Bombay High Court
Ravi S/O. Subhash Satbhai vs The State Of Maharashtra on 22 November, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:27334-DB
1 Criappeal-871-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 565 OF 2018
Suresh S/o Narayan Sangekar
Age: Major, Occu : Service,
R/o: Police Colony, Hingoli .... Appellant
Versus
The State of Maharashtra
Through The Police Station Ofcer,
City Police Station, Kalmanuri,
Ta. Kalmanuri, Dist. Hingoli .... Respondent
......
AND
CRIMINAL APPEAL NO. 563 OF 2018
Ravi S/o Subhash Satbhai
Age: 24 years, Occu: Service,
R/o: Morwadi,
Taluka : Kalamnuri, District Hingoli .... Appellant
Versus
The State of Maharashtra
Through : The Police Station Ofcer,
City Police Station, Kalmanuri,
Ta. Kalmanuri, Dist. Hingoli .... Respondent
....
AND
CRIMINAL APPEAL NO.540 OF 2018
1. Subhash Shankerappa Satbhai
Age: 51 years, Occu: Service,
R/o. Morwadi, Tq. Kalmanuri,
Dist. Hingoli
2. Gajanan Shankerappa Satbhai
Age: 41 years, Occu: Agri.,
R/o. As above
[ As per Hon'ble Courts order dtd. 17/10/2023
separate Cri. Appeal No.76/2024 fled by Appellant No.2]
3. Shivanand Shankerappa Satbhai
Age: 28 Yrs., Occu. Agri.,
R/o. As above ... Appellants
Versus
2 Criappeal-871-2023.odt
1] The State of Maharashtra
2] Nandabai Shivanand Waikule
Age: 50 years, Occu: Household,
R/o. Palodi, Tq. Kalamnuri,
Dist. Hingoli
[Amendment made as per Court's order dtd. 22.01.2024] ... Respondents
....
AND
CRIMINAL APPEAL NO. 76 OF 2024
Gajanan Shankarappa Satbhai
Age: 50 yeras, Occupation: Agriculture,
R/o. Morwadi, Tq. Kalamnuri,
Dist. Hingoli .... Appellant
Versus
1] The State of Maharashtra
2] Ganesh Bapurao Waykole
Age: 45 years, Occupation: Agriculture,
R/o. Padoli, Tq. Kalamnuri,
Dist. Hingoli
3] Nanadabai w/o Shivanand Waykole
Age: 42 years, Occupation: Agriculture,
R/o. Padoli, Tq. Kalamnuri,
Dist. Hingoli .... Respondents
.....
AND
CRIMINAL APPEAL NO.518 OF 2020
Ganesh S/o Bapurao Waykole
Age: 40 yrs, Occu: Agriculture,
R/o., At. Palodi, Post Kalamnuri
Tq, Kalamnuri, Dist. Hingoli ... Appellant
Versus
1] Subhash Shankerappa Satbhai
Age: 51 years, Occ.
2] Gajanan Shankerappa Satbhai
Age: 41 years, Occ. Agri.
3] Shivanand Shankerappa Satbhai
Age: 28 years, Occ. Agri.
4] Ravi S/o Subhash Satbhai
Age: 24 years, Occ. Service
3 Criappeal-871-2023.odt
5] Ramesh S/o Subhash Satbhai
Age: 20 years, Occ. Agril
6] Shankerappa S/o Subhanji Satbhai
Age: 90 years, Occ. Agril
7] Mankarnabai W/o Subhash Satbhai
Age: 40 years, Occ. Household,
Res. No.1 to 7 are R/o Morwadi
Tq. Kalamnuri, Dist. Hingoli
8] Hari S/o Santosh Hingankar
Age: 23 years, Occ. Service
R/o, Palodi, At Present Morwadi,
Tq. Kalamnuri, Dist. Hingoli
9] Sow. Pratima W/o Gajanan Satbhai
Age: 30 years, Occ. Household
10] Sow. Joyti W/o Shivanand Satbhai
Age: 27 years, Occ. Household
11] Suresh S/ Narayan Sangekar
Age: Major years, Occ. Service
Res. No.9 to 11 are R/o Morwadi
Tq. Kalamnuri, Dist. Hingoli
12] The State of Maharashtra ... Respondents
....
AND
APPLICATION FOR LEAVE TO FILE APPEAL BY STATE NO.91 OF
2020
The State of Maharashtra
Through: Police Station Ofcer,
Police Station Kalamnuri,
Tq. Kalamnuri, Dist. Hingoli ... Applicant
Versus
1] Subhash s/o Shankerappa Satbhai,
Age: 48 years, Occu: Agriculture
2] Gajanan s/o Shankerappa Satbhai,
Age: 38 years, Occu: Agriculture
3] Shivanand s/o Shankerappa Satbhai,
Age: 25 years, Occu: Agriculture
4 Criappeal-871-2023.odt
4] Ravi s/o Subhash Satbhai
Age: 24 years, Occ: Agriculture
5] Ramesh s/o Subhash Satbhai
Age: 20 years, Occu: Agriculture
6] Shankerappa s/o Subhanji Satbhai
Age: 90 years, Occu: Agriculture
7] Mankarnabai w/o Subhash Satbhai
Age: 40 years, Occu: Household,
Resp Nos. 1 to 7 are R/o Morwadi,
Tq. Kalamnuri, Dist. Hingoli
8] Hari s/o Santosh Hingankar
Age: 23 years, Occu: Service
9] Sow. Pratima w/o Gajanan Satbhai
Age: 38 years, Occu: Household
10] Sow. Jyoti w/o Shivananda Satbhai
Age: 27 years, Occu: Household
11] Suresh s/o Narayan Sangekar
Age: Major, Occu: Service,
Resp Nos.8 to 11 are R/o. Palodi
at present Morwadi,
Tq. Kalamnuri, Dist. Hingoli ... Respondents
Appearance :-
Mr. V. D. Sapkal [Senior Advocate] i/b Mr. S. R. Sapkal, Advocate for
the Appellants in Appeal Nos.565/2018 and 563/2018 and for
Respondent Nos. 4 and 11 in ALS No.91/2020
Mr. S. J. Salunke, Advocate for the Appellant in Appeal No.76/2024
and for Respondent No.2 in ALS No.91/2020
Mr. Satej S. Jadhav, Advocate for Appellants in Appeal No.540/2018
and for Respondent Nos.1, 3, 5 to 10 in ALS No.91/2020
Mr. Dhananjay M. Shinde, Advocate for Appellant in Appeal
No.518/2020
Mr. S. D. Ghayal, Addl. PP for Respondent - State in Appeals and for
Applicant in ALS No.91/2020
______________________________________________________________
5 Criappeal-871-2023.odt
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 25/09/2024
Pronounced On : 22/11/2024
COMMON JUDGMENT : [PER NEERAJ P. DHOTE, J.]
1. As all these Appeals are directed against the Judgment and
Order dated 30/07/2018, passed by the learned Additional Sessions
Judge, Hingoli, in Sessions Trial No.36/2015, they are decided by
this Common Judgment. The operative order of the impugned
Judgment reads as under :
"1. Accused Nos.1 Subhash Shankerappa Satbhai, No.2
Gajanan Shankerappa Satbhai, 3. Shivanand Shankerappa Satbhai
and 11. Suresh Narayan Sangekar are convicted under section 235
(2) of Code of Criminal Procedure for an ofence punishable under
Section 302 of Indian Penal Code and sentenced to sufer
imprisonment for life and to pay a fne of Rs.25,000/- (Rupees
twenty fve thousand) each. In default to sufer rigorous
imprisonment for one year.
2. Accused Nos.1 Subhash Shankerappa Satbhai, No.2
Gajanan Shankerappa Satbhai, 3. Shivanand Shankerappa Satbhai
and 4. Ravi Subhash Satbhai and accused No.11 Suresh Narayan
Sangekar are convicted under section 235 (2) of Code of Criminal
Procedure for an ofence punishable under section 324 of Indian
Penal Code and sentenced to sufer Rigorous imprisonment for
one year and to pay a fne of Rs.5,000/- (Rupees fve thousand
each). In default to sufer rigorous imprisonment for three
months.
3. Accused No.6 Shankerappa Satbhai and accused NO.9
Pratima Gajanan Satbhai are held guilty for an ofence punishable
under Section under section 323 of Indian Penal Code. Instead of
sending them in jail, they be released on probation on their
executing bond in a sum of Rs.10,000/- for a period of one year for
their good behaviour under Section 4 of the Probation of
Ofenders Act. However, they shall pay Rs.5,000/- each
compensation to Sakhubai Bapurao Waikule within 15 days.
4. Accused No.5 Ramesh Subhash Satbhai, No.7 Mankarnabai
Subhash Satbhai, No.8 Hari Santosh Hingankar and No.10 Jyoti
w/o Shivanand Sangekar are hereby acquitted under Section 235
(1) of Code of Criminal Procedure for ofence under Section 147,
148, 302, 307 read with section 149 of Indian Penal Code and
under Section 120 (B) of Indian Penal Code.
6 Criappeal-871-2023.odt
5. Accused Nos.1 to 4, 6, 9 and 11 are acquitted under Section
235 (1) of Code of Criminal Procedure for ofence punishable
under Section 147, 148, 307 read with Section 149 and Section
120 (B) of Indian Penal code.
