1 S IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 724/2000 Arvind Shantaram Manere, Aged 35 years, normally residing at village Dunga, Taluka Bhiwandi, Dist.Thane (Presently in Yerawada Central Jail, Pune) Appellant/ Ori.Accused-9 V/s 1] The State of Maharashtra 2] Maruti Sridan Bhagat, R/o Dunga,Tal.Bhiwandi,Dist.Thane Respondents ALONGWITH CRIMINAL APPEAL NO. 730/2000 Kathod Savlaram Manere, Hindu,Age-35 yrs. Occ.Agriculture, R/o Village Dunga,Tal.Bhiwandi, Dist.Thane Appellant/ Ori.Accused-10 Vs. The State of Maharashtra Respondent ALONGWITH CRIMINAL APPEAL NO.833/2000 Murlidhar Dagade Manere Age-26 yrs.R/o Dunga, Tal.Bhiwandi,Dist.Thane Appellant/ Ori.Accused-6 Vs. The State of Maharashtra Repondent 2 ALONGWITH CRIMINAL APPEAL NO.834/2000 1] Manohar Dagadu Manere, Age-28 yrs. 2] Kailas Namdeo Manere, Age-27 yrs. 3] Govind Dagadu Manere, Age-35 yrs. 4] Bhiva Dagadu Manere, Age-38 yrs. 5] Nilkantha Dagadu Manere, Age-33 yrs. 6] Jagdish Namdeo Manere, Age-33 yrs. 7] Hanumant Sudam Manere,(Deleted) Age-35 yrs. All R/o Dunga,Tal.Bhiwandi, Dist.Thane Appellants/ Ori.Accused 1 to 5 , 7 & 8 Vs. State of Maharashtra ALONGWITH CRIMINAL APPEAL NO.908/2000 Hanumant Sudam Manere, Appellant/Ori.Accused-8 Age-35 yrs.R.o. Dunga, Tal.Bhiwandi,Dist.Thane (Presently -Yerawada Central Jail,Pune) V/s 3 1] The State of Maharashtra 2] Maruti Sridan Bhagat, R/o Dunga,Tal.Bhiwandi,Dist.Thane Respondents Mr.M.S.Mohite,Advocate for Appellants in Appeal No. 724/200, 833/2000, 834/2000, and 908/2000 Mr.S.R.Chitnis,Sr.Counsel with Smt.V.R.Raje, Advocate for Appellant in Appeal no.730/2000 Mr.F.R.Shaikh,APP for State in Appeal No. 724/2000,730/2000, and 834/2000 Mr.J.P.Yagnik,APP for State in Appeal No.833/2000 and 908/2000 CORAM : B.H. MARLAPALLE & MRS.MRIDULA BHATKAR,JJ. DATE : 22nd March, 2010 ORAL JUDGMENT (Per Shri.B.H.Marlapalle,J.) . All these appeals are directed against the order of conviction and sentence passed by the learned 4th Additional Sessions Judge, Thane , on 29/9/2000 in Sessions Case no. 297/97 and therefore, they are being decided by this common judgment. 2] All the appellants have been acquitted for the 4 offences punishable u/s 307 and 326 r/w section 149 of the Indian Penal Code , whereas they have been convicted for the offences punishable u/s 147 , 148, 325,r/w 149 , 324 r/w 149, and 302 r/w 149 of the Indian Penal Code. For the offence punishable u/s 302 r/w 149 of the Indian Penal Code they have been sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- i/d one year rigorous imprisonment . Out of the fine amount an amount of Rs.25,000/- was directed to be given by way of compensation to the legal heirs of the deceased. During the pendency of these appeals Appeal no.834/2000 which is filed by accused nos.1 to 5 ,7 and 8 stands abated so far as accused no.7 is concerned as he is no more. During the pendency of these appeals accused nos.1 to 3 and accused no.5 are in jail , whereas accused no.4 Bhiva, accused no.6 Murlidhar, accused no.8 Hanumant, accused no.9 Arvind , and accused no.10 Kathod are on bail. 3] As per the prosecution case the incident had taken place on 3rd May,1997 at 11.15 p.m., at village Dunga, Taluka Bhiwandi, Dist.Thane in front of the house of 5 Shamibai as well as the deceased . P.W.2 Maruti Bhagat and deceased Ramesh are the brothers. P.W.3 Ramabai is their sister. She is the resident of Alimgar,Taluka Bhiwandi, but on the date of the incident she happened to be in her brother’s house. P.W.1 Ekanath Patil is the cousin of P.W.2 and the deceased and was the Police Patil of village Dunga at the relevant time . He has three more brothers namely Ramchandra, Vasant and Balkrishna and alongwith these brothers, his father is staying in the old house , whereas P.W. 1 has constructed his own house which is located at the northern side and beyond the railway track. There are two rival groups in the village, one led by P.W.1 and the other led by accused no.3 ,Govind, who was the Sarpanch at the relevant time. On 3rd May,1997 at about 9 p.m. The accused persons allegedly went near the house of P.W.2 and started abusing and therefore he asked Vasant, brother of P.W.1 , to inform the same to P.W.1. P.W.1 came to the site at about 11 p.m. and questioned the accused persons as to why they are abusing and he also tried to pacify them. At this juncture he received one assault on his lips and second on his back. He collapsed and was lifted by his 6 brother Ramchandra and taken to the hospital. As the accused were assaulting P.W.1, P.W.2 and deceased Ramesh came to rescue him. But both of them were assaulted. P.W.2 received two blows on his chest and two blows on his back, whereas deceased Ramesh was mercilessly beaten and sustained bleeding injuries in the incident which was in front of the house of Shamibai. The accused then dragged the deceased up to the house of vice Sarpanch Pandit and assaulted him with the weapons like sword iron bars, and wooden sticks . P.W. 3 Ramabai followed the accused when they were dragging the deceased and she intervened when the deceased was being assaulted . She sustained some injuries .The accused killed her brother Ramesh and threw the dead body in the gutter in front of the house of Dy.Sarpanch Shri. Pandit. She ran back to her house and informed the same to P.W.2 and also stated that despite her efforts ,the accused continued their assault and Ramesh died. P.W.1 was shifted to the Municipal Hospital at Bhiwandi , so also P.W.2 and P.W.3. On the next day i.e.4th May, 1997 P.W.1 was shifted to a private hospital i.e. Gurukrupa hospital ,Bhiwandi, and all the three 7 injured were treated in the said hospital. P.W.1 came to be discharged on 28th June, 1997.The statement of P.W.1 was recorded in Gurukrupa hospital on 4/5/1997 and it was registered as F.I.R.,(Exh.74) at 6 a.m.. Statements of P.W. 1 as well as P.W.3 were recorded while they were in the hospital and after P.W.1 had regained his conscious on 4th May, 1997. 4] The police visited the site on 4th May, 1997 and drew spot panchanama (Exh.91) and inquest panchanama (Exh. 99). Dead body of Ramesh was sent for postmortem to Indira Gandhi Memorial Hospital, Bhiwandi and P.W.10 Dr. Kantilal Sontakke conducted autopsy and signed the postmortem report (Exh.115). The accused were absconding and came to be arrested on 26th May , 1997. The investigation was taken over by Mr.Vikas Patil, Senior Police Inspector , who died during the pendency of the trial. Further investigation in C.R.No.41/97 was continued and the chargesheet came to be filed on 16th July, 1997. The case was committed on 8th August, 1997 as being exclusively triable by the Sessions Court. The charge was 8 framed on 16th February, 1999 at Exh.30. By filing an application the charge was altered for the offence punishable u/s 307 r/w section 149 of the Indian Penal Code. 5] The prosecution examined 11 witnesses in support of its case and the defence examined 2 witnesses in support of their case that at the time of incident i.e. 9 to 11 p.m. there was no power supply in village Dunga and a complaint was registered against the complainant party by Jagdish Manere (accused no.7) for the offence punishable u/s 324 of the Indian Penal Code. 6] As per the evidence of P.W.10 Dr.Sontakke deceased Ramesh had sustained the following external injuries. 1] Compound crush wound of 4” x 2”, deep to skull seen over left parieto- frontal region. 2] Compound crush wound 3 and ½” x 1” deep to skull over right temporo parietal region. 3] Contused lacerated wound above right 9 eyebrow ,1” x 1/2” deep to skin. 4] Compound crush wound over occipital region, 4 ½ “ x 2” x deep to skull. 5] I/w over left ear lobule of eye, 1” x coupled with ear lobule, separated into two pieces. 6] Multiple contusion seen over left memmary region of eye 1/2” x 1/4” , 7-8 in numbers. 7] Multi0ple contusions over left lower extirty 4-5 in numbers. 8] Abrasion of eye, 1”x 1/2” oer right knee joint. 9] Contusion over right axilla, 3” x 1/2” . All the injuries were ante mortem. On internal examination he noticed following injuries - 1] Fracture of left fronto-parietal bond, 3” x 1”. 2] Fracture of right temporo-parietal bone 2” x 1/2”. 3] Fracture of occipital bone, 4”x 1” . In addition to these injuries there was haemotoma and contusion seen over frontal, parietal and occipital region corresponding to the external injuries. 