Judgment:
1. Heard the learned counsel for the appellants Jayawant Kapre, Balu alias Sudam Kapre and Trimbak Rambhau Kapre and the learned Additional Public Prosecutor for the respondents State.
2. The Criminal Appeal is directed against the Judgment and Order dated 12th January 1989 passed by the Additional Sessions Judge, Pune, whereby the appellant Jayawant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I. for life. Accused Jayawant, Balu and Trimbak were convicted under Section 147, 148, 149, 247 and 325 and sentenced to suffer R.I. for five years and were also directed to pay a fine of Rs.1,000/- each, in default to suffer R.I. for six months. Accused Jayawant and Balu were also convicted along with other co-accused for the offence punishable under Section 147, 148, 149, 447 and 323 of the Indian Penal Code and were sentenced to suffer R.I. for six months and to pay a fine of Rs.1,000/- each, in default to suffer R.I. for three months.
3. In the instant case many accused were prosecuted, out of which accused No.1 Jayawant was convicted for the offence of murder and other 9 accused were convicted for different offences. All the 10 accused preferred the present appeal against the judgment and order passed by the trial court dated 12th January 1989. During the pendency of the appeal, this Court allowed criminal application No. 1364 of 2005 and permitted compounding of offence in so far appellant nos. 2, 3, 4, 6, 7, 8 and 9 are concerned and therefore criminal appeal to that extent stands disposed of. The present appeal now is only by the appellant no. 1 Jayawant, appellant no. 5 Balu and appellant no. 10 Trimbak.
4. The prosecution case in nutshell is as follows:-
The incident took place on 18th December 1986 at 2.30 p.m. in the field known as "Shericha Mala" situate at Village Nazare Supe. The said field was owned by deceased Bajirao Yeshwant Kapre. On the date of the incident the election of Upsarpanch of Grampanchayat was scheduled. The election ended smoothly. Subhash Shivram Kapre was elected as Upsarpanch of Grampanchayat Nazare Supe. The entire village was divided in two rival factions, one group was led by Congress-I and the another was led by Janata Party. Deceased Bajirao Kapre, Upsarpanch Subhash Kapre were strong supporters of Janata party. The motion of vote of no confidence was brought against Upsarpanch by the Members of Congress-I group but it did not succeed. Their efforts to remove Upsarpanch were not successful and therefore they had an axe to grind against the Members of Janata Party. Sarpanch deceased Bajirao Kapre, UPsarpanch Subhash Kapre and Jaising Kapre were in the field known as "Shericha Mala". It is the prosecution case that at that time accused Jayawant Kapre gave a blow with the iron bar on the head of Bajirao who fell down as a result of the blow. Upsarpanch Subhash was assaulted by accused Jayawant by the same iron bar who also fell down. Thereafter accused Trimbak beat Subhash by iron bar. The accused Trimbak also participated in the assault. Shivaji Kapre (P.W. 1) witnessed the incident from the short distance. He was in the field collecting the fodder and after seeing the incident he raised alarm. Some of the accused persons on hearing his shouts rushed towards him. He therefore ran away from the field. It is the case of the prosecution that Shivaji Kapre (P.W. 1) was with the injured persons i.e. deceased Bajirao, Jaising, Subhash and Laxman at the relevant time. Bajirao and Subhash were severally injured. All of them were lying in the pool of blood. After some time two police personnel arrived on the spot. They stopped the truck which was going by the nearby road loaded with the sugarcane. They put injured Bajirao, Subhash and Jaising in the said trucks. Shivaji and Laxman also boarded the said truck. The truck was brought to Jejuri Municipal Hospital. Doctor who was on duty at the hospital, examined Bajirao and declared him dead. Subhash and Jaising were unconscious. They were referred to Sassoon Hospital, Pune for proper medical care and treatment. Police took them to the Sassoon Hospital. Chandrakant, Bajirao and Appa were also brought there. The First Information Report was lodged by Shivaji, Exhibit
41. On the basis of this report, offence was registered against the accused persons. During the course of investigation, the statements of witnesses were recorded. Accused were arrested. Pursuant to Memorandum statements discovery was effected. During the course of investigation dying declarations of injured Subhash and Jaising were recorded. Dr. Waghmare conducted post-mortem examination on the dead body of Bajirao. On completion of investigation, charge was framed against the appellants and same was explained to them. The appellants pleaded not guilty and claimed to be tried.
5. The learned counsel for the appellants has submitted that evidence of injured eye witnesses i.e. P.W. 2 Jaising Kapre, P.W. 5 Subhash Kapre and P.W. 7 Mahadeo Kapre contains omissions, improvements, contradictions in respect of material particulars of the prosecution case. Jaising has deposed that all the accused persons encircled deceased, this witness, Shivaji (P. W. 1), Subhash (P.W. 5) and launched an assault. It is contended that this witness has received injuries on his back and therefore it is difficult to believe that this witness could have seen the incident. It is contended that the evidence of P.W. 2 shows that he has exaggerated the incident to ensure that all the accused persons who were from the opposite group be implicated. This witness admitted hostility between the accused and deceased on account of earlier litigations. It is submitted that the conduct of this witness in not raising alarm or not doing anything for seeking help when he saw the accused persons armed with weapons at the distance of 25 feet was unnatural and creates doubt about the presence of this witness. It is contended that there is a variance in his previous statement (D.D.) and his substantive evidence. Similarly the testimony of this witness is inconsistent with the evidence of other alleged eye witnesses.
6. The learned counsel for the appellants has submitted that so far as evidence of P.W. 5 Subhash Kapre is concerned, this witness himself has admitted that all the accused persons were on inimical terms with the deceased. He has not mentioned that the accused persons were armed with iron bar. However, stated that the accused were armed with stones, sickles, axes and chains. Similarly, in the previous statement of this witness Subhash (D.D.) did not mention that Bajirao was assaulted. On the other hand stated that the victims were assaulted with the stones and chains. This witness had not mentioned about the assault by axes or iron bars. It is submitted that testimony of this witness does not inspire confidence and therefore unsafe to rely upon for awarding conviction.
7. The learned counsel for the appellants has submitted that so far as evidence of P.W. 7 Mahadeo Kapre another alleged eye witness is concerned, it is pertinent to note that this witness did not mention to the police over the phone that accused no.1 assaulted deceased. This witness has also not informed the police that Jaising (P.W. 2) was also assaulted by the accused. The presence of this witness is doubtful as this witness has stated that at the relevant time he was grazing sheeps near the water reservoir. It is further submitted that the evidence of this witness is also not consistent in respect of assault alleged to have been committed by the accused on the victims and is in variance with the material particulars of the prosecution case. The presence of this witness appears to be highly doubtful in view of the conduct of this witness in not raising alarm at the relevant time.
8. The learned counsel for the appellants further contended that so far as evidence of P.W. 3 Appa Kapre (injured eye witness) is concerned, it is submitted that conduct of this witness makes the presence of this witness at the relevant time improbable and doubtful as he raised no alarms / shouts when he saw the accused coming towards him. The prosecution has not proved motive / reasons why the accused assaulted him. It is further contended that this witness was present in the field busy doing agricultural operations and therefore the presence of this witness at the scene of offence is also doubtful.
9. It is further contended by the learned counsel for the appellants that P.W. 4 Chandrakant Kapre is another injured eye witness who has admitted that all the accused were on cross terms with the deceased. However the accused had no motive or reasons to assault this witness. Therefore evidence of this witness does not appear to be probable. He is a chance witness who came out of the sugarcane field on hearing the commotion and claimed to have witnessed the incident. He did not raise alarm. The evidence of this witness would show that at the time of incident he was in the field where the sugarcane crop was standing and therefore it was not possible for him to witness the alleged incident which he claimed to have seen after coming out of the sugarcane field. The learned counsel for the appellants therefore contended that the evidence of eye witnesses P.W. 5 and P.W. 7 as well as evidence of P.W. 3 and P.W. 4 in respect of incident of assault is contradictory to each other and in variance with material particulars of the prosecution case and creates serious doubt about the authenticity thereof and therefore ought not to have been relied upon by the trial court.
