1 CRIM.APPL.-174-1990 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.174 OF 1990 The State of Maharashtra .. Appellant (Orig.Complt.) Versus 1. Prabhat @ Bhai Narayan Wagh 2. Meghnath Ganpat Dhuri 3. Vidhyadhar Sitaram Malkar 4. Uday Tukaram Talgaonkar 5. Hanumant Atmaram Deulkar 6. Appa Gopal Malankar 7. Tulsidas Jagannath Ludbe 8. Diwakar Harishchandra Joshi 9. Krishna Dhondu Gavade .. Respondents (Orig.Accd.Nos.1 to 9) Shri P.S. Hingorani APP for the State Shri Satish Maneshinde with Sachin B. Shetye Advocate for Respondent Nos.2, 4 to 6 and 8. CORAM : D.G. DESHPANDE, & S.R. SATHE,JJ. DATED : 29 th March, 2007 ORAL JUDGEMENT :- (PER S.R.SATHE,J.) 1. The State of Maharashtra has preferred this appeal against the judgement and order passed by the Court of Additional Sessions Judge, Sawantwadi in Sessions Case No.7 of 1989 whereby the accused No.1 and 3 to 9 were acquitted of the offences punishable under sections 120-B, 147, 452 r/w. 149, 452 r/w. 34, 302 r/w. 149, 302 r/w. 34, 324 r/w. 34, 201 r/w. 34 of IPC and accused Nos. 1 and 2 were also acquitted of the 2 CRIM.APPL.-174-1990 offences punishable under sections 201 of IPC, in a case where deceased was murdered in ghastly and gruesome manner. 2. The brief facts giving rise to this appeal are as under :- Deceased Sanjay Dinkar Gaonkar was residing at Malwan in the area known as Revatala. The accused Nos.1,2, 4 to 9 were residents of Malwan at the relevant time and accused Nos.3 and 9 were residing at village Nandos and Bombay respectively. Admittedly, there was rivalry between Sanjay Gaonkar on one side and accused persons on the other side. 3. On 19/10/1987, at about 7.30 pm deceased Sanjay Gaonkar and his two friends namely PW-8 Anil Raut and PW-15 Rajan Angane were chit-chating in front of Kishor Cycle Mart at Bharad Naka, Malwan. At that time, complainant Suryakant Ramchandra Phansekar a resident of Malwan having his house in the area known as Vaiery had gone to a saloon owned by PW-3 Vijay Chavan. The said saloon was situated just in front of Kishor Cycle Mart. The complainant had gone to the said shop for reading newspaper. It was his usual practice to visit the said shop for reading newspaper. On the day of 3 CRIM.APPL.-174-1990 incident at about 7.30 pm, when complainant was in the said shop, all of a sudden he heard voice of “iGk&iGk“ (run-run). Naturally, he just went out side the said shop and he found that deceased Sanjay Gaonkar was running towards the house of Shobhana Parkar which was very near from the said saloon and the accused No.1 Bhai Wagh, accused No.3 Vidhyadhar Malkar, accused No.7 Tulsidas Lubde were chasing him with weapons like gupti and sword in their hands. When the deceased Sanjay Gaonkar was about to enter the said house, accused No.1 gave a blow with weapon like gupti on the neck of Sanjay and he fell on the ground. Thereupon, other two accused persons also assaulted Sanjay with weapons which were in their hands. Immediately, thereupon, complainant rushed to Malwan Police Station and informed them about the incident and requested for police help. The police head constable Parab who was present in the Police Station asked the complainant Suryakant Phansekar to give his complaint in writing. The complainant therefore gave writing Exh-28 wherein he stated that persons of Divakar Joshi entered the house and assaulted complainant's friend Sanjary Gaonkar and he saw Bhai Wagh and other 5-6 persons and they weer having sword, gupti in their hands and they assaulted Sanjay at the said place. On the basis of the 4 CRIM.APPL.-174-1990 said writing Station Diary Entry No.292 was made and Police proceeded to the place of offence. They found that deceased Sanjay was lying in a pool of blood just inside the door of house of Shobhana Parkar. According to the Prosecution, even Shobhana Parkar had also received injury to her arm when she had tried to intervene. By the time, police reached the place of offence, the accused had disappeared from the said place. After reaching at the place of offence, Police again made query with complainant and then complainant was taken to the Police Station and his detailed complaint was recorded by the Police Station Officer. On the basis of the said complaint (Exh-27) Police registered the offence at C.R. No.81/87. On the next day, Police drew the inquest panchanama of the dead body of Sanjay Gaonkar and sent his dead body for postmortem. They also drew the panchanama of the place of offence. Police then recorded the statements of some witnesses and arrested the accused No.1 on 20/10/1987 at his house. At that time, accused was wearing reddish colour lungi and shirt. Police attached the same under the panchanama as there were some blood stains. When accused No.1 was in the police custody, on 22/10/1987, he made a statement before police that he would produce the gupti like sword concealed in the bushes and police 5 CRIM.APPL.