Partly allowed

State v. a.D.Bhekare and Ors. v Arjun D.Bhekare and Ors.

Bombay HC6 Aug 2004APEAL/40/1993

Case brief

AI extract

What is this about?

In an appeal against acquittal of three accused charged with murder and criminal intimidation, the High Court upheld the conviction for murder but interfered with the sentence, confirming the Sessions Court's acquittal on charges of criminal intimidation.

What did the court decide?

Accused convicted of murder and sentenced to R.I. for life; acquittal on charges of criminal intimidation confirmed; bail bonds cancelled.

State vs. a.D.Bhekare and Ors. Vs Arjun… — Murder and Culpable Homicide | Bombay HC (2004)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE SIDE

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CRIMINAL APPEAL NO.40 OF 1993

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 The State of Maharashtra.
 ....Appellant.
 Vs.
 1. Arjun Dattaram Bhekare,
 Age 55 years.
 2. Atmaram Arjun Bhekare,
 Age 26 years.
 3. Santosh Arjun Bhekare,
 Age 19 years.
 All R/o. Pat-Panhale,
 Taluka- Guhagar,
 Dist. Ratnagiri.
 ....Respondents.

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 Ms. P.H. Kantharia, APP. for the Appellant-State.

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 Mr. Prakash Naik, Advocate for the
 Respondents-Accused.

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 .............
CORAM: R.M.S.KHANDEPARKAR &
R.S.MOHITE, JJ.

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 DATED: 6TH AUGUST,2004

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 ORAL JUDGMENT : ( PER R.S. MOHITE, J. )

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 1. This appeal is filed by the State of Maharashtra
 seeking to quash and set aside the Judgment and order

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 dated 6.11.1992 passed by the Sessions Judge, Ratnagiri
 in Sessions Case No.48 of 1992 acquitting the
 respondents (hereinafter referred as "Accused Nos. 1
 to 3" respectively) from the charge under Section 302
 read with Section 34 of the Indian Penal Code.

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 2. The brief facts of the prosecution case are as
 under:

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 a) That, the deceased Yeshwant Laxman Bhekere was the
 son of P.W.No.5-Laxmi Laxman Bhekare and he was
 residing alongwith Laxmi at Village Pet Panhale, Taluka
 Guhagar, Dist. Ratnagiri. That, on 25.12.1991 at
 about 7.30p.m. P.W.No.5-Laxmi Bhekare heard a cry "bay
 bay" and went towards that sound. When she reached the
 house of one Parvati Vishnu Bhekare she saw Accused

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 No.1 Arjun, Accused No.2-Atmaram and Accused

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 No.3-Santosh assaulting Yeshwant with ribs. Laxmi

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 tried to intervene and made a request to the accused
 not to beat her son Yeshwant. However, all the accused
 dragged her and she fell down and suffered injuries on
 her knee and shoulder. In the mean while, P.W.No.6
 Gangabai and P.W.No.7 Santosh arrived at the spot.
 Santosh was carrying a battery with him. In the light
 of battery and also in the light of bulb under the roof

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 of the hut of Parvati Vishnu Bhekare, P.W.No.6 and

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 P.W.No.7 Gangabai and Santosh also saw the accused
 beating the deceased Yeshwant with wooden ribs.
 Gangabai and Santosh also saw P.W.No.5 Laxmi on the
 spot. On seeing Gangabai and Santosh accused abused
 and threatened them and therefore, these witnesses left
 the spot in fear of accused. P.W.No.5 Laxmi alone
 remained there with her injured son. Yeshwant died on
 the spot. Laxmi then went to her house.

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 b) P.W.No.2 Ramdas Chavan was the Police Patil of
 Village Pet-Panhale. He had stated that at about 8 or
 8.30p.m. on 25.12.1991 accused No.1 came to his house
 in a frightened state of mind. He informed him that he
 and his two sons had killed Yeshwant Bhekare. Police
 Patil alongwith accused No.1 came to Bhekare wadi Mala
 which was the spot of the incident. They found that
 there was a bulb on the wooden pole in the padvi of
 Parvati Vishnu Bhekare. Since he found that the light
 was insufficient, he applied his torch and he saw that
 Yeshwant Bhekare was lying facing the sky in a pool of
 blood. He found injuries on the person of Yeshwant.

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 The body was lying at a distance of 27 to 28ft. from
 the house of Parvati Vishnu Bhekare. He called at the
 house of Parvati Vishnu Bhekare but nobody opened the

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 door. He then went to the house of Parvati Bhekare. (
 In the evidence name Parvati Laxman Bhekare, instead of
 Laxmi Laxman Bhekare, was referred). He found that
 Parvati was crying. She disclosed to the Police Patil
 that Arjun and his two sons had killed Yeshwant by
 wooden ribs. He then carried Arjun -accused No.1 to
 Guhagar Police Station which was situated 4/5 K.M.
 away from the village. In the Police Station, P.W.No.8
 P.S.I. Mhatre was present. The Police Patil informed
 the P.S.I. Shri. Mhatre that he had brought Arjun
 alongwith him. That Arjun had confessed him that he
 had killed Yeshwant Bhekare. The information given by
 the Police Patil was reduced into writing as the First
 Information Report (Exh.41) and on this basis C.R.No.79
 of 1991 was registered by the police at Guhagar Police
 Station for an offence under Section 302 of the Indian
 Penal Code.

