SUPREME COURT OF INDIA

 

Naresh Mohanlal Jaiswal

 

Vs.

 

State of Maharashtra

 

Crl.A.No.95 of 1989

 

(M. K. Mukherjee and S. P. Kurdukar, JJ.)

 

09.10.1996

 

JUDGEMENT

 

S. P. KURDUKAR, J.:-

 

1. The appellant-original accused No. 2 along with 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 Section 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 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 has 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 Kawada 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 along with 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 Udeyshankar 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 Udeyshankar 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 Mangrukar (PW 6) and Dadarao Thakre (PW 7) resident of village Bhari had then come to Yavatmal 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. Udeyshankar 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 road, was Udeyshankar 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  persons 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, I. P. C.; 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 along with 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 an  eye account of the assault caused on Ramesh Partil.

 

9. At the outset, it 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 autospy 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 reliacne whatsover could be placed on their evidence. While supplementing this argument, he urged that they were partisan witness 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 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 no substance whatsoever in any of these submissions. It is true that the statements of both these withnesses under Section 161 of the Code 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 house 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 bereaved 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  Article 136 of the Constitution and it is not possible to discredit their evidence.

 

10A. 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 policed 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  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 not 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. Leanred counsel, therefore, urged that the evidence collected by investigating officer was of partisan witness 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-witneses 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 tainted 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 the presence of  human blood stains of 'A' Group 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 Yavatmal to village Bhari at about 6.00 p. m., they saw Udeyshankar Dixit along with the pillion rider on Luna of blue colour and the appellant on another Luna of brown colour with the pillion rider who over-took 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 a corroborative circumstance in favour of the prosecution and the  Court 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 the 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 submission made 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 no error in affirming the conviction and sentences 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.

 

            Appeal dismissed.