Full Judgment Text
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Appeal 207 of 2003.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 207 OF 2003
The State of Maharashtra,
Through Police Station,
Ghansawangi, Tq. Ghansawangi,
District Jalna. ... APPELLANT
(Ori. Complainant)
V E R S U S
1. Ganesh s/o Vitthal Pawar,
Age 25 years, Occu. Labourer,
R/o. Borranjani, Taluka
Ghansawangi, Dist. Jalna.
2. Pandurang s/o Vasant Pawar,
Age 22 yeas, Occu. Labourer,
R/o. Deotali Tanda, Taluka
Ghansawangi, Dist. Jalna.
3. Bhimrao s/o Vitthal Pawar,
Age 30 years, Occu. Labourer,
R/o. Borranjani, Taluka
Ghansawangi, Dist. Jalna.
4. Achyut s/o Vitthal Pawar,
Age 38 years, Occu. Labourer,
R/o. Bor Ranjani, Taluka
Ghansawangi, Dist. Jalna. ... RESPONDENT
(Ori. Accused)
...
Mr. M. M. Nerlikar, APP for Appellant / State.
Mr. Joydeep Chatterji, Advocate for Respondents / Accused.
...
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CORAM : T. V. NALAWADE &
K. L. WADANE, JJ.
st
DATE : 21 June, 2018.
JUDGMENT: ( Per T. V. Nalawade, J. )
. The appeal is filed by the State against the judgment and
order of Sessions Case No.247 of 2001, which was pending in the
Court of IInd Additional Sessions Judge, Jalna. All the Respondents
are acquitted by the Trial Court of the offence punishable under
Section 302 read with 34 of the Indian Penal Code. During the
pendency of present appeal, Respondent No.4 died, the appeal
against him needs to be abated and so the appeal against the
remaining three Respondents is heard.
2 In short, the facts leading to institution of the appeal can
be stated as follows:
Deceased Govind Pawar, was the husband of a sister of first
informant Kundlik Rathod. Deceased was resident of Deoli Tanda,
Tahsil Ghansawangi, District Jalna and first informant also hails from
the same village. All the accused persons are residents of the same
village. The relations between deceased and accused persons were
strained as in the past a criminal case was filed against accused
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persons in respect of assault made on the deceased by Accused No.3
Bhima and others. Bhima had insisted that Govind should withdraw
the case against him, but Govind had not withdrawn the case. Bhima
and other persons in that case were acquitted. After the decision of
acquittal, Bhima had given threat to Govind to teach him lesson.
Accused Nos.1, 3 and 4 are real brothers interse and Accused No.2 is
cousin of Accused No.1.
th
3 The incident in question took place on 29 July, 2001,
which was Sunday and weekly Bazar day of Paradgaon. Deceased
Govind, first informant and Seva Chavan had gone to Paradgaon for
Bazar. They were returning from Paradgaon to Deoli Tanda and
when they were present in one lane of Paradgaon, from the back side
all the four accused came running and they intercepted these
persons. During the incident, Accused No.4 Achyut and Accused
No.2 Pandurang held Govind and then Accused No.1 Ganesh gave
blows of Jambia (dragger) on the back and abdomen of Govind.
Govind sustained bleeding injuries and he collapsed on the ground.
After that Bhima gave kick blows to Govind.
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4 Kundlik and Seva Chavan tried to intervene by requesting
the accused not to assault Govind, but Ganesh said that they were
there to finish Govind. Then, Kundlik used force and snatched
Jambia from the hand of Ganesh. When Kundlik snatched Jambia,
Ganesh sustained bleeding injury to his hand. There was hue and cry
and the people of that lane started gathering. All the four accused
then ran away.
5 Kundlik shifted Govind in one four wheeler to Ranjani
Government Hospital. Some persons including Seva Chavan helped
him. Seva Chavan was sent to village to give news. Police had
already reached the hospital and from there Govind was shifted to
Government Hospital, Jalna and then to Government Hospital,
Aurangabad. Govind had become unconscious. First informant,
Police Patil of the village, Sudam, widow of Govind and others shifted
Govind to Civil Hospital, Aurangabad in a vehicle and they remained
in his company. After admitting Govind in the Government Hospital,
first informant, Police Patil and one more person went to
Ghansawangi Police Station to give report. Jambia, which the first
informant had snatched from the hand of Ganesh was with the first
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informant and he produced Jambia before Police. He took the names
of all the four accused and he described the aforesaid incident to the
Police. Crime at C.R.No.66 of 2001 came to be registered in
Ghansawangi Police Station for the offences punishable under
Sections 307 and 323 read with 34 of the Indian Penal Code at 07:30
th
am on 30 July, 2001.
6 During the course of investigation, Police prepared
Panchanama of spot where the incident had taken place and also
recorded the statements of eye witnesses and other persons. Jambia
was taken over. Govind succumbed to injuries sustained in the
incident and postmortem was conducted on his dead body. So many
injuries caused by the sharp weapon were found on the dead body
and doctor gave opinion that the death took place due to injuries
caused by sharp weapon like Jambia, which was taken over by the
Police in the matter. Articles taken over were sent to CA office.
Blood was detected on the earth sample collected from the spot of
offence and also on Jambia (dragger). Chargesheet was filed
against all the four accused for the offence punishable under Section
302 read with 34 of the Indian Penal Code. Charge was framed for
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this offence. All the accused pleaded not guilty. Prosecution
examined in all eight witnesses. The Trial Court has not believed the
prosecution evidence and acquittal is given in favour of all the four
accused.
7 At the time of considering the evidence given by the
prosecution, it needs to be kept in mind that Accused No.1 Ganesh is
not disputing that he was present on the spot at the relevant time. He
has contended that he had also sustained injuries. The admitted
record, injury certificate is at Exhibit 20 and it shows that he sustained
one incised would on right palm and one incised wound over left index
finger. These injuries were caused by sharp weapon and they were
caused within six hours prior to the examination. Admitted document
th
at Exhibit 20 shows that Accused No.1 was examined on 29 July,
2001 at 05:00 pm when the incident had taken place on that day in
noon time. There is statement given by Accused No.1 under Section
313 of the Code of Criminal Procedure also. Thus, Accused No.1 had
admitted his presence on the spot and involvement in the incident.
He had admitted that there was scuffle between him and deceased
Govind. There is no such material against the remaining accused
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persons. These circumstances are not considered by the Trial Court.
The defence of Accused No.1 that he had snatched the dragger from
the hand of deceased is falsified by circumstance of production of
dragger by PW1. The provisions of Sections 18 and 58 of Evidence
Act are virtually ignored by the Trial Court. It is the duty of Court to
ascertain whether inference is possible on such admission.
8 Kundlik Rathod (PW1) has given evidence on motive.
He has given evidence that in the past, there was quarrel between
deceased Govind and the accused persons including Accused No.1
and during quarrel Bhima had assaulted Govind with axe. He has
deposed that a case was filed against Accused No.1 and Bhima and
they were asking him to withdraw the case. He has given evidence
that Govind was not ready to withdraw the case, but then Bhima and
other accused of that case were acquitted. He has given evidence
that after the decision of the case, accused Bhima had given threat to
Govind to teach him lesson. During the statement recorded under
Section 313 of the Code of Criminal Procedure, this part of evidence
was put to all the accused. Accused No.1 has admitted that there
was a case filed against him in respect of the aforesaid incident.
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9 Kundlik Rathod (PW1) has given evidence that after
about one month of the decision of previous case in favour of accused
persons, the incident in question took place and it took place in village
Paradgaon. He has given evidence that he, witness Seva and
deceased Govind were returning to their village from Paradgaon. He
has deposed that Accused Nos.1 to 4 followed them and then
accused Pandurang and Achyut held Govind in the incident and
Ganesh gave blows of dragger on the person of Govind. He has
given evidence that many blows were given and Govind collapsed on
the ground. He has given evidence against Bhima that Bhima gave
stick blows to Govind and he snatched the dragger from the hand of
Ganesh and during that attempt Ganesh sustained injuries to his
hand. He has given evidence that there was hue and cry and then
accused persons ran away from the spot. He has given evidence that
he shifted Govind to Hospital of Ranjani and from there Govind was
shifted to Civil Hospital of Jalna and from hospital of Jalna, they
shifted Govind to Government Hospital, Aurangabad. He has given
evidence that after admitting Govind in Aurangabad Government
Hospital, he went to Ghansawangi Police Station to lodge the report
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and the report at Exhibit 28 was given by him. He has given evidence
that the dragger, which was produced in the Court, was snatched by
him from the hand of Ganesh and it was produced before Police. He
has given evidence that when Police prepared spot Panchanama,
spot was shown by him and he produced his clothes before the Police
as there were blood stains on the clothes, article 5 and article 6.
10 The FIR at Exhibit 28 is consistent on material points with
the oral version given in the Court by Kundlik Rathod (PW1). There
is only one exaggeration. In FIR, he had not mentioned that Bhima
had assaulted the deceased by using stick. On this evidence, witness
was crossexamined. During crossexamination, he admitted that
Bhima had not assaulted Govind by using stick. Thus, the evidence
as against Bhima that he used stick cannot be used against Bhima.
Further, postmortem report, which this Court is considering at later
stage, does not show that any injury was caused due to the weapon
like stick. Thus, there is corroboration of FIR to oral evidence given
against Ganesh.
11 Seva Chavan (PW6) is examined as eye witness by
Police and his name is mentioned in FIR as eye witness. He is from
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village Deoli Tanda, Tahsil Ghansawangi. He has given evidence that
he knew deceased Govind and all the accused from prior to the day of
incident. He has given evidence that on the day of incident, he and
Kundlik were in the company of Govind and at about 04:00 pm they
were returning from Paradgaon. He has deposed that he noticed that
when Govind was behind him, incident started and he looked back as
there was shouting. He has given evidence that in the incident
accused Pandurang and accused Achyut held Govind and Ganesh
assaulted Govind by using dragger. He has given evidence that
Bhima gave kick blows to Govind. He has given evidence that in the
incident Kundlik snatched dragger from the hand of Ganesh and in
that incident, Ganesh received injuries to his right hand. He has given
evidence that after the incident, due to request made by Kundlik, he
went to the village to give message.
12 The evidence of Seva Chavan (PW6) remained
unshattered during his extensive crossexamination. It is true that his
evidence does not show that he intervened in the indent to save
Govind, but that does not mean that he was not present on the spot.
It can be said that there is possibility of exaggeration and this witness
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was at some distance from Govind and he paid attention to backside
when incident started and he had virtually no time to intervene in the
incident. There are other circumstances showing that the widow of
Govind and other persons of the village including Police Patil came to
Primary Health Center, Ranjani. The evidence is given by this
witness that it is he who went to village and gave news about the
incident. The tenor of crossexamination of this witness shows that
his presence on the spot is not disputed. On the contrary, it is
suggested to him that during the incident Govind was trying to finish
Ganesh and due to that the scuffle took place and in the scuffle
Govind sustained injury due to article 1. It is suggested to him that
except Ganesh, no other accused was present on the spot at the time
of incident. The tenor of crossexamination of Kundlik (PW1) is
similar. Thus, the presence of Kundlik is also not disputed. As there
are aforesaid circumstances and as there is name of Seva (PW6) in
FIR, no doubt is created about the version of Seva that the injuries,
which were found on the dead body of Govind, were inflicted by
accused Ganesh.
13 Jagannath Pawar (PW4) is resident of Deoli Tanda and
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he is also examined as eye witness. He has deposed that he had
seen Govind, Kundlik and Seva together near Grampanchayat Office,
Paradgaon and he had also seen the accused persons in village
Paradgaon. He has given evidence that he was present in the vicinity
of village Panchayat office and when he heard shouting, he rushed to
the spot. He has given evidence on incident, which is similar to the
evidence given by aforesaid eye witnesses. His evidence is also
mainly against accused Ganesh that Ganesh assaulted Govind by
using dragger and then Govind collapsed on the ground. He has
given evidence that in his presence Kundlik snatched dragger from
the hand of Ganesh and then accused ran away. Evidence of this
witness shows that he knew Govind and accused persons prior to the
date of incident. His evidence shows that he remained with Govind
when Govind was first shifted to Primary Health Center Ranjani, then
Civil Hospital, Jalna and then to Civil Hospital, Aurangabad. He has
given evidence on motive also, which is similar to the evidence given
by PW1.
14 The tenor of crossexamination of Jagannath (PW4) also
shows that the defence has not disputed that he had gone to Primary
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Health Center, Ranjani. Some omissions in relation to previous
statement of this witness are proved and they are in respect of
evidence given against accused Bhima by this witness. Nothing is
brought on record to create probability that this witness has any
reason to give false evidence against the accused persons. There is
clear suggestion given to him in the crossexamination that in the
incident Govind was attempting to finish Ganesh by using article 1,
but Ganesh had scuffle with Govind and in the scuffle Govind
sustained injuries. The suggestion about scuffle is denied by this
witness, but the facts remained that the defence did not dispute that
this witness was present on the spot at the relevant time.
15 The prosecution examined one more eye witness namely
Syed Qudratali Osmanali (PW5). He has given evidence, which is
similar to the evidence of PW1 and other witnesses. Though he is
not named in the FIR, he is resident of Ranjani Tahsil Ghansawangi.
He has given evidence that he was at Paradgaon and he had seen
both deceased and accused in village Paradgaon at 04:00 pm.
Incident took place near village Panchayat and so his evidence is
important. He has given evidence against Ganesh that Ganesh
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assaulted Govind by using knife. Though he has given evidence
against Bhima that Bhima had given kick blows, as injuries caused by
other weapon were not found on the dead body and as there is
possibility of exaggeration, there is no need to discuss the evidence of
this witness also as against Bhima. He has given evidence on motive
also and his evidence shows that he knew deceased and Ganesh
from prior to the day of incident.
16 Other witness like Ramesh Pawar (PW2) has given
evidence on the disclosure made about the incident by Govind in
Ranjani Hospital. There is no medical record to show that Govind
was conscious when he was taken to Ranjani Primary Health Center.
This Court holds that the evidence given by this witness on the dying
declaration of Govind is not that convincing. Police statement was
th
recorded on 30 July, 2001. However, other evidence of this witness,
which is on disclosure made by Kundlik to him is there. In any case
when there is evidence of eye witness, even if evidence of Ramesh
(PW2) is ignored, that cannot go to the root of the case of
prosecution.
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17 The evidence of Police Inspector, Pandharinath Bhosale
(PW8) shows that he had made attempt to see that the dying
declaration of Govind is recorded, but his version shows that no such
dying declaration could be recorded. His evidence shows that Police
had referred Accused No.1 Ganesh to Civil Hospital, Jalna from
Primary Health Center Ghansawangi for treatment. The record shows
that Ganesh was not arrested immediately and he could be arrested
st
on 1 August, 2001. Injury certificate at Exhibit 20, which is already
described shows that Ganesh was referred by Ghansawangi Police
th th
Station for medical examination on 29 July, 2001. Thus, on 29 July,
2001, either accused Ganesh had approached police or police had
information against Ganesh about his involvement in the incident.
This circumstance is important in view of the nature of defence taken
by Ganesh in the present matter. Though such circumstance creates
probability of receiving specific information regarding commission of
crime and involvement of particular person as accused by police and
due to that, it can be inferred that the information of the nature of FIR
was received by Police, that circumstance cannot go to the rood of
prosecution case. Due to that circumstance, the FIR, which is proved
in the evidence of PW1 will not be available for the purpose of
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corroboration to the version of PW1. In the resent case, even if there
is no such corroboration and it is presumed that police had already
specific information of the nature of FIR prior to giving of report by
PW1, the other evidence is sufficient for basing conviction.
18 It is already observed that Accused No.1 has not disputed
his presence on the spot. The presence of most of the eye witnesses
on the spot at the relevant time is also not disputed. The evidence of
Pandharinath (PW8) shows that the clothes of Complainant were
taken over as there were blood stains on those clothes. Those
clothes were sent to CA office and blood was detected on those
clothes. Such circumstance gives corroboration to the version of eye
witnesses and it shows that the witness was present on the spot at
the relevant time. The evidence of spot of offence is not disputed and
that evidence also corroborates the versions of eye witnesses.
19 Dr. Sunil Jawale (PW7) conducted postmortem
th
examination on the dead body on 30 June, 2001. It appears that
Govind succumbed to injuries when he was unconscious and in the
th
Government Hospital in early hours on 30 June, 2001. Postmortem
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was conducted on the dead body on 30 June, 2001 between 02:00
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pm and 03:00 pm. Postmortem report is duly proved in the evidence
of Dr. Sunil Jawale (PW7) as Exhibit 19. The doctor found following
injuries on the dead body of Govind :
“1 Two incised wounds either side of chest IVth and Vth
I.C.S. margins sharp, oedematons, deep to the
thorasic cavity, No lungs parenchyma injured,
appeared to be a surgical intervention for drain out
the plural collection.
2 A stab injury over back, left infra scapular area, 7 x 3
cms. Tailing seen at one end. 5 cm deep, margins
sharp and incised, oedemations. Evidence of injured
lung parenchyma seen with injury to bronchioles.
The lung Parechyma is oedematons. Pleura incised
at the site.
3 Stab injury 7 x 3 cms over back, in the middle of
medial boarder of Rt.scapula, 5 cms deep tailing
seen at one end 5 cms deep. Margins sharp and
incised, oedemators, evidence of injured lung
parenchyma with injury to Bronchitons and pleura
seen.
4 A stab wound seen over abdomen, Lt.Lumbar
quadrant 5 x 3 cms one end tailing seen, margins
incised and clean cut 9 cms deep, injury to the
mesentry seen with contused appearance, small
intestine contused.”
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20 Dr. Sunil Jawale (PW7) has given evidence that all the
aforesaid injuries were antemortem in nature and these injuries are
sufficient to cause death in ordinary course of nature. The weapon
dragger, article 1 was shown to the doctor and the doctor has given
opinion that such weapon can cause the aforesaid injuries. This
witness was not crossexamined by the defence. It can be said that
the defence is not disputing that Govind died homicidal death and
aforesaid injuries caused the death.
21 The aforesaid discussion shows the following things:
a) There was motive for Accused No.1 Ganesh for the
crime.
b) Ganesh is admitting his presence on the spot at the
relevant time and also his involvement in the incident
by admitting that there was scuffle between him and
deceased Govind.
c) Ganesh is admitting that weapon dragger was used in
the incident.
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d) Ganesh is admitting that he sustained injuries to his
hand in the incident.
e) There is direct evidence of the witnesses, some of
whom are from other place. Both the witnesses
mentioned in the FIR supported the case of
prosecution. Their presence on the spot is not
disputed by the defence. There is also corroboration
of other circumstances to the evidence of witnesses
mentioned in the FIR. The statements of witnesses
th
were recorded on 30 July, 2001. The evidence
shows that the deceased was first shifted to Primary
Health Center, Ranjani, then to Civil Hospital, Jalna
and then Civil Hospital, Aurangabad and the first
informant was busy, he was in company of deceased
and so some delay was caused in giving FIR to the
police. After FIR Police could make proper
investigation.
th
f) Accused Ganesh was referred by Police on 29 July,
2001 for medical examination and Ganesh has
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admitted that he sustained injuries in the incident. His
explanation that he was trying to save himself is not
plausible as injuries on his hand were sustained due to
snatching of weapon and not due to assault.
g) Medical evidence is consistent with the evidence given
by the eye witnesses.
h) There is consistency in the evidence given by the eye
witnesses and there is corroboration of the
circumstantial evidence to the direct evidence.
22 The aforesaid material is not considered and appreciated
by the Trial Court atleast as against Accused No.1 Ganesh.
Considering the site of body of deceased where injuries were inflicted
on him and considering the site of body of accused where he
sustained the injuries, the Trial Court ought to have drawn proper
inference. The Trial Court ought to have considered the defence
taken by Ganesh at the time of appreciation of direct evidence and
ought to have come to the conclusion as to whether defence taken by
accused was probable in nature. This Court holds that the evidence
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given by the prosecution was more than sufficient to prove that it is
Ganesh who caused the aforesaid injuries intentionally to Govind.
Inference is also easy that there was intention to finish Govind.
Further, there is evidence of doctor that these injuries are sufficient in
ordinary course of nature to cause death. Thus, only one inference is
possible that it is murder and accused No.1 Ganesh murdered
Govind. This Court holds that the Trial Court has not properly
appreciated the material available under Section 3 of the Evidence
Act and the Trial Court did not properly appreciate the interpretation of
the term “proved” used in Section 3 of the Evidence Act. When there
is direct evidence of witness, whose presence on the spot is not
disputed and when there is circumstantial evidence falling under
Sections 6, 7 and 8 of the Evidence Act, very convincing reasons
need to be given for not believing such evidence. This Court holds
that the Trial Court has not considered the aforesaid material as
provided by the aforesaid provisions of the Evidence Act and the Trial
Court has committed serious error in giving decision of acquittal in
favour of Accused No.1 Ganesh.
23 It is true that four accused persons were shown to be
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involved in the matter and there was no circumstantial check to the
evidence given as against Accused Nos.2 to 4. It is also true that the
crime was registered late and prior to the registration of crime, there
was specific information atleast as against Ganesh. In such
circumstances, truth was easily separable. The evidence given as
against Accused Nos.2 to 4 could have been easily ignored and on
the basis of other evidence the Trial Court could have safely convicted
Accused No.1 for the offence of murder. Thus, interference is
warranted in the decision given by the Trial Court in favour of Ganesh.
In view of the nature of evidence and the reason for the incident, this
Court holds that it is not the rarest of rare case where death penalty is
warranted. As this Court is giving imprisonment for life, there is no
need to give hearing to the accused on the point of quantum of
sentence. Such hearing was given to the learned counsel for the
Accused. In the result, the following order is passed:
O R D E R
I. The appeal as against Respondent No.1 Ganesh
s/o Vitthal Pawar is hereby allowed.
II. The judgment and order of the Trial Court
acquitting Respondent No.1 Ganesh s/o Vitthal
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Pawar of the offence punishable under Section
302 read with 34 of the Indian Penal Code is
hereby set aside. He stands convicted for the
offence punishable under Section 302 of the
Indian Penal Code. He is sentenced to suffer
imprisonment for life and he is to pay fine of
Rs.1,000/. In default of payment of fine, he is to
further undergo rigorous imprisonment for one
month. He is entitled to set off in respect of the
period for which he was behind the bars in this
case. He is to surrender to his bail bonds for
undergoing sentence.
III. The appeal as against Respondent Nos.2 and 3
stands dismissed.
IV. Appeal as against Respondent No.4 is disposed
of as abated.
[ K. L. WADANE, J. ] [ T. V. NALAWADE, J. ]
ndm
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Appeal 207 of 2003.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 207 OF 2003
The State of Maharashtra,
Through Police Station,
Ghansawangi, Tq. Ghansawangi,
District Jalna. ... APPELLANT
(Ori. Complainant)
V E R S U S
1. Ganesh s/o Vitthal Pawar,
Age 25 years, Occu. Labourer,
R/o. Borranjani, Taluka
Ghansawangi, Dist. Jalna.
2. Pandurang s/o Vasant Pawar,
Age 22 yeas, Occu. Labourer,
R/o. Deotali Tanda, Taluka
Ghansawangi, Dist. Jalna.
3. Bhimrao s/o Vitthal Pawar,
Age 30 years, Occu. Labourer,
R/o. Borranjani, Taluka
Ghansawangi, Dist. Jalna.
4. Achyut s/o Vitthal Pawar,
Age 38 years, Occu. Labourer,
R/o. Bor Ranjani, Taluka
Ghansawangi, Dist. Jalna. ... RESPONDENT
(Ori. Accused)
...
Mr. M. M. Nerlikar, APP for Appellant / State.
Mr. Joydeep Chatterji, Advocate for Respondents / Accused.
...
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CORAM : T. V. NALAWADE &
K. L. WADANE, JJ.
st
DATE : 21 June, 2018.
JUDGMENT: ( Per T. V. Nalawade, J. )
. The appeal is filed by the State against the judgment and
order of Sessions Case No.247 of 2001, which was pending in the
Court of IInd Additional Sessions Judge, Jalna. All the Respondents
are acquitted by the Trial Court of the offence punishable under
Section 302 read with 34 of the Indian Penal Code. During the
pendency of present appeal, Respondent No.4 died, the appeal
against him needs to be abated and so the appeal against the
remaining three Respondents is heard.
2 In short, the facts leading to institution of the appeal can
be stated as follows:
Deceased Govind Pawar, was the husband of a sister of first
informant Kundlik Rathod. Deceased was resident of Deoli Tanda,
Tahsil Ghansawangi, District Jalna and first informant also hails from
the same village. All the accused persons are residents of the same
village. The relations between deceased and accused persons were
strained as in the past a criminal case was filed against accused
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persons in respect of assault made on the deceased by Accused No.3
Bhima and others. Bhima had insisted that Govind should withdraw
the case against him, but Govind had not withdrawn the case. Bhima
and other persons in that case were acquitted. After the decision of
acquittal, Bhima had given threat to Govind to teach him lesson.
Accused Nos.1, 3 and 4 are real brothers interse and Accused No.2 is
cousin of Accused No.1.
th
3 The incident in question took place on 29 July, 2001,
which was Sunday and weekly Bazar day of Paradgaon. Deceased
Govind, first informant and Seva Chavan had gone to Paradgaon for
Bazar. They were returning from Paradgaon to Deoli Tanda and
when they were present in one lane of Paradgaon, from the back side
all the four accused came running and they intercepted these
persons. During the incident, Accused No.4 Achyut and Accused
No.2 Pandurang held Govind and then Accused No.1 Ganesh gave
blows of Jambia (dragger) on the back and abdomen of Govind.
Govind sustained bleeding injuries and he collapsed on the ground.
After that Bhima gave kick blows to Govind.
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4 Kundlik and Seva Chavan tried to intervene by requesting
the accused not to assault Govind, but Ganesh said that they were
there to finish Govind. Then, Kundlik used force and snatched
Jambia from the hand of Ganesh. When Kundlik snatched Jambia,
Ganesh sustained bleeding injury to his hand. There was hue and cry
and the people of that lane started gathering. All the four accused
then ran away.
5 Kundlik shifted Govind in one four wheeler to Ranjani
Government Hospital. Some persons including Seva Chavan helped
him. Seva Chavan was sent to village to give news. Police had
already reached the hospital and from there Govind was shifted to
Government Hospital, Jalna and then to Government Hospital,
Aurangabad. Govind had become unconscious. First informant,
Police Patil of the village, Sudam, widow of Govind and others shifted
Govind to Civil Hospital, Aurangabad in a vehicle and they remained
in his company. After admitting Govind in the Government Hospital,
first informant, Police Patil and one more person went to
Ghansawangi Police Station to give report. Jambia, which the first
informant had snatched from the hand of Ganesh was with the first
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informant and he produced Jambia before Police. He took the names
of all the four accused and he described the aforesaid incident to the
Police. Crime at C.R.No.66 of 2001 came to be registered in
Ghansawangi Police Station for the offences punishable under
Sections 307 and 323 read with 34 of the Indian Penal Code at 07:30
th
am on 30 July, 2001.
6 During the course of investigation, Police prepared
Panchanama of spot where the incident had taken place and also
recorded the statements of eye witnesses and other persons. Jambia
was taken over. Govind succumbed to injuries sustained in the
incident and postmortem was conducted on his dead body. So many
injuries caused by the sharp weapon were found on the dead body
and doctor gave opinion that the death took place due to injuries
caused by sharp weapon like Jambia, which was taken over by the
Police in the matter. Articles taken over were sent to CA office.
Blood was detected on the earth sample collected from the spot of
offence and also on Jambia (dragger). Chargesheet was filed
against all the four accused for the offence punishable under Section
302 read with 34 of the Indian Penal Code. Charge was framed for
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this offence. All the accused pleaded not guilty. Prosecution
examined in all eight witnesses. The Trial Court has not believed the
prosecution evidence and acquittal is given in favour of all the four
accused.
7 At the time of considering the evidence given by the
prosecution, it needs to be kept in mind that Accused No.1 Ganesh is
not disputing that he was present on the spot at the relevant time. He
has contended that he had also sustained injuries. The admitted
record, injury certificate is at Exhibit 20 and it shows that he sustained
one incised would on right palm and one incised wound over left index
finger. These injuries were caused by sharp weapon and they were
caused within six hours prior to the examination. Admitted document
th
at Exhibit 20 shows that Accused No.1 was examined on 29 July,
2001 at 05:00 pm when the incident had taken place on that day in
noon time. There is statement given by Accused No.1 under Section
313 of the Code of Criminal Procedure also. Thus, Accused No.1 had
admitted his presence on the spot and involvement in the incident.
He had admitted that there was scuffle between him and deceased
Govind. There is no such material against the remaining accused
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persons. These circumstances are not considered by the Trial Court.
The defence of Accused No.1 that he had snatched the dragger from
the hand of deceased is falsified by circumstance of production of
dragger by PW1. The provisions of Sections 18 and 58 of Evidence
Act are virtually ignored by the Trial Court. It is the duty of Court to
ascertain whether inference is possible on such admission.
8 Kundlik Rathod (PW1) has given evidence on motive.
He has given evidence that in the past, there was quarrel between
deceased Govind and the accused persons including Accused No.1
and during quarrel Bhima had assaulted Govind with axe. He has
deposed that a case was filed against Accused No.1 and Bhima and
they were asking him to withdraw the case. He has given evidence
that Govind was not ready to withdraw the case, but then Bhima and
other accused of that case were acquitted. He has given evidence
that after the decision of the case, accused Bhima had given threat to
Govind to teach him lesson. During the statement recorded under
Section 313 of the Code of Criminal Procedure, this part of evidence
was put to all the accused. Accused No.1 has admitted that there
was a case filed against him in respect of the aforesaid incident.
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9 Kundlik Rathod (PW1) has given evidence that after
about one month of the decision of previous case in favour of accused
persons, the incident in question took place and it took place in village
Paradgaon. He has given evidence that he, witness Seva and
deceased Govind were returning to their village from Paradgaon. He
has deposed that Accused Nos.1 to 4 followed them and then
accused Pandurang and Achyut held Govind in the incident and
Ganesh gave blows of dragger on the person of Govind. He has
given evidence that many blows were given and Govind collapsed on
the ground. He has given evidence against Bhima that Bhima gave
stick blows to Govind and he snatched the dragger from the hand of
Ganesh and during that attempt Ganesh sustained injuries to his
hand. He has given evidence that there was hue and cry and then
accused persons ran away from the spot. He has given evidence that
he shifted Govind to Hospital of Ranjani and from there Govind was
shifted to Civil Hospital of Jalna and from hospital of Jalna, they
shifted Govind to Government Hospital, Aurangabad. He has given
evidence that after admitting Govind in Aurangabad Government
Hospital, he went to Ghansawangi Police Station to lodge the report
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and the report at Exhibit 28 was given by him. He has given evidence
that the dragger, which was produced in the Court, was snatched by
him from the hand of Ganesh and it was produced before Police. He
has given evidence that when Police prepared spot Panchanama,
spot was shown by him and he produced his clothes before the Police
as there were blood stains on the clothes, article 5 and article 6.
10 The FIR at Exhibit 28 is consistent on material points with
the oral version given in the Court by Kundlik Rathod (PW1). There
is only one exaggeration. In FIR, he had not mentioned that Bhima
had assaulted the deceased by using stick. On this evidence, witness
was crossexamined. During crossexamination, he admitted that
Bhima had not assaulted Govind by using stick. Thus, the evidence
as against Bhima that he used stick cannot be used against Bhima.
Further, postmortem report, which this Court is considering at later
stage, does not show that any injury was caused due to the weapon
like stick. Thus, there is corroboration of FIR to oral evidence given
against Ganesh.
11 Seva Chavan (PW6) is examined as eye witness by
Police and his name is mentioned in FIR as eye witness. He is from
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village Deoli Tanda, Tahsil Ghansawangi. He has given evidence that
he knew deceased Govind and all the accused from prior to the day of
incident. He has given evidence that on the day of incident, he and
Kundlik were in the company of Govind and at about 04:00 pm they
were returning from Paradgaon. He has deposed that he noticed that
when Govind was behind him, incident started and he looked back as
there was shouting. He has given evidence that in the incident
accused Pandurang and accused Achyut held Govind and Ganesh
assaulted Govind by using dragger. He has given evidence that
Bhima gave kick blows to Govind. He has given evidence that in the
incident Kundlik snatched dragger from the hand of Ganesh and in
that incident, Ganesh received injuries to his right hand. He has given
evidence that after the incident, due to request made by Kundlik, he
went to the village to give message.
12 The evidence of Seva Chavan (PW6) remained
unshattered during his extensive crossexamination. It is true that his
evidence does not show that he intervened in the indent to save
Govind, but that does not mean that he was not present on the spot.
It can be said that there is possibility of exaggeration and this witness
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was at some distance from Govind and he paid attention to backside
when incident started and he had virtually no time to intervene in the
incident. There are other circumstances showing that the widow of
Govind and other persons of the village including Police Patil came to
Primary Health Center, Ranjani. The evidence is given by this
witness that it is he who went to village and gave news about the
incident. The tenor of crossexamination of this witness shows that
his presence on the spot is not disputed. On the contrary, it is
suggested to him that during the incident Govind was trying to finish
Ganesh and due to that the scuffle took place and in the scuffle
Govind sustained injury due to article 1. It is suggested to him that
except Ganesh, no other accused was present on the spot at the time
of incident. The tenor of crossexamination of Kundlik (PW1) is
similar. Thus, the presence of Kundlik is also not disputed. As there
are aforesaid circumstances and as there is name of Seva (PW6) in
FIR, no doubt is created about the version of Seva that the injuries,
which were found on the dead body of Govind, were inflicted by
accused Ganesh.
