Bombay High Court
Mohan Ganpati Sathe vs The State Of Maharashtra on 25 July, 2016
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.59 of 2007
Mohan Ganpati Sathe
Age:-50 years, Occ:- service
R/o. Durgalwadi, Tal:- Koregaon,
Dist.-Satara.
(At present lodged in Kolhapur
prison, Kolhapur)
...Appellant
Versus
The State of Maharashtra ...Respondent
ig WITH
CRIMINAL APPEAL NO.110 OF 2007
1) Rajendra Baban Chavan
Ag:21 years, Occ:- Agriculturist
2) Popat Bapu Maskar
Age:- 35 years, Occ:- Agriculturist
3) Sambhaji Mohan Sathe (Jadhav)
Age-18 years, Occ:- Agriculturist
4) Baban Ramchandra Chavan
Age- 50 years, Occ:- Agriculturist
5) Sanjay Vilas Jadhav,
Age-17 years, Occ:- Agriculturist
6) Dilip Dagadu Jadhav,
Age-44 years, Occ:- Agriculturist
All applicants Nos.1 to 6 are r/o.
Durgalwadi, Tal. Koregaon,
...Appellant
Dist.-Satara.
Versus
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The State of Maharashtra ...Respondent
.....
Mr. Rajiv Patil, Sr. Advocate with Ms Priyanka S. Thakur i/b.
Mr. Sanjeev P. Kadam with Mr. R.P. Hake-Patil for Appellant in
Criminal Appeal No.59 of 2007
Mr. Sanjeev P. Kadam, with Mr. R.P. Hake-Patil for Appellants
in Criminal Appeal No.110 of 2007.
Mr. H.J. Dedia, APP for the Respondent -State.
Coram :SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ
JUDGMENT RESERVED ON : 30th March, 2016
JUDGMENT PRONOUNCED ON:
JUDGMENT [PER SMT. ANUJA PRABHUDESSAI, J.]:
These appeals arise from judgment dated 29.12.2006
passed by the learned Additional Sessions Judge, Satara in Sessions
Case No.53 of 1998. The appellant in Criminal Appeal No.59 of 2007
was the accused No.1 whereas the appellants in Criminal Appeal
No.110 of 2007 were the accused Nos.3 to 8 in Sessions Case No.53 of
1998 and shall be hereinafter referred to as accused- as arrayed before
the trial court.
2. The aforesaid accused along with one Shivprasad Sathe
(accused No.2) were tried for offences punishable under sections 147,
148 and 326 r/w. 149 of the IPC. The accused No.1 was also charged
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for offence punishable under sections 302 and 307 of the IPC and
section 30 of the Indian Arms Act.
3. By the impugned judgment the learned Additional Sessions Judge has
convicted and sentenced the accused as under:
(i) accused No.1 guilty of offence under sections 302 and
307 of the IPC and section 30 of the Indian Arms Act.
The accused No.1 has been sentenced to undergo
rigorous imprisonment for life and fine of Rs.2000 i/d.
simple imprisonment for three months for the offence
punishable under section 302 of the IPC, RI for 7 years
and fine of Rs.2000/- i/d. SI for three months for
offence punishable under section 307 of the IPC and RI
for six months and fine of Rs.1000/- i/d. SI for two
months for offence punishable under section 30 of the
Indian Arms Act.
(ii) The accused Nos.1 and 3 to 8 have been held guilty of
offence punishable under section 325 r/w. 34 of the
IPC and have been sentenced to suffer RI for 5 years
and fine of Rs.1000 each i/d. to undergo SI for 1
month.
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(iii)The accused No.2 has been acquitted in respect of all
the charges.
4. Being aggrieved by the conviction and sentence the accused
Nos.1 and 3 to 8 have preferred the aforesaid appeals. The accused
Nos. 6 and 8 died during the pendency of the appeal. Consequently by
order dated 1.2.2016, the appeal against these two accused is held to
be abated.
5.
The prosecution case in short is as under :-
The accused Nos.1 and 3 to 6 are related to each other and
accused No.8 is the uncle of accused No.7. The deceased Manik was
the son of Bajrang and the brother of the complainant-PW6 and PW11.
PW8 is their paternal uncle and PW10 is a friend of PW6. The accused
as well as the deceased Manik, PW6-Sambhaji Yadav and the eye
witnesses- viz. PW8-Shankar Yadav, PW10-Mahendra Gadekar and
PW11-Pandharinath Yadav are the residents of Durgalwadi, Taluka-
Koregaon, Dist.-Satara. According to the prosecution on 17.11.1997,
the accused Nos.3, 4 and 5 assaulted PW-10 Mahendra for having
teased the sister of accused no.3 Rajendra. PW-10 told the accused
that he was not involved in any such incident. He also apologised to
the accused for preconceived misunderstanding, if any. PW-10 narrated
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this incident to his friend PW-6- Sambhaji on the same day. PW6 told
PW-10 to forget the incident since he had already apologised.
6. On 19.11.1997 at about 8.00 p.m. PW-6 and PW-10 went to
a Pan shop and thereafter sat at Janai Devi Temple till about 9.00 p.m.
While they were returning home and had reached near the house of
Hanmant Desai, they heard some people saying "hana mara" (thrash /
assault). They turned back and saw accused Nos. 3 to 8 advancing
towards them armed with gupti, cycle chain, sticks, etc. The accused
Nos. 3 to 8 assaulted them and took them to the rear side of the house
of Hanmant Desai. The accused also assaulted Bajrang, Shankar (PW-
8), Pandharinath (PW-11), and Manik (the deceased), who had come
to the place of the incident on hearing the shouts of PW-6 and PW-10.
7. In the meantime, the accused No.1 came near the place of
the incident with a gun and that he fired a gun shot at Manik. Said
Manik sustained injuries and fell on the ground. The accused No.1 fired
another gunshot in the direction of Pandharinath and thereby
attempted to cause his death. The accused thereafter left the place of
the incident. PW-6 Sambhaji and PW-8 Shankar took the injured to the
hospital.
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8. PW13-Ishwar Sutar, A.P.I., who was on duty at Rahamatpur
police station, received a phone call from the police patil of Durgalwadi
that some people were involved in an incident of assault and requested
him to send the police force. PW13 made an entry in the station diary
and proceeded to Durgalwadi alongwith the police staff. On reaching
the place of incident, he learnt that there was an incident of firing and
that the injured persons were already shifted to the Civil Hospital,
Satara. He posted two constables to guard the scene of offence and
proceeded to the civil hospital, Satara. He learnt that one of the
injured persons- Manik Yadav was declared dead. He recorded the FIR
at Exh.58 as narrated by PW-6-Sambhaji Yadav. Pursuant to the said
FIR PW-13-Sutar, A.P.I. registered Crime No. 55 of 1997 for offences
punishable under sections 143, 147, 148, 302, 307, 326, r/w. 149 of
the IPC and section 30 of the Indian Arms Act.
9. PW13- Sutar, A.P.I. conducted the inquest panchanama at
Exh.45 over the body of Manik and referred the body for post mortem.
PW-9, Mr. Suresh Shinde, Medical Officer at the Civil Hospital, Satara,
conducted post mortem on the body of Manik Yadav and prepared the
autopsy report (Exh.69). Manik yadav had following external and
internal injuries:-
External injuries :-
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(1) Penetrating wound, 6 in Nos. over epigastric region
in 3 horizontal lines. The penetrating wounds were 3
entry wounds on top, 2 in the middle and one at the
bottom. Each penetrating wound was circular in shapre
and measuring 1 cm in diameter. Its edges were ragged
and burn out. Directions were upwards and posteriorly
towards right side.
(2) Wounds of exit on back :- 5 in numbers, elliptical,
present on the back over 10 th and 11th rib on right side
lateral aspect, blood oozing present, hard pellet held
below the skin in the above area, each wound was
measuring 1 cm x1/4 cm. Though penetrating wounds of
entry were 6 in numbers wounds of exit were 5 in
numbers only, because one pellet was found in the body
below the skin.
Internal injury :-
(i)Thorax-
(a) Walls, ribs, cartileges, -injuries as mentioned in column
No.17 of the P.M. report.
(b) Plura:- Plural cavities contains blood around the litre.
(c) Heart with weight- let chamber of heart empty.
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(ii) Abdomen:-
(a)Peritoneum- Peritoneum contain blood around 2 litre.
(b) Liver- Place both lobes of liver ragged and torn in
pieces.
(c) Kidney- Right kidney ruptured at the upper portion
and middle part.
He has opined that the said injuries were ante mortem and
cause of death was due to shock and hemorrhage as a
result of rupture of liver and right kidney due to firearm
injury.
10. PW6-Sambhaji Yadav, PW8-Shankar Yadav and PW10-
Mahendra Gadekar were treated in the civil hospital at Satara whereas
PW-11 Pandharinath was subsequently referred to Sasoon Hospital,
Pune for further treatment. PW9-Dr. Suresh Shinde had conducted
medico legal examination of the injured viz. Bajrang, PW6- Sambhaji,
PW8-Shankar, PW10-Mahendra, PW11-Pandharinath and issued injury
certificates at Exhs.64 to 68. The injured were found to have following
injuries :-
Injuries sustained by Bajrang:-
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(1)Incised wound over occipital region, oblique, bone deep
measuring 10x3x2 cms. with a fracture of bone underneath.
The said injury was caused by sharp object within 6 hours.
Injuries sustained by PW-6 Sambhaji :-
(1) CLW over right index finger, lateral aspect, 2 x 2 cms.
(2) Contusion over right temporal region 5cm in diameter.
(3) contusion over frontal, dorsals aspect, 3 cm. in diameter.
(4) CLW over left upper arm, medial aspect, 2x1x 1/2 cm.
All the injuries were caused by hard and blunt object within 6
hours.
Injuries sustained by PW-8 Shankar:-
(1) Incised wound on right side of back at the level of 11th rib
measuring 5x 2 cm, muscle deep and bleeding.
(2) Contusion on right shoulder 2x2 cm.
These injuries were caused by sharp object within 6 hours.
Injuries sustained by Mahendra PW-10:-
(i) Interrupted linear abraison over left forearm 10 cm in
length.
(ii) contusion over right temporal region.
The injuries were caused by hard and blunt object within 24
hours.
Injuries sustained by Pandharinath PW-11:-
(1) CLW / clean incised wound over lateral aspect of chest
7x5x2 cms. lung parenchyma deep
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(2) Contused lacerated wound over left forearm.
(3) Contused lacerated wound over forehead above left
eyebrow 2x1 cm scalp deep.
11. On 20.11.1997 PW13-Sutar, A.P.I. proceeded to the place of
the incident and prepared the scene of offence panchanama at Exh.52
in presence of PW3- Murlidhar Kale. The place of the incident was
behind the house of Hanmant Desai. There were bloodstains at the
place of the incident. Some wooden sticks, pair of slippers, gupti, cycle
chain, empty cartridge etc. were lying at the place of the incident. All
the incriminating material found at the place of the incident was seized
under the said panchanama.
12. PW-13-Ishwar Sutar, A.P.I. arrested the accused on the same
date and seized their clothes under panchanama at Exhs.96 to 100. He
also seized the gun and cartridges handed over by the accused no.1
under panchanam at Exh.49 drawn in presence of PW-1 Mansingh
Pawar. The statements of the witnesses came to be recorded and all the
incriminating material was forwarded to CFSL, Nagpur for chemical
analysis. The said articles were examined and analysed by the
chemical analyser PW-12 Cahndrashekhar Kshatriya. He submitted the
report at Exh.90 stating that the double barrel shot gun which was
received in sealed condition from Rahamatpur police station was in
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working condition and was used for firing prior to the receipt in
laboratory. He had further opined that the empties (Exhs.3 and 4)
were fired from 12 bore shotgun ( Exh.1).
13. Upon completing the investigation PW-13 submitted the
charge sheet against the aforesaid accused. The case being sessions tri-
able, the same was committed to the court of sessions at Satara.
Charge was framed and explained to the accused. The accused pleaded
not guilty and claimed to be tried. The prosecution examined 13 wit-
nesses, including the injured witnesses viz. PW6- Sambhaji Yadav, PW 8
-Shankar Yadav, PW10-Mahendra Gadekar and PW11-Pandharinath Ya-
dav. The statements of the accused came to be recorded under section
313 Cr.P.C. The accused filed statement under section 233(2) of Cr.P.C.
and examined 5 defence witnesses.
14. The defence of the accused is that Mahendra- PW-10 was
involved in eve teasing the sister of the accused No.3 Rajendra Chavan.
On 17.11.1997, PW10 sent a message to the sister of Accused No.3-
Rajendra Chavan, asking her to come to the house of Vijay. She
informed her brother and parents about the same. The accused No.3
and his mother brought this fact to the notice of mother of PW-10.
Aggrieved by this, on 18.11.1997 Mahendra Gadekar (PW-10) and his
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friend Prashant Jawal quarreled with the accused No.3 Rajendra
Chavan and accused No.5 Sambhaji Sathe.
15. The accused have further claimed that on 19.11.1997 PW-
10 Mahendra, PW-6-Sambhaji Yadav and his father, uncle and brothers
viz. Bajrang, Shankar, Pandharinath and Manik followed accused No.3
Rajendra and accused No.5 Sambhaji till the house of Hanmant Desai
and assaulted them with deadly weapons such as axe, cycle chain,
gupti, sticks, etc. It is stated that on hearing their cries the accused
No.1 went to the place of the incident with the gun. It is further stated
that PW11 Pandharinath and the other injured witnesses assaulted the
accused No.1. The accused no.1 has denied having fired the gun at
Manik. He has claimed that he was assaulted by PW8-Shankar and
PW11-Pandharinath, as a result he fell down and that the gun fired
accidentally while PW8 Shankar tried to snatch the gun from his hand.
The accused No.1 had also lodged a cross complaint against the injured
witnesses, pursuant to which crime No.54 of 1997 was registered.
16. Upon considering the evidence on record, the learned
Sessions Judge convicted and sentenced the accused as stated above.
It may be mentioned here that by judgment and order dated
29.12.2006 passed in Sessions Case No.66 of 2002 arising from the
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cross complaint filed by accused No.1, the learned Judge has acquitted
all the injured persons from offences punishable under sections 143,
147, 148, 149, 323, 324, 504 and 506. The accused have challenged
the said order in appeal No. 161 of 2008.
17. Mr. Patil, the learned senior counsel for the Appellant has
submitted that the prosecution has suppressed the fact that DW-1 PSI
Maneri attached to Satara police station had already recorded the
statement of PW6 prior to the registration of the FIR at Exh.58. He
therefore, claims that the report at Exh.58 cannot be construed as FIR
under section 154 of Cr.P.C. and consequently the case could not have
been investigated on the basis of the said statement at Exh.58.
18. The learned senior counsel has submitted that the evidence
of the witnesses suffers from material contradictions and omissions.
The evidence of the witnesses is not consistent and hence, cannot be
relied upon. Mr. Patil, the learned senior counsel has submitted that
accused no.1 had gone to the place of the incident on hearing cries of
the other accused persons who were being assaulted by the prosecution
witnesses. He has submitted that the accused No.1 did not have any
intention of causing death of Manik Yadav or firing gunshot at any
other prosecution witnesses. He has submitted that the said firearm
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was accidentally discharged when the prosecution witness had tried to
snatch the gun from the hands of accused no.1. Mr. Patil, the learned
senior counsel has further submitted that the evidence of PW9 also
indicates that the track of the pellets was in upward direction, which
fact proves that the injury could have been caused due to an accidental
mishap. He has submitted that the medical evidence as well as the
evidence of ballistic expert supports the defence of accidental death.
19.
The learned senior counsel for the appellants has submitted
that the prosecution has not explained the injuries sustained by the
accused. He has further submitted that the prosecution has also not
proved that the accused were aggressors. He has submitted that
prosecution witnesses have suppressed the material facts and having
failed to explain the genesis of the incident, the prosecution story
cannot be believed.
