1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE Criminal Appeal No.382 of 1990 W I T H Criminal Appeal No.417 of 1990 -------- Criminal Appeal No.382 of 1990 The State of Maharashtra. .. .. Appellant V/s. Shankar Khelu Batawale & ors. .. .. Respondents (Org.Accused Nos.1 to 10) W I T H Criminal Appeal No.417 of 1999 The State of Maharashtra. .. .. .. Appellant (Orig. Complainant) V/s. Ganpat Pangoji Andhere & 24 others .. Respondents (Orig. Accused Nos.1 to 25) Mrs.S.D . Shinde, APP for Appellant. Mr.A.G. Toraskar for Respondent Nos.1 to 25 in Criminal Appeal No.417 of 1990. Mr.Shreekant V. Gavand for Respondent Nos.1 to 5 and 7 to 10 in Criminal Appeal No.382 of 1990. ----- 2 CORAM : DR.S. RADHAKRISHNAN & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 6th September 2007 Date of pronouncing the judgment : 21 st November 2007 JUDGMENT : (Per Smt.Roshan Dalvi, J.) 1. Both these Appeals relate to the same incident. In both these Appeals, two groups of parties are concerned. One is called the Sarpanch Party (SP) and the other is called as Police Patil Party (PPP). Criminal Appeal No.382 of 1990 concerns itself with the Police Patil Group as the Accused. There are ten Accused in this case, out of which Accused No.6 is said to have expired on 9.11.2005. The Appeal against Accused No.6 has abated. There are 25 Accused in Appeal No.417 of 1990, out of whom the Appeal is being prosecuted against the first 11 Accused only. 2. In the Trial Court, the two cases against the aforesaid two parties were tried one after another. In the case under Appeal No.382 of 1990, eight witnesses have been examined. In the case under Appeal No.417 of 1990, ten witnesses have been examined. The essential charge in both these cases is under Sections 302, 147, 148 and 149 of the Indian Penal Code. Both the cases have ended in acquittal. 3. The State has challenged the judgment of acquittal in these 3 cases under the aforesaid Appeals. It may be mentioned that since the same incident resulted in two criminal complaints filed by one of the members of the aforesaid two groups each, the allegations made and the statements recorded were of several witnesses stated to be eye witnesses who deposed as to the incident with regard to a number of persons, most of whom were carrying deadly weapons. It is, therefore, for the prosecution to show and prove the specific overt act by each one of the Accused in both the groups. Consequently, specified roles have to be assigned to each of the Accused. If that is not done, benefit of doubt would have to be given to the Accused. Consequently, in such Appeals, the prosecution must show a very striking and clear evidence of overt act or role played by a specific Accused which has been not correctly considered by the learned Trial Court. Failure to that extent must result in dismissal of the Appeals. 4. We have been read over the evidence of the 18 witnesses who deposed in the aforesaid two cases, several of whom are claimed to be eye witnesses. They are stated to have carried different deadly weapons. Some of these weapons have been recovered and identified. The weapons have to be connected to the Accused who used the weapons in the incident at whose instance, they came to be recovered. The eye witness 4 account must show from which angle, at which distance and under which circumstances these specific overt acts committed by the specific Accused in the two groups were seen by members of the opposite group who deposed against them. Hence, it will be imperative for the Court to consider whether the evidence of the eye witnesses would be reliable under the circumstances in which they were when they witnessed the incident. 5. A case of enmity between the two groups well prior to the date of the incident has been shown and admitted. The incident took place on the date on which both the groups were required to perform rituals at Kalbhairav Yatra held every year in their village. Due to previous enmity, Police bandobast was to be provided each year during the period of the Yatra. It is an admitted position that the members of both the parties were to proceed towards the temple of God Shiva and, by turn, were to cut the wooden pillar in the forest. There was a dispute who would give the first blow to the tree for cutting wooden pillar. The incident took place upon the dispute with regard to that blow. The evidence of the witnesses about what transpired when the parties went beserk forms the crux of the prosecution case against both the groups in which the complaints came to be lodged by one member each of the aforesaid groups. 5 6. It may be mentioned that the oral eye witness accounts show who were the people in the group, how they came at the Shiva temple and what happened when the dispute commenced. They have sought to depose about who gave the blow to whom and with which weapon as seen by them. They have been cross- examined. A large chunk of the eye witness account of several witnesses has been shown to be omissions or contradictions. A part of the eye witness account has been assailed on the ground of unreliability upon the fact that it could not have been noticed, as deposed. It would, therefore, be futile to elaborate in detail evidence of examination- in-chief of these witnesses. It would be prudent to only see the crux of that examination and how it has stood its ground or being demolished in the cross- examination. 