Bombay High Court
Atmaram S/O Dnyanba Pathade And ... vs The State Of Maharashtra on 18 October, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:22371-DB
CriAppeal-522-2016 with 557-2020
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 522 OF 2016
1. Atmaram s/o Dnyanba Pathade
Age : 26 years, Occu. Agriculture,
R/o. Chorjawala,
Taluka & District Hingoli.
2. Madhav Dnyanba Pathade
Age : 34 years, Occu. Agriculture,
R/o. As above
[Both the appellants are in jail] ... Appellants
[Orig. Accused Nos. 2 & 4]
Versus
The State of Maharashtra
Through Police Station Officer,
Hingoli (Rural) Police Station, Hingoli,
Taluka and District - Hingoli. ... Respondent
.....
Mr. Swapnil S. Rathi, Advocate for the Appellants.
Mr. A. M. Phule, APP for Respondent-State
.....
WITH
CRIMINAL APPEAL NO. 557 OF 2020
Maroti Baban Pathade,
Age : 24 Yrs., Occ: Agri,
R/o: Choujavla,
Tq. & Dist. Hingoli. ... Appellants
[Orig. Informant]
Versus
1. The State of Maharashtra
2. Arjun Gangaram Pathade
Age: 30 Yrs., Occ: Agriculture,
R/o: Choujavla, Tq. and Dist. Hingoli.
::: Uploaded on - 18/10/2023 ::: Downloaded on - 19/10/2023 10:11:01 :::
CriAppeal-522-2016 with 557-2020
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3. Dnyanba Sakharam Pathade
Age: 60 Yrs., Occ: Agriculture,
R/o: Choujavla, Tq. and Dist. Hingoli.
4. Rameshwar Rustum Pathade
Age: 35 Yrs., Occ: Agriculture,
R/o: Choujavla, Tq. and Dist. Hingoli.
5. Jagganath Rustuma Pathade
Age: 26 Yrs., Occ: Agriculture,
R/o: Choujavla, Tq. and Dist. Hingoli.
6. Hari Narayan Pathade
Age: 23 Yrs., Occ: Agriculture,
R/o: Choujavla, Tq. and Dist. Hingoli.
7. Datta Narayan Pathade
Age: 35 Yrs., Occ: Agriculture,
R/o: Choujavla, Tq. and Dist. Hingoli. ... Respondents
[R.2 to 7 Orig. Accused]
.....
Mr. Rajendra N. Chavan h/f Mr. Vishal A. Bagadiya, Advocate for the
Appellant.
Mr. A. M. Phule, APP for Respondent No.1-State.
Mrs. Pratibha S. Bharad, Advocate for Respondent Nos. 2 and 4 to 7.
Mr. Swapnil S. Rathi, Advocate for Respondent No.3.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 12.09.2023
Pronounced on : 18.10.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Both the appeals are arising out of the judgment and order
dated 03.08.2016 passed by Additional Sessions Judge, Hingoli in S.T.
No. 49 of 2014, whereby, out of in all 25 accused persons, accused
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no. 2 Atmaram and accused no. 4 Madhav are convicted for the
offence punishable under Sections 302 and 326 r/w 34 of the Indian
Penal Code [IPC] and sentenced to suffer rigorous imprisonment for
life, while rest of the accused i.e. accused nos. 1, 3, and 5 to 25 stand
acquitted from all the charges.
2. The convicted accused nos. 2 and 4 i.e. Atmaram and Madhav
have challenged the above conviction by preferring Criminal Appeal
No. 522 of 2016, while the original informant has preferred Criminal
Appeal No. 557 of 2020 questioning the acquittal to the extent of
accused nos. 1, 3, 5, 6, 8 and 9. Since both the appeals are arising out
of one and the same judgment and heard at one and the same time,
we propose to decide them by this common judgment.
PROSECUTION CASE IN TRIAL COURT IS AS UNDER
3. The conspectus of the prosecution case in brief is that Baban
and appellant Dnyonaba are cousins. Whereas, injured Jijabai is wife
of Baban, informant is son of Baban and rest accused are family
members of appellant Dnyanoba. They both are agriculturist by
occupation and their lands are abutting to each other. There were
issues between them about area of the land since four to five years
prior to the incident.
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4. The first spark of controversy fell on 24.04.2014 at 6.00 p.m. at
marriage ceremony of daughter of one Parasram Gaikwad in the
village which was attented by PW10. Prosecution story is that,
accused appellat party taunted and teased PW10 saying that he has
rendered no assistance in marriage and has merely come to enjoy
food. Feeling humiliated, PW10 Baban came home in the evening and
reported to his family members. Informant and his brothers, namely,
Prakash (deceased) and Sopan went to the field and haulted that
night there itself.
5. The second episode took place at 8.00 am on the next morning
i.e. 25.04.2014. In all 25 accused persons came to the house of PW10
Baban, getting armed with articles sticks, rod, axe. Shivcharan and
Karan passed the information to PW1 on phone and therefore
informant and his brothers reached home. According to them, accused
no.17, 18, 19, 20, 21, 22, 24, 25 entered the house. According to
informant, accused no.1 Arjun, Accused no.2 Atmaram, Accused 3, 5
also entered and they assaulted his mother on the head with sticks
and rod and caused her grevious injury. When informant and his
brothers intervened, that time it is alleged accused 1, 3, 2, 4, 6
Jagannath and Accused no. 9 Hari, Accused no. 8 Datta mounted
assault on Prakash on face, nose, back , legs and caused his grevious
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injuries. Further according to informant, when he and Sopan fled to
save themselves, accused no. 7, 10, 11, 14 Badri, 15 Prasad, 12 Vithal,
16 Sheshrao chased them with sticks and rods and caught informant
on the bridge near the field of one Trimbak Sambhaji Pathade and
assaulted him . One Bhagwan, Sitabai sopan Pathade intervened and
rescued him. According to informant, his brother Prakash and mother
were shifted to Civil Hospital. On examination Prakash was reported
dead. His mother was admitted alongwith himself and his father.
Police officer approached him in the hospital where he gave report, on
the strength of which FIR was registered.
6. After completion of investigation, all accused were made to face
trial before Additional Sessions Judge, Hingoli, who on conclusion of
trial appreciated the evidence and passed following order:
1. Accused No.2 Atmaram Dnyanoba Pathade and
accused No.4 Madhav Dnyanoba Pathade are
convicted under section 235(2) of Cr.P.C. of charges
for the offence punishable under section 302 read
with section 34 of Indian Penal Code. They are
sentenced to suffer R.I. for life and shall pay a fine of
Rs.2,000/- (Rupees two thousand) each. In default
they shall suffer simple imprisonment for three (03)
months.
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2. Accused Nos. 2 Atmaram Dnyanoba Pathade and
accused No.4 Madhav Dnyanoba Pathade are
convicted under section 235(2) of Cr.P.C. of charges
for the offence punishable under section 326 read
with section 34 of the Indian Penal Code. They are
sentenced to suffer R.I. for ten (10) years and shall
pay fine each of Rs.1,000/- (Rupees one thousand). In
default shall suffer simple imprisonment for a period
of one month.
3. Both sentences shall run concurrently.
4. Accused Nos. 2 and 4 are acquitted under section
235(1) of Cr.P.C. of charges punishable under section
147, 148, 302, 449, 450, 324, 504, 506, 109 read with
section 149 of Indian Penal Code.
5. Accused Nos. 2 & 4 to surrender their bail bonds.
6. Set off is granted to accused Nos. 2 and 4.
7. Accused Nos.1, 3, 5 to 25 are acquitted under section
235(1) of Cr.P.C. of charges punishable under section
147, 148, 449, 450, 302, 307, 324, 504, 506 read with
section 149 of Indian Penal Code.
8. Their bail bonds stands cancelled.
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9. Muddemal property being worthless be destroyed
after appeal period is over.
10. In view of mandate laid down under section 437(A) of
Cr.P.C., accused Nos. 1, 3, 5 to 25 are directed to
furnish surety of Rs.15,000/- (Rupees fifteen
thousand) each on execution of P.R. Bond alongwith
one solvent surety and shall undertake to appear
before appellate Court on receipt of notice of appeal.
Here, Criminal Appeal No. 522 of 2016 is on behalf of two
convicts i.e. accused nos. 2 and 4. At the same time, informant has
exercised provision under Section 372 of Cr.P.C. to question the order
of acquittal to the extent of accused nos. 1, 3, 5, 6, 8 and 9. However,
it needs to be noted and mentioned that State has not preferred
appeal against order of acquittal of rest of the accused i.e. accused
nos. 7, 10 to 25.
SUBMISSIONS
On behalf of convicts:
7. The sum and substance of the arguments advanced by learned
counsel for the appellants in Criminal Appeal No. 522 of 2016 is that
alleged incidence was a free fight. Prosecution failed to bring forward
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very genesis of the occurrence. According to him, very motive is
missing in the evidence of prosecution. He would strenuously submit
that only interested witnesses are examined and independent
witnesses are withheld and therefore adverse inference needs to be
drawn against prosecution. Taking us through the evidence of
informant, he would vociferously submit that apart from being
interested witnesses, these witlessness cannot be said to be direct eye
witnesses, more particularly in view of the answers given by them in
cross. He submitted that it is apparently doubtful whether these
witnesses had any occasion to see the occurrence. Referring to the
evidence of informant and his cross, learned counsel would submit
that his evidence is ambiguous in nature. He has not spelt out the
nature of articles allegedly held by accused persons and he has also
not specifically attributed any distinct role to the accused persons and
it is so evident from his substantive evidence, but he has referred to
some articles in his statement dated 25.04.2014.
8. According to learned counsel, here prosecution has failed to
demonstrate where the actual incident took place as, according to
prosecution, there are two spots, but according to him, there is no
incriminating material laid hands on by investigating machinery. He
also took us through the evidence of wife of deceased i.e. PW4 Jijabai
CriAppeal-522-2016 with 557-2020
and would point out to her chief and submit that even her testimony
too is silent about nature of weapon allegedly held and used and
further he questioned prosecution version by submitting that when
according to this witness, there was assault by article like stick, how
at all there could be grievous injury.
9. Further taking us through the testimonies of PW5 Sumanbai,
PW6 Sitabai, PW7 Kiran and PW10 Baban, he would submit that none
of them are lending support to the testimony of informant.
10. According to him, none of the panchas have supported
prosecution, but still learned trial court has accepted the prosecution
case which is only of related witnesses.
11. That, cross of the witnesses have exposed the prosecution story
to be fabricated and manufactured as it is full of material omissions,
contradictions and inconsistencies. Even according to learned counsel,
in this case, ocular account does not match with medical account and
for the more reason, case of prosecution cannot be accepted as
proved. In support of his above submissions he seeks reliance on
ruling of this Court in the case of State of Maharashtra v. Kisan
Nivrutti Choudhary ; 2015 (1) Bom Cr. (Cri) 229.
CriAppeal-522-2016 with 557-2020
12. Lastly he would submit that on the same set of evidence,
learned trial court has acquitted rest of the accused, but has convicted
two accused for offence under Sections 302 and 326 r/w 34 of IPC
and therefore, it is his submission that apparently the analysis and
appreciation of evidence is improper.
On behalf of informant:
13. On behalf of informant, there is challenge to the order of
acquittal to the extent of accused nos. 1, 3, 5, 6, 8 and 9. Learned
counsel would submit that roles of above acquitted accused are
apparently reflected in the testimonies of injured as well as eye
witnesses. That, ocular account was finding support from medical
evidence and therefore, learned trial court ought not to have
acquitted these accused. They had all come with intention to commit
the offence and all were seen and reported to be armed and all had
participated in assaulting deceased, informant and injured party.
Therefore, learned trial court ought not to have acquitted them and as
such, it is prayed that their acquittal be set aside and they too be
convicted like other accused persons.
CriAppeal-522-2016 with 557-2020
On behalf of State:
14. On behalf of State, learned APP would point out that learned
trial court has correctly sifted the evidence on behalf of prosecution.
Evidence of eye witnesses and injured witnesses, on correct
assessment and analysis, is accepted as worthy of credence. That, so
much part of the evidence which was uncorroborated has been
discarded by learned trial court and accused nos. 1, 3, 5 to 25 have
been acquitted and therefore, it is his submission that, such approach
itself shows that there is meticulous examination and only guilty are
convicted. That, there is no merit in the appeals and as no perversity
has been brought to the notice, he prays to dismiss both appeals, i.e.
on behalf of convicts as well informant.
EVIDENCE ON BEHALF OF PROSECUTION
15. In order to establish their case, prosecution seems to have
examined in all 23 witnesses. Their role and status can be
summarized as under:
Injured/eye witnesses
PW1 Maroti s/o Baban Pathade is the informant and an injured eye
witness. He is brother of deceased Prakash.
CriAppeal-522-2016 with 557-2020
PW4 Jijabai is the wife of Prakash Pathade and an eye witnesses.
PW5 Sumanbai w/o Baban Pathade is the mother of deceased
Prakash and an injured eye witness.
PW6 Sita w/o Sopan Pathade is sister-in-law of deceased and also
an eye witness.
PW7 Kiran is a minor son of deceased Prakash. He has also
witnessed the assault.
PW10 Baban s/o Ganpati Pathade is the father of deceased and an
injured eye witness.
Pancha witnesses
PW2 Trimbak Sambhaji Pathade is pancha to spot panchanama
Exhibit 151.
PW3 Tulshiram Kishan Khedekar is father-in-law of informant. He
has acted as pancha to inquest panchanama Exhibit 156.
PW8 Shanker Gangaram Gade is pancha to disclosure and recovery
panchanama Exhibits 168 and 169 at the instance of accused
Vithal Narayan Pathade. He has identified the accused as well
as weapon stick [article 26] in the court.
CriAppeal-522-2016 with 557-2020
PW9 Jagan s/o Prakash Khedekar is pancha to disclosure and
recovery panchanama Exhibits 172 to 175 at the instance of
accused Madhav and Arjun respectively. He has identified both
accused as well as weapons i.e. axe [article 8] and rod
[article 9].
PW11 Vishwanath s/o Sakharam Pathade and PW 14 Madhav s/o
Bhagwan Pathade have acted as pancha to seizure
panchanamas Exhibits 181 to 189. However, they have not
supported prosecution.
PW12 Vishwanath Rustuma Jogdand, PW13 Gajanan s/o Ananda
Ghyar, panchas to seizure panchanamas Exhibits 193 and 194,
have also turned hostile and cross-examined by posecution
itself.
PW15 Subhash s/o Namdeo Kamble, PW21 Shaikh Shakil Shaikh
Gaffar, panchas to seizure panchanamas Exhibits 199 and 200
have also turned hostile.
PW17 Bhimao s/o Gangaram Kashide, PW19 Shaikh Babu s/o Shaikh
Hussein, panchas to seizure of clothes of deceased Prakash as
well as injured Sumanbai [Exhibits 222 and 223], have also
not supported prosecution.
