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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. Tahilramani, Mridula Bhatkar, JJ.
Tanaji Dharmaraj Patil and Ors. - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 1077 of 2007, Criminal Revision Application No. 622 of 2007, Criminal Appeal No. 948 of 2014
Decided On : 05-07-2016
Though the evidence of a witness who does not support the prosecution is admissible as proved through the Investigating Officer and portion is marked, the Court can look into it. However, it has to pass a test of credence. The said evidence should inspire confidence in the mind of the Judge, that evidence which the witness has avoided to state before the Court is if true and reliable evidence, then it is to be believed. The conviction cannot be based on surmises and hypothesis. There is always a gap between might and must. In the case of murder, prosecution has to prove the case to the degree of must and conviction cannot be based on unconnected links. In this case, evidence of these two hostile witnesses which is proved through Investigating Officer, it is not reliable and it is unsafe to believe it. Moreover, the finding given by the Sessions Judge while acquitting accused No. 7 is found possible and reasonable and, therefore, Court doesn`t think it is legal to take other view.
Indian Penal Code, 1860 - Section 302-Evidence Act, 1872, Sections 3 and 8-Murder- Proof.-Where prosecution by its eye-witnesses namely wife and mother of deceased proved that accused persons assaulted deceased and recovery of weapons of offence chopper and sword at the instance of accused persons was also established; appellate Court upheld their conviction recorded by trial Court.
The prosecution has examined PW 16-doctor. He has deposed that on 7th July, 2004 he was having a night duty and at around 6.50 a.m. on 8th July, 2004 he examined two patients, i.e., PW 12 `S` and PW 15 `G`. `G` sustained incised wound on her left forearm and it was a fresh simple injury and probable weapon used was sharp edged weapon. He has issued medical certificate to that effect, which is marked as Exhibit 86. Exhibit 86 disclosed incised wound on forearm. He also examined `S`. There was friction abrasion on right knee superficial and it might have caused by object like stick. He has issued medical certificate to that effect, which is marked as Exhibit 87. The contents in Exhibit 87 corroborates the evidence of doctor. It was argued that these injuries are of simple nature and cannot prove that they were caused in such grave attack. These submissions of the defence cannot be appreciated because these two medical certificates and evidence of doctor proves that these two witnesses were injured. The injuries were fresh. Thus, this fact shows that the evidence of the witnesses that they sustained one injury each when the accused were assaulting deceased is supported. Their presence at the time of incident is thus proved.
Mridula Bhatkar, J.
Criminal Appeal No. 1077 of 2007 is filed by accused nos. 1 to 3 against conviction. Criminal Appeal No. 948 of 2014 is filed by State against acquittal. Criminal Revision Application No. 622 of 2007 is preferred by the complainant.
2. The incident of assault has taken place on 7th July, 2004. It is the case of the prosecution that deceased Vilas Jadhav residing with his wife/complainant Vibhuti, mother Gangabai and other family members at Ramnagar Digha. He was a social worker. He was working for political party, namely, Rashtravadi Congress party. He used to take initiative to celebrate Ganesh festival and he was a President of Ganpati mandal in that area. However, in the year 2002-03, accused no. 7 Vijay Chougule, who was the leader of Rashtravadi Congress party, told him not to celebrate his traditional Ganesh festival and asked him to work with accused no. 2, as accused no. 2 Sunil Bhosale was celebrating Ganesh festival separately in Ramnagar. However, Vilas Jadhav did not pay heed to this request but celebrated Ganesh festival in the year 2002-03. On this issue, a dispute arose between Vilas Jadhav and Vijay Chougule and his associates. Other accused are the associates and body guards of accused Vijay Chougule. In November, 2003 they attacked Vilas Jadhav in his house, however, he could escape.
3. It is the case of the prosecution that on the night of 7th July, 2004 at around 10.30 a.m. when Vilas Jadhav along with family members was sleeping in the house, suddenly accused nos. 1 to 3 armed with choppers and sword entered the house. Other 7 to 8 unknown persons also entered the house with sticks in their hands. Accused nos. 1 and 2 assaulted Vilas but he could run out of the house from the backside door, however, they chased him and assaulted him. Thereafter Vilas again entered the house and tried to hide in the bathroom of his bedroom. His mother Gangabai PW-15, his wife Vibhuti Jadhav PW-18 and his cousin Sandeep Bhalchandra Jadhav PW-12 tried to intervene and stop the assailants, however, the accused held the witnesses. Accused nos. 1 to 3 and deceased accused nos. 4 and 5 with weapons in their hands brutally assaulted Vilas Jadhav. They left him lying in a pool of blood and ran away. The family members immediately shifted Vilas Jadhav to the hospital and there he was declared dead. At the instance of Vibhuti PW-18, FIR was registered at C.R. No. T-239/2004 under sections 302, 307, 147, 148, 149, 342, 452, 449, 427, 120B, 37(1) r/w. section 135 of Bombay Police Act and under sections. 3 and 25 of Indian Arms Act. The police drew spot panchnama. PW-17 Dr. Mangesh Ramchandra Ghadge conducted postmortem on the body of Vilas Jadhav on 8th July, 2004 and prepared postmortem notes marked Exhibit 95 where the cause of death was mentioned as haemorrhage and shock due to multiple injuries with fracture of skull and intracranial hemorrhage. The police seized the clothes of the deceased and recorded statements of all the witnesses. All the accused were arrested on 9th July, 2004. At the instance of accused no. 3 chopper was recovered on 16th July, 2004 under Memorandum Exhibit 48 and at the instance of accused no. 2 sword was recovered on 10th July, 2004 under Memorandum Exhibit 51 and 52. The police sent the articles to Chemical Analyzer and collected the CA report. After completion of the investigation, the police filed charge sheet. It was committed to the Sessions Court. The learned Sessions Judge framed charge. The accused pleaded not guilty and it concluded in conviction of accused nos. 1 to 6. However, accused no. 7 is acquitted. Hence, these Appeals and Revision.
4. The prosecution in all has examined 23 witnesses. PW-12 Sandeep Bhalchandra Jadhav, cousin of the deceased; PW-15 Gangabai Jadhav/mother of the deceased; PW-18 Vibhuti Jadhav/wife of the deceased are the eye-witnesses. The incident has taken place in the house at around 10.30 p.m. PW-1 Milind Jadhav, brother of the deceased, is on t
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