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CASE NO.: Appeal (crl.)  708 AND 832 of 2005

PETITIONER: Rajendra Prabhu Chikane & another etc

RESPONDENT: State  of Maharashtra  etc

DATE OF JUDGMENT: 01/05/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

1.      These two connected appeals (Criminal Appeal No. 708/2005 and  Criminal Appeal No. 832/2005) have been filed against the common  judgment and final order dated 2.3.2005 and 3.3.2005 passed by the Bombay  High Court in Criminal Appeal Nos. 99/2001 and 609/2000.

2.      Heard learned counsel for the parties and perused the record.

3.      Criminal Appeal No. 708/2005 has been filed by accused No. 2  Rajendra Chikane and accused No. 3 Shashikant Chikane, whereas, Criminal  Appeal No. 832/2005 has been filed by accused No. 1 Sharad Chikane in  Sessions Case No. 250/1999.

4.      The Additional Sessions Judge, Solapur in Sessions Case No.  250/1999 had acquitted accused No. 2 and 3 of the offence under Section  302/34 IPC, but had convicted accused No. 1 Sharad Chikane under Section  302 IPC and sentenced him to life imprisonment as well as fine.   

5.      Against the said judgment of the trial court, accused No. 1 Sharad  Chikane, filed an appeal in the High Court which was dismissed, whereas,  the appeal filed by the State of Maharashtra against acquittal of accused No.  2 and 3, was allowed and both the accused were convicted under Section  302/34 IPC and sentenced to life imprisonment along with fine.

6.      The prosecution case was that the deceased Sukhdeo Chikane was the  Sarpanch of village Gulpoli, Taluka Barshi, Dist. Solapur since 1990. He  was a resident of village Gulpoli. The complainant (PW1) Vikram Chikane  who is an eye witness was a cousin brother of the deceased Sukhdeo.   Dipak  Chikane (PW2) was the real brother of the complainant Vikram and thus  another cousin brother of the deceased Sukhdeo.  Avinash Chikane (PW3)  who is the second eye witness was a close relative of PW1 Vikram and PW2  Dipak.  Anil Mali (PW4) was a person who was from the Shivsena group in  the village, of which group the deceased Sukhdeo was the leader.  

7.      The father of deceased Sukhdeo was Bhaskar. An agricultural land of  Bhaskar was situated next to the land of one Kisan Sawant who was his son- in-law. In respect of the said land there was a boundary dispute between the  family members of Bhaskar Chikane and Kisan Sawant. Another son of  Bhaskar named Shirish had filed Regular Civil Suit No.204/93 against Kisan  Sawant and one another seeking an injunction. The said suit had been filed  on 30.4.1993. On 26.12.1996 the TILR had effected measurement in respect

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of the disputed areas which were the subject matter of the suit. The  prosecution case was that in view of such disputes, there was bad blood and  enmity between the deceased Sukhdeo on the one hand and the family  members of Bhaskar including his sons. The record indicates that on  13.10.1997, deceased Sukhdeo had also filed a criminal case being Criminal  case No.6253/97 in the Court of JMFC Barshi. The said case was filed  against accused No.1 Sharad, accused No.3 Shashikant and one of their  brother Dhananjay alleging commission of an offence under Sections 323,  504 & 34 of the IPC. The evidence indicates that such legal proceedings  were pending in the Court when the incident, which is the subject matter of  the present case, took place on 16.9.1999.  On 16.9.1999, at about 9.30 A.M.  deceased Sukhdeo alongwith (PW1) Vikram, (PW3) Avinash, (PW4) Anil  Mali, Brahmadev Chikane, Babruvan Machale, Sopan Machale, Shridhar  Machale, Nagnath Machale, Laxman Shinde and Gautam Chikane started  from village Gulpoli in a jeep. They were proceeding to the Sub-Registrar  office at village Vairag in order to execute a Sale deed by which one of them  i.e. Brahmdeo Chikane was to purchase the land of one Sopan Machale,  which land was situated at village Gulpoli. The jeep carrying the persons as  aforesaid reached the Vairag Sub-Registrar’s office at about 12.00 noon. A  Stamp vendor/Bond writer by name Kale scribed the sale deed and thereafter  the sale deed was executed in the Sub-Registrar’s office.  After the execution  of the sale deed at about 1.30 P.M., the aforesaid persons came out of the  Sub-Registrar’s office and reached upto their jeep which was standing on the  road adjoining the office. At that time accused No.1 Sharad Chikane,  accused No.2 Rajendra Chikane and accused No.3 Shashikant @ Sheshrao  Chikane came running towards them from the eastern side. Accused No.3  threw chilli powder in the eyes of deceased Sukhdeo, and then accused No.1  gave a blow on the head of the deceased Sukhdeo with a Sattur which he  was carrying with him. On receiving this blow Sukhdeo collapsed on the  ground. All the three accused Sharad, Shashikant and Rajendra then inflicted  blows with Satturs which they were carrying on the head of the deceased.   Sukhdeo received several injuries on his head and his brain matter came out  of his skull.  Thereafter all the accused persons ran away towards the east  carrying their Satturs. PW1 Vikram Chikane who had witnessed the entire  incident ran towards the direction of Vairag police station. He arrived at the  police station in a frightened condition at about 1.45 P.M. and narrated the  incident to the police.  At 2.00 P.M. i.e. within half an hour of the  occurrence of the incident, the police recorded the FIR (Exh.15) of PW1  Vikram. In his FIR Vikram named all the 3 accused and categorically stated  that they had assaulted the deceased on his head with the koytas which they  were carrying with them.  

8.      On the basis of the FIR (Exh.15), PW11 Police Sub-Inspector  Rajkumar Kendre registered an offence under Section 307 read with 34 of  the IPC and 135 of the Bombay Police Act against all the three accused  named in the FIR. Even while he was recording his FIR he sent his staff  members ahead to the spot of incident for taking the injured to the hospital.  He himself followed and reached the spot of the incident a little later. On  reaching the spot he found that a lot of blood could be seen on the spot. Two  pieces of brain matter and a piece of a skull were also found on the spot. He  saw a goggle, a pair of slippers, a steel glass and a Rs.10/- note on the spot.  He prepared a spot panchanama (Exh.25) in the presence of panchwitness in  respect of the seizure of the aforesaid articles as well as seizure of blood  stained soil. Articles 1 to 9 produced before the Court were the articles  which were seized under the said panchanama.  Even before the arrival of  PW11 PSI Rajkumar Kendre, the deceased Sukhdeo had been removed from  the aforesaid scene of the offence by PW3 Avinash, PW4 Anil Mali and one  Vilas Sawant. These three persons had put Sukhdeo in another private jeep  and had rushed him towards the Solapur Civil Hospital. While they were  proceeding towards the hospital they saw PW2 Dipak on the way near Naka  No.3. The jeep was stopped and Dipak also boarded this jeep. By that time  they reached village Nanaj, they found that the body of Sukhdeo had cooled.  They however, proceeded to Solapur civil hospital where Sukhdeo was  declared dead on admission. While carrying the body of Sukhdeo the clothes  of PW3 Avinash Chikane and Vilas Sawant had got stained with blood.

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Articles 19 & 20 produced before the Court were the clothes of PW3  Avinash which subsequently came to be attached in the course of the  investigation.

9.      At the hospital, the police interrogated Dipak (PW2) and Dipak is said  to have narrated that Sukhdeo had been injured near Sub-Registrar’s office  Vairag by the three accused with a Sattur and by a pistol. One Police Head  Constable Abdul Shaikh (Court witness No.1) was then on duty at the Civil  hospital and he was a Police officer to whom Dipak made his disclosure as  aforesaid. (CW1) Abdul Shaikh then prepared an inquest panchanama in  which it was mentioned that Sharad Chikane, Sheshrao Chikane and others  had fired a bullet from the revolver and had caused injuries to Sukhdeo by  means of a Sattur used for cutting sugarcane. Abdul Shaikh made an entry in  the station diary maintained at the Police Chowky at the Civil hospital. A  copy of this entry was exhibited (Exh. 66) during the trial through the  evidence of (CW 1) Abdul Shaikh.  

10.     In the meanwhile, (PW11) PSI Kendre had recorded the statement of  eight witnesses such as Narsinh Kale, Kamalakar Govardhan and others. He  sent a police party for searching out the accused persons and at 6.15 in the  evening accused No.1 and accused No.2 were accosted and brought to the  police station. They were arrested under an arrest panchanama (Exh.50)  conducted between 8.15 hours to 19.00 hours.  

11.     At the Civil hospital the post mortem on the dead body of Sukhdeo  commenced at 6.30 P.M. and was completed at 8.30 P.M. The following  external injuries were found on the body of the deceased Sukhdeo :-

(i)     Perforating chop wounds over front of head  involving forehead and frontal regions extending  between lt frontal (at 2" above lt ear) to back of Rt ear  measuring about 14" x 3" cavity deep ; vault of skull is  fractured into multiple pieces and cranial cavity is  exposed to exterior exposing the lacerated brain.  Anatomical continuity is lost, deformity due to disruption  of scalp and skull into multiple pieces present disrupted  scalp tissue and fractured bony fragments embodied and  driven inside the brain and cranial cavity. Damage is  irregular and directed obliquely from lt fronto parietal  region to the level of nose and orbits on centre and upto  rt. ear on right side.

(ii)    Oval shaped perforating wound over Rt. side of  face in maller region 1" x 112" x deep upto maxillary  sinus. Fractured bony fragments driven inside. No E/o  blackening soothing or sinjing.

(iii)   Irregular perforating injury at base of nose of size  2&1/2" x 1/2" cavity deep cutting through nasal bone.  Skin flap separated exposing the cutbone associated with  fracture underneath involving nasal bone, bones of  anterior cranial fossa.

(iv)    Contused abrasion over face in between injury  No.2, 3 described associated with extra vassation and  fracture underneath.

(v)     Transversely situated contusion over rateral aspect  at rt. side of neck measuring 3" in length associated with  extra vassation underneath (dark red in colour).

(vi)    Incised chop wound over back of head in Rt.  occipital region vertically situated measuring 4" x 1/2" x  cavity deep. Bone cut obliquely into pieces and driven  inwards.

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(vii)   Chop wound vertically situated behind Rt. ear 3" x  1/2" x bone deep ends are split injury is crossing injury  No.1 resulting into deformity and loss of anatomical  continuity at Rt.ear.

12.     The doctor opined that all the injuries were fresh and caused due to a  heavy sharp object. That injury No.1 was due to multiple blows in the same  region. He found that there was a fracture of the vault of the skull, base of  the skull and the facial bones with deformity. He found that anatomical  continuity was lost in the frontal region of the skull. There was extra  vassation in the right mastoid and right side of ausopotil region. He found a  perforating injury to the vault and partly particularly separated base  fractured in anterior cranial fossa and right occipital bone. The brain matter  was lacerated and the fractured fragments were embodied in brain material  involving frontoparietal lobes on both sides, with subdural haemorrhage all  over the brain surface, brain stem and cerebellum. Blood clots were present.

13.     Apart from the aforesaid internal and external injuries the doctor who  performed the post mortem i.e. (PW8) Ajay Keoliya, noted that reddish  chilli powder like material was found over the chest of the deceased. He  opined that the cause of death was "perforating chop wounds over head and  face, associated with fracture, skull, facial bone and cerebral laceration."

14.    On 17.9.1999 accused No.1 Sharad disclosed that he had parked a  two-wheeler Bajaj M-80 vehicle bearing No.MH-13-C-4157 on the rear side  of the Girls’ school at Vairale. The said vehicle was seized under a  panchanama in the presence of two panchas, of which (PW2) Dipak was one  of the panchas.  It was the prosecution case that this vehicle had been used  by the accused to flee from the scene of the offence. On 17.9.1999 PW3  Avinash and Vilas Sawant came to the police station and as their clothes  were found to be blood stained, they were seized by PW11 PSI Kendre  under a panchanama (Exh.26). On 17.9.1999 PSI Kendre recorded the  statement of Dipak PW2.  On 18.9.1999 PSI Kendre recorded the statements  of several additional witnesses.  Accused No.3 Shashikant was accosted by  the police and was produced before him. PSI Kendre arrested accused No.3  and seized his blood stains clothes under a panchanama (Exh.28) in the  presence of panchas, one amongst whom was PW 6 Rameshwar.

15.     On 19.9.1999 accused No.3 disclosed that he had hidden certain  weapons under a heap of stones near the well of the field of one Nandkumar  within the boundary of village Ladole.  Thereafter the police party alongwith  accused No.3 proceeded to the spot disclosed by accused No.3 and  discovered two Satturs kept hidden in a heap of stones.  These two Satturs  were articles-25 & 26 produced before the Court. The aforesaid two Satturs  were seized under a panchanama (Exh.40) in the presence of two panchas,  one of whom was PW9 Bhau Pawar.   It may be mentioned at this stage that  PW9 did not support the prosecution case and therefore, this panchanama  had to be proved by the prosecution through the evidence of the  Investigating officer. It was found at the time of the seizure of the weapons  that the handles of these weapons were blood stained.  

16.     On 22.9.1999 the Investigating Officer PSI Kendre sent all the  accused to the primary health centre for collection of their blood samples.

17.     On 27.9.1999, under his covering letter dated 23.9.1999, 25 articles  seized during the investigation were sent by the Investigating officer to the  Regional Forensic Science Laboratory for a Chemical Analyser’s report. In  the meanwhile, the forensic medical department of the V.M.Medical college  had also sent the red chilli powder like substance for analysis to the Regional  Forensic Laboratory. The blood sample of the accused and deceased were  also sent for analysis to the said laboratory. In due course, the Investigating  officer received C.A. reports in respect of all the articles sent. Two reports  dated 31.1.2000 indicated the finding of the C.A. on the 25 articles and his

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further finding that the red powder found on the chest of the deceased was in  fact chilli (capsicum) powder.

18.     The Investigating officer had in the meanwhile, received the post  mortem report. He collected the certified copy of the plaint & complaint in  the litigation pending between the parties. Exh.52 was the certified copy of  the plaint in RCS No.204/93 and Exh.53 was a certified copy of the  complaint filed by deceased Sukhdeo against accused No.1, accused No.3  and one of their brothers Rajendra. He also collected a copy of the map of  measurement in respect of the disputed land made by TILR and a copy of  the sale deed executed on 16.9.1999 between Shankar Chikane and Sopan  Machale.

19.     Ultimately on completion of his investigation, PW 11 PSI Rajkumar  Kendre filed the charge-sheet.  

20.     At the trial, the Sessions Judge framed charges against the accused for  committing offences punishable under Section 302 read with 34 of IPC and  under Section 37(i) read with section 135 of the Bombay Police Act. The  accused pleaded not guilty to the charges. In order to prove their case the  prosecution examined as many as 13 witnesses. On an application on behalf  of the accused, Police head-constable Abdul Shaikh was called and  examined as Court witness No.1. On behalf of the defence, two persons  claiming to be eyewitnesses were examined.  They were DW1 Shridhar and  DW2 Tayyab Pathan. After recording the statements of all the three accused  under Section 313 of Cr.P.C. and hearing the arguments of both the sides,  the IInd Additional Sessions Judge, Solapur passed his Judgment and order,  convicting accused No.1 Sharad and acquitting accused No.2 and accused  No.3, as aforesaid.

21.     As already stated above, before the High Court accused No. 1 Sharad  Chikane filed an appeal against his conviction, and the State Government  filed an appeal against the acquittal of accused Nos. 2 and 3.  The High  Court found all the three accused guilty under Section 302/34 IPC and  imposed life imprisonment on all three along with fine, as already mentioned  above.

22.     It may be noted that in the FIR all the three accused have been named  as the assailants and this version is corroborated by the testimony of PW1,  Vikram Chikane as well as PW3, Avinash Chikane.  They all stated that  accused No. 1 Sharad Chikane attacked Sukhdeo Chikane on his head and  thereafter all the three accused attacked him on his head with a Sattur, which  is scythe like iron instrument used for cutting sugarcane.  Thus the evidence  of PW1 and PW3 is consistent with each other, and also with the F.I.R.

23.     The port mortem on Sukhdeo shows as many as seven injuries, as  already mentioned above.  Most of the injuries were on vital parts of the  body, i.e. on the head or the neck.   Thus, the medical evidence corroborates  the testimony of the eyewitnesses Vikram Chikane and Avinash Chikane.

24.     Learned counsel for the appellant submitted that the evidence of PW2,  Dipak Chikane is inconsistent with the testimony of PW1 & PW3.  He  submitted that PW2 Dipak Chikane’s testimony discloses that a firearm  (pistol) was fired on Sukhdeo, but there are no gunshot injuries on the body  of Sukhdeo.  However, a perusal of testimony of PW2 shows that he was not  an eyewitness at all, and he mentioned that Vilas Sawant had informed him  that accused No. 1 Sharad Chikane had injured Sukhdeo by means of a  Sattur and members of the staff of the Civil Hospital, where the injured was  taken, opined that Sukhdeo was fired by a pistol.  Thus, Dipak’s evidence  regarding the incident is only hearsay and no value can be attached to the  same.  However, this does not detract or discredit the testimony of PW1 and  PW3 which is consistent with the F.I.R. version and with each other.

25.     Learned counsel for the appellant then referred to the evidence of  defence witness Shridhar Machale (DW1), and he submitted that this is in

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conflict with the testimony of PW1 and PW3.

26.     We have gone through the evidence of DW1 Shridhar Machale and  find that it is not reliable at all inasmuch as in his cross-examination he  stated  that he did not lodge any complaint in writing to any authority  informing the facts which he had deposed.  He did not also make a  complaint to anybody that the accused were falsely implicated in the case.   He has mentioned that he came to know that the accused persons had been  arrested for committing the murder of Sukhdeo.  If he was really of the  opinion that these accused had been falsely implicated he would normally  have informed the Police and and/or other persons about it.  The fact that he  did not do so belies his testimony.     For the same reason we also reject the  testimony of DW2, Tayyab Pathan.  

27.     A perusal of the testimony of PW11 Rajkumar Kendre, the Police  Sub-Inspector at the Vairag Police Station shows that a Police report was  lodged promptly and all actions were taken soon after the incident.  This  witness had seen lot of blood on the spot and two pieces of brain and skull  and other articles.  He had prepared spot Panchnama in the presence of  panchwitnesses.  He had collected blood-stained soil and simple soil etc.  from the place of the incident.  The Sub-Inspector then arrested the accused,  Sharad Chikane and Rajendra Chikane who had blood-stained clothes.   Accused Shashikant Chikane was interrogated in the presence of  panchwitnesses and he volunteered to discover the weapon used at the time  of the offence which was kept under a heap of stones near the well of a field.   He volunteered to accompany the Police to point out the same. Thereafter  accused Shashikant Chikane, Rajkumar Kendre (PW11) and Police staff and  panchwitnesses sat on the Jeep and went to the spot where accused  Shashikant Chikane took out two Satturs kept hidden under a heap of stones.           28.     We see no reason to disbelieve the evidence of PW11, the Police Sub- Inspector.  We also find the evidence of PW1 Vikram and PW3 Avinash as  credible.  The prosecution has thus proved the guilt of the accused beyond  reasonable doubt.   

29.     For the reasons aforementioned, there is no merit in these appeals  which are dismissed accordingly.  If the appellants are on bail, the bail bonds  shall stand discharged and they should be taken into custody forthwith to  serve out the sentence.