IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 106 OF 1994 APPEAL NO. 106 OF 1994 APPEAL NO. 106 OF 1994 The State of Maharashtra. ] .. Appellant Vs (.1) Shivdas Nana Bhagat, ] (.2) Bhalchandra Vasant Keni, ] (.3) Vishwas Baliram Kavale, ] (.4) Raja Namdeo Nikam, ] (.5) Ravindra Uttam Khandagale, ] (.6) Anant Bhiva Govilkar, ] (.7) Subhash Dagadu Shinde, ] (.8) Arban Dharma Bhoir, ] (.9)Bankelal Surajprasad Chourasiya(dead)] (10) Sunil Pandurang Satpute, ] (11) Manohar Sitaram Mhatre, ] (12) Rajan Narayan Kine. ]..Respondents Shri P.M. Vyas, Spl.P.P. with Shri A.M. Shringarpure, A.P.P., for the appellant- State. Shri P.M. Pradhan, Advocate for the respondent Nos.1 to 11. (Respondent No.9 dead). Respondent No.12 served - absent. CORAM: S.S. PARKAR & ANOOP V. MOHTA, JJ. DATED: 04TH MARCH, 2005 ORAL JUDGMENT : [Per Anoop V. Mohta, J.] 1. This is a State Appeal against the order of acquittal dated 11th November, 1998, passed by IInd Additional Sessions Judge, Thane, whereby all the respondents - original accused Nos.1 to 13 have been : 2 : acquitted of the offence punishable under Sections 34, 120B, 147, 148, 149, 307, 302 of the Indian Penal Code (for short "IPC") and also of the offence punishable under Sections 27, 25(c) read with Section 7 of the Arms Act. 2. Atmaram Shripat Patil (the deceased) was running a business of excavation and sale of sand from Mumbra creek and had 27 labourers under him. Ramdas Shirole (PW1) was the Supervisor of this work. A plot No.1 at Retibunder, to construct a fishing pond, was allotted to him. Kathod Devu Bhagat (PW10) was working as a Commission Agent of the deceased. Accused No.12 also runs a similar business in another plot in the same vicinity. It is alleged that about two months prior to the incident, Kathod Devu Bhagat along with his associates assaulted accused/respondent No.1 with a sword and he was arrested. For the release on bail, the deceased helped him financially also. 3. On the evening of 5th March 1991, the work of tilting of fishing pond was going on under the supervision of Ramdas Shirole. The other workers Namdeo Borse, Rohidas and some others were also working. The deceased Patil and his son Vilas (the deceased) were giving instructions to the workers. At about 6.45 p.m. : 3 : when Kathod went to ask them for transportation of some sand, 7/8 persons carrying guns and revolvers arrived and stood near the compound wall besides Bombay-Poona Road and started firing towards the deceased. Atmaram and Vilas (the deceased) were shot down. The workers including Ramdas Shirole and Namdeo Borse (PW2) witnessed the 7/8 persons firing. They managed to hide themselves in the surrounding shrubs. On seeing this firing, Kathod started running. He was chased by two of the assailants and fired at him. However, he succeeded in reaching the office of Atmaram Patil located in plot No.1 and collapsed there. After the incident, all the assailants ran away towards Mumbra in a green Matador. 4. Ramdas Shirole and Namdeo Borse came out to the spot from the shrub. Ramdas managed to bring a jeep and with the help of other workers Namdeo Borse and Tambi Changiram, put the deceased (Atmaram and his son Vilas) in the jeep and took them to the hospital of Dr. Bhanusali at Thane. Kathod was taken to Civil Hospital, Thane. Ramdas Shirole, a complainant, reported the matter at Thane Town Police Station and C.R. No.I-O/91 came to be registered there and was ultimately sent to Mumbra Police Station. Senior Inspector Marathe of Mumbra Police Station started investigation. During the investigation, he recorded the statements of various : 4 : witnesses and made recoveries of the weapons used for the crime. As Kathod was unconscious, his statement could not be recorded till 17th March 1991. A further statement of Kathod was recorded on 28th September 1991. Under the directions of the Hon’ble High Court, for further investigation, accused Nos.12 and 13 came to be arrested. The charge-sheet against accused Nos.1 to 11 was submitted on 4th June, 1991, and a supplementary charge-sheet was filed against accused Nos.12 and 13. Accordingly, both the cases were clubbed and tried together. 5. The prosecution examined 23 witnesses and the defence examined only one witness. The evidence of the prosecution can be classified into six categories viz. (A) Alleged eye witnesses: PW1 Ramdas Shivram Shirole, PW2 Namdeo Yeshwant Borse and PW10 Kathod Devu Bhagat; (B) To prove conspiracy: PW3 Chandanlal Baburao Gosavi, PW4 Rama Punja Dagle, PW5 Bhairu Punja Dagle (all these witnesses turned hostile), and PW6 Datta Jagannath Govilkar; (C) Witnesses to the Panchanama: PW7 Bhagwan Mahadeo Patil, PW8 Manish Chintaman Tare, PW9 Laxman Sopan Jagtap; (D) Medical Evidence: PW11 Dr. Shrikrishna Sitaram Dhone, PW12 Dr. Mohan Vasant Sohoni, PW13 Dr. Vishwas Murlidhar Sapatnekar, PW14 Uday Shrirang Shelke and PW15 Ramdas Kavne Sidhu; (E) : 5 : Expert Witness: Ballastic Expert PW23 Madhukar Damodar Ajgekar, Deputy Director, Ballastic Division, Forensic Science Laboratory; (F) Investigating Officers: PW16 Hafizgulam Nabi Shaikh (PSI Thane Town Police Station), PW17 Ramchandra Baburao Gavade (PSI Mumbra Police Station), PW18 Jairam Madhu Chavandke (PSI attached to Mumbra Police Station), PW19 Narayan Tukaram Kapse (PSI, Mumbra Police Station - From 13/3/1991 to 16/3/1991), PW20 Sadashiv Ravji Ghadge (PSO, Mumbra Police on 5/3/1991), PW21 Vishwas Jaitram Marathe (Main Investigation Officer), PW22 Arun Sadashiv Shingre (PI attached to Crime Branch). The sole defence witness was DW1 Vishwanath Anantrao Bhongale. 6. The learned 2nd Additional Sessions Judge, Thane, before whom the trial was conducted came to the conclusion that the prosecution failed to prove the charges against the accused beyond reasonable doubt and therefore, acquitted all the accused of all the charges levelled against them by the impugned judgment and order dated 11th November, 1993. Therefore, this Appeal against the order of acquittal. 7. We have heard learned Special Public Prosecutor Shri P.M. Vyas for the State and learned Advocate Shri P.M. Pradhan for the respondent Nos.1 to : 6 : 11. None appeared for respondent No.12, though served. The Special Public Prosecutor contended that the impugned judgment and order of granting benefit of doubt to the respondents-accused is baseless, illegal and contrary to the record. The learned Judge failed to consider the recovery of tempo and the weapons in the proper prospective of the law and fact [PW11 and PW17]. Though witnesses [PW5, 6 and 8] turned hostile, their balanced testimony could not be overlooked. The charge of conspiracy against the accused was proved by PW1, 2 and 10. The learned Judge was wrong in overlooking and discarding the evidence of PW8 Manish a Panch witness [Exhibit-70] and one who shifted PW10 Kathod from the Civil Hospital, Thane to Dr. Sapatnekar’s (PW13) Hospital, solely because Manish denied his signature and the fact of shifting Kathod from the Civil Hospital to Dr. Sapatnekar’s Hospital. Non examination of some witnesses by the prosecution could not be the ground to discard the existing and duly proved prosecution case. The accused could not be acquitted merely because no identification parade was held in the present case. Some flaws and lacunas in the investigation should not have resulted into acquittal. The evidence of PW1 and PW2 in respect of the Panchanama about the colour of the clothes of the accused could not have been discarded. The learned Judge was wrong in observing that all the : 7 : three victims Atmaram, Vilas and injured Kathod (PW10) were not shifted to the Hospital in the same jeep and, therefore, wrongly granted benefit of doubt. The prosecution proved the motive of the accused to kill the deceased and Kathod (PW10). The learned Judge has wrongly disbelieved the main witnesses PW1, PW2 and especially PW10 merely because their statement was recorded after 12 days of the incident and as Dr. Sapatnekar and Dr. Dhone have stated and supported on record, that Kathod was in a conscious condition. The learned Special Public Prosecutor further contended that the victim or the injured must be in a position to depose. Therefore, merely because he was in a conscious condition, that itself was not sufficient. The consciousness must be full and or patience must be of sound mind. Thus, the prosecution has properly explained the reason for being unable to record the statement of Kathod for more than 12 days, as he was not in a proper condition to make the statements. Therefore, recorded statement of PW10 cannot be discarded on the ground of delay, especially when his deposition in the Court is in corroboration with the earlier statement. The finding that the attack on Kathod and the resultant injury was doubtful is also baseless in view of the evidence of PW2 Namdeo. The evidence of PW2 was overlooked. The evidence of PW10 : 8 : was also wrongly disbelieved on the foundation of exaggeration and/or omission and/or contradiction. He, therefore, contended that the testimony of PW1, 2 and 10, which corroborates the other evidence, including the documentary evidence, is sufficient to convict the accused and, therefore, the impugned judgment is liable to be quashed and set aside. The learned Special Public Prosecutor relied on 1963, MLJ, 134 [Bhagwanbhai Dulabhai Jadhav Vs. State of Maharashtra] in support of his contention that existing discrepancies without any attempt at evaluation of the inherent quality of the evidence on the record is unwarranted. He further relied on AIR 1967, S.C., 450 AIR 1967, S.C., 450 AIR 1967, S.C., 450 [Srichand K. Khetwani Vs. State of Maharashtra] and contended that Section 114 Illus.