TaxTMI 
TaxTMI 
2008 (1) TMI 1012
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....p of one Adhikrao Kadam and had canvassed against Sambhaji (accused No. 2) and his group in the Gram Panchayat Elections. Though A2 got elected, his group has defeated. Further Ganpat allegedly refused to transfer three Guntas of land in the village belonging to his family, as demanded by A2 Sambhaji. Consequently A2 and his supporters had a grudge against Ganpat and his family. A2 Sambhaji, as Chairman of the local co-operative society had withheld the issue of 'no-due' certificate to Ganpat and caused hardship to him. Prabhakar (accused No. 1 who died during the pendency of appeal) and Mohan (Accused No. 4) were brothers of Sambhaji (Accused No. 2). Appasaheb (Accused No. 3) was the cousin, and Prahalad and Mahadev (Accused Nos. 6 and 7) were the friends of Sambhaji. Shankar (Accused No. 5) was the servant of A1 Prabhakar. All the accused were also residents of the same village. There was simmering differences between the two groups. 2.2. At about 8 P.M. on 18.5.1988, Ganpat's son Shivaji was assaulted by the accused by catching hold of him and tearing his Banian near Jotiba temple. Putlabai, mother of Shivaji, rushed from her house which was nearby and took ....
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....of Ganpat, Putlabai, and Ananda (PWs, 12, 13 and 14) were recorded. During the search, IO found one bamboo stick in front of the house of A1 which was seized under Panchnama Ex. 35 in the presence of PW 3 & 4. The blood-stained clothes of PW12 Ganpat and PW9 Vilas were seized under seizure panchanama Exs.23 and 24. 2.5. In regard to the earlier incident near Jotiba temple that occurred at 8 P.M, Shivaji More, brother of A6 had lodged a complaint with Kole outpost on 18.5.1988 itself, alleging that Ganpat and his sons namely Vilas, Ananda and Shivaji along with others had caused rioting and assaulted him and his brother Tanaji More. The said complaint was passed on to Karad Police Station and registered as CR No. 151/1988. 2.6. On 26.5.1988, A2 Samabhaji and A3 Appasaheb were arrested in village Tulsan. Accused 5, 6 and 7 (Shankar, Prahlad and Mahadeo) surrendered on 1.6.1988. Accused 1 and 4 (Prabhakar and Mohan) had secured anticipatory bail and they were formally shown as arrested on 7.7.1988 and 16.7.1988 respectively. 2.7. On 29.5.1988, Sambhaji (A2) offered to give a statement. IO called PW5 and PW6 as witnesses. In their presence A2 made a statement....
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....e and members of the mob might have caused injuries to Ganpat and his family. 5. The trial court after appreciating the evidence, acquitted all the accused by its judgment dated 13.1.1995. The trial court found that all the panch witnesses (PW 5, 6, 7 and 8) examined in support of the alleged disclosures by accused A2 and A5, and all the panch witnesses (PW 3, 4, 5, 6, 7 and 8) in regard to alleged recovery of weapons, had turned hostile and did not support the case of the prosecution. Even the informant Vilas (PW9), brother of the deceased, did not support the case of the prosecution. The trial court found evidence of the father, mother and the two brothers of the deceased were full of contradictions regarding material aspects and particulars, which could not be brushed aside as minor inconsistencies. The trial court found an attempt to falsely implicate the accused in view of their previous enmity. The non-examination of any independent witnesses and neighbours and non-examination of Adhikrao Kadam were found to be significant omissions. It therefore, held that the prosecution had failed to prove that the accused were members of an unlawful assembly and committed a riot armed ....
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....the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt [vide G.B. Patel v. State of Maharashtra 1979CriLJ51 , Babu v. State of U.P. 1988 (2) SCC 21, Awadhesh v. State of M.P 1988CriLJ1154 , Thanedar Singh v. State of M.P 2002CriLJ254 , and State of Rajasthan v. Rajaram 2003CriLJ3901 ]. Keeping the said principles in view, we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High Court to interfere with the decision of the trial court. 7. We will first refer to the evidence regarding the alleged attack by the accused on the deceased Shivaji. 7.1. Vilas, brother of the deceased Shivaji, examined as PW9 did not say anything at all about the attack on Shivaji. 7.2. Ganpat (PW12), father of deceased Shivaji stated in his examination in chief that when Shivaji came into the courtyard all the accused rushed towards him; that accused A1 Prabhakar assaulted him with a sword on his head; t....
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....th axes, A2 and A3 with sticks but A6 and A7 were unarmed. In the cross examination he stated that all his family members were inside the house, that Shivaji went out first, thereafter his father went out, thereafter his mother went out and he came out last, and when he came out into the courtyard he saw his brother Shivaji running towards the bathroom. Obviously therefore he also did not see who assaulted Shivaji, as by the time he came out of the house, Shivaji was already running towards the bathroom. 7.5. Thus except Ganpat (PW12), none saw any of the accused attacking Shivaji. PW9 did not see anything; PW13 and PW14 could not have witnessed the attack on Shivaji as according to them, they only saw him running towards the bathroom. Ganpat who is the only person who could have witnessed the attack on Shivaji, says that A1 attacked Shivaji with a sword, both in his statement on 19.5.1988 and in his evidence. In regard to A2 to A5 apparently he did not say anything to police when his statement was recorded on 19.5.1988 but assigned them roles in the attack on Shivaji when he was examined in court. An analysis of the entire evidence thus shows there is only one eye-witness (PW12....
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....lawati) refer to a mob of villagers coming near Ganpat's house just before the incident (around 10 p.m.) and stones being thrown at Ganpat's house. The prosecution has not explained why the village crowd was furious with Ganpat and his family, why they threw stones at Ganpat's house and who were the members of the village crowd. DW1, however, categorically stated that none of the accused were part of the crowd/mob that threw stones at Ganpat's house. 8.2. The next is the strange behavior of Ganpat and his family. Putlabai (PW13) stated that her son Shivaji returned home at 8 P.M. after taking his meal in his friend's house, that he left thereafter to go to his shop, she heard a hue and cry, went out and found Shivaji near Jotiba Temple with his Banian torn, tells him not to quarrel and brings him back to home and confined him in a room so as to prevent him from going out again and bolted the door of the house. Ganpat (PW12) stated that on 18.5.1988 he returned home at about 8 P.M, saw the accused standing in front of his house and suspected danger, so made his escape and went to his house by another way. (But he admitted that there is only one entrance to the....
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....he cattleshed and bathroom adjoined the front courtyard and the distance is hardly a few feet). But Ganpat states in the examination in chief that when accused attacked Shivaji, "Shivaji fell down" and "Shivaji met with death instantaneously". In his cross examination, he said "Shivaji died on the scene of offence itself. I saw the incident by standing in the courtyard of my house." This contradicts the evidence of his wife and his son Ananda that Shivaji on being assaulted, ran towards the bathroom. Ganpat says that after Shivaji fell down, he (Ganpat) was attacked, his wife and son Ananda were attacked and in the meanwhile Adhikrao Kadam arrived in a jeep and seeing him all the accused escaped from the place. He further states that he along with his son Vilas were taken by Adhikrao Kadam to Krishna hospital Karad for treatment. He also says that when going to the hospital, he asked his wife Putlabai and son Ananda to stay back at home. Therefore when Ganpat and Vilas left for the hospital, Shivaji was lying in the courtyard, obviously in coma or dead. He was not taken to hospital. When the IO came about 3 hours later at about 1.30 a.m. on 19.5.1988, the body was not in the courty....
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....ke Shivaji to hospital. Even Putlabai and Ananda who remained in the house, did not verify what happened to him. When the IO came around 1.30 pm in the early morning of 19.5.1988 he did not find the body of Shivaji nor did he find Putlabai and Ananda at home. But when Investigating Officer returned around 6 pm on 19.5.1988 along with Ananda and while drawing the spot panchnama, he found the dead body of Shivaji mysteriously lying in the bathroom. The postmortem report and the evidence of Dr. Solanki (PW11) who conducted the postmortem shows that the cause of death was "coma and death due to skull injury with heart injury." As per the postmortem report, the death was within two hours from taking the last meal and Putlabai says that the last meal was taken by Shivaji before 8 pm. Therefore it is evident that Shivaji did not go out after the injuries or come back later to die in the bathroom. He died around 10 p.m. which was when the incident occurred. But if the statement of Putlabai and Ananda that they had seen Shivaji running towards the bathroom was true, does it mean that he was not seriously injured then? Significantly Putlabai stated in her cross-examination that she came to k....
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....r and brother who did not bother about Shivaji and left him unattended. This, is not a natural reaction. We conclude that the answer is not that the conduct of PWs. 12, 13, and 14 was strange, but the facts were otherwise than what is put forth by the prosecution, thereby demonstrating the falsity of the prosecution case. 8.6. The next strange circumstance is the non-examination of Adhikrao Kadam or any neighbour of Ganpat. Ganpat and his family worked for Adhikrao Kadam in the Panchayat election and against A2 Sambhaji. Thus it is obvious that Adhikrao was the leader or important member of the group to which Ganpat and family belonged, which was fighting against A2's group. There was an attack by a mob at 8 p.m. against Shivaji and, again an attack by the mob by throwing stones at Ganpat's house at 10 pm. PW13 Putlabai stated in her evidence that 'many persons from our village rushed in a crowd towards our house throwing stones in the direction of the house'. This is reiterated by PW14 Ananda who stated that 'some persons threw stones at our house'. Why was the stone throwing by the villagers, is not explained. But Adhikrao Kadam appears in his jeep arou....
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....bled in front of the house of Ganpat throwing stones. Even if her evidence is discounted, the several strange unexplained circumstances referred to above, cannot be brushed aside either as minor inconsistencies or omissions in evidence. The evidence clearly shows that an attempt has been made by PWs. 9, 12, 13 and 14 to implicate all the accused or at least accused 2 to 6 for the death of Shivaji and attack on PW 9, 12, 13 & 14 on account of previous enmity. It is also evident that Vilas got cold feet, did not go along with family and denied any knowledge when he was examined in court. On the facts and circumstances, there was absolutely no justification for the High Court to interfere with the decision of the trial court. The learned Counsel for appellants drew our attention to several other inconsistencies in the evidence of PWs. 9, 12, 13 and 14. As they are minor, we do not propose to examine them. 10. Learned Counsel for respondent submitted that there was nothing strange about Ganpat going with Adhikrao Kadam in his jeep for treatment immediately after the incident without verifying what happened to his son Shivaji, even though he had been subjected to a murderous attack a....
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....ice that they would not sign a false panchnama, the police threatened and obtained their signatures to the memorandum of statement and panchnama. Similarly the prosecution alleged that A5 Shankar made a statement in the presence of panch witnesses PWs.7 and 8 (S.J. More and M.H. More) that he had kept concealed an axe and a sword beneath bamboo shrubs and that he took them to that place and the said articles were recovered in the presence of the said Panch witnesses; the statement of A5 was recorded in the form of a memorandum (Ex. 40) and the articles recovered from the place of concealment by A5 were seized under panchnama (Ex. P-40A). But PW7 and PW8 turned hostile and stated that they did not know A5 and he did not make any statement before them, that he did not lead them to any place, nor was the axe and bamboo stick recovered and seized by the police in their presence. They stated that they had signed Ex.40 and 40A at the instance of police. Therefore the entire evidence regarding recovery of weapons at the instance of the accused 2 and 5 will have to be rejected. Similarly, the recovery of a stick in front of the house of A1 is also not proved as the panch witnesses (PWs. 3 ....