Criminal Appeal No. 565 of 2018 · Bombaybench High Court
Case Details
2024:BHC-AUG:27334-DB 1 Criappeal-871-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 565 OF 2018Suresh S/o Narayan SangekarAge: Major, Occu : Service,R/o: Police Colony, Hingoli.… AppellantVersusThe State of MaharashtraThrough The Police Station Ofcer,City Police Station, Kalmanuri,Ta. Kalmanuri, Dist. Hingoli.… Respondent……ANDCRIMINAL APPEAL NO. 563 OF 2018Ravi S/o Subhash SatbhaiAge: 24 years, Occu: Service,R/o: Morwadi,Taluka : Kalamnuri, District Hingoli…. AppellantVersusThe State of MaharashtraThrough : The Police Station Ofcer,City Police Station, Kalmanuri,Ta. Kalmanuri, Dist. Hingoli.… Respondent….ANDCRIMINAL APPEAL NO.540 OF 20181. Subhash Shankerappa SatbhaiAge: 51 years, Occu: Service,R/o. Morwadi, Tq. Kalmanuri,Dist. Hingoli2. Gajanan Shankerappa SatbhaiAge: 41 years, Occu: Agri.,R/o. As above[ As per Hon’ble Courts order dtd. 17/10/2023separate Cri. Appeal No.76/2024 fled by Appellant No.2]3. Shivanand Shankerappa SatbhaiAge: 28 Yrs., Occu. Agri.,R/o. As above… AppellantsVersus 2 Criappeal-871-2023.odt1] The State of Maharashtra2] Nandabai Shivanand WaikuleAge: 50 years, Occu: Household,R/o. Palodi, Tq. Kalamnuri,Dist. Hingoli[Amendment made as per Court’s order dtd. 22.01.2024]… Respondents….ANDCRIMINAL APPEAL NO. 76 OF 2024Gajanan Shankarappa SatbhaiAge: 50 yeras, Occupation: Agriculture,R/o. Morwadi, Tq. Kalamnuri,Dist. Hingoli.… AppellantVersus1] The State of Maharashtra2] Ganesh Bapurao WaykoleAge: 45 years, Occupation: Agriculture,R/o. Padoli, Tq. Kalamnuri,Dist. Hingoli3] Nanadabai w/o Shivanand WaykoleAge: 42 years, Occupation: Agriculture,R/o. Padoli, Tq. Kalamnuri,Dist. Hingoli.… Respondents …..AND CRIMINAL APPEAL NO.518 OF 2020Ganesh S/o Bapurao WaykoleAge: 40 yrs, Occu: Agriculture,R/o., At. Palodi, Post KalamnuriTq, Kalamnuri, Dist. Hingoli… AppellantVersus1] Subhash Shankerappa SatbhaiAge: 51 years, Occ.2] Gajanan Shankerappa SatbhaiAge: 41 years, Occ. Agri.3] Shivanand Shankerappa SatbhaiAge: 28 years, Occ. Agri.4] Ravi S/o Subhash SatbhaiAge: 24 years, Occ. Service 3 Criappeal-871-2023.odt5] Ramesh S/o Subhash SatbhaiAge: 20 years, Occ. Agril6] Shankerappa S/o Subhanji SatbhaiAge: 90 years, Occ. Agril7] Mankarnabai W/o Subhash SatbhaiAge: 40 years, Occ. Household,Res. No.1 to 7 are R/o MorwadiTq. Kalamnuri, Dist. Hingoli8] Hari S/o Santosh HingankarAge: 23 years, Occ. ServiceR/o, Palodi, At Present Morwadi,Tq. Kalamnuri, Dist. Hingoli9] Sow. Pratima W/o Gajanan SatbhaiAge: 30 years, Occ. Household10] Sow. Joyti W/o Shivanand SatbhaiAge: 27 years, Occ. Household11] Suresh S/ Narayan SangekarAge: Major years, Occ. ServiceRes. No.9 to 11 are R/o MorwadiTq. Kalamnuri, Dist. Hingoli12] The State of Maharashtra… Respondents….ANDAPPLICATION FOR LEAVE TO FILE APPEAL BY STATE NO.91 OF2020The State of MaharashtraThrough: Police Station Ofcer,Police Station Kalamnuri,Tq. Kalamnuri, Dist. Hingoli… ApplicantVersus1] Subhash s/o Shankerappa Satbhai, Age: 48 years, Occu: Agriculture2] Gajanan s/o Shankerappa Satbhai,Age: 38 years, Occu: Agriculture3] Shivanand s/o Shankerappa Satbhai,Age: 25 years, Occu: Agriculture
Legal Reasoning
4 Criappeal-871-2023.odt4] Ravi s/o Subhash SatbhaiAge: 24 years, Occ: Agriculture5] Ramesh s/o Subhash SatbhaiAge: 20 years, Occu: Agriculture6] Shankerappa s/o Subhanji SatbhaiAge: 90 years, Occu: Agriculture7] Mankarnabai w/o Subhash SatbhaiAge: 40 years, Occu: Household,Resp Nos. 1 to 7 are R/o Morwadi,Tq. Kalamnuri, Dist. Hingoli8] Hari s/o Santosh HingankarAge: 23 years, Occu: Service9] Sow. Pratima w/o Gajanan SatbhaiAge: 38 years, Occu: Household10] Sow. Jyoti w/o Shivananda SatbhaiAge: 27 years, Occu: Household11] Suresh s/o Narayan SangekarAge: Major, Occu: Service,Resp Nos.8 to 11 are R/o. Palodiat present Morwadi,Tq. Kalamnuri, Dist. Hingoli … RespondentsAppearance :-Mr. V. D. Sapkal [Senior Advocate] i/b Mr. S. R. Sapkal, Advocate forthe Appellants in Appeal Nos.565/2018 and 563/2018 and forRespondent Nos. 4 and 11 in ALS No.91/2020Mr. S. J. Salunke, Advocate for the Appellant in Appeal No.76/2024and for Respondent No.2 in ALS No.91/2020Mr. Satej S. Jadhav, Advocate for Appellants in Appeal No.540/2018and for Respondent Nos.1, 3, 5 to 10 in ALS No.91/2020Mr. Dhananjay M. Shinde, Advocate for Appellant in AppealNo.518/2020Mr. S. D. Ghayal, Addl. PP for Respondent – State in Appeals and forApplicant in ALS No.91/2020______________________________________________________________ 5 Criappeal-871-2023.odtCORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved On : 25/09/2024Pronounced On : 22/11/2024COMMON JUDGMENT : [PER NEERAJ P. DHOTE, J.]1.As all these Appeals are directed against the Judgment andOrder dated 30/07/2018, passed by the learned Additional SessionsJudge, Hingoli, in Sessions Trial No.36/2015, they are decided bythis Common Judgment. The operative order of the impugnedJudgment reads as under :“1.Accused Nos.1 Subhash Shankerappa Satbhai, No.2Gajanan Shankerappa Satbhai, 3. Shivanand Shankerappa Satbhaiand 11. Suresh Narayan Sangekar are convicted under section 235(2) of Code of Criminal Procedure for an ofence punishable underSection 302 of Indian Penal Code and sentenced to suferimprisonment for life and to pay a fne of Rs.25,000/- (Rupeestwenty fve thousand) each. In default to sufer rigorousimprisonment for one year.2.Accused Nos.1 Subhash Shankerappa Satbhai, No.2Gajanan Shankerappa Satbhai, 3. Shivanand Shankerappa Satbhaiand 4. Ravi Subhash Satbhai and accused No.11 Suresh NarayanSangekar are convicted under section 235 (2) of Code of CriminalProcedure for an ofence punishable under section 324 of IndianPenal Code and sentenced to sufer Rigorous imprisonment forone year and to pay a fne of Rs.5,000/- (Rupees fve thousandeach). In default to sufer rigorous imprisonment for threemonths.3.Accused No.6 Shankerappa Satbhai and accused NO.9Pratima Gajanan Satbhai are held guilty for an ofence punishableunder Section under section 323 of Indian Penal Code. Instead ofsending them in jail, they be released on probation on theirexecuting bond in a sum of Rs.10,000/- for a period of one year fortheir good behaviour under Section 4 of the Probation ofOfenders Act. However, they shall pay Rs.5,000/- eachcompensation to Sakhubai Bapurao Waikule within 15 days.4.Accused No.5 Ramesh Subhash Satbhai, No.7 MankarnabaiSubhash Satbhai, No.8 Hari Santosh Hingankar and No.10 Jyotiw/o Shivanand Sangekar are hereby acquitted under Section 235(1) of Code of Criminal Procedure for ofence under Section 147,148, 302, 307 read with section 149 of Indian Penal Code andunder Section 120 (B) of Indian Penal Code. 6 Criappeal-871-2023.odt5.Accused Nos.1 to 4, 6, 9 and 11 are acquitted under Section235 (1) of Code of Criminal Procedure for ofence punishableunder Section 147, 148, 307 read with Section 149 and Section120 (B) of Indian Penal code.6.Set of under Section 428 of Code of Criminal Procedure begiven to convicted accused.7.After realization of fne amount Rs.75,000/- be given to theNandabai w/o Shivanand Waikule (widow of deceased) andRs.25,000/- be given to the injured Ganesh Waikule ascompensation.8.Muddemal property being worthless be destroyed afterappeal period.9.Accused No.5, 7, 8 and 10 are directed to execute personalBond for Rs.15,000/- each with surety in the like amount as persection 437A of Code of Criminal Procedure.10.Copy of Judgment be given to convicted accused free ofcosts.11.Accused are informed about their right to appeal toHonourable High Court.”2.Appeal Nos.540/2018, 563/2018, 565/2018 and 76/2024 fledby the Appellants / Convicts are against conviction. AppealNo.518/2020 fled by the Informant and ALS No.91/2020 fled bythe State are against acquittal.3.The Prosecution’s case, as revealed from the Police Report is as under :-[I] The Informant and his family members on the one hand andthe Accused / Convicts on the other hand were in dispute in respectof the part of agricultural land bearing Gat No.136, situated atVillage Palodi, District Hingoli. Their agricultural lands are adjacentto each other. Both were claiming possession and ownership overthe disputed land. On 01/06/2015 around 8.30 a.m., ShivanandBapurao Waikule [hereinafter referred to as ‘the Deceased’] andhis wife proceeded towards the agricultural land with agriculturalequipments. Accused No.2 [Gajanan Shankerappa Satbhai],Accused No.3 [Shivanand Shankerappa Satbhai] and Accused No.6 7 Criappeal-871-2023.odt[Shankerappa Subhanji Sathbai] obstructed them from proceedingfurther in the agricultural land. They were constrained to return.The Deceased informed his brother - Ganesh Bapurao Waikule [PW -1] about the same. The Informant along with his mother and wifeproceeded towards the agricultural feld. They met Deceased andhis wife on the way. They all went ahead to ask the aforesaidAccused as to why Deceased was obstructed. Heated exchangestook place between both the sides. The other Accused were alsopresent on the spot. Accused No.1 [Subhash Shankerappa Satbhai]assaulted the Informant with koyta. Accused No.4 [Ravi SubhashSathbai], Accused No.5 [Ramesh Subhash Satbhai], Accused No.8[Hari Santosh Hingankar], Accused No.9 [Pratima Gajanan Satbhai],Accused No.10 [Jyoti Shivanand Satbhai] and Accused No.11[Suresh Narayan Sangekar] surrounded the Informant, Deceasedand the witnesses with sticks, axe, koyta and stones in their hands.The Informant was assaulted by Accused No.1 [SubhashShankerappa Satbhai] and Accused No.11 [Suresh NarayanSangekar] with koyta on his head and other Accused assaulted theInformant on the hands, legs and other parts of body. TheInformant fell down. The Informant’s mother and the Deceasedintervened. The Accused assaulted Informant’s mother with stones,stick and axe. The Accused persons assaulted the Deceased withstick, axe, koyta and stones on the head, backside of neck and otherparts of body. The wives of Informant and Deceased wereassaulted by the Accused with stones and sticks. Due to hue andcry, the neighbouring agriculturist reached on the spot and all theAccused fled. The injured were taken to the Hospital for treatment.Deceased succumbed to the injuries. The statement of theInformant was recorded by the Police and Crime No.70/2015 cameto be registered with Kalamnuri Police Station for the ofence 8 Criappeal-871-2023.odtpunishable under Sections 302, 307, 120[B], 143, 147, 148 and 149of the Indian Penal Code, 1860 [hereinafter referred to as ‘IPC’]against the Accused persons. [II]The Inquest was done. Dead body was referred for thePostmortem. The Spot Panchnama was conducted. The statementof witnesses were recorded. The supplementary statement of theInformant was recorded. The Accused were arrested during thecourse of investigation. Two [2] axe, one [1] koyta and one [1] stickcame to be seized at the instance of Accused No.7 [MankarnabaiSubhash Satbhai] while in police custody. One [1] axe came to beseized at the instance of Accused No.2 [Gajanan ShankerappaSatbhai] while in police custody. The clothes of Accused, Deceasedand witnesses were seized. The seized Articles were referred tothe Chemical Analyzer for examination. The Postmortem Reportand the medical papers of witnesses were collected. Oncompletion of the investigation, the Charge-sheet andsupplementary Charge-sheet came to be submitted by theInvestigating Ofcers. [III]On committal, the learned Trial Court framed the Chargeagainst the Accused for the ofence punishable under Sections 147,148, 302 r/w Section 149, 307 r/w Section 149 and 120[B] of IPCvide Exhibit – 73. The Accused pleaded not guilty and claimed to betried. To prove the Charge, Prosecution examined in all seventeen[17] witnesses and brought on record the relevant documents.After the Prosecution closed their evidence, the statement ofAccused came to be recorded under Section 313[1][b] of the Codeof Criminal Procedure, 1973 [hereinafter referred to as ‘Cr.PC’]. TheAccused denied the case and evidence of the Prosecution.According to the Accused, the Informant, witnesses and Deceasedwere assaulted by the unknown persons and when they came to 9 Criappeal-871-2023.odtknow about the same, they went to rescue them and in thatincident, they sufered injuries. The defence witness - Dr. MadhavSambhaji Vibhute came to be examined to show that, at therelevant time, Accused No.10 [Jyoti Shivanand Satbhai] washospitalized. After the defence closed their evidence, the learnedTrial Court heard all the sides and after appreciating the evidenceon record, passed the impugned Judgment and Order.4.It is submitted by the learned Senior Advocate for theAppellants, in Appeal Nos. 565/2018 and 563/2018 that, theCharge, which was framed by the learned Trial Court, was with theaid of Section 149 of IPC, however, the Appellants are acquitted forthe ofence punishable under Sections 147, 148 and 149 of IPC andconvicted individually for their individual act, which has causedprejudice to the Appellants. There are lot of improvements /omissions in the testimony of the Informant and the injuredwitnesses. Though it has come in the evidence of Prosecutionwitnesses, that two of the assailants, had covered their faces, noTest Identifcation Parade [TIP] was held. The exaggeration in thetestimony of the witnesses is writ large. The Appellants had alsosufered injuries on their person and this shows that, theProsecution suppressed the genesis and clear picture is notbrought before the Court. The place of incident belonged to theAppellants. The statement of PW – 2 [Madhavrao DhurpatraoBangale], who is examined as the eyewitness, is recorded after fve[5] days from the date of incident and his evidence goes to showthat, he reached the spot after the incident was over. It has come inhis evidence that, the spot of incident was at height and was notvisible from his land. The evidence of PW – 4 [Sakhubai BapuraoWaikule], who is examined as the eyewitness to the incident, showsthat, her statement was recorded after twelve [12] days from the 10 Criappeal-871-2023.odtdate of incident. The evidence of PW – 6 [Nandabai ShivanandWaikule], who is examined as the eyewitness, is not corroboratedby corresponding injuries on the Deceased and the Informant. Thelearned Trial Court did not appreciate the evidence in correctperspective and therefore, the conviction and sentence recorded bythe learned Trial Court be quashed and set aside. The Judgmentscited by him would be considered in the later part of this Judgmentat appropriate stage.5.It is submitted by the learned Advocates for the Appellants, inAppeal No.540/2018 and 76/2024 that, the incident had taken placein the land belonging to the Appellants. The Appellants were alsoinjured and they had taken treatment in the Hospital. After theywere discharged from the Hospital, they were taken in custody andtherefore, they had no opportunity to lodge the FIR about theincident. The Prosecution has examined injured eyewitnesses.Under such scenario, the question is, who was the aggressor. Theincident did not take place as deposed by the witnesses. There arediscrepancies in the testimony of the eyewitnesses. The discoveryof weapons at the instance of Accused No.7 [Mankarnabai SubhashSathbai] would be of no assistance, considering the role attributedto her. The discovery of axe at the instance of Accused No.2[Gajanan Shankerappa Satbhai] in absence of blood stains would beof no assistance to link with the Crime. On the same evidence, theAccused i.e. Accused No.5 [Ramesh Subhash Satbhai], Accused No.7[Mankarnabai Subhash Satbhai], Accused No.8 [Hari SantoshHingankar] and Accused No.10 [Jyoti Shivanand Satbhai] areacquitted for all the charges. There was no intention to causedeath and there was absence of mens rea. Therefore, the ofencewould fall in the category of Section 304 [Part-I] and not 302 of IPC.The conviction be curtailed to lesser ofence. 11 Criappeal-871-2023.odt6.It is submitted by the learned Addl. PP that, the evidence ofinjured eyewitnesses shows that, the Appellants used deadlyweapons such as, axe, koyta, lathi and stones. Though they arearticles used in the agricultural operations, when used in the Crime,they become deadly weapons. The case is based on direct evidenceof injured witnesses corroborated by medical evidence. There isimmediate report by the Informant in the Hospital, which reflectsthe names of Appellants / Accused. FIR is not an encyclopedia so asto include each and every aspect of incident. By examining theMedical Ofcer in whose evidence, the Postmortem Report isexhibited, the Homicidal Death of Informant’s brother is provedand the revenue record is exhibited to show as to who was inpossession of the land. The evidence on record shows that, therewas dispute between both the sides on account of land. TheProsecution has also proved the injuries on the Appellant /Accused. False defence, that the assaulters were unknown person,is taken. The leave to appeal be granted and the order of acquittalbe quashed and set aside. 