1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 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 . …..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: District: Bhandara ( State). ...Respondents BombayMr. Ejaz Khan, Spl. P.P. For appellant. High Court Mr. Sudip Jaiswal, Advocate for respondent nos. 1,5 and 6. Mr. N.S.Khandewale, Advocate for respondent nos. 2,3 and 4.

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Criminal Appeal No. 748/2008

1. Shatrughna s/o Isram Dhande Aged about 40 years. Occupation: Agricultural Labourer. (Original accused no. 3)

2. Vishwanath s/o Hagru Dhande Aged 55 years. Occupation: Agricultural Labourer. (Original accused no. 6)

3. Ramu s/o Mangru Dhande Aged 42 years. Occupation; Agricultural Labourer. (Original accused no.7)

4. Shishupal s/o Vishwanath Dhande, aged 20 years. Occupation: Agricultural Labourer. (Original accused no. 11)

(All the appellants are R/o: Village Khairlanji, Tah. , Distr.Bhandara.)

…....Appellants.

.versus.

The Central Bureau of Investigation, through its Dy.S.P., C.B.I., S.C.B., Chennai, Camp at Bhandara. Bombay High…....Respondent. Court

Mr. N.S.Khandewale Advocate for the appellants. Mr. Ejaz Khan, Spl. P.P. for respondent.

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Criminal Appeal No. 763/2008

1. Gopal Sakru Binjewar Aged about 23 years, Occupation: Cultivator, R/o: Khairlanji, Tahsil Mohadi, District: Bhandara. (Original accused no. 1)

2. Sakru Mahagu Binjewar Aged about 49 years, Occupation: Cultivator, R/o: Khairlanji, Tahsil Mohadi, District: Bhandara. (Original accused no. 2)

3. Jagdish Ratan Mandlekar Aged about 51 years, Occupation: Cultivator, R/o: Khairlanji, Tahsil Mohadi, District: Bhandara. (Original accused no.8)

4. Prabhakar Jaswant Mandlekar Aged about 27 years, Occupation: Cultivator, R/o: Khairlanji, Tahsil Mohadi, District: Bhandara. (Original accused no. 9) …....Appellants. .Versus. BombayCentral Bureau of Investigation, High Court 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.

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Criminal Appeal No. 170/2009

Central Bureau of Investigation, Special Crime Branch, Chennai Camp O/o: SP, CBI, ACB, 3rd Floor, Block – C, CGO Complex, Seminary Hills, Nagpur Through 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 Camp BombayO/o. SP, CBI, ACB, 3 rd Floor, High Court Block ­C, CGO Complex, Seminary Hills, Nagpur, Through PSI, CBI, Nagpur. …....Appellant.

.versus.

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1. Gopal Sakru Binjewar, Aged about 23 years, Occupation: Labour.

2. Sakru Mahagu Binjewar Aged about 49 years, Occupation; Labour.

3. Shatrughan Isram Dhande, Aged about 40 years, Occupation: Cultivator.

4. Vishwanath Hagru Dhande Aged 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.

7. Prabhakar Jaswant Mandlekar, aged abot 27 years, Occupation: Cultivator.

8. Shishupal Vishwanath Dhande, Aged about 23 years, Occupation: Cultivator. All residents of Village Khairlanji, Tah. Mohadi, Distt. Bhandara. Bombay High …..Respondents. Court ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ 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.

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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

Bombayand 11 have been convicted High and sentenced Court 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:

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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 Bombay of Priyanka High payment of fine of Rs.2000/­ Court 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.

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1 to 3 and 148 r/w 149 R.I. for three years and to 6 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 BombayInvestigation challenging acquittal of accused nos. 1 to 3, 6 High Court 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

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be 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 Bombaywas assaulted by some High villagers. On hearing the newsCourt of assault Surekha Bhotmange and Priyanka rushed there and

brought Sidharth to their house. After two days Sidharth

lodged report at Police Station pursuant to

which Crime No. 52/06 was registered. Surekha Bhotmange

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gave 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 Bombayby the accused and he was High assaulted by giving Court 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

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nearby 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 BombayDhusala and told him about the incident. Siddharth made a High Court 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

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to 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 Bombayinquest panchanamas of these dead bodies and the deadHigh Court 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

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the investigation.

8. By notification dated 20.11.2006 the State of

Maharashtra requested the Union of 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 Bombayinvestigation, CBI submitted High charge sheet againstCourt 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

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Magistrate, 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 Bombayappreciation of the evidenceHigh led by the Court 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

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Judge 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. BombayMukesh High Aasaram Pusam( P.W.2); Court 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

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be 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. Bombayvi) HighThe medical evidence is at variance Court with ocular testimony and, therefore, no

reliance can be placed on the eye witnesses

examined by the prosecution.

vii) The death sentence awarded to

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accused 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 Bombay HighAIR 1993 SC 2426. Court 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

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viii) 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 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 Bombayaccused nos. 2,6,7 and 11 assailed conviction and sentences High Court imposed on these accused, inter alia, on the following

grounds.

i) There is unexplained and

inordinate delay of 24 to 26 hours in lodging

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F.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 Bombayrecording High the statements of theCourt witnesses, more particularly the eye witnesses which

throws serious doubt on the prosecution

case.

v) The extra judicial confessions

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alleged 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 Bombayshow weapons i.e. sticks and bicycle chains High Court 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.

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ix) 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 Bombay 2008 ALL MR (Cri.) 375 High Court

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.

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vii) 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 ((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 Bombay Jha and others. High Court (2009) 6 Supreme Court Cases,457.

xvi) State of Maharashtra vs. Pralhad Champatrao Deshbhratar and others. 2005(1) MHLJ 784

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xvii) State of M.P. vs. Bacchudas @ Balram & others. (2007)9 Supreme Court Cases, 135.

xviii) Lakhwinder Singh and others vs. State of Punjab AIR 2003 Supreme Court 2577.

xix) Brijpal Singh vs. State of M.P. 2003 AIR SCW 2480.

xx) State of Andhra Pradesh vs. S. Swarnalatha and others. IV(2009) CCR 286 (SC).

• xxi) Dhanapal vs. State by Public Prosecutor , Madras IV(2009) CCR 243(SC)

xxii) Jai Singh & others. vs. The State of 2007(5)SCAL 658.

xxiii) Vijaybhai Bhanabhai Patel vs. Navnitbhai Nathubhai Patel and other, (2004) 10 Supreme Court Cases 583.

xxiv) Babu and others v. State of U.P. AIR 1983 Supreme Court 308.

xxv) Sunil Chokhoba Shambarkar & another vs. State of Maharashtra Bombay 2008 ALL MR (Cri) 360High Court xxvi) State of Rajashthan vs. Netrapal & others. (2007) 4 Supreme Court Cases, 45.

xxvii) Haru Ghosh vs. State of West Bengal IV(2009)CCR 7 (SC).

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xxviii) Sushil Kumar vs. State of Punjab IV(2009) CCR 193 (SC).

xxix) Lehna vs. Stateof Haryana (2002) 3 Supreme Court Cases, 76.

xxx) Jagjit Singh alias Jagga vs. State of Punjab (2005) 3 Supreme Court Cases 689.

xxxi) Dhananjay Shanker Shetty vs. State of Maharashtra AIR 2002 Supreme Court, 2787.

xxxii) Ramdas And others vs. State of Maharashtra (2007) 2 Supreme Court Cases, 170

13. Mr. Khan, learned Special Public Prosecutor

appearing on behalf of the CBI while supporting the

impugned Judgment and order submitted that accused nos.

1 and 11 ought to have been awarded death sentence and

the reasons given by the learned trial court for awarding life

imprisonment are patently unsustainable in law. He further Bombaysubmitted that the acquittal of the accused nos. 1 to 4, 6 to 9 High Court and 11 for the offence punishable under Section 3(1)(x), 3(1)

(xi) and 3(2)(v) and (vi) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities ) Act, 1989 is

patently unsustainable in law inasmuch as the prosecution

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has clearly established the ingredients of the said offences

against the accused. Therefore, the acquittal of the said

accused for the offences punishable under the said

provisions is unsustainable and is liable to be set aside. He

further submitted that the investigation of the crime has

been carried out by CBI by following scientific methods

and only after verifying the complicity of the accused, CBI

filed the charge sheet against the accused. He further

submitted that the evidence of the eye witnesses P.W.2

Mukesh Pusam, P.W.3 Suresh Khandate, P.W.19 Dinesh

Dhande and P.W.22 Premlal Walke inspire confidence and

is in consonance with their statements before the CBI and

the Magistrate and, therefore, there is absolutely no reason

to discard their evidence. He further submitted that the

delay in lodging report by P.W. 17 Bhaiyyalal Bhotmange is

not fatal inasmuch as he was frightened after seeing the Bombaymob near his house which made him to run away from the High Court spot. He further submitted that the evidence of the hostile

witness P.W.20 Mahadeo Zanzad to some extent

corroborates the version of the other eye witnesses and,

therefore, to that extent his evidence has to be considered,

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more particularly having regard to the fact that the principle

of falsus in uno falsus in omnibus is not applicable in India.

He further submitted that extra judicial confessions made

by the accused nos. 2 and 8 to P.W.10 Anil Lede, P.W.15

Gopichand Mohature and P.W.16 Sunil Lede inspire

confidence and there is absolutely no reason to disbelieve

their extra judicial confessions. He further submitted that

the contradictions and omissions in the evidence of the eye

witnesses are on minor aspects which do not discredit their

entire testimony. He , therefore, submitted that the

Judgment and Order passed by the learned trial court be

modified by convicting accused nos. 1,2,3,4,6 to 9 and 11 for

the offence punishable under Section 3(1)(x), 3(1)(xi) and

3(2)(v) and (vi) of the S.C. S.T. Act and the accused nos. 1

and 11 be awarded death sentence.

