Full Judgment Text
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CASE NO.:
Appeal (crl.) 626 of 2002
PETITIONER:
Maruti Rama Naik
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 09/09/2003
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
(With Crl.A.No.625 of 2002)
SANTOSH HEGDE,J.
Fifteen accused persons including the two appellants
herein who were arrayed as A-11 and A-15, were charged for
offences punishable under Sections 147, 148, 302 read with
149, 307 read with 149, 325 read with 149 and 337 read with
149 IPC before the Additional Sessions Judge, Raigad at Alibag
in Sessions Case No.128/1994. Since only two appellants are
before us, it may not be necessary for us to refer to the facts
pertaining to the other accused persons in this case.
As stated above, said appellants were A-11 and A-15
before the trial court. These two accused persons along with
some other accused persons were convicted firstly for an
offence punishable under Section 302 read with Section 149
IPC for having committed the murder of one Krishna Mahada
Naik and were sentenced to undergo imprisonment for life, and
to pay a fine of Rs.2,000/-. They were also convicted under
Section 307 read with Section 149 IPC and sentenced to suffer
7 years’ RI and to pay a fine of Rs.2,000/- for having attempted
to commit the murder of one Dharma Jana Naik, PW-3. The
learned Sessions Judge also convicted these accused persons for
other lesser offences, details of which are not necessary for
disposal of these appeals. In an appeal filed before the High
Court of Judicature at Bombay by the convicted accused
persons which also included the two appellants herein, the
conviction and sentence of these appellants under Section 302
read with section 149 IPC for having caused the death of said
Krishna Mahada Naik was confirmed. They were also
convicted for offences punishable under Sections 147 and 148
IPC and were sentenced to undergo one year RI and to pay a
fine of Rs.1,000/- each. Appellant Maruti Rama Naik was also
convicted under Section 325 IPC for having caused injuries to
PW-3 and was sentenced to undergo 3 years’ RI and to pay a
fine of Rs.2,000/-. However, these appellants were not found
guilty for having caused the death of the other deceased â\200\223
Krishna Nama Bhoir. It is against the said judgment and
conviction these two appellants have preferred the above
appeals. Brief facts necessary for the disposal of these appeals
are as follows :
All the accused persons, including these appellants,
deceased and the prosecution witnesses were residents of a
village by name Koli in Panvel taluk of Raigad district. There
were two groups in the said village and the said groups were at
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loggerheads because of certain Government contracts acquired
by one group or the other. It is in the background of these
disputes, the prosecution alleges that on 22.3.1999 on the
outskirts of the said village, the accused persons who were 15
in numbers, attacked Krishna Mahada Naik, one of the
deceased, between 7.30 and 8 a.m. with deadly weapons like
swords, knives, sickles etc. due to which attack the said
deceased was seriously injured. According to the prosecution,
this incident was witnessed by PW-3 who was then travelling
on his scooter along with a pillion-rider, namely, Narayan Ganu
Naik (not examined). The prosecution also alleges that Dhanraj
Ambu Bhoir, PW-4, also noticed the said incident. The further
case of the prosecution is that the accused persons after
assaulting said Krishna Mahada Naik chased PW-3 who by then
had turned his scooter and drove the same towards the village
and took refuge in the house of one Suresh Kana Naik. The
accused persons allegedly entered the house of said Suresh
Naik and dragged PW-3 out of the house and started beating
him with swords, knives, sickles etc. and due to which PW-3
suffered injuries. The prosecution alleges that after the attack on
PW-3, the accused went to the house of one Gangaram Naik,
broke open the door of his house and attacked one Krishna
Nama Bhoir who happened to be in that house (who later died)
and then attacked Pandharinath Ram Bhoir, PW-5 and Bharat
Krishna Naik, PW-6 who were also injured because of the said
attack. It is the prosecution case that one Meena Mohan Naik,
PW-2, went to the city Police Station and narrated the incident
to Police Sub-Inspector Sopan Kadu Choudhary, PW-21 who
after recording the facts in the station diary proceeded to the
scene of occurrence and shifted all the injured persons to the
Municipal Dispensary, Panvel. The prosecution alleges that
Krishna Nama Bhoir made a dying declaration before the
Special Executive Magistrate, PW-13 at Panvel. It is the further
case of the prosecution that PW-2 again went to the city Police
Station, Panvel and gave a written complaint to the Sub-
Inspector, and it is based on the said complaint, a crime was
registered against all the accused persons and further
investigation was undertaken by PW-21. Out of the injured
persons, Krishna Mahada Naik and Krishna Nama Bhoir died
while being treated in the hospital. PW-3 who was one of the
injured persons was first taken to Bombay for treatment and
thereafter brought back to Panvel where his statement was
recorded on the day following the incident on 23.3.1993 at
about 10 a.m. The prosecution also alleges that in the
meantime, the statement of PW-4 was recorded at about 6 p.m.
on 22.3.1993 in the village where he was residing. During the
course of the investigation, it is stated that the accused persons
including the appellants herein were arrested on 31.3.1993 near
a Railway building in the village Dapoli, and on statements
made by these appellants, certain blood-stained weapons like
sickles and spear were recovered from the bushes near a
Railway crossing. It is based on the above prosecution case that
the accused persons including the appellants were tried by the
Additional Sessions Judge, Raigad, who convicted them, as
stated above, and which conviction to the extent stated
hereinabove, was confirmed by the High Court.
Mr. V.Rao Anumolu and Mr. S.M. Jadhav, learned
counsel appearing for A-11 and A-15 respectively, contended
that the courts below seriously erred in basing a conviction as
against these appellants on the evidence of PWs.-3 and 4 who
are the only two witnesses who have deposed against these
appellants. They contended that these two witnesses are highly
interested witnesses either being related to the deceased or
owing allegiance to the faction to which the victims in this case
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belonged. They also pointed out from record that the conduct of
these two witnesses after the incident in question was highly
artificial and opposed to ordinary human conduct. Therefore, a
conviction on such unreliable evidence of PWs.3 and 4 could
not have been based so far as these appellants are concerned.
Mr. Arun R. Pednekar, learned counsel for the State
contended that though PWs.3 and 4 may be treated as interested
witnesses that, by itself, is no ground to reject their evidence
because their presence at the time of the incident was quite
natural. Learned counsel further submitted that though there
may be some delay in recording the statements of these 2
witnesses but the same will not in any manner make their
statements unbelievable under the prevailing circumstances.
We have heard learned counsel and perused the records.
So far as these two appellants are concerned, the prosecution
solely relies on the evidence of PWs.3 and 4 as also some
recoveries made at their instance. Therefore, we consider it
appropriate to analyse the evidence of these two witnesses
rather carefully.
>From the evidence of PW-3, it is seen that at the time of
the incident, he was travelling on a scooter along with one
Narayan Ganu Naik when he saw these accused persons
including the appellants attacking the deceased Krishna Mahada
Naik. He then states that having seen the incident and
apprehending danger to his life, he turned his scooter and went
to village Koli where he took refuge in the house of Suresh
Kana Naik. In his further evidence he states that the accused
persons including the 1st appellant came to the said house,
dragged him out and assaulted him causing injuries to him. But
what is important to be noticed is that he did not state before the
Police when his statement was recorded a day later that these
two appellants had attacked deceased Krishna Mahada Naik for
which omission we find no explanation whatsoever. Though
this witness, PW-3, is an injured witness, we find it difficult to
place reliance on his evidence not only because of the
omissions mentioned hereinabove but also because of the fact
that his statement was recorded a day later when the
investigating officer had ample opportunity to record the said
statement on the day of the incident itself. The explanation
given in regard to this unwarranted delay is that this witness
was injured, and had to be taken to Bombay and brought back
to Panvel for treatment. Taking into account the nature of
injuries suffered by this witness and the opportunity
investigating officer had to record his statement, we think this
explanation given by the prosecution is not convincing. Bearing
in mind the fact that even according to this witness, large
number of people attacked the deceased and his omission to
state the names of these appellants as the assailants in his
previous statement, we think it not safe to place reliance on the
evidence of PW-3 to find the appellants guilty of the offences
charged without there being any material corroboration from
other independent acceptable source. That is even applying the
test laid down by this Court in the case of Masalti Etc. vs. State
of U.P. (AIR 1965 SC 202) which was followed by the High
Court in its judgment.
We will now consider whether the evidence of PW-4 in
any manner corroborates the evidence of PW-3 or for that
matter the said evidence of PW-4 is acceptable at all. PW-4 has
admitted that he is a close relative of deceased Krishna Mahada
Naik. While he had noticed the incident of the attack on the
deceased Krishna Mahada Naik, he has not spoken in any
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manner about the subsequent attack which includes the attack
on PW-3. According to this witness, at the relevant time, he
was going to the bus-stand to board a bus to reach his factory
where he was working when he saw the assault on the deceased
Krishna Mahada Naik by the assailants including the appellants.
Having noticed the incident, he did not go to any one of his
relatives’ house to inform about the attack in question. He knew
at that point of time that Krishna Mahada Naik was injured and
still alive, still he did not make any effort whatsoever to get any
help to shift the injured to a hospital. According to this witness,
even after seeing Krishna Mahada Naik lying injured in a
critical condition, he without informing anybody about the
incident, went to the bus-stand, took a bus and went to his
factory and even at that point of time, he had sufficient
opportunity to inform the other people about the incident or for
that matter, even the Police which he did not do. It is interesting
to note from the evidence of this witness that even though he
had an opportunity of approaching the police, he did go to them
because he did not know whom he had to inform about the
incident in the Police Station. The witness further states that he
went to the factory, worked for a while, took leave from the
factory and went back home. Even after reaching home, he did
not bother to find out from anybody there about the fate of the
victims nor did he inform anybody about he having witnessed
the incident. It is only at about 6 p.m. when PW-21 recorded the
statement for the first time, he came out with the fact of having
witnessed the incident. It is rather surprising as to how and in
what manner, PW-21 came to know that PW-4 was a witness to
the incident. The prosecution has also failed to explain the
delay in recording the statement of this witness, therefore,
bearing in mind the conduct of PW-4 in not informing anybody
about his having witnessed the incident and the delay in
recording his statement makes us hesitant to place any reliance
on his evidence. The only other piece of evidence relied by the
prosecution to support its case against these two appellants is
that of recovery which even according to prosecution, was
made from a place which was not in the exclusive possession of
the appellants and the said place was easily accessible by other
people and also the fact that recovery was made almost 9 days
after the incident in question, in our opinion, this piece of
evidence also would not at all be sufficient to base a conviction
of these appellants without further acceptable corroboration.
Therefore, we are of the opinion that these appeals must
succeed. The conviction and sentence imposed on the
appellants are set aside and the appeals are allowed.