Bombay High CourtGajendra Kishan Dhage And Another vs The State Of Maharashtra on 11 January, 2018Author:T.V. NalawadeBench:T.V. NalawadeCri. Appeal No. 342/2013
                                                1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO. 342 OF 2013

1.       Gajendra s/o. Kishan Dhage,
         Age 40 years, Occu. Labour,
         R/o. Ridhora, Tq. Basmath,
         Dist. Parbhani.

2.       Hari @ Nana Kishan Dhage,
         Age 55 years, Occu. Labour,
         R/o. Ridhora, Tq. Basmath,
         Dist. Parbhani.

         (Presently they are in jail)                  ....Appellants.

                 Versus

         The State of Maharashtra                      ....Respondent.



Mr. S.P. Brahme, Advocate for appellants (Appointed).
Mr. V.S. Badakh, APP for respondent/State.


                                    CORAM   :   T.V. NALAWADE AND
                                                S.M. GAVHANE, JJ.
                                    Reserved on : 15/12/2017
                                    Pronounced on : 11/01/2018

JUDGMENT :[PER T.V. NALAWADE, J.]1)               The appeal is filed against judgment and order of Sessions

Trial No. 113/2010, which was pending in the Court of learned

Additional Sessions Judge, Parbhani. The appellants are convicted for

the offences punishable under sections 302, 324 r/w. 149 ofIndian

Penal Code(hereinafter referred to as 'IPC' for short) and also for the

offence punishable undersection 148of IPC. The sentence of

imprisonment for life is given and fine is also imposed on the::: Uploaded on - 11/01/2018                   ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20132appellants. Heard both the sides.2)               In short, the facts leading to the institution of present

proceeding, can be stated as follows :-The incident took place at Dhangar Takali, Tahsil Purna,

District Parbhani. Deceased Gyanoji was real brother of Uttam Dhage,

who gave report about the incident. Other deceased Sanjay was son of

Ganesh and Ganesh is also real brother of Uttam.3)               The first informant and his brothers have ancestral

agricultural land at village Ridhora, admeasuring 11 Acres. Adjacent to

this land, there is land of Kishan Dhage and others who are uncles of

first informant. Kishan Dhage and his sons were using the land of first

informant as a way and due to that, there was dispute between the

two sides. There were quarrels and the dispute was going on for about

10 years. Both the sides had given reports against each others due to

the dispute and the litigation was also pending in respect of that

dispute.4)               Due to harassment, which the first informant and his

brothers were suffering from Kishan and his sons, they left Ridhora

and they shifted to Dhangar Takali situated at the distance of 15 k.m.

from Ridhora. At Dhangar Takali also, there were relatives of Kishan::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20133Dhage like Kerba, Limbaji and they started quarreling with first

informant and his brothers, who had started living at Dhangar Takali.

Due to the dispute, accused Kerba, Uttam, Limbaji who were living at

Dhangar Takali, started saying that they would not allow the first

informant and his brothers to stay at Dhangar Takali also.5)               The incident in question took place on the night between

9.7.2002 and 10.7.2002. The first informant was sleeping in front of

his hut from Dhangar Takali with his family. Deceased Gyanoji was

sleeping in front of his hut. Sanjay and Sidharth, sons of Ganesh were

also sleeping in front of hut of Gyanoji as they were living with

Gyanoji. At some distance from the hut of Gyanoji, there is hut of

Latabai, daughter of Gyanoji and she was also sleeping outside of the

hut. It was summer and most of the persons were sleeping in front of

their respective huts.6)               At about 2.00 a.m. of 10.7.2002 the first informant woke

up as he felt that he was being assaulted. He noticed that in all nine

persons including the present appellants had come to them with

sticks, iron pipes and knife and they had started assaulting all the

persons from the side of first informant, who were sleeping in front of

their respective huts. Present appellant Gajendra assaulted the first

informant by using iron pipe. Gajendra assaulted Latabai also. Then::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20134they turned towards Sanjay and they assaulted Sanjay with sticks and

iron pipes and also by using knife and ultimately they threw a stone on

Sanjay. They assaulted Gyanoji also and when they confirmed that

both Gyanoji and Sanjay were dead, they left the place. Appellant No.

