1 Appeal 358/1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.358 OF 1991 The State of Maharashtra ] Appellant ] (original ] complainant) Vs. Sambhaji Bandu Bhosale ] Agriculturist, ] Respondent R/o.: Morewadi, ] (original At Post Chincholi village, ] accused) Tal. Islampur, Dist. Sangli ] Ms. M.M. Deshmukh, APP for appellant. Mr. M.R. Katikar, Advocate appointed for final hearing. Coram : P.B. Majmudar & R.M. Savant JJ. Date : 9th September 2011 ORAL JUDGMENT (Per P.B. Majmudar, J.) : 1. This appeal is filed by the State against the acquittal recorded by the Sessions Judge, Sangli by judgment and order dated 13/2/1991 in Sessions Case No.142 of 1989. By the impugned judgment, the learned Sessions Judge, 2 Appeal 358/1991 has acquitted the respondent-accused of the offence punishable under Section 302 Indian Penal Code. 2. The prosecution case in brief is that on 8/4/1989 at about 5.30 pm., the Police Patil of village Chincholi namely Shamrao Jadhav went to the Kokrud police station and gave his report pointing out that on that day at about 4.00 pm, while he was at Kokrud, one Rajaram Gunda Jadhav approached him and informed that the accused who works on country liquor still has assaulted his cousin Bapu Dadu Bhosale with a stone and has committed murder of him in Amba Dari. On the basis of such information, the complainant lodged the report. On the basis of said report, the crime No.17/89 came to be registered for the offence punishable under Section 302 Indian Penal Code. 3. The investigation was entrusted to one PSI, Kamathe. The Investigation Officer carried out inquest panchanama and forwarded dead body for post mortem. The post mortem was conducted by one Dr. Landge. The said Dr. Landge opined that the death was caused due to shock on account of injury to vital organ i.e. the brain. The Investigating officer arrested the accused at about 9.00 pm., seized muddemal property under panchanama, 3 Appeal 358/1991 recorded statements of the witnesses and after completion of investigation, filed charge-sheet in the Court of J.M.F.C., Islampur. 4. The learned Magistrate committed the case to the Court of Sessions, as the offence punishable under Section 302 Indian Penal Code is exclusively triable by the Court of Sessions. 5. Learned Sessions Judge framed the charge against the accused at Exhibit-1. The accused did not plead guilty to the charge and claimed to be tried. 6. The prosecution has examined in all 10 witnesses to prove its case. The learned Sessions Judge came to the conclusion that the prosecution has failed to prove its case against the accused and ultimately by the impugned judgment and order acquitted the accused, which order is under challenge at the instance of the State by filing this appeal. 7. The learned APP vehemently submitted that the learned Sessions Judge has committed an error in acquitting the accused, as according to her in view of the eye witness–PW3, who has seen the incident, the Sessions Judge should have convicted the accused by holding that 4 Appeal 358/1991 the prosecution proves its case beyond reasonable doubt. It is further submitted by learned APP that the accused failed to explain the circumstance, which is against the accused that is regarding blood stains on his clothes. It is submitted that since the presence of accused is proved by the prosecution at the relevant time, and since PW3 is the natural witness and presence of PW3 was most natural and cannot be doubted, it ought to have been held that the prosecution proved its case beyond reasonable doubt. 8. Learned counsel for the respondent submits that the learned Sessions Judge has given cogent reasons while passing an order of acquittal and the order of acquittal is not required to be interfered with by this Court, in this appeal. It is further submitted that the so-called eye witness- PW3 is a got up witness and his evidence is not at all trustworthy. It is submitted that the prosecution has miserably failed to prove its case and in the given case even if the two views are possible, the Court may not be interfered with the order of acquittal, recorded by the trial Court. 5 Appeal 358/1991 9. We have heard both the counsel appearing in the matter at length. We have also gone through the evidence adduced by the prosecution during the trial. 