Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 478 OF 2013
Ganesh Gulab Garad ...Appellant
ALONG
The State of Maharashtra ...Appellant
Mr. Daulat G. Khamkar for appellant in Appeal No. 478/2013 and
Respondent in Appeal No. 839/2013.
Mr. S.S. Hulke, APP for Appellant- State in Appeal No. 839/2013 and Respondent-State in Appeal No. 478/2013.
Mr. Jay S. Patil, i/by. Mr. V.V. Purwant for Original Complainant. ...
JUDGMENT
1. Criminal Appeal No. 478 of 2013 is fled by the appellant original accused No. 1 against the impugned judgment and order dated 04.03.2013 passed in Sessions Case No. 275 of 2010 by the Bhagyawant Punde learned Additional Sessions Judge, Solapur by which he has been convicted for the offences punishable under Sections 302 and 307 of the Indian Penal Code (for short ‘IPC’).
2. Criminal Appeal No. 839 of 2013 is fled by the State against the said impugned judgment and order dated 04.03.2013 thereby acquitting the Respondents i.e. original accused No. 1 and
3.
3. Both the appeals are arising out of the same judgment and order, hence, we deem it appropriate to dispose of the same by this common judgment.
4. The prosecution story as narrated in the appeal memo is as under:- On 14.06.2010 at about 15.00 hrs complainant Sunil Kambale fled complaint with Karmala Police Station and contended that he is the elder brother of Dnyaneshwar Kambale. Dnyaneshwar Kambale was the President of Republic Party of India (for short ‘RPI’) since last 15 years of village Jeur. In village Jeur there are 8 to 10 houses of Matang community and 25 to 30 houses of Harijan community. Since from 2008 accused no. 2 Ganesh was quarreling with Dnyaneshwar on the ground that as he belongs to Harijan community he should be the President of RPI, Jeur. However, as the work of Dnyaneshwar Kamable was well and good therefore his post of President of RPI contnued for further period by the villagers. Complainant alleged that before two years of 14.06.2010 there was quarrel in between Dnyaneshwar and accused no. 2 on said count, and some cases were also fled against each other. On 14.06.2010 at about 11.00 am when he was at his shop, at that time, one boy namely Tavshe @ Tausif Sadik Ali Shaikh came to him and told that, his younger brother Dnyaneshwar and nephew Santosh were assaulted by accused no. 2 Ganesh and his brothers namely Vijayaccused no. 1, Rajendra- accused no. 2 and Sanjay- absconding accused. He further told that above named persons assaulted Dnyaneshwar by knife and gupti near veterinary hospital and Bajartal maidan. Having heard this, complainant rushed towards the place of incident. As per narration in the complaint accused Ganesh and his brothers seeing complainant fed away from the spot of incident. It is alleged that the accused no. 2- Ganesh was having gupti in his hand and accused no. 3- Rajendra was having knife in his hand. He saw that Dnyaneshwar and his nephew Santosh were lying in pool of blood. He brought tumtum (vehicle) and carried them to the hospital of Dr. Surana.
5. The complainant further alleged that while going to the hospital of Dr. Surana, he inquired with Dnyaneshwar about the incident. Upon inquiry Dnyaneshwar told that when he and Tausif Shaikh were coming from their house, he felt pierce in his back. At that time, accused no. 2-Ganesh came in front of him and assaulted him by gupti on chest and throat. Accused No. 3- Rajendra stabbed him by knife from backside. Accused No. 1- Vijay and absconding accused Sanjay were holding his hands. He further stated that Santosh was going by the side of the road. He saw the incident and rushed towards Dnyaneshwar. As such, the accused assaulted him on his abdomen. While assaulting the accused were uttering that by killing Dnyneshwar he (Ganesh) would become the President of RPI. Accused No. 2- Ganesh was asking his brother to kill both of them. He further stated that when he reached to the hospital of Dr. Surana, the doctor told him to carry Dnyaneshwar to a big hospital. As such, he and his relatives carried Dnyaneshwar and Santosh to Akluj for treatment. However, Dnyaneshwar succumbed to the injuries en-route. Santosh had sustained seven injuries. He was admitted in Ashwini hospital at Akluj in unconscious condition. Thereafter, he came to Jeur, from there he went to Karmala and fled complaint against the accused nos. 1 to 3 and absconding accused Sanjay as referred above.
6. Police Station Offcer, Karmala on the basis of complaint fled by complainant Sunil Kambale registered Crime bearing NO. 176/2010 for the offence punishable under Section 302, 307 read with 34 of IPC. After registration of crime, the law was set in motion and the investigation of the crime was handed over to Rajendra Padwal, API, Karmala (PW-12). He in turn, visited the spot of incident on 14.06.2010 and prepared the spot panchnama at 5.00 pm. Mr. Chous, PSI (PW13) prepared inquest panchnama upon the dead body of Dnyaneshwar Kambale in presence of two panchas at Karmala and referred his dead body to Cottage hospital, Karmala for post mortem. On 15.06.2010, Mr. Rajendra Padwal (PW12) seized the clothes of deceased Dnyaneshwar under seizure panchnama vide Exh. 44. On 17.06.2010, he arrested the accused nos. 1 and 3 under arrest panchnama vide Exh. 50. On 23.06.2010. He arrested accused no. 2- Ganesh under arrest panchnama vide Exh. 51. On 25.06.2010 accused no. 2-Ganesh gave a disclosure statement to him in presence of two panchas and shown his readiness to produce gupti which was concealed by him at village Kurduwadi. As such, Mr. Rajendra Padwal (PW12) recorded his memorandum statement and thereafter accused no. 2-Ganesh carried panchas and Rajendra Padwal (PW12) to Kurduwadi in market from where the accused NO. 2 discovered one gupti and a shirt which was worn by him at the relevant date and time. Mr. Rajendra Padwal (PW12) seized those two articles in presence of panchas. On 25.06.2010 accused no. 2- Ganesh was referred to Medical offcer, Cottage hospital, Karmala as he was having injury upon his wrist. Injured Santosh was admitted in Ashwini hospital at Akluj. Mr. Rajendra Padwal (PW12) directed PSI S.A. Chaus to record his statement, as such on 18.06.2010, PSI Chaus, visited hospital at Akluj where Santosh was admitted. He recorded statement of Santosh on 18.06.2010 and handed over the same to the Rajendra Padwal (PW12). The investigating offcer recorded statements of several witnesses. On 06.07.2010 he seized the clothes of injured Santosh under seizure panchnama vide Exh. 48 in presence of two panchas. On 06.07.2010, Rajendra Padwal (PW12) issued letter to Medical Offcer, Civil Hospital, Karmala and asked his opinion whether the injuries caused to Dnyaneshwar Kambale and Santosh Kambale are possible by gupti. On the same day, he issued letter to Medical Offcer, Cottage Hospital, Karmala and asked to submit post mortem report of Dnyaneshwar Kambale. During investigation he collected the medical certifcates of Santosh Kambale from Ashwinin Hospital, Akluj vide Exh. 70. He also collected the medical case papers of Santosh vide Exh. 71 which consists his discharge card and other relevant documents. On 25.07.2010, Rajendra Padwal (PW12) referred muddemal articles to chemical analyzer, Pune for its analysis. During investigation he received the C.A. report. After completion of investigation, the investigating offcer submitted the chargesheet in the Court of JMFC at Karmala.
7. As already stated, on completion of the investigation, the police has fled the charge-sheet. As the alleged charge of murder is triable by the Court of Sessions, the learned Judicial Magistrate, First Class, committed the case to the Court of Sessions, Solapur. Thereafter the learned Additional Sessions Judge, Solapur, framed charge against the accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code. The charge was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial and false implication.
8. After considering the material and evidence on record, the trial Court recorded its fndings that the prosecution has established its case against the Accused No.2 Ganesh Garad for the offence punishable under Sections 302 and 307 of the Indian Penal Code and failed to prove its case against Accused No.1 Vijay Garad and Accused No.3 Rajendra Garad by the judgment and order dated 04.03.2013. The learned Additional Sessions Judge, Solapur by the judgment and order dated 04.03.2013 convicted the Accused No.2 Ganesh Gulab Gard for the offence punishable under Sections 302 and 307 of the Indian Penal Code and sentenced him to suffer imprisonment for life and fve years respectively and fne. Both the sentences imposed upon Accused No.2 were directed to be run concurrently.
9. Heard the learned counsel for the parties. With their able assistance we have perused the Memo of appeals, notes of evidence and material placed on record.
10. Mr. Khamkar, the learned counsel appearing for the Appellant – original accused No.2 Ganesh has submitted that, the reasons given by the trial Court in convicting the Accused No.2 are totally contrary to the evidence on record. He submitted that the prosecution has failed to prove the motive on the part of the accused for commission of the alleged offence, and if the prosecution failed to prove the motive for commission of offence, the conviction of accused No.2 cannot be sustained. It is submitted that the trial Court did not consider and appreciate the oral as well as documentary evidence in proper perspective. It is also submitted that the prosecution has failed to prove the motive and intention on the part of the Accused No.2 in committing the murder of deceased Dnyaneshwar. It is also submitted that since the accused Nos.[1] and 3 have been acquitted holding that only because they are real brothers of Accused No.2, they were implicated in the present case, on the same basis the accused No.2 ought to have been acquitted as accused No.2 has been falsely implicated in the present case in order to take a revenge due to political rivalry as also due to pending criminal cases. It is further submitted that PW-6 Sunil was not an eye witness to the alleged incident and at that time he was in his shop, and one Toushik Shaikh came to his shop on the day of incident and informed the incident to him. It is submitted that the learned Additional Sessions erred in not considering that the deceased Dnyaneshwar is said to have told PW-6 Sunil, while being carried to the hospital of Dr. Surana in a tumtum that when the deceased and Toushik were coming from house to Veterinary Hospital, that the Accused No.2 assaulted him by gupti upon his chest and the Accused No.2 stabbed him from back side by knife whereas Accused No.1 and absconding Accused Sanjay were holding his hands, and therefore, it is clear that evidence of PW-6 Sunil is not a direct evidence but it is hearsay evidence and no reliance could be placed on the said evidence in order to hold that the Accused No.2 is guilty of alleged offence. He, therefore, submitted that the learned Judge erred in holding that the evidence of PW-6 Sunil is direct evidence. It is submitted that the evidence of PW-7 Santosh, being the nephew of deceased Dnyaneshwar, is an interested witness, and therefore, no reliance can be placed on said evidence. It is submitted that though the incident has been occurred in the busy locality i.e. in the bazaar area in front of Veterinary Hospital, surprisingly no independent witness was examined in support of the prosecution case. It is further submitted that there are inconsistencies in the oral as well as medical evidence. It is the contention of the learned counsel appearing for the Accused No.2 -Appellant that since the learned Sessions Judge has rejected the prosecution case so far as it relates to the accused Nos.[1] and 3, on the same set of evidence, it was incumbent upon the learned Sessions Judge to reject the prosecution case so far as it relates to Accused No.2. The learned Judge has not properly considered the material omissions in the evidence of PW-6 and PW-7. There was considerable delay of 4 hours in lodging the FIR and therefore it creates serious doubt about the truthfulness case of prosecution. It is submitted that the learned Sessions Judge has not properly considered the admissions given by PW-8 Dr. Khot in her cross examination which shows that the post mortem report is doubtful. The learned counsel for the Appellant – Accused No.2, therefore, submitted that the fndings recorded by the trial Court are perverse and contrary to record, therefore original accused no. 2 deserves to be acquitted. It is further submitted that so far Chemical Analyzer’s report is concerned, the same is inconclusive in so far as Gupti and Earth are concerned, and the blood group of accused No.2 cannot be determined and inconclusive, so also the blood group of deceased is not determined. In support of his aforesaid submissions, the learned counsel appearing for the Appellant – Accused No.2 has sought to place the reliance on the following judgments:- 1] (2021) 1 SCC (Cri) 788, Waikhom Yaima Singh v/s. State of Manipur 2] 1980 (Supp) SCC 434, Padman Mehere Anr v/. State of Orissa. 3] 1997 CriLJ 1788, Narayan Kanu Datavale ors v. State of Maharashtra 4] AIR 2003 SC 507, Joseph v/s State of Kerala. 5] AIR 2001 SC 1380; Sohan Anr v/s. State of Haryana; 6] AIR 1971 SC 1586, The State of UP Anr v. Jaggo @ Jagdish ors 7] 1996 Cri.LJ 3147; Ashraf Hussain Shah v. State of Maharashtra 8] AIR 1988 SC 1158 Awadhesh anr. v/s. State of Madhya Pradesh. 9] (2003) 9 SCC 420, Khima Vikamshi ors. v. State of Gujarat 10] 2003 Cr.LJ 2302, Salim Akhtar @ Mota v. State of UP 11] Manu/MH/2775/2015, Malhari Gopal Bhoval ors. v/s. State of Maharashtra. 12] 2018 ALL MR (Cri) 174, Nana s/o. Shriram Wankhade v/s. State of Maharashtra. He lastly submitted that the Appeal fled by the Appellant – Accused No.2 may be allowed and appeal fled by the State may be dismissed.
11. On the other hand, the learned APP appearing for the State submitted that, in the present case there is direct and trustworthy evidence regarding commission of offence brought on record by the prosecution. It is submitted that the learned Additional Sessions Judge has erred in acquitting the accused Nos.[1] and 3 though there was direct evidence of PW-6 and PW-7 that the accused Nos.[1] and 3 were also present on the spot and were holding the hands of Dnyaneshwar. He further submitted that on the one hand the learned Additional Sessions Judge convicted Accused No.2 and on the other hand acquitted the Accused Nos.[1] and 3 which according to the learned APP, shows mis-carriage of justice. The prosecution has proved the intention and motive on the part of all the accused in commission of offence by adducing cogent and reliable evidence on record. The learned Additional Sessions Judge has not applied his mind in appreciating the oral as well as documentary evidence on record in acquitting the accused Nos.[1] and 3. It is submitted that there is direct and corroborative evidence in the nature of medical evidence brought on record by the prosecution to prove its case against all the accused. He, therefore, submitted that the Appeal fled by the State against acquittal of Accused Nos. 1 and 3 may be allowed and, the Appeal fled Appellant-Accused No.2 against conviction may be dismissed.
12. We have perused the entire evidence on record including the charge framed by the trial court, deposition of witnesses, medical report and other evidence brought on record by the prosecution.
13. Now coming to the evidence of prosecution, PW-1 Dattatray Talekar is the panch witness on inquest panchanama. PW-2 Tanaji Nimgire is also a panch witness on seizure panchanama of clothes of deceased Dnyaneshwar. PW-3 Vinod Shinde is a panch witness on spot panchnama of incident. PW-4 Jaywant Dadasaheb Nade is also panch witness on seizure panchanama of clothes of injured Santosh Kambale.
14. PW-5 Gorakh Babu Durgule is the panch witness of arrest panchanama of accused. He stated that On 25.06.2010 he was called by police. One Balasaheb Rangnath More was another panch with him. Accused Ganesh gave disclosure statement before them that he is ready to produce one gupti and shirt from Kurduwadi in a bush near market yard. Disclosure panchanama was prepared and he signed it. The accused showed the said spot from which one gupti and shirt was recovered from the bush. He stated that he saw the gupti and shirt. The gupti was having blood stains, it was having sharp edge on both sides. The shirt was also having blood stain. On the spot the police seized those articles and prepared seizure panchanama. He signed the seizure panchanama. In his cross examination, he stated that the injury upon the wrist of Ganesh was of one and half inch in length and it was abrasion. The police had carried Ganesh to hospital before panchanama. In his cross he admitted that in the memorandum panchanama it is not mentioned that there was blood stains upon the gupti.
15. The prosecution has examined PW-6 Sunil Ramchandra Kambale, who is the brother of deceased Dnyaneshwar. He stated that deceased Dnyaneshwar was President of RPI till last i.e. up to his death. Due to the dispute of ‘President-ship’ the accused were annoyed since his brother Dnyaneshwar had occupying the said post. He stated that the accused beat his brother Dnyaneshwar, nephew Santosh, Datta and his son Nagesh on 19-10-2008, due to which Dnyaneshwar had fled complaint against the accused bearing RCC No.49/2009 and the said case is pending. The said case is against the accused persons and absconding accused Sanjay. He stated that the incident took place on 14-6-2010 at 11.00 am. At the time of incident he was in his shop. At that time one Muslim boy Taushik Sadique Shaikh came to his shop and informed that the accused Nos.[1] to 3 and Sanjay Garad assaulted his brother Dnyaneshwar and nephew Santosh in bazar area in front of Veterinary hospital. He went to Veterinary Hospital with his nephew Datta and Rafque. On seeing PW-6 the accused Nos.[1] to 3 and Sanjay started running, he saw that Ganesh was having gupti in his hand and Rajendra was having knife in his hand, and Dnyaneshwar and his nephew Santosh have fallen in the pool of blood. The witness called one tumtum, and carried Dnyaneshwar and Santosh to the hospital of Dr. Surana. He further stated that on the way to the hospital he asked his brother Dnyaneshwar, what happened? upon which he told him that, when he and Tausha were coming from his house to veterinary hospital at that time he felt pierce in his backside. Dnyaneshwar further told that Ganesh Garad assaulted him by gupti upon his throat and chest and accused Rajendra stabbed him from backside by knife, and Sanjay Garad and Vijay Garad caught hold of his hands. He further told the PW[6] that, Ganesh Garad was saying that, he i.e. Dnyaneshwar was not allowing him to become President of RPI, and he would become the President of RPI by killing him. He also told PW[6] that, at the relevant time Santosh was passing from the way and he rushed towards the spot. Dnyaneshwar told PW-6 that Ganesh gave stab injury by gupti in the abdomen of Santosh and upon shoulder, and Ganesh Garad was telling to his brothers to kill them. At that time, witness reached in the hospital of Dr. Surana. Dr. surana told him to carry Dnyaneshwar and Santosh to Akluj. He carried Santosh and Dnyaneshwar to Akluj in a private jeep. In the hospital doctor declared Dnyaneshwar as dead and Santosh was admitted in Ashwini Hospital. He was unconscious. Thereafter PW-6 carried the dead body of Dnyaneshwar to Jeur. At Jeur near Primary Health Center police jeep was standing and the police asked him to carry the dead body of Dnyaneshwar to Karmala, and as such he carried the dead body to Karmala. Thereafter PW-6 fled complaint in Police Station Karmala. In the cross examination PW-6 stated that he was not the eye witness of the incident of 19-10-2008. This witness PW-6 denied the suggestion of defence that after discussing with Narayan Patil he fled complaint in police station on the next day.
