Bombay High Court
The State Of Maharashtra vs Prakash Dhawal Khairnar (Patil) & Anr. on 7 December, 2000
Bench: Vishnu Sahai, T.K. Chandrasekhara Das
JUDGMENT Vishnu Sahal, J.
1. Since both these matters arise out of the same set of facts and a common impugned Judgment, we are disposing them off by one Judgment.
2. Two persons namely Prakash Dhawal Khairnar (Patil) and his son Sandip @ Babloo Khairnar (Patil) were charged by the Additional Sessions Judge. Malegaon, District Nasik, in Sessions Case No. 24 of 1997, for offences punishable under sections 302 r/w 34 of the I. P. C., 397 r/w 34 of the I. P. C., 120B. of the I. P. C., 201 r/w 34 of the I. P. C.. section 3 r/w 25 of the Arms Act and section 27 of the Arms Act. Pursuant to the orders passed by D. K. Trivedi, J. on 31.7.1999 in Criminal Application No. 1533 of 1999, preferred at the instance of the State of Maharashtra, on considerations of convenience and no objection by the counsel of the said accused persons, the said case was transferred to the Court of the Sessions Judge, Nasik, with a direction that either he may dispose off the same or assign it for disposal to any other Additional District Judge at Nasik. Consequently, the case was transferred to the Court of Mr. B. B. Satrale, Additional Sessions Judge, Nasik (at Nasik) and was numbered in the said Court as Sessions Case No. 152 of 1999. The said Judge tried the same and vide order dated 19.5.2000 convicted and sentenced the accused persons - Prakash Dhawal Khairnar (Patil) and Sandeep @ Babloo Prakash Khairnar (Patil) in the manner stated hereinafter :-
(i) Under section 302 r/w 120-B of the I. P.C. to death ;
(ii) Under section 397 r/w 34 of the I. P.C to two years R. I. and to pay a fine of Rs. 1000/- in default to undergo six months R. I.
(iii) Under section 25(1)(b)(a) of the Arms Act r/w 120B of the I. P. C. to three years R. I. and to pay a fine of Rs. 1000/- in default to undergo six months R.I, ; and
(iv) Under section 201 of the I. P. C. to undergo seven years R. I. and to pay a fine of Rs. 1000/- in default to undergo six months R. I. The execution of the death sentence awarded under section 302 r/w 120B of the I. P. C. was made subject to confirmation by this Court.
Confirmation Case No. 3 of 2000 arises out of a reference made by the learned Judge for confirmation of the said sentence.
Criminal Appeal No. 400 of 2000 has been preferred by the accused Prakash Dhawal Khairnar (Patil) and Sandip alias Babloo Prakash Khairnar (Patil) (hereinafter referred to as the appellants) against their aforesaid convictions and sentences.
3. Shortly stated the prosecution case runs as under :-
The appellant - Prakash Dhawal Khairnar (Patil is the father of the appellant - Sandip alias Babloo Prakash Khairnar (Patil). At the time of the incident, Prakash Patil used to stay at Nasik and Sandip Patil, who was then aged 17 years, used to stay in a hostel at M. I. T., Pune, where he was studying in First Year Engineering.
The six deceased persons namely Supadu Dhawal Patil, Pushpatai. Kesarbai, Poonam, Buntitai and Rakesh @ Pappu were their very close relations. Supadu Patil was the real brother of the appellant - Prakash Patil, Supadu Patil's wife Pushpatai was the sister-in-law of Prakash Patil, Kesarbai mother of Supadu Patil was also the mother of Prakash Patil. Poonam and Buntital were the daughters of Supadu Patil, Rakesh @ Pappu was the son of Supadu Patil. Hence appellant Prakash Patil was their uncle.
At the time of the incident, Supadu Patil was residing in his bungalow along with other five deceased persons, in Soyagaon, Malegaon, District Nasik. His daughter Buntitai was living in a hostel at Dhule and used to come to Malegaon on holidays. Supadu Patil had two sisters and one of them Vijyatya was residing separately from him in Soyagaon.
There was enmity between Supadu Patil and Prakash Patil. Prakash Patil used to tell Supadu Patil that the land should be partitioned and the land of his share should be given in his possession. Supadu Patil was evading the partition and used to tell Prakash Patil that he will think about it later. Hence, there used to be quarrel and exchange of rbuses between them.
Excepting the place where the appellants were residing at the time of the incident and the age of the appellant - Sandip, other facts enumerated above have been deposed to by Supadu Patil's-servant Vyankat Pagare P. W. 33, who as per his evidence used to reside in a shed at a distance of about 50 feet from the bungalow of Supadu Patil.
The evidence of Vyankat Pagare P. W. 33 further shows as under :-
Once in summer while he (Vyankat Pagare) was watering the plants, there was a quarrel and exchange of abuses between Prakash Patil and Supadu Patil and the former threatened the latter that he would kill him.
On 23.10.1996, (Wednesday) sometimes in the evening when he (Vyankat Pagare) was going to get milk, he saw the appellant-Sandip holding a suit. - case in his hand and a shabnam bag on his shoulder entering into the bungalow of Supadu Patil. Next day (Thursday) in the afternoon and night at about 9 p.m. he saw Sandip in the house of Supadu Patil. At that time, Supadu Patil, his wife Pushpatai, his mother Kesarbai, his daughters Poonam and Buntitai and his son Rakesh @ Pappu were also there. He took his food and a khat (cot) and thereafter went to sleep at his shed.
At about 2.30 to 3 a.m. on 25.10.1996, he heard the sound of two shots corning from the direction of Supadu Patil's bungalow. He also heard Buntitai crying 'aeyga' and thereafter, Kesarbai saying 'shant ho'. Thereafter, he heard the sound of two more fires, Since Supadu Patil used to kill pigs by his gun and presuming that he might be firing shots at pigs, he went off to sleep. At about 6 a.m. when he was folding his bedding, one Suresh who was living in the farm house of Supadu Patil and who went to Supadu Patil's bungalow to bring a bucket for milking the she-buffaloes found the door of the bungalow to be locked and a chit attached to the lock on which was written "We are all going outstation. The reason was not to be assigned to us. We are returning on Sunday or Monday. All work should be stopped." Suresh handed over the said chit to him. By that time. Subhash who was working on an annual basis (Saldar) with Supadu Patil also came there. He [Vyankat Pagare) told Suresh and Subhash about what he had heard at night. He took the chit and asked Subhash to call Vijuatya, Subhash left; informed Vijuatya who came along with her husband Zumbhar Patil. He (Vyankat Pagare) handed over the chit to Zumbhar Patil. Zumbhar Patil asked Subhash to call Ashokanna P. W. 1. On receiving the information, Ashokanna and the driver of Supadu Patil came. Whatever he (Vyankat Pagare) had seen, he informed them. They found that the doors and windows of the bungalow were closed and the kitchen door was closed from inside. The kitchen door had a grill from outer side and the wooden door from inside. They pushed the wooden door inside. It opened. They found the keys of Supadu Patil's mobile van lying on the dining table. One Arun took out those keys by inserting a bamboo through the grill and thereafter went to Lokhadi, the house of the parents of Pushpatai. Thereafter, he, Ashokanna and others took around of the bungalow of Supadu Patil. They pushed the rear door of the window of the bedroom which opened. They saw that Supadu Patil and Pushpatai were lying in a pool of blood. At that juncture, he (Vyankat Pagare) started crying. Ashokanna asked them to wait and left for informing the police.
3A. The evidence of Ashokanna P. W. 1 shows that after seeing the corpse of Supadu Patil and his wife lying in a pool of blood inside the bungalow, he came to Soyagaon on a scooter and telephoned Chavani Police Station. He thereafter returned to Supadu Patil's bungalow. Within a short time police came there.
3B. The evidence of P.I. Ramesh More P. W. 42 shows that on 25.10.1996 at 9 a.m. while he was at home, he received a telephone message from P.S.I. Thakur that dead bodies were lying at Saptashringi Bungalow (bungalow of Supadu Patil was known by this name) near M. S. E. B. Station, Soyagaon and he had sent the staff at the spot. Consequently, he (P.I. More) immediately proceeded to the spot with his staff. A. P. I. Shaikh and Ashokanna P. W. 1 (also known as Ashok Murlidhar Bachav) were present and had broken the lock of the grill door on the northern side of the bungalow and were doing panchnama (Exhibit 36). Thereafter, P. I. More, A. P. I. Shaikh and Ashokanna entered the bungalow. They found that six corpses were lying inside the bungalow.
P. I. More recorded the F.I.R., of Ashokanna Exhibit 37 and sent the same for registration to Chavani Police Station.
After recording Ashok Bachav's F.I.R., P. I. More called the photographer who took photographs of the dead bodies. Thereafter, the inquest on the dead bodies was performed and they were sent for the post mortem examination. Thereafter, Ashok Bachav produced the chit which was affixed around the lock which he attached under a panchnama Exhibit 40.
Thereafter, P. I. More conducted the spot panchnama Exhibit 41, in the presence of public panch Prakash Chitalkar P. W. 2 and separately collected the blood from the place where each of the dead bodies were lying, with a cotton swab.
A perusal of the spot panchnama shows that he seized a reddish round shaped leather cartridge belt having 16 empty sockets, and 9 live 12 bore cartridges were seized. It also shows that there were some empties which were taken into possession and a 12 bore shot gun was also seized.
It is pertinent to mention that the said articles were sent to the Chemical Analyst. He then recorded the statement of Vyankat Pagare @ Pintya P.W. 33.
On 26.10.1996, while P. I. More was taking search of the bungalow of Supadu Patil, he found a black coloured pant belonging to Supadu Patil inside which was a chit addressed to Supadu Patil's daughter Poonam. He attached it under a panchnama Exhibit 48. The said chit was written by the appellant - Sandip Patil and bore his address as Room No. 120, Maharashtra Institute of Technical Boys' Hostel, Paud Road, Kothrud, Mahaganesh Colony, Pune - 29.
Consequently, he deputed P. S. I., Ugale to go to Pune and obtain the hand writing of the appellant - Sandip Patil.
On 27.10.1996, P. S. I. Ugale in the presence of public panch Shailendra Joshi P. W. 4, seized a chit which was taken out by the appellant - Sandip Patil from the wooden cupboard of his room (Room No. 120) at M. I. T. Hostel, Pune.
On the said chit was written : "To dear Poonam, I received the rakhi which was sent by you through Yogesh Wagh" The said seizure was made under panchnama Exhibit 61.
On 27.10.1996, P. I. More received the post mortem reports from Dr. Bharat Wagh P. W. 36.
4. The evidence of Dr. Bharat Wagh P. W. 36 shows that on 26.10.1996 he performed the autopsy on the dead bodies of Supadu Patil, Pushpalata (Pushpatai) Rakesh, Kesarbai, Poonam and Roopali.
On the person of Supadu Patil. Dr. Wagh found the ante mortem injuries enumerated hereinafter :-
"1. Lacerated wound over nape of neck on right side 9 cm. x 7 cm. and 6 cm. in depth. I also noticed ruptured carotid vessels artery and vein Muscles fracture segment of vertebral bone, blood collection is seen through the wound.
2. Blackening is found at the edges of wound, Blackening is the indication of afire arm wound. Blackening is found at the edges of wound. More prominent and distinct in supra clavlcal region.
3. Fracture of cervical vertebra C-5 to C-7, All these injuries are ante mortem injuries."
On internal examination, massive internal damage was found which included penetrating injuries on right lung due to pellets.
In the opinion of Dr. Wagh, the deceased died on account of rupture of carotid artery coupled with injury to spinal cord and right lung and the said injuries were attributable to a single fire.
On the person of Pushpalata (Pushpatai) the following injuries were found :-
" 1. Lacerated wound over chest on left lateral aspect of breast 6 cm. x 3 cm. with 1 /2 cm. in depth. Blackening is found at the edges of the wound which were inverted.
2. Lacerated wound with multiple pellet marks over chest on lower costal region anteriorly placed, surface area of 10 cm. x 8 cm.
3. Lacerated wound over left forearm just above wrist on antero - middle size. It was skin deep 6 cm. x 3 cm. in size. There were blackening at the edges.
4. There was contused blackening over wrist on postedro medial size 2 cm. x 2 cm.
5. Superficial injury over right parumbilicial region 1 cm. x 1 cm." These injuries in the opinion of Dr. Wagh were attributable to a single firm arm shot.
On internal examination, Dr. Wagh found massive internal damage, including rupture of left lung due to pellets.
On the person of Rakesh, the following ante-mortem injuries were found :-
"1. Perforating injury over the abdomen just below sternum at its lower end 5 cm. x 4 cm. in size and it was oval in shape. Loops of intestine were found coming outside of the wound.
2. Lacerated injury over right forearm and middle third anteriorly placed 6 cm. x 5 cm. in size was muscle deep with bone visible through the wound. Presence of blackening on the edges of injury is noticed."
In the opinion of Dr. Wagh, the said injuries were caused by a single shot.
On internal examination, massive internal damage, including fracture of 10th rib on the left side and damage to lower lobe of left lung as a result of pellets was found.
On the person of Kesarbai, the following ante-mortem injuries were found :-
" 1. Oval lacerated wound over chest, perforating type of injury 4 cm. x 3 cm. x 2 cm. above the left nipple blackening at the margin of the wound with inverted edges.
2. There were 4 wounds noticed over back, one is size of 2 cm. x 1/2 cm. transversely placed with inverted edges on left lower region on back.
Other injuries were of 1/2 cm. x 1/2 cm. with inverted edges. Injury No. 1 wound of entry whereas injury No, 2 wound of exit. There was fracture of ribs on left side 5th to 7th anteriorly and post laterally.
In the opinion of Dr. Wagh, the said injuries were caused by fire arm.
On internal examination, extensive internal damage, including collapse of left lung and laceration to pericardum on left side and laceration of heart on left ventricle valve was found.
On the person of Poonam, a solitary ante mortem injury which was a circular perforated wound over abdomen which is below the umbilicus slightly on left side of midline 3 cm. x 3 cm. with inverted edges with blackening over edges of wound.
In the opinion of Dr. Wagh it was a fire arm injury and blackening of the edges indicated that fire was made from a distance of about 1 yard.
On internal examination, the peritonium was found ruptured and there was a perforated injury over the large intestine on transverse colon due to the pellets. There were multiple pellets injuries on the left kidney.
On the person of Roopali Patil, the doctor found a perforated circular wound over back of mid-line at the level of lumber vertebra which resulted in the fracture of lumber vertebra.
In the opinion of Dr. Wagh, the said injury was due to firm arm.
On internal examination. Dr. Wagh found laceration of transverse colon and right kidney.
5. On 28.10.1996, in the presence of public panchas Nagesh More P. W. 3, and Prabhakar Sawale P. W. 17. P. I. More arrested the appellant- Prakash Patil. He removed his shirt and saw two black spots on the right shoulder, some scars on the left shoulder and some scratches on the neck. Thereafter, P. I. More asked the appellant - Prakash Patil to remove his shoes which were of Casio Company and found there was blood inside the left shoe and mud on the shoes. The said shoes were seized under a panchnama Exhibit 68.
Since there were injuries on the person of Prakash Patil, he was sent for medical examination.
6. Evidence of Dr. Bharat Wagh P. W. 36 shows that on 29.10.1996 at 6.25 p.m. he medically examined the appellant - Prakash Patil and found on his person the following injuries :-
1. Superficial abrasion with formation of scab with dark colouration over right superior surface of shoulder 1 1/2 inch medial to acromion prominence one inch in length and the direction was obliquely downward on right side.
In the opinion of Dr. Wagh, the said injury was attributable to a hard and blunt object and was simple in nature. According to Dr. Wagh, the duration of the said injury was more than two to three days.
7. The evidence of P. 1. More P. W. 42 shows that on 28.10.1996 he arrested the appellant - Sandip Patil under a panchnama Exhibit 48 in the presence of public panch Prabhakar Patil P. W. 6. Since there were injuries on Sandip Patil's person, he sent him for medical examination.
On the same day (28.10.1996) at 2.15 p.m. Sandip Patil was examined by Dr. Wagh P. W. 36 who found on his person the following injuries :
"1. Abrasion with formation of scab over face on right side just below lower eye lid 1/4th x 1/4th cm. and was transversely placed.
2. There was scratch mark with formation of scab over nose on left side just near to the angle of left eye 1/2 cm. in length with direction obliquely and directed downward.
3. Scratch mark over nose 1/2 cm. below injury No. 2 and l/4th cm. in length.
4. Scratch mark over left forearm on posterior hueral side on left wrist 1/4 cm. in length with formation of scab.
5. Abrasion with scab formation over right lower line 2 inch below knee over anterior surface 1 cm. x 1 cm.
6. Linear scratch mark with formation of scab over right supra clavical region over neck obliquely and vertically placed 1/2 cm. in length."
In the opinion of Dr. Wagh, the said injuries were attributable to a hard and blunt object and their duration was more than 24 hours.
In his substantive evidence. Dr. Wagh stated that if the nails are vertically used they cause linear injuries. If the whole surface i.e. the edge of the nail is used, it could cause an abrasion or a scratch mark. The injury report of Supadu Patil is Exhibit 228.
8. The evidence of P. I. More shows that when he arrested the appellant - Prakash Patil, he was putting on shoes containing blood. He seized his shoes under a panchnama (Exhibit 62).
9. The evidence of P. I. More P. W. 42 and S. D. P. O. Sudhakar Trarnbake P. W. 37 shows that on 29.10.1996 they interrogated the appellant - Sandip Patil. During the course of the interrogation, the appellant - Sandip Patil stated that he had thrown the bunch of keys on the road leading to Shankar Nagar and expressed his willingness to produce them. Consequently, they sent for two public panchas, one out of whom namely Prakash Chitalkar has been examined as P. W. 2.
In the presence of the public panchas, the appellant - Sandip Patil repeated his said willingness which was recorded in a panchnama and thereafter, fn the presence of the panchas, he took out a bunch of three keys from the water which had accumulated near the house of the deceased Supadu Patil. The said recovery was effected under a panchnama. P. I. More tried to find out whether the said keys pertained to the lock which was fixed on the door of Supadu Patil and it was discovered that one of the keys was of the lock in question.
10. The evidence of S. D. P. O. Sudhakar Trambake P. W. 37 shows that on the same day (29.10.1996) he interrogated the appellant - Sandip Patil. During the course of his interrogation, he agreed to produce the clothes which were on his person at the time of the commission of the crime and other articles which he had taken from the house of the victims. He stated that he had kept them at his room in M. I. T. Hostel at Pune.
Consequently, S. D. P. O. Trambake sent for two panchas, one out of whom Sanjay Salunkhe has been examined as P. W. 17. In the presence of the panchas, the appellant Sandip Patil repeated his said willingness which was recorded in a panchnama. Thereafter S. D. P. O. Trambake, along with the public panchas and Sandip Patil on a jeep proceeded for the hostel of Sandip Patil at Pune. They reached the said hostel at 10 p.m. Thereafter. S. D. P. O. Trambake called the Rector of the Hostel one Sharad Kulkarni P. W. 16 and sought permission from his to search the room of the appellant - Sandip Patil.
Sharad Ganesh Kulkarni P. W. 16 asked S. D. P. O. Trambake to make an application in writing which he made and on the said application, he granted permission. The said application is Exhibit 92. Thereafter, in the presence of Sharad Kulkarni P. W. 16 and public panch Sanjav Salunkhe P. W. 17, the appellant - Sandip Patil took out the keys from the pocket and opened the door of his room (Room No. 120) in the said room in their presence he opened a suit case which was lying in the said room and had blood stains. He then produced his blood stained shoes and a blood stained shirt. In the pocket of the shirt, there were three tickets of S. T. bus. He then produced a blood stained jeans and a blood stained muffler on which there was a hair. He thereafter produced a torch of green colour from the table which was in a working condition and a black coloured school bag from the cot which was stained with blood. He then produced cash to the tune of Rs. 7,100/-. The said cash comprised of 14 currency notes of Rs. 50/- and 64 currency notes of Rs. 100/-. The said seizure was made under a panchnama.
11. The evidence of S. D. P. O. Trambake P. W. 37 and public panch Sanjay Salunkhe P. W. 17 shows that on 30.10.1996 the appellant - Sandip Patil showed his willingness to produce the shirt, slippers and a carry bag which he had thrown under the Mhatre Bridge at Pune. The said willingness was recorded under a panchnama and thereafter, S. D. P. O. Trambake, public panch Salunkhe, the appellant and others proceeded in a jeep towards Mhatre Bridge. At the instance of the appellant - Sandip Patil, it was stopped near the western side of the bridge. The appellant - Sandip Patil showed them the place from the bridge where he had thrown the articles in the river. Thereafter, they went towards the northern side and then to the western side near mori No. 3. There was grass of height of 3 to 4 feet there. The appellant - Sandip Patil moved in that area and took out a T-shirt lying there which was blood stained. At a distance of about 10 feet therefrom, he picked up a slipper and at a distance of 10 feet therefrom, he produced another slipper. He then moved towards the eastern side. At a distance of about 15 feet he picked up a plastic carry bag bearing the name of Kale. The said articles were seized under a panchnama.
12. The evidence of P. I. More shows that on 31.10.1996, in the presence of public panchas, he obtained the specimen hand writing of the appellant- Sandip. The same was sent by him to the Hand Writing Expert. On 31.10.1996, he sent the appellant - Sandip Patil to the doctor to obtain his blood sample and hair.
13. The evidence of P. I. More shows that on 31.10.1996 the appellant - Prakash Patil expressed his willingness to get the clothes which he had worn at the time of the incident and which he had kept in the house of Zumbhar Patil recovered. Consequently, P. I. More sent for public panchas both of whom namely Prakash Chitalkar P. W. 2 and Nagesh More P. W. 3 have been examined. In their presence, the appellant - Prakash Patil repeated the said willingness which was recorded under a panchnama Exhibit 55. Thereafter, P. I. More, the public panchas and the appellant -Prakash Patil proceeded to the house of Zumbhar Patil from where the appellant - Prakash Patil took out a shirt and a pant which were hanging on a nail of the wall. They were blood stained. The said recovery was effected under a panchnama Exhibit 56.
14. Evidence of P. I. More shows that on 7.11.1996 he interrogated the appellant - Sandip Patil who during the course of his interrogation stated that the empties of the cartridge used in the crime were thrown by him after keeping them in a plastic bag on the southern side of Mhatre Bridge at Pune. He expressed his willingness to get them recovered.
Consequently, P. I. More sent for public panchas, one of whom Tanajl Ajabe has been examined as P. W. 18. In the presence of public panchas, the appellant - Sandip Patil repeated his said willingness. It was recorded under a pancbnama. Thereafter, P. I. More along with the public panchas and the appellant - Sandip Patil proceeded on a jeep to Mhatre Bridge, Pune. All of them got down under the bridge. First they went to the western side of the bridge. From there, the, appellant - Sandip Patil took them to the eastern end and then moved towards thereof of mori No. 4. He stopped there and said that from there he had thrown the articles in the bed of the river. Then he went towards the western end of the bridge and got down in the bed of the river. It was southern bed of the river. From there, the appellant - Sandip Patil moved towards mori No. 4. It was a grassy area. He searched and found a plastic bag wherein there were six empty cartridges containing letters KF-1293. The said cartridges were seized under a panchnama.
15. The evidence of Sudhakar Yarlagadda P. W. 19 shows that since 10.6.1996, he was working as J. M. F. C.. Malegaon. On 8.11.96, day the Chavani police produced the appellant - Sandip Patil before him. After remanding him to police custody for 24 hours, and to magisterial custody for 48 hours thereafter and after repeatedly warning him that he was not bound in law to make the statement and if he made the same, it could be used in evidence against him and his father and after ascertaining that it was his voluntary statement and not the result of any duress or coercion by the police, recorded his confessional statement under section 164 of the Cr. P. C. on 11.11.1996. The said statement was recorded in Marathi but since it is a vital piece of evidence, we are extracting the relevant part of its official translation, which is in English, in entirety.
That the said translation is correct is not disputed by the counsel for the parties.
"Q. What do you want to say in your statement ?
Ans : On 19.10.96, after the studies of my Engineering Semester were over, I had gone to Nasik. On 21.10.96. at about 7.30 p.m. my father and I had gone to a shop by name "Kumar Shirts" for purchasing shirt. It was a Dassera day. Before 19.10.96, my uncle Supadu Dhavat Patil had telephoned me and said "If you come down to Nasik from Pune, then come down to Soyagaon, hence when I had gone to buy shirts. I had told my father that I would go to Soyagaon on 23.10.1996, when my father told me that there was hearing of the case on 24.10.96 in Maiegaon Court for that reason and to look for purchaser for selling the plot situated in Soyagaon. he would come to Soyagaon. On 23.10.1996, in the afternoon at 3.30 p.m. I came to Maiegaon by Amalner S. T. bus. At about 7.15 p.m. I reached at the bungalow of my uncle that is to say the deceased Supadu Patil at Soyagaon. I had told my uncle that my father would come for the case on 24.10.1996. After having meals etc. and after watchingT. V. and chatting, I had gone to sleep. On 24.10.1996, there was a hockey match of the deceased Rakesh in Satana, hence he left in the morning at 8.00 a.m. Poonam (deceased) and I were doing studies in the bedroom upto 12.00 noon. Thereafter uncle left away for attending the Court case. In the afternoon at about 2.15 p.m. Poonam left as she wanted to attend college. Immediately, thereafter Pappu (Rakesh) had come and thereafter between 2.45 and 3.00 p.m. Rupali (deceased) had come from Dhule and uncle had returned between 2.30 p.m. and 3. 00 p.m. In the evening, at 5.30 p.m. Rupali and uncle both had left for agricultural field at Dubhadi by a vehicle (i.e. Tata Mobile) and they returned between 6.30 and 7.00 p.m. As it was Rakesh's birthday on that day, uncle had brought pedhas from outside. 'Owalani (To move a lamp bin a circular motion before God and man) was done before him between 9.00 and 9.30 p.m. Thereafter, we all had our meals and had been watching T. V. As uncle and aunt were observing fast on that day they did not have their meals. In the night at 10.30 p.m. uncle, aunt and Poonam went to sleep in the bed room. Rakesh. Rupali and I were watching T. V. upto 11.30 p.m. In the night at 11.30 p.m. they both went to sleep in the same room where the T. V. was kept. As per my habit in the hostel, I spread mattress next to Rakesh and sat for doing my studies. While I was doing my studies, a thought came to my mind that why my father had not come when he had told me that he would come. In the night between 2.00 to 2.15 p.m. I kept the book on the table and went to sleep on the mattress. However, I could not sleep. In the night at 2.30 a.m. I heard a knock on the door. When I went to see there, I heard a call 'Sandip' from the window adjoining the kitchen. I saw my father through window. Thereafter. I opened the door. After opening the door my father asked me "Whether everybody went to sleep?" Thereupon, I said that everybody had gone to sleep and that whether I should wake them up. Thereupon, my father said "Don't wake them up. I myself would wake them up." Thereafter, he asked me for my sweater. Thereupon. I showed him the sweater lying in front of the cupboard in the devghar (the room of the household gods). He put on my sweater. After wearing sweater, he went to the bedroom and T. V. room and returned. Thereafter, he removed sweater and shirt and put on T -shirt which was hanging on the wooden peg in front of the basin. Thereafter, he again went to the bedroom and I went to the W. C. I came out from the W. C. and washed and cleaned my hands and went to the kitchen room for drinking water. After having water, I put the glass on the floor, when I suddenly heard the noise of firing of bullet from T. V. Room, Immediately 1 heard a loud cry of Rakesh shouting "Aaiga" (Oh Mother). Thereafter. I heard another round of fire and heard a cry 'Aai' in a woman's voice. I thought it was Rupali's voice. Upon hearing the voice I went to the curtain of the T. V. Room. My father was having a muffler on his face and was wearing spectacles and was armed with a gun. He ran towards bathroom. When 1 saw from there, Pappu was lying across on the mattress and Rupali was lying on the Sofa. Both of them were hit by bullets. When I was standing near curtain Poonam came running from the bedroom and as curtain was in between she could not recognise me and scuffled with me like a cat. When she was removing curtain from my face. I got scratches of her hand's nails on my nose. Thereafter, I shook her and said I am Babloo. I thought uncle and aunt would wake up and that they might think that I myself had killed them and out of this fear I tried to go outside through the kitchen door. Earlier, when father entered the room. I only had put a lock to the door. But, due to panic, I could not recall as to where I had kept the key. Hence, I could not go outside. When I was in the kitchen I heard cries of aunt, Poonam and grand mother shouting "Bring vehicle and make a telephone." When I peeped in from the kitchen I saw uncle going to the bedroom and immediately heard a noise of opening the cupboard. When my father standing between bathroom and W. C. space, fired one round. Aunt and Poonam came out from T. V. room and pushed my father upto the fridge in the devghar. In this scuffle. I heard a noise of firing and immediately Poonam collapsed on the floor with her head towards the kitchen, in the devghar. Thereafter, I started crying in the kitchen sitting beside table. At that time, I saw my grand mother going to the bedroom. After she went to the bedroom I heard her crying loudly. A short while thereafter my father went to the bedroom and I heard a noise of firing two rounds. I heard the noise of shouting of aunt and grand mother at the same time. Thereafter, my father came to the kitchen and told me : "We have to go, be ready." At that time my father removed his spectacles and his eyes were full of tears. When I was going to the devghar. I saw uncle lying in a supine condition in the bedroom and grand mother was lying in his opposite direction and aunt was struggling. I was so much panic stricken that I could not understand as to which clothes out of the clothes viz., navy blue colour jeans pant, dark snuff (chocolate) colour shirt which were lying nearby when I went near to my baggage kept in the devghar should I wear. Thereafter, I put on my own clothes and brought my sweater lying in the kitchen . When I was keeping my white shirt, hanging on the string, in my bag, my father had gone to W. C. My father came out from W. C. wearing slippers, and went to the bedroom. I followed him to see as to what my father was doing. He wiped the gun with an handkerchief and hung the same on the nail. He put cartridge belt in the Godrej cupboard. Thereafter, he collected keys lying on the floor near the cupboard and started coming out from the bedroom. At that time, I started putting on my shoes kept beneath the basin opposite the bathroom. At that time my father partially shut the door to open the cupboard kept behind the door of the devghar. For that purpose, he pushed aside my suit case which was kept nearby. As door was open I could not see as to what he took out from the cupboard. When I was putting on my socks. I thought of going to W. C. Hence, I removed my socks, Thereafter, I went to W. C. I came out within five to ten minutes arid washed my feet and put my shoes, when my father handed over to me my suit case and school bag. Thereafter, my father went to T. V. room and brought one pen and paper. He asked me to write as he said. I asked him the reason. Thereupon, he got annoyed and shouted at me saying : "Do what I say". Thereafter, I wrote the matter on paper as dictated by him. My hands were shaking. I was in a panic stricken condition. After having written on the paper he put the Reynold's pen in the school bag hung to my shoulder. My father unlocked the door. I went outside. My father brought torch from devghar and came outside. Thereafter, he bolted the door and put a lock to it and tucked the chit in the lock. My father and I climbed down the stairs and started going out from the compound gate. On the road my father gave battery (torch) in my hand and took out bundle of notes of rupees hundred from his pocket in the illumination of battery and handed over to me. After the boundary of Mala (agricultural field) was over my father threw away keys by the side of that road. We went up to Ekatmata chowk on foot. From there we reached (went) to Malegaon S.T. stand by an auto rickshaw. My father was waiting on one side and I went to enquiry counter and made enquiry as to when was the bus to go Nasik. At that time, it was 5 a.m. The person at the counter said that there was a bus for Nasik at 5.15 a.m. Thereafter, I asked as to when was the next bus for Pune, thereupon he said 4.30 bus has left just now, next bus is at 7.30 a.m. Saying thus he shouted at me saying : "Which bus do you want, for Nasik or Pune." At that time, one jeepwalla was shouting" Nasik Nasik". Thereafter we boarded the said Jeep and went to Nasik. Between 7.30 a.m. and 7.45 a.m. my father alighted at Nimani bus stop and gave Rs. 60/- to the Jeepwala and I got down at C.B.S. Nasik and boarded the bus leaving for Pune at 8.05 a.m. from Mela stand, Nasik. Thereafter. 1 reached at Pune between 1.00 and 1.30 p.m. I engaged an autorickshaw at Shivajinagar. After reaching to my M.I.T. Hostel, rickshaw driver was demanding Rs. 35/- when as per the meter the fare was coming to Rs. 20/- only. When I was getting down from rickshaw and was giving money to him. rickshaw driver caught hold of my hand and pulled me, as a result I sustained injury at the portion below my right eye by striking against autorickshaw meter. I had a quarrel with the rickshaw driver over the money (fare) I called for tariff card from another rickshaw driver and accordingly I paid Rs. 20/- to rickshaw driver and be went away. On the same day i.e. on 25.10.96, in the night between 8.00 and 8.30 p.m. when the articles from my bag were removed, in a plastic bag I found one blood smeared T-shirt, handkerchief, gloves and a pair of white slippers and found six empty cartridges in a white bag. I think my father might have kept the said articles in my bag when I had gone to W.C. because only my father had given me the said bag when 1 had came out from the W.C. In our Hostel, roll call is taken and checking is done in the night. I got frightened and went outside taking cycle of one of my friends and dropped it down from Mhatre bridge situated on the Karve Road. When I was thinking as to what could be done in respect of the abovementioned articles found in my bag, a phone was received in the canteen of the hostel and I got a message to that effect. Hence. I went there and a person who was calling on the phone identified himself as younger brother of Suresh and told me; You come early to Malegaon, if you cannot, then come in the morning. After having received the telephone, I returned to my room. In the morning I packed my clothes to go to Malegaon. Thereafter, one of my friends gave me a cycle and asked me to call and bring another friend by name Rohit for celebrating Kojagiri. Accordingly, I had thrown away the aforesaid articles from Mhatre bridge when I was on my way. I went to the room of the said Rohit and returned from there and did some study by sitting in Room No. 102 for sometime and thereafter went to sleep. In the night between 2.00 and 2.30 a.m. police of Kothrud Police Station came and took me to the said Police Station for making enquiry. On the next day, P.S.I. Ugale came to Kothrud Police Station from Malegaon in the morning to take me away. Thereafter, on 27.10.1996 that is to say at 1.00 a.m. of 27.10.96. I was brought to the office of Additional S.P. of Malegaon where D.I.G. Shri Mohite was present and even S.P. and other Officers were also present. I narrated before them the incident that had occurred. Thereafter, I was lodged in the police custody. When I was in police custody, the police had led me to Pune. I had shown them the place near Mhatre bridge where I had thrown away the articles and the police had seized the same. When I was in police custody. I had given all the co-operation to them. Thereafter, I was taken into magisterial custody. When I was in police custody on the date 4.11.96. S.P. Shri Roy saheb made enquiry with me when I expressed before him some two - three doubts about the incident that occurred when he said "If you have any doubt you express the same before the Magistrate when your statement is going to be recorded." In order that I should not forget all such doubts. I jotted them down on the paper and today 1 give the same to you.
(On this day here the accused has handed over a document (writing) made on a paper in his own handwriting and under his signature which contains 15 points the same is annexed to this statement) This is my statement, I am read over the same and the same is recorded as stated by me and the same is correct.
S/d (Illegible) (Sandip Prakash Khairnar) Before me S/d. (Illegible) 2.45 hrs. 11.11.96 IV. Jt. J.M.F.C., Malegaon Judicial Magistrate, F.C. (IV Jt) II Court. Malegaon.
Since in the answer, it is mentioned that when he told the Superintendent of Police Mr. Roy during the course of interrogation that he had two or three doubts regarding the incident and Mr. Roy said that he could express them before the Magistrate and the said doubts are mentioned on a paper which he handed to the Magistrate, we are reproducing the official English translation of the paper on which they are written thereof (Exhibit 116) and which he had handed over to the Magistrate, The original in Marathi but, counsel for the parties do not doubt that the said translation is correct.
(1) 1 was called as Sandip, why?
(2) He was speaking by putting gloves in the hands and putting hands on the mouth and they were not speaking much with me, (3) Discrepancy appeared in voice and walking.
(4) While writing and reading only father was putting spectacles but he had put on spectacles that night and there was also no case of Ramesh Opticians in his pocket.
(5) Eyes of my father are very hollow. However, that day the eyes appeared rather big and ferocious and joy was seen in the eyes.
(6) While wiping, spectacles were taken off but eyes were not rubbed and he was weeping without speaking anything only tears were coming from the eyes.
(7) Hair dye appears to have been used for hair. Further discrepancy was appearing in hair style and mustache.
(8) Why the note was got written from me only?
(9) Why did father get down at Nimai itself?
(10) Why did he put all articles into my bag without my knowledge?
(11) There were no rings into fingers when the gloves were taken off. Further there was sound of boots while walking, because boots of my father were of rainy season and the boots of rainy season do not give sound. Then what type of boots were 2 and where are they?
(12) While speaking, their language was strange i.e. it was not a usual.
(13) Most important thing is that how did they dare to kill their own mother, who has given birth to him?
(14) Why did they only removed moneys from cupboard and give them to me?
(15) When my paternal uncle's wife abused them, why did he not give any answer?
While recording my statement this day, I personally handed over this chhitthi (note) to Magistrate as referred to in the statement.
[Signature Illegible) 11.11.96 ..... Khalrnar.
Following portion is written in English presented by the accused hearing his statement u/s. 164 of the Cr.P.C. today before me.
Signature Illegible Sign. Illegible 4th Jt. Judicial Magis. F.C.,BR> II Court, Malegaon.
Chief Translator and Interpreter's Office, High Court. Bombay. A true translation.
16. From the evidence of P. I. More it appears that during the course of the investigation, it came to light that immediately within three hours of the incident, the appellants had boarded a jeep of one Uttam The P.W. 15 from Malegaon to Nasik. Consequently, on 18.11.1996 P. I. More recorded the statement of Uttam Thethe. Earlier on 13.11.1996, P. I. More sent a letter to the Tahsildar requesting him to conduct the test identification parade of the appellants and of the property recovered from them.
On 19.11.1996, Radhakrishnan Deshpande P.W. 24 who was then Tahsildar Malegaon conducted the identification of the property and on 22.11.1996 put up the two appellants for test identification. It is pertinent to mention that at the test parade, Uttam Thethe P.W. 15 correctly identified them.
17. It is pertinent to mention that during the course of investigation. P. I. More ascertained that the pant and shirt recovered from the appellant - Prakash Patil was stitched by Kale Tailors. In fact, the owner of Kale Tailors, Pradeep Kale has been examined as P.W. 14. During the course of investigation, P. I. More also sent the articles seized from the place of the incident, those recovered from the appellants, and the nail clippings of the appellants to the Chemical Analyst. He also obtained the sanction for prosecution of the appellants for the offence under the Arms Act.
On 30.1.1997, after the report of the Chemical Analyst, Ballistic Expert and Hand-writing Expert had been obtained, he submitted the charge-sheet against the appellants.
18. The case was committed to the Court of Sessions in the usual manner where the appellants were charged on the counts enumerated in para 2 to which they pleaded not guilty and claimed to be tried.
During trial, in all the prosecution examined 43 witnesses. It is pertinent to mention that there is no eye-witness of the incident and the case rests on circumstantial evidence. The circumstances adduced by the prosecution have been proved by it through the evidence of these witnesses.
In defence, two witnesses namely Vidya Patil D.W. 1 (wife of the appellant - Prakash Patil) and Nishikant Bhalerao D.W. 2 were examined. The former deposed that on the night of 25.10.1996 till 12.30 a.m. the appellant - Prakash Patil taught his daughters and at 5 a.m. she found him asleep. The latter deposed that he was working as Resident Editor of the Daily Deshdut at Nasik. He was examined to show that the recoveries were concocted because, prior to their being effected, reports about them already used to appear in the press.
The Trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in para 2 above.
Hence, this appeal.
As mentioned in the said para. Confirmation Case No. 3 of 2000 arises out of the reference made by the Trial Judge for confirmation of the death sentence of the appellants and Criminal Appeal No. 400 of 2000 has been preferred by the appellants against their convictions and sentences recorded by the Trial Court.
19. We have heard learned counsel for the parties. Since this is a case wherein accused persons have been sentenced to death, we have meticulously gone through the entire record. We have perused the depositions of the prosecution witnesses, the exhibits proved by it to prove its case, the statement of the appellants recorded under section 313 of the Cr. P.C., their written statements, the evidence of the defence witnesses and the impugned judgment.
After the utmost circumspection, we have reached a conclusion that both Confirmation Case No. 3 of 2000 and Criminal Appeal No. 40 of 2000 have to be accepted in part.
20. We may straight away mention that the instant case hinges on circumstantial evidence. It is common knowledge that in such a case the circumstances against the accused persons have to be enumerated and thereafter the Judge has to see whether the circumstances are established beyond all doubt, leading to the inference of guilt of the accused persons and are incompatible with the inference of their innocence. It is only when a Judge finds that the circumstances are wholly compatible with the guilt of the accused and incompatible with innocence of the accused, does he proceed to convict. If the converse is the case, the Judge acquits.
We cannot refrain from expressing our indignation that inspite of the fact that the case rested on circumstantial evidence, the learned Trial Judge has nowhere in the impugned Judgement enumerated the circumstances and set out against each circumstance the relevant evidence.
Consequently, we did this exercise ourselves.
21. After perusing the impugned Judgment, we find that the prosecution has adduced the circumstances enumerated hereinafter against the appellants :-
Against the appellant - Prakash Dhaval Khairnar (Patil) the following circumstances have been adduced :-
(a) motive;
(b) at the time of his arrest on 28.10.1996, he was putting on blood stained shoes which were recovered under a panchnama;
(c) recovery of the blood stained shirt and pant on 31.10.1996 on his pointing out from the house of his brother-in-law Zumbhar Patil in Soyagaon;
(d) presence of a injury over the right superior surface of shoulder when he was medically examined on 29.10.1996 at 6.25 p.m. by Dr. Wagh P.W. 3, which injury, on the facts of the case, appears to be the result of impact of the butt-end of the gun which he had repeatedly fired in the incident;
(e) leaving Malegaon on 25.10.1996 at about 5 a.m. in the taxi of Uttam Thethe P.W. 15 and being identified by the said witness at the test parade on 22.11.1996; and
(f) confession of his son co-accused Sandip Patil recorded under section 164 of the Cr.P.C. which inculpates him.
We may mention that the evidence relating to each of these circumstances has been put to the appellant Prakash Patil in his statement under section 313 of the Cr.P.C.
22. Against the appellant- Sandip Patil the circumstances adduced by the prosecution are :-
(a) motive:
(b) last seen:
(c) recovery of a chit written by him from the lock fixed on the door of Supadu Paul's house on the morning of 25.10.1996;
(d) presence of injuries on his person when he was medically examined on 28.10.1996 at 2.15 p.m.;
(e) recovery of a suit case containing the blood stained clothes and some other articles on his pointing out from Room No. 120 of M.I.T. Hostel, Pune, on 29.10.96, wherein he used to live at the time of the incident:
(f) recovery of a T-shirt, pair of slippers and handkerchief on his pointing out from near Mhatre Bridge. Pune on 30.10.1996;
(g) recovery of six empties on his pointing out from near Mhatre Bridge. Pune on 8.11.96;
(h) leaving Malegaon on 25.10.1996 at about 5 a.m. in the taxi of Uttam Thethe P.W. 15 and being identified by the said witness at the test parade on 22.11.1996; and
(i) confession made by him under section 164 of the Cr.P.C. on 11.11.1996 before the J.M.F.C., Malegaon.
We feel it pertinent to point out that the evidence relating to each of these circumstances has been put to the appellant Sandip Patil in his statement recorded under section 313 of the Cr.P.C.
23. We now propose taking up the circumstantial evidence adduced by the prosecution against each of the appellants.
We begin with the appellant - Prakash Patil.
As mentioned earlier, the prosecution has adduced the following circumstances against him :-
(a) motive;
(b) at the time of his arrest on 28.10.1996, he was putting on blood stained shoes which were recovered under a panchnama;
(c) recovery of the blood stained shirt and pant on 31.10.1996 from the house of his brother-in-law Zumbhar Patil in Soyagaon on his pointing out;
(d) presence of a injury over the right superior surface of shoulder when he was medically examined on 29.10.1996 at 6.25 p.m. by Dr. Wagh P.W. 36 which injury appears to be the result of impact of the butt-end of the gun which he had repeately fired in the incident;
(e) leaving Malegaon on 25.10.1996 at about 5 a.m. in the taxi of Uttam Thethe P.W. 15 and being identified by the said witness at the test parade on 22.11.1996; and
(f) confession of his son co-accused Sandip Patil recorded under section 164 of the Cr.P.C.
24. We begin with motive.
To prove this circumstance, the prosecution examined two witnesses namely Vyankat Pagare P.W. 33 and Raosaheb Patil P.W. 34. The evidence of Vyankat Pagare P.W. 33 shows that he was the servant of the deceased Supadu Patil and used to reside in a shed situated at a distance of about 50 feet from his bungalow situated in Soyagaon. He stated that he knew the family members of Supadu Patil and appellant Prakash Patil because, the latter used to visit the former. His evidence shows that the appellant-Prakash Patil used to tell Supadu Patil that the land should be partitioned and he should be given his share and Supadu Patil used to tell him that he would think about it later. His evidence further shows that on account of this, there used to be quarrels and exchange of abuses between Supadu Patil and Prakash Patil.
In relation to motive, he also stated that once in summer, while he was watering the plants, an exchange of abuses took place between them and Prakash Patil threatened to kill Supadu Patil. The evidence of Raosaheb Patil shows that Supadu Patil was his sister's husband. His evidence also shows that there was ill will between Supadu Patil and Prakash Patil on account of land. He stated that about eight years prior to the incident when he was entering the bungalow of Supadu Patil. he met Prakash Patil who was coming out therefrom; when he wished Prakash Patil, he did not reply; thereafter when he wished Supadu Patil he also did not reply; thereafter when he went inside the kitchen, he found his sister Pushpatai, her daughters Poonam and Roopali and her son Rakesh mum; and when he asked Pushpatai the reason for keeping mum, Rakesh replied that Babu (Prakash Patil) had threatened to kill his father. His evidence shows that Pushpatai had told him that the dispute between Prakash Patil and Supadu Patil was on account of partition of agricultural land.
He also staled that about four months prior to the incident, when he had gone to Supadu Patil's house, he found Supadu Patil, Prakash Patil and son of their paternal aunt talking in the drawing room. When he asked his sister Pushpatai what was going on, she replied that they were talking about carving of plots and it was the usual dispute.
We have gone through the evidence of Vyankat Pagare and Raosaheb Patil and we find it to be truthful and credible. Since the former was the servant of the deceased Supadu Patil and the latter was Supadu Patil's brother-in-law, we approached their evidence with caution but even after exercising the said caution, we find it creditworthy. Although they were cross-examined but, nothing could be extracted therefrom which could shake their evidence in respect of motive.
25. Mr. Shirish Gupte, learned counsel for the appellants strenuously urged that we should not accept this circumstance of motive for a number of reasons.
He urged that the evidence of Vyankat Pagare that once in summer he saw the quarrel between Prakash Patil and Supadu Patil. during which the former had threatened to kill the latter, should not be believed by us because it is not clear from Vyankat Pagare's evidence as to which summer he was referring to.
We have reflected over Mr. Gupte's submission and are constrained to observe that we do not find any merit in it. In our view, the summer to which Vyankat Pagare is referring in his evidence was the summer of 1996 in which year the incident took place. We say this because had it been any previous summer, he would have stated which summer it was. In his cross-examination (in para 14) he also stated that "since the quarrel in the summer in between Supadu Patil and Prakash Patil. I did not see Prakash Patil at the house of Supadu Patil. During this period, Prakash Patil was coming to see his mother on the nursery and was returning." In our view, the expression "in the summer" refers to the preceding summer. Hence, we reject this submission of Mr. Gupte.
26. Mr. Gupte next urged that since the evidence of Raosaheb Patil P.W. 34 of the shows that about four months prior to the incident when he visited Supadu Patil's house, he found both of them talking about carving of plots, the relations between them were good. We regret that it would not be possible for us to draw the said inference, not only in view of the specific evidence of Vyankat Pagare P.W. 33. to which we have referred to earlier and which shows that whenever Prakash Patil used to ask Supadu Patil to partition the land and give him his share, the latter used to say that he would think later and a quarrel and exchange of abuses used to take place between them but. also because both Vyankat Pagare and Raosaheb Patil stated that Prakash Patil had threatened to kill Supadu Patil.
Further, had the relations been good then appellant Prakash Patil's wife and daughters would also have been visiting Supadu Patil but, the evidence of Vyankat shows to the contrary.
In his cross-examination (in para 14) Vyankat stated that he had not seen Sandeep's mother and three sisters coming to Supadu Patil's house.
We may also mention that when during cross-examination it was suggested to Vyankat Pagare that there was no dispute between Supadu Patil and Prakash Patil and he had made a false statement, he emphatically denied the said suggestion.
27. For the said reasons, in our view, motive is established.
28. We now come to the second circumstance namely the appellant -Prakash Patil at the time of his arrest i.e. on 28.10.1996, was putting on a pair of blood stained shoes which were recovered under a panchnama.
In respect of this circumstance we have the evidence of the investigating Officer P. I. Ramesh More P.W. 42 and public panchas Nagesh More P.W. 3 and Prabhakar Savable P.W. 7. P. I. More's statement makes it clear that he arrested the appellant Prakash Patil on 28.10.1996. Para 2 of the statement of Nagesh More and para 1 of the statement of Prabhakar Shevale makes it explicit that he was arrested on 28.10.1996.
The evidence of Nagesh More and Prabhakar Shevale shows that the shoes which Prakash Patil was wearing were seized. Para 1 of the statement of Prabhakar Savale and para 6 of the statement of P. 1. More and the recovery panchnama of the shoes Exhibit 58 shows that there was blood on the shoes. It is pertinent to mention that this recovery of blood stained shoes has gone unchallenged in the cross-examination of P. I. More and the public panch Nagesh More and even the public panch Prabhakar Shevale was not suggested during cross-examination that the blood stained shoes were not recovered from the appellant- Prakash Patil. What he was sug-gested was that in the panchnama there was no mention of the blood stains to which he replied "there is mention of red colour stains".
We may mention that both the panchas namely Nagesh More and Prabhakar Savale were independent, had no rancour or illwill against the appellant Prakash Patil and in our view neither they nor P. I. More who also had no rancour or ill will against Prakash Patil would have falsely deposed about the recovery of the blood stained shoes from his person on 28.10.1996.
In our view, the defence case that when appellant Prakash Patil on learning about the multiple murders entered the house and his shoes may have then got stained with blood does not inspire confidence.
The evidence of Vyankat Pagare P.W. 33 and Ashok Bachav P. W. 1 shows that on 25.10.96 at 1.30 to 2 p.m. the appellants came on the place of the incident. Evidence of Vidya Khairnar (Patil) also shows that at the same time they reached the place of the incident.
In this connection, It would be pertinent to refer to the inquest reports of the six corpses. Their perusal shows that they were conducted between 10.45 a.m. to 12.10 p.m. on 25.10.1996.
In this connection, it would also be pertinent to refer to the evidence of Police Constable Sunil Rambhau Nikam P.W. 12 who stated that on 25.10.1996 at 12 noon he took the corpse of Kesarbai for autopsy and in his cross-examination stated that all the dead bodies were taken for post mortem simultaneously.
In view of this evidence, it is clear that by the time the appellant Prakash Patil reached the place of the incident, the six corpses had been sent for autopsy and therefore, there was no reason of his entering inside the house and seeing them.
In this connection, it would be pertinent to refer to para 71 of the impugned Judgment wherein the Trial Court has observed as follows :-
"It has come in the evidence that the policemen were not allowing anybody to enter into the bungalow."
We may also refer that in his written statement the appellant - Prakash Patil has given a very guarded explanation with regard to the blood being found on his shoes. The said explanation is :-
"It is possible that during my inspection, some blood possibly came on to my shoes and clothes but. about the same I cannot say definitely."
It is pertinent to mention that the shoes were sent to the Chemical Analyst and blood of A group (namely the blood group of the deceased Kesarbai) was found on them. It is also pertinent to mention that the blood group of the appellant - Prakash Patil is 'O'. We may also mention that the nail clippings of the feet of appellant - Prakash Patil were sent to the Chemical Analyst and on them he found blood of 'O' group.
29. For the said reasons, in our view this circumstance has been established and it heavily incriminates appellant Prakash Patil.
30. Mr. Shirish Gupte, learned counsel for the appellants strenuously urged that presence of blood on the shoes and nail clippings on the appellant - Prakash Patil is not incriminating because, the evidence is that on learning about these multiple murders, the appellant - Prakash Patil visited the place of the incident and his feet may have got stained with blood when he went inside the house to see the dead bodies. We regret that for the reasons stated by us above we do not find any merit in this submission.
31. We now come to the third circumstance namely the recovery of the blood stained shirt and pant on the pointing out of the appellant - Prakash Patil from the house of his brother-in-law Zumbhar Patil in Soyagaon on 31.10.1996. In respect of this circumstance, we have the evidence of P. I. More P.W. 42, Prakash Chitalkar P.W. 2 and Nagesh More P.W. 3.
The evidence of P. 1. More shows that on 31.10.1996 he interrogated the appellant - Prakash Patil and during the course of his interrogation, he stated that he could produce the clothes which he had worn at the time of the incident and had kept in the house of Zumbhar Patil. Consequently, he sent for the public panchas Prakash Chitalkar P.W. 2, and Nagesh More P.W. 3. In their presence, he recorded the said willingness of the appellant - Prakash Patil vide panchnama Exhibit 55. Thereafter. P. I. More, the public panchas and police personnel led by the appellant went to the house of Zumbhar Patil and the appellant produced a pant and a shirt which was hanging on the western side of the wall and which were stained with blood.
It is Pertinent to mention that the said pant was sent to the Chemical Analyst who found on it blood of 'O' group. The appellant has failed to explain as to how blood of the said group was found on his pant. It is pertinent to mention that the said pant was stitched by a tailor namely Pradeep Kale P.W. 14 who identified it as having been stitched by him and produced the receipt No. 433 which was in the name of the appellant.
It is pertinent to mention that during cross-examination when P. I. More was suggested that the said clothes were not recovered on the pointing out of the appellant - Prakash Patil. he refuted the suggestion. It is also pertinent to mention that both the public panchas of recovery were independent and like P. I. More bore no malice or illwill against the appellant - Prakash Patil and in the absence of the same they would not have attributed a false recovery to him.
32. Mr. Shirish Gupte, learned counsel for the appellants strenuously contended that the said recovery cannot be accepted because, there is no evidence of the authorship of concealment on the part of the appellant -Prakash Patil.
To lend force to his submission, Mr. Gupte invited our attention to a Division Bench decision of this Court in Salim Babamiya Sutar v. State of Maharashtra, to which one of us (Vishnu Sahai, J.) was a party and wherein on the decision of the Supreme Court rendered in the case of Pohalya Motya Valvi v. State of Maharashtra, we took the view that since in the recovery panchnama the authorship of concealment was not reflected, the recovery could not be relied upon.
Mr. Mhaispurkar, learned Additional Public Prosecutor for the respondents countered the correctness of the submission of Mr. Gupte both on facts and in law. He urged that the relevant part of the recovery panchnama Exhibit 55 shows authorship of concealment by the appellant and reads thus :
"While coming from Nasik to Soyagaon, we have kept the clothes of my wife and daughters in the suit case and had brought the suit case with us and in the same suit case my above pant and shirt is kept. 1 shall take out and produce the same, come with me."
We find merit in Mr. Mhaispurkar's submission and we find that the portion of recovery panchnama which we have extracted above makes the authorship of concealment by the appellant - Prakash Patil explicit.
Mr. Mhaispurkar placed reliance on para 26 of the decision of the Supreme Court in State of Maharashtra v. Suresh, wherein the Supreme Court observed thus :
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the Criminal Court that his knowledge about the concealment was on account of one of the last two possibilities the Criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by himself."
Mr. Mhaispurkar urged that since the appellant - Prakash Patil did not offer any of the three explanations, the presumption in view of the said decision of the Supreme Court would be that it was he who had concealed the pant.
33. Mr. Gupte also urged that this recovery should not be believed because the evidence of the public panch Prakash Chltalkar shows that in this case he has acted as a panch in about 16 panchnamas. He urged that the special fondness of the investigating agency to make him panch reflects the falsity of the recovery.
Mr. Gupte also urged that the cross-examination of Prakash Chltalkar shows that he is very close to the police. He invited our attention to para 41 of his statement wherein he admitted that he was married in the year 1995 and on his marriage invitation card, in the names of prekshak (with best compliments from) names of P. I. More, A.P.I. Suresh More, A.P.I. Valvi, A.P.I. Shaikh and Appasaheb Deshmukh, all of Chavani Police Station and of Mathure of Taluka Police Station were shown.
It is true that he made the said admission but. the said admission has to be read along with his latter admission that he had shown that the names of these persons in order to enhance his prestige.
The Investigating Officer P. I. More when cross-examined on his fondness to make Prakash Chitalkar a panch, in para 22 of his statement, replied that there is no special reason to use Prakash Chitalkar in all these panchnamas except the reason that nobody comes forward to be a panch witness in police cases. This is a reality which all of us have to accept and from which none can shy.
The reticence on the part of people to become a witness, of which judicial notice can be taken, leaves the Investigating Officer with no other option but, to repeatedly have the same person as a panch.
At any rate, it should be borne in mind that there is nothing in evidence to show that Prakash Chitalkar had acted earlier as a panch and is a stock panch of the police. In this connection, it would be pertinent to refer to his cross-examination (para 41) wherein he emphatically denied the suggestion that he had acted as a panch in not less than 100 cases and has stated that he has not acted as a panch in any case before 25.10.96 (the date of the first panchnama in this case).
For the said reasons, we reject this submission of Mr. Gupte. In our view, this circumstance has also been established and highly incriminates the appellant- Prakash Patil.
34. We now come to the circumstance that when on 29.10.1996 at 6.25 p.m. Dr. Bharat Wagh P.W. 36 medically examined Prakash Patil, he found on his person an injury which according to the prosecution was caused as a result of the impact of the butt-end of the gun while he was repeatedly firing from the same during the course of the incident.
In respect of this circumstance, we have the evidence of Dr. Wagh P.W. 36. His evidence shows that on 29.10.1996 at 6.25 p.m. he medically examined appellant Prakash Patil and found on his person the following injuries :-
"(1) Superficial abrasion with formation of scab with dark colouration over right superior surface of shoulder 1 1/2 inch medial to acromlon prominence one inch in length and the direction was obliquely downward on right side."
In his substantive evidence, Dr. Wagh stated that the duration of the said injury was more than two to three days; it was simple in nature; and was attributable to a hard and blunt object. It is from this evidence of Dr. Wagh that the prosecution wants us to infer that the said injury was suffered by the appellant - Prakash Patil when he was repeatedly firing from the gun during the course of the incident.
It is pertinent to mention that in the statement under section 313 of the Cr.P.C. of appellant Prakash Patil this injury was put to him, as question Nos. 54, 55 and 56 and his answer to the said questions was it is false. Neither in his statement under section 313 of the Cr.P.C. nor in his written statement did he furnish any explanation as to how he sustained it. Since Dr. Wagh stated that the said injury was attributable to a hard and blunt object and it is common knowledge that the butt-end of a gun is a hard and blunt object and the injury is located near that part of right shoulder where the gun is held at the time of firing and there is no explanation by the appellant as to how he suffered it, we are inclined to accept the contention of the prosecution that it was sustained by the appellant - Prakash Patil as a result of the impact of the gun resulting from the appellant repeatedly firing the same.
35. Mr. Gupte urged that since this injury was found over right superior surface of shoulder 1 1/2" medial to acromion prominence, which region is at the back of right shoulder, the said injury could not have been caused in the manner alleged by the prosecution.
Mr. Gupte produced before us Roper's Medical Dictionary 12th Edition wherein superior has been described as upper of the two parts.
Mr. Gupte also showed us the Mosby's Medical Dictionary and a picture of the posterior view of a skeleton contained in it to bring home his point. The latter shows that acromion prominence is almost adjacent to the joint of right upper arm and right shoulder.
We have considered Mr. Gupte's submission and regret to observe that we do not find any merit in it. It is common knowledge that there is reflex action at the time of firing of the gun and it appears that as a result of that action, the butt-end of the gun moved a little upwards and struck the right superior surface of shoulder 1 1/2 inch to acromion prominence on which part the above injury was found. We feel that this injury could have been caused in the manner alleged by the prosecution.
We cannot refrain from repeating that appellant Prakash Patil has furnished no explanation as to how he had sustained it. In our view, this circumstance has also been proved by the prosecution.
36. We now come to the circumstance that on 25.10.1996 at 5 a.m. the appellant - Prakash Patil left in the taxi of Uttam Thethe P.W. 15 who identified him at the test parade held on 22.10.1996.
This circumstance has been proved by two witnesses : Uttam Thethe P.W. 15 and Radhakrishna Deshpande P.W. 24 - the Executive Magistrate and Tahsildar. Malegaon.
The evidence of Uttam Thethe shows that he carries bundles of newspapers from Nasik to Malegaon. He starts from Nasik at 2.30 a.m. and reaches Malegaon at 4.45 a.m.- 5 a.m. and after handing over the bundles of newspapers at Malegaon S.T. stand, takes some passengers, to cover up his expenses for tea and miscellaneous expenses, and goes to Nasik.
His evidence shows that a Police Officer had told him that on 25.10.1996 he had taken some persons connected with the offence of murder by his jeep to which he replied that he could only identify them if they were shown to him. His evidence further shows that on 22.11.1996. he was called at the test parade and the Magistrate asked him whether he could identify any person who had travelled in his jeep on 25.10.1996 and in the second parade he identified the appellant - Prakash Patil. (in the first parade he had identified the appellant - Sandip Patil) The evidence of Radhakrishna Deshpande P.W. 24 who was the Tahsildar. Malegaon from 3.8.1996 to 31.7.1997 shows that on 22.11.1996 he conducted the identification parade of the appellants - Prakash Patil and Sandip Patil and before conducting the same, he ensured that similar dummies were mixed. In para 11, he has categorically stated that in the parade of the appellant - Prakash Patil he mixed six persons of similar age and similar appearance and in para 10 that in that of appellant Sandeep Patil eight such persons. His evidence also shows that Uttam Thethe P.W. 15 who was the solitary witness called at the test parade identified both Prakash Patil and Sandip Patil. The former in the second parade and the latter in the first parade.
It is pertinent to mention that in his examination-in-chief also, he identified the appellants - Prakash Patil and Sandip Patil as the persons whom he had identified at the test parade.
37. Mr. Gupte, learned counsel for the appellants strenuously urged that no weightage can be given to the identification of the appellants -Prakash Patil and Sandip Patil by this witness because, the said appellants were shown to him prior to the test parade. We regret that it would not be possible for us to accept this contention because, in the cross-examination no such suggestion has been made to this witness.
Mr. Gupte also urged that the statement of Uttam Thethe that he had been interrogated under section 161 of the Cr.P.C. on 18.11.1996 does not merit our acceptance because, in the application dated 13.11.1996 (Exhibit 191) made by P. I. Malegaon to the Taluka Magistrate, Malegaon, for holding of the test identification of the appellants, it has been categorically mentioned that both the appellants had travelled in the taxi of Uttam Tethe and a test parade wherein Uttam Tethe should be sent to identify them should be held at the earliest.
Mr. Gupte urged that the mention of Uttam Tethe's name in the said application shows that he had been interrogated either on 13.11.1996 or prior to it.
We have reflected over Mr. Gupte's submission. It is true that evidence of P. I. More shows that he interrogated Uttam Tethe on 18.11.1996. In our view, it appears that he had interrogated him either on 13.11.1996 or some date prior to it and on account of confusion or lapse of memory instead that he interrogated him on 18.11.1996.
We feel it pertinent to mention that had he been interrogated on 18.11.1996, then there was no question of his name being mentioned in the application dated 13.11.1996.
At any rate, we fail to see how mention of Uttam Tethe's name in the said application would be destructive to his identification evidence because, as mentioned earlier, defence suggestion that the appellants were shown to him prior to the test identification has not been put to him during cross-examination.
Hence, this circumstance is established.
In our view, the identification of the appellant - Prakash Patil by Uttam Tethe is a incriminating circumstance against him.
38. We now come to the last circumstance against the appellant -Prakash Patil namely the confession of his son co-accused Sandip Patil which incriminates him.
It is true that the appellant - Sandip Patil is a co-accused but, in view of the provisions contained in section 30 of the Indian Evidence Act. which provide that :
"Consideration of proved confession affecting person making it and others jointly under trial for same offence:- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may taken into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation : 'Offence' as used in this section, includes the abetment of, or attempt to commit the offence."
The said confession can be taken into consideration against the appellant - Prakash Patil.
We are mindful of the fact that in view of the observations contained in para 9 of the decision of the Judicial Committee of the Privy Council rendered in Bhuboni Sahu; v. The King, the said confession would only be one element in the consideration of all the facts proved in the case; it can be put into scale and weighed with other evidence and can only be used in support of other evidence and cannot be made a foundation of a conviction.
We are aware of the fact that the said decision of the Judicial Committee was followed in Koshmira Singh v. State of Madhya Pradesh, and in subsequent decision till date.
We are equally aware of the fact that a confession can only be acted upon if it inculpates the maker and it has to be read as a whole (See Pakhla Narayan Swamy v. The Emperor, and Palvinder Kaur. v. The State of Punjab, (paras 16 and 17.) A perusal of para 16 of Palvinder Kaur's case shows that the Supreme Court approved the ratio laid down in Pakhla Swamy's case, and held that the Court cannot accept a confession if it exculpates the maker. In the said decision it held that before a confession is accepted, it should also inculpate the maker.
In the said case the High Court had accepted the inculpatory part but, rejected the exculpatory part. In para 17 the Supreme Court castigated the approach of the High Court and observed thus :-
"The Court thus accepted the inculpatory part of that statement and rejected the exculpatory part. In doing so, it contravened the well-accepted rule regarding the use of confession and admission that this must either be accepted as a whole or rejected as a whole and that the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible."
Bearing in mind the said position in law, we propose to examine the said confessional statement.
39. In the earlier part of our Judgment, in para 15, we have extracted the English translation of the relevant part of the confessional statement.
Its perusal shows that on 8.11.1996, the appellant - Sandip Patil made an application before the J.M.F.C.. Malegaon, Sudhakar Yarlagadda P.W. 19 that he was the only person who knew how the murders were committed and would like to make a statement as early as possible because, he had his engineering first year examination on 14.11.1996 and wanted to appear in it.
On the said application, the Magistrate made an order remanding the appellant - Sandip Patil to police custody till 9.11.1996. On 9.11.1996, the appellant - Sandip Patil was produced before the Magistrate. He passed an order in writing and informed Sandip Patil that it was not in his purview to permit him to appear in the examination but, insplte of that the appellant - Sandip Patil requested that his statement be recorded. On 9.11.1996, the Magistrate passed another order wherein it is mentioned that he explained to Sandlp Patil that he was not bound to make the statement and cautioned him that in case he made the same, it could be used in evidence against him.
We have also seen that the order mentioned that Sandip should think over before making the statement and he should be produced after 24 hours. Sandlp Patil was produced before the Magistrate on 10.11.1996, on which date also the Magistrate gave him a warning that he was not enjoined in law to make it and if he made it, it could be used in evidence against him and his father.
The J.M.F.C. ascertained from Sandip Patil whether he was making the statement voluntarily or as a result of coercion or duress of the police and Sandlp replied that he was making it voluntary and not as a result of pressure of police.
Again to give Sandip time to reflect, the Magistrate called Sandip next day i.e. 11.11.1996 and on 11.11.1996 he again told him that he had been given time to reflect and re-consider whether he wanted to make the statement to which Sandip Patil replied that he had been given sufficient time. Again, he told Sandip Patil that it was not binding on him to make the statement and in case he made the same, then it could be used in evidence against him to which Sandlp Patil replied in the affirmative. He also told him that in case he failed to give the statement, he would not be lodged in police custody to which Sandip Patil replied in the affirmative.
A perusal of the confessional statement of appellant - Sandip Patil, would show that it was voluntary: not the result of any duress or coercion of the police; the J.M.F.C. had warned him that in case he made it, it could be used in evidence against him; he recorded it after he had given sufficient time to Sandip Patil to reflect whether he wanted to make it; and had also told him that in case he did not make it, he would not be sent to police custody. It would also show that the J.M.F.C. repeatedly had told Sandip Patil that he could not give him permission to appear in the examination.
A perusal of Sandip Patil's statement would show that it is also inculpatory. Earlier, in para 15, we have set out its English translation. In the said statement, he clearly and categorically mentioned that he threw the articles in the bag. namely the blood stained T-shirts, handkerchief, gloves, pair of white slippers and six empty cartridges from Mhatre Bridge, Pune and had shown the police the place from where he had thrown them and the police had seized them.
In our view, read as a whole, as it should be read in law, (See the said confession does not inculpate appellant -Sandip Patil for the offence of murder but, it clearly inculpates him for the offence under section 201 of the I.P.C.
Since it inculpates him for the said offence, it can be read against his father-the appellant Prakash Patil. Having gone through the confessional statement of the appellant - Sandip Patil, we find the recitals contained therein to be truthful and in tune with probabilities.
It is pertinent to mention that the manner of murders given out in the confession is firing. As per the confession, Sandip Patil actually saw the appellant - Prakash Patil making the fires.
It should be borne in mind that the said manner is corroborated by the evidence of the Autopsy Surgeon Dr. Wagh who found on the corpse of each of the deceased persons fire-arm injuries. It is pertinent to mention that the empties which were thrown by Sandip Patil from Mhatre Bridge and which were recovered on his pointing out were sent to the Ballistic Expert and he found that they were fired from the same gun which was seized from the place of the incident and which according to Sandip Patil was fired by his father.
It is also pertinent to mention that according to the confession, Sandip Patil's father Prakash Patil kept the belt of the cartridges in the cupboard and the investigating Officer recovered it therefrom. AH this shows that the said confession is truthful.
40. Mr. Gupte learned counsel for the appellants strenuously urged that since the said statement does not substantially inculpate Sandip Patil, to same extent as it inculpates the appellant - Prakash Patil, it cannot be used in evidence against the latter.
To lend force to his submission, Mr. Gupte placed reliance on para 14 of the decision of the Supreme Court in Balbir Singh v. State of Punjab, wherein the said ratio has been laid down.
We have considered the said submission of Mr. Gupte and we regret that it would be possible for us to accept it.
It should be borne in mind that every decision has to be read in the light of its peculiar facts and the facts of no two cases are similar.
It should also be borne in mind that the said ratio was in the background of the facts of the said case. In our view it has prompted by the normal experience that there is a tendency on the part of the co-accused to shift all the blame and burden on another co-accused. However, the facts of this case are unique. Here the co-accused whose confession is being castigated is the own son of the appellant - Prakash Patil.
It is common knowledge that no son and especially one like Sandip Patil who was literate, studying in engineering first year and was expected to be aware of the fact that his father could be sent to the gallows, would not throw the entire blame on his father.
Hence, the usual yardstick which is applied for deciding what weight should be attached to a confession, made by a co-accused against another co-accused, would not be applicable in the instant case.
41. We wish to make it clear that although section 30 of the Indian Evidence Act provides that a confession of a co-accused can be taken into consideration against another co-accused but, there is no uniform scale on the basis of which all such confessions are to be weighed. In the ultimate analysis, the weight to be attached to it would depend on the probability of the story contained in it and the relation of the person making it vis-a-vis the co-accused against whom it is made, where a confession is made by a son against a father, as is the case here, and the story contained therein is probable, as is also the case here, far higher weightage would be given to it than the usual confession made by a co-accused against another.
But, we hasten to add that we should not be understood to mean that an accused can be primarily convicted on the basis of a confession made by a co-accused.
We wish to make it clear that the question of his conviction would always depend on the fact whether evidence inspires confidence and the confession would only be used for lending assurance to it.
42. Mr. Gupte also urged that this confession was not voluntary and was the result of undue influence and coercion by the police. He urged that the Magistrate should not have remanded Sandip Patil to police custody on 8.11.1996.
We have reflected over Mr. Gupte's submission and do not find any merit in it.
It is true that on 8.11.1996 Sandip Patil was remanded to police custody till 9.11.1996 but, his confession was recorded on 11.11.1996 and in between 9.11.1996 and 11.11.1996. he was in judicial custody. In other words. Sandip Patil was in judicial custody for 48 hours before he made the confession.
It should also be remembered that he had been explained repeatedly by the Magistrate that he could not grant him permission to appear in the examination of first year engineering; that he was not bound in law to make it: that in case he made it, it could be used in evidence against him and his father; and in case he did not make it, he would not be remanded to police custody.
It is pertinent to mention that the Magistrate had also enquired whether he was making the confession as a result of torture or coercion by the police and Sandip Patil had replied in the negative.
For the said reasons, we do not find any merit in the submission of Mr. Gupte.
In our view, the said confessional statement also proves the guilt of appellant Prakash Patil.
43. We feel it pertinent to mention here that even if the confession is excluded, the other circumstances, to which we have referred to earlier, conclusively establish that the appellant - Prakash Patil had committed the crime.
We make no bones in observing that we are not impressed with Mr. Gupte's submission that the learned Trial Judge erred in rejecting the evidence of Vidya Prakash Khairnar (Patil) D.W. 1, wife of the appellant -Prakash Patil, whose evidence in his contention, shows that the appellant could not have participated in the incident and could not have caught the taxi of Uttam Thethe P.W. 15 at 5 a.m. on 25.10.1996, as alleged by the prosecution.
It is true that Vidya Khairnar D.W. 1 in her statement stated that on the night of 24th/25th October, 1996 till about 12.30 a.m. the appellant - Prakash Patil taught his daughters at their residence in Nasik. It is also true that her evidence shows that when as usual, she got up at 5 a.m. (on the morning of 25.10.1996) she found the appellant-Prakash Patil asleep. There is no dispute that if we believe the latter claim of hers, the appellant - Prakash Patil on 25.10.1996 at 5 a.m. could not have come from Malegaon to Naslk on Uttam Thethe's taxi, as alleged by the prosecution.
However, we have no reservations in rejecting her evidence. In view of the circumstance that she being the wife of the appellant Prakash Patil, was an extremely interested witness her evidence has to be examined with extreme caution. And once we do this, for reasons stated hereinafter, we have to reject it.
In this connection, it is pertinent to mention here that in cross-examination (para 12) she admitted that she had not told the story furnished by her in her examination-in-chief either to the police or any authority earlier. After this admission of hers, the prosecution questioned her in terms that since the facts narrated by her had nevrer occurred, she did not inform anybody to which she replied in the negative.
We have reflected over her statement and in our view, if on the night of 24th/25th October, 1996, the appellant - Prakash Patil had taught the daughters till 12.30 a.m. and if on the morning of 25.10.1996 at 5 a.m. she had found him asleep, she would not have maintained an omnious silence till 7.4.2000. the date when she was examined in the Trial Court.
The circumstance that she is coming out with this version for the first time more than three years after the incident shows that it is devoid of substance.
We may also mention that the evidence of D.W. 2 Nishikant Bhalerao also does not help the appellants. He stated that the reports published in Deshdut of which he was the editor, were sent by the Malegaon correspondent Brij Mohan Shukla and the latter has not been examined by all.
44. For the said reasons, we feel that the prosecution has squarely established the involvement of the appellant Prakash Patil in the crime.
45. We now take up the circumstantial evidence against the appellant - Sandip Patil.
From the evidence on record, it appears that the prosecution has adduced the following circumstances against him :-
(a) motive;
(b) last seen;
(c) recovery of a chit written by him from the lock fixed on the door of Supadu Patil's house on the morning of 25.10.1996;
(d) presence of injuries on his person when he was medically examined on 28.10.1996 at 2.15 p.m;
(e) recovery of a suit case containing blood stained clothes and some other articles on his pointing out from Room No. 120 of M.I.T. Hostel Pune, on 29.10.96, wherein he used to live at the time of the incident;
(f) recovery of a T-shirt, pair of slippers and handkerchief on his pointing out from near Mhatre Bridge, Pune, on 30.10.1996;
(g) recovery of six empties on his pointing out from near Mhatre Bridge, Pune on 8.11.1996;
(h) leaving Malegaon on 25.10.1996 at about 5 a.m. in the taxi of Uttam Thethe P.W. 15 and being identified by the said witness at the test parade on 22.11.1996; and
(i) confession made by him under section 164 of the Cr.P.C. on 11.11.1996 before by the J.M.F.C.. Malegaon.
46. We begin with motive.
In relation to co-accused Prakash Patil, we have seen that the prosecution had examined two witnesses namely Vyankat Pagare P.W. 33, and Raosaheb Patil P.W. 34 to prove it. We have accepted their evidence vis-a-vis Prakash Patil. However, in our view this circumstance has not been proved against the appellant - Sandip Patil.
On the first blush, our conclusion may seem to be irrational and illogical because, in the normal course, if a father had a motive to commit the crime, then it would be presumed that a son also had the motive. However, the evidence of Vyankat Pagare P.W. 33 and Raosaheb Patil P.W. 34 shows that although the father had the motive to commit the crime but the son, appellant Sandip Patil, did not have it.
We have referred to their evidence in relation to Prakash Patil earlier and we do not want to over burden our Judgment by reiterating it, It is pertinent to mention that neither Vyankat Pagare nor Raosaheb Patil deposed to any motive vis-a-vis the appellant - Sandip Patil. On the converse, Vyankat Pagare P-W. 33 in para 22 has admitted that the appellant - Sandip Patil used to visit his master on occasions and in his cross-examination (in para 14) has admitted that "it is true that Supadu Patil was treating Sandip Patil as if he was his son. as well as Poonam, Rupali and Rakesh as their brother."
It is pertinent to mention that the appellant Sandip Patil in his written statement also stated that he had excellent relations with Supadu Patil and his family members and had gone to Soyagaon since there was birthday of Supadu Paul's son Rakesh on 24.10.1996.
It is also pertinent to mention that Vidya Prakash Khairnar D.W. 1, the mother of the appellant - Sandip Patil, also stated that Sandip Patil had been invited to Rakesh's birthday and hence had gone to Soyagaon on 23.10.1996.
In such a state of evidence, in our view the prosecution has failed to establish that the appellant - Sandip Patil had any motive to commit the crime.
Hence, this circumstance is not proved.
47. We now take up the circumstance of last seen.
The evidence of Vyankat Pagare P.W. 33 shows that at 9 p.m. on 24.10.1996, he saw the appellant - Sandip Patil and the six deceased persons in the house of Supadu patil and in the morning of 25.10.1996 he saw the corpses of the deceased persons but, Sandip was not present there. In our view, this circumstance would not incriminate the appellant because on the night of 24.10.1996, there was birthday of the deceased Rakesh to which he had been invited. Hence, in the circumstances it was natural for him to have been present in the house of Supadu Patil at 9 p.m. on the night of 24.10.1996.
As regards his absence in the morning, the same has been explained by him in his confessional statement to which we would come later and which in our view, would incriminate him for the offence under section 201 of the I.P.C.
48. We now take up the circumstance of recovery of chit written by the appellant - Sandip Patil from the lock fixed on the door of the house of Sandip Patil on the morning of 25.10.1996. In respect of this circumstance, we have the evidence of Vyankat Pagare P.W. 33. Ashokanna P.W. 1 and P. I. More P.W. 42.
In our view, this circumstance has not been established for the reasons enumerated hereinafter :-
(a) the panchanama of the seizure of the chit was prepared on 25.10.1996 between 11.55 a.m. and 12.35 noon but surprisingly enough in the F.I.R., which as per the evidence of P. I. More was recorded by him on the same day between 9.30 or 9.45 a.m. on the narration of the informant Ashok Bachav, there is a mention of the contents of the chit.
It is pertinent to mention that P. I. More has categorically stated that Ashok Bachav had handed over the chit to him at 11.45 a.m.
(b) A perusal of the recovery panchanama of the chit shows that it was signed by the informant Ashok Bachav but the chit produced does not bear his signature.
(c) According to the informant Ashok Bachav, he had handed over the chit to P.S.I. Shaikh and if this was so, then P.S.I. Shaikh should have handed over the chit to P. I. More and not him. There is no evidence that P.S.I. Shaikh handed back the chit to Ashok Bachav.
(d) Vyankat Pagare P.W. 33 in his examination-in-chief says that it was Suresh who had informed him that there was a chit on the door of the bungalow which he found when he went to get a bucket for milking the buffaloes and Suresh handed over the chit to him but, in his cross-examination (para 13) he stated that whiie he and Suresh were talking, a resident of the bungalow beyond the field came and informed him that a chit was attached to the grill door of the bungalow.
For the said reasons, we are not inclined to give a clean chit to this circumstance.
Mr. Mhaispurkar, learned Additional Public Prosecutor for the respondent strenuously contended that since the said chit was sent to the Handwriting Expert Vishwas Razangaonkar P.W. 39 and his evidence shows that the hand-writing on it resembled the specimen hand writing of the appellant - Sandip Patil, this circumstance incriminates him.
We regret we do not find any merit in this contention because, in our view, not only the factum of its recovery is doubtful but, the chit recovered according to the recovery panchanama of the chit contained the signatures of the informant Ashok Bachav but. that which was sent to the hand-writing Expert did not contain his signatures.
In the circumstances, this circumstance is not proved.
49. We now take up the circumstance that when the appellant - Sandip Patil was medically examined on 28-10-1996 at 2.15 p.m. by Dr. Bharat Wagh P.W. 36, some injuries were found on his person. We have earlier enumerated those injuries.
Let us have a second look at them.
They are :
"1. Abrasion with formation of scab over face on right side just below lower eye lid 1/4th x 1/4th cm. and was transversely placed.
2. There was scratch mark with formation of scab over nose on left side just near to the angle of left eye 1/2 on in length with direction obliquely and directed downward.
3. Scratch mark over nose 1/2 cm. below injury No. 2 and 1/4th cm. in length".
4. Scratch mark over left forearm on posterior lateral side on left wrist 1/4 cm. in length with formation of scab.
5. Abrasion with scab formation over right lower line 2 inch below knee over anterior surface 1 cm. x 1 cm.
6. Linear scratch mark with formation of scab over right supra clavical region over neck obliquely and vertically placed 1/2 cm. in length."
In our view, these injuries have been explained by the appellant -Sandip Patil. In his confessional statement, to which we would refer to in detail while considering the circumstances that he made a confession, he has categorically stated that during the course of the incident, the deceased Poonam came running from the bed room and he received a scratch from the marks of her nails on the nose.
It is pertinent to mention that injury Nos. 2 and 3 comprise of scratch marks on nose. The appellant Sandip Patil has also explained other injuries in his confessional statement. He stated that when he got down from the auto rickshaw at the M.I.T. Hostel, Pune, the rickshaw driver demanded Rs. 35/- and as per the meter, the fare was coming to Rs. 20/- only. When he was getting down from the rickshaw and was giving money to him, the rickshaw driver caught hold of his hand and pulled him resulting in his sustaining injury at the portion below the right eye.
Since the Supreme Court in para 17 of the decision (supra) has observed that a confession has to be accepted or rejected as a whole and we are accepting it, the said explanation has to be accepted. Other injuries suffered by the appellant Sandip Patil are inconsequential and hence, this circumstance is not incriminating.
50. We now take up the circumstance of recovery of the suit-case containing blood stained clothes and some other articles on the pointing out of the appellant Sandip Patil from Room No. 120, M.I.T. Hostel, Pune, on 29.10.1996 wherein he used to live at the time of the incident.
To prove this circumstance, the prosecution examined the S.D.P.O. Sudhakar Trambake P.W. 37 and Sanjay Salunkhe P.W. 17. The evidence of S.D.P.O. Trambake P.W. 37 is that on 29.10.1996. during the course of interrogation, the appellant - Sandip Patil agreed to produce the clothes which he was wearing at the time of commission of crime and other articles which he had taken from the victim's house and concealed in Room No. 120 in M.I.T. Hostel, Pune. Consequently, he sent for two public panchas, one out of whom Sanjay Salunkhe has been examined as P.W. 17. In their presence, he recorded the said willingness of the appellant - Sandip Patil under a panchanama. Thereafter, he along with the panchas, Sandip Palil and the police personnel proceeded on a jeep to Room No. 120, of M.I.T. Hostel, Pune. He sought the permission of the rector of the hostel Sharad Kulkarni P.W. 16 to search Sandip Patil's room. The said permission was given. In the presence of S.D.P.O. Trambake, the public panchas and the rector, Sandip Patil opened the lock of his room and from a blood stained suit case produced his blood stained shirt, in the pocket of which were three tickets of S. T. bus and the blood stained jeans. From the cupboard, he produced a blood stained muffler, on which there was long hair. He also produced a torch and a blood stained school bag and currency to the tune of Rs. 7.00/-. The said articles were seized under a panchnama.
We have gone through the evidence of S.D.P.O, Trambake, Sanjay Salunkhe and Sharad Kulkarni. Although they were cross-examined but, their evidence in respect of the said recoveries could not be discredited.
It is pertinent to mention that all three of them had no rancour or illwill against the appellant Sandip Patil. There is nothing to indicate that Sanjay Salunkhe was a stock panch.
It is pertinent to mention that the said articles were sent to the Chemical Analyst who found human blood on the suit case and blood of 'O' group on the jeans.
It is true that the blood group of the appellant Sandip Patil is also 'O' and that of the deceased persons, other than Kesarbal is also 'O' but, the appellant Sandip Patil has furnished no explanation as to how blood of 'O' group was found on his jeans.
It is pertinent to mention that the Supreme Court in the decision of Surendra @ Khujji v. State of Madhya Pradesh, in para 10, has held that presence of human blood on an article is an incriminating circumstance.
51. Mr. Gupte learned counsel for the appellants strenuously urged that this circumstance should not be believed because, had the said suitcase been there inside the room, it would have been seized by the police on 27.10.1996, on which date, it recovered a chit from the said room. We regret that we cannot accept his said contention.
It is pertinent to point that the evidence of P. I. More P.W. 42 shows that the appellant - Sandip Patil was arrested by him on 28.10.1996. On 27.10.1996, he was merely a suspect and had been taken to his room only with the limited object of recovering a chit which he is alleged to have written to the deceased Poonam to ascertain whether the handwriting in that chit was the same as that in the chit found in the pocket of the pant of the deceased Supadu Patil.
For the said reasons, in our view, this circumstance is established.
52. We now come to the recovery of T-shirt, pair of slippers and a handkerchief recovered on the pointing out of the appellant Sandip Patil from near Mhatre Bridge Pune, on 30.10.1996.
In respect of this circumstances, we have the evidence of S.D.P.O Trambake and public panch Sanjay Salunkhe P.W. 17. The evidence of S.D.P.O Trambake shows that on 30.10.1996 at 10 a.m. in the presence of public panch Sanjay Salunkhe and second panch, the appellant - Sandip Patil, confessed that after commission of the crime, he had collected the T-shirt a pair of slippers and a handkerchief from the victim's house and had thrown it near Mhatre Bridge, Pune, and could have them recovered. Consequently. S.D.P.O. Trambake P.W. 37 recorded his said willingness in a panchanama.
Thereafter, Trambake, the public panchas and Sandip Patil proceeded for Mhatre Bridge where from the grass of the height of three to four feet, the appellant Sandip Patil took out a blood stained T-shirt and from nearby two slippers and a plastic carry bag wherein was a white coloured handkerchief containing blood stains. The said articles were recovered under a panchnama.
We have gone through the evidence of S.D.P.O. Trambake and Sanjay Salunkhe and we find it creditworthy. Although they were cross-examined, they could not be discredited in respect of these recoveries. As we have mentioned earlier, they had no rancour or illwill against the appellant -Sandip Patil. In our view, in the absence of the same, they would not have foisted false recoveries on him.
53. Mr. Gupte, learned counsel for the appellants strenuously urged that we should not believe this recovery because the same was effected from a open place. We regret that we do not find any merit in his submission.
As we have seen earlier, the recovery was effected from the grass which was of the height of three to four feet. In our view, the said place cannot be described as a open place.
54. We wish to emphasis that recoveries from a place which is open would not simplicitor vitiate it. It would be vitiated if the place from which it is effected is accessible and visible to others. Even if the recovery is made from a open place, but the article recovered is not visible to others, the said recovery would not be vitiated on account of having been made from a open place. It is only when the object sought to be recovered is visible in the open place from which it is recovered, would the recovery stand vitiated.
We are fortified in our view by the observations contained in para 26 of the decision of the Supreme Court in State of Himachal Pradesh v. Jeet Singh, which read thus :-
"There is nothing in section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that wh'en recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
In our view, the said circumstance stands proved.
55. We now come to the circumstance of recovery of six empties on the pointing out of the appellant - Sandip Patil from near the Mhatre Bridge, Pune on 8.11.1996.
In respect of this circumstance, we have the evidence of P. I. More P.W. 42 and public panch Tanaji Ajabe P.W. 18. The evidence of P. I. More shows that on 7.4.1996, during the course of interrogation, the appellant - Sandtp Patil confessed that he could have the empties of cartridges used in the crime which he had thrown after keeping them in a plastic bag from the Mhatre bridge, recovered. Consequently. P. I. More sent for public panchas, out of whom one Tanaji AJabe has been examined as P.W. 18. He recorded the willingness of the appellant - Sandip Patil in their presence. Thereafter on 8.11.1996 the appellant Sandip Patil, in the presence of P. I. More and the public panchas, took out six empties which were inside a plastic bag from a grassy area near the Mhatre Bridge.
The said recovery was effected under a panchnama.
56. Mr. Gupte learned counsel for the appellants strenuously urged that this recovery evidence does not inspire any confidence for a number of reasons :
He firstly urged that the place of this recovery is almost the same from where the articles on the pointing out of the appellant - Sandip Patil were recovered on 30.10.1996. He contended that had these six empties been lying there they would have been recovered on that very date.
Secondly, Mr. Gupte urged that the evidence of the public panch cannot be relied for two reasons :-
(a) In his cross-examination (in para 5) he admitted that the police gave information to him that he had to act as a panch at his residential house which was eight kms. from Chavani Police Station; and
(b) He was driving the jeep of one Raj Jagtap who was married after he had joined his service and had got printed on the marriage invitation card, name of P. I. More as the person who was inviting the guests to attend the marriage.
We have considered the criticisms canvassed by Mr. Gupte. So far as the first criticism is concerned, it should be borne in mind that often it is to be seen that accused persons give information to the police in piece-meal. In our view, it is not surprising that in the interrogation of the appellant- Sandip Patil, which led to the recovery on his pointing out on 30.10.1996, the appellant - Sandip Patil did not disclose that he had thrown the six empties and since he made the said disclosure on 7.11.1996 the said empties were recovered on 8.11.1996.
For this reason, we do not accept Mr. Gupte's submission.
So far as Mr. Gupte's second criticism is concerned, we make no bones in observing that we feel unhappy that P. I. More chose a person as a panch who resided eight kms. from the police station and that too. whose master was close to P. I. More.
However, in our view, even if the evidence of the public panch Tanaji Ajabe is excluded from consideration we have the credible evidence of P. I. More. We may mention that although he was cross-examined but, his evidence in respect of the said recovery could not be shaken.
Consequently, we accept his claim and believe this circumstance.
It is pertinent to mention that these six empties were sent to the Ballistic Expert Arutla Malleshwarrao P.W. 41 whose evidence shows that they were fired from the gun recovered from the place of the incident (alleged to have been used in the incident) which was also sent to him.
57. We next take up the circumstance of the appellant - Sandip Patil leaving Malegaon on 25.10.1996 at 5 a.m. in the taxi of Uttam Thethe P.W. 15 who identified him at the test parade on 27.11.1996.
While dealing with the case of the appellant - Prakash Patil, we have already furnished our reasons in paras 36 and 37 for accepting this circumstance.
58. We now come to the main circumstance against this appellant namely his confessional statement recorded under section 164 of the Cr.P.C. on 11.11.1996 by the J.M.F.C, Malegaon Radhakrishna Deshpande P.W. 24. Earlier, in para 15, we have reproduced the official English translation of the relevant part of the said confession and the querries which were in the mind of the appellant - Sandip Patil. We have also dealt with the confessional statement while dealing with the case of the appellant - Prakash Patil.
As we have observed earlier, a confessional statement can only be accepted if it inculpates the maker and has to be read as a whole. The Court cannot read only the inculpatory part and ignore the exculpatory part (See referred to earlier).
59. We have also seen that the said confessional statement clearly inculpates the appellant - Sandip Patil for the offence under section 201 of the I.P.C.. Its perusal shows that the evidence of the articles pertaining to the crime, like the empties, clothes etc. was sought to be destroyed by him by his throwing them from Mhatre Bridge.
In our view, the said confession clearly exculpates him of the offence of murder and since it has to be accepted as a whole, we feel that the offence under section 201 of the I.P.C. would only be made against him.
60. Mr. Shirish Gupte learned counsel for the appellants made two principal submissions with regard to this confession.
He firstly urged that since this confession does not substantially inculpate the appellant - Sandip Patil to the same extent it cannot be read-in-evidence against him. He contended that it is not a confession. He secondly urged that it does not even make out an offence under section 201 of the I.P.C. against appellant Sandip Patil.
The first submission was also made by Mr. Gupte in relation to appellant Prakash Patil and we have rejected it for the reasons contained in paras 41 and 42. For the reasons contained in the said paragraphs, we reject it.
61. We now come to Mr. Gupte's second submission that even an offence under section 201 of the I.P.C. would not be made out against the appellant - Sandip Patil.
Mr. Gupte urged that before section 201 of the I.P.C- can be invoked, it has to be established that the primary and sole object of the accused was to screen the offender. He urged that the circumstance that the concealment was likely to have such an affect was not sufficient. Mr. Gupte urged that a perusal of the confessional statement shows that the primary object of appellant - Sandip Patil was not to screen his father, who according to the confessional statement committed the murders, but to get rid of the evidence.
To substantiate his submission, Mr. Gupte invited our attention to para 33 of the Division Bench decision of the Madhya Pradesh High Court in Jamnadas Parashram v. State of M. P., wherein the said ratio) has been laid down.
We have examined the said decision and in our view it does not come to the rescue of the appellant Sandip Patil. When with his own eyes, the appellant - Sandip Patil had seen his father committing multiple murders and when he destroyed the evidence relating to those murders by throwing the articles from Mhatre Bridge on two separate occasions, it is absolutely crystal clear that he did this with the primary object of saving his father.
62. Mr. Mhaispurkar, Additional Public Prosecutor, for the respondent. emphatically urged that our view that the appellant - Sandip Patil would only be culpable for the offence under section 201 of the I.P.C. would not be correct. He urged that the appellant - Sandip Patil along with his father, the appellant - Prakash Patil, has been charged with the aid of section 34 and 120 of the I.P.C. He urged that there was a specific charge of conspiracy to commit the murders of the deceased persons (charge thirdly) and in view of the provisions contained in section 10 of the Indian Evidence Act, the appellant - Sandip Patil would equally be liable for the offence under section 302 r/w 120 of the I.P.C..
In order to show that there was conspiracy between the appellant -Sandip Patil and his father, the appellant Prakash Patil, to commit the murders of Supadu Patil and his family members, Mr. Mhaispurkar drew our attention to the following circumstances :-
(a) Motive;
(b) at about 2.30 a.m. on the night of the incident on the call of the appellant - Prakash Patil, Sandip Patil opened the door of Supadu Patll's house:
(c) he thereafter locked the door;
(d) while the appellant Prakash Palil was firing indiscriminately and killing the family members of Supadu Patil. he did not stop him;
(e) he wrote the chit to mislead people: and
(f) he left along with his father after the murders had been committed.
63. We have considered the submission of Mr. Mhaispurkar and examined the said circumstances. We regret that on the evidence in this case, it would not be possible for us to conclude that the killings in the instant case were the result of any conspiracy.
We say this not only because in our view, there was no motive for the appellant - Sandip Patil to kill Supadu Patil and his family members; on the converse there were very close relations between him and them but also because these circumstances are not necessarily compatible with the inference that Sandip Patil conspired with his father to commit the multiple murders and there are circumstances in the confessional statement of the appellant - Sandip Patil which show absence of conspiracy.
We now take up individually each of the circumstances from which Mr. Mhaispurkar wants us to infer conspiracy.
We begin with the act of the appellant - Sandip Patil opening the door when his father came. This has to be examined in the light of the fact that in the confessional statement itself, Sandip Patil has stated that his father had promised to come to Malegaon on 24.10.96 in connection with a case and we find that it was natural for Sandip Patil to have opened the door when he came and knocked.
Again, we find nothing abnormal in the act of Sandip Patil in locking the door in the dead of night when his father had come. It was perfectly natural for him to have locked the door rather than left it open.
So far as the circumstance that he did not stop his father killing indiscriminately is concerned, the manner in which the incident took place must have terribly shocked him and made him dumb founded.
It should be remembered that he was only 17 years of age at the time of the incident. In our view, he would have been rendered speechless while seeing the multiple killings of his kith and kin. In such a situation, if he did not stop his father much cannot be read in it.
So far as writing of the chit is concerned, the confessional statement shows that when he asked his father the reason for writing his father shouted and said do as I ask you to do and hence with trembling hands he wrote the chit.
Finally, so far as leaving together along with his father is concerned, a reading of the confessional statement shows that he did it at the behest of his father who after committing the multiple murders, said let us go. He was not in a position to go against his wishes at that juncture.
64. We have also mentioned earlier that there are circumstances in the confessional statement of Sandip Patil which equally show that he could not be a party to the conspiracy to commit the crime.
We have mentioned above that in view of the ratio laid down in (supra) (para 17) a confessional statement has to be accepted as a whole. It is not permissible in law to only accept the inculpatory part and reject the exculpatory part.
In our view, there are a equal number of circumstances, if not more, in the confessional statement of the appellant - Sandip Patil which show that he did not conspire with his father appellant - Prakash Patil to commit multiple murders.
They are :-
(a) when his father asked him whether everyone had gone to sleep, he replied that everybody had gone to sleep, and whether he should wake them up.
Had he conspired to commit the murders, he would not have said whether I should wake them up.
(b) when he removed the curtain resulting in collision with the deceased Poonam and his receiving scratch marks on the nose, he shook her and told her that he was Eabloo. His telling her that he was Babloo in our view, is incompatible with the hypothesis of conspiracy.
(c) he tried to run away thinking that uncle and aunt would wake up and think that he had committed the murders but, could not, as he could not recall where he had kept the keys.
Again this conduct is not compatible with the inference of conspiracy.
(d) during the course of the incident, he started crying in the kitchen sitting besides the table.
This again is not in tune with the conduct of a conspirator.
(e) when his father asked him to write a chit, he asked him the reason and only wrote when he shouted, 'do what I say.' Had it been a case of conspiracy, he would not have asked him the reason for writing the chit.
Apart from these circumstances, the circumstance that Vyankat Pagare P.W. 33 in his statement stated that "It is true that Supadu Patil was treating Sandip Patil as if he was his son as well as Poonam. Rupali and Rakesh as their brothers." and the circumstance that on the fateful night, he was at the place of the incident having been invited to attend the birthday of Rakesh clearly shows that the appellant Sandip Patil who as per his statement recorded under section 313 of the Cr.P.C. was aged about 17 years at the time of the incident, could not have been a party to a conspiracy to commit the multiple murders.
A perusal of the doubts which he had expressed before the Magistrate, which are a part of the confessional statement and the English translation of which has been reproduced by us earlier in para 15 also lead to the same inference.
65. We wish to make it clear that while reaching the above conclusion, we are not obvious to the fact that conspiracy is hatched in secret and hardly it is possible to get direct evidence to prove it. We are also alive to the fact that usually conspiracy is proved through circumstantial evidence. Hence, it should always be remembered that the same principles which apply before the inference of guilt can be drawn in a case resting on circumstantial evidence would be applicable before the evidence in respect of conspiracy can be accepted, and they are that the circumstances should unerringly lead to the inference of guilt and should be wholly incompatible with the inference of innocence.
In the instant case, we have seen that the inculpating circumstances are equally off-set by the exculpating circumstances.
Hence, we reject this submission of Mr. Mhaispurkar.
66. Since in our view, the appellant - Sandip Patil did not share conspiracy to commit six murders, conviction of the appellant - Prakash Dhaval Khairnar (Patil) would have to have to be altered from one under section 302 r/w 120B of the I.P.C. to that under section 302 of the I.P.C. simplicitor.
We are not oblivious to the fact that he has not been charged on the said count but, that in our view would be inconsequential in view of the circumstance that no prejudice would be caused to him as a result of the said conversion.
It is pertinent to mention that the evidence which we have accepted warrants the inference that he committed the said offence.
It is equally pertinent to mention that question Nos. 11 to 38 put to the appellant-Prakash Patil in his statement recorded under section 313 of the Cr.P.C. pertain to the various details contained in the confessional statement of the appellant - Sandip Patil regarding the manner in which the deceased persons were killed by him. The said questions show that he was armed with a gun and he was firing.
In this connection, we feel it pertinent to refer to the provisions contained in sections 215 and 464(1) of the Cr.P.C.
Section 215 of the Cr.P.C. reads thus :-
"Effect of errors : No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice."
Section 464(1) of the Cr.P.C. reads thus :-
"Effect of omission to frame, or absence of, or error in charge: (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby."
A perusal of the said provisions would show that absence to frame a charge and errors in the charge would only be material if prejudice has been caused.
As we said earlier that in the instant case, no prejudice would be caused to the appellant - Prakash Patil for failure to frame a charge under section 302 of the I.P.C..
67. We are fortified in our view by the observations contained in Willte (William) Sidney v. State of Madhya Pradesh.
It would be pertinent to refer to para 36 of the said decision. The Supreme Court therein has observed thus :-
"(36) Sections 222 to 224 deal with the form of a charge and explain what a charge should contain. Section 225 deals with the effect of errors relating to a charge. Sections 233 to 240 deal with the joinder of chapter that deals with irregularities generally and these two sections deal specifically with the charge and make it clear that an omission to frame a charge as well as irregularities, errors and omission in a charge are all irregularities that do not vitiate or invalidate a conviction unless there is prejudice."
68. Since we have not believed that the crime was committed in furtherance of a conspiracy hatched between the appellants and have held that the only offence committed by the appellant - Sandip Patil would be one under section 201 of the I.P.C., the conviction of the appellant - Prakash Patil would have to be altered from one under section 25(1)(b) of the Arms Act r/w 120B of the I.P.C., to one under section 25(1)(b)(a) of the Arms Act.
We may also mention that the conviction of the appellant- Prakash Patil for the offence under section 397 r/w 34 of the I.P.C. would have to be set aside because, there is no evidence that he committed robbery or dacoity and the offence under section 397 of the I.P.C. envisages of the use of a deadly weapon during the commission of robbery or dacoity.
69. This leaves us with two questions :
First is whether the death sentence awarded to the appellant - Prakash Patil should be confirmed.
Second is the quantum of sentence to be awarded to the appellant -Sandip Patil for the offence under section 201 of the I.P.C.
70. We would like to answer the first question first.
In our view, the appellant - Prakash Patil deserves the sentence of death.
His case would fall in the category of "rarest of rare" and warrants the imposition of sentence of death. In a cold-blooded, pre-planned and heartless manner, he committed the murder not only of his brother Supadu Patil and his wife Pushpatai but also of their daughters Buntital and Roopall and son Rakesh and that of his own mother Kesarbai, while all of them were sleeping. Had he only murdered his brother, we could have thought of reducing his sentence to life imprisonment because the evidence shows that his brother was not partitioning the land and giving his share of land to him. We could have taken the view that unable to bear with the unreasonable conduct of his brother any longer he murdered him. But, to repeat he did not stop there. He killed his brother's wife, their three children and above all his own mother, who had given birth to him.
The Supreme Court in para 26 of the decision in Ediga Anamma v. State of Andhra Pradesh, has observed that "the weapons used and the manner of their use, the horrendous features of the crime and the hapless, helpless state of the victim and the like, steal the heart of law for sterner sentence."
In the instant case, as seen earlier, while the six deceased persons were sleeping in their house, he shot them dead. The likes of him do not deserve any sympathy.
It would also be useful to advert to the decision of the Supreme Court in Bachan Singh v. State of Punjab, wherein in para 200, in the context of aggravating circumstances warranting the imposition of death sentence, the Supreme Court observed thus :-
"Aggravating circumstances : A Court may, however in the following casesimpose the penalty of death in its discretion;
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity."
In the instant case, as seen above, the case of appellant Prakash Patil would fall under both (a) and (b) and hence the sentence of death would be the only proper sentence.
The decision of the Supreme Court rendered in the case of Govindasami v. State of Tamil Nadu, also warrants that death sentence of appellant Prakash Patil should be confirmed.
As is manifest from para 20 of the said Judgment. Govindasami had wiped out the entire family of his uncle, except one son who at the time of the incident was studying in Coimbatore. with a view to grab the property and the Supreme Court refused to downgrade his death sentence to life imprisonment.
71. We wish to point that a death sentence can only be converted into one of life imprisonment if the mitigating circumstances outweigh the aggravating ones. Where this is not the case such an exercise would perpetrate injustice and would shake the faith of the common man in the judiciary.
In this conneclion, it would be necessary to refer to the observations contained in Mahesh v. State of M. P. wherein the Supreme Court while refusing to reduce the death sentence to life imprisonment observed thus:-
"It will be mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justiclng system of this country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the deterrence more than the reformative jargon."
72. Mr. Gupte, learned counsel for the appellant Prakash Patil pleaded for life imprisonment on the basis of the decision of the Supreme Court Ronnie alias Ronald James Alwaris and others, v. State of Maharashtra.
He urged that in that case, three persons namely Nittn Anil Swargey (A-1), Ronny Ronald James Alwaris (A-2) and Santu @ Santosh Balkrishna Desai (A-3) were condemned to death for murdering three persons on account of a property dispute.
Mr. Gupte contended that in the said case, the Supreme Court converted the death sentence of the said persons to life imprisonment for reasons stated in para 46 of the said Judgment, He pointed out that the said reasons, as manifest from para 46 were, that A-1 was qualified Engineer and a married person having a son who was aged four years and parents leading a spiritual life for the last 36 years; A-2 because, he was a body builder and had performed a love marriage against volition of his parents and there was nobody to look after his wife; and A-3 because, he had a sick father and was aged 27 years.
Mr. Gupte urged that this case is at par with the said case. He pointed out that the evidence of Vidya Khairnar Patil D.W. 1 the wife of the appellant - Prakash Patil shows that the said appellant is a Scientific Assistant having a wife and three un-married daughters.
We regret that we cannot accede to Mr. Gupte's contention because in the case cited by Mr. Gupte, apart from the considerations mentioned in para 46 of the Judgment, what in our view principally weighed with the Supreme Court has been mentioned by it in para 47 and is as under -.-
"It is not possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a case like this it is not possible to say as to whose case falls within the "rarest of the rare cases", it would serve the ends of justice if the capital punishment is commuted into life imprisonment."
In our view, the said decision is distinguishable because in our case, there is specific evidence that all the six murders were committed by appellant - Prakash Patil.
73. For the said reasons, the appellant Prakash Patil deserves the sentence of death.
74. This leaves us with the second question name the quantum of sentence to be awarded to the appellant Sandip Patil for the offence under section 201 of the I.P.C..
A perusal of his statement recorded under section 313 of the Cr.P.C. would show that he was aged about 17 years at the time of the incident and at that time was studying in Engineering first year at M.I.T., Pune. There is nothing to indicate that he has any adverse antecedents. From the record, it appears that he has been continuously in jail from 28.10.1996 i.e. over four years.
In the over all circumstances, in our view, his sentence for the offence under section 201 of the I.P.C. warrants to bo reduced to the period already undergone by him.
75. IN THE RESULT :
(A) Confirmation Case No. 3 of 2000 is decided as under :-
The reference made by the Additional Sessions Judge, Nasik, for confirmation of the death sentence of Sandip @ Bablu Prakash Khairnar (Patil) is rejected but, that made for the confirmation of death sentence of Prakash Dhaval Khairnar (Patil) is accepted.
(B) Criminal Appeal No. 400 of 2000 is partly allowed.
We acquit the appellants - Prakash Dhaval Khairnar (Patil) and Sandip @ Bablu Prakash Khairnar (Patil) for the offence under section 397 r/w 34 of the I.P.C. and set aside their convictions and sentences thereunder. We direct that in case they have paid the fine, it shall stand refunded to them.
We acquit the appellant - Sandip @ Bablu Prakash Khairnar (Patil) for the offence under section 25(1)(b)(a) of the Arms Act r/w 120B of the I.P.C. and that under section 302 r/w 120B of the I.P.C. We set aside his conviction and sentence thereunder and direct that in case he has paid the fine on the former count it shall stand refunded to him.
However, we maintain the conviction of the appellant - Sandip @ Bablu Prakash Khairnar (Patil) for the offence under section 201 of the I.P.C., but set aside the sentence of fine of Rs. 1000/- and that in its default imposed thereunder and reduce the substantive sentence of seven years R. I. to the period already undergone by him. In case he has paid the fine, it shall stand refunded to him.
We alter the conviction of the appellant Prakash Dhaval Khairnar (Patil) from section 25(1)(b)(a) of the Arms Act r/w section 120B of the I.P.C. to section 25(1)(b)(a) of the Arms Act but, maintain the same sentence.
We also alter the conviction of the appellant Prakash Dhaval Khairnar (Patil) from section 302 r/w section 120B of the I.P.C. to section 302 of the I.P.C. but. maintain the sentence of death.
We, maintain the conviction and sentence of the appellant - Prakash Dhaval Khairnar (Patil) for the offence under section 201 of the I.P.C.
The appellant - Sandip (c) Bablu Prakash Khairnar (Patil) is in Jail and shall be released forthwith unless wanted in some other case.
The appellant - Prakash Dhaval Khsirnar (Patil) is in jail and shall serve out his sentence.
Before parting with the Judgment we would like to put on record the extremely able and competent assistance rendered to us by the learned counsel for the parties in the disposal of this case. The same has made the writing of this Judgment much easier.