10. The prosecution has examined in all 10 witnesses. We will discuss the evidence of the relevant witnesses so as to see whether the prosecution had proved its case. PW1 Sakharam Appa Patil is the panch witness regarding arrest of accused. The evidence of said witness is recorded at Exhibit 10. One Shamrao Babu Jadhav was examined as PW2 at Exhibit 12, who has filed F.I.R. with the Police. The said witness in his evidence stated that that he is Police Patil of Chincholi since last 5 years. As per his evidence, from his village, Morewadi is at a distance of about 1 km., Kokrud is at a distance of about 3 kms. and Amba Dari is at a distance of ½ km. According to him, on 8/4/1989 at about 3.30 pm., when he had been to Kokrud bus stand, one Rajaram Gunda Jadhav of his village met him and reported that accused Sambhaji Bhosale committed the murder of Bapu Bhosale. According to him, immediately he went to the spot on a bicycle and found dead body of Bapu Bhosale lying in Amba Dari. Thereafter 6 Appeal 358/1991 he went to the police station and gave a complaint. The F.I.R. is at Exhibit 13. 11. In the cross-examination, it is admitted by this witness that the area in question is hilly area and Amba Dari is about 20 to 25 feet deep. He denied the suggestion that there are trees and bushes in that deep valley. He denied the suggestion that whether Rajaram Gunda Jadhav runs a distillery for manufacturing country liquor in Amba Dari. He has stated that he had been to Kokrud village as he was having pain in his leg. In the cross-examination, he admitted the fact that he did not deem it necessary to report the incident to the Police immediately, as he wanted to ascertain the truthfulness of the say of Rajaram Gunda Jadhav. In his cross-examination, he further stated that Rajaram Jadhav is his distant relative. He denied the suggestion that at the instance of Rajaram Jadhav, he gave false report. In his complaint, the complainant stated that he was told by Rajaram Gunda Jadhav that accused has committed murder of Bapu Dadu Bhosale by stone blows. 12. The prosecution has also examined one Bandu Bapu Gholap, PW3 (Exhibit 14), who had witnessed the incident in question. The said witness stated in his examination-in- 7 Appeal 358/1991 chief that on the relevant day, when he took his cattle for watering to Amba Dari, on the way, he saw the accused and deceased-Bapu Bhosale scuffling with each other in Amba Dari. According to him, after watering the cattle, when he returned back, he saw Bapu Bhosale lying on the ground and accused lifted stone and threw it on the head of Bapu Bhosale. According to him, accused ran away and he saw accused from a distance of 50 feet throwing the stone at the deceased. In the cross-examination, he has stated that at the time of incident, his son was employed as Police Patil. He further stated that occasionally he offered tap water to his cattle. The witness further stated that Amba Dari is deep valley, but denied the suggestion that there are bushes and trees in that valley. He denied the suggestion that from the upper side of the valley, one cannot see what is happening in the valley. According to him, while he was proceeding towards stream, deceased- Bapu had seen him. He further admits that he did not deem it necessary to intervene into the scuffle nor he heard any shouting of Bapu for help. According to him, when he saw deceased- Bapu lying on the ground, he did not see any injury on his face. He further stated that the 8 Appeal 358/1991 accused thrown one stone on the head of Bapu and ran away. He further stated that he did not tell anything to anybody at the house. He has also stated that the accused has not given any threat to him. According to him, on next day, he was called by the police to the police station. He denied the suggestion that Rajaram Jadhav was in the police station. The witness further states that he has not mentioned in his statement that he was frightened. According to him, he did not think it fit to report the incident to the family members of deceased-Bapu. 13. The prosecution also examined PW4, Rajaram Gunda Jadhav, (Exhibit 15). According to him he was working as Mukadam for the contractors. According to him, about 2 years back, he was at Kokrud and at the relevant day, about 4.00 pm. he went to Chincholi, the accused met him at bus stand and appeared frightened. When he asked the reason as to why he was frightened, accused told him that he has committed murder of Bapu Bhosale and requested to save him. According to him, thereafter he went to the house of Police Patil, but he had gone to Kokrud. When he returned to Kokrud, Police Patil met him at the bus stand, he informed the Police Patil that the accused committed 9 Appeal 358/1991 murder of Bapu Bhosale in Amba Dari. Thereafter