1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 541 OF 2010 IN CRIMINAL APPEAL NO OF 2010 The State of Maharashtra .. Applicant Vs Ramchandra @ Ram Nagnath Patil & Ors .. Respondents Mr. V.B. Konde-Deshmukh, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 17th June, 2010 P.C.: 1. The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 27.10.2009 passed by the learned Adhoc Additional Sessions Judge, Solapur in Sessions Case No. 170 of 2006. By the said judgment and order, the learned Sessions Judge acquitted the respondents - original accused nos. 1 to 17 of the offences punishable under Sections 147,148,149,302,307,341,504 and 506 r/w 34 of Indian Penal Code. 2. It is the prosecution case that on account of election appa541-10 2 for Gram Panchayat Wadgaon Shirpanhalli, there were strained relations between Ambanna Patil (deceased) and his relatives on one side and Arjun Kashid (accused no. 3) and Vimal Birajdar and their family on the other side. On 30.04.2006 at about 10.00 pm, Nagnath Sapale and Sanganna Patil were sitting by the side of the road at the outskirts of village Shirpanhalli. They heard some commotion, hence, both of then took torch in their hands and reached near the house of one Narayan. There, they saw Madiwallappa Patil (PW1), Virpaksha Patil (PW2), Suryakant Patil (PW3) and Meghraj Patil (PW15). Further they saw Ram Patil - accused no. 1, Arjun Kashid - accused no. 3, Narayan Kashid - accused no. 6 and Aba Kashid - accused no. 8 assaulting Ambanna Patil. Accused no. 3 - Arjun Kashid and accused no. 6 Narayan were armed with axe and accused no.1 - Ram Patil and accused no. 8 - Aba Kashid were armed with sickle. Accused no. 2 - Annarao, accused no. 4 - Somnath and accused no. 7 Avinash assaulted Ambanna Patil with sticks and the remaining accused persons had caught hold of Ambanna Patil. In addition thereto, accused no. 3 - Arjun gave axe blow on the head of PW1 Madiwalappa and accused no. 8 - Aba Kashid gave stick blow to PW2 Virpaksha Patil. Both Madiwalappa and Virpaksha sustained injuries in the incident. Due to the assault, Ambanna Patil sustained grievous injury and died on the spot. The complainant Virpaksha Patil (PW2) went to Valsang Police Station at about 04.00 a.m, and lodged appa541-10 3 his F.I.R. The injured were referred to the Civil Hospital, Solapur for examination and treatment and the dead body of Ambanna Patil was sent for postmortem. 3. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4. The defence of the accused is that because of rivalry between Ambanna Patil on one side and Arjun Kashid and Vimal Birajdar and their family on the other side, a false and concocted complaint was lodged against them. It is their further defence that at the time of incident, there was total darkness and as there was no light, in the commotion it could not be seen as to who were the actual assailants. It is their further defence that in the said commotion, some of the accused also sustained injuries. As far as accused no. 8 - Aba Kashid and accused no. 10 - Changdeo Kashid are concerned, they have also raised defence of alibi. To substantiate this defence, they have examined three witnesses appa541-10 4 i.e DW1 Sanjeev Malwad, DW2 Krishna Raut and DW3 Mandar Kulkarni. 5. The complainant in the present case is PW2 Virpaksha Patil. Though according to the prosecution, Virpaksha was injured in the incident, he has not supported the prosecution. Besides the complainant, PW1 Madiwalappa was also injured during the incident. He has also not supported the prosecution. Thus, it is seen that the complainant and the injured witnesses who have been examined have not supported the prosecution. Moreover, Panchas in relation to recovery of articles have also not supported the prosecution. 6. The learned APP submitted that despite the fact that the complainant and injured eye witnesses have not supported the prosecution, there are three eye witnesses i.e PW13 Sanganna Patil, PW14 Mahananda Patil and PW15 Meghraj Patil who have supported the prosecution. He submitted that they are witnesses to the incident and their evidence brings out the complicity of the respondents - original accused in the crime. As far as this aspect is concerned, it is noticed that the incident took place at about 10.00 pm in Village Wadgaon Shirpanhalli. Admittedly, there was no source of electricity at the spot of the incident. It was pitch dark. These witnesses have stated that whey they heard some appa541-10 5 commotion so they went to the spot with torches and they witnessed the incident. However, as far as, carrying of torch by these witnesses is concerned, it has been found to be an improvement in their evidence. It has also been brought on record that on the date of the incident i.e on 30.04.2006, from 12.00 noon to 12.00 midnight, there was no electricity in Village Shirpanhalli. Thus, from the evidence on record, it is clear that there was no light at the time of incident, hence, it would be difficult for witnesses to clearly see the incident. 