-174-1990 therefore recorded his statement in presence of panchas and then accused No.1 took police and panchas to the side of seashore and from the bushes, he produced one gupti like sword having length of about 2'. Police attached the said gupti under the panchanama. Police then arrested other accused persons and also attached the clothes of the deceased. Police sent all the articles attached during the investigation to C.A. After completion of the investigation, they submitted charge-sheet against the accused in the Court of JMFC,Malwan for the offences mentioned above. 4. Finding that the accused were charge-sheeted for the offence punishable under section 302 of IPC which was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Sessions Court, Sawantwadi. 5. The learned Additional Sessions Judge Sawantwadi framed charge Exh-1 against the accused for the offences mentioned above. The charge was read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried. 6. In order to prove the charge levelled against 6 CRIM.APPL.-174-1990 the accused, the Prosecution examined as many as 20 witnesses. They can be divided in four groups :- First group is of eye witnesses viz.:- PW-4 complainant Suryakant Ramchandra Phansekar Exh-26, PW-8 Anand @ Anil Murari Raut Exh-33, PW-15 Rajan Waman Angane Exh-51, PW-16 Sudhir Maruti Manjarekar Exh-52. The other group is of Pancha Witnesses viz. PW-1 Sunil Bapu Ravale Exh-19 who acted as pancha for article panchanama, PW-2 Rajaram Gopal Girkar Exh-21 Pancha regarding discovery, PW-3 Vijay Sitaram Chavan Exh-23 pancha for place of offence and attachment of clothes of accused No.1. PW-5 Murari Vasudev Sarang Exh-29, PW-12 Ashok Keshav Gaonkar Exh-40 who acted as pancha for discovery panchanama, PW-13 Yashawant Balkrishna Hadkar Exh-42 who acted as pancha when accused No.2 showed the place where clothes were burnt. The third group is of other witnesses viz.:- PW-6 Dilip Sadashiv Girkar Exh-31, PW-7 Diwakar Vasant Amberkar Exh-32, 7 CRIM.APPL.-174-1990 PW-9 Atmaram Bapu Bhogate Exh-37, PW-10 Rajan Vasant Mayekar Exh-38, PW-11 Dattaram Umaji Khavanekar Exh-39, PW-14 Pandurang Shantaram Jadhav Exh-45. The Prosecution has examined in all four police officers namely :- PW-17 Police Head Constable Mahadev Jairam Morje Exh-53, PW-18 Sub-Inspector Shashikant Dhondu Bandarkar who carrying out the investigation for some time Exh-55, PW-19 PSI Bhalchandra Yashwant Salvi Exh-65, he also carried out some investigation, PW-20 Circle Inspector Kamalakar Shankarrao Kamat Exh-69 who took the investigation of the case on 26/10/1987. 7. The Prosecution also produced certain documents such as writing, giving information about the incident Exh-27, FIR Exh-28, Inquest Panchanama Exh-20, Panchanama regarding the clothes of the deceased Exh- 22, Panchanama of place of offence Exh-24, memorandum and discovery panchanama regarding gupti produced by accused No.l Exh-41 and 25 respectively. Panchanama regarding pointing out the place where the clothes were 8 CRIM.APPL.-174-1990 burnt and attachment of ash and burnt pieces of clothes Exh-43 and 44 respectively. Medical Certificate as to cause of death Exh-47, Postmortem Report Exh-48 and C.A. Report Exh-70 and 71. As against this, The accused did not lead any defence evidence. From the suggestions put to the prosecution witnesses and from the statement of accused recorded as per section 313 of the Criminal Procedure Code, it appears that defence of the accused was of total denial. According to them they were falsely implicated in the said case. It is the case of accused No.2 and 3 that at the relevant time, they were not even at Malwan. 8. After considering the Prosecution evidence and hearing the arguments of both the learned Advocates, the learned Trial Judge came to the conclusion that the Prosecution has proved that the death of Sanjay Gaonkar was homicidal. However, according to him there were several discrepancies and contradictions in the evidence of the alleged eye witnesses. There were lacunas in the investigation and thus, it was necessary to extend the benefit of doubt to the accused. He, therefore, acquitted all the accused of the charges levelled against them. 9 CRIM.APPL.