1
srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.154 OF 1992
1. Kerappa Narayan Bhuse
2. Sanjay Vishnu Bhuse
3. Shankar Pandurang Padvalkar
4. Jeetendra Sanjay Bhuse
5. Sadhu Bhagwat Shinde Appellants
(Org.Accused Nos.1,2,4
6 and 7)
Vs.
The State of Maharashtra Respondent
Mr. A. P. Mundargi with Mr. Niranjan Mundargi and Mr. Jaydeep
Mane for appellants.
Mr. J. P. Yagnik, APP for State.
CORAM: B.H.MARLAPALLE & A.A.SAYED,JJ.
Reserved on : April 15, 2010.
Pronounced on: June 7, 2010.
JUDGMENT (PER B.H.MARLAPALLE,J.)
1. In Sessions Case No.47 of 1991 in all 42 accused faced
trial for the offences punishable under Sections 147, 148, 149 of
IPC and Sections 302, 307, 337 and 323 each read with Section
149 of IPC. The learned II Additional Sessions Judge at Solapur
by his judgment and order dated 6/3/1992 was pleased to
convict accused nos.1, 2, 4, 6 and 7 for the offences punishable
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under Sections 147 and 148 of IPC and Sections 302, 323, 427
and 452 each read with Section 149 of IPC and hence this
appeal by the said five accused. During the pendency of this
appeal one of the appellants i.e. Shri Sanjay Vishnu Bhuse
(accused no.2) died on 3/3/2000 and, therefore, the appeal
stands abated qua the said accused and it survives for accused
nos.1, 4, 6 and 7.
1A. Shri Trimbak Shinde, a resident of Aundi, Taluka Mohol,
Dist. Solapur, an influential political leader at the Taluka and
District level had five sons i.e. Nashikrao, Dattatraya, Apparao,
Ashok and Anil. Apparao is an Advocate practicing at Solapur
and remaining four sons were at the village. Ashok was the
Police Patil. For more than 15 years the members of the Village
Panchayat used to be elected unopposed and mostly as per the
choice of Shri Trimbak Shinde or his sons and Shri Trimbak
Shinde was elected to the Panchayat Samiti of the Zilla
Parishad. However, in the year 1989 his writ did not work and,
therefore, the elections were held in the month of September,
obviously with two different panels, one headed by Shri Apparao
Shinde and the other one of Shri Kerappa Narayan Bhuse
(accused no.1), for all the 11 seats and the panel of Apparao got
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the majority of six seats whereas the panel of accused no.1 had
to be happy only with five seats. Consequently, Apparao came
to be elected as the Sarpanch with Harishchandra Maruti Kashid
– PW 14 as the Deputy Sarpanch. The prosecution alleged that
accused no.1 and his party as well as the associates, forcibly
obtained the resignation from PW 14 Kashid from the post of
Deputy Sarpanch as well as member of the Village Panchayat
and the five members of the panel of accused no.1 also
submitted their resignations. All the six resignations were sent
by post to the Sarpanch on 14/5/1990. Thereafter PW 14
addressed a separate letter to the Sarpanch stating that he had
not resigned and he was forced to resign and, therefore, the
resignation letter received from him should not be treated as
resignation. Shri Apparao Shinde, the Sarpanch accepted this
request and in the meeting held on 31/7/1990 none of the
remaining five members who had submitted their resignations
were present and the resignations came to be accepted. Thus
there was a rivalry between the two groups one led by Shri
Apparao Shinde and the other one led by accused no.1.
As per the prosecution case on 21/8/1990 at about 9 p.m.
accused nos.1 to 31 along with other ten persons armed with
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weapons like wooden sticks, swords/axes and iron bars had
gone to the wada (village bungalow) of Shri Trimbak Shinde.
Trimbak Shinde and his son Apparao were residing at Solapur
whereas the remaining brothers except Dattatraya were staying
in the wada along with their families and Dattatraya was
staying with his father-in-law whose house was just about 2-3
houses beyond the wada in the same village. Accused no.1
shouted in the name of Nashikrao and questioned whether he
had asked PW 14 to withdraw his resignation and on that count
he started abusing. The other accused persons who had come
with accused no.1 also started doing the same. PW 3 – Ashok
Shinde asked them not to abuse and go back to their respective
homes and at this time stone pelting started and, therefore,
Ashok Shinde closed the main door of the house from inside.
Stone pelting continued on the windows and within a short time,
from the adjacent house staircase accused nos.1 to 11 entered
into the room occupied by Nashikrao on the first floor/terrace.
Accused no.9 was holding an iron bar. Accused no.1, accused
no.2 and accused no.3 were armed with swords. Accused no.1
started assaulting Nashikrao with sword and they ran away after
Nashikrao came down through the staircase. Shri Janardhan
Gore PW-13 also received injuries while he was trying to
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intervene in the assault and he was sitting with Nashikrao at the
relevant time. Nashikrao collapsed and died and Janardhan
Gore’s son Anil came to the wada and took him away on his
motorbike and admitted him in the hospital at Solapur. Ashok
Shinde left the wada at 1 a.m. and reached the police station at
Mohol and lodged his complaint at about 7 a.m. on 22/8/1990.
PSI Prakash Ghadge – PW 18 reached the spot, drew the inquest
panchanam (Exhibit 50) and spot panchanama (Exhbit 51). He
also recorded the statements of Janardhan Gore – PW 13,
Harishchandra Kashid – PW 14 and Vithal Kamble. The dead
body of Nashikrao was sent for post mortem to the Civil Hospital
at Mohol and Dr. Anil Mehatrao – PW 11 conducted the post
mortem and signed the P.M. report at Exhibit 70. PW 13 –
Janardhan Gore’s statement was also recorded while in the
hospital at Solapur and he was under treatment in the hospital
till 24/8/1990. Some of the witnesses were sent for medical
examination. The weapons were recovered and the clothes on
their person were seized and all these articles along with the
blood mixed mud collected from the spot of incident were also
sent for chemical analysis. On 24/8/1990 six accused were
arrested. The investigation was then taken over by PW 27 –
Chandrakant Dange on 1/9/1990 and he had arrested accused
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nos.9 to 14 on 2/9/1990. On 6/9/1990 he had arrested accused
nos.5 to 10, accused nos.22 and 23. He arrested accused nos.
24 to 30 on 11/9/1990 as well as accused nos.11, 31 to 36 were
arrested by PSI Gaikwad on 12/9/1990. On 29/9/1990 nominal
arrest of accused nos.37 to 42 was made and on 25th September
1990 motorcycles of accused nos.1 and 2 were seized. The
arrested accused who had suffered injuries were sent for
medical examination. On completion of investigation the
charge-sheet came to be submitted in the Court of Judicial
Magistrate, First Class, Mohol on 29/11/1990. The map of scene
of offence was drawn at Exhibit 61 and on 4/12/1990 the CA
reports were received in respect of the muddemal articles and
blood samples and on 4/1/1991 CA reports of blood samples of
injured were received. As the case being exclusively triable by
the Sessions Court it was committed to the Sessions Court and
charge was framed on 27/9/1991. During the trial accused nos.
