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1999 (3) Crimes 161
BOMBAY HIGH COURT (DB)
Vishnu Sahai and Smt. Ranjana Desai, JJ.
Tulshiram Bhanudas Kambale and Ors. - Appellants
versus
State of Maharashtra - Respondent
Criminal Appeal No. 32 of 1996 with
Criminal Appeal Nos. 71 and 83 of 1996
All decided on 5-4-1999
Counsel for the parties:
For the Appellant Nos.1, 2, 3 and 6 in Crl. Appeal No. 32 of 1996: Mr. V.M. Thorat with Mr. Pramod Patil, Advocates.
For the Appellant Nos. 4, 5, 7, 8 and 9 in Crl. Appeal No. 32 of 1996 : Mr. D.B. Bhosale, Advocate.
For the Appellant in Crl. Appeal No. 71 and 83 of 1996 : Mr. Ram Rao Adik with Mr. B.R.' Patil, Advocates.
For the Respondent in All Crl. Appeals: Mr. S.R. Borulokar, (Addl. P.P.)
(ii) Criminal Procedure Code, 1973 - Sections 378 and 401(3) - Acquittal - Sustainability of - Absence of an appeal against acquittal - Stipulation of a specific embargo in Section 401(3) which prohibits the High Court from converting a finding of Acquittal into one of conviction High Court even in a case where it feels that the acquittal is perverse, cannot convert a finding of acquittal into one of conviction by suo motu exercising its revisional power. (Para 10)
(iii) Criminal Trial - Evidence - A got up witness - He is not named in the F.I.R. - Police Inspector only discovered after about 8 days that he had witnessed the incident - He was a chance witness - Evidence of such witness is to be rejected. (Para 13)
(iv) Criminal Law - Evidence If a witness deposes about the presence of a false witness his presence itself is rendered false - When evidence of eye-witnesses stands discredited in respect of parts constituting the core of the prosecution case - It becomes extremely hazardous to place reliance on it - It should only be accepted, if the residual account furnished by them is free from all blemish and is in consonance with probabilities. (Paras 14, 14A, 14B)
(v) Criminal law - Evidence Injured witnesses - Appreciation of evidence - Before the evidence of an injured witness can be accepted by a court it should be satisfied that he is a truthful witness and the account furnished by him is in consonance with probabilities - There is no rule of appreciation of evidence which requires that because a witness is injured his evidence ipso facto should be accepted as gospel truth. (Para 16)
(vi) Criminal Procedure Code, 1973 - Section 157 - First Information Report - Obligatory duty on the police to forthwith send a copy of the F.I.R. to the Magistrate Whenever the Police fail to discharge this mandatory duty it is under a legal obligation to furnish the reasons for not discharging it. (Paras 28. 28A)
(vii) Indian penal Code, 1860 - Section 307/34 and 452/34 – Five eye-witnesses - They were inimical to appellants - They falsely implicated L - They falsely stated that PW 13 witnessed the incident - Evidence of PW 8 to the extent it was corroborated by his statement recorded by the SEM acceptable - Allegations against appellants that they entered inside his house, assaulted him with sword and sattur on vital parts of his body and their after he became, unconscious - When he regained his consciousness in the hospital. SEM recorded his statement - In his substantive statement PW 8 had not referred to assault on two deceased persons - Only an offence u/s 452/34 I.P.C. would be made out against the appellants. (Para 29)
(viii) Indian Penal Code, 1860Section 452/34 - Conviction for offence - Sentence - Accused has already served slightly over four years - His sentence reduced to the period already undergone. (Para 31)
(ix) Indian Penal Code, 1860 - Sections 34, 149 - When a charge framed with aid of Section 149 I.P.C. no impediment to convict the accused with the aid of Sec. 34 I.P.C. (Para 30)
Result: Appeals disposed of accordingly.
JUDGMENT
Vishnu Sahai. J. - Since these three connected criminal appeals arise out of the same set of facts and a common impugned judgment, we are disposing them of by one judgment:
2. Through these criminal appeals, the appellants challenge the judgment and order dated 4th January, 1996, passed by the Additional Sessions Judge, Pandharpur in Sessions Case No. 44 of 1995, whereby they have been convicted and sentenced in the manner stated hereinafter:
(i) All the appellants u/ss 452 r/w 149 I.P.C. to undergo 3 years R. I.
(ii) Appellants Tulsiram Kambale Ramchandra Kambale, Ganesh Shirsat, Ashok Waghmare, Dnyaneshwar Naikwadi, Anil Mane and Sunil Mane to undergo life imprisonment u/s 302 r/w 149 I.P.C. and
(iii) appellants Tulsiram Kamble Anil Mane and Rajendra Kothalkar' to undergo two years R.I. for the offence u/s 324 r/w 149 I.P.C.
The sentences of the appellants were ordered to run concurrently.
3. In short the prosecution case runs as under:
The appellants belong to the Koli community and are inter-related, Between them on one hand and the informant Rajabhau Kamble (P.W. 7). Dattatraya Kamble (P.W. 8), Bhaskar Bhinge (P.W. 11), his brother Pandurang Bhinge, Mahesh Bhinge (P.W. 12), Laxman Kamble (the deceased). and Kailas Bhinge (the deceased) there was long standing enmity of a acute nature. Its details have been furnished in paragraph 9 of the statement of the informant Rajabhau Kamble.
On 19-2-1995 at about 5 p.m., the deceased persons, Bhaskar Bhinge and Dattatrava Kamble alongwith some others were watching a film on Television inside the house of the deceased Laxman in Pandharpur Taluka, within the limits of District Sholapur. The informant Rahabhau Kamble and Pandurang Bhinge also came there. After some time Pandurang Bhinge left. At about 7.30 p.m. the film got over. Thereafter the deceased persons, Dattatraya Kamble and Raiabhau Kamble came and sat in the courtyard of Laxman. Bhaskar Bhinge remained inside and was listening to the news. At that time in the jeep of acquitted accused Laxman Paparkar, the appellants alongwith acquitted accused Laxman Paparkar, walchand Shah, Manikchand @ Babusha Shah and Balu Kamble came. They were armed with Weapons-Sattur, axe and sword. They entered inside the courtyard of Laxman. Appellants Tulsiram Kambale and Dagadu started inflicting blows with swords on Dattattava's person. Appellants Rajendra and Anil Mane assaulted Dattatrava with Sattur. Kailas Bhinge, the deceased at that time was sitting by the side of water tank which was in the courtyard. Appellants Ramchandra with an axe Santosh, Dhananjay alias Dahanaji, acquitted accused Laxman. Walchand and Babusha with swords started assaulting him. Appellant Tulsiram also is said to have joined them. Bhaskar Bhinge (P.W. 11) in the mean time come out; caught hold of Babushah Shah; and asked him as to why he was assaulting Kailas. Where upon he inflicted a blow from the blunt side of sword on his right thigh. Thereafter Babu Shah and Tulsiram lifted Bhaskar Bhinge and took him to the gate of the house and made him stand there. Appellants Dagadu with sword, Raja alias Rajendra Kothalkar, Anil Mane, Sunil Mane Ashok Waghmare and Ganesh Paparkar assaulted the deceased Laxman with Sattur on various parts of his body like head, face and hand. In the meantime Bhaskar Bhinge's son Mahesh Binge (P.W. 12) came and Walchand Shah inflicted a sword blow on his person. After assaulting Laxman, Kailas,' Dattatrave Bhaskar Bhinge and Mahesh Bhinge, the appellants and the acquitted accused are alleged to have run away.
This incident was seen by the victims, Rajabhau Kamble and Suresh Sobaji (P.W. 13) in electric light.
It is said that Kailas Bhinge succumbed to the injuries on the spot. Immediately after the appellants and the acquitted accused persons had run away. Rajabhau Kamble took Laxman Kamble and Pattatraya Kamble to Municipal Dispensary, Pandharpur, Bhaskar Binge and Mahesh Binge also came there.
4. The evidence of Dr. Anil J
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