IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.686 OF 1988 CRIMINAL APPEAL NO.686 OF 1988 CRIMINAL APPEAL NO.686 OF 1988 1. Babasaheb Apparao Patil, age-25) r/o. Boramani, Tal. South ) Solapur, Dist. Solapur. ) 2. Tanaji Manikrao Patil ) age-23, r/o as above ) 3. Appasha Dharmarao Patil ) age-25, r/o as above ) 4. Prakash Limbanna Koli ) alias Jamadar, age-30 ) r/o as above. ) (At present in Solapur Dist. ) Prison). )..Appellants Versus The State of Maharashtra )..Respondent ---- Mr.V.M.Thorat for Appellant nos.1 & 3. Mrs.V.R.Bhosale, APP for the State. ---- Coram : S.S.Parkar & Coram : S.S.Parkar & Coram : S.S.Parkar & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 26.8.2004 and 27.8.2004. Judgment :- ( Per : Mohite,J) Judgment :- ( Per : Mohite,J) Judgment :- ( Per : Mohite,J) 1. The appellants (here-in-after referred to original accused nos.1 to 4) filed this appeal for quashing and setting aside the Judgment and Order passed by the IVth Additional Sessions Judge, Solapur on 26th July, 1988 in Sessions Case No.198 of 1987, convicting the appellants for an offence : 2 : under Section 302 read with 34 of Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/- each, in default to suffer further rigorous imprisonment for 6 months each. 2. At the very outset, the record indicates that the appellant nos.2 & 4 (original accused no.2 Tanaji and original accused no.4 Prakash Koli @ Jamadar) expired during the pendency of this appeal. However, as the sentence of fine has been imposed against them, we have heard the appeal against all the accused. 3. The brief facts of the prosecution case were as under :- (a) That one Manikrao Patil was a resident of village Boramani, Taluka & District Solapur. Accused no.2 Tanaji was the son of Manikrao. Accused no.1 Babasaheb and accused no.3 Appasha Patil were the cousin brothers of accused no.2 Tanaji. Accused no.4 was not related to the other accused persons but was known to them. On 7.6.1986 i.e. about 12 days prior to the incident of murder, one Abhimanyu Rama Bhagare had assaulted the father of accused no.2 i.e. Manikrao Patil by using a sattur. Abhimanyu was a good friend of the deceased Baburao Vibhute. Manikrao suspected that the : 3 : assault on him by Abhimanyu had been instigated by the deceased Baburao. (b) The incident of murder took place on 19.6.1986. On that day one of the eye witnesses (PW 10) Sidram Birajdar, who was then the Sarpanch of village Boramani had come to Boramani S.T.stand for having a cup of tea in the S.T.stand canteen. At that time the deceased Baburao Vibhute came there in a Jeep. The jeep was being driven by (PW 11) Prakash Rajguru who was a temporary driver engaged by the deceased Baburao. Baburao, who was known to Sidram, requested him to come alongwith him to Solapur as he wanted to obtain some certificates from the banks. Sidram therefore, boarded the jeep of deceased Baburao and both of them alongwith one Suresh Rokade and the driver of the jeep Prakash proceeded towards Solapur. They reached Solapur at about 1.30 P.M. and first went to D.C.C.Bank Branch situated in the Market Committee Yard. They obtained the certificate required by deceased Baburao and then came to the Zilla parishad office. In the premises of Zilla Parishad, office of the Land Development bank was situated. They went into the office of Land Development bank and obtained another certificate. Thereafter, when they came near the gate of the Zilla parishad office, (PW 10) Sidram informed the deceased Baburao that he would wait at the said office and that Baburao should finish his : 4 : business and come to that place by about 5.00 P.M. (c) After leaving (PW 10) Sidram at the Zilla parishad office, the deceased Baburao alongwith his driver Prakash and Suresh Rokade came to Vikas hotel for taking meals. However, instead of taking meals, they drank some beer and subsequently returned back to the agreed meeting place near the Zilla parishad office. There they met (PW 10) Sidram who was waiting for them and all 4 of them started on their return journey to village Boramani at about 4.00 P.M. By about 5.30 P.M. they were near the Hyderabad Octroi post. Baburao suggested that they should stop for some refreshment and therefore, (PW 11) Prakash drove the jeep to the hotel of Khansaheb. The deceased made an enquiry at the hotel of Khansaheb as to whether vegeterian meals were available. They were told that vegeretian meals were not available. The deceased Baburao then asked his driver Prakash to go and purchase 4-5 bottles of beer and bring them to the hotel. For purchase of such beer, Rs.100/- was given to Prakash by Suresh. Accordingly, Prakash brought the beer from a restaurant and all the persons were sitting and enjoying their beer in the hotel of Khansaheb. (d) One Shivaji Rajguru was a labourer and used to work in the field of Baburao a long time prior to this incident. There had been some disputes between : 5 : Baburao and Shivaji. Shivaji had taken some excess money, over and above the remuneration due to him from Baburao. Baburao had demanded this money and instead of repaying the same, Shivaji had left his service and alongwith his wife (PW 19) Sundarabai had gone to reside in village Mulegaon. While Baburao, his driver Prakash, Sidhram and Suresh were having their beer in the hotel of Khansaheb, this erstwhile labourer Shivaji passed alongwith the road outside the hotel in a bullock-cart. Shivaji was on his way to Solapur to purchase material for the roof of his house. While he passed by he looked at the group of Baburao and said "Musare khau". This was heard by Sidhram (PW 10) and Suresh. Baburao was told about this utterance made by Shivaji and on hearing this, he directed that they should follow Shivaji and apprehend him. Baburao, Sidhram and Prakash then followed Shivaji in their jeep and stopped him near Shringar Odha. Baburao asked Shivaji as to whom he had addressed the words "Musare khau". Baburao abused Shivaji and asked him to either repay his money or to serve him. These 3 persons caught hold of Shivaji and brought him to Khansaheb hotel. The bullock-cart in which Shivaji had been travelling belonged to somebody else and that bullock cart went ahead on its way. At the hotel Baburao again abused Shivaji and once again demanded repayment in cash or in the form of service. Shivaji expressed his in-ability to pay : 6 : cash but agreed to serve Baburao. (e) At about 6.00 P.M. these 4 persons i.e. Baburao, labourer Shivaji, (PW 10) Sidram and (PW 11) Prakash then recommenced their journey in the jeep towards village Boramani. After they have crossed the sign board of village Mulegaon, they saw (PW 19) Sunderabai, the wife of Shivaji, signalling them to stop. Accordingly, (PW 11) Prakash stopped the jeep. Baburao, Rokade and Sidhram got down from the jeep. They went towards the rear side of the jeep and were speaking to Sunderabai. Baburao demanded repayment of the due money from Sunderabai. Sunderabai told Baburao that she would pay his money but he should release her husband. (f) While such talk was going on on the rear side of the jeep of Baburao, another jeep came from the west side i.e. from the Solapur side. This jeep was parked in front of the jeep of Baburao. From this jeep, accused no.3 Appasha Patil got down. Accused no.1 Babasaheb followed him with a pistol in his hand. Accused no.2 then got down from the jeep wielding an instrument like Jamiya. Accused no.3 Appasha came to the rear side of the jeep of deceased Baburao and grabbed Baburao from behind. Accused no.2 Tanaji then dealt a blow on the stomach of Baburao by using the Jamiya. After receiving this blow, Baburao fell down on the ground on his : 7 : back. After Baburao fell down, accused no.1 fired bullets on the chest of Baburao. On seeing that bullets had been fired by Babasaheb, Sidram (PW 10) out of fear started running away towards Kalyani Petrol Pump. The said Kalyani Petrol Pump was situated at the distance of about 4 furlong to the east of the scene of the offence. When he came to Kalyani Petrol Pump, Sidram (PW 10) stopped a truck and by paying Rs.20/- to the driver, fled to Hyderabad. (PW 11) Prakash the driver of Baburao also witnessed this entire incident. He heard accused no.4 Prakash saying that they should catch the driver and therefore, he fled through the open field till he reached the highway near Mulegaon farm house. He then proceeded towards Solapur where his uncle Kisan Ingale (PW 18) resided. He reached the house of his uncle at about 9.00 P.M. and narrated the entire incident to him. (g) According to Kisan Ingale (PW 18), on 19.6.1986 he was at his house and had just finished his meals by 9.00 P.M. At that time, his nephew came to his house and appeared to be in a frightened condition. Kisan asked him as to what had happened and he was told by Prakash that his employer Baburao had been murdered. Prakash further told this witness that accused no.2 Tanaji had dealt a blow to Baburao by using a Jambiya and that accused no.1 Baburao had fired a pistol at his employer. He further : 8 : disclosed that this entire incident had occurred near the sign board of Mulegaon village. Kisan gave him food and kept him in his own house on that night. (h) On the morning of the next day, Kisan and Prakash started from Solapur with the aim of going to the police station to report the matter. However, on the way, another nephew of Kisan by name Sanmukh who was serving as a Ward-boy at Civil hospital Solapur met them. Sanmukh told them that Baburao had expired and his uncle had called Prakash to the Civil hospital. They all therefore, went to the Civil hospital, Solapur. At the Civil hospital, Prakash met the uncle of Baburao by name Mallikarjun. He also met the brother of the deceased Baburao. After some time, a police jeep came to the hospital. The police took Prakash to the Taluka police station where his statement was recorded at about 11.00 A.M. on 20.6.1986. (i) In the meanwhile, events concerning this incident were unfolding elsewhere. On 19.6.1986 (PW 28) CPI Bhaskar Patil was incharge of the police control room in Solapur. At 9.10 P.M. on that day he received a phone call from an unknown person informing him that Baburao had been murdered near Mulegaon by the firing of a revolver from the jeep. : 9 : The informant told him that accused no.2 Tanaji and accused no.1 Babasaheb had committed this murder. This police officer made an attempt to get further details from the informant but the unknown informant hung up the telephone. (PW 28) Bhaskar Patil then made an entry in the station diary (at Serial no.41) regarding the telephonic message received by him. At 9.15 P.M. he immediately conveyed the information received by him to (PW 33) PSI Annasaheb Patil attached to the Taluka police station within whose jurisdiction the murder was said to have been committed. He also informed the jail road police station about the information received. Regarding informing these 2 police stations, he made another station diary entry at Serial no.42. Thereafter also he made entries in respect of all consequential messages received and communicated by him and these entries were made at serial nos.42 to 49. (j) On receiving information from the control room, (PW 33) Annasaheb Patil made an entry in the station diary of the Taluka police station, Solapur and immediately went towards the scene of the offence. At the scene of the offence, he saw a jeep standing on the Solapur-Hyderabad road after the Mulegaon bifurcation. The jeep was facing east towards Boramani. On inspecting the place he found a dead body lying in a dried up brook-let to the north of the road. The body was lying on its back with the : 10 : feet towards the north and head towards the south. With the aid of a search light, he conducted an inspection. Head constable Kengar who was with him identified the dead body to be that of Baburao. They found 9 deep injuries on the body of Baburao, on the chest, stomach, knees, fingers etc. They turned the dead body and found injuries on the back. They found one circular little plate was sticking to skin and it was covered with blood. The clothes of the deceased were also soaked in blood. (PW 33) Annasaheb removed all the clothes of the deceased except his undergarments. He prepared an inquest panchanama (Ex.10) and attached all the garments under the inquest panchanama. He then called for a photographer for taking photographs of the dead body. The photographs so taken were exhibited at Exh.28 to 39 by the trial court. He then sent the dead body of Baburao for post mortem. He deputed some constables for keeping a vigil at the scene of the offence and returned to Taluka police station. (k) At the police station (PW 33) PSI Annasaheb Patil lodged a FIR under his own signature and registered the offence under Section 302 read with 34 of Indian Penal Code and under Section 25 of the Arms Act. The crime was registered as C.R.No.91/86 on the basis of his FIR (Exh.129). (l) On 20.6.1986 (PW 33) PSI Annasaheb returned to : 11 : the scene of the offence. He found that the scene of the offence was near mile stone no.253/4 on the Solapur-Hyderabad road. At the scene of the offence the ground admeasuring 2 feet x 2 feet was soaked in blood. He collected the samples of the soil from this place. He found a pair of chappals in the front compartment of the jeep and another pair of chappals in the rear compartment. He found beer bottles in the front compartment of the jeep. He found some chappals on the road at the rear of the jeep and these chappels had blood stains. Behind the jeep there was a stone covered with blood. Near the dead body he found a goggle and a dagger. There