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Judgment
Vishnu Sahai, J.—Vide judgment and order dated 24-8-1993 passed in Sessions Case No. 54 of 1992, the Additional District and Sessions Judge, Pandharpur, convicted and sentenced the appellants in the manner stated hereinafter :
(i) Basanna Nigonda Hattali (appellant No. 1), Malku Bhimraya Hattali (appellant No. 8), Tamrayya Nigonda Patil (appellant No. 12) and Mallensha Nigonda Patil (appellant No. 13) u/s 302 read with Section 34, I.P.C. to life imprisonment;
(ii) Chandrakant Murgappa Umrani (appellant No. 2), Laxman Hanmant Hattali (appellant No. 3), Dundeppa Shivappa Umrani (appellant No. 4), Pandurang Jagannath Nikam (appellant No. 6), Mohan Baliram Koli (appellant No. 7), Sangappa Bhimraya Hattali (appellant No. 9), Malkanna Annarayya Birajdar (appellant No. 10) and Kallappa Ramchandra Hattali (appellant No. 11) u/s 304, Part II, I.P.C. read with 34, I.P.C. to 5 years R.I. and u/s 323 read with 34, I.P.C. to 6 months R.I. Malkanna Annarayya Birajdar (appellant No. 10), was further convicted u/s 325 read with 34, I.P.C. and sentenced to 3 years R.I.
(iii) Vithal Krishna Nikam (appellant No. 5) u/s 304, Part II read with 34, I.P.C. to 5 years R.I. and u/s 325 read with 34, I.P.C. to 3 years R.I. The sentences of all the appellants, excepting appellants Nos. 1, 8, 12 and 13 were directed to run concurrently. It is these convictions and sentences of the appellants which have been challenged in the present appeal.
The prosecution case, in brief, as emerges from the recitals contained in the FIR and the statements of the three injured witnesses viz. Sangappa Birajdar (P.W. 1), Sidharaya Loni (P.W. 6) and Digambar Appasaheb Pawar (P.W. 11) runs as follows :
The appellants on one side and the victims on the other are residents of village Chikalgi, situate within the limits of Taluka and police station Mangalwedha, District Sholapur. On 14-11-1991 an election was scheduled for Co-operative Society of village : Chikalgi. Two parties were contesting the election. One of them was led by appellant No. 13 Mallesha Nigonda Patil, and the other by Ishwarappa Birajdar. The informant and others are said to have belonged to the party of Ishwarappa.
On 12-11-1991, Sangappa Birajdar (P.W. 1), Sidharaya Loni (P.W. 6) Digambar Pawar (P.W. 11) (the three injured) and the deceased Sankonda Birajdar had gone on cycles to the house of one Dariyya Birajdar to hire a tractor belonging to him for bringing the voters in the election, scheduled for 14-11-1991. Dariyappa informed them that his tractor was out of order, but, insisted that before leaving they should have tea. Consequently, the aforesaid persons had tea at Dariyappa''s place. While they were returning on cycles, to village Chikkalgi, by the road, leading from Raddhe to Shrirnandgi, and had reached the field of one Ganendra Nikam, all of a sudden the 13 appellants emerged before them. As the time was about 10 p.m. they could be recognised because, there was moon light. They asked the informant Sidharaya and others as to why they were contesting elections against them. Appellant Basanna Nigonda Hattali was armed with an axe, appellant Chandrakant Murgappa Umrani was armed with a handle of an axe and the remaining appellants were armed with sticks. Thereafter, an assault was launched by the appellants on the informant and others.
Appellants Basanna Nigonda Hattali, Malku Bhimraya Hattali, Tamrayya Nigonda Patil and Mallesha Nigonda Patil assaulted the deceased Sakonda Birajdar.
The appellants Vithal Krishna Nikam and Malkanna Annarayya Birajdar assaulted Sangappa Birajdar.
Appellants Chandrakant Murgappa Umrani, Laxman Hemant Haytali, Dundappa Shivappa Umrani and Mohan Baliram Koli assaulted Sidharaya Loni.
Appellants Pandurang Jagannath Nikam, Malku Bhimraya Hattali, Sangappa Bhimraya Hattali and Kallappa Ramchandra Hattali, assaulted Digambar Pawar.
After the incident was over, the informant Sidharaya Loni ran away from the place of incident through the fields. He reached village Chikkalgi where he informed Ishwarappa Birajdar and Sangappa Ramchandra Birajdar about the incident. Consequently Ishwarappa Birajdar, Sangappa, Ramchandra Birajdar the informant Sidharaya Loni along with five to ten other persons came to the place of the incident. There they saw that the deceased was lying dead with injuries on his head, face, and left eye and four bicycles were lying. Thereafter the informant Sidharaya Loni along with Sangappa Birajdar, Digambar Pawar, Ishwarappa Birajdar and Sangappa Ramchandra Birajdar came back to village Chikkalgi. Sangappa Ramchandra Birajdar then proceeded on a motor cycle to village Baclad for bringing a jeep. A jeep was brought on the spot and in the same, the informant, Sidharaya Loni, Sangappa Birajdar, Digambar Pawar and Ishwarappa Birajdar came to police station Mangalwedha, They reached there at about 3.15 a.m.
When the informant Sidharaya Loni and others reached police station Mangalwedha at about 3.15 a.m. on 13-11-1991 PSI Vasant Gundiba Pawar P.W. 19 was present there. The informant Sidharaya Loni narrated to him the incident. He reduced the FIR writing with the help of constable Pawar.
The medical examination of the three victims Sangappa Birajdar (P.W. 1) Sidharaya Loni (P.W. 6) and Digambar Appasaheb Pawar (P.W. 11) was conducted on 13-11-1991 at Rural Hospital Mangalwedha by Dr. Shirnivas Hari Korulkar. P.W. 18.
At 10 a.m. Sidharaya Loni was medically examined. The following injuries were found on his person :-
(1) Laceration over occipital region of scalp 1 x 1/2 x 1/2 cm.
(2) Contusion over back (a) right supra scapular region 15 x 2 cm. (b) right scapular region 10 x 2 cm. right scapular region 7 x 2 cm.
(3) Contusion over neck 2 x 1 cm.
(4) Abrasion over forehead 1 x 1/2 cm. All the injuries were simple in nature and had occurred within 24 hours with blunt and hard object.
At 10.15 a.m. Digambar Appasaheb Pawar was medically examined and the following injuries were found on his person :-
(1) Contusion over left forearm posteriorly 3 x 2 cm.
(2) Contusion over chest below the right axilla - 4 x 2 cm.
(3) Contusion over left thigh anteriorly 7 x 3 cm.
All the injuries are simple in nature, were 24 hours old, caused by hard and blunt object.
At about 10.30 a.m. Sangappa Revgonda Birajdar was medically examined. He was found to have suffered following injuries :-
(1) Laceration over scalp behind the back of right ear 1 x 1/2 x 1/2 cm.
(2) Incised wound over right arm laterally 1 x 1/2 x 1/4 cm. and 1 x 1/2 x 1/2 cm.
(3) Abrasion over right forearm 2 x 1 cm.
(4) Contusion over left infra scapular region 5 x 2 cm. and 6 x 2 cm.
All the injuries are simple in nature and caused by hard and blunt object except injury No. 2. All the injuries were caused within 24 hours.
The aforesaid injuries of the three victims were entered in the out-patient department register (OPD Register) which is maintained day-to-day.
Dr. Korulkar also stated that when he took over the charge, there was no medico-legal register and the injuries were noted in the OPD Register. He candidly stated that on account of some correspondence made by him, the medico-legal register is being maintained since 1-4-1992.
Dr. Korulkar referred victims Sidharaya Loni and Sangappa Revgonda Birajdar to Civil Hospital, Solapur. There on 15-11-1991, the aforesaid victims were examined by Dr. Sanjay Atmaram Gaikwad, P.W. 10. Dr. Sanjay Gaikwad found injuries on their person and since the injuries found on Sidharaya Loni are the same which were found by Dr. Korulkar, P.W. 18, we are not reproducing them in our judgment. On Sangappa, he found 1 contusion, 2 contused lacerated wounds and 1 abrasion.
We may mention that in the opinion of Dr. Gaikwad, the injuries of the aforesaid persons were about 72 hours old.
Dr. Gaikwad had referred the victim Sangappa Birajdar to the Orthopaedic Department where his X-ray of right hand was done. On the basis of the X-ray report, Dr. Gaikwad stated that Sangappa Birajdar had suffered fracture of proximal phalanx of right finger, fracture of right radius, right ulna and fracture of base of neck of right metacarpal.
On the basis of these fractures. Dr. Gaikwad opined that injuries Nos. 1 and 2 of Sangappa Birajdar, were grievous in nature. (these injuries comprised of contused and contused lacerated wound on the right forearm and lateral side of right arm respectively)
The post-mortem examination of the dead body of Sakonda Birajdar was conducted on 13-11-1991 between 1 p.m. and 2 p.m. by P.W. 18 Dr. Korulkar. On the dead body the doctor found the following ante-mortem injuries :
(1) Incised wound over scalp central vertical, anterior posterior 3 x 1/2 x 1/2 inches.
(2) Incised wound over scalp right parietal region obliquely 3 x 1 x 1/2 inches.
(3) Incised wound over forehead above the right eyebrow transversely 3 x 1 x 1/4 inch.
(4) Fracture of upper jaw and left maxilla, the fracture line going through left upper canine and incisors.
(5) Fracture of the lower jaw on left side, fracture line going through left lower canine and premolars.
The doctor also found animal bites on the dead body. (The case for the prosecution is that leaving the dead body on the place of the incident, the informant and others had gone to lodge FIR).
On internal examination Dr. Korulkar found fracture of skull over right parietal region, haemotoma above the brain and right parietal region.
Dr. Korulkar opined that the deceased died on account of fracture of skull and multiple injuries. He also opined that the aforesaid injuries were sufficient in the ordinary course of nature to cause the death and were caused 12 to 24 hours prior to the post-mortem examination.
Dr. Korulkar also stated that injuries Nos. 1 to 3 could be caused by a sharp portion of Article 19 (axe) and injuries Nos. 4 and 5 could be caused if the axe is used from the blunt side and also by any blunt object like sticks, produced before him in the Court.
The investigation of the case was conducted by P.S.I. Vasant Pawar (P.W. 19), After reducing the FIR in writing and signing the same he despatched it to P.S.O. Dhavale. Thereafter he left for the place of the incident with the informant. He prepared the inquest Panchanama at 6.45 a.m. He also prepared the spot Panchanama. He seized blood-stained cap, a pair of chappals, blood-stained earth, plain earth and 4 bicycles under a panchanama. He recorded the statements of the son, daughter and wife of the deceased. He thereafter searched for the appellants. The same day he also seized the blood-stained clothes on the person of the witnesses and drew up a panchanama. The same day (13-11-1991) he recorded the statements of Digambar Pawar, Sangappa Birajdar and others.
On 15-11-1991 P.S.I. Pawar arrested the appellant Basanna Nigonda Hattali and five others at Metkarivasti situate at a distance of 2 kms. from village chikalgi. He seized blood-stained clothes from Basanna Hattali, Laxman Hattali and Sangappa Hattali, under a panchanama Exhibit 56.
On 16-11-1991 P.S.I. Pawar arrested appellant Kallappa Hattali and three others. On 17-11-1991 at 7 p.m. he arrested appellant Malkanna Birajdar. On 18-11-1991 he arrested appellant Tamrayya Nigonda Patil.
On 20-11-1991 appellant Basanna Hattali confessed before him that he could get the weapons of assault used in the incident recovered. Consequently a panchanama (Exhibit 95) was prepared. Thereafter along with public panchas and the appellant Basanna Hattali P.S.I. Pawar went to village Chikalgi and there from a house, which the appellant Basanna said belonged to him, at the pointing out of the appellant, a blood-stained axe and 7 sticks were recovered.
The clothes of the victims, the clothes of the deceased and the injured and also the weapons of assault etc. were sent to the Chemical Analyst by P.S.I. Pawar.
Finally on 8-2-1992 P.S.I. Pawar submitted the chargesheet against the appellant.
The case was committed to the Court of Session in the usual manner. In the trial Court charges under Sections 147, 148 302 read with 149, 323 read with 149, 325 read with 149, 504 read with 149, 506 read with 149, I.P.C. and u/s 37(i) of the Bombay Police Act were framed against the appellants to which they pleaded not guilty and claimed to be tried. The defense of the appellants was that of denial.
In the trial Court apart from tendering voluminous documentary evidence, prosecution examined in all 19 witnesses. Out of them three, viz. Sangappa Birajdar, Sidharayya Loni and Digambar Pawar, P.Ws. 1, 6 and 11 respectively, were examined as eye-witnesses. The remaining witnesses included Dr. Korulkar (P.W. 18), who first examined the three victims, Dr. Sanjay Gaikwad (P.W. 10), who examined the victims Sidharayya Loni and Sangarappa Birajdar on being referred to him by Medical Officer of Rural Hospital Mangalweda, Dr. Korulkar; and P.W. 19, P.S.I. Pawar, who conducted the investigation in the instant case. Out of the other witnesses, some gave evidence in respect of recoveries, some proved inquest panchanama and spot panchanama and some gave purely formal evidence.
In defense no witnesses were examined by the appellants.
The learned trial judge believed the evidence adduced by the prosecution and passed the impugned order.
We have heard. Mr. Adik Shirodkar along with Mr. V. M. Thorat for the Appellants, Mr. K. H. Chopda Additional Public Prosecutor for the State of Maharashtra and Mr. T. E. Mane for the Complainant. We have also perused the oral evidence adduced by the prosecution and the various exhibits tendered and proved by. After giving our anxious considerations to the matter we are of the opinion that the appellants 5 and 10, namely, Vithal Krishna Nikam and Malkanna Annarayya Birajdar deserve the benefit of doubt and there is no substance in the appeal preferred by the remaining appellants which warrants to be dismissed.
We now propose giving our reasons in support of the view which we have taken.
The crucial question in this appeal is as to whether the evidence of the three injured eye-witnesses viz. Sangappa Birajdar, Sidharaya Loni and Digambar Pawar, P.Ws. 1, 6 and 11 respectively inspires confidence. We have been taken through the evidence by the learned counsel for the parties and in our view the same inspires confidence. The manner of assault as given out by these witnesses have been mentioned by us in paragraph 2 of our judgment. To reiterate the evidence of P.W. 6 Sidharaya Loni and P.W. 11 Digambar Pawar is that they were assaulted by blunt weapons and the deceased was assaulted by appellant Basanna Hattali by an axe, Malku Hattali, Tamrayya Patil and Mallesha Nigonda Patil by sticks. These witnesses also stated that Sangappa Birajdar was assaulted by a handle of an axe by Chandrakant Umrani and also by sticks. A perusal of the statement of Sangappa Birajdar shows that he corroborates Sidharaya Loni and Digambar Pawar regarding the manner in which both he and the deceased were assaulted.
In the earlier part of our judgment we have mentioned in detail the injuries received by these three injured witnesses and the deceased and we are impressed with the conformity between the manner of assault given by these three witnesses and the medical evidence.
Another thing which greatly impresses us is that these three witnesses were medically examined within 12 hours of the incident. A perusal of their injuries shows that each of them had at least one injury on his vital part. A perusal of the injury report of Sangappa Birajdar also shows that he had a number of fractures on his right fore-arm and the lateral side of the right arm. The point which we wish to emphasise is that looking to the nature and seat of the injuries and keeping in mind that these injuries were examined within 12 hours of the incident by no stretch of imagination can it be said that they were either manufactured by the victims themselves or got inflicted by them through a third person.
We may mention that no suggestion was given to any of these three victims that their injuries were either self-inflicted or they got them manufactured through a third agency. We may also mention that no such suggestion was given to either of the two doctors and looking to the gravity and seriousness of the injuries no-one would dare to manufacture such injuries.
The injuries seal the presence of the three eye-witnesses on the place of the incident.
The circumstance that all these three witnesses were interrogated u/s 161, Cr.P.C. by the Investigating Officer P.S.I. Pawar on the day following the incident, i.e. on 13-11-1991 also lends credence to their claim of having seen the incident. Recoveries of a blood-stained cap, a pair of chappals, blood-stained earth and 4 bicycles from the place of the incident also renders truthful the account of the incident furnished by these eye-witnesses.
Incidentally we may point out that the place of the incident has not been seriously challenged by the defense.
Assurance is also lent to testimony of the three injured eye-witnesses by the circumstance that the FIR has been lodged very promptly. As mentioned above, the incident took place on 12-11-1991 at about 10 p.m. and the evidence of P.S.I. Pawar who took down the FIR is that the informant P.W. 6 Sidharaya Loni reached police station Mangalweda on 13-11-1991 at about 3.15 a.m. and he commenced writing the FIR immediately on the narration given by Sidharaya Loni. We may mention that the evidence on record shows that the distance between the place of the incident and police station Mangalwedha where the FIR was lodged is about 22 kms. The circumstance that the FIR was lodged within 7 hours of the incident taking place although the police station is at distance of 22 kms. speaks volumes in favour of the truthfulness of the prosecution case. The evidence of the three injured witnesses also amply explains as to why there was a time lag of about 7 hours in lodging the FIR. The evidence of Sidharaya Loni P.W. 6 is to the effect that after the incident he ran to village Chikalgi, where he contacted Ishwarappa Birajdar and Sangappa Ramchandra Birajdar. The evidence on record shows that village Chikalgi is at a distance of about 1 1/2 kms. from the place of the incident. From village Chikalgi he along with Ishwarappa Birajdar Sangappa Ramchandar and 5 to 10 other persons came to the place of the incident and after seeing the dead body. They again came back to village Chikalgi. Then Sangappa Ramchandra Birajdar went to Bablad to arrange for a jeep. After he had brought the jeep to village Chikalgi, the three victims, Ishwarayya and he on the same came to police station Mangalwedha where the FIR was lodged. All this must have taken a couple of hours. In such a background the lodging of FIR at 3.15 a.m. on 13-11-1991 shows that it was lodged without any delay. In our view, in the circumstances mentioned above, the FIR was lodged promptly.
For the aforesaid reasons, we find the claim of three injured witnesses viz. Sangappa Birajdar, Sidharaya Loni and Digambar Pawar, P.Ws. 1, 6 and 11 that they witnessed the incident to be probable and truthful.
In our view, in a criminal case, the testimony of the injured witnesses corroborated by the medical evidence, by itself is a sufficient and sound basis, in fact the best basis, for convicting accused person because, injuries guarantee the presence of such witnesses on the place of incident and once that is ensured, the limited question which remains is whether they are credible or not ? If the Court finds the evidence of such witnesses to be credible on the substratum of the prosecution case, it should accept it unflinchingly. It is only where the testimony of such witnesses is found incredible and untrustworthy vis-a-vis the core of the prosecution case that it should be discarded. This norm of appreciation of the evidence of injured witnesses is based on the trite that injuries only guarantee their presence but, do not ensure their truthfulness and no Court ever convicts accused persons unless the evidence of witnesses is truthful and inspires confidence, on the material aspects of the prosecution case.
We may mention that at the pointing out of appellant Basanna Hattali, a blood-stained axe and seven sticks were recovered from his own house on 20-11-1991. We may also mention that the axe was sent to the Chemical Analyst and he found human blood on it. In support of this recovery, the prosecution examined P.S.I. Pawar P.W. 19 and P.W. 2 Shankar Gavli. We have been taken through their evidence and we find the same to be truthful and reliable. These witnesses had no malice or ill-will against appellant Basanna Hattali. They denied the defence suggestion that these recoveries were spurious.
The only question which perturbs us is as to whether all the 13 appellants participated in the incident or there is a possibility of a lesser number participating in it. We now propose to decide this question.
We would like to emphasise that in riot cases, courts only record/sustain a conviction of those accused persons against whom there is cogent and reliable evidence with respect to specific roles played by them. This is not a rule of law but only one of prudence based on the common experience that there is a tendency on the part of witnesses to falsely rope in accused persons in such cases. In riot cases in the absence of cogent and reliable evidence of witnesses regarding the specific parts played by accused persons, mere nomination of accused persons in the FIR and in statements of witnesses recorded in the trial court would not be a safe basis for either recording or for sustaining the conviction.
It is in this background that we propose to individually examine the cases of each of the appellants.
We would first like to take up the cases of appellants Basanna Hattali, Malku Bhimraya Hattali, Tamarayya Nigonda Patil and Mallesha Nigonda Patil. The allegation against Basanna Hattali is that he assaulted the deceased with axe and against the others it is alleged that they assaulted the deceased with sticks. All the three witnesses during trial have specifically deposed to this effect. The medical evidence also probabilises the account of the eye-witnesses inasmuch as the autopsy surgeon found injuries attributable to axe and sticks on the dead body of the deceased. We have no hesitation in sustaining their convictions and sentences.
Similarly, as regards appellants Chandrakant Umrani, Dundeppa Shivappa Umrani and Mohan Baliram Koli, there is over-whelming ocular account in which the specific part played by each of these appellants has been detailed out. PW 6 Sidharaya Loni has stated that appellant Chandrakant Umrani with a handle of axe, Dundeppa Umrani and Mohan Koli with sticks assaulted him.
PW 1 Sangappa Birajdar also corroborates PW 6 Sidharaya Loni with respect to the specific role of these three appellants.
The medical evidence corroborates the factum of participation of the appellants Chandrakant Umrani, Dundeppa Umrani and Mohan Koli in the incident for injuries attributable to sticks were found on the person of PW 1 Sangappa Birajdar and PW 6 Sidharaya Loni. Taking the overall circumstances into consideration, we hold that these three appellants have also been correctly convicted by the learned trial Judge.
We also find that regarding the specific parts played by appellants Sangappa Hattali, Pandurang Nikam and Kallappa Hattali, there is credible ocular account. PW 11 Digambar Pawar has stated that these appellants assaulted him by sticks.
PW 1 Sangappa Birajdar and PW 6 Sidharaya Loni both in their statements recorded in the trial court have corroborated PW 11 Digambar Pawar with respect to the specific roles of these persons.
Assurance is lent to the participation of these three appellants by the medical evidence inasmuch as injuries attributable to sticks were found on the person of PW 11 Digambar Pawar.
Hence in our view it would also be safe to sustain the conviction of these three appellants.
The question which remains is as to whether there is sufficient evidence against appellants Vithal Nikam, Malkanna Birajdar and Laxman Hatalli.
So far as Vithal Nikam and Malkanna Birajdar are concerned the specific role assigned to them is of assaulting PW 1 Sangappa Birajdar. However, in his statement recorded under S. 161, Cr.P.C. he (PW 1) did not state that these appellants assaulted him and when he was confronted with the aforesaid omission he replied that he had stated therein that these two appellants assaulted him with the sticks. However, we are not prepared to believe him because the Investigating Officer P.S.I. Pawar PW 19 admitted in his cross-examination that PW 1 Sangappa Birajdar in his statement under S. 161, Cr.P.C. did not state that these two appellants assaulted him with sticks.
Similarly, PW 6 Sidharaya Loni in his statement in the trial Court stated that Vithal Nikam and Malkanna Birajdar assaulted Sangappa Birajdar with sticks but, in his statement recorded under S. 161, Cr.P.C. we find that he has not mentioned the fact that Vithal Nikam assaulted Sangappa Birajdar with sticks. When he was confronted with the aforesaid omission, he stated that he had mentioned it to the Investigating Officer that Vithal Nikam also assaulted Sangappa Birajdar with sticks. However, we are not inclined to believe this because, the Investigating Officer PSI Pawar candidly stated in the trial Court that Sidharaya Loni in his statement under S. 161, Cr.P.C. did not state that Vithal assaulted Sangappa Birajdar.
The third eye-witness Digambar PW 11 in his statement recorded in the trial Court gives no specific role of assault either to Vithal Nikam or to Malkanna Birajdar.
As mentioned earlier in riot cases, the safer course is to only convict those accused persons to whom specific roles have been assigned by the eye-witnesses provided their evidence is consistent at various stages. In our view the ocular evidence against appellants Vithal Nikam and Malkanna Birajdar is not consistent and hence, it would not be safe to sustain the conviction of these appellants. In our judgment, these appellants may or may not have participated in the incident. Since we are not in a position to conclude with definitiveness either way the safer course would be to give them the benefit of doubt.
We are now left with the case of appellant Laxman Hattali. It is true that two of the eye-witnesses viz. PW 1 Sangappa Birajdar and PW 6 Sidharaya Loni have specifically stated in their depositions in the trial Court that this appellant assaulted them with sticks but, this fact has not been mentioned by them in their statements recorded under S. 161, Cr.P.C. When these witnesses were confronted with this omission in their aforesaid statements, they replied that they had mentioned to the Investigating Officer that Laxman Hattali assaulted them with sticks. However, the Investigating Officer PSI Pawar, PW 19 candidly admitted in his cross-examination in the trial Court that these witnesses did not mention the aforesaid fact to him. In this view of the matter, we are inclined to believe the Investigating Officer.
In normal course like appellants Vithal Nikam and Malkanna Birajdar we would also have given this appellant the benefit of doubt. However, we regret that the same would not be possible because there is some intrinsic reliable evidence against him to which we now propose to refer.
The appellant was arrested on 15-11-1991 by PSI Pawar and was found to be wearing a blood-stained shirt. The report of the Chemical Analyser shows that there was human blood on the shirt. We have been taken through the evidence of the two eye-witnesses of recovery, viz., PSI Pawar PW 19 and PW 4 Ramchandra Phatdare. Their evidence in our view inspires implicit confidence. Learned counsel for the appellant could not point out any reason to us for rejecting the same.
This circumstance was put to the appellant in his statement recorded under S. 313, Cr.P.C. and apart from weakly denying it he could not offer any explanation as to how this shirt came to be stained with blood.
In our view the prosecution has been able to explain as to how the shirt of the appellant came to be stained with blood. The evidence on record shows that during the course of the incident the appellant came in close contact with the three injured eye-witnesses viz. PW 1 Sangappa Birajdar, PW 6 Sidharaya Loni and PW 11 Digambar Pawar while he was assaulting them. Hence it was both natural and probable for the shirt of the appellant to have got stained with blood.
In our view the ocular account coupled with the aforesaid recovery of blood stained shirt from the person of the appellant, within 2-1/2 days of the incident, squarely brings home his guilt in the instant case. In our view the learned trial Judge acted correctly in convicting the appellant.
Mr. Shirodkar learned counsel for the appellants made a number of submissions before us. He firstly contended that the FIR was lodged after an inordinate delay. In paragraph 16 of our judgment we have already given the reasons as to why the FIR cannot be stigmatised as belated. Hence this submission of Mr. Shirodkar is rejected.
Secondly Mr. Shirodkar vehemently contended that the conduct of the eye-witnesses, PW 1 Sangappa Birajdar, the real brother of the deceased and PW 6 Sidharaya Loni is not disclosing the incident either to the son of the deceased or to the wife of the deceased or to any other family member shows that they did not see the incident and their injuries are manufactured.
We regret that we do not find any substance in the aforesaid contention of Mr. Shirodkar. Both PW 1 Sangappa and PW 6 Sidharaya Loni in cross-examination, in the trial Court, have said that after the incident they had asked Chandramappa Birajdar to inform the family members of the deceased about the incident. Since they had asked him to inform the family members of the deceased, they must have assumed that the family members of the deceased must have already been informed by him and therefore, in our view there is nothing unnatural or abnormal if these witnesses did not care to inform either the son of the deceased or the wife of the deceased about the incident.
We may also mention that these two witnesses might not have thought it necessary to inform the family members of the deceased for two other reasons; firstly because on hearing from them about the death of the deceased, understandably the son and the wife of the deceased would have broken down and this obviously, these witnesses must not have wanted to happen. Secondly it is well known that in small villages such news spreads very fast and these witnesses may have thought that apart from Chandramappa Birajdar from other sources also the family members of the deceased must have come to know about the incident. Consequently, we do not find any merit in the aforesaid contention of Mr. Shirodkar.
Thirdly Mr. Shirodkar contended that the injuries of the injured appear to be manufactured. We have dealt with this aspect in paragraphs thirteen and fourteen of our judgment. In our view the circumstances mentioned hereinafter demonstrate that the aforesaid submission is without merit :-
(a) The injuries of the three witnesses were examined with 12 hours of the incident;
(b) Each of the victims had at least one injury on vital part of his body;
(c) PW 1 Sangappa Birajdar had sustained a couple of fractures;
(d) No suggestion was given to any of the three injured witnesses that these injuries were either self-inflicted or got manufactured through a third agency; and
(e) No suggestion was given to Dr. Korulkar or to Dr. Gaikwad that these injuries could either be manufactured by the witnesses themselves or could have been manufactured through a third agency.
Hence, this contention of Mr. Shirodkar is also rejected.
Mr. Shirodkar also contended that the circumstance that with respect to the incident, the minutest details were furnished by the eye-witnesses is a pointer to the fact that they have been tutored by the prosecution. He submitted that when an assault is being launched on the witnesses their normal conduct would have been to protect their faces and head region and not to minutely watch what was happening. We may mention that no hard and fast rule can be laid down. Some persons observe what is happening in detail and are courageous enough not to conceal their faces and like to recognise their assailants. Since these three witnesses were injured they must have come in close contact with appellants and therefore, it was possible and probable for them to notice minutely the details of assault which was being launched on them and the deceased. Hence we also reject this submission of Mr. Shirodkar.
Mr. Shirodkar also contended that PW 1 Sangappa and PW 6 Sidharayya Loni were actually medically examined on 15-11-1991 and not on 13-11-1991, as alleged by the prosecution. We regret that we cannot accede to this contention of his. PW 18 Dr. Korulkar categorically stated in his examination in chief that he examined both these victims on 13-11-1991 between 10 a.m. and 10.30 a.m. He could not be shattered on this point during cross-examination. We may also mention that no suggestion of any animosity from the side of the appellants has been made to Dr. Korulkar. In our view in the absence of any malice or grudge on his part towards the appellants he would not have stated that he examined them on 13-11-1991, if he had actually examined them on 15-11-1991.
Mr. Shirodkar also contended that appellants Laxman Hanumant Hattali, Vithal Krishna Nikam and Malkanna Birajdar be given the benefit of doubt. We have dealt with this aspect in paragraphs 23 to 25 of our judgment. We have already given appellants Vithal Nikam and Malkanna Birajdar the benefit of doubt. We have not given appellant Laxman Hattali the benefit of doubt and we have indicated our reasons for doing so in paragraph 25 of our judgment.
Finally, Mr. Shirodkar contended that the sentence awarded to appellants Chandrakant Hattali, Laxman Hattali, Dundeppa Shivappa Umrani, Pandurang Nikam, Mohan Koli, Sangappa Hatali, Kallappa Hattali (appellants 2, 3, 4, 6, 7, 9 and 11 respectively) is too severe and calls for reduction.
We have given our anxious consideration to the aforesaid submission and the same, considering the totality of circumstances, in our judgment, appears to be devoid of substance. Considering the over-all circumstances, in our view, the sentences awarded to these appellants cannot be said to be severe. Hence the aforesaid submission of Mr. Shirodkar fails.
Pursuant to the above discussion this appeal is partly allowed and partly dismissed. The appeal of appellants Vithal Krishna Nikam (appellant No. 5) and Malkanna Annarayya Birajdar (appellant No. 10) is allowed. They are given benefit of doubt. Their convictions and sentences on all the courts are set aside. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
The appeal of appellants Basanna Nigonda Hattali, Chandrakant Murgyappa Umrani, Laxman Hanmant Hattali, Dundeppa Shivappa Umrani, Pandurang Jagannath Nikam, Mohan Baliram Koli, Malku Bhimraya Hattali, Sangappa Bhimraya Hattali, Kallappa Ramchandra Hattali, Tamrayya Nigonda Patil and Mallesha Nigonda Patil is dismissed. Their convictions and sentences on various counts are confirmed.
Appellants Basanna Nigonda Hattali, Malku Bhimraya Hattali, Tamrayya Nigonda Patil and Mallesha Nigonda Patil are in jail. They shall remain there till they serve out their sentences.
We are informed that appellants Chandrakant Murgyappa Umrani, Laxman Hanmant Hattali, Dundeppa Shivappa Umrani, Pandurang Jagannath Nikam, Mohan Baliram Koli, Sangappa Bhimraya Hattali and Kallappa Ramchandra Hattali are on bail. Let them be forthwith taken into custody to serve out their sentences.
In case an application for certified copy of the judgment is made by the counsel for the parties the same shall be issued at an early date.
Order accordingly.