Police Patil went to Chincholi. According to him, he knew accused as well as the deceased. According to the said witness, the accused was not having cordial relations with deceased-Bapu. In the cross-examination, he has stated that when he went to report the incident to Police Patil, he went to the Police Station, but he did not inform the incident to the police after departure of the Police Patil. According to him, he had not narrated the incident to anybody else. According to him, if one intends to go to Morewadi from Amba Dari, it is not required for him to come to the bus stand of his village. The witness also admitted that it did not occur that the accused had come searching for him. The witness denied the suggestion that the accused is not a man of his confidence. He denied the suggestion that deceased-Bapu was his employee. The witness denied the suggestion that the Police Patil was related to him. He admitted that he did nothing to save the accused. The witness denied the suggestion that deceased-Bapu had given any threats to him. He denied the suggestion that he assaulted deceased-Bapu with a stick and murdered him and with the help of Police Patil 10 Appeal 358/1991 and police machinery he has foisted a false case against the accused. 14. The prosecution has examined PW-5, Amiruddin Gulab Mujawar, Police Constable, who had delivered the attached property in a sealed condition to the C.A., Pune and PW-6, Nisar Abul Momin, Circle Revenue Inspector, who had prepared map of scene of offence. 15. The prosecution has also examined PW-7, Pradip Ramchandra Landge, Medical Officer (Exhibit 22). According to him, he was attached to Primary Health Centre, Shirale since 5/3/1983. On 8/4/1989, at about 10 pm., he had received a dead body of one Bapu. The said Doctor conducted post mortem on the dead body on 9/4/1989 between 10 to 11 am. According to the doctor, he found following external injuries on the person of deceased: 1. C.L.W. over chin extending from midlife towards left side, transversely situated, 6 cms. X 2 cms., bone deep, dry blood was present. 2. Lacerated crush injury over face involving both eyes, nose, mouthy and forehead, transversely situated. 12 cms. X 3 cms. with fracture of nasal bone coming out 11 Appeal 358/1991 of injury with fracture of left maxilla, fracture of right maxilla with fracture of frontal bone. All the fractures are at multiple sites. Fracture right maxilla over alveolar margin with fall of central right incisor and premolar. 3. CLW over left parietal region. Obliquely situated extending from right side of frontal region, backwards towards left side, 10 cms. x 2 cm. Bone deep with fracture left and right parietal bone at multiple sites, brain matter lacerated into pieces and extruding through fractures sites and covered with blood clots. The above injuries are anti mortem. According to him, one injury was noticed on right elbow, forearm right shoulder and left shoulder and thigh, which were probably post mortem injuries. On internal examination, fracture of frontal bone at multiple places, fracture of right and left parietal bone at multiple places was found. According to him brain matter lacerated in pieces and extruding through fracture sites, covered with blood clots. According to him, the death was due to shock due to injury to the vital organ i.e. brain. According to him, the death might have been caused 6 hours after the 12 Appeal 358/1991 last meal. According to him, the internal and external injuries were sufficient to cause death, in the ordinary course of events. According to him, if the stone is thrown on the face of a person, who is lying supine on a hard surface, such injuries are possible. In the cross examination, the witness stated that the injuries mentioned in column no. 17 are three distinct and separate injuries, there was no injury on the occipital region. He further states that it is not necessary that there should be three distinct blows by hard substance for causing these injuries. He admitted that injury No.3 is not corresponding to the injuries nos. 1 and 2. He further stated that it is not necessary that if a person lying supine on a high surface is hit by a stone like article 3 should sustain some injury to occipital region with a big force. He denied suggestion, that he agreed with the proposition that the length of injury revealed that the weapon must be a stick. 16. One Amba Bhiwa Bhosale was examined at Exhibit 8. According to him, he knew accused and the deceased, as both of them are his cousins. According to him, about six months prior of the incident, at the time of taking meals, 13 Appeal 358/1991 the accused has quarreled with his brother Shivaji in connection with serving of more rice., and on that day accused quarreled with deceased-Bapu Bhosale. In the cross-examination, he stated that deceased-Bapu was having enmity with number of persons in the village. He further stated that Bapu was serving on canal under Rajaram Gunda Jadhav. He further stated when the accused quarreled with the deceased, he was not present, however he went later on and intervened. 17. The prosecution also examined one Maroti Gholap Ishwara, PW-9 at Exhibit 25. According to him he knew the accused and deceased. On the relevant day, he had taken his she-buffaloes to Amba Dari for watering them. He further stated that the accused was seen manufacturing liquor in Amba Dari, accused called him and offered him one cup of liquor. After his consuming liquor, he left the spot and went to Biur Phata and in the evening, he came to know about murder of Bapu Bhosale. In the cross-examination, he stated that he occasionally consumes liquor. He denied the friendship with accused. He admitted that he is not in visiting terms with the accused. The witness further stated that he had not 14 Appeal 358/1991 approached the police and did not report the incident and that even on the next day also, he did not report the incident to anybody. He stated that after two days of the incident, police recorded his statement and it did not mention in his statement that accused called him and gave one cup of liquor. He denied the suggestion that he was on visiting terms with Rajaram Jadhav. He admitted the fact that he is having cordial relations with Rajaram Gunda Jadhav, but denied the suggestion that at the instance of Rajaram Jadhav, he is giving false evidence. 18. The prosecution also examined one Pandharinath Sarjerao Kamathe, PW-10 at Exhibit 26. The said witness was attached to Kokrud Police Station. He registered the crime on the complaint given by Shamrao Jadhav. In the cross-examination, the witness stated that he knew PW-4, Rajaram Jadhav. According to him, he met Rajaram on that day in between Kokrud to Chincholi, and told him that accused had gone towards Shendgewadi. The witness stated that he is not willing to refer the case diary. He denied the suggestion that at the instance of Rajaram Gunda Jadhav and Police Patil, he has been falsely involved 15 Appeal 358/1991 in the case. The aforesaid is the evidence adduced by the prosecution. 19. We have minutely gone through the evidence produced by the prosecution. It is not possible to accept the submission of the learned APP that the prosecution has proved its case beyond reasonable doubt. It is required to be noted that the complainant, Shamrao Jadhav, who was the Police Patil of the village has stated in his evidence that while he was waiting for bus, the Rajaram met him and informed that accused has committed murder of Bapu Bhosale. The witness thereafter did not report the same immediately to the Police, but went to the spot on bicycle and found dead body at the said place. The witness has stated that he had gone to Kokrud village as he was having pain in his leg. He has not stated as to what treatment he has taken. It is difficult to believe that if a person is having pain in his leg, how he can travel on bicycle by covering long distance for the purpose of visiting the site and to find out the dead body. He clearly admitted that the place of incident is an hilly area. The police station was hardly about 50-60 feet from the bus stand, but instead of going to police station, he had gone to the spot. In his cross- 16 Appeal 358/1991 examination, he stated that he did not deem it necessary to report the incident to the Police immediately as he wanted to ascertain truthfulness of the statement of Rajaram. He admitted that Rajaram Jadhav is his distant relative. He further stated that he is not aware whether Rajaram Jadhav runs a distillery for manufacturing country liquor in Amba Dari. It is required to be noted that Rajaram has denied suggestion that this witness, Shamrao was his relative. This witness stated that Rajaram was his distant relative. It is not difficult to understand as to why PW-4, Rajaram Jadhav instead of reporting the incident to the relative of deceased, reported the incident to the Police Patil. It is also not possible to believe as to how said Rajaram knew that witness- Shamrao is present at the bus stand, Kokrud. So far as evidence of the so-called eye witness, P.W-3 Bandu Gholap is concerned, in our view, the sessions Judge, has rightly found that he is a got-up witness. The version given by the said witness is absolutely unnatural and it is difficult to believe the evidence of the said witness. As per the evidence of said witness, he saw deceased lying on the ground and subsequently the accused gave a crushing blow by stone to the deceased. 