were some articles in the pocket of the garments of the deceased. This witness then prepared a panchanama of the scene of the offence (Exh.40) and got the same signed by 2 panchas. The articles seized by him at the spot were articles-1 to 17 produced before the court. (m) On 20.6.1986 PSI Patil recorded the statements of Prakash, Shivaji, Sunderabai, Mumtaz Patel and others. He found that Shivaji had an injury on his back and therefore, sent Shivaji for treatment to the hospital. He had called a dog unit to trace the culprits but this did not result in any detection. (n) On 21.6.1986 he received an advance medical certificate from the Doctor attached to the Civil : 12 : hospital, Solapur. Constable Jadhav produced the underwear of the dead body and this was attached by (PW 33) Annasaheb under a panchanama (Exh.11). Annasaheb then recorded the statement of the uncle of the deceased Mallikarjun Vibhute and others. (o) On 23.6.1986 (PW 10) Sidram who had fled to Hyderabad returned back to village Boramani. His statement was recorded by (PW 33) Annasaheb on that day. PSI Annasaheb made efforts to trace the accused. He searched for them at Boramani and nearby villages like Musti, Baramani etc. The accused however, remained absconding and could not be traced. On 4.7.1986 (PW 33) PSI Patil transferred the investigation to (PW 29) Nasir Ahmed Khan. (p) On 5.7.1986 the investigating officer, PSI Nazir Ahmed Khan (PW 29) renewed his efforts to trace the accused. He sent the garments of the deceased, a dagger found at the scene of the offence, samples of blood, chappals, sample of soil and stone covered with blood in a sealed packet with forwarding letter to Chemical Analyser, Bombay with Constable Bansode. This was done under a forwarding letter (Exh.21). As the accused could not be traced, PSI Khan applied to the JMFC court for issuance of a warrant. He sent a letter to the Circle Inspector requesting him to draw a map of the scene of the offence, enclosing : 13 : a panchanama of the scene of the offence. On 15.7.1986 he handed over the investigation to (PW 30) CPI Gopal Kulkarni. In the meanwhile, the accused had been unsuccesful in their attempt to obtain anticipatory bail and in fact were directed by the High court vide order dated 22.7.1986 to surrender to the police on 24.7.1986 at Taluka police station, Solapur. Accordingly, the accused surrendered to the Taluka police station Solapur on 24.7.1986 and were taken into custody. (PW 30) CPI Kulkarni had obtained police remand of all the accused. He attached a jeep bearing No.MXS 9072 which was parked outside the house of one Sitaram Kale under a panchanama (Exh.42). On 27.7.1986 accused no.4 Prakash made a confessional statement volunteering to produce a country made pistol and 2 knives from a place in the field of Govindrao Deokate at Neera Wagaj. His statement was reduced to writing by (PW 30) Gopal Kulkarni in the presence of 2 panchas. In consequence of his statement the police alongwith accused no.4 proceeded to the field of Ganpatrao at Neera Wagaj. Ganpatrao was not in his house as he has gone to Boramani. Accused no.4 Prakash then took the police and panch party to the Babul tree behind the vasti and took out 2 polythene bags buried near the tree. In these 2 polythene bags, a pistol and 2 daggers were found. He also produced a G.I. sheet which had been kept over the place where these articles were buried and all these : 14 : articles were seized under a panchanama (Exh.117). The articles so seized, were articles-18 to 21 as produced before the court. The police panch party then returned to Boramani. (q) After returning to Boramani, (PW 30) CPI Kulkarni interrogated accused no.3 Appasha Patil. From accused no.3 he learnt that after the incident the accused had first stayed at Mathura lodge and later at Vijayraj lodge. The CPI then went to Mathura lodge which is situated near railway station Pune with the accused. On taking search of the records of the lodge it was learnt that the accused had stayed there from 27.6.1986 to 29.6.1986 and that the entry in the register of the lodge had been made by accused no.3 Appasha under a false name of S.C.Mali. (PW 30) CPI Kulkarni seized the register and the bill books of the said lodge under a panchanama (Exh.118). He recorded the statement of one Bhiku Kadam and 2 others at Mathura lodge and then returned to Solapur. Since he had to go to Mumbai for some court matter, he directed PSI Kadam to hold charge of further investigation. (r) On 31.7.1986 the accused were remanded to magisterial custody. On 