DHARMA RAMA BHAGARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant in this appeal by special leave (accused no. 1 in the trial Court) was convicted by the Second Additional Sessions Judge of Thana of offences under Ss. 148, 323 and 302, I.P.C. and was sentenced to death under S. 302 and to various terms of rigorous imprisonment under Ss. 148 and 323 of the said Code. The High Court maintained his conviction and confirmed the sentence of death. He has now appealed to this Court and Shri. Dholakia, learned counsel appearing in support of this appeal has addressed lengthy arguments challenging both the conviction and the sentence.

(2.) This case is an off-shot of the unfortunate communal riots which occurred on May 7, 1970 in the town of Bhiwandi in Thana District in the State of Maharashtra. Though the trouble originally started in the town of Bhiwandi it spread to the neighbouring towns and villages. In the Thakurpada of Tansa village there lived one Abdul Khalil ged about 55 years along with his family members. This was the only Muslim family in Thakurpada. He and his wife Sahebi had ten children. Their names and ages in the order of seniority are:Shaukat (son) about 23 years, Shamsuddin (son) (who has appeared as (P. W. 1) about 19 years, Kasam (son) about 17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam (son) about 11, Fatma (daughter) about 9, Hamshera (daughter) about 4, Salim (son) about 3 and Nazar (son about 4 or 5 months). Abdul Khalil, Shaukat and Shamsuddin, all three used to work in Neviation Company at Mohila about 21/2 miles away from Tansa. Abdul Khalil was a truck driver and Shaukat, a cleaner. As communal trouble spread to other places in the district, some danger to the Muslim families in Tansa village was also apprehended. In that village there were perhaps about 5 or 6 Muslim families. On the outskirts of this village there is the great Tansa lake which supplied water to Bombay city. Mr. Khatkhate, a Hydraulic Engineer is in charge of that Lake. He has an office on the site with several employees of the Municipal Corporation of Bombay Working under him living on the site. Mr. Khatkhate met Abdul Khalil on May 12, 1970 and warned him that there was a likelihood that he and the members of his family might be attacked and that they should leave Tansa village and go to a safer place. As a result of this warning, Abdul Khalil and the members of his family abandoned their home and left Tansa village at about 6 p. m. on May 12, 1970. They went into the forest area surrounding the great Tansa lake and encamped on a hillock known as Maholi hillock about 21/2 miles away from the village. They spent the night at the hillock but having run short of water in the morning they shifted at about 10 a. m. on May 13, 1970 to the Nursery area of Tansa lake which is near the water's edge. This spot was about three or four furlongs away from Tansa village. They spent most of the day there. In the evening at about 6 or 6.30 Shamsuddin, the second son, went a little distance away from the family members to ease himself, when he saw a mob of about 30 or 35 persons armed with axes, spears and sticks coming from the side of the Tansa lake towards the place where Abdul Khalil and his family were staying. Seeing the mob approaching them Shamsuddin ran back to his parents and informed them about what he had seen. The mob was raising shouts. The members of Abdul Khalil's family feeling frightened started running in different directions. They roughly formed themselves into three groups. One group consisted of Kasam, Hanif, Nizam, Salim and Hashma, the other consisted of Jubeda, Fatma and their mother Sahebi who was also carrying in her arms the baby Nazir and the third group which was the last to leave the spot consisted of Khalil and Shaukat. As these two persons were the last to leave the spot the mob had in the meantime comes close to them. They thus become the first target of the attack by the mob. The appellant, Dharma Rama Bhagare, who was armed with a bow and arrows shot an arrow at Khalil which pierced him in the back. Khalil fell down and was surrounded by other assailants, who started belabouring him. Abdul Khalil's eldest son Shaukat seeing his father being attacked went to rescue him but he had hardly gone a few paces when another arrow discharged by the appellant struck him at the back near his right shoulder. Shaukat also fell down as a result of the injury caused by the arrow about two or three paces away from his father. He was also assaulted by some members of the mob. On seeing her husband and her eldest son being thus assaulted Sahebi raised alarm but she was also attacked by the appellant who shot the third arrow at her. This struck her on the left side above the waist with the result that she also fell down with her infant child in her arms. She died instantaneously. Some of the other members of Khalil's family hid themselves behind the trees or Karvandi bushes round about the spot whereas some of them were still running away to save themselves, Jobeda, the young daughter on seeing her father, mother and brother being shot at with arrows, shouted. This apparently annoyed the appellant who picked up a stone and flung it at her, thereby causing an injury on her hand. Budhya, one of the accused, also struck a blow at her with an iron bar thereby injuring her right hand. Shamsuddin who was hidding himself behind a tree was noticed by some of the accused persons. Budhya accused ran towards him and assaulted him with the butt end of an axe. Some of the other accused persons also assaulted him with the result that Shamsuddin lost consciousness. Thereafter the assailants left the scene of occurrence and went away. As a result of this occurrence three members of this family died on the spot whereas two members suffered injuries. After regaining consciousness Shamsuddin and the surviving members of the family seeing their parents and eldest brother dead, were so terrified that they left the dead bodies at the scene of the occurrence and picking up their belongings proceeded on foot towards Shahpur town in the Taluk headquarters where one Gafoor a brother-in-law of Shamsuddin lived. Sending Kasam, Hanif and Nazir to the house of Gafoor, Shamsuddin himself along with others went to the police station. At the police station there was only a head-constable by name Bendhari (P. W. 4) who found Shamsuddin not in a fit condition to make a statement. Shamsuddin, who had sustained many injuries, was soaked in blood. The head-constable, therefore, after making an entry to this effect in the Station Diary, sent Shamsuddin and Jubeda to Shahpur dispensary for treatment. At about 10 o'clock in the morning of May 14, 1970 the police Sub-Inspector in charge of the police station, Dattatreya Potdar (P.W. 13), came to the police station and on being apprised of Shamsuddin and Jubeda having gone to Shahpur for treatment he sent for Shamsuddin from the dispensary and recorded the first information report, Ex. 4. After registering the offence he took up the investigation. He sent for Kasam from Gafoor's house and proceeded with him to the scene of the occurrence, reaching there at about 2 p.m. They remained there till about 5 p.m. The Sub-Inspector prepared panchanamas of the dead bodies and of the scene of the offence. The scene of the offence was about 400 ft. away on the southern side of Tansa lake in the area known as Nursery. Underneath the dead body of Abdul Khalil was found an arrowy which had blood-stains on it. The exact words of the panchanama relating to the recovery of this arrow are:"There is seen an arrow and a bow pressed in the stomach between both the legs of the deceased. On taking the arrow out it is found that its length is 5" and is of iron". On examination by the Chemical Analyser the stains on this arrow were found to be of human blood. Thereafter the three dead bodies were sent through constable Mahadik to the Medical Officer at Shahpur for post-mortem examination. After proceeding to Tansa village the Sub-Inspector arrested the appellant along with eight other persons at about 8 p.m. They were accused nos. 1 to 9 in the trial Court. The following morning, that is, May 15, 1970 the P.S.I. recorded the statements of Kasam and Jubeda, Hanif was also called but as he was crying all the time he was not able to make any statement. On May 16, 1970 the appellant made a statement leading to the recovery of a bow and four arrows from a spot in Karvandi shrubs about 85 paces away from his house. The recovered bow and four arrows were exhibited as 11, 11a, 12a, 12c and 12d. These articles were hidden under dry leaves. One of the arrows had blood stains on it but on examination the stains being disintegrated it could not be said if they were of human blood. The statement of Hanif was recorded by Vishwanath, Police Inspector in July, 1970 after he had taken over the investigation.

(3.) The Additional Sessions Judge, Thana, who tried the case relied on the evidence of Kasam (P.W. 2) Jubeda (P. W. 3) and Hanif (P.W. 5). These witnesses, according to the trial Court, had not displayed any tendency to introduce falsehood in their statement though it felt that the evidence of Hanif (P.W. 5) should be read with a certain degree of care and caution because of his statement having been recorded by the investigating authorites more than two months after the occurrence. For accepting Hanif's evidence, therefore, the trial Court required corroboration. With respect to the evidence of Shamsuddin (P.W. 1), however, the trial Court felt that it was not safe to rely on his testimony because his statement in Court was at variance with the statement in the information lodged by him with the police. On the basis of the testimony of P.Ws. 2, 3 and 5 the trial Court came to the conclusion that the appellant was definitely at the scene of occurrence with bow and arrows and was a member of the unlawful assembly and further that he had shot the arrows at Abdul Khalil his eldest son Shaukat and his wife Sahebi the three deceased victims of the unfortunate occurrence. In that Court's opinion the three witnesses had no reason to screen the real offenders and to falsely implicate the appellants.