24) In the cross examination, Ramesh (PW 2) has stated that
Chandrakant had fired one bullet from his fire arm in the hospital
also. The evidence of spot panchanama does not show there was
firing either inside of the hospital or outside of the hospital. This
circumstance also falsifies the versions given by Prakash (PW 3) and
Ramesh (PW 3) and this circumstance shows that things are
exaggerated and there was intention to anyhow implicate
Chandrakant who was councillor of rival group.
25) Arun Shirsale (PW 1) has given evidence that at the
relevant time, he was having talk with Dr. Ikbal of Dr. Acharaya
Hospital. He has given evidence that he heard shouts coming from
waiting room and so, he rushed to the spot and then he saw Sunil
Patil lying on the floor and Ramesh Patil sitting in injured condition.
The spot panchanama shows that the distance between the room of
Dr. Ikbal and the spot of offence was not much and immediately
after entering of the accused on the first floor anybody from hospital
could have realised the intentions and there must have been chaios.
Thus, the manner in which incident is described by this witness
shows that things are concocted and there is possibility that many
persons are falsely implicated in the present matter if some incident
had taken place there.
Cri. Appeal No. 370/01 & Ors.
26) The evidence on record shows that on that day, C.T. scan
was not done in Acharya Hospital and Sunil Patil was immediately
rushed back to the Civil Hospital. There is no record of Acharaya
Hospital produced to show that any payment was made in Acharaya
Hospital, for C.T. scan.
27) In the cross examination Arun (PW 1) has admitted that
in many criminal cases, he, Devendra, Sunil Patil were joined as
accused and many cases were filed against him and his brother even
for the offences punishable under sections 302, 307, 376 etc. of IPC.
These circumstances show that the persons from the group of Arun
Shirsale would have certainly taken steps if some persons had come
up to the hospital of rival group to make assault on Sunil Patil. If
many persons of group of Arun had come in vehicles like ambulance,
Armada vehicle and Maruti van, it does not look probable that there
was one way assault if the incident had really taken place there.
28) Arun Shirsale (PW 1) has avoided to admit many things.
He has avoided to admit that many of the accused persons are
active workers of political party Congress I and Dr. Shantaram is
Vice President of city unit of Congress I. He has avoided to admit
that accused Ashwin and Amit are cousins of Shantaram. However,
Cri. Appeal No. 370/01 & Ors.
he admits that the relations between he and Shantaram were
strained as in the past Shantaram was removed from service by
Local Body of the city in which Shivsena was having power and after
that he had become a member of Congress I party. Suggestions
given to him show that all the accused persons are either related to
each other or they were workers of political party Congress but they
are denied by this witness. However, Arjun Shirsale (PW 13) has
given some admissions fairly in that regard.
29) Arjun Shirsale (PW 13) has deposed that he went
towards Acharaya Hospital when he learnt that Sunil Patil was
shifted to Acharaya Hospital for C.T. scan. He has given evidence
that after entering the hospital, he saw that Arun (PW 1) was
running towards the main gate of hospital and so, he followed Arun
and then he saw that all the accused ran away with weapons like
swords and Chandrakant was having pistol. He has described the
weapons all the accused were having at that time. He has tried to
say that he entered the premises of hospital and the building of the
hospital from other gate and not from the main gate and the reason
for the same is not given. If the accused persons had entered from
other gate and they were going through the main gate, in ordinary
course, persons like Arjun would have entered through main gate.
His evidence shows that he entered from other gate. It can be said
Cri. Appeal No. 370/01 & Ors.
that Arjun has tried to say that there was no possibility of
confrontation.
30) Arjun Shirsale (PW 13) has admitted in his evidence that
since 1996 political party Shivsena was in power in Jalgaon Municipal
Council and Suresh Jain was their leader. He has admitted that Jain
was M.L.A. of Shivsena party from the city and he was also minister
in the State Government, which was of Shivsena Party. He has
admitted that many cases were filed against him, his brother and
even against his father like mentioned above. Thus the persons from
complainant's side were history sheeters.
31) Dr. Sayyed (PW 5) is examined to prove the injuries
sustained by Sunil Patil on that day. He has given evidence that
when he first examined Sunil Patil on that day at 11.40 a.m. he
found following injuries :-
"(i) Incised wound of size 1ʺx1 ½ʺ x /14ʺ on left lower
side of cheek, of simple nature, which was caused by hard
and sharp object.
(ii) Incised wound 1/2ʺx1/4ʺ x1/4ʺ on left ring finger
simple in nature, caused by hard and sharp object.
(iii) Abrasion 1 c.m. x 1 c.m. on right side of the forehead
of simple nature, caused by hard and blunt object.
