IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRI. APPELLATE JURISDICTION CRI. APPELLATE JURISDICTION CRI. APPELLATE JURISDICTION CRIMINAL APPEAL NO. 921 OF 1988 CRIMINAL APPEAL NO. 921 OF 1988 CRIMINAL APPEAL NO. 921 OF 1988 The State of Maharashtra ... Appellant (Ori. Complainant) V/s 1. Dattu @ Dattatraya Kana Vaskar 2. Sunil Dattatraya Vaskar 3. Rohidas Dattatraya Vaskar 4. Ganesh Govind Patil All residents of - Manghar, Tal. Panvel, Dist. Raigad. ... Respondents (Ori. Accd.Nos.1 to 4) Mr. B.H. Mehta, A.P.P. for the appellant. Mr. P.P.Hudlikar with C.R.Sonawane for the Respondent Nos.1 to 3. ALONGWITH ALONGWITH ALONGWITH CRIMINAL REVN. APPLICATION NO. 316 OF 1988 CRIMINAL REVN. APPLICATION NO. 316 OF 1988 CRIMINAL REVN. APPLICATION NO. 316 OF 1988 Kishor Janu Patil, At Village Manghar, Tal. Panvel, Dist. Raigad. ... Applicant. V/s 1. Dattu @ Dattatraya Kana Vaskar 2. Sunil Dattatray Vaskar 3. Rohidas Dattatraya Vaskar 4. Ganesh Govind Patil All residents of Manghar, Tal. Panvel, Dist. Raigad. 5. The State of Maharashtra. ... Respondents 2 Mr. K.N. Kore for the applicant. Mr. P.P. Hudlikar with C.R. Sonawane for Respondent Nos. 1 to 3. Mr. B.H. Mehta, A.P.P. for the Respondent No.5 State. CORAM: R.M.S. KHANDEPARKAR & CORAM: R.M.S. KHANDEPARKAR & CORAM: R.M.S. KHANDEPARKAR & P.V. KAKADE, JJ. P.V. KAKADE, JJ. P.V. KAKADE, JJ. DATED: 4TH MAY, 2005 DATED: 4TH MAY, 2005 DATED: 4TH MAY, 2005. ORAL JUDGMENT (Per Kakade, J.): ORAL JUDGMENT (Per Kakade, J.): ORAL JUDGMENT (Per Kakade, J.): 1. The State has preferred this appeal against the judgment and order dated 11.7.1988 passed by the Sessions Judge, Raigad, Alibag acquitting all the four accused persons of the offences punishable under Sections 302 and 307 read with 34 of the I.P.C. alongwith offence under Sec. 25(1)(a) of the Indian Arms Act. The Criminal Revision application is filed by the original complainant against the same judgment of acquittal and, therefore, both the proceedings are being disposed of by this common judgment. 2. At this juncture, it may be noted that accused Nos. 1 & 4 have since died vide death certificates brought on record and, therefore, the appeal abates against them and is being prosecuted only against accused Nos. 2 & 3 3. 3. The prosecution case in a nutshell is that, on 26.10.1986, deceased Janu was standing in the courtyard of his house and just opposite to his house, there is the house of accused Nos.1 to 3. Accused No.1 is the father of accused Nos.2 & 3 while accused No.4 is a stranger to the family of accused Nos. 1 to 3. All the accused persons were standing in the gallery of their house in front of the courtyard of the house of deceased Janu and they started shooting at the deceased at about 4 p.m. At the same time, PW-3 Atmaram Patil who had just come from Panvel, was standing near the foot-steps of his house. He called his father Janu towards him when the incident of firing at the hands of accused Nos. 1 to 4 took place as a result of which deceased sustained pellet injuries and fell down. PW-3 Atmaram then proceeded further to give him help but he also came to suffer fire arm injury from guns of accused Nos. 1 to 4. Other witnesses who were then present in the courtyard also suffered injuries as there was incessant firing undertaken by accused Nos. 1 to 4 by standing in the gallery. The complainant Keshav was also present in the courtyard 4 when the incident took place and he was also likewise injured. Deceased Janu had also suffered injury on his private part as well as on the other parts of his body. He was, therefore, lifted to the nearby cattle-shed and the other injured Atmaram was lifted to his house. The complainant thereafter proceeded to Kundewahal where his brother-in-law stays and taking his cart he came to village Pargaon. Thereafter he proceeded to Panvel police station from Pargaon village and the cart was sent back to the village. The complaint came to be lodged in the police station vide Exh.15 by witness Keshav. The complainant being himself injured, was then sent to the hospital for treatment. Likewise all the injured were also admitted to the hospital. Complaint at Exh.15 came to be recorded by P.S.I. Latif on 26.10.1986 and was referred to the police station for registration of the offences alongwith the necessary report vide Exh.62. The offence was registered against the accused persons at C.R.No.575 of 1986 under Sections 302 and 307 read with 34 of the I.P.C. and also under Sec. 25 (1)(a) of the Indian Arms Act. The investigation commenced in which course the dead body was sent for post-mortem examination