received consideration of Rs.65 Lakhs. Possession of theland sold to Yuvraj Jamdade was, however, not delivered to Criminal Appeal No.424/2018 with :: 14 ::him. It appears that, other co-owners of the land GutNo.257 were opposed to allow Jamdhade to cultivate theland. The incident appears to be a fallout of the saiddispute.9.As per the case of the prosecution, it was 6.00 inthe morning of 12/5/2014. All the family members of P.W.5Bapurao (informant) were asleep in the house. Nitin(deceased) and Kalyan (P.W.8) had gone to the field ofHulgundes’, for answering nature's call. The entrance doorof the house was just simply closed (not bolted from inside).A group of persons arrived outside the house of P.W.5Bapurao. On hearing commotion, P.W.5 Bapurao and otherfamily members woke up. He saw Mahadev, Shahaji,Kailas, Sachin, Malhari and Raghunath Bahir (appellantsherein) entered his house. Appellant Mahadev was armedwith a pistol in one hand and sickle in the other (as perF.I.R.). Those others were armed with axe and swords. Allof them dragged Bapurao’s father Asaram (deceased) outof the house and beat him up mercilessly. Those aforesaid6 persons were accompanied by many others as well. Theytoo assaulted Asaram (deceased). Criminal Appeal No.424/2018 with :: 15 ::10.The assailants realized Nitin to have gone toanswer nature's call. They went towards him. All of themassaulted Nitin. Kalyan (P.W.8) had also gone to answernature's call. He took shelter at a tamarind tree. He sawthe appellants and others named in the F.I.R. to have beenassaulting Nitin. After Nitin was assaulted, the assailantsagain came back to the place whereat Asaram was lying asa result of assault. Gayabai, wife of Asaram had intervenedto save her son Nitin. She too was not spared by Mahadevand two others. P.W.5 Bapurao and P.W.8 Kalyan could notintervene to save their father and brother since theassailants were more in number and they even sensed fearto their lives. P.W.5 Bapurao, in the meanwhile made aphone call to a police station, first on landline and thencontacted Police Inspector, Incharge of the Police Station.The Police Station Officer on duty deputed two policeofficials, P.W.7 Bhingardive and P.W.13 Bade. Both of themcame to the village Katewadi. They saw both Nitin and hisfather Asaram to have suffered serious injuries. Both ofthem again contacted Police Station to secure a policevehicle. The vehicle arrived. The injured namely Asaram,Nitin and Gayabai were first taken to Government Hospital, Criminal Appeal No.424/2018 with :: 16 ::at Jamkhed. The Medical Officer there instructed to rushthem to Civil Hospital, Ahmednagar. They were, therefore,being taken to Ahmednagar. On the way at village Kada, itwas found that, both, Asaram and Nitin passed away. Theywere, therefore, taken to a private hospital of Dr. Gade,who, on examination, declared them dead. The deadbodies of both of them were, therefore, brought back toGovernment Hospital, Jamkhed.11.As stated above, P.W.5 Bapurao lodged theF.I.R. (Exh.169). C.R. No.76/2014 was therefore registeredat Jamkhed Police Station for the offences punishableunder Sections 302, 452, 325, 324, 143, 147, 148, 149,323, 504, 506 of the Indian Penal Code (IPC for short) andSections 3/25 and 4/25 of the Arms Act. The inquest on thedead bodies of both Asaram and Nitin was conducted.Their mortal remains were subjected to autopsy. Gayabaiwas admitted to hospital. The accused named in the F.I.R.were arrested one after the other. The appellantsRaghunath, Sukhdeo, Malhari, Somnath, Mahadev, Dada,Shahaji, Rajendra and Kailas made disclosure statements,pursuant to which sticks and iron rods allegedly used inassaulting the deceased, came to be recovered under Criminal Appeal No.424/2018 with :: 17 ::panchanamas (Exh.147 to 154 and 157 to 166). Theseized articles, clothes of the deceased were sent to F.S.L.,Nasik for analysis and report. Statements of personsacquainted with the facts and circumstances of the casewere recorded. Upon completion of the investigation, thecharge sheet was filed before the learned JudicialMagistrate, First Class, Jamkhed. The learned Magistratecommitted the case to the Court of Sessions, Ahmednagar.The case was assigned to the Court of Additional SessionsJudge, Ahmednagar (Trial Court) for trial in accordance withlaw.12.The Trial Court framed the charge (Exhs.52 and286). The accused pleaded not guilty. Their defence wasof false implication.13.The sum and substance of the defence of theaccused and the appellants was that, the deceased Asaramhad sold some land in Gut No.187 to one Yuvraj Jamdade.He did not deliver possession to Yuvraj. Co-owners of landGut No.257 did not allow Yuvraj to cultivate the land. Yuvrajwas asking Asaram to pay back the consideration amount.Yuvraj Jamdade and his men, therefore, committed the
Legal Reasoning
Criminal Appeal No.424/2018 with :: 37 ::44.It has further come on record during his cross-examination that, the incident lasted for about an hour.Villagers had gathered. Appellant Mahadev had, however,threatened them if anyone of them intervened. It wasspecifically suggested on behalf of accused Nos.1, 2 and 4to Bapurao (P.W.5) in his cross-examination in paragraphNo.18 as under : “It is true to say that, I became veryangry since accused were beating myfather and brother.”“ हहमहणणहखरहआहहककआररपपममझयमवडडलमलनमव ”भमवमलमममरतहरतहमहणणनमपखणपरमगमवलरहरतर (In our view, this suggestion is nothing butan admission on behalf of those accused as to the factthat this witness got angry on having seen themassaulting his father and brother).He did not try to disperse the assailants sincethey were more in number. There were no crops in theagricultural fields. The fields were, however, ploughed.Except his mother, none else from his family side came tointervene. His evidence further indicates that he namedSachin Bahir (not prosecuted) as one of the assailants. He Criminal Appeal No.424/2018 with :: 38 ::was specifically asked a question that accused Mahadevand other villagers were upset on account of harassmentmeted out to them by deceased Asaram and his familymembers. He replied that it was Mahadev and his familymembers were upset on account of civil litigation. Hedenied Asaram to have had received Rs.65 Lakhs asconsideration from Yuvraj. He denied the considerationwas shown at Rs.1,80,000/- in the sale deed. He admittedthat Mahadev and others had objected for recordingYuvraj’s name in the 7/12 extract. Yuvraj was not evenallowed to cultivate the land. He, however, denied that, theassault was made by Yuvraj and his men since his fatherhad refused to pay back the amount of consideration.45.It is further in his evidence that, he watched theincident by hiding himself near the wall outside his house.46.In response to the questions put to him on behalf ofAccused Nos.3, 5, 6 and 15 during his cross-examination, ithas been brought on record that he narrated the incident to P.I.Patil. P.I. Patil, in turn, dictated the same to his writer for beingrecorded. His evidence further indicates that contents of theF.I.R. were as per his narration. He admitted to have told P.I. Criminal Appeal No.424/2018 with :: 39 ::Patil that the assailants used weapons like axe, sugarcanecutter and sword. He on his own added to have told that henamed Sachin Bahir (not prosecuted) to have assaulted with abicycle chain.47.It is further in his evidence that happenings at theback of his house were not visible while standing in front of thehouse. He admitted that Advocate Gundecha wasrepresenting his father in a civil suit pending in the Court ofJamkhed. He, however, denied that the said Advocate hadcome to the police station with a copy of plaint and the F.I.R.was lodged against all those who were the defendants in thesaid suit, even in their chronological order therein. It is furtherin his evidence that his mother did not intervene to save herhusband. The scene of offence relating to the incident ofbeating Nitin was about twenty feet from the house of JayramHulgunde.48.In response to the questions put to him duringcross-examination on behalf of original accused Nos. 7, 11, 14,16, 17 and 26, it has been brought on record that he told thedoctor his name as person admitting the injured to the hospital.When he made a phone call on the landline of police station, Criminal Appeal No.424/2018 with :: 40 ::he told Dhiwar Saheb, name of one or two assailants. It isfurther in his evidence that within ten minutes of the saidphone call, two police personnel reached the village. Hedenied that both, Nitin and his father were lying in front of hishouse while those two police personnel arrived. According tohim, several villagers had witnessed the incident. It is furtherin his evidence that there were no blood stains on the clotheson his person on account of shifting of his brother and father toa police vehicle. According to him, his hands were stainedwith blood. It is further in his evidence that those two policepersonnel, who had first reached the village had accompaniedhim in the police vehicle for taking his brother and father to thehospital. He told those two police personnel the incident inbrief and even gave names of two-three assailants. Headmitted to have told doctor at Government Hospital, Jamkhednames of two-three assailants. He admitted to have hadhidden himself in the house due to fear of the