Bombay High Court
The State Of Maharashtra vs Maroti S/O Namdeo Shrirame on 30 March, 2010
Author: P.D. Kode
Bench: A.P. Lavande, P.D. Kode
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL CONFIRMATION CASE NO.2 OF 2008
WITH
CRIMINAL APPEAL NO.633 OF 2008
WITH
CRIMINAL APPEAL NO.89 OF 2009
WITH
CRIMINAL APPEAL NO.102 OF 2009
......
CRIMINAL CONFIRMATION CASE NO.2 OF 2008
The State of Maharashtra,
through Police Station Officer,
Ladkhed. .. Appellant
.. Versus ..
Maroti s/o Namdeo Shrirame,
Aged about 47 years,
R/o. Mozar (Ijara), Tah. Darwha,
District - Yavatmal. .. Respondent
Mr. T.A. Mirza, APP for Appellant,
Mr. R.R. Shrivastava, Advocate Appointed for Respondent.
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CRIMINAL APPEAL NO.633 OF 2008
Maroti s/o Namdeo Shrirame,
Aged 50 years, (In jail)
R/o. Mozar (Ijara), Tq. Darwha,
District - Yavatmal. .. Appellant
.. Versus ..
The State of Maharashtra,
through Police Station Officer,
Ladkhed, taluka Darwha,
Distt. Yavatmal .. Respondent
Mr. R.R. Shrivastava, Advocate Appointed for Appellant.
Mr. T.A. Mirza, APP for Respondent.
...
CRIMINAL APPEAL NO.89 OF 2009
State of Maharashtra,
through Police Station Officer,
Police Station Ladkhed,
District Yavatmal. .. Appellant
...Versus...
1. Gopikisan @ Om Parashram
Gadmade, Aged about 35 years,
(Ori. Accused No.3)
2. Parashram Bakaram Gadmade,
Aged about 72 years,
(Ori. Accused No.4),
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3. Purushottam Parashram Gadmade,
Aged about 40 years,
(Ori. Accused No.5) .. Respondents
Mr. T.A. Mirza, APP for Appellant.
Mr. H.D. Dangre, Advocate for Respondents.
CRIMINAL APPEAL NO.102 OF 2009
Vinod s/o Maroti Shrirame,
Aged Major, R/o Mozar (Ijara),
taluka Darva, District Yavatmal..
ig Appellant.
.. Versus ..
State of Maharashtra,
through P.S.O. Ladkhed,
taluka Darva, District Yavatmal. .. Respondent
Mr. R.R. Shrivastava, Advocate Appointed for Appellant.
Mr. T.A. Mirza, APP for Respondent.
...
CORAM : A.P. LAVANDE & P.D. KODE, JJ.
DATE OF RESERVING THE JUDGMENT : FEBRUARY 17, 2010
DATE OF PRONOUNCING THE JUDGMENT : MARCH 30, 2010
JUDGMENT :(Per : P.D. Kode, J.)
1. The aforesaid Confirmation Case No.2 of 2008 and appeals arise out of the judgment and order dated 16.6.2008 passed by learned Additional Sessions Judge, ::: Downloaded on - 09/06/2013 15:46:59 ::: 4 Darwha in Sessions Trial No.4 of 2005 convicting and sentencing accused nos.1, 2 and 3 as under :
Accused Convicted for Sentence
No. offence
1) Maroti i) u/s 302 IPC for Death and fine of Rs.
murder of Sunil, 1,000/- i/d S.I. for
Parashram and one month.
Chandrashekhar
-- do -- ii) u/s 324, IPC for R.I. for 3 years and
causing hurt to fine of Rs.500/- i/d
Lochana
Vishwasrao
PW8 and S.I. for 15 days.
Jawalkar
PW10
-- do -- Iii) u/s 452, IPC R.I. for 7 years and
fine of Rs.1,000/- i/d
S.I. for one month.
2) Vinod i) u/s 302, IPC for Imprisonment for life
murder of Sunil, Par and fine of Rs.
ashram and Sunil 1,000/- i/d S.I. for
Dhoot. one month.
-- do -- ii) u/s 324, IPC for R.I. for 3 years and
causing hurt to fine Rs.500/- i/d S.I.
Neminath PW5. for 15 days.
-- do -- Iii) u/s 452, IPC R.I. for 7 years and
fine Rs.1,000/- i/d
S.I. for one month.
3) u/s 324, IPC for R.I. for 3 years.
Gopikishan voluntarily causing
hurt to Neminath PW5
and acquitting accused nos.1 to 3 for commission of offences punishable under Sections 147, 148 of IPC and ::: Downloaded on - 09/06/2013 15:46:59 ::: 5 under Section 4 r/w Sec. 35 of the Arms act and under Section 135 of Bombay Police Act and so also acquitting accused no.4 Parasharam, accused no.5 Purushottam for commission of offence punishable under Section 147, 148, 302 r/w 149, 307 r/w 149 of IPC and u/s 4 r/w 25 of Arms Act and u/s 135 of Bombay Police Act.
2. The Confirmation Case No.2 of 2008 has arisen out of submission of proceeding of said trial to this Court for considering question of confirmation of sentence of death awarded by the trial Court to original accused no.1 Maroti. Criminal Appeal Nos.633 of 2008 and 102 of 2009 are preferred by original accused no.1 Maroti and accused no.2 Vinod respectively against conviction and sentences awarded to them. Criminal Appeal No.89/2009 has been preferred by State of Maharashtra against judgment and order of acquittal regarding original accused nos.3, 4 & 5.
The accused/appellants/ respondents in aforesaid appeals are hereinafter referred as per their status before the learned trial Court.
3. The brief facts giving rise to the said trial are as under:
::: Downloaded on - 09/06/2013 15:46:59 ::: 6API Dipak Gotmare (PW16) attached with Ladkhed Police Station on night patrolling duty on Pola festival day of 14.9.2004 had received information of quarrel having taken place at village Mozar. PW16 while proceeding to said place had seen one tractor proceeding to Police Station carrying five injured persons and had intimated Police Station for taking said injured persons for medical examination. PW16 at Mozar after learning that quarrel had occurred at Pola festival had been to the said place and had found blood and pieces of fingers cut lying near Otta of Suresh Bharti. PW16 after learning assault also having taken place at house of Sunil Jawalkar had been to said house and had seen Sunil in injured condition lying on broken door panel of house while injured Parashram Jawalkar in inner room and injured Chandrashekhar Bulbule in courtyard near Chamkora plant. PW16 had sent said three injured to hospital in one Minidoor and intimated his higher Officers about the incident.
4. Bhaskar Baiskar (PW4), brother-in-law of Sunil, had then given to PW16 oral report Exh.70 to the effect that while he had taken his bullocks at about 5.00 p.m. for ::: Downloaded on - 09/06/2013 15:46:59 ::: 7 Pola festival arranged in village Mozar, Sunil was sitting on Otta in front of the house of Shamrao Gadmade. A2 Vinod had assaulted Sunil by sword and Sunil had ran away through the house of Suresh Bharti. As PW4 had seen A2 assaulting Sunil, he along with his brother Neminath PW5 had been for pacifying A2. At that time PW4 had seen A1 Maroti with sword in Pola festival. A3 Om Gadmade assaulted PW5 by stick on his head. At the same time, A2 returned and gave a sword blow upon right leg of PW5 causing him injury. Hence PW4 had taken PW5 to their house.
After some time they had been to house of Sunil Jawalkar and had seen Sunil holding sword in the hand of A2. PW4 also attempted to take away sword from A2.
Many people had gathered . PW4 settled the dispute and as asked by him his brother-in-law Sunil went in the house. PW4 along with other persons came outside said house. A1 was present outside with a sword. People were pacifying him. PW4 went home. As PW4 was going towards his house, A1 and A2 rushed after him. A2 caught him and attempted to assault with sword. PW4 caught hold of both hands of A2 and held sword upwards. Thereupon A1 ::: Downloaded on - 09/06/2013 15:46:59 ::: 8 assaulted on back of PW4 with blunt edge of sword.
Thereafter, A1 and A2 intruded in the house of Sunil and dealt sword blows and caused grievous hurt to both Sunil and Parashram. Chandrashekhar Bulbule came for their rescue but A1 and A2 also assaulted and injured him with sword. They also assaulted Lochana PW8, Sunil Dhoot, Vishwas Jawalkar PW10 and Sau. Shashikala Jawalkar with sword and caused serious injuries to them.
A1 and A2 had assaulted and injured Sunil with swords upon suspicion of love affair in between Sunil and Pushpa- sister of A2. The other persons having attempted to rescue them, A1 and A2 had assaulted and grievously injured them with Sword. Sunil Dhoot, Parasram and Chandrashekhar died on the way to hospital.
5. PW16 after recording oral report of PW4, had deployed police persons on spot and taken PW4 to Ladkhed Police Station and had registered offence initially u/ss 452, 302, 307 r/w 34 of IPC against A1 to A3 and taken up the investigation.
::: Downloaded on - 09/06/2013 15:46:59 ::: 96. PW16 had drawn spot and seizure panchanama Exh. 65 of spot of incident shown by PW4 at Otta of Suresh Bharati, house of Sunil Jawalkar in presence of panch Viyanak PW2 and one more panch and seized samples of blood lying on both spots and samples of soil and so also cut fingers and blood stained mini-skirt seen lying on spot.
7. PW16 during night had arrested A3 ig under panchanama Exh.103. He had also erected a police chauki at village Mozar in front of house of Shriwallabha Dhoot. PW16 had arrested A1 and A2 after they had surrendered on 15.9.2004 at about 11.15 a.m. in said police chauki by drawing arrest panchanama respectively at Exh.111 and 112. He had then seized swords surrendered by A1 and A2 respectively under seizure memo Exhs.88 and 90 and so also their clothes stained with blood respectively under seizure memo Exhs. 89 and 91 in presence of panch Meshram PW12.
8. PW16 had also got collected and seized samples of blood of A1 to A3 under seizure memo Exh.63, seized samples collected by Medical Officer. Similarly after ::: Downloaded on - 09/06/2013 15:46:59 ::: 10 receipt of intimation of deaths of victim at Hospital , PSI Atalkar on 15.9.2004 had prepared inquest panchanamas of dead bodies of Sunil Jawalkar and Parashram Jawalkar respectively at Exh.103 and 104 and PSI Kurwale of the dead bodies of Chandrashekhar Bulbule Exh.143 and that of Sunil Dhoot Exh.105 in presence of panch Chandrashekhar PW14. The said corpse were also forwarded by Police for postmortem and, thereafter, collected provisional postmortem reports. Similarly PW16 had also sent injured PW5, PW8, Shashikala Jawalkar and PW10 for medical examination and collection of blood samples by sending letters Exhs. 116 to 119. He had also given letter to Tahsildar for preparing map of spot Exh.
107.
9. PW16 had recorded statement made by A1 leading to discovery of crowbar from his house and nylon rope, groundnut, Gud and plastic can from the field of Ramlal Pawar by drawing memorandum panchanama Exh.
94. PW16 had also recorded statement made by A3 leading to discovery of stick from his house by drawing memorandum panchanama Exh.95 and thereafter seized the said articles at the behest of concerned accused from ::: Downloaded on - 09/06/2013 15:47:00 ::: 11 respective places by drawing panchanama Exh.96 and Exh.
98 and 97 in presence of panchas.
10. PW16 had recorded statement of Chabutai PW6 on 17.9.2004 and had sent swords to Medical Officer for opinion. He had also seized blood stained clothes of injured PW10 from him under seizure memo Exh.85, of PW5 under seizure memo Exh.77, of PW8 while she was residing at Waghapur under seizure memo Exh.82 and of Shashikalabai under seizure memo Exh.93 and so also had also seized their blood samples. He had also seized blood stained clothes, blood samples and viscera bottles of the deceased received from Medical Officer and sent viscera of all deceased persons to Chemical Analyser.
PW16 through Kawadusingh PW13 had taken photographs of spot, of the places of discovery , and seized the said photographs along with negatives. PW16 under requisition Exh.126 had sent Pushpa daughter of accused no.1 for medical examination. The certificate of the said examination was received by him upon reverse side of Exh.
126. ::: Downloaded on - 09/06/2013 15:47:00 ::: 12
11. It is also prosecution case that since it was serious offence , three more Police Officers PSI Kulkarni PW23, PSI A. S. Pawar PW20 , Dy.S.P. T. N. Pawar PW22, had also jointly carried investigation along with PW16. PSI Pawar PW20 had recorded statement of Vitthal Sahare PW11 and others while PSI Kulkarni PW23 of injured PW5, PW10, and Archana Jawalkar at District Hospital, Yavatmal, while API Latpate PW24 of Vinayak PW2 and Babita Deokate. PW24 had also arrested A4 Parashram and A5 Purushottam.
12. Dy.S.P. Parashram PW22 supervising entire investigation, had recorded statement of Dewu PW9, PW8 and also forwarded all other articles seized during investigation to C.A. Under letter Exh.164 and received C.A. reports at Exh.165 to 174 and collected map at Exh.107 of spot drawn by Revenue Inspector. PW22 had also collected injury certificates, PM notes, and the opinion of Medical Officer about the swords. He had also sent PW6 and other witnesses for recording their statements under Section 164 by Magistrate. On completion of investigation, he filed charge sheet against accused persons in the Court of JMFC, Darwha.
::: Downloaded on - 09/06/2013 15:47:00 ::: 1313. After committal of the case by JMFC Darwha to the Court of Session, Darwha trial was taken up by learned Additional Sessions Judge, Darwha. All the five accused have pleaded not guilty to Charge Exh.33 framed for commission of offences under sections 147, 148, 302 r/w 149, 307 r/w 149 of IPC r/w Sec 4/24 of Arms Act, 135 of Bombay Police Act against all and for offence u/s 452 of IPC against A1 and A2 vide their pleas respectively at Exhs. 34 to 38.
14. The prosecution in support of the case examined in all 24 witnesses including first informant/injured PW4 and injured witnesses PW5, 8 and 10 and additionally eye witnesses PW2 Vinayak, PW3 Pralhad, PW6 Chhabutai, PW9 Dewa. Additionally prosecution also examined other witnesses to corroborate /support said main evidence of eye witnesses and so also the investigating officers PW16 Gotmare, PW20 Akaram Pawar, PW22 Parshuram Pawar, PW23 Ramesh Kulkarni and PW24 Vaijnath Latpate.
Additionally , prosecution also relied upon documentary evidence collected during the investigation either for ::: Downloaded on - 09/06/2013 15:47:00 ::: 14 corroborating evidence of these witnesses and/or for establishing some other facets.
15. The defence of the appellants was that of total denial. During the examination effected under Section 313 of Cr.P.C. of each of the appellant, none of them had taken any specific defence, except stating that the circumstances appearing against him in the evidence and put to said appellants either being false or himself not knowing about the same. All of them claimed of the witnesses having deposed against them as per the say of Shrivallab Dhoot and case against them being false.
Additionally A1 and A2 added that they would be filing written statement and had filed such at Exh.183.
16. By the said written statement A1 claimed -
(a) to be poor cultivator from Mozar and Shri Shrivallab Dhoot being the richest cultivator from village, having two groups, one belonging to him and another of Shri Shrivallab Dhoot.
(b) becoming village Sarpanch and after him his wife becoming Sarpanch with the help of poor villagers.::: Downloaded on - 09/06/2013 15:47:00 ::: 15
(c) since for many years cooperative societies from the village being under control of his group, Shri Shrivallab Dhoot being inimical with him.
(d) in the year 2004 with strength of money Shri Shrivallab Dhoot had taken control over needy persons from village ie deceased Sunil Jawalkar, Parshuram Jawalkar, Vinayak Bang and Baiskar and has a planned to raise a quarrel against him at Pola festival.
(e) as A2 came to know about it, he had prohibited his son A2 to join the Pola assembly. A2 was not at home.
A1 presuming that A2 might have gone to Pola had been see A2 at Pola Festival.
(f) then he had learnt that while Sunil Jawalkar was altercating with A2, Parashram Jawalkar had been at said place with a sword in his hand and dealt a blow on A2 but same struck Sunil Jawalkar who was standing beside and his finger got cut. Seeing the said incident, A2 rushed towards home.