20. Mr. Dedia, the learned APP has submitted that the case of
the prosecution rests on the testimony of the eyewitnesses, who were
also injured in the said incident. He has submitted that these injured
witnesses had no reason to falsely implicate the accused and to shield
the real culprit. He has further stated that the accused No.1 had gone
to the place of the incident armed with a loaded gun and that the
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testimony of the injured witnesses proves beyond reasonable doubt
that he had fired two gun shots. He has submitted that the story put
forth by the accused No.1 that it was a case of accidental firing is
negated by the evidence of the eye witnesses. The learned APP further
submitted that the testimony of the injured witnesses cannot be
disbelieved on the basis of some minor omissions or discrepancies. He
has further submitted that the injuries sustained by the accused were
minor and that non explanation of such injuries is also not a ground to
outright reject the evidence of the prosecution witnesses. He has relied
upon the decision of the Apex Court in Mrs. Shakila Khader And Ors.
vs Nausheer Cama And Ors.1975 4 SCC 122 and Sucha Singh and
Anr. Vs. State of Punjab, (2003) 7 SCC 643.
21. We have perused the records and considered the
submissions advanced by the learned counsel for the Appellants and
the learned APP for the Respondent-State.
22. At the outset, it may be mentioned that the present case
was registered on the basis of the FIR at Exh.58, lodged by PW-6
Sambhaji. Relying upon the testimony of DW-1 API, Maneri, the
learned senior counsel Shri Patil has submitted that the report at Exh.
58 was not first in point of time and hence cannot be construed as FIR.
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It is pertinent to note that the incident had occurred on the night of
19.11.1997. The testimony of PW-13 reveals that he had received
information about the said incident at about 9.30 p.m. and thereafter
he had proceeded to the place of the incident. Upon being informed
that the injured were shifted to the hospital, he proceeded to the
hospital and recorded the FIR at Exh.58 lodged by PW-6 Sambhaji.
PW-13 thereafter returned to the police station and registered the
crime No.55 of 1997 on 20.11.1997 at about 2.00 a.m. PW13- Sutar,
A.P.I. has admitted in his cross examination that API Maneri had
recorded the statement of PW-6-Sambhaji Yadav and other witnesses.
He was however, unable to state whether the said statements were
recorded before he had reached the hospital. He has stated that he
had received the said statements subsequently. He has denied the
suggestion that he was aware that API Maneri had already recorded
the statement of the complainant before he had visited the hospital.
23. The evidence of DW-1 API Maneri reveals that on
19.11.1997 he was on duty at Sadar Bazar police chowki, Satara. He
had received information from PSO of Wakade police station, Satara,
that one person had died in a firing incident within the jurisdiction of
Rahamatpur police station. He was further informed that the other
injured persons were admitted in the civil hospital at Satara. The
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testimony of this witness reveals that he had visited the civil hospital
and recorded the statement of PW-6 Sambhaji and the other injured
persons and had requested the executive magistrate to record the dying
declaration of the injured persons.
24. It is pertinent to note that DW-1 Maneri had recorded the
statement of PW-6 Sambhaji on 20.11.1997. The said statement does
not bear any endorsement indicating the time at which it was
recorded. DW-1 was unable to state the time at which he had recorded
the said statement. He has admitted in his cross examination that
there is no evidence to show that the statements recorded by him were
prior in point of time. He has admitted that he had not registered the
crime / FIR on the basis of the statement of PW-6 Sambhaji Yadav. He
has admitted that there was no hurdle to register the crime by zero
number and to forward the same to Rahamatpur police station. He has
admitted that if the crime is registered in respect of any offence then
the other police station cannot register the crime under zero number.
25. It is pertinent to note that the incident had taken place
within the jurisdiction of Rahamatpur police station. At the relevant
time PW-13 PSI Sutar was on duty at Rahamatpur police station. On
being informed about the incident he had visited the hospital and
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recorded the statement of PW-6 Sambhaji Yadav pursuant to the said
FIR (Exh.58) he registered the crime No.55 of 1997. Though DW-1,
who was attached to Satara City Police Station, had also recorded the
statement of PW-6 Sambhaji on the same day, there is no evidence on
record to prove that the said statement was prior in point of time.
Furthermore, DW-1 had neither forwarded the statement to
Rahamatpur police station nor registered any crime on the basis of the
statement recorded by him. Under the circumstances, the said
statement cannot be construed as FIR under section 154 of the IPC.
Consequently, there was no legal hurdle to investigate the case on the
basis of the FIR at Exh.58.
26. Now coming to the charges levelled against the accused
no.1, it is the case of the prosecution that on 19.11.1997 at about 9 to
9.30 pm, while accused no.3 to 8 were assaulting Pw10 and PW6 and
his family members, the accused no.1 came to the place of the incident
armed with a gun and fired a gun shot at Manik and another gunshot
in the direction of PW11 Pandarinath and thereby committed murder
of Manik and attempted to commit murder of Pandarinath. It is
pertinent to note that the accused no.1 has not disputed having gone to
the place of the incident with a loaded gun. The accused have also not
disputed the fact that Manik died as a result of a single gunshot injury
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in an incident of 19.11.1997. The only controversy is whether the
accused No. 1 had fired the shot-gun at the deceased Manik or whether
the gun went off accidentally while PW6 and PW8 tried to snatch the
gun from the accused no.1. Thus, in the light of these facts and the
specific defence raised by the accused, the question that falls for
consideration is whether the death of Manik was homicidal or
accidental.
27.
The prosecution in support of its case has examined the
injured witnesses viz. PW6- Sambhaji Yadav, PW-8-Shankar Yadav,
PW10-Mahendra Gadekar and PW11-Pandharinath Yadav whose
presence at the place of the incident is not seriously disputed. The
testimony of PW6-Sambhaji Yadav reveals that a couple of days prior to
the incident his friend-PW10-Mahendra Gadekar had informed him
that the accused had assaulted him for eve teasing the sister of the
accused no.3. Pw10 had denied having indulged in such incident and
apologized to the accused for preconceived misunderstanding if any.
