The State Of Maharashtra vs Rajesh Pitambar Sonwane And ...
2017 Latest Caselaw 3463 Bom

                                                  322.1999 Cri.Appeal.odt
                                       1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO.322 OF 1999 

          The State of Maharashtra
          Through P.I.Dharangaon 
          Police Station, Tq. Erandol, 
          Dist. Jalgaon.                   APPELLANT 
                                     [ori.complainant]

                     VERSUS

          1.       Rajesh Pitambar Sonwane,  
                   age 25 yrs., r/o. Paldhi 
                   Idgah Bardi, Tq.Erandol, 
                   Dist. Jalgaon.  

          2.       Arjun Eknath More,  
                   age 30 yrs., 
                   R/o. Dongaon, Tq.Erandol, 
                   Dist. Jalgaon. 

          3.       Pitambar Totaram Sonwane, 
                   age 60 yrs., r/o. Paldhi Idgah 
                   Bardi, Tq.Erandol, Dist.Jalgaon 

          4.       Gautam Pitambar Sonwane, 
                   age 20 yrs., r/o. Paldhi Idgah 
                   Bardi, Tq.Erandol, Jalgaon.  

          5.   Sunil Pitambar Sonwane, 
               age 22 yrs. r/o. Room No.9, 
               Govt. Quarter, Near Collector 
               Bungalow, Jalgaon.           RESPONDENTS
                                           [ori.accused]
                                ...
          Mr.S.J.Salgare, APP for the Appellant - State 
          Mr.K.C.Sant, Advocate  for  Respondent  Nos.1 
          to 5.  
                                ...




::: Uploaded on - 22/06/2017               ::: Downloaded on - 23/06/2017 01:01:55 :::
                                                      322.1999 Cri.Appeal.odt
                                         2


                          CORAM:  S.S.SHINDE & 
                                  S.M.GAVHANE,JJ.      

Reserved on : 08.06.2017 Pronounced on : 22.06.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. This Appeal is filed by the

appellant - State, challenging the judgment

and order of acquittal dated 28th April, 1999,

passed by the IIIrd Additional Sessions

Judge, Jalgaon in Sessions Case No.212/1998.

2. The prosecution case in nutshell is

as under:

One Gulab Raghunath Patil [PW-2],

President of Shivsena Party for Erandol

Division, was coming by road to Paldhi from

Erandol on 10th July, 1998 at 5.00 p.m. He saw

the persons gathered at the left side of the

road near Paldhi village on Chandsar Road. On

verification, he found that the dead body of

one person was lying by the side of the road,

and there were various injuries on different

322.1999 Cri.Appeal.odt

parts of the dead body. The palm of the dead

body was cut, and there were injuries on

head, hips etc. and the body was lying in

pool of blood. He, therefore, went to village

Paldhi outpost, and reported the incident to

the Police as per the complaint [Exh.23]. The

Police Sub-Inspector, Shivram Deoram Mali

[PW-22] was on duty at outpost Paldhi. He

reduced into writing the complaint lodged by

Gulab Raghunath Patil [PW-2] and rushed to

the place of incident, which was just 200

meters from S.T. stand. The Police Sub

Inspector also found the dead body lying in

the pool of blood, and therefore, he called

two panchas and recorded inquest panchnama

[Exh.28] in presence of the panchas. He also

recorded the panchnama of the place of

incident in presence of panchas [Exh.31] and

seized simple mud and blood stained mud from

the place of incident. The Police Sub-

Inspector found that, there were blood stains

322.1999 Cri.Appeal.odt

from the dead body to some distance, and

therefore, he followed the path where the

blood stains were found lying. He himself and

panchas reached to the house of the accused

Rajesh Sonwane near Idgah Bardi hutment area.

The blood stains were found right from the

dead body up to the hut, and therefore, the

Police Sub Inspector along with panchas

entered into the hut, belonging to the

accused Rajesh Pitambar Sonawane. One suri

was found stained with blood, and one weapon

having wooden handle lying on the cot in the

hut. Both these weapons were stained with

blood. The Police Sub-Inspector seized those

weapons in presence of panchas under

panchnama. He also found some clothes on the

cot such as shirts, suit pants, etc. He

seized those clothes and sealed those in

presence of panchas. He also seized the

simple mud and blood stained mud. A panchnama

[Exh.31] in this regard was prepared in

322.1999 Cri.Appeal.odt

presence of panchas. The Police Sub Inspector

Shivram Mali was entrusted with the

investigation of Crime bearing No.100/1998,

registered on the basis of the complaint

lodged by Gulab Raghunath Patil. The dead

body was sent for postmortem to Civil

Hospital, Jalgaon.

