1 cri.appeal 870-2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 870 OF 2005 1. Bandu Ramchandra Shinde, ) Age 26 years, ) ) 2. Rama @ Ramchandra Narasu Koli, ) Age 44 years, ) ) 3. Kumar Bapu Koli, ) Age 28 years, ) ) 4 Arun Rajaram Koli, ) Age 25 years, ) ) 5 Digambar @ Bandu Bapu Koli, ) Age 23 years ) ) All R/o. ) Sangliwadi, Taluka Miraj, ) District _ Sangli ) ...Appellants (Orig.Accused Nos.2,3,4,6,7) VS. The State of Maharashtra ...Respondents Mr.Nitin Pradhan with Ms.S.D. Khot, Advocate for the Appellants. Mr.H.J. Dedhia, APP for the State. 2 cri.appeal 870-2005 CORAM : B.H. MARLAPALLE AND U.D. SALVI, JJ. JUDGMENT RESERVED ON : MARCH 15, 2011 JUDGMENT PRONOUNCED ON: JULY 5, 2011 JUDGMENT (PER U.D. SALVI, J.) :- 1 Judgment and order dated 26th July, 2005 passed by the learned 1st Ad-hoc Additional Sessions Judge, Sangli, in Sessions Case No.36/2002 convicting and sentencing the appellant-accused as under :- 1) Under Section 302 read with Section 149 IPC and sentencing them to suffer imprisonment for life and to pay a fine of Rs.2000/- each, in default of payment of fine, to further suffer RI for 6 months, 2) Under Section 307 read with 149 IPC and sentencing them to suffer RI for 7 years and to pay a fine of Rs.1000/- each, in default of payment of fine, to suffer RI for 3 3 cri.appeal 870-2005 months, 3)Under Section 148 of IPC and sentencing them to suffer RI for one year and to pay a fine of Rs.500/- each, in default of payment of fine, to suffer RI for one month, 4)Under Section 147 of IPC and sentencing them to suffer RI for one month and to pay a fine of Rs.250/- each, in default of payment of fine, to suffer RI for 15 days, is challenged in the present appeal. 2 Concisely, the facts making up the prosecution case are as under :- i) The complainant Shafik Ajmuddin Khalifa and his friend – the deceased Rahul Shivaji Patil had a dinner at Suresh Hotel, Sangli, around 10.30 p.m. 4 cri.appeal 870-2005 on 27th September, 2001. Their friends- Prashant Patil, Madhu Kamble, Kishore Kadam joined the dinner party at Suresh Hotel. Vijay Patil, Sukhdeo Mohite, Raigonda were at the Suresh Hotel at the material time. After dinner, the complainant, the deceased Rahul and Madhu Kamble proceeded on Rahul's scooter on way back home. Madhu Kamble was dropped on the way and the complainant and deceased proceeded to Sangliwadi on scooter. Around 12.15 a.m., they were in front of the residence of the complainant situate in Sangliwadi. About that time, Bandu Shinde, the appellant No.1 (original accused no.2) was passing by the road. He made utterances directed at the deceased Rahul ”Whether his arrogance did not leave him yet”. Thereupon, the complainant angrily gave a fist blow on the abdomen of the appellant Bandu Shinde and asked him why he stated so. Thereafter, the appellant Bandu Shinde ran towards Jyotiba temple and the complainant and the deceased chased him to see where he went. Having failed to locate him near Jyotiba 5 cri.appeal 870-2005 temple, they returned on scooter and sat in a rickshaw opposite the shop of one Datta Patil. ii) Sometime thereafter, they saw the deceased accused no.1 Balu Koli moving in a jeep in the company of several persons towards Jyotiba temple. The complainant and the deceased felt that the accused no.1 Balu Koli were searching them and therefore, they moved on their scooter in direction where the said jeep proceeded around 12.30 a.m. They were near the house of deceased-accused no.5 Ratan Patil. There they saw the said jeep approaching them from the opposite direction. On seeing them, the deceased accused no.1 Balu Koli stopped the jeep and the deceased accused no.1 Balu Koli, appellant- accused no.2 Rama Koli (Original accused no.3), appellant-accused no.3 Kumar Koli (original accused no.4), appellant-accused no.1 Bandu Shinde (original accused no.2) and other persons all numbering 10 to 12 persons got down from the said jeep. Balu was 6 cri.appeal 870-2005 armed with Kukri, Rama with gupti, Kumar Koli and Bandu Shinde with swords, and others were carrying sticks and axes. Balu asked his colleagues to catch hold of the complainant and the deceased. All of them, accused and others, thereafter assaulted the complainant and the deceased. While the deceased Rahul was on scooter, Balu Koli gave blow on his head with kukri whereupon the deceased Rahul fell down. Rama Koli and Bandu Shinde started assaulting the complainant with their weapons on his head and face. About that time, the complainant heard sudden wailing of Kumar Koli suggestive of he having received an injury. Thereafter, the assailants removed Kumar Koli in a jeep to wadi. iii) After sometime, the assailants except Kumar Koli returned to the spot in the jeep and resumed the assault on the complainant and the deceased. Balu Koli was encouraging the others with utterances- “not to leave them, finish them.”. Before 7 cri.appeal 870-2005 the assailants had returned to the spot, the complainant had noticed that Rahul was not responding and his head was drenched with the blood. After Rahul was hit with 4 to 5 stick blows, the assailants turned to the complainant. However, the complaint feigned unconsciousness, whereupon the assailants left the spot. iv) The complainant had received bleeding injuries on head and face. Yet, in an injured condition he went to the residence of his friend Padu Inamdar situate in the vicinity. The complainant narrated the facts to Padu Inamdar and asked him to make a call to Mr.Dinkar Patil, MLA, whereupon a telephone call was made to MLA Mr.Dinkar Patil and he was appraised of the said incident on telephone. Thereafter, the complainant was removed to Civil Hospital where he had disclosed the names of the assailants to the Medical Officer on duty. PI Madan Patil recorded the statement of the complainant at 8 cri.appeal 870-2005 Civil Hospital, Sangli. Crime was registered at CR No.147/2001 under Sections 302, 307, 147, 148, 149 of IPC, 1860 at about 4.15 a.m. on 28th September, 2001 with Sangli City Police Station on the basis of the statement given by the complainant Shafik Khalifa. iv) According to the complainant, the incident had occurred as a result of quarrel over one boy of Balu Koli group being chastised some 15 days back for rashly driving the motorcycle on the road in front of college at Sangliwadi, and the immediate cause for the incident being giving of fist blows on the abdomen of Bandu Shinde around 0015 hours on 28th September, 2001 by the complainant. v) On 29th September, 2001, PI Madan Patil recorded supplementary statement of the complainant showing involvement of Ratan Patil, Arun Koli and Digambar @ Bandya Koli. Arun Koli, accused no.6 and accused no.7 Digambar @ Bandya Koli were arrested on 9 cri.appeal 870-2005 29th September, 2001. Accused no.4 Kumar Koli was arrested on 13th December, 2001 and the accused no.2 Bandu Shinde and accused no.3 Rama Koli were arrested on 18th January, 2002. vii) Discovery of weapons used in the crime was made by accused no.2 Bandu Shinde, accused No.3 Rama Koli, accused No.6 Arun Koli and accused no.7 Digambar Koli. Clothes of the accused nos.6, 7 were seized. Statements of the witnesses were recorded. After the completion of the investigation, the charge sheet was filed and the case was committed to the Sessions Court in due course. 3 Simultaneously, as the events progressed, statement of the injured accused no.4 Kumar Koli came to be recorded in the hospital and as a sequel to it, CR No.150/2001 under Section 307 read with 34 of IPC, 1860 came to be registered with Sangli City Police Station against the complainant and the deceased 10 cri.appeal 870-2005 Rahul Patil. On completion of the investigation in the said case, charge sheet came to be filed against the complainant Shafik Khalifa and the case was committed to the Court of Sessions in due course. 4 Initially the charge was framed against the appellant-accused as well as the deceased Balu Narsu Koli and Ratan @ Deepak Vilas Patil, arrayed in the charge as accused nos.1 and 5. On 9th February 2004, after the demise of the accused Ratan Patil, the charges were reframed as per Exhibit 96. Charges under Sections 147, 148, 302 and 307 read with 149, alternatively under Sections 302 and 307 were framed against Balu Narsu Koli as accused no.1 – the appellant-accused and Dharmendra Koli, Govind Koli and Ravindra Koli – the accused acquitted in the present case. The accused denied their guilt. Before the pronouncement of the impugned judgment, the accused no.1 Balu Koli died and the trial as against him stood abated. 11 cri.appeal 870-2005 5 The prosecution examined 21 witnesses comprising of one eye witness, two Medical Officers, four police officers, thirteen panchas and others in support of its case, 6 The accused denounced the case against them as a false one and attributed their implication in the false case at the instance of accused MLA Dinkar Patil out of political rivalry. The appellant-accused Arun Koli took a specific plea of alibi. However, none of the accused examined himself nor led any defence evidence in the case against them. 7 Simultaneously, the case against the complainant Shafik Ajmuddin Khalifa under Section 307 read with 34 of IPC – being Sessions Case No.58/2002 progressed. The charge against the complainant Shafik Khalifa was sought to be proved on the evidence of the complainant therein Kumar Koli (the appellant- 12 cri.appeal 870-2005 accused in the present appeal) and Medical Officer Dr.Ananda More as well as the scene of offence panchnama, post mortem notes concerning the post mortem examination conducted on the deceased Rahul Patil and Medical Certificate concerning the injuries on the complainant in the case. The accused Shafik Khalifa (the complainant in the present case) denied his involvement in the crime. According to him, the complainant in the case against him i.e. Kumar Koli and his friends assaulted him and the deceased Rahul Patil with dangerous weapons and in the process injured the deceased Rahul Patil fatally besides himself. 8 The learned trial court after considering the arguments made by the rival parties and the evidence on record concluded that homicidal death of Rahul Patil was brought about as a result of the assault launched by the appellant-accused and the deceased Balu Koli and Ratan Patil. According to the learned 13 cri.appeal 870-2005 trial court, the prosecution succeeded in explaining the injury sustained by the appellant-accused Kumar Koli inasmuch as Kumar Koli had sustained the injury, complained of by him, as a result of blow received from one of the accused persons in course of the assault launched on the deceased Rahul. The plea of alibi raised by the appellant-accused Arun Koli was dismissed by the learned trial court on account of the failure of the appellant-accused to examine anybody in support of such plea. The learned trial court disbelieved that the entire investigation was done at the instance of and under the thumb of MLA Mr.Dinkar Patil. As a corollary, the learned trial court disbelieved the prosecution case against Shafik Khalifa and acquitted him of the offence punishable under Section 307 read with 34 of IPC in Sessions Court No.58/2002. 9 Learned Advocate Nitin Pradhan for the appellant-accused submitted that it was doubtful case 14 cri.appeal 870-2005 based on the testimony of single eye witness PW 15 the complainant Shafik Khalifa and the case was fabricated on the directions of MLA Dinkar Patil out of political rivalry between himself and the appellant-accused supporters of a rival MLA group. According to him, the prosecution suppressed the facts by not examining the friends of the deceased Rahul who happened to share the dinner with the deceased on that fateful night just prior to the incident in question and the evidence of the only eye witness required independent corroboration as his evidence was not totally reliable on account of discrepancies and its irreconcilable conflict with the medical evidence. He pointed out from the evidence that Kumar Koli had sustained serious injury and was hospitalised before the complaint of Shafik Khalifa came to be recorded on 28th September, 2001. According to him, the accused were not the aggressors inasmuch as the evidence indicated that the deceased Rahul and the complainant Shafik waited in rickshaw 15 cri.appeal 870-2005 for the appellant-accused and followed the appellant- accused with evil intentions. According to him, PW 14 Padu Inamdar was a got up witness procured by MLA Dinkar Patil to explain the delay in lodging the complaint in the present case. He further argued that the FIR was devised to frame the appellant-accused in the false case and to come out of the accusations made by the appellant-accused Kumar Koli regarding the injury sustained by him. He further argued that the statement of Khalifa cannot be regarded as FIR as the police knew about the offence much before it came to be recorded from MLA Dinkar Patil. He further submitted that the detection of human blood in the forensic investigation without their being detection blood group was of no avail to the prosecution to prove the case against the appellant-accused. He further pointed out that no incriminating role was attributed to accused no.4 Kumar Koli in the present case. Considering the totality of the evidence, he argued that the appellant-accused deserves the 16 cri.appeal 870-2005 benefit of reasonable doubt and consequent acquittal in the present case. 10 Learned APP Shinde placed reliance on the evidence of PW 15 Khalifa. In his view, his evidence was totally reliable inasmuch as it suffered from no material infirmity and the recording of his statement by the police was without any appreciable delay. He urged us to believe this evidence and dismiss the present appeal. According to him, the information received by the police from the MLA was cryptic and as such, it could not have been regarded as an FIR. 11 It is not in dispute that deceased Rahul died as a result of ante mortem homicidal injuries which have been enumerated in the evidence of PW 16 Dr.Ananda More in his Post Mortem Report (Exhibit 182) as under :- 1)horizontal CLW admeasuring 14 cm x 6 cm x brain 17 cri.appeal 870-2005 deep with destruction of brain matter 2 cm above right ear lobe on right tempo parietal