1 Cri. Appeal 228. 2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 228 OF 2003 Nagnath S/o Manikrao Kusnure, aged : 35 years, Occupation: Agriculturist, R/o Shevdi (Ba) Taluka Loha, District Nanded ... Appellant (Orig. Accused) V E R S U S The State of Maharashtra (Copy served on the Public Prosecutor, High Court, Bench at Aurangabad) ... Respondent ... Mr. Vijay Sharma, Advocate for Appellant. Mr. V.D. Sapkal, Special Public Prosecutor for respondent- State. ... CORAM : P.V.HARDAS AND A.V.NIRGUDE, JJ. DATE OF RESERVING THE JUDGMENT : 5TH DECEMBER, 2009 DATE OF PRONOUNCING THE JUDGMENT : 10TH DECEMBER, 2009 JUDGMENT (PER A.V. NIRGUDE, J.) 1] This appeal is filed against the judgment and order dated 28.2.2003 in Sessions case no. 137 of 2002 (which arose from crime No.37of 1997) passed by the learned Additional Sessions Judge, Nanded convicting the appellant under section 147, 2 Cri. Appeal 228. 2003 148, 302 r/w 149 of the Indian Penal Code and sentencing him for imprisonment for life and fine of Rs.10,000/- with default stipulation of further R.I. for one year (no separate sentences were awarded for the offences punishable under section 147, 148 of the Indian Penal Code). 2] Before I narrate the facts leading to the prosecution, it must be noted that in the crime no. 37 of 1997, the Police initially arrested more than 20 accused and they were charge-sheeted for the offences punishable under section 147, 148, 302 r/w. 149 of the Indian Penal Code. The present appellant was also named as an accused in that case but was shown absconding. He was arrested on 16.9.2002 by which time the Sessions case filed against the other accused had come to an end. 3] The facts leading to the incident are as follows:- . One of the accused in this case Ramrao was Sarpanch of village Shevdi Bajirao, Tq. Kandhar Dist. Nanded for quite some time. Ultimately he was defeated in the election that took place sometime in 1994 and complainant Kailash and his party won that election. The complainant’s party then made several complaints against Ramrao about his "mis-deeds" as the Sarpanch of the village. This resulted into 3 Cri. Appeal 228. 2003 enmity between the two groups. The complainant Kailash Dhonde and his friends would be referred to as 'Dhonde party' and Ramrao Potphale and his friends would be referred to as 'Potphale party' in this judgment. . On 1.7.1997 in morning hours, the complainant Kailash’s father Babarao (age about 70 years) left his house for his cattle-shed to feed the cattle. At about 9:00 am. witnesses heard noise of quarrel. The witnesses saw the appellant and members of Potphale party with weapons like swords, axes, sticks and stones in their hands running towards Babarao who was caught unaware of the assault. Babarao turned around and ran towards the village and entered the courtyard of a house by name Chikalewada. Chikalewada consisted of a large courtyard and three residential quarters belonging to three Chikale brothers. The appellant and his companions of Potphale party followed Babarao in the courtyard of Chikalewada. They launched attack on him with the help of weapons and killed him on the spot. The prosecution witnesses tried to intervene and save Babarao but in vein. Some witnesses sustained minor injuries when they tried to intervene. The assailants thereafter left Babarao and ran away. In the due course of time, the Police arrived and recorded complainant Kailash’s statement, which was treated as F.I.R. The investigation proceeded further. As said above, out of 33 assailants 4 Cri. Appeal 228. 2003 named by the prosecution witnesses, 27 were initially arrested. 4] Before I discuss this case further, it is necessary to mention that one of the other accused in this case namely Ramrao Potphale, the leader of Potphale party, was brought to Sonkhed Police Station at 9:15 am. by his son Tanaji in a jeep. He was in seriously injured condition then. He had sustained number of incised wounds all over his body. The Police Station Officer of Sonkhed Police station took entry of this event in the station diary and sent a Police Constable with the injured to the hospital. It is pertinent to note that at that time, the Police did not record statement of either Ramrao or his son Tanaji. Soon thereafter, Ramrao was admitted to Civil Hospital, Nanded and his treatment started. During the same day, other accused in this case one Rajaram (belonging to Potphale party) was also admitted to the Civil Hospital, Nanded with several incised injuries on his person. At about 6.00 pm. on that day, Rajaram lodged his report, saying that while he was with Ramrao, Babarao Dhonde, his son Kailash and members of Dhonde party had assaulted them with a view to commit their murder. The Police registered offence at crime no. 37 of 1997 and none other than the prosecution witness no.12 P.S.I. Mairal investigated the said case. The prosecution 5 Cri. Appeal 228. 