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PETITIONER: NARESH MOHANLAL JAISWAL

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT:       09/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      The appellant-original  accused  No.2    alongwith  six other accused  persons was  tried in Sessions Case Trial No. 45 of  1984 for  having committed  the murder  of one Ramesh Haribhau Himane  popularly known  as "Ramesh Patil" resident of village  Bhari Distt.  Yavatmal in the evening of January 6, 1984.   The appellant and original accused Nos. 1,3 and 4 were charged  under Section  302/34 of the Indian Penal Code whereas remaining  three accused  persons were  charged  for offences punishable  under Sections  201,202 and  212 of the Indian Penal  Code.   Udey  Shankar  Dixit-original  accused No.1, however, was murdered during the pendency of the trial hence it  abated against  him.    The  trial  court  by  its judgment and  order dated  8th July, 1986, acquitted all the accused persons except the appellant who was convicted under Section 302/34  of the  Indian Penal Code, and sentenced him to suffer  imprisonment for  life  and  to  pay  a  fine  of Rs.1,000/-.   The appellant’s  appeal to  the High  Court of Bombay, Bench  at Nagpur, came to be dismissed on 13-2-1988. It is  against this  judgment and  order of  High Court, the appellant on obtaining special leave had filed this appeal. 2.   The facts  of the prosecution case lie in a very narrow compass:-      Ramesh Patil  (since deceased) was allotted 15 acres of land in village Bhari situated at a distance of about 6 kms. from Yavatmal  on Yavatmal-Pandhar Kowada road and was doing cultivation. Haribhau  (PW 2)  is the father of Ramesh Patil who was  then residing  in his own house at Yavatmal. Ramesh Patil used  to go  to Village  Bhari everyday at about 11.00 a.m. and would return at about 5.30 p.m. 3.   It is alleged by the prosecution that in the year 1978, Ramesh Patil  alongwith six  other persons  of whom some are prosecution witnesses  in the  present case,  was prosecuted under Section  307 of  the  Indian  Penal  Code  for  having attempted to  commit the murder of Udey Shankar Dixit (A-1). However, on  the conclusion  of the said trial, Ramesh Patil and other  accused persons  were acquitted.  Since then, the two rival  groups were  on inimical  terms  and,  therefore. Ramesh Patil  apprehended  danger  to  his  life  from  Udey

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Shankar Dixit and the appellant. 4.   It was  then alleged by the prosecution that on January 6, 1984, Ramesh Patil as  usual was returning on his bicycle to Yavatmal  at about  6.00 p.m.  by Yavatmal-pandhar-Kawada road. Arvind  Mangruikar (PW  6) and  Dadarao Thakre  (PW 7) resident of  village Bhari  had then  come to  Yavatmmal  at about 3.00  p.m. to  watch a  matinee show  in Sham Talkies. After the  matinee show,  they  were  going  back  to  their village Bhari  double seat on a bicycle of Arvind Mangrulkar (PW 6).  When they  came near  the octroi  post,  two  lunas coming from  behind over  took them.  Udey Shankar Dixit was driving the  Luna of  blue colour  and A-3  was the  Pillion rider. The  appellant was  riding on  another Luna  of brown colour and  A-4 was the pillion rider. Both these lunas went in the  direction of village Bhari. Arvind Mangrulkar (PW 6) and Dadarao  Thakre (PW  7)  stopped  near  the  bridge  for answering nature’s  call and  when they  crossed the bridge, heard the  shrieks "bachao-bachao"  coming from the opposite direction. On  proceeding further  they saw  the  two  Lunas which overtook  them were parked on the road facing Yavatmal and one person who was lying on the ground at the end of the road,  was   Udey  Shankar   dixit  and  the  appellant  was assaulting him  with knife.  Anil and  Suresh were  standing nearby. after  seeing the incident for about a minute or so. arvind Mangrulkar (PW 6) and Dadarao Thakre (PW 7) proceeded to their  village Bhari and there they came to know from the villagers that  the person  who was  assaulted on  Yavatmal- Pandhar Kawada road was, Ramesh Patil. 5.   Suresh (PW  1) who returned at about 6.30 p.m. from the village Waihatola   learnt from Kashinath (PW 4) that Ramesh Patil was murdered and his body was lying in front of Malani Park. one  kilometer away from Yavatmal. He then went to the spot where  he met Partap Paraskar (PW 19). After seeing the dead body  of Ramesh  Patil, both  of them  went to Yavatmal City Police  Station where  Suresh (PW  1) lodged  a written report Ex.  34 at  about 7.55  p.m. The  SHO registered  the crime under  Section 302 IPC; recorded the formal FIR Ex.200 and  proceeded   towards   the   place   of   incident   for investigation. the  inquest panchanama  was held on the dead body of  Ramesh Patil  and it was sent to the Civil Hospital for post  mortem examination.  During the investigation, the appellant was arrested on January 8, 1984. The statements of Arvind Mangrulkar  (PW 6)  and Dadarao  Thakre (PW  7)  were recorded on  January 8,  1984. The appellant was placed in a test  identification   parade  arranged   by  the  Executive Magistrate on  21st January,  1984 wherein Arvind Mangrulkar (PW 6)  identified  the  appellant.  During  the  course  of investigation, the  appellant made a statement under Section 27 of the Evidence Act which led to the recovery of a knife. After completing  the necessary investigation, the appellant alongwith seven other accused persons was put up for trial. 6.   The appellant  denied the  charge levelled  against him and claimed  to be  tried. According  to him, he was falsely implicated in  the present  crime due  to enmity.  He denied that he  was identified  by the alleged eye witnesses during the T. I. parade. He is innocent and he be acquitted. 7.   The prosecution in support of its case examined as many as forty   witnesses,  of whom, Arvind Mangrulkar (PW 6) and Dadarao Thakre (PW 7) were witnesses of fact. In addition to the above  evidence. the prosecution has relied upon several other circumstances  to which  reference will be made at the appropriate places. 8.   At the  outset, it  may be  stated that both the courts below accepted  the evidence of Arvind Mangrulkar (PW 6) and Dadarao Thakre  (PW 7)  as trustworthy and credible who gave

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an eye account of the assault caused on Ramesh Patil. 9.   At the  outset, lit may also be stated that there is no challenge to  the fact  that Ramesh  Patil died an unnatural death due  to  several  injuries  sustained  by  him  in  an incident which  took place on January 6, 1984, at about 6.30 p.m. Suffice it to mention that Dr. Shainesh  Chandra (PW 8) who held  the autopsy  over the  dead  body  testified  that Ramesh Patil  (since deceased)  had sustained  as many as 37 incised ante mortem injuries of which not less than ten were on vital  parts of  the body  and that  those injuries  were sufficient in  the ordinary course of nature to cause death. We feel  no hesitation  in holding  that Ramesh Patil died a homicidal death. 10.  Entire prosecution story to prove the complicity of the appellant, hinges  upon the  two star witnesses of fact i.e. arvind Mangrulkar (PW 6) and Dadarao Thakre (PW 7). Mr. U.R. Lalit, Learned  Senior Counsel  appearing for  the appellant while assailing  the evidence  of these  two  eye  witnesses urged that  their testimonies were totally incredible and no reliance whatsoever could be placed on their evidence. While supplementing  this   argument,  he  urged  that  they  were partisan  witnesses   having  hostile   relations  with  the appellant. He  urged that  although both  these    witnesses claimed to have witnessed the assault caused on Ramesh Patil yet they  did not disclose the same to anyone to anyone till 8th of  January, 1984.  their silence was totally opposed to the human  conduct and in the facts and circumstances of the case, it would be unsafe to rely upon their evidence. We see on substance  whatsoever in  any of these submissions. It is true that  the statements  of  both  these  witnesses  under Section 161  of the Code of Criminal Procedure were recorded on 8th January, 1984, although, the First Information Report was lodged  on 6th  January, 1984  at about 7.55 p.m. within the shortest  possible time.  Both these  witnesses in their evidence on  oath had  stated that  they were  scared of the appellant and  his associates who had identified them at the time of incident. They further stated that the appellant and his associates  were arch  rivals of  Ramesh Patil  and  his associates who  were the  members of  Hanuman Vyayam  shala. They admitted  that after reaching their village Bhari, they quietly went to their respective houses and did not disclose the fact  of assault caused on Ramesh Patil to anybody. They further admitted although they attended the funeral and were in the company of berieved members of the family yet did not disclose the  fact of  assault by  the appellant  on  Ramesh Patil to  anybody. They  then stated  that only    when  the appellant came  to be  arrested on  8th January,  1984, they came forward  for recording  their statements  under Section 161 of the code of Criminal Procedure. Both the courts below have  considered  these  circumstances  very  carefully  and concurrently held  that the  apprehension expressed  by both these witnesses could not be said to be untrue. This being a finding of  fact,  it  would  not  be  possible  for  us  to interfere with  the said  finding in  an appeal  filed under Section 136  of the  constitution and  it is not possible to discredit their evidence. 10.  It was  then urged by Mr. Lalit that there was enormous delay  in   lodging  the   First  Information  Report.  This submission is again devoid of any merit because the incident in question took place at about 6.30 p.m.. and after getting the information,  Suresh (PW  1), the cousin of Ramesh Patil lodged a  complaint with the city police station Yavatmal at 7.55 p.m.  (Ex.200). Till  the lodging  of  this  complaint, there was  no clue  as regards  the assailants and obviously their names  could not figure therein. It is only during the

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course of  investigation, when  the  appellant  came  to  be arrested on  8th January, 1984, Arvind Mangrulkar (PW 6) and Dadarao   Thakre (PW 7) came forward to give the eye account of the  assault caused  on Ramesh Patil and their statements under Section  161 of the Code of Criminal Procedure came to be recorded  on the  same day.  In our  opinion, there is no delay whatsoever in lodging the First Information Report. 11.  Mr. Lalit  then urged that the panch witnesses examined by the  prosecution were  from the  stock of  Hanuman Vyayam Shala and  no independent  panch witness   was called for by the investigating  officer. Taking  support from this  fact, Mr. Lalit urged that the entire investigation was not at all fair and  the investigating  machinery took  the side of the complainant party  . Learned  Counsel, therefore, urged that the evidence  collected  by  investigating  officer  was  of partisan witnesses  and it  would be  unsafe to  accept such tainted evidence. Both the courts below were very much aware of  the   fact  that  the  eye  witnesses  examined  by  the prosecution were  from the  village  Bhari  and  friends  of Ramesh Patil  yet after  careful scrutiny  of their evidence accepted the  same as  credible and  did not suffer from any infirmity. By  way of abundant precaution, we have also gone through  the evidence of both these eye witnesses and record our  complete  agreement  with  the  appreciation  of  their evidence  done   by  the  courts  below.  Despite  strenuous efforts, Mr.  Lalit was  unable to  point out  to us how the investigation was tained one. It is, therefore, not possible to hold that the investigation was tainted one. 12.   In addition to the above ocular evidence, there is one more circumstance which was relied upon by the courts below, viz., the  presence of  human blood stains of ‘A’ grout that of the  deceased on  one of  the Luna  motor  cycle.  Arvind Mangrulkar (PW  6)  and  Dadarao  Thakre  (PW  7)  in  their evidence had  stated that  when they  were  proceeding  from Yavat Mal  to village  Bhari at  about 6.00  p.m., they  saw Udeyshanker Dixit  alongwith one  pillion rider  on Luna  of blue colour  and the  appellant on  another  Luna  of  brown colour with  the pillion  rider who overtook them. When they came near  Malani park,  they  saw  the  appellant  and  his associates were  assaulting Ramesh  Patil with knives. It is true that  no blood  stains were  found on the Luna on which appellant was  riding, however,,  the fact  remains that the other Luna  on which  Udeyshankar Dixit  was riding  and was identified had  the human  blood stains  of ‘A’  group. This fact  was   corroborative  circumstance  in  favour  of  the prosecution and  the courts below have committed no error in relying upon this circumstance. 13.  Mr. Lalit  then contended  that there is no evidence on record to  show that  there was  any light  available at the place of  occurrence to  enable the  two  eye  witnesses  to identify the  appellant. This  submission is again devoid of merit because  both the  eye witnesses  have stated in their evidence that  there was sufficient light available from the lamp post  at Malani Park. We see no reason to disagree with the finding  of fact  recorded by  the courts  below in this behalf. 14.  After careful  consideration of  the submissions by Mr. Lalit and on going through the judgments of the courts below and the  materials on record, we are satisfied that the high Court had  committed on  error in  error  in  affirming  the conviction and  sentence  of  the  appellant.  There  is  no substance in the appeal and it is accordingly dismissed. The appellant, who  is on bail, shall surrender to his bailbonds to serve out the remaining period of his sentence.

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