In support of his submission, Mr. Khan relied Bombayupon the following judgments; High Court i) Ashabai Machindra Adhagale vs. State of Maharashtra and others. AIR 2009 Supreme Court, 1973

ii) Swaran Singh and others vs. State 2008 CRI L.J. 4369.

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iii) Bachcha vs. State of U.P. 2008 CRI.L.J. 483.

iv) Vidyadharan vs. State of Kerala 2004 CRI. L.J. 605.

v) Shiva Karam Payaswami Tewar .v. State of Maharashtra. AIR 2009 Supreme Court, 1692.

vi) Mohd. Azad @ Samin v. State of West Bengal. AIR 2009 Supreme Court, 1307.

vii) Gura Singh vs. State of Rajashthan (2001) 2 Supreme Court Cases, 205.

viii) Kailash vs. State of M.P. (2006)11 Supreme Court Cases 420.

ix) Ravi Kumar Vs. State of Punjab (2005) 9 Supreme Court Cases, 315.

x) State of U.P. vs. Premi & others. (2003) 9 Supreme Court Cases,12.

xi) State of Rajasthan vs. Laxman Singh and others. (2002) 10 Supreme Court Cases, 65. Bombay High Court 13A. In rejoinder, Mr. Jaiswal and Mr. Khandewale

submitted that the offences under The Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

are not made out against the accused. Learned counsel

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further submitted that accused nos. 1 and 11 do not deserve

death sentence. Learned counsel further submitted that not

only accused nos. 1 and 11 do not deserve death sentence

but other accused who have been sentenced to death also

do not deserve death sentence since the case can not be

termed as rarest of rare case.

14. We have considered the rival submissions and perused the record and the judgments relied upon by the learned counsel for the accused and learned Spl. P.P..

15. Before we analysis the evidence of the eye

witnesses we would like to deal with the medical evidence

tendered by the prosecution to prove that all the four

deceased viz. Priyanka Bhaiyalal Bhotmange, Roshan

Bhaiyalal Bhotmange, Sudhir Bhaiyalal Bhotmange and

Surekha Bhaiyalal Bhotmange died homicidal death. The Bombayprosecution has examined High Dr. Avinash JohnCourt 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

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mortems. 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 Bombay1/3 frontal aspect 3 x 1 cm. In size. High Court vi) Contusion over mandible middle part 3 x 1 cm. In size.

vii) Contusion over the left hand 4 x 4 cm. In size.

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viii) 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 Bombaythe following injuries. High Court 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.

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iii) 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 Bombayof the ankle 2 x 2 cm in size. High Court 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

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right 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 Bombayfrontal bone beneath external injury no. 8. High Court

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

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confirmed 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) Bombay3 x 2 cm. b) 2 x 1 cm right side. High Court 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.

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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, Bombayhe issued post mortem High note Exh. 122. He confirmedCourt 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

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conducted 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 Bombaycm. High Court 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

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cm. 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; Bombayi) Haemorrhage High at left temporal Court 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.

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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. Bombay17 of the post mortem report of Surekha Bhotmange were High Court 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

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injury 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 Bombaymentioned in post mortem reports of Roshan and Sudhir High Court 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

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dates. 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 Bombayhad prepared final report High of post mortem after the dead Court 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

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after 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 Bombayafter 24 hours. In further cross examination he admitted High Court 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

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post 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 Bombaybeen able to prove thatHigh Priyanka Bhotmange, Court Roshan Bhotmange, Sudhir Bhotmange and Surekha Bhotmange

died homicidal death.

18. The learned counsel for the accused and learned

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Special 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 Bombayaccused are entitled to acquittal. High Court

iii) Accused can not be convicted, if the prosecution evidence is tainted.

iv) Unexplained delay in recording

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statements 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 Bombayto the accused; High Court 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;

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v) 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..

Bombayi) Normal discrepancies in the evidence of the High Court witnesses are not fatal to the prosecution case;

ii) The medical evidence need not always be treated as sacrosanct;

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iii) 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 Bombaywitness in committing court. High Court

ix) The evidence of a hostile witness need not be rejected in toto;

x) The conviction can be based on extra judicial

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confession, 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 Bombay(P.W.22). We shall separatelyHigh deal with the Court 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

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Bhotmange 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

No.1 Gopal, accused no.2 Sakru, accused no.3 Shatrughna,

accused no. 6 Vishwanath, accused no. 7 Ramu, accused no.

8 Jagdish and accused no. 9 Prabhakar. Accused no. 8

Jagdish gave abuses and said to Surekha Bhotmange to

come out of her house. Surekha then came out of her house

and set fire to her cattle shed to ward off the accused. Then

she ran away towards triangular open space at back side of

her house. Some accused put off fire, while some chased Bombayher. Accused no. 8 Jagdish caught Surekha, pulled her hair High Court and dragged her to a nearby drain and dipped her in it 2­3

times. By then other aforesaid accused reached there. All

those seven accused then beat Surekha by fists, kicks and

with chains and killed her. They then brought the dead

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body to Dhusala road situated nearby. Then those persons

shouted to kill other members of Surekha's family. Sudhir

Bhotmange then came out of his house in underwear and

ran towards Dhusala road. Then those accused chased him

and thereafter dragged him near dead body of Surekha.

After that those accused found Roshan Bhotmange at cattle

shed of Ramdas Khandate. Roshan told them that he did

not cause harm to anyone and so he should not be beaten.

Roshan, then ran towards bore­well. Those accused chased

him and caught him near bore – well and beat him by

bicycle chains and sticks and killed him. Thereafter, those

accused searched for Priyanka. This witness then heard

shouts of Priyanka in agony of being killed. Thereafter,

accused No. 3 Shatrughna and accused no. 7 Ramu dragged

dead body of Roshan while accused no. 2 Sakru and

accused no.8 Jagdish dragged dead body of Priyanka near Bombayother two dead bodies. Thereafter, accused no. 7 Ramu and High Court accused no. 9 Prabhakar shouted that if anyone would tell

anything against them then they would meet the same fate

as those four persons. Thereafter, this witness came to his

house on being frightened. After some time he saw that

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accused no. 8 Jagdish was riding a bullock­cart in which

those dead bodies were kept. He also saw accused no. 2

Sakru, accused no. 3 Shatrughna, accused no. 7 Ramu and

accused no. 9 Prabhakar followed that bullocks cart which

was taken towards village Kandri.

23A. In cross­examination he admitted that he did not

see Sudhir, Roshan and Priyanka being beaten and killed.

In cross­examination it was suggested to him that on seeing

some persons in front of the house Surekha set fire to her

cattle shed and before that these persons were arguing with

Surekha. It was also suggested by the defence to the

accused that when he heard shouts of Surekha he was

standing in front of his house as mentioned in the

statement recorded by the Judicial Magistrate which

suggestion was admitted by the witness. The witness also

admitted that there was little rain and no electric light at Bombaythat time. The witness also admitted that he had contested High Court the election and lost by two votes and at that time accused

had helped the opponent. The witness deposed that he first

heard shouts of Jagdish and then he looked in that

direction and saw 10­12 persons were standing in front of

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the house of Surekha. In cross­examination the omission

vis­a­vis his statement to CBI, CID and learned Judicial

Magistrate, First Class to the extent of presence of 10 to 12

persons was brought on record. Another omission which

was proved by the defence is that Surekha ran towards the

compound which was in opposite side and on the basis of

this defence contended that it was not possible for the

witness to notice Surekha. It has also been brought on

record in the cross­examination that the witness stated to

the learned Magistrate that at that time there was little rain

and no electric light. It was also brought on record that the

witness had not stated as to which of the accused has

assaulted by which weapon viz. stick, cycle chain or by kicks

and fists blows. Another omission vis­a­vis the statement

made to the police which has been proved is that he did not

state that Sudhir came out of the house in underwear and Bombayran towards the road towards his field. However, said fact High Court finds place in the statement made by the witness under

Section 164 Cr.P.C.. Another omission brought on record

vis­a­vis the statement made to CBI is that he had not stated

that accused were searching for Priyanka but this version is

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found in the statement made to the learned Judicial

Magistrate, First Class Mr. Pradip Ladekar (P.W.35) in

which the witness stated that accused were asking where

was her daughter. Having regard to the fact that Priyanka

was admittedly the daughter of Surekha the version of the

witness that the accused were asking for Priyanka needs to

be accepted. Another contradiction in the nature of

omission which has been brought on record is that he had

not stated that accused no. 7 Ramu Dhande had also

threatened other persons of the locality after the incident.

