1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.331 of 2000 Narendra @ Naresh @ Narya Bhaskar Jadhav .. Appellant versus The State of Maharashtra .. Respondent ... Mr.Abhay Kumar Apte for the appellant. Mr.F.R. Shaikh, APP for the state. A N D IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.636 of 2000 Pramod @ Pamya Hari Pacharane .. Appellant versus The State of Maharashtra .. Respondent ... Mr.B.G.Tangsali for the appellant. Mr.F.R. Shaikh, APP for the state. 2 CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & CORAM : Smt.Ranjana Desai & D.G. KARNIK, JJ D.G. KARNIK, JJ D.G. KARNIK, JJ DATED : 18th April 2006. DATED : 18th April 2006. DATED : 18th April 2006. ORAL JUDGEMENT :(Per Smt.Ranjana Desai,J) ORAL JUDGEMENT :(Per Smt.Ranjana Desai,J) ORAL JUDGEMENT :(Per Smt.Ranjana Desai,J) 1. Criminal Appeal No.331 of 2000 is filed by Naresh Bhaskar Jadhav @ Narya, original accused 2 (for convenience ’A2’) and Criminal Appeal no.636 of 2000 is filed by Pramod Pacharane @ Pamya, original accused 1 (for convenience ’A1’). Both A1 and A2 along with five others i.e. accused 3, 4, 5, 6 & 7 (A3, A4, A5, A6 & A7 for convenience) were tried in the Sessions Court at Kalyan in Sessions Case no.1302 of 1996 for offences punishable u/s.147, 148, 149, 302 and 307 of the IPC and in the alternative u/s.302, 307 r/w 34 of the IPC. They were also charged u/s.27(2) of the Indian Arms Act. 2. It would be advantageous to give the gist 3 of the prosecution case. One Satyawan Kondu Mhatre is the resident of Gauripada, Kalyan. He is residing there along with members of his family. His cousin Hainder Sardya Mhatre was residing nearby the house of Satyawan. Both were working in the Maharashtra State Electricity Board. About four years prior to 22.9.95 i.e. the date of incident, Satyawan and Hainder had assaulted A1 to A4 and A7. Admittedly, there was a rivalry between the accused on one hand and Satyawan and Hainder on the other hand. 3. On 22.9.95, Satyawan and Hainder left their home at about 8.00 a.m. Hainder was driving a scooter and Satyawan was on the pillion seat. At about 8.15 a.m, they reached Milind Nagar. While they were passing a hair cutting saloon, they heard cries as "dhara dhara". Satyawan looked behind. He noticed that A3, A4 and A7 armed with sticks and iron rods were chasing them. When they were near Buddha Vihar A1 and A2 and two others came from the front side. A2 was armed with sword,A1 was holding a revolver and unknown persons were holding daggers. A2 dealt blow of sword on the head of Hainder. Satyawan and Hainder fell down on the road. 4 According to the prosecution, A1 twice fired revolver aiming at Satyawan and Hainder. However, the bullets missed the targets. Rest of the accused started attacking Hainder with dagger, sticks and iron rod. As Satyawan was trying to stand up A2 dealt a sword blow on his person. Satyawan took it on the palm of his right hand. Satyawan received bleeding injuries. Thereafter, the accused ran away. Hainder was shifted to the hospital in the jeep of Yeshwant Bhoir brought by Satyawan. The medical officer examined him and declared him dead. Satyawan was examined and admitted in Shridevi hospital. The police visited the hospital and recorded the complaint of Satyawan which is at Exhibit 65. This complaint was treated as FIR. Investigation was started on the basis of this complaint. After completion of the investigation, the accused came to be charged as aforesaid. 4. In support of its case, the prosecution examined as many as 15 witnesses. The star witness of the prosecution is PW 1 Satyawan who was injured in the occurrence. The accused pleaded not guilty to the charge. According to the accused, they were falsely implicated. 5 5. After perusing the evidence on record, the learned Sessions Judge acquitted A3 to A7 of the offences punishable u/s.147, 148, 149, 302 and 307 of the IPC. He acquitted A1 and A2 of the offence punishable u/s.27(2) of the Indian Arms Act and of the offences punishable u/s.147, 148 and 149 of the IPC. He convicted A1 and A2 u/s.302 r/w 34 of the IPC and sentenced them to suffer imprisonment for life. A1 and A2 were also convicted of the offences punishable u/s.307 r/w 34 of the IPC and sentenced to suffer SI for 7 years each and to pay a fine of Rs.500/- each in default to undergo SI for two months. The substantive sentences were to run concurrently. This judgement is under challenge before us. 6. We have heard at some length, Mr.Abhay Kumar Apte, the learned counsel appearing for A2 and Mr.Tangsali, the learned counsel appearing for A1. We have also heard Mr.Shaikh, learned APP for the State. With the assistance of the learned counsel, we have gone through the evidence on record. 6 7. Mr.Tangsali, the learned counsel for A1 contended that conviction of A1 is totally unsustainable. He contended that it is alleged that A1 had used a revolver. However revolver is not recovered. There are no firearm injuries on the deceased or PW 1 Satyawan. Assuming that the prosecution story that bullets did not hit the target is true atleast the empties or cartridges ought to have been found at the scene of offence particularly when PW 1 Satyawan says that A1 fired twice. Mr.Tangsali pointed out that in the FIR PW 1 has stated that he was injured by bullets of a revolver. When he was confronted with this in the cross-examination he has stated that this statement in the FIR is erroneous. According to him, it is a mistake. Mr.Tangsali contended that it is clear from this that PW 1 Satyawan has created a false case against the accused. According to him PW 1 who belongs to the deceased’s camp has tried to involve A1 because there was enmity between the deceased and A1. 8. Mr.Tangsali contended that weapons of assault allegedly discovered at the instance of A1 7 are not the weapons which according to the prosecution were used by him and therefore, this alleged discovery cannot be used against him. Mr.Tangsali further contended that the alleged discovery is a fabricated discovery. PW 10 Pawar who is a pancha to the discovery panchnama has not identified A1 in the court. Therefore, this discovery is shrouded in suspicion. Mr.Tangsali contended that assuming this discovery is proved, in the absence of any other corroborative evidence to lend assurance to the prosecution case conviction cannot be based on it. 9. Mr.Tangsali further contended that even seizure of blood stained clothes from the person of the accused on 25.9.95 is doubtful. He submitted that it is inconceivable that the accused would be found wearing the same clothes 4 to 5 days after the incident. He submitted that the record indicates that after the incident A1 was staying with his in-laws at Padgha Ulhasnagar. It is impossible that A1 & A2 would not change their bloodstained clothes when they were staying with in-laws of A1. According to Mr.Tangsali the alleged seizure of clothes must therefore, be rejected. 8 10. Mr.Tangsali also pointed out that A1 has received injuries which is evident from his injury certificate which is on record. Mr.Tangsali contended that the prosecution has failed to explain the injuries sustained by A1 and therefore, adverse inference needs to be drawn against it. In this connection, he relied on the judgement of the Supreme Court in Laxmi Singh & Others Vs. State of Bihar AIR 1976 SC 2263. Mr.Tangsali contended that there is no credible evidence on record establishing the guilt of A1 and therefore, his conviction and sentence should be set aside. 11. Mr.Apte learned counsel appearing for A2 adopted and reiterated the submissions of Mr.Tangsali. He contended that the trial court has acquitted the other accused. Evidence of PW 1 Satyawan is not believed to that extent. There is therefore no guarantee that Satyawan is telling the truth when he is deposing about the involvement of the convicted accused. It is not safe to rely on his evidence. Mr.Apte contended that discovery of weapons at the instance of A1 cannot be used against A2. That evidence must therefore be discarded. 9 Mr.Apte submitted that there is thus absence of credible evidence against A2 and hence A2 should be acquitted. 12. Though the prosecution has examined three eye witnesses, the learned Sessions Judge has not placed any reliance on two of them. They are PW 3 Raghunath Mhatre and PW 4 Ganesh Mhatre. We will have to therefore keep this evidence out of consideration as we are of the opinion that the learned Sessions Judge has rightly not placed reliance on their evidence. The prosecution case therefore basically rests on the evidence of PW 1 Satyawan who was injured in the incident in question. Before we go to PW 1 Satyawan’s evidence, it is necessary to mention that there is no dispute about the fact that the relations between the accused and the deceased were strained. Pw 1 Satyawan and deceased Hainder had broken both the legs of A1 and hence, they were tried in the Sessions Court for that offence. There were also several other cases registered against the accused as well as PW 1 Satyawan and deceased Hainder. The learned Judge has therefore, rightly held that the prosecution has proved motive. 10 13. PW 1 Satyawan has stated that he and the deceased were proceeding towards their office as usual on 22.9.95. They left their house at about 8.10 a.m. The deceased was a pillion rider. They came to the area of Milind Nagar. They passed a hair cutting saloon and that time, he heard cries from behind. He looked behind and noticed A3, A4 and A7. A3 and A7 were armed with sticks and A4 was armed with iron bar. The accused were chasing them. He asked the deceased to increase the speed of the scooter but when they reached Buddha Vihar, he noticed A1 and A2 along with two unknown persons approaching from front side. A2 was armed with sword and A1 was holding revolver. Two unknown persons were holding daggers. A2 attacked on the middle part of the head of the deceased with the sword. Both of them fell down from the scooter. According to this witness as he was trying to stand up, A2 dealt a blow of sword on his person. It fell on the palm of his right hand. Thereafter, A1 fired the revolver twice towards him and the deceased. However, the bullets did not hit them. According to this witness, he had sustained bleeding injury on his hand between thumb and first finger. He was 11 trying to overpower A1 and A2. At that time, two unknown persons attacked him with dagger and inflicted blow of dagger on his left elbow and left armpit anterior. At that time, A3, A4 and A7 reached the spot and they also started assaulting them and in that scuffle, A1 was hit with a dagger on his left cheek. This witness then ran from the scene of offence. According to him, he went to the rationing shop of Shaliq Mhatre. Shaliq Mhatre was present in the shop. He informed him about the incident and asked him to report the matter in the village. He then went to the house of Rohidas Mhatre. He took Rohidas to the scene of offence. At the scene of offence, he noticed PW 3 Raghunath Mhatre, PW 4 Ganesh Mhatre and Maruti Mhatre. Thereafter by an auto rickshaw, he went to Purnima police outpost along with Rohidas. One police constable was on duty at the police outpost. He told him about the incident and requested him to visit the spot. Accordingly, the police accompanied him to the spot. On the way, they visited the office of PW 5 Yeshwant Bhoir. From there the constable rang Mahatma Phule Chowk police station and reported the matter. Then they came to the scene of offence in the jeep of Yeshwant Bhoir. 12 They shifted the deceased into the jeep. Then he along with PW 5 Yeshwant Bhoir, Rohidas Mhatre, PW 4 Ganesh Mhatre and Maruti Mhatre proceeded to K.M.C. Hospital, Kalyan. The medical officer examined the injured and declared him dead. The medical officer treated PW 1 Satyawan. Thereafter, he was admitted in Sridevi Hospital, Kalyan but as X-ray machine was not available there, he was sent to Gurudev Hospital for X-ray. After his X-rays were taken, he again went to Sridevi Hospital. The police visited the hospital, recorded his statement which is at Exhibit 65. The said statement was treated as FIR. 14. The evidence of this witness was assailed by the learned counsel Shri Apte and Shri Tangsali basically on the ground that though the witness says that after the incident he went to the shop of Shaliq Mhatre; that he met Raghunath Mhatre, Sitaram Mhatre, Ganesh Mhatre according to him he did not tell the names of assailants to them. According to him, he also went to the office of Yeshwant Bhoir. He did not inform the names even to Yeshwant Bhoir. At the Purnima police outpost, he met one police constable. According to him, he reported the incident to him and requested him to 13 visit the scene of offence. But surprisingly he did not give the names of the assailants even to the police constable. It is his case that his statement came to be recorded at the hospital by the police at 12 noon on the same day. The learned counsel contended that this conduct is unnatural and makes the testimony of this witness suspect. If he had seen the incident, his first reaction would have been to inform the names of his assailants to people whom he admittedly met after the incident and also to the police constable whom he requested to visit the scene of offence. If the incident had taken place at about 8.15 am in the morning, four hours delay in lodging the FIR according to the learned counsel is fatal to the prosecution. It was urged that obviously four hours time was taken by the police to concoct a false case against the accused. It was pointed out that even the learned Sessions Judge has partly disbelieved this witness. The learned Sessions Judge has acquitted all the other accused though this witness has in his evidence tried to involve them. 15. It is true that since all the other accused have been acquitted what PW 1 Satyawan has stated 14 has not been accepted by the learned Sessions Judge in its entirety. The question is what is the effect of this on the prosecution case so far as the appellants are concerned. It is well settled that testimony of a witness can be partly believed. Merely because some of the accused are acquitted and to that extent evidence of a prosecution witness is found unacceptable, the testimony of the witness need not be discarded in toto. If it is found that so far as the other accused are concerned, the witness is telling the truth, reliance can be placed on that part of his evidence. If the court finds that the substratum of the prosecution case has not given way because of some inconsistencies in the evidence of such witness, other accused can be convicted on the basis of his evidence. It is only if the evidence of a witness contains glaring discrepancies can he be described as a wholly unreliable witness. 16. PW 1 Satyawan was a pillion rider of the scooter driven by the deceased. He is an injured witness. Therefore, his presence at the scene of offence can hardly be doubted. PW 7 Dr. A. Neeraja had examined PW 1 Satyawan at the KMC 15 hospital, Kalyan. She found seven external injuries on his person. She has stated in her evidence that the injuries suffered by Satyawan could be caused by hard and cutting object. She has described the injuries suffered by PW 1 Satyawan as follows :- 1. Incised would over left lateral side of the elbow joint measuring around 5x3x2 cms fresh bleeding was present 2. Incised would over left axilla just 3 cms below arm bit measuring around 3 cm x 1 1/2 cm x 1/2 x cm fresh bleeding was present. 3. Abrasion over right fact of thumb measuring around 4 cm x 1/8 cm x 1/10 cm. 4. Incised would over posterior part of the left shoulder measuring around 2x1x1/8 cms fresh bleeding was present. 5. Abrasion over back of the scapular 16 area right side measuring around 6 cm x 1/10 cm x 1/8 cm and fresh bleeding was present. 6. Abrasion over back over lumbarregion around 7 cm x 1/8 cm x 1/10cm and fresh bleeding was present. 7. Abrasion was over front of right thing 6 cms below hip joint measuring around 8 cms x 4 cms x 2cms. 17. It is true that normally PW 1 Satyawan was expected to disclose the incident to all the people he met immediately after the incident and also to the police constable at the Purnima outpost but non disclosure of the incident to these people in the facts of this case, in our opinion, is not fatal to the prosecution case. There is an admitted enmity between the two sides. It is possible that PW 1 Satyawan was frightened and had no courage to disclose the incident to others. PW 6 Vilas Kathore police constable who was on duty at the Poornima police outpost has stated that PW 1 17 Satyawan was in a frightened state when he came to the police outpost. It appears to us that he was so traumatised by the ghastly incident that he ran from one person to other, and then went to the scene of offence in a jeep, shifted the deceased to the hospital and got himself admitted in the hospital. Injuries quoted in the preceding paragraph make it evidence that he must be in pain and distress. Being an injured person, his anxiety must have also been to get himself treated by a doctor. He must be pre-occupied by the need to get medical help for himself. He also ensured that the deceased was taken to K.M.C hospital. The deceased was declared dead. The Medical Officer at the K.M.C hospital treated PW 1 Satyawan and thereafter he was admitted in Sridevi hospital at Kalyan. As X-ray machine was not available, he was taken to Gurudev hospital. At Gurudev hospital, his X-rays were taken and then he was taken back to Sridevi hospital and then at Sridevi hospital his statement came to be recorded. Considering the circumstance in which he was placed if he had not disclosed the names of the assailants to the people that cannot be taken against him. It appears that initially even the police concentrated on giving medical help 18 to him. He was shifted from one hospital to another and it is only after his X-rays were taken that he was taken back to Sridevi hospital and there his FIR was registered. This sequence of events in our opinion also explains why there is some delay in recording the FIR. In the facts of this case, we do not think that the delay of about 4 hours in recording the FIR suggests that police were in the meantime trying to give shape to the prosecution story. These submissions are therefore rejected. 18. It was argued by Mr.Apte that in the FIR lodged by PW 1 Satyawan, there is an erasure and name of A2 appears to have been added subsequently. We find no substance in this submission. It is true that there is some erasure but from that we cannot conclude that A2’s name has been subsequently added because even prior to the alleged erasure, PW 1 Satyawan has referred to the involvement of A2. Mr.Apte is therefore not right when he says that A2’s name has been subsequently inserted in the FIR. So far as involvement of A2 is concerned, we find no difficulty in accepting the evidence of PW 1 Satyawan. We however feel 19 that the prosecution has not established its case against A1. We shall give our reasons for this conclusion 19. Seizure of clothes is sought to be proved through the evidence of pancha PW 10 Lalchand Pawar and investigating officer PW 15 Dy.S.P. Kanade. The relevant panchnama in this connection is the arrest panchnama Ex.88. According to the prosecution A1 & A2 were arrested at village Padgha in Ulhasnagar on 25.9.95. On their arrest, clothes on their person were seized. Panchnama Ex.88 was drawn. The clothes were blood stained. The Chemical Analyser’s report states that the blood was human. Whether this seizure can be relied upon or not needs to be examined. The incident had taken place on 22.9.95. A1 & A2 were arrested on 25.9.95. The question is whether they would move around with the same blood stained clothes on their person for three days. Ex.115 is a letter sent by Police Inspector Crime Branch, Thane to Sr.PI Mahatma Phule Chowk. This letter states that information was received by the police that A1 & A2 are residing with the in-laws of A1 at Padgha in Ulhasnagar. Acting on this information the police 20 apprehended them in Padgha. If A1 & A2 were staying with the in-laws of A1, surely they would change their blood stained clothes. It is inconceivable that A1 & A2 would move around with blood stained clothes on their person so that they could be easily arrested by the police. This seizure is therefore doubtful. We find it difficult to place reliance on it. 20. The prosecution has also relied on discovery of weapons at the instance of A1. In this connection evidence of PW 15 Dy.S.P. Kanade and PW 10 Lalchand Pawar is material. PW 15 Dy.S.P. Kanade has stated that on 25.9.95 while in police custody A1 made a voluntary statement that he will show the weapons of assault hidden by him at Kalyan. Accordingly, he led the police and the panchas to a hut near the railway line at Kalyan Syndicate. From the roof of the hut, he took out one knife and one sword. They were stained with blood. The memorandum and panchnama in this connection are at Ex.90 and 89 respectively. The Chemical Analyser’s report states that on these weapons there was human blood of ’O’ group. Blood group of the deceased is ’O’. Blood group of A1 21 and A2 is ’B’ and that of PW 1 Satyawan is ’A’. 21. So far as this discovery is concerned PW 10 Lalchand Pawar has no doubt supported the prosecution, but in the court he could not identify A1. But assuming that by placing reliance on the evidence of PW 15 Dy.S.P. Kanade, this discovery can be held to be proved, it is not the case of the prosecution that A1 used any of the weapons allegedly discovered by him. So appreciable value of this discovery gets reduced. If this discovery is held to be proved, it may not be a totally inoccuous circumstance so far as A1 is concerned. But by itself it will not be sufficient to book A1. There must be sufficient other evidence on record to indicate his involvement which in our opinion is wholly lacking in this case. This discovery does not further the prosecution case against A1. 22. So far as A2 is concerned discovery of weapon at the instance of A1 can never be used against him. This position is well settled in law. In Mathur Dhana Vs. State AIR 1956 Bombay 393, the appellant therein made a statement in the presence of the panchas that he and his brothers had buried 22 the dead body and that he