17 Appeal 358/1991 According to him, he saw the incident from a distance of 50 feet and thereafter he went to his house. The witness has admitted the fact that his son was employed by Police Patil. The witness has further submitted that he knew Rajaram Jadhav. He admitted that Amba Dari is deep valley. According to him, he saw deceased-Bapu while he was proceeding towards the stream. The theory of scuffle taking place between the accused and deceased is difficult to believe as the said witness has stated that he never tried to intervene between the accused and deceased. If the witness was nearby, it is natural that deceased would shout for his help, but according to the said witness, deceased-Bapu had not shouted for help. According to him, he did not see injury on the face of deceased, when he was lying on the ground. According to him, accused gave one blow by stone on the head of deceased and ran away. The witness did not report the incident to anyone nor even informed the police. There is no material on record to indicate as to on what basis, the Police got information that this witness is an eye witness, as this witness has never tried to point out the incident to anyone including family members of the deceased. Learned APP has fairly pointed 18 Appeal 358/1991 out that there is no material to show as to on what basis the statement of this witness is recorded treating him as an eye witness. According to the said witness, Police called him on second day, for the first time. The investigation carried by the investigation agency creates doubt in our mind. Though the defence has tried to raise the point that the aforesaid act has been committed by PW-4, Rajaram and the said Rajaram had falsely tried to implicate the accused. However, this aspect cannot be examined by this Court. It is clear that the statement of PW-3 has been recorded subsequently who has disclosed name of PW-3. However there is nothing on record to show that PW-3 has seen the incident in question. The learned APP has unable to point out as to how police decided to record the statement of PW-3 and on what information. Apart from this aspect, the evidence of the said witness is absolutely unnatural and not believable. As according to him, the incident had taken place at an hilly area and he saw accused throwing stone, which he saw from a distance of 50 feet. The witness has also admitted the fact that his son was employed by the Police Patil. According to the said witness, he did not think it fit to intervene in the scuffle 19 Appeal 358/1991 going on between the accused and deceased. According to him, he saw deceased-Bapu lying on the ground and he did not see any injury on his face. According to him, the accused threw one stone on the head of Bapu and thereafter ran away. In the cross-examination, he stated that the accused has not given any threats to him and he was called by Police to the police station on the next day. So fas as the evidence of PW-4 is concerned, the said evidence in our view is not reliable at all. According to him, accused confessed before him, the fact about committing murder of deceased. According to him, he has not narrated the incident to anybody except the Police Patil. The witness has stated that if one intends to go to Morewadi from Amba Dari, he is not required to go to bus stand of his village i.e. Chincholi. If that be so, it is surprising that how the accused met him at Chincholi bus stand. The witness has given a false version by saying that he is not related to Police Patil as Police Patil clearly stated that the said witness was in his relation. 20. The learned Sessions Judge has rightly found that there was no reason for the accused to go and inform this witness stating that he has committed murder of deceased- 20 Appeal 358/1991 Bapu. The witness admitted that it did not occur to him that the accused came searching him. The witness admitted that he did nothing to save the accused, even after his request. According to him, there is absolutely no reason for the accused to go to Chincholi bus stand and inform the said incident to this witness. The learned Judge, therefore has rightly not believed