- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 168 OF 2001 1. Arvind Gajanan Patil, ) Aged 40 years, ) ) 2. Vasant Gajanan Patil ) Age 38 years, ) ) 3. Ganesh Gajanan Patil, ) Aged 35 years, ) ) 4. Mohan Gajanan Patil, ) Aged 53 years, ) ) 5. Narayan Gajanan Patil, ) Aged 45 years, ) ) 6. Janardan Gajanan Patil, ) Aged 47 years, ) ) All residents of village ) Atali, Taluka Kalyan, ) Dist. Thane, at present ) Appellants detained in Kalyan, ) [Original Accused Nos. 1 to 6] District Prison. ) Vs. 1. State of Maharashtra ) ) 2. Smt. Surekha Krishna ) S/o Sakharam Patil ) R/a. Atali village, taluka ) District Thane. ) Respondents Mr. A. P. Mundargi with V. V. Purwant for the , for the Appellants. - 2 - Mrs. V. R. Bhosale, APP for the Respondent No. 1 State. Mr. S. G. Deshmukh with Abhijeet Kandarkar, for the Respondent No.2. CORAM : BILAL NAZKI, J. A. A. KUMBHAKONI, JJ JUDGMENT RESERVED ON : SEPTEMBER ,2008. JUDGMENT PRONOUNCED ON : SEPTEMBER ,2008. JUDGMENT [ PER : A. A. KUMBHAKONI, J.] 1. Six full brothers have filed this appeal against the judgment and order dated 23rd February, 2001 passed in Session Case No. 151 of 1998, by the Additional Sessions Judge, Kalyan, holding all of them guilty of having committed murder of one Krishna Sakharam Patil (hereinafter referred to as “the victim” for the sake of brevity) and also of assaulting another person, Prabhakar Shankar Patil. They have been punished accordingly. 2. The Session case arose out of two incidences which according to the prosecution, took place on the same day within a period of about half an hour and were connected to each other. The six appellants were charged for commission of offence, punishable under section 147, 148, 302, 397 read with section 149 of Indian Penal Code - 3 - and also under section 27 of the Arms Act. All the appellants have been punished under section 302, read with section 34 of Indian Penal Code and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs.15,000/- in default to suffer rigorous imprisonment of three years. All the accused are also convicted for commission of offence of assault and have been punished under Section 326 r/w 34 of Indian Penal Code. Each of them is sentenced on this count to suffer rigorous imprisonment for three years and pay a fine of Rs. 5,000/- each, in default to suffer further rigorous imprisonment for six months. The substantive sentences are ordered to run concurrently. . The impugned order further states that all of them having been convicted for the principal offences read with section 34 of the Indian Penal Code, they are not convicted for the offences punishable under section 147, 148 and the principal offences read with section 149 of I.P.C. In other words, they are acquitted of these offences, including offence under section 27 of the Arms Act. 3. All the appellants herein for the sake of convenience are hereinafter referred to as the accused in the same sequence in which they were charged and tried by the Sessions Court. 1. Arving Gajanan Patil - A-1 2. Vasant Gajanan Patil - A-2 - 4 - 3. Ganesh Gajanan Patil - A-3 4. Mohan Gajanan Patil - A-4 5. Narayan Gajanan Patil - A-5 6. Janardan Gajanan Patil - A-6 4. The case of the prosecution, as it appears not only from the report made under section 154 of the Code of Criminal Procedure, but also from the impugned judgment of the Sessions Judge, in short is as under- . The victim was conducting a business of purchase of land, construction of houses thereon and selling them out. A-4 was also conducting the same business at the same place i.e. Atali village. There was a business rivalry between them. One Prabhakar Patil was helping A-4 in conducting the business. On account of business rivalry, a dispute had occurred between them, which was partly settled some time before the occurrence of two incidences in issue. One Gajanan Bhoir (PW 1) is resident of another village Mandagaon. One Surekha (PW 4) wife of the victim is the daughter of Pandurang Bhoir. PW4 is the cousin sister of PW 1. One Narmada, the full sister of PW 4, is given in marriage to one Jagdish Patil, who is also resident of same village Atali. Thus, both the married sisters are staying at village Atali after their marriage. PW 1 was also participating in the business that was being conducted by the victim. Therefore, PW 1 used - 5 - to often come to village Atali, not only to look after his business that was being conducted by him with victim, but also to meet his both aforesaid married sisters. . On 12th April 1998 there was a fair of the village-deity at village Atali. Prabhakar Patil PW 2 is the injured of the first incidence. All the accused first went to the house of (PW 2). At that time PW 2 was seen by the accused on the road near his house, when all the accused assaulted him and asked him the whereabouts of the victim. The accused attacked PW 2 with chopper and sword. Thereafter the accused went in search of the victim on their mother bikes. This is the first incidence. . On the same day PW 1 had been to Atali village to attend the fair. PW 1 around 11 to 11.15 a.m. went to the house of PW 4 where he met the victim. Both of them had lunch around 12 noon and took rest at the house of victim and PW 4 till about 5 p.m. The victim thereafter suggested PW 1 to visit one Mr. Prakash Lahu Patil by going to his house and therefore, both of them proceeded on feet