MASJI TATO RAWOOL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Masji Tato Rawoo), Janabai alias Rajani and Sahadeo Atmaram Rawool (original accused Nos. 1, 5 and 6) are the three appellants in this appeal by special leave. They challenge their conviction by the Bombay High Court on State appeal against their acquittal by the Additional Sessions Judge, Ratnagiri. Originally six persons, including the three appellants, were committed by the Civil Judge and Judicial Magistrate, First Class, Sawantwadi in Ratnagiri District for being tried Under Section 148, Section 302 read with Section 149 and Section 302 read with Section 34, I.P.C. Masji Tato Rawool was in addition charged Under Section 323, I.P.C. The occurrence in question lead resulted in the death of Shankar Timji Rawool. The prosecution story may now be briefly stated.

(2.) Tato Masji Rawool, accused No. 2 resided in his house in hamlet known as Dongar Maharchi Wadi in village Namale in Sawantwadi Taluka iq Ratnagiri District. With him lived his wife Bhagirathi, (accused No. 3), his two sons Masji accused No. 1) and Bakharam (accused No. 4) and his two daughters Mathubai, aged 12 years and Janabai (accused No. 5) who was married to Shantaram Mulik of Kondure. The deceased Shankar Timaji Rawool also belonged to the Rawool brotherhood and was distantly related to the accused persons being their Bhauband. He resided in his own house in the same Wadi along with his ailing mother, his brothers Shivram, Arjun and Hari and Shiv Ram's wife Vatsala. He had two more brothers by name Vasu and Sahadeo, who resided in Bombay. There was no love lost between the family of the deceased Shankar and that of the accused Nos. 1 to 5. These two families had since about 8 or 10 years been on inimical terms with each other. Accused No. 6, Sahadeo Atmaram Rawool had his own scores to settle with the family of the deceased and his enmity with that family could also be traced back to 8 or 10 years. About a fortnight before the occurrence in question Shankar, deceased, had lodged a complaint against accused No. 6 and his two brothers for having out stems from his (Shanker's) land. On December 8, 1964 Sahadeo (accused No. 6) came to the house of accused No. 2 & started abusing Shankar who was sitting in his own house When Shankar protested the other accused persons, namely, Tato, Sakharam and Masji sided with Sahadeo and challenged Shankar to come out, threatening him with death if he did so. Shankar keep quiet. On the following day at dawn Hari and Arjun, brothers of the deceased, went to their Kolamb land with plough Shivram left his house at about 6 a.m. and went to his paternal aunt Shevantabai who lived at Kumbharwadi. At about 7 a.m. accused, Masji, Sakharam and Janabai (Nos. 1, 4 and 5 respectively) went towards their Mangar with sticks and after some time they and accused No. 6 also armed with a stick, came out of their Mangar and passed by the house of Sundarabai (P.W. 5), widow of Sonu Sawool. In the meantime Shankar also came out of his house and while going by the footway he was accosted by accused Nos. 1, 4, 5 and 6 near the spot known as Gothan. Seeing them he started running away in order to escape but they caught him and started beating him with sticks. As Shankar shouted for help, his sister-in-law Vatsalabai & other persons who were near about, hearing his call for help, came out. They saw the four accused (Nos. 1, 4, 5 & 6) beating him. Shankar, as a result of beating, fell down with his face upwards. By that time Shivram returned to his house and on being informed by his mother about the beating, he also went to the place where Vatsala was standing. In the meantime accused Nos. 2 and 3 also came out of their houses and went towards the place of occurrence. Bhagirathi (accussed No. 3) had brought with her two Palkovatas and Tato (accused No. 2) was armed with a stick. Bhagirathi gave one Palkovatas to her son Masji (accused No. 1) and the other to her daughter Janabai (accused No. 5). Janabai then gave blows with her Palkovata on the legs of the deceased. Masji (accused No. 1) gave four or five similar blows to the deceased on the right side of his chest. Hari, who also happened at that time to be coming by the road was noticed by accused No. 1 Masji who threw a stone at the former hitting him on his back. Hari fell down feeling giddy and was carried home by Vatsala and Shivnam. Shankar had by that time died on the spot. When Shankar was being attacked his black dog also came to the spot and was hit by accused No. 1. The dog was later examined by a veterinary doctor whose evidence was also recorded in the case. This, broadly speaking, is the prosecution story so far as relevant for our purpose.

(3.) The trial Court on appreciation of the evidence felt that only four accused persons (Nos. 1, 4, 5 and 6) were present at the alleged beating of the deceased with sticks and only they took part in such beating. They had encircled the deceased and given him at least 7 or 8 stick blows hitting him on the head and back. From this kind of attack, according to the trial Court, one would normally expect some weal marks or marks of contusion or some abrasions on the dead body. But none were found by the doctor as shown in her postmortem notes and her evidence in Court. On this reasoning the trial Court observed : So, this medical evidence is in direct conflict with the story of stick beating. It is difficult to believe that the beating of sticks by four persons and that too from all sides and holding the sticks in both the hands, would not leave any mark of contusion, abrasion or even a weal mark on the dead body. An attempt was made on behalf of the prosecution to suggest that the incised wounds which were seen on the dead body were caused, on the same part of the body where stick blows were given. Dr. Thakur stated in examination-in-chief, (vide paragraph 3) that if a blow was given with a stick on the same part a blow inflicted with Palkovata a fracture could be caused. But in cross-examination she has stated in clear terms that from the description of the injuries given in the postmortem notes (Ex. 22) she could not say whether stick blows were inflicted. She added that fractures were below the seat of injuries and this suggested that they must have been caused only by heavy cutting instruments. So, the medical evidence completely falsifies the version about stick beating as narrated by the prosecution witnesses. In the inquest panchanama (Ex. 31) also there is no men ion of any contusion or weal mark However, one abrasion on the left wrist over an area of one inch by one inch is mentioned. Barring this, the rest of the injuries are shown to be incised wounds and the panchas have given their opinion that the injuries appeared to have been caused by cutting weapon. Assuming that there was one abrasion, it cannot be necessarily attributed to stick beating. It may have been as well caused by falling. At any rate, if the story of the witnesses about stick beating was to be believed, then there should have been some contusions or visible marks on the dead body. Their absence goes a long way to negative the version of the witnesses regarding stick beating. The Court continued : Then the second part of the prosecution story is about beating by Palkovatas, It is the say of these witnesses that after Shankar fell down, accused No. 8 Bhagirathibai and accused No. 2 Tato, who are both old, came to the spot and Bhagirathi had two Palkovatas in her hand and accused Tato had a stick. Now, it is the say of all these witnesses that none of the accused, who were beating Shanker with sticks, were shouting. So, one fails to understand as to why Bhagirathi & Tato should come out after Shankar had fallen on the ground Their further version that Bhagirathi gave one Palkovata to Janabai appears to be somewhat improbable. Let us assume for the sake of argument that she came with two Palkovatas. But it does not look probable that instead of giving the Palkovata to accused No. 4 Sakharam, or accused No 6 Sahadeo, she would give it to her young newly wedded daughter Janabai. The final conclusions of the trial Court on the charge of rioting and murder were expressed thus : Thus, the total effect of all the evidence adduced in this case is that the evidence only creates some suspicion against the accused, but at the same time it creates graver suspicion about the veracity of the statements of witnesses who are said to have actually witnessed the incident. It is rather doubtful that they have told the whole truth and nothing but the truth. There is some force in the argument advanced on behalf of the defence that the use of the word was purposeful with a view to seeing if any others could be as well roped in. In these circumstances I think it highly risky to depend on the evidence of the so called eye witnesses. As I stated above, it is clear that some incident took place in which Shankar received injuries and accused No, 4 also received injuiees. But that does not, therefore, mean that the story told by the prosecution witnesses is necessarily true. Even looking to the story itself it appears to be improbable that accused Nos. 2 and 3, who are old persons, and accused No. 5 who is a young married girl who had come to her parents only a few days before, would take part in an attack of the type described by the witnesses. So, I am not inclined to believe that all the accused in this case formed an unlawful assembly and they went armed with sticks and Palkovatas and attacked Shankar as described by the witnesses.