7.8.1986 (PW 30) CPI Kulkarni recorded the supplimentary statements of (PW 10) Sidram, (PW 11) Prakash and Suresh Rokade. These supplimentary statements were recorded after : 15 : showing the seized jeep to this witnesses. (s) On 13.08.1986 CPI Kulkarni sent the muddemal property to the Chemical Analyser’s office at Mumbai alongwith a forwarding letter (Exh.22). Amongst the muddemal, articles sent were the seized pistol, blood samples of accused, sealed bottles containing skin of the deceased, pellets found in the body of the deceased by the Medical officer and the garments seized from the accused during the investigation. (t) On 5.9.1986 CPI Kulkarni received a direction that the investigation in this case should be handed over to the CID and accordingly he handed over the investigation to CID Inspector Mr.Dhandore of Solapur. (u) It appears that PI Dhandore handed over the investigation on 24.7.1987 to CID Inspector Raghunath Lamture (PW 31). On 12.8.1987 CID Inspector Raghunath Lamture addressed a letter to the Additional District Magistrate for obtaining sanction to prosecute the accused for the offence under the Arms Act. Such sanction was accorded by the Additional District Magistrate and on completion of the investigation, Inspector Lamture filed a charge-sheet in the court of JMFC Court No.2, Solapur. : 16 : 4. After the committal of the case to the Court of Sessions, the trial court framed a charge against the accused under Section 302 read with section 34 of the Indian Penal Code and under Section 25 of the Arms Act. During the trial, the prosecution examined as many as 33 witnesses to prove its case. The defence of the accused as could be gathered from the suggestions put to the witnesses and from their 313 statements was of total denial. After considering the entire evidence and other material on record, by the impugned Judgment and order, the trial court convicted all the 4 accused for the offences punishable under Section 302 r/w. 34 of Indian Penal Code. The trial court however, acquitted the accused for the offence under Section 25 of the Arms Act on the ground that sanction has not been properly obtained. In view of their conviction and sentence, the accused have preferred the present Appeal. 5. The contentions raised on behalf of the defence could be briefly summarised as under :- (i) That the evidence of the 2 eye witnesses viz. Sidram Birajdar (PW 10) and Prakash Rajguru (PW 11) was not worthy of belief and ought to have been dis-carded. It was contended that the versions given by these 2 alleged eye witnesses were inherently improbable and sufferred from various : 17 : infirmities. That Sidram Birajdar (PW 10) was the Sarpanch of village Boramani and was a close friend of deceased Baburao. He claimed that after the incident, he sat in the truck and fled to Hyderabad. It was contended that the story about going to Hyderabad was a mere pretext to cover the fact that his statement had been recorded by the police on 23.6.1986 i.e. after a delay of 3 days. That the investigating officers had not recorded the statement of anybody from Hyderabad and had also not obtained any other corroborative evidence to indicate that Sidram (PW 10) was in Hyderabad for a period of 3 days. It was suggested that Sidram was a got up witness who had been put up as an eye witness by the police at a belated stage. Certain contradictions in his deposition before the court were also relied upon. It was contended that Prakash (PW 11) was an employee of the deceased Baburao. Though Prakash claimed to have seen the entire incident, he had not disclosed the names of accused nos.3 & 4 to his uncle Kisan Ingale (PW 18). That the record indicated that Prakash first had a talk with the Uncle of the deceased by name Mallikarjun and the brothers of the deceased and only thereafter the statement of Prakash (PW 11) had been recorded by the police. It was thus suggested that Prakash (PW 11) was also a got up witness. It was further contended that there were other circumstances which remained unexplained. There was : 18 : no trail of blood from the road where the witnesses noticed the assault and where the dead body was actually found. That the empties in respect of shells fired into the deceased had not been traced. That the blood group on the clothes of the accused had not been determined. That the entire story about the accused being arrested in the same blood stained clothes that they were wearing at the time of the offence was unbelievable as the accused had surendered more than a month after the incident.