Nathu Keru Bhatre, Indian Citizen vs State Of Maharashtra
2007 Latest Caselaw 562 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard the learned advocate for the accused and the learned A.P.P. for State.

2. Appeal No.456 of 1986 is filed by the original accused No.12 to allow the appeal against the conviction for offence under Section 302 read with 149 of the Indian Penal Code. The other Appeal No.740 of 1986 is filed by the State against the acquittal of accused Nos.1 & 14 by the trial Court. It is to be noted that in all 15 accused faced trial before the Sessions Judge, Raigad in Sessions Case No.59 of 1985 for committing triple murder of Geologist and one of their attendant. The Trial Court found that only accused No.12 was liable for conviction and thus other accused were acquitted and accused No.12 came to be convicted. By an appeal the accused No.12 challenged his conviction and the State found that the acquittal of accused Nos.1 & 14 are wrong and, therefore, the appeal against the respondents-accused.

3. The prosecution case was that two junior geologist M.Vidyasagar Reddy and Omkar Jerat were deputed to Raigad District for doing field work in the area. They were staying in village Vahur with their wives. On 25th February, 1985 both the deceased left their respective houses at about 7.00 a.m. for field work and they were accompanied by guide Laxman Sonavane. They did not return back as expected on that day evening and for couple of days. Thereby, Mrs. Suvarna Reddy, wife of Vidyasagar Reddy reported the matter with their landlord Isane who filed the missing report with Mahad police station as per Exh.44.

4. On 27/2/1985 P.S.I.Arjun Babajirao Shinde then sent police party in search of the three persons in the directions in which the three deceased had gone for their field work. P.S.I. Shinde went to village Ambarle in the afternoon of 28/2/1985 but he could not get any clue. He again went there at about 10.00 p.m. and learnt that three persons were murdered by a gang of 15 persons. He, therefore, lodged a report under Section 302 of I.P.C. with Goregaon police station. It was lodged on 1st March, 1985 at about 8.00 a.m. as per Exh.57.

5. Thereafter, investigation was taken over by P.S.I. Hanumant Narayan Kathapurkar attached to Goregaon police station proceeded to village Ambarle Vadacha Kond with panchas and police staff. He reached there at about 11.00 a.m. where all the 15 accused persons were rounded up in a field and were then taken into custody. Thereafter, enquiries were made.

Accused No.1 showed his willingness to point out the place where the dead bodies of the three persons were thrown. A memorandum and panchanama was prepared and it appears that at that time, P.S.I. Kathapurkar had taken with him one Shrinivasan, a geologist to identify the bodies. Then accused No.1 led the police party to a place called Tamkhada and pointed out the valley in which three bodies were thrown. They were got identified by Shrinivasan and panchanama was prepared and a stick was also recovered along with other incriminating articles. Inquest panchanamas of the bodies were made as per Exhs.28, 29 & 30, three panmchanama for three bodies.

6. Thereafter, investigation was taken by CID of the Maharashtra State. It was again carried out and even after the filing of the charge-sheet, investigation was permitted by the Magistrate. Then, identification parade was held on 13/6/1985. The statements came to be recorded. Thus, in this background, charge-sheet came to be filed against all the accused. The defence was false implication. The prosecution examined witnesses and produced documents and tried to prove all the circumstances. However, trial Court convicted only accused No.12 and acquitted all the other accused and, therefore, these two appeals.

7. So far as the case is concerned, the learned A.P.P. justified in the acquittal of accused Nos.2 to 11 and 15. There was no justification in acquittal of accused Nos.1 and 14 against whom there was direct evidence connecting them with the murder. He contended that the trial Court did not appropriately give proper consideration to the evidence of the eye witness when he identified the accused in addition to the fact of getting support from the test identification parade. He further contended the recovery of incriminating articles at the instance of the accused was a strong circumstances. So far as conviction of accused No.12 is concerned, the learned A.P.P. contended that accused No.12 came to be rightly convicted because incriminating articles all belonging to the two Geologist were recovered at his instance for which he has no explanation. He, therefore, supported the Judgment of the trial Court in so far as it related to the accused No.12.

8. On the other hand, Advocte for accused Nos.12, 1 and 14 contended that though it is true that three government servants had to lose their lives. In this case, the evidence to connect the accused Nos.1 & 14 was not all clinching or it was sufficient to prove the prosecution case beyond reasonable doubt. He contended that pointing out the place by accused No.1 where the dead bodies were found is not at all the circumstances to indicate that the accused No.1 had knowledge about the death of the three persons. He added that when admittedly all the three bodies were found in highly decomposed condition and there was an admission that there was emitting obnoxious smell which was spreading in the nearby area, every one in the vicinity had come to know that human body was lying and, therefore, if the accused No.1 pointed out that place he could not be held guilty of participation in the murder or suspect.

9. The learned advocate further contended that evidence of the discovery of bodies at the instance of accused No.1 became highly suspicious because P.S.I. Kathapurkar even before he questioned accused No.1 and recorded his statement under Section 27 of the Evidence Act had taken Shrinivasan with him to identify the bodies. Mr.Gavand, therefore, contended that if this is accepted, P.S.I. Gavand was already knowing where the bodies were lying and he took the identifying witness himself.

10. So far as the evidence of eye witness P.W.9 Narayan Pandu Ghugare is concerned, Mr.Gavand contended that this witness was a chance witness. Firstly, he was got up witness created by the police to create false case against the accused. Secondly, alternatively he was a chance witness and thirdly the identification parade was in which this witness identified the accused Nos.12 & 14 was not reliable to be relied upon for non compliance of the guidelines prescribed by the High Court of presence of police officer at the time of holding of the parade. He also contended that no explanation was given by the prosecution why the other eye witness was not examined. Therefore, according to him, if only the evidence against accused No.1 and 14 is that of identification by P.W.9 Narayan and if that evidence is liable to be rejected, then there was no case against accused Nos.12 & 14 at all.

11. Learned advocate for the accused also contended that there was absolutely no motive why the accused would kill the Geologist. But in this regard, the learned A.P.P. contended that from the evidence of Narayan, it is clear that the three persons i.e. deceased dressed as Geologist approached some lady in the village for water. She mistook them as thief and shouted and then the accused or the villagers assaulted those three persons either at that place or some other place and killed them. He contended that finding of dead bodies at the instance of accused No.1, finding of incriminating articles which only Geologist can possess from accused No.12, finding burning of papers and the evidence of P.W.9 Narayan was sufficient to rope in all the three accused namely 1 & 14 and convicted accused No.12.

12. We have given anxious consideration to the submissions made by both the sides. Firstly, there is no doubt that two geologist and their assistance died homicidal death. Absolutely, no challenge was there from the side of the accused to this aspect of the matter. The question is whether the accused Nos.1, 12 & 14 are required to be held guilty in this regard. The most important witness of the prosecution is P.W. 9 wood cutter Narayan. He has stated that he was a wood cutter. He was engaged by one Sitaram. On the date of the incident, it was Tuesday, between 12.00 to 1.00 noon. He was cutting wood of the hill top when three persons came from the side of the nate (nala) add climbed up the hill. They were asking for water from a woman. The woman was at a distance of about 500 ft. That woman did not give water but began to raise shouts come thieves are there. Then 10 to 15 persons from the village came with sticks in their hands and began to beat the three men. The three persons said "do not beat us, if necessary can bind us and report the matter".

13. P.W.9 further states that the woman then directed her attention to the witness and told the villagers that Narayan and Sitaram were also thieves. Then 2/3 villagers rushed at Narayan and Sitaram with sticks in their hands. P.W.9 Narayan asked Sitaram to come down from the tree immediately. Accordingly, Sitaram came down and 2/3 persons who had rushed on them were identified as accused Nos.12 & 14. He stated that in the parade that took place after 3 months, he identified the accused Nos.12 & 14.

14. The evidence of this witness is challenged by the accused on the ground that in his earlier statement given to the police, the witness had pleaded total ignorance but in his statement recorded by the CID, he has changed his version and, therefore, on this ground the witnesses would have to be disbelieved by the trial Court since regarding identification of accused Nos.12 & 14 in the parade, it was stated that at the time of holding of the parade a police constable was there and 15 accused were kept in the parade simultaneously when dummies and suspects were numbering more than 45. This according to the learned advocate for the accused was totally against the guidelines set out by the High Court in this regard and, therefore, no reliance should be placed on the evidence of the identification parade.

15. We find that the identification parade is not in accordance with the guidelines. Mere presence of the police constable is not a ground to reject the evidence of the identification parade, but keeping all the suspect accused in one parade requires the evidence regarding the parade to be rejected.

16. However, there is no reason to disblieve this witness. He pointed out the conduct of the accused which gives hundred percent credibility to the testimony. The witness was a simpleton and even then whatever he has stated is beyond his imagination. He heard the three persons saying "do not beat us, if necessary you can bind us and report the matter." If this witness has stated that all the three persons were praying that they should not be beaten, then that could have been termed as imagination of the witness. But his evidence is that they were repeatedly saying that "if necessary you can bind us and report the matter". This clearly shows that that the three persons wanted the lady to verify their credentials before they were assaulted and this according to us gives full credibility to this witness. It may be that his evidence of identification parade is required to be rejected on technical grounds, but his identifying accused Nos.12 & 14 in the Court has to be accepted because the witness has no grudge to grind against any of the accused. He actually resides in the area in vicinity and he knows the consequences of identifying accused Nos.12 & 14 but still is fearless enough to state the truth before the Court.

17. It is true that in his first statement before the police, he did not say anything about being eye witness. But he has given explanation in this regard that he was afraid that the police may arrest him because police usually beat and he felt that he should save himself from torture. This explanation also shows the simplicity of this witness and, therefore, giving of difference version by him is not a a ground that can be treated as a ground to disregard his testimony. Therefore, the evidence of this witness has to be accepted in regard to accused Nos.12 and 14.

18. So far as accused No.12 is concerned, the most important piece of evidence against him is the recovery of incriminating articles exclusively belonging to the persons from the Geological Department. The prosecution has proved this aspect namely hammer bag containing two shoves, two wrist watches, water bottle, two machines like wrist watches as per Exh.50. The evidence of this witness was challenged on the ground that the witness states that the signature of the accused No.12 was taken. In fact, panchanama does not bear his signature or the memorandum. Looking to the articles recovered, we are not inclined to disbelieve the evidence of this witness. In the panchanama Exh.50 the articles are described as two jungle shoes of rubber and canvas, old used, one khaki bag, one water bag, and iron hammer, one magnetic compass which was not in a proper and working condition and glass was broken one altometer of measuring height, one wrist watch of HMT Co. another square wrist watch, cash and a bamboo stick having blood stains. The accused No.12 is a resident of the village and he has no explanation at all to offer how he came into possession of these articles. Therefore, the evidence of recovery preceded by the murder of two geologist and their companion or assistant and further evidence of P.W.9 Narayan in Court is clear cut proof of the involvement of accused No.12.

19. So far as accused Nos.12 & 14 are concerned, P.W.9 Narayan has identified them as participant of the assault. P.W.9 Narayan has seen them in close proximity and, therefore, he has sufficient opportunity to identify them even if evidence of identification parade is not accepted. His identification in the Court and the nature of evidence given by him and as discussed above inspires full confidence about his testimony. The findings of articles of the deceased at the instance of accused No.12 soon after the death coupled with the identification of P.W.9 Narayan is sufficient to hold accused No.12 guilty. Similarly, identification of the accused No.14 by P.W.9 Narayan as one of the assailant is sufficient and proves beyond doubt the involvement of accused No.14.

20. The learned advocate for the accused also submitted that even though Sitaram was an eye witness, there was no explanation why he was not examined. But for non examination of Sitaram, no adverse inference can be drawn against the prosecution because evidence of P.W.9 Narayan fully inspires confidence.

21. So far as the role of the accused No.1 is concerned, according to the prosecution he showed the place where the dead bodies were found as per Exh.47 proved by P.S.I. Kathapurkar, P.W.12. Regarding the discovery of the dead bodies at the instance of this accused, it was argued by the advocate for the accused that the dead bodies were lying there since 3 to 4 days, they were emitting foul smell and, therefore, it was most likely that the villagers knew that some human body was lying there in the valley and, therefore, pointing of the place by the accused No.1 cannot be sufficient to drawn an inference of his involvement in the murder. It is true that there is some substance in this submission. However, after the death, the bodies were recovered. Accused No.1 led the police to the place near padvi at that place some blood was found on the ground. There was also ash showing that some papers were burnt. Some clips were there and panchanama was made at Exh.48.

22. However, apart from this, there is no evidence against the accused No.1. His pointing of place where the dead bodies were found is of no consequence for the reasons stated above as his pointing another place where something was burnt is also of no consequence because there is no connecting evidence that the articles found at the spot were of the deceased. In the panchanama drawn in this regard, Exhibit 48 proved by P.W.6 Baban Balu Andhere, a stick and two caps were found. Nothing was pointed out to us by the learned A.P.P. whether any of the witness identified those articles as belonging to the deceased. Therefore, this evidence of pointing out the two places, one where the dead bodies were found and another were something was burnt at the instance of accused No.1 is not sufficient to connect the accused with the offence of murder. No other evidence is appearing against him and, therefore, his acquittal is required to be upheld.

23. So far as accused No.12 is concerned, he is already convicted by the trial Court and we do not find any infirmity in the Judgment of the trial Court. We have discussed the evidence against him. The same has been relied upon by the trial Court for convicting the accused No.12. The same is the case of accused No.14. He is identified by P.W.9 Narayan who has no enmity with the accused No.14 and, therefore, the appeal filed by the State in that regard is required to be allowed.

24. Advocate for the accused relied upon certain authorities about lacunas in identification parade or test identification parade. We have discarded the evidence of test identification parade, therefore, there is no need to discuss those authorities. One of the Judgment of the Supreme Court was relied by the Advocate for the accused regarding material contradictions with reference to the evidence of P.W.9 Narayan. We have considered the evidence of P.W.9 Narayan and we find that his evidence has to be believed in spite of the contradictions.

25. For all the reasons stated above, the appeal filed by the accused No.12 is required to be dismissed and appeal of the State is required to be partly allowed in respect of accused No.14 only. Therefore, we pass the following order.

26. Appeal filed by accused No.12 Nathu Keru Bhatre being Criminal Appeal No.456 of 1986 is dismissed. He is on bail. He should surrender to the authorities for undergoing the sentence within 6 weeks from today.

27. Appeal No.740 of 1986 filed by the State is partly allowed. The acquittal of the accused No.14 Ramu Maruti Pawar is set aside. He is held guilty for the offence punishable under Section 302 read with 34 of the I.P.C. along with accused No.12 and is sentenced to imprisonment for life. Accused No.14 to surrender within 8 weeks from today. If he fails to surrender, Trial Court to take steps according to law.

28. Appeal No.740 of 1986 against accused No.1 Mahadeo Dhondu Chavan is dismissed.