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 c) As the accused No.1 was also present in the police
 station, P.W.No.8 Bhaskar Mhatre arrested accused No.1
 under panchanama (Exh.16). Under the same panchanama
 he seized the Articles 1, 2 and 3 which were the blood
 stained clothes and blood stained chappal belonging to
 accused No.1. P.W.No.8 P.S.I. Mhatre then informed
 Dy.S.P. Chiplun by a wire less message regarding the

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 registration of the offence. He came to Village Pet
 Panhale alongwith his staff and went to visit the spot
 of the offence. He arranged for keeping a police watch
 at the spot where the dead body of Yeshwant was lying,
 as it was night time. In the morning on 26.12.1991, at
 about 2.45a.m. he arrested the accused Nos. 2 and 3
 under panchanama (Exh.17). He attached their clothes
 which were blood stained under the same panchanama and
 the clothes which were attached from accused No.2
 Articles- 6, 7 and 8 before the court.

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 d) Thereafter, between 6.20a.m. to 7.a.m. on

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 26.12.1991, P.W.No.8 P.S.I. Mhatre prepared an inquest
 panchanama of the dead body of the deceased Yeshwant
 Bhekare (Exh.18). He noticed in all 18 wounds on the
 dead body. Thereafter, he arranged to send the dead
 body for post mortem. He then prepared the scene of
 offence panchanama (Exh.19) and from the scene of the
 offence he seized one leather chappal lying there. On
 the same day, he recorded the statements of three
 witnesses namely Parvati Vishnu Bhekare, Gangabai
 Shivram Bhekare and Santosh Vishnu Bhekare. He then
 arranged to send the injured mother of the deceased
 Laxmi to the Government Hospital for clinical
 examination and treatment. On 26.12.1991 all the

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 accused showed their willingness to show the wooden

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 ribs used in the crime. He therefore, recorded a
 memorandum panchanama which appears to be a joint
 memorandum of accused Nos. 2 and 3 (Exh.20).
 Thereafter, accused persons led the police to Bhekare
 wadi near the house of Shivram Bhekare and accused
 produced wooden ribs from behind the bushes near the
 house of Shivram Bhekare. Same were attached under a
 panchanama (Exh.20A). Articles 9 to 12 were the same
 wooden ribs which have been used as weapons in the
 crime and which were attached under the said
 panchanama. Thereafter, on 26.12.1991 between 12.05 to
 12.25p.m. the clothes of the deceased were produced by
 Head Constable Sashe from the hospital and were
 attached under panchanama (Exh.24). These clothes of
 the accused were Articles 15 to 19 before the court.

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 e) Thereafter, at about 1.00p.m. the Deputy

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 Superintendent of Police (P.W.No.9) Anand Mandya came

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 to Guhagar and took over the charge of the
 investigation. During the investigation, he recorded
 the statements of Laxmibai Laxman Bhekare, Gangabai
 Ganpat Bhekare and others on 26.12.1991. He attached
 the battery torch which was produced by Gangabai Ganpat
 Bhekare in the presence of two panchas. This

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 panchanama was drawn between 1.30 to 2.00p.m. On that
 very day, at about 4.00 p.m. he attached sample wooden
 rib from a heap of ribs lying near the house of Shivram
 Soma Bhekare under panchanama (Exh.21). The sample
 wooden rib was produced as Article-21 before the Trial
 Court.

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 f) On 9.1.1992, P.W.No.9-Anand Mandya, the

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 Investigating Officer received the Medical Certificate
 in respect of the clinical examination of the injured
 Laxmi Laxman Bhekare. On the same day, he sent
 articles attached to the Chemical Analyser for chemical
 analysis. He received C.A. report and thereafter, he
 filed the charge-sheet against all the three accused
 persons on 27.3.1992 in the court of J.M.F.C. Chiplun.

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 3) After the case was committed to the Court of
 Sessions, the Trial Court framed the charge against the
 accused persons under Section 302 read with 34, Section
 504 read with Section 34 and Section 506 read with
 Section 34 of the Indian Penal Code. During the Trial,
 the prosecution examined as many as nine witnesses to
 prove its case. Amongst these, three were eye
 witnesses i.e. P.W.No.5-Laxmibai, P.W.No.6-Gangabai
 and P.W.No.7-Santosh. P.W.No.2 Ramdas Chavan who was

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 the Police Patil was examined by the prosecution to
 prove the extra judicial confession said to have been
 made by the accused Arjun at about 8.00p.m. on
 25.12.1991. P.W.No.3- Sudhakar Pandurang Chavan was
 examined as a panch on the joint recovery and the two
 panchanamas of memorandum and discovery were proved
 through this witness and exhibited as (Exh.20) and
 Exh.(20A) respectively. P.W.No.4 -Naresh Waman
 Dhamankar was examined as a panch witness in respect of
 the panchanama under which the clothes of the deceased
 were seized. P.W.No.1 Dr. Subhash P. Jawalagikar was
 the doctor through whom the prosecution proved the post
 mortem notes. He was the same doctor who had also
 examined injuries caused to P.W.No.5 Laxmi. He proved
 injury certificate issued by him to P.W.No.5 Laxmibai

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 (Exh.12). The prosecution also examined two
 Investigating Officers i.e. P.W.No.8 P.S.I. Bhaskar
 Mhatre and P.W.No.9- Deputy Superintendent of Police
 Anand Mandya. The prosecution also proved the C.A.
 report (Exh.40) and also other relevant documents.

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 4) So far as the defence of the accused was concerned
 though in their Statements under Section 313 of
 Criminal Procedure Code, there was no positive case put
 up by the accused, yet from the suggestions made in the

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 cross examination to the witnesses, it appears to have

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 been the defence case that the three accused had gone
 to Guhagar and when they were coming back they came
 across a person lying on the ground. They identified
 him as Yeshwant who appeared to be injured. They tried
 to lift him for reaching him to his house and that
 after having found him dead they threw him down and
 thereafter, accused Arjun went to the Police Patil to
 inform him that Yeshwant was lying dead and accused
 Nos. 2 and 3 went to their home.

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 5) After considering the evidence led by the

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 prosecution and the statements recorded under Section
 313 of the Criminal Procedure Code, for the reasons
 mentioned in the Judgment, the Trial Court acquitted
 all the accused from the charges which has led the
 State to file the present Criminal Appeal. We have
 heard the learned Advocate for the accused and the
 learned A.P.P. and perused the record.

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 6) Firstly, it is necessary to deal with the
 prosecution case as has been unfolded through the
 evidence of the three eye witnesses P.W.No.5 Laxmibai,
 P.W.No.6 Gangabai and P.W.No.7 Santosh.

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 7) P.W.No.5 Laxmibai stated in her evidence that she

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 was the mother of the deceased Yeshwant. That, on the
 day of the incident i.e. 25.12.1991 at about 7.30p.m.
 he heard cry "bay bay" and so she went towards that
 sound. She reached in front of the house of Parvati
 Vishnu Bhekare. She saw accused Nos. 1 to 3
 assaulting her son with ribs. She tried to intervene
 but all the accused pushed her and therefore, she fell
 down and received injuries on her knee and shoulder.
 In the mean while P.W.No.6 Gangabai and P.W.No.7
 Santosh came to the spot. They were having a battery
 with them. However, since they were threatened by the
 accused, they left the spot. She remained there.
 Deceased Yeshwant was lying in a pool of blood. She
 stayed there for some time and then left the spot.
 Yeshwant was lying on the spot. After some time Police
 Patil came to her house for making an enquiry. She
 informed him the names of the assailants. He then went
 away. On the next day morning she was sent for medical
 examination. She did not know why Yeshwant was killed.
 In her cross examination she interalia stated that she
 did not know whether during the life time of Yeshwant
 there was any talk in the wadi that Yeshwant was
 maintaining illicit relations with the ladies of their
 wadi. She did not know whether villagers had made any

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 such complaints to the Police Patil. She stated that
 though there were complaints of the villagers, nobody
 had caught Yeshwant red handed. She denied that her
 son Yeshwant indulged in such activities. She stated
 that the accused persons were residing at a distance of
 100 paces from her house. She stated that height of
 the roof of the house of Parvati was about 4ft. from
 the ground and the night bulb was below the roof in a
 hanging condition. That, the power of the bulb was of
 low wattage. That the distance of the spot of incident
 was 50 paces from the eastern border of the courtyard

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 of the house of Parvati Vishnu Bhekare. That, on
 hearing the shouts of her son Yeshwant, she must have
 crossed 50-paces till she reached the spot from where
 she witnessed the incident. She stated that the entire
 incident of assault lasted for 30 minutes. She stated
 that she had disclosed the names of all the three
 accused to the Police Patil. She denied that she did
 not hear the shouts of her son Yeshwant. She denied
 that while reaching the spot alongwith Police Patil,
 she fell down and sustained injuries. She stated that
 her age was about 70 to 75 years. She admitted that
 she has not specifically stated in her police statement
 that Santosh was carrying a torch. She further
 specifically stated that Gangabai and Santosh were

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 given threats by the accused. She further admitted
 that she had not disclosed in the police statement that
 she had disclosed the names of the accused to the
 police patil. The defence version stated above was put
 to this witness. She denied that due to darkness at
 the spot of the incident, nobody has noticed anything
 on the spot. She denied that she was not present near
 the actual spot of the incident. She denied that
 Yeshwant was killed by somebody else due to previous
 enmity caused by his immoral character.

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 8. The second eye witness P.W.No.6 Gangabai stated in
 her evidence that on the day of the incident at about

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 7.30p.m., she heard the cry of the deceased Yeshwant
 "bay bay Mala Vachava". She came out of her house
 alongwith her son Santosh and went to the spot of
 incident with a torch. Torch was being carried out by
 her son Santosh. They came in front of the court yard
 of the house of Vishnu Bhekare. She saw that Arjun and
 his sons Atmaram and Santosh were beating Yeshwant by
 wooden ribs. The mother of Yeshwant was present there
 and was trying to save her son Yeshwant by intervening.
 She took the torch from Santosh and lit it. At that
 time accused Santosh abused them and asked them as to

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 why they had lit the torch. She was also threatened by
 accused Santosh. P.W.No.6 Gangabai and P.W.7 Santosh
 then went back to their house. Subsequently, during
 the investigation, the police attached the said battery
 and she identified the accused and the battery torch
 which has been used by her for witnessing the incident.
 In her cross examination she stated that after hearing
 the cries of the deceased she had crossed a distance of
 100 paces to reach the spot of the incident. When she
 heard the shouts she was cooking food in the kitchen.
 She further stated that the battery torch was purchased

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 in Bombay prior to one year. She and P.W.No..5
 Laxmibai were at the same distance from the spot of
 incident. That they immediately returned from the spot
 because of the threats. She further deposed that it
 was possible to see the spot of incident though there
 was darkness. She denied that she could not see the
 spot because of long distance. She denied that she and
 her son Santosh did not go to the spot of incident with
 a battery torch and did not witness the incident. She
 admitted that she had not specifically told the police
 that she had taken the battery torch in her hands from
 the hands of her son Santosh. She admitted that she

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 has not stated in her police statement that Santosh had
 abused them when they lit the battery torch. She

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 admitted that her husband Ganpat and the deceased
 Yeshwant were distant cousin brothers. She denied that
 she was deposing falsely because she was related to
 Yeshwant.

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 9. P.W.No.7 Santosh Ganpat Bhekare the third eye
 witness and the son of P.W.No.6 Gangabai stated that he
 witnessed the incident. He further stated that on the
 day of the incident at about 7.30p.m,. he and his
 mother were in their house. At that time they heard
 the shouts "bay-bay". Hence, he and his mother went to
 the spot of incident with a battery torch. He came to
 the spot and saw in the light of the battery torch that
 the three accused Arjun, Atmaram and Santosh were
 beating Yeshwant with wooden ribs. The mother of the
 deceased Yeshwant was present there. The accused No.3
 abused them for lighting the battery torch and
 therefore, he and his mother left the spot and went to
 his house. In the cross examination, he has stated
 that the said torch had been purchased about 4 years
 back. He admitted that on hearing the shouts, he and
 his mother did not raise a hue and cry. He denied that
 he raised shouts and as it was dark, it was not
 possible to see or identify any person on the road. He
 admitted that there were other houses of Bhekare near

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 the house of Vishnu Bhekare. He stated that he had
 witnessed the incident. He further deposed that
 initially he was holding the torch and then it was
 taken by his mother. He denied that he and his mother
 had never gone to the spot of incident. He denied that
 he was deposing falsely because of his relationship
 with the deceased Yeshwant.

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 10. The submissions made by the defence can be stated
 as under:

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 a) That, none of the eye witness could have seen the
 assault because there was no sufficient light at the
 place where Yeshwant was alleged to have been
 assaulted. In this regard reliance was placed on the
 evidence of P.W.No.2 Police Patil Ramdas Gangaram
 Chavan who had stated that when he arrived at the spot
 he found that the bulb on the wooden pole of Padvi was
 giving insufficient light. He was having a torch and
 he lit the torch and in the light of torch he saw that
 Yeshwant Bhekare was lying facing the sky in a pool of
 blood. He had further pointed out that witnesses
 P.W.No.6 and 7 were also required to take a torch which
 was further indication of the fact that there was

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 insufficient light. In this regard he further
 contended that P.W.No.5 had admitted in her cross
 examination that the height of the roof of the padvi of
 Parvati was 4ft. and the light bulb was below the roof
 in a hanging condition and that the power of the bulb
 was of low wattage.

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 b) It was then contended that the entire evidence
 relating to witnesses P.W.No.6-Gangabai and P.W.No.7
 Santosh shows that they had seen the incident in the
 light of a torch and the same should be disbelieved
 because the evidence relating to the production of the
 torch had infirmities. He contended that the
 panchanama dated 26.12.1991 (Exh.22)_ under which the
 said torch was produced and seized indicated that the
 panchas were called in front of the house of Parvati
 Vishnu Behkare and were informed that Gangabai Bhekare
 who had witnessed the incident was producing the torch
 with which she had seen the accused. It was at this
 stage that the torch was produced. It was contended
 that the evidence of P.W.No.6 Gangabai was contrary to
 the version as contained in the panchanama since she
 has not categorically stated that the torch was seized.
 That, if the torch was in her own house, normally the

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 police would have seized the torch from her own house.

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 c) That P.W. No.6 Gangabai had omitted to state in her
 police statement that she had taken the battery torch
 from the house and it was in the hand of her son
 Santosh and she had further omitted to state in her
 police statement that the accused had threatened on the
 occasion of her lighting the torch.

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 d) The prosecution had not examined any independent
 witness from the locality though there were an
 admissions from the witnesses that there were other
 houses situated at a distance of about 40 to 50 paces
 from the place of the crime. That from the evidence,
 it was revealed that all the three witnesses were
 related to deceased and they were interested witnesses.

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 e) Though the evidence of Laxmi showed that she had
 disclosed the names of the assailants to the Police
 Patil, P.W.No.2 Ramdas Chavan had not corroborated the
 evidence of P.W.No.5 who but had in fact stated that
 the enquiry was made by him from Parvati Bhekare.

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 11. On the aforesaid contentions of the defence, the
 reply of the prosecution was that merely because the

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 three eye witnesses were related to the deceased

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 Yeshwant, that by itself would not be sufficient ground
 to discard their evidence. At the highest their
 evidence could be carefully scrutinized. The record
 indicated that there was sufficient light at the spot
 of the incident. In this regard, it could not be
 forgotten that the accused were residents of the same
 village, residing 200-paces from the house of the
 deceased. That, even assuming that the bulb at the
 spot of incident was dim and some of the eye witnesses
 had in fact used a torch, that by itself could not lead
 to the conclusion that there was insufficient light to
 notice the incident.

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 12. The prosecution then contended that the omissions
 in the evidence of P.W. Nos. 5 and 6 were absolutely
 minor and irrelevant and were not in the nature of
 material contradictions. It was contended that the
 evidence of Laxmi was corroborated by several
 circumstances including the injuries suffered by her.
 That, though the Police Patil had stated that Parvati
 Laxman Bhekare had disclosed the names of the
 assailants when he came to the house of Parvati, P.W.
 No.5 Laxmi who had stated that she had disclosed the
 names of the accused to him was an alias for Parvati.

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 13. After analysing the evidence of the eye witnesses,
 it is apparent that P.W.No.5 Laxmi Bhekare was the
 mother of the deceased Yeshwant. In that sense she may
 be an interested witness, yet this fact alone cannot be
 a pround for totally discarding her evidence. The law
 relating to interested witnesses is that their evidence
 is required to be scrutinized with care and caution.
 It cannot be said that the presence of P.W.No.5 was
 unnatural. The record states that the house of
 P.W.No.5 Laxmi was situated at a distance of 200-paces
 from the spot of the incident and that is not a very
 long distance. The shouts in the evening time in the
 village and a cry for help can easily be heard from the
 distance of 200ft. She claims to have come to the spot
 of the incident on hearing the cries for help given by
 her son Yeshwant. The fact that Laxmi had came to the
 spot and her version as to what happened there is
 independently corroborated by several other witnesses.
 Her presence at the spot is expressly deposed to by
 other witnesses P.W.No.6 Gangabai, P.W.No.7 Santosh.
 These witnesses also corroborate her evidence that she

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 was trying to save her son. Laxmi stated that when she
 was trying to free her son, she was dragged by the
 accused and therefore, she fell down whereby she

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¶89

 received injuries on her knee and shoulder. The fact
 that this witness received such injuries is
 corroborated by other evidence on record. P.W.No.8
 P.S.I. Bhaskar Mhatre has stated in his evidence that

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 when he arrived at the spot on 26.12.1991 during
 investigation he found that Laxmi-the mother of the
 deceased had suffered injuries and she was required to
 sent for medical examination to Government Hospital,
 Guhagar. The injuries sustained to P.W.No.5 Laxmi were
 then stated by Dr. S.P. Jawalagikar. He stated that
 when he examined injured Laxmi at about 10.30a.m. on
 26.12.91, he found two injuries on her person. They
 are described as under :

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 1) Contusion with abrasion size 2cms. x2 cms.
 on right shoulder.

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 2) Contusion 3CMs. x2 cms. on left knee joint.

¶93

 He opined that both the injuries were simple and could
 be caused due to a hard and blunt object.

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 14. The Medical Certificate (Exh.12) issued by him was
 proved by the prosecution and the same also
 corroborated the evidence given by him. The said

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¶96

 certificate indicated that the injuries had been caused
 within 24-hours. This evidence specifically
 corroborated the evidence of P.W.No.5 Laxmi and helps
 in establishing that her version is true. The evidence
 of P.W.No.5 Laxmi to that effect that she narrated the
 names of the assailants to the Police Patil when he
 visited her house is clearly corroborated by P.W.No.2
 Ramdas Chavan. The evidence of P.W.No.2 discloses that
 Parvati Laxman Bhekare was residing with Yeshwant.
 When he visited the house of Parvati, she told him that
 Arjun and his two sons killed Yeshwant by wooden ribs.
 It must be remembered that, P.W.No.2 Ramdas Chavan had
 lodged the F.I.R. (Exh.14). A glance of the F.I.R.
 would also indicate that this witness had categorically
 stated in the F.I.R. that Parvati Laxman Bhekare was
 the mother of Yeshwant. The F.I.R. further discloses
 that she had stated therein that her son Yeshwant was
 killed by Arjun, Atmaram and Santosh with wooden ribs.
 P.W.No.5 Laxmi claims to be the mother of the deceased
 Yeshwant. As Yeshwant cannot have two mothers, it
 obvious that P.W.No.5 Laxmi is Parvati Laxman Bhekare
 referred to in his evidence by Ramdas Chavan. Hence,
 there is corroboration as regards the disclosure made
 by Laxmi.

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¶98

 15. P.W.No.6 Gangabai and P.W.No.7 Santosh are the
 other two eye witnesses who also support the story
 given by P.W.No.5 Laxmi. They assert to have seen the
 accused persons assaulting the deceased Yeshwant. In
 our view the discrepancies in their evidence as to when
 the torch was purchased is of little value or
 relevance. Similarly, the omission in the statement of
 P.W.No.6 Gangabai to the effect that she had omitted to
 state before the police about her taking the torch from
 her son is also too minor and does not amount to a
 material contradiction. Laxmi, Gangabai and Santosh
 are rustic witnesses from the village. The defence has
 not brought on record any reason as to why these
 witnesses would falsely implicate the accused.

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 16. As regards the ability of these witnesses to see
 the entire incident in the light available, a reference
 to the scene of offence panchanama which sheds light on
 the nature of lighting available on the spot of the
 evidence would be useful. It is mentioned in the scene
 of offence panchanama that the spot of the incident was
 in front of the padvi of Parvati Vishnu. The place of
 offence was at a distance of 28ft. on the east side
 from the court yard of the house of Parvati Vishnu.

¶100

 :-23-:

¶101

 That the place of offence was the place where deceased
 Yeshwant was beaten and the dead body was lying. It is
 further mentioned that in the middle of the padvi of
 the house of Parvati Vishnu Bhekare and electric bulb
 of 100 watts was fixed on a wooden pole. Parvati
 Vishnu Bhekare was present in person and was made to
 switch on the bulb to ascertain that the bulb was in a
 working condition. In our view, taking into account
 the fact that the accused and eye witnesses are from
 the same village residing at a short distance from each
 other and light from a 100 watts bulb was available, it
 cannot be said that the light was insufficient to
 witness the incident and identify the assailants. In
 our view the evidence of these witnesses is clear,
 cogent, acceptable and corroborated by several other
 circumstances and can form the basis of conviction.

¶102

 17. The second clinching circumstance against the
 accused is an extra judicial confession made by accused
 No.1 to the Police Patil- Ramdas Chavan. In his
 evidence the Police Patil stated that when he was at
 his house at about 8.00 or 8.30p.m. accused No.1 came
 to his house. He was in a frightened condition.
 Accused Arjun informed that he had killed Yeshwant
 Bhekare. When he made a further enquiry from accused

¶103

 :-24-:

¶104

 No.1 Arjun, he told him that he and his two sons had
 killed the deceased Yeshwant Bhekare. They then
 proceeded towards the spot at Bhekarewadi Mala. This
 version given by the police patil is completely
 corroborated by his own F.I.R.(Exh.14). In the F.I.R.,
 it is mentioned that at about 8.30p.m. accused
 No.1-Arjun came to the house of police patil in a
 frightened condition and told him that before a short
 time, at about 7.30p.m. he and his sons Santosh and
 Atmaram had killed Yeshwant. That the Police Patil
 asked him as to why they had beaten Yeshwant. Accused
 No.1 told the Police Patil that Yeshwant always used to
 practice witchcraft on them and therefore, illness had
 entered into their house and their daughter-in-law had
 become ill due to such witchcraft and therefore, in
 disgust he had killed Yeshwant in front of the house of
 Parvati. The fact that this extra judicial confession
 was immediately mentioned by Ramdas Chavan in his

¶105

 F.I.R. is also corroborated by P.W.No.8 the police
 officer who affirmed that he recorded the story as
 given by the Police Patil in the F.I.R. (Exh.14). The
 fact that accused No.1 came alongwith Police

¶106

 Patil-P.W.No.2 is also indicative of the fact that the
 accused No.1 had in fact gone to the house of the
 Police Patil. In fact, in his statement under Section

¶107

 :-25-:

¶108

 313 of Criminal Procedure Code, this fact is

¶109

 categorically admitted by accused No..1 Arjun. In
 reply to the question as to whether he was produced at
 the police station by P.W.No.2 Ramdas Chavan and that
 the complaint (Exh.14) was lodged by Ramdas, the
 witness stated that it was true. He also admitted that
 at the police station his chappal pair, his khaki half
 pant and full shirt of blue colour stained with blood
 stains were seized under the panchanama Exh.16. In his
 313 Statement he further admitted that after Laxmi
 waited at the spot for some time, she went to her house
 and Police Patil came over there after sometime. He
 denied the actual confession said to have been made to
 P.W.No.2 Ramdas Chavan but did not specifically, state
 that he had only told Ramdas Chavan that he had found
 Yeshwant dead on the spot.

¶110

 18. It appears to us that the aforesaid evidence
 relating to the extra judicial confession has been
 discarded by the Trial Court on the ground that the
 said confession was hit by Section 25 of the Indian
 Evidence Act. For coming to this conclusion, the Trial
 Court has relied upon the Judgment of the Bombay High
 Court reported in the case Alluri Ramayya Vs. State of
Maharashtra reported in 1987 CRI. L.J.1172. In that

¶111

 :-26-:

¶112

 case the concession was made by an accused in the
 presence of crowd. The Police Patil was also present
 in the crowd. A Division Bench of this court held that
 the said confession was not hit by Section 25 though
 Police Patil was a police officer under the Indian
 Evidence Act. This was so held by the Division Bench
 on this footing that the word "to" occurring in Section
 25 could not be read as "In presence of". On perusal
 of the Judgment it is found that the proposition as to
 whether Police Patil appointed under the Maharashtra
 Village Panchayat Act can be said to be a Police
 Officer within the meaning of Section 25 of the Indian
 Evidence Act, was not in issue as it was not disputed
 before the Division Bench. In our view, in the absence
 of any such dispute the court made a reference to the
 fact that the proposition was not disputed. This by
 itself could not be said to be a conclusive decision on
 the point. In any case, the matter is covered by a
 subsequent Judgment of the Apex Court in the case of
Raj Kumar Karwal Vs. Union of India and ors reported

¶113

in A.I.R.1991 S.C.45. The issue involved is directly
 dealt with by the Apex Court in the following terms.

¶114

 "We therefore, agree that as Section 25 of
 Evidence Act which engrafts a wholesome

¶115

 :-27-:

¶116

 protection it must not be construed in a
 narrow and technical sense but must be
 understood in a broad and popular sense. But
 at the same time it cannot be construed in so
 wide a sense as to include persons on whom
 only some of the powers exercised by the
 police are conferred within the category of
 police officers".

¶117

 "The important attribute of police power is
 not only the power to investigate into the
 commission of cognizable offence but also the
 power to prosecute the offender by filing a
 report or a charge-sheet under Section 173 of
 the Code. That is why this court has since
 the decision in Badku Joti Savant (A.I.R.1966
 S.C. 1746) accepted the ratio that unless an
 officer is invested under any special law with

¶118

 the powers of investigation under the Code,
 including the power to submit a report under
 Section 173, he cannot be described to be a
 Police Officer’ under Section 25 , Evidence
 Act".

¶119

 19. We have gone through the provisions of the Bombay

¶120

 :-28-:

¶121

 Village Panchayat Act as well as Criminal Procedure
 Code. It is clear that the Police Patil of the village
 has no power to file a report under Section 173 of the
 Criminal Procedure Code and therefore, is not a Police
 Officer within the meaning of Section 25 of the
 Evidence Act. A judicial confession made by accused
 No.1 to P.W.No.2 Ramdas Section-2(a) is therefore
 relevant and the said extra judicial confession would
 assume importance. We do not find anything
 unbelievable in the evidence relating to the making of
 such a confession. Nothing has been elicited on the
 record as to why P.W.No.2 Ramdas Chavan would falsely
 involve the accused and his sons. On the contrary in
 his 313 Statement, accused No.1 candidly admitted that
 he cannot state as to why P.W.No.2 Ramdas Chavan was
 deposing against him.