(g) A2 met A1 on the way and informed him about said incident same enraged A1 and he started for the house of Jawalkar to ask him (about it). A2 too followed him. A1 had taken wooden zilpi (splinter) with him.
::: Downloaded on - 09/06/2013 15:47:00 ::: 16(h) after seeing them Parashram Jawalkar and Sunil Jawalkar had been into their courtyard with swords. PW10 had intervened. Thereupon, A1 had given him a blow of zilpi (chip). Parashram Jawalkar and Sunil Jawalkar had drunken liquor excessively. They had rushed upon them by wielding the swords hence A1 and A2 had ran away from there. PW10 snatched away zilpi from A1 and threw it away on the tin roof.
(i) thereafter they had not gone to the house of Jawalkar.
They were not aware as to what had happened thereafter.
They do not know as to when Sunil Dhoot and Chandrashekhar Bulbule had been to the house of Jawalkar and what had happened between them but while proceeding to house, they had found that both of them had consumed excessive liquor. Apprehending that people of group of Shrivallabh would beat them A2 and A1 had been out of village.
(j) Thus, Shrivallabh Dhoot with the assistance of Jawalkar, Baiskar and other accomplices, had taken disadvantage of incident occurred. Shrivallabh Dhoot in collusion with Police Officers had filed false case against them. They had no enemity with Sunil Jawalkar or Parashram or any other members from their family. They ::: Downloaded on - 09/06/2013 15:47:00 ::: 17 had no reason to commit their murders. They had absolutely no enmity with Chandrashekar Bulbule and Sunil Dhoot. Their relations were good. Transaction about bullocks and cart between Sunil Jawalkar and A1 was about the sale and purchase. By colouring the said transaction falsely, A1 and A2 were implicated in this false case by the efforts of Shrivallabh Dhoot. Case filed against them was false.
17. The trial court, after assessment of the evidence adduced by the prosecution, came to the conclusion of the prosecution having established deceased Sunil Jawalkar, Parsharam Jawalkar, Chandrashekar Bulbule having met with homicidal death and during the incident A1 and A2 unauthorisedly having entered the house of Sunil Jawalkar after making preparation to assault him and the others and having assaulted Sunil Jawalkar, Parshuram Jawalkar, Chandrashekhar Bulbule and Sunil Dhoot by swords and having intentionally and knowingly caused their death and so also A1, A2 and A3 having assaulted PW8 PW10 and PW5 by swords and thereby respectively committed offences under Section 452, 302 and 324 of IPC.
::: Downloaded on - 09/06/2013 15:47:00 ::: 1818. However, trial court came to the conclusion that the prosecution had not proved of all the accused having formed unlawful assembly at the relevant time and all of them being armed with deadly weapons and out of them A1 and A2 having unauthorizedly entered the house of Sunil Jawalkar after making preparation to assault him and A1 and A2 having assaulted Sunil and Parshuram Jawalkar, Chandrashekhar Bulbule and Sunil Dhoot by swords and intentionally and knowingly having caused their death and so also having assaulted PW8 PW10 and PW5 by swords with intention to kill them and accused persons being in possession of prohibited weapons and so also having violated proclamation issued by SDM under sections 37, 39 and 40 of Bombay Police Act and consequently convicted and sentenced A1, A2 and A3 and acquitted A4 and A5 accordingly.
19. Mr. Shrivastava, the learned advocate for A1 and A2, in support of the appeal preferred by them, urged that the prosecution evidence -
1) failed to establish guilt of both said accused for commission of offences for which they are convicted and sentenced.
::: Downloaded on - 09/06/2013 15:47:00 ::: 192) adduced is discrepant, unreliable, unconvincing and full of improvements and against the probability and thus liable to be discarded.
3) of main witnesses is liable to be discarded on the count of their non disclosure promptly to police and there being undue delay in staking a claim of having witnessed the matters as claimed by them at trial.
4) failed to explain the gross delay in recording the statements of the witnesses during the course of investigation and/or explanation tried to be canvassed being wholly insufficient to explain such a gross delay warrants discarding the evidence on the count of unreliability.
5) itself shows there being no proper investigation in the matter and investigation being effected at the behest of the rivals of A1 and A2 i.e. at the behest of Shri Vallabhdas Dhoot.
6) considered in proper perceptive clearly reveals that taking an advantage of situation occurred in village said person had tried to falsely rope A1 and A2 to get rid of his said rivals in political career.
7) of PW2 Vinayak regarding incident of assault on Parshuram is liable to be discarded as he had acted as an ::: Downloaded on - 09/06/2013 15:47:00 ::: 20 panch witness on 14.9.2004 and was present while preparing the map on 25.9.2004 but his statement being recorded on 30.11.2004 indicating that he was not witness for the said incident and lateron claimed to be witnessed for the same.
8) of PW3 Pralhad is also liable to be discarded for the same reason as though he has acted as a panch witnesses on 14.9.2004 and was present while drawing a map, his statement was recorded after 10 days i..e. on 23.9.2004. His claim is unbelievable of having seen 1st part of the incident from above the wall and 2nd part of incident through the window. The said evidence is liable to be discarded as no evidence has been adduced to establish that happenings in the house of Sunil Jawalkar could have been seen by him through window. Even his evidence does not reveal anything about assault made upon Parashram and Chandrashekhar Bulbule.
9) of PW4 Bhaskar is also liable to be rejected as he has claimed to be injured during the incident. However, no injury certificate has been brought on record for corroborating the said claim. His evidence is liable to be rejected regarding assault upon the others in view of the admission given by him and recorded in paragraph no.13 ::: Downloaded on - 09/06/2013 15:47:00 ::: 21 of his deposition of himself having no personal knowledge as to how the persons had died in incident and how the persons have received the injuries in incident excepting himself and his brother PW5 Neminath. Similarly the matters stated by him in paragraph no.19 of his deposition also makes it difficult to accept his evidence.
10) of PW 5 had claimed of having seen incident at Otta will not deserve credence on preponderance of probability after considering the matters recorded in paragraph nos. 8, 11 and 14 of his deposition.
11) of PW5 considered in proper perceptive clearly reveals that he had not seen 1st part of incident as he claims to have seen the same from the place of Toran at a distance of 100 to 125 ft. from the house of Suresh Bharti at which Sunil Jawalkar was assaulted by A2 when they were present in front of bullocks.
12) of PW5 is liable to be discarded in view of the admission given by PW5 and recorded in paragraph no.11 of his deposition to the effect of his house being at a distance of 50 to 60 ft. from the road and he had closed the door of his house when A1 and A2 had been in courtyard of his house and having not seen anything and only heard voice of A1 and A2.
::: Downloaded on - 09/06/2013 15:47:00 ::: 2213) of PW5 is liable to be discarded in view of admission given by PW5 in paragraph no.14 of having not seen incident which had taken place near Otta of house of Suresh Bharti.
14) of PW5 is liable to be discarded due to being not consistent or not supported by the medical evidence as medical certificate reveals of history being given of assault by someone without naming any accused and there being only one lacerated wound on scalp and abrasion at left molar and claim being staked of A2 having assaulted on leg while A3 having assaulted on head.
15) of PW5 thus liable to be rejected on all the said counts for both part of incident.
16) of PW6 Chabutai looses all credence in view of her statement being recorded after 3 days and no convincing explanation being forthcoming from prosecution, the same leads to inevitable conclusion of herself having not seen the incident due to being not present at the spot. The same is apparent in view of the material omission brought on the record regarding the claim of having seen the assault effected upon Parshuram, Sunil and Chandrashekhar.
::: Downloaded on - 09/06/2013 15:47:00 ::: 2317) of PW8 Lochana loses all the significance in view of her statement being recorded after much delay.
18) of PW8 Lochana looses all its credence in view of prosecution having failed to establish that she had suffered such a injury due to which she could not have spoken for such a long period as claimed by the prosecution. The mere fact that she was injured by itself is not sufficient to come to the conclusion that her statement could not have recorded soon after the incident.
19) having failed to properly proved the alleged injuries sustained by her and/or having not examined doctor to prove the injuries allegedly suffered by her had deprived the defence due opportunity to test her evidence and as such due to the same no reliance can be placed upon her evidence.
20) of PW8 reveals the claim of having seen assault upon her husband Sunil, her evidence does not disclose anything about the assault upon Chandrashekhar, Parshuram and Sunil Dhoot. Her claim of having heard about the assault upon Parshuram but not having seen the same clearly indicates that in all probability that she had not seen the incident occurred at her house and as such her evidence is not helpful to prosecution to advance the ::: Downloaded on - 09/06/2013 15:47:00 ::: 24 case or to sustain the conviction of A1 and A2.
21) regarding spot panchanama Exh. 65 reveals that same was drawn after removal of dead bodies and as such it is difficult to accept that there is any corroboration from the same to the evidence of PW8 or even to other witnesses for accepting that events as claimed by the eyewitnesses has occurred at different places in the said house.
22) of PW9 Dewa is wholly inconsequential as his claim of having witnessed 1st part of incident looses all the significance due to having admitted of being in the village and still his statement being not recorded uptill 25.9.2004.
The same is inconsequential in view of no cogent explanation forthcoming for the said aspect leading to conclusion of himself having not witnessed anything. The same is inconsequential as even his evidence does not transcend beyond having seen incident of chasing and his evidence is also impliedly shattered from the matters spelt out from the CA reports.
23) of PW10 Vishwas loses all credence in view of himself being interested witness due to being closely related with the deceased Sunil and Parashram. The foundation of his evidence is knocked out by the fact of no ::: Downloaded on - 09/06/2013 15:47:00 ::: 25 such Badam tree has been found in the spot panchanama/map. The same also loses credence of his statement being recorded on 17.9.2004 i.e. after about 3 days of the incident. His evidence does not stand the test of probability factor as assailants who had assaulted his sons Sunil and Parashram would never have spared him considering the cause behind making such assault.
24) of PW10 also runs counter to the medical certificate Exh.149 of PW10 which shows that he had sustained minor incised wound over left shin tibia, contrary to the claim of himself having received blow of wooden plank given by A2 to Shashikala.
25) of PW10 regarding assault upon Shashikala loses all credence in view of prosecution having not examined Shashikala and further having failed to give any explanation for her non-examination.
26) of PW10 also loses significance as the said claim is contrary to the medical certificate Exh.146 of Shashikala placed on the record and matters from same running contrary to said claim. The medical certificate reveals case of assault by sword while oral account is otherwise.
27) of PW10 clearly does not reveal A1 and A2, after having left had again returned to the house of Sunil ::: Downloaded on - 09/06/2013 15:47:00 ::: 26 Jawalkar for assaulting deceased persons as claimed by the witnesses.
28) of PW11 considered upon touchstone of probability does not stand to the reason as it will be absurd to imagine that A1 would have made any extra judicial confession to PW11 after threatening him to that he had already killed four persons and now he wants to kill PW11 and further having threatened him that in the event of PW11 going for lifting the body, he would kill PW11 at the said place only. Thus the said evidence is not useful to the prosecution to advance its case apart from the statement of the said witness being belatedly recorded on 8.11.2004.
The claim staked by him is totally out of the tune of probability factor.
29) His evidence clearly does not reveal A1 and A2, after having left had again returned to the house of Sunil Jawalkar for assaulting deceased persons as claimed by the witnesses.
30) clearly reveals that the prosecution witnesses have not told true genesis of incident and same clearly indicates that they were not the eyewitnesses to the incident which had occurred at different places.
::: Downloaded on - 09/06/2013 15:47:00 ::: 2731) Fails to establish guilt of A1 and A2 for commission of gruesome murders and on the contrary the prosecution evidence clearly indicates of themselves being falsely roped as claimed by them.
20. The learned counsel further urged that A1 hails from poor family, he is having three sons, he had no previous history of commission of crime, the cause of incident being to maintain honour of his daughter and considering the manner in which the incident had occurred clearly indicates that he had acted upon spur of moment.
Therefore, even accepting the prosecution evidence as it is, still it cannot be said to be rarest of rare case warranting penalty of death as awarded by the trial court and as such the same does not deserve to be confirmed and deserved to be reduced to the life imprisonment. The learned counsel placed reliance upon the decision in the case of Sebastain alias Chevithiyan .vrs. State of Kerala, reported in (2010) 1 SCC 58 on the point of poverty of an culprit being one of the mitigating circumstances for not awarding death penalty.
::: Downloaded on - 09/06/2013 15:47:00 ::: 2821. The learned counsel further urged that A2 had made an application Exh.202 before the trial court, inter-alia, contending that A2 Vinod was born on 15.11.1986. However, for taking admission in the school for his underage son, school Head Master has increased the said age and registered his birth date as 15.8.1986.
There is no entry of birth of Vinod in the record of Gram Panchayat at Mozar as birth and death record of said Gram Panchayat from the year 1982 to 1995 was missing .
Hence age of accused no.2 be determined by his medical examination and accordingly examination was ordered by the trial Court.
22. The learned counsel further urged that vide order dated 9.5.2008, trial Court had rejected the said application erroneously. He urged that A2 being not major at the time of incident, his trial before the Court is vitiated and the necessary orders in accordance with the Juvenile Justice Act be passed.
23. The learned counsel also relied upon the following decisions regarding aspect of delay in recording of statements of witnesses :
::: Downloaded on - 09/06/2013 15:47:00 ::: 29(i) Bijoy Singh and another .vrs. State of Bihar, reported in AIR 2002 SC 1949,
(ii) Ganesh Bhavan Patel and another .vrs. State of Maharashtra, reported in AIR 1979 SC 135.
24. The learned APP supported the judgment passed by the trial court by urging that the cogent evidence was adduced by the prosecution for establishing guilt of accused convicted but so also for the accused who were acquitted by the trial court. He urged that the evidence of the witnesses is required to be appreciated on the backdrop of four brutal murders having taken place in the said village. He urged that visualizing the situation which was created in the said evening by the accused persons it cannot be gainsaid that witnesses would have readily approached the police for narration of matters seen by them. He urged that fact of police being required to establish Chowki in the said village itself denotes the situation which had prevailed at the relevant time in the said village. He urged that witnesses after regaining courage having told the matters to the police, their evidence is not be liable to be discarded on the count of delay as defence has failed to establish that they were ::: Downloaded on - 09/06/2013 15:47:00 ::: 30 false witnesses roped by the prosecution. He also urged that merely because witness has assisted the police at an early stage by acting as panch witness but at the said time having not deposed about the incident and lateron having staked such a claim, his such a claim will not be also liable to be discarded due to non-disclosure made by him at the earlier stage.
25. He urged that the evidence of PW2 with regard to first part of incident reveals that during the incident A2 had assaulted Sunil Jawalkar near Otta in Pola festival. He urged that his said evidence will not be liable to be discarded as the omission to such effect brought on record being not in the nature of contradiction. He urged that his evidence duly establishes A3 having assaulted PW5 Neminath by a stick and A2 also having assaulted PW5 by sword. He urged that his evidence also reveals of A1 and A2 armed with swords going to house of Sunil Jawalkar.
26. He further urged that evidence of PW2 with regard to second incident reveals that A1 had assaulted deceased Chandrashekhar by sword on neck and the said fact is duly corroborated by medical evidence and so also ::: Downloaded on - 09/06/2013 15:47:00 ::: 31 the fact of the blood of the group of deceased Chandrashekhar being found upon the sword recovered at the behest of A1 and so also upon his pyjama. Similarly the evidence of PW5 of A2 having assaulted deceased Sunil by sword is also found corroborated from medical evidence.
He urged that all the said evidence having remained intact and no explanation having been sought by the defence from the investigating officer for ig delay in recording of statement of PW2 clearly reveals that the said evidence is not liable to be discarded.
27. The learned APP further urged that evidence of PW3 Pralhad with regard to first part of incident clearly establishes of A3 having assaulted PW5 Neminath on head and A2 armed with sword having chased Sunil Jawalkar.
He urged that the later part of his said evidence though omission being not in the nature of contradiction will not be liable to be discarded.
28. The learned APP urged that evidence of PW3 Pralhad with regard to 2nd part of incident reveals that he had seen A1 and A2 with sword at the house of Sunil Jawalkar. He had also seen PW6 and PW8 at the house of ::: Downloaded on - 09/06/2013 15:47:00 ::: 32 Sunil and so also seen Sunil Dhoot going to the house of Sunil Jawalkar. It also discloses A2 having assaulted Sunil Dhoot by sword on neck. His evidence also discloses about the assault made by A1 and A2 upon Sunil Jawalkar at his house. It also discloses of himself having seen A1 and A2 coming from the house of Sunil Jawalkar with sword. He urged that all the said evidence regarding the second part of incident having remained intact merely because of statement of PW3 being recorded late will not be a good ground for discarding the same as no attempt has been made to seek any explanation from the investigating officer in that regard.
29. The learned APP urged that the evidence of PW4 is duly corroborated by the report promptly lodged by him at 17.15 hours. His evidence with regard to the first part of incident of A2 having assaulted Sunil Jawalkar near Otta by sword and so also A3 having assaulted PW5 by stick is not liable to be discarded on the count of the same being omission in view of failure of defence to prove the same through the evidence of PW16 Gotmare who had recorded his statement. He urged that his evidence also establishes the motive for commission of the crime.
::: Downloaded on - 09/06/2013 15:47:01 ::: 3330. He urged that evidence of PW5 with regard to second 2nd part of incident of having seen A1 and A2 coming from the house of Sunil Jawalkar with sword stained with blood has remained intact in spite of the cross examination. He urged that his evidence regarding attack made upon him has also remained unshattered during the cross examination.
31. The learned APP urged that the evidence of injured eyewitness PW5 with regard to first part of incident establishes A2 having assaulted Sunil Jawalkar on the hand and the same having resulted in cutting finger of Sunil and falling the same on ground. He urged that the said evidence is duly corroborated from the matters stated in the spot panchanama Exh. 65 and from the evidence of PW16 Gotmare. The same also establishes of himself being assaulted on head by A2.
32. He urged that evidence of PW5 also establishes that A1 and A2 were pushing the door of the house of deceased Sunil Jawalkar with sword. He urged thus the evidence of PW5 duly establishes all the aforesaid facets.
::: Downloaded on - 09/06/2013 15:47:01 ::: 3433. He urged that evidence of PW6 with regard to second part of incident duly discloses details of assault made by A1 and A2 by swords upon Sunil Jawalkar. Her evidence also discloses of having seen dead body of Chandrashekhar Bulbule. The omissions brought during the cross examination being qua her statement recorded by Magistrate on 14th of December, 2002 the same would not warrant not accepting her evidence which establishes all the above facets pointed which had remained unshattered after cross examination.
34. He urged that evidence of PW8 establishes of herself having seen finger of her husband being cut and bleeding injury, injury on the neck of Sunil Dhoot, PW6 being present, her husband being assaulted by sword by A1 and A2, Parshuram being assaulted by A2, details of the assault upon Sunil and Parshuram, AW1 having enquired with A2 if Sunil Dhoot had died or otherwise, herself having explained delay occurred in recording her statement by police, her evidence being corroborated by medical certificate proved through the evidence of PW 21 Dr. Malkani and no explanation being sought from PW22 ::: Downloaded on - 09/06/2013 15:47:01 ::: 35 Dy.S.P. Pawar who had recorded her statement about the delay occurred in recording the same. He urged that her evidence establishing such facets, will deserve credence and acceptance.
35. He urged that the evidence of PW9 Deva with regard to first incident duly establishes A2 having assaulted Parshuram and A1 and A2 going towards the house of Sunil Jawalkar with sword and A2 also having assaulted PW4 Bhaskar.
36. He urged that prosecution through the evidence of PW10 has established of himself so also his wife being assaulted by A1. His evidence also establishes A1 and A2 then being armed with swords.
37. The learned APP thus urged that all the evidence squarely establishes guilt of the accused convicted by the trial court. He urged that same also establishes involvement of A3, A4 and A5 as the companions of A1 and A2. The learned APP thus urged that in view of the same appeal preferred by A1 and A2 being without merit deserves to be dismissed while appeal preferred by State ::: Downloaded on - 09/06/2013 15:47:01 ::: 36 deserves to be allowed and A3, A4 and A5 are also liable to be convicted and sentenced for the offences committed by other members of the unlawful assembly of which they were also members.
38. The learned APP on his part relied upon decision in the case of State of U.P. .vrs. Satish - Respondent reported in 2005 Cri.L.J. Page 1428 in support of the proposition canvassed by him qua the aspect of delay of recording statements of witnesses being not fatal to the prosecution.
39. He also placed reliance upon the decisions in the case of Omprakash .vrs. State of Uttarachand, reported in 2003 ALL MR (Cri) page 581 SC and in the case of Ramsingh .vrs. Sonia, reported in 2007 ALL MR (Cri), 1166 SC, regarding the criteria for awarding the death sentence. He also pointed out the decisions in the case of Haru Ghosh .vrs. State of West Bengal, reported in 2009 ALL MR (Cri) 3097 (SC) and in the case of Mohd. Ankoos and others .vrs. The Public Prosecutor, High Court of A.P. reported in AIR 2010 SC 566 for at-least awarding higher sentences to the culprits ::: Downloaded on - 09/06/2013 15:47:01 ::: 37 having committed four brutal murder.
40. Mr. Dangre, the learned counsel for respondents nos. A3, A4 and A5 in Criminal Appeal No.89/2009 urged that though A3 had not preferred an appeal challenging the order of conviction convicting him for the commission of offence under Section 324 of IPC and sentencing him to suffer R.I. for 3 years even the said order cannot be sustained upon evidence on record nor appeal preferred by the State for setting aside order of his acquitted for rest of the offences for which he was charged with. He urged that the findings recorded by the trial court in paragraph no.57, 61, 72, 73 and 74 clearly reveal that the allegations against A3 were restricted for assault with a stick allegedly effected by him on PW5 Neminath. He urged that apart from there being no allegations of A3 having participated or played any role qua the attack/assault upon other four injured persons, no penal liability will accrue to him.
41. He further urged that the evidence on record regarding the allegation of assault on PW5 by stick suffers from material omissions and contradictions and on the face of record appears to be not trustworthy. The medical ::: Downloaded on - 09/06/2013 15:47:01 ::: 38 officer alleged to have examined PW5 was not examined by the prosecution as witness. The injuries alleged to have been caused to PW5 were not proved as has been held by the learned trial court. He urged that even the name of A3 is not found in first information report. He thus contended that the finding of acquittal recorded by the trial court regarding the other charges for which A3 was charged is correct and proper and the same is supported by the reasons given. Neither the said reasons nor the findings arrived can be said to be perverse warranting any interference and as such the appeal preferred by the State against the said acquittal deserves to be dismissed.
42. The learned counsel further urged that there exists absolutely no evidence against A4 and A5 of having played any active role in the alleged episode and the allegations against them do not travel beyond being present at the time of incident. The attempt made on the part of some of the witnesses to attribute overt act to A3 and A4 of themselves having instigated the other accused to assault the deceased is also ill founded and the same being in nature of omission/contradiction has been duly brought on the record. The trial court during the reasoning ::: Downloaded on - 09/06/2013 15:47:01 ::: 39 recorded in paragraph no.67, 68 and 70 of the judgment impugned has categorically observed that the evidence in respect of presence or overt act regarding A4 and A5 cannot be accepted and the prosecution has failed to prove that the said accused had acted in furtherance of any common object. Thus the said findings based upon proper appreciation of evidence can neither said to be improper or perverse warranting any interference.
ig Even
the name of A4 and A5 is not borne from the FIR. Thus
there being no merits in the appeal preferred by the State the same will deserved to be dismissed.
43. We have considered the submissions made by learned appointed counsel for A1 and A2 and the learned counsel for A3 to A5 and so also learned APP and carefully perused the record and the decisions relied.
44. Before considering the other submissions canvassed by the rival parties, we deem it proper to consider the submissions canvassed by learned counsel pertaining to the forum for trial of A2 being improper i.e. rejection of application made at Exh.202 by the trial Court vide order dated 9.5.2008 having resulted in making A2 to ::: Downloaded on - 09/06/2013 15:47:01 ::: 40 face a trial before a wrong forum. In the same context after carefully considering all the relevant material placed before the trial Court, we are of considered opinion of the same being sans merit.
45. In order to have the benefit of the provisions of the Juvenile Justice Act, it was necessary for A2 to establish that at the time of commission of the offences, he was juvenile in conflict with law i.e. having not completed the age of 18 years on the said day. On the said backdrop considering the order dated 9.2.2008 passed by the trial Court in light of the material placed on record, it can be safely said that hardly any material was placed before the trial Court by A2 for accepting the contention of being born on 15.11.1986 and not born on 15.8.1986 as revealed from entry in the school record. Hardly any evidence has been placed before the trial Court in support of the ancillary contention of such age/ date of birth being recorded in school by Head Master of school while admitting A2 in school due to himself being then underage.
Having regard to the same and the age of A2 got determined by trial Court through the Civil Surgeon i.e. by radiological test being found to be 21 to 22 years, makes ::: Downloaded on - 09/06/2013 15:47:01 ::: 41 it difficult to find any substance in said submission canvassed. The same appears accordingly having due regard to margin of an error on both the sides in estimation of an age by such a test, the incident having occurred on 14.9.2004 and the age of A2 by such a test being found of in between 21/22 years on 5.5.2008. Thus even taking into consideration average of the same and margin of an error, it cannot be accepted that A2 being below the age of 18 years on the date of incident being conclusively established. Hence he cannot be said to be entitled for the benefit of the provisions pointed under said Act.
46. On backdrop of main prosecution case as narrated earlier of the offence of murder of four persons and causing injuries to prosecution witnesses PW5, PW8 and PW10 and so also to Shashikala Jawalkar, Sushilabai Dhoot and Dilip Jawalkar being committed by accused as members of unlawful assembly and having regard to the offence for which the accused at trial were convicted, sentenced and or acquitted and taking into consideration nature of the appeals preferred and/or reference made for confirmation of death sentence awarded to A1 for ::: Downloaded on - 09/06/2013 15:47:01 ::: 42 determining merits in the same makes it imperative to firstly ascertain whether the prosecution evidence has established the said four persons having met homicidal death and/or whether the injuries as claimed by the prosecution were caused to such persons during the said incident as contended by the prosecution.
47. Either of parties in the present proceeding has not seriously disputed the facets of (i) Sunil Jawalkar, (ii) Parashram Jawalkar, (iii) Chandrashekhar Bulbule and (iv) Sunil Dhoot having met with homicidal death due to the injuries received by them in an incident which had occurred at village Mozar on relevant date, time and place as contended by the prosecution. Apart from the same there exists overwhelming evidence in the said respect of the medical officer who had performed autopsy upon dead bodies of the said persons, the other evidence corroborating the said evidence and fortifying conclusion of death of said persons being homicidal emerging from the same.
48. In the said context reference to evidence of Dr. Kolpe (PW17) reveals that in the month of September, ::: Downloaded on - 09/06/2013 15:47:01 ::: 43 2004 while working in G.M.C., Yavatmal, as post-graduate Student as per letter Exh.130 received by Dr. Malani from Police Station Yavatmal, he had conducted post-mortem Examination on the dead-body of Chandrashekar on 15-9-2004 from 1.40 a.m. to 3.00 a.m. His evidence reveals that during the external examination he had found 13 injuries over said corpse as described in detail with dimensions and locations by him in column No. 17 of post mortem notes Exh.131 prepared by him of the said autopsy. It also reveals that out of said 13 injuries, injury at Nos. (i), (ii) and (v) were chop injuries respectively on right side of face, right mandible and occipital region, while injury at No.(iii), (xi) were incised wounds while remaining injuries were abrasions. His evidence also shows that all the said injuries were fresh and said chop injuries might have been caused by sharp cutting heavy object and all incised wounds and abrasions might have caused by sharp cutting object and all the said injuries were ante-mortem.
49. The evidence of PW17 further reveals that during internal examination, he had found cut fracture of second cervical vertebra which was described as injury No. 2 ::: Downloaded on - 09/06/2013 15:47:01 ::: 44 aforesaid. It also reveals that in his opinion said injuries Nos. 1, 2 & 5 mentioned in column no. 17 of P.M. notes individually and collectively led to death of Chandrashekhar due to hemorrhage and shock due to multiple chop injuries.
50. The further evidence of PW17 reveals that on the same day as per letter Exh.132 received by Dr. Malani from Police he had conducted post-mortem Examination on dead-body of Sunil Dhoot on 15-9-2004 from 3 to 4 a.m. He had found following two injuries over the body.
(i) Chop wound over left lateral aspect of neck and left occipital of size 17 X 5 cm. X spinal cord deep, oblique in direction and its upper end was placed laterally with tailing was present at lower end of size 2.5 X 0.2 cm. The flap was present at lower border, minimal contusion present at upper border with cutting of soft tissue and C 3, C 4 & C 5 cervical vertebree. Obliquely and underlying spinal cord partially in single plane. It was red in colour.
(ii) Stab wound over left arm on lateral aspect, 17 cm. from shoulder top of size 3 X 1 cm. by bone deep with tailing of 4 X 0.2 cm. at lower end. It was red in colour and both the said injuries were ante-mortem injuries and Injury No. 1 ::: Downloaded on - 09/06/2013 15:47:01 ::: 45 from the same has lead to death of Sunil Dhoot was due to hemorrhage and shock due to said chop wound over neck and Exh.133 being postmortem notes of the said autopsy performed by him.
51. The further evidence of PW17 reveals that on same day as per letter Exh.134 received by Dr. Malani, he had conducted post-mortem examination of corpse of Sunil Jawalkar from 4.00 a.m. to 5.30 a.m. and during said he had found 35 external injuries over body as described by him details with dimensions and locations in column no. 17 of autopsy notes Exh.135 prepared by him.
It also reveals that out of them injuries at No. (i), (xxii) to (xxiv), (xxvi), (xxix), (xxxi), (xxxii) were incised wounds respectively at central forehead, posterior aspect of right forearm, below right elbow, posterior aspect of right forearm, posterior aspect of left forearm, multiple liner cuts over palmer surface, right knee, right knee while injuries mentioned at Nos. (ii) to (xi), (xiii), (xv) to (xx), (xxvii), (xxviii), (xxx), (xxxiii) were chop wounds respectively at left parietal eminence , left parietal bone, right parietal bone, right parietal bone, above base of right ear, right maxilla, right maxilla, left lateral side of head ::: Downloaded on - 09/06/2013 15:47:01 ::: 46 from base of left ear to occipital protuberance, (two injuries), left occipital, lateral aspect of left arm, left forearm, left palm, left palm, left middle finger, amputation of distal phyalynx of left ring finger, amputation of left index finger, right hand just distal to base of meta carpals, right index finger over middle phyalynx, right knee, right leg while remaining injuries were abrasions/contused abrasions.
52. His evidence discloses that all said injuries were red in colour and fresh. It also disclosed that all Chop wounds might have been caused by sharp cutting edged heavy weapon while all incised wound and abrasion except Injury No. 14 mentioned in column no.17 might have been caused by sharp cutting weapon while Injury No. 14 might have been caused by hard and rough surface.
53. His evidence discloses that on internal examination he had found sub-arachnoid hemorrhage over both parietal lobes of brain. There was cut over brain as described in aforesaid Injury No. 4. He had opined that aforesaid Injury Nos. 2, 3, 4, 5, 6, 16 & 27 were sufficient to cause death individually, while Injury Nos. 1 to 11, 13, 15 ::: Downloaded on - 09/06/2013 15:47:01 ::: 47 to 20, 22, 23, 24, 26, 27, 28, 30 to 33 were sufficient to cause death collectively. In his opinion death of Sunil Jawalkar had taken place due to hemorrhage and shock due to multiple chop wounds with injury to brain.
54. His evidence further reveals that on same day as per letter Exh. 136 received by Dr. Malani from police he had conducted post-mortem Examination on dead body of Parashram Jawalkar on 15-9-2004 from 5.30 a.m. to 7.00 a.m. and during the same he had found 24 injuries over the body as described in detail with dimensions and locations by him in column no. 17 autopsy notes Exh.137 prepared by him of the said autopsy. It reveals that out of them injury mentioned at Nos. 3 to 7, 11, 15, 17, 19 to 21 were chop wounds respectively at right occipital region, left parietal region, below base of left ear, posterior aspect of neck, postero superior aspect of left shoulder, palmer aspect of left wrist, posterior aspect of right shoulder, medial aspect of right forearm, anterior aspect of right hand, right palm, base of right little finger while injuries mentioned at Nos. 10, 13, 14, 18, 24 were incised wounds respectively at left shoulder and left arm, right scapula, right para vertebral region at the level of second lumber ::: Downloaded on - 09/06/2013 15:47:01 ::: 48 vertebra, right elbow and right shoulder while remaining injuries were abrasions, linear, curve or otherwise.
55. The evidence of PW17 reveals that all said injuries were red and fresh and chop wounds might have been caused by sharp cutting heavy object and all incised wounds and abrasions might have been caused by sharp cutting object. The same also reveals that aforesaid Injury Nos. 3, 4, 6 & 11 were sufficient to cause death individually while Injuries Nos. 3 to 7, 11, 13 to 15, 17 to 20 and 24 were sufficient to cause death collectively. PW17 opined that death of Parashram Jawalkar had occurred due to hemorrhage and shock due to multiple chop injuries with transection of spinal cord. His evidence shows that Exh.
137 being notes prepared by him about the said post-
mortem examination. It also reveals that fingers of left hand of Sunil Jawalkar being totally imputed were signified by said injuries Nos. 18, 19 & 20.
56. The evidence of PW17 further reveals that on 26-10-2004, he had received 2 swords in sealed conditions from PSO Ladkhed along with forwarding letter and he had examined both the said swords and the same were of ::: Downloaded on - 09/06/2013 15:47:01 ::: 49 dimensions and of nature as given by him in evidence and both of them were having rust stains and only one blood stains at places as deposed by him in his evidence.
Significantly enough he has mentioned that injuries caused to deceased Chandrashekhar Bulbule and described by him in column no.17 and 22 of autopsy notes Exh. 131 for the said deceased were possible by both the said swords.
Similarly both the injuries mentioned in Column No. 17 of P.M. Report of Sunil Dhoot were possible with both these weapons. All the injuries mentioned in Column No. 17 & 19 of P.M. Report of Sunil Jawalkar were possible with both these weapons. All the injuries mentioned in Column No. 17 of P.M. Report of Parashram Jawalkar were possible by both these weapons and he had answered query made by police. PW 17 had identified Articles "H & I" shown to him being the said swords and so also Exh.139 to 142 being provisional P.M. Reports given by him in respect of said all four dead-bodies. He has further opined that injuries mentioned in all the four post-mortem reports were possible if sword is moved and it comes in contact with body with force.
::: Downloaded on - 09/06/2013 15:47:01 ::: 5057. Now scrutiny of evidence of PW 17 in light of the answers given by him during cross examination does not reveal any significant admission and/or circumstance being elicited during searching cross examination of the said witness effected or otherwise brought on record rendering his above stated evidence unbelievable or unacceptable.
Needless to add that without deciding every answer given by the witness during the cross examination it can be said that PW17 had duly denied various suggestions given on behalf of the accused including himself having not conducted the said post-mortem. Though PW17 had admitted of certain details being not mentioned by him in the post-mortem notes prepared still considering the aspects regarding which the relevant questions were asked, it will be difficult to accept that the same will have any effect upon his positive evidence regarding the aspects upon which he had deposed and which had remained unshattered after cross examination.
58. Now before making a dilation about the matters established by the evidence of PW17 it will be proper to consider the evidence of Dr. Malani PW21 who had received the letter for performing the post-mortem and ::: Downloaded on - 09/06/2013 15:47:01 ::: 51 along with him PW17 was working at Government Medical Hospital, Yavatmal. In the said process reference to the evidence of Dr. Malani reveals that while working as Assistant Lecturer in Government Medical College and Hospital Yavatmal, PW17 was also working with him and PW21 had gone through all the post mortem reports pertaining to post mortem examinations on dead bodies of Sunil Jawalkar,ig Parashram Jawalkar, Chandrashekhar Bulbule and Sunil Dhoot conducted at the said Hospital by himself along with PW17 as per the requisition made by the police and Exhs. 135, 137, 131 and 133 being the said post-mortem notes in his handwriting and bearing his signature.
59. The evidence of PW21 reveals of deceased Sunil Jawalkar having died because of injuries nos 3, 4, 6,11 mentioned in column No. 17 of P.M. Notes pertaining to him, individually and injury Nos. 3 to 7, 11, 13, to 15, 17 to 20 and 24 mentioned in column No. 17 P.M. Notes pertaining to him, collectively and cause of his death being hemorrhage and shock due to multiple chop injuries with transection of spinal cord. He had also deposed of deceased Parashram Jawalkar having died because of ::: Downloaded on - 09/06/2013 15:47:01 ::: 52 injuries Nos. 3, 4, 6 and 11 mentioned in column No. 17P.M. Notes pertaining to him, individually and injury Nos. 3 to 7, 11, 13 to 15, 17 to 20 and 24 mentioned in column No. 17 P.M. Notes pertaining to him, collectively and cause of his death being hemorrhage and shock due to multiple chop injuries with transection of spinal cold. He had also deposed of deceased Chandrashekar Bulbule having died because of injury Nos. 1, 2 and 5 mentioned in column No. 17 P.M. Notes pertaining to him, individually and collectively and cause of his death being hemorrhage and shock due to multiple chop injuries. He had also deposed of deceased Sunil Dhoot having died because of injury No. 1 mentioned in column No. 17 P.M. Notes pertaining to him, and cause of his death being due to hemorrhage and shock due to chop wound over neck. He had also deposed of deceased Sunil Jawalkar having died because of injury Nos. 2 to 6, 16 and 27 mentioned in column No. 17 P.M. Notes pertaining to him, individually and injury Nos. 1 to 11, 13, 15 to 20, 22 to 24, 26 to 28 and 30 to 33 P.M. Notes pertaining to him, collectively and the cause of his death being due to hemorrhage and shock due to multiple chop wounds with injury to brain.
::: Downloaded on - 09/06/2013 15:47:01 ::: 5360. The evidence of PW21 also corroborates evidence of PW 17 of having given provisional post mortem reports as per Exhs. 139 to 142 and the same bearing signatures of both of them and contents of the same being correct. It also reveals of having received letter for verification of weapon from Ladkhed Police Station with two swords and having examined both the said weapons and given report Exh. 138 regarding the same. The scrutiny of the evidence of PW 21 alike that of PW17 does not reveal any significant circumstance being elicited during his cross examination effected. Needless to add that the said evidence definitely corroborates the evidence of PW17 upon the relevant matter.
61. Now considering the matters established by the evidence of doctors PW17 and PW21 regarding nature of injuries which were found on the corpse of Sunil Jawalkar, Parshuram Jawalkar, Chandrashekhar Bulbule and Sunil Dhoot, the opinion regarding cause of such injuries and so also cause of death of the said persons given by both of them and opinion regarding the swords articles H and I examined by them i.e. the swords which were seized during the course of investigation at the behest of A1 and ::: Downloaded on - 09/06/2013 15:47:01 ::: 54 A2 and the same considered along with the matters as revealed from spot panchanama Exh.65 definitely leads to no other conclusion than all the said four persons having met with homicidal death. Such a conclusion is inevitable as all the said evidence rules out death of the said persons having occurred due to any other reason.
62. In addition to the aforesaid the opinion given by PW17 and PW21 about the cause of the injuries and about the weapon examined by them also supports prosecution case of all the said deceased were assaulted by means of swords and thus in turn probabilises the claim staked by the witnesses of the said deceased and so also injured being assaulted by means of sword.
63. Now taking up the other medical evidence adduced by the prosecution in the shape of the evidence of PW18 Dr. Sunil Pardeshi the same reveals that on 14-9-2004 while attached to District Hospital Yeotmal he had examined Shashikala Jawalkar admitted in Surgery Department and found following injuries on her person.
(1) Incised wound over fore-head, midline of size 1C.M. X 0.5 C.M. ::: Downloaded on - 09/06/2013 15:47:01 ::: 55 (2) Injury over left wrist. Deep injury Tendons and blood vessels exposed with dislocation of wrist joint.
It reveals that she was treated in Surgery Department for injury received on fore-head and referred to Orthopedic Department for injury to wrist. She was operated in Orthopedic Department and Exh.146 being Certificate given by him regarding the said examination made by him.
64. It reveals that on the same day he had also examined Sushila Dhoot and had seen one clear lacerated wound on her left foot and She was discharged on 18-2-2004. And Exh.147 being Certificate given by him and Exh. 148 and Exh.149 being injury certificates regarding Nemichand PW5 and Vishwas PW10 are bearing signatures of Dr. Vijay Akolkar, then working with him. He has also deposed regarding the matters mentioned in the said certificates. Upon scrutiny of his evidence though absence of certain matters in the certificates are brought on record regarding certificate issued by him and/or generally patient gives the history and the said certificates contained the history as assault by somebody, hardly any significant material has been brought on record for not accepting the core of the testimony of the said witness at ::: Downloaded on - 09/06/2013 15:47:01 ::: 56 least regarding examination effected by him and so also by his colleagues and certificates being issued obviously during the ordinary course of business carried out at the said hospital.
65. Now reference to the evidence of Dr. Narsing Hari Rathod PW19 also reveals similar thing i.e. on 15-9-2004 while being attached to Cottage Hospital, Darwha, having examined A2 Vinod and having found following injuries on his person :-
(i) Incised wound of size 3 cm. x 0.1 cm. x 0.2 cm. on right hand palm.
(ii) Contusion of size 2 x 3 cm. on right forearm on upper lateral part.
(iii) Incised wound of size 1 cm. x 0.2 cm. x 0.3 cm. on left great toe.
And having issued medical certificate Exh. 152. His evidence further reveals on the same day having examined A1 and having noticed following injuries on his person :
(i) Contusion of size 2 x 2 cm. on mid part of forehead
(ii) Contusion over left hand dorsum
(iii) Contusion located over chest left lateral part, ::: Downloaded on - 09/06/2013 15:47:02 ::: 57 and accordingly having issued certificate Exh.153. It also reveals on the same day also having examined A3 and found no injury on his person. His evidence also reveals that injuries received by said accused persons were possible by sharp object. Upon scrutiny of the evidence of PW19 , the same does not reveal that fact of presence of such fresh injuries was demolished on behalf of defence.
66. Now considering the aforesaid evidence along with the matters stated in the medical certificates given by doctors PW18 and 19, it can be safely said that by the same prosecution has established the said injured persons Shashikala Jawalkar, Sushila Dhoot and so also A1, A2 and A3 were suffering from the injuries on the relevant date of their examination by the said doctors. It is true that prosecution has not examined Shashikala Jawalkar and Sushila Dhoot during the course of trial and as such their evidence is not on record regarding the manner in which they had sustained the said injuries. However, the evidence of PW18 regarding relevant respect having remained unshattered during the cross-examination, the same will be sufficient for establishing the fact of the said ::: Downloaded on - 09/06/2013 15:47:02 ::: 58 Shashikala and Sushila were then suffering with such injuries. Non-examination of both of them would not be a factor for accepting the criticism that in absence of the same, prosecution cannot be said to have established the said facet.
67. Having regard to the prosecution case stated in detailed earlier it is cleared that incident has commenced initially at the place of Pola festival i.e. at the Otta of Suresh Bharati and during the same main victim Sunil Jawalkar having ran away to his house and further incident had occurred at said house of courtyard of the same and, thereafter both A1 and A2 had gone to the house of PW5 to kill him makes it abundantly clear of the incident having taken in two parts.
68. Now apparent glance at the evidence adduced by the prosecution reveals that evidence of injured witnesses PW5, PW8, and PW10 and that of PW2, PW3 and PW9 has been adduced regarding both parts of the incident, while the evidence of first informant PW4 and PW7 is relied for establishing first part of incident that had taken place in Pola festival. The evidence of Chabutai Shende PW6 is ::: Downloaded on - 09/06/2013 15:47:02 ::: 59 adduced regarding second part of incident that had taken place at the house of Sunil Jawalkar.
69. Now before taking up task of assessing the evidence of aforesaid witnesses to ascertain involvement of accused as established by the same, it will be necessary to say that after taking into consideration fact that incident had taken place in a village and most of the witnesses for the same are either person injured during the incident and/or inhabitants of the said village, it will be necessary to assess their evidence carefully having due regard to the fact of such a type of rustic witnesses have inherent tendency to either exaggerate the matters seen by them and/or intermix the other matters about which they have received information lateron, with the matters seen by them. The same is necessary as the doctrine of falsus in uno, falsus in omnibus has not been applied in India.
70. Similarly having regard to the fact that incident had occurred at about 5.00 p.m. in the said village and the same has resulted in causing death of four persons and injuries to about four persons, weapon like swords being used in the same and happening of such a nature being ::: Downloaded on - 09/06/2013 15:47:02 ::: 60 bound to be unusual event in such a village, the said feature will have to be taken into consideration while assessing the evidence of the prosecution witnesses and more particularly of their conduct of not immediately approaching the police for narrating the matters witnessed by them. The same will be required to be taken into consideration as the fact of witnesses having not readily approached the police and/or situation then prevailing in the said village after the incident is apparently borne from the evidence of Investigating Officers PW16 and PW22 adduced by the prosecution in addition to the admissions given by the witnesses PW3, PW5, PW9 and PW11 indicating amongst other features of police being required to establish a chowki in the said village at the relevant time.
71. Though it is true that eye-witnesses not promptly approaching the police and/or not making the disclosure of the matters witnessed by them immediately after coming into contact with the police is one of the features creating a doubt about the genuineness of claims staked by such a witness of being eye-witnessed to the incident, however, the same can never said to be the sole yardstick for ::: Downloaded on - 09/06/2013 15:47:02 ::: 61 discarding the evidence of such a witnesses if the reasons for the delay occurred are either explained by them or by prosecution by cogent evidence or even if they are per se apparent on the record. The same is obvious as it is settled legal position that in such a contingency court has to ascertain whether a false witness has not been roped out in a case and without ascertaining the same even the evidence of such a witnesses is not liable to be discarded as the same is to some extent supported by the presumption of truth arising out of the fact of evidence being given under the sanctity of the oath.
72. In the same context reference to the decision in the case of State of U.P. .vs. Satish (supra) pointed out by the learned APP reveals following observations made by the Apex Court regarding question of delayed examination of witnesses in paragraph no. 19 of the said decision reveals following observations "As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes ::: Downloaded on - 09/06/2013 15:47:02 ::: 62 suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion (See Ranbir and others .v. State of Punjab, (AIR 1973 SC 1409), Bodhram alias Bodha and others .v. State of Jammu and Kashimir, (2002 (8) SCC 45) and Banti alias Guddu v. State of M.P. (2004 (1) SCC 414)."
Having regard to the above mentioned legal position, it will be wholly unnecessary to make any dilation about the same and/or the decisions upon the similar aspect pointed by the learned counsel for A1 and A2 in the case of Bijoy Singh and another and Ganesh Bhavan Patel and another (supra). Needless to add that import of the said observation will have to bear in mind while assessing the evidence of the witnesses in the instant case.
73. Thus without again making dilation about the features of the prosecution evidence recited hereinabove and visualizing the situation prevailing in the said village as disclosed by the same, primarily the evidence of none of the witnesses would be liable to be discarded on the count of delay occurred in recording his/her statement by the police in the instant case, as tried to be canvassed by learned counsel for the accused/appellants.
::: Downloaded on - 09/06/2013 15:47:02 ::: 6374. Now glance at the evidence of PW2 Vinayak Ban reveals that he has staked tri-fold claim of having acted as a panch witness for spot panchanama Exh.65 on 14.9.2004, also being present at the time of drawing the map of the spot and so also having seen both part of incident. It is true that as canvassed by learned counsel for accused nos.1 and 2 apparently the statements of the said witness being recorded on 30.11.2004 implies of PW2 having not staked a claim of being eyewitness for the incident with Police, either while drawing spot panchanama on 14.9.2004 or while preparing the map on 25.9.2004, creates suspicion of higher degree about such a claim lateron staked by him. The said submission cannot be said to be devoid of merit in spite of the learned APP having pointed out that no explanation from PW2 was sought during cross examination by the learned counsel for the accused and/or claims staked by him being inconsistent with the prosecution case and/or being supported by the medical evidence. The same is apparent as unusual delay occurred in recording statement of PW2 itself takes away the sting of submission that defence should have sought explanation from him about same. The same is obvious as ::: Downloaded on - 09/06/2013 15:47:02 ::: 64 PW2 being present at the time of drawing spot panchanama and so also while preparing a map and still his statement being not recorded truly warrants prosecution explaining said unusual feature rather than the defence seeking an explanation for the same.
Needless to add question of defence seeking such an explanation before making capital of such conduct of PW2, would never arise in such case of gross delay. The same would be the case about the other submission of evidence being inconsonance with the prosecution case and/or supported by medical evidence, as the details of said aspects were already within knowledge of the investigating agency much prior to recording the statement of PW2 on 30.11.2004. Having regard to the same and so also having regard to the omission brought on the record from the evidence of PW2 makes it difficult to place reliance upon the claims staked by PW2 of being eyewitness for both the incidents. However, the same would not affect his claim of having acted as panch witness for spot panchanama Exh.65 on 14.9.2004 and for drawing a map on 25.9.2004 as hardly any material has been brought on record for not accepting the said claim apart from the same being found corroborated by Exh.65 and so ::: Downloaded on - 09/06/2013 15:47:02 ::: 65 also by the evidence of Investigating Officer PW16 and PW15 who had drawn map of spot.
75. Perusal of the evidence of Pralhad Shende PW3 reveals that on the date and time of incident while being in Pola festival having seen A2 with sword in his hand chasing Sunil Jawalkar sitting on Otta of Suresh Bharati. It reveals that at that time PW5 Neminath had given kick blow to A2 and sword in the hand of A2 having fallen down and then A3 having given stick blow on head of PW5 and A3 having asked A2 to lift his sword and assault PW5 and thereon A2 having lifted sword and having assaulted PW5 on leg and by then Sunil Jawalkar having ran away through the courtyard of Suresh Bharati and closed door from inside.
It also reveals that while PW3 was going to house had seen A2 and A1 with swords in house of Sunil Jawalkar.
Hence PW3 having been to said place and having pacified A1 not to assault Sunil Jawalkar. At that time Parashram Jawalkar had caught hold sword of A1. Hence Parashram had received bleeding injury to palm. At that time A2 having assaulted PW3 by sword upon wrist and having caused injury. It reveals that then wife PW3 i.e. PW6 Chabutai was applying bandage to the hand of ::: Downloaded on - 09/06/2013 15:47:02 ::: 66 Parashram Jawalkar. It reveals that thereafter PW3 had been to the house of Shriwallabha Dhoot for giving message about incident in Police Station and after some time had returned to house and seen towards house of Sunil Jawalkar from above the wall of his house. At that time he had seen A1 and A2 with swords in said house. A2 by sword having assaulted on neck Sunil Jawalkar who had been to the said place. Hence, Sushilabai Dhoot had taken him inside the house. It also reveals that thereafter A2 and A1 with crow-bar had broke open door of house of Sunil Jawalkar. PW3 has further deposed that thereafter he had been to other side of his house from which window of house of Sunil Jawalkar was visible and had seen that, both Sunil Jawalkar and PW8 Lochana Jawalkar were holding panels of door from inside and same was broken Sunil had fallen down on broken panel of door alongwith PW8 and, thereafter, A1 and A2 had assaulted Sunil Jawalkar by swords and then wife of PW3 i.e. PW6 Chabutai Shende had pulled PW8 in said house. His evidence discloses that thereafter A1 and A2 had entered house of Sunil Jawalkar and PW3 had heard shouts of assault. His evidence also discloses that A1 and A2 had been to the house of PW 5 to kill him. PW3 has also deposed that at the time of incident ::: Downloaded on - 09/06/2013 15:47:02 ::: 67 Chandrashekar Bulbule had been there to pacify A1 and A2 , however, they had killed Chandrashekhar. PW3 has also deposed that during incident A1 and A2 had assaulted PW10 Vishwasrao Jawalkar, Shashikala Jawalkar, Sunil Dhoot and PW8 by swords and caused injuries to them.
PW3 had deposed that A1 and A2 were suspecting that Sunil Jawalkar had illicit relations with Pushpa - daughter of A1 and six months prior to incident Sunil Jawalkar had given his bullock-cart to A1 and A1 had misappropriated the same.
76. Though the evidence of PW3 has been assailed by learned counsel for A1 and A2 , on the same counts upon which the evidence of PW2 was assailed i.e. alike PW2, PW3 also having acted as a panch witness on 14.9.2004 and being present while drawing a map on 25.9.2004 but still having not narrated anything about the incident to the Police and consequently his statement being recorded after about 10 days i.e. on 23.9.2004, his evidence being liable to be discarded for the same reasons for which the evidence of PW2 was liable to be rejected and in spite of such a submission being accepted for the evidence of PW2, still it is difficult to discard the evidence of PW3 on such ::: Downloaded on - 09/06/2013 15:47:02 ::: 68 count. It appears accordingly in view of the delay in recording the statement being of 10 days and not of about 2½ months or more as in the case of recording of statement of PW2. Though it is true that delay in recording of statement is sufficient to raise suspicion about claim staked by the concerned witness, still question of there being delay or otherwise being required to be decided in facts and circumstances of every case and no hard and fast rule of a particular time amounting to delay can be laid down. In the instant case having regard to the features about the same narrated hereinabove, the said delay of 10 days in recording statement of PW3 by itself cannot be said to be sufficient for discarding the claim staked by PW3 of being eye witness for the incident. Such a conclusion is inevitable as scrutiny of evidence of PW3 does not reveal any other significant contradiction or omission amounting to contradiction being brought on record during the cross-
examination for supporting the conclusion of PW3 being either got up witness or witness roped by the Police or being not eye witness to the incident. Needless to add that scrutiny of his evidence also does not reveal himself being specifically questioned by the defence regarding the reason for which his statement was recorded belatedly ::: Downloaded on - 09/06/2013 15:47:02 ::: 69 after 10 days.
77. In the same context scrutiny of the evidence of Pw3 reveals that as pointed by learned counsel for the accused the omission of PW3 having not stated while recording the statement of (a) A3 having asked A2 to hold sword and assault PW5, (b) Sunil Jawalkar and his family members were pacifying A1 and A2, (c) ig himself having requested A1 and A2 not to assault Sunil Jawalkar, (d) Sushila Dhoot having come out of the house, (e) that because of illicit relations between Sunil Jawalkar and Pushpa there was dispute in between Sunil Jawalkar and A1 and A2, (f) that A2 as per say of A3 having given blow by sword on the leg of PW5 and (g) that A4 and A5 were present on the spot, being brought on record and duly established at the trial. However, considering the nature of aforesaid omissions, excepting omission mentioned at Sr. No. (f), the remaining clearly appear to be in the nature of furnishing details about the incident, it is difficult to accept that the same can be said to be affecting core of the testimony of PW3. Having regard to the same, it is difficult to find any fault with such a conclusion arrived by the trial Court and recorded in paragraph no. 28 of ::: Downloaded on - 09/06/2013 15:47:02 ::: 70 judgment impugned. Similarly considering other answers given by PW3 during the cross-examination and found duly recorded by trial Court in paragraph nos. 29 and 30 of the judgment impugned and the same failing to reveal any significant material being elicited on the record for not accepting the evidence of PW3, his evidence deserves to be accepted for all the remaining matters excepting the said omission pertaining to the overt act of A3 brought on record.
78. Now reverting to the evidence of the first informant PW4 Bhaskar, his evidence reveals that at about 5.00 p.m. while he was present in Pola festival with bullocks and Sunil Jawalkar was sitting in front of house of Shamrao Gadmade on Otta. PW4 has also given an account of incident corroborating the account given by PW3. He had also deposed of having taken injured PW5 along with him and while going to house had seen A1 taking sword from his house. It reveals that when he had gone to his house along with PW5 at that time Sunil Dhoot had come to his house but his mother had asked Sunil Dhoot to go to house of Sunil Jawalkar as he received serious injuries and hence, Sunil Dhoot had gone to the ::: Downloaded on - 09/06/2013 15:47:02 ::: 71 house of Sunil Jawalkar and he also followed Sunil Dhoot.
79. The evidence of PW3 further reveals that then A1 and A2 with swords were standing in courtyard of house of Sunil Jawalkar and villagers were pacifying them.
At that time A4 and A5 were also present at said place. It reveals that he had returned to his house and again had been to house of Sunil Jawalkar after 15 minutes and then A4 and A5 had asked A1 and A2 to assault him and A2 had given blow by sword on his stomach but he caught hold the same, however, A1 had assaulted him by blunt side of sword on his back and hence PW4 ran away from that place. It reveals that A1 and A2 had chased him upto the house of Sitaram More and then their swords and clothes were stained with blood. It further reveals that PW4 along with Manish had hidden in house and then A1 had been to his house and had asked his mother to send PW5 out of house as A1 wanted to kill him. However, maternal aunt of PW4 having apologized A1, he had returned. His evidence also discloses similar reasons for the incident as deposed by PW3 i.e. transaction of bullocks in between Sunil Jawalkar and A1 and so also A1 suspecting about prevailing of illicit relations in ::: Downloaded on - 09/06/2013 15:47:02 ::: 72 between Sunil Jawalkar and daughter of A1- Pushpa. His evidence also discloses of having given oral report Exh.70 of incident to PW16 A. P. I. Gotmare and upon the same offence was registered against Accused Nos. 1 to 3.
80. The scrutiny of the evidence of PW4 also reveals somewhat similar position as that of PW3 regarding the omissions brought on the record during cross examination of PW4. Such a conclusion is obvious as scrutiny reveals that omission on part of PW4 to narrate the police of (a) A2 having lifted sword as per say of A3, (b) A1 being also present in Pola Festival and tried to climb wall of house of Suresh Bharati from the side of house of Doma Gadmade and (c) PW4 having followed Sunil Dhoot to go to the house of Sunil Jawalkar being brought on the record and established during the course of trial. Now having regard to the core of the testimony of PW4 except the omissions of A2 having lifted sword as per say of A3 and PW4 had gone to the house of Sunil Jawalkar behind Sunil Dhoot the remaining omissions clearly do not appear to be in the nature of contradiction as rightly observed by the trial court in paragraph no.33 of the judgment impugned.
::: Downloaded on - 09/06/2013 15:47:02 ::: 7381. However during the cross-examination of PW4 it has been brought on record that Sunil Jawalkar has executed a sale receipt Exh.74 and 75 for purchase of one bullock-cart and two bullocks from A1 and PW4 being attesting witness for the same. The matters from cross examination also gives an impression that A1 had been to Pola Festival after A2 had fallen on ground and at that time A-1 was not carrying sword. Similarly the same also given an impression that about 25 to 30 villagers present at the house of Sunil Jawalkar were pacifying A1 and A2 when PW4 for first time had been to the said place and then PW4 had halted only for 2 minutes. At that time A4 and A5 were also present. Similarly as pointed by learned counsel for A1 and A2 the cross examination of PW4 reveals of himself having admitted that he has no personal knowledge how all the persons died in that incident and how other persons had received injuries except injuries received by himself and PW5.
82. Additionally the answers given by PW4 in cross examination also reveals that distance in between house of Suresh Bharati and Shamrao Gadmade being of 50 ft. and ::: Downloaded on - 09/06/2013 15:47:02 ::: 74 according to him Sunil Jawalkar and PW5 had received injuries in front of house of Shamrao Gadmade.
Significantly enough PW4 has also admitted of having given report only against A1 to A3 and so also having not seen causing of deaths in house of Sunil Jawalkar but having reported about the same while lodging his report as per information received from villagers. PW4 has specifically admitted that villagers pacified A1 and A2 and hence he had returned to his house and hence himself being not aware as to what had happened thereafter at house of Sunil Jawalkar.
83. Thus considering the aforesaid aspect which were duly taken into consideration by the trial court there appears substance in the submissions canvassed by learned counsel for A1 and A2 that it is difficult to accept his claim of being witnessed to the second part of the incident. However, having regard to the fact that he has lodged the report promptly with PW16 at 1715 hours it is difficult to accept that evidence of PW4 is liable to be discarded in entirety on the said count or on the count of prosecution having not produced his injury certificate and/or his claim of having received injury being belied due ::: Downloaded on - 09/06/2013 15:47:02 ::: 75 to non-production of the same by the prosecution. Thus evidence of PW4 regarding first part of incident excepting the omission regarding the overt act committed by A-3 is not be liable to be discarded.
84. The reference to the evidence of Neminath Baiskar as P.W. 5 reveals of having staked a claim of being present in Pola Festival and then Sunil Jawalkar was sitting on Otta of Suresh Bharati and after hearing shouts having seen A2 giving blow by sword on the hand of Sunil Jawalkar and because of which fingers of Sunil Jawalkar were cut and fell down on the ground and himself having rushed at the said place, having given kick blow to A2 and A2 having fallen on ground. Then A3 having assaulted on his head by stick, PW5 having fallen down and received injury to his head. PW5 also having claimed of as per say of A4 and A5, then A2 having lifted sword and assaulted him on his right leg and the same was fractured. PW5 has also claimed that at that time A2 had been at said place there and had asked A2 to kill him firstly. He has further claimed of thereafter A1 and A2 having rushed behind Sunil Jawalkar and PW5 being injured was returning to his house along-
with PW4 and Manish Dodke. He has claimed that after ::: Downloaded on - 09/06/2013 15:47:02 ::: 76 coming up to the house of Sunil Jawalkar having seen A1 and A2 pushing door of said house by sword. PW4 has deposed that thereafter he had gone to his house and concealed himself inside the house and after 20 to 25 minutes A1 and A2 had been to his house and was asking to send him out of house to kill him. However, maternal aunt of PW5 Dropadabai having apologized; A1 had returned. His evidence reveals that thereafter tractor of Shriwallabha Dhoot had been at the said place with all injured therein and himself having boarded the same. He had also claimed of being admitted for treatment for six days at District Hospital, Yavatmal. He identified stick by which he was assaulted and also identified his clothes seized by Police.
85. The scrutiny of his evidence in light of the submission canvassed by the learned counsels for the accused reveals of PW5 having not stated to the police that A1 had asked A2 to kill him first and so also PW4 being along with him while he was returning to his house.
He has claimed of first part of incident having taken place in front of house of Shamram Gadmade. PW5 during cross examination has admitted that when A1 and A2 had come ::: Downloaded on - 09/06/2013 15:47:02 ::: 77 to his house he had not seen them and he had only heard their voice. He had denied that in Pola Festival Parashram Jawalkar had come to assault A2 by sword and scuffle had occurred in between A2 and Sunil Jawalkar and in that scuffle sword of Parashram Jawalkar had hit on the hand of Sunil Jawalkar. PW5 has also admitted during the cross examination that when he had been to his house PW4 was present and since then he had not gone out of his house till arrival of tractor of Shriwallabha Dhoot. PW5 had also specifically admitted that till he sat in the tractor of Shriwallabha, PW4 was present with him. Thus said answers make it abundantly clear that PW4 had not been to house of Sunil Jawalkar. Thus the same creates serious doubt of a claim of PW4 being assaulted there by A1 by sword on his back. Needless to add that such a claim is also not found supported by production of medical certificate. Similarly claim of PW5 of A4 and A5 being present at Pola Festival and having asked A2 to assault PW5 is apparently doubtful. Having regard to the aforesaid submission to the contrary effect urged by learned APP and recorded here-in-above will not deserve any credence.
::: Downloaded on - 09/06/2013 15:47:02 ::: 7886. The reference to the evidence of PW7 reveals of himself and PW5 having staked a claim of being present at Pola Festival and as per call having ran after PW5 and having seen towards house of Suresh Bharati, Sunil Jawalkar with his bleeding hand raised. PW7 has claimed that PW5 had given kick blow to A2 and sword in his hand has fallen and at that time A3 had given stick blow on the head of PW5 and hence he alongwith Parashram Jawalkar had gone to PW5 but A3 had assaulted him and Prashram Jawalkar by stick and A2 having lifted sword and assaulted on leg of PW5. PW7 has also claimed that time A1 had had been at the said place and thereafter both A1 and A2 had rushed behind Sunil Jawalkar towards the house of Sunil Jawalkar. PW7 has also claimed of thereafter having taken PW5 to his house, chained door and after some time having heard shouts of A2 calling PW5 to come out of house and ladies outside the house having pacified A2 having returned back. PW7 has also deposed of having kept injured PW5 in tractor of Shriwallabha Dhoot which had been to said place.
87. The reference to the cross-examination of PW7 reveals of himself having not narrated to Police that (a) ::: Downloaded on - 09/06/2013 15:47:02 ::: 79 when he had seen towards house of Suresh Bharati hand of Sunil Jawalkar was raised and it was bleeding, (b) he had gone to PW5 alongwith Parashram Jawalkar, (c) of A2 having assaulted PW5 by sword upon leg, (d) A1 and A2 were wandering in the village along with swords, (e) ladies present in front of his house had pacified A2. The same also reveals of PW7 having admitted A2 having assaulted PW5 in front of house of Shamrao Gadmade and when he was in house of PW5 he had not seen who had been to his house and only on hearing voice he was saying that A2 had been to house of PW5.
88. The evidence of PW6 Chabutai Shende reveals that on the date of incident at about 5.00 p.m. PW8 Lochana had given call to her saying that fingers of hand of father of Amol had cut hence PW6 had been to house of PW8 and having seen that fingers of left hand of Sunil were cut and he had received bleeding injury at left hand.
It also reveals that then PW8 that time had gone for bringing Detol. PW6 claimed that Sunil Jawalkar told her that A2 had assaulted him by sword in Pola festival. PW6 had further claimed that by that time both A1 and A2 had come to the house of Sunil Jawalkar with swords in their ::: Downloaded on - 09/06/2013 15:47:02 ::: 80 hands, Parasram Jawalkar was pacifying them ,however A2 assaulted Parashram on his hand by sword. Thereafter Parashram went in house and PW6 wrapped cloth on injured hand of Parashram, Sunil Dhoot come there and upon his shout to open door of the house of Sunil Jawalkar, his wife Sushila Dhoot opened door and took him in the house. PW6 saw bleeding injury on neck of Sunil Dhoot which he had pressed by hand. PW6 claimed that Sunil Dhoot told them that A2 assaulted him by sword on his neck. She claimed that thereafter they had closed door and after about 5 minutes both A1 and A2 started breaking door hence Sunil Jawalkar and PW8 had pressed door of the house from inside and Sunil Jawalkar was telling A1 andA2 not to assault him as he has small children and his wife remains ill, however A2 threatened Sunil Jawalkar to come out of the house as he wanted to kill him. PW6 further deposed that thereafter A1 and A2 broke open the door, Sunil Jawalkar and PW8 fell down on broken panels of door and thereafter A1 had assaulted Sunil Jawalkar by sword on his neck and A2 had assaulted Sunil Jawalkar by sword on his legs. Since PW8 had received injury on face; PW6 had pulled her on one side and A1 accused threatened her to go away and at that ::: Downloaded on - 09/06/2013 15:47:02 ::: 81 time Parashram Jawalkar had hidden himself below the cot. PW6 has deposed that thereafter she had been to her house and from window seen at house of Sunil Jawalkar and had seen A1 and A2 in the courtyard of house of Sunil Jawalkar with clothes and swords stained with blood. PW6 has also deposed that there was rumour in village that A1 had sold bullock-cart of Sunil Jawalkar and Sunil Jawalkar had illicit relations with daughter of A1.
89. Now reference to the cross-examination of PW6 though reveals that number of omissions were brought on the record qua her statement recorded by the Magistrate, still the material omissions were regarding PW6 having not told the Magistrate recording her statement that (a) Sunil Jawalkar told her that A2 had assaulted him by sword in Pola festival, (b) A1 and A2 had been to the house of Sunil Jawalkar with swords in hands, (c) she had taken Parashram Jawalkar in house and closed door , (d) Sunil Dhoot had asked Sunil Jawalkar to open door of the house and Sushilabai Dhoot had taken him in house by opening door of the house, (e) A2 had threatened Sunil Jawalkar to come out of the house, (f) PW8 Lochana and Sunil Jawalkar had fallen down on broken panels of door, (g) A1 ::: Downloaded on - 09/06/2013 15:47:03 ::: 82 had assaulted Sunil Jawalkar on his neck and A2 assaulted him by sword on his legs, (h) when A1 and A2 had come out of house of Sunil Jawalkar their clothes were stained with blood, (I) she learnt that accused Maroti had sold bullock-cart of Sunil Jawalkar and Sunil Jawalkar had illicit relations with daughter of A1.
90. Similarly the cross-examination also reveals the omission qua her statement recorded by Police were brought on the record and duly established to the effect of PW6 having not narrated to I.O. PW16 that (a) when Parashram Jawalkar was pacifying A1 and A2 at that time A2 assaulted him on his hand, (b) Sunil Dhoot had given call to Sunil Jawalkar to open door of the house, (c) after taking Sunil Dhoot inside the house the door of house was closed, (d) as PW8 had received injury on her face, she had pulled her on one side, (f) PW6 had seen through window of her house and had seen A1 and A2 in the courtyard of house of Sunil Jawalkar and their clothes were stained with blood. The same also reveals that statement of PW6 was recorded immediately after incident on 17-9-2004 while her statement under Sec. 164 of Cr. P. C. was recorded on 14-12-2004.
::: Downloaded on - 09/06/2013 15:47:03 ::: 8391. From cross-examination of PW6 it appears that when she had gone to the house of Sunil Jawalkar Sushilabai Dhoot, Laxmibai Jambhekar and Sunita Warthi were already present at the house of Sunil Jawalkar, however Laxmibai Jambhekar and Sunita Warthi had left house of Sunil Jawalkar prior to her. Now truly speaking her evidence does not seem to have ig been shattered during the cross-examination as the omissions are apparently upon minor aspects. Similarly considering nature of incident which had occurred in the said village, it is difficult to accept the submission of learned counsel for A1 and A2 that her evidence is liable to be discarded in view of her statement being recorded after 3 days. On the contrary the core of her testimony having remained unshattered, her evidence deserves to be accepted.
92. Now reference to the evidence of PW8 Lochana wife of deceased Sunil reveals that at the time of incident while she was present at her house Parashram Jawalkar had rushed to the house and was followed by Sunil Jawalkar with bleeding injury to the left hand and she had ::: Downloaded on - 09/06/2013 15:47:03 ::: 84 taken him inside the house and seen that two fingers of Sunil were cut and others were injured. It reveals that she had given call to PW6 and accordingly she had been to her house and similarly Sushila Dhoot and Sunita Warathi had also come to her house. PW8 has deposed that as they were applying towel on the hand of Sunil Jawalkar he had told them that A2 had assaulted him by sword in Pola festival. PW8 has deposed that thereafter she had gone to the house of her mother for bringing Detol. She submitted that when she was returning back A1 and A2 were present in the courtyard of her house and A1 had abused her and so also given kick blow and thereafter she had gone in the house and closed door of the house. She has further deposed that as Parashram Jawalkar was injured he was also taken inside the house and thereafter she heard voice of Sunil Dhoot and hence had opened door. Her further evidence discloses that then she had seen bleeding injury upon neck of Sunil Dhoot and he had pressed his hand on his neck and she had also taken him in the house. PW8 had claimed of A4 then being present in courtyard while A5 and A3 being present near well in front of her house. PW8 claimed of Sunil Dhoot having told them that A2 had assaulted him by sword upon neck and thereafter PW8 ::: Downloaded on - 09/06/2013 15:47:03 ::: 85 having heard noise of breaking open door of her house and herself along with Sunil having pressed the same from inside but still the same having broken and herself along with Sunil Jawalkar having fallen down on broken door panels of her house in kitchen room. PW8 has deposed that thereafter both A1 and A2 started assaulting Sunil Jawalkar by swords and since A1 assaulted her by sword on her face and PW6 had pulled her to one side. She has deposed that then Parashram Jawalkar had hidden below the cot but A1 and A2 had pulled him out and assaulted by swords. She submitted that she had seen the same as the was sitting near Sunil Jawalkar in kitchen room of her house. PW8 claimed that A2 had also given abuses to her and had asked A1 if she should be killed. She claimed that A1 had asked if Sunil Dhoot died.
93. PW8 claimed that thereafter she had become unconscious and regained consciousness in District Hospital, Yavatmal. PW8 has deposed of being admitted for about five days and thereafter being referred to Medical Hospital, Nagpur and after discharge from hospital having been to house of her uncle at Waghapur. PW8 had identified clothes seized from her by Police and claimed ::: Downloaded on - 09/06/2013 15:47:03 ::: 86 that since her teeth were stitched she was not in a position to speak and hence her statement was recorded late by police. She had also identified swords seized in the case.
94. During cross-examination of PW8 it was brought on record that while recording her statement by PW S.P. Pawar, she had not narrated that (a) place of Badam tree where A1 and A2 were present in the courtyard of her house, (b) she had closed door of the house after going in house, (c) wife of A1 had been to the house of Sunil Jawalkar , (d) she fell down along with Sunil Jawalkar on broken panels of door of her house, (e) she was sitting near Sunil Jawalkar and at that time he was assaulted, (f) as her teeth were stitched she was not in a position to talk.
95. In addition to the aforesaid PW8 during cross-
examination had admitted that she had not personally seen how Parashram Jawalkar and Sunil Dhoot had received injuries and she was not knowing whether Shashikalabai, PW10 and Archana were present and PW8 had not seen them till she had become unconscious.
However she claimed that Sushila Dhoot and PW6 were present in her house and had seen complete incident.
::: Downloaded on - 09/06/2013 15:47:03 ::: 87PW8 also admitted that at the time of incident she had seen swords in the hands of A1 and A2 from a distance of 3 to 4 hands.
96. PW8 during cross-examination had specifically denied that both the swords are of her house and hence she had identified the same and that at the time of incident both Sunil Jawalkar and Parashram Jawalkar were under influence of liquor and they received injuries from each other as they were moving swords under influence of liquor. She also specifically denied that Sunil Dhoot and Chandrashekhar Bulbule were also under influence of liquor and had received injuries from swords of Sunil Jawalkar and Parashram Jawalkar. She also specifically denied that as she had gone there to control Sunil Jawalkar and had received injury of the sword of Sunil Jawalkar. She specifically denied that she had subsequently given a false statement to police. However during cross-examination she admitted that as she was in the house and door of the house was closed she had not seen what happened outside that room. She had also not stated at that time who were present near well in front of her house. During cross-
examination she admitted that accused Nos . 3 to 5 had no ::: Downloaded on - 09/06/2013 15:47:03 ::: 88 enmity with Sunil Jawalkar and they had cordial relations with him. She also admitted that accused Nos. 3 to 5 had also cordial relations with Sunil Dhoot and Chandrashekhr Bhulbule.
97. Having regard to the fact that PW8 had sustained injury, in an incident which had occurred at her house, and thus PW8 being most natural witness for the same and nothing has been brought on the record during the cross-
examination leading to the conclusion that she was not present in the house at the time of incident makes it difficult to accept the submission canvassed on behalf of accused that her statement being recorded after delay, itself reveals that she had not witnessed the incident. It is difficult to accept the said submission in view of explanation given by the witness regarding the reason because of which her statement could not be recorded earlier also having remained unshattered during searching cross-examination effected. It is true that the prosecution has not examined the doctor for establishing that due to sustaining of such injury PW8 could not have given her statement earlier. However, merely because of the said facet, it is difficult to accept defence criticism that her ::: Downloaded on - 09/06/2013 15:47:03 ::: 89 evidence would be liable to be discarded on the count of herself being not eye witness to the incident. Needless to add that claim staked by PW8 having remained unshattered during the cross-examination, it is difficult to perceive need of other evidence corroborating the same before placing reliance upon the same. Such a conclusion is inevitable as evidence of PW8 considered as a whole does not reveal any matter necessitating corroboration to the reasons given by her due to which her statement could not be recorded earlier. The same is obvious as law does not unnecessarily demands plurality of evidence.
98. Similarly defence having not disputed fact of PW8 having sustained injury and prosecution having examined PW8 regarding relevant aspects including about the aspects of injuries suffered by her, it will be difficult to accept that by non-examining the doctor who had treated PW8, the prosecution had deprived opportunity to the defence to test the evidence of PW8. Similarly having regard to other evidence pertaining situation prevailing at the house of Sunil Jawalkar in the shape of evidence of PW2, PW16 and spot panchanama Exh.65 adduced on the record and the same or the prosecution case being not of ::: Downloaded on - 09/06/2013 15:47:03 ::: 90 all the victims assaulted in the house of Sunil Jawalkar being assaulted at one place and or in one room, merely because PW8 having not deposed about the assault upon Chandrashekhar, Parashram and Sunil Dhoot cannot be said to be a feature affecting the evidence of PW8 and particularly the evidence of PW8 having revealed that place at which the other persons were assaulted in her house were not within her sight and or after part of the incident was over she has become unconscious i.e. before completion of entire incident which had occurred at her house.
99. Now reference to the evidence of Deu Shelke P.W.9 reveals that on the date of incident at 5.00 p.m. while being at Pola festival he had seen PW5 then laming and PW4 Bhaskar and Manish Dodke were present with him. It also reveals of himself having seen A2 chasing Sunil with sword in his hand and A1 was also going behind them. It also reveals of A1 and A2 being to their house and A1 having taken Sword from the house had taken sword from his house and both of them had been to the house of Sunil Jawalkar. PW9 claimed of being to the said place and having seen Parashram Jawalkar pacifying A1 and A2 ::: Downloaded on - 09/06/2013 15:47:03 ::: 91 and having caught hold sword in the hand of A1 and Sunil Jawalkar in the house also saying for not to assault him and he will leave the village. His evidence also reveals that PW3 and Sitaram More were also pacifying A1 and A2 and having seen A2 assaulting Parashram on hand and Prashram Jawalkar going in house of Sunil Jawalkar. His evidence further reveals that thereafter he had gone towards door of courtyard of house of Sunil Jawalkar and then having met A3, A4 and A5 and having requested them to separate the quarrel but A4 had asked A2 and A1 to kill Sunil Jawalkar and others and thereafter PW9 had been in Baiskar square. It also discloses that after some time he had seen A1 and A2 in Baiskar square with clothes and swords stained with blood. It further discloses that A2 intended to give a blow on stomach of PW4 Bhaskar Baiskar present at the said place, however, PW4 saved himself but A1 assaulted PW4 on back by sword from backside of his sword. PW9 also claimed that A1 and A2 had been house of PW5 to kill him and called him out but Dropadabai and mother of PW5 had requested A1 not to kill PW5 and hence A1 had returned from said house. PW9 has deposed that A1 was suspecting that Sunil, had illicit relations with Pushpabai and on that count this quarrel had ::: Downloaded on - 09/06/2013 15:47:03 ::: 92 taken place.
100. The scrutiny of the evidence of PW9 reveals that out of number of omissions brought on the record the omissions proved during the course of trial were to the effect of PW9 while recording his statement by PW2 Dy.
S.P. Pawar had not stated that (a) A2 was chasing Sunil Jawalkar and A1 was followed him. (b) in the courtyard of house of Sunil Jawalkar, Parashram Jawalkar was requesting A1 not to assault Sunil Jawalkar (c) Sunil Jawalkar was requesting A1 not to assault him and he will leave the village. (d) Sitaram More and PW3 were also requesting A1 not to assault Sunil Jawalkar, (e) A2 assaulted Parashram by sword on his hand. (f) both A1 and A2 were insisting PW5 to come out of the house, (g) as Sunil Jawalkar had illicit relations with Pushpa A1 and A2 had assaulted him. Now considering the nature of these omissions being details furnished about a particular aspect it is difficult to accept that the same can be construed as an omissions amounting to contradictions affecting core of the claim of PW9 of having seen the matters claimed by him.
::: Downloaded on - 09/06/2013 15:47:03 ::: 93101. However the cross examination of PW9 also reveals that he was not knowing happening in Pola festival and had no talk with PW5, Sunil Jawalkar, Manish Dodke and PW4. The same also gives impression of PW9 had halted in courtyard of house of Sunil Jawalkar only for 5 to 10 minutes and thereafter he had not been to the said place on that day. PW9 had also admitted that he had not seen any injury on the back of PW4.
ig PW9 has also admitted that when A1 was Sarpanch of village no confidence motion taken against him was passed and then PW4 had acted against A1 in passing same.
However, PW9 had denied that he had acted against A1 as PW9 was intending to become Sarpanch of village. He also specifically denied that on that count he was on cross terms with A1. However, PW9 during cross examination has admitted that he was not knowing as to which of the accused was the author for killing a particular victim. and happenings inside house of Sunil Jawalkar were not visible from door of courtyard of said house. He has also admitted of having not seen Parashram Jawalkar in courtyard of house of Sunil Jawalkar and having met him near door of courtyard and from said place Parashram Jawalkar had gone to his house and by that time quarrel had come to an ::: Downloaded on - 09/06/2013 15:47:03 ::: 94 end. PW9 also admitted that after this incident A4 and A5 were present in village till they were arrested on 4-12-2004. PW9 has also admitted that during that time there was rumour in village that if A4 had intervened the quarrel, four persons could have been saved. PW9 also admitted that hence, he had decided that A4 must be punished for his act.
102. Now considering the fact that statement of PW9 was recorded on 25.9.2004 i.e. not much after delay and candid admissions given by PW9 during his evidence and thus his evidence not revealing any attempt to suppress any matters or to tell the falsehood, it is difficult to accept submission of learned counsel for A1 and A2 that evidence of PW9 is liable to be rejected on the count of the statement being not immediately recorded in spite of his evidence revealing that after the incident he was present in the village. As observed earlier, it is difficult to draw such a conclusion on the backdrop of the situation which was prevailing in said village after occurrence of incident in which during the day time four persons were killed and/or four were injured.
::: Downloaded on - 09/06/2013 15:47:03 ::: 95103. Now reference to evidence of injured Vishwasrao Jawalkar PW10 reveals that after hearing shouts of people he had started returning to his house along with Tejaswini-
daughter of Parashram Jawalkar but he required time to reach the same as bullocks were returning and he had gone to his flour mill for urinal after leaving Tejaswini. He claimed of then A4, Shashikala i.e. wife of PW10 with bleeding injury on her left hand standing in the courtyard of his house. His evidence reveals that thereafter A1 and A2 had come out of his house with their clothes and swords stained with blood. He deposed that A1 had assaulted Shashikalabai by wooden plank, but since he had caught her he had received injury by wooden plank at his leg. He claimed that A1 had thrown wooden plank on roof of his house and at that time A4 was insisting that all persons from his family and group should be killed. PW10 also claimed that at that time A3 and A5 were standing near the gate of courtyard of his house. PW10 claimed that thereafter he had fainted and regained consciousness when he was taken to hospital in tractor. PW10 deposed that before 4 to 5 months of this incident he had given his bullock-cart to A1 and he had sold the same and so also the amount of Rs. 2500 of grocery articles was also ::: Downloaded on - 09/06/2013 15:47:03 ::: 96 outstanding from A1. PW10 deposed that on said count quarrel had taken place. PW10 during his evidence identified clothes being his clothes seized by Police.
104. The scrutiny of the evidence of PW10 reveals that out of number of omissions brought on the record the omissions proved during the course of trial were to the effect of PW10 while recording his statement by PW23 PSI Kulkarni had not stated that (a) because of bullocks PW2 had become late in returning back to his house. (b) Shashikala was standing in the courtyard of his house and at that time A1 and A2 had come out of his house. (c ) A3 and A5 were standing near door of courtyard of house of Sunil Jawalkar and they followed A1 and A2 when they returned back from the house of Sunil Jawalkar. (d) he had seen A1 and A2 going to the house of PW5 and returning back from there. (e) he had become unconscious and regained consciousness when he was taken to hospital in tractor. Now considering the nature of these omissions being regarding details about a particular aspect it is difficult to accept that the same can be construed as an omissions amounting to contradictions affecting core of the claim of PW10 of having seen the matters claimed by him ::: Downloaded on - 09/06/2013 15:47:03 ::: 97 which had occurred at his residence.
105. However the answers given by PW10 during the cross examination also reveals that he was not knowing what had happened in Pola festival and Sunil Jawalkar was looking after financial affairs of the house and the pair of bullocks and bullock-cart was given by Sunil Jawalkar to A1. PW10 also admitted of having no knowledge about the agreement regarding bullocks in between Sunil and A1 but denied that Sunil Jawalkar had sold bullocks and bulock-
cart to A1. During cross-examination PW10 admitted that he had not seen Sunil Jawalkar, Parashram Jawalkar, Sunil Dhoot and Chandrashekhar Bulbule in the courtyard of his house and four dead bodies lying in his house. PW10 also admitted that in his presence no one was killed in the courtyard of his house and Shashikalabai had also not told anything to him about causing of death of any person at his house. PW10 also admitted that from courtyard of his house and his flour mill the matters in his house were not visible.
106. Now considering the evidence of PW10 as a whole and the reason given by him because of which he has ::: Downloaded on - 09/06/2013 15:47:03 ::: 98 returned to his home and his evidence not revealing any attempt of making an improvement and the calamity which he had faced it is difficult to accept that his evidence would be liable to be rejected on the count of his statement being recorded after three days of the incident or that Badam tree referred by him from the courtyard being not found mentioned in spot panchanama Exh.65.
As observed earlier, question of delay in recording statements of witness by itself cannot be said to be a factor necessitating discarding of evidence of the said witness and no other factors being found in the evidence of PW 10, it is difficult to accept such submission canvassed on behalf of the accused. The same would be the case about reference made on behalf of the accused of Badam tree being not found mentioned in spot panchanama Exh.
65 as reference to the same in the said document cannot be said to have been imperative having regard to the reason and the purpose for which the same was prepared.
Needless to add that reference made by eyewitness to a particular aspect for denoting the location may not be found to be of foremost importance while preparing another document mainly for the other purposes.
::: Downloaded on - 09/06/2013 15:47:03 ::: 99107. Now reference to evidence of Vitthal Sahare as PW11 reveals that on the relevant date and time after returning from Pola Festival he was sitting on cot in varandha of his house alongwith Prabhakar Inawate and at that time A1 and A2 had been to him carrying blood stained swords and A1 threatened to kill him and told that he had already killed four persons and now wanted to kill him. It reveals of A1 having threatened him that if PW11 goes for lifting dead bodies then A1 would kill him at said spot. PW11 claimed that he had closed door and remained in house. PW11 deposed that quarrel had taken place as A1 had sold bullocks and bullock-cart of Sunil Jawalkar.
108. The scrutiny of his evidence reveals that during the cross examination it was brought on the record that PW11 while recording his statement has not narrated that A1 and A2 had come in the courtyard of his house and so also not narrated that A1 had sold bullock-cart of Sunil Jawalkar. Similarly answers given by PW11 during cross-
examination also reveals that in village Mozar Pola Festival is organized at two places, one festival is arranged by Shriwallabha Dhoot. This Pola Festival of Shriwallabha ::: Downloaded on - 09/06/2013 15:47:03 ::: 100 Dhoot is arranged since PW11 was Sarpanch of village.
PW11 admitted that he was taking his bullocks in Pola Festival of Shriwallabha Dhoot. During his cross-
examination he admitted that in respect of threats given to him, he had not given report to police. PW11 had also not told about the same to other villagers. From cross-
examination of this witness it appears that police had recorded statement of this witness after about three weeks of this incident. PW11 specifically denied that since the year 1995 he was on inimical terms with A1.
109. Thus considering the evidence of PW11 in proper perceptive it is difficult to accept the defence criticism that A1 would have made any extra-judicial confession to PW11. In true sense the narration made by A1 does not appear to be for purposes of making any confession but same is apparently for threatening and frightening PW11 from the rival group, for not giving any aid to the persons who were assaulted during the incident. Similarly PW11 having not staked claim of being an eyewitness for the incident, it is difficult to perceive that either he would have rushed to the police for lodging report or for getting his statement recorded. Thus it is difficult to accept the ::: Downloaded on - 09/06/2013 15:47:03 ::: 101 submission that evidence of PW11 does not inspire confidence.
110. In addition to the evidence of above referred main witnesses the prosecution has also adduced the evidence of the other witnesses either for corroborating the evidence of the said main witnesses and/or for establishing the other circumstances corroborating their evidence. In the said context considering the evidence of PW2 panch Vinayak Ban and PW3 Pralhad and I.O PW 16 API Gotmare the same reveals preparation of spot panchanama Exh.65.
The evidence of both these panch witnesses considered along with Exh.65 makes it abundantly clear of first part of incident had taken place on the Otta of Suresh Bharati at which PW16 had found blood stains and cut fingers lying near the steps of said Otta about which photographs were caused to be taken by PW16 through PW13 Kawadusing Ade and had seized blood stains and cut finger from spot.
Further perusal of spot panchanama in light of the evidence of main witness makes it clear that second part of an incident had taken place at the house of Sunil Jawalkar wherein PW16 had found blood stains in courtyard of house of Sunil Jawalkar. The matters from ::: Downloaded on - 09/06/2013 15:47:04 ::: 102 the spot panchanama makes it clear that house of Sunil Jawalkar and Parashram Jawalkar is situated in same courtyard and same in facing to north. The house of Sunil Jawalkar is having a shed used as a kitchen and to the south of the same exists room of house of Sunil Jawalkar with another room to east of the said room and there exists door to the room adjacent to kitchen of house. The matters from spot panchanama considered with the evidence of panch witnesses and PW16 makes it clear that said door of house was broken and blood was found in kitchen and on broken panel of door; similarly blood was also lying in inner room of house. PW16 had seized cut fingers were lying near the broken door along with blood stained soil; broken pieces of bangles, hair lying in kitchen;
broken clamp of sword lying in inner room of house along with simple soil and blood stained soil from said room and blood stained shirt, clamp of sword from the room. It appears that on eastern side of this house there is open place.
111. The said evidence pertaining to the spot further reveals of open courtyard being towards north side and shop of Sunil Jawalkar existing beyond the same and room ::: Downloaded on - 09/06/2013 15:47:04 ::: 103 of Parashram being towards eastern side of said shop and in between this shop and room of Parashram Jawakar, there existing approach way for coming to house of Sunil Jawlakar. The same also reveals of east-west village road being towards north of said house, with a well in between said road and courtyard of house of Sunil Jawalkar. It also reveals the house of PW2 being on other side of road while house of PW9 being on southern side while house of Chandrashekhar Bulbule is on eastern side and house of PW3 is on western side of said house. The prosecution has also produced on the record map Exh.107 got prepared by PW 16 API Gotmare through PW15. The evidence of PW15 also corroborates said facet.
112. The reference to the evidence of PW12 Pradip does not support the prosecution case of swords being recovered at the behest of A1 and A2; as during the cross examination PW12 has stated that he had been to Mozar for collecting information and at that time many villagers were present in that Police Chauki, however, police had called him and one Sainik to act a panch witness and when he had been to police chauki at Mozar he had seen both the sword kept on one table in that police chauki. At that ::: Downloaded on - 09/06/2013 15:47:04 ::: 104 time both A1 and A2 were present in another room of that police chauki and police having told that both the swords were seized from A1 and A2. PW12 further admitted during cross examination that clothes of A1 and A2 were also on table and police had told him that they had seized the same from A1 and A2. PW12 in clear terms admitted during cross-examination that swords were not seized in his presence. Hence, from cross-examination of PW12 it is clear that swords and clothes of A1 and A2 were not seized in in his presence. However, having due regard to the evidence of PW16 API Gotmare on record and the witnesses identifying swords in their evidence also to some extent corroborates prosecution case of swords being used by the assailants for causing the murders and injuries the witness.
113. Though it is the case of prosecution that while A1 and A3 were in police custody A1 had given memorandum statement in presence of panch witnesses PW13 to discover crowbar from his house and to discover groundnut, Gud and other articles from the field of Ramlal and accordingly A1 had discovered those articles presence of panch witnesses and A3 had given memorandum ::: Downloaded on - 09/06/2013 15:47:04 ::: 105 statement in presence of same panch witnesses to discover stick from his house and he had accordingly discovered the same, the evidence of PW13 having revealed of having not gone in the house of A3 and police had brought stick from the house of A3 and hence, he does not know from where police had brought that stick and having admitted that all the panchanamas were signed by him before 12.00 noon, but ig time written on different panchanamas are not tallying as per evidence of PW13 and crowbar allegedly seized in the case being not identified by any witnesses and sent to Chemical Analyser, Nagpur, the said evidence is not useful to the prosecution to advance its case except that of seizure of stick from the house of A3 in view of the evidence of PW16 investigation officer API Gotmare and the same to some extent affording corroboration to the evidence of the concerned eyewitnesses and in turn to the prosecution case regarding involvement of A3.
114. Now considering the reasoning given by the trial court in paragraph no.58 and 59 of the judgment regarding the circumstance of blood of all persons assaulted being not found on the swords, after taking into consideration ::: Downloaded on - 09/06/2013 15:47:04 ::: 106 the evidence of PW16 API Gotmare, PW5 Neminath and PW8 Lochana and that of panch witness PW13 Bharat regarding seizure of the clothes of injured, PW5, Shashikalabai and PW8, seizure of blood samples of A1 and A3, sending of articles to CA and the objection taken on behalf of the accused to the said said corroborative evidence, we find it difficult to find any fault with the said reasoning given by the trial court on the basis of correctly assessing the evidence and arriving at the conclusion that in view of different persons being assaulted by the said sword, the blood of all could not have been expected to be found on the said sword and hence it was necessary to mainly rely upon the evidence of the eyewitnesses.
115. Similarly after taking into consideration rational reasoning given by trial court in paragraph no.60 of the judgment for non-drawing of separate seizure memo for the articles seized from the spot being not fatal to the prosecution case and in paragraph no.61 of judgment for declining to draw the conclusion of non examine injured persons at trial also had received injuries, only on the basis of medical certificates of injuries sustained by them produced at trial and confining consideration about the ::: Downloaded on - 09/06/2013 15:47:04 ::: 107 relevant aspect only for the injured persons who were examined at trial, we do not deem it necessary to make any detailed dilation about the said aspect except adding that in light of cogent reasoning given no more dilation is necessary about said aspect.
116. Similarly after considering the reasoning given by the trial court after duly considering and assessing the evidence on record in paragraph no.62 of the judgment for not accepting grievance made by the accused persons for discarding evidence of witnesses on count of same being full of omissions and/or in paragraph no.63 due to same being related to the deceased and/or in paragraph no.64 due to some of them being inimical and/or in paragraph after para no.64 marked as 60 regarding non examination of material witnesses and in the next paragraph thereafter regarding statements of witnesses being recorded after delay and/or in paragraph thereafter of the prosecution having not established sufficient motive and in paragraph no.63 about the information being received by the police earlier oral report given by PW4 cannot be considered as an FIR, we do not deem it necessary to embark upon making detailed dilation for ::: Downloaded on - 09/06/2013 15:47:04 ::: 108 bi-fold reason i.e. firstly the said reasoning being correct and secondly many of the aspect from the same being already dealt during the discussion made earlier. At the cost of repetition we only add that only the material omission having contradictory effect upon the claims staked by the witnesses being relevant, the evidence of natural witness for an incident being not liable to be discarded on the count of himself being related with the victim and so also animosity being a double edge weapon the same alone can never be a ground for discarding the evidence of witness unless the same is found to be false and the law not requiring plurality of evidence and every cryptic information of cognizable offence cannot be equated with FIR and now it being well settled that in event of existence unimpeachable direct evidence of eyewitnesses non establishing of motive of crime would not be a significant factor, the same grievances were not rightly upheld by the trial court.
117. Similarly after carefully considering the reasoning given by the trial court after duly considering and assessing the evidence on record in paragraph thereafter wrongly numbered as 64 of the judgment for not accepting ::: Downloaded on - 09/06/2013 15:47:04 ::: 109 grievance made by the accused persons the evidence of other eyewitnesses in view of there being variance in their evidence and that of PW10 Vishwasrao and the one which in no uncertain terms reveals that trial court had correctly arrived at the conclusion of the said witness having reached the spot of incident after the incident was over and the said facet being candidly admitted by the said witness as such there being no contradiction between his evidence and the evidence of the other witnesses as tried to be agitated.
118. Similarly considering the evidence of PW19 and medical certificates Exh.152 and 153 regarding injuries which were found on the persons of A2 and A1 who had referred to him for examination and though during cross-
examination PW19 had admitted that injuries received by them might have caused by agricultural implements or by falling on it but himself having also admitted that injury No. 2 received by A2 was possible by fall on rough surface and medical certificates of said accused reveals that injuries received by A1 were contusions and injury No. 2 received by A2 was also contusion considered on the backdrop that PW5 had given kick blow to A2 when he had assaulted ::: Downloaded on - 09/06/2013 15:47:04 ::: 110 Sunil Jawalkar by sword in Pola festival and hence A2 had fallen down on the ground and sword from his hand had also fallen on the ground, the conclusion drawn by the trial court that under such circumstances causing of such a injuries to A2 were probable and both the accused had not received any serious injuries the prosecution was not liable to explain the said injuries and/or in such serious assault, there is possibility of receiving such type of simple injuries by A1 and A2 and as such the same is not fatal to the prosecution also cannot be faulted.
119. Similarly after considering the reasoning given by the trial court after duly considering and assessing the evidence on record in paragraph no.66 of the judgment i.e. the last paragraph before considering point no.2 framed for consideration, clearly reveals the trial court having rightly concluded of the defence version being improbable or not borne out from the evidence surfaced at the trial.
The said reasoning amongst other also reveals that the trial court has duly taken into consideration the allegation of deceased persons being under influence of liquor, the matters revealed from viscera report, the relevant day being festival day and possibility of villagers consuming ::: Downloaded on - 09/06/2013 15:47:04 ::: 111 liquor, the number of and nature of injuries on person of A1 and A2 and the number of and nature of serious injuries on the person of the deceased, weapon said to have been used in the incident. Thus the said reasoning being not apparently, arbitrarily, perverse and de-hors the record and on the contrary being rationally based upon preponderance of probability, we do not find any error being committed by trial court in not accepting the contention advanced on behalf of A1, A2 and A3.
120. Since it is settled legal position that without entertaining the unlawful objects envisaged by Section 141 of IPC, a person cannot be said to be member of an unlawful assembly and a question of such a person being a member being a question of fact and mere presence of a person by itself being no sufficient for coming to the conclusion of himself being member of unlawful assembly, we do not find any fault with the conclusion arrived by the trial court after assessment of an evidence surfaced at a trial and the one of which substantive part has been reproduced by us hereinabove after considering entire evidence and the same amongst other having not revealed that except PW5 any other eye witness having spoken the ::: Downloaded on - 09/06/2013 15:47:04 ::: 112 presence of all five accused during the first part of incident occurred at Pola festival or in other words the evidence of PW4 Bhaskar-first informant and PW7 Manish-
eyewitnesses for the said part having not established presence of A4 and A5 at the said place, we find no fault with the conclusion drawn by the trial court of the said accused being not present at the said place. Similarly even considering evidence of PW9 Deu Shelke and PW10 Vishwasrao, who had deposed about presence of all five accused persons at the time of incident that had taken place in the house of Sunil Jawalkar, the evidence of other witnesses does not precisely establish presence of A3 at house of Sunil Jawalkar. The evidence of PW2 Vinayak Ban to such effect is by way of omission. Having regard to the same and even evidence of PW9 and PW10 having failed to show any overt act on part of A5 and alleged overt act of A4 being of having instigated A1 and A2 to kill Jawalkar and others, we find it difficult to find any fault with the finding of the trial Court of prosecution having failed to prove that all accused persons acted in furtherance of their common object of unlawful assembly and thus none of the accused can be convicted for the act of other accused persons and as such the individual act ::: Downloaded on - 09/06/2013 15:47:04 ::: 113 committed by accused persons as established by the evidence will be considered.
121. Now considering evidence of prosecution witnesses it has become clear that at the time of incident which occurred at house of Sunil Jawalkar A1 and A2 had been at said house armed with sword to assault Sunil Jawalkar and others and had broken open door of house of Sunil Jawalkar and the acts thereafter committed by them, leads to no other conclusion of both of them had unauthorizedly entered the house of Sunil Jawalkar after making preparation to assault him and others and thus having committed offence punishable under section 452 of Indian Penal Code.
122. Now considering the reasoning given by the trial court in paragraph no.70 of the judgment, the same reveals that from the evidence of prosecution witnesses examined in the case it has become clear that (a) only PW4 had alleged overt act against A4 and A5 that they instigated A1 and A2 to kill Sunil Jawalkar and others at the house of Sunil Jawalkar. (b) as per evidence of PW5 both of them had instigated A2 in Pola festival to assault PW5.
::: Downloaded on - 09/06/2013 15:47:04 ::: 114(c) as per evidence of PW9 and PW10 only A4 had instigated A1 and A2 to kill Sunil Jawalkar and others at the house of Sunil Jawalkar. (d) since other witnesses have not stated about overt act of A4 and A5; the evidence of PW4, PW5, PW9 and PW10 which is also not in conformity with each other will not deserve any credence.
(e) as per evidence of said witnesses A4 and A5 had only instigated A1 and A2 to assault Sunil Jawalkar and others and had not participated incident and no separate charge was framed against A4 and A5 for the same. (f) hence in absence of evidence of other witnesses contention of prosecution cannot be accepted that A4 and A5 instigated A1 and A2 to kill Sunil Jawalkar and instigated A2 to assault PW5, hence they cannot be convicted for the same. (g) in absence of formation of an unlawful assembly A4 and A5 cannot be held responsible for the act of other accused persons and convicted for the same. (h) hence prosecution failed to prove any of the offences against A4 and A5.
Since the aforesaid findings are in consonance with the evidence on record, it is difficult to find any fault with the same.
::: Downloaded on - 09/06/2013 15:47:04 ::: 115123. Similarly the observation made by the trial court in paragraph no.71 of the judgment reveals that from evidence of PW8, PW6, PW3 and PW2, A1 and A2 had assaulted Sunil by swords and caused his death while as per the evidence of PW8, A1 and A2 had assaulted Parashram and caused his death while evidence of PW2, PW3 , PW6, PW8, A2 had assaulted Sunil Dhoot by sword on his neck and caused his death while from evidence of Vinayak Ban it appears that A1 had assaulted Chandrashekhar Bulbule and caused his death. The same further reveals that on the said basis trial court came to the conclusion that A1 was responsible for causing death of Sunil Jawalkar, Parashram Jawalkar and Chadrashekhar Bulbule and A2 is responsible for causing death of Sunil Jawalkar, Parashram Jawalkar and Sunil Dhoot. All the said observations made by the trial court being in conformity with the evidence narrated hereinabove, we are unable to find any fault with the same.
124. Similarly the observations made by the trial court in paragraph no.72 of the judgment reveals that from evidence of PW8 and PW6 it is clear that A1 had assaulted PW8 by sword on her head while from evidence of PW 10 it ::: Downloaded on - 09/06/2013 15:47:04 ::: 116 is clear that A1 had assaulted PW10 by wooden plank on his leg while from evidence of PW5 and PW4, PW7 along with evidence of other evidence it has become clear that A2 had assaulted PW5 by sword while from evidence of these witnesses it has become clear that A3 had assaulted PW5 by stick on his head while from evidence of prosecution witnesses it has become clear that prosecution could not examine Medical Officer who had examined these injured witnesses. Hence nature of injuries received by them has not come on record. There is no other evidence on record if injuries received by them were grievous in nature and were sufficient to cause their death.
Hence it cannot be considered that these injuries were caused with intention to kill them. However prosecution proved that A1 had assaulted PW8 and PW10 and A2 had assaulted PW5 by sharp weapon and A3 had assaulted PW5 by dangerous weapon like stick. Hence prosecution proved offence punishable under section 324 of Indian Penal Code accused Maroti, Vinod and Om Gadmade. All the said observations made by the trial court being again in conformity with the evidence narrated hereinabove, we are unable to find any fault with the same.
::: Downloaded on - 09/06/2013 15:47:04 ::: 117125. Similarly the observations made by the trial court in paragraph no.73 of the judgment reveals that from evidence of witnesses recorded in the case, it has become clear that A1 and A2 were holding swords and A 3 was holding stick at the time of incident. To prove the offence punishable under Section 4 r/w 25 of Arms Act, it is necessary to prove that Central Government had issued notification in respect of any area prohibiting possession of any particular arm in that area. However no such notification issued by Central Government is produced on record. Hence in absence of the same prosecution failed to prove the offence punishable under Section 4 r/w. 25 of Arms Act against accused persons. All the said observations made by the trial court being again in conformity with the evidence narrated hereinabove, we are unable to find any fault with the same.
126. Similarly the observations made by the trial court in paragraph no.74 of the judgment reveals that Sub Divisional Magistrate had issued promulgation under Section 37 of Bombay Police Act, prohibiting villagers from keeping in possession of arms like swords etc. The copy of order is produced on record. It being a public document ::: Downloaded on - 09/06/2013 15:47:04 ::: 118 can be taken into consideration. However the said is issued for the period from 13-8-2004 to 27-8-2004. There is no evidence on record that any such promulgation was in existence on the date of incident on 14-9-2004. Hence prosecution failed to prove breach of such promulgation by accused persons on the date of incident. All the said observations made by the trial court being again in conformity with the evidence narrated hereinabove, we are unable to find any fault with the same.
127. Similarly the observations made by the trial court in paragraph no.75 of the judgment reveals that that prosecution failed to prove any offences against A4 and A5 and hence they are to be acquitted from all the charges made against them also being in conformity with the evidence adduced on the record and such submissions made by the learned counsel for the A4 and A5 being found in conformity with the record during reappraisal of the entire evidence made by us, we do not deem it necessary to specifically dilate upon each of the submission made by the said learned counsel for A4 and A5.
::: Downloaded on - 09/06/2013 15:47:04 ::: 119128. From discussion made above it has become clear that prosecution proved offences punishable under sections 302, 452 and 324 of Indian Penal Code against A1 and A2 and proved offence punishable under Section 324 of Indian Penal Code against A3. All the said observations made by the trial court being again in conformity with the evidence narrated hereinabove, we are unable to find any fault with the same.
129. Now considering remaining question regarding sentence awarded by the trial Court, in light of the submissions canvassed by the rival parties, we are unable to find any fault with the sentences awarded to the accused no.1 to 3 except death sentence awarded to A1,on the counts for which they are found guilty and convicted by the trial Court as the same has been awarded in accordance with the principles behind sentencing the accused i.e. the same should be in accordance with the severity of the offence committed and sufficient to remove the element of criminality in him which has led to the commission of the relevant offence. Needless to add hence the same would not warrant any interference on our part except death sentence awarded to A1.
::: Downloaded on - 09/06/2013 15:47:04 ::: 120130. Now considering the question of sentence of death awarded to accused no.1, it appears proper to bear in the mind the principle governing awarding of such a sentence. In the same context the reference to the decisions of Hon'ble Apex Court in the case of Macchi Singh .vs. State of Punjab reported in AIR 1983 SC page 957 with regard to the question of awarding the death sentence and the aspect of rarest of rare case in paragraph no.32 observed to the effect:
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence in no case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life"
principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well ::: Downloaded on - 09/06/2013 15:47:04 ::: 121 withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
(1) Manner of Commission of Murder : When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community;
(2) Motive for commission of murder : When the murder is committed for a motive which evinces total depravity and meanness;
(3) Anti-social or socially abhorrent nature of the crime: when murder of a member of a schedule caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath. This would also cover bride burning and dowry death cases;
(4) Magnitude of crime : When the crime is enormous in proportion, for instance, when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed; and (5) personality of victim of murder : When the victim of murder is an innocent child or a helpless person or a public figure. If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account ::: Downloaded on - 09/06/2013 15:47:04 ::: 122 the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court must proceed to do so."
131. In the same decision after considering earlier decision in the case of Bachan Singh .vs. State of Punjab reported in AIR 1980 SC at page 898 the Apex Court about 'death sentence' further observed in paragraph nos. 33 and 34 to the effect :
"33. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case :
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability ;
(ii) before opting for the death penalty the circumstances of 'offender' also require to be taken into consideration along with the circumstances of the 'crime'
(iii) life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances, ::: Downloaded on - 09/06/2013 15:47:04 ::: 123
(iv) a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
34. In order to apply these guidelines inter-alia the following questions may be asked and answered :
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for death sentence ?
(b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
132. Now in the light of aforesaid guidelines considering all the circumstances relevant to offence of murders committed by A1 for which he has been awarded sentence of death by trial Court, after considering all the relevant facets, we are of considered opinion that the case cannot be said to be of rarest of rare nature warranting penalty of death. We are such a opinion as the facts established by the evidence though reveals that in the incident four persons were killed and four injured still the manner in which the incident had occurred makes it ::: Downloaded on - 09/06/2013 15:47:04 ::: 124 abundantly clear that though the incident had created terror in the said village hardly any evidence has surfaced on the record that crime was committed for the said purpose. On the contrary the evidence clearly indicates that incident had occurred in view of A1 and A2 were suspecting illicit relations of Pushpa daughter of A1 and sister of A2 with Sunil Jawalkar who was undisputedly a married person. Thus the crime committed has definitely a shade of resentment in the minds of father and brother of honour of daughter/sister being put at a stake due to the activity of deceased Sunil. The same also reveals that the episode had not commenced by act committed by A1 as apparently first part of incident commenced at Pola Festival since A2 had commenced attack upon Sunil. It is further clear that though A1 also had been to the said place, he was not then armed. It is indeed true that apart from Sunil three more persons were killed and four more injured during the episode, however, hardly any evidence has surfaced at the trial that since the commencement of the incident main A1 and A2 had planned to attack the said other persons. On the contrary taking over all account of the incident occurred as revealed form the evidence which is recited hereinabove, it is crystal clear that the other ::: Downloaded on - 09/06/2013 15:47:04 ::: 125 persons were assaulted due to their intervention for stopping/preventing and/or persuading A1 and/or A2 for not continuing their mission to assault Sunil Jawalkar. The same thus give an impression that the said acts had an impact upon the minds of A1 of being an obstacle in completion of mission which was commenced by A2 in retaliation of the act of destroying honour of his sister and daughter of A1. Without unnecessarily making reference to the number of cases it can be safely said that it has been repeatedly ruled by the Apex Court in number of an cases that the number of persons being assaulted and/or killed, and/or number of injuries being caused by itself will not be a factor making the case as "rarest of rare".
Having regard to the same and having regard to the age of A1, act committed by him being not for the purposes of having any material gain and the time at which the same was committed being also indicative of the same being not a pre-planned but occurred under the impulse of moment, in view of the aforesaid guidelines, we are unable to approve and/or confirm penalty of death awarded by trial Court to A1.
::: Downloaded on - 09/06/2013 15:47:04 ::: 126133. The aforesaid reasoning being based upon the principles led by the Apex Court in landmark decisions in the case of Bachan Singh and Macchi Singh (supra) and hardly any change having occurred in the said principles and all the further decisions being apparently based upon the same and the same being the case regarding the decisions relied by both the parties recited hereinabove upon the relevant aspects, we do not deem it necessary to make any threadbare dilation upon each of the said decisions.
134. However, still considering the manner in which the murders were committed by A1, the same exhibits the extent of element of criminality of A1, we are of the opinion that sentence of imprisonment of life with a direction not to release him before completing actual term of 20 years including the period already undergone in addition to the other sentences imposed by the trial Court would be adequate punishment on the basis of principle explained by this court after considering the decisions of the Apex Court regarding giving of such a directions for serving ends of justice i.e. in the case of decision of this Court in the case of Dipak .vrs. State of Maharashtra, ::: Downloaded on - 09/06/2013 15:47:05 ::: 127 reported in 2006 All M.R. (Cri) 686 to which one of us A.P. Lavande, J. was party.
135. In the premises aforesaid, the reference made by the trial court for confirmation of death penalty stands rejected. Criminal Appeal No.633/2008 preferred by A1 stands partly allowed to the extent of aforesaid modification while Criminal Appeal No.102/2009 preferred by A2 against conviction and sentences levied upon him and Criminal Appeal No.89/2009 preferred by State against the order of acquittal recorded for concerned offences against A3 to A5 stand dismissed.
136. The fees of Advocate R.R. Shrivastava, the learned appointed counsel ,are quantified at Rs.7500/-.
137. The Registry is directed to send the copy of this judgment to the Central Jail for furnishing the same to A1 and A2.
JUDGE JUDGE
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