1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 270 OF 2003 SHRI ANANTA JANARDAN PATIL ) Aged 23 Yrs., Occ: Agriculturist, ) R/o. Village Vakalan, Tal. Thane, ) Dist. Thane. ) (All at present serving the sentence of ) rigorous imprisonment at Thana Jail) ).. Appellant. (Org.Accused No.13 ) Versus The State of Maharashtra ) .. Respondent. -: ALONG WITH :- CRIMINAL APPEAL NO. 285 OF 2003 1) DINKAR BALKRUSHNA PATIL, ) Age 32 years. ) 2) DEEPAK BALKRUSHNA PATIL ) Age 20 years. ) 3) MANOHAR BALKRUSHNA PATIL ) Age 27 years. ) 4) ROHIDAS SAKHARAM PATIL ) Age 30 years. ) 5) SUNIL RAMA PATIL ) Age 26 years. ) 6) GANESH RAMA PATIL ) Age 23 years. ) 7) SANDEEP @ PAPPA BALKRUSHNA ) PATIL, Age 25 years. ) 2 8) RAMA HARI PATIL ) Age 50 years. ) 9) ANANTA JANARDAN PATIL ) Age 22 years. ) (Appellant No.9 (Orig. Accused No. ) 13) deleted vide Court' s order ) dated 11-3-2003) ) 10) SADANAND BOKYA PATIL ) Age 29 years, ) 11) MOTIRAM BOKYA PATIL ) Age 29 years, ) 12) SHANKAR BABU PATIL ) Age 64 years, ) 13) SANDESH SHANKAR PATIL ) Age 21 years, ) 14) ANANTA BALKRUSHNA PATIL ) Age 40 years, ) 15) NARESH RAMA PATIL ) Age 20 years, ) ... Appellants All residents of Vaklangaon, Dist. Thane )(Orig. Accused Nos. 1, 2, 5, (At present in Central Prison, Thane). )6, 9, 10, 11, 12, 18, 19, 22, 23, 24 and 25) Versus The State of Maharashtra. .. ) .. Respondent. (Orig.Complainant) Mr. S. R. Chitnis, Sr. Counsel with Mr. S. V. Kotwal for the Appellants in Cri.Appeal No.285/2003 and Cri. Appeal No. 285/2003. Mr. S. V. Gavand for Appellants (Original Accused Nos. 6, 9, 10, 12, 13, 18, 22, 23 and 25). Mr. B. R. Patil with Mr. S. L. Sakpale for Original Complainant. Mr. P. S. Hingorani, APP for the State. 3 CORAM : BILAL NAZKI and A. R. JOSHI, JJ. RESERVED ON : 12TH FEBRUARY, 2009 PRONOUNCED ON : 12TH AUGUST, 2009. JUDGMENT (Per Bilal Nazki, J.): Prosecution case was that on 26th May, 2001 at 4.00 p.m. in front of the house of one Dnyaneshwar Patil at Village Valkan, Tal. District Thane when the deceased Ananta Bhoir was returning in an auto rickshaw, his auto rickshaw was forced to stop by putting in front another auto rickshaw driven by accused No.7. The auto rickshaw carried two persons other than Ananta Bhoir by name Ratan Mhatre and Ananta Balku Kharpatil. It was being driven by one Balkrishna Keshav Patil. 4 to 5 persons came out of the other auto rickshaw which stopped the auto of the deceased. About 20 to 22 other persons were hiding behind the nearby cactus and all these persons were armed with swords, iron rods, sickles, knives and all of them mercilessly attacked Ananta Bhoir and caused him grevious injuries on all parts of his body. On the basis of these allegations, charges were framed against the accused under Sections 147, 148, 149, 4 341, 323, 324, 504, 506 and 302 of the Indian Penal Code and under Section 25(1)(A) of the Arms Act. The accused pleaded not guilty and were tried. Prosecution examined 15 witnesses. The trial Court by its judgment dated 21st February, 2003 convicted accused Nos. 1, 2, 5, 6, 9, 10, 11, 12, 13, 18, 19, 22, 23,24 and 25 for the offences punishable under Sections 147, 148, 149, 341, 506 and 302 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for six months for the offence punishable under different sections and also to suffer rigorous imprisonment for life for the offence punishable under Sections 149 with 302 of the Indian Penal Code. 2. When these appeals came to be listed before a Bench of this Court for final hearing on 22nd February, 2007, the Court was of an impression that a full and complete attempt to arrive at the truth had not been made by the prosecution. Therefore, the Court passed an order under Section 391 of the Criminal Procedure Code directing recording of statements of five witnesses who had been cited as witnesses but whose statements had not been recorded as the learned Public Prosecutor appearing before the trial Court had given up these witnesses. This Court also directed examination of Investigating Officer PW 15. The matter was remanded back to the trial Court. The trial Court has recorded the 5 statement as per the order of the High Court and has also recorded the statement of the accused under Section 313 of the Criminal Procedure Code and the matter has come back for hearing. 3. At the outset, learned Senior Counsel appearing for the appellants submitted that out of 15 witnesses originally examined by the prosecution, PW1, PW 2, PW 3 and PW 4 were projected as eye witnesses and these witnesses had not deposed anything against the accused which could justify their conviction. He further submitted that even the finding by this Court in its order dated 22nd February, 2007 was that the prosecution had not brought the whole truth before the Court. Now in addition to these witnesses, the prosecution has also examined after remand another 5 witnesses. So in all there are 9 alleged eye witnesses to the occurrence and according to the learned Counsel appearing for the accused persons, on the basis of testimony of all the 9 witnesses, the prosecution would not succeed. 4. PW 1 – Eknath Dinkar Bhoir, is the brother of the deceased. He stated that the deceased was an Ex-Corporator of New Bombay Municipal Corporation. Prior to May, 2001 marriage of deceased's daughter Sangita was arranged at Vaklan. Halad ceremony was arranged prior to the marriage. He and his another brother Gurunath were present 6 in the pendal at the time of the Haldi ceremony. A quarrel had taken place in the pendal between the persons belonging to Dinkar Balkrishna Patil and them in respect of dancing. His deceased brother was at home at that time. Somebody informed him about the quarrel and hence his brother arrived at the pandal. He requested all the persons not to quarrel at the time of marriage. He also suggested summoning a panchayat for settling the dispute. After one month a panchayat was summoned in a Hanuman Temple. But, accused no.1, Dinkar Patil, was not ready to accept the decision given by the panchayat, since he had sustained damages at the hands of Excise Officials. He threatened the deceased with dire consequences if his damages were not adequately compensated. Occurrence took place on 26th May, 2001 at about 4.00 p.m. The deceased had gone to admit brother of Ratan Mhatre in the hospital, whose name was Vasudeo. He had to be admitted in E.S.I. Hospital at Vashi. While returning, when he reached near the house of Dnyaneshvar Rama Patil, the accused Dinkar Patil, Manohar Patil, Anant Patil, Sandip Patil and others encircled the deceased. They were armed with swords, sticks, iron rods, choppers and sickles. They assaulted the deceased Ananta Bhoir by the said weapons. Shankar Patil and Balkrishna Patil were instigating others not to leave the Corporator and sever him into pieces. 7 The witness claimed that he had seen the incident personally. Then he stated that when he went to the spot, his brother was lying in a pool of blood. The assailants were still assaulting him. Accused Dinkar Patil ran to assault him, but his nephew Shanivar Patil asked Dinkar Patil not to assault him. He knew all the accused sitting before the Court. All of them had assaulted his brother. Thereafter, he took his injured brother to Shilphata Police Outpost in his vehicle. Laxman Patil and Ratan Mhatre accompanied him to the police outpost. Police referred deceased to Civil hospital, Thane, for medical treatment. After sometime, his brother succumbed to his injury. He lodged F.I.R. of the incident, which bore his signature and Exhibited as Exh.41. The 5 swords, 4 sticks, 3 choppers and 3 iron rods were identified by him and they were marked as Articles A-1 to A-15. In his cross-examination, he said that he was running grocery shop at Vaklan. From main road, if one has to go to Vaklan, one has to go 5 Kms. There are 2 to 3 villages on the road to Vaklan. There are agricultural lands on both sides of Vaklan Road. He could not say the width of the road. At the beginning of the village, the house of Dnyaneshwar Patil is situated. It is on road side at the distance of 20 to 25 ft. from the edge of the road. He could not say whether there were cactus 8 bushes on both sides of the road. He could not recollect as to whether there were bushes and trees on both sides of the road. He denied that his house was at a distance of 3 Kms. from other end of the village. The village has 300 to 400 residential houses. He stated that it was true that the road passing in front of the house of Dnyaneshwar Patil is zigzag. He denied that other houses were 100 to 150 mtrs. away from Dnyaneshwar Patil's house. At about 5.00 p.m. the witness must have gone to the hospital. After about 30 to 35 minutes, he was informed by the doctor that the deceased was dead. Thereafter, inquest panchnama of dead body was prepared by the police. He did not obtain possession of the dead body from the hospital. It was true that Dygad Police outpost is situated on Kalyan turning. He stopped his vehicle at the police outpost. He did not know the names of the police officials sitting in the outpost. He did not enter the police outpost. He cannot read or write, but he can make a signature. Then he stated, “It is true that police prepared the F.I.R. as per their whims and I made my signature thereon at the instance of police”. He did not remember as to whether he put his signature on the F.I.R. on 27th or 28th May, 2001. He did not remember as to whether he made his signature on F.I.R. in the evening of 27th May, 2001 or in the morning of 28th May, 2001. He denied that he did not witness the accused persons assaulting his brother. He 9 denied that the accused were not concerned with the death of the deceased. He had personally put his brother in vehicle after he got injured. In cross-examination by some other accused, he stated that he did not remember the name of the adjoining village. He denied that village Bamli is adjacent to his village. He, however, stated that it was false to state that he, Ananta, Dinkar, Gurunath and their nephew Santosh were arrested by the police in connection with a case of attempt to commit murder of Dattatraya Gondhale. He also stated that it was false to state that they attempted to commit murder of Dattatraya Gondhale prior to 10 days of the incident. He also stated that it was false to state that Ananta had made firing on the house of Shantaram Mhatre. He also said that it was true that incident of Haladi ceremony had taken place one year prior to the occurrence in which the deceased died. It was false to say that no dispute or quarrel had taken place between them and the Accused at the Haladi ceremony. It was true that neither party had lodged any complaint with the police about that incident. Two days before the occurrence, the accused Dinkar Patil had abused and threatened the deceased at Dahisar Check-post. He was personally present there at that time, but no F.I.R. was lodged. Then there are omissions, namely, “I did not state before the police that a quarrel had taken place between the persons belonging to the accused 10 and our persons regarding dancing. I did not disclose to the police that my brother Ananta arrived in the pendol and requested both sides not to pick up quarrel with each other at the time of ceremony. I did not disclose to the police that my brother Ananta expressed his intention to resolve dispute in a Panchayat.” .... “I had stated before the police that the accused Dinkar Patil ran to assault me and our nephew Shanivar Patil requested him not to assault me. I cannot assign any reason as to why police did not mention it in my F.I.R.”. 5. PW 2 – Laxman Aba Patil, is running a grocery shop at Vaklan. He stated that he was present at home on 26th May, 2001. He woke up from sleep at 3.30 p.m. and came out of his house and started washing his face in front of his door. He saw Dinkar Patil, Manohar Patil, Ananta Patil, Sandip Patil, Dipak Patil, Balkrishna Patil, Sunil Patil, Rama Patil, Ganesh Patil, Naresh Patil, Santosh Patil, Sadanand Patil, Motiram Patil, all armed with swords, choppers, iron rods and sticks, standing in front of his house. The accused persons in the court were the same. The swords, sticks, choppers and iron rods shown to him were the same. They were marked Articles A-1 to A-15. Then he said that the accused Dinkar Patil asked accused Manohar Gotiram Patil to start his auto rickshaw. Accordingly, Manohar Gotiram Patil started his auto-rickshaw. 4 to 5 accused boarded 11 the auto-rickshaw. He has a cattle-shed in other locality of the village. He went to his cattle shed by a different route without crossing the route of the accused. The auto rickshaw stopped in front of the house of Shankar Babu Patil, who also arrived on the spot from Dahisar side on scooter. Few accused were sitting in the auto-rickshaw and few were elsewhere. Accused Manohar Balkrishna Patil and Rohidas Patil gave signal to other accused to stand up. Within five minutes another auto-rickshaw from Dahisar side came on the spot of incident. Again accused Manohar Gotiram Patil started his auto-rickshaw and brought in front of that auto- rickshaw. All the accused gathered in front of the house of Dnyaneshwar Patil. The accused dragged the Corporator Ananta Bhoir from the auto- rickshaw and asked him, how he can escape from their clutches. Thereafter, accuse Dinkar inflicted blow of sword on his head. Accused Manohar also delivered blows of sword on him. Accused Ananta Patil assaulted the deceased with sword. Accused Sandip Patil also assaulted him with sword. Dipak Patil was possessing chopper. He pierced the chopper in the mouth of the deceased. Other accused also assaulted him with sticks, iron rods, sickles, etc. Thereafter, the accused fell Ananta Bhoir on the earth. Accused Balkrishna Patil instigated other accused to cut Ananta Bhoir to pieces. Balkrishna Patil was possessing a sickle in his 12 hand. He delivered blows of sickle on the deceased and threw it on his person. Thereafter, Eknath Bhoir and Ratan Mhatre arrived on the spot. The witness encouraged Eknath Bhoir and Ratan Mhatre to go to the spot. After assaulting Ananta Bhoir, the accused started bloting away from the spot. Meanwhile, one jeep belonging to the deceased came on the spot. They put deceased in the jeep and took him to Dygad Police outpost. The police asked them to shift the deceased immediately to Civil Hospital, Thane. Accordingly, they took Ananta Bhoir to Thane Civil Hospital, where he was declared dead. All the assailants were sitting before the court as accused. In his cross-examination, he stated his grocery shop was situated in front of house of accused Dinkar Patil. This witness stated that he had three brothers, namely, Balaram, Sakharam and Waman and each of them reside separately. He ran a grocery shop in the heart of the village. He resides in the same structure. His cattle-shed is situated at a distance of 3-4 houses from his residence. Then he said village Vaklan consists of 250 to 300 houses. Few of them are double storied and situated adjacent to each other. His house is single storied. Dahisar is 4 Kms. away from his house. It was true that house of Dnyaneshwar Patil is an old double storied Bungalow consisting of roof of tiles. It is situated at the beginning of 13 village Vaklan. There are cactus bushes on both sides of the road in front of house of Dnyaneshwar Patil. House of Dnyaneshwar Patil was not visible from his house and also not visible from his cattle-shed. His brother Balaram was Sarpanch of village Vaklan and Bamari before merging of villages in New Bombay Municipal Corporation. It was true that villagers of 14 adjoining villages have boycotted the elections of New Bombay Municipal Corporation since the year 2000. He submitted that it was false that accused Balkrishna Patil, his sons and other family members were on the forcing that because of the boycott, his brother Balkrushna could not contest the election of Municipal Corporation. He submitted that it was false that two families were on inimical terms with each other because of this. Balkrishna Patil is his cousin. His family and the family of the accused had joint agricultural property at Vaklan at the time of their grand-father. He denied that there were conflict on account of certain property which is a grazing land and is used for grazing cattle. He denied that there was a dispute between the family of the witness and the accused on account of grazing of cattle in the grass land. Then he said, his clothes were not stained with blood and hence were not seized by the police. The police recorded his statement on the day of occurrence in the evening. The police did not record any of his supplementary statement after 15 days of the 14 occurrence. He stated, “It is false to say that in my supplementary statement, I disclosed to the police that Manohar Gotiram Patil, Barkya Yashwant Patil, Gurunath Yashwant Patil and Laxman Ambo Patil were also amongst the assailants”. Then many omissions were pointed out to the witness and he stated that, “I cannot assign any reason as to why all these things do not find place in my statement recorded by the police”. In response to cross-examination by some other accused, he stated, “It is true that Eknath, deceased Ananta and Gurunath are real brothers. Dattu Gondhali was assaulted 4 to 5 days prior to the incident. I know Shantaram Namdeo of our village. It is false to say that in a firing made on the house of Shantaram Namdeo, deceased Ananta was a participant”. He also stated, “I along with 5 to 6 persons went to Raigad outpost. 7 to 8 cops were present in the outpost. I narrated them the whole incident. But, they did not reduce it into writing. Only one cop accompanied us to Thane Civil Hospital”. 