A.M. Badar, J. -
(1.) By these appeals, appellants/convicted original accused Nos. 1 to 6 are challenging judgment and order dated 11.11.2010 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No.234 of 2008, thereby convicting them of offence punishable under sections 147, 148 and 302 read with section 149 of the Indian Penal Code. For offences punishable under section 147 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for one year and for offence punishable under section 148 of the Indian Penal Code, they are sentenced to suffer rigorous imprisonment for two years. For offence punishable under section 302 read with section 149 of the Indian Penal code, appellants/original accused Nos. 1 to 6 are sentenced to suffer imprisonment for life and to pay fine of Rs.1000/each and in default to undergo further rigorous imprisonment for six months by each of them.
(2.) Briefly stated, the prosecution case and background facts are thus :
a) Pradeep Ganpat Shinde (since deceased) was residing at Shinde Wada located at Shukrawar Peth, Pune. His sister P.W. 2 Kalyani Bajrang Khillare is also resident of Shinde Wada. Acquitted accused No. 8 Bhau alias Ravindra Chavan and acquitted accused No. 9 Balkrishna Chavan are maternal uncles of appellant/accused No. 1 Sameer More. They are also resident of Shinde Wada. Rest of appellants/accused Nos. 2 to 6 are stated to be friends of appellant/accused No.1 Sameer More. It is case of prosecution that appellant/accused No.1 Sameer More and his friends appellant/accused Nos. 2 to 6 used to visit the house of acquitted accused No. 8 Bhau @ Ravindra and acquitted accused No. 9 Balkrishna Chavan at Shinde Wada, Shukrawar Peth, Pune. Shinde Wada is stated to be containing 81 tenements occupied by different families including those of deceased Pradeep Shinde, P.W.2 Kalyani Khillare, acquitted accused No.8 Bhau alias Ravindra Chavan and acquitted accused no. 9 Balkrishna Chavan.
b) In the last week of May, 2007 as well as on 06.09.2007 there was a quarrel between appellant/accused No.1 Sameer More and his associates on one side and deceased Pradeep Shinde on other side. This has resulted in lodging reports with Khadak Police Station. This enmity of appellant/accused No. 1 Sameer More and his associates with deceased Pradeep More is stated to be motive behind the crime in question.
c) The incident of murderous assault on Pradeep Shinde took place at about 8.30 p.m. of 08.10.2007 at populous locality of Pune. According to the prosecution case, Pradeep Shinde (since deceased) was standing near Bafna Petrol Pump at Shukrawar Peth, Pune. At that time P.W.17 Vinod Kad was also stated to be present at that place. All of a sudden, armed with deadly weapons, appellant/accused No.1 Sameer More, appellant/accused No.2 Ganesh Mane, appellant/accused No.3 Nilesh, appellant/accused No.4 Pravin Chorge, appellant/accused No.5 Shailesh Dhage, appellant/accused No.6 Ajit Ghanekar along with juvenile in conflict with law Santosh Khandke rushed on person of Pradeep Shinde. Appellant/accused persons were successful in giving one blow of a sharp edged weapon on head of Pradeep shinde at that place. For rescuing himself Pradeep Shinde started running towards a lane adjacent to Pritam Hotel. He was chased by appellants/accused, who were successful in accosting him in the lane, opposite to Bafna Petrol Pump. All appellants/accused assaulted Pradeep Shinde by means of sword, knives, chopper etc. Resultantly, Pradeep Shinde collapsed with several bleeding injuries on his person and died on the spot.
d) According to the prosecution case P.W.2 Kalpana Khillaresister of deceased Pradeep Shinde was returning from the market after purchasing vegetables. At that time the incident is stated to have happened in presence of P.W.2 Kalpana Khillare. P.W.6 Hemant Lele was returning to his office, which was near the Bafna Petrol Pump. Upon seeing Pradeep Shinde lying in injured condition in a pool of blood, he intimated this fact telephonically to Khadak Police Station. This information recording was recorded in the station diary (Exh.34).
e) P.W.13 Dnyandeo Bhalsing, A.P.I. with Khadak Police Station along with his staff immediately rushed to the spot of incident. He found P.W.2 Kalpana weeping near Pradeep Shinde, who was lying in the lane. She was then sent to Phadgate Police Outpost with Police Naik Polekar for lodging the F.I.R. P.W. 12 Rajendra Vaibhandik, A.P.I. was in-charge of Phadgate Police Outpost. He then recorded the F.I.R. (Exh.79) lodged by P.W.2 Kalpana Khillare and accordingly Crime No. 272 of 2007 for offences punishable under sections 143, 147, 148, 149, 302, 120B, 201 of the Indian Penal Code, under section 37 read with section 135 of the Bombay Police Act and under section 4 read with section 25 of the Arms Act came to be registered against appellants/accused at Khadak Police Station. The Wheels of investigation were then set in motion.
f) P.W. 13 Dnyandeo Bhalsing, A.P.I. recorded spot panchanama (Exh.72). He sent Pradeep Shinde to Sasoon Hospital, where he was declared dead. Inquest panchanama was drawn and dead body was sent for autopsy. Immediately on the very next day i.e. on 09.10.2007 all appellants/ accused came to be arrested and their bloodstained clothes were seized by effecting panchanamas. During the investigation, on the basis of confessional statements of appellants/accused, bloodstained weapons of the offence came to be seized. On completion of investigation, charge-sheet came to be filed against appellants and other accused persons.
g) On committal of the case, the learned Additional Sessions Judge framed charges under various sections of the Indian Penal Code, the Bombay Police Act and the Arms Act against accused persons. They abjured the guilt and claimed trial.
h) In order to bring home the guilt to accused persons, the prosecution has examined in all 17 witnesses. They can be categorized as eye witnesses, panch witnesses and official witnesses who examined accused persons, conducted autopsy on dead body of Pradeep Shinde and investigated the crime. P.W.2 Kalyani Khillaresister of the deceased, P.W.3 Deepak Pawarcashier of Bafna Petrol Pump, P.W.4 Rajaram Salvi, P.W.5 Sanjay Pawar (both servants at Bafna Petrol Pump), P.W.6 Hemant Lele, P.W.8 Nitin Shinde Salesman present near the spot and P.W.17 Vinod Kadfriend of the deceased Pradeep were stated to be eye witness to the incident in question. However, except P.W.2 Kalyani Khillare and to some extent P.W.6 Hemant Lele, none of these alleged eye witnesses supported the case of the prosecution. Panch witnesses such as P.W.7 Namdeo Kunjir, P.W.9 Vishal Dongare and P.W.10 Suryakant Salunkhe also turned hostile to the prosecution. P.W.11 Dr. Kishor Pedgaonkar had examined the appellant/accused No. 2 Ganesh Mane and appellant/accused No.6 Ajit Ghanekar immediately after their arrest on 09.10.2007 and had issued injury certificates (Exh.110 and Exh.111) certifying injuries found on their palm. P.W.14 Dr. Ganesh Poojary had conducted postmortem examination on dead body of Pradeep Shinde on 09.10.2007. P.W.12 Rajendra Vaibhandik, A.P.I., P.W.13 Dnyandeo Bhalsing, A.P.I., P.W.15 Nandkumar Suryawanshi, P.I. and P.W.16 Chandrakant Sagale, the then Police Inspector had invested the crime in question.
i) The defence of appellants/accused was that of total denial. They had filed their written statements contending that they are falsely implicated in the crime in question.
j) After hearing both the parties, the learned Additional Sessions Judge was pleaded to hold appellants/accused guilty of offence punishable under section 147, 148 and 302 read with section 149 of the Indian Penal Code and accordingly they were sentenced as indicated in the opening para of this judgment.
(3.) We have heard S/Shree Pasbola, Shejpal and Khamkar, learned Counsel appearing for appellants/accused in both these appeals at sufficient length of time. It was argued by the learned Counsel for appellants that P.W.2 Kalyani Khillare is a sole witness on whose statement the learned Trial Court has returned the finding of guilt against appellant/accused. She is an interested witness having inimical disposition against appellants/accused. It is argued that P.W.2 Kalpana Khillare is a chance witness and her version is totally unbelievable because she claims to be present at Bafna Petrol Pump while returning to her house at Shinde Wada after purchasing vegetables but evidence on record shows that Bafna Petrol Pump is not on the way from Shinde Wada to Phule Mandai (Market) of Pune. The conduct of P.W.2 Kalyani in not rushing to her house, not going near her injured brother, absence of blood on her clothes makes her unbelievable witness. She is a tutored witness as she claimed to have identified the appellants/accused though the house of maternal uncle of appellants/accused No.1 is not visible from her house at Shinde Wada. The presence of P.W.2 Kalyani on the spot is not properly explained and she being an interested witness, false implication of appellants/accused cannot be ruled out. In support of these contentions, reliance is placed on Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719 and Harjinder Singh alias Bhola v. State of Punjab, 2004 CRI.L.J. 3854 (S.C.) .;