AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.739 OF 2001 1. Arun Ramchandra Mane ) 2. Deepak Ramchandra Mane, both residing at Bander Pada, Mohane Road, Dhakate Shahad, Kalyan, Dist. Thane. ) ) ) ) ... Appellants Versus 1. The State of Maharashtra (At the instance of Mahatma Phule Chowk Police Station, Kalyan). ) ) ) ) 2. Smt. Vidya Hanumanta Jadhav, residing at Post Ambavade (Budruk) Taluka, District Satara. ) ) ) ) 3. Mohan Devgude, at Ambode Budruk, Tal. & Dist. Satara. ) ) ... Respondents Mr. A.S. Khandeparkar, for the appellants. Ms. P.H. Kantharia, A.P.P. for respondent-State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. AJN 2 DATED : 7TH JULY, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellants are original accused 1 and 2 respectively. They were tried by the Court of Additional Sessions Judge, Kalyan in Sessions Case No.108 of 1999 for offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, “the IPC”) for killing one Hanumanta Keshav Jadhav (for convenience, “the deceased”), and for offence punishable under Section 307 read with Section 34 of the IPC for causing deadly injuries to one Mohan Sitaram Devgude. They were also tried for offences punishable under Sections 364 and 201 read with Section 34 of the IPC. The case of accused 3 Datta Pandharinath Avhad @ Dattatraya Ganpati Kamble was separated as he was absconding. For the sake of convenience, parties are referred to as per their status in the trial. 2. By the impugned judgment and order, learned AJN 3 Sessions Judge convicted accused 1 and 2 for offences punishable under Section 302 read with Section 34 of the IPC and sentenced them to suffer imprisonment for life and to pay fine of Rs.10,000/- each, in default of payment of fine, to suffer rigorous imprisonment for two years. Accused 1 and 2 are also convicted for offences punishable under Section 326 read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/- each, in default of payment of fine, to suffer further rigorous imprisonment for two years. Accused 1 and 2 are also convicted for offences punishable under Section 364 read with Section 34 of the IPC for abducting the deceased to commit his murder and are sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/- each, in default of payment of fine, to suffer further rigorous imprisonment for one year. They are also convicted for offences punishable under Section 201 read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of AJN 4 Rs.5,000/- each, in default of payment of fine, to suffer further rigorous imprisonment for six months. The substantive sentences are ordered to run concurrently. 3. Learned Sessions Judge directed that upon realization of fine amount from each of the accused for the offences committed against the deceased, the said amount shall be paid over to the widow and children of the deceased. The said amount comes to Rs.20,000/- from each accused. Learned judge has also directed that upon realization of the fine amount for the offences committed against PW-6 Mohan Devgude of causing grievous hurt to him, the said amount be paid over to PW-6 Mohan Devgude by way of compensation. The said amount comes to Rs.10,000/- from each accused. Respondent 2 is the widow of the deceased. She has been served. She is present in the court. Respondent 3 has been served. Despite service, he did not engage a lawyer. We are now informed that he is dead. AJN 5 4. According to the prosecution, the incident in question occurred between the night of 11/8/1998 and 12/8/1998. The prosecution case rests on the evidence of injured witness PW-6 Mohan Devgude to whose evidence, we shall soon come. The prosecution case in short, is that the deceased and PW-6 Mohan were abducted and brought in a rickshaw near Shahad Bridge between the night of 11/8/1998 and 12/8/1998 by the accused. The accused committed murder of Hanumanta and threw his dead body over a rock in the river Ulhas for screening the evidence of murder. The accused assaulted PW-6 Mohan with an iron pipe on vital part of his body with intention to cause his death or with knowledge that the assault is likely to cause his death and dumped him under the Shahad Bridge. 5. In support of its case, the prosecution examined as many as 11 witnesses. The important witnesses of the prosecution are PW-4 Deepak Jadhav - brother of the deceased, PW-5 Kisabai Jadhav – mother of the deceased, AJN 6 PW-6 Mohan Devgude – the injured eye-witness and PW-7 Sharad – neighbour of the deceased. PW-9 Dr. Smt. Khedkar and PW-11 Dr. Pandit have given particulars of the injuries suffered by PW-6 Mohan. PW-2 Dr. Ashok Bhide had done the postmortem on the deceased. 