7.The learned Advocate for the Informant submits that, thecase is based on the testimony of injured eyewitnesses. Falsedefence is taken by the Accused / Appellants. The defence ofmissed blows on the Prosecution witnesses is unacceptable. Thereis no slightest evidence to show that, the Accused / Appellantsacted in self defence. The counter case of the Accused / Appellantsfled under Section 156[3] of Cr.PC was dismissed. There is evidenceof independent witness, who was having his land adjacent to theplace of incident. Considering the conduct of the Accused /Appellants, the inconsistencies are to be ignored. The commonobject is established from the Prosecution witnesses. It isimmaterial as to who caused which injury. The Trial Court’s 12 Criappeal-871-2023.odtJudgment for acquittal be set aside and all the Accused /Appellants be convicted for all the charges. The Judgments citedby him would be considered in the later part of this Judgment atappropriate stage. 8.Scrutinized the evidence available on record. TheProsecution’s case is based on the testimony of the eyewitnesses.PW – 1 [Ganesh Bapurao Waikule], PW – 4 [Sakhubai BapuraoWaikule] and PW – 6 [Nandabai Shivanand Waikule], who are thebrother, mother and sister-in-law, respectively of Deceased –Shivanand Bapurao Waikule, are examined as the eyewitnesses tothe incident. The one, who reached on the spot of incident, isexamined as PW – 2 [Madhavrao Dhurpatrao Bangale]. TheProsecution’s case mainly rests on the testimony of thesewitnesses. From their evidence, it is crystal clear that, there is nodispute on the following aspects :-[i] The land of PW – 1 [Ganesh Bapurao Waikule], PW – 4 [Sakhubai Bapurao Waikule], PW – 6 [Nandabai Shivanand Waikule] and land of the Accused / Convicts are adjacent to each other at village Palodi, District Hingoli ;[ii] There is dispute in respect of agricultural land between the said witnesses and the Accused / Convicts ;[iii] The Civil Suit is fled by the said witnesses against the Accused / Convicts in respect of seven [7] Acre agricultural land ;9.The Crime relating to the incident, which gave rise to theabove referred Sessions case, was registered on the report atExhibit – 75 by PW – 1 [Ganesh Bapurao Waikule]. Recording of hisstatement, which was in the nature of report, which formed thebasis to register the said Crime, is corroborated by the evidence ofPolice Ofcer, who recorded the said report and is examined as PW– 9 [Vinayak Abhiman Lambe]. His evidence shows that, on 13 Criappeal-871-2023.odt01/06/2015, when he was the Police Station Ofcer at KalamnuriPolice Station, information was received around 10.00 a.m. that,fght was going on in village Palodi and immediately, he got theinformation that, the injured were taken to Rural Hospital atKalamnuri. With the permission of the Doctor, he recorded thestatement of PW – 1 [Ganesh Bapurao Waikule] as per his say,wherein, he disclosed the incident and names of the assailants.10.The evidence of PW – 1 [Ganesh Bapurao Waikule] showsthat, the large part of his evidence is in the nature of omissions inhis report. His evidence indicates that, his supplementarystatement was also recorded. It is a settled position under the lawthat, the FIR is not an encyclopedia. As observed earlier, hisstatement, which was treated as the FIR, was registered when hewas hospitalized. Excluding the omissions, which are provedthrough the Police Ofcer, who recorded his statement, hisevidence shows that, on 01/06/2015, Accused No.3 [ShivanandShankerappa Satbhai] gave blow of axe on his head and there washeavy bleeding from his head. Accused No.4 [Ravi Subhash Satbhai]gave blow of koyta on his foot. Accused No.5 – Ramesh SubhashSatbhai threw big stone on his person. His mother [PW – 4], his wifeand his brother’s wife [PW – 6] ran towards neem tree to save theirlives raising uproar for help. Prakash Waikule and MadhavraoBangale [PW – 2] reached on the spot and he, his mother [PW – 4]were taken to the Hospital. His brother [Deceased] died due toassault by the Accused / Appellants. He denied the suggestionthat, he and Deceased were addicted to liquor and were in moneylending business and they were assaulted by unknown persons. Hissupplementary statement was recorded on 13/06/2015. Though inhis cross-examination, it has come that, he did not disclose theDoctor at Kalamnuri and at Hingoli as to how he sufered the 14 Criappeal-871-2023.odtinjuries and who caused the injuries to him, the same would not besufcient to disbelieve him, as his statement, which was treated asthe FIR, was recorded shortly after the incident in the Hospital.11.The evidence of PW – 4 [Sakhubai Bapurao Waikule] showsthat, on the day of incident, her son [Deceased] informedtelephonically that, the family members of Satbhai [Accused /Appellants] obstructed in cultivation of the land and so, she, herson – PW-1 [Ganesh Bapurao Waikule] and his wife – Malti wenttowards the feld. Deceased and his wife - Nandabai ShivanandWaikule [PW – 6 ] met them near the feld. They all went towardstheir feld. PW – 1 [Ganesh Bapurao Waikule] asked Accused No.1[Subhash Shankerappa Satbhai] as to why obstruction was created,to which, Accused No.1 [Subhash Shankerappa Satbhai] told that,he had asked PW – 1 [Ganesh Bapurao Waikule] not to cometowards the land. Accused No.1 [Subhash Shankerappa Satbhai]took out the koyta from the cattle shed and hit on the neck of PW -1 [Ganesh Bapurao Waikule], which was obstructed by PW - 1[Ganesh Bapurao Waikule] with his right hand. Accused No.4 [RaviSubhash Satbhai] and Accused No.11 [Suresh Narayan Sangekar]came from the backside of cattle shed. The Accused No.9 [PratimaGajanan Satbhai], Accused No.10 [Jyoti Shivanand Satbhai] andAccused No.8 [Hari Santosh Hingankar] came from the backside ofcattle shade with sticks in their hands. Accused No.11 [SureshNarayan Sangekar] gave blow of koyta on the head of PW – 1[Ganesh Bapurao Waikule], Accused No.2 [Gajanan ShankerappaSatbhai] assaulted PW – 1 [Ganesh Bapurao Waikule] by axe.Accused No.4 [Ravi Subhash Satbhai] gave blow by koyta on rightleg of PW – 1 [Ganesh Bapurao Waikule] and Accused No.1 [SubhashShankerappa Satbhai] gave blow by koyta on left leg of PW – 1[Ganesh Bapurao Waikule]. 15 Criappeal-871-2023.odt12.Further evidence of PW – 4 [Sakhubai Bapurao Waikule]shows that, the Deceased [Shivanand Bapurao Waikule] intervenedand Accused No.2 [Gajanan Shankerappa Satbhai] caught hold hiswaist and took him aside. Accused No.1 [Subhash ShankerappaSatbhai] asked PW – 1 [Ganesh Bapurao Waikule] whether he wantland or well and he will not leave him alive. Accused No.1 [SubhashShankerappa Satbhai] gave blow of koyta on the backside of neck ofthe Deceased. Accused No.4 [Ravi Subhash Satbhai] gave blow ofkoyta on the head of Deceased from left side. Accused No.11[Suresh Narayan Sangekar] gave blow of koyta on backside of waistof the Deceased. The Deceased fell down. Accused No.2 [GajananShankerappa Satbhai] gave blow by axe on calf of the Deceased.She raised alarm and Accused No.6 [Shankerappa Subhanji Satbhai]hit her on the head by stone. Accused No.9 [Pratima GajananSatbhai] and Accused No.10 [Jyoti Shivanand Satbhai] beat her bystick and she fell down. She prayed the Accused by folding handsnot to beat them. Accused No.8 [Hari Santosh Hingankar] beat herdaughters-in-law with stick. The daughters-in-law ran towardsneem tree raising uproar. Prakash Waikule and MadhavraoDhurpatrao Bangale [PW – 2] heard the uproar and reached on thespot of incident. The Accused fled on two motorcycles, triple seatand some ran away. Deceased asked Madhavrao DhurpatraoBangale [PW – 2] to provide him water. Prakash Waikule andMadhavrao Dhurpatrao Bangale [PW – 2] tied the scarf on theinjuries of PW – 1 [Ganesh Bapurao Waikule] and the Deceased. TheVillagers shifted them to the Hospital. They were initially taken toHospital at Kalamnuri and thereafter, PW – 1 [Ganesh BapuraoWaikule] and she were taken to the Hospital at Nanded. 