Bombay High Court
Anant @ Ananda Vasant Joshi vs State Of Maharashtra on 6 September, 2017
Bench: T.V. Nalawade
Criminal Appeal No.192/1999 with
connected appeals.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.192 OF 1999
1. Mukunda Vitthal Patil,
Age 33 years,
2. Dharmendra Naransing Valvi,
Age 24 years
3. Ananda Raman More,
Age 22 years
4. Ashok Vitthal Patil
Age 38 years
5. Raman Rambhau More,
Age 44 years.
All R/o Baherpura Area
Nandurbar, District Dhule
(and all are in jail at present) ... APPELLANTS
VERSUS
The State of Maharashtra ... RESPONDENT
.....
Shri V.D. Sapkal, Advocate for appellants
Shri S.B. Pulkundwar, A.P.P. for respondent
.....
WITH
CRIMINAL APPEAL NO.191 OF 1999
Anant @ Ananda Vasant Joshi,
Age 23 years,
R/o Nandurbar, District Dhule ... APPELLANT
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Criminal Appeal No.192/1999 with
connected appeals.
2
VERSUS
The State of Maharashtra ... RESPONDENT
.....
Shri P.C. Patel, Advocate for appellant
Shri S.B. Pulkundwar, A.P.P. for respondent
.....
WITH
CRIMINAL APPEAL NO.193 OF 1999
The State of Maharashtra ... APPELLANT
VERSUS
1. Ravindrasing Mohansing
Pardeshi, Age 38 years,
2. Rajendra Karansingh Valvi,
Age 25 years,
3. Sudam Vitthal Patil,
Age 29 years,
4. Kashinath Daga Marathe,
Age 60 years,
5. Girish Dinanath Deshmukh,
Age 23 yeas,
6. Himmat Sampat Saindane
Age 35 years,
7. Anil Hiralal Patil,
Age 23 years,
All R/o Baherpura Area,
Nandurbar, District Dhule. ... RESPONDENTS
.....
Shri S.B. Pulkundwar, A.P.P. for appellant
Shri P.D. Bachate, Advocate for respondent No.1.
Shri P.R. Nangare Advocate for R.No.2, 3, 5, 6 & 7(appointed)
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Criminal Appeal No.192/1999 with
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3
Shri P.C. Patel, advocate for respondent No.4 (appointed)
.....
WITH
CRIMINAL APPEAL NO.469 OF 1999
Mukund Vitthal Patil,
Age adult, Occ. Business,
R/o Nandurbar, Maharashtra
(presently undergoing the
term of imprisonment for life
in the Nasik Road Central Prison) ... APPELLANT
VERSUS
The State of Maharashtra
(At the instance of P.S.O.,
Nandurbar Town Police Station) ... RESPONDENT
.....
Shri P.C. Patel, Advocate for appellant
Shri S.B. Pulkundwar, A.P.P. for respondent
.....
WITH
CRIMINAL APPEAL NO.186 OF 2000
Ashok Vitthal Patil,
Age adult, Occ. Business,
R/o Nandurbar, Maharashtra
(presently undergoing the
term of imprisonment for life
in the Nasik Road Central Prison) ... APPELLANT
VERSUS
The State of Maharashtra
(At the instance of P.S.O.,
Nandurbar Town Police Station) ... RESPONDENT
.....
Shri Rajendra S. Deshmukh, Advocate for appellant
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Criminal Appeal No.192/1999 with
connected appeals.
4
Shri S.B. Pulkundwar, A.P.P. for respondent
.....
WITH
CRIMINAL APPEAL NO.261 OF 2000
Dharmendra Karansingh Valvi,
Age adult, Occ. Business,
R/o Nandurbar, Maharashtra
(presently undergoing the
term of imprisonment for life
in the Nasik Road Central Prison) ... APPELLANT
VERSUS
The State of Maharashtra
(At the instance of P.S.O.,
Nandurbar Town Police Station) ... RESPONDENT
.....
Shri P.C. Patel, Advocate for appellant
Shri S.B. Pulkundwar, A.P.P. for respondent
.....
CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 20th July, 2017
Date of pronouncing judgment : 6th September, 2017.
JUDGMENT (PER SUNIL K. KOTWAL, J.)
1. Criminal Appeal No.192/1999 is filed by convicted
accused No.6 and 9, 10, 12 and 13 against the judgment and
order passed by Sessions Judge, Dhule in Sessions Case
No.112/1994. The respondent is the State of Maharashtra.
Criminal Appeal No.192/1999 with
connected appeals.
2. Criminal Appeals No.191/1999, 469/1999, 186/2000
and 261/2000 are the appeals preferred by original convicted
accused No.11, 6, 12 and 9 respectively. Criminal Appeal
No.193/1999 is filed by the State against the judgment and order
of acquittal of accused No.1 to 5, 7 and 8. All these appeals are
disposed of by this common judgment.
3. Facts leading to institution of these appeals are that,
accused No.1 was prosecuted for the offence punishable under
Section 120-B of the Indian Penal Code and accused No.2 to 13
were prosecuted for the offences punishable under Sections 147,
148, 302 read with Section 149 of the Indian Penal Code; Section
307 read with Section 149 of the Indian Penal Code; Section 324
read with Section 149 of the Indian Penal Code and under
Section 3 read with 25 of the Arms Act, 1959 as well as under
Section 37(1)(3), punishable under Section 135 of the Bombay
Police Act. Accused No.12 was also prosecuted for the offence
punishable under Section 201 of the Indian Penal Code.
4. Prosecution case in brief is that, on 24/2/1994 in the
morning hours, Morcha was arranged at Nandurbar, protesting
against act of the Municipal Council, Nandurbar, imposing
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reservation on the prime piece of land, which was reserved for
Jijamata Education Institution. At that relevant time, accused
No.1 was the President and accused No.13 was the Councilor of
Municipal Council, Nandurbar. Madhukar Onkar Varsale
(deceased) was one of the B.J.P. worker as well as Secretary of
Youth Wing of B.J.P. Party, Nandurbar. On the other hand, at
that relevant time, Congress I Party was ruling party and accused
No.1 to 13 were active members of Congress I Party. Deceased
Madhukar took prominent part at the time of this protest
procession, which went to the office of Assistant Collector,
Nandurbar, where the representation was submitted by
representatives of the said procession. As per prosecution case,
on account of prominent part taken by the deceased Madhukar at
the time of protest procession, the leaders of Congress I Party
got annoyed. In the result, conspiracy was hatched to rid off
deceased Madhukar.
5. On the same day, at about 10.00 to 10.30 p.m.,
deceased Madhukar along with his friends Shekhar Patil (P.W.1),
Dilip Tarachand Patil, Anil Ashok Waghare (P.W.4), Shankar
Dagadu Marathe (P.W.5) and other total 8 to 9 persons went to
have a cup of tea as usual, to the tea stall which belonged to
Bhuteshwar Tamboli (P.W.10). After having cup of tea, they
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started returning to their respective residences. When deceased
Madhukar, Shekhar Patil (P.W.1), Anil Waghare (P.W.4), Shankar
Dagadu Marathe (P.W.5), when reached in Baherpura area at
Tari Petha Road, suddenly, accused No.2 to 13 appeared on the
spot from behind the deceased Madhukar and others. That time,
some of these assailants were armed with deadly weapons like
swords, sword sticks and dagger. They stabbed deceased
Madhukar repeatedly, as a result of which, he suffered multiple
wounds and fell to the ground in pool of blood. Shekhar Paitl
(P.W.1) tried to intervene, but during that attempt, he was also
injured by accused No.9 Dharmendra Valvi by sword. He
sustained grazing injury on the right side of his chest. All the
assailants were identified by the witnesses present on the spot
along with the deceased Madhukar. Shankar Marathe (P.W.5)
immediately rushed to the nearby residence of deceased
Madhukar and informed his family members about the
occurrence. In the meantime, some of the assailants threw their
weapons on the spot and all assailants bolted away from the
spot. Autorickshaw was immediately called and the injured
Madhukar was initially taken to the nearby Police Station. The
concerned Police Station Officer referred the injured to J.P.N.
Hospital, Nandurbar with M.L.C. Memo. The Medical Officer
examined injured Madhukar in J.P.N. Hospital and declared him
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as "dead". By that time, family members of deceased, who
reached on the spot, came to know that Madhukar was taken to
the hospital. Rajendra Varsale (P.W.2), who is brother of the
deceased Madhukar, came to the hospital and after knowing
regarding the death of deceased Madhukar, went to Police
Station and lodged F.I.R. (Exh.67) at about 1.00 a.m. on
25/2/1994. Above offences came to be registered against
accused No.2 to 13.
6. Initially, the investigation was carried out by the then
Circle Police Inspector Shri R.K. Rathod (P.W.21), who prepared
inquest panchanama and referred the dead body of the deceased
Madhukar for post mortem examination. Dr. Rajeshwar Thakre
(P.W.12) performed autopsy examination of the dead body of
deceased Madhukar. Investigating Officer had also drawn spot
panchanama (Exh.138) of the scene of offence and seized one
blood stained sword, sword stick, two plastic handles of sword
stick and 4 blood stained wooden pieces of the handle of sword
stick as well as one handle of the sword. Specimen of blood
mixed earth as well as normal earth were obtained from the spot.
During the course of investigation, accused No.1, 2, 3 and 4 were
arrested on 25/2/1994. Thereafter investigation was handed
over to P.I. Shri Kharote (P.W.23). He started recording
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statements of the witnesses as well as seized blood stained
clothes from eye witness Shekhar Patil (P.W.1). Record of Octroi
Check Post of Municipal Council was seized where the accused
No.1 paid visit after the incident. Blood stained clothes of
accused No.2, 3 and 4 were seized. After arrest of accused No.5
to 9, their blood stained clothes were seized under panchanama.
As per disclosure statement made by accused No.7 and 9 at their
instances, additional weapons of the offence were seized. On
4/3/1994, accused no.10 and 11 were arrested. Sketch map
(Exh.135) of the spot of incident was obtained. Accused No.12
had surrendered before Nasik Police and he was brought to
Nandurbar and he was arrested. Accused No.13 was arrested by
Bombay Police and he was brought to Nandurbar on 14/3/1994.
As per disclosure statement given by accused No.11 and 13,
weapons of the offence were seized. On 24/3/1994, all seized
muddemal was referred to Chemical Analyser, Aurangabad for its
examination. After completion of the investigation, charge sheet
was submitted against accused No.1 to 13 before Judicial
Magistrate, First Class, Nandurbar.
7. Offence punishable under Section 302 of the Indian
Penal Code being exclusively triable by Court of Sessions, this
case was committed to the Sessions Court, Dhule. Charge was
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framed against accused No.1 under Section 120-B of the Indian
Penal Code against accused No.2 to 13 for the offences
punishable under Sections 147, 148, 323, 302 read with Section
149 of the Indian Penal Code. Separate charge was also framed
against accused No.12 for the offence punishable under Section
201 of the Indian Penal Code. All accused pleaded not guilty and
claimed trial.
8. Defence of the accused is of total denial. They
contended that, entire case is fabricated against them by local
rival political leaders, taking advantage of the fact that Madhukar
Varsale was found lying in injured condition at the relevant time.
He was assaulted by unknown assailants. The rival political party
took advantage of this situation and concocted false F.I.R. and
prepared false witnesses to falsely implicate the accused in the
case.
9. After considering the evidence placed on record,
learned trial Court pleased to convict accused No.6, 9, 10, 11, 12
and 13 for the offences punishable under Sections 147, 148, 323
read with Section 149; under Section 302 read with Section 149
of the Indian Penal Code and under Section 3 read with 25 of the
Arms Act and also under Section 37(1)(3) of the Bombay Police
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Act. The convicted accused were sentenced to suffer
imprisonment for life and fine of Rs.5000/- each for the offence
punishable under section 302 read with Section 149 of the Indian
Penal Code. Separate sentence was not imposed under Sections
147, 148, 323 read with Section 149 of the Indian Penal Code
and under Sections 3 read with 25 of the Arms Act as well as
under Section 37(1)(3) read with 135 of the Bombay Police Act.
Accused No.1 was acquitted of the offence punishable under
Section 120-B of the Indian Penal Code and accused No.2, 3, 4,
5, 7 and 8 were acquitted of all the offences with which they
were charged. Accused No.12 was also acquitted of the offence
punishable under Section 201 of the Indian Penal Code.
Therefore, these counter criminal appeals arise.
10. In the case at hand, homicidal death of deceased
Madhukar is not disputed by the defence. Otherwise also, Dr.
Rajeshwar Thakre (P.W.12), who performed autopsy examination
of the dead body on 25/2/1994 in between 8.30 a.m. to 9.05
a.m., has proved the post mortem notes (Exh.81). From the
testimony of this witness, it emerges that, he noticed following
11 incised wounds :-
(1) Incised wound on chin, oblique, sharp edged, 6 cm. long,
muscle depth.
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(2) Incised wound below 12th rib left side, horizontal 3 x 1 cm.
(3) Incised wound below umbilicus left side 3 x 1 cm.
(4) Incised wound on right hypochordrium, triangular sharped,
dimensions are 2 x 2 x 2 cm.
(5) Incised wound, in anterior axillary line in 4th intercostal
space, left side 3 x ½ cm.
(6) Incised wound on left arm, medially horizontal 2 x 1 cm.
muscle depth.
(7) Incised wound on left arm medially below injury No.6,
oblique, 2 x ½ cm. muscle depth.
(8) Incised wound on left renal angle area, horizontal 6 x 2 cm.
muscle depth.
(9) Incised wound on right forearm in middle 1/3 rd
dorsolaterally 2 x ½ cm. muscle depth.
(10) Incised wound on right thigh just above knee joint
anteriorly, horizontal, 4 x 5 ½ cm. muscle depth.
(11) Incised wound on left thigh just above knee joint
anteriorly, horizontal, 4 x ½ cm. muscle depth.
This medical expert has also proved the internal
corresponding injuries to the spleen, small intestine, colon, on
ileum, left lung, pericardium and upper chamber of the heart of
the deceased. He opined that, these all injuries were ante
mortem and the cause of death was due to multiple penetrating
wounds on heart, lung, spleen and intestine. According to this
witness, irrespective of state of health, the person sustaining
such injuries was bound to die immediately after infliction of all
these injuries. This expert witness has also made it clear that, all
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the above injuries are possible with sharp and pointed
instrument.
11. In the entire cross-examination of this witness, the
nature of above referred injuries as well as cause of death of the
deceased is not at all disputed by the defence. The entire cross-
examination was concentrated on the point of probable time of
death and the nature of the injuries found on the body of witness
Shekhar Patil (P.W.1). Therefore, taking into consideration
testimony of Dr. Rajeshwar (P.W.12), corroborated by post
mortem notes (Exh.81), we have no hesitation to hold that
deceased Madhukar died of homicidal death.
12. Now we propose to examine whether prosecution can
further establish that accused No.2 to 13, with requisite intention
or knowledge, caused the homicidal death of deceased. Learned
defence counsel raised objection that, motive behind the murder
is not established by the prosecution. Contention of learned
Advocate for the accused is that, no evidence has been placed on
record by prosecution to establish that on 24.2.1994 at noon
hours, deceased Madhukar was member of procession which was
arranged in protest to reservation of land reserved for Jijamata
Educational Institution. He also pointed out that, deceased
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Madhukar was also involved in other various criminal cases and
he had many enemies. In reply, learned A.P.P. for the State has
drawn our attention towards resolution of Municipal Council,
Nandurbar, dated 5/2/1994 regarding the reservation of Survey
No.185/1B.
13. No doubt, from the cross-examination of prosecution
witnesses, it emerges that deceased Madhukar was a small
worker of B.J.P. Party and he was not at all related with Jijamata
Education Society. Therefore, he had no reason to join the
protest procession for reservation of land of the said educational
institution. No witness is examined by prosecution who
participated in the said protest procession along with deceased
Madhukar to establish that he actually participated in the protest
procession. On the other hand, from the cross-examination of
Tahsildar Vasudeo Valvi (P.W.18), it emerges that, deceased
Madhukar was not present when representation was given to the
Prant Officer. Therefore, prosecution cannot establish that on
24/2/1994 at noon hours, deceased Madhukar played any
prominent part in the protest procession. Therefore, by no
stretch of imagination it can be held that on 24/2/1994,
deceased Madhukar played prominent role in the protest Morcha
which was arranged against Municipal reservation. Assuming
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that Madhukar played any prominent role at the time of protest
Morcha, however, such trifle act of a small member of a political
party cannot be a reason to commit his murder at the instance of
President of Municipal Council i.e. accused No.1. Therefore,
contention of learned Advocate for defence is certainly acceptable
that prosecution cannot establish clear motive behind murder of
deceased Madhukar.
14. However, this case is not totally based on
circumstantial evidence. The prosecution mainly relied on direct
evidence of eye witnesses of the incident. Therefore, absence of
motive does not adversely affect the fate of this case.
15. In this matter, accused No.1 was the then President
of Municipal Council, Nandurbar, who is charged only under
Section 120-B of the Indian Penal Code. Under Section 120-A,
the criminal conspiracy is defined as under :
120-A. Definition of criminal conspiracy :-
When two or more persons agree to do, or cause
to be done -
(1) an illegal act, or
(2) an act which is not illegal by illegal means,
such an agreement is designated a criminal
conspiracy:
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Provided that no agreement except an
agreement to commit an offence shall amount to
a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such
agreement in pursuance thereof.
16. Therefore, charge under Section 120-B cannot be
framed against only one person. Conspiracy can be in between
two and more persons and one person cannot conspire with
himself. Therefore, charge under Section 120-B of the Indian
Penal Code only against accused No.1 is basically defective.
17. Otherwise also, to establish the guilt of accused No.1
under Section 120-B of the Indian Penal Code, prosecution has
placed reliance on testimony of Constable Shinde (P.W.11) who
has proved the presence of accused No.1 at Octroi Checkpost at
Nandurbar at 11.30 p.m. i.e. on the date of the incident.
However, it cannot be ignored that, accused No.1 was the then
President of Municipal Council, Nandurbar and as a part of his
duty, he may pay surprise visit to any Octroi Checkpost at
midnight hours. Therefore, visit of accused No.1 at midnight to
Octroi Checkpost, Nandurbar cannot establish a link of
circumstantial evidence to connect accused No.1 with criminal
conspiracy to commit murder of deceased Madhukar.
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18. Second circumstance which has been placed on
record by prosecution is visit of accused No.1 to Police Station
when he came to know about the occurrence of the incident.
Even from the testimony of the then Dy. Superintendent of
Police, Amalner Shri Dhoom (P.W.22), it emerges that, after
receiving intimation of the occurrence from P.I., Nandurbar Police
Station Shri Rathod at about 12.30 a.m., he rushed to Police
Station, Nandurbar and found accused No.1 having exchange of
words with some persons who belonged to B.J.P. Party.
Therefore, Shri Dhoom (P.W.22) intervened and asked accused
No.1 to sit in the office of Police Inspector. By that time, B.J.P.
Leader Balasaheb Pathak reached to Police Station and informed
that, some of his workers had seen some accused persons
running towards the house of accused No.1 situated at
Pardeshipura, Nandurbar. Thereafter accused No.1 made
telephone call to his residence and informed his family members
that if police arrives, they should be allowed to search the house.
Thereafter, Dy. Superintendent of Police Shri Dhoom (P.W.22)
removed the telephone receiver from the hand of accused No.1.
However, on the basis of such evidence, conclusion cannot be
drawn that accused No.1 intimated, some harboured accused in
his house about the probable search by the police. This act can
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be innocent act of the accused No.1 to direct his family members
to cooperate the police if they tried to take search of the house.
Therefore, this isolated act of accused No.1 is not sufficient to
establish that accused No.1 hatched conspiracy to commit the
murder of deceased Madhukar.
19. The last piece of evidence placed on record by
prosecution is the testimony of Madhukar Marathe (P.W.3) and
Shankar Marathe (P.W.5), who claim that they heard somebody
saying that accused No.12 and 13 have proceeded towards Dhule
Road and, therefore, they went to that area and saw accused
No.12 running towards Dhule Road whereas accused No.13
running towards house of accused No.1. Admittedly, none of the
accused were found in the residence of accused No.1 when it was
searched by police. Therefore, on the basis of such weak
evidence, prosecution cannot establish charge under Section
120-B of the Indian Penal Code against the accused No.1. The
view taken by learned trial Court while acquitting the accused
No.1 is probable view and we do not find any reason to interfere
the order of acquittal of accused No.1, passed by learned trial
Court.
20. Regarding accused Nos.2 to 13 prosecution has
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placed on record two sets of evidence i.e. "direct evidence" and
"circumstantial evidence". Initially we will proceed to examine
the circumstantial evidence available against the accused
persons. The circumstantial evidence is in the form of recovery
of blood stained clothes from the person of accused as well as
recovery of blood stained weapons of the offence as per
disclosure statements of the accused.
21. To prove the seizure of blood stained clothes from the
accused persons, prosecution has placed reliance on the
testimony of Kashinath Marathe (P.W.15), who deposes that on
28.02.1994 in his presence and in presence of second panch
Ratilal, police seized clothes from accused No.2 Rajendra and
accused No.3 Sudam Patil. This witness was not knowing the
names of these accused persons, however, he has identified
accused Nos.2 and 3 at the time of recording of his evidence.
However, the testimony of this panch witness is not reliable for
the reason of absolutely vague statement before the Court
regarding seizure of the clothes. He nowhere deposes that
exactly which clothes were seized from the possession of which
accused person. From his cross-examination, it also emerges
that he works in the hotel of one Kashinath Dube which is
adjacent to the Police Station and he acted as a panch in near
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about 1000 to 1200 cases. Therefore, on the basis of vague
testimony of such habitual police panch the prosecution cannot
prove seizure of blood stained clothes from accused No.3 Sudam
under seizure memo (Exh.121). The seizure panchnama
(Exh.122) of the seizure of clothes of accused No.2 Rajendra is of
no help to the prosecution for the simple reason that panch
Kashinath (P.W.15) nowhere deposed in his evidence regarding
existence of blood stains on the clothes of any accused person.
22. Even Investigating Officer Prabhakar Kharote
(P.W.23) vaguely deposes regarding seizure of clothes from
accused Nos. 2, 3 and 4 on 28.02.1994. This important police
witness casually deposed before the Court that on 01.03.1994 he
arrested accused Nos. 5, 6, 7, 8 and 9 and seized their clothes
under panchnamas (Exh.97 and 98). This witness nowhere
deposed that at the time of seizure of clothes from accused
persons he ever detected blood stains on their clothes. Thus, it
is suffice to say that the evidence placed by prosecution
regarding seizure of the clothes from the accused persons is
absolutely vague and unreliable.
23. To establish recovery of blood stained weapons of the
offences as per the disclosure statements of accused, which is
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relevant under Section 27 of the Evidence Act, the prosecution
has examined panch Promod (P.W.13). When the prosecution
can establish that weapons of the offence were recovered as per
the information given by accused when they were in police
custody and the seized weapons were used in commission of the
offence, then only the information given by accused to the police
leading to discovery of weapons of the offence will become
relevant under Section 27 of Evidence Act. In the case of
"Shankar Gopal Patil V/s State of Maharashtra", reported in
[2000 ALL MR (CRI) 186], the Division Bench of this Court
ruled that, Section 27 of the Evidence Act requires witness to
prove in his deposition, statement of the accused, which relied
upon to discover the object and the fact of accused keeping or
concealing the object at a particular place. Supreme Court in the
case of, 'Amit Singh Bhikamsing Thakur V/s. State of
Maharashtra', reported in [AIR 2007 SC 676] has summed up
various requirements of Section 27 of the Evidence Act, which
are reproduced as follows:
"(i) The fact of which evidence is sought to be given
must be relevant to the issue. It must be borne in
mind that the provisions has nothing to do with
question of relevancy. The relevancy of the fact
discovered must be established according to the
prescriptions relating to relevancy of other evidence
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connecting it with the crime in order to make the
fact discovered admissible.
(ii) The fact must have been discovered.
(ii) The discovery must have been in consequence
of some information received from the accused and
not by accused's own act.
(iv) The persons giving the information must be
accused for any offence.
(v) He must be in the custody of the police officer.
(vi) The discovery of a fact in consequence of
information received from an accused in custody
must be deposed to.
(vii) Thereupon only that portion of the information
which relates distinctly or strictly to the fact
discovered can be proved. The rest is inadmissible.
24. Panch Pramod (P.W.13) deposes before the Court
that on 15.03.1994 alongwith one Hiralal Mali this witness was
called by police to Police Station, Nandurbar at about 11.00 a.m.
and that time accused No. 13 Raman More was present at Police
Station. According to this witness, in his presence police
recorded the statement (Exh.84) of accused No.13 Raman and
thereafter accused No.13 Raman took the police and panchas to
one Pan Shop and he took out one blood stained dagger
(Katyar), which was kept behind one photo frame outside the
said Pan Shop. He has also proved the seizure panchnama
(Exh.85). From his testimony, it further emerges that on the
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same day at about 5.00 p.m., again in presence of same
panchas, police recorded statement (Exh.86) of accused No.11
Ananda Gondhali and thereafter accused No.11 Ananda took the
police and panchas near the hotel of accused No.13 Raman More
and after climbing on the roof of that hotel, accused No.11
Ananda produced two sword sticks before the police. This
witness has proved seizure panchanama (Exh.87). However, this
witness nowhere deposed regarding the exact information given
by accused No.11 Ananda and accused No.13 Raman to the
police in police custody. The vague statement of this panch
witness that in his presence police recorded statement of these
both accused is not sufficient to prove the exact information
given by accused No.11 Ananda and accused No.13 Raman which
leads to recover one dagger and two sword sticks. Thus, in view
of the legal principles set out by this Court in the case of
Shankar Gopal Patil Vs. State of Maharashtra (cited supra)
as well as by the Apex Court in the case of Amit Singh V/s
State of Maharashtra (cited supra), the evidence of this panch
Pramod (P.W.13) falls short to establish the discovery of
weapons (Article 44 to 46) in accordance with the statements
given by accused Nos.11 and 13 to the police. As the statements
of accused Nos.11 and 13 itself are not proved, it will not be
relevant under Section 27 of the Evidence Act. Otherwise also,
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as per the statement (Exh.84) of accused No.13 Raman More,
the dagger was thrown on the roof of Pan Stall and as per
recovery panchnama (Exh.85), the said dagger was seized from
the roof of Pan Stall. Thus, the oral testimony of Pramod
(P.W.13) is totally in conflict with the contents of memorandum
(Exh.84) and recovery panchnama (Exh.85). Thus, the
testimony of Pramod (P.W.13) is unreliable.
25. Prosecution has also placed reliance on testimony of
panch Hiralal Mali (P.W.16) who proved recovery of knife
(Article-34) as per the disclosure statement of accused No.7
Himmat Saindane as well as recovery of sword (Article-35) as per
the disclosure statement given by accused No.9 Dharmendra
Valvi. However, after going through the testimony of panch
Hiralal Mali (P.W.16) it emerges that he nowhere deposes
regarding exactly what disclosure statement was given by
accused No.7 Himmat Saindane and accused No.9 Dharmendra
Valvi. Therefore, as the statements of accused Nos.7 and 9,
which leads to discovery of knife and sword, are not established
by the prosecution, the recovery of knife and sword will not be
relevant under Section 27 of the Evidence Act.
26. Another important aspect is that, from the cross-
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examination of Hiralal Mali (P.W.16), it emerges that, in this case
he acted as a panch in six panchnamas, though his residence is
at the distance of half kilometer from Police Station, Nandurbar.
From the cross-examination of this witness, it emerges that at
that relevant time he used to work as a Secretary of Nandurbar
City Bhartiya Janta Party and the second panch Pandurang was
Taluka President of Nandurbar Bhartiya Janta Party. From his
cross-examination, it becomes clear that this panch witness as
well as second panch Pandurang are the active members and
Office Bearers of Bhartiya Janta Party, Nandurbar, and therefore,
on the basis of the above discussed vague testimony of these
interest panch witnesses, the prosecution cannot establish
recovery of knife and sword as per the disclosure statement of
accused No.7 Himmat and accused No.9 Dharmendra.
27. Even the testimony of Investigating Officer Prabhakar
Kharote (P.W.23) regarding the statements given by accused
No.7 Himmat and accused No.9 Dharmendra leading to discovery
of knife and sword is absolutely vague. This responsible police
officer nowhere deposes exactly in which words statements was
given by these both accused persons. More surprising thing is
that, the Investigating Officer Kharote (P.W.23) nowhere deposes
exactly from which places knife and sword were produced by
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accused No.7 Himmat and accused No.9 Dharmendra.
Therefore, otherwise also the testimony of Investigating Officer
Kharote (P.W.23) is of no help to establish the recovery of
weapons of offence as per disclosure statement given by accused
Nos.7 and 9.
28. As discussed above, the evidence placed on record by
prosecution in the form of recovery of blood stained clothes from
the possession of accused persons and recovery of weapons of
offence as per disclosure statements given by accused persons,
is absolutely unreliable to connect any of the accused persons
with the alleged crime of murder. Otherwise also, the learned
defence Counsel has rightly pointed out that the prosecution has
not examined the custodian of muddemal as well as carrier of the
muddemal by police station to establish that muddemal was in
the same sealed condition from the date of seizure till it reaches
to Chemical Analyzer, on 24.03.1994. From the forwarding letter
(Exh.194), it emerges that, on 24.03.1994 all the muddemal
articles were referred to Chemical Analyzer, Aurangabad for
examination. Thus, it was kept at Police Station, Nandurbar till
24.03.1994. It is the duty of the prosecution to establish that
the seized muddemal articles were kept throughout in a sealed
condition from the date of seizure till its delivery to Chemical
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Analyzer. In the case of "State of Maharashtra V/s Prabhu
Gade", reported in (1995 CRI.L.J. 1432), the Division Bench of
this Court ruled that it is the duty of the prosecution to show that
from the time of recovery of muddemal articles till the time they
were sent to C.A., they were kept throughout in a sealed
condition. This is imperative because the possibility that the
prosecution may have put human blood on the seized articles
during that interregnum cannot be ruled out. However, in
absence of evidence of custodian of the muddemal articles and
its carrier to Chemical Analyzer, Aurangabad, the prosecution
cannot rule out the possibility of tampering of the muddemal
articles when they were kept at Nandurbar Police Station, for a
considerable long period. On this count also the circumstantial
evidence placed on record by the prosecution in the form of
recovery of blood stained clothes from the possession of accused
persons and recovery of blood stained weapons of offences is
unreliable.
29. Now, turning to direct evidence. Prosecution has
placed reliance on testimony of three eye witnesses, (1) Shekhar
Tarachand Patil (P.W.1), who also sustained injury at the time of
occurrence (MLC Exh.82); (2) Anil Waghare (P.W.4) and Shankar
Dagadu Marathe (P.W.5); and (3) Rajendra Onkar Varsale
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(P.W.2) is the brother of deceased Madhukar, and this witness is
informant, who lodged F.I.R. (Exh.67). However, oral testimony
of Rajendra Varsale (P.W.2) does not carry much importance for
the simple reason that he is not eye witness of the occurrence
and he reached on the spot after knowing about the occurrence
through Shankar Marathe (P.W.5). Bhuteshwar Shankar Tamboli
(P.W.10) is a tea stall owner, whose tea stall was visited by
deceased along with Shekhar Patil (P.W.1), Shankar Marathe
(P.W.5) and other 6 to 7 friends, few minutes before the
occurrence of the incident. Balu Marathe (P.W.9) is the
autorickshaw driver by whose rickshaw the injured Madhukar
was taken to Police Station, Nandurbar and thereafter to J.P.N.
Hospital, Nandurbar, where the deceased Madhukar was declared
"dead". A.P.I. Pundlik Sonar (P.W.14) is the Police Station
Officer who was present at Police Station, Nandurbar at the
relevant time of the occurrence and who received and registered
F.I.R. (Exh.67). Ashok Pundlik Joshi (P.W.17) is Clerk in
Municipality, Nandurbar, who produced the register of visit by
accused No.1 to the Octroi Checkpost at the relevant time of the
incident. Vasudeo Valvi (P.W.18) is the then Tahsildar,
Nandurbar, who has proved the promulgation of prohibitory order
issued by Collector under Section 37(1)(3) of the Bombay Police
Act. Raghunath Patil (P.W.20) is the then Revenue Circle Officer
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who prepared sketch map (Exh.134) of the scene of the offence.
Rohit Rathod (P.W.21) is the Circle Police Inspector, Prabhakar
Kharote (P.W.23) is the investigating officer who carried out rest
of the part of the investigation after 25/2/1994. Yadao Dhoom
(P.W.22) is the then Dy. S.P.
30. From the testimony of Shekhar Tarachand Patil
(P.W.1), it emerges that, on the date of incident at about 9.30
a.m., local front known as "Nagari Aghadi" had taken protest
procession against the reservation imposed by Municipal Council,
Nandurbar on the prime land reserved for Jijamata Education
Society, run by Dr. Dilip More at Nandurbar. According to this
witness, deceased Madhukar was leading the protest procession,
which ended at Assistant Collector's Office, Nandurbar. This part
of the evidence is already discussed in the initial part of the
judgment. Therefore, no more discussion is required regarding
the motive behind the murder of Madhukar. Otherwise also, in
Sheo Shankar V/s State of Jharkhand, reported in (AIR
2011 SC 1403), Apex Court ruled that, if the Court, upon
proper appraisal of deposition of eye witnesses, comes to the
conclusion that, the version given by them is credible, absence of
evidence to prove the motive is rendered inconsequential.
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31. From the testimony of Shekhar Patil (P.W.1), it
reveals that, on the date of incident at about 10.00 to 10.30
p.m., along with deceased Madhukar, Anil Ashok Waghare
(P.W.4), Dilip Tarachand Shinde, Vinod Waghare, Rajendra
Vasant Shinde, this witness had gone to the tea stall of
Bhuteshwar Tamboli (P.W.10) near Jyoti Guest House of Station
Road, Nandurbar. After having the tea, after 10 to 15 minutes,
they started returning to their respective residences. On way,
Rajendra Shinde, Hemant Shinde and Vinod Waghare returned to
their respective residences. When along with deceased
Madhukar these remaining friends were passing by Tari Petha
Road, at that time, suddenly, accused No.2 to 13 came from
back side of these witnesses and deceased. Accused No.11
Anant @ Ananda Joshi, accused No.6 Mukund Patil, accused
No.10 Ananda More stabbed deceased Madhukar by their sword
sticks in the stomach of Madhukar respectively. Accused No.12
Ashok Patil stabbed Madhukar in stomach by sword which was in
his hand and accused No.9 Dharmendra Valvi stabbed Madhukar
by sword from back side. Accused No.13 Raman More inflicted
katyar blow on the hands and legs of deceased Madhukar. That
time, accused No.2, 3 and 7 had caught hold deceased Madhukar
and accused No.4, 5 and 8 surrounded Madhukar and they were
pushing away the other persons present on the spot. While
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collapsing to the ground, deceased Madhukar told Shankar
Dagadu Marathe to informed his residence about the occurrence.
When Shekhar Patil (P.W.1) tried to intervene, that time,
accused No.9 Dharmendra Valvi inflicted sword blow on the body
of this witness and that time, the sword just grazed right side of
the chest of this witness and thereby this witness also sustained
injury. When family members of deceased Madhukar reached on
the spot, accused persons threw the weapon on the spot and
bolted away. Later on, people from neighbourhood gathered on
the spot and one autorickshaw was called. Shankar Patil (P.W.1)
and his other friends took injured Madhukar who was lying in the
pool of blood to Police Station, Nandurbar, by the same
autorickshaw. Police handed over letter to hospital and
immediately Madhukar was rushed to the hospital. However, the
Medical Officer, who examined Madhukar, declared that
Madhukar was dead. From the testimony of this witness, it
emerges that, his injury was also treated in the same hospital
and his clothes were stained with the blood of deceased
Madhukar. His clothes were cut on the spot where this witness
sustained injury. On 25/2/1994, those blood stained clothes of
this witness were seized by police at his residence and
panchanama was drawn. This witness has identified his clothes
at Articles 8, 9 and 10. Version of Shekhar Patil (P.W.1) is fully
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corroborated by second eye witness Anil Waghare (P.W.4) and
Shankar Marathe (P.W.5), in all material particulars, since their
visit to tea stall along with deceased and assault to the deceased
Madhukar by accused No.6, 9 to 13 by respective weapons, gupti
and sword. According to Shankar Marathe (P.W.5), after the
occurrence, he immediately went to the house of Madhukar and
informed his brother about the incident. When Shankar Marathe
(P.W.5) returned to the spot from the residence of Madhukar, he
noticed that, all accused were running away towards Gandhi
Statue.
32. Even Rajendra Varsale (P.W.2), who is the brother of
deceased, has fully corroborated the version of Shankar (P.W.5)
by deposing that, on the date of incident, at about 10.30 p.m.,
deceased Madhukar had gone for cup of tea and when all family
members were about to sleep, that time, Shankar (P.W.5) called
this witness from courtyard and informed that Madhukar was
assaulted by accused Ashok, Mukund, Raman and Dharmendra
and his friends. According to this witness, when he reached on
the spot, that time the assailants were running away towards
Gandhi Statue area and Madhukar was lying on the spot in
injured condition.
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33. From the testimony of this witness, it further
emerges that, Madhukar was taken to Police Station, and from
there, to the hospital. Therefore, when this witness rushed to
the hospital, he came to know that Madhukar was dead. After
preparation of inquest panchanama, Rajendra (P.W.2) went to
Police Station and lodged F.I.R. (Exh.67) at about 1.00 a.m.
34. Learned Advocate for the accused persons raised
objection that the inquest panchanama (Exh.61) was drawn in
between 12.05 a.m. to 12.35 a.m. on 25/2/1994 and F.I.R.
(Exh.67) is registered at 1.00 a.m. on 25/2/1994 and station
diary entry (Exh.89), dated 24/2/1994 shows that, police officer
went on the spot and started search of the accused persons,
which indicates that, the F.I.R. must be prior to 1.00 a.m. on
25/2/1994, which is suppressed by the prosecution. It is also
pointed out that, Crime No.36/1994 is mentioned in the inquest
panchanama. Reliance was placed on following cases :
(1) Hemraj & ors. Vs. State of Haryana
[ 2005 CRI.L.J. 2152 (S.C.) ]
(2) State of Andhra Pradesh Vs. Punati Ramulu & ors.
[AIR 1993 SC 2644]
(3) Bijay Singh & anr. Vs. State of Bihar
[2002 CRI.L.J. 2623]
(4) Haryana Shiledar Vs. State of Maharashtra
[1999 ALL MR (CRI.) 298]
Criminal Appeal No.192/1999 with
connected appeals.
(5) Dipak Vs. State
[2002 ALL MR (CRI.) 1930]
35. No doubt, in the case at hand, after the occurrence,
initially the injured Madhukar, who was lying on the spot, was
taken to Police Station, Nandurbar by Shekhar Patil (P.W.1) and
his other friends. From the testimony of Shankar Marathe
(P.W.5), it further emerges that, at Police Station, when he
reached by autorickshaw along with injured Madhukar and other
friends, he went inside the police station and informed the police
regarding assault to Madhukar and thereafter Police gave him a
memo and asked him to take Madhukar to the hospital. Even
Police Head Constable Laxman Wasave (P.W.19) supported this
version by deposing that, on 24/2/1994 at night he was working
as Station House Officer and that time, the injured was brought
to police station in rickshaw by 2 to 4 persons and that time,
Shekhar Patil (P.W.1), who was holding injured in the rickshaw,
told his name. Therefore, this witness immediately issued a
memo (Exh.65) to the hospital. This witness has also proved
Station Diary entry No.46 (Exh.89). After going through the
testimony of this Police Head Constable (P.W.19), it becomes
crystal clear that, all the details of the occurrence were not
disclosed to him by the persons who brought the injured to Police
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Station. Even in the memo (Exh.65), only cryptic information
regarding assault to Madhukar Varsale is mentioned. The second
memo (Exh.132) issued by this witness to Honourary Magistrate,
Nandurbar on 24/2/1994, requesting him to record dying
declaration of Madhukar Varsale indicates cryptic information of
stabbing to Madhular Varsale. Thus, the cryptic information
given by witnesses to Head Constable Wasave (P.W.19)
regarding assault to Madhukar cannot be treated as F.I.R. which
must disclose the occurrence of cognizable offence. Despite
searching cross-examination of prosecution witnesses by defence
counsel it has not been brought on record that, prior to lodging
F.I.R. (Exh.67), some other third person had given all details of
the occurrence to the Police Station about commission of
cognizable offence. Therefore, it cannot be said that, true F.I.R.
is suppressed by the prosecution, which was lodged prior to
arrival of Rajendra Varsale (P.W.2) to Police Station. In the
circumstances, the F.I.R. (Exh.67), proved by Rajendra Varsale
and A.P.I. Sonar (P.W.14) cannot be treated as bad under
Section 162 of the Criminal Procedure Code. The factual position
in above cited authorities by defence counsel was altogether
different than the factual position of the present case. Therefore,
the ratio of these authorities is not applicable in the case at
hand. We do not find any substance in the preliminary objection
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raised by defence counsel.
36. Learned counsel for the accused assailed the
evidence of prosecution witnesses (P.W.1, P.W.4 & P.W.5) on the
ground that their testimony is not consistent with each other.
Learned Advocate for the accused place reliance on Hajinder
Singh Vs. State of Punjab reported in (AIR 2004 SC 3962).
In that case, Apex Court was considering the reliability of chance
witnesses, whose evidence and version in F.I.R. found to be
contradictory to the evidence of other witnesses. In that case,
the evidence of witness was not relied even on the ground that
he watched the incident from considerable distance with the aid
of moonlight. However, in the case at hand, Shekhar Patil
(P.W.1), Anil (P.W.4) and Shankar Marathe @ Kadam (P.W.5) are
almost consistent regarding stabbing of deceased Madhukar by
accused No.6, 9 to 13. No doubt, minor discrepancies arise in
the testimony of Anil (P.W.4) and Shankar (P.W.5). However,
these discrepancies do not shake the basic versions of these
witnesses that in their presence accused No.6, 9 to 13 stabbed
Madhukar Varsale by gupti, sword, dagger and knife. It cannot
be ignored that, capacity of every person to memorize the
occurrence and to reproduce it in the open Court differs from
person to person. So, in natural course, even in the testimony of
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truthful witnesses, there may be minor variance regarding the
sequence of occurrence, exact weapon used by accused persons
and actual part played by each accused person.
37. When the oral testimony of these three eye witnesses
is fully corroborated by medical evidence of Dr. Rajeshwar
Thakre (P.W.12), who has proved total 11 incised wounds on the
body of deceased, merely on the ground of minor discrepancies
emerging in the testimony of these truthful witnesses, their
evidence cannot be disbelieved. Reference can be made to the
case Shivappa Vs. State of Karnataka reported in (2008
Cri.L.J. 2992), wherein Apex Court ruled that, minor
discrepancies or some improvements would not justify rejection
of the testimony if otherwise found reliable. Some discrepancies
are bound to occur because of sociological background of
witnesses as also time gap between date of occurrence and date
on which they gave deposition in the Court. In State of U.P. Vs.
Krishna Master reported in AIR 2010 SC 3071, Apex Court
ruled that, minor discrepancies occurred in oral evidence which
are not touching the core of case, cannot be a ground for
rejection of evidence entirely. Normally, where exist
discrepancies which are due to errors of observations, mental
disposition, shock and horror at the time of incident, unless they
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go to root of matter, such discrepancies do not make evidence
unreliable.
38. Therefore, only because Shankar Patil (P.W.5) is
silent regarding part played by accused No.11 and 13, his
testimony cannot be disbelieved, when otherwise he is absolutely
reliable witness. Similarly, because Anil Waghare (P.W.4) does
not speak about act played by accused No.13 at the time of
occurrence, his entire testimony cannot be doubted.
39. On the other hand, Shekhar Patil (P.W.1) is
absolutely consistent regarding part played by accused No.6, 9 to
13 at the time of actual assault to deceased Madhukar. It must
be noted that, Shekhar Patil (P.W.1) also sustained grazing injury
on the right side of his chest when accused No.9 inflicted sword
blow on his body. This version of Shekhar (P.W.1) is also
supported by Anil Waghare (P.W.4) as well as Dr. Rajeshwar
Thakre (P.W.12). Dr. Thakre (P.W.12) deposes before the Court
that on 25/2/1994 at about 12.15 a.m., he examined Shekhar
(P.W.1) and found fresh incised wound over right lateral chest
between 11th and 12th rib. The said injury was horizontal of size
4 x ½ cm. and skin deep. He also opined that, the injury was
possible by sharp object. The injury certificate of Shekhar Patil
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(P.W.1) was proved at Exh.82. Dr. Rajeshwar (P.W.12) has
specifically stated in his evidence that, injury to Shekhar Patil
cannot be self inflicted injury on the said location of body.
Despite searching cross-examination by defence counsel, Dr.
Rajeshwar (P.W.12) stood constant regarding his opinion that the
injury sustained by Shekhar Patil (P.W.1) cannot be self inflicted
injury. Thus, Shekhar Patil (P.W.1) is important eye witness who
also sustained injury at the hands of accused No.9 at the time of
occurrence. Law regarding evidentiary value of injured witness is
absolutely clear. Hon'ble Supreme Court had occasion to
consider this aspect in Abdul Sayeed Vs. State of M.P.,
reported in [ (2010) 10 SCC 259 ], in which it is held that :
"Where a witness to the occurrence has himself
been injured in the incident, the testimony of
such a witness is generally considered to be
very reliable, as he is a witness that comes with
a built-in guarantee of his presence at the scene
of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone. 'Convincing evidence is required to
discredit an injured witness'.. . . . . . "
40. Even seizure memo (Exh.93) of the shirt and banian
of Shekhar Patil (P.W.1) shows that, the shirt and banian of this
witness were found cut on the respective portion where this
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witness sustained horizontal incised wounds. In the
circumstances, presence of Shekhar Patil (P.W.1) on the spot at
the time of occurrence cannot be at all doubted.
41. The evidence of Shekhar Patil (P.W.1) and other eye
witnesses is also assailed by defence counsel on the ground of
delay in recording statements of the witnesses by investigating
officer. No doubt, from the cross-examination of Shekhar Patil
(P.W.1), it emerges that, on the date of incident, he was present
at police station throughout the night. However, from testimony
of investigating officer Kharote (P.W.23), it emerges that, he
recorded statement of Shekhar Patil (P.W.1), Anil Waghare
(P.W.4) and other witnesses on 26/2/1994 and seized clothes of
Shekhar Patil under panchanama (Exh.93). This police witness
cannot be blamed for delay in recording statements of witnesses
because, on account of lethargy on the part of A.P.I. Shri Rathod
(P.W.22), the investigation was handed over to Shri Kharote
(P.W.23) on 25/2/1994 at evening. So also, in the F.I.R.
(Exh.67), which was registered at Police Station on 25/2/1994 at
1.00 a.m., the name of Shekhar Patil and other witnesses are
mentioned as eye witnesses. In F.I.R., it is also specifically
mentioned that Shekhar Patil (P.W.1) had sustained injury at the
time of occurrence. Therefore, there is no possibility of
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preparation of these witnesses, suitable to the prosecution case
or there is no possibility that the injury found on the body of
Shekhar Patil (P.W.1) can be self inflicted injury. Even from the
cross-examination of A.P.I. Rathod (P.W.21), it emerges that,
only on account of his negligence, he did not record the
statement of eye witnesses at the earliest and he did not seize
the blood stained clothes of Shekhar Patil (P.W.1) though he
noticed the same. However, legal position is absolutely clear
that negligence on the part of lethargic investigating officer like
Shri Rathod (P.W.21) cannot be a ground to give benefit of doubt
to the accused persons, when otherwise testimony of eye
witnesses is reliable and truthful. In Bodhraj Vs. State reported
in [ (2002) 8 SCC 45 ], Banti Vs. State reported in [ (2004)
1 SCC 414], Apex Court ruled that, it cannot be laid down as a
rule of universal application that if there is any delay in
examination of witnesses, the prosecution version becomes
suspect. In Ram Bihari Yadav Vs. State of Bihar reported in
(AIR 1988 SC 1850), Apex Court ruled that, when the direct
testimony of the eye witnesses inspires confidence and fully
establishes the prosecution version, the failure or omission or
negligence of police officer cannot affect credibility of the case of
prosecution.
Criminal Appeal No.192/1999 with
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42. Learned defence counsel has drawn our attention to
Baby alias Sebastian & anr. Vs. Circle Inspector of Police,
Adimaly reported in (AIR 2016 SC 3671); Audumbar Vs.
State reported in 1999 CRI.L.J. 1936; State Vs. Ashok
reported in [ 2005 BCI 27 (Bombay) ] and submitted that,
conduct of the eye witnesses is abnormal as they did not inform
any third person regarding occurrence of the incident till their
statement was recorded by police on 26/2/1994.
43. However, Shekhar Patil (P.W.1) has brought on
record in his cross-examination that, when family members of
the deceased enquired with him about the incident, that time, he
informed them everything which was within his knowledge. Even
from the testimony of P.W.5, it emerges that, immediately after
the occurrence he went to the residence of deceased and
informed his brother about the incident. So also, in the F.I.R.,
names of every accused persons are specifically mentioned and
details of the occurrence are included. P.W.2 was not eye
witness of the incident. Thus, the only source of information for
P.W.2 was the information furnished by P.W.1, P.W.4 and P.W.5.
In the circumstances, it cannot be said that, after the occurrence,
eye witnesses did not disclose the incident to anybody.
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44. From the cross-examination of investigating officer
Rathod (P.W.21), it also emerges that, though on 25/2/1994 he
saw the eye witnesses and blood stained clothes on the person of
P.W.1, neither he recorded his statement nor seized those blood
stained clothes. This conduct of investigating officer (P.W.21)
indicates that, he deliberately tried to favour and oblige the
ruling party because the assailants belonged to ruling political
party. Benefit of such deliberate conduct of police officers cannot
be extended in favour of the accused. Other evidence placed on
record is reliable and trustworthy. In the circumstances, we do
not find anything abnormal in the conduct of eye witnesses. The
ratio of above cited authorities, relied upon by learned defence
counsel is not applicable in the case at hand due to altogether
above discussed distinguishing circumstances.
45. Therefore, only on account of delay in recording
statements of eye witnesses and delay in seizure of blood stained
clothes of Shekhar Patil (P.W.1), their testimony cannot be
disbelieved. On the other hand, C.A. Report (Exh.119) shows
that, blood group of Shekhar Patil is "O". The C.A. Report
(Exh.105) also shows that, on the clothes of deceased, human
blood of Group "B" was found. It means that, blood group of the
deceased was "B" and the same blood was found on the clothes
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of Shekhar Patil (P.W.1). Detection of blood of the deceased on
the clothes of Shekhar Patil also strengthens his testimony
regarding his presence at the time of occurrence and part played
by him while taking the deceased Madhukar to J.P.N. Hospiutal,
Nandurbar.
46. Non-detection of blood of the group "O" of Shekhar
Patil on his clothes cannot be doubted for the simple reason that
the injury found on body of Shekhar Patil (P.W.1) was skin deep
and, therefore, there cannot be profuse bleeding from such skin
deep injury. In these peculiar circumstances, when sole
testimony of Shekhar Patil is free from all infirmities, the
conviction of the accused No.6, 9 to 13 can be based on his sole
testimony. Otherwise also, despite searching cross-examination
of Anil Waghare (P.W.4) and Shankar Marathe (P.W.5), nothing
could be elicited which is sufficient to shake the basic version of
these witnesses. The presence of all these witnesses at the time
of occurrence is also natural and cannot be doubted. In these
peculiar circumstances, the authorities Ganesh Vs. State
reported in (AIR 1979 SC 135); Alil Vs. State reported in
1996 CRI.L.J. 3842; Shamalal Vs. State reported in
(2000(5) BOM.C.R. 638); Bhagwan Vs. State reported in
(2001 ALL MR (CRI.) 1569 and State Vs. Ashok reported in
Criminal Appeal No.192/1999 with
connected appeals.
(2006 ALL MR (CRI.) 15, relied upon by defence counsel on
the point of belated recording of statements of witnesses are of
no help to the defence to discard the truthful testimony of these
three eye witnesses.
47. The next objection raised by learned defence counsel
is that, in the inquest panchanama (Exh.61), only six injuries are
noted on the body of deceased Madhukar, which was prepared in
between 12.05 a.m. to 12.35 a.m. on 25/2/1994. However, in
post mortem notes (Exh.81), 11 incised wounds are mentioned.
According to defence counsel, the 5 additional injuries mentioned
in post mortem report are created later on by the investigating
officer in collusion with workers of B.J.P. Party. Our attention
was drawn to the case of Maula Bux Vs. State of Rajasthan
reported in (1983 SCC (1) 379). In that case, the medical
officer found 6 injuries on the dead body of deceased at the time
of autopsy examination, which were possible as a result of fall.
However, inquest panchanama was otherwise. In such event,
Apex Court found that, police officer who prepared inquest
panchanama was not an expert in medical jurisprudence and,
therefore, inquest panchanama cannot be preferred than expert
opinion of medical officer who performed autopsy examination.
Criminal Appeal No.192/1999 with
connected appeals.
48. However, in the case at hand, the inquest
panchanama was prepared after 12.05 a.m. on 25/2/1994. But
from the testimony of Dr. Rajeshwar (P.W.12), it emerges that,
Madhukar Varsale was brought on 24/2/1994 at 11.50 p.m. and
that time, he noted down 11 incised wounds and its locations
with relevant sketches at Exh.80. Same injuries also reflected in
post mortem notes (Exh.81). So also, Dr. Rajeshwar (P.W.12) is
constant regarding his opinion that all the 11 incised wounds and
corresponding internal wounds are ante-mortem injuries. This
material on record absolutely rules out the possibility of
fabrication of additional wound on the body of deceased
Madhukar after preparation of inquest panchanama. In these
peculiar circumstances, the above cited authority relied by
defence counsel is not applicable and the objection raised by
defence counsel can be safely dispelled.
49. Next objection raised by defence counsel is that, the
time of death as per post mortem report does not support the
prosecution story. Learned defence counsel has pointed out that,
at the time of preparation of inquest panchanama (Exh.61), the
dead body was found cool. According to defence counsel, this
indicates that, Madhukar died much prior to the time of
occurrence of the incident and his body was merely thrown on
Criminal Appeal No.192/1999 with
connected appeals.
the spot of incident by unknown assailants.
50. However, this theory of defence counsel is not
acceptable for the simple reason that, Dr. Rajeshwar (P.W.12)
has brought on record in his cross-examination that, body cools
down immediately if there is heavy loss of blood of peripheral
circulatory failure. In the case at hand, total 11 incised wounds
were found on the body of deceased. Some wounds were
penetrating wounds which damaged even the internal organs like
spleen, heart and intestine of the deceased. Even the clothes of
the deceased were soaked with his own blood. This indicates
that, there was profuse bleeding to the deceased, which resulted
into early cooling down of his body. In the circumstances, only
because layman panchas found the dead body of Madhukar cool
at 12.05 a.m. at the time of inquest panchanama, inference
cannot be drawn that the time of death of Madhukar was much
earlier than time of the occurrence at 11.15 a.m.
51. So also, only because partially digested food was
seen in the stomach of deceased, as mentioned in post mortem
notes (Exh.81) and Rajendra Varsale (P.W.2) admitted that,
before going for tea, meal was not taken by the deceased
Madhukar, conclusion cannot be drawn that time of death of
Criminal Appeal No.192/1999 with
connected appeals.
deceased was much earlier than time of occurrence of the
incident. The reason for this conclusion is that, Rajendra (P.W.2)
is not expected to know whether Madhukar had eaten any food
article before returning to his house. Therefore, overmuch
importance cannot be given to the semi-digested food in the
stomach of deceased Madhukar. Learned defence counsel placed
reliance on Surendar Singh Vs. State of Punjab reported in
[ 1989 SCC (Suppl.) 221 ], wherein medical evidence
regarding time of death and presence of semi-digested food in
the stomach of deceased created considerable doubt about
prosecution case that deceased had been attacked at about 3.00
to 4.00 a.m. However, as observed above, in the case at hand,
the circumstances before this Court are altogether different.
Therefore, the ratio of that authority is not applicable in the case
at hand.
52. So also, when testimony of three eye witnesses is
trustworthy and reliable, only on the basis of cooling of the body
and finding of semi-digested food in the stomach of deceased,
the reliable ocular evidence cannot be discarded. In Darbara
Singh Vs. State of Punjab reported in [ 2012 CRI.L.J. 4757
(SC) ], Apex Court ruled that, unless oral evidence is totally
irreconcilable with medical evidence, the oral evidence would
Criminal Appeal No.192/1999 with
connected appeals.
have primacy.
53. One more objection was also raised by learned
defence counsel that, no evidence is placed by prosecution
regarding source of light on the spot of incident and, therefore,
identification of assailants by eye witnesses at midnight hours is
impossible. However, learned trial Court has dealt with this
objection carefully. Trial Court has pointed out that, the incident
occurred one day prior to full-moon night. The incident occurred
at about 11.30 p.m. Therefore, the moon must be over much
ahead and in such situation, there will be sufficient moonlight to
watch the occurrence by eye witnesses who were very much
close to the assailants. So also, accused persons were not
strangers and witnesses were knowing all the accused persons
since before the occurrence. In the circumstances, mis-identity
of assailants is not possible. By examining Raghunath Patil,
Revenue Circle Officer (P.W.20), prosecution has also proved
sketch map (Exh.134) of the scene of offence. In this sketch
map, street light is shown at a distance of merely 30 ft. from the
spot of occurrence. Two more street lights are also shown
nearby the spot of occurrence. Prosecution has also proved that,
in the night of incident, there was uninterrupted electricity supply
in Nandurbar city. Therefore, non-availability of sufficient source
Criminal Appeal No.192/1999 with
connected appeals.
of light on the spot of incident is totally ruled out by the
prosecution.
54. The next limb of the argument of learned defence
Counsel is that, though the family members of the deceased and
other nearby residents gathered on the spot, their evidence is
withheld by the prosecution, and therefore, adverse inference
needs to be drawn. Learned defence Counsel has placed reliance
on "Hem Raj and others V/s State of Haryana", reported in
[2005 CRI.L.J. 2152 (SC)] wherein adverse inference was
drawn for the reason of omission to examine independent eye
witness.
55. In reply, learned A.P.P. submitted that, none of the
nearby resident or relative of the deceased had seen occurrence
and, therefore, on account of their non-examination, adverse
inference cannot be drawn.
56. From the testimony of Rajendra Varsale (P.W.2), who
is the brother of deceased, it emerges that, when he came to
know about the occurrence from Shankar Marathe (P.W.5), he
immediately rushed to the spot of incident alongwith his family
members and that time assailants were running away towards
Criminal Appeal No.192/1999 with
connected appeals.
Gandhi Statue area. It means that when the family members of
the deceased reached on the spot, by that time accused were
leaving the spot after finishing their task. Thus, obviously none
of these family members of the deceased are eye witnesses who
could have unfolded the prosecution story. So also, from the
cross-examination of the eye witnesses, it emerges that at the
time of occurrence, all nearby residents had gone to sleep.
These nearby residents gathered on the spot only when the
assault was over and deceased was lying on the spot in the pool
of blood. Therefore, by examining these neighbours, no
additional material would have been brought on record which is
essential to establish the guilt of the accused. On the other
hand, the examination of such witnesses would have been only
additional burden on record. In the circumstances, on account of
non-examination of such witnesses, adverse inference cannot be
drawn against the prosecution. The ratio of the above-cited
authority is of no help to the defence.
57. Learned defence Counsel has also pointed out that
though Shekhar Patil (P.W.1) and Shankar Marathe (P.W.5)
visited the Police Station, Nandurbar alongwith injured Madhukar,
they did not take pains to lodge F.I.R. and, therefore, there is
inordinate delay in lodging F.I.R.
Criminal Appeal No.192/1999 with
connected appeals.
58. However, learned A.P.P. has rightly pointed out that,
when Madhukar was taken to Police Station by these witnesses,
that time they were not aware that he was dead. Therefore,
when these witnesses were under impression that Madhukar was
in an unconscious condition, the need of that moment was to
take Madhukar to the nearest hospital, so that his life could have
been saved. Therefore, none of the friend of deceased Madhukar
can be blamed for not lodging F.I.R. and shifting Madhukar at
first to the hospital. Another important aspect to be quoted is
that when Medical Officer Dr. Rajeshwar Thakre (P.W.12)
declared that Madhukar was dead, naturally his friends as well as
family members would have gone under shock. In the
circumstances, certainly everybody would take some reasonable
time to come out of the shock of sudden assault resulting the
death of Madhukar. The incident occurred at about 11.30 p.m.
and F.I.R. was lodged within 1 and 1 ½ hour i.e. at 1.00 a.m.
Considering the above discussed circumstances, it cannot be said
that there was any inordinate delay in lodging F.I.R. and on
account of delay there was possibility of concoction of false case
against accused persons. Hence the objection raised by defence
Counsel can be dispelled.
Criminal Appeal No.192/1999 with
connected appeals.
59. The other circumstances which corroborate the oral
testimony of the eye witnesses are the spot panchnama
(Exh.138) which shows that there were two pools of blood on the
spot and blood stained sword as well as sword sticks were lying
on the spot. The C.A. Report indicates that blood of the
deceased was found on the said spot as well as on the articles
found on the spot. A lame attempt has been made by defence
Counsel by making capital of two pools of blood at the distance of
12 ft. from each other. However, the possibility cannot be ruled
out that at the time of actual assault, the deceased Madhukar
would have moved upto the distance of 12 ft. from the first spot
of assault. The eye witnesses may miss such happening due to
sudden shock of assault. Therefore, only because pools of blood
were found at two places, inference cannot be drawn that the
deceased was assaulted at some other place and later on he was
thrown on that spot. On the other hand, in view of the above
discussed clinching evidence of three eye witnesses, the pool of
blood at two different spots cannot be viewed with suspicion.
60. Thus, the evidence placed on record shows that the
actual occurrence of assault has been proved by three truthful
eye witnesses. Even tea stall owner Bhuteshwar Tamboli
(P.W.10) corroborates the version of prosecution witnesses
Criminal Appeal No.192/1999 with
connected appeals.
regarding the visit of deceased and his friends to his tea stall.
This witness also noticed that, after the visit of deceased and his
friend to his tea stall, accused persons also came to his tea stall
and went away by the road to the direction in which deceased
and his friends had gone. Even prompt lodging of F.I.R.,
mentioning presence of Shekhar Patil (P.W.1) on the spot fully
corroborates the version of eye witnesses. No doubt, in cross-
examination Rajendra Varsale (P.W.2) has given many irrelevant
admissions. However, much importance cannot be given to these
admissions as Rajendra Varsale (P.W.2) was not eye witness of
the occurrence and he lodged F.I.R. only on the basis of hearsay
information received from the other witnesses. The contention of
learned defence Counsel is not acceptable that tea stall owner
Bhuteshwar Tamboli (P.W.10) deposed under the influence of
police as he was encroacher. However, the Police Department
has nothing to do with the illegal tea stall of Bhuteshwar Tamboli
(P.W.10). Only the Municipal Council, Nandurbar can take legal
action against such illegal tea stall. However, despite situation
that accused No.1 was the then President and accused No.13 was
the Councilor of Municipal Council, Nandurbar, this witness stood
constant. This circumstance itself indicates that he is truthful
witness.
Criminal Appeal No.192/1999 with
connected appeals.
61. Regarding the objection raised by learned Advocate
for defence that, inquest panchanama was prepared before the
registration of F.I.R. at Police Station, it is suffice to say that,
under Section 174 of the Code of Criminal Procedure, Inspector
Rathod (P.W.21) can prepare inquest panchanama without
waiting for registration of F.I.R. or offence against the assailants.
Probably, in the inquest panchanama, the crime number was
subsequently added by investigating officer (P.W.21). As
observed above, only on the ground of defect in investigation,
truthful testimony of eye witnesses cannot be discarded.
Therefore, the above said objection raised by defence counsel
holds no water.
62. In the circumstances, we are fully satisfied that the
learned trial Court is fully justified while convicting accused
Nos.6, 9 to 13 for the offences punishable under Section 147,
148, 323 read with Section 149, 302 read with Section 149 of
I.P.C. as well as under Section 25 of the Arms Act and under
Section 135 of Bombay Police Act. It follows that Criminal Appeal
No. 192 of 1999 filed by these convicted accused being devoid of
merit, deserves to be dismissed.
63. Criminal Appeal No.193/1999 is preferred by State
Criminal Appeal No.192/1999 with
connected appeals.
against the acquittal of accused No.1 to 5, 7 and 8. Trial Court
acquitted these accused persons on the ground that accused
No.4 and 5 did not play any role in the incident of riot and the
evidence regarding part played by accused No.2, 3, 7 and 8 is
confusing on account of the role they played in the incident.
64. We have already assigned reasons justifying the
acquittal of accused No.1. So far as evidence available against
accused No.2 to 5, 7 and 8, at the outset, we must observe that,
in the testimony of all 3 eye witnesses, they have not whispered
single word regarding any overt act on the part of accused No.4
and 5 at the time of occurrence. So also, if the evidence
available against accused No.2, 3, 7 and 8 is scrutinised
carefully, it emerges that, Shekhar Patil (P.W.1) initially deposes
that, accused No.2 and 7 pushed other persons away. However,
subsequently he has changed his version and deposed that,
accused No.2, 3 and 7 had caught hold of Madhukar Varsale and
accused No.4, 5 and 8 had surrounded them. Later on, again
this witness deposes that, accused No.5 and 7 pushed the others
back. To the contrary, according to Anil Waghare (P.W.4), at the
time of incident, accused No.2, 7 and 8 surrounded them, but
except this, he does not speak regarding other overt act on the
part of accused No.2, 7 and 8. Climax is that, Shankar (P.W.5)
Criminal Appeal No.192/1999 with
connected appeals.
has not whispered a single word against accused No.2 to 5, 7 and
8 regarding their part played at the time of assault to deceased
Madhukar. Though these three eye witnesses have named all
accused No.2 to 13, they are silent as to which weapons were in
the hands of accused No.2 to 5, 7 and 8. Therefore, as observed
by trial Court, the evidence placed on record against these
acquitted accused is confusing regarding their presence and role
played in the incident. Considering such type of evidence
available against accused No.2 to 5, 7 and 8, learned trial Court
found it proper to extend the benefit of doubt in their favour.
The view taken by learned trial Court cannot be termed as
perverse i.e. the view against record. In Vijaybhai Bhanabhai
patel Vs. Navnitbhai Nathubhai Patel & ors. reported in
(AIR 2004 SC 4607), Apex Court expressed that, unless there
is perverse or erroneous appreciation of evidence, the Court
should be slow in reversing the finding of acquittal in an appeal
against acquittal. Therefore, as observed above, the view taken
by learned trial Court while acquitting the accused No.1 to 5, 7
and 8, was plausible view and, therefore, we do not find any
reason to interfere the judgment and order of acquittal of
accused No.1 to 5, 7 and 8.
65. Accordingly, we have come to the conclusion that, all
Criminal Appeal No.192/1999 with
connected appeals.
the appeals filed by convicted accused as well as appeal
preferred by the State against the acquittal deserve to be
dismissed. Hence, the following order :
ORDER
(i) Criminal Appeals No.191/1999, 192/1999, 193/1999,
469/1999, 186/2000 and 261/2000 stand dismissed. The
judgment and order passed by Sessions Court, Dhule in Sessions
Case No.112/1994 is confirmed.
(ii) Under Section 437-A of the Code of Criminal Procedure
Code, accused No.1 to 5, 7 and 8 shall execute before the trial
Court bail bonds with sureties for the amount of Rs.15,000/-
(Rupees fifteen thousand) each to appear before the Supreme
Court as and when notices are issued to them in respect of any
proceedings filed against this judgment and the said bail bonds
shall remain in force for a period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
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