Bombay High Court
Rajendra Alias Raju Murlidhar Ghige vs The State Of Maharashtra on 3 January, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:161-DB
Cri.Appeal No.224/2017 with
Connected Appeals
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.224 OF 2017
Babu s/o Limbaji Kale
Age 32 years, Occu. Labour,
R/o Kumbhari, Tq. & Dist. Beed
At present Balaji Nagar,
Indrayani Chowk, MIDC, Bhosari,
Pune. ... APPELLANT
VERSUS
The State of Maharashtra
Through : Police Inspector,
Neknoor Police Station,
Tq. & dist. Beed
(Copy to be served on the
Public Prosecutor, High Court of
Bombay, Bench at Aurangabad) ... RESPONDENT
.......
Mr. S.P. Chate, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.767 OF 2018 WITH
CRIMINAL APPLICATION NO.422 OF 2024
Vinod s/o Madhukar Ghige
Age 28 years, Occu. Agriculture,
R/o Songaon, Tq. & Dist. Beed
At present Chakradhar Nagar,
Cri.Appeal No.224/2017 with
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Pangri Road, Beed,
Tq. & District Beed. ... APPELLANT
VERSUS
The State of Maharashtra
Through Police Station Officer,
Police Station, Neknoor,
Tq. & District Beed. ... RESPONDENT
.......
Mr. P.N. Muley, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.768 OF 2018 WITH
CRIMINAL APPLICATION NO.883 OF 2024
Rajendra Alias Raju Murlidhar Ghige
Age 42 years, Occu. Agriculturist
R/o Songaon, Tq. & Dist. Beed
Presently residing at Chakradhar Nagar,
Pangari Road, Beed, District Beed.
Maharashtra ... APPELLANT
VERSUS
The State of Maharashtra
Through the Station House Officer,
Police Station, Neknoor, Tal. & Dist. Beed
(Copy to be served on the Office of
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. A.D. Ostwal, Advocate for appellant
Cri.Appeal No.224/2017 with
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Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.769 OF 2018 WITH
CRIMINAL APPLICATION NO.882 OF 2024
Tuljiram Alias Bappa Ashok Vidyagar
Age 24 years, Occu. Labour,
R/o Kumbhari,
Presently residing at Ambika Chowk,
Shahunagar, Beed, Dist. Beed,
Maharashtra ... APPELLANT
VERSUS
The State of Maharashtra
Through the Station House Officer,
Police Station, Neknoor, Tal. & Dist. Beed
(Copy to be served on the Office of
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. A.D. Ostwal, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.770 OF 2018 WITH
CRIMINAL APPLICATION NO.884 OF 2024
Sudhakar Alias Pintu Bhagwan Bhalerao
Age 36 years, Occu. Labour,
R/o Kumbhari,
Presently residing at Ambika Chowk,
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Shahunagar, Beed, Dist. Beed,
Maharashtra ... APPELLANT
VERSUS
The State of Maharashtra
Through the Station House Officer,
Police Station, Neknoor, Tal. & Dist. Beed
(Copy to be served on the Office of
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. A.D. Ostwal, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for respondent
.......
WITH
CRIMINAL APPEAL NO.994 OF 2024
The State of Maharashtra, through
Police Station Officer, Police Station,
Neknoor, Tq. & Dist. Beed ... APPELLANT
VERSUS
1) Chandrasen Bhimrao Surwase,
Age 50 years, Occu. Agri.,
R/o Kumbhari, Tq. & Dist. Beed
2) Bhaskar alias Bandu Digambar Survase,
Age 38 years, Occu. & R/o as above.
3) Popat Manik Kokate, Age 49 years,
Occ. & R/o as above.
At present Shahunagar,
Pangari Road, Beed
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4) Prakash Manikrao Kokate,
Age 57 years, Occu. Service as
Driver, R/o as above.
5) Rajendra alias RajuMurlidhar Ghige,
Age 42 years, Occu. Agri.,
R/o Songaon, Tq. & Dist. Beed,
At present Chakradhar Nagar,
Pangari Road, Beed.
6) Vinod Madhukar Ghige,
Age 28 years, Occu. &r/o as above.
7) Tulshiram alias Bappa Ashok Vidyagar,
Age 24 years, Occu. Labour,
R/o Kumbhari, At present Ambika Chowk,
Shahunagar, Beed.
8) Babu Limbaji Kale,
Age 29 years, Occu. Labour,
R/o Kumbhari, at present
Balaji Nagar, Indrayani Chowk,
MIDC Bhosari, Pune
9) Prashant alias Sugriv Bajirao Survase,
Age 40 years, Occu. Agri.,
R/o Kumbhari, Tq. & Dist. Beed
10) Sudhakar alias Pintu Bhagwan Bhalerao,
Age 36 years, Occu. Labour,
R/o Kumbhari, at present Ambika Chowk,
Shahu Nagar, Beed
11) Satish Rajesaheb Survase,
Age 50 years, Occu. Agri.,
R/o Kumbhari, Tq. & Dist. Beed
12) Mahadeo alias Sachin Baban alias
Babruwan Survase,
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Age 27 years, Occu. & R/o as above
13) Sunil Gangaram Survase,
Age 28 years, Occu. & R/o as above-mentioned
14) Nandkumar alias Balu Madhukar Survase,
Age 40 years, Occu. & r/o as above.
15) Kishor alias Pappu Madhukar Survase,
Age 36 years, Occu. & r/o as above.
16) Hanumant alias Balu Vyankatrao Survase,
Age 37 years, Occu. & r/o as above
... RESPONDENTS
.......
Mr. S.D. Ghayal, A.P.P. for appellant - State
Mr. M.B. Ubale, Advocate for Respondent Nos.1 to 4
Mr. A.D. Ostwal, Advocate for Respondent Nos.5, 7 and 10
Mr. P.N. Muley, Advocate for Respondent No.6.
Mr. S.P. Chate, Advocate for Respondent No.8
Mr. N.B. Jadhav, Advocate for Respondent Nos., 11 to 16
.......
WITH
CRIMINAL APPEAL NO.1040 OF 2024
Bhausaheb s/o Limbaji Surwase,
Age 49 years, Occu. Agri.,
R/o Kumbhari, Post Neknoor,
Tq. Dist. Beed. ... APPELLANT
VERSUS
1) State of Maharashtra
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad)
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2) Chandrasen s/o Bhimrao Surwase,
Age 50 years, Occu. Agri.,
R/o Kumbhari, Tq. & Dist. Beed.
3) Bhaskar @ Bandu s/o Digambar Surwase,
Age 38 years, Occu. Agri.
R/o Kumbhari, Tq. & Dist. Beed.
4) Popat s/o Manik Kokate,
Age 49 years, Occu. Agri.
R/o Kumbhari, Tq. & Dist. Beed.
At present Shahu Nagar,
Pangri Road, Beed, Dist. Beed
5) Prakash s/o Manikrao Kokate,
Age 57 years, Occ. Agri.
R/o as above.
6) Prashant @ Sugriv s/o Bajirao Surwase,
Age 40 years, Occu. Agri.
7) Satish s/o Rajesaheb Surwase,
Age 50 years, Occu. Agri.
8) Mahadeo @ Sachin Baban @ Babruwan Surwase,
Age 27 years, Occu. Agri.
9) Sunil s/o Gangaram Surwase,
Age 28 years, Occu. Agri.
10) Nandkumar @ Balu Madhukar Surwase,
Age 40 years, Occu. Agri.
11) Kishor @ Pappu Madhukar Surwase,
Age 36 years, Occu. Agri.
12) Hanumant @ Balu Vyankatrao Surwase,
Age 37 years, Occu. Agri.
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No. 6 to 12 All R/o Kumbhari,
Tq. & Dist. Beed
13) Rajendra @ Raju Murlidhar Ghige,
Age 42 years, Occu. Agri.
R/o Songaon, Tq. Dist. Beed.
Through Jail
14) Vinod s/o Madhukar Ghige,
Age 28 years, Occu. Agri.
R/o Songaon, Tq. Dist. Beed,
Through Jail.
15) Tuljiram @ Bappa s/o Ashok Vidyagar,
Age 24 years, Occu. Labour,
R/o Kumbhari, Tq. Dist. Beed
Through Jail
16) Babu s/o Limba Kale
Age 39 years, Occu. Labour
R/o Kumbhari, Tq. Dist. Beed
Through Jail
17) Sudhakar @ Pintu s/o Bhagwan Bhalerao,
Age 36 yerars, Occu.
R/o Kumbhari, Tq. Dist. Beed
Through Jail
(R.No.2 to 5 Orig. Accused No.1 to 4
R.6 Orig. Accused No.9, R.7 to 12
Orig. Accused No.11 to 16, R.13 to 16
Orig. accused No.5 to 8 & R.No.17 is
original accused No.10)
... RESPONDENTS
.......
Mr. G.K. Naik Thigle, Advocate for appellant
Mr. S.D. Ghayal, A.P.P. for appellant - State
Mr. B.B. More, Advocate for Respondent Nos.2 to 5
Mr. N.B. Jadhav, Advocate for Respondent Nos.6 to 12
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Mr. A.D. Ostwal, Advocate for Respondent Nos.13, 15 & 17
Mr. P.N. Muley, Advocate for Respondent No.14.
Mr. S.P. Chate, Advocate for Respondent No.16
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 17th December, 2024
Date of pronouncing judgment : 3rd January, 2025
JUDGMENT (PER : R.G. AVACHAT, J.) :
This group of 11 Appeals is taken up together for
decision since the challenge therein is to one and the same
judgment and order dated 10/4/2017, passed by Additional
Sessions Judge, Beed (Trial Court) in Sessions Case,
No.94/2013. 16 accused persons were put on trial in the said
Sessions Case. Vide impugned judgment and order, 5 of them
(original accused Nos.5 to 8 and 10) were convicted while the
rest of the accused have been acquitted. Relevant part of the
operative order under challenge in these appeals is
reproduced below :-
01. Accused No. 5 Rajendra alias Raju Murlidhar
Ghige, accused No. 6 Vinod Madhukar Ghige,
accused No.7 Tuljiram alias Bappa Ashok
Vidyagar, accused No.8 Babu Limbaji Kale and
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accused No.10 Sudhakar alias Pintu Bhagwan
Bhalerao are convicted vide Sec. 235(2) of Code
of Criminal Procedure for the offencepunishable
under Sec. 302 r/w. 149 of IPC and sentenced
each of them to life imprisonment and to pay fine
of Rs.2,000/ each in default to suffer further RI
for three months.
02. Since the accused No. 5,6,7,8 and 10 have been
convicted and punished for the major offence
under Sec. 302 r/w. 149 of IPC, no separate
sentence is passed for committing offences under
Sec. 147 and 148 of IPC.
03. Accused No.5, 6, 7, 8 and 10 are entitled for set
off under Sec. 428 of CRPC for predetention
period i.e. from 6.4.2013 till today.
04. Accused No.5, 6, 7, 8 and 10 are hereby acquitted
vide Sec.235(1) of Cr.P.C. for committing offence
punishable under Sec. 307 r/w. 149 of IPC,
120B of IPC and under Sec.25(1) of the Arms
Act.
05. Accused No.1 Chandrasen Survase, accused No.2
Bhaskar alias Digambar Survase, accused No.3
Popat Kokate, accused No.4 Prakash Kokate,
accused No. 9 Prashant alias Sugriv Survase,
accused No.11 Satish Rajesaheb Survase, accused
No. 12 Mahadeo alias Sachin Survase, accused
No.13 Sunil Survase, accused No. 14 Nandkumar
Survase, accused No.5 Kishor alias Pappu
Survase and accused No.16 Hanumant alias Balu
Survase are hereby acquitted vide Sec.235(1) of
Cr.P.C. for committing offence punishable under
Sec. 120B of IPC.
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2. Criminal Appeals No.224/2017, 767/2018,
768/2018, 769/2018 and 770/2018 have been preferred by the
convicts. The State was granted leave to appeal against
acquittal. It is the Criminal Appeal No.994/2024. The original
complainant Bhausaheb Limbaji Surwase, brother of the
deceased preferred appeal against acquittal (Criminal Appeal
No.1040/2024).
3. For the sake of convenience, the appellants/
convicts are referred to as per their serial numbers in the
Charge (Exh.52).
4. The case of the prosecution, in brief, was as
follows:-
The First Information Report (F.I.R. – Exh.129) was
lodged by P.W.13 Vinod by 10.45 p.m. on 20/3/2013. Vinod is
the son-in-law of real brother of Uddhav Limbaji Surwase
(deceased). In the year 2012, Gram Panchayat elections of
the village Kumbhari were held. All the seats were won by the
panel headed by Uddhav (deceased).
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On 20 March 2013, Vinod went to the petrol pump
of Uddhav. Both of them then went to Beed. They did their
official works at the offices of Public Works Department and
Zilla Parishad as well. Uddhav parked his motorbike at the
house of one of his relations. Both Vinod and Uddhav started
from Beed to Neknoor on the motorbike of Vinod. Vinod was
riding the same. Uddhav was riding pillion. They reached
near Gawari Pati by 5.45 p.m. A white Indigo Car approaching
from behind knocked down their motorbike. As a result, both
Vinod and Uddhav fell off the motorbike, away from each other.
3/4 persons alighted the car. They were armed with Kattis
(instrument of harvesting sugarcane) like weapon and sword
as well. They rained blows on the person of Uddhav with
those weapons. The assailants were stated to be in the age
group of 35-40 years. It was alleged in the F.I.R. that the
assault was made in pursuance of a conspiracy hatched by
Chadrasen Surwase, Popat Kokate, Prakash Kokate, Bhaskar
Surwase and others.
5. Based on the F.I.R. (Exh.129), a crime vide C.R.
No.34/2013 was registered at Neknoor Police Station for the
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offences punishable under Sections 302, 307, 120-B read with
Section 34 of the Indian Penal Code, since Uddhav had
succumbed to the injuries.
6. During the investigation, it was found that there
was a larger conspiracy to eliminate Uddhav. The main motive
was said to be victory of his panel in Panchayat elections of
the Village Kumbhari. Some other motives have also been
attributed.
7. During the investigation, a crime scene
panchanama (Exh.72) was drawn. Inquest (Exh.74) and
autopsy (Exh.151) on the mortal remains of Uddhav were
conducted. P.W.13 Vinod was admitted to the hospital. His
injury certificate was obtained. Clothes of both Vinod and the
deceased were seized. It was found that the incident was
witnessed by two more persons namely P.W.14 Sandipan and
one Shri Karande Sir (not examined). Their statements were
recorded. The appellants and the respondents came to be
arrested one after the other. On arrest of the assailants/
appellants, a test identification parade was held. Statements
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of persons acquainted with the facts and circumstances of the
case were recorded. All the seized articles were forwarded to
the Regional Forensic Laboratory, Aurangabad. Upon
completion of the investigation, a charge sheet was filed
against the appellants and the respondents in these appeals.
8. The Trial Court framed the Charge (Exh.52). The
appellants and the respondents pleaded not guilty. Their
defence was of false implication. According to them, the
deceased had very many enemies. There was dispute
between him on one hand and his neighbouring landholders
over a right of way.
9. The prosecution, to bring home the charge,
examined 34 witnesses. The defence examined 2 witnesses.
Some documents were also produced in evidence by the
prosecution. On appreciation of the evidence in the case, the
Trial Court passed the order impugned herein (referred
hereinbove).
10. Heard. Learned Advocates representing the
appellants would submit that, the case had political overtures.
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The deceased was a follower of the head of Shiv Sangram
Sanghatana. The head of the Sanghatana was a Sitting
M.L.A. Although the incident was said to have taken place by
5.45 p.m., the F.I.R. was lodged after 5 hours of the incident.
The F.I.R. was the outcome of deliberation. The informant in
fact suffered a minor injury. He could have been treated at
OPD. There was no reason for him to have himself admitted
to the hospital for 2 days. Our attention was drawn to certain
medical papers to indicate that, in spite of his alleged
admission to the hospital soon after the incident, no Medico
Legal Case was made. The Police Outpost on the premises of
Civil Hospital, Beed was even not informed. The learned
Advocate meant to say that the police machinery consciously
gave time to the informant and his colleagues to think over,
deliberate and lodge a concocted F.I.R. According to the
learned Advocate, the supplementary statement of the
informant was recorded very late. Moreover, his statement
under Section 164 of the Cr.P.C. was recorded even thereafter.
Same is the case about the so called eye witness (P.W.14)
Sandipan. According to learned Advocate, all the witnesses
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examined by the prosecution were either close relations of the
deceased or his friends. No independent witness from the
vicinity of the crime scene was examined. The crime scene
panchanama was drawn on the following day. No explanation
for delay has been offered. The so called eye witness namely
Shri Karande Sir has not been examined. The same caused
prejudice to the appellants in their defence. A written notes of
submissions/ arguments along with a host of authorities (21 in
number) have been placed on record :-
1) Budhsen & anr. Vs. State of U.P. [1970(2) SCC 128 ]
2) Selveraj Vs. The State of Tamil Nadu [(1976) 4 SCC 34 ]
3) Ganesh Bhavan Patel & anr. Vs. State of Maharashtra
(1978) 4 SCC 371
4) Awadhesh & anr. Vs. State of Madhya Pradesh
(1988) 2 SCC 557
5) State of Andhra Pradesh Vs. Dr. M.V. Ramana Reddy & ors.
(1991) 4 SCC 536
6) Rajesh Govind Jagesha Vs. State of Maharashtra
(1999) 8 SCC 428
7) Rajeevan & anr. Vs. State of Kerala [(2003) 3 SCC 355 ]
8) Badam Singh Vs. State of M.P. [(2003) 12 SCC 792 ]
9) Shankarlal Vs. State of Rajasthan [ (2004) 10 SCC 632 ]
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10) Ravi alias Ravichandran Vs. State represented by Inspector of
Police [ (2007) 15 SCC 372 ]
11) Deny Bora Vs. State of Assam [ (2014) 14 SCC 22 ]
12) Naseem Khan alias Laddu Vs. State of Maharashtra
2016 SCC OnLine Bom 5480
13) Harbeer Singh Vs. Sheeshpal & ors. [ (2016) 16 SCC 418 ]
14) Reena Hazarika Vs. State of Assam [ (2019) 13 SCC 289 ]
15) Amar Singh Vs. State (NCT of Delhi) [ (2020) 19 SCC 165 ]
16) Subramanya Vs. State of Karnataka [ (2023) 11 SCC 255 ]
17) Gireesan Nair & ors. Vs. State of Kerala [ (2023) 1 SCC 180 ]
18) Babu Sahebagouda Rudragoudar & ors. Vs. State of
Karnataka [ (2024) 8 SCC 149 ]
19) Nilesh Laxmikant Vyas Vs. State of Maharashtra & anr.
2024 SCC OnLine Bom 1204
20) Digambar & anr. Vs. State of Maharashtra
2024 SCC OnLine Bom 2664
21) Chandrakant Ananda Barfe & anr. Vs. State of Maharashtra
2024 SCC OnLine Bom 3018
11. The learned Advocate would further submit that,
the test identification parade was held belatedly. The convicts
were not kept in veil on their arrest until the test identification
parade was held. The Superintendent of Police held a Press
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Conference on the next day of the incident. Names of the
alleged suspects along with their photographs were published
in the local dailies. All the canons of holding a valid test
identification parade were thrown to wind by the Executive
Magistrate who conducted the same. The informant had not
given description of the assailants. One and the same set of
dummies were there for three rounds of test identification
parade held for identification of the appellants separately. The
so called dummies were not of the complexion, height and
description in all respects including the age were (compatible)
with the suspects. A host of authorities have been relied on so
as to urge for discarding such test identification parade and
evidence in relation thereto.
12. On the question of recovery of Kattis pursuant to a
disclosure statement made by the appellants Sudhakar
Bhalerao (original accused No.10), the learned advocate would
submit that, it was an open place. The photographs of the so
called disclosure statement and recovery pursuant thereto
were digitally snapped. Although the photographer was
examined in proof of the photographs, no certificate under
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Section 65-B of the Evidence Act was produced since the
photographs were obtained from the camera in the CD, and
then in a pen drive for being produced as evidence before the
Court. The learned Advocate would further submit that, the
Medical Officer did not give the exact time of death of the
deceased. Instead of reiterating the submissions made by the
learned Advocate, we would prefer to deal with the same while
appreciating the evidence in the case.
13. So far as regards reliance on the 21 authorities
relied on are concerned, we have closely perused the same.
Needless to mention, the Head Notes of most of the cases
indicate that the observations made therein were based on the
facts and circumstances therein. It is reiterated that, there can
hardly be a precedent to be relied on for deciding a criminal
case since no two cases are similar in facts. A difference of a
fact herein and there makes all the difference. With all humility
at our command, the authorities relied and the propositions
therein are on our mind while deciding the present appeals.
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14. The learned A.P.P. would, on the other hand,
submit that, the case was based on eye witness account. One
of them was an injured eye witness. Evidence of an injured
eye witness carries more weight. The witnesses have no
reason to falsely implicate the appellants and the respondents,
leaving the actual culprits. According to learned A.P.P., the
suggestions given to the prosecution witnesses indicate
admission as to presence of the eye witness at the crime
scene. He relied on the following two authorities :-
(1) Balu Sudam Khalde & anr. Vs. The State of Maharashtra
2023 LiveLaw (SC) 279(2) Birbal Nath Vs. The State of Rajasthan & ors.
(Criminal Appeal No.1587/2008, decided on 30/10/2023)
15. According to learned A.P.P., no two persons could
have a photographic memory. Reaction of every person to one
and the same incident may differ in very many respects. The
evidence of the eye witnesses are consistent in material
particulars. He, therefore, urged for dismissal of the appeals
against conviction and urged for allowing the appeal against
acquittal.
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16. The learned Advocate for the victim made
submissions on the lines of the submissions made by the
learned A.P.P. He took us through certain observations made
by the Trial Court. According to him, it was a brutal murder.
The theory of conspiracy too has been duly proved.
17. Let us now turn to the evidence on record and
appreciate the same.
The incident took place by little past 5.30 p.m. at
Gawari Pati. Uddhav Surwase suffered 22 injuries. Most of
them were incised wounds. The same indicates the assailants
to have used sharp weapons. The number of injuries suggest
that the assailants must be more than one. P.W.24 Dr.
Upendra conducted autopsy on the mortal remains of Uddhav.
In his opinion, Uddhav died of haemorrhagic shock due to
bleeding due to multiple injuries in the neck organs and major
vessels. The post mortem report finds place at Exh.151. True,
neither the post mortem report nor the oral evidence of P.W.24
suggests the exact time of death. The fact, however, remains
that, Uddhav was rushed to the Civil Hospital, Beed. The
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distance between the crime scene and Beed was about 25
Kms. We have no reason to doubt the oral evidence of the
informant, victim and the witness that soon after the incident
both of them were rushed to the Civil Hospital and admitted
thereto.