6. PW – 3 Ratan Rama Mhatre, in his evidence stated that he and his brother Vasudeo Mhatre reside at village Vaklan. His brother was suffering from heart decease. The witness used to take him to New Bombay Municipal Corporation Hospital for treatment. On 26th May, 2001 at about 10.00 a.m., he went to the residence of ex-Corporator Mr. Ananta 15 Bhoir. He told him that the Medical Officer of New Bombay Corporation Hospital was not attending to his brother. Therefore, he requested him to request the Medical Officer to offer proper medical treatment to his brother. Anant Bhoir agreed to accompany him to New Bombay Corporation Hospital. He along with his brother Vasudeo, his wife and the deceased boarded auto rickshaw to go to Corporation Hospital. Auto rickshaw stared following Dahisar road. At Dahisar check post all of them got down from the auto rickshaw and from there they went by bus to Corporation Hospital. On the request of the deceased the Medical Officer of the Hospital admitted his brother in the Hospital. Thereafter, they returned back to Dahisar. After alighting at Dahisar, he started searching for an auto so that they can reach Vaklan. They got one auto rickshaw. He and Ananta Bhoir boarded the auto rickshaw. One lady co-passenger got down at village Bighu and another lady co-passenger got down at some distance in the same village. He and Anant Bhoir were the only two passengers left in the auto rickshaw. When auto rickshaw reached near the house of Dnyaneshwar Patil, one other auto rickshaw came in front of their auto and stopped them. 4 to 5 persons alighted from that auto rickshaw. He also got down from their auto. Those 4 to 5 persons started abusing. They were armed with swords. They threatened Ananta Bhoir not to spare 16 since he was found after long gap. Names of those persons were Manohar B. Patil, Dinkar Balkrushna Patil, Sandip Balkrushna Patil. He could not see the faces of remaining two persons. They started assaulting the deceased. He got frightened and he ran towards the village Vaklan. He straight way went to the house of Ananta Bhoir. After crossing the distance of 40 to 50 ft. he looked behind and witnessed a crowd of 10 to 15 people. He reported about the incident to Eknath Bhoir (PW 1) brother of Anant Bhoir. Eknath Bhoir, therefore, went to the place of occurrence and the witness followed him. That time he witnessed 20 to 25 people raising shouts as “Mara Mara”. After some time, son of Anant Bhoir brought Armada Jeep. The witness with the assistance of Sakharam Aba, Laxman Aba and Eknath Dinkar put injured in the jeep and took him to Thane Civil Hospital for Medical Treatment. Ananta had sustained injuries on his face, legs and hands. On the way to hospital, they stopped jeep at Shilphata Police Chowky. Laxman Aba got down at Shilphata for reporting about the incident. From there they went to Thane Civil Hospital. In cross-examination, he stated that house of Eknath Bhoir is at the distance of 4 to 5 minutes by walking from the house of Dnyaneshwar Patil. He stated that it was true that it was not visible from the house of Dnyaneshwar Patil. He denied that the distance between the 17 house of Dnyaneshwar Patil and the house of Eknath Bhoir could take 15 minutes by walk. Police did not seize his wearing clothes. It was true that the police had made him sit in the police station for two days and recorded his statement on the subsequent day. After recording his statement, he was allowed to leave the police station. He said, “It is false to say that police were insisting upon me to take names of Vitthal Balkrushna Patil, Manohar Balkrushna Patil and Sandip Balkrushna Patil for two days and I was continuously refusing”. He further said, “I had stated to the Police that the 5 persons alighting from auto Rickshaw threatened Ananta Bhoir not to spare since he was found after a long gap. I had disclosed names of three persons as Dinkar Balkrushna Patil, Manohar B. Patil and Sandip Balkrushna Patil by giving statement. I cannot assign any reason as to why these facts are not recorded in my statement.” He further said, “I disclosed to the police that those 5 persons dragged Ananta Bhoir from the auto rickshaw and started assaulting him. I had stated before the Police that while running towards the house of Ananta Bhoir I looked back and witnessed crowd of 10 to 15 people on the spot. I cannot assign any reason as to why these things do not find in my statement.” 7. PW 4 – Sakharam Aba Patil, has stated that he was running a grocery shop in Joshi Ali locality. On 26th May, 2001 he was present in his 18 shop. At about 4.00 p.m. quarrel had taken place between the Corporator Ananta Bhoir and Dinkar Balkrishna Patil. He thought his brother also must have been beaten by Dinkar