occipital region causing fracture of skull bone and protrusion of brain matter outside along with blood clots, 2)CLW admeasuring 12 cm x 2 cm by bone deep 2 cm at the nasal bridge at middle forehead vertically/oblique along with blood clot, 3)Contusion with abrasions admeasuring 3 cm x 2 cm with redness 2 cms at the eye brow on left side of forehead, According to PW 16 Dr.Ananda More, there were following internal injuries noticed during the Post Mortem Examination of the body of the deceased Rahul Patil :- 1)Haematoma over right tempo parietal occipital 18 cri.appeal 870-2005 region, 2)Haematoma at forehead region, 3)Fracture of right tempo parietal occipital bone with irregular margins with patachea haemorrhage with multiple pieces of bone at fracture site with depression. Brain matter protruding outside the fracture region. Fracture extending upto base of skull having dimensions 14 cm x 6 cm brain deep 4)destruction of right tempo parietal occipital lobe on cerebral haemorrhage along with the blood clot present. In the opinion of PW 16 Dr.Ananda More, the internal injury no.1 corresponding to internal damage as aforesaid was sufficient to cause death in ordinary course and the cumulative effect of all the injuries 19 cri.appeal 870-2005 attributed to death. 12 The prosecution made efforts to answer the pertinent questions regarding how and what caused such homicidal injuries to the deceased Rahul with the evidence of PW 15 Shafik Khalifa. PW 15 Shafik Khalifa deposed that, the deceased Rahul, their friends Madhu Kamble, Prashant Patil, Kishore Kadam, Vijay Patil, Sukhdeo Mohite, Raigonda had dinner at hotel Suresh around 10.30 pm. on 27th September, 2001 and around midnight, all of them left hotel Suresh. He further deposed that after dropping Madhu Kamble on scooter, he and deceased Rahul reached a place near the house of Shafik around 0015 hours on 28th September, 2001. According to him, the deceased Rahul was to visit his field “talavaril shet” and return home thereafter; and about that time Bandu Shinde passed by the road and made remarks at Rahul “Whether he had arrogance” whereupon he got annoyed and gave fist blow on the abdomen of Bandu Shinde and as 20 cri.appeal 870-2005 result of it, the appellant-accused ran towards Jyotiba temple and they followed him on scooter. He added that the appellant-accused disappeared from the scene and thereafter, he and the deceased Rahul sat in a rickshaw parked nearby on the road. 13 The evidence of PW-15 Shafik further discloses that some ten minutes after he and the deceased Rahul gave up the chase of Bandu Shinde and sat in a parked Rickshaw along the side of road, he saw a jeep driven by the deceased-accused Balu Koli and carrying some persons moving towards Jyotiba Temple and this he could see in street light. Pertinently, PW-15 Shafik averred that he and the deceased Rahul followed the said jeep on scooter and when they reached in front of the house of the deceased-accused Ratan Patil, he saw the said jeep coming from opposite direction and the deceased- accused Balu Koli halting the jeep and asking them to stop; and thereafter they stopped there and Balu Koli 21 cri.appeal 870-2005 carrying kukri (article-51), the appellant-accused no.1 Bandu Shinde carrying sword (article-54/1), the appellant-accused no.2 Rama Koli carrying gupti (article 55/2), the appellant-accused no.3 Kumar Koli carrying sword, Arun Koli, appellant-accused no.5 Digambar Koli, the deceased-accused Ratan Patil and others, total aggregating seven to eight persons besides the deceased-accused Balu Koli alighted from the said jeep. According to PW-15 Shafik, the appellant-accused Arun Koli, Digambar Koli and Ratan Patil i.e. the persons not armed with kukri, sword or gupti were carrying sticks and axes. 14 No sooner they alighted from the said jeep, PW-15 Shafik deposed, the deceased-accused Balu Koli asked his colleagues to apprehend PW-15 Shafik and the deceased Rahul. PW-15 Shafik further deposed that he alighted from the scooter and while the deceased Rahul was on scooter, the deceased- accused Balu Koli gave forcible blow of kukri on the backside of the 22 cri.appeal 870-2005 head of the deceased Rahul horizontally and the deceased Rahul fell down on the ground from the scooter. Thereafter, he added that the appellant- accused Rama Koli and Bandu Shinde started assaulting him with their weapons and as a result of which he sustained injuries on his face viz. Chin and jaw and he fell down on the ground. All of them, he deposed, assaulted him and the deceased Rahul. 