1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1263 OF 2002 1) Rajesh A. Behere ) Age : 32, Occ.: Service ) 2) Santosh A. Behere ) Age : 25, Occ.: Service ) 3) Rahul Raghunath Dandge ) Age : 24, Occ.: Service ) 4) Suresh Phulchand Sing @ Surya Chauhan) Age : 25, Occ.: Service ) 5) Daya Morsing Bhavre ) Age : 24, Occ.: Service ) 6) Suresh Ratan Salvi ) Age : 35, Occ.: Service ) All residents of Indira Nagar Zopadpatti ) Turbhe, Navi Mumbai ) (At present in custody of Thane Central ) Prison) )..APPELLANTS VERSUS State of Maharashtra ) (At the instance of Inspector of Police) ) Turbhe Police Station, Navi Mumbai )..RESPONDENTS 2 Mr. S.V. Marwadi a/w Ms. Sunita Sharma for the Appellants. Dr. F.R. Shaikh, Additional Public Prosecutor, for the State. CORAM : SWATANTER KUMAR, C.J. AND DR. D.Y. CHANDRACHUD, J. JUDGMENT RESERVED ON : 30TH MARCH 2009 JUDGMENT PRONOUNCED ON : 16TH APRIL 2009 JUDGMENT (PER SWATANTER KUMAR, C.J.) The case of the prosecution is that PW1 Basappa Uttapa Bandiwadar lodged a First Information Report (FIR) (Exh.22) with Turbhe Police Station and his statement spells out the prosecution case which the prosecution has attempted to prove to bring home the guilt of all the accused. It was stated by this witness that he was residing with his Aunt prior to the date of occurrence and in fact since 1996 and was working as a Cleaner of any vehicle. Tanaji Maruti Pawar, the deceased was known to him, who used to do some construction contract work. He also knew the accused. He knew their names prior to the incident. On 24th January 1999, the date of occurrence, which was a Sunday and he had a holiday. During the day he was at home, then went out at 3 about 6.00 p.m. He returned to Indira Nagar at 11.00 p.m. and took meals at Somaya hotel. While he was washing his hands after taking his meals at about 11.05 p.m., Suresh Chavan, the accused, came there and asked him as to where Tanaji Pawar (deceased) was.. At that time, Rahul Dandge beat him with a handle of spade on the back. Accused Suresh Chavan was holding gupti in his hand. Therefore, he ran away from there towards the Police near Ambedkar statue. He told the police that an untoward incident was going on in the said hotel. Accused Suresh Chavan and Rahul Dandge had come there with a handle of spade and gupti and Suresh Chavan beat him with handle of spade and he narrated the incident to the police. Thereafter he accompanied the police to the hotel site. The police made inquiry from the boys working in the hotel and asked them where those boys who made the scene have gone. They were told that they had gone towards the site of the nallah. The police were accompanied by Basappa towards the house of the accused persons and on their way they saw accused persons beating Tanaji Pawar (deceased) near his house. Tanaji Pawar was lying in an injured 4 condition and was having stab injuries on his chest which accused Suresh Chavan had caused by assaulting him with gupti and he had seen accused Suresh Chavan assaulting Tanaji. Accused Santosh Behere was holding handle of spade while assaulting Tanaji. Accused Rahul Dandge was holding a sword and accused No.6 Suresh Salvi was holding iron hook while assaulting Tanaji. All the accused ran away on seeing police. The police called boys working in the hotel and took Tanaji Pawar to hospital. According to Basappa, then he was taken to Police chowky where his complaint was recorded and he signed the complaint with these contents. The same was marked at Exhibit 22 and on the basis of his complaint a case under Sections 302, 143, 147, 149, and 324 of the Indian Penal Code (IPC) was registered against the accused. Basappa - PW1 identified the accused Nos.1 to 6 who were present in the Court. He also identified the gupti which accused Suresh Chavan was holding during the incident. However, he could not identify the handle of the spade with which he was assaulted. 5 2. To prove its case, the prosecution examined 14 witnesses. This primarily included, PW1 Basappa, PW2 Rashid Shaikh, PW8 Jagadish Shetty as eye-witnesses, PW3- Medical Officer, PW4 to PW7 and PW9, PW10, panch witnesses to arrest and recovery and the Police Station Officer PW12, the Investigating Officers PW11, PW13 and PW14 respectively. The statement of PW1 Basappa, the complainant, gives bird's eye view to the occurrance and commission of crime. This witness was cross-examined at some length wherein he stated that the house of Tanaji Pawar was at a walking distance of 10 minutes from and behind the Hotel “Somaya”. He also stated that while lodging a complaint at Exhibit-22, he had informed the police that accused Rahul Dandge beat him with the handle of spade on his back but could not say any reason as to why it was not so recorded in his complaint Exhibit-22. Certain other omissions from his statement were also pointed out to him and were brought on record. In relation to some omissions which were not recorded in Exhibit-22, he took the stand that he had informed the police about the said omissions but cannot say any reason as to why the police did not 6 record the same. This also related to the omission that he had seen the accused persons beating Tanaji Pawar near his house and that accused Rahul Dandge was holding sword and Accused No.6- Suresh Salvi was holding iron hook while assaulting Tanaji. 3. PW2 – Rashid Lalasaheb Shaikh is stated to be the other eye witness, who knew Tanaji Pawar. He claims that he met Tanaji Pawar at hotel Somaya when he was having his meal and after completing his meal, they were going towards their house. Tanaji Pawar went to his house. When he ( PW-2 Rashid ) again came near the hotel Somaya and was going towards his house he saw Accused Rajesh Bhavre coming down and at that time accused Rajesh Bhavare gave a blow with handle of spade to him. Rajesh Bhavre asked PW2 Rashid whether “he treated himself as Dada” and thereafter he saw other accused coming down and thereafter he ran away due to fear. PW2 Rashid stated that he received injuries due to assault at the hands of Rajesh Bhavre. After PW2 Rashid ran away on seeing the accused persons, one boy namely Basappa came running and was shouting “Tanya 7 Gaya, Tanya Gaya”. PW2 Rashid and PW1-Basappa rushed to the house of Tanaji Pawar and saw that Tanaja was lying in a injured condition in front of his house and was taken to the hospital where he subsequently died. In his cross-examination, PW 2 Rashid admitted that Nanda Behre, mother of the accused Behre had then lodged a complaint against them for entering into her house and damaging articles in the house and on lodging the said complaint, a criminal case was registered against them which was pending. This witness also claims that he had mentioned to the police that there was quarrel between Tanaji Pawar and the accused persons on the issue of some amount of money but this was not recorded in Exhibit-22. He admitted that Tanaji was his good friend. He has also made a statement that certain things which he had mentioned to the police were not recorded in the statement but he could not assign any specific reason for the same. 4. PW8, Jagdish Shetty whose statement was recorded at Exhibit 43, is another material witness to the case of the 8 prosecution. He stated that he was working as a Manager of the Hotel Somayya which was being run by his elder brother. Tanaji Pawar (deceased) and Basappa (PW1) used to come there to get vadapav or take their meals. According to this witness, Tanaji Pawar came to the hotel on 24th January, 1999 at about 10.30 p.m, took meals and went away towards his house and at that time he was present in the hotel. Thereafter Basappa (PW1) also came for having dinner. When he was washing his face, all the accused persons present in the trial Court came there. They were holding weapons like swords, chopper, gupti and wooden rod. According to PW8 Jagadish, accused Santosh was holding wooden rod, accused Suresh Chavan was holding gupti, accused Rajesh Bhavre was holding sword, Daya was holding sword, accused Rajesh Behere was holding chopper and accused Rahul Dandge was holding handle of spade. There were two to three people with them with weapons. Accused Suresh Chavan stated to have placed the gupti at the chest of Basappa (PW1). The accused persons entered the hotel and assaulted him and hotel boys. According to PW8, accused Daya Bharve had assaulted him with 9 sword due to which he received a bleeding injury on his hand. Thereafter the accused persons went towards the house of Tanaji. Basappa had ran away from there. After some time, he returned with the police to the hotel. Police asked PW8 Jagadish where the persons had gone and they were informed by him that they had gone to the house of Tanaji. After some time, Basappa and police brought Tanaji Pawar. At that time, Tanaji was having bleeding injuries. PW8 Jagadish states that he went to the police station and had shown his injuries to the police. He was sent to hospital and was examined by the Doctor. In the hospital he met Basappa who told him that Tanaji Pawar had been murdered and had died. He duly identified the articles 5, 10, 13 and 14 which were the weapons which the accused persons were holding when they came to the hotel. This witness also stated that the accused persons used to have meals in the hotel and some time did not pay the bills. His statement was recorded on that very day of incident where after he never met the police except few days prior to the date of hearing when he claimed that he met the police. 