Bombay High Court
Namdeo Sitaram Dake And Ors vs State Of Maharashtra on 8 June, 2021
Bench: S.S. Jadhav, N. R. Borkar
j-cri-appeal-623-1996.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 623 OF 1996
1. Namdeo S. Daki
2. Suresh S. Daki
3. Hanumant V. Keni (Abated)
4. Arvind K. Patil
5. Ashok A. Patil ... Appellants
V/s.
The State of Maharashtra ... Respondent
----------------
Mr. Rajiv Patil, Sr. Counsel i/b Mr. Prashant Badole for the
Appellants.
Ms P.P. Shinde, APP for the Respondent -State.
----------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 10.02.2021.
PRONOUNCED ON : 08.06.2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal challenges the judgment and order dated
10.10.1996 passed by the learned Sessions Judge Raigad at
Alibag in Sessions Case No. 217 of 1988.
2] In the abovesaid sessions case, the appellant Nos.1 to 5,
who were accused Nos.1,5,9, 12 and 14 respectively before
the trial court were tried alongwith other 40 co-accused for
the ofences punishable under sections 147, 148, 302, 307,
452, 323, 504, 427 506 read with 149 of the Indian Penal
Code (for short "IPC") and section 37 read with section 135 of
the Bombay Police Act. By the impugned judgment and order,
the trial court convicted the present appellants for the ofence
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punishable under section 302 read with 149 of IPC and
sentenced them to sufer Life Imprisonment and to pay fne of
Rs.3000/- each, in default, to sufer further R.I. for one year.
The trial court further convicted them for the ofence
punishable under section 324 read with 149 of the IPC and
sentenced them to sufer R.I. for one year and to pay fne of
Rs.1000/- each, in default, to sufer further R.I. for three
months. The trial court further convicted them for the ofence
punishable under section 452 read with 149 of the IPC and
sentenced to sufer R.I. for one year and to pay fne of
Rs.1000/- each, in default, to sufer further R.I. for three
months. The appellants have been further convicted for the
ofence punishable under section 148 of the IPC and
sentenced to sufer R.I. for six months and to pay fne of
Rs.500/- each, in default, to sufer further R.I. for one month.
3] Appellant No.3/accused No.9 died during pendency of
the appeal. Appeal, thus, stands abated qua appellant
No.3/accused No.9.
4] The deceased Kishor Bhopi was son of PW-1
Harishchandra Bhopi. Another deceased Uttam was friend of
deceased Kishor. On the day of incident which took place on
15.8.1988, at about 8.00 to 8.30 p.m., the present appellants
along with other co-accused suddenly entered into the house
of PW-1 Harishchandra while he and his family members were
having dinner and at that time all the accused were armed
with weapons like axes, swords, spears and sticks. After
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entering into the house of PW-1, accused Nos.1 and 5 asked
him as to where are his sons and their friend Uttam as they
have decided to kill them. According to the prosecution, PW-1
and his relative Arun Dundrekar, who has not been examined
in the matter, tried to stop the accused when they tried to
rushed towards the family members of PW-1. It is alleged that
at that time, accused Nos.1 and 5 assaulted PW-1 on his
shoulder and head by axe. At the same time, accused Nos.5
and 9 assaulted Arun by axe. It is alleged that while this
assault was going on deceased Kishor and Uttam due to fear
rushed towards staircase. They climbed the staircase and
went on the mezzanine foor. Accused followed them. At that
time, PW-3 Deepak, the brother of the deceased Kishor, tried
to stop them. The accused however, assaulted him also. It is
alleged that accused Nos.1,5,9,12, 13, 14 and 18 followed the
deceased Kishor and deceased Uttam and went on the
mezzanine foor armed with axes and swords. It is alleged
that the said accused assaulted deceased Kishor and Uttam
and committed their murder. It is alleged that the female
family members of PW-1 were also assaulted by kick and fst
blows.
5] It is further alleged that the accused after leaving the
house of PW-1, assaulted PW-4 Keshav Gavand who was going
back to his house on bicycle. The accused then entered into
the house of PW-5 Sunita Patil and ransacked her house. It is
further alleged that the accused then entered into the house
of PW-6 Lahu Keni and assaulted him also.
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6] The report was lodged by PW-1 Harishchandra in relation
to the incident at Panvel Police Station. On the basis of said
report, crime vide crime No. 435 of 1988 was registered for
the ofences punishable under sections 147,148, 302, 307,
452, 323, 504, 506, 427 read with 149 of the IPC and also
under section 37 read with section 135 of the Bombay Police
Act. On completion of investigation, the chargesheet was fled
against the present appellants/accused and other co-accused
for the aforesaid ofences.
7] The accused were charged and tried for the aforesaid
ofences. As stated earlier, the trial court by the impugned
judgement and order convicted the present
appellants/accused and acquitted rest of the 40 accused of all
the charges..
8] We have heard learned Senior Counsel for the
appellants/ accused and learned APP for the respondent -
State.
9] At the outset, we must mention that the trial court has
convicted the present appellants/accused for the frst incident
only, i.e., the incident which took place in the house of PW-1.
As regards second incident, i.e., assault on PW-4 Keshav
Gavand; third incident, i.e., ransacking the house of PW-5
Sunit Patil and fourth incident, i.e., assault on PW-6 Lahu Keni,
the trial court has held that the prosecution has failed to
prove the charges in relation to the said incident and
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acquitted appellants/accused and other co-accused of the
said charges. The State has not fled appeal against the
acquittal of the present appellants/accused of the charges
which were framed against them in relation to second, third
and fourth incident. The State has also not fled appeal
against the acquittal of other co-accused.
10] The trial court has convicted the appellants/accused on
the basis of evidence of following three eye-witnesses:
(i) PW-1 Harishchandra Bhopi, the father of deceased
Kishor;
(ii) PW-2 Anant Gavand, the brother of wife of PW-1;
and
(iii) PW-3 Deepak Bhopi, the brother of the deceased
Kishor.
11] PW-1 Harishchandra Bhopi has stated in his evidence
that the incident occurred on 15.8.1988 at about 8.30 p.m.. At
that time, he, his wife, his brother-in-law Anand, wife of his
brother-in-law Bebibai, his sons Deepak and Kishor and their
friend Uttam and his relative Arun were present at his house.
They all were having dinner in front portion of their house. A
mob of about 40 to 45 persons came to their house and they
all were having axes, swords, spears and sticks in their hands.
Some of them stood in front of northern door of his house and
some stood in front of western door. PW-1 has stated that
accused Nos.1, 5, 6, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19 and
20 entered into his house from northern door of his house.
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Accused Nos.1 and 5 enquired with him as to where are his
sons and their friend Uttam. Accused No.1 then said to him
that he will kill them and will cut down their hands and legs.
PW-1 asked them what happened. PW-1 has stated that
accused No.1, instead of telling him anything, rushed towards
him and assaulted him by axe on his right shoulder. Similarly,
accused No.5 assaulted him on head by axe. While Arun
rushed towards him for help, accused No.9 assaulted him by
sword on his hands and legs. PW-1 has stated that to protect
himself from the assault, he picked up iron chair and moved
it in the air to avoid further assault, on him.
12] PW-1 has further stated that his son Kishor and his
friend Uttam on seeing assault, went on the mezzanine foor
by climbing staircase. PW-1 has stated that the accused
Nos.1,5,9, 11 and 12 went behind them on mezzanine foor
and at that time they were having weapons in their hands.
After they went on the mezzanine foor, he heard the sound of
crying of his son and his friend Uttam and they were
requesting the accused persons not to assault them. PW-1 has
stated that then he heard sound like something was thrown
down from mezzanine foor towards cattle-shed. PW-1 has
stated that after some time, the accused persons came down
from the mezzanine foor and then all of them left his house.
PW-1 has stated that after the accused left his house, he went
on the mezzanine foor and found that his son Kishor was
lying there in injured condition and he was dead. Then he
went towards cattle-shed and found that Uttam was lying
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there and was asking for water and there were multiple
injuries on his person. PW-1 has stated that he thereafter in
injured condition itself had gone to the Panvel Police Station
and narrated the incident to the police. He stated that Uttam
was shifted to the hospital, however, he died while he was
being treated in the hospital.
13] PW-1 has further stated that prior to two months of the
incident, tenders were invited for construction of a road in the
village. The persons from his party were trying to obtain the
said contract. Accused No.1 and persons from his party were
also trying to obtain the said contract. On that account, they
were on cross terms.
14] PW-1 has, in his cross-examination initially reiterated
that only 16 persons entered in the house at the time of
alleged incident and about 40-45 assailants were standing
outside. Said 16 persons entered in the house from northern
side door and none came inside from southern side door. PW-
1 was then confronted with contents in his complaint, wherein
he has stated that the assailants entered in his house from
both the doors. PW-1 has then stated that 15-20 persons
entered in his house from southern side of door. He has stated
that the food was scattered on the foor. PW-1 has admitted
that except enmity on account of contract of construction of
road, the accused had no other cause to assault them.
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15] PW-1 has admitted that there are other houses
surrounding his house. After the accused left his house, he
was waiting for help from the villagers, but none came for his
help. He has stated that by walk, he went to the police station
Panvel and reached there at 10.00 to 10.30 p.m.. He narrated
the incident to the police and at the same time the police
recorded his complaint. PW-1 has then stated that his
complaint was recorded by the police at village Chinchpada
and not in the police station. He stated that till arrival of the
police, the dead body of Kishor was on mezzanine foor. The
police brought the dead body of Kishor on the ground foor
and thereafter the inquest panchanama was recorded. He has
stated that the dead body of Kishor was never lying near
cattle-shed and thus there arises no question of his blood
being found there. PW-1 has stated that the contents in his
complaint that the assailants dragged Uttam and thrown him
towards cattle-shed are correct. He has not seen the accused
assaulting Kishor or Uttam on mezzanine foor. PW-1 has
admitted that he was doing business of selling mangoes in
partnership with accused No.1.
16] PW-2 Anant Gavand, the brother of wife of PW-1 has
stated in his evidence that at the time of incident, he was
staying at the house of PW-1 as the work of repairing of his
house was going on. He has stated that on the day of
incident, at about 8.00 to 8.30 p.m. while they were having
dinner, about 16 to 17 persons entered into the house of PW-1
from northern side door of his house. They were having
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weapons like axes, swords, spears. Those 16-17 persons were
accused Nos.1, 5, 6, 8, 9, 10, 14,15, 16, 17, 18 and 19. They
asked PW-1 as to where are Kishor and Uttam. PW-1 and Arun
tried to stop them from coming forward. That time, Kishor and
Uttam went upstairs by staircase. He has stated that accused
No.1 assaulted PW-1 on his right shoulder by axe. Similarly,
accused No.5 assaulted PW-1 on his head by axe. PW-2 has
stated that PW-1 picked up steel chair to avoid further assault
on him. He further stated that accused Nos.5 and 9 assaulted
Arun by axe. He stated that at that time his sister Sulochana
and his wife Bebibai went ahead to prevent the accused from
coming forward, however, they were also assaulted by kick
and fst blows. He has stated that Deepak tried to prevent
them from going upstairs, at that time, accused No.5
assaulted him by axe. Similarly, accused Nos.12 and 14
assaulted Deepak by axe and sword. When he went to save
Deepak, he was also assaulted by four persons by axe and
swords. Thereafter all those assailants went upstairs by
staircase. Then they assaulted Kishor and Uttam. After some
time, the assailants went out of the house. After the
assailants left the house, he and PW-1 went on the mezzanine
foor and found that Kishor was lying therein. Uttam was not
there. Kishor was made to drink water. However, he was
dead. They came out and went towards cattle-shed and found
that Uttam was lying there at the distance of 4-5 feets from
the cattle-shed. There were injuries on his person. He was
asking for water. Thereafter PW-1 went to Panvel Police
Station. At about 10.00 to 10.30 p.m., PW-1 came back with
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the police. Thereafter, they all were shifted to hospital at
Panvel. The dead body of Kishor was also taken to the
hospital.
17] PW-2 though in his examination-in-chief has stated that
16 to 17 assailants entered into the house of PW-1, however,
in his cross-examination, he has stated that 16-17 assailants
entered in the house from northern side door and 25-30
assailants entered into the house from southern side door. All
the assailants came in the room where they were having
dinner.
18] PW-3 Deepak Bhopi, the son of PW-1 has stated in his
evidence that the deceased Kishor was his brother and
deceased Uttam was friend of his brother Kishor. At the time
of incident, 16-17 persons entered into their house from
northern side door and some persons entered into his house
from southern side door. He stated that the persons who
entered into their house from northern door were accused
Nos.1, 5, 6, 8, 9, 10, 12, 13, 14, 15, 18, 19 and 20. He has
further stated that the persons who entered into their house
from southern door were accused Nos.7, 21, 29, 31, 36, 37,
and 45. He has stated that all of them were armed with
weapons like axes, sticks, swords. He has stated that accused
Nos. 9, 14 and 38 assaulted him by axes and swords on his
both hands. Accused No.7 assaulted him by axe on his hands.
PW-3 has further stated that accused Nos.1 and 5 assaulted
his father on his shoulder and head by axe. His maternal
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uncle was also assaulted by accused Nos.9, 14,18 and 38 by
axe and sword. Accused Nos.5 and 9 assaulted Arun by axe
and sword. When this assault was going on, due to fear,
Kishor and Uttam went upstairs. He has further stated that his
mother Sulochana and maternal aunt Bebibai were also
assaulted by fsts and kick blows. All 16-17 assailants after
assaulting them, went upstairs by staircase. They were the
persons who entered into their house by northern side door.
They started assaulting Uttam and Kishor as he heard their
shouts. After some time, the assailants came down and left
their house. PW-3 has stated that then his father went to
Panvel Police Station. After some time, PW-1 came back with
police. They were then shifted to Panvel hospital.
19] According to the witnesses, the incident took place while
they were having dinner. The witnesses have admitted that
the food was scattered on the foor. PW-1 has admitted that
the blood which was oozing from his injuries did fall on the
foor.
20] We have perused the spot panchanama at Exhibit-129.
The abovesaid facts are missing in the spot panchanama. The
trial court has held that the panchamana was done on the
next day and therefore, possibility of cleaning the foor by
that time by the inmates of house cannot be ruled out.
However, none of the witnesses have stated so in their
evidence. It is unlikely that the police, who had arrived at the
place of incident, immediately within two hours, would not
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take steps to secure the place of incident in a case of such
serious nature and would allow the destruction of evidence.
21] According to the witnesses, both the deceased Kishor
and Uttam were assaulted on mezzanine foor. PW-1 in his
substantive evidence has stated that the deceased Uttam was
thrown down from mezzanine foor and he was found lying
near cattle-shed. However, PW-1 in the report lodged with the
police at Exhibit-106 has stated that the deceased Uttam was
dragged from mezzanine foor to the ground foor and was
then left near cattle-shed. The evidence of PW-1 is, thus not
consistent with the report lodged by him. Apart from it,
according to the witnesses, Kishor was assaulted on the
mezzanine foor and his dead body was lying there only till
arrival of the police. However, in the spot panchanama at
Exhibit-129, which appears to have been drawn on the basis
of information given by witness to the incident namely
Ramesh N. Keni, the place where the deceased Kishor was
lying after assault is shown to be 3 feet away from the cattle-
shed and even his blood was found there. PW-11 Dilip Panse,
the Investigating Ofcer, who drew the spot pancahanama
has admitted the said fact in his cross-examination. The spot
panchanama thus belies the versions of the witnesses.
22] According to substantive evidence of PW-1, only 16-17
persons entered in his house. He was, therefore, confronted
with the report lodged by him at Exhibit-106, wherein he has
stated about 35-40 persons entered in his house. PW-1 then
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stated that his statement in the report that about 35 to 40
persons entered in his house is correct. According to
substantive evidence of PW-2 about 16-17 persons entered in
the house, PW-2 was thus confronted with his statement
portion marked "A" at Exhibit- 145 wherein he has stated that
about 50-60 persons entered in the house. PW-2 then tried to
improve his version by stating that 16-17 persons entered in
the house from northern side door and 25-30 assailants
entered in the house from southern side door.
23] The reason for witnesses' to improve their version
appears to be the dimension of the room in which the incident
took place. According to the spot panchanama, the dimension
of said room is 10 ft x 20 ft. At the time of trial the witnesses
must have realized that, considering the dimension of the
room their testimony that 40 to 50 persons entered into their
house and that too with arms like, axes, swords and spears in
a room of 200 sq. ft. would not be believed. They, thus
improved their version at the time of trial. Considering the
facts and circumstances, we are constrained to say that the
improvements made by the witnesses do cast doubt on the
veracity of their versions.
24] According to the PW-1, the alleged incident took place
as he and persons from his party were on cross terms with
accused No.1 and persons from his party. According to him,
the motive for alleged assault was dispute between him and
accused No.1. If this is so then there was no reason for the
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accused to spare PW-1 and assault his son Kishor and his
friend Uttam.
25] We have perused the postmortem notes. From the
injuries mentioned in the postmortem notes the deceased
Uttam appears to have been more brutally assaulted than
the deceased Kishor. According to PW-1, the deceased Uttam
was even thrown down from mezzanine foor. If at all the
accused were on cross terms with PW-1, then it is not
understood as to why they would assault deceased Uttam so
brutally.
26] Considering the facts and circumstances of the case,
and omissions and contradictions in the evidence of PW-1 to
PW-3, we are compelled to hold that, it would not be safe to
rely upon the evidence of PW-1 to PW-3 to conclude that the
prosecution has proved it's case against the appellants
beyond reasonable doubt.
27] Apart from above, PW-1 has admitted that his house is
surrounded by other houses. In the facts and circumstances of
the case and in view of enmity between the parties, evidence
of independent witnesses at least to the extent that a mob of
40 to 50 persons came to the house of PW-1 was necessary.
However, no independent witness is examined.
28] Considering over all facts and circumstances, in our
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view the trial court was not justifed in convicting the
appellants/accused. In the result, the following order is
passed.
ORDER
1] Criminal Appeal is allowed.
2] The impugned judgment and order dated
10.10.1996 passed by the learned Sessions Judge Raigad
at Alibag in Sessions Case No. 217 of 1988 convicting
the appellants for the ofence punishable under sections
302, 324, 452 read with 149 and under section 148 of
the IPC is set aside and they are acquitted of the said
ofences.
3] Their bail bonds are cancelled.
4] The fne amount, if any paid by the appellants, be
refunded to them.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
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