:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO. 193 OF 1995 The State of Maharashtra .. Appellant Vs. 1. Prabhakar @ Popat Hindurao Deshmukh 2. Sambhaji Hindurao Deshmukh 3. Appaso Rajaram Deshmukh 4. Mohan Hindurao Deshmukh 5. Shankar Ramchandra Jadhav 6. Pralhad Dattatraya More 7. Mahadeo Shivaji Bhise .. Respondents (Org.Accd.Nos.1 to 7) Mr. R.Y. Mirza, APP for Appellant - State. Respondent No.1 - Original Accused No.1 is reported dead. Mr. S.R. Borulkar with Mr. Vijay Patil for Respondents-Accused. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. Date : March 29 & 30, 2005. Date : March 29 & 30, 2005. Date : March 29 & 30, 2005. ORAL JUDGMENT (Per S.S. Parkar,J.) ORAL JUDGMENT (Per S.S. Parkar,J.) ORAL JUDGMENT (Per S.S. Parkar,J.): 1. This appeal is filed against the order of acquittal of respondents-accused passed by IV Additional Sessions Judge, Satara on 30/1/1995 acquitting all the accused of all the offences, namely, under Sections 302, 307, 326, 325, 324, 323 read with Section 149 of IPC and under Sections 143, 147 and 148 of IPC with which they were charged in Sessions Case No.123 of 1989. :2: 2. Briefly narrated the prosecution case is as follows:- . All the accused as well as the deceased and the complainants are the residents of village Kusur, Taluka Karad. The incident took place on 18/5/1988 between 8 p.m. to 9 p.m. in front of the house of the complainant, in which Shivaji, the son of P.W.12 Ganpat Krishna Deshmukh @ Desai was murdered while P.W.12 Ganpat, his wife Putlabai P.W.13 and his two sons P.W.9 Vilas and P.W.14 Ananda were injured. The accused persons are also related inter se. Accused nos.1,2 and 4 are brothers while accused no.3 is their cousin. Accused no.5 is the servant of accused no.1. Accused nos.6 and 7 are the friends of accused nos.1 to 4. Prior to the incident in question, Grampanchayat Elections were held in the village in which accused no.2 Sambhaji had contested. In that election P.W.12 Ganpat and his sons canvassed against accused no.2 and the members of his panel who were defeated and, therefore, accused no.2 and other accused were holding grudge against P.W.12 Ganpat and members of his family. P.W.12 Ganpat had also lodged N.C. complaint against the accused with the police :3: alleging danger to him from the accused persons. The prosecution has also alleged that accused no.2 Sambhaji was demanding three gunthas of land out of the land belonging to P.W.12 Ganpat and his sons without consideration. The said land is situated in front of the Grampanchayat Office in the said village. P.W.12 Ganpat having refused to give the said land to accused no.2, the latter is said to have borne grudge against Ganpat on that ground also. On the date of the incident at about 6 p.m. in the evening deceased Shivaji was assaulted by accused persons near Jotiba Temple which is near his house. At that time accused persons caught hold of him and tore his banian. P.W. 13 Putlabai, the mother of deceased Shivaji, rushed to that place and brought Shivaji back home. Thereafter on that night when Shivaji was in the courtyard of his house near the cattle-shed, the accused persons who were armed with weapons like sword, axes and sticks assaulted Shivaji. The members of his family i.e. his father P.W.12 and his mother P.W.13 went out to rescue him, but they were also assaulted by the accused persons. At that time another son by name Ananda P.W.14 came there. He was also assaulted by the accused persons. The last person from the family of complainant, who arrived on the scene, was P.W.9 Vilas. He had been to Karad that day. When he :4: returned the assault was going on. He was also assaulted by the accused persons. At that time one Adhikram Kadam, for whom the complainant’s family had worked during previous Grampanchayat Election, came there in his jeep. Seeing him, all the accused persons ran away from the place of incident. In that jeep Adhikram took P.W.12 Ganpat and his son Vilas P.W.9 to Krishna Charitable Hospital at Karad. Both of them being injured seriously were admitted to the hospital and were indoor patients for long time for treatment of the injuries received by them in that incident. P.W.13 Putlabai, the mother of deceased and Ananda P.W.14 had remained in the house as they were not seriously injured. 3. The constable attached to the said hospital went and informed P.S.I. Chougule, the Investigating Officer, at his residence that there was fight in village Kusur and two of the injured persons were brought and admitted to Krishna Charitable Hospital, Karad. The P.S.I. then went to the Karad Police Station and from there went to the said hospital accompanied by other police staff. In the hospital he saw P.W. 9 Vilas and P.W.12 Ganpat admitted in the hospital. P.S.I. recorded the statement of P.W.9 Vilas in the presence of Dr. Kadam who was attending :5: to him. As there was injury on the hand of Vilas, his thumb impression was obtained on his statement, instead of his signature, on which the endorsement of Dr. Kadam was also obtained. That statement is produced at Exh.71 on record on the basis of which crime was registered under C.R. No.150/88 for offences under Sections 143, 147, 148, 149 and 307 of IPC. Thereafter P.S.I. went to village Kusur same night at about 1 a.m. Nobody was found in the house of the complainant, nor the accused were traced. He, therefore, returned to the police station at about 4.30 a.m. By that time P.W.14 Ananda, the brother of the deceased had reached the police station. P.S.I. thereafter again came back to village Kusur along with Ananda and drew spot panchanama which is at Exh.33. From the place of incident blood stained stick and earth smeared with blood so also blood stained stones were attached under spot panchanama. At that time the dead body of Shivaji was found in the bathroom in the cattle shed in front of the house of the deceased. Inquest panchanama was drawn on the dead body which is Exh.27. The dead body was sent for post mortem examination along with constable More P.W. 16. The offence under Section 302 of IPC was also added to the crime after the recovery of dead body of Shivaji. Thereafter the statements of mother of the deceased :6: P.W.13 Putlabai and brother of deceased P.W.14 Ananda were recorded so also of P.W.12 Ganpat, the father of the deceased. Same day, during search of the house of accused nos.1,2 and 4, a bamboo stick (Article 9) having blood stains was found from under the heap of woods just out side the house, which was attached under panchanama Exh.35. On that day complaint was lodged by one Shivaji More, the brother of accused no.6 at Kole outpost which was passed on to Karad Police Station. The crime was registered on the basis of that complaint under C.R. No.151/88. That complaint was filed against P.W.12 and his sons Vilas P.W.9 and Ananda P.W.14 and deceased Shivaji and others for offence of rioting and assault near Jotiba Temple. On 20/5/1988 the blood stained clothes of P.W. 12 Ganpat and P.W. 9 Vilas were attached under seizure panchanamas Exhs. 23 and 24. Though by morning of 19/5/1988 the names of all the accused were disclosed in the statements of the witnesses and the search was made, none of the accused were available for arrest until 26/5/1988. 4. On 26/5/1988 P.S.I. arrested accused no.2 Sambhaji and accused no.3 Appaso in village Tulsan, Taluka Karad. Accused nos.5,6 and 7 surrendered on 1/6/1988. Accused no.1, who had obtained anticipatory :7: bail was formally shown arrested on 7/7/1988. Similarly accused no.4 who had also obtained anticipatory bail was formally shown arrested on 16/7/1988. 5. After his arrest on 26/5/1988, accused no.2 had shown his willingness to produce the axe and sword hidden by him under the Tamarind tree. Accordingly the memorandum of his statement was prepared at Exh.37 and the axe and sword recovered at his instance were attached under panchanama Exh.37-A. The axe is muddemal article no.18 and sword is muddemal article no.19. After accused no.5 Shankar surrendered at the police station on 1/6/1988, he volunteered on 4/6/1988 to produce an axe and a stick hidden by him in his bamboo shrubs. Accordingly memorandum panchanama Exh.40 was drawn and axe muddemal article no.20 and a stick muddemal article no.21 recovered at the instance of accused no.5 were seized under panchanama Exh.40-A. The muddemal articles as well as the clothes of the deceased Shivaji were sent to the office of C.A. for examination and reports were obtained about blood stains found on them. After completion of the investigation, charge-sheet was filed on 3/10/1988 in the court of JMFC, Karad and the case was committed to the Sessions Court. :8: 6. In the Sessions Court charges were framed on 25/2/1994 against all the respondents-accused, who were seven in number, for offences under Sections 143, 147, 148 and under Sections 302, 307, 326, 325, 324, 323 read with Section 149 of IPC. Alternative charges were also framed against all the accused persons for offences under Sections 302, 307, 326, 325, 324 and 323 read with Section 34 of IPC. Thus 15 charges were framed against all the respondents-accused vide Exh.9. All the accused pleaded not guilty to the charges and, therefore, prosecution examined 17 witnesses to substantiate the charges levelled against the accused. The injured eye witnesses are P.W.9 Vilas, the brother of deceased, P.W.12 Ganpat, the father of the deceased, P.W.13 Putlabai, the mother of the deceased and P.W.14 Ananda, the brother of the deceased. P.W.1 is Maruti Desai, who acted as panch for inquest. P.W.2 is Baburao Chavan, who had drawn the map of scene of offence. P.Ws. 3 to 8, who had acted as panchas for spot and discovery panchanamas had turned hostile and did not support the prosecution case. P.W.10 is Dr. H.R. Tata who had examined P.W. 9 Vilas. P.W.11 is Dr. Madhukar Salunkhe who had performed post mortem examination on the dead body of Shivaji and examined P.W.13 Putlabai and P.W. 14 :9: Ananda. P.W. 15 is Dr. Ravindra Gunaki who had examined P.W.12 Ganpat. P.W. 16 is constable Bhalchandra More, who had taken the dead body of Shivaji to the Cottage Hospital, Karad for post mortem examination and also taken possession of the clothes of the dead body which were seized under seizure panchanama Exh.22. Lastly, P.W. 17 is P.S.I. Vijay Chougule, who investigated the case. The defence of the accused is of total denial. The accused have examined one defence witness Kalavati Bhise. From the cross-examination of the prosecution witnesses and the evidence of the defence witness, the defence of the accused appears to be that a mob of 50 persons had gathered near the house of the deceased and had resorted to violence, in the course of which the deceased and the prosecution witnesses had received injuries. 7. The Additional Sessions Judge by the impugned judgment and order has acquitted all the respondents-accused, who were tried before him, of all the offences on the ground of discrepancy in the evidence of prosecution witnesses, including the offences in respect of the assault made on the individual witnesses who were injured. The said judgment and order of acquittal recorded by the trial :10: court is under challenge in this appeal filed by the State. 8. We heard the learned APP and the defence advocate at length after going through the evidence of the witnesses and perusing the reasoning of the trial court. On behalf of the State it was argued that there is cogent and reliable evidence of the witnesses who were themselves injured at the time of the incident which took place in front of their house and the said evidence is corroborated by the medical evidence and recovery evidence which cannot be ignored and, therefore, the acquittal of the accused was illegal. On behalf of the defence it was argued that there are discrepancies in the evidence of witnesses as regards the time of the incident and the witnesses do not appear to have seen the assault on deceased Shivaji as they had not known the whereabouts of deceased Shivaji, whose body was traced from the bathroom situated in the cattle shed after the police went there following morning to draw the spot panchanama. It was, therefore, submitted that the accused were rightly acquitted. 9. Apart from the fact that panch witnesses had turned hostile at the time of trial of this case, even :11: P.W.9 Vilas, the brother of the deceased, who himself was seriously injured, had also surprisingly turned hostile though the crime was registered on the basis of his statement recorded after he was admitted in the hospital on the night of the incident and he had named only those accused who had assaulted him. According to his own deposition he was admitted to Krishna Hospital at 9.30 p.m. on the night of the incident as he had received injuries. According to him he had received two injuries on his right hand and two injuries on his head and one injury on his left hand and was indoor patient for 27 days in that hospital. He had been to Karad in the afternoon of 18/5/1988 and returned about 7.30 p.m. According to his hostile version given in the court, while returning from Karad when he was near the threshold of his house, somebody hit stick on his head as a result of which he fell down and became unconscious and regained consciousness in the hospital. He has also deposed that his father Ganpat was also injured on that day and he had also been admitted to the hospital. Thereafter the police came to the hospital to whom he narrated the incident which was recorded by the police. But he denied that the complaint was read over to him and, therefore, he was declared hostile. He has also denied certain portions from the complaint read out to him in the :12: court. In the cross-examination by the P.P. it was put to him that he was giving false evidence as he apprehended that the accused persons would create obstacles in the marriage of his daughter which was arranged that time. His statement on the basis of which crime was registered is proved by I.O. P.S.I. Chougule and produced on record at Exh.71. In the said complaint he has attributed assault on his right hand and left hand and his head to accused no.1 with a sword and to accused no.2 with stick. The said complaint also mentions that his brother Anandrao P.W.14 had contested the election of the society about a year ago and since that time there was strained relationship between the accused and his family in respect of which his father had given complaint and because of that accused nos.1,2,3 and other 15-20 persons had assaulted him and his father with sword and had attempted to kill him. 10. This witness who had turned hostile was examined by Dr. H.R. Tata P.W.10. Dr. Tata was at the relevant time working as Medical Director in Krishna Hospital, Karad. According to him on 18/5/1988 P.W. 9 Vilas was admitted in that hospital and he had examined him and given treatment. He has :13: produced original case papers (Exhs.49 & 49-A) in the court. He had noticed following external injuries on the person of P.W.9 Vilas:- (1) C.L.W. on right forearm, bone deep, cutting all the muscles, radial ulnar arter 4 and ulna nerves 15 x 10" C.M. (2) C.L.W. on left hand at metacarp totha lan geal joint. (3) C.L.W. scalp occipital 6" x 2" C.M. right parietal 4 x 4 c.m. left parietal 8 c.m. x 2 c.m. . The doctor has also proved the case papers and the injury certificate (Exh.50) dated 16/3/1994 issued by Dr. Shaha who was working under him and has deposed that this witness was admitted in the hospital on 18/5/1988 and discharged on 14/6/1988. According to Medical Officer injury no.1 might have been caused by sharp and cutting instrument. Injury no.2 was also possible by hard and sharp cutting weapon and injury no.3 could be caused by hard and blunt object. Doctor has further opined that injury no.1 was dangerous to human life. This injured witness had undergone surgical treatment in that hospital. :14: 11. No doubt this witness was declared hostile but it is well settled that the portion of the evidence of even hostile witness can be relied by the court which supports the prosecution case and is otherwise reliable. He has deposed that he was injured on 18/5/1988 when he returned from Karad in the evening at about 7.30 p.m. as he was assaulted by somebody on his head with stick near the threshold of his house as a result of which he fell on the ground and that he was admitted to the Krishna Hospital at about 9.30 p.m. that very night as he had received injuries. He has also admitted that he had received two injuries on his right hand, two injuries on his head and one injury on his left hand and was indoor patient for about 27 days in the said hospital. He has also admitted that his father Ganpat i.e. P.W.12 was also injured on that day and, therefore, he was also admitted in the same hospital and that police came there on the same night to whom he narrated the incident which was recorded by the police, on which his thumb impression was obtained. Thus he does corroborate the prosecution case that incident of assault had taken place on the night of 18/5/1988 just outside his house in which he was injured while he was near the threshold of his house and because of the injuries suffered by him he was admitted to the :15: hospital same night where his father was also admitted for his injuries. 12. On behalf of the defence it is argued that the complaint Exh.71 lodged by this witness is only in respect of the assault on him in which all the accused were not named but the other accused were named subsequently after the recovery of the dead body of Shivaji. The witness not having corroborated his statement Exh.71 on the basis of which crime was registered, his statement cannot be given much importance. But the evidence of other witnesses shows that he had come when the assault was almost over and when he came he was also assaulted and, therefore, he was taken in the jeep of Adhikram along with his father P.W.12 Ganpat. The crime was registered at that time for the offence of rioting and for offence of attempt to murder under Section 307 of IPC because of the serious injuries received by P.W.9 Vilas and his father P.W.12 Ganpat. P.W.12 was present at the place of incident