2 Hari alias Nana was present in aforesaid nine persons and he also

used iron pipe for assaulting the injured witnesses and the two

deceased persons. Both the appellants are sons of Kishan with whom

the first informant and his brothers had the dispute.7)               Dhangar Takali is situated at some distance from the

village. On that night, the first informant and other injured could not

take any steps. On the next day, Uttam Dhage approached Purna

police and gave report. The crime at C.R. No. 65/2002 came to be

registered at 10.15 a.m. of 10.7.2002 against the nine persons for

aforesaid offences and also for offence punishable undersection 120-Bof IPC.8)               Police prepared spot panchanama by visiting the place of

offence and the inquest was prepared on both the dead bodies. The

injured witnesses were referred to Government Hospital for medical

examination and they were medically examined. The P.M. was

conducted on the dead bodies of Gyanoji and Sanjay. They died due to

head injuries which had caused intracranial haemorrhage. Initially::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20135some of the accused were arrested and chargesheet was filed against

them. Present appellants and some other accused were shown as

absconding accused and chargesheet was filed against them undersection 299of Criminal Procedure Code (hereinafter referred to as

'Cr.P.C.' for short). Present appellants came to be arrested in the year

2010 and 2011 and supplementary chargesheets were filed against

them.9)               The case against five accused persons against whom

chargesheet was filed in the past was given number as Sessions Trial

No. 154/2002 and the present case is given different number viz.

Sessions Trial No. 113/2010. Charge was framed against both the

accused for aforesaid offences. Both the accused pleaded not guilty.

The evidence was already recorded undersection 299of Cr.P.C. and

this evidence recorded in previous case was adopted by the accused

persons. However, all the witnesses were recalled for giving an

opportunity to the accused persons to cross examine them. In all eight

witnesses are examined in the present matter. The Trial Court has

believed the direct evidence. There is corroboration of circumstantial

evidence to the direct evidence and so, conviction is given for

murdering both Gyanoji and Sanjay.10)              The direct evidence is given by first informant Uttam::: Uploaded on - 11/01/2018             ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20136Dhage (PW 3), Sidharth (PW 4) and Latabai (PW 5). Sidharth is real

brother of deceased Sanjay. The tenor of cross examination of all the

three witnesses shows that the accused did not dispute their presence

on the spot at the relevant time. Further, there is circumstantial check

to their versions which is being discussed at later stage.11)            The aforesaid relationship is not disputed by the defence.

Even the motive behind the crime is not disputed and that can be seen

from the tenor of cross examination made by the defence. The

defence itself has brought on record the particulars of dispute

including the names of persons who were involved in the dispute. It is

not disputed that first informant Uttam (PW 3) and his brothers were

having 11 Acres of agricultural land at Ridhora and due to the dispute

with Kishan, the father of present appellants, they had left Ridhora

and they had shifted to Dhangar Takali. It is also not disputed that

atleast three accused persons out of nine were living at Dhangar Takali

with their families and in the vicinity of the houses of Gyanoji, first

informant and also of Latabai. In the cross examination, it is brought

on the record that the dispute was going on for about 10 years.

Evidence is given by all the three eye witnesses that even at Dhangar

Takali, the side of the accused was giving threats to them as they

wanted to see that persons of complainant's side leave Dhangar Takali.::: Uploaded on - 11/01/2018                ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/2013712)            Evidence is given by Uttam (PW 3) that house of Gyanoji

was adjacent to his house at Dhangar Takali. In the cross examination,

it is brought on the record that the distance between two houses was

hardly 40 ft. Similarly, there was the house of Latabai at some

distance from the house of Gyanoji. Uttam (PW 3) has given evidence

that on that night he was sleeping with his family in front of his hut

and deceased Sanjay and witness Sidharth (PW 4) were sleeping in

front of house of Gyanoji as they were living with Gyanoji. He has

given evidence that Latabai (PW 5), daughter of Gyanoji was sleeping

in front of her house. Evidence of Latabai (PW 5) shows that her

husband was not at station and so, she was sleeping in front of her

hut as there was the company of her father.13)            Uttam (PW 3) has given evidence that on that night he

woke up due to bleating of she goats of Gyanoji. It is brought on the

record that Dhangar Takali is situated at some distance from village

and village persons cannot hear anything if any incident takes place at

Dhangar Takali. Evidence is given by all the three eye witnesses that

there were hardly 10 huts which included the three huts of witnesses

and huts were constructed on public property, Gayran. Uttam (PW 3)