7. It is the prosecution case that PW13 Sanganna Patil, PW14 Mahananda Patil and PW15 Meghraj Patil are eye witnesses to the incident. However, it is pertinent to note that none of their names have been mentioned in F.I.R. lodged by the complainant PW2 Virpaksha who is also an eye witness. From the F.I.R., it is clear that only names of PW1 Madiwalappa, PW3 Suryakant and PW4 Rajendra and the complainant is mentioned. None of these four witnesses i.e PW1, PW2, PW3 and PW4 have stated anything about the presence of any of these three witnesses at the spot or even near the scene of the incident. In fact PW1 Madiwalappa, PW2 Virpaksha have received injuries in the incident and were treated by the Doctor, therefore, their presence at the place of incident cannot be doubted. These two witnesses i.e PW1 and PW2 in appa541-10 6 their evidence have stated that they sustained injuries due to pelting of stones. As against this, PW13 Sanganna Patil, PW14 Mahananda Patil and PW15 Meghraj Patil have not received any injuries at the time of the incident which makes their presence at the time of the incident even more doubtful. 8. PW13 Sanganna Patil has deposed that at about 09.30 pm, he heard some noise of commotion coming from Zilla Parishad school, hence he along with PW6 Nagnath went to their house to bring torches and then proceeded towards the spot and saw the incident in torch light. It is to be noted that PW6 Nagnath has not supported this version of PW13 Sanganna. As stated earlier, the incident had occurred at 10.00 p.m., there was no source of electricity at the spot. It has also been brought on record that on the date of the incident i.e on 30.04.2006, from 12.00 noon to 12.00 midnight, there was no electricity in Village Shirpanhalli. This shows that there was no source of light at the time of the incident and thus, it must be pitch dark. Though there were houses on both sides of the road of the scene of incident,no person from those houses has been examined by the prosecution. Moreover, PW13 Sanganna has stated that his house is towards the west side of the road on boundary of village, hence he would require considerable time to go to his house to get a torch, to reach the place of incident and witness the appa541-10 7 incident. He has also admitted that the incident was not visible from the place where he was sitting. Thus, it appears improbable that this witness could have gone to his house, brought a torch and managed to see the incident. It is pertinent to note that the statement that he had a torch with him has come by way of improvement. In view of all these facts, we really doubt whether Sanganna really witnessed the incident. 9. Apart from the above, none of the injured witnesses mention the presence of PW13 Sanganna at the place of the incident. This witness has not sustained any injury at the time of the incident. It has also come in his evidence that when he reached the spot, at that time, PW2 Virpaksha, PW1 Madiwalappa and PW3 Suryakant were also present and some villagers were running here and there. From this it appears that, he came to the spot of the incident after the incident had occurred which becomes more clear from the fact that he has stated that PW1 Madiwalappa, PW2 Virpaksha and PW3 Suryakant narrated to him the said incident. 10. It is further to be noted that the statement of PW13 Sanganna was recorded by the Police on 02.05.2006 at about 11.00 a.m to 12 noon i.e two days after the incident. Till, then he did not disclose anything to the police. It has come appa541-10 8 in his evidence that he attended funeral of Ambanna who expired on 01.05.2006 but still, he did not inform about the incident to the Police. According to him, he disclosed about the incident for the first time to the Police on 02.05.2006 and to nobody else till then. The conduct on the part of this witness appears to be unnatural and abnormal, more particularly, when he is a close relative of deceased Ambanna and claims to be an eye witness to the incident. It has come on record that he was an elected member of Gram Panchayat and thus, he is not a rustic witness. Consequently, his conduct at the time of incident and particularly, thereafter and the delay in disclosure regarding the incident in spite of several opportunities and meetings with the police makes him a totally unreliable and untrustworthy witness. The evidence on record also shows that he was on cross terms with the accused i.e when he was the member of Gram Panchayat, he had signed a resolution in respect of deletion of names of the accused from the ancestral immovable property and consequent to the resolution, names of the accused came to be deleted from the concerned documents. We may also state that PW13 Sanganna has stated that Ambanna was assaulted on his back continuously by weapon. However, the medical evidence specially postmortem notes totally falsifies this aspect. In this view of the matter, we are of the opinion that the learned Sessions Judge was right in observing that it is appa541-10 9 unsafe to rely and accept the testimony of such interested witness. 11. As far as PW14 Mahananda is concerned, he has also attempted to testify in the same fashion as PW13 Sanganna. Her presence is also not mentioned by PW1 Madiwalappa, PW2 Virpaksha, PW3 Suryakant and PW4 Rajendra. It is also not mentioned in the F.I.R. lodged by PW2 Virpaksha. She has not stated as to how she could witness in such detail the incident as narrated by her in examination-in-chief about the role played by each of the accused, weapons used by each of them and injuries inflicted on which parts of the body of deceased and injured, without any source of light whatsoever. This witness also did not receive any injury at the time of incident. Her house is situated at Dhotri road which is far away from the spot of the incident and therefore, her presence on the spot is not natural. In cross-examination, this witness admitted that after hearing loud commotion, she and her husband went to the spot. When they reached the spot, she saw injuries on the head, forehead and on the body of Ambanna and those injuries were bleeding injuries. She stated that, Ambanna was not in a position to talk. This evidence shows that she had no occasion in the true sense to witness the incident, but she may have reached the spot when Ambanna was lying in an injured condition. From her appa541-10 10 evidence, we find that PW2 Virpaksha, PW1 Madiwalappa and PW3 Suryakant were already present at the spot when she reached there. She admits that when she saw Ambanna in injured condition, she got frightened. That time, her husband was accompanying her and her husband was present near the dead body of Ambanna throughout night. However, husband of PW14 Mahananda is not examined by the prosecution to corroborate her testimony. 12. It is pertinent to note that there is not even a whisper in the evidence of Mahananda about presence of PW13 Sanganna at the spot of incident. Even PW13 Sanganna has not said anything about presence of this witness during the incident. It has come in the evidence of Mahananda that, even after the incident, villagers had gathered at the spot, but she did not talk with them. She admits that after about 1 to 2 hours of the incident, police reached the spot, however, she did not have any talk with the police, though police were present till 05.00 a.m. and though she and her husband were present near the dead body of Ambanna. She stated that police were making enquiry with the villagers about the incident, still she did not disclose anything about the incident to the police. She admitted that she did not disclose about the incident to any person till her statement was recorded by the police. Her statement has been recorded a few days after the day of the incident. This conduct of appa541-10 11 witness Mahananda creates doubt regarding her credibility as an eye witness especially when she is a near relative of the deceased. If she had really witnessed the incident of murder, she would have immediately disclosed about the same to the police on their arrival in the village and also to others; but she did not. Non disclosure about the fact of incident and details thereof to police inspite of the fact that enquiry about the incident was going on at the spot, goes a long way to show that she has not witnessed any incident. We have also noted that she has admitted that joining hands by accused no. 3 Arjun Kashid and Vimal Birajdar with the opposite panel in the election of Sarpanch, leaving Ambanna Patil alone and becoming Vice Panch by Arjun Kashid was not liked by her. This may be the reason as to why she must have falsely deposed against the accused persons. 