1 app-1101-04.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1101 OF 2004 Tanaji Shamrao Nalavade & Ors. ..Appellants Vs. State of Maharashtra ..Respondent Mr. Nitin Pradhan i/b Ms S.D.Khot with Ms Anita Kuttikrishnan for the Appellants Ms S.V. Gajare, APP for State. CORAM:­ NARESH H. PATIL, & Mrs. MRIDULA R. BHATKAR, JJ DATED :­ JUNE 14, 2011. ORAL JUDGMENT (PER Mr. NARESH H. PATIL, J.) 1 This appeal is directed against the Judgment and Order convicting and sentencing the Appellants for life imprisonment and fine and for one year with fine for offences punishable under Section 302, 323 read with Section 34 of IPC. Briefly stated the prosecution case is as under: 2 The deceased Jaysing Nalawade was having his agricultural land in village Padawalwadi. He was staying along with his family in Kolhapur. His parents were residing near Vaghbil Ghat in 2 app-1101-04.sxw a bungalow. P.W.­12­ Babasaheb Gurav and the deceased Jaysing Nalawade were friends. P.W.­12 was resident of Village Kerle. The deceased had a crusher machine. He was doing agricultural work. Padawalwadi is at a distance of 2 to 3 K.M. from Village Kerle. It is alleged that there was a dispute between Shamrao Nalawade of Padawalwadi and Malhari Nalawade in respect of agricultural land. The past history shows that murder of Shamrao Nalawade his sons Vasant Nalawade and Baban Nalawade, Malhari Nalawade and his sons Bajirao Nalawade was committed, at that time police had arrested the deceased Jaysing Nalawade, Vilas Pandurang Raut and others. Vilas Raut is Accused No.3 herein. In the said case the deceased was acquitted. The incident in question took place on 1­2­2003. It is alleged that on that day at about 9.00 a.m. the deceased Jaysing Nalawade came to the hotel of P. W. 12 Babasaheb Gurav. He requested P.W.­12 to accompany him as he was engaged in sowing sugar cane. Both of them went by a private vehicle to the field of the deceased at Padawalwadi There were 5 women workers doing their agricultural work in the field of the deceased. Uttam Saravate was engaged in sowing sugar cane. The work got over at 3 app-1101-04.sxw 5.30 p.m. It is alleged by the prosecution that thereafter the deceased Jaysing Nalawade, labour Uttam Saravate and P.W. 12 Babasaheb Gurav went to hotel Amar for taking tea. The deceased gave Rs.400 to Uttam Saravate for marketing purposes. Thereafter Uttam went towards the bungalow. It is alleged that thereafter the deceased and P. W.­12 reached near the temple of Lord Ganesh which is in front of the house of Anandrao Patil. 3 The prosecution further alleged that at about 6.00 p.m. the deceased and P.W.­12 were waiting for a private vehicle. At that point of time three accused came by a Motor cycle of Yamaha company from Vaghbil side. The said motor cycle was driven by the Accused Tanaji Nalawade and Ghanshyam Atigre and Vilas Raut were sitting behind Tanaji Nalawade. At that point of time, P. W.­12 claims to have seen Pandurang Raut who emerged at the seen of offence from some direction. It is alleged by the prosecution that Vilas Raut took out a sickle used for cutting sugar cane and started abusing deceased Jaysing Nalawade in filthy language. Thereafter he gave a blow by sickle on the person of Jaysing Nalawade. The deceased obstructed said blow with the help of his hand. At that time P. W. 12 4 app-1101-04.sxw suggested the deceased Jaysingh Nalawade that he should run away from the spot. The deceased started running away towards the house of Anandrao Patil. Thereafter Tanaji Nalawade, Ghanshyam Atigre and Popat Raut followed Jaysing Nalawade. They all were armed with sickles. It is alleged that the Accused Vilas Raut gave blow of sickle by blunt side on the left knee of P. W. 12. During the course of running Jaysing Nalawade fell at the threshold of house of Anandrao Patil and at that point of time Accused Tanaji Nalawade, Ghanshyam Atigre, Popat Raut and Vilas Raut gave repeated blows of sickle on the head and back side of Jaysing Nalawade. P.W.­12 Babasaheb Gurav requested the Accused not to Kill Appa (Jaysing Nalawade). The P.W.­12 states that when the Accused persons were marching towards him he ran away from the site. He was waiting on the main road known as Kolhapur­Ratnagiri road, for getting a vehicle. No sooner he saw one truck coming he stopped that truck entered in it from the driver side. P.W.­12 told the driver to drive the truck in high speed. P. W.­12 thereafter alighted from the said truck and went to the bungalow and informed the incident to the parents of the deceased Jaysing Nalawade. 5 app-1101-04.sxw 4 It is the prosecution case that by private vehicle P. W. 12 went to village Kerle and visited hotel of Tanaji Mane. He disclosed the said incident to the son of Tanaji Mane and requested him to telephone the police. P. W.­12 was afraid of the accused so he preferred to stay back in the hotel itself and after some time he came to know that Jaysing Nalawade was dead. Thereafter he proceeded to Kolhapur by a private vehicle. The Police reduced the complaint of P.W.­12 Babasaheb Gurav into writing (Exhibit 31) Thereafter P. W.­24 Jayant Deshmukh Police Inspector of Karveer Police Station proceeded to the spot of incident. He saw dead body of Jaysing Nalawade and also noticed the presence of Police Inspector Ishwar Sutar and Police Sub­Inspector Waghmale at the spot. He directed Police Inspector Ishwar Sutar to go to the police station to look after the registration of the FIR and to prepare inquest panchanama of the dead body. P. W.­24 Jayant Deshmukh started searching the Accused in Village Kerle and Padawalwadi. He took search of the house of the Accused but the accused were not found there. He returned to the police station. He verified the FIR. He noticed that the complainant the sole Eye witness Babasaheb Gurav P.W.­12 had sustained injury. 6 app-1101-04.sxw He was taken to hospital for surgery. A memo was also sent to the Doctor in this regard (Exhibit 76). 5 On 2­2­2003 the Investigating Officer prepared panchanama of Spot (Exhibit­22) collected blood sample of the blood which was lying on the floor near the house of Anandrao Patil. He recorded statements of Indubai Anandrao Patil and 10 other persons. The police claims that on 2­2­2003 ASI Vibhute seized a shirt which was on the person of complainant. Panchanama to that effect was drawn. The clothes on the persons of deceased were seized and a panchanama was accordingly drawn. According to the police all the accused persons were found in the area known as Kaneri. They were brought to the police station and arrested in the police station and panchanama to that effect was drawn. Their clothes were also seized. The police found blood spots at various places on the clothes of the accused. On 4­2­2003, the Accused Tanaji Nalawade gave a statement that they had dropped sickles and T­shirt of Ghanshyam Atigre in a well situated at Village Kekhale. A Memorandum was drawn. Panchas were called (Exhibit ­80) The Investigating Officer reached village Kekhale. In the presence of the accused the articles were recovered 7 app-1101-04.sxw from the well which was owned by Rangapa Patil who was present at the time of seizure. One diver Uday Nimbalkar was called, he jumped into the well and took out these articles. There was 12ft. Deep water in the well. The articles included 3 sickles and T­shirt (article No.19, 21, 22, and 20) Recovery panchanama was drawn. Statement of the Jeep driver was also recorded by the police. Motor cycle of the Accused Vilas Raut was seized by the police on 5­2­2003 and a seizure panchanama was drawn which is at Exhibit­85. 6 After completion of investigation, police filed charge sheet against the Accused in the Court of J.M.F.C. Kolhapur. The case was tried as Sessions Case No.83 of 2003 before the Court of Additional Sessions Judge, Kolhapur on 12­9­2003. The Learned Judge framed charge against the Accused which they denied. 7 The prosecution examined 24 witnesses. CA report was placed on record along with the postmortem report. 8 The entire prosecution case hinges on the sole eye witness P.W.­12 Balasaheb Gurav. The witnesses in respect of seizure of clothes of complainant, deceased, accused have turned hostile, as well as witnesses who were examined as panchas for discovery of 8 app-1101-04.sxw sickles, T­shirt and motor cycle of Accused No.3 have turned hostile to the prosecution. Accordingly prosecution witnesses 1 to 11 who are basically examined as panchas have not supported the prosecution. P.W.­12 is a solitary eye witness. P.W.­13 is Doctor Kumar Nanawane who is Medical officer who conducted postmortem and issued a medical certificate in respect of the injury suffered by the deceased. P. W. ­14 Suniladevi Nalawade is the wife of the deceased. P.W.­15 Vishwas Salokhe from whom the accused had purchased sickles turned hostile. P. W.­16 Abhay Nalawade is the nephew of the deceased. P. W.­17 Indubai Patil wife of Anandrao Patil has not supported the prosecution, P. W.­18 Tanaji Chopdar who too has turned hostile. P. W.­19 Uday Nimablkar who was called to dive in the well has not supported the prosecution. P. W.­20 driver has turned hostile. P.W.­21 Jaywant Patil clerk in the hospital produced register in respect of the endorsement of the injury caused to the complainant. P.W.­22 Ishwar Sutar is I. O. Karveer Police Station. P. W. 23 is Subhash Vibhute Asst. P.I. and P. W.­24 Jaywant Deshmukh P. I. Karveer Police station. 9 The CA report is at Exhibits 34 to 38 and the postmortem 9 app-1101-04.sxw notes are at Exhibit 43. The medical certificate issued in respect of the complainants injury is at Exhibit ­44 and at Exhibit ­45 is a provisional death certificate of Jaysing Nalawade. 10 The Learned Counsel appearing for the Appellant, Mr. Nitin Pradhan, submitted that the presence of eye witness is highly doubtful and his evidence is not wholly reliable. The evidence regarding injuries suffered by the deceased is not corroborated by medical evidence. Some of the injuries are disproportionate to the weapons used. There is no substantive evidence in respect of the entry (Exhibit 60) occurring in the register maintained in the hospital. The Learned Counsel further submitted that P.W­12 is highly interested witness. No reliance could be placed on the evidence of this solitary eye witness to convict the Appellant. The learned Counsel submitted that workers in the field of the deceased were not examined, and deliberately suppressed evidence in respect of statement of other witnesses who were naturally available in the village and at the scene of offence. Adverse interference is required to be drawn against the prosecution according to the Counsel. Persons who had proximity to the deceased and to the scene of offence were 10 app-1101-04.sxw also deliberately withheld. The incident took place at a busy locality and the prosecution could not have difficulty to record the statement of independent persons who were residing around the said area. The panchas and diver have turned hostile, which itself demonstrates that the majority of witnesses have preferred not to support the prosecution. The Learned Counsel submitted that the owner of the well is not examined by the prosecution. In respect of the conduct of the eye witness, it was submitted that there was delay in filing FIR and considering the quality of evidence of P.W.­12, independent corroboration to the testimony of P.W.­12 was essential in this case. The evidence of P.W.­12 is not wholly reliable evidence. The Learned Counsel submitted that the police failed to register offence even after receiving information in respect of commission of offence and deliberately allowed some time to lapse, so as to concoct a story for involving the accused persons. In respect of the actual assault the Counsel submitted that the prosecution case does not show so as to who gave deadly blow on the deceased. In the narration of the PW.­12, it was stated that repeatedly Accused were assaulting the deceased, but considering injuries suffered by him the statement of 11 app-1101-04.sxw P.W.­12 becomes unworthy of reliance in respect of manner of assault. Considering the narration given by him before the Court as regards injuries suffered by the deceased, no intention to kill could be gathered from the injuries suffered by the deceased. The recoveries made by the prosecution allegedly, pursuant to the statement made by the Accused under Section 27 of Evidence Act are not worth reliable. 11 The Learned APP Ms S.V. Gajare submits that there is no delay in lodging report with the police. The police had promptly started investigation in this case. The station diary was maintained in the normal course and there was not interpolation in that regard. The Learned APP submits that there is no requirement in law that the prosecution shall examine more than one eye witness in a given case. Even if there is one eye witness whose evidence is cogent and reliable, an order of conviction could very well sustain and present is such a case, where an order of conviction could sustain relying upon the evidence of P.W.­12. The P.w.­12 is resident of that area. He was with the deceased throughout the day. They were very close friends. Therefore, there was no necessity to lead additional independent 12 app-1101-04.sxw evidence to establish these facts before the Court in respect of actual assault. The Counsel submitted that P.W.­12 was very much present at the scene of offence. He tried to save life of the deceased. In the process he too suffered injuries which establish presence of P.W.­12 at the spot. He saved his life. P.W.­12 ran away from the spot and informed the parents of Jaysing Nalawade. The Learned Counsel does not see any unnatural exaggeration on the part of P.W.­12. After coming to know that Jaysing Nalawade was dead, P.W.­12 proceeded to Kolhapur for informing the police, even this act of P.W.­12 cannot be said to be blame worthy or concocted. The Counsel placed reliance on evidence of P.W.­23 to show that P.W­12 was in village and had witnessed the incident. In respect of the motive, the Counsel submitted that there was serious enmity between the Nalawade brotherhood and the issue of illicit relation between Vilas Raut and wife of Vasant Nalawade Accused No.3 was a cause. The Counsel submitted that criticism regarding entry, Exhibit 44 and 60 is unwarranted. The entries are taken in natural course of maintenance of register and certain degree of reliance can be placed on these entries. There was no need for prosecution to manipulate these 13 app-1101-04.sxw entries. To further substantiate the prosecution case, police seized weapons used in the commission offence. The Counsel submitted that the blood group­O is mentioned in the CA report. The blood group of the deceased was found to be inconclusive. It was urged by the counsel that in the light of the fact that the common intention on the part of the accused was established, it was not necessary to describe individual role played by the Accused in this case. In respect of the medical evidence of the deceased suffering a stab injury, the Counsel submitted that the said injury could be caused by the weapons used in the commission of crime. The Learned Counsel further submitted that the evidence of P.W.­12 is reliable evidence. The prosecution has not withheld any evidence from the Court. There is no manipulation and concoction to falsely implicate these four accused persons. The Counsel placed reliance on reasoning adopted by the Trial Court in convicting the Accused persons. 12 The P.W.­12 Balasaheb Gurav sole eye witness deposed before the Court prosecution case in respect of the happening of the incident as narrated above. He stated that prior to 6 to 7 months of the incident in question, accused were acquitted in a murder case 14 app-1101-04.sxw lodged against them. In respect of motive. P. W. 12 deposed that the deceased Jaysing Nalawade informed the witness that Vilas Raut Accused No.3 had illicit relations with wife of Vasant Nalawade and due to the said reason their relations were strained. In respect of the incident in question, the witness deposes that throughout the day he was with the deceased in his field on the request made by him. After completing the days work both returned back at 5.30 p.m. They had tea at hotel Amar along with labour Uttam Saravate who was engaged by the deceased Jaysing Nalawade. The deceased paid Rs.400 to Uttam for marketing purposes and thereafter Uttam Saravate left the place. The witness deposes that at that point of time three accused persons excluding Popat Raut came on motor cycle from Vaghbil side. Popat Raut was seen on the spot as he too had come to the spot from some direction. It is stated that Vilas Raut was armed with sickle. He started abusing Jaysing Nalawade and inflicted a blow on him. Jaysing Nalawade obstructed him with the help of his left hand. P.W.­12 tried to save the deceased and calling him as Appa asked him to run away from the spot. The deceased thereafter started running from the spot. The accused were 15 app-1101-04.sxw behind him and while running the deceased fell at the threshold of the house of Anandrao Patil. All the accused persons started giving blows on head and back of the deceased repeatedly. P.W.­12 requested them not to assault him. Thereafter according to the witness the accused persons started marching towards the witness and apprehending danger to his life, P.W.­12 ran towards the road. He saw a truck coming, he stopped that truck and got into the truck and saved his life by leaving the place. Thereafter the witness went to the house of parents of deceased to inform about the incident. Then witness claims that by a private vehicle he went to Village Kerle and then to the hotel of Tanaji Mane. There he disclosed the said incident to son of Tanaji Mane and requested him to telephone the police. There he came to know about the death of Jaysing Nalawade and thereafter he proceeded to Kolhapur to lodge a complaint. The cross­ examination of the witness is very crucial for appreciating the case. 13 We have seen Exhibit ­72 map of scene of offence, but for appreciating the actual location, surroundings, the scene of offence, evidence of witness including witness of P.W.­12 had to be minutely scanned. The situation surrounding the scene of offence assumes 16 app-1101-04.sxw significance. P.W.