Bombay High Court
State Of Maharashtra vs Bhimgonda Nagonda Parvate-Patil And ... on 3 March, 1998
Equivalent citations: (1998)100BOMLR50
Author: S.S. Parkar
Bench: A.P. Shah, S.S. Parkar
JUDGMENT S.S. Parkar, J.
1. All the above appeals are filed against the judgment and Order dared 15th April, 1994 delivered by the learned Special Judge, Kolhapur in Special Case No. 55 of 1993.
2. Then were in all seven accused who were facing various charges under Sections 147, 148, 341, 504, and 302 of IPC read with Section 149 of IPC and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in respect of murder of Baburao Laxman Hegacle, resident of Sulkud, Taluka Kagal. Dist. Kolhapur on 4th March, 1993 at about 7.45 a.m. in front of the house of one Seedgonda Veergonda Parvate on the road between Sulkud and Kagal, By the impugned judgment and order of the Special Judge Accused Nos. 1, 4, 6 and 7 were acquitted of all the charges which were levelled against them. The State has, therefore, filed the above appeal against the order of acquittal being Criminal Appeal No. 7 of 1995. So far as the rest of the accused Nos. 2, 3 and 5 are concerned they had been acquitted of the offences under the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and they were also acquitted under the provisions of Sections 147, 148 and 149 of IPC. However, they were convicted for the offence punishable under Section 341 read with Section 34 of IPC and were sentenced to pay a fine of Rs. 2000/- in default to suffer SI for 1 5 days and were also convicted under Section 302 read with Section 34 of IPC and were sentenced to life imprisonment. Against the said order of conviction accused Nos. 2 and 3, who are real brothers, have preferred Criminal Appeal No. 403 of 1994 and accused No. 5 has preferred Criminal Appeal No. 346 of 1994. As all these appeals arise against (he judgment and order dated 15.4.1994 in Special Case No. 55 of 1993 in respect of the incident dated 4th March, 1993 where all the appellants in two appeals and the respondents in State appeal were accused, all these appeals are being disposed of by this common judgment. Since all these appeals arise against the common judgment and order, we had heard the Counsel from both sides at length in all the appeals. Mr. Chitnis appeared with Mr. M.S. Mohite on behalf of the accused Nos. 1, 2 and 3 and Mr. Marwadi appeared on behalf of Accused No. 5 and Mr. Rajiv Mohite appeared on behalf of Accused No. 7. Mr. Mundargi appeared on behalf of original accused Nos. 4 and 6. The learned Additional Public Prosecutor appeared on behalf of the State in all the aforesaid appeals.
3. The prosecution arose in the following circumstances : The deceased and his brother, complainant P.W. 1- Balasaheb Laxman Hegade and all the accused are the residents of the same village by name Sulkud in Taluka Kagal. Dist. Kolhapur. The deceased belonged to the scheduled caste of Mang community. The incident had taken place in the morning at about 7.45 a.m. on 4th March, 1993 in the area of village Sulkud on the road which leads to Kagal. The deceased had purchased land being Gat. No. 149 from Baburao Parvate (P.W. 18) about 7 to 8 years before the date of incident. The said land was purchased along with the pipeline in respect of which there was a dispute between the family of the deceased and the complainant on the one hand and the accused Nos. 1 to 3 who are father and sons, as they owned land adjoining to the said gat number. There was previous dispute between these parties on account of the pipeline. The deceased had filed a civil suit which resulted in favour of the accused. There were also chapter proceedings between the two parties. The accused belonged to the two families, accused Nos. 2 and 3 being the sons of accused No, 1 while accused Nos. 4, 5 and 6 are the brothers inter se. It has come on record that the deceased had filed a complaint at Kagal Police Station against the accused No. 1 as a result of which the pipeline of accused No. 1 was attached by the police.
4. On the date of the incident the deceased had boarded ST bus from Sulkud as he wanted to go to taluka place at Kagal. He was accompanied by P.W. 18 by name Baburao Parvate Patil from whom he had purchased the Gat No. 149 along with the pipeline in respect of which there was dispute between the parties. At the place of offence which is near Sulkud ST bus stand where the deceased had boarded to go to Kagal. the bus was halted by accused Nos. 2 and 3 by waiving the hand with a request to stop the bus. The said ST bus was stopped on their request by the driver of the bus who is examined as P.W. 5 by name Dadasaheb Shinde. After the ST bus was stopped, accused Nos. 2 and 5 went into the bus and made the deceased and P.W. 18 to get down from the bus, P.W. 4 Vijubai who was travelling in the said ST bus was witness to this act on the part of accused Nos. 2 and 5. After the deceased got down from the ST bus at the behest of accused Nos. 2 and 5 the ST bus proceeded on its onward journey towards Kagal. Around that time, P.W. 1 Balasaheb Hegade. the brother of the deceased happened to go to pan shop for eating tobacoo. P.W. 2 Ramesh Dabhole and P.W. 3 Martand Hegade, another brother of the deceased also happened to be at the place of pan shop at that time. These witnesses noticed the seven accused persons armed with various weapons like bamboo sticks, swords and axes assaulting the deceased. It appears that P.W. 18. the vendor of Gat No. 149, who was also made to get clown from the ST bus, disappeared leaving the deceased alone in the hands of the accused. As soon as the assault was seen by the complainant P.W. 1 and his brother. P.W. 3 and P.W. 2 Dabhole. P.W. 1 went to P.W. 9 Leghare for taking his jeep in order to go to Kagal for informing the police about the incident. P.W. 3 Martand was asked by the complainant to go to their house in order to take care of the lady members of the household. These two brothers were sitting together when the complainant along with other witnesses i.e. P.W. 2 and P.W. 9 Leghaie rushed to Kagal Police Station. The complainant informed the Head Constable (P.W. 20) Balasaheb Koli. who was then in charge of the station diary at Kagal Police Station, that the accused were assaulting his brother Baburao with sticks, axes and swords and requested him to go with him to the place of offence. P.W. 20, Mead Constable Balasaheb Koli asked another Police Constable Angathekar to inform PSI Survase (P.W. 24} and made brief entry in the station diary at Sr. No. 13 at about 8.40 a.m. about the incident. The said entry in the station diary has been produced at Exhibit No. 59. The entry No. 13 mentions the name of the complainant Balasaheb who informed that his brother Baburao was being assaulted by the 7 persons from his village naming the seven accused with the help of axes, sticks, and swords and therefore requested to send the police force immediately. The entry further mentions that Head Constable Angathekar was sent to inform the matter to PSI along with the complainant. There is another entry at Sr. No. 14 in the station diary made at 8.50 a.m. which mentions that there was a telephone call from Angathekar informing that the incident had been narrated to PSI and he along with other Police Head Constable and Constable and the complainant: proceeded in the jeep to the place of offence in village Sulkud. This PSI Survase has been examined as P.W. 24 on behalf of the prosecution who has investigated the matter. The police jeep after arrival at the scene of offence took the deceased to CRP Hospital in Kolhapur. At about 11 or 11.30 a.m., the deceased breathed his last. Thereafter the statement of the complainant was recorded by the Investigating Officer which is Exhibit 18 and that was being treated by the Police as FIR. Thereafter inquest panchanama was performed on the dead body. The body was sent for post-mortem examination which was performed by Dr. Godbole (P.W. 10) at about 2 p.m. on that very day. The investigating officer proceeded to the scene of offence where the spot panchanama (Ex. 32) was prepared in the presence of the panchas. On the same day accused Nos. 1, 2, 6 and 7 were arrested from the house of accused No. 1 and were taken into custody under arrest Panchanama (Ex. 52). The PSI also recorded the statement of various witnesses including P.W. 3 Martand, brother of the deceased and Ramesh Dabhole (P.W. 2).
On the following day the accused Nos. 3 and 5 were arrested from ST bus stand at Kagal on the information received by him that they were sitting at ST stand. The accused Nos. 3 and 5 were arrested under panchanama (Ex. 45) on 5th March, 1993 in the presence of the panchas. The statements of many other witnesses were recorded on that day. On 7th March, 1993 the clothes which were on the persons of all the accused were seized and attached under the panchamuna in the presence of the panchas and were sent to chemical analyser for analysis. Those clothes were having bond stains which were not ordinarily visible and the dimensions of those blood stains were ranging from 0.1 to 0.3 cms. in diameter. The clothes of the deceased were also seized and sent to CA. From the report of the chemical analyser it appears that the blood group of the deceased was 'A'. While in custody there were also recoveries made of the weapons viz., axes, swords and sticks at the instance of the accused which were blood stained and sent to the CA for report. The weapons were found to be stained with the blood group 'A'. The samples of blood of all the accused were taken by Dr. Pravin Naik (P.W. 12). According to the CA report the blood groups of accused Nos. 1 and 7 was of 'O' group while blood group of rest of the accused i.e. accused Nos. 2 and 6 was Group 'B'. This would show that blood of none of the accused was of 'A' group which was that of the deceased.
5. After the investigation was over the charge-sheet was filed and the case was committed to the Sessions Court and came to be numbered as special case and tried by the Special Judge in view of the charges framed under the provisions of the Atrocities Act. As the accused pleaded not guilty 24 witnesses were examined on behalf of the prosecution. P.Ws. 1 to 3, out of whom P.W. 1 and 3 are the brothers of the deceased have been examined as eye witnesses to the incident of assault. P.W. 4 is Vijubai who was travelling in the ST bus from where the deceased was made to get down by accused Nos. 2 and 5. Another passenger in the bus was P.W. 18 who is also the vendor of the land which he had sold to the family of the complainant. P.W. 5 is the driver of the ST bus from where the deceased was made to get down. P.W. Nos. 6 to 9 are the panchas. P.W. 10 is Dr. Godbole who performed postmortem on the dead body, P.W. 11 is the Tahsildar who issued the case-certificate in favour of the complainant and the deceased. P.W. 12 is the doctor who took the blood samples of the accused for the purpose of analysis. The prosecution witness Nos. 13 to 17 are again panchas. P.W. 18 is the vendor of the land and was passenger of the ST bus at. the relevant time. P.W. 19 drew the map of the place of offence. P.W. 20 is the Head Constable who made entry in the police station diary which was treated as an FIR by the trial Court, P.W. 21 is the Head Constable who drew the inquest panchanama. P.W. 22 and 23 are again police witnesses and P.W. 24 is the Investigating Officer Surwase who was PSI then attached to Kagal Police Station. The defence of the accused was of total denial. According to them they were falsely implicated in the case because of the previous enmity.
6. The trial Court after considering the entire evidence on records, as stated earlier, acquitted original accused Nos. 1, 4, 6 and 7 against whom the Stale has come in appeal against acquittal. Thus accused Nos. 2, 3 and 5 were convicted for the offences of murder under Section 302 read with Section 34 of IPC and under Section 341 of IPC read with Section 34 who have filed the two appeals against the order of convictions recorded against them.
7. The trial Court has believed the testimony of three eye witnesses i.e. P.Ws. 1, 2 and 3, two out. of whom are the brothers of the deceased who deposed to have seen the assault on the deceased from some distance when they had gone to the pan bidi shop in the morning. The trial Court has believed the testimony of P.W. 4 Vijubai who was a passenger in the bus when she deposed that it was accused Nos. 2 and 5 who entered into the bus and forced the deceased to get down from ST bus. The trial Court also believed the testimony of P.W. 5, the driver of bus who deposed that the bus was stopped near the place of offence on the request made by accused Nos. 2 and 3 by gesture to stop the bus. The testimony of P.W. 18 has also been believed who was a passenger in the ST bus who along with the deceased was made to get down from the ST bus. According to the trial Court the statement recorded subsequently by the PSI in the Hospital being Exhibit 18 of the complainant P.W. 1 was not. FIR in as much as the entry made in the station diary was not merely a cryptic message but had mentioned about, the assault being made on the deceased by the seven accused whose names were given and also stated the weapons which were used by these accused for assaulting the deceased. Trial Court held that the charges framed under Sections 147, 148, 149 for unlawful assembly were not proved and so the accused were acquitted of those charges. Although the evidence of three eye witnesses was believed by the trial Court, still trial Court did not consider safe to convict all the accused as members of the unlawful assembly on the basis of the testimony of P.Ws. 1, 2 and 3 who immediately left the spot in order to call the police as no particulars of assault by various accused were given in the station chary. The trial Court also did not consider safe to believe some recoveries of the weapons at the instance of some accused as the panchas had turned hostile. Some weapons were found stained with blood group 'A' which is that of the deceased. Though the blood stains of Group 'A' were found on the clothes which were seized and attached from the persons of the accused, the said circumstance was not relied upon by the trial Court because the pancha had turned hostile and in the panchanama there was no mention about the stains of blood on the clothes of the accused though the clothes were found stained with blood group 'A' which is that of the deceased as per the CA report. The only recovery evidence which was relied on by the trial Court was about the recovery of the sticks at the instance of accused No. 2 which were hidden in the fodder stack. They are the Article Nos. 9 and 10. Moreover accused No. 2 was stated to have wielded stick which was recovered at his instance and found to be blood stained of group 'A' which is that of the deceased. This was proved by pancha witness Rajaram Solse and the memorandum parichanama (Ex. 49) and recovery panchanama (Ex. 50).
8. The trial Court, therefore, proceeded to acquit those accused against whom the circumstantial evidence in the form of seizure of blood stained clothes from their persons and the recovery of blood stained weapons at their instance were not. proved by the prosecution beyond reasonable doubt as the panehas had turned hostile. That is how the four of the accused came to be acquitted. The accused Nos. 2. 3 and 5 were convicted by the trial Court as there was circumstantial evidence in the form of either recovery of blood stained weapons like Articles 9 and 10 i.e. sticks at the instance of accused No. 2 or there was oilier corroborating evidence against accused Nos. 3 and 5.
9. Mr. Mirza the learned APP challenged the acquittal order recorded against the accused Nos. 1, 4. 6 and 7 and contended that the seven persons who were named in the FIR which was filed within 45 minutes of the time of occurrence of the incident, was sufficient to base the convictions against all the accused as they were undoubtedly the members of the unlawful assembly. He pointed out that in the station diary entry which was made at 8.40 a.m. at a place which takes about half an hour for reaching from the place of incident by vehicle had mentioned not only the names of the accused but also the weapons used by them and if the injuries numbering 1 5 on the body of the deceased are taken into consideration it is sufficiently corroborated by the immediate information which was lodged by the complainant who is none other than the brother of the deceased and whose evidence was supported by his another brother Martand (P.W. 3) and the villager Dabhole (P.W. 2). The complainant at the time of his evidence had attributed axe to accused No. 1, stick to accused Nos. 2 and 3 and had deposed that accused No. 1 was carrying axe. accused No. 2 stick. accused No. 3 sword, accused No. 4 axe, accused No. 5 sword accused No. 6 stick, and accused No. 7 axe and as per the post-mortem report and the deposition of Dr. Godbole (P.W. 10) the injuries which number 15 on the body of the deceased could be caused by the weapons like axes, sticks and swords which were used by the accused and, therefore, none of the accused who had been named in the FIR which was filed immediately should have been acquitted. It was submitted that even in the absence of the circumstantial evidence like the seizure of blood stained clothes from the person of the accused and the recovery of the blood stained weapons discovered at the instance of the accused which was not believed, all the accused ought to have been convicted,
10. The submissions made on behalf of the prosecution are not without force and at the first thought we were quite impressed by the said submissions made on behalf of the prosecution. We are aware that we are dealing with an appeal against the order of acquittal and, therefore, we have to consider the reasons given by the trial Court recording the finding of acquittal against those four accused. We are also aware that the accused appear to be quite influential persons who could turn most of the panchas for seizure of clothes and recovery of weapons, hostile. The trial Court has given the reasons for not basing the conviction of these four accused only on the basis of the testimony of the eye witnesses i.e. Nos. 1, 2 and 3, corroborated by the immediate in which their names appear. Those reasons do not appear to us to be perverse and we are aware that in an appeal against acquittal the High Court should be slow in reversing the finding of acquittal and recording the order of conviction unless the reasons given by the trial Court are perverse. We are further aware that in an appeal against acquittal if the view taken by the trial Court is a possible view, we are sitting in appeal ought not to disturb that view and substitute our own view. We feel that since there was enmity between the two groups and the quarrels were taking place oft and on which had also induced the rival parties to file complaints against each other and chapter proceedings were initiated against these groups, which would constitute a motive for committing the offence in question, which may also encourage tendency to falsely implicate other persons, along with the real culprits. We cannot discount the tendency in such matters to rope in all or more of the relatives of the family which is on inimical terms with the relations of the deceased. The eye witnesses and the deceased are the brothers. The conduct of P.W. 2 in accompanying the complainant initially to the police station and hospital and thereafter going away for his own work does not. inspire confidence and in that view of the matter in the absence of the independent witnesses, the trial Court felt necessary to seek corroboration before accepting the testimony of the eye witnesses and the immediate complaint which does not give details except mentioning the names of the accused and the weapons used by them and without attributing specific roles to the accused. For instance accused No. 1 is an elderly person who is the father of accused Nos. 2 and 3 and is stated to have wielded an axe not mentioned in the station diary entry which has come to be treated as FIR. In that view of the matter we feel that the trial Court was not wrong or the view taken by trial Court to seek corroboration to the testimony of the eye witnesses was not unreasonable or perverse and in the absence of corroborating circumstances we cannot find fault with the order of acquittal recorded by the trial Court as against accused Nos. 1, 4, 6 and 7. We are. therefore, of the view that there is no warrant to interfere with the order of acquittal and hence appeal against acquittal preferred by the Stale being Criminal Appeal No. 7 of 1995 is liable to be dismissed.
11. As regards the order of conviction recorded against the Accused Nos. 2, 3 and 5 is concerned, apart from the testimony of complainant (P.W. 1) supported by his brother Martand (P.W. 3) and to some extent by P.W. 2 has corroborated by other evidence on record. For instance as regards accused No. 2 there is evidence of P.W. 5 Shinde, the driver of the ST bus who deposed that he was ST driver in the said bus and when the bus came near the society's office i.e. near the place of offence, accused No. 2 Deepak and accused No. 3 Kakaso. who were known to him. raised their hands to stop the bus and when the bus was stopped these two accused went towards the rear side of the bus thereafter he did not notice anything. He has not said anything which was not seen by him. He has faithfully staled only that which he had himself witnessed. According to him the ST bus was full with passengers and it was, therefore, quite natural, as he was sitting right in the front of the bus. which has got door on the rear side, that he could not notice as to what happened after the ST bus was stopped by him on the request of accused Nos. 2 and 3. There was absolutely no reason to discard his evidence.
12. The next witness is P.W. 4 Vijubai who was a passenger in the said ST bus and her being a passenger in the said ST bus has not been successfully challenged on behalf of the accused. According to her when the ST bus was stopped, accused Nos. 2 and 5 entered into the ST bus and asked the deceased and P.W. 18, the vendor of the land in dispute, to get down from the ST bus in order to settle the matter pertaining to the pipeline. She has not given any exaggerated version in her deposition. She has deposed what she had seen, she had no animus against any of the accused nor she says anything as to what happened after the deceased got down from the bus at the behest of accused Nos. 2 and 5. She stated that the deceased was sitting on the seat just in front of her seat in that bus. It was. therefore, quite natural for her to witness what was happening to the deceased. She could hear the accused when they insisted on the deceased to get down from the bus. She could also see the deceased sitting in front of her seat and also getting down from the bus at the behest of these accused. Her evidence is absolutely natural and is not shaken in the cross-examination. She also deposed about the accused asking the deceased to get down from the bus in order to settle that matter about the pipeline which seems to be the basis for dispute between the family of the deceased and the accused persons. It was within short time after the deceased was made to get down from the ST bus that he assaulted with deadly weapons. Although the deceased was alive for few hours more and died in the hospital in Kolhapur in the forenoon between 11 to 11.30 a.m. due to the injuries which he has suffered, he was not in a position to speak and there is no attempt made on behalf of the prosecution to concoct the story of dying declaration although the brother and the police officers had come to the scene of offence immediately and taken the deceased to the hospital. Thus immediately before the incident in which the deceased was severely assaulted resulting in 15 injuries on various parts of the body of the deceased, he was not only seen in the company of the accused Nos. 2. 3 and 5 but it was at the instance of accused Nos. 2 and 3 that the ST bus was stopped and it was accused Nos. 2 and 5 who made the deceased get down from the ST bus when his journey had just commenced on his way to Kagal. The medical evidence also supports the prosecution case that the deceased was assaulted with weapons like stick, axe and sword.
13. This evidence regarding the deceased being made to get down from the ST bus has been to certain extent corroborated by the testimony of P.W. 18 Baburao Parvate Patil who had sold his land being Gat No. 149 about eight years ago to the deceased and his brother P.W. 1. the complainant. He too was in the said ST bus which is also deposed to by P.W. 4 Vijubai. On that day he was going to Belgaum from Sulkud. He was sitting near the deceased and when the ST bus stopped and the door was opened accused Nos. 2 and 5 entered inside the bus and entreated the deceased to get down and ultimately he was made to get down. This witness also got clown from that bus and thereafter went to Kognoli and alter some days heard about the death of the deceased and thereafter his statement was recorded. As he was not aware of the crime he did not come forward to give statement to the police. The evidence: of P.W. 4 Vijubai and P.W. 18 supports each other. The deceased was seen in the company of the accused Nos. 2, 3 and 5 immediately before the incident and not only that it was at the instance of the accused Nos. 2 and 3 the bus was halted, and it was ace used Nos. 2 and 5 who made the deceased get down from the ST bus and in short time I hereafter he received fatal injuries at the hands of the accused which were witnessed by the brothers of the deceased complainant P.W.1 and P.W. 3 and more witness P.W. 2.
14. In addition to this there is corroboration from the circumstantial evidence of recovery of blood stained sticks at the instance of accused No. 2 from fodder stack. This proved through the pancha witness Manohar Patil (P.W. 16) who did not turn hostile. This recovery was made on (6th March. 1993 under the memorandum panchanama (Ex.49) and recovery panchanama (Ex. 50) which have been sufficiently proved by the pancha witness. The sticks which were recovered at the instance of accused No. 2 are Articles 9 and 10 which per the CA report were stained with blood Group 'A' which is that of the deceased. This is the. vital circumstance which connects the accused No. 2 with the offence in question.
15. There was recovery of other weapons at the instance of other accused also but. as stated earlier, the trial Court has not placed reliance on them as panchas and turned hostile. There were blood stained clothes of the accused which were also stained with the blood group of the deceased. Yet the same were not relied on by the trial Court as the pancha for the recovery of the clothes of the accused i.e. P.W. 15 Shankar Ghatage did not support the prosecution case and has turned hostile. However the said panchanama was proved by PSI Surwase (P.W. 24) but the panchanama does not mention about the blood stains on those clothes and IO in this deposition has admitted that the blood stains were not clearly visible on the clothes which were on the persons of the accused and probably for the said reason he did not seize those clothes on the very day of their arrest and when they seized he did not mention about it in the panchanama. This would show that IO has not shown any bias against the accused. If he had acted prejudicially to the interest of the accused, he would have mentioned in the panehanama that the clothes of the accused were blood stained. It appears that he was not sure, and therefore he did not attach the clothes on the day of their arrest and subsequently when they were attached, he did not mention that they were blood stained and it was only when the clothes were sent to the CA. the CA found that the clothes were stained with blood of group 'A' which is that of the deceased.
16. In our view, the evidence of the eye witnesses, viz.. the complainant P.W. 1 and P.W.3 are the brothers of the deceased and the evidence of P.W. 2 supported by the evidence of P.W. 4 Vijubai and P.W. 5. Driver of the ST bus, who are absolutely independent witnesses and to certain extent by P.W. 18 who was also a passenger in the said bus and sitting by the side of the deceased with corroboration from the recovery of the blood stained sticks at the instance of the accused No. 2 stained blood of group 'A' which is that of the deceased and further corroborated by the medical evidence, leaves no manner of doubt as to the involvement of the accused Nos. 2, 3 and 5 in the commission of murder of the deceased. It was unfortunate that though there was some more recovery evidence of the weapons at the instance of the other accused which were stained with blood group 'A' so also the clothes of the accused which again were stained with blood group 'A' which is that of the deceased, could not be relied on against the accused for the infirmities which were pointed out by the trial Court. So far as the clothes are concerned the IO himself said that the blood stains were not visible though he proved the panchanama and the only pancha, being P.W. 15, had turned hostile so also other panchas to the recovery of blood stained weapons had turned hostile and therefore, the said evidence could not be relied on.
17. On behalf of the defence it was contended by all the counsel that P.W. Nos. 1, 2 and 3 were not eye witnesses and their testimony should not be relied. It was argued that apart from the fact that P.Ws. 1 and 2 are the brothers, they had no reason to go at pan shop by coincidence in the morning hours. According to the defence counsel the station diary entry cannot be treated as FIR because the same was not recorded as per Section 154 of Criminal Procedure Code and in all probability the same was recorded subsequently after the death of the deceased and not at 8.40 a.m. as it purports to have been. It was argued that the timing in station diary was over written.
18. We have gone through the original entry No. 13 in exhibit 59 and we find no interpolation. In fact the said entry at 8.80 a.m. is preceded by entry at serial No. 12 which was made at 8.00 a.m. The entry No. 13, of the station diary mentions about the assault being made on the deceased by seven accused persons who were named therein with the help of weapons viz. axes, sticks and swords and, therefore, request was made to send to police force immediately. It further mentions that another head constable was sent to inform the PSI at his residence. This is followed by entry No. 14 entered at 8.50 a.m. wherein it has been stated that the police head constable Angathekar on telephone informed that he had intimated about the incident to PSI who is the IO in this case i.e. P.W. 24 and he along with other police staff and the complainant had proceeded in police jeep to the place of offence in village Sulkud. We find that the said entry was genuine and there is no scope for any doubt about the genuineness of the said entry.
19. It is further argued that the entries are in the same handwriting and the Police Head Constable could not have continued on duty for more than 24 hours. The said entry has been proved by P.W. 20 Balasaheb Koli, the Head Constable who made those entries and there is nothing in the cross-examination of that witness which demolishes his testimony or creates doubt about the genuineness of the said entry. Thus unless the complainant P.W. 1 who is the brother of the deceased had witnessed the incident himself, he would not have been able to give the names of the accused and the weapons to the police head constable at the police station Kagal at 8.40 a.m. which takes about half an hour by jeep to reach. The incident had taken place- little before 8 o'clock in the morning and the entry in the Police Station diary is made at 8.40 a.m. immediately after the said intimation the PSI had proceeded to the place of offence and to the deceased to the hospital at Kolhapur where ultimately he died around 11 to 11.30 in the forenoon.
20. It is next contended that Exhibit 18. which is the statement of the complainant and which was treated as FIR by the police, is not consistent with the earlier entry. It is argued that in the station diary what is stated is that the deceased is being beaten or assaulted by the accused and in Exhibit 18, which is the statement of the complainant recorded after the death of the deceased in the hospital, it is mentioned that he had seen that the deceased was lying and the accused thereafter ran away. It is, therefore, contended that the P.W. 1 was not. the eye witness but he must have been informed by somebody else and accordingly he has informed the police who made the station diary entry. The alternative argument is also advanced on behalf of the defence that the station diary entry must have been entered into after the recording of the Exhibit 18 treated as FIR by the police but not by the trial Court. We are not impressed by either of these alternative and inconsistent pleas advanced on behalf of the defence. Nothing has been pointed out from the record which would show the bias shown by the investigating machinery in favour of the deceased or against any of the accused persons. In fact what we find from the record is that most of the pancha witnesses have been persuaded to deviate from their earlier version and turn hostile because of which the circumstantial evidence in the form of the recovery of the blood stained weapons and seizure of blood stained clothes of the accused could not be relied to corroborate the prosecution case. As the said evidence was discarded, some of the accused had to be acquitted for want of sufficient corroboration.
21. It was next argued, relying on the inquest panchanama, that the inquest panchunama (Ex. 32) mentions about the enquiry being held about the cause of death under Section 174 of Cr. P.C. It was argued that Section 174 of Cr. P.C. is applicable before the FIR is lodged or in ease the cause of death is not known. In our view, a bare reading of the said provision would show that the provisions of Section 174 are applicable in all cases, whether it is accidental death or homicidal death or when the person dies under any suspicious circumstances. The provisions of Section 174 are applicable in all contingencies and its object seems to be to find out the condition of the dead body before it is sent for the post-mortem examination. In the post-mortem examination the medical officer is concerned with regard to the injuries that appear on the body and they are not concerned with other condition of the body. Some marks which could be seen before the post-mortem examination is performed may disappear after the body has undergone post-mortem examination and, therefore, independent panchas have to draw up an inquest report about the condition of the dead body and the apparent cause of death describing the wounds, fractures, bruises and other marks of injury which may be found on the body. The judgment of the Supreme Court in the case of Podd Narayana v. State of A.P. is very clear as regards the scope of Section 174 of the Cr. P.C. According to the said judgment the inquest panchanama can be made either before or after lodging of the FIR in order to find out the cause of death not from the medical point of view but which may appear to the layman.
22. Next it was argued on behalf of the defence that the FIR ought to be lodged with the Magistrate immediately or as soon as it is possible alter it is recorded. In this ease the FIR was recorded on the date of the incident immediately after the incident i.e. 4th March and as per the investigating officer although it was sent on the same clay, the acknowledgment from the Court of Magistrate shows that it was received there on 6th March. On behalf of the defence reliance was placed on the decision of the Supreme Court reported in Arjim Marik v. State of Bihar 1994 supp. (2) SCC 372 : 1994 SCC (Cri.) 1551 in this connection.
23. What is held in the said decision is not that the FIR cannot be accepted once it is not forwarded to the Magistrate immediately after it was recorded but the importance of forwarding the said FIR to the Magistrate has been shown and if there is a delay the same should IK explained by the prosecution. Merely because the FIR appears to have been received by the Court of Magistrate two days after it was lodged though the PSI says that it was sent on the same day, it cannot be fatal to the prosecution case. The evidence of the complainant is sufficiently corroborated by the immediate station diary entry which was recorded on the information given by the complainant who is brother and unless he had witnessed the incident it would not have been possible for him to name the accused and also the weapons used by them,
24. It was next contended on behalf of the defence that the evidence of P.Ws. 4, 5 and 18 should not be accepted as none of these witnesses speak about the weapons that were carried by any of the accused. It is argued that it. is a mystery from where the weapons were taken by the accused. The place of incident is near the road between Sulkud and Kagal. Neither P.W. 4 Vijubai nor P.W. 18, who were passengers in the bus, speak about the weapons in the hands of accused Nos. 2 and 5 who had entered into the bus. In our opinion, these witnesses have given their evidence faithfully and stated only that which had been witnessed by them. It is less likely that the accused who had come prepared to kill the deceased would dare to carry the weapons in their hands when they entered into the ST bus and make it obvious not only to the deceased but also to the other passengers of their intention to kill the deceased. II is contended that even the driver has not spoken about the weapons carried by any of the accused Nos. 2 and 3 or any other person, when the bus was signalled for halt. In our view, the accused were not expected to carry the weapons openly when the weapons used against the deceased were like axes, swords and sticks which would make their intention obvious and clear to any person who sees them. In that ease the attention of many other passengers would have been drawn towards them which could have aborted their plan to kill the deceased. The accused must have kept the weapons on the ground on the side of the road, and if the weapons were kept on the ground, they could not be visible to the driver or any other passengers unless they had looked for them specifically. There was no reason for any of the passengers of the ST bus or the driver or P.W. 4 to suspect that the accused had halted the bus and made the deceased get down from the bus with a view to kill him. The ST bus had halted for a very short time when it had just commenced its journey. As per the evidence of the driver there were number of passengers in the ST bus and, therefore, no one was expected to concentrate on the purpose and object of the accused making the deceased get down from the bus. As per the deposition of P.W. 4 deceased was asked to get down with a view to settle the matter about the pipeline and, therefore, no one could have suspected about the intention of the accused Nos. 2 and 5 the accused arc not expected to create the suspicion in the minds of the passengers of the bus by openly carrying the deadly weapons like axes, swords and bamboo sticks in their hands.
25. It was next contended on behalf of the accused that there was no independent witness examined on behalf of the prosecution. The place of offence is a busy locality with shops and residential premises and, therefore, many persons must have assembled at the time of the incident. From the evidence of IO it appears that he had examined a number of witnesses from the said locality. He had recorded the statements of 12 witnesses on the first day and 12 on the following day. It is common knowledge that in such cases even if any member of the public or the persons who reside in the vicinity of the place of incident had seen any part of the incident, they would not dare to come forward and name any of the accused for the reasons of their own safety and the risk involved. It cannot be forgotten that the timing was not late in the day but the morning hours between 7.30 to 8.00 a.m. It is small village and it cannot be a busy locality and it is natural that some of the residents of the said locality might have witnessed the incident but they cannot be forced to some forward as witness. The police had not spared any endeavors in that direction when IO says he had recorded the statements of 12 persons on the first day and other 12 on the following day. If the people for their own reasons, which are obvious, do not. choose to come forward as eye witnesses, the prosecuting agency cannot be blamed. The independent witnesses like P.W. 4 and P.W. 5 have deposed only that which they had witnessed without any exaggeration. As observed earlier the trial Court wanted to be very safe by not convicting all the accused on the basis of the testimony of P.W. 1 supported by the immediate station diary entry naming all the accused and sought further corroboration and has convicted only those accused against whom the corroboration was available. In fact, as stated earlier, it is because many of the pancha witnesses had become hostile, the circumstantial evidence, which otherwise would have corroborated the involvement of the acquitted accused, were spared.
26. It was further argued on behalf of the defence that P.W. 9 Shivaji Leghare docs not corroborate P.W. 1. as in his deposition he is silent about the P.W. 1 telling him about the incident. It was in his jeep that P.W. 1 had gone to the Police Station in the company of Leghare, Leghare has not been examined by the prosecution in order to corroborate P.W. 1 but has been examined only as a pancha witness to the inquest panchanama and, therefore, it was not necessary for him to state in his examination-in-chief as to what was told to him by P.W. 1. It was open for the defence to break his silence on this question and ask him whether P.W. 1 had said anything to him in their journey in jeep from their village to Kagal Police Station.
27. The defence Counsel had pointed out certain improvement in the testimony of complainant P.W. 1. Firstly it was pointed out that in his statement P.W. 1 had not stated about the use of the word Mangdya. This improvement was material in respect of the charge which was levelled against the accused under the provisions of the Atrocities Act and because of this omission none of the accused had been convicted under the said provisions. Certain other improvements have been shown in the sense that the witness had deposed in the Court which was not stated before the police. Those improvements arc that there was omission on the part of the P.W. 1 to mention in his statement that he had gone to house of Shivaji Leghare to get his jeep and asked his brother Martand to go to his own house. Secondly, there was omission about the threat which was allegedly held out by the accused to the witnesses when they wanted to proceed towards the place of incident during the course of assault on the deceased. Thirdly there was omission to mention in the FIR or statement (Ex. 18) that he had gone to Kagal Police Station along with Ramesh Dabhole in the jeep of Leghare. In our view none of these omissions or improvements are material. Only those omissions amount to contradictions which are material. It is not necessary for every witness to give all the details as to what he did and what he said and whom he met in his police statement. It is only the mam particulars about the incident which ought to appear in the previous statement so as to make the deposition of the witness credible. None of the omissions which are not on vital point would amount to contradiction so as to discredit the testimony of a witness. The testimony of this complainant has been, as pointed out earlier, sufficiently corroborated by the other independent witnesses and the circumstantial evidence of recovery of blood stained sticks at the instance of accused No. 2,
28. It is next contended on behalf of the defence that certain glaring features are missing in the FIR i.e. in Ex. 59 station diary entry as there is no mention about ST bus, We cannot be oblivious to the fad that both the complainant, who was the brother of the deceased, and the police were in a hurry to reach the spot where the brother of the complainant was being assaulted. Already about an hour had passed and it was not possible for the police officer to enter each and every detail in the station dairy when the police officer himself had not considered to be an FIR. In fact at that time cryptic entry could have been made but the police head constable has mentioned the main features about the incident as narrated to him by the complainant i.e. the names of the accused and the weapons used by them and the further step which was taken by him by sending and intimation about the incident to the PSI through another head constable. What was important was the assault which was being made and the complainant had gone to take the police along with him to the place of incident and therefore, it was not necessary to mention the particulars of the place of incident or state that the deceased was made to get down from the ST bus. There was neither time nor the occasion to do so when the station diary entry was not meant to be an FIR.
29. On behalf of the accused it was also argued that there is a mention in the inquest panchanama that the complainant had identified the body of the deceased so also he had identified the body when the same was sent for post-mortem to the Doctor (P.W. 10) and at the same time PSI says that the spot panchanama which was prepared around more or less the same time at the place of offence was done in the presence of the complainant. First of all it is not necessary that the complainant ought to be present at the time of the inquest panchanama. One of the panchas was P.W. 9. Leghare who had accompanied the complainant in his own jeep to the police station. Everyone in the hospital knew that the body was identified by the complainant who was his brother and, therefore, everywhere it was mentioned that dead body was identified by the complainant. Secondly the place of offence was already seen by the police officers when they had gone there to bring the deceased in injured condition to the hospital and therefore, it was not necessary for the complainant to accompany them to the place of offence for drawing the spot panchanama. These aspects, therefore, would not falsify the testimony as regards the main incident which has been given by the complainant and which is as stated hereinabove, sufficiently corroborated by the other supporting evidence and circumstantial evidence.
30. On behalf of the accused it was also argued that the evidence of P.W. 3 Martand should not be believed because his conduct in going home from the place of incident and remaining there until evening is not probable. It is further pointed out that P.W. 9 states in his deposition that all the brothers of the deceased were in the hospital and P.W. 1 himself" states that Martand had come to the hospital and P.W. 1 had deposed that immediately after the incident when he proceeded to go to the police station to call the police he had asked his brother P.W. 3, Martand to go home where only lady members were present whether he had later on come to the hospital or not would not shatter the prosecution ease. The evidence was led about one year after the incident and, therefore, there can be mistake either on the part of P.W. I or P.W. 3 in narrating every step they had taken or observed one year before. Moreover, these brothers and deceased belong to the backward Mang community. P.W. 1 may not remember whether P.W. 3 had come to the hospital. The other witnesses had not named Martand as one of the brothers who was present in the hospital. In that view of the matter we have no manner of doubt about the involvement of these accused Nos. 2, 3 and 5 in the murder of the deceased. The trial Court has, in our view, rightly convicted and sentenced them under the provisions of Section 302 IPC and Section 341 IPC.
31. In the result we dismiss the Criminal Appeal No. 7 of 1995 filed by the Stale. The bail bonds of Respondents original Accused Nos. 1, 4, 6 and 7 shall stand cancelled. We also dismiss the Criminal Appeal No, 403 of 1994 filed by the Accused Nos. 2 and 3 and Criminal Appeal No. 346 of 1994 filed by Accused No. 5.