The State of Maharashtra Vs Rajendra @ Raju… — Murder and Culpable Homicide | Bombay HC (2017)

The State of Maharashtra Vs Rajendra @ Raju… — Murder and Culpable Homicide | Bombay HC (2017)

cria104.00

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.104 OF 2000

The State of Maharashtra
(through Azadnagar Police
Station, Dhule)
...APPELLANT
 VERSUS

1) Rajendra @ Raju Rambhau Yadav Age-21 years, 2) Zumber Shiva Yadav Age-40 years, 3) Ulhas Rambhau Yadav Age-20 years, 4) Dinesh Pandurang Yadav Age-25 years, 5) Gangaram Rambhau Yadav Age-22 years, 6) Balu Zumber Yadav Age-19 years All R/o: Ambode, Tq. & Dist. Dhule. ...RESPONDENTS

cria104.00

...

 Mr.P.G. Borade, A.P.P. for Appellant-State.
 Mr.R.M. Deshmukh, Advocate for Respondent
 Nos.1 to 6.

...

CORAM: S.S. SHINDE AND
 S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 21ST JUNE,2017.
 DATE OF PRONOUNCING JUDGMENT: 4TH JULY, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1.This Appeal is filed by the State
challenging the Judgment and order dated 30th
November, 1999 passed by the Additional Sessions
Judge, Dhule in Sessions Case No. 53 of 1996,
thereby acquitting the Respondents/original
accused Nos. 1 to 6 for the offences punishable
under Sections 147, 148, 302 read with 149, 341
read with 149 and section 120-B read with 149 of
the Indian Penal Code (For short “I.P. Code”) and
for the offence under Section 37(1) (3) of the
Bombay Police Act punishable under section 135(1)

cria104.00

of the Bombay Police Act.

2.The prosecution case, in nut-shell, is as

under :-

(A)Accused No.1 – Rajendra @ Raju, aged

about 23 years, is residing at Dhule. He is
running a Pan Stall at Dhule. Accused No.3 Ulhas
and Accused No.5 Gangaram are said to be brothers
of Accused No.1 Rajendra. Accused No.2 Zumbar is
said to be paternal uncle of Accused No.1
Rajendra. There was a joint family consisting of
Rambhau, Zumbar and Pandurang. Their native place
is village Ambode, which is hardly at a distance

of about 18 to 20 Km.s away from Dhule. They were
holding some agricultural land at Ambode, however,

as it became very difficult for them to pull on
the entire family on the agricultural income, they

entered in other small trades. For instance,
accused No.1 Raju purchased a tractor, and at the
same time, as has been stated above, he was

cria104.00

running a Pan shop.

(B)Babaji Yadav, father of deceased Anant,

is an agriculturist of village Ambode. The

deceased Ananta studied up-to M.A., besides it, he

was looking after the agricultural affairs. He

also purchased a tractor for getting the regular

income. The root cause of the rivalry which had
arisen in between the family of the deceased and
the family of the accused was that, it was the
desire of each family that, the tractor belonging

to other family should remain idle, and the

tractor belonging to their family should be the
source of income. At the relevant time, the work

of the construction of road and the bridge at
village Ajang and adjoining to that area was going
on. For the collection of stones, metal and water,

the tractor was required. The tractor belonging to

the family of the accused was hired by the

Contractor, who took contract to complete that

bridge and road. At the same time, the contractor

cria104.00

had also hired the tractor belonging to the family
of the deceased. There was a grudge in the mind of
accused No.1 - Rajendra and his akin that, the
tractor belonging to the family of the deceased
should not be used by the contractor or by any
person and that, the same should be remained idle,
only with an oblique motive that the family of the
accused should earn more and more, and that there
should not be other sharers.

(C)The other cause of the feud was that,

some of the persons from the family of the accused

had contested a Gram Panchayat election of village
Ambode. They were being opposed by some of the
members of the family of the deceased. On some
occasion there was a straight fight. Contemplating
the contingency that, there were more members in

the family of the accused, and they were at a
upper stage on financial aspects, the members of
the family of the deceased withdrew from the
contest. That thing added fuel in the fire. It

cria104.00

appears that later on the members of the family of
the accused, became more aggressive.

(D) On 2nd November, 1995 at about 10 a.m.

deceased Anant Babaji Yadav left village Ambode
for Dhule. The deceased was accompanied by Santosh
Dada Pawar and 3-4 others. They reached Dhule in a
tractor, to sell millet (Jawar). At about 11.30
a.m. they reached in the premises known as the
Market Yard, Dhule. The gunny bags containing the
Jawar were unloaded from the tractor, and the
process of disposal of those gunny bags to the

commission agent was going on. The deceased and
Santosh Dada Pawar sat in the hotel known as Shiva

Hotel, which is there in that premises. One
Baliram Thorat is the owner of that hotel and he

also hailing from the same place, which belongs to
the family of the accused and the deceased. The
deceased and Santosh had a tea and started chit-

chatting. After some time, accused No.1 Raju
started calling the deceased, to come outside the

cria104.00

hotel. Accordingly, the deceased went there. The
place where accused No.1 and the deceased were
standing, there is a Pan Shop. There was a talk
between the deceased and accused No.1. It was a
hot discussion. In a spur of moment accused No.1

removed the Gupti from the pocket of his pant, and
thrust the same on the chest (right side chest
where the portion of abdomen starts). The deceased
fell on the ground and died instantaneously. At
the time of incident some 5 to 6 persons, alleged
to be accused Nos. 2 to 6, were present, so as to
keep watch that the outsiders should not
interfere. The moment deceased fell on the ground,
accused No.1 and his colleagues, who are said to
be accused Nos. 2 to 6 ran away from the place of
incident. It is the case of the prosecution that,
the moment the deceased went out of the hotel to

confront accused No.1, he was followed by the
informant Santosh Dada Pawar. However, the

informant could not do anything.

cria104.00

(E)It is the further case of the prosecution
that, at the time of incident one Uttam Kashinath

from village Ambode was also present there along
with one Bhilaji Hari Patil.

(F)informant Santosh Dada Pawar lifted
deceased Anant with the help of police constable
who, at the relevant time, was on the patrolling
duty in that premises. On the way to Civil
Hospital, Dhule, when the deceased was being
brought in a auto rickshaw by the informant
Santosh and by that constable, it had come to the
notice of that police constable that, Inspector
Shri Rathod, Incharge of Azadnagar Police Station
was sitting in a jeep and was proceeding from the
road. The constable stopped that Jeep and told the
incident to P.S.I. In the Police Station,
Azadnagar F.I.R. Exhibit-51 was registered as per
the say of informant Santosh. In the beginning the

offence was registered only under section 302 of
I.P.C. vide C.R. No.339/1995 at about 13.05 p.m.

cria104.00

(G)The Police Inspector Shri Rathod started

investigation of the said crime. Accused No.1 was
apprehended immediately and he was brought in the
Police Station. At about 4 to 4.30 p.m., the
supplementary statement of Santosh Dada Pawar i.e.
informant was recorded by the Police. In that
supplementary statement, the informant made a
reference of the material aspect that, at the time
of incident some 5 to 6 persons were standing near

accused No.1. At a very short distance an auto
rickshaw was found parked. He made a reference

that out of said 5 to 6 persons, who were
present, 2 to 3 persons gave slaps to the
deceased. He further made a reference that, he

tried to intervene in the matter, but it was of no
avail. It is to be noted that, even in his
supplementary statement, which was recorded
immediately after 3 to 4 hours after the incident

was over, Santosh Dada did not tell the names of
those 5 to 6 persons. He did not state about the

cria104.00

the presence of those so called eye witness
Bhilaji Hari Patil.

(I)The supplementary statement of Santosh

Dada i.e. the informant was again recorded by the
Police on 3rd January, 1996 i.e. after 2 months

after the incident. At that time, he told the
incident in a different manner, than the manner
which he had narrated in his F.I.R. at the
beginning and which he had narrated in his first
supplementary statement. On 3rd January, 1996 for
the first time Accused Nos. 2 to 6 were being
brought in the picture. It is pertinent to note
that, at that time the presence of Bhila Hari
Patil and Shantaram Dada was being exposed.

(J)During the course of investigation, the
instrument i.e. Gupti which was used at the time
of the commission of the offence was recovered

from the possession of Accused No.1 - Rajendra.
The Shirt containing the blood stains belonging to

cria104.00

accused No.1 and the shirt which the informant
Santosh wore at the time of incident, on which
there were blood stains was recovered. As per the
routine procedure, the articles were sent to the
Chemical Analyzer to elicit his opinion on the
point of the detection of the blood group. The
persons who had seen the incident and who were
connected with the incident some way or the other,
their statements were recorded and ultimately the
charge sheet against the accused was placed before
the Chief Judicial Magistrate, Dhule on 30th
January, 1996.

(K)Thereafter the case was committed to the
Court of Additional Sessions Judge, Dhule. Charge
at Exhibit-33 was framed against all the accused
persons and the same was explained to them. The
accused persons pleaded not guilty and claimed to
be tried, with the defence of total denial.

3.After recording the evidence and

cria104.00

conducting full fledged trial, the trial Court
acquitted all the accused persons from the
offences with which they were charged, as stated
herein above in Para-1 of the Judgment. Hence this
Appeal.

4.Heard learned A.P.P. appearing for the

State and learned counsel appearing for
Respondents-accused, at length. Learned A.P.P.

appearing for the State invites our attention to
the evidence of three eye witnesses i.e. PW-1

Somnath, PW-2 Uttam and PW-5 Bhilajirao and
submits that these witnesses have categorically
stated that accused assaulted deceased Anant by

Gupti, and they have witnessed the incident. He
submits that overt act is attributed against all
the accused persons. He further submits that the

trial Court has not appreciated the evidence on
record in its proper perspective, and the findings
recorded by the trial Court are not in consonance

with the evidence brought on record by the

cria104.00

prosecution. Therefore, he submits that the Appeal
may be allowed.

5.Mr.R.M.Deshmukh,learnedcounsel

appearing for the original accused/ Respondents
invites our attention to the findings recorded by
the trial Court and submits that on analysis of
the evidence of all the prosecution witnesses and
in particular evidence of alleged eye witnesses
i.e. PW-1 Somnath, PW-2 Uttam and PW-5 Bhilajirao,

the trial Court found that it suffers from serious

contradictions, omissions, improvements and
therefore benefit of doubt is given to the
accused. It is submitted that PW-1 Santosh has

stated different versions in his F.I.R., first
supplementary statement and second supplementary
statement recorded by the Investigating Officer.

It is submitted that PW-1 Santosh stated in the
F.I.R. that accused Raju took out knife from his

pocket and stabbed Anant, however in supplementary
statement he stated that accused No.2 Zumber gave

cria104.00

Gupti to accused Raju, and then Raju gave blow by
said Gupti on the chest of deceased Anant. He
invites our attention to the findings recorded by
the trial Court and in particular Para 30 onwards
and submits that interference in the order of
acquittal is unwarranted. He submits that the
trial Court has taken a plausible view and though
another view may be possible, the same is no
ground to interfere in the order of acquittal. He
submits that alleged recovery of weapon is not
proved. There was delay in recording statements of
the eye witnesses by the police and therefore
entire prosecution case appeared doubtful to the
trial Court and therefore the Respondents are
acquitted. It is submitted that no any overt act
qua Respondent Nos. 2 to 6 has been attributed.
Their names have been included after thought, in
supplementary statement by the informant.
Therefore, he submits that the Appeal deserves to
be dismissed.

cria104.00

.By way of alternative submissions, the

learned counsel appearing for the Respondents
submits that without prejudice to the contentions
already raised by him, if this Court is of the
opinion to convict the accused, in that case, even
as per the prosecution case Raju gave one blow of
Gupti on right side of stomach of deceased Anant
and therefore benefit of Exception-4 of Section
300 of the I.P. Code can be extended in favour of

the accused. He further submits that it has also
come on record that there was some altercation
between Raju and deceased Anant and therefore
Gupti was given by accused Zumber and then Raju
assaulted Anant. Therefore, he submits that
lenient view may be taken and case of the accused,
may be considered for sentence under Section 304
Part-II of the I.P. Code.

6.The prosecution has examined medical

officer, PW-3 Dr. Avinash Shamrao Ruikar. He
deposed that on 2nd November, 1995 at 2.30 p.m.

cria104.00

dead body of Anant Babaji Yadav was sent to morgue

for postmortem. He conducted postmortem on the
dead body on the very day between 2.40 p.m. to
4.00 p.m. On external examination, he noticed
following external injuries, described in Column
No.17:-

1) Incised stab wound on right lower chest
1/2 cm., above right costal margin 1 cm.
to right side of mid-line 2 cm. X 0.75 cm.

On dissection following internal injuries
were noticed:

a) Right 11th space inter costul muscles
cut 2 cm. X 1 cm., 1 cm. right side of
mid-line,

b) Right dome of diaphaym cut through and
through 2 cm. X 1 cm.

c) Right lobe of liver penetrated on its
superior surface 1.5 X 0.5 X 4 cm.,

d) In peritonium cavity about 1500 ml.
blood/cloths, to depth 11.5 cm.

cria104.00

.PW-3 Dr. Avinash Ruikar further deposed

that in his opinion the cause of death was
hemorrhage and shock following stab wound of trunk
involving liver. He deposed that the P.M. reports
are in his handwriting and it bears his signature,
contents are correct, it is at Exhibit 54. He
deposed that the injuries mentioned in P.M. are
ante-mortem. He has also mentioned in Col. No.8
condition of cloth-cut mark on shirt and banyan

and both were blood stained. Liver was injured, so
to cause bleeding and person should go into shock

and it will take 1 to 1 and 1/2 hour after
sustaining injury. He further deposed that on 6th
November, 1995 P.S.I. Rathod made a query
regarding type of weapon and whether by that
weapon such injury can be possible. He deposed
that the said Gupti was shown to him by police.
Then he gave his opinion that such injury can be
possible by said Gupti. He deposed that at the

time of postmortem, he has also preserved blood
sample for grouping purpose and also the nail

cria104.00

clippings, and the same blood phial was handed
over to the concerned police station for sending
it to C.A. on 3rd November, 1995. He deposed that
the injury mentioned in Column No.17 and
corresponding injury were sufficient to cause
death, in ordinary course. He deposed that
injuries mentioned in Column No.17 are possible by
Article No.1 Gupti, which was shown to him.

.During the course of cross-examination,

PW-3 Dr. Avinash Ruikar stated that police sent

copy of the inquest and he received the same

before postmortem, that is why he has mentioned
the history of assault in Column No.5 of
Exhibit 54. He stated that he has not mentioned in

his postmortem report that injuries mentioned in
Column No.17 received by sharp cutting weapon. he

stated that he was not sure regarding the weapon
while giving the opinion regarding the cause of

death. He stated that it is very difficult to say
that the injury sustained to the deceased were

cria104.00

caused only by Article No.1, which was shown to
him. He stated that irrespective of the edges of
weapon the dimensions of injury may be equal or
less or even more than the length, width and
breadth of weapon due to elasticity of the skin.
He stated that the person if is handling the
Article No.1 and if he uses force, then the
assailant may cause minor injury to the palm on
his hand, if there is no handle to it. He further
stated that there was no damage to heart but there
was damage to chest wall.

7.Prosecution examined PW-7 Dr. Sanjay
Murlidhar Shinde. He deposed that on 2nd November,
1995 as per the police memo of Azadnagr police
station, he examined one Rajendra Rambhau Yadav
(accused No.1). He deposed that during examination
he has not found any external injury on the person
of Rajendra. Accordingly he issued certificate,
which is at Exhibit-65. He further deposed that on
the very day he collected blood sample of Rajendra

cria104.00

in a phial and he also then taken the nails of
Rajendra of both hands, and the same were handed
over to the police constable.

8.To prove its case, the prosecution

examined the informant PW-1 Santosh Dada Pawar. He
deposed that he knows all the accused persons.
They are from his village Ambode. He knows the
deceased Anant Babaji Yadav. Anant was known as
Balu Babaji. He deposed that all the accused are

the agriculturists and they reside in joint
family. He was educated upto F.Y.B.A. He deposed

that the deceased Anant was educated up-to M.A.
The brother and father of the deceased Anant are
doing the agricultural work and they are
agriculturists. He knows Yashwant Yadav, Pandrang
Ishwar, Uttam Kashiram and Dashrath Motiram Kadam
of his village. Dashrath was the driver on the
tractor of Babaji Yadav, father of the deceased.

Accused Nos.3 and 5 are the real brothers of
accused No.1 Raju. Accused No.2 Zumber is the real

cria104.00

uncle of accused No.1 Raju.

.PW-1 Santosh Pawar further deposed that

the incident took place on 2nd November, 1995. On
that day he engaged the tractor of Anant Babaji

for carrying the gunny bags of Jawar for selling
in the market. Yashwant Yadav, Murlidhar Yadav,
Pandurang Yadav have also put food grains in the
said tractor. They started at about 10.00 a.m.
from village Ambode. In the tractor gunny bags of
food grains of Uttam were also carried. Dashrath
was the driver of the tractor. Anant and other

persons who carried their food grains to Dhule,
were on the said tractor. They halted their
tractor near village Ajang. They noticed accused
No.1 Raju, accused No.4 Dinesh and accused No.6

Balu were standing near village Ajang, who were on
motorcycle. He further deposed that they took the
said tractor to Fule Market and reached in the

market at about 11.30 a.m. and they halted their
tractor at the place where auction took place in

cria104.00

the market yard.

.About the main incident, PW-1 Santosh

Pawar deposed that he himself, deceased Anant came
out from the market yard for taking tea, in the
hotel known and styled as "Shiva Hotel" owned by
one Baliram. He deposed that said hotel owner is
also from their village Ambode. At that time, they
noticed accused no.1 Raju and his companion were
standing on the road in front of the hotel. At
that time, accused Raju gave call to the deceased
Anant. Then Anant came out from the hotel. He also

followed Anant. He deposed that he noticed that,
accused No.1 Raju gave blow of Gupti on the right
side below the chest of Anant. After assault,
accused Raju ran away from the spot along with his
companions. The deceased Anant sustained bleeding

injury. He deposed that he caught hold Anant. He

further deposed that he himself along with

constable Kedar took the injured Anant in civil
hospital, Dhule. He deposed that accused Zumber,

cria104.00

accused Ulhas, Dinesh Pandurang, Gangaram and Balu
Zumber were accompanied with Raju at the time of
assault. After assault, all these accused persons
ran away from the spot. He deposed that before
they reached to the hospital, the deceased Anant
succumbed to the injury. He deposed that at the
time of incident accused Balu caught hold deceased
Anant and the other accused were giving threat not
to interfere in the quarrel. He deposed that
accused Gangaram and Balu Gangaram were giving
threats to them. He deposed that he also noticed
Bhila Hari Patil and Shantaram Dada Pawar on the
spot.

.PW-1 Santosh Pawar further deposed that

at that time P.S.I. Rathod also came in the
hospital and took his complaint in the hospital
itself. Complaint Exhibit-51 bears his signature
and he admitted the contents of the complaint to
be true and correct. He deposed that because of
some dispute in respect of fare of tractor, the

cria104.00

said incident took place. Then from civil hospital

along with P.S.I. Rathod he came to Azadnagar
police station and then he recorded his
supplementary statement in the police station.
Then he produced his shirt having some blood
stains, before the police, which was attached
under panchnama. He deposed that Article No.1
Gupti shown to him was the same, which was in the
hands of accused No.1 at the time of incident.

.During the course of cross-examination,
PW-1 Santosh Pawar deposed that he knows all the

accused persons since his childhood. He stated
that accused No.3 Ulhas was serving in Jawahar
Foundation and residing at Dhule. Accused Raju and

his brother Ddabhai were also staying at Dhule and
running Pan stall at Dhule. Accused Gangaram was
staying at Ambode and doing the agricultural work.
He stated that he knows the difference between the

knife and Gupti. At the time of lodging his
complaint to the police station, he was knowing

cria104.00

that Gupti was used at the time of commission of
said offence. He stated that he was in police
station and during that period his supplementary
statement was recorded by P.S.I. Rathod. At that
time P.S.I. Rathod shown him a Gupti in the police

station. At that time he told to P.S.I. that he
has wrongly mentioned about the knife but it was
Gupti and Article No.1 was the same Gupti. He
stated that in the month of January, on 3rd
January, 1996 he was again called at the police
station and again his statement was recorded by
police. He stated that two days prior to the said
incident, some dispute took place between accused
Raju and deceased Anant in respect of hiring
tractor on road and that dispute was amicably

settled in the village. He stated that when he
himself and Anant went to the hotel Shiva, the

owner of said hotel namely, Baliram Thorat was
sitting on counter. Accused Raju called to

deceased Anant from a distance of five feet only.
The companions of the accused were near to him at

cria104.00

a distance of about 2-3 feet from him. PW-1

Santosh further stated that he followed deceased
Anant and went to Pan stall which is adjacent to
hotel and took Vimal Tobacco packet from the Pan
shop, and at that time he noticed that there was

some hot talk took place between accused Raju and
deceased Anant in respect of hiring of tractor on
road work. He stated that he also noticed that one
auto rickshaw near the said spot. He also tried to

intervene the quarrel in between the accused and
deceased. He stated that it did happen that when
he tried to intervene the quarrel, the accused

Raju took away the instrument like knife from his
pant which was kept near his stomach and gave the
blow of it on the stomach of deceased Anant and
they ran away from that spot by the auto rickshaw.
He stated that at the time of lodging the
complaint he only told the name of Raju to police
because police did not enquire to him about the

names of other assailants, so he failed to tell
names of other accused at the time of lodging

cria104.00

complaint Exhibit-51. He further stated that at
the time of recording of his supplementary
statement on the very day, he did not tell the
names of accused Nos.2 to 6 as his mental
condition was not proper. He stated that first

time on 3rd January, 1996 he told the names of
accused Nos.2 to 6 at the time of recording his
supplementary statement. He stated that on 3rd
January, 1996 he came to know that the names of
other accused persons particularly accused Nos.2
to 6 remained to be disclosed to police.

.After careful perusal of the evidence of

PW-1 Santosh Pawar, he deposed that accused No.1

Raju assaulted deceased Anant by Gupti, and in the

cross-examination also he was consistent and his

deposition was not at all shattered. But his
evidence shows that he has not stated the names of

other accused persons i.e. accused Nos.2 to 6 in

his complaint and so also in first supplementary
statement, and he stated the names of accused

cria104.00

Nos.2 to 6 to the investigating officer on 3rd
January, 1996 when his second supplementary
statement was recorded, i.e. after two months from
the date of incident which took place on 2nd
November, 1995.

9.The prosecution examined PW-2 Uttam
Kashiram Yadav. He deposed that he knows all the
six accused persons and they are from his village
Ambode. He deposed that incident took place on 2nd
November, 1995. On that day he kept his Bajara for
taking to the market committee in a tractor of
deceased Anant @ Balu. He himself, Santosh,
Pandurang Ishwar, Yashwant Murlidhar were in the
tractor and Dasharath was driving the said
tractor. They started from Ambode at about 10.00
to 10.15 a.m. and reached at Dhule Market

Committee at about 11.00 to 11.15 a.m. and they
halted their tractor in a market yard. Then

Santosh Pawar and deceased Anant went to the hotel
for taking tea. Then he himself and Bhanu Sarak

cria104.00

went towards the hotel for taking tea after them,
to the hotel known and styled as "Hotel Shiva".
Then Anant paid the bill of tea. He deposed that
when they were taking tea, that time accused Raju

was standing in front of hotel and some 5-6
companions were also with him and Raju called
Anant out of hotel and some quarrel took place
between accused Raju and Anant. He deposed that he
noticed from a distance of 4 to 5 feet that
accused Raju assaulted Anant by Gupti on right
side of his stomach. Because of the said assault
Anant sustained bleeding injury and then fell down
on the ground. At that time 4-5 persons were also
with accused Raju. He deposed that he could not
identify those persons and cannot tell their
names, except accused Raju.

.During his cross-examination, PW-2 Uttam
Yadav he stated that no scuffle took place between

the accused and deceased, except exchange of
words. He stated that he has not seen from where

cria104.00

accused Raju took out the Gupti and where it was
kept. He stated that he only saw that Raju gave a
blow of Gupti to deceased. He stated that his
supplementary statement was recorded by police
after 1 to 1 and 1/2 months. He denied that he was
not present at the time of incident and he does
not know anything about the incident.

.Thus, evidence of this witness PW-2 Uttam
is consistent that accused No.1 Raju assaulted
deceased Anant. But PW-2 Uttam admitted in his
cross-examination that he could not identify those

persons and could not tell their names, who were
present along with accused No.1 Raju at the time
of incident.

10.The prosecution examined PW-4 Dashrath
Motiram Thorat. He was working as a driver on the
tractor of deceased Anant. He deposed about the
earlier incident dated 28th October, 1995, at
which time, Zumbar Shiva, Balu Zumbar, Ravindra

cria104.00

Pandurang Yadav, Santosh Pandurang, Gangaram
Rambhau, Dinesh Pandurang, Rambhau Shiva Yadav
threatened deceased Anant that they will kill him.
He further deposed that, at that time respected
persons in the village convinced both the parties
not to quarrel between themselves.

.About the main incident, PW-4 Dashrath

Thorat deposed that on 2nd November, 1995 they
lodged Jawar crop in the tractor and thereafter
reached near village Ajang. He deposed that
Yashwant Murlidhar Yadav, Pandurang Ishwar Thorat,
Uttam Kashiram Yadav, Santosh Dada Pawar, deceased

Anant Dadaji and he himself were on the tractor.
He deposed that they halted the tractor near
village Ajang. At that time he noticed the accused

Raju, accused Dinesh and accused Balu on the
motorcycle. He further deposed that then they
started their tractor. Then at about 11.00 to

11.30 they reached in the market yard at Dhule. He
deposed that then deceased Anant and Santosh went

cria104.00

outside for taking the tea in hotel and he was
waiting near the tractor. He deposed that Uttam
Kashiram also followed deceased Anant. He deposed
that after half an hour Uttam Kashiram came
running to him and told him that accused Raju had
assaulted deceased Ananta by Gupti. So he rushed
to the spot and he noticed that Santosh and one
police constable already carried deceased Ananta
by auto rickshaw and he also noticed some blood
stains on the road.

.During the course of cross-examination,

PW-4 Dashrath Thorat stated that on the day of
incident police had not recorded his statement and
allowed him to go. He stated that till the date of
his deposition in the Court police had not made
enquiry with him. He stated that for the first
time he was deposing about the incident in the
Court. He stated that he was deposing first time

in the Court that he noticed accused Raju, Dinesh

and Balu near village Ajang on motorcycle. He

cria104.00

stated that he knows Bhanudas of his village

Amobde and on that day he did not notice the said
person in the cotton market.

.Thus it is clear from the evidence of

this witness PW-4 Dashrath Thorat that he has not
witnessed the incident.

11.The prosecution has examined PW-5

Bhilajirao Hari Patil. He deposed that he has no
relations with the accused and deceased and his
family. He deposed that the incident took place on

2nd November, 1995. On that day at about 10.30
a.m. he was returning to his house from the field
as usual. While returning to house he noticed
Ananda Tana, Baban Bavadu and Shantaram Dada in
the bed of river near the Maroti Temple, they were

chit-chatting and so he went near them. He deposed
that at that time Ananda Tana Kadam told him that

Gangaram Rambhau told him that on that day murder
of Anant would take place at Dhule. He further

cria104.00

deposed that he went to market yard, Dhule. He
further deposed that he noticed that 10 to 15
persons were gathered in front of hotel Shiva. He
rushed to the said spot and that time he noticed
that accused Zumbar Shiva gave Gupti to accused

Raju and said Zumbar also asked said Raju to
finish Anant and at that time accused Raju
assaulted to the deceased Ananta on his chest by
said Gupti. He deposed that he also noticed that
accused Ulhas Rambhau and Dinesh Pandurang caught

hold deceased Anant @ Balu. He deposed that all
the accused persons including Gangaram were
threatening not to intervene in the quarrel and if
anybody intervene, they will finish him also. He
deposed that so they were unable to rescue the
deceased from the hands of accused. He deposed
that he himself, Santosh, Uttam and Shantaram
were present on the spot at that time.

.During the course of his cross-

examination, PW-5 Bhilajirao Patil stated that

cria104.00

there were no any cross-terms in between he
himself and the accused. He stated that his
statement was recorded on 16th November, 1995 by
P.I. Rathod at Dhule. He stated that at the time
of his statement before the police he has stated
that Ananda Tana told him (PW-5) that Gangaram
told him that on that day the murder of Ananta
would take place at Dhule. He was unable to assign
any reason as to why police have not incorporated

that portion in his statement. He stated that
before the police he stated that on the spot he
noticed Santosh, Shantaram and Uttam. He was
unable to assign any reason as to why the name of
Uttam is not incorporated in his statement. He
further stated that he noticed the mob in front of
hotel so by crossing the mob he reached said Balu.
He stated that accused Ulhas Rambhau and accused
Dinesh Pandurang caught hold both the hands of
deceased Ananta. He did not remember whether

before using the Gupti, accused Raju beat the
deceased Ananta with fist blow or slaps. He stated

cria104.00

that within a few seconds the accused Zumbar gave
Gupti to Raju and accused Raju assaulted it to
Ananta. He stated that at that time the distance
between him and Ananta was about 10 to 15 feet. He
stated that then accused Raju ran away from the
spot with Gupti and other accused also ran away
from the spot in auto rickshaw. He stated that he
did not know whether the accused family and family
of deceased were on cross terms with each other.

12.The prosecution examined PW-6 Ananda
Tanaji Kadam. He deposed that he knows all the
accused because they are from his village Ambode.
He deposed that he knows Shantaram Dada Pawar,
Baban Bhavadu Yadav and they are from his village.
He deposed that the incident took place on 2nd
November, 1995 on Thursday. He deposed that at
about 9.00 to 9.30 a.m. he was proceeding towards
his field. Then on the way one Gangaram Rambhau
Yadav met him and told him that today the murder
of Balu would take place at Dhule. He deposed that

cria104.00

Balu is son of Babaji Yadav. He deposed that he
immediately proceeded towards Dhule. He deposed
that while returning from field to his house at
about 10.00 to 10.30 a.m. one Shantaram Dada Pawar

and Baban Bhavadu Yadav met him in the bed of
river. He deposed that then he told to these two
persons that murder of Balu was going to take
place at Dhule. He deposed that meanwhile Bhila
Hari Pawar came there and then he returned to his
house. He further deposed that thereafter he went
to Dhule and in the market Dashrath Motiram Kdam
met him and told that the murder of Balu took
place.

.During the course of cross-examination,
PW-6 Ananda Kadam stated that 15 days after the
incident, police recorded his statement and during
those 15 days he was at Ambode.

witness to the seizure panchnama of Gupti at the

cria104.00

instance of accused No.1 Raju. He deposed that
accused No.1 Raju himself produced the said Gupti
which was kept in the said Pan shop situated at
Agra Road, near Jain Mandir. Accordingly,
panchnama was prepared on the spot. This witness
was cross-examined by the defence. In his cross-
examination, he stated that some criminal cases
were lodged against him. He denied that he was the
habitual panch of Azadnagar police.

14.PW-9 Kisan Ziparu Chaudhari is a panch
witness to the seizure panchnama of blood stained
shirt of the informant Santosh Pawar. PW-10
Ravindra Jagnnath Kolpe is a panch witness to
seizure panchnama of the clothes of the deceased
and accused. But this witness turned hostile and
did not support the prosecution case.

15.PW-11 Babaji Mukund Yadav is the father

of deceased Anant. He deposed that Anant died in
1995. He deposed that about 4 to 5 months prior to

cria104.00

the said incident, there was Grampanchayat

election in their village. His elder son namely

Dinkar was elected from Ward No.3 and it was
decided that he was to be elected as Deputy
Sarpanch of village. He deposed that Zumbar Suba
Yadav, his cousin brother, opposed to the name of
Dinkar and therefore his son Dinkar withdrew the
name from the election and since then they were in
cross-terms. He further deposed that in the month
of March, 1995 he purchased tractor in the name of

his son Bhaskar, and one Dashrath Motiram Kadm was
the driver on the said tractor and deceased Anant

was looking after the management of the said
tractor. He deposed that after 4 to 5 months the
accused also purchased tractor. He deposed that 7
to 8 days prior to the incident he had given his
tractor on hire on the road. One Bhalerao was the
contractor on the said work. He further deposed
that few days prior to the incident, all the

accused persons Santosh Pandurang, Ravindra
Pandurang had quarreled with his son and all the

cria104.00

accused told his son that because of the tractor
owned by him, they were not getting the work of
putting water on the road and also threatened him
to kill. This fact was told him by his son Anant.
He further deposed that then the matter was
settled. He further deposed that on 2nd November,
1995 when he went to Dhule, his driver Dashrath
met him on the road and narrated the incident
about the murder of his son Balu @ Anant. This
witness was cross-examined by the defence.

16.PW-12 Ravindra Bhaurao Kedar, is a police

constable. He deposed that on 2nd November, 1995
he was attached to Azadnagr police station, Dhule
as police constable. On that day he himself and
police constable Sayyad were on duty at cotton
market gate of Dhule. He deposed that when he was

on duty at about 12.00 to 12.30 p.m., he noticed
that some mob was gathered in front of Bhau Hotel,

near the Pan shop and he also noticed one auto
rickshaw near the said mob. Then he rushed to the

cria104.00

said spot. He deposed that he noticed one person
in a injured condition in the said auto rickshaw.

He also noticed that the said person sustained
bleeding injury on middle portion of chest and
blood was oozing from the wound. One person namely
Santosh Dada Pawar was also with injured person.
He deposed that he himself took the said rickshaw
in the civil hospital, Dhule along with the said
injured. He further deposed that he admitted the
said patient in the hospital and doctor examined
the patient and opined that he was no more. This
witness was cross-examined by the defence.

17.PW-13 Rohit Kashiram Rathod is the

investigating officer. He deposed about the manner

in which he has carried out the investigation of
the crime. In his cross-examination, PW-13 Rohit
Rathod stated that on 16th November, 1995 the
names of the other accused were disclosed, but he

has arrested them on 30th November, 1995 because
they were not traced out. He denied that he was

cria104.00

doubtful about the participation of said accused
persons in the crime and that is why he arrested
them at a later stage.

18.PW-14 Krushnarao Nathu Salunke deposed

that from 14th September, 1995 to 15th October,
1998 he was attached to L.C.B. Dhule as a P.I. He
deposed that on 17th December, 1995 investigation
of Crime No.339 of 1995 was handed over to him
with all papers for further investigation from
P.I. Rathod. He deposed that then on 3rd January,
1996 he recorded supplementary statement of
Santosh Dada Pawar. On 19th January, 1996 he
recorded supplementary statement of Uttam Kashiram
Yadav. On completing the necessary investigation,

he submitted charge-sheet against all the accused

persons on 30th January, 1996. He deposed that
Exhibit-1 shown to him is the same, it bears his
signature and contents of it are correct. He
further deposed that he also received the C.A.
Report on 9th July, 1996 and then same was

cria104.00

produced in the Court. In his cross-examination,
PW-14 Krushnarao Salunke denied that merely on
suspicion he has filed a charge-sheet against the
accused persons.

19.We have discussed the evidence of all the
witnesses in detail. There is no slightest doubt
in mind that three witnesses i.e. i.e. PW-1
Somnath, PW-2 Uttam and PW-5 Bhilajirao have
witnessed the incident and they have, in minute
details, stated about the assault given by accused
No.1 Raju by Gupti on right lower chest of
Anant. It has come on record that Anant died
instantaneously. Even the police constable PW-12
Ravindra Kedar deposed that when he was on duty,
at about 12.00 to 12.30 p.m. he noticed that some
mob was gathered in front of Bhau Hotel, near the
Pan shop and also noticed one auto rickshaw near
the said mob. Then he rushed to the said spot. He

noticed one person in a injured condition in the
said auto rickshaw. He also noticed that the said

cria104.00

person sustained bleeding injury on middle portion
of chest and blood was oozing from the wound, and
one person namely Santosh Dada Pawar was also with
injured person. He himself took the said rickshaw
to the civil hospital, Dhule along with the said
injured. He admitted the said patient in the
hospital and doctor examined the patient and
opined that he was no more. Nothing fruitful has
been elicited during his cross-examination by the
defence. Therefore, there is evidence of three eye
witnesses, which gets complete corroboration from
the medical evidence i.e. PW-3 Dr. Avinash Ruikar.

20.Upon careful perusal of the findings
recorded by the trial Court, so far accused No.1
Rajendra @ Raju is concerned, the trial Court has
not weighted the evidence brought on record by the
prosecution in its proper perspective. The trial
Court has given undue importance to the minor
contradictions, omissions and improvements. In
fact all the three eye witnesses are consistent

cria104.00

that accused No.1 Rajendra gave blow by Gupti on
right lower chest of deceased Anant and as a
result, he died on the spot. The version of the
said eye witnesses gets complete corroboration

from the medical evidence. The F.I.R. was
registered promptly. Even the evidence of police
constable PW-12 Ravindra Kedar can be taken as
attending circumstances. On the whole the approach
of the trial Court in acquitting accused No.1
Rajendra is not sustainable in law. So far other
accused i.e. accused Nos.2 to 6 are concerned, it
is true that in the first F.I.R. or even in the

first supplementary statement which was recorded
on the day of incident, the informant has not
named them. On the whole the evidence brought on
record by the prosecution against accused Nos.2 to
6 is short to reverse their acquittal and further
to convict them.

21.The Supreme Court in the case of Sanjeev
Kumar Gupta vs. State of Uttar Pradesh (now State

cria104.00

of Uttarakhand)1, in the facts of that case, in

Para 31 of the Judgment, has observed that the
investigation suffers from certain flaws such as
non-recovery of the weapon used by the appellant-
accused and recovery of the bloodstained shirt
after six days of the date of the incident.
However, merely on the basis of these
circumstances the entire case of the prosecution
cannot be brushed aside when it has been proved by
medical evidence corroborated by testimonies of

the prosecution witnesses that the deceased died a
homicidal death. The Supreme Court has further
observed that, this Court has held in Manjit
Singh v. State of Punjab2, that when there is ample
unimpeachable ocular evidence and the same has
received corroboration from medical evidence, non-
recovery of bloodstained clothes or even murder
weapon does not affect the prosecution case.

22.In that view of the matter, we are of the

1 (2015) 11 S.C.C. 69

2 (2013) 12 S.C.C. 746

cria104.00

considered view that order of acquittal of
Respondent Nos.2 to 6 needs no interference and to
that extent, no interference is warranted. So far
accused No.1 Raju is concerned, in the light of
discussion in foregoing paragraphs, we hold that
accused No.1 Raju committed murder of Anant, and
Anant died homicidal death. In the result, the
impugned Judgment and order acquitting accused
No.1 Raju requires to be quashed and set aside.

23. Now we have to consider the alternate
argument of the counsel appearing for the
Respondents that accused No.1 Raju gave only one
blow by Gupti and therefore he may be given the
benefit of Exception-4 to Section 300 of the I.P.
Code. If the entire evidence is considered in
totality, it is true that eye witnesses have

stated that there was some altercation between
accused No.1 Raju and deceased Anant. Gupti was

also given by accused No.2 Zumber to accused No.1

Raju. The circumstances also brought on record

cria104.00

that accused No.1 Raju intended the death of
Anant. It is also true that all the prosecution
witnesses have stated that only one blow of Gupti
was given on right lower chest of Anant.
However if the evidence of prosecution witnesses
and in particular the evidence of PW-11 Babaji
Yadav, who is father of deceased Anant, is
considered, he deposed that 4 to 5 months prior to
the said incident, there was Grampanchayat
election in their village and his elder son namely
Dinkar was elected and it was decided that Dinkar
was to be elected as Deputy Sarpanch of village.

He further deposed that Zumbar i.e. accused No.2
opposed to the name of Dinkar and therefore his
son Dinkar withdrew the name from the election
and since then they were in cross-terms with the
accused. It further reveals from the evidence of
PW-11 Babaji that thereafter he purchased tractor
and after few months accused also purchased

tractor and both the families were giving their
tractors on hire for road work and other work, and

cria104.00

on that count relations between the family of
deceased and family of accused were strained.

.If the evidence of PW-5 Bhilajirao Patil

is perused, he deposed that on the day of incident
i.e. on 2nd November, 1995 at about 10.30 a.m. When

he was returning to his house from the field, he
noticed Ananda Tana, Baban Bavadu and Shantaram
Dada in the bed of river and when he went near
them, at that time Ananda Tana Kadam told him that
Gangaram Rambhau (accused No.5) told him (Ananda
Kadam) that today murder of Anant would take place

at Dhule. If the evidence of PW-6 Ananda Kadam is
perused, he deposed that on the day of incident
i.e. on 2nd November, 1995 at about 9.00 to 9.30
a.m. when he was proceeding towards his field, on

the way one Gangaram Rambhau Yadav (accused No.5)
met him and told that on that day the murder of
Balu (deceased) would take place at Dhule. Thus it
is clear from the evidence of PW-5 Bhilajirao and

PW-6 Ananda that the incident had taken place

cria104.00

pursuant to specific design or plan by accused
No.1 Raju. Therefore, we are unable to persuade
ourselves to accept the arguments of the counsel
appearing for Respondents that the case in hand is
covered under the Exceptions of Section 300 of the
I.P. Code., as it is evident that accused No.1
Raju had given blow of Gupti on the right lower
chest of Anant i.e. on the vital part of the body,
with an intention to cause death of Anant.

24.In the light of discussion in foregoing
paragraphs, an inevitable conclusion is that
accused No.1 Raju committed murder of deceased
Anant, and Respondent Nos.2 to 6 are entitled for
the benefit of doubt. Hence we pass the following
order:-

O R D E R

(I) The Criminal Appeal is partly
allowed.

cria104.00

(II) The Judgment and order dated 30th
November, 1999 passed by the Additional
Sessions Judge, Dhule in Sessions Case
No. 53 of 1996, to the extent of
acquitting original accused No.1/
Respondent No.1 - Rajendra @ Raju
Rambhau Yadav from the offence
punishable under Section 302 of the
Indian Penal Code, is quashed and set
aside.

(II) Accused No.1 Rajendra @ Raju
Rambhau Yadav is convicted for the
offence punishable under Section 302
read with 34 of the Indian Penal Code.
Accused No.1 Rajendra @ Raju Rambhau
Yadavissentencedtosuffer
imprisonment for life and to pay a fine
of Rs.1000/-, in default, to suffer
further imprisonment for Six months. His
bail bonds shall stand cancelled. The
period of detention, if any, be given as
set-off to him.

(III) Accused No.1 Rajendra @ Raju
Rambhau Yadav shall surrender forthwith
before the trial Court. The trial Court

cria104.00

shall ensure that immediately accused
No.1 Rajendra @ Raju Rambhau Yadav is
send to prison to suffer the sentence
awarded to him.

(IV) So far as accused Nos.2 to 6 i.e.
Respondent Nos.2 to 6 herein are
concerned, order of acquittal passed
against them by the trial Court is
maintained, and they are acquitted from
all the offences with which they were
charged. Their bail bonds stand
cancelled.

(V) Order of disposal of the muddemal
property as per impugned Judgment and
order to take effect after appeal
period.

(VI) The Criminal Appeal stands disposed
of, accordingly.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.]

asb/JUN17