Bombay High Court
Vijay Gajanan Pawar And Ors vs The State Of Maharashtra And Ors on 23 December, 2015
OJ APPEAL 1102-G.doc
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1102 OF 2007.
Amit @ Bandya Ashok Bhosale ]
age: 24 years, ]... Appellant.
Occupation: Business ] Original
R/o Sangli, Taluka: Miraj ] Accused
District: Sangli ] No.5
V/s.
1. The State of Maharashtra ]
at the instance of Sangli City Police Station ]
Sangli ]
]
2. Shri. Arun Ganpati Potdar ]
age: adult, occn. Agriculturist ]
r/o Kanse Galli, Khanbhag ] Respondents
Near Panchmukhi Maruti , ] respondent
Sangli ] Nos 2 to 4
] heirs
3. Mahananda Arun Potdar ] of
age: adult, Occn. Housewife ] deceased
r/o Kanse Galli, Khanbhag ]
Near Panchmukhi Maruti ]
Sangli ]
]
4. Priti Somnath Sankpal ]
age: adult, Occn. Household ]
r/o Near Swimmikng Tank ]
Ganesh Nagar, Sangli ]
1
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OJ APPEAL 1102-G.doc
WITH
CRIMINAL APPEAL NO.1129 OF 2007.
Rohit Ramdas Chavan ]
age: 20 years, Occn. Labourer ] Appellant
r/o Bhui Galli, Panchmukhi Maruti Road ] Original
Khanbhag, Sangli ] Accused No.6
-vs-
1. The State of Maharashtra ]
at the instance of Sangli City Police Station
ig ]
Sangli ]
]
2.Arun Potdar ].. Respondents
age: adult. ] Respondent
r/o 1146 Kanase Galli ] Nos 2 &3
Panchmukhi Maruti Road ] heirs of
Khanbhag, Sangli ] deceased
]
3.Priti Somnath Sankpal ]
age: adult ]
r/o Ganesh Nagar ]
5th Galli, Sangli ]
WITH
CRIMINAL APPEAL NO.1134 OF 2007.
1. Vijay Gajanan Pawar [abated] ]
age: 29 years, Occn. Cook ]
]
2. Shankar Shivaji Pawar ]
age: 28 years, Occn. Cook ]
] Appellants
3. Dayanand Chintu Chinake ] Original
age: 40 years, Occn. labourer ] accused
2
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OJ APPEAL 1102-G.doc
] Nos
4. Pratap Dinkar Chavan ] 1 to 4.
age: 21 years, occn. Cook ]
]
all are resident of Miraj, District: Sangli ]
]
-vs-
1. The State of Maharashtra ]
at the instance of Sangli City Police Station ]
Sangli ]
]
2.Arun Potdar
age: adult.
ig ].. Respondents
] Respondent
r/o 1146 Kanase Galli ] Nos 2 &3
Panchmukhi Maruti Road ] heirs of
Khanbhag, Sangli ] deceased
]
3. Priti Somnath Sankpal ]
age: adult ]
r/o Ganesh Nagar ]
5th Galli, Sangli ]
Mr. Amit Sale a/w Ms. Swapnali Pokale and Ms. Joshna
Borges, for the appellant in Criminal Appeal No.1102
of 2007.
Mr. Umesh Mankapure a/w Mr. Vinod P. Sangvikar, for
appellant in Criminal Appeal No.1129 of 2007 and for
appellant No.3 in Criminal Appeal No.1134 of 2007.
Dr. Yug Mohit Chaudhary a/w Ms. Parijat Bhardwaj,
for appellant Nos 2 and 4 in Criminal Appeal No.1134
of 2007.
Mr. A. S. Shitole, APP for the Respondent-State.
3
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OJ APPEAL 1102-G.doc
CORAM : SMT. V.K. TAHILRAMANI ACTING CJ &
DR. SHALINI PHANSALKAR-JOSHI, J.
th DECEMBER, 2015.
CLOSED FOR ORDER : 18
JUDGMENT PRONOUNCED ON: 23rd DECEMBER, 2015
JUDGMENT : [PER: DR. SHALINI PHANSALKAR-JOSHI, J.]
1. As these three appeals are arising out of one and the same
judgment and order dated 28th August, 2007 of Sessions Judge, Sangli, in
Sessions Case No.38 of 2007, they are being decided by this common
judgment.
2. By the impugned judgment, appellants, who are original
accused Nos 1 to 6 are convicted for the offence punishable under
Section 302 read with 34 of the Indian Penal Code and sentenced to
suffer life imprisonment and to pay compensation of Rs.50,000/- each in
default to suffer rigorous imprisonment for two years. Out of said
compensation amount of Rs.50,000/-, the amount of Rs.25,000/-, is
directed to be paid to the parents of deceased Sanjay and remaining
amount of Rs.25,000/-, is directed to be paid to the wife of the deceased
Somnath.
OJ APPEAL 1102-G.doc
3. By these appeals, the appellants are challenging their
conviction and sentence. For the sake of convenience, the appellants in
these appeals are referred to by their original nomenclature as accused
Nos 1 to 6.
4. Brief facts of the appeals can be stated as follows :-
Deceased Sanjay was the younger brother of P.W.1
Dhananjay. The another deceased Somnath was Sanjay's friend. Sanjay
was a rickshaw driver. Accused persons were residing in the same
vicinity. In September, 2006, a dispute arose between deceased Sanjay
and accused No.1 Vijay on account of motorcycle. Since then, the
relations between Sanjay and accused No.1 were not cordial.
