Criminal Appeal No. 598 of 2016 · Bombaybench High Court
Case Details
2024:BHC-AUG:8006-DB 1 Cr.Appeal 598.16IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD.CRIMINAL APPEAL NO.598 OF 2016Gajanan Damodhar BhaleraoAge : 25 years, Occu : Agriculture,R/o. Gunda, Tq. Basmath, Dist. Parbhani .. Appellant (Orig. Accused No.8)Versus1.The State of Maharashtra2.Vithalrao Kishanrao Jawale,Age : 61 years, Occu : Agriculture, R/o. Asola, Tq. & Dist. Parbhani .. Respondents (Respondent No.2 – Father of deceased)…WITHCRIMINAL APPLICATION NO.2702 OF 2022IN CRIMINAL APPEAL NO.598 OF 2016….ANDCRIMINAL APPEAL NO.682 OF 20161.Shivaji S/o. Ganeshrao Jawale Age : 32 years, Occu : Agri, R/o. Asola, Tq. & Dist. Parbhani 2.Navnath s/o. Uttamrao JawaleAge : 29 years, occu : Agri, R/o. Asola, Tq. & Dist. Parbhani 3.Dhananjay s/o. Uttamrao JawaleAge : 26 years, Occu : Agri, R/o. Asola, Tq. & Dist. Parbhani 4.Datta @ Anna s/o. Uttamrao JawaleAge : 35 years, Occu : Agri, R/o. Asola, Tq. & Dist. Parbhani 5.Prabhakar s/o. Ganeshrao JawaleAge : 33 years, Occu : Service, R/o. Asola, At Post. Shivaji Nagar, Parbhani … Appellants (Orig. Accused)
Legal Reasoning
2 Cr.Appeal 598.16Versus The State of Maharashtra .. Respondent ……WITHCRIMINAL APPLICATION NO.120 OF 2024IN CRIMINAL APPEAL NO.682 OF 2016….Shri. P. S. Paranjape, Advocate for Appellant in Criminal AppealNo.598 of 2016 Shri. Sudarshan J. Salunke, Advocate for Appellant in Criminal AppealNo.682 of 2016Smt. V. S. Chaudhari, APP for the Respondent / State in both thematters. Shri. S. S. Jadhavar, Advocate for Assist to P.P. in Criminal Appeal No.682of 2016 and for Respondent No.2 in Criminal Appeal No.598 of 2016…..CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 23.02.2024PRONOUNCED ON : 17.04.2024JUDGMENT [ PER NEERAJ P. DHOTE, J. ] :1.These two Appeals are filed under Section 374 (2) of theCode of Criminal Procedure, 1973 (hereinafter referred to as the‘Cr.P.C.’) against the Judgment and Order dated 20.09.2016 passed bythe learned Sessions Judge, Parbhani in Sessions Trial No.131 of 2013convicting the Appellants for the offence punishable under Sections 147,148, 324, 302 r/w. Section 149 of the Indian Penal Code, 1860 (forshort, ‘I.P.C.’) and sentencing them as detailed in the operative order ofthe said Judgment. 3 Cr.Appeal 598.162.The Prosecution’s case as revealed from the Police Report isas under:2.1.Latabai Vitthalrao Jawale, the resident of Agrith, Tal. Asola,Dist. Parbhani, who was the mother of Angad (deceased), was knockeddown by the motorcycle driven by the Accused / Appellant - ShivajiGanesh Jawale. She suffered fracture in her leg and was hospitalized.The Accused / Appellant – Shivaji, who was the resident of the samevillage and kin of the deceased, promised to bear the expenses relatingto her medical treatment, however, he avoided to keep his promise.Angad used to demand the medical expenditure, which were to theextent of Rs.1,00,000/- (Rs. One Lakh) from him. On the said issue ofmedical expenses, altercations used to take place between Angad andAccused / Appellant - Shivaji. Eventually, both the parties decided toconvene a meeting to resolve the issue. Accordingly, meeting was fixedon 07.06.2013, however it was postponed for the next day at theinstance of Accused / Appellant - Shivaji. In the afternoon, theAccused / Appellants went to Tadkalas Police Station and from there tothe Pingali police outpost. Angad was in his beer shop by name‘Chaitanya Beer Shop’. Around 08:00 p.m. of 07.06.2013 the Accused /Appellants reached the said beer shop with the weapons like Katti /Koyta, iron rod, fighter and assaulted deceased Angad. Due to voice /shouts of Angad, Madhukar Jawale (PW3), Kalyan Ganeshrao Jawale 4 Cr.Appeal 598.16(PW4) and Vitthalrao Krishnarao Jawale (PW5) who were present in thenearby Aakhada, reached at the beer shop. They saw that the accused /Appellants were assaulting Angad with the said weapons. MadhukarJawale (PW3) and Kalyan Ganeshrao Jawale (PW4) intervened to saveAngad. They both suffered injuries due to assault by Accused /Appellants - Shivaji and Navnath. After the assault, the Accused /Appellants fled.2.2.Angad was moved to Spandan Hospital, Parbhani. Angadsuccumbed to the injuries. The injured eye witnesses were provided withthe necessary medical treatment. As the police were informed about theincident, the police reached Spandan Hospital. The statement / Report(Exh.86) of Madhukar (PW3) was recorded by the police as the FirstInformation Report (FIR) and Crime No.68/2013 came to be registeredfor the offence punishable under Sections 147, 148, 149, 307, 323, 324,302, 504 and 506 of the I.P.C. and for the offence punishable underSection 4 r/w. Section 25 of the Arms Act. During the course ofinvestigation, Inquest was done, Spot Panchanama was prepared fromwhere blood stained mud, simple mud, Chappals, blood stainedweapons such as Katti and metallic fighter were seized and sealed, andthe body was referred for Post-mortem. The statement of witnesses wererecorded, the Accused / Appellants No.1 to 5 came to be arrested, theAccused / Appellant No.8 surrendered on the sixth (06th) day from the 5 Cr.Appeal 598.16incident, the clothes of the Accused / Appellants were seized, the Katti /Koyta one each, came to be seized at the instance of Accused /Appellants - Shivaji and Dhananjay and one rod came to be seized at theinstance of the Accused / Appellant – Navnath, the clothes of Accused /Appellants came to be seized, one rod came to be seized from Accused /Appellant - Gajanan (Accused No.8), the Investigating Officer collectedthe medical papers and Post-mortem report, the seized muddemalarticles were sent for chemical examination and on completion ofinvestigation, Charge-sheet came to be filed against eight (8) accusedpersons including the Appellants. 