Bombay High Court
Janardhan Ragho Mhatre And Others vs The State Of Maharashtra on 4 June, 1996
Equivalent citations: 1996CRILJ4180
Author: Vishnu Sahai
Bench: S.S. Parkar, Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. Vide judgment and order dated 10th July 1981 passed by the Sessions Judge Raigad, in Sessions case Nos. 4 of 1981 and 44 of 1981 the Appellants, were convicted and sentenced in the manner stated hereinafter :
(i) Under Section 302 read with 149, IPC, to life imprisonment :
(ii) Under Section 147, IPC to 3 years R.I. : and
(iii) Under Section 148, IPC, but awarding no separate sentence on that count.
Hence this appeal.
2. Along with the Appellants 12 other person viz. 1) Savalaram Dama Mhatre, 2) Hari Bama Mhatre, 3) Ganpat Joma Mhatre, 4) Mahadeo Balaram Mhatre, 5) Joma Padu Gharat, 6) Padaji Chintu Thakur, 7) Tukaram Dama Mhatre, 8) Tukaram Dama Mhatre, 9)Hari Tukaram Mhatre, 10) Kashinath Tukaram Mhatre, 11) Namdeo Ragho Mhatre, and 12) Ramakant Balkrishna Gharat, were also tried but they have been acquitted by the impugned judgment.
3. The prosecution case in brief as emerging from the recitals contained in the FIR and the statements of the there eye-witnesses relied upon by the learned trial judge viz. Ms. Vithabai Mahadeo Naik, Ms. Anandi Shanker Naik and Ms. Radhabai Sadashiv Khot (the 4th eye-witness Joma Datta Bhoir, P.W. 8 has been disbelieved by the trial Court), runs as follows :
The deceased Shanker Sitaram Naik on one side and the appellants and the acquitted accused on the other were residents of the same village Baman Dongari situated within the limits of Taluka Panvel, Dist. Raigad. It appears from the evidence on record that the said village was a faction ridden one and there was a background of ghastly murders. There were two parties in the village viz. Varchi Ali (upper lane) and Khalchi Ali (lower lane). The members of Khalchi Ali party had political affiliation with Peasant and Workers Party and those of Varchi Ali party, had political affiliation with the Congress Party, the deceased Shankar Sitaram Naik Belonged to Varchi Ali party and the appellants and the acquitted accused to Khalchi Ali party. It is alleged that in the year 1961 or 1962 one Hasbya Bhoir was murdered and the FIR in respect of that incident was lodged by acquitted accused Vishwanath Balu Patil against the deceased Shankar and others. It appears that in the Sessions trial the deceased was acquitted along with others. In the year 1967 Ragho Bhdhya Mhatre, father of appellant-Janardhan Ragho Mhatre, Eknath Ragho Mhatre and acquitted accused Namdeo Ragho Mhatre was murdered by the deceased along with some others. In the trial the deceased Shankar was sentenced for 5 years R.I. On account of the aforesaid reasons Janardhan Ragho Mhatre, Eknath Ragho Mhatre, Namdeo Ragho Mhatre and Vishwanath Balu Patil along with other accused persons who were their partymen were inimical to the deceased Shankar and were adamant to take revenge.
4. On 9th August 1980 at about 11 a.m. Vithabai Naik, Anandi Naik and Radhabai Khot, the sister in law, the wife and the daughter of the deceased Shanker respectively had gone in the field of the latter for weeding purposes. At about 5 p.m. the deceased came on the field bringing tea for them. They took tea beneath the Wawala tree situate on the eastern border of the field. Thereafter they again commenced weeding operations. At about 5.30 p.m. the five appellants with axes and the 12 acquitted accused persons with sticks came on the field. Appellant Janardhan Ragho Mhatre rushed towards Shanker Naik and inflicted an axe blow on his head. Shanker tried to run a couple of paces but fell down as a result of the ferocity of the assault. Thereafter he was surrounded by the appellants and the acquitted persons and an assault on him by axes was launched by the appellants Eknath, Padu, Hira A. Naik, Ramji Naik and with sticks by the 12 acquitted accused persons.
Radhabai and her mother Anandi rushed to rescue Shanker Naik but their endeavour proved to be futile. Acquitted accused Vishwanath Balu Patil and Ramakant caught hold of Anandi. When Radhabai was about to fall on the person of her father to protect him from being assaulted the appellant Eknath caught hold of her hair and since they were artificial they fell on the place of the incident. Acquitted accused Haribhau Mhatre pushed Radhabai. Acquitted accused Vishwanath shouted that Shanker must be murdered and leaving Radhabai's mother took a farshi from the hands of Kashinath Mhatre and assaulted Shanker with the same. Shanker is alleged to have succumbed to his injuries as a result of the assault launched on him. Thereafter the appellants and the acquitted accused raising slogans of Vishwanath Patil Zindabad, ran away from the place of the incident.
Joma Bhoir, P.W. 8 and Dhanji who were also doing weeding work (in the field of the former) lifted Shanker and put him on the bandh.
5. While the assault on the deceased was in progress Vithabai Naik on apprehending that she might be attacked, quietly left the place of the incident and proceeded towards the village Daman Dongari, where two constables had been posted in connection with bandabost duty. While Vithabai was near the village, Usha Shanker Naik. P.W. 6, the daughter of the deceased met them. She told her that she was exhausted and that she should go ahead and inform the police about her father being assaulted. Usha went and informed the police. Vithabai also met police in the village. Thereafter all of them came back to the place of the incident. By that time the deceased had succumbed to his injuries and the appellants and the acquitted accused persons had run away.
One constable remained at the scene of the incident and thereafter with the other constable - Wagh, Vithabai proceeded for Panvel Taluka Police Station to lodge her FIR. They first came to village Jawala but failed to get any conveyance there. Hence they went on foot to Gavanpada Phata on Urban Panvel Road. There they boarded a State Transport bus for Panvel. At Panvel Taluka Police Station the same day at about 7.30 p.m. Vithabai lodged her FIR, Exhibit 8. The same bears her thumb impression. On the basis of the FIR C.R. No. 212 of 1980 was registered at Taluka Panvel Police station. It is significant to point out that in the FIR the appellant are Named and that the aforesaid police station is situated at a distance of about 11 kms. from the place of the incident.
6. After lodging of the FIR the investigation of this case was entrusted to Police Sub Inspector Vasant Nallawade, P.W. 13, Immediately he proceeded to village Baman Dongari where he prepared the inquest report Exhibit 21, and thereafter handed over the corpse of the deceased for post mortem examination. That very night he recorded the statement of Radhabai Khot under section 161, Cr.P.C. On 10-8-1980 P.S.I. Nallawade recorded the panchanama of the scene of offence Exhibit 22. He attached the loose hairs of Radhabai Khot P.W. 9 blood stained earth and simple earth. The aforesaid articles were produced in the Court as Articles 1, 2 and 3 respectively. On that very day he interrogated P.W. 3 Anandi P.W. 8 Jomo Bhoi and P.W. 2 Vithabai Naik. On 11-8-1990 appellant Eknath Ragho Mhatre was arrested by P.S.I. Pande and appellant, Janardhan Ragho Mhatre. Padu Aba Naik and Hira Aba Naik by him. The next day i.e. on 12-8-1980 he arrested Ramji Aba Naik. On 17-8-1980 of the pointing out of appellant Eknath under a panchanama Exhibit 25, he recovered 8 axes from beneath a karanja tree which was surrounded by shrubs and was at a distance of one k.m. from Vahad. On 20-8-1980 the blood-stained clothes are said to have been produced by appellants Janardhan Ragho Mhatre. Eknath Ragho Mhatre and Padu Aba Naik. The recovered axes, clothes, plain earth, blood stained earth etc. were sent to the chemical analyser. On 6-12-1980 he submitted the chargesheet against the appellants, and acquitted accused, other than Ramakant Balkrishna Gharat, against whom he submitted chargesheet on 18-3-81.
7. Going backwards the post mortem examination of the dead body of the deceased was conducted on 10-8-1980, between 9 a.m. and 10.30 a.m. by Dr. Shivaji Barfe P.W. 5. On the dead body the doctor found 21 incised wounds which were distributed on hands and legs. In addition he found an incised wound on the head of the deceased. The breakup of the injuries of the deceased was as follows :
4. incised wounds on the left leg. 4 incised wounds on the left hand : 4 incised wounds on the elbow of the left hand : 7 incised wounds on the right hand : two incised wounds on the right leg; and 1 incised wounds on the right parietal region.
The dimension of the incised wound on the right parietal region were :
7 cm x 2.5 cm x bone deep. It was situated 6 cm. above the right ear.
On internal examination the doctor found the fracture of the right parietal region and fissured fracture of the left parietal region. On the incised wounds which were distributed between hands and legs the doctor noticed as many as 8 fractures, they being -
1. Fracture of upper end of fibula (left);
2. Fracture of 1st phalanx, 4th finger of left hand;
3. Fracture of left radius-lower third;
4. Fracture of left ulna-upper head present;
5. Fracture of right radius lower end present;
6. Fracture of right ulna lower end present;
7. Fracture of right carpal bones (two)
8. Fracture of 1st phalanx of thumb right hand.
In the opinion of the doctor the deceased died as a result of shock due to head injury and external hemorrhage on account of multiple injuries suffered by him.
In his statement in the trial Court Dr. Barfe stated that the ante mortem injuries suffered by the deceased could be caused by the axes shown to him. He further stated that looking to the large number of the injuries he was of the opinion that a minimum number of 23 blows with axe or sharp edged weapon had been inflicted on the deceased. He also stated that the injury on the right parietal region was itself sufficient to cause death in the ordinary course of nature and cumulatively all the injuries suffered by the deceased were also sufficient to cause his death.
8. The case was committed to the Court of sessions in the usual manner. In the trial Court charges on three counts namely, Ss. 147, 148 and 302 read with 149, IPC were framed against the appellants to which they pleaded not guilty and claimed to be tried. Their defence was that of denial.
9. In the trial Court apart from tendering voluminous documentary evidence, prosecution examined as many as 13 witnesses. Out of them four viz. Vithabai Naik, Anandi Naik. Radhabai Khot and Joma Bhoir, P.Ws. 2, 3, 9 and 8 respectively were examined as eye-witnesses. The remaining witnesses included the autopsy surgeon, the investigating Officer, the panchas of recovery and of spot panchanama and some formal witnesses. In defence three witnesses viz. (i) Tulsiram Haribhau Chaudhari, (ii) Shivaji Gangaram Ghule and (iii) Draupati Chintu Tandel were examined, to prove that on the date and time of the incident P.W. Joma was not on his field situate adjacent to the place of the incident but instead was working as a labourer under Shivaji Ghule D.W. 2 who was a labour contractor and had a contract of road from the ONGC. The learned trial judge excepting the evidence of Joma P.W. 8, believed the evidence of the other eye-witnesses and convicted and sentenced the appellants in the manner stated above. As stated earlier he acquitted the 12 co-accused persons.
10. We have heard Mr. P. P. Hudlikar for the appellants and Mrs. Jyoti S. Pawar APP for State of Maharashtra, at considerable length. We have also perused the depositions of the witnesses examined by the prosecution, the material exhibits proved by the prosecution, the evidence of the three defence witnesses and the impugned judgment. After giving our anxious consideration to the matter we regret that we do not find any substance in this appeal and the same deserves to be dismissed.
11. At the very outset we may point out that for the reasons stated in paragraphs 21, 22 and 23 of the impugned judgment the learned trial judge acted prudently and wisely in not placing reliance on the evidence of P.W. 8 Joma Bhoir and on the recovery evidence of axes and clothes from appellants Janardhan, Eknath and Padu Aba Naik. We however, feel that despite this the remaining evidence is sufficient to sustain the conviction and sentence of the appellants.
12. The crucial question in this appeal is whether the evidence of Vithabai Naik, Anandi Naik and Radhabai Khot, P.Ws. 2, 3 and 9 respectively, inspires confidence or not. After giving our anxious consideration to this question we answer the same in the affirmative.
We firstly find that these witnesses are very natural witnesses of the incident and had a plausible reason to be present on the place of the incident which was the field of the deceased Shankar Naik who was the brother in law of Vithabai Naik, the husband of Anandi Naik and the father of Radhabai Khot. In their statement these witnesses have stated that on the date of the incident from 11 a.m. they were present in the aforesaid field of the deceased in connection with weeding operations. We can take judicial notice of the fact that after the rice saplings are transplanted the weeding is required. In this case there is evidence to indicate that shortly before the incident saplings had been transplanted.
All these witnesses have stated that from 11 a.m. to 5 p.m. they kept on taking out weeds. At about 5 p.m. the deceased Shanker came with the tea and they drank the same beneath the Wawale tree. Thereafter they again commenced weeding. In the mean time the appellants with axes and the acquitted accused with sticks came. Appellant Janardhan assaulted Shanker with an axe on his head and the remaining four appellants with the axes and the acquitted accused persons with sticks also assaulted him. The presence of as many as 22 incised wounds on the person of the deceased Shanker corroborates the evidence of these witnesses when they state that the appellants assaulted the deceased with axes. Dr. Barfe who performed the autopsy on the corpse of the deceased categorically stated that they could be caused by axes. In this view of the matter the participation of the appellants in the instant crime is clinched by medical evidence.
13. Apart from the medical evidence some other circumstances also leave no doubt in the mind of the Court that the appellants participated in the incident. The first circumstance which assures the Court about the participation of the appellants is that the FIR in the instant case was lodged very promptly i.e. within 2 hours of the incident taking place. As mentioned earlier the incident took place at about 5-30 p.m. on 9-8-1980 and the FIR was lodged on the same day at 7-30 p.m. by Vithabai covering a distance of about 11 Kms. In this FIR all appellants are named and the role of assaulting the deceased with axes has also been attributed to them. We have carefully scanned the evidence on record and we find that no challenge has been given by the defence to the claim of Vithabai P.W. 2 and P.S.I. Nallawade P.W. 13 about the FIR being lodged at 7-30 p.m. Since the distance between the place of the incident and Taluka Panvel Police Station where the FIR was lodged, was 11 kms. the irresistible inference is that the incident took place in broad day light, at about 5-30 p.m. as alleged by the prosecution. Criminal Courts attach great significance to the lodging of a prompt FIR. This prompt FIR goes a long way in rendering assurance to the prosecution case vis-a-vis the appellants. Recitals contained in the FIR to the effect that the appellants assaulted the deceased with axes have been consistently deposed to by the aforesaid three eye-witnesses in their statements in the trial Court and are corroborated by the medical evidence.
14. Assurance is also lent to the claim of the eye-witnesses that the deceased was assaulted in his own field by the circumstance that blood-stained earth, blood stained grass and hair were recovered from the said field by the investigating officer PSI Nallawade on the next day i.e. on 10-8-1980. The blood-stained earth and grass were sent to the Chemical Analyser who found human blood on them. Recovery of hair from the place of the incident corroborates the manner of the incident deposed to by Radhabai. In her statement in the trial Court she stated that when she went to the rescue of Shanker appellant Eknath caught hold of her hair and since they were artificial they fell down on the place of the incident. It is a trite that witnesses may lie but the circumstances do not and this circumstance certainly assures the Court that Radhabai was present on the place of the incident when the incident took place.
15. Another circumstance which lends assurance to the claim of these eye-witnesses of having seen the incident is their promptly being interrogated by PSI Nallawade under S. 161, Cr.P.C. Radhabai was interrogated by him on the date of the incident itself and Vithabai and Anandi the next day. Prompt interrogation under S. 161, Cr.P.C. lends assurance to the Court about the credibility of a witness and goes a long way to dispel any doubt in the mind of the Court about a witness being a got up.
16. In our view the evidence of Vithabai Naik P.W. 2, Anandi Naik P.W. 3 and Radhabai P.W. 9 coupled with the circumstances enumerated in paragraphs 12 to 15 amply clinches the participation of the appellants in the crime beyond reasonable doubt. We feel that the learned trial Judge was every inch right in convicting and sentencing the appellants in the manner stated above.
17. Mr. P. P. Hudlikar, learned counsel for the appellants with great competence and fairness has argued this appeal. He canvassed a number of submissions before us. He firstly submitted that the there eye-witnesses relied upon by the learned trial Judge viz. Vithabai Naik, Anandi Naik and Radhabai Khot, being the sister in law, wife and the daughter of the deceased respectively were interested witnesses and it would not be safe for us to accept their testimony. We regret that we do not find any merit in this contention. Wayback as the year 1965 in the decision Masalti v. The State of Uttar Pradesh and Darya Singh v. State of Punjab, the Apex Court held that the circumstance that a witness is related is no ground to reject such evidence but should only put the Court on guard while scrutinising the evidence of such a witness. We have borne this caution while evaluating the testimony of these witnesses and we find that the same can be safely relied upon.
In (1965 (1) Cri LJ 226 (SC) (supra), in para 14 the Apex Court has observed that in faction ridden villages only partisan evidence is available and the mechanical rejection of such evidence would result in failure of justice. In the instant case there is ample evidence to indicate that village Baman Dongare where the incident took place was a faction ridden one. Hence this contention of Mr. Hudlikar fails.
18. Secondly Mr. Hudlikar contented that in asmuch as these very eye-witnesses have attributed the role of assault by sticks on the deceased to the 12 acquitted accused persons and there are no stick injuries on the person of the deceased, their evidence vis-a-vis the appellants should also not be accepted. We regret that we cannot accede to this contention of Mr. Hudlikar either. The principle falsus uno falsus omnibus has been repeatedly held by the Apex Court as not applicable in our country. In our country from its very inception the Apex Court has been repeatedly emphasising that the Courts should make every endeavour to separate the grain from the chaff and that the whole edifice of the prosecution case only falls when they are incapable of separation. This is not the case here. Here truth and falsehood is capable of being separated. As said earlier so far as the five appellants are concerned they are alleged to have assaulted the deceased with axes and in the FIR of the incident which saw the light of the day within two hours of the incident taking place, this role has been given to them by the informant Vithabai Naik. All the three eye-witnesses in their statements have also stated that these appellants assaulted the deceased with axes. As said earlier the post-mortem report of the deceased shows that he sustained as many as 22 incised wounds. Dr. Barfe who conducted the autopsy on the dead body of the deceased stated that minimum 23 blows with axes or sharp cutting weapons were inflicted on the person of the deceased. In our view it was perfectly permissible, proper and legitimate for the trial Court to believe the evidence of these eye-witnesses vis-a-vis the appellants in spite of the fact that they attribute role of assault by sticks on the deceased to the acquitted accused persons and there may not be stick injuries on the corpse of the deceased.
19. Mr. Hudlikar thirdly contented that there has been laxity in investigation and the benefit of the same should enure to the advantage of the appellants. In this connection he pointed out that although P.W. 3 Anandi and P.W. 9 Radhabai stated in their statements that their clothes were smeared with mud and blood the investigating officer PSI Nallawade P.W. 13 did not take those clothes in possession. He further urged that although the evidence of P.W. 9 Radhabai was to the effect that as a result of the weeding they had collected about 10 to 12 baskets of weeds, but the investigating officer did not take the same in possession. He also urged that the failure of the investigating officer to recover the kettle and the glasses in which the three lady eye-witnesses had tea also discredits the prosecution case. There can be no denying the fact that it would certainly have been better had the investigating officer been vigilant in taking the clothes, the weeds, the kettle and glasses into his possession. However, it is well settled that for lapses of investigation the intrinsic weight of ocular account cannot be discarded. It would certainly be perpetrating injustice if on account of lapses of investigation the cogent and truthful ocular testimony is thrown over board.
In this connection it would be appoisite to refer to the observations of their Lordships of the Apex Court in para 6 of the decision in Karnal Singh v. State of M.P., which are to the following effect :
"We much admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
Hence this submission of Mr. Hudlikar also fails.
20. Fourthly Mr. Hudlikar contended that the ocular account should not be accepted because in the FIR and the statement of the informant Vithabai Naik P.W. 2, 13 persons, including the appellants, were named whereas in the statements of the other two witnesses, Anandi and Radhabai 17 persons, including the appellants, are named. What Mr. Hudlikar seems to have over-looked is that so far as the five appellants are concerned their names are mentioned not only in the FIR but also in the testimony of the informant as well as the other two eye-witnesses namely, Anandi and Radhabai. Hence this discrepancy does not enure to the benefit of the appellants and this submission also fails.
21. Fifthly Mr. Hudlikar contented that in asmuch as unlike Janardhan Mhatre who is alleged to have assaulted the deceased with an axe on head it has not been stated by the eye-witnesses as to on which parts of the body of the deceased the other four appellants assaulted the allegation against them were of a general nature and they should be given benefit of doubt. We regret that we do not find any merit in this submission either. All the three eye witnesses have categorically stated that Janardhan Mhatre only assaulted the deceased with an axe on his head. The post mortem report also shows, that apart from the incised wound on his head, the deceased had as many as 21 other incised injuries, distributed between hands and legs. This obviously means that the other four appellants also assaulted the deceased with axes. Even otherwise we are not prepared to believe that Janardhan Mhatre, single handed, could inflict as many as 22 injuries. Hence this submission also fails.
22. Finally Mr. Hudlikar contended that in as much as the appellants Eknath Ragho Mhatre, Padu Aba Naik, Hire Aba Naik and Ramji Aba Naik assaulted the deceased with axes on his hands and legs, it would be proper to infer that the common object of the unlawful assembly was only to cause grievous hurt to the deceased and to convict them only under S. 326, IPC read with S. 149, IPC. He urged that the killing of the deceased was the individual act of the appellant Janardhan Mhatre who assaulted the deceased with an axe on head and for this he alone would be liable under S. 302, IPC. simpliciter. We regret that we do not find any merit in this submission either. The manner in which the incident took place shows that a pre-meditated assault was launched on the deceased by all the five appellants with axes. The assault was merciless inasmuch as 22 incised wounds were inflicted on the deceased. The evidence is that the appellants kept on assaulting the deceased till he died. Thereafter they ran away together. As a result of the assault both the right and left side of parietal bone was fractured and as many as eight other fractures were caused on hands and legs of the deceased. The medical evidence is that individually the injury on the right parietal region was sufficient to cause death in the ordinary course of nature and cumulatively all the injuries were sufficient to cause death. In such a situation it can safely be inferred that the murder of the deceased was committed in furtherance of the common object of the five appellants who had formed an unlawful assembly for that express object. At any rate they knew that the same could be committed, as contemplated by the second part of S. 149, IPC.
23. It needs to be emphasised that the basis of liability under S. 149, IPC is constructive and not individual. Once the membership of an unlawful assembly is proved and it is established that the act was committed in prosecution of the common object of the unlawful assembly or was such which the members knew was likely to be committed all the members would be equally liable for it, irrespective of the gravity of their individual roles. Even those who do not take part in the actual assault on the victim would be equally liable. Our view is fortified by the observations of their Lordships of the Apex Court contained in paras 9 and 10 of the judgment reported in (1989 Cri LJ 850) (SC), Lalji v. State of U.P.), which are to the following effect :
9 ......................................
"It must be noted that the basis of the constructive guilt under S. 149 is mere membership of the unlawful assembly with the requisite common object or knowledge."
"10. Thus once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive act. The prosecution would have no obligation to prove it."
In view of this legal position even the acts of appellants, other than Janardhan Mhatre, would also fall within the mischief of S. 302/149, IPC. In our view the learned trial Judge acted correctly in convicting them on that count.
24. Pursuant to the above discussion we find no merit in this appeal and dismiss the same. The impugned judgment dated 10th July 1981 convicting and sentencing the appellants under Ss. 147, 148, 302 read with 149, IPC is confirmed. The appellants are on bail. They shall be taken into custody forthwith to serve out their sentences.
Before parting with this judgment we would be failing in our duty if we do not put on record our appreciation for the enormous assistance which we have received from Mrs. Jyoti S. Pawar, the learned APP in the disposal of this appeal. With an admirable combination of thoroughness, tenacity and fairness she has argued this appeal. She has placed relevant material before us and this has largely facilitated dictation of judgment by us.
Issuance of certified copy is expedited.
25. Appeal dismissed.