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Khairlanji Massacre Judgement of The Bombay High Court Dated 14th Jul 2010
Khairlanji Massacre Judgement of The Bombay High Court Dated 14th Jul 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Confirmation Case No. 4/2008.
Central Bureau of Investigation
(Through D.S.P.,C.B.I.S.C.B. Chennai)
Camp at Bhandara.
…..Appellant.
.versus.
1. Sakru Mahagu Binjewar
(Original Accused No.2)
2. Shatrughna Isram Dhande
(Original Accused No. 3)
3. Vishwanath Hagru Dhande
(Original Accused No. 6)
4. Ramu Mangru Dhande
(Original Accused No. 7)
5. Jagdish Ratan Mandlekar
(Original Accused No. 8)
6. Prabhakar Jaswant Mandlekar
(Original Accused No. 9)
Respondent Nos. 1 to 6 R/o: Khairlanji
District: Bhandara (Maharashtra State).
...Respondents
Mr. Ejaz Khan, Spl. P.P. For appellant.
Mr. Sudip Jaiswal, Advocate for respondent nos. 1,5 and 6.
Mr. N.S.Khandewale, Advocate for respondent nos. 2,3 and
4.
2
Criminal Appeal No. 748/2008
1. Shatrughna s/o Isram Dhande
Aged about 40 years.
Occupation: Agricultural Labourer.
(Original accused no. 3)
2. Vishwanath s/o Hagru Dhande
Aged 55 years.
Occupation: Agricultural Labourer.
(Original accused no. 6)
3. Ramu s/o Mangru Dhande
Aged 42 years.
Occupation; Agricultural Labourer.
(Original accused no.7)
4. Shishupal s/o Vishwanath Dhande,
aged 20 years.
Occupation: Agricultural Labourer.
(Original accused no. 11)
(All the appellants are R/o: Village Khairlanji,
Tah. Mohadi, Distr.Bhandara.)
…....Appellants.
.versus.
The Central Bureau of Investigation,
through its Dy.S.P., C.B.I., S.C.B., Chennai,
Camp at Bhandara.
…....Respondent.
Mr. N.S.Khandewale Advocate for the appellants.
Mr. Ejaz Khan, Spl. P.P. for respondent.
3
Criminal Appeal No. 763/2008
1. Gopal Sakru Binjewar
Aged about 23 years,
Occupation: Cultivator,
R/o: Khairlanji, Tahsil Mohadi,
District: Bhandara.
(Original accused no. 1)
2. Sakru Mahagu Binjewar
Aged about 49 years,
Occupation: Cultivator,
R/o: Khairlanji, Tahsil Mohadi,
District: Bhandara.
(Original accused no. 2)
3. Jagdish Ratan Mandlekar
Aged about 51 years,
Occupation: Cultivator,
R/o: Khairlanji, Tahsil Mohadi,
District: Bhandara.
(Original accused no.8)
4. Prabhakar Jaswant Mandlekar
Aged about 27 years,
Occupation: Cultivator,
R/o: Khairlanji, Tahsil Mohadi,
District: Bhandara.
(Original accused no. 9)
…....Appellants.
.Versus.
Central Bureau of Investigation,
through its D.S.P.,, C.B.I., S.C.B.
Chennai, Camp at Bhandara.
…....Respondent.
Mr. Sudeep Jaiswal, Advocate for the appellants.
Mr. Ejaz Khan, Spl. P.P. for respondent.
4
Criminal Appeal No. 170/2009
Central Bureau of Investigation,
Special Crime Branch, Chennai Camp
O/o: SP, CBI, ACB, 3rd Floor, Block – C,
CGO Complex, Seminary Hills, Nagpur
Through PSI, CBI, Nagpur.
….Appellant.
Versus.
1. Gopal Sakru Binjewar,
Aged about 23 years,
OccupatioN: Labour.
2. Shishupal Vishwanath Dhande,
Aged about 23 years,
Occupation: Cultivator.
All residents of Village Khairlanji,
Tah: Mohadi, Distt. Bhandara.
….. Respondent.
Mr. Ejaz Khan, SPL, P.P. For the appellant.
Mr. Sudeep Jaiswal, Advocate for respondent no.1.
Mr. N.S.Khandewale, Advocate for respondent no.2.
Criminal Appeal No. 171/2009
Central Bureau of Investigation,
Special Crime Branch, Chennai Camp
O/o. SP, CBI, ACB, 3rd Floor,
Block C, CGO Complex, Seminary Hills,
Nagpur, Through PSI, CBI, Nagpur.
…....Appellant.
.versus.
5
1. Gopal Sakru Binjewar,
Aged about 23 years,
Occupation: Labour.
2. Sakru Mahagu Binjewar
Aged about 49 years,
Occupation; Labour.
3. Shatrughan Isram Dhande,
Aged about 40 years,
Occupation: Cultivator.
4. Vishwanath Hagru Dhande
Aged about 55 years,
Occupation: Cultivator.
5. Ramu Mangru Dhande,
Aged about 42 years,
Occupation: Cultivator.
6. Jugdish Ratan Mandlekar,
Aged about 51 years,
Occupation: Cultivator.
7. Prabhakar Jaswant Mandlekar,
aged abot 27 years,
Occupation: Cultivator.
8. Shishupal Vishwanath Dhande,
Aged about 23 years,
Occupation: Cultivator.
All residents of Village Khairlanji,
Tah. Mohadi, Distt. Bhandara.
…..Respondents.
Mr. Ejaz Khan, SPL. P.P. for appellant.
Mr. S.Jaiswal, Advocate for respondents 1,2,6 and 7.
Mr. N.S.Khandewale, Advocate for respondents 3,4,5 and 8.
6
CORAM : A.P.LAVANDE & R.C.CHAVAN, JJ
DATE OF RESERVING : 29.04.2010
DATE OF PRONOUNCEMENT: 14.07.2010
JUDGMENT (PER A.P.LAVANDE, J)
connected four appeals are being disposed of by common
Judgment since they arose out of the Judgment and order
dated 15/24th September, 2008 passed by the Special Court
at Bhandara in Special Criminal Case No. 01/2007 filed by
Central Bureau of Investigation against eleven accused.
2. All the eleven accused were tried for the offences
punishable under Sections 302, 354, 449, 201, 148 read with
3(1) (x), 3(1) (xi), 3(2) (v) and 3(2) (vi) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities ) Act,
1989. By the impugned Judgment accused nos. 1 to 3; 6 to 9
offences and accused nos. 4,5 and 10 have been acquitted of
all the offences for which they have been charged. The
nos. 1 to 3, 6 to 9 and 11 are as under:
7
Accused Sections Sentence
nos.
1 to 3, 6 to 9 302 r/w 149 Imprisonment for life and
and 11. for murder payment of fine of Rs.2000/
of Surekha each i/d to undergo S.I. for
six months each.
2,3,6 and 9 302 r/w 149 Sentenced to death i.e.
for murder hang by neck till death and
of Sudhir payment of fine of Rs.2000/
each i/d to undergo S.I. for
six months each.
1 and 11 302 r/w 149 Imprisonment for life and
for murder payment of fine of Rs.2000/
of Sudhir each i/d to undergo S.I. for
six months each.
2,3 & 6 to 9 302 r/w 149 Sentenced to death i.e.
for murder hang by neck till death and
of Roshan payment of fine of Rs.2000/
each i/d to undergo S.I. for
six months each.
1 and 11 302 r/w 149 Imprisonment for life and
for murder payment of fine of Rs.2000/
of Roshan each i/d to undergo S.I. for
six months each.
2,3 & 6 to 9 302 r/w 149 Sentenced to death i.e.
for murder hang by neck till death and
of Priyanka payment of fine of Rs.2000/
each i/d to undergo S.I. for
six months each.
1 and 11 302 r/w 149 Imprisonment for life and
for murder payment of fine of Rs.2000/
of Priyanka each i/d to undergo S.I. for
six months each.
8
1 to 3 and 148 r/w 149 R.I. for three years and to
6 to 9 & 11 pay fine of Rs.1000/ each
i/d to S.I. for three months
each.
3. Confirmation Case No. 4/2008 arises out of death
has been preferred by the original accused nos. 3,6,7 and 11
imposed on accused nos. 1 and 11 and Criminal Appeal No.
Investigation challenging acquittal of accused nos. 1 to 3, 6
to 9 and 11 for the offences punishable under sections 3(1)
(x), 3(1)(xi), 3(2) (v) and 3(2) (vi) of the Scheduled Castes
For the sake of convenience, the accused shall hereinafter
9
be referred to as per their status before the trial court.
4. Briefly, the case of the prosecution is as follows:
residing at outskirts of Khairlanji village called as 'Toli' with
his wife Surekha and sons Sudhir and Roshan and daughter
Dhusala is their family friend.
evening when Sidharth was proceedings towards Kandri he
assault Surekha Bhotmange and Priyanka rushed there and
which Crime No. 52/06 was registered. Surekha Bhotmange
10
gave statement identifying the persons/ accused who
arrested. On 29.9.2006 all the accused in Crime No. 52/06
were released on bail.
6. On 29.9.2006 at about 6 to 6.30 p.m. a group of
Bhotmange and some of them shouted that they have been
Surekha tried to run away but she was chased and caught by
Thereafter, Sudhir tried to run away but he was also chased
sticks, bicycle chains and by giving kicks and fist blows. His
members of the family of Bhaiyalal. They traced Roshan in
11
nearby cattle shed. Roshan freed himself and ran away
towards the hand pump. All the accused chased him and
giving blows of sticks, bicycle chains and by giving kicks
the hand pump and all the accused beat her by giving blows
Priyanka died. Thereafter, all the accused brought four dead
bodies at one place and threatened others not to tell about
the incident to any one and further threatened that in case
same fate. Thereafter, accused brought one bullock cart and
took four dead bodies towards the village Kandri and then
dropped them in a canal.
Dhusala and told him about the incident. Siddharth made a
Andhalgaon Police Station but did not lodge report since he
was frightened. On the next day morning Bhaiyyalal went
12
to search his family members but he could not trace them
out. Then he went to Andhalgaon Police station and lodged
that the dead body of a girl with a tatoo mark 'Priyanka' on
the hand was found in a canal which was fished out. Police
was taken. Bhaiyalal identified the dead body of Priyanka.
under Sections 147, 148, 149, 302 and 201 of the Indian
Penal Code and under Sections 3(1)(x) of Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act.
7. On 1.10.2006 the Sub Divisional Police Officer Mr.
Susatkar arrested about eighteen persons on suspicion. On
the same day three more dead bodies i.e. of Surekha, Sudhir
inquest panchanamas of these dead bodies and the dead
bodies were sent for post mortem. Since the investigation
Government handed over the investigation of the crime to
the State C.I.D.. However, not much progress was made in
13
the investigation.
Maharashtra requested the Union of India to investigate the
Bureau of Investigation started investigation by registering
the crime at Special Crime Branch of C.B.I. Chennai vide
CBI recorded statements of several witnesses. CBI sought
discharge of thirty six accused who were suspected to be
Magistrate. Statements of several witnesses were also got
148, 149, 120B and 302 of the Indian Penal Code and
of Sessions. Thereafter, the case was transferred to Special
Court for trial. The Special Court framed charge against all
the accused for the offences punishable under Sections 302,
148, 149, 354, 201 read with Section 149 and 120B of the
Indian Penal Code and under Sections 3(1)(x), 3(1)(xi) and
accused pleaded not guilty to the charge and claimed to be
tried. The defence of the accused was of total denial and of
false implication.
bring home the charge to the accused. The accused did not
convicted and sentenced the accused nos. 1 to 3, 6 to 9 and
11 for different offences as stated above. The learned trial
and 9.
counsel appearing on behalf of accused nos. 1,2,6 and 7, Mr.
N.S.Khandewale, learned counsel for the accused nos. 3,6,7
learned counsel for the accused and learned Special P.P. we
perused the record.
11. Mr. Jaiswal, learned counsel for the accused nos.
1,2 6 and 7 and sentences imposed on them are liable to be
set aside, inter alia, on the following grounds.
i) The evidence of the eye witnesses i.e.
not inspire confidence and as such is liable to
16
be rejected.
statements of the witnesses more particularly
prosecution case.
omissions seriously affecting their credibility.
iv) Extra judicial confessions alleged to
have been made by the accused nos. 2 and 8
to P.W.10 Anil Lede and P.W.16 Sunil Lede do
not inspire confidence.
and, therefore, is liable to be rejected.
vi) The medical evidence is at variance
examined by the prosecution.
death sentence.
In support of his submissions, Mr. Jaiswal relied
upon the following authorities.
i) State of M.P. vs. Kriparam
(2003) 12 Supreme Court Cases,
675.
iii) Rangrao Mithuji Kalokar & ors.
vs. State of Maharashtra.
2006 ALL MR(CRI) NOC 90.
v) Kikar Singh vs. State of Rajasthan
AIR 1993 SC 2426.
vii) Mohinder Singh & Anr. vs. State
of Punjab and others.
2003 ALL MR(CRI) 2330
18
viii) State of U.P. vs. Mundrika &
others.
I(2001)CCR 80SC
x) Shankar Lal vs. State of Haryana
AIR 1998 CRLJ 4592
xi) Tarseem Kumar vs. The Delhi
Administration
AIR 1994 SC 2585
xii) Dilavar Hussain and others. vs.
State of Gujrat and another.
1991(1) SCC 253
xiii) Varkey Joseph v. State of Kerala
AIR 1993 SC 1892
xiv) Omwati vs. Mahendra Singh &
others.
(1) 1998 CCR 130 SWC
xv) Tahsildar Singh and another vs.
State of U.P.
AIR 1959 SC 1012.
accused nos. 2,6,7 and 11 assailed conviction and sentences
grounds.
inordinate delay of 24 to 26 hours in lodging
19
F.I.R. by Bhaiyyalal Bhotmange(P.W.17)
prosecution case.
discrepancies and the written F.I.R. (Exh. 134)
does not correspondence with the oral report
lodged by P.W.17 Bhaiyyalal Bhotmange and
(P.W.23).
iii) The evidence of eye witnesses is full
of material contradictions and omissions and
incident.
iv) There has been inordinate delay in
case.
and 8 to P.W.10 Anil Lede, P.W.15 Gopichan
inspire confidence since both these witnesses
alleged extra judicial confessions.
vi) The medical evidence tendered by the
be caused only by sharp edged weapon which
is contrary to the prosecution case.
vii) The medical evidence clearly belies
evidence of the eye witnesses.
viii) The prosecution has chosen not to
seized during the investigation to Dr. Avinash
found on the deceased.
21
ix) The entire investigation carried out
by the CBI is tainted and with a view to falsely
implicate eleven accused in the crime.
accused nos. 3,6 and 7 is not warranted since
the case can not be termed as rarest of rare.
placed reliance on the following judgments.
ii) State of Punjab vs. Avtar Singh
(2009) 10 SCC 800
iii) State of Andhra Pradesh
(2008) 14 SCALE 118.
vi) Shankarlal vs. State of Rajasthan
AIR 2004 SC 3559.
22
vii) State of Rajasthan vs. Sheo Singh
& others.
AIR 2003 SC 1783
viii) Ashraf Hussain Shaj vs. State of
Maharashtra
1996 CRLJ 3147.
ix) Pannayar vs. State of Tamil Nadu
((2009)9 SCC 152).
x) Pratap Singh and another vs. State
of M.P..
2005) 13 Supreme Court Cases,
624.
xii) Badam Singh vs. State of M.P.
(2003) 12 Supreme Court Cases,792.
xiii) State Inspector of Police,
Vishakhapatnam vs. Surya
Sankaram Karri.
(2006) 7 Supreme Court Cases, 172.
xiv) Ashish Batham vs. State of M.P.
AIR 2002 Supreme Court, 3206.
xv) Shrishti Narain Jha vs. Bindeshwar
Jha and others.
(2009) 6 Supreme Court Cases,457.
xvi) State of Maharashtra vs. Pralhad
Champatrao Deshbhratar and
others.
2005(1) MHLJ 784
23
xvii) State of M.P. vs. Bacchudas @
Balram & others.
(2007)9 Supreme Court Cases, 135.
xviii) Lakhwinder Singh and others vs.
State of Punjab
AIR 2003 Supreme Court 2577.
xix) Brijpal Singh vs. State of M.P.
2003 AIR SCW 2480.
xx) State of Andhra Pradesh vs. S.
Swarnalatha and others.
IV(2009) CCR 286 (SC).
• xxi) Dhanapal vs. State by Public
Prosecutor , Madras
IV(2009) CCR 243(SC)
xxii) Jai Singh & others. vs. The State of
Karnataka
2007(5)SCAL 658.
xxiv) Babu and others v. State of U.P.
AIR 1983 Supreme Court 308.
xxvi) State of Rajashthan vs. Netrapal &
others.
(2007) 4 Supreme Court Cases, 45.
xxvii) Haru Ghosh vs. State of West Bengal
IV(2009)CCR 7 (SC).
24
xxviii) Sushil Kumar vs. State of Punjab
IV(2009) CCR 193 (SC).
xxix) Lehna vs. Stateof Haryana
(2002) 3 Supreme Court Cases, 76.
xxx) Jagjit Singh alias Jagga vs. State of
Punjab
(2005) 3 Supreme Court Cases 689.
xxxi) Dhananjay Shanker Shetty vs. State
of Maharashtra
AIR 2002 Supreme Court, 2787.
impugned Judgment and order submitted that accused nos.
1 and 11 ought to have been awarded death sentence and
the reasons given by the learned trial court for awarding life
imprisonment are patently unsustainable in law. He further
submitted that the acquittal of the accused nos. 1 to 4, 6 to 9
and 11 for the offence punishable under Section 3(1)(x), 3(1)
patently unsustainable in law inasmuch as the prosecution
25
has clearly established the ingredients of the said offences
provisions is unsustainable and is liable to be set aside. He
and only after verifying the complicity of the accused, CBI
Dhande and P.W.22 Premlal Walke inspire confidence and
is in consonance with their statements before the CBI and
the Magistrate and, therefore, there is absolutely no reason
delay in lodging report by P.W. 17 Bhaiyyalal Bhotmange is
mob near his house which made him to run away from the
spot. He further submitted that the evidence of the hostile
therefore, to that extent his evidence has to be considered,
26
more particularly having regard to the fact that the principle
of falsus in uno falsus in omnibus is not applicable in India.
confidence and there is absolutely no reason to disbelieve
their extra judicial confessions. He further submitted that
the contradictions and omissions in the evidence of the eye
witnesses are on minor aspects which do not discredit their
Judgment and Order passed by the learned trial court be
modified by convicting accused nos. 1,2,3,4,6 to 9 and 11 for
3(2)(v) and (vi) of the S.C. S.T. Act and the accused nos. 1
and 11 be awarded death sentence.
upon the following judgments;
i) Ashabai Machindra Adhagale vs. State
of Maharashtra and others.
AIR 2009 Supreme Court, 1973
ii) Swaran Singh and others vs. State
2008 CRI L.J. 4369.
27
iii) Bachcha vs. State of U.P.
2008 CRI.L.J. 483.
iv) Vidyadharan vs. State of Kerala
2004 CRI. L.J. 605.
v) Shiva Karam Payaswami Tewar .v.
State of Maharashtra.
AIR 2009 Supreme Court, 1692.
vi) Mohd. Azad @ Samin v. State of
West Bengal.
AIR 2009 Supreme Court, 1307.
vii) Gura Singh vs. State of
Rajashthan
(2001) 2 Supreme Court Cases,
205.
viii) Kailash vs. State of M.P.
(2006)11 Supreme Court Cases
420.
ix) Ravi Kumar Vs. State of Punjab
(2005) 9 Supreme Court Cases, 315.
x) State of U.P. vs. Premi & others.
(2003) 9 Supreme Court Cases,12.
xi) State of Rajasthan vs. Laxman
Singh and others.
(2002) 10 Supreme Court Cases, 65.
death sentence. Learned counsel further submitted that not
only accused nos. 1 and 11 do not deserve death sentence
but other accused who have been sentenced to death also
do not deserve death sentence since the case can not be
termed as rarest of rare case.
witnesses we would like to deal with the medical evidence
posted at Sihora Rural Hospital and was deputed at Mohadi
Rural Hospital for the period April to November, 2006. He
conducted the post mortem on the same day. He found the
following external injuries.
ii) Incised wound over the right parietal bone 3 x 1 x
0.5 c.m.
iii) Marks of strips of chain over the middle half of the
right thigh extending from the lateral surface to the
frontal aspect horizontally 15 x 1 cm..
iv) Marks of signs of chain over the right middle half
of the right thigh above the injury No. 3 parallel to the
injury No. 3 having size 10 x 1 cm..
v) Marks of strips of chain over the left thigh lower
1/3 frontal aspect 3 x 1 cm. In size.
vi) Contusion over mandible middle part 3 x 1 cm.
In size.
vii) Contusion over the left hand 4 x 4 cm. In size.
30
viii) Contusion all over the left forearm with collies
fracture left side.
ix) Marks and strips of chain extending from the
above of the mid clavicular line to the lower end of
stern um on chest about 15 x 1 cm..
x) Contusion over the chest, left side at the level
10th to 12th rib about 3 x 2 cm. In size.
xi) Contusions over the back of chest right having
size 7 x 5 cm. At the level of scapula.
15A. All those injuries were ante mortem. Injury Nos. 1
and 2 were on vital parts of that deadbody. These injuries
No. 1 and 2 were sufficient in ordinary course nature to
cause death. Injuries nos. 3,4, 5 and 9 could have been
caused by giving blows of cycle chain. Rest of the injuries
could have been caused by hard and blunt object.
15B. On internal examination of dead body, he found
the following injuries.
cause of death was due to intracranial haemorrhage due to
signature on the same.
body of Roshan Bhaiyalal Bhotmange was referred to him
for post mortem which was conducted by him on the same
injuries.
ii) Contusion over the right medial surface
of the ankle 2 x 2 cm in size.
iv) Contusion over the right side abdomen
at midelavicular line 3 x 2 cm. In size.
v) Lacerated wound over the floor of the
32
right eye 2x2x1 cm deep with fracture floor of
the right eye.
vi) Contusion over the right eye.
viii) Lacerated wound over the frontal bone
right side 2 x 0.5 x 3 cm. Insize having
fracture at the frontal bone.
ix) Lacerated wound on the back of head
6 x 1 x 1 cm extending from the right siide to
left side of occipital bone.
15E. All these injuries were ante mortem. Out of these
injuries, injuries Nos. 8,9 and 10 were on the vital parts of
body and were sufficient in the ordinary course of nature to
cause death. All the injuries could have been caused by
hard and blunt object and were sufficient in the ordinary
course of nature to cause death.
On internal examination of dead body of Roshan
Bhotmange he found the following injury.
i) Haemorrhage under the scalp at right
frontal bone beneath external injury no. 8.
found the following injuries.
i) Abrasion over the right knee, a) 5 x 2 cm.
In size; b) 2 x 2 cm in size over patella.
ii) Contusion over the shin of right tibia 8 x
w cm in size lateral surface.
iii) Contusion over the chest 10 x 5 cm over
left side from the medial sternal end to
midclavicular line.
v) Contusion over the right lower chest 3 x
2 cm.
vi) Abrasion over the left knee 4 x 1 cm. In
size over patella.
vii) Abrasion over the ankle lateral surface a)
3 x 2 cm. b) 2 x 1 cm right side.
x) Lacerated wound over the lateral surface
of left eye 3 x 0.5 x 1 cm. in size.
34
xiii) Lacerated wound over and above te right
ear at the region of right temporal 1 x 1 x 1
cm. in size.
xiv) Lacerated wound over the back of head
at the occipital region 4 x 2 x 1 cm. in size.
xv) Fracture of vault of scull extending from
the lateral canthus of left eye to the
midparietal suture about 15 cm size.
All these injuries were ante mortem. Injuries nos. 9 and
11 to 15 were on the vital parts of body and were sufficient
in the ordinary course of nature to cause death. The
injuries could have been caused by hard and blunt object.
On internal examination of dead body of Sudhir
Bhotmange, he found haemorrhage under scalp present at
left front to parietal region which corresponds to external
injury no. 15.
The probable cause of death of Sudhir was due to
intracranial haemorrhage due to head injury. Accordingly,
he issued post mortem note Exh. 122. He confirmed its
contents as true and identified his signature on the same.
found the following injuries;
ii) Incised wound left temporal side obliquely
for 4” x 0.5 in size.
iii) Incised wound right lateral side, shin of
tibia upper 1/3, 5 x 3 x 3.5 cm in size.
iv) Incised wound over the face below right
eye 2 cm below 1 x 1 x 0.5 cm in size.
v) Incised wound over the right temporal 3
x 2 x 1 cm in size.
vii) Contusion over the left knee joint 5 x 2
cm. in size with fracture left knee joint.
viii) Incised wound over the base of the right
knee with fracture base of phalanx 1 x 1 x 1
cm.
xii) Marks of strips of chain over the left side
of the chest above the left breast 10 x 1 cm.
xiii) Contusion over the right middle half of
lower leg 3 x 2 cm in size.
xiv) Contusion over the left thigh middle half
of the frontal aspect 3 x 2 cm in size.
xv) Abrasion over the lower 1/3 of the left
leg 2 x 1 cm. in size.
xvi) Abrasion over the lower 1/3 of right leg
3 x 2 cm in size.
16B. All these injuries were ante mortem. Injuries nos.
1 to 5 were on the vital parts of the body and were sufficient
in the ordinary course of nature to cause death. Injuries 1
blunt object. Injury nos. 11 and 12 could have been caused
by giving blows of metal chain.
iv) Fracture on right frontal bone, which also
corresponds to injury no.1.
16D. The witness further deposed that in all four dead
bodies, he found semi digested food at small intestines and,
examination he admitted that incised wounds can only be
external injuries 1 to 5 and 8 as mentioned in column no.
17 of the post mortem report of Surekha Bhotmange were
external injuries no. 1 and 2 as mentioned in column no. 17
caused by sharp and hard weapon. However, he denied the
dash of the body against the canal. He admitted that there
rough and blunt surface. He further deposed that the chain
marks are also known as ligature marks but he did not find
mentioned in post mortem reports of Roshan and Sudhir
word “intracranial” because he forgot to write the same. He
no. 7 of post mortem report of Priyanka Bhotmange at its
bottom is 30.9.2009 and there is over writing on that date.
He denied that initially the date 1.10.2006 was written and
shown the death certificate which was issued by him. The
witness stated that the date mentioned in it at bottom was
30.9.2006 and not 30.8.2006. This certificate was marked as
place of date of page no. 7 of both the post mortem notes of
provisional certificate of death is given on the basis of the
notes of injuries in order to enable the investigating agency
bodies were handed over. He denied that on 1.10.2006 he
report and then conducted another post mortem. Witness
volunteered that he had conducted three post mortems one
40
after the other and thereafter scribed final post mortem
reports. He admitted that at page no. 8 of the post mortem
of Priyanka he had corrected the earlier date of 1.10.2006 to
30.9.2006. He further stated that it was not necessary that in
Bhotmange was sign of decomposition.
Government. He admitted that as he had conducted those
post mortems he was terminated alleging that his work was
conducting post mortem. Other three persons died about
30 to 34 hours before conduction of their post mortem. He
approximately. He denied the suggestion that he had not
bodies.
17. The evidence of the above witness, which has not
been shaken on material aspects in the cross examination,
stand corroborated by inquest panchanamas Exhs. 91, 86,88
and 87 of Priyanka Bhotmange, Roshan Bhotmange, Sudhir
have not been seriously disputed. Thus, the prosecution has
died homicidal death.
18. The learned counsel for the accused and learned
42
Special P.P. for CBI have cited several authorities in support
between medical and ocular evidence, etc..which we have
referred hereinabove. We do not propose to deal with the
propositions for which the authorities have been cited.
accused nos. 1,2,6 and 7.
ii) In case of material contradictions in the
testimonies of prosecution witnesses the
accused are entitled to acquittal.
vi) The evidence of a witness full of material
contradictions does not deserve any
credence.
appearing for accused nos. 2,6,7 and 11.
ii) When investigation is slipshod, benefit must go
to the accused;
iii)Unexplained delay in recording statement of eye
witnesses creates doubt upon the prosecution
case;
iv) Testimony of an interested witness needs careful
and close scrutiny;
44
v) The evidence of a witness full of material
contradictions on vital aspects has to be
rejected;
vi) No interference in appeal against acquittal if two
views are possible;
vii) Proof of motive though not necessary
if there is direct evidence, the absence of motive
is relevant in deciding complicity of the accused
in the commission of crime.
viii) Failure to prove motive assumes
importance if there are other circumstances
creating doubt about prosecution case.
ix) Death sentence is to be imposed in rarest
of rare case.
authorities relied upon by Mr. Khan, learned Spl. P.P..
i) Normal discrepancies in the evidence of the
witnesses are not fatal to the prosecution case;
iv) If there is cogent and strong evidence, mere
wrong recording of time of lodging of First
Information Report is not fatal to the prosecution
case;
v) Failure to name one or more accused in
FIR is no reason to disbelieve the evidence of eye
witness if it is trustworthy;
vi) Relationship is not a factor which would
affect the credibility of a witness;
ix) The evidence of a hostile witness need not
be rejected in toto;
x) The conviction can be based on extra judicial
46
confession, if it is made voluntarily, without
coercion, influence or pressure;
xi) Evidentiary value of extra judicial confession
must be judged having regard to the circumstances
in which it was made and the credibility of the
witness who testifies thereto;
xii) Confession can be made even to a private
person or a Magistrate.
evidence.
witnesses examined by the prosecution to prove complicity
of the accused in the crime. The prosecution examined five
witnesses claiming to be eye witnesses viz. Mukesh Pusam
Bhaiyalal Bhotmange (P.W.17) who lodged first information
Bhotmange is not an eye witness to the actual incident of
house he ran away from the spot.
23. Mukesh Pusam (P.W.2) deposed that on 29.9.2006
Jagdish and saw that 1012 persons were standing in front of
No.1 Gopal, accused no.2 Sakru, accused no.3 Shatrughna,
accused no. 6 Vishwanath, accused no. 7 Ramu, accused no.
come out of her house. Surekha then came out of her house
and set fire to her cattle shed to ward off the accused. Then
she ran away towards triangular open space at back side of
her. Accused no. 8 Jagdish caught Surekha, pulled her hair
and dragged her to a nearby drain and dipped her in it 23
with chains and killed her. They then brought the dead
48
body to Dhusala road situated nearby. Then those persons
shouted to kill other members of Surekha's family. Sudhir
Bhotmange then came out of his house in underwear and
ran towards Dhusala road. Then those accused chased him
After that those accused found Roshan Bhotmange at cattle
shed of Ramdas Khandate. Roshan told them that he did
not cause harm to anyone and so he should not be beaten.
Roshan, then ran towards borewell. Those accused chased
him and caught him near bore – well and beat him by
bicycle chains and sticks and killed him. Thereafter, those
accused No. 3 Shatrughna and accused no. 7 Ramu dragged
other two dead bodies. Thereafter, accused no. 7 Ramu and
accused no. 9 Prabhakar shouted that if anyone would tell
anything against them then they would meet the same fate
as those four persons. Thereafter, this witness came to his
Sakru, accused no. 3 Shatrughna, accused no. 7 Ramu and
accused no. 9 Prabhakar followed that bullocks cart which
was taken towards village Kandri.
23A. In crossexamination he admitted that he did not
In crossexamination it was suggested to him that on seeing
some persons in front of the house Surekha set fire to her
cattle shed and before that these persons were arguing with
admitted that there was little rain and no electric light at
that time. The witness also admitted that he had contested
the election and lost by two votes and at that time accused
had helped the opponent. The witness deposed that he first
direction and saw 1012 persons were standing in front of
50
the house of Surekha. In crossexamination the omission
Magistrate, First Class to the extent of presence of 10 to 12
was proved by the defence is that Surekha ran towards the
compound which was in opposite side and on the basis of
the learned Magistrate that at that time there was little rain
and no electric light. It was also brought on record that the
assaulted by which weapon viz. stick, cycle chain or by kicks
and fists blows. Another omission visavis the statement
made to the police which has been proved is that he did not
state that Sudhir came out of the house in underwear and
ran towards the road towards his field. However, said fact
visavis the statement made to CBI is that he had not stated
that accused were searching for Priyanka but this version is
51
found in the statement made to the learned Judicial
was her daughter. Having regard to the fact that Priyanka
was admittedly the daughter of Surekha the version of the
witness that the accused were asking for Priyanka needs to
omission which has been brought on record is that he had
threatened other persons of the locality after the incident.
Close scrutiny of the evidence of the above witness though
omissions visavis his earlier statements, in our considered
opinion, same can not be said to be such as to discredit his
Bhotmange (P.W.17).
statement, the testimony of such witness does not inspire
52
confidence. In the present case, admittedly after the dead
made and in all 46 persons were arrested. According to the
State CID. Even the State CID did not carry out the
investigation in proper direction and, therefore, ultimately
the State Government handed over the investigation to CBI
35 persons who were in custody which was granted by the
persons from the village people were not ready to come out
commission of the crime. In the present case, upon close
scrutiny of the entire evidence of Mukesh we find it difficult
to accept the defence version that he was not present on the
spot on the date of the incident as deposed by him or that
he was not an eye witness to the incident. No doubt there
However, they would not destroy his entire evidence. It is
difficult to accept the defence version that his presence on
the spot is doubtful in view of the statement made by Mr.
Vinayak Susatkar (P.W.25) the first investigation officer who
deposed that his investigation reveals that Mukesh Pusam
left the house on 29th September, 2006. The statement of Mr.
testimony of Mukesh Pusam. Moreover, we are also unable
him to see the incident since there was little rain and
darkness. The incident had occurred at about 6 to 6.30 p.m.
54
on 29.9.2006 and it is difficult to hold that only because the
witness stated that it was dark he was not in a position to
identify the accused from a close distance.
25. Another eye witness on which prosecution relied
deposed that he on hearing shouts came out of the house
and saw accused nos. 1 to 3, 6 to 9 and 11 in front of the
armed with sticks and some were armed with chains. They
shouted that Mahar caste people should be ousted from the
village and then Surekha came out of her house and set fire
to her cattle shed. Thereafter, accused Jagdish caught hair
of Surekha and dipped her in the drain. Thereafter, accused
nos. 1 to 3, 6 to 9 and accused no. 11 beat her to death.
Then Sudhir came out of his house in underwear and those
accused chased him and caught him and beat him to death
Thereafter, accused shouted to search for other members.
Roshan said that he should not be killed as he did not cause
harm to any one but the accused did not pay heed. Those
accused started beating him. So he ran away towards hand
hand pump and beat him to death. Then he heard shout of
Priyanka in agony and thereafter accused no. 7 Ramu and
while accused no.2 Sakru and accused no. 8 Jagdish dragged
dead body of Priyanka where dead bodies of Surekha and
brought there and then the accused kept those dead bodies
on that bullock cart. Accused no. 8 Jagdish was riding that
bullock cart which proceeded towards Kandri.
25A. In crossexamination he stated that his house was
visit the house of Bhayyalal since he used to treat Surekha
distance of about 30 ft. from his house and stated that it was
about 10 ft. away. He also admitted that deceased Roshan
and Sudhir were friends of his sons Mangesh and Kamal He
20.9.2006 and he was having severe pain in joints and he
stated that he could not walk and he was taking treatment
village between the period 20.9.2006 to 5.12.2006. He also
anything. He admitted that after 45 days of the incident 23
police outposts were made but he did not know whether
any police officer from CID used to come to the outpost. He
admitted that he did not tell anything about incident to the
leaders, journalists or the social workers and the reason was
that he was suffering from illness and as such he did not call
those persons. However, in cross examination he admitted
was hiding and the cowshed in the field was not visible to
him from the place near his house. He stated that he could
57
not see Roshan at the house of Bhotmange. He further
stated that he had stated to CBI that Roshan was found at
statement to CBI was correctly recorded. Similar statement
was made to CBI that Roshan ran away from there and
hand pump and that he was beaten to death and the same
state so to the learned Magistrate since he did not ask him.
He was confronted with the statements made to Magistrate
killed. The witness could not give any reason for the
Magistrate that the accused found Roshan at the back side
confronted with the statement made to Magistrate wherein
he had not stated that Jagdish and Vishwanath Dhande told
that Mahar caste people should be ousted from the village
and omission was duly proved.
Magistrate were brought on record.
i) That he did not tell that all the accused
ran after Surekha;
ii) The bullocks of bullockcart were red in
colour.
recorded. He further deposed that at the time of incident
he was not able to run, to jump and to climb. He denied
suggestion that he had not seen any of the accused beating
that since Mukesh Pusam who was also belonging to the
same caste has lost his election by two votes he had grudge
he also denied the suggestion that CBI had offered money
and a job in the village and, therefore, he deposed against
the accused. He denied that he was facing prosecution for
drinking liquor. The witness was shown one certified copy
of the statement (Exh. 275) bearing his signature. He was
shown another application (Exh. 276) made by him to the
Collector for his rehabilitation. The witness admitted that
application having his signature. He produced the same at
Exh. 278. The witness stated that he deposed in the court
further deposed that the Social Welfare Officer had shown
to him some agricultural land which would be immersed in
Gose Khurd Dam Water and, therefore, they did not like the
protection after he complained to the Police about threats.
In reexamination on behalf of the CBI he stated that he had
given application for rehabilitation as he faced threats from
the relatives of the accused and for no other reason and he
had expressed threats to his life.
fact that his house was very close to the house of Bhaiyyalal
it was quite natural for this witness to witness the incident
of assault on deceased. Insofar as the submission made by
the learned counsel for the accused that this witness as well
provide plots is concerned, we find merit in the submission
two witnesses to get rehabilitated on the ground that they
applications made by the two witnesses for rehabilitation as
Therefore, in our considered opinion, the mere fact that two
they were facing threats from the villagers and could not
carry out any work in the village would not be a ground to
disbelieve their version on oath. Suresh Khandate (P.W.3)
though was suffering from Chicken Guniya, it is difficult to
hold that he was not in a position to come out of his house
and see the incident. Testing their evidence on the touch
that, the evidence of both the witnesses i..e Mukesh Pusam
nos. 1 to 3, 6 to 9 and 11 in the commission of the crime.
Sudhir, Roshan and daughter Priyanka. On 29.9.2006 in the
evening he returned to his house and thereafter he went to
heard shouts from Toli area so he went to that area. He
Dhande was possessing one stick and Shatrughana Dhande
obstructed Surekha Bhotmange near a drain. Jagdish then
Vishvanath and Shatrughana Dhande came there from the
back side portion of the house of Bhaiyyalal and started
Ramu was holding one stick and Shishupal was holding one
Prabhakar Mandalekar, Gopal Binjewar and Sakru Binjewar
came there from the back side portion of the house of
Bhaiyyalal. Prabhakar Mandlekar and Gopal Binjewar were
having nothing in their hands. There was a wooden stick in
Surekha. Then all those persons killed Surekha by beating
her. He did not go to see whether she was alive or dead.
Beating took place near a drain and beside a cow dung pit
situated at the back side portion of the house of Bhaiyyalal
towards left side. The distance between that drain and cow
dung pit is 3 4 feet. Witness was shown the map (Exh. 54).
Dhusala in an underwear. Jagdish Mandalekar, Vishwanath
Binjewar caught Sudhir Bhotmange in front of the house of
the place where Surekha was kept. Roshan, second son of
Bhaiyyalal was hiding himself in a cattle shed situated at the
back side of their house. All those persons caught Roshan
who had escaped and ran towards the hand pump (bore
alive or dead. Priyanka, daughter of Bhaiyyalal was hiding
above referred persons brought her out of that cattle shed
and assaulted her by giving blows of sticks, chains and by
uniform. The witness claimed that he saw all those persons
and Surekha were kept. Sudhir and Roshan were beaten by
sticks, chains, fists and kicks.
26A. When the incident was going on, 30 to 40 persons
that if some one would tell their names then he will be also
beaten like them. Thereafter, he went to his house as he was
belongs to Mahar caste. Witness claimed that at the time of
identified the persons present in the court as assailants and
stated that he knew them as they were his covillagers.
nos. 3 to 7 and 11, the witness stated that his house is
some times late. He further stated that he did not know
that he did not know whether Khairlanji people were afraid
Sidhharth. He claimed that he had good relations with the
family of Bhaiyyalal but he was not on visiting terms with
about 40 to 50 persons were arrested including his father.
He did not remember whether his statement was recorded
by police after arrest of his father but he admitted that CBI
recorded his statement on 9.12.2006 when his father was in
jail. He further stated that when his statement was recorded
that he was taken to jail four times for identification of
father was in jail he did not identify any of the accused. He
admitted that his statement was recorded by the Magistrate
and that his father was released after CBI filed the charge
sheet. Witness denied that CBI assured him that his father
would be released after 90 days and further assured that if
discharge his father. He admitted that he had stated the
police that he had returned from the field at about 6.30 p.m.
witness stated that it was not correctly recorded. He had not
told the police on 29.10.2006 as to which of the accused was
holding that weapon. He could not give any reason why
this was not found in his police statement.
Bhaiyyalal there were heaps of cow dung and in that area
amongst 40 encircling the house of Bhaiyyalal Bhotmange
because of darkness and stated that it was not so dark. The
witness admitted that during those days there used to be
load shedding for about 8 to 10 hours.
Bhotmange used to prepare bidis also and bidi contractor
Witness admitted that he was active in politics in the village
and that Mukesh Pusam and Suresh Khandate were in his
group in election. He denied that Bhaiyyalal was also in his
panel. He admitted that all the accused used to remain in
called to Andhalgaon Police Station and threatened several
times and was threatened that if he did not give statement
he would also be arrested.
26E. In the cross examination on behalf of the accused
nos. 1, 2, 8 and 9 he deposed that the distance between the
place where he stood to see the incident and the house of
denied the suggestion that from point W1 in sketch (Exh.
that there were houses and some trees besides the road.
However, he denied the suggestion that if some one stood
not be identified. He further stated that he did not tell the
police that from his terrace he had seen that some thing was
correctly recorded. The witness further stated that he could
not identify 40 to 50 persons who had gathered on the spot.
Witness admitted that on the day of the incident there were
showers of rain and the same went up to 7.30 to 8.00 p.m.
but he denied the suggestion that there was heavy rain with
the passage of time. He stated that he did not remember
onwards and that it went up to late night. He further stated
attackers and he could not identify them. He denied the
suggestion that he returned to the village from the field at 6
to 6.30 p.m.. The witness volunteers that he returned back
p.m. he went to the beetle kiosk for taking kharra and saw
70
those persons returning from Kandri. To a pointed
question that he did not see the incident, witness stated that
clearly. Witness volunteered that the Police had threatened
suggestion that Surekha used to file complaints against the
villagers after quarrels. He also denied the suggestion that
implicated under the Atrocities Act. The witness denied the
suggestion that he had named the accused at the instance
of the CBI.
identification of offenders about four times but he did not
he did not tell the incident to them.
statements, the core of his testimony has not been shaken
in the cross examination. It is difficult to accept that merely
because accused were in the opposite camp in election the
witness would falsely implicate them. It is pertinent to note
named in the charge sheet. The attack on the testimony of
this witness on the ground that he could not have seen the
incident of assault on the deceased. Moreover, the accused
were from his village which is a small one. The witness knew
all the accused and it is the case of the witness himself that
they were in opposite camp and as such we find it extremely
frightened and he did not disclose the entire incident to the
not support the police he would be implicated in the case.
arrests were made by the local police and, therefore, we find
account of fear he did not disclose the actual incident to the
police. It was quite natural for the witness to disclose the
considered opinion, mere delay in disclosing the incident to
testimony which clearly proved the complicity of accused
73
in the commission of the crime.
27. The next witness examined by the prosecution is
situated at the distance of 100 to 150 feet from the house of
Bhaiyyalal Bhotmange. He claimed that he was residing at
Khairlanji since his birth. He further deposed that on the
day of the incident he returned from his field and went to
beetle kiosk to take kharra at about 6.30 p.m.. Thereafter,
stood at the back side of the house of Nathuji Khandate and
he saw about 20 to 30 persons standing around the house of
beat her while some other were telling to let her go.
74
Thereafter, he could not see what happened due to
towards the field and he be caught. He also saw 23 persons
running towards Sudhir but he could not identify those 23
Maru Naka (not to beat him)”. Some persons were telling to
beat him but some persons were telling not to beat him.
pump. Then he became frightened and went to his house.
come to the house of Bhaiyyalal Bhotmange but he did not
know anything about beating of Sidhharth Gajbhiye as at
further deposed that the police recorded his statement after
23 days of the incident and CBI also recorded his statement
but he did not remember the date. His statement was also
recorded by the Judicial Magistrate, First Class, Mohadi but
correct. The CBI also recorded his statement but it was not
read over to him. He deposed that he did not know what
surrounding Surekha. He went to the extent of saying that
was not able to recollect about it but he could not give any
know what those persons were having in their hands when
examination on behalf of the prosecution nothing tangible
has been brought on record in support of the prosecution
since the witness denied that he had made statement to CBI
76
as reflected in the statement. The witness was confronted
with the statement to the Magistrate in which he has stated
that he saw Surekha coming out of her house. He admitted
“beat, beat” was correct. However, he stated that he did not
see such incident but he had made false statement before
related to each other and they belonged to Kunbi caste and
Prabhakar Mandlekar and Jagdish Mandlekar belonged to
Kalar caste.
28. We do not deem it necessary to refer in detail the
cross examination on behalf of the Public Prosecutor as well
submitted by both the sides that he was convicted for giving
false evidence. This being the position, we find it extremely
difficult to place reliance upon any of the statements made
behalf of the accused.
audacity to accept that he has made a false statement to the
evidence deserves no credence. In our considered opinion
78
though the principle of falsus in uno falsus in omnibus is
not applicable in India, the same can not be invoked while
convicted for giving false evidence. The testimony of such
witness deserves to be rejected outright. We are, therefore,
extent that he has deposed about the castes of some of the
accused which has not even been disputed by the accused,
has to be rejected.
30. The next witness examined and relied upon by the
prosecution is Premlal Walke (P.W.22). He deposed that he
years. His house is situated at the western side of the house
of Bhaiyyalal Bhotmange. On 29.9.2006 at about 6.30 p.m.
he heard shouts as “Mara Mara” from the side of the house
of Bhaiyyalal. At that time he was busy in preparing for Puja
of Durga Devi. They were shouts of Vishvanath Dhande and
and he did not come out of the house. After some time he
heard words “where are boys”. After some time there was
79
peace and he came out of the house and came up to gate.
He saw one bullock cart passing through the road which is
situated in front of the house of Bhaiyyalal. The bullock cart
was proceedings towards Kandri from the side of Dhusala
road. There were some dead bodies in the bullock cart and
Jagdish Mandlekar was riding that bullock cart. Vishvanath
bullock cart and they were having sticks in their hands. The
bullocks of the cart were reddish in colour. After some time
police vehicle came but since he was frightened he did not
where the family members of Bhaiyyalal Bhotmange but he
feigned ignorance. He further deposed that his statement
was recorded by the Judicial Magistrate First Class, Mohadi.
In cross examination the witness stated that there are about
15 houses in Toli. He was on visiting terms with Bhaiyyalal
Bhotmange but there were no quarrels between Bhaiyyalal
Surekha and her children used to keep fast and used to
come to his house for prasad of Durga Mata. He denied the
80
suggestion that they had come to his house on the day of
about six families of Gond caste and about 34 families of
caste of Kunbi in their locality. Mukesh Pusam was residing
in their locality and he was his brotherinlaw. Mukesh was
residing in front of his house and Suresh Khandate was also
residing in front of his house but he is not his relative but
claimed that on the day of incident he went to his employer
statement in which it was stated that on the night of the
incident he had returned home at 8.00 p.m.. The witness
claimed that police did not record the statement as per his
say. He stated that he had given statement to the Judicial
Magistrate. The witness initially stated that he came alone
come with Malewar Police Constable who was his security
guard. The witness stated that on the night of the incident
81
he did not tell police anything when he came to the village
although they used to come to inquire about incident. CID
statement was recorded by police but he did not tell them
many persons. He denied the suggestion that he was taken
to Mohadi by police for recording his statement. He denied
the suggestion that he deposed against the accused at the
instance of CBI although he did not know anything about
the incident. In cross examination on behalf of the accused
nos. 1,2 , 8 and 9 the witness denied the suggestion that he
could not see properly during the night hours or he could
even if he remains in darkness. The witness admitted that
he had given statement to CBI after two and half months of
the incident. The witness denied the suggestion that he had
participated in the village election or that he had given vote
admitted that he was religious minded and used to worship
regularly. The witness admitted that he could not read and
82
write but he could put his signature. The witness stated that
after the incident many Leaders and Ministers came to the
village for about two months and during that period police
Mr. Gajbhiye as Police Patil of Dhusala but he did not know
his name. He admitted that Gajbhiye used to come to the
house of Bhaiyyalal but he did not know whether Gajbhiye
used to help Bhaiyyalal and his family members. He denied
the suggestion that due to political rivalry with the accused
he is deposing falsely against them.
witness discloses that core of his testimony has not been
shaken in the cross examination and there is absolutely no
reason forthcoming in the cross examination of the witness
named. He specifically named the accused who were found
confidence and there is absolutely no reason to disbelieve
his version that the accused named by him had carried the
dead bodies in the bullock cart on the day of the incident.
83
31. At this stage we would like to deal with the
arguments advanced on behalf of the accused that there is
Shende (P.W.14) who deposed that the incised injuries on
the deceased could not have been caused by hard and blunt
instrument may simulate appearances of an incised wound.
Rentoul's in which it has been stated as under:
31A. Similar view has been taken by the Apex Court in
the case of State of Rajashthan vs. Laxman Singh (2002 (10)
SCC, 65. Therefore, we find it extremely difficult to accept
deserves to be rejected and, therefore, the complicity of the
cogent evidence of the above referred eye witnesses which
clearly proves the complicity of the accused in the crime.
32. We shall now deal with the evidence of Bhaiyyalal
Bhotmange (P.W.17), the husband of Surekha and father of
were the residents of Khairlanji village. He further deposed
that all the accused killed Sudhir, Roshan and Priyanka. On
Incident took place at about 6 to 6.30 p.m.. At that time all
his family members were present in the house. He further
shouting that “Mahar Dhed people falsely implicated us in
away towards Dhusala. He further claimed that out of the
Binjewar, Sakru Binjewar, Jagdish Mandle, Prabha Mandle,
Station on his mobile phone. At about 9 to 10 p.m. he went
to Andhalgaon Police Station to lodge report. At that time
he was in a frightened condition and as such he could not
Dhusala.
32A. He further deposed that on the next day i.e. on
confirmed its contents as correct. He further deposed that
on 30.9.2006 dead body of Priyanka was found which was
shown to him at Mohadi Government Hospital. He went to
Mohadi Hospital at the instance of police and saw the dead
body of Priyanka which was in a naked condition with many
87
injuries of sticks and chains.
Surekha , Roshan and Sudhir. He went near the stream after
that time police had already prepared the panchanama. He
had seen the dead bodies in Mohadi Government Hospital
and bodies were having injury marks of sticks and chains.
Blouse of Surekha was in torn condition. He identified the
white colour blouse (article 25) and blue skirt (article 24)
which were worn by Priyanka. He identified the petticoat
(article 36) and red colour blouse (article 35) as those of
(article 37) and white colour banian (article 38) as those of
Roshan and the under wear(article 39) which was worn by
Sudhir at the time of incident. He further deposed that on
Siddharth Gajbhiye at Khairlanji village. At that time he was
present in his house since he was ill. Thereafter, Surekha
and Priyanka brought Siddharth at their house to give first
aid. On 14.9.2006 statements of Surekha and Priyanka were
houses and there are three houses of Mahar caste including
his house. The other two houses are of Shri Khobragade and
Shri Meshram and his children only were taking education.
Khairlanji. The villagers wanted right of way from his field
and as per the order of the Tahsildar Mohadi he had given
15 feet of land. He identified his signature on printed FIR
(Exh. 124).
32C. In the cross examination on behalf of the accused
1,2,8 and 9 he admitted that he had not mentioned in the
report (Exh. 133) that villagers were shouting “Mahar Dhed
claimed that he did not state so since he was in a frightened
condition. He did not remember whether his statement was
twice on 29.9.2006. He admitted that he had not told the
CBI that villagers were shouting as “Mahar, Dhed” and that
deposed that he had not mentioned in the report (Exh. 133)
that villagers had come to his house with sticks and chains.
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He admitted that in the report (Exh.133) names of Gopal
Dhande, Ramu Dhande, Shatrughna Dhande, Purushottam
Mandlekar was not mentioned in the report (Exh. 133) and
admitted that he had not stated in the report (Exh. 133) that
he was frightened due to fury of mob (omission is in respect
of fury of mob). Similarly, he admitted that in the report he
had not stated that he met Siddharth and he could not give
any reason for the same. Similarly, he could not state as to
why the fact that Siddharth had made a phone call to
mentioned in the police report. Similarly he could not give
any reason as to why in the report it was not mentioned
that he had gone to house at 4 to 5 a.m. and he found the
portion marked 'A' of the report which shows time of his
return to the house as 6.00 a.m. was not correct. He further
stated that the report (Exh. 133) was scribed by the petition
90
writer who resides in front of Andhalgaon Police Station.
The witness was confronted with the statement to CBI in
which he had not mentioned the names of the attackers but
he could not assign any reason for not finding the same in
names he has not stated any other names to police, CID and
CBI. He was confronted with the statement made to Police
mentioned but he could not assign any reason for the same.
year and there was no electric meter in his house. His son
relative before the day of the incident. He stated that he was
which is at the distance of 20 to 25 km from Khairlanji. He
further stated that he did not know whether he returned to
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Khairlanji on the next day of the incident. He denied the
suggestion that no incident had taken place in his presence.
and 11 he stated that he obtained his caste certificate and
those of his children before the incident. He admitted that
his family members had good relations with the family of
Mukesh and Suresh Khandate. He admitted that there is a
had grown in that cow dung in September. In further cross
examination, he stated that on the day of incident Surekha
season.
32D. In cross examination on behalf of the accused no.
10 he stated that he went to Khairlanji on foot on 30.9.2006
Station at about 9 to 10 a.m. and he got his report scribed
submitted report to Police at about 11.00 a.m.. He was told
by the police that on 30.9.2006 itself they had registered the
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offence. Witness claimed that after lodging report he went
to Mohadi Government Hospital. He stated that the portion
marked 'A' in the statement recorded by CBI on 7.12.2006
which shows that he went to Mohadi Government Hospital
Police Station was not correctly recorded but he could not
about the incident and, therefore, he did not give statement
recording his statement.
33. Perusal of the report (Exh. 133) which the witness
who were not charge sheeted by CBI. Perusal of the Exh. 134
There is absolutely no explanation either from the witness
or from the Police Inspector S.S.Bharne (P.W. 23) as to how
in the printed FIR some more names were added.
unfortunate husband and father of the deceased has been
20.40 hours. No doubt FIR is an important document in a
criminal trial to test the veracity of the prosecution case but
Police Station and also by CID and, therefore, investigation
members. He claims that after seeing the crowd he ran
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away and went to Siddharth Gajbhiye and spent night with
being the position, mere fact that the names of all the
would not be fatal to the prosecution case. No doubt there
are certain contradictions and omissions in the testimony
not sufficient to discredit the evidence of the eye witnesses
particularly having regard to the fact that Bhaiyyalal himself
does not claim that he was an eye witness to the incident of
assault on his family members. The evidence of this witness
present near his house on 29.9.2006 in the evening. Mere
fact that the names of other accused are not found in the
frightened condition even when he went to lodge report can
not be lightly brushed aside. However, his version that the
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assailants who had gathered on the spot were shouting that
“Mahar, Dhede people falsely implicated us in police case''
can not be accepted in view of the omissions visavis his
Therefore, the fact that the names of all the accused have
not been mentioned in the report and that the report (Exh.
complicity of the accused in the commission of the crime.
The evidence of this witness also clearly establishes that he
identified the dead body of Priyanka on 30.6.2006 and those
of Surekha, Sudhir and Roshan on 1.7.2006.
Lede (P.W.16). Anil and Sunil are brothers and Sunil was
Anil deposed that on 29.9.2006 at about 9 p.m. while he was
going to his house accused no.2 Sakru met him on the way.
not possess the same. Thereafter, he asked Sakru (A2) as to
murdered them to which Sakru replied that he along with
accused 2,3,7,8,9 and 11 had committed those murders. It
is extremely difficult to place reliance upon the evidence of
this witness in respect of extra judicial confession alleged to
have been made to him by Sakru (A2). There is absolutely
Sakru so as to place complete confidence in Anil justifying
such disclosure. There is absolutely no reason for Sakru to
confession is made to a person of confidence or to a person
from whom the accused wants some help to get out of the
trouble. This is not a factual situation in the present case.
been made about one and half month after the incident.
The circumstances in which the witness claims that Sakru
when Sakru met him he was in a drunken condition which
has been accepted by the witness. Therefore, in any case
placed by the prosecution can not be said to be voluntary to
has admitted that at the time when Sakru met him he was
factors, we find it extremely difficult to place reliance upon
the extra judicial confession alleged to have been made by
Sakru (A2) to Anil Lede. In any case, Mr. Jaiswal is justified
consuming liquor in arrack shop on the ground that same
could not be said to be voluntarily and truthful.
deposed that on 30.9.2006 at 6.00 to 6.30 a.m. he opened his
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tea stall. Then accused no. 8 Jagdish came there.
credit in the morning hour. Jagdish told him that he had Rs.
why the shirt was burnt, Jagdish told him that he had killed
those clothes with that cash. Gopichand (P.W.15) who was
present at the stall at the relevant time has also claimed that
he had heard such conversation between Sunil and Jagdish.
In crossexamination, Sunil admitted that when he refused
to give tea to Jagdish, he became angry and he left his shop
same crime and they claimed that they had told the police
about the extra judicial confession made by Jagdish but no
attention was paid to the same. Upon close scrutiny of the
difficult to place reliance on the evidence of Sunil as well as
Gopichand that Jagdish had made extra judicial confession
99
as deposed by them. It is well settled that extra judicial
confession should be voluntary and truthful. In the present
case, we find it extremely difficult to accept the version of
the two witnesses about extra judicial confession alleged to
have been made by accused no. 8. It is highly improbable
that Jagdish, upon being asked by Sunil as to why Jagdish
disclose him the reason for burning shirt. It is not the case
of the prosecution that Sunil was a close friend of Jagdish or
that he had confidence on him so as to disclose to him that
difficult to place reliance upon the extra judicial confession
alleged to have been made by Jagdish (A8) to Sunil (P.W.16)
in presence of Gopichand (P.W.15).
commission of the crime. According to the accused, there
was absolutely no motive to commit ghastly crime for which
There was altercation between both of them and Siddharth
Priyanka and then proceeded towards Kandri on his motor
Siddharth lodged report after two days which was registered
filing of the report by Siddharth and stated that he recorded
incident accused shouted that Surekha got them entangled
accused suspected that they were implicated in the crime
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of assault on Siddharth by Priyanka and Surekha
Bhotmange by claiming to be eye witnesses to the incident
crime. No doubt as held by the Apex Court the motive is
double edged weapon and proof of motive by itself can not
be the ground to hold the accused guilty. But, the evidence
reference clearly proves complicity of the appellants in the
commission of the crime. Proof of motive lends assurance
to the prosecution case. Therefore, we have no hesitation to
motive on the part of the accused to commit the crime.
evidence discloses that in the morning hours on 30.9.2006
chains and sticks and since he was frightened he ran away
from the spot. He further deposed that thereafter he and
that they wanted to lodge compliant. Head Constable made
phone call to P.S.O., Bharne who gave message that they
should be kept waiting there and that he would return after
some time. After some time Shri Bharne came to the Police
Station and told them that one body of a girl was found
having name 'Priyanka' engraved on her hand as 'Priyanka'
and they should come there for identification and thereafter
they went to Mohadi Government Hospital along with Mr.
and there were no clothes on the person of the dead body
Andhalgaon. He went to Andhalgaon where he did not find
any dead body so he went to Mohadi Government Hospital
Sudhir in a tractor. After looking at the dead bodies he felt
giddiness. The witness has been crossexamined on behalf
of the accused but nothing tangible to shake his testimony
Bhotmange (P.W.17).
that Surekha was real youngest sister of his mother and she
years back and they used to reside at Khairlanji along with
deposed that on 29.9.2006 at about 5.30 p.m. he received
phone call from Surekha Bhotmange and she asked him to
come to Khairlanji. She informed him that 12 persons who
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were arrested in the case of Siddharth Gajbhiye were
told that these persons with sticks boarded a tractor to go to
She told him that because of this she and her family
come to Khairlanji. He told her that it was evening and he
was unable to come there and that she should come to their
village to which she stated that she could not come there.
He told her to complain to Andhalgaon Police Station but
she was giving statements against the villagers if anything
him that he was waiting in Andhalgaon Police Station and
he should come there. He further told that Bhaiyyalal was
further deposed that he went to Andhalgaon Police Station.
After some time P.S.O. Bharne came and told that dead
body of the girl was found in a canal at Wadegaon village
again on the next day he went to Andhalgaon Police Station
where he was informed that three dead bodies were found
in the limits of Wadegaon. Thereafter he went to the spot
necessary to discuss the evidence of this witness being of
formal nature and the same proves that Surekha had given
Police Station on 30.9.2006 and he had identified the dead
bodies of Priyanaka, Surekha, Sudhir and Roshan.
40. The prosecution also examined the Investigating
106
Officers viz. Milind Bansod (P.W.13), Vinayak Susatkar
(P.W.32), Maroti Patil (P.W.33), Nandkumar Kutti (P.W.34)
contradictions and omissions in the complaint visavis the
statements recorded by the respective witnesses have been
proved by the accused. The prosecution also examined Shri
CBI. His evidence proves that he recorded the statements
of Mahadeo Zanzad (P.W.20), Premlal Walke (P.W.22), Anil
Pusam (P.W.2).
41. Insofar as the submission advanced on behalf of
noted that unfortunately the crime was not investigated by
Government handed over the investigation to the CBI only
Khairlanji soon after incident it can be safely inferred that
police the witnesses were not ready to come forward to give
statements which was quite natural because of the fear that
Therefore, considering the situation existing in the village
Khairlanji after the incident till the CBI took over the
delay by itself would not be a factor to discredit the version
of the eye witnesses. We have tested the evidence of the eye
witnesses on the touch stone of probabilities having regard
find that the conviction recorded by the learned trial Judge
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who have been convicted by the learned trial Judge for the
offences under Sections 302 read with Section 149 of Indian
Penal Code, Section 148 read with Section 149 of the Indian
Penal Code and 201 of the Indian Penal Code does not
quote what the Apex Court observed in the case of Krishna
Cases (Criminal) 1220. The Supreme Court observed thus;
We would like to quote what the Apex Court has
observed in the case of State of Panjab vs. Jagir Singh Baljit
Singh and Karam Singh (AIR 1973 S.C. 2407). The Apex
observed in para 23 as under:
We have reappreciated the evidence bearing in
come to the conclusion that the conviction of the accused
nos. 1,2,3, 6 to 9 and 11 for the offences for which they have
been convicted does not warrant interference by this court.
42. In our opinion, the prosecution has been able to
Priyanka, Roshan and Sudhir with sticks, cycle chains, fists
and kicks blows and caused their injuries which resulted in
accused nos. 2,3 and 6 to 9 were involved in disposal of the
Kandri.
offences under Sections 3(1)(x), 3 (1)(xi), 3(2)(v) and 3(2)(vi)
read thus;
“3(1)(x) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe
intentionally insults or intimidates with intent
to humiliate a member of a Scheduled Caste
or a Scheduled Tribe in any place within
public view;
43A. The learned trial Judge held that the assault on
four deceased was not on the ground that they belonged to
Scheduled Caste but the motive for the commission of the
on Siddharth Gajbhiye. The learned trial Court also placed
ingredients of offence under the Act failing which crime can
not be registered or investigated. No doubt the earlier view
taken by this Court has been reversed by the Full Bench of
this court placing reliance upon the Judgment of the Apex
Court in the case of Ashabai Machindra Adhagale vs. State
of Maharashtra and others (supra). However, the question
hereinabove is accepted the offences under Section 3(1)(x),
3(1)(xi), 3(2)(v) and 3(2)(v) of the Act are made out against
the accused.
43B. In order to attract Section 3(1)(x) of the Act it is
revenge against Surekha and Priyanka because the accused
believed that they were falsely implicated in the assault of
committed not only murders of Surekha and Priyanka but
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of Sudhir and Roshan. Therefore, it is difficult to hold that
accused intended to insult Surekha or other deceased who
admittedly were belonging to Scheduled Caste.
43C. In our opinion, there was no intention on the part
Section 3(1)(xi) of the Act, it is necessary that the accused
not belonging to Scheduled Caste or Scheduled Tribe must
use force to any woman belonging to a Scheduled Caste or a
prosecution has not challenged the acquittal of the accused
for the offence punishable under Section 354 of the Indian
Penal Code.
present case, it is the case of the prosecution itself that the
causing their death. Merely because the deceased belong to
considered opinion, ingredients of Section 3(2)(v) of the Act
are not made out against the accused.
43E. In order to attract Section 3(2)(vi) of the Act it is
knowingly or having reason to believe that an offence has
false. We have already held that the offences under Section
3(1)(x), 3(1)(xi) and 3(2)(v) of the Act are not made out
that the offence under Section 3(2)(vi) of the Act is not made
out against the accused.
submission that the offences under the Scheduled Castes/
Scheduled Tribes Act are made out against the accused. In
Caste/ Scheduled Tribe can be gone into in the course of
State (2008 CRI.L.J., 4369) the Apex Court held that calling
the member of Scheduled Caste as 'Chamar' with intent to
insult or humiliate would amount an offence and whether
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there was intent to insult or humiliate by using word
Allahabad High Court has held that Section 3(2)(v) of the
Act can be pressed into service only for enabling the Court
to pass a sentence of imprisonment for life and fine when
under IPC which is punishable with imprisonment of term
of ten years or more and the provision does not prescribe a
(2004 CRI. L.J., 605) it has been held that mere knowledge
sufficient to prove the offence under Section 354 of IPC and
aggravated form of offence under Section 354 IPC. In our
Khan do not advance the case of the prosecution. On the
contrary, the fact that the CBI has not challenged the
acquittal of the accused for the offence under Section 354
IPC makes it difficult to uphold the challenge of CBI to the
119
acquittal of the accused the offence punishable under
Section 354 of IPC as held in Vidyadharan's case(supra).
filed by the Central Bureau of Investigation challenging the
punishable under Sections 3(1) (x), 3(1) (xi), 3(2)(v) and 3(2)
(vi) of the Act.
sentence of life imprisonment on accused nos.1 and 11 on
2,3,6,7,8 and 9 deserves to be confirmed. The learned Judge
in paragraph nos. 191 to 217 of the Judgment has dealt with
the aspect of sentences to be imposed on the accused and
has made reference to several authorities relied upon by the
rival parties. The learned trial Judge has not awarded death
sentence to accused nos. 1 and 11 on the ground that they
120
were aged 23 and 20 years respectively and as such they
presence of their fathers' actions and also could have been
guided by their fathers. The learned trial court further held
The learned trial Judge has further held that both these
injuries.
6,7,8 and 9 are as follows:
1) All the convicts came together at the
house of Surekha Bbhotmange to commit
crime.
2) The accused came with sticks and iron
chains to commit rioting.
3) All the convicts formed an unlawful
121
assembly with common object to commit rioting
and murders of Surekha Bhotmange and her
family members. Then they acted in unison in
prosecution of common object of their unlawful
assembly.
4) Convicts were furious and were
shouting to search and kill other members of
family of Surekha Bhotmange after killing
Surekha Bhotmange.
5) Victims were unarmed and two of the
victims were ladies.
6) Killings made one after the other by
chasing and surrounding each of the victims.
7) Victims and specially Sudhir, Roshan
and Priyanka did not cause any provocation
at the time of incident.
8) No justification for killing Sudhir
Bhotmange and Roshan Bhotmange who never
caused any harm to convicts.
9) All the victims were severely beaten to
death with many injuries on their persons.
Thereby process of death of each of the victims,
was slow and painful.
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10) There was depravity in the acts of
convicts which includes
a) killing of unarmed Surekha by all the male
convicts with brutality.
b) convicts shouted to search for others.
c) Roshan pleaded his innocence, but he was not
spared. He was chased and killed.
d) Two victims were searched and killed.
e) Accused were threatening others, so that none
should come to rescue of victims and thereby
enjoyed killings.
f) Accused no.2 Sakru and accused No. 8 Jagdish
made extra judicial confession without any
hesitation showing no remorse for committing
such heinous crime.
11. Convicts acted in revolting manner by
killing the victims in presence of mob, without
fear of anyone and acted as if they did heroism.
12. Accused Nos. 2,3,6 to 9 removed clothes
of Priyanka before disposing her severely injured
dead body and thereby wanted to get
123
satisfaction to their sexual eyes at such extreme
circumstances.
were unarmed. Two of them were women and one of them
was physically handicapped. One of the victim was aged 19
under:
a) There was no prior conspiracy to kill all
the four victims;
b) There was no caste hatred for these
killings;
c) First Victim Surekha Bhotmange set fire
to her own cattle shed, which might have
provoked the accused to commit the crime;
d) Accused extinguished the fire;
e) Accused claimed that they were falsely
implicated in crime of beating of Siddharth
Gajbhiye by Surekha and Priyanka;
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f) They are ordinary villagers with no
criminal past; and
g) Their families depend on their earnings.
observed ;
i) The extreme penalty of death may not
be inflicted except in gravest cases
of extreme culpability;
(1983) 3 SCC 470 the Apex Court has held that for deciding
considered which are; i) manner of commission of murder;
socially abhorrent nature of the crime and iv) magnitude of
the crime and personality of the victim of murder.
mentioned the aggravating and mitigating circumstances to
aggravating circumstance no. 10 ( f ) is concerned, we have
already disbelieved the extra judicial confessions made by
accused nos. 2 and 8 and, therefore, the said circumstance
circumstance.
in Bachansingh case (supra) and the factors which are to be
considered while considering the sentence as laid down in
Machhisingh's case we are of the considered opinion that
case for awarding death sentence to accused nos. 2,3 and 6
incident had not occurred on account of caste hatred but
the incident occurred since the accused felt that they were
Gajbhiye by Surekha and Priyanka. Moreover, there is no
the circumstances leading to the commission of the crime
and the past record of the accused, we are of the considered
opinion that accused nos. 2,3,6 to 9 do not deserve death
sentence. However, having regard to the manner in which
the four murders were committed we are of the considered
opinion that all the convicted accused deserve sentence of
imprisonment exceeding 14 years. This Court in the case of
he completes actual term of imprisonment of twenty years.
Judgments of the Apex Court. The Apex Court in the case of
Ram Anup Singh and others vs. State of Bihar (2002) 6 SCC,
686 set aside the death sentence awarded by the trial
and sentenced them to suffer imprisonment for life with a
condition that they shall not be released before completing
undergone by them. Similar order was passed by the Apex
Court in the case of Shri Bhagwan vs. State of Rajashthan
Supreme Court, 143) the Apex Court set aside the death
sentence imposed on the appellant and sentenced him to
undergo imprisonment for life with a further direction that
including the murder held that any remission of sentence
or amnesty on a special occasion announced by the Central
or the State Government shall not apply to the sentence of
imprisonment imposed on the accused.
In the case of Dilip Tiwari and another vs. State of
Maharashtra, ( 2010 Cri. L.J. 905, ) the Apex Court set aside
helpless ladies should not be released unless they complete
25 years of actual imprisonment. The Apex Court made
Ghosh vs. State of West Bengal (2009 AIR SCW 6007) and in
adopting this course.
convicted accused committed the murder of four persons
129
including two persons against whom they had no grudge,
we are of the considered opinion that although the accused
do not deserve death sentence, the interest of justice would
be served by directing that all the accused should not be
already undergone.
Bhotmange, Roshan Bhotmange and Priyanka Bhotmange.
We do not propose to award separate sentences on the said
Bhotmange. In out opinion, interest of justice would be
imprisonment and to pay a fine of Rs. 5000/ each in default
to undergo rigorous imprisonment for one year subject to
imprisonment for the period of twenty five years.
130
51. In the light of the above discussion, we dispose of
the Reference and the Appeals filed by the accused and CBI
in terms of the following order.
(i) The reference made by the learned trial Judge is
rejected. Accused nos. 1 to 3, 6 to 9 and 11 are sentenced to
life imprisonment and to pay a fine of Rs. 5000/ each in
default to undergo rigorous imprisonment for one year with
already undergone.
(ii) The conviction of accused nos. 1 to 3, 6 to 9 and
punishable under Section 148 read with Section 149 of the
maintained.
(iii) The conviction and sentences imposed on accused
nos. 2,3, and 6 to 9 for the offence punishable under section
201 of the Indian Penal Code are maintained.
All the sentences are ordered to run concurrently;
All the accused are entitled to set of the period of
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imprisonment already undergone in terms of Section 428 of
Cr.P.C..
maintained.
171/2009 stand disposed of in the aforesaid terms.
JUDGE JUDGE
patle