1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.154 OF 1992 1. Kerappa Narayan Bhuse 2. Sanjay Vishnu Bhuse 3. Shankar Pandurang Padvalkar 4. Jeetendra Sanjay Bhuse 5. Sadhu Bhagwat Shinde Appellants (Org.Accused Nos.1,2,4 6 and 7) Vs. The State of Maharashtra Respondent Mr. A. P. Mundargi with Mr. Niranjan Mundargi and Mr. Jaydeep Mane for appellants. Mr. J. P. Yagnik, APP for State. CORAM: B.H.MARLAPALLE & A.A.SAYED,JJ. Reserved on : April 15, 2010. Pronounced on: June 7, 2010. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. In Sessions Case No.47 of 1991 in all 42 accused faced trial for the offences punishable under Sections 147, 148, 149 of IPC and Sections 302, 307, 337 and 323 each read with Section 149 of IPC. The learned II Additional Sessions Judge at Solapur by his judgment and order dated 6/3/1992 was pleased to convict accused nos.1, 2, 4, 6 and 7 for the offences punishable 2 under Sections 147 and 148 of IPC and Sections 302, 323, 427 and 452 each read with Section 149 of IPC and hence this appeal by the said five accused. During the pendency of this appeal one of the appellants i.e. Shri Sanjay Vishnu Bhuse (accused no.2) died on 3/3/2000 and, therefore, the appeal stands abated qua the said accused and it survives for accused nos.1, 4, 6 and 7. 1A. Shri Trimbak Shinde, a resident of Aundi, Taluka Mohol, Dist. Solapur, an influential political leader at the Taluka and District level had five sons i.e. Nashikrao, Dattatraya, Apparao, Ashok and Anil. Apparao is an Advocate practicing at Solapur and remaining four sons were at the village. Ashok was the Police Patil. For more than 15 years the members of the Village Panchayat used to be elected unopposed and mostly as per the choice of Shri Trimbak Shinde or his sons and Shri Trimbak Shinde was elected to the Panchayat Samiti of the Zilla Parishad. However, in the year 1989 his writ did not work and, therefore, the elections were held in the month of September, obviously with two different panels, one headed by Shri Apparao Shinde and the other one of Shri Kerappa Narayan Bhuse (accused no.1), for all the 11 seats and the panel of Apparao got 3 the majority of six seats whereas the panel of accused no.1 had to be happy only with five seats. Consequently, Apparao came to be elected as the Sarpanch with Harishchandra Maruti Kashid – PW 14 as the Deputy Sarpanch. The prosecution alleged that accused no.1 and his party as well as the associates, forcibly obtained the resignation from PW 14 Kashid from the post of Deputy Sarpanch as well as member of the Village Panchayat and the five members of the panel of accused no.1 also submitted their resignations. All the six resignations were sent by post to the Sarpanch on 14/5/1990. Thereafter PW 14 addressed a separate letter to the Sarpanch stating that he had not resigned and he was forced to resign and, therefore, the resignation letter received from him should not be treated as resignation. Shri Apparao Shinde, the Sarpanch accepted this request and in the meeting held on 31/7/1990 none of the remaining five members who had submitted their resignations were present and the resignations came to be accepted. Thus there was a rivalry between the two groups one led by Shri Apparao Shinde and the other one led by accused no.1. As per the prosecution case on 21/8/1990 at about 9 p.m. accused nos.1 to 31 along with other ten persons armed with 4 weapons like wooden sticks, swords/axes and iron bars had gone to the wada (village bungalow) of Shri Trimbak Shinde. Trimbak Shinde and his son Apparao were residing at Solapur whereas the remaining brothers except Dattatraya were staying in the wada along with their families and Dattatraya was staying with his father-in-law whose house was just about 2-3 houses beyond the wada in the same village. Accused no.1 shouted in the name of Nashikrao and questioned whether he had asked PW 14 to withdraw his resignation and on that count he started abusing. The other accused persons who had come with accused no.1 also started doing the same. PW 3 – Ashok Shinde asked them not to abuse and go back to their respective homes and at this time stone pelting started and, therefore, Ashok Shinde closed the main door of the house from inside. Stone pelting continued on the windows and within a short time, from the adjacent house staircase accused nos.1 to 11 entered into the room occupied by Nashikrao on the first floor/terrace. Accused no.9 was holding an iron bar. Accused no.1, accused no.2 and accused no.3 were armed with swords. Accused no.1 started assaulting Nashikrao with sword and they ran away after Nashikrao came down through the staircase. Shri Janardhan Gore PW-13 also received injuries while he was trying to 5 intervene in the assault and he was sitting with Nashikrao at the relevant time. Nashikrao collapsed and died and Janardhan Gore’s son Anil came to the wada and took him away on his motorbike and admitted him in the hospital at Solapur. Ashok Shinde left the wada at 1 a.m. and reached the police station at Mohol and lodged his complaint at about 7 a.m. on 22/8/1990. PSI Prakash Ghadge – PW 18 reached the spot, drew the inquest panchanam (Exhibit 50) and spot panchanama (Exhbit 51). He also recorded the statements of Janardhan Gore – PW 13, Harishchandra Kashid – PW 14 and Vithal Kamble. The dead body of Nashikrao was sent for post mortem to the Civil Hospital at Mohol and Dr. Anil Mehatrao – PW 11 conducted the post mortem and signed the P.M. report at Exhibit 70. PW 13 – Janardhan Gore’s statement was also recorded while in the hospital at Solapur and he was under treatment in the hospital till 24/8/1990. Some of the witnesses were sent for medical examination. The weapons were recovered and the clothes on their person were seized and all these articles along with the blood mixed mud collected from the spot of incident were also sent for chemical analysis. On 24/8/1990 six accused were arrested. The investigation was then taken over by PW 27 – Chandrakant Dange on 1/9/1990 and he had arrested accused 6 nos.9 to 14 on 2/9/1990. On 6/9/1990 he had arrested accused nos.5 to 10, accused nos.22 and 23. He arrested accused nos. 24 to 30 on 11/9/1990 as well as accused nos.11, 31 to 36 were arrested by PSI Gaikwad on 12/9/1990. On 29/9/1990 nominal arrest of accused nos.37 to 42 was made and on 25th September 1990 motorcycles of accused nos.1 and 2 were seized. The arrested accused who had suffered injuries were sent for medical examination. On completion of investigation the charge-sheet came to be submitted in the Court of Judicial Magistrate, First Class, Mohol on 29/11/1990. The map of scene of offence was drawn at Exhibit 61 and on 4/12/1990 the CA reports were received in respect of the muddemal articles and blood samples and on 4/1/1991 CA reports of blood samples of injured were received. As the case being exclusively triable by the Sessions Court it was committed to the Sessions Court and charge was framed on 27/9/1991. During the trial accused nos. 2, 4 and 6 were released on bail on 31/5/1991 but accused nos.1 and 7 were denied bail and on admission of this appeal all the five appellants came to be released on bail on 8/4/1992. 2. The prosecution examined in all 27 witnesses and the defence examined three witnesses so as to establish that on the 7 date of the incident the house of the complainant did not have power supply (DW 2), PW 13 – Janrdhan Gore had visited accused no.1 in the jail on 17/8/1991 and had told him that the accused were framed in a false case at the behest of Shri Apparao Shinde - Advocate and through the evidence of DW 3 station diary entries of the Control Room at Solapur recorded on 21/8/1990 were placed on record. The evidence of the prosecution, as recorded by the trial court, is under six different categories, namely, (a) motive, (b) medical opinion, (c) eye witnesses, (d) recovery of weapons, (e) availability of light in the Wada and (f) seizure of incriminating articles. To prove the motive of political rivalry on account of the withdrawal of resignation letter by PW 14 – Harishchandra Kashid, the prosecution relied upon the evidence of PW 12 - Shriling Ukhale and PW 26 – Nagnath Zarkar, both Gramsevaks as well as PW 14 - Harishchandra Kashid. For medical opinion, two doctors came to be examined i.e. PW 10 – Dr. Sharadkumar Patil, so as to prove the injuries on PW 13 – Janardhan Gore and PW 11 – Dr. Anil Mehatrao to prove the PM notes at Exh. 70 along with the advance medical certificate of deceased Nashikrao Shinde at Exh.71 as well as the medical certificates 8 issued for injured witnesses i.e. Bharat Chavan, Ramrao Shinde (PW 6), Dattatraya Shide and Jagnath Bhuse (PW 4). So far as ocular evidence is concerned, the prosecution has relied upon the depositions of PW 3 – Ashok Shinde, complainant, PW 6 – Ramrao Shinde, PW 4 – Jagnath Bhuse, PW 13 – Janardhan Gore and PW 15 – Tukaram Shinde. To prove that the Wada where the incident had taken place had electric power supply at the time of the incident, the prosecution examined PW 1 – Nivrutti Kamble, PW 16 – Vithal Kamble, PW 17 – Patalu Gaikwad and PW 5 – Uttam Patil. So far as the recovery of weapons is concerned, PW 7 – Murlidhar Kshirsagar, PW 8 – Ramesh Shinde and PW 9 – Nagnath Bansode were examined as panch witnesses and they had turned hostile. The recovery of weapons and the clothes of accused nos.1 to 4 became doubtful. Even otherwise, as per the C.A. report, the blood group of the deceased Nashikrao detected to be “O” and on the recovered weapons and more particularly the sword, blood of group “O” was not detected and, therefore, this recovery of weapons became inconsequential. The seizure of two motorbikes bearing registration nos. MVP 8427 and MVP 8426 at a place near the house of Sopan Tukaram Doke in terms of panchanama at Exh. 117 dated 1/1/1990 was also found to be inconsequential by the trial court to hold that these vehicles 9 belonged to accused no.1 and accused no.2. It was the case of the prosecution that immediately after the incident accused nos. 1 and 2 had fled on these motorbikes. 3. The main case of the prosecution is, (a) the assault on the deceased Nashikrao as well as PW 13 – Janardhan Gore had taken place in the house of the complainant between 8.30 p.m. and 9 p.m. on 21/8/1990; (b) deceased Nashikrao was assaulted so as to take revenge for his role in requesting PW 14 – Kashid, Deputy Sarpanch to withdraw his resignation and Nashikrao was assaulted with swords and other sharp weapons as well as iron bars and wooden sticks by the accused; (c) while PW 13 – Janardan Gore was in the company of the deceased Nashikrao, during the incident, tried to intervene and save Nashikrao from the assault, he himself became a victim and the accused assaulted him with an intention to kill him. 10 4. PW 11 – Dr. Anil Mehatrao was the Medical Officer attached to Mohol Rural Hospital from January 1990 to 6th January, 1991 and he stated before the trial court that on 22/8/1990 the dead body of Nashikrao Trimbak Shinde was referred to him for post mortem by the Mohol Police Station and he conducted the autopsy on the said dead body between 3 to 4 p.m. on the very same day. On examination he noticed the following external injuries on the dead body of Nashikrao: 1. Incised out wound at right side of the forehead, dimensions 5 cm x 2 cm x 1 cm bone exposed, transverse wound. 2. Incised cut would at right frontoparietal region of the skull, dimensions 6 cm x 2 cm x 1 cm bone exposed transverse wound. 3. Incised cut wound at right scapular region vertical, dimensions 5 cm x 2 cm x 2 cm. 4. Incised cut wound at posterior region of right shoulder posterior wall of right exilla completely damaged, muscle torn, dimensions 15 cm long x 6 cm broad x 4 cm deep. 5. Contusion at back, vertical and horizontal, quadrangle, dimensions length 34 cm, breadth 31 cm thickness 1 cm. 11 6. Abrasion left shoulder 2 cm x 1 cm x ½ cm. Superficial. He also noticed the following internal injuries: 1. Injuries under the scalp; haemotoma under left parietal region. 2. Skull :- Depressed fracture of frontal bone at right side below first wound, size 1 cm x 1 cm. 3. Brain :- Subdural haemotoma seen over right parietal region. As per him all the external injuries were ante mortem and they were sufficient in the ordinary course of nature to cause death. Injury Nos. 1 and 2 were individually sufficient to cause death in ordinary course of nature as they were on vital parts of the body and the age of injury was within approximately 18 to 24 hours. Injury Nos. 1 to 4 could have been caused by sharp cutting weapon like Article 26 – sword. Whereas Injury No. 5 was possible by hard and blunt object like iron bar Article 42 and Injury No. 6 was possible by hard and blunt object like stick – Article 29. In his opinion the cause of death was head injury and haemorrhaegic shock. He confirmed the PM report at Exh. 70 12 and the medical certificate at Exh. 71. In his cross examination he stated that the deceased must not have taken food prior to the incident and about 4 to 6 hours were required for digestion. The bladder was empty. He denied the suggestions that Nashikrao did not receive injuries by sword, stick and iron bar. It is thus clear from the above medical evidence that Nashikrao died a homicidal death on account of the injuries caused on his head which resulted into fracture of skull. He died instantaneously and the death was within 18 to 24 hours prior to the time of the atopsy. 5. PW 10 – Dr. Sharadkumar Patil was the Chief Medical Officer, Civil Hospital at Solapur for about three years and on 21/8/1990 he was on duty between 9 p.m. to 7 a.m. He stated before the trial court that at about 00.45 hours on 22/8/1990 PW 13 – Janardan Gore was brought by his son to the Civil Hospital and he examined him. He noticed the following injuries on his person: 1. C.L.W. 3 cm. X 1 cm. Muscle deep, right parietal region, hard and blunt object, within 24 hours. Simple injury. 13 2. C.L.W. 2 cm. X 1 cm muscle deep, left parietal region, hard and blunt object, within 24 hours. Simple injury. 3. C.L.W. 4 cm x 1 cm muscle deep, occipital region, hard and blunt object, within 24 hours, within 24 hours. Simple Injury. 4. Abrasion 3 cm x 2 cm, left parietal region, hard and blunt object, within 24 hours. Simple injury. 5. Contusion 5 cm x 5 cm. Left wrist, hard and blunt object, within 24 hours. Simple injury. 6. Contusion 3 cm x 2 cm, left forearm, hard and blunt object, within 24 hours. Simple injury. 7. Abrasion two in number, 2 cm x 1 cm and 3 cm x 2 cm, on left thigh, hard and blunt object, within 24 hours. Simple injury. 8. Abrasion two in number 2 cm x 2 cm and 2 cm x 2 cm on Right forearm, hard and blunt object, within 24 hours. Simple injury. He further stated that all the injuries were simple. The patient was advised x-ray and was referred to the surgery ward. The injuries could be within 24 hours and by hard and blunt object. Injury Nos. 1 to 3 were possible by iron bar – Article 42 14 and Injury Nos. 4 to 8 were possible by stick – Article 29. He confirmed to have issued the medical certificate at Exh. 67. The doctor further stated that if immediate medical aid would not have been made available to PW 13, it could be dangerous to his life and injury nos. 1 to 4 were on the vital organ of the body. He further stated that cumulative effect of injury nos.1 to 4 was sufficient in ordinary course of nature to cause death in case medical aid was not available. He confirmed the medical papers at Exh. 68. In cross-examination, he admitted that patient was discharged on 24/8/1990 and all the injuries were simple in nature and no fracture was noticed. No damage was caused to the brain. Though he found that there could be no possibility of the death of the patient, it appears that the opinion given by the said doctor was nothing short of an opinion, not supported by the medical papers. Perusal of Exhs. 67 and 68 clearly indicated that PW 13 had sustained only simple injuries, there was no history of unconsciousness, omitting or bleeding etc. Though the doctor said that he examined the patient, the medical papers indicated that PW 13 was admitted around 1.10 a.m. It was only an off the cuff opinion by this doctor that the injuries nos. 1 to 4 suffered by 15 PW 13 could have caused his death if medical treatment was not made available to him in time and this opinion is not supported from the record. He only tried to strengthen the case of the prosecution by this after thought opinion given before the court for the first time, while in the witness box. Such an opinion is not binding on the court and it is well settled that the medical opinion is only advisory and not final. In our opinion there was no case made out by the prosecution for an offence punishable under Section 307 of IPC in regard to the injuries allegedly suffered by PW 13. 6. At Exh. 178, the accused no.1 had set out his defence in writing and to the following effect: (a) a false and fabricated case was made out by the IO at the behest of the Sarpanch – Apparao Shinde and Police Patil – Ashok Shinde so as to settle the political rivalry and to teach a lesson to him as he was filing complaints against the Sarpanch, Police Patil and also in respect of the mismanagement of the society; (b) on 20/8/1990 Nashikrao was assaulted in the 16 Muslim locality. On 21/8/1990 while PW 13 was sitting near the Tamboli Katta, some persons had assaulted him and subsequently his son had taken him to the Civil Hospital at Solapur and his statement was recorded on the same day. The incident in which PW 13 received injuries and the incident in which Nashikrao died were not one and the same; (c) Police Sub Inspector Ghadge from Mohol Police Station conducted the investigation dishonestly at the influence of Apparao Shinde, Advocate, prepared ante time FIR and all the names of the accused were added in the complaint as per the list given by Advocate Shinde. (d) PW 13 – Janardhan Gore had met accused no. 1 in the jail on 17/8/1991 and informed him in clear terms that Shinde Advocate had filed a false 17 case and had roped in the accused party. He, therefore, tendered his apology and also stated that he was being forced to depose against him during the trial. (e) All the witnesses were from the political party of Advocate Shinde and some of the main witnesses like Advocate Shinde and Anil Gore, the son of PW 13, were not examined and on this count also, the prosecution case was required to be discarded. 7. Coming to the issue of motive, even as per the prosecution, the resignation of PW 14 from the post of Deputy Sarpanch as well as from the membership of the Village Panchayat along with five members i.e. Sanjay Vishnu Bhuse, Ankush Pandurang Sonawane, Rajaram Vaijinath Bhacute, Maruti Madhav Dhodke and Sau. Kalavati Kashinath Sonawane were received by PW 12 and were placed before the Sarpanch - Shri Apparao Shinde. PW 14 submitted an application (Exh.86) 18 and as per the said application, the case of PW 14 was that he never submitted the resignation dated 15/5/1990 and that some ill-minded persons had pressurized him and obtained his signature on a typed paper and that he had not submitted his resignation on his own free will. This letter has been signed by two other persons, namely, Hari Dyandeo Shinde and Nivrutti Dyandeo Shinde as witnesses. The meeting of the Village Panchayat members was held on 30/5/1990 and his resignation was not accepted. There was no whisper of any inimical action by the accused party from 1/6/1990 till the next meeting of the Village Panchayat which was held on 31/7/1990. In the cross- examination of PW 14 improvement was brought out in respect of the alleged threat given by accused no.1 to kill him if he refused to resign. PW 18, when in the witness box, admitted in the cross-examination that PW 14 had not stated before him that accused no.1 had threatened to kill him if he refused to resign from the post of Deputy Sarpanch and member of the Village Panchayat. Thus, the motive behind the offence and as was relied upon by the prosecution, appeared to be very weak. 8. Let us examine the place, time and the manner in which Nashikrao died and more so because the defence has 19 consistently maintained that the incident in which PW 13 Janardhan Gore was injured near the Tamboli Katta was different from the incident in which Nashikrao died a homicidal death. In the evidence of PW 19 – Shivaji Patil, Police Constable, Sadar Bazar Police Station, Solapur, the prosecution brought on record that in the station diary of Sadar Bazar Police Station an entry came to be recorded at 1.25 a.m. on 22/8/1990, on the basis of the information received from the Civil Hospital at Solapur, that PW 13 was assaulted at village Aundi at 8.30 p.m. on 21/8/1990 without any reasons and on account of earlier dispute betwen the parties by Uddhav Ranjan Bhuse and three others with axe and iron bar. He had sustained injuries on both his hands and was admitted in the hospital by his son Anil Gore for treatment. Patient was ok. Advocate Shri Shinde and relation of the patient had gone to Mohol Police Station to file a complaint (Exh.103). DW 3 – Bapuji Bhosale, PSI, Control Room, Solapur was examined by the defence and through his evidence, the control room station diary extracts for 21/8/1990 were brought on record at Exhs. 174 to 176. As per the entry at Sr.No.4 made in the said station diary at 1.45 a.m. on 22/8/1990 Shri Apparao Trimbak Shinde, Advocate from Solapur reached the control room and informed that in Aundi village there was an incident of 20 group clashes (maramari) and in that PW 13 was injured and was admitted in the Civil Hospital at Solapur. In the same village, around the house of police patil, people had gathered and were likely to attack. Accordingly wireless message was sent to Mohol Police Station and PSI Shri Ghadge and other police personnel had left for the said village. In the evidence of PW 19, the extract of police station diary of Mohol Police Station was brought on record and as per the same, at about 2 a.m. on 22/8/1990, the wireless message from control room, Solapur was received and PSI Ghadge and four police constables were sent to village