JUDGMENT
S.P. Kukday, J.
1. Bapu Santosh Patil @ Rajput (accused No. 1), Sanjay Prakash Patil (accused No. 3) and Sunil Sursing Patil (accused No. 4) are convicted for having committed offences punishable under Sections 147, 148 and 302 read with 149 of the Indian Penal Code (IPC for short) for committing murder of Sachin Sursing Patil in the prosecution of their common object along with their associates. For the first offence the appellants are sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/- each. For the second offence they are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1500/- each and for the third offence they are sentenced to suffer imprisonment for life and to pay fine of Rs. 5000/- each. Sentence of fine carries default stipulation for non payment. These accused are acquitted of the offences punishable under Sections 324 and 325 read with 149 of IPC and Section 4 read with 25 of the Arms Act. Santosh Tulsiram Patil (accused No. 2), Chandrakiran Nandu Sonawane (accused No. 5) and Jitendra Chotulal Jadhav (accused No. 6) were acquitted of all the offences with which they were charged. Aggrieved by the order of conviction and sentence dated 4th August 2004 passed by IInd Ad-hoc Additional Sessions Judge, Jalgao; Criminal Appeal No. 630 of 2004 is filed by Bapu Patil (accused No. 1) and Sunil Patil (accused No. 4). Criminal Appeal No. 616 of 2004 is filed by Sanjay Patil (accused No. 3). The State has preferred Criminal Appeal No. 872 of 2004 against acquittal of accused Nos. 1, 3 and 4 for offences punishable under Sections 324 and 325 read with 149 IPC and Criminal Appeal No. 873 of 2004 against acquittal of accused Nos. 2, 5 and 6 of the offences with which they were charged. All these appeals arise out of the same order of conviction and sentence. The appeals are thus decided by a common order. The appellants and respondents are referred to as the accused to avoid confusion.
2. We may notice few relevant facts. Sachin Sursing Patil (deceased) celebrated auspicious Akshay Tritiya day on 15th May, 2002, by playing cards with his friends. He, however, quarrelled with Bapu Santosh Patil and slapped him. Bapu (accused No. 1) abused Sachin and swore that he would kill him within two three days. After the quarrel Sachin met his paternal cousin, Bharat (P.W. 10) and disclosed this fact to him. Both of them then went to Pan shop of their friend Vijaysing Patil (P.W. 4) with Ramesh Patil and Deepak Patil (not examined) at about 10.30 p.m. All of them then decided to go to Bansilal Hotel on Jalgao road for dinner. They had two motor cycles. Four of them went to the hotel on motor bikes. Vijaysing and Rushikant Patil (P.W. 5) took auto rickshaw. They finished dinner and went to Jaibhole Dhaba across the road at about 11.30 p.m. on motor bikes. After parking their vehicles near Dhaba, all of them were going to nearby Pan shop for having Pan. At about that time Bapu (A/1), Santosh (A/3) and Sunil, A/4, (younger son of Akkabai) along with three other assailants came there in auto rickshaw of Rajendra Patil (C.W.1). The assailants got down from both sides of the vehicle. Bapu was wielding sword and others were armed with knives. The assailants surrounded Sachin and started inflicting blows to him with weapons. When Vijaysing, Ramesh and Bharat intervened, some of the assailants inflicted blow just below the throat of Bharat and on the left hand of Ramesh. The hue and cry attracted attention of the customers of Jaibhole Hotel as well as the sentry Vijay Shriram Patil (P.W. 14). The sentry thus, came to the truck parked on the other side of the old highway and saw nine or ten assailants assaulting some one. While the assault was in progress, Bharat ran to the nearby Petrol Pump to seek help of the armed sentry deputed for duty at the Petrol Pump. He requested Vijay to save his brother. While Vijay was coming to the spot with Bharat he saw the assailants leaving the place in auto rickshaw. On reaching the scene of occurrence he found the injured lying on the ground. Vijay then informed Paldhi Outpost of Dharangaon Police Station. In response, constable Joshi came to the scene of the occurrence. Having confirmed the information, constable Joshi brought auto rickshaw within five to seven minutes. The constables put the injured on the foot board, injured Bharat occupied space meant for luggage, Vijaysing squatted in the middle and the constables occupied the seat on either side of Vijaysing, putting their feet on the back of the driver’s seat for going to Civil Hospital, Jalgao. Rushikant, Deepak and Ramesh followed them on motor bike. At the hospital the Medical Officer on duty declared that Sachin has expired. Bharat and Ramesh were admitted for treatment.
3. On return of P.S.I. Sitaram Jadhav (P.W. 16) to Police Station from patrolling at about 12.30 a.m. PSO informed him about the occurrence. He immediately went to the scene of occurrence and left for Civil Hospital, Jalgao, as he was informed that the injureds are taken to the hospital. On reaching the hospital at about 1.30 a.m. he recorded complaint of Vijaysing (Ex.46) as he came to know that the injured has expired. On the basis of this complaint offence was registered under Sections 147, 148, 302, 324 read with 149 IPC and Section 4 read with 25 of the Arms Act and the investigation was taken over by PSI Jadhav. The investigating officer held inquest on the dead body of Sachin (Ex.37) and sent it for the postmortem. Autopsy was performed by Dr.Sonawane. He found that the deceased suffered 37 external injuries. The autopsy surgeon prepared postmortem report (Ex.57) opining that the cause of death was cardio respiratory failure and haemorrhagic shock due to multiple stab wounds. Medical Officer Dr. Prabha Badgujar found that Bharat sustained incised wound on sternum of the size 2″ x 1/2″ (Ex.88) and Ramesh had suffered incised wound with fracture of middle condoyle of the left elbow (Ex.89).
