1 CRI. APPEAL NOS. 607.2002 & 611.2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 607 OF 2002 1] Datta S/o Lingappa Pothphale Age : 45 years, Occu.: Agri., R/o Shevdi (Bajirao), Tal. Loha District Nanded 2] Vaijinath S/o Babarao Dhonde Age : 30 years, Occu.: and R/o as above 3] Mahadu S/o Baba Dhonde Age : 30 years, Occu.: and R/o as above ... Appellants (Orig. Accused nos. 1,4 and 12) V E R S U S * The State of Maharashtra (Copy to be served on Public Prosecutor, High Court, Bombay, Bench at Aurangabad) ... Respondent WITH CRIMINAL APPEAL NO. 611 OF 2002 1] Vishwanath Ramrao Fulzalke Age : 32 years, Occu.: Agri., R/o Shevdi Bajirao, Tal. Loha District Nanded 2] Baburao Ramrao Fulzalke Age 35 years, Occu.: and R/o as above 3] Sadashiv Kashinath Narangale Age 25 years, Occu. and R/o as above ... Appellants (Orig. Accused Nos. 2,5 and 11) 2 CRI. APPEAL NOS. 607.2002 & 611.2002 V E R S U S * The State of Maharashtra (Copy to be served on Public Prosecutor, High Court, Bombay, Bench at Aurangabad) ... Respondent ... Mr. S.G. Laddha, Advocate for Appellants in Criminal Appeal no. 607 of 2002. Mr. S.M. Godsay, Advocate for Appellants in Criminal Appeal no. 611 of 2002. Mr. S.V. Kurundkar, A.P.P. for respondent-State (in Both the Appeals). Mr. Vijay Sharma, Advocate to assist the A.P.P. (In Criminal Appeal no. 611.2002) CORAM: P.V.HARDAS AND A.V.NIRGUDE, JJ. DATE OF RESERVING THE JUDGMENT : 5TH DECEMBER,2009 DATE OF PRONOUNCING THE JUDGMENT : 10TH DECEMBER,2009 JUDGMENT [PER : A.V. NIRGUDE, J.] 1] Both these Appeals can be disposed of by this common judgment as the appellants are challenging the judgment of conviction passed by the learned Joint Additional Sessions Judge, Nanded in Sessions case no. 216 of 1998. All the appellants were convicted for the offences punishable under section 147, 148, 307 r/w. section 149 Indian Penal Code. All of them were sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.5000/- with the default stipulation. They were not awarded 3 CRI. APPEAL NOS. 607.2002 & 611.2002 separate sentences for the offences punishable under section 147, 148 of the Indian Penal Code. There were in all 13 accused in this case out of which accused nos. 3,6,7,8,9,10 and 13 were acquitted. 2] The facts leading to the case are as under:- . There was long standing enmity between two groups of village Shevdi Bajirao, Tq. Loha, Dist. Nanded. One group was headed by Babarao and Kailash Dhonde (for short to be referred as the "Dhonde party") and the other headed by Ramrao Pothphale (for short to be referred as the "Pothphale party"). There were several instances of violence that occurred earlier to the incident in question. Both the parties earlier had lodged complaints against each other. The details of which would be discussed in further narration in this judgment. . The incident occurred on 1.7.1997. Ramrao Pothphale leader of Pothphale party on that day early in the morning at 7:00 am., reached the bus stand of the village near Basveshwar Chowk. He was accompanied by the members of his group namely his son Tanaji and Rajaram. They were waiting for the bus at the bus stand. At that time, the appellant and other accused gathered and with the help of sticks, swords, axes, kattis etc. and assaulted Ramrao and Rajaram. Appellant 4 CRI. APPEAL NOS. 607.2002 & 611.2002 Mahadu (appellant no.3 of Criminal Appeal no. 607 of 2002) had sword with which he launched attack on Ramrao. [Henceforth the appellants would be referred by their names instead of their individual serial number in these Appeals.] The other appellants and other accused joined the assault. Ramrao sustained number of injuries including severance of his little finger of left hand. The appellants and accused even launched attack on Rajaram and caused him severe injuries. After the attack all the assailants left the spot. Injured Ramrao and his son Tanaji hired a jeep and proceeded towards Sonkhed Police Station. They reached there at about 9:15 am. The Police Station Officer took entry on their arrival at the Police Station in the Station diary and then deputed Head Constable Ranveer to accompany Ramrao and Tanaji to the Civil Hospital, Nanded. At about 10:15 am. Ramrao was admitted to the Civil Hospital, Nanded. On the other hand, other injured Rajaram left the spot and went to the house of one of the prosecution witnesses namely Sarubai and after some time the appellants took him to the Civil hospital at Nanded where he was also admitted and treated. Police Head Constable Ranveer who accompanied Ramrao to the hospital asked Ramrao to make his statement and rather belatedly at about 4:30 pm. on that day Ramrao recorded his statement which was treated as the F.I.R. At 5:30 pm. on that day the Police registered offence of rioting with attempt to 5 CRI. APPEAL NOS. 607.2002 & 611.2002 commit murder against the appellants and the other accused. . Prosecution witness no.14 P.S.I. Mairal investigated the offence and sent the chargesheet. Thirteen (13) accused faced trial and as said above vide the judgment dated 7.10.2002, the learned Additional Sessions Judge, Nanded convicted the appellants. This judgment is challenged in these two Appeals. 