Bombay High Court
State vs Mahadeo Dnyanoba Zurale & Ors. Vs ... on 18 April, 2018
Author: Prakash D. Naik
Bench: S. C. Dharmadhikari, Prakash D. Naik
1 Cr-Apeal-591-95-w-Rev-235-95.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 591 OF 1995
The State of Maharashtra ... Appellant
(Orig.Complainant)
Versus
1. Mahadeo Dnyanoba Zurale
2. Hanmant Ramchandra Sontakke
3. Tanaji Jagannath Bandelkar
4. Bhagwan Babu Ghule
5. Pandurang Durga Gaikwad
6. Namdeo Dnyanoba Zurale
7. Tukaram Dnyanoba Zurale
8. Balu Dnyanoba Zurale
All R/o. Vataphali, Tal. Pandharpur
Dist. Solapur ... Respondents
(Orig. Accused)
WITH
CRIMINAL REVISION APPLICATION NO. 235 OF 1995
Shivaji Krishna Chavan
Aged about 34 years, Occup:Agriculturist,
R/o. Vatphali, Tal. Malshiras, ... Petitioner
Dist. Solapur (Original Complainant)
Versus
1) Mahadeo Dnyanoba Zurale
Aged about 27 years,
Occup: Agriculturist,
2) Hanmant Ramchandra Sontakke
Aged about 25 years, Occup: Agri.,
Shridhar Sutar 1 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
2 Cr-Apeal-591-95-w-Rev-235-95.doc
3) Tanaji Jagannath Bandalkar
Aged about 30 years,
Occup: Agriculturist,
4) Bhagwan Babu Ghule
Aged about 25 years,
Occup: Agriculturist,
5) Pandurang Durga Gaikwad
Aged about 26 years,
Occup: Agriculturist,
6) Namdeo Dnyanoba Zurale
Aged about 37 years,
Occup: Agriculturist,
7) Tukaram Dnyanoba Zurale
Aged about 40 years,
Occup: Agriculturist,
8) Balu Dnyanoba Zurale
Aged about 28 years,
Occup: Agriculturist.
1 to 8 all are Resident of ...Respondents
Village Vatphali, Tal: Malshiras, (Original Accused
Dist: Solapur. No. 1 to 8)
9) The State of Maharashtra.
.....
Mr. J.P. Yagnik Asstt. Public Prosecutor for Appellant (in appeal).
Mr. Sushil Inamdar i/b K.B. Sonwalkar for Applicant in (Revn.).
Mr. Rajiv Patil Senior Advocate a/w Ramdas Hake Patil for
Respondent Nos. 2, 3 and 4.
Mr. Sanjeev P. Kadam for Respondent Nos. 5 to 8.
Mr. Vishwajit P. Sawant alongwith Prabhakar Jadhav for
Respondent Nos. 1 to 8 in Revision.
.....
Shridhar Sutar 2 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
3 Cr-Apeal-591-95-w-Rev-235-95.doc
CORAM : S. C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
RESERVED ON : 23rd MARCH, 2018
PRONOUNCED ON : 18 APRIL, 2018
JUDGMENT [ Per : PRAKASH D. NAIK, J.]:
1. The appellant-State has preferred this appeal under
Section 378(1) of the Code of Criminal Procedure, 1973 against
the Judgment and order of acquittal passed by the Additional
Sessions Judge, Pandharpur, in Sessions Case No. 110 of 1994 on
25/07/1995. The Criminal Revision Application has been
preferred by the original complainant who is the brother of the
deceased challenging the aforesaid Judgment and order of
acquittal.
2. The respondent No.1 - Mahadeo Dnyanoba Zurale has
expired during the pendency of this appeal. The copy of the death
certificate is produced, which is taken on record vide order dated
06/01/2018. In the said order it is also stated that in view of the
death of respondent No.1, the appeal abates as against respondent
No.1.
Shridhar Sutar 3 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
4 Cr-Apeal-591-95-w-Rev-235-95.doc
3. The respondents were tried for the offences punishable
under Sections 147, 148, 302 read with Section 149 of the Indian
Penal Code and Section 37(1) of the Bombay Police Act, 1951 and
Section 212 read with Section 34 of the Indian Penal Code.
4. The brief facts of the prosecution case are as under:
(a) The complainant Shivaji Krishna Chavan is a resident
of village Vatphali, Tq. Malshiras. He was residing at his
vasti (farm house) at village Vatphali. His brothers Hiralal
Chavan and Tanaji Chavan (deceased) were also residing in
the said village along with their family members.
(b) The complainant sells milk to dairy. The accused
Namdeo Zurale (accused No.6) was the Chairman of
Dharmavir Milk Dairy. Accused No.6 and others had
assaulted the complainant earlier and caused hurt to him
since he did not sell milk to Dharmvir Dairy. Since then the
relations between the accused and the complainant were
strained. The accused were also suspecting that Tanaji
Chavan was giving information to the police against them.
Shridhar Sutar 4 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
5 Cr-Apeal-591-95-w-Rev-235-95.doc
(c) On 14/07/1994 the accused had formed an unlawful
assembly, they were armed with weapons like swords, axes
and stick. Tanaji Chavan was supposed to take his nephew
Bapu Hiralal Chavan to Akluj for treatment. Tanaji had
asked Bapu to wait at the road and he proceeded to bring
his motor-bike which was parked near the poultry farm of
Namdeo Wagh.
(d) The accused were armed with deadly weapons and in
prosecution of common object of their unlawful assembly
assaulted Tanaji by inflicting blows of weapons on him.