4. On the next morning investigating officer visited the spot and collected sample of blood stained soil and control soil under panchanama (Ex.44). After recording statements of some persons from the hotels, he went to village Pimprala and recorded statements of Rushikant and Deelip. Clothes of the deceased produced by constable Joshi were attached under seizure memo (Ex.39) by ASI Jadhav at the Police Station. On 17th May 2002 auto rickshaw of Rajendra was attached under seizure memo (Ex.52). On 18th, Sanjay, Sunil and Chandrakant were arrested at the Police Station under Panchanama (Ex.92 and 93). Clothes of Sanjay and Chandrakant were attached under seizure memo (Ex. 94 & 95). On 21st, Accused Bapu and Santosh were arrested under panchanama (Ex.72). The accused were sent for medical examination and their blood samples were collected. On 23rd, Sanjay, Sunil, Bapu and Santosh made confessional statements (Ex.61, 67 and 65). Knife produced by Sanjay from forest behind a temple was attached under seizure memo (Ex.62); knife produced by Sunil from a place under Neem tree near the temple was attached under seizure memo (Ex.68). Sword concealed in the heap of dried cotton plants behind Makhansing Dhaba produced by Bapu was attached under seizure memo (Ex. 64). Dagger concealed in a pit behind Makhansing Dhaba produced by Santosh was attached under seizure memo (Ex.66). Clothes of Sunil, Santosh and Bapu were then attached under seizure memo (Ex. 96,97 & 98). On 4th June, 2002, Jitendra was arrested and his blood sample was collected. On 3rd and 14th June 2002 articles attached during the investigation and blood samples were sent to Forensic Laboratory and reports of the Chemical Analyser (Ex. 100-107) were received. Report of the Chemical Analyser (Ex. 100) discloses that clothes of the deceased and Santoba, pant of Sunil, sword, knives and dagger were stained with human blood. Clothes of deceased, dagger produced by Santosh and knife produced by Sunil were stained with blood of `O’ group. On the basis of the evidence collected during the investigation the accused were chargesheeted.
5. At the trial the accused set up a plea of false implication claiming that friends of the deceased killed him in a gambling brawl and threw his body at a convenient place, concocting a story of assault by them. According to the accused they are being falsely implicated due to political rivalry.
6. In support of its case the prosecution examined sixteen witnesses. Belated discovery of weapons and seizures of clothes of the accused impairs its credibility and makes it unsafe to rely on this evidence. This leaves us with the ocular testimony of the eye witnesses, evidence of constable Vijaysing (P.W. 14), the medical evidence and evidence relating to the scene of occurrence.
7. Vijaysing (P.W. 4) stated that on 15th May 2002 at about 10.30 p.m. Sachin (deceased), Bharat (P.W. 10), Rushikant (P.W. 5), Deepak and Ramesh came to his Pan shop. All of them went to Bansilal hotel for dinner. They finished the meals at about 10.45 p.m. and were returning on two motor bikes. On the way they parked motor cycles in front of Jaibhole hotel and were proceeding towards nearby Pan shop at about 11.30 p.m. At that time one auto rickshaw stopped near the hotel. Bapu Patil (A/1), Sanjay Patil (A/3), Jitendra (A/6) Chandrakiran (A/5), Santoba (A/2) and Sunil (A/4) armed with sword and knives got down from the vehicle. These assailants started dealing blows to Sachin while they were near the steps of the hotel. When he, himself, Bharat and Ramesh intervened, Bharat suffered injury under his throat and Ramesh sustained injury over his left hand. All the assailants then ran away. While they were watching Sachin, a police constable came there and took them to Civil Hospital, Jalgao. While they were admitting injured Bharat, one nurse told them that Sachin is dead. After some time PSI Jadhav (P.W. 16) came there and recorded his oral report (Ex. 46). Vijaysing stated that lights of two three nearby hotels and a petrol pump were burning at the time of the incident. He identified the assailants who were his friends. He further stated that later on he came to know that there was a quarrel between Sachin and Bapu at 2.30 p.m. while they were playing cards. During the cross examination Vijaysing admitted that he did not mention names of Santosh, Chandrakiran and Jitendra but had disclosed names of only three assailants in the FIR. The auto rickshaw stopped near the place where they parked motor bikes, Sachin was assaulted near the steps of the hotel. None of them tried to rescue Sachin. They were entreating the assailants to spare Sachin. In the shed of Jaibhole hotel 15 to 20 customers were taking food on the cots kept in this shed. No one had come there while the assault was in progress. People gathered after the assailants left the place. After arrival of the police constable they went to civil hospital in auto rickshaw. Both the constables occupied the seat with him. As Sachin was on the foot board, the constables had kept their feet on the iron bar at the back of the driver’s seat. Bharat occupied place meant for the baggage. His clothes were not stained with blood though he kept Sachin in the rickshaw. They reached the hospital within 20 to 25 minutes. He was interrogated by PSI Jadhav after the injured were admitted in the hospital. Vijaysing admitted that he is an accused in a case pending in the court of Judicial Magistrate First Class, Jalgao, under Section 325 IPC but denied that the incident did not take place near Jaibhole hotel as described by him. He further denied that the accused are falsely implicated due to group rivalry.
8. Rushikant Patil (P.W. 5) narrated the same story. He stated that while they were proceeding to Pan shop, Bapu armed with sword, Sunil, Santosh, Sanjay, Jitendra and Chandrakiran armed with knives arrived in auto rickshaw. Bapu threw Sachin on the ground and inflicted blows to him with sword. Other assailants were inflicting blows with knives. He tried to intervene. When Vijaysing, Bharat and Ramesh intervened, Chandrakiran inflicted blow on the throat of Bharat and Santosh dealt knife blow on the left hand of Ramesh. They went near Sachin after the accused ran away and saw that Sachin had suffered several bleeding injuries. Police constables then arrived and took Sachin to the hospital. He and Deepak followed the auto rickshaw to the hospital on the motor cycle of Sachin. Ramesh was with them on his motor cycle. When Bharat was admitted to the hospital, a nurse told them that Sachin is dead. Ramesh was then admitted to the hospital. He then returned to his house. In the course of the cross examination Rushikant disclosed that Bapu dealt blows to Sachin with sword after felling him on the ground. Sachin did not get up after he fell on the ground till he breathed his last. The assailants had surrounded Sachin while inflicting blows on him. Sachin did shout and obstruct the blows with his hands but was not rolling on the ground to dodge the blows. They were at a distance of five to seven feet from Sachin while the assault was in progress. Rushikant admitted that in his statement which was recorded at 8.30 a.m. on 16th May 2002 by one Head Constable, he did not mention full name of Jitendra. He repelled suggestion that no incident as testified to by him took place near Jaibhole hotel or that he is giving false evidence.
9. Bharat (P.W. 10) stated that while they were going towards Pan shop, Bapu armed with sword,Santoba, Sanjay, Sunil, Chandrakiran and Jitendra armed with dagger and knives got down from the rickshaw and rushed towards Sachin. They threw him on the ground. The assault was started by Bapu. He dealt blows to Sachin with sword, others joined him thereafter. When he, Ramesh and Vijaysing intervened, Chandrakiran dealt knife blow on his throat and Santoba inflicted knife blow on the hand of Ramesh. He rushed to the petrol pump for calling police constable. On returning to the scene of occurrence with the constable he saw that Sachin had suffered several bleeding injuries. Another police constable arrived within a short time. The constables then put Sachin and him in auto rickshaw. Sachin was put on the foot board and he occupied space meant for the baggage. They were then taken to the hospital. He regained consciousness at about three o’clock and was told that Sachin is under treatment. After five days he was discharged from the hospital and was informed by his brother that Sachin had expired. During the cross examination Bharat stated they shouted for help but the customers of the hotel did not come to their rescue. His clothes and clothes of Sachin and Ramesh were soiled with blood. The police constables did not ask him about the names of the assailants nor did he disclose their names to the constables on their way to the hospital. He met Ramesh on the next day but had not discussed the incident with him or others, till his statement was recorded by the police on 4th June 2002. Bharat admitted that he was accused in one session’s case but denied that they took food at about 5.30 to 6.00 p.m. on that day and were playing cards near Dhaba of Makhansing. He denied that at about 11.00 p.m. there was quarrel between them and Sachin, in which Sachin inflicted injuries to him and Ramesh. All of them then stabbed Sachin. Ramesh then ran away and got admitted to the hospital. They carried dead body of Sachin to Jaibhole hotel and he called the constable to concoct story of the assault by the accused. He denied that the accused were falsely implicated due to group rivalry.
10. Vijay (P.W. 14) stated that he was deputed for sentry duty at Totala petrol pump. On 15th May 2002 he heard hue and cry from the side of the road. He thus went near the truck parked on the other side of the old highway with his rifle and saw that nine of 10 persons were beating some one. While he was going in that direction one boy with injury to his leg and blood on his shirt came running towards him. The boy asked him to save his brother. Till he reached the place, owners of the Dhabas had switched off lights. He saw some persons boarding a rickshaw and leaving the place. The boy disclosed name of the injured as Sachin. Sachin had suffered injuries and was unconscious. He then conveyed information of the incident to Paldhi out post on telephone. In response constable Nishikant Joshi came to the scene of occurrence within ten to fifteen minutes on motor cycle. After he saw the injured, constable Joshi brought auto rickshaw within five to seven minutes. Both of them put Sachin in auto rickshaw and asked Bharat to sit in the rickshaw. Vijaysing also boarded the rickshaw. They sat on either side of the driver and brought the injureds to civil hospital, Jalgao. The medical officer at OPD declared that Sachin has expired and took Bharat to the ward for treatment of injury to his throat. He then returned to the petrol pump. In the cross examination constable Vijay stated that he saw scuffle between the assailants and the deceased, they were pushing, pulling and beating the deceased with hands. He, however, could not witness the incident properly as the lights were switched off. He did not see any one else than Bharat and Vijaysing near the deceased. Constable Vijay admitted that he did not inform his Head Quarter about the incident and left the place of duty without permission from his superiors.
11. Autopsy Surgeon Dr.Vinay Sonawane found following 37 external injuries on the dead body:
(1) Incised wound on forehead on mid part admeasuring 3 cm x 2 cm x Bone deep.
(2) Incised wound on forehead right side above right eye-brow, 5 cm x 2 cm x bone deep.
(3) Incised wound on upper lip 1-1/2 cm x 1/2 cm.
(4) Incised wound on left angle of mouth 2 cm x 1 cm.
(5) Incised wound on scalp left side 2 cm x 1 cm x bone deep.
(6) Incised wound on left pinna cut 1/2 cm.
(7) Incised wound on right parietal area 5 cm x 2 cm x bone deep.
(8) Abrasions on right shoulder anteriorly 3 cm
(9) Incised wound on right fore arm above wrist joint 1 cm x 1 cm.
(10) Incised wound on right thumb midealy 1 cm x 1/2cm.
(11) Incised wound on Rt.middle finger 2nd phalynx 1 cm x 1 cm.
(12) Incised wound on Lt.shoulder laterally 6 cm x 2 cm x muscle deep.
(13) Incised wound on Left Shoulder anteriorly 1 cm x 1 cm.
(14) Abrasion on Rt. arm midially upper 3rd at anterior axillary line.
(15) Incised wound on left arm posterior upper 3rd 2 cm x 1 cm x bone deep.
(16) Incised on left side above elbow 1 cm x 1/2 cm.
(17) Incised wound on Lt. wrist 3 cm x 2 cm x bone deep.
(18) Incised wound on left palm thenar area 5 cm x 2 cm x muscle deep.
(19) Incised wound on Index finger, Ist plalynx 1 cm x 1/2cm.
(20) Stab wound on Rt. pectoral area lateral to nipple, 2 cm x 1 cm x bone deep, edges are clear cut.
(21) Stab wound on right pectoral area lateral to nipple, 2 cm x 1 cm x bone deep, edges are clear cut.
(22) Incised wound on sternum midially, 2 cm x 1 m x bone deep.
(23) Incised wound on epigastric area, sternum 2 cm x 1 cm x bone deep.
(24) Incise wound on Lt. pectoral area below nipple, 2 cm x 1 cm x bone deep.
(25) Incised wound on chest Lt. side at on 12th rib anteriorly, 2 cm x 1 cm x bone deep.
(26) Incised wound on chest Lt. side at on 12th rib lateral to above injuries.
(27) Incised wound on abdomen anteriorly on Rt. side toumbilicul, 2 cm x 1 cm. Imentum is coming out.
(28) Stab wound on Lt. scapular area middle border, penetrating in chest, 1-1/2 cm x 1 cm (w same injuries).
(29) Stab wound on Lt.scapular area middle border, penetrating in chest, 1-1/2 cm x 1 cm x penetrating in the chest.
(30) Stab wound on lft. chest posterior below angle of scapula, 2 cm x 1 cm x penetrating in chest.
(31) Ten multiple injuries around posteriorly on chest of 2 cm x 1 cm x penetrating in chest present.
(32) Stab wound on Rt.side at 13 vertebra, 3 cm x 1 cm x penetrating in abdomen.
(33) Incised wound on back on 12, 1 cm x 1 cm x bone deep. 12-Number vertebra No. 2.
(34) Stab wound on sacral area, 2 cm x 1 cm x bone deep.
(35) Stab wound on Lt. buttock at sacral hiatus.
(36) Stab wound on abdomen Rt.side at post axillary line on 11th Rib and 12th Rib penetrating in abdomen.
(37) Incised wound on Rt. thigh, mideally and anteriorly 1 cm x 1/2 cm.
12. On internal examination the Autopsy Surgeon found that plura, right ventricle were punctured, two incised wounds were noticed on the right side of liver on the posterior aspect. There was injury to left kidney near hilum and 100 cc of perinephric haematoma (100 cc) was present. On the basis of the data available, the Autopsy Surgeon opined that the death was caused on account of cardio respiratory failure due to haemorrhagic shock due to multiple stab injuries. He issued post mortem report (Exh.57) giving all the data of the post mortem. The surgeon found that there was semi solid food in the stomach. On the basis of this observation, he opined that the death might have been caused more than six hours after the last meal as food takes about four to six hours to pass out from the small intestine. During the cross examination, the Autopsy Surgeon observed that Dal, Chapati and rice remains in the same position after half an hour. As the food was semi digested, he could not observe whether it consisted of Dal, Chawal or non vegetarian. The Surgeon disagreed with the sugestion that Dal, rice and Chapati converts into semi digested state after about two and half hours of the intake. He, however, agreed with the suggestion that the deceased might have taken food prior to about six hours before his death. Answering the Court question, the Autopsy Surgeon observed that the victim might be in a standing position when he was assaulted and the injuries received by him were caused within 12 hours of the post mortem.
13. Dr. (Mrs.) Prabha Badgujar (PW 15) was on duty at Civil Hospital, Jalgaon, during the relevant period. She examined Ramesh at about 12.55 a.m. Ramesh had sustained an incised wound on lateral side of the left elbow joint of the size 1″ x 1/4″. She noted this injury in certificate Ex.89.
14. She admitted Bharat (PW 10) to the hospital on the basis of the requisition letter from the Police on 16.5.2002 at about 1.25 a.m. On examination she found that the patient had sustained an incised wound on sternum admeasuring 2″ x 1/2″ which was caused within six hours of the examination by weapon such as knife. She, accordingly, issued injury certificate Exh.88. The Medical Officer accepted the suggestion of the defence during cross examination that the injuries suffered by Bharat as well as Ramesh could be self inflicted injuries. The Medical Officer mentioned that Ramesh had given history of sustaining injury by knife. He had not been sent by the Police. She, however, had received requisition from Police in case of Bharat. That requisition letter is not traceable and cannot be produced.
15. P.I. Sitaram Jadhav (PW 16) has narrated the steps taken by him during investigation. On receipt of the information at about 12.30 in the night, he went to the scene of occurrence and came to know that the injureds were sent to Civil Hospital. He, therefore, went to Civil Hospital and was informed that the victim has expired. He, therefore, recorded complaint of Vijaysing Patil (Ex. 46) and sent it for registration to the Police Station. After taking over investigation, he held inquest on the dead body (Exh.37) and sent it for post mortem. On the next day morning, he visited the scene of occurrence at about 7 a.m. and prepared panchnama (Ex. 44). The scene of occurrence is about 30 feet from Jai Bhole Hotel. He collected bloodstained soil and adjacent control soil during the course of panchnama. The investigating officer refers to arrest of the accused, discovery of weapons and seizure of auto rickshaw No. MH-19-8851 belonging to Rajendra Patil (CW 1) under seizure memo (Exh.52). During the cross examination, investigating officer has admitted that names of only three persons are mentioned in the FIR by Vijaysing. When statement of Rushikant (PW 5) was recorded on the next morning he mentioned names of all the accused. However, full names of Santosh, Chandrakiran and Jitendra are not given by Rushikant. The investigating officer has explained that Bharat was under treatment and was not in a position to make a statement. His statement came to be recorded on 4th June, 2002. The investigating officer further admitted that during the course of investigation he found that Rajendra Patil (CW 1) was the rickshaw driver and the assailants had used his rickshaw for arriving at the scene of occurrence and for their escape. He, however, found that Rajendra was compelled to ferry the culprits under the threat of dire consequences. This is the reason why he has not arrayed Rajendra as one of the accused. Rajendra Patil (rickshaw driver), who is examined as a court witness has stated that on the day of the occurrence at about 10.30 p.m. Bapu (accused No. 1) asked him to take them to Dhaba from Gujral Petrol Pump. Bapu boarded his ricksaw with his five associates. First he took them to Nalanda Hotel where the passengers were searching for motor cycle of Sachin. He then took them to Jaishri Hotel infront of the petrol pump. From Jaishri Hotel he went back to his house. Later, he came to know that Sachin was murdered on the same night. His rickshaw was subsequently attached by the investigating officer. During his cross examination by the Counsel for the accused, it has been brought on record that in the Police statement he mentioned that he had taken the accused to Jai Bhole Hotel and not to Jaishri Hotel. The omission has been brought on record. It has further been brought on record that he was detained in the Police Station for four days without producing him before the Magistrate. He made a statement to the Police only after assurance that no harm will come to him was given.
16. On appreciation of the evidence, the Sessions Judge repelled contention of the defence based on the time of the death given by the autopsy surgeon that the incident did not take place at 11.30 p.m. in front of Jaibhole hotel as propounded by the prosecution. Learned Sessions Judge found that medical evidence cannot override ocular evidence which inspires confidence. The Sessions Judge further found that testimony of the eye witnesses, to the extent it is corroborated by the recitals of the FIR, is worthy of belief. In conformity with this conclusion, learned Sessions Judge convicted the appellants of the offences punishable under Sections 147, 148 and 302 read with 149 and sentenced them as stated earlier.
He, however, acquitted Santoba (A/2), Chandrakiran (A/5) and Jitendra (A/6) of the offences with which they were charged, as their names were not mentioned in the F.I.R.
17. In support of the appeal learned Counsel for appellant Sanjay (Criminal Appeal No. 616 of 2004) Shri R.N. Dhorde would argue that the visit to Bansilal Hotel by the deceased and his friends was not preplanned. They decided to go to the hotel for dinner at 10.30 p.m. Their visit to the Pan shop near Jaibhole hotel was also not planned. Therefore, the appellant could not have had knowledge of the movements of the deceased and could not have planned assault. In this background, no reliance can be placed on the evidence of the partisan witnesses. It is contended that their evidence is contradicted by the medical evidence regarding the time and the place of occurrence. It is further contended that delayed recording of the FIR and the statements of the witnesses afforded an opportunity to them for concocting a false version of the incident to implicate the appellant on account of village politics. In fact the prosecution witnesses suppressed genesis of the occurrence and made an improvement in their evidence to implicate accused Nos. 2, 3 and 6. In this scenario, the trial Judge has committed an error in lightly brushing omission on the part of the prosecution to examine independent witnesses from the hotel and placing implicit reliance on the evidence of the prosecution witnesses. According to learned Counsel, considering the medical evidence that the incident took place six hours after the last meal, defence of the accused that in fact the deceased was killed by his friends in a gambling brawl and taking advantage of the situation they were falsely implicated deserves to be sustained. Learned Counsel has placed reliance on the decisions of the Apex Court in support of his contentions.
18. Adopting the arguments advanced by Shri Dhorde, learned Counsel Mrs. Jadhav, for accused Nos. 1 and 4 argued that suppression of the genesis of the occurrence makes it hazardous to rely on the tainted evidence of the partisan witnesses. The trial Judge has committed an error in not properly analyzing the evidence on record and convicting the appellants on the basis of tainted evidence of partisan witnesses.
19. In support of the appeal against acquittal and countering arguments advanced on behalf of the appellants; learned A.P.P. Shri Borade pointed out that FIR was promptly recorded by the investigating officer. The first informant had suffered a shock, he disclosed names of those assailants which he remembered and referred to one of the assailants as the son of Akkabai at the time of narrating the incident to the investigating officer soon after the occurrence. On the next morning Rushikant (P.W. 5) disclosed names of other assailants. Thus, the criticism that accused Nos. 2, 5 and 6 are falsely implicated is totally unwarranted. According to Shri Borade, opinion of the autopsy surgeon about the time of death based on the contents of the stomach cannot override reliable evidence of eye witnesses which receives corroboration from the testimony of the police constable who immediately rushed to the scene of the occurrence. In this background criticism that the prosecution witnesses have suppressed genesis of the occurrence is without justification. Testimony of the prosecution witnesses is cogent and credible. Their evidence establishes complicity of all the accused in commission of the offence. Considering the totality of the material on record appeals against conviction deserve to be dismissed and appeals preferred by the State against acquittal deserve to be allowed.
20. We have carefully examined entire record and the proceeding with the assistance of learned Counsels for both sides. First contention of learned Counsels for the appellants is that the conviction of the appellants is based on erroneous appreciation of evidence. In appreciating oral evidence, the question which normally arises is whether the evidence of the prosecution witnesses is truthful or whether there is some infirmity which raises suspicion about the veracity of these witnesses. For appreciating evidence, the court has to consider effect of inconsistencies, exaggerations and embellishments, appearing in the evidence. Normal inconsistencies appear in the evidence of even a truthful witness on account of difference in the faculties of each individual to retain, recall and reproduce past events. These discrepancies do not materially affect credibility of a witness nor does it create any infirmity in the prosecution case. Only those inconsistencies which tend to show that the story narrated by the witness is improbable and affects essential features of the prosecution case, corrodes evidentiary value of the testimony of a witness. While appreciating testimony of partisan witnesses the court has to consider broad probabilities of the case for assessing intrinsic worth of their evidence. Circumstances proved by the prosecution, natural course of human conduct, demeanour of the witness, the manner of giving evidence and the probabilities of the prosecution case are some of the guiding factors which assist the Court in evaluating probative value of the evidence of partisan witness. In cases where the bias of the witness is apparent, it is the duty of the court to exercise due care and caution in appreciating evidence of partisan witnesses. It is also well settled that in case of conflict between the ocular evidence and medical evidence, the ocular evidence would prevail if it is otherwise trustworthy and inspires confidence. However, if the inconsistency on a vital point cannot be reconciled, the court has to consider cumulative effect of the evidence to ascertain whether testimony of the prosecution witnesses is reliable or deserves to be discarded. This aspect of the appreciation of evidence has been highlighted by the Apex Court In Krishnan v. State . In para 21 Their Lordships observed:
21. It is trite that where the eye witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses’ account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the “credit” of the witnesses; their performance in the witness box, their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
21. Learned Counsel for the appellants contend that the trial court erred in relying on the testimony of the partisan witnesses ignoring the medical evidence which shows that the incident must have taken place some time between five to six o’clock in the evening and the fact that Ramesh went to the hospital prior to the deceased and immediately left the hospital. We have carefully considered testimony of the eye witnesses. Version of the incident deposed to by Vijaysing (P.W. 4) is that after taking food they parked vehicles near Jaibhole hotel. While they were proceeding to the Pan shop Bapu (A/1), Sanjay (A/3), Jitendra (A/6), Chandrakiran (A/5), Santoba (A/2) and Sunil (A/4) got down from the auto and assaulted Sachin near the steps of the hotel. Bapu inflicted blows with sword and others stabbed Sachin with knives. During the course of the incident he, himself, Bharat and Ramesh suffered injuries. Version of the incident testified to by Rushikant and Bharat is consistent with the narration of the incident by Vijaysing. All the three witnesses have frankly conceded during the cross examination that they did not attempt to wrestle with the assailants but were entreating them to spare the victim. This conduct of the eye witnesses appears to be natural as it would not be possible even for a valiant person to resist aggression by six armed assailants. Testimony of these witnesses as to the manner of the assault and the weapons used is fully corroborated by the medical evidence of autopsy surgeon. The post mortem report (Ex. 57) discloses the brutal attack which led to causing of 37 external injuries. The autopsy surgeon has categorically mentioned that these injuries can be caused by sword and knives. Bharat is an injured witness. Presence of Bharat and Vijaysing is established by the unchallenged evidence of constable Vijay (P.W. 14). Vijaysing has mentioned that people gathered at the scene of occurrence after departure of the assailants. Thus, omission on the part of Vijay to notice presence of Ramesh, Deepak and Rushikant who were strangers to him is natural. Presence of Ramesh is established as he suffered an injury during the course of the incident. As the friends had taken dinner together, presence of Deepak and Rushikant, vouched for by Vijaysing and Bharat can be safely accepted. Evidence of Vijaysing, Bharat and Rushikant to the extent of the participation of accused Nos. 2, 5 and 6 is discarded by the trial judge on the premise that names of these accused are not found in the FIR. We see no infirmity in the reasoning of the Sessions Judge. Had these accused been known to them, Vijaysing would have named them in the FIR. In this view of the matter we do not find any fault with the conclusion of the Sessions Judge that accused Nos. 2, 5 and 6 are entitled to a benefit of doubt. It is tried to be canvassed that there is an unexplained delay in recording complaint of Vijaysing. The Sessions Judge has referred to the relevant data to show that the FIR is recorded without undue delay, before the witnesses had time to consult each other and concoct a false story. Besides, the plea of false implication is not well founded. No evidence is adduced to establish that the assailants and the witnesses in fact belonged to rival political groups. It is well settled that the doctrine of “Falsus in uno, falsus in omnibus” does not apply to Indian ethos. The testimony of Vijaysing, Bharat and Rushikant in relation to the complicity of accused Nos. 1, 3 and 4 which receives corroboration from the evidence of constable Vijay and the medical evidence, inspires confidence. The fact that in view of the omission to mention names of other culprits in the FIR led to granting of benefit of doubt to these accused cannot affect probative value of their evidence in relation to the appellants. On careful consideration of the material on record we do not find any infirmity in the reasoning of the Sessions Judge regarding the complicity of the appellants in the commission of the offence.
22. Learned Counsels for the appellants have insisted that adverse inference to be drawn for non examination of the customers of the hotel who undoubtedly witnessed the incident. There cannot be any dispute with the proposition that withholding of the best evidence gives rise to an adverse inference. The duty of the prosecution is to examine those persons whose evidence would be valuable for furthering its case or corroborating evidence of the eye witnesses. We fail to visualize how the evidence of disinterested customers of the hotel who were engrossed in taking food, would have achieved this purpose. Even otherwise, when the evidence of eye witnesses is consistent and inspires confidence, non examination of disinterested witnesses who could not have given any valuable information cannot adversely affect the prosecution case, more so because police constable Vijay (P.W. 14) who did witness the incident from about the same distance, and can be regarded as an independent witness has been examined by the prosecution. Considering the circumstances of the present case, we are unable to sustain contention of the learned Counsels for the appellants that non examination of the independent witnesses affects the veracity of the prosecution case. In support of his contention learned Counsel Shri Dhorde has placed reliance on the decision of the Apex Court In Hemraj Ors. v. State of Haryana .
In that case evidence of P.W. 4 was found to be unreliable in view of several infirmities in his evidence and the absence of blood on the scene of occurrence. In this context the Apex Court observed that non examination of independent witnesses, though available, assumes importance. Reliance for this proposition is also placed on the ruling of the Apex Deepak Kumar v. Ravi Virmani and Anr. . In this case Their Lordships found that Sukhdayal who was an independent witness and could have said as to whether Virmani was caught by him with the murderous weapon in his hand or not, and the fact that no independent witness was examined though large number of people were available does affect credibility of Deepak. Their Lordships, however, observed in para 30 of the report that “it is not that multiplicity of witnesses would improve the situation neither we ought to be understood to hold that corroboration from independent witnesses stands out to be a mandatory requirement – witnesses though be interested can be relied upon provided, however, the evidence available on record is trustworthy and creates a confidence in the mind of the court that the scrutiny entails only pointing out of commission of an offence by the accused persons and that scrutiny in totality leads to an inevitable conclusion of the guilt of the accused.” The dictum is explicit, need for corroboration from independent witness arises only in case the evidence of the partisan witness lacks credibility. Such is not the situation in the present case. The authorities cited before us, therefore, do not assist the appellants in substantiating their contention on the point of non examination of independent witnesses.
23. The next contention, that the prosecution has failed to establish that the incident had taken place in front of Jaibhole Hotel is two pronged. It is contended that in view of the opinion of the autopsy surgeon the incident did not take place at 11.30 p.m. as deposed to by the prosecution witnesses. It is further submitted that there is no evidence to corroborate testimony of the eye witnesses that the incident took place near Jaibhole hotel. In our considered opinion contention regarding absence of corroboration is without any foundation. The fact that blood of `O’ group of the deceased was found in the sample of the soil collected from the spot by the investigating officer under panchanama (Ex. 44) and uncontroverted testimony of constable Vijay (P.W. 14) lends sufficient corroboration to the evidence of the eye witnesses and does establish that the incident did take place at 11.30 p.m. near Jaibhole hotel. Turning to the second limb of the argument based on the opinion of the autopsy surgeon, we may recall the dictum that, in case of a conflict between the ocular testimony and the medical evidence, the ocular evidence prevails unless it belies the fundamental facts. In case of variance between the medical evidence and ocular evidence, the ocular evidence should be separately assessed to ascertain its probative value. If the ocular evidence inspires confidence it would take precedence over the medical evidence which does not provide data with mathematical precision. Estimation of time based on the contents of the stomach depends on too many variables. The Medical Jurists concede that the estimation can only be tentative. This factor must also be considered. There can be supervening circumstances which might provide an explanation. All this data is not always available in record. In this background, the principle is evolved that if the ocular evidence is satisfactory and inspires confidence, it should take precedence over the medical evidence. The Apex Court was dealing with similar set of circumstances in State of U.P. v. Rasid and Ors. . In that case the eye witnesses testified that the incident had taken place at 9.30 a.m. The High Court, however, considered the medical evidence in the form of contents of the stomach for coming to the conclusion that the incident could not have taken place at 9.30 a.m. as testified to by the eye witnesses. After confirming the truthfulness of the evidence of the eye witnesses, the Apex Court observed:
Herein we must notice that the High Court has also relied upon the medical evidence to show that the dead bodies of Nasir and Chheddan contained semi-digested food when the post-mortem was conducted, therefore, the High Court inferred that the incident in question must have occurred much before these two deceased had an opportunity to answer the call of nature. This is a probability which can be utilised for the purpose of determining the time of incident provided there is no other acceptable evidence. Then again we must notice before the court decides to determine the time of death based on the stomach contents of the deceased, the court should first find out whether there is material to show on record as to the possibility of the deceased having or not having an opportunity to go to answer the call of nature before his/her death. It is not as if every human being without exception goes to ease himself first thing at daybreak, there may be innumerable reasons not to do so, therefore, presence of semi-digested food in the stomach of the deceased is not an absolute proof of the fact that the deceased must have died before daybreak. While we do agree that this can be a factor to be taken into consideration it cannot be such a prime factor as to overrule the acceptable oral evidence which is available on record. We also have to notice that the medical evidence tendered by PW 7 does not in fact support either of the sides because the doctor has said specifically from the appearance of rigor mortis that the death could have occurred at 9.30 a.m. on 20.2.1982. In the cross examination, he accepted the suggestion that the same could have occurred even earlier basing his opinion on the stomach contents, therefore, in the present case the medical evidence does not help the court to come to a positive conclusion as to the time of death. Therefore, on reappraisal of the evidence on record, we are of the opinion that the prosecution in this case has established by oral evidence that the incident had actually occurred at about 9.30 a.m. and we find no reason why we should disbelieve the oral evidence in this regard especially because of the evidence of the independent injured witnesses like PW 11 and other two independent witnesses PWs 4 and 12 in regard to the timing of the incident.
24. In the present case on the basis of the contents of the stomach the autopsy surgeon has opined that the death must have taken place about six hours after the last meal. Contention of learned Counsel for the appellants that the prosecution witnesses have suppressed genesis of the occurrence and the defence adopted by the accused that the murder is committed by the prosecution witnesses and they are falsely implicated on account of the enmity, are based on the opinion of the autopsy surgeon regarding the time of death. We have noticed that the trial judge has referred to the commentary on the topic from Modi’s Medical Jurisprudence and the authorities cited by the parties. Commenting on the topic “Time since death” (page 449) the Author in his book “Modi’s Medical Jurisprudence and Toxicology (Twenty third edition) has mentioned that (i) warmth or cooling of the body; (ii) the absence or presence of cadaveric hypostasis; (iii) rigor mortis (iv) progress of decomposition and the contents of the stomach are generally considered for determination of the time of death. The author has made it clear that the period of digestion varies from 2.5 to 6 hours depending upon the nature of the food consumed. It is also made clear that some times the digestion may continue after the death. On an average the time required for digestion is taken to be six hours. We may reiterate that unless the medical evidence belies fundamental facts it cannot override ocular evidence which is found to be truthful. This aspect is elaborated In Ram Bali v. State of U.P. . In para 10 of the report the court observed:
10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of A.P. observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh v. State of Punjab it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.
25. In the present case it appears that the autopsy surgeon has given his opinion as to the time of death without proper application of mind. The postmortem report discloses that there was semi solid food in the stomach. Had the death taken place six hours after the last meal, the stomach would have been empty. Presence of semi solid food shows that the process of digestion had started and would indicate that the death must have been taken place within one hour of the last meal. We also noticed that the reply of the autopsy surgeon to the query that “I do not agree that after 2-1/2 hours of the intake of solid food, like Dal, Rice and Chapati, it converts into semi digested state. The deceased might have taken food prior to about six hours before his death.” is not in tune with the tenets of medical Jurisprudence. If the period of digestion is six hours, the food will be in a semi digested state after 2-1/2 hours. It is also pertinent to bear in mind that to a court question the autopsy surgeon replied that the injuries sufferedby the deceased may have been caused within 12 hours of the postmortem. Besides in column number 11 of the postmortem report it is shown that the rigor mortis was present all over the body indicating time of death before 12 hours of the postmortem. The postmortem started on 16th of May, 2002, at 10.00 a.m. and was completed at 11.00 a.m. This data also indicates the time of death to be around 11.00 p.m. on 15th. In the light of this we cannot persuade ourselves to accept opinion of the autopsy surgeon that the death took place six hours after the last meal. If the data is properly considered the medical evidence in fact corroborates the ocular testimony. In support of his contention based on the opinion of the autopsy surgeon, learned Counsel has placed reliance on the decision of the Apex Court In Madan Madan Madan and Anr. v. State of Rajasthan 2004 Cr.L.J. 1010. In that case the stomach was empty, thus it was held that the deceased had taken food 7-8 hours earlier. Reliance is also placed on the decision of the Apex Court In Moti etc. v. State of U.P. 2003 AIR SCW 1372. In this case also the stomach and both intenstines were empty, thus it was held that the death had taken place at least 3-4 hours after the last meal. Both these decisions are based on the facts of those cases. In our opinion these authorities do not support contention of learned Counsel that in the present case the death took place six hours after the last meal.
26. Learned Counsel for the appellant Shri Dhorde has next submitted that though the constables and Vijaysing handled body of Sachin while putting it in auto rickshaw their clothes were not stained with blood. It is contended that absence of the evidence to show that clothes of these witnesses were stained with blood affects credibility of their testimony. It has been brought on record that the deceased had suffered bleeding injuries. His dead body was lying on the spot for considerable period. Besides explanation on this behalf is solicited from Vijaysing during the cross examination. Reply of Vijaysing shows that all of them had taken precautions to avoid staining of clothes. He was squatting on the seat and the constables had put their feet on the bar behind driver’s seat. As most of the blood must have flowed out while the body was lying on the spot and precautions were taken by these witnesses to avoid staining, assuming that their clothes were not stained with blood, absence of blood stains on their clothes, cannot give rise to sinister inference, as the evidence of eye witnesses has received ample corroboration from the medical evidence and the evidence of constable Vijay. Learned Counsel has cited ruling of the Supreme Court in the matter of State of Rajasthan v. Taran Singh and Anr. 2004 Cri.L.J. 654 to substantiate contention based on the absence of blood on the clothes of witnesses. In that case P.W. 1 claimed to have carried the deceased on his shoulder and P.W. 2 held his chest. It was thus found that non staining of the clothes of P.W. 1 and P.W. 2 was next to impossible. Coupled with this anomaly, other circumstances created doubt regarding the presence of the witnesses at the time of occurrence. This authority does not substantiate contention advanced as facts of the present case are entirely different. Learned Counsel for the appellants Shri Dhorde, has also referred to the conduct of Ramesh and Rushikant in leaving the hospital, contending that their behaviour is strange and casts a shadow of doubt on the prosecution version of the incident. Vijaysing and Bharat are relatives of the deceased. Bharat was required to be admitted in the hospital, Vijaysing was assisting him and later made a statement to the investigating officer. Both of them, therefore, stayed at the hospital. Ramesh was treated and discharged by Dr.Badgujar (P.W. 15). Both Ramesh and Rushikant were in a disturbed mental state, thus as Sachin had expired and completion of the formalities were to take time, the fact that Ramesh, Deepak and Rushikant left the hospital cannot be viewed with suspicion. In the light of these facts it is not possible for us to sustain contention of learned Counsel that strange behaviour of Ramesh and Rushikant affects truthfulness of the version of the incident propounded by the prosecution.
27. Considering the totality of the circumstances we find that the presence of eye witnesses at the scene of the occurrence is duly proved, Bharat and Ramesh had in fact suffered injuries during the course of the incident, the evidence of the eye witnesses is corroborated by the medical evidence and the evidence of constable Vijay. In our considered opinion no fault can be found with the appreciation of evidence of these witnesses by the trial Judge. The trial judge has rightly exercised discretion to give benefit of doubt to accused Nos. 2, 5 and 6 as their names were not mentioned in the FIR. Thus, the acquittal of accused Nos. 2, 5 and 6 of all the offences with which they were charged deserves to be upheld. Conviction of the appellants for the offence of rioting with the use of deadly weapons and commission of murder of the deceased in the prosecution of the common object of unlawful assembly formed by them with three unidentified assailants is justified as the assailants had come prepared with weapons in the same auto rickshaw and assaulted the deceased in unison. The evidence of eye witnesses does establish beyond doubt that the culprits formed an unlawful assembly with the common object of committing murder of the deceased and did achieve their object. However, in view of the divergence between the testimony of Vijaysing, Bharat and Rushikant and the fact that names of Chandrakiran and Santoba are not mentioned in F.I.R. benefit of doubt is given to the alleged assailants of Bharat and Ramesh. The testimony of eye witnesses does not even suggest that the object of unlawful assembly was to assault Bharat and Ramesh besides committing murder of Sachin. In the light of these facts acquittal of the appellants for the offences punishable under Sections 324 and 325 read with 149 I.P.C. cannot be faulted. Acquittal of the appellants for the offence under Sections 4 read with 25 of the Arms Act is also justified in absence of proof of requisite notification prohibiting possession of weapons in that particular area as required by law. In the light of this we confirm order of conviction and sentence passed by the trial judge. In the result, Criminal Appeal Nos. 616/2004 and 630/2004 against conviction of appellants and Criminal Appeal Nos. 872/2004 and 873/2004 filed by the State against acquittal of accused fail and are dismissed accordingly.