AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.963 OF 1986 State of Maharashtra ) ... Appellant (Orig. Complainant) Versus 1. Suresh Ambaji Sawant, ) Pyaribai Rajaramsingh Chawl, ) Bhatwadi, Near Market, ) Ghatkopar (West), Mumbai - ) 400 084. ) 2. Faiyazkhan @ Babu s/o. ) Karimkhan, ) Francis Wadi, Francis Chawl ) No.3,Ghumpha Road, Jogeshwari) Mumbai. ) 3. Mohamed Hussein Sk.Ramzanali,) Prem Nagar, Sk.Ramzanali ) Chawl, Near Fish Market, ) Jogeshwari, Mumbai. ) 4. Ashok Baburao Basankar, ) Laxmi Nagar, Laxman Bhaya ) Chawl, Parkhan Road No.2, ) Behind J.K. Chemicals, Thane.) 5. Abdul Gafoor Bandoo Karimsha ) Patel, ) Khawajbhai Chawl, Prem Nagar,) Near Old Masjid, Jogeshwari ) (E), Mumbai. ) 6. Rawloo Vithal Mayekar, ) Sk.Chawl No.8, Shankarwadi, ) Jogeshwari (E), Mumbai. ) 7. Mansing Mahadeo Bhosale, ) 2/14, Shabbir Ahmed Chawl, ) P.P. Dias Compound, ) Jogeshwari (E), Mumbai. ) 8. Vishwanath Baburao Bhojne, ) Vishnu Park Chawl, Jiyer ) Mala Road, Patil Wadi, ) Andheri (E), Mumbai. ) : 2 : 9. Khashiram Vithoba More, ) Zapu Cluly Pillu Chawl, ) Santa Cruz (E), Mumbai. ) ... Respondents (Orig. Accused) Mr. S.S. Tatkare, A.P.P. for the appellant-State. Mr. P.P. Hudlikar for the respondents-accused. CORAM: CORAM: CORAM: SMT. RANJANA DESAI & SMT. RANJANA DESAI & SMT. RANJANA DESAI & D.B. D.B. D.B. BHOSALE, JJ. BHOSALE, JJ. BHOSALE, JJ. DATED: DATED: DATED: 9TH JUNE, 2005. 9TH JUNE, 2005. 9TH JUNE, 2005. ORAL JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. The respondents (for convenience, "original accused 1 to 9 respectively") were charged for offences punishable under section 120-B read with section 302 of the Indian Penal Code (for short, "the IPC") on the accusation of having agreed to do or caused to be done an illegal act i.e. to commit murder of one P.G. Bhaskaran. The accused were further charged that in pursuance of the said criminal conspiracy and in furtherance of common intention of accused 1 to 5, accused 1 to 3 committed the murder of the said Bhaskaran by intentionally causing his death and accused 1 to 5 thereby committed offence punishable under section 302 read with section 34 of the I.P.C. The accused were tried for the said offences in the Court of Sessions for Greater Bombay in Sessions Case No.293 of 1983. By judgment and order dated 11th & 12/8/1986, the learned Sessions Judge acquitted the accused of the charges levelled against them. Being aggrieved by the said judgment and order of acquittal, the State of Maharashtra has preferred this appeal. : 3 : 2. The prosecution story may be briefly stated. Carona Sahu Company is situated at Gunfa Road, Jogeshwari (for short, "C.S.C."). PW-19 Ravindranath was working as the Factory Manager of C.S.C. during the period 1972 till 1/5/1985. Since 1979, C.S.C. Employees Union was the recognised union. In or about 1981 onwards, Dr. Datta Samant’s Union known as Maharashtra Girni Kamgar Union tried to win over the workers of C.S.C. The said union was seeking recognition. The disgruntled workers, under the influence of accused 7, indulged in violent activities against loyal workers of the recognised employees union. They adopted go-slow tactics which affected the production of the company. There was a spate of violent activities. The loyal workers were assaulted. The company was forced to declare lockout until November, 1981. 3. According to the prosecution, the accused were responsible for creating violence in C.S.C. PW-26 Shivram Narayan Karkera, who was one of the office bearers of the Employees Union was also attacked by the accused. With the intervention of Labour Minister and others, the lockout which continued upto November, 1981 was lifted. The loyal workers, who had resumed the work, were under threats and, therefore, they had to live in the factory premises. Several criminal proceedings had to be initiated against various workers of Dr. Datta Samant’s Union which included accused 3, 7 and 8. : 4 : 4. Deceased Bhaskaran was in charge of production. He was entrusted with the job of maintaining discipline amongst the workers of C.S.C. In June, 1982, he was assaulted by workers of Dr. Datta Samant’s Union. Thereafter, one policeman and one watchman used to escort him from his residence which was situated on the 3rd floor of Dr. Rane’s building at Natvar Nagar Road No.1 at Jogeshwari to C.S.C. Either he was taken by the company’s car or a taxi was sent to fetch him. His duty hours were from 7.00 a.m. to 4.00 p.m. and he was collected from his residence at about 6.30 a.m. 5. There was a settlement between the management and the employees regarding wages. On behalf of the management, the deceased took part in the negotiations. Final settlement was worked out in the middle of January, 1983. The deceased was liasoning between the workers and the management. The settlement was not liked by the workers supported by Dr. Datta Samant’s Union. They were, therefore, against the deceased. According to the prosecution, on account of the settlement, the very existence of Dr. Datta Samant’s Union in the C.S.C. was affected and, therefore, the disgruntled workers of C.S.C. wanted to get rid of the deceased. 