assailants.49.Another eye witness, P.W.8 – Kalyan is the brotherof deceased Nitin and son of deceased Asaram. It is in hisevidence that on the given day by 06:00 in the morning, Nitinand he himself had gone to answer nature’s call. They were inthe field of Hanumant and Mahadev Hulgunde. Both of them Criminal Appeal No.424/2018 with :: 41 ::heard noise from the side of their house. He, therefore,rushed to his house and saw Mahadev, Shahaji, Sukhdeo andDada were holding iron rods. Rajendra, Raghunath and Kailaswere armed with wooden logs. Sandip, Somnath and Malhariwere armed with sticks. All of them rushed to Nitin and beathim up mercilessly. It is further in his evidence that 25-30other persons also came there. His mother intervened to saveNitin. Appellants – Mahadev and Raghunath assulted her.According to him, he saw the incident while he was atTamarind tree. It is further in his evidence that the assailantsthen rushed towards the house. Then he went to Nitin and hismother. He took them to the house of one Jayram Hulgunde(Jayram not examined). It is further in his evidence that P.W.5Bapurao came there. Police personel arrived thereafter. Theappellants then ran away. The police personnel called thepolice vehicle. The injured were first taken to the GovernmentHospital, Jamkhed and then were being taken to Ahmednagar.On the way, both, his father and brother passed away.50.In response to the questions put to him on behalf ofAccused Nos. 1, 2 and 4, it has come in his evidence that hetold the police about arrival of 25-30 persons. He also told thepolice that he watched the incident while standing at Tamarind Criminal Appeal No.424/2018 with :: 42 ::tree. The questions put to him and answers thereof appearingin paragraph No.7 of his cross-examination are all found to beomissions in his police statement. We, however, do not findthem to be so material. It was specifically suggested to himthat he became angry when the assailants were beatingNitin. (Pl. read our view on Page No.44). He did not raiseshouts to secure presence of nearby persons to save Nitin.According to him, he did not raise shouts due to fear. It isfurther in his evidence that clothes on his person were stainedwith blood when he brought Nitin to the house of HanumantHulgunde. It is further in his evidence that he and Bapuraotook Nitin to the place whereat their father was lying. Headmitted to have been an accused in a criminal case ofbeating. According to him, it is a false case lodged by oneSudam Bahir. According to him, Sachin Bahir was also one ofthe assailants.51.In response to the questions put to him during hiscross-examination on behalf of Accused Nos.3, 5, 6 and 15, itwas suggested that he and Nitin had gone in two differentdirections, for answering nature’s call. On the fateful day hedid not go to the police station. Criminal Appeal No.424/2018 with :: 43 ::52.P.W.7 – Bhingardive and P.W.13 – Bade were thepolice personnel, who reached the village in response to thedirections given by police station officer after a phone call wasreceived. It is in their evidence that they saw both, Nitin andAsaram (deceased) lying on the ground. Both had sufferedsevere injuries. They were unconscious. Gayabai had alsosuffered injuries to her left hand. It is in the evidence of P.W.7Bhingardive that they called for a police vehicle, wherein theinjured were shifted, first to the Rural Hospital, Jamkhed.53.In the cross-examination of P.W. 7 – Bhingardive, ithas come on record that there were some complaints againstboth the deceased. The complaints were made by some of thevillagers and even some accused as well. When he reachedthe village, he saw nobody at the place except both thedeceased, Gayabai and her daughter. He did not accompanythe injured to the Civil Hospital, Ahmednagar.54.During cross-examination of P.W.13 – Bade he toldthat both, Kalyan and Bapurao had told him the names of theassailants while he reached the village. He even conveyed thenames of assailants to P.I. Patil same day. Both the injuredwere lying near their house. Even Gayabai was also there. Criminal Appeal No.424/2018 with :: 44 ::He did not notice blood stains on the clothes on the person ofKalyan and Bapurao. His police statement is silent to recordthat he stated to have shifted the injured to the hospital withthe assistance of both, Kalyan and Bapurao.55.P.W.14 – Sanjay’s evidence suggests that he wasin-charge Police Inspector of Jamkhed Police Station during14th February, 2012 to 07th June, 2014. By 06:00 in themorning of 12th May, 2014 he received a phone call from P.W.5Bapurao (informant) informing him that incident of violentbeating took place at Katewadi. On his request, he sent policepersonnel and even poice vehicle to village Katewadi. Thedeputed police personnel were none other than P.W.7Bhingardive and P.W.13 Bade. It is further in his evidence thathe recorded the F.I.R. as narrated by P.W.5 Bapurao and thenregistered the crime. He referred to the F.I.R. (Exh.169). It isfurther in his evidence that he paid visit to Katewadi and drewscene of offence panchanama (Exh.145). He received bloodstained clothes delivered by the Head Constable Deokar. It isfurther in his evidence that he arrested the accused persons.Some of the accused persons made disclosure statements,pursuant to which sticks and iron rods came to be seizedunder the panchanama (Exh.147 to 154, 157 to 166). His Criminal Appeal No.424/2018 with :: 45 ::evidence further indicates that he deputed a police personnelto submit said muddemal to Forensic Science Laboratory,Nashik (‘F.S.L., Nashik’). He then referred to C.A. reports(Exh.206 and 207).56.In response to the questions put to him duringcross-examination, it has been brought on record that therewas no cognizable offence registered against any of theaccused during his tenure at Jamkhed Police Station. Hedenied to have instructed the Police Station Officer not toregister the F.I.R. until he reached the police station. He couldnot offer any explanation as to why services of same panchas(P.W.3 and P.W.4) were availed for recording memorandumstatements. He even admitted to have not shown seizedarticles to the medical officer to seek his opinion as to whetherthe injuries on the person of the deceased were possible bythe assault therewith. According to him, when P.W.5 Bapuraomade him a call, he (P.W.5) did not relate him names of theassailants.57.P.W.15 – Deepak Kumar did some part ofinvestigation and filed supplementary charge-sheet againstaccused – Sandip Bahir. Criminal Appeal No.424/2018 with :: 46 ::Circumstantial evidence in the nature of recovery ofweapons allegedly used in assaulting the deceased andthe injured :-58.P.W.3 – Shantinath testified that on 20th May, 2014he was called by P.W.7 – Bhingardive. Another panch RaviSapkal was also called. In their presence accused –Raghunath Bahir made a statement that he would produce thewooden log which was kept by him on the wall of kitchenbelow the roof. His statement was recorded. He put histhumb impression. He and other panch too signed the same.It is at Exhibit 147. Then Raghunath took them to his house atKatewadi Phata. He produced a wooden log kept on a halfconstructed wall in the kitchen. Same was seized underpanchanama (Exh.148).59.P.W.3 - Shantinath identified Uddhav Bahir forappellant Raghunath Bahir (wrong identification), who madedisclosure statement (Exh.147).60.It is further in his evidence that on the same daySukhdeo Bahir made similar statement that he would take outiron rod kept by him at a corner of his room. His statementwas recorded. All of them signed the same. It is at Exhibit149. Sukhdeo then took them to his room and took out the Criminal Appeal No.424/2018 with :: 47 ::iron rod. It was seized under panchanama Exh.150. He,however, expressed his inability to identify Sukhdeo, whomade the disclosure statement.61.It is further in his evidence that again on 22nd May,2014 both of them went to police station. Malhari Bahir madea disclosure statement that he would produce the stick kept inthe cattle shed. The statement was recorded. All of themsigned the same. Malhari then took them to the cattle shed atKatewadi and took out stick. Same was seized underpanchanama. He identified Malhari before the Court.62.It is further in his evidence that on the same dayi.e. on 22nd May, 2014 Somnath Bahir made a disclosurestatement that he would produce the wooden stick kept by himin the passage between the roof and wall. His statement wasrecorded (Exh.153). All of them signed the same. Somnaththen took them to his house at Katewadi and then took out thestick. It was seized under panchanama Exhibit 154. Heidentified Somnath before the Court.63.During cross-examination of this witness, it hascome on record that he is the cousin of the informant, P.W.5Bapurao. He also admitted that another panch witness was Criminal Appeal No.424/2018 with :: 48 ::his relative. According to him, the articles seized in hispresence were available with any other farmers. His evidencefurther indicates that on the one and same day i.e. 20th May,2014, they paid visit to one and the same house twice inrespect of two different disclosure statements.64.P.W.4 – Suresh is another panch witness to thedisclosure statement made by the accused/appellant. It is inhis evidence that on 18th May, 2014, appellant – Mahadevmade a disclosure statement