Tanaji had raised cries to save him. On hearing the same,
the complainant reached the spot. The accused threatened
him not to come forward. The brother of the complainant
Hiralal followed him to the spot. The accused then left the
spot along with weapons. Tanaji Chavan died at the spot.
(e) The police conducted investigation and filed charge-
sheet against the respondents accused.
Shridhar Sutar 5 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
6 Cr-Apeal-591-95-w-Rev-235-95.doc
5. The accused were tried before the Court of Additional
Sessions Judge, Pandharpur. Charge was framed on 08/06/1995
for the offence punishable under Sections 147, 148, 302 read with
149 of the Indian Penal Code and Section 37(1) read with Section
135 of the Bombay Police Act and Section 212 r/w 34 IPC. The
prosecution examined 18 witnesses in support of its case. PW
No.4, PW No.5 and PW No.6 are the allegedly eye witnesses to the
incident. On completing the evidence of witnesses, the defence
examined two defence witnesses. The statement of the accused
were recorded under Section 313 of the Code of Criminal
Procedure. For the reasons stated in the impugned judgment, the
accused Nos. 1 to 8 were acquitted of the said offences.
6. The State and the original complainant is aggrieved by
the judgment and order of acquittal and therefore, approached
this Court by preferring the aforesaid appeal and the revision
application.
7. We have to examine whether the impugned judgment
of acquittal recorded by the Trial Court suffers from any legal
infirmity or is based upon erroneous appreciation of evidence.
Shridhar Sutar 6 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
7 Cr-Apeal-591-95-w-Rev-235-95.doc
Before adverting to the merits of the case in hand, the broad
principles which may be taken into consideration by the appellate
Court while dealing with the appeal against acquittal can be
analysed. In several decisions of the Hon'ble Supreme Court, the
law relating to exercise of the powers under Section 378 of the
Code of Criminal Procedure has been summarised. The judgment
of acquittal has the obvious consequence of granting freedom to
the accused. The consistent view of the Court is that unless the
judgment in appeal is contrary to evidence, palpably erroneous or
a view which could not have been taken by the Court of
competent jurisdiction, keeping in view the settled canons of
criminal jurisprudence, the appellate Court shall be reluctant to
interfere with such judgment of acquittal. It is also held in several
decisions that the penal laws in India are primarily based upon
certain fundamental procedural values, which are right to fair trial
and presumption of innocence. A person is presumed to be
innocent till proven guilty and once held to be not guilty of a
criminal charge, he enjoys the benefit of such presumption which
could be interfered with only for valid and proper reasons.
Wherever there is perversity on facts and/or law appearing in the
Shridhar Sutar 7 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
8 Cr-Apeal-591-95-w-Rev-235-95.doc
judgment, the appellate Court would be within its jurisdiction to
interfere with the judgment of acquittal, but otherwise such
interference is not called for. There is no embargo on the appellate
Court reviewing the evidence upon which an order of acquittal is
based. There is no absolute restriction in law to review and re-
look the entire evidence, on which the order of acquittal is
founded. If, upon scrutiny, the appellate Court finds that the
decision of lower Court is based on erroneous view and against
the settled position of law, than the said order of acquittal should
be set aside. We have to examine whether the impugned judgment
of acquittal suffers from such infirmity.
8. We may now proceed to discuss the merits of the case
in hand. The trial Court after analysing the evidence on record
came to the conclusion that the prosecution story is not free from
suspicion. The Court appreciated the evidence of eye witnesses
and disbelieved the same for the reasons stated therein. The Trial
Court felt that the evidence of eye witnesses does not appear to be
consistent and reliable. The evidence of witnesses suffers from
serious infirmities, their testimonies are suspicious and after
thought. The deposition of eye witnesses and the medical evidence
Shridhar Sutar 8 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
9 Cr-Apeal-591-95-w-Rev-235-95.doc
is contradictory. The Trial Court has taken into consideration
several factors for disbelieving the prosecution case.
9. The prosecution is primarily relying upon the evidence
of four witnesses viz; PW No.4 - Shivaji Krishna Chavan
(complainant), PW No.5-Bapu Hiralal Chavan, PW No.6-Hiralal
Krishna Chavan and PW No.7-Changdeo Tukaram Gaikwad. PW
Nos. 4, 5 and 6 were examined as eye witnesses to the incident.
PW No.4 has lodged the First Information Report. He is the
brother of the deceased. PW No.5 is the nephew of the deceased
and PW No.6 is also the brother of the deceased. PW No.7 is the
resident of Malshiras who has purportedly seen the accused with
weapons at the relevant time.
10. PW No.4 has deposed that accused Tukaram Zurale is
the Chairman of Dharmavir Milk Society. Four years ago, Tukaram
Zurale (accused No.7) and one Laxman Zurale had assaulted him
since he was not selling milk to Dharmavir Milk Society. He had
lodged the complaint, however, the police had not taken
cognizance of the same and hence, he had made complaint to
various authorities and since then he is not in good terms with the
Shridhar Sutar 9 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
10 Cr-Apeal-591-95-w-Rev-235-95.doc
accused persons. On 14/07/1994 he along with Tanaji (deceased)
and Bapu (PW No.5) were going to fetch water from hand pump.
Tanaji told him that he is going to Akluj as Bapu has to be
injected. Tanaji then went towards Malshiras to Akluj road for
going to Akluj. He was accompanied by Bapu. He was at the water
hand pump and heard the voice of Tanaji shouting "Aai Melo
Melo". He, then rushed towards the road. Accused No.1, accused
No.6, accused No.3, accused No.2, accused No.4 and accused No.5
were standing to the South of the road at a distance of 10 to 15
feet. Accused No.1 and accused No.6 were inflicting blows of
swords to Tanaji. They had encircled around him. Accused
Bhagwan and Pandurang were inflicting axe blows to Tanaji.
