Bombay High Court 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Criminal Confirmation Case No. 4/2008. Central Bureau of Investigation (Through D.S.P.,C.B.I.S.C.B. Chennai) Camp at Bhandara. …..Appellant. .versus. 1. Sakru Mahagu Binjewar (Original Accused No.2) 2. Shatrughna Isram Dhande (Original Accused No. 3) 3. Vishwanath Hagru Dhande (Original Accused No. 6) 4. Ramu Mangru Dhande (Original Accused No. 7) 5. Jagdish Ratan Mandlekar (Original Accused No. 8) 6. Prabhakar Jaswant Mandlekar (Original Accused No. 9) Respondent Nos. 1 to 6 R/o: Khairlanji District: Bhandara (Maharashtra State). ...Respondents Mr. Ejaz Khan, Spl. P.P. For appellant. Mr. Sudip Jaiswal, Advocate for respondent nos. 1,5 and 6. Mr. N.S.Khandewale, Advocate for respondent nos. 2,3 and 4. ::: Downloaded on - 12/09/2013 11:54:42 :::
131
Embed
Bombay High Court - The Wall Street Journal & Breaking ...online.wsj.com/public/resources/documents/Khairlanji.pdfBombay High Court 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Bombay
Hig
h Court
1IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Confirmation Case No. 4/2008.
Central Bureau of Investigation(Through D.S.P.,C.B.I.S.C.B. Chennai)Camp at Bhandara.
...RespondentsMr. Ejaz Khan, Spl. P.P. For appellant.Mr. Sudip Jaiswal, Advocate for respondent nos. 1,5 and 6.Mr. N.S.Khandewale, Advocate for respondent nos. 2,3 and 4.
(All the appellants are R/o: Village Khairlanji, Tah. Mohadi, Distr.Bhandara.)
…....Appellants.
.versus.
The Central Bureau of Investigation,through its Dy.S.P., C.B.I., S.C.B., Chennai,Camp at Bhandara.
…....Respondent.
Mr. N.S.Khandewale Advocate for the appellants.Mr. Ejaz Khan, Spl. P.P. for respondent.
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
3
Criminal Appeal No. 763/2008
1. Gopal Sakru BinjewarAged about 23 years,Occupation: Cultivator,R/o: Khairlanji, Tahsil Mohadi,District: Bhandara.(Original accused no. 1)
2. Sakru Mahagu BinjewarAged about 49 years,Occupation: Cultivator,R/o: Khairlanji, Tahsil Mohadi,District: Bhandara.(Original accused no. 2)
3. Jagdish Ratan MandlekarAged about 51 years,Occupation: Cultivator,R/o: Khairlanji, Tahsil Mohadi,District: Bhandara.(Original accused no.8)
4. Prabhakar Jaswant MandlekarAged about 27 years,Occupation: Cultivator,R/o: Khairlanji, Tahsil Mohadi,District: Bhandara.(Original accused no. 9)
…....Appellants..Versus.
Central Bureau of Investigation,through its D.S.P.,, C.B.I., S.C.B.Chennai, Camp at Bhandara.
…....Respondent. Mr. Sudeep Jaiswal, Advocate for the appellants.Mr. Ejaz Khan, Spl. P.P. for respondent.
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
4
Criminal Appeal No. 170/2009
Central Bureau of Investigation,Special Crime Branch, Chennai CampO/o: SP, CBI, ACB, 3rd Floor, Block – C,CGO Complex, Seminary Hills, NagpurThrough PSI, CBI, Nagpur.
….Appellant.
Versus.
1. Gopal Sakru Binjewar,Aged about 23 years,OccupatioN: Labour.
2. Shishupal Vishwanath Dhande,Aged about 23 years,Occupation: Cultivator.All residents of Village Khairlanji,Tah: Mohadi, Distt. Bhandara. ….. Respondent.
Mr. Ejaz Khan, SPL, P.P. For the appellant.Mr. Sudeep Jaiswal, Advocate for respondent no.1.Mr. N.S.Khandewale, Advocate for respondent no.2.
Criminal Appeal No. 171/2009
Central Bureau of Investigation,Special Crime Branch, Chennai CampO/o. SP, CBI, ACB, 3rd Floor,Block C, CGO Complex, Seminary Hills,Nagpur, Through PSI, CBI, Nagpur.
…....Appellant.
.versus.
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
51. Gopal Sakru Binjewar,
Aged about 23 years,Occupation: Labour.
2. Sakru Mahagu BinjewarAged about 49 years,Occupation; Labour.
3. Shatrughan Isram Dhande,Aged about 40 years,Occupation: Cultivator.
4. Vishwanath Hagru DhandeAged about 55 years,Occupation: Cultivator.
5. Ramu Mangru Dhande,Aged about 42 years,Occupation: Cultivator.
6. Jugdish Ratan Mandlekar,Aged about 51 years,Occupation: Cultivator.
8. Shishupal Vishwanath Dhande,Aged about 23 years,Occupation: Cultivator.All residents of Village Khairlanji,Tah. Mohadi, Distt. Bhandara.
…..Respondents.Mr. Ejaz Khan, SPL. P.P. for appellant.Mr. S.Jaiswal, Advocate for respondents 1,2,6 and 7.Mr. N.S.Khandewale, Advocate for respondents 3,4,5 and 8.
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
6 CORAM : A.P.LAVANDE & R.C.CHAVAN, JJ DATE OF RESERVING : 29.04.2010 DATE OF PRONOUNCEMENT: 14.07.2010
JUDGMENT (PER A.P.LAVANDE, J)
Confirmation Case No. 4/2008 along with
connected four appeals are being disposed of by common
Judgment since they arose out of the Judgment and order
dated 15/24th September, 2008 passed by the Special Court
at Bhandara in Special Criminal Case No. 01/2007 filed by
Central Bureau of Investigation against eleven accused.
2. All the eleven accused were tried for the offences
punishable under Sections 302, 354, 449, 201, 148 read with
Section 149, 120B of the Indian Penal Code and Sections
3(1) (x), 3(1) (xi), 3(2) (v) and 3(2) (vi) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities ) Act,
1989. By the impugned Judgment accused nos. 1 to 3; 6 to 9
and 11 have been convicted and sentenced for different
offences and accused nos. 4,5 and 10 have been acquitted of
all the offences for which they have been charged. The
details of conviction and sentences imposed on accused
nos. 1 to 3, 6 to 9 and 11 are as under:
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
7
Accused Sections Sentence nos.
1 to 3, 6 to 9 302 r/w 149 Imprisonment for life and and 11. for murder payment of fine of Rs.2000/
of Surekha each i/d to undergo S.I. for six months each.
2,3,6 and 9 302 r/w 149 Sentenced to death i.e. for murder hang by neck till death and of Sudhir payment of fine of Rs.2000/
each i/d to undergo S.I. for six months each.
1 and 11 302 r/w 149 Imprisonment for life and for murder payment of fine of Rs.2000/ of Sudhir each i/d to undergo S.I. for
six months each.
2,3 & 6 to 9 302 r/w 149 Sentenced to death i.e. for murder hang by neck till death and of Roshan payment of fine of Rs.2000/
each i/d to undergo S.I. for six months each.
1 and 11 302 r/w 149 Imprisonment for life and for murder payment of fine of Rs.2000/
of Roshan each i/d to undergo S.I. for six months each.
2,3 & 6 to 9 302 r/w 149 Sentenced to death i.e. for murder hang by neck till death and of Priyanka payment of fine of Rs.2000/
each i/d to undergo S.I. for six months each.
1 and 11 302 r/w 149 Imprisonment for life and for murder payment of fine of Rs.2000/
of Priyanka each i/d to undergo S.I. for six months each.
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
8
1 to 3 and 148 r/w 149 R.I. for three years and to6 to 9 & 11 pay fine of Rs.1000/ each
i/d to S.I. for three months each.
3. Confirmation Case No. 4/2008 arises out of death
sentence imposed on accused nos. 2,3,6,7,8 and 9;
Criminal Appeal No. 763/2008 has been filed by original
accused nos. 1,2,8 and 9 challenging the conviction and
sentences imposed on them; Criminal Appeal No. 748/08
has been preferred by the original accused nos. 3,6,7 and 11
challenging the conviction and sentences imposed on
them; Criminal Appeal No. 170/09 has been preferred by
Central Bureau of Investigation under Section 377 of the
Indian Penal Code, aggrieved by inadequacy of sentences
imposed on accused nos. 1 and 11 and Criminal Appeal No.
171/09 has been preferred by Central Bureau of
Investigation challenging acquittal of accused nos. 1 to 3, 6
to 9 and 11 for the offences punishable under sections 3(1)
(x), 3(1)(xi), 3(2) (v) and 3(2) (vi) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
For the sake of convenience, the accused shall hereinafter
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
9be referred to as per their status before the trial court.
4. Briefly, the case of the prosecution is as follows:
Informant Bhaiyyalal Bhotmange (P.W.17) was
residing at outskirts of Khairlanji village called as 'Toli' with
his wife Surekha and sons Sudhir and Roshan and daughter
Priyanka. They belong to Mahar caste (scheduled caste).
Sidharth Gajbhiye (P.W.11) Police Patil of nearby village
Dhusala is their family friend.
5. On 13.9.2006 Siddharth Gajbhiye came to the
house of Bhaiyyalal Bhotmange in the morning. Accused
No. 2 Sakru met Siddharth Gajbhiye and demanded back
wages on account of which there was a dispute between
them. Sidharth slapped Sakru. On the very day in the
evening when Sidharth was proceedings towards Kandri he
was assaulted by some villagers. On hearing the news of
assault Surekha Bhotmange and Priyanka rushed there and
brought Sidharth to their house. After two days Sidharth
lodged report at Andhalgaon Police Station pursuant to
which Crime No. 52/06 was registered. Surekha Bhotmange
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
10gave statement identifying the persons/ accused who
assaulted Siddharth pursuant to which attackers were
arrested. On 29.9.2006 all the accused in Crime No. 52/06
were released on bail.
6. On 29.9.2006 at about 6 to 6.30 p.m. a group of
about 40 persons surrounded the house of Bhaiyyalal
Bhotmange and some of them shouted that they have been
falsely implicated by Surekha. They also gave abuses of
their caste. On seeing that Bhaiyalal ran away from the
house. Surekha came out of her house and set fire to her
cattle shed probably to ward off the attackers. Then
Surekha tried to run away but she was chased and caught by
the accused. She was assaulted by giving blows of sticks,
bicycle chains and also by giving kicks and fist blows.
Thereafter, Sudhir tried to run away but he was also chased
by the accused and he was assaulted by giving blows of
sticks, bicycle chains and by giving kicks and fist blows. His
body was dragged near the body of Surekha who was
already dead. All the accused then searched for other
members of the family of Bhaiyalal. They traced Roshan in
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
11nearby cattle shed. Roshan freed himself and ran away
towards the hand pump. All the accused chased him and
caught him near hand pump where he was assaulted by
giving blows of sticks, bicycle chains and by giving kicks
and fist blows. Thereafter, accused caught Priyanka near
the hand pump and all the accused beat her by giving blows
in the same manner. On account of assault, Roshan and
Priyanka died. Thereafter, all the accused brought four dead
bodies at one place and threatened others not to tell about
the incident to any one and further threatened that in case
the incident is disclosed they would also meet with the
same fate. Thereafter, accused brought one bullock cart and
took four dead bodies towards the village Kandri and then
dropped them in a canal.
6A. Bhaiyyalal Bhotmange after running away from
his house went to the house of Siddharth Gajbhiye at
Dhusala and told him about the incident. Siddharth made a
phone call to Andhalgaon Police Station. Thereafter,
Bhaiyalal, accompanied by son of Siddharth, went to
Andhalgaon Police Station but did not lodge report since he
was frightened. On the next day morning Bhaiyyalal went
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
12to search his family members but he could not trace them
out. Then he went to Andhalgaon Police station and lodged
report. By this time, the police had received information
that the dead body of a girl with a tatoo mark 'Priyanka' on
the hand was found in a canal which was fished out. Police
called Bhaiyalal at Mohadi hospital where the dead body
was taken. Bhaiyalal identified the dead body of Priyanka.
On the same day at about 8.00 p.m. crime was registered
under Sections 147, 148, 149, 302 and 201 of the Indian
Penal Code and under Sections 3(1)(x) of Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act.
7. On 1.10.2006 the Sub Divisional Police Officer Mr.
Susatkar arrested about eighteen persons on suspicion. On
the same day three more dead bodies i.e. of Surekha, Sudhir
and Roshan Bhotmange were also found. Police prepared
inquest panchanamas of these dead bodies and the dead
bodies were sent for post mortem. Since the investigation
was not being carried out on proper lines, the State
Government handed over the investigation of the crime to
the State C.I.D.. However, not much progress was made in
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
13the investigation.
8. By notification dated 20.11.2006 the State of
Maharashtra requested the Union of India to investigate the
crime through Central Bureau of Investigation. Central
Bureau of Investigation started investigation by registering
the crime at Special Crime Branch of C.B.I. Chennai vide
No. 11S2006. Thereafter, investigation was taken up by
SDPO of CBI Shri N.K.Sharma which was followed by Dy.
S.P. CBI Shri Nandkumar. In the course of investigation,
CBI recorded statements of several witnesses. CBI sought
discharge of thirty six accused who were suspected to be
involved in the crime which was granted by the learned
Magistrate. Statements of several witnesses were also got
recorded by the Magistrate in terms of Section 164 of the
Code of Criminal Procedure. After completion of the
investigation, CBI submitted charge sheet against eleven
accused for the offences punishable under Sections 147,
148, 149, 120B and 302 of the Indian Penal Code and
offences under The Scheduled Castes and The Scheduled
Tribes (Prevention of Atrocities) Act. The learned Judicial
::: Downloaded on - 12/09/2013 11:54:42 :::
Bombay
Hig
h Court
14Magistrate, First Class, Mohadi committed case to the court
of Sessions. Thereafter, the case was transferred to Special
Court for trial. The Special Court framed charge against all
the accused for the offences punishable under Sections 302,
148, 149, 354, 201 read with Section 149 and 120B of the
Indian Penal Code and under Sections 3(1)(x), 3(1)(xi) and
Section 3(2)(v) and 3(2)(vi) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. The
accused pleaded not guilty to the charge and claimed to be
tried. The defence of the accused was of total denial and of
false implication.
9. In the course of trial, the prosecution examined
thirty six witnesses and produced several documents to
bring home the charge to the accused. The accused did not
lead any defence evidence. The learned trial Judge upon
appreciation of the evidence led by the prosecution
convicted and sentenced the accused nos. 1 to 3, 6 to 9 and
11 for different offences as stated above. The learned trial
Court acquitted the accused nos. 4,5 and 10 of all the
offences for which they were charged. The learned trial
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
15Judge awarded the death sentence to accused nos. 2,3,6, 7,8
and 9.
10. We heard at length Mr. Sudeep Jaiswal, learned
counsel appearing on behalf of accused nos. 1,2,6 and 7, Mr.
N.S.Khandewale, learned counsel for the accused nos. 3,6,7
and 11 and Mr. Ejaz Khan, learned Special Public
Prosecutor on behalf of the CBI. With the assistance of
learned counsel for the accused and learned Special P.P. we
perused the record.
11. Mr. Jaiswal, learned counsel for the accused nos.
1,2,6 and 7 submitted that the conviction of accused nos.
1,2 6 and 7 and sentences imposed on them are liable to be
set aside, inter alia, on the following grounds.
i) The evidence of the eye witnesses i.e.
Mukesh Aasaram Pusam( P.W.2); Suresh
Shalikram Khandate (P.W.3), Bhaiyyalal
Bhotmange (P.W.17), Dinesh Dhande
(P.W.19) and Premlal Walke (P.W.22) does
not inspire confidence and as such is liable to
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
16be rejected.
ii) There has been inordinate and
unexplained delay in recording the
statements of the witnesses more particularly
of the eye witnesses which is fatal to the
prosecution case.
iii) The evidence of the so called eye
witnesses is full of contradictions and
omissions seriously affecting their credibility.
iv) Extra judicial confessions alleged to
have been made by the accused nos. 2 and 8
to P.W.10 Anil Lede and P.W.16 Sunil Lede do
not inspire confidence.
v) The prosecution evidence is
tainted and is of only interested witnesses
and, therefore, is liable to be rejected.
vi) The medical evidence is at variance
with ocular testimony and, therefore, no
reliance can be placed on the eye witnesses
examined by the prosecution.
vii) The death sentence awarded to
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
17accused nos. 2,6 and 7 is not warranted
inasmuch as the case can not be termed as
rarest of rare case warranting imposition of
death sentence.
In support of his submissions, Mr. Jaiswal relied
upon the following authorities.
i) State of M.P. vs. Kriparam (2003) 12 Supreme Court Cases,
675.
ii) State of Punjab vs.Hardam Singh & others.
(2003) 12 Supreme Court Cases, 679.
iii) Rangrao Mithuji Kalokar & ors. vs. State of Maharashtra.
2006 ALL MR(CRI) NOC 90.
iv) State of Maharashtra vs. Ahmed Gulam Nabi Shaikh & ors.
1996(4)CRIMES 352.
v) Kikar Singh vs. State of Rajasthan AIR 1993 SC 2426.
vi) State of Andhra Pradesh vs. Punati Ramulu and others.
AIR 1993 SC 2644
vii) Mohinder Singh & Anr. vs. State of Punjab and others.
2003 ALL MR(CRI) 2330
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
18viii) State of U.P. vs. Mundrika &
others. I(2001)CCR 80SC
ix) Sirima Narashimha Rao & others vs. State of Andhra Pradesh
2010 (1)BCR 802.
x) Shankar Lal vs. State of Haryana AIR 1998 CRLJ 4592
xi) Tarseem Kumar vs. The Delhi Administration
AIR 1994 SC 2585
xii) Dilavar Hussain and others. vs. State of Gujrat and another. 1991(1) SCC 253
xiii) Varkey Joseph v. State of Kerala AIR 1993 SC 1892
xiv) Omwati vs. Mahendra Singh & others.
(1) 1998 CCR 130 SWC
xv) Tahsildar Singh and another vs. State of U.P.
AIR 1959 SC 1012.
12. Mr. Khandewale, learned counsel appearing for
accused nos. 2,6,7 and 11 assailed conviction and sentences
imposed on these accused, inter alia, on the following
grounds.
i) There is unexplained and
inordinate delay of 24 to 26 hours in lodging
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
19F.I.R. by Bhaiyyalal Bhotmange(P.W.17)
which creates serious doubt about
prosecution case.
ii) F.I.R. (Exh. 133) is full of
discrepancies and the written F.I.R. (Exh. 134)
does not correspondence with the oral report
lodged by P.W.17 Bhaiyyalal Bhotmange and
the same has been fabricated by the
investigation officer Siddeshwar Bharne
(P.W.23).
iii) The evidence of eye witnesses is full
of material contradictions and omissions and
tenor of their evidence discloses that they
were not the real eye witnesses to the
incident.
iv) There has been inordinate delay in
recording the statements of the witnesses,
more particularly the eye witnesses which
throws serious doubt on the prosecution
case.
v) The extra judicial confessions
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
20alleged to have been made by accused nos. 2
and 8 to P.W.10 Anil Lede, P.W.15 Gopichan
Mohature and P.W.16 Sunil Lede do not
inspire confidence since both these witnesses
were induced to be the witnesses to the
alleged extra judicial confessions.
vi) The medical evidence tendered by the
prosecution thorough P.W.14 Dr. Avinash
Shende is at variance with ocular testimony
inasmuch as he has clearly admitted that
incise wounds found on the deceased could
be caused only by sharp edged weapon which
is contrary to the prosecution case.
vii) The medical evidence clearly belies
evidence of the eye witnesses.
viii) The prosecution has chosen not to
show weapons i.e. sticks and bicycle chains
seized during the investigation to Dr. Avinash
Shende (P.W.14) in order to establish that
these weapons could have caused injuries
found on the deceased.
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
21ix) The entire investigation carried out
by the CBI is tainted and with a view to falsely
implicate eleven accused in the crime.
x) The death sentence awarded to
accused nos. 3,6 and 7 is not warranted since
the case can not be termed as rarest of rare.
In support of his submissions, Mr. Khandewale,
placed reliance on the following judgments.
i) Motilal and another vs. State of Rajasthan.
(2009) 7 Supreme Court Cases, 454.
ii) State of Punjab vs. Avtar Singh (2009) 10 SCC 800
iii) State of Andhra Pradesh (2008) 14 SCALE 118.
iv) Sau. Panchafula Ramchandra Khadse & another vs. State of Maharashtra
2008 ALL MR (Cri.) 375
v) Ramesh Baburao Devaskar & ors. vs. State of Maharashtra
2008 ALL MR (CRI) 293 (SC).
vi) Shankarlal vs. State of Rajasthan AIR 2004 SC 3559.
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
22vii) State of Rajasthan vs. Sheo Singh
& others. AIR 2003 SC 1783
viii) Ashraf Hussain Shaj vs. State of Maharashtra
1996 CRLJ 3147.
ix) Pannayar vs. State of Tamil Nadu ((2009)9 SCC 152).
x) Pratap Singh and another vs. State of M.P..
2005) 13 Supreme Court Cases, 624.
xi) State of Rajasthan vs. Bhanwar Singh & others.
2004(5) SCALE 711.
xii) Badam Singh vs. State of M.P. (2003) 12 Supreme Court Cases,792.
xiii) State Inspector of Police, Vishakhapatnam vs. Surya Sankaram Karri.
(2006) 7 Supreme Court Cases, 172.
xiv) Ashish Batham vs. State of M.P. AIR 2002 Supreme Court, 3206.
xv) Shrishti Narain Jha vs. Bindeshwar Jha and others.
(2009) 6 Supreme Court Cases,457.
xvi) State of Maharashtra vs. Pralhad Champatrao Deshbhratar and
Bhaiyalal Bhotmange, Sudhir Bhaiyalal Bhotmange and
Surekha Bhaiyalal Bhotmange died homicidal death. The
prosecution has examined Dr. Avinash John Shende
(P.W.14) Medical Officer who at the relevant time was
posted at Sihora Rural Hospital and was deputed at Mohadi
Rural Hospital for the period April to November, 2006. He
deposed that he had conducted about 20 to 25 post
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
29mortems. On 30.9.2006 dead body of Priyanka Bhaiyalal
Bhotmange was referred to him for post mortem. He
conducted the post mortem on the same day. He found the
following external injuries.
i) Incised would over the scalp at the left tempero
occipital region with fracture of tempero occipital
bone 5 (length) x 2 (breadth) x 1 (depth) cm. In size.
ii) Incised wound over the right parietal bone 3 x 1 x
0.5 c.m.
iii) Marks of strips of chain over the middle half of the
right thigh extending from the lateral surface to the
frontal aspect horizontally 15 x 1 cm..
iv) Marks of signs of chain over the right middle half
of the right thigh above the injury No. 3 parallel to the
injury No. 3 having size 10 x 1 cm..
v) Marks of strips of chain over the left thigh lower
1/3 frontal aspect 3 x 1 cm. In size.
vi) Contusion over mandible middle part 3 x 1 cm.
In size.
vii) Contusion over the left hand 4 x 4 cm. In size.
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
30viii) Contusion all over the left forearm with collies
fracture left side.
ix) Marks and strips of chain extending from the
above of the mid clavicular line to the lower end of
stern um on chest about 15 x 1 cm..
x) Contusion over the chest, left side at the level
10th to 12th rib about 3 x 2 cm. In size.
xi) Contusions over the back of chest right having
size 7 x 5 cm. At the level of scapula.
15A. All those injuries were ante mortem. Injury Nos. 1
and 2 were on vital parts of that deadbody. These injuries
No. 1 and 2 were sufficient in ordinary course nature to
cause death. Injuries nos. 3,4, 5 and 9 could have been
caused by giving blows of cycle chain. Rest of the injuries
could have been caused by hard and blunt object.
15B. On internal examination of dead body, he found
the following injuries.
i) There was haemorrhage on left tempero
occipital region which was beneath the external
injury no. 1.
ii) There was haemorrhage at right parital
region which was beneath external injury no.2.
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
31iii) Fracture of tempero occipital bone.
iv) Fracture of frontal bone.
15C. Internal injuries nos. 3 and 4 were also
corresponding to external injuries no. 1 and 2. Probable
cause of death was due to intracranial haemorrhage due to
head injury. He had issued post mortem Exh. 120. He
confirmed its contents as correct and identified his
signature on the same.
15D. He further deposed that on 1.10.2006 the dead
body of Roshan Bhaiyalal Bhotmange was referred to him
for post mortem which was conducted by him on the same
day. On external examination he found the following
injuries.
i) Contusion over the middle half of the right leg 3 x 2 cm in size caused by hard and rough object.
ii) Contusion over the right medial surface of the ankle 2 x 2 cm in size.
iii) Contusion over the right side of the middle chest 5 x 3 cm in size.
iv) Contusion over the right side abdomen at midelavicular line 3 x 2 cm. In size.
v) Lacerated wound over the floor of the
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
32right eye 2x2x1 cm deep with fracture floor of the right eye.
vi) Contusion over the right eye.
vii) Mouth is damaged teeth in tact with fracture midline of the mandible at chin.
viii) Lacerated wound over the frontal bone right side 2 x 0.5 x 3 cm. Insize having fracture at the frontal bone.
ix) Lacerated wound on the back of head 6 x 1 x 1 cm extending from the right siide to left side of occipital bone.
x) Lacerated wound over and above, the right ear on the temporal bone 2 x 0.5 x 0.5 cm..
15E. All these injuries were ante mortem. Out of these
injuries, injuries Nos. 8,9 and 10 were on the vital parts of
body and were sufficient in the ordinary course of nature to
cause death. All the injuries could have been caused by
hard and blunt object and were sufficient in the ordinary
course of nature to cause death.
On internal examination of dead body of Roshan
Bhotmange he found the following injury.
i) Haemorrhage under the scalp at right frontal bone beneath external injury no. 8.
15F. The probable cause of death of Roshan
Bhotmange was due to intracranial haemorrhage due to
head injury. Accordingly, he issued post mortem report
Exh. 121. He identified his signature on the same and
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
33confirmed its contents as true.
16. On 1.10.2006 dead body of Sudhir Bhaiyalal
Bhotmange was brought to him for post mortem. He
conducted post mortem and on external examination he
found the following injuries.
i) Abrasion over the right knee, a) 5 x 2 cm. In size; b) 2 x 2 cm in size over patella.
ii) Contusion over the shin of right tibia 8 x w cm in size lateral surface.
iii) Contusion over the chest 10 x 5 cm over left side from the medial sternal end to midclavicular line.
iv) Contusion over the left medial half forearm with swelling with crepitus with fracture middle half of ulna.
v) Contusion over the right lower chest 3 x 2 cm.
vi) Abrasion over the left knee 4 x 1 cm. In size over patella.
vii) Abrasion over the ankle lateral surface a) 3 x 2 cm. b) 2 x 1 cm right side.
viii) Contusion over the left eye which was swollen.
ix) Lacerated wound over the left parietal bone 4 x 1 x 0.5 cm in size.
x) Lacerated wound over the lateral surface of left eye 3 x 0.5 x 1 cm. in size.
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
34
xi) Lacerated wound over the right frontal region 3 x 1 x 1 cm. in size.
xii) Lacerated wound over the right parietal bone 1x 1x 1 cm. in size.
xiii) Lacerated wound over and above te right ear at the region of right temporal 1 x 1 x 1 cm. in size.
xiv) Lacerated wound over the back of head at the occipital region 4 x 2 x 1 cm. in size.
xv) Fracture of vault of scull extending from the lateral canthus of left eye to the midparietal suture about 15 cm size.
All these injuries were ante mortem. Injuries nos. 9 and
11 to 15 were on the vital parts of body and were sufficient
in the ordinary course of nature to cause death. The
injuries could have been caused by hard and blunt object.
On internal examination of dead body of Sudhir
Bhotmange, he found haemorrhage under scalp present at
left front to parietal region which corresponds to external
injury no. 15.
The probable cause of death of Sudhir was due to
intracranial haemorrhage due to head injury. Accordingly,
he issued post mortem note Exh. 122. He confirmed its
contents as true and identified his signature on the same.
16A. On 1.10.2006 dead body of Surekha Bhaiyalal
Bhotmange was brought to him for post mortem and he
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
35conducted the post mortem on the dead body of Surekha
Bhaiyalal Bhotmange and on external examination he
found the following injuries;
i) Incised wound over the scalp extending from left parietal bone to the frontal bone right side with expose of the scull parts 8 x 7 m 0.5 cm. In size.
ii) Incised wound left temporal side obliquely for 4” x 0.5 in size.
iii) Incised wound right lateral side, shin of tibia upper 1/3, 5 x 3 x 3.5 cm in size.
iv) Incised wound over the face below right eye 2 cm below 1 x 1 x 0.5 cm in size.
v) Incised wound over the right temporal 3 x 2 x 1 cm in size.
vi) Contusion over the middle half of the lower leg left side with fracture tibia fibula.
vii) Contusion over the left knee joint 5 x 2 cm. in size with fracture left knee joint.
viii) Incised wound over the base of the right knee with fracture base of phalanx 1 x 1 x 1 cm.
ix) Contusion over the right wrist having fracture coll'es right.
x) Contusion over the right lower 1/3 of thigh frontal aspect 5 x 3.
xi) Marks of strips of chain over the right lateral surface of thigh to frontal thigh 15 x 1
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
36cm. with contusion of the part.
xii) Marks of strips of chain over the left side of the chest above the left breast 10 x 1 cm.
xiii) Contusion over the right middle half of lower leg 3 x 2 cm in size.
xiv) Contusion over the left thigh middle half of the frontal aspect 3 x 2 cm in size.
xv) Abrasion over the lower 1/3 of the left leg 2 x 1 cm. in size.
xvi) Abrasion over the lower 1/3 of right leg 3 x 2 cm in size.
16B. All these injuries were ante mortem. Injuries nos.
1 to 5 were on the vital parts of the body and were sufficient
in the ordinary course of nature to cause death. Injuries 1
to 10 and 13 to 16 could have been caused by hard and
blunt object. Injury nos. 11 and 12 could have been caused
by giving blows of metal chain.
16C. On internal examination he found the following injuries;
i) Haemorrhage at left temporal occipital bone which corresponds to external injury no.1.
ii) Haemorrhage at right temporal bone, which corresponds to external injury no. 5.
iii) Fracture at left tempero occipital bone, which corresponds to injury no.1.
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
37
iv) Fracture on right frontal bone, which also corresponds to injury no.1.
v) Fracture at right temporal bone which corresponds to injury no.5.
Probable cause of death of Surekha
Bhotmange was due to intracranial
haemorrhage due to head injuries.
Accordingly, he issued poste mortem note
Exh. 123. He confirmed its contents as true
and he identified his signature on the same.
16D. The witness further deposed that in all four dead
bodies, he found semi digested food at small intestines and,
therefore, he opined that all these four persons had died
after about 5 to 6 hours of their last meals. In cross
examination he admitted that incised wounds can only be
caused by sharp edged weapon. He also admitted that
external injuries 1 to 5 and 8 as mentioned in column no.
17 of the post mortem report of Surekha Bhotmange were
caused only by sharp edged weapons. He admitted that
external injuries no. 1 and 2 as mentioned in column no. 17
of the post mortem note of Priyanka Bhotmange were
caused only by sharp edged weapons. He admitted that
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
38injury nos. 1 and 2 mentioned in column no. 19 of post
mortem note of Priyanka Bhotmange could have been
caused by sharp and hard weapon. He also admitted that
internal injuries as mention in column no. 19 of the post
mortem note of Surekha Bhotmange could have been
caused by sharp and hard weapon. However, he denied the
suggestion that if a person floats in canal water for
kilometers, then he can sustain contused wound due to
dash of the body against the canal. He admitted that there
could be contusions and abrasions if one falls on hard
rough and blunt surface. He further deposed that the chain
marks are also known as ligature marks but he did not find
ligature marks on any of the four bodies of which he had
performed post mortem. The witness volunteered that he
found ligature marks on the dead bodies of Surekha and
Priyanka Bhotmange. He admitted that he had not
mentioned in post mortem reports of Roshan and Sudhir
Bhotmange that haemorrhage which caused their death
was intracranial haemorrhage. He had not mentioned
word “intracranial” because he forgot to write the same. He
admitted that he knew the importance of writing correct
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
39dates. The witness admitted that the date mention at page
no. 7 of post mortem report of Priyanka Bhotmange at its
bottom is 30.9.2009 and there is over writing on that date.
He denied that initially the date 1.10.2006 was written and
thereafter it was changed to 30.9.2006. The witness was
shown the death certificate which was issued by him. The
witness stated that the date mentioned in it at bottom was
30.9.2006 and not 30.8.2006. This certificate was marked as
Exh. 124. He admitted that there was over writing at the
place of date of page no. 7 of both the post mortem notes of
Roshan and Sudhir Bhotmange. He denied that it was
earlier written as 5.10.2006. He denied that thereafter the
same was changed to 1.10.2006. He admitted that
provisional certificate of death is given on the basis of the
notes of injuries in order to enable the investigating agency
to set the line of their investigation. He admitted that he
had prepared final report of post mortem after the dead
bodies were handed over. He denied that on 1.10.2006 he
had conducted one post mortem and then scribed final
report and then conducted another post mortem. Witness
volunteered that he had conducted three post mortems one
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
40after the other and thereafter scribed final post mortem
reports. He admitted that at page no. 8 of the post mortem
of Priyanka he had corrected the earlier date of 1.10.2006 to
30.9.2006. He further stated that it was not necessary that in
every homicidal death viscera should be preserved. He
denied the suggestion that police had taken post mortem
notes from him on 5.10.2006. He deposed that peeling of
skin on the dead bodies of Roshan, Sudhir and Surekha
Bhotmange was sign of decomposition.
16E. The witness further admitted that his services
were terminated with effect from 9.11.2006 and the same
was terminated since his work was not found satisfactory
and that he was again given fresh appointment by
Government. He admitted that as he had conducted those
post mortems he was terminated alleging that his work was
not satisfactory. Witness stated that decomposition starts
after 24 hours. In further cross examination he admitted
that Priyanka had died about 16 to 18 hours before
conducting post mortem. Other three persons died about
30 to 34 hours before conduction of their post mortem. He
admitted that he has not noted the age of injuries on the
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
41post mortem notes. He had mentioned the time of death
approximately. He denied the suggestion that he had not
conducted post mortem of those bodies. He denied the
suggestion that he had not conducted any post mortem
before conducting the post mortem on the four dead
bodies.
17. The evidence of the above witness, which has not
been shaken on material aspects in the cross examination,
clearly proves that all the four deceased viz. Priyanka
Bhotmange, Roshan Bhotmange, Sudhir Bhotmange and
Surekha Bhotmange died homicidal death. Same also
stand corroborated by inquest panchanamas Exhs. 91, 86,88
and 87 of Priyanka Bhotmange, Roshan Bhotmange, Sudhir
Bhotmange and Surekha Bhotmange respectively which
have not been seriously disputed. Thus, the prosecution has
been able to prove that Priyanka Bhotmange, Roshan
Bhotmange, Sudhir Bhotmange and Surekha Bhotmange
died homicidal death.
18. The learned counsel for the accused and learned
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
42Special P.P. for CBI have cited several authorities in support
of various propositions regarding delay in lodging FIR,
delay in recording statement of a witness, variance
between medical and ocular evidence, etc..which we have
referred hereinabove. We do not propose to deal with the
authorities individually but we propose to mention the
propositions for which the authorities have been cited.
19. The following propositions emerge from the
authorities cited by Mr. Jaiswal, learned counsel for the
accused nos. 1,2,6 and 7.
i) Unexplained delay in lodging First
Information Report is fatal to the prosecution
case.
ii) In case of material contradictions in the
testimonies of prosecution witnesses the
accused are entitled to acquittal.
iii) Accused can not be convicted, if the
prosecution evidence is tainted.
iv) Unexplained delay in recording
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
43statements of material witnesses is fatal to the
prosecution case.
v) If there is variance between ocular
testimony and medical evidence the
prosecution case becomes doubtful.
vi) The evidence of a witness full of material
contradictions does not deserve any
credence.
20. The following propositions emerge from the
authorities cited by Mr. N.S.Khandewale, learned counsel
appearing for accused nos. 2,6,7 and 11.
i) Unexplained delay in lodging First Information
Report is fatal to the prosecution case;
ii) When investigation is slipshod, benefit must go
to the accused;
iii)Unexplained delay in recording statement of eye
witnesses creates doubt upon the prosecution
case;
iv) Testimony of an interested witness needs careful
and close scrutiny;
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
44v) The evidence of a witness full of material
contradictions on vital aspects has to be
rejected;
vi) No interference in appeal against acquittal if two
views are possible;
vii) Proof of motive though not necessary
if there is direct evidence, the absence of motive
is relevant in deciding complicity of the accused
in the commission of crime.
viii) Failure to prove motive assumes
importance if there are other circumstances
creating doubt about prosecution case.
ix) Death sentence is to be imposed in rarest
of rare case.
21. The following propositions emerge from the
authorities relied upon by Mr. Khan, learned Spl. P.P..
i) Normal discrepancies in the evidence of the
witnesses are not fatal to the prosecution case;
ii) The medical evidence need not always be
treated as sacrosanct;
::: Downloaded on - 12/09/2013 11:54:43 :::
Bombay
Hig
h Court
45iii) Maxim “Falsus in uno falsus in omnibus” is
not applicable in India;
iv) If there is cogent and strong evidence, mere
wrong recording of time of lodging of First
Information Report is not fatal to the prosecution
case;
v) Failure to name one or more accused in
FIR is no reason to disbelieve the evidence of eye
witness if it is trustworthy;
vi) Relationship is not a factor which would
affect the credibility of a witness;
vii) Mere presence in an unlawful assembly
can not render a person liable for the offence
unless he shares common object;
viii) Statement of a witness recorded by a
Magistrate under Section 164 Cr.P.C. can be taken
into consideration to corroborate the evidence of a
witness in committing court.
ix) The evidence of a hostile witness need not
be rejected in toto;
x) The conviction can be based on extra judicial
::: Downloaded on - 12/09/2013 11:54:44 :::
Bombay
Hig
h Court
46confession, if it is made voluntarily, without
coercion, influence or pressure;
xi) Evidentiary value of extra judicial confession
must be judged having regard to the circumstances
in which it was made and the credibility of the
witness who testifies thereto;
xii) Confession can be made even to a private
person or a Magistrate.
22. We now proceed to analyse the prosecution
evidence.
We shall first deal with the evidence of the eye
witnesses examined by the prosecution to prove complicity
of the accused in the crime. The prosecution examined five
witnesses claiming to be eye witnesses viz. Mukesh Pusam
(P.W.2), Suresh Khandate (P.W.3), Dinesh Dhande
(P.W.19), Mahadeo Zhanzad (P.W.20) and Premlal Walke
(P.W.22). We shall separately deal with the evidence of
Bhaiyalal Bhotmange (P.W.17) who lodged first information
report. According to the prosecution itself, Bhaiyalal
Bhotmange is not an eye witness to the actual incident of
assault on the deceased and it is the case of Bhaiyalal
::: Downloaded on - 12/09/2013 11:54:44 :::
Bombay
Hig
h Court
47Bhotmange himself that after seeing the crowd near his
house he ran away from the spot.
23. Mukesh Pusam (P.W.2) deposed that on 29.9.2006
at 6.00 p.m. to 6.30 p.m. he was present in front side
courtyard of his house. He heard shouts of accused no. 8
Jagdish and saw that 1012 persons were standing in front of
the house of Surekha. Out of them he identified accused
who deposed about investigation carried by each one of
them and through the evidence of these witnesses
contradictions and omissions in the complaint visavis the
statements recorded by the respective witnesses have been
proved by the accused. The prosecution also examined Shri
Pradip Ladekar (P.W.35), the Judicial Magistrate, First
Class, Mohadi, who had recorded the statements under
Section 164 of Cr.P.C. of the witnesses at the instance of
CBI. His evidence proves that he recorded the statements
of Mahadeo Zanzad (P.W.20), Premlal Walke (P.W.22), Anil
Lede (P.W.10), Suresh Khandate (P.W.3) and Mukesh
Pusam (P.W.2).
41. Insofar as the submission advanced on behalf of
the accused that there has been considerable delay in
recording the statements of the witnesses and more
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
107particularly of the eye witnesses is concerned it is to be
noted that unfortunately the crime was not investigated by
local police as well as by State CID and as such State
Government handed over the investigation to the CBI only
on 20.11.2006 although the crime was committed on
29.9.2006. The delay is , therefore, inevitable. Moreover,
having regard to the situation prevailing in the village
Khairlanji soon after incident it can be safely inferred that
in view of the indiscriminate arrests made by the local
police the witnesses were not ready to come forward to give
statements which was quite natural because of the fear that
they might be arrested in connection with the crime.
Therefore, considering the situation existing in the village
Khairlanji after the incident till the CBI took over the
investigation we are of the considered opinion that the
delay by itself would not be a factor to discredit the version
of the eye witnesses. We have tested the evidence of the eye
witnesses on the touch stone of probabilities having regard
to the situation prevailing in the village soon after the
incident upon reappreciation of the entire evidence we
find that the conviction recorded by the learned trial Judge
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
108who have been convicted by the learned trial Judge for the
offences under Sections 302 read with Section 149 of Indian
Penal Code, Section 148 read with Section 149 of the Indian
Penal Code and 201 of the Indian Penal Code does not
deserve any interference. At this stage, we would like to
quote what the Apex Court observed in the case of Krishna
Mochi and others vs. State of Bihar (2002 Supreme Court
Cases (Criminal) 1220. The Supreme Court observed thus;
“ Thus, in a criminal trial a Prosecutor is faced
with so many odds. The Court while
appreciating the evidence should of lose sight
of these realities of life and cannot afford to take
an unrealistic approach by sitting in an ivory
tower. I find that in recent times the tendency to
acquit an accused easily is galloping fast. It is
very easy to pass an order of acquittal on the
basis of minor points raised in case by a short
judgment so as to achieve the yardstick of
disposal. Some discrepancy is bound to be there
in each and every case which should not weigh
with Court so long it does not materially affect
the prosecution case. In case discrepancies
pointed out are in the realm of pebbles, the
Court should tread upon it, but if the same are
boulders, the Court should not make an attempt
to jump over the same. These days when crime is
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
109looming large and humanity is suffering and the
society is so much affected thereby, duties and
responsibilities of the courts have become much
more. Now the maxim “ Let hundred guilty
persons be acquitted, but not a single innocent
be convicted” is, in practice, changing the world
over and courts have been compelled to accept
that “society suffers by wrong convictions and it
equally suffers by wrong acquittals”. I find that
this Court in recent times has conscientiously
taken notice of these facts from time to time. In
the case Inder Singh vs. State (Delhi Adm.)
Krishna Iyer, J. laid down that: (SCC P. 162, para
2) “Proof beyond reasonable doubt is a
guideline, not a fetish and guilty man cannot get
away with it because truth suffers some infirmity
when projected through human processes.” In
the case of State of U.P. vs. Anil Singh it was held
that a Judge does not preside over a criminal trial
merely to see that a guilty man does not escape.
One is as important as the other. Both are public
duties which the Judge has to perform. In the
case of State of W.B. vs. Orilal Jaiswal it was held
that justice cannot be made sterile on the plea
that it is better to let a hundred guilty escape
than punish an innocent. Letting the guilty
escape is not doing justice, according to law. In
the case of Mohan Singh vs. State of M.P. It was
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
110held that the courts have been removing chaff
from the grain. It has to disperse the suspicious
cloud and dust out the smear of dust as all these
clog the very truth. So long chaff, cloud and dust
remain, the criminals are clothed with this
protective layer to receive the benefit of doubt.
So it is a solemn duty of the courts, not to merely
conclude and leave the case the moment
suspicions are created. It is the onerous duty of
the court, within permissible limit to find out the
truth, it means on one hand no innocent man
should be punished but on the other hand to see
no person committing an offence should get scot
free. If in spite of such effort suspicion is not
dissolved,it remains writ at large, benefit of
doubt has to be credited to the accused.”
We would like to quote what the Apex Court has
observed in the case of State of Panjab vs. Jagir Singh Baljit
Singh and Karam Singh (AIR 1973 S.C. 2407). The Apex
observed in para 23 as under:
“ A criminal trial is not like a fairy tale
wherein one is free to give flight to one's
imagination and phantasy. It concerns itself
with the question as to whether the accused
arraigned at the trial is guilty of the crime
with which he is charged. Crime is an event
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
111in real life and is the product of interplay of
different human emotions. In arriving at the
conclusion about the guilt of the accused
charged with the commission of a crime, the
court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth
and the animus of witnesses. Every case in
the final analysis would have to depend upon
its own facts. Although the benefit of every
reasonable doubt should be given to the
accused, the courts should not at the same
time reject evidence which is ex facie
trustworthy on grounds which are fanciful or
in the nature of conjectures.”
We have reappreciated the evidence bearing in
mind the above observations of the Apex Court and have
come to the conclusion that the conviction of the accused
nos. 1,2,3, 6 to 9 and 11 for the offences for which they have
been convicted does not warrant interference by this court.
42. In our opinion, the prosecution has been able to
establish that accused 1 to 3, 6 to 9 assaulted Surekha,
Priyanka, Roshan and Sudhir with sticks, cycle chains, fists
and kicks blows and caused their injuries which resulted in
their death. All the accused shared common object to
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
112commit murders of Surekha, Priyanka, Roshan and Sudhir.
The prosecution has also been able to establish that the
accused nos. 2,3 and 6 to 9 were involved in disposal of the
dead bodies by carrying them in bullock carts towards
Kandri.
43. We shall now deal with Criminal Appeal No.
171/2009 preferred by Central Bureau of Investigation
challenging acquittal of respondents/accused for the
offences under Sections 3(1)(x), 3 (1)(xi), 3(2)(v) and 3(2)(vi)
of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989 ( “The Act” in short).
Before considering the rival submissions we deem it
appropriate to quote the above referred provisions. They
read thus;
“3(1)(x) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribeintentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
3(1)(xi)—Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe assaults or uses force to any woman belonging to a Scheduled Caste or a
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
113Scheduled Tribe with intent to dishonour or outrage her modesty;
3(2)(v) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe—commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
3(2)(vi)—Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence;
43A. The learned trial Judge held that the assault on
four deceased was not on the ground that they belonged to
Scheduled Caste but the motive for the commission of the
offence was because the accused felt that Surekha and
Priyanka falsely implicated them in the offence of assault
on Siddharth Gajbhiye. The learned trial Court also placed
reliance upon the Judgment of this Court in which it has
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
114been held that the First Information Report should disclose
ingredients of offence under the Act failing which crime can
not be registered or investigated. No doubt the earlier view
taken by this Court has been reversed by the Full Bench of
this court placing reliance upon the Judgment of the Apex
Court in the case of Ashabai Machindra Adhagale vs. State
of Maharashtra and others (supra). However, the question
which arises for consideration is whether even if the
prosecution evidence to which we have made reference
hereinabove is accepted the offences under Section 3(1)(x),
3(1)(xi), 3(2)(v) and 3(2)(v) of the Act are made out against
the accused.
43B. In order to attract Section 3(1)(x) of the Act it is
necessary that the accused should insult or intimidate a
member of a Scheduled Caste or Scheduled Tribe in any
public place with intention to humiliate him/her. In the
present case, the whole object of the accused was to take
revenge against Surekha and Priyanka because the accused
believed that they were falsely implicated in the assault of
Siddharth Gajbhiye by them and in the process they
committed not only murders of Surekha and Priyanka but
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
115of Sudhir and Roshan. Therefore, it is difficult to hold that
accused intended to insult Surekha or other deceased who
admittedly were belonging to Scheduled Caste.
43C. In our opinion, there was no intention on the part
of the accused to insult the deceased. In order to attract
Section 3(1)(xi) of the Act, it is necessary that the accused
not belonging to Scheduled Caste or Scheduled Tribe must
use force to any woman belonging to a Scheduled Caste or a
Scheduled Tribe with intent to dishonour or outrage her
modesty. In the present case as stated above, the whole
object was to take revenge against Surekha and Priyanka
because the accused believed that they were falsely
implicated and as such it is difficult to accept the
prosecution version that offence under Section 3(1)(xi) of
the Act is made out against the accused. Moreover, the
prosecution has not challenged the acquittal of the accused
for the offence punishable under Section 354 of the Indian
Penal Code.
43D. In order to attract Section 3(2)(v) of the Act a
person not belonging to Scheduled Caste or Scheduled
Tribe should commit offence under Indian Penal Code
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
116punishable imprisonment for a terms of ten years or more
against a person or property on the ground that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member. In the
present case, it is the case of the prosecution itself that the
accused with a view to take revenge against Surekha and
Priyanka assaulted them and family members of Surekha
causing their death. Merely because the deceased belong to
Scheduled Caste it can not be said that ingredients of
Section 3(2)(v) of the Act are made out. The prosecution
evidence does not establish that the accused committed
murder of Surekha and other deceased because they
belonged to Scheduled Caste and, therefore, in our
considered opinion, ingredients of Section 3(2)(v) of the Act
are not made out against the accused.
43E. In order to attract Section 3(2)(vi) of the Act it is
necessary for the prosecution to prove that a person not
being a member of Scheduled caste or Scheduled Tribe
knowingly or having reason to believe that an offence has
been committed under this chapter should cause
disappearance of the evidence of the commission of that
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
117offence with the intention of screening the offender from
legal punishment or with intention gives any information
respecting the offence which he knows or believes to be
false. We have already held that the offences under Section
3(1)(x), 3(1)(xi) and 3(2)(v) of the Act are not made out
against the accused and, therefore, necessary sequitur is
that the offence under Section 3(2)(vi) of the Act is not made
out against the accused.
43F. At this stage we would like to deal with the
authorities relied upon by Mr. Khan in support of his
submission that the offences under the Scheduled Castes/
Scheduled Tribes Act are made out against the accused. In
the case of Ashabai Machindra Adhagale (supra) the Apex
Court held that merely because in the FIR caste of the
accused is not mentioned the proceedings could be
quashed and whether the accused belongs to Scheduled
Caste/ Scheduled Tribe can be gone into in the course of
investigation. In the case of Swaran Singh and others vs.
State (2008 CRI.L.J., 4369) the Apex Court held that calling
the member of Scheduled Caste as 'Chamar' with intent to
insult or humiliate would amount an offence and whether
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
118there was intent to insult or humiliate by using word
'Chamar' would depend on the context in which it was
used. In Bachcha vs. State of U.P. (2008 CRI.L.J. 483)
Allahabad High Court has held that Section 3(2)(v) of the
Act can be pressed into service only for enabling the Court
to pass a sentence of imprisonment for life and fine when
person has been found guilty of committing an offence
under IPC which is punishable with imprisonment of term
of ten years or more and the provision does not prescribe a
substantive sentence. In Vidyadharan vs. State of Kerala
(2004 CRI. L.J., 605) it has been held that mere knowledge
that the modesty of a woman is likely to be outraged is
sufficient to prove the offence under Section 354 of IPC and
intention is not the sole criteria. It has been further held
that the offence under Section 3(1)(xi) of the Act is an
aggravated form of offence under Section 354 IPC. In our
considered opinion, the authorities relied upon by Mr.
Khan do not advance the case of the prosecution. On the
contrary, the fact that the CBI has not challenged the
acquittal of the accused for the offence under Section 354
IPC makes it difficult to uphold the challenge of CBI to the
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
119acquittal of the accused the offence punishable under
Section 3(1)(xi) of the Act inasmuch as the offence under
Section 3(1)(xi) is an aggravated form of offence under
Section 354 of IPC as held in Vidyadharan's case(supra).
43G. We, therefore, find no substance in the appeal
filed by the Central Bureau of Investigation challenging the
acquittal of the respondents/ accused for the offences
punishable under Sections 3(1) (x), 3(1) (xi), 3(2)(v) and 3(2)
(vi) of the Act.
44. We shall now deal with Criminal Appeal No.
170/2009 filed by the CBI challenging imposition of
sentence of life imprisonment on accused nos.1 and 11 on
the ground of inadequacy. We shall also deal with the
aspect whether death sentence awarded to accused nos.
2,3,6,7,8 and 9 deserves to be confirmed. The learned Judge
in paragraph nos. 191 to 217 of the Judgment has dealt with
the aspect of sentences to be imposed on the accused and
has made reference to several authorities relied upon by the
rival parties. The learned trial Judge has not awarded death
sentence to accused nos. 1 and 11 on the ground that they
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
120were aged 23 and 20 years respectively and as such they
were immature. The learned trial Judge has further held
that they could have been emotionally carried away by
presence of their fathers' actions and also could have been
guided by their fathers. The learned trial court further held
that accused no.1 Gopal might have been emotionally
charged as his father was beaten by Siddharth Gajbhiye.
The learned trial Judge has further held that both these
accused were absent for disposal of the dead bodies and
they did not see naked body of Priyanka with serious
injuries.
45. According to the learned trial Judge the
aggravating circumstances against the accused nos. 2,3,
6,7,8 and 9 are as follows:
1) All the convicts came together at the
house of Surekha Bbhotmange to commit
crime.
2) The accused came with sticks and iron
chains to commit rioting.
3) All the convicts formed an unlawful
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
121assembly with common object to commit rioting
and murders of Surekha Bhotmange and her
family members. Then they acted in unison in
prosecution of common object of their unlawful
assembly.
4) Convicts were furious and were
shouting to search and kill other members of
family of Surekha Bhotmange after killing
Surekha Bhotmange.
5) Victims were unarmed and two of the
victims were ladies.
6) Killings made one after the other by
chasing and surrounding each of the victims.
7) Victims and specially Sudhir, Roshan
and Priyanka did not cause any provocation
at the time of incident.
8) No justification for killing Sudhir
Bhotmange and Roshan Bhotmange who never
caused any harm to convicts.
9) All the victims were severely beaten to
death with many injuries on their persons.
Thereby process of death of each of the victims,
was slow and painful.
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
12210) There was depravity in the acts of
convicts which includes
a) killing of unarmed Surekha by all the male
convicts with brutality.
b) convicts shouted to search for others.
c) Roshan pleaded his innocence, but he was not
spared. He was chased and killed.
d) Two victims were searched and killed.
e) Accused were threatening others, so that none
should come to rescue of victims and thereby
enjoyed killings.
f) Accused no.2 Sakru and accused No. 8 Jagdish
made extra judicial confession without any
hesitation showing no remorse for committing
such heinous crime.
11. Convicts acted in revolting manner by
killing the victims in presence of mob, without
fear of anyone and acted as if they did heroism.
12. Accused Nos. 2,3,6 to 9 removed clothes
of Priyanka before disposing her severely injured
dead body and thereby wanted to get
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
123satisfaction to their sexual eyes at such extreme
circumstances.
45A. The learned trial court further held that victims
were unarmed. Two of them were women and one of them
was physically handicapped. One of the victim was aged 19
years and they were brutally assaulted with sticks, cycle
chains and with kicks and fist blows. According to the
learned trial Judge the mitigating circumstances are as
under:
a) There was no prior conspiracy to kill all
the four victims;
b) There was no caste hatred for these
killings;
c) First Victim Surekha Bhotmange set fire
to her own cattle shed, which might have
provoked the accused to commit the crime;
d) Accused extinguished the fire;
e) Accused claimed that they were falsely
implicated in crime of beating of Siddharth
Gajbhiye by Surekha and Priyanka;
::: Downloaded on - 12/09/2013 11:54:46 :::
Bombay
Hig
h Court
124f) They are ordinary villagers with no
criminal past; and
g) Their families depend on their earnings.
46. In the case of Bachansingh vs. State of Punjab
(AIR 1980 Supreme Court, 898) the Apex Court has
observed ;
i) The extreme penalty of death may not
be inflicted except in gravest cases
of extreme culpability;
ii) Before opting for the death penalty,
the circumstances of the offender
also require to be taken into
consideration along with the
circumstances of the crime;
iii)Life imprisonment is the rule and
death sentence is an exception;
iv) A balance sheet of aggravating and
mitigating circumstances has to be
drawn up and in doing so the
mitigating circumstances have to be
accorded full weightage and a just
balance has to be struck between the
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
125aggravating and the mitigating
circumstances before the option is
exercised.
47. In Machhi Singh and others vs. State of Punjab,
(1983) 3 SCC 470 the Apex Court has held that for deciding
whether the crime is rarest of rare, following factors be
considered which are; i) manner of commission of murder;
ii) motive for commission of murder, iii) anti social or
socially abhorrent nature of the crime and iv) magnitude of
the crime and personality of the victim of murder.
48. The learned trial Judge in the Judgment has
mentioned the aggravating and mitigating circumstances to
which we have already made reference. Insofar as
aggravating circumstance no. 10 ( f ) is concerned, we have
already disbelieved the extra judicial confessions made by
accused nos. 2 and 8 and, therefore, the said circumstance
can not be used against the accused as aggravating
circumstance.
49. After considering the aggravating and mitigating
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
126circumstances and having regard to the observations made
in Bachansingh case (supra) and the factors which are to be
considered while considering the sentence as laid down in
Machhisingh's case we are of the considered opinion that
case for awarding death sentence to accused nos. 2,3 and 6
to 9 is not made out and, therefore, the accused nos.
2,3,6,7,8 and 9 do not deserve death sentence. The
incident had not occurred on account of caste hatred but
the incident occurred since the accused felt that they were
falsely implicated in the crime of beating Siddharth
Gajbhiye by Surekha and Priyanka. Moreover, there is no
evidence brought on record that the accused have a
criminal record. Considering the nature of the crime and
the circumstances leading to the commission of the crime
and the past record of the accused, we are of the considered
opinion that accused nos. 2,3,6 to 9 do not deserve death
sentence. However, having regard to the manner in which
the four murders were committed we are of the considered
opinion that all the convicted accused deserve sentence of
imprisonment exceeding 14 years. This Court in the case of
Dipak Vasant Kale vs. State of Maharashtra, 2006 ALL
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
127MR(Cri), 686 set aside death sentence and imposed
sentence of life imprisonment placing reliance upon
various Judgments of the Apex Court with a further
direction that the accused should not be released unless
he completes actual term of imprisonment of twenty years.
In the said Judgment reliance was placed upon various
Judgments of the Apex Court. The Apex Court in the case of
Ram Anup Singh and others vs. State of Bihar (2002) 6 SCC,
686 set aside the death sentence awarded by the trial
court and confirmed by the High Court to the appellants
and sentenced them to suffer imprisonment for life with a
condition that they shall not be released before completing
actual term of twenty years including the period already
undergone by them. Similar order was passed by the Apex
Court in the case of Shri Bhagwan vs. State of Rajashthan
(2001) 6 Supreme Court Cases, 296). In Jayawant
Dattatraya Suryarao vs. State of Maharashtra (AIR 2002
Supreme Court, 143) the Apex Court set aside the death
sentence imposed on the appellant and sentenced him to
undergo imprisonment for life with a further direction that
the accused would not be entitled to premature release.
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
128The Apex Court in the case of Kamalnath vs. State of Tamil
Nadu (2005 Supreme Court Cases, 1121) after confirming
the conviction of the appellant for various offences
including the murder held that any remission of sentence
or amnesty on a special occasion announced by the Central
or the State Government shall not apply to the sentence of
imprisonment imposed on the accused.
In the case of Dilip Tiwari and another vs. State of
Maharashtra, ( 2010 Cri. L.J. 905, ) the Apex Court set aside
the death sentence imposed on the appellants and
sentenced them to life imprisonment with a further
direction that two main accused who had assaulted
helpless ladies should not be released unless they complete
25 years of actual imprisonment. The Apex Court made
reference to the earlier Judgments in the case of Haru
Ghosh vs. State of West Bengal (2009 AIR SCW 6007) and in
the case of Swami Shradhanand alias Murali Manohar
Mishra vs. State of Karnataka (2008 AIR SCW 5110) for
adopting this course.
Having regard to the manner in which the
convicted accused committed the murder of four persons
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
129including two persons against whom they had no grudge,
we are of the considered opinion that although the accused
do not deserve death sentence, the interest of justice would
be served by directing that all the accused should not be
released until they complete twenty five years of actual
imprisonment including the period of imprisonment
already undergone.
50. The learned trial Judge awarded separate
sentences on accused nos. 1 to 3, 6 to 9 and 11 for
committing murders of Surekha Bhotmange, Sudhir
Bhotmange, Roshan Bhotmange and Priyanka Bhotmange.
We do not propose to award separate sentences on the said
accused for committing murders of Surekha Bhotmange,
Sudhir Bhotmange, Roshan Bhotmange and Priyanka
Bhotmange. In out opinion, interest of justice would be
served by sentencing each of the accused to life
imprisonment and to pay a fine of Rs. 5000/ each in default
to undergo rigorous imprisonment for one year subject to
the rider that each of the accused shall undergo actual
imprisonment for the period of twenty five years.
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
13051. In the light of the above discussion, we dispose of
the Reference and the Appeals filed by the accused and CBI
in terms of the following order.
(i) The reference made by the learned trial Judge is
rejected. Accused nos. 1 to 3, 6 to 9 and 11 are sentenced to
life imprisonment and to pay a fine of Rs. 5000/ each in
default to undergo rigorous imprisonment for one year with
further direction that each of the accused shall not be
released until he completes twenty five years of actual
imprisonment including the period of imprisonment
already undergone.
(ii) The conviction of accused nos. 1 to 3, 6 to 9 and
11 and the sentences imposed on them for the offence
punishable under Section 148 read with Section 149 of the
Indian Penal Code imposed by the trial Judge are
maintained.
(iii) The conviction and sentences imposed on accused
nos. 2,3, and 6 to 9 for the offence punishable under section
201 of the Indian Penal Code are maintained.
All the sentences are ordered to run concurrently;
All the accused are entitled to set of the period of
::: Downloaded on - 12/09/2013 11:54:47 :::
Bombay
Hig
h Court
131imprisonment already undergone in terms of Section 428 of
Cr.P.C..
The order passed by the learned trial Judge
insofar as the disposal of the property is concerned is
maintained.
Criminal Confirmation Case No. 4/2008 and
Criminal Appeal Nos. 748/2008, 763/2008, 170/2009 and
171/2009 stand disposed of in the aforesaid terms.