-174-1990 9. Being aggrieved by the said judgement and order the State has filed the present appeal. In this appeal before us Shri Hingorani, learned APP has urged 3 points. Firstly, he submitted that learned Trial Judge has not properly appreciated the evidence on record and has given undue importance to minor discrepancies and contradictions. Secondly, he canvassed before us that learned Trial Judge ought to have taken into consideration the fact that information about the incident was given to Police by the complainant immediately and names of at least accused Nos.1,3 and 7 were disclosed in the same and it was also stated that they assaulted Sanjay Gaonkar with deadly weapons. Lastly, the learned APP strenuously argued before us that the learned Trial Judge ought to have considered the fact that there are as many as four eye witnesses who have corroborated the Prosecution version and they have not in fact made any attempt to rope all the accused but given true account of what they had seen. He, therefore, submitted that the appeal be allowed and order of acquittal be set aside and at least accused Nos.1,3 and 7 be convicted for the offences with which they are charged. 10. As against this, Shri Maneshinde, learned 10 CRIM.APPL.-174-1990 Advocate for the accused supported the judgement and order passed by the learned Trial Judge. He submitted that Exh-27 is in fact not the FIR but Exh-28 appears to have been given by the complainant first in time. According to him, the same is also fabricated. But even if it is accepted, there is no mention of the names of all the accused and only the name of accused No.1 is mentioned but no overt act has been attributed to him. He also submitted that considering the discrepancies and contradictions in the evidence of eye witnesses, the learned Trial Judge has rightly rejected their evidence. Lastly, he submitted that even if it is assumed that the evidence on record can be appreciated in a different manner still that by itself is not sufficient to allow the appeal as it is well settled that if the view taken by the Trial Court is a possible view and reasonable one, the Appellate Court should not interfere with the finding of acquittal. He, therefore, submitted that the appeal be dismissed. 11. It is not in dispute that the deceased, accused and the prosecution witnesses are basically residents of Malwan. Admittedly, they were known to each other since prior to the date of offence. It is not even disputed that the accused and the prosecution witnesses 11 CRIM.APPL.-174-1990 belong to rival political groups and there was rivalry between deceased Sanjay on one hand and the accused persons on the other hand. Admittedly, on 19/10/1987 at night some incident took place and at about 8.30 pm or so when police went to the place of offence, they found Sanjay Gaonkar lying in a pool of blood just inside the house of Shobhana Parkar. From the inquest panchanama Exh-20 it is also very clear that several incise injuries were noticed on the person of Sanjay Gaonkar. The Prosecution has produced at Exh-48 the postmortem report. In this report, in column No.17 the injuries which were found on the person of Sanjay Gaonkar have been mentioned. The same are as under :- 1)Incised wound 2 cm x ½ cm bone deep going deep in the bone (Maxilla) left. 2)Incised wound 9 cm x 2 cm bone deep, on left mandibular from left angle of mouth to the angle of mandible. 3)Incised wound 1 cm x ½ cm subcutaneous deep left side cervical. 4)Incised wound 1 cm x ½ cm subcutaneous deep right delto-pectoral region. 5)Incised wound 3 cm x 1 cm deep, just below right sternoclavicular joint going laterally deep inside. 6)Incised wound 8 cm x 2 cm deep, just below left 12 CRIM.APPL.-174-1990 sternoclavicular joint horizontally going medially deep inside. 7)Incised wound 1 cm x ½. cm x subcutaneous deep, on upper sternal region. 8)Incised wound 1 cm x ½ cm x bone deep on midsternal region. 9)Incised wound 1 cm x ½ cm x bone deep lower 1/3 sternal region. 10)Incised wound 1 cm x ½ cm x bone deep, lower sternal region. 11)Incised wound 1 cm x ½ cm subcutaneous deep left cervical. 12)Incised wound 1 cm x ½ cm left cervical. 13)Incised wound 2 ½ cm x 1 cm x ? deep, left pectoral on lateral side in anterior axillary line in 6th intercostal space. 14)Incised wound 2 cm x ½ cm x ? deep left lateral pectoral region in 7th intercostal space. 15)Incised wound 2 cm x ½ cm x ? deep left lateral pectoral region in 6th intercostal space mid axillary line. 16)Incised wound 2 cm x 1 cm elliptical right hypochondriac region 7th intercostal space. 17)Incised wound 4 cm x 1 cm x bone deep, right hypochondriac region mid clavicular on the 6th rib. 13 CRIM.APPL.-174-1990 18)Incised wound 4 cm x 1 ½ cm x bone deep, elliptical left hypochondriac region. 