IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.609 OF 2000 CRIMINAL APPEAL NO.609 OF 2000 CRIMINAL APPEAL NO.609 OF 2000 Sharad Bhaskar Chikane ) aged about 27 years, at present ) detained in Yerwada Central ) Prison, Pune, Resident of Gulpoli ) Tal-Barshi. Dist.Solapur, ) Maharashtra. )..Appellant (Org.Accused No.1 Versus 1. The State of Maharashtra ) (At the instance of Vairag ) Police Station, Sholapur. ) 2. Smt.Vanmala Sukhdeo Chikane ) R/o Gulpoli, Tal-Barshi ) Dist. Solapur, Maharashtra )..Respondents ---- Mr.Shirish Gupte Sr.Counsel with Ms.Sharmila Kaushik for the appellant. Mrs.V.R.Bhosale, Addl.Public Prosecutor for the Respondent No.1/State. ---- W I T H W I T H W I T H CRIMINAL APPEAL NO.99 OF 2001 CRIMINAL APPEAL NO.99 OF 2001 CRIMINAL APPEAL NO.99 OF 2001 The State of Maharashtra )..Appellant (Org.Complainant) (At the instance of Police Station officer, Police Station Vairag, Tal.Barshi, Dist.Solapur.) Versus 1. Sharad Bhaskar Chikane ) (Name of Respondent No.1 ) deleted vide Court’s order ) dated 9.4.2001 ) 2. Rajendra Prabhu Chikane ) Age 26 Years ) 3. Shashikant Bhaskar Chikane ) Age 35 Years. ) All resident of Gulpoli ) Taluka Barshi, Dist. Solapur )..Respondents. : 2 : Mrs.V.R.Bhosale Additional Public Prosecutor for the Appellant/State. Mr.Shirish Gupte Senior Counsel with Ms.Ruchita Dhuru for Respondent Nos.2 & 3. ---- Coram : R.M.LODHA & Coram : R.M.LODHA & Coram : R.M.LODHA & R.S.MOHITE,JJ R.S.MOHITE,JJ R.S.MOHITE,JJ Date : 02.03.2005 and 03.03.2005. ORAL JUDGMENT ( Per : R.S.Mohite,J) ORAL JUDGMENT ( Per : R.S.Mohite,J) ORAL JUDGMENT ( Per : R.S.Mohite,J) 1. These two Appeals have been preferred against the Judgment and order dated 31.7.2000 passed by the IInd Additional Sessions Judge, Solapur in Sessions Case No.250/99. By the said Judgment and order the IInd Additional Sessions Judge, Solapur, convicted accused No.1 Sharad Bhaskar Chikane for committing an offence punishable under Section 302 of IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs.6000/-, in default, to undergo further RI for a period of 6 months. Accused Nos.2 & 3 were acquitted of the offence punishable under Section 302 read with section 34 of the IPC. All the accused were acquitted from the charge of committing an offence punishable under Section 37 read with Section 135 of the Bombay Police Act. It was directed that in case the fine amount was realised, an amount of Rs.5000/- be given to Vanmala, the widow of the deceased Sukhdeo Chikane. : 3 : 2. The brief facts of the prosecution case were as under :- (a) That the deceased Sukhdeo Chikane was the Sarpanch of village Gulpoli, Taluka Barshi, Dist. Solapur since 1990. He was a resident of village Gulpoli. The Complainant (PW 1) Vikram Janardhan Chikane who is an eye witness was a cousin brother of the deceased Sukhdeo. Dipak Janardhan Chikane (PW 2) was the real brother of the Complainant Vikram and thus another cousin brother of the deceased Sukhdeo. Avinash Brahmadeo Chikane (PW 3) who is the 2nd eye witness was a close relative of PW 1 Vikram and PW 2 Dipak. Anil Mali (Pw 4) was a person who was from the Shivsena group in the village, of which group the deceased Sukhdeo was the leader. (b) The father of deceased Sukhdeo was Bhaskar. An agricultural land of Bhaskar was situated next to the land of one Kisan Sawant who was his son-in-law. In respect of the said land there was a boundary dispute between the family members of Bhaskar Chikane and Kisan Sawant. Yet another son of Bhaskar by name Shirish had filed Regular Civil Suit No.204/93 against Kisan Sawant and one another : 4 : seeking an injunction. The said suit had been filed on 30.4.1993. On 26.12.1996 the TILR had effected measurement in respect of the disputed areas which were the subject matter of the suit. The prosecution case was that in view of such disputes, there was bad blood and enemity between the deceased Sukhdeo on the one hand and the family members of Bhaskar including his sons. The record indicates that on 13.10.1997, deceased Sukhdeo had also filed a criminal case being Criminal case No.6253/97 in the Court of JMFC Barshi. The said case was filed against accused no.1 Sharad, accused no.3 Shashikant and one of their brother Dhananjay alleging commission of an offences under sections 323, 504 & 34 of the IPC. The evidence indicates that such legal proceedings were pending in the Court when the incident, which is the subject matter of the present case, took place on 16.9.1999. (c) The prosecution case is that on 16.9.1999, at about 9.30 A.M. deceased Sukhdeo alongwith (PW 1) Vikram, (PW 