15 While they were being assaulted, PW-15 Shafik deposed, he heard shouts of the appellant-accused Kumar Koli as “ Aaiga mala lagla ki” (Oh Mom I got injured). Thereafter, Kumar Koli was removed to Sangaliwadi in the said jeep by the assailants. The evidence of PW-15 Shafik reveals that he could see the accused and the incident of assault in street light. Thereafter, PW-15 Shafik deposed, he found that the deceased Rahul did not respond to his calls and his head was drenched in blood. 23 cri.appeal 870-2005 16 According to PW-15 Shafik, the accused, except the appellant-accused Kumar Koli, returned to the spot in the same jeep and resumed the assault with sticks on him and the deceased Rahul; and when he pretended to be dead, they left the place in the jeep. 17 PW-15 Shafik further deposed that he sustained bleeding injuries on head and his jaw was broken and his limbs were swollen and paining; and he found Rahul dead. According to PW-15 Shafik, he went to his friend-PW-14 Padu Inamadar’s house situate on 2nd floor in the building standing some fifty feet from the said spot and narrated the incident to PW-14 Padu Inamdar that Rahul was dead at the spot and asked him to contact M.L.A. Dinkarrao Patil, paternal uncle of the deceased Rahul on telephone; and thereupon PW-14 Padu Inamdar got himself connected telephonically to M.L.A. Dinkarrao Patil and disclosed entire incident to MLA Dinkarrao Patil on 24 cri.appeal 870-2005 phone. 18 Some time thereafter, PW-15 Shafik deposed that Ananda Patil and Shambhaji Patil and some other persons came to the house of Inamdar and removed him to Civil Hospital at Sangli at about 3-15 a.m. where he disclosed the incident and names of the assailants to the M.O. and was medically treated thereafter. He added that his statement was recorded by the Police at the Civil Hospital, and since he was on saline the Police had obtained his thumb impression on the statement (Exh.178). His evidence further reveals that on the next day he had named the deceased Ratan Patil, the appellant-accused Arun Koli and Digambar residents of Sangliwadi as his assailants by giving a supplementary statement to the police. His evidence further shows that he identified the clothes which were on his person viz T-shirt (Article-28), Banian (article-29) and pant (article-30) at the material time. 25 cri.appeal 870-2005 19 In his evidence PW-15 Shafik narrated a fifteen days old incident of quarrel between the deceased Rahul and Ravindra Koli which was narrated to him by the deceased Rahul Patil as a motive for the assault on them at the material time. This part of the evidence, the learned Advocate for the appellant-accused, urged the court to discard it as hear say evidence. 20 While grappling with the issue of motive, the learned trial court rightly observed that even if the prosecution fails to establish motive, it would not mean that the entire prosecution case be thrown overboard. The learned trial court mainly took into account the direct evidence. It was pointed out to the learned trial court from the evidence of the complainant that the complainant was facing a case under Section 399 of IPC and as such, his evidence deserved no credence. However, this submission on 26 cri.appeal 870-2005 behalf of the accused was turned down by the learned trial court with reference to the ratio in the case of State of U.P. vs. Farid Khan (AIR 2004 SC 5050) that “eye witness with criminal background–though to be viewed with caution but is credible sufficiently corroborated by evidence of other witnesses”. The learned trial court, therefore, anticipated before believing the evidence of the complainant Shafik Khalifa a corroboration to it on material aspects. 21 According to learned Advocate Pradhan, the complainant had sustained fracture of jaw and as such, it could be reasonably inferred that he could not have given statement (Exhibit 178) to the police and the said statement was a fabricated piece of evidence. Evidence of PW 16 Dr.Ananda More throws light on the issue raised by learned Advocate Nitin Pradhan for the appellant-accused. PW 16 Dr.Ananda More was on duty at Civil Hospital, Sangli, in the night between 27th and 28th September, 2001. He deposed 27 cri.appeal 870-2005 that the complainant Shafik Ajmuddin Khalifa was brought to the hospital around 3.50 a.m. On 28th September, 2001 and the patient Shafik Khalifa gave history of assault at 12 p.m. on 28th September, 2001 at Sangli road, behind Jyotiba Temple, behind Balu Koli and Ratan Patil’s home by Kumar Koli, Balu Koli, Bandu Shinde and 1o to 12 others. He clarified that in every case, names of the assailants were not recorded unless the patient disclosed it. He categorically asserted that at the time of admission, Shafik was conscious, oriented and mentally normal. He enumerated the injuries noticed by him on the person of Shafik Khalifa as under :- 1) CLW on left side of chin below lower lip of the mouth, traverse 2 cm x 1 cm x 1/2 cm, 2)Contusion on left