19)Incised wound 8 cm long x 1 ½ cm x cubsute deep, extended on right side by linear abrasion on the left scapular region. 20)Incised wound 4 cm x 1 ½ cm x deep elliptical on left hypochondriac region going medially deep inside in abdomen. 21)Incised wound 4 cm x 2 cm x ? deep small intestine seen popping through it, left side of the unbillical region. 22)Incised wound 8 cm long x 7 cm wide elliptical web space between thumb and Index finger on left side space completely open thiner muscle exposed. 23)Minor abrasion 7 cm long, on left deltoid region. 24)Incised wound 2 cm x ½ cm x bone deep on right lateral hypochondriac region mid axillary region. 25)Incised wound 3 ½ cm x 1 cm elliptical x subcutaneous deep, on right forearm. 26)Incised wound 1 cm x ½ cm x subcutaneous deep, on right thumb external aspect. 27)Incised wound 2.5 cm long x ½ cm x subcutaneous deep on right lateral abdominal wall midline between cost region and anterial superiar iliac spine. 28)Minor abrasion 7 cm long on right deltoid. 14 CRIM.APPL.-174-1990 29)Incised wound 1 cm x ¼ cm x subcutaneous deep on back right side lumber region. 30)Incised wound 1 cm x ½ cm x subcutaneous deep, just below above injury. 31)Incised wound 1 cm x ½ cm on right internal deltoid. Doctor has opined that the death was caused due to terminal cardio respiratory failure due to severe shock due to perforating and penetrating injuries to vital organ. 12. It is an admitted fact that defence did not challenge the said postmortem report. On the contrary, gave its no objection to exhibit the same and read it in evidence. Thus, we find that at no point of time, it has been the case of the defense that death of Sanjay Gaonkar was not homicidal. Having regard to the postmortem report and the evidence on record, the learned Trial Judge rightly recorded the finding that the death of Sanjay Gaonkar was homicidal. 13. The main and the material question is whether the said death was caused at the hands of the accused persons or some of them? In order to prove that the death has been caused at the hands of some of the accused persons, the Prosecution is heavily relying on 15 CRIM.APPL.-174-1990 the evidence of eye witnesses namely PW-4 complainant Suryakant Ramchandra Phansekar Exh-26, PW-8 Anand @ Anil Murari Raut Exh-33, PW-15 Rajan Waman Angane Exh- 51, PW-16 Sudhir Maruti Manjarekar Exh-52. While assessing and evaluating the evidence of these eye witnesses one must bear in mind two principles, namely, whether in the circumstances of the case, it was possible for the eye witnesses to be present at the seen and whether there was anything inherently improbable or unreliable. Creditability of a witness is to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence taken in manner and context of the case and not by entering into realam of conjecture and speculation. It has been so held in State of UP V/s. Noori Noorjahan J.T. (1996) 3 SC 570. From the perusal of the judgement of the Trial Court, we are of the view that the learned Trial Judge has ignored the above mentioned two principles and has unnecessarily given undue importance to minor discrepancies, contradictions, improvements here and there and as a result, reached to a wrong conclusion. We would presently point out how and why we have formed the said opinion. 16 CRIM.APPL.-174-1990 14. It is the prosecution case that at the relevant time there was an unlawful assembly of accused Nos. 1 to 9 and the common object of the said assembly was to commit murder of Sanjay Gaonkar. However, at the outset it must be mentioned that if we peruse the evidence of the above mentioned 4 eye witnesses then we find that PW-4 complainant Suryakant Phansekar has stated in his evidence about the presence of only accused Nos.1,3 and 7 at the place of offence. PW-8 another eye witness Anand @ Anil Murari Raut Exh-33 has spoken about the presence of only accused Nos.1,3,4 and 7 and PW-15 Rajan Waman Angane Exh-51, the third eye witness has stated about the presence of only accused No.1,3 and 7 at the place of offence. PW-16 Sudhir Maruti Manjarekar Exh-52 has made reference about the presence of accused Nos.1 and 3 only. Thus, we find that none of these eye witnesses has specifically stated that at the relevant time they saw five or more accused persons at the place of offence and they were taking part in attacking Sanjay. So, the learned Trial Judge has rightly observed that the prosecution has failed to prove that at the relevant time, there was an unlawful assembly of five or more persons. So, naturally, the question of accused constituting an unlawful assembly or they being the members of an unlawful assembly does not arise. 17 CRIM.APPL.-174-1990 There is absolutely no evidence to establish that the accused committed offences punishable under sections 147, 148, 149 of IPC. It is true that in the first information which was given by the complainant to Police vide Exh-28 he had mentioned therein that he saw 5-6 persons, but we can not ignore the fact that as the incident occurred all of a sudden, he had seen some persons chasing Sanjay with weapons in their hands, he might have thought that there were about 5-6 persons but that by itself is certainly not sufficient to jump to the conclusion that the evidence given by the complainant Suryakant Phansekar is not reliable or that he was not present at the place of offence. On the contrary, it must be noted that even in the subsequent detailed information which he has given vide Exhibit-27 and which has been treated as FIR by Police therin also he has named only accused Nos.1,3 and 7 as the persons taking part in the alleged assault. If really he had any intention to rope all the accused and give false evidence against them, then certainly he would have stated accordingly while giving evidence but we find that he has not named the other accused persons. 15. PW-4 complainant Suryakant Ramchandra Phansekar Exh-26 has stated that at the relevant time, he was in 18 CRIM.APPL.-174-1990 the saloon of Vijay Chavan. At that time, he heard shout “run-run” and when he went outside the shop, he found that accused No.3 Vidhyadhar Sitaram Malkar was chasing Sanjay with sword in his hand and accused No.1 Bhai Wagh and accused No.7 Tulsidas Jagannath Ludbe with accused No.3 and deceased Sanjay entered into the house of Shobhana Parkar. The accused No.3 Vidhyadhar gave a blow with sword to Sanjay. So also accused No.1 Bhai Wagh gave blow to Sanjay with weapon like gupti. The accused No.7 Tulsidas also assaulted him. He has stated that he saw the said incident standing at some distance from the house of Shobhana Parkar. It is pertinent to note that this witness has immediately rushed to the Police Station and informed the police about the alleged assault on Sanjay. When Police asked him to give the information in writing, he did not hesitate but immediately gave the writing Exh-28. The learned Trial Judge has, however, not relied on the testimony of this witness. According to him, this witness if really would have been present there and had seen the entire incident, he would not have failed to mention in FIR Exh-28 the names of accused Nos.3 and 7 who were previously known to him. Merely because names of some of the accused persons are not mentioned in the FIR that does not mean that testimony of the said 19 CRIM.APPL.-174-1990 witness is not reliable or that he was in fact not present at the place of offence. If at all such test was to be applied the learned trial judge should have at the most held that his evidence is not sufficient to show complicity of accused Nos.3 and 7 but instead the learned Trial Judge has discarded his entire evidence. Firstly, it must be noted that there is no rule of law that if names of some of the accused persons are not mentioned in the FIR then the evidence of such witness who has given FIR should be disbelieved. In fact, it is well settled that the inference arising from the fact that the names of some of the accused are not mentioned in the FIR must vary from case to case. If any authority is needed for this proposition it is reported at AIR 1974 SC 1936 and AIR 1974 SC 1978. 16. In the instant case, one most consider the circumstances under which and the purpose for which this witness Suryakant Phansekar had rushed to the Police Station. It is needless to say that when he had seen some persons with deadly weapons proceeding towards his friend Sanjay and were assaulting him, he must have got scared and perturbed. So, in such state of mental condition he rushed to the Police Station mainly with a view to call police rather than to give 20 CRIM.APPL.-174-1990 full account of the incident. Even then, we find that though he had not named the accused Nos. 3 and 7 in the said FIR Exh-28, all other material particulars namely the presence of accused No.1 with deadly weapons and the presence of others also with deadly weapons and their assault on Sanjay in the house of Shobhana Parkar has been stated by the said witness. So, under the circumstances, merely because in the FIR there is no specific mention of accused Nos. 3 and 7, we are not inclined to hold that the testimony of Suryakant Phansekar is not reliable. Had it been the case that the complainant Suryakant had stated that only accused No.1 Bhai