6. On 23/1/1983 at about 6.30 a.m., as per the practice, one constable PW-14 Vilas Deshmukh along with watchman PW-15 Kailasnath Pathak left the C.S.C. in a taxi driven : 5 : by PW-12 Abdul Sattar to bring the deceased from his residence situated at Dr. Rane’s building, Natvar Nagar Road No.1. At about 6.30 a.m., PW-33 Mrs. Sharda Bhaskaran, the wife of the deceased saw a taxi coming towards Dr. Rane’s building and she informed the deceased about it. The deceased then took his shoulder bag containing tiffin box and his diary and went downstairs to board the taxi even before it had arrived at the gate of the building. As the deceased came downstairs, in the passage leading to the gate PW-33 Mrs. Sharda Bhaskaran saw the deceased being assaulted by accused 1, 2 and 3 with knives from the front side. She came inside the house and informed her son PW-31 Shaine about the assault and they both rushed downstairs. They saw that PW-15 Kailasnath Pathak was holding the deceased, who was in an injured condition. PW-14 Vilas Deshmukh was chasing three persons on Natvar Nagar Road No.1. He immediately returned as he could not catch them. Thereafter, PW-14 Vilas Deshmukh, PW-15 Kailasnath Pathak, PW-33 Mrs. Sharda Bhaskaran and PW-31 Shaine put the deceased in the taxi. The said taxi was taken to C.S.C. On the way, it was halted for a while to pick up the shoulder bag (article 6) containing two tiffin boxes (article 7) and a diary (article 8), which belonged to the deceased. When they reached the factory, at the gate, both PW-14 Kailasnath Pathak and PW-15 Vilas Deshmukh got down and PW-16 one Ramrao an official of C.S.C. boarded the taxi. The deceased was unable to speak. He only uttered the words "hospital, hospital". : 6 : 7. At the Cooper Hospital, the deceased was examined by PW-34 Dr. Suresh Mehta. The deceased was immediately admitted in the Intensive Care Unit where he was treated by PW-35 Dr. Ajay Sarin. At about 7.30 a.m., the deceased succumbed to the injuries. At Cooper Hospital, PW-18 Rangrao Kamble questioned PW-33 Mrs. Sharda Bhaskaran about the injuries suffered by the deceased and he made an entry (Ex-35) in the E.P.R. Register. Constable PW-14 Vilas Deshmukh lodged a complaint, which is at Ex-48 at the Jogeshwari Police Station. The investigation was set into motion on the basis of complaint (Ex-48). After completion of the investigation, the accused came to be charged as aforesaid. 8. In support of its case, the prosecution examined as many as 46 witnesses. The star witness of the prosecution is PW-33 Mrs. Sharda Bhaskaran, who is the sole eye-witness. The prosecution story also rests on the evidence of PW-14 Vilas Deshmukh, PW-15 Kailasnath Pathak, PW-12 Abdul Sattar and PW-31 Shaine. Several witnesses were examined to establish visibility and availability of lights at the scene of the offence. The medical evidence consists of the testimonies of three doctors viz. PW-34 Dr. Suresh Mehta, PW-35 Dr. Ajay Sareen and PW-42 Dr. Krishnaji Gore, who had done the post-mortem on the corpse of the deceased. To establish the conspiracy, the prosecution examined PW-9 Natvarlal : 7 : Patel, PW-10 Pandurang Shedge, PW-19 Ravindranath, PW-26 Shivram Karkera, PW-36 Abbas Shaikh Aziz Hussein Shaikh, PW-37 Tukaram Mayekar, PW-38 Mrs. Satyavati Mayekar, PW-39 Mrs. Savita Dhuri and the handwriting expert PW-30 Maheshwar Wagh, who has proved the diary entry (Ex-93). According to PW-30 Maheshwar Wagh, the handwriting in the said diary is that of accused 4. 9. The defence of the accused was one of denial. After considering the evidence on record, the learned Sessions Judge was of the view that the prosecution has not established its case beyond reasonable doubt and, hence, he acquitted the accused. Hence, this appeal. 10. We have heard, at considerable length, Mr. Tatkare, the learned A.P.P. appearing for the State and Mr. Hudlikar, the learned counsel appearing for the accused. The learned A.P.P. contended that the impugned judgment and order deserves to be overturned inasmuch as it is perverse. He submitted that the learned Sessions Judge has wrongly ignored the cogent and credible evidence led by the prosecution which conclusively proves that the accused had conspired to kill the deceased. He submitted that several documents were produced by the prosecution to indicate that criminal proceedings were initiated against the accused because some of them had assaulted the loyal workers of C.S.C. and created unrest. He submitted that the learned Sessions Judge failed to take note of the fact that the accused were responsible for : 8 : slowing down the production of the company, which compelled the company to declare a lockout. It has also come on record that earlier the deceased was assaulted by the disgruntled workers. The other workers of C.S.C. were also assaulted. It has also been established that the settlement arrived at between the workers and the management in which the deceased had played a major role was not liked by the accused, who supported Dr. Datta Samant’s Union and, therefore, they wanted to get rid of the deceased. The learned A.P.P. relied on the judgment of the Supreme Court in R.K. Dalmia and others v. The Delhi Administration, AIR 1962 SC 1821 and contended that it is difficult to get direct evidence of conspiracy. Conspiracy is always hatched in secrecy and, therefore, the learned Sessions Judge fell into a grave error when he observed that the prosecution has failed to prove the conspiracy. According to the learned A.P.P., there was enough material on record from which conspiracy can be inferred. 11. The learned A.P.P. further urged that the learned Sessions Judge ought to have relied upon the evidence of PW-33 Mrs. Sharda Bhaskaran, the wife of the deceased. He submitted that PW-33 Mrs. Sharda Bhaskaran is the most natural witness. Being the wife, she has every reason to be present at the time of the incident. She has categorically stated that she had seen accused 1 to 3 assaulting the deceased. She has identified accused 1, 2 and 3 in the identification parade. There was no reason : 9 : to disbelieve this witness. It was also wrong to reject the identification parade evidence. The learned A.P.P. urged that the learned Sessions Judge has given undue importance to minor discrepancies in the evidence of PW-33 Mrs. Sharda Bhaskaran. He submitted that PW-33 Mrs. Sharda Bhaskaran was under trauma and it is possible that she has not immediately disclosed that her husband was assaulted by three persons. In the circumstances of the case, that fact cannot be taken against her. The learned A.P.P. further urged that the evidence of PW-14 Vilas Deshmukh and PW-15 Kailasnath Pathak and PW-31 Shaine provide the necessary corroboration to the evidence of PW-33 Mrs. Sharda Bhaskaran. On the basis of this evidence, the learned Sessions Judge ought to have held that the prosecution has proved its case beyond reasonable doubt. He, therefore, submitted that the impugned judgment and order may be set aside and the accused may be convicted in accordance with law. 12. As against this, Mr. Hudlikar, the learned counsel appearing for the accused contended that it is not necessary to interfere with the impugned judgment and order. He submitted that this court should not disturb the order of acquittal unless it comes to a conclusion that it is perverse and it suffers from patent illegalities. He submitted that the prosecution has not been able to prove that there was any preplanning or meeting of minds between the accused. There is : 10 : absolutely no evidence to indicate that the accused had conspired to do away with the deceased. Conspiracy is, therefore, not proved at all. He submitted that there is no cogent evidence even as regards the assault on the deceased by the accused. According to Mr. Hudlikar, PW-33 Mrs. Sharda Bhaskaran’s evidence has rightly been rejected by the trial court as it is totally discrepant. Besides, there is no corroboration to the prosecution story in the form of recovery of weapons at the instance of the accused or clothes of the deceased being stained with blood of the deceased. In the circumstances, Mr. Hudlikar urged that this court should not disturb the impugned judgment and order. 13. Before we deal with the rival submissions, we must remind ourselves of the fact that we are dealing with an appeal against an order of acquittal and unless we come to a conclusion that the impugned order is perverse, it is not possible for us to interfere with it. It is well settled that if the view taken by the trial court is a reasonably possible view, even if some other view is possible, this court cannot interfere with the trial court’s view. In this connection, we may usefully refer to the judgment of this court in The State of Maharashtra v. Haribhau Krishnaji Deshmukh & Ors., in Criminal Appeal No.511 of 1987 delivered on 13/06/2003, to which one of us (D.B. Bhosale, J.) is a party, where after taking a resume of relevant judgments, this court has discussed the scope and extent of powers of this court : 11 : under section 379 of the Criminal Procedure Code and has observed as under: "In our opinion, the consistent and well settled law on the point is that the High Court can interfere with the order of acquittal only when : 1) The appreciation of evidence by the trial court is perverse or the conclusion drawn by it cannot be drawn on any view of the evidence. 2) Where the application of law is improperly done. 3) Where there is substantial omission to consider the evidence existing on record. 4) The view taken by the acquitting court is impermissible on the evidence on record. 5) If the order of acquittal is allowed to stand, it will result the miscarriage of justice." 14. Bearing the above principles in mind, we shall now : 12 : deal with the rival submissions. So far as the prosecution case that there was a conspiracy to kill the deceased is concerned, we are of the opinion that the prosecution has failed to prove by leading cogent evidence that there was any conspiracy. Undoubtedly, the prosecution has examined witnesses, who have deposed that there was rivalry between the two unions. It has come on record that Dr. Datta Samant’s Union was trying to get supremacy in the C.S.C. and, with that object in mind, the workers loyal to that union had created unrest in the C.S.C. Some of the accused had indulged in violent activities. We may briefly refer to that evidence which in our opinion falls short of the requirement. 15. PW-10 Police Naik Pandurang Shedge, who was attached to Jogeshwari police station and was on bandobast duty at the C.S.C. has, inter alia, stated that accused 7 and 8 used to attend the meetings of Dr. Datta Samant’s Union and accused 6 used to take active part in such meetings. He had deposed that he attended the meeting held on 22/1/1983 which was addressed by accused 7 - Mansingh Bhosale. He has also deposed about another meeting which was held on 4/1/1983. PW-9 Natvarlal Patel, a worker of C.S.C. has deposed about the existence of the unions in C.S.C. and the strife between the two. He has stated that accused 5, 6, 7 and 8 were the active workers of Dr. Datta Samant’s union and on 22/1/1983 he had seen accused 6, 7 and 8 near the Dena Bank. PW-19 Ravindranath, who was the Factory Manager of C.S.C. has given the entire : 13 : history of the rivalry between the two unions. He has stated that on account of the reign of terror created by Dr. Datta Samant’s Union, the workers loyal to the C.S.C. had to live on the premises of the C.S.C. The workers loyal to Dr. Datta Samant’s Union had forced the company to declare lockout because, on account of disruptive activities, the production had fallen down. In June, 1982, the deceased was assaulted by disgruntled workers. He has also stated that the negotiations were in progress between the management and the Employees Union and the deceased represented the management in the negotiations. This was not liked by the accused. On 22/1/1983, he had received a telephone message that accused 8 had put a board in the premises of C.S.C. stating that if Employees Union held a meeting of workers, the workers should not attend. On the same day, accused 7 held a meeting on the road in protest. This witness has produced documents which are at Ex-58 to Ex-80, which contain various charge sheets and orders of suspension and removal which speak about the assaults and acts of intimidation by various accused persons. He has also stated that the deceased had played a prominent role in bringing about the settlement of wage revisions. PW-26 Shivram Karkera who was working as Vice President of C.S.C. Union has also deposed about the union rivalry and the role of accused 7 in creating unrest. He has also deposed about the assault on the loyal workers by the activists of Dr. Datta Samant’s Union and the lockout. According to him, his office was also attacked. : 14 : He has also stated that the deceased was the chief spokesman of the management. His evidence is rightly described as vague by the trial court. In the cross-examination, he has admitted that he only knew one accused and he did not know who were the accused who had attacked his office and two persons who were brought to his office by the watchman as persons who were responsible for the attack are not amongst the present accused. His evidence, therefore, does not help the prosecution. PW-37 Tukaram Mayekar, PW-38 Mrs. Satyavati Mayekar and PW-39 Savita Dhuri have however turned hostile and, therefore their evidence would have to be left out of consideration. A mention must be made of a diary (article 24) and the handwriting encircled (Ex-93) which is proved to be of accused 4. The encircled portion shows that on 22/1/1983 accused 4 was in the room of accused 6 Mayekar upto 10.00 p.m. and the second entry is that accused 1 Suresh Sawant, accused 2 Faiyaz, accused 3 Hussein, accused 4 Ashok and accused 5 Bandu Patel were to meet on 23/1/1983 for Sunday’s case. There is, however, no evidence to establish that in fact a meeting took place on 23/1/1983. Therefore, mere diary entries do not prove conspiracy. 16. Several documents which have been produced by the prosecution do indicate that action was taken against some of the accused as they were indulging in violent activities. This evidence, in our opinion, does establish the rivalry between the two unions and the : 15 : violent activities of some of the accused. However, there is no evidence on record to establish that all the accused were active members of Dr. Datta Samant’s union. There is also no cogent and credible material on record to suggest that prior to the incident in question, the accused had conspired to do away with the deceased. It is true that it is not always possible to get direct evidence of conspiracy as it is hatched in secrecy but, it was necessary for the prosecution to adduce some cogent evidence to establish that all the accused had planned to do away with the deceased on the date of the incident. There is absolutely no such evidence on record and, therefore, it is highly risky to conclude that all the accused had conspired to kill the deceased. On this issue, we concur with the trial court. We hold that the prosecution has failed to establish the conspiracy. 17. Before we go to the evidence of the eye-witness PW-33 Mrs. Sharda Bhaskaran, it is necessary to have a look at the evidence of PW-42 Dr. Krishnaji Gore, who had done the post-mortem on the corpse of the deceased. Dr. Gore was attached to P.H.C. Kharbav, Tal. Bhivandi as a Medical Officer at the relevant time. He conducted the post-mortem on the corpse of the deceased on 23/1/1983. On examination, he found the following external injuries. 1) Linear abrasion 1.5 cm. in the left ear outer and middle region. : 16 : 2) Oblique incised wound 3.5" cm. x 1 cm. deep on the left elbow back. 3) Oblique incised wound 7 cm. x 4 cm. 2.5 cm. x 7 cm. deep on the right side chest outer and of wound lies 3 cm. below nipple. Inner end lies 5 cm. away from mid of sternum. 4) Incised transverse wound 4 cm. x 1 cm. x 2 cm. deep on the right chest back 8 cm. below lower end of scapula. 5) Incised Transverse wound 4 cm. x 1 cm. x 2 cm. deep 6 cm. below the injury No.4 on the back side. 6) Oblique incised wound 2 cm. x .5 cm. x muscle deep on the right gluteal region. On internal examination, he found the following injuries. 1) Fracture of the 6th rib. 2) Incised wound 7 cm. x 1 cm. in 6th intercostal space. : 17 : 3) Incised wound 2 cm. x .5 cm. through and through of the right lung lower lobe. Injuries to the right lung and injury to the inter costal muscles correspond to injury Abdomen: Abdominal cavity contains blood 1 Littre. 1) Incised wound 3 cm. x .5 cm. x 5 cm. deep on the right lobe of liver. 2) Incised wound 3 cm. x .5 cm. x 5 cm. deep on the right lobe of liver. 3) Injury to diaphgram two places. 4) Injury to liver corresponds to Injury No.3 in column No.17." 18. According to him, the cause of death was shock and haemorrhage due to penetrating injury on the chest causing injury to right lung and liver. Dr. Gore has stated that the injury No.3 was on the front side. Injury Nos.2, 4, 5 and 6 were on the back of the deceased. 19. It is necessary now to see the evidence of PW-33 : 18 : Mrs. Sharda Bhaskaran, the sole eye-witness. According to Mrs. Sharda Bhaskaran on 23/1/1983 she saw from the balcony the taxi coming towards Dr. Rane’s building and immediately she handed over the shoulder bag to her husband and her husband came out of the house and went downstairs even before the taxi had arrived in front of the gate of Dr. Rane’s building. According to her, when she went to the window in the passage, the taxi had not arrived and her husband told her that he would wait at the entrance of the building and he went downstairs. According to her, she was waiting near the window near the passage and within a minute