(g) of the Evidence Act cannot be invoked in the present case. The adverse inference cannot be drawn, unless a case is made out that such evidence was deliberately withheld. He further relied on 1997 (1), 1997 (1), 1997 (1), M.L.J., M.L.J., M.L.J., 337 337 337 [Sham @ Raju R. Anpur & Ors. State of Maharashtra] to support his submission that the testimony of a single injured witness (PW10) in a murder case, as a whole, has a ring of truth and, therefore, little discrepancy cannot make his testimony unacceptable. He also relied upon the Ballastic Expert opinion. : 9 : 8. The learned Advocate appearing for the appellant, however, resisted all the above contentions and made his submission in support of the impugned judgment and order. He relied on the definition of the word "analgesics" as explained in Pharmacology and Pharmacotherapeutics authored by R.S. Satoskar, S.D. Bhandarkar and S.S. Ainapure (Revised Fourteenth Edition). The term is as under: "Analgesics "Analgesics "Analgesics are drugs which relieve pain without causing loss of consciousness." He also relied on the Pocket Medical Dictionary authored by L.M. Harrison for the words "sedation and sedative", which is reproduced as under: "Sedation "Sedation "Sedation n. the production of a restful state of mind, particularly by the use of drugs [see sedative]. Sedative Sedative Sedative n. a drug that has a calming effect, relieving anxiety and tension. Sedatives are administered at lower doses than those needed for sleep (drowsiness is a common side-effect). They have largely been replaced by tranquilizers, which are less likely to : 10 : cause drowsiness or dependence." 9. There is no dispute that the deceased Atmaram Patil and his son Vilas died on 5th February, 1991, at about 6.45 p.m., due to the gunshot injuries. They collapsed on the spot. These two dead bodies were put into a jeep by PW1 Ramdas Shirole and were taken to the hospital of Dr. Bhanushali at Thane. PW12 Dr. Sohoni examined both the dead bodies issued and the Death Certificates. The dead bodies were thereafter sent to the Civil Hospital, Thane, for post mortem. PW11 Dr. Shrikrishna, a Medical Officer in the Hospital performed the autopsy and found various bullet injuries. As per the Post Mortem Report (Exhibit-85) and as observed in paragraph 16 of the impugned judgment, there is no doubt that the death was homicidal. 10. PW10, Kathod, had sustained bullet injuries on the very day in the same incident. He was brought to the Hospital by Babu Shankar Gavli. The Examination Report, as well as, paragraph 17 of the impugned judgment described the nature of the injuries. The injuries had wound of entry and wound of exit. The injury Nos.2 to 6, as reported, might have been because of pellets of the bullet. The X-ray was taken and Kathod was advised to take rest. As per Dr. Dhone : 11 : (PW11) and, the Medical Report (Exhibit-83) PW10 Kathod was conscious. There is not much dispute about the injuries caused by firearms to Kathod. However, Kathod, against the Medical advise, left the hospital along with one Mr. Manish Chintaman Tare (PW8). He was thereafter admitted to the hospital of Dr. Sapatnekar. As per the prosecution case, and as submitted by the Special Public Prosecutor appearing for the State, Kathod was unconscious throughout after the incident and, therefore, his statement could not be recorded. He regained consciousness on 17th March, 1991, and gave a statement naming all the assailants who, according to the prosecution, actually assaulted him and the deceased with firearms. At the hospital of Dr.Sapatnekar (PW13), a bullet was removed from the body of Mr.Kathod. 11. PW1, PW2 and PW10 were the alleged eye witnesses of the prosecution. PW1 Ramdas was working with the deceased. The complaint (Exhibit-58) was lodged on 5/2/1991. This witness, according to the prosecution, was a material witness and narrated honestly, without exaggerating anything. This witness, immediately after the incident, lifted both the dead bodies with the help of PW2 and took them to Bhanushali Hospital at Thane. He had witnessed 7/8 persons standing besides Bombay-Pune Road near a wall, holding : 12 : guns and pistols. He also saw that Atmaram and Vilas had sustained gunshot injuries and to save himself, he rushed to the bushes. After two-three minutes, he came back to the spot. By that time, the other labourers, who were working, had ran away from the place. Ramdas (PW1) thereafter immediately brought a jeep, put the bodies of the deceased in the jeep and went to Dr. Bhanushali’s Hospital at Thane. This witness named Namdeo Kamble, who helped him to carry the dead bodies to Bhanushali Hospital. On coming out of the said Hospital, he was informed that Kathod (PW10) had also sustained gunshot injury and, therefore, was admitted to the Civil Hospital, Thane. The complaint was lodged by this witness in the Thane Police Station. According to the prosecution, the deceased Atmaram and his son Vilas had financially helped injured Kathod (PW10) in other Court cases, when he was arrested for assaulting accused No.1 Shivdas and accused No.11. Therefore, the said accused killed the deceased. We have noted that this witness nowhere named any of the accused in the complaint. Only a doubt was raised about accused Nos.1 and 11. He had made reference to the fact of 7/8 persons firing from the Bombay-Pune Road near a wall at 6.45 p.m. and they were on the spot only for two to three minutes. Therefore, this witness nowhere supports the prosecution case that all the accused were the : 13 : assailants and that all of them were holding guns and pistols. There is nothing on the record to show that this witness has made reference of any other accused to anybody, even after lodging the complaint. The complaint was lodged with the Police on the same day, but no one was named. There was no reason for this witness, not to name all or any of the assailants if they were present at the relevant time. This witness has admitted that to save himself, he rushed to the bushes and came out only when the firing was over and saw that Atmaram and Vilas were lying injured. This witness also admitted that it came to his knowledge that Atmaram and Vilas had helped Kathod for his bail when he was arrested for assaulting accused Nos.1 and 11. This witness also admitted in the cross-examination that the assailants were not known to him at the time of the incident and, therefore, he was not sure about these persons details before lodging the complaint. He admitted that it was at the time of lodging the complaint, that the names of accused No.1 Shivdas and accused No.11 Manohar were heard by him. In the complaint, he stated that the assailants of his master and his master’s son were the hirelings of accused No.1 and accused No.11. In the cross-examination, he admitted that he did not tell before the Police that he had seen a gun with any of the assailants. He could not : 14 : give description of the assailants before the Police. He further answered that he did not know whether Kathod was assaulted by somebody and that he was present at the spot of the incident. He further deposed that none of the workers, who were present there, told him about the assailants. Similarly, he had not disclosed anything about the assailants. The evidence of this witness, therefore, according to us, and as rightly observed by the learned Sessions Judge, is difficult to accept in order to connect the accused with the crime. 12. PW2, Namdev Yeshwant Borse, is another worker of the deceased, who helped PW1 to carry the dead bodies of the deceased into the jeep. Namdev has supported PW1 to the extent that after hearing the sound like bursting of crackers, he turned and saw 7/8 persons firing continuously from guns and pistols towards the deceased Atmaram and his son Vilas. Both suffered gunshots and fell down. This witness also rushed towards the bushes to save himself. The firing went on continuously for two to three minutes. This witness has deposed that in the same firing, Kathod (PW10) was also hurt. The assailants ran away from the spot in a green coloured tempo towards Mumbra. This witness supported the prosecution’s case that PW1 brought a jeep and the dead bodies were taken to the hospital. This witness deposed : 15 : that Kathod was also removed from the said place in a jeep to the hospital. Kathod was unconscious, but this witness has also nowhere supported the prosecution case when he stated "I cannot identify those persons." However, in the cross-examination he was able to give description of the accused for the first time and deposed that they had worn white coloured clothes and were between 20 - 25 years. Namdev (PW2) has deposed that he saw Kathod in an injured condition in the office of his master and the distance between the spot, where his master sustained gunshot injury, to that Office, was about 100-125 meters. This witness admitted that when the assailants fled away in a tempo, he was hidden in the bushes. He never told PW1 or anybody that the assailants ran towards Mumbra in a green coloured tempo. This witness was unable to assign any reason as to why the Police had not recorded that Kathod became unconscious. This witness was never called by the Police at any time to identify the assailants. This witness, therefore, was unable to link the respective roles of the accused as sought to be contended by the prosecution in the present matter. The learned Judge, therefore, rightly passed the order of acquittal by not believing these two witnesses, PW1 and PW2. 