Close scrutiny of the evidence of the above witness though

discloses that there are certain contradictions and

omissions vis­a­vis his earlier statements, in our considered

opinion, same can not be said to be such as to discredit his

version that he was present near his house which is

admittedly situated very close to the house of Bhaiyalal BombayBhotmange (P.W.17). High Court

24. No doubt if the evidence of a witness discloses

material contradictions and omissions vis­a­vis earlier

statement, the testimony of such witness does not inspire

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confidence. In the present case, admittedly after the dead

bodies of four persons were found and investigation was

taken up by the local police, indiscriminate arrests were

made and in all 46 persons were arrested. According to the

State itself, the prosecution did not proceed in the right

direction and, therefore, investigation was handed over to

State CID. Even the State CID did not carry out the

investigation in proper direction and, therefore, ultimately

the State Government handed over the investigation to CBI

which after carrying out investigation sought discharge of

35 persons who were in custody which was granted by the

learned Magistrate. The people in Khairlanji which is a

small village in were frightened and

probably on account of indiscriminate arrests of several

persons from the village people were not ready to come out

with the truth. In this factual background mere delay in Bombayrecording the statements of the witnesses or disclosure of High Court certain facts at a late stage would not be fatal to the

prosecution case. The delay was inevitable because the

investigation of the crime was handed over to CBI on

20.11.2006 and it was only thereafter the CBI could

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investigate the crime. Delay in recording the statements of

the witnesses is fatal to the prosecution case if it is

deliberate with a view to falsely implicate the persons in

commission of the crime. In the present case, upon close

scrutiny of the entire evidence of Mukesh we find it difficult

to accept the defence version that he was not present on the

spot on the date of the incident as deposed by him or that

he was not an eye witness to the incident. No doubt there

are some embellishments in the evidence of this witness.

However, they would not destroy his entire evidence. It is

difficult to accept the defence version that his presence on

the spot is doubtful in view of the statement made by Mr.

Vinayak Susatkar (P.W.25) the first investigation officer who

deposed that his investigation reveals that Mukesh Pusam

left the house on 29th September, 2006. The statement of Mr.

Vinayak Susatkar whose investigation was found to be Bombaytainted by the State itself is not sufficient to discredit the High Court testimony of Mukesh Pusam. Moreover, we are also unable

to accept the defence version that it was not possible for

him to see the incident since there was little rain and

darkness. The incident had occurred at about 6 to 6.30 p.m.

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on 29.9.2006 and it is difficult to hold that only because the

witness stated that it was dark he was not in a position to

identify the accused from a close distance.

25. Another eye witness on which prosecution relied

upon is Suresh Khandate (P.W.3). Suresh who is also

residing in the close vicinity of Bhaiyalal Bhotmange

deposed that he on hearing shouts came out of the house

and saw accused nos. 1 to 3, 6 to 9 and 11 in front of the

house of Bhaiyalal Bhotmange and some of them were

armed with sticks and some were armed with chains. They

shouted that Mahar caste people should be ousted from the

village and then Surekha came out of her house and set fire

to her cattle shed. Thereafter, accused Jagdish caught hair

of Surekha and dipped her in the drain. Thereafter, accused

nos. 1 to 3, 6 to 9 and accused no. 11 beat her to death. BombayThen Sudhir came out of his house in underwear and those High Court accused chased him and caught him and beat him to death

by giving him blows with cycle chains and sticks.

Thereafter, accused shouted to search for other members.

After that those accused found Roshan behind the cattle

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shed of Ramdas Khandate behind the house of Bhayyalal.

Roshan said that he should not be killed as he did not cause

harm to any one but the accused did not pay heed. Those

accused started beating him. So he ran away towards hand

pump (bore­well). Then those accused caught him near

hand pump and beat him to death. Then he heard shout of

Priyanka in agony and thereafter accused no. 7 Ramu and

accused no. 3 Shatrughna dragged dead body of Roshan

while accused no.2 Sakru and accused no. 8 Jagdish dragged

dead body of Priyanka where dead bodies of Surekha and

Sudhir were dumped. After some time a bullock cart was

brought there and then the accused kept those dead bodies

on that bullock cart. Accused no. 8 Jagdish was riding that

bullock cart while accused no.2 Sakru, accused no.3

Shatrughna and accused no. 9 Prabhakar followed the

bullock cart which proceeded towards Kandri. Bombay25A. In cross­examination he stated that his house was High Court in front to the house of Bhayyalal and Siddharth used to

visit the house of Bhayyalal since he used to treat Surekha

as his sister. He admitted that he had good relation with

Bhotmange family members and he used to visit their

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house. He denied that the house of Mukesh was at the

distance of about 30 ft. from his house and stated that it was

about 10 ft. away. He also admitted that deceased Roshan

and Sudhir were friends of his sons Mangesh and Kamal He

admitted that he suffered from chickenguniya from

20.9.2006 and he was having severe pain in joints and he

stated that he could not walk and he was taking treatment

from the Doctor. He admitted that he did not go in the

village between the period 20.9.2006 to 5.12.2006. He also

stated that during the said period of about two months

police neither asked him anything nor he told them

anything. He admitted that after 4­5 days of the incident 2­3

police outposts were made but he did not know whether

any police officer from CID used to come to the outpost. He

admitted that he did not tell anything about incident to the

leaders, journalists or the social workers and the reason was Bombaythat he was suffering from illness and as such he did not call High Court those persons. However, in cross examination he admitted

that he had stated to CBI about the place where Roshan

was hiding and the cowshed in the field was not visible to

him from the place near his house. He stated that he could

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not see Roshan at the house of Bhotmange. He further

stated that he had stated to CBI that Roshan was found at

cowshed which was at the place owned by Ramdas. His

statement to CBI was correctly recorded. Similar statement

was made to CBI that Roshan ran away from there and

these persons chased him and apprehended him near the

hand pump and that he was beaten to death and the same

was correctly recorded. He further stated that he did not

state so to the learned Magistrate since he did not ask him.

He was confronted with the statements made to Magistrate

and CBI wherein he had not stated that Jagdish shouted

that other members of the house should be searched and

killed. The witness could not give any reason for the

omission. He also admitted that he had not told the

Magistrate that the accused found Roshan at the back side

of the shed of the house of Bhotmange. Similarly, he was Bombayconfronted with the statement made to Magistrate wherein High Court he had not stated that Jagdish and Vishwanath Dhande told

that Mahar caste people should be ousted from the village

and omission was duly proved.

25B. In further cross examination of the witness the

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following omissions vis­a­vis his statement to the

Magistrate were brought on record.

i) That he did not tell that all the accused

ran after Surekha;

ii) The bullocks of bullock­cart were red in

colour.

25C. The witness further stated that his statement

before the CBI that dead bodies were kept in bullock cart

and were taken away towards Kandri village was correctly

recorded. He further deposed that at the time of incident

he was not able to run, to jump and to climb. He denied

the suggestion that he could not see the object at long

distance because of pain in the eyes. He denied the

suggestion that he had not seen any of the accused beating

Bhotmange family members or that none of the accused

took away the dead bodies of the family members of BombayBhotmange in the bullock cart. He denied the suggestion High Court that since Mukesh Pusam who was also belonging to the

same caste has lost his election by two votes he had grudge

against all the accused. He denied the suggestion that

Bhaiyyalal had enticed him by offering money and,

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therefore, he falsely deposed against the accused. Similarly,

he also denied the suggestion that CBI had offered money

and a job in the village and, therefore, he deposed against

the accused. He denied that he was facing prosecution for

drinking liquor. The witness was shown one certified copy

of the statement (Exh. 275) bearing his signature. He was

shown another application (Exh. 276) made by him to the

Collector for his rehabilitation. The witness admitted that

he had applied to the Collector for rehabilitation. The

witness stated that he had brought the copy of the

application having his signature. He produced the same at

Exh. 278. The witness stated that he deposed in the court

on 2.7.2007 and Exh. 278 was prepared on 16.4.2007. He

further deposed that the Social Welfare Officer had shown

to him some agricultural land which would be immersed in

Gose Khurd Dam Water and, therefore, they did not like the Bombayland. He was asked by the Social Welfare Officer High Court to seek payment of Rs. 10 lacks in stead of agricultural land and

then he got prepared Exh. 277. He further stated that he

and Mukesh (P.W.2) had applied at the same time. He

denied the suggestion that the CBI proposed for his

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rehabilitation as he was witness in the case. He denied the

suggestion that he was induced by CBI by promising his

rehabilitation. He admitted that he was residing at

Khairlanji. The witness admitted that he was given police

protection after he complained to the Police about threats.

In re­examination on behalf of the CBI he stated that he had

given application for rehabilitation as he faced threats from

the relatives of the accused and for no other reason and he

had expressed threats to his life.

25D. No doubt in the testimony of this witness there

are certain contradictions and omissions vis­a­vis earlier

statement but the core of his testimony has not been

shaken in the cross examination and having regard to the

fact that his house was very close to the house of Bhaiyyalal

it was quite natural for this witness to witness the incident

of assault on deceased. Insofar as the submission made by Bombaythe learned counsel for the accused that this witness as well High Court as Mukesh who had also filed similar applications for

rehabilitation were induced to depose by promising to

provide plots is concerned, we find merit in the submission

of Mr. Ejaz Khan that CBI had no role to play in the

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rehabilitation of the two witnesses or in the attempt of the

two witnesses to get rehabilitated on the ground that they

faced threats from the villagers. It was for the State

Government who had to take appropriate decision on the

applications made by the two witnesses for rehabilitation as

the same was part of the witness protection programme.

Therefore, in our considered opinion, the mere fact that two

witnesses had asked for rehabilitation on the ground that

they were facing threats from the villagers and could not

carry out any work in the village would not be a ground to

disbelieve their version on oath. Suresh Khandate (P.W.3)

though was suffering from Chicken Guniya, it is difficult to

hold that he was not in a position to come out of his house

and see the incident. Testing their evidence on the touch

stone of probabilities, we are of the considered opinion

that, the evidence of both the witnesses i..e Mukesh Pusam Bombay(P.W.2) and Suresh Khandate High (P.W.3) inspires Court confidence and their evidence clearly establishes the role of accused

nos. 1 to 3, 6 to 9 and 11 in the commission of the crime.

26. The next eye witness examined by the

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prosecution is Dinesh Dhande (P.W.19). He deposed that

he knew Bhaiyyalal Bhotmange and his family members.

The house of Bhaiyyalal is at Toli area of Khairlanji.