alongwith the 5 report. Then P.S.I. Mansingh Pawar then proceeded to village Manghar which is the scene of offence alongwith police party. He took search of the house of accused No.1 in the presence of panchas and seized 4 empty cartridges as per panchnama. Thereafter he prepared panchnama of the scene of offence. Later on recording of statements of Rajendra Patil, Chhaya Atmaram Patil, Radhabai Patil, etc. was done and he also recorded the supplimentary statement of the complainant on that very day. The accused could not be traced on that day because they were reported to be absconding. Then on 27.10.1987 search of the house of accused No.1 was again taken under the panchnama. Also on that day, the clothes of injured witnesses were seized under panchnama. Statement of Sudam Maruti etc. were recorded and thereafter medical certificates were also obtained as can be seen from the record. However, the accused were not traced till that day. P.S.I. Thakur, however, produced the clothes of the deceased and they were taken into custody as per panchnama. On 28.10.1986 there was further recording of statements of Raghunath Jitekar and others. Search of the accused was going on in the meantime. On 29.10.1986 statements of several other witnesses were recorded. On 30.10.1986 medical certificates in respect of the injuries sustained by the 6 injured were received. Various police stations were also informed regarding absconding accused persons. However, on 11.11.1986 two accused persons including accused No.1 came to be apprehended from their hiding place. On 12.11.1986 there was discovery of the gun at the instance of accused No.1 from the well pointed out by him and the weapon was recovered from the well vide memorandum of panchnama Exh.66. A report was then submitted to the superior officer for cancellation of the licence for the gun. Thereafter, the muddemal was sent to the Chemical Analyser for examination and report of the C.A. was received in due course including the report of the forensic experts to whom the gun was sent alongwith the recovered spent pellets and cartridges including the empty cartridges. On completion of the investigation, the chargesheet was sent to the Court of law. 4. The learned Magistrate committed the case to the Court of Sessions. The learned Sessions Judge framed charges against the accused persons for the aforesaid offences to which they pleaded not guilty. By and large, the defence of the accused, as revealed from the cross-examination as well as statement under Sec. 313 of the Cr.P.C. is to the effect that on the day of 7 Dasara, complainant Kishor and witness Kamali were seen by Walya - servant of accused No.1, in compromising position. Therefore, witness Atmaram called village panchayat meeting and in that meeting Walya narrated the whole incident and as there was hue and cry in the meeting, the meeting was dispersed. Thereafter, in order to teach a lesson, witness Kishor and other prosecution witnesses decided to assault Walya. Hence on 26.10.1986 at about noon time they tried to assault him and hence entered the house of the accused with whom Walya was working. The accused persons were not in the house, therefore, the witnesses pelted stones at the house of the accused. Thereafter, Walya went away and Kishor took the gun of accused No.1 which was lying in the house of the accused. At that time, Kishor and others followed Walya and fired at the house of Janu suspecting that Walya had gone there and in the said firing Janu and others sustained injuries and ultimately Janu died. The learned Trial Judge proceeded to record the evidence of the prosecution wherein as many as 8 eye-witnesses were examined besides leading circumstantial evidence on record. However, the learned Trial Judge found the prosecution evidence as not reliable and defence theory 8 was held to be not only credible but also reasonably established and as such all the accused persons came to be acquitted of all the charges levelled against them. Hence the appeal. 5. We have heard the learned A.P.P. for the State and Mr. Hudlikar for the respondents at length with whose help we have also critically perused the entire evidence on record. 