Police Officials
PW16 P.S.O. Dilip Thombal is the second Investigating Officer.
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PW20 Head Constable Abhimanyu Kande is carrier of muddemal.
PW22 P.I. Punaji s/o Gamaji Pohane is the police officer who
registered FIR Exhibit 146. He is the first Investigating Officer.
PW23 P.I. Rafique Chand Shaikh is the third Investigating Officer.
Medical Evidence
PW18 Dr. Sandip Balasaheb Kakandikar is the doctor who examined
injured Sumanbai and Maroti as well as accused persons,
namely, Dnyanoba and Atmaram. He has also conducted
postmortem and issued cause of death as 'hemorrhagic shock
due to multiple injuries (unnatural)'. He has identified injury
certificates Exhibits 229, 230, 237 and 238. He has also
identified provisional cause of death certificate as well as
postmortem report Exhibits 233 and 234 respectively.
16. Apart from oral account, in trial court, prosecution has placed
on record multiple documents such as FIR, various panchanamas,
medical and CA reports etc.
17. Here, we are called upon to ascertain whether conviction of
accused nos.(2) and (3), namely, Atmaram and Madhav [appellants in
Criminal Appeal No. 522 of 2016] for the offence under Sections 302
CriAppeal-522-2016 with 557-2020
and 326 r/w 34 of IPC is just, legal and proper. Further, we are also
required to get satisfied whether acquittal of accused nos.(1) Arjun,
(3) Dnyanba, (5) Rameshwar, (6) Jagganath, (8) Datta and (9) Hari
from above charge is justified.
18. As Section 374 of Cr.P.C. is invoked, we are required to re-
appreciate, re-examine and re-analyze the entire oral and
documentary evidence adduced by prosecution in the trial court.
Homicidal
19. Before adverting to the so called ocular account, we wish to get
ourselves satisfied that death of Prakash is shown by the prosecution
to be homicidal one. To find answer to the same, we are required to
visit evidence of autopsy doctor i.e. PW18 Dr. Sandip Kakandikar,
who, in his substantive evidence, has deposed about coming across
following external injuries as mentined in column no.17 of the
postmortem report :
1. Contused lacerated wound of size 2 x 2 x 0.5 cm.
present over root of nose with irregular margin red
brown in colour.
CriAppeal-522-2016 with 557-2020
2. Contusion of size 2 x 1 cm. x muscle deep above left
brow red brown in colour.
3. Contusion of size 18 cm. length, 6 cm. width and
muscle deep red brown colour extending from right
inframammary region, extending obliquely on left side
involving right hypochondraic epigastric left
hypochondraic region.
4. Contused lacerated would of size 3 x 2 x 0.5 cm.
present over right leg over sheen of tibia over 1/3rd
anterior surface exposing underlying muscle with
sharp edges, red brown in colour.
5. Abrasion of size 2.1.5 cm. present over left knee red
brown in colour.
6. Abrasion of size 2 x 2 cm. over right knee red brown
in colour.
The autopsy doctor, in column no.18, has noted fracture injury
to root of nose and fracture of 8th, 9th and 10 ribs on right side and
according to him, all above injuries are ante-mortem.
According to the autopsy doctor, the cause death is
'hemorrhagic shock due to multiple injuries (unnatural)'. After noting
the corresponding internal injuries, the autopsy doctor has further
opined about injuries mentioned in column no.17 that, injury nos. 1
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and 4 are possible due to assault by axe, injury nos. 2 and 3 are
possible due to assault by stick and iron rod and injury nos. 5 and 6
are possible is assaulted by stick.
20. In the light of above discussed evidence of medico legal expert,
nature of injury, its size, location, there is no hesitation to hold that
Prakash met homicidal death only and not otherwise.
21. Now, let us see whether there is convincing and legally
acceptable direct eye witness account as claimed by prosecution.
22. Prosecution came with a case of availability of direct evidence
i.e. in the form of ocular account of PW4 Jijabai, PW6 Sita and PW7
Kiran so also injured witnesses PW1 informant Maroti, PW5
Sumanbai and PW10 Baban.
ANALYSIS OF OCULAR ACCOUNT
23. Before dealing with the evidence of above so called crucial
witnesses, i.e. PW1 informant Maroti (injured), PW4 Jijabai, PW5
Sumanbai (injured), PW6 Sita, PW7 Kiran, and PW10 Baban
(injured), we deem it fit to spel out the principles which are expected
to be borne in mind while appreciating ocular account. Useful
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reference could be made to the judgment of Hon'ble Apex Court in
the case Balu Sudam Khalde and another v. The State of Maharashtra
[Criminal Appeal No. 1910 of 2010], reported in 2023 SCC OnLine
SC 355 wherein certain principles are enunciated and we borrow and
reproduce the observations made in the above judgment, more
particularly in para 25, which run as under:
"25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles
for appreciation of ocular evidence in a criminal case
can be enumerated as under:
"I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinize he evidence more particularly keeping
in view the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and evaluate
them to find out whether it is against the general tenor of
the evidence given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it
unworthy of belief.
CriAppeal-522-2016 with 557-2020
II. If the Court before whom the witness gives evidence had
the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial court
and unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the
ground of minor variations or infirmities in the matter of
trivial details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies
in the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking
sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer not going to the root
of the matter would not ordinarily permit rejection of the
evidence as a whole.
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between
the evidence of two witnesses or as between two
statements of the same witness) is an unrealistic approach
for judicial scrutiny.
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VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
VII. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned
to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the part of
another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to
be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to
make very precise or reliable estimates in such matters.
CriAppeal-522-2016 with 557-2020
Again, it depends on the time-sense of individuals which
varies from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to
get confused, or mixed up when interrogated
later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The
sub-conscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent
with the evidence need not necessarily be sufficient to
amount to contradiction. Unless the former statement
has the potency to discredit the later statement, even if the
later statement is at variance with the former to some
extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State
CriAppeal-522-2016 with 557-2020
of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State
of UP (AIR 1959 SC 1012)]"
24. Here, PW1 Maroti, PW5 Sumanbai and PW10 Baban, according
to prosecution, are not only eye witnesses, but are also injured
witnesses. It is fairly settled position that testimony of injured eye
witness always remains at higher pedestal and should not be
overlooked or discarded unless it is shown to be patently unworthy of
credence. Testimonies of injured witnesses has its own relevancy and
efficacy and hence, on numerous times, testimonies of injured
witnesses are accorded special status and are readily accepted. Law
on the point of evidentiary value of injured witness is dealt in the
celebrated case of Jarnail Singh v. State of Punjab; (2009) 9 SCC 179
and Balraje @ Trimbak v. State of Maharashtra; (2010) 6 SCC 673;
25. Now, let us see whether there is convincing and legally
acceptable direct eye witness account as claimed by prosecution.
26. PW1 Maroti, the informant and the injured witness, in his
evidence at Exhibit 144, has initially deposed about relations with
accused persons and a dispute concerning land since last four to five
years. He further deposed that one day prior to the incident, i.e. in the
CriAppeal-522-2016 with 557-2020
evening of 24.04.2014, his father PW10 Baban had been to attend
marriage of daughter of one Parasram Dnyandeo Gaikwad, where
accused no.3 Dnyanoba and accused no.4 Madhav were also present.
They taunted Baban saying that he had not come for work and so he
should not have come only to enjoy dinner. According to this witness,
his father Baban told him the above fact. Thereafter, he himself along
with brothers Prakash and Sopan went to the field and halted there
for the night.
This witness further states that on the next day i.e. on
25.04.2014, he received a call from Shivcharan and Kiran informing
him about accused persons approaching their house and intending to
assault his father Baban and so he rushed home and saw accused
persons gathered before his house armed with weapons. According to
this witness, the female accused i.e. accused nos. 17 to 25 instigated
rest of the accused to enter in the house and assault, upon which,
accused no.1 Arjun, accused no.2 Atmaram, accused no.3 Dnyanoba,
accused no.5 Rameshwar entered in the house and assaulted his
mother Sumanbai on head left parietal region with sticks and rods
causing her grievous hurt and when this witness along with brothers
Prakash and Sopan went to rescue, accused no.1 Arjun, accused no.2
Atmaram, accused no.3 Dnyanoba, accused no.4 Madhav, accused
CriAppeal-522-2016 with 557-2020
no.6 Jagannath, accused no.8 Datta and accused no.9 Hari assaulted
brother Prakash on face, nose, back, legs by weapons and caused
grievous injuries. According to this witness, when he himself and
Sopan ran away due to apprehension of assault, accused no.7 Waman,
accused no.10 Kishan, accused no.11 Kedar, accused no.12 Vithal,
accused no.14 Badri, accused no.15 Prasad and accused no.16
Sheshrao chased them armed with sticks and rods. They caught this
witness on the bridge near the field of one Trimbak and assaulted him
by stick, kicks and fists due to which he sustained covert injuries on
shoulder, back and stomach. This witness further deposed that his
brother Prakash and mother Sumanbai were shifted to Civil Hospital,
Hingoli where, upon examination, the Medical Officer declared
Prakash dead. According to this witness, police recorded his statement
in the hospital itself, which is made the basis of registration of crime.
He identified his statement as well and the FIR to be marked at
Exhibits 145 and 146 respectively.
27. PW4 Jijabai, wife of deceased Prakash, in her evidence at
Exhibit 157 has also deposed about the incident of taunting Baban in
the marriage ceremony on the previous day of assault. In para 2 of
her examination-in-chief, she has deposed that, on the next day early
morning, when her father-in-law Baban was sitting before the house,
CriAppeal-522-2016 with 557-2020
all accused came there armed, accused no.1 Arjun assaulted Baban by
iron rod and accused no.4 assaulted him by the butt side of axe. That,
when her mother-in-law Sumanbai attempted to intervene, accused
no.1 Arjun and accused no.5 Rameshwar assaulted her by iron rods
and accused no.2 Atmaram and accused no.3 Dnyanoba assaulted her
by sticks.
She further deposed that when her husband Prakash and
brothers-in-law Maroti and Sopan came there on being called by her
son Kiran on telephone, accused no.1 Arjun assaulted Prakash by iron
rod, accused no.4 assaulted him by axe while accused no.2 Atmaram,
accused no.3 Dnyanoba and accused no.6 Jagannath assaulted him by
sticks, due to which he fell down and became unconscious. She
narrated the sites targeted by them as face, legs, stomach, head and
back. According to her, Maroti and Sopan ran away and all accused
chased them. After some time, Sitabai came there and informed her
about maroti being assaulted near the field of Trimbak. She also
stated about Medical Officer examining Prakash and declaring him
dead. On being confronted with the weapons, she was unable to
mention which accused possessed which weapon.
CriAppeal-522-2016 with 557-2020
28. PW5 Sumanbai an injured witness, who is mother of deceased
Prakash and informant Maroti, also deposed on the similar lines and
attributed acts of assault to the accused as is deposed by PW4 Jijabai.
However, in addition to that, she has also attributed assault on
deceased Prakash by sticks to accused nos. 8 and 9 i.e. Datta and
Hari. She has narrated sites of injuries suffered by her as head, left
side of face, backside of head; by Prakash as head, nose and all body;
and by her husband Baban as head. She was not able to identify the
weapons on being confronted to her while in the witness box.
29. PW6 Sita w/o Sopan Pathade, is the sister-in-law of deceased
Prakash. PW7 Kiran is the minor son of deceased Prakash, whereas
PW10 Baban is the father of deceased Prakash. All three of them gave
evidence similar to that of PW5 Sumanbai except that all these three
witnesses have not attributed role of assault on Prakash by stick to
accused no.3 Dnyanoba, as is done by PW5 Sumanbai. These
witnesses were also unable to disclose which weapon was used by
which accused, except that PW10 Baban identified the axe article 8 to
be possessed by accused no.4 Madhav.
30. It is noticed that each of the above witnesses are extensively
cross-examined. Informant-injured PW1 Maroti is questioned about
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family disputes over landed properties, visibility of spot form house,
location of the house, details of surroundings, geographical
description, location of doors and windows, their height, length and
breadth, distance between house and field, neighbours to the field,
village politics etc. In para 18, questions are put regarding dispute on
account of water outlet with Sitaram Nimbole and crime registered in
that backdrop. Para 19 to 22 are regarding questions which are not
relevant with the occurrence in question. Regarding the occurrence,
questions are raised in para 23 wherein omissions are brought
regarding assault on face of deceased Prakash by weapons and
accused catching this witness on the bridge near field of Trimbak.
While under cross at the hands of learned counsel for accused
nos. 2, 3, 4, 22 and 23, i.e. from para 24 to 31, enmity is brought and
questions are posed regarding occurrence of 24.04.2014. Again
details about population of the village, houses of villagers and their
geographic directions are solicited. In para 32 of the cross, questions
are posed about whether accused entered the varandah and which
room they entered thereafter and who all amongst the family
members were present and where was mother Sumanbai present.
Para 34 suggests that occurrence is not disputed. Rather, the manner
of questioning itself indicates that there is no serious challenge to the
CriAppeal-522-2016 with 557-2020
aspect of accused visiting informant's house. In further cross,
suggestions about informant party assaulting accused nos. 2 and 3 is
flatly denied. Thereafter, again questions are put which are not
relevant to the occurrence. Again questions posed in para 64 of the
cross suggest that occurrence of assault has not been disputed.
31. Another eye witness PW4 Jijabai, who is wife of deceased
Prakash, is also extensively cross-examined and omission is brought
regarding assault by accused no.3 with stick. She has denied her
husband and his brothers Sopan and Maroti chasing accused no.4
Madhav. In para 18 and 19 of the cross, questions are regarding
occurrence which allegedly took place on 24.04.2014. Para 20 to 22
are touching the aspect of occurrence.
32. PW5 Sumanbai, injured, is also extensively cross-examined but
in our considered opinion, her testimony has not been shaken on the
point of accused persons first coming, pelting stones, they to be
armed with stones, sticks, iron rod and axe. So also, her testimony
about she herself, her husband Baban and her son Prakash being
assaulted has virtually remained unchallenged.
CriAppeal-522-2016 with 557-2020
33. Even wife of Sopan i.e. PW6 Sitabai is subjected to extensive
cross and in para 6, she has answered that all accused came to their
house and she saw injury on the head of Baban. She has volunteered
that she was taking care of the children. Surprisingly this witness is
asked about the force and intensity of the blows inflicted on the face
of her mother-in-law i.e. Sumanbai. Omissions are brought regarding
accused coming at about 7.30 a.m., obstructing Maroti and this
witness pacifying the quarrel. Apparently, these are not material
omissions. She answered that she herself, Jijabai, Nandabai and 9
children were present in the kitchen and therefore, it is possible that
details spelt out by PW1 informant, PW4 Jijabai and PW5 Sumanbai
may not have been reiterated by her.