Cri. Appeal No. 370/01 & Ors.
(iv) Contusion of size 3ʺx2ʺ behind the left ear and upper
part of neck on left side, of simple nature, caused by hard
and blunt object.
(v) Linear abrasion 1 c.m. In length on left mandibulor
angle, simple in nature, caused by hard and blunt object."
He has given evidence that the aforesaid injuries were caused within
six hours, they were fresh and he had advised C.T. scan as there
was the head injury to Sunil Patil.
32) Dr. Sayyed (PW 5) has given evidence that Sunil Patil
was again brought to the Civil Hospital at 1.00 p.m. and at that
time, he had found that Sunil Patil had sustained more injuries. He
has given evidence that as many as eight injuries were more and
they were as under :-
"(i) Incised wound 2ʺx3ʺ bone deep on left upper arm of
simple nature, caused by hard and sharp object.
(ii) Incised wound 2ʺ1/2ʺx1/4ʺ left elbow joint of simple
nature, caused by hard and sharp object.
(iii) Incised wound 1/2ʺx1/2ʺx 1/2ʺ on left side of chest
below medial to left nipple, of simple nature, caused by
hard and sharp object.
(iv) Incised wound 3/2ʺ x1ʺx1ʺ on right scapula of simple
Cri. Appeal No. 370/01 & Ors.
nature caused by hard and sharp object.
(v) Incised wound 4ʺx1ʺ interscapular region of simple
nature, caused by hard and sharp object.
(vi) Incised wound 6ʺ x 1ʺ x 1ʺ infrascuplar region of
simple nature, caused by hard and sharp object.
(vii) Incised wound 1ʺx1ʺx1/4ʺ on right little finger middle
phalynx of simple nature caused by hard hand sharp object.
(viii) Abrasions multiple 2ʺx2ʺ on left elbow joint simple
nature, caused by hard and blunt object."
In respect of these new eight injuries also, Dr. Sayyed has given
evidence that they were sustained within six hours, they were fresh.
33) The evidence is given by Dr. Sayyed (PW 5) that Sunil
Patil was indoor patient in Civil Hospital from 21.10.1998 to
22.10.1998 and he was discharged on request. He has given
evidence that in Civil Hospital C.T. scan was done on 22.10.1998. If
C.T. scan was available in Civil Hospital, there was no reason to shift
Sunil Patil to Acharaya Hospital and there is no explanation in
respect of this circumstance. Dr. Sayyed (PW 5) has given evidence
that due to injury to head, there was extensive extradural
hematoma at left tempero parietal region. He has given evidence
that there was fracture at left tempero parietal region and due to
this injury, there was diffused cerebral oedema. The certificate at
Cri. Appeal No. 370/01 & Ors.
Exh. 83 was prepared by Dr. Sayyed in respect of injuries which he
had noticed at 11.30 a.m. and also at 1.00 p.m. on that day.
34) Dr. Sayyed has given evidence that on 21.10.1998 he
examined Prakash Patil (PW 3) at 1.05 p.m. and he found following
injuries on the person of Prakash.
"(i) Incised wound 1½ʺ x 1/2ʺ x 1/4ʺ below styloid process
of ulna on left side, of simple nature, caused by hard and
sharp object.
(ii) Incised wound 1ʺ x 1/2ʺ x1/4ʺ on left wrist joint of
simple nature, caused by hard and sharp object.
(iii) Incised wound 1/2ʺ x 1/4ʺ x 1/4ʺ on left middle finger,
of simple nature, caused by hard & sharp object.
(iv) Contused lacerated wound 1/2ʺ x 1/2ʺ 1/4ʺ on left
parietal region, of simple nature, caused by hard and blunt
object."
Dr. Sayyed has given evidence that these injuries were sustained
within six hours, they were fresh and Prakash was treated as indoor
patient from 21.10.1998 to 26.10.1998. The certificate in respect of
Prakash is proved as Exh. 84. The aforesaid injuries do not show
that any injury was grievous and there was any reason for keeping
Prakash as indoor patient, but such record was created. This
circumstance creates doubt about the fairness of investigating
Cri. Appeal No. 370/01 & Ors.
agency and also the doctor.
35) Dr. Sayyed (PW 5) has given evidence that on
21.10.1998 he examined Ramesh Pawar (PW 2) at about 1.00 p.m.
and he found following injuries on his person.
"(i) Contused lacerated wound 3ʺ x 1/2ʺ x 1/4ʺ on left
parietal region, of simple nature, caused by hard and blunt
object.
(ii) Incised wound 1ʺ x 1/2ʺ x 1/4ʺ on right forearm of
simple nature, caused by hard and sharp object.