3. On 11th July, 1998, the Head

Constable Shivdas Shankar Saindane [PW-16]

produced the clothes of the deceased and they

were seized in presence of panchas under

panchnama [Exh.33]. The dead body was handed

over to the relatives of the deceased i.e.

his father Popatrao Rama Sonwane for funeral

after postmortem. The Police Sub-Inspector

Shivram Mali recorded the statements of Popat

Rama Sonwane and 15 other witnesses on that

day. On the same day, he also arrested the

accused Rajesh Pitambar, Arun Piambar and

recorded the statement of Taher Subhan Patel

[PW-4], who was the alleged eye witness to

322.1999 Cri.Appeal.odt

the incident. The accused Sunil Pitambar was

having injury on his right hand, and

therefore, he was got examined through

Medical Officer. On 13th July, 1998, the shirt

of accused Rajesh Pitambar was seized in

presence of panchas in consequence of the

information given by the accused Rajesh. The

Police Sub Inspector Shivram Mali recorded

the statement of witnesses on 14th July, 1998

and 15th July, 1998. He also received the

postmortem notes. On 16th July, 1998, the

accused Pitambar Totaram Sonwane agreed to

produce bicycle, and accordingly, produced

the same and his information was reduced into

writing in the form of memorandum [Exh.63],

and the bicycle was seized in consequence of

the information under panchnama Exh.64. On

the same day, the sickle was also seized in

consequence of the information given by the

accused Pitambar Totaram Sonwane as per

memorandum and panchnama Exhs.37 and 38. On

322.1999 Cri.Appeal.odt

17th July, 1998, one suri was also seized in

consequence of the information given by

accused Gautam Pitambar Sonwane under

memorandum and panchnama Exh.60 and 61 in

presence of panchas. On 18th July, 1998, the

accused Arjun More agreed to produce the

gupti in presence of panchas, and

consequently, produced the same and it was

seized as per memorandum and panchnama Exh.47

and 48. The Police Sub Inspector obtained

blood samples of accused persons on 20th July,

1998 and interrogated the witness and sent

the seized articles to Chemical Analyser,

Aurangabad, on 27th July, 1998 for analysis

along with forwarding letter Exh.49.

4. During investigation, the Police Sub

Inspector Shivram Mali found that, the

deceased was one Sanjay Popat Sonwane,

resident of Jalgaon, as some R.T.O. papers

and photographs and other papers were found

in the pocket of deceased. During

322.1999 Cri.Appeal.odt

investigation, it was further found that, the

deceased Sanjay Sonwane was doing social work

and was active member of Dalit Panthar. He

used to be with accused Rajesh Pitambar

Sonwane. It was found by deceased Sanjay

that, during election accused Rajesh Sonwane

collected money from the people, and did not

distribute it among the workers. There was

dispute on account of this between the

deceased Sanjay Sonwane and accused Rajesh

Sonwane. The accused Sunil Sonwane, brother

of accused Rajesh, was serving in the Local

Fund Audit Office at Jalgaon as a peon, and

he was residing in Room No.9 in the same

building in which the deceased Sanjay was

residing along with his parents. On 16th

April, 1998, there was quarrel between mother

of the deceased and wife of accused Sunil on

account of the tap water. There were

complaints and counter-complaints in this

regard. Since then, the accused Rajesh,

322.1999 Cri.Appeal.odt

Sunil, Gautam and Pitambar used to abuse

Sanjay and others. On the same day, accused

Gautam had been to Sanjay along with a sickle

in his hand to kill him. However, there was

settlement. At that time he threatened Sanjay

Sonwane that, he will not be kept alive and

no matter as to how much amount he will have

to spend for the same. During the course of

further investigation, it was transpired

that, Popat Rama also gave a written

representation to Superintendent of Police,

Jalgaon and Lokmat Office prior to 12th June,

1998. It revealed during investigation that,

accused Rajesh Sonwane was removed from the

post of District Head of Dalit Panthar,

Jalgaon, at the time of Lok Sabha Elections

in the year 1998, and deceased Sanjay Sonwane

was appointed on the said post in place of

accused Rajesh Sonwane, by the President of

the Dalit Panthar Party, Shri Namdeo Dhasal.

5. The Investigating Officer during the

322.1999 Cri.Appeal.odt

course of investigation came to know that, on

10th July, 1998, the deceased Sanjay Sonwane

left the house at about 9.00 a.m. so as to go

to office of RTO as he wanted to obtain

driving license for plying an auto-rickshaw.

