In the context of describing the incident in graphic details by
the witnesses, the Hon’ble Apex Court in the case of Sakharam (supra) observed that when not less than 23 persons participated in commission of offence with deadly weapons and attacked more than 4 to 5 persons with an intention to kill them, then the witnesses, who are closely related to the victims and who are also themselves the subject of assault, cannot be expected to describe the incident in graphic detail and with such precision as to which member and in what manner he participated in the commission of offence. When a simultaneous attack is made on several persons by several assailants, in that melee if the witnesses try to specify the role of each of the accused, then it could be called as unrealistic. {Para 42}
43. In case of Lakshmi Singh (supra) the Hon’ble Apex Court observed that when the incident was witnessed by the independent eye witnesses, the prosecution could have examined any of these witnesses to corroborate the version of the interested witnesses examined by the prosecution. It is further held that the evidence of prosecution witnesses show that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gives an impression that they have given a parrot-like version acting under a conspiracy to depose to one set of facts and one set of facts only. It is further observed that initial dispute was between only two of the accused and other accused persons, who were not even remotely concern, have been introduced by way of embellishment in the case at the instance of injured witnesses.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 559 OF 2018
Komal Babusingh Ade, Vs The State of Maharashtra,
CORAM : SUNIL B. SHUKRE &
PUSHPA V. GANEDIWALA, JJ.
PRONOUNCED ON : FEBRUARY 02, 2022.
JUDGMENT (PER : PUSHPA V. GANEDIWALA, J.)
All these Appeals against conviction, preferred under Section
374 of the Code of Criminal Procedure Code, 1973, are directed against
the judgment and order dated 10/08/2018 passed by the I/c. Additional
Sessions Judge, Mangrulpir (Camp at Washim) in Sessions Trial No.
44/2014, whereby the learned Judge convicted the appellants for the
offences punishable under Sections 302, 307, 147 and 148 read with
Section 149 of the Indian Penal Code ("IPC").
2. The appellants/ accused are acquitted of the offences
punishable under Section 120B of the IPC and Section 135 of the Bombay
Police Act (now 'the Maharashtra Police Act, 1951’) ("Act of 1951").
Accused No. 16 - Babusingh Ramji Rathod and accused No.
17 - Sadashiv Limbaji Jadhao are acquitted of all the offences punishable
under Sections 302, 307, 147 and 148 read with Section 149 of the IPC.
For the offence punishable under Section 302 read with
Section 149 of the IPC, the appellants/ accused are sentenced to suffer
imprisonment for life and fine of Rs.3,000/- each, in default, to suffer
simple imprisonment for one year.
For the offence punishable under Section 307 read with
Section 149 of the IPC, the appellants/ accused are sentenced to suffer
rigorous imprisonment for 7 years and fine of Rs.2,000/- each, in
default, to suffer simple imprisonment for one year (three counts).
For the offence punishable under Section 147 of the IPC, the
appellants/ accused are sentenced to suffer rigorous imprisonment for
one year and fine of Rs.500/- each, in default, to suffer simple
imprisonment for one month.
For the offence punishable under Section 148 of the IPC, the
appellants/ accused are sentenced to suffer rigorous imprisonment for
two years and fine of Rs.500/- each, in default, to suffer simple
imprisonment for two months.
All the aforementioned sentences are directed to run
concurrently. The appellants/ accused have been given set-off for the
period for which they were in jail.
The facts in brief, leading to the filing of the present Appeals,
may be stated as under :-
3. In all 23 accused persons were tried before the Additional
Sessions Court, Mangrulpir. In the incident of rioting, Devidas, his son
Mukesh and nephew - Ganesh received injuries, while the son of
Devidas, by name Avinash, succumbed to the injuries received to him.
4. As per the prosecution story, on 18/03/2014, on the eve of
Holi festival, Devidas along with his two sons by name Avinash and
Mukesh, had been to the house of his elder brother to take blessings of
his mother (grandmother of Avinash and Mukesh). The accused
Janardhan was playing DJ in front of the house of the elder brother of
Devidas during 'fagwa’ celebration. As the grandmother of the Avinash
was not keeping well, Avinash asked Janardhan to stop playing DJ.
There was a trivial quarrel between them. Thereafter, playing of DJ was
stopped. At around 4:00 pm, when Avinash along with his brother
Mukesh, father Devidas and cousin Ganesh started to go to their house
at Naik Nagar by a car, no sooner than they reached and alighted from
the car, the accused persons caught hold of them and assaulted all the
four by weapons like iron pipes and wooden planks. It is alleged that
some of the accused caught hold of the victims of assault and some
accused were instigating to assault. In the said assault, Avinash
succumbed to the injuries received to him, whereas Mukesh, Devidas
and Ganesh were seriously injured.
5. The information about the aforesaid incident was reached
Police Station - Manora. PI. Mr. Shankar Laxman Donkalwar along with
the staff proceeded to the spot of the incident and found four persons
smeared with blood lying in front of the house of Janardhan. The injured
were shifted to the hospital. On the same day, Avinash was declared
dead.
6. On the report of Nirmalabai (PW19) - mother of Avinash,
crime for the offences punishable under Sections 302, 307, 147, 148 and
149 of the IPC and Section 135 of the Act of 1951 was registered vide
Crime No.38/2014 dated 18/03/2014 (Exhs. 509 and 510) against 21
persons. In the presence of panchas, spot panchanama (Exh. 428) was
carried on. Spot of the incident was shown by Nirmalabai. Simple earth
and blood-stained earth came to be seized and sealed (Exh. 429). The
said articles were deposited in Maalkhana as property No. 14/2014.
7. A.P.I. Mr. Nachankar performed inquest panchanama on the
dead body of Avinash and sent the body for autopsy. On the basis of
supplementary statement of the informant, two more accused, Accused
No. 16 - Babusingh Ramji Rathod and accused No. 17 - Sadashiv Limbaji
Jadhao (both acquitted of all the offences) came to be added to the
crime. The statements of the injured witnesses and the eye-witnesses
came to be recorded. All the accused persons came to be arrested in due
course. Blood stained clothes of some of the accused persons were also
seized. The weapons, used by the accused persons, came to be seized vide
memorandum and recovery panchanama under Section 27 of the
Evidence Act. Seized articles and blood samples of the accused persons
were sent for forensic report. After carrying out all other formalities of
investigation, chargesheet came to be filed against 23 accused in the
Court of the Judicial Magistrate First Class, Manglurpir. The learned
Magistrate in his turn committed the case to the Sessions Court as the
offence of murder is exclusively triable by the Court of Sessions.
8. The Additional Sessions Judge, Mangrulpir, framed charge
against the accused persons for the offences punishable under Sections
120B, 147, 148, 149, 302 and 307 read with Section 149 of the IPC and
Section 135 of the Act of 1951. The charge was read over and explained to
the accused in their vernacular and their pleas were recorded separately.
The accused persons denied the charge and claimed to be tried. Their
defence is of total denial and false implication.
9. To substantiate the charge against the accused, the
prosecution examined in all 29 witnesses. Out of these witnesses, three
are injured witnesses (PW2 Mukesh, PW10 Devidas and PW13 Ganesh),
three are eye-witnesses (PW9 Dnyaneshwar, PW14 Vijay and PW19
Nirmalabai), six are medical witnesses (PW20 Dr. Rehman, PW21 Dr.
Gote, PW24 Dr. Ramteke, PW25 Dr. Varsha, PW26 Dr. Gadpal and
PW29 Rathod - staff nurse) and six are police personnels (PW1 P.C. -
Thakre, PW16 H.C. - Kolhe, PW17 P.C. - Murkute, PW23 I.O. -
Domkalwar, PW27 H.C. - Jagtap and PW28 I.O. - Ingale). The other
witnesses are the panch witnesses for spot panchanama, recovery
panchanama, inquest panchanama and seizure panchanama. One nodal
officer (PW22) from BSNL was also examined.
