Full Judgment Text
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CASE NO.:
Appeal (crl.) 1097 of 2005
PETITIONER:
Sambhaji Hindurao Deshmukh & Ors.
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 17/01/2008
BENCH:
G. P. Mathur & R. V. Raveendran
JUDGMENT:
J U D G M E N T
R. V. RAVEENDRAN, J.
This appeal by the accused 2 to 6 is against the judgment dated
29/30.3.2005 of the Bombay High Court allowing the Criminal Appeal
No.193 of 1995 filed by the State of Maharashtra and reversing the judgment
of acquittal dated 30.1.1995 passed by the IV Additional Sessions Judge,
Satara in Sessions Case No.123 of 1989. For convenience, appellants 1 to 5
will be referred to as accused nos. 2, 3, 4, 5 and 6 respectively.
2. The case of the prosecution in brief is as under :
2.1) The family of Ganpat consisting of himself, his wife Putlabai and sons
Shivaji, Vilas and Ananda, were residents of Kusur village. Ganpat and his
sons belonged to the group of one Adhikrao Kadam and had canvassed
against Sambhaji (accused no. 2) and his group in the Gram Panchayat
Elections. Though A2 got elected, his group has defeated. Further Ganpat
allegedly refused to transfer three Guntas of land in the village belonging to
his family, as demanded by A2 Sambhaji. Consequently A2 and his
supporters had a grudge against Ganpat and his family. A2 Sambhaji, as
Chairman of the local co-operative society had withheld the issue of ’no-due’
certificate to Ganpat and caused hardship to him. Prabhakar (accused no. 1
who died during the pendency of appeal) and Mohan (Accused No.4) were
brothers of Sambhaji (Accused No.2). Appasaheb (Accused No.3) was the
cousin, and Prahalad and Mahadev (Accused Nos. 6 and 7) were the friends
of Sambhaji. Shankar (Accused No.5) was the servant of A1 Prabhakar. All
the accused were also residents of the same village. There was simmering
differences between the two groups.
2.2) At about 8 P.M. on 18.5.1988, Ganpat’s son Shivaji was assaulted by
the accused by catching hold of him and tearing his Banian near Jotiba
temple. Putlabai, mother of Shivaji, rushed from her house which was
nearby and took Shivaji back home. That night at about 10 P.M, when
Shivaji and other family members were inside the house, A6 Prahlad called
Shivaji to come out. When Shivaji came into the courtyard in front of the
house, the accused armed with sword, axes, sticks and stones assaulted
Shivaji. Shivaji’s parents Ganpat and Putlabai and Ananda came out of the
house, one after the other. They were also assaulted by the accused and were
injured. Lastly, Vilas another son of Ganpat, came home, when the others
were being attacked, and he was also assaulted by the accused. By then
Adhikrao Kadam (for whom Ganpat’s family worked during the Gram
Panchayat Elections) came in his Jeep. Seeing him, all the accused ran away.
Adhikrao Kadam took Ganpat and his son Vilas, who were injured to
Krishna Hospital at Karad where they were treated around 11.00 P.M.
2.3) On being informed about the fight in Kusur village and two injured
being admitted to the hospital, the I.O. (V.G.Chougule, PSI - PW17) went to
the hospital accompanied by police staff. He recorded the statement of Vilas
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(FIR - Ex.71) at about 1 A.M. on 19.5.1988 to the effect that when he
reached home, he saw a crowd in front of his house and learnt from them
that there was a dispute between A1, A2 and A3 with his father Ganpat; that
when he was entering the house, A1 gave him two blows with a sword, and
A2 hit him with a stick and he fell unconscious; and that he and his father
were brought to the Hospital for treatment. On the basis of the said FIR, CR
No.150/1988 was registered in the Karad Taluk Police Station.
2.4) Immediately thereafter, the IO went to Kusur village (around 1.30
A.M. on the morning of 19.5.1988). He did not find anyone in the house of
Ganpat. The accused were also not traced. He returned to the police station
around 4.30 A.M. By then Ganpat’s another son Ananda reached the police
station. The IO again went back to the Kusur village with Ananda and drew
spot panchanama (Ex.33), under which blood stained stick and earth
smeared with blood and some blood stained stones were recovered from the
place of incident. While drawing the spot panchnama, the dead body of
Shivaji was found in the bathroom in the cattle shed in front of the house.
Inquest panchanama was recorded as per Ex.27. The dead body was sent for
post mortem through constable More (PW16). Thereafter, the statements of
Ganpat, Putlabai, and Ananda (PWs, 12, 13 and 14) were recorded. During
the search, IO found one bamboo stick in front of the house of A1 which
was seized under Panchnama Ex. 35 in the presence of PW 3 & 4. The
blood-stained clothes of PW12 Ganpat and PW9 Vilas were seized under
seizure panchanama Exs.23 and 24.
2.5) In regard to the earlier incident near Jotiba temple that occurred at 8
P.M, Shivaji More, brother of A6 had lodged a complaint with Kole outpost
on 18.5.1988 itself, alleging that Ganpat and his sons namely Vilas, Ananda
and Shivaji along with others had caused rioting and assaulted him and his
brother Tanaji More. The said complaint was passed on to Karad Police
Station and registered as CR No.151/1988.
2.6) On 26.5.1988, A2 Samabhaji and A3 Appasaheb were arrested in
village Tulsan. Accused 5, 6 and 7 (Shankar, Prahlad and Mahadeo)
surrendered on 1.6.1988. Accused 1 and 4 (Prabhakar and Mohan) had
secured anticipatory bail and they were formally shown as arrested on
7.7.1988 and 16.7.1988 respectively.
2.7) On 29.5.1988, Sambhaji (A2) offered to give a statement. IO called
PW5 and PW6 as witnesses. In their presence A2 made a statement
(Memorandum recorded as Ex.37) stating that he had concealed an axe and
sword under a Tamarind tree. A2 led the IO and PWs. 5 and 6 to that place
and the axe and sword were recovered and seized under Panchnama Ex.37A.
Shankar (A5) volunteered on 4.6.1988 to give a statement. IO called PWs. 7
and 8 as witnesses. In their presence A5 stated that he had concealed an axe
and stick in the bamboo shrubs and offered to produce the same and his
statement was recorded as per Ex.40. A5 led the IO and PWs 7 and 8 to the
place where they were hidden and the axe and stick were recovered and
seized under Panchanama Ex.40A.
3. On completion of investigation, charge-sheet was filed on 3.10.1988
against A1 to A7 and JMFC, Karad committed the matter to the Sessions
Court. Charges were framed for offences under sections 143, 147, 148 and
sections 302, 307, 326, 325, 324, and 323 read with section 149 IPC.
Alternative charges were framed for offences under sections 302, 307, 326,
325, 324, 323 read with section 34 IPC. The accused pleaded not guilty.
During trial, prosecution examined 17 witnesses and one witness was
examined on behalf of the defence. The parents of deceased Shivaji (Ganpat
and Putlabai) were examined as PWs. 12 and 13. The brothers of the
deceased, Vilas and Ananda, were examined as PWs. 9 and 14. All the four
were the injured eye-witnesses. V. G. Chougule, IO was examined as PW17.
Dr. H.R. Tata (who treated Vilas) and Dr. Madukar Salunkhe (who treated
Putlabai and Ananda and conducted postmortem of body of Shivaji) Dr.
R.B. Gunaki (who treated Ganpat) were examined as PWs 10, 11 and 15.
Maruti Desai (PW1) was the panch witness of inquest panchanama. PW2
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drew the sketch of the scene of the crime. PW16 took the body of Shivaji for
post mortem. PWs.3 and 4 were the Panch witnesses for the spot
panchanama (Ex.33) and recovery panchanama (Ex.35). PWs. 5 and 6 were
the panch witnesses for the statement of A2 (Ex.37) and recovery
panchanama (Ex.37A). PWs. 7 and 8 were the panch witnesses to the
statement of A5 (Ex.40) and recovery Panchnama (Ex.40A). One Kalawati,
neighbour of Ganpat was examined as DW1.
4. The defence was one of total denial and false implication by Ganpat
and his family due to previous enmity. According to defence version, the
mob which had assembled near Ganpat’s house (of which they were not a
part) had pelted stones at Ganpat’s house and members of the mob might
have caused injuries to Ganpat and his family.
5. The trial court after appreciating the evidence, acquitted all the
accused by its judgment dated 13.1.1995. The trial court found that all the
panch witnesses (PW 5, 6, 7 and 8) examined in support of the alleged
disclosures by accused A2 and A5, and all the panch witnesses (PW 3, 4,
5,6,7 and 8) in regard to alleged recovery of weapons, had turned hostile and
did not support the case of the prosecution. Even the informant Vilas (PW9),
brother of the deceased, did not support the case of the prosecution. The trial
court found evidence of the father, mother and the two brothers of the
deceased were full of contradictions regarding material aspects and
particulars, which could not be brushed aside as minor inconsistencies. The
trial court found an attempt to falsely implicate the accused in view of their
previous enmity. The non-examination of any independent witnesses and
neighbours and non-examination of Adhikrao Kadam were found to be
significant omissions. It therefore, held that the prosecution had failed to
prove that the accused were members of an unlawful assembly and
committed a riot armed with deadly weapons or that in furtherance of any
common object, they caused the homicidal death of Shivaji, and attempted to
murder or cause grievous hurt to Ganpat, Vilas, Putlabai and Ananda. The
state filed an appeal against the said acquittal. The High Court held that on
the evidence of the parents and brother of the deceased (Ganpat, Putlabai
and Ananda) who were natural witnesses who were also injured in the same
incident has to be believed. On appreciation of the evidence, it held that the
charges against the accused 1 to 6 were proved. As the first accused had died
during the pendency of the appeal, the appeal against accused no.1 was
treated as abated. It upheld the acquittal of accused no.7 as his participation
was not proved. Accused 2 to 6 were convicted for offences under section
302 read with section 149 IPC as also under sections 143, 147, 148, 323,
324, 325 and 326 read with section 149 IPC. In regard to the offence under
section 302 read with section 149, the accused 2 to 6 were sentenced to
rigorous imprisonment for life and imposed a fine of Rs.5000/- and in
default, imprisonment of one year. In regard to offence under section 326
read with section 149, they were sentenced to RI for two years and pay a
fine of Rs.2000/- and in default, imprisonment for six months. No separate
sentences were imposed in regard to the offences under other sections. The
said judgment is challenged by accused 2 to 6 in this appeal.
6. The principles relating to interference by the High Court in appeals
against acquittal are well settled. While the High Court can review the entire
evidence and reach its own conclusions, it will not interfere with the
acquittal by the trial court unless there are strong reasons based on evidence
which can dislodge the findings arrived by the trial court, which were the
basis for the acquittal. The High Court has to give due importance to the
conclusions of the trial court, if they had been arrived at after proper
appreciation of the evidence. The High Court will interfere in appeals
against acquittals, only where the trial court makes wrong assumptions of
material facts or fails to appreciate the evidence properly. If two views are
reasonably possible from the evidence on record, one favouring the accused
and one against the accused, the High Court is not expected to reverse the
acquittal merely because it would have taken the view against the accused
had it tried the case. The very fact that two views are possible makes it clear
that the prosecution has not proved the guilt of the accused beyond
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reasonable doubt and consequently the accused is entitled to benefit of doubt
[vide G. B. Patel vs. State of Maharashtra - 1978 (4) SCC 371, Babu v. State
of U.P - 1988 (2) SCC 21, Awadhesh v. State of M.P - 1988 (2) SCC 557,
Thanedar Singh v. State of M.P - 2002 (1) SCC 487, and State of Rajasthan
vs. Rajaram - 2003 (8) SCC 180]. Keeping the said principles in view, we
will examine the evidence to find out whether the findings of the trial court
were not based on evidence and whether there was justification for the High
Court to interfere with the decision of the trial court.
7. We will first refer to the evidence regarding the alleged attack by the
accused on the deceased Shivaji.
7.1) Vilas, brother of the deceased Shivaji, examined as PW9 did not say
anything at all about the attack on Shivaji.
7.2) Ganpat (PW12), father of deceased Shivaji stated in his examination
in chief that when Shivaji came into the courtyard all the accused rushed
towards him; that accused A1 Prabhakar assaulted him with a sword on his
head; thereafter A5 Shankar and A4 Mohan assaulted him with axes; and at
the same time, A2 Sambhaji and A3 Appaso also assaulted him with sticks
and stones. Thus in examination in chief Ganpat assigns specific roles to
each of A1 to A5 in the attack on Shivaji. In his cross examination he
admitted that when he made the statement to the Police on 19.5.1988, he did
not say that A4 Mohan had assaulted Shivaji. He further admitted that in his
statement recorded by the police on 19.5.1988, there is no reference to A2,
A3, A4 and A5 assaulting Shivaji. He claimed that though he had mentioned
to the police that A5 Shankar had assaulted Shivaji with an axe and that A2
and A3 had assaulted Shivaji with sticks and stones, those statements were
not recorded by the police. But the IO (PW17) stated :
"In his statement PW12 Ganpat before me dated 19.5.1988, did not state
that accused no. 5 Shankar and accused no. 7 Mahadeo were amongst
assailants of Shivaji himself and other.
PW12 Ganpat also did not state before me in his statement dated
19.5.1988 that accused no. 5 Shankar assaulted Shivaji with axe or by any
other weapon. He also did not state before me that accused no.2 Sambhaji
and accused no.3 Appasaheb assaulted deceased Shivaji with stick and
stone."
The evidence of Ganpat about A2 to A5 attacking Shivaji with axes, sticks
and stones is thus clearly an afterthought and improvement at the stage of
evidence, to falsely implicate A2 to A5.
7.3) Putlabai (PW13) mother of Shivaji stated in her examination-in-chief
that A1 Prabhakar assaulted Shivaji with a sword, and A5 Shankar and A6
Prahlad assaulted Shivaji with axe. (But her son Ananda (PW4) has clearly
stated in his examination-in-chief that A6 Prahlad was unarmed). But in her
cross examination she says that when she came out of the house, she saw her
son Shivaji running towards the bathroom in the cattle shed and did not
return from bathroom. If by the time she came out of the house, Shivaji was
already running towards the bathroom and did not return thereafter, it is
obvious that she did not see who assaulted Shivaji and with what weapons.
7.4) Ananda, another brother of Shivaji, in his examination-in-chief made
a general statement that his brother Shivaji was attacked by all the accused
persons with the weapons with which they were armed. He stated that A1
was armed with a sword, A4 and A5 with axes, A2 and A3 with sticks but
A6 and A7 were unarmed. In the cross examination he stated that all his
family members were inside the house, that Shivaji went out first, thereafter
his father went out, thereafter his mother went out and he came out last, and
when he came out into the courtyard he saw his brother Shivaji running
towards the bathroom. Obviously therefore he also did not see who assaulted
Shivaji, as by the time he came out of the house, Shivaji was already running
towards the bathroom.
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7.5) Thus except Ganpat (PW12), none saw any of the accused attacking
Shivaji. PW9 did not see anything; PW13 and PW14 could not have
witnessed the attack on Shivaji as according to them, they only saw him
running towards the bathroom. Ganpat who is the only person who could
have witnessed the attack on Shivaji, says that A1 attacked Shivaji with a
sword, both in his statement on 19.5.1988 and in his evidence. In regard to
A2 to A5 apparently he did not say anything to police when his statement
was recorded on 19.5.1988 but assigned them roles in the attack on Shivaji
when he was examined in court. An analysis of the entire evidence thus
shows there is only one eye-witness (PW12) in regard to the attack on
Shivaji and his evidence is only of A1 attacking Shivaji and there is no
evidence of any of the other accused assaulting Shivaji.
8. We may next refer to several strange circumstances in regard to the
death of Shivaji and discovery of his body.
8.1) The first circumstances is about the altercation between Shivaji and a
crowd at about 8 p.m. on 18.5.1988 near the Jotiba temple (situated at a
distance of 10 yards from Ganpat’s house). Putlabai says that at about 8 p.m.
Shivaji left the house to go towards the shop, that immediately thereafter she
heard a hue and cry and came out of the house, that she saw a crowd of
many persons (including one Shivaji More and Tanaji More) had gathered
near the Jotiba temple and her son Shivaji was standing with his Banian torn
and that she advised him not to quarrel and brought him back to the house.
Ganpat admits that in regard to the said incident at 8 p.m. Shivaji More and
Tanaji More (brother of A6) had filed a complaint alleging that Shivaji and
his brothers along with others had assaulted them on 18.5.1988 at 8 p.m.
near Jotiba temple. Therefore it is evident that at about 8 p.m., a huge
unnamed crowd (including one Shivaji More and Tanaji More) had
assembled near the Jotiba temple and in a fight Shivaji’s banian was torn and
in regard to that incident, Shivaji More and Tanaji More had complained that
Shivaji along with his brothers and others had assaulted them. Though in her
examination in chief Putlabai stated that A1, A3, A5 and A6 caught hold of
Shivaji at about 8 p.m. and tore his banian, in the cross examination she
admits that when she heard a hue and cry and went out of the house towards
the temple she saw her son Shivaji standing there with banian torn and she
brought him back. It is thus evident that she did not witness A1, A3, A5 and
A6 or anyone else catching hold of Shivaji or tearing his banian at 8 pm. The
reason why a crowd had assembled near the temple near Ganpat’s house and
what was the quarrel in which Shivaji’s banian was torn, remains
unexplained. None of the prosecution witnesses has given the reason for a
hostile crowd standing at 8 pm near the Jotiba temple and Shivaji being
assaulted and his banian being torn. There is also a further reference to the
crowd assembling near Ganpat’s house at 10 P.M. Putlabai (PW13), Ananda
(PW14) and DW1 (Kalawati) refer to a mob of villagers coming near
Ganpat’s house just before the incident (around 10 p.m.) and stones being
thrown at Ganpat’s house. The prosecution has not explained why the village
crowd was furious with Ganpat and his family, why they threw stones at
Ganpat’s house and who were the members of the village crowd. DW1,
however, categorically stated that none of the accused were part of the
crowd/mob that threw stones at Ganpat’s house.
8.2) The next is the strange behaviour of Ganpat and his family. Putlabai
(PW13) stated that her son Shivaji returned home at 8 P.M. after taking his
meal in his friend’s house, that he left thereafter to go to his shop, she heard
a hue and cry, went out and found Shivaji near Jotiba Temple with his
Banian torn, tells him not to quarrel and brings him back to home and
confined him in a room so as to prevent him from going out again and bolted
the door of the house. Ganpat (PW12) stated that on 18.5.1988 he returned
home at about 8 P.M, saw the accused standing in front of his house and
suspected danger, so made his escape and went to his house by another way.
(But he admitted that there is only one entrance to the house in the front of
the house. If the accused were standing in front of the house, there was no
question of his coming by another way. Be that as it may). He also stated
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that when he entered his house all the accused were present in the courtyard
and none assaulted him when he was entering the house. Ganpat further
stated that when he entered the house, he saw that all his family members
were frightened and his son Shivaji told him that the accused had assaulted
him at 5 to 6 P.M. on that day. Ganpat then stated :
"Myself, my son and my family members were sitting in the house by
bolting the door from inside, after I came from village. As Prahlad More
(Accused No.6) called deceased outside, he (Shivaji) came out of the
house. I did not advice Shivaji not to go out of the house."
But Putlabai on the other hand says :
"Myself, my husband, Shivaji and Ananda were in the house prior to
Starting of the incident. It is true that at that time so many persons from
our village rushed in crowd towards our house showering the stones at the
directions of our house. Hearing the hue and cry of this crowd, Shivaji
came out of the room and went outside\005.."
If Shivaji had already been attacked, if the family was frightened, if the mob
was throwing stones, if they had bolted the door and were remaining inside,
one would expect Ganpat and Putlabai to prevent their son Shivaji from
going out or at least ask him to stay inside. But they did not. We refer to his
aspect only to show that the conduct was not natural or that the events did
not happen in the manner put forth by the prosecution.
8.3) The next strange circumstance is the non-discovery of Shivaji’s body
for more than 8 hours after his death. According to the prosecution case the
attack on Shivaji resulting in his death occurred at about 10 pm on
18.5.1988. Ganpat, Putlabai and Ananda stated in their examination that they
saw Shivaji being assaulted by some of the accused at about 10 p.m. But the
cross examination of the witnesses demonstrates that neither Putlabai nor
Ananda in fact saw any of the accused assaulting Shivaji and that only
Ganpat apparently saw what happened. Both Putlabai and Ananda stated
that when they came out of the house they saw Shivaji running towards the
bathroom near the cattle shed. (The incident allegedly occurred in the front
courtyard of Ganpat’s house and the cattleshed and bathroom adjoined the
front courtyard and the distance is hardly a few feet). But Ganpat states in
the examination in chief that when accused attacked Shivaji, "Shivaji fell
down" and "Shivaji met with death instantaneously". In his cross
examination, he said "Shivaji died on the scene of offence itself. I saw the
incident by standing in the courtyard of my house." This contradicts the
evidence of his wife and his son Ananda that Shivaji on being assaulted, ran
towards the bathroom. Ganpat says that after Shivaji fell down, he (Ganpat)
was attacked, his wife and son Ananda were attacked and in the meanwhile
Adhikrao Kadam arrived in a jeep and seeing him all the accused escaped
from the place. He further states that he along with his son Vilas were taken
by Adhikrao Kadam to Krishna hospital Karad for treatment. He also says
that when going to the hospital, he asked his wife Putlabai and son Ananda
to stay back at home. Therefore when Ganpat and Vilas left for the hospital,
Shivaji was lying in the courtyard, obviously in coma or dead. He was not
taken to hospital. When the IO came about 3 hours later at about 1.30 a.m.
on 19.5.1988, the body was not in the courtyard. Who took Shivaji’s body to
the bathroom? Why was Shivaji’s death or his being injured was not
informed to police? The IO apparently did not search the entire house (at
1.30 A.M. on 19.5.1988) as no one informed him about Shivaji being dead
or injured. Even when Ananda went to the Police Station at 4.30 a.m. on
19.5.1988, he did he not inform about Shivaji being dead or injured. Even
when IO returned to the scene of crime around 6 A.M. (as per the evidence
of PW14) neither Ananda nor IO searched for Shivaji. The IO found the
body only when he went round for drawing the spot panchnama. Why the
delay of 8 hours in discovering the body of Shivaji (10 A.M. on 18.5.1988 to
6 A.M. on 19.5.1988) when his body was obviously in the courtyard of the
house? These questions have not been answered. It is not only strange but
virtually impossible to believe that the body of Shivaji would have remained
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unattended and unchecked till next day morning in the background of what
had happened.
8.4) The next strange circumstance is why nobody bothered about Shivaji.
The natural and instinctive reaction of any parents or brothers would have
been to take Shivaji to a hospital and get him treated. But Shivaji was lying
in the courtyard itself (according to Ganpat) or went towards the bathroom
(according to Putlabai and Ananda). None bothered to verify whether he was
dead or alive, nor make any attempt to take him to the hospital for treatment.
Ananda who met the IO (at 4.30 A.M. on 19.5.1988) did not inform him that
Shivaji was assaulted and he was injured. If really the incident had occurred
in the manner narrated by these witnesses and Shivaji was seriously injured
it is strange that no one bothered about Shivaji. It was not as if there was any
other way to go out of the house through the cattle shed or bathroom and that
Shivaji could have gone out that way. Ganpat has clearly admitted that
except the main entrance there are no doors to go out of the house. If
Ganpat, Putlabai and Ananda were aware that Shivaji was attacked and
injured in the manner stated in their evidence and he was lying either in the
front courtyard or in the bathroom, the first natural action would have been
to find out his condition and give him treatment. It was not done. When
Adhikrao Kadam came to the spot in a jeep within a few minutes of the
attack on Shivaji, Ganpat made no effort to take Shivaji to hospital. Even
Putlabai and Ananda who remained in the house, did not verify what
happened to him. When the IO came around 1.30 pm in the early morning of
19.5.1988 he did not find the body of Shivaji nor did he find Putlabai and
Ananda at home. But when Investigating Officer returned around 6 pm on
19.5.1988 along with Ananda and while drawing the spot panchnama, he
found the dead body of Shivaji mysteriously lying in the bathroom. The
postmortem report and the evidence of Dr. Solanki (PW11) who conducted
the postmortem shows that the cause of death was "coma and death due to
skull injury with heart injury." As per the postmortem report, the death was
within two hours from taking the last meal and Putlabai says that the last
meal was taken by Shivaji before 8 pm. Therefore it is evident that Shivaji
did not go out after the injuries or come back later to die in the bathroom. He
died around 10 p.m. which was when the incident occurred. But if the
statement of Putlabai and Ananda that they had seen Shivaji running towards
the bathroom was true, does it mean that he was not seriously injured then?
Significantlt Putlabai stated in her cross-examination that she came to know
that Shivaji received cut injuries only when his body was taken out from the
bathroom on 19th morning after 6.00 a.m. This makes it clear that on
18.5.1988 when Ganpat and family members were injured, she did not even
know that Shivaji had been injured. It is also possible that Ganpat and
Ananda were also not aware that he was injured or that he died, when
Adhikrao Kadam came to the spot. Or it is possible that after Adhikrao
Kadam left with Ganpat and Vilas for treatment, Shivaji was injured by
someone else. That may explain why Ganpat, Putlabai and Ananda were
unconcerned about Shivaji. The alternatives are too many and there are no
satisfactory answers. In this connection, one significant discrepancy in the
evidence of Ganpat and Ananda requires to be noticed. Ganpat specifically
states that after the incident when he left the house with Adhikrao Kadam for
the hospital, Ananda was at home and he asked him to remain at home. This
is reiterated by Putlabai also. But Ananda says that when he was attacked,
he ran away and was not present when Adhikrao Kadam reached the spot.
We extract below the relevant evidence of Ganpat, Putlabai and Ananda.
Ganpat stated :
"Putlabai and my son Ananda also came out of the house. They were also
assaulted by the accused persons. Meanwhile one Jeep vehicle of one
Adhikrao kadam arrived there and seeing so all the accused made their
escape\005.. I asked my wife and my son Ananda to remain in the house and
myself, Adhikrao and PW9 Vilas went Krishna Hospital in Jeep of
Adhikrao".
Putlabai confirmed the above by stating that ’my husband and my son Vilas
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went to hospital at Karad after the incident. However, myself and my son
Ananda remained in the house.’ On the other hand, Ananda stated :
"A5 Shankar assaulted me with axe with its but end on my head\005\005 A2
Sambhaji and A3 Apasaheb assaulted with stick blows to Vilas on his
back and stomach. Thereafter, I went running towards harijan Basti of our
village. Thereafter, I went near Karad Dhebewadi Road at Kole village
shop and thereafter, I went to Gharewati. I boarded in a truck and came to
Karad Taluka Police Station at about 4 to 4.30 A.M."
The prosecution case if accepted would mean that Ganpat, a father left
injured Shivaji unattended in the courtyard even without verifying whether
he was dead or alive. It is not only the father, but also mother and brother
who did not bother about Shivaji and left him unattended. This is not a
natural reaction. We conclude that the answer is not that the conduct of PWs.
12, 13, and 14 was strange, but the facts were otherwise than what is put
forth by the prosecution, thereby demonstrating the falsity of the prosecution
case.
8.5) The next strange circumstance is the non-examination of Adhikrao
Kadam or any neighbour of Ganpat. Ganpat and his family worked for
Adhikrao Kadam in the Panchayat election and against A2 Sambhaji. Thus it
is obvious that Adhikrao was the leader or important member of the group to
which Ganpat and family belonged, which was fighting against A2’s group.
There was an attack by a mob at 8 p.m. against Shivaji and again an attack
by the mob by throwing stones at Ganpat’s house at 10 pm. PW13 Putlabai
stated in her evidence that ’many persons from our village rushed in a crowd
towards our house throwing stones in the direction of the house’. This is
reiterated by PW14 Ananda who stated that ’some persons threw stones at
our house’. Why was the stone throwing by the villagers, is not explained.
But Adhikrao Kadam appears in his jeep around 10 p.m. when the attack
against Ganpat’s family was going on. According to Ganpat, when Adhikrao
Kadam came, the persons attacking his family ran away. Why would the
attackers run away? Whether he was alone in the Jeep or he came with a
group is not mentioned. But it is stated that the moment he came in his jeep,
all the seven accused ran away. The crowd also disappeared. Adhikrao must
have witnessed the accused running away. Did he see Shivaji lying in the
courtyard? He took Ganpat and Vilas to hospital. He knew whether Ganpat
and Vilas were conscious or not. He would have been the ideal witness to
answer several questions which have remained unanswered. But strangely he
is not examined. In fact the IO does not even refer to recording his statement
during the investigation. The IO however stated that during investigation, he
recorded the statements of three neighbours of Ganpat, namely Kalawati,
Yasoda and Vasala but none of them were examined by the prosecution. On
the other hand, the defence examined one of them namely Kalawati who
stated that many persons came near the house of Ganpat and threw stones
that there was a scuffle between the crowd and Ganpat and his family
members. She also stated none of the accused formed part of the said crowd
which attacked Ganpat and his family. She also stated that she saw that
Ganpat and Villas sustained injuries, that Putalabai and Ananda did not
receive any injuries and that she did not see Shivaji in that scuffle and that
while Vilas and Ganpat were shifted to a hospital in the jeep of Adhikrao
Kadam, Putlabai and Ananda remained in the house. Nothing has been
brought out in her cross-examination to disbelieve her evidence.
9. It is in this background of material inconsistencies, large gaps and
prosecution’s failure to explain several relevant aspects, the trial court after
an exhaustive consideration of the evidence found that the evidence of
PWs.12, 13 and 14 was not reliable; that Vilas PW9 who was the informant,
had denied any knowledge of having stated that the accused had attacked
Shivaji; that except the three interested witnesses who also happen to be the
closest relatives of the deceased namely parents and brother, no one else has
spoken about the incident. On the other hand the defence examined DW1 a
neighbour of Ganpat, who stated that none of the accused formed part of the
crowd that assembled in front of the house of Ganpat throwing stones. Even
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if her evidence is discounted, the several strange unexplained circumstances
referred to above, cannot be brushed aside either as minor inconsistencies or
omissions in evidence. The evidence clearly shows that an attempt has been
made by PWs. 9, 12, 13 and 14 to implicate all the accused or at least
accused 2 to 6 for the death of Shivaji and attack on PW 9,12,13 & 14 on
account of previous enmity. It is also evident that Vilas got cold feet, did not
go along with family and denied any knowledge when he was examined in
court. On the facts and circumstances, there was absolutely no justification
for the High Court to interfere with the decision of the trial court. The
learned counsel for appellants drew our attention to several other
inconsistencies in the evidence of PWs. 9, 12, 13 and 14. As they are minor,
we do not propose to examine them.
10. Learned counsel for respondent submitted that there was nothing
strange about Ganpat going with Adhikrao Kadam in his jeep for treatment
immediately after the incident without verifying what happened to his son
Shivaji, even though he had been subjected to a murderous attack and had
fallen down at the spot. He submitted that Ganpat himself was unconscious
due to his injuries and he was taken by Adhikrao Kadam in his jeep in an
unconscious condition and therefore there was no question of the Ganpat
leaving for the hospital without bothering about Shivaji. When we examine
the evidence, we find that the said explanation is totally unacceptable.
Ganpat (PW 12) did not say in his evidence that he became unconscious
when he was attacked. In his examination in chief he stated that
Shivaji fell down on being assaulted; he, his wife and son Ananda were
assaulted; that in the meanwhile the jeep of Adhikrao Kadam came and the
accused escaped and he was taken in the jeep to Krishna hospital. Ganpat
stated in his cross examination that "I asked my wife and my son Ananda to
remain in the house and myself, Adhikrao Kadam and Vilas went out to
Krishna hospital in the jeep of Adhikrao Kadam." Thus he was fully in his
senses all along and was never unconscious. Even the hospital records
support this fact. The physical examination report forming part of the
hospital records (marked Ex. P67) and the injury certificate (Ex. P68) show
Ganpat was examined on 18.5.1988 at about 11 P.M. for "alleged stab
injuries inflicted by sword" and the patient was conscious.
11. Except the oral testimony of PWs.12, 13 and 14 which stands rejected
the only other evidence that is relied on to link the accused to the incident is
the alleged disclosure statements made by A2 and A5 leading to recovery of
the some weapons used in the attack. It is claimed that in a statement alleged
to have been made by A2 Sambhaji in the presence of panch witnesses PW5
(N. S. Pisal) and PW6 (A.T Dange), he admitted having concealed the axe
and a sword under a tamarind tree and the said axe and sword were
recovered by the police in the presence of these Panch witnesses. The
memorandum of the alleged statement of A2 recorded by the IO is Ex. 37
and the panchnama regarding recovery is at P37A. Both PW5 and PW6, the
alleged panch witnesses turned hostile and stated in their evidence that they
did not know A2 Sambhaji; that A2 did not give any statement before them
to the police; that Sambhaji was not even present at the police station nor did
he lead them to any spot, nor any sword or axe recovered. They denied the
contents of the panchnama and stated that even though they protested to
police that they would not sign a false panchnama, the police threatened and
obtained their signatures to the memorandum of statement and panchnama.
Similarly the prosecution alleged that A5 Shankar made a statement in the
presence of panch witnesses PWs.7 and 8 (S. J. More ad M. H. More) that he
had kept concealed an axe and a sword beneath bamboo shrubs and that he
took them to that place and the said articles were recovered in the presence
of the said Panch witnesses; the statement of A5 was recorded in the form of
a memorandum (Ex. 40) and the articles recovered from the place of
concealment by A5 were seized under panchnama (Ex. P-40A). But PW7
and PW8 turned hostile and stated that they did not know A5 and he did not
make any statement before them, that he did not lead them to any place, nor
was the axe and bamboo stick recovered and seized by the police in their
presence. They stated that they had signed Ex.40 and 40A at the instance of
police. Therefore the entire evidence regarding recovery of weapons at the
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instance of the accused 2 and 5 will have to be rejected. Similarly, the
recovery of a stick in front of the house of A1 is also not proved as the panch
witnesses (PWs. 3 & 4 - S.L. Deshmukh and P.D. Marathe) denied such
recovery.
12. We may next consider whether the evidence about Vilas, Ganpat,
Putlabai and Ananda being assaulted and injured by the accused is
established by reliable evidence.
12.1) Insofar as Vilas (PW9) is concerned, we have noticed that in the
statement to the police (FIR) Vilas is alleged to have stated that A1 gave two
blows with a sword on his hand and head and A2 hit him with a stick. But in
his examination-in-chief he stated that as he neared his house, someone hit
him on his head and he fell on the ground unconscious and regained
consciousness only in the Krishna hospital. He was treated as hostile and
cross examined by the PP. He clearly denied the suggestion that A1 come
behind him and gave a blow of sword on his head and right hand, as also the
suggestion that A2 gave him a stick blow. He also stated that he did not
make statement to the police, naming the accused.
12.2) The evidence of Putlabai (PW13) about the attack on her is very short.
In examination chief she stated that ’A5 Shankar Jadhav assaulted me near
right eye with an axe and I received injury on that part.’ In cross examination
she stated ’someone hit me near my right eye with an axe and I received
injury and I fell unconscious.’ Her husand Ganpat stated that his wife
Putlabai was assaulted by accused but does not name anyone. He admitted
that he did not tell the police as to who assaulted his wife when his statement
was recorded. On the other hand PW14 Ananda stated that when his mother
Putlabai came out of the house A4 Mohan assaulted his mother near her
right eye. Thus as far as the attack on Putlabai is concerned, PW9 Vilas does
not say anything. PW12 Ganpat does not say who assaulted her, Putlabai
herself says that A5 Shankar assaulted her near the eye with an axe but in
cross examination says "someone" assaulted her with an axe near her eye,
and her son Ananda says that A4 Mohan assaulted her with an axe near the
eye. Therefore it is clear that the evidence as to who caused injury to
Putlabai is also wholly unreliable.
12.3) Ananda PW14 stated in his examination in chief that A5 Shankar
assaulted him by giving an axe blow (with butt’s end). Ganpat said he did
not see who attacked his son Ananda. Putlabai says in her evidence that her
son Ananda was attacked by A6 Pralhad. Thus there is a clear variation as to
who attacked Ananda. While Ananda says that he was attacked by A5
Shankar with an axe, his mother says that Ananda was attacked with an axe
by A6 Pralhad. Thus here again the evidence in regard to as to who attacked
Ananda, is also totally unreliable.
12.4) Ganpat stated in his examination in chief that A1 Prabhakar gave a
sword blow on his head and another blow on his right cheek. His wife
Putlabai also says A1 assaulted her husband with sword. Ganpat said that A4
Mohan and A5 Shankar gave him axe blows, but his wife Putlabai says A5
Shankar and A6 Pralhad assaulted her husband with axes. On the other hand
Ananda PW14 says that Pralhad A6 was unarmed and A1 Prabhakar
assaulted his father. Therefore the only evidence without any contradiction
is about A1 attacking Ganpat with a sword. There is no reliable evidence
about A4 or A5 or A6 or any other accused assaulting Ganpat.
13. In other words, as far as A2 to A6 are concerned, there is absolutely
no reliable evidence to show that they assaulted or caused injuries to either
the deceased Shivaji or any of his family members namely PWs.9, 12, 13
and 14. There is no acceptable evidence that all or any of them with common
intent assaulted Shivaji or his family members. Their presence at the site of
incident is doubtful. We have already found PWs. 12, 13 and 14 made an
effort to falsely involve A2 to A6 in the incident.
14. In view of the foregoing, we find that the High Court was not justified
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in reversing the acquittal by the trial court. Accordingly, we allow this
appeal, set aside the conviction and sentence of appellants and restore the
trial court judgment acquitting the appellants. The appellants who are in jail,
shall be set forth to liberty forthwith.