He came back home at 1.30 p.m., and again

went to RTO office on bicycle. The deceased

Sanjay, however, did not come back to house

till late hours in the night, and thereafter

the police reached to the house of Popat Rama

i.e. father of Sanjay, at about 12.00 p.m.

and informed him that, Sanjay is murdered at

Paldhi, and that his dead body is brought to

Civil Hospital, Jalgaon. From the statement

of witnesses recorded by the Investigating

Officer Shri Shivram Mali, it was revealed

that on 10th July, 1998, some of the witnesses

found deceased Sanjay running away from the

house of accused Rajesh in an injured

condition, and his right wrist was as good as

detached from the upper portion of the hand,

322.1999 Cri.Appeal.odt

and he was found running towards Chandsar

road. The accused persons were following

Sanjay along with weapons in their hands like

sickle, gupti, razor, etc. The accused

Pitambar Sonwane was following Sanjay on

bicycle, and he followed him up to Chandsar

road nearby a liquor shop. On the Chandsar

road near liquor shop by the side of the road

on left side, the accused persons assaulted

Sanjay with weapons in their hands and Sanjay

succumbed to the injuries sustained by him.

All the accused persons therefore

intentionally and knowingly caused the death

of Sanjay Popat Sonwane, and also caused

grievous hurt to him with the instruments

like sickle, gupti, razor, etc. It is alleged

that, on account of political enmity as well

as the other enmity already described, the

accused persons killed Sanjay Popat Sonwane

in furtherance of their common intention. As

already stated, after due investigation a

322.1999 Cri.Appeal.odt

charge sheet was filed in the court of the

Judicial Magistrate First Class, Erandol, and

subsequently, case was committed to the Court

of Session. The trial Court framed charge for

the offence punishable under Sections 302

r/w.120B, 302 r/w.34, 326 r/w.120B and 326

r/w.34 of the Indian Penal Code. After full-

fledged trial, the trial Court acquitted all

the accused, hence this Appeal filed by the

State.

6. Heard the learned APP appearing for

the appellant - State. He submits that, there

is direct evidence in the nature of eye

witnesses. The evidence of the eye witnesses

corroborates with each other. There is also

corroboration from the medical evidence as

well as C.A. report. He invites our attention

to the entire evidence brought on record by

the prosecution and submits that, the manner

in which Sanjay was assaulted, and due to

severe assault by deadly weapon, Sanjay

322.1999 Cri.Appeal.odt

[deceased] lost his life. Therefore, he

submits that, the view taken by the trial

Court was not possible and in the light of

the evidence available on record the order of

acquittal deserves to be quashed and set

aside and accused deserve to be convicted for

the commission of serious offences as alleged

against them.

7. On the other hand, learned counsel

appearing for the respondents-accused invites

our attention to the findings recorded by the

trial Court and submits that, possible view

has been taken by the trial Court. Upon

appreciation of the evidence of the

witnesses, the trial Court found that their

evidence suffers from omissions,

contradictions and improvements. If the

prosecution claims that, the respondents-

accused chased Sanjay [deceased], in that

case the Investigating Officer ought to have

recorded the statements of the eye witnesses

322.1999 Cri.Appeal.odt

immediately. There is considerable delay in

recording the statements of the eye

witnesses, and the same creates doubt about

the prosecution claim that, respondents-

accused participated in the commission of

alleged offences and as a result Sanjay died.

8. Learned counsel further submits

that, Sanjay [deceased] was involved in more

than one serious criminal offences, and the

criminal cases were pending against him for

outraging modesty of woman and also for the

offence punishable under Section 302 of the

Indian Penal Code, and therefore, the

involvement of other persons in the

commission of alleged offence cannot be ruled

out. He submits that, though the blood of the

accused and also deceased was sent to the

C.A.; their blood group is not determined.

Though prosecution claims that, C.A. found

blood of same blood group on the clothes of

the accused as well as deceased, in absence

322.1999 Cri.Appeal.odt

of determination of blood group of deceased

and accused the C.A. report received by the

Investigating Officer in respect of having

blood stains of same group on clothes of

accused as well as deceased is of no avail to

the prosecution.

9. We have given careful consideration

to the submissions of learned APP appearing

for the appellant-State, and learned

counsel appearing for the respondents-

accused. With their able assistance, perused

the entire evidence so as to find out whether

the view taken by the trial Court is

plausible, and the findings of acquittal

recorded by the trial Court are in consonance

with the evidence brought on record or

otherwise.

10. It appears that, the prosecution

examined as many as 22 witnesses. There are

details about name of said witnesses etc.,

322.1999 Cri.Appeal.odt

and the same is extensively discussed by the

trial Court, and therefore, it is not

necessary to repeat/reproduce their names,

suffice it to say that, as and when it is

necessary the reference will be made to them.

11. In order to find out whether the

death was homicidal, suicidal or accidental,

the prosecution examined Dr.Jayantilal

Ramnarayan Jaju as PW-5, who carried out the

postmortem on the body of deceased Sanjay and

found following external injuries on his

person:

1. Traumatic amputation of both radius and ulna near wrist joint [right]. Only small flab of skin is attached. Skin edges are slightly bruised and reddish in colour.

2. Incised wound 2" x 1" x muscle deep, spindle shaped, with clean cut skin edges on right deltoid region, horizontal in direction, posterior end is deeper than anterior end, colour red.

322.1999 Cri.Appeal.odt

3. Traumatic amputation of right index finger at base and of right middle finger in the middle of the proximal phalanx. Skin edges are clean and reddish.

4. Irregular shaped flaps of skin with cutting of deep structures and ulna [left] near wrist joint [left] skin edges are bruised and reddish.

5. Incised wound 4" x 2" bone deep on left forearm anteriorly, in the mid region, horizontal in direction, middle part of wound is deeper than both ends. Skin edges are slightly bruised and reddish.

6. Incised wound 2" x 1" x muscle deep horizontal, middle part of left fore arm, posteriorly edges clean cut and red.

7. Incised wound 1" x ½ x bone deep near t0 injury No.6 colour red.

8. Penetrating wound 1" x 1/2" x 2"

deep on 2nd intercostal space 2 ½" above left nipple. Edges clean cut and red.

322.1999 Cri.Appeal.odt

9. Penetrating wound 1" x 1/2" x 2"

deep on left 6th intercostal space 1" below and medial to left nipple, edges clean cut and red.

10. Penetrating wound 1" x 1/2" x 2"

deep on left 8th intercostal space on anterior axillary line clean cut edges and red in colour.

11. Incised wound 5" x 1" x bone deep horizontal on left temporo-frontal region. The wound is deeper in middle part. Edges are slightly bruised colour red.

12. Incised wound 5" x 1" x bone deep oblique extending from left mastoid process to lower part of left occipital region. The wound is deeper in the middle region. Edges are slightly bruised and red.

13. Incised wound 1" x 1/4" x cutting pinna of left ear. Edges slightly bruised and red.

14. Incised wound 2" x 1" x 1" on lateral aspect of left foot, near

322.1999 Cri.Appeal.odt

heel. Edges clean cut and red vertical in direction.

15. Multiple stab wounds 1" x 1/2" x muscle deep, 3 [three] on right buttock and 6 [six] on left buttock. Both edges of wounds are clean cut and are eliptical in shape. Blood clots present. Reddish colour.

16. Superficial linear abrasions total 6 [six], measuring various lengths from 4" to 6". Colour reddish.

All these injuries were ante mortem.

12. He has also noticed:

1. Traumatic amputation of both radius and ulna near lower end [right].

2. Traumatic amputation of ulna [left] lower end.

3. Fracture of parietal bone [left] with brain matter seen.

13. In addition to this, the following internal injuries were seen:

1. mastoid process [left] lacerated,

322.1999 Cri.Appeal.odt

blood clots around both injuries of the scalp of red colour were seen.

2. laceration 2" in length of left parital lobe, with red blood clots and destruction of manages.

3. Punctured wound opposite injury No. 8, 9 and 10 as described in colo No. 17 on left chest.

4. Punctured in pleura, left lung pale.

Collapsed and punctured at upper end.

5. Paricardium punctured anteriorly at the apex

6. Heart was empty punctured wound 3/4"

in length at apex anteriorly up to left ventricle.

7. ruptured of diaphran of abdomen and peritonium left side, oblique to injury No.10 as described above.

The afore-mentioned injuries are

stated to be ante-mortem in nature by

Dr.Jayantilal Jaju [PW-5] and opinion

322.1999 Cri.Appeal.odt

expressed that, Sanjay died on account of

shock and hemorrhage due to the injuries.

Dr.Jayantilal Jaju [PW-5] noticed 16 external

and 7 internal injuries, which are already

described in detail herein before. The

prosecution proved the postmortem report

through Dr.Jayantilal Jaju [PW-5]. The

defence disputed time of death of Sanjay and

not the findings recorded by PW-5 that,

Sanjay died homicidal death.

14. Dr.Jayantilal Jaju [PW-5] stated

that, Sanjay died on account of shock and

hemorrhage due to injuries mentioned in

column nos.17, 18, 19 and 20, and

accordingly, he prepared postmortem notes.

He stated that, the deceased might have died

not less than 12 hours prior to postmortem,

and the injuries may be possible by weapons

like Articles 7, 8, 14, 15 and 16 shown to

him.

322.1999 Cri.Appeal.odt

During his cross examination, he

fairly conceded that, he has not given any

opinion about the exact time of death before

postmortem. The rigor mortis was seen

completely developed on the body, and

therefore, the death must be prior to 6 to 12

hours. He stated that, the injuries might

have been caused within 12 to 24 hours. The

deceased might have been died within 2-3

minutes after receiving injuries. However, he

cannot state whether all the injuries

sustained were inflicted at one and the same

time. He has also stated that, the dead body

was cold at the time of inquest. However, he

did not mention about the said fact in the

postmortem notes. In the medical

jurisprudence, the cold means the just like

or below room temperature i.e. below 97.3

degree Fahrenheit. The suggestion was given

to him that, it will take at least 20 to 24

hours to become a body cold i.e. up to the

322.1999 Cri.Appeal.odt

room temperature, however, he denied the said

suggestion. However, he stated that, it

requires around 24 hours.

Two things are clear from his

evidence, firstly he did not tell the exact

time of death, and secondly, he could not

tell whether all the injuries sustained were

inflicted at one and the same time.

15. The prosecution examined Popat Rama

Sonwane as PW-1. He is father of deceased.

He stated that, Sanjay was in politics since

two years and worked with accused Rajesh

Sonwane. Accused Rajesh Sonwane was posing

himself as the President of Uttar Maharashtra

Dalit Panthar. Popat [PW-1] further stated

that, accused Rajesh is the son of his real

uncle. Accused Rajesh used to come to his

house. Accused Rajesh resided with his son

for about two years at Jalgaon. He further

stated inter se relationship between the

322.1999 Cri.Appeal.odt

accused amongst each other. He further stated

that, accused Rajesh used to collect money

for the election purpose by cheating the

people. Accused Rajesh was dismissed from the

post of President, and in his place Sanjay

was appointed as President, and therefore,

the quarrel used to take place between

accused Rajesh and Sanjay. Popat Sonwane

[PW-1] has also stated details about enmity

developed between Sanjay [deceased] and

accused Rajesh after appointment of Sanjay as

President of Uttar Maharashtra Dalit Panthar.

Popat Sonwane [PW-1] further stated

that, on 10th July, 1998, his son had been to

RTO office for license. He came back home at

1.30 p.m. and again he went back to the

office at 2.00 p.m. Popat Sonwane [PW-1] came

from the office at 6.00 p.m. However, Sanjay

did not come as usual by 7.00 p.m. and then

the Police came at about 11.30 to 12.00 p.m.

in his house, and told him that, Sanjay was

322.1999 Cri.Appeal.odt

murdered at Paldhi and the dead body was

brought to the Civil Hospital. Then he went

to the Civil Hospital and noticed injuries

all over the body of the Sanjay. Then he went

to the Police Station at about 2.00 a.m. He

received the dead body of Sanjay on 11th July,

1998.

16. During his cross examination, he

stated that, due to appointment of Sanjay as

President of Dalit Panthar for Uttar

Maharashtra in place of accused Rajesh, he

had grudge in his mind. However, Popat [PW-1]

did not file any complaint or suit against

Rajesh Sonwane prior to the alleged incident.

He has denied other suggestions given by the

defence counsel. It appears that, the

prosecution examined Popat [PW-1] so as to

prove the motive. However, it appears from

his evidence that, the allegations are

general in nature. When the prosecution

322.1999 Cri.Appeal.odt

examined eye witnesses, the motive looses its

importance.

17. It appears that, so far main

incident is concerned, as submitted by

learned APP, there are two main witnesses

namely Taher Subhan Patel [PW-4] and Arun

Tarachand Nannaware [PW-11], who alleged to

have seen the incident. Taher Patel [PW-4] in

his deposition stated that, two years

preceding the date of incident, he was

serving in the liquor shop of one Narayan

Seth at Paldhi. The said shop is at a

distance of 25 feet on Chandsar Road. The

said shop opens at 9.00 a.m. and closes at

9.00 p.m.

On 10th July, 1998, he was on duty in

the shop. At about 4.30 p.m. he came out of

the shop for urinal and noticed that, one boy

running from Idgaon Nagar area. He was

running towards bus stand. Taher [PW-4]

322.1999 Cri.Appeal.odt

noticed the injuries on his hand. Taher

[PW-4] stated that, the distance between

liquor shop to bus stand is approximately 150

feet. He saw four persons running after said

boy. One person came from Chandsar road on

bicycle. The four persons following that boy

caught hold him near canal [chari]. They

caught hold his collar and fell him down.

According to this witness, two assailants

were holding knives [suri]; one was holding

vastara i.e. an instrument used for the

purpose of cutting hair, and remaining two

were holding gupti and sickle. One person

came on bicycle. He left the bicycle and

caught hold the said boy. He was holding

sickle. Accused Pitambar was riding cycle.

Taher [PW-4] stated the role played by the

accused persons, and also identified them

before the Court. According to this witness,

number of persons gathered at the spot, and

the accused were threatening them that, they

322.1999 Cri.Appeal.odt

would kill them if they report the incident

to the Police. The accused persons ran along

with weapons. According to this witness, he

told the accused that, he will give statement

to the Police as the incident had happened

near their liquor shop. The accused did not

say anything to him and ran away. The

prosecution claims that, this witness

identified the assailants and also weapons in

the Court.

