2009 ALL MR (Cri) 2931
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BILAL NAZKI AND A.R. JOSHI, JJ.

Dnyandeo Dhandiba Jadhav & Ors.Vs.State Of Maharashtra

Criminal Appeal No.14 of 1995

20th April, 2009

Petitioner Counsel: Mr. A. P. MUNDARGI
Respondent Counsel: Mr. V. B. KONDE-DESHMUKH

Criminal P.C. (1973), S.374 - Penal Code (1860), Ss.302, 147, 148, 149 - Evidence Act (1872), S.3 - Appreciation of evidence - Injured eye-witness - Murder case - Appeal against conviction - Entire prosecution case based on P.W.1 complainant who is the inured eye-witness - Held, substantive evidence of the said witness is required to be scrutinized, with care in order to ascertain the involvement of the appellant-accused, while deciding the present appeal. (Paras 7, 11, 12)

JUDGMENT

A. R. JOSHI, J.:- The present criminal Appeal is preferred by original accused Nos.1 to 5 and 7 challenging the conviction in Sessions Case No.97 of 1989 dated 7th January, 1995 passed by the Additional Sessions Judge, Kolhapur.

2. By the impugned Judgment and order the present Applicants were held guilty for the offences punishable under sections 147, 148 and 302 read with section 149 of the Indian Penal Code. For the offence punishable under section 147 they were sentenced to suffer rigorous imprisonment for two years and fine of Rs.500 and in default to suffer further rigorous imprisonment for three months and for the offence punishable under section 148, they were sentenced to suffer rigorous imprisonment for two years and fine of Rs.500/- in default to suffer further rigorous imprisonment for three months. For the major offence punishable under section 302 read with section 149 of Indian Penal Code, they were sentenced to undergo imprisonment for life. By the said Judgment and order, Appellants were acquitted of the offences punishable under sections 337 and 324 read with section 149 of Indian Penal Code.

3. In the Sessions Case No.97 of 1989 arising out of the C.R. No.129 of 1988 registered by Murgood Police Station for the offences punishable under sections 147, 148, 304, 324 and 337 read with section 149 of Indian Penal Code in all twenty accused including the present Appellants were arraigned at accused persons.

4. The case of the prosecution and the evidence before the trial Court can be narrated as under :

In the village there were two political groups one of Rajaram Bhosale and another of Tukaram Bhokare and both the groups had practice of installing the statue of Ganesh during the Ganpati festival. Said groups were installing such Ganpati idols in the name of two different mandles i.e. Hanuman Talim Mandal, a party of the complainant and Shivaji Talim Mandal, a party of the accused. The immersion of Ganesh idol of the party of accused took place on the day of Anant Chaturdashi of the year 1988 and on the next day of Anant Chaturdashi there was immersion of the Ganesh idol of Hanuman Talim Mandal of the complainant. In the night at about 8.30 or 9.00 p.m. the procession of Ganesh idol immersion reached near Gram Panchayat in the village. Some person in the procession were playing the folk dance of "Lazim". There was a sort of celebrating atmosphere and various person had participated in the said immersion process. At that time, the accused person gathered near the Gram Panchayat and attacked the procession and started pelting stones on the procession. Due to such sudden commission, the procession was disturbed and the people ran away helter-skelter. The present Appellants were present on the spot armed with axes and sticks. The complainant P.W.1, his father Bandu and uncle Rajaram (Deceased who succumbed to the injuries in the said incident of assault) were present in the procession and they started running towards their houses. Some of the accused started cheesing them. When complainant and deceased came near the house of Balu Sutar in Sutar lane, they were obstructed by some accused person and that they were assaulted by present Appellants and their associates. Axes and sticks were used to assault Rajaram who sustained severe bleeding injuries on various parts of his body and started falling down. Complainant P.W.1 intervened and tried to caught hold on Rajaram, however, he was also beaten by accused persons by means of sticks. Some other person namely Gopal Redeker, Hariba Shinde and also father and the mother of the complainant were also injured in the said riot as they were beaten by the accused. Due to such assault, complainant also received some injuries and fearing greater harm at the hands of the accused he left the spot by living his severely injured uncle Rajaram in the pool of blood. Admittedly, according to his own version, complainant remained at his house for that entire night and did not immediately go to the police station to lodge the complaint. On the next day morning police person arrived on the spot and started enquiring and during which complaint of P.W.1 was recorded and was treated as first information report and C.R. No.121 of 1988 was registered. The dead body of Rajaram was sent for post-mortem after preparing inquest panchaname. Scene of the panchanama was also drawn.

5. During the investigation and finding of involvement of the Appellants, they were arrested by police on 27th September, 1988. On completion of investigation, charge-sheet was filed before the J.M.F.C. Court and case was committed in the Court of Sessions alleging the charges against all the accused including Appellants for the offence punishable under sections 147, 148, 337, 324 and 302 read with section 149 of Indian Penal Code.

6. During the trial, totally 11 witnesses were examined. According to the police, P.W.1 complainant is the injured eye-witness and who is the main star witness and on whose evidence the entire case of the prosecution revolves.

7. It must be mentioned that the substantive evidence of said witness is required to be scrutinized, with care in order to ascertain the involvement of the Appellant accused, while deciding the present Appeal. According to prosecution, there are two other supporting witnesses to the incident of assault and they are P.W.2 Gopal Redekar and P.W.3 Hari Shinde. P.W.4 is also another important witness of the prosecution. The Police Patil who intimate to the police out post at Kapsi on visiting the incident. P.W.5 is Dr.Sawant who conducted postmortem on the dead body of deceased Rajaram and gave his opinion as to the cause of death due to injuries received on his body. Prosecution witness P.W.6 is the panch regarding recovery of article at the instance of accused No.1. According to police and axe is recovered at the instance of accused No.1. P.W. No.7, 8, 9 and 10 are the panch witnesses of different panchnamas. Last prosecution witness is P.W.11 who is the investigating officer.

8. During the arguments, learned counsel Shri. Mundergi for the Applicants submitted that in the complaint P.W.1 had concocted the story and implicated the present Appellants as an after though considering that the relations between the two parties in the said village were strained and there were admittedly criminal cases against the rival groups involving the murder of the member of the groups. It is also submitted that the conduct of P.W.1 in not immediately informing the police coupled with the conduct of P.W.4 then Police Patil also not informing immediately to the police regarding the incident of assault even on finding of the dead body of Rajaram on the spot of the incident on the fateful night, speaks volumes and as such the possibility of falsely taking names of the present Appellants as the assailants, cannot be ruled out. It is further submitted that, apart from version of P.W.1 as alleged eye-witness, there is no other eye witness to the incident of assault much less the evidence of P.Ws.2 and 3. So far as the homicidal death of Rajaram is concerned, there is no reservation expressed on behalf of the Appellant and as such it is only to be ascertained in the present criminal Appeal as to whether the accused persons were the assailants and whether they had committed murder of Rajaram and it is also to be considered whether they were members of an unlawful assembly and were armed with deadly weapons and as such committed rioting. It appears that the substantive evidence of P.W.1 has weighed much with the Sessions Court and which has been accepted for holding the present Appellants accused Nos.1, 2, 5 and 7 guilty for the offences for which they were convicted.

9. It is admitted position and also accepted by the Trial Court that P.Ws.2 and 3 are not aware of the factual situation as to who actually assaulted Rajaram and as such they are not the eye-witnesses to the assault and murder of Rajaram.

10. Now coming to the sole testimony of P.W.1, it must be said that though he is taking the names of accused Nos.1, 2, 5 and 7 as mounting assault on Rajaram with the help of axes, still it is also an admitted position that he did not disclose such incident immediately to the police and according to him after seeing the assault on Rajaram and also after sustaining some injuries on his person, instead getting some help, either medical or police, to the deceased Rajaram he went to his house and waited there till morning so also his father was with him during the incident of assault went to the house and remained at home. In the opinion of this Court, the failure on the part of said P.W.1 who immediately disclose such serious incident and death of his uncle to the police creates a reasonable doubt as to whether he was telling the truth and whether he had subsequently implicated the Appellants as the assailants after pre-determination.

11. In order to come to such conclusion as to having reasonable doubt regarding truthfulness of P.W.1, other circumstance as to substantive evidence of P.W.4 a Police Patil can be looked into. According to P.W.4, after knowing the incident from somebody on the fateful night, he went to the spot of incident and found the dead body of Rajaram lying in pool of blood. It happened sometime during the early hours at about 2.00 a.m. or so. However, though being a Police Patil and holding some responsibility for maintenance of law and order, an intimation to the nearest police station remained to be given till next day morning and he did not disclose the finding of such dead body immediately to the local police station. Apart from such conduct of said P.W.4, the factual position brought on record as to his political affiliation with the party of the complainant is brought on record and this circumstance also creates a reasonable doubt and in that event in our opinion, the benefit of doubt is required to be given in favour of the Appellants accused. It must be mentioned that the learned Trial Court is also accepted that there was strong enmity between the rival groups i.e. the group of the accused persons and the group of the complainant and deceased. In view of such circumstances, the evidence of P.W.1 should have been accepted with much care and caution and also with certain corroboration, which is wanting in the present case.

12. During the arguments, the learned counsel for the Appellants brought to the notice of this Court the vital omissions as to the incident of beating P.W.1 and Rajaram witnessed by other witnesses by name Gopal Redekar, Hariba Shinde, Dinkar Borkar and Ananda Bhakte. For the sake of ready reference substantive evidence of P.W.1 appearing in the notes of evidence in paragraph No.9 can be reproduced as under :

"I do not remember whether the incident of beating to me and Rajaram is witnessed by Gopal Redekar, Hariba Shinde, Dinkar Borkar and Ananda Bhakte. I do not remember whether I stated before the police that all those persons have witnessed the incident of beating to me and my uncle. I cannot tell the reason why this fact is appearing in my complaint."

In our opinion, such contradiction came to be proved through the investigating officer P.W.11 is fatal to the case of the prosecution. In other words, it must be said that apart from said P.W.1 there was no any other eye-witness to the actual incident of assault of Rajaram. However, the names of above mentioned persons do appear in the police statement of said P.W.1 and as such again the reasonable doubt is created as to trustworthiness of P.W.1 and in that event again the benefit of doubt must go in favour of the Appellants.

13. Again the conduct of P.W.1 after the incident and after the death of his uncle Rajaram appears to be unnatural, if it is accepted that he was knowing that the Appellants accused Nos.1 to 5 and 7 were real assailants. The reasoning given by P.W.1 for not immediately lodging any police complaint is due to fear of assault at the hands of accused persons, however, said reason also does not sound to reason and logic when during his cross-examination P.W.1 had admitted that in the night, he was at his house and there were about 24 persons present in his family and the lady members of his family had visited the spot on the night of incident and this fact has been corroborated by P.W.4 the Police Patil. Considering such factual position, it must be said that the reasoning of fear and assault at the hands of the accused for not disclosing the names of the assailants immediately to the police, cannot be accepted and as such the defence on behalf of the Appellants as to their false implication appears to be probable, more so, when the relations between the two groups in the said village were very strained and that there were serious complaints against each other.

14. In view of the above scrutinizing of substantive evidence of P.W.1, in our opinion, the other evidence as to recovery of alleged weapons of assault at the hands of accused No.1 need not be discussed in detailed in as much as especially the guilty as against the Appellants was held established by the Trial Court only on the testimony of P.W.1 and when in our opinion such testimony is not trustworthy, then conviction of the Appellants for the offences for which they are convicted, cannot sustain. It is reported during the arguments that original accused No.2 Appellant No.2 had died during the pendency of the Appeal. His death certificate is produced before us showing the date of death as 25th November, 2007 and nobody came forward to challenge the conviction as against accused No.2, hence, the matter against him stands abated.

15. In view of the above observations, we pass the following order :

:: O R D E R ::

i. The Appeal is allowed.

ii. The conviction and sentence in Sessions Case No.97 of 1989 passed by the Additional Sessions Judge, Kolhapur of Appellant accused No.1 Dnyandeo Dhandiba Jadhav, Accused No.2 Shankar Babu Bhosale, Accused No.5 Shivaji Vishnu Bhokre & Accused No.7 Maruti Joti Arekar for the offences punishable under sections 147, 148, 302, 324 and 337 read with section 149 of Indian Penal Code, is quashed and set aside. The accused be release forthwith, if not required in any other case.

iii. The bail bonds of accused Nos.1, 5 and 7 shall stands cancelled.

iv. Fine amount, if any be returned back to the Appellants.

Appeal allowed.