6. Set of under Section 428 of Code of Criminal Procedure be
given to convicted accused.
7. After realization of fne amount Rs.75,000/- be given to the
Nandabai w/o Shivanand Waikule (widow of deceased) and
Rs.25,000/- be given to the injured Ganesh Waikule as
compensation.
8. Muddemal property being worthless be destroyed after
appeal period.
9. Accused No.5, 7, 8 and 10 are directed to execute personal
Bond for Rs.15,000/- each with surety in the like amount as per
section 437A of Code of Criminal Procedure.
10. Copy of Judgment be given to convicted accused free of
costs.
11. Accused are informed about their right to appeal to
Honourable High Court."
2. Appeal Nos.540/2018, 563/2018, 565/2018 and 76/2024 fled
by the Appellants / Convicts are against conviction. Appeal
No.518/2020 fled by the Informant and ALS No.91/2020 fled by
the State are against acquittal.
3. The Prosecution's case, as revealed from the Police Report is
as under :-
[I] The Informant and his family members on the one hand and
the Accused / Convicts on the other hand were in dispute in respect
of the part of agricultural land bearing Gat No.136, situated at
Village Palodi, District Hingoli. Their agricultural lands are adjacent
to each other. Both were claiming possession and ownership over
the disputed land. On 01/06/2015 around 8.30 a.m., Shivanand
Bapurao Waikule [hereinafter referred to as 'the Deceased'] and
his wife proceeded towards the agricultural land with agricultural
equipments. Accused No.2 [Gajanan Shankerappa Satbhai],
Accused No.3 [Shivanand Shankerappa Satbhai] and Accused No.6
7 Criappeal-871-2023.odt
[Shankerappa Subhanji Sathbai] obstructed them from proceeding
further in the agricultural land. They were constrained to return.
The Deceased informed his brother - Ganesh Bapurao Waikule [PW -
1] about the same. The Informant along with his mother and wife
proceeded towards the agricultural feld. They met Deceased and
his wife on the way. They all went ahead to ask the aforesaid
Accused as to why Deceased was obstructed. Heated exchanges
took place between both the sides. The other Accused were also
present on the spot. Accused No.1 [Subhash Shankerappa Satbhai]
assaulted the Informant with koyta. Accused No.4 [Ravi Subhash
Sathbai], Accused No.5 [Ramesh Subhash Satbhai], Accused No.8
[Hari Santosh Hingankar], Accused No.9 [Pratima Gajanan Satbhai],
Accused No.10 [Jyoti Shivanand Satbhai] and Accused No.11
[Suresh Narayan Sangekar] surrounded the Informant, Deceased
and the witnesses with sticks, axe, koyta and stones in their hands.
The Informant was assaulted by Accused No.1 [Subhash
Shankerappa Satbhai] and Accused No.11 [Suresh Narayan
Sangekar] with koyta on his head and other Accused assaulted the
Informant on the hands, legs and other parts of body. The
Informant fell down. The Informant's mother and the Deceased
intervened. The Accused assaulted Informant's mother with stones,
stick and axe. The Accused persons assaulted the Deceased with
stick, axe, koyta and stones on the head, backside of neck and other
parts of body. The wives of Informant and Deceased were
assaulted by the Accused with stones and sticks. Due to hue and
cry, the neighbouring agriculturist reached on the spot and all the
Accused fled. The injured were taken to the Hospital for treatment.
Deceased succumbed to the injuries. The statement of the
Informant was recorded by the Police and Crime No.70/2015 came
to be registered with Kalamnuri Police Station for the ofence
8 Criappeal-871-2023.odt
punishable under Sections 302, 307, 120[B], 143, 147, 148 and 149
of the Indian Penal Code, 1860 [hereinafter referred to as 'IPC']
against the Accused persons.
[II] The Inquest was done. Dead body was referred for the
Postmortem. The Spot Panchnama was conducted. The statement
of witnesses were recorded. The supplementary statement of the
Informant was recorded. The Accused were arrested during the
course of investigation. Two [2] axe, one [1] koyta and one [1] stick
came to be seized at the instance of Accused No.7 [Mankarnabai
Subhash Satbhai] while in police custody. One [1] axe came to be
seized at the instance of Accused No.2 [Gajanan Shankerappa
Satbhai] while in police custody. The clothes of Accused, Deceased
and witnesses were seized. The seized Articles were referred to
the Chemical Analyzer for examination. The Postmortem Report
and the medical papers of witnesses were collected. On
completion of the investigation, the Charge-sheet and
supplementary Charge-sheet came to be submitted by the
Investigating Ofcers.
[III] On committal, the learned Trial Court framed the Charge
against the Accused for the ofence punishable under Sections 147,
148, 302 r/w Section 149, 307 r/w Section 149 and 120[B] of IPC
vide Exhibit - 73. The Accused pleaded not guilty and claimed to be
tried. To prove the Charge, Prosecution examined in all seventeen
[17] witnesses and brought on record the relevant documents.
After the Prosecution closed their evidence, the statement of
Accused came to be recorded under Section 313[1][b] of the Code
of Criminal Procedure, 1973 [hereinafter referred to as 'Cr.PC']. The
Accused denied the case and evidence of the Prosecution.
According to the Accused, the Informant, witnesses and Deceased
were assaulted by the unknown persons and when they came to
9 Criappeal-871-2023.odt
know about the same, they went to rescue them and in that
incident, they sufered injuries. The defence witness - Dr. Madhav
Sambhaji Vibhute came to be examined to show that, at the
relevant time, Accused No.10 [Jyoti Shivanand Satbhai] was
hospitalized. After the defence closed their evidence, the learned
Trial Court heard all the sides and after appreciating the evidence
on record, passed the impugned Judgment and Order.
4. It is submitted by the learned Senior Advocate for the
Appellants, in Appeal Nos. 565/2018 and 563/2018 that, the
Charge, which was framed by the learned Trial Court, was with the
aid of Section 149 of IPC, however, the Appellants are acquitted for
the ofence punishable under Sections 147, 148 and 149 of IPC and
convicted individually for their individual act, which has caused
prejudice to the Appellants. There are lot of improvements /
omissions in the testimony of the Informant and the injured
witnesses. Though it has come in the evidence of Prosecution
witnesses, that two of the assailants, had covered their faces, no
Test Identifcation Parade [TIP] was held. The exaggeration in the
testimony of the witnesses is writ large. The Appellants had also
sufered injuries on their person and this shows that, the
Prosecution suppressed the genesis and clear picture is not
brought before the Court. The place of incident belonged to the
Appellants. The statement of PW - 2 [Madhavrao Dhurpatrao
Bangale], who is examined as the eyewitness, is recorded after fve
[5] days from the date of incident and his evidence goes to show
that, he reached the spot after the incident was over. It has come in
his evidence that, the spot of incident was at height and was not
visible from his land. The evidence of PW - 4 [Sakhubai Bapurao
Waikule], who is examined as the eyewitness to the incident, shows
that, her statement was recorded after twelve [12] days from the
10 Criappeal-871-2023.odt
date of incident. The evidence of PW - 6 [Nandabai Shivanand
Waikule], who is examined as the eyewitness, is not corroborated
by corresponding injuries on the Deceased and the Informant. The
learned Trial Court did not appreciate the evidence in correct
perspective and therefore, the conviction and sentence recorded by
the learned Trial Court be quashed and set aside. The Judgments
cited by him would be considered in the later part of this Judgment
at appropriate stage.
5. It is submitted by the learned Advocates for the Appellants, in
Appeal No.540/2018 and 76/2024 that, the incident had taken place
in the land belonging to the Appellants. The Appellants were also
injured and they had taken treatment in the Hospital. After they
were discharged from the Hospital, they were taken in custody and
therefore, they had no opportunity to lodge the FIR about the
incident. The Prosecution has examined injured eyewitnesses.
Under such scenario, the question is, who was the aggressor. The
incident did not take place as deposed by the witnesses. There are
discrepancies in the testimony of the eyewitnesses. The discovery
of weapons at the instance of Accused No.7 [Mankarnabai Subhash
Sathbai] would be of no assistance, considering the role attributed
to her. The discovery of axe at the instance of Accused No.2
[Gajanan Shankerappa Satbhai] in absence of blood stains would be
of no assistance to link with the Crime. On the same evidence, the
Accused i.e. Accused No.5 [Ramesh Subhash Satbhai], Accused No.7
[Mankarnabai Subhash Satbhai], Accused No.8 [Hari Santosh
Hingankar] and Accused No.10 [Jyoti Shivanand Satbhai] are
acquitted for all the charges. There was no intention to cause
death and there was absence of mens rea. Therefore, the ofence
would fall in the category of Section 304 [Part-I] and not 302 of IPC.
The conviction be curtailed to lesser ofence.
11 Criappeal-871-2023.odt
6. It is submitted by the learned Addl. PP that, the evidence of
injured eyewitnesses shows that, the Appellants used deadly
weapons such as, axe, koyta, lathi and stones. Though they are
articles used in the agricultural operations, when used in the Crime,
they become deadly weapons. The case is based on direct evidence
of injured witnesses corroborated by medical evidence. There is
immediate report by the Informant in the Hospital, which reflects
the names of Appellants / Accused. FIR is not an encyclopedia so as
to include each and every aspect of incident. By examining the
Medical Ofcer in whose evidence, the Postmortem Report is
exhibited, the Homicidal Death of Informant's brother is proved
and the revenue record is exhibited to show as to who was in
possession of the land. The evidence on record shows that, there
was dispute between both the sides on account of land. The
Prosecution has also proved the injuries on the Appellant /
Accused. False defence, that the assaulters were unknown person,
is taken. The leave to appeal be granted and the order of acquittal
be quashed and set aside.
7. The learned Advocate for the Informant submits that, the
case is based on the testimony of injured eyewitnesses. False
defence is taken by the Accused / Appellants. The defence of
missed blows on the Prosecution witnesses is unacceptable. There
is no slightest evidence to show that, the Accused / Appellants
acted in self defence. The counter case of the Accused / Appellants
fled under Section 156[3] of Cr.PC was dismissed. There is evidence
of independent witness, who was having his land adjacent to the
place of incident. Considering the conduct of the Accused /
Appellants, the inconsistencies are to be ignored. The common
object is established from the Prosecution witnesses. It is
immaterial as to who caused which injury. The Trial Court's
12 Criappeal-871-2023.odt
Judgment for acquittal be set aside and all the Accused /
Appellants be convicted for all the charges. The Judgments cited
by him would be considered in the later part of this Judgment at
appropriate stage.
8. Scrutinized the evidence available on record. The
Prosecution's case is based on the testimony of the eyewitnesses.
PW - 1 [Ganesh Bapurao Waikule], PW - 4 [Sakhubai Bapurao
Waikule] and PW - 6 [Nandabai Shivanand Waikule], who are the
brother, mother and sister-in-law, respectively of Deceased -
Shivanand Bapurao Waikule, are examined as the eyewitnesses to
the incident. The one, who reached on the spot of incident, is
examined as PW - 2 [Madhavrao Dhurpatrao Bangale]. The
Prosecution's case mainly rests on the testimony of these
witnesses. From their evidence, it is crystal clear that, there is no
dispute on the following aspects :-
[i] The land of PW - 1 [Ganesh Bapurao Waikule], PW - 4
[Sakhubai Bapurao Waikule], PW - 6 [Nandabai Shivanand
Waikule] and land of the Accused / Convicts are adjacent to
each other at village Palodi, District Hingoli ;
[ii] There is dispute in respect of agricultural land between the
said witnesses and the Accused / Convicts ;
[iii] The Civil Suit is fled by the said witnesses against the
Accused / Convicts in respect of seven [7] Acre agricultural
land ;
9. The Crime relating to the incident, which gave rise to the
above referred Sessions case, was registered on the report at
Exhibit - 75 by PW - 1 [Ganesh Bapurao Waikule]. Recording of his
statement, which was in the nature of report, which formed the
basis to register the said Crime, is corroborated by the evidence of
Police Ofcer, who recorded the said report and is examined as PW
- 9 [Vinayak Abhiman Lambe]. His evidence shows that, on
13 Criappeal-871-2023.odt
01/06/2015, when he was the Police Station Ofcer at Kalamnuri
Police Station, information was received around 10.00 a.m. that,
fght was going on in village Palodi and immediately, he got the
information that, the injured were taken to Rural Hospital at
Kalamnuri. With the permission of the Doctor, he recorded the
statement of PW - 1 [Ganesh Bapurao Waikule] as per his say,
wherein, he disclosed the incident and names of the assailants.
10. The evidence of PW - 1 [Ganesh Bapurao Waikule] shows
that, the large part of his evidence is in the nature of omissions in
his report. His evidence indicates that, his supplementary
statement was also recorded. It is a settled position under the law
that, the FIR is not an encyclopedia. As observed earlier, his
statement, which was treated as the FIR, was registered when he
was hospitalized. Excluding the omissions, which are proved
through the Police Ofcer, who recorded his statement, his
evidence shows that, on 01/06/2015, Accused No.3 [Shivanand
Shankerappa Satbhai] gave blow of axe on his head and there was
heavy bleeding from his head. Accused No.4 [Ravi Subhash Satbhai]
gave blow of koyta on his foot. Accused No.5 - Ramesh Subhash
Satbhai threw big stone on his person. His mother [PW - 4], his wife
and his brother's wife [PW - 6] ran towards neem tree to save their
lives raising uproar for help. Prakash Waikule and Madhavrao
Bangale [PW - 2] reached on the spot and he, his mother [PW - 4]
were taken to the Hospital. His brother [Deceased] died due to
assault by the Accused / Appellants. He denied the suggestion
that, he and Deceased were addicted to liquor and were in money
lending business and they were assaulted by unknown persons. His
supplementary statement was recorded on 13/06/2015. Though in
his cross-examination, it has come that, he did not disclose the
Doctor at Kalamnuri and at Hingoli as to how he sufered the
14 Criappeal-871-2023.odt
injuries and who caused the injuries to him, the same would not be
sufcient to disbelieve him, as his statement, which was treated as
the FIR, was recorded shortly after the incident in the Hospital.
11. The evidence of PW - 4 [Sakhubai Bapurao Waikule] shows
that, on the day of incident, her son [Deceased] informed
telephonically that, the family members of Satbhai [Accused /
Appellants] obstructed in cultivation of the land and so, she, her
son - PW-1 [Ganesh Bapurao Waikule] and his wife - Malti went
towards the feld. Deceased and his wife - Nandabai Shivanand
Waikule [PW - 6 ] met them near the feld. They all went towards
their feld. PW - 1 [Ganesh Bapurao Waikule] asked Accused No.1
[Subhash Shankerappa Satbhai] as to why obstruction was created,
to which, Accused No.1 [Subhash Shankerappa Satbhai] told that,
he had asked PW - 1 [Ganesh Bapurao Waikule] not to come
towards the land. Accused No.1 [Subhash Shankerappa Satbhai]
took out the koyta from the cattle shed and hit on the neck of PW -
1 [Ganesh Bapurao Waikule], which was obstructed by PW - 1
[Ganesh Bapurao Waikule] with his right hand. Accused No.4 [Ravi
Subhash Satbhai] and Accused No.11 [Suresh Narayan Sangekar]
came from the backside of cattle shed. The Accused No.9 [Pratima
Gajanan Satbhai], Accused No.10 [Jyoti Shivanand Satbhai] and
Accused No.8 [Hari Santosh Hingankar] came from the backside of
cattle shade with sticks in their hands. Accused No.11 [Suresh
Narayan Sangekar] gave blow of koyta on the head of PW - 1
[Ganesh Bapurao Waikule], Accused No.2 [Gajanan Shankerappa
Satbhai] assaulted PW - 1 [Ganesh Bapurao Waikule] by axe.
Accused No.4 [Ravi Subhash Satbhai] gave blow by koyta on right
leg of PW - 1 [Ganesh Bapurao Waikule] and Accused No.1 [Subhash
Shankerappa Satbhai] gave blow by koyta on left leg of PW - 1
[Ganesh Bapurao Waikule].
15 Criappeal-871-2023.odt
12. Further evidence of PW - 4 [Sakhubai Bapurao Waikule]
shows that, the Deceased [Shivanand Bapurao Waikule] intervened
and Accused No.2 [Gajanan Shankerappa Satbhai] caught hold his
waist and took him aside. Accused No.1 [Subhash Shankerappa
Satbhai] asked PW - 1 [Ganesh Bapurao Waikule] whether he want
land or well and he will not leave him alive. Accused No.1 [Subhash
Shankerappa Satbhai] gave blow of koyta on the backside of neck of
the Deceased. Accused No.4 [Ravi Subhash Satbhai] gave blow of
koyta on the head of Deceased from left side. Accused No.11
[Suresh Narayan Sangekar] gave blow of koyta on backside of waist
of the Deceased. The Deceased fell down. Accused No.2 [Gajanan
Shankerappa Satbhai] gave blow by axe on calf of the Deceased.
She raised alarm and Accused No.6 [Shankerappa Subhanji Satbhai]
hit her on the head by stone. Accused No.9 [Pratima Gajanan
Satbhai] and Accused No.10 [Jyoti Shivanand Satbhai] beat her by
stick and she fell down. She prayed the Accused by folding hands
not to beat them. Accused No.8 [Hari Santosh Hingankar] beat her
daughters-in-law with stick. The daughters-in-law ran towards
neem tree raising uproar. Prakash Waikule and Madhavrao
Dhurpatrao Bangale [PW - 2] heard the uproar and reached on the
spot of incident. The Accused fled on two motorcycles, triple seat
and some ran away. Deceased asked Madhavrao Dhurpatrao
Bangale [PW - 2] to provide him water. Prakash Waikule and
Madhavrao Dhurpatrao Bangale [PW - 2] tied the scarf on the
injuries of PW - 1 [Ganesh Bapurao Waikule] and the Deceased. The
Villagers shifted them to the Hospital. They were initially taken to
Hospital at Kalamnuri and thereafter, PW - 1 [Ganesh Bapurao
Waikule] and she were taken to the Hospital at Nanded.
