1 Appeal No.251.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.251 OF 1992 State of Maharashtra .. Appellant. Vs. 1. Mahadeo Janu Pawar .. 2. Baliram Kashiram Pawar .. 3. Sitaram @ Kali Kashiram Pawar .. 4. Shankar Kashiram Pawar .. 5. Nathuram Bhiva Kapse .. 6. Dilip Mahadeo Pawar .. 7. Gajanan Mahadeo Pawar All resident of Shel-Deuekon, Tal.Mahad, Dist. Raigad .. Respondents. Ms.U.V.Kejriwal APP for the State. Mr.G.V.Limaye with K.S.Dewal and Roshan S.Tanna for the respondent. CORAM : D.B.BHOSALE & RAJESH.G.KETKAR, JJ. DATED : 14TH SEPTEMBER, 2010. ORAL JUDGMENT (Per D.B.BHOSALE, J.) This appeal is directed against the judgment and order dated 6.2.1992 passed by the Additional Sessions Judge, Raigad, Alibag in Sessions Case No.94 of 1989 by which all the respondent-accused, who were charged and tried for the offence punishable under S 2 Appeal No.251.92 sections 147, 148, 302, 307, 325 read with section 149 of the Indian Penal Code, were acquitted. 2. The prosecution case as culled out from the evidence of the complainant in brief is that on 23.3.1989 at 7.30 pm all the accused committed murder of one Gauru Rama Sakpal and also caused severe injuries to Harischandra Sambhaji Sakpal – P.W.2, Shantaram Gangaram Sakpal – P.W.3. and Harishchandra Ganpat Sakpal – P.W.6. On the date of incident at about 10 am there was a quarrel between Ranjana Dilip Pawar, the wife of accused no.6 – Dilip Pawar and the daughter-in-law of accused no.1 – Mahadeo, and one Savita Vithal Sakpal – P.W.7 on account of taking water from the bore well. Savita belongs to Budha community whereas Ranjana belongs to Maratha community. In this quarrel it is alleged that Ranjana Pawar slapped Savita. Thereafter between 11 am and 12 noon, accused no.5 – Nathuram Kapse, accused no.6 – Dilip Pawar and accused no.7 – Gajanan Pawar allegedly went to Budhawadi with an intention to assault the complainant over the incident that occurred in the morning at 10 am between Ranjana and Savita. However, they were pacified by Balu Narayan Kadam, the Police Patil of the village, and others and they were sent back to their Mohalla. Thereafter, to report the aforesaid incident of accused nos.5, 6 and 7 about their intention to assault some persons from Budhawadi, Laxman Rama Sakpal – P.W.8, Ashok Mahadeo Sakpal, Vithal Gangaram Sakpal and 3 Appeal No.251.92 Santosh Shankar Sakpal went to Mahad police station. Since these persons did not return within reasonable time, four persons, namely, Gauru Rama Sakpal, the deceased in the present case, Harishchandra Sambhaji Sakpal – P.W.2., Shantaram Gangaram Sakpal – P.W.3 and Harischandra Ganpat Sakpal - P.W.6 went towards Shel-Bhogav road to search those persons. At that time all the accused were noticed coming from opposite direction and they were armed with weapons like, swords, farashi, iron bar, gupti, stick and razor. When they met the deceased, Harishchandra Sakpal – P.W.2, Shantaram Gangaram Sakpal - P.W.3 and Harischandra Ganpat Sakpal - P.W.6 they attacked them resulting in the death of Gauru Rama Sakpal and causing injuries to others. After the incident Harishchandra Sambhaji Sakpal - P.W.2 rushed to Mahad police station and lodged complaint against all accused. The investigating officer thereafter took further steps and completed the investigation and submitted the chargesheet in the court of Judicial Magistrate First Class, Mahad. The case was thereafter committed to the Court of Sessions at Raigad, Alibag. 3. The prosecution in order to bring home the guilt of accused examined 19 witnesses. Out of this Harishchandra Sambhaji Sakpal – P.W.2, Shantaram Gangaram Sakpal - P.W.3 and Harishchandra Ganpat Sakpal – P.W.6 were examined as eye witnesses. P.W.4, P.W.5, P.W.11, P.W.12 and P.W.14 were examined by the prosecution to prove 4 Appeal No.251.92 different panchnamas. The prosecution also examined five doctors, P.W.9, P.W.10, P.W.13, P.W.16 and P.W.18 to prove the post-mortem notes so also the injuries sustained by P.W.2 and P.W.3. Then the prosecution examined three police officers and circle officer who drew panchnama of the scene of offence. In order to prove motive the prosecution examined P.W.7 and P.W.8. The Sessions Court after having considered the entire evidence on record and having noticed inconsistencies, contradictions and discrepancies in the evidence of eye witnesses acquitted all the accused by the impugned judgment. We have heard learned counsel for the parties for quite sometime and with their assistance gone through the entire evidence and more particularly the evidence of eye witnesses. 4. We would now like to consider evidence of the complainant – Harishchandra Sakpal – P.W.2. He has stated about the morning incident between Savita – P.W.7 and Ranjana, the wife of accused no. 6. Admittedly, he was not present when this incident occured. Then he has also stated about the visit of Dilip Pawar – acussed no.6, Gajanan Pawar – accused no.7 and Nathu – accused no.5 to Budhawadi at about 11 am – 12 noon. These accused, according to this witness, had gone there with an intention to assault them. After these accused were pacified, he states they left. Thereafter Laxman – P.W.8, Ashok Mahadeo Sakpal, Vithal Gangaram Sakpal, Santosh Shankar Sakpal went to Mahad police station to report the visit of 5 Appeal No.251.92 accused no.6, accused no.7 and accused no.5 to Budhawadi. Since they did not return within the expected time this witness alongwith Shantaram Gangaram Sakpal - P.W.3, Harichandra Sakpal – P.W.2 and the deceased Gauru left for searching those persons and then he narrates as to how the incident occurred. 5. In the actual incident of assault, according to P.W.2, accused no.1 – Mahadeo gave stick blow to the deceased – Gauru. Accused no.2 – Baliram gave one gupti blow each to the deceased Gauru and this witness. Accused no.3 – Sitaram assaulted P.W.3 with farashi whereas accused no.4 assaulted P.W.3 with iron bar. Accused no.5 – Nathuram allegedly assaulted P.W.6 with stick. Accused no.6 – Dilip Pawar, according to this witness, assaulted him with sword and to the deceased and accused no.7 gave random razor cuts to the deceased. In the cross examination this witness made mistake in identifying accused no.6 as accused no.2. The evidence of this witness was challenged mainly on the ground that his presence at the scene of offence was doubtful and in support of this contention our attention was invited to the FIR lodged by him. 6. We have perused the FIR Exhibit-20. In the marjin of the FIR time of incident is mentioned as 7.30 pm whereas timing of recording the FIR is mentioned as 10.30 pm. The incident occurred at 7.30 pm. He has stated the sequence of events in his deposition. According to 6 Appeal No.251.92 him, after the incident he alongwith Vithal Sakpal, Dhonduram Sakpal went towards Kamble phata which was half a mile away from the scene of offence and then they took rickshaw and reached Mahad police station. From there he was taken to hospital at Mahad. The medical papers of Mahad hospital show that he was taken to the hospital at 12.15 am on 24.3.1989, from there he was sent to the hospital at Mangaon at 2 am and from there he was sent to G.T. Hospital, Mumbai. He has stated that his condition was serious. He has then stated that he was in G.T. Hospital for about 8 days as indoor patient. Dr.Sambhaji Gauro - P.W.13 has, however, stated that this witness was brought to G.T.Hospital on 25.3.1989 and was discharged on 26.3.1989. The evidence of the doctor in respect of admission and discharge finds support by the evidence of the investigating officer. Then P.W.2 has stated that when he was at Mangaon hospital, the police approached him and enquired about the incident. Before that, he states, that police had enquired about the incident at Mahad and they recorded his statement and obtained his signature, which is treated as FIR in the present case (Exhibit-20). It is thus clear from the sequence of events given by this witness that after the alleged incident, first he went to Mahad police station and from there he was sent to Mahad hospital. The Mahad hospital papers clearly show that he was taken to the hospital by police constable - Salunke and he reached there at 12.15 am on 24.3.1989. The medical papers further show that the doctor examined him immediately on his admission in 7 Appeal No.251.92 the hospital. In view thereof we once again perused the FIR which was recorded at about 10.30 pm on 23.3.1989. We also perused the portion of the FIR marked as “A” by the learned Sessions Judge. The statement marked “A” reads that “P.W.2 was treated at Government hospital, Mahad and for further medical treatment he was transferred to Mangaon with “memo””. Reference to his treatment at Mahad hospital clearly shows that the FIR was recorded after his admission and treatment in the Mahad hosptial and if that is correct we fail to understand as to how the FIR was recorded at 10.30 pm on 23.3.1989 when the medical papers clearly shows that he was admitted in Mahad hospital at 12.15 pm on 23.4.1989. Thus, the veracity of the FIR itself becomes doubtful. From the evidence of medical papers it is clear that after the alleged incident P.W.2 approached the police station and from there he was first sent to the hospital, as is usually done by the police in such cases, and from there, having regard to his critical condition he was sent to Mangaon hospital and from there to G.T.Hospital, Mumbai. The medical papers produced on record in all these hospital support this sequence. If this sequence of events is taken as true and correct then it is not possible to accept that his statement Exhibit-20 was recorded by the police at Mahad police station at 10.30 pm. 7. This takes us to consider the other ground on which evidence of this witness (P.W.2) was challenged to contend that he is not 8 Appeal No.251.92 fruitful witness. As we have observed earlier, this witness in his cross examination has clearly stated that after his admission to Mahad hospital he was sent to Mangaon hospital and from there to G.T. Hospital, Mumbai since his condition was critical. Dr.Sambhaji Gauro - P.W.13 has stated that P.W.2 was admitted in the hospital on 25.3.1989 and was discharged on 26.3.1989. He has further stated that on examination he found one sutured would of 4 1/2 inch on his left parietal region and one abrasion on the left thigh. In the cross examination he has stated that in every medical case they are suppose to mention history of assault, however, in case of this witness no history of assault was mentioned as he was transferred from Mangaon hospital. It is in this backdrop it was vehemently submitted that having regard to the testimony of this witness so also the medical papers showing his presence in three hospitals one after another it was impossible for this witness to remain present in the morning on 24.3.1989 for spot panchnama Exhibit-24. The spot panchnama Exhibit-24 was drawn between 8 am and 9 am on 24.3.1989 and according to the prosecution, the scene of offence was shown by Harishchandra Sakpal – P.W.2. If this witness was in the hospital at the relevant time how he could show the scene of offence in the morning at 8 am on 24.3.1989. This question also remained to be addressed by the prosecution. In the examination-in-chief so also in the cross examination P.W.2 has clearly given the sequence of events which clearly show that he was initially admitted in the 9 Appeal No.251.92 hospital at 12.15 am on 24.3.1989 and then was sent to Mangaon and from there to G.T.Hospital and in G.T.Hospital he was indoor patient for about eight days. Even if it is assumed that he was in hospital only till 26.3.1989, as stated by the doctor P.W.13, still he could not have remain present for the spot panchnama at 8 am on 24.3.1989. This discrepancy has not been explained by the prosecution at all. The investigating officer in his evidence has also stated that the spot panchnama was drawn at the instance of this witness but has not explained as to how he could remain present for spot panchnama when admittedly he was in hospital at that time. 8. Apart from this there are several inconsistencies, discrepancies and contradictions in the evidence of this witness which the learned Judge has taken into account and in paragraph 18 made the following observations: “18. Now, after coming to the principle of scanning of evidence carefully, the evidence of each and every witness called to be an eye witnesses has to be seen one by one. As per this witness P.W.2 was the only person who was having stick in his hand and a gupti blow given by accused Baliram he took it on his stick. As per this witness except him none of them i.e. the four persons viz. Gouru Rama, Shantaram and Harischandra Ganpat were not having any weapon like stick. But, if we go to the evidence of Savita P.W. 7 as per this witness all these four persons were having sticks when they 10 Appeal No.251.92 started to search the persons who went to lodge the complaint to the police station about the day incident took place. This witness has clearly admitted in para six of his evidence that from the place where the incident took place village Bhogav is situated on the distance of call. There is also admission from this witness that the accused persons, approached near them, none of them was having a double weapon. Part of this admission will be dealt with when a recovery of weapon from the accused persons will be discussed. As per this witness he had only two injuries, on this thigh he had received a gupti injury but surprisingly, though he had admitted that he was wearing half pant he did not say that whether ther was damage to his pant when he received injury on his thigh. Similarly, this witness said that Harishchandra (P.W.6) was given one or two stick blows, and Harishchandra had received these two stick blows on his back. Whereas as per Harischandra Ganpat (P.W.6) he had received only one injury on his back. As per this witness in his report he had not mentioned about the farashi blow given to Shantaram Gangaram by Sitaram. This is a material contradiction in a report Exh.20 given by this witness. This witness do said that when he went to lodge the report at that time the others from Budhawadi were present with him, but surprisingly in the evidence of Bhalerao PSI he said that only this complainant came to lodge report in the police station. As per this witness, Gouru, Shantaram and he himself was assaulted on one place, but a spot map Exh.18 reflects otherwise, 11 Appeal No.251.92 that they were assaulted at the different places. Gouru was lying on one side of the road and Shantaram was lying on the other side of the road.” 9. We do not find any reason to take a view at variance with the one reached in the order of acquittal passed by the trial Court. The conclusions recorded by the trial Court are based on appreciation of oral evidence. Similarly, we do not find that the reasons recorded by the trial Court are perverse or unreasonable. Every accused is entitled to the benefit of doubt regarding his guilt and when the trial Court acquitted him, he retains the benefit in the appellate Court also. We, therefore, agree with the view expressed by the learned Sessions Judge for discarding the evidence of this witness. 10. That takes us to consider ocular evidence of Shantaram Ganpat Sakpal – P.W.3. This witness has also stated as to how the incident occured. We find several inconsistencies, discrepancies in the evidence of P.W.2 and P.W.3 – Shantaram. Over and above this, P.W.3 has stated that the place of offence was busy road. Despite this, the prosecution has not made any attempt to examine independent witness in support of their case. All the three witnesses are interested witnesses which fact has not been disputed even by the prosecution before us. The learned Sessions Judge while discarding the evidence of this witness in paragraph 19 of the judgment has observed thus: 12 Appeal No.251.92 “19. As per witness no.3 Shantaram Shel-Kamble road is busy road, where the incident took place. As per this witness he was having Bamboo stick of 3 ft. length, Harishchandra Sambhaji was also having Bamboo stick, Gouru Rama deceased was also having a piece of Bamboo. If this admission is considered with the evidence of P.W.2 it creates a doubt, not only about the version of P.W. 2, but also in respect of the version of this P.W.3. Why hide and seek, when Savita P.W.7 specifically stated that all the person of second party went to search first party were having stick. The most important admission in respect of this witness P.W.2 is that about the incident of 1974 in which he admitted that his brother Vitthal was assaulted by deceased Gauru Rama and Laxman Rama i.e. P.W.8 what has happened to the case is otherwise, but it definitely reflects that there was enmity between brother of Vitthal and Gouru Rama. As per this witness he had seen the accused persons coming form the distance of 25 ft. but not apprehended any danger from the accused person till they reach to the complainant party. It means the enmity as alleged with the accused persons and the motive for the incident is itself washed away. It also shows that there was no apprehension about the assault otherwise it was every possible for these witnesses to give a call to the persons of the Bhogav Budhawadi which is on the distance of a call from the spot, or to run away from the spot.” We do not find any reason to take a different view then the one 13 Appeal No.251.92 taken by the learned Sessions Judge on appreciation in respect of this witness. 11. P.W.6 – Harishchandra Ganpat Sakpal also claims to be an eye witness. He claims that he also had seen all the accused with weapons like sword, axe, gupti, iron bar, sticks and that they assaulted the deceased. His testimony also suffers from inconsistencies, discrepancies and contradictions. For instance as per this witness accused no.5 – Nathu gave stick blow on his back whereas according to P.W.3 – Shantaram, Nathu Kapse was holding farashi and he assaulted with farashi on his neck (P.W.3). If the testimony of P.W.3 and P.W.6 are taken as true that would mean that accused no.5 – Nathu Kapse was holding two weapons which is not even the case of the prosecution. Similarly, he (P.W.6) also claims that he sustained injuries on his back and had taken treatment by applying turmeric. He further claims that he was also present in the police station when P.W.2 lodged the report. From the facts of the case and as reflected from the evidence of P.W.2 and P.W.3 it is clear that all the seven accused were holding some or the other weapon and they assaulted not only the deceased but they also to P.W.2 and P.W.3 and they all sustained several injuries. According to this witness, the incident went on for 10-15 minutes, still he (P.W.6) sustained hardly one injury on his back which he treated at home. This, as has been held by the trial Court, creates doubt about his 14 Appeal No.251.92 presence at the scene of offence. It is also pertinent to note that P.W.6 claims that he had seen two steel bars in hands of accused no.4 – Shankar and he allegedly assaulted Shantaram (P.W.3). However, P.W.3 himself does not say so. Insofar as accused nos.2, 3 and 4 are concerned, this witness has not attributed any specific role except accused no.5, who allegedly assaulted him on his back. Apart from this, several inconsistencies noticed by the learned Sessions Judge are reflected in paragraphs 18 to 21 of the judgment. The prosecution has chosen not to examine independent witness, though were available and in view thereof the trial Court has disbelieved this witness. It is now well settled that if two views are possible on an appraisal of the evidence adduced in the case and if the trial Court has taken the view which is plausible one, the appellate court is not expected to interfere with an order of acquittal, merely because other view is possible. The absolute assurance of guilt, is the test which the appellate court is expected to apply while dealing with the appeal against order of acquittal. The evidence of these three witnesses, in our opinion, cannot be stated to be sufficient to hold the respondent- accused guilty beyond reasonable doubt. 12. We have also examined evidence of recovery of weapons at the instance of the accused. The weapons were recovered at the instance of all the accused except accused no.2 – Baliram and accused no.7 – Gajanan. P.W.14 and 15, the common panch witnessees for all 15 Appeal No.251.92 panchnamas drawn by the police during investigation. We have perused the evidence of P.W.14 and it would be relevant to reproduce the portion of his cross examination as reflected in paragraph 6 of his deposition: “6. On 27.3.1989 I do not remember who came to call me in the police station. It is true that as there was a death of Gauru from our Wadi on that day i.e. on 25.3.89 there was a sorrowful atmosphere. It is true that because of the sorrowful state in our Boudhwadi I did not leave my wadi for about 10 days. It is true that all the signatures wherever I had signed were obtained from me by the Police in the Gram Panchayat office at Daul Konda. It is true that I was called in the office of G.P. Office, my signatures were obtained on the papers by police and then I was asked to go home. It is true that on 31.3.89 I was again called at office of G.P. At Daul Konda. It is true that again I was called by Police and asked me to sign on papers and asked to go to home. It is not true that whatever I deposed that the weapons discovered by the accused persons is false one.” 13. Even the evidence of the investigating officer Shri Jadhav also would not help the prosecution to prove recovery of weapons. The prosecution has not taken trouble to connect the accused with the weapons through this witness and therefore, the trial Court held that evidence of Shri Jadhav P.W.19 is not falling within the test under section 27 of the Evidence Act. This witness has not given details to 16 Appeal No.251.92 connect accused with weapons and hence it cannot be stated to be sufficient to support the prosecution case. Moreover, it is interesting to note that though according to the eye witnesses all the accused were holding one weapon each in their hand, the prosecution has produced in the court 13 weapons allegedly used by the accused and the stick held by P.W.2. The evidence is not clear in respect of sticks carried by P.W.2, P.W.3, P.W.6 and the deceased. Except Savita – P.W.7 no other witness has stated that these persons were also carrying sticks. P.W.2 and P.W.6 also do not state that they were carrying sticks at the relevant time. In the circumstances, we are of the opinion that the prosecution has not proved recovery of weapons and the evidence in that respect, is not sufficient to connect the accused with the alleged incident of assault. There is yet another panchnama of attachment of clothes Exhibit-48. Accused no.1 - Mahadeo Pawar had allegedly produced the clothes worn by him at the time of incident so also the clothes of accused no.7.