1 apeal-765-03 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.765 OF 2003. 1) Sultan Husen Gorame,Indian inhabitant residing at Salav, Taluka Alibag, District Raigad. 2) Ramesh Kamalya Gaikar,Indian Inhabitant, residing at Mithekhar, Taluka Murud, District Raigad. 3) Sandeep Haribhau Satamkar,Indian inhabitant, residing at Mithekhar, Taluka Murud, District Raigad. 4) Anand @ Anya Mahadev Jadhav,Indian Inhabitant, residing at Mumbai. 5) Arun @ Arunbhai Dattu Chavan, Indian Inhabitant, residing at Mumbai. 2 apeal-765-03 6) Kashinath @ Kashya Haribhau Satamkar @ Barkya Dada, residing at Mithekhar, Murud, District Raigad. ..Appellants (Orig.Accused Nos. 4, 10,11,13,14 and 17) Versus. The State of Maharashtra. Respondent. WITH CRIMINAL APPLICATION No.756 OF 2009 Arun @ Arunbhai Dattu Chavan, Indian Inhabitant, residing at Mumbai. Through Jail Applicant (Appellant No.5 in Appeal No.765/2003) Versus. The State of Maharashtra. ..Respondent. Mrs Latika Narverkar for Appellant No.3. Shri Avinash Rasal (original Accused Nos.13 and 14) Shri Mobin Solkar, Advocate for Appellant No.1. 3 apeal-765-03 Shri Yug Mohit Chaudhary, Advocate for Appellant No.17. Shri Rahul S.Thakur, Advocate for Respondent No. 2. Dr F.R.Shaikh, A.P.P.,for the State. CORAM: BILAL NAZKI, AND A.R.JOSHI,JJ RESERVED ON: 10/09/2009 DATED : 9TH OCTOBER, 2009 JUDGMENT (Per A.R.Joshi,J) 1. Present Criminal appeal is preferred by the appellants (original accused Nos. 4, 10,11,13,14 and 17) challenging their conviction dated 7th May, 2003 passed in Sessions Case No. 79/1993 by the learned Ad hoc Additional Sessions Judge, Raigad. By the said impugned judgment and order though total 18 accused were tried for the offences punishable under Sections 147,148, 149 and 302 of the Indian Penal Code (IPC) and also for the offence punishable under 4 apeal-765-03 Section 25 (1)(c)of the Arms Act, only present appellants were convicted. The present appellants were mainly convicted for the offences under Sections 148,149, 302 of the IPC and were sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/- each in default to suffer R.I.,for two years each. They were also sentenced to suffer R.I.,for five years each and fine of Rs.5,000/- in default R.I.,for two years for the offence punishable under Section 148 of the IPC. No separate sentence was imposed for the offence punishable under section 149 of the IPC. It is significant to note that all the appellants were acquitted of the offence punishable under Section 25 (1) (c) of the Arms Act and Section 506 (II) read with section 149 of the IPC. The substantive sentences imposed against the appellants were directed to run concurrently. Reportedly, during the pendency of the trial before the Sessions Court all the appellants were on bail. After the conviction, 5 apeal-765-03 they were taken in custody and during the pendency of the present appeal they were not released on bail by this Court and as such are in jail. 2. Prior to appreciating the arguments advanced on behalf of the appellants by different learned Advocates, the case as unfolded before the Sessions Judge, summary of the prosecution evidence led before the Trial Court got narrated in order to have proper perspective of the matter. 3. The incident of assault and consequential leading to the murder of one Vishnu Achrekar, a local member of Shivsena political party, is fall out of the poltical rivalry in Revdanda, Taluka Alibag, between the members of two political parties; namely, Shivsena and Shetkari Kamgar Paksha i.e., peasants and workers party. 4. The appellants-accused along with their other associates i.e., acquitted accused were 6 apeal-765-03 the members of the peasants and workers party, whereas the deceased and other witnesses and mainly alleged three eye-witnesses P.w.Nos. 1, 2 and 3 were members belonging to Shivsena party. Admittedly, there were various litigation between such members of political parties and many of them have been convicted for the assault, murder and some such offences committed against the members of the other party. So far as the present incident is concerned, it arises in the evening of 13th February, 1991 within the premises of one company by name Vikram Ispat Grasim Company. The said company had acquired some land from the villagers of village Revdanda area for the purpose of construction of various projects and price was settled between the Management of the Company and the leaders of the Peasants and Workers party who had control over the land owners/villagers. Apparently, this transaction was not approved by the local leaders of Shivsena party, so far as the amounts 7 apeal-765-03 were concerned. On the fateful day i.e. On 13th July, 1991 the deceased Vishnu Achrekar had gone to the office of said Grasim Company along with his Supervisor, one associate Ashok Naik (PW 2) and after the meeting they went to the house of one Sharad Gondhli (PW1) after taking the meals on the request of Vishnu Achrekar, he was taken to the site at village Chehar where the working of taking measurement and levelling for the construction was going on. He was taken there by P.W.1 in his auto rickshaw. The time was about 4:45 to 5:00 p.m. By that time on motor-cycle the appellants-original accused Nos. 11, 14 and 17 came to the spot and had assessed the situation and the presence of the deceased. Thereafter, the said accused went and returned within ten minutes to the spot. They were followed by the auto rickshaw in which other five accused were sitting. As such eight accused persons gathered on the spot. They started approaching towards the deceased. 8 apeal-765-03 Accused were armed with weapons, swords, knives, sword-sticks (Guptis), accused No.14 was armed with revolver and also with sword. Some of the accused were armed with iron bar and sharp edged weapon like knives. The accused persons gave threat to the persons standing near the deceased. One couple working there as labourers were also threatened of dire consequences and said couple ran away. So also the persons accompanying the deceased ran away from the spot. Accused gathered there, assaulted the deceased with swords, stick-sword (Gupti) iron bar and knife. Admittedly, no fire arm was used to open fire on the deceased but was only used to cause the terror in the atmosphere. Multiple injuries were inflicted on the deceased as a result he fell down in a pool of blood. According to the case of the prosecution, P.W.1 Sharad Gondhali informed one Suresh Mhatre about the incident and said Suresh Mhatre informed the police person of Revdanda Police Station 9 apeal-765-03 regarding assault on Vishnu Achrekar. Police party reached the spot and found Vishnu Achrekar in severely injured condition. However, he was alive. He was taken to dispensary but was declared dead on arrival. Crime was registered at C.R.No.19/1991 mainly for the offence punishable under Sections 302, 147 and other allied offences. 5. During investigation of C.R.No.7/1991 statements of various witnesses were recorded including P.W.1, 2 and 3 as alleged eye- witnesses. In fact, it appears that statements of P.W.1 was initially treated as F.I.R., which is Exh.99. P.W.1 is Sharad Gondhali who happened to have witnessed the said incident for the first time and narrated it to Suresh Mhatre and also according to the case of the prosecution, said Sharad Gondhali gave his complaint to the police and on the strength of his complaint, F.I.R.,was lodged. 6. During investigation various panchnamas 10 apeal-765-03 were drawn including the inquest, scene of offence and recovery of clothes of the deceased etc. Certain weapons such as swords, knife and revolvers / pistols were recovered under the panchnamas from certain accused persons. Details of which shall be mentioned at the appropriate place. Accused persons were arrested on different dates and certain clothes were taken charge of. Auto rickshaws and Maruti van which had purportedly carried three accused persons was also taken charge of by the police. At this juncture, it must be mentioned that the original accused Nos.12 and 20 could not be found and they were declared as absconding and still today they are not available for trial and as such they were not tried before the Sessions Court. 7. During the investigation, post mortem notes were obtained. On completion of investigation charge sheet was filed before the J.M.F.C., Revdanda and the case was committed to the Court of Sessions being Session Case No. 11 apeal-765-03 79/1993 and was disposed of by the impugned judgment and order. 8. Total 15 prosecution witnesses were examined. The summary of their evidence is as under: 9. P.W.1 is the first informant, alleged eye-witness who happened to be present on the spot when the appellants along with their associates arrived in auto rickshaw and motorcycle and started assaulting on deceased Vishnu Achrekar on the relevant evening. It appears that said P.W.1 and also P.W.2 and 3 had given the account of the entire assault and the role played by the specific accused who were convicted and who are the appellants now. The F.I.R.,lodged by P.W.1 is at Exh.99. P.Ws. 2 and 3 are another two eye-witnesses who deposed on the same line as the evidence given by P.W.1. It is significant to note that the statement of P.W.2 was recorded by the police after about 24 hours in the night of 14.2.1991. Prior to that 12 apeal-765-03 he did not disclose the incident to anybody even to his family members or even to his other friends. Similar is the situation regarding the statement of P.W.3 who also did not disclose the alleged witnessing the assault to the police at the immediate opportunity. Such factual position is significant when admittedly both the said P.W.Nos. 2 and 3 are the active members of Shivsena party to which the deceased and also the complainant P.W.1 belonged and admittedly they had rivalry with the appellants and other accused who were the members of peasants and workers party. P.Ws.2 and 3 had also given the specific role played by each appellant while assaulting the deceased and the same role is in fact in consonance with the statement made by P.W.1-complainant. P.Ws.4 and 5 are the panch witnesses respectively for the inquest and spot panchnama. P.W.6 is one more panch in whose presence allegedly the auto rickshaw was seized under the panchnama Exh.116. According to him, 13 apeal-765-03 in the said auto rickshaw some blood was found and the samples were taken. P.W.6 also took part in the another panchnama Exh.118 during which shirt of appellant-Accused no.10 was taken charge of. So also, he is a panch for the panchnama Exh.119 during which the motor cycle allegedly used by the appellants was seized. P.W.7 is the panch regarding arrest of accused Nos. 7 and 8 it may be mentioned that these accused were acquitted. P.W.8 is panch regarding alleged voluntary statement of the appellant accused no.11 made on 6th March, 1991 and under which accused No.11 produced three swords, one dagger, one pistol, two cartridges under the panchnama exh.127. At this juncture, it may be mentioned that the role attributed to accused No.11 by the complainant and P.W.2 and 3 as to use of swords, stick (Gupti) and assaulting the deceased on his head. It is also significant to note that no any pistol or revolver was actually used for firing in the 14 apeal-765-03 incident and that no role was given to accused no.11 as to he was holding any pistol during the incident. P.W.9 is the panch regarding alleged memorandum panchnama Exh.133 regarding voluntary statement of accused no.14.In furtherance of said statement, one pistol was recovered under the panchnama Exh.134 from beneath one mango tree. P.W.10 is another panch regarding memorandum statement made by the appellant- accused no.17 and in furtherance of the said statement allegedly there is recovery of one pistol and one knife under the panchnama Exh. 137. At this juncture, it may be mentioned that no blood was found from the weapons recovered at the instance of accused No.11 and accused No.17. P.W.10 is the Special Executive Magistrate who conducted Test Identification parade (T.I.Parade) on 19th March,1991 in which P.W.2 and 3 identified the appellants accused Nos. 13 and 14. According to the case of the prosecution, original accused Nos. 4, 10 and 11 15 apeal-765-03 and 17 were known to the prosecution witnesses, whereas accused Nos. 13 and 14 were strangers to them and as such accused Nos.13 and 14 were put to test identification and were identified by P.Ws.2 and 3. It must be mentioned that such T.I.,parade was conducted after about one month and six days of the incident. P.W.12 is Dr Jagdale who conducted post mortem on the dead body of the deceased on 14.2.1991. P.W.13 is A.P.I. Vinod Chavan. According to him, accused no.17 made a statement and produced his shirt. It must be mentioned that memorandum and recovery panchnamas were originally marked at Exhs.143 and 144 through the evidence of said P.W.13 without there being examination of the panch witness and as such in our view such panchnamas cannot be taken as an acceptable evidence so far as accused No.17 is concerned. For want of substantive evidence of panch witness. P.W.14 is another police officer P.S.I. Shri Ganpat Chavan then attached to 16 apeal-765-03 Revdanda police station during the incident and according to him one witness Suresh Mhatre came and deposed as to assault on the deceased Vishnu Achrekar by pen knife. This is the witness who caused recording of the station diary at 18:15 hours on the day of