Bombay High Court
Damodar Joma Mokashi vs State Of Maharashtra on 10 April, 2012
Author: B.R.Gavai
Bench: B.R.Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 761 OF 1990
1. Damodar Joma Mokashi, age 45,
2. Manohar Pandurang Gavand, age 49,
3. Namdeo Janardan Gavand, age 25,
4. Kashinath Hiraji Patil, age 40,
5.
Vijay Arjun Joshi, age 29,
6. Bhaskar Hiraji Patil, age 41,
7. Balkrishna Pandurang Gavand, age 35,
8. Shivram Marya Gavand, age 39,
9. Pandurang Halya Gavand, age 61,
10. Nana Raghunath Gavand, age 35,
11. Motiram Hasuram Gharat, age 42,
12. Raman Gopal Gavand, age 40,
residing at Pandiv, Taluka Uran,
District- Raigad. ... Appellants.
V/s.
State of Maharashtra. ... Respondent.
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WITH
CRIMINAL APPEAL NO. 865 OF 1990
State of Maharashtra. ... Appellant.
V/s.
1. Laxman Sudhaji Patil,
Age 36 yrs. R/o Navghar
Taluka-Uran, Dist- Raigad.
2. Pradip Damodar Mokashi,
Age 22 yrs. R/o Pandive,
Taluka- Uran, Dist- Raigad.
3. Parshuram Harischandra Gavand, Age 23 yrs.
4. Babulnath Sahadeo Gharat, Age 30 yrs.
5. Joma Masnya Gavand,
Age 56 yrs, R.Nos.3 to 5 resident of
Pirkon, Tal. Uran, Dist- Raigad.
6. Maniram Hasuram Gharat, Age 29 yrs.
7. Eknath Rama Mhatre, Age 19 yrs.
8. Shravan Mahadeo Gavand, Age 50 yrs. (Abated)
9. Kashinath Raghunath Gavand, Age 37 yrs.
10. Pundalik Haribhau Gavand, Age 27.
11. Baliram Ramdas Gharat, Age 22.
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12. Bhargav Haribhau Mhatre, Age 23.
13. Balkrishna Hari Gavand, Age 25. (Abated)
14. Maniram @ Manohar Kashinath Gavand,
Age 20.
15. Gajanan Dinkar Gavand, Age 25. (Abated)
16. Narayan Baburao Gavand, Age 23.
17. Waman Balaram Gavand, Age 31.
18.
Baburao Shankar Gavand, Age 41.
19. Gopal Ramchandra Patil, Age 47
20. Vasudeo Jagannath Gavand, Age 26 (Abated)
21. Krishna Eknath Patil, Age 24.
Respondent Nos.6 to 21 resident of Pirkon,
Taluka- Uran, Dist- Raigad.
22. Namdeo Ramchandra Gavand, Age 34 (Abated)
23. Kashinath Poshya Mhatre, Age 28 (Abated)
24. Madhukar Pandurang Patil, Age 27 (Abated)
25. Jagannath Namdeo Patil, Age 28,
R/o Khopta, Tal.Uran, Dist-Raigad.
26. Harischandra Haribhau Govand, Age 35 yrs.
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27. Vijay Parshuram Patil, Age 28.
28. Kamlakar Ramchandra Gavand, Age 33. (Abated)
29. Ganesh Parshuram Patil, Age 20.
30. Janardan Parshuram Patil, Age 22.
31. Balkrishna Hasuram Gavand. Age 36 (Abated)
32. Shivram Hasuram Gavand, Age 21.
33. Krishna Dharma Gavand, Age 35.
34.
Datta Bala Gavand, Age 47.
35. Jayawant Haribhau Gavand, Age 21.
36. Raman Gopal Gavand, Age 32 (Abated)
R.Nos.22 to 24 and 26 to 36 resident of
Pirkon, Tal-Uran, Dist- Raigad.
37. Hasuram Baliram Patil, Age 36.
38. Sanjay Mahadeo Thakur, Age 19 (Abated)
39. Dattaram Hiraji Patil, Age 23.
40. Mahadeo Pandurang Patil, Age 31 (Abated)
41. Keshav Haribhau Gavand, Age 33.
42. Ramdas Hasuram Gharat, Age 44 (Abated)
43. Yemuna Pandurang Gavand, Age 51.
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44. Dilkhush Joma Gavand, Age 21 (Abated)
45. Tukaram Radhunath Gharat, Age 40.
46. Ganesh Joma Gavand, Age 23.
47. Naresh Shivram Patil, Age 25.
48. Haribhau Janardhan Gavand, Age 23.
49. Raghunath Halya Gavand, Age 66 (Abated)
50. Pandurang Halya Gavand, Age 58 (Abated)
51. Krishna Raghunath Gavand, Age 47.
52. Nana Raghunath Gavand, Age 47.
Respondent Nos. 37 to 52, R/o. Pirkon,
Tal. Uran, Dist- Raigad.
53. Raghunath Chandrakant Thakur.
Age 41, R/o Pandive, Tal-Uran,
Dist- Raigad.
54. Kisibai Chandraya Gavand, Age 41.
55. Tai Rajaram Gavand, Age 31.
56. Vasanti Vijay Joshi, Age 28.
57. Kusum Baliram Patil, Age 46.
Respondent Nos.54 to 57, R/o. Pirkon,
Tal- Uran, Dist- Raigad.
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58. Vinayak Pandurang Thakur,
Age 34, R/o. Khopat, Tal- Uran,
Dist- Raigad. (Abated)
59. Damodar Balaram Patil, Age 36.
R/o Pirkon, Tal. Uran, Dist- Raigad.
60. Ankush Dama Pardeshi, Age 31,
R/o. Chirner, Tal-Uran, Dist-Raigad (Abated)
61. Jaidas Sina Patil, Age 38 yrs.,
R/o Vasheni, Tal-Uran, Dist-Raigad (Abated)
62.
Harischandra Mahadeo Thakur, Age 27 yrs,
R/o. Pirkon, Tal-Uran, Dist-Raigad.
63. Vithabai Sahadeo Gharat, Age 53 (Abated)
64. Gopinath Dhanaji Patil, Age 35 (Abated)
65. Damodar Sahadeo Gharat, Age 33.
66. Parshuram Nahadeo Gavand, Age 47.
67. Rohini Pandurang Gavand, Age 26,
Respondent Nos.63 to 67 R/o. Pirkon,
Tal- Uran, Dist- Raigad.
68. Johu Manual Gomes, Age 22,
R/o. Santacruz, Bombay. ... Respondents.
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S.R.Chitnis, Senior Advocate with S.V.Kotwal i/b. Sunil Kale
for the appellants (in Cr.Appeal No.761/1990).
P.S.Hingorani, A.P.P. for the State in both appeals.
S.R.Chitnis, Senior Advocate with S.V.Kotwal i/b. C.R.Sonawane
for the respondents (in Cr.Appeal No.865/1990)
CORAM : B.R.GAVAI AND
SHRIHARI P. DAVARE, JJ.
DATED : 10th April 2012.
JUDGMENT. :
(Per B.R.Gavai, J.)
Appeal No.761/1990 has been filed by the appellant/ original accused Nos.2, 24, 25, 27, 33, 35, 45, 50, 70, 72, 83 and 44 being aggrieved by the judgment and order dated 11 th September 1990 passed by learned Second Additional Sessions Judge, Raigad at Alibag in Sessions Case No.69/1987 thereby convicting the present accused appellants for the offences punishable under section 302 read with section 34 of Indian Penal Code (I.P.C.) and sentencing them to suffer imprisonment for life and to pay a fine of Rs.1,000/- each in default to suffer R.I. for three months and also convicting appellant accused Nos.25, 44, 45, 72, 83 for the offence punishable under section 324 read with section 34 of I.P.C. and sentencing them to suffer R.I. for six months.
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2. Appeal No.865/1990 has been filed by the State being aggrieved by the findings of acquittal recorded by the learned Sessions Judge in the impugned judgment thereby acquitting accused Nos.2, 24, 25, 27, 33, 35, 44, 45, 58, 70, 72 and 83 for the offences punishable under sections 147, 148, 149, 307, 326, 325, 336, 395, 396, 397 and 120-B of I.P.C. The State is also aggrieved by the findings of acquittal recorded in so far as accused Nos.1, 3 to 23, 26, 28, 30 to 32, 34, 36 to 44, 46, 47, 49, 50, 54, 56, 57, 61, 63, 65, 67 to 72, 74, 77 to 80, 84 to 88, 90, 93, 94 and 96 to 98 for the offences punishable under sections 147, 148, 149, 203, 307, 326, 325, 324, 336, 395, 396, 397 and 120-B of I.P.C.
3. The prosecution case, in brief is that on 3rd December 1986 at about 6.30 a.m. a mob of about 250 persons gathered in Pirkon village including the 98 accused persons who were armed with deadly weapons like spears, Pharashis, swords, Burchis, sticks, acid bulbs and soda-water bottles etc. The allegation of the prosecution is that these accused attacked the persons residing in the village cruelly and in that they committed murders of 5 persons and injured 14 more persons with grievous injuries and damaged 44 houses. The motive behind the said crime is said to be a dispute between two groups belonging to different political parties over establishment of D.Ed.College at a particular place. The case of the ::: Downloaded on - 09/06/2013 18:24:22 ::: 9/24 761.90-apeal--
prosecution that the prosecution witnesses and victims were running said college at Pirkon, however, the accused wanted to shift it to the village Pandive. It is the case of the prosecution that accused No.87 was an ambitious political leader and he wanted the college exclusively under his control. It is alleged that the accused persons belong to Congress (I) Party whereas the prosecution witnesses belong to Peasants and Workers Party. After completion of investigation charge was framed vide Exh.114 for the offences punishable under sections 147, 148, 149, 307, 302, 326, 325, 324, 336, 397, 396, 395 and 120-B of I.P.C. The accused pleaded not to be guilty and claimed to be tried.
4. During the course of the trial, an application was filed on behalf of the Public Prosecutor that there was no evidence regarding active participation in the crime or any overt act on the part of 19 accused and prayed for their discharge. Therefore, learned Sessions Judge vide his order dated 20th February 1989 discharged accused Nos.48, 51, 52, 53, 55, 59, 60, 62, 64, 66, 73, 75, 76, 81, 82, 89, 91 and 95.
5. To substantiate the prosecution case, the prosecution in all examined 39 witnesses and also exhibited various documents. At the conclusion of the trial, learned Sessions Judge found that 12 accused were liable to be convicted and, accordingly, sentenced them ::: Downloaded on - 09/06/2013 18:24:22 ::: 10/24 761.90-apeal--
as aforesaid for the offence punishable under section 302. Learned Sessions Judge also found that 5 accused were liable to be convicted for the offence punishable under section 324 read with section 34 of I.P.C. The said five accused are also convicted under section 302. During the pendency of the present appeal, out of 12 convicted accused persons, 5 have expired and, as such, appeal stood abated against them. The present appeal is, therefore, pressed into service only for 7 surviving accused persons as aforesaid, namely, accused Nos.2, 24, 25, 27, 33, 72 and 83.
6. We have heard Shri Chitnis, learned senior counsel on behalf of the accused and Shri Hingorani, learned A.P.P. on behalf of the State.
7. Shri Chitnis, learned senior counsel appearing for the appellants submits that the prosecution case is full of loopholes. He submits that no blood stains were found in the Spot Panchanama though it is the case of the prosecution that the deceased were brutally assaulted with a deadly weapons. He further submits that there is no recovery of any of the alleged weapons used in the crime in question. He further submits that no blood stains were found on the accused. It is, therefore, submitted that the learned Sessions Judge has grossly erred in convicting the appellant- accused. Mr.Chitnis further submits that though there are various material ::: Downloaded on - 09/06/2013 18:24:22 ::: 11/24 761.90-apeal--
omissions and contradictions in the evidence of the prosecution witnesses, the learned Sessions Judge has not even referred to the same and rested the conviction on the basis of such evidence which cannot be said to be a trustworthy evidence. It is further submitted that the so called F.I.R., which was lodged at the instance of the complainant-P.W.1, cannot be treated as F.I.R. inasmuch as at the earlier point of time the police had received information regarding crime in question from one Shri Joshi, who happened to be a political leader belonging to the Peasants and Workers Party and who also happened to be the Upa-Sabhapati of the Panchayat Samiti at the relevant time. He, therefore, submits that the entire investigation is faulty and conviction cannot be rested on such evidence.