3) Avinash, (PW 4) Anil Mali, Brahmadev Chikane, Babruvan Machale, Sopan Machale, Shridhar Machale, Nagnath Machale, Laxman Shinde and Gautam Chikane started from village Gulpoli in a jeep. They were proceeding to the Sub-Registrar office at village Vairag in order to execute a Sale deed by which one of them i.e. Brahmdeo Chikane was to : 5 : purchase the land of one Sopan Machale, which land was situated at village Gulpoli. (d) The jeep carrying the persons as aforesaid reached the Vairag Sub-Registrar’s office at about 12.00 noon. A Stamp vendor/Bond writer by name Kale scribed the sale deed and thereafter the sale deed was executed in the Sub-Registrar’s office. (e) After the execution of the sale deed at about 1.30 P.M., the aforesaid persons came out of the Sub-Registrar’s office and reached upto their jeep which was standing on the road adjoining the office. At that time accused no.1 Sharad Bhaskar Chikane, accused no.2 Rajendra Prabhu Chikane and accused no.3 Shashikant @ Sheshrao Chikane came running towards them from the eastern side. Accused no.3 threw chilli powder in the eyes of deceased Sukhdeo. At that time accused no.1 gave a blow on the head of the deceased Sukhdeo with a Sattur which he was carrying with him. On receiving this blow Sukhdeo collapsed on the ground. All the three accused Sharad, Shashikant and Rajendra then inflicted blows with the sattur which they were carrying on the head of the deceased. Sukhdeo received several injuries on his head and his brain matter came out of his skull. Thereafter all the accused persons ran away : 6 : towards the east carrying their satturs. PW 1 Vikram Chikane who had witnessed the entire incident ran towards the direction of Vairag police station. He arrived at the police station in a frightened condition at about 1.45 P.M. and narrated the incident to the police. (f) At 2.00 P.M. i.e. within half an hour of the occurance of the incident, the police recorded the FIR (Exh.15) of PW 1 Vikram. In his FIR Vikram named all the 3 accused and categorically stated that they had assaulted the deceased on his head with the koytas which they were carrying with them. (g) On the basis of the FIR (Exh.15) PW-11 PSI Rajkumar Balaji Kendre registered an offence under Section 307 read with 34 of the IPC and 135 of the Bombay Police Act against all the 3 accused named in the FIR. Even while he was recording his FIR he sent his staff members ahead to the spot of incident for taking the injured to the hospital. He himself followed and reached the spot of the incident a little later. On reaching the spot he found that a lot of blood could be seen on the spot. Two pieces of brain matter and a piece of a skull were also found on the spot. He saw a goggle, a pair of slippers, a steel glass and a Rs.10/- note on the spot. He prepared a spot panchanama (Exh.25) in the : 7 : presence of panch witness in respect of the seizure of the aforesaid articles as well as seizure of blood stained soil. Articles 1 to 9 produced before the Court were the articles which were seized under the said panchanama. (h) Even before the arrival of PW 11 PSI Rajkumar Kendre, the deceased Sukhdeo had been removed from the aforesaid scene of the offence by PW 3 Avinash, PW 4 Anil Mali and one Vilas Sawant. These 3 persons had put Sukhdeo in another private jeep and had rushed him towards the Solapur Civil Hospital. While they were proceeding towards the hospital they saw PW 2 Dipak on the way near Naka No.3. The jeep was stopped and Dipak also boarded this jeep. By that time they reached village Nanaj, they found that the body of Sukhdeo had cooled. They however, proceeded to Solapur civil hospital where Sukhdeo was declared dead on admission. While carrying the body of Sukhdeo the clothes of PW 3 Avinash Chikane and Vilas Sawant had got stained with blood. Articles 19 & 20 produced before the Court were the clothes of (PW 3) Avinash which subsequently came to be attached in the course of investigation. (i) At the hospital, the police made enquiry with Dipak (PW 2) and Dipak narrated that Sukhdeo had been injured near Sub-Registrar’s office Vairag by : 8 : the 3 accused with a sattur and by a pistol. One Police head Constable Abdul Shaikh (Court witness no.1) was then on duty at the Civil hospital and he was a Police officer to whom Dipak made his disclosure as aforesaid. (CW 1) Abdul Shaikh then prepared an inquest panchanama in which it was mentioned that Sharad Chikane, Sheshrao Chikane and others had fired a bullet from the revolver and had caused injuries to Sukhdeo by means of a sattur used for cutting sugarcane. Abdul Shaikh made an entry in the station diary maintained at the police chowky at the Civil hospital. A copy of this entry was exhibited at (Exh.66) during the trial through the evidence of (CW 1) Abdul Shaikh. (j) In the meanwhile, (PW 11) PSI Kendre had recorded the statement of 8 witnesses such as Narsinh Kale, Kamalakar Govardhan and others. He sent a police party for searching out the accused persons and at 6.15 in the evening accused no.1 and accused no.2 were accosted and brought to the police station. They were arrested under an arrest panchanama (Exh.50) conducted between 8.15 hours to 19.00 hours. (k) At the Civil hospital the post mortem on the dead body of Sukhdeo commenced at 6.30 P.M. and was completed at 8.30 P.M. The following external : 9 : injuries were found on the body of the deceased Sukhdeo :- Purforating chop wounds over front of head involving forehead and frontal regions extending between lt frontal (at 2" above lt ear) to back of Rt ear measuring about 14" x 3" cavity deep ; vault of skull is fractured into multiple pieces and cranial cavity is exposed to exterior exposing the lacerated brain. Anatomical continuity is lost, deformity due to disruption of scalp and skull into multiple pieces present disrupted scalp tissue and fractured bony fragments embedied and driven inside the brain and cranial cavity. Damage is irregular and directed obliquely from lt fronto parietal region to the level of nose and orbits on centre and upto rt. ear on right side. 2. Oval shaped purporting wound over Rt.side of face in maller region 1" x112" x deep upto maxillary sinus. Fractured bony fragments driven inside. No E/o blackening soothing or sinjing. 3. Irregular purporting injury at base of nose of size 2&1/2" x 1/2" cavity deep cutting through nasal bone. Skin flap separated exposing the cutbone associated with fracture underneath involving nasal bone, bones of anterior cranial fossa. 4. Contused abraision over face in between injury no.2, 3 described associated with extra vassation and fracture underneath. 5. Transversely situated contusion over rateral aspect at rt. side of neck measuring 3" in length associated with extra vassation underneath (dark red in colour). 6. Incised chop wound over back of head in Rt. occipital region vertically situated measuring 4" x 1/2" x cavity deep. Bone cut obliquely into pieces and driven inwards. 7. Chop wound vertically situated behind Rt. ear 3" x 1/2" x bone deep ends are split injury is crossing injury no.1 : 10 : resulting into deformity and loss of anatomical continuity at Rt.ear. (l) The doctor opined that all the injuries were fresh and caused due to a heavy sharp object. That injury no.1 was due to multiple blows in the same region. He found that there was a fracture of the vault of the skull, base of the skull and the facial bones with deformity. He found that anatomical continuity was lost in the frontal region of the skull. There was extravassation in the right mastoid and right side of ausopotil region. He found a perforating injury to the vault and partly particularly separated base fractured in anterior cranial fossa and right occipital bone. The brain matter was lacerated and the fractured fragments were embeded in brain material involving frontoperiatal lobes on both sides, with subdural haemorrhage all over the brain surface, brain stem and cerebellum. Blood clods were present. (m) Apart from the aforesaid internal and external injuries the doctor who performed the post mortem i.e. (PW 8) Ajay Keoliya noted that reddish chilli powder like material was found over the chest of the deceased. He opined that the cause of death was "perforating chop wounds over head and face, associated with fracture, skull, facial bone and cerebral laceration." : 11 : (n) On 17.9.1999 accused no.1 Sharad disclosed that he had parked a two-wheeler Bajaj M-80 vehicle bearing No.MH-13-C-4157 on the rear side of the Girls’ school at Vairale. The said vehicle was seized under a panchanama in the presence of 2 panchas, of which (PW 2) Dipak was one of the panch. It was the prosecution case that this vehicle had been used by the accused to flee from the scene of the offence. On 17.9.1999 PW 3 Avinash and Vilas Sawant came to the police station and as their clothes were found to be blood stained, they were seized by PW 11 PSI Kendre under a panchanama (Exh.26). On 17.7.1999 PSI Kendre recorded the statement of Dipak (PW 2). (o) On 18.9.1999 PSI Kendre recorded the statements of several additional witnesses. Accused no.3 Shashikant was accosted by the police and was produced before him. PSI Kendre arrested accused no.3 and seized his blood stains clothes under a panchanama (Exh.28) in the presence of panchas, one amongst whom was (PW 6) Rameshwar. (p) On 19.9.1999 accused no.3 disclosed that he had hidden certain weapons under a heap of stones near the well of the field of one Nandkumar within the boundary of village Ladole. In pursuance of the : 12 : memorandum prepared the police, alongwith accused no.3 the police party proceeded to the spot disclosed by accused no.3 and discovered 2 satturs kept hidden in a heap of stones. These 2 satturs were articles-25 & 26 produced before the Court. The aforesaid 2 satturs were seized under a panchanama (Exh.40) in the presence of 2 panchas, one of whom was (Pw 9) Bhau Pawar. It may be mentioned at this stage that (PW 9) did not support the prosecution case and therefore, this panchanama had to be proved by the prosecution through the evidence of the Investigating officer. It was found at the time of the seizure of the weapons that the handles of these weapons were blood stained. (q) On 22.9.1999 the Investigating officer PSI Kendre sent all the accused to the primary health centre for collection of their blood samples. (r) On 27.9.1999, under his covering letter dated 23.9.1999, 25 articles seized during the investigation were sent by the Investigating officer to the Regional Forensic Science Laboratory for a Chemical Analyser’s report. In the meanwhile, the forensic medical department of the V.M.Medical college had also sent the red chilli powder like substance for analysis to the Regional Forensic Liboratory. The blood sample of the accused and : 13 : deceased were also sent for analysis to the said laboratory. In due course, the Investigating officer received C.A. reports in respect of all the articles sent. Two reports dated 31.1.2000 indicated the finding of the C.A. on the 25 articles and his further finding that the red powder found ont he chest of the deceased was infact chilli (capsicum) powder. (s) The Investigating officer had in the meanwhile, received the post mortem report. He collected the certified copy of the plaint & complaint in the litigation pending between the parties. Exh.52 was the certified copy of the plaint in RCS No.204/93 and Exh.53 was a certified copy of the complaint filed by deceased Sukhdeo against accused no.1, accused no.3 and one of their brother Rajendra. He also collected a copy of the map of measurement in respect of the disputed land made by TILR and a copy of the sale deed executed on 16.9.1999 in between Shankar Chikane and Sopan Machale. (t) Ultimately on completion of his investigation, PW 11 PSI Rajkumar Kendre filed the charge-sheet. 3. At the trial, the Sessions Judge framed charges against the accused for committing offences punishable under Section 302 read with 34 of IPC and : 14 : under Section 37 (i) read with section 135 of the Bombay Police Act. The accused pleaded not guilty to the charges. In order to prove their case the prosecution examined as many as 13 witnesses. On an application on behalf of the accused, Police head constable Abdul Shaikh was called and examined as Court witness no.1. On behalf of the defence, 2 persons claiming to be eye witnesses were examined. They were (DW 1) Shridhar and (DW 2) Tayyab Pathan. After recording the statements of all the 3 accused under Section 313 of Cr.P.C. and hearing the arguments of both the sides, the IInd Additional Sessions Judge, Solapur was pleased to pass the impugned Judgment and order, convicting accused no.1 Sharad and acquitting accused no.2 and accused no.3 as aforesaid. Thus the aforesaid 2 appeals have come to be filed before us. 4. We have heard both the sides and perused the entire evidence on record. On behalf of accused no.1 Sharad Chikane it was contended that having partly dis-believed all the eye witnesses and having given the benefit of doubt to accused no.2 Rajendra and accused no.3 Shashikant, there was no justification in convicting accused no.1 Sharad on the evidence of the same eye witnesses. It was contended that all the eye witnesses had deposed to a single incident and if these witnesses were found : 15 : unreliable and unbelievable in so far as accused nos.2 & 3 were concerned, it would have been proper to extend the same benefit of doubt to accused no.1 Sharad. It was contended that out of the 3 eye witnesses examined, 2 were close relatives of the deceased Sukhdeo and one was his political associate. It was contended that independent eye witnesses such as a Bond writer Kale who was present at the scene were not examined by the prosecution. It was also contended that the prosecution had supressed the police diary entry (Exh.66) recorded at the hospital police chowky. It was pointed out that accused had to make an application to produce a copy of the station diary which was ultimately produced and exhibited through the evidence of (CW 1) i.e. Head constable Abdul Shaikh. It was contended that the evidence of (CW 1) as read with the contents of Exh.66, indicated a different story in which bullet wound was said to have been caused on the head of the deceased alongwith wounds caused by satturs. On behalf of accused nos.2 & 3 by way of a reply to the contentions made by the learned Addl.Public Prosecutor in the State appeal it was contended that the reasoning given for acquitting accused nos.2 & 3 were cogent and could not be said to be perverse. By relying on several Judgments including the Judgment of the Apex Court in the case of Hari Ram V. State of Rajasthan reported in AIR Hari Ram V. State of Rajasthan reported in AIR Hari Ram V. State of Rajasthan reported in AIR : 16 : 2000 SUPREME COURT 1647 and Dwarka Das V.State of 2000 SUPREME COURT 1647 and Dwarka Das V.State of 2000 SUPREME COURT 1647 and Dwarka Das V.State of haryana reported in AIR 2003 SUPREME COURT 185 haryana reported in AIR 2003 SUPREME COURT 185 haryana reported in AIR 2003 SUPREME COURT 185, it was contended that in an Appeal against acquittal though the power of authority to apraise the evidence in an Appeal was comprehensive and wide, yet if 2 views were reasonably possible on the state of evidence, one view supporting the acquittal and the other indicating conviction then in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it felt that if it had sat as a trial Court, it would have taken the other view. That while reappreciating the evidence the rule of prudence required that the High Court should give proper weight and consideration to the views of the trial Judge and that it was only when the Judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of evidence then it would be just and proper for the Court to reverse the said Judgment in an Appeal against acquittal. 5. On behalf of the prosecution, the learned Addl.Public Prosecutor supported the reasoning and the finding of the trial Court in so far as the same pertained to handing over a conviction to accused no.1. The learned Addl.Public Prosecutor however, vehemently assailed the reasoning and finding of the trial Court pertaining to the acquittal of accused : 17 : nos.2 & 3. She pointed out that the only reason given for acquitting accused no.2 was that he had not been named in the station diary entry (Exh.66) which had been produced and exhibited through the evidence of (CW 1) Abdul Shaikh. The learned Addl.Public Prosecutor argued that apart from this single factor there was absolutely nothing to distinguish the case of accused no.2 from the case of accused no.1 who had been convicted. It was pointed out that the contents of the station diary entry (Exh.66) were not a substantive piece of evidence. These contents could only have been used to contradict the evidence of the person who had given the information. It was contended that this station diary entry according to CW 1 Police head constable Abdul Shaikh, had been made on information given by PW 2 Dipak. That the defence had not chosen to re-call PW 2 and get his omissions or contradictions on record. It was further contended that in any case, Exh.66 did not give an exhaustive list of the assailants as it referred to accused nos.1 & 3 alongwith others as being persons who had inflicted the injuries. It was lastly pointed out that it had been lost sight of that (PW 2) was himself not an eye witness and had been told about the incident by another person by name Sawant who had not been examined. That even if the different version as contained in Exh.66 had been properly : 18 : proved as a contradiction, even then it would have very little weight as having been given by a person who was not an eye witness and whose version was in any case hearsay. It was pointed out that in so far as PW 1 was concerned, he had reached the police station within 15 minutes of the incident and the recording of his FIR had been completed within half an hour. That in this FIR there was a categorical reference to all the 3 accused, the nature of the weapon used, the nature of the overt act and even the discription of the anatomical part where the injuries were inflicted. It was contended that the trial Court had given undue importance to an omission in the statement of