Ramdas Shamaji Chavan and Others vs State of Maharashtra

B.P. Dharmadhikari, J—In this appeal filed under Section 374 of the Code of Criminal Procedure, three accused seek quashing of judgment dated 12/10/2001 delivered by Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial No. 214/1999. They have been found guilty for offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs.2,000/- each or in default to suffer simple imprisonment for 15 days. They are also found guilty of offence punishable under Section 307 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/- or in default to suffer simple imprisonment for 15 days. They are acquitted of offence punishable under Section 201 read with Section 34 of the Indian Penal Code. This Court has enlarged them on bail while admitting the appeal on 3rd December, 2001.

The case of the prosecution in brief is, one Girjabai Ambore (PW-3) is having agricultural field Survey No. 270 at village Kohala. Dispute regarding it''s possession was going on between her and appellants Ramdas and Devidas. Ramdas and Devidas were cultivating that field since lifetime of their father Shamaji Chavan. At the time of incident, Udid, Cotton, Tur and Hybrid crops were standing in that field.

On the date of incident, i.e. on 05/09/1999 at about 10:00 a.m., Girjabai with the help of labour and in presence of her nephew Ashok Ingole (PW-2) had started harvesting Udid crops. At that time, complainant Dilip Bhowate, deceased Milind Talware and one Kamaldas Sawai came to that field. Between 10:30 to 11:00 a.m., accused Ramdas, Devidas and Prakash arrived there holding sickle and other sharp weapons. Devidas and Prakash started assaulting Milind with sickle. They gave blow of sickle on his neck, back and thigh. Accused Prakash assaulted complainant Dilip with spear. Dilip received bleeding injury. He then ran away towards locality and was chased by Prakash. Dilip informed incident to people present in village and went to his house and thereafter again came back to the spot of incident. People had carried Milind to the village. In a jeep, Milind and Dilip were taken to Rural Hospital, Ner. Doctor at Rural Hospital declared Milind dead. Complainant Dilip Bhowate then lodged his complaint in Police Station. The police registered Crime No. 170/1999 under Sections 302, 307 read with Section 34 of Indian Penal Code. After completing investigation, prosecution filed chargesheet in the Court of Judicial Magistrate First Class, Ner, who committed it to Sessions Court on 13/12/1999. On 29/03/2001, charge was framed and read over to accused. Accused pleaded not guilty and thereafter trial began.

Trial Court found that prosecution established that accused nos.1 to 3, in furtherance of their common intention, committed murder of Milind on 05/09/1999 between 10:30 to 11:00 a.m. with the help of sickle and spear and committed an offence under Section 302 read with Section 34 of the Indian Penal Code. It also found that accused were guilty of offence under Section 307 read with Section 34 of the Indian Penal Code, as they attacked complainant Dilip Bhowate by deadly weapon like sickle and spear.

Advocate Mr. A.S. Manohar on behalf of accused appellants has invited our attention to relevant evidence. He submits that there is absolutely no material against accused no.2 Devidas and his conviction is unsustainable. He has read out evidence of complainant Dilip, Ashok (PW-2), Girjabai (PW-3) and Sulochana w/o Ashok (PW-4) to demonstrate that their versions are not consistent and story narrated by them as eyewitnesses is far from truth. According to him, field was being cultivated by Ramdas and Devidas and as such Girjabai (PW-3) had no right to interfere with their possession or to harvest the Udid. According to him, narration of events by Dilip on one hand and by Girjabai and Ashok on other hand shows that it is Ashok (PW-2), who attacked deceased and to cover that attack, accused persons have been falsely implicated. He submits that 05/09/2009 was the day of election and deceased Milind was a sitting Sarpanch, while complainant Dilip was a member of Gram Panchayat, both of them, therefore, would not have left the village and gone to field of accused persons. He further submits that the alleged spot is not in disputed field and though sickle is not found, evidence of Dilip Landge (PW-6) on discovery of spear is legally unsustainable. He points out that the sequence in which weapons were searched or recovered also shows that said recovery under Section 27 of the Evidence Act is fabricated.

He has relied upon postmortem report submitted by Dr. Sanjay Jadhao (PW-7). He points out that as per material brought on record by prosecution, accused no.3-Prakash has attacked complainant Dilip with spear, while only sickle was used on deceased Milind. The description of weapons and comparison thereof with size of injury shows that none of the injuries are caused by the only weapon, which has been seized viz. spear. Said spear was never forwarded to Chemical Analyzer or Doctor and, hence, it''s discovery is irrelevant. Report of Chemical Analyzer at Exh.90 is also relied upon by him to show that no blood is detected on clothes of accused no.1Ramdas and accused no.3-Prakash.

Judgment reported at Kapildeo Mandal and Others Vs. State of Bihar, AIR 2008 SC 533 : (2008) CriLJ 730 : (2007) 13 JT 202 : (2007) 3 SCALE 562 : (2006) 12 SCC 99 : (2007) 12 SCR 668 : (2008) 1 UJ 71 delivered by the Hon''ble Apex Court is relied upon by him to urge that when medical evidence falsifies ocular evidence primacy needs to be given to medical evidence.

Another judgment of the Hon''ble Apex Court reported at Gangabhavani Vs. Rayapati Venkat Reddy and Others, (2013) 9 AD 493 : AIR 2013 SC 3681 : (2013) CriLJ 4618 : (2013) 4 RCR(Criminal) 853 : (2013) 11 SCALE 132 : (2014) 1 SCJ 756 is relied upon by him to substantiate his stand that here the expert did not certify that injuries caused to deceased Milind were possible by sickle. He submits that sickle is not a double edged weapon. The judgment of this Court reported at Mahadeo Kundalik Vaidya and Others Vs. State of Maharashtra, (2001) ALLMR(Cri) 2147 : (2001) CriLJ 4306 is pressed into service to demonstrate how the medical evidence in such circumstances needs to be appreciated.

According to Advocate Mr. Manohar, by ignoring above material, finding of guilt has been mechanically recorded by trial court.

Learned A.P.P. submits that deposition of injured witness ie complainant Dilip Bhowate is important. That evidence needs to be accepted, & here, it is also corroborated by other material on record. He has also invited our attention to evidence of Girjabai (PW-3), Ashok (PW-2) and Sulochana (PW-4). He states that in postmortem report, Milind was found to have suffered two stab wounds, which are possible by sickle. The accused persons did not deliberately cross-examine Doctor on nature of weapon and injury. He also states that story of attack on Ashok (PW-2) and Dilip is fabricated and there was no such defence in the statement recorded by trial court under Section 313 of the Code of Criminal Procedure.

Advocate Mr. Wathore appearing for the complainant has attempted to assist prosecution by demonstrating that spear recovered under Section 27 of the Evidence Act is a weapon with sharp edges. He has also invited our attention to digram of weapon as available on record. He adopts arguments of learned A.P.P. and submits that twisting of sharp point or tip of spear may be due to its handling during transport. He, therefore, prays for dismissal of appeal.

The offence appears to be related with dispute about field mentioned supra. Girgabai (PW-3) in her cross-examination has stated that she has started residing at Kohala just two years prior to incident. One Shama Chavan was cultivating that field and accused Devidas and Ramdas are his sons. She further stated that she did not file any case under the Bombay Tenancy Act, but accused persons had filed it against her. She did not receive possession of field through Court, but Patwari entered her name in revenue record and told her to cultivate it and, therefore, she started cultivating it. She denied that on 05/09/1999, she did not visit said field. Dilip (PW-1) has also in his cross examination accepted that dispute regarding possession was going on between Girjabai on one hand, and Ramdas and Devidas on other hand. He also accepted that accused Ramdas and Devidas were cultivating that field.

At this stage, it will be necessary to refer to defence of accused persons. Trial court has recorded their statements under Section 313 of Code of Criminal Procedure on 25/09/2001. While answering question no.59, accused Ramdas has stated that there was dispute about said field. He informed that dispute to deceased Milind and, hence, Milind had come to the field. He had gone to police station to lodge report about theft and he was arrested. He also stated that in police custody, he came to know that Ashok Ingole (PW-2) caused death of Milind.

