Bilal Nazki, J.
1. Special Case No. 1 of 2000 was tried by the Sessions Judge, Pune, who was also a Special Judge for the Maharashtra Control of Organized Crimes Act. Seven accused persons faced trial for the offences under Sections 143, 147, 148, 302, 324 read with Sections 149 and 34 of the Indian Penal Code. They also faced trial for the offences punishable under Section 4 of the Arms Act and Sections 3(1)(i), 3(5) and 3(2) of the Maharashtra Control of Organised Crimes Act. By his judgment and order dated 30th April, 2002 of the learned Sessions Judge, all of them were convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 2,000/- each. They were also convicted for the offences punishable under Sections 143, 147 and 148 of the Indian Penal Code and sentenced to suffer R.I. for one year and fine of Rs. 200/- each. They were also convicted for the offence punishable under Section 4 read with Section 25 of the Indian Arms Act and sentenced to suffer R.I. for one year and to pay fine of Rs. 200/- each. Accused No. 1 was also convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to R. I. for six months and to pay fine of Rs. 200/-. Accused Nos. 2 to 7 were acquitted of the offence under Sections 324 read with Section 149 of the Indian Penal Code. All the accused were acquitted of the offence under Sections 3(1)(i), 3(2) and 3(5) of the Maharashtra Control of Organised Crimes Act, 1999. The substantive sentence were to run concurrently.
2. The accused persons have filed the appeal being Appeal No. 655 of 2002 against conviction and sentence. While the State has filed appeal being Appeal No. 892 of 2002 against acquittal of the accused persons under the provisions of the Maharashtra Control of Organised Crime Act, 1999. Both the appeals are from the same judgment and order. Therefore, both the appeals are heard together and they are being disposed of together.
3. At the outset, it is pointed out that all the accused persons are brothers and two of them have already died during the pendency of these appeals and they are appellant Nos. 1 and 5 in Appeal No. 655 of 2002. As such, both the appeals, in so far as appellant Nos. 1 and 5 are concerned, stand abated. The occurrence on the basis of which the accused went to trial has resulted in two deaths and also injury to one of the witnesses i.e P.W.2. The facts relating to this case, on the basis of which the prosecution filed the charge sheet, can be summarised thus:
That the accused persons were real brothers. They lived in a locality known as Shikalkari Vasti in Ramtekdi area at Hadapsar, Pune. Deceased Dashrath was the maternal uncle of P.W.2 Yogesh Pillaye. Yogesh Pillaye also resided in the same locality. The occurrence took place on 19th July, 1999, which was reported to police by the Complainant, the complaint being Exh.80. According to the complainant, being P.W.2, the complaint was filed with the Wanawadi Police Station. The deceased Dashrath was staying at Ghorpadigaon. He was visiting Ramtekdi of and on as his sisters were living in Ramtekdi area. Father of P.W.2 had died early when P.W.2 and his brothers were minors at that time, so their maternal uncle Dashrath used to look after them and, therefore, he was off and on visiting them at their house at Ramtekdi. In the year 1993 the accused Diddisingh and his brothers had assaulted deceased Dashrath and the matter had been reported to the police and Diddisingh and his brothers were arrested. They were prosecuted and the case was pending against them before the J.M.F.C., Cantonment Court at Pune. When the case was fixed for hearing on 18th June, 1999. In the morning of that day the accused Diddisingh, Chandsingh and Jalindersingh approached Dashrath at the house of his sister Anjali and asked Dashrath to withdraw the case and threatened them that in case he failed to withdraw the case, they would kill him. The incident was reported by Dashrath to Wanawadi Police. As a result Chandsingh was arrested and was prosecuted. Because of this accused Nos. 1 to 7 got irritated and they started quarreling with Dashrath, his sister and nephews. The prosecution case was that generally the behaviour of these seven brothers in the area was reprehensible and they had created an image of terror so that no one dare to lodge complaint against them.
4. On 19th July, 1999 in the morning at 11.00 a.m. Dashrath had been to the house of Yogesh along with Sairam. Yogesh asked his uncle Dashrath to accompany him to Pune as he had to go to obtain passport and visa. Dashrath agreed and they made certain arrangement, by which Dashrath and Sairam left the house of Yogesh and went to Pune town. Yogesh left his house and came to Ramtekdi Bus Stop and was waiting for his uncle who had gone to Pune town. At about 12.45 p.m. Dashrath and Sairam returned back on their Kinetic Honda motor cycle. They turned their motor cycle towards Ramtekdi because they had not seen Yogesh waiting for them at bus stand. Yogesh saw them so he called his uncle. When Sairam and Dashrath turned by S. R. P. Road, which leads towards locality of Yogesh and when they reached up to Pappu Garage, they were restrained by accused Nos. 1 to 7. Accused Nos. 1 to 7 had swords in their hands. They restrained the motor cycle of Dashrath and accused asked themselves to start attack and kill them. Chandsingh hit a sword on the head of Dashrath. Because of the first blow, the Dashrath who was on the motor cycle of Sairam fell down Sairam also fell down. All the accused then started giving blows of swords on Dashrath. At the time of this attack, they were saying that they should not leave them alive but should kill them. They inflicted injuries by swords to Dashrath on head, face, neck and legs. In this incident accused Diddisingh and Takkusingh also gave blows of swords to Sairam on his head. Then Sairam just started running but he could not run. He was unable to run as he had sustained injuries and he fell down at some distance from Dashrath. When this assault was going on, P.W.2 Yogesh rushed towards the spot and requested the accused persons not to kill his uncle. When Yogesh made an attempt to rush towards his uncle, accused Diddisingh gave blow of sword to Yogesh which blow hit his palm and Yogesh also sustained injuries. Diddisingh asked Yogesh to run away otherwise he would also be killed. Because of this threat, Yogesh ran away and stood at some distance. After some time, accused conversed with each other and said that Dashrath was dead and thereafter all of them left the spot and ran away with the weapons which they had. After they left the spot, Yogesh rushed towards the spot where his uncle was lying. When he reached there, his maternal aunt P.W.4 Anjali also arrived. Both the Dashrath and Sairam were unconscious. Vinesh, the brother of Yogesh also came to the spot. Vinesh, Yogesh and Anjali called two auto rickshaws and both the injured Dashrath and Sairam were carried to Sassoon Hospital. On reaching Hospital, the Medical Officer declared Dashrath dead. Sairam was alive and was admitted in Ward No. 9. The relatives of Sairam shifted him to Budhrani Hospital and he was admitted there. He was treated there by a doctor. Throughout Sairam remained unconscious. He was kept in I.C.U. The doctors had noticed fracture of right parietal bone, subdural haematoma in temporal parietal area. The doctor ruled out surgery and eventually Sairam also died next morning at 5.15 a.m. at the Bhudhrani Hospital.
5. On the basis of this prosecution story the accused persons were prosecuted. Charges were framed as mentioned above. The accused pleaded not guilty and claimed to be tried. The prosecution examined 24 witnesses. Out of these witnesses, P.W.2, 4, 5 and 18 were the main eye witnesses. The prosecution also tried to prove recovery at the disclosure of the accused persons but recovery was disbelieved by the Sessions Judge.
6. P.W.1 is the panch witness, who stated that on 19th July, 1999 in the evening at about 5.30 p.m. he was leading towards his house from Hadapsar by Solapur Highway. After he crossed Ramtekdi bridge, he noticed crowd and also the police party. Then the police called him and inquired whether he could offer his assistance to them. He agreed to act as a panch witness. The police took him near Pappu Garage, where one red colour cap was lying near one electric poll. One black colour Kinetic vehicle was lying on S.R.P.Road at a distance of 5 ft. from the garage. He saw the condition of the vehicle. The vehicle was in a damaged condition and the pieces of broken glass of vehicle were lying on the ground. There were blood stains on the vehicle. At the time of recording panchanama, it was raining. Cap was lying on the ground and was stained with blood. The blood stains were also found on the ground. The blood was found mixed with the mud. One tooth was also found in the blood mixed earth on the spot. The police collected blood mixed with earth in one packet. The tooth found on the spot was seized. The cap as well as Kinetic vehicle were also seized by the police. The vehicle bore No. 7725.
7. P.W.2, Yogesh Shalvaraj Pillaye, is a main prosecution witness, who is an eye witness. He stated that he, his mother, his sister, his brother and maternal aunt reside together at Ramtekdi. Anjali is his maternal aunt and she resided in the house which is situated in front of his house. His father died when he was a minor. Deceased Dashrath was his maternal uncle, who used to look after them after the death of his father. The deceased was residing at Ghorpadi in Lalkhan Wada, Room No. 58. He knew all the accused from his childhood. They were residents of Sikalkar Vasti at Ramtekdi. In 1993, the accused Diddisingh and his brothers had assaulted his maternal uncle Dashrath. Dashrath was admitted in the hospital because of the injuries sustained by him. Criminal case relating to that incident was pending in a Cantonment Court. In the said case the accused were arrested and were subsequently released on bail. On 18th June, 1999, Dashrath had been to his house. At that time the accused also came to his house and asked Dashrath to withdraw the case. They also gave threat to kill his uncle if he did not withdraw the case. On the same day, his uncle filed a complaint in Bhairoba Nala Police Chowky and on that complaint Chandsingh was arrested. Because of arrest of Chandsingh, accused were annoyed and always visiting their locality and uttering abuses and giving threats to them. But the witness stated that they neglected their threats and did not lodge any other report. The accused were creating terror in the locality. On 19th July, 1999, his maternal uncle Dashrath came to his house at about 11.00 a.m. Along with his friend Sairam on Kinetic Honda. He asked his uncle whether he would accompany him to Fatima Nagar to assist him in getting visa. His uncle told him that he should wait at Ramtekdi Bus Stop as he had some work of his friend and after finishing that he would meet the witness at Ramtekdi Bus Stand. Then he left his house and went to Ramtekdi Bus Stop. He reached there at 11.30 a.m. Dashrath had already gone with his friend to do some work of his friend. Because of rain he waited under a shed of a shop behind Ramtekdi stop. At 12.15 noon, his uncle Dashrath along with his friend came there and he saw them. He gave call from the shed where he was standing. Dashrath came there on his Kinetic Honda with his friend from Pune side. Though he gave call, Dashrath turned his Kinetic Honda by S.R.P. Road as he must not have heard his call. He followed his maternal uncle towards S.R.P. Road from Ramtekdi. He noted that his uncle Dashrath, who was on Kinetic Honda, was being restrained near Pappu Garage by accused Nos. 1 to 7 who were having swords in their hands. Witness saw the occurrence from the distance of 20 ft. He saw the accused Chandsingh gave blow of sword on the head of his uncle Dashrath, who was still sitting on his kinetic Honda. His uncle Dashrath and his friend Sairam both fell down from kinetic Honda. After Dashrath fell down, accused Diddisingh hit sword on his face. Accused Takkusingh hit sword on the neck of Dashrath. Accused Jalindersingh and accused Khannasingh gave blows by swords to Dashrath on his chest and stomach. Accused Pillisingh and Lakhansingh gave blows of sword on the legs of Dashrath. The witness also saw the accused Diddisingh and Takkusingh hit swords on the head of Sairam. That time he rushed towards his uncle to save them. That time he was saying the accused not to hit his uncle and was shouting not to beat his uncle. Because of the assault Sairam also fell down at some distance from his uncle. That time Dashrath was lying on Kaccha road in a pool of blood. Accused Diddisingh told him to go away and also threatened that he would also be killed. That time Diddisingh gave blow on his head but to save he raised his hand and the sword hit on his left hand finger. He turned towards Ramtekdi bus stop to run away. While running he turned towards backside to see whether the accused were following him. The accused were not found following him but he saw them running away towards a lane from Toddy shop having swords in their hands. That time he also saw his maternal aunt Anjali coming towards Dashrath from other side. He rushed towards Dashrath. That time his brother Vinesh also came to the spot from southern side on S. R. P. Road. Anjali put her saree on the face of Dashrath and covered his face. Dashrath was alive by then. Vinesh and his aunt Anjali took Dashrath to the hospital by one rickshaw. He called another rickshaw and reached Sairam to Sassoon Hospital. At that time Sairam was unconscious. Injured Sairam was admitted in Ward No. 9 of Sassoon Hospital. There, he came to know that Dashrath was declared dead by the doctor. So he rushed towards him, leaving Sairam in Ward No. 9.
8. P.W.2 saw the dead body of Dashrath in the mortuary of the hospital. One lady police officer was present there. Police recorded inquest panchanama. At the time of inquest panchanama, he gave identification of dead body of Dashrath. In the hospital itself, they informed the police that they wanted to lodge complaint about the incident, but he was told that he should go to Wanawadi Police Station. Then at about 3.30 to 4.00 p.m. His complaint was recorded in Wanawadi Police Station. He narrated incident in detail to the PSI, who recorded the complaint. The complaint read over to him was the same and it bore his signature. This F.I.R. was marked as Exh.80, though an objection was taken by the defence to mark the same as exhibit that it should not be treated as F.I.R. since the investigation was already started. Thereafter, along with the police he went to the place of incident. He had shown the place of offence to the police. The police then recorded panchanama of scene of offence. They then returned back to Wanawadi Police Station. In the police station he produced his blood stained shirt and banian before the police. They were seized by the police and the panchanama was also prepared. He was also referred to the hospital for medical examination as there was injury on his hand. He was examined in the Sassoon Hospital by the doctor. He was given treatment and sutured the wound on his finger. Articles 6 and 7, the shirt and banian, were identified by him as his own clothes worn by him at the time of incident. These articles were stained with blood of Sairam when he had lifted him and took him into the rickshaw to carry him to the hospital. Article swords before the court were the swords used by the accused in the incident.
9. On cross-examination, he stated that Survey No. 110 Ramtekdi was a big survey number and the population of the slum holders staying there might be 10,000. His house was at a distance of about half kms. from Pune Solapur Road towards southern side. S.R.P. Road leads towards south from Solapur Road. From S. R. P. Road one road, Andh Shala Road, was parallel to Solapur Road. His house was adjacent to one another road which starts from Andh Shala Road and runs towards right side. He stated that to the left of Andh Shala Road there was a locality known as Sikalkar Vasti where accused resided. The population of Sikalkar community was about 1,000. All Sikalkaris follow Sikh religion and they grow their hair, beard but do not always carry sword with them. Bhangar shop of Satish Londhe was at the corner of Andh Shala and the road which leads towards his house. Satish Londhe was a Corporator of Pune corporation from that ward. Wanawadi Police Station was at a distance of about 1 and half kms. from Pappu Garage. The bus stop where the inhabitants were getting down from the bus was to the north of Solapur Road and the bus stop where he was waiting that day was opposite to the said bus stop. At Ramtekdi bus stop there was shed where he was waiting that day. There was one Saibaba Temple at the junction of S.R.P. Road and Andh Shala Road. There was rickshaw stand in front of Saibaba Temple on Andh Shala Road. Pappu Garage was not visible to a person standing from the rickshaw stand near Saibaba Temple. About 1 to 1 and 1/2 hour was spent for recording his complaint. P.I. Irani got recorded his complaint. When the recording of inquest panchanama was going on in Sassoon Hospital, he left the hospital and went to Wanawadi Police Station to report the matter to the police. He is Hindu by religion. On the next day of the incident at about 11.00 a.m. He took dead body of his maternal uncle after post mortem from police constable on passing receipt for it. That day he reached Sassoon Hospital carrying injured Sairam from the spot at about 1.00 p.m. When he approached the medical officer having requisition issued by police, the doctor made inquiry with him about the cause of injury. It did not happen that he disclosed to the doctor that he sustained injury at 2.30 p.m. by iron sheet. Then he was put a question whether the doctor had recorded the history as narrated by him and he stated that he had explained the cause of injury on his hand to the doctor who had examined him and he disclosed to the doctor that he sustained injury by a sword. He died that he had said to the doctor that he sustained injury on his hand by iron sheet at 2.30 p.m. In the year 1999, he had plan to go to abroad but not to a particular place. He had obtained passport in 1992.
10. On the day of incident he was to meet an agent at Fatima Nagar in connection with visa. The agent was also acquainted to deceased Sairam. That day's visit was the first visit to the agent in connection with his visa. That day he had no talk with Dashrath or Sairam about the work for which they had gone to Pune City. He had talked with his uncle in the morning at his house on the day of occurrence. When they made plan to meet at Ramtekdi bus stop, there was nobody except he, Dashrath and Sairam. He was waiting for his uncle at the bus stop from 11.30 to 12.00 noon. Sairam had no blood relation with Dashrath but they were friend. He did not know Shekhar. He also did not know Mahesh Salunkhe. He denied that Pappu Garage or the site in front of it was not visible from Ramtekdi bus stop. He had stated at the time of recording his complaint that after Dashrath started by S.R.P. Road he followed him and witnessed the incident from a distance of 20 ft. He could not assign any reason why said fact was not recorded in his complaint, Exh.80, though he had said so to the police. Then there are some other omissions pointed out, like, that he was waiting under a shed because of rain which was not found in police statement. There were about 10 persons at the bus stop at the time of occurrence. He denied the suggestions that there was no plan for him to meet the deceased person at Ramtekdi Bus Stop. He had not witnessed the incident of assault on Dashrath from accused which took place in the year 1993. However, he was present at the time of incident on 18th June, 1999. He denied that deceased was dealing in illicit liquor. He did not know that any case was pending against Dashrath. He also denied that Dashrath was a history sheeter. He denied that both the deceased persons were dealing with illicit liquor and were supplying illicit liquor in the area. He also denied that because of illicit liquor business of his uncle, he had occasionally quarrel with the Corporator Satish Londhe. Then he was cross-examined by different advocates appearing for different accused. But almost all the questions were repeated.
11. P.W.3, Denis Deva Sabastin, was a panch witness to the seizure of banian and shirt given by P.W.2 Yogesh to the Police. P.W.4, Anjali Mical Sabastin, is another important witness. She resided at Ramtekdi. She has two sons Vishal and Ajay, who were both working in a factory known as Dina Filter Company. Her daughter Baneshri was staying at the house. P.W.2 was her sister's son. She is the sister of Dashrath. Dashrath used to visit her and her sister's place to look after their family. She was working as Sweeper in Preeti Nursing Home. Preeti Nursing Home is on S.R.P. Road and her duty hours were from 9.30 a.m. to 12.15 noon and from 5.00 p.m. to 6.00 p.m. She knew accused Nos. 1 to 7. The house of Chandsingh was in front of her house. The other accused also resided in the same area so all the accused are known to her. She knew all of them. She knew about the incident of 1993. On 18th June, 1999 some quarrel took place between the accused and Dashrath. On 19th July, 1999 she had left her house at 10.30 a.m. and had gone to Preeti Hospital to attend her duty. At about 12.15 noon, she came out of the hospital and was returning back to her house. When she reached S.R.P. Road, there was complete silence on the road. She looked towards Pappu Garage. She noted black kinetic vehicle of his brother was lying and assault was going on on her brother Dashrath. All the seven accused were beating her brother Dashrath. While running she shouted and requested the accused not to beat her brother. She noticed Sairam lying on the road at a distance of about 7 to 8 feet away from Dashrath. She reached near Sairam, he told her that the said accused had assaulted Dashrath and save him. Then she went towards Dashrath. That time all accused started running away by lane from Tody shop. All the accused were having swords in their hands. In her presence, accused Pillisingh gave blow by sword to Dashrath and ran away. There were injuries on all over the body of Dashrath. His face was found completely disfigured, and brain matter had come out from the head. Since she could not see his condition, she covered his face by her saree. That time Vinesh arrived at the spot while running from his house. After Vinesh, Yogesh also arrived. On the spot. Then she and Vinesh lifted Dashrath and carried him to Sassoon Hospital by one rickshaw and Yogesh carried Sairam to the hospital by another rickshaw. In the hospital, doctor examined Dashrath and declared him dead. Sairam was admitted in the hospital in Ward No. 9. At about 7.00 to 7.30 p.m. she visited Wanawadi police station and produced her petticoat and saree which were stained with the blood and brain material and police seized the same. Articles 8 and 9 shown to her were the articles which she had given to the police.
In her cross-examination, she stated that when police seized her clothes, they also made inquiry about the incident and recorded her statement. She stated that she, Yogesh and Vinesh lifted Dashrath from the spot and took him in the rickshaw. She also stated that the clothes of Vinesh and Yogesh were not stained with blood of Dashrath while lifting him. Both the rickshaws reached Sassoon Hospital one after another. They reached hospital after about 1.00 p.m. In the Sassoon Hospital she, Vinesh and staff of hospital took Dashrath out of the rickshaw and put him on the stretcher. At that time he was alive. They took him to doctor, who on examination declared him dead. She did not know whether any relatives of Sairam arrived in the hospital before he was shifted to Ward No. 9. She did not know whether Sairam was examined by the same doctor who examined Dashrath. Yogesh accompanied Sairam to Ward No. 9 and she and Vinesh were near the dead body of Dashrath. She and Vinesh were in the hospital up to 2.00 to 2.30 p.m. Thereafter, she left the hospital and went to Ghorpadi to give message of the incident to her mother. Thereafter, she never visited Sassoon Hospital. Till she left the hospital, no police officer had visited Sassoon Hospital. Up to 2.30 p.m. She was along with the dead body of her brother. At about 1.30 p.m. The dead body of her brother Dashrath was removed to mortuary. From 1.30 p.m. to 2.30 p.m. she was sitting in front of the mortuary. Till then no police officer had come there for inquiry. A question was put to her whether she knew PSI Sherekar, to which she did not reply. She stated that she was at Ghorpadi for about 1 and 1/2 hour at the house of her sister and thereafter returned back to her own house. Vinesh did not accompany her to Ghorpad but he remained in Sassoon Hospital. On that day after 2.30 p.m. she did not meet Yogesh. At 7.00 p.m. on her own accord, she decided to produce blood stained clothes in the police station and therefore she left the house and went to the police station as it could be the significant evidence. The Pappu Garage is on the way to Wanawadi Police Station. She went to police station by auto rickshaw. Yogesh was not present in the police station when she visited to produce her clothes. She was in the Wanawadi Police Station from 7.30 p.m. to 8.30 p.m. In her further cross-examination, P.W.4, stated that Preeti Rojes is a lady Medical Officer in Charge of Preeti Nursing Home. Residence of the doctor was adjacent to the hospital. Doctor used to come to the hospital at about 10.00 a.m. She was attached to the hospital since 2/3 years. She had no document to show that she worked in Preeti Hospital. She did not remember whether police recorded her statement on 18th June, 1999. She denied that when police recorded her statement on 18th June, 1999 she disclosed that her occupation was household and as such the statement about her job was wrong. She stated that she did not stated any statement that was wrong. She denied that on the day of occurrence she was not working in Preeti Nursing Home. She did not know for what offences the accused had been charged sheeted for the incident occurred in 1993. But she was a witness in the case. Up to the date of occurrence in this case, she had never been summoned by the Court in connection with 1993 case. She knew the bhangar shop of Satish Londhe. She did not know that there was a riot involving 200 to 300 persons near Bhangar shop of Satish Londhe. She denied that at the time of said riot she was at her house. She also denied the suggestion that Sairam while running in injured condition came and fell in front of her house. She also denied that she had not seen the occurrence in which her brother Dashrath and Sairam sustained injuries. Her brother Dashrath was a turner but was not serving anywhere. Dashrath was staying at mother's house at Ghorpadi as well as in her house. He had no fixed routine to visit her house or the area. She denied that Dashrath was having fiat car and Yamaha motor cycle. She denied that Sairam was son of her maternal uncle. Sairam was staying at Ghorpadi. She also denied that her brother Dashrath and Sairam were dealing in illicit liquor and because of that business they had many enemies.
12. P.W.5, Surayya Ramzan Shaikh, was projected by the prosecution as eye witness as he was a hawker and happened to be there at the time of occurrence. In the examination he was declared as hostile. Even in his examination in chief, he had stated that he had seen a crowd assembled at the place of occurrence, but he said that he thought corporation people had come to remove the encroachment and therefore he took his cart away and left for his house. He in his cross-examination stated that he had made a statement before the police. Later, he denied that he had made any statement before the police. Parts of alleged statement before police were marked, but he denied having made statement to police. He also denied that the accused before the court were known to him. He denied that he had identified the accused before the police. P.W.7, Sagar Gulabsingh Pardeshi, is a witness to the disclosure. In the police station one Pilli Singh was sitting. He was not known to him before the incident and he told him that he had kept the weapon of assault, sword and the clothes in his house and he would produce them. Then they went in a police jeep along with the police persons and others to Ramtekdi bus stop. The accused Pillisingh asked to be taken to the left side. The jeep was taken on S.R.P. Road, then towards the left side from rickshaw stand and Pillisingh asked to stop vehicle in Chand Tara Chowk. In that Chowk, Pillisingh got down from the jeep and thereafter they also got down. Pillisingh started walking towards Santosh General Stores and they all followed him. Pillisingh turned by one small lane from that general stores and stopped near one Bhangar shop and told them that the house to the side of that Bhangar shop was belonging to him. In the front portion, in the house, was a shed of tin sheets. There were pigs in that shed. Pillisingh and they all entered that shed. Pigs were removed out of that shed. To the rear side of that shed there was another shed of tin sheets. It was a room which was found latched. Pillisingh opened the door and then they all entered that room. There was one cot. Pillisingh took out a sword and clothes from below that cot and shown the same to the witness. P.I. Irani took custody of that sword and the clothes and they all returned back to Wanawadi Police Station. The witness identified Article 13 as a sword and Articles 11 and 12 as clothes produced by Pillisingh. P.W.7, Rafiq Abdul Sattar, is a witness to the disclosure statement made by another accused Khannasingh. This accused made a statement and then took them to a room in the Ramtekdi area, claiming to be his house. Where they found one big tin pot kept on the heap of wooden strips, from where he took out one sword. He also took out one plastic bag from that place. In the plastic bag there were clothes. The clothes were shirt and pants stained with blood. P.W.8, Anil Baburao Londhe, is again a witness to the disclosure statement made by another accused Jalindersingh. They accompanied the accused Jalindersingh to the place stated by him and one sword was recovered at his disclosure. P.W.9, Shankar Sheni Paul, is also a witness to the disclosure statement made by accused Takkusingh. The accused Takkusingh made disclosure statement in the police station in the presence of the witness. They all accompanied the accused Takkusingh to the place of recovery. It was a house claimed to be belonging to the said accused. The accused opened the shutters and they all entered the said house. There was one showcase from which accused took out a sword and also took out clothes from the lower side compartment. The clothes were blood stained. P.W.10, Khandu Hanumant Peth, was a witness to disclosure having been made by the accused Lakhansingh that he had kept sword and clothes in his house. They then accompanied with the said accused and police party and recovered the same. P.W.11, Vijay Zumbar More, was a witness to the disclosure having been made by the accused Jarlal Singh alias Chandsingh that he would produce weapon of assault and blood stained clothes which he had kept in the house of his distant brother-in-law. Then the witness accompanied him along with the police party and there one sword and clothes were taken out by the accused which were wrapped in separate paper wrapper. P.W.12, Shrikant Balasaheb Pawar, is also another witness to the disclosure statement made by Didisingh, who made a disclosure that he had kept the weapon of assault and clothes at the house of his son-in-law and he would produce the same. Then they accompanied him and sword and clothes were recovered. P.W.13, Dr. Prashant Narayan Patil, is a doctor, who was working as lecturer in Forensic Department of B. J. Medical College, Pune. He conducted post-mortem of the dead body of Dashrath, which was forwarded to him on 19th July, 1999, between 7.00 p.m. to 8.30 p.m. The injuries noticed by him are as under:
1) Injury over face extending from medical end of left eye right eye completely destroying it, over an area of 12 x 6 x 7 cms. With crush effect but clean cut margin underlying bones (facial) fracture with clean cut margins.
2) Two incised wounds margin with injury No. 1, first extending from right fragus 5 x 4 x 2 cms. Bone deep with clean cut margins. Second extending from a point 2 cm. Above and medial to right pina 6 x 1 cms. Bone deep.
3) Incised wound over right check horizontal extending from point 2.5 cms. Below and anterior to right lobe of ear to right ala of nose 12 x 2 x 2 cms. Bone deep.
4) Incised wound 1 cm. Below & parallel to injury No. 3,6 x 2 x 1 cm.
5) Incised wound perpendicular to injury nos.3 and 4 extending from right ala of nose to right angle of mandible.
6) Two incised wounds over chin & low lip, parallel and 1 cm. Apart 5 x 2 x 1 cms. And 4 x 2 x 1 cms. Bone deep with fracture of underlying bones with clean cut margins.
7) Incise wound over left check, extending from a point 2 cm. Below and lateral to left eye to left angle of mandible 12 x 2 x 2 cms.
8) Lacerated wound over left from parietal region 3 cm. above left eyebrow 6 x 5 x 2 cms. with com united fracture of underlying skull bones and laceration of brain.
9) Lacerated wound lateral to left eye 4 x 3 x 1 cms.
10) Lacerated wound over right front parietal region 4 x 3 x 05 cm.
11) Two incised wounds over anterior aspect of neck parallel to each other, 8 x 4 x 1 cm. And 7 x 3 x 1 cm.
12) Three stab wounds around right nipple over an area of 10 x 10 cms. Each measuring 5 x 2 cm. All opening into the chest cavity.
13) Three stab wounds on right side of mid line of anterior abdominal wall one above the other each measuring 4.5 x 2 cms. Opening into the abdominal cavity.
14) Two stab wounds on left side of anterior abdominal wall in left hypochondria region each measuring 5 x 2 cms. opening into the abdominal cavity. All stats wound have one clean cut edge and one blunt abraded end.
15) Lacerated wound over left leg in middle 1/3 4 x 2 cms.
16) Lacerated wound over right leg in middle 1/3 5 x 4 cms.
All these injuries were anti-mortem.
2. On internal examination:
Haematoma was present all over the scalp. On examination on the scull, scull bones walt and facial found fractured clean cut margin corresponding to the over lines incised wound. There was comm united fracture of both partial bones on examination of brain minings and brain were found lacerated and cub acnoid and sub rural haematoma was present. On the examination of thorax 3 stab bones corresponding overlying injuries opening into the chest cavity right 4th, 5th and 6th intercostal spaces were found. 50 c.c. of blood was noted in thoracic cavity. Two stab wounds were present, 1 lower lobe of right lung of dimension 2 x 3 cm. To and through and second one over middle lobe of 2 x 1 cm. On examination of abdomen 40 c.c. Of blood was present in abdominal cavity. Stab wound along greater curvature of stomach of size 2 x 1 cm. On examination of liver 3 stab wounds over right lobe of 4 x 2 x 5 cms. 3 x 2 x 4 cms. and 3 x 2 x 4 cms. and one towards middle lobe of 2 x 1 x 4 cms. were noticed. On examination of a spleen one stab wound to and through of size 2 x 1 x 3 cms. was noted. Stomach contained 50 c.c. Of yellowish semi digested food.
According to the doctor, the cause of death was heamorrahagic shock following multiple incised and stab wounds. According to him the injuries 1 to 11 were the injuries over the face and head. Injury No. 12 was external injury. The injury noted in col. 20 of the report, opening into chest cavity corresponds to external injury No. 12. Injuries noticed on the liver correspond to external injury No. 13. Injuries on the spleen corresponds to external injury No. 14. Incised wound and stab wounds were possible by weapons like sword. Lacerated wounds were possible by any hard and blunt weapon. Injury Nos. 8, 9, 10, 15 and 16 were the lacerated wounds and were possible by the blunt edge of the sword. In this case weapons allegedly used for committing the offence was not shown to him for his opinion. He also stated in his cross examination that it was not correct to suggest that injury No. 1 was a typical lacerated wound. He added that no injury in the present case was a lacerated wound but was appearing like an incised wound. He agreed that injury stab wounds were not possible by lateral strokes of weapon like sword. Injury Nos. 12 to 14 were the stab wounds with one clear cut and one blunt abraded margins and therefore the said injuries were not possible by weapon having both edges sharp. It was not possible to give depth of the stab wounds described at serial No. 12 because it caused internal injury over the lungs which were through and through. Minimum depth of the said injury, considering the damage to the internal organ was 6 to 7 cms. Injury 13 and 14 being on the abdomen, as such it was not possible to give the depth or the penetration of the weapon inside which could have caused these injuries.
13. P.W. 14, Dr. Ashok Bhalchandra Bhange, is Neurosurgeon, and was working in Inlacs and Budhrani Hospital, Korgaon Park, Pune. On 19th July, 1999, Sairam Pillay was admitted in the hospital. The doctor has brought along with him the record pertaining to Sairam maintained by the hospital. On 19th July, 1999 at 5.30 p.m., Sairam was admitted in the hospital by Dr. Ritesh Kataria. At 5.40 p.m., the witness examined the patient. The patient, at that time, was unconscious. The patient had been referred to his hospital by Sassoon Hospital. From the case papers, the witness said that even at the time of admission, the patient was unconscious. After admission, the patient was kept in I.C.U. and the investigations were conducted, and X-ray of skull and C.T. Scan were done. He had recorded his findings on examination of the patient and also the X-ray. Considering the condition of the patient, he ruled out surgery and continued medical treatment. The patient had expired next day in the early morning at 5.50. He produced the original papers relating to the case, marked Exhibit 116. The wounds had been sutured in Sassoon Hospital itself. However, the dimensions on the surface were confirmed as per the notes in the case papers. He also submitted that the injuries he had recorded on C.T. Scan would themselves be the cause of death of a patient. The nature of the injuries he had recorded was such that these injuries could have been caused by a weapon like sword.
14. P.W. 15, Dr. Rajendra Shivaji Bangal, is, again, doctor. On 20th July, 1999, the dead body of Sairam Pillay was sent to him for post mortem by Wanowarie Police Station. He received it at 11.25 a.m. and conducted the post mortem between 11.45 a.m. and 12.30 p.m. He noticed the following external injuries:
1. A stitched wound over right side of head 13 cm long starting from right front temporal region extending backwards over right temporal occipital region with upward convexity.
2. Stitched wound 6 cm long horizontal over left occipital region.
3. Horizontal superficial incised wound over back of right shoulder 12 cm long.
4. a vertical incised wound superficial over back of right shoulder 5 cm long intersecting injury No. 3.
5. a horizontal superficial incised wound over right stapular region 3 cm long and with lateral tailing of 3 cm.
6. Abrasion 2 x 1 cm over knuckle of left index finger.
7. Abrasion 4 x 3 cm over dorsal of base of left thumb. All injuries were anti-mortem in nature.
He noticed the following internal injuries:
1. Below scalp haematoma all over right half of the vault and occipital region.
2. Right remporasic muscle contused.
3. A clean out fracture of right parietal temporal bone of vault of skull 8 cm long placed antiroposterially corresponding to external injury No. 1 cavity deep.
4. Corresponding underlining mininges torn and brain lacerated.
5. Subdoral haematoma all over the right cerebral hemisphere.
6. Contusion of supero lateral aspect of right cerebral hemisphere 6 x 2 cm in size.
He also stated that blood was preserved for grouping. In his opinion, the cause of death was head injury. He had produced post mortem notes. The notes shown to him in the Court were the same. They were in his hand-writing and the same were marked Exhibit 118. The injuries noticed were sufficient to cause death in ordinary course of nature. According to him, injuries No. 1, 3 and 4 were possible by any sharp-edged weapon like sword. When the body was referred for post mortem, he received the inquest report. He produced the inquest report in the Court, which was marked Exhibit 119. Alleged weapons of assault were never referred to him by the investigating agency for his opinion. External injuries No. 6 and 7 were impossible by sharp-edged weapon. Injury No. 2, by itself, was a simple injury.External appearance of injury No. 1 was like an arch. Injuries No. 3, 4 and 5 were possible by weapon by forceful blows. Injuries No. 3 and 4 would be caused by heavy and sharpedged weapons.
15. P.W. 16, Gajju Singh Natthu Singh Bhada, is witness produced for proving alleged extra-judicial confession. He deals in business of copper coating. He knew all the accused persons. He said that on 20th July, 1999, there was a news item in the local newspaper that in Ramtekadi area, Didi Singh and others had murdered some persons from Mehtar Community. On 23rd July, 1999, on telephone, Lakhan Singh had a talk with the witness and confessed that they had committed offence of murder and they had apprehension that police would kill them. Therefore, the witness, being a leader of their community, should produce three of them before the police. The witness then made inquiries from Lakhan Singh as to which of three persons wanted to surrender before the police. Lakhan Singh told him that he himself, Chand Singh and Pilli Singh were ready to surrender before the police. He also informed him that they would like to surrender at 10 a.m. next day. Thereafter, this witness contacted Pathan, Police Officer from Wanowarie Police Station, and informed him that he was going to produce three boys before him on the next day at 10 a.m. Then Lakhan Singh, again, telephoned on 24th August, 1999, and asked him why he informed the police immediately. Lakhan Singh also alleged that the witness and the police had made a plan to kill him. After three days, the mother of Lakhan Singh, along with other female members of the family, their father and children, all came to his house. They pleaded apology for the threats given to him by Lakhan Singh, and they also told him that it was difficult for them to stay in Ramtekdi area because Mehetar Community persons were in search of them. They also requested to provide him one room as shelter for their residence. The parents of the accused also gave assurance that as and when the accused came back, they would be produced before the police through him. On the same day, he provided a room for the residence of the parents of the accused and female members of the family. Since then, they used to stay in that room. After 15 days, that house was raided by the Crime Branch Police on one night at about 3 a.m. All the family members found in the room were taken in police custody for the purpose of interrogation. On the next day at 3 p.m., accused Jalinder Singh contacted him on telephone and made inquiry about the incident that had happened on the previous night. The witness told him that all the family members of the accused were in police custody, and they were harassed, so that the accused should surrender. Then Jalinder informed him that the accused Pilli Singh had already been arrested by the police and thereafter, all others would surrender before the police. On the same day at about 8 p.m., all the family members of the accused came back to the house of the witness, as they were set free by the police. He asked the father and mother of the accused that they should ask their sons to surrender before the police, as the police were conducting raids against all the members of the community. They assured him that their sons would surrender before the police. He asked them to accompany him to the police station to register their names who were going to stay in his house and disclose the period of their stay; but these persons refused and a quarrel ensued between the parents of the accused and the witness. Then, he asked them to vacate the house and they vacated the house.
16. P.W. 17, Dr. Shal George Kakkattil, was a doctor in Sassoon Hospital. On 19th July, 1999, Sairam was admitted to hospital. The witness had brought the original case papers of Sairam to the Court. As per entries in the case papers, the patient was brought to CMO's chamber at 1.25 p.m. The entry in the case papers shows that the patient was brought to the hospital by relatives. The witness had examined the patient at 1.30 p.m. in CMO's room. Police Constable Sherekar gave alleged history of assault with sword at 1 p.m. near Ghorpadigaon. He recorded the same as disclosed by the police constable. The police constable also gave written requisition for examination and treatment of the patient, and in the said requisition, alleged history of assault was also given. When he examined the patient, he was unconscious. His general condition was poor. The witness examined him and found following injuries:
1. Incised wound 10 cm long over right parietal region with fracture of outer table skull palpable through it.
2. Incised wound 5 cm long over occipital area with fracture of outer table skull, palpable through it.
3. Incised wound 1 cm long over right side of back.
4. Incised abrasion 10 cm long over right side of back, 1 cm below wound No. 3.
5. Incised wound 2 cm long, 5 cm over injury No. 3.
The patient left Sassoon Hospital on the very day at 4.30 p.m. After his admission, treatment was provided to him in Sassoon Hospital.
17. P.W. 18, Mahesh Vitthal Salunkhe, is another eye witness. He stated that he was staying in Ghorpadigaon along with his parents and family members. His father owned a tempo and occasionally, he also used to drive it. His main business was selling vegetables. On 19th July, 1999, he left his house at about 10 to 10.30 a.m. and came to Kala Shankar Nagar by his tempo in search of customers. One Shekhar engaged his tempo for carrying turner job from Kala Shankar Nagar to Sasane Nagar. He fixed the charges at Rs. 60/-. Along with the said Shekhar, he went to the workshop of Girish to load the goods in his tempo. At 10.30 a.m., he left the workshop and started towards Sasane Nagar. After crossing Kalubai Mandir, he came up to Ramtekdi Bus Stop. Shekhar asked him to stop the tempo for two minutes. He took the tempo to the side of the road and stopped it. Then Shekhar told him that his friend Yogesh was waiting at the bus stop and Shekhar wanted to have a talk with him. Shekhar started towards Ramtekdi Bus Stop to meet Yogesh and the witness followed him. Shekhar had a talk with Yogesh for about 5 minutes. At that time he was standing at some distance from them. All of a sudden, Yogesh started running from the bus stop, giving call to his maternal uncle. At that time, two persons sitting on Kinetic Honda came there and in spite of call from Yogesh, went away towards the southern side. Yogesh also started running following that Kinetic Honda. He and Shekhar stood at the junction of Solapur Road and S.R.P. Road near a tea stall. Six to seven persons of Sikalkari Community, all of a sudden, came on S.R.P. Road from the lane to the side of Pappu Garage and restrained the persons on Kinetic Honda. Said persons started giving blows by sword to two persons who were on the Kinetic Honda. Both of them fell down on the ground from their Kinetic Honda. At that time, the surrounding shop owners closed the shutters of their shops. The pillion rider, who fell down, stood up and started running, though he was in an injured condition. When he started running, the assailants again gave blows by sword to him and those men fell down. When Yogesh tried to intervene in the assault requesting the assailants not to assault his maternal uncle, at that time, one assailant gave a blow by sword to Yogesh, but Yogesh raised his hand and the sword hit on the palm. Then Yogesh turned back and started running towards Ramwadi Bus Stop. Then, the witness and Shekhar got frightened and started towards the tempo. At that time, they noticed one lady coming from the southern side and she was requesting the assailants not to assault her brothers. Then, he and Shekhar in the tempo went towards Sasane Nagar. At Sasane Nagar, they unloaded the goods. While coming back, they noticed a crowd and the police at the place of the incident, but the injured were not there. They returned to their house.
This witness was put to a long cross-examination, but nothing worthwhile to help the defence could be elicited from him. Discussing his cross-examination would not be necessary, in view of the fact that the trial Court has not believed him for two reasons: (1) that Shekhar, who was accompanying him and who had booked his tempo, was not examined either in the Court or by the Police; and Shekhar was kept back, therefore, this witness's presence at the place of occurrence becomes doubtful. (2) That the trial Court also found that even in the complaint lodged by the complainant, there was no mention about this witness along with Shekhar, though Yogesh, as a matter of fact, in his cross-examination, had stated that Shekhar and Mahesh were not known to him.
18. P.W. 19, Aslam Ahmad Shaikh, is a property dealer, who stated that he had sold one flat to Jalinder Singh, for which advance had been paid, but final sale-deed had not been made, as the balance was not paid and Flat No. 6, of B Type, was yet not sold, since it had been kept for Jalinder Singh.
19. P.W. 20, Hemlata Sukhdeorao Sherekar, was in-charge of Bhairoba Nala Police Chowky under the jurisdiction of Wanowarie Police Station. At 9.30 a.m. on 19th July, 1999, she had gone to Wanowarie Police Station, as D.C.P. was to visit the police station. Shri Jagannath also came to the police station. At 12.30 noon, P.S.O. received message on telephone from the Control Room that maramari was going on in Ramtekdi area, and, therefore, the staff should be sent to Ramtekdi. PSO gave information of that message to PI Irani. When this message was received by Irani, all police officers were together with DCP Jagannath. Immediately, PI Irani, she, PSIs Takawale and Pathan and other staff, by police van, proceeded to Ramtekdi. While they were proceeding towards Ramtekdi by SRP Road, they noticed one scooter lying in front of Pappu Garage. They stopped the van near the spot. They came out of the van and visited the spot and noticed blood spread on Kachha road. Scooter was also found lying there. One red colour cap was also found lying on the spot. At that time, no one was present at the spot. After their arrival on the spot, the crowd assembled there. PI Irani told her that injured Dashrath and Sairam had been shifted to Sassoon Hospital by their relatives. Therefore, she should visit Sassoon Hospital and should make arrangements of medical aid to them. On the said directions, she and P.C. Dhumal left the spot and went to Wanowarie Police Station. Then on her motor cycle, she and Dhumal went to Sassoon Hospital. She directly went to CMO's Office. On inquiry, CMO informed her that Dashrath expired before giving any treatment and injured Sairam was admitted in Ward No. 9. Then, she, along with constable Dhumal, visited Ward No. 9 where Sairam was admitted. Dr. Shal, P.W. 17, was present in Ward No. 9. Dr. Shal disclosed to her that Sairam was admitted in same ward and treatment was going on. However, he asked her to issue a yadi for treatment to Sairam. In Ward No. 9, she prepared two yadies or letters of request addressed to the doctor for giving treatment, which were handed over to Dr. Shal. Exhibit 127 was the yadi issued by her for treatment to Sairam. In her presence, the doctor recorded history of assault as 'assault by swords at 1 p.m. near Gharpadigaon'. She did not give such a history before Dr. Shal. She also informed Dr. Shal that the patient was not brought by her nor she gave history of assault then how he had recorded such a history in the case papers. The doctor told her that by such entries there would be no problem. Dr. Shal immediately issued a certificate stating that injured Sairam, who was admitted in Ward No. 9, was unconscious. Then she came out of Ward No. 9 and came to CMO's Office. From his office, she contacted PI Irani on telephone and gave intimation that Dashrath was already dead and Sairam was admitted in Ward No. 9. The doctor has issued certificate that Sairam was unconscious. On telephone, PI Irani ordered her to prepare inquest report of the dead body of Dashrath. She also informed him that a mob of about 50 relatives of Dashrath had assembled in the hospital and there is also a problem of law and order and Irani ordered her to prepare inquest and also look after the law and order problem. He also ordered her that if some one was present in the hospital and claimed to be eye witness, therefore, he should be sent to police station. After that, she went to the mortuary in Sassoon Hospital. She saw the dead body of Dashrath. Yogesh Pillai identified the dead body of Dashrath. At that time, Yogesh Pillay told her that Dashrath was assaulted by Didisingh Kalyani and his brother and in that incident Yogesh also sustained injury and he told her that he wanted to lodge the complaint of that incident. She advised him that he should first take treatment about the injury on his head and then he should go to Wanowarie Police Station and lodge information with PI Irani because she was busy in preparing the inquest and to maintain law and order. Then she prepared the inquest panchanama in between 2.15 and 3.15 p.m. Exhibit 82 shown to her is the inquest prepared by her and it bore her signature. Yogesh Pillai was with her up to 3.45 p.m. but she could not say when he went to the police station to lodge the complaint. Then she made a letter of request to the Dean, Sassoon Hospital, Pune, for collection of blood sample of Dashrath for the purpose of blood grouping. Then she gave dead body of Dashrath in the custody of P.C. Kulkarni. The body was sent for post mortem along with a form with a request to perform post mortem. Exhibit 45 was the relevant form. After post mortem, the doctor issued advance certificate about the cause of death of Dashrath. Exhibit 46 was the certificate. Thereafter, she also executed certain other documents like Exhibit 132.
20. Cross-examination was put only to show some omissions and commissions, and she stated that it was not correct to suggest that she, Irani and other staff directly went to the bhangar shop of Londhe and noticed a mob of 200 -300 persons pelting stones on the shops. Since the defence of the accused was that there was a mob attack, which had resulted in the death of the two persons, therefore, she was put to cross-examination to say that there had been some mob violence. However, it was denied by the witness and she was of the opinion that there was a major law and order problem, as people had assembled after the occurrence.
21. P.W. 21, Laxman S/o. Shankar Dhumal, was attached to Wanowarie Police station at the relevant time when P.I. Irani was the in-charge of the police station. Irani had expired on 19th May, 2001. This witness was a Writer Constable, and as such, it was his duty to do the work directed by the Police Inspector. On 19th July, 1999, the D.C.P. of the zone had visited the police station; and all officers in the police station attended the meeting. This meeting was held in the chamber of the Police Inspector. When the meeting was on, P.I. Irani came out of the chamber and asked me and P.S.I. Sherekar to sit in the van, as he wanted to go immediately to Ramtekdi, as maramari was going on in that area. Then, he, PSIs Pathan, Kulthe, Takawale and Sherekar sat in the government jeep along with Irani. By Solapur Highway, they came to Ramtekdi Bus Stop. They noticed one Kinetic Honda Scooter in front of Pappu Garage on S.R.P. Road. One red colour cap was lying near the scooter. They stopped near the spot and came out of the jeep. They noticed a pool of blood. Many citizens came towards them. Irani made inquiries. Irani told Mrs. Sherekar that two persons have been assaulted by swords and they have been shifted to Sassoon Hospital by relatives and she should proceed to that hospital. The witness was asked to accompany PSI Sherekar. She told him that first they should go to the police station, and from there, they would proceed to the hospital by her vehicle. Then, he and the PSI went by rickshaw to Wanowarie Police Station. Then he and Sherekar, on her motor cycle, went to Sassoon Hospital. This witness then gave the details which had already been given by other witnesses, who were associated with the investigation. This witness was also put to a long cross-examination.
22. P.W.22, Fakkadrao S/o. Vitthalrao Shinde, was also attached to the police station as an Assistant Writer Constable. He was absent on the day of occurrence, but he was called to the police station, and he accompanied Irani to Ramtekdi area.
23. P.W. 23, Ankush Deorao Patil, is another Police Constable attached to the police station, who also accompanied the Police Inspector.
24. P.W. 24, Dinkar S/o. Nivrutti Pawar, was the Police Inspector attached to Wanowarie Police Station. When he took up the investigation of the case, he found that charge-sheet had been filed against 6 accused persons and one of the accused by name Jalinder Singh was absconding. The case had been committed to the Sessions Judge and was pending before the Additional Sessions Judge. Subsequently, an application was made on 13th April, 2000 before the Court with a request to grant permission for further investigation. The Court granted him permission on 17th April, 2000. Before this crime, many other cases were found registered against the accused persons. On that basis, he formed an opinion that the said offences had been committed by these accused collectively, and they were the members of an organised syndicate. Against these accused, chapter proceedings were also started. Jalinder Singh was arrested in Crime No. 112 of 1999 of Vishnupura Police Station in Thane District for the offences punishable under Sections 457 and 380, I.P.C. When he was informed about that, then he got transfer warrant and obtained Jalinder Singh's custody on 25th May, 2000. Head Constable Mr. Shinde was deputed to bring the accused from Kalyan under transfer warrant issued by Cantonment Court. The witness admitted the relevant documents.
25. The main contention of the learned senior counsel for the defence is that the Court should not have relied on the testimonies of P.Ws. 2 and 4; and if their testimonies are disbelieved, then, the conviction could not be upheld. The learned senior counsel submits that P.W. 2 is the nephew of deceased Dashrath and P.W. 4 is the sister of deceased Dashrath. The testimony of these witnesses cannot be disbelieved merely on the ground that they were related to one of the deceased, particularly when their testimony stood the scrutiny of cross-examination and was corroborated by other evidence. Although the learned senior counsel pointed out certain discrepancies in their evidence and contradictions inter se, but we have found that the discrepancies or contradictions pointed out are natural. The injury suffered by P.W. 2 was, according to him, a result of an injury while he was trying to save one of the deceased, but the learned senior counsel submits that Injury Certificate, Exhibit 41, shows the history given to the doctor, in which it is stated that the injury had been caused by an iron-sheet. On the basis of this discrepancy, we do not think the testimony of P.W. 2, who was the most natural witness, would be disbelieved. It is not sure whether the history given to the doctor was by P.W. 2 or by somebody else, and one can also imagine the state of mind of this witness at that time. He had seen the killings with his own eyes. He had got injury himself, and he might not have been able to make a differentiation between a sword and an iron-sheet at that point of time. It may be pointed out that this witness had stated that he wanted to get a visa. Therefore, he had to meet one of the deceased. He was going to get the visa, but he did not point out as to which country he intended to visit. This hardly can be a reason to disbelieve the testimony of this witness.
26. It is also submitted that P.W. 4 contradicted the testimony of P.W. 2, as she denied that he reached the spot. When she was at the spot, P.W. 2 arrived, and it is submitted that if this witness was believed, then P.W. 2 could not be believed that he was an eye witness to the incident. We have noted down the testimony of P.Ws. 2 and 4 in detail. It appears that P.W. 4 reached the place of occurrence almost immediately when the incident took place and P.W. 2 was already there. Maybe, P.W. 4 saw P.W. 2 after some time, as there was a melee.
27. Another important witness was P.W. 18, but he was disbelieved by the trial Court for reasons which we have mentioned hereinabove. Even if we all disbelieve P.W. 18, even then, the testimony of P.Ws. 2 and 4 is unimpeachable, as it is further corroborated by the testimony of the doctors who examined the deceased persons and also P.W. 2. The doctors, who conducted the post mortem, have given the long list of the injuries sustained by the deceased persons. Most of the injuries are incised wounds, and one of the deceased had most of the injuries on his head or neck, which suggest that the only aim and purpose of the accused persons was to commit a murder.
28. Another corroborative piece of evidence was that there was animosity between the accused and the deceased, as a case had been filed by the deceased against the accused, and the accused were pressing him to withdraw it.
29. The other defence, which was sought to be put forth by the learned senior counsel appearing for the accused persons was that there was a riot in the Ramtekdi area, during which, perhaps, the deceased got killed. In this case, he relied on evidence of the Investigating Officer and police officers accompanying him. He also relied on a Station Diary entry and Log Book entry of wireless. This entry shows, 'today evening at about 12.20 to 12.30 p.m. I came to know that my brother Dashrath was attacked by means of sword. On learning about it, I immediately went running towards the Tadi Gutta near Ramtekdi bus stop and I found that my brother was lying in a pool of blood opposite Pappu Garage.' It is proved that the Investigating Officer and the police constable have stated that there was a meting in the police station when information was received that there was a maramari in Ramtekdi area.
30. So far as the evidence is concerned, it further corroborates the case of the prosecution that there was maramari and 7 people had attacked two people with swords. Therefore, we have no doubt in our mind that an 'unlawful assembly' under the Indian Penal Code had been constituted by the accused persons, and they attacked with several swords the deceased persons, which resulted in their deaths.
31. For the above reasons, we do not find merit in Criminal Appeal No. 655 of 2002 filed by the accused persons, which is accordingly dismissed.
32. We have discussed the evidence of material witnesses in detail, and we do not find that there was any evidence to connect the accused with other offences for which they were charged and for which they were acquitted by the trial Court. Therefore, Appeal No. 892 of 2002 filed by the State is dismissed.