Cr.Appeal/282/1996 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 282 OF 1996 The State of Maharashtra ..Appellant Versus 1. Sahebrao Daulat Patil Age 44 years, 2. Bajirao Deoram Patil, Age 26 years, 3. Vijay Katthu Girase, Age 22 yeas, 4.Hilal Soma Mangale, Age 51 years, All residents of Bhadane Tq. Sindhkheda, Dist.Dhule. ..Respondent ... Shri V.D.Godbharale, APP for appellant, Shri S.P.Brahme, Advocate for Respondent 1, Shri R.M.Deshmukh, Advocate for Respondents 2 & 3,& Shri P.R.Patil, Advocate for Respondent 4. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : September 15, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival submissions, at length, on earlier dates. 2. This is the appeal preferred by State of Maharashtra, challenging the judgment and order of acquittal, passed on 28.7.1993 by the learned Cr.Appeal/282/1996 2 Additional Sessions Judge, Dhule in Sessions Case No.119 of 1992. 3. All the four accused / present respondents were tried for the offences punishable under Sections 302 and 323 read with 34 of the Indian Penal Code (“IPC” for brevity) and were acquitted of all the charges. 4. The case of prosecution, in nut-shell, is as under:- 5. There were two political groups in the village Hatnur and village Bhadane in taluka Sindhkheda of District Dhule. Two victims, namely, Mohan Patil and Bhagwant Borse and other prosecution witnesses were belonging to one political party, whereas, all the four accused / respondents were belonging to another political party and there were several criminal cases, inter se, between these persons and some of them have ended in acquittal. On 1.10.1992, apparently, during Navaratri festival, there was a programme arranged in village Hatnur of showing video film to the local residents. It was Cr.Appeal/282/1996 3 so arranged by victim Mohan. For such programme, both the victims and their other friends, including PW 5 Sunil and PW 7 Vasant, had been to village Hatnur. After the video programme was over, at mid- night between 1st and 2nd October 1992, both the victims and their associates, including PW 5 Sunil and PW 7 Vasant, started coming back to their village Bhadane. They all were on four bicycles. When they came near one water stream on the road between Bhadane and Hatnur villages, the incident of assault occurred. On that midnight, four assailants - allegedly present respondents, came on the road, armed with Axes and Shingades (Sticks). They assaulted both the victims with the help of these weapons. The incident was witnessed by PW 5 Sunil and PW 7 Vasant, who were accompanying the victims on the bicycles. Original accused No.1 Sahebrao and accused No.4 Hilal were allegedly having Axes in their hands and accused No.2 Bajirao and accused No. 3 Vijay were allegedly having wooden Shingades (Sticks) in their hands. Allegedly, these were the respective weapons used by the accused persons, as per PW 5 Sunil and PW 7 Vasant – alleged eye witnesses. Cr.Appeal/282/1996 4 6. The assault on both the victims was so severe that both of them fell on the ground in the pool of blood on receiving fracture injuries to their head and other parts of the body. After the assault, the accused flee away from the spot. The alleged witnesses - PW 5 Sunil and PW 7 Vasant - came back to village Bhadane and contacted Sudam – brother of victim Mohan. Apparently, said Sudam was Sarpanch of the said village during the relevant time. Information was given to Sudam by the said witnesses and all of them, along with few other friends, went to the spot and found both the victims lying on the ground, who were already dead. Thereafter, said persons went to the Police Station at Sindhkheda. The Police Officer on duty, along with other staff, reached the spot and ascertained the situation and found the dead bodies of both the victims. The Police party came back to the Police Station at about 5.00 a.m. on 2.10.1992. First information report was registered on the complaint given by PW 5 Sunil. Apparently, in the first information report, names of only three accused were mentioned and name of accused No.4 Hilal was not Cr.Appeal/282/1996 5 mentioned. He was referred as unknown person. However, in the supplementary statement, given in writing on the next day, name of said accused No.4 Hilal was disclosed to the Police by PW 5 Sunil. Apparently, that time, the Sarpanch and Advocate on behalf of the complaining party were present for handing over the supplementary statement to the Police. 