Dilip Bhowate (PW-1) is injured witness. He has stated that on 05/09/1999, it was Sunday. Ashok Ingole, cousin brother of Girjabai came to him and informed about dispute going on in the field of Girjabai about cutting and harvesting of Udid crop. Ashok insisted that Dilip should come to field as Dilip was member of Gram Panchayat. Ashok also called Sarpanch Milind Talware and one Kamaldas Sawai. Accordingly, all three i.e. Milind, Kamaldas and Dilip came to field of Girjabai. At that time, Ashok (PW-2) was also in the field. Between 09:30 to 10:00 a.m., Devidas, Ramdas and Prakash came to the field of Girjabai. Ramdas assaulted Sarpanch Milind with sickle, while accused Prakash assaulted Dilip with spear. Accused Devidas has also started assaulting Milind Talware. Dilip got injury at right side rib from spear of Prakash and he started running away. Accused no.3-Prakash chased him for about 200 to 250 feet. He has sated that when Milind was assaulted, he was 56 feet away from Milind and he saw one blow delivered on Milind. He came to village and informed the attack to villagers, who were sitting at the square. He went to his house, drank water and again went towards field of Girjabai. At that time villagers were bringing Milind in village. He admitted the complaint lodged by him with police to be correct. He also identified spear, which was shown to him.

His cross examination shows that at the time of incident, dispute about possession was going on. He stated that he was not aware, whether that field was in possession of accused Ramdas and Devidas, since the lifetime of their father. He denied that on the day of incident, Sarpanch Milind had asked that they should go to the house of Ashok Ingole, but they did not meet Ashok. He stated that he had informed police that on 05/09/1999 in the morning, he, Sarpanch Milind and Kamaldas were standing near Gram Panchayat and Sarpanch Milind told them that all of them had been to the house of Ashok Ingole. Hence, they went to house of Ashok, but he was not there. Hence, they came back to Gram Panchayat. He further deposed that position deposed by him in chief was correct and statement which read as above and recorded by police (portion marked "A") was not correct.

He in next breath stated that portion marked "A" as recorded by police was correct and in again added that it was incorrect. He accepted that when he reached the field of incident, Ashok Ingole was already in that field, but away from them. He could not tell from where the accused persons suddenly emerged. He deposed that they rushed towards Milind from his left side and assaulted with stick on his back. That assault was by accused Ramdas & at that time, he, Milind and Kamaldas were chitchatting. They were discussing about the voting. He had not seen accused Devidas coming towards Milind when he was running away and accused Prakash was chasing him. He stated that while running away, he saw Devidas coming towards Milind in the field and he had accordingly stated it to the police. After reading over the statement, this witness has stated that whatever police recorded was correct and statement made by him earlier was incorrect. He further stated that at the time of assault by Ramdas on Milind, Devidas was not present there. He further stated that he had informed police that accused Prakash was holding spear. He accepted that he did not inform police that accused no.3 Prakash chased him by holding spear like weapon. He denied that Prakash Rathod complained to Sarpanch Milind about Ashok Ingole and protested, as Ashok Ingole was taking away Udid crop. Therefore, deceased Milind went to house of Ashok, but he could not be found. Therefore, Milind along with Dilip came to field to persuade Ashok Ingole. He denied that Ashok Ingole got annoyed and caused injury with spear from back side of Milind.

Perusal of evidence of Ashok (PW-2) shows that Girjabai (PW-3) is his cousin sister. He has deposed that he was carrying cut Udid crop to his house by making trips to field, at that time, Kamaldas Sawai gave call to him. Sarpanch Milind and Dilip Bhowate were with Kamaldas. He casually asked them to company him in the field. He proceeded first and those three persons followed him.

In the field, when they were plucking Udid crop, he heard a shout "Aai O". Therefore, he came towards boundary of field, where Dilip (PW-1) was standing. He found that Prakash was chasing Dilip holding a weapon and Dilip Bhowate ran away towards village. Sarpanch Milind was lying on the boundary of the field with bleeding injury. He lifted him and gave water. He then saw accused Ramdas and Prakash running away towards village locality. He also stated that Dilip Bhowate had an injury caused by weapon carried by accused Prakash.