13 Jagannath Pawar (PW4) is resident of Deoli Tanda and
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he is also examined as eye witness. He has deposed that he had
seen Govind, Kundlik and Seva together near Grampanchayat Office,
Paradgaon and he had also seen the accused persons in village
Paradgaon. He has given evidence that he was present in the vicinity
of village Panchayat office and when he heard shouting, he rushed to
the spot. He has given evidence on incident, which is similar to the
evidence given by aforesaid eye witnesses. His evidence is also
mainly against accused Ganesh that Ganesh assaulted Govind by
using dragger and then Govind collapsed on the ground. He has
given evidence that in his presence Kundlik snatched dragger from
the hand of Ganesh and then accused ran away. Evidence of this
witness shows that he knew Govind and accused persons prior to the
date of incident. His evidence shows that he remained with Govind
when Govind was first shifted to Primary Health Center Ranjani, then
Civil Hospital, Jalna and then to Civil Hospital, Aurangabad. He has
given evidence on motive also, which is similar to the evidence given
by PW1.
14 The tenor of crossexamination of Jagannath (PW4) also
shows that the defence has not disputed that he had gone to Primary
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Health Center, Ranjani. Some omissions in relation to previous
statement of this witness are proved and they are in respect of
evidence given against accused Bhima by this witness. Nothing is
brought on record to create probability that this witness has any
reason to give false evidence against the accused persons. There is
clear suggestion given to him in the crossexamination that in the
incident Govind was attempting to finish Ganesh by using article 1,
but Ganesh had scuffle with Govind and in the scuffle Govind
sustained injuries. The suggestion about scuffle is denied by this
witness, but the facts remained that the defence did not dispute that
this witness was present on the spot at the relevant time.
15 The prosecution examined one more eye witness namely
Syed Qudratali Osmanali (PW5). He has given evidence, which is
similar to the evidence of PW1 and other witnesses. Though he is
not named in the FIR, he is resident of Ranjani Tahsil Ghansawangi.
He has given evidence that he was at Paradgaon and he had seen
both deceased and accused in village Paradgaon at 04:00 pm.
Incident took place near village Panchayat and so his evidence is
important. He has given evidence against Ganesh that Ganesh
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assaulted Govind by using knife. Though he has given evidence
against Bhima that Bhima had given kick blows, as injuries caused by
other weapon were not found on the dead body and as there is
possibility of exaggeration, there is no need to discuss the evidence of
this witness also as against Bhima. He has given evidence on motive
also and his evidence shows that he knew deceased and Ganesh
from prior to the day of incident.
16 Other witness like Ramesh Pawar (PW2) has given
evidence on the disclosure made about the incident by Govind in
Ranjani Hospital. There is no medical record to show that Govind
was conscious when he was taken to Ranjani Primary Health Center.
This Court holds that the evidence given by this witness on the dying
declaration of Govind is not that convincing. Police statement was
th
recorded on 30 July, 2001. However, other evidence of this witness,
which is on disclosure made by Kundlik to him is there. In any case
when there is evidence of eye witness, even if evidence of Ramesh
(PW2) is ignored, that cannot go to the root of the case of
prosecution.
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17 The evidence of Police Inspector, Pandharinath Bhosale
(PW8) shows that he had made attempt to see that the dying
declaration of Govind is recorded, but his version shows that no such
dying declaration could be recorded. His evidence shows that Police
had referred Accused No.1 Ganesh to Civil Hospital, Jalna from
Primary Health Center Ghansawangi for treatment. The record shows
that Ganesh was not arrested immediately and he could be arrested
st
on 1 August, 2001. Injury certificate at Exhibit 20, which is already
described shows that Ganesh was referred by Ghansawangi Police
th th
Station for medical examination on 29 July, 2001. Thus, on 29 July,
2001, either accused Ganesh had approached police or police had
information against Ganesh about his involvement in the incident.
This circumstance is important in view of the nature of defence taken
by Ganesh in the present matter. Though such circumstance creates
probability of receiving specific information regarding commission of
crime and involvement of particular person as accused by police and
due to that, it can be inferred that the information of the nature of FIR
was received by Police, that circumstance cannot go to the rood of
prosecution case. Due to that circumstance, the FIR, which is proved
in the evidence of PW1 will not be available for the purpose of
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corroboration to the version of PW1. In the resent case, even if there
is no such corroboration and it is presumed that police had already
specific information of the nature of FIR prior to giving of report by
PW1, the other evidence is sufficient for basing conviction.
18 It is already observed that Accused No.1 has not disputed
his presence on the spot. The presence of most of the eye witnesses
on the spot at the relevant time is also not disputed. The evidence of
Pandharinath (PW8) shows that the clothes of Complainant were
taken over as there were blood stains on those clothes. Those
clothes were sent to CA office and blood was detected on those
clothes. Such circumstance gives corroboration to the version of eye
witnesses and it shows that the witness was present on the spot at
the relevant time. The evidence of spot of offence is not disputed and
that evidence also corroborates the versions of eye witnesses.
19 Dr. Sunil Jawale (PW7) conducted postmortem
th
examination on the dead body on 30 June, 2001. It appears that
Govind succumbed to injuries when he was unconscious and in the
th
Government Hospital in early hours on 30 June, 2001. Postmortem
th
was conducted on the dead body on 30 June, 2001 between 02:00
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pm and 03:00 pm. Postmortem report is duly proved in the evidence
of Dr. Sunil Jawale (PW7) as Exhibit 19. The doctor found following
injuries on the dead body of Govind :
“1 Two incised wounds either side of chest IVth and Vth
I.C.S. margins sharp, oedematons, deep to the
thorasic cavity, No lungs parenchyma injured,
appeared to be a surgical intervention for drain out
the plural collection.
2 A stab injury over back, left infra scapular area, 7 x 3
cms. Tailing seen at one end. 5 cm deep, margins
sharp and incised, oedemations. Evidence of injured
lung parenchyma seen with injury to bronchioles.
The lung Parechyma is oedematons. Pleura incised
at the site.
3 Stab injury 7 x 3 cms over back, in the middle of
medial boarder of Rt.scapula, 5 cms deep tailing
seen at one end 5 cms deep. Margins sharp and
incised, oedemators, evidence of injured lung
parenchyma with injury to Bronchitons and pleura
seen.
4 A stab wound seen over abdomen, Lt.Lumbar
quadrant 5 x 3 cms one end tailing seen, margins
incised and clean cut 9 cms deep, injury to the
mesentry seen with contused appearance, small
intestine contused.”
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20 Dr. Sunil Jawale (PW7) has given evidence that all the
aforesaid injuries were antemortem in nature and these injuries are
sufficient to cause death in ordinary course of nature. The weapon
dragger, article 1 was shown to the doctor and the doctor has given
opinion that such weapon can cause the aforesaid injuries. This
witness was not crossexamined by the defence. It can be said that
the defence is not disputing that Govind died homicidal death and
aforesaid injuries caused the death.
21 The aforesaid discussion shows the following things:
a) There was motive for Accused No.1 Ganesh for the
crime.
b) Ganesh is admitting his presence on the spot at the
relevant time and also his involvement in the incident
by admitting that there was scuffle between him and
deceased Govind.
c) Ganesh is admitting that weapon dragger was used in
the incident.
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d) Ganesh is admitting that he sustained injuries to his
hand in the incident.
e) There is direct evidence of the witnesses, some of
whom are from other place. Both the witnesses
mentioned in the FIR supported the case of
prosecution. Their presence on the spot is not
disputed by the defence. There is also corroboration
of other circumstances to the evidence of witnesses
mentioned in the FIR. The statements of witnesses
th
were recorded on 30 July, 2001. The evidence
shows that the deceased was first shifted to Primary
Health Center, Ranjani, then to Civil Hospital, Jalna
and then Civil Hospital, Aurangabad and the first
informant was busy, he was in company of deceased
and so some delay was caused in giving FIR to the
police. After FIR Police could make proper
investigation.
th
f) Accused Ganesh was referred by Police on 29 July,
2001 for medical examination and Ganesh has
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admitted that he sustained injuries in the incident. His
explanation that he was trying to save himself is not
plausible as injuries on his hand were sustained due to
snatching of weapon and not due to assault.
g) Medical evidence is consistent with the evidence given
by the eye witnesses.
h) There is consistency in the evidence given by the eye
witnesses and there is corroboration of the
circumstantial evidence to the direct evidence.
22 The aforesaid material is not considered and appreciated
by the Trial Court atleast as against Accused No.1 Ganesh.
Considering the site of body of deceased where injuries were inflicted
on him and considering the site of body of accused where he
sustained the injuries, the Trial Court ought to have drawn proper
inference. The Trial Court ought to have considered the defence
taken by Ganesh at the time of appreciation of direct evidence and
ought to have come to the conclusion as to whether defence taken by
accused was probable in nature. This Court holds that the evidence
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given by the prosecution was more than sufficient to prove that it is
Ganesh who caused the aforesaid injuries intentionally to Govind.
Inference is also easy that there was intention to finish Govind.
Further, there is evidence of doctor that these injuries are sufficient in
ordinary course of nature to cause death. Thus, only one inference is
possible that it is murder and accused No.1 Ganesh murdered
Govind. This Court holds that the Trial Court has not properly
appreciated the material available under Section 3 of the Evidence
Act and the Trial Court did not properly appreciate the interpretation of
the term “proved” used in Section 3 of the Evidence Act. When there
is direct evidence of witness, whose presence on the spot is not
disputed and when there is circumstantial evidence falling under
Sections 6, 7 and 8 of the Evidence Act, very convincing reasons
need to be given for not believing such evidence. This Court holds
that the Trial Court has not considered the aforesaid material as
provided by the aforesaid provisions of the Evidence Act and the Trial
Court has committed serious error in giving decision of acquittal in
favour of Accused No.1 Ganesh.
23 It is true that four accused persons were shown to be
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involved in the matter and there was no circumstantial check to the
evidence given as against Accused Nos.2 to 4. It is also true that the
crime was registered late and prior to the registration of crime, there
was specific information atleast as against Ganesh. In such
circumstances, truth was easily separable. The evidence given as
against Accused Nos.2 to 4 could have been easily ignored and on
the basis of other evidence the Trial Court could have safely convicted
Accused No.1 for the offence of murder. Thus, interference is
warranted in the decision given by the Trial Court in favour of Ganesh.
In view of the nature of evidence and the reason for the incident, this
Court holds that it is not the rarest of rare case where death penalty is
warranted. As this Court is giving imprisonment for life, there is no
need to give hearing to the accused on the point of quantum of
sentence. Such hearing was given to the learned counsel for the
Accused. In the result, the following order is passed:
O R D E R
I. The appeal as against Respondent No.1 Ganesh
s/o Vitthal Pawar is hereby allowed.
II. The judgment and order of the Trial Court
acquitting Respondent No.1 Ganesh s/o Vitthal
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Pawar of the offence punishable under Section
302 read with 34 of the Indian Penal Code is
hereby set aside. He stands convicted for the
offence punishable under Section 302 of the
Indian Penal Code. He is sentenced to suffer
imprisonment for life and he is to pay fine of
Rs.1,000/. In default of payment of fine, he is to
further undergo rigorous imprisonment for one
month. He is entitled to set off in respect of the
period for which he was behind the bars in this
case. He is to surrender to his bail bonds for
undergoing sentence.
III. The appeal as against Respondent Nos.2 and 3
stands dismissed.
IV. Appeal as against Respondent No.4 is disposed
of as abated.
[ K. L. WADANE, J. ] [ T. V. NALAWADE, J. ]
ndm
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