has given evidence that when he woke up, he noticed that all the nine

accused were there. He has given evidence that all the accused

started giving beating to him and other persons who were sleeping in::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20138front of their respective huts. Uttam (PW 3) has given evidence that

present appellants, Gajendra and Nana were holding iron pipes and

they were using the iron pipes as weapons.14)            Uttam (PW 3) has given evidence that Gajendra gave blow

of iron pipe on his head and then Gajendra, Nana and some other

accused moved towards Sanjay and they assaulted Sanjay. He has

given evidence that other accused like Limbaji, Shivaji, Kerba, Pralhad

were holding sticks and they assaulted Sanjay by using sticks. He has

given evidence that when Sanjay tried to run away to escape, he was

held in front of house of Limbaji, one of the accused, and there, he

was given severe beating with aforesaid weapons. He has given

evidence that when Sanjay collapsed in front of house of Limbaji, the

accused turned back towards the house of Gyanoji and there, they

gave severe beating to Gyanoji. He has given evidence that Gajendra

had assaulted Latabai also. He has given evidence that ultimately,

accused Nana threw a stone on Gyanoji and when they saw that

Gyanoji and Sanjay were lying in injured condition, they left the place.

His evidence shows that dead body of Gyanoji was lying in front of hut

of Gyanoji and dead body of Sanjay was lying in front of house of

Limbaji. Evidence of Uttam (PW 3) shows that incident took place at

about 2.00 a.m. Uttam (PW 3) has given evidence that on that night

he and other injured could not take any steps and both Gyanoji and::: Uploaded on - 11/01/2018              ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20139Sanjay died before them. He has given evidence that there was no

vehicle available and after 6.00 a.m. they took steps and they went to

police station. He has given evidence that they reached the police

station at about 7.00 to 7.30 a.m. and after that police came to the

spot of offence. The report given by him to police is proved as Exh. 42.15)            The tenor of the cross examination of Uttam (PW 3) shows

that defence tried to create a probability that it was dark and it was

not possible for Uttam to see the accused and identify them. A weak

attempt was made to create a probability that some dacoits had

assaulted them. They were living in the huts and there were only few

goats of Gyanoji in front of hut of Gyanoji. Nothing was stolen. Though

one witness had stated before police that chilly powder was thrown at

them, but the name of one of accused viz. Rajendra was taken as a

person who had thrown the chilly powder at them during incident.

Thus, no probability is created by the defence that dacoits had

attacked them. It is not disputed that there was long standing enmity,

the enmity was there for more than 10 years and all the witnesses

knew accused for many years. Some accused were living at Dhangar

Takali itself and the accused are relatives of injured witnesses. In view

of these circumstances, even if it is presumed that it was no moon day

and there was no light of electricity, it was not difficult for the injured

witnesses to see and identify the assailants. Much of the cross::: Uploaded on - 11/01/2018                ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201310examination of Uttam (PW 3) and other eye witnesses is on this point

and omissions in that regard in their previous statements are brought

on record. These witnesses have given evidence that at that time,

there was the light and in the evidence of Latabai (PW 5), it is brought

on the record by the defence itself that there was facility of light at all

the three points like the house of first informant, the house of Gyanoji

and the house of Limbaji. Thus, no probability is created that there

was no opportunity to the injured witnesses to see the faces of

assailants and to identify them and it was the assault of some dacoits

and the accused persons were not involved in the assault.16)               Uttam (PW 3) is cross examined at length to point out the

omissions in F.I.R. in respect of some evidence given by him in the

Court and the omissions pointed out to him are as under :-(i)      He had not mentioned in the F.I.R. specifically that in

            the light of electricity he had seen the incident.(ii)     He had not stated specifically in the F.I.R. the blows

            were given to deceased Sanjay by some accused like accused

            Shivaji, Kerba, Uttam and Limbaji. In the present matter,

            other accused are involved and not these accused who had

            faced the trial in the past.(iii)    He had not stated in the F.I.R. that Sanjay tried to

            escape by running away, but he was caught in front of house::: Uploaded on - 11/01/2018                   ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201311of Limbaji. Considering the distance between the house of

            Limbaji and house of Gyanoji, it can be said that this

            omission is not that material as the persons who were at

            receiving end must have tried to run away when they

            noticed that nine persons were assaulting them.(iv)    He had not stated in the F.I.R. that after giving beating

            to Sanjay in front of house of Limbaji, all the accused

            persons had returned to the house of Gyanoji and in front of

            house of Gyanoji, assault was made on Gyanoji.(v)     He had not stated in the F.I.R. that accused Limbaji had

            given stick blow to Latabai.(vi)    He had not stated in the F.I.R. that accused Nana,

            present appellant had assaulted Baban.17)            In the cross examination of Uttam (PW 3), it is brought on

the record that one requires hardly half an hour to cover the distance

between the place of incident and police station if there is conveyance

like auto-rickshaw or other vehicle. Uttam (PW 3) has admitted that

he did not approach Police Patil of village and he directly went to Purna

Police Station on the next morning. He has admitted in his evidence

that he gave report to police at about 10.00 a.m.18)            Though there are aforesaid omissions in the F.I.R., it can::: Uploaded on - 11/01/2018                   ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201312be said that the omissions are not that material as only the particulars

of assault are given in evidence which were not there. When there is

charge for the offence of murder read withsection 149of IPC, the

prosecution is expected to prove the formation of unlawful assembly

and that, the accused was member of such unlawful assembly. If the

object of unlawful assembly was known and that was achieved, then

absence of such particulars cannot help the accused and accused

cannot get benefit of that circumstance. Due to this position of law,

this Court holds that aforesaid omissions have not affected the

credibility of Uttam (PW 3) and his evidence cannot be discarded.Further, there is circumstantial check to the evidence of Uttam (PW 3).

What is said in respect of evidence of Uttam can also be said in

respect of evidence given by other two injured witnesses like Sidharth

(PW 4) and Latabai (PW 5). Similar omissions in their previous

statements are brought on record by the defence.19)            Sidharth (PW 4), real brother of deceased Sanjay has

given evidence which is similar to the evidence of Uttam (PW 3). He

has given evidence that on that night he and Sanjay were sleeping in

front of hut of Gyanoji along with Gyanoji. He has given evidence that

the complainant was sleeping in front of his house with his family.20)            Sidharth (PW 4) has given evidence that in the night time::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201313when accused persons came to the place where they were sleeping,

accused Gajendra was armed with iron rod (iron pipe) and accused

Nana was armed with iron pipe. He has given evidence that accused

Gajendra, Nana and other accused assaulted Sanjay. He has given

evidence that Gajendra assaulted complainant and Latabai also. He

has given evidence that after that accused Nana and other accused

like Pralhad and Raju assaulted Gyanoji. He has given evidence that

Nana then threw big stone on the person of Gyanoji. His evidence

shows that the two injured died in their presence within half an hour

of the incident. He has given evidence that he sustained injuries in the

incident as he was assaulted and he was examined in the Government

Hospital.21)            In the evidence of Sidharth (PW 4), first time it was

suggested during cross examination that he and Latabai were not

present on the spot on that night. Though the evidence of Sidharth

shows that no house was allotted to him in that area by the

Government, he stuck to his version that he was living there and on

that night he was present on the spot of offence.22)            In the evidence of Uttam (PW 3) and Sidharth (PW 4), it is

brought on the record that eye sight of Gyanoji was weak and he was

virtually blind. Both the witnesses have given evidence that first::: Uploaded on - 11/01/2018                ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201314beating was given to Sanjay and then accused assaulted Gyanoji. It is

brought on the record in the evidence of Sidharth (PW 4) that his

statement was recorded by police between 11.00 a.m. and 12.00 noon

of the next morning and immediately after recording the statement of

first informant Uttam (PW 3). If he was not present there, his police

statement         would     not   have   been   recorded     immediately           after

registration of crime. Further, his name was mentioned in the F.I.R. In

the previous case when he was cross examined, it was suggested to

him that he started running away after starting of the incident and he

sustained injury due to fall. This suggestion was denied.23)               In the evidence of Sidharth (PW 4), the defence has also

brought on the record that due to the dispute at Ridhora, they had left

Ridhora and they had shifted to Dhangar Takali. In his evidence, it is

brought on the record that the complainant's side had dispute with

father of appellants, Kishan and one Bhujang. Bhujang is also close

relative of accused persons.24)               In the cross examination of Sidharth (PW 4), the omissions