16 Criappeal-871-2023.odt13.The above evidence of PW – 4 [Sakhubai Bapurao Waikule] isexcluding the omissions in her previous statement. Her evidenceshows that, she was hospitalized for twelve [12] days and herstatement was recorded after her discharge. It has come in thecross-examination of PW – 15 [Ravikant Amrut Sonune], who wasthe Police Inspector at Kalamnuri Police Station at the relevanttime and who carried the major part of investigation, that he triedto record the statement of injured lady, but she was not in mentalcondition to give statement. The Prosecution also examined theDoctor, who treated PW – 1 [Ganesh Bapurao Waikule] and PW – 4[Sakhubai Bapurao Waikule] at Nanded, as PW – 5 [Dr. SantoshVirchand Porwal]. Though it has come in the cross-examination ofPW – 5 [Dr. Santosh Virchand Porwal] that, the patient i.e. PW – 1[Ganesh Bapurao Waikule] and PW – 4 [Sakhubai Bapurao Waikule]were conscious and oriented, it is clear that, the statement of PW –4 [Sakhubai Bapurao Waikule] was recorded immediately after herdischarge from the Hospital. Thus, the delay in recording herstatement will not be fatal. She denied the suggestion that, whenshe reached on the spot of incident, her sons were lying in aninjured condition on the spot of incident. In the light of her abovediscussed evidence, her non-disclosure of names of the assailantsto the Doctor would not be fatal for the Prosecution.14.The evidence of PW – 6 [Nandabai Shivanand Waikule] showsthat, the incident took place on 01/06/015. Deceased and thelabourers started towards their feld and she went behind themwith break fast. Accused No.2 [Gajanan Shankerappa Satbhai],Accused No.3 [Shivanand Shankerappa Satbhai] and Accused No.6[Shankerappa Subhanji Satbhai] obstructed the agriculturalimplements near their feld and they told them that, they have noland and no way towards the side they were proceeding. Deceased 17 Criappeal-871-2023.odtasked the labourers to return and he will pay Rs.100/- to them,upon which, Accused No.2 [Gajanan Shankerappa Satbhai] toldthem to return and he will pay Rs.200/- to each of them. AccusedNo.3 [Shivanand Shankerappa Satbhai] asked as to why he shouldbe paid and abused. The labourers left. The said Accused startedquarreling with the Deceased. Deceased gave phone call to hisbrother – PW – 1 [Ganesh Bapurao Waikule]. She and Deceasedstarted returning to the village. On their way back, PW – 4[Sakhubai Bapurao Waikule], her brother-in-law – PW – 1 [GaneshBapurao Waikule] and his wife met them. The Deceased disclosedthe said incident to PW – 1 [Ganesh Bapurao Waikule]. Thereafter,they all went to their feld and when they reached near the hut,Accused No.3 [Shivanand Shankerappa Satbhai], Accused No.2[Gajanan Shankerappa Satbhai], Accused No.1 [SubhashShankerappa Satbhai], Accused No.6 [Shankerappa SubhanjiSatbhai] and Accused No.7 [Mankarnabai Subhash Satbhai] werepresent at the hut. PW – 1 [Ganesh Bapurao Waikule] questionedAccused No.1 [Subhash Shankerappa Satbhai] as to why theiragricultural implements were obstructed, upon which, AccusedNo.1 [Subhash Shankerappa Satbhai] replied that, he will tell as towhy the implements were obstructed.15.Further evidence of PW – 6 [Nandabai Shivanand Waikule]shows that, Accused No.1 [Subhash Shankerappa Satbhai] took outthe koyta from the hut and gave blow on the neck of PW – 1[Ganesh Bapurao Waikule], which he obstructed by his right hand.Accused No.4 [Ravi Subhash Satbhai], Accused No.5 [RameshSubhash Satbhai], Accused No.11 [Suresh Narayan Sangekar],Accused No.2 [Gajanan Sankerappa Satbhai], Accused No.3[Shivanand Shankerappa Satbhai], Accused No.8 [Hari SantoshHingankar] and their wives came from the backside of hut. Accused 18 Criappeal-871-2023.odtNo.11 [Suresh Narayan Sangekar] took out koyta from the hut andgave blow on the head of PW – 1 [Ganesh Bapurao Waikule].Accused No.3 [Shivanand Shankerappa Satbhai] and Accused No.2[Gajanan Shankerappa Satbhai] gave blow of axe on the head of PW– 1 [Ganesh Bapurao Waikule]. PW – 1 [Ganesh Bapurao Waikule]fell down. Accused No.2 [Gajanan Shankerappa Satbhai] andAccused No.3 [Shivanand Shankerappa Satbhai] gave blow of axe onthe back of PW – 1 [Ganesh Bapurao Waikule]. Accused No.1[Subhash Shankerappa Satbhai] gave blow by koyta on right calf andfront portion of foot of PW – 1 [Ganesh Bapurao Waikule]. AccusedNo.1 [Subhash Shankerappa Satbhai] said not to keep PW – 1[Ganesh Bapurao Waikule] alive.16.In her further evidence, PW – 6 [Nandabai Shivanand Waikule]deposed that, Accused No.1 [Subhash Shankerappa Satbhai] gaveblow by koyta on the neck of Deceased. Accused No.2 [GajananShankerappa Satbhai] gave blow by axe on the head of Deceased.Deceased fell down. Accused No.11 [Suresh Narayan Sangekar]gave blow by koyta on the waist of Deceased. Accused No.2[Gajanan Shankerappa Satbhai] gave blow by axe on calf of theDeceased. She, her sister-in-law and mother-in-law [PW – 4] randownward raising alarm. Accused No.6 [Shankerappa SubhanjiSatbhai] hit stone on the head of her mother-in-law [PW – 4]. Onhearing their uproar, Madhavrao Dhurpatrao Bangale [PW – 2] andPrakash Waikule came on the spot. PW – 2 [ Madhavrao DhurpatraoBangale] provided water to the Deceased and tied the scarf to theneck of Deceased. Prakash Waikule tied the scarf to the head ofPW – 1 [Ganesh Bapurao Waikule]. The wife of PW – 1 [GaneshBapurao Waikule] went for calling the people. They all were takento the Hospital by the Villagers. In the Hospital, she came to knowthat, her husband died. Her brother-in-law - PW – 1 [Ganesh 19 Criappeal-871-2023.odtBapurao Waikule] and mother-in-law - PW – 4 [Sakhubai BapuraoWaikule] were taken to Nanded and she was treated at Kalamnuri.17.The above evidence of PW – 6 [Nandabai Shivanand Waikule]is excluding the improvements or omissions from / in her statementgiven to the Police. Her above discussed evidence remainedunshaken in the cross-examination.18.The evidence of PW – 2 [Madhavrao Dhurpatrao Bangale]shows that, he was the resident of village Palodi. His agriculturalland was adjacent to the land of Accused persons. He knew PW – 1[Ganesh Bapurao Waikule] and Deceased. He deposed that, theincident took place on 01/06/2015. When he was working in hisagricultural feld in between 8.00 a.m. to 8.30 a.m., the wife ofDeceased PW – 6 [Nandabai Shivanand Waikule] and wife of PW – 1[Ganesh Bapurao Waikule] came to him running and asking for helpsaying that, the persons belonging to Satbhai family were beatingtheir husbands. He rushed towards Akhada [place of keepingcattles] and Prakash Waikule followed him. He saw Accused No.1[Subhash Shankerappa Satbhai], Accused No.6 [ShankerappaSubhanji Satbhai], Accused No.3 [Shivanand Shankerappa Satbhai],Accused No.2 [Gajanan Shankerappa Satbhai], Accused No.5[Ramesh Subhash Satbhai] and other two [2] persons, who hadcovered their faces with scarfs and three [3] ladies belonging to theSatbhai family. He saw the said Accused persons running towardsthe village. PW – 1 [Ganesh Bapurao Waikule] was in an injuredcondition having injuries on head, forearm, leg and foot. TheDeceased was lying in an injured condition with injuries on his neckand neck was half cut. He gave phone call to his brother and askedhim to send the vehicle. He along with his brother and othersshifted the injured to the Hospital. Shivanand Bapurao Waikule[Deceased] was reported by the Doctor to be dead. 20 Criappeal-871-2023.odt19.Though he was cross-examined, nothing has come so as todiscard his above referred evidence. Some omissions /improvements are brought in his cross-examination, which are oftrivial nature and in no way afect his testimony. His acquaintancewith the witnesses and the Accused is quite natural, as he was theresident of same village and having his agricultural land adjacent tothe land of Accused.20.The evidence of PW – 3 [Dr. Rajesh Babasaheb Mudikar]shows that, he was serving as the Medical Ofcer in Rural Hospital,Kalamnuri. On 01/06/2015, he was on duty in the Hospital at about11.00 a.m. PW – 1 [Ganesh Bapurao Waikule], PW – 4 [ SakhubaiBapurao Waikule] and Shivanand Bapurao Waikule [Deceased] werebrought to the Hospital by their relatives. On examination, hefound Shivanand Bapurao Waikule to be dead.21.On examination of PW – 1 [Ganesh Bapurao Waikule], hefound the following injuries on his person :-“1- Incised wound 7 x 3 x 3 cm. On right leg lower part anterior aspect.2 -Incised wound 3 x 2 x 2 cm. On left upper part anterior aspect. 3 -Incised wound 7 x 2 bone deep cm. On mid frontal region.4 -Incised wound 5 x 3 x 3 cm. On right leg upper part anterior aspect.5 -Incised wound 2 x 1 x 1 cm. on right thumb palm surface.6 -Incised wound 5 x 2 x 2 cm. On left foot upper posterior sole.7 -Incised wound 3 x 2 x 2 cm. On right forearm extensor aspect.8 -Contusion 4 x 4 cm. On left side of chest over 6 to 8 ribs.”21.1The above Injuries Nos.1 to 7 were simple and causedwithin 24 hours, possible by hard and sharp object. Injury No.8 waspossible by hard object. Injury Nos.1 to 7 were also possible bykoyta. Injury No.8 was also possible by opposite side of axe. He 21 Criappeal-871-2023.odtreferred him to Civil Hospital at Hingoli. The Police provided thecopy of the prescription and C.T. Scan report, which revealed that,Injury No.8 was grievous, as there was fracture of 6th, 8th and 9thribs. Accordingly, he issued the Medico Legal Certifcate at Exhibit– 85. It has come in the cross-examination that, Injury Nos.1 to 7were also possible by knife. 22.He examined PW – 4 [Sakhubai Bapurao Waikule] and foundthe following injuries on her person :“1-CLW 3 x 1 x 1 cm. on frontal to parietal region on left side.2 -Contusion 3 x 2 cm. On dorsal aspect of right writs.”22.1The said injuries were simple and caused within 24hours. Injury No.1 was possible by hard and blunt object and InjuryNo.2 was possible by hard object. Injuries were also possible bystick, stone and opposite side of axe. He referred her to CivilHospital at Hingoli. The Police supplied the copy of theprescription and he found fracture of ‘distal shaft of right wrist andstyloid process of right ulna’. There was cerebral contusion on leftparietal region of brain with post traumatic sub-archoined withcerebral edema. The fracture injuries were grievous in nature. Heissued the Medico Legal Certifcate at Exhibit – 86. In the cross-examination, it has come that, the injuries found on her personwere possible by fall on hard surface from bullock-cart.23.His further evidence shows that, on 02/06/2015 i.e. on thenext day, PW – 6 [Nandabai Shivanand Waikule] was brought to theHospital for examination by relatives. On her examination, hefound the following injuries on her person :“ 1 -Contusion 3 x 2 cm. Just below left eye. 2 -Contusion 3 x 3 cm. Middle one third of anterior aspect of left eye.” 22 Criappeal-871-2023.odt23.1The injuries were caused within 24 hours and simple innature and were possible by hard object. The Injuries were alsopossible by stick, stone and opposite side of axe. He issued MedicoLegal Certifcation at Exhibit – 87.24.Though in the cross-examination of the above referredMedical Ofcer, it has come that, the Injury Certifcates at Exhibits85 and 86 were issued on 15/07/2015 and at Exhibit – 87 on14/07/2015, respectively, it would not afect the credibility of histestimony, as his cross-examination shows that, the said certifcateswere issued pursuant to the letter dated 11/07/2015 received fromthe Police. It has come in the cross-examination, in clear terms that,he recorded the history of injuries found on the person of PW – 1[Ganesh Bapurao Waikule] and PW – 4 [Sakhubai Bapurao Waikule].The history recorded was that of assault.25.Further evidence of PW – 3 [Dr. Rajesh Babasaheb Mudikar]shows that, on the same day i.e. on 01/06/2015, he performed thePostmortem on the body of Shivanand Bapurao Waikule [Deceased]from 05.05 p.m. to 06.05 p.m. and he found the following externalinjuries :-“1 -Chop would over neck just below hairline horizontally place and admesuring 4 x 2 cm. x Spinal cord deep with fracture of spinous process of C-2 and C-3 vertebra.2 -Incised wound over center of scalp vertically placed admeasuring 6 x 3 x 2 cm.3 -Incised wound over lateral side of neck surrounding right side of neck admeasuring 8 x 2 x 0.5 cm.4 -Chop wound over upper side of right buttock vertically placed admeasuring 7 x 3 bone deep.5 -Incised wound over right leg just below knee joint vertically placed admeasuring 10 x 3 x 2 cm. 23 Criappeal-871-2023.odt6 -Incised wound over lateral aspect of upper one third of right thigh vertically placed and admeasuring 3 x 2 x 1 cm.7 -Incised wound left leg just below knee joint vertically placed admeasuring 2 x 2 x 0.5 cm.8 -Contused abrasion over upper lateral part of left shoulder 3 x 2 cm. Horizontally placed.”25.1On internal examination, he found under scalp injury oncenter of scalp vertically placed 6 x 2 x 2 cm. Brain, right and leftlungs, heart, liver and gall bladder, pancreas, supra-nails, spleen,kidneys were found pale. He found chop wound over left of neckjust below hairline horizontally placed admeasuring 4 x 2 cm. Spinalcord deep with fracture spinous process of C-2 and C-3 vertebrawith hemi section of spinal cord. The injuries were ante-mortemand Deceased probably died within four hours of his last meal. Onpostmortem, he opined the cause of death as “neurogenic as wellhemorrhagic shock due to injury to spinal cord with other multipleinjuries”. He issued the provisional cause of death certifcate atExhibit – 88 and the Postmortem Report at Exhibit – 89.25.2Further evidence of PW – 3 [Dr. Rajesh BabasahebMudikar] shows that, Injury Nos.1 and 4 were possibly by axe andInjury Nos.2, 3, 5, 6 and 7 were possible by hard and sharp object.Injury No.8 was possible by hard object. The incised wound waspossible by koyta. The stone and stick were the hard object. InjuryNo.1 was sufcient to cause death in ordinary course of nature.Injury Nos.4 to 8 were not fatal injuries. There was no fracture toskull associated with Injury No.2. Injury No.3 was not possible byaxe. Injury No.8 was simple. Injury Nos.2, 3, 5, 6 and 7 were alsopossible by knife.26.Further evidence of PW – 3 [Dr. Rajesh Babasaheb Mudikar]shows that, on the same day i.e. 01/06/2015 at about 9.30 a.m., 24 Criappeal-871-2023.odtAccused No.1 [Subhash Shankerappa Satbhai], Accused No.2[Gajanan Shankerappa Satbhai], Accused No.3 [ShivanandShankerappa Satbhai], Accused No.5 [Ramesh Subhash Satbhai],Accused No.6 [Shankerappa Subhanji Satbhai] and Accused No.7[Mankarnabai Subhash Satbhai] were brought to the Hospital bytheir relatives in injured condition. He examined them all. 27.On examination of Accused No.1 [Subhash ShankerappaSatbhai], he found the following injuries :“1- Contusion 3 x 3 cm. On forehead over left eye brow.2 - Contusion 3 x 2 cm. On right temporal region of scalp.3 -Abrasion 1 x 0.5 cm. On medical aspect of middle one third of right leg.” 27.1The injuries were simple in nature and caused within 6hours. Injury Nos.1 and 2 were possible by hard object and InjuryNo.3 was possible by hard and sharp object. He issued the MedicoLegal Certifcate at Exhibit – 81.28. On examination of Accused No.2 [Gajanan ShankerappaSatbhai], he found the following Injury :“1-CLW 0.5 x 0.5 cm. on central region of forehead.” 28.1The injury was simple in nature and caused within 6hours. It was possible by hard object. He issued the Medico LegalCertifcate at Exhibit – 80. 29.On examination of Accused No.3 [Shivanand ShankerappaSatbhai], he found the following injuries.“1-CLW 3 x 1 x 0.5 cm. On right temporal region of scalp. 2 -Contusion 2 x 2 cm. On middle of right arm lateral aspect.” 29.1The injuries were simple in nature and caused within 6hours and may be possible by hard and blunt object. He issued theMedico Legal Certifcate Exhibit – 79. 25 Criappeal-871-2023.odt30.On examination of Accused No.5 [Ramesh Subhash Satbhai],he found the following injury :“1-Contusion 3 x 3 cm. On left hand hypothenar region.”30.1The injury was simple in nature and caused within 6hours and may be possible by hard object. He issued the MedicoLegal Certifcate at Exhibit – 83. 31.On examination of Accused No.6 [Shankerappa SubhanjiSatbhai], he found the following injuries. “1-CLW 3 x 1 x 0.5 cm. On left temporal region of scalp. 2 -Abrasion 2 x 0.5 cm. On dorsal aspect of left hand.”31.1The injuries were simple in nature and caused within[six] 6 hours. They were possible by hard and sharp object. Heissued the Medico Legal Certifcate at Exhibit – 82.32.On examination of Accused No.7 [Mankarnabai SubhashSatbhai], he found the following Injury :-“1-Contusion 5 x 2 cm. On back of trunk on left side.”32.1The injury was simple in nature and caused within 6hours and was possible by hard object. He issued the Medico LegalCertifcate at Exhibit – 84.33.The evidence of PW – 5 [Dr. Santosh Virchand Porwal] showsthat, since 2005, he was serving at Yashoda Hospital, Nanded asMedical Ofcer. On 01/06/2015, PW – 1 [Ganesh Bapurao Waikule]and his mother – PW – 4 [ Sakhubai Bapurao Waikule] were broughtto the Hospital with injuries on their person. He examined themand got their C.T Scan done and admitted them for treatment.34.On examination of PW – 1 [Ganesh Bapurao Waikule], hefound the following injuries :- 26 Criappeal-871-2023.odt“1- Sutured wound over mid frontal region admeasuring5 cm. Oblique. 2 -Abrasion over right forearm posterior surface middle third admeasuring 3 x 3 cm. 3 -Sutured wound over right leg upper third anterior surface admeasuring 5 cm. Transverse.4 -Sutured wound over left leg upper third anterior surface 5 cm. Oblique.5 -Abrasion over left chest posteriorly admeasuring 3 x3 cm. 6 -Abrasion over right leg lower third anterior surface admeasuring 3 x 3 cm. 7 -On X-ray of chest there found fracture of left 8th 6th and 9th ribs posteriorly with right sided pleural efusion is noted.”34.1The aforesaid injuries Nos.2, 5 and 6 were fresh, simplein nature and were possible by hard and blunt object. Injury No.7was fresh, grievous in nature and was possible by hard and bluntobject. He issued the Medico Legal Certifcate at Exhibit – 95.35.On examination of PW – 4 [Sakhubai Bapurao Waikule], hefound the following injuries:“1- Sutured wound over mid frontal region admeasuring 5 cm.Oblique. 2 -On X-ray of right wrist there found fracture of crustal shaft of right radius with fracture styloid process on right ulna. 3 -From the report of C.T. Scan there found cerebral contusion of left high parietal region with post traumatic arachnoid hemorrhage with cerebral edema.”35.1The injury Nos.2 and 3 were fresh, simple in nature andwere possible by hard and blunt object. He issued the Medico LegalCertifcate at Exhibit – 96. Injury No.1 was possible by the use ofaxe and other injuries were possible by stick.36.The cross-examination could not create any dent in theevidence of above referred Medical Ofcer. 27 Criappeal-871-2023.odt37.The evidence of PW – 10 [Dinkar Baburao Kokare] shows that,on 01/06/2015, the Police Ofcer Mr. Ravikant Amrut Sonune [PW –15] called him in the Kalamnuri Police Station. From the PoliceStation, he, Mr. Sonune and his stafs went to the spot of incident inVillage Palodi. There was one hut and one tin shed at the spot ofincident. There were blood stained clothes on the spot. The ironand wooden cots were kept on the spot of incident. There was onewater reservoir. The Police prepared the Spot Panchanama, whichwas read over to him and he along with the other panch signed onthe same. The Spot Panchanama at Exhibit – 114 is brought onrecord. His evidence shows that, the Police collected the soil, bloodmixed soil, blood stained stones and stick from the spot. From thecross-examination, it is seen that, the Spot Panchanama was notseriously disputed. Nothing has come so as to discard the evidenceof this panch witness. His evidence gets corroboration from thetestimony of PW – 15 [Ravikant Amrut Sonune], who was the PoliceInspector at the Kalamnuri Police Station. His evidence shows that,on 01/06/2015, he went to the spot of incident after the crime wasregistered on the statement / report of PW – 1 [Ganesh BapuraoWaikule] regarding the incident. Two panchas were summoned.The Spot Pacnahnama at Exhibit – 114 was prepared and thearticles such as, blood stained stones, stick, soil and blood stainedsoil came to be seized from the spot of incident. From the cross-examination, it is seen that, the going of this Police Ofcer on thespot and preparing the Spot Panchanama was not disputed. 38.Evaluation of the above referred evidence shows that, PW – 1[Ganesh Bapurao Waikule], PW - 4 [Sakhubai Bapurao Waikule] andPW – 6 [Nandabai Shivanand Waikule] were the eyewitnesses to theincident. Since the Accused were known to them, there is noquestion of establishing the identity. Though the evidence of PW – 28 Criappeal-871-2023.odt1 [Ganesh Bapurao Waikule] in respect of the events prior to theincident of assault are not taken into consideration being theomissions, the evidence of PW – 4 [Sakhubai Bapurao Waikule] andPW – 6 [Nandabai Shivanand Waikule] fnd corroboration in respectof the incident of assault. The consistent evidence of PW – 4[Sakhubai Bapurao Waikule] and PW – 6 [Nandabai ShivanandWaikule] shows that, the Deceased and PW – 6 [NandabaiShivanand Waikule] were obstructed while they were proceedingtowards their agricultural feld. When PW – 1 [Ganesh BapuraoWaikule] was informed about the same by the Deceased, PW – 1[Ganesh Bapurao Waikule] and PW – 4 [Sakhubai Bapurao Waikule]started towards the feld and they met the Deceased and PW – 6[Nandabai Shivanand Waikule]. They all went ahead to question theAccused / Appellants about their act of restraining the Deceasedfrom proceeding further. The evidence of PW – 2 [MadhavraoDhurpatrao Bangale] shows that, he reached on the spot ofincident after hearing hue and cry of the women witnesses andwhen he reached the spot of incident, he saw the Deceased andwitnesses in an injured condition. Though these witnesses werecross-examined, nothing has come so as to discard their evidence.As earlier observed, their above discussed evidence is sans theomissions / improvement.39.By examining the Medical Ofcer, the Prosecution has provedthat, Shivanand Bapurao Waikule, who was the brother and son ofPW – 1 [Ganesh Bapurao Waikule] and PW – 4 [Sakhubai BapuraoWaikule], respectively, succumbed to the injuries sufered in theassault. The cause of death of Shivanand Bapurao Waikule isproved. The Prosecution has clearly established that, the death ofShivanand Bapurao Waikule as Homicidal. Through the medicalevidence, the Prosecution has proved the injuries on the person of 29 Criappeal-871-2023.odteyewitnesses i.e. PW – 1 [Ganesh Bapurao Waikule], PW – 4[Sakhubai Bapurao Waikule] and PW – 6 [Nandabai ShivanandWaikule]. It is needless to state that, the testimony of the injuredwitnesses stands on higher pedestal. Soon after the incident, theCrime was registered on the report of PW – 1 [Ganesh BapuraoWaikule], recorded while he was in the hospital. 40.The above discussed medical evidence i.e. of PW – 3 [Dr.Rajesh Babasaheb Mudikar] has proved the injuries on theAccused / Appellants i.e. Accused No.1 [Subhash ShankerappaSatbhai], Accused No.2 [Gajanan Shankerappa Satbhai], AccusedNo.3 [Shivanand Shankerappa Satbhai], Accused No.5 [RameshSubhash Satbhai], Accused No.6 [Shankerappa Subhanji Satbhai]and Accused No.7 [Mankarnabai Subhash Satbhai]. The age ofinjuries on the Appellants / Accused and that of the witnesses,clearly relate them to the incident as deposed by the injuredeyewitnesses. The defence of the Accused / Appellants is that, theinjured witnesses were assaulted by the unknown persons, andthey intervened and therefore, they sufered the above referredinjuries on their person. In absence of any material in support ofthe said defence, the said defence does not appear probable. Thespot of incident gets corroboration from the spot panch and theInvestigating Ofcer. The above discussed evidence on record iscogent, convincing and acceptable. It is established beyond allreasonable doubt by the Prosecution that the Deceased died dueto assault in the above referred incident and the eyewitnessessufered injuries in the above referred incident. 41.Learned Senior Advocate for the Appellants relied on thefollowing Judgments in support of his contention that, prejudice iscaused to the Accused / Appellants, as the Charge was framed with 30 Criappeal-871-2023.odtthe aid of Section 149 of IPC and the conviction is recorded for theirindividual act.1.Subran Alias Subramanian Vs. State of Kerala; 1993 AIR [SCW] 10142.Saddak Hussain Vs. State [NCT of Delhi] in CRL.A 717/20183.Suraj Pal Vs. State of Uttar Pradesh; 1955 AIR [SC] 4194.Parshuram Vs. State of Madhya Pradesh; 2023 [4] Crimes [SC] 1735.Gurwinder Singh @ Sonu Etc. Vs. State of Punjab and Another; 2018 AIR [SC] 227742.Learned Advocate appearing for the Informant, assisting theProsecution, relied on the following Judgments in support of thecontention that, no prejudice is caused to the Accused / Appellants.1.Willie [William] Slaney Vs. State of M.P; AIR 1956 SC 1162.Mala Singh & Ors. Vs. State of Haryana; 2019 AIR [SC]102643.We have gone through the said Judgments. In the case onhand, admittedly, the Charge was framed with the aid of Sections147, 148 and 149 of IPC and the Appellants / Accused are acquittedof the said Charge. The Charge clearly spelt out the incident withrequired details. The witnesses examined by the Prosecution werecross-examined by the learned Advocates representing theAppellants / Accused at considerable length. The witnesses wereexamined by the Prosecution includes the eyewitnesses to theincident. The Accused / Appellants were fully aware of the casethat was being put against them. The incriminating evidence wasput to the Accused / Appellants in the statement recorded underSection 313 of Cr.PC. Section 464 of Cr.PC provides that, no fndingsentence or order by a Court of competent jurisdiction shall bedeemed invalid merely on the ground that no Charge was framed or 31 Criappeal-871-2023.odton the ground of any error, omission or irregularity in the chargeincluding any misjoinder of charges, unless, in the opinion of theCourt of appeal, confrmation or revision, a failure of justice has infact been occasioned thereby. Except bare argument, there isnothing to show that, prejudice was caused to the Accused /Appellants due to their conviction, despite acquittal for the abovereferred ofences punishable under Sections 147, 148 and 149 ofIPC. In the light of above reasons, we are of the considered viewthat, no failure of justice has occasioned. Thus, we are unable toaccept the contention in respect of prejudice.44.The evaluation of the above referred evidence of the injuredeyewitnesses unequivocally established that, the Appellants /Accused had not come with the preparation to assault theDeceased and the witnesses. It was not a premeditated attack.There is absolutely no evidence to show that, the Accused /Appellants were already armed and lodged the attack as soon asthe Deceased and injured eyewitnesses had come. What theevidence unequivocally goes to show is that, the Deceased and theinjured eyewitnesses had gone to the place of incident to questionthe Accused / Appellants for restraining the Deceased and PW – 6[Nandabai Shivanand Waikule] from going to the agricultural feldand due to the quarrel, the incident of assault took place.Reference can be made to the cross-examination of PW – 1 [GaneshBapurao Waikule], wherein, it has come that, it was a suddenincident. The cross-examination of PW – 4 [Sakhubai BapuraoWaikule] shows that, there was no incident of beating prior to theincident. The evidence of above referred injured eyewitnessesshows that, the weapons were removed from the hut. Thisevidence on record shows that, the death of Shivanand BapuraoWaikule, though Homicidal, will not fall within the ambit of Section 32 Criappeal-871-2023.odt300 of IPC, which is the ofence of Murder. The act of HomicidalDeath would fall within Exception - 4 of Section 300 of IPC, whichreads as under :-“Exception 4. - Culpable homicide is not murder if it is committedwithout premeditation in a sudden fght in the heat of passion upon asudden quarrel and without the ofender having taken undueadvantage or acted in a cruel or unusual manner. The explanation tothe said exception speaks that, it is immaterial in such cases whichparty ofers the provocation or commits the frst assault.” 44.1Considering the evidence as discussed above, in ourconsidered view, the learned Trial Court has erred in recording theconviction for the ofence punishable under Section 302 of IPC.45.The above evidence of the injured eyewitnesses completelyrules out the unlawfully assembly by the Accused / Appellants.True it is that, it is settled position under the law that, an assemblycan subsequently become unlawful. The Accused / Appellants werealready present on the spot of incident. It is only after theDeceased and injured had gone to the spot of incident, the incidentof assault took place suddenly out of quarrel. The evidence do notshow that, the Accused / Appellants shared common object to killthe Deceased [Shivanand Bapurao Waikule] and cause injury to thewitnesses. The evidence on record clearly shows absence ofessential ingredients for the ofence punishable under Sections147, 148 and 149 of IPC and therefore, it will have no application tothe case on hand. The learned Trial Court has rightly acquitted theAccused / Appellants for the ofence punishable under Sections147, 148 and 149 of IPC.46.The above discussed evidence of PW – 4 [Sakhubai BapuraoWaikule] and PW – 6 [Nandabai Shivanand Waikule] is consistent inrespect of assault by Accused No.1 [Subhash Shankerappa Satbhai]by koyta on the backside of neck / neck of Deceased and assault byAccused No.11 [Suresh Narayan Sangekar] by koyta on the backside 33 Criappeal-871-2023.odtof waist / waist of the Deceased. As regards the assault by AccusedNo.2 [Gajanan Shankerappa Satbhai], evidence of PW- 4 [SakhubaiBapurao Waikule] shows assault by axe on calf of Deceased[Shivanand Bapurao Waikule] and evidence of PW – 6 [NandabaiShivanand Waikule] shows assault by axe on the head of Deceased[Shivanand Bapurao Waikule]. The medical evidence shows incisedwound over center of scalp of Deceased [Shivanand BapuraoWaikule]. Thus there is corresponding injury of assault by AccusedNo.2 [Gajanan Shankerappa Satbhai] on the head of Deceased[Shivanand Bapurao Waikule]. Though evidence of PW – 4[Sakhubai Bapurao Waikule] shows that, Accused No.4 [RaviSubhash Satbhai] assaulted the Deceased by koyta on the headfrom left side, there is no corresponding injury on the left side ofhead of Deceased [Shivanand Bapurao Waikule] as can be seenfrom the medical evidence. Further, PW – 6 [Nandabai ShivanandWaikule] is completely silent on the point of assault by AccusedNo.4 [Ravi Subhash Satbhai] over Deceased [Shivanand BapuraoWaikule]. There is no corroboration at all to the testimony of PW –4 [Sakhubai Bapurao Waikule] attributing assault by PW – 4[Sakhubai Bapurao Waikule] on Deceased.47.The medical evidence shows that, Injury No.1 on Deceasedwas sufcient to cause death in ordinary course of nature. The saidinjury is attributed to Accused No.1 [Subhash Shankerappa Satbhai]in the consistent evidence of PW – 4 [Sakhubai Bapurao Waikule]and PW – 6 [Nandabai Shivanand Waikule]. The medical evidenceshows that, there was no fracture to skull associated with InjuryNo.2. Injury No.3 was 0.5 cm deep and Injury Nos.4 to 8 were notfatal injuries. From this, it is clear that, fatal blow was lodged byAccused No.1 [Subhash Shankerappa Satbhai]. The weapon used,the body part on which assault is lodged by Accused No.1 [Subhash 34 Criappeal-871-2023.odtShankerappa Satbhai] and the medical evidence shows theintention of Accused No.1 [Subhash Shankerappa Satbhai] to causesuch bodily injury as is likely to cause death.48.The evidence of eyewitnesses shows that, injuries on PW – 1[Ganesh Bapurao Waikule] were the result of assault by AccusedNo.1 [Subhash Shankerappa Satbhai], Accused No.2 [GajananShankerappa Satbhai], Accused No.3 [Shivanand ShankerappaSatbhai], Accused No.4 [Ravi Subhash Satbhai] and Accused No.11[Suresh Narayan Sangekar]. Though PW – 1 [Ganesh BapuraoWaikule] deposed of throwing big stone on him by Accused No.5[Ramesh Subhash Satbhai], the medical evidence do not relate theinjuries sufered by him with stone. Further evidence of othereyewitnesses i.e. PW – 4 [Sakhubai Bapurao Waikule] and PW – 6[Nandabai Shivanand Waikule] nowhere show assault on PW – 1[Ganesh Bapurao Waikule] by Accused No.5 [Ramesh SubhashSatbhai].49.As regards the injuries of PW – 4 [Sakhubai Bapurao Waikule]are concerned, the evidence of Doctor shows that, the injuries onher person were possible by fall on hard surface. It has come in theevidence of PW - 4 [Sakhubai Bapurao Waikule] that, she fell down.The evidence of PW – 1 [Ganesh Bapurao Waikule] shows that, hismother [PW – 4] fell down in the incident and there were stones onthe spot of incident, as it was hilly area. Thus, it cannot be said withall certainty that, the injuries on PW – 4 [Sakhubai BapuraoWaikule]] were the result of the assault.50.As regards the injuries on PW – 6 [Nandabai ShivanandWaikule] are concerned, there is no clear evidence, as her evidencethat, she was assaulted by Accused No.9 [Pratima Gajanan Satbhai]and Accused No.10 [Jyoti Shivanand Satbhai], was an improvement/ 35 Criappeal-871-2023.odtomission from / in her previous statement. More so, the defenceevidence of DW – 1 [Dr. Madhav Sambhaji Vibhute], who was theMedical Ofcer in Rural Hospital, Umari, Taluka Umari, DistrictNanded, proved that, PW – 10 [Jyoti Shivanand Satbhai] had cometo the Hospital on 30/05/2015 at about 11.55 a.m. with the historyof fever since last seven [7] days and she was admitted in theHospital till 8.00 a.m. of 04/06/2015. The medical papers arebrought on record in the evidence of this witness. The incident isdated 01/06/2015. Therefore, the presence of Accused No.10[Jyoti Shivanand Satbhai] on the spot at the time of incident isrendered doubtful.51.It is true that, it has come in the evidence of PW – 17 [MukundRamrao Deshmukh], who was the Police Inspector at KalamnuriPolice Station and who carried some part of investigation, thatAccused No.11 [Suresh Narayan Sangekar ] was working in his ofceon 01/06/2015, will not by itself sufcient to hold that the AccusedNo.11 [Suresh Narayan Sangekar] was not present on the spot ofincident, as the incident is of morning hours and not during ofcehours. Except this, no other material is brought on record by thedefence to show that, Accused No.11 [Suresh Narayan Sangekar ]was at his ofce at the time of incident.52.The other evidence is that of PW – 7 [Vijay Deosing Chavan],who acted as the panch witness for discovery and seizure of two [2]axe, one [1] koyta and one [1] stick at the instance of Accused No.7[Mankarnabai Subhash Satbhai]. As her evidence in respect of heractive participation in the assault is not proved, the said discoveryat her instance would be of no assistance for the Prosecution.There is evidence of PW – 8 [Anil Hariharrao Sarode], who acted aspanch for discovery and seizure of one [1] axe at the instance of 36 Criappeal-871-2023.odtAccused No.2 [Gajanan Shankerappa Satbhai]. His evidencenowhere shows that, the said axe was stained with blood. The CAreports at Exhibits – 195 and 197 shows that, the blood group ofDeceased [Shivanand Bapurao Waikule] and Accused No.2 [GajananShankerappa Satbhai] was of the similar group i.e. “O”. Therefore,the detection of blood of group “O” on axe [Article – 14] and humanblood on axe [Article-13] would be of no assistance to theProsecution. 53.PW – 11 [Kanta Bapurao Bedre [Patil]], who was examined aspanch witness, did not support the case of Prosecution. PW – 12[Shivaji Purabhinath Ghogre] was the Police Constable, who carriedmuddemal to the Chemical Analyzer. PW – 13 [Niranjan TanhajiSataw] and PW – 14 [Kishan Yadavrao Dhengle] are thePhotographers, who clicked the photos during the course ofinvestigation. PW – 15 [Ravikant Amrut Sonune], PW – 16[Anantkumar Bapurao Waghmare] and PW – 17 [Mukund RamraoDeshmukh] were the Police Ofcers, who investigated the Crimeand fled Charge-sheet, supplementary Charge-sheet. 54.The evaluation of above referred evidence proved that,Accused No.1 [Subhash Shankerappa Satbhai] is liable for causingHomicidal Death of Deceased not amounting to Murder and his actwould fall within the ambit of Section 304 [Part-I] of IPC. AccusedNo.1 [Subhash Shankerappa Satbhai] is behind the bars for a periodof nine [9] years, fve [5] months and eighteen [18] days. Thepunishment provided for the ofence punishable under Section 304[Part-I] of IPC is imprisonment for life or imprisonment of eitherdescription for a term which may extend to ten [10] years and shallalso be liable to fne. Accused No.1 [Subhash Shankerappa Satbhai]has undergone the imprisonment for a period of little short of ten[10] years. We, therefore, sentence him to sufer imprisonment for 37 Criappeal-871-2023.odtthe period which he has undergone and maintain the amount offne and default sentence imposed by the learned Trial Court.55.The acts of Accused No.2 [Gajanan Shankerappa Satbhai] andAccused No.11 [Suresh Narayan Sangekar] for assault on theDeceased would attract the ofence punishable under Section 324of IPC, which pertains to voluntarily causing hurt by dangerousweapons or means. The punishment provided for the said ofenceis imprisonment of either description for a term which may extendto three [3] years, or with fne, or with both. Accused No.2 [GajananShankerappa Satbhai] is behind the bars for a period of nine [9]years, fve [5] months and eighteen [18] days. Accused No.11[Suresh Narayan Sangekar] is behind the bars for a period of six [6]years, three [3] months and twenty fve [25] days. We, therefore,sentence Accused No.2 [Gajanan Shankerappa Satbhai] and AccusedNo.11 [Suresh Narayan Sangekar] to sufer imprisonment for aperiod of one [1] year with fne of Rs.5000/- each, in default, tosufer Rigorous Imprisonment for three [3] months. 56.As regards the assault and injuries on PW – 1 [GaneshBapurao Waikule] are concerned, Accused No.1 [SubhashShankerappa Satbhai], Accused No.2 [Gajanan ShankerappaSatbhai], Accused No.3 [Shivanand Shankerappa Satbhai], AccusedNo.4 [Ravi Subhash Satbhai] and Accused No.11 [Suresh NarayanSangekar] would be liable for punishment for the ofencepunishable under Section 324 of IPC. The grievous injuries in thenature of fractures to ribs of PW – 1 [Ganesh Bapurao Waikule] isnot corresponding to assault by any of the said Accused. AccusedNo.3 [Shivanand Shankerappa Satbhai] is behind the bars for aperiod of nine [9] years, fve [5] months and twenty two [22] days. 38 Criappeal-871-2023.odtAccused No.4 [Ravi Subhash Satbhai] is on bail and was behind thebars for a period of one [1] month and eleven [11] days. We,therefore, sentence Accused No.1 [Subhash Shankerappa Satbhai],Accused No.2 [Gajanan Shankerappa Satbhai], Accused No.3[Shivanand Shankerappa Satbhai], Accused No.4 [Ravi SubhashSatbhai] and Accused No.11 [Suresh Narayan Sangekar] to suferImprisonment for a period of one [1] month with fne of Rs.5000/-each, in default, to sufer imprisonment for three [3] months.57.As regards the Accused i.e. Accused No.5 [Ramesh SubhashSatbhai], Accused No.6 [Shankerappa Subhanji Satbhai], AccusedNo. 7 [Mankarnabai Subhash Satbhai], Accused No.8 [Hari SantoshHingankar], Accused No.9 [Pratima Gajanan Satbhai] and AccusedNo.10 [Jyoti Shivanand Satbhai] are concerned, they are entitled foracquittal.58.Resultantly, the Appeals fled by the Appellants / Convicts arepartly allowed. The Appeal fled by the Informant and Applicationfor leave to Appeal by State are liable to be dismissed. Resultantly,we proceed to pass the following order :-ORDER a] The Criminal Appeal Nos.565/2018, 563/2018, 540/2018 and76/2024 are partly allowed. b]The conviction and sentence recorded by the learned TrialCourt for the ofence punishable under Section 302 of IPC againstAccused No.1 [Subhash Shankerappa Satbhai], Accused No.2[Gajanan Shankerappa Satbhai], Accused No.3 [ShivanandShankerappa Satbhai] and Accused No.11 [Suresh NarayanSangekar] is quashed and set aside. They are acquitted of thesame. Instead, 39 Criappeal-871-2023.odt[b-i]Accused No.1 [Subhash Shankerappa Satbhai] isconvicted for the ofence punishable under Section 304 [Part-I] of IPC and is sentenced to sufer imprisonment for the period, which he has alreadyundergone i.e. nine [9] years, fve [5] months andeighteen [18] days, with fne of Rs.25000/- [Twenty FiveThousand Only], in default, to sufer imprisonment for one [1] year. The fne amount is paid. Thus, he be set atliberty forthwith, if not required inany other ofence. [b-ii]The Accused i.e. Accused No.2 [Gajanan Shankerappa Satbhai] and Accused No.11 [Suresh Narayan Sangekar] are convicted for the ofencepunishable under Section324 of IPC and sentenced to sufer Imprisonment for a period of one [1] year and to pay fne ofRs.5000/-[FiveThousand] each, in default, to sufer Imprisonment for three [3] months. As they have already undergone the said period of imprisonment and paid the fne, they be set at liberty forthwith, if not required in any other ofence. c]The conviction recorded by the learned Trial Court againstAccused No.1 [Subhash Shankerappa Satbhai], Accused No.2[Gajanan Shankerappa Satbhai], Accused No.3 [ShivanandShankerappa Satbhai], Accused No.4 [Ravi Subhash Satbhai]and Accused No. 11 [Suresh Narayan Sangekar] for the ofencepunishable under Section 324 of IPC is maintained. They aresentenced to sufer Imprisonment for a period of one [1] monthwith fne of Rs.5000/- [Five Thousand] each, in default, to suferImprisonment for three [3] months. As they have alreadyundergone the said period of imprisonment and the fne is paid, theAccused No.1 [Subhash Shankerappa Satbhai], Accused No.2 40 Criappeal-871-2023.odt[Gajanan Shankerappa Satbhai], Accused No.3 [ShivanandShankerappa Satbhai] and Accused No. 11 [Suresh NarayanSangekar] be set at liberty forthwith, if not required in any otherofence. The Accused No.4 [Ravi Subhash Satbhai] is on Bail. HisBail Bond stands cancelled. d]The Accused i.e. Accused No.6 [Shankerappa SubhanjiSatbhai] and Accused No.9 [Pratima Gajanan Satbhai] are acquittedfor the ofence punishable under Section 323 of IPC. The Bondexecuted by them for release on probation as per the order oflearned Trial Court stands cancelled. The amount of compensationpaid by them as per the order of learned Trial Court, be refunded.e]The fne amount imposed on the convicted Appellants beadjusted from the fne amount paid by them pursuant to the orderof learned Trial Court and remaining amount, if any, be refunded. f]The order of acquittal passed by the learned Trial Court ismaintained. g]The Muddemal be dealt with as directed by the learned TrialCourt. h]Criminal Appeal No.518/2020 and Application for leave to fleAppeal by State No.91/2020 are dismissed. [NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]Sameer