Dismissed

State v. Narayan Nathu Patil and 20 Ors. v Narayan Nathu Patil and 20 Ors.

Bombay HC26 Aug 2014APEAL/372/1991

Case brief

AI extract

What is this about?

In an appeal against acquittal for offenses including rioting and causing death, the High Court relied on the two-or-more witnesses test from Masalti. Finding discrepancies between eye witness statements and medical evidence regarding weapons and injuries, plus doubts about witness reliability, the Court upheld the acquittal of remaining accused.

What did the court decide?

Disallowance of the appeal; acquittal of the remaining accused is upheld.

State vs. Narayan Nathu Patil and 20 Ors. Vs… — Murder and Culpable Homicide | Bombay HC (2014)

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jdk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 372 OF 1991

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The State of Maharashtra ] (At the instance of Lahu Rama ] Mhatre resident of Karawala Wadi ] Taluka Panvel, Dist. Raigad ]..Appellant [Ori.Complainant ]

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Vs.

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Narayan Nathu Patil, Age 50 . ]

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Bharat @ Bablya Barku Patil,Age 22]

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Hari Barku Patil Age 20 ]

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Vasudeo Barku Patil, Age 25 ] 5. Pandurang Barku Patil, Age 18 ] 6. Somnath Nana Madhavi Age 18 ] 7. Bharat Ziparu Madhavi Age 20 ] 8. Prabhakar Shantaram Madhavi, 18 ] 9. Madhukar Pundalik Patil, Age 25 ] 10.Mahadu Nathu Patil, Age 60 ] 11.Namdeo Mahadu Patil, Age 26 ] 12.Kaluram Pundalik Patil, Age 20 ] 13.Namdeo Tukaram Madhavi,Age 55 ] 14.Vaman Sakharam Madhavi,Age 35] 15.Kesarinath Dhondu Madhavi,Age18] 16.Barku Nathu Patil, Age 62 ] 17.Natha Mahadu Patil, Age 25 ] 18.Jagannath Ladku Madhavi,Age 20 ]

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19.Balaram Barku Patil, Age 19 ] 20.Sawalaram Mahadu Patil,Age 22 ] 21.Walku Nathu Patil, Age 35 ] All residents of Sidhikarwale, ] Taluka Panvel, Dist. Raigad ]..Respondents [Ori. Accused]

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Smt. V.R. Bhonsale, A.P.P. for the Appellant-State

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Shri. Sachin B. Shetye, Shri. M.R. Bohra and Ms. Shriya S. Jadhav for Respondents Appeal is abated against respondent nos. 3, 7, 10, 13, 16 and 21

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CORAM : SMT. V.K. TAHILRAMANI AND SHRI. A.R. JOSHI, JJ.

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DATED : AUGUST 25 & 26, 2014

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ORAL JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.]

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The appellant-State of Maharashtra has preferred this appeal against the judgment and order dated 28.3.1991 passed by the learned IInd Additional Sessions Judge, RaigadAlibag in Sessions Case No. 136 of 1988. By the said judgment and order, the learned Sessions Judge acquitted the respondents-original accused nos. 1 to 21 of the offence under Sections 147, 148, 149, 323, 326, 302 and 504 of IPC.

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Hereinafter for the sake of convenience, the respondents will be referred to as they were referred before the trial Court. Out of the 21 accused, accused nos. 3, 7, 10, 13, 16 and 21 have expired during the pendency of this appeal, hence, this appeal is being heard only in respect of remaining accused i.e. accused nos. 1, 2, 4, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 19 and 20.

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The prosecution case briefly stated, is as under:

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(i) PW-1 Lahu is the complainant in the present case. He was nephew of Krishna and Shama who are the deceased in the present case. Lahu and the other eye witnesses are residents of Karavale Pada. All the accused are residents of Karavale. The distance between Karavale Pada and Karavale was about 2 kms. There are about 5 houses in Karavale Pada and the population is 50, whereas in Karavale village, there are 150 houses and population is 1000.