in police statement are pointed out to him and they are as under :-(i)      He had not stated before police that on that night he

            and Sanjay were sleeping together in front of hut of Gyanoji

            and the complainant was sleeping in front of his own hut with::: Uploaded on - 11/01/2018                    ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201315his family.(ii)    He had not stated before police that when accused

            were giving beating to Sanjay, he had requested accused not

            to assault Sanjay.(iii)   He had not stated before police that accused Gajendra

            had assaulted Latabai with pipe.(iv)    He had not stated before police that accused Nana had

            assaulted Baban with pipe.25)            In the cross examination of Sidharth (PW 4) made in the

present matter, it is brought on the record that Uttam (PW 3) was

living at Rahul Nagar, Parbhani. This admission does not mean that on

that night Uttam was not present on the spot of incident. The evidence

of Uttam (PW 3) shows that he had hut there and on that night he was

present there. It is Uttam, who gave report to police immediately after

the incident and to Uttam, it is not suggested that he was not present

on the spot at the relevant time. On the contrary, it is suggested to

him that he could not see and identify the accused persons due to

darkness.26)            Latabai (PW 5) has given evidence which is similar to the

evidence of aforesaid two eye witnesses. Her evidence shows that her

hut is situated at the distance of 20-25 ft. away from the hut of::: Uploaded on - 11/01/2018                 ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201316Gyanoji. She has given evidence that at the relevant time, she was

living there and she was sleeping in front of hut as others were

sleeping there and her husband was not at home.27)               Latabai (PW 5) has given evidence that during the incident

accused Gajendra and Nana used iron rods. She has given evidence

that the accused first gave beating to Sanjay and after that they gave

beating to Gyanoji. She has given evidence that when she tried to

intervene, Gajendra gave beating to her by using iron rod. She has

given evidence against Nana also. She has given evidence that

accused Nana threw a stone on the person of Gyanoji.28)               In the cross examination of Latabai (PW 5), following

portions from her police statement were confronted to her and she has

denied those portions.(i)      She had stated to police that accused Rajendra had

            thrown chilly powder at them during incident.(ii)     She had stated before police that when witnesses

            raised hue and cry, the accused ran away.29)               Some omissions in the police statement of Latabai were

brought to her notice and they are as under :-(i)      She had not specifically stated before police the::: Uploaded on - 11/01/2018                   ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201317weapons which each accused was holding.(ii)    She had not stated before police that when she had

            tried to save Gyanoji, accused Nana had pulled her aside and

            then accused Gajendra had given blow of iron rod to her.30)            The observations are already made by this Court with

regard to the use of provision ofsection 149of IPC. The aforesaid

omissions cannot be called as material omissions and disowning some

portion from police statement by Latabai cannot affect her veracity.She has taken the names of all the accused and on that point, the

evidence is not hit by omission.31)            If the evidence of aforesaid three eye witnesses is

considered as a whole, it can be said that their evidence is consistent

with each other. They have given evidence on incident and also on

motive. They have described the weapons used by the accused

persons. In that background, the medical evidence can be considered.

The aforesaid discussion shows that the defence did not dispute that

Gyanoji and Sanjay were murdered.32)            Dr. Dwarkadas (PW 1) is examined to give evidence on

P.M. examination. He conducted P.M. examination on the dead body of

Gyanoji on 10.7.2002 between 2.20 p.m. and 3.10 p.m. He found::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201318rigor mortis over upper limbs and lower limbs, though on left lower

limb he could not notice rigor mortis as there was fracture to that

limb. He found injuries over legs, parietal region, occipital region. In

column No. 17 of Exh. 69, the injuries described are as under :-(i)      Right leg below knee was fractured at three places; one

            fracture was at upper 1/3rd tibia and two at middle 1/3rd.(ii)     Lacerated injuries below right knee three in numbers :(1)     1/2" x 1/2" x 1/4" deep,

                     (2)     1/2" x 1/2" x 1"

                     (3)     3/4" x 1/4" x 1/2"

            (iii)    Fracture of right radio ulna bone about its middle 1/3.

            (iv)     Lacerated injuries over posterior surface of right fore-

            arm two in numbers :

                     (1)     3/4" x 1/2" x 1/2" deep

                     (2)     1/2" x 1/2" x 1/2 " deep

            (v)      Lacerated injury on occipital area measuring about 1-

            1/2" x 1/2" x 3/4" deep.