towards the house of Mr. Prakash Patil from the house of victim. . PW 1 and Victim reached the spot where the second incidence occurred at around 5.15 p.m. Both of them heard voice of A-4 when he called the victim from their rear side and asked him to stop. At - 6 - that time PW 1 saw all the accused who were on two motor bikes and one scooter, with weapons in their hands. Each weapon is separately described by PW 1 in as much as each of the accused is concerned. After parking their vehicles at some distance, all of them rushed towards the victim, attacked him with their respective weapons. The victim sustained 29 injuries and died on the spot. . PW 1 managed to escape safely and reached the house of Dashrath Tare, PW 3, located at a short distance from the place of incidence. PW 3 has a telephone at his house. PW 1 narrated the entire incidence to PW 3 who called police outpost, situated at Mohane and informed them about the incidence. Thereafter the police arrived, completed the formalities, took the body of the victim to the hospital. 5. PW 1 is projected as the sole eye witness of the second incidence, which resulted into, on the spot, death of the victim. PW 1 is also the complainant, on the basis of whose complaint C.R. No. II 39 of 1998 has been registered in the station diary at Sr. No. 25 at 8.30 p.m. The A-1, A-2, A-3 were arrested on 13th April 1998 i.e. on the very next day of the incidence. A-4 was arrested on 17th April 1998, A-5 and A-6 were arrested on 25th May, 1998. - 7 - 6. While in the police custody, A-1 on 15th April 1998 is alleged to have made a voluntary disclosure statement, which is supposed to have resulted into discovery of some of the weapons allegedly used in both the aforesaid incidences from a well. Accordingly, at Exh. 81 seizure panchanama had been recorded. Spear Chopper Sword Art. No. 6 7 8 CA report K-1 K-2 K-3 . The A-3 also while in police custody is alleged to have made a voluntary disclosure statement which is supposed to have resulted into discovery of following weapons that were alleged used in both the aforesaid incidences. Accordingly, seizure memo is recorded at Exh. 83. Spear Chopper Sword Art. No. 9 10 11 CA report D-1 D-2 D-3 . While in police custody, A-4 is also alleged to have made a voluntary disclosure statement leading to the discovery of clothes which were on the person of all the accused at the time of both the incidences in issue. These clothes were discovered from the house of his in-laws, situate at village Karwar, Taluka Bhivandi. Accordingly, seizure memo is prepared and is at Exh. 85. . An autopsy report is at Exh. 92, which shows 21 ante-mortem - 8 - injuries. Almost of all of them are incise wounds. This autopsy report is proved by Dr. Kadam (PW 11). The same discloses cause of death as “nuero haemorrahic shock due to multiple incised wounds”. This report is not disputed by the accused and therefore there is no dispute in this case that the death of the victim was a homicidal death. The finding to that effect recorded by the learned sessions judge does not need any consideration at our hands in this appeal. The inquest panchanama is at Exh. 75 and the spot panchanama is at Exh. 76. 7. All the accused pleaded not guilty to the charge, so framed against them and the trial proceeded. Various witnesses were examined. The relevant may be as under- PW 1 - Eye witness to the second incidence. PW 2 - The person who was injured in the first incidence. PW 3 - Panch witness to inquest panchnama. PW 4 - Widow of the victim, PW 6 - Panch witnesses to the recovery of weapons made at the instance of A-1. PW 7 - Panch witness to the recovery of weapons made at the instance of A-4. PW 11- Dr. Kadam PW 13 to 17 - Police witnesses. 8. In as much as the first incidence is concerned, wherein it is alleged that PW 2 was injured, as all the accused assaulted him , the oral evident of PW 2 in short is to the following effect. - 9 - . All the accused knew that this witness was working with the victim. The victim was conducting the business of material supply, purchasing of land, constructing houses and selling them. This witness was supervising the said work. He knew all the accused as they were from the same village as that of the witness. The accused were also having similar business as that of the victim. There was a dispute between accused and victim on account of some land. Two months before occurrence of the incidence, the accused had been to his house at night, but he was not at home. On the next day morning, the witness lodged police report. . On 12th April 1998 there was a fair of the village-deity and hence his friends had been to him. Around 4.45 or 5.00 p.m. he had come near a school to see off his friends. When the witness reached the road, all the accused came on motor-cycles and assaulted him. A-1, A-5 hit him with two different swords, whereas A-2 assaulted him with the chopper. The witness was about to faint. He lost his upper tooth. After assaulting the witness the accused went away in the direction of the village. - 10 - . Thereafter the witness went to his house and from there he went to the police outpost, situate at Mohane, when the police took him to the hospital where he was examined and was treated. The witness thereafter came to the police station. . The witness was assaulted because he was working with the victim. The witness identified the weapons in the Court with which he was attacked, though the witness failed to give description of the blow allegedly given by A-5 while assaulting the witness. . In the cross-examination, the witness admitted that he did not have a copy of the report lodged by him with the police, when on the earlier occasion the accused had visited his house at night. ( The learned counsel appearing on behalf of the appellants pointed out that such a report is even not on record). The witness did not shout when he was assaulted with weapons by the accused. After assault the witness went home and did not go to the house of his relatives, situate close by the spot where the incidence occurred, though he was about to faint. All the accused came on two motor bikes, got down and asked the witnesses as to where was the victim and they assaulted witness and thereafter all of them went on motor-bike. The witness admitted in his statement that the police did not record his allegation that he lost one tooth. He admits that the police did not seize clothes that he was - 11 - wearing at the time of incidence. The witness stated that he reached the house around 12 mid- night. The witness admitted that the police have also not recorded his assertion that accused assaulted him because he was working with victim. The witness admitted that he was accused in a case in which one Chhagan Bhoir was allegedly murdered and that he was acquitted. 9. It is pertinent to note that no separate complaint was lodged by PW 2 with the police in regard to the alleged assault on him by the accused. Admittedly, even clothes that he was wearing at the time of incidence were not seized. If accused-A-1 and A-5 assaulted PW 2 with swords and A-2 assaulted PW 2 with chopper on the skull, and left thigh and left hand of PW 2 and if the accused lost his upper tooth as a result of the assault and further if the assault was so severe that PW 2 almost fainted, certainly, there would have been some blood loss which would have got collected on the clothes that PW 2 was wearing at the time of incidence. Non seizure of these clothes coupled with non- registration of offence in regard to this incidence separately, creates a serious doubt in our mind about even occurrence of this first incidence. The fact that PW 2 was admittedly closely associated with the victim is required to considered, in its proper perspective, while appreciating his - 12 - oral account of the incidence in issue. 10. The prosecution has relied upon this first incidence mainly to bolster its case that the accused were hunting for the victim and therefore, they first caught hold of PW 2 to find out the whereabouts of the victim. In our view if it would have been so, then certainly PW 2 would have stated in his evidence that the accused inquired with him the whereabouts of the victim. Surprisingly in the entire examination in chief, there is not even a word in this regard uttered by PW 2. In the examination in chief all that PW 2 says as under- “ I am assaulted because I was then working with Krishna.” There is nothing in the examination-in-chief of this witness to show that the accused assaulted him during the course of their search of the victim. 11. The oral evidence of this witness also becomes doubtful because the witness has stated that a month before the incidence, the accused had come to his house at night, inquiring about him when he was not available, next day he had lodged a police complaint. However, he admitted in the cross-examination that he did not have even a copy thereof. Moreover, on the record no evidence whatsoever has been - 13 - produced in support of this incidence. 12. If the assault on the PW 2 was so grievous that he was about to faint, it is difficult to believe that PW 2 did not even shout, as is specifically admitted by him in the cross-examination. He also did not approach his relatives who were residing close to the spot of incidence. The PW 2 also did not go to the nearby grocery shop and claims to have gone straight home. Though the PW 2 refers the time of this first incidence as around 4.45 p.m. and that he thereafter went straight home, in the cross-examination he has admitted that he reached home at 12 midnight It is pertinent to note that his home is very close to the spot of the incidence where he could go on foot in a wounded condition that was so serious that he was about to faint. 13. To get over all the aforesaid difficulties, the learned APP contended that because there were two incidences that had taken place within a span of half an hour, they were in fact part of one incidence and therefore no separate offence was registered in regard to the assault on PW 2 by the accused. The learned APP also drew our attention to the following sentence in the cross-examination of the PW 2, to counter the submission of the accused that PW 2 even did not state that the acused - 14 - tried to find out from him the whereabouts of the accused. “They got down from the motor-cycle, they asked me where is Krishna Patil and they assaulted me.” . We are unable to accept the explanations so offered by the learned APP and in our view these grounds do not lead us to believe the testimony of PW 2. It is also worthwhile to note that though there was a fair in the village, not a single independent witness of this incidence is there. Even none of the friends who had come to PW 2 on account of the fair and to see off whom PW 2 had been to the spot when he was assaulted, are also not examined. 