5. On the day of incident on 7.11.2006 at about 11.00 a.m.
when P.W.1 Dhananjay was about to leave his house, in order to go to
his shop of gold smith, P.W.4 Firoz Mujawar, came running to his house
and informed him that at Tiwari galli, 4 to 5 persons including accused
No.1 Vijay, were assaulting deceased Sanjay and Somnath. Hence P.W.1
Dhananjay went running upto Tiwari galli and witnessed that accused
OJ APPEAL 1102-G.doc
Nos. 1 to 6 were assaulting his brother Sanjay and Sanjay's friend
Somanth with knives and sickle. Accused No.1 Vijay gave blow of
sickle on the head of Sanjay with such a force that Sanjay fell down on
the ground with bleeding injury to his head. Other accused were piercing
Sanjay with knives in their hands, they were also assaulting Somnath
with the weapons in their hands. When P.W.1 Dhananjay tried to
intervene, the persons gathered there did not allow him to do so, they
held him up. As a result, assault was going on for 5 to 7 minutes. After
both Sanjay and Somnath fell down on the ground in totally injured
condition, appellants left the spot, leaving behind some of the weapons
in their hands. P.W.1 Dhananjay then went near his brother and noticed
that his brother Sanjay had received injuries on head, neck, chest and
hand. He gave a call to Sanjay, however, Sanjay was not responding.
Immediately he took Sanjay in a rickshaw to Civil Hospital. There
Doctor examined and declared him dead. Simultaneously Somnath was
brought to Civil Hospital and he was also declared to be dead on
admission. P.W.1 Dhananjay then went to City Police Station and
lodged a detailed report of entire incident vide his complaint Exh.36.
On his complaint C.R.No.218 of 2006 was registered initially against
accused Nos. 1 to 4 only.
OJ APPEAL 1102-G.doc
6. On registration of the offence, investigation of the same was
taken over by P.W.22 Police Inspector- Shankar Jadhav. He alongwith,
P.W. 1 Dhananjay went to Civil Hospital. There, inquest panchanams on
the dead bodies of Sanjay and Somnath were drawn vide Exh.30 and 31.
The dead bodies were threafter handed over to P.W.12 Dr. Arjun Patil
for postmortem.
7. P.W.22 PI Kadam, then went to the spot of incident
alongwith P.W.1 Dhananjay. There, in the presence of panchas, he
collected some weapons which were found lying on the spot. He also
collected the blood stained soil from the spot with the help of cotton
swab, under scene of offence panchnama Exh.46. The clothes of both
the deceased were seized under panchnama Exh.32 and 33. A thorough
search of accused and also of the eye witnesses to the incident was taken
but on that day none of the accused could be traced. On the next day,
however, accused Nos 1 to 4 came to be arrested under panchnama
Exh.52.
8. On 9.11.2006, P.W.1 Dhananjay again went to the police
OJ APPEAL 1102-G.doc
Station and gave supplementary statement to the effect that after the
funeral when he tried cooly to remember the entire incident in its proper
perspective in chronological order, he remembered that accused No.5
Amit and accused No.6 Rohit were also involved in the said incident, as
accused No.6 Rohit was holding Sanjay while accused No.5 Amit was
assaulting Sanjay with knife, alongwith others. In view of the
supplementary statement of P.W.1 Dhananjay, accused Nos.5 Amit and
6 Rohit were also arrested on 10.11.2006.
9. During the course of further investigation, the weapons of
assault came to be seized at the instance of accused Nos 1 & 2 under
Section 27 of the Evidence Act. In the custodial interrogation of accused
Nos 1 to 6, role of accused Nos 7 to 9 was also transpired, as they were
found involved in destroying evidence after commission of the offence,
by burning clothes of the accused, which were stained with blood. Hence
accused Nos 7 to 9 also came to be arrested. All the seized muddemal
articles were sent to Chemical Analyzer. On the receipt of Chemical
Analyzer's reports Exh.121 to 130 and postmortem notes at Exh.66 and
67, chargesheet came to be filed in the Court, for the offence punishable
under Section 302 read with 34 of the Indian Penal Code against accused
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Nos. 1 to 6, and for the offence punishable under Section 201 read with
section 34 of the Indian Penal Code against accused Nos 7 to 9.
10. On committal of the case to the Sessions Court, the trial
Court framed charge against accused vide Exh.5. The accused pleaded
not guilty and claimed to be tried raising defence of denial and false
implication.
11. In support of its case, prosecution examined in all 22
witnesses. But most of them turned hostile and as a result prosecution
relied mainly on the evidence of single eye witness P.W.1 Dhananjay
and corroborating evidence of his friend P.W.4 Firoz. The accused, to
substantiate their defence, examined one witness by name Dr. Basappa
Koli to prove M.L.C. register entry No.7079 and 7980 dated 7.11.2006
showing that history of the deceased was not given in the hospital by
P.W.1 Dhananjay, but by his father. Thus, an attempt was made by the
accused to show that P.W.1 Dhananjay was not present at the time of
incident and he has not witnessed the incident.
12. On appreciation of this evidence, the trial Court was pleased
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to acquit accused Nos. 7 to 9 in the absence of sufficient incriminating
evidence on record against them. The trial Court, however, was pleased
to convict accused Nos. 1 to 6 for the offence punishable under Section
302 read with 34 of the Indian Penal Code and sentenced them as
aforesaid.
13. This judgment of the trial Court is challenged in these
appeals by accused Nos. 1 to 6. During pendency of the appeals,
accused No.1 Vijay Pawar has expired on 17.10.2010, hence as per
order dated 9th October, 2015 , appeal stands abated against him.
14. In these appeals, we have heard learned counsels for
appellants, who have assailed the impugned judgment of the trial Court
on the count that except for the solitary testimony of P.W.1 Dhananjay,
there is absolutely no iota of evidence on record against accused. It is
urged that in order to base conviction on the evidence of single eye
witness, his evidence must be of an unimpeachable character. According
to learned counsels for accused, the evidence of P.W. 1 Dhananjay, is
not of a such a sterling quality as it suffers from several infirmities and
lacuna. As to his presence at the time of incident except for the F.I.R.
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lodged by him, there is no other documentary evidence on record. Even
in the history given before the Doctor at the time of admission of Sanjay
and Somanth, the name of P.W.1 Dhananjay is not appearing as the
informant. The rickshaw in which P.W. 1 Dhananjay claims that he has
brought injured Sanjay to the hospital is not seized by the police. Even
the blood stained clothes of P.W.1 Dhananjay are not seized. The spot
panchnama does not mention the place from which P.W.1 Dhananjay
has allegedly witnessed the incident. It is also urged that he has
implicated accused Nos. 5 and 6 in this offence, three days after the
incident. Therefore, his testimony cannot be considered as of sterling
worth to convict the accused on this solitary piece of evidence. In short,
according to learned counsels for accused, the evidence on record in the
present case, is not at all convincing, reliable and of unerring tendency;
the trial Court has, therefore, committed an error in convicting the
accused on the basis of such evidence, therefore, the impugned
judgment of the trial Court needs to be quashed and set aside.
15. Per contra, learned APP has fully endorsed and supported
the judgment of the trial Court by submitting that as per well crystalised
principle of law evidence has to be weighed and not counted. According
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to learned APP, double murder of Sanjay and Somnath took place in the
broad day light on the road in a most brutal manner which has created
terror in the mind of the people. The Investigating Officer has therefore,
deposed that no one was coming forward to give statement. At the time
of trial also independent witnesses examined by the prosecution have not
supported the case of prosecution, having been declared hostile. In such
situation, the evidence of solitary eye witness cannot be discarded on
some imaginary, assumptions, presumptions and groundless reasons.
According to learned APP, evidence of P.W. 1 Dhananjay gives all the
details of the incident. F. I.R. which is lodged immediately after the
incident gives all the details of the incident. Therefore, it is submitted
by learned APP that the trial Court has rightly placed reliance on the
evidence of P.W.1 Dhananjay to prove guilt of the accused and no
interference is warranted in the well reasoned judgment and order of the
trial Court, which had an opportunity to observe the witnesses, their
demeanour and to appreciate their evidence at the first instance.
16. In our considered opinion, for proper appreciation of the
rival submissions advanced by learned counsels for accused and learned
APP, it would be useful to refer to the factual aspects of the case as
OJ APPEAL 1102-G.doc
brought on record through the evidence of witnesses.
17. This is a case of double murder, speaking of utmost
brutality. Though defence counsels are not disputing the factum of
homicidal death of Sanjay and Somanth, just to understand brutality of
assault, it would be useful refer to evidence of P.W.12 Dr. Arjun Patil,
who has conducted postmortem on the dead bodies. His evidence will
not only prove the gravity and brutality of the assault but also the fact
that in the said assault 5 to 6 persons were involved, otherwise number
of injuries which were found on the bodies of the deceased Sanjay and
Somnath cannot be explained, especially when the assault was made
simultaneously on both of them. It leaves no manner of doubt about the
involvement of not less than 5 to 6 persons in the assault. Just to
reproduce evidence of P.W.12 Dr. Arjun Patil, the external injuries he
found at the time of postmortem and are noted in the postmortem reports
Exh.65 and 66 of Sanjay and Somanth are as follows :-
In respect of deceased Sanjay, P.W.12 Dr. Patil, has noticed
following external injuries :-
OJ APPEAL 1102-G.doc
Injury No.1 : Incise wound over mid forehead, spindle
shaped vertically oblique 2 cms x 1cm x bone deep with
bleeding. No fracture of skull bone.
Injury No.2 : Incise wound - 6 cms lateral to left eye,
spindle shaped vertically oblique 2 ½ cms x 2 cms x
bone deep with bleeding. No fracture of bone.
Injury No.3 : Incise wound over left cheek, spindle
shaped vertical 2 cms x 1 cm x muscle deep with
bleeding.
Injury No.4 : Incise wound over left clavicular fosses
region, horizontal oblique, 6 cms x 2 cms x muscle
deep.
Injury No.5 : Incise wound on left upper arm lower
1/3rd region, Horizontal, spindle shaped, 2 cms x 1 cm
x muscle deep, clotted blood.
Injury No.6 : Incise wound over left thumb palm aspect
vertical, spindle shaped, 1 cm x ½ cm x muscle deep
clotted blood.
Injury No.7 : Incise wound 5 cms above and lateral to
left breast horizontal oblique, spindle shaped, 6 cms x 3
cms to cavity deep bleeding present.
Injury No.8 : Incise wound 4 cms medial to and below
left breast vertical, spindle shaped, 5 cms x 4cms x
cavity deep with bleeding present fracture forth rib.
Injury No.9 : Incise wound over left 6th rib region
laterally and 6 cms below left breast, horizontal oblique,
OJ APPEAL 1102-G.doc
5 cms x 2 cms x cavity deep with bleeding.
Injury No.10 : Incise wound left epigastric region,
horizontal oblique, spindle shaped, 5 cms x 2 cms x
cavity deep with bleeding.
Injury No.11 : Incised wound left buttock region, lower
and laterally, vertical oblique, spindle shaped, 5 cms x 2
cms x muscle deep with bleeding.
Injury No.12 - Incised wound 6 cms below and lateral
to injury No.11, vertical oblique, spindle shaped wound,
5 cms x 2 cms x muscle deep.
Injury No.13 : Incised wound 2 cms below injury
No.12, vertical oblique, spindle shaped 3 cms x 1 ½ cms
x muscle deep bleeding.
Injury No.14 : Incised wound over right upper arm
medial third posteriorily, horizontal, spindle, shaped,
3cms x 1 ½ cm x muscle deep bleeding.
Injury No.15 : Incised wound over mid of right palm,
horizontal oblique, spindle shaped, 4 cms x 1 ½ cms x
muscle deep bleeding.
Injury No.16 : Incised wound 3 cms lateral to right
breast vertical to oblique, spindle shaped, 5 cms x 3 cms
x muscle deep bleeding.
Injury No.17 : Incised wound over right lower axillary
region, 5th, 6th rib, vertical oblique, spindle shaped 5 cms
x 3 cms x cavity deep, bleeding.
Injury No.18 : Incised wound over mid occipital region,
OJ APPEAL 1102-G.doc
horizontal, spindle shaped 8 cms x 3 cms x bone deep,
bleeding.
Injury No.19 : Incised wound - 2 cms below injury
No.18, horizontal, spindle shaped 3 cms x 2 cms x bone
deep with bleeding.
Injury No. 20 : Incised wound over mid of left shoulder
region, spindle shaped, 3 cms x 2 cms x muscle deep
with bleeding.
Injury No. 21 : Incised wound 2 cms medial to injury
No.20, oblique spindle shaped, 4 cms x 2 cms x muscle
deep with bleeding.
Injury No.22 : Incised wound below left scapula and
mid back, horizontal oblique, spindle shaped 9 cms x 4
cms x cavity deep with bleeding.
Injury No.23 : Incised wound over lateral to medial
border of left scapula, vertical oblique, spindle shaped,
4 cms x 2 cms x bone deep with bleeding.
Injury No.24: Incised wound - 6 cms below and lateral
to injury No.22, horizontal oblique, spindle shaped, 4
cms x 2 cms x muscle deep with bleeding.
Injury No.25 : Incise wound just left lateral to vertibral
column at T12 to L12 Region, vertical oblique, spindle
shaped, 5 cms x 3 cms x cavity deep with bleeding.
Injury No.26 : Incised wound just below and lateral to
injury No.25, vertical oblique, spindle shaped, 4 cms x
2 cms x muscle deep with bleeding.
OJ APPEAL 1102-G.doc
Injury No.27 : Incised wound 2 cms below injury
No.24, horizontal oblique, spindle shaped, 4 cms x 2
cms x muscle deep with bleeding.
Injury No.28 : Incised wound left iliac region, vertical
oblique, spindle shaped, 5 cms x 3 cms x muscle deep
with bleeding.
Injury No.29 : Incised wound over right mid lumbar
region, horizontal oblique, spindle shaped- 5 cms x 2
cms x muscle deep with bleeding.
According to him, all the injuries were antemortem in nature
and are sufficient to cause the death in the ordinary course. The cause of
death was shock due to injury to vital organs.
There were corresponding internal injuries on his body as
under.
Fracture 4th rib on left anterior chest corresponding to injury
No.8.
Rupture on both sides corresponding to injury Nos 16, 17, 7, 8,
9, 4 and 22.
Rupture on right lung lower lobe and hilar region
corresponding to injury Nos 16 and 17.
Rupture of left lung lower lobe anteriority and inferiotity
corresponding to injury Nos. 7, 8, 9.
Rupture over left ventricular area .
OJ APPEAL 1102-G.doc
Rupture of left xentricle at apical region corresponding to
injury No.8.
Rupture and Ascending qarta anteriority corresponding to
injury No.8
Rupture in left epigastic region, corresponding to injury No.10.
Rupture anteriority corresponding to injury No.10.
In respect of deceased Somnath, P.W.12 Arjun Dr. Patil, has
noticed following external injuries :-
Injury No.1 : three Incised wounds over right parieto temporal
region (confluent mixed) intermingled with each other, over the
area of 14 cms x 5 cms x cavity deep, with multiple fractures of
skull bones (4 pieces) and depressed inside with rupture of brain
coverings and laceration to brain matter. Portion of brain matter
protruding outside with blood clots and bleedings.
Injury No.2 : Incised vertical wound 1 cms to medial to injury
No.1, 3 cms x 2 cms x bone deep with bleeding, no fracture below
it.
Injury No.3 : Incised vertical wound 1 cms below to injury No.1
over mid forehead, 4 cms x 2 cms x bone deep with bleeding, no
fracture below.
Injury No.4 : Incised wound - over left parieto occipital area, 5
cms x 3 cms x bone deep with bleeding, no fracture below it.
Injury No. 5 : Over nape of neck. Horizontally oblique irregular
abrasion with contusion over region - 4 cms x 3 cms with clotted
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blood.
Injury No. 6 : Incised wound over dorsum of left hand - vertical
-extending from mid wrist to base of middle finger - 7 cms x 2
cms x inside deep with bleeding.
Injury No. 7 : Incised wound over lower phalenx of middle finger
- horizontal oblique - 2 cms x 1 cm x bone deep with bleeding.
Injury No. 8 : Incise wound over mid phalenx of left ring finger
-horizontal oblique, 2 cms x 1 cm x bone deep with bleeding.
Injury No.9 : Incised wound tip of left little finger, 1 cm x muscle
deep x cut through and through distal portion missing bleeding.
Injury No.10 : Incised wound postero lateral aspect of right
forearm, vertical 7 cms x 3 cms x muscle deep with bleeding.
Injury No.11 : Incised wound mid occipital area, vertical 5 cms x
2 cms x bone deep with bleeding, no fracture.
Injury No.12 : Incised wound 1 cms medial to injury No.11
vertical 4 cms x 2 cms x bone deep with bleeding no fracture.
There were corresponding internal injuries on his body
as under.
Incised wound under the scalp corresponding to
injury Nos 1, 2, 3, 4, 11 and 12.
Fracture of skull on right side, multiple fractures
(4 pieces) on right parieto temporal region with
depression inside fracture bones corresponding to
injury No.1.
Rupture and coverings of brain corresponding to
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injury No.1.
Laceration of brain matter and protruding portion
of brain outside corresponding to injury No.1.
18. These injuries were also found to be antemortem and
sufficient in the ordinary course to cause death. The cause of his death
was also found to be shock due to cranio cerebral injury.
19. As per evidence of P.W. 12 Dr. Arjun Patil, in case of
Sanjay there were 8 injuries namely Injury Nos. 7, 8, 9, 10, 16, 17, 22
and 25 which were independently sufficient to cause death; whereas in
case of Somnath injury No.1 which consists of three incised wounds
intermingled with each other, resulting into multiple fractures of skull
bones, was found to be sufficient to cause the death. According to
P.W.12 Dr. Arjun Patil, these injuries found on the dead body of Sanjay
and Somanth must have been caused by sharp edged weapons. Injury
No.1 on the dead body of Somanth was likely to be caused by sickle.
Similarly injuries found on the body of Sanjay were also possible by
sickle and knives.
20. The evidence of P.W. 1 Dhananjay goes to prove that he
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has seen that the brain matter was protruding out of head of Somnath due
to breaking of skull and head. One can therefore realise the ferocity of
the assault. As deposed by Dr. Patil, death of both Sanjay and Somnath
was instantaneous and must be within five minutes of the assaults. It may
be stated that as per evidence of P.W.1 Dhananjay, assault itself took
place for about 5 to 7 minutes and that too by about 6 to 7 accused
persons.
21. Learned counsels for accused, to be fair on their part are
also not shying away from the fact that both the deaths were homicidal
ones. The above said evidence led by prosecution, in our opinion ,
further proves that the assault was brutal and ferocious made with sharp
edged weapons, clearly and purely with an intention to ensure that both
Sanjay and Somnath are done away with instantaneously, without
leaving any scope for survival and that too in most cruel and brutal
manner.
22. The real issue posed by learned counsels for accused is
about ability of prosecution to prove the involvement of the accused, in
this brutal assault. As stated above, the entire case of prosecution stands
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on the sole testimony of P.W.1 Dhananjay. The brutality of the assault
was such that, as deposed by P.W.22 Investigating Officer PI Shankar
Jadhav, though several persons were present at the time of incident, no-
one was coming forward to give statements about witnessing the assault;
all of them had as if gone underground and shelved themselves away. A
sort of terror was created in the vicinity, right from beginning, as a result
though the incident had taken place in broad day light in thickly
populated area and though very large number of persons had witnessed
the incident, police can record statements of only four eye witnesses and
that too, two days after the incident. It is pertinent to note that at the time
of trial also, except P.W.1 Dhananjay and P.W.4 Firoz, none of the
witnesses have supported prosecution case. P.W.13 Mahesh Chavan to
P.W.19 Sanjary Jadhav, who were having their shops in the vicinity and
must have been witnessed the incident, have outrightly disowned the
prosecution case and despite cross examination by learned APP, not
supported the prosecution.
23. The perusal of the judgment of the trial Court reveals that
the trial Court was also constrained to observe that though on number of
occasions summonses were police, the presence of those four eye
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witnesses could not be secured as they went underground and were not
traceable. The reports filed at Exh.71, 76, 79, 81 and 88 by APP to that
effect are found to be self explanatory. The point, therefore, stressed is
that this is not a case where prosecution has not attempted to lead
corroborating evidence, but on account of the terror created in the
vicinity, which is bound to be created, considering the brutality of attack
on two persons at the hands of 5 to 6 persons with sharp edged weapons,
no one was coming forward to depose. The prosecution was, therefore,
helpless, and has therefore no option but to rely solely on the evidence of
P.W.1 Dhananjay, the solitary eye witness to the incident.
24. It is true that merely because prosecution could not bring
other corroborating evidence of eye witnesses on record, the evidence of
P.W.1 Dhananjay a solitary witness, cannot escape from the closer
scrutiny of his testimony by the Court. His evidence has to be assessed
independently to find out whether it is of such a quality as is expected
when the conviction has to rest on his sole testimony. The law to that
effect is very well settled. It is laid down in ample number of authorities
that it is the quality of evidence and not the quantity of witnesses which
counts. At times, one credible witness outweighs the testimony of
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number of other witnesses of indifferent characters.
25. Hence as laid down by the Apex Court in -Vadivelu
Thavel -vs- State of Madras, A.I.R. 2957 SC 614, there is no
difficulty in relying on the sole testimony of a single witness to pass
conviction if it is found to be above reproach or suspicion of
interestedness or incompetence. Section 134 of the Evidence Act also
lays down the sound principle of law that no particular number of
witnesses shall in any case be required for the proof of any fact. Courts
are ultimately concerned with the merits of the evidence of the witnesses
and not with the number of witnesses examined by the prosecution. If the
evidence of a witness gives true and correct version of the incident, then
the Court can place reliance on his testimony to hold the prosecution
case as proved. In other words acceptibility of evidence and not
numerical sufficiency of evidence is material. Of course the law expects
that the evidence of sole eye witness should be scrutinized with caution
and circumspection, but once his evidence crosses this test, then it can
form the sole basis for conviction.
26. Here in the case, both the trial Court and this Court is also
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aware that evidence of P.W.1 Dhananjay requires more scrutiny, not
only because he is sole eye witness, but also because he is real elder
brother of the deceased Sanjay. Hence he has to cross here the double
test to place reliance on his testimony, though normally close relative of
the deceased is the last person to screen real offender and implicate an
innocent one.
27. The evidence of P.W.1 Dhananjay reveals that on the day of
incident at about 11.00 a.m. while he was about to leave the house in
order to go to his shop, his friend P.W.4 Firoz came running to his house
and told him that in Tiwari Galli, 5 to 6 persons inclusive of accused
No.1 Vijay Pawar were assaulting Somnath and Sanjay. As per his
evidence, he immediately went running to Tiwari Galli. It is brought on
record from his cross examination and also from the spot panchnama
Exh.44 proved through the evidence of P.W. 2 Nana Jadhav that Tiwari
Galli where the incident took place and Kanase galli, where P.W.1
Dhananjay was residing are just adjacent to each other. There was hardly
a distance of 150 feet between the house of P.W.1 Dhananjay and the
spot of incident. Hence it is but natural that he reached to the spot
immediately on being informed by P.W.4 Firoz.
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28. There is corroborating evidence to this effect of P.W.4
Firoz that when he was proceeding to the house of P.W.1 Dhananjay, in
order to go to Kolhapur, at the corner of Tiwari Galli, he heard shouts of
quarrel. Hence he rushed to the spot and found accused No.1 Vijay
giving pushes to Sanjay and Somnath. Hence he went to the house of
P.W.1 Dhananjay and informed him about the incident. According to
evidence of P.W.4 Firoz, P.W.1 Dhananjay started running towards the
spot and told him to bring his motorcycle, then he searched key of the
motorcycle and reached to the spot.
29. As per further evidence of P.W.1 Dhananjay, when he
reached Tiwari Galli, he found accused Nos. 1 to 6 assaulting his brother
Sanjay and Sanjay's friend Somnath with knives and sickle. Accused
No.1 Vijay assaulted Somnath with sickle on head with such a force that
Somnath immediately fell down. The others were piercing Somnath and
Sanjay with knives in their hands. According to him, he wanted to
intervene, however, the persons gathered there did not allow him to do
so, they held him back physically. As per his evidence, assault was
going on for about 5 to 7 minutes. Thereafter the assailants ran away
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from the spot. Some of the assailants left behind the weapons. Then he
went upto his brother Sanjay and noticed that Sanjay had received
injuries on his head, neck, chest and hand. He called Sanjay. However,
Sanjay did not respond.
30. This part of evidence of P.W.1 Dhananjay also gets
corroboration from the spot panchnama Exh.44, which shows that on the
spot there was pool of blood, various articles like the footwear, handle of
the knife were lying there. At another spot where deceased Somath was
assaulted, some portion of his head and skull was lying in a pool of
blood with the blade of knife. The spot panchnama was conducted
immediately after the incident and the spot was shown by P.W.1
Dhananjay himself, as deposed by P.W.22 PI Jadhav,
31. The evidence of P.W.1 Dhananjay then proves that he took
Sanjay in a rickshaw to Civil Hospital. It was the same rickshaw, which
Sanjay used to drive as rickshaw driver. In Civil Hospital, Doctor
declared Sanjay dead. Almost simultaneously Somnath was also brought
into hospital. He witnessed that brain matter was protruding out of the
head of Somnath due to the breaking of head. Somnath was also
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declared dead by the Doctor. Then P.W.1 Dhananjay immediately went
to City Police Station and lodged complaint Exh.36. On this aspect, there
is corroborating evidence of P.W.22 PI Jadhav to prove that on the basis
of this complaint, offence bearing C.R.No.218 of 2006 was registered
immediately at about 12.30 hrs and he rushed to the hospital alongwith
P.W.1 Dhananjay. In the complaint Exh.36, the names of accused Nos 1
to 4 as assailants of Sanjay and Somnath are clearly and correctly
mentioned. In our considered opinion, this prompt lodging of F.I.R.
immediately after the incident, thus, gives strong corroboration and
assurance to the evidence of P.W.1 Dhananjay. His evidence further
reveals that after returning from funeral, he remembered about role of
accused Nos 5 and 6 also, that accused No.6 Rohit holding his brother
Sanjay and accused No.5 Amit assaulting him with knife and he
disclosed this fact to the police in his supplementary statement recorded
on 9.11.2006. In evidence before the Court, he has identified all the
weapons and also the accused.
32. This witness is subjected to incisive cross examination at
the hands of defence counsels, but absolutely nothing worthwhile is
elicited in his cross examination to disbelieve him. His evidence is
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having a ring of truthfulness, colour of consistency and sense of
straightforwardness as a result of which it inspires confidence in the
judicial mind. It is also not that his evidence is not corroborated at all on
any aspect. As stated above, his evidence gets corroboration in material
particulars from the evidence of P.W.4 Firoz, who immediately on
witnessing the incident, had reached to inform him and then came to the
spot following P.W.1 Dhananjay. The evidence of P.W.4 Firoz further
reveals that when he followed P.W.1 Dhananjay on motorcycle and
reached Tiwari galli, he witnessed that P.W.1 Dhananjay with the help of
his uncle Uday Potdar was shifting Sanjay into rickshaw. P.W.1
Dhananjay himself was driving the rickshaw; whereas Uday was sitting
on rear side of injured Sanjay, who was kept on the seat. As per evidence
of P.W.4 Firoz, on the spot, he also found Somnath lying on the ground
with injuries on his head. He had also followed P.W.1 Dhananjay to the
hospital on the motorcycle where Doctors declared Sanjay and Somnath
to be dead. According to his evidence, he was frightened. He did not
leave the house for two days and only after 2 days, police came to his
house. When police came to his house, he went to police station where
his statement was recorded.
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33. No doubt in his cross examination, he has denied having
seen the incident, but then the observations of his demeanour as made by
the trial Court in respect of his answers, is very relevant. The trial Court
has noticed that on the next day, when he appeared for further cross
examination, he was found to be a totally changed person, either he was
being pressurized, influenced or terrorized, but practically he was not the
same witness who has given earlier deposition. In the words of trial
Court, "he was a completely changed man when he was facing further
cross examination on the next date". This observation of the trial Court
cannot be overlooked as trial Court has an added advantage of observing
witnesses live at the time of recording their evidence and therefore, the
observations of the trial Court assume significance. It was the duty of
learned APP to disown this witness after his cross examination,
considering that he has turned hostile to the prosecution case, which
phenomena was noticed in respect of other prosecution witnesses, but
prosecution has not done so. In our considered opinion, however, even if
the evidence of this witness is excluded from the consideration, there is
no reason at all to disbelieve the evidence of P.W.1 Dhananjay.
34. According to learned counsel for the accused, however, the
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presence of P.W.1 Dhananjay at the spot is not proved beyond
reasonable doubt in view of P.W.4 Firoz turning hostile in cross
examination and not being declared so and subjected to cross
examination by APP. It is further urged that if P.W.4 Firoz has not
informed P.W.1 Dhananjay about the incident, there is no explanation
about source of information from whom he came to know about the
incident, so as to reach to the spot. It is further urged that except for the
F.I.R. there is no other documentary evidence to prove presence of
P.W.1 Dhananjay on the spot. Police had neither seized his blood stained
clothes nor seized rickshaw in which he has allegedly carried Sanjay to
the Hospital. The history given before Doctor is also by his father and
not by this witness. Even the Station Diary Entries which are made and
proved through the evidence, go to reveal that the information of the
incident, according to C.M.O. Dr. Mahadeo Gore, was given by the
father of deceased Sanjay and not by P.W.1 Dhananjay. Hence according
to learned counsel for the accused, if P.W.1 Dhananjay was an eye
witness to the incident, then it was for him to provide history of the
incident to the Doctor. The defence witness Dr. Basappa Koli, has
proved that the history was given by the father of Sanjay and not by
P.W.1 Dhananjay. Thus, it is urged that if the presence of this only
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single eye witness is not established beyond doubt, no question arises of
placing reliance on his evidence to pass conviction of the accused on this
sole piece of evidence.