13. The testimony of PW10 Kathod, an injured : 16 : witness, along with the evidence of PW1 and PW2, has been relied by the prosecution to connect the accused with the crime and claim these witnesses to be natural eye witnesses. This injured witness had a business relation with the deceased. He used to supply cement to his customers from the business place of the deceased on the commission basis. This witness was taking all necessary and financial help from the deceased as he was involved in some criminal cases and those cases were pending at the relevant time. The suggestion was that one of the case was related to some relation of accused No.12. This witness was also arrested for assaulting accused No.1. In both these cases, the deceased helped him. Those criminal cases, as put to him, Crime No.1-352/90 and Crime No.1-21/91, were denied, even though he admitted about two pending cases against him. This witness has further denied that there was a show cause notice of externment proceeding received by him. However, he has admitted that he replied such a notice. This witness deposed that on 5th March, 1991, at about 6.30 p.m., on hearing the sound like bursting of crackers, when he turned towards that direction, he saw 7/8 persons. Those persons were accused Nos.1, 2, 3, 5, 6, 7, 8 and 12. This witness knew all the accused. This witness saw that Atmaram and Vilas were hit by the bullet and they collapsed. This witness was also hit by : 17 : the bullet on the back and the hand and he also heard the voice "Yalahi Ghya". This witness has deposed that one Bhalchandra and Rajendra Keni followed him. No other witness has supported or corroborated this chasing. He went upto the Office and collapsed there and became unconscious. This witness further claimed that he was unconscious for 10-12 days. He regained consciousness in the hospital of Dr. Sapatnekar and thereafter, his statement was recorded by the Police, there he named the above accused for the first time. This witness refused that when he was in a conscious condition in the Civil Hospital, Thane, one Manish Chintaman Tare, against medical advise, took him to the hospital of Dr. Sapatnekar. There is a document of Civil Hospital, Thane, on the record wherein the said Manish Chintaman Tare had given in writing that "at his risk he is taking this patient out of the said hospital". He further admitted that the reference of three crimes registered against him was made in the said reply and Manish Chintaman Tare was a witness who gave evidence on behalf of this injured witness. 14. After being admitted to the Civil Hospital, Thane, Dr. Dhone (PW11) made endorsement in the case papers (Exhibit-84) that Mr. Kathod was conscious and was in a fit condition to make statement. As per PW11, : 18 : Dr. Dhone, this witness was injured by the bullet. However, inspite of the medical advise to take rest, as noted above, one Mr. Tare shifted this witness to Dr. Sapatnekar’s Hospital. It is difficult to believe that without the consent of this witness, an unknown person viz. Mr. Tare, could have shifted such injured person to any other Private Hospital. There was no statement made or recorded by anybody to suggest that the accused and no one else had fired and those bullets resulted into two deaths and injury of this witness. If this witness was conscious when he was admitted to the Civil Hospital, Thane, if he knew the assailants, there was no reason for him not to disclose any name to the doctor or to any other person. He could have disclosed the name of the assailants even to the said Mr. Tare. This witness also refused, inspite of the evidence and endorsement of Dr. Yadav of Civil Hospital, Thane, that he was conscious on 5th March, 1991. He was unconscious and, therefore, the Police was unable to record his statement, the prosecution has relied on Dr. Dhone’s evidence that from time to time, he was under drugs or sedatives and, therefore, he was not in a position to make any statement. The argument was that he was not in a stable state of mind to make any statement and, therefore, even though he was conscious when he was admitted in the Civil Hospital, Thane, it cannot be said : 19 : that he was conscious to make the statement. As we have noted, this witness even denied