Bhaiyyalal was residing along with his wife Surekha, sons

Sudhir, Roshan and daughter Priyanka. On 29.9.2006 in the

evening he returned to his house and thereafter he went to

the shop to purchase pan masala. On the way back he

heard shouts from Toli area so he went to that area. He

stood near an electric pole behind the house of Natthuji

Khandate. He saw Surekha Bhotmange coming out from

the back side of her house. Vishwanath Dhande and

Shatrughana Dhande followed Surekha. Vishwanath

Dhande was possessing one stick and Shatrughana Dhande

was possessing a chain. By that time Jagdish Mandlekar

came to that place from the side of house of Suresh

Khandate. He was also holding one stick. Jagdish Bombayobstructed Surekha Bhotmange near a drain. Jagdish then High Court started beating Surekha Bhotmange by using stick. Then

Vishvanath and Shatrughana Dhande came there from the

back side portion of the house of Bhaiyyalal and started

beating Surekha. Then Ramu Dhande and Shishupal

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Dhande came there from the same way Jagdish came there.

Ramu was holding one stick and Shishupal was holding one

chain. Both of them started beating Surekha. Then

Prabhakar Mandalekar, Gopal Binjewar and Sakru Binjewar

came there from the back side portion of the house of

Bhaiyyalal. Prabhakar Mandlekar and Gopal Binjewar were

having nothing in their hands. There was a wooden stick in

the hand of Sakru Binjewar. Then Prabhakar Mandlekar,

Gopal Binjewar and Sakru Binjewar started beating

Surekha. Then all those persons killed Surekha by beating

her. He did not go to see whether she was alive or dead.

Beating took place near a drain and beside a cow dung pit

situated at the back side portion of the house of Bhaiyyalal

towards left side. The distance between that drain and cow

dung pit is 3­ 4 feet. Witness was shown the map (Exh. 54).

Witness pointed out the place where Dhusala road and BombayKandri road meets. TheHigh witness pointed outCourt the place where he stood and also the place of beating of Surekha.

Thereafter he saw Sudhir Bhotmange running towards

Dhusala in an underwear. Jagdish Mandalekar, Vishwanath

Dhande, Shishupal Dhande, Shatrughana Dhande, Ramu

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Dhande, Prabhakar Mandlekar, Gopal Binjewar and Sakru

Binjewar caught Sudhir Bhotmange in front of the house of

Krishnaji Titirmare and beat him. Sudhir was dragged to

the place where Surekha was kept. Roshan, second son of

Bhaiyyalal was hiding himself in a cattle shed situated at the

back side of their house. All those persons caught Roshan

who had escaped and ran towards the hand pump (bore

well). All these persons caught him near the hand pump

and beat him on account of which Roshan fell down.

Witness claimed that he did no go to see whether he was

alive or dead. Priyanka, daughter of Bhaiyyalal was hiding

in a cattle shed situated beside the hand pump. All the

above referred persons brought her out of that cattle shed

and assaulted her by giving blows of sticks, chains and by

giving fist and kick blows. Priyanka was wearing a school

uniform. The witness claimed that he saw all those persons Bombaydragging Roshan and Priyanka to the place where Sudhir High Court and Surekha were kept. Sudhir and Roshan were beaten by

sticks, chains, fists and kicks.

26A. When the incident was going on, 30 to 40 persons

surrounded the house of Bhaiyyalal. Some persons out of

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those persons who were beating, intermittently were telling

that if some one would tell their names then he will be also

beaten like them. Thereafter, he went to his house as he was

frightened. Witness further deposed that Bhaiyyalal

belongs to Mahar caste. Witness claimed that at the time of

incident other persons were beating and shouting

“Maharana Mara” (beat Mahar caste people). The witness

identified the persons present in the court as assailants and

stated that he knew them as they were his co­villagers.

26B. In cross­examination on behalf of the accused

nos. 3 to 7 and 11, the witness stated that his house is

situated about 500 to 600 meters away from the house of

Bhaiyyalal and his field is besides Dhusala Road at the

distance of about 1 k.m.. He used to go to field in the

morning and return in the evening some times early and

some times late. He further stated that he did not know BombayRajendra Gajbhiye but High he knew Sidhharth GajbhiyeCourt who was frequently visiting the house of Bhaiyyalal. Sidhharth

Gajbhiye is the Police Patil of village Dhusala. He stated

that he did not know whether Khairlanji people were afraid

of Sidhharth Gajbhiye because he was a goonda. The

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witness claimed that he has not seen the incident of beating

Sidhharth. He claimed that he had good relations with the

family of Bhaiyyalal but he was not on visiting terms with

them., Witness further admitted that in the said crime

about 40 to 50 persons were arrested including his father.

He did not remember whether his statement was recorded

by police after arrest of his father but he admitted that CBI

recorded his statement on 9.12.2006 when his father was in

jail. He further stated that when his statement was recorded

by the Magistrate his father was in jail. Witness admitted

that he was taken to jail four times for identification of

attackers. The witness candidly admitted that since his

father was in jail he did not identify any of the accused. He

admitted that his statement was recorded by the Magistrate

and that his father was released after CBI filed the charge

sheet. Witness denied that CBI assured him that his father Bombaywould be released after 90 days and further assured that if High Court he gave statement before the CBI, then CBI would

discharge his father. He admitted that he had stated the

police that he had returned from the field at about 6.30 p.m.

on the date of incident. Witness was confronted with the

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police statement when it was so recorded to which the

witness stated that it was not correctly recorded. He had not

told the police on 29.10.2006 as to which of the accused was

holding that weapon. He could not give any reason why

this was not found in his police statement.

26C. The witness admitted that beyond the house of

Bhaiyyalal there were heaps of cow dung and in that area

grass grows in winter season but he denied that the grass

and plants grow up to height of 3 to 4 feet. Witness

admitted that the Police had provided security guard to

him for 24 hours. The witness further admitted that

amongst 40 encircling the house of Bhaiyyalal Bhotmange

there were some ladies but he could not identify them as

they were standing far away. The witness categorically

denied the suggestion that he could not identify them

because of darkness and stated that it was not so dark. The Bombaywitness admitted that during those days there used to be High Court load shedding for about 8 to 10 hours.

26D. He further deposed that Surekha and Bhaiyyalal

Bhotmange used to prepare bidis also and bidi contractor

and his men used to come to the house of Surekha

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Bhotmange even at odd hours. He claimed ignorance as to

whether there used to be quarrels between Surekha

Bhotmange and bidi contractor regarding money matters.

Witness admitted that he was active in politics in the village

and that Mukesh Pusam and Suresh Khandate were in his

group in election. He denied that Bhaiyyalal was also in his

panel. He admitted that all the accused used to remain in

opposite panel in election. Witness admitted that he was

called to Andhalgaon Police Station and threatened several

times and was threatened that if he did not give statement

he would also be arrested.

26E. In the cross examination on behalf of the accused

nos. 1, 2, 8 and 9 he deposed that the distance between the

place where he stood to see the incident and the house of

Bhaiyyalal was about 100 to 150 meters. However, he

denied the suggestion that from point W­1 in sketch (Exh. Bombay54) he could not see asHigh to what happened Court on the road situated in front of the house of Bhaiyyalal. He admitted

that there were houses and some trees besides the road.

However, he denied the suggestion that if some one stood

on that road he could not have seen him. The witness

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volunteered that persons were visible but their faces could

not be identified. He further stated that he did not tell the

police that from his terrace he had seen that some thing was

going on around the house of Bhaiyyalal or that he saw

some ladies and gents attacking the house of Surekha

Bhotmange. The witness was confronted with the police

statement and the witness stated that same was not

correctly recorded. The witness further stated that he could

not identify 40 to 50 persons who had gathered on the spot.

Witness admitted that on the day of the incident there were

showers of rain and the same went up to 7.30 to 8.00 p.m.

but he denied the suggestion that there was heavy rain with

the passage of time. He stated that he did not remember

whether there was load shedding in the village from 5.30

onwards and that it went up to late night. He further stated

about 50 persons who were present there were not the Bombayattackers and he could not identify them. He denied the High Court suggestion that he returned to the village from the field at 6

to 6.30 p.m.. The witness volunteers that he returned back

at about 5.00 p.m. He denied the suggestion that at 6.30

p.m. he went to the beetle kiosk for taking kharra and saw

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those persons returning from Kandri. To a pointed

question that he did not see the incident, witness stated that

since there was darkness he could not see the incident

clearly. Witness volunteered that the Police had threatened

him to give statement in their favour but CBI did not tell

him to do so. Witness denied the suggestion that CBI

induced him by offering to give him job and money if he

were to depose in their favour. The witness admitted that

Sidhharth used to visit the house of Bhaiyyalal in his

presence as well as in his absence. He denied the

suggestion that Surekha used to file complaints against the

villagers after quarrels. He also denied the suggestion that

Surekha used to threaten that people would be falsely

implicated under the Atrocities Act. The witness denied the

suggestion that he had named the accused at the instance

of the CBI. Bombay26F. The witness further stated that he was taken for High Court identification of offenders about four times but he did not

identify them. He admitted that he had not disclosed the

incident to police officers and Ministers who visited the

village but the same was on account of fear. He further

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deposed that since the police had arrested about 50 persons

he did not tell the incident to them.

26G. A close scrutiny of the evidence of the above

witness discloses that although there are certain

contradictions in his testimony vis­a­vis his earlier

statements, the core of his testimony has not been shaken

in the cross examination. It is difficult to accept that merely

because accused were in the opposite camp in election the

witness would falsely implicate them. It is pertinent to note

that the witness has not implicated all of the accused

named in the charge sheet. The attack on the testimony of

this witness on the ground that he could not have seen the

incident on account of darkness is concerned, we find it

difficult to accept that merely because the witness stated

that there was a little darkness, he could not see the

incident of assault on the deceased. Moreover, the accused Bombaywere from his village which is a small one. The witness knew High Court all the accused and it is the case of the witness himself that

they were in opposite camp and as such we find it extremely

difficult to accept the defence that because of darkness

witness was not in a position to identify the accused

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assaulting the deceased as deposed by him. It is also

pertinent to note that the witness claimed that he was

frightened and he did not disclose the entire incident to the

police because he was threatened by police that if he did

not support the police he would be implicated in the case.

We have already noted that initially the investigation was

not carried out in a proper direction and indiscriminate

arrests were made by the local police and, therefore, we find

it difficult to reject the version of the witness that on

account of fear he did not disclose the actual incident to the

police. It was quite natural for the witness to disclose the

actual incident to CBI after the investigation was handed

over to CBI by the State Government. Therefore, in our

considered opinion, mere delay in disclosing the incident to

CBI by itself is not fatal to the prosecution case having

regard to the circumstances mentioned hereinabove. BombayMoreover, the evidence High of this witness Court also stands substantially corroborated by his statement made to the

Magistrate which lends assurance to the testimony of the

witness. Therefore, we have no hesitation to accept his

testimony which clearly proved the complicity of accused

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in the commission of the crime.

27. The next witness examined by the prosecution is

Mahadeo Zanzad (P.W.20) who deposed that his house is

situated at the distance of 100 to 150 feet from the house of

Bhaiyyalal Bhotmange. He claimed that he was residing at

Khairlanji since his birth. He further deposed that on the

day of the incident he returned from his field and went to

beetle kiosk to take kharra at about 6.30 p.m.. Thereafter,

he heard noise coming from the side of the house of

Bhaiyyalal. He went towards the house of Bhaiyyalal and

stood at the back side of the house of Nathuji Khandate and

he saw about 20 to 30 persons standing around the house of

Bhaiyyalal and thereafter Surekha Bhotmange came out

from the back side portion of her house. Thereafter,

Prabhakar Mandalekar, Jagtdish Mandalekar, Sakru BombayBinjewar, Vishwanath High Dhande, Shatrughana Court Dhande, Ramuji Dhande and Purushottam Titirmare surrounded

Surekha Bhotmange. Surekha was then shouting that she

should not be beaten. Some male persons were telling to

beat her while some other were telling to let her go.

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Thereafter, he could not see what happened due to

darkness. Then he heard shouts that Sudhir was running

towards the field and he be caught. He also saw 2­3 persons

running towards Sudhir but he could not identify those 2­3

persons. He heard the shouts of Sudhir as “Maru Naka,

Maru Naka (not to beat him)”. Some persons were telling to

beat him but some persons were telling not to beat him.

After some times some persons ran towards the hand

pump. Then he became frightened and went to his house.

27A. He further deposed that he had undergone eye

operation. He further deposed that he knew Sidhharth

Gajbhiye, Police Patil of Village Dhushala and he used to

come to the house of Bhaiyyalal Bhotmange but he did not

know anything about beating of Sidhharth Gajbhiye as at

that time he was residing with his sister at Nagpur. He

further deposed that the police recorded his statement after Bombay2­3 days of the incident and CBI also recorded his statement High Court but he did not remember the date. His statement was also

recorded by the Judicial Magistrate, First Class, Mohadi but

he did not remember the date. The witness admitted that

after his statement was recorded by the Magistrate it was

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read over to him and he also read the same and found to be

correct. The CBI also recorded his statement but it was not

read over to him. He deposed that he did not know what

Prabhakar Mandalekar, Jagdish Mandalekar, Sakru

Binjewar, Vishwanath Dhande, Shatrughana Dhande,

Ramuji Dhande and Purshottam Titirmare were doing

while standing surrounding Surekha Bhotmange. The

witness stated that he did not remember whether he told

the Magistrate as to what those persons were doing

surrounding Surekha. He went to the extent of saying that

even if his statement to Magistrate was shown to him, he

was not able to recollect about it but he could not give any

reason for the same. He further deposed that he did not

know what those persons were having in their hands when

they surrounded Surekha as he could not see due to

darkness. At this stage, the permission was sought by the BombaySpecial Public Prosecutor High to cross examine Court the witness which was granted by the learned trial Judge. In cross­

examination on behalf of the prosecution nothing tangible

has been brought on record in support of the prosecution

since the witness denied that he had made statement to CBI

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as reflected in the statement. The witness was confronted

with the statement to the Magistrate in which he has stated

that he saw Surekha coming out of her house. He admitted

the fact that Jagdish Mandalekar, Vishwanath Dhande,

Shatrughana Dhande, Ramu Dhande, Sakru Binjewar,

Prabhakar Mandalekar, Gopal Binjewar and Purshottam

Titirmare beat Surekha and some of the persons were

holding sticks in their hands while had no weapon and

Surekha was shouting while those persons were shouting

“beat, beat” was correct. However, he stated that he did not

see such incident but he had made false statement before

the Magistrate. The witness admitted that Vishwanath

Dhande, Shatrughna Dhande and Ramu Dhande were

related to each other and they belonged to caste and

he also belonged to Kunbi caste. He further stated that

Prabhakar Mandlekar and Jagdish Mandlekar belonged to BombayKalar caste. High Court

28. We do not deem it necessary to refer in detail the

cross examination on behalf of the Public Prosecutor as well

as on behalf of the accused because we find it extremely

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difficult to place reliance upon any of the statements made

by him either in examination in chief or in the cross

examination since the witness had the audacity to admit

that he had made false statement to the Magistrate.

Admittedly, the witness was prosecuted for giving false

evidence before the learned trial Judge and it has been

submitted by both the sides that he was convicted for giving

false evidence. This being the position, we find it extremely

difficult to place reliance upon any of the statements made

by him either in the chief or in the cross examination on

behalf of the Special Public Prosecutor or by advocate on

behalf of the accused.

29. We are unable to accept the submission of Mr.

Khan that part of his testimony that some of the accused

surrounded Surekha and that witness heard shouts of BombaySudhir can be relied High upon as corroborative Court piece of evidence for other witnesses. The witness who has the

audacity to accept that he has made a false statement to the

Magistrate and who has been convicted for giving false

evidence deserves no credence. In our considered opinion

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though the principle of falsus in uno falsus in omnibus is

not applicable in India, the same can not be invoked while

appreciating the evidence of this witness who has been

convicted for giving false evidence. The testimony of such

witness deserves to be rejected outright. We are, therefore,

of the considered opinion that his evidence except to the

extent that he has deposed about the castes of some of the

accused which has not even been disputed by the accused,

has to be rejected.

30. The next witness examined and relied upon by the

prosecution is Premlal Walke (P.W.22). He deposed that he

was residing in the village Khairlanji since last 10 to 12

years. His house is situated at the western side of the house

of Bhaiyyalal Bhotmange. On 29.9.2006 at about 6.30 p.m.

he heard shouts as “Mara Mara” from the side of the house Bombayof Bhaiyyalal. At that time he was busy in preparing for Puja High Court of Durga Devi. They were shouts of Vishvanath Dhande and

Shatrughana Dhande. He claimed that he was frightened

and he did not come out of the house. After some time he

heard words “where are boys”. After some time there was

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peace and he came out of the house and came up to gate.

He saw one bullock cart passing through the road which is

situated in front of the house of Bhaiyyalal. The bullock cart

was proceedings towards Kandri from the side of Dhusala

road. There were some dead bodies in the bullock cart and

Jagdish Mandlekar was riding that bullock cart. Vishvanath

Dhande, Shatrughana Dhande, Ramu Dhande, Sakru

Binjewar and some other persons were following that

bullock cart and they were having sticks in their hands. The

bullocks of the cart were reddish in colour. After some time

police vehicle came but since he was frightened he did not

say anything to the police. One policeman asked him as

where the family members of Bhaiyyalal Bhotmange but he

feigned ignorance. He further deposed that his statement

was recorded by the Judicial Magistrate First Class, Mohadi.

In cross examination the witness stated that there are about Bombay15 houses in Toli. He was on visiting terms with Bhaiyyalal High Court Bhotmange but there were no quarrels between Bhaiyyalal

Bhotmange and villagers at any time. He admitted that

Surekha and her children used to keep fast and used to

come to his house for prasad of Durga Mata. He denied the

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suggestion that they had come to his house on the day of

incident for prasad. He further admitted that there were

about six families of Gond caste and about 3­4 families of

caste of Kunbi in their locality. Mukesh Pusam was residing

in their locality and he was his brother­in­law. Mukesh was

residing in front of his house and Suresh Khandate was also

residing in front of his house but he is not his relative but

belongs to his caste. Witness stated that police did not

record statement of his wife in his presence. Witness

claimed that on the day of incident he went to his employer

Bhagwan Dhenge in the morning and returned at about

6.00 p.m.. The witness was confronted with the police

statement in which it was stated that on the night of the

incident he had returned home at 8.00 p.m.. The witness

stated that it was not correctly recorded. The witness

claimed that police did not record the statement as per his Bombaysay. He stated that he had given statement to the Judicial High Court Magistrate. The witness initially stated that he came alone

in the court but thereafter corrected saying that he had

come with Malewar Police Constable who was his security

guard. The witness stated that on the night of the incident

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he did not tell police anything when he came to the village

and he did not tell the police anything before 3.10.2006

although they used to come to inquire about incident. CID

police had recorded his statement a month after his

statement was recorded by police but he did not tell them

correct facts as he was under fear since police arrested

many persons. He denied the suggestion that he was taken

to Mohadi by police for recording his statement. He denied

the suggestion that he deposed against the accused at the

instance of CBI although he did not know anything about

the incident. In cross examination on behalf of the accused

nos. 1,2 , 8 and 9 the witness denied the suggestion that he

could not see properly during the night hours or he could

not identify any person from the distance of 15 to 20 feet

even if he remains in darkness. The witness admitted that

he had given statement to CBI after two and half months of Bombaythe incident. The witness denied the suggestion that he had High Court participated in the village election or that he had given vote

to the candidates to the group of Mukesh. The witness

admitted that he was religious minded and used to worship

regularly. The witness admitted that he could not read and

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write but he could put his signature. The witness stated that

after the incident many Leaders and Ministers came to the

village for about two months and during that period police

arrested many villagers. He further deposed that he know

Mr. Gajbhiye as Police Patil of Dhusala but he did not know

his name. He admitted that Gajbhiye used to come to the

house of Bhaiyyalal but he did not know whether Gajbhiye

used to help Bhaiyyalal and his family members. He denied

the suggestion that due to political rivalry with the accused

he is deposing falsely against them.

30A. A close scrutiny of the evidence of the above

witness discloses that core of his testimony has not been

shaken in the cross examination and there is absolutely no

reason forthcoming in the cross examination of the witness

as to why he should falsely implicate accused he has

named. He specifically named the accused who were found Bombayin and near the bullock High cart in which dead bodiesCourt were carried out. The evidence of this witness inspires

confidence and there is absolutely no reason to disbelieve

his version that the accused named by him had carried the

dead bodies in the bullock cart on the day of the incident.

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31. At this stage we would like to deal with the

arguments advanced on behalf of the accused that there is

variance between the evidence of eye witnesses and

medical evidence tendered through Dr. Avinash John

Shende (P.W.14) who deposed that the incised injuries on

the deceased could not have been caused by hard and blunt

object. Mr. Khan is justified in placing reliance upon the

Judgment of the Apex Court in Kailash vs. State of M.P..

((2006) 11 Supreme Court Cases, 420) in which the Apex

Court has held that the wounds produced by a blunt

instrument may simulate appearances of an incised wound.

In holding so the Apex Court placed reliance upon the

Medical Jurisprudence and Toxicology by Glaister and

Rentoul's in which it has been stated as under:­

“Under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may simulate the appearances Bombayof an incised wound. These wounds are usually High Court found over bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. When such a wound exposes hair bulbs at its edges, it is possible by examining these carefully to decide whether they have been cut or crushed

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and thus establish whether the wound was caused by a sharp or blunt instrument. As a rule, especially in the living subject, a wound produced by a blunt instrument will disclose some degree of bruising and swelling of the edges and the deeper tissues will be less cleanly severed than when divided by a sharp cutting instrument.”

31A. Similar view has been taken by the Apex Court in

the case of State of Rajashthan vs. Laxman Singh (2002 (10)

SCC, 65. Therefore, we find it extremely difficult to accept

the submission made by both the learned counsel for the

accused that since medical evidence runs counter to the

evidence of the eye witnesses the entire prosecution case

deserves to be rejected and, therefore, the complicity of the

accused has not been established. The medical evidence

tendered by Dr. Avinash (P.W.14) who conducted post

mortem on the four dead bodies can not outweigh the

cogent evidence of the above referred eye witnesses which Bombayclearly proves the complicity of the accused in the crime. High Court

32. We shall now deal with the evidence of Bhaiyyalal

Bhotmange (P.W.17), the husband of Surekha and father of

Sudhir, Roshan and Priyanka, who lodged report on

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30.9.2006 at Andhalgaon Police Station. He deposed that he

belongs to Mahar caste. He married Surekha in the year

1982 and Sudhir, Roshan and Priyanka were his children.

Sudhir was physically handicapped and all the accused

were the residents of Khairlanji village. He further deposed

that all the accused killed Sudhir, Roshan and Priyanka. On

29.9.2006 in the evening he was present at his house.

Incident took place at about 6 to 6.30 p.m.. At that time all

his family members were present in the house. He further

claimed that villagers attacked their house in the evening

shouting that “Mahar Dhed people falsely implicated us in

police case”. He saw sticks and chains in their hands. He

was frightened on seeing them. On seeking them he ran

away towards Dhusala. He further claimed that out of the

villagers he knew 12 to 13 persons and they were Gopal

Binjewar, Sakru Binjewar, Jagdish Mandle, Prabha Mandle, BombayNanya Manya Mandle, High Hahipal Dhande, Ramu Court Dhande, Shatrughna Dhande, Purushottam Titirmare, Premlal

Khurpe and others. He ran towards Dhusala as he was

frightened after looking to the fury of the mob. He met

Police Patil Sidhharth and told him about the incident.

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Siddharth made phone call to the Andhalgaon Police

Station on his mobile phone. At about 9 to 10 p.m. he went

to Andhalgaon Police Station to lodge report. At that time

he was in a frightened condition and as such he could not

lodge report. On that night he resided with Siddharth at

Dhusala.

32A. He further deposed that on the next day i.e. on

30.9.2006 he went to his house at about 4 to 5 a.m. and

found that his house was in ransacked condition and he

could not find his family members there. Thereafter, he

went to Yadnyapal Khobragade at village Deulgaon and

asked him whether his family members had come to him

but he replied in negative. Thereafter, he along with

Yadnyapal went to Andhalgaon Police Station and lodged

written complaint. At that time he was also in frightened

condition. He was shown the report (Exh. 133). He Bombayconfirmed its contents as correct. He further deposed that High Court on 30.9.2006 dead body of Priyanka was found which was

shown to him at Mohadi Government Hospital. He went to

Mohadi Hospital at the instance of police and saw the dead

body of Priyanka which was in a naked condition with many

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injuries of sticks and chains.

32B. On the next day, he saw the dead bodies of

Surekha , Roshan and Sudhir. He went near the stream after

getting information about finding of the dead bodies. At

that time police had already prepared the panchanama. He

had seen the dead bodies in Mohadi Government Hospital

and bodies were having injury marks of sticks and chains.

Blouse of Surekha was in torn condition. He identified the

white colour blouse (article 25) and blue skirt (article 24)

which were worn by Priyanka. He identified the petticoat

(article 36) and red colour blouse (article 35) as those of

Surekha. He also identified the blue and white strip shirt

(article 37) and white colour banian (article 38) as those of

Roshan and the under wear(article 39) which was worn by

Sudhir at the time of incident. He further deposed that on

3.9.2006 at about 6 to 6.30 p.m. some villagers beat BombaySiddharth Gajbhiye at Khairlanji village. At that time he was High Court present in his house since he was ill. Thereafter, Surekha

and Priyanka brought Siddharth at their house to give first

aid. On 14.9.2006 statements of Surekha and Priyanka were

recorded regarding assault on Siddharth Gajbhiye. He

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further deposed that village Khairlanji consists of 150

houses and there are three houses of Mahar caste including

his house. The other two houses are of Shri Khobragade and

Shri Meshram and his children only were taking education.

He had about five acres of ancestral agricultural land at

Khairlanji. The villagers wanted right of way from his field

and as per the order of the Tahsildar Mohadi he had given

15 feet of land. He identified his signature on printed FIR

(Exh. 124).

32C. In the cross examination on behalf of the accused

1,2,8 and 9 he admitted that he had not mentioned in the

report (Exh. 133) that villagers were shouting “Mahar Dhed

people falsely implicated them in a police case”. He

claimed that he did not state so since he was in a frightened

condition. He did not remember whether his statement was

recorded by CID on 5.10.2006 or whether it was recorded Bombaytwice on 29.9.2006. He admitted that he had not told the High Court CBI that villagers were shouting as “Mahar, Dhed” and that

they were falsely implicated in police case. He further

deposed that he had not mentioned in the report (Exh. 133)

that villagers had come to his house with sticks and chains.

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He admitted that in the report (Exh.133) names of Gopal

Binjewar, Sakaru Binjewar, Mahipal Dhande, Sishupal

Dhande, Ramu Dhande, Shatrughna Dhande, Purushottam

Titirmare and Premlal Khurpe were not shown as non­

applicants. He admitted that the name of Prabha

Mandlekar was not mentioned in the report (Exh. 133) and

he could not state any reason for the same. He also

admitted that he had not stated in the report (Exh. 133) that

he was frightened due to fury of mob (omission is in respect

of fury of mob). Similarly, he admitted that in the report he

had not stated that he met Siddharth and he could not give

any reason for the same. Similarly, he could not state as to

why the fact that Siddharth had made a phone call to

Andhalgaon Police Station by his mobile phone was not

mentioned in the police report. Similarly he could not give

any reason as to why in the report it was not mentioned Bombaythat he had gone to house at 4 to 5 a.m. and he found the High Court house in ransacked condition. He further stated that

portion marked 'A' of the report which shows time of his

return to the house as 6.00 a.m. was not correct. He further

stated that the report (Exh. 133) was scribed by the petition

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writer who resides in front of Andhalgaon Police Station.

The witness was confronted with the statement to CBI in

which he had not mentioned the names of the attackers but

he could not assign any reason for not finding the same in

his statement. He further deposed that apart from 14

names he has not stated any other names to police, CID and

CBI. He was confronted with the statement made to Police

on 29.11.2006 in which names of several persons were

mentioned but he could not assign any reason for the same.

He further stated that CBI recorded his statements on

7.12.2006, 8.12.2006 and 22.12.2006. He further deposed

that his house hold expenses were about Rs. 25,000/­ per

year and there was no electric meter in his house. His son

was having mobile. He denied the suggestion that

Siddharth used to pay charges of that mobile. In further

cross examination he stated that he did not remember Bombaywhether he went to Khairlanji High village to the house Court of his relative before the day of the incident. He stated that he was

originally resident of village Ambagad in Taluka

which is at the distance of 20 to 25 km from Khairlanji. He

further stated that he did not know whether he returned to

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Khairlanji on the next day of the incident. He denied the

suggestion that no incident had taken place in his presence.

In cross examination on behalf of the accused nos. 3 to 7

and 11 he stated that he obtained his caste certificate and

those of his children before the incident. He admitted that

his family members had good relations with the family of

Mukesh and Suresh Khandate. He admitted that there is a

big cow dung behind his house but he denied that grass

had grown in that cow dung in September. In further cross

examination, he stated that on the day of incident Surekha

returned to the house and thereafter he returned. He

further stated that the incident occured during the rainy

season.

32D. In cross examination on behalf of the accused no.

10 he stated that he went to Khairlanji on foot on 30.9.2006

early in the morning and he reached Khairlanji within 15 Bombayminutes. On 30.9.2006 High he reached Andhalgaon Court Police Station at about 9 to 10 a.m. and he got his report scribed

through petition writer and put his signature on it. He

submitted report to Police at about 11.00 a.m.. He was told

by the police that on 30.9.2006 itself they had registered the

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offence. Witness claimed that after lodging report he went

to Mohadi Government Hospital. He stated that the portion

marked 'A' in the statement recorded by CBI on 7.12.2006

which shows that he went to Mohadi Government Hospital

along with In­charge Police Station Officer, Andhalgaon

Police Station was not correctly recorded but he could not

assign any reason for the same. He denied the suggestion

that he used to pick up quarrels with villagers and make

false allegations against Purshottam Titarmare and his

family. He denied the suggestion that he was not aware

about the incident and, therefore, he did not give statement

to Magistrate when he was taken to the Magistrate for

recording his statement.

33. Perusal of the report (Exh. 133) which the witness

claimed to have lodged on 30.9.2006 in the morning Bombaydiscloses that in the High report he named sevenCourt persons including accused nos. 5,6,8 and 9 and three others viz.

Kanhaiyya Mandale, Nanya Mandale and Kiran Khurape

who were not charge sheeted by CBI. Perusal of the Exh. 134

which is a printed FIR discloses that in the said report

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specific names of 12 persons viz. Dilip Dhenge, Jagdish

Mandlekar, Prabha alias Prabhakar Mandlekar, Gopal

Binjewar, Sakru Binjewar, Nanya Mandlekar, Prakash

Kadav, Pankaj Atilkar, Mahipal Dhandge, Shatrunghna

Dhande, Prem Khurpe and Dharmpal Dhande are found.

There is absolutely no explanation either from the witness

or from the Police Inspector S.S.Bharne (P.W. 23) as to how

in the printed FIR some more names were added.

34. The evidence of this witness who happens to be

unfortunate husband and father of the deceased has been

assailed on the ground of delay inasmuch as printed FIR

(Exh. 134) discloses that it was recorded on 30.9.2006 at

20.40 hours. No doubt FIR is an important document in a

criminal trial to test the veracity of the prosecution case but

in the present case it is the case of the State itself that Bombayinvestigation was not carried out properly by Andhalgaon High Court Police Station and also by CID and, therefore, investigation

was handed over to CBI. Moreover, Bhaiyyalal does not

claim to be an eye witness to the assault on his family

members. He claims that after seeing the crowd he ran

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away and went to Siddharth Gajbhiye and spent night with

him and lodged report on the next day morning and this

being the position, mere fact that the names of all the

accused do not find place in the FIR. (Exh. 133) by itself

would not be fatal to the prosecution case. No doubt there

are certain contradictions and omissions in the testimony

of this witness vis­a­vis earlier statements. The same are

not sufficient to discredit the evidence of the eye witnesses

to which we have made reference hereinabvoe more

particularly having regard to the fact that Bhaiyyalal himself

does not claim that he was an eye witness to the incident of

assault on his family members. The evidence of this witness

read with report Exh. 133 clearly establishes that he

identified the accused nos. 5,6,8 and 9 as the persons

present near his house on 29.9.2006 in the evening. Mere

fact that the names of other accused are not found in the Bombayreport by itself would High not be sufficient to discreditCourt the prosecution case about complicity of the other accused

inasmuch as the version of the witness that he was in

frightened condition even when he went to lodge report can

not be lightly brushed aside. However, his version that the

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assailants who had gathered on the spot were shouting that

“Mahar, Dhede people falsely implicated us in police case''

can not be accepted in view of the omissions vis­a­vis his

report and statements recorded during investigation.

Therefore, the fact that the names of all the accused have

not been mentioned in the report and that the report (Exh.

134) was lodged at 8.40 p.m. on 30.9.2006 would not be

sufficient to discredit the entire prosecution case about

complicity of the accused in the commission of the crime.

The evidence of this witness also clearly establishes that he

identified the dead body of Priyanka on 30.6.2006 and those

of Surekha, Sudhir and Roshan on 1.7.2006.

35. The prosecution has also relied upon the extra

judicial confessions made by the accused nos. 2 and 8 to

Anil Lede (P.W.10), Gopichand Mohature (P.W.15), Sunil BombayLede (P.W.16). Anil and Sunil are brothers and Sunil was High Court arrested by Police and he was discharged by CBI. P.W.10

Anil deposed that on 29.9.2006 at about 9 p.m. while he was

going to his house accused no.2 Sakru met him on the way.

Accused no.2 Sakru asked him to provide “kharra” but he

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did not possess it and as such he informed him that he did

not possess the same. Thereafter, he asked Sakru (A­2) as to

where he went to which Sakru told that four members of

Bhotmange family were murdered. Anil asked him who

murdered them to which Sakru replied that he along with

accused 2,3,7,8,9 and 11 had committed those murders. It

is extremely difficult to place reliance upon the evidence of

this witness in respect of extra judicial confession alleged to

have been made to him by Sakru (A­2). There is absolutely

nothing on record to suggest that Anil was close friend of

Sakru so as to place complete confidence in Anil justifying

such disclosure. There is absolutely no reason for Sakru to

make such confession to Anil. Ordinarily, extra judicial

confession is made to a person of confidence or to a person

from whom the accused wants some help to get out of the

trouble. This is not a factual situation in the present case. BombayMoreover, disclosure aboutHigh extra judicial confessionCourt has been made about one and half month after the incident.

The circumstances in which the witness claims that Sakru

made confession to him raise serious doubt about the

authenticity of the extra judicial confession made to the

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witness. No doubt suggestion was given to the witness that

when Sakru met him he was in a drunken condition which

has been accepted by the witness. Therefore, in any case

extra judicial confession upon which reliance has been

placed by the prosecution can not be said to be voluntary to

inspire confidence. Moreover, in cross­examination Anil

has admitted that at the time when Sakru met him he was

murmuring like a drunken man. Considering all these

factors, we find it extremely difficult to place reliance upon

the extra judicial confession alleged to have been made by

Sakru (A­2) to Anil Lede. In any case, Mr. Jaiswal is justified

in placing reliance upon the Judgment in the case of

C.K.Raveendran vs.State of Kerala (2000) 1 SCC 225 in

which the Apex Court refused to place reliance upon the

extra judicial confession made by an accused after

consuming liquor in arrack shop on the ground that same Bombaycould not be said to be voluntarily and truthful. High Court

36. The prosecution has also relied upon the extra

judicial confession made by Jagdish (A­8). P.W.16 Sunil

deposed that on 30.9.2006 at 6.00 to 6.30 a.m. he opened his

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tea stall. Then accused no. 8 Jagdish came there.

Gopichand (P.W.15) also came there. Accused Jagdish

demanded tea on credit but Sunil refused to give tea on

credit in the morning hour. Jagdish told him that he had Rs.

150 in his shirt pocket which was burnt. On questioning

why the shirt was burnt, Jagdish told him that he had killed

four members of the family of Bhayyalal and as such his

clothes were stained with blood and, therefore, he burnt

those clothes with that cash. Gopichand (P.W.15) who was

present at the stall at the relevant time has also claimed that

he had heard such conversation between Sunil and Jagdish.

In cross­examination, Sunil admitted that when he refused

to give tea to Jagdish, he became angry and he left his shop

murmuring. Admittedly, Gopichand (P.W.15) and Sunil

(P.W.16) were arrested by police in connection with the

same crime and they claimed that they had told the police Bombayabout the extra judicial confession made by Jagdish but no High Court attention was paid to the same. Upon close scrutiny of the

evidence of Sunil and Gopichand, we find it extremely

difficult to place reliance on the evidence of Sunil as well as

Gopichand that Jagdish had made extra judicial confession

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as deposed by them. It is well settled that extra judicial

confession should be voluntary and truthful. In the present

case, we find it extremely difficult to accept the version of

the two witnesses about extra judicial confession alleged to

have been made by accused no. 8. It is highly improbable

that Jagdish, upon being asked by Sunil as to why Jagdish

had burnt the shirt in which he had Rs. 150/­, would

disclose him the reason for burning shirt. It is not the case

of the prosecution that Sunil was a close friend of Jagdish or

that he had confidence on him so as to disclose to him that

he had committed murder of four family members of

Bhayyalal Bhotmange. We, therefore, find it extremely

difficult to place reliance upon the extra judicial confession

alleged to have been made by Jagdish (A­8) to Sunil (P.W.16)

in presence of Gopichand (P.W.15).

Bombay37. We shall deal with the aspect High of motive Court for the commission of the crime. According to the accused, there

was absolutely no motive to commit ghastly crime for which

they have been convicted by the learned trial court.

According to the prosecution itself, motive was to take

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revenge. The evidence regarding motive comes from

Suresh (P.W.3), Siddharth (P.W.18), Rashtrapal (P.W.5).

According to Suresh (P.W.3) on 3.9.2006 at 6.00 a.m.

Siddharth (P.W.18) came to the house of Bhayyalal at

Khairlanji. Sakru (A­2) came there and demanded wages.

There was altercation between both of them and Siddharth

slept Sakru (A­2). Siddharth (P.W.18) deposed that on

3.9.2006 he came to the house of Bhayyalal and met

Priyanka and then proceeded towards Kandri on his motor

cycle. After proceeding for about half k.m. some persons

accosted him and beat him. Thereafter, Priyanka and

Surekha came there and brought him to their house.

Siddharth lodged report after two days which was registered

as Crime No. 52/06. Mr. Bharne, PSI (P.W.23) confirmed

filing of the report by Siddharth and stated that he recorded

statements of Priyanka and Surekha Bhotmange who Bombayclaimed that they had seen the incident. High P.W.2 Court Mukesh and P.W.3 Suresh also deposed that at the time of the

incident accused shouted that Surekha got them entangled

in police case. The above evidence clearly suggests that

accused suspected that they were implicated in the crime

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of assault on Siddharth by Priyanka and Surekha

Bhotmange by claiming to be eye witnesses to the incident

of assault and that was the motive for commission of the

crime. No doubt as held by the Apex Court the motive is

double edged weapon and proof of motive by itself can not

be the ground to hold the accused guilty. But, the evidence

of the above referred witnesses to which we have made

reference clearly proves complicity of the appellants in the

commission of the crime. Proof of motive lends assurance

to the prosecution case. Therefore, we have no hesitation to

hold that the prosecution has been able to establish the

motive on the part of the accused to commit the crime.

38. The prosecution also examined Yadnapal

Khobragade (P.W.4) brother of deceased Surekha. His

evidence discloses that in the morning hours on 30.9.2006 BombayBhaiyyalal came to hisHigh house at Deulgaon Court and asked whether his sister had came there. He told him that

Surekha did not come there and asked him as to what

happened whereupon he told him that some villagers of

Khairlanji village attacked their house and beat Surekha,

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Roshan, Sudhir and Priyanka by giving blows of bicycle

chains and sticks and since he was frightened he ran away

from the spot. He further deposed that thereafter he and

Bhaiyyalal went to Dhusala at the house of Siddharth

Gajbhiye. Siddharth Gajbhiye asked Bhaiyyalal to lodge

report to Police. Thereafter he and Bhaiyyalal went to

Andhalgaon Police Station to lodge report. They reached

the Andhalgaon Police Station at 11.00 a.m.. P.S.O. Mr.

Bharne was not available. They told the Head Constable

that they wanted to lodge compliant. Head Constable made

phone call to P.S.O., Bharne who gave message that they

should be kept waiting there and that he would return after

some time. After some time Shri Bharne came to the Police

Station and told them that one body of a girl was found

having name 'Priyanka' engraved on her hand as 'Priyanka'

and they should come there for identification and thereafter Bombaythey went to Mohadi Government Hospital along with Mr. High Court Bharne and found that it was the dead body of Priyanka

and there were no clothes on the person of the dead body

and there were various marks of injuries on her person.

Thereafter, on 1.10.2006 at about 8.30 a.m. Rashtrapal

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Narnavare made phone call to them and told that three

dead bodies were found and he was asked to come to

Andhalgaon. He went to Andhalgaon where he did not find

any dead body so he went to Mohadi Government Hospital

where he saw the dead bodies of Surekha, Roshan and

Sudhir in a tractor. After looking at the dead bodies he felt

giddiness. The witness has been cross­examined on behalf

of the accused but nothing tangible to shake his testimony

has been brought on record. The evidence of this witness

substantially corroborated the evidence of Bhaiyyalal

Bhotmange (P.W.17).

39. The prosecution also examined Rashtrapal

Narnavare (P.W.5) the nephew of Surekha, who deposed

that Surekha was real youngest sister of his mother and she

got married with Bhaiyyalal Bhotmange about 20 to 21 Bombayyears back and they used to reside at Khairlanji along with High Court their children Sudhir, Roshan and Priyanka. He further

deposed that on 29.9.2006 at about 5.30 p.m. he received

phone call from Surekha Bhotmange and she asked him to

come to Khairlanji. She informed him that 12 persons who

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were arrested in the case of Siddharth Gajbhiye were

released on bail and they returned to village. She further

told that these persons with sticks boarded a tractor to go to

Kandri to beat Siddharth Gajbhiye and Rajan Gajbhiye.

She told him that because of this she and her family

members are in danger of life and, therefore, he should

come to Khairlanji. He told her that it was evening and he

was unable to come there and that she should come to their

village to which she stated that she could not come there.

He told her to complain to Andhalgaon Police Station but

she told him that she could not go to Andhalgaon Police

Station as about 2­3 days prior Dy. Sarpanch and PSO

Bharne threatened her by coming to her house that since

she was giving statements against the villagers if anything

could happen then they will not be responsible as

supporters of MLA and MP are behind them. He further Bombaydeposed that on 30.9.2006 High at about 10.00 a.m.Court Yagyapal Khobragade (P.W.4) made a phone call to him and told

him that he was waiting in Andhalgaon Police Station and

he should come there. He further told that Bhaiyyalal was

with him and that Surekha, Sudhir, Roshan and Priyanka

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were missing since previous night. He told him that he

should lodge complaint to Andhalgaon Police Station. He

further deposed that he went to Andhalgaon Police Station.

After some time P.S.O. Bharne came and told that dead

body of the girl was found in a canal at Wadegaon village

limit. Thereafter he came along with Bhaiyyalal and

Yadnapal and identified the dead body. He stated that

again on the next day he went to Andhalgaon Police Station

where he was informed that three dead bodies were found

in the limits of Wadegaon. Thereafter he went to the spot

and identified the three dead bodies as those of Surekha,

Sudhir and Roshan. Though the witness was cross

examined vis­a­vis earlier statement we do not deem it

necessary to discuss the evidence of this witness being of

formal nature and the same proves that Surekha had given

a phone call to him at about 5.30 p.m. On 29.9.2006 Bombayapprehending danger to life and that High he had gone to the Court Police Station on 30.9.2006 and he had identified the dead

bodies of Priyanaka, Surekha, Sudhir and Roshan.

40. The prosecution also examined the Investigating

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Officers viz. Milind Bansod (P.W.13), Vinayak Susatkar

(P.W.25), Avinash Rajurkar (P.W. 26), Sanjay Nimje

(P.W.28), Vitthal Dhage (P.W.29), Nareshkumar Sharma

(P.W.30), Binayakumar Thakur (P.W.31), Pradip Mane

(P.W.32), Maroti Patil (P.W.33), Nandkumar Kutti (P.W.34)

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 BombayPusam (P.W.2). High Court

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

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particularly 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 Bombayof the eye witnesses. We have tested the evidence of the eye High Court 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

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who 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 Bombayin each and every case which should not weigh High Court 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

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looming 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 Bombaycase of State of W.B. vs. Orilal Jaiswal it was held High Court 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

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held 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:­

Bombay“ A criminal High trial is not like a fairyCourt 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

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in 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.

Bombay42. In our opinion, the prosecution has been able to High Court

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

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commit 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 Tribe­­­ Bombayintentionally insults or intimidates with intent High Court 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

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Scheduled 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 BombayScheduled Caste but the motive for the commission of the High Court 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

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been 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 Bombaypresent case, the whole object of the accused was to take High Court 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

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of 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 Bombayfor the offence punishable under Section 354 of the Indian High Court 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

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punishable 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 Bombaynecessary for the prosecution High to prove that a person Court 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

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offence 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 BombayCaste/ Scheduled Tribe can be gone into in the course of High Court 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

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there 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 Bombayconsidered opinion, theHigh authorities relied uponCourt 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

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acquittal 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 Bombayin paragraph nos. 191 to 217 of the Judgment has dealt with High Court 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

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were 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 Bombaycrime. High Court

2) The accused came with sticks and iron chains to commit rioting.

3) All the convicts formed an unlawful

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assembly 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 Bombaycaused any harm to convicts. High Court

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.

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10) 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 Bombaykilling the victims in presence of mob, without High Court 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

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satisfaction 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 Bombayprovoked the accused to commit the crime; High Court d) Accused extinguished the fire;

e) Accused claimed that they were falsely implicated in crime of beating of Siddharth Gajbhiye by Surekha and Priyanka;

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f) 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 Bombay death sentence is an exception;High Court 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

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aggravating 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 Bombayaccused nos. 2 and 8 and, therefore, the said circumstance High Court can not be used against the accused as aggravating

circumstance.

49. After considering the aggravating and mitigating

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circumstances 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 Bombaysentence. However, having regard to the manner in which High Court 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

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MR(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 BombayDattatraya Suryarao vs.High State of Maharashtra Court (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.

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The 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 Bombaythe case of Swami ShradhanandHigh alias Murali Court 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

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including 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 Bombayserved by sentencing High each of the accused Court 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.

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51. 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. Bombay (iii) The conviction and sentences imposed on accused High Court 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

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imprisonment 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.

JUDGE JUDGE

patle

Bombay High Court

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