the assault. The said station diary has been produced and proved by the said witness and which is at Exh.193. At this juncture, it must be mentioned that much emphasis has been placed on the contents of such station diary, inasmuch as it did not disclose names of any of the assailants and according to the defence said station diary entry should have been treated as F.I.R.,instead of the subsequent statement of P.W.1. Said aspect shall also be dealt hereunder at the appropriate stage while discussing the defence of the accused by which the substantive evidence of P.W.1 complainant, is vehemently assailed. The substantive evidence of said P.W.1 also goes to show that he directed posting of the copy of the F.I.R.,to 17 apeal-765-03 Murud post office for sending it to the Judicial Magistrate, First Class at Murud. Such copy of the F.I.R., was posted on 16.2.1991 though allegedly F.I.R., was registered on the night of 13.2.1991. This aspect was also emphasized on behalf of the appellants in order to canvass the proposition that the story of P.W.1, 2 and 3 witnessing the assault was subsequently concocted as an after thought by due deliberation and thereby taking the names of the appellants as the assailants due to political intervention. Last prosecution witness is P.W. 15 Circle Police Inspector to Revadanda. According to him, the report of the F.I.R., was received by the J.M.F.C.,Murud on 19.2.1991. 11. Main thrust of the case of the prosecution is based on the substantive evidence of P.W. 1, 2 and 3 i.e., the alleged eye- witnesses as to involvement of the appellants. According to these witnesses, specific roles 18 apeal-765-03 were assigned to the individual appellants. According to these, witnesses accused No.14 caught hold of the deceased and also assaulted him with sword. P.W.10 assaulted by means of a knife. P.W.11 assaulted the deceased on his head by means of sword-stick (Gupti), accused No.13 used iron bar for the assault, accused no.4 used some sharp edged weapon. According to the witnesses, he came on the spot driving the auto rickshaw and bringing his other associates. Accused Nos. 12 and 20 assaulted the deceased by means of swords. These are the accused who were not tried as till today they are absconding. By pointing out this substantive evidence of P.W. 1,2 and 3 it is strongly submitted by the learned A.P.P., for the State that there is nothing to view the substantive evidence of these witnesses differently than viewed by the Trial Court and as such apart from anything else in the matter so far as involvement of the appellants is concerned, the conviction of the 19 apeal-765-03 appellants need not be interfered, further argued. 12. Admittedly, there are no independent witnesses examined though it is allegedly the prosecution case that one labour couple was working on the site during the incident and they were threatened by the accused and accordingly they ran away from the spot. Though the reason has been given by the Trial Court as to non- examination of said couple for want of their addresses and whereabouts subsequently after about ten years of the incident, the fact remains that apart from P.W.1,2 and 3 there is no witness for the prosecution as to the incident of assault. In that event, it is to be ascertained by us as to whether the Trial Sessions Court has properly appreciated the substantive evidence of these witnesses. It is also to be seen by us whether the false implication of the appellants accused is probable on preponderance of probability merely 20 apeal-765-03 considering the factual position as to PW.1 narrating the incident immediately after the assault to one Suresh Mhatre and said Suresh Mhatre giving an intimation to Revdanda police station and that time not knowing the names of the assailants and informing the police that the deceased Vishnu Achrekar was assaulted by means of a knife. On this aspect, it is significant to note that admittedly, said Suresh Mhatre was not examined by the prosecution though admittedly his statement was recorded by the police. The extract of the relevant station diary entry Exh.193 as to its English translation can be reproduced with advantage in order to consider the arguments advanced on behalf of the appellants. Said station diary reads as under:- Sr. No. Time Record Particular 21 apeal-765-03 40 18:15 Register ed Suresh Ramchand Mhatre R/o Salav has came to the Police station and personally informed that at the salav Grasim Company s premises, Vishanu Rudraji Achrekar has been stabbed with a pen knife. Suresh Mhatre has told the Police to go to the spot and confirm this. Then police constable No. 1449, Police Patil 649, Police Patil 1133 and Kadam went immediately to the crime spot in a rickshaw. After reaching at Salav Grasim Company we saw wounded Vishnu Rudraji Achrekar R/d Chaul in an unconscious condition and took him for medical treatment to Borli. At Borli the Medical Officer declared that Achrekar is dead. Then We came back to the Police Station . 13. Considering the above contents of the station diary entry, it must be said that a reasonable doubt has been created where P.W.1 had really witnessed the incident and had 22 apeal-765-03 noticed the appellants accused Nos. 4, 10,11 and 17 assaulting the deceased in association with other accused Nos. 13 and 14. 14. Again, at the cost of repetition, it must be said that though P.Ws. 2 and 3 also allegedly witnessed the incident of assault in the afternoon on 13.2.1991, they did not disclose the said incident to anybody, even to their close relatives, or even to other party workers to which these witnesses belong. As submitted on behalf of the appellants-accused, this conduct of P.Ws. 2 and 3 does not sound to reason and logic and creates a doubt whether they had in fact witnessed the incident. On this aspect, it is submitted on behalf of the appellants that the natural conduct of a witness is to disclose the incident, when the incident is of such a grave nature as to deadly assault on his known person and party worker and to ask for help and to make it immediately aware to the police. The conduct of P.W.2 and 3 coupled 23 apeal-765-03 with the factual position as to J.M.F.C.,Revdanda receiving the copy of F.I.R., on 19.2.1991 when such copy was also belatedly sent by the police on 16.2.1991, goes to show that there is a possibility of concoction as to name the accused persons on political rivalry and in that view of the matter the defence of the appellants-accused can be accepted on preponderance of probability. 15. On the aspect as to belated disclosure of the alleged incident of assault, an explanation has been given by P.W.2 during his cross-examination contained in para 20 of the notes of evidence, he gave reason for not such immediate disclosure as he was frightened. According to him, as the deceased Achrekar was murdered in front of him he got frightened. Considering that on the next day when he attended funeral of deceased Achrekar and also had been to the house of said Achrekar he did not inform family members of Achrekar disclosing 24 apeal-765-03 the names of the assailants. During further cross-examination P.W.2 did accept that he wanted that the assailants should be punished and it also accrued to him that the assailants should be arrested immediately but still it did not occur to him that he should disclose the fact to somebody as he was afraid of his life. Such explanation is not plausible considering the status of said witness as a party worker and allegedly witnessing the deadly assault on his party fellow. In fact, similar is the situation so far as the substantive evidence of P.W.3 is concerned and it must be said that the Trial Court had erred in accepting their evidence as trustworthy, when apart from such substantive evidence, there is no other corroboration to the case of the prosecution as to involvement of the appellants by way of recovery of weapon and use of such weapons in the assault. 16. In view of the above discussion, in our view, it cannot be said that the prosecution has 25 apeal-765-03 reached to that stage of bringing the evidence as against the appellants-accused for establishing of the charges beyond reasonable doubt. Again, in that view of the matter, in our view, the benefit of doubt must go in favour of the appellants-accused and as such the impugned order is required to be set aside. Hence, the order. ORDER (1)Appeal No. 765/2003 is allowed. (2)Appellants (original accused Nos. 4, 10,11,13,14 and 17)are acquitted of the offence punishable under Sections 147, 148, 149 read with Section 302 of the Indian Penal Code. (3)The appellants who are in jail, they shall be released from jail custody if not required in any other matter. The bail bonds of the appellants, who are on bail, shall 26 apeal-765-03 stand cancelled. (4)In view of the order in the present appeal, Criminal Application No. 756/2009 preferred by the Appellant  original accused No.14 does not survive and as such is disposed of. (BILAL NAZKI,J) (A.R.JOSHI,J)