:-1-: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.40 OF 1993 CRIMINAL APPEAL NO.40 OF 1993 CRIMINAL APPEAL NO.40 OF 1993 The State of Maharashtra. ....Appellant. Vs. 1. Arjun Dattaram Bhekare, Age 55 years. 2. Atmaram Arjun Bhekare, Age 26 years. 3. Santosh Arjun Bhekare, Age 19 years. All R/o. Pat-Panhale, Taluka- Guhagar, Dist. Ratnagiri. ....Respondents. Ms. P.H. Kantharia, APP. for the Appellant-State. Mr. Prakash Naik, Advocate for the Respondents-Accused. ............. CORAM: R.M.S.KHANDEPARKAR & CORAM: R.M.S.KHANDEPARKAR & CORAM: R.M.S.KHANDEPARKAR & R.S.MOHITE, JJ. R.S.MOHITE, JJ. R.S.MOHITE, JJ. DATED: 6TH AUGUST,2004 DATED: 6TH AUGUST,2004 DATED: 6TH AUGUST,2004 ............. ORAL JUDGMENT : ( PER R.S. MOHITE, J. ) 1. This appeal is filed by the State of Maharashtra seeking to quash and set aside the Judgment and order :-2-: dated 6.11.1992 passed by the Sessions Judge, Ratnagiri in Sessions Case No.48 of 1992 acquitting the respondents (hereinafter referred as "Accused Nos. 1 to 3" respectively) from the charge under Section 302 read with Section 34 of the Indian Penal Code. 2. The brief facts of the prosecution case are as under: a) That, the deceased Yeshwant Laxman Bhekere was the son of P.W.No.5-Laxmi Laxman Bhekare and he was residing alongwith Laxmi at Village Pet Panhale, Taluka Guhagar, Dist. Ratnagiri. That, on 25.12.1991 at about 7.30p.m. P.W.No.5-Laxmi Bhekare heard a cry "bay bay" and went towards that sound. When she reached the house of one Parvati Vishnu Bhekare she saw Accused No.1 Arjun, Accused No.2-Atmaram and Accused No.3-Santosh assaulting Yeshwant with ribs. Laxmi tried to intervene and made a request to the accused not to beat her son Yeshwant. However, all the accused dragged her and she fell down and suffered injuries on her knee and shoulder. In the mean while, P.W.No.6 Gangabai and P.W.No.7 Santosh arrived at the spot. Santosh was carrying a battery with him. In the light of battery and also in the light of bulb under the roof :-3-: of the hut of Parvati Vishnu Bhekare, P.W.No.6 and P.W.No.7 Gangabai and Santosh also saw the accused beating the deceased Yeshwant with wooden ribs. Gangabai and Santosh also saw P.W.No.5 Laxmi on the spot. On seeing Gangabai and Santosh accused abused and threatened them and therefore, these witnesses left the spot in fear of accused. P.W.No.5 Laxmi alone remained there with her injured son. Yeshwant died on the spot. Laxmi then went to her house. b) P.W.No.2 Ramdas Chavan was the Police Patil of Village Pet-Panhale. He had stated that at about 8 or 8.30p.m. on 25.12.1991 accused No.1 came to his house in a frightened state of mind. He informed him that he and his two sons had killed Yeshwant Bhekare. Police Patil alongwith accused No.1 came to Bhekare wadi Mala which was the spot of the incident. They found that there was a bulb on the wooden pole in the padvi of Parvati Vishnu Bhekare. Since he found that the light was insufficient, he applied his torch and he saw that Yeshwant Bhekare was lying facing the sky in a pool of blood. He found injuries on the person of Yeshwant. The body was lying at a distance of 27 to 28ft. from the house of Parvati Vishnu Bhekare. He called at the house of Parvati Vishnu Bhekare but nobody opened the :-4-: door. He then went to the house of Parvati Bhekare. ( In the evidence name Parvati Laxman Bhekare, instead of Laxmi Laxman Bhekare, was referred). He found that Parvati was crying. She disclosed to the Police Patil that Arjun and his two sons had killed Yeshwant by wooden ribs. He then carried Arjun -accused No.1 to Guhagar Police Station which was situated 4/5 K.M. away from the village. In the Police Station, P.W.No.8 P.S.I. Mhatre was present. The Police Patil informed the P.S.I. Shri. Mhatre that he had brought Arjun alongwith him. That Arjun had confessed him that he had killed Yeshwant Bhekare. The information given by the Police Patil was reduced into writing as the First Information Report (Exh.41) and on this basis C.R.No.79 of 1991 was registered by the police at Guhagar Police Station for an offence under Section 302 of the Indian Penal Code. c) As the accused No.1 was also present in the police station, P.W.No.8 Bhaskar Mhatre arrested accused No.1 under panchanama (Exh.16). Under the same panchanama he seized the Articles 1, 2 and 3 which were the blood stained clothes and blood stained chappal belonging to accused No.1. P.W.No.8 P.S.I. Mhatre then informed Dy.S.P. Chiplun by a wire less message regarding the :-5-: registration of the offence. He came to Village Pet Panhale alongwith his staff and went to visit the spot of the offence. He arranged for keeping a police watch at the spot where the dead body of Yeshwant was lying, as it was night time. In the morning on 26.12.1991, at about 2.45a.m. he arrested the accused Nos. 2 and 3 under panchanama (Exh.17). He attached their clothes which were blood stained under the same panchanama and the clothes which were attached from accused No.2 Articles- 6, 7 and 8 before the court. d) Thereafter, between 6.20a.m. to 7.a.m. on 26.12.1991, P.W.No.8 P.S.I. Mhatre prepared an inquest panchanama of the dead body of the deceased Yeshwant Bhekare (Exh.18). He noticed in all 18 wounds on the dead body. Thereafter, he arranged to send the dead body for post mortem. He then prepared the scene of offence panchanama (Exh.19) and from the scene of the offence he seized one leather chappal lying there. On the same day, he recorded the statements of three witnesses namely Parvati Vishnu Bhekare, Gangabai Shivram Bhekare and Santosh Vishnu Bhekare. He then arranged to send the injured mother of the deceased Laxmi to the Government Hospital for clinical examination and treatment. On 26.12.1991 all the :-6-: accused showed their willingness to show the wooden ribs used in the crime. He therefore, recorded a memorandum panchanama which appears to be a joint memorandum of accused Nos. 2 and 3 (Exh.20). Thereafter, accused persons led the police to Bhekare wadi near the house of Shivram Bhekare and accused produced wooden ribs from behind the bushes near the house of Shivram Bhekare. Same were attached under a panchanama (Exh.20A). Articles 9 to 12 were the same wooden ribs which have been used as weapons in the crime and which were attached under the said panchanama. Thereafter, on 26.12.1991 between 12.05 to 12.25p.m. the clothes of the deceased were produced by Head Constable Sashe from the hospital and were attached under panchanama (Exh.24). These clothes of the accused were Articles 15 to 19 before the court. e) Thereafter, at about 1.00p.m. the Deputy Superintendent of Police (P.W.No.9) Anand Mandya came to Guhagar and took over the charge of the investigation. During the investigation, he recorded the statements of Laxmibai Laxman Bhekare, Gangabai Ganpat Bhekare and others on 26.12.1991. He attached the battery torch which was produced by Gangabai Ganpat Bhekare in the presence of two panchas. This :-7-: panchanama was drawn between 1.30 to 2.00p.m. On that very day, at about 4.00 p.m. he attached sample wooden rib from a heap of ribs lying near the house of Shivram Soma Bhekare under panchanama (Exh.21). The sample wooden rib was produced as Article-21 before the Trial Court. f) On 9.1.1992, P.W.No.9-Anand Mandya, the Investigating Officer received the Medical Certificate in respect of the clinical examination of the injured Laxmi Laxman Bhekare. On the same day, he sent articles attached to the Chemical Analyser for chemical analysis. He received C.A. report and thereafter, he filed the charge-sheet against all the three accused persons on 27.3.1992 in the court of J.M.F.C. Chiplun. 3) After the case was committed to the Court of Sessions, the Trial Court framed the charge against the accused persons under Section 302 read with 34, Section 504 read with Section 34 and Section 506 read with Section 34 of the Indian Penal Code. During the Trial, the prosecution examined as many as nine witnesses to prove its case. Amongst these, three were eye witnesses i.e. P.W.No.5-Laxmibai, P.W.No.6-Gangabai and P.W.No.7-Santosh. P.W.No.2 Ramdas Chavan who was :-8-: the Police Patil was examined by the prosecution to prove the extra judicial confession said to have been made by the accused Arjun at about 8.00p.m. on 25.12.1991. P.W.No.3- Sudhakar Pandurang Chavan was examined as a panch on the joint recovery and the two panchanamas of memorandum and discovery were proved through this witness and exhibited as (Exh.20) and Exh.(20A) respectively. P.W.No.4 -Naresh Waman Dhamankar was examined as a panch witness in respect of the panchanama under which the clothes of the deceased were seized. P.W.No.1 Dr. Subhash P. Jawalagikar was the doctor through whom the prosecution proved the post mortem notes. He was the same doctor who had also examined injuries caused to P.W.No.5 Laxmi. He proved injury certificate issued by him to P.W.No.5 Laxmibai (Exh.12). The prosecution also examined two Investigating Officers i.e. P.W.No.8 P.S.I. Bhaskar Mhatre and P.W.No.9- Deputy Superintendent of Police Anand Mandya. The prosecution also proved the C.A. report (Exh.40) and also other relevant documents. 4) So far as the defence of the accused was concerned though in their Statements under Section 313 of Criminal Procedure Code, there was no positive case put up by the accused, yet from the suggestions made in the :-9-: cross examination to the witnesses, it appears to have been the defence case that the three accused had gone to Guhagar and when they were coming back they came across a person lying on the ground. They identified him as Yeshwant who appeared to be injured. They tried to lift him for reaching him to his house and that after having found him dead they threw him down and thereafter, accused Arjun went to the Police Patil to inform him that Yeshwant was lying dead and accused Nos. 2 and 3 went to their home. 5) After considering the evidence led by the prosecution and the statements recorded under Section 313 of the Criminal Procedure Code, for the reasons mentioned in the Judgment, the Trial Court acquitted all the accused from the charges which has led the State to file the present Criminal Appeal. We have heard the learned Advocate for the accused and the learned A.P.P. and perused the record. 6) Firstly, it is necessary to deal with the prosecution case as has been unfolded through the evidence of the three eye witnesses P.W.No.5 Laxmibai, P.W.No.6 Gangabai and P.W.No.7 Santosh. :-10-: 7) P.W.No.5 Laxmibai stated in her evidence that she was the mother of the deceased Yeshwant. That, on the day of the incident i.e. 25.12.1991 at about 7.30p.m. he heard cry "bay bay" and so she went towards that sound. She reached in front of the house of Parvati Vishnu Bhekare. She saw accused Nos. 1 to 3 assaulting her son with ribs. She tried to intervene but all the accused pushed her and therefore, she fell down and received injuries on her knee and shoulder. In the mean while P.W.No.6 Gangabai and P.W.No.7 Santosh came to the spot. They were having a battery with them. However, since they were threatened by the accused, they left the spot. She remained there. Deceased Yeshwant was lying in a pool of blood. She stayed there for some time and then left the spot. Yeshwant was lying on the spot. After some time Police Patil came to her house for making an enquiry. She informed him the names of the assailants. He then went away. On the next day morning she was sent for medical examination. She did not know why Yeshwant was killed. In her cross examination she interalia stated that she did not know whether during the life time of Yeshwant there was any talk in the wadi that Yeshwant was maintaining illicit relations with the ladies of their wadi. She did not know whether villagers had made any :-11-: such complaints to the Police Patil. She stated that though there were complaints of the villagers, nobody had caught Yeshwant red handed. She denied that her son Yeshwant indulged in such activities. She stated that the accused persons were residing at a distance of 100 paces from her house. She stated that height of the roof of the house of Parvati was about 4ft. from the ground and the night bulb was below the roof in a hanging condition. That, the power of the bulb was of low wattage. That the distance of the spot of incident was 50 paces from the eastern border of the courtyard of the house of Parvati Vishnu Bhekare. That, on hearing the shouts of her son Yeshwant, she must have crossed 50-paces till she reached the spot from where she witnessed the incident. She stated that the entire incident of assault lasted for 30 minutes. She stated that she had disclosed the names of all the three accused to the Police Patil. She denied that she did not hear the shouts of her son Yeshwant. She denied that while reaching the spot alongwith Police Patil, she fell down and sustained injuries. She stated that her age was about 70 to 75 years. She admitted that she has not specifically stated in her police statement that Santosh was carrying a torch. She further specifically stated that Gangabai and Santosh were :-12-: given threats by the accused. She further admitted that she had not disclosed in the police statement that she had disclosed the names of the accused to the police patil. The defence version stated above was put to this witness. She denied that due to darkness at the spot of the incident, nobody has noticed anything on the spot. She denied that she was not present near the actual spot of the incident. She denied that Yeshwant was killed by somebody else due to previous enmity caused by his immoral character. 