Bombay High Court High Court

Kerappa Narayan Bhuse vs The State Of Maharashtra on 7 June, 2010

Bombay High Court
Kerappa Narayan Bhuse vs The State Of Maharashtra on 7 June, 2010
Bench: B.H. Marlapalle, A.A. Sayed
                                       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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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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