1 APEAL 43 of 1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.43 OF 1991 1. Kailas Namdeo Patil, Age 22 years 2. Gurunath Chindhu @ Chandrakant Patil 3. Pandharinath Chindhu Patil, age 22 years, 4. Namdeo Nana Patil, age 35 years, All residing at Pimplas, Bhiwandi, District Thane. .....Appellants V/s. The State of Maharashtra, at the instance of Inspector of Police, Shantinagar Police station, Bhiwandi. ..... Respondent Mr.K.S.Patil, for appellant Nos.1 and 3. Mr.Prakash Naik a/w Mr.Ganesh Bhujbal, Mr.Pawan Mali, for appellant Nos.2 and 4. Mrs.A.A.Mane, APP, for the respondent – State. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 01st OCTOBER, 2010 ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) : - 1. This appeal is directed against the judgment and order passed by the 4th Additional Sessions Judge, Thane, dated 24-04-1990 in Sessions case No.170 of 1987. By the impugned judgment and order, the learned Additional Sessions Judge convicted the present appellants under 2 APEAL 43 of 1991 Section 302 read with Section 34 of Indian Penal Code and sentenced for life imprisonment and also directed to pay a fine of Rs.200/- each and in default to suffer simple imprisonment for one month. The appellants/accused are also found guilty for the offence punishable under Section 341 of Indian Penal Code and sentenced to suffer simple imprisonment for 15 days. The accused No.2 is also found guilty for the offences punishable under Section 392 and 397 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for 3 months. Similarly, the accused Nos.1, 3 and 4 have been acquitted of the offences punishable under Section 392 and 397 of Indian Penal Code and the substantive sentences were directed to run concurrently. 2. The facts and circumstances giving rise to this appeal are that on 22-12-1986 at about 10.30 p.m., on the foot road towards the field of Rama Chango Bhoir, the accused Nos.1 to 4 in furtherance of their common intention, wrongfully restrained the complainant Prakash Gulam Mhatre and his brother Jagan, who were proceeding to their house and the accused Nos.1 to 4 in furtherance of their common intention, committed the murder of Jagan. It is the case of the prosecution that the accused have committed robbery of gold chain belonging to deceased Jagan, and they used deadly weapons at the time of committing the said 3 APEAL 43 of 1991 act of robbery. 3. The accused Nos.1 to 4 as well as the complainant Prakash and his brother Jagan, were residing at Village Pimplas. Accused Nos.2 and 3 are the real brothers and accused No.4 is the uncle of accused Nos.2 and 3 and accused No.1 is the son of accused No.4. It is the case of the prosecution that about 10-15 days prior to the present incident, a bicycle belonging to complainant’s family was found to be stolen. The said bicycle was subsequently seen in possession of accused No.2 by complainant Prakash and deceased Jagan and therefore, altercations had taken place between the complainant, Jagan and accused No.2. Since then, the relationship between the accused persons with the complainant Prakash and Jagan, became strained. 4. The case of the prosecution is that the complainant and deceased Jagan, were dealing in the business of sand and that on 22-12-1986, the complainant along with his brother, Jagan, had gone to Bhiwani for recovering certain dues in connection with the sale of sand. They came back from Bhiwandi at about 7.45 p.m. to 8.00 p.m., travelled by rikshaw upto Temghar Pipe Line and thereafter, had snacks in the hotel situated there and then proceeded towards their Village Pimplas by foot road from Saiaba temple at about 8.15 p.m. It is the case of the prosecution that when they reached near the water tank at about 9.00 to 4 APEAL 43 of 1991 9.30 p.m., the accused Nos.1 to 4 came there. The accused Nos.3 and 4 caught hold the complainant Prakash, while accused Nos.1 and 2 inflicted knife blows on the abdomen of Jagan and snatched away the gold chain worn by Jagan. The complainant thereafter, screamed for help. The accused ran away from the scene of incident with the golden chain of Jagan. As a result of the said injuries, Jagan fell down. Complainant Prakash rushed to his home and narrated the incident to his brothers. The complainant, thereafter, accompanied by his brothers and villagers, came to the spot and found that Jagan was already dead. Subsequently, a complaint was filed at Shanti Nagar Police Station, which is at Exh.23. 5. On the basis of the said complaint, offence was registered under C.R.No.216 of 1986 by PSI Shirsat at the said police station. Subsequently, inquest panchanama was made vide Exh.28. The deadbody of the deceased Jagan was sent to Indira Gandhi Memorial Hospital, Bhiwandi, for post mortem. On 23-12-1986, Investigating Officer went to the scene of occurrence and drew spot panchanama vide Exh.29. Attempts were made to arrest the accused, but they were untraceable till 26-12-1986. Subsequently, on 27-12-1986 the Investigating Officer handed over the investigation to Crime Branch, Thane. The PSI of Crime Branch thereafter, arrested accused No.1 and seized the clothes (Articles 9 & 10) stained with blood on his person vide seizure Panchanama Exh.40. 5 APEAL 43 of 1991 A knife stained with blood, was also recovered at the instance of accused No.1. On 27-12-1986, accused Nos.2 and 3 came to be arrested, while accused No.4 was arrested on 29-12-1986. The golden chain belonging to deceased Jagan, was recovered on 30-12-1986 on the basis of the information given by accused No.2, under the seizure panchanama vide Exh.43. The incriminating articles were sent to Chemical Analyzer vide letter Exh.53. After completion of investigation, chargesheet was filed in the Court of Judicial Magistrate, First Class, on 07-02-1987. The learned Magistrate committed the case to the Court of Sessions, for trial. 6. On 14-01-1988, the learned Additional Sessions Judge, Thane, framed charges against the accused. The accused did not plead guilty to the charges levelled against them. During the trial, the prosecution has examined 11 witnesses. On the basis of evidence adduced on record, the learned Sessions Judge recorded the conviction order, as aforestated. It is the aforesaid order of the learned Sessions Judge, which is impugned at the instance of the appellants/accused. 7. The learned counsel for the appellants/accused vehemently submitted that the prosecution has failed to establish its case beyond reasonable doubt for the reason that Mr.Prakash Gulab Mhatre (P.W.1) can be said to be an interested witness, as he is the real brother of the deceased. It is also submitted by the learned counsel for the appellants 6 APEAL 43 of 1991 that at the place of incident, there was no electricity and the incident which took place at about 8.00 Clock at night and therefore, it is not possible to believe that the complainant (P.W.1) has witnessed the incident which has occurred. The learned counsel for the appellants stoutly submitted that the trial court disbelieved the recovery panchanama of golden chain, which is alleged to have been robbed by the accused. He further submitted that only a single blow was inflicted to the deceased and as against that, as per the evidence of the Doctor, there were four knife blows found on the dead body of the deceased while conducting the post- mortem examination of the deceased. The learned counsel for the appellants strenuously contended that from the evidence of the prosecution witnesses, it cannot be said that two knife blows were given to the deceased, when only one knife was recovered. He further submitted that the blood report is also not conclusive. It is further submitted that since other independent witnesses have not supported the case of the prosecution, the benefit of doubt is required to be given to the appellants/accused. 8. The learned APP for the respondent – State, on the other hand, supported the judgment recorded by the learned Sessions Judge. She vehemently submitted that Mr.Prakash Gulab Mhatre (P.W.1) was present at the time of incident and was an eye-witness to the incident and 7 APEAL 43 of 1991 there is no reason to falsely implicate the accused, especially when he lost his brother. It is submitted by her that since in the past, the complainant and his brother Chandrakant Mhatre (P.W.5) ventilated their grievance to the accused regarding theft of bicycle and as they saw the bicycle with them which is stolen, ultimately the present accused committed the aforesaid offences of robbery and murder. It is also submitted by her that simply because Prakash Gulab Mhatre (P.W.1) is the relative of the deceased, on that ground his evidence cannot be discarded if it is otherwise, found to be trustworthy. Learned APP has relied upon medical evidence as well as the recovery panchanama, to substantiate her case. 9. We have heard the learned counsel for the appellants and the learned APP for the State and have perused the record and proceedings and also gone through the evidence adduced on behalf of the prosecution. 