7. The evidence of the witnesses in Appeal No.382 of 1990 may be considered first since it was the prior Appeal filed. P.W.1 is the Circle Inspector of Goregon village in Raigad District. He has produced the map of the spot as per the spot panchanama along with the explanatory notes. The map shows the spot of the offence between villages Nhave and Lonere. Near the spot is the hilly area. On the other side of the spot is a canal with flowing water. The villagers are 6 stated to have come from village Lonere to village Nhave via village Goregaon after crossing a seed farm in the latter village. The essential aspects of the map have not been denied in the cross- examination. Nhave village is stated to be 6½ k.ms. from Goregaon Police Station and Lonere village is stated to be 5½ k.ms. from Goregaon Police Station. In the case under Appeal No.417 of 1990 also the Circle Inspector has been examined as P.W.1. He has also produced a map of the scene of the offence as also the spot panchanama giving his explanatory notes. That map shows the details of the spot in village Nhave where the offence took place, including the temple and the houses of several witnesses. His evidence shows the distance between Nhave village and Goregaon Police Station to be about 8 k.ms. and the distance between Lonere village and Goregon Police Station to be about 3½ k.ms. It shows the distance between the seed farm in Lonere village and the village habitation itself to be 1 k.m. and the distance between Kalbhairav temple and the seed farm to be about 3 k.ms. It further shows that the houses of the villagers surround the scene of the offence to the North- West and South. There are agricultural fields to the East. His cross- examination shows a bamboo island near the scene of the offence. The bamboo island is shown to be dense. There are 10- 15 houses nearby . There is a Bandh in the field which is 2½ in feet height. There are 7 various bushes on the Bandh to the West of the scene of the offence. Two trees are bigger than these bushes. 8. The position of the place of offence, as deposed by this government officer being the Circle Inspector, is essentially not denied. 9. It would be material to remember the spot panchanamas and the maps of the scene of the offences in both cases together to understand the credibility of the evidence of the Complainant who is the eye witness and the star witness of the prosecution. The parties were from Nhave village. They are stated to have travelled between Nhave village and Lonere village. The distance between the two villages is about 2 kms. The scene of the offence is near a canal, which is about ½ kms. from Lonere village. The Complainant, who got the spot panchanama prepared and took the Police to the scene of the offence, showed the spot from the top of the mountain where he stood and witnessed the incident in the case in appeal No.382 of 1990. It is 150 feet from the scene of the offence. 10. The evidence of both the complainants in the aforesaid cases may be considered together. Both of them concede that the incident took place at about 5 or 5.15 p.m. 8 11. The complainant in Appeal No.382 of 1990 has involved Accused Nos.1, 2, 3, 4, 5, 6, 9 and 10 and 3 other persons Kashiram Andhere, Parshuram Malore and Bala Bhosale who are stated to be coming from Goregaon village to Nhave village. They came via the seed farm. Some people went straight to the village and some sat near the culvert and other sat in the Gavan (cattle way). Accused Nos.2, 3, 4 and 5 were having sticks in their hands. Accused Nos.8 and 10 – Kashiram and Parshuram also had sticks. He saw one Mohan Andhere, Pandurang Sontakke and Shantaram Andhere going to village Nhave. He saw them at the distance of 150 feet. He signalled them to run away. The people sitting near the culvert followed them and chased them. They were Accused Nos.1 to 10. Accused No.1 gave a stick blow to Shantaram Andhere. Shantaram fell down. All the remaining Accused assaulted him with the sticks. He got afraid and ran towards the Goregaon Police Station and lodged a complaint. 12. He ran towards the hill/mountain. The map on the spot of offence in Appeal No.382 of 1990 shows the place to which he ran. His cross- examination shows his admission that from the mountain side the Gavan is not visible. He was at the long distance from the Accused persons. It also shows 9 that they were 4-5 feet from them. Though they saw him they did not do anything to him in the scuffle. It must be appreciated that after signalling to his party people to run because the opposite party people were having sticks in their hands, the witnesses ran towards the mountain, which was in the South direction by the upper side of the Canal. He went to the top of the mountain and stood there. He did not go by any vehicle to the top of the mountain. His cross- examination further shows that he did not tell this incident to any one. Though his evidence shows that he ran away and went straight to lodge the complaint, his complaint has been lodged a couple of hours after the complaint of the complainant in Appeal No.417 of 1990, which is of the other group being the PPP. 13. Three persons Kashiram, Parshuram and Bala died in the incident. His cross- examination shows that he did not know how they died and where they died. Those are the persons from the Police Patil group. They are alleged to have been assaulted and murdered by the SP people to whom this witnesses belonged. His feigned ignorance of how they died shows his conduct. He has deposed that he did not know whether the people of the SP murdered these three persons with weapons like burchi, spheres and sticks. He has also feigned ignorance about whether Shantaram Andhere 10 received injuries or whether he was lifted to be taken to the hospital or that whilst running he realized that Shantaram was dead and, therefore, he was dropped in the field whilst others ran away. In his cross- examination he has refuted that people from his party directed him to lodge a complaint. He has deposed that he was at the Police Station for the entire night. Yet he has deposed that he did not see the complainant of the PPP. 14. The complainant in Appeal No.417 of 1990 (P.W.2 in Criminal Appeal No.417 of 1990.) belonged to the PPP. He has deposed that about 5 to 5.15 p.m. people from the SP party were standing near the Kalbhairav temple. They started pelting stones upon the people of the PP. They assaulted them near the bamboo island. He saw Accused Nos.1, 2, 3, 4 and 9 assaulting the persons of the SP. He has assigned roles to certain Accused. Accused No.1 gave a blow to Kashiram on his stomach with a burchi. Accused Nos.3, 4 and 9 gave blow to Bala and Kashiram with Pharshi. He has identified them. Accused No.2 gave a blow of the Pharshi on his right palm. His fingers were badly injured. He started running. Accused No.1 gave a blow of Pharashi on his jaw. He was taken in a bullock cart to Goregaon where he was taken to the hospital and treated. His complaint was recorded. He has identified his clothes which were seized, 11 the weapons used in the offence by the Accused and Accused themselves in Court. He was an injured witness. Kashiram, Bala and Shantaram died in the incident. His cross- examination shows that they went to Lonere village via a seed farm. His cross- examination shows that 4-5 persons were assaulting Parshuram with sticks and Pharshi whilst he ran away. They were both attacked at the same time. Parshuram was lying on the ground, surrounded by 4-5 people. He was at the distance of 10 paces. Different persons had attacked them. He would not be able to see who assaulted Parshuram. His cross- examination shows that he did not know whether the Accused persons were present or not in the crowd caused by villagers in front of the temple. His cross- examination shows no mention of the Pharshi used by Accused Nos.1 to 22 whilst assaulting Kashiram and Bala. It shows a reference to axes, sticks, burchis and stones as the weapons used by the Accused. His FIR only shows the blow given to Parshuram with Pharshi on his stomach and himself on his fingers by the Sarpanch. 15. It may be mentioned that the eye witness account of both the complainants has been diluted in their cross- examination. The complainant from the Sarpanch Party in Criminal Appeal No.382 of 1990 has not explained how he 12 could witness the entire incident whilst running and after running from the distance that he was. The complainant of the Police Patil Party in Criminal Appeal No.417 of 1990 has not explained how he could witness the incident whilst he himself was injured from behind the bushes. That have been shown near the Bandh in the evidence of the Circle Inspector. The use of weapons by the Accused has also not been correctly shown in his evidence. The fact remains that the persons from both the parties have been assaulted by several persons from the opposite party and have fallen down and died in the incident. However, the specific evidence against any specific Accused has not been substantiated in both the cases. 16. This evidence shows that the incident was witnessed from a distance of 150 feet. There were many people in the incident. Only Accused No.1 is stated to have given the first stick blow on the head which proved fatal. From the distance that the Complainant was, it is difficult, if not impossible, to state precisely who gave that blow as per his evidence. The further evidence of the remaining Accused is the general evidence relating to the stick blows all over the body of the deceased. 17. His cross- examination shows that he went to the top of the 13 mountain after signaling to the three persons that the Accused, who belonged to the opposite party, were approaching. The examination- in-chief shows that the distance from the scene of the offence is 150 feet. His cross- examination also shows that he was at the distance of 4/5 feet from the Accused persons. If that was so, he would have also been assaulted. He is not an injured eye witness. Since this is a group fight, the motive to kill is the same with regard to all the members of the opposite party. Hence, the Complainant would not have escaped it. The case of the Complainant that he was at the distance of 150 feet is, therefore, correct. It would have to be seen whether from the distance of 150 feet the incident that was described by him in which there were many assailants as well as at- least three parties of the other group, 2 of whom were fatally wounded, could have been precisely witnessed by him. Even if this was a case of an assault between one man upon another it may be too much to conclude precisely about the assault from the distance as stated by the Complainant. 18. The learned Advocate on behalf of the Respondents in this case in Appeal No.382 of 1990 has drawn our attention to the Police Station Diary Entry No.25, which is marked Exhibit- 44 in evidence showing that at 5.45 p.m. on that date one Bal Mahadeo Andhere reported that there was a 14 fighting between two parties at Nhave at the seed farm and hence, 3 to 4 Police persons were dispatched immediately for bandobast duty. These Police did not report any offence. They did not notice the altercation near the seed farm. If the incident, complained of by the Complainant, took place at 5.30 p.m. and Shantaram was fatally injured, that fact would have been reported to the Police at the time of the initial entry. Even after the Police was dispatched, as per the evidence of I.O., P.W.8 , no complaint was recorded by any of the Policemen on bandobast duty. 19. Of course, the station entry does show an altercation that happened between the two parties a little before 5.45 p.m. when the incident was reported. 