10 5. The investigation of the case was conducted by three different Investigating Officers. First of all, PW12 – Shivaji Laxman Sawant, the Police Officer concerned who took the complaint of Basappa and registered the FIR Exhibit 22, is examined and he stated that investigation of the crime was then handed over to Patil, API. He proved Exhibit 8 Inquest panchanama and stated that two police constables remained permanently attached to the hospital at Vashi for supervising the work of admission of patients whether injured accidentally or otherwise. This witness also stated that there was a note in the hospital record to the effect that Tanaji Patil was brought dead to the hospital. This investigation was thereafter followed by PW13 API Subhash Rajaram Patil who recorded the statement of persons like Jagdish Shetty, Sangita Pawar, Pundalik Pawar, Dhotre and R.P. Pawar. He then visited the spot of incident and prepared spot panchanama Exhibit 9 which was duly signed by PW13 as well as the panchas. Thereafter accused Rajesh Behere was arrested on 25th January 1999. This witness proceeded on sick leave and the investigation was handed over to Sr.PI. Kawale and 11 he joined his duty on 6th February 1999 and again took over the investigation of the case. He interrogated accused Rajesh Behere on 7th February 1999. On his disclosure statement (Exhibit 54), he got recovered the wooden handle Article 14 by panchanama Exhibit 55. On 12th February 1999 when PW13 Subhash Patil interrogated accused No.4 Suresh, he gave a statement which led to the recovery of blood stained clothes and the gupti (dagger) which were Articles 12 and 13. The relevant part of statement of PW13 Subhash Patil reads as under :- “............I accordingly recorded his statement in presence of panchas. Art. A on the record of this case now shown to me is the same memorandum statement bearing signatures of myself and panchas. Contents are correct. It is at Exh.57. Thereafter the accused No.4 Suresh led us to one cave below a stone, which is beyond Ganesh Temple, which is beyond Indira Nagar Zopadpatti, and then he took out some clothes with a dagger wrapped in it. I seized the said dagger and clothes and completed the said panchanama. Art. B on the record of this case now shown to me is the same panchanama bearing signatures of myself and panchas. It is at Exh.58. Art.13 is the same gupti and Art.11 Banian Pant-Art.12 are the same clothes which the accused No.4 Suresh discovered. 12 4. The articles seized by me were also sent to C.A.'s office. Office copy of the covering letter sent to C.A. Office is at Exh.59 and it bears my signature. P.M. Notes and the certificate of the injured were collected, after I sent a letter dt. 15.2.99 to the M.O. Municipal Hospital, Washi. The said injury certificates are filed in this case and the same are at Art.A to D. I then searched for the absconding accused person. However, they were not found, therefore, I sent chargesheet against the accused persons who were already arrested on 22.4.99. Exh.1 in S.C. No.440/99 is the same chargesheet bearing my signature. The other accused were subsequently; arrested by them. All accused persons before the court are the same who have arrested in this crime.” After completing the inquiry and getting the reports of the Forensic Laboratory, he prepared the charge sheet Exhibit 1 and submitted the same to the Court. The investigation during the intervening period was conducted by Maruti Kawale, Sr. Police Inspector at Turbhe Police Station, Navi Mumbai. On 26th January 1999 he recorded statements of four witnesses and handed over the investigation to Investigating Officer Shri Patil. Though all these witnesses were subjected to lengthy cross-examination, nothing material could come out except for the omissions stated to have 13 been made in recording of statements of the witnesses which were denied by all the three Investigating Officers. PW14 Maruti Kawale admitted that Police Constables Ganesh Pol and Jaywant Pagare were also the eye witnesses and they tried to apprehend the assailants at that time. 6. The only medical evidence in the present case is by way of statement of PW3 Dr.Keru K. More who stated that he was working as Medical Officer at Civil Hospital, Thane in the year 1999 and he had performed the autopsy on the dead body of one Tanaji Pawar from 10 a.m. to 11 a.m. and found the following injuries on the body of the deceased :- “EXTERNAL INJURIES: 1) Incised stab wound on chest right side, para sternally, 1 x 1 cm x cavity deep, vertical. 2) Incised stab wound on chest, left side, 1 x 1 cm x cavity deep. Suptra mandiatry region, oblique. 3) Incised stab injuries, right to xypisturnum, coastal margin, 1 x 1 cm x cavity deep, oblique. 14 4) Incised stab wound, opistere x region more towards left postal margin, 1 x 1 cm x cavity deep. 5) Incised stab wound, chest, left side infra manditory region, oblique, vertical, 1 x 1 cm x cavity deep. 6) Contused lacerated wound, skull right parietal region, 6 x 2 cm x scalp deep, irregular margin. 7) Contused lacerated wound, on forehead, middle region extending more to right side, 4 x 1 cm x bone deep. INTERNAL INJURIES: I) Head II) Thorax:- a) Walls, ribs, cartiledges: Stab injury noted as per the paper attached with diagramatric presentation. b) Pleura: Haemorrhagic fluid noted in both plural spaces, about 200 cc each. d) Right Lung: Incised wound, lower lobe, middle lobe, about 1 x 1 15 cm. e) Left Long: Contested, Incised wound noted, lower lobe, lateral lobe. Abdomen: a) Walls: Injury noted as per the paper attached and diagramatic presentation. Stomach and Contents:- Semi digested food material noted. Besides describing the above injuries on the body of the deceased, the Doctor has given his opinion as follows :- “In my opinion, the cause of death was due to shock due to multiple injuries due to haemothorax. The injury found on the said dead body were ante mortem, and the same were sufficient to cause death in the ordinary course of nature.” 7. Witness PW11 Sharad Nagre was still another Investigating Officer who took over the investigation on 29th January 1999 and interrogated the accused Santosh Behere. 16 Accused Santosh informed the officer that he had hidden one handle of spade in his house and who in presence of the panchas got the statement recorded at Exhibit 49 in furtherance to which and upon the accused Santosh leading them to the house, made the recovery of the handle of spade Article 10 by panchanama, Exhibit 50. This witness also states that he had followed the procedure for sealing of recovered articles. However, when examined in the Court, the paper seals were not intact. 8. The learned trial Court had framed common charges against all the accused at Exhibit 5 and charged them for offences punishable under Sections 143, 147, 148 and under Section 302, 506, 323, 324 read with Section 149 of the Indian Penal Code. Once the prosecution evidence was completed, the material prosecution evidence was put to the accused in their statement under Section 313 of the Criminal Procedure Code Exhibit 5A to 5F. All the accused denied the occurrence. In relation to a question whether they wanted to lead any evidence in defence or wanted to say anything, all the accused answered the question in 17 the negative. Thus, they opted not to lead any evidence in defence or to give any explanation in relation to the charges framed against them. As already noticed, the learned Trial Court vide its judgment dated 8th October 2002 recorded a finding that the prosecution had succeeded in proving beyond reasonable doubt, that all the accused formed an unlawful assembly with a common object and intent and caused death of the deceased Tanaji and for this purpose they had gone to Hotel Somaya and after finding out his place of residence, they had assaulted him with various weapons resulting in his death and as such the prosecution proved its case for offences punishable under Sections 143, 147, 148, 149, 302 read with 149 and recorded the finding in the affirmative. After hearing the accused on the quantum of sentence, all the accused Nos.1 to 6 except accused No.7 Rajesh Morsing Bhavre who was absconding, were convicted and awarded different punishments for different offences including life imprisonment and to pay a fine of Rs.1000/-. The sentence awarded to the accused under different sections were ordered to be run concurrently and in the event of non-payment of fine, they were ordered to undergo rigorous 18 imprisonment. All the six accused were acquitted of the charges under Sections 506(1), 323, 324 read with 149. 9. The legality and correctness of the finding of guilt and awarding of sentence has been challenged in the present Appeal, inter alia, on the ground that : (a) the Trial Court having recorded the finding that there was no motive for commission of the crime and particularly with reference to the facts and circumstances and evidence on record of the present case, the provisions of Section 149 have been wrongly applied and as such their conviction with the aid of Section 149 is untenable. (b) All the panchas PW4 to PW having resiled from their statements and having denied any recovery or disclosure statements made by 19 the accused in their presence, the prosecution cannot be said to have proved its case beyond all reasonable doubt. (c) The contradictions and improvements in the statements of the witnesses including those of eye witnesses clearly show that the accused have been falsely implicated and are entitled to the benefit of doubt. (d) Non-production of material witnesses without any plausible explanation and the order of acquittal in the judgment of the Trial Court in Case No.87 of 2004 (State v/s Rajesh Bhavare) clearly cast a doubt on the entire case of the prosecution and this would entitle the accused for the same relief of acquittal. 10. Now we will proceed to discuss the merit or otherwise 20 of these contentions. It will be appropriate to refer to the evidence of the prosecution cumulatively to view the case of the prosecution with some clarity. PW12, PW13 and PW14 are the Investigating Officers who have conducted the investigation of the case at different stages. According to them, PW1, PW2 and PW8 are the eye witnesses to the occurrence. As per the statement of Basappa PW1, the accused had come with weapons like gupti, swords, iron hook, wooden rod and other weapons. They had asked him and PW8 Jagdish as to where Tanaji Pawar was and were informed that he had gone after having his meal at about 11.05 p.m. towards his house. Thereafter accused went towards house of Tanaji and assaulted him with different weapons causing him injuries which proved fatal and Tanaji was declared dead when brought to the hospital. PW2 (Rashid Shaikh) and PW8 (Jagadish Shetty) also saw part of the occurrence. The veracity of statement of PW8 Jagadish was challenged by the learned Counsel appearing for the Appellants on the ground that he was not an eye witnesses to the incident and, therefore, his entire statement has to be treated as irrelevant. We are not impressed with this submission at all. May 21 be PW8 Jagdish was not an eye witness to the actual assault, but was a very material witness who met the accused and who had even been assaulted by accused and who immediately after the occurrence saw Tanaji bleeding. PW8 Jagadish had met the accused as well as the witnesses in his Hotel Somayya which is quite close to the place of occurrence and house of the deceased. The presence of PW8 Jagadish near the place of the occurrence is thus material and is quite natural in the normal course of business. We also are not agreeable to the contention of the learned Counsel appearing for the Appellants that the prosecution has attempted to plant witnesses only to falsely implicate the accused. In fact, in the statement of PW13, the Investigating Officer, it is clearly recorded that one Bharati Pawar, had seen deceased Tanaji being assaulted through the gap of the door but could not identify the assailants and she only heard the screams of Tanaji and rest of the persons had only heard the screams thus attaching some significance to the prosecution case that they have not attempted to bring other witnesses only to implicate the accused. As per statement of witnesses, accused No.1 Rajesh Behere was holding a chopper, 22 while accused No.2 Santosh Behere was carrying wooden handle of spade, accused No.6 Suresh Salvi was carrying iron hook and accused No.3 Rahul Dandge was holding sword. According to PW1 Basappa, accused Suresh Chavan had assaulted Tanaji Pawar with gupti and Santosh Behere and others had also assaulted him. Gupti and the wooden handle of spade were recovered as articles A and B at the behest of the concerned accused. 11. The medical evidence of PW3 Dr. More with reference to postmortem report Exhibit 31 clearly shows that injuries upon the person of the deceased were caused by a dagger or a weapon like gupti and the injuries caused on the chest which punctured the lungs of the deceased proved fatal. Other injuries as per the evidence of expert, PW3 Dr. More, namely, injuries 1 and 2 are the injuries which caused damage to the vital parts while injuries Nos.6 to 8 were external and could be caused with wooden handle. However, PW3 Doctor More clearly stated in his evidence that there was not a single injury on the body of the deceased which 23 could