16 Criappeal-871-2023.odt
13. The above evidence of PW - 4 [Sakhubai Bapurao Waikule] is
excluding the omissions in her previous statement. Her evidence
shows that, she was hospitalized for twelve [12] days and her
statement was recorded after her discharge. It has come in the
cross-examination of PW - 15 [Ravikant Amrut Sonune], who was
the Police Inspector at Kalamnuri Police Station at the relevant
time and who carried the major part of investigation, that he tried
to record the statement of injured lady, but she was not in mental
condition to give statement. The Prosecution also examined the
Doctor, who treated PW - 1 [Ganesh Bapurao Waikule] and PW - 4
[Sakhubai Bapurao Waikule] at Nanded, as PW - 5 [Dr. Santosh
Virchand Porwal]. Though it has come in the cross-examination of
PW - 5 [Dr. Santosh Virchand Porwal] that, the patient i.e. PW - 1
[Ganesh Bapurao Waikule] and PW - 4 [Sakhubai Bapurao Waikule]
were conscious and oriented, it is clear that, the statement of PW -
4 [Sakhubai Bapurao Waikule] was recorded immediately after her
discharge from the Hospital. Thus, the delay in recording her
statement will not be fatal. She denied the suggestion that, when
she reached on the spot of incident, her sons were lying in an
injured condition on the spot of incident. In the light of her above
discussed evidence, her non-disclosure of names of the assailants
to the Doctor would not be fatal for the Prosecution.
14. The evidence of PW - 6 [Nandabai Shivanand Waikule] shows
that, the incident took place on 01/06/015. Deceased and the
labourers started towards their feld and she went behind them
with break fast. Accused No.2 [Gajanan Shankerappa Satbhai],
Accused No.3 [Shivanand Shankerappa Satbhai] and Accused No.6
[Shankerappa Subhanji Satbhai] obstructed the agricultural
implements near their feld and they told them that, they have no
land and no way towards the side they were proceeding. Deceased
17 Criappeal-871-2023.odt
asked the labourers to return and he will pay Rs.100/- to them,
upon which, Accused No.2 [Gajanan Shankerappa Satbhai] told
them to return and he will pay Rs.200/- to each of them. Accused
No.3 [Shivanand Shankerappa Satbhai] asked as to why he should
be paid and abused. The labourers left. The said Accused started
quarreling with the Deceased. Deceased gave phone call to his
brother - PW - 1 [Ganesh Bapurao Waikule]. She and Deceased
started returning to the village. On their way back, PW - 4
[Sakhubai Bapurao Waikule], her brother-in-law - PW - 1 [Ganesh
Bapurao Waikule] and his wife met them. The Deceased disclosed
the said incident to PW - 1 [Ganesh Bapurao Waikule]. Thereafter,
they all went to their feld and when they reached near the hut,
Accused No.3 [Shivanand Shankerappa Satbhai], Accused No.2
[Gajanan Shankerappa Satbhai], Accused No.1 [Subhash
Shankerappa Satbhai], Accused No.6 [Shankerappa Subhanji
Satbhai] and Accused No.7 [Mankarnabai Subhash Satbhai] were
present at the hut. PW - 1 [Ganesh Bapurao Waikule] questioned
Accused No.1 [Subhash Shankerappa Satbhai] as to why their
agricultural implements were obstructed, upon which, Accused
No.1 [Subhash Shankerappa Satbhai] replied that, he will tell as to
why the implements were obstructed.
15. Further evidence of PW - 6 [Nandabai Shivanand Waikule]
shows that, Accused No.1 [Subhash Shankerappa Satbhai] took out
the koyta from the hut and gave blow on the neck of PW - 1
[Ganesh Bapurao Waikule], which he obstructed by his right hand.
Accused No.4 [Ravi Subhash Satbhai], Accused No.5 [Ramesh
Subhash Satbhai], Accused No.11 [Suresh Narayan Sangekar],
Accused No.2 [Gajanan Sankerappa Satbhai], Accused No.3
[Shivanand Shankerappa Satbhai], Accused No.8 [Hari Santosh
Hingankar] and their wives came from the backside of hut. Accused
18 Criappeal-871-2023.odt
No.11 [Suresh Narayan Sangekar] took out koyta from the hut and
gave blow on the head of PW - 1 [Ganesh Bapurao Waikule].
Accused No.3 [Shivanand Shankerappa Satbhai] and Accused No.2
[Gajanan Shankerappa Satbhai] gave blow of axe on the head of PW
- 1 [Ganesh Bapurao Waikule]. PW - 1 [Ganesh Bapurao Waikule]
fell down. Accused No.2 [Gajanan Shankerappa Satbhai] and
Accused No.3 [Shivanand Shankerappa Satbhai] gave blow of axe on
the back of PW - 1 [Ganesh Bapurao Waikule]. Accused No.1
[Subhash Shankerappa Satbhai] gave blow by koyta on right calf and
front portion of foot of PW - 1 [Ganesh Bapurao Waikule]. Accused
No.1 [Subhash Shankerappa Satbhai] said not to keep PW - 1
[Ganesh Bapurao Waikule] alive.
16. In her further evidence, PW - 6 [Nandabai Shivanand Waikule]
deposed that, Accused No.1 [Subhash Shankerappa Satbhai] gave
blow by koyta on the neck of Deceased. Accused No.2 [Gajanan
Shankerappa Satbhai] gave blow by axe on the head of Deceased.
Deceased fell down. Accused No.11 [Suresh Narayan Sangekar]
gave blow by koyta on the waist of Deceased. Accused No.2
[Gajanan Shankerappa Satbhai] gave blow by axe on calf of the
Deceased. She, her sister-in-law and mother-in-law [PW - 4] ran
downward raising alarm. Accused No.6 [Shankerappa Subhanji
Satbhai] hit stone on the head of her mother-in-law [PW - 4]. On
hearing their uproar, Madhavrao Dhurpatrao Bangale [PW - 2] and
Prakash Waikule came on the spot. PW - 2 [ Madhavrao Dhurpatrao
Bangale] provided water to the Deceased and tied the scarf to the
neck of Deceased. Prakash Waikule tied the scarf to the head of
PW - 1 [Ganesh Bapurao Waikule]. The wife of PW - 1 [Ganesh
Bapurao Waikule] went for calling the people. They all were taken
to the Hospital by the Villagers. In the Hospital, she came to know
that, her husband died. Her brother-in-law - PW - 1 [Ganesh
19 Criappeal-871-2023.odt
Bapurao Waikule] and mother-in-law - PW - 4 [Sakhubai Bapurao
Waikule] were taken to Nanded and she was treated at Kalamnuri.
17. The above evidence of PW - 6 [Nandabai Shivanand Waikule]
is excluding the improvements or omissions from / in her statement
given to the Police. Her above discussed evidence remained
unshaken in the cross-examination.
18. The evidence of PW - 2 [Madhavrao Dhurpatrao Bangale]
shows that, he was the resident of village Palodi. His agricultural
land was adjacent to the land of Accused persons. He knew PW - 1
[Ganesh Bapurao Waikule] and Deceased. He deposed that, the
incident took place on 01/06/2015. When he was working in his
agricultural feld in between 8.00 a.m. to 8.30 a.m., the wife of
Deceased PW - 6 [Nandabai Shivanand Waikule] and wife of PW - 1
[Ganesh Bapurao Waikule] came to him running and asking for help
saying that, the persons belonging to Satbhai family were beating
their husbands. He rushed towards Akhada [place of keeping
cattles] and Prakash Waikule followed him. He saw Accused No.1
[Subhash Shankerappa Satbhai], Accused No.6 [Shankerappa
Subhanji Satbhai], Accused No.3 [Shivanand Shankerappa Satbhai],
Accused No.2 [Gajanan Shankerappa Satbhai], Accused No.5
[Ramesh Subhash Satbhai] and other two [2] persons, who had
covered their faces with scarfs and three [3] ladies belonging to the
Satbhai family. He saw the said Accused persons running towards
the village. PW - 1 [Ganesh Bapurao Waikule] was in an injured
condition having injuries on head, forearm, leg and foot. The
Deceased was lying in an injured condition with injuries on his neck
and neck was half cut. He gave phone call to his brother and asked
him to send the vehicle. He along with his brother and others
shifted the injured to the Hospital. Shivanand Bapurao Waikule
[Deceased] was reported by the Doctor to be dead.
20 Criappeal-871-2023.odt
19. Though he was cross-examined, nothing has come so as to
discard his above referred evidence. Some omissions /
improvements are brought in his cross-examination, which are of
trivial nature and in no way afect his testimony. His acquaintance
with the witnesses and the Accused is quite natural, as he was the
resident of same village and having his agricultural land adjacent to
the land of Accused.
20. The evidence of PW - 3 [Dr. Rajesh Babasaheb Mudikar]
shows that, he was serving as the Medical Ofcer in Rural Hospital,
Kalamnuri. On 01/06/2015, he was on duty in the Hospital at about
11.00 a.m. PW - 1 [Ganesh Bapurao Waikule], PW - 4 [ Sakhubai
Bapurao Waikule] and Shivanand Bapurao Waikule [Deceased] were
brought to the Hospital by their relatives. On examination, he
found Shivanand Bapurao Waikule to be dead.
21. On examination of PW - 1 [Ganesh Bapurao Waikule], he
found the following injuries on his person :-
"1- Incised wound 7 x 3 x 3 cm. On right leg lower part
anterior aspect.