During his cross examination by the

defence counsel, he stated that, he went

after accused persons to tell them that, he

will state the incident to the Police. He

went after them at a distance of 150 feet,

and then, he went to the shop. One Amrya and

one Anna, the servants, were in the shop when

he went in the shop. He was there till 9.00

p.m. Anna closed the shop as usual. Number of

customers had been to the shop on that day.

He did not tell the incident to any of the

322.1999 Cri.Appeal.odt

customers or Amrya or Anna. The shop is

facing towards highway. The place where the

boy was lying is at the distance of about 25

feet from said shop. The boy was crying

loudly. He did not see Anna or Amrya coming

out to the shop to see the incident. The

entire incident was continued for half an

hour. No police man came on the spot during

incident. One of the boy went at the police

station and also one Zilla Parishad Member

Gulabrao Patil went to the Police Station and

lodged the report. Thereafter, the Police

arrived at the scene of offence. There was

crowd on the spot. He was present at the spot

for about 20 minutes and then he came in the

shop. The incident was continued for about 10

minutes even after he went back to the shop.

He saw the assailants running away from his

shop. At the cost of repetition, he stated

that, he went on his own to tell the accused

that, he is going to depose against them.

322.1999 Cri.Appeal.odt

He stated that, he does not know full name of

any of the accused persons. Then he says

that, he knows their full names. He saw the

incident from the distance of about 10 feet.

He claimed that, he identified all the

accused and also identified the weapons in

their hands at the time of commission of an

offence.

It appears that, though the alleged

incident had taken place on 10th July, 1998,

he went to the Police Station on 12th July,

1998, at the evening time, to give the

statement. He stated that, till that time he

did not state the incident to anybody. He

admits that, the police asked him as to where

he was for two days from the date of

incident. He did not tell his owner or to

Amrya and Anna that, he went to give

statement before the Police. At the cost of

repetition, again he stated that, he told the

322.1999 Cri.Appeal.odt

accused that, he is going to report against

them.

If the deposition of this witness is

considered in its entirety, it does not

inspire confidence. In the first place, he

went to the Police Station for recording his

statement belatedly on 12th July, 1998. No

reasons are forthcoming from him why

belatedly he went after two days to give such

statement to the Police, and more

particularly when he repeatedly told the

accused by traveling the distance of 150 feet

that he is going to give statement to police

and also to depose before the Court for their

involvement in the alleged incident. In the

first place, it is highly improbable that, he

had courage to tell the accused that he is

going to give statement to police and depose

before Court against them for their

involvement in the commission of offence,

when they were having deadly weapons in their

322.1999 Cri.Appeal.odt

hand, and they were threatening that, if

anybody reports the incident to the Police,

they will kill the said person. If this

witness had courage to tell the accused that,

he is going to depose against them, in that

case his conduct not to tell about the

incident to Amrya or Anna or any other person

or the owner of the liquor shop, though after

the said incident, he was serving in the

liquor shop till 9.00 p.m. and giving

statement to the Police after two days of

incident creates serious doubt about his

claim that he actually witnessed the

incident. His conduct appears to be unnatural

inasmuch as till he went to the Police

station and gave statement on 12th July, 1998,

he did not tell anything about the incident,

either to his other colleagues; who were

working with him or the hotel owner or any

other person for two days, when he noticed

such ghastly incident.

322.1999 Cri.Appeal.odt

18. Another witness namely Arun

Tarachand Nannaware was examined by the

prosecution as PW-11. The prosecution claims

that, he witnessed the incident. In his

evidence before the Court he stated that, he

resides in the area known as 'Idganboradi in

Paldhi. The same is towards Chandsar road.

On 10th July, 1998, he came back from the

field work at 2.00 p.m. It was a Friday and

there was weekly Bazar of Paldhi. At about

4.00 to 4.30 p.m. he started going towards

the place of bazar from his house. When he

was proceeding, he found one person coming

out from the house of the accused Raju

Sonwane. His hand from the wrist was cut. It

was not separated but it was bleeding. The

said person ran towards bus stand. Four

persons from the house of accused Raju

Sonwane came out and ran after that person.

Accused Pitambar Sonwane came out from the

house of accused Raju Sonwane and followed

322.1999 Cri.Appeal.odt

him on bicycle. Accused Rajesh was holding a

suri. He further stated about weapons held by

each of the accused in their hands, and

accused were saying that, they will not leave

said injured person. He went back to his home

thinking that, he should not interfere. He

further stated that, after waiting for about

15 minutes, he again came out from the house

for going to Bazar. When he was proceeding to

the place of Bazar, he found all the five

accused coming towards the house of Raju.

They were holding blood stained weapons.

