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Presented on : 15012005 Registered on: 15012005
Decided on : 16062008 Duration : Exh._____
IN THE COURT OF ADDITIONAL SESSIONS JUDGE,DARWHA. (Presided over by D.R.Shirasao)
Sessions Trial No.4/2005
Complainant :The State of Maharashtra,(Through P.S.O. Ladkhed)=Versus=Accused :1) Maroti Namdeo Shrirame, Aged about 47 years.,2) Vinod Maroti Shrirame, Aged about 19 years.,3) Gopikisan @ Om Parashram Gadmade, Aged about 35 years.,4) Parashram Bakaram Gadmade, Aged about 72 years.,5) Purushottam Parashram Gadmade, Aged about 40 years.,All r/o Mozar(Ijara) Tq. Darwha, Dist.Yavatmal.
==================================================Shri A.G.Shete, A.P.P. appearing for State,Shri R.B. Jadhao, Advocate appearing for accused No.1,Shri M.B.Deshmukh, Advocate appearing for accused No.2,Shri R.P. Sable Advocate appearing for accused No.3 to 5
==================================================
/2/
J u d g m e n t(Delivered on this 16th day of June, 2008)
1.. P.S.O. Ladkhed has filed this case against accused
persons under section 147, 148, 149, 302, 307, 324, 325 and 326 of
Indian Penal Code read with section 4/25 of Arms Act read with
section 135 of Bombay Police Act on the allegations that all accused
persons formed an unlawful assembly for assaulting Sunil Jawalkar
and others and accused no.1 Maroti and 2 Vinod had assaulted Sunil
Jawalkar, Parashram Jawalkar, Chandrashekhar Bulbule and Sunil
Dhoot by swords, intentionally and knowingly and caused their death
and had assaulted Neminath Baiskar, Lochana Jawalkar, Vishwasrao
Jawalkar, Shashikalabai Jawalkar, Dilip Jawalkar and Sushila Dhoot
by swords with intention to kill them and accused No.3 Om Gadmade
had assaulted Neminath Baiskar and others by stick and accused No.4
Parashram Gadmade and accused No.5 Purushottam Gadmade had
instigated them to kill Sunil Jawalkar and others. Brief facts of the
case are as under :
2.. On 1492004 there was a Pola festival. On that day
A.P.I. Dipak Gotmare, who was attached to Ladkhed Police Station
was on night patrolling duty. He received information that quarrel had
taken place at village Mozar. Hence he was coming to village Mozar.
S.T.No. 4/2005/3/ StateVsMaroti+4
When he was at a distance of 3 to 4 K.M. prior to village Mozar, he
had seen one Tractor going to Ladkhed Police Station and five injured
persons were present in that tractor. Hence he had given intimation to
Ladkhed Police Station and directed to take injured persons for
medical examination. Thereafter he had come to village Mozar. On
enquiry he learnt that quarrel had taken place in Pola festival. Hence
he had gone to the spot where Pola festival was arranged. He had seen
blood and cut pieces of fingers lying near Otta of Suresh Bharati. He
also learnt that assault had taken place at the house of Sunil Jawalkar.
Hence he had gone to house of Sunil Jawalkar. He had seen Sunil
Jawalkar lying in injured condition on broken panel of door of his
house. He had also seen Parashram Jawalkar lying in injured
condition in the inner room of house of Sunil Jawalkar. He had also
seen that Chandrashekhar Bulbule was lying in injured condition in
courtyard of house of Sunil Jawalkar near Chamkora plant. He had
sent all these three injured persons to hospital in one Minidor. He had
given intimation about the incident to his higher officers.
3.. At that time Bhaskar Baiskar brotherinlaw of deceasedSunil Jawalkar had given oral report about incident to him. He hadstated that on that day at about 5.00 P.M. Pola festival was arranged invillage Mozar. He had also taken his bullocks in that festival. At thattime his brotherinlaw Sunil Jawalkar was sitting on Otta infront of
/4/
the house of Shamrao Gadmade. He had seen that accused Vinod had
assaulted Sunil Jawalkar by sword and hence Sunil Jawalkar ran away
from that place through the house of Suresh Bharati. He submitted
that as he had seen accused Vinod assaulting Sunil Jawalkar, he
alongwith his brother Neminath had gone there to pacify accused
Vinod. However at that time he had seen accused Maroti in Pola
festival. He submitted that at that time accused Om Gadmade had
assaulted his brother Neminath by stick on his head. Hence accused
Vinod returned back and had assaulted Neminath by sword on his
right leg. He submitted that hence he had taken Neminath alongwih
him and he was taking Neminath to his house. He submitted that
when they had come upto the house of Sunil Jawalkar, at that time
they had seen accused Vinod present in the courtyard of house of
Sunil Jawalkar. Sunil Jawalkar had caught hold sword of accused
Vinod. He submitted that he alongwith other villagers had gone there
to pacify accused Vinod. They had advised Sunil Jawalkar to go
inside his house. He submitted that at that time he had seen accused
Maroti alongwith sword in the courtyard of house of Sunil Jawalkar.
He started going towards his house. However accused Maroti and
Vinod rushed behind him and accused Vinod was intending to assault
him by sword. However he caught hold sword of accused Vinod.
S.T.No. 4/2005/5/ StateVsMaroti+4
However accused Maroti assaulted him by sword from back side on
his back. He alleged in his report that thereafter accused Maroti and
accused Vinod had entered the house of Sunil Jawalkar and assaulted
Sunil Jawalkar and his brother Parashram Jawalkar by swords. He
also alleged that at that time both accused Vinod and accused Maroti
had assaulted Chandrashekhar Bulbule by swords who had come there
to separate the quarrel. He also alleged that both these accused
persons had also assaulted Sulochana Jawalkar, Sunil Dhoot,
Vishwasrao Jawalkar and Shashikalabai Jawalkar by swords and
caused serious injuries to them. He submitted that accused Maroti and
Vinod were suspecting that Sunil Jawalkar had illicit relations with
sister of accused Vinod by name Pushpa. Hence both of them had
assaulted Sunil Jawalkar by swords. He also submitted that both these
accused persons had assaulted Parashram Jawalkar and others who had
come there to protect Sunil Jawalkar. He submitted that he learnt that
Sunil Dhoot, Parashram Jawalkar and Chandrashekhar Bulbule died
while taking them to hospital.
4.. After taking oral report of Bhaskar Baiskar A.P.I.
Gotmare had deployed police persons on spot and had taken Bhaskar
Baiskar to Ladkhed Police Station. On the basis of oral report of
Bhaskar Baiskar A.P.I.Gotmare had initially registered offence
/6/
punishable under section 452, 302, 307 r/w 34 of Indian Penal Code
against accused No.1 to 3 only. He himself started investigating that
offence. He had again come to village Mozar. Complainant Bhaskar
Baiskar had shown spot of incident to him. Accordingly he prepared
panchanama of spot in presence of panch witnesses. He had prepared
panchanama of spot at the otta of Suresh Bharati and had also
prepared panchanama of spot of house of Sunil Jawalkar in presence
of panch witnesses. He had seen blood lying on both the spots. He
had collected simple soil and blood stained soil from both the spots.
He had also seen cut fingers alongwith other articles lying on the spot.
He had also seized all those articles while preparing panchanama of
spot.
5.. A.P..I. Gotmare during night had arrested accused No.3
Omprakash Gadmade. He had also erected a police chauki at village
Mozar infront of house of Shriwallabha Dhoot. On 1592004 at
about 11.15 A.M. accused Maroti and Vinod appeared before A.P.I.
Gotmare in that police chauki and had surrendered themselves to him.
A.P.I. Gotmare had arrested accused Maroti and Vinod. Both of them
had also surrendered their swords to A.P.I. Gotmare. A.P.I. Gotmare
had seized swords and blood stained cloth of accused Maroti and
Vinod in presence of panch witnesses. He had taken both accused
persons to Ladkhed Police Station. He had sent them alongwith
S.T.No. 4/2005/7/ StateVsMaroti+4
accused Omprakash Gadmade for medical examination and for
collecting their blood samples. Medical Officer examined them and
had collected their blood samples. A.P.I. Gotmare had seized their
blood samples.
6.. On 1592004 intimation about death of Sunil Jawalkar
and others was given to City Police Station Yavatmal from District
Hospital Yavatmal. Hence P.S.I. Atalkar had gone to District Hospital
Yavatmal and had prepared inquest panchanama of dead body of Sunil
Jawalkar and Parashram Jawalkar in presence of panch witnesses and
had sent their dead bodies for post mortem examinations. He had
collected their provisional post mortem reports from District Hospital,
Yavatmal. P.S.I. Kurwale had also gone to District Hospital Yavatmal
and had prepared inquest panchanama of dead body of
Chandrashekhar Bulbule and Sunil Dhoot in presence of panch
witnesses and had sent their dead bodies for post mortem
examinations. He had also collected their provisional post mortem
reports from District Hospital Yavatmal. They had registered
accidental death in City Police Station Yavatmal and had sent all
concerned documents to Ladkhed Police Station.
7.. A.P.I. Gotmare had taken police custody remand of
accused No.1 to 3. He had also given requisition letters for medical
/8/
examination of injured Neminath Baiskar, Lochana Jawalkar,
Shashikala Jawalkar and Vishwasrao Jawalkar etc. and had given
letters for collecting their blood samples. He had also given letter to
Tahsildar for preparing map of spot. When accused Maroti was in
police custody he had given memorandum statement in presence of
panch witnesses to discover crowbar from his house. He had also
given memorandum statement to discover nylon rope, groundnut, Gud
and plastic can from the field of Ramlal Pawar. At that time accused
Omprakash Gadmade had also given memorandum statement in
presence of panch witnesses to discover stick from his house. A.P.I.
Gotmare had recorded their memorandum statements. Thereafter
accused Maroti had taken them to his house and had discovered one
crowbar from his house. A.P.I. Gotmare had seized the same from
accused Maroti in presence of panch witnesses. He had also taken
them to the field of Ramlal Pawar and had discovered one nylon rope,
groundnut, Gud and plastic can from that field. A.P.I. Gotmare had
seized all those articles from accused Maroti in presence of panch
witnesses. Thereafter accused Omprakash Gadmade had taken him to
his house and had discovered one stick from his house. A.P.I.
Gotmare had seized the same from accused Omprakash Gadmade in
presence of panch witnesses.
8.. A.P.I. Gotmare had recorded statement of Chabutai
S.T.No. 4/2005/9/ StateVsMaroti+4
Shende on 1792004. He had sent swords to Medical Officer making
query if injuries received by deceased are possible by those swords.
He had also seized blood stained cloth of injured Vishwasrao
Jawalkar, Neminath, Lochana Jawalkar and Shashikalabai Jawalkar.
He had also seized their blood samples. He had received blood stained
cloth of all deceased persons alongwith their blood samples and
viscera bottles. He had seized all those articles. He had sent viscera of
all deceased persons to C.A.Nagpur alongwith forwarding letter.
While preparing spot panchanama he had taken photographs of spot.
He had also taken photographs of spot from where accused persons
had discovered weapons and other articles. Kawadusing had taken
those photographs. A.P.I. Gotmare had seized those photographs
alongwith their negatives from Kawadusing.
9.. P.S.I. Akaram Pawar had recorded statement of Vitthal
Sahare and others. P.S.I. Ramesh Kulkarni had recorded statement of
injured Neminath Baiskar, Vishwas Jawlkar and Archana Jawalkar by
going to District Hospital, Yavatmal. A.P.I.Latpate had recorded
statement of Vinyak Ban and Babita Deokate. Dy.S.P. Parashram
Pawar was supervising the entire investigation. He himself recorded
statements of Dewu Shalke, Lochana Jawalkar etc. He had sent all
other articles seized during investigation of the case to C.A. Nagpur
/10/
alongwith forwarding letter. He received C.A.Reports. He collected
map of spot prepared by Revenue Inspector. He collected medical
certificates of all injured persons. He collected post mortem reports of
all deceased persons. He collected opinion of Medical Officer about
the swords sent to him for verification. During investigation A.P.I.
Latpate had arrested accused No.4 Parashram Gadmade and accused
No.5 Purushottam Gadmade. Dy.S.P. Pawar had also sent witnesses
Chabu Shende, Rambhau Dodke, Seetaram More, Sunita Warathi,
Vanita Jambhulkar and Manish Dodke to Magistrate for recording
their statements under section 164 of Criminal Procedure Code.
During investigation investigation officer had also sent daughter of
accused Maroti by name Pushpa for medical examination and had
obtained her medical certificate. On completion of investigation he
filed chargesheet against accused persons in the Court of J.M.F.C.,
Darwha. C.A. Reports received were also filed on record.
10.. J.M.F.C.Darwha had committed accused persons to this
Court by passing order on 1412005. Accused No.1 to 3 were
produced before this court and accused No.4 and 5 appeared before
this Court. Charge was framed against them as per Exh.33. They
pleaded not guilty to the same and claimed to be tried. Plea of accused
persons were recorded as per Exh.34 to 38. Their defence is that of
denial.
S.T.No. 4/2005/11/ StateVsMaroti+4
11. From facts and circumstances of the case, following
points arise for my determination and I record my findings against
each of them for the reasons given below :
Points : Findings :1) Whether prosecution proves that
death of Sunil Jawalkar, ParashramJawalkar, Chandrashekhar Bulbuleand Sunil Dhoot are homicidal death ? Yes proved.
2) Whether prosecution proves thatall accused persons formed an unlawfulassembly at the time of incident and theywere armed with deadly weapons ? Not proved.
3) Whether prosecution proves that all accusedpersons formed an unlawful assembly at the time of incident and accused No.1and 2 unauthorizedly entered the house of Proved againstSunil Jawalkar after making preparation accused No.1 to assault him and others ? Maroti & No.2
Vinod only.4) Whether prosecution proves that at the time of incident all accused persons formed an unlawful assembly and accused No.1 and 2 assaulted Sunil Jawalkar, Proved againt Parashram Jawalkar and Chandrashekhar accused No.1 Bulbule and Sunil Dhoot by swords and Maroti & No.2 intentionally and knowingly caused their death? Vinod only.
5) Whether prosecution proves that at the time
/12/
of incident all accused persons formed an Proved against unlawful assembly and accused No.1 and 2 accused No.1assaulted Lochana Jawalkar, Vishwasrao Jawalkar Maroti, No.2and Neminath etc. by swords with intention to Vinod & No.3kill them ? Om Gadmade.
u/s.324 of I.P.C.6) Whether prosecution proves that at the time of
incident accused persons were in possession ofprohibited weapons ? Not proved.
7) Whether prosecution proves that on the dateof incident a proclamation was issued undersection 37, 39 and 40 of Bombay Police Actby S.D.M. and accused persons committedbreach of it ? Not proved.
8) What order ? .. As per final order.
=Reasons=As to Point No.1 :
12.. Prosecution had taken evidence of in all 24 witnesses in
the case. Prosecution had taken evidence of complainant Bhaskar
Baiksar as P.W.4 in the case. Prosecution had also taken evidence of
injured Neminath Baiskar as P.W.5, Lochana Jawalkar as P.W.8 and
Vishwasrao Jawalkar as P.W.10 in the case. Prosecution had also
taken evidence of Vinayak Ban as P.W.2, Pralhad as P.W.3 Chabutai
Shende as P.W.6 Manish Dodke as P.W.7, Dewu Shelke as P.W.9 in
S.T.No. 4/2005/13/ StateVsMaroti+4
the case. They are alleged eye witnesses to the incident. Out of them
P.W.2 Vinayak Ban and Pralhad Shende are panch witnesses on spot
panchanama. Prosecution had also taken evidence of Vitthal Sahare as
P.W. 11 in the case. It is the case of prosecution that after incident
both accused Maroti and Vinod had threatened this witness.
Prosecution had taken evidence of panch witness Pradip Meshram as
P.W. 12 in the case. A.P.I. Gotmare had seized swords and blood
stained cloth of accused Maroti and Vinod in presence of this witness.
Prosecution had taken evidence of panch witness Kawadusing Ade as
P.W.13 in the case. He is panch witness on seizure of blood samples
of accused Maroti, Vinod and Om Gadmade. He is also panch witness
on seizure of cloth of injured Vishwas Jawalkar, Shashikalabai
Jawalkar, Neminath Baiskar and Lochana Jawalkar. He is also panch
witness on memorandum statement of accused Maroti and Om
Gadmade and seizure of crowbar and other articles discovered by
accused Maroti and seizure of stick discovered by accused Om
Gadmade. He had also taken photographs of spot and other places.
A.P.I. Gotmare had seized photographs alongwith their negatives from
this witness. Prosecution had also taken evidence of Bharat Aswar as
P.W.1 in the case, in whose presence blood samples were seized.
Prosecution had also taken evidence of Chandrashekhar Bathe as
/14/
P.W.14 in the case. He is panch witness on memorandum statement of
Sunil Jawalkar, Parashram Jawalkar and Sunil Dhoot. Prosecution had
also taken evidence of Tukaram Ramteke as P.W.15 in the case. He
had prepared map of spot. Prosecution had taken evidence of Dr.
Dayanand Kolape as P.W.17 and Dr. Ajit Malani as P.W.21 in the
case. Both these witnesses had conducted post mortem examinations
on dead bodies of Sunil Jawalkar, Parashram Jawalkar, Sunil Dhoot
and Chandrashekhar Bulbule. Prosecution had taken evidence of Dr.
Sunil Pardeshi as P.W.18 in the case. He had medically examined
injured Shashikalabai Jawalkar and Sushilabai Dhoot. Prosecution
had taken evidence of Dr. Narsing Rathod as P.W.19 in the case. He
had medically examined accused Maroti and Vinod. Prosecution had
taken evidence of A.P.I. Gotmare as P.W.16, P.S.I. Akaram Pawar as
P.W.20. P.S.I. Ramesh Kulkarni as P.W.23 and A.P.I.Latpate as
P.W.24 in the case. Prosecution had also taken evidence of Dy.S.P.
Parashuram Pawar as P.W.22 in the case. Thereafter prosecution
closed the case by filing pursis on record at Exh.189.
13.. It is the case of prosecution that accused no.1 and 2 were
suspecting that Sunil Jawalkar had illicit relations with daughter of
accused no.1 by name Pushpa. It is also the case of prosecution that
Sunil Jawalkar had given his bullocks and bullockcart to accused
Maroti. However he had unauthorizedly sold the same and
S.T.No. 4/2005/15/ StateVsMaroti+4
misappropriated that amount. It is also the case of prosecution that
there was dispute in between Sunil Jawalkar and accused No.1 and 2
on account of taking grocery articles on credit by accused No.1 and 2
from the shop of Sunil Jawalkar. Hence it is the case of prosecution
that accused persons were enimically disposed off against Sunil
Jawalkar and others. Hence on the day of Pola festival when Pola
festival was arranged accused Vinod assaulted Sunil Jawalkar by
sword. However Neminath had protected Sunil Jawalkar by giving
kick blow to accused Vinod. Hence accused Om Gadmade had given
stick blow to Neminath. Accused Vinod also assaulted him by sword.
Thereafter both accused No.1 and 2 started chasing Sunil Jawalkar.
However he ran away through the house of Suresh Bharati and had
gone to his house. It is the case of prosecution that hence accused
no.1 and 2 had gone to the house of Sunil Jawalkar alongwith swords
in their hands. Parashram Jawalkar and others tried to pacify accused
no.1 and 2. Accused No.1 and 2 did not listen them and
unauthorizedly entered the house of Sunil Jawalkar by breaking open
door of his house. It is the case of prosecution that accused No.1 and
2 had assaulted Sunil Jawalkar and Parashram Jawalkar present inside
the house by swords and caused their death. It is also the case of
prosecution that Chandrashekhar Bulbule and Sunil Dhoot had come
/16/
there to separate the quarrel and take the injured to hospital. However
accused no.1 and 2 also assaulted them by swords and killed them. It
is the case of prosecution that at that time accused no.1 and 2 had also
assaulted Lochana Jawalkar, Shashikala Jawalkar, Vishwasrao
Jawalkar and others by swords with intention to kill them. It is the
case of prosecution that thereafter accused no.1 and 2 had gone to the
house of Neminath to kill him. They had also created terror in the
locality by giving threats to Vitthal Sahare and others.
14.. The learned A.P.P. appearing for prosecution submitted
that to prove the offence against accused persons prosecution had
taken evidence of witnesses who were injured at the time of incident
and the witnesses who had seen incident. He submitted that Lochana
Jawalkar and Vishwasrao Jawalkar who are examined in the case
were injured at the time of incident. Witness Neminath was also
injured in Pola festival. He submitted that prosecution had also taken
evidence of complainant Bhaskar Baiskar, Neminath, Manish Dodke
and others to prove the incident that had taken place in Pola festival.
He submitted that prosecution had also taken evidence of Chabu
Shende, Pralhad Shende, Vinayak Ban, Deu Shelke who are eye
witnesses to the incident. He submitted that from evidence of all these
witnesses it has become clear that accused Vinod had assaulted Sunil
Jawalkar and Neminath by sword in Pola festival and accused Om
S.T.No. 4/2005/17/ StateVsMaroti+4
Gadmade had assaulted Neminath by stick in Pola festival. He
submitted that from evidence of these witnesses it has become clear
that accused No.1 and 2 had assaulted Sunil Jawalkar and Parashram
Jawalkar by unauthorizedly entering in their house by swords and
killed them. From evidence of these witnesses it has also become
clear that accused No.1 and 2 had also assaulted Sunil Dhoot and
Chandrashekhar Bulbule by swords, who had come there to separate
the quarrel and caused their death. From evidence of these witnesses
it has become clear that at the time of incident accused No.1 and 2 had
assaulted Lochana Jawalkar, Vishwasrao Jawalkar and others by
swords with intention to kill them. Hence the learned A.P.P.
appearing for prosecution submitted that prosecution proved all the
offences against accused persons. He submitted that accused No.3 Om
Gadmade participated incident. Accused No.4 and 5 were also present
at the time of incident and had instigated accused no.1 and 2 to kill
Sunil Jawalkar and others. Hence he submitted that all accused
persons formed an unlawful assembly at the time of incident and all of
them are responsible for causing death of Sunil Jawalkar and others
and causing serious injuries to Lochana Jawalkar and others.
15.. The learned A.P.P. appearing for prosecution for that
purpose relied on IV (1999) C.C.R. 165 (Supreme Court) Leelaram
/18/
Vs State of Hariyana. In this ruling it is observed that there is no
set pattern or uniform rule of human reaction to the incident. The
Hon'ble Court considered that hence discrepancies between narration
of incident by different witnesses should not render their evidence
unbelievable. He also relied on I (2004) C.C.R. 403 (Supreme
Court) Charansing Vs State of U.P. In this ruling the Hon'ble
Court considered that common object is to be differentiated with
common intention. The act of five or more than five persons to
achieve a common object is sufficient to fasten all of them by applying
of provision of section 149 of Indian Penal Code. He also relied on I
(2002) C.C.R. 101 (Supreme Court) Lehana Vs State of
Hariyana. In this ruling the Hon'ble Apex Court had given guideline
when death sentence can be imposed. He also relied on IV (2004)
C.C.R. 36 (Supreme Court) Anilkumar Vs State of U.P. In this
ruling it is observed that if injuries sustained by accused persons are
minor and superficial then prosecution case will not be affected only
because of nonexplanation of injuries received by accused persons.
He also relied on A.I.R. 2002 Supreme Court 3164 Bodhraj Vs
State of Jammu and Kashmir. In this ruling it is observed that when
statements of important witnesses were recorded immediately after
incident and statements of of the witnesses were recorded
S.T.No. 4/2005/19/ StateVsMaroti+4
subsequently then it cannot be said that delay caused in examining
witnesses is fatal to prosecution.
16.. Heard learned Advocates appearing for accused No.1 and
2. They submitted their notes of arguments as per Exh.199. They
mainly contested case on the ground that prosecution failed to prove
sufficient motive for causing death of four persons by accused
persons. They submitted that statements of all the material witnesses
examined in the case were recorded late. Hence they submitted that
they are got up witnesses. They also submitted that hence their
evidence is full of contradictions and omissions. They submitted that
prosecution has not given any explanation about late recording of
statements of these witnesses. They submitted that moreover many of
the witnesses examined in the case are related to Sunil Jawalkar and
others and some of the witnesses are enimically disposed off against
accused persons. Hence they submitted that evidence of all these
witnesses cannot be accepted against accused persons. They submitted
that A.P.I. Gotmare had received information about incident when he
was on patrolling. He submitted that information received by him
should be considered as F.I.R. They submitted that Bhaskar Baiskar
had not seen incident that had taken place in the house of Sunil
Jawalkar. Hence he had no knowledge about the incident that had
/20/
taken place in the house of Sunil Jawalkar. Hence report given by him
about that incident is of no use to prosecution. They submitted that
complainant had not given names of witnesses who had seen incident
in F.I.R. There is no evidence on record that copy of F.I.R. was
promptly sent to Magistrate. Hence they submitted that subsequently
false report was taken in the name of Bhaskar Baiskar. They
submitted that A.P.I. Gotmare had not properly prepared panchanama
of spot. Although he had seized cut fingers lying on the spot he had
not preserved the same. He had also not collected medical evidence to
show that the same were of Sunil Jawalkar. He had not separately
seized articles from spot. It is the contention of prosecution that some
of the witnesses had seen incident through window of house of Sunil
Jawalkar and from above the compound wall of house of Pralhad
Shende. However in that respect there is nothing mentioned in spot
panchanama. In spot panchanama there is also no mention where all
four dead bodies were lying. Hence they submitted that the spot
panchanama prepared by A.P.I. Gotmare is not giving clear idea of
spot of incident. He had also not seized broken panels of door on
which Sunil Jawalkar was assaulted. He had also not seized utencils
and cloths from the house of Sunil Jawalkar. They submitted that
Kawadusing Ade had taken photographs of spot. However
prosecution had not taken evidence in that respect on record. Hence
S.T.No. 4/2005/21/ StateVsMaroti+4
they submitted that photographs taken by Kawadusing are not
properly proved in the case and hence the same cannot be considered.
They submitted that to prove memorandum statement of accused No.1
to 3 prosecution had taken evidence of panch witness Kawadusing in
the case. However he is habitual panch witness of police. Prosecution
had also taken evidence of panch witness on seizure of cloth of injured
witnesses. However evidence given by these witnesses is not tallying
with documents prepared by investigating officer. The time given by
panch witness is different than mentioned in panchanamas. They
submitted that from evidence of panch witness Pradip Meshram it has
become clear that swords and clothes of accused no.1 and 2 were not
seized in his presence. They submitted that there is no evidence on
record that articles seized were sealed. On the contrary there is
evidence on record that all the articles seized were lying in Police
Station. There is no evidence that they were properly kept in
Malkhana of Police Station. Hence they submitted that under such
circumstances tampering of articles seized cannot be ruled out. They
submitted that the Medical Officers who conducted post mortem
examinations have not produced on record the notes taken by them.
They conducted post mortem examinations on all four dead bodies and
had subsequently started preparing post mortem reports. Hence they
/22/
submitted that in absence of notes post mortem reports prepared by
them cannot be accepted in the case. They submitted that there is no
evidence on record that swords seized were having blood of deceased
persons. They submitted that prosecution had not taken evidence of
Medical Officer who had medically examined Lochana Jawalkar and
Vishwasrao Jawalkar, who are examined in the case. Prosecution had
not taken evidence of other injured witnesses in the case. Hence
evidence of other witnesses in respect of injuries caused to them
cannot be taken into consideration. Medical Officers had not
mentioned in medical certificates that injuries received by injured
persons were sufficient to cause their death. Hence they submitted
that there is no application of section 307 of Indian Penal Code against
accused persons. They submitted that prosecution has produced map
of spot on record. However the same is not giving clear idea about the
spot. On the contrary the map is not tallying as per oral evidence of
witnesses. Hence the same cannot be considered in the case. They
submitted that accused No.1 and 2 were injured at the time of incident.
However prosecution had not given any explanation about their
injuries. From viscera report it has become clear that all four deceased
persons had consumed liquor. Under such circumstances the defence
of accused persons appears probable that Sunil Jawalkar and
Parashram Jawalkar were moving swords under influence of liquor
S.T.No. 4/2005/23/ StateVsMaroti+4
and because of which they caused injuries to each other and also to
Sunil Dhoot and Chandrashekhar Bulbule and caused their death.
They submitted that under such circumstances it was required for
prosecution to prove injuries received by accused No. 1 and 2 at the
time of incident. They submitted that as articles seized were not
sealed at the time of incident and delay was caused in sending them to
C.A.Nagpur, the C.A.Reports produced on record cannot be taken into
consideration. They submitted that moreover the C.A.Report
produced on record are not helpful to prosecution to prove the offence
against accused persons. They submitted that in respect of causing
death of Parashram Jawalkar and others there is evidence of Vinayak
Ban, Pralhad Shende, Chabutai Shende and Lochana Jawalkar on
record. However statement of Vinayak Ban was recorded after 2 ½
months and statement of Lochana was recorded after 2 and ¼ th
month. There is no evidence of record that Vinayak Ban was not
available in village and Lochana was not in a position to give
statement as her teeth were stitched. Hence evidence of these
witnesses cannot be considered. From evidence of Pralhad Shende
and Chabutai Shende it has become clear that they had only seen part
of incident by remaining present on spot. Rests of the incident were
seen by them from window of house of Sunil Jawalkar and from above
/24/
compound wall of their house. However from evidence of witnesses it
has become clear that nothing in the house of Sunil Jawalkar is visible
from the house of Pralhad Shende. Under such circumstances,
evidence of these witnesses in respect of incident appears to be
concocted. They are interested in Sunil Jawalkar and enimically
disposed off against accused No.1 and 2. Under such circumstances
evidence of these witnesses cannot be accepted. From evidence of
Vinayk Ban and Deu Shelke it cannot be accepted that they had seen
incident. Hence they are created witnesses. They submitted tht
evidence of Bhaskar Baiskar, Neminath Baiskar and Manish Dodke is
restricted to the incident that had taken place in Pola festival. It
cannot be accepted that they had seen incident that had taken place at
the house of Sunil Jawalkar. They submitted that moreover
prosecution had taken evidence of Vishwasrao Jawalkar. At the time
of incident he was present on the spot. He was injured at the time of
incident. However he had not stated anything how Sunil Jawalkar and
others were killed. Hence they submitted that evidence of all alleged
eye witnesses is contradictory to each other and hence their evidence
cannot be accepted against accused persons. They submitted that
prosecution failed to bring other clinching circumstances on record to
prove the offence against accused persons. They submitted that there
is no evidence who had assaulted Chandrashekhar Bulbule and caused
S.T.No. 4/2005/25/ StateVsMaroti+4
his death. Hence they submitted that looking to contradictory
evidence of witnesses defence of accused persons appears probable.
Hence they submitted that prosecution failed to prove any of the
offence against accused persons.
17.. The learned Advocates appearing for accused No.1 and 2
relied on 2007 All M.R. (Criminal) 2304 StateVsDigambar
Asgaonkar. They also relied on A.I.R. 1979 (S.C.) 1456
Umashankar Vs State of U.P. They also relied on 2007 All M.R.
(Criminal) 839 Sham Vs State of M.P. They also relied on 2006
All M.R. (Criminal) NOC 136 Vickey KarwadeVsState. In all
these rulings it is observed that if witnesses examined by prosecution
are interested witnesses or enimically disposed off against accused
persons then evidence of such witnesses is to be scrutinized carefully
in the case. They also relied on 2008 All M.R. (Criminal) 360 Sunil
Shambharkar Vs State of Maharashtra. In this ruling it is
observed that statements of witnesses were recorded late and in that
respect no explanation was given by prosecution. The delay is fatal to
prosecution.
18.. The learned Advocate appearing for accused No.3 to 5
has submitted that prosecution failed to prove presence of all five
accused persons either at the time of incident that had taken place in
/26/
Pola festival or at the time of incident that had taken place at the house
of Sunil Jawalkar. Hence he submitted that there will not be
application of provision of section 149 of Indian Penal Code. The
evidence of prosecution witnesses cannot be accepted that accused no.
4 and 5 were present at the time of incident that had taken place in
Pola festival. Evidence of prosecution witnesses cannot be accepted
that accused no.3 was present at the time of incident that had taken
place at the house of Sunil Jawalkar. The evidence of prosecution
witnesses cannot be accepted that accused No.4 and 5 had instigated
accused No.1 and 2 to kill Sunil Jawalkar and others. He submitted
that the contention of prosecution cannot be accepted that accused
No.3 had assaulted Neminath by stick on his head. In that respect
there is no medical evidence on record. The contention of prosecution
also cannot be accepted that accused no.3 had discovered stick from
his house. The evidence of panch witness examined on this point is
contrary to the documents prepared by investigation officer. Hence he
submitted that prosecution failed to prove any of the offences against
accused No.3 to 5.
19.. The learned Advocate appearing for accused No.3 to 5 for
that purpose relied on 2007 All SCR 2133 State of Panjab Vs Sanjiv
Kumar. In this case there was no evidence that respondents shared
common object. In this case prosecution failed to prove definite role
S.T.No. 4/2005/27/ StateVsMaroti+4
of respondents at the time of incident. Hence the Hon'ble Court
considered that mere presence of respondents at the time of incident
will not go to prove that they were members of unlawful assembly,
having common object of assembly. He also relied on 1995 Criminal
Law Journal 3992 Jackransing Vs State of Panjab. In this case
there was no signature of thumb impression of accused on his
memorandum statement. The Hon'ble Court considered that under
such circumstances memorandum statement of accused appears
unreliable. He also relied on 2007 All SCR 1987 Sunil Bhoi Vs
State of Maharashtra. In this case appellants were unarmed and
were also not knowing deceased and they had not participated
incident. The Hon'ble Court considered that prosecution failed to
prove that appellants had common object of commission of an offence.
As to Point No.1 :
20.. It is the case of prosecution that accused No.1 and 2 had
assaulted Sunil Jawalkar, Parashram Jawalkar, Sunil Dhoot and
Chandrashekar Bulbule by swords and caused their death. Hence
prosecution alleged that death of all these four persons is homicidal
death. From evidence of Investigation Officer A.P.I. Gotmare it has
become clear that when he was on patrolling duty in the evening he
received message about incident and hence he was coming to village
/28/
Mozar. In the way he had seen one tractor containing injured persons
containing Sunil Dhoot. He had given direction in Ladkhed Police
Station to take injured for medical examination. However injured
Sunil Dhoot was found dead in hospital. A.P.I.Gotmare had come to
village Mozar and had gone to the spot at the house of Sunil Jawalkar.
He had seen Sunil Jawalkar, Parashram Jawalkar in injured condition
inside the house of Sunil Jawalkar and had seen Chandrashekhar
Bulbule lying in injured condition in the couryard of house of Sunil
Jawalkar. He had sent all of them to District Hospital in one Minidor.
However all of them were declared dead in hospital. In that respect
intimation was given to City Police Station Yavatmal. P.S.I. Atalkar
had gone to District Hospital Yavatmal and prepared inquest
panchanama of dead body of Sunil Jawalkar and Parashram Jawalkar
and had sent their dead bodies for post mortem examinations. P.S.I.
Kurwade had prepared inquest panchanama of dead body of Sunil
Dhoot and Chandrashekhar Bulbule and had sent their dead bodies for
post mortem examinations. Prosecution had taken evidence of
Chandrashekhar Bathe as P.W. 14 in the case. He is independent
panch witness on inquest panchanama of Sunil Jawalkarm, Parashram
Jawalkar and Sunil Dhoot. The same are produced on record at Exh.
103 to 105. The learned Advocates appearing for accused persons
admitted inquest panchanama of dead body of Chandrashekhar
S.T.No. 4/2005/29/ StateVsMaroti+4
Bulbule. The same is produced on record at Exh.143.
21.. Prosecution had taken evidence of Dr. Kolape as P.W.17
and Dr. Malani as P.W. 21 in the case. They had conducted post
mortem examinations on dead body of Sunil Jawalkar and others.
From evidence of these witnesses it appears that they conducted all
four post mortem examinations and had taken notes about the same.
Thereafter they started writing postmortem reports on the basis of
notes taken by them. The learned Advocates appearing for accused
persons submitted that the relevant notes taken by these witnesses
were not given by them to police and have not produced the same on
record. They also submitted that both these witnesses had not
conducted post mortem examinations in day light. Hence they
submitted that post mortem reports prepared by these witnesses cannot
be accepted. However I am of the opinion that only on these grounds
post mortem reports prepared by these witnesses cannot be
disbelieved. They also submitted that Dr. Kolape was post graduate
student in V.N.G.M.C. and Hospital Yavatmal and was assisting Dr.
Malani. Hence he had no authority to conduct post mortem
examinations and he admitted this fact during crossexamination.
However the contention of learned Advocate appearing for accused
persons in this respect cannot be accepted. Moreover prosecution had
/30/
also taken evidence of Dr. Malani who had conducted post mortem
examinations on dead bodies of these four dead persons. Hence I am
of the opinion that evidence of both these witnesses can be collectively
considered. From evidence of both these witnesses it has become
clear that Sunil Jawalkar had received as many as 35 injuries on his
body and many of the injuries were chop wounds and many of the
injuries were incised wounds. As per evidence of these witnesses
death of Sunil Jawalkar had taken place due to injury to brain and
hemorrhage and shock due to multiple chop wounds received by him.
From evidence of these witnesses it has become clear that Parasram
Jawalkar had received as many as 24 injuries on his person and many
of the wounds were chop wounds. As per evidence of these witnesses
death of Parashram Jawalkar had taken place due to hemorrhage and
shock due to multiple chop wounds and due to transaction of spinal
cord. As per evidence of these witnesses Chandrashekhar Bulbule had
received as many as 13 injuries on his person and many of the injuries
were chop wounds and incised wounds. As per evidence of these
witnesses Chandrashekhar Bulbule died due to shock due to
hemorrhage due to multiple chop injuries. As per evidence of these
witnesses Sunil Dhoot had received chop wounds on his neck. As per
evidence of these witnesses Sunil Dhoot died due to shock due to
hemorrhage due to chop wounds on neck. As per evidence of these
S.T.No. 4/2005/31/ StateVsMaroti+4
two medical officers injuries received by all these four persons are
antimortem. The post mortem examinations reports of all these four
dead persons are produced on record at Exh.131, 133, 135 and 137.
22.. It is the case of prosecution that accused no.1 and 2 had
assaulted all these four persons by swords. It is the case of
prosecution that accused No.1 and 2 surrendered their swords before
A.P.I. Gotmare. The same were sent to Medical Officers for
verification and opinion. These two medical officers after examining
both the swords had given opinion that injuries received by all these
four persons are possible by those swords. The same is produced on
record at Exh.138. Hence from evidence of these two medical officers
it has become clear that all these four persons died due to assault by
swords. In this case it is particular to note that the learned Advocates
appearing for accused persons crossexamined all prosecution
witnesses examined in the case. From crossexaminations of these
witnesses it appears that it is the defence of accused persons that Sunil
Jawalkar and Parashram Jawalkar were under influence of liquor and
were moving swords. The same caused injures to them and also
caused injuries to Sunil Dhoot and Chandrashekhar Bulbule. Hence it
is the contention of learned Advocate appearing for accused persons
that because of the same all these four persons died. Hence it has
/32/
become clear that it is also the contention of all accused persons that
all these four persons died as they received injuries by swords at the
time of incident. Under such circumstances, I am of the opinion that
prosecution proved that death of all these four persons is homicidal
death. Hence I answer point no.1 in affirmative.
23. It is the case of prosecution that initially accused
Vinod had assaulted Sunil Jawalkar by sword in Pola Festival.
At that time, Neminath obstructed him and had given kick blow to
accused Vinod. Hence sword from the hand of Vinod fell down.
Hence accused Om Gadmade had assaulted Neminath by stick on his
head. Thereafter accused Vinod had lifted his sword and assaulted
Neminath by sword on his leg. By that time, Sunil Jawalkar ran away
from there through the house of Suresh Bharti. Hence accused Vinod
and Maroti rushed behind him. It is the case of prosecution that
second incident had taken place at the house of Sunil Jawalkar. Both
accused Maroti and Vinod had gone there along with swords in their
hands. Initially, Parashram Jawalkar and others pacified accused
Maroti and Vinod and had sent Sunil Jawalkar inside the house.
Accused Vinod had assaulted Parashram Jawalkar by sword on his
hand and thereafter he had also gone inside the house of Sunil
Jawalkar. At that time, Chandrashekhar Bulbule had come there to
rescue the quarrel. However, accused Maroti assaulted him by sword
S.T.No. 4/2005/33/ StateVsMaroti+4
and caused serious injuries to him. Thereafter, both accused Maroti
and Vinod had lifted Chandrashekhar Bulbule and had thrown him
near the shrub of Chamkora in the court yard of house of Sunil
Jawalkar. At that time, Sunil Dhoot had also come there to take
injured to hospital. However, accused Vinod assaulted him by sword
on his neck and caused serious injuries to him. He had also gone
inside the house of Sunil Jawalkar. It is the case of prosecution that
thereafter accused Maroti and Vinod broke open door of house of
Sunil Jawalkar. Sunil Jawalkar fell down on the panel of door. They
assaulted Sunil Jawalkar by swords causing serious injuries to him.
Thereafter, they had gone inside the house and assaulted Parashram
Jawalkar by swords causing serious injuries to him. It is the case of
prosecution that at that time accused Maroti had assaulted Lochana
Jawalkar on her face. It is the case of prosecution that accused Maroti
had also assaulted Sulochanabai Jawalkar and Vishwasrao Jawalkar.
Thereafter both accused Maroti and Vinod had gone to the house of
Neminath to kill him.
24. To prove all these facts, prosecution had taken
evidence of injured witnesses Neminath Baiskar as P.W.5, Lochana
Jawalkar as P.W.8 and Vishwas Jawalkar as P.W.10 in the case.
Prosecution had also taken evidence of Vinayak Ban as P.W.2,
/34/
Pralhad Shende as P.W.3 and and Deu Shelke as P.W.9 in the case.
They are witnesses on both the incidents. Prosecution had taken
evidence of complainant Bhaskar Baiskar as P.W.4, Manish Dodke as
P.W.7 in the case. They are mainly on the incident that had taken
place in Pola festival. Prosecution had taken evidence of Chabutai
Shende as P.W.6 in the case. She is mainly on the incident that had
taken place at the house of Sunil Jawalkar.
25. P.W.2 Vinayak Ban has stated in his evidence that on the
date of incident at about 5.00 P.M. he was present in Pola festival. He
heard shouts and had seen that Sunil Jawalkar was sitting on otta and
accused Vinod assaulted Sunil Jawalkar by sword on his neck.
However Sunil Jawalkar raised his hand to protect him. He had also
seen that at that time Neminath had come there and he had given kick
blow to accused Vinod. Hence the sword from the hand of Vinod fell
down. At that time accused Om Gadmade had come there and he had
given stick blow to Neminath. Hence Neminath fell down. Thereafter
accused Vinod lifted sword and assaulted Neminath on his leg.
Thereafter accused Vinod rushed behind Sunil Jawalkar. He had also
stated in his evidence that thereafter he was going to his house. He
had seen that accused Maroti and Vinod were going to the house of
Sunil Jawalkar alongwith swords in their hands. Chandrashekhar
Bulbule had gone there to rescue Sunil Jawalkar. However accused
S.T.No. 4/2005/35/ StateVsMaroti+4
Maroti threatened him and assaulted him by sword on his neck.
Thereafter accused Maroti and Vinod lifted Chandrashekhar Bulbule
and had thrown him in the shrubs. He also submitted that at that time
Sunil Dhoot had also come there. Accused Vinod assaulted him by
sword. Sushilabai Dhoot had taken him inside the house. He
submitted that by that time accused Parashram Gadmade and Om
Gadmade had come there and stood by the side of well infront of
house of Sunil Jawalkar. He also submitted that thereafter accused
Maroti had broken door of house of Sunil Jawalkar. Sunil Jawalkar
fell down on the broken panel of door of his house. Accused Maroti
and Vinod cut him into pieces with swords. Wife of Sunil Jawalkar by
name Lochana Jawalkar had fell on the person of Sunil Jawalkar to
protect him. She had also received injury on her head. He submitted
that thereafter accused Maroti and Vinod had gone out of house saying
that they had cut Sunil Jawalkar and Chandrashekhar Bulbule. He
submitted that before two months of incident Sunil Jawalkar had given
his bullocks to accused Maroti. However accused Maroti had sold
the same.
26. During crossexamination of this witness many of the
omissions are brought on record. However the omissions which are
proved during crossexamination of investigating officer can be taken
/36/
into consideration. Statement of this witness was recorded by A.P.I.
Latpate. From crossexamination of A.P..I. Latpate it appears that
Vinayak Ban had not stated to him that accused Maroti and Vinod
were going to the house of Sunil Jawalkar by holding swords intheir
hands. He had also not stated that accused Maroti and Vinod had
thrown dead body of Chandrashekhar Bulbule in the shrubs. He had
also not stated that Sunil Jawalkar fell down on broken panel of door
of his house. He had also not stated that Lochana fell down on him to
protect him and she received injury to her head. He had also not stated
that accused Maroti and Vinod were shouting that they had killed
Sunil Jawalkar and Chandrashekhar Bulbule. From crossexamination
of A.P.I. Latpate it appears that Vinayak Ban had not stated to him that
Sunil Jawalkar was sitting on otta of Suresh Bharati. He had also not
stated that accused Vinod was assaulting Sunil Jawalkar on his neck
by sword. He had also not stated that Neminath fell down on the
ground. He had also not stated that as Neminath had given kick blow
to Vinod, he fell down. He had also not stated that accused Om
Gadmade had given stick blow on the head of Neminath and hence
Neminath fell down on the ground. From crossexamination of A.P.I.
Latpate it appears that Vinayak Ban had not told him that Om
Gadmade had also come to the house of Sunil Jawalkar and was
standing near well. Irrespective of all these omissions it appears that
S.T.No. 4/2005/37/ StateVsMaroti+4
this witness had stated all the material facts to police while recording
his statement. At the most from crossexamination of this witness it
appears that he had not stated before police that when accused Maroti
and Vinod were going to the house of Sunil Jawalkar swords were in
their hands. He had not stated before police that accused Maroti and
Vinod had thrown dead body of Chandrashekhar Bulbule in the
shrubs. He had not stated before police that Lochanabai fell down on
the person of Sunil to protect him and hence she received injury to her
head. He had not stated before police that both accused Maroti and
Vinod were shouting that they had killed Sunil Jawalkar and
Chandrashekhar Bulbule. Looking to all these omissions I am of the
opinion that they are not of material in nature. From cross
examination of this witness it appears that he had not stated before
police that Vinod had assaulted Sunil Jawalkar by sword on his neck
and Sunil Jawalkar raised the hand to protect himself. He had not
stated before police that Vinod rushed on Neminath and Om Gadmade
assaulted Neminath on his head. Looking to these omissions brought
on record I am of the opinion that they are not of material in nature
and irrespective of that this witness has stated all material facts before
police. From crossexamination of this witness it appears that the
material omission brought on record is that Om Gadmade had
/38/
assaulted other persons by moving stick and he had come to the house
of Sunil Jawalkar and was standing near well. Under such
circumstances, I am of the opinion that only these material omissions
can be taken into consideration. From crossexamination of this
witness it appears that his statement was recorded on 30112004 after
a period of about 2½ months. From crossexamination of this witness
it appears that he had given evidence in one Civil Suit against accused
Maroti which was in respect of plot. However this witness specifically
denied that since then he was on crossterms with accused Maroti and
was on enimical terms with him. From crossexamination of this
witness it appears that when he had gone near well he had seen
Chandrashekhar lying dead in the shrubs. He also admitted that as
door of house of Sunil Jawalkar was closed he was not knowing who
were already present inside the house.
27. Prosecution had taken evidence of Pralhad Shende as
P.W.3 in the case. He had also stated in his evidence that on the date
of incident at abut 5.00 P.M. he was present in Pola festival. He had
seen that accused Vinod was chasing Sunil Jawalkar alongwith sword
in his hand. At that time Sunil Jawalkar was sitting on Otta of Suresh
Bharati. He submitted that at that time Neminath had given kick blow
to Vinod. Hence sword from the hand of Vinod fell down. At that
time Om Gadmade had given stick blow to Neminath on his
S.T.No. 4/2005/39/ StateVsMaroti+4
head. Om Gadmade had asked Vinod to lift his sword and assault
Neminath. Hence accused Vinod lifted his sword and assaulted
Neminath on his leg. He submitted that by that time Sunil Jawalkar ran
away through the courtyard of Suresh Bharati and closed door of his
courtyard from inside. He had stated in his evidence that he was going
to his house. He had seen accused Maroti and Vinod alongwith
swords in the house of Sunil Jawalkar. Hence he had also gone there.
He pacified accused Maroti not to assault Sunil Jawalkar. At that time
Parashram Jawalkar had caught hold sword of accused Maroti. Hence
he received bleeding injury to his palm. At that time accused Vinod
had also assaulted him by sword on his wrist and caused injury to him.
He submitted that at that time his wife Chabutai Shende was present
there and she was applying bandage to the hand of Parashram
Jawalkar. He submitted that thereafter he had gone to the house of
Shriwallabha Dhoot for giving message about incident in Police
Station. After some time he returned back to his house. Thereafter he
had seen towards house of Sunil Jawalkar from above the wall of his
house. At that time he had seen accused Maroti and Vinod in the
house of Sunil Jawalkar alongwith swords in their hands. At that time
Sunil Jawalkar had come there. However accused Vinod had
assaulted him by sword on his neck. Hence Sushilabai Dhoot had
/40/
taken him inside the house of Sunil Jawalkar. He submitted that
thereafter accused Vinod and Maroti broke open door of house of
Sunil Jawalkar with the help of crowbar. He submitted that thereafter
he had gone to other side of his house from where window of house of
Sunil Jawalkar was visible. He had seen that both Sunil Jawalkar and
Lochana Jawalkar were holding panels of door from inside. When the
same was broken Sunil fell down on broken panel of door alongwith
Lochana. Thereafter accused Maroti and Vinod assaulted Sunil
Jawalkar by swords. He submitted that at that time his wife Chabutai
Shende had pulled Lochana inside the house. He submitted that
thereafter accused Maroti and Vinod had entered house of Sunil
Jawalkar. Thereafter he had heard shouts of assault. He had also
stated in his evidence that accused Maroti and Vinod had gone to the
house of Neminath to kill him. He had stated in his evidence that at
the time of incident Chandrashekhar Bulbule had come there to pacify
accused Maroti and Vinod. However they killed him. He also
submitted that in that incident accused Maroti and Vinod had assaulted
Vishwasrao Jawalkar, Shashikala Jawalkar, Sunil Dhoot and Lochana
Jawalkar by swords and caused injuries to them. He had stated in his
evidence that accused Maroti and Vinod were suspecting that Sunil
Jawalkar had illicit relations with daughter of accused Maroti by name
Pushpa. He also submitted that before six months of this incident
S.T.No. 4/2005/41/ StateVsMaroti+4
Sunil Jawalkar had given his bullockcart to accused Maroti and
accused Maroti had misappropriated the same.
28. During crossexamination of this witness many of the
omissions are brought on record. However we have to see the
omissions proved during crossexamination of investigation officer,
who recorded statement of this witness. P.S.I. Akaram Pawar had
recorded statement of this witness. From crossexamination of P.S.I.
Akaram Pawar it appears that Pralhad Shende had not stated before
him that Om Gadmade had asked Vinod to hold sword and assault
Neminath. He had not stated before him that Sunil Jawalkar and his
family members were pacifying accused Maroti and Vinod. He had
also not stated that he himself requested accused Maroti and Vinod not
to assault Sunil Jawalkar. He had not stated that Sushila Dhoot had
come out of the house. He had not stated that because of illicit
relations between Sunil Jawalkar and Pushpa there was dispute in
between Sunil Jawalkar and accused Maroti and Vinod. He had not
stated that as per say of Om Gadmade accused Vinod had given blow
by sword on the leg of Neminath. He had also not stated that
Parashram Gadmade and Purushottam Gadmade were present on the
spot. Hence I am of the opinion that only these omissions can be
considered in the case. I am of the opinion that out of these omissions
/42/
the only material omission is that accused Vinod assaulted Neminath
as per say of Om Gadmade.
29. From crossexamination of this witness it appears that he
specifically denied that the height of compound wall of his house is 7
to 8 ft. and from his house nothing is visible from courtyard of house
of Sunil Jawalkar. He has also specifically denied that there is no
window to the wall of house of Sunil Jawalkar. During cross
examination he admitted that he had no personal knowledge about
transaction of bullockcart that had taken place in between Sunil
Jawalkar and accused Maroti. He also admitted that at the time of
incident Shashikala Jawalkar, Vishwasrao Jawalkar and Archana
Jawalkar were present on the spot and they had better knowledge of
incident than him. From crossexamination of this witness it appears
that there is shed to the house of Sunil Jawalkar. Kitchen of his house
is in that shed. There is one room adjacent to this kitchen. To the
north of this kitchen there is courtyard of house of Sunil Jawalkar.
During crossexamination he specifically denied that Neminath fell
down on the pegs used for tying bullocks and received injury to his
leg. He submitted that he had gone to the house of Shriwallabha
Dhoot and returned back to the house within five minutes. He
submitted that as he was frightened he had not gone to the house of
Sunil Jawalkar and had seen towards his house from above wall of his
S.T.No. 4/2005/43/ StateVsMaroti+4
house. He specifically denied that because of tin shade nothing in the
courtyard of Sunil Jawalkar is visible from his house. From cross
examination of this witness it appears that there is door in between
kitchen and inner room of house of Sunil Jawalkar and the same was
broken. The broken door fell down in kitchen. During cross
examination he specifically admitted that he had no personal
knowledge about illicit relations in between Sunil Jawalkar and
Pushpa.
30. From crossexamination of this witness it appears that
Pramila Shivankar had given report against his wife in Police Station
and Tanubai the sister of accused Maroti had given evidence against
his wife in that case. However he specifically denied that since before
incident his relations with accused Maroti were not cordial. He
specifically denied that accused Maroti had instructed his family
members not to allow his wife to come to his house as character of his
wife was not proper. However he admitted during crossexamination
that there are two groups in village. One is of accused Maroti and
other is of Shriwallabha Dhoot. He specifically denied that he was
belonging to group of Shriwallabha Dhoot and was on cross terms
with accused Maroti. However he admitted that he had not seen who
had assaulted Chandrashekhar Bulbule. He also learnt about injuries
/44/
caused to other persons subsequently. From crossexamination of this
witness it appears that when he was going towards house of
Shriwallabha Dhoot accused Parashram Gadmade and Purushottam
Gadmade met him in the way. He submitted that however he does not
know where they had gone. He admitted that after incident that had
taken place in Pola festival he had not seen Om Gadmade till arrival of
police in village.
31. Prosecution had taken evidence of complainant Bhaskar
Baiskar as P.W.4 in the case. He had stated in his evidence that on the
date of incident at about 5.00 P.M. he was present in Pola festival
alongwith his bullocks. At that time Sunil Jawalkar was sitting on
Otta infront of house of Shamrao Gadmade. At that time accused
Vinod had come there and had assaulted Sunil Jawalkar by sword.
Hence on hearing shouts Neminath had gone there and he had given
kick blow to accused Vinod. Hence accused Vinod fell down on the
ground. The sword from his hand also fell down on the ground. At
that time accused Om Gadmade had given stick blow on the head of
Neminath. He had asked accused Vinod to hold his sword. Hence
accused Vinod lifted sword and assaulted Neminath on his head. At
that time accused Maroti had also come there. By that time Sunil
Jawalkar ran away from there to the house of Suresh Bharati. Both
accused Maroti and Vinod started running behind him. He submitted
S.T.No. 4/2005/45/ StateVsMaroti+4
that thereafter he had taken injured Neminath alongwith him and was
going to his house. He has submitted that while going to house he had
seen accused Maroti taking sword from his house. He submitted that
when he had gone to his house alongwith Neminath at that time Sunil
Dhoot had come to his house. However his mother had asked Sunil
Dhoot to go to house of Sunil Jawalkar as he received serious injuries.
Hence Sunil Dhoot had gone to the house of Sunil Jawalkar and he
also followed Sunil Dhoot. He submitted that accused Maroti and
Vinod were standing alongwith swords in the courtyard of house of
Sunil Jawalkar. Villagers were pacifying them. At that time accused
Parashram Gadmade and Purshottam Gadmade were also present
there. He submitted that he returned back to his house and had again
gone to the house of Sunil Jawalkar after 15 mintues. At that time
accused Parashram Gadmade and Purushottam Gadmade had asked
accused Maroti and Vinod to assault him. Hence accused Vinod had
given blow by sword on his stomach. However he caught hold the
same. However accused Maroti assaulted him by backside of sword
on his back. He submitted that hence he raw away from that place.
He submitted that accused Maroti and Vinod chased him upto the
house of Sitaram More. At that time their swords and clothes were
stained with blood. He submitted that he alongwith Manish hidden
/46/
himself in the house. He submitted that at that time accused Maroti
had come to his house and was asking his mother to send Neminath
out of house as he wanted to kill him. However his maternal aunt had
taken apology of accused Maroti and hence he returned back from his
house.
32. He had stated in his evidence that before six months of
this incident Sunil Jawalkar had given bullockcart to accused Maroti
and accused Maroti had sold the same and had not given amount to
Sunil Jawalkar. He also submitted that accused Maroti was suspecting
that there are illicit relations in between Sunil Jawalkar and his
daughter Pushpa. He had stated in his evidence that he had given oral
report of incident to A.P.I. Gotmare as per Exh.70 and on the basis of
the same offence was registered against accused No.1 to 3 as per
Exh.71.
33. From crossexamination of this witness it appears that
number of omissions were brought on record. However we have to
see which of the omissions were proved during crossexamination of
investigation officer, who had recorded statement of this witness.
A.P.I. Gotmare had recorded statement of this witness. From cross
examination of A.P.I. Gotmare it appears that Bhaskar Baiskar had not
stated before him that accused Vinod lifted sword as per say of Om
Gadmade. He had not stated that accused Maroti was also present in
S.T.No. 4/2005/47/ StateVsMaroti+4
Pola festival and tried to climb wall of house of Suresh Bharati from
the side of house of Doma Gadmade. He had not stated that he had
followed Sunil Dhoot to go to the house of Sunil Jawalkar. Hence I
am of the opinion that the only material omissions are that accused
Vinod lifted sword as per say of Om Gadmade and he had gone to the
house of Sunil Jawalkar behind Sunil Dhoot.
34. From crossexamination of this witness it appears that
Sunil Jawalkar has executed a sale receipt of one bullockcart and two
bullocks in favour of accused Maroti and this witness Bhaskar Baiskar
was attesting witness on those sale receipts. The same are produced
on record at Exh. 74 and 75. From crossexamination of this witness it
appears that accused Maroti had come in Pola festival when Vinod fell
down on the ground, however he was not having sword in his hand at
that time. From crossexamination of this witness it appears that when
he had gone to the house of Sunil Jawalkar for the first time at that
time 25 to 30 villagers were present there and they were pacifying
accused Maroti and Vinod. He halted there only for two minutes. At
that time accused Purushottam Gadmade and Parashram Gadmade
were also present. From crossexamination of this witness it appears
that his clothes were stained with blood. He was wearing the same at
the time of giving report. However police had not seized the same.
/48/
During crossexamination he specifically admitted that he has no
personal knowledge how all the persons died in that incident and how
other persons received injuries except injuries received by him and
Neminath. From crossexamination of this witness it appears that
there is distance of 50 ft. in between house of Suresh Bharati and
Shamrao Gadmade. As per evidence of this witness Sunil Jawalkar
and Neminath had received injuries infront of house of Shamrao
Gadmade. During crossexamination he admitted that he had given
report against accused No.1 to 3 only. He had not seen causing death
of persons in the house of Sunil Jawalkar. He submitted that
irrespective of that he had written in his report as per information
received from villagers. He specifically admitted that villagers
pacified accused Maroti and Vinod and hence he returned back to his
house. He does not know thereafter what happened at the house of
Sunil Jawalkar. He admitted that at the time of giving report he had
not stated that accused Purushottam Gadmade and Parashram
Gadmade were present on the spot and instigating accused Maroti and
Vinod to assault him. Hence from evidence of this witness it has
become clear that his evidence is mainly on the incident that had taken
place in Pola festival.
35. Prosecution had taken evidence of Neminath Baiskar as
P.W.5 in the case. He had also stated in his evidence that on the date
S.T.No. 4/2005/49/ StateVsMaroti+4
of incident at about 5 to 5.15 P.M. he was present in Pola festival. At
that time Sunil Jawalkar was sitting on Otta of Suresh Bharati.
Thereafter he had heard shouts and had seen that accused Vinod was
giving blow by sword to Sunil Jawalkar. Hence he had rushed there.
He submitted that accused Vinod had given blow by sword on the
hand of Sunil Jawalkar and because of which fingers of Sunil
Jawalkar had cut and fell down on the ground. He submitted that he
had given kick blow to accused Vinod and hence he fell down on the
ground. At that time accused Om Gadmade assaulted him by stick on
his head. Hence he fell down and received injury to his head. He
submitted that at that time accused Purushottam Gadmade and
Parashram Gadmade had asked accused Vinod to assault him. Hence
accused Vinod lifted his sword and assaulted him by that sword on his
right leg and the same was fractured. He submitted that at that time
accused Maroti had come there and had asked accused Vinod to kill
him first. He submitted that thereafter both accused Maroti and Vinod
rushed behind Sunil Jawalkar. He submitted that as he was injured he
was coming back to his house alongwith Bhaskar Baiskar and Manish
Dodke. He submitted that when they had come upto the house of
Sunil Jawalkar he had seen that accused Maroti and Vinod were
pushing door of house of Sunil Jawalkar by sword. He submitted that
/50/
thereafter he had gone to his house and concealed himself inside the
house. He submitted that after 20 to 25 minutes accused Maroti and
Vinod had come to his house and was asking to send him out of house
to kill him. However he submitted that his maternal aunt Dropadabai
had taken apology of accused Maroti and hence he returned back from
his house. He submitted that thereafter tractor of Shriwallabha Dhoot
had come there. All injured persons were present in that tractor. He
also entered in that tractor. He submitted that he was admitted in
District Hospital, Yavatmal for about six days. He identified stick by
which he was assaulted. He also submitted that his clothes were
seized by police and he identified his clothes.
36. From crossexamination of this witness it appears that he
had not stated before police that accused Maroti had asked accused
Vinod to kill him first. He had also not stated before police that when
he was going to his house Bhaskar Baiskar was also present with him.
From crossexamination of this witness it appears that incident in Pola
festival had taken place infront of house of Shamrao Gadmade. He
admitted that when accused Maroti and Vinod had come to his house
he had not seen them and he had only heard their voice. He
specifically denied that in Pola festival Parashram Jawalkar had come
to assault Vinod by sword. He specifically denied that however
scuffle of Sunil Jawalkar had taken place with accused Vinod and in
S.T.No. 4/2005/51/ StateVsMaroti+4
that scuffle sword of Parashram Jawalkar hit on the hand of Sunil
Jawalkar. During crossexamination he specifically admitted that
when he had gone to his house Bhaskar Baiskar was present there.
Since then he had not gone out of his house till arrival of tractor of
Shriwallabha Dhoot at his house. He also specifically admitted that
till he sat in the tractor of Shriwallabha, Bhaskar Baiskar was present
with him. From crossexamination of this witness it has become clear
that Bhaskar Baiskar had not gone to the house of Sunil Jawalkar and
hence it does not appear probable that Bhaskar Baiskar was assaulted
there by accused Maroti by back side of his sword on his back. In this
respect there is no medical evidence on record. From evidence of this
witness it appears that he has given contradictory evidence that
accused Parashram Gadmade and Purushottam Gadmade were also
present in Pola festival and had asked accused Vinod to assault him.
37.. Prosecution had also taken evidence of Manish Dodke as
P.W.7 in the case. He had also stated in his evidence that on the date
of incident at about 5.00 to 5.15 P.M. he was present in Pola festival.
At that time Neminath was present with him. He submitted that when
he had seen towards house of Suresh Bharati he had seen that hand of
Sunil Jawalkar was raised and the same was bleeding. He submitted
that Neminath had given kick blow to accused Vinod. Hence sword
/52/
from the house of accused Vinod fell down on the ground. At that
time accused Om Gadmade had given stick blow on the head of
Neminath. He submitted that hence he alongwith Parashram Jawalkar
had gone to Neminath. However accused Om Gadmade assaulted him
and Prashram Jawalkar by stick. He submitted that accused Vinod had
lifted his sword and had assaulted Neminath by that sword on his leg.
He submitted that by that time accused Maroti had come there and
thereafter both accused Maroti and Vinod rushed behind Sunil
Jawalkar towards the house of Suresh Jawalkar. He submitted that
thereafter he had taken Neminath to his house. He submitted that he
alongwith Neminath had gone inside the house and chained door of his
house. He submitted that after some time he heard shouts of accused
Vinod as he was calling Neminath to come out of house. He
submitted that however ladies present outside the house had pacified
accused Vinod and hence he returned back from there. He submitted
that thereafter tractor of Shriwallabha Dhoot had come there. He had
kept Neminath in that tractor.
38. From crossexamination of this witness it appears that he
had not stated before police that when he had seen towards house of
Suresh Bharati hand of Sunil Jawalkar was raised and it was bleeding.
He had also not stated before police that he had gone to Neminath
alongwith Parashram Jawalkar. He had not stated before police that
S.T.No. 4/2005/53/ StateVsMaroti+4
accused Vinod had assaulted Neminth by sword on his leg. He had
not stated before police that accused Maroti and Vinod were
wondering in the village alongwith swords. He had also not stated
before police that ladies present infront of his house had pacified
accused Vinod.
39. During crossexamination he admitted that accused Vinod
had assaulted Neminath infront of house of Shamrao Gadmade.
During crossexamination he admitted that when he was present inside
the house of Neminath he had not seen who had come to his house.
He submitted that only on hearing voice he is saying that accused
Vinod had come to house of Neminath.
40.. Prosecution had taken evidence of Chabutai Shende as
P.W.6 in the case. She had stated in her evidence that on the date of
incident at about 5.00 P.M. Lochana Jawalkar had given call to her
saying that fingers of hand of father of Amol had cut. Hence she had
gone to the house of Lochana. She had seen that fingers of left hand
of Sunil had cut and he had received bleeding injury to his left hand.
By that time Lochana Jawalkar had gone for bringing Detol. She
submitted that Sunil Jawalkar told her that accused Vinod had
assaulted him by sword in Pola festival. She submitted that by that
time both accused Maroti and Vinod had come to the house of Sunil
/54/
Jawalkar alongwith swords in their hands. Parashram Jawalkar was
pacifying them. However accused Vinod had assaulted Parashram on
his hand by sword. Thereafter Parashram had come inside the house.
She had wrapped cloth on injured hand of Parashram. Thereafter
Sunil Dhoot had come there and shouted to open door of the house of
Sunil Jawalkar. Hence his wife Sushila Dhoot opened door of the
house and had taken Sunil Dhoot inside the house. She submitted that
she had seen bleeding injury on the neck of Sunil Dhoot and he had
pressed his hand on that injury. She submitted that Sunil Dhoot told
them that accused Vinod assaulted him by sword on his neck. She
submitted that thereafter they closed door of the house. She submitted
that after about five minutes both accused Vinod and Maroti started
breaking door of house of Sunil Jawalkar. Hence Sunil Jawalkar and
Lochana had pressed door of the house from inside. Sunil Jawalkar
was also asking accused Maroti and Vinod not to assault him as he has
small children and his wife remains ill. However accused Vinod
threatened Sunil Jawalkar to come out of the house as he wanted to
kill him. She submitted that thereafter accused Maroti and Vinod
broke open the door of house of Sunil Jawalkar. Hence Sunil Jawalkar
and Lochana fell down on the broken panels of door of their house.
She submitted that thereafter accused Maroti assaulted Sunil Jawalkar
by sword on his neck and accused Vinod had assaulted Sunil Jawalkar
S.T.No. 4/2005/55/ StateVsMaroti+4
by sword on his legs. She submitted that Lochana had also received
injury on her face and hence she had pulled her on one side. She
submitted that at that time accused Maroti threatened her to go from
there. She submitted that at that time Parashram Jawalkar had hidden
himself in the house below the cot. She submitted that thereafter she
had gone to her house and had seen towards house of Sunil Jawalkar
from window of her house. She submitted that at that time she had
seen accused Maroti and Vinod in the courtyard of house of Sunil
Jawalkar. Their clothes and swords were stained with blood. She
submitted that there was remour in village that accused Maroti had
sold bullockcart of Sunil Jawalkar and Sunil Jawalkar had illicit
relations with daughter of accused Maroti.
41.. From crossexamination of this witness it appears that her
statement was recorded by Magistrate under section 164 of Cr.P.C.
From crossexamination of this witness it appears that number of
omissions are brought on record from statement given by her before
Magistrate. However I am of the opinion that the material omissions
can be taken into consideration. From crossexamination of this
witness it appears that she had not stated before Magistrate that Sunil
Jawalkar told her that accused Vinod assaulted him by sword in Pola
festival. She had not stated before Magistrate that accused Maroti and
/56/
Vinod had come to the house of Sunil Jawalkar alongwith swords in
their hands. She had also not stated that she had taken Parashram
Jawalkar inside the house and closed door of the house. She had also
not stated that Sunil Dhoot had asked Sunil Jawalkar to open door of
the house and Sushilabai Dhoot had taken him inside the house by
opening door of the house. She had also not stated before Magistrate
that accused Vinod had threatened Sunil Jawalkar to come out of the
house. She had not stated that Lochana and Sunil Jawalkar fell down
on broken panels of door of house. She had also not stated that
accused Maroti assaulted Sunil Jawalkar on his neck and accused
Vinod assaulted him by sword on his legs. She had also not stated that
when accused Maroti and Vinod had come out of house of Sunil
Jawalkar their clothes were stained with blood. She had also not
stated that she learnt that accused Maroti had sold bullockcart of
Sunil Jawalkar and Sunil Jawalkar had illicit relations with daughter of
accused Maroti.
42. From crossexamination of this witness it appears that her
statement was also recorded by police. During crossexamination of
this witness number of omissions are brought on record from her
police statement. Her statement was recorded by A.P.I. Gotmare.
Hence we have to consider omissions proved during cross
examination of A.P.I.Gotmare. From crossexamination of A.P.I.
S.T.No. 4/2005/57/ StateVsMaroti+4
Gotmare it appears that Chabutai had not stated before him that when
Parashram Jawalkar was pacifying accused Maroti and Vinod at that
time accused Vinod assaulted him on his hand. She had also not
stated before him that Sunil Dhoot had given call to Sunil Jawalkar to
open door of the house. She had also not stated that after taking Sunil
Dhoot inside the house the door of house was closed. She had also not
stated that as Lochana had received injury on her face, she had pulled
her on one side. She had also not stated that she had seen through
window of her house and had seen accused Maroti and Vinod in the
courtyard of house of Sunil Jawalkar and their clothes were stained
with blood.
43. From crossexamination of this witness it appears that
statement of this witness was recorded immediately after incident on
1792004. However her statement under section 164 of Cr.P.C. was
recorded on 14122004. From crossexamination of this witness it
appears that when she had gone to the house of Sunil Jawalkar at that
time Sushilabai Dhoot, Laxmibai Jambhekar and Sunita Warathi were
already present at the house of Sunil Jawalkar. However Laxmibai
Jambhekar and Sunita Warthi had left house of Sunil Jawalkar prior to
her. During crossexamination she admitted that she had cordial
relations with Sunil Jawalkar. However she denied that accused
/58/
Maroti had instructed her family members and his sister Tanubai not
to allow her to come to their house. She specifically denied that she
had illicit relations with Sunil Jawalkar and in that respect accused
Maroti alongwith Bhaurao Narnaware and Keshaorao Shrirame had
taken meeting in the village and had scolded her in that respect. She
admitted that Pramila Shivankar had given report against her in Police
Station. However she denied that Tanubai sister of accused Maroti
had given statement against her to police. During crossexamination
she specifically admitted that as door of the house was closed after
Parashram had entered the house she does not know thereafter what
happened in courtyard of house of Sunil Jawalkar.
44. Prosecution had taken evidence of Lochana Jawalkar as
P.W.8 in the case. She had stated in her evidence that on the date of
incident at about 5.00 P.M. she was present at her house. At that time
Parashram Jawalkar had come to the house running and Sunil
Jawalkar followed him. She had seen bleeding injury to the left hand
of Sunil Jawalkar and hence she had taken him inside the house. She
had seen that two fingers of Sunil were cut and others were injured.
Hence she had given call to Chabutai Shende and accordingly she had
come to her house. By that time Sushila Dhoot and Sunita Warathi
had also come to her house. She submitted that they were applying
towel on the hand of Sunil Jawalkar. Sunil Jawalkar told them that
S.T.No. 4/2005/59/ StateVsMaroti+4
accused Vinod assaulted him by sword in Pola festival. She
submitted that thereafter she had gone to the house of her mother for
brining Detol. She submitted that when she was returning back
accused Maroti and Vinod were present in the courtyard of her her
house and accused Maroti had given abuses to her and had given kick
blow to her. She submitted that thereafter she had gone inside the
house and closed door of the house. She also submitted that as
Parashram Jawalkar was injured he was also taken inside the house.
She also submitted that thereafter she heard voice of Sunil Dhoot and
hence had opened door of the house. At that time she had seen
bleeding injury on the neck of Sunil Dhoot and he had pressed his
hand on his neck. She had also taken Sunil Dhoot inside the house.
She submitted that at that time accused Parashram Gadmade was also
present in the courtyard of her house and accused Purushottam
Gadmade and Om Gadmade were also present near well infront of her
house. She submitted that Sunil Dhoot told them that accused Vinod
assaulted him by sword on his neck. She submitted that thereafter she
had heard noise of breaking open door of her house. Hence she
alongwith Sunil Jawalkar pressed door of the house from inside. She
submitted that however the door of her house was broken and hence
she alongwith Sunil Jawalkar fell down on broken panels of door of
/60/
her house in kitchen room of her house. She submitted that thereafter
both accused Maroti and Vinod stated assaulted Sunil Jawalkar by
swords. She submitted that accused Maroti assaulted her by sword on
her face and hence Chabutai Shende had pulled her to one side. She
submitted that at that time Parashram Jawalkar had hidden himself
below the cot. However accused Maroti and Vinod pulled Parashram
from below the cot and assaulted him by swords. She submitted that
she had seen the same as she was sitting near Sunil Jawalkar in kitchen
room of her house. She submitted that accused Vinod had also given
abuses to her and had asked accused Vinod if should be killed. She
also submitted that accused Maroti had asked if Sunil Dhoot died. She
submitted that thereafter she had become unconscious. She regained
consciousness in District Hospital, Yavatmal. She was admitted there
for about five days. Thereafter she was referred to Medical Hospital,
Nagpur. She submitted that after discharge from hospital she had
gone to the house of her uncle at Waghapur. Police had seized her
clothes. She had identified the same. She submitted that as her teeth
were stitched she was not in a position to speak and hence her
statement was recorded late by police. She had also identified swords
seized in the case.
45. From crossexamination of this witness it appears that
number of omissions are brought on record. However we have to
S.T.No. 4/2005/61/ StateVsMaroti+4
consider the proved omissions and omissions which are material in
nature. Her statement was recorded by Dy. S.P.Pawar. From cross
examination of Dy.S.P. Pawar it appears that Lochana had not stated
to him the place of Badam tree where accused Maroti and Vinod were
present in the courtyard of her house. She had also not stated that she
had closed door of the house after going inside the house. She had
also not stated that wife of accused Maroti had come to the house of
Sunil Jawalkar. She had also not stated that she fell down alongwith
Sunil Jawalkar on broken panels of door of her house. She had also
not stated that she was sitting near Sunil Jawalkar and at that time she
was assaulted. She had also not stated that as her teeth were stitched
she was not in a position to talk.
46. During crossexamination she admitted that she had not
personally seen how Parashram Jawalkar and Sunil Dhoot had
received injuries. She also admitted that she was not knowing where
Shashikalabai, Vishwasrao and Archana were present. She had not
seen them till she had become unconscious. However she admitted
that Sushila Dhoot and Chabutai Shende were present inside her house
and had seen complete incident. She also admitted that at the time of
incident she had seen swords in the hands of accused Maroti and
Vinod from a distance of 3 to 4 hands. She specifically denied that
/62/
both the swords are of her house and hence she had identified the
same. She specifically denied that at the time of incident both Sunil
Jawalkar and Parashram Jawalkar were under influence of liquor and
they received injuries from each other as they were moving swords
under influence of liquor. She also specifically denied that Sunil
Dhoot and Chandrashekhar Bulbule were also under influence of
liquor and had received injuries from swords of Sunil Jawalkar and
Parashram Jawalkar. She also specifically denied that as she had gone
there to control Sunil Jawalkar she had received injury from the sword
of Sunil Jawalkar. She specifically denied that she had subsequently
given a false statement to police. However during crossexamination
she admitted that as she was inside the house and door of the house
was closed she had not seen what happened outside that room. She
had also not stated at that time who were present near well infront of
her house. During crossexamination she admitted that accused No.3
to 5 had no enmity with Sunil Jawalkar and they had cordial relations
with him. She also admitted that accused No.3 to 5 had also cordial
relations with Sunil Dhoot and Chandrashekhar Bulbule.
47. Prosecution had taken evidence of Deu Shelke as P.W.9
in the case. He had stated in his evidence that on the date of incident
at 5.00 P.M. he was present in Pola festival. He had seen Neminath
laming. Bhaskar Baiskar and Manish Dodke were present with him.
S.T.No. 4/2005/63/ StateVsMaroti+4
He submitted that he had seen accused Vinod chasing Sunil alongwith
sword in his hand. Accused Maroti was also going behind them. He
submitted that accused Maroti and Vinod had come to their house and
accused Maroti had taken sword from his house and both of them had
come to the house of Sunil Jawalkar. He submitted that he had also
gone there. He submitted that Parashram Jawalkar was pacifying
accused Maroti and Vinod. He had also caught hold sword in the hand
of accused Maroti. Sunil Jawalkar was also saying from inside the
house not to assault him and he will leave the village. He submitted
that Pralhad Shende and Sitaram More were also pacifying accused
Maroti and Vinod. He submitted that accused Vinod had assaulted
Parashram on his hand and hence Prashram Jawalkar had gone inside
the house of Sunil Jawalkar. He submitted that thereafter he had gone
towards door of courtyard of house of Sunil Jawalkar. At that time
Parashram Gadmade, Purushottam Gadmade and Om Gadmade met
him. He had requested them to separate the quarrel. However accused
Parashram had asked Vinod and Maroti to kill Sunil Jawalkar and
others. He submitted that thereafter he had come in Baiskar square.
After some time he had seen accused Maroti and Vinod in Baiskar
square. Their clothes and swords were stained with blood. At that
time Bhaskar Baiskar was also present there. At that time accused
/64/
Vinod was intending to give blow by sword on the stomach of
Bhaskar Baiskar. However he saved himself. However accused
Maroti assaulted Bhaskar by sword on his back by backside of his
sword. He had also stated in his evidence that accused Maroti and
Vinod had gone to the house of Neminath to kill him. They had called
Neminath out of the house. However Dropadabai and mother of
Neminath had requested accused Maroti not to kill Neminath and
hence he returned back from there. He had also stated in his evidence
that accused Maroti was suspecting that Sunil had illicit relations
with Pushpabai and on that count this quarrel had taken place.
48. From crossexamination of this witness it appears that
number of omissions are brought on record during crossexamination
of this witness. However we have to see the omissions proved in the
case and the omissions which are material in nature. It appears that
statement of this witness was recorded by Dy.S.P. Pawar. From cross
examination of Dy.S.P. Pawar it appears tht Deu Shelke had not stated
before him that accused Vinod was chasing Sunil Jawalkar and
accused Maroti followed him. He had also not stated that in the
courtyard of house of Sunil Jawalkar Parashram Jawalkar was
requesting accused Maroti not to assault Sunil Jawalkar. He had also
not stated that Sunil Jawalkar was requesting accused Maroti not to
assault him and he will leave the village. He had also not stated that
S.T.No. 4/2005/65/ StateVsMaroti+4
Sitaram More and Pralhad Shende were also requesting accused
Maroti not to assault Sunil Jawalkar. He had also not stated that
accused Vinod assaulted Parashram by sword on his hand. He had also
not stated that both accused Maroti and Vinod were insisting
Neminath to come out of the house. He had also not stated that as
Sunil Jawalkar had illicit relations with Pushpa accused Maroti and
Vinod had assaulted him.
49. From crossexamination of this witness it has become
clear that he was not knowing what had happened in Pola festival. He
had no talk with Neminath and Sunil Jawalkar. He had also no talk
with Manish Dodke and Bhaskar Baiskar. From crossexamination of
this witness it appears that he halted in courtyard of house of Sunil
Jawalkar only for 5 to 10 minutes and thereafter he had not come there
again on that day. He also admitted that he had not seen any injury on
the back of Bhaskar Baiskar. During crossexamination he
specifically admitted that when accused Maroti was Sarpanch of
village no confidence motion was taken against him and the same was
passed against him. He also admitted that he acted against accused
Maroti in passing no confidence motion against him. However he
specifically denied that he had acted against accused Maroti as he was
intending to become Sarpanch of village. He also specifically denied
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that on that count he was on cross terms with accused Maroti. During
crossexamination he specifically admitted he does not know who
killed whom. He also admitted that from door of courtyard of house
of Sunil Jawalkar nothing is visible inside the house of Sunil Jawalkar.
He also admitted that he had not seen Parashram Jawalkar in the
courtyard of house of Sunil Jawalkar. He met him near door of
courtyard of house of Sunil Jawalkar and from there Parashram
Jawalkar had gone to his house and by that time quarrel had come to
an end. He also admitted that after this incident both accused
Parashram Gadmade and Purushottam Gadmade were present in
village till they were arrested on 4122004. He also admitted that
during that time there was remour in village that if accused Parashram
had intervened the quarrel four persons could have been saved. He
also admitted that hence he had decided that accused Parashram must
be punished for his act.
50. Prosecution had taken evidence of injured Vishwasrao
Jawalkar as P.W.10 in the case. He had stated in his evidence that on
the date of incident at about 5.00 P.M. he heard shouts of people.
Hence he started returning back to his house. At that time daughter of
Parashram Jawalkar by name Tejaswini was with him. He submitted
that as bullocks were returning back to the house he required time for
reaching to his house. He submitted that he left Tejaswini and had
S.T.No. 4/2005/67/ StateVsMaroti+4
gone to his flour mill for urinal. He required some time for urinal and
thereafter he had come to his house. He submitted that he had seen
Parashram Gadmade standing in the courtyard of his house. He had
also seen his wife Shashikalabai standing in the courtyard of his
house. He had seen bleeding injury on her left hand. He submitted
that thereafter accused Maroti and Vinod had come out of his house
alongwith swords in their hands. Their clothes and swords were
stained with blood. He submitted that accused Maroti had assaulted
his wife Shashikalabai by wooden plank. However he had caught hold
her and hence he received injury by wooden plank on his leg. He
submitted that accused Maroti had thrown wooden plank on the roof
of his house. He submitted that at that time Parashram Gadmade was
insisting that all persons from his family and from his group should
be killed. He also submitted that at that time Om Gadmade and
Purushottam Gadmade were standing near the gate of courtyard of his
house. He submitted that thereafter there was fainting to him and he
regained consciousness when he was taken to hospital in tractor. He
submitted that before four to five months of this incident he had given
his bullockcart to accused Maroti and he had sold the same. He also
submitted that the amount of Rs.2500/ of grocery articles was also
outstanding against accused Maroti. He submitted that on this count
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this quarrel had taken place. He submitted that police had seized his
clothes. He had also identified the same.
51. From crossexamination of this witness it appears that
number of omissions are brought on record during crossexamination
of this witness. However we have to consider the omissions proved in
the case and the omissions which are material in nature. It appears
that statement of this witness was recorded by P.S.I. Ramesh Kulkarni.
From crossexamination of P.S.I. Kulkarni it appears that Vishwasrao
had not stated to him that because of bullocks he had become late in
returning back to his house. He had also not stated that Shashikalabai
was standing in the courtyard of his house and at that time accused
Maroti and Vinod had come out of his house. He had also not stated
that accused Purushottam Gadmade and Om Gadmade were standing
near door of courtyard of house of Sunil Jawalkar and they followed
accused Maroti and Vinod when they returned back from the house of
Sunil Jawalkar. He had not stated that he had seen accused Maroti and
Vinod going to the house of Neminath and returning back from there.
He had not stated that he had become unconscious and regained
consciousness when he was taken to hospital in tractor.
52. From crossexamination of this witness it has become
clear that he was not knowing what had happened in Pola festival.
During crossexamination he admitted that Sunil Jawalkar was looking
S.T.No. 4/2005/69/ StateVsMaroti+4
after financial affairs of the house. The pair of bullocks and bullock
cart was given by Sunil Jawalkar to accused Maroti. He submitted
that he had no knowledge in respect of bullocks and bullockcart what
agreement had taken place in between them. However he specifically
denied that Sunil Jawalkar had sold bullocks and bullockcart to
accused Maroti. During crossexamination he admitted that he had not
seen Sunil Jawalkar, Parashram Jawalkar, Sunil Dhoot and
Chandrashekhar Bulbule in the courtyard of his house. He also
admitted that he had not seen four dead bodies lying in his house. He
also admitted that in his presence no one was killed in the courtyard of
his house. Shashikalabai had also not told anything to him about
causing of death of any person at his house. He admitted that nothing
is visible of inside of his house from courtyard of his house and his
flour mill.
53. Prosecution had taken evidence of Vitthal Sahare as
P.W.11 in the case. He had stated in his evidence that on the date of
incident at about 5.00 to to 5.15 P.M. he had returned back from Pola
festival and was sitting on cot in varandha of his house alongwith
Prabhakar Inawate. He submitted that at that time accused Maroti and
Vinod had come to him alongwith swords in their hands. He submitted
that swords of accused Maroti and Vinod were stained with blood.
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Accused Maroti threatened him to killed him and told him that he had
already four persons and now wanted to kill him. Accused Maroti had
also threatened him that if he goes to lift dead bodies he will kill him
there itself. He submitted that he closed the door of the house and
remain inside the house. He submitted that quarrel had taken place as
accused Maroti had sold bullocks and bullockcart of Sunil Jawalkar.
54.. From crossexamination it appears that he had not stated
before police that accused Maroti and Vinod had come in the
courtyard of his house. He had also not stated that accused Maroti had
sold bullockcart of Sunil Jawalkar. From crossexamination of this
witness it appears that in village Mozar Pola festival is organized at
two places. One festival is arranged by Shriwallabha Dhoot. This
Pola festival of Shriwallabha Dhoot is arranged since when this
witness was Sarpanch of village. He admitted that he was taking his
bullocks in Pola festival of Shriwallabha Dhoot . During cross
examination he admitted that in respect of threats given to him he had
not given report to police. He had also not told about the same to
other villagers. From crossexamination of this witness it appears that
police had recorded statement of this witness after about three weeks
of this incident. He specifically denied that since the year 1995 he is
on enimical terms with accused Maroti..
55.. To prove the offence against accused persons prosecution
S.T.No. 4/2005/71/ StateVsMaroti+4
had also relied on other facts proved in the case. It is the case of
prosecution that the investigation officer A.P.I. Gotmare had prepared
panchanama of spot in presence of panch witnesses. P.W.2 Vinayak
Ban and P.W.3 Pralhad Shende are panch witnesses on this spot
panchanama. The same is produced on record at Exh.65. Both these
panch witnesses have stated about the same in their evidence. On
perusal of spot panchanama it has become clear that the initial assault
had taken place on the Otta of Suresh Bharati. A.P.I. Gotmare had
seen blood stains on Otta of Suresh Bharati. He had also seen cut
fingers lying near the steps of Otta. He had taken photographs of that
place through Kawadusing Ade. He had seized blood stains and cut
finger from spot. On perusal of spot panchanama it appears that
another incident had taken place at the house of Sunil Jawalkar. A.P.I.
Gotmare had seen blood stains in courtyard of house of Sunil
Jawalkar. On perusal of spot panchanama it has become clear that
house of Sunil Jawalkar and Parashram Jawalkar is situated in same
courtyard and same is facing to north. In the house of Sunil Jawalkar
there is a shed. The kitechen of Sunil Jawalkar is situated in that shed.
To the south of this kitchen there is room of house of Sunil Jawalkar.
On eastern side of this room there is another room of house. There is
a door to the room adjacent to kitchen of house. On perusal of spot
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panchanama it appears that this door of house was broken and blood
was found in kitchen and on broken panel of door. Blood was also
lying in inner room of house. Near broken door cut fingers were
lying. A.P.I. Gotmare had seized the same alongwith blood stained
soil. He had also seized broken pieces of bangles, hair lying in
kitchen. He had seen broken clamp of sword lying in inner room of
house. He had also seized simple soil and blood stained soil from that
room and had also seized blood stained shirt, clamp of sword from
that room. It appears that on eastern side of this house there is open
place. On northern side there is open courtyard. Beyond that
courtyard there is shop of Sunil Jawalkar. On eastern side of this shop
there is room of Parashram and in between this shop and room of
Parashram Jawalkar there is approach way for coming to house of
Sunil Jawalkar. To the north of this house there is eastwest road of
village. There is a well in between this road and courtyard of house of
Sunil Jawalkar. The house of Vinayak Ban is on other side of road.
The house of Deu Shelk is on southern side of this house. The house
of Chandrashekhar Bulbule is on eastern side of this house. House of
Pralhad Shende is on western side of this house. A.P.I. Gotmare had
taken photographs of this spot through Kawadusing. He had seized all
the photographs alongwith negatives from Kawadusing and has filed
the same on record alongwith chargesheet. A.P.I. Gotmare had also
S.T.No. 4/2005/73/ StateVsMaroti+4
got map of spot prepared from Tukaram Ramteke. Prosecution has
proved the same by taking evidence of Tukaram Ramteke as P.W.15 in
the case.The map is produced on record at Exh.107. All these facts are
also appearing in that map. However on perusal of spot panchanama
and map it is not not appearing that there is any mention about the
situation of house of Pralhad Shende which is on western side of
house of Sunil Jawalkar. It is the case of prosecution that Pralhad
Shende and his wife Chabutai Shende had seen part of the incident
from above wall of their house and through window of house of Sunil
Jawalkar. Although in that respect there is nothing mentioned in spot
panchanama and map, in that respect evidence has brought on record
during crossexamination of witnesses examined in the case. Hence I
am of the opinion that spot panchanama prepared by A.P.I. Gotmare
and map prepared by Tukaram Ramteke can be taken into
consideration.
56.. It is the case of prosecution that on 1592004 accused
Maroti and Vinod surrendered before A.P.I. Gotmare and A.P.I.
Gotmare had seized their swords and clothes in presence of panch
witnesses. For that purpose prosecution had taken evidence of Pradip
Meshram as P.W.12 in the case. He had stated about the same in his
evidence. However from crossexamination of this witness it appears
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that he alongwith other panch Sanikhan was working as Press
Reporter and had gone to Mozar for collecting information. At that
time many villagers were present in that Police Chauki. However
police had called these two witnesses as panch witnesses. From cross
examination of this witness it appears that when he had gone to police
chauki at Mozar he had seen both the swords kept on one table in that
police chauki. At that time both accused Maroti and Vinod were
present in another room of that police chauki. He submitted that police
had told him that both the swords were seized from accused Maroti
and Vinod. He admitted that clothes of accused Maroti and Vinod
were also kept on that table. He admitted that police had told him that
they had seized the same from accused Maroti and Vinod. During
crossexamination he fairly admitted that swords were not seized in
his presence. Hence from crossexamination of this witness it has
become clear that swords and clothes of accused Maroti and Vinod
were not seized in presence of this witness. However in this respect
there is evidence of A.P.I.Gotmare on record. Moreover witnesses
have already identified swords in their evidence.
57.. It is the case of prosecution that when accused Maroti and
Om Gadmade were in police custody accused Maroti had given
memorandum statement in presence of panch witnesses to discover
crowbar from his house and to discover groundnut, Gud and other
S.T.No. 4/2005/75/ StateVsMaroti+4
articles from the field of Ramlal. Accordingly accused Maroti had
discovered those articles in presence of panch witnesses. It is also the
case of prosecution that Om Gadmade had given memorandum
statement in presence of panch witnesses to discover stick from his
house and he had accordingly discovered the same. For that purpose
prosecution had taken evidence of Kawadusing Ade in the case. He
had stated about the same in his evidence. However from evidence of
this witness it appears that he had not gone in the house of Om
Gadmade and police had brought stick from the house of Om
Gadmade and hence he does not know from where police had brought
that stick. During crossexamination he admitted that all the
panchanams were signed by him before 12.00 noon. However it
appears that the time written on different panchanams are not tallying
as per evidence of Kawadusing. However I am of the opinion that
crowbar seized in the case is not identified by any witness and the
same was also not sent to C.A. Nagpur. The other articles seized at
the instance of accused Maroti have no relevance in respect of proving
offences against accused persons. However in respect of seizure of
stick from the house of Om Gadmade at his instance there is evidence
of investigation officer A.P.I. Gotmare on record.
58.. It is the case of prosecution that investigation officer had
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seized cloth of injured in presence of panch witnesses. For that
purpose prosecution had taken evidence of Kawadusing Ade in the
case. In presence of this witness cloth of Neminath, Shashikalabai and
Lochana Jawalkar were seized. Out of them prosecution had taken
evidence of Neminath and Lochana in the case and they have
identified their cloth.
59. From evidence of A.P.I. Gotmare it has become clear that
he had sent accused No.1 to 3 for medical examination and for
collection of their blood samples. He had seized their blood samples.
He had also given letters for collecting blood samples of injured
persons and for determining their blood groups. He had seized their
blood samples. From evidence of P.W.1 Bharat Aswar it appears that
investigation officer had seized cloth of deceased and their viscera
bottles. It appears that all these seized articles were sent to C.A.
Nagpur and the reports of C.A.Nagpur of seized articles and viscera of
deceased are filed on record. The learned Advocates appearing for
accused persons submitted that Kawadusing admitted during cross
examination that all seized articles were kept in one corner of Police
Station and they were not sealed and were sent late to C.A.Nagpur.
Hence they submitted that possibility of tampering of these articles
cannot be ruled out. On perusal of case papers it appears that both the
swords were sent to Medical Officer for verification. On perusal of
S.T.No. 4/2005/77/ StateVsMaroti+4
evidence of Dr. Kolape it appears that he had received both the swords
in sealed condition. After verification of swords he had sent the same
to Police Station in sealed condition. In that respect there is evidence
of Dr. Ajit Malani also on record. On perusal of C.A.Reports it
appears that blood of group “O” was found on sword and clothes of
accused Maroti and blood of group “B” was found on cloth and sword
of accused Vinod. On perusal of C.A.Reports it appears that deceased
Sunil Jawalkar, Chandrashekhar Bulbule were having blood group of
“B” and deceased Sunil Dhoot had blood of group “O”. Injured
Shashikalabai and Vishwasrao had blood of group “B” and Lochana
had blood of group “A” and Neminath had blood of group “AB”. I am
of the opinion that as there was assault to different persons by the
same swords the blood of all the persons cannot be found on the
swords. Under such circumstances, we have to mainly rely on the
evidence of witnesses who had seen the incident.
60.. The learned Advocates appearing for accused persons had
taken objection on the ground that the articles were not separately
seized under a separate seizure memo. Moreover the cut fingers were
not preserved. I am of the opinion that merely separate seizure memos
were not prepared the contention of prosecution cannot be disbelieved
that those articles were not present on the spot and they were not
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seized at the time of spot panchanama. It appears that cut fingers
might have not been preserved as they are perishable. From evidence
of witnesses it appears that house of Shamrao Gadmade is adjacent to
the house of Suresh Bharti. Infront of house of Suresh Bharati there is
open land and Pola festival is organized in that land. There is Maroti
temple on northern side of this open land. The learned Advocates
appearing for accused persons had mainly taken objection on the
evidence of Bharat Aswar on the ground that he is habitual witness of
police and he was supplying food to arrested accused persons in Police
Station. However evidence of this witness is corroborated by other
evidence brought on record and the learned Advocates appearing for
accused persons have also relied on the C.A.Report of viscera of
deceased persons. Under such circumstances evidence of this witness
can be considered in the case.
61.. It is the case of prosecution that at the time of incident
some persons were injured and they had received serious injuries
which were sufficient to cause their death. It is the case of prosecution
that in that incident Neminath Baiskar, Shashikalabai Jawalkar,
Vishwas Jawalkar, Lochana Jawalkar, Sushila Dhoot and Dilip
Jawalkar were injured. However out of these injured persons
prosecution had taken evidence of Neminath Baiskar, Lochana
Jawalkar and Vishwasrao Jawalkar in the case. Rests of the injured
S.T.No. 4/2005/79/ StateVsMaroti+4
persons were not examined by prosecution in the case. Hence injuries
received by them have not come on record. It is the case of
prosecution that all injured witnesses were admitted in District
Hospital, Yavatmal. Medical Officer examined them and issued
medical certificates. In that respect prosecution had taken evidence of
Dr. Sunil Pardeshi as P.W. 18 in the case. However from evidence of
this witness it appears that he medically examined Shashikalabai
Jawalkar and Sushilabai Dhoot and issued certificates as per Exh.146
and 147. I am of the opinion that in absence of evidence of
Shashikalabai Jawalkar and Sushilabai Dhoot merely on these
medical certificates injuries received by them cannot be considered.
From evidence of Dr. Sunil Jawalkar it appears that he identified
signatures of Dr. Vijay Akolkar on medical certificate of Neminath
and that of Vishwas Jawalkar, which are at Exh.148 and 149.
However from evidence of this witness it has become clear that he has
not medically examined Neminath and Vishwas Jawalkar. Under such
circumstances I am of the opinion that merely he had identified
signature of Dr. Vijay Akolkar on medical certificates of Neminath
and Vishwas Jawalkar, the same cannot be read in evidence and
injuries mentioned in those certificates cannot be considered in the
case. On perusal of record it appears that Lochana Jawalkar was also
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medically examined by Dr. Vijay Akolkar and further she was referred
to Medical Hospital, Nagpur. In absence of evidence of Dr. Vijay
Akolkar, injuries received by Neminath, Vishwas Jawalkar and
Lochana Jawalkar remained to be proved in the case. However I am
of the opinion that in respect of injuries received by these injured
witnesses evidence given by these injured witnesses only will have to
be considered.
62. The learned Advocates appearing for accused persons
contested case mainly on the ground that evidence of witnesses mainly
examined in the case cannot be considered against accused persons as
their evidence is full of omissions. It is their contention that if
omissions brought on record are considered then their remains nothing
in their evidence. However the contention of learned Advocates
appearing for accused persons in this respect cannot be accepted. It is
true that during crossexamination of all material witnesses they have
brought number of omissions on record. However I am of the opinion
that the omissions which are proved during crossexamination of
investigation officer who recorded statements of those witnesses and
out of those omissions the omissions which are material in nature only
can be taken into consideration.
63. It is the contention of learned Advocates appearing for
accused persons that evidence of these material witnesses cannot be
S.T.No. 4/2005/81/ StateVsMaroti+4
accepted against accused persons as they are related to deceased and
injured persons. It is true that complainant Bhaskar Baiskar, his
brother Neminath Baiskar are brotherinlaws of deceased Sunil
Jawalkar and Lochana Jawalkar is widow of Sunil Jawalkar and
Vishwasrao Jawalkar is father of Sunil Jawalkar. However rest of the
witnesses are not related to Sunil Jawalkar. Rest of the witnesses
including Vinayak Ban, Pralhad Shende, Chabutai Shende, Manish
Dodke, Deu Shelke and Vitthal Sahare are not related to Sunil
Jawalkar. From facts and circumstances of the case it has become
clear that initial incident had taken place in Pola festival. At that time
Pola festival was arranged in open land infront of house of Suresh
Bharati. Complainant Bhaskar Baiskar and Neminath Baiskar had
taken their bullocks in that festival. From evidence of witnesses it has
become clear that initial assault on Sunil Jawalkar had taken place in
that Pola festival. Hence it appears probable that Bhaskar Baiskar and
Neminath Baiskar who were brotherinlaws of Sunil Jawalkar had
gone to him to protect him. Hence presence of both these witnesses at
the time of incident which had taken place in Pola festival appears
probable. From facts and circumstances of the case it has become
clear that another incident had taken place at the house of Sunil
Jawalkar. Under such circumstances presence of wife of Sunil
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Jawalkar by name Lochana and presence of Vishwas Jawalkar, father
of Sunil Jawalkar at the time of incident appears probable. I am of the
opinion that at the most as these witnesses are related to deceased
Sunil Jawalkar, evidence of these witnesses is required to be
considered carefully against accused persons. However I am of the
opinion that merely they are related to Sunil Jawalkar, evidence of all
these witnesses cannot be discarded. Moreover evidence of all these
related evidence is corroborated by evidence of other independent
witness examined in the case. For that reason also evidence of these
related witnesses can be considered in the case.
64.. The learned Advocates appearing for accused persons
also submitted that evidence of these witnesses cannot be considered
against accused persons as they are enimically disposed off against
accused persons. They have mainly submitted that sister of accused
Maroti by name Tanubai had given evidence against Chabutai Shende
and accused Maroti had prohibited Chabutai Shende from coming to
her house as her character was not proper and she had illicit relations
with Sunil Jawalkar. However Chabutai Shende and Pralhad Shende
have denied all these facts during their crossexamination and
specifically denied that because of the same they are on enimical terms
with accused Maroti and others. On the contrary from their evidence
it appears that they are related to accused Maroti. There is no
S.T.No. 4/2005/83/ StateVsMaroti+4
independent evidence brought on record that Chabutai Shende had
illicit relations with Sunil Jawalkar. The other witnesses have also
denied suggestions of enmity given to them. From crossexamination
of these witnesses nothing specific has brought on record to show that
because of these enimical relations they are deposing false against
accused persons. Hence I am of the opinion that evidence of these
witnesses cannot be disbelieved on the ground of enmity.
60.. The learned Advocates appearing for accused persons
have mainly contested case on the ground that prosecution had not
taken evidence of material witnesses in the case. On perusal of record
of the case it appears that prosecution had not examined some of the
injured witnesses in the case. Prosecution had also not taken evidence
of Sitaram More and others who were present in the courtyard of
house of Sunil Jawalkar. However I am of the opinion that merely on
the basis of nonexamination of these witnesses, evidence of witnesses
who are examined in the case cannot be disbelieved. From evidence
of witnesses examined in the case the fact has brought before the court
how both the incidents had taken place. Under such circumstances, I
am of the opinion that only on this ground evidence of witnesses who
are examined in the case cannot be disbelieved. In this respect, it is
particular to note that initial incident had taken place in Pola festival.
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Pola festival was arranged at that time. Hence villagers had gathered
at that place. Hence presence of Vinayak Ban, Pralhad Shende, Deu
Shelke, Manish Dodke in Pola festival appears probable. The second
incident had taken place at the house of Sunil Jawalkar. House of
Vinayak Ban is infront of house of Sunil Jawalkar. House of Deu
Shelke is situated on back side of house of Sunil Jawalkar. On
western side of house of Sunil Jawalkar, there is house of Pralhad
Shende and Chabutai Shende. Hence it appears probable that at the
time of incident they had come to the house of Sunil Jawalkar. The
house of Bhaskar Baiskar is ahead of house of Sunil Jawalkar. Hence
it appears probable that Bhaskar Baiskar, Neminath Baiskar and
Manish Dodke had seen incident going on in the courtyard of Sunil
Jawalkar while going to their house by road. House of
Chandrashekhar Bulbule is on eastern side of house of Sunil
Jawalkar. Sunil Dhoot had cordial relations with Sunil Jawalkar.
Hence after getting knowledge about incident that had taken place in
Pola festival he had gone to the house of Neminath Baiskar and as per
say of mother of Neminath Baiskar he had come to the house of Sunil
Jawalkar to take him to hospital. Hence arrival of Chandrashekhar
Bulbule and Sunil Dhoot on the spot also appears probable.
61.. The learned Advocates appearing for accused persons
contested case on the ground that evidence of these witnesses
S.T.No. 4/2005/85/ StateVsMaroti+4
cannot be considered as statements of material witnesses were
recorded late by police. However contention of learned Advocates
appearing for accused persons in this respect cannot be accepted.
From facts and circumstances of the case it has become clear in that
incident four persons were killed. After incident both accused Maroti
and Vinod had created a terror in the village. They had threatened
Vitthal Sahare and others. They had also gone to the house of
Neminath Baiskar to kill him. Hence it has become clear that all the
villagers had frightened because of incident and they may not have
come forward to give statements to police. Irrespective of that police
had recorded statements of some of the witnesses after short period
after incident. Incident had taken place in the evening of 1492004.
Police had recorded statements of Neminath Baiskar, Chabutai Shende
and Vishwas Jawalkar on 1792004. Police had recorded statements
of Pralhad Shende and Manish Dodke on 2392004 and statement of
Deu Shelke on 2592004. I am of the opinion that statements of all
these material witnesses were recorded in a short period after incident.
Statement of Bhaskar Baiskar was recorded after 23 days. However
he had already given report of incident on the date of incident. Under
such circumstances although his statement is recorded late it will not
be fatal to prosecution. The statement of Lochana Jawalkar was
recorded after about two months. However there is evidence on
record that she was injured in incident and she had received injury on
her face as she was assaulted by sword on her face. There is evidence
on record that her teeth were stitched and she was admitted in Medical
College Nagpur. Under such circumstances, her statement was
recorded late. It is true that statement of Vitthal Sahare was recorded
after 23 days. However his evidence is only on threat given by
accused Maroti to him after incident. It is true that statement of
Vinayak Ban was recorded after two and half months and in that
respect no explanation is given by prosecution on record. However I
am of the opinion that evidence of Lochana Jawalkar was corroborated
by Chabutai Shende and evidence of Vinayak Ban is corroborated by
other witnesses examined in the case. Under such circumstances, I am
of the opinion that evidence of all these witnesses can be considered in
the case.
62.. The learned Advocates appearing for accused persons
mainly contested case on the ground that prosecution failed to bring
sufficient motive on record for causing death of four persons in the
incident. However contention of learned Advocates appearing for
accused persons in this respect cannot be accepted. From evidence of
witnesses it appears that Sunil Jawalkar had given his bullocks and
bullock cart to accused Maroti and accused Maroti had sold the same
misappropriated that amount. However accused persons had produced
S.T.No. 4/2005/87/ StateVsMaroti+4
two sale receipts on record at Exh. 74 and 75. Although Bhaskar
Baiskar had denied his signature it appears that both these receipts are
signed by him as attesting witness. On perusal of both these receipts it
appears that Sunil Jawalkar had sold his bullocks and bullock cart to
accused Maroti. Hence it appears doubtful that it was the reason for
this incident. From evidence of Vishwasrao Jawalkar it appears that
amount of Rs.2500/ of grocery articles was outstanding against
accused Maroti and he was not paying the same. However in this
respect there is no other oral or documentary evidence on record.
Hence it also does not appear probable that for this reason this incident
had taken place. However from evidence of material witnesses
examined in the case it has become clear that accused Maroti was
suspecting that Sunil Jawalkar was having illicit relations with his
daughter by name Pushpa. Under such circumstances, it appears
probable that for this reason this incident had taken place. From facts
and circumstances of the case also it has become clear that initially
accused Vinod had assaulted Sunil Jawalkar only. However as
Neminath obstructed him accused Vinod had assaulted him. For this
reason both accused Maroti and Vinod after incident had gone to
house of Neminath to kill him. It appears that while assaulting Sunil
Jawalkar, Parashram Jawalkar had obstructed accused Maroti and
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Vinod. Hence he was also assaulted by them. It appears that
Chandrashekhar Bulbule and Sunil Dhoot had come there to protect
Sunil Jawalkar and hence they were also assaulted. Hence it has
become clear that as accused Maroti and Vinod were suspecting illicit
relations of Sunil Jawalkar with Pushpa they had assaulted all these
persons. Hence it was the motive for this incident.
63.. The learned Advocates appearing for accused persons
also mainly contested case on the ground that report given by Bhaskar
Baiskar cannot be considered as F.I.R. They also submitted that he
had not seen incident that had taken place at the house of Sunil
Jawalkar. Irrespective of that he had mentioned about the same in his
report. A.P.I. Gotmare had not verified whether contents written in
report about death of different persons is true or false and had falsely
registered offence under section 302 of Indian Penal Code. Hence
they submitted that F.I.R. registered in the case is false and
investigation done on the basis of that false report has vitiated the
same. However contention of learned Advocates appearing for
accused persons in this respect cannot be accepted. From evidence of
A.P.I. Gotmare it has become clear that incident had taken place on
the day of Pola festival. Hence he was on patrolling duty. At that
time he received information that quarrel had taken place at Mozar. I
am of the opinion that police persons moving within their jurisdiction
S.T.No. 4/2005/89/ StateVsMaroti+4
generally get information about different offences that had taken place
within their jurisdiction. However I am of the opinion that
information received by them itself will not give detail idea about
incident that had taken place. Hence information received by police
officer itself cannot be considered as report of the case. In this case it
appears that police patil of village Mozar had also gone to Police
Station for giving information about incident. However nothing has
brought on record that he had given any information in Ladkhed
Police Station. There is no evidence on record that Police Patil had
seen incident and hence he had knowledge about the incident. Under
such circumstances, report given by Bhaskar Baiskar appears to be
true F.I.R. of incident. From evidence of Bhaskar Baiskar it has
become clear that he had no personal knowledge about death of
persons that had taken place at the house of Sunil Jawalkar. However
he had received information about the same from villagers and hence
he had mentioned about the same in his report. Hence it appears
probable that as Bhaskar Baiskar had stated about death of Sunil
Jawalkar and others in his report, A.P.I. Gotmare had registered
offence under section 302 of Indian Penal Code against accused
persons. It is true that he received confirmation of death of those
persons subsequently. However I am of the opinion that only on the
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basis of the same it cannot be said that report given by Bhaskar
Baiskar was false and because of which investigation done by A.P.I.
Gotmare is vitiated.
64. The learned Advocates appearing for accused persons
also contested case on the point that although Vishwasrao Jawalkar
was present on the spot at the house of Sunil Jawalkar he had given
totally different version in his evidence. Hence they submitted that the
entire evidence laid by prosecution against accused persons appears
doubtful. However contention of learned Advocates appearing for
accused persons in this respect cannot be accepted. From evidence of
Vishwasrao Jawalkar it has become clear that as there was traffic of
bullocks by the road and he was holding Tejaswini daughter of
Parashram Jawalkar in his hands, he required time for returning back
to his house. From his evidence it has also become clear that for some
time he halted near his flour mill. He had also required time for
urination. Thereafter he had come in the courtyard of house of Sunil
Jawalkar. From evidence of Vishwasrao Jawalkar it has become clear
that at that time accused Vinod and Maroti were coming out of his
house. Hence it has become clear that by that time incident had
already taken place. Hence he clearly admitted that he had not seen
Sunil Jawalkar and others in courtyard of his house and he had also
not seen their dead bodies. He also admitted that he could not see
S.T.No. 4/2005/91/ StateVsMaroti+4
what had taken place inside the house as he himself had not gone
inside the house. Under such circumstances, I am of the opinion that it
cannot be considered that evidence given by this witness is
contradictory to the evidence given by other witnesses in the case. It is
true that however he had stated in his evidence that accused Maroti
had assaulted his wife Shashikalabai by wooden plank and one of the
blow hit on his leg. However I am of the opinion that only on the
basis of this statement of Vishwasrao Jawalkar entire evidence laid by
other prosecution witnesses cannot be disbelieved.
65. The learned Advocates appearing for accused persons
mainly contested the case on the ground that accused Maroti and
Vinod had received injuries in that incident and prosecution had not
explained the same. Prosecution had taken evidence of Dr. Narsing
Rathod as P.W. 19 in the case. He had medically examined accused
Vinod and Maroti and issued certificates as per Exh. 152 and 153.
However during crossexamination he admitted that injuries received
by them might have caused by agricultural implements or by falling
on it. He also admitted that injury no.2 received by accused Vinod
was possible by fall on rough surface. On perusal of medical
certificates it appears that injuries received by accused Maroti were
contusions and injury No.2 received by accused No.2 was also
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contusion. It is the case of prosecution that Neminath had given kick
blow to accused Vinod when he assaulted Sunil Jawalkar by sword in
Pola festival and hence Vinod fell down on the ground and sword
from his hand also fallen on the ground. I am of the opinion that under
such circumstances injuries received by Vinod appears probable.
From medical certificates of both accused persons it is not appearing
that they had not received any grievous injuries. I am of the opinion
that under such circumstances prosecution is not required to prove
injuries received by accused persons. I am of the opinion that as such
serious assault had taken place, there is possibility of receiving such
type of simple injuries by accused Maroti and Vinod. Hence I am of
the opinion that it cannot be said that only on these ground the case of
prosecution will vitiated.
66. It is the case of accused persons that at the time of
incident all the four deceased persons were under influence of liquor.
It is their case that when accused Vinod had come in Pola festival
Parashram Jawalkar had tried to assault him by sword. However
sword of Parashram hit Sunil Jawalkar and caused injury to his hand.
It is the case of accused persons that hence thereafter both accused
Vinod and Maroti had come to the house of Sunil Jawalkar to take his
explanation about the incident. However deceased Sunil Jawalkar
and Parashram Jawalkar were under influence of liquor and they were
S.T.No. 4/2005/93/ StateVsMaroti+4
moving swords which were present in their hands. It is the case of
accused persons that because of the same Sunil Jawalkar and
Parashram Jawalkar received injuries by their own swords. It is also
their contention that Sunil Dhoot and Chandrashekhar Bulbule had
come there to separate the quarrel. They were also under influence of
liquor. They also received injuries at the hands of Sunil Jawalkar and
Parashram Jawalkar and died because of the same. Hence they
submitted that accused persons are not responsible in respect of death
of all these four persons. However the contention of accused persons
in this respect cannot be accepted. It is true that from viscera reports of
all four deceased persons it has become clear that they had consumed
liquor.However it appears that as it was a day of Pola festival they
might have consumed liquor.However there is no independent
evidence on record that they were under influence of liquor.From
evidence of all material witnesses examined in the case nothing has
come on record that either Sunil Jawalkar or Parashram Jawalkar was
having sword in his hand at the time of incident.Sunil Jawalkar and
Parashram Jawalkar had received near about 20 to 25 injuries and
many of the injuries received by them were fatal in nature. Hence it
does not appear probable that such injuries can be received only by
moving swords under influence of liquor.There is no evidence on
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record that there was any dispute in between Sunil Jawalkar and
Parashram Jawalkar and hence they might have caused such fatal
injuries to each other. From post mortem reports of Chandrashekhar
Bulbule and Sunil Dhoot it has become clear that they had received
fatal injuries. There was transection of spinal cord of Chandrashekhar
Bulbule, I am of the opinion that under influence of liquor by moving
swords such type of injuries are not possible. Moreover Sunil
Jawalkar and Parashram Jawalkar were found lying in injured
condition inside the house. The door of their house was broken. It is
not the case of accused persons that under influence of liquor they had
broken door of their own house and assaulted each other inside the
house. Under such circumstances, the defence of accused persons
does not appear probable.
As to Point No.2 :
67. It is the case of prosecution that all accused persons
formed an unlawful assemble at the time of incident. For forming an
unlawful assembly presence of five or more than five persons is
required at the time of incident. Moreover any over act will also be
required at the instance of accused persons. Mere presence of accused
on the spot will not be sufficient to hold him member of an unlawful
assembly. In this case incident had taken place in two parts. First part
had taken place in Pola festival and other part had taken place at the
S.T.No. 4/2005/95/ StateVsMaroti+4
house of Sunil Jawalkar. From evidence of witnesses examined in the
case it appears that only witness Neminath had shown presence of all
five accused persons at the time of incident that had taken place in
Pola festival. However the other witnesses who were present
alongwith him in Pola festival such as complainant Bhasikar Baiksar
and Manish Dhoke alongwith other witnesses who had seen that
incident have not stated about presence of accused Parashram
Gadmade and Purushottam Gadmade at the time of incident that had
taken place in Pola festival. Hence the only version of Neminath
cannot be accepted that these two accused persons were present at the
time of incident that had taken place in Pola festival.
68. From evidence of witnesses examined in the case, it has
become clear that witnessers Deu Shelke and Vishwasrao had stated
about presence of all five accused persons at the time of incident that
had taken place in the house of Sunil Jawalkar. From evidence of
other witnesses it appears that they had not shown presence of accused
Om Gadmade at the house of Sunil Jawalkar. Witness Vinayak Ban
has shown his presence at the house of Sunil Jawalkar. However the
evidence of Vinayak Ban in this respect is by way of omission. Hence
in absence of evidence of other witnesses in this respect, the evidence
of Deu Shelke and Vishwasrao Jawalkar in this respect cannot be
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accepted. Moreover Vishwasrao Jawalkar and Deu Shelke had shown
overt act only on the part of Parashram Gadmade, alleging that he
instigated accused Maroti and Vinod to kill Sunil Jawalkar and others.
They had not shown any overt act on the part of accused. Purushottam
Gadmade. Looking to these facts of the case, I am of the opinion that
prosecution failed to prove presence of all the five persons either in
Pola festival or at the house of Sunil Jawalkar. Hence contention of
prosecution cannot be accepted that accused Parashram and
Purushottam Gadmade were present in Pola festival and accused Om
Gadmade was present at the house of Sunil Jawalkar and that accused
Purushottam Gadmade was member of an unlawful assembly at the
house of Sunil Jawalkar. Hence prosecution failed to prove that all
accused persons acted in furtherance of their common object of
unlawful assembly. Hence any accused cannot be convicted for the
act of other accused persons. Hence it has become clear that the
individual act of accused persons will have to be considered. Hence I
answer Point No.2 in negative.
As to Point No.3 :
69. From evidence of prosecution witnesses it has become
clear that at the time of incident, that had taken place at the house of
Sunil Jawalkar accused Maroti and Vinod had come there alongwith
swords to assault Sunil Jawalkar and others and broke open door of
S.T.No. 4/2005/97/ StateVsMaroti+4
house of Sunil Jawalkar. Hence both of them had unautorizedly
entered the house of Sunil Jawalkar after making preparation to
assault him and others. Thus prosecution proved offence punishable
under section 452 of Indian Penal Code against accused Maroti and
Vinod. Hence I answer Point No.3 in affirmative against accused
Maroti and Vinod.
As to Point No.4 :
70. From evidence of prosecution witnesses examined in the
case it has become clear that only Bhaskar had alleged overt act
against accused Purushottam and Parashram Gadmade that they
instigated accused Maroti and Vinod to kill Sunil Jawalkar and others
at the house of Sunil Jawalkar. As per evidence of Neminath both of
them instigated Vinod in Pola festival to assault Neminath. As per
evidence of Deu Shelke and Vishwasrao Jawalkar only accused
Parashram instigated accused Maroti and Vinod to kill Sunil Jawalkar
and others at the house of Sunil Jawalkar. Hence it has become clear
that other witnesses have not stated about overt act of accused
Parashram and Purushottam Gadmade. Hence evidence of Bhaskar,
Neminath, Deu and Vishwasrao in this respect cannot be accepted.
Moreover as per evidence of these witnesses accused Purushottam and
Parashram had only instigated accused Maroti and Vinod to assault
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Sunil Jawalkar and others. They had not participated incident and in
that respect there is no separate charge framed against them. Hence in
absence of evidence of other witnesses contention of prosecution
cannot be accepted that accused Parashram and Purushottam instigated
accused Maroti and Vinod to kill Sunil Jawalkar and instigated
accused Vinod to assault Neminath. Hence they cannot be convicted
for the same. In absence of formation of an unlawful assembly they
cannot be held responsible for the act of other accused persons and
convicted for the same. Hence prosecution failed to prove any of the
offences against accused Parashram and Purushottam Gadmade.
71. From evidence of Lochana Jawalkar, Chabutai Shende,
Pralhad Shende and Vinayak Ban accused Maroti and Vinod had
assaulted Sunil Jawalkar by swords and caused his death. As per
evidence of Lochana Jawalkar accused Maroti and Vinod had
assaulted Parashram Jawalkar and caused his death. From evidence
of Vinayak Ban, Pralhad Shende, Chabutai Shende, Lochana Jawalkar,
accused Vinod had assaulted Sunil Dhoot by sword on his neck and
caused his death. From evidence of Vinayak Ban it appears that
accused Maroti had assaulted Chandrashekhar Bulbule and caused his
death. Hence it has become clear that accused Maroti is responsible
for causing death of Sunil Jawalkar, Parashram Jawalkar and
Chandrashekhar Bulbule and accused Vinod is responsible for causing
S.T.No. 4/2005/99/ StateVsMaroti+4
death of Sunil Jawalkar, Parashram Jawalkar and Sunil Dhoot. Hence
I answer Point No.4 in affirmative against accused No.1 Maroti and
accused No.2 Vinod only.
As to Point No.5 :
72. From evidence of Lochana Jawalkar and Chabutai Shende
it has become clear that accused Maroti had assaulted Lochana
Jawalkar by sword on her head. From evidence of Vishwasrao
Jawalkar it appears that accused Maroti assaulted him by wooden
plank on his leg. From evidence of Neminath, Bhaskar, Manish
alongwith evidence of other evidence it has become clear that accused
Vinod had assaulted Neminath by sword. From evidence of these
witnesses it has become clear that accused Om Gadmade had assaulted
Neminath by stick on his head. From evidence of prosecution
witnesses it has become clear that prosecution could not examine
Medical Officer who medically examined these injured witnesses.
Hence nature of injuries received by them has not come on record.
There is no evidence on record if injuries received by them were
grievous in nature and were sufficient to cause their death. Hence it
cannot be considered that these injuries were caused with intention to
kill them. However prosecution proved that accused Maroti had
assaulted Lochana Jawalkar and Vishwasrao Jawalkar and accused
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Vinod had assaulted Neminath by sharp weapon and accused Om
Gadmade had assaulted Neminath by dangerous weapon like stick.
Hence prosecution proved offence punishable under section 324 of
Indian Penal Code accused Maroti, Vinod and Om Gadmade. Hence I
answer Point No.5 accordingly against accused Maroti, Vinod and
Om Gademade.
As to Point No. 6 :
73. It is the case of prosecution that at the time of incident
accused persons were holding prohibited arms in their hands. From
evidence of witnesses recorded in the case, it has become clear that
accused Maroti and Vinod were holding swords and accused Om
Gadmade was holding stick at the time of incident. To prove the
offence punishable under section 4 r/w 25 of Arms Act it is necessary
to prove that Central Government had issued notification in respect of
any area prohibiting possession of any particular arm in that area.
However no such notification issued by Central Government is
produced on record. Hence in absence of the same prosecution failed
to prove the offence punishable under section 4 r/w. 25 of Arms Act
against accused persons. Hence I answer Point No.6 in negative.
As to Point No.7 :
74. It is the case of prosecution that Sub Divisional
Magistrate had issued promulgation under section 37 of Bombay
S.T.No. 4/2005/101/ StateVsMaroti+4
Police Act, prohibiting villagers from keeping in possession of arms
like swords etc. The copy of order is produced on record. It being a
public document can be taken into consideration. However the said is
issued for the period from 1382004 to 2782004. There is no
evidence on record that any such promulgation was in existence on the
date of incident on 1492004. Hence prosecution failed to prove
breach of such promulgation by accused persons on the date of
incident. Hence I answer Point No.7 in negative.
75. From discussion made above it has become clear that
prosecution failed to prove any offences against accused Parashtram
Gademade and Purushottam Gadmade. Hence they are to be acquitted
from all the charges made against them. From discussion made above
it has become clear that prosecution proved offences punishable under
section 302, 452, and 324 of Indian Penal Code against accused
Maroti and Vinod and proved offence punishable under section 324 of
Indian Penal Code against accused Om Gadmade.
[At this stage I stopped my judgment to hear the accused No.1to 3 on the point of sentence as offences punishable under section 302, 452, and 324 of Indian Penal Code against accused Maroti and Vinod and proved offence punishable under
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section 324 of Indian Penal Code against accused Om Gadmade]
A.S.J.DarwhaDt/1662008.
76.. I heard accused No.1 to 3 on the point of sentence. They
prayed for leniency.
77.. The learned A.P.P. appearing for prosecution submitted
that there is murder of three innocent persons Prashram Jawalkar,
Sunil Dhoot and Chandrashekhar Bulbule. Both the sons from the
house of Vishwasrao Jawalkar by name Sunil Jawalkar and Parashram
Jawalkar were killed. They were assaulted brutally. They also caused
injuries to other persons at the time of incident and threatened persons
of locality and created terror in the locality. Hence he submitted that it
is rarest of rate case. Hence he submitted that death sentence is the
only adequate punishment for accused No.1 and 2. For that purpose
he relied on (1999) C.C.R. 778 Ranadhir Basu Vs State. In this
case there was calculated murder of four persons to wipe out the entire
family. The Hon'ble Court considered that case is rarest of rare in
nature and had confirmed death sentence of accused No.1. He also
relied on IV(1999) C.C.R. 25 State of U.P.Vs Dharmendrasing. In
this case accused persons in furtherance of their diabolic notice
conspired to teach lesson to complainant by killing such members of
S.T.No. 4/2005/103 / StateVsMaroti+4
family, who were vulnerable and helpless. The Hon'ble Court
considered that as the offence was committed in barbaric nature the
case falls under rarest of rare cases and confirmed death sentence. He
also relied on I (2002) C.C.R. 101 Lehana Vs State of Hariyana.
In this ruling although the death sentence was altered to sentence of
imprisonment for life, the Hon'ble Court has given guidelines when
death sentence can be imposed. As per guidelines given if by the act
of accused persons community is so shocked and the act of accused
persons is extremely brutal then under such circumstances, death
sentence can be imposed.
78.. I also heard learned Advocate appearing for accused
No.1. He submitted that the act of accused persons will not fall under
rarest of rare case. They had no intention to kill other three persons.
The persons died in the incident had consumed liquor. Hence he
submitted that it is not the case for imposing death sentence against
accused No.1. For that purpose he relied on 2002 All Maharashtra
Reporter 2031 (S.C.) FarooqVsState of Kerala . In this case
accused persons hurled explosives on under trial prisoner while he
was being taken to the court. Prisoner died and others received
serious injuries. The Hon'ble Court considered that it is not rarest of
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rare case to impose death sentence. However in this case there was
death of only one person. He also relied on 2002 All Maharashtra
Reporter (Criminal) 2605 (S.C.) Dharmendrasing Vs State of
Gujrath. In this case accused was suspecting character of his wife.
He caused death of his two children who were asleep by sharp edged
weapon as he was suspecting that they are not his sons. However the
Hon'ble Court considered that as there is no previous criminal record
of accused and there was no danger to society from accused, the
Hon'ble Court altered death sentence imposed on him to life
imprisonment holding that it is not rarest of rare case. However such
are not the facts of this case. In this case two other persons of locality
were also killed without any fault on their part.
79. I also heard learned Advocate appearing for accused No.3
Om Gadmade, he submitted that accused Om Gadmade is in jail for
more than three years. Hence he submitted that he has already under
gone the maximum punishment prescribed for the offence. Hence he
submitted that he should be released.
80.. I also heard learned Advocate appearing for accused
No.2. He submitted that it was not a preplanned incident. The
incident had taken place on the date of Pola festival in fist of anger.
He also submitted that the number of persons killed cannot be the only
criteria for inflecting sentence. He submitted that there is no evidence
S.T.No. 4/2005/105/ StateVsMaroti+4
that it was cold blooded murder. Hence he submitted that the case will
not fall within the definition of rarest of rare case. He submitted that
moreover accused No.2 Vinod had just attended majority at the time
of incident. He had no capacity of understanding about the
seriousness of the incident. Hence he submitted that death sentence
should not be awarded against accused Vinod. He also submitted that
he should have an opportunity of reformation.
81.. From facts and circumstances of the case it has become
clear that accused no.1 and 2 were suspecting that Sunil Jawalkar had
illicit relations with daughter of accused Maroti by name Pushpa.
They intended to kill Sunil Jawalkar. However it appears that they
had killed other persons Parashram Jawalkar, Chandrashekhar Bulbule
and Sunil Dhoot who tried to protect Sunil Jawalkar. Hence they had
also gone to the house of Neminath to kill him. It has also become
clear that they had also caused injuries to other persons while causing
death of Sunil Jawalkar and others. They had also given threat to
Vitthal Sahare and others. They moved in locality with blood stained
clothes and swords and created terror in the village. They had also
caused death of all the four persons in brutal manner. They cut into
pieces Sunil Jawalkar and his brother Parashram Jawalkar by
inflecting as many as 35 and 24 injuries respectively to them including
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as many as 24 and 20 vital injuries to them respectively. The blow by
sword given on neck of Sunil Dhoot by accused Vinod was so severe
that, that itself caused his death. The blow given by sword by accused
Maroti to Chandrashekhar Bulbule was so severe that it cut his spinal
cord. Thus both of them had caused death of Sunil Jawalkar and
others in extremely brutal manner. They had also not paid any heed to
all the persons who tried to pacify them. Hence it appears that both of
them had already decided to kill Sunil Jawalkar any how and hence
they caused death of other three persons who had come to save Sunil
Jawlkar. Looking to heinous nature in which incident had taken
place, I am of the opinion that the case falls under rarest of rare case.
However from facts and circumstances of the case it appears that at the
time of incident accused No.2 Vinod had just attained majority. It was
required for accused Maroti to control him. However he had not
controlled him and helped him in causing death of Sunil Jawalkar and
others. Accused No.2 Vinod being a young boy could not have
controlled himself. However accused No.1 Maroti was aged person
and was Sarpanch of village for considerable period. Irrespective of
that he had committed offence in such a brutal manner. Hence it has
become clear that he committed the same in cold blooded manner and
he must have committed the same to create terror in the society and to
show his supremacy in the society. Looking to these facts of the
S.T.No. 4/2005/107/ StateVsMaroti+4
case and in view of the guidelines given in the cases relied upon by the
prosecution, I am of the opinion that act of accused Maroti falls under
rarest of rare case and the death sentence will be the only adequate
punishment for him. Looking to the young age of accused No.2 Vinod
at the time of incident, I am of the opinion that he must be considered
for reformation. Under such circumstances, I am of the opinion that it
will not be proper to give death sentence to accused Vinod. With
these observations, I proceed to pass the following order.
Order
Accused No.1 Maroti Namdeo Shrirame, r/o Mozar (Ijara)
Tq. Darwha, District Yavatmal is hereby convicted for the offence
punishable under section 302 of Indian Penal Code for committing
murder of Sunil Jawalkar, Parashram Jawalkar and Chandrashekhar
Bulbule and sentenced to death and to pay a fine of Rs. 1,000/ (Rs.
One Thousand only) in default to undergo further simple
imprisonment for one month.
Accused No.1 Maroti is also hereby convicted for the
offence punishable under section 324 of Indian Penal Code for
voluntary causing hurt to Lochana Jawalkar and Vishwasrao Jawalkar
and sentenced to suffer rigorous imprisonment for three years and to
pay a fine of Rs.500/ (Rs. Five Hundred only) in default to undergo
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further simple imprisonment for fifteen days.
Accused No.2 Vinod Maroti Shrirame, r/o Mozar (Ijara),
Tq. Darwha, District Yavatmal is hereby convicted for the offence
punishable under section 302 of Indian Penal Code for committing
murder of Sunil Jawalkar, Parashram Jawalkar and Sunil Dhoot and
sentenced to suffer rigorous imprisonment for life and to pay a fine of
Rs.1,000/ (Rs. One Thousand only) in default to undergo simple
imprisonment for one month.
Accused No.2 Vinod is also hereby convicted for the
offence punishable under section 324 of Indian Penal Code for
voluntary causing hurt to Neminath and sentenced to suffer rigorous
imprisonment for three years and to pay a fine of Rs. 500/ (Rs. Five
Hundred only) in default to undergo further simple imprisonment for
fifteen days.
Accused No.1 Maroti and accused No.2 Vinod are also
convicted for the offence punishable under section 452 of Indian Penal
Code and sentenced to suffer rigorous imprisonment for seven years
and to pay a fine of Rs.1,000/ (Rs. One Thousand only) each in
default to further undergo simple imprisonment for one month.
Accused No.1 Maroti shall be hanged by neck till his
death.
All the sentences awarded to accused No.1 and 2 shall run
S.T.No. 4/2005/109/ StateVsMaroti+4
concurrently.
The order of execution of death sentence shall be
executed only if confirmed by the Hon'ble High Court.
Accused No.3 Gopikisan @ Om Parashram Gadmade is
hereby convicted for the offence punishable under section 324 of
Indian Penal Code for voluntary causing hurt to Neminath and
sentenced to suffer rigorous imprisonment for three years. The period
of his detention in jail be given as set off to him. He had already
undergone the sentence and he be set at liberty.
Accused No.4 Parashram Bakaram Gadmade and accused
No.5 Purushottam Parashram Gadmade, both r/o Mozar (Ijara), Tq.
Darwha, District Yavatmal are hereby acquitted for the offences
punishable under sections 147, 148, 302 r/w 149 and 307 r/w 149 of
Indian Penal Code and under section 4 r/w 25 of Arms Act and under
section 135 of Bombay Police Act.
Their bail bonds shall stand cancelled.
Accused No.1 to 3 are also acquitted for the offences
punishable under section 147 and 148 of Indian Penal Code and under
section 4 r/w 35 of Arms Act and under section 135 of Bombay Police
Act.
Period of detention of accused No.1 and 2 be given as set
/110/
off to them.
Property except swords be destroyed and swords be sent
to District Magistrate, Yavatmal for disposal according to law.
However order of disposal of property will be executed only after
confirmation of order of death sentence by the Hon'ble High Court.
The matter be sent to Hon'ble High Court for
confirmation of death sentence awarded to accused no.1 Maroti
Namdeo Shrirame.
(D.R.Shirasao) Additional Sessions Judge,
Darwha.Dt/1662008 Dt/1662008.