1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.616 OF 1994 (By Accused no.4 against the order of conviction) Gopal Gangaram Kothavale Appellant (Org.Accused No.4) Vs. The State of Maharashtra Respondent WITH CRIMINAL APPEAL NO.21 OF 1995 (By State against the order of acquittal) The State of Maharashtra Appellant Vs. 1. Nilkantha Arjun Kothavale 2. Shivram @ Bapu Budhaji Kothavale 3. Appa Gangaram Kothavale 4. Gopal Gangaram Kothavale 5. Ravindra @ Ravi Sitaram Kothavale 6. Sunita Appa Kothavale 7. Draupadi Gangaram Kothavale 8. Shankar Sitaram Kothavale Respondents (Org.Accused Nos.1 to 8) WITH CRIMINAL APPEAL NO.22 OF 1995 (By State for enhancement of sentence) State of Maharashtra Appellant Vs. Gopal Gangaram Kothavale Respondent (Org.Accd.No.4) 2 WITH CRIMINAL REVISION APPLICATION NO.336 OF 1995 Hygiene Louis Phillips Petitioner Vs. 1. Nilkantha Arjun Kothavale 2. Shivram @ Bapu Budhaji Kothavale 3. Appa Gangaram Kothavale 4. Gopal Gangaram Kothavale 5. Ravindra @ Ravi Sitaram Kothavale 6. Sunita Appa Kothavale 7. Draupadi Gangaram Kothavale 8. Shankar Sitaram Kothavale 9. The State of Maharashtra Respondents Mr.S.R.Chitnis, Senior Advocate with Mr.Sachin B. Shetye for appellant in Cri.Appeal No.616 of 1994 and with Mr.P.D.Naik for Respondents in Cri.Appeal Nos.21 and 22 of 1995. APP for State in all the matters absent. Mr.M.H.Pereira with Mr.G.B.Tirodkar for petitioner in Criminal Revision Application No.336 of 1994. CORAM: S.S.PARKAR & ANOOP V.MOHTA,JJ. 17th, 18th, 21st & 22nd March, 2005. ORAL JUDGMENT (PER S.S.PARKAR,J) 1. The above appeals and revision application have been filed against the judgment and order dated 30th September 1994 delivered by the Additional Sessions Judge, Sawantwadi in Sessions Case No.16 of 3 1987 convicting accused no.4 for offence under Section 304 Part II of IPC and sentencing him to RI for seven years and to pay a fine of Rs.1000/- in default RI for six months and acquitting the other accused being accused nos.1, 2, 3 and 5 to 8. Accused no.4 who was convicted by the aforesaid judgment has challenged the order of his conviction and sentence by filing Criminal Appeal No.616 of 1994. The order of acquittal is challenged in Revision Application by PW 7 Hygiene, who is the injured son and brother of the two persons who died in the incident in respect of which the accused were facing trial. Criminal Appeal No.21 of 1995 has been filed by the State challenging the order of acquittal of all the accused including accused no.4 who was acquitted for offence under Section 302 of IPC. Criminal Appeal No.22 of 1995 is filed by the State for enhancement of the sentence imposed on accused no.4 for offence under Section 304 Part II of IPC. All the aforesaid appeals were admitted. The State appeals against the order of conviction as well as sentence were admitted by this Court on 18/9/1995 on which date the same Bench directed the Criminal Revision Application filed by PW 7 to be heard along with Criminal Appeal No.21 of 1995 filed by the State 4 against the order of acquittal. That is how the said revision application is also placed on board along with the aforesaid appeals. Since all the appeals and the revision application are directed against the same judgment in respect of the same sessions case all the aforesaid proceedings are being disposed of by this common judgment. 2. The hearing of these appeals commenced on 4th March 2005 but this Court learnt today only i.e. on 17th March 2005 about the death of accused no.8 when Mr.Pereira appearing for the complainant in the revision application informed us that he had learnt that accused no.8 had died. We, therefore, enquired from his Advocate on record who confirmed that accused no.8 had died about three years ago and he would produce his death certificate on Monday, 21st March 2005. Advocate appearing for accused no.8 ought to have brought to our notice the said fact earlier and not waited until we enquired about it from him after the said fact was brought to our notice on behalf of the complainant. If accused no.8 has died, in that case the appeal filed by the State against him abates. 5 3. Before we proceed with the judgment in these appeals on merits it is necessary to deal with the application dated 16th March 2005 signed by the two Advocates on record appearing for all the accused and presented to this Court yesterday i.e. on 16th March 2005 at the fag end of the day just before rising at 4.40 p.m. by Shri S.R. Chitnis, submitting that the State appeals deserve to be dismissed. In the said application reference is made to the non appearance of the Public Prosecutor on 10th, 14th, 15th and 16th March 2005 and stated that the defence had concluded the arguments on 16th March 2005 at 2 p.m. and had already raised oral objections to the hearing of the arguments by Mr.Pereira who represents the petitioner who has filed Criminal Revision Application No.336 of 1994. It is stated that Mr.Pereira though had appeared as a special Public Prosecutor in the trial Court had not been appointed by the State in this Court. It is further stated therein that the criminal revision application had not been admitted and the only prayer in the revision application is for remanding the matter as required under Section 401(3) of Cr.P.C. and since no arguments had been advanced on behalf of the State by the Public Prosecutor, the State appeals are liable to be 6 dismissed. 4. We must make reference to the disturbing feature experienced by us in the course of hearing of these appeals right from the first day which has culminated into or been given finale by the above written objection presented by the senior counsel appearing for the accused. The senior defence counsel in the course of hearing of these appeals had interrupted the proceedings of this Court raising objections about the non appearance of the Additional Public Prosecutor in the matter and urging us not to give any hearing to Mr.Pereira who is appearing for the revision applicant, in spite of the fact that he was told again and again by us that by way of assistance we can hear any advocate and for that matter even appoint somebody to assist us. On Thursday, 10th March 2005 the learned counsel, to our utter surprise, went to the extent of telling us when we assembled for the afternoon session that he would not continue his arguments unless the Public Prosecutor comes to the Court and takes notes of the arguments advanced by him. We tried to persuade the learned counsel to continue his arguments in the absence of the Public Prosecutor hoping that he would 7 attend the court next day. But the counsel refused to resume his arguments for a span of 45 minutes that afternoon. At his instance we had even sent for the Public Prosecutor In-charge of that office but he also did not turn up. The counsel then went to the extent of forewarning us that on the next day if the Public Prosecutor did not attend this Court he would not continue his arguments. Still we showed our patience and tried to persuade him to continue his arguments though we were at that moment aware that his own conduct was nothing short of interfering or tending to interfere with this Court’s judicial proceedings. 5. Mr.Chitnis was aware that the learned Public Prosecutor who was assigned these appeals was not keeping well and, therefore, had left. Neither he attended the Court thereafter nor any other Public Prosecutor was deputed to substitute him on behalf of the State in these appeals which demonstrates the lack of sense of any responsibility on the part of the office of the Public Prosecutor, High Court, Bombay. Mr.Chitnis had even submitted before us that the conduct of the office of the Public Prosecutor and especially the Public Prosecutor In-charge not 8 attending this Court in spite of the word sent to him amounted to contempt of this Court being oblivious that his own conduct in refusing to resume his arguments for 45 minutes in the afternoon of 10th March 2005 and also forewarning us that on the following day he would not continue his arguments unless the Public Prosecutor remains present in the case to take down notes of what is argued by him in the matter itself amounted to obstructing this Court’s proceedings as envisaged under Section 2(c)(ii) of the Contempt of Courts Act. It is necessary to mention that right from the first day of hearing Mr.Chitnis was repeatedly telling us that this Court cannot hear Mr.Pereira who is appearing for the petitioner in criminal revision application filed against the order of acquittal. From the attitude of the learned Counsel it appears that he did not want Mr.Pereira to assist us in the matter on behalf of the complainant though that revision application was directed by the earlier Division Bench, while admitting the State appeals, to be placed along with the State appeals. Such attitude was not expected from a senior counsel, nay, not even from a junior member of the Bar. 9 6. The said application invokes section 401 of Cr.P.C. under which the High Court’s powers of revision have been mentioned. We are quite aware of the limitations of this Court while exercising revisional jurisdiction under Section 401 of Cr.P.C. but the counsel conveniently ignored the earlier provisions of the same Code with reference to the powers of this Court which provide for procedure of hearing of appeals filed by both, the accused as well as by the State, which are embodied in Sections 385 and 386 of the Code. Though section 386 of the Code in an appeal against conviction empowers this Court to dispose of the appeals after perusing the record and hearing the appellant or his pleader if he appears and the Public Prosecutor if he appears, the same provision empowers this Court to dispose of the State appeals against the order of acquittal as well as for enhancement of sentence after hearing the accused if he appears either by dismissing or reversing the order of acquittal and find accused guilty and pass sentence on him according to law. The said provision does not even provide for hearing the Public Prosecutor in State appeals. Thus this Court is sufficiently empowered to dispose of the 10 appeals filed by the State whether against the acquittal order or for enhancement of sentence either in favour of the State or against it even in the absence of the Public Prosecutor after hearing the accused, if he appears. The said provisions have been interpreted by the Supreme Court in the case of Bani Singh v. State of U.P. reported in 1996 1996 1996 Cri.L.J. Cri.L.J. Cri.L.J. 3491 3491 3491. It would be quite apposite to quote only the most relevant observations of the Supreme Court interpreting Sections 385 and 386 of the Code. It is observed in para 14 of the judgment as follows: "The plain language of S.385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and S.386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Ss.385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the 11 Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record." As observed earlier, Section 386 refers not only to the appeal against conviction but also against the order of acquittal and for enhancement of sentence filed by the State. Therefore, the application dated 16th March 2005 taking objection on behalf of the accused and seeking dismissal of the State Appeals on the ground of absence of the Public Prosecutor is misconceived and illegal and the same is rejected as being frivolous. 7. As regards the merits of this case the incident in which two persons Louis Fernandes and his 12 son Remi were murdered had taken place on 11th January 1987 between 4 and 4.30 p.m. in hissa no.3 of new survey no.196 being old survey no.376 situated in village Bilewadi, Taluka Sawantwadi of Dist.Sindhudurg. Deceased Louis, who was resident of Sawantwadi, was having about 125 acres of agricultural lands in village Bilewadi which is about 12 Kms. from the town of Sawantwadi which is a taluka place. He was having five sons out of whom one son by name Remi also had met homicidal death along with Louis himself on the date of incident. The other two sons who were present at the place and time of incident by name Jerome and Hygiene are injured eye witnesses who have been examined as PW 1 and PW 7 respectively. One more son of Louis by name Victor, who was not present at the place and time of incident, had gone to Banda police station to call the police after seeing his brother Remi dead and others injured at the place of incident. 8. There was dispute between deceased Louis and the accused persons as regards the right of way on the pathway which passed from the property of Louis viz. Hissa No.3, survey no.196 between village Uthawane and Bilewadi. Deceased Louis was owner of 13 survey nos.371 and 372 as well as part of old survey no.376 which was newly numbered as survey no.196. Out of the survey number 196 Louis was owner of hissa nos.2, 3 and 7 only. In the year 1985 Louis had planted mango graft trees in his survey nos.371 and 372. Some of the accused persons along with others had filed Regular Civil Suit No.80 of 1986 against Louis and his family members claiming easementary rights on the pathway which passes through hissa no.3 of survey no.196. The plaint in that suit has been produced on record by the prosecution at Exhibit 58. In the said suit an application for temporary injunction was also filed which was not granted by the Civil Judge Junior Division, Sawantwadi observing in his order dated 22/4/1986 that no specific document was produced to show prima facie easement and the notice was directed to be issued to the defendants. In the year 1986 Louis had applied to the office of the District Inspector of Land Records for carrying out survey of his lands being survey no.196, hissa nos.2, 3 and 7 which was fixed sometime in the month of May 1986. As the DILR authorities found that there were bushes on the land to be surveyed existence of which would not have enabled them to take proper measurements, no measurements 14 were taken in May 1986 which is clear from Exhibit 61 produced by the prosecution on the record. After the rainy season, Louis had again applied to the office of the DILR for taking survey of his aforesaid land pursuant to which he had received notice dated 1/1/1987 (Exh.62) fixing 16th and 17th January 1987 as the dates for taking measurements of his land. In the said notice it was made clear to him that since the said land is having bushes which obstruct taking measurements in the land, the measurements will not be taken unless and until the bushes are cleared. With a view to ensure that the bushes from the land in possession and ownership of Louis alone are removed for the purpose of facilitating taking of measurements in the land in question by DILR officers on 16th and 17th January 1987, deceased Louis hired the services of a retired Government officer PW 12 Gangaram Naik who had retired from the office of the District Inspect of Land Records, to show him the bushes required to be removed from his land. PW 12 Naik went to the said survey number along with Louis and Police Patil in the morning of 11th January 1987. After the area of the land under the ownership of Louis was demarcated by PW 12 Naik the said witness as well as the Police Patil left the place. Deceased 15 Louis along with his three sons deceased Remi, PW 1 Jerome and PW 7 Hygiene were in the said land on that day. They had engaged the services of three servants PW 6 - Phelix, PW 8 - Bapu and one Namdeo for removing the bushes from the said land. That work started at about 3 p.m. that afternoon. While the work was still in progress accused nos.6 and 7, who were two ladies, came there at about 4 p.m. and questioned Louis and his sons as to why they were removing bushes from their land. When the two ladies were questioning Louis and his sons, other accused i.e. accused nos.1 to 5 and 8 arrived there armed with solid bamboo sticks in their hands and started assaulting the deceased. Initial assault was given by accused no.3 with a stick on the head of Louis as a result of which he fell on the ground. When the three sons present there Remi, complainant Jerome and Hygiene went to rescue their father Louis, the sons were also assaulted by the accused. Complainant Jerome and PW 7 Hygiene took to their heels and took refuge in their farm house which was on the northern side of the place of incident in the same Hissa No.3. The said farm house is locally called as "manger". Louis and Remi were brutally beaten there. At about 6 p.m. Victor, son of Louis arrived at the place of 16 incident to find Remi dead. He went to the farm house where he told Jerome that their brother Remi was dead. Victor then went to Banda police station to inform them and call the police for help. The Sub Inspector Mahadik who was present there wanted to record the statement of Victor but he was in a trauma and was not in a position to give any statement. As it is he had no personal knowledge about the incident in question. Police, therefore made entry in the station diary which is produced on record at Exhibit 175 in which mention is made about the death of Remi due to the assault on him with a sickle locally known as "Palkoyta" which has a long wooden handle. The police, therefore, came to the place of incident at about 9 p.m. along with Victor and took brutally injured Louis, complainant Jerome and PW 7 Hygiene to the Sawantwadi Cottage Hospital leaving Remi, who was already dead, there. They reached hospital at about 10 p.m. Louis had died by the time they reached the hospital and, therefore, he was declared dead by the doctor in the said hospital before his admission. In the said hospital police took down the complaint of PW 1 Jerome which is produced on record at Exhibit 67 which mentions in detail as to how the incident took place and the assault which was seen by him until he 17 ran away and took shelter in the farm house. During the period after the incident and before the injured were removed to the hospital by the police, three villagers happened to go to the place of incident and see the injured who have deposed that injured had told them about the assault by accused no.4 and other Kothawales. It may be mentioned here that before Victor had reached at Banda police station, accused no.3 along with his wife had already gone to the said police station and lodged the complaint against Hygiene PW 7, deceased Louis, deceased Remi and PW 1 Jerome stating therein that they were assaulted by these people at about 4.15 p.m. as a result of which he received the injury on his back and his wife - accused no.6 received abrasion. Both of them were sent to the hospital for examination by doctor. 9. When the police went to the scene of offence at about 9 p.m. and took the injured to the hospital including deceased Louis who was that time breathing, the police had left Remi at the place where he was lying dead as there was no question of giving him any medical aid. Police Constable Londhe and others had returned to the scene of offence at about 12.30 in the night and stayed there through out the night as 18 Remi was lying dead. Following morning PSI Banda went to the place of incident and drew the inquest panchanama (Exh.17) on Remi’s body and also drew spot panchanama (Exh.88). Heels of both the legs of Remi were chopped off. Both the dead bodies were sent for post mortem examination. The Investigating Officer Dy.S.P. Bhujangrao who was then Sub Divisional Police Officer, Sawantwadi, after directing the PSI Banda to draw inquest panchanama on the dead body of Remi, had left the spot for search of the accused in the adjoining jungle. Four accused being accused nos.1, 2, 4 and 5 were traced in the jungle who were taken into custody by the police at the place of offence. The I.O. drew the scene of offence panchanama (Exh.88). From the place of incident pairs of leather slippers of the deceased and the witnesses were seized. Four big and small stones having blood on them were also attached under the spot panchanama. There was one broken denture found at the place of offence which was belonging to deceased Louis. Same day accused no.3 was also arrested. The accused were sent for medical examination after their arrest. The house of accused nos.1 to 5 was searched. The family members of the accused had produced the clothes which were washed 19 but had some stains on them. Those clothes were attached under panchanamas (Exhs.89 to 92). Same day accused no.4 had made a statement and volunteered to produce sickle (palkoyta) and wooden stick concealed by him in the shrubs by the side of the pathway going to Bilewadi. Accused nos.1, 2, 3 and 5 had also volunteered to produce the bamboo sticks which were hidden by them after the incident. They were seized under recovery panchanamas. On 14/1/1987 two lady accused, accused nos.6 and 7, were arrested. Accused nos.1 to 7 were sent to the Cottage Hospital, Sawantwadi for taking their blood samples. On the same day supplementary statements of complainant Jerome and PW 7 Hygiene were recorded. Their clothes were attached under panchanamas, Exhs. 94 and 95 respectively. Accused no.8, Shankar Kothawale was arrested on 14/1/1987. On 15/1/1987 blood samples of complainant Jerome and PW 7 Hygiene and of accused no.8 were also taken. Various seized articles, the blood samples of the witnesses and the accused were sent to the office of CA at Pune vide forwarding letter dated 18/1/1987 which had reached that office on 19/1/1987. The CA reports dated 30th June 1987 (Exhs.183 to 191), dated 31/7/1987 (Exhs.192 to 194) and dated 30/10/1987 (Exhs.195 & 196) were received. 20 After completion of the investigation charge-sheet was filed in the Court of the Judicial Magistrate, Sindhudurg at Sawantwadi on 25/2/1987 against accused nos.1 to 8. Subsequently on 4/4/1988 (Exh.197) letter was sent to the District Inspector of Land Records requesting him to draw the map of scene of offence. The map drawn by the District Inspector of Land Records of the scene of offence is produced at Exhibit 144. 10. After committal of the case to the Sessions Court charges were framed against all the