- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1300 OF 2003 AND CRIMINAL APPEAL No. 1413 OF 2003 *** CRIMINAL APPEAL No. 1300 OF 2003 Raju Raghunath Lohat ) Age 24 years, Occu.- ) Agriculturist, residing) at Maval, District Pune) At present lodged in ) Yerwada Central Prison ) Pune. ) Appellant Vs. The State of Maharashtra Respondent Mr. A. P. Mundargi, Sr. Advocate with Ms. Manisha Patel, Advocate for the appellant. Mrs. S. D. Shinde, APP for the respondent. *** CRIMINAL APPEAL No. 1413 OF 2003 1. Mr. Ganpat Khandu Lohat ) Age 27 years, Occu.- Agri.) R/o. Dharavi, Taluka Maval) District Pune. ) 2. Mr. Balkrishna Damodar ) Lohat, Age 23 years, Occu.- Agriculturist, R/o.Talegaon Dabhade, Taluka Maval, ) District Pune. ) 3. Mr. Shivaji Pilaji Mavkar ) Appellants Age 28 years, Occu. Agri. ) (Orig. Accused Tal. Maval. District Pune ) Nos. 1,3 & 4) Vs. - 2 - State of Maharashtra ) Through Vadgaon-Maval ) Respondents Police Station. ) Ms. S. D. Khot, Ms. Ameet Kuttikrishnan, Ms. Kunjal Patil and Mr. Uday Warunjikar, Advocates for the appellants. Mrs. S. D. Shinde, APP for the respondent. CORAM : SRI R.M.S. KHANDEPARKAR,& SRI. A.A. SAYED, JJ. DATE : JANUARY 31, 2008. ORAL JUDGMENT [PER : Sri R.M.S. KHANDEPARKAR,J.] . Since common questions of facts and law arise in both the appeals, they were heard together and are being disposed of by this common judgment. 2. The appellants in both the appeals have challenged the judgment and order dated 8th of October 2003 passed by the IVth Ad-hoc Additional Session Judge, Pune in Sessions Case No. 235 of 2002. By the impugned judgment and order all the four appellants have been held to be guilty of the offence punishable under section 302 read with 34 of I.P.Code, and they have been convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each, in default to suffer - 3 - rigorous imprisonment of three months. 3. The prosecution case is that the deceased Ulhas Ganpat Bhegade who was resident of Dahiwali, was the brother in law of the complainant Shankar Junraji Yeole, the Police Patil, resident of Waksai, taluka Maval. The deceased had a trax jeep and it was kept for repairs in Bhola garage at Wakasai. There was some dispute relating to the landed property between the relations of deceased on one hand and accused Ganpat Khandu Lohat on the other hand. The deceased had tried to intervene to settle the dispute. However, in the process there was a quarrel between himself and the said accused, some times in the month of October 2000. There was a case filed against the deceased alongwith others, and the same was pending in the Session Court at Pune. 4. On 12th February 2002 the deceased had been to Bhola garage during afternoon hours. On that occasion all the accused came to the said garage and threatened the deceased. However, on account of the intervention of Sham Nathu Bobhate, Kisan Thakor and some other persons, no - 4 - untoward incident took place. 5. On 13th February 2002 the deceased met the complainant and narrated the incident of the previous day. Thereafter both of them proceeded towards the garage. While the deceased remained in the garage, the complainant proceeded further to distribute the marriage invitation card in relation to wedding of his daughter. On his way to distribute the cards, the complainant heard shouts from Bhola garage and he therefore, rushed back to the said garage. He saw the accused assaulting the deceased with the weapons in their hands, as a result of which the deceased suffered severe injuries and died on the spot. After the assault, the accused persons ran away in a Fiat Car No. BLL 4127 towards Pune. During the incident some other persons gathered at the spot, including PW 6 Laxman Tukaram Vikare and PW 9 Mohan Yeole, PW 10 Dilip Jagtap. On the basis of report lodged by the complainant, C.R. No. 17 of 2002 was registered, and the investigation was conducted by S. S. Kadam, API of Lonawala (Rural) Police Station, and charge sheet was then filed against all the four accused persons. - 5 - 6. The prosecution examined 14 witnesses, including I.O., doctor, complainant, eye witnesses and panchas. Various documents including panchanama and C.A. report were produced and exhibited in evidence with the consent of the parties. The trial Court on analysis of the evidence held the appellants to be guilty of the offence punishable under section 302 read with section 34 of I.P.C. and sentenced the accused as stated above. Hence the present appeals. 7. The impugned judgment is sought to be challenged on various grounds. Firstly, it is sought to be contended on behalf of the appellants that PW 1 complainant who is stated to be the eye witness was not at all eye witness to the alleged incident and the same is apparent from his testimony. Besides, he is an interested witness in as much as that there was a criminal case pending against him at the instance of Ganpat and he had axis to grind against them, and therefore his testimony could not have been believed to hold the appellants to be guilty of the offence punishable under - 6 - section 302 of I.P.C. It is also sought to be contended that the complainant is undisputedly closely related to the deceased person. Besides he does not hail from the same village. His testimony consists of lot of improvements over the statement in the complaint and there is no explanation for non-disclosure of those facts in the complaint. The learned APP on the other hand submitted that the testimony of PW 1 gives detail account of the incident which itself could be sufficient to show that he was the eye witness to the incident and further that the said testimony could not be shaken or disproved in the course of cross examination. According to the learned APP the testimony of PW 1 is fully corroborated by other witnesses, more particularly PW 6 and 9 as well as PW 10, and therefore, merely because he happened to be a relative of the deceased, that could not be a justification to discard his testimony or disbelieve the same. 8. The law on the point that merely because witness happens to be a relative of the victim, his testimony cannot be discarded is well settled. Undoubtedly in such cases there - 7 - has to be proper scrutiny of testimony of such witness and there has to be efforts to ascertain whether the testimony finds corroboration from other materials on record, including the testimony of any other witness. 9. The sole ground on which the testimony of PW 1 sought to be discredited is the criminal case which was pending at the relevant time against the said witness along with his three brothers and the brother-in-law of the deceased on a charge of attempt to murder one of the accused Ganpat Lohat. Except the said ground, nothing is brought on record, nor any material could be pointed out which would reasonably create doubt about the credibility of the testimony of PW 1. As regards the said criminal case also, apart from pendency thereof, nothing could be disclosed which would reveal that on account of the said criminal case by way of counterblast or otherwise, the witness has deposed against the said accused person. 10. The testimony of PW 1 read with other materials on record including testimony of other eye witnesses, doctor and panchas and the - 8 - documentary evidence in the form of post mortem report, the panchanama and CA report, it is clearly established that Ulhas Bhegade was assaulted in Bhola garage on 13th February 2002 and on that occasion the complainant was hardly at a distance of 25 ft. or so from the said garage. The witness upon hearing the shouts from the said garage immediately rushed towards the garage and at that time he saw all the accused assaulting the deceased. The testimony of PW 1 specifically refers to overt act by each of the accused and the weapons used by each of the accused for assaulting the deceased. Though it was sought to be contended that there was improvement in that regard with reference to the complaint lodged by the witness, the record speaks to the contrary. The complaint specifically describes the incident with necessary details regarding the weapon that was being carried by each of the accused at the time of assault on the deceased. Indeed, there is absolutely no improvement in that regard. 11. The testimony of PW 1 finds thorough corroboration in the testimony of Dilip Jagtap (PW 10), who is stated to be a chance witness. - 9 - The fact that his house is situated opposite to the Bhola garage is not in dispute. The said wittness in his testimony has clearly stated that around 12 noon or so while he was infront of STD centre near his house, he heard shouts from Bhola garage, and therefore, he went in the said direction and on that occasion Ulhas Bhegade was lying in the pool of blood while the four accused proceeded with the weapons in their hand towards Fiat Car and further proceeded towards Pune in that Fiat car. He has also specifically described the weapon each of the accused was carrying and the said description given by PW 1 tallies with that in the police statement. 12. The testimony of PW 11 D Dnyaneshwar Bhikoba Adhav clearly establishes the injuries which were suffered by Ulhas Bhegade on 13th of February 2002 and cause of his death. The testimony of doctor describes the external injuries which were found on the body of the deceased as under- 1. Left forehead CLW 5" - 10 - 2. CLW on parital bone 5 1/2". 3. Lt. eye lower region to lower lips CLW 14x3". 4. CLW Lt.ear to Lt. side of nose nostrils 22 x 3 1/2". 5. Lt. ear cutting injury. 6. Lt. mandible bone # CLW on 1 x 3 1/2". 7. CLW Lt. parital 11 x 4". 8. Upper lips cutting injury. 9. CLW on Lt. eye, eye out. 10. Lt. forearm CLW 2 x 1/2". 11. Lt. handwrist Lt. CLW 3 x 1". 12. Rt. hand middle finger #. 13. Lt. scapula ribs CLW 7 1/1 x 5 1/2" 14. Abrasion on Lt. side scapula. 13. The internal injuries which were suffered by the deceased were to the skull and scalp. The cause of death was stated to be "Haemorrhage shock due to multiple injuries". The doctor has also opined that the cumulative effect of the injuries Nos. 1 2, 6, 7 and 8 and corresponding internal injury No. 19 was fatal and in the ordinary course of nature sufficient to cause death of the perspn. The injury Nos. - 11 - 3, 4, 5, 9, 10, 11, 12 and 13 were grievous in nature. He has further opined that injury Nos. 1 to 12 were possible by weapons like sickle and Sattur and injuries Nos. 13 and 14 were possible by iron rod or sticks. The doctor has categorically stated that injury Nos. 1 and 2 correspondent to scalp and skull fracture were also fatal and sufficient to cause death of a person in the ordinary course of nature. If one peruses the inquest panchanama, it apparently tallies with the list of injuries enumerated in the post mortem report and confirmed by the doctor. 14. The testimony of PW 1 read with that of PW 10 in no uncertain terms establish the fact that all the four accused had been to the Bhola garage on 13th of February 2002 during noon hours while Ulhas Bhegade was already there in the said garage and they had gone there with the weapons like Sattur, stick and iron bars with the intention to assault the deceased and all the four accused mercilessly assaulted said Ulhas Bhegade with the said weapon causing serious multiple injuries which resulted in his death on the spot, and after assault all the - 12 - four persons with their weapons ran away from the spot in the Fiat car bearing No. BLL 4127. The testimony of PW 11 doctor establishes the injuries which were suffered by Ulhas Bhegade on account of said assault and the cause of his death was the said injuries suffered during the assault. 15. It would also be worthwhile to refer to the testimony of PW 4 Ashok Somnath Khedkar, a panch witness in relation to the panchanama of the Fiat Car No. MLL 4127, which had met with an accident near Shikrapur petrol pump, on Nagar-Pune road wherein undisputedly all the four accused were travelling at the relevant time and two of them namely Ganpat and Balkrishna Lohat were injured in the accident, which took place on 15th of February 2002. Another piece of evidence which is also necessary to be referred is the evidence regarding attachment of clothes of the accused and C.A. report in respect thereof, as well as that of the blood grouping of the accused persons. Exh. 80 the C.A. report clearly reveals the examination of clothes of all the accused which were seized in the course of - 13 - investigation. The pant and shirt of Raju as well as Balkrishna, shirt of Shivaji and that of Ganpat, all were stained with blood and it was human blood with "AB" grouping. 16. As regards the clothes and blood grouping and the C.A. report in that regard, it was sought to be contended on behalf of the appellant that blood grouping report as regards the blood of the deceased was inconclusive and therefore, the blood grouping report of the accused persons and the blood stains found on the clothes of the accused, could not be of any help to prosecution to contend that those blood stains were of the blood of the deceased. The contention however, cannot be accepted for more than one reason. 17. It is nobody’s case that apart from the injuries which were suffered by two of the accused persons namely Ganpat and Balkrishna in the Fiat car accident on 15th of February 2002, any of the accused had ever suffered any injury or had occasion to suffer any injury during the period from 13th of February 2002 till the time when the clothes were attached by the police. - 14 - At the same time in the accident which had occurred on 15th of February 2002 bleeding injury was sustained only by Ganpat and none other. There is nothing on record to suggest that the blood of Ganpat had sprinkled on the clothes of other accused persons as a result of the said accident. The damage which was suffered by the car was to the extent of bending of mud-guard and destruction of the left side head lamp. In these circumstances and taking into consideration the other evidence on record in the form of testimonies of PW 1, PW 10 and PW 11 and also that of PW 4 and PW 9, it leaves no scope for doubt that blood stains which were found on the clothes of the accused person were caused in the course of merciless assault on Ulhas Bhegade by all the four accused. The nature of the injuries which were suffered by Ulhas in the course of assault hardly leaves any room to doubt that the blood stains were caused in the course of assault and were from the body of Ulhas. Being so, though the result of the blood grouping of the deceased has been inconclusive and merely because all the accused persons are of "AB" blood group, in the facts and circumstances of the case we are of the - 15 - considered opinion that the materials on record taken together clearly establish that the blood stains which were found on the clothes of the accused were of the blood of the deceased. It is pertinent to note that none of the accused, when the fact of attachment of the clothes and the C.A. report in respect thereof was brought to their notice came forward with any explanation in an answer to the question in that regard in statement under section 313 Cr.P.C. 18. The testimony of PW 10 is sought to be assailed on the ground that his statement was recorded nearly 15 days after the incident. Referring to his claim that he was present at the time of incident and he was on the spot for about 3 hours, that the police had arrived at the spot while he continued to be there, it was sought to be contended that there was no satisfactory explanation coming from the witness and the prosecution as to what prevented the investigating agency from recording his statement immediately after the incident and what prevented the witness from revealing the fact of his presence at the site to the police when they had arrived at the spot immediately - 16 - after the incident. In that regard the claim that he did not disclose his knowledge about the incident to the police on account of his mental condition was sought to be ridiculed on the ground that it was purely after-thought and no normal person would have hesitated to inform the police about his knowledge of the incident immediately thereafter. There is no presumption that all the persons would act similarly in similar situation all the time. Individual reaction to any incident depends upon various factors. It is neither uniform nor similar. Merely because one person reacts in a particular manner in a particular situation, it does not necessarily mean that all other persons or even few of them would necessary react all the time or even some times in the similar nature in similar situation. Considering this varying nature of human beings, merely because PW 10 chose to remain silent for 15 days without disclosing to the police whatever he had seen on 13th of February 2002, that itself cannot be a ground to discredit his testimony. Albeit his testimony will have to be scrutinized carefully and it has to be ascertained whether the testimony finds corroboration from other - 17 - materials on record. 19. If one peruses the testimony of PW 10 Dilip Jagtap, one important thing which has been established beyond doubt is that he is residing in a house, situated opposite to Bhola garage i.e. the place of incidence. It is pertinent to note that though various suggestions denying the statements made by the witnesses were made to the witness in the course of cross examination, one important fact stated by the witness was not challenged at all and that is at the relevant time the witness was standing near the STD booth which is situated next to his house. Once this fact is not disputed and is clearly established, all other arguments which are sought to be canvassed in an attempt to discredit the testimony of PW 10 falls flat to ground. The very fact that the witness was present across the road from the place of incident would reveal that the witness had sufficient opportunity to witness the incident. It is further to be noted that the witness has described the accused persons as well as weapons which they were carrying and the manner in which they left the place after the incident. It is - 18 - also undisputed fact that consequent to the assault on the deceased a crowd of about 400 people gathered at the site. However, investigating agency in its wisdom and rightly so, did not make any attempt to multiply the witnesses merely by recording the statements of those who had come to the site after the incident. Inspite of the fact that so many people had gathered at the site at the time of incident, on thorough investigation the investigating agency sought to rely upon the person who had actually witnessed the incident, discloses the genuineness in the testimony of the PW 10. The witness does not appear to have exaggerated anything about the information which he could gather on the occasion and the witness has been fair enough to disclose the fact that prior to the incident he had no detail knowledge about the accused persons though he knew them by faces, being the resident of the neighbouring locality. Being so, merely because witness had not come forward to give his statement on the very day, that would not be a sufficient ground to discredit his testimony. 20. The case putforth by the prosecution - 19 - against the appellant also gets support from the testimony of PW 9 Mohan Yeole. Undoubtedly the witness was declared hostile and it is fairly submitted by the learned counsel for the appellant that merely because witness is declared hostile, that cannot be a justification to discard his testimony. The court will have to analyse testimony to ascertain whether the witness has revealed the facts which could find corroboration from other materials on record. As already observed above, the testimony of other witnesses clearly lend support to the prosecution case against the accused person. In the background of those testimonies, if we analyse the deposition of PW 9 undoubtedly in some respect it is not consistent but that is not the case in relation to all the facts which have been otherwise established by the prosecution through other witnesses. The fact that the incident occurred on 13th of February 2002 in Bhola garage wherein the deceased was assaulted by four accused and pursuant to the shouts, the witness had occasion to rush towards the spot, has been clearly established by his testimony and the narration of facts in that regard by witness clearly finds corroboration by - 20 - the PW 1 as well as PW 10. The fact that the accused left the spot in a Fiat car while witness was standing near Bhola garage is also clearly established through his testimony. Considering the same, the contention that his testimony stands totally discredited and unbelievable, cannot be accepted. 21. It was strenuously argued on behalf of the appellant that in the statement under section 161 Cr.P.C. role of each accused was not stated. The contention is contrary to the materials on record. Not only the complaint discloses the role of each of the accused, the same has been clearly described by PW 1 as well as PW 10 and gets support from the medical report comprised in testimony of PW 11 read with post mortem report. As already observed above, the appellants have not been able to discredit the testimony of PW 1 and PW 10 in this regard in any manner. The contention that the witness is the relation of the deceased and on that ground his testimony is clearly a partisaned testimony, is totally devoid of substance for the reasons stated above. - 21 - 22. It was also sought to be contended without prejudice to other contentions raised in the appeal that all the four appellants/accused should not be made to suffer imprisonment, more particularly in view of the fact that the witness had allegedly an axe to grind against the appellants as he was facing criminal trial, on account of complaint lodged by one of the accused. As already observed above, merely because the witness was facing criminal trial, it cannot be a justification to disbelieve his testimony, which is otherwise fully corroborated by other materials on record and it cannot be said that it is a case of sole eye witness. 23. Much ado was sought to be made about failure on the part of investigating agency to conduct the identification parade of the accused, particularly in relation to PW 10. Attention was drawn to the statement of the witness to the effect