16. The next witness is Santosh Dilip Kambale (PW-7), who is injured. He stated that the incident took place on 14/06/2010 at 10-30 to 11-00 am in front of veterinary hospital at Jeur. At that time he was in the hotel of Ghotane and was drinking water. At that time he heard noise as “Melo Melo”, and as such he rushed towards the place from where he heard the noise. He reached in front of veterinary hospital and saw that Vijay Garad and Sanjay Garad caught hold the hands of Dnyaneshwar Kambale. Rajendra Garad was holding knife, he was behind Dnyaneshwar Kambale, the knife was having blood. Ganeh Garad was having gupti in his hand and he was in front of his uncle Dnyaneshwar Kambale. Ganesh Garad assaulted his uncle by gupti on his abdomen, chest, throat. Rajendra Garad assaulted by knife from backside. Ganesh Garad and his brother were saying that by killing his uncle they would become the President of RPI. PW-7 intervened the quarrel. Ganesh Garad assaulted PW-7 by gupti upon his abdomen and left shoulder. PW-7 and Dnyaneshwar Kambale fell on the ground in pool of blood. At that time Sunil Kambale and Shrikant Kambale came on the spot. The accused gathered on the spot ran away along with weapons. His uncle Sunil (PW-6) and Shrikant brought one tumtum there and carried his uncle Dnyaneshwar Kambale to hospital. PW-7 stated that Dnyaneshwar Kambale told to Sunil Kambale (PW[6]) that when he and Tausif Shaikh came in front of Veterinary hospital he felt pierce in his back. Dnyaneshwar told that Vijay and Sanjay caught hold his hands. Rajendra Garad was at the back side of Dnyaneshwar Kambale by holding knife. It is stated by PW-7 that Dnyaneshwar Kambale further told to his uncle Sunil that Ganesh assaulted him by gupti upon his abdomen, chest and throat. At that time they reached to the hospital of Dr. Surana. Dr. Surana told them that they have sustained severe injuries and to go to hospital at Akluj. Sunil Kambale brought one jeep and carried them to the hospital of Dr. Inamdar at Akluj. PW-7 stated that he was admitted in that hospital, and his uncle Dnyaneshwar Kambale succumbed to the injuries on the way. PW[7] stated that he was admitted in the hospital of Dr. Inamdar for 10 to 12 days. Due to injury in his abdomen, he was unable to speak. On 6-7-2010 he had gone to police station, Karmala and produced his blood stained clothes to police. In his cross the PW-7 stated that he is unable to state whether any other persons heard the noise ‘Melo-Melo’. He stated that the time of incident he was wearing banian. He stated that Dr. Surana did not treat him in his hospital. PW-7 admitted in his cross examination that he did not say anything about the incident to Doctor at Akluj. This witness denied the suggestion of defence that he was conscious on 14-6-2010 to 17-06-2010. PW-7 stated that in the morning he was unconscious. PW-7 denied the suggestion that on 18-6-2010 his uncle had brought one written statement and he signed on it.
17. The prosecution has examined Dr. Saroj Khot (PW[8]), the Medical Offcer at Cottage Hospital, Karmala. She deposed that she conducted post mortem upon the dead body of Dnyaneshwar Kambale and found the following external injuries:- 1] c/w 1 cm x 1 cm on chin. 2] c/w 2 cm x 1 cm to ½ inch on left clavicle. 3] c/w size ½ by ½ by ¼ inch on left supra mammary region 4] c/w size 2 x 1 x ½ inch on left supra mammary region. 5] c/w 1 x 1 x ½ inch on epigastric region. 6] c/w 1 x 1 inch up to intra abdomen on left below 12th rib at backside of chest. She stated that all these injuries are ante mortem. She further deposed that on internal examination, she found that the blood in the abdominal cavity rupture of peritoneal at back side, rupture of upper part of the spleen size 2 x 2 x ½ inch blood in ++ in spleen. She opined the cause of death is due to shock and hemorrhage and due to stab injury to spleen organ. She stated that IO had asked her opinion whether the injury nos.[1] to 6 of column no.17 are possible by gupti vide letter dated 6-7-2010, she replied the same and informed to PI that the injuries are possible by gupti. The Doctor stated that if both the hands of a person is caught hold and assault is made by sharp weapon there is possibility of injury having cavity deep. She stated that if there is loss of one third part of the blood from the body, the patients suffers neurogenic shock, + + means there is loss of 70 to 80 % blood from body. She stated that in case of 80% blood loss from the body there is possibility of instant and sudden death. By fsts and kick blow spleen can be ruptured.
18. The prosecution has also examined Dr. Anant Manikrao Kulkarni (PW-9). He stated that he was attached to Ashwini Hospital at Akluj. He stated that on 14-6-2010 he was on duty, one patient namely Santosh Dilip Kambale was admitted in their hospital at 1-00 pm with history of stab injury. He examined the patient. He found that the patient was having stab injury to abdomen (the left upper abdomen below rib cage measuring about 3 cm x 2 cm x peritoneal deep); stab injury on left shoulder, measuring about 2 cm x 1 cm x muscle deep. There is suggest mild abnormal peritoneal. He stated that the surgery done for the same, injuries found during surgery are stomach anterior and posterior wall perforation at great curvature 2 cm x 1 cm, tear in transverse colon measuring 2 cm x 1 cm diameter, top perforation on anterior wall of jejunum, 1 cm x 1 cm. Haemopantorum of about 500 ml. He stated that all these injuries are possible by any sharp weapon and the age of the injuries within 24 hours and the nature of injury was grievous. He stated that the patient Santosh was admitted in his hospital since 14-6-2010 to 26-6-2010 and he was operated upon his abdomen injuries. In his cross examination he stated that in between 14-6-2010 to 18-6-2010 no one came to record statement of Santosh. He admitted in his cross examination that in Exhibit 73 there is no endorsement that due to pains patient is not in a position to give statement.
19. Another Doctor of Ashwini Hospital, Akluj has been examined by the prosecution viz. Dr. Mukund Shriniwas Jamdar as PW-10. He stated that on 14-6-2010 he examined Santosh Kambale in Ashwini Hospital Akluj and stated that the Santosh Kambale had sustained stab injury upon abdomen. He operated him on 14-6- 2010 and found that he was having peritoneum deep at left side hypo gastric area 2 x 1 cm, stomach both anterior and posterior wall stomach peritoneum 2 x 1 m; tear in transverse mezo colon 2 x 1 cm; two perforation on ant wall of jejunum 1 x 1 cm; Hemo peritornium of 500 ml. He stated that all the above injuries are grievous in nature. In his cross examination, PW10 stated that he has not mentioned the age and shape of the injuries.
20. The next prosecution witness is PW-11 Dr. Suhas Sampat Jadhavar, to whom the PI Karmala referred accused Ganesh Garad for treatment and for medical certifcate. In his deposition PW-11 stated that on 25-6-2010 Ganesh Gulab Garad was referred to him for treatment. He examined Ganesh Garad on 25-6-2010. He stated that Ganesh Garad told him that he had sustained injury by knife. PW-11 found that Ganesh Garad had sustained injuries upon dorsalrally near the wrist joint at forearm of the left hand. The age of the injury was more than 74 hours. The injury was healed. It’s nature was simple in nature. PW-11 issued medical certifcate (Exhibit-80).
21. The prosecution has also examined API Rajendra Narhar Padwal as PW-12. He stated that the investigation of Crime No.176/2010 was handed over to him. He received the FIR and verifed it. He directed PSI Chouse to conduct inquest panchanama, and referred the dead body of Dnyaneshwar Kambale for post mortem. Thereafter he visited the spot, from the spot he seized simple soil and the soil mixed with blood in presence of panchas, he prepared panchanama. Thereafter, he recorded statement of witnesses. On 15-6-2010 PW-12 collected seizure panchanama of the clothes of Dnyaneshwar Kambale vide Exh.44. On 17-6-2010 he arrested accused Rajendra and Vijay. He directed PSI Chouse to record statement of Santosh on 18-6-2010 at Akluj. PSI Chouse handed over the statement of Santosh Kamable to PW-12 on 19-6-2010. In his deposition, PW-12 stated that on 15-6-2010 he received report from Akluj Police Station that Santosh Kambale is unconscious. On 23-6-2010 he arrested accused Ganesh Garad vide arrest panchanama Exhibit 51. PW-12 stated that accused Ganesh Garad was having injury upon his left writ, therefore, he was referred to medical treatment. PW-11 API Rajendra Padwal further stated that on 25-6-2010 the accused Ganesh gave disclosure statement in presence of two panchas that he is ready to produce gupti and shirt which is concealed by him in Market yard, Kurduwadi in bushes near a tree. PW-12 recorded his disclosure statement (Exhibit 52). Thereafter, accused carried him and panchas to market yard Kurduwadi and produced one gupti and shirt. PW-12 stated that the gupti and shirt were having blood stains. PW-12 seized the gupti and shirt in presence of two panchas under Panchanama (Exh.53). On 6-7-2010 Santosh Kambale produced pant, it was having blood stains. PW-12 seized the same in presence of panchas. PW-12 stated that on 12-9-2010 he submitted the charge sheet against the accused. In his cross examination, PW-12 stated that nothing was seized from accused Rajendra and Vijay during their PCR.
22. The last witness examined by the prosecution is API Salim Ahmed Chouse (PW-13). He stated that on 14-6-2010 he was attached to Karmala Police Station and posted at Jeur as PSI, and on that day he received information that two persons were stabbed and carried to Akluj. As such he informed to his superiors about it. He further stated that his superiors asked him to carry the dead body of Dnyaneshwar to Cottage Hospital at Karmala. Thereafter, his superior asked him to reduce into writing the complaint of the complainant. He carried the complainant to Karmala Police Station and obtained his complaint and registered crime at 15-00 hours bearing Crime No.176/2010 for the offence punishable under Sections 302, 307 r/w Section 34 of the IPC. Thereafter, PW-13 handed over the investigation of the crime to PI Padwal (PW-12). In his cross examination, he stated that he has recorded statement of Santosh Kambale. He denied the suggestion of defence that he carried the dead body of Dnyaneshwar to Primary Health Center and that till 14-6-2010 and 15-6-2010 no-one were knowing who was the assailant. PW-13 also denied the suggestion of defence that on 15-6-2010 he prepared false complaint on the say of Narayan Patil and false panchanamas.
23. We have perused the fndings recorded by the Trial Court. The Trial Court in the impugned judgment observed that there is ample evidence on record which indicates that the death of Dnyaneshwar is homicidal death. After considering the submissions of the learned counsel for the parties and after scrutinizing the evidence of the prosecution witnesses including the medical evidence placed on record, and after going through the recitals of the complaint, panchanamas, the nature of injuries and the cause of death of Dnyaneshwar Kambale mentioned in the post mortem report, CA reports and other material on record, the Trial Court has come to a conclusion that the prosecution has established its case against the accused No.2 Ganesh Gard for the offence punishable under Sections 302 and 307 of the Indian Penal Code, and failed to prove its case against the accused Nos.[1] and 3.
24. The prosecution case is mainly based upon evidence of PW-6 Sunil Kambale, who is the brother of deceased, and PW-7 Santosh Kambale, who is injured eye witness and nephew of deceased. As stated herein above PW-6 Sunil has deposed that Dnyaneshwar was president of RPI of village Jeur, and the accused No.2 Ganesh was insisting to become president of RPI of village Jeur. He also deposed that earlier on 19/10/2008 the accused had assaulted Dnyaneshwar and as such complaint was fled against accused bearing RCC No.49/2009. The defence has tried to bring on record that so far as assault of 19/10/2008 is concerned, the accused Ganesh had also fled complaint against Dnyaneshwar for assaulting him. From the evidence on record, it is clear that there was dispute in between accused No.2 Ganesh and deceased Dnyaneshwar upon the post of President of RPI of village Jeur, and therefore, some counter cases were pending between them. Considering the evidence and material placed on record, it is clear that there was a long standing dispute between accused No.2 Ganesh and deceased Dnyaneshwar upon village politics which gave rise to deadly assault upon the deceased Dnyaneshwar by the accused Ganesh on 14/06/2010.
25. In so far as deposition of PW-7 Santosh, who is injured witness, is concerned, he stated that when he reached the spot of incident, he saw that accused No[1]. Vijay and absconding accused Sanjay were caught hold the hands of Dnyaneshwar, accused No.3 Rajendra was holding knife in his hand. PW-7 further stated that accused Rajendra was behind Dnyaneshwar and knife was having blood. He deposed that accused No.2 Ganesh was having gupti in his hand and he stabbed his uncle Dnyaneshwar by gupti on his abdomen, chest and throat, and accused Rajendra Garad stabbed by knife from back side. This witness also stated that Ganesh was shouting that by killing Dnynaeshar (deceased) he would become the president of RPI. When this witness (PW-7) intervened the quarrel, at that time Ganesh stabbed him by gupti upon his abdomen and left shoulder. Considering the evidence of these two witnesses PW-6 an PW-7 it reveals that PW-6 reached the spot of incident after the assault and PW-7 Santosh was the victim of the assault and was present at the time of incident. Hence, there is direct and trustworthy evidence of PW-7 Santosh as to commission of an offence. PW-7 Santosh is the injured witness in the incident, who sustained injuries on his abdomen and left shoulder by gupti at the hands of accused Ganesh, and therefore his presence on the spot has been established by the prosecution. The evidence of PW-7 is cogent and reliable evidence and therefore, his evidence cannot be easily brushed aside. His solitary evidence can form basis for conviction.
26. As stated herein above, Dr. Saroj Khot (PW-8) conducted the post mortem of the dead body of Dnyaneshwar. Upon external examination she found 6 injuries which are ante mortem, and on internal examination she found blood in abdominal cavity, rupture of peritoneal at back side rupture of upper part of the spleen. According to the Medical offcer, the cause of death is due to shock and hemorrhage and due to stab injury to spleen organ. Dr. Anant Kulkarni (PW-9), on examination of injured Santosh Kambale (PW- 7), found two stabbed injuries on the abdomen and left shoulder of Santosh. Surgery was also done for the said injuries. The doctor PW-9 stated that the said injuries are grievous. If the deposition of PW[7] is read carefully in the light of evidence of PW[8] and medical papers, it can safely be gathered that evidence of PW[7] about the actual happening of incident gets corroboration from the medical evidence. PW[7] in his evidence has categorically stated about the assault by the accused Ganesh to Dnyaneshwar (deceased) and also about inficting serious injuries to him (PW[7]). There is complete corroboration to his version from the medical evidence.
27. It seems that the blood group of Dnyaneshwar was of ‘B’ group and the shirt of accused No.2 recovered at his behest was found with blood of B group as mentioned in CA report. It is also mentioned in the CA report that the gupti was found with human blood. In his statement recorded under Section 313, when a specifc question was put to him on CA report, the accused No.2 Ganesh did not give any explanation about the blood appearing upon the articles recovered from him.
28. In so far as accused No.1 Vijay and accused No.3 are concerned, though both the witnesses i.e. PW-6 nd PW-7 have deposed that accused No.1 and 3 were present on the spot, and accused No.1 was holding the hands of deceased and accused No.3 Rajendra stabbed the deceased from back side. However, there is no recovery from the accused no. 1 and 3. Both the witnesses have tried to implicate the accused No.1 and 3 in the alleged offence as they are brothers of accused No.2, however, there is no clinching and cogent evidence for reaching to the defnite conclusion of guilty of accused no. 1 and 3. Even there is no recovery from accused Nos.[1] and 3 as it has come in the evidence of PW-12 Rajendra Padwal that nothing was seized from accused Rajendra and Vijay during their PCR. It appears that except the aforesaid evidence collected by the prosecution, there is no other material evidence brought on record by the prosecution to connect the accused Nos.[1] and 3 to the crime.
29. The evidence led by the prosecution clearly shows the involvement of the accused No.2 Ganesh Garad in the crime. Apart from the evidence of eye witnesses there is medical evidence and also the gupti and clothes were recovered at the instance of the accused No.2 Ganesh. As already discussed PW-12 Rajendra Padwal stated that, an accused Ganesh Garad was having injury upon his left wrist, therefore, he was referred to medical treatment. This version is also corroborated by PW-11 Dr. Suhash Jadhavar stating that he found that, Ganesh Garad had sustained injuries upon dorsalrally near the wrist joint at forearm of the left hand. The age of the injury was more than 74 hours. The injury was healed. It’s was simple in nature. The accused No.2 gave him history of the injury that, same is due to knife. PW-11 issued medical certifcate (Exhibit-80). The explanation given by accused No.2 Ganesh regarding the injury sustained by him that this injury was caused while he was working in feld, appears to be concocted and not satisfactory.
30. In the light of discussion in foregoing paragraphs, the conclusion drown by the trial court that the prosecution proved its case against the accused No.2 and has failed to prove its case against the accused Nos.[1] and 3 is in consonance with the evidence brought on record. Admittedly, the deceased Dnyaneshwar narrated the story to PW-6 Sunil while deceased was carrying to hospital and thereafter Dnyaneshwar was declared dead in the hospital on the same day. The alleged motive about the dispute over the post of President of RPI of village Jeur in the between the deceased and Accused No.2 on the relevant time of incident is concerned, the prosecution has brought suffcient and satisfactory evidence on record in the form of PW-6 Sunil and PW-7 Santosh. Since there is direct evidence of injured witness PW[7], it may not be necessary to appreciate evidence in relation to motive in commission of offence.
31. Hence, the prosecution has proved its case by leading suffcient evidence against the accused No.2 Ganesh. The evidence on record is not suffcient to hold accused Nos.[1] and 3 guiilty for the offences alleged against them.
32. The authoritative pronouncements relied upon by the learned counsel appearing for the Appellant/accused No.2 Ganesh have no application in the facts and circumstances of the present case.
33. We have noticed that the Trial Court has meticulously dealt with the entire evidence of the prosecution and reached to a correct conclusion. The law is well settled that the view taken by the Trial Court thereby acquitting the accused cannot be lightly interfered into, unless the Appellate Court on re-appreciation of evidence comes to a conclusion that the fndings recorded by the Trial Court are perverse and the view taken was not plausible at all.
34. Upon careful perusal of the fndings recorded by the trial court, we are of the considered view that the Trial Court upon appreciation of the evidence on record has taken a plausible view and correctly recorded the fndings of conviction of accused no. 2 and acquittal of Respondent No. 1 and 2. In that view of the matter, no case is made out for interference in the impugned judgment and order. Both the Appeals i.e. Criminal Appeal No.478 of 2013 fled by Accused No.2 against his conviction, and Criminal Appeal No.839 of 2013 fled by the State against the acquittal of Accused Nos.[1] and 3 are devoid of any merit and the same are required to be dismissed. Hence the following order:- ORDER a) Criminal Appeal No.478 of 2013 fled by Accused No.2 against his conviction stands dismissed. b) Criminal Appeal No.839 of 2013 fled by the State against the acquittal of Accused Nos.[1] and 3 also stands dismissed. c) Bail bonds of the Accused, if any, stand cancelled. ( S. P. TAVADE, J.) (S. S. SHINDE, J.)