8. The second eye witness P.W.No.6 Gangabai stated in her evidence that on the day of the incident at about 7.30p.m., she heard the cry of the deceased Yeshwant "bay bay Mala Vachava". She came out of her house alongwith her son Santosh and went to the spot of incident with a torch. Torch was being carried out by her son Santosh. They came in front of the court yard of the house of Vishnu Bhekare. She saw that Arjun and his sons Atmaram and Santosh were beating Yeshwant by wooden ribs. The mother of Yeshwant was present there and was trying to save her son Yeshwant by intervening. She took the torch from Santosh and lit it. At that time accused Santosh abused them and asked them as to :-13-: why they had lit the torch. She was also threatened by accused Santosh. P.W.No.6 Gangabai and P.W.7 Santosh then went back to their house. Subsequently, during the investigation, the police attached the said battery and she identified the accused and the battery torch which has been used by her for witnessing the incident. In her cross examination she stated that after hearing the cries of the deceased she had crossed a distance of 100 paces to reach the spot of the incident. When she heard the shouts she was cooking food in the kitchen. She further stated that the battery torch was purchased in Bombay prior to one year. She and P.W.No..5 Laxmibai were at the same distance from the spot of incident. That they immediately returned from the spot because of the threats. She further deposed that it was possible to see the spot of incident though there was darkness. She denied that she could not see the spot because of long distance. She denied that she and her son Santosh did not go to the spot of incident with a battery torch and did not witness the incident. She admitted that she had not specifically told the police that she had taken the battery torch in her hands from the hands of her son Santosh. She admitted that she has not stated in her police statement that Santosh had abused them when they lit the battery torch. She :-14-: admitted that her husband Ganpat and the deceased Yeshwant were distant cousin brothers. She denied that she was deposing falsely because she was related to Yeshwant. 9. P.W.No.7 Santosh Ganpat Bhekare the third eye witness and the son of P.W.No.6 Gangabai stated that he witnessed the incident. He further stated that on the day of the incident at about 7.30p.m,. he and his mother were in their house. At that time they heard the shouts "bay-bay". Hence, he and his mother went to the spot of incident with a battery torch. He came to the spot and saw in the light of the battery torch that the three accused Arjun, Atmaram and Santosh were beating Yeshwant with wooden ribs. The mother of the deceased Yeshwant was present there. The accused No.3 abused them for lighting the battery torch and therefore, he and his mother left the spot and went to his house. In the cross examination, he has stated that the said torch had been purchased about 4 years back. He admitted that on hearing the shouts, he and his mother did not raise a hue and cry. He denied that he raised shouts and as it was dark, it was not possible to see or identify any person on the road. He admitted that there were other houses of Bhekare near :-15-: the house of Vishnu Bhekare. He stated that he had witnessed the incident. He further deposed that initially he was holding the torch and then it was taken by his mother. He denied that he and his mother had never gone to the spot of incident. He denied that he was deposing falsely because of his relationship with the deceased Yeshwant. 10. The submissions made by the defence can be stated as under: a) That, none of the eye witness could have seen the assault because there was no sufficient light at the place where Yeshwant was alleged to have been assaulted. In this regard reliance was placed on the evidence of P.W.No.2 Police Patil Ramdas Gangaram Chavan who had stated that when he arrived at the spot he found that the bulb on the wooden pole of Padvi was giving insufficient light. He was having a torch and he lit the torch and in the light of torch he saw that Yeshwant Bhekare was lying facing the sky in a pool of blood. He had further pointed out that witnesses P.W.No.6 and 7 were also required to take a torch which was further indication of the fact that there was :-16-: insufficient light. In this regard he further contended that P.W.No.5 had admitted in her cross examination that the height of the roof of the padvi of Parvati was 4ft. and the light bulb was below the roof in a hanging condition and that the power of the bulb was of low wattage. b) It was then contended that the entire evidence relating to witnesses P.W.No.6-Gangabai and P.W.No.7 Santosh shows that they had seen the incident in the light of a torch and the same should be disbelieved because the evidence relating to the production of the torch had infirmities. He contended that the panchanama dated 26.12.1991 (Exh.22)_ under which the said torch was produced and seized indicated that the panchas were called in front of the house of Parvati Vishnu Behkare and were informed that Gangabai Bhekare who had witnessed the incident was producing the torch with which she had seen the accused. It was at this stage that the torch was produced. It was contended that the evidence of P.W.No.6 Gangabai was contrary to the version as contained in the panchanama since she has not categorically stated that the torch was seized. That, if the torch was in her own house, normally the :-17-: police would have seized the torch from her own house. c) That P.W. No.6 Gangabai had omitted to state in her police statement that she had taken the battery torch from the house and it was in the hand of her son Santosh and she had further omitted to state in her police statement that the accused had threatened on the occasion of her lighting the torch. d) The prosecution had not examined any independent witness from the locality though there were an admissions from the witnesses that there were other houses situated at a distance of about 40 to 50 paces from the place of the crime. That from the evidence, it was revealed that all the three witnesses were related to deceased and they were interested witnesses. e) Though the evidence of Laxmi showed that she had disclosed the names of the assailants to the Police Patil, P.W.No.2 Ramdas Chavan had not corroborated the evidence of P.W.No.5 who but had in fact stated that the enquiry was made by him from Parvati Bhekare. 11. On the aforesaid contentions of the defence, the reply of the prosecution was that merely because the :-18-: three eye witnesses were related to the deceased Yeshwant, that by itself would not be sufficient ground to discard their evidence. At the highest their evidence could be carefully scrutinized. The record indicated that there was sufficient light at the spot of the incident. In this regard, it could not be forgotten that the accused were residents of the same village, residing 200-paces from the house of the deceased. That, even assuming that the bulb at the spot of incident was dim and some of the eye witnesses had in fact used a torch, that by itself could not lead to the conclusion that there was insufficient light to notice the incident. 12. The prosecution then contended that the omissions in the evidence of P.W. Nos. 5 and 6 were absolutely minor and irrelevant and were not in the nature of material contradictions. It was contended that the evidence of Laxmi was corroborated by several circumstances including the injuries suffered by her. That, though the Police Patil had stated that Parvati Laxman Bhekare had disclosed the names of the assailants when he came to the house of Parvati, P.W. No.5 Laxmi who had stated that she had disclosed the names of the accused to him was an alias for Parvati. :-19-: 13. After analysing the evidence of the eye witnesses, it is apparent that P.W.No.5 Laxmi Bhekare was the mother of the deceased Yeshwant. In that sense she may be an interested witness, yet this fact alone cannot be a pround for totally discarding her evidence. The law relating to interested witnesses is that their evidence is required to be scrutinized with care and caution. It cannot be said that the presence of P.W.No.5 was unnatural. The record states that the house of P.W.No.5 Laxmi was situated at a distance of 200-paces from the spot of the incident and that is not a very long distance. The shouts in the evening time in the village and a cry for help can easily be heard from the distance of 200ft. She claims to have come to the spot of the incident on hearing the cries for help given by her son Yeshwant. The fact that Laxmi had came to the spot and her version as to what happened there is independently corroborated by several other witnesses. Her presence at the spot is expressly deposed to by other witnesses P.W.No.6 Gangabai, P.W.No.7 Santosh. These witnesses also corroborate her evidence that she was trying to save her son. Laxmi stated that when she was trying to free her son, she was dragged by the accused and therefore, she fell down whereby she :-20-: received injuries on her knee and shoulder. The fact that this witness received such injuries is corroborated by other evidence on record. P.W.No.8 P.S.I. Bhaskar Mhatre has stated in