Criminal Appeal No. 84 of 2019 · Bombaybench High Court
Case Details
2024:BHC-AUG:13434-DB Cri Appeal No.663 of 2019 and ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.84 OF 2019 Sahebrao s/o. Madhavao Shirphule,(Convict Prisoner C-11440)Age : 53 years, Occ. Nil,r/o. Kamari, Tq. Himayatnagar, Dist. Nanded, Presently Through : Superintendent,Central Prison, Nashik Road, Nashik..AppellantVs.1]The State of Maharashtra,Through : Police Station,Himayat Nagar, Dist. Nanded,2]The Superintendent,Central Prison, Nashik Road,Nashik..RespondentANDCRIMINAL APPEAL NO.663 OF 20191]Prashant s/o. Sahebrao Shirphule,(Convict Prisoner C-11439)Age : 29 years, Occ. Labour,2]Pradip s/o. Sahebrao Shirphule,(Convict Prisoner C-11438)Age : 24 years, Occ. Labour,Appellant Nos.1 and 2 are r/o. Kamari, Tq. Himayatnagar, Dist. NandedPresently Through Superintendent,Nashik Road Central Prison)..AppellantsVs.1]The State of Maharashtra,Through Police Station,Himayat Nagar, Dist. Nanded
Legal Reasoning
2Cri Appeal No.663 of 2019 and ors2]The Superintendent,Nashik Road, Central Prison, Nashik,..RespondentsANDCRIMINAL APPEAL NO.238 OF 20191]Girjabai w/o. Prashant Shirphule,Age : 26 years, Occ.Nil,(Convict Prisoner C-3126)2]Gangabai w/o. Sahebrao Shirphule,(Convict Prisoner C-3127)Age : 43 years, Occ. Nil,Appellant Nos.1 and 2 are r/o. Kamari, Tq. Himayatnagar,Dist. Nanded ..AppellantsVs.1]The State of Maharashtra,Through Police Station,Himayat Nagar, Dist. Nanded2]The Superintendent,Central Prison,Nashik Road, Nashik..Respondents----Mr.S.G.Bobade and Mr.A.V.Bagal, Advocates for appellants in allappealsMrs.S.N.Deshmukh, APP for respondent-sole---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON:JUNE 25, 2024 PRONOUNCED ON:JULY 01, 2024 3Cri Appeal No.663 of 2019 and orsJUDGMENT (PER R.G.AVACHAT, J.) :-This group of three Criminal Appeals is decided by thiscommon judgment, since the challenge therein is to one and thesame judgment and order of conviction and consequential sentencepassed by learned Addl. Sessions Judge, Bhokar, Dist. Nanded (trialCourt) in Sessions Case No.20 of 2015. Vide the impugned judgmentand order, the appellants have been convicted for various offencesand consequentially sentenced therefor. The details thereof are givenbelow in the tabular form:-Sr.No.Section Punishment 1302 r/w. 149 of IPCLife imprisonment and fine of Rs.3,000/-, indefault, S.I. for 02 months.2307 r/w. 149 of IPCRigorous imprisonment for 07 years and fineof Rs.2,000/-, in default, S.I. for 01 month3120-B of IPCRigorous imprisonment and fine of Rs.2,000/-,in default, S.I. for 01 month4143 of IPCRigorous imprisonment for 03 months5147 of IPCRigorous imprisonment for 01 yearSubstantive sentences to run concurrently. 2.The case of prosecution, in brief, is as follows:-The appellants are members of one and the same family.They formed an unlawful assembly, the object whereof was tocommit murder of Yogesh (deceased) and some of his family 4Cri Appeal No.663 of 2019 and orsmembers. There was an open plot of land at village Kamari,Tq. Himayatnagar, Dist. Nanded. A dispute was there between theappellants on one hand and Yogesh and his family, on the other. Onthe given day, i.e. on 13.04.2015, Yogesh along with his familymembers came to village Kamari for settlement of the dispute. Itwas 11.30 am., they reached the plot. The residential house of theappellants was at a distance of about 150 ft. from the said plot. Theappellants armed with various deadly weapons, mounted attack onYogesh (deceased), Ramdas and female members of his family. As aresult of the assault, Yogesh died on the spot and others sufferedmultiple injuries. They were rushed to Tukamai Hospital, Nanded.Ganesh (PW 1), uncle of Yogesh, had also come to Kamari along withthem. He was also resident of the very village. The incident tookplace in his presence. The scene of offence was situated at apopulated area. One of the villagers informed the police on phoneabout the incident. Some of the police officials arrived. PW 1 –Ganesh Shirphule (informant) was present. 