Their clothes were also stained with blood.

They were saying that, if anybody tells the

Police, they will cut that person in similar

fashion. Thereafter, this witness went

towards the place of Bazar and found the same

person, who ran away from the house of Rajesh

lying dead near the water channel [chari]

adjacent to the highway. He was not knowing

the said person at that time. He identified

322.1999 Cri.Appeal.odt

the accused persons sitting in the Court room

and identified the weapons, which were in

their hands. It appears that, the statement

was recorded after four days of the incident

by the Police on 15th July, 1998. He stated

that, he was out of station due to fear for

four days from the date of incident.

19. During his cross examination, he

stated that, he is not aware about the name

of deceased. He did not tell the Police name

of the deceased. Santosh Eknath Salunkhe is

distantly related to him. He is not aware

whether said Santosh Salunkhe is relative of

deceased Sanjay. The suggestion was given to

him that, there are four lanes in between his

house and that of Rajesh Sonwane. However, he

denied suggestion and stated that, there is

only one lane in between their houses. He

further stated that, there is a road from his

house, which directly goes to the bus stand.

It is not necessary to go to the bus stand by

322.1999 Cri.Appeal.odt

crossing the house of Rajesh. Rajesh owns one

tin house and one hut. Both houses are

adjacent to each other.

20. He further stated that, he does not

know whether Sanjay came out of the hut or

tin shed. He saw him near the gate of the

house. He saw him from the distance about

30-40 feet. The number of persons were on the

road at that time. However, nobody obstructed

accused. It appears that, he was confronted

with his statement portion marked 'A' and

'B'. However, he stated that, the said

portion was not stated by him to the

Investigating Officer. He did not tell

Investigating Officer that, all the five

persons were saying not to leave Sanjay. He

saw the accused person coming back at 4.30

p.m. He might have been at a distance of 500

feet from his house. He did not tell his wife

that, he was going out of town after such

incident. He admitted that, he went to the

322.1999 Cri.Appeal.odt

police Station on 15th July, 1998 and gave his

statement.

21. Admittedly, he gave statement before

the Police after 5 days of the incident.

Though he claims that, there is only one lane

in between his house and the house of the

accused. However, the defence has shown that,

there are more than one lanes between the

house of PW-11 and the house of accused

persons. It has come in the evidence of PW-4

and PW-11 that, the number of persons were on

the road; it is a day of weekly Bazar.

However, none of the persons, who saw such

incident, has promptly given statement to the

police.

22. We have also considered the report

received from the Chemical Analyzer.

Admittedly, the blood group of the accused

and the deceased was not determined. In

absence of determination of blood group of

322.1999 Cri.Appeal.odt

accused and the deceased, the report received

from the C.A. looses its importance. Be that

as it may, the said report can be considered

as corroborative piece of evidence. However,

since the evidence of PW-4 and PW-11 itself

is not trustworthy, the report received from

the C.A. is of no use to the prosecution.

23. The trial Court, upon scrutiny and

appreciation of the entire evidence brought

on record, reached to the conclusion that,

the evidence of alleged eye witnesses i.e.

Taher [PW-4] and Arun [PW-11] is not

trustworthy and does not inspire confidence.

As per the prosecution case, though there

were number of persons gathered at the spot

of incident, and the dead body was lying by

the side of the highway, and also it was a

day of weekly bazar, none of the persons gave

prompt statement to the Police or supported

the prosecution case. A mere allegation of

enmity is not sufficient to prove the guilt.

322.1999 Cri.Appeal.odt

The Medical Officer [PW-5] admitted in his

cross examination that, he did not tell the

exact time of death. There was delay in

giving statement to the police by Taher

[PW-4] and Arun [PW-11]. There is no

corroboration to their evidence. The recovery

of weapon is made after lapse of considerable

time from the place which is open and

accessible to all, and therefore, the said

looses its significance. It is further

observed by the trial Court that, the dead

body alleged to have been shown cool just

within half an hour of death, and as per the

medical jurisprudence, it seems to be

impossibility. The pieces of chapati were

found in the stomach of the deceased from

which it can be safely stated that, the

deceased might have been died within two

hours after the last meals. For sake of

arguments, the hearsay evidence of Popat

[PW-1] is accepted that the deceased took

322.1999 Cri.Appeal.odt

meals and went to RTO office at 1.00 to 1.30

p.m. still the death of deceased must have

been caused not after 3.00 to 3.30 p.m. on

10th July, 1998. The prosecution has not

brought on record the evidence to show that

as to how the deceased reached at Paldhi from

RTO office, Jalgaon. As already stated the

deceased was first seen by the prosecution

witnesses at 5.00 p.m. coming out of the

house of accused Rajesh on 10th July, 1998.

