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2014 Supreme(Bom) 322
High Court of Judicature at Bombay
P.V. HARDAS & A.S. GADKARI, JJ.
Kamlakar Devidas Patil & Others
Versus
The State of Maharashtra
Criminal Appeal Nos. 1227 of 2005, 1229 of 2005 & 1087 of 2005
Decided On: 11-02-2014
For the Appellants:M.S. Mohite a/w Ashish Sawant, Rashmi Gagwani i/b Ganesh Gole, Dr. Yug Mohit Chaudhary a/w Dashrath Gaikwad, Chetan Mali, Advocates.
For the Respondent: S.D. Shinde, APP.
Headnote:Evidence Act, 1872 - Section 3 Appreciation of evidence of eye-witness. Though eye-witnesses exaggerated number of accused yet so far as their evidence, establishing involvement of one accused, liable to be accepted. It is true that the witnesses have exaggerated the participation of the accused, inasmuch as they have exaggerated the number of accused who have participated in the incident. The evidence of the eye-witnesses is a mixture of truth and falsehood. The trial Court had done the exercise of separating the grain from chaff i.e. separating the truth from the falsehood. Similar exercise has been performed by Court for separating the false implications of accused Devidas and accused Tarun. The doctrine of falsus in uno falsus in omnibus cannot certainly be made applicable. A reference may usefully be made to the judgment of the Supreme Court in Gangadhar Behera and others v. State of Orissa, AIR 2002 SC 3633. The Supreme Court in the said judgment has held that even if major portion of the evidence was found to be deficient and in cae the residue is sufficient to prove the guilt of the accused, then notwithstanding acquittal of the other accused, conviction can be maintained. In the present case, Court find even if the evidence of the eye-witnesses is disbelieved insofar as participation of accused ’D’ and accused ’T’, the evidence of eye-witnesses certainly establishes the commission of the offence against accused ’K’ beyond reasonable doubt. The appeal filed accused ’ K’ therefore deserves to be dismissed, confirming his conviction and sentence.
[Indian] Penal Code, 1860 - Sections 147, 148, 149 and 302 Conviction and sentence under. Where evidence of eye-witnesses that accused-1 assaulted deceased with a chopper was corroborated by medical evidence as well as by post-mortem report therefore conviction of accused-1 justified. The post-mortem report was admitted in evidence, and consequently the Medical Officer was not examined. The Medical officer was not shown the stones which were alleged to have been seized from the scene of the incident nor any attempt was made to elicit the opinion of the Medical officer if the stones could have caused injury Nos. 5 and 6. The stones by no stretch of imagination can be said to be hard and blunt object. The stone would fall in the category-hard and rough object. In the absence of necessary evidence, according to us it is extremely doubtful if accused ’D’ and accused ’T’ participated in the incident. In fact the evidence of the defence witness Mangesh clearly indicates that accused Tarun had accompanied him to the scene of the incident. If that be so, the participation of accused ’D’ and accused ’T’ is extremely doubtful and in our opinion therefore they would be entitled to be given the benefit of doubt.
P.V. Hardas, J.
1. Appellants, namely, accused-Kamlakar Devidas Patil appellant in Criminal Appeal No.1227 of 2005, accused-Devidas Vasudev Patil appellant in Criminal Appeal No.1229 of 2005 and accused-Tarun Devidas Patil appellant in Criminal Appeal No.1087 of 2005 by this appeals challenge their conviction and sentence for offence punishable under Sections 302 read with 149, 147 and 148 of Indian Penal Code (IPC) and sentenced to imprisonment for life and to pay fine of Rs.5,000/- each, in default of which to undergo further RI for 3 months, by IV Additional Sessions Judge, Thane, by judgment dated 29.10.2005 in Sessions Case No.198 of 2004, Sessions Case No.461 of 2004 and Sessions Case No.332 of 2003 respectively.
2. Though these appeals have been rendered in 3 sessions cases, the said sessions cases pertain to the same incident, and since the evidence in all three sessions cases is common, these appeals are being decided by this common judgment.
3. The facts in brief, as are necessary for the decision of this appeal, may briefly be stated thus:
(i) PW-9 API Hitendrasingh Patil who was attached to Padgha police station in February 2003, carried out the investigation in respect an offence which was registered on the basis of the report of PW-3 Sushila at Exhibit-24. Upon registration of the offence i.e. crime no.10 of 2003, he proceeded to the scene of the incident. Inquest panchanama has already been drawn by PSI Patil at Exhibit 25. PW-9 API Patil had recorded the statements of the witnesses and on 5.2.2003, arrested accused Tarun, accused in Sessions case No.332 of 2003. The clothes of the deceased were seized under seizure memo at Exhibit 35. The house of Tarun was searched and accordingly, a towel and a chocolate coloured sweater were seized from the house of Tarun, at panchanama at Exhibit 30. The clothes of the accused Tarun were found to have been stained with blood. A torch was seized from the house of PW-4 Damodar Tare under seizure memo at Exhibit 32. The samples of blood stains which had been collected as well as the other seized property were referred to the chemical analyzer under a requisition at Exhibit 53. Further to the completion of the investigation, PW-9 API Patil filed a charge-sheet against accused Tarun which was then registered as Sessions Case No.332 of 2003.
(ii) PW-8 PI Nivrutti Muradewho was also attached to Padgha police station had carried out investigation in crime no.10 of 2003. On 6.3.2004, he had accordingly arrested accused Kamlakar under panchanama at Exhibit 11. During custodial interrogation, accused Kamlakar on 10.3.2004 expressed his willingness to point out a place where a chopper had been concealed by him. Accordingly, the memorandum of accused Kamlakar was drawn in presence of panchas at Exhibit 49. The accused led the police and the panch to Khambala village and from a ditch near pipeline produced a chopper which was seized in the presence of panchas under panchanama at Exhibit 38. The said chopper was then deposited in the malkhana under receipt at Exhibit 50. On 15.3.2004, the accused Prakash Jogale was arrested under arrest panchanama at Exhibit 37. The seized chopper along with the other article was forwarded to the chemical analyzer under requisition at Exhibit 51. On 8.8.2004, accused Devidas was arrested and accordingly a charge-sheet against accused Kamlakar and accused Devidas was filed.
(iii) Dead body of deceased Suresh had been referred for postmortem and the postmortem was conducted by the Medical Officer of Indira Gandhi Memorial Hospital, Bhivwndi-Nizampur Municipal Council. As per the postmortem report which was admitted in the evidence and marked Exhibit 43, deceased Suresh had sustained the following injuries:
“1. Incised wound 3” x 1”x1/2” vertical on posterior side of Lt. Frontal region of scalp.
2. Incised wound 4” x 1”, cavity deep vertical, on anterior side. Rt. frontal region of scalp. Brain matter expose and seen.
3. I.W. ½ “ x ½ “, mucle deep above Lt e