35. We have given our anxious consideration to this
submission of the defence counsel and on close scrutiny of the same we
are unable to accept the same. It need not be stated that when incident of
such a magnitude was taking place, P.W.1 Dhananjay who was residing
just near the spot of incident is bound to come to know about it, as
admittedly several persons in the vicinity had gathered there. Therefore,
even if evidence of P.W.4 Firoz, who has changed his colours in cross
examination, is discarded, the fact remains that P.W.1 Dhananjay, his
father and other family members are bound to know about the incident.
Especially when the actual assault was going on for about 5 to 7 minutes
after P.W. 1 Dhananjay reached there, it must have been preceded for
some minutes with pushes and blows. Therefore, it is but natural that
P.W. 1 Dhananjay must have rushed to the spot. Admittedly even as per
evidence of P.W.1 Dhananjay, Sanjay was taken by him in the rickshaw
with help of his uncle Uday. The other family members like father of
Sanjay, Arun Potdar must have rushed to the hospital. In view of the
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precarious condition of Sanjay, Doctor must have immediately examined
him and thereafter done the paper book of recording history and filling
up M.L.C. register. Once Sanjay and Somnath were declared dead, the
immediate concern for P.W.1 Dhananjay was to go to the police station
and lodge complaint against accused and accordingly he has rushed to
the police station. As regards giving of history before Doctor or filling
up M.L.C. register, it might have been done by his father and other
family members.
36. Moreover, evidence of Defence witness Dr. Basappa Koli,
proves that if patient is brought to the hospital by more than one person,
then normal practice is to write the name of nearest relative, as person
giving information and in such process names of all those others who
had brought patient are not reduced in writing in M.L.C. register. Here
in the case also when several other family members and especially father
of the deceased Sanjay was very much present and when there is every
possibility of P.W.1 Dhananjay rushing to the police station to lodge
complaint, there is nothing unnatural if the name of his father is
mentioned in the M.L.C. register as the person giving information. It is
also pertinent to note that Dr. Gore, who has made entry in the M.L.C.
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register Exh.143 has been not examined due to his physical disability
and Dr. Koli has admitted that he has no personal knowledge about the
information made in the M. L. C. Register. Therefore, possibility of
P.W.1 Dhananjay giving history cannot be ruled out. Being eldest of
family, his father's name might have been mentioned in the M.L.C.
Register.
37.
As regards Investigating Officer not seizing the rickshaw in
which deceased was brought, it's seizure was not necessary as rickshaw
was not used for commission of the offence. About non seizure of blood
stained clothes of P.W.1 Dhananjay, it can be considered as a lapse on
the part of Investigating Officer. The law is well settled that if
Investigating Officer has either negligently or deliberately committed
lapses in investigation, then it cannot affect the credibility of the version
of events given by prosecution witnesses. As held by Apex Court in case
of Ram Bihari Yadav -vs- State of Bihar, A.I.R. 1998 SC 1850, "If
primacy is given to a designed or negligent investigation or to the
omission or lapses created as a result of faulty investigation, the faith
and confidence of the people would be shaken not only in the law
enforcing agency but in the administration of justice". It would amount
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to playing at the hands of Investigating Officer.
38. Moreover, for proving presence of a particular witness on
the spot, presence of blood stains on his clothes not necessary. His
evidence as to actually witnessing incident is required to be appreciated
independently to see whether it has got credibility or not. The contents
of F.I.R. Exh.36 in the present case gives detailed account of the
incident, including names of the assailants, and gives guarantee of the
fact that it was lodged by someone who has witnessed the incident
personally.
39. Here in the case, the evidence of P.W.1 Dhananjay is
challenged also on the ground that in the complaint, the names of
accused Nos 5 and 6 are not appearing and as admitted by him, he has
stated their names and their roles, two days after the incident in his
supplementary statement recorded on 9.11.2006. According to learned
counsel for accused, the involvement of accused Nos. 5 and 6 in the
incident is, thus, after thought and that demolishes the credibility of
P.W.1 Dhananjay, as it amounts an attempt on his part to falsely
implicate as many number of persons as possible. In our considered
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opinion, however, considering the fact that he has honestly admitted that
he has disclosed the role and involvement of accused Nos. 5 and 6 in his
supplementary statement after two days, gives an inbuilt guarantee of
truthfulness of this witness. Otherwise he could have stated that he has
given their names, but police had not recorded them.
40.
It must be remembered that F.I.R. in the present case is
lodged within an hour after actual gruesome and ghastly incident of
murderous assault on his younger brother and friend of his younger
brother. As deposed by him, he was witness to the entire incident from
close quarters. Though he wanted to rescue his brother from the assault,
he was not allowed to intervene and save his brother as persons gathered
there had caught hold of him. One can, therefore, imagine the impact of
such incident on him. In the charged and excited state of mind, he must
have rushed to the police station, on coming to know about death of his
brother and brother's friend. It is but natural, therefore that at that time he
might have missed to mention the names and involvement of accused
Nos. 5 and 6 and only after funeral, when the said incident revived in his
mind, it might have occasioned to him that he failed to mention the
names of two accused persons. Considering the impact of the incident,
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therefore, there is nothing unnatural if the witness has disclosed about
role of these persons after two days.
41. Moreover, absolutely nothing is brought on record to point
out any reason for him to implicate accused Nos. 5 and 6 falsely as an
after thought. Admittedly his relations with either of the accused or even
with accused Nos.1 to 4 were not strained. The dispute was between his
brother Sanjay and Somnath on one side and the accused No.1 Vijay, but
not between him and any of the accused. No evidence is brought on
record to that effect. Therefore, the argument advanced that accused Nos.
5 and 6 are implicated subsequently and as an after thought, deserves to
be rejected. When the witness is giving truthful account of the incident
and also about the lapses on his part, then he should be believed instead
of discarding his evidence as an improvement.
42. Moreover, this is not a case where the evidence of P.W.1
Dhananjay has is not supported from other source. As stated above,
prompt lodging of F.I.R., the evidence of P.W.22 Investigating Officer
PI Jadhav and the various Station Diary Entries made during the course
of investigation support his evidence. In addition thereto, there is
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medical evidence, discussed above, which proves not only involvement
of 5 to 6 persons in the simultaneous attack on two persons but also
proves the use of weapons which this witness has deposed in his
evidence and also in his complaint. The medical evidence supports and
corroborates evidence of this witness that deceased Somnath was
assaulted on his head with sickle by accused No.1 Vijay with force. His
evidence that the other accused were assaulting Sanjay and Somnath
with knives in their hands is also proved from the medical evidence
which shows presence of several incise wounds. Thus, here the medical
evidence goes hand in hand and completely fortifies the evidence of
P.W.1 Dhananjay, therefore his testimony is not a stand alone evidence.
43. There is also corroborating evidence about recovery of the
weapons of assault, proved through testimony of P. W.20 panch Avinash
Jadhav and P.W.22 PI Jadhav. As per their evidence, at the instance of
accused No.1 Vijay, weapons of assault, namely sickle, knife (dagger),
two other knives bearing Article Nos 16 to 19 were recovered in
pursuance of memorandum panchnama and recovery panchnama at
Exh.90. These weapons were sent to Chemical Analyzer and as per
Chemical Analyzer's reports Exh.121 to 133, human blood stains were
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found thereon. Though the results of blood grouping may be
inconclusive, but presence of human blood on the weapons of assault
definitely gives corroboration to the case of prosecution, as deposed by
P.W.1 Dhananjay.
44. The last submission advanced by learned counsel for
accused is that the complaint Exh.36 lodged by P.W. 1 Dhananjay is not
a real F.I.R. as the police had received information of the incident earlier
to it and which was recorded in Station Diary Entry Nos.23, 24 and 25,
the extracts of which are produced on record vide Exh.117. These
extracts go to prove that First Information of the incident was received in
police station at 11.20 a.m. to the effect that some fight was going on at
Tiwari Galli, hence police force was despatched to the spot. Second
entry is made in Station Diary at 11.55 a.m. to the effect that C.M. O. Dr.
Mahadeo Gore, informed that patients namely Sanjay and Somnath were
brought to the hospital and father of Sanjay stated that at Panchmukhi
Maruti Building, near Allopathic Dispensary, Sanjay was assaulted and
died on the spot and Somnath was brought in injured condition around
11.45 a.m. and died at 11.50 a.m.. Third entry made at the same time
shows that this information was given to P.W.22 PI Jadhav. The fourth
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entry is made at 12.05 p.m. to the effect that API Shinde who had rushed
to spot at 11.20 a.m., reported that on reaching the spot, he became
aware of the fact that Sanjay and Somnath had been killed by accused
No.1 Vijay Pawar and his friends and the victims had been taken to
Civil Hospital before API Shinde reach to the spot. Last Station Diary
Entry is made at 12.20 p.m. about registration of the F.I.R. at Exh.36 on
the basis of the complaint lodged by P.W.1 Dhananjay. Hence according
to learned counsel for the accused, complaint lodged by P.W.1 at
Exh.36 cannot be called as real F.I.R.
45. In our opinion, this contention advanced by learned counsel
for accused also fails as it has now become crystallized position of law
that the cryptic information as to commission of offence given to police
by wireless message or on telephone, not disclosing sufficiently nature of
the offence, the names of assailants, the manner in which incident
occurred, cannot be treated as F.I.R. The F.I.R. must be of such nature
which will enable the police to set investigation machinery in process.
Mere information of the occurrence of some incident cannot be called as
an F.I.R. In the instant case, the Station Diary Entries, as noted above,
do not give details of the incident or the names of all the assailants and
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hence it has to be held that real F.I.R. of the incident is the complaint
Exh.36 lodged by P.W.1 Dhananjay.
46. Thus, on reappreciation of entire evidence on record in the
light of the submissions advanced by defence counsels, we are of the
opinion that the evidence of P.W.1 Dhanajay is completely reliable, it is
thoroughly consistent, cogent and trust-worthy and hence we have no
hesitation at all in placing reliance on him. His evidence also gets
sufficient corroboration from medical evidence and the recovery of
weapons and entire facts and circumstances of the case. The trial Court
has considered and properly appreciated all these different shades and
aspects of the evidence, as brought on record by prosecution and found
prosecution case to be proved beyond reasonable doubt. On entire re-
appreciation of evidence on record, we also do not find any reason to
take a view which can be different from the view taken by the trial
Court. The appeals, therefore, hold no merit and hence stand dismissed,
confirming conviction and sentence of the appellant Nos. 2 to 6, for the
offence punishable under Section 302 read with Section 34 of the Indian
Penal Code.
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47. As accused Nos. 2 to 4, are in jail undergoing sentence as
imposed by the trial Court, no further order is required relating to them.
48. As regards accused No.5 Amit @ Bandya and accused
No.6, Rohit Chavan, who are on bail, their bail bonds stand cancelled
and they are directed to surrender before the trial Court within 12 weeks
from the date of passing this order, for undergoing the remaining part of
their sentence, failing which the learned trial Court to take steps to
arrest them to undergo the remaining sentence.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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CERTIFICATE
Certified to be true and correct copy of the
original signed judgment.
