1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.265 OF 1992 The State of Maharashtra ..Appellant Vs. 1. Harishchandra Gotiram Patil, 2. Ratan Rajaram Patil, 3. Gotiram Janu Patil, 4. Ramnath Janu Patil, 5. Ramesh Krishna Pawar, 6. Ramchandra Ragho Patil, 7. Anant Janu Patil, 8. Bharat Dashrath Patil, 9. Ankush Sudam Patil, 10. Sawalaram Saniwar Patil, 11. Kailas Dashrath Patil, 12. Pandit Govardhan Pawar, 13. Goverdhan Krishna Pawar, 14. Rohidas Dashrath Patil, 15. Baban Undrya Patil, 16. Chandar Parshuram Patil, 17. Revan Ragho Patil, 18. Gajanan Krishna Pawar, 19. Rohidas Joma Patil, 20.Madhukar Chandar Patil ..Respondents ......... Ms.U.V.Kejriwal, APP for appellant State. Mr.C.R.Sonawane, for respondent nos.1 to 18 and 20. ......... 2 CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 15th SEPTEMBER, 2010. JUDGMENT (PER R.G.KETKAR, J.) : This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 23 rd January, 1992 passed by learned 3 rd Addl. Sessions Judge, Thane in Sessions Case No.332 of 1990. By that judgment, learned Sessions Judge acquitted all the respondents original accused of all the charges. 2] Respondents no.1 to 20 (hereinafter referred as accused nos.1 to 20 respectively) were prosecuted for the offence punishable under Sections 302 read with 34 and 149, 147 and 148 Indian Penal Code, 1860 (for short IPC). The facts and circumstances giving rise to the filing of appeal, briefly stated, are as under. 3] It is the case of prosecution that deceased Baburao and his two brothers PW 1 Tulshiram and accused no.2 Ratan along with others from village Uttarshiv were prosecuted in connection with murder of Ratan Budha Patil and Namdeo. As all these accused in that case were in jail, PW 7 Laxman Bedkya Choudhary of village Katai, who is father in law of deceased Baburao, met with expenses of the defence of all accused persons. Since the expenditure was huge, it was agreed that all the accused persons therein would shoulder the expenses and pay their contribution to PW 7 Laxman. It is the case of prosecution that accused no. 3 2 Ratan, accused no.4 Ramnath and accused no.18 Gajanan did not pay the contribution. Because of this nonpayment of their contribution, the relations between deceased Baburao and accused no.2 Ratan, accused no. 4 Ramnath and accused no.18 Gajanan were strained. It is the further case of prosecution that in the year 1988 at the time of Hanuman Jayanti, a quarrel took place between deceased Baburao and his brother accused no. 2 Ratan on account of giving their share to the Palkhi of Lord Hanuman. They opposed each other. In the month of May, 1989, marriage of accused no.1 was performed. At the time of function of applying Haldi during the night time electric supply failed and house of accused no.1 Harishchandra was completely in dark. However, there was light at the house of deceased Baburao. Accused no.1 and his relatives carried impression that deceased Baburap played some mischief because of which, the electricity supply of their house felled. Because of this impression, a quarrel took place and the persons from both sides were injured in this scuffle. Counter cases were also filed. It is the case of prosecution that because of these three instances quoted hereinabove, the relations between Baburao and accused were strained. 4] It is the case of prosecution that on 18 th August, 1989 there was a ceremony of house warming (Vastushanti) of newly constructed house of PW 7 at village Katai. On that day, in the morning, the deceased Baburao, his wife PW 2 Yamunabai, son Ramesh and brother PW 1 Tulshiram went to Katai for attending the function. At about 3 pm, all these persons left Katai. They travelled from Katai to village Khidkali by bus and from there, they started walking by a footway towards village Uttarshiv. After they crossed 4 Khidkali, deceased Baburao and PW 1 Tulshiram walked ahead of PW 2 Yamunabai and Ramesh. The distance between two groups had increased and at some distance from cremation ground of village Khidkali, PW 1 Tulshiram sat down to ease himself and Baburao proceeded ahead. 5] At that time, accused nos.1 to 4 and 10 to 15 obstructed Baburao. All these accused were armed with swords, sticks etc. When Tulshiram was easing himself, he heard his brother was calling to rush. Due to this, attention of PW 1 Tulshiram was attracted towards Baburao and the accused persons. Accused started assaulting Baburao with swords, sticks etc. Seeing this, Tulshiram also rushed towards that direction. Accused no.4 Ramnath noticed him and asked his companions to assault Tulshiram as well. Due to this instigation, accused no.4 Ramnath, accused no.2 Ratan, accused no.3 Gotiram and accused no.15 Baban rushed towards PW 1 Tulshiram. PW 1 Tulshiram got frightened and he ran away and, at some distance, hid behind trees. From there, he saw the entire incident. While four of the accused were chasing PW 1 Tulshiram, deceased Baburao escaped and ran away. Accused nos.1 to 4 and 10 to 15 chased Baburao and, at some distance, all of them over powered Baburao. Accused no.2 Ratan gave blow with sword on the leg of Baburao and he fell down. Accused nos.1, 3, 4 and 10 to 15 also came there. At that time, accused nos.5 to 9 and 16 to 20, who were hiding themselves behind some trees, also appeared and went towards the spot where Baburao had fell down. Thereafter, all the 20 accused persons assaulted Baburao with swords, axes, sticks and stones. After some time, they left the spot. 5 6] Deceased Baburao was lying dead with serious injuries on the body. Skull of his head was completely broken and brain matter had come out. Four or five cow-boys who were grazing cattle came there and saw the incident. They also went away. PW 2 Yamunabai also saw the incident after she crossed cremation ground. PW 1 Tulshiram and PW 2 Yamunabai sat down by the side of the dead body of Baburao. After some time, PW 6 Goutam Ziprya Patil, Police Patil of village Khidkali came there. He saw the dead body and immediately went to Dyghar Police Out Post within the jurisdiction of Turbhe Police Station to lodge report. But, he was directed to go to Turbhe Police Station. Accordingly he went to Turbhe Police Station and lodged oral report. The said report was reduced to writing and Crime No.308 of 1989 was registered under Section 302 IPC at about 6.30 pm by P.S.I. Salunkhe. PW 9 PSI Kadam recorded the inquest panchnama and referred the body for post mortem. He recorded statements of Tulshiram, Yamunabai and Rames and some other persons. 7] On the next day in the morning, panchnama was prepared. Accused no.1 Harishchandra was arrested on 19 th August, 1989. Accused nos.2 to 15 were arrested on 25 th August, 1989 and accused nos.16 to 18 were arrested shortly thereafter. Accused nos.19 and 20 were said to be absconding till the first Charge Sheet was filed against them. Subsequently, accused nos.19 and 21 were arrested and two separate Charge Sheets were filed against them. During the course of investigation, on the basis of information given by PW 2 Yamunabai, certain weapons were seized from a place from accused nos.2 and 13 on 30 th August, 1989. On the basis of information given by accused no.4, certain weapons were seized from a 6 place near Uttarshiv on 4 th September, 1989. The weapons were produced by accused nos.4 and 10. After completing the investigation, first Charge Sheet was filed on 18 th November, 1989 in the court of Chief Judicial Magistrate, Thane which was registered as Criminal Case No.800 of 1989. Thereafter, the Chief Judicial Magistrate committed the case to the Court of Sessions for trial. 8] Charge exhibit 1 was framed against all the accused persons for the offences punishable under Sections 147, 148, 302 read 149 and in the alternate under Section 302 read with Section 34 Indian Penal Code. Accused pleaded not guilty and claimed that they were falsely implicated in the case. It was the defence of accused that the dead body of Baburao was found at a lonely place and nobody had witnessed the incident. They claimed that because of some old dispute between the parties, PW 1 Tulshiram connected the story and implicated the accused in the case. The defence of alibi was raised by accused no.18 Gajanan and accused no.20 Madhukar. The defence of accused no.18 Gajanan was that at the relevant time he was on duty at the Railway Yard at Kalyan where he was serving as Batch Boy. The defence of accused no.20 Madhukar was that he was serving in a hotel and, at the relevant time, he was on duty in the said hotel. 9] In support of the case, prosecution had examined nine witnesses to bring home the guilt of the accused. In support of the defence of alibi accused nos.18 and 20 examined two defence witnesses. After considering the evidence on record, as pointed out earlier, the learned Sessions Judge, acquitted the accused. It is against this judgment and order, the State of 7 Maharashtra has preferred present Criminal Appeal. 10] We have heard Ms.U.V.Kejriwal, learned APP for appellant State and Mr.C.R.Sonawane, learned counsel for respondent nos.1 to 18 and 20, at a great length. With the assistance of learned counsel for the parties, we have gone through the evidence on record. 11] It is the case of prosecution that the incident was witnessed by PW 1 Tulshiram as also PW 2 Yamunabai. PW 1 Tulshiram deposed that PW 7 Laxman Bedkya Choushary, father-in-law of deceased Baburao had paid all the expenses for defending deceased Baburao and other accused in another case during the year 1981 to 1982. They were prosecuted for murder of one Ratan and one Namdeo. They were acquitted after the trial and it was agreed that all the accused persons in that case will bear the expenses of the case. The accused nos.2, 3, 4, 13 and 18 in the present case were also accused in that case. However, accused nos.2, 4 and 18 did not pay their contribution because of which PW 1 Tulshiram and deceased Baburao stopped talking with accused no.2 Ratan, accused no.4 Ramnath and accused no.18 Gajanan. PW 1 Tulshiram also pointed out about the quarrel took place at the time of Hanuman Jayanti as also cross complaints that were filed at the time of marriage of accused no.1 Harishchandra in the year 1989. 12] In so far as the incident of 18 th August, 1989 is concerned, he deposed that at about 10:00 am, he along with deceased Baburao, PW 2 Yamunabai and Ramesh went to the house of PW 7 Laxman at village Katai 8 which is at a distance of about 7 or 8 miles from village Uttarshi, to attend house warming ceremony. After the function was over, at about 3:00 pm all these persons left Katai for returning to Uttarshi. From village Katai to Khidkali they came by bus. There was no bus service from Khidkali to Uttarshi. Therefore, they left Khidkali for proceeding towards Uttarshi. It was about 4:00 pm. PW 1 Tulshiram and deceased Baburao were walking ahead, while PW 2 Yamunabai and Ramesh were following them. At a place, PW 1 Tulshiram stopped to ease himself, while deceased Baburao proceeded further. He, thereafter, described minutely the incident of assault on deceased Baburao by accused persons. 13] PW 1 Tulshiram further deposed that after committing murder of Baburao, accused persons ran away towards Uttarshi village. He told the incident to PW 2 Yamunabai who also has seen the incident. Thereafter, PW 1 Tulshiram and PW 2 Yamunabai told the people of village about the incident and shortly returned to the spot of incident along with peoples from Uttarshi. PW 5 Gopal Sakhrya Patil and others came towards the spot and PW 1 Tulshiram narrated the incident to them. As this witness saw the incident from some distance, he was not in a position to identify the weapons used in the offence. 14] In the cross-examination, PW 1 Tulshiram deposed that Baburao had demanded the amount of contribution from all the accused firstly during 1983-1984 in respect of another case. He further deposed that no dispute took place after 1984 till the incident about the non-payment of contribution by accused. He denied that only Baburao, Yamunabai went along with to 9 Katai for attending the function of house warming. He was confronted with portion marked “A” from his statement which was read over to him by the police. He deposed that he did not remember if he made such statement before the police. He also did not remember that if he deposed before the police that Ramesh was present along with him at the incident. He further deposed that the accused assaulted Baburao with swords and axes. They assaulted Baburao on his head. When he saw that Baburao escaped himself and was running away, he did not notice any bleeding from his head. After assaulting Baburao, assailants ran away towards Uttarshiv. At that time he came out from the place where he was hiding. He, however, did not go near Baburao nor he touched his body to find out whether Baburao was alive or dead. PW 1 Tulshiram and PW 2 Yamunabai went to village Uttarshiv. The did not go to their homes. After they reached near the temple of village, they shouted and told the peoples in the village that Baburao was killed. He admitted that at that time they did not tell the names of assailants. He further admitted that he did not remember if he stated before the police that he, PW 2 Yamunabai and Ramesh ran away towards Uttarshiv village and told this incident to people. He did not remember if he had told the police that he had narrated the incident to those persons. He further deposed that it did not happen that when PW 2 Yamunabai was present along with him near the dead body, PW 6 Goutam, Police Patil had came there and after seeing the dead body, he immediately went away. He further confronted with portion “B” from his statement. He, however, deposed that he did not make such statement before the police. 15] PW 2 Yamunabai deposed that after the function of Katai was over, 10 they left Katai for proceeding to Uttarshi at about 3:00 pm. She along with her husband Baburao and PW 1 Tulshiram left village Katai together. Her children remained at Katai. She thereby excluded the presence of her son Ramesh which PW 1 Tulshiram stated during his evidence. In the cross- examination, she deposed that her husband died at the same spot where he had been lying and after the assault, accused persons ran away towards Uttarshi. After accused persons ran away, she and PW 1 Tulshiram did not go near the dead body. She admitted that it did not happen that immediately after accused had ran away, he along with PW 1 Tulshiram went near the dead body and stayed there. She was confronted with portion marked “A” from her statement before police. 16] Considering the testimony of PW 1 Tulshiram and PW 2 Yamunabai, it is evident that PW 1 Tulshiram deposed about the presence of Ramesh, son of deceased Baburao and Yamunabai. However, PW 2 Yamunabai is totally silent about the presence of Ramesh when the incident in question took place. It is also highly unnatural on the part of PW 1 Tulshiram and PW 2 Yamunabai that after the assault when the accused had ran away from the spot, these witnesses did not go near the dead body of Baburao. Though PW 1 Tulshiram claimed that after the incident they went to Uttarshi and told the people in the village including PW 5 about the incident, they did not tell the names of assailants. Considering their evidence, we are satisfied that PW 1 Tulshiram and PW 2 Yamunabai were not present at the time of alleged incident. Learned Sessions Judge considered the evidence of the witnesses and came to the conclusion in paragraph no.14 of the impugned judgment that PW 1 Tulshiram and PW 2 Yamunabai must not 11 have been present on the spot. 17] Learned APP before the learned Sessions Judge conceded that the discovery of weapons from accused nos.2 and 4 was not reliable because the discovery of some weapons was shown jointly from accused no.2 Ratan and accused no.13 Gowardhan and another discovery of weapons is shown jointly from accused no.4 Ramnath and and 12 Savalaram. Taking into consideration the evidence on record, learned Sessions Judge acquitted the accused. After hearing learned counsel for the parties, we are satisfied that the prosecution has not established the guilt of accused beyond the reasonable doubt. The evidence of eye witnesses does not appear to be trustworthy. In our view, learned Sessions Judge has rightly acquitted all the accused. It cannot be said that the judgment of learned Sessions Judge is unreasonable, perverse or unsustainable. The view taken by learned Sessions Judge is a reasonable and possible view. As held by the Apex Court in the case of Caetano Piedade Fernandes Vs. Union of Territory of Goa, Daman & Diu, AIR 1977 SC 135, it is now settled law that if the view taken by the trial court is a reasonably possible view, the Appellate Court should not disturb an acquittal merely because it thinks that another view is better or more preferable. 18] In the result, Appeal fails and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]