3.The police drew crime scene panchnama (Exh.35) in thepresence of PW 2 – Ganesh Rathod. Sample of blood spilled on thespot was obtained. The informant accompanied the police to thepolice station and lodged FIR (Exh.29), alleging therein the 5Cri Appeal No.663 of 2019 and orsappellants to have assaulted Yogesh, Ramdas and other familymembers with deadly weapons. The vehicles, wherein Yogesh alongwith his family members and the informant had been to villageKamari, too were subject of assault, causing lot of damage thereto.Based on the same, crime vide C.R. No.34 of 2015 came to beregistered with Himayatnagar Police Station, Dist. Nanded, for theoffences punishable under Sections 120-B, 143, 147, 148, 149, 307,302 and 427 of Indian Penal Code. The appellants were arrested.Clothes on their person were taken charge of under variouspanchnamas. The clothes on the person of the deceased Yogesh andthe injured were also seized. Mortal remains of Yogesh was subjectedto inquest and autopsy. Each of the appellants made disclosurestatements, pursuant to which the weapons of assault, wielded byeach of them, came to be recovered under different panchnamas.Medical certificates of the injured were obtained. Statements of thepersons acquainted with the facts and circumstances of the casewere recorded. The seized articles were submitted to F.S.L. The CAreports were received. Upon completion of the investigation, chargesheet was filed against the appellants before the Court of JudicialMagistrate, First Class, Himayatnagar, Dist. Nanded, which, in turn,committed the case to the Court of Addl. Sessions Judge, Bhokar. 6Cri Appeal No.663 of 2019 and ors4.The trial court framed Charge (Exh.3). The appellantspleaded not guilty. Their defence was of false implication. From thetenor of the cross-examination, it appears that sometimes, thewitnesses were suggested that Yogesh died in motor vehicleaccident; then, it was suggested that the assailants had maskedtheir faces; and that, presence of the informant on the crime scenewas denied. To establish the Charge, the prosecution examinedfifteen witnesses and produced in evidence certain documents.5.The trial Court, on appreciation of the evidence in thecase, convicted and consequentially sentenced the appellants, asstated above.6.Learned counsel for the appellants would submit that afalse FIR has been lodged, implicating one and all the familymembers. Even female members have not been spared. Theincident took place at a populated area. None of the personsresiding in the nearby and who witnessed the incident has beenexamined. Learned counsel urged for allowing the appeals.7.Learned APP would, on the other hand, took us throughthe evidence of each and every witness, to submit it to be a case ofbrutal murder and a bid on the family members of deceased Yogesh. 7Cri Appeal No.663 of 2019 and orsAccording to her, the case is based on the eye-witnesses account ofthe injured. Their evidence stands on higher pedestal. Same hasbeen corroborated by the medical evidence and the C.A. Reports.She, ultimately, urged for dismissal of the appeal.8.We have considered the submissions advanced bylearned counsel for the parties. Perused the evidence on record.Let us advert to the evidence on record and appreciate the same.9.The incident took place by 11.30 a.m. on 13.04.2015, atvillage Kamari, Tq. Himayatnagar. The appellants are members ofone and the same family. There was dispute over an open plot ofland. They had, therefore, come to village Kamari to settle thesame.10.PW 2 - Ganesh Rathod is witness to the crime-scenepanchnama (Exh.35). His evidence is consistent with theprosecution case. It is in his evidence that the crime-scene waspointed out by the informant (PW 1 - Ganesh Shirphule). During hiscross-examination, it has been brought on record that there weremany houses nearby the crime-scene. True, none of the independentwitnesses has been examined in the case. We may address thisquestion a little later. The crime-scene panchnama indicates that 8Cri Appeal No.663 of 2019 and orsthe dead body of Yogesh was lying at the place. He had suffered notless than 29 injuries. Even, a knife was seen at the situ in his thigh. 11.PW 6 – Govind is witness to the inquest panchnama(Exh.52). PW 13 – Dr.Sachin conducted autopsy on the mortalremains of Yogesh. The post mortem report (Exh.82) indicates thatYogesh died of hemorrhagic shock due to multiple injuries. Theevidence of PW 13 – Dr.Sachin and the post mortem report (Exh.82)indicate Yogesh to have suffered 29 injuries, as under :-External Injuries :-1) CLW over left forearm, middle 1/3rd to lower 1/3rd oblique 8x 2cm. extensorly.2) CLW over left forearm external aspect middle 1/3rd longitudinal5 x 1 cm.3) CLW over left forearm middle 1/3 rd flexor aspect 6 x 2 cm.longitudinal.4) CLW over left forearm flexor aspect upper 1/3 rd transverse 5 x 1cm.5) Incised wound over right ankle joint medial transverse 8 x 2 x 3cm.6) Incised wound over right leg lower 1/3rd middle sidelongitudinally oblique lateral upper midial lower 6 x 1 x 2 cm.7) CLW over right6 thigh middle 1/3rd longitudinally obliquelateral lower to upper medial 12 x 4 ½ cm.8) CLW over left feet dorsum lateral near ankle joint 7 ½ x 2 cm.transverse.9) Incised wound over left thigh near left knee joint laterally 5 x 2 x4 cm. 9Cri Appeal No.663 of 2019 and ors10) Incised wound over left lower 1/3rd laterally transverse 5 x 1 x3 cm.11) CLW over left thigh upper 1/3rd lateral longitudinal 4 ½ x 1cm.12) Incised wound over left thigh laterally middle 1/3 rd 6 x 3 c3cm.13) CLW over left lower back transverse 7 x ½ cm.14) CLW over left lower back oblique 3 x 1 cm.15) Stab wounds over left lateral side abdomen middle to lower 3injuries (wounds) 8 x 2 x 10 cm., 7 x 3 x 8 cm., 9 x 2 x 10 cm. atthe same plane measures each.16) Just below that injury No. 15 4 CLWs 2 x 1 cm. each.17) Stab wound just above left inguinal region transverse 10 x 2 x12 cm.18) Multiple CLWs overs left side lumbar region 3 x ½ cm., 2 x ½cm., 1 cm. x ½ cm. , 2 x ½ cm. 4 x 1 cm. transverse.19) CLW over left hypochondrium transverse 8 x 1 cm.20) CLW over left hypochondrium oblique 2 x 1 cm.,21) CLW over left sided chest at rib 2 nd level transversely oblique 6x 1 cm. and that above one CLW 3 x ½ cm. parallel.22) Incised wound over left chest laterally at level of nipple 3 x 2 x3 cm.23) Stab wound over left axillary region 3 x 2 x 4 cm.24) CLW over left shoulder anterior 3 x 2 x 1 cm. 25) CLW over left chest above nipple 3 x 1 cm.26) CLW over center of chest longitudinal 3 x 1 cm. 27) CLW over left ear middle back 2 x ½ cm.28) CLW over trachea transverse 3 x 1 cm. 29) Stab wound over left thigh middle 1/3rd medially 3 x 3 x 5 cm. 10Cri Appeal No.663 of 2019 and orsFractures :-1) Fracture right tibia and fibula lower end bone cut-pieces2) Fracture right tibia and fibula lower 1/3rd bone cut-pieces3) Fracture left femur lower end, epicondylar4) Rupture or injury to large intestine and bleeding in abdominalcavity.Internal Injuries :-1) Left femoral vain and left femoral artery cutting of right tibialartery cut2) Abdominal wall punctured just above left inguinal region.3) There was peritoneum punctured above left inguinal region.The knife was required to be removed from the thigh of the deceasedYogesh. The clothes of the deceased were also taken charge of,when delivered by the Medical Officer to the police. Although PW 13was subjected to searching cross-examination, nothing could beelicited to indicate that Yogesh was not met with homicidal death. 12.The Investigating Officer (PW 15) had solicited opinion ofDr.Sachin (PW 13) as regards with what kind of weapon, the injurieson the person of Yogesh were caused. The opinion given by him is atExh.84, wherein he opined that "मयताचे अंगावरील जखमा अत्यंत धारधार, तीक्ष्णहत्याराने (sharp weapon) करण्यात आलेल्या आहेत”. During his cross-examination,Dr.Sachin (PW 13) was shown the weapons namely, axe, sickle andknife and his opinion was solicited. According to Dr. Sachin, theinjuries on the person of deceased Yogesh were possible with the 11Cri Appeal No.663 of 2019 and orsassault by such kind of articles. In view of the aforesaid evidence,we have no hesitation to observe Yogesh to have met with homicidaldeath.Assault on the family members of deceased Yogesh :-13.PW 9 – Ramdas testified that deceased Yogesh was hiscousin. It is in his evidence that he had accompanied Yogesh and his(Yogesh) father – Namdeorao to village