10. The learned trial Court recorded the statements of the
accused under Section 313 of the Code of Criminal Procedure and called
upon the accused to adduce evidence. Accused Nos, 1, 2, 3, 9 to 15, 17, 18
and 21 filed their common written statements below Exh. 725 and stated
that both the accused and the victims belong to the 'Banjara' community
and are residents of Village - Manora, District - Washim. The father of
accused Janardhan, i.e., Ramdhan Rathod earned great respect in
'Banjara' community. During Zilla Parishad Elections, 2013, Ramdhan
Rathod did not support the candidature of the injured Devidas, and
therefore, Devidas had to withdrew his candidature. Hence, Devidas and
his family were keeping grudge against Ramdhan Rathod and his family.
It is further stated that on 18/03/2014, Devidas Chauhan,
along with his two sons Avinash and Mukesh, nephew Ganesh and 10-12
unknown persons attacked on the house of Ramdhan Rathod with sticks
in their hands. During the attack, Ramdhan Rathod, Janardhan Rathod,
Gowardhan Rathod, Kuldeep Pawar and Duryodhan Rathod received
various injuries. While the people in the locality rushed to save these
persons in that scuffle Devidas, Avinash, Mukesh and Ganesh received
injuries. It is stated that the accused persons have not assaulted these
persons.
11. Accused Dnyaneshwar Rathod, Vishwanath Jadhav, Bandu
Jadhav, Kisan Goverdhan Ade, Komal Babusingh Ade, Madhukar
Pradhan and Milind Chauhan, in their separate written statements, have
admitted the occurrence of the incident of playing of DJ at Somnath
Nagar. They stated that Mukesh initiated the quarrel on this tenuous
issue. The DJ was stopped immediately, as the sound of the DJ was
intolerable to the grandmother of Mukesh. These accused denied the
second incident of riots, and claimed that a false report was filed and the
witnesses have deposed falsely against them. They state that nothing has
been recovered from these persons.
12. The appellants examined three private medical witnesses in
support of their defence to buttress the fact that Devidas and three
others attacked on the house of Ramdhan Rathod and sustained injuries
to the appellants.
13. The learned trial Court, on appreciation of oral and
documentary evidence and considering the submissions made on behalf
of both the parties, recorded the finding of conviction against the
appellants and awarded sentence in the aforesaid terms. This judgment
of conviction is challenged by the convicts in these six Appeals.
14. We have heard Mr. Avinash Gupta, learned Senior Counsel
assisted by Mr. R.K. Tiwari, learned counsel, Mr. Akash Gupta, learned
counsel (in Criminal Appeal Nos. 559/2018, 560/2018, 561/2018 and
562/2018), Mr. A.M. Jaltare, learned counsel (in Criminal Appeal No.
570/2018) and Mr. R.M. Daga, learned counsel (in Criminal Appeal No.
576/2018) for the appellants, Mr. S.S. Doifode, learned APP for the State
and Mr. C.S. Dharmadhikari, learned counsel to assist the prosecution.
15. It is to be noted here that out of 23 accused persons, who
faced trial for the aforesaid offences, accused No.16 - Babusingh and
accused No.17 - Sadashiv came to be acquitted of all the offences. It is to
be further noted here that one of the accused by name Arjun Komal Ade,
since juvenile, case against him was not tried by the Sessions Court.
16. It is further worthwhile to mention here that the accused/
appellants have not been prosecuted independently for the substantive
offences punishable under Sections 302 and 307 of the IPC. They were
tried for these offences, being members of an unlawful assembly with
common object of the assembly to perpetrate deadly assault on the
victims with an intention to commit murder and attempt to commit
murder.
17. In order to establish the guilt against the accused, the
prosecution mainly relied on the testimonies of three injured witnesses
and three eye-witnesses amongst other witnesses. Insofar as the
testimonies of these witnesses are concerned, it is pointed out on behalf
of the appellants that they are almost identical and have given graphic
descriptions with respect to the names of all the accused persons (23 in
number), role played by each of the accused, the nature of weapon used
by each of the accused, the names of the accused who were holding and
who were assaulting the victims, the part of the body where the injuries
were inflicted etc.
18. The learned Senior Counsel Mr. Avinash Gupta raised a
doubt on the testimonies of these witnesses as it is humanly impossible
to give graphic details of the incident by the injured witnesses when as
per the prosecution story, all the four victims of the incident were being
assaulted simultaneously by the appellant/accused. The learned Senior
Counsel further submitted that there are several improbabilities in the
prosecution case and as such, it cannot be believed. The learned Senior
Counsel Mr. Gupta, so also the learned counsel Mr. R.K. Tiwari
appearing for the appellants strenuously argued that the testimonies of
these witnesses would reveal that all these witnesses have given a parrotlike
version and the role attributed to each of the appellant is almost
identical. It is submitted that it is next to impossible that all these
witnesses would remember the sequence in which all the accused have
assaulted the deceased and the other injured victims in an identical
manner. It is therefore submitted that no reliance could be placed on the
testimony of such injured and eye witnesses. Reliance is placed on the
judgment of the Apex Court in the case of Lakshmi Singh and others
vs State of Bihar, 1976 AIR SC 2263 and the judgment of the
Coordinate Bench of this Court in the case of Mohd. Hanif, Mohd.
Azam, Mohd. Ansar, Mohd. Irfan, Mohd. Amir vs State of
Maharashtra through its Police Station Officer, 2017 (2) BCR
(Cri) 541.
19. The learned Senior Counsel Mr. Gupta further pointed out
certain other facts from the record to buttress his submission as to how
the testimonies of the injured and eye witnesses are not reliable, which
we propose to deal with in the later part of this judgment.
20. The learned counsel Mr. R.M. Daga for accused has also
argued on the similar lines as Senior Counsel Mr. Avinash Gupta.
21. Mr. Jaltare, learned counsel for accused No.4, through his
oral and written arguments submitted that the evidence tendered by the
prosecution witnesses is highly unreliable and are not worthy of
credence. The prosecution witnesses are interested, and their conduct
does not inspire confidence. He further submitted that the evidence of
the eye-witnesses is full of material omissions. Accused No.4 was not
present at the time of first incident, and therefore, he had neither
intention nor motive to participate in the assault. The learned trial Court
ought to have appreciated that the dispute at Somnath Nagar was
resolved, and therefore, there was no occasion for the accused, residing
at Somnath Nagar, to pick-up a quarrel after a time gap of 4-5 hours and
to go to Naik Nagar, Manora. He further submitted that the oral
testimony of the injured witnesses, with regard to the injuries, are not
supported by the medical evidence. The statements of the alleged eyewitnesses
have been recorded belatedly. He further submitted that as per
the testimony of the medical witness Dr. Kiran (PW20), the injured
persons were conscious, and therefore, it belies the version of the
prosecution witness that since they were unconscious, their statements
were recorded belatedly. Lastly, the learned counsel submitted that the
prosecution has miserably failed to prove its case against this accused,
and therefore, he is entitled to be acquitted.
22. Learned A.P.P. Mr. S.S. Doifode appearing for the
respondent - State while supporting the impugned judgment and order
of conviction, submitted that all the three injured witnesses i.e. PW2
Mukesh, PW10 Devidas and PW13 Ganesh and all the three eyewitnesses,
i.e., PW9 Dnyaneshwar, PW14 Vijay and PW19 Nirmalabai
have consistently supported the prosecution case. Mr. Doifode took us
through the relevant parts of their testimonies so also the documents
and submitted that their testimonies are mutually corroborated. They
have given all the minute details of the incident. The learned A.P.P.
further submitted that merely because the version given by them is
identical cannot be a ground to discard their testimony altogether. Mr.
Doifode further submitted that merely because the witnesses are related
to each other and are interested witnesses also cannot be a ground to
discard their testimonies. It is further submitted that the weapons used
for commission of the offence, i.e., iron pipes and wooden planks have
been recovered from the appellants. Mr. Doifode further submitted that
the statements of injured witnesses were not recorded at an earlier point
of time, as the injured witnesses were admitted in the hospital. In
support of his submissions, the learned A.P.P. relied on the following
judgments :-
1. Bhagwan I. Marked vs State of Maharashtra,
AIR 2016 SC 4531 on the point of evidentiary value of the
injured eye-witness and on vicarious liability.
2. Masalti vs State of UP, 2008 ALL SCR (OCC) 52
on the point the witnesses are relatives cannot be a ground to
discard their testimony and if a large crowd of persons
armed with weapons assaults the intended victims, it may
not be necessary that all of them have to take part in the
actual assault.
3. State of Maharashtra vs Ramlal, 2015 ALL SCR
3436 on the point that evidence has to be weighed and not
counted.
4. Sakharam vs State of Maharashtra, 2016(1)
Bom. C.R. (Cri.) 117 on the point that where eye-witnesses
account is found credible and trustworthy, medical opinion
pointing to alternative possibilities is not accepted as
conclusive.
5. Indersing vs State of Rajasthan, 2015 ALL SCR
881 on the point that non-explanation of injuries on the
person of accused are not fatal and in absence of plea of self
defence, it cannot be presumed that accused persons
sustained injuries in course of same occurrence and at same
place. In order to sustain conviction atleast three witnesses
should be in position to name individual accused person.
6. Jodhan vs State of M.P., 2015 ALL SCR 2491 on
the point of evidence of injured witnesses are on higher
pedestal.
23. With the assistance of the learned A.P.P. as well as the
learned counsel for the appellants, we have scrutinized the entire
evidence on record.
24. In the instant case, the prosecution examined in all 29
witnesses. Out of these witnesses, as stated earlier, there are three
injured witnesses and three eye-witnesses. The testimonies of these
witnesses with regard to the incident of assault as pointed out by the
learned counsel for the appellant are almost identical. It is the settled
principal of law that even if the testimony of a solitary witness is found to
be trustworthy, cogent and the one which inspires confidence of the
Court, conviction on the basis of the same could be rested. It is equally
settled that merely because the witnesses are relatives cannot be a
ground to discard their testimony (Masalti vs State of UP (supra)). It
is also well settled that the testimonies of the prosecution witnesses,
before their acceptance must be tested on established parameters of
appreciation of evidence and one has to guard against any attempt to put
up an exaggerated or concocted story. As for example, when witnesses
make parrot-like statements, add improbabilities and impossibilities and
so on, their testimonies are least likely to inspire confidence of the Court.
Ultimately, all depends upon facts and circumstances of each case.
25. It is also well settled that (Eknath Ganpat Ahir & Ors. vs
State of Maharashtra, 2010 6 SCC 519) in the case of group
rivalries and enmities, there is a general tendency to rope in as many
persons as possible as having participated in the assault and in such
situations, the Courts are called upon to be very cautious and sift the
evidence with care.
26. In the case of Masalti vs State of UP (supra) it is held that
where a crowd of assailants who are members of unlawful assembly
proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants.
27. On carefully scrutinizing the testimonies of PW2 Mukesh,
PW10 Devidas, PW13 Ganesh and three eye witnesses, it can be seen that
they are almost identical and there could hardly be found any
dissimilarity in their versions. 23 accused have been roped in this
offence. These accused are related to each other and are members of
total four families. The genesis of the crime lies in the trivial quarrel
between appellant Janardhan Rathod and Milind Chavan on one side
and deceased Avinash and injured Ganesh (PW13) on the other side. The
reason for such petty quarrel is playing of DJ by the accused Janardhan
in front of the house of one of the victims (Ganesh) in Somnath Nagar.
The incident of assault was after four to five hours of the first incident of
DJ playing. First incident occurred at Somnath Nagar while the incident
of assault took place at Naik Nagar, Manora, which is at a distance of 2
½ kilometers from the place of the first incident. Considering all these
facts one can say that the offences have been committed on an expansive
canvass containing too many characters and colours. With such a
backdrop to the scene of crime, it becomes all the more difficult for all
witnesses to depose in a manner as would match with each others
versions word to word. But, this is a reality here and it creates a whole lot
of doubt about prosecution story, the core argument of the learned
counsel for the appellants is also with regard to the identical and parrotlike
versions given by the prosecution star witnesses. In order to see the
commonality and in order to assess the trustworthiness of the
testimonies of these witnesses, it would be useful to refer to the relevant
part from their testimonies. For ready reference, the relevant parts with
regard to the occurrence of incident of assault are reproduced below.
28. PW2 Mukesh Devidas Chavan (injured eye-witness).
“(14) I along with my father Devidas Chavan, Avinash
Chavan and cousin Ganesh started for Naik Nagar resident
in our Vista car. We stopped near our Naik nagar residence.
As soon as we alighted from our car, all the accused caught
hold us and dragged us in front of house of accused
Janardhan Rathod. Accused Vinod Haridhan Rathod and
Ravi Tulshiram Rathod had held me. Accused Gowardhan
Rathod and Arun Ramlal Pawar had held my father.
Accused Ashok Ramlal Pawar, Kuldeep Ramlal Pawar had
held my brother Avinash. Manohar Tulshiram Rathod, Dilip
Dalsing Rathod and Pradip @ Dhotya Babusing Rathod had
held my Cousin Ganesh. Along with all persons who had held
us other person took us in fort of house of accused
Janardhan Rathod. In front of house of accused Janardhan
Rathod all accused started beating us from weapons, they
were having. At that time accused were having iron pipes,
iron bars and wooden planks. Accused Janardhan Rathod,
Duryodhan Rathod, Milind Chavan, Komal Babusing Ade,
Bandu Fakira Jadhav, Vishwanath Fakira Jadhav,
Ramdhan Rathod were having iron pipes. Accused Arjun
Komal Ade was having iron bar. Accused Dnyaneshwar
Babusing Rathod, Madhukar Bhoju Chavan, Shivram Bhoju
Chavan, Sudhakar Shivram Chavan, Kisan Gobara Ade,
Fakira Sitaram Jadhav were having wooden planks.
Accused Duryodhan Rathod, Milind Chavan, Ramdhan
Rathod, Janardhan gave beating on the head of my brother
Avinash by iron pipes. Due to beating the head of my brother
Avinash was soaked in blood. Due to beating my brother fell
down near cement slab in front of house of accused
Janardhan Rathod. Accused Komal Babusing Ade and
Bandu Fakira Jadhav beat my father Devidas on head and
face with iron pipe. Accused Madhukar Bhoju Chavan beat
my father on head and hands with wooden planks. Due to
beating head of my father had broken, and eye of my father
has come out of eye socket and all the teeth had come out due
to beating. The witness volunteers that some teeth had come
out. Due to beating my father fell down to the ground.
Accused Vishwanath Fakira beat me on head by iron pipe.
Accused Dnyaneshwar Babusing Rathod and Fakira
Sitaram Jadhav beat me with wooden planks on my head,
feet, hands and on my knees. I was soaked in blood totally. I
fell down to the ground. Accused Arjun Komal Ade beat my
cousin Ganesh Chavan by iron bar and accused Fakira
Sitaram Jadhav beat my cousin Ganesh with wooden planks.
Accused Fakira Sitaram Jadhav beat my cousin Ganesh on
his hands and feet. Due to beating, Ganesh was soaked in
blood and he fell down. Accused Sudhakar Shivram Chavan,
Kisan Gobra Ade and Shivram Bhoju Chavan were inciting
other accused and they were saying “Mara Mara”. Those
accused were beating us with wooden planks. Accused Ashok
Ramlal Pawar and Kuldip Ramlal Pawar had held my
brother and inciting other accused by saying “Mara Mara”.
Accused Gowardhan Haridhan Rathod and Arun. Ramlal
Pawar had held my father and were inciting by saying
“Mara Mara”. Accused Vinod Haridhan Rathod and Ravi
Tulshiram Rathod had held me and others inciting by saying
“Mara Mara, jivane marun taka”. Accused Manohar Tulsing
Rathod, Dilip Dalsing Rathod and Pradip @ Dhotya
Babusing Rathod had held my cousin and were inciting
others. Due to beating my brother was lying dead on the
spot. …….…”
29. PW10 Devidas Dudhram Chavan (injured eye witness).
“(3) At about 4.00 p.m. we started for Naik Nagar from
Somnath Nagar in our Indica Car. We had started for our
house at Naik Nagar. The distance between Somnath Nagar
to Naik Nagar is about 2 to 2.5 k.m. After reaching Naik
Nagar we stopped our car near our home. After stopping our
Car at Naik Nagar, we all opened all the four door of the car
and alighted from the car. As soon as we alighted from the
Car, all accused surrounded us. Each one of us was caught
hold by two persons. All accused dragged us to the house of
Janardhan. Avinash was caught hold by Kuldeep Pawar and
Ashok Pawar. Mukesh was caught hold by Vinod Rathod and
Ravi Rathod. Ganesh was caught hold by Manohar
Tulshiram Rathod. Dilip Dalsing Rathod and Pradip @
Dhotya Jadho. The accused Janardhan Rathod, Vishwanath
Jadhao, Bandu Jadhao and Komal Rathod were having iron
pipes. Accused Madhukar Chavan, Dnyaneshwar Rathod,
Fakira Jadhao, Kisan Ade, Sudhakar Chavan and Shivram
Chavan were having wooden planks. Accused Arjun Ade was
having iron bar.