10 As per the opinion of the doctor the cause of death of Ramesh was cardio respiratory failure due to haemorrhagic shock due to fracture of left fronto-parietal bone, fracture of right temporo-parietal bone and fracture of occipital bone. He had signed the postmortem notes Exh.115 . He has further stated that injury nos.1 and 2 coupled with the internal injuries, multiple blows must have been given to the deceased and such injuries were possible by heavy , hard and blunt objects ,whereas injury no.5 was possible by hard and sharp weapon. Internal injury nos.1,2 and 4 were individually sufficient in ordinary course to cause the death. 7] P.W.7, Dr.Arun Patil is a private doctor from Gurukrupa hospital,Bhiwandi. He stated before the Trial Court that on 4th May, 1997 three patients i.e. Ekanath, P.W. 1 ,Rama Raut P.W.3 and Maruti Bhagat P.W.2 were brought to his hospital . P.W.1 was brought from the municipal hospital and he had head injury with contused lacerated wound on the lip and there was perforating injury below his nose. He was admitted on 4th May, 1997 and was 11 discharged on 28th June, 1997. There was fracture of left side of occipital region and large haemotama . The patient was referred for C.T.scan . After report of C.T.scan report he noticed that there was fracture of left occipital region and small haemotama over frontal region. The doctor issued certificate under his signature at Exh.87. As per the doctor the injuries caused to P.W.1 could be possible by blunt and hard object such as iron rod and stick. He further stated that P.W.2 had sustained blunt trauma over chest , both shoulders , neck and both upper limbs. .He was under his treatment from 4th May to 10th May,1997. The injuries were possible with hard and blunt substance. He issued certificate Exh.88. He had also examined Ramabai, P.W.3 who had sustained head injury coupled with contused lacerated wound over frontal region of scalp. She had also received blunt injury on the chest,abdomen ,and back which could be possible by hard and blunt substance. She was under his treatment up to 15th May,1997 . He issued certificate at 12 Exh.89. As per the doctor injuries of all these patients could be within six hours and the head injuries were serious. 8] P.W.8, Gurunath Bhagat was the panch witness of the spot panchanama Exh.91. As per the same the incident of assault on P.W.1 had taken place in front of house of Shamibai when P.W.2 and 3 tried to rescue P.W.1 and the deceased was dragged from said place up to the house of Pandit, Vice Sarpanch ,dead body was thrown in the gutter and it was in bleeding condition. There were blood stains right from Shamibai’s house till the the spot near the house of Pandit . At the first spot two weapons i.e.one iron bar and one wooden stick were recovered and from the second spot stones which were used in smashing Ramesh were recovered. At the first spot little finger cut piece was also recovered and P.W.8 stated before the Court that it was little finger of accused no.5. He identified the same in the Court as well as pointed out accused no.5’s little finger was amputated. This witness was also a panch for the arrest panchanama Exh.93 which was drawn on 26th May, 1997 . 13 At the time of arrest accused no.7 was shown to have received injuries . 9] P.W.6 Jaynath Bhagat and P.W.9 Anant Ware are the panch witnesses for the recovery of weapons . Recovery panchanama Exh.81 indicates that one iron pipe of 5 feet in length was recovered from the house of accused no.3 at the instance of accused no.8 and recovery panchanama Exh.82 indicates that one wooden stick of 2’ 8” in length was recovered from the house of accused no.10 at his instance. The house of accused no.10 is beyond the house of P.W.1 in the same village . The recovery panchanamas Exh.97 and 98 were proved through the evidence of P.W.9 for the recovery of one stick at the instance of accused no.4 and one iron rod at the instance of accused no.9. In the evidence of P.W.6 recovery of sword at the instance of accused no.1 is proved in terms of recovery and memorandum panchanamas at Exh.83 and 84. All these recovered weapons were stained with blood and were sent for 14 chemical analysis alongwith the cloths which were recovered from the body of the deceased and seized from the accused after their arrest. The reports of chemical analyser were received at Exhs.101 to 104 . Blood group of the deceased could not be detected and seven weapons recovered were stained with blood of group ‘A’. It is also pertinent to note that some of the accused belong to blood group ‘O’ and other belong to blood group ‘A’ & ‘B’ . P.W.2 belongs to blood group ‘A’ , P.W.3 and P.W.4 belong to blood group ‘O’. 10] From the evidence of P.W.10 ,Dr.Sontakke it is clear that the deceased was mercilessly butchered during the incident and he died a homicidal death at the spot. The injuries sustained by P.W.1 were serious enough to cause his death if he was not treated. However, the State has not filed an appeal against the acquittal from the offence punishable u/s 307 r/w 149 of the Indian Penal Code against all the accused for the assault on P.W.1. 11] As per Mr.Mohite, the learned defence counsel, 15 the appellants were falsely implicated and as there was enmity between the two groups, the complaining part was led by the Police Patil had lodged false report against the accused. It was also submitted that accused no.7 had filed a complaint against the party of the Police Patil and at that time the said case i.e.C.C.No.88/96 was pending for trial in the Court of the learned II Jt.Judicial Magistrate, F.C.Bhiwandi. P.W.1 was accused no.1 alongwith his brother Vasant and two other persons in the said case and it resulted in an acquittal as per the order dated 30/3/1999 (Exh.129). As per Mr.Mohite the charge of unlawful assembly cannot be held to be proved against the accused having regard to the location of their houses as is clear from the map placed on record by the prosecution ,though it has not been referred in the impugned order of conviction and sentence. He also pointed out that in the oral testimony of five eye witnesses i.e. P.W.1 to P.W.5 majority of the accused have not been attributed to have used weapon or participated in the assault on any of the injured witnesses or the deceased. He, therefore, submitted that the prosecution case as regard to the 16 offence punishable u/s 302 r/w 149 of the Indian Penal Code is not sustainable and the learned Sessions Judge erred in convicting all the accused of the said charge. He also submitted that P.W.1 to P.W.3 are close relatives and their testimony was required to be examined with circumspection and care. It was pointed out by Mr.Mohite that even if the testimony of these five witnesses is considered , no specific role has been assigned to accused no.6,8 and 9 and vague allegations have been made against accused no.4,5 & 10 . Mr.Mohite therefore, urged that there is a good case of acquittal of these accused. In support of his contentions, he placed reliance on the following decisions. 1] Parsuram Pandey and others Vs.State of Bihar ,(2004)13 Supreme Court Cases ,189. 2] Nagarjit Ahir Vs. State of Bihar,(2005) 10 Supreme Court Cases,369 . 3] State of Punjab Vs.Sanjiv Kumar alias Sanju and others, (2007) 9 Supreme Court Cases, 791. 17 12] The learned A.P.P. on the other hand has supported the order of conviction in toto . He pointed out that the Trial Court had framed the charges in the alternate i.e. 302 r/w section 149 or 302 r/w section 34 of the Indian Penal Code . He submitted that the testimonies of P.W.1 to P.W.3 though they are closely related to each other , do not suffer from any exaggeration and it has been rightly relied upon by the Trial Court. He also submitted that P.W.4 and 5 are the independent witnesses on the assault on the deceased at the second place i.e.near the house of Pandit . These two witnesses are the residents of the very same village and known to the party of the complainant as well as the accused. They had identified the accused before the Court. The learned A.P.P. therefore, urged that the prosecution case is supported by the ocular evidence of these five witnesses and ,therefore, their conviction and sentence is required to be confirmed. He has relied upon the following decisions. 1] Jaswant Singh Vs.State of Haryana ,(2000) 4 Supreme Court Cases, 484. 18 2] State of Uttar Pradesh Vs.Sattan alias Satyendra and others , (2009) 4 Supreme Court Cases, 736. 13] In the case of Masalti Vs.Statte of U.P. AIR 1965 Supreme Court 202 the Supreme Court has laid down certain guidelines which are applicable in the instant case. It is stated that in a murder trial when an accused person stands charged with the commission of an offence punishable under S.302 , he stands the risk of being subjected to the highest penalty prescribed by the Indian Penal Code; and naturally judicial approach in dealing with such cases has to be cautious, circumspect and careful. It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all 19 material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box and the Court has to very carefully weigh such evidence. It would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses . Often though, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated . Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of 20 the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims . Where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims,it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. By referring to the earlier decision in the case of Baladin (S) AIR 1956 SC 181 the Supreme Court has further held that while dealing with the case of unlawful assembly the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly when the incident takes place in the village and a large number of people are claimed to be the members of the assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained 21 alongwith the other members of the assembly the common object as defined by section 141 and 142 of the Indian Penal Code. In other words , an assembly of five or more persons actuated by and entertaining one or more of the common objects specified by the five clauses of Section 141 of the Indian Penal Code is an unlawful assembly. 14] On the backdrop of these legal principles let us examine the evidence of the five eye witnesses relied upon by the prosecution in the instant case. As per P.W. 1 ,Ekanath , on receiving the message through Vasant he came to the spot at about 11 p.m. and while he was trying to pacify the accused party he received a blow on his lips by accused no.2 with iron rod and by accused no.3 with stick behind his head and above the neck . He admitted that he did not receive any bleeding injury and though accused no.1 was holding the sword. He fell unconscious and regained his consciousness in the hospital on the next day. Police inquired with him at 12 noon on 4th May, 1997 about the incident. He identified the sword , article-13, as well as the iron rods articles 2,7 and 11 and the wooden 22 stick ,articles 6,12 and 18 before the Court. These injuries described by P.W.7, Dr.Arun Patil at Exh.87 ,certificate issued by him. It would not be safe to accept that all these weapons were used by the accused only when it is proved that accused no.5 and 7 had also sustained bleeding injuries. This evidence of P.W. 1 has been supported by the deposition of P.W.2, Maruti . He stated , when P.W.1 arrived at the scene and enquired with the accused as to why they were abusing , accused no.2 had given blow with iron rod to him and accused no.3 assaulted him with a wooden stick . P.W.2 alongwith the deceased went to rescue him and accused nos.2 and 3 assaulted him , as a result of which ,P.W.1 ,Police Patil fell down and was taken to the hospital .This evidence is also consistent with the complaint lodged by P.W.2. P.W.2 further stated that when he and Ramesh attempted to rescue the Police Patil ,both of them were assaulted. He received two blows on his chest, and two blows on his back ,given by accused nos.2 and 3. Accused no.2 had given blow with iron rod ,whereas 23 accused no.3 has given blow with wooden stick. He had also seen that the accused were attacking Ramesh and he had sustained bleeding injuries. He returned to his house and the accused dragged Ramesh up to the house of Pandit. Ramabai, P.w.3, followed accused and raised hue and cry to save Ramesh. While he was sitting in his house, within ten minutes Ramabai returned and told him that Ramesh was killed by the accused . She also told him that Ramesh was assaulted with sticks,iron rods and stones