6. At the outset, it may be noted that there is no doubt whatseover that the deceased died homicidal death due to fire arm injuries. It is also not in dispute that the injured persons also suffered fire arm injuries in the course of firing from gun/guns. The perusal of the medical officer’s note Exh.35 shows that there were as many as 11 punctured external injuries on the body of the deceased and the medical officer opined that those were sufficient in the ordinary course of nature to cause death of deceased Janu and the death was also instantaneous. As noted earlier, there are as many as 8 eye-witnesses out of which 6 are family members of the deceased including 3 injured persons, besides two independent 9 eye-witnesses to the incident. PW-2 Kishor, the complainant is son of deceased Janu. It has come in his evidence that he has two brothers by name, Laxman and Atmaram. Brother Laxman was residing with father and brother Atmaram was residing separately. According to him, the incident took place on 26.10.1986 at about 4.00 p.m. when his brother Atmaram had just arrived from Panvel on motor-cycle which was parked behind his house and then went to the courtyard where his father deceased Janu was standing. He made signal to his father to come towards him but exactly at that juncture accused Nos. 1 to 4 appeared in the gallery of their house and started firing from there. As a result of the firing, his father fell down in the pool of blood oozing from his body. As Atmaram proceeded to help his father, he too was shot at by gun fire by accused No.2. Accused Nos. 2 & 3 were also there firing at the group of persons in the courtyard of the deceased. Atmaram received pellet injury and he also fall on the ground. The complainant, his mother, sister and brother’s wife Chhaya also received injuries on their person as a result of this incessant firing. Somehow, during the shower of pellets fired from the guns of accused Nos. 1 to 4, the deceased was lifted to 10 the nearby cattle-shed and PW Atmaram was taken to his house. Deceased Janu, however, died instantaneously as a result of the injuries sustained by him and Atmaram himself was rendered unconscious. The complainant, however, realizing the gravity of the situation proceeded to the village Kundewahal where his brother-in-law lives and obtained bullock cart from him and went to Panvel and the same was sent to the village to fetch injured persons. In the meantime, the complaint came to be lodged at the police station vide Exh.15 and the police were also prompt enough to send him to the medical officer for treatment to his injuries. Rest of the injured were also attended to at police station in due course of time and they also came to be examined by the medical officer for the injuries sustained by them. PW-3 Atmaram has corroborated the evidence of the complainant who has stated that he had just arrived from Panvel on his motor-cycle at which time he came to the footstep in front of the Ota Ota Ota (platform) of his house. His father Janu was near the footsteps of the Ota Ota Ota of the house in standing position. His mother and sister were there. Complainant Kishor was near the cattle shed. This witness came to his father and asked him to come 11 near him. Deceased Janu was about to come towards him, accused No.1 fired shot from his gallery. Then accused Nos. 1 to 4 who were standing there also started firing upon Janu and persons who were present in his courtyard. It has come in his evidence that the gallery of the house of the accused No.1 is visible from his courtyard which is at the distance of about 50 to 60 feet. His father’s house faces to northern side and there is a small Padvi Padvi Padvi in front of the said house of his father. Atmaram has given details about the firing which took place at the distance of the accused persons and resulted in infliction of injuries upon them including Janu who succumbed to the injury intestaneously. This version is again corroborated by PW-4 Gangubai - daughter of deceased Janu, PW-5 Rajendra, PW-6 Chhaya - wife of witness Atmaram, PW-7 Radhabai - widow of deceased Janu and mother of other witnesses including the complainant and Atmaram, PW-8 Mahadeo and PW-9 Kanha. Out of these witnesses, PW-5 Rajendra, PW-8 Mahadeo and PW-9 Kanha are neighbours of deceased Janu, whereas other witnesses are his family members. On perusal of their entire evidence, it is found that they have corroborated the testimony of complainant and other witnesses on all material points. It is also pertinent to note that the complaint came to be lodged at about 12 5.00 p.m. on the same day i.e. on 26.10.1986 i.e. about one hour after the incident. The contents of the F.I.R. fully corroborate the version given not only by the complainant Kishor but also by all other eye-witnesses amongst whom there are actually injured witnesses. It is also pertinent to note that the F.I.R. was lodged without any loss of time and, therefore, there is absolutely no reason to disbelieve the truthfulness of the version made in the F.I.R. It is also to be noted that there was absolutely no reason for complainant Kishor to manipulate the facts in order to falsely implicate the accused persons during the period between the incident and the filing of the F.I.R. This is obviously so and reflected from the evidence because due to incessant firing Janu was lying dead and other witnesses i.e. family members of complainant Kishor were lying injured on the spot when he rushed to the police station. It may also be noted that Kishor himself also was injured, which aspect nullifies the defence theory that Kishor fired at the relevant time. 7. It was urged on behalf of the respondents that the eye-witnesses injured persons are family members of the deceased and, therefore, interested persons and thus cannot be believed in order to bring home the guilt. 13 However, it is to be noted that there are as many as three eye-witnesses who are independent and have no reason to implicate the accused persons falsely. PW-5 Rajendra has stated that his house is located in close vicinity of the injured as well as accused persons and when he was on the first floor of the house at about 3.45 p.m. to 4.00 p.m., his attention was attracted to the gallery of accused No.1 where all the four accused were standing armed with guns and at that time, accused No.1 fired towards the house of Atmaram when he fired for the second time. However, accused continued to fire with the gun. Deceased janu and Atmaram were found to be lying on the ground due to bullet injuries. Kishor, Chhaya, Radhabai and others were also were seen lifting deceased Janu and they were also injured when accused persons continued to fire upon them. Similarly, PW-8 Mahadeo had stated that, on the day of the incident he had gone to the house of Atmaram at about 4.00 p.m. when Atmaram came on motor-cycle and was standing on the footsteps of his house and called his father who was standing in the courtyard. At that time, accused No.1 fired at him and Janu fell down. Thereafter accused No.3 fired at Atmaram who also fell down. Then accused persons started firing on the family members of deceased Janu as a result of which they sustained injuries. PW-9 14 Kanha gave similar version of the incident. Evidently, he is also neighbour of the parties involved in the incident and he has stated that he witnessed the incident when accused Nos. 1 to 4 fired at Janu and his family members as a result of which Janu died. 8. At this juncture, it must be noted that all the said eye-witnesses were subjected to searching cross-examination but no material contradictions or discrepancies have occurred in their version of the incident. It is also not brought on record as to why as many as 3 independent witnesses should testify falsely against the accused persons who were influential members of the village. Accused No.1 was Sarpanch of the village, accused Nos. 2 and 3 are his sons and accused No.4 was a stranger but known to the accused persons. Mr. Hudlikar, learned counsel for the respondents vehemently urged that the witnesses who were related to the deceased, though were injured, were interested witnesses and, therefore, their ocular testimony cannot be relied upon. In this regard we must note that, even if witness is related to the deceased, there is no reason to discard his evidence if he is reliable and trustworthy. What is required is a cautious and careful 15 approach in appreciating the evidence because a part of the evidence might be tainted owing to the relationship and the witnesses might be exaggerating the facts. In such an event, the Court should appreciate the evidence in the light of other evidence on record which may either oral or documentary. In the present case, as we have seen earlier, merely because the witnesses are relatives of the deceased and other witnesses are known to the deceased, then it cannot be the ground per se to discard the testimonies of such witnesses if those are supproted by other circumstantial evidence brought on record. In this case, not only the relative witnesses have implicated the accused persons squarely but they are also injured in the course of incessant firing at the hands of accused Nos. 1 to 4 in which course deceased Janu lost his life. Moreover, there is no reason reflected from the entire record as to why three independent witnesses should be disbelieved when they testified to the effect that all the accused persons fired their guns at Janu and other witnesses as a result of which Janu was killed on the spot and others were injured. In view of this aspect and the fact that the ocular testimonies of these witnessess are supported by the circumstantial evidence, there is absolutely no reason to doubt the veracity and credibility of the 16 evidence of the eye-witnesses in this case. 9. The ocular testimonies are further strengthened by the medical evidence on record. As we have noted earlier, there were as many as 11 external punctured wounds on the person of deceased Janu and all were evidently bullet injuries. Those were as follows:- (1) Penetrated wound right scrotum laterally 1/2 cm. x 1/2 cm. (2) Penetrated wound left scrotum laterally 1 cm. x 1 cm. (3) Penetrated wound on right thigh anteriorally U/3 1/2 cm. x 1/2 cm. (4) Penetrated wound on left thigh laterally two U/3 1/2 cm. x 1/2 cm. each. (5) Penetrated wound right laterally, middle third thigh one 1/2 cm. x 1/2 cm. (6) Penetrated wound over illiac posteriorly in most exillary lobe one 1/2 cm. x 1/c cm. 17 (7) Penetrated wound right illiac crest post. Two in number in mid scapular line. Each of 1/2 cm. x 1/2 cm. size. (8) Penetrated wound over right gluteal region two in number each of 1/2 cm. x 1/2 cm. size. (9) Penetrated wound over left bluteal region one inmiddle area 1/2 cm. x 1/2 cm. size. (10) Penetrated wound over right thigh posteriorly U/3 1/2 cm. x 1/2 cm. size. (11) Penetrated wound over left lumposcasal area just above illiac creast one 1/2 cm. x 1/2 cm. size. Similarly, it would be worthwhile to refer to the injuries sustained by each of the injured at this stage. Witness complainant Kishor Janu Patil suffered following injuries: (1) Punctured wound just below elbow joint posteriorly size 1/4 cm. x 1/4 cm. (2) Punctured wound on the left forearm M/3 exit 18 wound size 1/2 cm. x 1/2 cm. (3) Fracture of radius left forearm M/3 exit wound. Crack. Witness Tukaram Gajanan Patil sustained the following injuries: (1) Punctured wound left side neck base. Size 1/2 cm. x 1/2 cm. (2) Punctured wound left shoulder frontal area. Two in number each of 1/2 cm. x 1/2 cm. (3) Punctured wound just above illiac crest posteriorly. Size 1/2 cm. x 1/2 cm. (4) Abrasion on right maxills. Size 1 cm. x 1 cm. Witness Radhabai Janu Patil sustained following injuries: (1) Punctured wound, medialy just below left ankle. Size 1/2 cm. x 1/2 cm. 19 Witness Smt. Chhaya Atmaram Patil sustained following injuries: (1) Punctured wound on left thigh, posteriorly, size 1/4 cm. x 1/4 cm. (2) Punctured wound on left thigh, posteriorly, size 1/4 cm. x 1/4 cm. (3) Punctured wound on left thigh, posteriorly, size 1/4 cm. x 1/4 cm. Witness Atmaram Janu Patil sustained following injuries:- (1) Punctured wound on left chest front, just below clavicle, size 1 cm. x 1 cm. (2) Punctured wound in line of left breast. Size 1/2 cm. x 1/2 cm. (3) Punctured wound over left breast. Size 1/2 cm. x 1/2 cm. (4) Punctured wound on right side neck base. Size 1 cm. x 1/2 cm. 20 (5) Punctured wound on right arm L/3, size 1/2 cm. x 1/2 cm. All the injuries on the persons of deceased and injured are seen to be punctured wounds evidently caused by pellets fired from the fire arm. The medical certificates Exhs. 28 to 30, 32 and 33 coupled with the testimony of the medical officer are in total corroboration with the eye witness account to show that the injuries were inflicted at about 4.00 p.m. and those injuries were bullet wounds suffered at the relevant time. Therefore, the medical evidence is clear enough to show that not only the injuries on the person of deceased but also those on the person of injured persons were pellet injuries having caused due to firing made by accused Nos. 1 to 4 at the relevant time and place. The medical officer has further stated that he found 5 pellets and extracted those from the body of deceased Janu. According to him, the death was due to cardio respiratory failure secondary to haemorphagic shock due to rupture of multiple vessels secondary to fire arm injuries. He has further stated regarding injuries of the deceased Janu that there were 10 entry wounds and only one injury was exit wound. Out of 10 entry wounds, 8 are on the left side and only 2 were on the 21 right side and all the entry wounds could be caused due to fire arm. Injury to scrotum, according to the medical officer was possible by the gun hit at the angle of 45 degrees. The exit wound is also on the scrotum. This is the position so far as the medical evidence is concerned. 10. This brings us to the evidence regarding motive attributed to the accused persons in this case. Initially it must be noted that the evidence regarding existence of motive