(4) After being taken upto the house of Janardhan,
accused persons started beating us. Accused started beating
us by the weapons in their hands. Avinash was beaten by
Janardhan Rathod, Duryodhan Rathod, Milind Chavan and
Ramdhan Rathod. They beat Avinash by iron pipes on his
head. I was beaten by Bandu Jadhao, Komal Ade and
Madhukar Chavan. I was beaten by iron pipes by Bandu
Jadhao and Komal Ade on my head, face, hands, back and
chest. I was beaten by Madhukar Chavan by wooden plank
on my head. Mukesh was beaten by Vishwanath Jadhao by
iron pipe on head. Mukesh was beaten by Dnyaneshwar
Rathod on head and knees by wooden plank. Ganesh was
beaten by Arjun Ade by iron bar on his head. Ganesh was
beaten by Fakira Jadhao by wooden plank on his head.
Fakira Jadhao also gave blows to Mukesh. Shivram Chavan,
Sudhakar Chavan and Kisan Ade were having wooden
planks and they were inciting others and also giving blows.
All three accused were beating all four of us and were
inciting others. While being beaten Avinash was caught hold
by Kuldeep Pawar and Ashok Pawar. While I was being
beaten I was caught hold by beaten, he was caught hold by
Vinod Rathod and Ravi Rathod and inciting others. While
Ganesh was being beaten, he was caught hold by Manohar
Rathod, Dilip Rathod and Pradip @ Dhotya Jadhao. Since
Avinash was beaten on his head. He died on the spot. Due to
the blows on his hand. Avinash was smeared in blood. I
sustained injuries on my head, face, jaws and my hands. Due
to the blows on my jaws, my teeth were dislocated. Due to the
beating, my eye-ball had come out from the eye socket. Due to
the beating my hand was fractured. I also sustained injuries
on my chest and back. Since I sustained injuries on my jaw,
blood was oozing out from there. I also sustained injuries on
my feet. Due to the blows on his head Mukesh was smeared in
blood. Due to the blows on his head, Ganesh was smeared in
blood. due to the beating, I fell-down to the ground and
became unconscious. Due to the beating Avinash fell-down to
the ground and died. Thereafter, when I regain my
consciousness I was at Ikon hospital, Akola................"
30. PW13 Ganesh Ramvilas Chavan (injured eye witness)
“(3) At 4.00 p.m. I alongwith my uncle Devidas, cousins
Mukesh and Avinash started for Naik Nagar from Somnath
Nagar in white Indica Car of my uncle Devidas Chavan. After
reaching to Naik Nagar we alighted from the Car near the
residence of my uncle Devidas Chavan. I alongwith my uncle
Devidas Chavan and my cousins Mukesh and Avinash
alighted from the Car. As soon as we alighted from the car,
all accused surrounded us. At that time, they were having
iron pipe, iron bar, wooden planks Janardhan Rathod,
Duryodhan Rathod, Milind Chavan, Ramdhan Rathod,
Vishwanath Jadhao, Bandu Jadhao, Komal Ade were having
iron pipes Arjun Ade was having iron bar. Madhukar
Chavan, Shivram Chavan, Sudhakar Chavan, Kisan Ade,
Dnyaneshwar Rathod, Fakira Jadhao were having wooden
planks. They took us to the house of Ramdhan Rathod by
catching, pulling and dragging all four of us. I was caught
hold by Manoj Rathod, Dilip Rathod and Pradip Jadhao. I
also know Manoj Rathod as Manohar Rathod. (The witness
identified the accused Manoj Rathod) Avinash was caught
hold by Kuldeep Pawar Bandu @ Ashok Pawar Mukesh was
caught hold by Vinod Rathod and Ravindra Rahod. My uncle
Devidas Ade, Sudhakar Chavan and Shivram Chavan were
having wooden planks. Kuldeep Pawar and Bandu Pawar
had caught hold and were instigating by saying "ekjk] ekjk] ;kauk
ftokus ekjk-" Also other accused who had caught hold were also
inciting by saying "ekjk] ekjk] ;kauk ftokus ekjk-" Gowardhan
Rathod, Arun Pawar, Vinod Rathod, Ravindra Rahod,
Pradip Jadhao, Dilip Rathod and Manohar Rathod were
inciting by saying "ekjk] ekjk] ;kauk ftokus ekjk-" We were beaten on
the incitement of other accused after taking us to the house of
Janardhan. Arjun Ade beat me on my head by iron bar.
Fakira Jadhao beat me by wooden plank on my legs and
hands. Due to the beating, my head was torn; I was smeared
in blood and fell-down to the ground. Janardhan Rathod,
Duryodhan Rathod, Milind Chavan and Ramdhan Rathod,
Duryodhan Rahod, Milind Chavan and Ramdhan beat
Avinash by iron pipe on his head. Due to the beating, his head
was torn and he was smeared in blood and he fell26
down.Vishwanath Jadhao beat Mukesh by iron pipe on his
head. Dnyaneshwar Rathod beat Mukesh by wooden plank
on his head and legs. Fakira Jadhao was beating Mukesh and
me by wooden plank on hands and legs Due to that, Mukesh
head was torn and he fell-down and was smeared in blood.
Bandu Jadhao and Komal Ade beat Devidas with iron pipe on
his head, face and back Madhukar Chavan beat Devidas by
wooden plank on his head and hands. Due to that Devidas fell
to the ground and his head and face were torn and smeared
in the blood. I felt that Avinash was dead on the spot."
31. PW9 Dnyaneshwar Devising Rathod (eye witness).
"(1) The incident is of 18/03/2014. The incident happened at
4.00 p.m. The incident happened when I was passing in front
of the house of accused Ramdhan for my work. At that time, I
was going to Sarkate Saheb for taking information about field
lake. Sarkate was residing at Naik nagar. Sarkate Saheb was
an Agriculture Officer. I was intending to go to the house of
Devidas Chavan, after my work was over at Sarkate Saheb's
resident. When, I was passing all accused were running to the
house of Devidas Chavan and they were going by the side of
me. All accused were following and running behind the car of
Devidas, Mukesh, Avinash and Ganesh Devidas Mukesh,
Avinash and Ganesh alighted from the car. As soon as
Devidas, Mukesh Avinash and Ganesh alighted from the car,
all accused caught hold them and brought them in front of the
house of accused Ramdhan by dragging, pushing and pulling,
Avinash was caught hold by Kuldeep Ramlal Pawar and
Ashok Ramlal Pawar. Mukesh was caught hold by Vinod
Haridhan Rathod and Ravi Tulshiram Rathod. Devidas was
caught hold by Gowardhan Haridhan Rathod and Arun
Ramlal Pawar. Ganesh was caught hold by Manohar
Tulshiram Rathod, Dilip Dhansing Rathod and Pradeep
Babusing Jadhao, The persons who had caught hold Devidas,
Avinash, Mukesh and Ganesh shouted "ekjk] ekjk] ;kauk ftokus ekjk"
and they starting beating them with from pipes, iron bars and
wooden planks. Avinash was beaten by Duryodhan,
Janardhan, Milind and Ramdhan by iron pipes. Avinash was
beaten by above mentioned four accused on head and Avinash
was smeared in blood and he fell on the ground. Devidas was
beaten by accused Bandu Jadhao, Komal Ade by iron pipes
and Madhukar Chavan by wooden plank. Accused Bandu and
Komal beat Devidas on his head, face, legs, hands and chest.
Due to the beating Devidas was drenched in blood and
Devidas felled to the ground. Mukesh was beaten by accused
Vishwanath, Fakira Jadhao and Dnyaneshwar Rathod and
Fakira Sitaram Jadhao. Accused Vishwanath beat Mukesh by
iron pipe on his head. Accused Dnyaneshwar gave blow on
the hands, feet, knees and head of Mukesh by wooden plank.
Accused Fakira Jadhao gave blow to Mukesh by wooden
plank.
(2) Accused Arjun Komal Ade gave blow to Genesh by iron
bar on the head. Accused Fakira Sitaram Jadhao gave blow to
Ganesh by wooden plank. Ganesh felled down to the ground
due to the blows on his head and feet. Due to the beating
Ganesh head was injured. Accused Sudhakar Shivram
Chavan, Kisan Gobra Ade, Shivram Bhoju Chavan were
shouting "ekjk] ekjk" and they were also giving blows to all four.
Due to the beating Mukesh fell down to the ground and he was
drenched in blood. At the time of beating, Avinash was being
held by Kuldeep Ramlal Pawar and Bandu Ramlal Pawar. At
the time of beating of Devidas, accused Gowardhan Haridhan
Rathod and Arun Ramlal Pawar had held Devidas and were
shouting "ekjk] ekjk". At the time of beating of Mukesh, accused
Vinod Haridhan Rathod and Ravi Tulshiram Rathod had held
Mukesh and were inciting by saying "ftokus ekjk". At the time of
beating of Ganesh he was held by accused Manohar
Tulshiram Rathod, Dilip Dhansing Rathod and Pradeep
Babusing Jadhao and were inciting by saying "ekjk] ekjk". Due
to the beating all four felled down to the ground. Avinash fell
down to the ground and died near the Rafta "jkQVk" in front of
the house of accused Janardhan and other three were lying
down near the D.P. After that all accused ran away from the
spot............"
32. The other two eye witnesses PW14 Vijay and PW19
Nirmalabai (the informant) have also deposed in the same fashion as
deposed by the aforesaid witnesses.
33. A moot question that arises for consideration of this court is
as to how far the testimonies of these witnesses are reliable? A careful
comparison of testimonies of these witnesses would reveal that all these
witnesses have taken the names of all the appellants. In one voice they
have stated that accused Janaradhan Rathod, Duryodhan Rathod, Milind
Chavan, Komal Ade, Bandu Fakira, Vishwanath Jadhao and Ramdhan
Rathod were holding iron pipes. Accused Arjun Ade (juvenile) was
holding iron bar. Accused Dnyaneshwar Rathod, Madhukar Bhoju
Chavan, Shivram Bhoju Chavan, Sudhakar Chavan, Kisan Ade, and
Fakira Jadhao were holding wooden planks. They have taken names of
accused Sudhakar Shivram Chavan, Kisan Gobra Ade, Shivram Chavan
for their role to incite the other accused ("ekjk]ekjk") to assault the victims
so also they were beating with wooden planks.
34. All these witnesses have identically deposed that accused
Vinod Rathod and accused Ravi Rathod were holding Mukesh, accused
Gowardhan Rathod and accused Arun Pawar were holding Devidas,
accused Ashok Ramlal Pawar and Kuldeep Pawar were holding Avinash
while accused Pradip Rathod, Manohar Rathod and Dilip Rathod were
holding Ganesh. They have not attributed any role to them in carrying of
any weapons and it seems that it has been done quite thoughtfully just to
create a show of truthfulness of their version, while forgetting the fact
that all the witnesses have deposed in almost identical fashion, without
moving an inch away from each other, which is an unnatural conduct for
the human beings. When one incident involving several persons is
witnessed by several persons, it is well-nigh impossible for the witnesses
to match each other’s testimony word by word and version by version
but this is happened here.
35. With regard to injuries to head of the deceased Avinash,
these witnesses have testified that Duryodhan Rathod, Milind Chavan,
Ramdhan Rathod and Janardhan Rathod assaulted Avinash on his head
with iron pipes. The postmortem report of the deceased Avinash shows
that he had sustained one laceration of size 2X4 cm over the scalp with
internal damage. Though PW21 Dr. Gote, who performed the
postmortem examination says that one injury is possible if the deceased
is repeatedly assaulted on head by four persons provided all the blows
should land on the same site, the learned defence counsel has rightly
pointed out that it was impossible that when four persons were
continuously assaulting and giving repeated blows on the head of the
deceased by different weapons, all the blows land on the same site. In
this context, the learned trial Court in the impugned judgment has
observed that witnesses have the general tendency to tell the incident
with exaggeration and embellishment. That is true. However, in this case
the trial Court is dealing with the offence of murder. There are 23
accused involved with the charge of murder. The genesis of the crime
was the quarrel on the issue of playing of DJ between Avinash and
Janardhan Rathod. Not only the family of Janardhan Rathod has been
involved but all his relatives, who have no connection with the alleged DJ
incident also have been implicated in the crime, attributing each of them
with a specific role. The facts and circumstances reveal that a lot of home
work has been done to see that none of the accused escapes from the
charge levelled against him and it is also revealed that the elder brother
of injured Ganesh (PW13) who was in police department posted as Police
Inspector was guiding them.
36. With regard to injuries to Devidas, all these six witnesses
deposed that Gowardhan Rathod and Arun Pawar were holding Devidas
while Komal Babusing Ade and Bandu Jadhao assaulted Devidas with
iron pipes on his head, face, hands, legs and chest. Madhukar Chavan
assaulted Devidas with wooden plank on his head. The learned Senior
Counsel Mr. Avinash Gupta pointed out the discrepancies in the
deposition of the injured eye-witnesses and the medical evidence. It is
urged that both the injured witnesses, i.e., Mukesh (PW2) and Devidas
(PW10) deposed that an eyeball of Devidas came out of the eye-socket,
while clinical findings of Devidas, at Exh.529 dated 19/03/2014, shows
that his eyeball movement was normal.
It is further urged that as per the testimony of Mukesh
(PW2), teeth of Devidas were dislocated, however, the spot panchanama
doesn’t mention noticing any teeth on the spot of the incident. These
discrepancies in the facts and circumstances of the present the case is
vital in nature which cannot be lightly brushed aside.
37. With regard to injures to Mukesh, all these six witnesses
deposed that Vinod Rathod and Ravi Rathod were holding Mukesh while
Vishwanath assaulted Mukesh with iron pipe on his head, Dnyaneshwar
and Fakira assaulted Mukesh with wooden plank on his head, feet and
knees.
38. With regard to injuries to Ganesh, all these six witnesses
identically deposed that accused Pradip Rathod, Manohar Rathod and
Dilip Rathod were holding Ganesh while Arjun Ade assaulted Ganesh
with iron bar on his head while Fakira Jadhao assaulted Ganesh with
wooden plank on his hands and feet.
39. These witnesses further deposed that all the accused persons
who were holding the injured witnesses and deceased Avinash were
inciting others for beating.
40. It is the contention of the learned Senior Counsel
representing the appellants that the identical version with regard to each
and every minute detail of the incident by these witnesses is itself
sufficient to come to the conclusion that the prosecution has concocted
one story and accordingly FIR came to be prepared and the statements
of witnesses have been recorded. In this context, the learned defence
Counsel has rightly pointed out that the First Information Report is
ante-dated on the ground that there is a material inconsistency between
the carbon copy of the FIR (Exh. 629) which was sent to the Magistrate
and the original copy of the FIR (Exh. 510) which is brought on record.
The prosecution witness No.23 has clearly admitted that Exh. 629 is not
the carbon copy of Exh. 510 and there is no plausible explanation from
the side of the prosecution on this aspect. The defence counsel also
pointed out the printed FIR wherein the genesis of the incident is
mentioned as “due to collection of fagwa” while FIR (Exh. 510) reveals
genesis of the crime is playing of DJ. Considering the other evidence on
record, this part of the evidence would unerringly suggest that the FIR is
an ante-timed and ante-dated document.
41. The learned defence counsel also harped on the aspects of
delayed recording of statements of witnesses, glaring lacunae in handling
the seized muddemal, all the eye witnesses and the panch witnesses are
relatives, brother of injured witness Ganesh is in police department on
the post of police inspector who was accompanying witnesses during
trial. It is further submitted that the prosecution has failed to examine
any independent eye witness even though as per prosecution story the
incident had occurred in Naik Nagar, a residential locality and crowd had
gathered.