2, 4 and 6 were released on bail on 31/5/1991 but accused nos.1
and 7 were denied bail and on admission of this appeal all the
five appellants came to be released on bail on 8/4/1992.
2. The prosecution examined in all 27 witnesses and the
defence examined three witnesses so as to establish that on the
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date of the incident the house of the complainant did not have
power supply (DW 2), PW 13 – Janrdhan Gore had visited
accused no.1 in the jail on 17/8/1991 and had told him that the
accused were framed in a false case at the behest of Shri
Apparao Shinde – Advocate and through the evidence of DW 3
station diary entries of the Control Room at Solapur recorded on
21/8/1990 were placed on record. The evidence of the
prosecution, as recorded by the trial court, is under six different
categories, namely, (a) motive, (b) medical opinion, (c) eye
witnesses, (d) recovery of weapons, (e) availability of light in the
Wada and (f) seizure of incriminating articles.
To prove the motive of political rivalry on account of the
withdrawal of resignation letter by PW 14 – Harishchandra
Kashid, the prosecution relied upon the evidence of PW 12 –
Shriling Ukhale and PW 26 – Nagnath Zarkar, both Gramsevaks
as well as PW 14 – Harishchandra Kashid. For medical opinion,
two doctors came to be examined i.e. PW 10 – Dr. Sharadkumar
Patil, so as to prove the injuries on PW 13 – Janardhan Gore and
PW 11 – Dr. Anil Mehatrao to prove the PM notes at Exh. 70
along with the advance medical certificate of deceased
Nashikrao Shinde at Exh.71 as well as the medical certificates
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issued for injured witnesses i.e. Bharat Chavan, Ramrao Shinde
(PW 6), Dattatraya Shide and Jagnath Bhuse (PW 4). So far as
ocular evidence is concerned, the prosecution has relied upon
the depositions of PW 3 – Ashok Shinde, complainant, PW 6 –
Ramrao Shinde, PW 4 – Jagnath Bhuse, PW 13 – Janardhan Gore
and PW 15 – Tukaram Shinde. To prove that the Wada where the
incident had taken place had electric power supply at the time
of the incident, the prosecution examined PW 1 – Nivrutti
Kamble, PW 16 – Vithal Kamble, PW 17 – Patalu Gaikwad and PW
5 – Uttam Patil. So far as the recovery of weapons is concerned,
PW 7 – Murlidhar Kshirsagar, PW 8 – Ramesh Shinde and PW 9 –
Nagnath Bansode were examined as panch witnesses and they
had turned hostile. The recovery of weapons and the clothes of
accused nos.1 to 4 became doubtful. Even otherwise, as per the
C.A. report, the blood group of the deceased Nashikrao detected
to be “O” and on the recovered weapons and more particularly
the sword, blood of group “O” was not detected and, therefore,
this recovery of weapons became inconsequential. The seizure
of two motorbikes bearing registration nos. MVP 8427 and MVP
8426 at a place near the house of Sopan Tukaram Doke in terms
of panchanama at Exh. 117 dated 1/1/1990 was also found to be
inconsequential by the trial court to hold that these vehicles
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belonged to accused no.1 and accused no.2. It was the case of
the prosecution that immediately after the incident accused nos.
1 and 2 had fled on these motorbikes.
3. The main case of the prosecution is,
(a) the assault on the deceased Nashikrao as well as
PW 13 – Janardhan Gore had taken place in the
house of the complainant between 8.30 p.m. and 9
p.m. on 21/8/1990;
(b) deceased Nashikrao was assaulted so as to take
revenge for his role in requesting PW 14 – Kashid,
Deputy Sarpanch to withdraw his resignation and
Nashikrao was assaulted with swords and other
sharp weapons as well as iron bars and wooden
sticks by the accused;
(c) while PW 13 – Janardan Gore was in the
company of the deceased Nashikrao, during the
incident, tried to intervene and save Nashikrao from
the assault, he himself became a victim and the
accused assaulted him with an intention to kill him.
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4. PW 11 – Dr. Anil Mehatrao was the Medical Officer
attached to Mohol Rural Hospital from January 1990 to 6th
January, 1991 and he stated before the trial court that on
22/8/1990 the dead body of Nashikrao Trimbak Shinde was
referred to him for post mortem by the Mohol Police Station and
he conducted the autopsy on the said dead body between 3 to 4
p.m. on the very same day. On examination he noticed the
following external injuries on the dead body of Nashikrao:
1. Incised
out wound at right side of the forehead,
dimensions 5 cm x 2 cm x 1 cm bone exposed, transverse
wound.
2. Incised cut would at right frontoparietal region of the
skull, dimensions 6 cm x 2 cm x 1 cm bone exposed
transverse wound.
3. Incised cut wound at right scapular region vertical,
dimensions 5 cm x 2 cm x 2 cm.
4. Incised cut wound at posterior region of right shoulder
posterior wall of right exilla completely damaged, muscle
torn, dimensions 15 cm long x 6 cm broad x 4 cm deep.
5. Contusion at back, vertical and horizontal, quadrangle,
dimensions length 34 cm, breadth 31 cm thickness 1 cm.
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6. Abrasion left shoulder 2 cm x 1 cm x ½ cm. Superficial.
He also noticed the following internal injuries:
1. Injuries under the scalp; haemotoma under left parietal
region.
2. Skull :- Depressed fracture of frontal bone at right side
below first wound, size 1 cm x 1 cm.
3. Brain :- Subdural haemotoma seen over right parietal
region.
As per him all the external injuries were ante mortem and
they were sufficient in the ordinary course of nature to cause
death. Injury Nos. 1 and 2 were individually sufficient to cause
death in ordinary course of nature as they were on vital parts of
the body and the age of injury was within approximately 18 to
24 hours. Injury Nos. 1 to 4 could have been caused by sharp
cutting weapon like Article 26 – sword. Whereas Injury No. 5 was
possible by hard and blunt object like iron bar Article 42 and
Injury No. 6 was possible by hard and blunt object like stick –
Article 29. In his opinion the cause of death was head injury and
haemorrhaegic shock. He confirmed the PM report at Exh. 70
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and the medical certificate at Exh. 71. In his cross examination
he stated that the deceased must not have taken food prior to
the incident and about 4 to 6 hours were required for digestion.
The bladder was empty. He denied the suggestions that
Nashikrao did not receive injuries by sword, stick and iron bar.
It is thus clear from the above medical evidence that
Nashikrao died a homicidal death on account of the injuries
caused on his head which resulted into fracture of skull.
ig He
died instantaneously and the death was within 18 to 24 hours
prior to the time of the atopsy.
5. PW 10 – Dr. Sharadkumar Patil was the Chief Medical
Officer, Civil Hospital at Solapur for about three years and on
21/8/1990 he was on duty between 9 p.m. to 7 a.m. He stated
before the trial court that at about 00.45 hours on 22/8/1990 PW
13 – Janardan Gore was brought by his son to the Civil Hospital
and he examined him. He noticed the following injuries on his
person:
1. C.L.W. 3 cm. X 1 cm. Muscle deep, right parietal region,
hard and blunt object, within 24 hours. Simple injury.
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2. C.L.W. 2 cm. X 1 cm muscle deep, left parietal region, hard
and blunt object, within 24 hours. Simple injury.
3. C.L.W. 4 cm x 1 cm muscle deep, occipital region, hard
and blunt object, within 24 hours, within 24 hours. Simple
Injury.
4. Abrasion 3 cm x 2 cm, left parietal region, hard and blunt
object, within 24 hours. Simple injury.
5. Contusion 5 cm x 5 cm. Left wrist, hard and blunt object,
within 24 hours. Simple injury.
6. Contusion 3 cm x 2 cm, left forearm, hard and blunt
object, within 24 hours. Simple injury.
7. Abrasion two in number, 2 cm x 1 cm and 3 cm x 2 cm, on
left thigh, hard and blunt object, within 24 hours. Simple
injury.
8. Abrasion two in number 2 cm x 2 cm and 2 cm x 2 cm on
Right forearm, hard and blunt object, within 24 hours.
Simple injury.
He further stated that all the injuries were simple. The
patient was advised x-ray and was referred to the surgery ward.
The injuries could be within 24 hours and by hard and blunt
object. Injury Nos. 1 to 3 were possible by iron bar – Article 42
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and Injury Nos. 4 to 8 were possible by stick – Article 29. He
confirmed to have issued the medical certificate at Exh. 67.
The doctor further stated that if immediate medical aid
would not have been made available to PW 13, it could be
dangerous to his life and injury nos. 1 to 4 were on the vital
organ of the body. He further stated that cumulative effect of
injury nos.1 to 4 was sufficient in ordinary course of nature to
cause death in case medical aid was not available.
ig He
confirmed the medical papers at Exh. 68. In cross-examination,
he admitted that patient was discharged on 24/8/1990 and all
the injuries were simple in nature and no fracture was noticed.
No damage was caused to the brain. Though he found that there
could be no possibility of the death of the patient, it appears
that the opinion given by the said doctor was nothing short of
an opinion, not supported by the medical papers. Perusal of
Exhs. 67 and 68 clearly indicated that PW 13 had sustained only
simple injuries, there was no history of unconsciousness,
omitting or bleeding etc. Though the doctor said that he
examined the patient, the medical papers indicated that PW 13
was admitted around 1.10 a.m. It was only an off the cuff
opinion by this doctor that the injuries nos. 1 to 4 suffered by
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PW 13 could have caused his death if medical treatment was
not made available to him in time and this opinion is not
supported from the record. He only tried to strengthen the case
of the prosecution by this after thought opinion given before the
court for the first time, while in the witness box. Such an opinion
is not binding on the court and it is well settled that the medical
opinion is only advisory and not final. In our opinion there was
no case made out by the prosecution for an offence punishable
under Section 307 of IPC in regard to the injuries allegedly
suffered by PW 13.
6. At Exh. 178, the accused no.1 had set out his defence in
writing and to the following effect:
(a) a false and fabricated case was made out by
the IO at the behest of the Sarpanch – Apparao
Shinde and Police Patil – Ashok Shinde so as to
settle the political rivalry and to teach a lesson to
him as he was filing complaints against the
Sarpanch, Police Patil and also in respect of the
mismanagement of the society;
(b) on 20/8/1990 Nashikrao was assaulted in the
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Muslim locality. On 21/8/1990 while PW 13 was
sitting near the Tamboli Katta, some persons had
assaulted him and subsequently his son had taken
him to the Civil Hospital at Solapur and his
statement was recorded on the same day. The
incident in which PW 13 received injuries and
the incident in which Nashikrao died were not one
and the same;
(c) Police Sub Inspector Ghadge from Mohol
Police Station conducted the investigation
dishonestly at the influence of Apparao Shinde,
Advocate, prepared ante time FIR and all the
names of the accused were added in the complaint
as per the list given by Advocate Shinde.
(d) PW 13 – Janardhan Gore had met accused no.
1 in the jail on 17/8/1991 and informed him in
clear terms that Shinde Advocate had filed a false
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case and had roped in the accused party. He,
therefore, tendered his apology and also stated
that he was being forced to depose against him
during the trial.
(e) All the witnesses were from the political
party of Advocate Shinde and some of the main
witnesses like Advocate Shinde and Anil Gore,
the son of PW 13, were not examined and on
this count also, the prosecution case was
required to be discarded.
7. Coming to the issue of motive, even as per the
prosecution, the resignation of PW 14 from the post of Deputy
Sarpanch as well as from the membership of the Village
Panchayat along with five members i.e. Sanjay Vishnu Bhuse,
Ankush Pandurang Sonawane, Rajaram Vaijinath Bhacute,
Maruti Madhav Dhodke and Sau. Kalavati Kashinath Sonawane
were received by PW 12 and were placed before the Sarpanch –
Shri Apparao Shinde. PW 14 submitted an application (Exh.86)
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and as per the said application, the case of PW 14 was that he
never submitted the resignation dated 15/5/1990 and that some
ill-minded persons had pressurized him and obtained his
signature on a typed paper and that he had not submitted his
resignation on his own free will. This letter has been signed by
two other persons, namely, Hari Dyandeo Shinde and Nivrutti
Dyandeo Shinde as witnesses. The meeting of the Village
Panchayat members was held on 30/5/1990 and his resignation
was not accepted. There was no whisper of any inimical action
by the accused party from 1/6/1990 till the next meeting of the
Village Panchayat which was held on 31/7/1990. In the cross-
examination of PW 14 improvement was brought out in respect
of the alleged threat given by accused no.1 to kill him if he
refused to resign. PW 18, when in the witness box, admitted in
the cross-examination that PW 14 had not stated before him
that accused no.1 had threatened to kill him if he refused to
resign from the post of Deputy Sarpanch and member of the
Village Panchayat. Thus, the motive behind the offence and as
was relied upon by the prosecution, appeared to be very weak.
8. Let us examine the place, time and the manner in which
Nashikrao died and more so because the defence has
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consistently maintained that the incident in which PW 13
Janardhan Gore was injured near the Tamboli Katta was different
from the incident in which Nashikrao died a homicidal death. In
the evidence of PW 19 – Shivaji Patil, Police Constable, Sadar
Bazar Police Station, Solapur, the prosecution brought on record
that in the station diary of Sadar Bazar Police Station an entry
came to be recorded at 1.25 a.m. on 22/8/1990, on the basis of
the information received from the Civil Hospital at Solapur, that
PW 13 was assaulted at village Aundi at 8.30 p.m. on 21/8/1990
without any reasons and on account of earlier dispute betwen
the parties by Uddhav Ranjan Bhuse and three others with axe
and iron bar. He had sustained injuries on both his hands and
was admitted in the hospital by his son Anil Gore for treatment.
Patient was ok. Advocate Shri Shinde and relation of the patient
had gone to Mohol Police Station to file a complaint (Exh.103).
