STATE OF MAHARASHTRA Vs. SADASHIV @ BALA GUNDU PATIL

JUDGEMENT

(1.) THE State of Maharashtra aggrieved by the Judgment and order 18-9-1981, passed by the Additional Sessions Judge, Greater Bombay. In Sessions Case No. 360/1980, acquitting the respondents, under section 302 r/w 34 IPC and section 307 r/w IPC, has come up in appeal before us. It may be mentioned that against the Respondent no.1 Sadashiv & Bala Gundu Patil, appeal has order dated 24-2-1986, passed by a Division Bench <DJG> OF THIS COURT COMPRISING OF JAHAGIRDHAR AND TATED, JJ.</DJG>

(2.) BRIEFLY stated the prosecution case as follows:- On 1-6-1980, at about 10.30 p.m. P.W. 5 Shantaram Kadam was watching a movie on TV at the hut of PW 9 Mukund Rane situate in Shakti chawl, Sakinaka, Bombay. The deceased Khandoo Wagule was also standing by Shantaram's side and watching the movie. Mukund Rane is also alleged to have been watching the movie. Mukund Rane is also alleged to have been watching the movie. At the said time he, Shantaram and Laxman Sawant who is alleged to have been proceeding for his house, after eating paan, heard shouts "Dhara, pakda, mara". On hearing the shouts, they turned their backs and saw that respondent Sadashiv Patil had a knife in his hand, respondent Anil Hodawadekar had a iron pipe in his hand, respondent Alex Rodrigues and David Mobin had iron bars in their hands. Immediately, thereafter, the respondent Sadashiv assaulted Shantaram with knife on his upper leg and on his chin. Respondent Anil assaulted Shantaram on his left shoulder; and Respondents Alex and David are alleged to have assaulted Shantaram on his right thigh and right hand respectively. The assault was made by the said respondents with weapons they were having. It is said that Khandoo Wagule tried to intervene and caught hold of the iron pipe which was in the hands of Anil. His attempt was thwarted by the fact that all the respondents ran at him. Thereafter, Wagule started running towards his room, and while running, he was caught by the respondents. Respondent Anil assaulted him on the back of his head, resulting in his falling down. Thereafter, respondent Sadashiv Patil assaulted him on his stomach and other two respondents also him. Khandoo Wagule was also assaulted by the respondents with the weapons with which they are said to be arm. After assaulting Shantaram and Wagule, respondents are said to have runaway. After the assault, Shantaram asked his brother Jayant to get a taxi and in the same, Shantaram, Khandoo Wagule, Rane, and Sadanand Sawant proceeded to Rajawadi Hospital. In Rajawadi Hospital, Khandoo Wagule was found to be dead by the doctor.

(3.) , 5, 9 and 12 respectively were examined as eye witnesses. In defence, one witness namely PW 1 constable lad was examined. He was examined to prove the EPR entry Exhibit 68D. The learned trial Judge after assessing the evidence on record and hearing the learned counsel for the parties, took the view and rightly in our judgment, that the prosecution has failed to bring doubt and hence, acquitted them. 11. Feeling aggrieved by the said acquittal of the respondents, the state of Maharashtra has filed this appeal. 12. We have Mr.R.P.Bohere, Additional Public Prosecutor for the State of Maharashtra-Appellant and Mr.N.D.Shetty learned counsel for respondent nos. 3 and 4. It may be mentioned that appeal against respondent no.1 Sadashiv & Bala Gundu Patil was dismissed for non-prosecution by a Division Bench of this Court and the respondent no.2 though served, has not chosen to engage a counsel. We have perused the material Exhibits, tendered and proved by the prosecution ; the evidence of the prosecution witnesses, evidence of constable Lad DW 1; statement of the respondents recorded under section 313 Cr.P.C.; and the impugned judgment. We are squarely satisfied that the learned trial Judge acted correctly in recording the impugned judgment. 13. At the outset, we would like to emphasise that we are seized of the matter in an appeal against acquittal Although the Code of Criminal Procedure draws no distinction between the powers of Appellate Court. In an appeal against acquittal from these in an appeal against conviction it is settled by a catena of decisions starting from AIR 1934 Privy Council page 227 Shivswaroop V/s King Emperor, that the Appellant Court should be slow in disturbing a verdict of acquittal, the Additional Court would only be justified in interfering if the view of acquittal either on law is legally untenable or on facts is grossly unreasonable. It is well-settled that where two views are possible, and the trial Court does not interfere inspite of the fact that had it been the trial Court. It would have taken a different view. We are fortified in our observations by the decisions of the Apex Court reported in AIR 1971 Supreme Court page 66, Khedu Mohtan V/s State of Bihar and AIR 1987 Supreme Court page 1983 Totaram and another V/s State of Punjab. 14. It is bearing in mind this angle of approach that we have to examine whether the impugned judgment of acquittal of the respondents, can be interfered with. The crucial question is this appeal is whether the evidence of the four eye-witnesses namely Laxman Kadam, Shantaram Kadam, Mukund Rane and Laxman Sawant, PWs 4,5,9, and 12 respectively inspires confidence or not? We would first like to take up the evidence of Shantaram Kadam, Mukund Rane and Laxman Sawant. It is on the basis of the averments contained in their examination-in-chif that we have set out the prosecution story in para 2 of our judgment. In our view, no useful purpose would be served by repeating it. However, we would like to highlight certain aspects in their evidence which in our judgment, create a dent in their veracity and truthfulness. All the three eye witnesses have categorically stated that the respondents with a knife assaulted the deceased Khandoo Wagule on his stomach. In the earlier part of out judgment, we have mentioned the ante-mortem injuries sustained by the deceased and we have no reservations in observing that we find that the Autopsy Surgeon Dr.Ruikar PW 18 has stated that injury no.4 which was a abrasion on right iliac fossa could be caused by a knife if the same brushed against that part of the body but, we are not prepared to accept his statement. Evidence of these eye-witnesses is that pursuant to the assault made by the respondent Anil Hodawadekar, with iron pipe, Khandoo Wagule fell down and thereafter, he was assaulted by respondent Sadashiv with a knife. In other words, while Khandoo Wagule was lying down on the ground, the said assault with a knife was made. In such a situation, in our view, if the respondent Sadashiv did assault Wagule, with a knife, there should have been either a stab injury or an incised injury depending on the manner in which the knife was used on his person. The absence of 'stab or' incised injury circumstances introduces an antagonism between the ocular account and the medical evidence. This story of assault by a knife may be a figment of imagination of these eye-witnesses. However, this is not the only reason for us to disbelieve the evidence of these three eye witnesses. We have firmer and more solid reasons to disbelieve their evidence of the three eye witnesses. 15. As said earlier, after Shantaram Kadam's admission in Rajwadi Hospital on 1-6-1980 at 11.45 p.m. in the Emergency Police Registeran entry was made by constable Lad, DW 1, on the information given by Shantaram. The said entry is Exhibit 68 D and we find that it completely destroys the prosecution case. In the said entry. It has been mentioned that the incident took place at the house of Shantaram and Khandoo Wagule. It has also been mentioned therein that is not known as to who had assaulted the deceased Khandoo Wagule. An analysis of the said entry shows that how the deceased was assaulted was not known. In our view, the said entry is compatible with only one inference which is that on the place of the incident, there was darkness and hence, assailants of the deceased could not be recognized. The said entry completely destroys the veracity of the star witness of the prosecution, Shantaram, the injured eye-witness as also that of the other witnesses. In the trial Court, he and deceased Shantaram had the cheeks to describe the assault on the deceased in a most graphic manner by the four respondents. Exhibit 68 D is not the only reason to reject the testimony of Shantaram. more follow. 16. The evidence of Shantaram Kadam, PW 5 also does not inspire confidence for the reasons mentioned hereinafter: