Bombay High Court
Pramod @ Papa Pandurang Garad And ... vs The State Of Maharashtra on 30 April, 2021
Bench: S.S. Jadhav, N. J. Jamadar
CRIAPPEAL-192-2015-J-.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 192 OF 2015
1. Pramod @ Papa Pandurang Garad
Age : Adult, Occu. : --
2. Sambhaji Laxman Garad
Age : 26, Occu. : -
Both R/o Narkhed, Tal. Mohol, ...Appellants
Dist. Solapur. (Solapur District Jail) (Accused nos.1&3)
Versus
State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 230 OF 2015
Bhausaheb Pandurang Garad ...Appellant
Age : 33 years. Occu. : Agriculturist (Accused no.2)
R/o Narkhed, Tal. Mohol,
Dist. Solapur.
(At present District Prison, Solapur.)
Versus
State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 232 OF 2015
1. Baliram Krishnath Gotane
Age : 40 yrs., Occu. : Agriculturist
2. Ramesh Sukhdeo Garad
Age : 48 yrs., Occu. : Agriculturist
3. Sunil Vishnu Khandare
Age : 23 yrs., Occu. : Agriculturist
All R/o Narkhed, Tal. Mohol, ...Appellants
Dist. Solapur. (Accused nos.4,6
(At present District Prison, Solapur) &7)
Versus
State of Maharashtra ...Respondent
WITH
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CRIAPPEAL-192-2015-J-.DOC
CRIMINAL APPEAL NO. 231 OF 2015
Ashok Krishnath Gotane
Age : 48 years. Occu. : Teacher
R/o Mohol, Dist. Solapur. ...Appellant
(At present District Prison, Solapur.) (Accused no.5)
Versus
State of Maharashtra ...Respondent
WITH
CRIMINAL APPEAL NO. 229 OF 2015
Hanmant Bhagwat Garad
Age : 20 years. Occu. : Agriculturist
R/o Narkehd, Tal. Mohol,
Dist. Solapur. ...Appellant
(At present District Prison, Solapur.) (Accused no.8)
Versus
State of Maharashtra ...Respondent
Mr. Harshad Nimbalkar, a/w Shivam Nimbalkar, Sudeep
Deshmukh, i/b Satyam Nimbalkar, for the Appellant in
Criminal Appeal Nos./231/2015, 229/2015 and 232/2015.
Mr. Sudhir C. Halli, for the Appellant in Criminal Appeal
Nos./192/2015 and 230/2015.
Mr. Satyavrat Joshi, a/w Sunil Kamble, i/b Jaydeep Mane, for
Appellant nos.2 and 3 in Criminal Appeal No./232/2015.
Ms. P. P. Shinde, APP for the State/Respondent.
Mr. Surel Shah, for the Complainant in all appeals.
CORAM: SMT. SADHANA S. JADHAV
& N. J. JAMADAR, JJ.
RESERVED ON : 08.01.2021
PRONOUNCED ON: 30.04.2021
JUDGMENT : (Per: N. J. Jamadar, J.)
1. These appeals are directed against a judgment and order
dated 20th January, 2015, passed by the learned Sessions
Judge, Solapur, in Sessions Case No.107 of 2013, whereby and
whereunder the appellants - accused came to be convicted for
CRIAPPEAL-192-2015-J-.DOC
the offences punishable under Sections 143, 147, 148 and 302
read with Section 149 of the Indian Penal Code, 1860 ('the Penal
Code'), for having committed murder of Dhanyakumar @
Samadhan Sudam Ubale ('the deceased') in prosecution of the
common object of unlawful assembly, and sentenced to suffer
rigorous imprisonment for three months and pay fne of
Rs.500/- each, for the offence punishable under Section 143;
rigorous imprisonment for one year and fne of Rs.2,000/- each,
for the offence punishable under Section 147; rigorous
imprisonment for two years and fne of Rs.5,000/- each, for the
offence punishable under Section 148 and imprisonment for life
and fne of Rs.10,000/- each, for the offence punishable under
Section 302 read with Section 149 of the Penal Code, with
default stipulation.
2. The accused - appellants have preferred separate appeals.
All these appeals can be disposed of by a common judgment.
The appellants are hereinafter referred to as the accused.
3. The gravamen of indictment against the accused runs as
under:
(a) Subhash Ubale ('the frst informant') is the brother of
the deceased Dhanyakumar. The latter was running a hotel
near S.T. Stand, Narkhed. The accused are also the residents of
CRIAPPEAL-192-2015-J-.DOC
Narkhed. In the year 2010, accused no.1 Pramod @ Papa Garad
and his associates had assaulted Hanmant Khandare and
Vitthal Khandare near the S.T. Stand, Narkhed. The deceased
Dhanyakumar was a witness to the said occurrence; in respect
of which a prosecution was pending. The accused were insisting
that the deceased should not depose against them in the said
prosecution. The deceased was not yielding to the pressure
exerted by the accused. Thus, the accused had a grudge
against the deceased and had kept a vigil on the movements of
the deceased since a couple of days prior to the occurrence.
(b) On 11th July, 2012, the deceased had been to the
house of Chiu Jagtap, to attend the last rites ( shradh), on a
motorcycle bearing No. MH-12/AT-9313. At about 12 noon to
12.15 pm. the frst informant Subhash, his nephew Prabodhan
Sathe and Shankar Gavali were proceeding towards Shivaji
chowk. The deceased came in front of Shradharani Collection
Saree Centre. The accused suddenly came from the lane leading
to Khandoba temple. Accused no.1 Pramod (A1) was armed with
a sword. Accused no.2 Bhausaheb (A2) was armed with a
sattur. Accused no.3 Sambhaji (A3) also had a sattur. Accused
no.4 Baliram (A4) was armed with a sword. Accused no.5
Ashok (A5), accused no.6 Ramesh (A6), accused no.7 Sunil (A7)
CRIAPPEAL-192-2015-J-.DOC
and accused no.8 Hanmant (A8) accompanied the above named
accused. The accused pulled the deceased from the motorcycle
and unleashed the blows by means of sword and sattur on the
neck, face and shoulders of the deceased. The deceased fell on
the spot in a pool of blood. When the frst informant and his
companions rushed towards the deceased, the accused fed
away through the lane leading to Khandoba temple. The
deceased sustained fatal injuries and died on the spot. The
informant thus approached Mohol police station and lodged
report.
(c) On the basis of the report, crime was registered at
Crime No.153 of 2012, for the offences punishable under
Sections 302, 143, 147, 148 and 149 of the Penal Code and
Section 135 of the Maharashtra Police Act, at about 1.15 pm.
Investigation commenced thereon. The Investigating Offcer
reached the scene of occurrence. Inquest was held. The
Investigating Offcer drew the scene of occurrence panchnama.
Incriminating articles including plain earth and blood mixed
earth were collected from the scene of occurrence. The body
was sent for postmortem examination. The autopsy surgeon
opined that the death was caused due to shock due to poly-
trauma.
CRIAPPEAL-192-2015-J-.DOC
(d) The Investigating Offcer interrogated witnesses and
recorded their statements. The accused came to be arrested.
Sambhaji (A3) made discovery leading to the recovery of blood
stained clothes wore by him and Hanmant Garad (A8), at the
time of occurrence. Sambhaji (A3) also made a disclosure
statement leading to the recovery of the blood stained sickle
(koyta) (Article-8). Pursuant to the discovery made by Hanmant
(A8) a sattur (Article-9) came to be recovered. Seized articles
were sent for analysis to the Forensic Science Laboratory.
C.A. Reports were obtained. After fnding the complicity of the
accused charge-sheet was lodged, in the Court of jurisdictional
Magistrate, against the accused for the offences punishable
under Sections 302, 143, 147, 148 and 149 of the Penal Code
and Section 135 of the Maharashtra Police Act.
(e) Upon committal, the learned Sessions Judge framed
charge against the accused for the offences punishable under
Sections 143, 147, 148 and 302 read with 149 of the Penal Code.
The accused abjured their guilt and claimed for trial.
(f) At the trial, in order to bring home the charge to the
accused, the prosecution examined 10 witnesses including
Subhash Ubale (PW-3); the frst informant and Prabodhan Sathe
(PW-6); as eye witnesses to the occurrence, Santosh Mote (PW-
CRIAPPEAL-192-2015-J-.DOC
2); a public witness to the scene of occurrence panchnama,
Nagesh Babar (PW-7); a public witness to the alleged discoveries
made by Sambhaji (A3) and Hanmant (A8), Dr. Prafulla
Gaikwad (PW-1); the autopsy surgeon, Mr. Nilkanth Khandare
(PW-5), who professed to depose about the alleged meeting a
week prior to the occurrence in respect of the pending
prosecution against Pramod (A1) and his associates in which the
deceased was cited as an eye witness, Sanjay Dhumale (PW-8);
the Police Offcer, who had recorded the First Informant Report
('FIR') and carried out the initial investigation, and Jitendra
Shahane (PW-10); who completed the rest of the investigation
and lodged the charge-sheet.
(g) After the closure of the prosecution evidence,
the accused were examined under Section 313 of the Code of
Criminal Procedure, 1979 ('the Code'). The defence of the
accused was of denial and false implication. Ashok (A5) raised
the defence of alibi. In order to substantiate the defence that at
the time of occurrence Ashok (A5) was imparting instructions in
the New English School, Narkhed, Mr. Suryabhan Borade
(DW-1) the then incumbent Head Master of New English School,
Narkhed, and Mr. Babulal Nabilal Mali (DW-2), who was working
CRIAPPEAL-192-2015-J-.DOC
as the Head Master at the said school at the time of occurrence,
were examined.
(h) After appraisal of the evidence led by the prosecution
and Ashok (A5), the learned Sessions Judge was persuaded to
enter a fnding of guilt against all the accused. The learned
Sessions Judge was of the view that the prosecution succeeded
in establishing that the accused committed murder of the
deceased in prosecution of the common object of the unlawful
assembly of which they were the members. In the process, the
learned Sessions Judge discarded the defence of alibi taken by
Ashok (A5). Thus, the accused came to be convicted and
sentenced as indicated above.
4. Being aggrieved by and dissatisfed with the impugned
judgment of conviction and order of sentence the accused have
fled distinct appeals.
5. We have heard Mr. Sudhir Halli, the learned Counsel for
accused nos.1 to 3, Mr. Harshad Nimbalkar, the learned
Counsel for accused nos.4, 5 and 8 and Mr. Satyavrat Joshi, the
learned Counsel for accused nos.6 and 7, in the respective
appeals. We have also heard Mrs. P. P. Shinde, the learned APP
for the State and Mr. Surel Shah, the learned Counsel for the
frst informant, in all the appeals. With the assistance of the
CRIAPPEAL-192-2015-J-.DOC
learned Counsels, we have carefully perused the material on
record including the depositions of the witnesses.
6. Though the learned Counsels for the accused, in the
respective appeals, have advanced separate submissions, yet,
the legality, propriety and correctness of the impugned
judgment and order is assailed by the learned Counsels on few
common grounds. We deem it appropriate to frst enumerate
the broad challenges to the impugned judgment and order and
deal with the special submissions of the learned Counsels for
the accused thereafter. From the submissions advanced across
the bar by the learned Counsels for the appellants, the following
challenges can be culled out:
(i) The prosecution has suppressed the original frst
information report. To suit the prosecution case, the FIR has
been ante-timed and ante-dated.
(ii) The time of occurrence is in the realm of uncertainty
as the medical evidence runs counter to the claim of the
prosecution witnesses as regards the time of occurrence.
(iii) The presence of the star witnesses at the time and
place of the occurrence is highly doubtful. The star witnesses
Subhsh Ubale (PW-3) and Probodhan Sathe (PW-6) are highly
interested in the prosecution and the learned Sessions Judge
CRIAPPEAL-192-2015-J-.DOC
committed a manifest error in placing reliance on their
testimony.
(iv) The conduct of the star witnesses is so unnatural
that their presence at the scene of occurrence becomes suspect.
(v) The testimony of the star witnesses bristles with
material omissions, improvements and contradictions and
renders them unworthy of credence.
(vi) Conversely, the alleged incident occurred at a busy
place and yet the prosecution has not examined any
independent witness and, therefore, the prosecution case could
not have been readily believed by the learned Sessions Judge.
(vii) The circumstantial evidence is of no avail to the
prosecution as, on the one hand, the public witness to the
alleged discovery leading to the recovery of the weapons is a
stock panch and, on the other hand, no value can be attached
to the alleged seizure as there is no evidence of proper sealing
and safe keeping of seized articles till they were sent for
analysis.
7. In addition to these broad submissions, it was urged by
Mr. Halli, the learned Counsel for accused nos.1 to 3, that there
was no motive for the accused to eliminate the deceased.
CRIAPPEAL-192-2015-J-.DOC
8. Mr. Nimbalkar, the learned Counsel for accused nos.4, 5
and 8 would urge that the fact that only two weapons (Articles 8
and 9) were recovered and there is a serious discrepancy as
regards the weapon with which the accused were armed would
render it unsafe to place implicit reliance on the testimony of
Subhash (PW-3) and Prabodhan (PW-6). The discoveries are of
no evidentiary value as the alleged weapons were recovered from
the places which were open and accessible to all. Hanmant (A8)
thus cannot be attributed with exclusive knowledge of the
concealment of the weapon sattur (Article-9), which was
allegedly discovered pursuant to the discovery made by him. Mr.
Nimbalkar would further urge that the learned Sessions Judge
committed a grave error in not giving due weight to the evidence
of Mr. Suryabhan Borade (DW-1) and Mr. Babulal Mali (DW-2),
which establishes beyond the pale of controversy that at the
time of the alleged occurrence Ashok (A5) was imparting
instructions in the school.
9. Mr. Joshi, the learned Counsel for accused nos.6 and 7,
strenuously urged that the complicity of accused nos.6 and 7
cannot be said to have been established beyond reasonable
doubt. Neither accused nos.6 and 7 were armed. Nor accused
nos.6 and 7 participated in the assault. In the absence of any
CRIAPPEAL-192-2015-J-.DOC
overt act having been attributed accused nos.6 and 7, according
to Mr. Joshi, accused nos.6 and 7 could not have been roped in
by invoking the principle of constructive criminality.
10. Mr. Joshi advanced a severe criticism against the manner
in which the accused were examined under Section 313 of the
Code. Taking the Court through the statement of accused
under Section 313 of the Code, which indicates that a common
questionnaire was put to all the accused, it was urged that the
examination of the accused under Section 313 was in a most
perfunctory and callous manner. A serious prejudice was thus
caused to the accused. The accused were deprived of the
opportunity to offer meaningful explanation to the incriminating
circumstances which were arrayed against the accused. On this
count alone, according Mr. Joshi, all the accused deserve to be
acquitted.
11. In contrast to this, Mrs. P. P. Shinde, the learned APP
submitted with tenacity that the guilt of the accused is squarely
established by the testimony of Subhash (PW-3) and Prabodhan
(PW-6). Their ocular account is amply corroborated by medical
evidence. The challenge to the prosecution on the count of
ante-dating and ante-timing of the FIR is wholly misconceived.
In contrast, the FIR came to be recorded within an hour and
CRIAPPEAL-192-2015-J-.DOC
half of the occurrence, with the substantial prosecution case
being reported therein. There was hardly any scope for
embellishment, urged the learned APP. It was further submitted
that the testimony of Subhash (PW-3) and Prabodhan (PW-6),
which is found trustworthy, cannot be discarded on the ground
that they happen to be the relations of the deceased. In the
totality of the circumstances, according to the learned APP, the
learned Sessions Judge was justifed in returning the fnding of
guilt. Thus, no interference is warranted with the impugned
judgment of conviction and order of sentence, submitted Mrs.
Shinde.
12. A brief resume of the ocular and medical evidence would
assists us in appreciating the aforesaid submissions in proper
perspective. The ocular account primarily consists of the
testimony of Subhash (PW-3); the frst informant, and
Prabodhan (PW-6).
13. Subhash (PW-3) unfolded the prosecution case. After
apprising the Court that like him and deceased, the accused are
the residents of Narkhed and related inter se, Subhash (PW-3)
endeavoured to impress upon the Court that in the year 2010 a
quarrel had taken place between Hanmant Khandare and
Vitthal Khandare, on the one side, and Pramod @ Papa (A1) and
CRIAPPEAL-192-2015-J-.DOC
his associates, on the other side, in front of the hotel of the
deceased; the later had intervened therein. A report about the
said incident was lodged by Hanmant Khandare and Vitthal
Khandare. The deceased Dhanykumar was cited as an eye
witness in the said prosecution, which was then pending before
the Court at Mohol. The accused were insisting that the
deceased should not depose in the said prosecution. They were
extending threats to the deceased. Five to six days prior to the
occurrence a meeting had taken place at the house of Hanmant
Khandare. Accused Pramod (A1), Hanmant Khandare and
Neelkant Khandare and others had attended the said meeting.
The deceased had declined to compromise the matter. Thus,
Sambhaji (A3) and Hanmant (A8) had kept a watch on the
deceased.
14. On the core of the occurrence, Subhash (PW-3) wants the
Court to believe that on 19th July, 2010, at noon time the
deceased had been to the house of Chiu Jagtap for attending
last rituals (shradha) of latter's father. While, Subhash (PW-3),
Prabodhan (PW-6) and Shankar Gavali were proceeding together
towards the house of Chiu Jagtap, the deceased was returning
from Shivaji Chowk. When the deceased reached in front of
Shraddharani Saree Centre accused nos.1 to 8 came thereat
CRIAPPEAL-192-2015-J-.DOC
from the Khandoba temple lane. The accused forced
Dhanyakumar to stop the vehicle. They encircled the deceased.
After exhorting that the deceased should not give evidence
against them in the Court, the accused unleashed fatal blows of
deadly weapons, with which they were armed, on his head, neck
and shoulder. Subhash (PW-3) affrmed that Pramod (A1) was
armed with a sword, Bhausaheb (A2) was armed with a sattur,
Baliram (A4) was armed with a sword, Sambhaji (A3) was
armed with a sickle (koyata) and Hanmant (A8) was armed with
a sattur. These accused inficted blows on the person of the
deceased by their respective weapons in quick succession.
15. Subhash (PW-3) further affrmed that at the time of the
said occurrence they were near the house of Tatya Patil, at a
distance of 60 feet from the place of assault. When he ran
towards the scene of occurrence, the accused fed away towards
river Bhogawati from the lane leading to Khandoba temple. He
found the deceased in a pool of blood and dead on the spot.
Thus, he claimed to have lodge the report (Exhibit-93).
16. Prabodhan (PW-6), the nephew of the deceased and the
frst informant, lends support to the claim of Subhash (PW-3).
Prabodhan (PW-6) was in unison with Subhash (PW-3) as
regards the prelude to the occurrence on account of which the
CRIAPPEAL-192-2015-J-.DOC
accused allegedly had a grudge against the deceased as the
latter did not budge to the demand of the accused not to depose
in the prosecution initiated in respect of the incident of the year
2010. Prabodhan (PW-6) affrmed that on the day of occurrence
he was on his way to the house of Chiu Jagtap to attend the last
rites (shradha) of latter's mother. Subhash (PW-3) and Shankar
Gavali accompanied him. When they came in front of the house
of Tatya Patil, he noticed that the deceased was coming on a
motorcycle. When the deceased reached in front of Shaddharani
Saree Centre, the accused rushed thereat from Khandoba
temple lane and accosted the deceased. According to
Prabodhan (PW-6), Pramod (A1) was armed with a sword,
Bhausaheb (A2) had a sattur, Sambhaji (A3) was also armed
with a sattur, Baliram (A4) had a sword and Hanmant (A8) had
sugarcane cutting instrument (koyata) and they unleashed the
blows by means of the respective weapons on the neck, head
and shoulder of the deceased. He, Subhash (PW-3) and
Shankar Gavali rushed towards the scene of occurrence.
Accused fed away through the Khandoba temple lane,
alongwith their weapons. He claimed to have given a chase for a
distance and thereafter returned to the spot. He found the
deceased dead on the spot.
CRIAPPEAL-192-2015-J-.DOC
17. At this juncture, recourse to the medical evidence may be
apposite. Dr. Pralhad Gaikwad (PW-1), the autopsy surgeon,
informed the Court that on 19th July, 2012, the body of the
deceased was brought at Rural Hospital, Mohol, at about 5.30
pm. He conducted postmortem in between 5.45 pm. to 6.45 pm.
Dr. Gaikwad (PW-1) claimed to have found the following external
injuries.
(i) Incised wound on neck back side of size 38 cm. X 6 cm. up to
cervical vertebral column with fracture of vertebral column at
level C3 - C4 with complete transection of spinal cord at C3 -
C4 level. Injury was transversely placed.
(ii) Incised wound at base on neck back side of size 6 cm. X 2 cm.
X muscle deep transversely placed.
(iii) Incised wound on inter scapula region of size 12 cm. X 2 cm. X
muscle deep, two in number each transversely placed.
(iv) Incised wound on right shoulder back side of size 4 cm. X 2
cm. X muscle deep.
(v) Incised wound on right mandible of size x X 2 X muscle deep.
(vi) Abrasion on left elbow of size 7 cm. X 3 cm.
18. Dr. Gaikwad (PW-1) claimed to have noticed fracture at
cervical at C3 - C4 level. There was complete transection of
spinal cord at C3 - C4 level. In the opinion of Dr. Gaikwad, all
the injuries were ante-mortem and caused within 12 hours of
the examination. The injuries were possible by sharp weapons
such as sword, sickle and sattur. They were suffcient in the
CRIAPPEAL-192-2015-J-.DOC
ordinary course of nature to cause death. The deceased had
died due to shock due to poly-trauma. Dr. Gaikwad (PW-1)
categorically asserted that because of injury no.1 (described
above), death must have been immediate and instant. He
further opined that the injuries were possible by the sattur and
sickle (Articles 8 and 9).
19. If the ocular account is considered, in conjunction with
the aforesaid medical evidence, the fact that the deceased met
homicidal death can hardly be contested. The fatal nature of the
injuries, especially, injury no.1, which indicates that there was a
complete transection of spinal cord at C3 - C4 level, establishes
the homicidal nature of the death beyond the pale of
controversy. This propels us to the question of authorship of
the homicidal death.
20. The edifce of the submission on behalf of the accused that
the prosecution suppressed the genesis of the occurrence, in as
much as initial FIR was suppressed and, to suit the
prosecution, a different version implicating the accused was
brought on record, was based on certain statements in the
inquest panchnama (Exhibit-82), the requisition sent to the
medical offcer for postmortem examination (Exhibit-89) and the
report (Exhibit-116) submitted alongwith requisition. The
CRIAPPEAL-192-2015-J-.DOC
learned Counsels for the accused laid a very strong emphasis on
the statement in the inquest (Exhibit-82) attributed to Subhash
(PW-3), that the deceased was belaboured by Hanmant
Khandare, Vitthal Khandare, Pramod Garad (A1) and others.
The same assertion fnds mention in the requisition (Exhibit-89)
and the report (Exhibit-116) submitted to the medical offcer for
the postmortem examination by Mr. Sanjay Dhumale (PW-8), the
then Police Sub-Inspector, Mohol Police Station.
21. A two-pronged submission was canvassed on behalf of the
accused. One, initially the frst informant had named Hanmant
Khandare and Vitthal Khandare as the assailants. Conversely,
the names of the accused were not mentioned as the assailants.
Two, the fact that the investigating agency proceeded to take
steps during the course of investigation by asserting that the
named assailants were Hanmant Khandare and Vitthal
Khandare, indicates that the subsequent implication of the
accused as the assailants is a creature of an afterthought. This
factor coupled with the interested nature of the testimony of
Subhash (PW-3) and Prabodhan (PW-6) throws a serious cloud
of doubt over the very initiation of the prosecution.
22. Mr. Dhumale (PW-8) endeavoured to explain away the
aforesaid discrepancy. Mr. Dhumale (PW-8) affrmed that while
CRIAPPEAL-192-2015-J-.DOC
scribing the inquest (Exhibit-82) a mistake crept in. He intended
to incorporate that the persons who were accused in the case of
Hanmant Khandare and Vitthal Khandare had assaulted the
deceased but instead it came to be recorded that the deceased
was assaulted by Hanmant Khandare, Vitthal Khandare,
Pramod Garad (A1) and others. Similar mistake crept in in the
requisition (Exhibit-89).
23. This explanation of Mr. Dhumale (PW-8) was assailed on
behalf of the accused of being unworthy of acceptance. To this
end, it was elicited in the cross-examination of Mr. Dhumale
(PW-8) that while drawing inquest panchnama the information
was furnished by Subhash (PW-3). He had read over the
contents of the inquest panchnama to the persons who were
present thereat. He had verifed the documents before fling
charge-sheet. Yet, he had not fled an application before the
Court to rectify the alleged mistake in the contents of the
inquest panchnama nor he gave any report to his superior
offcers regarding the alleged mistake.
24. It was strenuously urged on behalf of the accused that the
fact that the inquest panchnama (Exhibit-82) and the
documents under which the dead body was sent for postmortem
examination, on the one hand, contain the names of two other
CRIAPPEAL-192-2015-J-.DOC
persons as assailants, and, on the other hand, do not contain
the name of the accused as assailants cannot be said to be
immaterial or inconsequential. This inconsistency erodes the
very substratum of the prosecution case.
25. To lend support to the aforesaid submission, Mr.
Nimbalkar placed reliance on a judgment of the Supreme Court
in the case of State of Gujarat vs. Patel Mohan Mulji and
another1, wherein the Supreme Court had taken note of the fact
that in the inquest report names of none of the assailants found
place. Reliance was also placed on a judgment of the Division
Bench of this Court in the case of Deoraj Deju Suvarna and etc.
vs. State of Maharashtra2, wherein this Court had found the
evidence of star witnesses therein unreliable as in the
emergency police report the appellants therein were not named
as the assailants and the weapons of offence, the sword and
soda water bottles, were not mentioned. And the names of two
of the assailants were introduced by way of interpolation.
26. Mr. Satyavrat Joshi, the learned Counsel for accused nos.
6 and 7 placed reliance on a judgment of the Supreme Court in
the case of Ramesh Baburao Devaskar and others vs. State of
11994 Cri. L.J. 280.
21994 Cri. L.J. 3602.
CRIAPPEAL-192-2015-J-.DOC
Maharashtra3, wherein also, the Supreme Court had factored in
non-mentioning of the names of the assailants in the inquest
panchnama, wherein a statement was attributed to the panchas
that unknown assailants had killed the deceased.
27. We have carefully perused the aforesaid pronouncements.
We are of the view that the aforesaid pronouncements do not
advance the cause of the accused to the extent desired by the
learned Counsels for the accused. The legal position as regards
the utility of the inquest panchnama is absolutely clear and well
settled. The object of inquest proceedings is to ascertain
whether a person has met an unnatural death and, if so, what
is the apparent cause of death. Its utility is restricted to
contradict the witnesses to the inquest, if they are examined
during the trial. The question as to how the deceased was
assaulted or who was the assailant and under what
circumstance the deceased was assaulted are beyond the remit
of inquest proceedings under Section 174 of the Code. The
failure to mention names of the assailants, or for that matter,
mentioning the names of persons other than accused as
assailants, cannot be exalted to such a pedastal as to throw the
prosecution case overboard.
3(2007) AIR (SC)1606.
CRIAPPEAL-192-2015-J-.DOC
28. A proftable reference, in this context, can be made to a
judgment of the Supreme Court in the case of George and
others vs. State of Kerala & another 4, wherein the following
observations were made:
"31. The whole purpose of preparing an inquest report
under Section 174 (1) CrPC is to investigate into and draw
up a report of the apparent cause of death, describing such
wounds as may be found on the body of the deceased and
stating in what manner, or by what weapon or instrument, if
any, such wounds appear to have been inficted. In other
words, for the purpose of holding the inquest it is neither
necessary nor obligatory on the part of the Investigating
Offcer to investigate into or ascertain who were the persons
responsible into or ascertain who were the persons
responsible for the death. In dealing with Section 174 CrPC
in Podda Narayana vs. State of A.P. [(1975) 4 S.C.C.153] , this
Court held that the object of the proceedings thereunder is
merely to ascertain whether a person died under suspicious
circumstances or met with an unnatural death and, if so,
what was its apparent cause. According to this Court the
question regarding the details how the deceased was
assaulted or who assaulted him or under what
circumstances he was assaulted is foreign to the ambit and
scope of such proceedings. With the above observation this
Court held that the High Court was right (in that case) that
the omissions in the inquest report were not suffcient to
put the prosecution out of Court. In Eqbal Baiq vs. State of
A.P. [(1986) 2 S.C.C.476] this Court observed, while dealing
with a similar question, that the inquest report was not the
statement of any person wherein all the names of the
persons accused were to be mentioned. On this ground also
the fnding of the trial Court based on the inquest report
cannot be sustained.
29. The aforesaid pronouncement was followed by the
Supreme Court in the case of Satbir Singh and others vs. State
of Uttar Pradesh.5 The observations in paragraphs 36 and 37
are material. They read as under:
4(1998) 4 Supreme Court Cases 605.
5(2009) 13 Supreme Court Cases 790.
CRIAPPEAL-192-2015-J-.DOC
"36. Mr. Sushil Kumar would urge that in the inquest
report the name of the accused persons had not been
mentioned. In our opinion that in law it was not necessary
to do so. The inquest report is prepared for the purposes
mentioned in 174 of the Code of Criminal Procedure and
not for corroborating the prosecution case.
37. In Pedda Narayana v. State of A.P., [(1975) 4 SCC 153]
this Court has held :
"11. A perusal of this provision would clearly
show that the object of the proceedings under
Section 174 is merely to ascertain whether a
person has died under suspicious
circumstances or an unnatural death and if so
what is the apparent cause of the death. The
question regarding the details as to how the
deceased was assaulted or who assaulted him
or under what circumstances he was assaulted
appears to us to be foreign to the ambit and
scope of the proceedings under Section 174."
30. In view of the aforesaid legal position, the accused cannot
draw much mileage from the fact that in the inquest report
(Exhibit-82), the requisition (Exhibit-89) and report (Exhibit-
116) sent for postmortem examination, a statement was
attributed to Subhash (PW-3) that Hanmant Khandare and
Vitthal Khandare were the assailants. Even otherwise, on facts,
there are two circumstances which render the explanation
furnished by Mr. Dhumale (PW-8) nearer to the truth. One, in
the inquest (Exhibit-82) apart from the names of Hanmant
Khandare and Vitthal Khandare, the other assailants were
identifed as Pramod Garad (A1) and others. Thus, it cannot be
urged that Pramod Garad (A1) and his associates were not at all
in the frame. Two, the scene of occurrence panchnama
CRIAPPEAL-192-2015-J-.DOC
(Exhibit-91) which came to be proved in the evidence of Santosh
Mote (PW-2), the assailants were identifed as Pramod Garad
(A1) and others. The scene of occurrence panchnama (Exhibit-
91) commenced at 2.30 pm.; immediately after the conclusion of
the inquest (Exhibit-82). The scene of occurrence panchnama
(Exhibit-91) thus constitutes a formidable dyke against the
manipulation of the record to suit the prosecution case. It is
not the case that an interval of time passed so as to facilitate
deliberation and confabulation between the drawing of the
inquest and the scene of occurrence panchnama.
31. This takes us to the pivotal challenge of the FIR itself being
manipulated. The claim of Subhash (PW-3) that he had
approached the police and lodged the report (Exhibit-93) fnds
support in the testimony of Dhumale (PW-8). The latter
affrmed that on 19th July, 2012, Subhash (PW-3) had arrived at
Mohol Police Station and lodged the report (Exhibit-93).
32. An endeavour was made on behalf of the accused to draw
home the point that FIR (Exhibit-93) was ante-timed. Two
grounds were pressed into service. One, considering the time of
occurrence, the FIR could not have been recorded at 1.15 pm.,
as deposed to by Mr. Dhumale (PW-8), having regard to distance
between the scene of occurrence and Mohol Police Station. Two,
CRIAPPEAL-192-2015-J-.DOC
the copy of the FIR reached the jurisdictional Magistrate on 20 th
July, 2012. This delay in forwarding the copy of the FIR to the
concerned Magistrate, which is situated at a close distance of
Mohol Police Station, indicates that the FIR was ante-timed.
33. In the cross-examination of Subhash (PW-3) it was elicited
that he did not call the police from the scene of occurrence. Nor
he requested anybody else to make a telephone call to police. He
conceded that he was present on the spot when the police
offcers arrived thereat. Initially inquest was held by the police.
The police did not make any inquiry when they drew
panchnama. It was further brought out, in the cross-
examinatin of Subhash (PW-3), that the distance between Mohol
and Narkhed is 12 kms. Jitendra Shahane (PW-10), the
investigating offcer conceded in the cross-examination that the
distance between Narkhed and Mohol via Ashti is 28 kms. He
did not cave in to the suggestion that it takes one hour to reach
Narkhed from Mohol via Asthi. He affrmed that one can reach
Narkhed from Mohol within half an hour.
34. On the strength of the aforesaid admissions, an earnest
effort was made on behalf of the accused to drag home the point
that the frst informant was at the scene of occurrence itself
from the time of the alleged occurrence till the arrival of the
CRIAPPEAL-192-2015-J-.DOC
police. The frst informant thus could not have approached
Mohol Police and lodged FIR (Exhibit-93) which is shown to have
been recorded at 1.15 pm.
35. The aforesaid endeavour on behalf of the accused is
factually not well grounded. In the cross-examination itself,
when Subhash (PW-3) was confronted with the question as to
whether he had made a telephone call to the police, while
admitting that he did not make the call to police, Subhash (PW-
3) categorically affrmed that he had gone to the police station.
The said claim of Subhash (PW-3) went completely
unchallenged. Likewise, the claim of Mr. Dhumale (PW-8) that
on the day of occurrence Subhash (PW-3) had arrived at the
police station also went completely untraversed. In the context
of the distance between Narkhed and Mohol, even if we reckon it
on the higher side, it was not impracticable for Subhash (PW-3)
to reach Mohol Police Station and lodge the report. We are thus
not persuaded to accede to the submission on behalf of the
accused that the FIR was ante-timed.
36. To buttress the defence that there was a deliberate delay in
forwarding the copy of the report to the Magistrate, which dents
the veracity of the prosecution case, Mr. Dhumale (PW-8) was
confronted with a copy of the report (Exhibit-115) which was
CRIAPPEAL-192-2015-J-.DOC
received in the Court of Judicial Magistrate, First Class, Mohol,
on 20th July, 2012. It was urged that in the circumstances of
the case, the delay is inordinate and unexplained. In the
absence of a reasonable explanation for the delay, no inference
other than that of the investigating agency having marked the
time to manipulate the prosecution case can be drawn, urged
the learned Counsel for the accused.
37. Mr. Nimbalkar, the learned Counsel for accused nos.4, 5
and 8 placed a strong reliance on the judgment of Division
Bench of this Court in the case of Tulshiram Bhanudas
Kambale and orthers vs. State of Maharashtra 6, wherein after
adverting to the previous pronouncements, this Court had held
that, "in our view what can be said is that before in a given case
an inference is drawn that the F.I.R. was ante-timed some
circumstances have to be shown either from cross-examination
of the relevant witnesses or from material appearing on record
which would probabilise the ante-timing of the F.I.R. But we
hasten to add that, Section 157, Cr.P.C. casts an obligatory duty
on the police to forthwith send a copy of the F.I.R. to the
Magistrate and whenever the Police fail to discharge this
mandatory duty it is under a legal obligation to furnish reasons
for not discharging it."
62000 Cri. L.J. 1566.
CRIAPPEAL-192-2015-J-.DOC
38. The legal position as regards the consequences which
entail the delay in forwarding the copy of the report to the
Magistrate is also well recognized. Mere delay by itself is of little
consequence. It has to be shown that the delay in forwarding
report to the Magistrate under Section 157 has resulted in a
serious prejudice to the accused. Mere delay without any
concomitant circumstances, especially where there is evidence
to indicate that FIR has been promptly lodged and investigation
commenced immediately, is of no signifcance.
39. A useful reference, in this context, can be made to a
judgment of the Supreme Court in the case of Jafel Biswas and
others vs. State of West Bengal 7, wherein after a survey of the
previous pronouncements, the Supreme Court culled out the
legal position in the following words:
"19. The obligation is on the I.O. to communicate the
report to the Magistrate. The obligation cast on the I.O. is
an obligation of a public duty. But it has been held by this
Court that in the event the report is submitted with delay
or due to any lapse, the trial shall not be affected. The delay
in submitting the report is always taken as a ground to
challenge the veracity of the F.I.R and the day and time of
the lodging of the F.I.R.
20. In cases where the date and time of the lodging of the
F.I.R. is questioned, the report becomes more relevant. But
mere delay in sending the report itself cannot lead to a
conclusion that the trial is vitiated or the accused is
entitled to be acquitted on this ground.
21. This Court in the case of Anjan Dasgupta Vs. State of
West Bengal and Ors. (2007) 11 SCC 222 (of which one of
us was a member, Hon. Ashok Bhushan, J.) had considered
7(2019) 12 Supreme Court Cases 560.
CRIAPPEAL-192-2015-J-.DOC
Section 157 CrPC. In the above case also, the FIR was
dispatched with delay. Referring to an earlier judgment of
this Court, it was held that in every case from the mere
delay in sending the FIR to the Magistrate, the Court would
not conclude that the FIR has been registered much later in
time than shown."
[emphasis supplied]
40. In the case of Ombir Singh vs. State of Uttar Pradesh and
another8, a three Judge Bench of the Supreme Court approved
the aforesaid pronouncement and observed that delay in
compliance in Section 157 cannot, in itself, be a good ground to
acquit the accused. Albeit, this fact has to be considered while
examining the credibility of the version of the eye witnesses.
41. On the aforesaid touchstone, reverting to the facts of the
case, there is evidence to indicate that the FIR was lodged and
recorded instantaneously, and the investigation commenced in
right earnest, the inquest panchanama (Exhibit-82) was drawn
in between 13.40 pm. to 14.20 pm, the scene of occurrence
panchnama was drawn in between 14.30 pm. to 15.15 pm. and
the postmortem examination on the body of the deceased was
held between 5.45 pm. to 6.45 pm. In this view of the matter,
the fact that the copy of the FIR reached the learned Magistrate
on the next day, even if taken at par, does not detract materially
from the prosecution. It is more so for the reason that no
circumstance could be brought on record to demonstrate that
8(2020) 6 Supreme Court Cases 378.
CRIAPPEAL-192-2015-J-.DOC
the delay in forwarding the copy of the report to the Court of the
learned Magistrate caused prejudice to the accused.
42. A strenuous effort was made to show that the ocular
account as regards the time of occurrence is discredited by the
medical evidence. Emphasis was laid on an admission elicited
in the cross-examination of Dr. Gaikwad (PW-1), the autopsy
surgeon, to the effect that considering the nature of rigor-mortis
present on the body of the deceased, the death must have been
caused before 12 hours of the postmortem. Since the
postmortem was conducted in between 5.45 pm. to 6.45 pm.,
the prosecution case that the occurrence took place at 12 noon
is belied by the aforesaid admission of the autopsy surgeon,
urged the learned Counsel for the accused. The learned
Sessions Judge was of the view that the aforesaid admission is
an outcome of skillful cross-examination. Since Dr. Gaikwad
(PW-1) had initially affrmed that the rigor-mortis had partially
developed, the said admission was of no conclusive signifcance.
43. In our view, the aforesaid approach of the learned Sessions
Judge is impeccable. The aforesaid admission cannot be read
torn out of context. Dr. Gaikwad (PW-1) has initially affrmed
that the rigor-mortis was partially present all over the body. In
the postmortem report (Exhibit-88) also it was specifcally
CRIAPPEAL-192-2015-J-.DOC
recorded that rigor mortis was partially present all over the
body. In the context of the time-lag and the explanation by the
autopsy surgeon to the effect that rigor-mortis normally starts
within two to three hours of the death and it spreads over the
entire body after 10 to 12 hours of the death, the aforesaid
admission cannot be pressed into service to bolster up the
defence that the deceased had died prior to 12 hours of the
postmortem examination. The categorical assertion that rigor-
mortis was partially present diminishes the value of the
aforesaid admission, if it can be termed so.
44. It is imperative to note that there is direct ocular account
as regards the time of the occurrence. Moreover, there are
contemporaneous documents in the form of the FIR (Exhibit-
93), inquest (Exhibit-82) and scene of occurrence panchnama
(Exhibit-89) which freeze the time and place of the occurrence.
Furthermore, as the occurrence had taken place on a street,
and indubitably, the deceased was found in a pool of blood on
the street, the opinion of the medical offcer, that too in the form
an admission elicited in an unguarded moment, cannot
command primacy.
45. It was next urged that Dr. Gaikwad (PW-1) conceded that
semi-digested food was noticed in the stomach of the deceased.
CRIAPPEAL-192-2015-J-.DOC
The discrepancy was played down by the learned Sessions
Judge by observing that in the villages the villagers are usually
in the habit of having the breakfast in early morning hours. In
the absence of any evidence to show that the deceased had
breakfast in the morning, the discrepancy cannot be said to
have been properly accounted for, urged Mr. Nimbalkar.
46. To buttress this submission, Mr. Nimbalkar, the learned
Counsel for the accused nos.4, 5 and 8 placed a strong reliance
on a judgment of the Supreme Court in the case of Moti and
others vs. State of U.P.9, wherein in the context of the
controversy as regards the exact time at which the incident in
the said case had occurred and which had a bearing on the
opportunity for the witnesses to observe the incident, the
Supreme Court observed that, "It may be possible to contend
that contents of the stomach may not always be an indicator of
the time of death. But in a case where stomach is empty and the
prosecution evidence is that the murder had taken place shortly
after the deceased had his last meal, to say that the contents of
the stomach have no material bearing on the determination of
time, in our opinion, is not acceptable. In the instant case, time
of death being a material factor to verify the presence of the
eyewitnesses, it was obligatory for the prosecution to have
92003 Supreme Court Cases (Cri) 1821.
CRIAPPEAL-192-2015-J-.DOC
clarifed the discrepancy between the medical evidence and the
oral evidence. The prosecution having failed to do so, in our
opinion, there is a serious doubt as to the time of incident and
presence of the eyewitnesses at the time of incident and their
narration of the incident also becomes doubtful."
47. There can be no duality of opinion about the aforesaid
proposition which underscores the relevance of the contents of
the stomach in assessing the probable time of death. However,
in the facts of the case, nothing turns on the presence of semi
digestive food in the stomach of the deceased. The occurrence
took place at noon time. The fact that the deceased have had
opportunities to have food in the morning can hardly be
disputed. From this stand point, in our view, the learned
Sessions Judge committed no error in not attaching much
weight to this aspect of the matter.
48. This leads us to the crucial aspect of the challenges to the
veracity and reliability of the testimony of Subhash (PW-3) and
Prabodhan (PW-6). Indisputably, Subhash (PW-3) and
Prabodhan (PW-6) are the relatives of the deceased. The
incident had occurred on a street. The twin factors which
constitute the foundation of the challenge to their testimony are
of interestedness and being chance witnesses.
CRIAPPEAL-192-2015-J-.DOC
49. The legal position as regards the evaluation of evidence of
a close relative is absolutely clear. Often, a relative is a natural
witness. Ordinarily, a close relative who is a natural witness
cannot be termed as an interested witness, for the term,
"interested" implies that the witnesses have some interest in
having the accused somehow or the other convicted to settle
some animus or for some other reason. It is well recognized that
it cannot be laid down as an immutable rule of law that
evidence of a relative can not form the basis of conviction unless
corroborated to a material extent and in material particulars by
independent evidence. What is imperative is that the evidence
of the such witness should be subjected to careful scrutiny and
accepted with caution. If on a careful scrutiny the testimony of
a relative is found to be trustworthy and inherently probable,
then that by itself would be suffcient to base a conviction.
50. The broad submission on behalf of the accused that the
testimony of Subhash (PW-3) and Prabodhan (PW-6) does not
merit acceptance as they are the chance witnesses cannot be
acceded to unreservedly. As the incident occurred on a public
street, consistent with the submissions on behalf of the learned
Counsel for the accused, any person who happened to witness
CRIAPPEAL-192-2015-J-.DOC
the occurrence can be branded as a chance witness. Such
approach has not been appreciated by the Supreme Court.
51. A proftable reference in this context can be made to a
judgment of the Supreme Court in the case of Rana Pratap vs.
State of Haryana10, wherein following pertinent observations
were made:
"3. .... We do not understand the expression "chance
witnesses". Murders are not committed with previous notice
to witnesses, soliciting their presence. If murder is
committed in a dwelling house, the inmates of the house
are natural witnesses. If murder is committed in a brothel,
prostitutes and paramours are natural witnesses. If murder
is committed in a street, only passers-by will be witnesses.
Their evidence cannot be brushed aside or viewed with
suspicion on the ground that that they are mere "chance
witnesses". The expression "chance witnesses" is borrowed
from countries where every man's home is considered his
castle and every one must have an explanation for his
presence elsewhere or in another man's castle. It is a most
unsuitable expression in a country whose people are less
formal and more casual. To discard the evidence of street
hawkers and street vendors on the ground that they are
"chance witnesses" even where murder is committed in a
street is to abandon good sense and take too shallow a view
of the evidence."
52. A useful reference can also be made to a judgment of the
Supreme Court in the case of Jarnail Singh and others vs. State
of Punjab11, again a case of murder on a street based on the
evidence of a passersby, wherein the Supreme Court had further
elucidated the legal position in the following words:
"21. In Sachchey Lal Tiwari v. State of U.P. (2004) 11 SCC
410, this Court while considering the evidentiary value of
10(1983) 3 SCC 327.
11(2009) 9 SCC 719.
CRIAPPEAL-192-2015-J-.DOC
the chance witness in a case of murder which had taken
place in a street and passerby had deposed that he had
witnessed the incident, observed as under:
"If the offence is committed in a street only
passer- by will be the witness. His evidence cannot
be brushed aside lightly or viewed with suspicion on
the ground that he was a mere chance witness.
However, there must be an explanation for his
presence there."
The Court further explained that the expression "chance
witness" is borrowed from countries where every man's
home is considered his castle and every one must have an
explanation for his presence elsewhere or in another man's
castle. It is quite unsuitable an expression in a country like
India where people are less formal and more casual, at any
rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very
cautious and close scrutiny and a chance witness must
adequately explain his presence at the place of occurrence
(Satbir v. Surat Singh (1997) 4 SCC 192; Harjinder Singh v.
State of Gujarat (2004) 11 SCC 253; Acharaparambath
Pradeepan & Anr. v. State of Kerala (2006) 13 SCC 643; and
Sarvesh Narain Shukla v. Daroga Singh and Ors. (2007) 13
SCC 360). Deposition of a chance witness whose presence
at the place of incident remains doubtful should be
discarded (vide Shankarlal v. State of Rajasthan (2004) 10
SCC 632).
23. Conduct of the chance witness, subsequent to the
incident may also be taken into consideration particularly
as to whether he has informed anyone else in the village
about the incident. (vide Thangaiya v. State of Tamil Nadu
(2005) 9 SCC 650). ..."
53. On the aforesaid touchstone, we propose to re-advert to
the evaluation of the testimony of Subhash (PW-3) and
Prabodhan (PW-6). Undoubtedly, their testimony is required to
be appreciated with utmost care and caution and in the
backdrop of the previous statements and probabilities. The
manner in which Subhash (PW-3) and Prabodhan (PW-6) fared
CRIAPPEAL-192-2015-J-.DOC
in the cross-examination would be of assistance in judging their
veracity and reliability.
54. In the cross-examination of Subhash (PW-3) it was elicited
that Shankar Gavali, his another companion, is the father-in-
law of the deceased Dhanyakumar. He went on to concede that
till the day of occurrence the evidence of the deceased was not
recorded in the prosecution of the year 2010. He further
conceded that he or the deceased had not lodged any report
with the police in respect of the incident wherein the deceased
was allegedly threatened by the accused not to give evidence
against them in the said case. In this context, an omission was
also elicited to the effect that he had not stated before the police
that the said quarrel was resolved by the deceased
Dhanyakumar. It was further brought out that the FIR does not
fnd mention of the fact that the deceased was an eye witness to
the said quarrel. An omission to the effect that the FIR does not
fnd mention of the fact that prior to fve to six days of the
occurrence, a meeting had taken place and Pramod (A1) was
present in the said meeting, was also elicited.
55. As regards the core of the occurrence, a contradiction was
brought out to the effect that in the FIR he had stated that
Sambhaji (A3) was armed with a sword and not sickle ( koyata).
CRIAPPEAL-192-2015-J-.DOC
Subhash (PW-3) conceded that he did not state before the police
that Hanumant (A8) was armed with sattur. Refecting upon
the contemporaneous conduct it was elicited in the cross-
examination of Subhash (PW-3) that he did not shout when he
noticed that the deceased was accosted by armed assailants.
He raised hue and cry during the course of the assault on the
deceased. When the assault was being unleashed he ran
towards the scene of occurrence. He did not take his brother in
his lap to fnd out if he was in a position to speak. Nor he made
any attempt to take the deceased to the hospital.
56. Prabodhan (PW-6) conceded that at the time of occurrence
he was employed with State Road Transport Corporation as a
daily wager. Even a daily wager was required to visit depot
everyday. Prabodhan (PW-6) did not cave in to suggestion that
on the day of occurrence he was on duty. In the context of the
visit to the house of Chiu Jagtap to attend the last rites, a
contradiction was brought in the cross-examination of
Prabodhan (PW-6) that he had attended the rites at the house of
Chiu Jagtap. He went on to further admit that there is a direct
road from his house to the house of Chiu Jagtap from the rear
side of the village. On the core of the occurrence, omissions
were elicited to the effect that his statement before police does
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not fnd mention of the fact that the incident had taken place
when they reached in front of the dilapidated house of Tatya
Patil, Hanmant Garad (A8) was armed with sattur and he had
chased the accused to the distance of 150 feet.
57. On the aspect of contemporaneous conduct, it was elicited
that Prabodhan (PW-6) did not talk with his companions after
noticing the armed assailants. He claimed to have shouted.
The strangers did not gather after hearing his shouts. He was
raising cries when the assault was being perpetrated. When the
deceased fell down with his face towards the earth, he did not
turn him up. Till the arrival of the police the deceased was in
the same condition. He did not make any telephone call to the
police.
58. On the strength of the aforesaid manner in which
Subhash (PW-3) and Prabodhan (PW-6) fared in the cross-
examination, a strenuous effort was made to draw home the
point that the very presence of Subhash (PW-3) and Prabodhan
(PW-6) to witness the occurrence is highly improbable. As a
second limb, it was urged that the material omissions and
contradictions rendered their testimony unworthy of reliance. It
was further urged that there is an inherent contradiction in the
claim of Subhash (PW-3) and Prabodhan (PW-6) as regards the
CRIAPPEAL-192-2015-J-.DOC
purpose for which they were allegedly visiting the house of Chiu
Jagtap. For Subhash (PW-3) the last rites were of the father of
Chiu Jagtap. For Probodhan (PW-6), the last rites were of the
mother of Chiu Jagtap. These factors cumulatively erode their
credibility, urged the learned Counsels for the accused.
59. In contrast of this, the learned APP would urge that minor
discrepancies are bound to occur in the testimony of the most
truthful witness. The omissions and contradictions, which have
been elicited in the case at hand, are not material and in any
event do not dent the trustworthiness of the claim of Subhash
(PW-3) and Prabodhan (PW-6).
60. To being with, in our view, the omissions as regards the
then pending prosecution are of no signifcance. The learned
Sessions Judge, after perusal of the certifed copies of the
documents in Regular Criminal Case No.96 of 2012 recorded
that Pramod (A1), Ashok (A5), Sunil (A7) and Hanmant (A8) were
the accused, alongwith others, in the said case. The said case
was posted for recording evidence. Eventually, a compromise
pursis was fled by the frst informant therein on 21 st December,,
2013. The fact that accused nos.1, 5, 7 and 8 were facing
prosecution in RCC No.96 of 2012 cannot be gainsaid. The
prosecution witnesses have categorically asserted that the
CRIAPPEAL-192-2015-J-.DOC
deceased was an eye witness in the said incident and the
accused were insisting upon him not to depose against them.
The fact that no report was lodged against the accused who
allegedly gave the threats or it was not specifcally stated in the
FIR that the accused was an eye witness therein, thus, does not
detract materially from the broad prosecution case.
61. The claim of Subhash (PW-3) and Prabodhan (PW-6) that
at the time of occurrence they were proceeding towards the
house of Chiu Jagtap alongwith Shankar Gavali, to attend the
last rites, cannot be said to have been demolished during the
course of the cross-examination. A minor discrepancy as
regards the person for whom the rituals were then being held,
when a witness is called upon to depose after a lapse of period,
cannot be exalted to such level as to throw the entire testimony
overboard. It is trite that in the matter of appreciating the effect
of omissions and contradiction, the Court has to steer clear of
two extremes. One, giving undue weight to discrepancies which
are minor and occur on account of normal errors of perception
etc. Two, brushing aside material omissions and contradictions
as being of no signifcance.
62. In the case hand, the fact that the FIR came to be lodged
within one and half hour of the occurrence, with the requisite
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details as to how the witnesses happened to be at the place of
occurrence, the apparent cause of the assault, the persons who
participated in the assault and the broad role played by them,
lends assurance to the credibility of the claim of Subhash (PW-
3) and Prabodhan (PW-6). What has to be seen is, whether
there is an explanation for the presence of the witnesses at the
place of occurrence. In the case at hand, the reason ascribed
by Subhash (PW-3) and Prabodhan (PW-6) for their presence at
the scene of occurrence cannot be stated to be inconceivable
and unreliable.
63. From the tenor of the cross-examination,especially as
regards the conduct of Subhash (PW-3) and Prabodhan (PW-6),
at the time of the occurrence, it does not appear that their
conduct can be stated to be so unnatural as to render their very
presence at the scene of occurrence doubtful. The thrust of the
submission on behalf of the accused was that the prosecution
witnesses did not make any effort to either call the police or take
the deceased to hospital, which would have been the most
natural conduct.
64. On an analysis of the evidence, we fnd that on both the
aforesaid counts, the conduct of Subhash (PW-3) and
Prabodhan (PW-6) cannot be said to be unnatural. There is
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evidence of Dr. Gaikwad (PW-1), the autopsy surgeon, that
because of the injury no.1 (extracted above) death must have
been immediate and instant. We have noted that injury no.1
was so fatal that there was a complete transection of spinal cord
at C3 - C4 level. Subhash (PW-3) and Prabodhan (PW-6) have
consistently deposed that the deceased plunged to death on the
spot. In the context of the injuries which were noticed on the
person of the deceased, the fact that Subhash (PW-3) and
Prabodhan (PW-6) did not make effort either take the deceased
on their lap or to hospital, does not militate against their
presence at the scene of occurrence. Indisputably, neither
Subhash (PW-3) nor Prabodhan (PW-6) had made the telephone
call to the police. However, Subhash (PW-3) categorically
asserted that he rushed to Mohol Police Station and lodged the
report. There is evidence which lends unwavered corroboration
to this claim of Subhash (PW-3) of having lodged the report at
Mohol Police Station.
65. In any event, there is no straight-jacket formula in which
the witnesses are supposed to react when faced with such a
gruesome attack. The temperament, the inner strength, the
experience in life and the like factors infuence the manner in
which the witnesses react in a given situation. Evidence of a
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witness cannot be discarded on the ground that the witness did
not react in a particular way. In our view, in the case at hand,
the learned Sessions Judge rightly placed reliance on the
judgment of the Supreme Court in the case of Bharwada
Bhoginbhai Hirjibhai vs. State of Gujarat, 12 to repell the
contention that the conduct of the witnesses is inconsistent
with their claim of having witnessed the occurrence.
66. In this context, the reliance placed on behalf of the
prosecution on the judgment of the Supreme Court in the case
of Leela Ram (Dead) through Duli Chand vs. State of Haryana
and another,13 wherein the following observations were made,
appears to be well founded:
"11. The court shall have to bear in mind that different
witnesses react differently under different situations :
whereas some become speechless, some start wailing some
others run away from the scene and yet there are some who
may come forward with courage, conviction and belief that
the wrong should be remedied. As a matter of fact it depends
upon individuals and individuals. There cannot be any set
pattern or uniform rule of human reaction and to discard a
piece of evidence on the ground of his reaction not falling
within a set pattern is unproductive and a pedantic exercise.
12. It is indeed necessary to note that hardly one comes
across a witness whose evidence does not contain some
exaggeration or embellishments - sometimes there could even
be a deliberate attempt to offer embellishment and sometimes
in their over anxiety they may give slightly exaggerated
account. The Court can sift the chaff from the corn and fnd
out the truth from the testimony of the witnesses. Total
repulsion of the evidence is unnecessary. The evidence is to
be considered from the point of view of trustworthiness - If
this element is satisfed, they ought to inspire confdence in
121983 (3) SCC 217.
131999 (9) SCC 525.
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the mind of the Court to accept the stated evidence though
not however in the absence of the same."
67. Indisputably, there are contradictions as regards the
weapon with which Sambhaji (A3) and Hanmant (A8) were
armed. Sambhaji (A3) was initially stated to have been armed
with a sattur. However, pursuant to the disclosure statement
made by the Sambhaji (A3) a sickle (koyata) came to be
recovered. There was an omission in the FIR as regards the
weapon with which Hanmant (A8) was armed. These
contradictions and omissions are required to be appreciated in
the light of the attendant circumstances. The incident lasted for
not more than two minutes. At least fve armed assailants
assaulted the deceased. The failure to describe the exact nature
of the weapon with which the fve assailants unleashed blows on
the victim, by the witnesses, who are at a distance from the
scene of occurrence, can be attributed to normal errors of
observation and perception. Such discrepancies, where the
evidence is found otherwise reliable, do not corrode the
testimony of the witnesses. The reliance placed on behalf of the
prosecution on a judgment of the Supreme Court in the case of
Satbir vs. Surat Singh and others14 wherein the following
observations were made, appears to be well founded:
141997 (4) SCC 192.
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"12. ... The High Court ought to have appreciated that an
incident where a number of persons assaulted three persons
at one and the same time with different weapons, some
contradictions as to who assaulted who and with what
weapon, were not unlikely and such contradictions could not
be made a ground to reject the evidence of eye-witnesses, if it
was otherwise reliable. ..."
68. The learned Counsels for the accused then urged that
the prosecution is guilty of withholding material witnesses.
Since the incident had occurred on a public street and in
broad day light and the cross-examination of the
prosecution witnesses indicates that there were houses and
shops in the vicinity, non-examination of independent
witnesses is fatal to the prosecution. Even more
inexplicable is the non-examination of Mr. Shankar Gavali,
the father-in-law of the deceased, urged Mr. Halli, the
learned Counsel for accused nos.1 to 3.
69. By a catena of decisions, it is well neigh settled that
non-examination of a material witness cannot be resorted
to as a ritualistic formula for discarding the evidence led by
the prosecution, howsoever natural and trustworthy. The
challenge to the prosecution on the ground of withholding a
material witness is required to be examined through the
prism whether the witness was intentionally withheld
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despite there being no evidence on the point on which such
witness would have shed the light. Conversely, if he Court
fnds the evidence adduced by the prosecution is worthy of
reliance, non-examination of any other witness does not
materially affect the prosecution.
70. In the case at hand, Shankar Gavali sailed in the
same boat. It is the claim of Subhash (PW-3) and
Prabodhan (PW-6) that Shankar Gavali accompanied them
and witnessed the occurrence in question. If examined, the
testimony of Shankar Gavali would also have been
susceptible to the identical charge of being an interested
and chance witness. His testimony would not have added
any additional dimension to the prosecution case.
Therefore, in the circumstances of the case, the non-
examination of Shankar Gavali does not dent the
prosecution.
71. It is true that the occurrence took place on a public
street and in broad day light. It must have been witnessed
by a number persons. However, the prosecution case
cannot be jettisoned away for non-examination of
independent witnesses. The entire setting of the matter is
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required to be appreciated. In a faction ridden village the
situation becomes even more accentuated. People are
reluctant to come forward and depose even when they
witness a gruesome murder. This position was
illuminatingly postulated by the Supreme Court in the case
of Appabhai and another vs. State of Gujarat15
"11. In the light of these principles, we may now
consider the frst contention urged by the learned Counsel
for the appellants. The contention relates to the failure of
the prosecution to examine independent witnesses. The
High Court has examined this contention but did not fnd
any infrmity in the investigation. It is no doubt true that
the prosecution has not been able to produce any
independent witness to the incident that took place at the
bus stand. There must have been several of such
witnesses. But the prosecution case cannot be thrown out
or doubted on that ground alone. Experience reminds us
that civilized people are generally insensitive when a crime
is committed even in their presence. They withdraw both
from the victim and the vigilante. They keep themselves
away from the Court unless it is inevitable. They think that
crime like civil dispute is between two individuals or
parties and they should not involve themselves. This kind
of apathy of the general public is indeed unfortunate, but it
is there everywhere whether in village life, towns or cities.
One cannot ignore this handicap with which the
investigating agency has to discharge its duties. The court,
therefore, instead of doubting the prosecution case for
want of independent witness must consider the broad
spectrum of the prosecution version and then search for
the nugget of truth with due regard to probability if any,
suggested by the accused. The Court, however, must bear
in mind that witnesses to a serious crime may not react in
a normal manner. Nor do they react uniformly. The horror
stricken witnesses at a dastardly crime or an act of
egregious nature may react differently. Their, course of
conduct may not be of ordinary type in the normal
circumstances. The Court, therefore, cannot reject their
evidence merely because they have behaved or reacted in
an unusual manner.
[emphasis supplied]
151988 SCC (Cri) 559.
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72. In the case hand, the genesis of the occurrence was
the alleged insistence of the deceased to depose against the
members of the accused party in a pending prosecution.
The deceased was done to death. The reluctance of the
villagers and persons who happened to be present at the
scene of occurrence to come forward and assist the
prosecution is required to be appreciated in this context as
well. Therefore, in the case at hand, we are not persuaded
to discard the prosecution on the count of non-examination
of independent witnesses.
73. A faint attempt was made by Mr. Halli, the learned
Counsel for the accused nos.1 to 3 to demonstrate that
eventually the accused in the said case, RCC No.96 of 2012,
were acquitted. Thus, the pendency of the said prosecution
could not have furnished a motive for the elimination of the
deceased. It would be suffce to note that the acquittal of
the accused in RCC No.96 of 2012 does not advance the
cause of the accused as it, in a sense, fortifes the
prosecution version that the accused in the said case were
deploying means to get a favourable verdict. Even the
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learned Sessions Judge recorded that eventually the
compromise pursis was fled by the informant in the said
case.
74. The reliance sought to be placed by Mr. Halli on a
judgment of the Supreme Court in the case of Badam
Singh vs. State of M.P.16 to bolster up the submission that
mere formal consistency in the evidence of the witnesses is
not a guarantee of their truthfulness, also does not advance
the cause of the accused as the aforesaid proposition does
not govern the facts of the case at hand.
75. The learned Sessions Judge was of the view that the
circumstantial evidence comprising the recovery of the
sickle (koyata) at the instance of Sambhaji (A3) and
sugarcane cutting instrument (koyata) at the instance of
Hanmant (A8) and the fact that the human blood stains
were found on those weapons as well as the clothes of
Sambhaji (A3) and Hanmant (A8), as evidenced by CA
Report (Exhibit-113), lent requisite support to the ocular
account since there was no explanation as to how human
blood stains were found on those articles.
162004 Cri.L.J. 22.
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76. Mr. Nimbalkar, the learned Counsel for accused nos.4,
5 and 8 strenuously urged that the learned Sessions Judge
committed a grave error in recording the fnding that the
circumstantial evidence lent the necessary corroboration.
The discoveries cannot be said to have been fully
established as the testimony of Nagesh Babar (PW-7), the
public witness, was totally discredited. Nagesh Babar (PW-
7) conceded in the cross-examination that he has acted as
a panch in numerous cases and he did not recollect as to
when the panchanama in respect of a particular accused
was drawn. He has merely signed the panchnama. Since
Nagesh Babar (PW-7) was employed by the investigating
agency in all the panchnamas, no credibility could have
been attached to the evidence of discovery. It was further
urged that even the discoveries cannot be said to have been
proved through the evidence of Mr. Dhumale (PW-8) and
Mr. Shahane (PW-10), the investigating offcers as the
discoveries were made from the places which were open
and accessible to all.
77. Mr. Babar (PW-7) conceded in no uncertain terms that
he has acted as a panch witness in numerous cases. He
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went on to further concede that Mr. Chormule another
panch, invariably acted as the second panch. From the
clear and explicit admission in the cross-examination it
appears that Mr. Babar (PW-7) was the on the beck and call
of police. The challenge to the prosecution on this count,
could not have been lightly brushed aside by the learned
Sessions Judge. The reliance placed by Mr. Nimbalkar on
the judgment of the Supreme Court in the case of State of
Haryana vs. Ramsing,17 wherein the employment of very
same persons for all disclosures, discoveries and even
arrest was adversely commented upon, appears well
founded.
78. The testimony of Mr. Dhumale (PW-8) the police offcer
who effected the discovery on 13 th August, 2012 pursuant to
the disclosure statement made by Sambhaji (A3), which led
to the recovery of the clothes of Sambhaji (A3) and
Hanmant (A8) from the thorny bushes in the forest near
Diksal shivar, could not be impeached during the course of
the cross-examination. Nor the testimony of Mr. Shahane
(PW-10), the Investigating Offcer who effected the recovery
172002(2) SCC 426.
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of the weapons of the offence pursuant to the disclosure
statements made by Sambhaji (A3) and Hanmant (A8) could
be impeached. It was urged that the recovery of the clothes
as well as the weapons was from the places open and
accessible to all and, thus, no exclusive knowledge could be
attributed to Sambhaji (A3) and Hanmant (A8). Such a
broad proposition that discovery from a place open and
accessible to all cannot be fastened against the accused is
not sustainable.
79. A useful reference, in this context, can be made to the
judgment of the Supreme Court in the case of State of
Himachal Pradesh vs. Jeet Singh,18 wherein it was
enunciated that, "there is nothing in Section 27 of the
Evidence Act which renders the statement of the accused
inadmissible if recovery of the articles was made from any
place which is "open or accessible to others". It is a
fallacious notion that when recovery of any incriminating
article was made from a place which is open or accessible
to others, it would vitiate the evidence under Section 27 of
the Evidence Act. Any object can be concealed in places
181999 (4) SCC 370.
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which are open or accessible to others. For Example, if the
article is buried on the main roadside or if it is concealed
beneath dry leaves lying on public places or kept hidden in
a public offce, the article would remain out of the visibility
of others in normal circumstances. Until such article is
disinterred, its hidden state would remain unhampered.
The person who hid it alone knows were it is until he
discloses that fact to any other person. Hence, the crucial
question is not whether the place was accessible to others
or not but whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place is
accessible to others."
80. Lastly it was urged that there is no evidence of proper
sealing and safe keeping of the articles which were allegedly
seized. In the absence of such evidence no value can be
attached to the seizure of the articles. Reliance was placed
on a judgment of the Division Bench of this Court in the
case of Baboo Ramchandra Shinde vs. State of
Maharashtra,19 wherein the following observations were
made:
192005 ALL M.R. (Cri.) 1070.
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"25. In the present case, the entire process of seizure of
weapons, seizure of clothes on the person and fnding of
human blood, fails to support the prosecution cse. These
dislinks are also material, which cannot be overlooked. The
improper sealing of the articles before sending them to the
Chemical Analyzer for report is also a relevant factor against
the prosecution as observed in 1996 Cri.L.J. 314 (Ashraf
Hussain Shah vs. State of Maharashtra). Therefore also, no
support can be taken from the Chemical Analyzer's report as
such lacunas raise doubt in the prosecution case."
81. In the seizure panchnama (Exhibits-104 and 106)
whereunder the weapons of offence were seized and in the
seizure panchnama (Exhibits-110 and 111), whereunder the
clothes of Sambhaji (A3) and Hanmant (A8) were seized, it
is mentioned that the articles were seized by affxing labels
bearing the signatures of the panchas and police. The fact
that those articles were sealed is not specifcally mentioned
in any of the seizure panchnamas. Shrikant Joshi (PW-4),
the carrier informed the Court that he had collected the
muddemal articles in a sealed condition and delivered the
same to the offce of C.A., Pune again in sealed condition on
18th September, 2012. Indeed, the fact that the articles
were immediately sealed after seizure is not borne out by
the seizure panchnama. This constitutes a lapse in the
investigation. However, in the totality of the circumstances,
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in our view, the circumstantial evidence cannot be
completely discarded.
82. This takes us to the defence of alibi taken by Ashok
(A5). Ashok (A5) raised the defence of alibi at the earliest
opportunity and the prosecution witnesses were confronted
with said defence. It is interesting to note that the
prosecution made an attempt to preempt the defence of
alibi by examining Dilip Kadam (PW-9) a former student of
New English School, Narkhed, where Ashok (A5) is
employed as a teacher. Dilip Kadam (PW-9) endeavoured to
impress upon the Court that in the year 2012 he was
studying in 9th standard 'A' Division. He has known Ashok
(A5) as he used to teach Marathi subject in the school. On
the day of occurrence, on 19th July, 2012, Ashok (A5) came
to the school at 11.00 am. Prayers were offered by 11.15
am. Ashok (A5) thereafter left the school as he received the
phone call. He did not return to the school on that day nor
took the Marathi class, which he was supposed to take.
83. In the cross-examination of Dilip Kadam (PW9) it was
elicited that he cannot tell the names of all the teachers
who imparted instruction on 19th August, 2012 and 19th
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September, 2012. An omission was elicited in his cross-
examination to the effect that his statement before police
does not fnd mention of the fact that Ashok (A5) left the
school as he had received telephone call. The omission was
duly proved in the evidence of Mr. Shahane (PW-10), the
investigating offcer. Evidently, the endeavour of the
prosecution to establish that Ashok (A5) had initially
attended the school on the day of occurrence and thereafter
left the school did not succeed. The omission to state that
Ashok (A5) left the school as he had received a telephone
call, in the circumstances of the case, cannot be said to be
inconsequential or immaterial. It was the most notorious
fact so far as the absence of Ashok (A5) from the school on
the day of occurrence and, thus, Dilip Kadam (PW-9) could
not have missed to state the same. Even otherwise, it does
not appeal to human credulity that a student of a
particular class would be in a position to remember as to
which teacher had left the school at a particular point of
time on a given day.
84. Recourse to the testimony of Suryabhan Borade
(DW-1) and Babulal Malli (DW-2) becomes necessary to
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appreciate the defence of alibi. In the evidence of Borade
(DW-1), copy of the muster and extract of bulletin register
(Exhibit-130) were placed on record. Babulal Malli (DW-2),
the then Head-Master of the school, informed the Court
that on 19th July, 2012 Ashok (A5) had signed the muster in
his presence. He taught to the student of class 10-A
division, from 11.10 am. to 11.45 am. and class 10-B
division, from 11.45 am. to 12.15 pm. And, thereafter, for
the third period Ashok (A5) was sent to class 6-A division
since the regular teacher was not available. He affrmed
that Ashok (A5) was present in the school in between 11.00
am. to 2.00 pm. Mr. Malli (DW-2) further affrmed that
Ashok (A5) had signed the bulletin register in token of
having taken the bulletin period for 6 th standard 'A' division.
Nothing material could elicited in the cross-examination of
Mr. Malli (DW-2), on behalf of the prosecution, to discard
the aforesaid version.
85. The learned Sessions Judge was not persuaded to
delve into the aforesaid evidence as the learned Sessions
Judge was of the view that since the scene of occurrence
was at a walking distance of fve minutes from the school
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where Ashok (A5) was working, it was not physically
impossible for Ashok (A5) to be at the scene of occurrence
and since Subhash (PW-3) and Prabodhan (PW-6)
categorically deposed that Ashok (A5) was a member of the
unlawful assembly, there was no reason to disbelive their
version.
86. Whether the aforesaid approach of the learned
Sessions Judge is justifable. In our view, the plea of alibi,
in the facts of the case, required adequate consideration by
the learned Sessions Judge. It is trite that the defence
witnesses are entitled to equal treatment with those of the
prosecution. The defence evidence cannot be discarded by
an instinctive disbelief in the credibility of defence version.
87. The pronouncement of the Supreme Court in the case
of Dudh Nath Pandey Vs. State of Uttar Pradesh, (1981) 2
SCC 166 expounds the nature of the plea of alibi and also
the approach of the Court while appreciating the defence of
alibi. It reads as under :-
"19. xxxxxxxxxxx Defence witnesses are entitled to equal
treatment with those of the prosecution. And, Courts ought to
overcome their traditional, instinctive disbelief in defence
witnesses. Quite often, they tell lies but so do the prosecution
witnesses. xxxxxxxxxxx The plea of alibi postulates the
physical impossibility of the presence of the accused at the
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scene of offence by reason of his presence at another place.
The plea can therefore succeed only if it is shown that the
accused was so far away at the relevant time that he could not
be present at the place where the crime was committed. xxxxx"
88. In the case of Binay Kumar Singh Vs.State of Bihar
(1997) 1 SCC 283, the nature of the defence of alibi and
standard of proof required to discharge the said defence
was enunciated in the following words :-
"The Latin word alibi means "elsewhere" and that word is used
for convenience when an accused takes recourse to a defence
line that when the occurrence took place he was so far away
from the place of occurrence that it is extremely improbable
that he would have participated in the crime. It is a basic law
that in a criminal case, in which the accused is alleged to have
inficted physical injury to another person, the burden is on
the prosecution to prove that the accused was present at the
scene and has participated in the crime. The burden would
not be lessened by the mere fact that the accused has adopted
the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged
by the prosecution satisfactorily. But once the prosecution
succeeds in discharging the burden it is incumbent on the
accused, who adopts the plea of alibi, to prove it with absolute
certainty so as to exclude the possibility of his presence at the
place of occurrence. When the presence of the accused at the
scene of occurrence has been established satisfactorily by the
prosecution through reliable evidence, normally the court
would be slow to believe any counter-evidence to the effect that
he was elsewhere when the occurrence happened. But if the
evidence adduced by the accused is of such a quality and of
such a standard that the court may entertain some reasonable
doubt regarding his presence at the scene when the
occurrence took place, the accused would, no doubt, be
entitled to the beneft of that reasonable doubt. For that
purpose, it would be a sound proposition to be laid down that,
in such circumstances, the burden on the accused is rather
heavy. It follows, therefore, that strict proof is required for
establishing the plea of alibi."
[emphasis supplied]
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89. The approach of the Court in appreciating the plea of
alibi was again delineated by the Supreme Court in the
case of Jumni Vs. State of Haryana,(2014) 11 SCC 355 in
the following words :-
"20. It is no doubt true that when an alibi is set up, the
burden is on the accused to lend credence to the defence put
up by him or her. However the approach of the court should
not be such as to pick holes in the case of the accused person.
The defence evidence has to be tested like any other testimony,
always keeping in mind that a person is presumed innocent
until he or she is found guilty."
[emphasis supplied]
90. In the backdrop of the aforesaid exposition of the legal
positions, undoubtedly a higher degree of proof is
warranted when the accused takes up the defence of alibi.
However, the distance between the place of occurrence and
the place where the accused claimed to be present, at the
time of occurrence, cannot be the sole determinative factor
in all the cases. In a given case, despite the fact that the
distance between the scene of occurrence and the place of
presence, was not such that it would render the presence of
the accused at the scene of occurrence absolutely
impossible, if there is cogent evidence which indicates that
the presence of the accused at the place other than the
scene of occurrence is satisfactorily made out, then the
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defence evidence cannot be simply brushed aside. In the
least, such evidence led by the accused would persuade the
Court to entertain a reasonable doubt regarding presence of
the accused at the scene of occurrence and, in that event,
the accused would be entitled to beneft of such reasonable
doubt.
91. A useful reference can also be made to the
pronouncement of the Supreme Court in the case of
Jayantibhai Bhenkarbhai Vs. State of Gujarat, (2002) 8
SCC 165, wherein the Supreme Court enunciated the
manner in which the prosecution evidence in support of the
charge that the accused was present at the scene of
occurrence and the defence evidence in support of plea of
alibi is to be appreciated. The observations in paragraph
No.19 are instructive and, thus, extracted below :-
"19. The plea of alibi fows from Section 11 and is
demonstrated by illustration (a). Sarkar on Evidence (Fifteenth
Edition, p. 258) states the word 'alibi' is of Latin origin and
means "elsewhere". It is a convenient term used for the defence
taken by an accused that when the occurrence took place he
was so far away from the place of occurrence that it is highly
improbable that he would have participated in the crime. Alibi
is not an exception (a special or general) envisaged in the
Indian Penal Code or any other law. It is only a rule of evidence
recognized in Section 11 of the Evidence Act that facts which
are inconsistent with the fact in issue are relevant. The burden
of proving commission of offence by the accused so as to fasten
the liability of guilty on him remains on the prosecution and
would not be lessened by the mere fact that the accused had
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adopted the defence of alibi. The plead of alibi taken by the
accused needs to be considered only when the burden which
lies on the prosecution has been discharged satisfactorily. If
the prosecution has failed in discharging its burden of proving
the commission of crime by the accused beyond any
reasonable doubt, it may not be necessary to go into the
question whether the accused has succeeded in proving the
defence of alibi. But once the prosecution succeeds in
discharging its burden then it is incumbent on the accused
taking the plea of alibi to prove it with certainty so as to
exclude the possibility of his presence at the place and time of
occurrence. An obligations is cast on the Court to weigh in
scales the evidence adduced by the prosecution in proving of
the guilt of the accused and the evidence adduced by the
accused in proving his defence of alibi. If the evidence adduced
by the accused is of such a quality and of such a standard that
the Court may entertain some reasonable doubt regarding his
presence at the place and time of occurrence, the Court would
evaluate the prosecution evidence to the see if the evidence
adduced on behalf of the prosecution leaves any slot available
to ft therein the defence of alibi. The burden of the accused is
undoubtedly heavy. This fows from Section 103 of the
Evidence Act which provides that the burden of proof as to any
particular fact lies on that person who wishes the Court to
believe in its existence. However, while weighing the
prosecution case and the defence case, pitted against each
other, if the balance tilts in favour of the accused, the
prosecution would fail and the accused would be entitled to
beneft of that reasonable doubt which would emerge in the
mind of the Court."
[emphasis supplied]
92. In the case at hand, it is imperative to note that
Subhash (PW-3) and Prabodhan (PW-6) have asserted that
the accused No.5 Ashok was a member of the unlawful
assembly, which caused death of the deceased. The
prosecution witnesses, however, have not attributed any
specifc role to Ashok (A-5). It is not the case that Ashok
(A-5) was armed with any weapon. From the tenor of
evidence of Subhash (PW-3) and Prabodhan (PW-6), it
CRIAPPEAL-192-2015-J-.DOC
becomes abundantly clear that the role of assault is
attributed to armed assailants only. Six injuries were
noticed on the person of the deceased. Nor any exhortation
is attributed to Ashok (A-5). The evidence against Ashok
(A-5) is thus of being a member of unlawful assembly, at
best.
93. In the backdrop of this nature of the prosecution
evidence, in our view, the learned Sessions Judge ought to
have considered the veracity of the defence evidence. As
indicated above, Mr. Babulal Malli (DW-2) categorically
asserted that Ashok (A-5) was present in the school and
was imparting instructions in various classes in between
11.00 a.m. to 02.00 p.m. Bulletin register was placed on
record to substantiate the claim that Ashok (A-5) had
imparted instructions in the third period, from 12.15 p.m.,
to the students of class 6-A division. The presence of
Ashok (A-5) in the New English School, in the capacity of a
regular teacher therein, was in the regular course of his
employment. The prosecution made a halfhearted attempt
to demonstrate that though Ashok (A-5) attended the
school on that day, yet, he left the school after 11.15 a.m.
CRIAPPEAL-192-2015-J-.DOC
In this setting of the matter, in the absence of any material
to connect Ashok (A-5) with the crime, in our view, a
reasonable doubt is created regarding the presence of
Ashok (A-5) at the scene of occurrence. Thus, Ashok (A-5)
is entitled to beneft of doubt.
94. Mr. Joshi, learned Counsel for the accused Nos.6 and
7 would urge that there is no overt act attributed to
accused Nos.6 and 7. In the light of the evidence led by the
prosecution, the submission on behalf of accused Nos. 6
and 7 cannot be said to be factually unsustainable.
Subhash (PW-3) and Prabodhan (PW-6) do not claim that
accused Nos.6 and 7 were armed with a particular weapon.
Nor any exhortation is attributed to accused Nos.6 and 7.
However, the question is of the application of principle of
constructive criminality.
95. It is trite that it cannot be laid down as a general
proposition of law that unless an overt act is proved against
a person who is alleged to be a member of unlawful
assembly, it cannot be said that he is a member of an
unlawful assembly. Undoubtedly, mere presence in an
unlawful assembly cannot render a person liable unless
CRIAPPEAL-192-2015-J-.DOC
there was a common object and he was actuated by that
common object, which is one of the objects set out in
section 141 of the Code.
96. A useful reference can be made to the judgment of the
Supreme Court in the case of Vinubhai Ranchhodbhai Patel
Vs. Rajivbhai Dudababhai Patel (2018) 7 SCC 743, wherein
the following observations have been made :-
"32. For recording a conclusion, that a person is (I) guilty of
any one of the offences under Sections 143, 146 or 148 or (ii)
vicariously liable under Section 149 for some other offence, it
must frst be proved that such person is a member of an
"unlawful assembly" consisting of not less than fve persons
irrespective of the fact whether the identity of each one of the
5 persons is proved or not. If that fact is proved, the next step
of inquiry is whether the common object of the unlawful
assembly is one of the 5 enumerated objects specifed under
Section 141 IPC".
97. In the case of Joseph Vs. State (2018) 12 SCC 283, the
Supreme Court while adverting to the previous
pronouncements, expounded the essential requirement for
invoking vicarious liability under section 149 and the scope
of two parts of the said section as under :-
11. Before we consider the testimony of the witnesses, let us
consider the requirements for invoking the vicarious liability under
Section 149 IPC. Section 149 IPC consists of two parts:
11.1 The frst part of the section means that there exists common
object and that the offence has been committed in prosecution of the
common object. In order that the offence may fall within the frst
part, the offence must be connected immediately with the common
CRIAPPEAL-192-2015-J-.DOC
object of the unlawful assembly of which the accused was member.
11.2 The second part of the section means that even if the offence
committed is not in direct prosecution of the common object of the
assembly, it may yet fall under Section149, if it can be shown that the
offence was such as the members knew was likely to be committed.
11.3 What is important in each case is to fnd out if the offence was
committed to accomplish the common object of the assembly or was
the one which the members knew to be likely to be committed. Once
the court fnds that the ingredients of Section 149 IPC are fulflled,
every person who at the time of committing that offence was a
member of the assembly has to be held guilty of that offence. After
such a fnding, it would not be open to the court to see as to who
actually did the offensive act nor would it be open to the court to
require the prosecution to prove which of the members did which of
the above two ingredients. Before recording the conviction under
Section 149 IPC, the essential ingredients of Section 141 IPC must be
established.
98. Reverting to the facts of the case, in the light of
aforesaid legal position, like Ashok (A-5), the sole piece of
evidence against accused Nos. 6 and 7 is that they
accompanied the armed assailants i.e. accused Nos. 1 to 4
and 8. Subhash (PW-3) and Prabodhan (PW-6) have not
professed to affrm that accused Nos. 6 and 7 participated
in the assault. They were frm that armed assailants
unleashed deadly blows by their respective weapons. Both
the eye-witnesses were in unison on the point that the
incident did not last more than two minutes. Neither any
exhortation nor instigation is attributed to accused Nos.6
and 7, during the course of the said occurrence. These
factors cumulatively dissuade us from roping in the
CRIAPPEAL-192-2015-J-.DOC
accused Nos.6 and 7 by invoking the principle of
constructive criminality.
99. Reliance placed by Mr. Joshi on a judgment of the
Supreme Court in the case of Akbar Shaikh and Ors. Vs.
State of West Bengal, 2009(7) SCC 415, wherein the
following observations were made, appears well founded.
"43. We are not unmindful that Akbar and Kanku have been
named by both the witnesses but even against them no overt
act has been attributed. We, therefore, are of the opinion that
doubts legitimately arise as regards their presence and/ or
sharing of common object. While saying so, we are not
oblivious of the fact that the incident had taken place at the
dead of night. Enmity between two groups in the village is
admitted. But, we cannot also lose sight of the fact that a
person should not suffer rigorous imprisonment for life
although he might have just been a bystander without
anything more."
100. This leads us to challenge to the impugned judgment
on the count of defective examination of the accused under
section 313 of Cr.P.C. Indeed, the learned Sessions Judge
recorded a single statement of all the accused. Common
questions were put to all the accused. The question which
wrenches to fore is whether any prejudice was caused to
the accused. Mr. Joshi, learned Counsel for the accused
Nos.6 and 7 urged that a serious prejudice was caused to
the accused as the accused were deprived of opportunity to
CRIAPPEAL-192-2015-J-.DOC
explain the incriminating circumstances. The common
questions were put to the accused which did not contain
any incriminating material qua a particular accused. In
such scenario, there is no other go but to acquit all the
accused, urged Mr. Joshi.
101. A strong reliance was placed on a judgment of the
Division Bench of this Court in the case of Swapnali @
Sapna Sharad Mahadik Vs. State of Maharashtra, 2016 ALL
MR (Cri) 1824, wherein after adverting to various
pronouncements on purpose of examination under section
313 of Cr.P.C., the necessity of recording the same in a fair
and faithful manner and the consequences of error or
omission therein, it was observed that :-
"19. The gist of the above authorities is that every error or
omission in compliance with the provisions of Section 313 does
not necessarily vitiate the trial. Such errors fall within the
category of curable irregularities and question, whether trial is
vitiated in each case, depends upon the degree of error and
whether prejudice has been or is likely to have been caused to
the accused. The ultimate test in determining whether or not
the accused has been fairly examined under this Section is to
see whether, having regard to the questions put to him, he did
not get an opportunity to say what he wanted to say in respect
of the prosecution case against him. Where the non
compliance with Section 313 holds the trial to be vitiated,
ordinarily the proper course is to order a retrial from the stage
at which the provisions of this section were not complied with.
20. We have meticulously examined the statement at Exhibits
127 to 133. We could notice that 66 identical questions were
put to each of the accused by the learned Additional Sessions
CRIAPPEAL-192-2015-J-.DOC
Judge though entirely different incriminating circumstances
against each of them were brought on record.
It is pertinent to note that role played by accused Nos.
5,6 and 7 even according to prosecution was limited, as
accused Nos. 5 and 6 were guarding at the gate of the building
and accused No.7 passed on the information to accused No.5,
who, executed the plan. Accused No.7 was not even present on
the spot. Therefore, there was no meaning in putting all 66
questions to each of the accused. As questions were not put
specifcally, distinctly and separately, in our view, it amounts
to serious irregularity vitiating the whole trial, as it is shown
that serious prejudice has been caused to the accused."
102. The importance of faithfully recording statement
under section 313 of Cr.P.C. can hardly be over emphasised.
There can be no two views on the point that the attention of
the accused must be specifcally brought to the
incriminating piece of evidence, qua the particular accused,
so as to give an opportunity to offer explanation, if he
desires to. Each incriminating circumstance must,
therefore, be put to the particular accused specifcally and
distinctly. The manner in which the learned Sessions
Judge, in the instant case, recorded the common statement
of all the accused under section 313 of the Cr.P.C., leaves
much to be desired. However, every error or omission in
compliance with the provisions of section 313 of the Cr.P.C.
does not necessarily vitiate the trial. Nor the omission to
put a material circumstance to the accused ipso facto leads
CRIAPPEAL-192-2015-J-.DOC
to the acquittal of the accused. It has to be shown that the
failure to put an incriminating circumstance, or for that
matter the manner of examination of the accused, under
section 313 of the Cr.P.C., resulted in prejudice and led to
miscarriage of justice.
103. The Supreme Court in the case of Nar Singh Vs. State
of Haryana, (2015) 1 SCC 496 took a survey of the
authorities and enunciated the legal position in the
following words :-
"20. The question whether a trial is vitiated or not depends
upon the degree of the error and the accused must show that
non-compliance of Section 313 Cr.P.C. has materially
prejudiced him or is likely to cause prejudice to him. Merely
because of defective questioning under Section 313 Cr.P.C., it
cannot be inferred that any prejudice had been caused to the
accused, even assuming that some incriminating
circumstances in the prosecution case had been left out.
When prejudice to the accused is alleged, it has to be shown
that accused has suffered some disability or detriment in
relation to the safeguard given to him under Section 313
Cr.P.C. Such prejudice should also demonstrate that it has
occasioned failure of justice to the accused. The burden is
upon the accused to prove that prejudice has been caused to
him or in the facts and circumstances of the case, such
prejudice may be implicit and the Court may draw an
inference of such prejudice. Facts of each case have to be
examined to determine whether actually any prejudice has
been caused to the appellant due to omission of some
incriminating circumstances being put to the accused."
[emphasis supplied]
104. In the light of aforesaid legal position, we have
carefully perused the statement of the accused recorded
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under section 313 of the Cr.P.C. Mr. Joshi urged that
prejudice was caused to the accused as common questions
were put at Sr. Nos.21,23 and 25 in respect of the previous
incident of the year 2010. As regards the core of the
occurrence, according to Mr. Joshi, again prejudice was
caused as common questions were put at Sr.Nos.28,
29,30,31 and 32.
105. On analysis, we fnd that the said criticism is not
justifed. The incident of the year 2010 and the prosecution
arising therefrom were pressed into service by the
prosecution as the cause for the incident in question. No
prejudice seems to have been caused to the accused by
putting common question in respect of the said quarrel and
the alleged threats by the accused to the deceased not to
depose in the prosecution arising out of the said incident.
In-fact, we have noticed that, the learned Sessions Judge
put incriminating circumstance qua particular accused, in
question No.31, regarding the weapons with which the
respective accused was allegedly armed. The statement
further reveals that the learned Sessions Judge had put few
common questions to only those of the accused against
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whom the incriminating material was attributed therein. In
the totality of the circumstances, though we do not approve
of the manner in which the statement of the accused under
section 313 of the Cr.P.C. was recorded by the learned
Sessions Judge, yet, we are of the frm opinion that no
serious prejudice was caused to the accused by recording
their statement under section 313 of the Cr.P.C. in such
fashion. Thus, the challenge to the prosecution on the
count of the defective recording of the statement of the
accused under section 313 of the Cr.P.C., does not merit
countenance.
106. The conspectus of aforesaid consideration and
foregoing reasons is that the impugned judgment of
conviction and sentence qua accused Nos.1 to 4 and 8 does
not warrant any interference. We are of the view that the
prosecution did not succeed in establishing the guilt of
accused Nos.5,6 and 7 beyond reasonable doubt. The
accused Nos.5,6 and 7, therefore, deserve to be acquitted.
Resultantly, Criminal Appeal No.192 of 2015, Criminal
Appeal No.230 of 2015 and Criminal Appeal No.229 of 2015
are required to be dismissed. Criminal Appeal No.232 of
CRIAPPEAL-192-2015-J-.DOC
2015 is liable to be dismissed qua appellant No.1/accused
No.4 - Baliram. Criminal Appeal No.232 of 2015 deserves
to be partly allowed qua appellant Nos.2 and 3/accused
No.6 - Ramesh and accused No.7 - Sunil. Likewise,
Criminal Appeal No.231 of 2015 preferred by accused No.5-
Ashok deserves to be allowed. Hence, the following order :-
O R D E R
Criminal Appeal No.192 of 2015
(preferred by accused No.1-Pramod and accused
No.3-Sambhaji), Criminal Appeal No.230 of 2015
(preferred by accused No.2-Bhausaheb), Criminal
Appeal No.229 of 2015 (preferred by accused
No.8-Hanumant) stand dismissed.
Criminal Appeal No.232 of 2015 stands
dismissed qua appellant No.1/accused No.4-
Baliram.
The judgment of conviction and order
of sentence against appellants/accused Nos.1 to
4 and 8 stands confrmed.
Those of the appellants/accused Nos.1
to 4 and 8, who are on bail, shall surrender
before the learned Sessions Judge, within a
period of eight weeks from today.
Criminal Appeal No.231 of 2015 stands
allowed.
Criminal Appeal No.232 of 2015 stands
partly allowed qua appellant No.2/accused No.6-
Ramesh and appellant No.3/accused No.7-Sunil.
CRIAPPEAL-192-2015-J-.DOC
The impugned judgment of conviction
for the offences punishable under sections 143,
147, 148 and 302 read with section 149 of the
Indian Penal Code and order of sentence qua
accused Nos.5,6 and 7 stands quashed and set
aside.
Accused No.5-Ashok, accused No.6-
Ramesh and accused No.7-Sunil stand acquitted
of the offences punishable under sections 143,
147, 148 and 302 read with section 149 of the
Indian Penal Code.
Their bail bonds stand cancelled and
sureties stand discharged.
Fine, if paid, be refunded to the
accused Nos.5,6 and 7.
All pending applications in all the
criminal appeals do not survive and accordingly
stand disposed of.
[N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.]