2.3.On committal by the learned Magistrate, the case came tobe registered as Sessions Trial No.131/2013 in the Sessions Court.Charge came to be framed against Charge-sheeted accused for theoffence punishable under Sections 147, 148, 324, 302 r/w. Section 149of the I.P.C. at Exh.28, to which the accused - Appellants pleaded notguilty and claimed to be tried. To prove the Charge, Prosecutionexamined in all twenty three (23) witnesses and brought on recordcertain documents. After the Prosecution closed their evidence, thestatement of the Accused / Appellants came to be recorded underSection 313 (1)(b) of the Cr.P.C. The accused / Appellants denied thecase and evidence of the Prosecution. On appreciation of the evidenceon record, the learned Trial Court passed the impugned Judgment and 6 Cr.Appeal 598.16order acquitting Accused Nos.6 and 7 and convicted the Appellants, whowere the Accused Nos.1 to 5 and 8.3.Heard the learned Advocates for the Appellants and learnedAPP for the Prosecution assisted by the learned Advocate for theInformant.4.It is submitted by the learned Advocate for the AppellantNos.1 to 5 that there is delay in lodging the FIR. The eye witnessesevidence cannot be believed as the spot of incident was dark being NoMoon Night and there was no electricity in the village. The recovery ofthe weapons at the instance of the accused cannot be relied, as the timeshown in the memorandum and seizure panchanamas do not match thedistance from where the recovery is shown. The seizure of blood stainedclothes from the person of the Appellants cannot be believed as no onewill keep the clothes stained with blood on their person. There is noevidence that there was an unlawful assembly with common object tocommit the crime. It is submitted that the evidence available on recorddo not establish the Charge and the impugned Judgment and order bequashed and set aside and the Appeal be allowed. Reliance is placed onsome Judgments in support of the arguments, which would beconsidered in later part of this Judgment. 7 Cr.Appeal 598.165.It is submitted by the learned Advocate for Accused No.8that the Accused No.8 - Gajanan was just a mediator between two sidesto resolve the issue of compensation to the mother of deceased and hadnothing to do with the incident. It is submitted that he was the impartialperson and as the meeting was cancelled, he left for his native place. Itis further submitted that the evidence of seizure of rod at the instance ofAccused No.8 cannot be termed as the discovery under Section 27 of theIndian Evidence Act. It is submitted that the Accused No.8 has beenfalsely implicated and there is no evidence that he was the part of theunlawful assembly and therefore, his conviction and sentence be setaside. 6.It is submitted by the learned APP that there is evidence ofinjured eye witnesses, which nails the Appellants and though they areexamined, their evidence remained unshaken. The Appellants wereknown to the witnesses and therefore, there is no question ofestablishing the identity. There is immediate lodging of report by one ofthe injured eye witness. The injuries on the deceased and the evidenceof the eye witnesses established unlawful assembly and Murder and theAppeals be dismissed by maintaining the conviction and sentence.7.The learned Advocate assisting the Prosecution madesubmissions on the line of submissions made by the learned APP. 8 Cr.Appeal 598.16-: Homicidal Death :- 8.As one of the Charge is for the offence of Murderpunishable under Section 302 of the IPC, the Prosecution is required toprove that the death was Homicidal. It is the Prosecution’s case thatAngad, who was the son of PW5 - Vithalrao Kishanrao Jawale, metHomicidal Death. 9.The evidence of PW1 - Dr. Sudhir Marotirao Kakde showthat he was attached to Spandan Hospital, Parbhani on 07.06.2013. Atabout 08:50 p.m. Angad Jawale (deceased), Madhukar (PW3) andKalyan Jawale (PW4) had come to the hospital. Angad Jawale was in aserious condition, his blood pressure was not recordable, he was in semi-conscious condition and not responding to the verbal commands. Hewas having stab injury over abdominal region. There was a big stabinjury over left hypo contrail region of size 8 cms x 3 cms x 10 cms withevidence of omentum coming out of wound. There were other injurieson his person which were within one hour before examination. TheMedico Legal Certificate at Exh.44 is brought on record whichcorroborate his evidence.10.Cross-examination of this witness show that Angad died inthe hospital at 09:15 p.m. Not giving history and name of assailants bythe injured will not be sufficient to discard his testimony. His 9 Cr.Appeal 598.16cross-examination show that after issuance of letter the police fromTadkalas Police Station had come to the hospital. The cross-examinationshow that his evidence in respect of bringing the injured to the hospitaland he examining them is not seriously disputed. His evidence showthat the injuries suffered by Angad were sufficient in ordinary course tocause death. His cross-examination show that letter was issued to theconcerned police station for conducting Post-mortem on the dead bodyof Angad which was removed from their hospital around 10:30 p.m.Though there is substantial cross-examination in respect of injuries,there is nothing to discard the testimony in respect of examination ofAngad and noticing the injuries on his body in the evening of07.06.2013. Not coming of the Police Officer to him with the weaponsto seek his opinion whether the injuries were possible due to saidweapon is inconsequential. The evidence of this witness regardinginjuries on Angad remained unshaken and well corroborated by theMedico Legal Certificate. 11.The evidence of PW2 - Dr. Pandurang Vishnupant Chevleshow that he was attached to the Civil Hospital, Parbhani as MedicalOfficer at the relevant time. On 08.06.2013 the dead body of Angadwas brought to him by the police for Post-mortem at 01:15 a.m. Heperformed the Post-mortem. He noticed number of injuries on the deadbody which are as follows :- 10 Cr.Appeal 598.16“1. An incised stab wound over back just below the neckmeasuring 3 Cms. X 2 Cms X 5 Cms. It was horizontally placed,margins were clear, cutting skin, sub cutaneous tissues, musclesand minute capillaries. The injury was red coloured. Vitalreactions present. 2.Incised injury measuring 3 Cms. X 2 Cms X 3 Cms. Overback, below neck, just lateral to mid line on left side, cuttingskin, sub cutaneous tissues, muscles and capillaries. The colourwas red and margins were clear. 3.Incised wound (stab) measuring 3 Cms. X 2 Cms X 4Cms., over back on left below scapula, margins were clear,colour was redm cutting skin, sub cutaneous tissues, musclesand capillaries. 4.Incised wound (stab) on back on left side, just above lefthip, measuring 3 Cm. X 2 Cm X 4 Cm., cutting skin, subcutaneous tissues and muscles as well as minute vessels, marginswere clear and colour was red. There were some injuries on central side.5.An incised stab wound in the left hypocondriac regionmeasuring 8 Cms. 3 Cms. X 3 Cms., obliquely placed, marginswere clear, a part of omentum was protruding out of the injury.The injury had penetrating into peritoneal cavity causingperforating injury to lower part of stomach. Stomach was filledwith full of blood clotted haematoma, due to injury to vessels ofstomach, the injury to spleen was found caused profussedbleeding peritoneum was filed with blood clotted haematomadue rupture of and stomach. It was red coloured and vitalreaction was present. 6.Contused lacerated wound on lateral aspect of scrotalregion measuring 2 Cms. X 1 Cm.7.A contused lacerated wound on left upper thigh onmedial side measuring 1 Cm. X 1 Cm X 2 Cms. 8.A contused lacerated wound on left leg below kneemeasuring 5 Cms. X 3 Cms. X 2 Cms. It was red coloured,cutting skin and muscles.” 12.His further evidence show that all the above referredinjuries were ante mortem and sufficient to cause death. The cause ofdeath was ‘Cardiorespiratory failure due to Haemorrhagic shock due to 11 Cr.Appeal 598.16injuries to stomach and spleen’. The tenor of the cross-examinationshow that his evidence in respect of the injuries, performing ofPost-mortem and cause of death is not seriously disputed. Expressingthe possibility that injury nos.6 to 8 were possible due to fall on hardand rough surface during scuffle or otherwise is inconsequential. It hascome in the cross-examination that cumulative effect of all those injuriesexasperated haemorrhagic shock associated with injuries to stomach andspleen. Post-mortem Report at Exh.65 is brought on record whichcorroborate his testimony. 13.The evidence of PW8 - Balasaheb Achyutrao Jawale showthat on learning that the incident had taken place and injured Angadwas taken to Spandan Hospital, he visited the said hospital, where hesaw the dead body of Angad and as the police asked him, he agreed toact as the Panch for inquest. He noticed injuries on the body of Angad.The inquest was prepared which was read over to him, he found it to becorrect and signed the same. He identified the inquest at Exh.148 as thesame. In cross-examination attempt is made to show that he was notpresent at the time of inquest, however his testimony remainedunshaken. Not making enquiry to the police by him as to whether anycrime was registered is inconsequential. 14.The evidence of PW21 - Kishor Kishanrao Borde show thathe was the Police Officer attached to the Tadkalas Police Station at the 12 Cr.Appeal 598.16relevant time. On 07.06.2013 around 10:00 p.m. while he was onpatrolling duty, he received the information in respect of murder onAsola road. He went to the spot of incident and from there he went tothe Spandan Hospital, Parbhani where the injured were admitted. Hetook the steps for Post-mortem and other formalities. This evidence ofPW21 - Kishor as seen from the cross-examination show that it was notseriously disputed. 15.The above discussed evidence proved that in the evening of07.06.2013 Angad was brought to the Spandan Hospital with severalinjuries on his body and he died. Through the above discussed medicalevidence, it is proved by the Prosecution that the death of Angad wasdue to the injuries suffered by him. In short, the Prosecution hassuccessfully proved that Angad died Homicidal Death. Even there is noserious challenge to the death of Angad as Homicidal. -: Spot of Incident :-16. The evidence of PW20 - Balu Devidas Bharose show that hewas the resident of village Asola. On 07.06.2013 while he wasproceeding towards his field at around 08:00 p.m., he saw Angad lyingon the road near beer shop in an injured condition. He, PW3 –Madhukar and PW4 – Kalyan shifted Angad to the Spandan Hospital inbolero jeep of Angad. Angad died in the hospital. The omissions as 13 Cr.Appeal 598.16shown in his cross-examination in respect of the names of PW3 –Madhukar and PW4 – Kalyan and ownership of jeep do not affect histestimony that while travelling towards his field he saw Angad onthe road near the beer shop in injured condition. The rest of thecross-examination do not affect the core of his testimony. 17.The evidence of PW9 Ananta Rangnathrao Jawale showthat at 06:00 a.m. of 08.06.2013 while he was coming to village Asolafrom Basmat road, Madhukar Jawale (PW3) and Police were present atthe Chaitanya Beer Shoppy. The place of incident was shown byMadhukar Jawale (PW3), which was showing the signs of scuffle. Bloodwas seen on the road in front of beer shoppy. Chappals were foundlying. One metallic yellow colour fighter (Article-1) having four holesand two pointed projectors, katti (Article-31) having wooden handle of5 inches and curve blade of 19 inches were found on the spot. The saidArticles were having blood stains. All the Articles were collected andsealed under the panchanma. He identified Exh.150 as the said SpotPanchanama. His evidence show that the said Articles were shown tohim and he identified the same which were seized from the spot. Hisfurther evidence show that soil was collected from the spot. The cross-examination could not create any dent in the testimony of this witness inrespect of his acting as the Panch and preparing Spot Panchanama in hispresence. 14 Cr.Appeal 598.1618.The evidence of PW11 – Nagnath Manikrao Shendge, theInvestigating Officer corroborate the testimony of PW9 - Ananta inrespect of preparing the Spot Panchnama. His evidence show that thespot of incident was in front of Chaitanya Beer Shop on Asola road.There was blood and weapons lying on the spot. He deposed ofpreparing the Spot Panchanama of that place in presence of two panchasand seizure of the Articles and mud from that spot. He identifiedExh.150 as the same Spot Panchanama. His evidence show that he sentthe letter at Exh.205 to the Tahsildar to draw the map of the said spot ofincident. 19.The evidence of PW23 - Prabhu Sambhaji Katkade showthat on 08.06.2013 he was the Circle Officer and as per the order of theTahsildar he prepared the sketch map of the spot of incident which wasat Asola village near the beer shoppy. He identified Exh.227 as the samemap of spot of incident. Not knowing the gut number of the spot ofincident by this witness is inconsequential. The cross-examinationfortifies the evidence of this witness regarding preparation of map of thespot of incident.20.The above discussed evidence established that the spot ofincident was on the Asola Pati to Asola road in front of Chaitanya Beer 15 Cr.Appeal 598.16Shoppy and weapons at Article-1 and 31 were seized from the said spot.-: Eye Witnesses to the Incident :- 21.The Prosecution examined three witnesses i.e. PW3 -Madhukar, PW4 - Kalyan and PW5 - Vithalrao as the eye witnesses to theincident. They are relatives of each other. They all are resident ofvillage Agrit in Asola Taluka, Dist. Parbhani. The Prosecution’s casemainly rests on the evidence of these witnesses being the eye witnessesto the incident. The evidence of the said three eye witnesses show thatthree months prior to the murder of Angad, the wife of PW5 - Vithalraoand mother of deceased Angad – Latabai was dashed by motorcycledriven by the Appellant - Shivaji Jawale, who was amongst their kin.Due to the said dash, Latabai suffered fracture in her leg for which shehad to take medical treatment and incur certain expenditure. TheAppellant - Shivaji Jawale committed to compensate the said medicalexpenditure, however he was avoiding to obey the commitment. Onthat count altercations took place between deceased Angad and theAppellant - Shivaji Jawale. The cross-examination of these threewitnesses on this aspect show that the said incident of dash to wife ofPW5 Vithalrao and mother of deceased Angad by motorcycle driven bythe Appellant - Shivaji Jawale was not in dispute. 22.The evidence of PW3 - Madhukar show that his Aakhada 16 Cr.Appeal 598.16was barely 200 feet away from the beer shoppy i.e. spot of incident,which was being run by deceased Angad. This aspect that deceasedAngad was running the beer shoppy is not disputed as can be seen fromthe tenor of cross-examination of the eye witnesses. His evidence showthat two minutes are required by walk to cover the distance between hisAakhada and the spot of incident. On 07.06.2013 at about 08:00 p.m.when he, PW4 - Kalyan and PW5 - Vithalrao were present at hisAakhada, they heard the shouts of Angad from the side of beer shoppy,therefore, they all three i.e. he, PW4 – Kalyan and PW5 - Vithalrao rantowards the beer shoppy where the light of petromax and bulb attachedto inverter were glowing. He saw all the Appellants assaulting Angadwith the weapons like Koyta, Pipe, Fighter. Due to assault, Angadsuffered bleeding injuries. When he and PW4 - Kalyan intervened, theyboth were assaulted by Appellant – Shivaji and he was also assaulted byAppellant - Navnath. Due to the shouts at the place of incident, thepersons by name Gopal, Keshav and Balu reached the spot of incident.Due to their arrival, the Appellants fled. Injured Angad was shifted toHospital in the jeep by himself, PW4 - Kalyan and others. During thetreatment, Angad died in the Spandan Hospital. He and PW4 - Kalyanwere provided medical treatment for the injuries suffered by them. Inthe hospital, the police recorded his statement which was treated as theFIR at Exh.86. He deposed of recording his supplementary statement bythe police on 09.06.2013 and seizure of his clothes. During his 17 Cr.Appeal 598.16evidence, he identified the Appellants as the assailants. 23.In the cross-examination his evidence that he possessed theAakhada and some of his family members were residing there has beenfortified. The said Aakhada being his own place, his presence at therelevant time at Aakhada is natural. The cross-examination fortifies thatthe distance between Aakhada and beer shoppy was very near i.e. 200feet. The distance between his Aakhada and place of incident is suchthat his evidence that he heard the shouts of Angad is believable. Fromthe cross-examination, it is seen that his evidence to the extent ofspecific / particular weapons in the hands of the Appellants for assaultwas an omission in his report. It is needless to state that the report / FIRis not an encyclopedia. What is clear from his testimony is that hisevidence is corroborated by his previous statement given to the police inthe nature of report and supplementary statement. It is true that it hascome in his evidence that there was no electricity and load shedding wasin operation at the time of the incident, his evidence that there was lightof petromax and inverter at beer shoppy remained unaffected.Undisputedly, all the Appellants are named in the FIR as the assailants. 24.His reaching the spot of incident and witnessing theincident further gets fortified as he suffered injuries on his person in theassault due to intervention. The evidence of PW1 - Dr. Sudhircorroborate his testimony that he was examined in Spandan Hospital. 18 Cr.Appeal 598.16The evidence of said doctor show that PW3 - Madhukar sufferedfollowing injuries:“(1) Contusion on right shoulder region, measuring 6 cmsC 2 cms caused by hard and blunt object. Its age was onehour and nature of the same was simple.(2)A Contusion on back, on right side measuring 2 cms X1 cms. It was caused by hard and blunt object. The age wasone hour and it was simple in nature.(3)A contusion over left back region measuring 2 cms X 1cms. It was caused by hard and blunt object. Age was onehour and it was simple in nature.(4)An abrasion on right neck region of size. It wasmeasuring 1 cm X 2 cms. It was caused by hard and bluntobject. Age was one hour and nature was simple.(5)A contusion on left side of back region, measuring 2cms X 1 cms, caused by hard and blunt object within onehour. Nature it was simple.”25. The Certificate at Exh.46 corroborate the testimony of thedoctor and PW3 – Madhukar for the injuries. The evidence of PW1 - Dr.Sudhir show that the said injuries were possible by blow of pipe (Article-32). His evidence that his blood stained clothes were seized in thehospital is corroborated by the evidence of PW10 - Rama ManikraoJawale wherein he deposed of seizure of blood stained clothes of PW3 -Madhukar which were Articles-34, 35 and 36 under the panchanama atExh.153 in the Spandan Hospital. The evidence of said panch witnessremained unchallenged. PW3 - Madhukar also identified his clothes atthe time of his evidence. Nothing has come in the cross-examination ofPW3 – Madhukar to discard his testimony that he witnessed the 19 Cr.Appeal 598.16incident. Though it was night time, his evidence show that there waslight of petromax and bulb of inverter near the place of incident. TheAppellants were known persons to him and therefore, there was nodifficulty for him to identify them. The omission as referred above is notof that nature which would affect his evidence. Though in hiscross-examination it is brought that within one minute one can reachpolice outpost from the place of incident, not going to the police outpostinstead of hospital is a natural conduct because one will seek themedical help first in point of time in such a situation. The evidence ofthis witness which is corroborated by his prompt report to the police andinjuries on his person gives the required assurance that he was the eyewitness to the incident. The contention of the learned Advocate for theAppellants that there was delay in reporting the matter to the police hasno merits. Resultantly, the testimony of PW3- Madhukar is accepted. 26.The evidence of PW4 - Kalyan Ganeshrao Jawale show thathe was the brother of PW3 - Madhukar. His evidence show that they allreside jointly. Deceased Angad was his paternal cousin and was runningthe beer shoppy on Asola road by name ‘Chaitanya Beer Shoppy’.On 07.06.2013 at about 08:00 p.m. he himself, PW3 - Madhukar andPW5 – Vithalrao were present at Aakhada. There was no electricity atthat point of time. They heard noise of quarreling from the side of beershoppy of Angad which was situated near the Aakhada. He noticed 20 Cr.Appeal 598.16stopping of motorcycle at the beer shoppy. He, PW3 - Madhukar andPW5 - Vithalrao ran towards said beer shoppy, wherein petromax wasburning and there was bulb connected to the inverter. He deposed thatAngad was being assaulted by the Appellants with weapons like Katti,pipe and fighter. His evidence show that he and PW3 - Madhukarintervened and they were also assaulted by the Appellant Shivaji withKoyta and PW3 – Madhukar was also assaulted by Appellant – Navnathby Rod. His evidence show that due to noise of quarrel, Keshav Jawale,Balu Bharose and Gopal reached the spot of incident due to which theassailants ran away. Katti and fighter which were with the AppellantsPrabhakar and Datta had fallen down on the spot of incident. Hedeposed of shifting Angad to Spandan Hospital. As he suffered theinjuries, he was given the treatment for two days in the hospital anddischarged after two days. He identified the Appellants as theassailants. 27.The cross-examination of PW4 - Kalyan show that therewere material omissions in his previous statement recorded by the policein respect of the assault on Angad and the availability of light at the beershoppy. One can see that the omissions surfaced due to the manner inwhich the examination-in-chief was recorded. Had there been no otherevidence, the omissions would have been fatal. However, his evidencethat he reached the spot of incident and witnessed the incident cannot 21 Cr.Appeal 598.16be discarded for more than one reason. His presence at the Aakhadaand reaching the spot after hearing the shouts of Angad has beendeposed by PW3 - Madhukar. The report / statement of PW3 - Madhuakrshow the name of PW4 - Kalyan as the witness to the incident. Thereport lodged by PW3 - Madhukar and the evidence of PW3 - Madhukarshow that they were assaulted when they intervened. The evidence ofPW1 - Dr. Sudhir show that in the night of 07.06.2013 he examinedKalyan Jawale (PW4) who was having injury which was the contusionon left upper arm measuring 3 cms x 2 cms and age of injury was onehour and it was caused by hard and blunt object and he took out the x-ray. The Medico Legal Certificate at Exh.45 is brought in the evidence ofthis doctor which corroborate the evidence that PW4 - Kalyan sufferedsimple injury which was treated. It is true that there is no evidence thathis clothes were seized. However, due to the above referred evidence ofPW3 – Madhukar and PW1 – Dr. Sudhir corroborated by the reportlodged by PW3 – Madhukar, the evidence of PW4 - Kalyan that hewitnessed the incident is accepted. 28.Though PW5 - Vithalrao deposed that he witnessed theincident, his testimony about witnessing the actual incident is kept outof consideration for the reason that his evidence show that in the year2004 he suffered paralysis attack and till the date of his evidence he wastaking the treatment for the said ailment. His evidence show that he 22 Cr.Appeal 598.16took five (5) to seven (7) minutes to reach the spot of incident from theAakhada. He gave contrary evidence about reaching the spot of incident,as at one point he deposed that he reached by walk and at another pointhe deposed that he reached by running. His evidence show materialomissions in respect of the incident. His name does not find place in thereport lodged by PW3 - Madhukar as the one who accompanied them atthe spot of incident. In the light of these aspects, his testimony that hewitnessed the actual incident is required to be seen with doubt. Further,though he deposed of hatching conspiracy by the Appellants, headmitted that he was not present when the conspiracy was hatched.Thus, the testimony of this witness to the extent that he witnessed theincident is kept out of consideration. 29.The learned Advocate for the Appellants cited theJudgments in the case of Thulia Kali vs. State of T. N., 1972 CRI.L.J.1296 and in the case of Shivlal and Anr vs. State of Chhatisgarh, 2011AIR (SCW) 6480 wherein the importance of prompt lodging of FIR isemphasized and it is observed that unexplained inordinate delay insending copy of the FIR to the Magistrate may affect the Prosecutioncase adversely. In the case in hand as seen from the above evidence,there is recording of statement of PW3 - Madhukar in the hospitalimmediately after the incident and registration of crime by PW21 –Kishor, Investigating Officer. There is no cross-examination in respect of 23 Cr.Appeal 598.16sending the copy of FIR to the Magistrate. Thus, the said rulings are ofno assistance to the Appellants.-: Arrest of Appellants :-30.The evidence of PW21 - Kishor, the Investigating Officershow that during the investigation Appellants were arrested. The arrestmemorandums / forms are at Exhs.211, 212, 213, 214, 215 and 225.His evidence show that the Accused No.8 - Appellant Gajanansurrendered on 13.06.2013. The arrest of the Appellant in the crime isnot in dispute. -: Discovery :-31.It is the case of Prosecution that Katti / Koyta - Article-31,Rod (Article-32) and Katti / Koyata (Article-33) were discovered andseized at the instance of Accused / Appellants - Shivaji, Navnath andDhanraj, respectively pursuant to the provisions of Section 27 of theIndian Evidence Act. For that the Prosecution examined PW6 – PurbhajiPralhadrao Jawale. His evidence show that on 12.06.2013 he was calledby the police in the Tadkalas Police Station where the said threeAppellants were in the police custody / lock up and they voluntarilystated to show the place where the weapons / Articles were concealedand memorandums to that effect were prepared which were atExhs.142, 143 and 144. He deposed that the said three accused /Appellants led them to the land of Appellant Shivaji from where theyremoved the aforesaid Articles / weapons which were seized and sealed 24 Cr.Appeal 598.16under the panchanamas. 