20. It must be appreciated that the Complainant of the PPP, who made the complaint essentially against the Sarpanch himself, was an injured witness. Yet, he reached the Police Station after the opponent had lodged his complaint by 10.30 p.m. on that date, as shown in the Station Diary Entry No.30, Exhibit- 45, in evidence. The Complainant, in this case, who belonged to the Sarpanch party, witnessed the incident from afar and as per his evidence in Para- 2 in examination- in-chief itself got afraid and immediately ran towards the Police Station and lodged his complaint. Yet, his 15 complaint has been notified as Complaint No.31 recorded at 11.45 p.m. He was not an injured witness. 21. In the other case in appeal No.417 of 1990, the evidence of the Police Officer that the complainant deceased had all minor injuries shows that his key role in the incident as deposed by him is falsified. 22. The evidence of the Complainants in both the cases therefore, becomes difficult to accept. The rejection of their evidence by the learned trial Judge giving the benefit of doubt to the Accused cannot, therefore, be faulted. 23. The evidence of the other eye witnesses is similar. Though they mention about the Accused by numbers, who have been identified in Court and also mention about the weapons used by them, there is a discrepancy in the use of the weapons as reflected in their statements which amount to material contradictions. Consequently, the evidence of P.W.3 shows that they had not carried sticks in the incident. The people from the PPP were ahead of them. They were signalled to run away. He started running along with Mohan and Shantaram. The Accused were armed with sticks and chasing them. Shantaram was aged so he got tired and was stabbed near the culvert. He turned back and saw that 16 Accused No.1 gave a blow on his head due to which he fell. The other Accused started assaulting him. He hid in the house of Manohar Sawant. Manohar's wife told him that other persons have gone to Lonere. Therefore, he followed them. Manohar's wife has not been examined. He claims to have followed them after being beaten up by stick and after fleeing. He also feigned ignorance about the death of the three persons from the other group. His evidence is also not reliable. He did not give his statement to the Police. His statement was recorded after his arrest. In the other case, he has been attributed the role of having given a blow with Pharshi to Kashiram. Kashiram has expired. His evidence does not show the presence of Kashiram at all, who was the victim of his blow. 24. His evidence shows that when he had stopped near the canal, he turned back and saw Accused No.1giving the blow on the head of Shantaram, which caused him to fall. This shows that his eye witness account is like that of a chance witness. He witnessed the entire incident at precisely the time he turned around whilst running. Though his evidence shows that Manohar's wife told him that the Accused persons had gone to Lonere and, therefore, he followed them along with others and informed the Police about the incident suggesting that he went to the Police 17 Station on the same date, his statement was recorded only on 2.5.1986 i.e. 5 days after the incident. Though the investigation was started on 28.4.1986, the deposition of P.W.7, the first IO in the case, shows that his statement was not recorded on the date of the incident because he might not have been found by the Police and that he did not come to give his statement. This evidence, therefore, completely belies the evidence of P.W.3 about what he did after witnessing the incident. 25. The Police have recorded, inter alia, the statement of Vandana Manohar Sawant, Manohar's wife. However, she has not been examined. She would have been an independent witness who did not belong to either of the two parties. Her evidence would have shown the presence of P.W.3 at the time of the incident. In the absence of her evidence, the eye witness account of P.W.3 upon the chance that he got to witness the offence whilst running, cannot be accepted. This witness was arrested in the other cases which is under Criminal Appeal No.417 of 1990. He was arrested on 2.5.1986. Hence, there is a lot of substance in the argument of the Advocate for the Respondents that he gave a false statement in this case after his arrest in that case. In his cross- examination, the date of his arrest has been admitted by him. The specific overt act done by him in 18 the cross case has also been put to him in his evidence. He is stated to have given the second blow to Kashiram with a Pharashi. 26. The evidence of P.W.4 does not show him to be the eye witness of any assault. He only heard the voice of one Kalu as he was shouting. He saw several persons from the Sarpanch party, including Shantaram running towards the seed farm. He saw the persons from the Police Patil party chasing them with the sticks. He has not deposed about an assault on any Accused. His cross- examination shows that he was at a distance of 200 ft. from the temple where the incident relating to the death of the three persons from the Police Patil party