(iii) Incised wound 1ʺ x 1/2ʺ x 1/4ʺ on left elbow joint, of
simple nature, caused by hard and sharp object.
(iv) Incised wound 1ʺ x 1/2ʺ x 1/4ʺ on left wrist joint
ventrally, of simple nature, caused by hard and sharp
object.
(v) Incised wound 1ʺ x 1/2ʺ x 1/4ʺ on right eliac crest, of
simple nature, caused by hard and sharp object.
(vi) Incised wound 1/2ʺ x 1/4ʺ x 1/4ʺ base of penis on left
side, simple in nature, caused by hard and sharp object.
(vii) Incised wound 1/2ʺ x 1/2ʺ x 1/4ʺ over left clavicle, of
simple nature, caused by hard and sharp object. "
Dr. Sayyed (PW 5) has given evidence that the injuries were
sustained within six hours. He has given evidence that Ramesh was
Cri. Appeal No. 370/01 & Ors.
also indoor patient from 21.10.1998 to 26.10.1998. The certificate is
proved as Exh. 85. In this case also, it can be said that it was not
necessary to admit Ramesh in the hospital, but the record was
created of admission.
36) Dr. Sayyed (PW 5) has given evidence that the aforesaid
injuries were simple in nature and caused by hard and sharp object
and such injuries can be caused by weapons like sword, dagger,
knife. He has given evidence that injury No. 4 found on the person
of Prakash which was C.L.W. and injury No. 1 found on the person of
Ramesh can be caused by weapons like stick, hard and blunt object.
37) Dr. Sayyed (PW 5) has given evidence that he conducted
P.M. examination on the dead body of Sunil Patil on 26.10.1998. He
found following 15 injuries on the dead body.
"(i) Sutured wound 1ʺ in length below left lower side of
cheek and abrasion.
(ii) Sutured wound 1ʺ in length on left ring finger.
(iii) Abrasion with scab formation right side of forehead 1
cm x 1 c.m.
(vi) Contusion 5ʺ x 4ʺ behind left ear, extending below
the neck.
(v) Linear abrasion and scab formation on left
Cri. Appeal No. 370/01 & Ors.
mandibuler angle.
(vi) Sutured wound 12ʺ in length left upper arm anteriorly
(vii) Sutured wound 2ʺ in length on left elbow joint.
(viii) Sutured wound 1½ʺ in length on left side of chest
below and medial to left nipple.
(ix) Sutured wound 3½ʺ in length on right scapula.
(x) Sutured wound 4ʺ in length interscapular region.
(xi) Sutured wound 6ʺ in length interscapular region.
(xii) Sutured wound 1ʺ in length meddle phalynx of right
little finger.
(xiii) Sutured wound 1½ʺ in length on left leg above
medical mallelous.
(xiv) Multiple abrasions with scab formation left elbow.
(xv) Sutured wound 14ʺ in length left parietal."
Dr. Sayyed (PW 5) has given evidence that all the aforesaid injuries
were antemortem in nature.
38) The evidence of Dr. Sayyed (PW 5) shows that he found
internal injuries like :-
"In head region - Injuries under scalp, hamatoma of
size 5ʺ x 3ʺ in both frontal region.
Skull vault and -Linear fracture of left empro parietal
base :- bone left parietal craoiotomy done
with 14ʺ incigion.
Cri. Appeal No. 370/01 & Ors.
Brain appearance - Meninges congested.
- Extradural hamatoma of size 2ʺ x 2ʺ
in left tempero parietal region.
- Subdural collection of blood over
both cerebral hemisphere in high
pareital region.
- Brain matter was highly congested
and oedematous.
- Cerebellum congested.
- Clotted blood is seen over both
temporal region."
Dr. Sayyed (PW 5) has deposed that death of Sunil Patil took place
due to injury to head which was noticed by him in the first
examiation which was done at 11.30 a.m. Thus, Sunil Patil did not
die due to the injuries allegedly inflicted on him in second incident
which allegedly took place in Acharaya Hospital.
39) Dr. Sanjeev Huzurbazar (PW 6) has given evidence that
he had given treatment to Sunil Patil from 22.10.1998 to 26.10.1998
in his private hospital as Neurosurgeon. He found following five
injuries on the person of Sunil Patil :-
"(i) Multiple CLW left arm,
(ii) Left chin,
(iii) Sutured CLW on back,
(iv) Sutured CLW on left ring and right little finger.
Cri. Appeal No. 370/01 & Ors.
(v) Left parietal scalp."
