The State Of Maharashtra vs Ganesh Shamrao Andekar And Ors.
2007 Latest Caselaw 146 Bom

JUDGMENT

D.G. Deshpande, J.

1. This Appeal is filed by the State against the judgment of acquittal of all the 15 accused respondents, passed by the Additional Sessions Judge, Pune, vide judgment dated 11.5.1989 from offences under Sections 147, 148, 149 read with 302 of Indian Penal Code and Section 302 read with 34 of I.P.C. and acquittal of accused No. 7 under Section 201 of the I.P.C.

2. We have heard the learned APP for the Appellants -State and learned Counsels for the Respondents - original accused.

3. According to the prosecution, deceased Raghunath was residing at House No. 98, Guruwar Peth, Pune, along with his wife Shakuntala (P.W. 13) and daughter Rohini (P.W. 2), Vandana and son Vitthal. Accused were also residing in the same area Guruwar Peth, Pune. There was dispute between the deceased on one side and all the accused on the other side over a common water tap and w.c. which was meant for tenants of the House No. 98. There used to be frequent altercations, quarrels and exchange of abuses between the family members of the deceased and that of the accused. As he was not allowed to take water from common water tap, the deceased took a separate water connection for his use. Some incidents had occurred 10-15 years and 3 years back before the actual incident and therefore there was enmity between the two sides.

4. On 14.10.1986 at about 2 p.m. deceased Raghunath was resting on the cot in front of his house on the ota. Rohini (P.W. 2), Shakuntala (P.W. 13) were taking meals inside. At that time, accused No. 2 - Sham came drunk, gave call to deceased Raghunath and started abusing him. Deceased questioned him. There was altercation between them. In the meantime accused No. 1 Ganesh came followed by accused No. 6 Bhau, accused No.3 Avinash, accused No. 8 Shekhar, accused No. Vijay and lady accused. All of them were armed with deadly weapons. They tried to assault Raghunath. He ran towards Gadikhana chowk, all accused followed him. Rohini (P.W. 2) and Shakuntala (P.W. 13) ran behind the accused. All of them assaulted Raghunath at Gadikhana Chowk. Accused No.1 -Ganesh was wearing a lungi and had a sword in his hand. Accused No. 2 Sham had a gupti, Accused No.3 Avinash had a sword, Accused No. 5 Vijay had a knife and other accused were armed with iron bars and sticks. There is Rajesh Boarding House at Gadikhana chowk and assault took place Opp: Rajesh Boarding House. Accused who were armed with deadly weapons inflicted blows upon Raghunath. In order to ward off the blows, Raghunath made attempts and as a result one of the swords fell down but accused Rukmini gave another weapon to accused No.1 Ganesh and he assaulted the deceased Raghunath. Raghunath suffered injuries and the accused then ran away.

5. According to the prosecution, one Suresh Chavan (P.W.3) was present at the chowk, therefore Rohini (P.W. 2) called the rickshaw of Suresh (P.W. 3) and took Raghunath - her father to Sassoon Hospital, Pune. Attempts were made to save him, but Raghunath succumbed to the injuries and died. Dr. Waghmare (P.W. 16) of the Sassoon Hospital had treated Raghunath but he died at 4.40 p.m. Constable on duty at the hospital informed P.S. Khadak. Mr. Jagadale from P.S. Khadak attached to Mithiganj police chowky saw crowd and women gathered at the police chowky and therefore he was directed by the constable to go to House No. 98, Guruwar Peth, Pune. Constable Jagdale went there but he did not find anything suspicious.

6. In the meantime constable on duty in the Sassoon Hospital was informed by Dr. Waghmare (P.W. 16) when the deceased Raghunath was brought. This information was reduced into writing by Constable Kole in the Khabri Register in the hospital and it was passed on to Police Station Khadak and also to Mithiganj Police Chowky. PSI Lonkar was directed to investigate the matter. He rushed to the hospital. Thereafter panchnama was made and it was also tried to find out whether any report was lodged or not. In the meantime P.I. Kulkarni (P.W. 19), Rohini (P.W. 2) and Shakuntala (P.W. 13) in a police van went to police station Khadak, when P.W. 2 Rohini lodged FIR against all the accused, it was recorded along with forwarding letter Exhibit 72 addressed to Police Station Khadak. Accordingly crime No. 265 of 1986 was registered under different sections of IPC including Section 302 at 18.30 hours at police station Khadak. Then investigation was carried out. Blood stained clothes on the person of Rohini were attached. Rohini (P.W. 2) showed place of occurrence of offence and panchnama was drawn in the presence of panchas. Sample of blood mixed with soil and sample of soil were taken from the spot. Search of the house of Sham accused No. 2 and Rukmini accused No.11 was done. Certain weapons and other articles were seized. In the meantime post-mortem was conducted on the body of Raghunath. Report was received and on the same day accused Nos. 2 and 9 to 14 were arrested under arrest panchnama Exhibit 74.

7. On 15.10.1986 Sandip (P.W. 8) appeared before P. I. Kulkarni (P.W. 19) and had produced one Rampuri knife, kukri, which were given to him by accused Ganesh, Avinash, Bhau and Vijay on the earlier day. Sandip P.W. 8 did so after reading the newspaper report about this incident. These articles were attached under panchnama Exhibit 75 and thereafter four accused viz. Accused No.1 Ganesh, Accused No.3 Avinash, Accused No. 6 Bhau and Accused No. 15 Gopinath came to be arrested under panchanama Exhibit 54. Blood stained clothes of Ganesh - accused No. 1 were seized. Discoveries were made from Ganesh Accused No.1 under Section 27 of the Evidence Act. Blood stained lungi was recovered. Other incriminating articles were also recovered during investigation including weapons from different accused. Their blood samples were taken. All these articles were sent to C.A. and after receiving the report from C.A. Exhibits 84 to 88, charge sheet was filed.