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(ii) On 23.2.1988 there was marriage of the son of Joma Patil at Karavale, hence, Banjo party headed by PW-2 Hari went to play Banjo at the said wedding. There were in all six

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members in the Banjo party. Accused no.3 Hari (since deceased) and accused no.16 Barku (since deceased) said that they should play Banjo loudly or go away. The persons from the Banjo party replied that they would play according to their capacity. Accused no.3 Hari (since deceased) again threatened that if Banjo was not played properly, they should go away. Due to fear, boys in the Banjo party returned to their houses leaving the Banjo playing half way.

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(iii) The incident occurred on the next day i.e. on 24.2.1988 at about 5 p.m. According to the prosecution, all the 21 accused armed with axes and sticks in their hands, were abusing. Hence, Shama, Krishna, PW-2 Hari, PW-3 Dagadu and PW-6 Kanha went to convince the accused to avoid further quarrel. As Shama reached near the accused persons, accused no.3 Hari (since deceased) and accused no.4 Vasudeo assaulted Shama with axe. Krishna and PW-6 Kanha were given blows by axe by accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased). Then PW-2 Hari was given blows by axe by accused no.9 Madhukar and accused no.10 Mahadu (since deceased).

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Accused no.10 Mahadu (since deceased) also gave a blow with axe to PW-3 Dagadu. Lahu also received a blow of axe from accused no. 4 Vasudeo. Accused no.3 Hari (since deceased) gave blow with axe on Shama and Krishna as well as PW-6 Kanha and accused no.13 Namdeo (since deceased) gave blow with axe to Krishna. PW-1 Lahu lodged F.I.R. Thereafter investigation commenced. Shama was declared dead on admission and Krishna died on 28.2.1988 in Sion Hospital. Post-mortem notes show that Shama had sustained six contusions, two contused lacerated wounds (CLWs) on the leg, one abrasion on the arm and two incised wounds on the parietal region. The cause of death was “respiratory failure Secondary to cerebral Hemorrhage due to head injury with compound fracture of skull”. As far as Krishna is concerned, subdural hemorrhage was found in the left middle cranial fossa which was 4” long with fracture and the cause of death was “Traumatic fracture to the skull with intracranial hemorrhages.” According to the prosecution, PW Nos. 1 to 7 are the eye witnesses. Their statements were recorded. They were sent for medical examination. Their medical certificates are on record. During the course of investigation, axes were

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recovered at the instance of accused nos. 1, 3, 4 and 13 and sticks were recovered at the instance of accused nos. 2, 5, 6, 8, 11, 12, 16, 17, 18 and 19. A blood stained banyan was also recovered at the instance of accused no. 16. After completion of investigation, charge-sheet came to be filed. In due course, the case was committed to the Court of Sessions.

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We have heard the learned A.P.P. for the State and the learned counsel for the respondents-original accused. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record for the below mentioned reasons, we are of the opinion that the view of acquittal taken by the learned Sessions Judge is a reasonable and possible view and that no interference is called for.

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We have already stated above that original accused nos, 3, 7, 10, 13, 16 and 21 expired during the pendency of this appeal, and the appeal stands abated against them and hence, this case is being considered only in respect of the

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remaining accused i.e. accused nos. 1, 2, 4, 5, 6, 8, 9, 11, 12, 14, 15, 17, 18, 19 and 20.

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As far as accused nos. 6, 15 and 17 are concerned, no witness has stated that they played any role in the incident. Except their presence nothing more is attributed to them. There is no evidence to show that they shared the common object of the other accused, hence, in our opinion, they have been rightly acquitted by the learned Sessions Judge. Thus, we would have to scrutinize the case only in relation to accused nos. 1, 2, 4, 5, 8, 9, 11, 12, 14, 18, 19 and 20.

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26.8.2014

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In the present case, 21 accused are involved and a large number of witnesses are involved. It is a case of rioting. In case of rioting guidelines have been laid down by the Supreme Court in the case of Masalti Vs. State of Uttar Pradesh reported in AIR 1965 S.C. 202, which is a decision by four Judges of the Hon'ble Supreme Court. In the said case, the Supreme Court has observed as under:

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“It is true that under the Evidence Act, trustworthy

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evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a larger number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident in a sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable.”

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Thus, it is seen that where a large number of offenders and a large number of victims are involved, the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident. We find this mechanical test is satisfied only in the case of accused nos. 1, 4, 5, 12 and 19.

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As far as accused no.2 Bharat is concerned, only two witnesses have implicated him i.e. PW-4 Chandrakant and PW7 Sitaram. PW-4 Chandrakant has stated that accused no.2

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Bharat alias Bablya gave axe blow on his head and further blows on the back. However, PW-7 Sitaram does not state about any assault by accused no.2 Bharat on PW-4 Chandrakant, instead he states that accused no.2 Bharat assaulted him with stick. Though it is the categorical case of Chandrakant that axe blows were given by accused no.2 Bharat on his head and back, his medical certificate (Exh.119) shows that the injuries which were sustained by him, were simple in nature and were caused by hard and blunt weapon. Thus, the evidence of PW-4 Chandrakant is not consistent with the medical evidence. Moreover, it is seen that both these witnesses did not give a consistent account of the incident. Thus, as far as accused no.2 Bharat is concerned, we would have to give him the benefit of doubt.

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As far as accused no.8 Prabhakar is concerned, only one witness i.e. PW-2 Hari has implicated him. Hari has attributed to accused no.8 Prabhakar role of assault with stick. In this view of the matter, the accused no.8 Prabhakar would have also to be given benefit of doubt in view of the aforesaid

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decision in the case of Masalti (supra) .

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Coming to the case of accused no.9 Madhukar, we find that only two witnesses have implicated him i.e. PW-2 Hari and PW-7 Sitaram. Hari has stated that accused no.9 Madhukar gave an axe blow to him as well as deceased Krishna, however, no such role is attributed by PW-7 Sitaram to accused no.9 Madhukar. Hari has stated that accused no.9 Madhukar was holding an axe whereas PW-7 Sitaram states that accused no.9 Madhukar was armed with stick. Moreover, it is seen that it is the categorical case of Hari that accused no.9 Madhukar gave him blow with an axe, however, his medical certificate (Exh.122) shows that the injuries sustained by Hari were caused by hard and blunt weapon which is not consistent with the assault with axe by accused no.9 Madhukar.

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Only one witness i.e. PW-7 Sitaram has implicated accused no.11 Namdeo. Sitaram has stated that accused no.11 Namdeo assaulted him with a stick. No other witness has attributed any such role to accused no.11 Namdeo. In fact, no other witness has attributed any role of assault to accused

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no.11 Namdeo. Similar is the case with accused no.14 Vaman and accused no.18 Jagannath. Only PW-3 Dagadu has implicated both these witnesses and attributed role of assault with sticks. Thus, these are only five accused persons i.e. accused nos.1, 4, 5, 12 and 19 who are implicated by more than two witnesses.

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As far as accused no.1 Narayan is concerned, PW-1 Lahu, PW-2 Hari, PW-3 Dagadu, PW-4 Chandrakant, PW-6 Kanha and PW-7 Sitaram have implicated him. As far as accused no.4 Vasudeo is concerned, P.W. Nos. 1 to 7 have implicated him. Accused no. 5 Pandurang, accused no. 12 Kaluram and accused no. 19 Balaram have been implicated by PW-3 Dagadu, PW-4 Chandrakant and PW-7 Sitaram.

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It is pertinent to note that a cross case has been filed against the witnesses in the present case. It has been admitted by all the injured witnesses that a cross case has been filed in which some of them were accused. In such case we would have to scrutinize the evidence of the so called eye witnesses with great care and caution because in such cases

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there is always a tendency to exaggerate and to falsely implicate members of the other side. PW-6 Kanha has admitted that it is true that a criminal case is pending against him in the Court for having assaulted accused no. 3 Hari (since deceased), accused no. 16 Barku (since deceased), accused no. 19 Balaram and accused no. 20 Sawalaram. PW-7 Sitaram has admitted that there is a case pending against him and others for having assaulted accused no. 3 Hari (since deceased) and accused no. 16 Barku (since deceased). As stated earlier, other witnesses have also admitted that a cross case was filed. Thus, it appears that there was a free fight. This incident took place on 24.2.1988 on account of an incident which occurred on the earlier day i.e. on 23.2.1988. On that day, the witnesses in the present case, who were part of Banjo party, were invited to play Banjo at the marriage of Joma Patil's son. Original accused no. 3 Hari (since deceased) and original accused no.16 Barku (since deceased) told them that they should play Banjo loudly or go away. The Banjo players replied that they would play according to their capacity. Original accused nos.3 Hari (since deceased) then threatened them and due to fear, the boys in the Banjo party returned to

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their houses leaving the playing of Banjo half way. In such case, it is seen that in fact, the witnesses in this case would have a grudge against the accused persons as they were told that if they did not play Banjo properly, they should go away and thereafter, they were threatened by the witnesses in the present case and due to fear, they left playing Banjo half way and went home. It also appears from the evidence in the present case that there was a clash between the two parties and thereafter the accused persons appear to have exercised their right of private defence.

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In the light of the above, we shall now proceed to examine whether eye witnesses i.e. PW Nos. 1 to 7 can be relied upon.

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PW-1 Lahu has stated that on 23.2.1988 there was marriage of the son of Joma Patil at Karavale, hence, Banjo party headed by PW-2 Hari was playing Banjo at the said wedding. There were in all six members in the Banjo party. Accused no.3 Hari (since deceased) and accused no.16 Barku (since deceased) said that they should play Banjo loudly or go

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away. The persons from the Banjo party replied that they would play according to their capacity. Accused no.3 Hari (since deceased) again threatened that if Banjo was not played properly, they should go away. Due to fear, boys in the Banjo party returned to their houses leaving playing of Banjo half way. The incident occurred the next day i.e. on 24.2.1988 at about 5 p.m. According to Lahu, all the 21 accused armed with axes and sticks in their hands, were abusing. Hence, Shama, Krishna, PW-2 Hari, PW-3 Dagadu and PW-6 Kanha went to convince the accused to avoid further quarrel. As Shama reached near the accused persons, accused no.3 Hari (since deceased) and accused no.4 Vasudeo assaulted Shama with axe. Krishna and PW-6 Kanha were given blows with axe by accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased). Then PW-2 Hari was given blows with axe by accused no.9 Madhukar and accused no.10 Mahadu. Accused no.10 Mahadu gave a blow with an axe to PW-3 Dagadu. Lahu also received a blow with axe from accused no. 4 Vasudeo. Accused no.3 Hari (since deceased) gave blow of axe on Shama and Krishna as well as PW-6 Kanha and accused no.10 Mahadu (since deceased)

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gave blow with axe to PW-3 Dagadu and accused no.13 Namdeo (since deceased) gave blow with an axe to Krishna.

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PW-1 Lahu has stated that Shama was assaulted with an axe by original accused no.3 Hari (since deceased) and accused no.4 Vasudeo. Krishna and PW-6 Kanha were assaulted by axe by accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased). Thus it is the categorical case of PW-1 Lahu that PW-6 Kanha was given blows with axe by accused No. 1, accused No. 13 and accused No. 4 Vasudeo but Exh. 125 the Medical Certificate of PW-6 Kanha shows that he had sustained only two injuries which were simple in nature and they were caused by hard and blunt object. Thus, the medical evidence in relation to PW-6 Kanha is not consistent with the version of PW-1 Lahu. Lahu has further stated that accused no.9 Madhukar assaulted PW-2 Hari and accused no.10 Mahadu assaulted PW-2 Hari as well as PW-3 Dagadu. As Lahu went to intervene, accused no.4 Vasudeo gave an axe blow to him on the back part of his head. It is pertinent to note that this witness has stated that accused no.4 Vasudeo gave an axe blow to him on the head. On

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perusal of the medical certificate of PW-1 Lahu which is at Exh. 129, we find that he had sustained only two injuries which were simple in nature and these injuries were caused by hard and blunt weapon and axe would not fall into the category of hard and blunt weapon and it is not a weapon which could cause simple injuries of the kind sustained by PW-1 Lahu. Looking to the discrepancy between the evidence of PW-1 Lahu and the medical evidence, we do not find it safe to rely on his evidence. Another reason we are not inclined to rely upon the evidence of Lahu is that the evidence of PW-3 Dagadu shows that after Shama, Krishna, PW-3 Dagadu and PW-6 Kanha were assaulted, then PW-1 Lahu came to the spot. This shows that Lahu has not witnessed the incident from the beginning as claimed by him.

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According to PW-2 Hari, accused no.3 Hari (since deceased), accused no.4 Vasudeo and accused no.16 Barku (since deceased) assaulted Shama with an axe. Krishna and PW-6 Kanha were given blows with axe by accused no.13 Namdeo (since deceased) and accused no.4 Vasudeo. Thus it is the categorical case of PW-2 Hari that PW-6 Kanha was given

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blows with axe by accused No. 13 and accused No. 4 Vasudeo but Exh. 125 the Medical Certificate of PW-6 Kanha shows that he had sustained only two injuries which were simple in nature and they were caused by hard and blunt object. Thus, the medical evidence in relation to PW-6 Kanha raises doubt about the credibility of this witness as it is not consistent with the version of PW-2 Hari. PW-2 Hari has further stated that he was given blows with axe by accused no.9 Madhukar and accused no.10 Mahadu and accused no. 8 Prabhakar and accused no.20 Sawalaram assaulted him with sticks. Moreover, PW-2 Hari has stated that axe blows were received by him on his head and mouth and stick blows were received by him on his back. Thus, according to PW-2 Hari, he was himself assaulted by accused no.9 Madhukar and accused no.10 Mahadu (since deceased) with an axe. As far as this averment is concerned, it is seen that PW-2 Hari has sustained injuries by hard and blunt object which is not consistent with assault by axe. His medical certificate (Exh.122) shows that the injuries were caused to him by hard and blunt object. Injuries as reflected in the injury certificate (Exh. 122) are not consistent with assault by axe. We find that all these facts raise doubt about the credibility of

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PW-2 Hari.

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PW-3 Dagadu has stated that accused no.3 Hari (since deceased) gave blows with axe to deceased Shama. Accused no.4 Vasudeo, accused no.16 Barku (since deceased) also gave blows with an axe to Shama. According to PW-3 Dagadu, accused no.5 Pandurang and accused no. 12 Kaluram gave blows with stick to Shama. Accused no. 1 Narayan, accused no. 4 Vasudeo, and accused no. 13 Namdeo (since deceased) assaulted Krishna with axe. Accused no.19 Balaram assaulted Krishna with stick. PW-6 Kanha was assaulted by accused no.1 Narayan, accused no.4 Vasudeo, accused no.13 Namdeo (since deceased) and accused no.19 Balaram. PW-3 Dagadu has stated that then accused no.10 Mahadu came forward and gave him an axe blow on his head. Accused no.14 Vaman assaulted him with stick on the shoulder and accused no.19 Balaram assaulted him on his left palm and leg. PW-3 Dagadu has stated that accused no.14 Vaman gave stick blow on the shoulder, due to which, there was a fracture and due to injury on the left palm, there was swelling on his left

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hand near the index finger. On going through the medical certificate of PW-3 Dagadu, we find that there is no fracture mentioned in the medical certificate nor is there any injury or any swelling found on the index finger which leads to a serious doubt about the truthfulness of the evidence of this witness, hence, we are not inclined to rely upon his evidence.

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PW-4 Chandrakant has stated that accused no.3 Hari (since deceased) and accused no.4 Vasudeo assaulted Shama with an axe. Accused no.5 Pandurang and accused no.12 Kaluram assaulted Shama with sticks. Krishna was assaulted by accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased) with axe. Accused no.19 Balaram assaulted Krishna with stick. PW-6 Kanha was assaulted by accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased) with axe and accused no.19 Balaram assaulted Kanha with stick. Thus it is the categorical case of PW-4 Chandrakant that PW-6 Kanha was given blows with axe by accused Nos.1, 13 and accused No. 4 Vasudeo but Exh. 125 the Medical Certificate of PW-6 Kanha shows that he had sustained only two injuries which were