­12 Balasaheb Gurav deposes that private vehicle used to stop near hotel Amar. This spot is very close to state High way popularly known as Kolhapur­Ratnagiri Road. The house of Anandrao Patil is towards west side of the road. The temple of Lord Ganesh is at a distance of 10ft from the middle of the road. At a distance of 7 ft from the said distance there is house of Anandrao Patil. From the house of Anandrao Patil hotel Amar is situated at a distance of 600 ft. towards the southern side of the house of Anandrao Patil. There are houses of Dinkar Gavali, Lanu Patil, Balaso Padwal, Baban Padwal, Shrikant Padwal, Jaywant Padwal and Baurao Padwal. The witness states that house of Dinkar Gavali is at a distance of 200 to 250 from the house of Anandrao Patil. Opposite to house of Padwal there is Padwalwadi Phata. This demonstrates that the scene of offence is not located in a isolated place. It was surrounded by residential houses, hotel, temple, busy road known as Kolhapur­Ratnagiri road. 14 The incident in question took place in the evening hours of the day at about 6.00 p.m. 15 Considering the fact that the case is based on evidence of solitary eye witness i.e. P. W,­12, his evidence is subject to certain tests 17 app-1101-04.sxw which are to be applied for considering as to whether his evidence is reliable, convincing and reasonable. In the facts of the present case and the back drop of the evidence collected and brought before the Court, we find it reasonable and proper to expect corroboration to the evidence of the P. W.­12 on material aspects of the case. 16 The prosecution has failed to lead cogent and reliable evidence in respect of the presence of the P.W.­12 Balasaheb Gurav along with the deceased Jaysing Nalawade in the field of Jaysing Nalawade on 1­2­2003. None of the workers in the field were examined by the prosecution to corroborate the version of the P.W.­12 on this aspect. The last person to be with the deceased and the P.W.­12 is labour Uttam Saravate, who had tea with them at 5.30p.m. on the said date in Amar Hotel. He, too, has not been examined by the prosecution, neither his statement is recorded by the police to establish that P.W.­12 reached hotel Amar along with the deceased and had tea at hotel Amar. In respect of the incident in question, wherein the prosecution alleges that the Accused persons assaulted the deceased with the help of sickle. Except P.w.­12 there is no witness in the case who deposed against the Accused persons in 18 app-1101-04.sxw respect of the actual assault. P.W.­16 Abhay Nalawade the nephew of the deceased claims to have heard P.W.­12 informing his grand parents that the accused assaulted the deceased and P.W.­12. Inspite of the fact that there were several residential houses around the spot, temple, hotel and the busy road Kolhapur­Ratnagiri was passing through very close to this spot, the prosecution did not find any person who would depose in respect of the presence of the eye witness along with the deceased and the incident in question. After having close scrutiny of the evidence and after considering the issues raised by the Learned Counsel appearing for the respective parties, we find that the evidence of the solitary eye witness is lacking in respect of placing complete and safe reliance on his testimony. 17 The conduct of P.W.­12 eye witness is also to be looked at very closely. He deposes that after he saw the accused marching towards him, he ran away from there and boarded a truck and went to Vaghbil Ghat, visited the parents of the deceased and informed them about the incident. Throughout his evidence, there is no whisper in respect of as to whether persons residing in the vicinity were there or not and if anybody intervened during assault. P.W.­12 19 app-1101-04.sxw thereafter says that he reached village Kerle in the hotel of Tanaji Mane. He claims to have disclosed the incident to Son of Tanaji Mane and requested him to contact the police on telephone. As the witness was afraid of accused, he preferred to sit in the said hotel. In the said hotel the witness came to know that Jaysing Nalawade died and after coming to know about the death he decided to go to Kolhapur and accordingly he went to Kolhapur and lodged a complaint to the police station. Station Diary entries of Karveer Police Station, Kolhapur, are also brought on record. They are at Exhibit 24 and 25. The entry recorded at 19.05 on 1­2­2003 reads that there was a call from Village Kerle informing the police that a huge quarrel is going on between the brotherhood of Nalawades. Saying so, caller disconnected the phone. The second call was received at 19.10 by the police. The informer was Tanaji Mane. He informed that Jaysing Nalawade was seriously injured in a big quarrel between the Nalawade brotherhood. The caller asked police to send the staff. The police accordingly deputed API Sutar and PSI Waghmale. By 20.25 complaint was filed by P.W.­12 was recorded in writing by the police and a crime was registered for the offence punishable under Section 20 app-1101-04.sxw 302, 323 at Crime No.29 of 2003. It is surprising to note that inspite of the fact that police received information at 7.00 p.m.