DW 3 – Bapuji Bhosale, PSI, Control Room, Solapur was
examined by the defence and through his evidence, the control
room station diary extracts for 21/8/1990 were brought on
record at Exhs. 174 to 176. As per the entry at Sr.No.4 made in
the said station diary at 1.45 a.m. on 22/8/1990 Shri Apparao
Trimbak Shinde, Advocate from Solapur reached the control
room and informed that in Aundi village there was an incident of
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group clashes (maramari) and in that PW 13 was injured and
was admitted in the Civil Hospital at Solapur. In the same
village, around the house of police patil, people had gathered
and were likely to attack. Accordingly wireless message was
sent to Mohol Police Station and PSI Shri Ghadge and other
police personnel had left for the said village. In the evidence of
PW 19, the extract of police station diary of Mohol Police Station
was brought on record and as per the same, at about 2 a.m. on
22/8/1990, the wireless message from control room, Solapur
was received and PSI Ghadge and four police constables were
sent to village Aundi. The entry at 5 a.m. taken on 22/8/1990 at
Exh. 104 indicated that the Deputy S.P., Shri Chavan was
briefed about the incident at village Aundi and that one person
was killed in the same. The entry made in the station diary of
control room, Solapur at 6.10 a.m. was regarding the phone call
received from Shri Chavan, Dy.S.P. As per the same, Mohol
Police Station PSI Shri Gaikwad was not traceable and striking
force was to be sent to Mohol Police Station. These entries and
more particularly the entry made at 1.25 a.m. in the station
diary of Sadar Bazar Police Station and the entry made at 1.45
p.m. in the control room diary at Solapur and the third entry
made at 2 a.m. in the station diary of Mohol Police Station did
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not whisper that in the group clashes taken place at Aundi, one
person was dead. Even the entry made at 7 a.m. on 22/8/1990
in the control room station diary did not state that one person
had died in the group clashes at village Aundi within the
jurisdiction of Mohol Police Station, though by that time PSI
Rathod and 16 police constables had left for the said place. The
entry at Exh. 104, recorded at 5 a.m. on 22/8/1990 disclosed for
the first time about the death of one person in the group
clashes at Aundi.ig
9. PW 18 in his depositions before the trial court stated that
at 2 a.m. on 22/8/1990 a message was received from Solapur
Control Room to send police force to village Aundi and,
therefore, he reached the said village between 3 to 3.30 a.m.
He learnt in the village that in the house of the police patil there
was a maramari and, therefore, he reached the spot. He found
that the house was closed and on knocking the door it came to
be opened. The dead body of Nashikrao was found lying in the
Varanda. He enquired with the inmates of the house as to who
would lodge the complaint and he was informed that the police
patil had gone to lodge the complaint at Mohol Police Station.
He, therefore, deputed police staff for maintaining law and
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order and returned to the police station after spending about 2
hours in the village. He did not draw the inquest panchanama
despite the fact that he had a police party with him. Two other
brothers of the deceased i.e. Dattatray and Anil were present in
the house along with other injured witnesses as per the
prosecution case and he did not call upon any one of them to
record the complaint despite the fact that a cognizable offence
was noticed by him. He further stated that when he reached the
Mohol Police Station at about 7 a.m. he saw the police patil
(complainant) waiting at the gate and, therefore, his complaint
(Exh.57) was recorded at about 7.15 a.m. and C.R. No.124 of
1990 came to be registered. He took over the investigation. He
thereafter went back to village Aundi and held inquest vide Exh.
50 as well as the spot panchanama at Exh.51. He seized one
spear (Article 4) from the spot along with wooden plank, soil
mixed with blood and four stones.
10. The inquest panchanama at Exh.50 stated that when the
witnesses examined the private part of the deceased, he
noticed passing of stool as well as semen. This panchanama
was drawn between 9.30 to 10.15 a.m. on 22/8/1990 Spot
panchanama at Exh.51 along with the inquest panchanama
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Exh.50 was proved through the evidence of PW 1 Nivrutti
Kamble and PW 18. The spot panchanama did not indicate any
blood stains noticed either around or near the body where it
was kept, nor on the staircase. It was the case of the
prosecution that the deceased was assaulted in the room on the
first floor and after the assailants had left he came through the
staircase along with PW 13 and the complainant and collapsed.
He had sustained profusely bleeding injuries and still the spot
panchanama did not show the presence of any blood stains at
these places. The panchanama at Exh.53 which was proved
through the evidence of PW 2 – Manik Mane, was claimed to
have been drawn between 12.30 to 1 p.m. on 22/8/1990 in the
house of the complainant and it deals with the seizure of the
clothes from the person of the deceased. This is rather
unbelievable. The dead body was sent for the post mortem and
was received by PW 11 at about 2.15 p.m. The blood stained
clothes from the body of the deceased could be seized only
after the post mortem was over and they could not have been
seized between 12.30 and 1 p.m. in the house of the
complainant. To cover up this circumstance, the prosecution
examined PW 21 – Vijaykumar Gavali, a police constable, who
stated that he carried a naked body, covered by a cloth, to the
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Civil Hospital for post mortem.
As per the entry made in the station diary of the control
room at Solapur as well as the Sadar Bazar Police Station, the
incident in which PW 13 was injured had taken place at about
8.30 p.m. on 22/8/1990, as per the information given by Shri
Appasaheb Shinde, Advocate. The deceased was Advocate
Shinde’s brother. If the deceased was assaulted in the same
incident in which PW 13 was injured at about 8.30 p.m., the
prosecution did not explain as to why the first information given
to the control room as well as Sadar Bazar Police Station did not
say so. Shri Appasaheb Shinde, Advocate, was not examined by
the prosecution though he was the first informant. Dattatray
Shinde and Anil Shinde who were the other two brothers of the
deceased ( Dattatray claimed to be an injured witness), were
not examined by the prosecution, in addition to the fact that
Anil Gore, the son of PW 13 was also not examined. Even as
per the complainant, the incident in which his brother Nashikrao
was killed, had taken place at about 10 p.m. on 21/8/1990 and
that too in his house. Deceased Nashikrao was the eldest son
of Shri Trimbak Shinde and his age was shown to be 48 years.
The learned APP could not explain the circumstance of
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discharge of semen, as was noted in the inquest panchanama
at Exh. 50. As per Parikh’s Textbook of Medical Jurisprudence
and Toxicology, discharge of stool and semen cannot be at the
same time. There is no possibility of discharge of semen when
the victim is faced with a sudden shock or scare or fear of life
and in such a situation, discharge of stool/urine is possible. This
circumstance of discharge of semen in the inquest panchanama
is suggestive that Nashikrao was assaulted while he was asleep
in some place other than his home (wada) which was claimed to
be the spot of the incident by the prosecution.
11. PW 13 – Janardhan Gore had stated before the trial court
that he had gone to the house of the deceased between 9 to
9.30 p.m. on 21/8/1990 and the incident of attack on the
deceased had taken place after half an hour in the house of the
deceased. Thus, as per this witness, the deceased was
attacked between 9.30 to 10 p.m. PW 3 – Ashok Shinde stated
before the trial court that the deceased was assaulted by the
accused party and he was found dead at 10 p.m. Whereas the
entry in Exh. 103 went to show that PW 13 was assaulted at
village Aundi at 8.30 p.m. on 21/8/1990. As per PW 13 –
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26
Janardhan Gore, he sustained the injuries while he intervened in
the assault inflicted on the deceased, which meant that he had
received injuries when the deceased was assaulted. The
prosecution claimed that both, the deceased as well as PW 13,
were attacked in the very same incident. Thus, the evidence of
the prosecution was contradictory and the defence was
successful in pointing out that the prosecution was not able to
prove its case that PW 13 and the deceased sustained the
injuries in one and the same incident.
ig This creates doubts
about the prosecution story that the deceased was assaulted
while he was in his house (wada) and he died at about 10 p.m.
and that PW 13 had sustained bleeding injuries while he tried to
intervene and save the deceased from further assault. The
absence of any signs of blood around the place, where the dead
body was kept when the inquest was drawn or in the staircase,
make the prosecution case highly doubtful that the deceased
was assaulted in the wada. In our opinion, the prosecution
failed to establish that the incident had taken place in the wada
when the defence had specifically contended that the incident
had not taken place in the wada and that the incident in which
PW 13 was injured had taken place between 8 to 8.30 p.m. near
the Tamboli Katta.
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12. As per the prosecution, PW 13 – Janardhan Gore was an
injured eye witness in the incident resulting into the homicidal
death of Nashikrao. He stated in his examination-in-chief that
accused nos.1 to 11 had reached the room in which he was
present along with the deceased and all of them had come from
the side of house of Chougule and not through the Wada. As
per him accused no.1, accused no.2, accused no.4 and accused
no.5 were holding swords / barchi. Whereas accused no.3 was
holding stick, accused no.7 was holding an iron bar and accused
no.8 was holding a chain. Accused no.1 started to give blows
by sword to the deceased and other accused also started
assaulting him. He called upon the accused not to assault
Nashikrao and, therefore, he tried to intervene but accused no.7
started assaults on him with iron bar. When he tried to ward off
the assault he received one blow on his head. By that time PW
3 – Ashok Shinde and PW 4 – Jagannath Bhuse were already
standing in the staircase and they had called Nashikrao and PW
13 downstairs. PW 4 closed the door of the staircase after
Nashikrao and PW 13 started climbing down and after going
down in the Wada his son Anil reached the Wada and took him
away to his house. Thereafter his son Anil and Bhaskar who
was the Chairman of the Co-operative Society took him to the
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Civil Hospital at Solapur on a motorcycle. In his cross-
examination he himself demolished the story of attack as
described by him. A number of improvements / omissions were
brought out in the cross-examination with reference to the
statement recorded by the police. He admitted in his cross-
examination that when accused nos.1 to 11 had come on the
terrace, he was outside the room along with Nashikrao and he
told the assailants not to assault. The incident of assault on
Nashikrao lasted for two minutes and according to him four
persons had assaulted Nashikrao. Nashikrao fell down but
immediately stood up and when they went down the staircase,
the assailants also went down. A specific question was asked to
him whether 4-5 persons had assaulted Nashikrao and another
4-5 persons had assaulted him (he had named 11 accused as
the assailants), he stated that it did not happen so and clarified
that Nashikrao was assaulted before and the assailants did not
run away after Nashikrao fell down. He also stated that he was
not conscious when he was admitted in the Civil Hospital and
this was contrary to the record of the hospital which clearly
indicated that the patient was conscious when he was brought
to the hospital. It was pointed out by the defence that in his
statement recorded on 22/8/1990 by the police head constable
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at Solapur he had not stated that accused no.8 was holding
chain, accused no.3 was holding stick and accused no.5 was
holding a barchi / sword. He stated further that he could not
assign any reason for the said omission. He also denied that he
had visited accused no.1 in the jail on 17/8/1991 and informed
accused no.1 that the accused party was framed at the instance
of Appasaheb Shinde – Advocate. The defence demolished this
witness through the testimony of DW 1 – Waman Gawai who
was the Superintendent of District Prison at Solapur at the
relevant time. He had come before the Court with the jail
register and he pointed out the entry therein on 17/8/1991. As
per the said entry one Sunil Namdeo Jadhav and Janardhan
Govind Gore (PW 13) had visited the said jail to meet accused
no.1 – Kerappa Narayn Bhuse and this witenss produced the
extract of the register at Exhibit 160. Against the entry of PW
13 it was mentioned that he wanted to meet his friend accused
no.1 – Kerappa. The Superintendent of Jail also clarified that it
was not necessary for the visitor to give an application to meet
any inmate. The defence thus proved before the trial Court that
the testimony of PW 13 was not without doubts, he was hiding
the truth from the Court and had made his depositions
unreliable, so as to support the prosecution case, though he had
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dined the suggestions that he was part of the false case put up
in connivance and at the instance of Appasaheb Shinde,
Advocate against the accused.
13. As per PW 4 – Jagannath Bhuse, after PW 3 – Ashok
Shinde had closed the door of his main house and out of 40
persons mob from the accused party, two-four persons from
one side and two-four persons from other side had gone on the
terrace from the house of Chougule and others remained
standing pelting stones in front of the house. After he heard the
shouts “Hanare hana” and the cries of Nashikrao, he along with
PW 3 and Tukaram Shinde went upto the staircase and
remained standing there in the entrance door. He saw that
accused nos.1, 2 and 4 were giving blows to Nashikrao. PW 13
– Janardhan Gore tried to separate Nashikrao but accused no.7
assaulted PW 13 with an iron bar. Accused no.3, accused no.11,
accused no.9, accused no.8, accused no.6 and accused no.10
were also giving blows to Nashikrao. He had also received a
blow of stone above the right ear. He then called Nashikrao and
Janrdhan Gore inside the staircase and they came down with
bleeding injuries. His giving the list of 11 accused persons did
not support his earlier statement that 2-4 persons from one side
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and 2-4 persons from other side had gone on the terrace so as
to assault Nashikrao. In his cross-examination he admitted that
on the date of the incident he had reached the house of PW 3 at
9 p.m. The role assigned by him to accused no.1 was proved to
be a contradiction as compared to his statement recorded by
the police. He further stated that the assault on Nashikrao went
on for 3-4 minutes. He also stated that Nashikrao himself
walked down the staircase and he was found dead immediately
after he fell down. He did not advise PW 3 to go to the police
station nor he made any phone call to the police station. After
the incident he had gone to his house and went to bed and did
not return to the Wada on that day as well as the next day
though he attended the cremation of Nashikrao. He did not
disclose the incident to anybody till his statement was recorded
by the police. The defence thus proved that this was an
unnatural witness and, therefore, unreliable.
