JUDGMENT
Marlapalle, J.
1. An innocent Dalit, who had temporarily become
disabled, became a victim of a mob fury and was
mercilessly beaten up and subsequently roasted alive.
In addition, about 25 to 30 houses of the Dalit
families were set on fire and their belongings were
damaged. It was for these reasons that in all 64
accused were put on trial in Sessions Case No. 32 of
1989 before the Sessions Court at Jalgaon, for
offences punishable under sections 147, 148, 302, 323,
436, 504, 506 read with section 149 of the Indian
Penal Code and section 7(1)(d) of the Protection of
Civil Rights Act. The learned 4th Additional Sessions
Judge at Jalgaon tried them and by judgment and order
dated 19th of February, 1996 he convicted Shri
Bhagwandas alias Shivaji Patil (Accused No.1), Raman
Jagan Patil (Accused No. 2), Dharmaraj Narayan Shinde
(Accused No.5), Chandrakant Ramkrishna Patil (Accused
No. 8), Jankiram Pandharinath Patil (Accused No. 28)
and Prakash alias Batuk Kashinath Patil (Accused
No.40) for offence punishable under sections 147, 148,
302, 323, 436, 504 and 506 read with section 149 of
the Indian Penal Code whereas the other 56 accused
came to be acquitted of all the offences they were
tried for. All the 62 accused, have been acquitted
for the offence under section 7(1)(d) of the
Protection of Civil Rights Act. While the trial was
pending Sukhadev Sadashiv Patil (accused No. 7) and
Tukaram Patil (accused No. 56) had expired and the
trial was, thus, proceeded against only the remaining
62 accused.
2. Appeal No. 96 of 1996 has been filed by the 6
Accused who have been convicted and sentenced, whereas
Criminal Appeal No. 148 of 1996 has been filed by the
State of Maharashtra against only 7 of the 56
acquitted Accused. Out of the said 7 Respondents/
accused, Respondent No. 1 (Accused No. 39 Shri Popat
Haribhau Patil) died on 13th June, 1996 and,
therefore, as per order dated 12th December, 1996
Criminal Appeal No. 148 of 1996 was abetted against
the said Accused and it, thus, survived only against
the remaining 6 Accused i.e. Pandharinath Namdeo
Patil (Accused No. 37), Vasudeo Mohan Patil (Accused
No. 13), Ashok Hiraman Patil (Accused No. 19),
Tukaram Mohan Patil (Accused No. 36), Govind Mohan
Patil (Accused No. 46) and Namdeo Baburao Patil
(Accused No. 32).
3. The six accused, who were convicted, have been
sentenced to suffer imprisonment for life for offence
punishable under section 302 read with section 149 of
the Indian Penal Code and a fine of Rs.500/- each,
rigorous imprisonment for 5 years and to pay a fine of
Rs.500/- each for offence punishable under section 436
read with section 149 of the Indian penal Code, to
suffer rigorous imprisonment for 3 months and to pay a
fine of Rs.200/- each for the offence punishable under
section 323 read with section 149 of the Indian Penal
Code, rigorous imprisonment for three months and to
pay a fine of Rs.200/- each for offence punishable
under section 504 read with section 149 of the Indian
Penal Code and rigorous imprisonment for 6 months and
to pay a fine of Rs.300/- each for the offence under
section 506 Part-II read with section 149 of the
Indian Penal Code, rigorous imprisonment for 3 months
and to pay a fine of Rs.100/- each for offence under
section 147 of the Indian Penal Code and rigorous
imprisonment for 3 months and to pay a fine of
Rs.200/- each for offence punishable under section 148
of the Indian Penal Code. It needs to be noted, at
this stage, that in the impugned order under appeal
the accused No. 2 has been listed in the operative
order in the list of accused as well as the acquitted
persons and this is certainly due to inadvertence. We
have read the entire judgment under appeal and we have
noticed that Accused No. 2 has been convicted along
with 5 other Accused/ Appellants in Criminal Appeal
No. 96 of 1996 and he is, in fact, one of the
Appellants in the said Appeal. This fact also goes to
show that he has not been acquitted from any of the
offences under the Indian Penal Code for which he was
tried alongwith other 61 accused. All the 6 Accused/
Appellants were refused bail while admitting their
appeal and they have remitted the fine amounts.
4. The prosecution case briefly begins with an
incidence that happened in the morning of 2nd August,
1987 in village Avhane, Taluka and District Jalgaon
and which was located, at the relevant time about 4 to
5 Kms. away from Jalgaon municipal area. In the said
village the Dalit Vasti is located towards the south
and north of the road leading from Jalgaon to the
village Avhane. The Harijanwada on the north is
called as “Rajwada” or “Budhhawada” and the Harijan
locality on the south side is called as “Plot area”.
Udhav Raghav Sapkale, who has his house in the south
side Harijan locality, was allegedly scolded and
beaten in the morning by Popat Hari Patil (Accused No.
39) who was the Chairman of the Crop Protection
Society formed in the said village and on the ground
that he had committed theft of fodder. Ratan S/o
Paulad Sapkale Complainant (PW5) was a member of the
Village Panchayat and belonged to the Scheduled Caste
(Budhha). Udhav Raghav Sapkale approached him and
narrated the incidence of beating by Popat. Ratan,
therefore, suggested to Popat to recover fine from
Udhav rather than beating him and the incident was
accordingly closed.
Ratan (PW5) had six brothers by name Ramdas,
Shamrao, Pandit, Yeshwant and Bhimrao and one sister
by name Janabai. Ramdas (PW6) and Shamrao
(deceased-victim) were having their separate houses in
the southern locality whereas the other four brothers
were staying in the northern Rajwada locality,
including sister Janabai. Ramdas was, at the relevant
time, employed as mechanic in the S.T. Depot at
Jalgaon and on 2nd August, 1987 he had returned to
village Avhana at about 6.45 p.m. after completing
his duty hours, by bus and while he was sitting in the
stationery bullockcart in the courtyard of his house
with his daughter, Popat (Accused No. 39) went to him
and invited him for drinking liquor. Ramdas turned
down the offer and on that count Popat purportedly
abused him in filthy language in the name of his
caste. There was some exchange of words between the
two and Popat allegedly took an axe from behind and
gave its blow on the forehead of Ramdas resulting into
injuries. At that time other accused namely
Chandrabhan Ramkrishna (Accused No.8), Dharmaraj
Narayan (accused No.5), Ashok Hiraman (accused No.19)
Prakash Kashinath (accused No.40), Raman Jagan
(Accused No.2), Sopan Jagan (accused No.44) and
Pandharinath Namdeo (accused No.37) also allegedly
assaulted Ramdas with sticks and iron-rods and abused
by saying “Mahar Majale, Yana Marun Takayeche Aahye,
Sodayeche Nahi” []
Ramdas allegedly sustained bleeding injuries and he
ran to his brother Ratan to the Rajwada area. He
narrated the whole incident to Ratan and also informed
him that the Accused persons alongwith a mob of about
40 others had threatened him to beat and they were
coming towards the Rajwada area. Ratan advised Ramdas
to report the incident to the police and, therefore,
Ramdas left for Jalgaon. On his complaint Criminal
Case No. 136 of 1987 came tobe registered. The
police also advised him to get treatment in the
hospital and he was accordingly admitted.
The third and main limb of the prosecution
case commences around 7.30 p.m. It is alleged that
Ramdas was chased and followed by a mob of about 40
persons which went to the Rajwada/ Budhhawada
locality, armed with sticks, iron-bars, axe and a fire
torch (Mashal). Ratan, the complainant, went out of
his house and asked the members of the mob not to
enter the Budhhawada area or to cause any damage to
the houses or property of the residents. He tried to
persuade and pacify the mob but his pleas went
unheeded. The mob started pelting stones at the
houses of the Dalits and Ratan also received injuries
in the same. He, therefore, ran towards his house and
he had hidden himself in the house of one Trimbak
Sandu Sapkale. His brother Shamrao (deceased) was at
that time in the adjoining house of one Shamrao S/o
Waman. It is alleged that the mob started pelting
stones and setting the houses on fire in the
Budhhawada. A group of persons noticed Shamrao in the
house of Shamrao Waman and assaulted him, dragged him
in the injured conditions to the fire wood stack.
After beating him mercilessly Shamrao (deceased) was
thrown on the fire wood stack which was lit by some of
the accused and as a result Shamrao was burnt alive.
The mob fury did not stop there alone and it went on
rampage and continued to set the houses on fire and
cause damages to the household articles in the
Budhhawada area. This was between 8.00 and 9.00 p.m.
and it appears that the Police Patil of the village
informed the police station. The police arrived at
the scene around 9.15 p.m. and also some fire
extinguishers were also pressed in service. The fire
was extinguished. Twenty six houses were completely
burnt, number of houses suffered partial damage and
some of the injured persons were taken to hospital in
the police vehicle. They were examined by Dr.
Gujarati (PW10) and these injured persons were
Janabai, Kalabai (PW13), Sarubai, Sakhubai, Ashabai,
Ratan (PW5), Pratibha, Sumanbai, Vijayabai and Bhaiya
etc. Dr. Gujarati conducted postmortem on the dead
body of Shamrao S/o Paulad and noticed that the body
was extensively and deeply burnt (100%). He issued
postmortem report (Exhibit-131). On the next day, Dr.
Arun Patil (PW11) had examined Accused Sopan
Jagannath, Ramdas (PW6), Raghunath Nannaware, Yeshwant
Sapkale, Ashok Sarawade, Popat Hari (Accused No. 39)
and issued injury reports at Exhibit-133.
5. Ratan (PW5) filed complaint (Exhibit 121)
which was treated tobe an F.I.R. purportedly at about
4.30 a.m. on 3rd August, 1987. There is a
controversy regarding the timing of this F.I.R. and
it is contended that it was filed in the afternoon on
3rd August, 1987 after cremating the dead body of
Shamrao. On this complaint, Crime No. 92 of 1987
came to be registered by the Taluka Police Station at
Jalgaon and investigation was undertaken by P.S.I.
Wadage (PW14). He visited the place of occurrence on
3rd August, 1987 and drew spot Panchanama
(Exhibit-145) and so also the inquest Panchanama of
the body of the deceased (Exhibit-106). He recorded
statements of witnesses during the period from 3rd
August, 1987 to 10th August, 1987. On 9th September,
1987 he had seized wrist watch produced by the
complainant and found in his house damaged by fire.
The said watch had the name of Namdeo Bhaurao engraved
on it. During the course of investigation
bloodstained clothes were seized and sent for chemical
analysis and the C.A. reports were received at
Exhibits-146 to 151. Dy.S.P. Shri Pawar (PW15) had
visited Civil Hospital, Jalgaon on 4th August, 1987
and had seized the clothes of the injured persons
under Panchanama Exhibit-155. The investigation was
subsequently handed over to Shri Chautha, Police
Inspector (PW18) from 11th September, 1987 to 14th
November, 1987. He recorded supplementary statement
of Ratan (PW5) on 16th September, 1987. The
investigation was then transferred to C.I.D. and Shri
Jadhav, Dy.S.P. (PW16) was incharge of the
investigation. He recorded supplementary statements
of Ramdas (PW6) as well as Ratan, Sumanbai, Kalabai,
Ashabai and others on 18th November, 1987. The map of
the place of the occurrence was drawn (Exhibit-136) on
13th November, 1987 and on completion of the
investigation Shri Jadhav (PW16) submitted the charge
sheet in the Court of Judicial Magistrate, First Class
at Jalgaon on 17th November, 1988. The learned
Judicial Magistrate, First Class, 2nd Court, Jalgaon
committed the case to the Court of Sessions vide his
order dated 14th February, 1989.
6. Charge was framed and was read over to all the
62 Accused who pleaded not guilty and their plea was
recorded over a period of time. In all 20 witnesses
were examined by the prosecution and the defence of
the accused was of total denial even in their
statement recorded under section 313 of the Criminal
Procedure Code. Most of them claimed that they were
falsely implicated. The defence of Accused Nos. 19
and 39 was that of alibi and others had claimed false
involvement on account of enmity. PW1 to PW4 were
Pancha witnesses i.e. Exhibit-111 to 113 and 117.
The prosecution claims that there were eye-witnesses
to the incidence involved in this appeal namely
unlawful assembly, murder of Shamrao, setting on fire
26 houses and damaging the household articles and
other property in the Budhhawada area between about
7.00 to 9.30 p.m. on the fateful day and they were
Ratan (PW5), Ramdas (PW6), Rukminbai (PW7), Ashok
(PW8), Gaba Sapkale (PW9), and Kalabai Tayade (PW13).
Dr. Gujarati (PW10) was examined, who had conducted
the postmortem on the dead body of Shamrao Paulad as
well as the injured residents of the Budhhawada, some
of whom were witnesses before the trial Court. Dr.
Arun Patil (PW11) was examined as he had examined
Sopan Jagannath Patil (accused No.44), Ramdas Paulad
(PW6), Raghunath Yadav Nannaware, Yeshwant Paulad,
Ratan Paulad (PW5), Ashok Atmaram Sarwade (PW8), Popat
Haribhau Patil (Accused No. 39) in the night of 2nd
August, 1987 and in the early hours of 3rd August,
1987. Circle Officer Bhausar (PW12) had drawn the map
of the spot. Shri Wadage (PW14) was examined as one
of the investigation officers alongwith Shri Pawar,
Dy.S.P. (PW15), Shri Jadhav, Dy.S.P. (PW16) from
C.I.D., Soma Sapkale (PW17) a Pancha to the Spot
Panchanama (Exhibit-160), Chauthe (PW18), Patil,
A.P.I. (PW19) and Rabdia (PW12) all Investigating
Officers. Besides the evidence of these 20 witnesses
the prosecution also relied upon the documentary
evidence viz. inquest Panchanama (Exhibit-107) caste
certificate (Exhibit-108), Panchanama of seizure of
Board (Exhibit-114) and seizure Panchanama of Wrist
Watch – Ricoh (Exhibit-118), the map of place of
offence (Exhibit-136), Postmortem notes (Exhibit-131),
injury report (Exhibits-129, 130 and 133), Panchanama
with respect to the houses damaged by the fire
(Exhibit-145), C.A. report (Exhibit-146 to 151),
Panchanama about seizure of clothes of injured persons
(Exhibit-155). Some of the accused submitted
documents in support of their statement recorded under
section 313 of the Criminal Procedure Code. Statement
under section 313 of Criminal Procedure Code was
recorded only of Accused Nos. 1 to 3, 5 to 6, 8 to
10, 12 to 13, 17 to 20, 24, 28 to 32, 34, 36 to 40 and
44 to 45. Initially, Criminal Case No. 136 of 1987
was merged for its trial alongwith Sessions Case No.
32 of 1989. However, on a specific application moved
after closing the evidence by the prosecution the
trial of Criminal Case No. 136 of 1987 was demerged.
7. The following points were framed by the trial
Court in para 16 of its judgment for consideration.
1) Whether it is proved that, on 2.8.87 around
6-30 p.m. at Avhane all accused formed an
unlawful assembly alongwith deceased accused
Nos. 7 and 56 armed with deadly weapons like
stick, iron rods, burning torch in prosecution
of its common object to commit offence under
section 302, 436, 323, 504, 506 of the Indian
Penal Code?
2) Whether it is proved that, deceased Shamrao
Paulad died homicidal death on 2.8.1987?
3) Whether it is proved that, homicidal death of
Shamrao Paulad was caused by members of said
unlawful assembly in prosecution of its
common object by setting him on fire on heap
of firewood stack?
4) Whether it is proved that, all accused as
member of said unlawful assembly in
prosecution of its common object caused
mischief by fire to about 26 houses in
Harijanwada locality of Awhane?
5) Whether it is proved that, all accused
voluntarily caused hurt to the witnesses in
prosecution of common object of said unlawful
assembly?
6) Whether it is proved that, all accused as
members of said unlawful assembly in
prosecution of its common object abused
complainant and witnesses insulting and
causing them to commit breach of peace?
7) Whether it is proved that, all accused as
members of said unlawful assembly in
prosecution of its common object threatened
complainant and witnesses causing apprehension
of injury or danger to their life?
8) Whether it is proved that, all accused as
members of said unlawful assembly in
prosecution of its common object abused
complainant and other witnesses in insulting
language in the name of their caste?
9) Whether prosecution proved offences under
Section 147, 138, 149, 302, 436, 323, 504, and
506 read with section 147, 148, 149 of the
Indian Penal Code and offence under Section 7(1)(d) of the Protection of Civil Rights Act,
read with Section 147, 148 and 149 of the
Indian Penal Code?
The findings against each point were recorded as
under:
Point No.1:- Proved against Accused.
Point No.2:- In affirmative.
Point No.3:- Proved against accused Nos. 1,
2, 5, 8, 28, and 40.
Point No.4:- Proved against accused Nos. 1,
2, 5, 8, 28, and 40.
Point No.5:- Proved against accused Nos.
1, 2, 5, 8, 28 and 40.
Point No.6:- Proved against accused Nos. 1,
2, 5, 8, 28 and 40.
Point No.7:- Proved against accused Nos.
1, 2, 5, 8, 28, and 40.
Point No.8:- Proved against accused Nos. 1,
2, 5, 8, 28, and 40.
Point No.9:- Offence under section 147,
148, 149, 302, 436, 323, 504,
and 506 read with Section 149
of the Indian Penal Code has
been proved against accused
Nos. 1, 2, 5, 8, 28, and 40.
8. It was fairly conceded by the learned counsel
for the Appellants before us as well as by the
prosecutor that the prosecution case is based on the
evidence of Ratan (PW5), Ramdas (PW6), Rukminbai
(PW7), Ashok (PW8), Gaba Sapkale (PW9), Kalabai Tayede
(PW13), who were alleged to be the eye witnesses and
the medical evidence of Dr. Gujarati (PW10) and Dr.
Arun Patil (PW11). It is also conceded by the learned
counsel for the Appellants that Shamrao S/o Paulad
Sapkale died a homicidal death in the night of 2nd
August, 1987 on account of burn injuries, which were
antemortem.
9. While considering Criminal Appeal No. 96 of
1996 we are only required to decide whether the
testimony of the above named witnesses has proved,
beyond reasonable doubt, the complicity of these six
Appellants in the offences they have been convicted
and hence sentenced by the trial Court.
10. Regarding the timings of filing FIR
(Exhibit-121) by Ratan (PW5) there is a serious
contradiction in his deposition as well as the
Investigating Officer Shripat Wadaje (PW14) who stated
that on 3rd August, 1987 he received the complaint
filed by Ratan Sapkale at about 3.30 a.m. and he
confirmed that complaint to be the FIR (Exhibit-121)
before the Court and the same was written by him as
per the say of the complainant. It was read over to
the complainant and he signed the same. Offence
bearing CR No. 92 of 1987 was accordingly registered
under the signature of PSO and he had only signed on
the report as it was recorded in his presence.
However, Ratan had stated that as soon as the police
came at the spot in the night of 2nd August, 1987 the
complaint was recorded whereas in his testimony before
the Court Ratan stated that his complaint was recorded
by the police in the evening on 3rd August, 1987 and
it was not recorded at the spot of incidence. In a
case of this nature, which had a colour of communal
riot, it would not be safe for us to consider these
contradictions in the evidence. There is no denial
that Ratan had lodged a complaint on 3rd August, 1987
with the Taluka Police Station at Jalgaon and Shri
Wadaje (PW14) was the first investigating officer
responsible for the investigation. A number of houses
of Dalits were completely burnt and the house of Udhav
and Shamrao (the deceased), which were located in the
plot area, were also set on fire. In some other
houses, household articles were either damaged or set
on fire and houses were partly burnt. Shamrao S/o
Paulad Sapkale, the brother of Complainant, was done
to death by some members of the mob which had entered
the Budhhawada area at about 7.30 p.m. on 2nd August,
1987. We will have to, therefore, consider the
testimony of the so called eye witnesses and also the
medical evidence keeping in mind these admitted
circumstances and the incidents while deciding the
complicity of the Appellants/ Accused in the said acts
of crime.
11. At the threshold the learned counsel for the
Appellants submitted that the FIR lodged by Ratan
(PW5) suffered from inordinate delay and the statement
of the investigating officer that it was lodged in the
early hours of 3rd August, 1987 cannot be corroborated
or accepted in view of the testimony of Ratan (PW5).
Reliance was placed on the decision of the Supreme
Court in the case of “Meharaj Singh (L/Nk.) V/s State
of U.P.” [1994 SCC (Criminal) 1390] to point out that
FIR in a murder case is a vital and valuable piece of
evidence for its appreciation at the trial and the
object of insisting upon prompt lodging of the FIR is
to obtain the earliest information regarding the
circumstances in which the crime was committed,
including the names of the actual culprits and the
parts played by them, the weapons, any, used, as also
the names of the eye-witnesses, if any. Delay in
lodging the FIR often results in embellishment, which
is a creature of an afterthought. On account of such
delays the FIR not only gets the bereft of the
advantage of spontaneity, danger also creeps in of the
introduction of a coloured version or exaggerated
story. It was further submitted that the complaint or
the report lodged by Ratan could not be treated as an
FIR and it could be treated only as a statement
recorded in accordance with section 161(3) of the
Criminal Procedure Code. The statements made therein
are required tobe supported by corroborative evidence
and if the same is not done it is required tobe
excluded from the consideration of the Court. In
support of these submissions, the decision in the case
of “Ranbir Yadav V/s State of Bihar” [1995 Criminal
Law Journal 2665] has been cited. Referring to the
statements made during investigations, by the
witnesses, whose evidence has been relied upon by the
trial Court, it is submitted that they are the
earliest statements made by them with reference to the
facts of occurrence and, therefore, are available
material for testing the veracity of the witnesses
examined before the Court with particular reference to
those statements which happened tobe at variance with
their earlier statements. It is alleged that an
improved story has been brought out through the
evidence recorded before the Court and the names of
the Accused/ Appellants, which did not find place in
the statements made before the investigating officer,
have been added while deposing before the Court.
Referring to the decision of the Supreme Court in the
case of “Baladin and others V/s State of Uttar
Pradesh” it was submitted by the
learned counsel that the Accused are entitled to
challenge the testimony of these witnesses and the
improvisation so made before the Court could not be
relied upon. So far as the issue of unlawful assembly
is concerned, the Appellants urged before us that mere
presence of a person does not make him a member of
such an assembly unless it is shown that he had done
something or omitted to do something which would make
him a member of unlawful assembly. In the case of
some of the Appellants/ Accused only mere presence in
the mob on the fateful day in Budhhawada area has come
out through the testimony of the witnesses concerned
and no acts of doing something or omitting to do
something have been proved before the trial Court. In
support of these submissions also the decision in the
case of Baladin (supra) has been referred to.
Though, a number of persons were interrogated
and their statements were recorded during the course
of investigation under section 161 of the Criminal
Procedure Code, a selected few were picked and put up
in the witness box. This omission on the part of the
prosecution is also required to be considered by the
Appellate Court in weighing the testimony of the
witnesses examined in support of the prosecution case.
When there is an incidence of free fight between two
groups or in the case of group rivalries there is a
general tendency to rope-in as many persons as
possible accusing them to have participated in an
assault and, therefore, the Court is required to
scrutinise the evidence carefully and should there be
any doubt in such testimony benefit should be given to
the Accused [Baldeo Singh and others V/s State of
Bihar”(AIR 1972 SC 464)]. Where a sudden quarrel
arises as a result of remonstrance and counter
remonstrance and an unpremeditated free fight takes
place it cannot be said that the Accused, who were
present there, formed an unlawful assembly. The
counsel further urged that each of the Accused persons
should be held liable for his own act and not
vicariously liable for the acts of others [Lalji and
others V/s The State of U.P.” (].
While challenging the reliability of the oral
evidence recorded before the trial Court it is
submitted by the Accused/ Appellants that majority of
the so called witnesses are interested persons as they
are closely related and they have made the substantial
improvements over these statements which they made
during the course of investigation and as recorded
under section 161 of the Criminal Procedure Code.
Such a testimony is required to be discarded as
unreliable. In support of these submissions reliance
has been placed on the decision of the Apex Court in
the case of [Badruddin Rukonddim Karpude and others
V/s State of Maharashtra”].
On the issue of the homicidal death of Shamrao
the evidence on record showed that some of the
Accused/ Appellants were involved in merely dragging
him and being a part to such an incident alone is not
sufficient for conviction for an offence punishable
under Section 302 of the Indian Penal Code. In
support of these contentions the learned counsel
referred to the decision of the Supreme Court in the
case of “Naresh Kumar V/s The State of Maharashtra”
and submitted that the accused
concerned cannot be held to have committed the murder
of Shamrao.
12. In the case of “Maslati and etc. etc. V/s
State of Uttar Pradesh” a four Judge
Bench of the Apex Court, inter alia, held:
(a) It is undoubtedly the duty of the prosecution
to lay before the Court all material evidence
available to it which is necessary for
unfolding its case; but it would be unsound to
lay down as a general rule that every witness
must be examined even though his evidence may
not be very material and even if it is known
that he has been won over or terrorized.
(b) There is no doubt that when a criminal Court
has to appreciate evidence given by witnesses
who are partisan or interested, it has tobe
very careful in weighing such evidence. But
it would be unreasonable to contend that
evidence given by such witnesses should be
discarded only on the ground that they are
interested or partisan witnesses.
(c) Where a crowd of assailants who are members of
an unlawful assembly proceeds to commit an
offence of murder in pursuance of the common
object of the unlawful assembly, it is often
not possible for the witness to describe
accurately the part played by each one of the
assailants. Besides, if a large crowd of
persons armed with the weapons assaults the
intended victims, it may not be necessary that
all of them have to take part in the actual
assault.
(d) Though it is true that the trustworthy
evidence of a single witness would be enough
to convict an accused and evidence given by
half a dozen witnesses, which is
untrustworthy, would not be enough to sustain
the conviction, where a criminal Court has to
deal with evidence pertaining to the
commission of an offence involving a large
number of offenders and a large 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.
Such a test may be described as mechanical but
it cannot be treated an irrational or
unreasonable.
(e) What has tobe proved against a person who is
alleged tobe a member of an unlawful assembly
is that he was one of the persons constituting
the assembly and he entertained along with the
other members of the assembly the common
object as defined by section 141 of the Indian
Penal Code. If an offence is committed by any
member of an unlawful assembly in prosecution
of the common object of that assembly or such
as the members of that assembly knew tobe
likely tobe committed in prosecution of that
object, every person who, at the time of the
committing of that offence, is a member of the
same assembly, is guilty of that offence and
that emphatically brings out the principle
that the punishment prescribed by section 149
of the Indian Penal Code is in a sense
vicarious and does not proceeds on the basis
that the offence has been actually committed
by every member of the unlawful assembly.
13. In the case of “Kutumbaka Krishna Mohanrao and
others V/s Public Prosecutor, High Court of A.P. and
another” there was a large scale
rioting that had taken place in a village and two
persons died and several witnesses belonging to the
deceased party had received injuries. 43 persons were
put on trial before the Sessions Court and some of
them were convicted. One of the issues involved was
regarding the reliance tobe placed on the evidence of
the injured witnesses in respect of their own
assailants and in para 5 it was stated, thus:
“… We have examined the reasons given by
the High Court accepting the evidence of
these witnesses to the extent of their own
assailants and we see no reason to disagree
with the same. In a case of this nature,
the Court generally has to fix the presence
of an unlawful assemble, would first
scrutinise the evidence of injured witness
and if the same is corroborated by the
medical evidence that can be accepted as
against those accuse who caused injuries and
they can be held to be members of the
unlawful assembly. This is on the ground
that the witnesses at least, would be in a
position to identify their own assailants.
… …”
In the case of “Angad V/s State of Maharashtra”
it has been, inter alia, held that
the testimony of eye-witnesses cannot be rejected only
on the ground that they did not intervene to rescue the
deceased. This principle could be made applicable more
soundly to a case where the deceased became a victim of
a mob attack which smacked of a communal attack by a
higher caste on the Harijans. We are not dealing with
a case of a free fight between two groups and the case
at hand has a colour of the communal riot resulting
into an attack on the Dalits and their property. We
are, therefore, required to assess the evidence, as
brought out by the prosecution on the touchstone of the
enunciations, as referred to hereinabove, and keeping
in mind the admitted incidence of the attack on the
Dalit Vasti by a mob of 100-150 persons which has
resulted into the murder of an innocent disabled Dalit
and full damage to about 26 houses, part damage to some
other houses and loss of household articles as well as
other belongings, in addition to physical injuries to
some of the residents of that Vasti. The mental trauma
and physical insecurity suffered by these socially and
economically disadvantaged persons can not be measured
in any units.
14. Yuvraj Ramchandra Nannaware (PW1) and Baban Yadav
Sapkale (PW2) turned hostile and they stated nothing in
favour of the prosecution case. Magan Suka Awachite
(PW3) was examined in support of the Panchanama for
recovery of a tin-board from the toilet near the
S.T.Stand at village Avhane (Exhibit 114) and the said
board was stated to have been displayed in the Rjwada
area. The inscription on the said board was “Dalit
Mukti Sena Gram Shakha, Avhane”. Devidas Yadav
Nannaware (PW4) was a Pancha witness to prove the
seizure Panchanama of a Ricoh brand wrist watch from
the house of Ratan Sapkale and the name of Shri Namdeo
Baburao Patil (Accused No.32) was inscribed on that
watch. In his testimony he proved the same Panchanama
drawn on 9th September, 1987 (Exhibit – 118).
Bhausar (PW12) has drawn a map of the place of
occurence (Exhibit-136) immediately after the incident.
The said map was not disputed by the defence. In
addition, the maps at Exhibits-122, 136 and 137 have
been admitted. The depositions of PW14 to PW20 did not
relate to the incident about atrocities on the Harijans
in the Budhhawada area alleged to have been committed
by the unlawful assembly of the accused and hence the
same need not be considered by us. Exhibits-129, 130
and 133 are the medical certificates issued by PW10 and
PW11.
On the complaint filed by Ramdas (PW6) Criminal
case No. 136 of 1987 came to be filed and it was
demerged from Sessions Case No. 32 of 1989. The
testimony of the complainant (PW5) and Ramdas (PW6)
read tegether clearly goes to show that after the
scuffle between him an Popat Hari had taken place near
his house, Ramdas rushed to the Budhhawada area and
told the incident to Ratan at about 7.00 p.m. and,
thereafter, on the advise of Ratan he left for Jalgaon
to file a complaint. The testimony of this witness
(PW6), therefore, has no relevance for the occurence in
the Budhhawada/ Rajwada area after 7.00 p.m. and
before 9.00 p.m.
Exhibit-129, Exhibit-130 and Exhibit-133 are
the medical certificates issued by PW10 and PW11. The
first certificate (Exhibit-129) shows that Kalabai
Bhimrao Tayade (PW13) was examined and she had received
three injuries and they were attributed to hard, blunt
and rough substance. All the three injuries were of
simple nature. Alongwith her Smt.Janabai, Smt.
Sarubai and Smt. Sakhubai W/o Ratan were also examined
and they were found to have suffered injuries by hard
and blunt substance. The medical certificate at
Exhibit-130 shows that Asha Ratan Sapkale, the daughter
of complainant (PW5), alongwith other six persons was
examined and all of them had received simple injuries
which were attributed to hard and blunt substance. All
the injuries were noticed tobe fresh. Medical
certificate at Exhibit-133 shows that out of the
accused persons Sopan Jagannath Patil (accused No.44),
Popat Haribhau Patil (accused No.39) had also received
injuries by hard and blunt substance. Popat Haribhau
Patil (accused No.39) was admitted in the hospital and
similar was the case regarding injuries sustained by
Ramdas Paulad (PW6). Ashok Atmaram Sarwade (PW8) had
received two injuries of simple nature and he was shown
as outpatient. The age of the injuries was within 24
hours. In the depositions of PW11 it has been stated
that accused Sopan Jagannath Patil (accused No. 44)
had sustained contused lacerated wound on scalp at the
junction of both parital region (2cm X 1/4 cm scalp
deep). Complainant Ratan (PW5) was examined at 4.50
a.m. on 3rd August, 1987 and the injuries noticed on
his person were contused lacerated wound on right
mastoid region (1/2cm X 1/2 cm skin deep) and abrasion
on right shoulder (2cm X 2 cm). The injuries were
simple in nature, within 24 hours and cause of injury
was by hard and blunt object. Ratan (PW5), Ashok (PW8)
and Kalabai (PW13) are the injured witnesses. Nandlal
Ganpat Bhausar, Circle Officer (PW12) had drawn the map
(Exhibit-136) on 3rd August, 1987 at the request of the
police. He had also drawn another man (Exhibit-122) of
the place of incident on 7th December, 1995. He also
confirmed the map at Exhibit-137. The map at
Exhibit-136 has given the description of the village as
well as the two different Harijan localities i.e. plot
area and Budhhawada. It has identified the houses
which are completely burnt and the houses which were
partly burnt. It also showed the location of the fire
stack on which the deceased was thrown and burnt.
There are some houses which were fully burnt and were
located around the fire stack but there were other
houses away from the place of the said occurrence and
obviously they were set on fire. The house of deceased
as well as Ramdas Paulad, Udhav Raghav Sapkale and
Ratan were also set on fire and were completely burnt.
The houses of the upper caste Hindus are located at a
distance from the Harijan locality and they are
separated by roads. The distance between the house of
Shamrao Waman from where the deceased was dragged and
the place where his dead body was lying is about 100.
The discovery of Ricoh wrist watch from the house of
the complainant has been proved and the said watch
belonged to Namdeo Baburao (accused No.32). By the
time the fire extinguishers arrived at the scene and
followed by the police van the mob (unlawful assembly)
had dispersed.
16. Ratan Paulad Sapkale (PW5) – the complainant,
stated in his depositions that he had six other
brothers and two brothers by name Ramdas and Shamrao
(deceased) were residing in the plot area locality
whereas the remaining four brothers and himself were
staying in the Rajwada/ Budhhawada locality. On the
day of incidence he was in his house and his brother
Ramdas (PW6) came to him between 7.00 to 7.30 p.m.
and disclosed that Popat Hari had inflicted axe blow
on Ramdass forehead who was beaten up by Namdeo Hari
and Shivaji Hari (accused No.1) with a stick. Ramdas
also told him that Sopan Jagannath (accused No.44) and
Raman Jagannath (Accused No.2) had also beaten him and
threatened that the houses of Budhha citizens would be
burnt. He also told Ratan that he also may be beaten.
Ratan, therefore, advised Ramdas to report the
incident to Jalgaon police and, therefore, he left for
Jalgaon and at that time Ramdas had bleeding injury.
Thereafter, Popat Hari Patil (Accused No.39),
Dharmaraj Narayan Shinde (accused No.5), Namdeo
Pundalik Patil (accused No.10), Pandharinath Kautik
Patil, Raman Jagannath Patil (accused No.2),
Chandrabhan Ramkrishna Chaudhari (accused No.8),
Vasudeo Mohan (Accused No.13) and some other persons,
armed with sticks, came to the Budhhawada locality and
Vasudeo Mohan was holding a fire torch in his hands.
He requested these persons not to enter the Budhhawada
area or set on fire the houses but they did not pay any
heed to his appeals. They started pelting stones and
were giving slogans “Jai Shivaji, Jai Bhavani”. They
were also saying Mahars have become unruly and their
houses should be burnt. One stone hit Ratan near his
right ear and, therefore, he got frithened and returned
towards his house. When he was running towards his
house he looked behind and found Kamlakar Chandrabhan
Chaudhri, Vasudeo Mohan, Jankiram Pandharinath set fire
to the houses of Sukhadeo Sadashiv Sapkale, Godawaribai
Jotiram Sapkale. At that time instead of entering his
house Ratan entered in the house of Trimbak Sandu
Sapkale to hide himself and he heard the noise from the
mob saying, “Mahars be burnt”, “first house of Ratan
should be burnt”. His brother Shamrao Paulad Sapkale
(deceased) was in the house of Shamrao Waman Sapkale in
the Budhhawada area and adjacent to the house of
Trimbak Sapkale where Ratan was hiding. Namdeo
Pandurang, Prakash Kashinath (accused No.40), Sukhadeo
Sadashiv (accused No.7), dragged Shamrao Paulad from
the house of Ramrao Sakpale. Pandharinath Kautik
(accused No.10), Namdeo Pundalik (accused No.20),
Sukhadevo Sadashiv (accused No.7), Prakash Kashinath
(accused No.10), Shivaji Hari (accused No.1), Vasudeo
Mohan (accused No.13), Chandrabhan Ramkrishna Chaudhari
(accused No.8) started beating Shamrao Paulad and at
that time Chandrabhan Ramkrishna Chaudhari (accused
No.8) and Popat Hari Patil (accused No.39) were saying
“Shamrao Paulad Sapkale should be burnt”. There was
fire wood lying by the side of house of Sadhashiv
Baburao Sapkale. Vasudeo Mohan (accused No.13),
Prakash Kashinath Patil (accused No.40, Jankiram
Pandharinath (accused No.28) set the firewood stack on
fire. Thereafter, Shivaji Hari, Namdeo Pundalik,
Pandharinath Kautik, Raman Jagannath, Dharmaraj Narayan
Shinde, Chandrabhan Ramkrishna Chaudhari lifted Shamrao
Paulad and threw him on the burning stack. Ratan could
hear Shamraos cries when he was thrown in the fire.
All those persons, who had assaulted Shamrao, dragged
him towards the fire wood and threw him on the fire.
Raman (accused No. 2) was at that place for about half
an hour. Shamrao was burnt and dead there only. He
noticed the said incident through the door of Trimbak
Sapkale. Police came to the spot. He narratted the
incident to them and it was recorded as per his say.
He confirmed the F.I.R. (Exhibit-21). He also
identified Popat Hari Patil, Vasudeo Mohan Patil,
Namdeo Patil, Dharmaraj Narayan Shinde, Shivaji
Haribhau Patil, Prakash Kashinath Patil, Jankiram
Pandharinath Patil (accused No. 28) before the Court
as the persons engaged in the incident of murder of
Shamrao and setting some houses on fire by entering
into the Budhhawada area as members of the mob.
He was member of the Village Panchayat and had
studied upto 8th standard. He was knowing all the
residents of Budhhawada as well as the plot area with
their full names. He stated that Shiv Sena Branch was
established in his village around the year 1984-85 and
stated there were no communal riots prior to the date
of incident though there were strained relations
between Harijans and caste Hindus. He new Prakash
alias Batkya (accused No.40) and in 1987 he was
dealing in illicit liquor. His liquor shop was known
as “Prakashchi Tapari”. He was not knowing as to who
had given information to the police regarding the
riots at Avhane in the fateful night. He admitted
that the police van and fire-brigade vehicle came from
Jalgaon to Avhane village after Ramdas had left for
Jalgaon and the police had taken him to Jalgaon
hospital in metador alongwith injured Ashok Atmaram
Sarwade (PW8) [reached at about 10.00 p.m.]. Before
the arrival of police, he, Ashok Surwade, sister
Janabai and daughter Kalabai and wife of his
brother-in-law Rahul Sonawane as well as Hirabai
Yuvraj Nannaware were injured by the attack unleashed
on the residents of Budhhawada area by the mob. He
did not know whether Popat Hari, Sopan Jagannath
Patil, Ramdas Paulad, Raghunath Yadav Nannaware and
Yeshwant Paulad were admitted in the hospital by
police before he was admitted. He denied the
suggestion that he was admitted in Jalgaon hospital at
4.30 a.m. on 3rd August, 1987. He also admitted that
his supplementary statement was recorded by the police
on 16th September, 1987 as well as 17th November,
1987. He was in the hospital for fifteen to twenty
minutes till the dressing was completed. Map
submitted by the investigating officer (Exhibit-122)
was shown to him regarding the locations of various
houses in the Budhhawada as well as plot area. He
denied the suggestion that he and other Harijan
citizens from Rajwada area were angry against caste
Hindus on account of the resolution passed on 29th
July, 1987 for employing a Gorkha from Rajasthan for
protection of the crops and he had no quarrel with
Popat Hari Patil on account of abuses or beating to
Udhav Raghav Sapkale.
Before arrival of the police on 2nd August,
1987 House Nos. 26, 27, 28, 37, 40 and 51 were set on
fire and he did not see persons who set fire to other
houses. He did not see Godabai or Sukhadeo injured by
fire or beating though they were in their respective
houses. While he was hiding in the house of Trimbak he
had switched off the lights in that room only and
Trimbak Sandu was not in his house. He denied the
suggestion that he had told Harijans from the
Budhhawada area to leave their houses as caste Hindus
would not show mercy on them and that he had ran away
from the Rajwada area locaity. He could not report
about the occurrence since he was taken to Jalgaon
hospital and on the next day his deceased brother
Shamrao was tobe cremated. He reported the incident to
the police on 3rd August, 1987 only after Shamrao was
cremated and Panchanamas of burnt houses were drawn.
In the morning of 3rd August, 1987 he had told the
police that on account of the death of his brother he
was upset and he would lodge the report in the evening
and the police did not ask his other two brothers
Ramdas and Vasant to lodge the report in his presence.
He confirmed the FIR (Exhibit-121) recorded as per his
statements. In his cross examination he stated that he
had told the police that accused Vasudeo Mohan Patil
was holding the burning torch, accused Kamlakar
Chandrabhan, Vasudev Mohan and Jankiram Pandharinath
set fire to the house of Sukhadeo Sadashiv and Godabai,
accused Namdeo Pundalik, Prakash Kashinath and Sukhadeo
Sadashiv dragged his brother Shamrao (deceased) and
accused Chandrabhan, Popat Hari were telling other
persons in the mob that Shamrao Paulad be set on fire,
accused Vasudeo Mohan, Prakash Kashinath and Jankiram
threw Shamrao Paulad on fire and he did not know the
reasons why all these statements were not recorded by
the police in his report (Exhibit-121). He stated that
Namdeo Pundalik and Pundalik Namdev were two different
persons in village Avhane and Accused Namdeo Pundalik
was not the same person as Pundalik Namdeo. He
similarly identified Chandrabhan Ramkrishna Chaudhari
before the Court and denied that the said accused could
not walk properly as he had sustained fracture injury
in an accident in 1983-84. He also admitted that
Shamrao (deceased) had become crippled in an accident
in 1985-86 and he did not sustain fracture injuries on
account of the assault on him on 2nd August, 1987. He
also admitted that an organization by name Dalit
Panther was formed to attend to the problems of
Harijans in Avhane village. He specifically stated
that Pundalik Namdev was not present in the mob that
entered the Rajwada area. Initially a mob of 20 to 25
was coming towards Rajwada locality of Harijans and
though the mob was shouting there was no admosphere of
terror. However, within a hour or so more persons
joined and the mob turned violent and indulged in
beating and setting the houses on fire. He denied the
suggestion that Jankiram Pandharinath Patil (accused
No.28) was not present in the mob on 2nd August, 1987
that entered the Rajwada area as the said Jankiram was
working on a truck of Dagadu Kumbhar and was in the
MIDC area, Jalgaon till 10.00 p.m.
17. Shripad Pandurang Wadage (PW14) was the
Investigating Officer who had registered Crime No. 92
of 1987 on the basis of the report (Exhibit-121). He
had drawn inquest Panchanama of the dead body of
Shamrao Paulad Sapkale (Exhibit-106) by visting the
place of incident. He had also drawn spot Panchanama
as well as Panchanama of burnt houses (Exhibit-145).
Between 4th August, 1987 to 10th August, 1987 he had
recorded the statements of witnesses and had seized one
wrist watch on 9th September, 1987 in the house of
Ratan (PW5) on 24th December, 1987 he had received C.A.
report of seized clothes and on 14th November, 1987
investigation was handed over to CID. He admitted that
the complaint was received by him at 3.30 a.m. and he
had come to know that Ramdas Paulad was injured and was
admitted in the hospital. When complainant gave the
report (Exhibit-121) he was conscious and able to
understand and the report was recorded as per the
complainants say. Police reached Avhane around 9.50
p.m. whereas the fire brigade vehicle had reached the
said place at 9.00 p.m. The information about the
incident at Avhane was received by the Taluka Police
Station around 9.00 p.m. through Village Police Patil
Uttam Namdeo Patil on telephone and Police Patil had
informed on telephone that Popat Hari Patil was lying
unconscious near the Budhhawada area as he was beaten
by Harijans and further that he appeared likely tobe
dead. In the night of 2nd August, 1987 and during the
day time on 3rd August, 1987 workers of Dalit Panther
had come to Avhane village. The heap of fire wood on
which Shamrao was set on fire consisted of thorney
branches of Babul trees and stems of cotton crop and
the place of fire wood was surrounded by residential
house. He admitted that the name of accused Kashinath
Patil (accused No.40) was not reported to him as one of
assailants of the deceased, by Ratan (PW5).
18. Before we proceed to sift the evidence of these
material witnesses viz. PW5, PW7, PW8, PW9 and PW13
alongwith the evidence of (PW5) we deem it appropriate
to refer to a similar case which had come up for
consideration before a Division bench of this Court
i.e. “Sukhadeo and others V/s State of Maharashtra”
[1988 Mh.L.R. 1249]. Violance was unleashed by a mob
of about 40 persons belonging to majority the Wanjari
community at Antarwali village situated in Gangakhed
taluka of Parbhani district. The unfortunate victims
of the assault were three deceased brothers viz. Hari,
Govinda and Limba and their nephew Narayan all
belonging to minority Budhha community. The majority
community thought that some of the Budhha community
persons had brought notority to them and to the village
by leading a life of dacoits and, therefore, the
deceased and their family members, as well as their
associates, had left Antarwali village and shifted to
Malkhed in Ahmedpur taluka of Latur distribut but on
the fateful day i.e. on 4th June, 1982 they had
returned to the Antarweli village to meet some
relations. A mob of about 25 persons came to the house
of PW15 Manik raising slogans and hurling abuses. They
were armed with axes and sticks, to teach a lesson to
the four deceased and the other six injured witnesses
and to take revenge that they had returned to village
Antarweli even though they were instructed to leave the
said village in view of their deeds of dacoity. 40
persons were put on trial for offences punishable under
sections 147, 148, 452, 302, 307, 324, 506 (Part-II),
323, 452/149, 302/149, 324/149, 506 Part-II/149 and
307/149 of the Indian Penal Code. The trial Court
convicted eight accused and sentenced them to suffer
rigorous imprisonment for life, in addition to various
terms of sentences on other counts and others were
acquitted. This order was challenged by the convicts
in Criminal Appeal No.133 of 1983 whereas the State of
maharashtra preferred Criminal Appeal No. 177 of 1983
against the order of acquittal. While Criminal Appeal
No. 133 of 1983 was dismissed, Criminal Appeal No.
177 of 1983 was partly allowed and this Court convicted
other 10 accused and sentenced each one of them to
suffer imprisonment for life and other terms of
sentences on other counts. Aggrieved by the decision
of this Court, in both the Appeals, Criminal Appeal
Nos. 31 and 231 of 1989 and 53 of 1990 came to be
filed before the Apex Court i.e. “Sukhadeo V/s State
of Maharashtra” . The Supreme Court
noted that all the appellants were personally known to
the witnesses since they were the residents of the same
village and, therefore, mistaken identity of any of the
appellants was out of question. The injuries sustained
by the three deceased persons as reflected in the
postmortem examination reports clearly born out how the
three victims were mercilessly beaten by the police and
other members of the riotous mob and the Supreme Court
opined that the Courts below had rightly accepted the
evidence of the complainant Manik (PW15) as
trustworthy. The prosecution had examined in all 22
witnesses and it was contended by the defence that most
of the witnesses had made improvisement in their
evidence in the Court by implicating as many accused
persons as possible and, therefore, the evidence of
such witnesses ought to be discarded. It was further
contended that in view of the known animity between the
two communities it would be unsafe to sustain the
conviction on the basis of such evidence. As regards
the first contention, the Court observed that the
incident had taken place in the Harijan locality which
was situated few furlongs away from the village Abadi
and the Wanjari community as a united front had caused
the attack and, therefore, it would be futile to accept
that any person from the village would support the
cause of Harijans. In addition, the evidence of the
witnesses could not be discarded on the score that they
were closely related to the deceased persons and all
that was required in such cases was that the Court must
scrutinise the evidence of such witnesses with greater
caution. On the score of untrustworthy evidence on
account of improvisation the Apex Court accepted the
evidence of such of the eye-witnesses whose evidence
was free from omissions and contradictions and also
considered the accused being the members of the
unlawful assembly sharing a common object and in
pursuance thereof causing assault on four victims by
axes and sticks etc. and thereby committing their
murder and it did not suffer from any infirmity. In
addition to this evidence, there was also other
material on record in the form of recovery of certain
incriminating articles. This Court, while confirming
the order of conviction and partly allowing the appeal
on acquittal, had relied upon the decision in Maslatis
case (supra) and observed in para 36, thus:
“The law does not insist on plurality of
evidence. The evidence given by even a
single which is credible enough becomes the
foundation of a conviction. However, when a
large number of accused are involved in such
a riot case, and four persons kicked their
buckets as a result of murderous allault
made by the members of that unlawful
assembly, it is difficult to come to a
conclusion, particularly when the ocular
testimony which otherwise cannot be doubted,
has to be appreciated. On such occasions,
it sometimes become useful to adopt a
mechanical test. The Supreme Court has said
that although a test may be described as
mechanical, it cannot be treated as
irrational or unreasonable. It is no doubt
true that it is the quality of evidence that
matters, but where consistent evidence has
been given and the evidence cannot be
rejected so lightly, it is useful to adopt
the test and that the conviction could be
sustained only if it is supported by two or
more witnesses who give a consistent account
of the incidence. It has been our endeavour
to adopt this mechanical test whenever it is
useful and whenever we find that two or more
witnesses have given a story which is
broadly in conformity with the general
pattern of assault.”
The conviction as confirmed and recorded by
this Court, based on the above principles, has been
upheld by the Apex Court in the above said case.
Bearing this legal position in mind, we will have to
proceed to examine the evidence of the above stated
eye-witnesses and if two or more witnesses have
described an incidence which is broadly in conformity
with the general pattern of assault or a particular
act, we will have to accept the said testimony to bring
home the charge levelled against such accused as per
the law laid down by the Apex Court in the case of
Maslati and others (supra).
19. Dealing with the first ground that the FIR was
belated, we have noted that the FIR was registered on
the basis of the complaint of Paulad (PW5) only at
about 3.30 p.m. on 3rd August, 1987 and it was not
recorded at the spot of incidence in the wee hours of
the same day. The delay caused in lodging the
complaint has been explained by Ratan in his evidence
before the trial Court. He has clearly stated that
looking at the scene of offence and the fact that his
brother Shamrao was roasted alive and he himself was
worried of his security and the security of his family
members, he was not in a mentally fit condition to
lodge the report to the police and, therefore, he
lodged the report only after his deceased brothers
body was cremated. This explanation, given by the
complainant Ratan, deserves tobe accepted and it is a
most natural explanation furnished by him. The
witnesses are admittedly from the same locality and
some of them are closely related to each other. The
minor contradictions in the depositions of the
complainant, as compared to the statements made in the
FIR, do not vitiate the case of the prosecution and all
that is required to be done by the Appellate Court is
to scrutinise the evidence of the witnesses with care
and caution. While appreciating the evidence of these
witnesses, we have to also keep in mind that the rule
of “falsus in uno falsus in ominbus” is not applicable
in India “Deep Chand and others V/s State of Haryana”
and, therefore, the improvisations
made in certain fsrespects by the witnesses in their
testimony before the Court cannot lead to discarding
the entire evidence. If the remaining evidence is
trustworthy and substratum of the prosecution case
remains in-tact then the Court should uphold the
prosecution case to that extent. We have to examine
the evidence only in respect of the appellants before
us in Criminal Appeal No. 96 of 1996 and the six
respondents in Criminal Appeal No. 148 of 1996 so as
to find out whether two or more witnesses have
described the incidents or complicities of each of the
appellants in respect of the offences held to have been
established by the trial Court i.e. offences
punishable under section 147, 148, 302, 323, 436, 504,
506 read with section 149 of the Indian Penal Code.
20.Section 141 of the Indian Penal Code states
that an assembly of five or more persons is designated
an “unlawful assembly”, if the common object of the
persons composing that assembly is, inter alia, to
commit any mischief or criminal trespass or other
offence; or by means of criminal force, or show of
criminal force, to any person, to take or obtain
possession of a property, or to deprive any person of
the enjoyment of a right of way. The explanation to
the said section states that an assembly, which was not
unlawful when it assembled, may subsequently become an
unlawful assembly. As per section 142 whoever, being
aware of facts which render any assembly an unlawful
assembly, intentionally joins that assembly, or
continues in it, is said tobe a member of an unlawful
assembly. Section 143 provides with punishment to a
member of an unlawful assembly. Section 146 states
that whenever force or violence is used by an unlawful
assembly, or by any member thereof, in prosecution of
the common object of such assembly, every member of
such assembly is guilty of the offence of rioting and
punishment for the said offence has been provided under
section 147. Section 148 defines rioting, being armed
with deadly weapon. Section 149 states that if an
offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew
tobe likely tobe committed in prosecution of that
object, every person who, at the time of committing
that offence, is a member of the same assembly, is
guilty of that offence. This means that where a
criminal act is done by several persons in furtherance
of common intention of all, each of such person is
liable for that act in the same manner as if it was
done by him alone. The term “common object” is
different from the term “common intention”. In that it
does not require prior concern and a common meeting of
minds before the attack and an unlawful object can
develop after the people get there (at the spot of
incidence).
21. In his evidence, the Complainant (PW5) has
specifically attributed to each of the Appellants/
accused the culpability in the murder of his brother
Shamrao. He stated that Chandrabhan Ramkishan (accused
No.8), Pandharinath Kautik (accused No.10), Prakash
Kashinath Patil (accused No.40), Ashok Hiraman, Raman
Jagannath Patil (accused No.2), Gaulu Kashiram Patil
and Jankiram Pandharinath Patil (accused No.28) had
beaten Shamrao (deceased) by sticks. The same seven
accused had also taken Shamrao to the fire wood stack
and all of them kept him on the said stack.
Thereafter, Shivaji Hari Patil (accused No.1) poured
kerosene on the fire wood stack and Prakash Kashinath
Patil (accused No.40) lit the fire wood stack as a
result of which Shamrao was burnt alive and all those
persons were on the spot till Shamrao died. He had
identified all these persons before the Court.
Rukminbai (PW7) stated in her depositions that
while she was cooking meals in the Varandah of her
house she heard shouts of only five persons viz.
Pandharinath (accused No.10), Chandrabhan (accused
No.8), Batuk (accused No.40), Shivaji (accused No.1)
and Dharmaraj (accused No.5) and she did not see any
other person from the mob. As per her, they were
saying “Sale Dhedge Mahar Majale” and “Harijans should
not be allowed to live in the village”. They were
armed with stick and burning torch. They started
beating Shamrao (deceased) near the house of Sadashiv
Baburao and Shamrao was crying for help to save him.
Despite his cries these five persons continued beating
Shamrao and they kept Shamrao on the fire wood stack
near the house of Sadashiv. As per her, Shivaji
Haribhau (accused No.1) poured kerosene and Batuk
(accused No.40) set fire to the stack. Shamrao Paulad
Sapkale was burnt alive. The witness identified all
these five persons before the Court.
We have, thus, seen that the names of four
Appellants/ accused viz. Bhagwan alias Shivaji
Haribhau (accused No.1), Chandrabhan S/o Dharmaraj
Shinde (accused No.8), Ramkrishna Patil and Prakash
alias Batkya (accused No.40) have been confirmed in the
testimony of Ratan (PW5) and Rukminibai (PW7).
22. We then come to the evidence of Ashok (PW8) who
stated that he had returned to his house between 7.00
to 7.30 p.m. on the fateful day and while he was at
his house he heard the shouts of villagers “Mahar Dhed
Matle” and, therefore, he came out of the house. He
was standing in the door of his house and he saw
Chandrabhan Ramkrishna (accused No.8), Pandharinath
Kautik (accused No.10), Prakash Kashinath Patil
(accused No.40), Ashok Hiraman, Raman Jagannath Patil
(accused No.2), Gaulu Kashiram Patil, Jankiram
Pandharinath Patil (accused No.28) had beaten Shamrao
(deceased) by sticks near the house of Shamrao Waman.
There was fire wood stack at about 10-15 ft. distance
from the house of Shamrao Waman and Shamrao Paulad was
taken by seven persons and they kept Shamrao Paulad on
the fire wood stack. Thereafter, Shivaji (accused
No.1) poured kerosene on fire wood stack and Prakash
Kashinath Patil (accused No.40) lit fire to it. If
this testimony is read with the testimony of Ratan
(PW5) regarding the incidence of the death of Shamrao
it is clear that the witness has corroborated the
participation in the crime of Chandrabhan (accused
No.8), Prakash Kashinath (accused No.40), Raman
Jagannath Patil (accused No.2), Jankiram Pandharinath
(accused No.28) and Shivaji alias Bhagwan Bhaurao Patil
(accused No.1). The witness identified these eight
persons before the Court as the persons he had seen at
the time of incident.
From the testimony of this witness (PW8) read
with the testimony of Ratan (PW5) the culpability of
Shivaji Hari Patil (accused No.1), Raman Jagannath
(accused No.2), Chandrabhan (accused No.8), Jankiram
(accused No.28) and Prakash (accused No.40) is duly
proved. Out of the six appellants before us the name
of Dharmaraj (accused No.5) did not figure in the
testimony of Ashok (PW8). Similarly, in the evidence
of Rukminibai (PW7) the names of two of the appellants
i.e. Raman Jagannath (accused No.2) and Jankiram
(accused No.28) did not figure. However, by relying
upon the law laid down by the Apex Court in Maslatis
case (supra) we have to read the evidence of Ratan
(PW5) together with the evidence of Rukminibai (PW7)
and Ashok (PW8) and if any of the appellants
culpability is established in the evidence of any of
the two witnesses out of the three i.e. PW5, PW7 and
PW8, the order of conviction will have to be upheld.
We, therefore, deem it safe to reproduce the tabular
statement regarding the involvement of the six accused/
appellants before us as per the evidence of the three
eye-witnesses i.e. Ratan (PW5), Rukminibai (PW7) and
Ashok (PW8), whom the trial Court has accepted as such
and we are in agreement with the same, of course in
addition to the testimony of Gaba (PW9) and Kalabai
(PW13).
Sr. Name and No. Particulars of statements given
No. of witness.in the depositions.
01. PW5 – Ratan 1. Accused No. 1 Shivaji
Hari, Accused No.8 Chandrabhan
and Accused No. 40 Prakash
beat Shamrao near electric pole
in front of Shamrao Waman
Sapkale.
2. Accused No. 28 Jankiram
set fire to houses of Sukhadeo
Sadashiv Sapkale, Godavaribai.
3. Accused No. 40 Prakash
dragged Shamrao from the house
of Shamrao Waman Sapkale.
4. Accused No.28 Jankiram and
Accused No. 40 Prakash lit fore
to firewood stack.
5. Accused No.1 Shivaji Hari,
Accused No.2 Raman Jagannath,
Accused No. 5 Dharmaraj,
Accused No. 8 Chandrabhan
lifted Shamrao & kept him on
the burning fire wood.
02. PW7-Rukminibai 1. Accused No. 1 Shivaji Hari
poured kerosen.
2. Accused No. 5 Dharmaraj and
Accused No. 8 Chandrabhan gave
slogans.
3. Accused No. 40 Prakash set
fire to the firewood stack.
03. PW8-Ashok 1. Accused No.1 Shivaji Hari
poured kerosene.
2. Accused No. 5 Dharmaraj,
Accused No. 8 Chandrabhan,
Accused No. 28 Jankiram and
Accused No. 40 Prakash beat
Shamrao by stick and taken him
to the firewood stack.
3. Accused No. 28 Jankiram set
fire to his house and Accused
No. 40 set fire.
23. Now coming to the other offences, we shall
refer to the testimony of Rukminibai (PW7), Ashok
(PW8), Gaba (PW9), and Kalabai (PW13), so as to examine
whether the acts attributed to the appellants, in
addition to the murder of Shamrao, by Ratan (PW5) are
supported by one or more of the witnesses. Rukminibai
(PW7) stated that the incident took place around 8.00
p.m. and her house was in the Budhhawada locality.
She heard shouts of hundreds of villagers to burn the
Harijan people and to set their houses on fire. The
depositions as made by her before the trial Court are
substantial only on the issue of assault on Shamrao
which subsequently resulted into his murder by setting
him on fire at the hands of the five accused and four
of them being the present appellants. We, therefore,
need not consider her evidence for other acts as it is
silent in that respect except to hold that the five
persons, so named, were the members of an unlawful
assembly which had entered the Budhhawada area.
Ashok (PW8) stated that he saw Chandrabhan
Ramkrishna Patil (accused No.8), Prakash Kashinath
Patil (accused No.40), Pandharinath Kautik Patil, Ashok
Hiraman (accused No.19), Raman Jagannath Patil (accused
No.2), Gaulu Kashinath Patil (accused No.18), Jankiram
Pandharinath Patil (accused No.28) and several others.
Jankiram Patil set fire to his house by the burning
torch. He had received injuries on his head and he was
beaten by a pipe. This incident had taken place before
Shamrao Paulad was set on fire. The injuries were
minor in nature. In the crowd of 100-125 persons he
could not see who had beaten him. He did not talk to
any persons in the mob nor any one of them talked to
him. The mob had come from the southern side and after
the members of this mob started pelting of stones on
the house, the persons in the locality were frightened,
ladies, gents and children were running for their
lives. He had also sent his father, wife, children and
brother away from the house as he had apprehended
danger to their lives from the mob.
Gaba (PW9) was declared hostile by the A.P.P.
and in his cross examination by the Prosecutor he
stated that on 2nd August, 1987 between 8.00 to 8.30
p.m. a mob came towards his house and the persons in
the Budhhawada area started running hither-tither on
seeing the mob. Popat Hari (accused No.39), Shivaji
Hari (accused No.1), Pandhari Namdeo, Narayan Namdeo
were in the mob coming towards his house and these
persons set fire to the house of his neighbour and his
house as well. Some articles from his house were
burnt. He identified Popat Hari (accused No.39,
Shivaji Hari (accused No.1), Pandhari Namdeo before the
Court as the same persons who were members of the mob
and who had set fire to his house as well as the house
of his neighbour. After hearing the shouts given by
the mob he had hidden alongwith the family members in
his house and then all of them noticed fire to rear
portion of his house. His children, therefore, left
the house from the front door and all of them went to
the banana field to hide themselves. The Banana field
lies beyond the boundary of the Budhhawada area. While
he was hiding himself in the Banana field he noticed
that houses in the Budhhawada area were in flames one
after another. He, therefore, went to village Khedi
rather than coming to his house and stayed there
overnight. He was candid to say that he did not notice
as to who set fire to the houses in the Budhhawada
area.
Kalabai (PW13), confirmed the earlier incidence
of a scuffle between Ramdas (PW7) and Popat Hari
(accused No.39) and others around 7.00 p.m. She
thereafter got frightened and started running towards
the house of her father and while she and her mother
were running towards the Budhhawada area the attackers
of Ramdas also followed them saying that they would
beat them. These persons were giving slogans “Jai
Bhavani, Jai Shivaji” and that they should be killed.
She, alongwith her mother and maternal uncle, had
hidden in the ancestral house and closed the door.
They heard noises of pelting stones, noise of rod
pushing door of the house which was broken. She stated
that Pandharinath Kautik, Tukaram Mohan, Govinda, Naval
Dattu Patil, Uttam Ramkrishna Patil, Shivaji Hari Patil
entered the house of her family. She was assaulted by
Pandharinath Kautik, Uttam Ramkrishna Patil, Naval
Dattu Patil and she lost her senses. After sometime
she was woken up by her brother and she regained
conscious. She ran towards the field and went to
Khedi. She identified before the Court the accused
persons viz. Tukaram Mohan Patil, Dharmaraj Narayan
Shinde, Pandharinath Namdeo Patil, Shivaji Hari Patil,
Chandrabhan Ramkrishna, Govind Mohan Patil, Popat Hari
Patil tobe the same persons who were the members of the
mob which entered the Budhhawada area. Out of these
persons identified by her, the Appellants before us are
Shivaji Hari Patil, Dharmaraj Shinde, Chandrabhan
Ramkrishna Patil.
The evidence of all these three witnesses read
with the evidence of the complainant (PW5) clearly
brings out the complicity of the Appellants in the
offence of being the members of unlawful assembly,
rioting, rioting with sticks, iron-bars in the
Budhhawada locality in prosecution of their common
object to commit offences punishable under section 147,
148 read with section 149 of the Indian Penal Code.
The evidence in its entirety has also proved beyond
doubt, at the first instance, that a mob had entered
the Budhhawada area with sticks and rods, burning torch
on 2nd August, 1987 between 7.00 to 8.00 p.m. and the
appellants were the members of this mob. It is also
proved that the mob had caused mischief of setting on
fire some of the houses in the Budhhawada locality and
the Panchanama shows that about 26 houses in the said
locality were burnt. The evidence also proved that the
appellants/ accused had voluntarily caused hurt to some
of the witnesses in prosecution of common object of the
said unlawful assembly. The findings recorded by the
trial Court on the points framed by it are duly
supported by the evidence of the above said witnesses
regarding the culpability of the present appellants and
thus the prosecution proved its case beyond reasonable
doubt that the appellants were guilty of committing
offences punishable under section 147/149, 148/149,
302/149, 323/149, 436/149, 504/149, 506/149 of the
Indian penal Code.
24. The learned counsel for the appellants has
invited our attention to the charge framed by the
Sessions court and submitted that it suffers from
patent errors. It is true that while framing the
charge the trial Court ought to have separate each of
the offences punishable under sections 147/149,
148/149, 302/149, 323/149, 436/149, 504/149 and 506/149
of the Indian Penal Code. However, this failure
itself will not vitiate the prosecution case so long as
the trial Court has examined the evidence in respect of
every offence and recorded its findings. We have
considered the evidence on each score and we are
satisfied that the objection so raised has no bearing
on the prosecution case. In addition, though the
evidence about accused No. 1 Shivaji, in respect of his
complicity in the offence of beating or setting the
deceased Shamrao on fire, is not consistent or suffers
from omissions, the evidence of these eye-witnesses is
consistent on the point that he was a member of the
unlawful assembly and Rukminibai (PW7) stated that the
said accused poured kerosene on the fire wood stack.
This evidence has been corroborated by Ashok (PW8) as
well.
25. The evidence of PW5, PW7, PW8, PW9 and PW10
fully corroborates the prosecution case that a mob of
unlawful assembly, armed with sticks, axes, fire torch
etc. had come to Harijanwada and indulged in
atrocities. They had pelted stones on the houses, set
some of the houses on fire and in the said incident
Shamrao was killed. The occurrence in the Rajwada
area, which commenced around 7.00 p.m. on the fateful
day cannot be treated tobe an incidence in isolation
and it has its definite origin in the first incidence
that had taken place in the morning namely Udhav Ragho
was taken to the Gram Panchayat office and he was
allegedly beaten by Popat Hari. In addition,
consequent to the scuffle between Ramdas (PW6) on the
one hand and Popat Hari and his associates on the
other, resulted in spreading a rumour in the village
that the accused Popat Hari was lying on the road and
perhaps he was dead. These developments lead to the
hypothesis that the members of the higher caste got
annoyed and decided to take a revenge or retaliate.
The origin of the common object to enter the
Budhhawada area and commit atrocities is, thus,
originated from these two incidents which had taken
place earlier. The members of the unlawful assembly
were not the residents of the Harijanwada locality and
they were residing in the village at some distance.
When they entered the Budhhawada area with sticks,
axes etc. their objective was visible. Under section
141 of the Indian Penal Code an assembly of five or
more persons is defined as an unlawful assembly if the
common object of the persons composite that assembly
is to commit any mischief or criminal trespass or any
other offence. In the instant case, the object of the
unlawful assembly to commit offences/ atrocities in
the Budhhawada area was duly establish.
CRIMINAL APPEAL NO.: 148 OF 1996
26. As noted earlier, this Appeal survives against
the original six accused viz. Pandharinath Namdeo Patil
(accused No.37), Vasudeo Mohan Patil (accused No.13),
Ashok Hiraman Patil (accused No.19), Tukaram Mohan
Patil (accused No.36), Govind Mohan Patil (accused
No.46) and Namdeo Baburao Patil (accused No.32). It
was urged before us, at the threshold, that
Pandharinath Namdeo Patil and Pandharinath Kautik Patil
are one and the same person and the eye-witnesses have
specifically deposed regarding the participation of
Pandharinath Kautik Patil and, therefore, there was a
case made out to convict accused No. 37 as well. Such
a plea ought to have been taken by the prosecution
before the trial Court which has not been done. There
is nothing on record to show that Pandharinath Namdeo
Patil and Pandharinath Kautik Patil was one and the
same person or the name of Pandharinath Patils father
was Namdeo alias Kautik Patil.
27. It has come in the evidence that a Ricoh watch,
on which the name of Namdeo Baburao Patil (accused
No.32) was engraved, was recovered from the house of
Ratan (PW5). Ratan (PW5) in his depositions stated
that name engraved on the said watch is Namdeo Bhaurao.
In addition, the other witnesses have implicated one
Namdeo Bhaurao as well as Namdeo Hari and Namdeo
Pandurang. None of these persons were arrayed as
accused before the trial Court. Namdeo Baburao Patil
(accused No.32) has, therefore, been rightly acquitted
by the trial Court.
28. Though the complainant, in his depositions
before the trial Court, has implicated Vasudeo Mohan
(accused No.13) he does not refer to the presence of
Tukaram Mohan Patil (accused No.36) and Govind Mohan
Patil (accused No.46) as well as Ashok Hiraman Patil
(accused No. 19). The other eye-witnesses have not
spoken regarding the presence of Vasudeo Mohan Patil
(accused No.13) as member of the unlawful assembly. No
two witnesses have implicated any one of these four
accused viz. Ashok Hiraman Patil (accused No.19),
Tukaram Mohan Patil (accused No.36), Govind Mohan Patil
(accused No. 46) and Vasudeo Mohan Patil (accused
No.13). The trial Court has meticulously analysed the
evidence brought before it by the prosecution and the
finding of acquittal recorded against all these six
respondents/ accused does not suffer from any
infirmities. This appeal, therefore, does not succeed.
29. In the result, both the appeals are hereby
dismissed and the order of conviction and sentence, as
passed by the learned Sessions Judge in Sessions Case
No. 32 of 1989 on 19th February, 1996 is hereby
confirmed. The District Superintendent of Police,
Jalgaon is directed to take immediate steps for the
re-arrest of the absconding accused.
D.S. Zoting, J.
B.H. Marlapalle, J.