6. The defence of the accused was one of denial. According to them, they have been falsely involved in the case on account of previous enmity. After perusing the evidence on record, learned Sessions Judge convicted the accused as aforesaid and, hence, this appeal. 7. We have heard, at some length, Mr. Khandeparkar, learned counsel appearing for the appellants-accused. We have also perused the record of the case. Counsel submitted that the prosecution case rests on the evidence of PW-6 Mohan – the injured eye-witness. However, PW-6 Mohan's evidence is not trustworthy. It is replete with omissions. It needs corroboration, which is not available from other evidence. There is no evidence on record to AJN 7 establish the involvement of the accused except the evidence of PW-6 Mohan and since the said evidence does not inspire confidence, the impugned judgment should be set aside. Counsel submitted that the alleged weapon of assault i.e. the pipe was found at the scene of offence. However, chemical analyzer's report (Ex-28) states that there were no blood stains on it. The prosecution has failed to establish the motive. In fact, the evidence of PW-6 Mohan indicates that he was on good terms with the accused. It is on their invitation that he accompanied them and he stood outside the bar when they were having liquor. PW-6 Mohan has stated that he did not mediate in the family dispute between the accused and the prosecution witnesses about mutation entry. Therefore, there is no question of there being any enmity between PW-6 Mohan and the accused or between the deceased and the accused. Counsel submitted that there are contradictions and discrepancies in the evidence of other witnesses also. Counsel submitted that in the circumstances, the impugned judgment be set aside and AJN 8 the accused be directed to be released forthwith. 8. Ms. Kantharia, learned A.P.P. on the other hand, submitted that PW-6 Mohan is an injured witness. He had suffered serious injuries. There is no reason for him to falsely involve any innocent persons as assailants. His evidence inspires confidence. Learned A.P.P. submitted that learned Sessions judge has rightly placed reliance on PW-6 Mohan. She submitted that the prosecution has also established motive and in the circumstances, the impugned judgment and order be confirmed. 9. PW-2 Dr. Bhide, who did the postmortem on the deceased has proved the postmortem notes, which are at Ex-15. The cause of death is given as “neuro hemorrhagic shock due to intra cerebral hemorrhage with injuries to vital organs”. Dr. Bhide has stated that the injuries received by the deceased are possible by a hard and blunt object. He has stated that an iron pipe is a hard and blunt object. In the cross-examination, he has AJN 9 reiterated the same version. Looking to the nature of injuries suffered by the deceased and the evidence of Dr. Bhide, we find no hesitation in holding that the death of the deceased was homicidal. 10. PW-6 Mohan was admitted in Sion Hospital on 12/8/1998 and was discharged on 24/9/1998. PW-11 Dr. Pandit, the Medical Officer of the Trauma Unit of the Sion Hospital had examined him on 12/8/1998 and issued certificate (Ex-27). The certificate indicates that Mohan had suffered serious injuries. He had suffered multiple injures on his head with two clinical fractures. PW-9 Dr. Smt. Khedkar has stated that PW-6 Mohan had to undergo Facial, Nerve Decompression Surgery. Evidence of PW-11 Dr. Pandit and PW-9 Dr. Smt. Khedkar therefore clearly establishes that PW-6 Mohan had suffered serious injuries. Since the case of the prosecution rests on the evidence of PW-6 Mohan, we shall now go to that evidence. 11. In his evidence, PW-6 Mohan has stated that he was AJN 10 Sarpanch of his village from 1995 to January, 2000. According to him, he went to Kalyan to invite people for the Vastushanti of his house at Ambodi. At Kalyan Station, he met accused 1. The rickshaw of accused 1 was not available, hence he went to the house of Sharad Jadhav in the rickshaw of one Nathu. Sharad Jadhav was not at home, hence he went to the house of the deceased. The mother of the deceased was present in the house. He kept his luggage there and went with Nathu to the Station. At the Station, he waited for the deceased and Sharad but they did not come. According to him, accused 1 and absconding accused Datta arrived there. They questioned him as to whether the deceased and Sharad had come or not. He answered that they had not come. According to him, accused 1 and Datta told him that they should have tea together. A rickshaw was standing there. They boarded the rickshaw. They took the rickshaw to the other side, hence, he questioned them why they were taking the rickshaw in that direction. They stated that they should go to a bar and have liquor. According to AJN 11 PW-6 Mohan, he told them that he did not take liquor during Shravan. They told him that they will have liquor. They went to the bar and had liquor. They came out of the bar and saw accused 2 waiting there. Accused 2 stated that they will arrange dinner for PW-6 Mohan at their house. PW-6 Mohan told them that he had not met the deceased. They told him that they would meet the deceased at his house. They went to the house of the deceased in a rickshaw. The deceased was taking meals. Accused 2 told the deceased that he had arranged dinner at his home and invited him. The mother of the deceased said that the deceased would take meals and then go with them but accused 2 forced the deceased to accompany them. Then all of them went out of the house. Accused 1 and 2, Datta and PW-6 Mohan boarded the rickshaw, which was driven by accused 2. According to PW-6 Mohan, he asked accused 2 as to why he was going towards the station to which he replied that accused 1 wants to consume liquor. According to him, the deceased and accused 1 went inside the bar and others waited AJN 12 outside the bar for considerable time. Accused 2 stated that he had some work, hence, he will go to his house and PW-6 Mohan and Datta should wait for the deceased and accused 1. Accordingly, PW-6 Mohan and Datta waited there. Accused 2 went away with his rickshaw. Accused 1 and the deceased came out of the bar. PW-6 Mohan has further stated that as he was very hungry, he told them that they should go home. However, accused 1 said that they should have some snacks or light food. They went to a nearby shop and had egg-bhurji. According to PW-6 Mohan, Datta brought a rickshaw. They boarded the rickshaw. Datta was driving it. While they were proceeding to the house of accused 2, accused 1 told PW-6 Mohan that they were doing Dadagiri in the village and that they were taking the side of their uncle. On this, according to PW-6 Mohan, he stated that the dispute was going on in the court and the panchas cannot do anything about it. Datta drove the rickshaw towards the bridge. At the bridge accused 2 was standing with his rickshaw. According to PW-6 Mohan, Datta stopped his rickshaw. AJN 13 Accused 1 told the deceased to go and sit in the rickshaw of accused 2. PW-6 Mohan questioned as to why he should do so. Accused 1 stated that PW-6 Mohan will not understand (the reason). At that stage, accused 1 and 2 pulled the deceased from the rickshaw. Accused 2 was carrying a pipe with him. According to PW-6 Mohan, he inflicted a blow of the pipe on the person of the deceased. They pushed the deceased in the rickshaw brought by accused 2. PW-6 Mohan got down from the rickshaw and asked them what was going on. According to him, accused 1 and 2 then inflicted 2 to 4 blows on his head. According to him, the weapon used by them was like a pipe. He then fell unconscious. When he regained consciousness, he was in the Sion Hospital. He was in the hospital for 40 days. According to him, he has become disabled and is not able to walk. On his discharge from the hospital, he again came to Kalyan for giving his statement after lapse of 5-6 days. After his discharge, he learnt about the death of Hanumanta (the deceased). AJN 14 12. In the cross-examination, he has given consistent account about the sequence of events upto their arrival at Shahad bridge. He has added that the deceased was heavily drunk. As regards the incident in question, very significant omissions have been brought on record. According to him, he had stated before the police that accused 2 had inflicted a blow by an object like pipe on the deceased. However, he cannot say why the police have not recorded this fact in his statement. He has further stated that he had stated before the police that accused 2 was pulling the deceased by holding his hand but he did not know why the police did not so record in his statement. He has further stated that he had stated before the police that accused 2 had given blow over his head but he cannot say why police had not recorded the name of accused 2 in his statement. 13. It is therefore, clear that in the police statement, PW-6 has not stated that accused 2 dealt a blow with pipe on the deceased. It is not his case in the examination-in- AJN 15 chief that accused 1 inflicted any blow on the deceased. With this state of evidence, neither accused 1 nor accused 2 can be held responsible for the injuries caused to the deceased. PW-6 Mohan has, however, said that accused 1 and 2 inflicted blows on his head. However, in his statement before the police, he has not stated that accused 2 inflicted any blow with pipe on his head. Therefore, so far as his case that accused 2 inflicted blow on his head is concerned, it appears to be an exaggeration. His evidence can at the most be accepted only to the extent that accused 1 inflicted 2 to 4 blows on his head because it is consistent with his statement before the police. But, the question is whether even to this extent PW-6 Mohan's evidence can be relied upon. 14. Admittedly, PW-6 Mohan was seriously injured and was admitted in Sion Hospital and was there for about 40 days. He was discharged from Sion Hospital on 24/9/1998. In his examination-in-chief, he has stated that after his discharge, he came to Kalyan for giving his AJN 16 statement. He has stated that he had come to Kalyan for giving statement after lapse of 5-6 days. However, admittedly his statement is recorded by the police on 5/11/1998. In this connection, it is necessary to refer to the evidence of PW-8 PI Narhari Athavale, the Investigating Officer. He has stated that he recorded the statement of injured witness PW-6 Mohan on 5/11/1998 on his regaining conscious at Sion Hospital. However, PW-6 Mohan does not say that his statement was recorded at Sion Hospital. In fact, he has stated that he did not answer any question of the police at the hospital. Moreover, if PW-6 was discharged from hospital on 24/9/1998, his statement could not have been recorded in the hospital on 5/11/1998. PW-8 PI Athavale has tried to explain the delay in recording the statement of PW-6 Mohan by saying that he could not record the statement of Mohan from 25/9/1998 till 5/11/1998 though he had made efforts because PW-6 Mohan had gone for Deodarshan (visit to temples). This explanation offered by PW-8 PI Athavale does not stand to reason. PW-8 PI AJN 17 Athavale has also added that he had merely made inquiry with one Deshmukh, relative of PW-6 Mohan at Bombay and he had not sent any police party to PW-6 Mohan's village to bring him to Bombay for recording his statement. This means that no genuine effort was made to record the statement of PW-6 Mohan from 25/9/1998 till 5/11/1998 and a belated statement of PW-6 Mohan was recorded. 15. It is true that PW-6 Mohan was seriously injured. We have already noted that PW-11 Dr. Pandit has stated in his evidence that PW-6 Mohan had to undergo surgery; that his general condition was poor; that his level of consciousness was not good; that he had multiple injuries on his head with two clinical fractures and that he had to undergo emergency trachestomy as he was suffering from oral cavity. In the cross-examination, he has stated that PW-6 Mohan was unable to speak for 30 days while he was admitted in trauma unit. He has stated that PW-6 Mohan was conscious right from his admission, however, AJN 18 he was unable to speak and that he was not even able to make proper gestures. He has further stated that he was not able to record his statement because he was unable to give any statement. 16. PW-9 Dr. Khedkar has also stated that on 17/9/1998, PW-6 Mohan was transferred to E.N.T. Department and Nerve Decompression Surgery was done on him. Undoubtedly, therefore, statement of PW-6 Mohan could not have been recorded immediately. However, at the cost of repetition, it must be stated that if PW-6 Mohan was discharged on 24/9/1998, then there was no reason for the police to wait till 5/11/1998. It is pertinent to note that PW-6 Mohan has in his cross-examination stated that after his discharge from hospital, he went to his village and 4-5 days later, he arrived at Kalyan and gave his statement to the police. If that is so, then it gives rise to a suspicion that perhaps 4-5 days after PW-6 Mohan's discharge, his statement was recorded, which was suppressed. We are, therefore, of the opinion that it is AJN 19 difficult to place implicit reliance on the evidence of PW-6 Mohan. Accused 1 and 2, therefore, cannot be convicted on the basis of evidence of PW-6 Mohan. 