REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1641 OF 2007

HIMMAT SUKHADEO WAHURWAGH & ORS.  APPELLANTS  

VS.

STATE OF MAHARASHTRA                ...RESPONDENT  

J U D G M E N T

HARJIT SINGH BEDI, J.

1. This  appeal  is  directed  against  the  judgment  of  the  

Bombay High Court dated 24th April 2007 whereby the State  

appeal against acquittal against the judgment of the Additional  

Sessions  Judge,  Akola  has  been  allowed  and  the  accused  

convicted  and  sentenced  for  offences  punishable  under  

Section 302/149 of the IPC etc.  The facts are as under:

2. At about 4 p.m. on 11th June 1989 Babarao Kolhe, his  

brother Jaidev Kolhe and grandson Sanjay PW-1 residents of

village Panaj, went to plough their fields, about one-and-a half  

kilometers away from the village.  As they were returning home  

in their bullock cart, they were waylaid by the eight accused,  

variously armed with axes and sticks who attacked Babarao  

and Jaidev.  Sanjay escaped from the spot and reached home  

and informed his grandfather Namdeo Kolhe about what had  

happened, giving details of the injuries caused by each of the  

accused.  In the meantime, the bullock cart sans Babarao and  

Jaidev too returned to the residence in the village.  Namdeo  

Kolhe thereupon called his sons Dadarao and Wasudeo and  

alongwith  several  other  persons  went  in  search  and  found  

Babarao and Jaidev lying seriously injured in the field of one  

Vishwanath Akotkar.   It  is the case of the prosecution that  

Jaidev  made  a  dying  declaration  to  Dadarao  that  the  eight  

accused had beaten him and Babarao.  The two injured were  

thereafter  taken  homeward  and  as  the  party  entered  the  

village. Namdeo and the others received information that the  

accused were searching for them as well so that they too could  

be killed.  Dadarao and Wasudeo thereupon left the cart and  

returned home by a circuitous route.  Namdeo then left for the  

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house  of  the  Police  Patil  accompanied  by  his  grandson  

Bhimrao PW 4 and Deokabai PW 5 but he too was assaulted  

along the way by the accused.  Bhimrao rushed back home  

and narrated the incident to his mother Shantabai and to his  

father. The accused also threatened Deokabai that they would  

kill  her  as  well  on  which  she  made  a  hasty  retreat  to  her  

home.  Wasudeo then went to Karla to send a message to the  

Police at Akot on phone, but he could not get the connection  

on which the operator him to call the police at Anjangaonsurji  

Police Station.   The message was accordingly conveyed by the  

Anjangaonsurji  police  to  Akot  police  station  on  which  PSI  

Thombre recorded the message in the Daily  Diary and also  

informed Inspector Patil PW 14 about the incident. This police  

officer reached Panaj at about 1:00 a.m. and on enquiry found  

that  Babarao,   Jaidev  and   Namdeo  were  dead.  He  then  

recorded  the  statement  of  Dadarao  on  which  a  First  

Information Report under Section 302 r/w Section 34 of the  

Indian Penal Code was registered.  The Police also started on  

the investigation and sent the dead bodies for the post mortem  

examinations.   The  accused,  who  did  not  make  an  

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attempt to run away, were arrested from the village the very  

same day and on their disclosure statements, the weapons of  

offence  as  also  bloodstained  clothes  were  recovered.   On  

committal the Additional District Judge framed charges under  

Sections 147, 148 and 149 r/w Section 302 of the IPC against  

the accused.   The Trial  Court  in the course of a somewhat  

laboured judgment held that the deposition of Sanjay PW 1,  

the solitary eye witness to the murders of Jaideo and Babarao,  

could not be believed as his conduct belied his presence in as  

much that after reaching home he had hidden himself in the  

house of one Abgad and had not reported the matter to his  

neighbours. The Court also held that the graphic details of the  

injuries  caused  by  each  of  the  accused  made  his  story  

improbable. The statements of Dadarao PW 2, to whom Jaideo  

(deceased) had made a dying declaration and Wasudev PW 3  

naming the accused as their assailants were also discarded,  

on the premise that there were many improvements vis-à-vis  

their statements under Section 161 of the Cr.P.C. The Trial  

Court also observed that the witnesses were closely related to  

the deceased and to each other and as there appeared to be no  

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plausible motive for the murders and the delay in the lodging  

of the FIR were other factors which cast a serious doubt on the  

prosecution’s  story.   The  Trial  Judge  accordingly,  by  his  

Judgment dated 20th February 1991, acquitted the accused.  

