Sadhana S.Jadhav - (1.) , J
(2.) THE appellants herein are challenging their conviction and sentence recorded by Ad-hoc Additional District Judge, Yavatmal in Sessions Trial No.23/2006 by a judgment and order dated 30.6.2009. THE charge under Sections 147, 148, 302 read with 149 of Indian Penal Code was framed against those persons in Sessions Trial No.23/2006. THE original accused nos. 4 to 6 are acquitted for the offence punishable under Sections 302 read with 149 of I.P.C. THE original accused nos. 1 to 3 are acquitted for offences punishable under Sections 147 and 148 of I.P.C. THE original accused Nos. 1 to 3 (the present appellants) are convicted for the offence punishable under Section 302 read with Section 34 of I.P.C. and are sentenced to undergo imprisonment for life and to pay fine of Rs.500/- each in default further rigorous imprisonment for 6 months. The case of the prosecution is as follows:- (a) Krushnarao Marotrao Likhar (PW2) runs a vegetable shop. He had four sons namely Rajesh, Ravindra, Mukesh and Nitin. Krushnarao Likhar used to open his vegetable shop at about 7 a.m. and return home after 1 p.m. Thereafter his fourth son Nitin used to run the shop. The incident is dated 9.1.2006. Krishnarao Likhar was at home along with Ravindra, Mukesh and his wife. He was taking rest after having lunch. (b) At about 1.40 p.m., PW2 saw some people were running from front of his house. He asked them the reason and was informed that two persons are assaulted and are lying near the board of Anand Nagar. He along with his sons went to the said spot. They saw that his son Rajesh was lying there in an injured condition and Manoj was lying in an injured condition next to him. Manoj was unable to speak. However, Rajesh was conscious. They asked him what happened and he informed his father that they were assaulted by accused nos. 1 to 3 i.e. the present appellants. (c) In the meanwhile, the police jeep came on the spot and Rajesh was taken to the hospital in the police jeep. At about 4 p.m., Krushnarao Likhar lodged a report at Wadgaon Police Station against four persons. He informed the police in the said report that in the year 2004, on the day preceding Diwali, Amar Chindale and Bablu Bhaganagarkar were killed. His son Rajesh was in jail for 9 months and was enlarged on bail 6 months prior to 9.1.2006 and Anand Chindale, Rajkumar Chindale, Pappu Chindale and Nitin Chindale had assaulted his son Rajesh in order to seek vengeance of the murder of Amar Chindale. The oral report lodged by Krishnarao Likhar is at Exh.216 and the first information report in the printed proforma under Section 154 of Cr.P.C. is at Exh.217. (d) On the basis of the said report, Crime No.6/2006 was registered against the persons named in the first information report for offence punishable under Sections 302 and 307 read with 34 of I.P.C. Investigation was set in motion. The accused were arrested on the same day i.e. on 9.1.2006. Rajesh had succumbed to the injuries at about 4.45 p.m. on the same day. (e) On the basis of the statement recorded of some persons, original accused nos. 4 and 5 were arrested on 10.1.2006. The charge sheet was filed on 5.4.2006. The case was committed to the Court of Sessions and was registered as Sessions Trial No.23/2006. The prosecution examined 21 witnesses to bring home the guilt of the accused. The witnesses can be classified accordingly: (a) PW3 Raghunath Nakshane and PW6 Yogesh Rohane are eye witnesses, (b) PW2 Krushnarao Likhar is the father of deceased Rajesh. He is the complainant. PW9 Ravindra Likhar is the son of the complainant and brother of deceased Rajesh. (c) PW10 Janardan Rohane is the father of deceased Manoj Rohane. (d) PW13 Dr. Rajeshwari Deshmukh has examined accused no.3 Rajkumar Chindale on 9.1.2006. She had also examined Anand Chindale and the deceased Rajesh. PW14 Dr.Deshpande was a surgeon in Government Medical College, Yavatmal. He had examined Rajesh Likhar and found multiple stab injuries. PW7 Dr. Hemant Kukdey along with Dr. Kalpe had performed autopsy on the dead bodies of Rajesh Likhar and Manoj Rohane. (e) PW20 Manish and PW21 Jadhav are the investigating officers. (f) The panch who are witnesses to the memorandum, recovery of weapons and arrest of the accused i.e. PW1 Chohitram, PW4 Naresh, PW5 Santosh, PW8 Anil, PW12 Ashish, PW15 Asgullakhan, PW17 Ravi and PW19 Bandu have been declared as hostile witnesses.
(3.) THE evidence adduced by the prosecution through the eyewitnesses needs to be discussed at the threshold. Discussion as regards testimony of PW3 is as follows:- (a) PW3 Raghunath Nakshane is a friend of deceased Rajesh and Manoj. He is co-accused along with Rajesh and Manoj in the case of the murder of Amar Chindale and Bablu which took place in the year 2004. Rajesh, Yogesh, Manoj and Raghunath were enlarged on bail. (b) PW3 has deposed before the Court after being enlarged on bail, Manoj was residing in a village near Zadgaon along with his brother Yogesh as he apprehended danger to his life. PW3 has deposed before the Court that on 9.1.2006, Manoj had stayed at Yavatmal along with Rajesh. Rajesh and Manoj were in the vegetable shop. PW3 had been to meet them. He informed them that he was going to the petrol pump. He met Yogesh on the way. Yogesh had come to consult his Advocate. (c) THEreafter PW3 and Yogesh went to the shop of Rajesh and then they all four decided that they would go to the house of Rajesh to take meals. Rajesh and Manoj were on one motorcycle whereas PW3 and Yogesh were on the another motorcycle and were following Rajesh and Manoj. When they were in Anand Nagar, they saw a gang of 12 to 13 persons who mounted assault upon Rajesh and Manoj with sword, knife and sattur. Accused no.3 Rajkumar Chindale shouted loudly to catch hold of PW3 and Yogesh and being scared of the situation, PW3 and Yogesh fled from the spot and went to the house of PW3. After some time, they came to the shop of Rajesh. THEreafter PW3, three brothers of Rajesh and their father went to the spot. He has named the persons whom he saw at that time. (d) In the cross-examination, PW3 has admitted his criminal antecedents. He has also admitted that he belongs to the group of Pravin and Chandrakant Raut. He has further admitted in the cross-examination that father of Rajesh had reached the spot before him and by the time he reached the spot, Rajesh was taken to the hospital. According to him, initially Rajesh was being taken on a handcart but in the meanwhile the police jeep reached there and, therefore, he was taken to the hospital in the police jeep. (e) Certain material omissions are elicited in the cross-examination such as: (i) THE allegations that Rajkumar asked to catch hold of PW3 and Yogesh. (ii) Rajkumar Chindale had threatened to kill them after they were enlarged on bail. (iii) On 9.1.2006, he had been to the petrol pump and Yogesh met him outside the bus stand and informed that he had come there to discuss his case with his Advocate and thereafter PW3 brought Yogesh to the shop of Rajesh. (iv) When accused no.3 shouted to catch hold of them, he along with Yogesh fled from the spot. (v) He again went to the vegetable shop and that he knows other accused by their faces. (f) PW3 has deposed before the Court that: "out of 12 to 13 persons, others were assaulting Rajesh and Manoj and accused came to him" . (g) With this admission it can be inferred that the accused present before the Court were attempting to attack PW3 and out of 12 to 13 persons, besides the accused persons, were assaulting Rajesh and Manoj. This admission would absolve the accused/appellants of the charge of assaulting Rajesh and Manoj at that time. Moreover, PW3 has admitted that he could not identify them. It is material to note that in this case the investigating officer has not conducted test identification parade. (h) PW3 has admitted in the crossexamination that on 9.1.2006 when he went to the shop of Rajesh on the first occasion, the father of Rajesh i.e. PW2 was also present in the shop. According to him, Nitin was also present in the shop. He has further stated that he was present in the shop from 1 p.m. to 2 p.m. and during that period Manoj had not gone to the house of Rajesh. Rajesh was driving Suzuki Motorcycle and PW3 was driving Splendor Motorcycle. (i) PW3 has further stated that there is turn to the road near Sunita building and from there onwards, it is a straight road. However, he has admitted that the spot of incident is not visible from Sunita building. THE witness was confronted with his previous statement and has admitted that the portion mark A in his statement is incorrect. (j) According to PW3, he had informed the father of Rajesh that he is a witness to the incident when they were in the hospital and at that time Ravindra was present, whereas Rajesh was alive and after receiving information from PW3, father of Rajesh went to the Police Station to file the first information report. (k) In view of the above discussion, it does not appear that PW3 who claims to be an eye witness, is a wholly reliable witness. The prosecution has examined Yogesh Rohane as an eyewitness. Discussion as regards testimony of PW6 is as follows:- (a) PW6 has stated before the Court that on 9.1.2006 when he went to the petrol pump, he met Raghunath Nakshane i.e. PW3. He informed PW3 that he had come to pay his Advocate's fees. PW3 informed him that Manoj is present in the shop of Raju Likhar. They went to the shop of Rajesh. Manoj questioned him as to why he had come to Yavatmal. PW6 gave the same answer which he had given to PW3. (b) Then Raju Likhar requested them to take meals along with him. Thereafter Rajesh and Manoj went ahead on Suzuki Motorcycle and Raghunath and Yogesh were on Honda Motorcycle. They had chosen the route via Date College Chowk, Sunita building, Anand Nagar and then Vedhdharini temple. (c) When they reached near Anand Nagar, 8 to 10 persons encircled Raju and Manoj. At that time, PW3 and PW6 were near the gate of Sunita building situated towards east side. Out of anxiety, they proceeded further and saw that 9 to 10 persons were beating Rajesh and Manoj with sword, knife and sattur. PW6 has named nine persons amongst the assailants. Rajkumar Chindale shouted to catch and beat PW3 and PW6. Thereafter they both went to the house of Raghunath (d) In the cross-examination, he has also admitted his criminal antecedents. The omissions elicited in the cross-examination of PW6 are as follows:- (i) that he had met Raghunath Nakshane at petrol pump and told him that he had come to pay Advocate's fees. The place of meeting at petrol pump is not mentioned in his statement; (ii) that Raghunath did not inform him that his brother Manoj is present in the shop of Raju; (iii) that when they reached near Sunita building, they wondered as to who had obstructed Raju and Manoj and, therefore, went ahead for some distance; (iv) that Rajkumar shouted to catch hold of PW3 and PW6 and (v) that he witnessed the incident from the distance of 15 to 20 feet from eastern side gate of Sunita building. All these are material omissions. (e) PW6 has stated before the Court that he did not go to meet his Advocate on that day. When he went to the shop of Raju, Nitin was present in the shop. PW3 did not meet him at the shop of Raju. In his presence, Manoj had hot gone to the house of Raju to bring the vehicle. The vehicle which was driven by Raju and Manoj at the time of incident was stationed at the shop when PW6 went there. After the incident, he had first gone to the house of PW3 and then to the hospital. They met PW2 and his sons in the hospital and that he narrated the incident to them. They waited in the hospital till evening. He did not see PW3 in the hospital. On the same day at about 8 p.m., PW6 went to village Sarai along with his parents as they were scared. That they departed from the spot of incident before the departure of assailants. (f) PW6 has categorically admitted that: " some persons were passing by the road, when they reached near Sunita building. The road takes turn towards left side near the Board of Anand Nagar. After taking turn, it is not visible what happens onwards the board of Anand Nagar. Except myself and Raghunath, nobody was present where we had stopped. The incident started when Rajesh and Manoj were on the motorcycle." (g) In view of the material omissions and contradictions read in consonance with the evidence of PW3, it can be inferred that upon seeing ghastly incident, PW3 and PW6 were scared and to save their skin, they had fled from the scene of offence and had not actually witnessed the assault. Their inability to tell the Court as to who were the assailants, no implicit reliance can be placed on the evidence of PW3 and PW6. ;