Kamari. Their relative –Uttam Mane was also with them along with the members of hisfamily namely, Archana, Parvataibai, Jaishribai. It is in his evidencethat they reached the village by 11.30 a.m. No sooner they arrived,the appellant Sahebrao started abusing his uncle Namdevrao (fatherof Yogesh). The appellants - Prashant, Pradip, Girjabai and Gangabaitoo were involved in the quarrel with them. The appellant - Sahebraowas armed with axe. He assaulted Yogesh on his stomach, handsand legs. Appellant - Prashant assaulted Yogesh with knife on hishands, legs and stomach; while Pradip assaulted Yogesh on stomachwith sickle. The appellants – Girjabai and Gangabai assaulted himwith iron rods. They also assaulted his mother Laxmibai, sisterSeema, grandmother - Sharjabai and aunt Parvatabai. It is in hisevidence that he too was assaulted by the appellants. His conditionbecame serious. He was, therefore, referred to Sunshine Hospital, 12Cri Appeal No.663 of 2019 and orsHyderabad. He was discharged from the hospital on 17.04.2015. Thepolice recorded his statement on 20.04.2015. Although this witnessappeared to have given details of the assault, it is not known as towhy the Investigating Officer has not obtained and placed on recordhis medical papers. There is no document in the nature of MLC ormedical papers issued by Sunshine Hospital, indicating that Ramdaswas admitted to that hospital and was treated for the injuriessuffered in the incident. We, therefore, do not propose to give muchimportance to the evidence of PW 9 – Ramdas.14.The informant (PW 1 – Ganesh) claimed to have hadwitnessed the incident. It is he, who lodged the FIR. It is in hisevidence that he along with Yogesh and other family members hadcome to village Kamari. The purpose of visit was settlement of thedispute over a piece of land (house site). It was 13.04.2015 by 11.30in the morning, they reached village Kamari in two vehicles. It is inhis evidence that the appellant - Sahebrao was armed with axe;Prashant had knife with him; Pradip was holding sickle; and Girjabaiand Gangabai were armed with iron rods. It is further in his evidencethat all these five appellants assaulted Yogesh with those weaponswith multiple blows. It is further in his evidence that Parvatibai(mother of Yogesh), Laxmibai, Seemabai, Ramdas and Sarjabai 13Cri Appeal No.663 of 2019 and orscame to rescue Yogesh. All the five appellants assaulted them toowith the respective weapons in their hands. It is further in hisevidence that he sent all the five injured to Tukamai Hospital,Nanded. Somebody from village made telephone call to the police.The police arrived by 01.00 p.m. He showed them the dead body ofYogesh. Police drew crime-scene panchnama (Exh.35) and collectedearth and blood from the crime scene. It is further in his evidencethat he accompanied the police to the police station, whereat helodged the FIR (Exh.29). The weapons, allegedly used by theappellants in assaulting Yogesh and other injured, were shown tohim. He identified the same. It is further in his evidence that thephotographs, eight in number, were snapped while drawing thecrime-scene panchnama.15.PW 1 – Ganesh was subjected to searching cross-examination. It has come on record that he would run a fair-priceshop at village Kamari. On the first day of every month, food-grainsare distributed. Distribution of food-grains would continue for next 4-5 days. Thereafter, there used to be no work in the fair-price shop. Itis further in his evidence that he had three brothers. His elderbrother Bhairoba passed away. The other two brothers are Namdevand Sahebrao. Namdev would reside at Pune. Yogesh (deceased) 14Cri Appeal No.663 of 2019 and orsand Kishor were Namdev's sons. They were serving at Pune. Theappellants are his distant relations. He went on to state that thefather of appellant - Sahebrao was real brother of his father. Hisfather was, however, given in adoption. He was no-way related tothe family of Kondbarao Shirphule. He was confronted with his FIR tobring on record the omission that Parvatibai and other femalemembers had intervened to rescue Yogesh and they too sufferedinjuries. Although this fact specifically does not finds place in theFIR, it has been specifically mentioned that all the female memberswere also assaulted with deadly weapons. The vehicles too weredamaged. We, therefore, do not find it to be a case of materialomission amounting to contradiction. Since the informant himselfwas examined, it was not necessary for the prosecution to examinethe police official, who recorded the same, although objection wasraised on that point. We do not find that non-examination of suchpolice official to be prejudicial to the defence in the nature of havinglost an opportunity to bring on record omission amounting tocontradiction. 16.In paragraph 14 of the evidence of PW 1 - Ganesh, it hasbeen appearing that 7-8 policemen had come to the spot. An axe,knife, sickle and two iron rods were lying on the spot when the policearrived. The police seized all the weapons in his presence. Some 15Cri Appeal No.663 of 2019 and orsvillagers were also present. Photographs were snapped. Those werecollectively marked as Exhs.30 and 31. It has also been brought onrecord that the houses of Uttamrao, Govind, Kondiba were aroundthe crime scene. True, none of them has been examined by theprosecution. It has also been brought on record that the house ofthe appellants was at a distance of just 150 ft. away from the crimescene. It is further in his evidence that on the following day, he wentto Nanded to meet the injured. He visited the hospital and informedthe injured to have cremated Yogesh. He also informed them to havelodged the FIR and contents thereof. Here, learned counsel for theappellants meant to say that the other alleged injured were in theknow about the contents of the FIR and therefore, they gave theirstatements suitable and consistent with the FIR. It is further in hisevidence that Ramdas and Parvatibai informed him as to how theincident occurred. He, however, immediately clarified that he toowas present while the crime took place. He categorically denied thatvehicle of Yogesh met with accident and he died therein. Accordingto us, whatever came to the mind of the defence-lawyer, was put inwhen cross-examining the witnesses. Then, it was suggested to himthat it was he, who pierced the knife in the thigh of Yogesh. Asalready stated above, it was even suggested to some of thewitnesses that the culprits had their face masked. Be that as it may. 16Cri Appeal No.663 of 2019 and ors17.PW 10 – Seema and PW 11 – Laxmibai were said to bethe victims of the crime. Both of them were examined. It is in theevidence of PW 10 – Seema that it was Monday of 13.04.2015. Shealong with her mother was present at her house. It was 11.30 a.m.Both of them came out of the house on hearing noise of the vehicle.The appellants had come in the vehicle. All of them quarreled withNamdevrao on account of dispute over an open space. Sahebrao(appellant) was requested not to quarrel and the dispute would besolved. It is further in his evidence that all the male appellants werearmed with sharp weapons like, axe, knife and sickle, while Girjabaiand Gangabai were armed with iron rods. All of them assaultedYogesh first. When they intervened, they too were assaulted by allthe appellants.Cross-examination of PW 10 – Seema indicates thatshe was disabled with both of her legs due to Polio. She, therefore,could not do any work or move anywhere. She, however, deniedthat without any help, she could not do any work. A very vitaladmission was elicited from her to indicate that her uncle Ganesh(informant) told the contents of the FIR. Learned counsel for theappellants had, therefore, every reason to contend that she gavestatement consistent with the contents of the FIR. 17Cri Appeal No.663 of 2019 and ors18.On the same lines is the evidence of PW 11 – Laxmibai.We, therefore, do not reiterate the same. She was suggested thatthe faces of the assailants were masked. She denied the same. Herevidence further indicates that there was no personal enmitybetween Pradip and Yogesh. 19.On the lines of the evidence of PW 10 – Seema andPW 11 – Laxmibai, we have evidence of PW 12 – Parvatibai, anothervictim. She too spoke in one voice. Her evidence is very muchconsistent with the evidence of PW 10 – Seema and PW 11 –Laxmibai. Only with a view to avoid repetition, we do not reiteratethe same. In her examination-in-chief itself, the incident has beennarrated by her. In the cross-examination, however, she admittedthe informant had told him to have lodged the FIR and the contentsthereof. When her statement was recorded, the informant waspresent in the hospital. This suggestion itself indicates that she washospitalised as a result of the injuries suffered. She gave vitaladmission to the effect that since she was unable to speak, theinformant narrated the incident. In short, it has been brought onrecord that her police statement was given by the informant (PW 1).20.PW 14 – Dr.Dattatraya was Medical Practitioner, servingwith Tukamai Hospital, Nanded. It is in his evidence that Seema, 18Cri Appeal No.663 of 2019 and orsLaxmibai, Parvatabai and Ramdas were brought to the hospital bytheir relatives. Since Ramdas was serious, he was referred toApeksha Hospital, Nanded, where ICU facility was available. Heexamined Seema, Laxmibai and Parvatabai and noticed followinginjuries on their person:-Injuries on the person of Seema:-1) Incised wound on left hand 1 x 6 x 1 cm. on palmer aspect on X-ray examination there was fracture of 2nd and 3rd metacarpal withflexor tendon injury.2) Incised wound on left foot 4 x 4 x 1 cm. on X-ray fracture 3rd,4th, & 5th metatarsal with extension tendon injury.3) Incised wound middle, index, little finger of right hand 1 x 1 cm.4) Incised wound right forearm medial aspect 1 x 1 cm.Injuries on the person of Laxmibai :-1) Incised wound on forehead midline 1 x 3 cm. bone deep2) Stab wound on left arm lateral aspect, with tear of biceps muscle1 x 5 x 4 cm.3) Incised wound on left thigh 1 x 4 x 2 cm.4) Incised wound on right thigh 1 x 1 x 1 cm.5) Incised wound on left forearm 1 x 1 x 1 cm.6) Incised wound on right hand palmor aspect 1 x 3 x .5 cm.7) Incised wound on right ring finger palmor aspect 1 x 1 cm.Injuries on the person of Parvatibai :-1) Incised wound on right postero lateral aspect of neck right side.(a) 1 x 2 x 1 cm. (b) 0.5 x 2 x 1 cm. 19Cri Appeal No.663 of 2019 and ors2) Stab wound on left side of chest on lateral aspect 1 x 4 cm. and10 cm deep.3) Incised wound on right arm 1 x 2 x 1 cm.4) Incised wound on left hand 1 x 3 x 1 cm.5) Incised wound on left forearm dorsal aspect 1 x 1 x 1 cm.6) Stab wound postero aspect on right ankle (a) lateral side 1 x 5 x2 cm. (b) Medial side 1 x 5 x 2 cm.7) Incised wound on left left (a) 1 x 4 x 1 cm. (b) 1 x 4 x 1 cm.Their injury certificates find place at Exhs.86, 87 and 88,respectively. It is in his evidence that he issued medico-legalcertificate. It is further in his evidence that he informed MLC to thePolice Station, Vazirabad, on his letterhead. Same is placed onrecord (Exh.89). His opinion was solicited, as to whether, the injuriessuffered by these injured (female) were possible with a particularkind of weapon shown to him. He gave his opinion vide Exh.91. Theopinion indicates that the injuries suffered by these females werepossible by a sharp cutting object like axe, knife (धारधार शस्त्र, उदा.कु-हाड).21.The injury certificates of Seema, Laxmibai and Parvatabaiindicate that they suffered the injuries, grievous in nature. All theinjuries were suffered within six hours before their examination. Ahistory of assault was given. They were indoor patient for some 20Cri Appeal No.663 of 2019 and orsdays. Although the injury certificates indicate these victims to havesuffered injuries grievous in nature, no other supportive medicalpaper like x-ray or anything has been placed on record. It is notknown, as to why they were referred to private hospital instead ofreferring them to a primary health centre or Civil Hospital, Nanded.Be that as it may. The fact remains that PW10 to PW 12 sufferedvarious kinds of injuries with sharp-edged weapons. They wereadmitted to Tukamai Hospital, Nanded, by little past 02.30 p.m. on13.04.2015. The crime-scene panchnama (Exh.35) indicates that thedead body of Yogesh was lying there. He had suffered not less than29 injuries, caused with sharp-edged weapons. 22.Then, there is evidence of other witnesses namely, PW 3- Avadhoot, panch witness, in whose presence, clothes of Laxmibai,Seema, Parvatibai were seized under three different panchnamasExhs.37 to 39, respectively. PW 4 - Shobhabai is panch witness tothe seizure of Saree delivered by the appellant – Girjabai on17.04.2015 under panchnama Exh.42; while Gangabai delivered herSaree on the same day in her presence under panchnama Exh.43.23.PW 5 – Dnyaneshwar is panch witness as regards seizureof clothes of the appellants - Sahebrao, Prashant and Pradip underdifferent panchnamas Exh.46 to 48. It is further in his evidence that 21Cri Appeal No.663 of 2019 and orsthereafter, he accompanied the police to the house of the appellants.Appellants – Gangabai and Girjabai delivered two iron rods each.Those were seized under panchnamas Exhs.49 and 50. Admittedly,the rod seized from Girjabai did not borne blood stains. It was not arecovery pursuant to the disclosure statement. It was suggested tohim in cross-examination that while he had accompanied the policeto the house of the appellants, the entrance door was open. Thesame indicates the defence to have admitted him to haveaccompanied the police to the appellants' house.24.PW 8 – Sk. Mehboob is witness to the disclosurestatement, allegedly made by appellant – Prashant on 15.04.2015,pursuant to which, the knife came to be seized from Besharamshrubs. It was seized under panchnama Exh.60; while thememorandum statement of Prashant is at Exh.59. PW 8 is panchwitness to two other disclosure statements: one made by Sahebraoon 16.04.2015; and another made by Pradip on 17.04.2015. As perthe evidence of this witness, Sahebrao made disclosure statementExh.61 and pointed out the axe, which came to be seized underpanchnama Exh.62; while, as per his further evidence, Pradip madedisclosure statement, pursuant to which a sickle came to berecovered under panchnama Exh.64. We do not propose to rely on 22Cri Appeal No.663 of 2019 and orsthe evidence of this witness. As per the prosecution case itself, asnarrated by PW 1 (informant), Sahebrao wielded axe, Prashant usedknife, while Pradip assaulted with sickle and the appellants Gangabaiand Girjabai assaulted with iron rods. It means, as per the case ofprosecution, it was only one knife used in commission of the crimeand that too, by Prashant. As per the prosecution case itself, thephotographs, inquest panchnama and post mortem report indicatethe knife remained pierced in the thigh of deceased Yogesh. Samewas removed while post mortem was conducted by PW 13 –Dr.Sachin and delivered it to the police. Thus, it is surprising, as tohow come second knife came to be seized, pursuant to thedisclosure statement made by Prashant (Exh.59) and same wasrecovered under panchnama (Exh.60). What kind of investigationit is! 25.It is reiterated that as per the prosecution case itself andfrom the reliable evidence in the nature of inquest and medicalexamination of the deceased and the photographs, the knife wasfound pierced in the thigh of deceased Yogesh. It was at situ. Then,how come a second knife came to be seized from the disclosurestatement allegedly made by Prashant. The prosecution case thatthe appellants - Prashant, Sahebrao and Pradip made disclosure 23Cri Appeal No.663 of 2019 and orsstatements, pursuant to which the weapons came to be seized,therefore, cannot be accepted. There is one more reason todisbelieve this piece of evidence of PW8 - Sk. Mehboob, that since,according to the informant, while the police reached the crime-scene, all the weapons of assault were lying thereat and the policetook charge thereof. We have, therefore, every reason not to believethe evidence of PW 8- Sk. Mehboob and the Investigating Officer(PW 15) as regards the disclosure statements made by theappellants and recovery of the articles namely, axe, sickle and knife.Consequently, we do not propose to rely on the C.A. reports inrelation to these articles.26.The fact, however, remains that the evidence on recordin the nature of photographs, inquest panchnama and post mortemreport indicates that Yogesh was assaulted at the place mentioned inthe crime-scene panchnama (Exh.35). His dead body was lyingthereat until police arrived. Twenty-nine external injuries and evensome internal injuries were noticed on his person during postmortem examination. The opinion of the Medical officer is that theseinjuries were caused by sharp-edged weapons. PW 10 – Seema,PW 11-Laxmibai and PW 12-Parvatibai too were referred to TukamaiHospital. Their medical certificates referred to herein-above indicatethem too have suffered injuries with sharp-edged weapon. 