If it is accepted that he was coming out of

the house of the accused at 5.00 p.m. in that

case there are no circumstances / evidence

brought on record by the prosecution as to

what happened in between 2.00 p.m. to 5.00

p.m., since Sanjay was at Jalgaon in RTO at

2.00 p.m. as per the prosecution case. On the

whole the evidence of prosecution witnesses

cannot be safely accepted. The possibility

that the deceased might have died in between

3.00 to 3.30 p.m. somewhere else and his dead

322.1999 Cri.Appeal.odt

body might have been brought and left by the

side of the high way, also cannot be ruled

out. The accused have their immovable

properties at Paldhi, and therefore, the

villagers knew the accused, in such

circumstances, it is highly improbable that,

nobody will come forward to disclose the

truth.

24. The trial Court has also made

reference to the suggestion given by the

defence about pendency of criminal cases

against deceased Sanjay. The trial Court has

also reached to the conclusion that, there is

considerable distance between the place where

the dead body was found and the house of the

accused. The trial Court has also made

reference to the evidence of Investigating

Officer wherein he has stated that, he

interrogated the servants of the liquor shop

immediately after the incident but nobody

disclosed him the incident. It has come in

322.1999 Cri.Appeal.odt

the evidence that, the house of the accused

is surrounded by hutment and there were

number of persons, who witnessed the incident

of actual murder as well as alleged incident

that had taken place near the house of the

accused Rajesh. However, none of the person

is coming forward to give the statement to

the police. The alleged place of incident

where the incident had taken place is just

200 meters from the bus stand and it is near

highway and there is also one school and a

footpath by the side of the place of incident

and on that day there was weekly bazar. It is

impossible that, none of the persons, who

witnessed such alleged incident, has not

given statement to the police. On the whole

the trial Court found that, the evidence

brought on record by the prosecution does not

inspire confidence and it is not safe to

convict the accused.

25. Upon independent scrutiny and re-

322.1999 Cri.Appeal.odt

appreciation of the evidence, and in

particular the evidence of eye witnesses,

medical evidence and also other evidence, we

are of the considered view that, the findings

recorded by the trial Court are not perverse

and the view taken is plausible. The Supreme

Court in the case of Muralidhar alias Gidda

and another Vs. State of Karnataka1 in para

12 held thus:-

12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs.State, AIR 1954 SC 1, Madan Mohan Singh Vs. State of U.P., AIR 1954 SC 637, Atley Vs. State of U.P., AIR 1955 SC 807, Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217, Balbir Singh Vs. State of Punjab, AIR 1957 SC 216, M.G.Agarwal Vs. State of Maharashtra, AIR 1963 SC 200,

1. 2014 [4] Mh.L.J.[Cri.] 353

322.1999 Cri.Appeal.odt

Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286, Khedu Mohton Vs. State of Bihar, [1970] 2 SCC 450, Shivaji Sahabrao Bobade Vs. State of Maharashtra, [1973] 2 SCC 793, Lekha Yadav Vs. State of Bihar, [1973] 2 SCC 424, Khem Karan Vs. State of U.P., [1974] 4 SCC 603, Bishan Singh Vs. State of Punjab, [1974] 3 SCC 288, Umedbhai Jadavbhai Vs. Sate of Gujarat, [1978] 1 SCC 228, K.Gopal Reddy Vs. State of A.P., [1979] 1 SCC 355, Tota Singh Vs. State of Punjab, [1987] 2 SCC 529, Ram Kumar Vs. State of Haryana, 1995 Supp [1] SCC 248, Madan Lal Vs. State of J & K, [1997] 7 SCC 677, Sambasivan Vs. State of Kerala, [1998] 5 SCC 412, Bhagwan Singh Vs. State of M.P. [2002] 4 SCC 85, Harijana Thirupala Vs. Public Prosecutor, High Court of A.P., [2002] 6 SCC 470, C. Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC 1, State of Karnataka Vs. K.Gopalakrishna,

322.1999 Cri.Appeal.odt

[2005] 9 SCC 291, State of Goa Vs. Sanjay Thakran, [2007] 3 SCC 755 and Chandrappa Vs. State of Karnataka, [2007] 4 SCC 415. It is not necessary to deal with these cases individually.

Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate Court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the powers of the appellate Court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate Court is generally

322.1999 Cri.Appeal.odt

loath in disturbing the finding of fact recorded by the trial court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate Court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate Court in interfering with such conclusions is fully justified;

and (iv) Merely because the appellate Court on re-

appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if

322.1999 Cri.Appeal.odt

the view taken by the trial Court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate Court in the judgment of the trial Court.

[Underlines supplied]

26. In that view of the matter, we are

unable to persuade ourselves to cause

interference in the order of acquittal,

hence, the appeal stands dismissed. The bail

bonds of the respondents-accused shall stand

cancelled.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC