Factual aspect
Appeal against conviction confirmed by the Hon’ble High Court
2. The appellant Tanaji in Criminal Appeal No. 1145 of 2011 is accused no.9. The appellants Ratu, Satu and Maruti in Criminal Appeal arising out of Special Leave Petition (Crl.) No. 3385 of 2012 are accused nos. 1, 2 and 5, respectively. There were a total of 9 accused. The trial court acquitted the accused no. 4. The rest of them were convicted. The trial court convicted the appellants for the offences punishable under Sections 148 and 302 read with Section 149 of the Indian Penal Code (for short, ‘the IPC’). The appellants were sentenced to undergo life imprisonment. The High Court confirmed their conviction vide judgment dated 24th September 2010.
Bail
3. As far as accused no.9 is concerned, this Court ordered him to be released on bail by order dated 10th May 2011. However, accused nos. 1, 2 and 5 were not granted the benefit of bail by this Court. Their prayer for bail was rejected by orders dated 19th March 2013 and 11th April 2014. We have been informed across the Bar that accused nos.1, 2 and 5 have undergone the entire sentence and have been released.
Anlaysis
Consideration of submissions
8. We have perused the evidence of the material prosecution witnesses. The version of PW-1 about the incident reads thus:
“The incident took place on 18.07.2001 at about 10.15 a.m. to 10.30 a.m. At that time, I was taking meals in my house. On the day of incident, I attended the school at about 7.30 a.m. I attended one lecture and returned to the house. At that time, my mother was fetching the water from the hand pump. She had carried two pitchers to bring the third pitcher from the hand pump. The hand pump is installed at a distance of 300 ft. at the eastern side of my house. I heard big shout of my mother. I came running from my house by leaving the food. At that time my mother was shouting loudly and she was uttering the words that Ratu Kale, Satu Kale, Shankar Kale, Bhayaji Kale, Maruti Shinde, Sahadeo Kale, Dharma Hake were beating my uncle. I proceeded towards the spot where the said persons were beating my uncle. I was standing at a distance of 30 ft from the distance of the incident. I had seen that all the accused were giving blow of swords to my uncle. I again say that Ratu Kale, Satu Kale, Shankar Kale, Bhayyaji Kale, Maruti Shinde Sahadeo Kale, Dharma Hake were beating my uncle by swords. On his shoulder, on both the wrists, on knees. I was using the went Aba to my uncle Murlidhar. My mother was also running towards the house of my uncle. I requested the said persons not to beat my uncle. But Ratu Kale, accused Dharma and Shankar came to my direction alongwith the swords in their hands in order to assault me. I started running towards the house of Bhayyaji Vhanemane. Thereafter, I was standing near the open space adjacent to the house of Bhayyaji Vhanmane. At that time, Bajrang Dhedgade was gazing his cattles. I told him to request the said persons not to beat my uncle. Bajrang Dhaigade proceeded towards the spot and told the said persons not to beat my uncle. But Ratu Kale, Maruti and Bhayyaji come towards his direction alongwith the swords in their hand. Shamrao Kale was standing at some distance alongwith stick in his hand and he was instigating the accused to beat my uncle and not to rescue him. At the same time, accused Tanaji Kali came on his bullet motor cycle. He parked his vehicle behind the house of Murlidhar, on the road. He came running towards the spot of incident. He told to the assailants why they are beating him like a women. He took the sword from the hand of his brother Ratu kale and he started giving blows of sword hastily on the right knee of Murlidhar.”
Witness omitted to mention that after attending one class he came to the house on the date of incident is not material omission
9. After carefully perusing the cross-examination, we find no material omissions or contradictions have been brought on record regarding the role ascribed to the appellants. The only omission brought on record is that the statement of the witness recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’) does not mention that after attending one class, he came to the house on the date of the incident. We do not think that this omission is so relevant as to amount to contradiction as provided in the explanation to Section 162 of CrPC.
Witness omitted to mention the use of sword is an omission but the statement he saw the accused assaulting the deceased is not omission
10. As far as PW-2 is concerned, his version in the examination-in-chief is same as what is stated by PW-1. He claimed that he stated before the police that the accused were assaulting the deceased by sword. However, the statement regarding the use of the sword is an omission. The statement that he saw the accused assaulting the deceased is not an omission. There are no material omissions or contradictions brought on record as far as this witness is concerned.
Conduct of the witness is natural
11. PW-5’s version about the role played by the appellants is similar to the version of PWs-1 and 2. It is true that PW-5 has not ascribed any role to accused no.9- Tanaji. The explanation for that is in the examination-inchief of PW-5 herself. She stated that after she saw accused nos. 1 to 7 beating the deceased, she started running towards her house. Therefore, even before accused no.9-Tanaji arrived on the scene, the present appellant had left the scene of the offence.
Alibi not proved
12. Regarding evidence of PW-10, Vasant Zunjare, P.I., his version is that from 18th July to 19th July 2001, some important duty was assigned to the accused no.9 Tanaji. The witness admitted that accused Tanaji was not in the police station on those two days. The accused no.9 has not adduced evidence to show that he was elsewhere when the incident occurred. Therefore, the accused no.9 Tanaji’s alibi plea cannot be accepted.
Acquittal of other accused on alibi is of no use for other accused
13. Hence, the testimony of PWs-1, 2 and 5 as regards the role ascribed to the accused nos.1 to 7, is trustworthy. The testimony of PWs-1 and 2 on the role ascribed to the accused no.9 is also reliable. The accused no.4 was acquitted by the trial court as he proved the defence of alibi. Hence, the acquittal of the accused no.4 is of no help to the other accused.
Appreciation of eye-witness
14. It is true that there may be other eye witnesses who were not examined. But PW-2 is not a witness who was related in any manner to the deceased. He had no enmity against the accused. As the evidence of the three eye witnesses is of sterling quality, the failure to examine the other alleged eye witnesses will not be fatal for the prosecution case.
15. Therefore, there is no merit in the appeals. The appeals are dismissed. We direct the accused no. 9-Tanaji Shamrao Kale, to surrender within one month from today to undergo the remaining sentence. If accused nos.1, 2 and 5, who have challenged the impugned judgment, have already undergone the sentence and have been released, the question of the said accused (appellants in Criminal Appeal arising out of Special Leave Petition being taken to custody will not arise. However, if they have not been released after undergoing the sentence, they must undergo the remaining sentence.
Party
Tanaji Shamrao Kale – State of Maharashtra – Criminal Appeal No. 1145 of 2011 and Criminal Appeal No. 1160 of 2025 (Arising out of Special Leave Petition (Crl.) No. 3385 of 2012) – 2025 INSC 323 – March 5, 2025