3] The prosecution case rests on the depositions of the injured and the eye witnesses who deposed as to how the incident occurred. The prosecution also depends on panch witnesses and the Medical Officer who examined the injured in this case and issued the injury certificates. The main thrust of the appellants is that the prosecution case is not believable at all. It is their case that the incident of assault on the victim Ramrao and Rajaram did not take place at about 7:00 am. to 8:00 am. on that day, but it took place later during that morning. It is their case that on that day at about 8:30 am., the injured in this case namely Ramrao and Rajaram and 31 others belonging to Pothphale party launched attack with deadly weapons on one of the named assailants in this case namely Babarao Dhonde at Chikalewada and killed him instantaneously. It is further their case that after this assault when Ramrao and Rajaram were escaping, unknown villagers assaulted them and got them injured. 6 CRI. APPEAL NOS. 607.2002 & 611.2002 4] The questions therefore, are: (i) Whether the prosecution proves that the incident in this case had occurred earlier during the morning between 7:00 am. to 8:00 am.? (ii) Whether the prosecution case is believable, inasmuch as whether it proved the case as against the appellants beyond reasonable doubt? 5] Let us now discuss the evidence. P.W. no.6 Ramrao, who is also the complainant said that on that day at about 6:30 am., he went to bus stand of the village for catching a bus to Loha. He said Rajaram (other injured person) met him on the road. He too joined him to go towards the bus stand. He said, at that time he noticed one jeep standing at the bus stand and the driver of the jeep was changing the wheel of the vehicle. He said, he and Rajaram boarded the jeep when the driver almost fixed the tyre. He noticed on the rear side of the jeep, that the appellant Vaijanath was walking towards the bus stand with a bundle of fodder on his head. He also noticed that Vaijanath then put the bundle of fodder down on the ground. Suddenly he noticed appellants Baburao, Sadashiv reaching near the jeep. They pulled him out of the jeep and started beating him with fists. They then took him at the backside of the jeep. The assailants then took out weapons such as sticks, swords, choppers, axes from the bundle of the fodder. He said, appellant Mahadu 7 CRI. APPEAL NOS. 607.2002 & 611.2002 dealt sword blow on his right shoulder, appellant Sadashiv dealt an axe blow on his head and he fell down. He said he was lying on his left side and so the other accused showered blows of their weapons on his right side. He said they even dealt stick blows on his left leg. He said, besides these assailants, there were others whom he named. He named 16 assailants which included the name of one Babarao. He said, while this was going on, his companion, Rajaram tried to protect him by laying over him. He said the assailants beat up even Rajaram. The other accused were asking him not to intervene. He said Rajaram was taken to village side, whereas he fell unconscious. He said, his cousin Sarubai was present at the bus stand. After some time his wife Vatsala and his son Tanaji came there. He said, he then went to Sonkhed Police Station at about 9:00 am. And from there he went to the Civil Hospital, Nanded. 