1 Appeal No.159.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.159 OF 1990 State of Maharashtra .. Appellant. Vs. 1. Ganu Pandu Khot .. 2. Dnyanu Pandu Khot .. 3. Namdev Krishna Khot .. 4. Balu Waghu Gavade .. 5. Dhaku Sakharam Gavade .. 6. Rama Aba Katrat .. 7. Anna alias Ananda Krishna Khot .. 8. Waghu Dhaku Gavade .. 9. Sidhu Bhagoji Gavade .. 10.Mhaku Vithu Katrat .. 11.Babu Mhaku Katrat .. 12.Janappa Vithu Katrat .. Sr.No.1 to 3 and 7 R/o.Village Khotwadi At & Post Pishavi, Taluka Shahuwadi Sr.No.4 to 6 and 8 to 12 R/o Dhangarwada, At & Post Pishavi Taluka Shahuwadi Dist.Kolhapur .. Respondents. Mr.H.J.Dedhia APP for the State. Mr.S.V.Marwadi with Ms.Bhakti Deshpande for respondent nos.1 to 12. CORAM : D.B.BHOSALE & RAJESH.G.KETKAR, JJ. DATED : 9TH SEPTEMBER, 2010. ORAL JUDGMENT (Per D.B.BHOSALE, J.) This appeal is directed against the judgment and order dated 16.8.1991 rendered by the Additional Sessions Judge, Kolhapur in Sessions Case No.107 of 1990 acquitting all the respondents-accused, who were charged and tried for the offence punishable under section S 2 Appeal No.159.92 147, 148, 302, 324 and 149 of the Indian Penal Code. 2. Briefly stated, the facts are as follows: There was a dispute between the complainant and the accused over landed property owned by Mahipati Babu Patil. The complainant and the accused are residents of village Pishavi. There were some criminal as well as civil cases pending in respect of this land. The civil dispute was pending between Mahipati and Akkatai. Accused nos.3 and 7 are the sons of Akkatai. It has also come on record that the complainant’s group and the group of accused was also divided politically and they were belonging to different political factions in the village. The other accused, namely, accused nos.1, 2 to 6 and 8 to 12 and the sons of Akkatai were belonging to same political group whereas all the accused were belonging to rival political group in the village. On 22.6.1989 one Akaram Halpate was brutually murdered allegedly by the accused sometime in the evening at about 7 O’clock. An FIR was lodged on 23.6.1989 at 4.30 am by Janatai Holpate, the wife of the deceased. Janatai - P.W.6 and Sagubai - P.W.7 claim that they witnessed the incident. On the complaint lodged by Janatai – P.W.6, the offence was registered and the investigation was carried out by Dhananjay Bhange - P.W.12. He filed charge-sheet on 28.9.1989 and the case was committed to the Court of Sessions, Kolhapur, since the offence being exclusively triable by a Sessions Court. The prosecution in order to bring home the guilt of the accused, examined 3 Appeal No.159.92 12 witnesses including the aforementioned two eye witnesses. Apart from the oral evidence, the prosecution has also placed reliance upon evidence in the form of different panchnamas including disclosure statements, attachment of blood stained clothes of the accused and the post mortem report. The Sessions Court after having considered entire evidence on record disbelieved both the eye witnesses and after having examined and appreciated the evidence on record, acquitted all the 12 accused. 3. We have heard learned counsel for the parties and with their assistance gone through the testimonies of all witnesses so also the other material placed on record by the prosecution in support of its case. At the outset, our attention was invited to the evidence of two eye witnesses to contend that they not only witnessed the incident but they also sustained injuries and, therefore, they are most natural and genuine witnesses and since they support each other, the trial Court ought to have, believed their evidence and convicted the accused. 4. We have perused the evidence of Janatai – P.W.6. This witness is a wife of the deceased – Akaram. She has stated about the dispute over the agricultural land belonging to Mahipati Patil. Then she has stated about actual incident which according to her occurred sometime after 6 pm. Before that she has also made reference to a 4 Appeal No.159.92 wordly altercation with accused nos.5 and 8. They abused her and her husband stating that they should not take their cattle through their land. That incident occurred sometime in the morning. At about 6 pm Janatai - P.W.6 states that she was inside the house whereas the deceased was sitting in front of their house. Their children were playing in the courtyard of their house. She has stated that her daughter – Gangubai came running to her and told her that her father was being taken away by Ganya – accused no.1 and Dnyanya – accused no.2. She, therefore, rushed outside and saw that her husband was being taken away in the land of accused no.10 – Mhaku Katart. His land was known as Gavandar. She has further stated that her husband was crying and shouting “Mello Mello” (dying, dying). Then she states that she saw accused no.1 – Ganu and accused no.7 -Ananda Khot had caught his hands and accused no.12 – Janappa was sitting on his chest. Then she saw accused no.2 – Dnyanu Khot, accused no.3 - Namu Khot, accused no. 5 – Dhaku Khot, accused no.4 – Balu Gavade, accused no.8 Waghu Gavade, accused no.9 – Sidhu Gavade, accused no.10 Mhaku Katart, accused no.11 Babu Katart and accused no.6 - Ramu Katart were beating her husband by means of sticks. When she tried to intervene she states that accused no.2 – Dnyanu Khot abused her and then accused no.4 – Balu, accused no.5 – Dhaku and accused no.8 – Waghu assaulted her with sticks on her head and other parts of her body. She further claims that her mother-in-law Sagubai – P.W.7 also tried 5 Appeal No.159.92 to intervene and she was also beaten. Then, she says, that after all the accused ran away, she saw her husband and that his face was completely crushed. We have also perused the FIR. The basic difference noticed in her version in the FIR and the testimony was that she did not name accused no.3 – Namu, accused no.9 – Sidhu Gavade and accused no.10 – Mhau Katart, whereas in her testimony she has named and also attributed overt act to them. In the FIR, apart from other accused who were named, she also named one Ramchandra Khot as one of the assailants. However, the prosecution has not shown him as accused in the case. In her testimony she has named all 12 accused except Ramchandra Khot. In the cross examination, she has stated that the incident of beating took place at 7 pm and beating went on for about 25 minutes. She has further stated that while the incident of beating was going on, her husband’s brother – Vithoba and her other relative-Babu Shirke went running to the village and they gave information about the incident to Ananda Patil and Bali Patil at village Pishavi. She has further stated that Ananda Patil gave information to the police on telephone. There is some discrepancy about the time of the information given to the police. Apart from these persons, in the FIR she has also named one Babu Dhau Shelake and her husband’s brother’s wife – Bhagubai Vithoba Kolapate and her children, who, were also present when the incident occurred and they also witnessed the incident. Though the complainant has named so many 6 Appeal No.159.92 persons i.e. Vithoba, Babu Shelake, Ananda Patil, Bali Patil, Bhagubai Kolapate and her children the prosecution chose not to examine them in support of its case. In the light of this, we examined the evidence of Saghubai Kolapate - P.W.7, another eye witness. 5. The examination in chief of P.W.7 is very cryptic. P.W.7 is a mother of the deceased. She also claims that she was inside the house and she also rushed to the scene of offence alongwith P.W.6. However, she says that when she came out she saw her son Akaram was lying in the land – Gavandar. Then she has stated that accused no.1 made her son to fall and accused no.2 gave blows by stick to her son Akaram. Then she states that accused no.12 was sitting on her son’s chest and remaining 9 accused, namely, accused no.6 – Rama Katrat, accused no.10 – Mhaku Katrat, accused no.9 – Sidhu Gavade, accused no.4 – Balu Gavade, and accused no.5 – Dhaku Gavade were beating her son with sticks. Then she has categorically stated that she did not remember the names of other accused. After saying so she named Ananda Khot and Pandurang Khot as the persons who were beating her son with sticks. However, they are not shown as accused in the case. She has also stated that P.W.6 was also present. In the cross examination, she has categorically stated that when she saw her son Akaram, he was lying in injured condition and his brain matter had come out on the face. She has not named accused no.3, accused no.8 and accused no.11 in her testimony before the court as 7 Appeal No.159.92 assailants. She also has not named Ramchandra Khot as one of the accused. She has added the names of Ananda Khot and Pandurang Khot as assailants, who were beating her son. The names of these two persons were not mentioned by this witness in her statement under section 161 of the Code of Criminal Procedure. Even P.W.6 also did not name these two persons as the persons who were assaulting her son. It is thus clear from the evidence of this witness that accused nos.3, 8, 9, 10 and 11 were not named in her testimony and she named two more persons, who are not shown as accused or named by other eye witness. 6. It is thus clear that their are several inconsistencies in the evidence of P.W.6 and P.W.7. Further, it is pertinent to note that Janatai - P.W.6 claims that she fell on person of her husband in order save him when the accused were assaulting him and in that process her bangles broke. The prosecution, however, has failed to attach the clothes of P.W.6. If the statement of P.W.6 is taken as true her clothes, smeared with blood, would have been the best piece of evidence to prove her presence at the scene of offence. The prosecution, however, for the reasons known to the investigating officer, failed to attach her clothes. 7. That takes us to consider the evidence of Dr.Shashikant Ramchandra Kulkarni (P.W.9), who performed autopsy. He has 8 Appeal No.159.92 mentioned the injuries sustained by the deceased. He also examined the injured witnesses. Insofar as the injuries sustained by P.W.6 and P.W.7 are concerned, they are all described as simple in nature. Insofar as the injuries sustained by the deceased are concerned, they ultimately caused death of Akaram. The cause of death mentioned by the doctor is “Hemorrhage shcok due to depressed fracture of facial skull bones and injuries to the brain”. From bare look at the injuries it is clear that they were serious and that it was a brutal murder. The face of deceased was completely crushed/smashed. However, it is pertinent to note, to which our attention was invited by learned counsel for the respondent that the doctor in the cross examination has stated that tongue of the deceased was not found. In other words, the tongue of the deceased was missing. Even para/column 21 of the post mortem notes also clearly mentions that “tongue not found”. The prosecution has not explained this in any manner whatsoever. The doctor has not stated in the evidence as to how the tongue of the deceased was found missing. If we read medical evidence with the evidence of the two eye witnesses, as has been rightly observed by the trial Court, it creates doubt about their testimonies. The eye witnesses have not made any reference to the tongue of the deceased. On the contrary both the witnesses have clearly stated that when the deceased was being attacked he was shouting “Mello Mello” (dying, dying). We have examined this circumstance also by going through the inquest panchnama so also 9 Appeal No.159.92 the spot panchnama. Both these panchnamas do not make any reference to the tongue of the deceased. If, as is seen from the medical evidence, the tongue was not found or was missing, how could the deceased shout for help. This undoubtedly make the ocular evidence of P.W.6 and P.W.7 doubtful. 8. In this backdrop, we also examined the time factor brought on record by the defence. Dr.Kulkarni (P.W.9) has clearly stated that the death of Akaram occurred within six hours of taking last meal. In the complaint, P.W.6 has stated that on the date of incident Akaram had taken food/lunch (Jevan) at 10 am. If what complainant states in the FIR is true then approximate time of the incident would be somewhere between 4 and 5 pm. The trial Court has taken this into consideration to hold that the eye witnesses may not have seen the incident at all and/or are not telling the whole truth. Then the delay in filing the FIR was also taken into consideration by the learned trial Judge to hold that the delay was not properly explained which was fatal to the prosecution case. 9. From the evidence of eye witnesses we also found that one Vithoba and Babu Shelake also witnessed the incident. As a matter of fact, they immediately rushed to the village and informed the incident to Ananda Patil (P.W.1), who in turn made telephone call to the police. Vithoba and Babu Shelake, must have informed Ananda 10 Appeal No.159.92 Patil as to who assaulted the deceased – Akaram, but still while making phone call to the police Ananda Patil did not make any reference to the names of accused. This also, as has been observed by the trial Court, creates doubt as to whether the so called eye witnesses had actually seen the incident. 10. Insofar as the evidence brought on record in the form of panchnamas and the report of chemical analyser in respect of the blood stained clothes of the deceased and of the accused are concerned, in our opinion, the trial Court has considered it in proper perspective. In paragraphs 25 and 26 of the judgment the trial Court has made the observations, which, in our opinion, are correct and do not deserve to be either set aside or discarded. The relevant observations in paragraphs 25 and 26 of the judgment read thus: “25. So far as evidence brought on record by the prosecution in respect of discovery is not trustworthy. P.W.2 – Shivaji Jadhav is examined to prove memorandum (Ex.28, 29 and 30) pertaining to accused no.1 Ganu Khot, accused no.5 Dhaku Gavade, accused no.4 Balu Gavade respectively and to prove subsequent panchnamas (Ex.28-A, Ex.29-A, and Ex.30-A). Said witness is not independent as he belongs to Shivsena. The police could have procured independent witness. So far as discovery from other accused nos.12 Janappa Katrat, accused no.9 Sidhu Gavade and accused no.7 Anna alias Ananda Khot is concerned it has not been 11 Appeal No.159.92 proved since the panch in that regard viz. P.W.5 Rangrao Khopade turned hostile and did not support the prosecution. 26. The C.A. report (Ex.59) shows that clothes which were on person of deceased viz. full shirt, Bandi, underwear and Tulaci Mal (Tulaci neckless) were having blood group A. It shows that blood group of deceased is blood group A. They are article nos.10 to 13 as shown in C.A. report (Ex.59). Cap found at spot purporting to be of deceased, dry leaves, Bambu sticks, wooden stick, pieces of Bambu stick, article nos.1 to 6 shown in said C.A.report (Ex.59) are also having blood group A. Some clothes and sticks seized at instance or from some of the accused viz. accused no.1 Ganu Khot, accused no.4 Balu Gavade, accused no.5 Dhaku Gavade, accused no.7 Anna alias Ananda Khot, accused no.9 Sidhu Gavade and accused no.12 Janappa Katrat are also having blood group A. They are articles nos. 14, 17, 20, 21, 22, 24, 26, 28, 30 and 31 as shown in C.A. report (Ex.59). The fact that the last group of articles is having blood group A is not sufficient to warrant the guilt of the accused. Other articles seized from accused nos.1 Ganu Khot, accused no.4 Balu Gavade and accused no.5 Dhaku Gavade viz. article nos.16, 18 and 23 are having blood groups “A” and “O”. It is not helpful to the prosecution. Other articles nos. 4,7 and 8 as per C.A. report (Ex.59) do not show any blood group but only it is reported that they were having human blood. So also is the position in respect of article nos.25, 29 and 15 in C.A. report (Ex.59). 11. We do not find any reason to take a view at variance with the 12 Appeal No.159.92 one reached in the order of acquittal passed by the trial Court. The conclusions recorded by the trial Court are based on appreciation of oral evidence. Similarly, we do not find that the reasons recorded by the trial Court are perverse or unreasonable. 12. Thus, we have re-appreciated the entire evidence on record which, in our opinion, is definitely not sufficient to hold that the prosecution has proved beyond reasonable doubt an involvement of the accused. The findings recorded by the trial Court cannot be termed as perverse. The jurisdiction of this court in dealing with an appeal against the order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality. In the present case, it cannot be stated that the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously. As a matter of fact, the learned APP could not and did not point out either manifest illegality or perversity in the conclusion drawn by the trial Court. In the result we confirm the order of acquittal. The appeal is accordingly dismissed. The bail bonds, if any, stand cancelled. (RAJESH.G.KETKAR,J.) (D.B.BHOSALE,J.)