PW6 had told PW10 to forget the incident since he had already
apologised.
28. The sequence of events as disclosed by PW6 and PW10 is
that on 19.11.1997 at about 8.00 p.m. they went to a pan shop and
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thereafter sat at Janai Devi Temple till about 9.00 p.m. While they were
returning home, they heard some persons shouting " Hana mara sodu
naka" (thrash/assault them, do not leave them). When they turned
around, they saw accused Nos.3 to 8 armed with bicycle chain, gupti,
sticks, etc. The accused Nos. 3 to 8 rushed towards them and assaulted
them and took them towards the rear side of the house of Hanmant
Desai. They have deposed that the accused No.5 Sambhaji-was armed
with a gupti, Accused No.3 Rajendra had a cycle chain, and that the
other accused were armed with sticks. The accused assaulted them as
well as PW8-Shankar Yadav, PW10-Mahendra Gadekar, PW11-
Pandharinath Yadav, Manik and Bajrang, who had arrived at the spot
on hearing their cries.
29. PW6-Sambhaji Yadav and PW10-Mahendra Gadekar have
deposed that accused No.3 Rajendra Chavan had caught hold of the
neck of Manik Yadav. The accused No.1, who had come near the place
of the incident with a gun, told the accused No.3 Rajendra Chavan to
leave Manik Yadav and stated that he would deal with him. Rajendra
Chavan pushed Manik Yadav and immediately thereafter, the accused
No.1 fired a gun shot at Manik. As a result, said Manik sustained
injuries and fell on the ground. Accused No.1 thereafter fired another
gun shot in the direction of PW11 Pandharinath. Thereupon PW8
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Shankar Yadav caught hold of the gun to prevent the accused No.1
from firing again. Soon thereafter the accused left the place of the
incident. PW6 took the injured to the hospital and lodged the FIR at
Ex.58.
30. PW6-Sambhaji Yadav and PW10-Mahendra Gadekar have
denied the suggestion that on 19.11.1997 at about 9 to 9.15 p.m. while
the accused Nos.3 and 5 were proceeding towards the field of accused
No.1, they and the family members of PW-6-Sambhaji Yadav followed
and assaulted them with weapons like axe, gupti, cycle chain, sticks,
etc. These witnesses have denied that the accused No.1 had come to
the place of the incident on hearing the commotion and that PW6 and
PW-8 had caught hold of the accused No.1 and tried to snatch the gun
from his hands. PW6-Sambhaji Yadav and PW10-Mahendra Gadekar
have also denied the suggestion that Pandharinath had inflicted a blow
of gupti on the hands of accused No.1 and that Bajrang had given a
blow of the handle of the axe on his back. PW6-Sambhaji Yadav and
PW10-Mahendra Gadekar have denied the suggestion that the accused
No.1 had not fired a gun shot at Manik or Pandharinath. They have
denied that two gunshots were accidentally fired when PW6 and
Shankar had tried to snatch the gun from the hands of accused No.1.
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31. PW-8 Shankar Yadav is the uncle of PW6-Sambhaji Yadav.
He has deposed that on the night of 19.11.1997, while he was at his
residence, he heard some commotion towards the house of Hanmant
Desai. He went to the place of the incident and saw the accused Nos.3
to 8 assaulting PW-6 Sambhaji and PW-10 Mahendra. As he intervened
and tried to prevent the accused from assaulting them, someone fired a
gun shot from northern side of house of Hanmant Desai, The bullet hit
Manik and as a result thereof he sustained injuries and fell down. As
he was going towards house of Hanmant Desai, there was another
gunshot. He saw the accused No.1 standing with a gun near the house
of Hanmant Desai. PW8-Shankar Yadav held the gun, which was in the
hands of accused No.1, at which time the accused no.1 called the other
accused. He has stated that accused No.5 Sambhaji gave a blow of
gupti at his back. He has stated that some of the accused also
assaulted him with sticks. He has deposed that he had requested the
accused No.1 not to fire again. He has stated that thereafter all the
accused went away from the place of the incident.
32. PW8 Shankar Yadav has admitted in his cross-examination
that the accused no.1 had lodged a complaint against him and others
in respect of the same incident. He has denied the suggestion that he
and his family members had assaulted the accused. He has denied that
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accused No.1 had come to the place of the incident on hearing shouts
of Rajendra Chavan (accused No.3). He has denied the suggestion that
the accused No.1 had not fired a gun shot and that the gun had
accidentally discharged while he was trying to snatch the gun from the
hands of the accused no.1. He has stated that he had tried to snatch
the gun from the hands of accused No.1 only after the accused No.1
had fired two gunshots.
33.
PW-11 Pandharinath Yadav is the brother of PW6 -Sambhaji
Yadav. He has deposed that on the relevant day he had gone to a fair
price shop of Malan Hajare to purchase kerosene. He heard some
clamor towards the house of Hanmant Desai. He therefore proceeded
to the place of the incident. He saw the accused Nos.3 to 8 assaulting
PW6- Sambhaji Yadav and PW10-Mahendra Gadekar with sticks, cycle
chain and gupti. He has deposed that Rajendra Chavan (accused No.3)
had a bicycle chain. Sambhaji Sathe (accused No.5) had a gupti and
the other accused were armed with sticks. He intervened and tried to
prevent the accused from assaulting PW6-Sambhaji Yadav and PW10-
Mahendra Gadekar. In the meanwhile, his other family members
reached the place of the incident. He has stated that Rajendra Chavan
(accused No.3)had caught hold of Manik and was assaulting him.