32.From the cross-examination of this panch witness, it is seenthat the distance between Tadkalas and Asola via Khanapur is 30 kmsand in those days one hour time was required to travel that distance.The time on three (3) memorandums is mentioned as 08:15 to 08:30hours, 08:35 to 08:50 hours and 08:55 to 09:10 hours and the timementioned in the second part of the said memorandums is shown as09:15 to 10:30 hours, 09:15 to 11:00 hours and 09:15 to 11:30 hours.Considering the evidence in respect of the distance and time required toarrive the said place as deposed by this witness, we find merit in thesubmission of the learned Advocate for the Appellants that the firstseizure panchanama should have started at 10:20 hours. Thus, weaccept the contention of learned Advocate for the Appellants that thetime appearing in the said memorandums and seizure panchanamas ifcompared with the distance required to reach the said spot from thePolice Station Tadkalas, do not reflect the true picture. Thus, we are notimpressed with the Prosecution’s evidence in respect of the discovery /recovery and seizure of the Articles-31, 32 and 33 at the instance of thesaid Appellants namely Shivaji, Navnath and Dhanraj, respectively andthe said evidence is discarded. 33.The evidence of PW15 - Ganesh Bhaurao Gadhwe show that 25 Cr.Appeal 598.16on 13.06.2013 he was called at Tadkalas Police Station wherein theAppellant - Gajanan was present with one pipe which was seized by thepolice under the panchanama at Exh.189. However, his evidence showthat he could not identify the Appellant - Gajanan as the same person.He deposed that he did not recollect the face of accused Gajanan and hecould not see whether he was present in the Court or not. In his cross-examination it has come that the clothes and pipe were shown by thepolice. In view of this evidence, the Prosecution’s case that the rod wasseized from the Appellant - Gajanan is discarded.34.The other evidence on record is in respect of the seizure ofthe clothes of the accused and Articles and reports of Chemical Analysis.Though the evidence on record show that the Articles were seized andsent for Chemical Analysis, the C.A. Reports (Exh.228) show that theblood group of deceased Angad could not be determined as the resultswere ‘inconclusive’. The result of Chemical Analysis of the Articles sentfor examination show the human blood and blood group was‘inconclusive’. Thus, the evidence in the nature of seizure of the Articlesfor the purpose of corroboration is of no assistance for the Prosecutionto prove the Charge.-: Motive and Unlawful Assembly :-35.As discussed earlier while considering the evidence of eyewitnesses, mother of deceased Angad suffered fracture in her leg due to 26 Cr.Appeal 598.16the dash of motorcycle driven by the Appellant – Shivaji and there werealtercations between the Appellant - Shivaji and deceased Angad on thepoint of non payment of medical expenditure. At the cost of repeatation,the said evidence is not in dispute. The evidence therefore show thatthe terms between the Appellant - Shivaji and deceased Angad were notcordial and they were on inimical terms.36.The evidence of PW5 - Vithalrao show that he and deceasedAngad were demanding money towards hospital expenditure from theAppellant - Shivaji and his father and since they started threateningthem, they disclosed about the same to PW17 - Anand Bharose. Themeeting was arranged in the village on 07.06.2013 when AppellantGajanan Bhalerao who was relative of Appellant Shivaji had come totheir village. However, Appellant – Shivaji, his father and his relativesdeclared that the meeting would be held on the next day. 37.The evidence of PW17 - Anand Sheshrao Bharose show thathe was knowing both the sides / parties. On 07.06.2013 the Appellant -Shivaji and his father Ganesh had come to him for discussion thatmeeting was to be convened to finalize the issue of payment of medicalexpenditure on that day or next day. They had come to his house inbetween 05:30 and 06:00 p.m. and it was decided to hold the meetingon the next day and thereafter they left. 27 Cr.Appeal 598.1638.The evidence of PW18 - Onkar Vishwanath Giri show thaton 07.06.2013 he was at the Pingali outpost of Tadkalas Police Stationand the Appellants had come to the outpost on three (3) motorcyclesand stopped in front of the outpost where they were present for half anhour and reasons given by them was to drink the water. He identifiedthe Appellants as the same persons who had come together on the dayof incident. 39.The above evidence show that though the meeting wasarranged to resolve the dispute, it was postponed / cancelled from theAppellants side. Though it is the contention of the learned Advocateappearing for the Appellant - Gajanan that after the meeting they left totheir respective houses, there is nothing to show that the Appellantswent to their respective houses or villages after the meeting wascancelled. The above evidence show that all the Appellants weretogether and had been to the police outpost and stopped half an hour atthe outpost. In the evening the Appellants assaulted Angad. This showthat they shared the common object of assaulting Angad and they weresuccessful in executing their common object as is proved by theProsecution from the evidence of PW3 - Madhukar and PW4 - Kalyan. 