Accused Tanaji Bandalkar had inflicted stick blows to Tanaji.
Tanaji was lying on the ground and was facing upwards. He was
at the distance of 50 feet from the spot. Bapu was also at the
distance of 50 feet from the spot. The accused threatened him and
told not to come forward. Due to threat he did not move. After
assaulting the deceased, the accused went towards Zurale vasti.
Hiralal (PW No.6) also came to the spot. Tanaji told him that he
was assaulted by the accused as he was giving information to the
Shridhar Sutar 10 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
11 Cr-Apeal-591-95-w-Rev-235-95.doc
police against them. Tanaji's left leg was separated and right leg
was also cut. There were blows on his right thigh. There were
injuries over the left and right wrists of Tanaji. PW No.4 lodged
the First Information Report. In the cross examination, he has
deposed that the spot is situated on the left side of the road of
Akluj to Malshiras. The houses of some of the persons are situated
on the right of the said road at a distance of 200 to 300 feet. The
house of one Bhivaji Kharat is also situated near the spot. He also
referred to the houses of some other persons situated near the
place of incident. He also deposed that there are two groups at
village Vatphali and one group is led by accused No.6 and other is
led by Advocate Ghule. The accused belonging to the group of
accused No.6. Advocate Ghule resides at village Vatphali. He also
stated that a case is filed against him by his neighbour wherein he
was impleaded as accused. One Narayan, Yellappa and Maruti
Nandiwale were the complainant. Nandiwale had also filed a
complaint against Tanaji (deceased). Nandiwales are dangerous
people. He and his nephew were present at the spot where the
incident took place and his brother Hira had followed them. They
did not call Police Patil or Sarpanch of village Vatphali. He denied
Shridhar Sutar 11 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
12 Cr-Apeal-591-95-w-Rev-235-95.doc
the suggestion that Nandiwales were also threatening to kill his
brother and that on the night of 13 th July his brother had gone out
on his usual night errands.
11. PW No.5 Bapu Chavan is the nephew of deceased. He
is the son of PW No.6. He stated that he along with Tanaji started
at about 8.00 a.m. on the day of incident after taking meals.
Tanaji (deceased) told him to wait as he would bring motorcycle
from the poultry farm of Wagh. Accused Nos. 1 to 6 came from
the side of poultry farm. Accused Nos. 1, 2, 4, 5 and 6 were armed
with axes and accused No.3 was having stick with him. They
asked his uncle as to why he is giving information to the police.
All of them inflicted blows on the deceased with weapons. The
deceased and the witnesses raised cries to save them. PW No.4
then came to the spot who was threatened by the accused and
thereafter, PW No.6 also reached the spot. In the meanwhile, one
Changedeo Gaikwad (PW No.7) also came at the spot. He further
deposed that the distance between the hand pump and the place
where he was standing was 100 feet. In the cross-examination, he
deposed that he tend buffaloes. On a date prior to the incident
and on the date of incident he did not go to tend buffaloes. He
Shridhar Sutar 12 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
13 Cr-Apeal-591-95-w-Rev-235-95.doc
used to tend buffaloes daily till 5.00 p.m. He was not well on the
date of incident. He had stated before the police that he and his
uncle have taken meals and then started from their house.
However, he could not assign any reason as to why the said
version is not appearing in his statement. The deceased was lying
in supine condition. The accused persons encircled him and
inflictied blows. The persons from the adjoining houses did not
come out to watch the incident. He did not go to the persons from
adjoining houses to inform them about the incident nor he went to
milk dairy for informing the people about the incident. He did not
run towards vasti when his uncle was attacked. The persons from
adjoining vasti did not assemble at the spot. He stated before
police that accused Nos. 1 to 6 came from the side of poultry farm.
He informed the police that the deceased had stated that the
accused had assaulted him because he was giving information to
police and that the accused fell the deceased on the ground but
the said facts are not appearing in his statement recorded by the
police. He also stated that PW No.7 had come to the spot and that
a jeep had come from Malshiras and his father and uncle had gone
in that jeep, but the same version is not appearing in his statement
Shridhar Sutar 13 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:18 :::
14 Cr-Apeal-591-95-w-Rev-235-95.doc
recorded by police. PW No.6 is the brother of deceased. He heard
Tanaji's voice and rushed to the spot. He was at a distance of 50
feet from the spot. Tanaji was lying towards the poultry. Accused
were inflicting blows of swords and axes to Tanaji. The accused
threatened the witnesses not to come forward at the time of
assault. They approached Tanaji after the accused left the scene of
offence. The injured was taken to the hospital. He further deposed
that the families of washerman are residing at their vasti along
with their children. The vasti is at the distance of 50 feet from the
hand pump. The distance between the poultry farm and the hand
pump is about 200 to 250 feet. One of the person from
Washerman's family had followed him to the spot. The incident
lasted for about 5 minutes. He and his brother did not intervene
and separate the accused persons. They did not go to the dairy
farm to inform the people as no one was there. He did not go to
the Police-Patil or the Sarpanch. PW No.7 is purportedly the
witness who had seen the accused around with weapons. He
stated that he along with Chandrakant Jagtap were going to
Malshiras to meet his advocate. They had reached the dairy at
village Vatphali, he noticed that accused Nos. 1 to 6 were going
Shridhar Sutar 14 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
15 Cr-Apeal-591-95-w-Rev-235-95.doc
towards East. They were holding weapons in their hands. He then
noticed that Tanaji was assaulted and was in injured condition.
He, then proceeded to meet his advocate. He also deposed that his
son is a friend of the deceased. On the relevant day, there was no
date in the matter which is pending in the Court. He did not take
injured to the hospital and did not inform the police about the
incident. His statement was recorded on 23/08/1994.
12. PW No.1 Arun Lambture had drawn the map of the
spot. PW No.2 Ramdas Waghmode was called by the police to act
as a panch witness on 14/07/1994. He acted as a panch to the
inquest panchnama. PW No.3 Laxman Pawar was also called to
act as a panch. He was called near poultry of Namdeo Wagh. He
had seen a pair of chappal and a bicycle at the spot as well as
blood lying at the spot. The police seized pair of chappal, bicycle
and earth stained with blood. PW No.8 Dr. Swapnil Lale is
Medical Officer at Primary Health Centre, Akluj. He conducted the
post-mortem examination on 14/07/1994 at 12.30 noon which
was over by 1.30 p.m. On external examination of the deceased,
he noticed about 25 injuries. All the injuries were contesed
lacerated wounds. He also noticed internal injuries on the person
Shridhar Sutar 15 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
16 Cr-Apeal-591-95-w-Rev-235-95.doc
of the deceased, such as fracture on the right radius etc. He also
deposed that the stomach of the deceased was containing semi
digested food of 400 cc. The food was consumed by the deceased
three hours prior to his death. He also deposed that the injuries
could be caused by the weapons allegedly used in the crime.
Injury caused by hard and blunt object would cause contusion.
Injury by hard sharp object would cause incised wound. A pointed
rough stone can cause contused lacerated wound. The post-
mortem report was exhibited in evidence at his instance. PW No.9
Suresh Patil was serving at Akluj Police station at the relevant
time. He referred to the recovery of clothes of the deceased. PW
No.10 Rajendra Savant was serving at Akluj Police station as
Police Constable. He was directed to take muddemal property to
Chemical Analyser at Pune. He received the same and deposited in
the office of Chemical Analyser on 29/09/1994. PW No.11
Madhukar Bhosale acted as panch for various panchnamas. He did
not read the panchnama and could not depose about its contents.
He was called for panchnama on 15/07/1994, 16/07/1994,
09/09/1994 and 10/09/1994. He was declared hostile by the
prosecution and was cross-examined by learned APP. He acted as
Shridhar Sutar 16 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
17 Cr-Apeal-591-95-w-Rev-235-95.doc
panch for recovery of clothes and the weapons. He stated that on
07/07/1994 the people from complainant's group had taken him
to the police station and had asked him to file complaint. He had
lodged the complaint as he was pressurised by the complainant's
group. PW No.12 Ratan Kambale acted as panch. He stated that
police have obtained his signature on a plain paper. He was
declared hostile by the prosecution. PW No.13 Dr. Gautam Jagtap
was working as a Medical Superintendent at Rural Hospital, Akluj.
He had examined the accused persons and collected their blood
samples and handed over the same to the concerned constable
with a letter addressed to Chemical Analyser. He obtained the
report from Chemical Analyser. The blood group of Tanaji
Bandalkar (accused No.3) is 'A' and the blood group of other
accused could not be determined. He placed on record the
Chemical Analyser report vide Exhibit Nos. 54 and 56. PW No.14
Rahimbaksha Shaikh was serving at Akluj Police station. He
handed over muddemal articles to A.P.I. Jadhav on 19/07/1994.
PW No.15 Shahuraj Dalvi was serving at Akluj Police station on
11/07/1994. He referred to the order of District Magistrate,
Solapur, which was promulgated under Section 37(A). PW No.16
Shridhar Sutar 17 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
18 Cr-Apeal-591-95-w-Rev-235-95.doc
Vithal Jadhav was attached to Akluj Police station. He stated that
PW No.5 had approached him and informed that six persons had
murdered his brother. He, then registered the offence and
proceeded to the spot. The First Information Report is signed by
the complainant. The offences were registered. He had drawn the
inquest panchnama. He had investigated the crime. He arrested
the accused. He recorded the statement of the witnesses. The
omissions which were brought on record through the cross
examination of the witnesses were proved through him. He did
not record the statement of any family members. Nothing was
found in the search of the house of Mahadeo Zurale. He produced
the accused before the Court on 16/07/1994 for obtaining their
remand. It is mentioned in the remand papers that Bapu Chavan
had gone to Vatphali to bring clothes. The theory that Bapu
Chavan was going to Vatphali for bringing clothes finds place in
the remand papers dated 16/07/1994, 18/07/1994, 21/07/1994,
23/07/1994 and 29/07/1994. It is nowhere mentioned in the
remand papers that Bapu was indisposed and therefore, Bapu and
Tanaji were going to Akluj. PW No.17 Dr. Rajesh Gotekar was
serving at Medical Officer at Rural Hospital, Akluj. He obtained
Shridhar Sutar 18 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
19 Cr-Apeal-591-95-w-Rev-235-95.doc
the blood sample of the accused No.6 and handed over the same
for Chemical Analysis. PW No.18 Gopalkrishna Bhalerao was
serving at Akluj Police station. He conducted investigation. He
obtained blood sample of the accused. He had recorded the
statement of Changdeo Gaikwad (PW No.7). He also recorded the
statement of other witnesses.
13. The defence had examined DW No.1 Vilas Patil. He
stated that he knows accused No.6 Namdeo Zurale. He also knows
Vithoba Pawar. On 13/07/1994 the accused No.6 had visited him.
The accused was at his residence on 13/07/1994 and on
14/07/1994. They proceeded to Chikhalgothan on a motorcycle.
They reached at the said place at about 9.00 a.m. for attending
the marriage. The time of the marriage was 12.35 p.m. They
returned to the village in the evening and the said accused was at
his place for two days. Thereafter, they returned to Jyotiba. He
was cross examined at the instance of the prosecution. The
defence also examined Vithoba Pawar as DW No.2. He stated that
he knows accused Namdeo Zurale. The marriage of his nephew
was to be solemnised on 14/07/1994. Accused Namdeo and DW
No.1 Vilas had come to his place for attending the marriage. Both
Shridhar Sutar 19 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
20 Cr-Apeal-591-95-w-Rev-235-95.doc
these witnesses were examined at the instance of accused Namdeo
Zurale to establish alibi.
14. The prosecution has brought on record the Chemical
Analyser report dated 06/02/1995 vide Exhibit-102 and Chemical
Analyser report dated 11/11/1994 vide Exhibit-103. The results of
Chemical Analysis reflected in Exhibit-102, indicates that the earth
Exhibit-1 is mixed with blood. Exhibit Nos. 3, 4 and 6 were soaked
with blood. The weapon at Exhibit Nos. 9 and 10 (axes) were
stained with blood. The sword at Exhibit Nos. 11, 12 and 26 were
stained with blood. The clothes at Exhibit Nos. 14, 17 and 20 have
moderate number of blood stains. The other clothes at Exhibit
Nos.18, 19, 21, 22, 23, 24 and 25 had blood stains. No blood
stains could be detected on earth Exhibit-2 and bamboo stick
Exhibit-13. The blood detected on the Exhibits was human and the
blood detected on the clothes was 'B' group. The blood group of
the blood detected on Exhibit Nos.1, 7, 18, 24 and 25 could not be
determined as the results are inconclusive. The blood group of
Exhibit-8 (Tanaji Krishna Chavan) cannot be determined as the
results are inconclusive. The blood in file labelled as Namdeo
Zurale was of blood group 'A'. In the circumstances, there was no
Shridhar Sutar 20 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
21 Cr-Apeal-591-95-w-Rev-235-95.doc
corroborative evidence against the accused in the form of
Chemical Analyser report to establish their involvement in the
crime.
15. Learned APP Shri. Yagnik submitted that the Trial
Court has committed an error in acquitting the accused. The
judgment of the Trial Court is perverse, since the evidence on
record has not been appreciated by the Court in proper
perspective. The learned Judge has given importance to minor
discrepancies and overlooked the evidence on record. It is
submitted that the prosecution has established its case beyond all
reasonable doubt by adducing cogent evidence which was
sufficient to convict the accused. The prosecution case is based on
the evidence of three eye witnesses to the incident which ought
not to have been discarded by the Court. The said witnesses have
corroborated the prosecution case and established the
involvement of all the accused in the crime. PW Nos. 4, 5 and 6
were consistent in attributing the overt act to the accused. Their
evidence is further corroborated by PW No.7 who had seen the
accused armed with weapons while proceeding towards the place
of incident at the relevant time. He would submit that there is
Shridhar Sutar 21 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
22 Cr-Apeal-591-95-w-Rev-235-95.doc
recovery of deadly weapons having blood stains at the instance of
the accused which were used while committing the crime. The
motive for committing crime was also established. The accused
were armed with deadly weapons and have mercilessly assaulted
the deceased by inflicting blows by the weapons. The victim had
sustained several serious injuries on his person as a result of the
assault by the accused. The Trial Court has ignored the evidence
for no reason. The witnesses through their evidence had
established the presence of the accused at the scene of offence and
participation in crime. The evidence putforth by the witnesses
could not be demolished in any manner by the defence in their
cross examination. The evidence of the witnesses, more
particularly the eye witnesses to the incident inspires confidence
and the same ought to have been accepted by the Trial Court.
Although, the eye witnesses were related to deceased, their
evidence cannot be discarded on the ground that they are partisan
witnesses, more particularly, when they have given ocular account
of the crime and involvement of the accused in the said crime. All
the witnesses have attributed specific overt act to the accused.
Their presence at the scene of offence cannot be doubted. It is
Shridhar Sutar 22 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
23 Cr-Apeal-591-95-w-Rev-235-95.doc
submitted that this Court should reappreciate the evidence which
establishes the involvement of the accused in the said crime. In
the event, this Court finds that the Trial Court has overlooked the
cogent evidence on record on flimsy ground, the appellate Court
can certainly set aside the judgment of acquittal. The accused
were involved in heinous crime and their involvement was proved
by the prosecution and hence they ought to have been convicted
by the Trial Court. The appellate Court is empowered to review
the evidence upon which an order of acquittal is based. If there is
mis-carriage of justice, this Court can certainly set aside the order
of acquittal. In the present case, according to Shri. Yagnik, the
Trial Court has ignored the admissible evidence.
16. Learned Advocate Mr. Inamdar has adopted the
submissions advanced by the learned APP. It is submitted by him
that the judgment of the Trial Court is contrary to evidence on
record. Since the complainant could not prefer an appeal against
the impugned judgment of acquittal, he has invoked the revisional
jurisdiction of this Court.
Shridhar Sutar 23 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
24 Cr-Apeal-591-95-w-Rev-235-95.doc
17. Learned Senior Advocate Shri Rajiv Patil submitted
that the judgment of acquittal is based on cogent reasons which
does not warrant interference. The Trial Court appreciated the
evidence in proper perspective and has given a finding that the
prosecution has failed to establish the charge against the accused.
The three eye witnesses to the alleged incident were related to the
deceased. The oral evidence and medical evidence is contradictory
to each other. The presence of the witnesses at the place of
incident is doubtful. Their version is concocted. The alleged
motive is weak as the alleged incident of assault had occurred four
years prior to the present incident. The theory of assault due to
belief that the deceased was giving information to Police is
concocted. He further submitted that there is no perversity in the
judgment of the Trial Court. Therefore, the appellate Court should
not interfere in the order of acquittal. The evidence of eye
witnesses is not consistent with each other. Their evidence suffers
from serious infirmities like contradictions and omissions. The
time of incident as depicted by the eye witnesses is itself under the
clouds of suspicion which belies the prosecution case. The
evidence of PW Nos. 4, 5 and 6 is not inspiring confidence and
Shridhar Sutar 24 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
25 Cr-Apeal-591-95-w-Rev-235-95.doc
there is no reason to interfere in the order of acquittal. It is further
submitted that statement of PW No.7 was recorded belatedly
which creates doubt about its genuineness. The prosecution did
not examine independent witnesses. There is every possibility that
the deceased was done to death by some other persons and that
the accused are falsely implicated in the crime. There is absolutely
no evidence of whatsoever nature against the accused Nos. 7 and
8.
18. Mr. Savant, appearing for the respondents in the
revision application adopted the arguments of Shri Patil.
19. We have gone through the entire evidence. The
prosecution is strongly relying upon the evidence of PW Nos. 4, 5
and 6 who were the alleged eye witnesses to the incident. The
prosecution is also relying upon the evidence of recovery of
weapons and clothes. The incident in question had allegedly
occurred in the morning at about 8.00 a.m. PW No.4 and 6 are the
brothers of the deceased. PW No.5 is the son of PW No.6.
According to them, the accused came at the spot armed with
weapons and assaulted deceased Tanaji Chavan. Although there
Shridhar Sutar 25 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
26 Cr-Apeal-591-95-w-Rev-235-95.doc
are houses of villagers near the scene of offence, the prosecution
could not putforth any independent witness to corroborate the
version of the eye witnesses. Only alleged independent witness
who was examined by the prosecution witness PW No.7 who has
not seen the actual incident, but had seen according to him the
accused armed with weapons proceeding towards the place of
incident.
20. It is brought on record through the evidence of the
medical officer that semi-digested food is found in the stomach of
the deceased and the last meal was consumed three hours before
the death of the deceased. The defence had therefore submitted
that the incident of assault resulting in death of the deceased
could not have occurred at 8.00 a.m. on 14/07/1994 as alleged by
the prosecution. The theory of meal being consumed by the
deceased on the day of assault at 7.00 a.m. was introduced for the
first time by PW No.5. The Chemical Analyser's report does not
conclusively establish that the accused had used the alleged
weapons in commission of crime. The blood group of the deceased
was found to be inconclusive. It is also brought on record through
the evidence of the medical officer that the CLW is not possible by
Shridhar Sutar 26 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
27 Cr-Apeal-591-95-w-Rev-235-95.doc
the sharp weapon and the use of sharp weapon would in result
incised wounds. The trial Court has taken into consideration
several such infirmities and has thereby given benefit of doubt to
the accused.
21. We have minutely considered the evidence of
witnesses. PW No.4 has referred to incident of assault which had
occurred four years ago on account of not selling milk to Dharmvir
dairy. The alleged incident is not in proximity with incident of
assault dated 14/07/1994. He did not produce any evidence to
support the said fact. This motive is thereby weak and cannot be
believed. He heard cries of injured from hand pump and then
proceeded to that place. In examination in chief he stated that PW
No.6 had come to the spot. However, there is no reference to the
fact that PW No.6 was present right from beginning while the
deceased was being assaulted. He did not refer to presence of PW
No.7 Changdeo. In the cross examination he stated that he and
PW No.5 were only present at the spot. PW No.5 has deposed that
he proceeded with deceased. The sequence of event stated by him
is different than the version of PW No.4. He stated that his father
(PW No.6) had also come at place of incident. He did not state
Shridhar Sutar 27 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
28 Cr-Apeal-591-95-w-Rev-235-95.doc
whether PW No.6 was present when the incident of assault on
deceased was in progress. He referred to presence of PW No.7
after the assault which is contrary to evidence of PW No.4. The
deposition that deceased had stated that he was assaulted for
giving information to police is not reflected in his statement
before police. PW No.6 has not referred to presence of PW No.7.
He did not refer to any statement being made by deceased at the
time of assault. Thus, the instant motive to assault has not been
established by prosecution. He has referred to washermen
following him at the spot. The other witnesses has not referred to
such person being present at the place of incident. Although he
claims to be eye witness. The evidence of PW No.4 and PW No.5
does not establish that he was eye witness to assault. He is the
father of PW No.5, but he did not state that PW No.5 was not
keeping well and he proceeded with deceased to Akluj. He did not
raise cries. He did not intervene and separate accused. He and
other witnesses did not go to dairy to inform the people. He did
not go to Police Patil or Sarpanch. There are several houses near
the spot of incident, but prosecution has not brought any
independent eye witness to the alleged incident occurred at
Shridhar Sutar 28 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
29 Cr-Apeal-591-95-w-Rev-235-95.doc
around 8.00 a.m. PW No.7 is got up witness. His presence is not
referred by PW No.4 and PW No.6. His statement was recorded
belatedly. Thus, there is no consistency in the version of the
prosecution witnesses and their evidence raises enough doubt.
