1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTON CRIMINAL APPEAL NO.75 OF 1991 The State of Maharashtra .. Appellant V/s 1. Pandurang Anant Desai, 45 years, R/o.Kadgaon, Taluka Gadhinglaj, Dist.Kolhapur. 2. Uday Pandurang Desai, 19 years R/o.Kadgaon, Taluka Gadhinglaj, Dist.Kolhapur. 3. Zakirhussain Dastagir Bagwan, 19 years, R/o.Mahagaon, Taluka-Gadhinglaj, Dist: Kolhapur. .. Respondents Mr.H.J.Dedhia, APP for the Appellant-State. Ms.Varsha Palav for the Respondents. CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE: 30th August, 2010. JUDGMENT: (Per R.G.Ketkar, J.) 1. This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 9th October, 1990 passed by the learned V Assistant Sessions Judge Kolhapur in Sessions Case No.101 of 1989. By that judgment, learned Sessions Judge acquitted all the accused of the charge u/s.307, 223 read with 34 Indian Penal Code, 1860 (for short 2 IPC). 2. The case of the prosecution is that one Irappa Ishwar Shresti (PW4) reported the incident to Gadhinglaj Police at 11.35 a.m on 6th January, 1989 that because of previous enmity between the injured Appasaheb (PW6) and the Accused No.1 in the year 1986, Accused No.1 was seriously injured by Appasaheb (PW6) and one Hari. PW6-Appasaheb and Hari were prosecuted for assaulting Accused No.1 which ended in acquittal. On 6th January, 1989 complainant PW4-Irappa was at his grocery shop situate at village Kadgaon. Said shop is near to the house of one Sushila Shintre. At about 8.45 a.m on 6th January, 1989 PW4- Irappa saw from his shop that Accused No.1 went inside the house of said Sushila and brought one iron-patti. The complainant PW4-Irappa suspected something might go wrong and therefore, came out of his shop. He saw that his cousin PW6-Appasaheb was near the hotel of one Sudam Chaugule. At that time, PW6-Appasaheb was caught by Accused No.2-Uday, who is son of Accused No.1, as also the driver of the tempo who is Accused No.3. Said tempo is owned by Accused No.1. There was scuffle between accused Nos.2 and 3 and PW6-Appasaheb. At that time, Accused No.1 went there and gave blow of iron patti on the head of Appasaheb. Because of that assault, Appasaheb fell down and thereafter Accused Nos.1 to 3 left the spot. Accused No.1 asked Accused Nos2 & 3 to go to Gadhinglaj while he entered in the house of Sushila. Accused 3 Nos.2 & 3 boarded in the tempo which came there and went towards Gadhinglaj. Several persons were present when the assault was made on Appasaheb. Due to sustaining head injury, there was profuse bleeding and the blood fell on the clothes of PW6 Appasaheb. Somebody from the persons gathered there administered water to Appasaheb. PW6 Appasaheb was taken to Government Dispensary, Gadhinglaj on motorcycle for treatment. On receipt of complaint, PW12- PSI Galimath, Incharge of Gadhinglaj Police Station registered the crime at Sr. No.2 of 1989 u/s.307 read with section 34 IPC. Crime was registered at 11.35 a.m. PW8-Anant Karanjkar, Naib Tahisildar and the Executive Magistrate at Gadhinglaj recorded dying declaration of PW6- Appasaheb. PW3-Dr.Rao, Medical Officer, Incharge of Government Dispensary, Gadhinglaj, examined the injured and referred him to C.PR.Hospital, Kolhapur for further treatment. On the same day, PW7- Dr.Tendulkar attached to C.P.R.Hospital, Kolhapur examined PW6- Appasaheb and gave medical treatment. The Investigating Officer prepared scene of offence panchanama at Exh.18 and seized earth mixed with blood as also earth not mixed with blood. He also seized iron patti at the instance of the Accused No.1. All these articles were sent to chemical analysis for examination and report. The Investigating Officer recorded the statement of witnesses, collected medical evidence and submitted the chargesheet to the learned Judicial Magistrate, First Class 4 on 19th April, 1989. 3. By order dated 18th July, 1989, learned JMFC committed the case to the Court of Sessions for trial according to law. Learned Sessions Judge framed the charge at Exh.2 u/s.307, 323 read with 34 IPC. Accused denied the charges and contended that they have not committed any offence and have been falsely implicated in the present case on account of long standing enmity between PW6 Appasaheb and Accused No.1 and they were also falsely implicated on account of political rivalry. 4. In support of the prosecution case, it examined four eye witnesses, besides the injured witness PW6 Appasaheb. It is the case of the prosecution that PW4 Irappa, cousin of the complainant, PW3-Shivaji Patil, PW10-Shamrao Patil and PW11-Bhimrao Patil were the eye witnesses. Prosecution examined PW2-Vilas Patil as a panch, who proved the scene of offence panchanama at Exh.18. Prosecution examined PW5-Pandurang Shinde, panch in respect of discovery of weapon made u/s.27 of the Evidence Act, who however turned hostile. Prosecution also brought on record medical evidence in the shape of oral evidence of PW3-Dr.Rao, Incharge of Government Dispensary, Gadhinglaj and PW7-Dr.Tendulkar attached to the C.P.R.Hospital Kolhapur. PW8-Naib Tahsildar, Gadhinglaj, who recorded the dying declaration of PW6 Appasaheb, was examined by the prosecution. In addition to these witnesses, prosecution examined PW1-Rudrappa Kore, 5 Revenue Circle Officer who prepared map at Exh.16, and PW12- Galimath, an Investigating Officer. After considering the material on record, learned Sessions Judge acquitted all the accused. It is against this judgment and order, State of Maharashtra has preferred this appeal. 5. We have heard Mr.Dedhia, learned APP on behalf of the Appellant-State and Ms.Varsha Palav, learned counsel appearing on behalf of the Respondents at length. Mr.Dedhia submitted that the learned Sessions Judge committed grave error in disbelieving the oral evidence of four eye witnesses as also PW6-Appasaheb who is the injured witness as also the victim at the hands of the accused. The oral evidence of these eye witnesses is corroborated by the medical evidence. T he panch witnesses have proved recovery of weapon which was used in the commission of the offence. On the other hand, Ms.Varsha Palav, learned counsel for the Respondents supported the impugned judgment. With the assistance of learned counsel for the parties, we have gone through the evidence on record. 6. The prosecution relied upon evidence of four eye witnesses viz. (i) PW4-complainant Irappa Shesti at Exh.25, (ii) PW9-Shivaji Patil at Exh. 37, (iii) PW10-Shyamrao Patil at Exh.38, (iv) PW 11- Bhimrao Patil at Exh.39. Prosecution also relied upon evidence of the injured witness PW6-Appasaheb at Exh.29. In the cross-examination of PW4-Irappa it has come on record that at the time of alleged incident he did not know 6 to whom accused No.1 was abusing. He further admitted that if one sits in his grocery shop, then the hotel owned by Sudam or its doors are not visible. He might have forgotten to mention in the complaint that the Accused No.1 went abusing. When Accused No.1 went abusing, he was sitting in his shop. He did not remember that any person from neighbouring houses saw Accused No.1 passing and returning to the house of Sushilabai. He reached the spot after accused left and till that time, he was at the door of his shop. His shop is at the distance of 60 ft.from the hotel of Sudam. He further admitted that he did not make hue and cry after the assault by Accused No.1 with the iron patti on the head of PW6-Appasaheb. Though he felt that he should go to the site, he did not go there. He also did not remember to mention the names of PW10-Shamrao Patil, Govind Patil, PW11-Bhimrao Patil, who arrived at the spot at the time of filing complaint. 7. PW9-Shivaji Patil deposed in the examination in chief that he could not tell whether the iron patti was same. In the cross-examination it has come on record that after the incident was over, he went on the spot to see the injured PW6-Appasaheb. Sudam Chaugule brought water from his hotel and gave it to Appasaheb. Chandrakant Batkatli tied the head injury of Appasaheb by means of cloth piece which he brought from his house. After the incident, Appasaheb was at the spot for about five to ten minutes. He did not see any vehicle coming there and that PW6- 7 Appasaheb was unconscious while he was taken on the motorcycle. 8. PW10-Shamrao Patil deposed that Accused No.2 was beating PW6- Appasaheb by means of chappal. He intervened and separated PW6- Appasaheb from Accused Nos.2 and 3. In the cross-examination he deposed that though he stated before the police that Sudam Chaugule brought water from his hotel, he could not give any reason as to why it is not so stated in his statement. He did not state to anybody regarding the incident as the incident took place in Bazarpeth. The persons from neighbouring houses had closed their doors when the incident was going on. Nobody came outside to see the incident. PW11-Bhimrao Patil deposed that he was sitting for about one hour and thereafter incident occurred. PW6-Appasaheb and Accused Nos.2 and 3 were quarreling, but he could not tell what were the words. He also did not know what was the cause behind the quarrel. They were abusing each other. No person from near vicinity came due to hurling of abuses as there are no houses in the near vicinity. He did not intervene and he was simply standing there. He did not make hue and cry. Even after Appasaheb fell, he did not run to help. The reason given by him was that due to apprehension that the blood will come on his cloth, he did not go there. Though he stated before police that Sudam Chaugule brought water and Chandrakant Batkatli tied piece of cloth to the injury of PW6- Appasaheb, he could not give any reason why the police did not record 8 so in his statement. Though PW10-Shamrao Patil claims that when Accused Nos.2 & 3 started beating Appasaheb by means of chappal he intervened and separated Accused Nos.2 & 3 from Appasaheb, the other eye witnesses viz.PW4-Irappa, PW9-Shivaji Patil, PW11-Bhimrao Patil did not corroborate on this aspect viz. PW10-Shamrao Patil intervening and separating PW6-Appasaheb from Accused Nos.2 & 3. 9. Now in the light of this evidence, let us consider the evidence of PW6- Appasaheb who is injured witness. Perusal of his evidence shows that it is full of material contradictions and omissions. Even in the cross- examination he admitted that he made false statement during recording of his deposition that the police of Kolhapur recorded his statement. In paragraph No.2 of examination in chief, he deposed that due to bleeding, he had become semi-conscious after he fell down. In paragraph No.4 he deposed that his statement might have been recorded by PW8-Mr.Anant Karanjkar, Executive Magistrate in the dispensary at Gadhinglaj. At that time his mental condition was not normal due to to receiving head injury. In paragraph No.7 of the cross-examination he feigned ignorance about the political group led by Nagappa Katkatli and another political group led by Nagappa Batkatli. He admitted that there was chapter case against him. He however denied that there was allegation in that chapter case that he attempted to commit murder of Accused No.1. In paragraph No.9 of the cross-examination he deposed 9 that Kolhapur police recorded his statement at C.P.R.Hospital, Kolhapur. After about eight days, PSI of Gadhinglaj came at C.P.R.Hospital and recorded his statement. His health was not good when his statement was recorded by PSI Gadhinglaj. At that time, his right half portion had already been paralyzed. He had not stated this aspect in his statement before the PSI of Gadhinglaj, as according to him, PSI did not enquire from him about that aspect. He further admitted that he had not stated before anybody till date that his right half portion was paralyzed. In paragraph No.9 of his cross-examination he was confronted with the portion marked ‘A’ that “now my health is good”. He deposed that he did not state before PSI of Gadhinglaj that portion. He however could not give any reason why that portion was recorded in his statement. He did not remember that at the time of recording his statement by PSI Gadhinglaj, he has read over the statement recorded by the Executive Magistrate. He further deposed that it did not happen that he had regained consciousness and his statement was recorded by the Executive Magistrate. He did not state the portion marked ‘B’ before PSI Gadhinglaj, that when treatment was going on at Gadhinglaj dispensary he regained consciousness and then the Executive Magistrate recorded his statement. He could not give any reason why the said portion was noted down in his statement. He stated before the Executive Magistrate that at the time of assault PW10-Shamrao Patil, Shamrao Shevale and 10 PW11-Bhimrao Patil were present. He could not assign any reason why the said portion was not taken in his statement recorded before the Executive Magistrate. 10.He also did not remember that he stated portion marked ‘A’ before the Executive Magistrate that there were persons other than assailants on that spot. He could not give any reason why portion marked ‘A’ was taken in the statement. In paragraph No.10 he admitted that he might have forgotten to mention in the statement recorded by the Executive Magistrate that Accused No.1 came from rear side and gave blow by means of iron patti. In paragraph No.12 he deposed that he did not make statement before the Kolhapur police. At the same time, he deposed that he made a false statement yesterday during recording of deposition that police of Kolhapur recorded his statement. He deposed that the statement dated 6th January, 1989 purported to be made by him and recorded by police at Kolhapur, is a false record. 11. In paragraph No.13 of the cross-examination, he deposed that it is not true to say that he made statement portion marked ‘A’ before Kolhapur police that Dr.Hutti brought me to C.P.R. Hospital, Kolhapur by ambulance of Municipal Council of Gadhinglaj. He also did not remember to have stated portion marked ‘B’ before the Executive Magistrate that he had sustained only head injury. Thus, considering the oral evidence of PW6-Appasaheb, we find that the same suffers from 11 material contradictions, as also material omissions. PW6-Appasaheb even went to the extent of admitting that he had made false statement on earlier occasion during recording of his deposition. We are therefore of the opinion that the oral evidence of eye witnesses PW4, PW9, PW10, PW11 and PW6 led by the prosecution does not inspire confidence. 12.In so far as medical evidence is concerned, PW3-Dr.Rao was examined at Exh.21. He was working as a Medical Officer at Government Dispensary, Gadhinglaj. He opined in the medical certificate that the injury sustained by PW6-Appasaheb might have been caused by sharp and cutting instrument. He admitted that none of the edges of the iron patti before the Court is either sharp or cutting. Learned Sessions Judge considered this aspect in Paragraph No.5 of the impugned judgment and observed that the injury alleged to have been sustained by PW6- Appasaheb was not caused by the iron patti. PW7 Dr.Tendulkar was examined at Exh.32. He was a Medical Officer at C.P.R.Hospital, Kolhapur. He opined that the injury on the skull was grievous. In the examination in chief, he deposed that if a blow is given made by means of iron patti which is before the Court by its any edge then such type of injury is not possible as the edges of the injury were clean cut. Thus the medical evidence also does not establish the case of the prosecution. 13. By considering the totality of circumstances, and the evidence on record, learned Sessions Judge held that the prosecution miserably failed to 12 prove the charge and accordingly by the impugned judgment and order acquitted the accused. We do not find that the findings recorded by the learned Sessions Judge are either perverse or unreasonable or unsustainable. We do not find that the learned Sessions Judge committed any error in acquitting the accused. 14. In the result appeal fails and the same is dismissed. (R.G.KETKAR, J.) (D.B.BHOSALE, J.)