2003 witness no.1 Kailash the complainant and his other companions belonging to Dhonde party were tried in a Sessions case. 5] As said above, after the appellant was arrested on 16.9.2002 a supplementary charge-sheet was filed against him. Eventually the appellant was committed to the Court of Sessions. As said above, Sessions case no. 137 of 2002 was then conducted in the Court of learned Adhoc Additional Sessions Judge at Nanded. The prosecution case rests on the evidence of 15 witnesses. P.W. no.1 (Kailash, the first informant), P.W. no.3 (Pandurang), P.W. 4 (Ahilyabai), P.W. 5 (Shankar), P.W. 8 (Kisan) and P.W. 11 (Shivkanta) recorded their deposition as eye witnesses. As mentioned above, P.W.1 Kailash the complainant claimed that hearing the alarm and noise, he went to Chikalewada and saw the assault on his father. P.W. 2 Mohan said he saw the assailants chasing Babarao towards Chikalewada and went to inform this fact to P.W. 11 Shivkanta, the married daughter of victim Babarao. P.W. 3 Pandurang, P.W. 4 Ahilyabai, P.W.8 Kisan and P.W. 11 Shivkanta claimed that they actually saw the assault and named the assailants, giving details of the incident. P.W. 5 Shankar said he saw the appellant and other assailants belonging to Potphale party leaving after the incident with blood stained weapons in their hands. There is no 6 Cri. Appeal 228. 2003 dispute between the parties before the Court about the homicidal death of Babarao which was proved by prosecution witness no.7 Dr. Kanote (P.M. Notes exhibit 33) and the spot of occurrence which was described in the panchanama exhibit 30 which was proved by P.W. 6. Dr. Sunil Gaikwad the Medical Officer of Rural Hospital of Loha who was examined as P.W. 11 stated he clinically examined P.W. 4 Shivkanta and Ahilyabai on that day and found them in injured condition. He issued certificate exhibit nos. 36 and 37. The P.W. 15 Bapurao Dabhanwad, Police Head Constable was P.S.O. of the Sonkhed Police Station on that day during 8.00 am. to 2.00 pm., who said that he recorded a particular station diary entry no. 15 at about 9:15 am. on that day about one of the accused Ramrao being taken to the Police station in injured condition in a private jeep by his son Tanaji. (This station diary entry would prove to be a pivotal incident in the entire incident and I would discuss it at appropriate place in the judgment.) P.W. 13 is Police Constable and P.W. 14 is Assistant Police Inspector Vishwanath Shejul who had effected arrest of the appellant on 16.9.2002. The learned Judge of the trial Court held that the prosecution had proved it’s case against the appellant beyond reasonable doubt and as said above, the appellant was convicted and sentenced as the aforesaid. 7 Cri. Appeal 228. 2003 6] After having heard the submissions of the learned counsel appearing for the parties and after going through the record of the case, following point would arise for our consideration:- (i). Whether the prosecution witnesses who claim to be eye witnesses, are believable and trust-worthy? 7] In order to examine as to whether the prosecution witnesses are truthful, we must give the details of their deposition. . P.W. 1 Kailash described the incident as under:- He said, on that day he was at home at about 8.00 – 8:30 am. His father Babarao went towards their cattle-shed, which he said, was at some distance from his house near S.T. Bus stand. He said, at about 8:30 to 9:00 am. he heard commotion from the direction of Chikalewada. He said, he went towards Chikalewada and saw the assailants and their victim, his father. He then named 26 persons as the assailants and one of them was the appellant. He then said that all the assailants were armed with weapons like sword, katti, axe, katha and lathis. He said he saw particular weapons in the hands of 8 particular assailants and he said the remaining assailants were armed with weapons like axes, swords, sticks, kathis. He said when he saw the assailants attacking his father he raised shouts. Hearing 8 Cri. Appeal 228. 2003 them, one of the assailants asked others to catch him. He said sensing danger he rushed into the house of one Manika Chikale and closed the door. He said he remained inside the said house for about ½ hour. He said he came out only after the assailants had left. What is pertinent to note in his statement is that though he named the appellant as one of the assailants, initially he did not ascribe a specific weapon in his hand nor he ascribed any specific role to the appellant. But this witness is quite certain about the presence of accused Ramrao and his son Tanaji having weapons in their hands such as Kathi and sword respectively. However, at the fag end of his examination in chief he stated that the appellant might have had a katta in his hand at the time of incident but he also added that he did not exactly remember it then. . Next prosecution witness is P.W. 2 Mohan. This witness recorded his age as 20 in 2003, which means that he was merely 13-14 years old boy in 1997 when the incident took place. He named few of the assailants but named the appellant as one of them. He said on that day at about 8:00 to 8:30 am., he was standing on the road in front of his house in Chikalewada when he saw victim Babarao going away from Chikalewada. He then said that the appellant and other members of Potphale party came armed with sticks, axes, swords, Kathi, stones chasing towards victim Babarao. He said, 9 Cri. Appeal 228. 2003 seeing them Babarao turned around and seeing this, he said, he went running towards Babarao’s house and informed this incident to Babarao’s daughter Shivkanta P.W. 11. He said Shivkanta then rushed towards Chikalewada. He said he then went in the village and returned to Chikalewada only after one hour to see the dead body of Babarao lying in the courtyard of Chikalewada. P.W.3 Pandurang Chikale said that on that day, at the time of the incident he was sitting in Chikalewada alongwith his mother, father and cousin Parvatibai. He said Babarao came running to Chikalewada and his assailants chased him. He then named the assailants. He also named the appellant as one of them. He said, the assailants were armed with axes, stones, lathi, swords. He then said, he saw accused Ramrao Potphale striking a blow of kathi on the back of victim Babarao. He said accused Tanaji delivered a sword blow on the stomach and legs of Babarao. He added that other accused Maruti Potphale also delivered sword blow on the person of Babarao. He mentioned about few other accused using different weapons and delivering blows on the person of Babarao. He then added that the appellant Nagnath was armed with a weapon by name Katha. He explained that this weapon is used for cutting sugar-cane. He said appellant Nagnath delivered one blow of katha on the person of Babarao. He said while this was going on Shivkanta P.W. 11 10 Cri. Appeal 228. 2003 daughter of Babarao came there. She tried to rescue Babarao by throwing herself on the person of Babarao. He said she was raising alarm calling for help etc. He said P.W. 4 Ahilyabai and Sumanbai also followed and they tried to cover Babarao from being assaulted. P.W. 4 Ahilyabai is a grown up daughter of victim Babarao. She said on that day at about 8:30 am., she was present in her house when a boy informed her that her father was being assaulted by Ramrao Potphale and his party. She said she started running towards Chikalewada when she heard loud cries of alarm, she said she rushed towards Chikalewada and saw P.W. 11 Shivkanta and her mother Radhabai and her sister in law Sumanbai trying to save victim Babarao from being assaulted. She said the assailants removed these three women from the person of the victim and continued their assault. She said she too tried to save her father from being assaulted but in vein. She said in the melee she sustained injury of stone on her chest and she fell down. She named few of the assailants including the appellant. She said appellant Nagnath was armed with weapon Katha but she did not assign any specific role to the appellant in the assault. 8] P.W. 8 Kishan said that on the day of incident at about 8:30 to about 8:45 am., he was walking with one Maruti towards certain shop for 11 Cri. Appeal 228. 2003 purchasing seeds. He said at that time he saw Ramrao Potphale and members of his party including the present appellant armed with weapons-swords, kathi, katta, axes, sticks, stones and bricks. He said they were shouting and chasing Babarao. He said he saw Babarao turning around and running towards Chikalewada. He said he saw the assailants chasing Babarao upto Chikalewada. He said he saw the appellant beating the victim Babarao amongst other assailants. He said the appellant was armed with Katta. He said the assailants who were armed with weapons inflicted extensive injuries to victim Babarao, though he does not specifically ascribe a specific role to the appellant. He then added that while this was going on, Prosecution witnesses Radhabai, Shivkanta, Parvatibai, Mathurabai, Ahilyabai came and tried to save Babarao etc. 9] P.W. 11 is Shivkanta, the daughter of victim Babarao. She said on that day she was at the house of her father Babarao. She said she, her mother Radhabai, her sister in law Sumanbai were present in the house. She said at that time a boy named Mohan came running to their house and told them that Ramrao Potphale and his party were chasing his father with weapons in their hands. She said hearing this, she raised alarm and called her mother and others. She said she started running towards Chikalewada from where she heard 12 Cri. Appeal 228. 2003 cries for help. She said as she reached Chikalewada she saw Ramrao Potphale and other assailants including the appellant assaulting her father. She specifically mentioned that she saw Ramrao Potphale hitting her father with Katti. She said she saw weapons in the hands of the assailants such as swords, axes, sticks, kathi, katta and stones. She also added that she saw appellant Nagnath giving blow on the person of her father by katha. She ascribed various weapons and roles to various other assailants. She said she threw herself on the person of her father who was lying unconscious due to injuries and requested the assailants not to hit her father. She said accused Maruti removed her from the person of her father and threw her aside. She also said that in the meantime accused Babu hit her on her right hand finger with sword due to which she sustained bleeding injury on her right hand ring finger and index finger. She said her mother and others reached the spot and soon thereafter, tried to save her father but in vein. She said the assailants inflicted number of injuries on the person of her father due to which he died on the spot. The learned Advocate appearing for the appellant quite strongly tried to impress upon us that P.W.11 Shivkanta could not have been present when the incident took place. It was brought on record that this young woman was married about 1 13 Cri. Appeal 228. 2003 month prior to the incident and had gone to stay with her husband at a different village. So, she could not have been present in the house of deceased Babarao at the time of incident. It is also suggested that hearing the news of death of her father she probably rushed to village Shevdi in the afternoon and the prosecution arrayed her as eye witness. The hurdle in this theory is the fact that this witness had sustained injuries on her palm and she said that she sustained these injuries during the incident when she tried to protect her father from being assaulted with sword. She thus suggested that the injuries on her hand were caused by the swords used by the assailants. The defence also tried to suggest that this witness apparently went on her own to the Medical Officer for getting examined and treatment for her wounds. It is suggested that this witness went to the Medical Officer directly from her village before coming to village Shevdi. However, this speculation is not convincing at all for her injuries were not possible except as she described them. 10] P.W. 5 Shankar said that at about 8:30 to 9:00 am. while he was standing near the water post in the village, he saw Ramrao Potphale and members of his party including the present appellant walking towards certain land with weapons in their hand. He said the weapons in their hands were 14 Cri. Appeal 228. 2003 swords, kathi, sticks etc. He said appellant Nagnath was seen armed with katta. He also added that he saw the weapons smeared with blood. At the same time he also heard loud cries from Chikalewada. He said he heard Ramrao and his companion saying to each other that they had destroyed the trunk and that they would now cut off the branches. He then said that sensing danger he went to Chikalewada and saw victim Babarao’s dead body lying in the courtyard of Chikalewada. He also saw several persons near the dead body. 11] Let us now discuss the credibility of the prosecution witnesses in the light of the defence put up by the appellant and other accused and the material that has come on record pursuant to it. The defence of the appellant and the other accused is that on that day at about 7:30 - 8:00 am, accused Ramrao and Rajaram, while they were waiting for a bus to go to Loha at Shevdi bus stand the prosecution witnesses and others launched attack on them. They were severely beaten up. Both of them sustained various injuries. Ramrao's son then took Ramrao in injured condition to the Sonkhed Police Station and at about 9:15 am., the Police Station Officer took an entry in the station diary that Tanaji, the son of accused Ramrao had brought Ramrao in injured condition in a jeep and so the Police 15 Cri. Appeal 228. 2003 Constable Pralhad Ranbir was deputed to take Ramrao to Civil Hospital, Nanded for further treatment. The Police and the accused placed heavy reliance on this station diary entry (exhibit 50) to advance their case, that if accused Ramrao and Rajaram were injured prior to 9:00 am. on that day, there was no possibility for them to participate in the assault on Baburao, which allegedly took place at about 8:30-9:00 am. The other side of the defence of the appellant and the accused is that the prosecution witnesses could not have seen the incident and that they were interested in falsely implicating them. 12] Indeed exhibit 50, the station diary entry no. 15 of 1.7.1997 is of great importance. Prosecution witness no. 15 Police Head Constable Bapurao Dabhanwad proved this entry when he said that on that day he was on duty at Sonkhed Police Station as P.S.O. between 8:00 am. to 2:00 pm. He said at about 9:15 am. Tanaji came to him along with his injured father by a jeep. He said he went towards the jeep and saw the injured person. He said he asked the injured person Ramrao to give his statement. He said Ramrao replied that Ramrao would give his statement afterwards. Thereupon he said he wrote a letter to the Medical Officer for getting Ramrao admitted to hospital. He said he then sent Police Head Constable Pralhad Ranbir alongwith Ramrao to Civil Hospital, Nanded. The 16 Cri. Appeal 228. 2003 entry, if translated in English would read as under:- "At this time, Ramrao Nagoji Potphale resident of Shevdi has been brought in a jeep/car in seriously injured condition. He was reportedly beaten up by the members of Dhonde party. So, Head Constable 1280 who is deputed for this, has departed with the injured in the same jeep to Civil Hospital, Nanded and P.S.I. Mairal and Police Constable 1533, 1407 left for Shevdi in a jeep-car. This information has already been given to Sub Divisional Police Officer, Nanded Rural and Circle Police Inspector, Loha through wireless." 13] In the cross-examination, fortunately some more material has come on record to support the defence of the accused. This witness in cross-examination said that he took decision to immediately sent Ramrao to Hospital because he was seriously injured. He further said that he could not record complaint of injured Ramrao because he was in injured condition. He further added that at that time Tanaji, the son of Ramrao informed him that Ramrao was assaulted by members of Dhonde party. It is thus clear that this document exhibit 50 is an admitted document and the incident that is recorded there is also an admitted fact. The appellant and the accused thus had a long rope to use this incident to their advantage. It has come on record that village Shevdi 17 Cri. Appeal 228. 2003 is at a distance of about 7 km. from Sonkhed Police Station and in a jeep/car one would take about 15 minutes to reach Sonkhed Police Station from village Shevdi. Assuming if Tanaji and Ramrao reached Police Station, Sonkhed exactly at 9:15 am., then they must have left village Shevdi at about 9:00 am. or so. This would also mean that Ramrao sustained injuries due to violent assault with sharp edged weapon sometime prior to 9:00 am. This exactly is the time of the incident which the prosecution alleges in this case. In such situation, the prosecution has to explain as to how accused Ramrao and Rajaram sustained injuries. There is no explanation forthcoming from the prosecution witnesses in their deposition about this aspect of the case. Fleetingly, P.W. 1 during cross-examination said that subsequent to the incident of assault on his father he came to know that the villagers got angry due to the murder of his father and so they assaulted and beat up Ramrao and Rajaram. He said he came to know about this at about 2:00 pm. on that day. This explanation about the injuries on the person of accused Ramrao and Rajaram is not acceptable firstly because whatever the P.W.1 has stated is piece of hearsay and it should not have gone on record at all. P.W. 1 is an important witness not only because he is the first informant, but it is because he is the son of the deceased and belonged to the Dhonde party. Other eye witnesses in this 18 Cri. Appeal 228. 2003 case are not as knowledgeable and vociferous as him. They did not offer any