34. PW7 Kiran, a child witness, is also extensively cross-examined
and even this witness admitted that at the time of assault he himself,
his brother, sisters, mother and aunts were in the kitchen. However, in
cross though he stated that he is unable to give time of the incident,
he categorically answered that he had seen axe in the hands of
accused no.4 Madhav. In para 12 he answered that Baban suffered
blow of axe and accused no.2 Atmaram assaulted his grandmother,
but he is unable to state exact part of the body of Prakash on which
Madhav had assaulted. Rest of the cross is also of not any relevance.
CriAppeal-522-2016 with 557-2020
35. Another injured witness PW10 Baban, in his cross at para 10
has admitted that on the day of incident, he was sitting before the lap
nearer the side of bathroom and that he sustained swelling injury on
head. He denied about sustaining bleeding injury. He has admitted
that his daughters-in-law were in the kitchen and his wife Sumanbai
was in varandah in standing position. This itself shows that whatever
PW6 Sitabai and PW5 Jijabai testified is truthful. He admitted that
Sumanbai did not come near him in order to rescue him and that
Kiran was at the window of kitchen room. He further admitted that
his daughters-in-law came out of the kitchen room after accused ran
away. In para 10 of the cross, he admitted that he can not give details
of the rod used by accused no.1 Arjun or the clothes on the person of
accused and his family members. Such questions are absolutely
irrelevant. Even questions posed in para 14 till 33 are also having no
nexus with the alleged occurrence. In para 34 of the cross, witness
has confirmed about assault on his shoulder by side of the axe and
about sustaining contusion injury and accused Atmaram and
Dnyanoba assaulting his wife Sumanbai by stick, accused Madhav
assaulting Prakash with axe. He admitted inability to disclose exact
which part of the head of Prakash was assaulted by Madhav.
CriAppeal-522-2016 with 557-2020
Therefore, such manner of cross itself shows that irrelevant questions
are posed and even occurrence is got confirmed.
Therefore, on going through the lengthy cross, we have noticed
that there are too many questions on aspects which have no relevance
with the occurrence.
36. From the manner of the cross, we are of the opinion that
endeavour of the defence from the entire tenor of the cross was to
suggest that complainant party had assaulted accused party. However,
above quoted witnesses are unanimous and categorical about accused
party visiting house of complainant party and mounting assault.
37. On re-appreciation and re-analysis, we have noticed that the
ocular evidence on behalf of prosecution is intact about accused
coming armed and mounting assault. As stated above, there does not
seem to be serious dispute about the occurrence of assault, more
particularly in the backdrop of nature of cross.
38. If we juxtapose the prosecution evidence, more particularly of
PW1 Maroti, PW4 Jijabai, PW5 Sumanbai, PW6 Sitabai, PW7 Kiran
and PW10 Baban, we are of the firm opinion that firstly, they are all
CriAppeal-522-2016 with 557-2020
natural witnesses being present in their house; occurrence had taken
place in the broad day light and in early hours of morning just inside
their own abode and second episode had taken place at a spot near
the bridge. Their evidence is inspiring confidence. Evidence shows
that injured PW10 Baban was sitting outside. PW4 Jijabai and PW6
Sitabai were also very much in the house but in the kitchen. Whereas
PW5 Sumanbai was in varandah. Therefore taking into account their
location, there are bound to be different versions. However, Jijabai
and Sitabai both were with children in the kitchen and they are both
consistent about accused persons entering their house and carrying
out the assault. They had clear occasion to note what was happening
around. Their testimonies are lending support to each other. In cases
where there are numerous witnesses, when two of them are
consistent, there is no reason to doubt the case of prosecution.
Ocular evidence coupled with injured witness account has
remained unshaken on the material part of the occurrence. Witnesses
are found to be amply corroborating and lending support to each
other about the occurrence on the morning of 25.04.2014. Though
there are certain variances, it is to be borne in mind that they are
bound to be, because assault was carried out all of a sudden and
therefore witnesses were taken by surprise. They must have been in
CriAppeal-522-2016 with 557-2020
shock at the time of occurrence. Even various persons react in various
manner and capacity of observation also varies from person to person
and hence it is unreasonable to expect each of the witness to be
consistent on each count. It is fairly settled position, as has been
observed by the Hon'ble Apex Court in Gangadhar Behera v. State of
Orrisa ; (2002) 8 SCC 381, that those variances and discrepancies,
which do not corrode the credibility of witness, are insignificant. In
the case in hand, the prosecution witnesses are rustic villagers and
more particularly while facing lengthy cross-examination at the hands
of skilled cross examiner, there are bound to be some variances. We
do not wish to give undue importance to the so called omissions and
variances which are not material. No person under attack is expected
to take mental note of actual time of occurrence, directions of arrival,
who assaulted for how much time and with what force and witnesses
are not expected to reproduce the number of blows. The manner and
duration of cross clearly shows that attempt has been made to bring
the rustic villagers to the brink of virtually admitting to every
question.
39. Now let us deal with the objections raised by learned counsel
for appellants.
CriAppeal-522-2016 with 557-2020
40. It is vociferously submitted that on the same set of evidence,
accused nos. 1, 3 and 5 to 25 are acquitted and only accused nos. 2
and 4 are charged with murder. Same ground is also raised by learned
counsel for the informant. In the light of such objections we have
meticulously gone through the evidence of above discussed witnesses.
We too have come to the conclusion that, taking into consideration
the manner of assault and nature of articles held by accused no. 2
Atmaram and accused no. 4 Madhav, coupled with the medical
evidence, only they two can be attributed the charge of homicide
because prosecution has not shown in trial court that acquitted
accused also shared the common intention or object along with
accused nos. 2 Atmaram and 4 Madhav. Therefore, taking into
consideration the role attributed by each of the eye witnesses as well
as injured witnesses, it would be unreasonable to hold rest of the
accused also responsible for homicide. The Hon'ble Apex Court in
Gurcharan Singh v. State of Punjab ; AIR 1956 SC 460 has observed
that merely because of some of the accused persons have been
acquitted, though evidence against all of them, so far as direct
testimony went, was the same, does not lead as a necessary corollary
that those who have been convicted must also be acquitted. It is
observed that it is always open to a court to differentiate the accused
who had been acquitted from those who are convicted. Here, there
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are distinguishable roles of accused persons and therefore, only those
accused who are responsible for death have been held guilty for
charge of murder.
41. The next attack on the prosecution case is that no independent
witness is examined, rather only interested witnesses are examined.
In our opinion, mere failure of prosecution to examine independent
witness itself will not be sufficient to raise doubt about the entire
prosecution version and evidence. It is to be noted that occurrence
has taken place in the morning at around 8.00 a.m. Assault was made
by entering the house of informant and therefore, independent
witnesses may not be available. Even eye witnesses and injured
persons have not spoken or named any other villagers to be present
there and therefore, non examination of independent witnesses would
not be fatal to the prosecution. It is fairly settled law that merely
because related witnesses are examined, that by itself would not
affect the credibility of testimony of witnesses.
42. The third ground of criticism raised before us is that
prosecution had not brought forward genesis behind the occurrence
and there is no motive. We discard the above submissions for the
simple reason that in the very FIR at the instance of PW1 Maroti,
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enmity has been spelt out. Even suggestions to prosecution witnesses
are clearly indicating animosity on account of land. Moreover, here,
when there is overwhelming evidence not only in the form of ocular
account but even injured witness account, the aspect of motive takes a
back seat and prosecution is not expected to establish the same.
43. Prosecution version is also doubted by submitting that accused
party was also injured. Evidence to that extent is sought to be
brought, however, except accused no. 2 Atmaram, rest of the so called
injured accused has suffered simple injuries. Though Atmaram is
shown to have suffered grievous injury, there is no evidence from his
side to show that it was independently caused by complainant party.
Said injury could have been caused during free fight. No evidence has
been brought on record by accused who was holding what and who
caused the grievous injury. Note is required to be taken of the fact
that so called injured accused have not set law into motion.
Therefore, prosecution is not expected to explain so called simple
injuries suffered by accused party. Resultantly, the above objection
raised before us holds no water.
44. It is also vehemently pointed out that almost all pancha
witnesses have not supported prosecution version and that all
CriAppeal-522-2016 with 557-2020
panchanamas are therefore not proved. True it is that panchas have
taken somersault while in witness box but all panchanamas are got
proved through I.O. and therefore there is no force in the submission
that panchas having not supported, story of prosecution is rendered
doubtful. We wish to note that pancha to recovery of axe has
supported prosecution.
45. On carefully going through the impugned judgment, we have
noticed that learned trial Judge has meticulously and carefully
analyzed the eye witness account and injured witness account. The
findings are outcome of careful appreciation regarding role of each of
the accused. Roles of accused nos. 1 Arjun, 3 Dnyanoba, 5
Rameshwar, 6 Jagannath, 8 Datta and 9 Hari are not clearly
established. As regards to accused nos. 1, 6, 8 and 9 are concerned,
their presence at the spot is natural, being neighbours of Baban. They
were attributed role about holding sticks but the same are not
recovered. Only those accused, against whom there is consistent
evidence, are held guilty. Acquitting some of the accused for want of
evidence itself suggests that learned trial Judge has carefully sifted
the prosecution evidence and thereafter, on getting satisfied about
credibility and reliability of the evidence, findings have been
recorded. Even on re-appreciation and re-analysis of prosecution
CriAppeal-522-2016 with 557-2020
evidence, in our opinion, the conclusion drawn is the only possible
conclusion that would flow. Therefore, we do not want to interfere or
disturb the findings reached at by learned trial Judge.
46. Learned counsel for informant also failed to point out which
part of the evidence has not been appreciated properly or there is
improper appreciation of available evidence. Therefore, we find no
merit in appeal at the end of informant also. Hence, we proceed to
pass the following order :
ORDER
Both the appeals are hereby dismissed.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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