18. Uddhav Surwase met with homicidal death is a fact
not in dispute before us. The question is, whether the crime is
committed by the appellants and respondents pursuant to a
conspiracy hatched in that regard. According to the
prosecution, the assailants were Rajendra Ghige and
Sudhakar Bhalerao (original accused Nos.5 and 10).
19. P.W.13 Vinod is an injured eye witness. He
testified that, deceased Uddahv was his cousin father-in-law.
On the given day i.e. on 20/3/2012, he had been to Beed along
with Uddhav. After having completed their works, they were on
their way back to Neknoor on his (P.W.13) motorbike. While
they were near Gawari Pati on Manjarsumba to Neknoor Road,
a white car came from behind and dashed his motorbike. As a
result of the dash, both of them fell off the motorbike. He got
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frightened. He witnessed two persons were assaulting Uddhav
with Kattis. Third one was standing with a Khanjar and the
other was having a packet containing chilly powder. These last
two persons were facilitating the assault. Meaning thereby,
they were guarding the assailants if anyone intervenes.
P.W.13 further testified that the driver of the car took it ahead
and then turned the car suggesting blocking of their way. He
further testified that, appellant Sudhakar Bhalerao said,
“Chandrasen Surwase and Popat Kokate be informed that
as decided Uddhav is finished”. He further testified that the
said persons then boarded the car. The car proceeded
towards Manjarsumba. The evidence of P.W.13 Vinod further
indicates that Karande Sir and Sandipan Ghallal (P.W.14) had
witnessed the incident. Both of them were passing by on their
respective motorbikes. Karande Sir informed him that he was
not keeping well. He (P.W.13), therefore, made a phone call to
Neknoor Police Station. 10-15 persons had gathered on the
spot. In the meanwhile, jeep of Uddhav Surwase arrived.
They took Uddhav to Civil Hospital, Beed. He too (P.W.13)
had suffered injuries to his hand and blunt trauma as well. He
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too was admitted to the hospital. Uddhav breathed his last.
P.W.13 went on to state that, he was indoor patient for 2-3
days. The police had come to the hospital. The police
recorded his statement-cum-F.I.R. (Exh.129) in the hospital.
He referred to the same.
20. P.W.13 Vinod went on to state that, after his
discharge from the hospital, he had been to the Central Prison
for test identification parade. He identified the assailants,
those two others and the driver of the car as well. In the first
round of the test identification parade, he identified the
assailants, Rajendra Ghige and Sudhakar Bhalerao (original
accused Nos.5 and 10). P.W.13 then referred to his statement
recorded under Section 164 of the Cr.P.C.
21. He was subjected to a searching cross-
examination by different Advocates representing their
respective clients/ appellants/ respondents. It was suggested
to him that, he suffered injury to his hand on account of a fall
from motorbike. He explained that he gave the history of
‘assault’ since the car had knocked down them and thereafter
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the assault was mounted. According to him, the incident lasted
for 4-5 minutes. He admitted that his relations had come to the
hospital to see him. He was then shifted to Ward No.5. He
admitted to have had not stated to the police that the assault
was made with sword. His attention was, therefore, adverted
to the F.I.R. and particularly the word ‘sword’. Then he was
further confronted with the F.I.R. which was silent to record
that, “Chandrasen Surwase and Popat Kokate be informed
that as decided Uddhav Surwase is finished”. He then
testified that he did not run away from the spot. His attention
was, therefore, drawn to his supplementary statement, wherein
such sentence has been recorded. He could not state who
admitted him to the hospital. He denied that he left the
hospital against medical advice, but it was suggested to him
that he left the hospital for attending funeral and then returned
to the hospital as an indoor patient. He was also confronted to
bring on record that the F.I.R. is silent to record therein that
P.W.14 Sandipan and Karande Sir had witnessed the incident.
The tenor of further cross-examination indicate that the
appellants and the respondents were followers of late Vinayak
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Mete, the then Head of Shiv Sangram Party. He denied to
have had worked as a P.A. of late Vinayak Mete. A reference
to a murder case that dates back to 1994 was made in his
cross-examination so as to indicate a motive to eliminate
Uddhav. The said suggestion indicates that none of the parties
to these appeals were privy to the said incident of murder of
one Mahaveer Surwase. In short, according to the defence,
the incident might have been a fall out of the murder that took
place way back in 1994. Some other motives have also been
sought to be brought on record through the evidence of the
real brother of the deceased. Without referring thereto, we are
of the view that the appellants could not make out their
defence of some other motive behind the incident for
commission of the crime by someone else. Needless to
mention, in a case based on direct evidence, motive plays
insignificant role.
22. The fact is that, a few months before the incident,
Village Panchayat elections were held. A panel set up by
deceased Uddhav won all the seats. The appellants and the
respondents belonged to other side. It is true that,
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investigating machinery did not place on record station diary
entry relating to the phone call made by P.W.13 regarding the
incident. The appellants have, therefore, every reason to
contend that the informant and his colleagues had
deliberations and the F.I.R. was the outcome thereof.
Needless to mention that the informant did not name the
names of the assailants in the F.I.R. As such, the F.I.R. was
lodged as against unknown assailants. Those who have been
named in the F.I.R. were said to have got Uddhav killed in
pursuance of a larger conspiracy. We have, therefore, no
reason not to rely on the testimony of P.W.13 who himself had
suffered injury in the incident. The motorbike that was
knocked down by the white car belonged to P.W.13. It is,
therefore, but natural for us to infer that it was he and none
else who was riding the motorbike and the deceased was
riding pillion. The assailants had an intention to kill Uddhav
and not the informant. The informant was therefore spared.
True, the informant in his statement under Section 164 of
Cr.P.C. stated that he ran away in the field, but it was after
having witnessed the incident.
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23. Then our attention was adverted to the documents
(Exhs.184 and 185). Exh.184 is the injury certificate of P.W.13.
The same indicates that he suffered C.L.W. over his left
forearm. The nature of injury was simple and the age was
within 24 hours. There was a remark in the last column that
the patient absconded on 22/3/2012 from the ward. It was
P.W.30 Dr. Minakshi who had attended to P.W.13 in the
hospital. She was not confronted with the said remark.
Instead, it was shown to the investigating officer. The author of
the said document is P.W.30 Dr. Meenakshi to whom it should
have been confronted. It is true that, the certificate was issued
on 4/7/2013 i.e. long after the incident. The learned Advocate
representing the assailants Rajendra Ghige and Sudhakar
Bhalerao (original accused Nos.5 and 10), however, suggested
P.W.13 Vinod that the injury certificate (Exh.184) was issued
on the basis of original medical record. The said suggestion
helps the prosecution a lot. P.W.30 Dr. Meenakshi being an
independent witness and there being nothing to indicate that
she had any reason to fabricate false medical papers putting
her service at risk. It is reiterated that, the injury certificate was
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admitted to have been issued on the basis of the entries in the
original record/ case papers.
24. Then our attention was adverted to Exhs.185 and
186. Both these documents were in the nature of information
to the Police Station, Beed regarding admission of P.W.13
Vinod and deceased Uddhav to the hospital. The document
was referred by the defence itself. Perusal of those
documents indicates that the intimation was given on the very
day with a history of assault. The timing of admission of both
of them to the hospital was 6.45 p.m. Both these documents
came into being in the official course of business. It is true that
the Medical Officer on duty appears to have not reported the
matter to the Police Outpost located on the premises of the
Civil Hospital itself as a Medico Legal Case. The appellants
had examined D.W.2 Shankar Rathod, Police Constable
attached to the said Outpost. According to him, he was not on
duty at the relevant time. The fact remains that, the Medical
Officer reported admission of both P.W.13 Vinod and deceased
Uddhav to the hospital, directly to the Beed Police Station.
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25. The test identification parade was held by the
Executive Magistrate (P.W.31) Abhay Maske on 12/4/2013 i.e.
about 23 days after the incident. He was examined as a
witness in the case. His evidence indicates that the same set
of dummy persons were used for three rounds of test
identification parade. On this ground alone, the subsequent
two rounds of test identification parade got vitiated. More so,
when it was only P.W.13 Vinod who was to identify the culprits.
The same suggests that he knew after the first round that the
same dummy to whom he did not identify the assailants were
there in the subsequent two test identification parade rounds.
In the first round he identified both the assailants. Rajendra
Ghige and Sudhakar Bhalerao (original accused Nos.5 and
10).
26. P.W.34 Abhay Dongare, the investigating officer in
his cross-examination admitted that on the next day of the
incident, the Superintendent of Police had held Press
Conference. It was informed that 4 suspects were held. He
went on to admit that, the photographs of the arrestees were
published in the next day dailies with their names. There is
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also no evidence to indicate that the dummies were of the
same age group and somewhat similar in appearance, height
etc. to those to be identified in the test identification parade.
We have perused the judgments of the Apex Court in case of
Budhsen, Ramana Reddy, Rajesh Jagesha, Ravi @
Ravichandran etc., relied on in relation to discarding of test
identification parade evidence.
27. In case of Munna Kumar Vs. State of Andhra
Pradesh (AIR 2012 SC 2470), it was held that, even test
identification parade was held long after photographs of the
accused were published, veracity of the test identification
parade did not stand impaired. In paragraph 46 of the
judgment, the Apex Court held :
“46. However, we hasten to clarify that it is always
appropriate for the investigating agency to hold
identification parade at the earliest, in accordance
with law, so that the accused does not face prejudice
on that count. We may refer to the judgment of this
Court in a more recent judgment in the case of
Sidhartha Vashisht alias Manu Sharma Vs. State
(NCT of Delhi) [(2010) 6 SCC 1] : (AIR 2010 SC
2352 : 2010 AIR SCW 4302), where law in relation
to purpose of holding an identification parade, the
effect of delay and its evidentiary value were
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discussed. The Court held as under (Paras 115 and
117 of AIR, AIR SCW) :-
“256. The law as it stands today is set out in the
following decisions of this Court which are
reproduced as hereinunder:
Munshi Singh Gautam v. State of M.P.: (AIR
2005 SC 402 : 2004 AIR SCW 6537) : SCC pp.
642-45, paras 16-17 & 19)
“16. As was observed by this Court in Matru v.
State of U.P. (AIR 1971 SC 1050) identification
tests do not constitute substantive evidence. They
are primarily meant for the purpose of helping
the investigating agency with an assurance that
their progress with the investigation into the
offence is proceeding on the right lines. The
identification can only be used as corroborative
of the statement in court. (See Santokh Singh v.
Izhar Hussain. (AIR 1973 SC 2190). The
necessity for holding an identification parade can
arise only when the accused are not previously
known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim
to have seen the culprits at the time of
occurrence are to identify them from the midst of
other persons without any aid or any other
source. The test is done to check upon their
veracity. In other words, the main object of
holding an identification parade, during the
investigation stage, is to test the memory of the
witnesses based upon first impression and also to
enable the prosecution to decide whether all or
any of them could be cited as eyewitnesses of the
crime. The identification proceedings are in the
nature of tests and significantly, therefore, there
is no provision for it in the Code and the
Evidence Act. It is desirable that a test
identification parade should be conducted as
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soon as after the arrest of the accused. This
becomes necessary to eliminate the possibility of
the accused being shown to the witnesses prior to
the test identification parade. This is a very
common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that
there is no scope for making such an allegation.
If, however, circumstances are beyond control
and there is some delay, it cannot be said to be
fatal to the prosecution.
17. It is trite to say that the substantive
evidence is the evidence of identification in
court. Apart from the clear provisions of Section
9 of the Evidence Act, the position in law is well
settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused
persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in
court. The evidence of mere identification of the
accused person at the trial for the first time is
from its very nature inherently of a weak
character. The purpose of a prior test
identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is,
accordingly, considered a safe rule of prudence
to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the
form of earlier identification proceedings. This
rule of prudence, however, is subject to
exceptions, when, for example, the court is
impressed by a particular witness on whose
testimony it can safely rely, without such or other
corroboration. The identification parades belong
to the stage of investigation, and there is no
provision in the Code which obliges the
investigating agency to hold or confers a right
upon the accused to claim a test identification
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parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code. Failure to
hold a test identification parade would not make
inadmissible the evidence of identification in
court. The weight to be attached to such
identification should be a matter for the courts of
fact. In appropriate cases it may accept the
evidence of identification even without insisting
on corroboration. (See Kanta Prashad v. Delhi
Admn. (AIR 1958 SC 350), Vaikuntam
Chandrappa v. State of A.P. (AIR 1960 SC
1340), Budhsen v. State of U.P. (AIR 1970 SC
1321) and Rameshwar Singh v. State of J&K.
(AIR 1972 SC 102).
19. In Harbajan Singh v. State of J & K, (AIR
1975 SC 1814), though a test identification
parade was not held, this Court upheld the
conviction on the basis of the identification in
court corroborated by other circumstantial
evidence. In that case it was found that the
appellant and one Gurmukh Singh were absent at
the time of roll call and when they were arrested
on the night of 16-12-1971 their rifles smelt of
fresh gunpowder and that the empty cartridge
case which was found at the scene of offence
bore distinctive markings showing that the bullet
which killed the deceased was fired from the
rifle of the appellant. Noticing these
circumstances this Court held: (SCC p. 481, para
4)
‘4. In view of this corroborative evidence we
find no substance in the argument urged on
behalf of the appellant that the investigating
officer ought to have held an identification
parade and that the failure of Munshi Ram to
mention the names of the two accused to the
neighbours who came to the scene
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immediately after the occurrence shows that
his story cannot be true. As observed by this
Court in Jadunath Singh v. State of U.P. (air
1971 sc 363)absence of test identification is
not necessarily fatal. The fact that Munshi
Ram did not disclose the names of the two
accused to the villagers only shows that the
accused were not previously known to him
and the story that the accused referred to
each other by their respective names during
the course of the incident contains an
element of exaggeration. The case does not
rest on the evidence of Munshi Ram alone
and the corroborative circumstances to
which we have referred to above lend
enough assurance to the implication of the
appellant.”
28. Since P.W.13 Vinod did not give the description of
the appellants/ assailants and two others in the F.I.R., besides
the delay in test identification parade with manifest errors in
holding the same, we propose to discard the evidence of
P.W.13 Vinod so far as regards the identification of the
appellant by him before the Court for the first time. The matter
however, does not rest at that.
29. As stated earlier, the case is based on eye witness
account. He is none other than P.W.14 Sandipan. True, he is
cousin of the deceased (son of maternal uncle). His conduct
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post incident also appeared somewhat unnatural. The fact is,
however, that, his presence at or around the crime scene has
been impliedly admitted by the appellants during his cross-
examination. His police statement too was recorded before 24
hours of the incident.