His cross-examination reveals that his statement was recorded by police in the evening after completing inquest panchnama of the body of Milind i.e. on next day. He also stated that Girjabai had come to village one year prior to incident along with her son and dispute about field was going on. Since time, even prior to her arrival, he stated that forcible possession was obtained by accused Ramdas and Devidas about 20 years back. He further stated that he was about 500600 feet away from Milind and 45 labours were working at that time in the field. Dilip Bhowate did not shout. He did not see Prakash while assaulting Dilip, though he saw Prakash chasing him. He later on stated that he saw accused Prakash while assaulting with weapon and injuring Dilip. He could not explain why earlier he stated that he had not seen accused Prakash while assaulting Dilip Bhowate. He further deposed that when Prakash was chasing Dilip, distance between them was about 1 - 1 1/2 feet and both were facing towards Kohala village.

He deposed that Milind Talware and Dilip Bhowate as also Kamaldas Sawai came to his house casually, because there were election of Gram Panchayat and he happens to be member thereof. He stated that he had told them to come to field to settle the dispute about possession. He further stated that he had taken two rounds to bring Udid to his house between 09:00 a.m. to 10:00 a.m. and no dispute arose at that juncture. He denied that he was carrying away Udid crop forcibly and, therefore, Sarpanch Milind Talware and others came to his house and stopped him from doing so. He denied that he assaulted Milind. He further denied that Dilip Bhowate intervened and got injured.

Girjabai [PW3] has deposed that when she was cutting Udid crop, Milind Talware, Dilip Bhowate and Ashok Ingole came to her field. Ashok was near the labours, who were working and Milind was near boundary. Dilip Bhowate was standing away from the Milind in the field. At that time accused Ramdas, Devidas and Prakash came. They started beating Milind. However, immediately she stated that she saw Ramdas beating Milind Sarpanch. Accused Prakash chased Dilip and he was holding a stick having something to it. Prakash also gave a blow of that stick to Dilip. Dilip, therefore, ran away towards village locality. Milind remained lying on boundary of the said field. He was crying as "Aai Aai". Some farmers from adjoining field and others gave water to Milind and then Milind was taken to village. His body was stained with blood. Ramdas, Devidas and Prakash had ran away. She expressed her inability to identify the stick to which something was attached in Court.

Her cross-examination reveals that crops like Hybrid, Jowar, Mung, Udid and Cotton crops were standing in the field. Field was sown with three lines of hybrid crop and alternatively Mung crop then Hybrid corp and then Udid crop. She was at a distance of 100 feet from the spot of incident. Female labours were working after her. She accepted that she heard shout as "Aai O" and, therefore, turned to have a look on her backside. At that time she saw Ramdas and Prakash coming towards Milind and Dilip was running away towards village. Accused Prakash chased Dilip for a distance about half field. She states that Prakash delivered blow of spear on Dilip by throwing it. She saw Dilip Bhowate receiving blow of spear. She also saw Prakash Rathod thereafter chasing Dilip and running away towards Pimpalgaon. She stated that Prakash did not run towards village Kohala. She also stated that Ramdas and Devidas had already ran away and Prakash was alone when he started running away. She further stated that her statement was recorded by police and she had told police that she saw Ramdas while beating Milind. Later on, she stated that as she was frightened, she might not have stated that fact to police. She also submitted that she had told police that accused Devidas hurriedly went closure to Milind and could not assign any reason as to why name of accused Devidas was not mentioned in her police statement. She accepted that one Pundlik Sayaji Talware came near Milind with water. She denied that Sarpanch Milind had opposed her entry in the field and had asked herself and Ashok Ingole to leave it. She denied that, therefore, Ashok Ingole inflicted injury on stomach of Milind.

Sulochana [PW4] is wife of Ashok [PW2]. She states that on the day of incident at about 10:00 a.m., deceased Milind, injured Devidas and one more person came to their field. These persons were standing on the boundary. At that time, Prakash Rathod, Ramdas and Devidas came in the field. They beat Sarpanch and accused Prakash chased Dilip holding stick in his hand and he also beat Dilip. Dilip then ran away towards village locality. Devidas and Ramdas were beating Sarpanch. Thereafter, they also ran away towards Pimpalgaon. Her cross-examination shows that she was not knowing Kamaldas Sawai. She also could not identify third person (accused), if that third person was brought to Court. She further stated that three persons, who came from Pimpalgaon, were not known to her at that time. She accepted that she did not state names of these three persons, when police recorded her statement. She also accepted that since then she had not seen them.

Keshao (PW-5) is witness examined by prosecution to prove spot. This witness has in cross-examined deposed that he was not present in the field at the time of the incident and he had not shown said spot to police, but police had shown that spot to him. He happens to be cousin brother of deceased Milind. After contents of spot-panchnama were read out to him, witness stated that he had shown spot of incident to police and thus recitals in the panchnama were correct. He denied that he went to spot of incident to facilitate preparation of spot-panchnama and signed it on the say of police. The said panchnama shows standing crop of Hybrid, Udid, Mung, Cotton and Tur. It is also mentioned that the plants of Hybrid Jowar were broken and trampled. Some plants of Udid were also uprooted and trampled. At same place, blood was seen on stones & blood stains were there in its surrounding area. The spot is near embankment towards crops of Hybrid and Udid in the boundary. It is mentioned that spot is bounded on east by field of one Khumalrao Ramteke, on west by field of Girjabai, on north by field of Keshav Talware and on south by field of Dhanraj Pawar. These boundaries do not show that incident occurred in the field of Girjabai.

The manner in which things transpired and deposed by Dilip show request made by Ashok (PW-2) to him and deceased Milind to visit field to settle dispute, which was then going on, but Ashok (PW-2) does not support this. On the contrary, he mentions that Kamaldas Sawai gave call to him when he was carrying Udid crop to his house. Milind Talware and Dilip Bhowate with Kamaldas and he then requested them to come to his field without any cause. According to Girjabai (PW-3), when she was harvesting Udid crop, Milind, Dilip and Ashok Ingole came to the field. None of these witnesses states that any dispute was then going on in the field between accused persons and Girjabai. On the contrary, from their deposition, it is apparent that accused persons arrived at the field after Milind, Dilip and Kamaldas came there. Sulochana (PW-4) has in cross-examination candidly accepted that all three accused persons were not known to her.

Conduct of Dilip, who is injured complainant shows that after receiving a blow of spear from Prakash on his right rib, he went to his residence, drank water and again came back towards the spot of incident. He had in cross examination also stated that Milind Talware had asked them to come to house of Ashok Ingole and, therefore, they proceeded towards house of Ashok, but he was not in the house. The contradictions and omissions in his statement are already mentioned supra. He has also accepted that when he reached the field, Ashok Ingole was already there.

This witness has specifically stated that when Ramdas assaulted Milind, Devidas was not present there. He has also not seen Devidas coming towards Milind. According to him, Ramdas assaulted Milind with stick on his back. Thus, his evidence does not help prosecution to show involvement of Devidas in the matter. His evidence only reveals assault by Prakash on him with spear and his running away and Prakash chasing him.

Ashok [PW2] deposes that he turned around only after hearing shout "Aai O" and at that time, accused Prakash was chasing Dilip holding weapon and Sarpanch Milind was lying on the boundary of the field. Thereafter, he saw Ramdas and Prakash running away towards village. Thus, he again does not name Devidas. In cross-examination, he stated that he did not see Prakash assaulting Dilip with weapon. His improvement in cross-examination asserting that he saw Prakash while assaulting Dilip cannot be accepted. He has also stated that when Prakash was chasing Dilip, distance between them was only 1 to 1 1/2 feet and both were facing the Kohala village. This distance again could not have been material that had Prakash being following Dilip with spear considering its length or reach. Evidence of Girjabai (PW-3) shows that accused persons after coming to field, started beating Milind. Then she has improved and stated that she saw Ramdas beating Milind and accused Prakash chasing Dilip. Prakash gave blow of stick having something to it to Dilip. Her cross-examination shows that after hearing shout, she turned back and then saw Ramdas and Prakash coming towards Milind, at that time Dilip was already running away towards village. Accused Prakash then chased Dilip for some distance. She also stated that Prakash gave blow of spear to Dilip by throwing it. Omission to mention name of Devidas is also established in her cross-examination.