¶122

 20. One other circumstance against the accused is the
 finding of blood stains on the clothes of the accused.
 This is evident from the C.A.’s report. The blood
 group found on the articles of all the accused is blood
 group A. This is also the blood group found on the
 clothes of the deceased. In an obvious attempt to meet
 this glaring circumstance, suggestions were made to the
 eye witnesses stating that they accidently came across

¶123

 :-29-:

¶124

 the injured Yeshwant and they attempted to lift him for
 the purpose of reaching him to his house and that on
 finding that Yeshwant was dead they threw him down.
 This defence story appears to be false. Firstly this
 story is not given by the accused in their Section 313
 Statement. Secondly, if at all the accused were
 innocent then confessional statement would not have
 been made by accused No.1 to P.W.No.2-Police Patil.
 The accused No.1 was present in the police station when
 Exh.14 was recorded and which contained his confession
 to the killing Yeshwant by his two children.

¶125

 21. The Trial Court discarded the evidence relating to
 the discovery of weapons. This evidence was discarded
 on the ground that a collective statement in the form
 of the memorandum had been recorded under Section 27 of
 the Indian Evidence Act. For this purpose, the Trial
 Court placed reliance on the Judgment of the Apex Court
 reported in A.I.R. 1983 S.C. Page 367 ( Mohd. Abdul
Hafeez Vs. State of Andhara Pradesh).

¶126

 22. In the aforesaid case, the Apex Court while
 dealing with the manner in which the recovery statement
 under Section 27 of the Indian Evidence Act is to be
 recorded observed as under :

¶127

 :-30-:

¶128

 "If evidence otherwise confessional in

¶129

 character is admissible under Section 27 it is
 obligatory upon the investigating officer to
 state and record who gave the information;
 when he is dealing with more than one accused,
 what words were used by him so that a recovery
 pursuant to the information received may be
 connected to the person giving the information
 so as to provide incriminating evidence

¶130

 against that person."

¶131

 In the case before the Apex Court, accused No.2 and
 accused No.3 in that case, gave information to the
 Investigating Officer that a ring was sold by them to a
 jeweller. The Jeweller in the case was examined as a
 witness and he deposed that accused Nos. 1 to 4, whom
 he identified in the court came to his shop and sold
 the ring to him. He further stated that later a Police
 Officer and some constables accompanied by accused Nos.
 1 to 3 came to his shop and accused Nos. 1 to 3 asked
 him to produce the said ring which they had sold to
 him. On this request made by accused Nos. 1 to 3, the

¶132

 :-31-:

¶133

 said jeweller took out a ring from show case and placed
 it on the box and the same was attached by the Sub
 Inspector of Police.

¶134

 23. In our view the aforesaid Judgment of the Apex
 Court does not lay down the law to the effect that a
 joint memorandum would make the consequent discovery
 totally inadmissible in evidence in each and every
 case. The said ruling of the Apex Court has to be
 understood in the light of the facts of the case before
 the Apex Court.

¶135

 24. Section 27 of the Indian Evidence Act is in the
 following terms:

¶136

"How much of information received from accused
may be proved.27. Provided that,
when any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody
of a police officer, so much of such
information, whether it amounts to a
confession or not, as relates distinctly to
the fact thereby discovered, may be proved".

¶137

 :-32-:

¶138

 No doubt, it may be possible that in given case two
 accused may make similar statements one after another
 and the police officer may then reduce the same to a
 common memorandum statement signed by both these
 accused. This procedure is obviously undesirable
 because it has the disadvantage of not recording the
 statement of each of the accused in the exact terms as
 may have been stated by them. This would made the
 discovery evidence less reliable and thus evidence of
 lessor probative value though not completely
 inadmissible. In the present case, the evidence
 relating to the discovery indicates that the statements

¶139

 were made by the accused to the police officer one
 after another but a joint memorandum was recorded.

¶140

 Here lies the basic difference between the case in hand
 and the one before the Apex Court in the matter of
 Mohd. Abdul Hafeez. Therein the evidence was that
 "one accused alongwith all others gave information".
 Whereas in the case in hand the statements of accused
 were one after another and not alongwith the other
 accused. Ribs discovered were found having blood
 stains and the Chemical Analyser’s report established
 the blood group found on the clothes in pursuance of

¶141

 :-33-:

¶142

 this memorandum statement had the blood group of the
 deceased thereon. Weak as this circumstance might be
 because of the procedural lapse in the recording of a
 joint memorandum, this circumstance also supports the
 prosecution case and corroborates the evidence of the
 eye witnesses.

¶143

 25. It was lastly contended by the defence that the
 conviction should be under Section 304 Part I or II of
 the Indian Penal Code. We find that there is no
 mitigating circumstance to bring this case in one of
 the said exceptions to Section 300 of the Indian Penal
 Code. The evidence of the doctor indicates that the
 injuries found on the deceased were as follows :

¶144

 1. Contusion with laceration on left leg

¶145

 lateral aspect middle third 2"x1/2"x1/2".

¶146

 2. Contusion with laceration on left leg 1"

¶147

 above wound No.1 on lateral aspect
 1"x1/2"x1/2".

¶148

 3. Contusion and laceration on right leg
 middle third lateral aspect 2"x1"x1".

¶149

 :-34-:

¶150

 4. Contusion and laceration on right leg 1"

¶151

 below injury No.3 on lateral aspect
 2"x1/"x1/2".

¶152

 5. Contusion on right leg 1" below of
 laceration of wound No.4 on lateral

¶153

 aspect 1"x2"x1/2".".

¶154

 6. Contusion with laceration on left

¶155

 forearm about 1" above palm 2"x1/2"x1/2".

¶156

 7. Contusion with laceration over lower jaw
 mandible 2"x1"x1".

¶157

 8. Contusion with laceration on face, Erin,
 compound fracture mandible lower jaw 1"x1"x1".

¶158

 9. Contusion with laceration face right

¶159

 mandible lower jaw compound fracture 2"x1"x1".

¶160

 10. Contusion with laceration on face left

¶161

 side 1" lateral to left eye 2"x1/2"x1/2".

¶162

 11. Contusion with laceration on scalp 1cm.

¶163

 :-35-:

¶164

 behind left ear truneverag 2"x1/2"x1/2".

¶165

 12. Contusion with laceration on over scalp
 temporal area above left ear transverse
 3"x1/2"x1/2".

¶166

 13. Contusion with laceration on scalp,
 occipital vertical 1" below left partial
 eminence 2"x1/2"x1/2".

¶167

 14. Contusion on face, bridge none 1/2"x1/2".

¶168

 He found that all the injuries were antemortem and
 caused by a hard and blunt object. Doctor further
 opined that there was an internal haematoma below the
 left temporal area and brain matter found congested.
 He opined that the death might have been caused due to
 shock, due to severe haemorrhage and due to multiple
 fracture of the mandible. He further opined that
 Injury Nos. 7,8,9 and 14 were sufficient in the
 ordinary course to cause death. Apart from the
 doctor’s evidence, a bare look on the nature of the
 injuries indicates the lethal intention of the
 assailants. We have seen the wooden ribs. They are

¶169

 :-36-:

¶170

 deadly weapons with which very severe injuries can be
 caused and they are clearly in the nature of dangerous
 weapons. Since, there is no mitigating factor to bring
 the accused under Section 304 of the Indian Penal Code,
 we find that the appeal of the State will have to be
 allowed in so far as the charge under Section 302 read
 with 34 of the I.P.C. is concerned. In so far as
 other charges pertaining to Sections-504 and 506 read
 with 34 of the Indian Penal Code are concerned, the
 evidence is vague. There is no uniformity about the
 nature of the abuses given. It also appears that there
 were no threats of causing grievous injury to the
 witnesses or to kill them. We find only a case made
 out for a conviction under Section 302 of the Indian
 Penal Code. The net result is that the appeal is
 partly allowed. The acquittal of the accused for the
 offences charged is set aside. The accused are
 convicted for an offence under Section 302 read with 34
 of the I.P.C. The acquittal in respect of the charges
 under Sections- 504 and 506 is however, confirmed.

¶171

 26. As regards the sentence, in our view this is not a
 case which falls within the ambit of a rarest of rare
 case which would call for a death sentence. We have
 questioned the accused on the point of sentence. The

¶172

 :-37-:

¶173

 accused have nothing to say regarding the sentence.

¶174

 27. In the circumstances, the accused are convicted
 under Section 302 read with 34 of the Indian Penal Code
 and are sentenced to suffer R.I. for life. Their bail
 bonds stand cancelled. They are directed to surrender

¶175

 forthwith. They will be entitled to the set off of any
 period of imprisonment already undergone in this case.

¶176

(R.M.S.KHANDEPARKAR, J.)

¶177

(R.S. MOHITE, J.)

¶178

 :-38-:

¶179

FARAD CONTINUATION SHEET NO
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO. 40 OF 1993
 The State of Maharashtra. ....Appellant.
 Vs.
 Arjun Dattaram Bhekare and ors. ....Respondents.
----------------------------------------------------------------------
Office notes, office Memoranda Court’s or Judge’s orders
of Coram, appearance, Court’s
orders or directions and
Registrar’s orders.

¶180

----------------------------------------------------------------------
 Ms. P.H. Kantharia, A.P.P. for the
 Appellant-State.
 Mr. Prakash Naik, Advocate for the
 Respondents.
 ..........
 CORAM : R.M.S. KHANDEPARKAR &
 R.S. MOHITE, JJ.
 DATED : 6TH AUGUST,2004.
 .........
 ORAL JUDGEMENT:(Per R.S. Mohite,J.)
 OPERATIVE ORDER
 1. Appeal is partly allowed and
 the Judgment and sentence passed by
 the learned Sessions Judge,

¶181

 :-39-:

¶182

 Ratnagiri on 6.11.1992 in Sessions
 Case No.48 of 1992 is partly set
 aside.

¶183

 2. All the accused are convicted

¶184

 for committing the offence
 punishable under Section 302 read
 with 34 of the Indian Penal Code
 and sentenced to undergo R.I. for
 life.

¶185

 . The acquittal of the accused for
 the offences punishable under
 Section 504 read with 34 and 506 of
 the Indian Penal Code by the
 Sessions Judge, Ratnagiri is
 however, confirmed.

¶186

 3. The bail bonds of the accused
 to stand cancelled. They are

¶187

 :-40-:

¶188

 directed to surrender forthwith.

¶189

 (R.M.S. KHANDEPARKAR, J. )

¶190

 (R. S. MOHITE, J. )

State v. a.D.Bhekare and Ors. v Arjun D.Bhekare and Ors.

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State v. a.D.Bhekare and Ors. v Arjun D.Bhekare and Ors.

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