14. PW 3 – Ashok Shinde is the younger brother of the
deceased and was the police patil at the relevant time. As per
him the incident had taken place on 21/8/1990 in the night with
many people coming from the side of Maruti temple armed with
sticks, swords, axes, stones etc. in front of his house and he had
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seen the mob from the window of the veranda. As per him
accused nos.1 to 11, 13, 14, 19, 21, 22, 25 to 27 and 31 to 33
were the persons standing in front of his house and they were
giving abuses. He asked them not to give abuses. However,
they started pelting stones on his house and he was frightened
and closed the door of the house. At that time Nashikrao and
PW 13 – Janrdhan Gore were in the room on the terrace. After
sometime, he heard the shouting of his brother Nashikrao from
the terrace and, therefore, he along with Jaganath Bhuse,
Tukaram Shinde, Ramkrishna Chavan and his brother Bharat,
Ashok Pawar went running through the staircase and noticed
that accused nos.1 to 11 had reached the terrace and accused
nos.1, 2 and 4 were armed with swords, accused no.7 was
holding an iron bar. Thus as per this witness only four persons
were armed. Accused no.1 assaulted Nashikrao with sword and
PW 13 intervened and at that time accused no.7 gave one blow
on the head of PW 13. He then called his brother and PW 13 in
the staircase and accordingly they came down the staircase and
he closed the door of the staircase. As per this witness, he had
seen only one assault by accused no.1 on Nashikrao and one
assault by accused no.7 on the head and arm of PW 13 and this
was the evidence in examination-in-chief. This evidence was
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not in keeping with the medical evidence and more particularly
the injuries noted on the person of the deceased.
This witness further stated that as soon as the deceased
came down, he collapsed and was dead. He further stated that
as it was night time, he apprehended danger of further assault
on him and, therefore, did not go to Mohol to lodge the
complaint, though the incident had taken place around 10 p.m.,
he waited till 1 a.m. and after everything was calm and quiet,
he proceeded towards Mohol by walk and reached Mohol before
the sunrise by traveling a distance of about 20 Kms. and he
lodged the complaint at Exhibit 57. He returned with PW 18
and other police staff to his village between 8 to 8-30 a.m. on
22/8/1990 and the police reached the village from Solapur
around 11 a.m. As per PW 18, he had left behind 4 police
constables in the village when he left for the police station, at
about 5.30 a.m.
In his cross-examination his testimony was totally
demolished and the defence brought out that he was not
speaking the truth before the Court. He admitted that he was
working as a police patil for the last 5-6 years and every police
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patil was provided with the “Vardi book”. He admitted that
there was a Kotwal in the village and that he as the police patil
did not make an entry of the incident in the vardi book. He also
admitted that there was a post office and telephone facility in
the village but he did not use it so as to immediately contact
the police station at Mohol. He also admitted that village
Takali-Sikandar was at a distance of 2-3 Kms. from his village
and there was a sugar factory in the said village. His brother
Apparao Shinde was the legal advisor of the said sugar factory
which had telephone facility. He also admitted that his father
was a member of the Managing Committee of the sugar factory
and despite this he did not deem it appropriate to reach the
sugar factory in the night and contact the police station instead
of allegedly walking down to the police station after 1 am. He
also admitted that for the first time elections of village
panchayat in his village were held in September 1989 and
before that his uncle was elected Sarpanch unopposed for
about 20 years and the word of his father carried lot of weight
in the village. He also admitted that he was the Chairman of
the Maruti Temple Committee in the village. He also admitted
that all the accused persons belonged to the group of accused
no.1 who had contested the elections against the panel of
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Apparao Shinde, Advocate. He admitted that accused no.30 –
Srirang was residing in village Akluj at the time of incident and
accused no.17 – Mahadeo was employed with MSEB at Kurool.
He also admitted that accused no.4 had contested the election
to the village panchayat against the panel of Apparao Shinde,
Advocate. He further admitted that accused no.5 is the nephew
of accused no.2, accused no.6 is the son of accused no.2,
accused no.7 is the son of accused no.9, accused no.10 is the
brother of accused no.1 and accused no.1 was the elected
member of the village panchayat. He also stated that
population of Aundi was about 3500. He also admitted that on
the date of the incident he had gone to Mohol by the bus of the
sugar factory and he had returned by about 5 p.m. and met the
deceased but did not know when the deceased had taken food.
As per him the incident of assault on Nashikrao went on for 5-10
minutes and he had not made any hue and cry when he had
seen the accused assaulting Nashikrao and after the assault
Nashikrao walked down the staircase with the support of the
side walls. He went on to state in the cross-examination that all
the persons were armed with sword as against his statement in
the examination-in-chief that only three of them were armed
with swords. When Nashikrao fell down, he did not provide him
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water. He also admitted that Deputy Sarpanch Kashid was
holding a motor-cycle and the post office was near the Maruti
temple. He did not make any telephone from the post office to
the Mohol police station and did not try to inform on phone from
the sugar factory or from Ankoli. He admitted that agricultural
land of accused no.1 was adjoining to his land. He further
stated that till 1 a.m. he did not think of using the motorcycle of
the Deputy Sarpanch nor did he make any attempt to secure a
vehicle to go to Mohol to lodge a complaint.
ig Though he
admitted that there was a Muslim mohalla in his lane, he denied
that Nashikrao had outraged modesty of a Muslim girl between
7 to 8 p.m. on the day of the incident. He also denied that
when he had returned from Mohol, he had learnt at the
entrance of the village that Nashikrao was lying dead in the
veranda of his house and that he had sent a messenger to his
brother Apparao Shinde, Advocate. He was not aware whether
PW 18 – PSI had visited the village in his absence. He also
denied that PW 18 had visited his house and enquired about the
incident. He also denied the suggestion that PSI PW 18 had
asked him to lodge a complaint but he refused to do so unless
he had consulted his lawyer brother. He also admitted that
there was a gun in his house and it was secured by his father
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but he could not operate it. He was confronted with his
statement recorded by the police and he admitted that he had
not stated that he waited till 1 a.m. before proceeding to lodge
the complaint with Mohol police station. He was asked a
specific question pointing out his complaint that he reached the
police station to lodge the complaint only after the sunrise, and
it was not the night time and he answered the same in the
affirmative.
15.
PW 15 – Tukaram Shinde is claimed to be another eye
witness of the prosecution. He stated that he had climbed up
the staircase and had seen accused no.1 while assaulting the
deceased – Nashikrao by sword, accused no.8 Sidhram while
assaulting PW 13 with a chain. He further stated that accused
no.3 had given a blow to Nashikrao with a stick and accused no.
7 had assaulted Nashikrao with iron bar. While PW 13 was
trying to intervene, PW 7 assaulted him with iron bar and
accused no.3 with a wooden stick. He further stated that
accused no.5 and accused no.10 had also assaulted Nashikrao
by stones. This witness clearly improved on the testimony of
PW 13 regarding the assault on Nashikrao as well as PW 13. He
further stated that Nashikrao and PW 13 came down the
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staircase to the veranda and Nashikrao fell down and was found
dead. He admitted in his cross-examination that he himself, PW
3 – Ashok Shinde and his brother Dattatraya and another
person by name Maruti Maske were arrested on the allegation
of attempting to murder one Balu Bachute and they were in the
jail for 2-3 months. To a query made by the Court he stated
that this arrest was after the incident of assault on Nashikrao.
He further stated that he had reached the Wada at about 9 p.m.
In about 5-10 minutes the incident had started.
ig Number of
improvements / contradictions were brought out by the defence
in the cross-examination of this witness. In the cross-
examination he reiterated that Nashikrao was assaulted by
accused no.1, accused no.3, accused no.5, accused no.8 and
accused no.10. This was again contrary to what PW 3 – Ashok
Shinde had stated in his depositions before the Court. In his
cross-examination he further stated that he was waiting in the
wada for the whole night and four police constables along with
the PSI had visited the wada around 3 a.m. but the PSI did not
ask him as to who had assaulted Nashikrao and how he died.
This was again contrary to what PW 18 stated before the Court.
17. PW 18 – Prakash Shinde – I.O., whose testimony has been
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dealt with earlier partly, is another witness of the prosecution
who damaged its case and made it unreliable. In fact, there is
something more which the defence counsel brought out in the
cross-examination of this witness so as to discard him as an
unreliable witness. He stated in his cross-examination that after
holding the inquest, the dead body was sent for post mortem
immediately to Mohol and about one hour would be required to
reach Mohol by jeep from village Aundi. During the period of
two hours that he spent at village Aundi, he had not recorded
the statement of anybody though he had taken four constables
with him. If the IO immediately on reaching the village came to
know of a cognizable offence, it was surprising that he did not
record the statement of any person despite spending two hours
around the dead body and he also wanted the court to believe
that he enquired from the inmates of the house as to who would
lodge the complaint and did not do anything further after he
was told that the police patil had gone to Mohol Police Station to
lodge the complaint. Though he gave the list of three injured
witnesses, the evidence of the doctors, examined and referred
to hereinabove, indicated that there were 6 to 8 injured
witnesses. It is, therefore, uncertain as to who was speaking
the truth before the trial court. He admitted in the cross-
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examination that when the statement of PW 4 – Jagannath
Bhuse was recorded by him, the said witness did not state
specifically that accused no.1 – Kerappa had told that they
should go up on the terrace and 2 to 4 persons from the other
side had gone to the terrace and others were pelting stones.
He had also recorded the statement of PW 6 – Ramrao Shinde
and he did not state before the IO that Jitendra would inflict
blow of spear on somebody. He also did not state specifically
that the persons remained on the ground, continued stone
throwing and that he went in front of the house of the police
patil and noticed that the door was closed. PW 18 further
admitted that he had recorded the statement of Harishchandra
Kashid – PW 14 and he did not state before him that accused
no.1 – Kerappa had threatened him that the accused would kill
him if he would refuse to tender the resignation. He further
stated that he recorded the statement of PW 15 – Tukaram
Shinde and he did not state while recording the statement that
the persons assembled after breaking the door of window had
threatened that they would go back from the rear side. He had
also recorded the statement of PW 16 – Vitthal Kamble and he
did not state while recording the statement that there were five
electric poles around the wada and that these poles were at a
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distance of 10-12 feet.
In his cross-examination, he stated that a register for
recording the telephone calls (incoming and outgoing) was
maintained at his police station along with the wireless register.
He admitted that wireless message was received by his police
station when he was not present. He claimed that he had made
an entry at station diary, but further clarified that after
returning from Aundi village at 7 a.m. he did not make any
trunk-call to his superiors and further stated that without
verification he was not able to state whether he had gave
wireless message to his superiors after returning from Aundi.
He was not aware whether the extract of entry of Sadar Bazar
Police Station regarding the admission of Janardhan Gore – PW
13 in the Civil Hospital at Solapur was produced before the
court (This was brought before the trial court by the defence).
He produced the extract of station diary of 22/8/1990 and
stated that he had not received any wireless message from
Sadar Bazar Police Station. He denied the suggestion that he
waited for the arrival of Apparao Shinde, Advocate, before he
recorded the complaint and proceeded to register it. He also
denied that the investigation carried out was influenced on the
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instructions of the said Advocate. He also stated that when he
handed over the investigation to Circle Police Inspector Shri
Dange – PW 27, all the investigation papers were handed over
to him, including the statement of PW 13 – Janardhan Gore.
17. There are two more police personnel who proved to be
got up witnesses before the trial court. PW 20 – Shri Bajrang
Digge was the police constable attached to Sadar Bazar Police
Station and on 22/8/1990 he was posted on duty at Civil
Hospital and two other police constables were working under
him i.e. Shri Patil and Shri Dhappadule. He had stated in his
examination-in-chief that on 22/8/1990 at about 6 to 7 a.m. he
had received the entry from Sadar Bazar Police Station about
the admission of PW 13 in the Civil Hospital. He was directed to
take further steps. Accordingly, he went to the Civil Hospital,
found that the patient was asleep, Medical Officer was not
present and, therefore, he made a second visit at 9 a.m. when
the doctor was available. After seeking the permission of the
doctor and his opinion that the patient was fit to give a
statement, he proceeded to record the statement of PW 13 and
he forwarded the same to Sadar Bazar Police Station.
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In his cross-examination, he admitted that his statement
was not recorded by the IO during the course of investigation,
which indicated that obviously he was not shown to be the
prosecution witness when the charge-sheet was filed. He could
not produce the yadi/entry received by him from the police
station but produced the statement of PW 13 at Exhs.106 and
107. PW 13 had purportedly stated that accused no.1 had
assaulted the deceased and he did not name any other
assailant. When this was put to PW 20 in his cross-examination
by the defence counsel, he volunteered to make a shocking
statement as under:-
"Janardhan Gore had made such statement
before me but it was remained to reduce into
writing by my writer."
In his further cross-examination, the defence proved that this
witness was a throughly dishonest policeman and produced by
the prosecution to fill in the loopholes in its case.
18. PW 19 – Shivaji Patil is another police officer who was
examined by the prosecution to fill in the gaps in its case. His
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statement was not recorded by the IO during the course of
investigation. He stated before the trial court that while he was
on duty from 8 p.m. on 21/8/1990 to 8 a.m. on 22/8/1990 at the
Civil Hospital, between 1 to 1.30 a.m. he was sitting in front of
the OPD Room No. 17 and he came to know that a patient from
village Aundi was admitted and he had received injuries on
account of assault on him between 8 to 8.30 p.m. at village
Aundi. He made enquiry with Shri Anil Gore, son of PW 13, who
was present in the hospital that his father was assaulted
between 8 to 8.30 p.m. by Rajan Uddhav Bhuse and three
others with axe and iron bars and he was further informed by
Anil Gore that he did not lodge any complaint. The further
statement, reading as under, brought through this witness in his
examination-in-chief indicated that the prosecution was trying
to fill in the gaps in its story:
“He had told that along with his father, brother
of Shinde Advocate and 2-3 persons in the
village has also been assaulted and brother of
Shinde Advocate might have gone to lodge the
complaint.
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When he was confronted with the entry at Exh. 103 as per
the telephonic message, he replied that name of Rajan Bhuse
was wrongly mentioned as Uddhav Rajan Bhuse. He further
stated that he was informed that with the permission of Shinde
Advocate his brother might have gone to lodge the complaint,
but the entry was made to the effect that Shinde Advocate had
gone to lodge the complaint. This attempt by the prosecution to
bring the so called clarification through this witness in his
examination-in-chief clearly indicated that the prosecution was
trying to distort as well as suppress the facts. PW 19 was thus
an unreliable witness examined by the prosecution.
19. There is one more issue i.e. regarding the availability of
power supply in the house of the complainant when the incident
had purportedly taken place there. Though we have discarded
the prosecution case that the deceased was assaulted in the
wada, it would be necessary to deal with this issue as the trial
court has recorded the finding in favour of the prosecution by
holding that the power supply was available and it was drawn
from the house of Vitthal Mane, who is the father-in-law of the
brother of the complainant. PW 16 – Vitthal Kamble was
working as a peon with the Village Panchayat of Aundi for more
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than 20 years and his duty included to switch on the electric
supply board (on the electric poles) after sunset. As per him
there were about 51 to 52 electric poles in the village and five of
them were around the wada of the complainant. Each pole had
a bulb of 100 watts and the height of the pole was between 25 –
30 ft. He stated that on the date of the incident, he had
switched on the electric poles after sunset and had switched off
the power supply on these poles after sunrise but in his cross-
examination he admitted that he had not stated before the
police that there were 51 to 52 electric poles and their height
was about 25-30 ft. It was also brought out that he had not
stated before the police regarding the availability of five electric
poles around the wada. He had also not stated before the
police that on the day of the incident he had switched on the
power supply and switched it off on sunrise on the next day. He
denied the suggestion that he was deposing as per the
instructions of Shri Apparao Shinde, Advocate. It is obvious that
he was an employee of the Village Panchayat and Shri Apparao
Shinde was the Sarpanch. The defence demolished his
statement in the examination-in-chief regarding the availability
of street lights in the night of the incident. Through the
evidence of PW 17 – Patalu Gaikwad, PSI, Akluj Police Station,
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the information received from MSEB at Exh. 98 was brought on
record. This letter at Exh. 98 addressed to the PSI of Mohol
Police Station indicated that between 3.20 p.m. to 4.20 p.m. on
21/8/1990 the power supply was not available from 11 KV sub-
station at Puluj. It further stated that power supply of village
Aundi on 21/8/1990 was not discontinued.
The defence examined DW 2 – Shrikant Awadhani who
was working as an Assistant Engineer at sub-division MSEB,
Mohol and village Aundi was under said sub-division. He stated
that Vitthal Mane was holding electric connection for domestic
purpose under No. R-10 and it was disconnected on 29/6/1990
on account of default in payment of electric supply. In support
of this statement, he produced the certificate at Exh. 162 and
the record at Exh. 163. He also stated that electric supply of
Trimbak Shinde was also discontinued. Shri Trimbak Shinde is
the father of the complainant and Shri Vitthal Mane is the
father-in-law of the complainant’s brother. In his cross-
examination this witness pointed out that despite the
disconnection of power supply, electricity bills were issued at
Exh. 164 to 167 in the name of Vitthal Maruti Mane. He further
clarified that average billing is made and electricity bills are
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issued even if the power supply is discontinued. In our opinion,
the trial court committed an error in reading the evidence of DW
2 -Shrikant Awadhani and in recording a finding that power
supply was available in the house of Vitthal Maruti Mane in the
night of 21/8/1990, though this finding, in our opinion, is
insignificant to decide the prosecution case. When the witness
specifically stated that the power connection was discontinued
in both the houses and he submitted the record in support of
the statements, the trial court could not have recorded the
finding merely on the basis of electricity bills that the power
supply was available.
20. Having discussed the entire material evidence, as placed
before the trial court by the prosecution as well as the defence,
we have no doubt in our mind that the prosecution case was
tainted, unreliable and continuous efforts were made to
suppress as well as distort the facts coming before the court.
The prosecution failed to prove beyond doubt that Nashikrao,
the brother of the complainant was done to death in his wada in
the night of 21/8/1990. The incident of assault had probably
taken place some where else and after quite some time his dead
body was brought and kept in the varanda of the wada where
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there was not a single blood spot noticed while drawing the spot
panchanama at Exh. 51. The whole prosecution story that
Nashikrao along with PW 13 – Janardhan Gore was present in
the room on the terrace of the wada between 9 to 9.30 p.m.,
that he was assaulted by the accused with weapons, he
sustained bleeding injuries, he walked down the staircase along
with PW 13 who also had received bleeding injuries and
Nashikrao collapsed in the varanda and died on the spot, is
totally unreliable and it did not inspire confidence. The trial
court failed to consider the evidence of the prosecution in its
right perspective and instead in a mechanical manner it
accepted the prosecution story implicating the present
appellants. In fact the prosecution contradicted its own case
and made it highly doubtful and unreliable and in such
circumstances the benefit of doubt must go to the accused.
Every single eye witness and the police official was proved to
be unreliable by the defence. To begin with, the investigation
carried out by PW 18 and PW 27 was slipshod and influenced
perhaps from out side forces. The material contradictions
brought out by the defence in the cross-examination of the so
called eye witnesses as well as the police officials made the
prosecution case most vulnerable and it was unlikely that PW 13
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– Janardhan Gore and the deceased Nashikrao were assaulted in
the same incident. PW 10 – Dr. Sharadkumar Patil is another
example of the prosecution witnesses distorting the facts and
making off the cuff statements while in the witness box. On the
one hand he stated that all the injuries that were seen on the
person of PW 13 were simple and on the other, he proceeded to
state that injury nos.1 to 4 could be dangerous to the life and
they were on the vital parts and their cumulative effect was
sufficient in the ordinary course of nature to cause death, in
case medical aid was not available. In fact the medical papers
at Exhibit 68 and the medical certificate at Exhibit 67 falsified
this statement made before the Court and the prosecution was
trying to improvise its case to prove the offence punishable
under Section 307 of IPC on the count of the purported assault
on PW 13, through this witness. The findings recorded by the
trial court, therefore, could not be supported by the evidence
adduced before it and in our considered opinion, the prosecution
failed to prove, beyond reasonable doubt, that the present
appellants were guilty of staging and inflicting an armed assault
on PW 13 – Janardhan Gore as well as Nashikrao in the wada
between 9.30 to 10 p.m. on 21/8/1990. Hence the order of
conviction and sentence impugned in this appeal deserves to be
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quashed and set aside.
21. In the premises, this appeal succeeds and the same is
hereby allowed. The order of conviction and sentence passed
against the appellants in Sessions Case No. 47 of 1991 by the
learned II Additional Sessions Judge, Solapur, on 6/3/1992 is
quashed and set aside and consequently all the appellants
stand acquitted in the said case. The bail bonds furnished by
the appellants stand cancelled.
(A.A. SAYED,J.) (B.H.MARLAPALLE,J.)
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