10. The learned counsel for the appellants further submitted that the evidence of eye witnesses is also not consistent with the medical evidence. It is submitted that while conducting the post-mortem examination on the dead body of deceased Bajirao, doctor noticed only two injuries on the head of the deceased, out of which injury no. 1 only was fatal to the deceased. It is contended that as per the case of the prosecution accused No.1 gave only one blow on the head of the deceased, however there were two injuries found on the head of the deceased. The prosecution failed to establish which out of these two injuries found on the head of the deceased was caused by accused no. 1. It is no doubt true that the deceased had as many as 22 injuries on his back, however the cause of death as per the doctor was shock due to head injury with fracture. It is therefore contended that the evidence adduced by the prosecution apart from being inconsistent with material evidence is also untrustworthy.
11. The learned counsel for the appellants has contended that so far as recovery of weapon is concerned, it cannot be relied on since panch witness has admitted that none of the accused were present in the police station, panchnama was already written and panch witness was asked to sign the same. The learned counsel for the appellants therefore submitted that the entire prosecution case is untrustworthy and therefore the impugned judgment and order so far as three appellants are concerned is liable to be quashed and set aside.
12. The learned Additional Public Prosecutor on the other hand has supported the judgment and order of conviction passed by the trial court so far as the present three appellants are concerned. It is submitted that P.W. 1 Shivaji unfolded the material particulars of the prosecution case that the accused came on the spot armed with weapons like axes, iron bars, cycle chains, lathis and guptis, they encircled the deceased Bajirao, Subhash, Jaising and Laxman. Accused No. 1 Jayawant gave a blow with iron bar on the head of Bajirao who fell down as a result of this blow. Thereafter Subhash was assaulted by accused No. 1 Jayawant by the iron bar, he too fell down on the ground. Then Trimbak beat Subhash by the iron bars and sticks. Other accused also participated in the assault. It is submitted that evidence of P.W. 2 Jaising corroborates the testimony of P.W. 1 Shivaji who has stated that the accused were armed with iron bars, lathis, axes, encircled deceased and others and launched an assault. Bajirao fell down on the ground as a result of the assault made by accused Jayawant, accused Balu and accused Ashok also beat him. This witness suffered bleeding injury. It is submitted that the evidence of P.W. 7 Mahadeo is also consistent with the material particulars of the prosecution case and corroborates the testimony of other eye witnesses.
13. It is contended that in the instant case Bajirao succumbed to the injuries sustained by him during the course of assault. P.W. 5 Subhash and P.W. 2 Jaising also sustained injuries in the said assault. It is contended that suggestions given by the defence to the eye witnesses that they have implicated the accused in view of the rivalry between the two groups has no basis particularly because the evidence of eye witnesses is consistent, cogent and is corroborated by the medical evidence. Similarly P.W. 5 Subhash and P.W. 2 Jaising are also injured witnesses. It is contended that merely because some of the witnesses are related to the injured person that by itself does not render their evidence untrustworthy if it is otherwise cogent and reliable. The contradictions and omissions which are brought in the testimony of some of the prosecution witnesses are not of a material nature and therefore it does not affect the credibility of the prosecution evidence. It is contended that the trial court was justified in accepting the prosecution evidence which has been corroborated by the medical evidence and the trial court was justified in convicting the appellants for the offences charged.
14. We have considered the contentions canvassed by the learned counsel for the appellants and the learned Additional Public Prosecutor for the State and also scrutinised the entire evidence adduced by the prosecution. At the outset, we want to express that in the instant case in all 29 accused were prosecuted for commission of various offences punishable under the Indian Penal Code, however the trial court convicted 10 accused for commission of different offences punishable under the Code. The present appeal has been filed by those 10 accused persons who were convicted by the trial court. During the pendency of the appeal, appellant nos, 2, 3, 4, 6, 7, 8 and 9 have compounded the offences and this Court vide Order dated 10th March 2005 in view of the compounding of offences disposed of the appeal of appellant nos. 2, 3, 4, 6, 7, 8 and 9. The criminal appeal survived only in relation to appellant no. 1 Jayawant, appellant no. 5 Balu and appellant no. 10 Trimbak and was heard finally on merits.
15. The important evidence is of eye witnesses P.W. Shivaji Sarjerao Kapre, P.W. 2 Jaising Kashinath Kapre, P.W. 5 Subhash Shivram Kapre and P.W. 7 Mahadeo Sarjerao Kapre. Similarly, evidence of eye witnesses P.W. 3 Appa Sarjerao Kapre and P.W. 4 Chandrakant Bajirao Kapre is in respect of main incident of assault in which Bajirao and other prosecution witnesses received injuries, Bajirao succumbed to the injuries. It will be appropriate at this stage to consider the evidence of these witnesses.
16. P.W. 1 Shivaji in his examination-in-chief has stated that on 18th December 1986 at about 2.30 p.m. after election, Bajirao (deceased), Subhash (P.W. 5), Jaising (P.W. 2), Laxman and Shri Deo and one Gramsevak Mahadeo (P.W. 7) went to the field known as "Shericha Mala". After some time Shri Deo, Election Officer, Mahadeo left the said field. It has come in the examination-in-chief of this witness that all the accused persons armed with various weapons like axes, iron bars, cycle chains, lathis, and guptis came from northern side of the river. All these accused encircled Bajirao, Subhash, Jaising and Laxman. Accused Jayawant gave blow with an iron bar on the head of Bajirao. This witness saw the incident from 70 to 80 paces. Bajirao fell down on the ground as a result of the said blow. Subhash was also assaulted by accused Jayawant by iron bar who also fell down. Trimbak and other co-accused beat Subhash by iron bar and sticks. Accused no. 24 Pralhad also beat him by stick. This witness has further stated that accused 19 Ashok beat Jaising with iron bar. This witness has stated that on seeing the said incident he started shouting. Shouts were heard by some of the accused persons who rushed towards him and therefore he started running away from the said place towards Village Chikanewadi. This witness has further stated in his evidence that his brother Appa (P.W. 3) was doing agricultural operations in the field. Appa was also assaulted. One Chandrakant was watering sugarcane crop in the adjacent land. On hearing shouts of Appa he came out of the sugarcane crop and on seeing him the accused persons also started assaulting him. As per the testimony of this witness when he came back to "Shericha Mala" he saw Bajirao, Jaising, Subhash and Laxman were on the spot in the injured condition. This witness thereafter went to Jejuri Police Station and lodged the complaint, Exhibit 41.
17. In the cross-examination of this witness it has come that the first attack was made by the accused on Bajirao, which continued for about 4-5 minutes. The next attack was made on Subhash which continued for 2-4minutes and the third attack was on Jaising who was assaulted for about 5-6 minutes. Some contradictions and omissions which are brought out by the defence in his evidence, in our view, are not material in nature and it does not affect the veracity of the testimony of this witness.
18. P.W. 2 Jaising in his examination-in-chief has stated that the accused persons came on the spot in a group armed with weapons like iron rods, bars, lathis, axes and encircled him and others and started assaulting him and others. This witness has stated that accused Jayawant was holding stick and gave a blow on the head of Bajirao as a result Bajirao fell down on the spot. He has further stated that accused Jayawant also beat him by stick on his head. Accused Balu, accused Ashok also beat him. According to this witness accused Balu assaulted him by a blunt side of an axe.
19. In the cross examination of this witness (P.W. 2) it has come that he noticed the arrival of the accused persons from the distance of about 25 ft. They were armed with weapons. This witness was standing near the tractor. It has also come in the cross-examination of this witness that when the accused persons came close to him and were saying "Hana Mara" (in vernacular). This witness further stated in the cross-examination that this witness as well as the others were assaulted by the accused near the cattle shed of Bajirao. The evidence of this witness does not suffer from material omissions and contradictions and corroborates the material particulars of the prosecution case.
20. P.W. 5 Subhash in his examination-in-chief has stated that all the accused persons came on the spot from the side of the river armed with stones, sticks, axes, chains. Accused Jayawant was armed with iron bar and assaulted Bajirao on his head with the same. Bajirao fell down on the ground as a result of the said assault. According to this witness accused Trimbak assaulted him by iron bar. He has further stated that all the accused persons started beating him, Bajirao and Jaising. The defence though conducted lengthy cross-examination of this witness, however, failed to get any material which would affect the veracity of the testimony of this witness.
21. So far as evidence of P.W. 7 Mahadeo is concerned, he claimed that accused Jayawant was armed with iron bar, accused Trimbak was also armed with iron bar, accused Sudam and accused Vinayak were armed with axes. This witness has stated that deceased Bajirao, P.W. 5 Subhash, Laxman and Jaising were visible to him from the place where they were standing. This witness has stated that six persons along with accused Jayawant started assaulting Bajirao and others. In the cross examination of this witness it has come that this witness saw the incident while he was standing on the bank of the river.
22. The evidence of P.W. 3 Appa demonstrates that on 18th December 1986 at about 3.00 p.m. he was in his field doing agricultural operations. He was alone in the land. At that time 10 persons came running towards him. They wee accused Vinayak, accused Hanumant, accused Manik, accused Kundlik, accused Sudam @ Balu, accused Dattatraya, accused Jayawant, accused Chimanrao, accused Gulab Shivaji, they were armed with weapons like axes, iron bars, sticks, chains. According to this witness all those accused persons beat him and as a result of the said assault he received injuries on his buttocks, both arms and legs. This witness has stated in general that all the accused came and assaulted him. In the cross examination this witness has stated that he saw the accused persons from the distance of 15-20 paces. They came in one group and as soon as he saw them he started running away from the said spot. He has further stated in his cross-examination that while he was running away from the spot the assailants followed him and inflicted injuries on his back and due to the said assault this witness fell down on the ground. He has stated that the assailants beat him for about 5-10 minutes.
23. It is pertinent to note that the eye witnesses were injured in the assault, their presence on the scene of offence more or less is not in dispute. The testimony of these witnesses is also consistent with the material particulars of the prosecution case and corroborates the evidence of each other. The evidence of these witnesses is also corroborated by the medical evidence. P.W. 10 Dr. Wagholikar examined P.W. 5 Subhash, P.W. 2 Jaising. Medical Officer noticed the following injuries on the person of P.W. 5 Subhash:
1. Contusion over Rt. scapular region, 3" x 1".
2. Six contusions of size 4" x 5" x 1" over Rt. thigh laterally.
3. Contusion over lower abdomen, horizontally placed, 5" x 1".
4. Abrasion over Rt. Knee 1" x 1/2".
5. Diffuse swelling of Rt. knee and Rt. ankle joint with restricted movements. Fracture dislocated of Rt. Knee was suspected. It was also suspected that the tibia and fibula were also fractured. Medical Officer opined that these injuries could be caused by hard and blunt substance such as sticks or iron bars and they were caused within six hours. Exhibit 53 is the certificate issued by the medical officer in respect of the injuries sustained by P.W. 5 Subhash.
24. Similarly, P.W. 10 Dr. Wagholikar on examining P.W. 2 Jaising noticed the following injuries:
1. Six contusions all over back of size 4 to 5" x 1".
2. Diffuse swelling, tenderness, restricted movements, Rt. fore arm and Rt. leg. Fractures of Rt. radius and ulna, middle 1/3 region and fracture on Rt. tibia and fibula, middle 1/3 region.
3. C.L.W. over left parietal region, 3" 1/4" x 1/4" As per the opinion of the doctor the injuries could have been caused by hard and blunt object like iron bars and sticks.
25. P.W. 14 Dr. Waghmare who has examined P.W. 3 Appa noticed following injuries sustained by this witness :
1. 1 1/2 ft. linear wheel about 2 cms, broad and was over the left upper arm upto the T-5, 3 cm. below the shoulder Jt.
2. 8 inches liniear wheel 6 inches below the shoulder Jt., at the level of small pox.
3. Linear wheel below the injury No. 26 x 1 cm. transverse.
4. Swelling and redness present over both the upper arms.
5. Multiple wheel marks all over the back.
As per the opinion of the Dr. Waghmare the injuries noticed on the person of this witness are possible by sticks and iron bars. Lastly, P.W. 4 Chandrakant also suffered following injuries:
1. C.L.W. 21 c.m. rt. forearm, 10 cm. distal to elbow jt. It was sub cutaneous deep with haemotoma.
2. Swelling of left arm without any fracture.
3. Swelling on the back.
4. Swelling on left lower limb, No visible injury. P.W. 14 opined that the injuries sustained by this witness could have been caused by hard and blunt object like sticks and iron bars.
26. It is pertinent to note that the injuries sustained by these witnesses were not minor or superficial but were serious in nature and caused at the hands of the assailants. While appreciating the evidence of these witnesses the fact that these witnesses were injured in the assault cannot be ignored. Similarly their presence at the time of the incident can not be disputed. P.W. 14 Dr. Waghmare examined Bajirao who was unconscious and was in coma and found following external injuries on his body:
1. Head injury with compound fracture of the skull. It was on left parietal prominance about 4 c.m. above the left pinna of ear. Size of the injury anterior posteriorly was 2-4 inches. It was within 24 hours and could have been caused by hard and blunt object like an iron bar and stick.
2. Contused lacerated wound on the left pinna, of ear, 1 x 1 cm. and cartilage deep. (ii) 3 x 2 cms. lower part of injury no. (1) extending from external meatus to the outer aspect of pinna. It was a fresh injury, as a result of striking with hard and blunt object like a stick and an iron bar.
3. There was a fracture of left radio ulna. It was a compound fracture. There was a C.L.W. 2 x 3 cm. bone deep, 5 inches distal to left elbow. Huge heamatoma around the fracture. Haematoma was about 5 x 5 cm. in diameter. This was also within 24 hours and could have been caused by hard and blunt substance like a stick and an iron bar.
4. Injuries on back: There were 16 injuries on the back and 6 injuries on thighs. Dr. Waghmare also noticed the following internal injuries on the body of deceased:
1. Fracture of the skull on left parietal prominance, 4 c.m. above the left pinna of the ear, size 2.4 inches in length. Direction antero posterior.
2. Brain It was highly congested, coverings, were reptured and subdural haematoma of a large size was present. The Medical Officer opined that the probable cause of death was result of shock due to head injury with fractures (compound) of the skull and radio ulna. He has also opined that the said injuries could have been caused by weapon like iron bar, sticks.
27. In the instant case ocular testimony of the eye witnesses those who were injured in the assault is corroborated by the medical evidence and the testimony of these witnesses being consistent with the material particulars of the prosecution case, the trial court was justified in placing reliance on their evidence.
28. In the instant case appellant Jayawant was convicted for the offence of murder punishable under Section 302 of the Indian Penal Code. Similarly, appellants Jayawant, Balu and Trimbak and other co-accused were also convicted under sections 147, 148, 149, 447 and 325 of the Indian Penal Code. In the instant case other seven appellants were permitted by this Court to compound the offences and their appeal came to be disposed of accordingly. However conviction with the aid of Sections 147, 148, 149 will not be sustained. Conviction and sentence of appellant Jayawant for the offence punishable under Section 302 of the Indian Penal Code is sustained. Conviction and sentence of appellants Jayawant, Balu and Trimbak for the offence under Sections 447 and 325 is sustained with the aid of Section 34 of the Indian Penal Code. Similarly, the conviction and sentence of appellants Jayawant and Balu for the offence under Sections 447, 323 of the Indian Penal Code is sustained with the aid of Section 34 of the Indian Penal Code.
29. For the reasons stated herein above, criminal appeal suffers from lack of merits. Same is dismissed.