SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.896-897 of 2005

Sunil Dattatraya Vaskar  & Another        ...Appellants

Vs.

State of Maharashtra …Respondent

J U D G M E N T  

ALTAMAS KABIR, J.

1. These  appeals  have  been  filed  against  the

judgment  and  order  dated  4.5.2005  passed  by

the  Bombay  High  Court  in  Criminal  Appeal

No.921 of 1988, which was heard  along with

Criminal Revision Application No.316 of 1988,

reversing the judgment and order of acquittal

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passed by the Sessions Judge, Raigad, Alibag,

in  Sessions  Case  No.  16  of  1987,  under

Sections 302 and 307/34 IPC and Section 25(1)

(a) of the Arms Act, convicting and sentencing

the appellants to life imprisonment.

2. Criminal Appeal No.921 of 1988 was filed by

the  State  of  Maharashtra  against  the

appellants herein and two others, against the

judgment  of  the  Sessions  Judge,  Raigad,

Alibag,  acquitting  all  the  four  accused

persons of the charges framed against them as

indicated hereinabove.  

3. The  Criminal  Revision  Application  NO.316  of

1988  was  filed  by  the  original  complainant

against  the  same  judgment  of  acquittal  and

both were taken up by the Bombay High Court

together and disposed of by a common judgment.

Two  of  the  accused  persons,  namely,  Dattu

alias  Dattatraya  Kana  Vaskar   and  Ganesh

Govind  Patil,  accused  Nos.  1  and  4,

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respectively, died during the pendency of the

appeal before the High Court and an order of

abatement  was  recorded  against  them  and  the

appeal was continued against Sunil Dattatraya

Vaskar  and  Rohidas  Dattatraya  Vaskar,  the

accused Nos.2 and 3  who are the appellants

before this  Court.

4.  According   to  the  prosecution  case,   on

26.10.1986 the deceased  Janu was  standing in

the courtyard of his house which is situated

just  opposite  the  house  of  the  accused

persons. The accused No.1 was the father of

accused Nos. 2 and 3, the appellants herein,

while the accused No.4 was a stranger to the

family of the accused Nos. 1 to 3. According

to  the  prosecution  all  the  accused  persons

were standing in the gallery of their house

opposite to the courtyard of the house of the

deceased  and  at  about  4  p.m.  they  started

shooting from their fire-arms at the deceased.

During the shooting, PW 3 Atmaram Patil, son

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of the deceased,  was standing near the foot-

step of his house and called his father when

as  a  result  of  the  firing  Janu  sustained

pellet injuries and fell. Atmaram  ran to help

him, but he also suffered  pellet injuries in

the firing by all the accused persons.  The

other  witnesses  who  were  present  in  the

courtyard  at  that  time  also  suffered  pellet

injuries.   PW  2  Keshav,  the  complainant  in

this case, was also present in the courtyard

when the incident occurred  and he was also

injured.  He  was   lifted  and  taken  to  his

house.   The complainant thereafter proceeded

to Panvel Police Station  from Pargaon village

and lodged the complaint in the Police Station

and being himself injured he was sent to the

hospital  for  treatment.  Pursuant  to  the

complaint  made  by  PW  2,  the  case  was

registered as CR No.575 of 1986 under Section

302, 307/34 IPC and Section 25(1)(a) of the

Arms Act.

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5. As indicated hereinbefore, charges were framed

against  all  the  accused  persons  that  in

furtherance of their common   intention they

had committed the murder of Janu  Ganu Patil

by   firing  gun  shots  at  him  when   he  was

standing in the courtyard  of his house and

several other persons were also injured.

6.  After considering the evidence led on behalf

of the prosecution the Sessions Judge by his

judgment  dated  11.7.1988  acquitted  all  the

accused  persons  upon  holding  that  the

prosecution  had  failed  to  establish  the

charges  against  the  accused  persons  against

all  reasonable  doubt  and  that  since  the

probability of the defence version  could not

be totally ruled out, they were required to be

given the benefit of doubt in the case.

7. The State of Maharashtra and the complainant

filed  the  appeal  and  revision  as  mentioned

hereinbefore  and  both  were  taken  up  for

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hearing  by  the  High  Court  together  and

disposed of by a common judgment.

8. Upon re-examining the evidence the High Court

held  that  the  trial  court  had  erroneously

placed a good deal of emphasis on a statement

made  by  the  Medical  Officer  during  cross

examination that injury No.1 sustained by the

deceased  could  be  caused  by  ground  level

firing towards him, while in his examination-

in-chief   he  had  stated  that  such  injuries

were possible  if the gun-shots  were fired at

an angle of 45 degrees which would indicate

that the shots had been fired from a higher

level than  if the deceased was standing on

ground level which fitted in with the story of

the prosecution that the guns had been fired

from the gallery of the house of the accused

Nos.1  to  3.  The  High  Court  disbelieved  the

defence  suggestion  that  the   deceased  must

have been lying down in the cattle-shed  since

a good deal of blood was found on the floor of

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the  cattle-shed,  which  suggested  that  the

deceased received injuries  while he was in a

sleeping position in the cattle-shed and not

standing  in  the  courtyard.  According  to  the

High Court  the blood in the cattle-shed was

on  account  of  the  fact  that  after  he  had

sustained injuries, his family members carried

the  deceased  Janu  to  the   cattle-shed  in  a

bleeding condition as a result of which there

was a good deal of blood found in the cattle-

shed.

9. The High Court also observed that the trial

Judge  had  wrongly  discarded  the  evidence  of

the  eye-witnesses  on   the  sole  ground  that

they  being  related  to  the  deceased  were

interested  witnesses,  while  being  family

members, it was but natural that they should

be on the spot and hence natural witnesses to

the incident.  In the aforesaid circumstances,

the  High  Court  allowed  the  appeal  and  the

Revision filed by the State of Maharashtra and

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the complainant  and reversed the judgment of

acquittal  passed  by  the  trial  Judge  and

convicted the appellants herein of the charges

framed   against  them  and  sentenced  them  to

life imprisonment.  

10. It  is  the  said  judgment  which  is  under

challenge in these two appeals filed under the

provisions of the Supreme Court (Enlargement

of Criminal Appellate Jurisdiction) Act, 1970.

11. Mr.  Sushil  Kumar,  learned  Senior  Advocate

appearing for the appellants, submitted that

the prosecution witnesses Nos.2,3,4 and 6 were

closely related to the deceased.  Mr. Kumar

urged  that  their  evidence  should  have  been

considered  with  a  degree  of  caution  by  the

High  Court  while  reversing  the  judgment  of

acquittal  into  one  of  conviction  under

Sections 302, 307 read with Section 34 IPC and

Section  25(1)(a)  of  the  Arms  Act,  and

sentencing  them  to  life  imprisonment  and

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payment of fine of Rs.5,000/- each, in default

to  suffer  R.I.  for  further  period  of  two

months,  and  their  further  conviction  under

Section  307  read  with  Section  34  IPC  and

sentencing  them  to  suffer  R.I.  for  7  years

and  to  pay  a  fine  of  Rs.5,000/-  each,  in

default to undergo sentence of R.I. for one

month.

12. It  was  also  submitted  that  a  supplementary

complaint had been filed by PW 2, Kishor Janu

Patil, the son of the deceased, by which the

motive for the alleged murder was sought to be

modified. It was submitted that while in the

complaint  the  motive  for  the  shooting  was

shown to be an incident involving one Walia

Mahadya, who was a servant of the accused No.1

Dattu  Kane  Vaskar,  and  is  alleged  to  have

entered  the  house  of  one  Pandhari  and  had

tried to outrage the modesty of his wife, in

the supplementary complaint it was attempted

to be established that in actual fact the said

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Walia Mahadya had tried to outrage the modesty

of a girl, Kamali (PW 12), who had gone to

sleep  in  the  said  house  and  that  the  said

matter had been taken up at a meeting of the

Panchayat where the elder brother of PW 2 Atma

Ram Patil, who was examined as PW 3, was one

of  the  Panch   Members.  It  was  stated  that

since a decision had been given against Dattu

Kanu Vaskar, he along with other accused, in

order to extract revenge, participated in the

incident which resulted in the death of the

father  of  P.W.3  and  the  complainant  and

gunshot injuries being sustained by PW 3 Atma

Ram Patil.

13.  Mr. Sushil Kumar urged that by altering the

motive  for  the  alleged  incident,  the

prosecution  tried  to  connect  the  accused

persons  with  the  incident  of  shooting  which

resulted in the death of Janu Ganu Patil.   

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14. Referring  to  the  site  plan  of  the  place  of

occurrence  and  the  nature  of  the  injuries

sustained by the deceased and P.Ws. 2, 3 and

6,  Mr. Sushil Kumar  urged that it was quite

impossible for the incident to have occurred

in the manner as was sought to be established

by  the  prosecution.  It  was  submitted  that

while according to the prosecution the accused

persons had fired from the gallery of their

house which was situated at a height above the

courtyard of PW 3, the nature of injuries on

the deceased and P.Ws. 2, 3 and 6 makes it

clear  that  such  firing  could  not  have

happened   in  the  manner  indicated  by  the

prosecution. It was urged that having regard

to the evidence of PW 11 Shri Ramrao, who at

the relevant time was Medical Officer, Panvel,

and had examined the injured persons and had

also conducted the post mortem examination of

the  deceased,  except  for  injury  No.11

mentioned  in  the  report,  none  of  the  other

injuries could have been caused as a result of

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firing from the gallery of the opposite house.

It was urged that in his cross examination PW

11  had  mentioned  that  injury  No.1  i.e.

‘Punctured wound’ on the right scrotum could

have been caused by ground level firing at the

deceased. It was urged that all the injuries

apart  from  injury  No.11,  were  possible  by

ground  level  firing,  but  as  far  as  injury

No.11 is concerned, the same could not have

been  caused  by  ground  level  firing  and  had

been caused by firing from a higher level at

an angle of 45 degrees. It was urged that the

said evidence of the Medical Officer, was in

itself sufficient to disprove the prosecution

version of the manner in which the incident

had  occurred,  since  the  firing  which  caused

the injuries to the deceased as well as the

other witnesses, could only have been possible

if the firing had taken place at ground level

and  not  from  the  gallery  of  the  opposite

house.

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15. It  was  also  submitted  that  the  gun-shot

injuries  had  tattoo  marks  around  the  edges

which proved that the firing had been resorted

to  from  close  quarters  and  not  from  the

gallery of the house opposite to the house of

the  deceased  and  that  of  his  son  Atmaram,

which also fitted in with the defence version

that the injuries could only have occurred if

the firing had been done at ground level.

16. In this regard reference was also made to the

evidence of the Investigating Officer of the

case, Isram Pawar, who was examined as P.W.15,

to show that eight empty cartridges had been

seized from the house of the accused No.1 and

that the gun alleged to have been used in the

firing had been recovered from a well at his

instance.  It was also shown that in cross-

examination P.W. 15 had admitted that he had

also taken the gun of Gajanan Gopal Patil into

his custody but had not sent the same to the

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ballistic expert for his opinion as to whether

the shots which had been fired and the pellets

which  had  been  recovered  from  the  victim’s

body, could have been fired from the said gun,

raising doubts as to which gun had actually

been used and the circumstances in which the

shots had been fired.

17. Mr.  Sushil  Kumar  submitted  that  even  the

motive for the commission of the offence, as

projected  by  the  prosecution  was  not

established since Kamali, who had lodged the

First  Information  Report  of  the  alleged

attempt  to  outrage  her  modesty,  was  not

examined by the prosecution.

18. It was further submitted that the High Court

had in reversing the judgment of acquittal by

the  trial  Court  and  substituting  it  by  an

order of conviction under Section 302, 307/34

I.P.C. and Section 25(1)(a) of the Arms Act

acted  contrary  to  the  well-established

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principles  recently  reiterated  in  Chandrappa

vs. State of Karnataka, [2007 (4) SCC 415].

Reliance  was  placed  on  the  fifth  principle

mentioned in the said decision to the effect

that if two reasonable views are possible on

the basis of the evidence on record and one

favourable to the accused has been taken by

the trial Court, it ought not to be disturbed

by the appellate Court.

19. Defending the judgment and order of the High

Court,  Mr.  Chinmoy  Khaladkar,  learned

advocate, urged that the trial Court had not

considered the evidence of the eye-witnesses,

of whom three were independent witnesses, in

holding  that  the  prosecution  had  failed  to

prove  that  the  accused  were  guilty  of  the

charges  framed  against  them  and  acquitting

them.

20. The  evidence  of  P.W.2,  Kishore,  one  of  the

sons of the deceased and an eye-witness to the

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incident who has narrated the events clearly

and  without  any  ambiguity,  was  also  relied

upon by Mr. Khaladkar to demonstrate that the

deceased after receiving the gun-shot injuries

was lifted and carried to the cattle-shed from

the courtyard.  In the process, the witness,

his  mother,  her  sister  and  sister-in-law,

Chhaya, were also injured and he too had to be

hospitalized.   Holding  that  the  occular

evidence  was  not  only  credible  but  also

trustworthy, the High Court was of the view

that the trial Court had erred in discarding

the  evidence  of  the  eye-witnesses,  most  of

whom  were  related  to  the  deceased,  and

accepting  the  defence  theory  that  it  was

Kishor  (P.W.2)  who  had  taken  the  gun  of

accused No.1 and had resorted to firing which

killed his father and injured the others who

were present.  It was contended on behalf of

the State that no specific questions had been

put to the witness in cross-examination as to

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the  manner  in  which  the  firing  had  taken

place.

21. Having  considered  the  submissions  made  by

counsel  for  the  respective  parties  and  the

evidence addressed during trial, we are of the

view that the impugned judgment of the High

Court does not warrant interference.  

22. The  main  point  of  Mr.  Sushil  Kumar’s

submission is that having regard to the nature

of the injuries on the person of the deceased

and  the  place  from  where  his  body  was

recovered,  the  incident  had  not  occurred  in

the manner suggested by the prosecution.  Mr.

Sushil Kumar relied heavily on the statement

made by P.W.11 Ramrao, who had conducted the

post-mortem examination, that injury No.1 to

the  scrotum  of  the  deceased  was  caused  by

ground level firing.  According to Mr. Sushil

Kumar, the said statement of how the injury

had been caused to the deceased demolished the

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prosecution case that the guns had been fired

from the gallery of the house of the accused,

which was opposite to the court-yard of the

house of the deceased and that of his elder

son P.W.3 Atmaram.

23. Apart from the above, Mr. Sushil Kumar also

placed  a  good  deal  of  reliance  on  the  fact

that the body of the deceased was recovered

from  the  cattle-shed,  in  support  of  his

contention that the firing had not taken place

in the manner indicated by the prosecution and

that the deceased had been fired at, while he

was sleeping inside the cattle-shed.

24. As  indicated  hereinabove,  we  are  unable  to

accept  both  the  submissions  of  Mr.  Sushil

Kumar. The evidence of P.W.11, the Doctor who

conducted the post-mortem examination and who

also examined the others who were injured in

the  firing  clearly  supports  the  prosecution

story of the incident.  According to P.W.11,

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the injuries on the person of P.W.3 Atmaram

were possible if he was standing on the ground

floor and the gun was fired from the gallery

and  that  such  types  of  injuries  were  also

possible in respect of the other patients.  In

answer to a query of the Court as to whether

the injuries to the deceased could be caused,

if he was hit by the gun shot at an angle of

45 degrees fired from a gallery at a height at

the deceased while walking on the road, his

answer was positive. Furthermore, the Doctor

has also said quite definitely that it was not

possible to sustain the injuries as suffered

by  the  decease  if  he  was  sleeping  on  the

ground.  What is of interest is that according

to the Doctor, it was injury No.1 which was

caused by ground-level firing at the deceased.

25. The  evidence  of  P.W.11,  while  generally

corroborating  the  prosecution  case,  is  at

variance  with  the  occular  evidence  to  the

extent  of  injury  No.1  on  the  deceased.  The

said aspect of the matter has been dealt with

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by the High Court by placing reliance on the

decision of this Court in the case of Ramakant

Rai vs. Madan Rai, [2004 Crl. Law Journal 36]

reiterating the principle that where the eye-

witness account is found to be credible and

trustworthy, the medical opinion suggesting an

alternate  possibility  is  not  accepted  to  be

conclusive.  When injuries to all the persons,

including  the  deceased,  were  held  to  be  on

account of firing from a height, it has to be

held  that  the  High  Court  had  correctly

accepted  the  prosecution  version  of  the

incident resulting in the death of Janu Patil.

26.   Even the second limb of Mr. Sushil Kumar’s

submission  does  not  stand  scrutiny  having

regard to the evidence of P.Ws. 2, 3, 4, 5, 6

and  7  who  stated  that  after  Janu  Patil

sustained  injuries  in  the  firing,  he  was

removed by them to the cattle-shed where he

was ultimately found.

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27. Having regard to the above, we see no reason

to  interfere  with  the  judgment  of  the  High

Court and the Appeal is accordingly dismissed.

……………………………………………J. (ALTAMAS KABIR)

……………………………………………J. (Harjit Singh Bedi)

New Delhi Dated: 17.09.2008   

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