-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APELLATE SIDE CRIMINAL APPEAL NO.936 OF 1988 CRIMINAL APPEAL NO.936 OF 1988 CRIMINAL APPEAL NO.936 OF 1988 1. Tukaram Bhima Kesarkar, age 26 years. 2. Pandurang Bhima Kesarkar, age 38 years, both residents of Belgundi, Taluka Gadhinglaj, District Kolhapur. (At present detained in Yerawada Central Prison, Yerawada, Pune). .. .. Appellants/ Orig. Accused Versus The State of Maharashra. .. .. Respondent Mr.D.A. Nalavade for Appellants. Mr.Dilip Bagwe, Special Public Prosecutor with Mr.D.S. Mhaispurkar, APP for Respondent. CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & A.S. OKA, JJ. A.S. OKA, JJ. A.S. OKA, JJ. DATED : 1ST NOVEMBER 2004 DATED : 1ST NOVEMBER 2004 DATED : 1ST NOVEMBER 2004 ORAL JUDGMENT : (Smt.Ranjana Desai, J.) ORAL JUDGMENT : (Smt.Ranjana Desai, J.) ORAL JUDGMENT : (Smt.Ranjana Desai, J.) 1. The appellants (original accused nos.1 and 2, respectively for convenience) were tried in the Court of the Additional Sessions Judge, Kolhapur -2- in Sessions Case No.62 of 1986 for offence under Section 302 read with Section 34 of the Indian Penal Code (for short, the "IPC"), for having committed the murder of one Jotiba Vishnu Powar in furtherance of their common intention on 22.3.1986 at 9 p.m. in village Belgundi. 2. At the trial, the case of the prosecution was as follows:- . The accused and the deceased were the residents of village Belgundi. The deceased was a distant relative of the accused. About six months prior to the date of incident i.e. 22.3.1986, according to the prosecution, accused no.1 had stolen a bag of Kulathi belonging to the deceased and his father P.W.6 Vishnu Babu Power. He was caught red-handed by Vishnu with a bag. He was to be taken to the police patil of the village. However, the matter was settled amicably through the relatives. It appears that this resulted in strained relationship between the accused and the deceased. 3. On 22.3.1986, the accused accompanied by one Wandre was passing by the side of the cattle -3- shed of P.W.6-Vishnu. Wandre entered the cattle shed to see a pair of bullocks which Vishnu had purchased on that day. Accused no.1 was waiting for Wandre to come on the road. The deceased saw him standing there and accosted him. A quarrel ensued between the two. In that quarrel, accused No.1 slapped the deceased. This altercation got over. Thereafter, accused no.1 was going to his house. The deceased had gone to fetch water from the public bore-well near the house of P.W.2-Shankar Patane. After some time, the deceased and both the accused started quarrelling. There was a scuffle between the two. Both of them came before the house of P.W.2-Shankar Patane. By that time, Shankar Patane came there from his field. He kept his spade and sickle near the door of his house. He intervened to separate the scuffle. However, accused No.1 dealt a blow on the left base neck of deceased Jotiba with a sickle. As a result, the deceased was seriously injured. He ran towards the house of P.W.2-Shankar Patane. He entered the house from the first apartment, came out and fell in the corn-ears spread in the court-yard. P.W.3-Sudhakar Shankar Patane, P.W.5-Parvati Shankar Patane and Prabhakar Shankar Patane -4- witnessed the said incident. 4. On seeing the incident, Prabhakar was shocked. He had a fit. Shankar Patane, Parvati and Sudhakar took him inside the house and they were busy looking after him. P.W.12-Dattatraya Hanmant Magdum, who is an advocate, residing in the neighbourhood of Shankar Patane came there on hearing commotion. He went to Gadhinglaj police station and reported the matter to the police saying that there was a fight at his village and requested the police to bring injured Jotiba to the dispensary. Accordingly, the police came to the village. By that time, the accused accompanied by one Ishwara had gone to the police patil of the village, one Raosaheb Patil, P.W.1. police-men including police constable Rajkumar Bagane-P.W.8 took the jeep directly to the house of Raosaheb Patil because injured Jotiba was already removed to the dispensary at Gadhinglaj. Thereafter, the police patil accompanied by accused no.1 came to the scene of occurrence. Police patil inquired with Shankar Patane about the occurrence. He disclosed that accused no.1 had attacked the deceased with a sickle. Then they came to the police station at Gadhinjlaj. -5- Raosaheb Patil went to the dispensary to see Jotiba. Jotiba succumbed to the injury. Raosaheb Patil came to the police station and lodged his complaint which is treated as FIR and is at Exhibit-18. Raosaheb Patil gave the names of the accused as the assailants of Jotiba. On the basis of this complaint, investigation was started. The accused came to be arrested. Post-mortem was done on the corpse of Jotiba. The accused were also medically examined. After completion of the investigation, the accused came to be charged as aforesaid. 5. In support of its case, the prosecution examined as many as 13 witnesses, out of which P.W.2-Shankar Patane, P.W.3-Sudhakar Patane and P.W.5-Pravati Patane claim to be eye witnesses. P.W.1-Raosaheb Patil, who was working as police patil, has deposed about the lodging of the FIR by him. Post-mortem notes have been proved by P.W.4-Dr.Dattatraya Pavale. The prosecution also examined P.W.6-Vishnu Babu Powar and P.W.7-Shankar Kalu Mane to prove the motive. As regards details of investigation, the prosecution examined P.W.8-Rajkumar N. Bagane, P.W.10-Bhimrao G. Ghorpade and P.W.13-P.S.I. Shamsunder R. -6- Hegiste. The prosecution also examined P.W.12-Dattatraya H. Magdum, the advocate who had contacted Gadhinglaj Police Station first in point of time to secure medical aid. 6. The defence of the accused was one of denial. The accused admitted the scuffle. The accused admitted intervention of P.W.2-Shankar Patane. However, according to the accused when P.W.2-Shankar Patane was separating the scuffle, he had a sickle in his hand and accidentally the sickle fell on Jotiba’s neck and he was injured. The accused contended that they were falsely involved in the offence by the prosecution witnesses. 7. After perusing the evidence on record, the learned Sessions Judge came to a conclusion that the prosecution had established its case against the accused beyond reasonable doubt. He, therefore, convicted the accused under Section 302 read with Section 34 of the IPC and sentenced them to life imprisonment. The said judgment and order is challenged in this Appeal. 8. We have heard Mr.Nalavade, learned Counsel -7- appearing for the appellants (original accused nos.1 and 2) and Mr.Bagwe, learned Special Public Prosecutor appearing for the respondent-State, at considerable length. 9. Mr.Nalavade, learned Counsel appearing for the appellants (original accused nos.1 and 2), contended that the evidence of the prosecution witnesses is replete with major omissions and hence, no reliance can be placed on them. He submitted that P.W.12-Magdum, who is an advocate, claims that he had gone to the scene of offence after hearing the commotion. P.W.2-Shankar Patane and members of his family were present there. According to Magdum from there he rushed to Gadhinglaj police station and informed the police about the assault on Jotiba. He however did not give the names of the assailants of Jotiba. Mr.Nalavade contended that Magdum is not a layman. He is a responsible advocate. It is inconceivable that he would not find out who was the assailant of Jotiba. It is equally inconceivable that Shankar Patane and members of his family would not tell Magdum the names of the assailants of Jotiba. This according to Mr.Nalavade suggests that the prosecution has suppressed the genesis of the -8- case. The learned Counsel further contended that the conduct of P.W.2-Shankar Patane is also suspicious. He does not tell Advocate Magdum the names of the assailants. He does not lodge an FIR, though he had seen the incident and had talked about it to Raosaheb Patil. The learned Counsel contended that P.W.2 Shankar, P.W.3 Sudhakar and P.W.5-Parvati have avoided to state that after the assault, Jotiba entered their house. The fact that Jotiba entered the house cannot be disputed because blood stains were found inside the house. According to Mr.Nalavade these witnesses are avoiding to state that Jotiba entered the house because the incident did not take place in the manner in which the prosecution wants us to believe it took place. He submitted that in the circumstances the defence version gets probablised that it was Shankar Patane’s sickle which accidently landed on the neck of the deceased and the deceased ran inside the house of Shankar Patane crying "Mello Mello". The learned Counsel pointed out that P.W.3-Sudhakar has categorically stated that he saw his father after the entire incident was over. This, in the opinion of Mr.Nalavade, demolishes the entire prosecution case. The learned Counsel urged that -9- the evidence of discovery of sickle has rightly been rejected by the trial court. A vital link, which could have established the involvement of the accused, is, therefore, snapped. The learned Counsel further urged that there are injuries on the person of the accused which have not been explained by the prosecution and that is fatal to the prosecution case. He submitted that conduct of accused No.1 in going to the house of the police patil is significant and it suggests that he is innocent. Had he been guilty, he would not have walked up to the house of the police patil. The learned Counsel urged that there is a delay in lodging the FIR. Advocate Magdum or Shankar Patane could have lodged the FIR. So far as police patil is concerned, he has also not lodged the FIR immediately. He first went to the dispensary. Thereafter he went to the police station and lodged his complaint. Therefore, the possibility of concoction cannot be ruled out. Mr.Nalavade contended that all the witnesses have given different versions as regards the presence of advocate Magdum at the police station. Whereas from Magdum’s evidence, it appears that he was in the jeep in which police patil was present, the police patil does not say so. Even other -10- witnesses are not very clear as to when Magdum had arrived at the police station. He submitted that all this indicates that an effort had been made by Magdum, the police patil and Shankar Patane to concoct a false story to protect Shankar Patane. Mr.Nalavade submitted that so far as accused no.2 is concerned, there is no evidence to indicate his involvement. In the circumstances, Mr.Nalavade urged that this Court may set aside the order of conviction and sentence and acquit the accused. 10. In support of his submission that the prosecution has not explained injuries caused to the accused and this is fatal to its case, Mr.Nalavade relied on judgments of the Supreme Court in Lakshmi Singh & ors. vs. State of Bihar Lakshmi Singh & ors. vs. State of Bihar Lakshmi Singh & ors. vs. State of Bihar (1976) 4 SCC 394, D.V. Shanmugham & anr. vs. (1976) 4 SCC 394, D.V. Shanmugham & anr. vs. (1976) 4 SCC 394, D.V. Shanmugham & anr. vs. State of A.P. (1997) SCC 349 and State of M.P. State of A.P. (1997) SCC 349 and State of M.P. State of A.P. (1997) SCC 349 and State of M.P. vs. Mishrilal (dead) & ors. (2003) 9 SCC 426 vs. Mishrilal (dead) & ors. (2003) 9 SCC 426 vs. Mishrilal (dead) & ors. (2003) 9 SCC 426. As regards the duty of the prosecution to examine independent witnesses, the learned Counsel relied on the judgment in D.V. Shanmugham’s case D.V. Shanmugham’s case D.V. Shanmugham’s case (supra) (supra) (supra). Mr.Nalavade stated that the prosecution is required to prove its case beyond reasonable doubt. He submitted that the accused has to only probablise his defence. The degree and character -11- of proof, which he is expected to furnish, cannot be equated with the degree and character of proof which is expected from the prosecution. In support of this submission, he relied on a judgment of the Supreme Court in Harbhajan Singh Harbhajan Singh Harbhajan Singh vs. State of Punjab & anr. AIR 1966 SC 97 vs. State of Punjab & anr. AIR 1966 SC 97 vs. State of Punjab & anr. AIR 1966 SC 97. Mr.Nalavade contended that the prosecution must stand on its own feet. In support of this submission, Mr.Nalavade relied on a judgment of the Supreme Court in Sharad Birdhichand Sarda vs. Sharad Birdhichand Sarda vs. Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622 State of Maharashtra AIR 1984 SC 1622 State of Maharashtra AIR 1984 SC 1622. Mr.Nalavade contended that, in any event, if this Court comes to a conclusion that it was accused no.1, who dealt a blow on the deceased, he could at best be convicted under Section 304 Part II of the IPC and not for offence under Section 302 of the IPC. He submitted that intention to murder Jotiba can never be attributed to accused no.1. In support of this submission, the learned Counsel relied upon judgments of the Supreme Court in SASI SASI SASI alias Chalil Sasi vs. State of Kerala (2000) 10 alias Chalil Sasi vs. State of Kerala (2000) 10 alias Chalil Sasi vs. State of Kerala (2000) 10 SCC 55, Kunhahyippu vs. State of Kerala (2000) 10 SCC 55, Kunhahyippu vs. State of Kerala (2000) 10 SCC 55, Kunhahyippu vs. State of Kerala (2000) 10 SCC 307 SCC 307 SCC 307, Augustine Saldanha vs. State of Augustine Saldanha vs. State of Augustine Saldanha vs. State of Karnataka (2003) 10 SCC 472 Karnataka (2003) 10 SCC 472 Karnataka (2003) 10 SCC 472 and a Division Bench judgment of this Court in Kashinath Kisan Bhoye Kashinath Kisan Bhoye Kashinath Kisan Bhoye vs. The State of Maharashtra 1992 (1) Bom.C.R. vs. The State of Maharashtra 1992 (1) Bom.C.R. vs. The State of Maharashtra 1992 (1) Bom.C.R. -12- 95 95 95. According to Mr.Nalavade so far as accused no.2 is concerned there is no evidence to establish his involvement and hence he deserves to be acquitted. 11. Mr.Bagve, learned Special Public Prosecutor appearing for the respondent-State, on the other hand, submitted that no interference is called for with the impugned judgment and order. He submitted that the prosecution has proved its case to the hilt. The learned Counsel urged that while appreciating the evidence, regard must be had to the fact that the prosecution witnesses are rustic witnesses. In the nature of things, certain embellishments and variations are bound to be found in their evidence. On account of the same, their evidence cannot be discarded. In this connection he relied on a Division Bench judgment of this Court in State of Maharashtra vs. Teju State of Maharashtra vs. Teju State of Maharashtra vs. Teju alias Tejsingh alias Tajkumar 2004 ALL MR (Cri) alias Tejsingh alias Tajkumar 2004 ALL MR (Cri) alias Tejsingh alias Tajkumar 2004 ALL MR (Cri) 463. 463. 463. As regards the principles underlying appreciation of evidence in a criminal trial, the learned Counsel relied upon judgments of the Supreme Court in State of U.P. vs. M.K. Anthony State of U.P. vs. M.K. Anthony State of U.P. vs. M.K. Anthony AIR 1985 SC 48 AIR 1985 SC 48 AIR 1985 SC 48 and Inder Singh & anr. vs. State Inder Singh & anr. vs. State Inder Singh & anr. vs. State (Delhi Administration) AIR 1978 S.C. 1091 = 1978 (Delhi Administration) AIR 1978 S.C. 1091 = 1978 (Delhi Administration) AIR 1978 S.C. 1091 = 1978 -13- CRL. L.J. 766 CRL. L.J. 766 CRL. L.J. 766. Mr.Bagwe submitted that so far as the basic story of the prosecution is concerned, all the prosecution witnesses are consistent. He further submitted that there is no inordinate delay in lodging the FIR which can have an adverse impact on the prosecution case. He then submitted that even if the recovery of sickle is disbelieved, when there is consistent ocular evidence this circumstance does not discredit the prosecution case. He further submitted that the prosecution has also established motive. However, even if this Court holds that the motive is not established since there is consistent eye witness account absence of motive will recede in the background. As regards the statement made by the doctor that injury could be even accidental. Mr.Bagwe urged that ocular evidence unmistakably establishes that accused No.1 dealt the fatal blow on the deceased. Medical evidence cannot override it. For all these submissions, Mr.Bagwe relied on the judgment of the Supreme Court in Gurnek Singh Gurnek Singh Gurnek Singh & anr. vs. State of Punjab 1988 (Supp) SCC 807 & anr. vs. State of Punjab 1988 (Supp) SCC 807 & anr. vs. State of Punjab 1988 (Supp) SCC 807. 12. Mr.Bagve further contended that the defence of the accused is ridiculous. He submitted that it is improbable that any person -14- would go to separate the scuffle with a sickle in his hand. The theory propounded by the accused is inherently improbable and this false explanation itself would become a link in the chain of circumstances pointing to the guilt of the accused and this Court may draw an adverse inference against the accused. In support of this submission, the learned Counsel relied on a Division Bench judgment of this Court in Manohar Manohar Manohar Kushaba Gangurde vs. Police Sub-Inspector of the Kushaba Gangurde vs. Police Sub-Inspector of the Kushaba Gangurde vs. Police Sub-Inspector of the State of Maharashtra 2004 ALL MR (Cri) 2676 State of Maharashtra 2004 ALL MR (Cri) 2676 State of Maharashtra 2004 ALL MR (Cri) 2676. As regards the delay in filing the FIR, the learned Counsel relied the judgment of the Supreme Court in Birbal vs. State of M.P. 2000 (10) SCC 212 Birbal vs. State of M.P. 2000 (10) SCC 212 Birbal vs. State of M.P. 2000 (10) SCC 212 and a judgment of the Supreme Court in Ram Jag & Ram Jag & Ram Jag & ors. vs. The State of U.P. (1974) 4 SCC 201. ors. vs. The State of U.P. (1974) 4 SCC 201. ors. vs. The State of U.P. (1974) 4 SCC 201. Mr.Bagwe contended that there is sufficient evidence against accused no.2. As regards the application of Section 34 of IPC, he relied on Rishideo Pande vs. State of U.P. AIR 1955 SC Rishideo Pande vs. State of U.P. AIR 1955 SC Rishideo Pande vs. State of U.P. AIR 1955 SC 331 331 331. Mr.Bagwe thus, contended that the prosecution has been successful in bringing home the guilt to the accused and, therefore, this Court may not interfere with the order of conviction and sentence. -15- 13. Mr.Bagwe submitted that offence under Section 302 is clearly made out and this is not a case where the offence could be brought down under Section 304 Part-II of the IPC. He submitted that the assault was made with a deadly weapon. It was made on a vital part of the body of the deceased and, therefore, it is clear that the blow was intended to kill Jotiba. In this connection, he relied on the following judgments : (i) State of U.P. vs. Virendra 2004 ALL MR (Cri) 850 (S.C.). (ii) Shriram vs. State of Madhya Pradesh 2004 ALL MR (Cri) 859 (S.C.). (iii) Abdul Shahim s/o Abdul Bashir & anr vs. State of Maharashtra 2003 ALL MR (Cri) 524. (iv) Karimkha Ajijkha vs. State of Maharashtra 2003 ALL MR (Cri) 531. (v) Vilasgiri s/o Vitthalgiri Goswami vs. State of Maharashtra 2003 ALL MR (Cri) 246. -16- (vi) Shankarrao Bhimrao Sarnaik & anr. vs. State of Maharashtra 2003 ALL MR (Cri) 251. (vii) Basappa Bhimappa Dodamani vs. State 1961 Cri. L.J. 120 (Vol.62, C.N. 31) = AIR 1961 Mysore 21 (V 48 C5). 14. We have given our anxious consideration to the submissions advanced by both the learned Counsel. With their assistance we have gone through the evidence and record of the case. Before we start analysis of the evidence and deal with the rival submissions, we would like to refer to two judgments of the Supreme Court which set out the principles which the Court should bear in mind while appreciating evidence in a criminal trial. In Inder Singh’s case (supra) Inder Singh’s case (supra) Inder Singh’s case (supra), the Supreme Court was dealing with a murder appeal. The accused was convicted under Section 302 of the IPC. Certain persuasive factors which could militate against the culpability of the accused and the prosecution version of the precise nature -17- of the occurrence, were brought to the notice of the Supreme Court. While refusing leave, the Supreme Court observed as under:- " Credibility of testimony, oral circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is urged that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it it argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of -18- fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic. " 15. In M.K. Anthony’s case (supra) M.K. Anthony’s case (supra) M.K. Anthony’s case (supra), the Supreme Court was again dealing with a murder appeal. As regards appreciation of evidence of the witnesses, the Supreme Court observed as under:- " While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is informed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evolution of the evidence is shaken as to render it -19- unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. -20- Cross examination is an unequal duel between a rustic and refined lawyer. " We will approach this case with these principles in mind. 16. It is also important to note that almost all witnesses in this case are rustic witnesses. Even sophisticated witnesses, when they come to the Court to give evidence get confused. It is possible that a rustic witness may in the strange solemn and awe inspiring atmosphere of a court commit some mistakes. The standard, which is applied to the evidence of a sophisticated witness, cannot be applied to the evidence of a rustic witness. In this connection, we may usefully refer to