33)               Dr. Dwarkdas (PW 1) has given evidence that aforesaidinjuries were antimortem in nature. The evidence of the doctor shows

that there was depressed fracture of skull at occipital region and due

to that, there was sub-dural haematoma and intracranial bleeding. The

death took place due to haemorrhagic shock due to intracranial::: Uploaded on - 11/01/2018                        ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201319bleeding and it was caused due to head injury mentioned in column

No. 17.34)               Dr. Dwarkdas (PW 1) conducted P.M. examination on the

dead body of Sanjay Dhage on 10.7.2002 between 12.00 p.m. and

2.15 p.m. The P.M. report is at Exh. 70. The evidence shows that rigor

mortis was present in upper and lower limbs. In column No. 17, he

has described the injuries and they are as under :-(i)      Lacerated injury on left temporal region measuring

            about 1-1/2 x 3/4 inches, there was corresponding fracture

            of under lining bone.(ii)     Contusion on back right loin region oblique in direction

            measuring about 2-1/2" x 1/2"(iii)    Contusion on right gluteal region transverse in direction3 x 1/2 inch,(iv)     Contusion on right gluteal region oblique in direction 2

            x 1/2 inch.(v)      Lacerated injury on posterior surface of it. Elbow

            vertical in direction measuring about 3/4" x 1/2", there was

            fracture of under line bone.(vi)     Lacerated injury on anteromedial surface of arm 1/2 x

            1/2".(vii) There was fracture of upper 1/3rd of tibia left.::: Uploaded on - 11/01/2018                    ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201320(vii-A)Lacerated injuries on anterior side of left leg, three in

            number measuring about 1/2 x 1/2 x 1-1/2", 2-1/2" x 1/4" x

            1 inch deep, 3 -1/4 x 1/4 x 1" deep, there was fracture of

            under line bone.(viii) Fracture of left tibia fibula.(ix)    Lacerated injury on anterior surface of right leg 1/2 x

            1/2 x 3/4" deep.(x)     Lacerated injuries below left knee two in number, 1/2 x

            1/2 x 1" deep and 3/4 x 1/2 x 1".(xi)    Lacerated injury on left knee 1" x 3/4" x 1/2" deep.35)            The evidence of Dr. Dwarkadas (PW 1) and Exh. 70 show

that there were injuries at temporal region, on back, at right gluetal

region, left elbow, right arm, left leg and right leg. All these injuries

were antimortem in nature. The evidence shows that due to the

injuries to the head, temporal region, there was depressed fracture of

skull at temporal bone and due to that there was sub-dural and

intracranial haemorrhage. Sanjay also died due to haemorrhagic shock

due to intracranial bleeding. It was caused due to aforesaid head

injury. In view of injuries described in Exhs. 69 and 70, it can be said

that the medical evidence is consistent with the oral evidence of

aforesaid three eye witnesses and it gives corroboration to the

versions of all the three eye witnesses.::: Uploaded on - 11/01/2018                     ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/20132136)            Spot panchanama at Exh. 100 is not disputed and it is also

proved in the evidence of Baliram (PW 8), Investigating Officer. This

document is consistent with the aforesaid oral evidence. Blood was

lying in front of house of of Limbaji where the dead body of Sanjay

was found. This spot was shown by the first informant. The distance

between the two dead bodies was mentioned as 100 ft. in the spot

panchanama. It is already observed that the distance between the

house of Gyanoji and first informant was around 40 ft. and on the

other side of house, there was the house of Latabai and after that

there was the house of accused Limbaji. The spot panchanama gives

general corroboration to the evidence of eye witnesses as the blood

was found at the place where the incident had taken place as per the

versions of three eye witnesses. There were even pieces of bangles

showing that Latabai was involved in the incident. Hand sketch map of

spot is there on Exh. 100.37)            Dr. Vithal (PW 2) is examined by prosecution to prove the

injury certificates issued in respect of witnesses Sidharth and Latabai.

The certificates are at Exhs. 74 and 73. This witness was attached to

Kantheshwar Primary Health Center. His evidence shows that he was

called to Purna Rural Hospital as one medical officer from Purna Rural

Hospital was on leave. One medical Officer Dr. Dwarkadas (PW 1), who::: Uploaded on - 11/01/2018                ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201322conducted P.M. examinations was available there. Much was argued

before the Trial Court and before this Court on this circumstance, but

nothing is brought on the record to create a probability that Dr. Vithal

was interested in the complainant's side. His evidence shows that two

injuries were found on the person of Latabai and she was referred to

Nanded Civil Hospital for further examination as there was suspected

fracture. He found three injuries on the person of Sidharth. The

injuries were caused by hard and blunt object and age of the injuries

was within 24 hours. Thus, there is medical evidence to show that

both these witnesses were present on the spot and they were also

assaulted.38)            Prosecution has examined two Investigating Officers like

Surendra (PW 7) and Baliram (PW 8). Both of them have given

evidence that present appellants were absconding and they came to

be arrested in the year 2010 and 2011. The appellants have only

denied that they were absconding and they have indirectly taken the

defence of alibi, but no material is produced in that regard. Accused

No.1 Pralhad, who was arrested is real brother of appellants and it

cannot be said that they had no knowledge that police were searching

for them and they were named in the F.I.R. In view of the provision ofsection 8of the Evidence Act, this conduct of absconding of appellants

is relevant and this circumstance can be used against the appellants.::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201323It is already observed that there was motive for the crime and the

complainant's        side     had   dispute    mainly    with     cousin,       father      of

appellants. As they came to be arrested many years after the date of

incident, there was no possibility of collecting other circumstantial

evidence like clothes having blood stains from them.39)            The learned counsel for appellants placed reliance on the

observations made by the Apex Court in the case reported as AIR

2000 (SC) 1416 [Nirmal Singh Vs. State of Haryana]. The Apex

Court has discussed the provision ofsection 299of Cr.P.C. and the

purpose behind it. Present matter is on better footing and all the

witnesses, whose evidence was recorded undersection 299of Cr.P.C.

were available. These witnesses are cross examined by the learned

counsel appointed by the present appellants. The Apex Court has laid

down that in view of the provision ofsection 299of Cr.P.C. andsection

33of the Evidence Act, conviction can be based on the evidence

recorded in absence of the accused. Further, the previously recorded

evidence is accepted by the accused in the present matter.40)            Reliance was placed by the learned counsel for appellants

on other case reported asAIR 2009 (SCW) 3898 [Jayendra

Vishnu Thakur Vs. State of Maharashtra]. The facts of the

reported case were different. In the present matter, the witnesses::: Uploaded on - 11/01/2018                         ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201324were available and the evidence already recorded against other

accused is accepted by the present appellants.41)            The learned counsel for the appellants placed reliance on

some observations made by the Apex Court in the case reported as

AIR 2014 (SC)(Supp) 1564 [Vijay Ranglal Chourasia Vs. State

of Gujarat]. The case is onsection 299of Cr.P.C. and also on

evidence of test identification parade. In that case the High Court had

not addressed the point as to whether the evidence recorded in

previous case could have been transferred to the case against the

appellant and whether in absence of that evidence, there was any

other evidence against the appellant. The facts of the present matter

are totally different.42)            The discussion made above shows that there is more than

sufficient evidence against the present appellants to show that on that

night they were members of unlawful assembly and the object of

unlawful assembly was to assault the persons of complainant's side

and finish the persons of rival group. This object was achieved by

unlawful assembly and two murders were committed. The Trial Court

has held the appellants guilty of the offence punishable under section

302 r/w. 149 ofIPCfor committing two murders and also for the

offence punishable under section 324 r/w. 149 ofIPCfor causing::: Uploaded on - 11/01/2018               ::: Downloaded on - 12/01/2018 02:27:40 :::Cri. Appeal No. 342/201325injuries to aforesaid witnesses. They are also held guilty for the

offence punishable undersection 148of IPC as they were armed with

deadly weapons. This Court sees no reason to interfere in that finding.

Life imprisonment is given and as two murders were committed by the

unlawful assembly. This Court holds that all the relevant circumstances

are considered by the Court and proper punishment is given. Thus,

there is nothing for interference in the appeal. The appeal stands

dismissed. The fees of the counsel appointed by this Court to

represent the appellants is quantified as Rs.7,000/- (Rupees seven

thousand).[ S.M. GAVHANE, J.]         [T.V. NALAWADE, J.]




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