22. We are in agreement with the reasons assigned by the
trial Court while delivering the judgment of acquittal which can be
summarised as follows:
(a) The evidence of the eye witnesses does not appear to be
consistent and reliable.
(b) It appears from the cross examination of the investigating
officer that the remand papers upto 29/07/1994 reveal that
PW No.5 Bapu had gone to village Vatphali to bring clothes.
The said witness (PW No.16) has stated that on 16/07/1994
he had produced the accused before the judicial magistrate
for obtaining their remand and in the remand papers it was
mentioned that Bapu Chavan had gone to Vatphali to bring
clothes. The theory that PW No.5 was going to Vatphali for
bringing clothes finds place in the remand papers dated
16/07/1994, 18/07/1994, 21/07/1994, 23/07/1994 and
29/07/1994. It is nowhere mentioned in the remand papers
that PW No.5 was indisposed and that he was suppose to go
with Tanaji to Akluj for treatment.
Shridhar Sutar 29 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
30 Cr-Apeal-591-95-w-Rev-235-95.doc
(c) The FIR does not mention that PW No.5 had accompanied
Tanaji to Akluj on the relevant day. On the contrary, the FIR
mentions that PW No.5 was with the complainant (PW
No.4). Presence of PW No.5 at the place of incident is
therefore doubtful. His evidence is suspicious and cannot be
accepted.
(d) PW No.6 has stated that at the relevant time he had gone to
the house of washerman, because he was not having any
work. He heard cries of Tanaji and rushed to the spot. He
has also stated that one person from washerman's family
had followed him to the spot. Such person was not
examined by the prosecution nor the other witnesses have
referred to the presence of any other persons at the scene of
offence.
(e) The evidence of PW No.7 Changdeo also did not inspire
confidence. According to this witness, he had reached at the
spot, after the incident and prior to that he had seen the
accused armed with weapons. PW No.5 has not referred to
his presence in his statement before the police. According to
him he was accompanied by Chandrakant Jagtap and they
were suppose to meet his advocate at Malshiras and were
proceeding by motorcycle. PW Nos. 4, 5 and 6 has not
referred to the presence of Chandrakant Jagtap at the spot.
Shridhar Sutar 30 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
31 Cr-Apeal-591-95-w-Rev-235-95.doc
(f) As per the evidence of all the eye witnesses and PW No.7,
some of the accused were armed with swords. Accused
Hanmant, Pandurang and Bhagwan were armed with axes
and accused Tanaji Bandalkar was having stick with him,
whereas accused Namdeo and Mahadeo were armed with
swords. In short, accused were armed with two swords,
three axes and one stick. However, there was recovery of
three swords, two axes and one stick. The panchas to the
recovery panchnama did not support the prosecution. The
recovery of the weapons is not consistent with the oral
version of eye witnesses.
(g) The incident had taken place near a road leading from Akluj
to Malshiras. The poultry farm of Mr. Wagh, Milk dairy and
several houses situated near the spot, which is evident from
the evidence on record. The incident had occurred between
8.00 to 8.30 a.m. This is a time when most of the villagers
are present in their houses. But, curiously, none of the
persons from the said houses appear to have come to the
spot. Although, independent witnesses were available, they
were not examined by the prosecution.
(h) The evidence of the witnesses suggested that there was
animosity between the family of the deceased and the
accused. The prosecution is relying on the ocular version of
interested witnesses. In these circumstances, the possibility
of false implication of the accused cannot be ruled out.
Shridhar Sutar 31 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
32 Cr-Apeal-591-95-w-Rev-235-95.doc
(i) The evidence of eye witnesses reveal that all the accused
had inflicted blows with swords, axes and stick over the
person of the deceased. Medical evidence reveals that out of
nearly 25 injuries, 22 are contused lacerated wounds.
Taking into consideration the nature of weapons used in the
crime there could have been incised wounds and lacerated
wounds. The deceased had sustained injuries on the frontal
portion of his body as well as on the backside. However, the
witnesses had deposed that the deceased fell down and
thereafter he was inflicted with the blows by weapons.
(j) The statement of witness Changdeo Gaikwad does not
appear to be reliable since his statement was recorded by
the investigating officer on 23/08/1994 although the
alleged incident had occurred on 14/07/1994.
(k) The evidence of medical officer PW No.8 discloses that the
stomach of the deceased contained semi-digested food of
400 cc. As per the opinion of the doctor, the deceased might
have taken his last meal three hours before his death. The
postmortem examination was conducted on 14/07/1994 at
about 12.30 noon. The theory that the deceased had taken
meal at around 7.00 a.m. on 14/07/1994 was introduced by
PW No.5 for the first time. The said version was not
reflected in his statement. According to prosecution the
incident had occurred after 8.00 a.m. which is difficult to
believe in view of the opinion of doctor. The theory of the
Shridhar Sutar 32 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
33 Cr-Apeal-591-95-w-Rev-235-95.doc
attack occurring at the time alleged is therefore concocted
by the witness.
(l) There is every possibility that the incident did not occur at
the spot as alleged by the prosecution. The version of the
witnesses is falsified by the evidence of the medical officer
who conducted postmortem examination. It is for this
reason that there is no other independent eye witness to the
incident.
(m) During the cross examination of PW No.4, it was brought on
record that the neighbour of the said witness had filed a
case against him and he was accused in that case at
Malshiras. Narayan, Yellappa and Maruti Nandiwale were
the complainant. Nandiwale had also filed a complaint
against Tanaji (deceased). Nandiwales are dangerous
persons. It was also brought on record in cross examination
that there are two groups at village Vatphali and one group
is led by Namdeo Zurale and the other by Advocate Ghule.
The accused belong to Namdeo Zurale group.
(n) The motive for the crime is weak. The alleged incident of
assaulting the complainant had occurred two years prior to
the present incident. The witnesses have not produced any
evidence to establish the said motive.
(o) The FIR was forwarded to the court belatedly. Although, the
incident had taken place on 14/07/1994. The FIR was
Shridhar Sutar 33 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
34 Cr-Apeal-591-95-w-Rev-235-95.doc
forwarded to the nearest Magistrate on 18/07/1994. The
delay in sending the FIR is not explained which creates
suspicion about the prosecution case. The prosecution story
is not free from suspicion and the evidence of witnesses is
not consistent with each other and the same is not
corroborated by medical officer. The prosecution has failed
in establishing the guilt of the accused beyond reasonable
doubt.
(p) The prosecution has failed to establish that the accused had
violated the prohibitory order of District Magistrate Solapur
under Section 37(1) of Bombay Police Act.
(q) Except the evidence of investigating officer, there is no
evidence to connect accused Nos. 7 and 8 with the crime.
There is no independent witness examined by the
prosecution to establish that the accused Nos. 7 and 8 had
harboured accused No.1 Namdeo Zurale knowing that he
had committed the offence of murder.
(r) Chemical Analyser report does not support the prosecution
case in any manner.
(s) The blood group of the deceased could not be determined.
The blood group of accused No.2 was inconclusive and the
blood group of accused No.3 was 'A'. Similarly, the blood
group of accused Nos. 1 and 4 was inconclusive.
Shridhar Sutar 34 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
35 Cr-Apeal-591-95-w-Rev-235-95.doc
23. In these circumstances, it cannot be said that the
prosecution has been able to establish its case. There is no reason
to interfere with the order passed by the Trial Court. In the case of
Sheo Swarup Vs. King Emperor reported in AIR 1934 PC 227,
the Court had highlighted the approach of the appellate Court
hearing the appeal against acquittal by observing that the
appellate Court will always give proper weight and consideration
to matters such as; (1) the views of the trial Court on the
credibility of the witnesses; (2) the presumption of innocence in
favour of the accused, a presumption certainly not weakened by
the fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact arrived at by a Judge
who had the advantage of seeing the witnesses.
24. In another decision in the case of Surajpal Singh Vs. State,
AIR 1952 SC 52, while dealing with the powers of the High Court
in an appeal against acquittal it was observed that the High Court
has full power to review the evidence upon which the order of
acquittal was founded, but it is equally well settled that the
presumption of innocence of the accused is further reinforced by
Shridhar Sutar 35 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
36 Cr-Apeal-591-95-w-Rev-235-95.doc
his acquittal by the trial court, and the findings of the trial court
which had the advantage of seeing the witness and hearing their
evidence can be reversed only for very substantial and compelling
reasons.
25. The court has consistently held that in dealing with the
appeals against acquittal the court must bear in mind that there is
presumption of innocence in favour of an accused person and such
presumption is strengthened by the order of acquittal passed by
the trial Court in his favour. Although the powers of the appellate
Court in considering the appeals against acquittal are as extensive
as its powers in appeals against conviction but the appellate court
is generally loath in disturbing the finding of fact recorded by the
trial Court. It is so because the trial Court had an advantage of
seeing the demeanour of the witnesses. Unless the conclusions
reached by the trial Court are palpably wrong or based on
erroneous view of the law or if such conclusions are allowed to
stand, they are likely to result in grave injustice, the reluctance on
the part of the appellate Court in interfering with such conclusions
is fully justified. Merely because the appellate Court on
reappreciation and reevaluation of the evidence is inclined to take
Shridhar Sutar 36 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
37 Cr-Apeal-591-95-w-Rev-235-95.doc
a different view, interference with the judgment of acquittal is not
justified if the view taken by the trial Court is a possible view.
26. In the case of State of Rajasthan Vs. Shera Ram @ Vishnu
Dutta reported in 2012 (1) SCC 602, the Apex Court has laid
down guidelines with regards to the parameters to b e considered
for dealing with the appeal against acquittal. In the said decision it
was observed that it is a settled principle of criminal jurisprudence
that the burden of proof lies on the prosecution and it has to
prove a charge beyond reasonable doubt. The presumption of
innocence and the right to fair trial are twin safeguards available
to the accused under our criminal justice system. There is no
embargo on the Appellate Court reviewing the evidence upon
which an order of acquittal is based. Generally, such order shall
not be interfered. If two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the
accused should be adopted. The miscarriage of justice which may
arise from acquittal is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is
cast upon the appellate Court to reappreciate the evidence.
Shridhar Sutar 37 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::
38 Cr-Apeal-591-95-w-Rev-235-95.doc
27. In the light of the aforesaid principles concerning the
approach of the appellate Court in dealing with the order of
acquittal and applying the same to the facts of the present case,
we do not find that there is any perversity in the view taken by the
trial Court which is a possible view. In the circumstances, we do
not find any merit in the appeal preferred by the State against
order of acquittal as well as the revision application preferred by
the original complainant against the said judgment of acquittal
and both are required to be dismissed. Hence, we pass the
following order.
O R D E R
Criminal Appeal No. 591 of 1995 and Criminal Revision Application No. 235 of 1995 are dismissed.
( PRAKASH D. NAIK, J.) ( S. C. DHARMADHIKARI, J.)
Shridhar Sutar 38 of 38
::: Uploaded on - 18/04/2018 ::: Downloaded on - 19/04/2018 02:31:19 :::