8. The defence of the accused before the trial court was of total denial and false implication on account of previous enmity.

9. In the trial, prosecution examined in all 19 witnesses. Trial court disbelieved the prosecution case and acquitted the accused and hence this Appeal.

10. At the outset, Mr. Chitnis, contended that judgments of acquittal should not be lightly interfered with. If the two views are possible on the given set of facts and the view adopted by the trial court is reasonable and just then findings of the trial court should not be upset. In short, according to him unless the prosecution succeeds in showing that the judgment of the trial court is perverse, the judgment of acquittal should not be touched, modified, changed and altered. We heard the arguments of both the sides keeping in view this submission of Mr. Chitnis.

11. It is true that this appeal is against acquittal and it is also true that if on the given set of facts two views are possible and the trial court has adopted one view, which could be said to be reasonable, just and proper, in the circumstances, then the appellate court should not ordinarily interfere with the judgment of the acquittal. On the other hand, if the reasonings and conclusions of the trial court are perverse then it will be a fit case for the High Court to interfere in the judgment of acquittal. We therefore point out certain conclusions of trial court which circumstances had proved on record, strongly indicate that the reasonings, conclusions and findings of the trial court, are perverse.

12. According to the learned APP, there is sufficient evidence on record to hold the accused guilty, if not, all the accused, some of the accused on the basis of evidence of Rohini (P.W. 2) and Shakuntala (P.W. 13) coupled with the other evidence of discovery, recovery, panchanamas and C.A. Reports. He also contended that the evidence of Suresh (P.W. 3) autorickshaw driver who was along with Rohini (P.W. 2) in carrying the deceased Raghunath to Sassoon Hospital was on record and there is no reason to disbelieve his evidence. He contended that the conclusions arrived at by the trial court in respect of the evidence of these three important witnesses and other pieces of evidence tendered by the prosecution, were totally wrong and perverse and therefore this appeal was required to be allowed. We will consider these submissions at an appropriate stage.

13. On the other hand, Mr. Chitnis, Mr. Hardikar contended that Suresh ( P.W. 3) was not at all a trustworthy witness. According to the evidence of Rohini (P.W. 2), Suresh (P.W. 3) was known to the family since long and therefore Raghunath was carried by Rohini (P.W. 2) in his rickshaw. Nothing prevented Rohini from disclosing his name to the police in the FIR. He further contended that absence of blood stains on rickshaw and on the clothes of Suresh (P.W. 3) and of not holding panchanama of the clothes and rickshaw of Suresh (P.W. 3), is a strong circumstance, creating doubt about the evidence of Suresh (P.W. 3).

14. Mr. Chitnis contended that so far as the evidence of Rohini (P.W. 2) and Shakuntala (P.W. 13) is concerned, the story given by them is highly improper. If Raghunath was surrounded by 15 persons all armed with deadly weapons then deceased Raghunath could not have escaped assault near his house and he could not have succeeded in running towards Gadikhana Chowk without receiving any injury. He also contended that if the accused were really armed with weapons and they were so many in number, they would have finished Raghunath then and there and would not have permitted him to run towards Gadikhana Chowk, the distance is between 500 ft. or one and half kilometre as stated by the witness of the prosecution.

15. Regarding the evidence of Shakuntala (P.W. 13), Counsels for the accused contended that her contention that she was present on the spot and witnessed the incident of assault, is belied by the fact that she did not accompany Rohini to the hospital when Rohini took the deceased Raghunath to the hospital. Mr. Chitnis also contended that there is one injury on the head of the deceased Raghunath as noted in the post mortem report but neither Rohini (P.W. 2) nor Shakuntala (P.W. 13) nor Suresh (P.W. 3) speak about that injury, and, therefore, according to them, this itself is sufficient to create doubt about the testimony of these three witnesses and the prosecution case.

16. Apart from the aforesaid submissions, the contentions raised about FIR, its contents, its timing, its registration, station diary entry and the contradictions appearing therein and also about different discovery, recovery panchanama and also C.A. reports. We will consider this aspect at an appropriate stage.

17. It was also pointed out that deceased Raghunath was an externee and had many criminal cases pending against him and he has entered the Pune area without any order from the Competent Authority. He had many enemies and therefore the assault could have been done by any one else. It was also urged that the incident of assault did not take place at Gadikhana Chowk, Opp: Rajesh Boarding House. Secondly, Rohini (P.W. 2) and Shakuntala (P.W. 13) did not witness the incident but came to know subsequently about the assault and then they cooked up a story of implicating all those who were against them.

18. According to the evidence of Rohini (P.W. 2) and Shakuntala (P.W. 13) the actual assault took place at Gadikhana Chowk, Opp: Rajesh Boarding House. According to the defence, the assault did not at all took place at this place. The trial court relied upon inquest panchnama Exhibit 73 and zerox copy of Exhibit 91 Extract of Station Diary No. 30 dated 14.10.1986 at 17.10 hours in order to come to the conclusion that the assault did not take place at Gadikhana chowk but that it took place near the residential house of the deceased Raghunath. These conclusions are totally wrong and perverse.