2- Incised wound 3 x 2 x 2 cm. On left upper part anterior
aspect.
3- Incised wound 7 x 2 bone deep cm. On mid frontal
region.
4- Incised wound 5 x 3 x 3 cm. On right leg upper part
anterior aspect.
5- Incised wound 2 x 1 x 1 cm. on right thumb palm surface.
6- Incised wound 5 x 2 x 2 cm. On left foot upper posterior
sole.
7- Incised wound 3 x 2 x 2 cm. On right forearm extensor
aspect.
8- Contusion 4 x 4 cm. On left side of chest over 6 to 8 ribs."
21.1 The above Injuries Nos.1 to 7 were simple and caused
within 24 hours, possible by hard and sharp object. Injury No.8 was
possible by hard object. Injury Nos.1 to 7 were also possible by
koyta. Injury No.8 was also possible by opposite side of axe. He
21 Criappeal-871-2023.odt
referred him to Civil Hospital at Hingoli. The Police provided the
copy of the prescription and C.T. Scan report, which revealed that,
Injury No.8 was grievous, as there was fracture of 6 th, 8th and 9th
ribs. Accordingly, he issued the Medico Legal Certifcate at Exhibit
- 85. It has come in the cross-examination that, Injury Nos.1 to 7
were also possible by knife.
22. He examined PW - 4 [Sakhubai Bapurao Waikule] and found
the following injuries on her person :
"1- CLW 3 x 1 x 1 cm. on frontal to parietal region on left
side.
2- Contusion 3 x 2 cm. On dorsal aspect of right writs."
22.1 The said injuries were simple and caused within 24
hours. Injury No.1 was possible by hard and blunt object and Injury
No.2 was possible by hard object. Injuries were also possible by
stick, stone and opposite side of axe. He referred her to Civil
Hospital at Hingoli. The Police supplied the copy of the
prescription and he found fracture of 'distal shaft of right wrist and
styloid process of right ulna'. There was cerebral contusion on left
parietal region of brain with post traumatic sub-archoined with
cerebral edema. The fracture injuries were grievous in nature. He
issued the Medico Legal Certifcate at Exhibit - 86. In the cross-
examination, it has come that, the injuries found on her person
were possible by fall on hard surface from bullock-cart.
23. His further evidence shows that, on 02/06/2015 i.e. on the
next day, PW - 6 [Nandabai Shivanand Waikule] was brought to the
Hospital for examination by relatives. On her examination, he
found the following injuries on her person :
"1- Contusion 3 x 2 cm. Just below left eye.
2- Contusion 3 x 3 cm. Middle one third of anterior aspect
of left eye."
22 Criappeal-871-2023.odt
23.1 The injuries were caused within 24 hours and simple in
nature and were possible by hard object. The Injuries were also
possible by stick, stone and opposite side of axe. He issued Medico
Legal Certifcation at Exhibit - 87.
24. Though in the cross-examination of the above referred
Medical Ofcer, it has come that, the Injury Certifcates at Exhibits
85 and 86 were issued on 15/07/2015 and at Exhibit - 87 on
14/07/2015, respectively, it would not afect the credibility of his
testimony, as his cross-examination shows that, the said certifcates
were issued pursuant to the letter dated 11/07/2015 received from
the Police. It has come in the cross-examination, in clear terms that,
he recorded the history of injuries found on the person of PW - 1
[Ganesh Bapurao Waikule] and PW - 4 [Sakhubai Bapurao Waikule].
The history recorded was that of assault.
25. Further evidence of PW - 3 [Dr. Rajesh Babasaheb Mudikar]
shows that, on the same day i.e. on 01/06/2015, he performed the
Postmortem on the body of Shivanand Bapurao Waikule [Deceased]
from 05.05 p.m. to 06.05 p.m. and he found the following external
injuries :-
"1 - Chop would over neck just below hairline horizontally
place and admesuring 4 x 2 cm. x Spinal cord deep
with fracture of spinous process of C-2 and C-3
vertebra.
2- Incised wound over center of scalp vertically placed
admeasuring 6 x 3 x 2 cm.
3- Incised wound over lateral side of neck surrounding
right side of neck admeasuring 8 x 2 x 0.5 cm.
4- Chop wound over upper side of right buttock
vertically placed admeasuring 7 x 3 bone deep.
5- Incised wound over right leg just below knee joint
vertically placed admeasuring 10 x 3 x 2 cm.
23 Criappeal-871-2023.odt
6- Incised wound over lateral aspect of upper one third
of right thigh vertically placed and admeasuring 3 x 2
x 1 cm.
7- Incised wound left leg just below knee joint vertically
placed admeasuring 2 x 2 x 0.5 cm.
8- Contused abrasion over upper lateral part of left
shoulder 3 x 2 cm. Horizontally placed."
25.1 On internal examination, he found under scalp injury on
center of scalp vertically placed 6 x 2 x 2 cm. Brain, right and left
lungs, heart, liver and gall bladder, pancreas, supra-nails, spleen,
kidneys were found pale. He found chop wound over left of neck
just below hairline horizontally placed admeasuring 4 x 2 cm. Spinal
cord deep with fracture spinous process of C-2 and C-3 vertebra
with hemi section of spinal cord. The injuries were ante-mortem
and Deceased probably died within four hours of his last meal. On
postmortem, he opined the cause of death as "neurogenic as well
hemorrhagic shock due to injury to spinal cord with other multiple
injuries". He issued the provisional cause of death certifcate at
Exhibit - 88 and the Postmortem Report at Exhibit - 89.
25.2 Further evidence of PW - 3 [Dr. Rajesh Babasaheb
Mudikar] shows that, Injury Nos.1 and 4 were possibly by axe and
Injury Nos.2, 3, 5, 6 and 7 were possible by hard and sharp object.
Injury No.8 was possible by hard object. The incised wound was
possible by koyta. The stone and stick were the hard object. Injury
No.1 was sufcient to cause death in ordinary course of nature.
Injury Nos.4 to 8 were not fatal injuries. There was no fracture to
skull associated with Injury No.2. Injury No.3 was not possible by
axe. Injury No.8 was simple. Injury Nos.2, 3, 5, 6 and 7 were also
possible by knife.
26. Further evidence of PW - 3 [Dr. Rajesh Babasaheb Mudikar]
shows that, on the same day i.e. 01/06/2015 at about 9.30 a.m.,
24 Criappeal-871-2023.odt
Accused No.1 [Subhash Shankerappa Satbhai], Accused No.2
[Gajanan Shankerappa Satbhai], Accused No.3 [Shivanand
Shankerappa Satbhai], Accused No.5 [Ramesh Subhash Satbhai],
Accused No.6 [Shankerappa Subhanji Satbhai] and Accused No.7
[Mankarnabai Subhash Satbhai] were brought to the Hospital by
their relatives in injured condition. He examined them all.
27. On examination of Accused No.1 [Subhash Shankerappa
Satbhai], he found the following injuries :
"1- Contusion 3 x 3 cm. On forehead over left eye brow.
2- Contusion 3 x 2 cm. On right temporal region of scalp.
3- Abrasion 1 x 0.5 cm. On medical aspect of middle one
third of right leg."
27.1 The injuries were simple in nature and caused within 6
hours. Injury Nos.1 and 2 were possible by hard object and Injury
No.3 was possible by hard and sharp object. He issued the Medico
Legal Certifcate at Exhibit - 81.
28. On examination of Accused No.2 [Gajanan Shankerappa
Satbhai], he found the following Injury :
"1- CLW 0.5 x 0.5 cm. on central region of forehead."
28.1 The injury was simple in nature and caused within 6
hours. It was possible by hard object. He issued the Medico Legal
Certifcate at Exhibit - 80.
29. On examination of Accused No.3 [Shivanand Shankerappa
Satbhai], he found the following injuries.
"1- CLW 3 x 1 x 0.5 cm. On right temporal region of scalp.
2- Contusion 2 x 2 cm. On middle of right arm lateral
aspect."
29.1 The injuries were simple in nature and caused within 6
hours and may be possible by hard and blunt object. He issued the
Medico Legal Certifcate Exhibit - 79.
25 Criappeal-871-2023.odt
30. On examination of Accused No.5 [Ramesh Subhash Satbhai],
he found the following injury :
"1- Contusion 3 x 3 cm. On left hand hypothenar region."
30.1 The injury was simple in nature and caused within 6
hours and may be possible by hard object. He issued the Medico
Legal Certifcate at Exhibit - 83.
31. On examination of Accused No.6 [Shankerappa Subhanji
Satbhai], he found the following injuries.
"1- CLW 3 x 1 x 0.5 cm. On left temporal region of scalp.
2- Abrasion 2 x 0.5 cm. On dorsal aspect of left hand."
31.1 The injuries were simple in nature and caused within
[six] 6 hours. They were possible by hard and sharp object. He
issued the Medico Legal Certifcate at Exhibit - 82.
32. On examination of Accused No.7 [Mankarnabai Subhash
Satbhai], he found the following Injury :-
"1- Contusion 5 x 2 cm. On back of trunk on left side."
32.1 The injury was simple in nature and caused within 6
hours and was possible by hard object. He issued the Medico Legal
Certifcate at Exhibit - 84.
33. The evidence of PW - 5 [Dr. Santosh Virchand Porwal] shows
that, since 2005, he was serving at Yashoda Hospital, Nanded as
Medical Ofcer. On 01/06/2015, PW - 1 [Ganesh Bapurao Waikule]
and his mother - PW - 4 [ Sakhubai Bapurao Waikule] were brought
to the Hospital with injuries on their person. He examined them
and got their C.T Scan done and admitted them for treatment.
34. On examination of PW - 1 [Ganesh Bapurao Waikule], he
found the following injuries :-
26 Criappeal-871-2023.odt
"1- Sutured wound over mid frontal region admeasuring
5 cm. Oblique.
2- Abrasion over right forearm posterior surface
middle third admeasuring 3 x 3 cm.
3- Sutured wound over right leg upper third anterior
surface admeasuring 5 cm. Transverse.
4- Sutured wound over left leg upper third anterior
surface 5 cm. Oblique.
5- Abrasion over left chest posteriorly admeasuring 3 x
3 cm.
6- Abrasion over right leg lower third anterior surface
admeasuring 3 x 3 cm.
7- On X-ray of chest there found fracture of left 8 th 6th
and 9th ribs posteriorly with right sided pleural
efusion is noted."
34.1 The aforesaid injuries Nos.2, 5 and 6 were fresh, simple
in nature and were possible by hard and blunt object. Injury No.7
was fresh, grievous in nature and was possible by hard and blunt
object. He issued the Medico Legal Certifcate at Exhibit - 95.
35. On examination of PW - 4 [Sakhubai Bapurao Waikule], he
found the following injuries:
"1- Sutured wound over mid frontal region admeasuring 5 cm.
Oblique.
2- On X-ray of right wrist there found fracture of
crustal shaft of right radius with fracture styloid
process on right ulna.
3- From the report of C.T. Scan there found cerebral contusion of
left high parietal region with post traumatic arachnoid
hemorrhage with cerebral edema."
35.1 The injury Nos.2 and 3 were fresh, simple in nature and
were possible by hard and blunt object. He issued the Medico Legal
Certifcate at Exhibit - 96. Injury No.1 was possible by the use of
axe and other injuries were possible by stick.
36. The cross-examination could not create any dent in the
evidence of above referred Medical Ofcer.
27 Criappeal-871-2023.odt
37. The evidence of PW - 10 [Dinkar Baburao Kokare] shows that,
on 01/06/2015, the Police Ofcer Mr. Ravikant Amrut Sonune [PW -
15] called him in the Kalamnuri Police Station. From the Police
Station, he, Mr. Sonune and his stafs went to the spot of incident in
Village Palodi. There was one hut and one tin shed at the spot of
incident. There were blood stained clothes on the spot. The iron
and wooden cots were kept on the spot of incident. There was one
water reservoir. The Police prepared the Spot Panchanama, which
was read over to him and he along with the other panch signed on
the same. The Spot Panchanama at Exhibit - 114 is brought on
record. His evidence shows that, the Police collected the soil, blood
mixed soil, blood stained stones and stick from the spot. From the
cross-examination, it is seen that, the Spot Panchanama was not
seriously disputed. Nothing has come so as to discard the evidence
of this panch witness. His evidence gets corroboration from the
testimony of PW - 15 [Ravikant Amrut Sonune], who was the Police
Inspector at the Kalamnuri Police Station. His evidence shows that,
on 01/06/2015, he went to the spot of incident after the crime was
registered on the statement / report of PW - 1 [Ganesh Bapurao
Waikule] regarding the incident. Two panchas were summoned.
The Spot Pacnahnama at Exhibit - 114 was prepared and the
articles such as, blood stained stones, stick, soil and blood stained
soil came to be seized from the spot of incident. From the cross-
examination, it is seen that, the going of this Police Ofcer on the
spot and preparing the Spot Panchanama was not disputed.
38. Evaluation of the above referred evidence shows that, PW - 1
[Ganesh Bapurao Waikule], PW - 4 [Sakhubai Bapurao Waikule] and
PW - 6 [Nandabai Shivanand Waikule] were the eyewitnesses to the
incident. Since the Accused were known to them, there is no
question of establishing the identity. Though the evidence of PW -
28 Criappeal-871-2023.odt
1 [Ganesh Bapurao Waikule] in respect of the events prior to the
incident of assault are not taken into consideration being the
omissions, the evidence of PW - 4 [Sakhubai Bapurao Waikule] and
PW - 6 [Nandabai Shivanand Waikule] fnd corroboration in respect
of the incident of assault. The consistent evidence of PW - 4
[Sakhubai Bapurao Waikule] and PW - 6 [Nandabai Shivanand
Waikule] shows that, the Deceased and PW - 6 [Nandabai
Shivanand Waikule] were obstructed while they were proceeding
towards their agricultural feld. When PW - 1 [Ganesh Bapurao
Waikule] was informed about the same by the Deceased, PW - 1
[Ganesh Bapurao Waikule] and PW - 4 [Sakhubai Bapurao Waikule]
started towards the feld and they met the Deceased and PW - 6
[Nandabai Shivanand Waikule]. They all went ahead to question the
Accused / Appellants about their act of restraining the Deceased
from proceeding further. The evidence of PW - 2 [Madhavrao
Dhurpatrao Bangale] shows that, he reached on the spot of
incident after hearing hue and cry of the women witnesses and
when he reached the spot of incident, he saw the Deceased and
witnesses in an injured condition. Though these witnesses were
cross-examined, nothing has come so as to discard their evidence.
As earlier observed, their above discussed evidence is sans the
omissions / improvement.
39. By examining the Medical Ofcer, the Prosecution has proved
that, Shivanand Bapurao Waikule, who was the brother and son of
PW - 1 [Ganesh Bapurao Waikule] and PW - 4 [Sakhubai Bapurao
Waikule], respectively, succumbed to the injuries sufered in the
assault. The cause of death of Shivanand Bapurao Waikule is
proved. The Prosecution has clearly established that, the death of
Shivanand Bapurao Waikule as Homicidal. Through the medical
evidence, the Prosecution has proved the injuries on the person of
29 Criappeal-871-2023.odt
eyewitnesses i.e. PW - 1 [Ganesh Bapurao Waikule], PW - 4
[Sakhubai Bapurao Waikule] and PW - 6 [Nandabai Shivanand
Waikule]. It is needless to state that, the testimony of the injured
witnesses stands on higher pedestal. Soon after the incident, the
Crime was registered on the report of PW - 1 [Ganesh Bapurao
Waikule], recorded while he was in the hospital.
40. The above discussed medical evidence i.e. of PW - 3 [Dr.
Rajesh Babasaheb Mudikar] has proved the injuries on the
Accused / Appellants i.e. Accused No.1 [Subhash Shankerappa
Satbhai], Accused No.2 [Gajanan Shankerappa Satbhai], Accused
No.3 [Shivanand Shankerappa Satbhai], Accused No.5 [Ramesh
Subhash Satbhai], Accused No.6 [Shankerappa Subhanji Satbhai]
and Accused No.7 [Mankarnabai Subhash Satbhai]. The age of
injuries on the Appellants / Accused and that of the witnesses,
clearly relate them to the incident as deposed by the injured
eyewitnesses. The defence of the Accused / Appellants is that, the
injured witnesses were assaulted by the unknown persons, and
they intervened and therefore, they sufered the above referred
injuries on their person. In absence of any material in support of
the said defence, the said defence does not appear probable. The
spot of incident gets corroboration from the spot panch and the
Investigating Ofcer. The above discussed evidence on record is
cogent, convincing and acceptable. It is established beyond all
reasonable doubt by the Prosecution that the Deceased died due
to assault in the above referred incident and the eyewitnesses
sufered injuries in the above referred incident.
41. Learned Senior Advocate for the Appellants relied on the
following Judgments in support of his contention that, prejudice is
caused to the Accused / Appellants, as the Charge was framed with
30 Criappeal-871-2023.odt
the aid of Section 149 of IPC and the conviction is recorded for their
individual act.
1. Subran Alias Subramanian Vs. State of Kerala; 1993
AIR [SCW] 1014
2. Saddak Hussain Vs. State [NCT of Delhi] in CRL.A
717/2018
3. Suraj Pal Vs. State of Uttar Pradesh; 1955 AIR [SC] 419
4. Parshuram Vs. State of Madhya Pradesh; 2023 [4]
Crimes [SC] 173
5. Gurwinder Singh @ Sonu Etc. Vs. State of Punjab and
Another; 2018 AIR [SC] 2277
42. Learned Advocate appearing for the Informant, assisting the
Prosecution, relied on the following Judgments in support of the
contention that, no prejudice is caused to the Accused / Appellants.
1. Willie [William] Slaney Vs. State of M.P; AIR 1956 SC
116
2. Mala Singh & Ors. Vs. State of Haryana; 2019 AIR [SC]
1026
43. We have gone through the said Judgments. In the case on
hand, admittedly, the Charge was framed with the aid of Sections
147, 148 and 149 of IPC and the Appellants / Accused are acquitted
of the said Charge. The Charge clearly spelt out the incident with
required details. The witnesses examined by the Prosecution were
cross-examined by the learned Advocates representing the
Appellants / Accused at considerable length. The witnesses were
examined by the Prosecution includes the eyewitnesses to the
incident. The Accused / Appellants were fully aware of the case
that was being put against them. The incriminating evidence was
put to the Accused / Appellants in the statement recorded under
Section 313 of Cr.PC. Section 464 of Cr.PC provides that, no fnding
sentence or order by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no Charge was framed or
31 Criappeal-871-2023.odt
on the ground of any error, omission or irregularity in the charge
including any misjoinder of charges, unless, in the opinion of the
Court of appeal, confrmation or revision, a failure of justice has in
fact been occasioned thereby. Except bare argument, there is
nothing to show that, prejudice was caused to the Accused /
Appellants due to their conviction, despite acquittal for the above
referred ofences punishable under Sections 147, 148 and 149 of
IPC. In the light of above reasons, we are of the considered view
that, no failure of justice has occasioned. Thus, we are unable to
accept the contention in respect of prejudice.
44. The evaluation of the above referred evidence of the injured
eyewitnesses unequivocally established that, the Appellants /
Accused had not come with the preparation to assault the
Deceased and the witnesses. It was not a premeditated attack.
There is absolutely no evidence to show that, the Accused /
Appellants were already armed and lodged the attack as soon as
the Deceased and injured eyewitnesses had come. What the
evidence unequivocally goes to show is that, the Deceased and the
injured eyewitnesses had gone to the place of incident to question
the Accused / Appellants for restraining the Deceased and PW - 6
[Nandabai Shivanand Waikule] from going to the agricultural feld
and due to the quarrel, the incident of assault took place.
Reference can be made to the cross-examination of PW - 1 [Ganesh
Bapurao Waikule], wherein, it has come that, it was a sudden
incident. The cross-examination of PW - 4 [Sakhubai Bapurao
Waikule] shows that, there was no incident of beating prior to the
incident. The evidence of above referred injured eyewitnesses
shows that, the weapons were removed from the hut. This
evidence on record shows that, the death of Shivanand Bapurao
Waikule, though Homicidal, will not fall within the ambit of Section
32 Criappeal-871-2023.odt
300 of IPC, which is the ofence of Murder. The act of Homicidal
Death would fall within Exception - 4 of Section 300 of IPC, which
reads as under :-
"Exception 4. - Culpable homicide is not murder if it is committed
without premeditation in a sudden fght in the heat of passion upon a
sudden quarrel and without the ofender having taken undue
advantage or acted in a cruel or unusual manner. The explanation to
the said exception speaks that, it is immaterial in such cases which
party ofers the provocation or commits the frst assault."
44.1 Considering the evidence as discussed above, in our
considered view, the learned Trial Court has erred in recording the
conviction for the ofence punishable under Section 302 of IPC.
45. The above evidence of the injured eyewitnesses completely
rules out the unlawfully assembly by the Accused / Appellants.
True it is that, it is settled position under the law that, an assembly
can subsequently become unlawful. The Accused / Appellants were
already present on the spot of incident. It is only after the
Deceased and injured had gone to the spot of incident, the incident
of assault took place suddenly out of quarrel. The evidence do not
show that, the Accused / Appellants shared common object to kill
the Deceased [Shivanand Bapurao Waikule] and cause injury to the
witnesses. The evidence on record clearly shows absence of
essential ingredients for the ofence punishable under Sections
147, 148 and 149 of IPC and therefore, it will have no application to
the case on hand. The learned Trial Court has rightly acquitted the
Accused / Appellants for the ofence punishable under Sections
147, 148 and 149 of IPC.
46. The above discussed evidence of PW - 4 [Sakhubai Bapurao
Waikule] and PW - 6 [Nandabai Shivanand Waikule] is consistent in
respect of assault by Accused No.1 [Subhash Shankerappa Satbhai]
by koyta on the backside of neck / neck of Deceased and assault by
Accused No.11 [Suresh Narayan Sangekar] by koyta on the backside
33 Criappeal-871-2023.odt
of waist / waist of the Deceased. As regards the assault by Accused
No.2 [Gajanan Shankerappa Satbhai], evidence of PW- 4 [Sakhubai
Bapurao Waikule] shows assault by axe on calf of Deceased
[Shivanand Bapurao Waikule] and evidence of PW - 6 [Nandabai
Shivanand Waikule] shows assault by axe on the head of Deceased
[Shivanand Bapurao Waikule]. The medical evidence shows incised
wound over center of scalp of Deceased [Shivanand Bapurao
Waikule]. Thus there is corresponding injury of assault by Accused
No.2 [Gajanan Shankerappa Satbhai] on the head of Deceased
[Shivanand Bapurao Waikule]. Though evidence of PW - 4
[Sakhubai Bapurao Waikule] shows that, Accused No.4 [Ravi
Subhash Satbhai] assaulted the Deceased by koyta on the head
from left side, there is no corresponding injury on the left side of
head of Deceased [Shivanand Bapurao Waikule] as can be seen
from the medical evidence. Further, PW - 6 [Nandabai Shivanand
Waikule] is completely silent on the point of assault by Accused
No.4 [Ravi Subhash Satbhai] over Deceased [Shivanand Bapurao
Waikule]. There is no corroboration at all to the testimony of PW -
4 [Sakhubai Bapurao Waikule] attributing assault by PW - 4
[Sakhubai Bapurao Waikule] on Deceased.
47. The medical evidence shows that, Injury No.1 on Deceased
was sufcient to cause death in ordinary course of nature. The said
injury is attributed to Accused No.1 [Subhash Shankerappa Satbhai]
in the consistent evidence of PW - 4 [Sakhubai Bapurao Waikule]
and PW - 6 [Nandabai Shivanand Waikule]. The medical evidence
shows that, there was no fracture to skull associated with Injury
No.2. Injury No.3 was 0.5 cm deep and Injury Nos.4 to 8 were not
fatal injuries. From this, it is clear that, fatal blow was lodged by
Accused No.1 [Subhash Shankerappa Satbhai]. The weapon used,
the body part on which assault is lodged by Accused No.1 [Subhash
34 Criappeal-871-2023.odt
Shankerappa Satbhai] and the medical evidence shows the
intention of Accused No.1 [Subhash Shankerappa Satbhai] to cause
such bodily injury as is likely to cause death.
48. The evidence of eyewitnesses shows that, injuries on PW - 1
[Ganesh Bapurao Waikule] were the result of assault by Accused
No.1 [Subhash Shankerappa Satbhai], Accused No.2 [Gajanan
Shankerappa Satbhai], Accused No.3 [Shivanand Shankerappa
Satbhai], Accused No.4 [Ravi Subhash Satbhai] and Accused No.11
[Suresh Narayan Sangekar]. Though PW - 1 [Ganesh Bapurao
Waikule] deposed of throwing big stone on him by Accused No.5
[Ramesh Subhash Satbhai], the medical evidence do not relate the
injuries sufered by him with stone. Further evidence of other
eyewitnesses i.e. PW - 4 [Sakhubai Bapurao Waikule] and PW - 6
[Nandabai Shivanand Waikule] nowhere show assault on PW - 1
[Ganesh Bapurao Waikule] by Accused No.5 [Ramesh Subhash
Satbhai].
49. As regards the injuries of PW - 4 [Sakhubai Bapurao Waikule]
are concerned, the evidence of Doctor shows that, the injuries on
her person were possible by fall on hard surface. It has come in the
evidence of PW - 4 [Sakhubai Bapurao Waikule] that, she fell down.
The evidence of PW - 1 [Ganesh Bapurao Waikule] shows that, his
mother [PW - 4] fell down in the incident and there were stones on
the spot of incident, as it was hilly area. Thus, it cannot be said with
all certainty that, the injuries on PW - 4 [Sakhubai Bapurao
Waikule]] were the result of the assault.
50. As regards the injuries on PW - 6 [Nandabai Shivanand
Waikule] are concerned, there is no clear evidence, as her evidence
that, she was assaulted by Accused No.9 [Pratima Gajanan Satbhai]
and Accused No.10 [Jyoti Shivanand Satbhai], was an improvement/
35 Criappeal-871-2023.odt
omission from / in her previous statement. More so, the defence
evidence of DW - 1 [Dr. Madhav Sambhaji Vibhute], who was the
Medical Ofcer in Rural Hospital, Umari, Taluka Umari, District
Nanded, proved that, PW - 10 [Jyoti Shivanand Satbhai] had come
to the Hospital on 30/05/2015 at about 11.55 a.m. with the history
of fever since last seven [7] days and she was admitted in the
Hospital till 8.00 a.m. of 04/06/2015. The medical papers are
brought on record in the evidence of this witness. The incident is
dated 01/06/2015. Therefore, the presence of Accused No.10
[Jyoti Shivanand Satbhai] on the spot at the time of incident is
rendered doubtful.
51. It is true that, it has come in the evidence of PW - 17 [Mukund
Ramrao Deshmukh], who was the Police Inspector at Kalamnuri
Police Station and who carried some part of investigation, that
Accused No.11 [Suresh Narayan Sangekar ] was working in his ofce
on 01/06/2015, will not by itself sufcient to hold that the Accused
No.11 [Suresh Narayan Sangekar] was not present on the spot of
incident, as the incident is of morning hours and not during ofce
hours. Except this, no other material is brought on record by the
defence to show that, Accused No.11 [Suresh Narayan Sangekar ]
was at his ofce at the time of incident.
52. The other evidence is that of PW - 7 [Vijay Deosing Chavan],
who acted as the panch witness for discovery and seizure of two [2]
axe, one [1] koyta and one [1] stick at the instance of Accused No.7
[Mankarnabai Subhash Satbhai]. As her evidence in respect of her
active participation in the assault is not proved, the said discovery
at her instance would be of no assistance for the Prosecution.
There is evidence of PW - 8 [Anil Hariharrao Sarode], who acted as
panch for discovery and seizure of one [1] axe at the instance of
36 Criappeal-871-2023.odt
Accused No.2 [Gajanan Shankerappa Satbhai]. His evidence
nowhere shows that, the said axe was stained with blood. The CA
reports at Exhibits - 195 and 197 shows that, the blood group of
Deceased [Shivanand Bapurao Waikule] and Accused No.2 [Gajanan
Shankerappa Satbhai] was of the similar group i.e. "O". Therefore,
the detection of blood of group "O" on axe [Article - 14] and human
blood on axe [Article-13] would be of no assistance to the
Prosecution.
53. PW - 11 [Kanta Bapurao Bedre [Patil]], who was examined as
panch witness, did not support the case of Prosecution. PW - 12
[Shivaji Purabhinath Ghogre] was the Police Constable, who carried
muddemal to the Chemical Analyzer. PW - 13 [Niranjan Tanhaji
Sataw] and PW - 14 [Kishan Yadavrao Dhengle] are the
Photographers, who clicked the photos during the course of
investigation. PW - 15 [Ravikant Amrut Sonune], PW - 16
[Anantkumar Bapurao Waghmare] and PW - 17 [Mukund Ramrao
Deshmukh] were the Police Ofcers, who investigated the Crime
and fled Charge-sheet, supplementary Charge-sheet.
54. The evaluation of above referred evidence proved that,
Accused No.1 [Subhash Shankerappa Satbhai] is liable for causing
Homicidal Death of Deceased not amounting to Murder and his act
would fall within the ambit of Section 304 [Part-I] of IPC. Accused
No.1 [Subhash Shankerappa Satbhai] is behind the bars for a period
of nine [9] years, fve [5] months and eighteen [18] days. The
punishment provided for the ofence punishable under Section 304
[Part-I] of IPC is imprisonment for life or imprisonment of either
description for a term which may extend to ten [10] years and shall
also be liable to fne. Accused No.1 [Subhash Shankerappa Satbhai]
has undergone the imprisonment for a period of little short of ten
[10] years. We, therefore, sentence him to sufer imprisonment for
37 Criappeal-871-2023.odt
the period which he has undergone and maintain the amount of
fne and default sentence imposed by the learned Trial Court.
55. The acts of Accused No.2 [Gajanan Shankerappa Satbhai] and
Accused No.11 [Suresh Narayan Sangekar] for assault on the
Deceased would attract the ofence punishable under Section 324
of IPC, which pertains to voluntarily causing hurt by dangerous
weapons or means. The punishment provided for the said ofence
is imprisonment of either description for a term which may extend
to three [3] years, or with fne, or with both. Accused No.2 [Gajanan
Shankerappa Satbhai] is behind the bars for a period of nine [9]
years, fve [5] months and eighteen [18] days. Accused No.11
[Suresh Narayan Sangekar] is behind the bars for a period of six [6]
years, three [3] months and twenty fve [25] days. We, therefore,
sentence Accused No.2 [Gajanan Shankerappa Satbhai] and Accused
No.11 [Suresh Narayan Sangekar] to sufer imprisonment for a
period of one [1] year with fne of Rs.5000/- each, in default, to
sufer Rigorous Imprisonment for three [3] months.
56. As regards the assault and injuries on PW - 1 [Ganesh
Bapurao Waikule] are concerned, Accused No.1 [Subhash
Shankerappa Satbhai], Accused No.2 [Gajanan Shankerappa
Satbhai], Accused No.3 [Shivanand Shankerappa Satbhai], Accused
No.4 [Ravi Subhash Satbhai] and Accused No.11 [Suresh Narayan
Sangekar] would be liable for punishment for the ofence
punishable under Section 324 of IPC. The grievous injuries in the
nature of fractures to ribs of PW - 1 [Ganesh Bapurao Waikule] is
not corresponding to assault by any of the said Accused. Accused
No.3 [Shivanand Shankerappa Satbhai] is behind the bars for a
period of nine [9] years, fve [5] months and twenty two [22] days.
38 Criappeal-871-2023.odt
Accused No.4 [Ravi Subhash Satbhai] is on bail and was behind the
bars for a period of one [1] month and eleven [11] days. We,
therefore, sentence Accused No.1 [Subhash Shankerappa Satbhai],
Accused No.2 [Gajanan Shankerappa Satbhai], Accused No.3
[Shivanand Shankerappa Satbhai], Accused No.4 [Ravi Subhash
Satbhai] and Accused No.11 [Suresh Narayan Sangekar] to sufer
Imprisonment for a period of one [1] month with fne of Rs.5000/-
each, in default, to sufer imprisonment for three [3] months.
57. As regards the Accused i.e. Accused No.5 [Ramesh Subhash
Satbhai], Accused No.6 [Shankerappa Subhanji Satbhai], Accused
No. 7 [Mankarnabai Subhash Satbhai], Accused No.8 [Hari Santosh
Hingankar], Accused No.9 [Pratima Gajanan Satbhai] and Accused
No.10 [Jyoti Shivanand Satbhai] are concerned, they are entitled for
acquittal.
58. Resultantly, the Appeals fled by the Appellants / Convicts are
partly allowed. The Appeal fled by the Informant and Application
for leave to Appeal by State are liable to be dismissed. Resultantly,
we proceed to pass the following order :-
ORDER
a] The Criminal Appeal Nos.565/2018, 563/2018, 540/2018 and
76/2024 are partly allowed.
b] The conviction and sentence recorded by the learned Trial
Court for the ofence punishable under Section 302 of IPC against
Accused No.1 [Subhash Shankerappa Satbhai], Accused No.2
[Gajanan Shankerappa Satbhai], Accused No.3 [Shivanand
Shankerappa Satbhai] and Accused No.11 [Suresh Narayan
Sangekar] is quashed and set aside. They are acquitted of the
same. Instead,
39 Criappeal-871-2023.odt
[b-i] Accused No.1 [Subhash Shankerappa Satbhai] is
convicted for the ofence punishable under Section
304 [Part-I] of IPC and is sentenced to sufer
imprisonment for the period, which he has already
undergone i.e. nine [9] years, fve [5] months and
eighteen [18] days, with fne of Rs.25000/- [Twenty Five
Thousand Only], in default, to sufer imprisonment for
one [1] year. The fne amount is paid. Thus, he be set at
liberty forthwith, if not required in any other ofence.
[b-ii] The Accused i.e. Accused No.2 [Gajanan Shankerappa
Satbhai] and Accused No.11 [Suresh Narayan Sangekar]
are convicted for the ofence punishable under Section
324 of IPC and sentenced to sufer Imprisonment for a
period of one [1] year and to pay fne of Rs.5000/-[Five
Thousand] each, in default, to sufer Imprisonment for
three [3] months. As they have already undergone the
said period of imprisonment and paid the fne, they be
set at liberty forthwith, if not required in any other
ofence.
c] The conviction recorded by the learned Trial Court against
Accused No.1 [Subhash Shankerappa Satbhai], Accused No.2
[Gajanan Shankerappa Satbhai], Accused No.3 [Shivanand
Shankerappa Satbhai], Accused No.4 [Ravi Subhash Satbhai]
and Accused No. 11 [Suresh Narayan Sangekar] for the ofence
punishable under Section 324 of IPC is maintained. They are
sentenced to sufer Imprisonment for a period of one [1] month
with fne of Rs.5000/- [Five Thousand] each, in default, to sufer
Imprisonment for three [3] months. As they have already
undergone the said period of imprisonment and the fne is paid, the
Accused No.1 [Subhash Shankerappa Satbhai], Accused No.2
40 Criappeal-871-2023.odt
[Gajanan Shankerappa Satbhai], Accused No.3 [Shivanand
Shankerappa Satbhai] and Accused No. 11 [Suresh Narayan
Sangekar] be set at liberty forthwith, if not required in any other
ofence. The Accused No.4 [Ravi Subhash Satbhai] is on Bail. His
Bail Bond stands cancelled.
d] The Accused i.e. Accused No.6 [Shankerappa Subhanji
Satbhai] and Accused No.9 [Pratima Gajanan Satbhai] are acquitted
for the ofence punishable under Section 323 of IPC. The Bond
executed by them for release on probation as per the order of
learned Trial Court stands cancelled. The amount of compensation
paid by them as per the order of learned Trial Court, be refunded.
e] The fne amount imposed on the convicted Appellants be
adjusted from the fne amount paid by them pursuant to the order
of learned Trial Court and remaining amount, if any, be refunded.
f] The order of acquittal passed by the learned Trial Court is
maintained.
g] The Muddemal be dealt with as directed by the learned Trial
Court.
h] Criminal Appeal No.518/2020 and Application for leave to fle
Appeal by State No.91/2020 are dismissed.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 22/11/2024 17:17:22