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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.