Thus, this evidence shows glaring inconsistence in narration of events by these eyewitnesses. The blow of spear by throwing it, is not spoken by Dilip. Such injury while Prakash was chasing him would have been on his back and not on front portion of body.

Dr. Sanjay Jadhao (PW-7) has found incised wound over right chest and its size is 6 inches x 2 cm x 2 cm. It was fresh and in normal circumstance would have healed within 7 to 8 days. After observing the spear (Article17), Doctor has stated that this injury can be caused by weapon like it.

Doctor has further found splenic rupture, stab wound over left buttock, stab wound over right scapula just above chest and graze abrasion of irregular size on left side of scapula, while conducting postmortem of deceased Milind. Doctor has stated that injury nos.2 and 3 i.e. stab wounds may be caused by double edged sharp weapon, while injury nos.1 and 4 may be caused by hard and rough weapon. He further stated that on 13/09/1999, he received a weapon (spear) for examination, which was double edged iron blade with a wooden handle, blade of about 83 cm and it was not having any blood stains. He was not asked, whether other injuries to deceased Milind could have been caused by sickle.

PW1 injured has suffered injury on his chest i.e. in the front. Girjabai (PW-3), however, states that he was hit by spear thrown by accused Prakash. Her version, therefore, does not appear to be correct. She did not see person, who inflected blow on Milind. She heard Milind''s shout and then saw Ramdas and Prakash going towards village. At that time, Dilip was already running towards village and then accused no.3-Prakash chased him. Thus, if this version is accepted, Dilip was injured first and then there may be attack on Milind. Sulochana Chavan (PW-4) takes name of three accused and states that they all beat Sarpanch Milind and accused Prakash chased Dilip holding sickle in his hand, he beat Dilip and thereafter ran away towards Village. Devidas and Ramdas were beating Sarpanch. However, in cross, she has admitted that she did not disclose names of those three persons to police and those three persons were not known to her at that time. We have considered evidence of Ashok (PW-2) supra. Apart from change in sequence of events, it is seen that he also did not see anybody attacking Dilip. He, hearing shout and after coming towards boundary found accused no.3-Prakash chasing Dilip with weapon. Thus, he did not see anybody attacking either Milind or then actually inflecting a blow on Dilip. In cross-examination, he has stated that he saw accused Prakash while assaulting Dilip Bhowate.

Injured Dilip (PW-1) is, therefore, the only witness. He does not say that Milind shouted. On the contrary, he deposes that accused Ramdas assaulted Sarpanch Milind with sickle, while accused Prakash assaulted him with spear. He also states that he saw one blow on Milind. His version about incident in chief and cross insofar as their presence in field is concerned, varies materially. In cross-examination in paragraph 12, he has stated that he does not know how accused persons suddenly reached the field. They rushed from left side of Milind and then there was assault on Milind''s back with stick by Ramdas. He did not see Devidas coming towards Milind when he was running away and accused Prakash was chasing him. Thus, he saw only one blow on Milind and whether it was by stick or sickle is, therefore, doubtful. Conduct of this witness in not reporting the matter to police immediately again raises suspicion. He claims to be a Ward Member, who had gone to spot to resolve dispute. He was aware that in village, election and voting was going on. As such, there would have been some police personnel in the village. Instead of going to them, he goes to his house, drinks water and comes back to the spot.

Thus, the mode and manner in which incident began, whether Dilip and Milind reached field because they were invited by Ashok or then accused persons were already in the field, are of questions which cannot be answered with certainty in this matter. More chances are of Ashok & Girijabai attempting to harvest the crop sown by the appellants.

We, therefore, find that there is no cogent, consistence and convincing evidence to rope in accused persons for the charges as levelled. There is absolutely no evidence of involvement of accused no.2-Devidas in the matter.

We, therefore, find impugned judgment dated 12/10/2001 unsustainable. It is quashed and set aside. The appellants accused are acquitted of offence punishable under Section 302 read with Section 34 and also under Section 307 read with Section 34 of the Indian Penal Code. Fine amount, if paid by them, be returned. They be set at liberty, if their custody is not required by State in any other matter. Seized property be destroyed after appeal period is over.