30. P.W.14 Sandipan testified that he had been to Beed
on 20/3/2013. He was on his way back towards Neknoor. He
was riding the motorbike. He happened to meet both, P.W.13
Vinod and deceased Uddhav, who were proceeding in the
same direction on another motorbike. According to him,
Uddhav was riding pillion. P.W.14 Sandipan went on to testify
that, on the way, just before Gawari Pati was approached, a
white Indigo car gave dash to the motorbike from behind. As a
result thereof, both Vinod and Uddhav fell off. He thought that
it was a vehicular accident. He further testified that, Sudhakar
and Tuljiram (appellant – original accused Nos.10 and 7
respectively) alighted from the car. They were armed with
Kattis. Both of them assaulted Uddhav with Kattis. He went on
to state further that the appellant Vinod was standing with a
dagger in his hand and appellant Rajendra was armed with a
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packet of chilly powder. He further testified that, when the
vehicle took turn, he saw appellant Babu Kale was at the
driver’s seat of the car. He claimed to have seen even the
number plate in broken condition. He gave the number of the
car MH-14-CH-172. He further testified that, Karande Sir also
arrived there. All of them lifted Uddhav and took him to Civil
Hospital, Beed. On having seen the incident, he was
frightened. He required medical attention to himself. He,
therefore, went to a private hospital at Neknoor. Later on he
learnt Uddhav to have passed away. He further testified that,
on the following day, he on his own went to the Police and
gave his statement.
31. During his cross-examination on behalf of original
accused Nos.1 to 4, it was suggested to him, “It is correct to
say that, when the Car had given dash to the motorcycle of
Vinod Kawade, I reached the spot on my motorcycle”. It is true
that, I was going towards eastern side of the road, therefore, I
parked my motorcycle on left side of the road near the spot.”
According to him, Vinod did not run away in the field from the
spot. He was therefore confronted with his police statement,
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wherein such matter finds place. It was further suggested to
him, “It would be correct that as soon as I reached the spot on
motorcycle, immediately Karade Sir came on his motorcycle.”
There was no discussion amongst himself, Vinod and Karande
Sir about the assailants. The witness volunteered that he was
frightened. It was further suggested, “It will be correct to say
that, the assailants had whisked away from the spot within 3 to
4 minutes after the incident.” He did not disclose the names of
the appellants. He further testified that he had been to Civil
Hospital while in his examination-in-chief he testified that he
directly went to a private clinic.
32. The learned Advocate representing the appellants/
assailants Rajendra Ghige and Sudhakar Bhalerao (original
accused Nos.5 and 10) in the cross-examination of this
witness, suggested to him that, “It will be correct to say that I
was knowing Sudhakar Bhalerao as resident of village
Kumbhari prior to the incident. Till today I have no enmity or
dispute with Sudhakar Bjhalerao. I was on talking terms with
Sudhakar Bhalerao before the incident. Before 15 to 20 days
of the incident I had seen Sudhakar Bhalerao in a field. It is
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correct to say that at the time of incident Sudhakar Bhalerao
did not assault me, abused me or threatened me because I
have no enmity with him. Immediately after the assault, the
assailants left the place of incident. When the assailants left
the place of incident, I, Vinod Kawade and Karande Sir were
present there. The assailants did not do anything to Vinod
Kawade and Karande Sir.” The further suggestion merits
reproduction. The suggestion was to the effect “It will be
correct to say that when Vinod Kawade and Uddhav Survase
had overtaken my motorcycle, it was our first meeting on that
day.” The aforesaid suggestion amounts to implied admission
of about P.W.13 Vinod and the deceased having been
together. They met P.W.14 Sandipan. Karande Sir was also
on his motorbike. He too met them. Appellant Sudhakar did
not assault him (P.W.14) as he had no enmity with him. This
goes a long way to infer that the assailants’ target was Uddhav
(deceased) and none else.
33. Although this witness had not disclosed the
incident immediately to anyone, the incident was so ghastly,
his evidence that he was frightened and was required to take
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medical treatment could not be doubted. More so, in view of
the aforesaid implied admission in the form of suggestion. He
even gave the name of the hospital/ clinic to which he had
been to take treatment soon after the incident. It was Dr.
Shirsath’s hospital.
34. In view of suggestions admitting this witness to
have witnessed the incident, his somewhat unnatural conduct
post incident would be of little consequence. The case is,
therefore, distinguishable with the authorities relied on namely,
Shankarlal, Naseem Khan and Amar Singh (supra). Nothing
has been brought on record during the cross-examination of
this witness to lead us to infer that he had an axe to grind
against the appellants and save the actual culprits.
35. On arrest of the appellant Sudhakar, he expressed
desire to make a disclosure statement. P.W.12 Parmeshwar is
a witness to the disclosure statement. Most of the part of the
statement was inadmissible since the appellant Sudhakar took
the police and the panchas to the places wherefrom nothing
could be recovered. P.W.12 Parmeshwar testified that,
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appellant Sudhakar made a statement that he would produce
weapon which he had hidden under ground at Bhoom. He had
further disclosed that he would produce Katti like weapon. The
police officer recorded the said statement, he signed the same
as a witness. The appellant too signed the same. It is at
Exh.119. The appellant then took them to one place in
agricultural field. It was known as “Bamanpatti”. The
cameraman had accompanied them. There were 6 rows of
heaps of mud. Sudhakar removed two Kattis, one each from
under two different heaps. The police seized the same under
panchanama (Exh.120). He signed the same. On the same
lines is the evidence of the investigating officer who recorded
the disclosure statement made by appellant Sudhakar. Then
there is evidence of P.W.32 Vikas who had accompanied them
to snap the photographs. The evidence of this witness is
consistent with the evidence of P.W.12 and the investigating
officer. Although the photographs tendered in the evidence by
him were not supported by Certificate under Section 65-B of
the Evidence Act, his oral testimony would reinforce the
prosecution case. During the investigation, both the seized
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Kattis were shown to the Medical Officer Dr. Upendra Kulkarni
(P.W.24), who opined that the injuries on the person of the
deceased were possible by such weapon. The C.A. report
(Exh.282) indicates that there was human blood on one of the
Kattis. This fact further reinforce the prosecution case. Since
the evidence of the witnesses was recorded about three years
after the incident, there was bound to be some inconsistency
inter-se the evidence of the prosecution witnesses. It was as
regards the number of police vehicles which had been to the
spot for recovery of Kattis pursuant to the disclosure statement
etc. The disclosure statement made by the appellant would
further be relevant as conduct under Section 8 of the Evidence
Act.
36. We, therefore, find that the evidence of P.W.14
Sandipan as regards appellant Sudhakar to have assaulted the
deceased with Katti gets reinforced.
37. During the investigation, the car was found
abandoned in a Ghat Section. It was seized under the
panchanama (Exh.85). P.W.6 Shrikrishna testified that the car
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was found abandoned within the limits of Bhoom village. He
described the car as – it was white colour Indigo Car. The
radiator thereof was crumbled. Front side number plate was
missing. Rear side number plate was intact. It was yellow
colour plate with figures thereon written in black colour. The
same indicates that it was a public transport vehicle. He gave
the car number. The front side parking lamp was damaged.
Some documents were seized from the car, particularly diary
wherein name of appellant Balu Limbaji Kale was written. A
PAN Card of Babu Kale was also found in the car besides his
election/ voter’s card. Two blank stamp papers were also
seized under the panchanama.
38. Nothing fruitful can be brought on record through
his cross-examination.
39. P.W.23 Odin testified that, the said car had
belonged to him. His wife was proprietor of a firm, “Peace
Tours and Travels”. She had purchased the said car. It was
registered in the name of the very firm. He further testified
that, the appellant Babu Limbaji Kale was a driver on a car in a
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year 2012 for one year period. He used to drop him at his
work place. On appellant Babu’s request, he delivered the
said car to him. It was in fact the sale transaction. For
purchase of the car a loan was raised from Finance Company.
The loan was outstanding. The car, therefore, could not be
transferred in the name of the appellant Babu with R.T.O.
record. The appellant Babu paid him Rs.84,500/- as against
delivery of the car in his favour.
40. During cross-examination, the witness testified that
the transaction was oral one. No writing was effected. It
needs no mention that the sale of a motor vehicle is governed
by the Sale of Goods Act. Delivery of possession and receipt
of consideration amount completes the sale transaction.
Property in the goods sold is transferred when intended to be
transferred. It may, therefore, be a case of out and out sale or
agreement for sale since the entire consideration amount was
not paid and the loan of Finance Company was still
outstanding. The fact remains that the car changed hands
from P.W.23’s wife to appellant Babu. There is evidence of
P.W.20 Bhausaheb to the effect that Babu and some of the
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respondents would roam in the same car in the village. Babu
in his examination under Section 313 of the Cr.P.C. did not
offer any explanation except the denial. He also did not offer
any explanation about he having been seen at the driver’s seat
while the car knocked down the motorcycle. As such, his role
in the crime has been duly proved. Although it may appear
that he had no intention to kill the motorbike rider since he
gave push to the motorbike with the car from behind, so as to
facilitate appellant (original accused Nos.5 and 10) to commit
murder of Uddhav, the said act is an offence of abetment to
commit murder in view of Section 107 of the Indian Penal
Code. Moreover, there were break marks trail up to 75 ft.
noticed at the crime scene. When the abettor is present at the
crime scene, his criminal liability is equal to that of the actual
culprit. (Section 114 I.P.C.). He would, therefore, be equally
liable for the punishment provided for the offence of murder
under Section 302 of the Indian Penal Code.
41. Although very many witnesses were examined, the
evidence of most of them is not of much relevance. A passing
reference would, however, be made to the same. P.W.1
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Babaso is a witness to the crime scene panchanama (Exh.72).
it was drawn on the following early morning. The investigating
officer had on the given day to Aurangabad in connection with
some other matter. His evidence indicates that, after having
been informed about the incident, he reached Civil Hospital by
8.30 p.m. Then he recorded the F.I.R. and registered the
crime late in the night. His evidence further indicates that the
crime scene was guarded by the Police Constable on his
direction. We, therefore, find no fault with him in drawing the
spot panchanama after a few hours. At the crime scene a
piece of cut human finger was found besides other articles.
42. P.W.2 Raosaheb Tipale is a witness to the inquest
panchanama (Exh.74). P.W.3 Raichand, P.W.4 Ashok and
P.W.5 Laxman are witnesses to the seizure of clothes. P.W.7
Keshav was a witness to a demo panchanama suggesting that
both the vehicles namely the motorbike and the car involved in
the incident were brought together. How much relevance is
there to such kind of exercise is doubtful. The fact, however,
remains that, his evidence indicates that, both the vehicles had
received dent and damage at the relevant part thereof.
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43. P.W.9 Raosaheb Sapkal is a witness to the
disclosure statement by Sudhakar Bhalerao (appellant in
Criminal Appeal No.770/2018). The same is not relevant since
the appellant took them to various place where he had been
post incident and the place whereat the conspiracy was
hatched. The evidence of P.W.10 Ajay, P.W.16 Hanumant and
P.W.17 Rajesh was skipped by the learned Advocates
representing the appellants. P.W.18 Vasant has testified to
have had seen P.W.13 Vinod and Uddhav proceeding on a
motorbike. We do not propose to record his evidence in
extenso since the said fact has been admitted during cross-
examination of P.W.14. P.W.19 Vitthal is a witness who had
carried 5 persons (appellants) in his car to Pune soon after the
incident. He could only identify the appellant Babu Kale as
one of those 5. P.W.11 Ramdas is a witness relating to seizure
of cell phone from appellant Sunil Surwase (panchanama
Exh.111).
44. From the appreciation of the evidence so far
referred to above, we come to the conclusion that, on the given
day, that both P.W.13 Vinod and deceased were proceeding on
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motorbike from Beed to Neknoor. At Gawari Pati, a white
Indigo Car knocked down the motorbike. The incident was
witnessed by P.W.14 Sandipan. He saw appellant Babu Kale at
the driver seat. He also saw the appellants (original accused
Nos.5 and 10) assaulting the deceased with sharp weapons.
The presence of P.W.14 Sandipan has been admitted.
Admittedly, one witness by name Karande Sir was also there.
His statement under Section 161 of the Cr.P.C. was recorded.
He has not been examined as a prosecution witness. The
investigating officer Sayed Asef (P.W.33) who recorded his
statement has admitted that, Karande Sir has stated in his
statement that two persons had alighted from the car. He
meant to say that those two persons had assaulted the
deceased. While Karande Sir was not examined as
prosecution witness in this case, the Trial Court ought not to
have allowed to refer to his police statement. Since the same
has already been brought on record and the evidence
indicates that there is inconsistency inter-se the prosecution
witnesses namely informant, testified that, three persons
alighted from the car. According to P.W.14 Sandipan, they
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were 4 in number while the investigating officer testified that
Karande Sir told him that those were 2 in number. At the cost
of repetition, it is observed that, the learned Advocate for the
appellants (original accused Nos.5 and 10) has impliedly
admitted the presence of P.W.14 Sandipan and further
suggested that the appellant Sudhakar did not assault the said
witness since he had no enmity with him. Meaning thereby,
the presence of appellant Sudhakar has also been impliedly
admitted.
45. As already observed above, the evidence indicates
that, the car originally belonged to a firm owned by wife of
P.W.23 Odin. He knew appellant Babu Kale. The car involved
in the incident was sold to appellant Babu Kale. The appellant
was seen with the car for many a days preceding the
incidence. P.W.14 identified him as the person who was in the
driver seat of the car which knocked down the motorcycle. As
such, he facilitated the commission of the crime. In view of the
inconsistency as to the number of persons alighting from the
car, two appellants namely Rajendra alias Raju Murlidhar
Ghige and Vinod Madhukar Ghige, deserve to be extended the
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benefit of doubt. Admittedly, both of them were not involved in
mounting an assault on the deceased. In our view, therefore,
their appeals deserves to be allowed.
APPEALS AGAINST ACQUITTAL :
46. The State and brother of the deceased preferred
these two appeals and urged for setting aside the acquittal of
the respondents therein. Admittedly, these respondents were
not present at the crime scene. None of them played any overt
act. They are sought to be fastened with criminal liability on
the ground of privy to conspiracy to commit the murder.
Section 120-A defines the offence of criminal conspiracy. It
reads thus :
“120A. Definition of criminal conspiracy.– When
two or more persons agree to do, or cause to be done(1) an illegal act, or
(2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal
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conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in
pursuance thereof.
Explanation.– It is immaterial whether the illegal act
is the ultimate object of such agreement, or is merely
incidental to that object.”
47. It is said that it is very easy to allege a case of
conspiracy but difficult to prove it. According to the
prosecution case, the panel of deceased Uddhav set up for
Gram Panchayat election in 2012 won all the seats. The
respondents were, therefore, envy of Uddhav’s progress.
They, therefore, conspired to do away with him. In proof of
conspiracy, the prosecution examined P.W.20 Bhasusaheb
Survase, P.W.21 Mohan, P.W.22 Digambar Hade, P.W.25
Ganesh and P.W.26 Chandrakant Survase.
48. P.W.20 Bhausaheb Survase, brother of the
deceased, who was not an eye witness to the incident, testified
that the respondent Chandrasen Surwase left their group 10
years prior to the incident and started working against them.
He joined the group of the respondents namely Prakash
Kokate, Popat Kokate, Bhaskar Surwase, Pintu Bhagwan
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Bhalerao, Prashant Bajirao Survase, Balu Madhukar survase,
Pappu Madhukar Survase, Babu Limbaji Kale, Tulshiram
Ashok Vidyagar, Satish Rajesaheb Survase, Balu Vyankat
Survase, Sunil Gangaram Survase, Sachin alias Mahadeo
Survase etc. He further testified that, there were other
instances as well besides of dispute over a right of way. This
witness was examined to make out a case of motive as well.
This witness testified that, the car involved in the incident was
driven by appellant Babu in the village and other respondents
used to sit therein and roam in the village by rotation. His
evidence as regards conspiracy i.e. meeting held by these
respondents at Veterinary Hospital at Neknoor is based on
hear-say. He had learnt the same from witness Digambar
Hade (P.W.22). It, therefore, cannot be said that the evidence
of this witness furthered the prosecution case to make out an
offence of conspiracy to commit murder.
49. P.W.21 Mohan testified that, on 12/3/2013, i.e.
about a week before the incident, he had been to Swagat Beer
Bar to dine. In the neighbouring cabin in the hotel, some
people were sitting and talking loudly under the influence of
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liquor. He further testified that, those persons were saying that
there was no alternative than to eliminate Uddhav Surwase.
He further testified that, one of those persons took a
responsibility of everything i.e. defend in the Court of law to the
one who would eliminate Uddhav. He then testified that, he
peeped in the cabin to see that those were the respondents
namely Prakash, Popat, Sugriv, Chandrasen, Bhaskar and
some others. He even identified them before the Court. On
behalf of some of the respondents, the presence of this
witness in the hotel and even in the cabin (No.10) has been
admitted during cross-examination. This witness was,
however, confronted with his police statement, which is silent
to record therein that he peeped in the neighbouring cabin.
This is vital omission amounts to contradiction. Needless to
mention, all the contradictions or omissions have been duly
proved by the defence by confronting the concerned witnesses
and the investigating officer who has recorded the statements.
50. The conduct of this witness, however, indicates
that, although he informed the same to Uddhav, who laughed it
off, he did not prefer to intimate the same to the police nor did
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Uddhav feel to do so. The statement of this witness was
recorded on 8/4/2013 i.e. 19 days after the incident.
51. Then comes P.W.22 Digambar Hade. It is in his
evidence that, before the incident, he had been to weekly
market at village Neknoor. According to him, he witnessed a
meeting held under a Neem Tree towards left side of
Veterinary Hospital and discussion was going on. As those
persons were from village Kumbhari, he went there. In the
said meeting, Sachin Survase, Balu Survase, Popat Kokate,
Sugriv Survase, Chandu Survase, Sunil Survase, Satish
Survase etc. were present. Some other persons were also
present. He, however, could not name them. After taking a
pause, he pointed out towards the person sitting in the last row
in the east corner and said that Prakash Kokate was also
present. All these persons were sitting together. According to
him, Chndu (Chandrakant) said, “Unless Uddhav is finished,
the villagers will not be happy. Respondents Popat, Prakash
and Bandu took the responsibility to defend in Courts of law
the one who would come forward and eliminate Uddhav.
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52. This witness could not give the day, date and time
by which he had seen these respondents sitting at Neem Tree
near Veterinary Hospital at Neknoor on weekly bazar day. He
did not approach the police on his own immediately after
having heard about the conspiracy. His statement was
recorded on 25 March (Hade to check) i.e. 5 days after the
incident and number of days after alleged conspiracy was
hatched.
53. P.W.25 Ganesh testified that, a month before the
incident in question, another incident took place. That time he
was proceeding on his motorbike. It was about 5.00 p.m. He
was passing through the field of Dr. Kalyankar. He saw some
persons from village Kumbhari had gathered at a mango tree.
Those persons were Popat Kokate, Bhaskar Survase, Sunil
Survase, Satish Survase, Sachin survase and another 10 to 12
persons which include Bappa Vidyagar, Sudhakar Bhalerao.
However, he did not remember names of all other persons. He
identified them before the Court.
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54. This witness only speaks about having seen these
respondents together at a particular place. He did not claim to
have heard anything being discussed by these persons as a
plan to eliminate Uddhav. P.W.26 Chandrakant is a last
witness on the point of conspiracy. He testified that, one day
before the incident i.e. on19 March, a party was held in the
field of one Babruwan Surwase. He was proceeding from that
field. It was 6.00 p.m. he saw respondents Chandrasen,
Popat, Prakash and Sachin besides 7 others sitting together
there.
55. This witness too did not claim to have heard talk
among these persons with regard to eliminating Uddhav. As
such, nothing was deposed to by P.W.25 and P.W.26 regarding
alleged hatching of conspiracy. Section 10 of the Evidence
Act, therefore, could not be invoked.
56. As observed above, that it is very easy to allege a
case of conspiracy but difficult to prove the same. in the case
in hand, appreciation of the evidence of the witnesses referred
to hereinabove lead us to infer the prosecution to have failed to
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make out an offence of conspiracy to commit murder and the
murder to be the fall-out thereof.
57. In the case of Ganesh Bhavan Patel (supra), it has
been observed :
“Although in an appeal form an order of acquittal the
powers of the High Court to reassess the evidence and
reach its own conclusions are as extensive as in an
appeal against an order of conviction, yet, as a rule of
prudence, it should always give proper weight and
consideration to such matters as (1) the views of the
trial Judge as to the credibility of the witnesses; (2)
the presumption of innocence in favour of the
accused, a presumption certainly not weakened by the
fact that he has been acquitted at the trial; (3) the right
of the accused to the benefit of any doubt; and (4) the
slowness of an appellate Court in disturbing a finding
of fact arrived at by a Judge who had the advantage of
seeing the witnesses. Where two reasonable
conclusions can be drawn on the evidence on record,
the High Court should, as a matter of judicial caution,
refrain from interfering with the order of acquittal
recorded by the Court below. In other words, if the
main grounds on which the Court below has based its
order acquitting accused, are reasonable and plausible,
and cannot be entirely and effectively dislodged, or
demolished, the High Court should not disturb the
acquittal.”.
58. In the sequel, the appeals against acquittal fail.
With this, the following order is passed.
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ORDER
(i) Criminal Appeals No.994/2024 and 1040/2024 preferred
by the State and brother of the victim respectively, are hereby
dismissed.
(ii) Criminal Appeal No.767/2018 filed by Vinod Madhukar
Ghige and Criminal Appeal No.768/2018 filed by Rajendra
alias Raju Murlidhar Ghige are allowed. The order of
conviction and consequential sentence passed by learned
Additional Sessions Judge, Beed, dated 10/4/2017, in
Sessions Case No.94/2013, convicting these appellants for the
offences punishable under Sections 302 read with Section 149
and for offences punishable under Sections 147 and 148 of the
Indian Penal Code are hereby set aside. The appellants Vinod
Madhukar Ghige and Rajendra alias Raju Murlidhar Ghige are
acquitted thereof. Both of them be set at liberty forthwith if not
required in any other case. Fine amount, if paid be refunded to
them.
(iv) Criminal Appeal No.769/2018 filed by Tuljiram alias
Bappa Ashok Vidyagar and Criminal Appeal No.770/2018 filed
by Sudhakar alias Pintu Bhagwan Bhalerao are dismissed,
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with slightest modification in the operative order of the Trial
Court, i.e. Section 149 is replaced by Section 34 for conviction
of these appellants.
(v) Criminal Appeals No.224/2017 filed by Babu Limbaji Kale
is dismissed. However, the conviction imposed upon him by
the Trial Court is modified and he is convicted for offence
punishable under Section 302 read with Section 109 read with
Section 114 of the Indian Penal Code. The sentence of life
imprisonment against him to stand unaltered, maintaining the
quantum of fine as well.
(vi) All the Criminal Appeals are disposed of in above terms.
Consequently, all pending Criminal Applications are disposed
of.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-