Dr. Sanjeev (PW 6) has given evidence that injury No. 5 was fatal
injury. The record of the hospital is proved in his evidence as Exh.
97.
40) If the evidence of Dr. Sanjeev (PW 6) and Dr. Sayyed
(PW 5) is compared with each other and the record prepared by
them is compared, it can be said that many more injuries are
mentioned by Dr. Sayyed (PW 5) in the record. Dr. Sanjeev (PW 6)
had examined Sunil Patil after the second incident and so, this
circumstance cannot be ignored. These circumstances create serious
doubt about the fairness of investigation and fairness of Government
office like Civil Hospital. Due to that the circumstance that the
political party of the complainant's side was in power in the State
needs to be considered seriously. The possibility of concoction is
created due to these circumstances also.
41) Vijay Bhoi (PW 4) is examined by the prosecution to
prove the spot panchanama, Exh. 80. The spot panchanama was
prepared between 17.15 hours and 18.15 hours of 21.10.1998.
Evidence of Vijay Bhoi shows that Arun Shirsale had shown the spot.
Exh. 80 shows that the places which were not only the waiting room,
but other places were shown and blood was found at other places
Cri. Appeal No. 370/01 & Ors.
also.
42) Exh. 80 shows that blood was found at following
places :-
(i) Outside of C.T. scan center on the wall near door of
C.T. scan and at the height of 4 ft. Adjacent to this C.T.
scan center there is cabin of Dr. Ikbal where Arun (PW 1)
was allegedly sitting. According to him, he came out when
incident was over.
(ii) In front of room of Dr. Ikbal on floor at the distance
of 1 ft. there was blood in the space of 6 x 6 inch. Thus,
right in front of cabin of Dr. Ikbal, blood was lying, but PW
1 is saying that he came out only after incident was over.
(iii) The stretcher was found at other place and not in the
waiting room where the spot panchanama was prepared
and there were blood stains on the stretcher.
(iv) The blood was present in the waiting room also and it
was present at the distance of 1 ft. from the cabin of Dr.
Prabhakar in the space of 2 x 1 ft.
(v) In waiting room, there was blood near two benches
which were kept near counter near the door towards
northern side of waiting room portion of Rampuri knife
having blood stains was lying.
Cri. Appeal No. 370/01 & Ors.
(vi) Near parfait wall of gallary which is adjacent to the
waiting room, one wooden handle of, gupti or dagger was
lying and it was having blood stain. One metal strip which
is used to join blade with the handle was also lying there
and it was having blood stains.
(vii) Below the gallary portion of first floor, there were
broken pieces of glass and the broken pieces of glass were
also found outside the campus of hospital on the road.
Some windows were found in broken condition. In respect
of many of these circumstances mentioned in spot
panchanama, there is no explanation in the evidence of PW
2 and PW 3.
43) The defence has suggested to the witnesses that there
was no assault either on PW 2 or PW 3 or Sunil Patil, but some
workers of political party Shivsena had became angry as proper
attention was not paid for C.T. scan of Sunil patil and they had
created chaios and there was rioting.
44) The prosecution has given evidence on recovery of some
weapons on the basis of statements made by some of the accused.
Nana (PW 9) has given evidence on statement given by accused
Nilesh of which memorandum was prepared which is at Exh. 96. He
Cri. Appeal No. 370/01 & Ors.
has given evidence that Nilesh took police and panchas towards
Asoda Bhadali road, Asoda and from one place of village Sujde he
produced five swords, one dagger and one hockey stick which was
found to be kept in heap of grass. He has given evidence that these
weapons were seized under panchanama at Exh. 96-A. This recovery
was shown to be made on 29.8.1998.
45) Digamber (PW 10) is examined as panch witness. There
is no substantive evidence that accused Shamkant has given
statement, but evidence is given that one sword was produed by
Shamkant from his field from village Asoda. The documents are
proved as Exhs. 94A and 94B.
46) One Arjun Pawar (PW 12) is examined as panch witness
to prove the recovery of fire arm and cartridges on 4.3.1999. He has
given evidence that Chandrakant gave statement of which
memorandum was prepared and Exh. 100 is the memorandum. He
has given evidence that Chandrakant took police and panchas to his
residential place and from there, he produced country made revolver
and six live cartridges. Seizure panchanama is proved as Exh.100A.
This recovery was very late and when they wanted to implicate
Chandrakant, residential place of Chandrakant was known, they had
not searched the place of Chandrakant. No evidence of explosive
Cri. Appeal No. 370/01 & Ors.
expert is given on the revolver and six live cartridges. Thus, when
evidence is given by one eye witness that atleaset two bullets were
fired from this revolver, no steps were taken to get expert report in
respect of revolver and the live cartridges. It is already observed
that empty cartridges were not recovered when spot panchanama
was prepared.
47) The aforesaid discussion shows that there is direct
evidence only of the interested witnesses. There was severe political
rivalry between two groups and the group of complainant's side was
in power both in Local Body and in the State. Nobody from the
hospital has come forward even when such incident took place in the
hospital. Even persons from outside of the hospital have not given
evidence on the incident. There is no panchanama of the vehicles
which were allegedly damaged in the incident. These circumstances
and aforesaid lacuna have created serious doubt about the entire
case of prosecution. Further, the witnesses have improved their
previous versions given before the police to material extent to give
specific role to accused in the Court. The circumstance that even
when Arun and Arjun Shirsale were present, they did not participate
and no assault was made on them also creates serious doubt about
the case of prosecution. Due to these circumstances, the Trial Court
has held that there is possibility of concoction and implication of
Cri. Appeal No. 370/01 & Ors.
many persons in the present matter to remove them from politics.
The Trial Court has also observed that the injuries sustained by PW 2
and PW 3 were simple and minor injuries and they can be self
inflicted. Such possibility cannot be ruled out as every attempt is
made to see that accused Chandrakant suffers in the present matter.
Discrepancies in the evidence of Dr. Sayyed (PW 5) and Dr. Sanjeev
(PW 6) has also created a probability that nothing was fairly done.
Some omissions in relation to F.I.R. are proved in the evidence of
Bhikan Jagtap (PW 18) Investigating Officer and there are material
omissions and they also can be used to hold that there is possibility
of concoction.
48) The learned counsel for accused viz. Mr. Warma placed
reliance on many cases as follows :-
"1. 2016 AIR (SC) 5554 (Ramesh and others v.
State of Haryana)
2. 2016 AIR (SC) 5231 (Mahavir Singh v. State
of Madhya Pradesh)
3. 2013 AIR (SCW) 5501 (Prem Singh v. State
of Haryana)
4. 2009 AIR (SC) 2298 (Mahtab Singh & Anr. v.
State up U.P.)
5. 2002 (5) JT 302 (Sukliya v. State of Madhya
Pradesh)
6. 2001 AIR (SC) 2408 (State of Madhya
Pradesh v. Surpa)
Cri. Appeal No. 370/01 & Ors.
7. 2012 AIR (SC) 1 (State of Rajasthan v.
Shera Ram @ Vishnu Dutta)
8. 2009 AIR (SC) 2913 (Nepal Singh v. State of
Haryana)
9. 2012 AIR (SC) 1292 (Govindaraju @ Govinda
v. State by Sriramapuram P.S. & Anr.)
10. 1959 AIR (SC) 1012 (Tahsildar Singh and
another v. State of U.P.)
11. 1999 ALL MR (Cri) 93 (S.C.) (Jaspal Singh v.
State of Punjab)
12. 1976 Mh.L.J. 485 (Guljarsing Santoshsing
and others v. State of Maharashtra)
13. 2004 DGLS (SC) 81 (Gopal v. Subhash)
14. 2002 DGLS (SC) 40 (State of Haryana: Rai
Sahab v. Ram Singh: State of Haryana)
15. 2015 DGLS (SC) 1099 (Mangu Singh v.
Dharmendra and another)
16. 2017 DGLS (SC) (347 Krishnegowda and
Others v. State of karnataka by Arkalgud Police)
17. 1992 DGLS (SC) 724 (Dharam Singh v. State
of Punjab)"
The cases are on appreciation of evidence and also the procedure
which needs to be adopted by the Appellate Court. The cases are
also on the point, when there is discrepancy in oral evidence and
medical evidence. In some cases, it is laid down that the Appellate
Court should be very slow in disturbing the finding which is on the
basis of oral evidence. The observations are made with regard to the
effect of non examination of material witnesses and absence of
Cri. Appeal No. 370/01 & Ors.
support of independent witnesses. There cannot be dispute over the
propositions made in all the reported cases. The facts and
circumstances of each and every case are always different. In the
present matter, it is not possible to believe the direct evidence due
to various discrepancies and circumstances which are already noted.
The defence has examined one witness to prove the alibi in respect
of accused Ashwin. But, there is no need to discuss that part of
evidence. Further, that evidence is also not full proof and it has not
created possibility that it was not possible to Ashwin to remain
present on the spot at the relevant time. This Court holds that it is
not possible to interfere in the decision of the Trial Court by which
benefit of doubt is given to all the accused. In the result, both the
proceedings stand dismissed. The bail bonds of the accused stand
cancelled.
[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]
ssc/
