HIMMAT SUKHADEO WAHURWAGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the judgment of the Bombay High Court dated 24th April, 2007 whereby the State appeal against acquittal against the judgment of the Additional Sessions Judge, Akola has been allowed and the accused convicted and sentenced for offences punishable under Section 302/149 of the IPC etc. The facts are as under :

(2.) At about 4 p.m. on 11th June, 1989 Babarao Kolhe, his brother Jaidev Kolhe and grandson Sanjay PW-1 residents of village Panaj, went to plough their fields, about one-and-a half kilometers away from the village. As they were returning home in their bullock cart, they were waylaid by the eight accused, variously armed with axes and sticks who attacked Babarao and Jaidev. Sanjay escaped from the spot and reached home and informed his grandfather Namdeo Kolhe about what had happened, giving details of the injuries caused by each of the accused. In the meantime, the bullock cart sans Babarao and Jaidev too returned to the residence in the village. Namdeo Kolhe thereupon called his sons Dadarao and Wasudeo and along with several other persons went in search and found Babarao and Jaidev lying seriously injured in the field of one Vishwanath Akotkar. It is the case of the prosecution that Jaidev made a dying declaration to Dadarao that the eight accused had beaten him and Babarao. The two injured were thereafter taken homeward and as the party entered the village Namdeo and the others received information that the accused were searching for them as well so that they too could be killed. Dadarao and Wasudeo thereupon left the cart and returned home by a circuitous route. Namdeo then left for the house of the Police Patil accompanied by his grandson Bhimrao PW-4 and Deokabai PW-5 but he too was assaulted along the way by the accused. Bhimrao rushed back home and narrated the incident to his mother Shantabai and to his father. The accused also threatened Deokabai that they would kill her as well on which she made a hasty retreat to her home. Wasudeo then went to Karla to send a message to the Police at Akot on phone, but he could not get the connection on which the operator asked him to call the police at Anjangaonsurji Police Station. The message was accordingly conveyed by the Anjangaonsurji police to Akot police station on which PSI Thombre recorded the message in the Daily Diary and also informed Inspector Patil PW-14 about the incident. This police officer reached Panaj at about 1:00 a.m. and on enquiry found that Babarao, Jaidev and Namdeo were dead. He then recorded the statement of Dadarao on which a First Information Report under Section 302 r/w Section 34 of the Indian Penal Code was registered. The Police also started on the investigation and sent the dead bodies for the post-mortem examinations. The accused, who did not make an attempt to run away, were arrested from the village the very same day and on their disclosure statements, the weapons of offence as also bloodstained clothes were recovered. On committal the Additional District Judge framed charges under Sections 147, 148 and 149 r/w Section 302 of the IPC against the accused. The Trial Court in the course of a somewhat laboured judgment held that the deposition of Sanjay PW-1, the solitary eyewitness to the murders of Jaideo and Babarao, could not be believed as his conduct belied his presence inasmuch that after reaching home he had hidden himself in the house of one Abgad and had not reported the matter to his neighbours. The Court also held that the graphic details of the injuries caused by each of the accused made his story improbable. The statements of Dadarao PW- 2, to whom Jaideo (deceased) had made a dying declaration and Wasudev PW-3 naming the accused as their assailants were also discarded, on the premise that there were many improvements vis-avis their statements under Section 161 of the Cr.P.C. The Trial Court also observed that the witnesses were closely related to the deceased and to each other and as there appeared to be no plausible motive for the murders and the delay in the lodging of the FIR were other factors which cast a serious doubt on the prosecution's story. The Trial Judge accordingly, by his Judgment dated 20th February 1991, acquitted the accused. On appeal the High Court observed that the finding of the Court that the eye-witness account was unreliable was erroneous, the more so as Sanjay, who was a witness to the first two murders, though a child, was absolutely reliable. The Court also found that the testimonies of PW-4 Bhimrao, PW-5 Deokabai and Anandrao PW-6 with respect to the assault and murder of Namdeo too were reliable and had to be accepted. The High Court also observed that the finding of the Additional Sessions Judge that there was no apparent motive for the murders was, on the face of it, unacceptable as it was the admitted position that in 1981, Namdeo (deceased) and his sons had been prosecuted for an attempt to murder Sukhdeo, father of accused Nos. 1 to 5 and had been convicted and sentenced to rigorous imprisonment for five years but on appeal in the High Court, the sentence had been reduced to three years whereafter the accused had been released from jail in February 1989. The High Court, thus, deduced that the present incident, which took place on 11th June 1989 was a fall out of the incident of 1981 and had occurred about four months after the accused had been released from jail. The Trial Court further held that the medical evidence given by Dr. Jaiswal PW-7 and the Chemical Examiner's report corroborated the eye-witness account. The Court also believed the statement of PW-2 Dadarao with respect to the dying declaration made by Jaideo. Having recorded its findings on these basic issues, the High Court reversed the order and judgment of acquittal and convicted all the accused for offences punishable under Sections 147, 148 and 302 r/w 149 of the Indian Penal Code and sentenced each of them as under; two year's rigorous imprisonment for the offence punishable under Section 147 of the Indian Penal Code, three year's rigorous imprisonment for the offence under Section 148 and to imprisonment for life and a fine of Rs. 5,000/- in-default to suffer rigorous imprisonment for one year for the offence punishable under Section 302 r/w Section 149. It is in this background that the matter is before us by way of Special Leave.

(3.) At the very outset, it has to be pointed out that the two warring groups belong to Village Panaj, live in the same locality and belong to the same caste. They are also, within themselves, very closely related inter se. Namdeo (deceased), was the father of Babarao and Jaideo (deceased) whereas Dadarao PW-2, and Wasudeo PW-3 are his sons and PW-1 Sanjay is the son of Babarao whereas Bhimrao PW-4 is the son of Dadarao aforesaid and Shantibai PW-10. Likewise we see from the record that the appellants-Himmat, Siddhartha, Gautam, Anil and Sanjay Kumar are brothers; Waman is an uncle of the above-mentioned accused whereas Prakash and Suresh are his sons.