10. The prosecution has examined the complainant Mr.Prakash Gulab Mhatre (P.W.1). The said witness has stated that he is dealing in the business of sand and that they were in all five brothers, including himself, Chandrakant, Gurunath, Jagannath and Harichandra. He categorically stated that he knew the accused persons and they hail from the same village. Mr.Prakash Mhatre (P.W.1) further stated that prior to 10 to 15 days of the incident in question, there was a theft of their bicycle and 4 to 8 APEAL 43 of 1991 5 days prior to the incident in question, the said bicycle was seen in possession of accused No.2. He has his brother told accused No.2 that the bicycle is belonging to them. At that time, some exchange of words took place between them. Since then, the relationship between them were strained. The said witness further stated that the accused Nos.1 to 4 are related with each other. 11. The said witness has further stated in his evidence that on 22-12-1986 at about 4.00 p.m., he and the deceased had left the house and had gone to Bhiwandi to recover the amount of sand. They reached Bhiwandi at 5.30 p.m. and returned back to Temghar by rickshaw at about 8.15 p.m. The said witness categorically stated that they took snacks in a hotel at Temghar pipeline. When they proceeding to their Village by foot road, at about 9.30 p.m., they reached the place near water tank, at that time, accused Nos.1 and 2 came from opposite direction and accused Nos.3 and 4 came from left and right side and caught hold him. He further stated that accused No.2 Gurunath, inflicted knife blow on the abdomen of Jagan. Accused No.1 also inflicted knife blow on the abdomen of his brother. The accused No.2 snatched away the golden chain of his brother and they ran away with the golden chain along with the knife. The said witness further deposed that thereafter, he rushed to his house and informed the other brothers about the incident. Thereafter, 9 APEAL 43 of 1991 he along with his brothers, accompanied by some villagers, had returned back to the spot of incident and found that the Jagan was found unconscious. Then Jagan was taken to home and was found dead. A complaint was thereafter, lodged vide Exh.33. The said witness has also identified golden chain during the examination-in-chief and had also identified the knife in question. The said witness also identified all the accused. 12. In the cross-examination, the said witness admitted that there is no electric light on the foot way. The witness volunteers that their village is situated on the hill and there are electric poles on the road. He further admitted that regarding the theft of bicycle, no complaint was filed. The said witness admitted that they were busy in their business and it was not possible for them to lodge a complaint. In the cross- examination, he stated that the incident of assault continued for about 5 to 10 minutes. He further stated that after inflicting the knife blow to Jagan, the accused ran away and subsequently, he went to his house. 13. The prosecution has also examined Baban Jana Patil (P.W. 2). The said witness was examined in order to prove that he was present at the time of incident. But the said witness has not supported the prosecution case and was declared hostile. 14. Another witness Pradip Sakharam Choudhary (P.W.3) had 10 APEAL 43 of 1991 also not supported the case of the prosecution and was declared hostile. Similar is the position regarding witness No.4 Vithoba Babunath Patil. 15. The prosecution has examined Chandrakant Gulab Mhatre (P.W.5), brother of the deceased, to prove its case. He has stated in his examination-in-chief that 10 to 15 days prior to his death of Jagan, there was a theft of bicycle and that his brother had seen the bicycle with accused No.2. The said witness stated that he was informed by his brother about the incident in question when he was at home. He stated that at about 7 to 7.30 p.m., on the relevant day, when he had gone to his shop, his son Shubhash told him that accused No.1 and Pradip Choudhary (P.W.3) had came to inquire about Jagan. Thereafter, he returned back to his home. On enquiry, he was told that Jagan and Prakash had not returned from Bhiwandi. He further stated that at about 9 to 9.40 p.m., Prakash (P.W.1) came running and told him that accused Nos.1 to 4 assaulted Jagan and was lying near water tank. 16. In the cross-examination, he admitted that he did not lodge a complaint of theft of bicycle, as it was a old bicycle. Nothing further is brought in his cross-examination so as to disbelieve his version. 17. The prosecution further examined Shankar Dattatraya Shinde (P.W.7) and Mohamad Kasim Mohamad Basir (P.W.9), who were the panch witnesses for recovery of cloths of accused No.1 as well as 11 APEAL 43 of 1991 golden chain and knife. 18. The prosecution has also examined Babasaheb Dhanaji Sorte, Doctor (P.W.8). The said witness has described the injuries and conducted the post-mortem of the deceased. He has stated in the deposition that injury Nos.1 to 5 can be caused by five different blows . These injuries were sufficient in the ordinary course of nature to cause the death and can be caused by sharp instrument and is possible by knife (Article 9). He further deposed that the deceased might have consumed food 1 and half to two hours prior to his death. The said witness further deposed that external injury Nos.5 and 6 can be caused in struggle. 19. Considering the evidence on record, in our view, there is absolutely no reason to discard the most natural version given by Prakash Mhatre (P.W.1), who was present at the relevant time at the scene. It is not in dispute that prior to the incident in question, there was some exchange of words between the one side of complainant and the accused, on the other hand. Mr.Chandrakant Gulab Mhatre (P.W.5) in his evidence clearly stated that at about 7 to 7.30 p.m., on the fateful day, he was told by his son that accused No.1 and Pradip Choudhary (P.W.3) had came to inquire about Jagan. Ultimately, at about 9.30 p.m., on the very day, the incident in question happened. From the evidence on record, it is explicitly clear that all the accused went with full preparations and with 12 APEAL 43 of 1991 common intention to commit robbery and in the process of committing robbery, committed the murder of deceased Jagan. Simply because Prakash Gulab Mhatre (P.W.1) is a brother of deceased, it cannot be said that he has given false version or that independent corroboration is necessary. Other witnesses have become hostile and not supported the prosecution. On scrutinizing the evidence of P.W.1, in our view, he has given absolutely correct version and his testimony is not shaken in any way in the cross-examination. Even as per the testimony of Dr.Babasaheb D. Sorte (P.W.8), the deceased had taken food one and half to two hours prior to his death. The said fact is corroborated by the version of Mr.Prakash Gulab Mhatre (P.W.1) that they had taken a snacks at a particular place. Subsequently, the golden chain was also recovered at the instance of accused No.2. Though the learned Sessions Judge held that there is no satisfactory evidence on record as to the alleged discovery of knife (Article 9), yet in our view, there is sufficient evidence on record for coming to the conclusion that the accused are guilty of the aforesaid acts and they have committed the offences in question beyond reasonable doubt. It is also not in dispute that the knife was recovered from the possession of accused No.1. It is required to be noted that after the incident for about 4 to 5 days, the accused were absconding, though the said aspect itself may not be relevant for establishing the guilt of the 13 APEAL 43 of 1991 accused, but the said fact is required to be considered in the light of the evidence on record and other attendant circumstances of the case. The relevant observations of the learned Sessions Judge, read as under : - “47. As seen above, P.S.I. Sawant (P.W.11) of Crime Branch, Thane, has testified that after registering the offence in question and knowing the names of the assailants from the complainant, he had visited the spot on 30-12-1986 and started tracing the accused persons. According to him, on 26-12-1986 accused No.1 Kailas was found at 4.00 p.m., at Village Kon. P.S.I.Pawar (P.W.10) who has taken over the investigation, asserts on oath that though efforts were made to trace the accused, the accused were not traced till 26-12-2986. On 27th he handed over the investigation to Crime Branch, Thane. Then accused Nos.2 and 3 came to be arrested on 27-12-1986, while accused No.4 was arrested on 29-12-1986. Thus, the prosecution evidence shows that despite of efforts made to trace the accused since 23-12-1986, they were not available at least till 26-12-1986, when the accused No.1 came to be arrested first. In their statement under Section 313 of Criminal Procedure Code, they simply denied that they were not traced till 26-12-1986. But no explanation about their absence has been given. Thus, there is substance in prosecution evidence that they were absconding for 3-4 days since the episode in question. Of course, one may remain away under the fear of the arrest and he may try to escape from the clutches of the investigating machinery, on account of apprehension of torture or harassment at the hands of said machinery. Hence, that itself alone cannot be an indication of mens rea or guilty mind. This can be taken only as an added factor, but no much importance can be given to the said aspect. 48. Thus, the direct evidence of complainant Prakash found corroborated by medical evidence and other circumstances. The evidence including motive, finding of human blood of the deceased Jagan on the clothes seized from the person of accused No.1 Kailas, and their absence from the village for 2-3 days etc. The cumulative effect of 14 APEAL 43 of 1991 this evidence has established beyond shadow of doubt that it is none else, but accused Nos.1 to 4, who are responsible for wrongful restraining of complainant Prakash and Jagan as well as for murder of victim Jagan and for theft of golden chain belongs to deceased Jagan by accused No.2. 49. Even the circumstantial evidence as to finding of blood stains of the group of deceased jagan on the clothes of accused No1, the motive their absence from the village, etc., is excluded, still the direct evidence of eye witness complainant Prakash, is more than sufficient to bring home the guilt of the accused persons. Thus, the prosecution has established beyond reasonable doubt that the accused Nos. 1 to 4 for the furtherance of their common intention had wrongfully restrained both complainant Prakash and deceased Jagan, from proceeding to their house, for the furtherance of their common intention, they had committed murder of Jagan. It is also established that the accused No.2 robbed gold chain of Jagan and used deadly weapon while snatching away gold chain belongs to victim Jagan. Thus the accused Nos.1 to 4 are found guilty for the offence punishable under Section 341, 302 read with 34 of the Indian Penal Code. The accused No.2 is also found guilty for the offence punishable under Section 392 read with 397 of Indian Penal Code. 20. Considering the evidence on record, in our view, there is no reason to discard the evidence of Prakash Gulab Mhatre (P.W.1), whose testimony is in unison with the testimony of Chandrakant Gulab Mhatre (P.W.5), who has given description about the alleged motive on the part of the accused for the offences in question. Considering the fact that Chandrakant Mhatre (P.W.5) was informed by his son that at about 7 to 7.30 p.m., the accused was asking about the whereabouts of Jagan, 15 APEAL 43 of 1991 coupled with the fact that the stolen golden chain was also recovered from the accused persons and the accused were absconding for a considerable period, in our view, the learned Sessions Judge, has rightly convicted the appellants/accused for the offences in question. In our view, the prosecution has established its case beyond reasonable doubt and we see no infirmity in the order of the learned Sessions Judge in recording the order of conviction. Accordingly, we do not find any merit in the appeal and it is accordingly dismissed. The order of conviction and sentence passed in Sessions Case No.170 of 1987 by the learned 4th Additional Sessions Judge at Thane, on 24/04/1990 is hereby confirmed. The bail granted to the appellants/accused are hereby cancelled and they shall be taken in custody forthwith to undergo the balance sentence. Set off under Section 428 of Cr.P.C., if any, shall be available to the accused. 21. The learned counsel for the appellants requested for some time for surrendering. Eight weeks time is granted by which the appellants/accused shall surrender to the concerned police station to suffer balance sentence. ( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )