1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.664 OF 1994 1. Vijay @ Jafraya Bhimsha @ Balu Pawar @ Bhosale @ Kale 2. Laxman @ Saikalya Shankar Kale 3. Prabhu Laxman Kale Appellants (Org.Accused) Vs. The State of Maharashtra Respondent Mr.S.C.Halli for appellants. Mr.A.M.Shringarpure, APP for State. CORAM: S.S.PARKAR & ANOOP V.MOHTA,JJ. January 11 & 12, 2005. ORAL JUDGMENT (PER S.S.PARKAR,J.) 1. This appeal is filed by the convicted accused challenging the judgment and order dated 15/12/1994 delivered by the 3rd Addl. Sessions Judge, Solapur in Sessions Case No.150 of 1993 convicting the appellants for offence under Section 302 read with Section 149 of IPC and sentencing each of them to life imprisonment and to pay a fine of Rs.10,000/- in default RI for five years. The appellants were also convicted for offences under Sections 147, 148, 326, 504 and 506 of IPC but no separate sentences were awarded on those counts. 2 2. The prosecution case briefly narrated is as follows: . The incident of assault had taken place on 29th January 1992 between 10 and 11 p.m. in the land of Shivaji Waghmare PW 4 bearing Gat No.138 situated on the outskirts of village Khanapur in Taluka Akkalkot, Dist.Solapur. Both the injured as well as the accused belong to Pardhi community. According to the prosecution case Kallappa, the elder brother of the complainant Basu had married Kasturbai PW 20. Kallappa was killed by accused no.1 and thereafter his wife Kasturbai PW 20 was kidnapped by him. One Bigulya the absconding accused had wanted to marry Chhaya but the complainant and his brother had refused to get her married to Bigulya and instead got her married to Bhimsha. The accused had, therefore, borne grudge against the complainant’s side and had gone to the aforesaid field on the night of the incident armed with weapons like axes, sickles and sticks. The accused were six in number. On the night of the incident the complainant and the victims had halted in the aforesaid field. When the complainant and victims after taking their dinner had 3 gone to sleep in the field which was an open place, the accused went there and started assaulting the victims and in the process killed five persons. Out of the five victims, three victims Vimalabai, Shantabai, Gangaram and an eight days’ old child had died on the spot while Pakshibai was removed to the hospital in a serious condition where she succumbed to the injuries on the following day. Thus the persons who were murdered on that night were three ladies, one eight days’ old child and Gangaram, husband of deceased Vimalabai. Eight days’ old child was son of Vimalabai and Gangaram. Besides the aforesaid five casualties which took place in the said incident some other witnesses were injured. At the time of incident when the assault was taking place complainant Basu escaped from the field and went to the adjoining village Khanapur seeking help of the villagers to save his family members from the attack of the assailants but the villagers including Shivaji Waghmare, the owner of the land in question did not dare to accompany the complainant to rescue his relations from assault by the accused persons. He, therefore, went to the police outpost Karajgi to lodge his complaint. The Head Constable there informed the Akkalkot Police Station on telephone 4 about the incident. 3. On receiving telephone message PSI Gaikwad from Akkalkot Police Station went to the place of incident. As the complainant was not there, he posted constables at the place of incident and himself went to the outpost and recorded the complaint of PW 16 Basu. He forwarded the said complaint to Akkalkot Police Station where the crime was registered for offences of rioting, assault and murder. He then proceeded to the place of offence and drew the spot panchanama as well as inquest panchanamas of the dead bodies. Pakshibai, who was in serious condition, was removed to Karajgi from where she was shifted to civil hospital, Solapur where she succumbed to her injuries. The autopsies were performed on the dead bodies and thereafter the bodies were handed over to the complainant for obsequial rites. The statements of the injured eye witnesses were recorded on the following morning i.e. 30th January 1992. The blood stained clothes of the deceased as well as the injured were seized under panchanama and were sent to the office of CA. The search was made for the accused but they were not 5 available for their arrest even in the village where they were residing. The accused no.1 was resident of Sidhapur, taluka Mangawedha and accused nos.2 and 3 were residents of village Borale, taluka Mangalwedha. Accused no.1 was arrested on 6/2/1993 in taluka Jat of Sangli District and thereafter his custody was transferred to the concerned police station for this offence. The charge-sheet was filed against accused no.1 in the month of May 1993. Accused nos.2 and 3 were arrested on 27th February 1994 in village Donaj and thereafter supplementary charge-sheet was filed against them. The other three accused by name Bigulya, Disha and Paplya could not be traced and, therefore, they were shown absconding. After their arrest blood of accused nos.1, 2 and 3 was also collected and sent for CA examination. After completion of the investigation against these three appellants charge-sheet was filed and the case was committed to the Sessions Court, Solapur. 