J U D G M E N T (Per A.B. Chaudhari, J.) :
1. Being aggrieved by the judgment and order dated 29.4.2010 passed by the Special Judge & Additional Sessions Judge, Nagpur, in Special Case No. 19 of 2004, convicting and sentencing the appellants in these appeals to imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer rigorous imprisonment for two months for the offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentencing them to undergo imprisonment for five years and to pay fine of Rs.3,000/-, in default to suffer rigorous imprisonment for two months, for the offence punishable under Section 307 read with Section 149 of Indian Penal Code, so also sentencing them to suffer rigorous imprisonment for six months and to pay fine of Rs.500/- in default to suffer rigorous imprisonment for ten days for the offence punishable under Section 147 of Indian Penal Code, and sentencing accused no.2, 3 and 6 to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/- in default to suffer rigorous imprisonment for one month for the offence punishable under Section 148 of Indian Penal Code, the present appeals were filed by the respective appellants.
2. FACTS :
It is the case of the prosecution that complainant Ishwar Thaokar (P.W.3) had, earlier to the main incident, made a grievance with the accused persons, and in particular accused no.4, that the construction of compound wall of Hanuman temple was on his land and the pit that was dug was in his land. The construction was stopped for some time by P.W.8 Mayabai Borkar, who was the Sarpanch of the village. Similarly, deceased Dilip Bhowate, his brother Ravindra and his father had a grievance that the Gobar Gas Plant belonging to them was likely to be affected by the construction of wall. It appears that the aggrieved persons, namely Ishwar, his brothers Ravindra and Prabhakar and Dilip and his brother Ravindra Bhowate were having grievance together over the construction of temple wall.
3. After the first incident took place, the main incident took place in the evening of 16.6.2004 between 5-30 p.m. to 6 p.m. In one of the earlier incidents, P.W.4 Ravindra was manhandled by the accused persons and abuses were given by the accused persons.
4. Deceased Dilip had gone to the market at Kuhi and when he returned in the evening the accused persons started assaulting him, his brothers Pradip and Ravindra with sticks and injured all of them and they collapsed on the ground. Dilip was seriously injured and all of them were lying on the ground. After about half an hour, the police patil came and shifted all of them to the hospital, initially at Primary Health Centre Kuhi and thereafter at Medical College and Hospital, Nagpur, for treatment. During the course of treatment Dilip died.
5. Police Inspector Bante recorded the statement of P.W.3 Ishwar, prepared the F.I.R., registered the offence and proceeded with the investigation. Upon completion of investigation, he filed charge-sheet in the court.
6. Prosecution examined as many as 15 witnesses and closed its case. The defence did not examine any witness. The defence was that the accused persons had not committed any offence. The deceased and his brothers- Ishwar, Ravindra and Prabhakar had been moving in the village under the influence of alcohol and Dilip Bhowate attacked accused no.3 Yogesh by means of a scissors on his chest and caused serious injury on his chest and, therefore, the villagers had assaulted all these persons including the deceased. The trial Court after appreciating the evidence on record held the accused persons guilty and convicted and sentenced them, as aforesaid.
7. In support of the appeals, Mrs.Neeta Jog and Mr.C.R. Thakur, learned counsel for the respective appellants, made the following submissions - (i) the alleged eye witnesses relied upon by the prosecution belong to the groups of Ishwar Thaokar and Bhowate who had been raising a dispute in respect of erection of compound wall of the temple. There was enmity amongst the two
groups, and all these witnesses being interested witnesses and on inimical terms, the court below erred in accepting their evidence without keeping in mind the above aspects.
(ii) prosecution failed to prove that there was unlawful assembly. It also failed to prove the common object, which is the requisite for constituting an unlawful assembly for committing an offence. The court below, therefore, erred in holding the appellants guilty of forming an unlawful assembly.
(iii) the evidence of the alleged eye witnesses P.W.4 Ravindra Thaokar, P.W.5 Prabhakar Thaokar, P.W.6 Pradeep Bhowate, P.W.7 Shobha Bhowate, P.W.8 Mayabai Borkar and P.W.9 Vandana Bhowate was liable to be discarded in view of the material omissions in their evidence going to the root of the matter and thus throwing a serious doubt about the prosecution story. There are omissions also in the evidence of these eye witnesses.
(iv) There is inconsistency in the evidence of all these witnesses and there is even exaggeration that a knife was utilized in the main incident.
(v) The prosecution story is shrouded with mystery which has not been revealed by the prosecution, inasmuch as though the names of the accused persons were allegedly known to the police officer who had gone to the spot, about which he admitted in his evidence, were not mentioned in Exs. 152 and 153 or Sana entry No.26 and 29 at Ex.129.
(vi) The delay of 6 1/2 hours in lodging the F.I.R. was fatal to the prosecution because the police officer allegedly knew the names of the accused persons. There is therefore reason to believe that the F.I.R. was manipulated. There was no reason for the police officer not to disclose the names of the accused persons when the entries were recorded. This give a serious doubt to the prosecution case and false involvement of the accused persons subsequently. This is very important feature which has been discarded by the learned trial Court. The prosecution story, therefore, becomes wholly doubtful and the benefit of doubt was required to be extended to the accused persons.
(vii) P.W.6 Pradeep Bhowate admitted in his examination-in-chief that he and his family members had good relations with the accused persons and there was no dispute. That being so, there was no reason why the accused could be said to have attacked the deceased and others, that too for no reason. The prosecution did not lead any evidence of motive.
(viii) the prosecution deliberately suppressed the medical evidence regarding injury to accused no.3 Yogesh and it was for the prosecution to prove in fairness the medical evidence in respect of the injury caused to accused no.3 Yogesh by Dilip by means of scissors on his chest. The police officer admitted that he had in fact seen the injury on the chest of Yogesh and had even sent him for medical examination and had also received the medical report. Despite this position, the prosecution did not produce and prove the medical report in respect of Yogesh and, therefore, adverse inference against the prosecution was required to be drawn, as the prosecution was not willing to unfold the genesis of the true story.
(ix) the defence taken by the accused persons was probable and it is well settled legal position that the defence is not required to prove its case in rebuttal, and it is enough if the defence is probable. The court below however did not at all consider this principle of law and did not apply it and, therefore, on the preponderance of probabilities the trial court ought to have accepted the defence and ought to have acquitted the accused persons by giving them benefit of doubt.
(x) the name of accused no.2 is not to be found in the F.I.R. (Ex.65- printed F.I.R.) and, therefore, there is reason to believe that the name of accused no.2 Digamber was subsequently inserted. The role of accused no.1 Laxman and accused no.5 Mahendra is said to be of giving fist and kick blows and nothing more and it cannot be said that they were guilty of the offences in question. There is no evidence against accused no. 1 Laxman, accused no.2 Digamber and accused no. 5 Mahendra participating in unlawful assembly or sharing any common object.
(xi) the recovery of sticks is liable to be rejected. Non-explanation of injury on the person of accused no.3 Yogesh has resulted into the prosecution case being thrown out as highly doubtful.
(xii) Except Mayabai, there is no independent witness but the prosecution chose to examine the witnesses of the side of the deceased. Mayabai, who was examined, did not say about any assault on the deceased and, therefore, none of the accused could be held guilty of the offence of murder.
(xiii) The prosecution did not prove that there was unlawful assembly or that the accused persons shared a common object.
(xiv) In the alternative, learned counsel submitted that the offence would not be of murder and, at the most, would fall either under Section 304 Part I or Section 304 Part II of Indian Penal Code and the impugned judgment needs modification.
8. The counsel for the appellants relied on the following decisions -
(a) (2001) 7 SCC 148 Mahabir Singh v. State of Haryana.
(b) AIR 1976 SC 2263(1) Lakshmi Singh & ors. v. State of Bihar.
(c) AIR 1959 SC 1012 - Tahsildar Singh & anr. v. State of U.P.
(d) (2010) 3 SCC (Cri) 577 Prem Narayan & anr. - State of Madhya Pradesh.
9. Per contra, learned A.P.P. vehemently opposed the appeal and argued that the prosecution examined as many as seven eye witnesses to the incident and the evidence of these witnesses is clear, consistent and corroborative of each other. There is no reason why the evidence of these eye witnesses should be looked with suspicion. This is all the more so because these witnesses do not only belong to Bhowate group but they also belong to Thaokar group. The allegation made by the defence about partisan attitude of the witnesses will have therefore to be ruled out. The submission that the eye witnesses are interested witnesses will also have to be rejected since perusal of testimony of these witnesses will clearly show that even on careful scrutiny, their evidence cannot be rejected and the same is trustworthy.
10. The learned A.P.P. then argued that the prosecution has proved unlawful assembly and the assault with a view to kill Dilip Bhowate and others, as they came in a group armed with sticks, and the injury suffered by deceased Dilip, if seen, will show that the only intention was to cause his death. The case, therefore, would not fall within the category of culpable homicide not amounting to murder. He, therefore, prayed for dismissal of appeal.
11. CONSIDERATION :
We have heard learned counsel for rival parties at length. We have gone through the impugned judgment and order recorded by the trial Court. We have also gone through the evidence of the witnesses examined by the prosecution, and examined the documents which were proved by the prosecution. We proceed to record our reasons as under :
12. Ex.65 is the F.I.R. lodged by P.W.3 Ishwar Thaokar at Camp P.H.C.Kuhi on 16.6.2004. Looking to the F.I.R., about the incident proper which took place at about 5-30 p.m., we find that the informant stated that at about 5-30 p.m. when he and his brother Prabhakar went towards the temple they saw Dilip Bhowate and Pradeep Bhowate present. At that time (i) Yogesh, (ii) Balu, (dead) (iii) Mahendra and (iv) Devidas attacked all of them by means of sticks, as a result of which they suffered injuries on head and other parts of the body. He thus named only four accused persons present and assaulting them. At the end of the F.I.R., however while generalising about unlawful assembly, he added two names- Laxman Raghorte and Digambar Raghorte, but did not attribute any role to them specifically, and as to whether they were present or came later. That was, in our opinion, obviously with a view to effect constitution of an unlawful assembly. Thus the F.I.R. begins only with four above named persons being the assailants. We are aware that the F.I.R. is not a substantive piece of evidence but it will definitely be useful in separating the chaff from the grain while analysing in totality the evidence of all the eye witnesses examined by the prosecution.
The submissions about delay of 6 1/2 hours in lodging the F.I.R. and the Sanha entries 26 and 29 at Ex.129, Ex.152 and 153 about non-mention of names of the accused persons have been rejected by the trial Court and, in our opinion, rightly in para 15 of the impugned judgment. We do not find any need to record separate reasons.
13. P.W.3 Ishwar in his examination-in-chief deposed that accused no.2 Digambar, accused no. 3 Yogesh and accused no.6 Devidas were beating Dilip, Ravindra and Prabhakar with sticks and accused no.1 Laxman, accused no.4 Balu and accused no.6 Devidas were dealing fist blows. However, his statement that accused no.1 Laxman, accused no.4 Balu and accused no.6 Devidas were dealing fist blows and that Digambar was beating with stick is an omission duly proved. In other words, he refers to only accused no.2 Digamber, accused no.3 Yogesh and accused no.6 Devidas as the persons assaulting Dilip Bhowate with sticks. There is no mention of accused no.1 Laxman, accused no.4 Balu and accused no. 5 Mahendra delivering fist blows at all, as it is an omission.
14. P.W.4 Ravindra Thaokar states that at the relevant time all the accused had come but he states that accused no.2 Digambar, accused no. 3 Yogesh and accused no.6 Devidas had sticks with them with which they started beating him, Dilip Bhowate, Prabhakar and Pradeep. He also stated that all the accused started beating mother of Dilip Bhowate and his brother Ishwar. He again specifically stated that accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas were beating with sticks and other accused persons were beating by fist and kick blows. He, however, stated in para 11 of his cross-examination that he did not state that accused no.4 was present and had beaten by fist and kick blows. His evidence regarding accused no. 1, 4 and 5 is an omission (Para 11 of Marathi version) which has been duly proved. Thus, inference can be drawn that this witness named accused no.2 Digamber, accused no.3 Yogesh and accused no.6 Devidas as assailants and made improvement about accused 1,4 and 5.
15. P.W.5 Prabhakar Thaokar stated that accused no.2 Digamber, accused no.3 Yogesh and accused no.6 Devidas had come with sticks at the relevant time and other accused were with them. They all started beating him, Dilip, Pradeep and Ravindra. He described that accused no.1 Laxman, accused no.4 Balu and accused no.5 Mahendra had beaten him by fist blows and at that time Ishwar had come there who was beaten likwise. But these are the omissions in his evidence. Further, while describing about assault, he does not say that accused no.1 Laxman, accused no.4 Balu and accused no.5 Mahendra had at all assaulted the deceased Dilip Bhowate. Thus, he involves only three persons as assailants and not five or more.
16. P.W.6 Pradeep Bhowate is the brother of deceased Dilip Bhowate. In his evidence he stated that when his elder brother returned home from Kuhi weekly market, accused no.2, 3, 5 and 6 returned towards his shop who had sticks with them while accused no.5 had a knife with him. He then stated that all of them started beating Dilip Bhowate. First blow was given by accused Yogesh by means of a stick on the head of deceased Dilip. It is seen from the evidence that there is an omission regarding accused no.5 with the knife. It is seen that he has attributed the assault by sticks only to accused no.2, 3, and 6. The statement regarding the blow dealt by accused Yogesh on the head of the deceased is an omission duly proved. Thus it is seen that this witness says that four accused persons, i.e. accused 2, 3, 5 and 6, had returned to the shop with weapons, namely sticks and knife, and assaulted Dilip and others.
17. P.W.7 Shobha Bhowate stated in her evidence that she heard noise. At that time her son Dilip had returned from Kuhi weekly market. She stated that she saw all the accused, out of them accused no.2, 3 and 6 had sticks and they followed Dilip to his house. She stated that accused no.3 delivered a blow with stick on the head of Dilip, accused no.4 and 6 dealt with fist blows and accused no.5 had a knife. Her statement that accused no.5 assaulted her son Dilip with the knife is an omission. At any rate, it is seen from her evidence that she attributed the role of assault to her son Dilip by stick to accused no. 2, 3, 5 and 6 and by fist blows by accused no. 1 and 4.
18. P.W.8 Maya Borkar was the Sarpanch of the village. She is an independent eye witness. In her evidence, she deposed that when she reached the spot of occurrence, the quarrel was going on and accused no. 2, 3 and 6 had sticks with them. The deceased came on a bicycle. Thereafter, accused no. 2, 3 and 6 started assaulting P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W. 6 Pradeep by sticks and other accused by fist and kick. She is completely silent about any assault on Dilip by any of the accused.
19. P.W.9 Vandana Bhowate stated in her evidence that at the relevant time she was present at her house and she saw accused no.2, 3 and 6 beating deceased Dilip, her brother Pradeep by a long bamboo, and accused no.1, 4 and 5 were beating by fist and kick blows.
20. Having thus carefully analysed the above evidence of these several eye witnesses, we have no hesitation in coming to the conclusion that there is a consistent evidence about assault by sticks on Dilip Bhowate- the deceased by accused no.2 Digambar, accused no. 3 Yogesh and accused no.6 Devidas as deposed by P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar, P.W.6 Pradeep, P.W.7 Shobha and P.W.9 Vandana. Similarly, the evidence of P.W.8 Mayabai, who is an independent witness, shows that accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas had assaulted P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep with sticks. We have no difficulty in believing these witnesses to the above extent and the said evidence does not suffer from any infirmity. We reject the submissions that these witnesses are interested witnesses and, therefore, their testimony should be disbelieved. We have kept in mind the well settled legal position that testimony of interested witnesses should be carefully scrutinized; and that evidence of such witnesses cannot be rejected merely because they are `related' or interested.
21. To repeat, we find that P.W.3 Ishwar who lodged the F.I.R. immediately after the incident had described that only four accused were present and had attacked and assaulted Dilip and Pradeep by means of sticks. At the end of the writing of the F.I.R., he however simply added two names Laxman (accused no.1) and Digambar (accused no.2) without specifying whether they were already present or wherefrom they came and what role they played. If the sworn testimony of all the eye witnesses is carefully examined, there is an attempt on the part of almost each witness to effect constitution of unlawful assembly, but all that is by way of improvement and thus infirm. We have, thus, no hesitation in rejecting the prosecution case that there was an unlawful assembly.
22. To conclude, we find that there was no unlawful assembly and accused no.2, 3 and 6 were the assailants who assaulted deceased Dilip, P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep with sticks. We have preferred to place reliance on the evidence of P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep as they were the persons who saw the assault on Dilip while they were also being assaulted at the same time. We have, therefore, not preferred to press into service in entirety the evidence of P.W.7 Shobha and P.W.9 Vandana. We find the evidence of P.W.3 Ishwar, P.W.4 Ravindra and P.W.5 Prabhakar well corroborated in respect of assault by accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas only by sticks. We then find that P.W.6 Pradeep stated in his examination-in-chief that the first blow of stick was dealt by accused no.3 Yogesh on the head of deceased Dilip Bhowate. But this is an omission amounting to contradiction
duly proved and this omission was in the statement under Section 161 of Code of Criminal Procedure as well as in the supplementary statement, vide para 6 of his evidence. In the light of the above discussion, since all other eye witnesses have not specified that Yogesh had given a blow of stick on the head of the deceased, but generally deposed that accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas had assaulted the deceased and P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep by sticks, it is not possible for us to come to the conclusion that it was accused Yogesh who delivered fateful blow on the head of the deceased. The medical evidence shows that the cause of death of Dilip was due to intracranial haemorrhage and fracture of skull bone due to head injury. Thus, in our considered opinion, accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas having assaulted deceased Dilip as well as witness P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep in concert with sticks, all these three accused persons are responsible for the death of Dilip and for the injuries caused to P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep.
23. We further find from the evidence that deceased Dilip had absolutely no role to play nor he was present nor his name was taken anywhere nor he was even remotely connected with the first incident which took place at about 5 p.m. near the temple. The prosecution has not led any evidence as to why deceased Dilip could be targeted by the accused party. There is no satisfactory evidence led by the prosecution to show that the accused party had any reason, muchless specific reason, to put an end to the life of Dilip- the deceased. To our mind, therefore, the assault by accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas with sticks on Dilip and others was with an intention to teach a lesson for their interference in the construction of temple wall. There is no satisfactory evidence to show that they had any requisite intention to kill all of them or any of them for any specific or special reason. We, thus, find that accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas had no intention to commit murder of Dilip, but they had full knowledge as to the consequences of assaulting Dilip and others with sticks. All the three, i.e. accused no.2 Digambar, accused no.3 Yogesh and accused no. 6 Devidas, were together in doing this act and, in our opinion, these accused persons are liable to be held guilty of the offence of culpable homicide not amounting to murder. Looking to the medical evidence and ocular testimony of the witnesses, we hold them guilty of the offence punishable under Section 304 Part I of Indian Penal Code.
24. As discussed above, there is evidence on record to show that accused no.2 Digambar, accused no.3 Yogesh and accused no. 6 Devidas also assaulted P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep. But, as earlier held, there is no satisfactory evidence on record to show that the accused persons had a requisite intention to attempt to commit murder of any of the witnesses (P.W.3 to P.W.6). The trial Court has held the accused persons guilty of the offence punishable under Section 307 of Indian Penal Code for assault on P.W.3 to P.W.6 with which, for the reasons stated above, we differ and we hold that accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas are guilty of the offence punishable under Section 326 of Indian Penal Code for causing grievous hurt to P.W.3 Ishwar, P.W.4 Ravindra, P.W.5 Prabhakar and P.W.6 Pradeep by means of sticks.
25. The defence that was taken before us was that deceased Dilip and his brothers Ishwar, Prabhakar and Ravindra had been moving in the village under the influence of alcohol. Deceased Dilip, being a tailor, had attacked Yogesh with scissors and caused serious injuries on his chest and that is why the villagers had assaulted these persons including the deceased. We have carefully considered the defence that was taken before us. Upon going through the entire evidence and the cross-examination of the witnesses, we find that there is hardly any material on record to support the theory of defence. We are not satisfied with the cross-examination on the point of defence and rather we find that no witness has even remotely supported the defence.
26. The submission that the prosecution failed to explain the injuries on the person of accused no.3 Yogesh does not appeal to us. As a matter of fact, the appellants did not make any attempt to show what nature of injuries were in fact suffered by accused no.3 Yogesh, as alleged, by adequate proof. To say that prosecution ought to have examined the witness to prove the alleged injury to accused Yogesh is not correct since the legal position in this behalf has been well settled in several decisions. The decisions cited by the learned counsel for the appellants on this point, in fact, do not lay down the law that in each and every case the burden of proof would be on prosecution to prove the injuries caused to the accused persons, if any, and that in each and every case adverse inference should be drawn against the prosecution.
27. For the reasons stated hereinabove, we modify the judgment and order recorded by the trial Court and make the following order.
(i) All the appellants/original accused no.1, 2, 3, 5 and 6 are acquitted of the offence punishable under Sections 147, 307 read with Section 149 and 302 read with Section 149 of Indian Penal Code.
(ii) Appellants/original accused no. 2, 3 and 6 are acquitted of the offence punishable under Section 148 of Indian Penal Code.
(iii) Accused no.1 Laxman, and accused no.5 Mahendra are acquitted of the offence punishable under Sections 307 and 302 of Indian Penal Code.
(iv) The finding of conviction recorded by the trial Court against the accused persons is set aside and instead we hold accused no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas guilty of the offence punishable under Section 304 Part I read with Section 34 of Indian Penal Code, so also under Section 326 read with Section 34 of Indian Penal Code.
(v) Accsued no.2 Digambar, accused no.3 Yogesh and accused no.6 Devidas are sentenced to undergo rigorous imprisonment for eight years and to pay fine of Rs.5,000/- each, in default to suffer rigorous imprisonment for two months, for the offence punishable under Section 304 Part I read with Section 34 of Indian Penal Code.
(vi) Accused no. 2 Digambar, accused no.3 Yogesh and accused no.6 Devidas are sentenced to suffer rigorous imprisonment for five years and pay fine of Rs.3,000/- each for the offence punishable under Section 326 read with Section 34 of Indian Penal Code.
(vii) Accused no.1 Laxman and accused no.5 Mahendra being in jail, be set at liberty. Fine amount, if paid, by them be refunded.
(viii) Both the sentences shall run concurrently. Criminal Appeal Nos. 284/10 and 285/10 stand disposed of.