On appeal  the  High Court  observed that  the  finding  of  the  

Court  that  the  eye  witness  account  was  unreliable  was  

erroneous, the more so as Sanjay, who was a witness to the  

first two murders, though a child, was absolutely reliable.  The  

Court also found that the testimonies of PW 4 Bhimrao, PW 5  

Deokabai and Anandrao PW 6 with respect to the assault and  

murder of Namdeo too were reliable and had to be accepted.  

The High Court also observed that the finding of the Additional  

Sessions  Judge  that  there  was  no  apparent  motive  for  the  

murders was,  on the face of  it,  unacceptable  as it  was the  

admitted  position that  in 1981,  Namdeo (deceased)  and his  

sons had been prosecuted for an attempt to murder Sukhdeo,  

father  of  accused  nos.  1  to  5  and had been convicted  and  

sentenced  to  rigorous  imprisonment  for  five  years  but  on  

appeal in the High Court, the sentence had been reduced to  

three years whereafter the accused had been released from jail  

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in February 1989.  The High Court, thus, deduced that the  

present incident, which took place on 11th June 1989 was a  

fall out of the incident of 1981 and had occurred about four  

months after the accused had been released from jail.   The  

Trial Court further held that the medical evidence given by Dr.  

Jaiswal PW 7 and the chemical examiners report corroborated  

the eye witness account. The Court also believed the statement  

of PW 2 Dadarao with respect to the dying declaration made by  

Jaideo.  Having recorded its findings on these basic issues, the  

High Court reversed the order and  judgment of acquittal and  

convicted  all  the  accused  for  offences  punishable  under  

Sections 147, 148 and 302 r/w 149 of the Indian Penal code  

and sentenced each of them as under;    two years rigorous  

imprisonment for the offence punishable under Section 147 of  

the Indian Penal Code, three years rigorous imprisonment for  

the offence under Section 148 and to imprisonment for life and  

a  fine  of  Rs.5,000/-    in-default  to  suffer  rigorous  

imprisonment for one year for the offence punishable under  

Section 302 r/w Section 149.  It is in this background that the  

matter is before us by way of Special Leave.  

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3. At the very outset, it has to be pointed out that the two  

warring  groups  belong  to  Village  Panaj,  live  in  the  same  

locality and belong to the same caste. They are also, within  

themselves, very closely related inter se. Namdeo (deceased),  

was  the  father  of  Babarao  and  Jaideo  (deceased)  whereas  

Dadarao PW 2, and Wasudeo PW 3 are his sons and PW 1  

Sanjay is the son of Babarao whereas Bhimrao PW 4 is the son  

of Dadarao aforesaid and Shantibai PW 10.  Likewise we see  

from  the  record  that  the  appellants  Himmat,  Siddhartha,  

Gautam, Anil and Sanjay Kumar are brothers; Waman- is an  

uncle of the above mentioned accused whereas Prakash and  

Suresh are his sons.  

4. In this background, Mr. R.S. Lambat, the learned counsel  

for the appellants has argued that the Trial Court on a minute  

examination of  the evidence had thought it  fit  to  record an  

order  of  acquittal,  a  view which was clearly  tenable  on the  

facts of the case, and the High Court was, thus, not justified in  

re-appreciating  the  evidence  and  arriving  at  a  different  

conclusion.   He  has  highlighted  that  an  accused  was  

presumed to be innocent till held guilty by a competent court  

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and this principle was immeasurably strengthened where the  

Trial Court had made an order of acquittal. There can be no  

quarrel  with  these  basic  propositions,  but  we  are  of  the  

opinion  that  the  evidence  in  the  case  suggests  that  the  

judgment of the Additional Sessions Judge was unjustified in  

the face of extremely credible evidence and was based on a  

complete misconception as to the evidence on record.  We are,  

therefore, of the opinion that the High Court was justified in  

interfering in the matter on a re-appreciation of the evidence.  

In this connection, we refer to the judgment in  Chandrappa  

and  others vs. State  of  Karnataka  (2007)  4  SCC  415  

wherein it has been observed that an Appellate Court has full  

authority to re-appreciate and re-consider the evidence in a  

case of acquittal barring a case where two views are possible  

on  the  evidence  and  one  favouring  the  accused  has  been  

taken. However where the judgment of the Trial Court is based  

on a complete misreading of the evidence and a view in favour  

of the accused was not  justified and only one view with regard  

to the culpability of the accused was possible, the High Court  

would be failing in its duty if it did not interfere.  Similar views  

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have been expressed in Swami Prasad vs. State of Madhya  

Pradesh  J.T.  2007  (4)  SC  337  ,   and  a  plethora  of  other  

judgments.  We are, therefore, of the opinion that interference  

by the High Court was called for in the circumstances.   

5. Mr. Lambat then argued that there was no motive for the  

triple murder as the earlier incident of 1981 had apparently  

been forgotten inasmuch that the relations between the parties  

had admittedly improved and they were on visiting terms.  It  

was then  submitted that the first two murders had been seen  

by  Sanjay  PW 1  but  his  presence  was  doubtful  as  he  had  

disappeared from the scene and hidden himself in the house of  

Abgad and had surfaced only the next morning, and thereafter  

narrated his story.  It has also been pleaded that the evidence  

of PW 4 Bhimrao another young child of about 13 years, PW 5  

Deokabai and Anandrao PW 6 who had witnessed the attack  

on Namdeo, could not be believed as the story projected by  

them that they had rushed into their houses after seeing the  

incident and had done little else could not be believed.  It has  

accordingly  been  emphasized  that  the  entire  eye  witness  

account was based on the testimony of close and interested  

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relatives of the deceased and though, the entire incident had  

happened either in the village itself  or just outside of it,  no  

independent  witness  had  come  forth  in  support  of  the  

prosecution.  It has been pointed out that in this background  

the  fact  that  the  FIR had been filed  belatedly  was a  factor  

which cast a serious doubt on the prosecution story.   

6. The  Counsel  for  the  respondent  State  has,  however,  

submitted that the motive for the incident was writ large on  

the  facts  of  the  case  and that  merely  because  the  primary  

witnesses Sanjay and Bhimrao were related to the deceased  

was no ground to disbelieve their testimonies particularly as  

they had been corroborated by the dying declaration made by  

Jaideo to Dadarao PW 2, the medical evidence in the case, as  

also the recovery of the murder weapons at the instance of the  

accused which were found on analysis to have been stained  

with human blood of  identifiable blood groups.  

7. Before  we  embark  on  an  appreciation  of  the  evidence  

some thoughts come to mind. The criminal justice system as  

we understand it  as  of  today in  our  country,  is  beset  with  

major issues, sometimes unrelated to what happens in court,  

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particularly  in  cases  involving  more  than  one  accused.  

Fudged  and  dishonest  first  information  reports,  tardy  and  

misdirected investigations  and witnesses committing perjury  

with not the slightest qualm or a quibble make the decision of  

even  the  most  diligent  and  focused  of  judges  particularly  

galling and difficult.  Several other factors inhibit the proper  

conduct of  proceedings in a trial.  As per “Crimes in India –  

1998” a total of 5,42,345 cases under the Indian Penal Code  

including  those  carried  over  from  the  previous  years,  and  

another 6,37,345 criminal cases under Special and Local Laws  

making  a  backlog  of  11,79,690  cases  were  pending  

investigation.   It  has also been found that the delay in the  

investigation  and  disposal  of  a  criminal  case  makes  the  

possibility of acquittal that much higher as witnesses tend to  

turn  hostile.   The  Fourth  Report  of  the  National  Police  

Commission  (1980)  Chapter  XXVIII  gives  some  alarming  

statistics inasmuch that a sample study of Sessions cases in a  

crime infested district revealed that out of 320 cases disposed  

off  in  the  concerned  Sessions  court  during  the  8  months  

working period in a year, only 29 ended in conviction while  

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291  ended  in  acquittal.    In  conclusion,  the  Commission  

observed:

“As many as 130 cases, which included  21 murders, 58 attempts at murder, 17  decoities and 9 robberies, took more than  3 years for disposal,  reckoning the time  from  the  date  of  registration  of  First  Information Report.  It  was also noticed  that the longer a case took for disposal  the  more  were  the  chances  of  its  acquittal.   Protracted  proceedings  in  courts  followed  by  acquittal  in  such  heinous crimes tend to generate a feeling  of  confidence  among  the  hardened  criminals  that  they  can  continue  to  commit  crimes  with  impunity  and  ultimately get away with it all at the end  of leisurely and long drawn legal battles  in  courts  which  they  can  allow  their  defence counsel to take care of.  Such a  situation  is  hardly  assuring  to  the  law  abiding  citizens  and  needs  to  be  immediately  corrected  by  appropriate  measures  even  if  they  should  appear  drastic and radical.”

8.     We hasten to add that these alarming figures are not  

universally applicable to all districts, but they are undoubtedly  

indicative  of  the  malaise  that  afflicts  our  criminal  justice  

system and paint a grim picture.  The Commission also found  

that  one  of  the  primary  reasons  for  the  failure  of  the  

prosecution  was  the  propensity  of  prosecution  witnesses  to  

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turn hostile and several reasons for this trend have been spelt  

out.  The Commission also quoted with approval from a letter  

of a senior Sessions Judge in which he wrote that:

“A  prisoner  suffers  for  some  act  or  omission  but  a  witness  suffers  for  no  fault  of  his  own.  All  his troubles  arise  because he is unfortunate enough to be  on  the  spot  when  the  crime  is  being  committed and at the same time “foolish”  enough to remain there till the arrival of  the  police.   It  is  for  these  reasons that  people do not take the victim of a road  accident to hospital or come to the help of  a lady whose purse or gold chain is being  snatched in  front  of  her  eyes.   If  some  person offers help in such cases he is to  appear as a witness in a court and has to  suffer  not  only  indignities  and  inconveniences  but  also  has  to  spend  time and money for doing so.  Some time  the  witnesses  incur  the  wrath  of  hardened  criminals  and are  deprived  of  their lives or limbs.”   

9.      In this  pernicious state  of  affairs,  the  judge,  gravely  

handicapped, has to apply his knowledge of the law and his  

assessment  of  normal  human behaviour  to  the  facts  of  the  

case, his sixth sense based on his vast experience as to what  

must have happened, and then trust to God and good luck  

that he strikes home to come to a right conclusion.  To our  

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mind, the last two are undoubtedly imponderables but they do  

come into play in negotiating the judicial minefield. This is an  

undeniable fact whether we admit it or not

10. We now take up for discussion the various issues raised  

by  the  learned  counsel.  Happily,  the  pitfalls  that  we  have  

noted above do not exist in the present case.  Namdeo, the  

deceased  and  his  sons  were  prosecuted  for  an  attempt  to  

murder Sukhdeo, the father of accused 1 to 5 in the year 1981  

and were sentenced to five years by the trial court, but the  

sentence was reduced to three years by the High Court and  

the accused were released from jail  in February 1989.  The  

present incident took place within four months of that release.  

It is true that some of the prosecution witnesses have testified  

that during the eight years between the earlier incident and  

the  present  one,  the  relations  between the  two  parties  had  

improved and that they were on visiting terms as well.  It is  

obvious,  however,  that the release of  Namdeo and his  sons  

from jail was an event which undoubtedly ignited old passions  

and animosities and precipitated the incident.  The finding of  

the Trial Court that there was no motive for the murders is,  

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thus, on the face of it unacceptable and it has been so found  

by the High Court, a finding that we too firmly endorse.  

11. The  record  reveals  that  the  incident  happened  in  two  

parts, first at about 6:00 p.m. and again an  hour later.  In the  

first incident Babarao and Jaideo were killed, an event which  

was witnessed by PW 1 Sanjay, the son and nephew of the two  

deceased, respectively.  The second incident was witnessed by  

PW 4 Bhimrao, PW 5 Deokabai and PW 6 Anandrao.  We now  

take up for consideration the evidence of each of these two  

sets of witnesses.   

12. It  has  been  submitted  by  the  learned  counsel  for  the  

appellants that Sanjay was a mere child of 11 years of age and  

in running away and hiding himself  in the  house  of  Abgad  

particularly after his father had been brutally murdered, was  

an unacceptable story.  We find no merit in this plea.  On a  

perusal of Sanjay’s evidence,  it stands revealed that he was  

able  to  discern  between  right  and  wrong  and  despite  a  

searching  cross-examination  made  by  the  defence  lawyer  

nothing adverse could be brought out.  Sanjay testified that he  

had gone along with the two deceased to the plough fields at  

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about 4:00 p.m. and while they were returning home, they had  

been  surrounded  by  all  the  accused  near  the  field  of  one  

Vishwanath and injuries had been caused to his father and  

uncle.   Sanjay  also  specified  the  weapons that  each of  the  

accused was holding and the manner of their use.  He also  

stated that in the confusion that followed the attack, he had  

managed to escape, had rushed home, revealed the story to  

his family and then hidden himself till the next morning.  It is  

also  evident  from  the  testimonies  of  the  other  prosecution  

witnesses Bhimrao, Deokabai and Anandrao that when they  

along  with  Namdeo  (deceased),  were  planning  to  go  to  the  

Police Patil to lodge the report with regard to the first incident,  

they had been apprehended by the accused and injuries had  

been caused to Namdeo which had led to his death. Deokabai  

further deposed that after this incident the accused had also  

come to her home and threatened to beat her as well.  PW 14  

Sub Inspector Vinayak, one of the investigation officers, in his  

deposition stated that when he reached the village at about  

1:45  a.m.  on  12th June  1989,  he  noticed  an  unusual  and  

artificial calm in the village, an atmosphere of panic and fear  

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and that the inhabitants were unwilling to even open the door  

till they were told that the police had arrived.  It is, therefore,  

obvious that the accused had let loose a reign of terror and  

after having killed three persons were still  not satisfied and  

were looking around for other victims from the Kolhe family.  

Little  wonder,  therefore,  that  Sanjay  had thought  it  fit  and  

prudent to hide himself till the coast was clear.  It is true that  

the Addl. Sessions Judge did not put any questions to Sanjay  

to  ascertain  his  suitability  as  a  witness.  We,  however,  find  

from the evidence that he fully understood the implications of  

what  he  was  saying  and  despite  a  stiff  cross-examination  

nothing to discredit him could be brought out.  We endorse  

the finding of the High Court that Section 118 of the Evidence  

Act does not preclude a child from being a witness and the  

only  test  that  is  applicable  is  as  to  whether  the  witness  

understood  the  sanctity  of  an  oath  and  the  import  of  the  

questions that were being put to him.   

13. In  Nivrutti Pandurang Kokate and Others vs. State  

of Maharashtra (2008) 12 SCC 565  ,   it has been observed  

that  the Section 118 of  the Evidence Act envisages that all  

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persons shall be competent to testify unless the Court thinks  

otherwise.   In  summing  up  the  various  judgments  on  this  

issue, this is what this Court had to say:  

“The decision on the question whether the   child  witness  has  sufficient  intelligence  primarily  rests  with  the  trial  Judge who  notices  his  manners,  his  apparent  possession or lack of intelligence, and the  said Judge may resort to any examination   which  will  tend  to  disclose  his  capacity   and  intelligence  as  well  as  his  understanding of the obligation of an oath.   The  decision  of  the  trial  court  may,   however, be disturbed by the higher court  if from what is preserved in the records, it   is clear that his conclusion was erroneous.   This  precaution  is  necessary  because  child witnesses are amenable  to  tutoring  and often live in a world of make-believe.   Though it is an established principle that   child witnesses are dangerous witnesses  as  they  are  pliable  and  liable  to  be  influenced  easily,  shaped  and  moulded,  but it is also an accepted norm that if after   careful scrutiny of their evidence the court   comes to  the  conclusion that  there  is  an  impress of truth in it, there is no obstacle   in the way of accepting the evidence of a  child witness”.   

14. We are of the opinion that Sanjay was aware of what had  

happened in the answers given by him in the course of his  

evidence  which  clearly  proved  that  he  was  a  competent  

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witness.  We also find that Sanjay’s statement has been duly  

corroborated  by  the  dying  declaration  made  by  Jaideo,  to  

Dadarao PW 2 who had rushed to the spot on being informed  

by Sanjay as to what had happened.  

15. The  murder  of  Namdeo  had  been  witnessed  by  PW 4  

Bhimrao, PW 5 Deokabai and PW 6 Anandrao.  Admittedly,  

PW 4 Bhimrao who was then  13 years of age, was a child  

witness and is the grandson of Namdeo. He deposed that while  

accompanying  his  grandfather  to  lodge  the  report  with  the  

police Patil with respect to the earlier murders, they had met  

Deokabai  on  the  way  and  she  too  had  accompanied  them.  

They had thereafter been accosted by all the accused who were  

armed with axes and sticks and they had caused injuries to  

Namdeo with their weapons.  He also deposed that on seeing  

this,  he  had  run  home,  informed  his  mother  about  the  

incident and on account of the panic prevailing in the village,  

he too was hidden away till the next morning.   We find that  

the cross-examination of  this witness was very sketchy and  

nothing  fruitful  could  be  elicited  by  the  defence  counsel.  

Bhimrao’s  statement  also  finds  corroboration  from  the  

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evidence of Deokabai a member of the Gram Panchayat, and  

Anandrao.   It  has  come  in  Deokabai’s  statement  that  her  

house  and  that  of  Namdeo  were  facing  each  other.   It  is,  

therefore, obvious that her presence was absolutely natural.  

She stated that she had witnessed the beating of Namdeo from  

a distance of 15 feet. She specifically denied any relationship  

with  Namdeo  or  his  family  but  candidly  admitted  that  her  

husband was one of the accused in the case involving Namdeo  

and his sons and the accused party in the incident of 1981.  

Anandrao too repeated the story given by the others and this  

witness while in the witness box when called upon to identify  

the  accused  identified  six  of  them.  He  also  denied  any  

relationship or any connection,  even a remote one, with the  

complainant party.  We, therefore, find that though Bhimrao  

was a child witness, he too satisfies the test laid down in the  

above mentioned case.  

16. The learned counsel for the State has also brought to our  

notice  some  observations  in  the  judgment  of  this  court  in  

Dinesh Kumar vs. State of Rajasthan (2008) 8 SCC 270  

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with respect to the evaluation of the  evidence of an interested  

or relation witnesses.  They are:

“When the  eyewitnesses  are  stated  to   be  interested  and  inimically  disposed  towards  the  accused,  it  has to  be noted  that  it  would  not  be  proper  to  conclude  that they would shield the real culprit and  rope  in  innocent  persons.   The  truth  or  otherwise  of  the  evidence  has  to  be  weighed  pragmatically.  The  court  would  be  required  to  analyse  the  evidence  of  related  witnesses  and  those  witnesses  who are inimically disposed towards the  accused. But if after careful analysis and  scrutiny  of  their  evidence,  the  version  given  by  the  witnesses  appears  to  be  clear,  cogent  and  credible,  there  is  no  reason  to  discard  the  same.  Conviction  can  be  made  on  the  basis  of  such  evidence”.   

17.   It is true, as contented, that a transformation has  

indeed taken place within the last  three or four decades  

and from the query ‘ why should an interested witness be  

believed ’  to ‘ why should such a witness be disbelieved as  

he is not likely to leave out the real culprits’,  reflects the  

anxiety  and  utter  helplessness  of  criminal  courts  as  

independent witness tend to turn hostile.   

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18. We are also aware of the fact that the evidence in most of  

these cases is recorded after some delay and that in any case  

if  every  witness  were  to  give  an  identical  and  parrot  like  

statement,  it  would  smack  of  tutoring  and  would  lose  

credibility.   Some  inconsistencies  are  thus  bound  to  arise  

particularly where a large number of victims, witnesses and  

accused are involved and the incident itself is spread out over  

a  distance  and  period  of  time,  as  in  the  present  case.  

Moreover, the involvement of a large number of accused in the  

present matter is further proved from the number of murders,  

the  injuries  caused,  and  more  glaringly,  in  that  a  reign  of  

terror had been let loose with the accused making repeated  

forays into the village, looking for more members of the Kolhe  

family.    

19. We have also gone through the medical evidence and find  

that  it  fully  supports  the  prosecution’s  story.  The  accused  

were armed with axes and sticks capable of causing incised  

and lacerated injuries.  Two lacerated and two incised injuries  

along with several fractures on the arms and legs were found  

on  the  dead  body  of  Namdeo.   Likewise,  Babarao  had  ten  

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injuries  including  four  incised  and  six  lacerated  with  four  

compound fractures,  two on the arms and two on the legs.  

The post mortem of Jaideo likewise revealed 14 injuries in all  

of  which  five  were  incised,  four  were  abrasions  and  the  

remaining were lacerated with three compound fractures; two  

on  the  leg  and  one  on  the  right  hand.  Dr.  Jaiswal  PW  7  

clarified  that  these  injuries  could  have  been caused by  the  

axes and sticks recovered from the accused.   

20.  The prosecution story, to our mind, is further fortified by  

the recoveries made from some of the accused.  As per the  

prosecution,  two axes had been recovered from the residence  

of Siddhartha accused, on 14th June 1989. These were found  

to  be  stained  with  human blood of  group ‘A’.  Five  bamboo  

sticks  were  seized  from the  house  of  Anil  accused,  on  12th  

June 1989, which were stained with human blood of group ‘A’  

and group ‘O’. It has come in evidence that the blood group of  

Namdeo was ‘O’ and that of Babarao and Jaideo was ‘A’.  

21. In this  view of  the  matter,  the  argument  made by the  

defence counsel that there was some delay in the lodging of  

the F.I.R., even if taken as correct, becomes insignificant. On  

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the contrary, however, we find that there is no delay in the  

facts  of  the  case.   As  per  the  record,  after  the  gruesome  

murders,  PW 3 Wasudeo had gone to a nearby village from  

where he had telephoned Village Anjangaonsurji  from where  

the information had further been conveyed to police station  

Akot.  The  fact  that   information  of  the  incident  had  been  

received at Akot at 1:00 a.m. is clear from the daily diary entry  

(Exh.31).  In this entry, the fact that Babarao and Jaipal had  

been killed also  finds mention.  It  also appears  that  at  that  

stage  Wasudeo  was  not  aware  that  Namdeo  too  had  been  

killed as his murder had been committed some distance away  

from his residential house and also away from the venue of the  

first  two murders.   It  has come in evidence that the  police  

reached  the  village  within  half-an-hour  or  so  on  which the  

formal F.I.R. had been recorded.  It needs reiteration that the  

three murders and the manner in which the members of the  

complainant party had been hunted out and killed and threats  

had been held out to the other members of the Kolhe family as  

well, had created an atmosphere of terror in the village and if  

the entire investigation on the crucial day did not proceed with  

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clock work precision, no adverse inference can reasonably be  

drawn from this fact.   

22. We accordingly dismiss the appeal.

……………………………..J. (S.B. SINHA)

…………………………….J. (HARJIT SINGH BEDI)

…………………………….J. New Delhi,         (AFTAB ALAM) Dated:  May 1, 2009

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