that he would produce an ironrod. His statement was recorded vide Exhibit 157. He andanother panch witness – Shivaji Sapkal signed the same. It isfurther in his evidence that Mahadev, police personnelsalongwith panchas then went to his house and took out theiron rod from the hut in front of his house. It was seized underpanchanama Exhibit 158. He identified appellant – Mahadev,but failed to identify the iron rod seized pursuant to thedisclosure statement.65.It is further in his evidence that then they returnedto police station. Thereafter accused – Dada made adisclosure statement of the place where the iron rod wasplaced. His statement was recorded vide Exhibit 159. He then Criminal Appeal No.424/2018 with :: 49 ::took all of them to his residence and took out the iron rod. Itwas seized under panchanama Exhibit 160. The witness,however failed to identify accused – Dada and even the article,iron rod.66.It is further in his evidence that police again askedboth of them to remain present at the police station on 21stMay, 2014. Accordingly, they attended the police station.Accused – Shahaji made a disclosure statement that he wouldproduce iron rod kept at his house. The statement made byhim was recorded vide Exhibit 161. All of them signed thesame. Shahaji then took them to his house at Katewadi andtook out the iron rod. It was seized under panchanama Exhibit162. The witness did not identify Shahaji and even the iron rodseized pursuant to his disclosure statement.67.It is further in his evidence that on return to thepolice station, another accused – Rajendra made a disclosurestatement that he would point out the place whereat thewooden log is kept. His statement was recorded vide Exhibit163. All of them signed the same. Rajendra then took them tohis residence and took out the wooden log. It was seizedunder panchanama Exhibit 164. The witness, however did not Criminal Appeal No.424/2018 with :: 50 ::identify Rajendra and even the wooden log seized underpanchanama Exhibit 164.68.It is further in his evidence that on return to policestation, accused – Kailash gave a disclosure statement that hewould took out a wooden log kept at tin roof. His statementwas recorded vide Exhibit 165. He then took them to hishouse at Katewadi and took out the wooden log. It was seizedunder panchanama Exhibit 166. The witness, however did notidentify Kailash and even the wooden log. In his cross-examination, it has been brought on record that informant isthe son of his cousin. Another panch, Shivaji Sapkal is the realmaternal uncle of the informant. He is the cousin of Shivaji.69.P.W.6 – Vijay was a Head Constable, who carriedmuddemal articles in sealed condition to F.S.L., Nashik on 25thMay, 2014. He gave evidence on the same lines. He placedon record acknowledgment receipt given by the officer ofF.S.L., Nashik, on the copy of forwarding letter (Exh.165)Cross-examination of this witness indicates that all themuddemal articles were kept in a cupboard of P.I. Patil.Jagdale, writer of P.I. Patil, handed over to him the same forbeing carried to F.S.L. Nashik. Criminal Appeal No.424/2018 with :: 51 ::APPRECIATION (Cr. Appeal No. 432/2018) :70.This appellant examined two witnesses in hisdefence to make out the case of alibi. According to him, on thegiven day he had carried onions from his field for sale inA.P.M.C., Solapur. D.W.1 – Ajinath testified that he transportedthe onions of appellant to Solapur. According to him, appellant– Sandip was in his company on 11th and 12th May, 2014.71.D.W.2 – Siddik claimed to be a businessman,trading in agricultural produce. It is in his evidence thatappellant – Sandip had sold him onions on 12th May, 2014.Sandip had come to him in a tempo. He paid Sandip a sum ofRs.72,672/-. A copy of the bill was tendered in evidence videExhibit 301.72.Cross-examination of this witness indicates thatoriginal receipt book was not tendered in evidence. Entirewriting in the bill except the date and signature of issuance ofthe bill is in English. The evidence of both these witnesseswould indicate that for village Katewadi, A.P.M.C., Ahmednagaris the nearer place. It is not known as to why the appellantSandip, preferred to take the onions to A.P.M.C., Solapurinstead of A.P.M.C., Ahmednagar. On pointed query by this Criminal Appeal No.424/2018 with :: 52 ::Court, learned counsel fairly admitted that the defence of alibiwas raised during trial and not from day one of the arrest ofthis appellant. In our view, the defence of alibi has not beenproved as has been expected by law.73.There is, however another reason for us to allowthis appeal. P.W.5 Bapurao, the informant had testified inparagraph 3 of his examination-in-chief that while his fatherwas being assaulted by Mahadev, Shahaji, Sukhdeo, Malhariand Dada, Sandip (appellants) along with Balu, Ashok, Pinu @Kishor and Raghunath (underlined accused since acquitted)and some other 25 -30 in number were there and all of thembeat up his father. Neither Sandip nor those who have beenacquitted (the above 4) were alleged to have been armed withany kind of weapon. All those, namely who were said to be inthe company of Sandip, have been acquitted of offence ofcommitting murder of Asaram.74.The Apex Court, in case of Javed Shaukat AliQureshi Vs. State of Gujarat, 2023 (12) Scale 568 observedin paragraph 19 as under :-“19.We have found that the case of accused no.2stands on the same footing as accused nos.1, 5 and 13 Criminal Appeal No.424/2018 with :: 53 ::acquitted by this Court. The accused no.2 must getthe benefit of parity. The principles laid down in thecase of Harbans Singh Vs. State of U.P. & Ors.,(1982) 2 SCC 101 will apply. If we fail to grant reliefto accused no.2, the rights guaranteed to accused no.2under Article 21 of the Constitution of India will beviolated. It will amount to doing manifest injustice.In fact, as a Constitutional Court entrused with theduty of upholding fundamental rights guaranteedunder the Constitution, it is our duty and obligation toextend the same relief to accused no.2. Therefore, wewill have to recall the order passed in the special leavepetition filed by accused no.2.”75.Same are the observations of the Apex Court incase of Ram Singh Vs. State of Uttar Pradesh, CriminalAppeal No. 206 of 2024, decided on 21st February, 2024. Ithas been observed in paragraph No.32 of the said judgmentas under :-“31.This Court in the case of Javed Shaukat AliQureshi, has held that when there is similar oridentical evidence of eye witnesses against twoaccused by ascribing them the same or similar role,the court cannot convict one accused and acquit theother. This Court clarified as under :15. When there is similar or identicalevidence of eye witnesses against twoaccused by ascribing them the same orsimilar role, the court cannot convict oneaccused and acquit the other. In such acase, the cases of both the accused will be Criminal Appeal No.424/2018 with :: 54 ::governed by the principle of parity. Thisprinciple means that the criminal courtshould decide like cases alike, and in suchcases, the court cannot make a distinctionbetween the two accused, which willamount to discrimination.” In view of the dictum in the aforesaid twoauthorities relied on by the learned Senior Counsel, theappellant Sandip is entitled for acquittal on the ground ofparity since those four namely Balu, Ashok, Pintu @ Kishorand Raghunath have been acquitted by the Trial Court.APPRECIATION (CRIMINAL APPEAL NO.424/2018 &456/2018)76. The incident took place little past 6.00 in themorning of 12/5/2014 at village Katewadi. The case isbased on two eye witnesses and circumstantial evidence inthe nature of land dispute being motive, and seizure ofweapons allegedly used by some of the appellants.Unfortunately, two deaths took place and one sufferedinjuries. They were from one and the same family. Hereboth the sons namely P.W.5 Bapurao and P.W.8 Kalyantestified on oath that Gayabai, after having lost her husbandand a young son, had not been keeping well. She was, Criminal Appeal No.424/2018 with :: 55 ::therefore, not examined as a witness. Her non-examinationas a witness in the case is, therefore, found us to be notprejudicial to the prosecution. It is also true that, thosewere Summer days. Number of villagers had witnessed theincident. None of them has been examined as a witness.77.We have to see whether the case is made out onthe basis of the evidence produced by the prosecution.MOTIVE :-78. Admittedly, there was a long standing disputeover agricultural lands bearing Gut Nos.187, 257 and 254between appellant Mahadev and some of the appellantsand original accused on one hand and deceased Asaramon the other. The said dispute dates back to 2002. It wasinitially in the nature of proceedings before the revenueauthorities. Ultimately, it reached the High Court. When theHigh Court observed the parties need to have their rightdecided in a civil suit, suit was filed in the Court atJamkhed. It is stated that, the suit was decreed in favour ofthe deceased. In between period, there were complaintsand cross-complaints against each others, lodged in thepolice station. The investigating officer P.W.14 Sanjay, Criminal Appeal No.424/2018 with :: 56 ::however, admitted that no cognizable offence wasregistered against any of the parties to the Sessions Case(No.265/2014) during his tenure of two years at JamkhedPolice Station.79.In our view, the dispute over the agriculturallands stated hereinabove was really not a motive. There isanother aspect of the matter to be motive to the incident.Admittedly, Asaram (deceased) sold 3 ½ acres of land inGut No.187 to one Yuvraj Jamdade in the year 2013 for aconsideration of sum of Rs.1,80,000/-. According to theappellants, the actual consideration amount was Rs.65Lakhs. The same was received by deceased Asaram. Theother co-owners of the said land did not allow Yuvraj toenter the land and cultivate the same. It was he, therefore,who was asking Asaram to pay back his entireconsideration amount. By the time the incident took place,name of Yuvraj had not been recorded in the revenuerecord of the 7/12 extract, pursuant to the sale deed. Itwas, therefore, suggested to the informant that the murderswere committed by none other than Yuvraj and his men.From the evidence on record, no one would readily buysuch a theory. It is a matter of common knowledge that Criminal Appeal No.424/2018 with :: 57 ::victims ordinarily do not spare the actual culprits andimplicate innocents. Moreover, there is nothing except thesuggestion.80.The appreciation of the evidence of P.W.5Bapurao would suggest that his presence at his residencehas not been disputed by the appellants. Admittedly, hisyounger brother Nitin (deceased) was scheduled to getmarried on 19/5/2014. P.W.5 Bapurao would reside alongwith his parents, P.W.8 Kalyan and Bapurao’s wife Supriyaetc. Nitin was serving with Agricultural Department atNasik. He had come to the village for his marriage. For thevery reason, his two sisters along with their respectivehusband and their children had also been to the house ofBapurao.81.The evidence of P.W.5 Bapurao would indicatethat, Nitin (deceased) and Kalyan (P.W.8) had left the housesome time before 6.00 in the morning to answer nature'scall. Suggestions given to the eye witnesses in their cross-examination indicate the said fact to have not been indispute. It was only suggested that both Nitin (deceased)and Kalyan (P.W.8) had gone in two different directions in Criminal Appeal No.424/2018 with :: 58 ::the field of Hulgunde. It is in the evidence of P.W.5 Bapurao(informant) that, on hearing commotion outside hisresidence, he came out to see what the matter was. Hesaw the appellants. According to him, appellant Mahadevwas armed with a pistol in one hand and iron rod in theother. Learned counsel for one of the appellants might beright in submitting that, had the appellant Mahadev reallybeen armed with a pistol, he would have shot his targetdead instead of inflicting number of blows. The appellantshave been acquitted of the offences punishable under theArms Act. 82.The evidence of P.W.5 Bapurao further suggeststhe appellants Shahaji, Sukhdeo and Dada were armedwith iron rods, appellant Malhari had in his hand woodenstick. It is further in his evidence that, Mahadev draggedhis father (deceased Asaram) towards temple. Closereading of evidence of both, P.W.5 Bapurao and P.W.8Kalyan would indicate that none of them claimed any of theappellants to have had entered their house, assaulted anyone in the house or dragged Asaram from the house. In ourview, therefore, conviction of the appellants for the offencespunishable under Section 452 read with Section 149 of the Criminal Appeal No.424/2018 with :: 59 ::Indian Penal Code is unsustainable.83.The evidence of P.W.5 Bapurao would furtherindicate that, after assaulting his father Asaram, theassailants went towards Nitin. He (Nitin) too was assaulted.When Nitin’s mother Gayabai intervened to save him,appellants assaulted Gayabai as well. 84.As per the case of the prosecution itself, Asaramwas murdered just outside his residence while Nitin waskilled in the field of Hunglude. There is evidence of P.W.8Kalyan to indicate him to have brought Nitin by the side ofhis father Asaram in front of the house. The evidence ofP.W.5 further indicates that, he first made a phone call onlandline of Police Station and then made a phone call to P.I.Sanjay (P.W.14). This evidence of P.W.5 Bapurao getsreinforced by the evidence of P.W.13 Babasaheb Bade andP.W.14 Sanjay. He, however, claimed to have made aphone call from the cell phone of Jairam Hulgunde. True,Jairam has not been examined. Non-examination of Jairamwould be of little consequence since in response to thephone call made by P.W.5 Bapurao, P.I. Sanjay (P.W.14)had directed P.W.7 Bhingardive and P.W.13 Bade to Criminal Appeal No.424/2018 with :: 60 ::immediately rush to the village. Evidence of both thesewitnesses indicate they did reach the village within 10-15minutes. The Police Station Officer had also directed themto go to the village and do the needful. True, their evidencewould indicate that, while they reached the village, nonewas present at or around the house of P.W.5 Bapurao.Both Asaram and Nitin were lying in severely injuredcondition by the side of each other. It is they (P.W.7 & 13)who had secured a police vehicle in which the injured wererushed first to Government Hospital at Jamkhed. On adviceof the Medical Officer, the injured were shifted to CivilHospital, Ahmedngar. On the way, both Asaram and Nitindied. They, therefore, returned to Jamkhed. P.W.5Bapurao was categorical to state to have had informed thePolice Inspector and those two police officials that theywere 2-3 assailants. This has been brought on recordthrough the cross-examination. The tenor thereof andevidence of P.W.5 Bapurao and P.W.8 Kalyan wouldindicate that P.W.5 Bapurao meant to say that there werenumber of assailants besides the figure 3, he stated toP.W.14 Sanjay and P.W.7 Bhindardive. The learned A.P.P.was right in contending that number of injuries on the Criminal Appeal No.424/2018 with :: 61 ::person of the deceased would indicate that it was anexercise of number of assailants. We are at one with hissubmissions. We do agree with his further submission thatCourt has to sift chaff from grain. Falsehood is to bedisengaged from truth.85.The evidence of P.W.5 Bapurao would furtherindicate that his residence did not have a window. He sawthe incident standing by the side of one of the walls of hisresidence. True, he admitted to have hidden himself in thehouse. His evidence, however, indicates that, when theincident commenced, he had come out of the house. Fromthe suggestions given to P.W.5 Bapurao, one cannot reachto the conclusion that from commencement of the incidenttill the assailants dispersed, P.W.5 Bapurao remained in hishouse. Such was not even the suggestion. When theincident takes place just outside the house, it was butnatural on the part of P.W.5 Bapurao to come out of thehouse and witness the same.86.The evidence of P.W.5 Bapurao further indicatesthat the assailants thereafter went towards Nitin. All ofthem assaulted Nitin. P.W.8 Kalyan claimed to be an eye Criminal Appeal No.424/2018 with :: 62 ::witness to the incident, wherein Nitin unfortunately died. Itis in the evidence of P.W.8 Kalyan that he saw the incidentby hiding himself behind a tamarind tree. He saw Mahadev,Shahaji, Sukhdeo and Dada (appellants) armed with ironrods. Rajendra, Raghunath, Kailas held wooden logs.Sandip, Somnath, Malhari were armed with sticks. All ofthem beat up Nitin mercilessly. Mahadev and Raghunathbeat up his mother (Gayabai) when she intervened to saveNitin. The injuries on the person of Gayabai indicate, shewas victim of the assault. It is further in his evidence that,he first took Nitin and mother to the house of one JairamHulgunde. He then brought Nitin just outside his residence.Two police personnel thereafter first came and then a policejeep arrived. Rest of his evidence as regards taking theinjured to the hospital and bringing them back after havingfound two of them to be dead, is consistent with theevidence of P.W.5 Bapurao.RECOVERY OF ARTICLE :-87.P.W.3 Shantinath and P.W.4 Suresh are thewitnesses in whose presence the concerned appellantsmade disclosure statements, pursuant to which the sticks Criminal Appeal No.424/2018 with :: 63 ::and iron rods came to be seized. P.W.3 is a witness todisclosure statement by Raghunath and Sukhdeo on 20thmay and disclosure statement by Mahlari and Somnath on22nd May. Evidence of this witness indicates he identifiedUddhav Bahir for Raghunath who allegedly madestatement, pursuant to which a stick came to be seized.The disclosure statement made by these 4, pursuant towhich the articles came to be seized, find place at Exhs.147to 154. This witness did not identify appellant Sukhdeobefore the Court as one to have made a disclosurestatement. First two disclosure statements made byRaghunath and Sukhdeo respectively were dated 20th Maywhereas the next two made by appellants Malhari andSomnath were dated 22nd May.88.Similar is the case of P.W.4 Suresh Sakpal. Hisevidence indicates that, on 18th May, the appellant Mahadevand Dada made disclosure statement (Exhs.157 and 159),pursuant to which iron rods came to be seized underpanchanamas (Exhs.158 and 160). This witness dididentify Mahadev, but could not identify the iron rodrecovered pursuant to his disclosure statement. So far asregards disclosure statement made by appellant Dada is Criminal Appeal No.424/2018 with :: 64 ::concerned, this witness neither identified Dada before theCourt nor did he identify the iron rod allegedly recoveredpursuant to the disclosure statement made by Dada.89.His evidence further indicates that, on 21/5/2014,appellants Shahaji, Rajendra and Kailas made disclosurestatements (Exhs.161, 163 and 165 respectively), pursuantto which iron rods and wooden logs came to be seizedunder panchanamas (Exhs.162, 164 and 166 respectively).This witness did not identify Shahaji, Rajendra and Kailasbefore the Court nor could he identify the articles seizedpursuant to the disclosure statement made by thesepersons.90.The evidence of investigating officer Sanjay(P.W.14) in regard to the disclosure statements made by theaforesaid appellants and recovery of iron rods and stickspursuant thereto is general in nature. We do not subscribeto the submissions made by learned A.P.P. that we have tosee the recovery of articles and not the identity of thepersons. If we agree with his submissions, then there wouldbe a mix up of evidence. In case of one of the appellants,he allegedly made a statement that he would take out stick Criminal Appeal No.424/2018 with :: 65 ::from his residence while he took it out from a cattle shed infront of the house. Admittedly, all these articles are easilyavailable with the farmers. It is true, the C.A. reportsindicate some of the seized articles borne human bloodwhile others borne blood of blood group of either of thedeceased Asaram and/ or Nitin.91.Admittedly, both P.W.3 Shantinath and P.W.4Suresh were very close relations of the informant. It is notknown as to why the investigating officer availed theirservices for all the disclosure statements and recoveriesmade pursuant thereto. The investigating officer did notoffer any explanation in that regard. For this reason, andfor the fact that these witnesses either did not identify theappellants who made the disclosure statements or couldnot identify the articles seized pursuant to their respectivedisclosure statements, we would not like to place muchreliance on the evidence of the C.A. reports relating to theseized articles and the basic evidence in that regard in thenature of disclosure statement and consequentialrecoveries.92.In case of Ramanand alias Nandlal Bharti Vs. Criminal Appeal No.424/2018 with :: 66 ::State of Uttar Pradesh (AIR 2022 SC 5273), the ApexCourt held :-“53.If, it is say of the investigating officer thatthe accused appellant while in custody on hisown free will and volition made a statement thathe would lead to the place where he had hiddenthe weapon of offence along with his bloodstained clothes then the first thing that theinvestigating officer should have done was tocall for two independent witnesses at the policestation itself. Once the two independentwitnesses arrive at the police station thereafterin their presence the accused should be asked tomake an appropriate statement as he may desirein regard to pointing out the place where he issaid to have hidden the weapon of offence.When the accused while in custody makes suchstatement before the two independent witnesses(panch witnesses) the exact statement or ratherthe exact words uttered by the accused shouldbe incorporated in the first part of thepanchanama that the investigating officer maydraw in accordance with law. This first part ofthe panchanama for the purpose of Section 27of the Evidence Act is always drawn at thepolice station in the presence of the independentwitnesses so as to lend credence that a particularstatement was made by the accused expressinghis willingness on his own free will and volitionto point out the place where the weapon ofoffence or any other article used in thecommission of the offence had been hidden.Once the first part of the panchanama iscompleted thereafter the police party along withthe accused and the two independent witnesses(panch witnesses) would proceed to theparticular place as may be led by the accused.If from that particular place anything like theweapon of offence or blood stained clothes or Criminal Appeal No.424/2018 with :: 67 ::any other article is discovered then that part ofthe entire process would form the second part ofthe panchanama. This is how the law expectsthe investigating officer to draw the discoverypanchanama as contemplated under section 27of the Evidence Act. . . . . . .”(Underlined is our’s)93.Moreover, the evidence of the investigatingofficer in regard to the discovery statement and recoverypursuant thereto is very general in nature. In paragraphno.54 of the judgment in case of Ramanand Bharti (supra),it has been observed :-“54.The reason why we are not ready or ratherreluctant to accept the evidence of discovery isthat the investigating officer in his oral evidencehas not said about the exact words uttered bythe accused at the police station. The secondreason to discard the evidence of discovery isthat the investigating officer has failed to provethe contents of the discovery panchanama. . . . ”(Underlined is our’s)94.It is reiterated that, we are conscious of the factthat principle of Falsus in Uno Falsus in Omnibus is notapplicable in India. However, when truth and falsehood aremingled with each other and are inseparable, a benefit ofdoubt is required to be given to the accused. It is in humannature to exaggerate an incident. It also appears in some Criminal Appeal No.424/2018 with :: 68 ::cases that along with actual culprits, an innocent isimplicated. Possibility of same to have happened in thiscase could not be ruled out, except in case of theappellants namely Mahadev Gaghininath Bahir, Rajendra@ Rajesh Mahadev Bahir and Sukhdeo Raghunath Bahir.We have more than one reason to say so. First of suchreason is the fact that the F.I.R. was lodged against 32known and 4/5 unknown persons. 9 of the 32 accusednamed in the F.I.R. were female (wives of some of theappellants). The same indicates the informant’s instinct toimplicate one and all with whom his family was atloggerheads. It is, however, not the fact that all thosenamed as accused in the F.I.R. were defendants in the suit.Only 8 of the 32 named in the F.I.R. were the defendants.Be that as it may. In the F.I.R., the informant alleged theappellants to have been armed with weapons like pistol,sickle, scythe, sword, axe etc. To our mind, when themortal remains of the deceased were subjected to postmortem examination and it was revealed that they wereassaulted with hard and blunt objects, the informant mighthave changed his version before the Court attributing themwith weapons which were hard and blunt objects. True, he Criminal Appeal No.424/2018 with :: 69 ::gave a supplementary statement as well. P.W.8 Kalyanmight have given statement suitable to the prosecutioncase since his statement was recorded on the following day.His evidence would indicate that, the accused were 32 innumber besides 4/5 unknown persons. He too appears tohave named one and all with whom the family was not ongood terms. True, the Trial Court, on appreciation of theevidence in the case, convicted 10 and acquitted rest of theaccused persons except those who were absconding.Admittedly, neither the State nor the informant or P.W.8Kalyan has preferred appeal against their acquittal. Thereis one more startling fact, which indicate that one SachinBahir was also named as one of the accused/ assailants inthe F.I.R. The investigating officer found him to have beenin Mumbai on the given day. A report under Section 169 ofthe Cr.P.C. was, therefore, filed. The same appears to havenot been taken exception to.95.As such, the evidence of P.W.5 Bapurao andP.W.8 Kalyan indicate that they had lodged the F.I.R. andgiven statement before the police against 32 known and 4/5unknown persons. The main assailants were allegedlyarmed with sharp weapons. On post mortem, it was Criminal Appeal No.424/2018 with :: 70 ::realised the deceased to have suffered injuries with hardand blunt objects. They, therefore, might have changedtheir version before the Court. The fact, however, remainsthat, the presence of both these witnesses at their houseand even at the scene of offence has been made out andeven suggestions indicate the same to have not beendisputed. It is reiterated that, it is in human nature toexaggerate the version or paint the incident bright. Withactual culprits, some innocents are also involved. Here isthe case, however, that, the cross-examination of boththese witnesses conducted on behalf of the MahadevGaghininath Bahir (appellant No.1 in Criminal AppealNo.456/2018), Rajendra @ Rajesh Mahadev Bahir(appellant No.1 in Criminal Appeal No.424/2018) andSukhdeo Raghunath Bahir (appellant No.2 in CriminalAppeal No.456/2018) indicates that, it was specificallysuggested to both of them that they were angry on havingseen the accused assaulted Asaram, Nitin and Gayabai(here original accused Nos.1, 2 and 4). To be precise, thesuggestions are reproduced below :-“It is true to say that, I became very angrysince accused were beating my father andbrother.” Criminal Appeal No.424/2018 with :: 71 ::96. Same is the suggestion to P.W.8 Kalyan in para10, which reads as under :“It is true to say that, I became angry whenassaillants were beating Nitin. I did notraise shouts to gather nearby persons tosave Nitin.”“ हहमहणणहखरहआहहककआररपपममझयमवडडलमलनमव ”भमवमलमममरतहरतहमहणणनमपखणपरमगमवलरहरतर P.W.8 volunteered that, due to fear, he did notraise shouts. 97.Similar is the case as regards assault onGayabai. We have already observed above that, appellantMahadev had a strong motive to be after Asaram in view ofAsaram (deceased) to have sold 3 ½ acres of land to YuvrajJamdade a year before the incident. The appellants did notallow Yuvraj to enter the land. It is difficult to digest asuggestion that the incident was committed by Yuvraj andhis men and not by appellant Mahadev and those others onwhose behalf the aforesaid three suggestions were given.Since possibility of falsely implicating the other appellantscould not be ruled out, we propose to give them benefit ofdoubt. Criminal Appeal No.424/2018 with :: 72 ::98.It is reiterated that, there is no evidence toindicate in what words the appellants had abused and whogave threats to the lives of the victims. The evidence ofP.W.5 Bapurao is general in that regard. He testified thatthe assailants abused and gave threats. The same is takento have made in one voice. No abusive words have beenreproduced.99. Moreover, when the victims unfortunately died ofthe assault, the assailants could not have been convictedfor lesser offence of the very assault namely for the offencepunishable under Sections 323, 324 of the Indian PenalCode. To that extent, we are not in agreement with thefindings recorded by the trial Court. We also find the trialCourt to have exceeded its jurisdiction in imposing lifesentence in following words :-“1)Imprisonment for life shall mean tillthe end of their natural life.”100.The offence punishable under Section 302 of theIndian Penal Code prescribes punishment for offence ofmurder. Section 302 reads thus :- Criminal Appeal No.424/2018 with :: 73 ::“302. Punishment for murder:- Whoever commitsmurder shall be punished with death of imprisonmentfor life, and shall also be liable to fine.”101.In case of Ravinder Singh Vs. StateGovernment of NCT of Delhi (2024) 2 SCC 323, the ApexCourt observed :“Penal Code, 1860 – S.53 r/w S.43 – Sentence -Imposition of life imprisonment for a specifiedminimum non-remittable term – Reiterated, canbe imposed only by High Courts and SupremeCourt – Imposition of life imprisonment for aspecified minimum non-remittable term, held,not prohibited under I.P.C. or Cr.P.C., but thepower to impose such a modified punishment,held, can only be exercised by High Court and inthe event of further appeal, by Supreme Court,and not by any other court in the country.”102.We, therefore, withdraw the words, “lifeimprisonment shall mean till the end of their natural life.103.For all the aforesaid reasons, the appeals partlysucceed. Hence the order :O R D E R(i)Criminal Appeal No.432/2018 is allowed. The Criminal Appeal No.424/2018 with :: 74 ::impugned order of conviction and consequential sentencespassed against the appellant Sandip s/o Ganpat Bahir ishereby set aside. He stands acquitted of the offences forwhich he was convicted under the impugned order. He beset at liberty forthwith if not required in any other case. Fineamount, if paid, be refunded to him.(ii)Criminal Appeal Nos.424/2018 and 456/2018 arepartly allowed. Appellants Mahadev s/o Gahininath Bahirand Sukhdeo s/o Raghunath Bahir (appellants No.1 and 2in Criminal Appeal No.456/2018) are hereby convicted forthe offence punishable under Section 302 read with Section149 of the Indian Penal Code i.e. for committing murder ofAsaram and Nitin and, therefore, they are sentenced tosuffer imprisonment for life. (Trial Court has not passedseparate sentence for murder of Asaram and Nitin).(iii)The appellant No.1 Rajendra @ Rajesh MahadevBahir (in Criminal Appeal No.424/2018) is convicted for theoffence punishable under Section 302 read with Section149 of the Indian Penal Code i.e. for committing murder ofNitin Asaram Bahir and, therefore, his conviction andsentence for offence punishable under Section 302 read Criminal Appeal No.424/2018 with :: 75 ::with Section 149 of the Indian Penal Code andconsequential sentence given in clause (2) of the impugnedorder to stand unaltered.(iv)The words “Imprisonment for life which shall mean tillthe end of their natural life” appearing in clause (1) of theimpugned order is hereby withdrawn.(v)There is no interference with the order directing thepayment of fine of Rs.15,000/- (Rupees fifteen thousand) byeach of them and consequential sentence in default ofpayment of fine.(vi)The order of conviction and consequential sentencesrecorded as against appellant No.3 Shahaji @ Shahadeos/o Raghunath Bahir, appellant No.4 Malhari s/o KailasBahir and appellant No.5 Dada @ Ashok s/o Kisan Bahir (inCriminal Appeal No.456/2018) and appellant No.2Raghunath s/o Sahebrao Bahir, appellant No.3 Kailas s/oTatyaba Bahir and appellant No.4 Somnath s/o UddhavBahir (in Criminal Appeal No.424/2018) is hereby set aside.They stand acquitted of the offences for which they wereconvicted and consequently sentenced by the Trial Court.They be set at liberty forthwith if not required in any other Criminal Appeal No.424/2018 with :: 76 ::case. Fine amount, if paid, be refunded to them.(vii)Conviction of appellant Mahadev s/o Gahininath Bahirand consequential sentence for offence punishable underSection 325 read with Section 149 of the Indian Penal Codefor assaulting Gayabai to stand unaltered.(viii)Conviction of accused No.1 Mahadev GahininathBahir, accused No.2 Rajendra @ Rajesh Mahadev Bahirand accused No.4 Sukhdeo Raghunath Bahir andconsequential sentence imposed by the Trial Court for theoffences punishable under Sections 143, 147, 148 (clauses3, 4 and 5 of the impugned order) to stand unaltered.(ix)All the substantive sentences shall run concurrently.(x)Rest of the order, convicting the appellants Mahadevs/o Gahininath Bahir, Sukhdeo s/o Raghunath Bahir andRajendra @ Rajesh Mahadev Bahir and consequentialsentences stands set aside. (xi)On deposit/ recovery of the entire fine amount, thesame shall be paid to injured Gayabai Bahir who lost herhusband and a son, towards compensation. Clause 19 of Criminal Appeal No.424/2018 with :: 77 ::the impugned order stands modified accordingly. (xii)Clause No.20 of the order impugned herein standsunaltered. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Criminal Appeal No.424/2018 with :: 18 ::crime in question.14.So far as regards appellant Sandip (in CriminalAppeal No.432/2018) is concerned, the learned counselwould submit that, the evidence against Sandip and 4others (namely Balu, Ashok, Pintu and Raghunath Kadam)was common. Those others have been acquitted. Theappellant Sandip, therefore, deserves to be acquitted on theground of parity. Learned Senior Counsel relied on thejudgments of Apex Court in following cases :(1)Ram Singh Vs. The State of U.P.(Criminal Appeal No.206/2024)(2)Javed Shaukat Ali Qureshi Vs. State of Gujarat(Criminal Appeal No.1012/2022)15.On the given day, Sandip was at Solapur to sellonions in A.P.M.C. Market. As such, it is defence of alibi. Adriver of a tempo in which onions were transported and thetrader in the A.P.M.C. Market, who purchased the onionwere examined as defence witnesses on behalf of theappellant Sandip.16.To establish the charge, the prosecutionexamined 15 witnesses and produced in evidence certain Criminal Appeal No.424/2018 with :: 19 ::documents. The Trial Court, on appreciation of the same,convicted the appellants who are before us in these threeappeals and acquitted rest of the accused except those,against whom evidence was recorded under Section 299 ofthe Cr.P.C. 17.Heard. Mr. Joydeep Chatterji, learned counselfor the appellants would submit that, true, two innocentpersons have lost their lives. He would, however, submitthat, the F.I.R. was lodged against known 32 persons andsome unknown persons. In the F.I.R., the assailants werealleged to have wielded sharp edged weapons. Afterhaving realised the deceased to have suffered injury withhard and blunt objects like sticks and iron rods, theinformant gave a supplementary statement so as to suit theprosecution case. The learned counsel reminded us of theprinciple that no innocent person shall be convicted.According to him, the villagers had gathered while theincident took place. None of them has been examined as awitness. The case is based on two eye witness account,P.W.5 Bapurao and P.W.8 Kalyan. They are the interestedwitnesses. They did not intervene. The same suggeststhem to have not witnessed the incident. Gayabai has not Criminal Appeal No.424/2018 with :: 20 ::been examined for the reasons best known to theprosecution. No documentary evidence was placed onrecord to show that she was not keeping well and thereforeunable to give evidence. P.W.5 Bapurao admittedly was inhis house. The house admittedly did not have a window.His evidence that he witnessed the incident is therefore asheer lie. Same is about the case of other eye witness,P.W.8 Kalyan. He too did not intervene to save Nitin. Whenthe informant Bapurao had made a phone call to the policestation, it is not known as to why the said report was notrecorded as F.I.R. P.W.5 Bapurao in the said report hasstated involvement of 2 or 3 persons only. According tolearned counsel, even the F.I.R. was lodged late. Thepersons named in the F.I.R. were the defendants in the civilsuit. Even their chronological order as defendants in thesuit was not changed as accused in the F.I.R.18.The learned counsel would further submit that,the panch witnesses to the seizure of sticks and iron rodswere the close relations of the informant. These witnesseseven did not identify the accused who made the disclosurestatements. There was no evidence to indicate that thearticles were seized when taken charge of and labels Criminal Appeal No.424/2018 with :: 21 ::bearing signatures of panch witnesses were affixedthereon. It is not known as to why the seized articles werekept in the cupboard of the investigating officer instead ofplacing into custody of the Muddemal Clerk. The learnedcounsel has given a detailed chart and notes of hissubmissions to ultimately submit the prosecution to havefailed to bring home the charge beyond reasonable doubt.19.Submissions made by learned Senior CounselMr. V.D. Sapkal have already been adverted to above.20.Learned counsel Mr. Devakate reiterated thesubmissions made by learned counsel Mr. JoydeepChatterji and learned Counsel Mr. Gopal P. Pande.21.The learned A.P.P would, on the other hand,submit that there was a long standing dispute between thefamily of the informant and that of the appellant Mahadevand others named in the F.I.R. A civil suit was pending,besides revenue proceedings. Complaints against eachother were lodged with the concerned Police Station. Ourattention has been adverted to the reports lodged bydeceased Asaram, wherein he had expressed hisperception of threats to his life at the hands of appellant Criminal Appeal No.424/2018 with :: 22 ::Mahadev and others. According to the learned A.P.P., it is aghastly murder. The informant being son of the deceased,had the first duty to attend to the injured and extend thembest of medical treatment. It is only after passing away ofhis father and brother, he reached the police station andlodged the report. According to the learned A.P.P., as such,there is no delay in lodging of the F.I.R. He would furthersubmit that, pursuant to the disclosure statement made bythe appellants, the weapons used in commission of thecrime have been seized. Our attention was adverted toC.A. reports to indicate the seized articles to have borneblood stains of the blood group of the deceased. Accordingto him, now-a-days no independent person comes forwardeither to act as panch or give evidence. No fault therefore,could be found with the investigating officer selecting thedistant relations of the informant to act as panch witnesses.He was even not in the know that the panch witnesses werethe relations of the informant. The presence of both, theinformant and Kalyan has not been disputed. The incidenttook place in the early morning. Both of them were,therefore, present at their residence. Had they intervened,both of them would have met with same fate as that of the Criminal Appeal No.424/2018 with :: 23 ::deceased. Gayabai, being mother, did dare to intervene tosave her son. She too was assaulted. As a result of deathof her husband and son, who was to get married within 8days of the incident, she was not in the mental frame andeven was not well to come to the Court to give evidence.Learned A.P.P. relied on the judgment of the Apex Courtcase of Mani @ Udattu Man & Ors. Vs. State Rep. byInspector of Police [2009 CriLJ 2268].22.The learned counsel for the informant reiteratedthe submissions made by learned A.P.P. He too relied onthe judgment of the Apex Court in case of Mani (supra) tosubmit that the case was based on eye witness account.The same has been corroborated by circumstantialevidence in the nature of recovery of the weapons pursuantto the disclosure statements made by the appellants. Thelearned counsel ultimately urged for dismissal of theappeals.23.Before adverting to the evidence on record, letus give an overview of the number of witnesses examinedon particular point/ evidence (Reproduced from theimpugned judgment). Criminal Appeal No.424/2018 with :: 24 ::Sr.No.WitnessNo.Exh.No.Name of the witnessParticulars123451P.W.1131Moiz Tayyab ShaikhPanch (clothes seizure)2P.W.2 144Babasaheb Namdeo PotharePanch (spot)3P.W.3146Shantinath Ambadas SapkalPanch (seizure of wooden log/iron rod4P.W.4156Suresh Raghunath SapkalPanch (seizure of ironrods/ wooden logs5P.W.5168Bapu Asaram BahirComplainant6P.W.6174P.C. Vijay Abasaheb KalokheMuddemal sent to Forensic Lab7P.W.7 176Head Constable - Ramesh Dhondiram BhingardiveStatement8P.W.8178Kalyan Asaram BahirEye witness9P.W.9183Anil Haribhau DeokarP.S.O./ Witness on inquest panchanamas (184, 185)10P.W.10187Sanjay Nivrutti DhiwarP.S.O.11P.W.11193Dr. Sanjay Kisanrao MundeMedical Officer – P.M. Notes12P.W.12196Dr. Yuvraj Haribhau KharadeMedical Officer- P.M.Notes + Injury certificate of injured Gayabai13P.W.13198P.C. Babasaheb Ajinath BadeWitness on spot- shifted deceased and injured to the hospital14P.W.14199P.I. Sanjay Gangadaharrao PatilInvestigating Officer15P.W.15291P.I. Dipakkumar Chudaman WaghmareSupplementary Charge-Sheet of Accused No.28 Sandip Bahir filed Criminal Appeal No.424/2018 with :: 25 ::24.Admittedly, both Asaram and Nitin met withhomicidal death on 12/5/2014. Dr. Sanjiv (P.W.11)conducted autopsy on the mortal remains of both of them.Post mortem report of both, deceased Asaram and Nitinfind place at Exh.194 and Exh.195 respectively. Theevidence of Dr. Sanjiv indicate the following injuries were onthe person of Asaram :-1)Lacerated wound over scalp over right parietalregion 07 x 01 cm. x scalp deep, oblique.2)Lacerated wound over scalp over frontal region, 05x 01 cm. x scalp deep, oblique.3)Multiple contusions over Rt. Shoulder & Rt. Arm 06in number (i) 2 x 2 cm. (ii) 3 x 3 cm. (iii) 5 x 3 cm. (iv)6 x 3 cm. (v) 5 x 4 cm. (vi) 7 x 5 cm.4)Multiple contusions over Rt. Forearm, 02 innumbers. (i) 8 x 2 cm. (ii) 5 x 2 cm.5)Contused abrasions over Lt. Shoulder, 02 in number(i) 3 x 2 cm., (ii) 2 x ½ cm.6)Contused abrasion over left arm, 1 ½ x 1 ½ cm.7)Contusions over Lt. Forearm, 03 in numbers. (i) 06 x03 cm. (ii) 5 x 3 cm. (iii) 4 x 3 cm.8)Crush injury over lower part of Lt. Forearm 2 ½ cm.x 1 cm. x bone deep.9)Compound fracture of lower part of radius & ulna ofLt. Forearm beneath injury No.8. Criminal Appeal No.424/2018 with :: 26 ::10)Crush injury over lower part of left leg 4 x 2 cm. xbone deep11)Compound fracture of lower part of Lt. Tibia fibula.12)Lacerated wounds over upper part of Lt. Leg 02 innumbers (i) 2 x ½ cm. x 1 cm. (ii) 2 ½ x ½ x 1 cm.(iii) 1 ½ x ½ x 1 ½ cm.13)Lacerated wounds over Rt. Leg, 03 in number (i) 1½ x ½ cm. x 1 cm. (ii) 2 x 1 x 1 cm. (iii) 1 ½ x ½ x 1½ cm. 14)Crush injury over lower part of Rt. Leg. 2 x 1 cm. xbone deep.15)Compound fracture of Rt. Tibia fibula beneath injuryNo.14.16)Depressed fracture of Rt. Parietal bone beneathinjury No.1.17)Hematoma below the injury No.1. For the external injuries, suffered by thedeceased, one separate page was attached since columnNo.17 was very inadequate for those injuries. Thedeceased sustained internal injuries as haematoma overright parietal region and intra-cranial hemorrhage was alsopresent. These injuries were under the skull and wererecorded in column No.19. Again the doctor found fractureof right 3rd and 4th ribs. Hence those were mentioned incolumn No.20(a). The injuries at serial No.1 and 2mentioned in column No.17 correspond to injuries Criminal Appeal No.424/2018 with :: 27 ::mentioned on column No.19(iii). Again injuries at serialNo.16 and 17 in column No.17 correspond to injury No.1 inthe same column. P.W.11 Dr. Sanjiv noticed following injuries onthe person of Nitin :-1)Lacerated wound over middle part of parietal region,03 ½ x 1 cm. x scalp deep, oblique.2)Lacerated wound over scalp over Lt. Parietal region,04 x 1 cm. x scalp deep, oblique.3)Haematoma under injury No.14)Haematoma under injury No.25)Depressed fracture of parietal bone beneath injuryNo.1.6)Depressed fracture of parietal bone beneath injuryNo.2.7)Contused abrasion over right arm 2 x 2 cm.8)Contused abrasion over Rt. Forearm 2 ½ x 2 ½ cm.9)Multiple contused abrasions over left arm, 03 innumbers (i) 5 x ½ cm. (ii) 4 x ½ cm. (iii) 3 x 2 cm.10)Contused abrasion (multiple) over Lt. Forearm 04 innumbers. (i) 2 x 1 cm. (ii) 1 x 1 cm. (iii) 2 x 2 cm. (iv)1 ½ x 1 ½ cm.11)Lacerated wounds over Lt. Leg, 04 in number (i) 3 x1 x 1 cm. (ii) 5 x 1 ½ x 1 ½ cm. (iii) 3 ½ x 3 ½ x 1 ½cm. (iv) 6 x 1 ½ x 1 ½ cm. Criminal Appeal No.424/2018 with :: 28 ::12)Lacerated wound over upper part of Rt. Leg 05 innumber (i) 3 x 1 x 1 cm. (ii) 4 x 1 x 1 ½ cm. (iii) 3 x 1½ x 1 ½ cm. (iv) 2 ½ x 1 ½ x 1 ½ cm. (v) 3 x 1 x 1cm.13)Contused abrasions (Multiple) over left thigh 06 innumbers. (i) 10 x 1 cm. (ii) 8 x 1 cm. (iii) 9 x 1 cm. (iv)7 x 1 cm. (v) 8 x 1 cm. (vi) 6 x 1 cm.14)Contused abrasions (multiple) over upper part ofback to left side, 05 in numbers. (i) 7 x 1 cm. (ii) 8 x 1cm. (iii) 9 x 1 cm. (iv) 6 x 1 cm. (v) 7 x 1 cm.15)Contused abrasions over middle part of back to leftside 02 in numbers. (i) 10 x 1 cm. (ii) 7 x 1 cm.16)Contused abrasions over upper part of back to Rightside and backside and right shoulder. 06 in numbers(i) 10 x 1 cm. (ii) 9 x 1 cm. (iii) 6 x 1 cm. (iv) 7 x 1 cm.(v) 8 x 1 cm. (vi) 5 x 1 cm.17)Contused abrasions over middle part of back, 04 innumbers. (i) 7 x 1 cm. (ii) 5 x 1 cm. (iii) 8 x 1 cm. (iv)6 x 1 cm. 25.P.W.11 Dr. Sanjiv found internal injuries asmentioned in Column No.19(iii). Those internal injurieswere haematoma over middle part of the parietal region andhaematoma over left parietal region intra-cranialhaemorrhage was also present. The injuries mentioned atserial No.1 & 2 in column No.17 were correspondinginjuries. 26.In his opinion, both Asaram and Nitin died due toshock due to intra-cranial haemorrhage due to injuries over Criminal Appeal No.424/2018 with :: 29 ::head and multiple injuries over body due to assault. Theinjuries were ante mortem and might have been possible byArticles No.12 and 17 to 25. 27.During his cross-examination, it has beenbrought on record that, no weal marks were noticed on theperson of both the deceased. The doctor also admitted tohave not been shown the alleged weapons by theinvestigating officer to solicit his opinion whether the injuriesfound on the person of the deceased were possible thereby.28.In view of post mortem report, we do not proposeto advert to of P.W.9 Anil’s evidence in relation to inquestpanchanama (Exh.184).29.P.W.12 Dr. Yuvraj Kharade examined Gayabai.On examination of Gayabai, he found contusion over leftforearm and tenderness over left side of chest. Her X-raywas taken. Then he found, she suffered fracture to leftradius ulna. The contusion was 3 x 2 cm. Both the injurieswere caused by hard and blunt object. The ages of theinjury were 0 to 6 hours, prior to the examination. Theinjuries were grievous in nature. Criminal Appeal No.424/2018 with :: 30 ::30.P.W.1 Moiz Shaikh is a witness to the seizure ofthe clothes of the deceased. Those clothes were handedover by the Medical Officer to P.C. Shivaji Kharat, who inturn delivered them to the concerned police officer, whoseized them under the panchanama (Exh.32).From his cross-examination, it has been broughton record that a whitener was applied and there was someoverwriting in the time of drawing of the said panchanama.It was also brought on record that the seized trouser did notbear blood stains. We do not find anything to have beenelicited from the cross-examination of P.W.1 Moiz Shaikh soas to be helpful to the defence.31.P.W.2 Baban is a panch witness to the scene ofoffence panchanama (Exh.145). His evidence indicatesthat the scene of offences were shown by the informantBapurao (P.W.5). The crime scenes were in front of thehouse of the informant and towards back side of theinformant’s house and third one in the field of Hulgunde.His evidence indicates the investigating officer to haveseized soil, blood mixed soil and stick of a Neem tree fromthe scene of offence. Criminal Appeal No.424/2018 with :: 31 ::32.From the cross-examination of this witness, ithas been brought on record that he was cousin of widow ofdeceased Asaram. Another panch of the scene of offencetoo was a distant relative. It has also been brought onrecord that informant Bapurao (P.W.5) was also present toinquest panchanama, which was drawn a few minutesbefore the scene of offence panchanama was drawn. Wedispel the contention of the defence that Bapurao (P.W.5)could not be presumed to be present for both thepanchanamas at one and the same time. Admittedly, theinquest was drawn at Government Hospital, Jamkhed 15minutes before the scene of offence panchanama wasdrawn. It is reiterated that, the distance between Jamkhedand Katewadi was not more than 7 Kms, for which traveltime shall not be more than 12 minutes.33.The question is, whether the appellants havecommitted murder of Asaram and Nitin. Whether they havevoluntarily caused hurt to Gayabai is also an additionalquestion.34.Eye witness Bapurao (P.W.5) (informant) testifiedthat, he would reside along with his parents, wife Supriya, Criminal Appeal No.424/2018 with :: 32 ::brother Kalyan at Katewadi. Nitin (deceased) was hisanother brother. He was serving with AgriculturalDepartment at Nasik. Nitin was scheduled to get marriedon 19/5/2014. His two sisters along with their respectivehusbands and children had therefore come to the village.35.It is further in his evidence that, Mahadev (A/1)was son of cousin of his father. There was dispute betweenhim and father of Bapurao (P.W.5) over agricultural land GutNos.280, 257 and 254. The said dispute was also withothers named in para 2 of his examination-in-chief. Theyare none other than some of the original accused before thetrial Court. It is further in his evidence that, a civil suit waspending between Mahadev Bahir, his father and others.The suit was decreed in favour of his father. The suit waspreceded by a litigation before the revenue authorities thathad reached up to High Court.36.In relation to the incident in question, he testifiedthat, it was early in the morning of 12/5/2014. All of hisfamily members including himself were asleep. They heardshouts outside their house. Hence they opened the door.Nitin (deceased) had left the house to answer nature's call. Criminal Appeal No.424/2018 with :: 33 ::Therefore, door of the house was just simply closed (notbolted from inside). It is further in his evidence that, whenthey came out of the house, he saw the appellant Mahadevwas armed with a pistol in one hand and iron rod in theother. Shahaji, Sukhdeo, Kisan too were armed with ironrods. Malhari was having a wooden stick with him.Mahadev dragged Asaram towards temple by threateninghim with a pistol. All of them were threatening and abusinghis father Asaram. They told Asaram that they would notallow him to cultivate the land. All of them indiscriminatelyassaulted Asaram with the weapons in their hands.37.It is further in his evidence that, by that time,Sandip (appellant in Criminal Appeal No.432/2018) andBalu, Ashok, Pintu, Raghunath (since acquitted) and someothers, 32 in number, were there. They too joined them inassaulting Asaram. It is further in his evidence that he wasthere while the incident was being committed.38.It is further in his evidence that, after assault onhis father Asaram, the assailants rushed towards Nitin inthe field of one Mahadev Hulgunde. His mother Gayabaifollowed them to rescue Nitin. She too was beaten up by Criminal Appeal No.424/2018 with :: 34 ::the assailants. After having assaulted Nitin, the assailantsagain came back to Asaram. Kalayn (P.W.8) took Nitin tothe agricultural field of Hanumant Hulgunde. He (BapuraoP.W.5) was watching the incident. It is further in hisevidence that, he did not intervene to save his father orbrother since the assailants were more in number andarmed with deadly weapons. His evidence further indicatesthat, he made a phone call, first to the police station andthen a cell phone call to Police Inspector. The last call wasmade from the cell phone of Jairam Hungunde (Jairam notexamined).39.The evidence of Bapurao (P.W.5) furthersuggests that, the assailants had gone back to Nitin. Nitinwas again assaulted. Then they (assailants) movedtowards him (Bapurao P.W.5). He, therefore, entered hishouse to save himself. The assailants disappeared when apolice vehicle reached the spot. Two police personnel hadreached before the police vehicle arrived. Both Asaram andNitin became unconscious. Mother had suffered fracture.The injured were first rushed to a Government Hospital, atJamkhed. After taking primary treatment there, on theadvice of the Medical Officer, they were being taken to Civil Criminal Appeal No.424/2018 with :: 35 ::Hospital, Ahmednagar. On the way at village Kada,movements of Asaram and Nitin stopped. They weretherefore taken to a private hospital at Kada. A MedicalOfficer there declared them dead. The dead bodies weretherefore, brought to Civil Hospital, Jamkhed for postmortem. Mother was being treated at the hospital. It was10.30 a.m. by then. He went to the Police Station to lodgethe F.I.R. (Exh.169). It is further in his evidence that, hisF.I.R. was not recorded immediately since the PoliceInspector had instructed the Police Station Officer not torecord the same until he reached the Police Station. AfterP.W.14 P.I. Sanjay came to the Police Station, the F.I.R.was recorded. It is at Exh.169.40.It is further in his evidence that, thereafter hewent back to hospital. He again joined the police on theirasking. He pointed out places whereat the offences tookplace. The police drew the scene of offence panchanamain his presence. It is further in his evidence that, he handedover the Police Inspector copies of the complaints (Exh.170to 173) lodged by his father against Mahadev and others. 41.It is further in his evidence that, his mother was Criminal Appeal No.424/2018 with :: 36 ::not keeping well due to untimely demise of her husbandand son Nitin. She, therefore, did not appear to giveevidence before the Court. 42.Bapurao (P.W.5) was subjected to a searchingcross-examination. He admitted to have had cell phone atthe relevant time. Appellants Rajendra and Mahadev wouldreside on Kharda Road. He admitted his house to have nowindow. His family owned 15 acres of land in Gut Nos.110,187, 189, 191 and 254. The appellants are his distantrelatives. Mahadev (A/1) sold some of the land in GutNo.257. The dispute between them started in 2002. 43.It is further in his evidence that, his father sold3 ½ acres of land in Gut No.187 to one Yuvraj Jamdhade inthe year 2013. The appellants were not allowing Yuvraj tocultivate the land. The dispute between the two familieswas over the land sold to Yuvraj. It is further in his evidencethat a police case was pending against him, his brother anddeceased father on account of beating up one SudamBahir. Sudam was indoor patient for 15 days. They werearrested in connection with the said case. The case waspending in Court, at Jamkhed.