6] P.W.4 is injured Rajaram. He narrated the incident as follows:- . He said, at about 7:15 am. on that day he was present at the bus stand. He said, one Devidas the driver of the jeep was changing the wheel of his vehicle. He said, he went near the vehicle and alongwith Ramrao boarded the jeep after the wheel was replaced. He said, at that time, assailants Babarao, Sadashiv and other 14 persons came near the jeep. He also noticed the 8 CRI. APPEAL NOS. 607.2002 & 611.2002 appellants Mahadu, Vaijanath, amongst the assailants. He said, thereafter, appellants Babu and Sadashiv pulled out Ramrao from the jeep. He noticed a chopper in the hand of appellant Baburao and an axe in the hand of appellant Sadashiv, a sword in the hand of appellant Mahadu and other weapons in the hands of other accused. He said, assailants attacked Ramrao with the weapons. He said, he tried to protect Ramrao by laying over his person, but the assailants pulled him away and he said, appellant Baburao dealt blows of chopper on his left leg and left hand. He said, then appellant Vishwanath dealt blows on his right leg and right hand. Appellant Sadashiv dealt an axe blow on his head and appellant Datta hit him with stick and stone. He said both of them sustained bleeding injuries all over their person. Their clothes got soaked with their blood. He said he fell unconscious and when he regained consciousness, he said, he was at the house of Parvatibai. 7] The third prosecution witness is P.W.2 Sarubai. She said, at about 7:00 am. to 7:30 am., on that day, she had gone to the bus stand. She said her son was to proceed to Nanded. She said she noticed Ramrao and Rajaram boarding the jeep near the bus stand. She then said, she noticed appellant Sadashiv pulling out Ramrao from the jeep. She said she saw appellant Baburao beating Ramrao with a chopper in his hand. She also 9 CRI. APPEAL NOS. 607.2002 & 611.2002 noticed appellant Mahadu and other accused Kailash assaulting Ramrao with weapons in their hand. She added that the assailants named above, assaulted Rajaram also. 8] The fourth eye witness for the prosecution case, is the prosecution witness no.3 Hanmanta. He said, Ramrao was his cousin and that at about 7:00 am. - 7:15 am., on that day he was proceeding towards his agricultural land with his cattle. He said when he reached near the bus stand of the village, he saw Ramrao while sitting in the jeep was being beaten up by some persons. He saw the assailants pulling Ramrao out of the jeep. He identified appellant Baburao, appellant Mahadu, appellant Vishwanath, appellant Sadashiv and other accused amongst the assailants. He said he noticed appellant Baburao with katta in his hand and appellant Mahadu had sword. He said others had sticks and axes in their hands. He said Ramrao was assaulted but he could not intervene. He said Rajaram was also beaten up in the incident when he tried to protect Ramrao. 9] The next eye witness for the prosecution was prosecution witness no.7 Madhav. He said, on that day at about 7:00 am. - 7:15 am., he was present at the bus stand. He said, he noticed Ramrao and Rajaram at the bus stand. He said, Devidas was the driver of his jeep. He said Ramrao was occupying middle row of the jeep, 10 CRI. APPEAL NOS. 607.2002 & 611.2002 whereas Rajaram took the backseat. He said, at that time he noticed the appellant Vaijanath arrived at the spot with a bundle of fodder. He said, he saw Vaijanath putting down the bundle near the jeep. He said, he saw appellant Baburao and Mahadu taking out sword and katta from the bundle. He then noticed appellant Baburao pulling out Ramrao from the jeep and delivering a blow of chopper on Ramrao. He said Ramrao fell down and shouted for help. He said appellant Mahadu then dealt sword blow to Ramrao. He said he saw about 13-14 persons as the assailants who were not allowing anyone to go near Ramrao to help him. He then named those 13-14 persons including the appellants Vishwanath, Vaijanath, Sadashiv, Datta. He said all these persons had sticks and weapons in their hands. He said he ran away from the spot, anticipating assault on him. 10] We have narrated the gist of the examination in chief of all these eye witnesses including the victims. We have no difficulty in accepting the prosecution case as to the time of the assault. We are inclined to believe that this incident of assault on Ramrao and Rajaram had taken place prior to 8:30 am. on that day. There is no doubt in our minds that victim Ramrao was taken to Police Station on that day at about 9:15 am. in injured condition because the station diary entry regarding the same was taken. P.W. no.11 Police Head Constable Ranveer vouched for this 11 CRI. APPEAL NOS. 607.2002 & 611.2002 incident. He said on that day, he was on duty at the Police Station and at about 8:30 am. - 8:45 am., Tanaji came to the Police Station in a jeep alongwith injured Ramrao. He said, Tanaji informed to the Police Station Officer one shri Dabhanwad that Ramrao was assaulted by members of Dhonde party. During the cross-examination, this witness was shown the station diary entry which was then marked as exhibit 122. The entry clearly shows that Tanaji and Ramrao arrived at the Police Station at about 9:15 am. Barring the discrepancy in time, there is nothing on record to disbelieve P.W.11's deposition that Tanaji and Ramrao had gone to the Police Station and that Ramrao was in injured condition. It has also come in the evidence that village Shevdi is about 7-8 km. away from Sonkhed Police Station and the jeep would take about 15 minutes to reach from the village to the Police Station. It is thus clear that before 9:00 a.m, the incident of assault on Ramrao and Rajaram had taken place and so, it cannot be held as suggested by the defence, that the incident took place after the other incident in which Babarao was done to death at Chikalewada at about 9:00 am. on that day. 11] The first and the foremost lapse in the prosecution case is the delay that occurred in recording of the F.I.R. The P.W. 6 Ramrao as said above, was certainly taken to the Police Station at about 9:15 am. and the Police personnel 12 CRI. APPEAL NOS. 607.2002 & 611.2002 noticed him in injured condition. He was growning with pain and it was certainly prudent on their part not to detain him for recording his statement. One may also accept their case that they did not record Tanaji's statement in detail and that they realised that Tanaji and Ramrao should first go and reach the Civil Hospital. They were certainly concerned about timely medical treatment and they rightly prioritised the sending of Ramrao to the hospital. We may not be able to find fault in the prosecution case on this aspect. What is pertinent and relevant is the event that took place thereafter. According to the prosecution case, Ramrao and Rajaram and prosecution witness no.11 Ranveer reached the Civil Hospital, Nanded at about 10:15 am. P.W. 6 Ramrao suggested in his examination in chief, that after he reached the hospital, the Doctors there started his treatment and he was not in a position to speak. He said his statement was recorded at about 5:00 pm. However, on this aspect, prosecution witness no.11 Police Head Constable Ranveer has a different story. He said on reaching the Hospital at about 12:00 noon, he asked Ramrao to give his statement. The Medical Officer P.W. 9 Dr. Deshmukh also deposed that he examined Ramrao at about 10:15 am. on that day and that he found him in conscious condition. He also stated that there was no history of unconsciousness. He even further added that both Ramrao and Rajaram were well oriented when he 13 CRI. APPEAL NOS. 607.2002 & 611.2002 examined them. He added that he did not suspect injury to the internal organs of this injured persons. He further certified that there were no injuries to the major veins and arteries. Lastly, but not the least Dr. Deshmukh stated in the cross-examination that when he examined P.W. Ramrao and Rajaram they told him that they were assaulted by 'someone' without naming the assailants. In view of this strong material on record to show that witnesses P.W. Ramrao and Rajaram had ample opportunity to promptly lodge their complaint after they reached the hospital and after they were treated medically. They avoided giving their report. One of them, namely Ramrao, rather belatedly at about 4:30 pm. made his statement to Police Head Constable Ranveer. The question is whether this delay would affect the probative value of the prosecution evidence. We think it would certainly affect it. 12] The day of 1.7.1997 was quite an eventful day for the village Shevdi. As we held above, it is clear that the incident of assault on Ramrao and Rajaram took place earlier in the morning near the bus stand. Subsequently, after about an hour or so, another incident of violence took place. This time it occurred at Chikalewada and an old man aged about 65-70 namely Babarao was targeted in murderous attack. The attack was so fierce that Babarao succumbed on the spot. Even in that case, more than 27 persons were charge-sheeted. 14 CRI. APPEAL NOS. 607.2002 & 611.2002 There is no dispute about the fact that these two instances were perpetrated by the two rival groups of village namely Dhonde party and Pothphale party. It is quite possible that after Ramrao and Rajaram reached the Civil Hospital at Nanded they learnt about the second incident. It has come on record that there were number of visitors meeting Ramrao at the hospital. So, there was strong possibility of Ramrao getting the details of the incident that occurred at Chikalewada. He would also come to know about the contents of the F.I.R. of the incident at Chikalewada in which as many as 33 persons were named as assailants. This clearly looks like an attempt to rope in as many as opponents in a serious criminal case. In retaliation therefore, it was obvious that Ramrao would think twice before he would lodge his report. This time he would try to paint a gaudy picture naming as many as his opponents in the incident of assault on him. This is evident from the deposition of Ramrao. Exaggeration is demonstrated through his deposition and therefore, the delay in recording the F.I.R. would affect seriously the probative value of the entire prosecution case. In this background and keeping this weakness of the prosecution case in the back of our mind, we would now examine the evidence as against each of the appellants. (i)Appellant-Datta: . Prosecution witness no.2 Sarubai did not name Datta as one of the assailants. P.W.3 did not 15 CRI. APPEAL NOS. 607.2002 & 611.2002 name Datta as one of the assailants. P.W.4 Rajaram however, subsequently mentioned that appellant Datta was one of the assailants and that he hit him by stick and stone. However, he does not say as to on what part of his body he sustained injuries due to such blows. The testimony of this witness is seriously affected due to the peculiar event that occurred during the pendency of this trial. [This witness had recorded his statement during the investigation under section 161 of the Code of Criminal Procedure and the Police reduced it into writing and a copy of which was sent with the charge-sheet.] But it so happened in this case that prior to the charge was framed, the learned Judge of the trial Court on 5.11.1999 recorded statements of prosecution witness Ramrao and Rajaram. This exercise was done in order to find out as to whether two other persons namely Manohar and Shivdas could be added as accused in this case. Thus, a previous statement of this witness was recorded at exhibit 19. In this deposition, the prosecution witness Rajaram simply stated that on the day of incident at about 7:00 am. he was present at the bus stand when he was assaulted by some persons with the help of sticks and kattis. He said due to the assault he fell down on the ground and became unconscious. He then said that he could not tell the names of the persons who assaulted him. He specifically said that he did not want to say anything more on that day in connection with the complaint of prosecution 16 CRI. APPEAL NOS. 607.2002 & 611.2002 witness against the Police etc. As said above, this previous statement of this witness was confronted to him during the cross-examination and this witness had audacity to assert as to he could not tell why it was recorded in such a fashion. He further asserted that he did tell the Court on that day that the accused before the Court had come to assault him near the jeep etc. He also said that he had named all the accused during his statement on 5.11.1999 and thus he said that he is not aware as to why the Court did not record such a statement. This assertion of this witness is nothing but a lie. Earlier as said above on 5.11.1999 his statement was recorded in presence of the accused in the properly assembled Sessions Court. In addition to this the defence could bring several omissions from this witnesses recorded by the appellants under section 161 of the Code of Criminal Procedure. We would deal with such omissions at appropriate place in this judgment. Suffice it to say that these witnesses' depositions loses credit-worthiness. . The star of the prosecution witness is prosecution witness no.6 Ramrao. It appears that it was he who was the target of the assault. On one hand he gives particulars of a specific roles attributed to some of the assailants but on the other hand, he sums up his deposition giving only the names of the other assailants. He named assailant Dattu as one of the assailants without ascribing any role to him. Thus, on the face of 17 CRI. APPEAL NOS. 607.2002 & 611.2002 it, this deposition as against the appellant Dattu is quite weak piece of evidence. We would discuss other aspects of Ramrao's creditworthiness while discussing the circumstances against the other assailants. . Next prosecution witness is P.W. no.7 Madhav. He also describes the incident in two parts. In first part he described the particular roles attributed to some of the assailants and in the other part, he simply mentioned the names of the other assailants. In that list he named appellant Datta as one of the assailants. He does not say as to whether Datta was holding any weapon in his hand particularly. So, except prosecution witness Rajaram,