40.Learned Advocate for the Appellants relied on theJudgments in the case of Kuldip Yadav and Ors. Vs. State of Bihar, 2011 28 Cr.Appeal 598.16Cri. L .J. 2640 and in the case of Kamaksha Rai and others vs. State ofU.P., AIR 2000 SC 53 on the point that for conviction with the aid ofSection 149 of the I.P.C. the evidence must show that not only the natureof common object, but also that the object was unlawful and largenumber of persons are accused of committing a crime and the Courtshould be extremely careful in scrutinizing the evidence. Legal positionset out in the aforesaid Judgments is well settled. In the case in hand,as discussed above, the assembly of the Appellants was an unlawfulassembly with the object of assaulting Angad and they had executed thesame.41.The other Judgments relied upon by the Advocate for theAppellants is in the case of Narsinbhai Haribhai Prajapati Etc. Vs.Chhatarsinh and Others, AIR 1977 SC 1753 wherein it is observed that,‘the blood stained clothes and Dhariyas with the Accused were whollyinsufficient for sustaining the Charge of murder’ and in the case ofNajabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh and Others,AIR 2018 SC (Criminal) 1026 wherein there was nothing on record tosuggest any previous enmity between the parties and common object tocommit the murder could not infer only on the basis that the weaponscarried by the accused were dangerous. As discussed above, theevidence in the nature of seizure of clothes by the Investigating Officer iskept out of consideration as the C.A. reports fall short of showing the 29 Cr.Appeal 598.16blood of deceased on the Articles. Further, the discovery of weapons atthe instance of Appellants is discarded. -: Conclusion :- 42.The above discussion and the evaluation of the evidenceavailable on record show that through the evidence of PW3 - Madhukarand PW4 - Kalyan the Prosecution has established that the Appellantsassaulted deceased Angad with deadly weapons i.e. Katti / Koyta etc.From the evidence of said two eye witnesses, the Prosecution hasestablished that the Appellants were the authors of the crime and theycaused the injuries to Angad. The use of the aforesaid deadly weaponsin the assault and the nature of injuries on dead body of Angad, provedthrough the medical evidence, clearly establishes the intention on thepart of the Appellants to commit the Homicidal Death. The evidence ofPW3 - Madhukar and PW4 - Kalyan is trustworthy. PW3 - Madhukar andPW4 - Kalyan identified the Appellants as the assailants. Though it hascome in the evidence of eye witnesses that at the time of incident therewas no electricity due to the load shedding, the evidence of both the eyewitnesses show that there was petromax and inverter light at the Beershoppy where the incident had taken place. The Appellants were knownto the eye witnesses. PW3 - Madhukar and PW4 - Kalyan are the injuredeye witnesses as they suffered the injuries due to intervention in theincident of assault. It is settled position in law that the evidence ofinjured eye witness stands on higher pedestal. They both with the help 30 Cr.Appeal 598.16of others had shifted Angad to the hospital. They were also treated fortheir injuries. There is immediate disclosure of the incident to thepolice by PW3 - Madhukar which culminated in recording his statementand registration of crime. All the Appellants are named in the Report /statement given by PW3 - Madhukar to the police. This lendscorroboration from the testimony of PW3 - Madhukar and PW4 - Kalyan.The Prosecution has proved the spot of incident. The weapons, Katti(Article-31) and Fighter (Article-1), were seized from the spot ofincident.43.True it is that the evidence in respect of the discovery /recovery / seizure brought on record by the Prosecution is discarded.However, that will not result in discarding the entire Prosecution’s case.It is needless to state that the recovery / discovery / seizure is acorroborative piece of evidence. It is also settled position in law thatcorroboration is only a rule of prudence. When the testimony of theinjured eye witnesses inspire confidence and remains unshaken in thecross-examination, it can certainly form the basis to prove the Charge.The evidence on record show that even after the cancellation of themeeting, the Appellants did not disperse and they remained together tillAngad was done to death. The evidence on record established theunlawful assembly by the Appellants with the object of assaultingAngad. Merely because the eye witnesses were related to the deceased 31 Cr.Appeal 598.16cannot be the ground to discard their testimony. As seen from thestatement of the Appellants recorded under Section 313 (1)(b) of theCr.P.C. their case is that of total denial and false implication. Theevidence on record as discussed above proved the essential ingredientsfor the offences punishable under Sections 147, 148, 324, 302 r/w.Section 149 of the I.P.C.44.On re-appreciation of the evidence available on record, asdiscussed above, the conviction and sentence recorded by the learnedTrial Court do not call for interference. The Appeals, therefore, fail andthus, the following order:ORDER(i)The Appeals are dismissed.(ii)Record and Proceedings be sent back to the Trial Court.(iii)Pending Criminal Application Nos.2702 of 2022 and 120 of 2024stand disposed of. ( NEERAJ P. DHOTE, J. )( R. G. AVACHAT, J. )GGP