from the beginning who had witnessed the assault on deceased as well as his wife and sons. Police, who were not aware about the actual incident in question, when informed about the admission of two patients from village Kusur, seeing injured Vilas :16: P.W.9 in a position to give statement, recorded his statement and the crime was registered. P.W. 17 P.S.I. Chougule was not aware that time that other members of the family were also assaulted in that incident as he had not interrogated or recorded the statement of P.W.12 Ganpat that night. P.W.9 gave his statement to the extent of his knowledge about the incident. He had arrived at the scene at the fag end of the incident of assault on deceased and other witnesses. Neither P.W.9 was aware about the assault on the deceased and other members of the family nor the police had any occasion or source to know about the same. P.S.I. had no reason to know that P.W. 12 Ganpat was knowing about the assault on deceased and other members of the family, otherwise P.S.I. would not have failed to record his statement. In the statement of P.W.9 there was no indication of the other members of the family having been assaulted or injured except his father and himself. It was pursuant to this complaint that I.O. went to the place of offence that very night at about 1.30 a.m. but since no one was there, not even the three accused who were named in the statement of P.W.9, he went back to the police station at about 4.30 a.m. By that time P.W.14 had reached the police station and, therefore, P.S.I. again went to the place of offence along with :17: him same morning and drew spot panchanama. Naturally, before drawing the spot panchanama police went around the house inside as well as outside the house and that is how the dead body of Shivaji was traced in the bathroom of the cattle shed which was adjoining to the residential house of the complainant party. 13. On behalf of the defence it is contended that witnesses must not have seen the assault on Shivaji and the witnesses have spoken about the assault on Shivaji only because his dead body was found. There is no substance in the said contention. As observed earlier, the witnesses have said that they saw Shivaji being assaulted by the accused with weapons like axe, sword and stick and, therefore, he ran towards bathroom. Though the witnesses had seen Shivaji running away, may be towards bathroom, but the witnesses did not have the reason to know that Shivaji had succumbed to his injuries and must be lying dead in the bathroom. When they saw him running away because of the assault on him they might have thought that he must have escaped from the place of incident. Immediately after the incident the family had split up as P.W. 12 Ganpat and P.W. 9 Vilas were taken to the hospital, while Putlabai, P.W.13 remained in the house though she was also injured. P.W.14 Ananda had gone :18: to the police station that very night which is at some distance from village Kusur. If the statement of P.W. 12 Ganpat had been recorded that very night or of some other eye witness, the witnesses would have certainly stated about the assault on Shivaji even before his dead body was traced. The statement of only P.W.9 was recorded for the purpose of registering crime, who was obviously not aware about the assault on Shivaji as the witness had arrived at the scene after Shivaji had tried to escape by running away from the place of the incident after he was assaulted. 14. It cannot be forgotten that the incident had started with assault on Shivaji. The incident which took place near the house of the deceased in the night was preceded by earlier incident which took place between 5 p.m. and 6 p.m. on that very day near the Jotiba Temple when the mother of deceased Shivaji had rescued him and brought him to their residence. When Shivaji was leaving the house to attend his shop after taking meals at about 8 p.m. in the night he was again assaulted by the accused near his own house. That time his parents went out to rescue him but they were also assaulted. P.W. 13 the mother having received injury near her eye and father having been seriously injured, who had to be hospitalised for a :19: period of about 2 months, could not have known where Shivaji had gone. When the incident of assault had started with the assault on Shivaji and when the members of his family intervened they were also assaulted by the accused persons, the assault on Shivaji cannot be separated from the assault on his parents and brothers. Therefore, the argument that the assault on