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simple in nature and they were caused by hard and blunt object. Thus, the medical evidence in relation to PW-6 Kanha raises doubt about the credibility of this witness as it is not consistent with the version of PW-4 Chandrakant. PW-4 Chandrakant has specifically stated that accused no.2 Bharat Patil gave blow with an axe on his head. Then accused no.7 Bharat Madhavi (since deceased) assaulted him with stick on his head and legs. On perusal of medical certificate (Exh. 119) of PW-4 Chandrakant, we find that he had sustained injuries which were all simple in nature and they were caused by hard and blunt object. Chandrakant has stated that accused no.2 Bharat Patil had given a blow with an axe on his head. Medical certificate on the other hand, shows no injury which is consistent with assault by axe. This raises doubt about the veracity of the evidence of PW-4 Chandrakant. Another reason we find that the evidence of PW-4 Chandrakant to be doubtful is that he has stated that when he reached the spot, Krishna and Shama were already lying down. This shows that he had not witnessed the assault on Krishna and Shama, hence, his evidence that he witnessed the assault on Krishna and Shama, cannot be relied upon.

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PW-5 Anant has stated that the accused persons started assaulting his father Shama. They also assaulted PW-3 Dagadu, Krishna, PW-2 Hari and PW-6 Kanha. According to him, accused no.3 Hari (since deceased), accused no.4 Vasudeo and accused no.16 Barku (since deceased) gave axe blows to his father Shama. Anant has stated that when he went to intervene, accused no.21 Walku (since deceased) gave stick blows on his hand and head. After deposing about the assault on Shama, Krishna, PW-3 Dagadu and PW-6 Kanha, this witness has stated that PW-1 Lahu shouted that their people were being assaulted and they should be rescued. Hearing these shouts, PW-5 Anant and others went to the spot. The evidence of PW-3 Dagadu shows that after Shama, Krishna, PW-3 Dagadu and PW-6 Kanha were assaulted, then PW-1 Lahu came to the spot. PW-5 Anant has stated that after Lahu shouted, he and others started from their Pada. Lahu had gone ahead and they were following. Thus, this shows that PW-5 Anant reached the spot much after Lahu reached the spot and the evidence of PW-3 Dagadu shows that Lahu came to the spot a little later in time. In such case, PW-5 Anant would

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obviously have reached the spot much after Lahu, hence, it was not possible for him to witness the incident.

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PW-6 Kanha has stated that accused no.3 Hari (since deceased), accused no.16 Barku (since deceased) and accused no.4 Vasudeo assaulted Shama with axe. Accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased) assaulted Krishna with axe. PW-6 Kanha stated that he was assaulted by accused no.4 Vasudeo with axe on his head, hand and nose. Injury was also caused to his left hand by accused no.1 Narayan. The medical certificate (Exh.125) of Kanha shows that he had sustained only two injuries which were simple in nature. According to him, he was assaulted with axe by accused no.4 Vasudeo on his head, hand and nose. However, no injury is found on the nose and on the hand which is clear from the medical certificate (Exh.125). The injury on the head was simple in nature and caused by hard and blunt weapon which is not consistent with the assault by axe. In view of this discrepancy, we do not find the evidence of PW-6 Kanha to be trustworthy and believable.

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The last eye witness is PW-7 Sitaram. Sitaram has stated that accused no.3 Hari (since deceased), accused no.4 Vasudeo, accused no.16 Barku (since deceased) assaulted his brother Shama with axe. Accused no.5 Pandurang and accused no.12 Kaluram assaulted Shama with sticks. Accused no.1 Narayan, accused no.4 Vasudeo and accused no.13 Namdeo (since deceased) assaulted Krishna and PW-6 Kanha with axe. PW-7 Sitaram has further stated that accused no.19 Balaram assaulted Krishna with stick. PW-7 Sitaram has stated that accused no.2 Bharat and accused no.9 Madhukar assaulted him with axe and accused no.11 Namdeo, accused no.18 Jagannath and accused no.12 Kaluram assaulted him with sticks. According to PW-7 Sitaram, PW-6 Kanha was assaulted by accused no. 1 Narayan, accused no. 4 Vasudeo and accused no. 13 Namdeo (since deceased) with axe, however, the medical certificate of Kanha shows that Kanha had sustained simple injuries and these injuries were caused by hard and blunt weapon. Thus, the evidence of PW-7 Sitaram in relation to assault on Kanha is not consistent with the medical evidence. Moreover, it is the case of PW-7 Sitaram that he was assaulted with axe by accused no.2 Bharat

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and accused no.9 Madhukar. Perusal of Exh. 123 which is the injury certificate of Sitaram shows that injuries are not consistent with assault by axe and they were consistent with assault by hard and blunt object. According to PW-7 Sitaram, he received injuries on his forehead, both his hands, back, shoulders and legs. However, medical certificate does not show any injuries on his back and shoulders. Thus, looking to the evidence of PW-7 Sitaram and the discrepancy between his evidence and the medical evidence, we do not find it safe to rely upon the evidence of this witness.

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Besides the evidence of PW Nos. 1 to 7, only other evidence against the accused is the recovery of axes and sticks at their instance. According to the prosecution, axes were recovered at the instance of accused no.1 Narayan, accused no.3 Hari (since deceased), accused no.4 Vasudeo and accused no. 13 Namdeo (since deceased). According to the prosecution, sticks were recovered at the instance of accused no.2 Bharat, accused no.5 Pandurang, accused no.6 Somnath, accused no.8 Prabhakar, accused no.11 Namdeo, accused no.12 Kaluram, accused no.16 Barku (since deceased), accused

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no.18 Jagannath and accused no.18 Balaram. In addition to this, there is recovery of banyan at the instance of accused no.16 Barku (since deceased).

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As far as all these recoveries are concerned, it is pertinent to note that only one panch witness i.e. PW-11 Bhagwan has deposed regarding all these recovery panchnamas. There are 14 recovery panchnamas and the very same Pancha has been used in all the recovery panchanamas. The recovery at the instance of accused no.1 Narayan, accused no. 3 Hari (since deceased), accused no. 4 Vasudeo, accused no. 5 Pandurang and accused no. 13 Namdeo (since deceased) took place on 13.3.1988. The recovery panchnamas in relations to accused no.2 Bharat, accused no.8 Prabhakar, accused no. 11 Namdeo and accused no.12 Kaluram took place on 14.3.1988. Recovery panchnama of banyan in relation to accused no. 16 Barku (since deceased) took place on 15.3.1988. Recovery panchnamas relating to weapons from accused no. 18 Jagannath and accused no. 19 Balaram took place on 20.3.1988 and recovery of stick at the instance of the accused no. 6 Somnath took place on 24.3.1988. Thus, it is seen that recoveries have not taken place on one day but they

¶109

¶110

11.cri.apeal.372.91.sxw

¶111

had taken place on five different days spanning a period of almost 10 days and only one Pancha has been used in relation to all these recoveries. The fact that same Pancha was used in all 14 panchnamas which were spread over a period of ten days, raises doubt whether the panch witness was an independent witness. The fact that same Pancha was used in all 14 panchnamas which took place over a period of 10 days shows that he was a habitual Pancha and under the thumb of police. In such case, we are not inclined to rely on the evidence relating to recovery of weapons and banyan at the instance of the accused mentioned above.

¶112

The learned Sessions Judge has taken into consideration all the above aspects as well as other aspects of this case and thereafter, he has acquitted respondentsaccused. Looking to the evidence on record, we are of the opinion that the view of acquittal taken by the learned Sessions Judge is a reasonable and possible view. Thus, we find no reason to interfere. Appeal is dismissed.

¶113

[SHRI. A.R. JOSHI, J. ] [ SMT. V.K. TAHILRAMANI, J.]

¶114

kandarkar

¶115

State v. Narayan Nathu Patil and 20 Ors. v Narayan Nathu Patil and 20 Ors.

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State v. Narayan Nathu Patil and 20 Ors. v Narayan Nathu Patil and 20 Ors.

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