17. PW-1 Madhukar Jadhav hails from village Amboda. He was examined by the prosecution to prove motive. It is the prosecution case that in 1994, accused 1 and 2 had thrown vermilion and there was a quarrel. PW-6 Mohan had intervened in the matter and that is why he was attacked. This witness has however turned hostile and is of no use to the prosecution. 18. PW-4 Deepak Jadhav is the brother of the deceased. He has stated that when he came home on 11/8/1998, his mother told him that PW-6 Mohan had been to the house of the deceased to invite him for Vastushanti and accused 1 and 3 had taken PW-6 Mohan and the deceased for dinner at their place. According to him, next morning police arrived with accused 2 and Sharad and intimated that PW-6 Mohan had been injured and thrown under the AJN 20 Shahad bridge. They inquired about the whereabouts of the deceased. According to him, he told them that the deceased had not come back with PW-6 Mohan and accused 1 and 3. According to him, he and Sharad had searched for the deceased. They went to the house of the accused. Only accused 2 was present. He informed them that the other accused had gone for dinner. They learnt that one dead body was found under the bridge at Shahad and it was shifted to the hospital. He went to the hospital and identified the dead body as that of his brother. 19. PW-5 Kisabai Jadhav is the mother of the deceased. She has stated that on 11/8/1998 in the night PW-6 Mohan and accused 2 and 3 had arrived there. The accused insisted that the deceased should accompany them for dinner at their house. They took him with them. According to her, when her son PW-4 Deepak came home, she informed him about this. She has further stated that in the morning at 6.00 p.m., she came to know through police that PW-6 Mohan was injured. In the evening, she AJN 21 learnt that her son was dead. According to her, there was a quarrel between the deceased and the accused on account of throwing of vermilion and also because the father of the accused had bought a girl to their house. According to her, this dispute was settled by the sarpanch i.e. PW-6 Mohan. While PW-6 Mohan has stated that accused 1 and 3 took him and the deceased to their house, PW-5 has not referred to accused 1. She has stated that accused 2 came with accused 3. PW-4 Deepak Jadhav has stated that PW-5 told him that the deceased was taken for dinner by accused 1 and 3, who were accompanied by PW-6 Mohan. This creates a doubt about the prosecution story. It is not clear whether accused 1 or accused 2 came along with PW-6 Mohan and accused 3 to take the deceased away. 20. PW-7 is Sharad Jadhav. In his evidence, he has stated that on 11/8/1998, at 11.00 p.m, he was filling diesel in his rickshaw at the petrol pump. One Nathu informed him that he had dropped Sarpanch PW-6 Mohan AJN 22 to the house of PW-4 Deepak Jadhav as he was not available. He, therefore, went to the house of PW-4 Deepak Jadhav. PW-4 Deepak Jadhav was having meals. He inquired about PW-6 Mohan, the sarpanch. According to him, PW-4 Deepak Jadhav's mother told him that PW-6 Mohan, accused 2 and 3 had been to her house. They had taken the deceased with him and they had gone to the house of accused 2 for dinner. According to PW-7 Sharad Jadhav, he and PW-4 Deepak Jadhav went to the house of accused 2. Accused 2 was in his house. He stated that nobody had come to his house for dinner. He then dropped PW-4 Deepak Jadhav to his house and went to his house. According to him, in the morning at about 8.30 – 9.00 a.m., police accompanied by accused 2 came to his house. He learnt from the police that the deceased was found on a rock in river Ulhas near Shahad Bridge and the sarpanch PW-6 Mohan was lying in an injured condition by the side of Shahad bridge. Therefore, according to PW-7 Sharad Jadhav also the deceased had left his house on 11/8/1998 with PW-6 Mohan, accused 2 and 3. He AJN 23 contradicts the version of PW-6 Mohan that accused 1 was also with accused 2 and 3. Therefore, even on the basis of evidence of PW-4 Deepak Jadhav, PW-5 Kisabai and PW-7 Shard Jadhav, it is not possible to link accused 1 to the offence in question. The prosecution case about complicity of accused 1 becomes suspect.