19. In order to show that assault had taken place near the house of deceased Raghunath and not at Gadikhana chowk, defence relied upon Exhibit 91. It is entry in the station diary recorded at 17.10 hours and received from Sassoon Hospital. It is mentioned in the entry that on 14.10.1986 at 15.30 hours the gang of Balu Andekar came at the house of Raghunath and beat him. In the inquest panchnama Exhibit 73 same fact is mentioned and therefore counsels for the accused contended that these two documents of the prosecution i.e. Exhibits 73 and 91 when indicate that the assault on Raghunath took place at the house then the evidence of eye witnesses that the assault took place at Gadikhana Chowk was liable to be rejected and was rightly rejected by the trial court.

20. We are not in agreement with these submissions because the counsels for the accused have lost sight of most important part of Exhibit 91 upon which Exhibit 73 to some extent is based. A perusal of Exhibit 91 shows that information to the police station was given by police constable Kolekar who was informed by Dr. Waghmare of Sassoon Hospital and Dr. Waghmare was informed by Rohini (P.W. 2). Therefore the sequence of information becomes, Rohini first informant to Dr. Waghmare. Dr. Waghmare second informant gave information to Police Constable Kolekar and Police Constable Kolekar third informant giving information to the police station. Nothing was shown to us as to what information was given by Rohini to Dr. Waghmare and then by Dr. Waghmare to Police Constable Kolekar. Therefore what Police Constable Kolekar informed to the police station, is hearsay. He being the third recipient of information. In such a situation no inference as suggested by the defence can be drawn that the assault took place at the house of Raghunath. Secondly, the sentence in the Exhibit 91 Gang of Balu Andekar came to the residential house of Raghunath and assaulted him." This sentence does not say that the assault took place at the house. It only shows that Raghunath was assaulted. There is no dispute that initially the accused had gone to the house of Raghunath. So far as Exhibit 73 is concerned, inquest panchnama, firstly, it is immaterial as to where inquest took place and Exhibit 73 further shows that the information Exhibit 91 discussed above is reproduced as it is in the inquest panchnama Exhibit 73 is the background for holding post mortem. It will be clear that what is stated in the inquest panchanma firstly is formal statement and secondly it is based on Exhibit 91. And when Exhibit 91 is itself based on intervention of three informants, as stated above, then no conclusion can be drawn that assault on Raghunath took place near the house. The submission of counsels for the accused is required to be rejected.

21. Evidence of P.W. 17 Sunil Jagdale shows that the incident of assault did not take place near the house of Raghunath. P.W. 17 is the police constable. He has stated that on 14.10.1986 he was on duty at Mithiganj Police Chowky under the jurisdiction of P.S. Khadak from 9 a.m. to 9 p.m. Police Constable Jamdar was also on duty. At about 4.30 p.m. he had gone to Mithiganj police chowky to report, where he saw a crowd of women in police chowky. Head Constable Garule who was in charge informed him that there was quarrel between Andekar and Karale and that P.W. 17 Sunil Jagdale should go to that place. He therefore went to the House No. 98 along with P.C. Jamdar. What he found is most important. He has stated that "Everything was normal. When we reached there the doors of the house of Andekar and Karale were found to be open and nobody inside the house. Nobody was seen in the vicinity." He was there upto 7 p.m. This evidence clearly shows that two constables were present at the House No. 98 of Raghunath soon after 4.30 p.m. and they were there till 7 p.m. But they did not say anything, no untoward incident, nothing to suggest that any incident of the assault on Raghunath or any other type had taken place near the house of Raghunath. If according to the defence, the incident had in fact taken place near the house of Raghunath, then P.W. 17 Sunil Jagdale would have found the situation totally abnormal and not in any case normal.

22. Apart from this, the most important aspect of the matter is the spot panchnama was made at Gadikhana Chowk, where blood stains were noticed and earth soiled with blood was recovered from that spot. There is no panchnama of any spot near the house of Raghunath. Nor any such thing was brought on record in the cross-examination. In any case if defence tries to shift the scene of offence to another place than the one alleged by the prosecution then burden shifts upon the defence to prove that fact at least to the extent of creating doubt in the mind of the court and nothing has been done in this regard by the defence by cross-examining all the witnesses. For all these reasons, the contention of the defence that the assault has taken place near the house of Raghunath and not at Gadikhana Chowk, is required to be rejected. Findings in this regard in favour of the defence drawn by the trial court are totally wrong and perverse.

23. With reference to Exhibit 91 the station diary entry as stated above, it was urged by counsels for accused that Exhibit 91 becomes FIR and not the statement made by Rohini (P.W. 2) because Exhibit 91 is the first in order of time having been recorded at 17.10 hours. Our attention was also drawn to the fact that FIR of Rohini (P.W. 2) sought to be proved by Rohini (P.W. 2) and the officer does not mention the time of recording FIR and writing of forwarding letter along with FIR by Sub Inspector of Khadak police station to the P.S.O. for registering the offence on the basis of the said FIR, creates doubt about the timing of FIR. FIR is at Exhibit 38. It is recorded by police station Khadak. The forwarding letter with the FIR is brought on record by P.W. 19 Suresh Kulkarni. Forwarding letter is written by the same officer who recorded FIR of Rohini. It is at Exhibit 72, it shows that on the basis of FIR of Rohini, offences under different sections of IPC including 302 were registered vide station diary entry No. 31 of 1986 at 18.30 hours. This fact is also supported by Exhibit 91 because there is an entry at 18.30 hours in Exhibit 91 which is the gist of information given by Rohini (P.W. 2).

24. It is true that if statement of Rohini was recorded by PSI he should have put timing on the statement itself. However, in our opinion, even if Exhibit 91 which is the entry of the information received by Police Station from constable Kolekar as stated is treated as FIR, it makes no difference to the prosecution case because in that case the statement of Rohini can be considered as previous statement and not FIR.

25. So far as evidence of (P.W. 3) Suresh Chavan - Auto-rickshaw driver is concerned, though he claims to be an eye witness, we are not inclined to accept his testimony. (P.W. 3) Suresh Chavan has himself admitted that he was thickly acquainted with the deceased. He was knowing his children for quite a long time. Similarly, Rohini (P.W. 2) in her evidence has stated that she was knowing the rickshaw driver, in whose rickshaw deceased Raghunath was carried to Sasson Hospital.

26. The question is if Rohini (P.W. 2) was knowing Suresh Chavan (P.W. 3), it was rickshaw of P.W. 3 Suresh in which she carried Raghunath to Sassoon Hospital then it was expected that Rohini gives his name in the statement to the police, Exhibit 38. It was also necessary for the police to record the statement of Suresh and make the panchnama of rickshaw and also to seize the clothes of Suresh because according to P.W. 3 Suresh Chavan, Raghunath had bleeding injuries and he assisted Raghunath in lifting Raghunath and putting him in the rickshaw. But neither the name of Suresh is appearing in the statement of Rohini nor there was any panchnama of the auto rickshaw nor the blood stained clothes of Suresh were seized by the police. Absence of these facts, particularly, when Suresh was thickly acquainted with the deceased and was knowing Rohini well, creates doubt about his presence apart from the other circumstances for which the trial court held that he was a chance witness.

27. But only because evidence of (P.W. 3) Suresh Chavan is not found trustworthy, does not mean that the court should threw out the entire prosecution case. The court has to find out the truth, and, in our opinion, the evidence of Rohini (P.W. 2) coupled with the evidence of her mother Shakuntala (P.W. 13) and other circumstances are there to enable the court to find out the truth or separate chaff from grain. According to Rohini, her father was resting on the cot outside the house on 14.10.1986 in the afternoon. At that time accused No.2 Sham Andekar came in a drunken condition, gave call to her father Raghunath and started abusing him. There was altercation between her father and the accused No. 2 Sham and thereafter all the accused came there. All of them were armed but Raghunath escaped and ran towards Gadikhana Chowk followed by Rohini (P.W. 2) and her mother Shakuntala (P.W. 13).

28. Regarding this aspect of the prosecution case, it was vehemently urged by the counsels for the accused that Raghunath was encircled by as many as 16 accused. Most of them were armed, then Raghunath would not have been able to run upto Gadikhana Chowk, which is any way between 500 ft. or one and half kilo meter from the house of Raghunath. Their further contention was that Rohini (P.W. 2) and her mother Shakuntala (P.W. 13) were trying to show the origin of quarrel at and near the house in order to show that they followed accused and Raghunath and witnessed the incident. According to the defence neither Rohini (P.W. 2) nor her mother Shakuntala (P.W. 13) had witnessed the incident of assault. They might have come to know about the incident afterwards and then out of enmity they had falsely implicated the accused. We are not inclined to accept these submissions for number of reasons. Firstly, no positive evidence is brought on record by the defence regarding the distance between the house of Raghunath and Gadikhana Chowk. According to the estimate of the witnesses Rohini (P.W. 2) and others, the distance was 500 ft. or one and half kilometre. Rohini (P.W.2) was young girl of 23 years of the age, when her evidence was recorded. Nothing on record that she is educated one and therefore her estimate of the distance could be wrong and in any case not 100% correct. We have already held that assault did not take place at the house of Raghunath. The assault took place Opp: Rajesh Boarding House at Gadikhana Chowk. The only thing that is required to be seen is whether Rohini (P.W. 2) could have witnessed the incident.

29. We also do not find much substance in the submissions of the defence that if Raghunath was surrounded by so many accused, they would not have allowed him to escape assault upto Gadikhana Chowk. Rohini does not say that all these accused surrounded Raghunath from all the sides. What she says that while altercation between accused No. Sham and Raghunath was going on, other accused came. They attempted to assault him but Raghunath ran towards Gadikhana chowk. There is nothing difficult for a man to run upto Gadikhana chowk faster than his assailants when he want to save his life which is in danger.

30. Another important thing that gives credence to the prosecution case is that there is no time either for Rohini (P.W. 2) and Shakuntala (P.W. 13) or police officers to concoct and fabricate the story involving these accused falsely. We have noted that in Exhibit 91 the timing of information received by the police station is shown as 17.10 hours and between 5.10 to 6.30 p.m. statement of Rohini (P.W. 2) came to be recorded Exhibit 38. The indoor case papers of Raghunath are produced at Exhibit 64. They show that he was admitted at 16.25 hours. According to Rohini (P.W. 2) immediately after the assault she carried her father Raghunath to Sassoon Hospital. Giving consideration for 15 minutes to reach Sassoon Hospital from the spot, it can be said that attack took place around 4 p.m. or 16.00 hours in the afternoon. Thus sequence of events, attack taking place at 4 Oclock, Raghunath being admitted at 4.25 p.m. Information got passed from hospital and being recorded at 5.10 p.m. and statement of Rohini (P.W. 2) being recorded before 6.30 p.m., clearly shows that Rohini (P.W. 2), her mother Shakuntala (P.W. 13) or the investigating officer had no time at all to concoct and fabricate the false story. If there was delay of 3-4 hours or more, then there would have been some substance in the argument of the defence in this regard but the sequence of events and the speed with which entries came to be recorded differently, as stated above rules out the possibility of concoction and fabrication.

31. Another other aspects giving credence to the evidence of Rohini (P.W. 2) are that according to Rohini accused No. 1 Ganesh was in lungi and armed with sword, accused No. 2 Sham was armed with Gupti, accused No. 3 Avinash had sword in his hand, accused No. 5 Vijay had a pointed knife in his hand and others were armed with iron bars and sticks. Then accused No.1 Ganesh assaulted Raghunath on the back and stomach, accused No. 2 Sham assaulted Raghunath near the place of urination, accused No. 5 Vijay stabbed Raghunath near his neck and other assaulted with iron bars and sticks.

32. Medical Certificate i.e. the post mortem report (Exhibit 70) report of Raghunath shows that he had suffered the following injuries:

1) An incised wound present on Rt.iliac Region 1 x 1/4" going deep inside near the iliac crest.

2) An incised wound present on Rt. side back of thigh 1 1/4 x 1/4" muscle deep margins Regular.

3) An incised wound present on back in the centre at level of thorasic 6 margins Regular.

4) An incised wound present in the centre of neck 1" x 1/4" margins Regular.

5) An incised wound Rt. elbow inner aspect 1" x1/4".

6) An incised wound Lt. upper arm front aspect 1" x 1/4" margins Regular.

7) An incised wound present in Lt. Axilla 1" x 1/4".

8) An incised wound Lt. upper arm outer aspect 1" x 1/4".

9) An incised wound 3/4" x 1/4" Front on Rt. Temporal Region of head.

Mentioning of injury at iliac region and statement of P.W. 2 (Rohini) that one of the accused caused injury at the place near the urination, gives strong credence to the story of P.W. 2 (Rohini).

33. Another important aspect that supports the prosecution case is inquest panchnama. Same injury is noted in the inquest panchanama near groin and it is noted that there is discharge of semen. If Rohini had not witnessed the incident, she would not be at all in a position to speak about this particular injury.

34. It is true as pointed out by Mr. Chitnis that Rohini (P.W. 2) does not speak about any injury on the head of Raghunath. But, in our opinion, that is no ground to discredit her or disbelieve her.

35. It was also contended by Mr. Chitnis that not only Rohini (P.W. 2) and Shakuntala (P.W. 13) do not say about the injury on the head but according to the doctor the injury on the head noted on the body of Raghunath as per post mortem report was caused by sharp heavy weapon and in the weapons recovered there was not any sharp and heavy weapon. We have considered first aspect of the argument of Mr. Chitnis earlier. Second aspect about the opinion of the doctor, we do not find this is sufficient to create any doubt about the presence of Rohini. Therefore, this does not help the defence at all.

36. Mr. Hardikar, had also contended that according to P.W. 18 Dr. Laxman Pherwani who conducted post mortem, injuries were of recent origin i.e. more than 12 hours but less than 24 hours before examination. Doctor also stated that he conducted the post mortem at 9.15 p.m. on 14.10.1986 and therefore in view of this statement if 12 hours period is taken, then the injuries on the body of Raghunath were caused according to Mr. Hardikar some time in the morning between 9 a.m. to 10 a.m. and therefore it is not possible to believe the prosecution version that the assault was caused in the afternoon. This argument is far fetched. It is totally inconsistent with the ocular evidence and the subsequent immediate notings made at different stages. Now, if ocular evidence of Rohini (P.W. 2) and Shakuntala (P.W. 13) coupled with Exhibit 19 etc. is considered, then the opinion of the doctor does not carry case to the extent of creating doubt about the prosecution case.

37. Mr. Hardikar also contended that the medical casepapers Exhibit 64 shows name of Rekha Ashok Kolekar as the informant and it belies the story that Rohini carried Raghunath to the hospital. We do not find any substance in this contention because Rohini and Shakuntala are the eye witnesses. They no where stated that Rekha was present at the spot and findings of blood on the clothes of Rohini, clearly prove that she was present and who carried Raghunath to the hospital.

38. It was also urged by Mr. Hardikar that if the attack on Raghunath had taken place at a place like Gadikhana Chowk, which was heavily located and surrounded by residential premises or business premises, then absence of any independent witness from vicinity was not explained by the prosecution. We also do not find any substance in these submissions because Raghunath was an externee, having number of cases pending against him. Andekar gang was also involved in number of crimes. At any rate, they did not have a reputation of civil obedient servants of the society and when therefore such incidents take place, others in the society are least interested or bothered about to come and therefore non examination or non availability of independent witnesses, cannot be a ground to discard the testimony of Rohini (P.W. 2) and Shakuntala (P.W. 13).

39. It was also urged by Mr. Chitnis and Mr. Hardikar that according to the evidence of Rohini her father Raghunath while warding off the blows of sword, threw away sword of one of the assailant but that sword was not found on the spot. It is true that no sword was found on the spot but there is no injury to the hands of Raghunath. Neither Rohini nor Shakuntala had stated that while throwing sword of the assailant, Raghunath hold it in his hand and threw it. The Marathi wording is "Talwar Udwun Lavili" that does not carry the case anywhere to the advantage of the accused.

40. One more aspect that gives credibility to the evidence of P.W. (2) Rohini is according to her accused No.1 Ganesh was in lungi at the time of assault, she further stated that it was a yellow colour with flower design lungi. She identified when it was shown to her in the court as Article H. Then, in her chief she has stated that accused No.1 Ganesh was wearing white banian with purple colour border at that time. She identified it as Article I. This shows that Rohini (P.W. 2) in fact witnessed the incident because police had during investigation recovered these very similar clothes from accused No.1 Ganesh. They were all blood stained and the blood group of Raghunath was detected on them. If Rohini had not witnessed the incident she would not have been in a position to describe the clothes of accused No.1 Ganesh. The medical evidence regarding the injuries of deceased Raghunath fully supports the evidence of Rohini (P.W. 2).

41. Entry Exhibit 91 shows that it was P.W. 2 (Rohini) who gave information to Dr. Waghmare. Rohini has in paragraph 4 of her evidence stated that when she took father Raghunath to the hospital, Doctor enquired from her about the incident and she told that Babu Andekars group had assaulted him and he sustained injuries. Therefore, Rohinis evidence gets further corroboration from this fact. Then Rohini has stated that Police Inspector came there, he took her and her mother Shakuntala to the Khadak police station in a police jeep. Her mother was weeping and she was asked to sit inside and then she narrated the incident to the police and her statement came to be recorded as Exhibit 38. She has also stated that her blood stained clothes were attached by the police and seized. She identified them Article A saree, Article B petticoat and Article C blouse. She also identified the clothes of her father Raghunath, viz., shirt, payjama, banian, underwear as Articles D, E, F and Grespectively. All were blood stained and the C.A. confirms that it was the blood of deceased Raghunath not only on his clothes but also on the clothes of Rohini (P.W. 2). She has also identified the weapons.

42. Rohini was subjected to lengthy cross examination. Certain omissions were brought on record regarding the garments on the person of assailants, viz. yellow flower designed lungi of accused No.1 Ganesh, white banian with purple border of accused No.1 Ganesh. These omissions are not at all material because while giving her statement she was not in a position to give all these details.

43. However, the counsels for the accused contended that according to Rohini she tried to save her father by intervening and she sustained abrasions on her legs and hands and her bangles were broken. Further, according to her, her father threw away one of the swords in the hands of assailants and her mother also received some minor injury and her mangalsutra was broken. Counsels for the accused contended that neither any pieces of bangles were found on the spot nor the mangalsutra was found nor the weapon sword was found on the spot. There are no injuries on the person of Rohini (P.W. 2), therefore, according to them all this falsifies her story of being an eye witness.

44. We are not impressed by the submissions. The conduct of Rohini (P.W. 2) and her mother Shakuntala (P.W. 13) is most natural. Witnesses do make exaggerations in such cases but that cannot be a reason to disregard and disbelieve their entire story, if it corroborates on other points. Points for corroboration have already been noted above and therefore for these reasons the story of Rohini (P.W. 2) is not liable to be rejected or disbelieved.

45. The second important witness is Shakuntala (P.W. 13). She is an eye witness. She has narrated story and corroborated the testimony of Rohini regarding what happened outside the house right from accused No.2 Sham coming in the drunken condition followed by other accused, altercations, Raghunath running towards Gadikhana chowk and she and Rohini (P.W. 2) running behind them and Raghunath being assaulted in front of Rajesh Boarding House by the accused with weapons. She has also stated Sudhakar Pardeshi and Rohini was present at the time of assault. It is necessary to mention here that Sudhakar Pardeshi though an eye witness turned hostile and did not support the prosecution. She identified the weapons. Story of this witness Shakuntala was criticised by the defence, mainly on the ground that if she was present at the spot there was no explanation why she had not accompanied her daughter Rohini to the hospital in the same autorickshaw in which Raghunath was carried. In our opinion, that cannot be a reason to discard the testimony of Shakuntala. Shakuntala had given explanation in this regard in paragraph 13, wherein she has stated that she had gone near her husband Raghunath, gave assistance in lifting and putting him in rickshaw but she felt giddiness. It is natural for a wife to get shocked and feel giddiness after seeing her husband fully drenched in blood because of so many injuries on his person. Rohini (P.W. 2) in addition has stated that perhaps when she was in hospital, police inspector came there and took her and her mother to Police Station Khadak. Her mother was weeping therefore she was asked to sit outside. We have already noted that there was no time gap from the assault till going to the police station and things have happened in quick succession followed by relevant entries.

46. Even P.W. 19 Suresh Kulkarni has stated that at about 5 p.m. he was at his residence when he received telephone call from A.S.I. Divekar of Police Station Khadak that Raghunath was assaulted by the person from Andekar Gang at Gadikhana Chowk and was removed to Sassoon Hospital. He therefore rushed to Sassoon Hospital. Raghunath was already there. PSI Lonkar recorded inquest panchnama. He made enquiries whether anybody has lodged complaint or not. Nobody had made any complaint and therefore he took wife and daughter of Raghunath in a police jeep to Police Station Khadak.

47. This evidence also clearly shows that the entire machinery was working with speed. P.W. 17 Sunil Jagdale was sent at the spot immediately i.e. at 4.30 p.m. P.W. 19 Kulkarni states that on 14.10.1986 when he was at his residence at about 5.00 p.m. or soon thereafter learnt about assault at Gadikhana Chowk, he goes to Sassoon Hospital and finds that Raghunath is dead and then takes Roihini (P.W. 2) and Shakuntala (P.W. 13) to the police station for recording FIR. Therefore, in this sequence of events there is absolutely no possibility, no time to concoct story to falsely implicate the accused. P.W. 13 Shakuntala not accompanying Rohini (P.W. 2) to the hospital, does not at all create any doubt about her presence at the spot i.e. at Gadikhana Chowk at the time of assault. Her conduct is most natural.

48. In cross examination Shakuntala (P.W. 13) has stated that when her husband was on the ota, the accused were within the radius of 4 to 5 feet from the ota. From this, it was tried to be suggested that if the accused were so close to Raghunath, then it would have been difficult for Raghunath to run away. We do not find any substance in this contention because the assault had not taken place at or near the house of Raghunath and it had taken place at Gadikhana Chowk.

49. At this juncture, it is also pertinent to note that even if Rohini has stated that her mother intervened in quarrel to save her husband and in that her mangalsutra broke down, Shakuntala does not utter a word about this, and as such this takes away the force in the arguments of defence lawyers about not finding of Mangalsutra on the spot or not noticing any injury on the person of Shakuntala. She has also stated that Rohini alone had gone in the rickshaw in which Raghunath was taken and she on her own accord did not go to the police station to lodge report. The conduct is most natural and obvious because we cannot expect Shakuntala (P.W. 13) who had seen her husband being brutally attacked, to immediately rush to the police Station. She was not in that state of mind.

50. She was also questioned about identification of weapons by her, but this is not important for any purpose to the defence. She had stated in the court that her husband ran towards Gadikhana Chowk. Thereafter the accused and then she and her daughter Rohini. She was contradicted with her statement wherein she has stated that accused ran behind her and her daughter. Obviously this is wrong and it does not matter at all to the defence. It does not support the story of the defence that she is a liar or she was not present at the spot.

51. Apart from these two witnesses Rohini (P.W. 2) and Shakuntala (P.W. 13), the prosecution also examined Suresh Chavan (P.W. 3) who was an eye witness according to the prosecution. We are not inclined to accept his testimony for the reasons stated above. Then there is evidence of spot panchnama as per which blood spot were seen in front of Rajesh Boarding House and sample of blood and sample of earth were taken. Rohini produced her blood stained clothes as per panchnama Exhibit 42 and proved by panch witness P.W. 4 Suryakant Salunkhe at Exhibit 42. They were blood stained clothes.

52. Panchnama of the scene of offence is Exhibit 44 and Ex. 45 is the panchnama about the clothes of deceased Raghunath, produced by one Vithal Raghunath, he is son of deceased Raghunath. It is proved by P.W. 5 Iqbal Ahmed. Exhibit 47 is proved by P.W. 6 Shivaji Jagtap. It is about search of house of Accused No.2 Sham Andekar wherein certain weapons were recovered along with other articles which were not connected with this crime, viz. pass book, cash, ornaments etc. Most of the other witnesses P.W. 7 eye witness Sudhakar Pardeshi, P.W. 8 Sandip Valsangkar, P.W. 9 Rajendra Lohokare -panch witness, P.W. 10 Vikas Pawar -panch witness regarding the discovery of lungi at the instance of accused No.1 Ganesh, have turned hostile and did not support the prosecution. P.W. 11 Malhari Bhise has stated that he was called as panch at the police station on 15.10.1986 where panchnama was recorded regarding one shirt and full pant of the accused. He identified banian Article I and full pant Article M. But he did not identify the accused. Panchnama is Exhibit 54. It is in respect of five accused and the search taken. Another witness P.W. 12 Rangnath Jagtap was examined to prove Panchnama Exhibit 54, he was declared hostile. P.W. 14 Arun Jadhav - panch witness to Exhibits 58 and 59 i.e. statement of accused No. 2 Sham regarding recovery of Gupti and its subsequent recovery, was declared hostile. P.W. 15 Murlidhar Wadkar -panch witness of Exhibits 61 and 62 regarding the statement of accused No.1 Ganesh and discovery of sword, is declared hostile. P.W. 19 is Investigating Officer - Suresh Kulk1arni, he has proved all those panchnamas and discovery memorandums, referred to above, in respect of each accused as required by the law i.e. under Section 27 of the Evidence Act.

53. Another most important piece of evidence tendered by the prosecution are the reports of C.A. The forwarding letter Exhibit 83 is proved by P.W. 19 Kulkarni as sent to C.A. along with muddemal article and Exhibit 84 is the C.A. report. It is in respect of (Exhibits 1 and 2) earth recovered from the spot at Gadikhana Chowk, saree (Exhibit 3), blouse (Exhibit 4), petticoat (Exhibit 5), payjama (Exhibit 6), underwear (Exhibit 7), full shirt (Exhibit 8), banian (Exhibit 9), pair of sandles (Exhibit 10), knife (Exhibit 11), iron blade of kukari (Exhibit 12), T-shirt (Exhibit 13), Lungi (Exhibit 14), Sword (Exhibit 15), Gupti (Exhibit 16) and blood of Raghunath (Exhibit 17). Result of analysis is given in Exhibit 84 itself. As per C.A. report the blood group of Raghunath is B and this blood group is noted in Exhibits 1 to 13 and 16. Human blood was also detected on Exhibit 15, nature of cut marks on Exhibits 6 to 9 are consistent with use of sharp weapon. Most important thing is that the earth wrapped (Exhibits 1 and 2 ) have blood group of B. Rohinis (P.W. 2) clothes have blood group B, Tea-shirt, lungi have blood group of B, and weapons have blood group B. All this lend credence to the prosecution case, as discussed above.

54. It was tried to be urged however in this regard by the counsels for the accused that as per C.A. report Exhibits 85, 86, 87, 88 and 89 the blood group of Accused No.1 - Ganesh, accused No.2 Sham and accused No.3 - Avinash is B. Therefore according to the defence, finding of blood of group B on these Exhibits 1 to 17 is of no consequence. We are not inclined to accept this submissions because there is absolutely nothing on record to show that any of these accused, particularly, accused No.1 Ganesh, accused No.2 Sham and accused No.3 Avinash received any injuries. They are totally denying their presence at the spot and/or the persons as assailants and therefore even if their blood group is B, it does not create confusion about the case of the prosecution. So far as accused No. 5 Vijay is concerned as per C.A. report Exhibit 88 his blood group is A and as per C.A. report Exhibit 89 so far as accused No. Bhau Mohol is concerned, his blood group is B.

55. Upon consideration of all the entire evidence, as stated above, it is required to be held that the prosecution has proved that out of enmity about which there is no dispute Raghunath was attacked on the day and at the time and place i.e. on 14.10.1986 at about 3.30 p.m. Opp: Rajesh Boarding House, Gadikhana Chowk, Shukrawar Peth, Pune, with deadly weapons and he died homicidal death. The trial court has obviously failed to consider these important aspects of the matter and came to a wrong conclusion that the accused are not guilty. The judgment of the trial court is perverse and is required to be set aside.

56. The question is which out of the 16 accused can be held guilty in this assault on Raghunath. For this purpose, we have again to bank upon the evidence of Rohini (P.W. 2) and Shakuntala (P.W. 13). Rohini has stated that accused No.2 Sham came in drunk condition and raised quarrel with deceased Raghunath, accused No.2 Sham was followed by all the accused including the female accused, but she has assigned specific role about assault at Gadikhana Chowk. According to her, accused No. 1 Ganesh was armed with sword, accused No.2 Sham was armed with Gupti, accused No.3 Avinash had sword, accused No.5 Vijay had a pointed knife and others were having iron bars and sticks. Then she has stated that accused No.1 Ganesh assaulted her father on the back and stomach, accused No.2 Sham assaulted hear the place of urination, accused no. 5 Vijay stabbed near the neck. There were in all 9 injuries on the body of Raghunath as per the post mortem report. Rohini has stated in her cross-examination that when the lady accused came towards the spot they were not armed with weapons. In view of this admission, we are not inclined to hold any of the lady accused guilty in this case and out of the remaining accused those who have been named by P.W. 2 Rohini and P.W. 13 Shakuntala,, are those who launched attack on Raghunath resulting in his death, therefore, this appeal of the State against acquittal is required to be allowed and those accused who have been named by both these witnesses Rohini (P.W. 2 ) and Shakuntala (P.W. 13) are required to be held guilty i.e. Ganesh accused No. 1, Sham accused No.2, Avinash accused No. 3 and Vijay accused No.5.

57. As per the evidence of Rohini P.W. 2 and Shakuntala P.W. 13 those coming at her house included apart from female accused Bhau Mohol, Avinash Andekar, Shekhar Wardekar, Vijay Yadav and one more not named. But so far as accused Bhau Mohol, Dinesh Andekar and Shekhar Wardekar are concerned, no specific role is attributed to them about the actual assault, nothing incriminating is recovered from these accused Bhau Mohol, Dinesh Andekar and Shekhar Wardekar and admittedly there is no recovery from any of the accused Rukmini, Satyabhama, Laxmi, Kamal, Pushpa and Sangita.

58. From the evidence of Rohini (P.W. 2) and Shakuntala (P.W. 13), it is clear that two of the accused -assailants were having swords. Accused No.1 Ganesh and Accused No.3 Avinash had Swords. If the injuries of the deceased Raghunath are seen, all 9 injuries are incised wounds which can be caused by sharp edged weapon. Accused No.3 -Avinash was there from the very beginning and he also chased the deceased Raghunath. Therefore, looking to the weapon in his hand, the nature and number of injuries, he is required to be held guilty along with the other accused. In the result, acquittal of accused Nos. 4, 7 to 15 is required to be upheld. Accused No. 6 is dead, therefore appeal against him abates.

59. Ultimately, accused No.1 Ganesh Andekar, accused No.2 Sham Andekar, accused No.3 Avinash Andekar and accused No.5 Vijay Yadav are required to be held guilty for offence under Section 302 read with 34 of IPC. In the result, we pass the following order:

ORDER

Appeal is partly allowed.

Acquittal of accused Nos. 4 and 7 to 15 is upheld. They are on bail. Their bail bonds stand cancelled.

Accused No. 6 is dead, appeal against him abates.

Accused No.1 Ganesh Shamrao Andekar, Accused No. 2 Shamrao Vyankatesh Andekar, Accused No.3 Avinash Shamrao Andekar and Accused No. 5 Vijay Ramchandra Yadav are held guilty under Section 302 r/w 34 of IPC and they are sentenced to imprisonment for life, individually, with fine of Rs.5,000/ (Rupees Five Thousand) each, in default R.I. for one year, each. Accused Nos. 1, 2, 3 and 5 to surrender before the trial court for undergoing sentence within four weeks from today. If they fail to surrender, the trial court to take steps under the Criminal Procedure Code to sent them to jail to undergo the sentence imposed by this judgment.