24Cri Appeal No.663 of 2019 and ors27.In the case in hand, Girjabai and Gangabai appear tohave been falsely roped in. Both of them are alleged to haveassaulted the deceased and other injured with iron rods. Themedical evidence does not indicate the deceased or the injured tohave suffered any injury with a hard and blunt object. As such, themedical evidence rules out the eye-witnesses account. We,therefore, find these female appellants to have been roped in.Although their sarees appear to have blood stains, those wererecovered four days after the incident. The iron rod seized from oneof them did not borne blood stains. We have already discarded theC.A. reports as regards the weapons seized, for the reasons givenwhile appreciating the evidence of PW 8 – Sk. Mehboob, relating tothe recovery of weapons, pursuant to the disclosure statements. Assuch, it is the case indicating the medical evidence beinginconsistent with the eye-witness account. All the victims havesuffered injuries with sharp-edged weapons, which were used by theappellants – Sahebrao, Prashant and Pradip. No weal-mark wasfound on the person of any of the injured or even the deceased. Abenefit of doubt, therefore, needs to be extended to the appellants –Girjabai and Gangabai. 25Cri Appeal No.663 of 2019 and ors28.So far regards the evidence regarding assault by theappellants – Sahebrao, Prashant and Pradip on the deceased and theinjured, same is proved by the evidence of PW 1 (informant) and thevictims themselves. We do not find non-examination of anyindependent witness, in the facts and circumstances of the case, tobe fatal to the prosecution case. Since the appellants – Girjabai andGangabai are being acquitted, it would not be a case of unlawfulassembly of the appellants. Section 34 of Indian Penal Code,therefore, would take place of Section 149 of Indian Penal Code. Theappellants – Sahebrao, Prashant and Pradip assaulted the deceasedand the injured victims. Conviction recorded by the trial court andthe consequential sentence against them would, therefore, bemaintained but with replacing Section 149 of IPC with Section 34 ofIPC.29.In the result, the following order:-(i)Criminal Appeal Nos.84 of 2019 and 663 of 2019 standpartly allowed.(ii)The judgment and order dated 27.10.2017, passed bylearned Addl. Sessions Judge, Bhokar, Dist. Nanded, in Sessions CaseNo.20 of 2015, is modified to the extent of conviction as regards the 26Cri Appeal No.663 of 2019 and orsappellants namely, Sahebrao s/o. Madhavao Shirphule, Prashant s/o.Sahebrao Shirphule and Pradip s/o. Sahebrao Shirphule and they arehereby convicted for the offences punishable under Sections 302,307 r/w. 34 and 120-B of Indian Penal Code. They are herebyacquitted of the offences punishable under Sections 143 and 147 ofIndian Penal Code. The order of sentence to stand unaltered.(iii)Criminal Appeal No.238 of 2019 is allowed.(iv)The order of conviction and consequential sentencedated 27.10.2017, passed by learned Addl. Sessions Judge, Bhokar,Dist. Nanded, in Sessions Case No.20 of 2015, for the offencespunishable under Sections 302 r/w. 149, 307 r/w. 149, 120-B, 143and 147 of Indian Penal Code, is set aside to the extent of theappellants namely, Girjabai w/o. Prashant Shirphule and Gangabaiw/o. Sahebrao Shirphule. They are acquitted of the said offences.(v)The appellant namely, Girjabai w/o. Prashant Shirphule ison bail. Her bail bonds stand cancelled.(vi)The appellant - Gangabai w/o. Sahebrao Shirphule is injail. She be released forthwith, if not required in any other case. 27Cri Appeal No.663 of 2019 and ors(vii)Fine amount deposited by these appellants, if any, berefunded to him. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]….....…KBP