1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 46 OF 1989 CRIMINAL APPEAL NO. 46 OF 1989 CRIMINAL APPEAL NO. 46 OF 1989 Bhagwan Baliram Tikudave & ors. .. Appellants. vs. The State of Maharashtra .. Respondent. Shri M.S. Mohite for Appellants. Smt. U.V. Kejriwal, APP., for State. CORAM : J.N. PATEL, AND CORAM : J.N. PATEL, AND CORAM : J.N. PATEL, AND SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. SMT. ROSHAN DALVI, JJ. DATE : 4th October, 2006. DATE : 4th October, 2006. DATE : 4th October, 2006. ORAL JUDGEMENT : (Per J.N. Patel, J.) . Heard learned counsel for the parties. 2. The appellants along with other five co-accused were tried on a charge of having committed offences punishable under sections 302, 448, 450, 120(b), read with sections 149, 141, 143, 147, 148 and section 201 read with 149 IPC before the IInd Additional Sessions Judge, Satara in Sessions Case No. 60 of 1986. By a judgment and order dated 13.1.89 the learned trial Court found the appellants (original accused nos. 1 to 5) 2 guilty of having committed offences punishable under section 302 read with section 149 of IPC and each of them were sentenced to undergo imprisonment for life and acquitted them of all other charges whereas original accused nos. 6 to 10 were acquitted of all the charges for which they were tried. By this appeal appellants have challenged their conviction and sentence. 3. Briefly stated the prosecution’s case is that the victim and the accused persons are the residents of village Sonawade, Taluka Patan, District Satara. There are two groups in the village and most of them from the two groups are wrestlers. On the fateful day i.e. 2.5.86 the villagers had gone to a fair at village Wahagao where the wrestlers had gone to participate in the wrestling bout which was to take place in the fair. It appears that for some reason or the other it got postponed. Therefore, the villagers returned to the village in the evening. It is the case of the prosecution that the deceased Devanand, who was a wrestler, after returning from the fair had meals in his house and thereafter went to the house of Jijaba Krishna Patil (PW-13). Along with deceased Devanand, Tanaji (PW-6) had also been to the place of Jijaba. It was somewhere between the night of 2.5.86 and 3.5.86 that the appellants-accused along with their associates attacked the deceased Devanand 3 armed with axes, spears, knives and sticks because of which Tanaji who was sleeping besides him was woken up and he saw persons armed with such weapons assaulting Devanand. Therefore, he called Jijaba (PW-13) who then put on the light and they saw the appellants-accused assaulting Devanand with their respective weapons in their hands and on Tanaji and Jijaba shouting for help they all ran away from the scene of occurrence. On hearing the hue and cry the members from the group of deceased Devanand, Jijaba and Tanaji who were sleeping in the verandha of the school at a distance of about 200 - 300 ft. also came to the scene of occurrence. The father of the deceased Rajaram Pandurang Patil (PW-8) arrived there. He found that Devanand was lying in injured condition and was unable to speak. He along with the help of the witnesses and the villagers, who gathered, took Devanand in a ST Bus with his wife, brother-in-law and Suresh along with some villagers to government hospital at Patan. Though at Patan first aid was given to Devanand, the Medical Officer directed that he should be taken to Karad hospital immediately. Therefore, in the same ST Bus Devanand was taken to Krishna Hospital, Karad. Rajaram Patil, father of the deceased, inquired from the villagers i.e. Tanaji, Jijaba and others as to who have assaulted his son and learnt that the appellants-accused had come armed with sticks spears and axes and assaulted Devanand on his head and 4 shoulder and had ran away. 4. It is the case of the prosecution that the motive for assaulting Devanand is that one Baliram Dnyandeo Tikudave (original accused no. 10) and Tukaram Baliram Tikudave (original accused no. 7) had cut sagwan trees from the agricultural field i.e. survey no. 102 of Patan belonging to Rajaram and Devanand had caught them. At that time one Navnath Dnyandev Tikudave of the village intervened in the quarrel and the matter was settled. On the next day of the said quarrel, Raghunath Dnyandev Tikudave (original accused no. 4), Baliram Dnyandeo Tikudave (original accused no. 10) and others had come with sticks and axes to beat his son Devanand and they had a quarrel which was separated by the villagers, of which complaint was lodged by Devanand at Patan Police Station because of which chapter proceedings came to be initiated against the parties before the Mamlatdar of Patan. 5. It is the prosecution’s case that Devanand expired at Krishna Hospital. His father Rajaram Patil lodged a FIR in Karad Police Station on 3.5.86. On the basis of the said FIR, PSI Balasaheb Sakharam More (PW-15) registered Crime No. 19/85. The police then started investigation in the matter. Spot panchanama (Exhibit-28) came to be prepared. From the spot certain articles and blood stained 5 samples came to be attached. The police conducted inquest panchanama and seized clothes of the deceased Devanand. In the course of investigation, PSI More recorded statement of Jijaba Patil and supplementary statement of complainant Rajaram and search for the accused persons was made. On 4.5.86 police arrested Raghunath (original accused no. 4), Kashinath (original accused no. 3), Gorakh (original accused no. 5) and Navnath (murdered subsequently). The police found that co-accused in the case were not available. On 8.5.86 original accused nos. 1 and 2 i.e. Bhagwan Baliram Tikudave and Bhola @ Khandu Baliram Tikudave came to be arrested. Ramchandra (original accused no. 6) and Tukaram (original accused no. 7) were also arrested vide arrest panchanama (Exhibit-20). Their clothes were seized vide Exhibits 20 and 21. 6. It is the case of the prosecution that at the instance of accused no. 6 Ramchandra, the police were able to seize battery (torch) and two sticks. At the instance of original accused no. 7 Tukaram an axe was seized. Subsequently police arrested other accused persons and seized various articles from them. In the course of investigation documents like post-mortem report, C.A. report and case papers relating to chapter proceedings were collected and charge sheet came to be filed in the Court of JMFC, Patan, against all the accused. 6 7. The appellants-accused were charged for having committed murder of Devanand in furtherance of a conspiracy by constituting an unlawful assembly whose common object was to commit murder of Devanand and were armed with deadly weapons like axes, spears and sticks. The appellants-accused pleaded not guilty and claimed to be tried. The original appellants-accused nos. 1 and 2 also raised, by way of defence, a plea of alibi and examined witnesses in their defence. All the accused persons took a common defence that they have been falsely implicated at the behest of the rival group in the village and have nothing to do with the murder of Devanand. On conclusion of the trial, the Court found the appellants original accused nos. 1 to 5 guilty of having committed murder of Devanand in furtherance of their common object and acquitted remaining accused nos. 6 to 10 of all the charges. 8. It is submitted by Mr. Mohite, the learned counsel appearing for the appellants, that the trial Court has failed to appreciate the evidence on record in its proper perspective and that though there was no eye witness to the incident of assault on Devanand, PW-6 Tanaji and PW-13 Jijaba have falsely claimed to have seen the incident and witnessed the appellants-accused assaulting Devanand. 7 9. Mr. Mohite, the learned counsel appearing for the appellants-accused, submitted that the prosecution’s case rests solely on the evidence of PW-6 Tanaji and PW-13 Jijaba. It is submitted that their evidence is full of contradictions and omissions. It is not consistent in so far as it relates to the incident is concerned and that it is highly improbable that these two witnesses were present at the scene of occurrence when the incident occurred as there is no material brought on record by the prosecution to show their presence. 10. Mr. Mohite, the learned counsel for the appellants-accused, submitted that in so far as original accused no. 1 Bhagwan and original accused no. 2 Bhola are concerned, at the relevant time they were not present in the village and they have been falsely implicated by these two witnesses. Further, all the accused persons in this case were falsely implicated. This is evident from the fact that the Court found the original accused nos. 6 to 10 not guilty of all the charges and acquitted them and only the appellants-accused came to be convicted. Therefore, it is submitted that if the testimony of these two witnesses relating to the complicity of accused nos. 6 to 10 did not inspire confidence, then, the Court ought to have discarded their evidence in so far as the appellants-accused 8 were concerned. It is submitted that this Court can take cognizance of the fact that the appellants-accused and their associates were belonging to rival group and there is likelihood of they having been falsely implicated in the case. Not only this, the star witness in the case, PW-13 Jijaba, has been convicted for having committed murder of Devanand as a person from the group of the accused who rather had no role to play according to the prosecution’s own case in committing murder of Devanand as he only intervened in the quarrel which Devanand had with the other accused persons on the pretext of the other accused persons having felled sagwan trees from the field of Devanand’s father and those accused persons have been acquitted. 11. It is, therefore, submitted that in the absence of any material to show the presence of Tanaji and Jijaba at the scene of offence and the fact that their associates were sleeping at the distance of 200 - 300 ft. from the place where Devanand is alleged to have been assaulted by appellants-accused, it cannot be said that such an incident and the culprits would have gone unnoticed. Mr. Mohite also emphasised on the fact that the prosecution has failed to examine a material witness in the case i.e. one Shankar who, at the relevant time, was sleeping on the attic. 9 12. Mr. Mohite, the learned counsel for the appellants-accused, submitted that in the cross-examination it has been brought on record that Devanand had illicit relations with Jijaba’s wife and the possibility of Jijaba and Tanaji having committed his murder cannot be ruled out and, therefore, this is a fit case where for want of independent evidence it would not be safe to uphold conviction of the appellants-accused and they deserve to be given benefit of doubt. 13. Mrs. Kejriwal, the learned Assistant Public Prosecutor, submitted that the trial Court has appreciated the evidence properly and the judgment clearly indicates that the Court has taken into consideration all the pros and cons and had found that it is safe to rely upon the evidence of Tanaji (PW-6) and Jijaba (PW-13) though there are minor contradictions and omissions which do not materially affect the prosecution’s case. It is submitted that the trial Court rather took a very cautious step in not convicting all the accused persons which shows that in case of accused persons whose names were not disclosed in the first information report, the trial Court has given them benefit of doubt. The learned Assistant Public Prosecutor submitted that acquittal of some of the accused would not be sufficient for rejection of the entire prosecution case. It is common knowledge that there is a tendency on the 10 part of the witnesses to rope in their rivals. It is submitted that though, strictly speaking, Tanaji and Jijaba cannot be said to be interested witnesses, still if it is considered that they belonged to the group of Devanand, there is no reason why they would have falsely implicated the appellants-accused whose names were immediately disclosed to the father of Devanand by these two witnesses when he asked them as to who has assaulted his son. It is submitted that the evidence of these two witnesses stands corroborated by the scene of occurrence, nature of injuries suffered by the victims as established by the medical evidence and were possible with the use of axe, spear and sticks and, therefore, there is no reason to discard the evidence of these witnesses nor their presence can be doubted at the scene of offence. 14. Mrs. Kejriwal, the learned Assistant Public Prosecutor, submitted that the plea of alibi taken by the original accused nos. 1 and 2 Bhagwan and Bhola rather shifts the onus on them to prove that they were not present at the scene of offence. It is submitted that defence witnesses examined by these two persons in support of their case do not, even on probability, go to establish that they were not present in the village at the time of the incident. It is submitted that they may be drivers by profession but nobody has deposed of their 11 presence somewhere else. On the other hand, the eye witnesses, namely, Tanaji and Jijaba, specifically mention their presence along with other appellants-accused and these witnesses clearly implicate all the accused persons. It is submitted that it is not expected of the two eye witnesses to give parrot like evidence and whatever they had deposed before the Court stands well corroborated by the nature of injuries and the weapons used by the appellants-accused, though the weapons have been discovered at the instance of other accused persons. Therefore, it is submitted that the conclusion arrived at by the trial Court that the prosecution has proved the case against the appellants-accused beyond reasonable doubt does not call for any interference and the appeal deserves to be dismissed. 15. In respect of Devanand Rajaram Patil having died an unnatural death which was homicidal in nature, is not much disputed, the prosecution has examined Dr. Lila Madhukar Salunkhe (PW-11) so as to bring on record the nature of injuries suffered by the victim and the cause of his death. Dr. Salunkhe performed autopsy on the dead body of Devanand Rajaram Patil at Cottage Hospital, Karad. His body was received for conducting post mortem from Krishna Charitable Hospital at 2.30 p.m. Dr. Salunkhe on examination found the following 12 injuries. 1. Vertical cut wound 1" behind the rt. ear. extending from musfoid to rt. Parital bone 7" x 1" brain deep. cutting the bone and peristieum in same line. 2. Oblique cut wound from rt. angle of mandible to middle 3rd of sternomustoid. 3" x 1" 2". Cutting carotid vessles. angle of mandible is cut. 3. Cut wound on right cheek, verticle 1/2" below the eye 3" x 1/4" x 1/4". 4. Cut wound on rt. shoulder anteriorily 3" x 1" x 1". 5. C.L.W. over rt. front temporal region 1" x 1/2" x 1/4". 6. Abrasion verticle 2" above the rt. mannary gland. 4" x 1/8" x 1/16". Internal injuries under the scalp. 1. Haemotama over right parital region 3" x 13 3". 2. Haemotama over right occipital parital region 3" x 3". 3. Vertical fracture right temporal and parital 4" x 1/4". 4. Transverse right parital bone 3" x 1/8". Injury to brain:- Subdural heamotama over right hemisphere 4" x 3". Dura cut below the injury No. 1. Brain matter is also cut. Right temporal lobe up to pet- 3" x 1" 2". Injury No. 1 in para No. 17 and CL. No. 3 in para 19 are the same and corresponding to each other." In the opinion of Dr. Salunkhe all the injuries were antemortem. Death was caused within 24 hours. In the opinion of Dr. Salunkhe, cause of death was sycopy due to haemorrhagic shock due to injury no. 1 in Col. No. 17 coupled with the injury in Col 3 para 19 and according to her these injuries were sufficient to cause death in ordinary course of 14 nature. The post mortem report is at Exhibit 22. In cross examination this has almost gone unchallenged except for a suggestion being made that the Injury Nos. 1 and 2 in para 17 must have led to lot of bleeding and spurting of blood which has been excited by the Medical Officer. 16. Dr. Salunkhe was also examined on the point that injury nos. 1 to 4 in Col. No. 17 are possible by axe. Injury Nos. 5 and 6 are possible by hard and blunt object like stick. Therefore, what the prosecution has established is that the victim has suffered multiple injuries with the use of weapons like axe and sticks which were sufficient to cause death in ordinary course of nature and injury no. 1 in Col No. 17 must have led to lot of bleeding and spurting of blood. The cross-examination of the Medical Officer on this aspect is very pertinent in context to the fact that it is the case of the defence that Tanaji (PW-6) who was sleeping just besides Devanand had no blood stains on his clothes or person. We will consider this aspect while dealing with evidence of Tanaji. 17. Before we proceed to examine the evidence by which prosecution claims to have established that it is the appellants-accused who have committed the murder, let us look into the corroborative piece of evidence led by the prosecution particularly which 15 is in the nature of the scene of occurrence and discovery of weapons of assault It is interesting to note that though the prosecution has brought on record the scene of occurrence which is just in front of house of Jijaba (PW-13) and there was blood all over the place from where articles came to be lifted for being sent for forensic examination. This does not help the prosecution to corroborate their eye witnesses i.e. PW-6 Tanaji and PW-13 Jijaba and no recovery of incriminating articles like weapons of assault or blood stained clothes from these assailants makes their participation doubtful. 18. Another aspect which deserves consideration is that though Tanaji (PW-6) and Jijaba (PW-13) speak of various weapons in the hands of appellants-accused at the time of assault, namely appellant-accused no. 1 having an axe, appellant accused no. 3 having a spear and torch (battery), appellant accused no. 4 having an axe and appellant-accused no. 5 having a stick, none of these weapons have been recovered at their instance. The recovery of torch (battery) at the instance of original accused no. 6 and annexed at the instance of original accused no. 7 is concerned, also does not help the prosecution in any manner nor does it help the prosecution in connecting the weapons with the appellants-accused who have been found guilty 16 and convicted by the trial Court. It is a trite law that the statement leading to discovery which amounts to confession is admissible against the maker alone and it is not available against the co-accused and, therefore, the trial Court was right in arriving at a conclusion that the prosecution has failed to prove their case beyond doubt against the co-accused nos. 6 to 10 and acquitted them against which no appeal has been preferred by the State. It also supports the defence plea that the FIR lodged by Rajaram Pandurang Patil (PW-8), the father of the deceased, was with certain deliberations and implicated all the persons from the rival group irrespective of the fact whether they participated in the commission of the offence or not and in their supplementary statements PW-6 Tanaji, PW-8 Rajaram and PW-13 Jijaba implicated the original accused nos. 6 to 10. 19. In order to arrive at a conclusion whether the prosecution has proved their case beyond reasonable doubt against the appellant-accused having committed murder of Devanand, it is required to be assessed solely on the testimony of two eye witnesses i.e. PW-6 Tanaji and PW-13 Jijaba. 20. Let us examine the oral evidence of Tanaji Bandu Tikudave (PW-6) and Jijaba Krishna Patil (PW-13). Tanaji has deposed to the effect 17 that he and the deceased Devanand are wrestlers and used to practice wrestling in village gymnasium and also used to take part in wrestling competitions by visiting various villages. On the day of the incident, there was a wrestling competition at Waghagao, Karad. But as it was not held because of storm and rain, they returned to Shindewadi at about 7.00 p.m. and parted company i.e. Devanand went to his house and he went to his house. It is at about 8.00 p.m. they met at the place where S.T. bus used to halt i.e. in front of Jijaba’s house. At the S.T. bus stand they met other wrestlers who got down from the bus. After they had a talk, he went to the house of Jijaba for sleeping. At that time Devanand had already gone to sleep on a wooden cot i.e. Macha which was laid between front door frame of Jijaba’s house and one Ratan’s house. At that time Jijaba and Balram were sitting in front Varandha of Jijaba. At about 10.00 p.m. he slept in front of Jijaba on a wooden cot. It is about 12 in the night he heard some noise of beating because of which he woke up and saw that some persons were beating Devanand. He got frightened and slowly slipped down from the cot to the east and went near Jijaba where he was sleeping and raised shouts calling ’Anna Anna’. In response to his calls Jijaba got up and switched on the electric button. There was electric light in which he noticed the appellant-accused Bhagwan Bali Tikudave (original 18 accused no. 1), Raghunath Dnyandev Tikudave (original accused no. 4), Kashinath Dnyandev Tikudave (original accused no. 3), Gorakhnath Tikudave (original accused no. 5) and deceased Navnath Dnyandeo Tikudave. According to him, Raghunath was having an axe. Kashinath had a spear and a torch (battery) whereas Gorakhnath had a stick. Bhagwan had an axe and Navnath was holding a stone. They were all beating Devanand in their presence. Thereafter these persons ran away because of the shouts given by him and Jijaba. By this time, wives of Jijaba and Balu came there and joined them in shouting. People gathered from surrounding area. Devanand was lying injured in a pool of blood. It was thereafter that the father and uncle of Devanand by name Raghunath Patil came there. Devanand was lifted from the wooden cot and carried to the S.T. Bus. Rajaram Patil at that time asked him about the incident and the names of persons sleeping there. That time Tanaji told him the name of accused nos. 1, 3, 4, 5 and Navnath. Raghunath returned to the bus and carried Devanand to hospital in S.T. Bus. This witness had identified all the appellants-accused and obviously so because they were from his village. In his cross-examination he has admitted the fact that he did not disclose about the incident to anybody during the time the incident took place and the people had gathered there even after Devanand was taken away. Though in his 19 cross-examination certain contradictions have been brought on record, these are no material contradictions but it does disclose that he was, at the time Devanand was assaulted, sleeping by his side. The material part of the contradiction is that in his statement under Section 161 of the Cr. P. C. he has not deposed to the effect that he actually saw the five accused persons i.e. the appellants-accused assaulting Devanand. But he