8. Shri Hingorani, learned A.P.P. appearing for the State, on the contrary, submits that in such sort of crime wherein hundreds of persons have taken part, it is not possible that the prosecution witnesses will pin-point minute details of the role played by each of the accused. He, however, submits that the witnesses have particularly identified the accused persons and only such of the accused persons who were particularly identified by the witnesses have been convicted by the learned Sessions Judge. He, therefore, submits that no interference is warranted so far as the order of conviction is concerned.
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9. In so far as the appeal on behalf of State is concerned, learned A.P.P. submits that when there is voluminous evidence regarding all the accused persons involving riots, the leaned Sessions Judge has erred in acquitting the said accused persons. He further submits that though there is also evidence against the other accused persons for their involvement in the offence punishable under section 302 and 307, the learned Sessions Judge has acquitted them. He, thus, prayed that the appeal filed by the State deserves to be allowed.
10. Though in all 5 persons have died in the incident, the learned Sessions Judge has come to the positive finding that in so far as 2 persons are concerned, there is no material to establish that any of the accused persons can be held responsible for causing their death. Learned Judge further held that in so far as 3 deceased persons viz. Vasant Dharma Gavand; Shankar Pandurang Joshi and Ganpat Mahadeo Gavand are concerned, there is sufficient evidence to establish that the present appellants along with 5 other accused who have died are responsible for the death of said 3 persons and, as such, convicted them for the offence punishable under section 302. The learned Judge has also found that out of 12 accused persons who have been convicted for the offence punishable under section 302, five accused persons are also responsible for causing injuries to P.W.9-Namdeo, P.W.19-Manohar and one Nama Patil and, as such, has ::: Downloaded on - 09/06/2013 18:24:22 ::: 13/24 761.90-apeal--
recorded finding of conviction against those accused persons for the offence punishable under section 324 of I.P.C.
11. We will first deal with the appeal filed by the appellant- accused. As such, for consideration of correctness of finding in so far as offence punishable under section 302 is concerned, we find that it would be proper to deal with the evidence in so far as three deceased persons are concerned independently.
12. In so far as deceased Vasant Gavand is concerned, the prosecution has relied on the evidence of P.W.7- Vijaya who is daughter of the deceased Vasant and P.W.8- Malati who is widow of the deceased. The evidence of Vijaya is at Exh.125. She states in her evidence that on the date of incident at about 6.00 a.m., the accused came to her house shouting and entered in the house breaking open the door at the rear side. She states in her examination-in-chief that deceased accused Bala Mandavkar, accused No.2, accused No.45, accused No.36, accused No.30, accused No.29, accused Janardan, accused No.25-Namdeo Gavand, accused No.l68, accused No.38, accused No.14, accused No.35, accused No.27, accused No.49, accused No.58, accused No.26, accused No.17, accused No.61, accused No.41 etc. entered their house. She states that accused- Bala Mandavkar threatened them that if they stand there, they would be shot dead. As such, she got afraid and hid ::: Downloaded on - 09/06/2013 18:24:22 ::: 14/24 761.90-apeal--
herself in the Padvi. It is stated that accused No.2 gave the very first blow of the Pharashi on the back side of his father's head; accused No.45 gave another blow on her father's leg; accused No.25 gave blow of sword on the thigh; accused No.58 gave Pharashi blow on his legs, accused No.27 amputated hands of her father; and accused No.35 gave blows on his hands. She further states that at about 10.00 a.m. police came to the village and she along with her brother went to the hospital with dead body of their father.
13. It is material to note that there are material contradictions and omissions in her evidence. In her statement before the police, she has stated that 30 to 40 more persons entered her house besides accused. However, she states in her evidence that she had not said so before the police. The said contradiction is proved by Exh.247. Moreover, there are two vital omissions in so far as actual incident of assault is concerned. Though, in the statement before the police, she has not given any details regarding assault made by the accused on her father, for the first time in her evidence before the Court she has stated as under:
".....I stated before Police that accused No.45 assaulted my father on his legs, accused No.25 gave sword blow on the thigh, accused No.58 gave Pharashi blow on legs and accused No.27 and 35 gave blows on the hands of my father. But why it is not mentioned in my statement I cannot say....."::: Downloaded on - 09/06/2013 18:24:22 :::
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It can, thus, be seen that there is material improvement in her evidence regarding role attributed to the accused regarding assault. There is another material omission in her evidence regarding accused- Bala Mandavkar. However, since the said accused is no more alive, reference to that omission is not necessary.
14. The another evidence in support of murder of deceased Vasant is of P.W.8- Malati who happened to be the wife of deceased Vasant. In her examination-in-chief, she has narrated the same thing as narrated by her daughter Vijaya (P.W.7). P.W.8 has deposed at Exh.126. There is material improvements in her evidence before the Court. Though she has not stated before the police that "Hya Bhadvyala Mara and cut into pieces and we are not satisfied by beating him once", she has stated the same in her evidence. The said improvement is also of vital nature. It is, however, material to be noted that she has categorically stated that there was pool of blood on the gunny cloth. However, in the Spot Panchanama which is at Exh.217, there is clear-cut mention in the following words:
".....The place where deceased Vasant Dharma Gavand was beat by accused is near middle piller of the said Othan. Blood stains were not noticed there....."::: Downloaded on - 09/06/2013 18:24:22 :::
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It can, thus, be seen that in the Spot Panchanama no blood stains were found at the place where the deceased Vasant alleged to have been beaten. The learned Sessions Judge has discussed regarding this evidence in paragraph-49 of his judgment. The only finding of the learned Judge is that in view of the specific allegations by these witnesses against accused Nos.2, 25, 27, 35, 45 and 58, they are held guilty of murder of deceased Vasant. Leaving aside discussing the material contradiction, omissions and improvements in the evidence of P.W.-7 and P.W.-8 there is not even reference to the same. In a case of offence punishable under section 302 of I.P.C. the least that the learned Sessions Judge was expected was to consider material contradictions, omissions and improvements in the evidence of these two witnesses.
15. In so far as deceased Shankar is concerned, the prosecution has relied on evidence of P.W.2 and P.W.3. P.W.2- Sunada, who is widow of deceased Shankar, states in her evidence that on the date of incident at about 6.30 a.m. accused Nos.33, 24, 83, 32, 12, 70, 69, 71, 72 and 11 entered into their house and other people had surrounded the house. She further states that accused No.33 and 24 were holding swords, accused No.83 was holding Burchi and all other accused were holding weapons. She states that accused No.33 gave a sword blow on the legs of her husband, accused No.24 gave sword blows on his legs, accused No.83 cut his legs with ::: Downloaded on - 09/06/2013 18:24:22 ::: 17/24 761.90-apeal--
Pharashi and all others started assaulting her husband Shankar. She has also stated that she attempted to save her husband by lying on his body but the accused pulled her off. It is material to note that in her cross-examination, she has specifically admitted that her two statements were recorded. It is further material to note that though she has stated that while making attempt to save the life of her husband her clothes were stained with blood, she did not show the same to the police. She has also stated that her husband was lying in pool of blood and there were also blood stains on the wall of her house. Her evidence appears to be totally unnatural inasmuch as she states in her evidence that after such heinous attack on her husband and after her husband was lying in pool of blood she prepared coffee for him. It is difficult to believe that a woman whose husband is assaulted in such a brutal manner would prepare coffee.
It is further material to note that though this evidence specifically states that her husband was lying in pool of blood and there were blood stains on the walls and floors of her house, in the Spot Panchanama it is specifically stated thus:
".....No blood stains of deceased and anything of accused is noticed there."
It can, thus, be seen that there is total contradiction in the Spot Panchanama and the evidence of this witness.
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16. Next witness in support of the murder of deceased Shankar is P.W.3- Kanchan who is daughter of deceased Shankar. Her evidence is at Exh.120. Her evidence is also almost of the same nature that of her mother (P.W.2). However, though in her evidence before the Court she has attributed specific roles to accused Nos.32, 12, 69, 71, 72, 11, 33 and 83, there is no mention about the same in her police statement which is clear from her following version from her evidence:
".....The names of accused No.32, accused No.12, accused No.69, accused No.71, accused No.72, accused No.11 are not mentioned in my Police statement. It is also not mentioned in my statement that accused No.33 gave sword blows on my father's head and accused No.83 amputed his leg....."
It is a clear improvement from the statement given by her before the police. The learned Sessions Judge has discussed this evidence in paragraph-50 of the judgment. The learned Judge relied on the evidence of these two witnesses and found that since these witnesses have identified and attributed the roles of accused Nos.33, 83 and 24, they are responsible for the murder of deceased Shankar.
However, learned Judge has again failed to take into consideration the contradictions and omissions in the evidence of the prosecution witnesses.
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17. This leaves us to the third deceased Ganpat Gavand. In so far as murder of deceased Ganpat is concerned, the prosecution has relied on evidence of three witnesses viz. P.W.4- Manohar; P.W.5- Suman and P.W.6- Parvati. P.W.4- Manohar is the son of the deceased. His evidence is at Exh.121. He has stated that accused Nos.24, 70, 69, 71, 11, 72, 12, 54, 32, 43, 21, 40, 39, 15, 22, 18, 20, 77, 57 etc. entered their house and they were holding weapons in their hands. It is stated that the accused No.24 was holding sword, accused No.70 was holding Gupti, accused No.72 was holding a spear, accused No.11 was holding Burchi and others were holding some or the other weapons. It is stated that accused Nos.57 and 77 were having on their head boxes of acid bulbs. It is alleged that accused No.34 gave sword blow on the head of his father deceased Ganpat, accused No.70 gave sword blow on the ribs of his father and accused No.72 gave spear blow on the body of his father. It is stated that the other accused were also assaulting his father with weapons. He stated that he was frightened and, therefore, he hid on the loft. He further stated that accused Nos.57 and 77 threw acid bulbs on his wife who was sitting with the child. He has further stated that accused No.15 threw acid bulb because of which sari of his wife was burnt. This witness states that though there were blood stains on the bed sheets, the police did not see the same. There are also material contradictions in his evidence which are marked portions as "A" and "B".
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18. In so far as P.W.5- Suman is concerned, she is sister-in-
law of deceased Ganpat. She states that she heard noise from her house and from the window she saw people entering the house of Ganpat with weapons. There are also material contradictions in her evidence which are marked portions as "A" and "B". The next witness in support of death of deceased Ganpat is P.W.6- Parvati, wife of the deceased. There are also material contradictions in her evidence which have been duly proved by the evidence of the Investigating Officer being portion marked "B", portion marked "C" and portion marked "D". In her evidence she has also stated that though her husband had received several injuries and though she fell on the body of her husband to save him, blood did not stick to her body or clothes. In her evidence she has also stated that there was considerable blood lying on the cot, bed and bed-sheet where her husband was sleeping, however, the police did not attach the same.
It can, thus be seen that her evidence was full of contradictions and inconsistencies. The leaned Sessions Judge has discussed this evidence in paragraph-51 of the judgment. Learned Judge finds that though P.W.5 does not allege anything about the specific overt act, however, the version of Manohar is corroborated by the version of Parvati, which supports the prosecution case that accused Nos.24, 70 and 72 are responsible for the death of Ganpat. Here again the learned Judge has not discussed the contradictions and omissions of the prosecution witnesses.
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19. It is not in dispute that all these seven witnesses on whose evidence the conviction under section 302 is based are the relatives of the deceased. No doubt that merely because the witnesses are interested or related to the deceased that is not the ground for discarding their evidence. But the evidence of such witnesses is required to be scrutinized with greater caution. As discussed hereinabove, the evidence of these witnesses is full of contradictions, omissions and improvements. Not only this, but the ocular testimony of these witnesses is not corroborated by any other evidence. On the contrary, ocular testimony is in contradiction with the Spot Panchanama. When all these witnesses have stated that the deceased were in pool of blood, in the Spot Panchanama no stains of blood were found at the places where the deceased were allegedly assaulted by the accused persons.
20. It is further to be noted that the learned Sessions Judge has found that the prosecution has failed to prove the case of riots and house breaking. The learned Judge has disbelieved the evidence of the prosecution witnesses in so far as it relates to riots and house breaking. However, on the basis of the same evidence, the accused have been convicted for the offence punishable under section 302 of I.P.C.
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21. In so far as the finding regarding offence punishable under section 324 is concerned, the learned Sessions Judge has relied on the evidence of P.W.11-Giridhar Mhatre and P.W.14- Rambhau Patil, P.W-15- Bhamabai Gawand, P.W.17- Sitaram Gavand, P.W.18- Nana Gavand, P.W.19- Manohar Patil, P.W.20- Krishna Mhatre and evidence of P.W.23- Vithabai Nana Patil. The learned Judge in the entire discussion running from paragraphs-56 to 66 found that there are material improvements in the evidence of these witnesses and also that the evidence of these witnesses is contrary to the medical evidence. However, the learned Judge came to the conclusion that evidence of these 14 witnesses does not inspire confidence except as against accused Nos.25, 44, 45, 72 and 83. It is difficult to understand when the learned Judge himself comes to the conclusion that the evidence of these witnesses is of such a nature which does not inspire confidence in so far as rest of the accused are concerned, how the same evidence can be considered so as to inspire confidence in so far as five accused are concerned. As already observed hereinabove, the learned Judge has come to the conclusion that all these witnesses have improved their versions and their evidence is contradictory to the medical evidence.
22. It is a settled position of law that the prosecution is required to prove the case beyond reasonable doubt. As already discussed hereinabove the conviction is based only on the ocular ::: Downloaded on - 09/06/2013 18:24:22 ::: 23/24 761.90-apeal--
testimony of the interested witnesses. No doubt, conviction could have been rested on the basis of ocular testimony of the interested witnesses, had their evidence been without any fault. However, as discussed above, their evidence is full of contradictions, omissions and improvements. As such conviction is rested only on such ocular testimony without there being any corroboration. As already discussed above, the other evidence other than ocular testimony falsifies the ocular testimony of the witnesses. We are, therefore, of the considered view that the prosecution has failed to prove guilt of the appellants- accused beyond reasonable doubt for the offence punishable under sections 302 and 324 of I.P.C. In view of the conclusion that we have arrived at, we do not find it necessary to refer to the other submissions made by Mr.Chitnis.
23. Coming to the appeal of the State, by now, it is a settled position of law that unless findings recorded by learned trial Court are either perverse or impermissible, it is not possible for this Court to interfere with the findings of acquittal. As already discussed above, we have come to the positive conclusion that the findings recorded by the learned Sessions Judge, in so far as conviction of the accused is concerned, are not sustainable in law. It can be seen that the findings of conviction, which were recorded by learned Judge in so far as 12 accused persons for the offence punishable under section 302 and in so far as 5 accused persons for the offence punishable ::: Downloaded on - 09/06/2013 18:24:22 ::: 24/24 761.90-apeal--
under section 324 of I.P.C. are concerned, they are based on ocular testimony of interested witnesses without there being any corroboration and also based on the evidence which is full of contradictions, omissions and improvements. We have held that the said evidence was not at all sufficient for upholding the conviction of the said accused. As such, there could be no reason to interfere with the findings of acquittal in so far as other accused are concerned in respect of which the learned Judge himself has found that there is no evidence to establish their complicity with the alleged incident. The appeal filed by the State is, therefore, without any merits.
24. In the result, Criminal Appeal No.761/1990 is allowed. The order of conviction and sentence is set aside. The accused are directed to be set on liberty. The bail bonds of the accused shall stand discharged.
Criminal Appeal No.865/1990 filed by the State is dismissed.
(SHRIHARI P. DAVARE, J) (B.R.GAVAI, J.)
Sanjay Nanoskar, P.S.
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