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CASE NO.: Appeal (crl.)  9 of 2001

PETITIONER: Abdul Rashid Abdul Rahiman Patel and Ors

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 10/07/2007

BENCH: B.N. AGRAWAL P.P.NAOLEKAR & DALVEER BHANDARI

JUDGMENT: JUDGMENT

WITH CRIMINAL APPEAL NO. 504 OF 2000 AND CRIMINAL APPEAL NO. 60 OF 2001

B.N. AGRAWAL, J. 1.      Seventeen accused persons were charged and tried for  offences under Sections 147, 148, 302/149, 302 read with Section  34, 307/149, 326/149 and 324/149 of the Indian Penal Code [‘IPC’  for short] and by judgment rendered by the Trial Court they were  acquitted of all the charges. Against the order of acquittal an appeal  was preferred by the State of Maharashtra before the High Court  during the pendency of which Abbas Yunus Sonde [A-8] and Ibrahim  alias Abdul Rahman Mohammad Kasim Patel [A-9] died, as such,  appeal against them abated. The order of acquittal has been  confirmed by the High Court in relation to seven accused persons  viz., Qasim Hasanmiya Bedekar [A-7], Iqbal Abbas Sonde [A-12],  Sharfuddin Abdul Rahiman Patel [A-13], Usman Hasanmiya Bedekar  [A-14], Hasanmiya Dhondumiya Bedekar [A-15], Hajirabai w/o Daud  Patel [A-16] and Julekhabi w/o Liyakat Sonde [A-17]. So far as,  Abdul Rashid Abdul Rahiman Patel [A-5], Siraj Abbas Sonde [A-6]  and Idrus Yunus Patel [A-11] are concerned, their acquittal has been  confirmed in relation to the charge under Section 302 IPC but they  have been convicted under Section 148 IPC and sentenced to  undergo rigorous imprisonment for a period of two years and to pay a  fine of Rs. 3,000/- each, in default to undergo rigorous imprisonment  for a further period of six months. They have been further convicted  under Section 324/149 IPC and sentenced to undergo rigorous  imprisonment for a period of two years and to pay a fine of Rs.  3,000/- each, in default to undergo rigorous imprisonment for a  further period of six months. Both the sentences have been ordered  to run concurrently. So far as Abdul Latif Hasanmiya Bedekar [A-1],  Liyakat Abbas Sonde [A-2], Shaikhali Kasam Karjikar [A-3], Usman  Abdul Rahiman Patel [A-4] and Daud Abdul Rahiman Patel [A-10] are  concerned, they have been convicted under Section 302 read with  Section 34 IPC and sentenced to undergo imprisonment for life.  These accused persons have been also convicted under Sections 148  and 324/149 IPC but, no separate sentence has been awarded.  2.      Prosecution case, in short, was that one Mariam, daughter of  Usman Hasanmiya [PW 19] had love affair with Qasim Hasanmiya  Bedekar [A-7]. On 06.08.1982 Mariam disappeared from the village  along with A-7. They proceeded to Bombay and got married on  15.08.1982. They returned to village Halbudruk six days before the  incident. There was tension between the two groups in the village,  i.e., Bedekars (accused persons) and Jalgaonkars (the members of  prosecution party) on account of their said love affair but the matter  was settled.

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3.      Further prosecution case was that on 27.8.1982 Salma  Usman Dhanse [PW-12] had spread rice on the road in front of her  house for drying. She had asked her daughter Parvin to sit and  watch the same. Parvin, however, went out for playing which  annoyed Salma and she scolded Parvin. Parvin sulked and sat in the  sun. Salma told her that like the rice she would also get dried up  which would be good for her as her fat would melt in that way.  Hajirabai [A-16], who was living in the vicinity, thought that Salma  had made those remarks against her, as such she picked up a  quarrel with Salma. On 28.8.1982 when Usman Abdul Rahiman  Dhanse [PW-3], husband of Salma, was coming to his house, A-16  accosted him and conveyed her grievance against Salma. PW-3  explained to her that those remarks were directed towards Parvin  and not her. As A-16 was not satisfied with the explanation, A-4, A-5,  A-12 and A-13 came to the house of PW-12 and abused her and her  husband [PW-3]. When Nijam Malang Mukadam [PW-4], brother of  PW-12, enquired as to why they were quarrelling, the four accused  persons also abused and threatened him.  PW-3 and PW-4 went to  Ismail (since deceased) for advice as he was an elderly person in the  village. Some other prosecution witnesses were also sitting in the  house of Ismail who advised PW-3 and PW-4 not to quarrel but to  lodge a complaint with the police. Upon their request Ismail  accompanied them to the police station and all the three went on  cycles. On their way to the police station they took Hussain Karjikar,  brother-in-law of PW-4, along with them. Hussain advised PW-3 and  PW-4 to go to Khalapur Police Station and lodge a complaint.  Hussain and Ismail waited on the road. PW-3 and PW-4 reached the  police station and lodged a First Information Report [’FIR’ for short]  against A-4, A-5, A-12 and A-13 on the statement of PW-3. In view of  the said case, Head Constable-S.D. Pawar [PW-37], in-charge of the  police station, sent Jamadar\026Pasthe by jeep to village Hal Budruk to  bring the accused persons to the police station. A-4, A-5, A-12 and  A-13 were brought to the police station by police jeep. The other  accused persons, i.e., A-1, A-3, A-6, A-9 and A-11 also arrived at the  police station. The police warned the accused persons not to commit  breach of peace. A-9, who was also police Patel of the village,  promised to bring both the parties to the police station at 7 a.m. next  day. The Police obtained a written undertaking from the parties to  the above effect. 4.      According to the prosecution, accused persons left the police  station by auto rickshaw whereas PW-3 and PW-4 on their cycles in  the midnight of 28-29.8.1982 and on their way they took Ismail with  them. By about 12:00 or 12:30 of the same midnight, the relatives of  Ismail became concerned because he did not return to the village.  Therefore, Badruddin Pechker, Ibrahim and Yunus Jalgaonkar and  others decided to go and search for him. They reached hotel Delhi  Durbar and decided to have tea and wait there for Ismail. PW-3 and  PW-4 along with Ismail reached hotel Delhi Durbar where Badruddin  and all others were waiting. All of them had tea in the hotel and left  for the village between 2:00 to 2:30 in the midnight. PW-4 was ahead  of others, since he had to go to Bombay for purchasing fish in  connection with his business. Ismail was following him. Usman  Yunus and Badruddin lagged behind for smoking. All the accused  persons armed with swords, iron bars and sticks were waiting near a  well for the return of the Jalgaonkars, i.e., the members of  prosecution party. A-1 to A-5, A-8 and A-10 were armed with swords.   When PW-4 arrived near the tamarind tree, the accused persons  stopped and blamed him for going to the police station and lodging a  case. The accused persons thereafter became abusive and started  hurling harsh words against him. PW-4 was on his cycle. A-1 tried to  hit PW-4 in his stomach with the sword he was holding. PW-4  avoided the blow but was hit on the left side of the abdomen. At this  stage Ismail was seen coming behind him. Therefore, the accused  persons turned towards Ismail. In the meanwhile, PW-4 escaped and  reached the house of Ismail, called Abdul Qadir, son of Ismail, and

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told him that Ismail was being beaten up by the accused persons.  Another son of Ismail, Shaikh Mohammad, also heard PW-4 saying  so.  Ismail came to be attacked near the tamarind tree. A-1, A-2, A-3,  A-4 and A-10 dealt sword blows on the head of Ismail. PW-4, while  going to his house, met PW-12 on the way who in turn enquired  about her husband [PW-3] as he had not returned along with him.  Having learnt about the incident from PW-4, she started towards the  place of occurrence. Likewise, PW-2 as well as Yusuf proceeded  towards the place of occurrence. While Ismail was being hit, Suleman  reached near him and tried to save him from the accused persons. A- 1, A-2, A-3, A-4 and A-10 struck Suleman with their swords over his  head. Some other accused also joined them. The prosecution  witnesses, who tried to intervene, were also assaulted. By this time  Yusuf also reached there who was also attacked by A-2, A-3, A-5 and  A-10 as a result of which he fell down. In the meantime PW-12 also  reached there and was also assaulted by some of the accused.  When  this was going on, PW-2 thought of reporting the matter to the police  and accordingly, he came to the Bombay-Pune road, boarded a taxi,  reached Khalapur Police Station and informed the Station In-charge,  Shivaji Dhondu Pawar [PW-37] at 2:45 in the night that A-1 was  moving with a sword in the village and was indulging in massacre  and there was great commotion in the village.  Sub-Inspector,  Madhav Bajirao Malve [PW-39], who was present in the police  station, left for the place of occurrence where statement of PW-2 was  recorded at 3:15 in the midnight, on the basis of which an FIR was  drawn up at the police station on 29.08.1982. 5.      Police after registering the case took up investigation and on  completion thereof submitted charge sheet, on receipt whereof the  learned Magistrate took cognizance and committed the seventeen  accused persons to the Court of Sessions to face trial. 6.      Defence of the accused persons was that they were innocent,  had no complicity with the crime and no occurrence much less the  occurrence alleged had taken place. According to the accused  persons, some of them and members of prosecution party had  received injuries in some other manner of occurrence at some other  place, but they were falsely implicated in the case on hand. 7.      During trial the prosecution examined several witnesses and  on conclusion of the same, Trial Court acquitted all the accused  persons but on appeal being preferred High Court partly reversed the  order of acquittal and convicted eight accused persons as stated  above. Criminal Appeal No. 9 of 2001 has been filed by A-5, A-6 and  A-11 and Criminal Appeal No. 504 of 2000 by A-1, A-2, A-3, A-4 and  A-10, whereas, Criminal Appeal No. 60 of 2001 has been filed by the  informant in which leave has been granted in relation to that portion  of judgment of the High Court whereby it has confirmed acquittal of  A-5, A-6 and A-11 in relation to the charge under Section 302 IPC. 8.      Shri Shekhar Naphade, the learned senior counsel appearing  on behalf of the appellants in Criminal Appeal No. 504 of 2000, in  support of the appeal, submitted that the prosecution failed to prove  its case and participation of the appellants in the crime by credible  evidence. Shri S.K. Aggrawal, learned senior counsel appearing on  behalf of the appellants in Criminal Appeal No. 9 of 2001, submitted  that the High Court was not justified in convicting A-5, A-6 and A-11  under Sections 148 and 324/149 IPC. Learned counsel then  submitted that out of these appellants, A-5 and A-6 have already  undergone the sentences imposed upon them and have been released  from custody, but so far as A-11 is concerned, he has remained in  custody for a period of 15 months, as such the sentences of  imprisonment awarded against him should be reduced to the period  already undergone. 9.      On the other hand, Shri Ravindra Keshavrao Adsure, learned  counsel appearing on behalf of the State of Maharashtra, submitted  that the High Court was quite justified in reversing the order of  acquittal as the same was perverse and convicting the appellants of  Criminal Appeal No. 504 of 2000 and Criminal Appeal No. 9 of 2001.  

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Shri A.K. Ganguli, learned senior counsel appearing on behalf of the  complainant-appellant in Criminal Appeal No. 60 of 2001 submitted  that no interference is called for with the conviction of accused  persons and the High Court was not justified in affirming the  acquittal of A-5, A-6 and A-11 of the charge under Section 302 IPC. 10.     In the present case the prosecution examined thirteen  eyewitnesses, out of whom, eleven were injured witnesses. The  witnesses can be put into four categories. In the first category the  prosecution examined Abdul Kadir Ismail Jalgaonkar [PW-6], Mohd.  Swale Yusuf Jalgaonkar [PW-13] and Badrudin Pechkar [PW-14].  These witnesses claimed that they received injuries during the course  of the occurrence but in support of the same no medical evidence has  been produced. As such their evidence has been rightly discarded by  the Trial Court as well as the High Court. 11.     In the second category Nizam Mukadam [PW-4], Mohd. Hanif  Suleman [PW-5] and Abdul Latif Lalumiya Jalgaonkar [PW-9] were  examined, who also claimed to be injured eyewitnesses and in  support of their claim medical evidence has been produced, but the  Trial Court, upon threadbare discussion of the evidence, came to the  conclusion that their evidence was not corroborated by medical  evidence produced by the prosecution, as such, it was not safe to  place reliance thereupon. We have been taken through the evidence  of these witnesses and we are of the view that the Trial Court was  quite justified in not relying upon the evidence of these witnesses  and the High Court was not right in placing reliance upon them. 12.     In the third category Yunus Ismail Jalgaonkar [PW-7],  Shaikh Mohd. Lalumiya Jalgaonkar [PW-8], Abdul Latif Abdul  Rahaman Dhanse [PW-11], Salma Usman Dhanse [PW-12] and  Usman Hasanmiya Jalgaonkar [PW-19] were examined, who were  injured witnesses and their evidence is corroborated by medical  evidence. PW-7 is son of deceased Ismail. He stated that A-4 and A- 10 assaulted deceased Ismail with sword on the head and A-1 and A- 4 inflicted injuries with sword on the head of deceased Suleman. A-6  inflicted two blows with iron bar on the shoulder of this witness,  whereas A-10 inflicted injury with sword on his shoulder. The  evidence of this witness of inflicting sword injuries upon deceased  Ismail, deceased Suleman and this witness is corroborated by  medical evidence. His evidence in Court is consistent with statement  made by him before the Police and supported by medical evidence. As  such, we do not find any ground to disbelieve him. 13.     Next witness was PW-8, who is brother of deceased Yusuf. He  stated that A-2, A-3 and A-10 inflicted injuries with sword upon  deceased Yusuf. The witness further stated that when he tried to  intervene, A-4 asked others to finish him and thereupon A-3, A-5  and A-10 assaulted him with sword whereas A-9 [against whom  appeal abated before the High Court on account of his death]  inflicted injury upon him with iron bar. The evidence of this witness  is supported by the medical evidence of deceased Yusuf as well as  this witness. His statement in Court is in conformity with the  statement made by him before the Police. As such, it is not possible  to reject his evidence, especially, when the same is corroborated by  medical evidence. 14.     Another injured eyewitness was PW-11, who is also related to  the members of the prosecution party. He stated that A-1 and A-2  inflicted injuries with sword upon deceased Yusuf and others  assaulted him with iron bar. He further stated that A-5 assaulted  this witness with a sword. The medical evidence of deceased Yusuf  and that of PW-11 corroborates the statement of this witness. His  evidence is not only supported by his statement made before the  Police but medical evidence as well. 15.     The next injured eyewitness was PW-12. Deceased Yusuf was  husband of the sister of this witness. She stated that A-1, A-2 and A- 10 assaulted deceased Yusuf with sword. This witness was assaulted  on the head by A-8 [against whom appeal abated before the High  Court on account of his death] and A-15 since acquitted. The

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evidence of this witness is also supported by her statement made  before the Police as well as medical evidence. 16.     Last witness in this category was PW-19, who is brother of  deceased Ismail. He stated that A-1, A-2 and A-3 assaulted deceased  Yusuf with sword. The witness further stated that when he tried to  intervene he was assaulted with iron bar by A-9 [against whom  appeal abated before the High Court] and A-11. The statement of this  witness is consistent with his statement made before Police and  corroborated by medical evidence of deceased Yusuf and this  witness. 17.     The learned counsel for the appellants submitted that no  reliance should be placed upon the evidence of PWs 7, 8, 11, 12 and  19 as all of them are related to members of the prosecution party. It  is well-settled that in a criminal trial merely because a witness is  interested his evidence cannot be discarded if the same is otherwise  found to be credible. In the present case, as we have come to the  conclusion that the evidence of these witnesses is consistent and  corroborated by medical evidence it is not possible to discard the  same on the ground that they were interested persons. 18.     In the last category Mohd. Usman Mandlekar [PW-10] and  Usman Mohd. Kasim Duduke [PW-15] were examined, who were  independent eyewitnesses, though not injured. PW-10 stated that A- 2, A-3 and A-10 inflicted injuries upon the head of deceased Yusuf  with sword, A-6 with a stick and A-9 [whose appeal abated before the  High Court on account of his death] with iron bar. The evidence of  this witness is corroborated by medical evidence of deceased Yusuf.  He was examined by the Police at the earliest point of time, i.e., on  the next day of the occurrence. The witness supported the  prosecution case in all material particulars. His statement in Court is  consistent with statement made before the Police and the same is  supported by medical evidence of deceased Yusuf, as such we do not  find any reason to disbelieve him. 19.     Next independent eyewitness was PW-15. He stated that A-2,  A-3, A-4 and A-10 assaulted deceased Ismail with sword. He further  stated that A-1 and A-4 inflicted injuries with sword upon deceased  Suleman. This witness was examined on 31.8.1982, i.e., only two  days after the occurrence. His evidence in Court is consistent with  statement made by him before the Police and medical evidence of  deceased Ismail and Suleman. The witness has also supported the  prosecution case in all material particulars and we do not find any  ground to discard him. 20.     Shri Shekhar Naphade, learned senior counsel submitted  that in the present case some of the accused persons received  injuries and the prosecution failed to explain the same. It is true that  A-1, A-2, A-3, A-4, A-5, A-12 and A-13 were examined by Dr. Shivaji  Tukaram Barphe [PW-28] on 30.8.1982 who found injuries on their  person. PW 28 stated that all the injuries found on the aforesaid  accused persons were simple and minor. He further stated that the  injuries were possible by accidental blows from accused upon  themselves while they were attacking some other persons. From the  aforesaid statement of PW-28 it cannot be said that the minor and  simple injuries on the accused persons have not been explained by  the prosecution. It is well-settled that if injuries on the defence are  not explained by the prosecution, the same may be taken to be a  ground to discard the prosecution case, in case the truthfulness of   prosecution case is otherwise doubted. But, in cases like the present  one, where there is consistent evidence of the injured eyewitnesses  apart from evidence of independent eyewitnesses, even if it is  assumed that the prosecution has failed to explain the minor and  simple injuries on the defence, the same cannot be taken to be a  ground to reject the testimony of such witnesses. 21.     Learned counsel for the appellants next submitted that on  the basis of statement of PW-2 Station Diary Entry [Exhibit 72] was  made at the police station in the night of the occurrence at 2:45 a.m.  which was the earliest version of the occurrence wherein neither

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names of any of the three deceased persons nor names of any of the  injured persons nor names of any of the accused persons, excepting  A-1, were mentioned, and after due deliberation at 3:15 a.m. an FIR  was lodged, which is Exhibit 27, in which names of all the accused  persons were mentioned.  From the Station Diary Entry [Ex. 72], it  appears that there was some commotion in the village and in order to  control the situation PW-2 rushed to the police station and he had  not seen any occurrence. Undisputedly, by the time PW-2 went back  to the village the entire occurrence was over. It appears that this  witness had not seen any of the accused persons assaulting either  any of the deceased persons or any of the injured witnesses and the  claim in the FIR [Ex. 27] that he witnessed the actual assault is an  exaggeration. His evidence in Court that he witnessed the assault on  deceased Suleman and Ismail besides injured witnesses is also an  exaggerated version, as such the same cannot be relied upon. It is  true that names of the accused persons other than A-1 were not  mentioned in the Station Diary Entry [Ex. 72], which was earliest  version of the occurrence, PW 2 cannot be said to be an eyewitness to  the actual assault and his evidence to this effect is not trustworthy,  but the same cannot be a ground to reject consistent evidence of  injured eyewitnesses and independent eyewitnesses, more so, when  their evidence is corroborated by medical evidence of the three  deceased persons and the injured eyewitnesses. 22.     So far as the convictions of A-5, A-6 and A-11 under Sections  148 and 324/149 IPC are concerned, the High Court has placed  reliance upon the evidence of PWs 7, 8, 11 and 19. So far as A-5 is  concerned, he has been named by two injured eyewitnesses viz., PWs  8 and 11. A-6 has been named by injured eyewitness PW 7. A-11 has  been named by another injured eyewitness PW 19. These witnesses  have made consistent statements and their evidence is corroborated  by medical evidence. In our view High Court was quite justified in  convicting them under Sections 148 and 324/149 IPC. As A-11 has  remained in custody for a period of 15 months, in our view, ends of  justice would be met in case the sentences of imprisonment awarded  against him under Sections 148 and 324/149 IPC are reduced to the  period already undergone. So far as charges under Section 302/149  IPC and 302 read with Section 34 IPC framed against A-5, A-6 and A- 11 are concerned, we are of the view that the order of acquittal of  these appellants of the aforesaid charges recorded by the Trial Court  cannot be said to be perverse as such the High Court was quite  justified in refusing to interfere with the same.  23.     In view of the foregoing discussions we are of the view that  the High Court was quite justified in convicting A-1, A-2, A-3, A-4, A- 5, A-6, A-10 and A-11 but the sentences of imprisonment awarded  against A-11 should be reduced to the period already undergone.  24.     In the result, Criminal Appeal No. 9 of 2001 is allowed in part  and while maintaining convictions of appellants of this appeal, the  sentences of imprisonment awarded against A-11 are reduced to the  period already undergone. A-11, who is on bail, is discharged from  the liability of bail bonds. Criminal Appeal No. 504 of 2000 is  dismissed, bail bonds of appellants of this appeal, who are on bail,  are cancelled and they are directed to be taken into custody forthwith  to serve out the remaining period of sentence. Criminal Appeal No.  60 of 2001 is dismissed.