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Mohan Sathe (accused No.1) who was standing a little distance away
from the spot of the incident, told Rajendra Chavan (accused No.3) to
leave Manik and said that he would deal with him. Rajendra (accused
No.3) pushed Manik and went aside. Thereafter the accused no.1 fired
a gun shot at Manik Yadav. The bullet hit Manik, he sustained injuries
and fell down.
34. PW11-Pandharinath has deposed that the accused No.5
Sambhaji Sathe had assaulted Bajrang with a gupti. He has stated that
in the meanwhile accused No.2 flashed the torch at him.
Apprehending that the accused No.1 would fire at him he moved aside
and thus missed the second gun shot fired by accused no.1. He has
deposed that accused No.5 Sambhaji Sathe gave a blow of gupti on his
forehead and left forearm and left side of the chest, as a result of which
he sustained bleeding injury and was unconscious. He has stated that
he regained consciousness on the next day in the hospital.
35. PW11-Pandharinath Yadav has admitted in the cross
examination that the accused has also filed a complaint against him
and his family members in respect of the incident on 19.11.1997. He
has denied the suggestion that the accused had not assaulted PW6-
Sambhaji Yadav and PW10-Mahendra Gadekar. He has also denied the
Megha 24/37
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suggestion that he alongwith the other family members had assaulted
accused No.3. He has denied the suggestion that on the 19.11.1997 at
about 9.00 p.m. when the accused Nos.2 and 3 were proceeding
towards the house of accused No.1, he alongwith his brothers and PW-
6 and PW-10 followed them and assaulted them by gupti, axe, cycle
chain, etc. He has denied the suggestion that the accused no.1 had
come to the place of the incident on hearing the clamor and had
questioned them as to why they were assaulting the accused Nos.3 to
5. He has further denied the suggestion that he and his family
members had surrounded the accused no.1 and that Shankar had held
the gun, which was in the hands of accused No.1. He has denied the
suggestion that he had assaulted accused No.1 with a gupti and that
Bajrang had assaulted him by giving a blow by the handle of axe on his
back. He has also denied the suggestion that there was an accidental
gunshot while Sambhaji and Shankar had tried to snatch the gun from
the hands of accused No.1. He had denied that the accused no.1 had
not fired two gunshots.
36. The testimony of PW6-Sambhaji Yadav, PW10-Mahendra
Gadekar an PW11-Pandharinath Yadav indicates that the accused no.1
had come near the place of the incident and told accused No.3
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Rajendra to leave Manik and further stated that he would deal with
him and thereafter fired a gunshot at Manik from a distance of about
35ft to 40ft. This evidence is not corroborated by PW8-Shankar Yadav.
His evidence does not indicate that he had heard the accused no.1
telling the accused No.3 to leave Manik (the deceased) and saying that
he would deal with him or that he had seen the accused No.1 firing at
Manik. On the contrary PW8-Shankar Yadav has stated that after
hearing the gunshot he went towards the house of Hanmant Desai and
saw the accused no.1 standing with a gun in his hand. The testimony of
this witness indicates that the accused No.1 had fired the gun while
standing near the house of Hanmant Desai which is at a distance of
about 35ft to 40 ft from the place of the incident. The testimony of this
witness is thus not consistent with the evidence of PW6-Sambhaji
Yadav, PW10-Mahendra Gadekar and PW11-Pandharinath Yadav.
37. It is also pertinent to note that PW6-Sambhaji Yadav, PW10-
Mahendra Gadekar and PW11-Pandharinath Yadav had not stated in
their statement under section 161 Crpc that before firing at Manik, the
accused no.1 had told the accused No.3 Rajendra Chavan to leave
Manik and that he would deal with him. This omission and
improvement has been brought on record and proved through the
investigating officer. It is true that the witnesses cannot be branded as
Megha 26/37
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wholly unreliable and their evidence cannot be jettisoned in its entirety
because of minor omissions or variations. Nevertheless, in the instant
case, the above reffered omission, which has been brought on record,
cannot be dubbed as a marginal variation, omission or improvement.
This is a material omission and improvement, which raises serious
doubts about the truthfulness of the prosecution witnesses and negates
the prosecution version that the accused no.1 had aimed the gun at
Manik and fired the gunshot with a clear intention of causing his death.
38.
It is also pertinent to note that the medical evidence reveals
that Manik had sustained penetrating wound over epigastric region.
The evidence of PW9-Dr. Suresh Shinde vis-a-vis the post mortem
report indicates that the pellets had travelled in upward direction
posteriorly towards the right side with exit wounds on the back over
10th and 11th rib. PW9-Dr. Suresh Shinde has opined that the location
of the entry/penetrating and exit wound indicates that the gun was
held below the penetrating/entry wound on the front side with the
muzzle in upward direction.
39. The location and the nature of the injury as well as the
upward track of pellets, as deposed by PW9-Dr. Suresh Shinde, rules
out the possibility of the accused firing the gun in standing position but
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indicates that the gun was fired in sitting posture or that the victim was
at an elevated position. The evidence of PW6-Sambhaji Yadav, PW10-
Mahendra Gadekar and PW11-Pandharinath Yadav does not indicate
that the accused no.1 had fired the gunshot in sitting positing or from
ground level or that the deceased was at an elevated level. Had the
accused no. 1 fired the gun in standing position or from the same level,
the track of the injury would not have been in upward direction. The
prosecution has failed to explain this material discrepancy. As stated
earlier, the defence of the accused No.1 is that after he was assaulted
by PW8-Shankar and PW11-Pandharinath, he fell down with the gun in
his hand and that the gun got accidentally discharged while PW8-
Shankar tried to snatch the gun from his hands. The nature and
location of the injury, particularly, the upward track of the pellet
supports the defence.
40. Furthermore PW9-Dr. Suresh Shinde has admitted in the
cross examination that the injuries sustained by Manik could be caused
due to accidental firing of a gunshot. The medical evidence is therefore
not only contrary to ocular evidence but probablises the defence. It is
well settled that when the evidence of the prosecution witnesses is
totally inconsistent with the medical evidence, it amounts to a
Megha 28/37
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fundamental defect in the prosecution case and unless it is reasonably
explained may discredit the entire case of the prosecution.
41. It is also pertinent to note that the double barrel
gun(Art.29), two empty cartridges (Arts.5 and 13) and six live
cartridges were sent to the ballistic expert PW-12. The testimony of
this witness indicates that residue of fire ammunition nitrate was
detected in both the barrel washings of said shotgun thereby indicating
that the said shotgun was used for firing prior to its receipt in the
laboratory. He has further deposed that the characteristics features of
the said empty cartridges tallied with two empty cartridges, which
were test fired by him. He has deposed that the empties at Art. 5 and
13 were fired from both the barrels of the shotgun. The fact that the
gunshots were fired from the said gun is not in dispute. The question is
whether it was fired intentionally or accidentally. In this regard, the
evidence of PW12- Chandrashekhar Kshatriya does not indicate that he
had checked whether the safety mechanism of the said gun was in
working condition. He has also admitted in his cross-examination that
the said gun could have been accidentally discharged in the course of
the scuffle. PW12-Chandrashekhar Kshatriya, the expert witness
therefore does not rule out the possibility of the accidental firing of the
gun.
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42. The evidence of PW9-Dr. Suresh Shinde indicates that he
had examined the accused No.1 on 20.11.1997. The testimony of
PW9-Dr. Suresh Shinde vis-à-vis the medical certificate at Ex.73 reveals
that the accused No.1-Mohan Sathe had sustained following injuries:-
1) Contused lacerated wound over left and
ring finger middle phalanx on ventral aspect
2x1x1 c.m. Bone deep, bone pieces seen.
2) Abrasion over right index finger proximal
inter pharyngeal traverse 1½ c.m. X ½ cm X-ray
No.9247/48 dated 21/11/1997 was suggestive of
fracture of left middle pharayx of left ring finger.
He has opined that the age of said injuries was
within 24 hours and cause of injuries was hard
and blunt object.
43. The medical evidence therefore proves that the accused had
sustained grievous injuries in the same incident. The prosecution
witnesses have denied having assaulted or inflicted the said injuries on
the accused no.1. The prosecution has failed to explain these injuries.
In Takhaji Hiraji vs Thakore Kubersing Chamansing & ors [2001] 6
SCC 145 the Apex Court has held that :
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"In Rajendra Singh & Ors. Vs. State of Bihar, (2000) 4 SCC
298, Ram Sunder Yadav & Ors. Vs. State of Bihar, (1998) 7
SCC 365 and Vijayee Singh & Ors. Vs. State of U.P., (1990) 3
SCC 190, all 3-Judges Bench decisions, the view taken
consistently is that it cannot be held as a matter of law or
invariably a rule that whenever accused sustained an injury
in the same occurrence, the prosecution is obliged to explain
the injury and on the failure of the prosecution to do so the
prosecution case should be disbelieved. Before non-
explanation of the injuries on the person of the accused
persons by the prosecution witnesses may affect the
prosecution case, the court has to be satisfied of the existence
of two conditions : (i) that the injury on the person of the
accused was of a serious nature; and (ii) that such injuries
must have been caused at the time of the occurrence in
question. Non-explanation of injuries assumes greater
significance when the evidence consists of interested or
partisan witnesses or where the defence gives a version which
competes in probability with that of the prosecution. Where
the evidence is clear cogent and credit worthy and where the
Court can distinguish the truth from falsehood the mere fact
Megha 31/37
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that the injuries on the side of the accused persons are not
explained by the prosecution cannot by itself be a sole basis to
reject the testimony of the prosecution witnesses and
consequently the whole of the prosecution case."
44. Reverting to the facts of the present case, factum of the
accused no.1 having sustained a grievous injury at the time of the
occurrence of the incident, is well established. The fact that the accused
no.1 had sustained injuries on fingers of both hands and failure to
explain these injuries lends support to the defence that the incident had
occurred in the manner stated by the accused and thus probabalises the
defence that the gun had discharged in the course of the scuffle.
45. It is also pertinent to note that the prosecution witness
PW8-Shankar Yadav is the uncle and PW6-Sambhaji Yadav, and PW11-
Pandharinath Yadav are the brothers of the deceased, whereas PW10-
Mahendra Gadekar is a close friend of PW6-Sambhaji Yadav. It is true
that the evidence of these witnesses cannot be discarded outright on
the ground that they are interested witnesses. Nonetheless, having
carefully scrutinised and analysed the evidence of these witnesses, we
are of the considered view that their evidence suffers from material
omissions and variations and is far from being credible. The evidence
Megha 32/37
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on record also indicates that the there was previous acrimony between
both groups over the incident of alleged eve teasing. In such a fact
situation, suppression of facts as well as the genesis of the incident
assumes greater significance and renders the defence plausible. In our
view all the above factors, which cast a genuine doubt on prosecution
version, justify extending benefit of doubt to the accused No.1.
Consequently, conviction of the accused No.1 for offences under
sections 302 and 307 of the IPC and section 30 of the Indian Arms Act
cannot be sustained.
46. Though accused Nos.1, 3 to 8 are also held guilty of
offences under section 325 r/w. 34 of the IPC, the medical evidence
does not indicate that the injuries sustained by PW6-Sambhaji Yadav,
PW8-Shankar Yadav, PW10-Mahendra Gadekar and PW11-
Pandharinath Yadav were of grievous nature. Bajrang, who had
allegedly sustained a fracture has not been examined. Prosecution
having failed to prove that any of these prosecution witnesses had
sustained grievous injuries the accused could not have been held guilty
of offence under section 325 of the IPC.
47. The testimony of PW9 -Dr. Suresh Shinde reveals that he
had examined the accused on 20.11.1997 at 2.45 a.m. The medical
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evidence reveals that apart from the grievous injury sustained by the
accused no. 1 and minor injuries by the other accused, the accused no
Popat had sustained contusion over left parietal region and the accused
Rajendra had contusions over left as well as right scapula region and
on left temporal region, being the vital part of the body. The fact that
the prosecution witnesses as well as some of the accused had sustained
injuries in the course of the same incident clearly indicates that both
groups were involved in a free fight ensued due to the previous
incident of eve teasing. The prosecution having suppressed the genesis
of the incident and further having failed to prove that the accused were
aggressors, the accused cannot be held vicariously liable with aid of
section 34 or 149 IPC and their liability has to be considered
independently.
48. Coming now to the individual acts of the accused, we find
that though the prosecution witnesses had sustained injuries, there is
no cogent evidence as to which of these accused had caused these
injuries. The accused No.5 Sambhaji Sathe is alleged to have caused
injuries to the prosecution witnesses by gupti, the FIR at Ex 58 does not
indicate that the accused No.5 Sambhaji Sathe was armed with a gupti
and that he had assaulted PW6-Sambhaji Yadav, Bajrang Yadav and
PW11-Pandharinath Yadav by gupti. PW6-Sambhaji Yadav has deposed
Megha 34/37
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that the accused no.5 Sambhaji Sathe had given three blows of gupti
on his left hand and one on right hand. The medical evidence does not
indicate that the injuries sustained by PW6-Sambhaji Yadav were
caused by a sharp weapon. On the contrary PW9-Dr. Suresh Shinde
has opined that the injuries suffered by PW6 were caused by a hard
and blunt weapon.
49. Similarly, there is material variation and improvement in
the evidence of the other prosecution witnesses. PW8-Shankar Yadav
has not attributed any specific role to the individual accused but has
made a general statement that he had seen accused Nos.3 to 8
assaulting PW-6 and PW-10. Furthermore, his testimony does not
indicate that the accused had assaulted Bajrang and Pandharinath by
means of a gupti. He has deposed that while he was trying to snatch
the gun from the hands of accused no.1-Mohan Sathe, the accused
No.8 Dilip Jadhav, accused No.7 Sanjay Jadhav, accused No.6 Baban
Chavan (deceased), accused No.3 Rajendra Chavan, accused No.4
Popat (deceased) came to the spot and one of these persons gave a
blow of stick on his back. He has stated that Sambhaji Sathe (accused
No.5) had assaulted him with gupti, however, this was not stated in the
statement under section 161 Cr.P.C.
Megha 35/37
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50. PW10-Mahendra Gadekar has deposed that the accused
Rajendra had assaulted him and PW-6 by cycle chain. This fact was
not stated in the statement under section 161 of Cr.P.C. PW10-
Mahendra Gadekar has further stated that the accused No.5 Sambhaji
Sathe had given a forcible blow of gupti on the stomach of
Pandharinath Yadav. His testimony does not indicate that the accused
No.5 Sambhaji had also assaulted Bajrang and Shankar by means of
gupti.
51. PW-11 has claimed that accused Nos.3 to 8 had assaulted
PW-6 and PW-10 with cycle chain, gupti and sticks. PW11 has deposed
that accused No.5-Sambhaji had also given a blow of gupti on the neck
of Bajrang. He has also stated that accused No.5 Sambhaji gave blows
of gupti on his forehead, left forearm and on the left side of the chest
and that he had become unconscious. PW11 has claimed that his
statement was not recorded by PW13 PI Sutar. The said statement is
falsified by PW13-PI Sutar, who has categorically stated that he had
recorded the statement of this witness under section 161 Cr.P.C. as per
his say. Omissions have been elicited that PW11 had not stated that he
had seen the accused assaulting PW6 and PW10 with gupti, cycle chain
and sticks. He had also not stated that the accused No.5-Sambhaji
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Sathe had assaulted Bajrang with gupti and that the accused No.5-
Sambhaji Sathe had assaulted him with gupti on his forehead and
forearm.
52. The evidence of these eyewitnesses suffers from material
contradictions and omissions. Each of these witnesses has improved
upon the version stated in the FIR as well as statements under section
161 Cr.P.C. thus rendering the prosecution case doubtful and
improbable.
53. The learned Sessions Judge failed to consider these serious
infirmities and discrepancies in the prosecution case. The finding
recorded in the impugned judgment, in our view, is unsustainable.
54. Under the circumstances, and in view of discussion supra,
the appeals are allowed. The impugned order of conviction and
sentence recorded against these accused is set aside. Bail bonds
furnished by the accused are discharged.
(SMT. ANUJA PRABHUDESSAI, J.) (SMT. V.K. TAHILRAMANI, J.)
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