4. Before the Sessions Court charges were framed against all the three appellants for offences under Sections 147, 148 and 302, 326, 504 and 506 read with Section 149 of IPC to which the 6 appellants-accused pleaded not guilty. On behalf of the prosecution 25 witnesses have been examined. The said witnesses include five eye witnesses to the incident some of whom were injured at the time of the incident. They are PW Nos.16 to 20. PW 20 Kasturbai, wife of accused no.1, had however turned hostile. The other witnesses are the villagers including PW 4 Shivaji Waghmare who was the owner of the land in which the incident had taken place. The villagers who were examined are PWs 4 to 9 some of whom had turned hostile. The prosecution had also produced the map of scene of offence prepared by the Circle Officer PW 1 Mohamad Ali Shaikh at Exhibit 24 and examined the police witnesses including the Investigating Officers and had produced CA reports, and the panchanamas. The defence of the accused was of denial. 5. After considering the entire evidence on record the trial Court by the impugned judgment and order dated 15/12/1994 had convicted and sentenced the appellants as stated above. The said order of conviction and sentence is under challenge in this appeal filed by the appellants. 7 6. Mr.Halli appearing for the appellants firstly contended that the prosecution has not proved the motive. He also contended that due to the previous enmity between the two groups the accused were falsely implicated. He then argued that specific role has not been attributed to the accused and except the accused having been named in the complaint and the statements of the witnesses, no other circumstance is brought on record which connects the accused with the crime in question. He also argued that the prosecution has not proved that the accused were absconding as the details of the steps taken by the police to trace the accused have not been brought on record. He then contended that the prosecution has also not proved that there were street lights nor the torch has been seized by the police to show that accused were seen by the witnesses in the street light or torch light. According to him when the incident had taken place in the night the assailants could not be identified by the witnesses and, therefore, the accused were implicated falsely due to the previous enmity. 8 7. With the assistance of the defence Advocate we have gone through the entire evidence on record of all the prosecution witnesses including those who had turned hostile. After going through the evidence on record we find that there are injured eye witnesses who could identify the accused who were named in the complaint as well as in the statements of the witnesses. Since the accused were known to the witnesses it was not difficult for them to identify them even during night as the incident had taken place in the open field and the assailants could be identified in an open place even in the night assuming that there was no light or even moon light on that night. The complainant has mentioned in the FIR itself the names of the assailants and the weapons carried by them which were seized from the place of offence. The evidence of the eye witnesses is supported by the spot panchanama and the medical evidence. The complainant had escaped from the place of incident when the assault commenced and went to the village for seeking help from the villagers and as no villager came to his help, he went to the police outpost early morning even before sunrise where his complaint was lodged in which he has named the appellants and absconding accused and the weapons 9 wielded by them. The accused including the appellants were absconding for a long time. As stated earlier, accused no.1 was arrested on 6th February 1993 i.e. about more than one year after the incident in question and accused nos.2 and 3 were arrested on 27th February 1994 i.e. more than two years after the date of incident. During that period they were not found in the villages of which they were normal residents. While accused no.1 was arrested in Sangli district, accused nos.2 and 3 were also arrested in a different village by name Donaj. Three other accused were absconding until the trial took place against these appellants. 8. In this case there are five eye witnesses to the incident of assault being PWs 16 to 20 out of whom one witness PW 20 Kasturbai, wife of accused no.1, had turned hostile. Out of the four remaining eye witnesses at least two are injured eye witnesses. The complaint was lodged by PW 16 Basu Bhosale whose sisters Pakshibai and Vimalabai were murdered in the incident. The other victims are complainant’s mother Shantabai, his sister Vimalabai’s husband Gangaram and her eight days’ old son. Even Chhaya, who is the 10 injured eye witness and who was not given in marriage to one of the absconding accused Bigulya, is the sister of the complainant. The complainant has deposed that on the night of the incident they had gone to sleep after their dinner in the open field. At about 11 p.m. train had arrived and made a halt near the said field. At that time accused persons came to their field with axes, sickles, jambiya and sticks in their hands. The accused started assaulting the complainant and his wife. He identified the accused nos.1, 2 and 3 and fled along with his wife towards village Khanapur for seeking help of the villagers to rescue the other members of the family who were being assaulted. Thereafter they went to village Ankalgi but there also nobody came forward to help them. He then came back to the place of incident to find that Vimalabai, her newly born son, her husband Gangaram and Shantabai were murdered and Pakshibai was seriously injured. Other relations, Ganappa, Bhagabai and Chhayabai were also seriously injured. He, therefore, went to the police outpost Karajgi and lodged his complaint (Exh.58). Thereafter the injured persons were taken to the Primary Health Centre, Karajgi for medical treatment. He has identified the muddemal article nos.1 to 6 11 which consist of two axes, two sickles and two sticks as the weapons which were wielded by the appellants and the three absconding accused. Pakshibai later on died in Civil Hospital, Solapur. He has also deposed about the previous enmity with the accused persons as his sister Chhaya was not given in marriage to Bigulya, one of the absconding accused and, therefore, the accused had borne grudge against him. He has also deposed about the murder of his elder brother Kallappa at the hands of accused no.1 and absconding accused Bigulya and others who had kidnapped his wife Kasturbai/Kerubai PW 20. He has stated that for passing the night they had halted in the field of Shivaji Vitthal Waghmare on the previous day. 9. His evidence has been criticized on the ground that though he has deposed that he was assaulted initially by accused no.1, he had not been examined by the doctor and no injury certificate is produced. The witness himself has not stated that he had received any injuries on his person. He has deposed that initially he was assaulted and, therefore, he along with his wife went into the ditch 12 to avoid the assault and thereafter ran away from that place and went to the village when others were being assaulted. He is not the sole eye witness to the incident but his evidence has been corroborated by the FIR (Exh.58) lodged by him immediately after the incident where he has named all the six accused persons for having come to the said field on the previous night with the aforesaid weapons and assaulted the aforesaid relations. His evidence is corroborated by other injured eye witnesses to the incident so also by the owner of the field which was situated in Gat No.138 on the outskirts of the said village and by other villagers for having gone to them on the same night seeking help to rescue the members of his family from the assault made by the accused persons. There is absolutely no contradiction brought on record in his evidence vis-a-vis the FIR lodged by him. 10. It is argued that the FIR mentions the date of 30th January 1992 at about 10-10 i.e. morning of 30th January 1992 and, therefore, there is likelihood of deliberation made before giving names of the accused. According to the learned defence Advocate 13 complainant must not have identified the accused at the time of assault, as it was night time and the names of the accused must have been given because of the previous enmity. Secondly it is argued that he being a relation of the victims his evidence cannot be relied on. It is also argued that no specific role has been assigned to the accused as to who assaulted whom and with what weapon. Reference was made to the judgment of the Supreme Court in the case of Ladha Shamji Dhanani v. State of Gujarat reported in AIR 1992 SC 956 AIR 1992 SC 956 AIR 1992 SC 956 in which case the Supreme Court had acquitted those accused to whom no specific role was attributed in the FIR. 11. In our view, the ratio of the above decision would not be applicable in the present case because in this case five murders had taken place in the night time and the witnesses have named all the appellants and other accused for having assaulted with weapons like axes, sickles and sticks which were seized from the place of occurrence under spot panchanama (Exh.26). In the case before the Supreme Court when specific role was assigned to some of the accused persons and not against three accused 14 persons, the Supreme Court gave benefit to those persons to whom specific role was not attributed in the FIR itself. That is not the case here. In this case specific role is not assigned to any of the accused except that some of the injured witnesses have deposed as to which accused had assaulted them. When five persons were murdered and three or four persons were injured, surely it must be an act of five to six persons who had been named in the FIR itself, all of whom were absconding from the date of the incident till accused no.1 could be arrested after a period of one year and accused nos.2 and 3 after a period of two years from the date of the incident. 12. Another eye witness to the incident is PW 17 Chhaya Bhosale, the sister of the complainant. She is an injured eye witness. The motive alleged against the accused is that they were annoyed because Chhaya was not given in marriage to Bigulya, the absconding accused and, therefore, accused bore grudge against them. Chhaya was married to Bhimsha who has not been examined in this case. She has also named all the six accused including the appellants 15 who had gone to the said field on the night of the incident with weapons and made assault on the deceased and the witnesses. She has deposed that that night they were staying for the night in the field of Waghmare. She was accompanied by her brother i.e. the complainant, father, mother, sister, grandfather and brother-in-law. According to her on the night of the incident when they had gone to sleep after night meals, the accused came there and were enquiring about Basha i.e. complainant Basu and herself. The accused were holding axes, sickles, jambiya and sticks. Accused no.1 and absconding accused had beaten her with axe as a result of which she sustained incised wounds on her forehead, above eyebrow and on her back and leg. They had also beaten her mother who sustained injuries on the head, back and leg. She has also deposed about the assault on her sister Vimalabai and her husband Gangaram and on their newly born son who died on the spot. Then she has deposed about the assault on her sister Pakshibai and Bhaga and Ganga. She has identified the accused as well as the weapons in the Court. The omission pointed out in her evidence is that she has made improvement about the accused no.1 having assaulted her and about having seen the assailants in 16 the torch light. It may be mentioned here that reference is made to the torch by the complainant PW 16 in the complaint also. It is different thing that said torch was not attached. We do not think that it was necessary for the police to have attached the torch referred to in the complaint itself. There was no necessity to attach the torch for the purpose of the case and deprive the surviving members of the family from the usefulness of the same. The witnesses belong to Pardhi community and must be living hand-to-mouth. 13. The other eye witness is Bhagabai who is aunt of complainant and Chhaya. She had seen four assailants on that night in the light of the torch. She had received injury on her forehead and on her back. She has also spoken about the assault on the other members of the family. In her cross-examination she has stated that torch was held by assailants. It is natural when the assailants had come all the way from a distant place in the night they would carry torch with them. 17 14. The next witness is PW 19 Mahadev, who is the brother of the complainant. He has deposed about the incident in question and had identified the accused and the weapons and has stated about the assault by the accused on the witnesses. He has also deposed that accused no.1 was insisting that Chhaya should be married to Bigulya, absconding accused but they had rejected the said proposal and Chhaya was instead married to Bhimsha. There are certain omissions pointed out in his evidence for not having specifically stated about the assault by particular accused on certain injured persons or the victims. 15. The next witness is Kasturbai, PW 20 who had turned hostile being the wife of accused no.1. According to her police statement and the statement recorded by the Special Judicial Magistrate she was halting with the complainant in the said field on the night of the incident. After the accused had severely assaulted the victims and the witnesses she was taken by accused no.1 along with him. Her statement was recorded very late i.e. in June 1992 but she having turned hostile her evidence is of no assistance to the prosecution. 18 16. The evidence of the complainant is thus corroborated not only by the complaint but also by injured and other eye witnesses. The fact that the witnesses are related to the victims cannot affect their credibility. No doubt certain omissions have been pointed out but Court cannot ignore that when the incident took place in the night in an open field at about 11 p.m. the witnesses had gone to sleep and six persons armed with deadly weapons started attacking them causing death of five persons and injuring others seriously. In those circumstances the witnesses are not expected to give the details as to which accused was armed with what weapon and who assaulted whom. The reliance by learned defence Advocate on the recent judgment of the Supreme Court in the case of Gangadhar Behera v. State of Orissa reported in (2002) 8 SCC 381 (2002) 8 SCC 381 (2002) 8 SCC 381 is of no assistance to the accused. In that case after considering the earlier judgments of the Supreme Court it is held that the fact that the witnesses were related would not affect their credibility and the Court has to find out which portion of their evidence is reliable and which portion is not reliable as the doctrine, falsus in uno, falsus in omnibus, is not applicable 19 in our country. 17. The evidence of eye witnesses is to a certain extent corroborated by the villagers including the owner of the land in question. PW 4 Shivaji Waghmare, owner of the land bearing Gat No.138, though turned hostile, some portion of his evidence could be usefully considered which supports the prosecution case especially the version of the complainant and also other eye witnesses. He has deposed that he possessed the agricultural land in village Khanapur bearing Gat No.138 which belongs to him. He has produced at Exhibit 29 the 7/12 extract in respect of the said land to prove his ownership. He has deposed that Pardhi community was residing in his field. When he was coming from another field he saw Pardhis along with family members had halted in his gat no.138. When questioned they told him that they wanted to make halt in the said field only for that night and they would leave the field next morning. The said land adjoins Gavthan and he was himself residing in the adjoining village of Khanapur. When he was sleeping after night meals on the night of the incident Pardhi persons who had 20 halted in his field had gone to the vasti saying that some other Pardhi persons were beating them and sought the help of the villagers. But the witness showed his inability to help them and told them to go to the Police Patil. Next morning he had gone to the said field to find dead bodies lying in his field. He has deposed that complainant Basu had halted in his field on that night and Basu accompanied by Rama and Bhimsha told him that some persons from Pardhi community had beaten them. He however denied that names of the assailants were told to him and, therefore, he was declared hostile. In any event his evidence supports the prosecution case and the version of the complainant that on the night of the incident complainant and other persons of Pardhi community were residing in his field and when he had gone to sleep at about 10-30 p.m. or so Basu and others had gone to his house and complained that other members of Pardhi community were assaulting his family members and asked for help but he had asked him to go to Police Patil. 18. Another witness is PW 6 Malkavate who is also a villager from Khanapur. He has deposed that