42. In the context of describing the incident in graphic details by
the witnesses, the Hon’ble Apex Court in the case of Sakharam (supra) observed that when not less than 23 persons participated in commission of offence with deadly weapons and attacked more than 4 to 5 persons with an intention to kill them, then the witnesses, who are closely related to the victims and who are also themselves the subject of assault, cannot be expected to describe the incident in graphic detail and with such precision as to which member and in what manner he participated in the commission of offence. When a simultaneous attack is made on several persons by several assailants, in that melee if the witnesses try to specify the role of each of the accused, then it could be called as unrealistic.
43. In case of Lakshmi Singh (supra) the Hon’ble Apex Court
observed that when the incident was witnessed by the independent eye
witnesses, the prosecution could have examined any of these witnesses
to corroborate the version of the interested witnesses examined by the
prosecution. It is further held that the evidence of prosecution witnesses
show that they gave graphic description of the assault with regard to the
order, the manner and the parts of the body with absolute consistency
which gives an impression that they have given a parrot-like version
acting under a conspiracy to depose to one set of facts and one set of
facts only. It is further observed that initial dispute was between only
two of the accused and other accused persons, who were not even
remotely concern, have been introduced by way of embellishment in the case at the instance of injured witnesses.
44. In the instant case, in somewhat similar circumstances, the
prosecution involved the accused from four families, i.e., Rathod, Ade,
Chavan and Jadhao. Although, the initial dispute is of a petty nature
35
between Janardhan Rathod and Milind Chavan on one side and
deceased Avinash and Ganesh on the other, all the accused persons who
were even not the residents of Naik Nagar - the place where the alleged
incident of riots occurred, have been roped in. Not a single independent
witness has been examined by the prosecution even though the spot of
the incident is Naik Nagar, a residential locality and there was a crowd of
people seen on the spot when police reached the spot immediately after
the incident. The identical and parrot-like version of all the star
witnesses of prosecution would raise a strong doubt about the
truthfulness of their testimonies. It is an admitted fact that brother of
injured Ganesh is in Police Department on the post of Police Inspector
and it is also brought on record that he visited the Court along with
witnesses.
45. The informant of the incident PW19 Nirmalabai is the wife of
injured Devidas and mother of deceased Avinash and injured Mukesh. It
is improbable for the wife and the mother who claimed to have witnessed
the incident to observe and remember each and every minute detail of
the incident and report the same to the police. We can imagine the
mental condition of a mother who is also a wife, witnessing the incident
wherein both of her son and her husband were being assaulted by a mob
36
of 20 to 25 people holding iron pipes and wooden rods. As per
prosecution story, the beating to all the four victims were going on
simultaneously. How could Nirmalabai have observed the incident of
attack by a mob of 20-25 persons on four persons at a time. Not only
Nirmalabai, the injured witnesses Mukesh, Devidas and Ganesh who
were allegedly being assaulted simultaneously, could not have witnessed
the assault on their companion by the accused and that too with such
minute details. It is like victims were not defending themselves but
observing as to who is assaulting whom and with which weapon and the
organ of the body. It is sheer an impossible story concocted by the
prosecution which just cannot be believed and which also does not
appeal to the reason. Had it been a case of one witness deposing with
such minute details, it may have been believed presuming his extraordinary
capacity of observing the things and recollecting the same. But
here is the case of six witnesses including the injured witnesses. In case
of an injured witness, there may not have been any difficulty in believing
his testimony as to assault on him. But, when other injured persons who
were subjected to assault simultaneously also start telling about the
attack on others in similar words, a serious doubt creeps in prosecution
evidence and it becomes difficult to believe the prosecution evidence,
without corroboration from independent witnesses. Here, no
37
independent witnesses have been examined though they were available.
So, these witnesses cannot be relied upon.
46. Considering the nature of the evidence brought on record, it
is difficult to comprehend as to what exactly had happened on the spot.
The defence of the appellant that the victims in order to take revenge of
the old political rivalry, entered the house of Janardhan and attacked, in
the aforestated facts and circumstances of the case, appears to be
probable, especially in the light of the fact that, the spot panchnama does
not show the presence of four wheeler on the spot and there is absolutely
no evidence as to what has happened to the Indica car of the victims. The
cross- examination of the injured eye-witnesses would reveal that the
witnesses have given contradictory versions as regards the order in
which the injured had collapsed on the ground. Detailed prosecution
evidence, on this aspect of the matter, may not be necessary in ordinary
course of circumstances. But here it is significant as the victims of the
assault are giving in their respective testimonies graphic details of the
assault not only on their own person but also on the person of the other
victims and they are also stating that they collapsed on ground losing
their consciousness and therefore in order to test the veracity of their
38
versions, it would be necessary to know as to in which order each of them
fell down on the ground in unconscious state.
47. This Court in the case of Mohd. Hanif (supra) in the
similar facts and circumstances reproduced the relevant parts from the
testimonies of witnesses in paragraphs 15 to 18 of the judgment and
observed that all these four witnesses have come with totally identical
version insofar as the role played by each of 11 accused is concerned and
that too in the very same sequence. The Court noted that as per the
prosecution case, these four witnesses have witnessed the incident from
four different places. The Court placed reliance on the observations of
Their Lordships of the Apex Court in the case of Lakshmi Singh
(supra) which is reproduced below :-
"10. These are the only witnesses who have proved the
participation of the five appellants in the assault. No
independent witness has been examined by the prosecution to
support the assault. In fact P. W.1 Ramji Singh has admitted
that when he reached the place of occurrence he found 6 to 7
persons of the village and yet none of them have been
examined to corroborate the evidence of the interested or
inimical witnesses examined by the prosecution. Moreover the
evidence of P.Ws. 1 to 4 clearly shows that they gave graphic
description of the assault with regard to the order, the manner
and the parts of the body with absolute consistency which
gives an impression that they have given a parrot-like version
acting under a conspiracy to depose to one set of facts and one
set of facts only......"
39
48. After noting the aforesaid observation of the Hon'ble Apex
Court, this Court observed that all the four witnesses have given graphic
description of the assault with regard to the order, the manner and the
parts of the body with absolute consistency. The Court further observed
that the testimony given by the witnesses gives an impression that they
have given a parrot-like version acting under a conspiracy to depose to
one set of facts and one set of facts only. The Court also noted the
observations made by Their Lordships of Apex Court in the case of
Rambilas and others vs State of Madhya Pradesh, AIR 1997 SC
3954, which is reproduced below :
".......If we compare the evidence of these eye-witnesses it is
immediately noticed that their evidence is just like a parrot,
telling about what is taught. Even the omissions,
contradictions and improvements are identical. The claim of
these eye-witnesses is totally unbelievable when they testified
that they had gone to the place of occurrence........"
49. This Court further noted the observations of Their Lordships
in the case of Dharam Singh and others vs State of Punjab, AIR
1993 SC 319, which is reproduced below :-
".........However, as noted above the statement of each
witness is verbatim the same as that of others.
Contradictions and omissions are the same. Narrations and
sequence of events are meticulously in the same order.
Therefore, we think it is not safe to place reliance on the
evidence of these witnesses."
40
50. This Court further noted the other grounds in addition to the
ground of puppet-like version for not relying the testimony of those
witnesses. The Court noted the conduct of prosecution witnesses,
absence of any enmity of the deceased with the accused, delay in
recording of statement of witnesses. The Court also noted the delay in
seizure of blood stained clothes of the accused, the discrepancy in the
carbon copy and the original copy of FIR etc.
51. Apart from above noted identical evidence given by the
prosecution witnesses and lack of corroboration, in the instant case,
there are also other glaring lacunae in the prosecution case which have
been brought on record during cross examination of the witnesses. The
First Information Report (Exh. 510) was lodged by mother of the
deceased Nirmalabai (PW19) immediately after the incident giving
graphic details of the incident. Here, the conduct of Nirmalabai, mother
of Avinash and Mukesh and wife of Devidas is worth noting.
Immediately after the incident she has given the names of 21 accused
persons, nature of weapons held by each of them, the name of the
accused holding the victim, as to on which part of the body the assault
was made etc. She also deposed about the presence of other three
witnesses, i.e., Vijay, Dnyaneshwar and Jaipal. However, interestingly in
41
cross-examination she expressed her ignorance as to whether the
neighbours were watching the incident while the incident was going on.
She has admitted that there are six houses near her home and she has no
quarrel with them and has good relations with them. In further crossexamination
she has stated that she had no talk with Vijay (PW14),
Jaipal and Dnyaneshwar (PW9) while the beating was going on. She has
further admitted at the time of incident, Vijay (PW14,) and Dnyaneshwar
(PW9) were not present but they were coming. She stated that after the
incident she was weeping and she did not ask her three relatives to go to
injured and inquire with them. She further deposed that she did not feel
like seeing her husband and sons, when they were taken to the hospital.
She said first she had to lodge report and she did not want to see the
health of her persons hence she did not go there. She further admitted
that it did happen that instead of seeing the health of injured she felt the
spot of panchanama should be shown to Police. She deposed that when
she showed the spot of incident to the Police she had not shown the
vehicle to the Police. Her such evidence is against a background of
situation of emergency which demands unwavering attention of a person
like mother and wife first to that emergency. Her son, Avinash had been
pronounced dead; her husband and another son, as per her own version,
were critically injured requiring emergency medical treatment, and here
42
is a woman who first gathers the facts of the incident in her mind, goes to
the Police Station, lodges the First Information Report ignoring her dead
son and critically injured husband and son who were taken to the
hospital and on top of it says that she did not wish to see the health
condition of her husband and sons. This conduct is unnatural and
further deepens the doubtful nature evidence of core prosecution
witnesses.
52. A perusal of the aforesaid testimony of the informant
Nirmalabai, as rightly pointed out by the learned Senior Counsel Mr.
Avinash Gupta, is against the natural human conduct. It is very strange
that when she was weeping, she could give each and every minute detail
of the incident. And at the same time she could not see as to whether
neighbours were watching the incident. She felt it necessary to lodge FIR
first and then to inquire the health of her sons and husband. She felt it
necessary to first show the spot of incident and then to go to the hospital
to see her near and dear. Considering her conduct, her presence at the
spot and witnessing the incident is doubtful. Interestingly, the original
FIR also does not match with its carbon copy which was sent to the Court
of Magistrate. Moreover, there is nothing on record as to what has
43
happened to the four-wheeler Indica Car by which all the four victims
allegedly arrived at the spot.
53. The Chemical Analyzer’s reports for the articles like clothes
and weapons seized during investigation and produced on record by the
prosecution cannot be relied on for the simple reason that evidently, the
articles were not sent in sealed condition for forensic examinations and
the office of FSL has also refused to accept the unsealed articles. The
Trial Court has rightly refused to rely on this part of prosecution
evidence. The positive CA reports are crucial corroborative evidence in
favour of prosecution in any criminal trial, however, the sanctity of the
same, at every stage of the process, has to be established beyond
reasonable doubt, which is not the case here.
54. PW9 Dnyaneshwar Rathod is a chance witness, who
happened to be on the spot at the time of the incident, as he had to go to
the house of Mr. Sarkate, the Agricultural Officer, for taking information
about the field lake. He is the resident of Village – Vitholi, which is at a
distance of around 14-15 kilometers from Village - Manora. Injured
Ganesh is his brother-in-law. He deposed about the incident from its
starting point to the point the victims were taken to the hospital. He
44
deposed that after his work with Sarkate Saheb, he had intended to go to
the house of Devidas. However, the reason stated by him for his presence
on the spot at the relevant time is something which is entirely an
omission, a material one, and it has been brought on record by the
defence in his cross examination. As it is, he being the relative of injured
Ganesh, it is necessary to scrutinize his testimony carefully. He has
admitted that he has not tried to save the victims from the hands of the
accused persons. He has admitted that on the day of the incident, i.e.,
18/03/2014, the Agriculture Office was open. He has also admitted that
he had not stated to the Police Officer to have seen the incident, while he
has admitted that he was with the Police on 18th and 19th of March. He
has also admitted that he did not help in lifting the injured for taking
them to the hospital. Even he did not accompany the injured to the
hospital. On the contrary, he has stated that after the Police reached the
spot, they took the injured to the hospital, and this witness along with
Vijay (PW14) and one Jaypal reached the hospital by auto. His statement
was recorded on 20/03/2014, i.e., on third day of the incident. In the
light of the facts which have been brought on record during crossexamination,
his presence at the spot and witnessing the incident is
doubtful. It is unbelievable as to how he could recollect each and every
minute description of the incident on third day of the incident. Secondly,
45
as per his version, though he was with the Police in the hospital on
18/03/2014 and 19/03/2014, he did not disclose to the Police that he
witnessed the incident. Even he has not taken part in saving the victims,
in lifting and taking the victims to the hospital, and even informing the
Police about the incident. The presence of this witness on the spot in the
evidence of Nirmalabai PW19 is by way of omission. Evidently, his active
role started when the injured reached the Icon Hospital, Akola. His
presence on the spot and witnessing the incident is doubtful. Being the
near relative of the injured Ganesh, the natural conduct of this witness
on the spot would have been his taking of efforts to save the victims or to
shout and call for help or at least do something in taking the injured to
the hospital. Furthermore, this witness has failed to explain as to why he
had to go to the house of the Agricultural Officer at 4:00 pm by coming
to Naik Nagar when the Agriculture Office was open and which was
nearer to his Village – Vitholi. As rightly pointed out by the learned
defence counsel, he is nothing but a got up witness of the prosecution.
55. PW10 Devidas, the injured eye-witness, father of deceased
Avinash, could not withstand the searching cross-examinations. In his
examination-in-chief, he has stated the sequence of the incident with
minute description, alike other prosecution eye-witnesses, however, in
46
cross-examination, he was not firm in answering the questions. Initially
he flatly denied that whether Deothana is his original native place and
whether his relatives reside at Deothana. Then he admitted that his
relatives reside at Deothana and prosecution witness Vijay Rathod
(PW14) is son of his maternal uncle. Interestingly, Vijay Rathod
admittedly is resident of Village – Deothana. Secondly, he has admitted
that there are houses of other residents across the road in front of his
house, however, he deposed that he did not pay any attention whether
the persons residing nearby had gathered there. There are lots of
exaggerations and embellishment with regard to injuries received to him
and the material omissions, which have been cleverly brought on record
by the defence.
56. PW13 Ganesh the injured eye-witness in his 161 statement
has not stated that Vijay Rathod (PW14), Jaypal and Dyaneshwar
Rathod (PW9) were present when they were lifted by the police. He has
admitted that there are residential premises on all the three sides of the
house of Devidas and Ramdhan. However, this witness and the other
prosecution eye witnesses have cleverly expressed their ignorance as to
whether the residents of the locality have witnessed the incident, which
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according to us, as discussed earlier, raises doubt on their testimonies in
the facts of the present case.
57. The trial Court has not considered and appreciated the
evidence in the light of the above referred deficiencies. It also did not
consider the fact that the testimonies of all the six prosecution eyewitnesses
were almost identical and, therefore, what could have been
their effect. All the three injured witnesses claimed that they were being
assaulted simultaneously, and despite that, they could see the assault on
other persons and describe with precision which accused was holding
which weapon and on which body part he was assaulting. The learned
trial Court ought to have found that in such a situation, it was not
possible for the injured witnesses to talk about the assault on other
victims including the deceased, as in all probability, these victims would
be concentrating on their own safety instead of watching others.
58. The learned defence counsel has rightly pointed out that the
trial Court ought to have found that the conduct of the chance witnesses;
PW9 Dnyaneshwar, PW14 Vijay and PW19 - the informant Nirmalabai
was most unnatural, as none of them either tried to save the deceased or
the other victims or raised hue and cry. PW14 Vijay though claims that
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he attempted to intervene to save the deceased and in that process his
clothes got stained with blood, however, the material on record falsifies
the claim of PW14 Vijay as none of the other witnesses stated that PW14
Vijay attempted to save the deceased. Furthermore, evidently, the Police
did not seize the blood-stained clothes of this witness.
59. The postmortem report of the deceased Avinash reveals that
he had sustained one laceration of size 2X4 cm over the scalp with
internal damage. Though PW21 Dr. Gote, who performed the
postmortem examination says that one injury is possible if the deceased
is repeatedly assaulted on head by four persons provided all the blows
should land on the same site, the learned defence counsel has rightly
pointed out that it was impossible that when four persons were
continuously assaulting and giving repeated blows on the head of the
deceased by different weapons, all the blows would land on the same
site. On this aspect, the testimony of all these eye-witnesses cannot be
believed, and they could not have been termed as reliable witnesses.
60. PW2 Mukesh claims that he became unconscious while he
was being put in the ambulance at Manora for being shifted to Akola
hospital. As against this, as rightly pointed out by the learned defence
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counsel from the medical papers on record that PW2 Mukesh was
conscious and oriented (Exh. 519). On 19/03/2014, the general condition
of Mukesh was normal and moderate (Exhs. 522 and 523). Despite this,
the statement of Mukesh was recorded on 24/03/2014. The same is the
case with other injured eye witnesses. In the facts of this case, the
delayed recording of statements of the witnesses without plausible
explanation casts a serious doubt on the credibility of the prosecution
witnesses. It is evident from the record that the recording of statements
of the eye witnesses was started from the third day of the incident. It is
very difficult to believe as to how the injured witnesses, who were
allegedly unconscious and who had undergone medical treatment for
number of days could recollect each and every detail of the incident after
number of days of the incident. The learned defence counsel has brought
on record certain material omissions in their testimonies. All these facts
go to show that it is very risky to record conviction of the accused.
61. Furthermore, as rightly pointed out by the learned defence
counsel that the record does not reveal that if any independent witness
has been interrogated by the police. In this context, the learned trial
Court relied on the judgments in Sarwan Singh Vs. State of Panjab,
AIR 2002 SC 3652, and Ambika Prasad & Anr. Vs. State of Delhi
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Administration, AIR 2000 SC 718 and observed that nonexamination
of independent witnesses is not fatal to the prosecution
case. There is no doubt about the ratio laid down in the above cited
authorities. However, at the same time, in the present case, it cannot be
lost sight of the fact that not only the chance witnesses but the panch
witnesses are admittedly the relatives. Secondly, as discussed earlier, the
prosecution eye-witnesses have deposed one set of facts with minute
descriptions of the incident coupled with the fact that the statements of
these witnesses were recorded belatedly and the Investigating Officer
(PW23) could not explain satisfactorily about such delay so also the
conduct of the eye-witnesses which has been brought on record during
their cross-examinations, raises a serious doubt on the prosecution story.
In such circumstances, examination of independent witnesses was
necessary in the light of the fact that the site of the incident was in the
residential locality and there was crowd of people when police reached
the spot. Furthermore, Nirmalabai has admitted that she is having good
relations with her neighbours. In such circumstances, the learned trial
Court ought to have drawn adverse inference against the prosecution for
non-examination of the independent witnesses.
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62. Interestingly, the learned trial Court has taken serious note
of the lapses in the investigation for not filing MLC report of the injured
and the accused with the chargesheet, for not sealing the seized articles
and not sending it for chemical analysis within a reasonable time. The
learned trial Court has rightly discarded the evidence of seizure of
weapons and clothes from the person of accused from consideration.
However, the trial Court has erred in extending benefit of defects in the
investigation to the prosecution. In our considered opinion, in the
peculiar facts and circumstances of the present case wherein 23 accused
are involved for the charge of murder, being members of unlawful
assembly and in the absence of evidence of independent witnesses and
other reliable material, the lapses in investigation with regard to nonsealing
of muddemal property and delay in sending the same for
chemical analysis are serious of kind and the benefit of the same has to
be extended to the accused. For considering the evidence of articles
recovered during investigation and using the same against the accused as
incriminating material, there should have been sanctity to the process at
every stage of handling the property right from seizure of property,
sealing, carrying, storing, sending it for chemical analysis till the analysis
is done by the Chemical analyser and receipt of C.A. reports.
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63. In the light of the discussion with regard to the parrot-like
versions of the prosecution eye witnesses and other aspects of the matter
as discussed earlier, it is difficult to comprehend as to what exactly had
happened on the spot and in such circumstances, the defence of the
appellants that on the day of incident, Avinash, Devidas, Mukesh and
Ganesh along with others attacked on the house of Janardhan and to
save accused Janardhan accused Duryodhan, Govardhan and Kuldeep
had a scuffle with them and to save accused Janardhan and his brothers,
residents of the locality attacked the complainant party, appears to be
probable, the benefit of which must be given to the accused.
64. Furthermore, the defence examined three expert medical
witnesses and also brought on record medical documents (Exhs. 768,
769 and 771) showing that accused Janardhan, Duryodhan, Govardhan
and Kuldeep had taken medical treatment on 21/03/2014 for their
injuries after their arrest. The prosecution has cleverly suppressed the
MLC reports of the accused and were not found part of the chargesheet.
The prosecution is altogether silent on the injuries received by the
accused which in the facts of the present case, supports the defence of
the appellants and reinforces the doubt on the prosecution story.
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65. The learned trial Court has erroneously observed that only
because there is no panchanama of the place in front of house of Devidas
where Indica car was stopped, the whole of the prosecution evidence
cannot be discarded. In the present case, in order to inspire confidence
of the story of the prosecution, the presence of Indica car in front of
house of Devidas where the witnesses allegedly alighted from the car and
were allegedly taken away forcibly could have been the vital evidence.
Absence of this vital evidence gives a serious dent to the prosecution
story as it is very difficult to comprehend as to what had actually
happened on the spot. It is the defence of the appellants that
complainant party was more aggressive and they attacked on the accused
Janardhan and his brothers and they suffered injuries, while it is the
prosecution story that as soon as the witnesses alighted from the car,
they were attacked. In such circumstances, the presence of car on the
spot could have been vital evidence in support of the prosecution case.
66. The learned trial Court in para 110 of the judgment has
recorded the submissions of defence counsel with regard to the identical
versions of the prosecution eye-witnesses. However, the learned trial
Court has erred in discarding the same by observing that only because
the witnesses are stating the incident in similar fashion, it cannot be said
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that the witnesses are tutored. The learned trial Court has not considered
at all as to how could it have been possible for these witnesses to observe
the things in the same manner from different angles and to state before
the police with minute details the names of all 23 accused, role played by
each of them, nature of weapons, injuries sustained etc, not immediately
after the incident but after some days of the incident. The learned trial
Court ought to have dealt with this core defence of the appellants
appropriately.
67. In the light of the above discussion, the submission of
learned APP Mr. Doifode that the testimonies of eye-witnesses are
mutually corroborative cannot be accepted. The learned A.P.P. Mr.
Doifode in his lengthy argument mainly concentrated on the aspects of
common object of the unlawful assembly, part played by each of the
accused, injuries received to the deceased and the victims, nature of
injuries, medical evidence and recovery of weapons at the instance of
accused persons. The learned A.P.P. Mr. Doifode has also cited a bunch
of authorities on these aspects. In our considered opinion, in a case
primarily based upon ocular evidence, like the present, it is necessary for
the Court first to satisfy itself about reliability of the prosecution
witnesses. But, for the reasons stated earlier, we have not found them to
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be trust worthy. It is very much obvious from reading of the testimonies
of the eye-witnesses that they are almost identical. As discussed earlier,
it is difficult to believe that six eye-witnesses deposed the occurrence of
the incident in identical fashion with each and every minute detail,
which, in our considered opinion, is humanly impossible. Apart from
this, as discussed earlier, not a single independent witness (except police
and medical witness) was examined even when it is not the case that the
incident occurred in isolation or during late night hours. The statements
of the witnesses were recorded belatedly which gives scope to believe
that the prosecution had time to customize a story and to create
evidence. There was serious lacuna in non-sealing muddemal and
delayed sending the same for chemical analysis and therefore even
though there is evidence of blood stains on clothes and weapons, it is of
no use.
68. It is pertinent to note here that while appreciating the
evidence on record, we have kept in mind the settled principles of
criminal law as pointed out by the learned A.P.P. and the learned counsel
for the appellants through various judicial pronouncements.
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69. In the result, we find that the prosecution has failed to prove
the case beyond reasonable doubt. The accused are entitled to benefit of
doubt. As such, the Appeals deserve to be allowed. The Criminal Appeals
are allowed. The appellants are acquitted of the offences charged with.
Fine amount if paid by appellants be refunded to them. The appellants
are directed to be set at liberty forthwith, if not required in any other
case.
(JUDGE) (JUDGE)
Sumit
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