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IN THE HIGH COURT OF BOMBAY
D.N. Mehta A.D. Tated, JJ.
Sangappa Nigappa Malabadi .... Appellant.
Versus
State of Maharashtra.... Respondent.
AND
State of Maharashtra .... Appellant.
Versus
Bhagwant Vithappa Waikar others .... Respondents.
Criminal Appeals Nos. 1282 with 1401 to 1403 to 1403 of 1979, decided on 4/5/6/14-8-86.
Advocates appeared :
R.D. Ovalekar with Nitin V. Pradhan, for appellant-accused No. 7 in Cri.A 1282/79.
V.S. Jadhav, P.P., for respondent-State in Cr.A 1282/87 and for appellant State in Cri.As 1401/79.
Nittin v. Pradhan, for respondents-accused Nos. 3 to 6 in Cri.As. 1401 to 1403/79.
Sections 302, 326, 332 and 353 read with Section 34-Offence under - Acquittal-Validity.
Accused and prosecution witnesses belonged to two rival groups not of litigation between those to rival groups In view of strained relations between accused and prosecution witnesses possibility of some innocent persons bein8 roped in could not be ruled out. Police constable lodging F. I. R. not saying anything regarding such accused persons. Their names lot finding place in F. I. R. lodged immediately after incident. Held, Not proper to reverse finding of acquittal as evidence of interested prosecution witnesses against accused could not be relied on. Evidence Act, 1872, Section 3.
Sections 302, 326, 332 and 353 read with Section 34-Offences under - Acquittal-State appeal against-No evidence except that of P. W. 9 eye witnesses against accused-Such witness belonged to faction rival to faction led by accused-Such witness could be interested in raping in some of members of rival group in crime- Such witness not saying that accused took part in assaulting deceased-It would not be safe to rely on in corroborated testimony of such witness.
Held, No convincing reason for reversing finding of acquittal. Evidence Act, 1872, Section 3.
Section 3 - The mechanical rejection of partisan type evidence on the sole ground of being partisan would lead to failure of justice.
When a Criminal Court bas to appreciate evidence given by witnesses who are partisan or interested, it bas to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, Criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that is it partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
Section 3-Testimony of eye witnesses-Reliability-Eye witnesses belonging to group rival to group led by accused-Investigating Officer recording testimony of such eye witnesses about four days after incident-No oblique motive on part of investigating officer in recording statement of after four days.
Held, Court may not place much reliance on testimony of such eyewitnesses, even though there is no oblique motives on part of investigating officer in recording statements after four days when they belong to faction rival to faction led by accused.
Section 3- Evidence of eye witness-Reliability-Discrepancy in evidence regarding weapon wielded by accused.
Held, In the circumstances in which incident had taken place, mistake regarding weapon wielded by each accused was natural. Such discrepancy could not be used to discredit testimony of such witness.
Section 3-Evidence of eye witnesses-Such witnesses belonging to faction rival to faction led by accused-Evidence of all such witnesses except of one was rejected-Contended that evidence of such witnesses also to be rejected on the same ground as of all other witnesses-Maintainability.
Evidence of such a witness could not be rejected only on ground that he belonged to rival faction, though close scrutiny of such evidence called for Evidence given by such witness was not at all contradicted by his police statement recorded immediately. Held, Evidence of such witness valid and acceptable.
Section 9-Identification of accused-Commission offence of murder - Police constable carrying deceased in jeep along with other witnesses to Police Station-All persons accompanying deceased were at the place where incident took place-No reason for them to discuss among themselves named of assailants of deceased.
Held, From mere fact that witnesses accompanying deceased had no discussion as to who were deceaseds assailants, it could not be legitimately inferred that none of them knew who were assailants of deceased.
A.D. TATED, J.:---These four appeals arise from the judgement and order dated 16th July, 1979 passed by the learned Additional Sessions Judge, Sangli, in Sessions Cases Nos. 2, 13 and 21 of 1979. In the three Sessions Cases tried together and disposed of by a common judgement, seven accused were charged with the offences punishable under sections 147, 148, 302 read with section 149, section 302 read with section 34, section 353 read with section 34, section 332 read with section 149, section 332 read with section 34, section 337 read with section 149, section 337 read with section 34, section 323 read with section 149 and section 323 read with section 34 I.P.C. The Accused Nos. 1 to 6 were acquitted by the learned Additional Sessions Judge. The accused Nos. 1 to 6 were acquitted by the learned Additional Sessions Judge. The Accused No. 7 Sangappa Nigappa Malabadi was found guilty of the offence under section 302 read with section 34 I.P.C. and also of the offences under section 353 read with section 34 and section 332 read with section 34 I.P.C. and he was sentenced to suffer imprisonment for life on the first count. No separate sentence was awarded for the latter two offences proved against him. The Accused No. 7 feeling aggrieved with the conviction and the sentence awarded to him, preferred Criminal Appeal No. 1282 of 1979. The State, feeling aggrieved with the acquittal of the Accused Nos. 3, 4, 5 and 6, preferred three Criminal Appeals Nos. 1401 to 1403 of 1979. In each appeal the four accused mentioned above are shown as respondents. One appeal against the four accused persons was sufficient, but it appears that three appeals have been filed and in each of those three appeals all the four accused have been made respondents. The appeal preferred by the Accused No. 7 against his conviction and the appeals preferred by the State against the acquittal of the accused Nos. 3 to 6 have been heard together and this common judgement disposes of those appeals.
2. The learned Additional Sessions Judge has extensively stated the prosecution case, and for the decision of these appeals it is not necessary to repeat all those facts. The prosecution case in brief is that there is a village called Sonyal in Sangli District. It is within the jurisdiction of the police Station, Umadi. There is another village called Madgyal where there is a police outpost. Village Sonyal is within the jurisdiction of the said police outpost. At village Sonyal there is a school known as Vijay Vithal School, One Ishwarappa Birajdar at the relevant time, that is in September 1978, was the Chairman of that school. Sangappa Gurningappa Birajdar (P.W. 8) was the Vice-Chairman of that school. One Ghanage was the headmaster of that school. The Society running the school decided to stage a drama at the school premises on 12th September, 1978. The headmaster submitted an application dated 11th September, 1978 at the Police-Station, Umadi, of for police bandobast at the time of the drama and another application was submitted to the Tahsildar, Jat., for permitting the staging of the drama of the on that day. The Tahsildar issued the performance licence Ex. 41 to Sangappa. Sangappa contacted M.L.A. Shri Sohani, Advocate, Panchayat Samiti Chairman Shri Bhagvantrao Daphale and Deputy Engineer R.K. Patil and invited them to attend the drama. All those invites arrived at Sonyal on 12th September, 1978 by about 5 p.m. with ex-Sarpanch Sangappa in the jeep of Samiti Chairman Bhagvantrao Daphale. Sangappa contacted Police Head Constable Babu Sidagonda Pachhapure at about 5 p.m. at Village Madgyal and showed him the performance licence issued by the Tahsildar. Head Constable Panchhapure and Police Constable Eknath Baburao Kadam (P.W. 12) accompanied Sangappa in the jeep to Village Sonyal for bandobust.
3. At the school premises, arrangements were made to stage a drama at the verandah of the school. The premises were fully lighted by electric lights and petromax. T
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