14. In as much as the injuries, allegedly caused to PW 2 in the first aforesaid incidence are concerned, the injury certificate titled as “medico-legal certificate” is at Exhibit 93. There are lot of discrepancies that have come on record, in regard to the injuries that the PW 2 suffered allegedly during the course of the aforesaid alleged first incidence. . The aforesaid medico-legal certificate Exhibit 93 reads thus : - “ Medico legal certificat 3/6/98 - 15 - This is to certify that I have examined Shri Prabhakar Shankar Patil on 12.4.98 at 7.00 p.m. And my findings are as following. Alleged R/o. Assault by chopper on 12.4.98 at about 5.20 p.m. A/e= Conscious a/e i) Incised wound at left arm lateral aspect, size 1 x 1 x 1 cm on fresh bleeding present. ii) Incised wound at left hand near Thumb dorsal aspect, size = 1 ½ x ½ x ½ cm. fresh. (iii) Loosening of of upper lateral incisor tooth with half cut tooth same, fresh bleeding from gum present with swelling of gum present. (iv) Contusion at left thigh lateral aspect size – 4 x 2 cm Injury Nos. (1) (2) & (3) caused by sharp cutting object. Injury No. (4) caused by hard and blunt object. Seal Sd/-” . This certificate shows that two incised injuries, one at the left arm, and the other at the left hand near Thumb dorsal, in addition on the left thigh contusion, were found. In the aforesaid background if we consider the evidence of PW 2, he describes the injuries caused to him during the course of the first incidence as under - .“They made assault on me. Arvind had hit sword over my left - 16 - side skull above ear (Witness points out the place by hand). Narayan assaulted me by sword over my left thigh. Vasant assaulted me by a chopper in his hand over my left thumb (at the bottom of thumb). I felt fainted. In that I have lost one upper tooth. The accused went away in the direction of the village.” . Thus, witness has deposed about injuries caused to him as under- (i) on the left skull over ear by sword ; (ii) on his left thigh by sword; (iii) on his left thumb by chopper; (iv) loosening of one tooth.” 15. A Comparison of aforesaid injuries with the one set out in Exhibit 93 would reveal that the medico-legal certificate does not refer to any injury caused to the skull over the left side ear at all. Though the certificate Exhibit 93 refers to an injury on the left arm, the witness does not say anything about it at all. Though the witness says that he was assaulted by a swords over his left thigh, the injury certificate Exhibit 93 states only contusion at the left thigh, caused by hard and blunt object, which obviously could not be a sword. Though the witness talks about loss of tooth, Exhibit 93 does not say so. It is also pertinent to note that the Investigating Officer (PW 13) has clearly admitted in the cross- - 17 - examination that the PW 2 had not told him at the time of recording of statement that one tooth was uprooted, on account of assault to him by the accused. The only common factor between the certificate and the deposition of the witness is the injury caused below the thumb of the left hand of the witness. 16. In the light of aforesaid discrepancies as to the alleged injuries it becomes doubtful as to whether these injuries were caused at all to the PW 2 and obviously as to whether, if at all there were injuries caused to him, whether they were caused during the alleged first incidence in issue. Considering the overall facts, circumstances brought on record in this regard, we have our own doubts, firstly about the injuries and secondly about the cause of alleged injuries. - 18 - 17. It is further pertinent to note that during the course of cross examination of PW 13, the Investigating Officer has simply admitted that he had scored the date 13th and made it 12th, as the date on which the statement of PW 2 was recorded by him. No doubt he further clarifies that he had recorded statement of PW 2 on 12th i.e. the date of the incidence. However, this alteration in the date needs to be noted in the aforesaid background, discussed by us hereinabove, raising doubts about the occurrence itself of the first incidence. 18. In this context, it is also pertinent to note that the PW 2 in his evidence has stated that this statement of PW 2 was recorded around 7.30 p.m. by the police whereas the Investigating Officer has categorically stated in the cross-examination that he has not recorded statement of PW 2 till 8.30 p. m., for the reason that there was a tension in the village and that he was busy in Bandobast in the village till 8.30 p.m. . Thus, there is a discrepancy about the time, as to when was the statement of PW 2 recorded by the police. If the version of PW 2 is correct, one fails to understand why a separate FIR was not lodged by the police, in regard to the first incidence, as the same was reported to the police, at the time well before recording of the FIR relating to the - 19 - second incidence. The police cannot have specious excuse that the two incidences were part and parcel of one incidence, and therefore, they did not feel it necessary to record a separate FIR regarding the first incidence because by the time PW 2 reported to the police (as alleged and if proved) about the first incidence, the Police was