13. The evidence of PW15 Meghraj Patil is on the same lines as that of PW13. It suffers from the very same infirmities as that of PW13 Sanganna which we have already discussed in detail. We may also point out one important aspect which has emerged in his cross-examination. In his cross-examination, Meghraj admitted that he had no idea since when there was commotion. He further admitted that when he reached to the spot, there was confusion on the spot. At the time, when he appa541-10 12 reached the spot, he noticed that deceased Ambanna had bleeding injuries and he was lying near a ditch near house of one Narayan and Ambanna was not in a position to talk. It is also clear from the evidence of Meghraj that, prior to the time he reached the spot, his father PW3 Suryakant, so also, PW1 Madiwalappa and PW2 Virpaksha were already standing near Ambanna. It is thus clear that, he must have reached the spot of incident after the incident was over and when Ambanna was lying near the ditch in an injured condition. When PW1 Madiwalappa, PW2 Virpaksha and PW3 Suryakant who is the father of the witness i.e PW15 Meghraj claimed to have not seen the incident relating to murder of Ambanna, it is not worthy of acceptance that, this witness who reached subsequently at the spot had occasion to witness the incident much less witness the incident in detail and consequently, his testimony that the accused persons had assaulted Ambanna and others with deadly weapons, cannot be believed. It will not be out of place to note here that, this witness did not sustain any injury in the incident. Had he been present at the time of incident, he would have received some injury due to the throwing of stones or in the commotion. His conduct at the time of incident and after the incident also appears to be unnatural and it convinces us that he is a got up witness. Admittedly, he had no talk with villagers gathered at the spot which also makes his conduct unnatural appa541-10 13 and the fact that his statement is recorded belatedly, all these facts militate against the trustworthiness of this witness. 14. PW15 Meghraj further stated that till his statement was recorded on 02.05.2006, he has not disclosed anything to the police about the incident, though he had an opportunity to meet the police on 01.05.2006. Without any justifiable reason, he has not disclosed anything to the police that would speak about his unnatural conduct. Had he really seen the incident, he would have definitely informed the police on 01.05.2006 itself at the earliest opportunity and would have also informed the other villagers on the date of incident itself. All these circumstances, therefore, would rule out his presence at the place of the incident on the relevant day and time. It has come in his evidence that on the complaint of one Sonali Mane, who happens to be the relative of accused Kashid, he was prosecuted for an offence punishable under Section 354 of I.P.C. He denied the suggestion that accused Kashid was asked to withdraw the complaint of Sonali Mane but accused did not listen. It is further to be noted that his averment that when he rushed to the spot of incident, he was holding charging battery in his hand does not find place in his police statement. Thus, his appa541-10 14 evidence that he had a torch at the time of the incident is by way of an improvement. In the earlier paras, we have already discussed in detail the aspect of lack of light at the time of the incident. Thus, Meghraj has made a material improvement regarding the presence of torch light deliberately to show that he had an opportunity to see the the assailants. Looking to the evidence of this witness, we are of the opinion that it does not inspire any confidence. 15. We may also make reference to the evidence of PW16 Dr Tipanna Kambale who has conducted the postmortem. Dr. Kambale has stated that the alleged weapons recovered from the accused persons did not correspond with the nature of injuries found on Ambanna, indicating thereby, that the said weapons were not used at the time of the incident. According to Dr. Kambale, injury nos. 3 and 4 may be possible by sword. It is nobody's case that any sword was used in the incident. Thus, it is clear that the medical evidence also does not support the prosecution case. 16. In view of the above, we are of the opinion that the conclusion arrived at by the learned Sessions Judge that the prosecution has failed to prove the guilt of the accused by leading cogent, consistent, sufficient and reliable evidence appa541-10 15 is a reasonable and possible view. In view of above, application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appa541-10