An unlawful assembly's attack causing two deaths and injuries led to convictions for murder, causing hurt and armed rioting. The Court dismissed the appeal, upheld the convictions and life imprisonment, and rejected challenges concerning eyewitness omissions and evidence previously recorded in the appellants' absence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cri. Appeal No. 342/2013
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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 342 OF 2013
(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.]
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appellants. Heard both the sides.
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.
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Dhage 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.
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they 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.
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some 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 under section 299 of 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.
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Dhage (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.
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front 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.
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Sanjay 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.
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examination 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.
(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
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of 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.
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be 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 with section 149 of 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.
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when 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.
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beating 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.
(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
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his 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.
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Gyanoji. 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.
(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.
(i) She had not specifically stated before police the
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weapons 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.
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rigor 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 :
(iii) Fracture of right radio ulna bone about its middle 1/3. (iv) Lacerated injuries over posterior surface of right forearm two in numbers :
(v) Lacerated injury on occipital area measuring about 1- 1/2" x 1/2" x 3/4" deep.
injuries 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
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bleeding and it was caused due to head injury mentioned in column No. 17.
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 direction 3 x 1/2 inch,
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(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.
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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.
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conducted 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.
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It 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.
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were available and the evidence already recorded against other accused is accepted by the present appellants.
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injuries to aforesaid witnesses. They are also held guilty for the offence punishable under section 148 of 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.]
ssc/
3 issues framed by the court
Did omissions concerning particulars of the assault undermine the injured eyewitnesses' evidence supporting liability under section 149 IPC?
Could evidence recorded under section 299 Cr.P.C. be used where the appellants accepted it and cross-examined the available witnesses?
Did the convictions for two murders, causing injuries and armed rioting, and the life sentences warrant interference?
Colour shows how this judgement treated each authority
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6 provisions across 3 enactments
Gajendra s/o. Kishan Dhage
Hari @ Nana Kishan Dhage
The State of Maharashtra
T.V. NALAWADE
S.M. GAVHANE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