7. Certain factual position can be narrated in order to ascertain the scope of present appeal:- (1) Though all the accused persons were arrested, accused Nos.1 to 3 on 2.10.1992 and accused No.4 much later on 16.10.1992, no arrest panchanamas were prepared. (2) Clothes of the accused persons were not seized. (3) Nothing was recovered at the instance of any of the accused, much less, any incriminating articles / weapons. (4) One Axe was found on the spot and there were no blood stains on the said Axe. Cr.Appeal/282/1996 6 (5) There were no street lights on the Bhadane and Hatnur road and the incident of assault had occurred on the mid-night, when there was darkness around and the bicycles of the complainant party had no Dianamo facility nor any torches were with them. (6) According to the alleged eye witnesses - PW 5 Sunil and PW 7 Vasant, all the assailants were wearing white baniyans and red half pants. (7) According to PW 9 Investigating Officer, on knowing the incident at the Police Station, he went to the spot prior to recording of the first information report, along with both the alleged eye witnesses PW 5 Sunil and PW 7 Vasant and also Sudam, the then Sarpanch of village Bhadane, whereas, according to PW 5 Sunil and PW 7 Vasant, they all along remained at the Police Station till next day early hours of 5 a.m. and only police party with Sudam went to the spot and PW 5 Sunil lodged his complaint at about 5 a.m. on return of the police party. 8. We have observed that the substantive evidence of PW 5 Sunil and PW 7 Vasant has been critically examined by the learned Sessions Judge in Cr.Appeal/282/1996 7 order to ascertain their authenticity so also it is seen that the learned Sessions Judge has critically examined the Station Diary entry (Exhibit 76), which was produced during the cross-examination of the witness, which is regarding the intimation, first in point of time, given by Sudam Patil to the Police regarding commission of offence, in which there are no names mentioned of any of the accused persons. We have seen that, what was weighed with the learned Sessions Judge was contents of said Exhibit 76 and also the factual position that the first information report was lodged at about 5.00 a.m. only after the Police party came back from the spot of offence. Another circumstance that weighed with the learned Sessions Judge was that the spot was visited by the Investigating Officer (PW 9) along with Sarpanch Sudam and apparently this had prompted the Sessions Court to opine that there was concoction of the story and false implication of the accused persons. We have also seen that certain factual position mentioned above, as not having street lights on the spot, not finding any incriminating articles at the instance of any of the accused and non-mentioning of the name of accused No.4 at the initial stage of Cr.Appeal/282/1996 8 lodging of the complaint, weighed with the learned Sessions Judge. 9. Apart from the above mitigating circumstances, leading to the acquittal of the accused persons, it was also ascertained by the learned Sessions Judge that there was a possibility of some thieves attempting to extort valuables from the victims and their associates on the relevant night. This finding was probably because of the answer given by the alleged witnesses PW 7 Vasant that all the assailants were wearing white baniyans and red half pants. Apparently, this answer of the alleged eye witness led the Sessions Court to accept the defence on behalf of the accused as to some other robbers / thieves intercepting the victims and their friends and in that process, causing severe injuries leading to death of the victims. In arriving at this possible happenings, the learned Sessions Judge had discussed the evidence as to nothing brought before the Court by the prosecution regarding finding of seizure of machinery / articles used for showing the video film. The learned Sessions Judge has discussed this finding and came Cr.Appeal/282/1996 9 to the conclusion that the failure of the prosecution to establish as to what had happened to the electronic equipments like VCR etc. fortifies the defence of the accused, on preponderance of probabilities, as to such equipments might have been stolen by the assailants / robbers. 10. In the final analysis, it has been observed by the learned Sessions Judge that there is a doubt regarding PW 5 Sunil and PW 7 Vasant being the actual eye witnesses, inasmuch as, though allegedly the names of at-least accused Nos.1 to 3 were given to Sudam - Sarpanch of the village, he did not mention such names and mentioned regarding assault by unknown persons on the victims while giving intimation to the Police, which has been recorded in the Station Diary (Exhibit 76). The Sessions Court has dis-believed the testimony of PW 5 Sunil and PW 7 Vasant and thus held that there was concoction for impleading the names of the accused persons. 11. On examining the reasoning given by the learned Sessions Judge in arriving at the conclusion Cr.Appeal/282/1996 10 of acquittal, we are of the considered view that there is nothing on record to discard the said view taken by the learned Sessions Judge and to view the matter differently, so as to re-agitate the issue and to re-appraise the material, more so, considering the scope of this Court in the appeal against acquittal. 12. In the result, there is no merit in the present appeal preferred by the State and hence the same is disposed of by the following order:- ORDER Criminal Appeal No. 282 of 1996 (State of Maharashtra Versus Sahebrao Daulat Patil and others) stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl