Bombay High Court
State Of Mah. Thru The Pso vs Bhaskar S/O Haridas Gaikwad on 20 January, 2018
Bench: Vasanti A. Naik
2001-cr.apeal-Judgment 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 703 OF 2006
APPELLANT :- State of Maharashtra, through the Police
Station Officer,, Warora, Distt.Chandrapur.
...VERSUS...
RESPONDENT :- Bhaskar s/o Haridas Gaikwad, Aged about
30 years, Occ. Cultivator, R/o Tekari, Tq.
Sindewahi, Distt. Chandrapur.
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Mr. K.R.Lule, Addl.Public Prosecutor for the appellant.
Mr.Rahul Tajne, counsel h/f Mr.R.P.Joshi, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ROHIT B. DEO
, JJ.
DATED : 20.01.2018
O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)
This is a state appeal against the judgment of the Sessions
Judge, Chandrapur dated 09/10/2006 in Sessions Case No.75 of 2005
acquitting respondent-Bhaskar of the offence punishable under section
302 of the Penal Code.
2. As per the prosecution case, on 21/03/2005 accused-
Bhaskar assaulted Rushi Jivtode (deceased), who was the police patil of
2001-cr.apeal-Judgment 2/14
the adjoining village by a knife and wooden stump as a result of which,
Rushi died on the spot. It is the case of the prosecution that Bhaskar
had a grudge against Rushi as he believed that Rushi had killed his
daughter and his wife by practicing witchcraft. The incident dated
21/03/2005 was witnessed by P.W.-1 Mahadeo, P.W.-5 Someshwar,
P.W.-6 Sadashiv, P.W.-7 Vilas and P.W.-8 Namdeo. The incident was
reported by P.W.-1 Mahadeo to the Police Station and on the basis of
the said complaint, the first information report was registered against
Bhaskar for the offence punishable under section 302 of the Penal Code.
The investigation commenced after the investigating officer visited the
spot and prepared the spot panchnama and the inquest panchnama. A
wooden stump, a chappal stained with blood, plain earth and the earth
containing blood were seized in the presence of witnesses. Bhaskar was
arrested and his clothes were seized. It is the case of the prosecution
that while in custody Bhaskar made a disclosure leading to the
discovery of knife and at his instance a knife was seized from the drain
where the incident had occurred. The blood samples, the clothes of the
deceased and the knife were sent to the Chemical Analyzer and after
the completion of the investigation, the charge-sheet was submitted in
the court of Judicial Magistrate First Class, Sindewahi. The Judicial
Magistrate First Class committed the case to the court of sessions for
trial. The charge was read over and explained to the accused to which
he pleaded "not guilty" and claimed to be tried. The prosecution
2001-cr.apeal-Judgment 3/14
examined as many as 12 witnesses and on an appreciation of the oral
and the documentary evidence, the learned Sessions Judge held that
though the prosecution had proved that Rushi Jivtode had died a
homicidal death, the prosecution had failed to prove that Bhaskar had
committed the offence of murder. The learned Sessions Judge,
Chandrapur acquitted Bhaskar of the offence punishable under section
302 of the Penal Code. The judgment of the learned Sessions Judge is
assailed by the State Government in this appeal.
3. Shri Lule, the learned Additional Public Prosecutor for the
State submitted that the trial court was not justified in holding that the
prosecution had failed to prove that Bhaskar had committed the murder
of Rushi. It is submitted that the evidence of the eye witnesses
supported the case of the prosecution and some minor contradictions in
the evidence of P.W.-1 Mahadeo, P.W.-7 Vilas and the other eye
witnesses were not enough for holding that the evidence of the eye
witnesses did not inspire confidence. It is submitted that though some
of the witnesses had turned hostile, the evidence of the eye witnesses
namely P.W.-1 Mahadeo Sherkure, P.W.-5 Dnyaneshwar Choudhari,
P.W.-7 Vilas Sherkure clearly supported the case of the prosecution that
Bhaskar had assaulted Rushi, who was lying in the drain with a wooden
stick or stump. It is submitted that the evidence of P.W.-9 Sunita, the
widow of Rushi would clearly show that Bhaskar had threatened that he
2001-cr.apeal-Judgment 4/14
would kill Rushi as he has killed his daughter and wife by practicing
witchcraft. It is stated that it is also clear from the documents seized
from the diary of Rushi that the name of Bhaskar was mentioned in the
list of persons from whom Rushi Jivtode had apprehended danger. It is
submitted that the trial court did not appreciate the evidence in the
right perspective while acquitting Bhaskar of the offence punishable
under section 302 of the Penal Code.
4. Shri Tajne, the learned counsel for respondent-Bhaskar,
supported the judgment of the trial court. It is submitted that in an
appeal against acquittal, it would not be permissible for the court to
reverse the judgment of acquittal even if two views are possible. It is
submitted that the evidence of the eye witnesses was full of
contradictions and there were discrepancies pertaining to material facts
in the evidence of P.W.-1 Mahadeo, P.W.-5 Dnyaneshwar and P.W.-7
Vilas. It is submitted that P.W.-6 Sadashiv and P.W.-8 Namdeo, who
according to the prosecution were the eye witnesses had turned hostile
and they did not support the case of the prosecution. It is submitted
that the trial court rightly held that the panchas to the recovery had
turned hostile and there was no evidence that the clothes seized from
the accused were wrapped and sealed in the presence of witnesses. It is
submitted that the clothes of Bhaskar were kept open throughout and
the possibility of tampering with the same was rightly noted by the trial
2001-cr.apeal-Judgment 5/14
court. It is submitted that in view of the inconsistency in the evidence
of the eye witnesses, the trial court rightly held that the prosecution has
failed to bring home the guilt of the accused. It is stated that the blood
group of the accused as well of the deceased was the same and hence
nothing would turn on the chemical analyzer's report, more so when the
clothes of the accused were not sealed. The learned counsel sought for
the dismissal of the appeal.
5. On a perusal of the record and proceedings as also the
judgment of the trial court, it appears that the following points arise for
determination in this appeal:-
(I) Whether the trial court has rightly acquitted the accused
of the offence punishable under section 302 of the Penal
Code?
(II) What order?
While deciding this appeal, it would be necessary to
remind ourselves that we are dealing with the judgment of acquittal and
hence, it would be necessary to bear in mind the well settled principle
of law that where two views are possible, the judgment of the trial court
cannot be interfered with. By keeping this principle in view, it would be
necessary to consider the evidence tendered by the prosecution in
support of its case. To prove the guilt of the accused, the prosecution
had examined as many as 12 witnesses. P.W.-1 Mahadeo Sherkure was
2001-cr.apeal-Judgment 6/14
the informant. He had deposed that he was at his residence at 8.00 p.m.
when he heard the shout "Melo Re Baap". It is deposed by Mahadeo
that Bhaskar was standing on the road in front of the house of
Tulshiram and deceased Rushi was lying in the drain. He stated that he
went near the drain and asked Bhaskar, who was lying in the drain. He
deposed that Bhaskar then told him that it was Rushi Patil, who had
ruined his life and that he would also ruin Rushi's life. Mahadeo
deposed that he then went to the hotel of Namdeo and met his brother
Vilas at the hotel, who telephonically informed the police. It is stated
that the police came to the spot and the first information report was
registered. In his cross-examination, Mahadeo admitted that his house
is in Ward No.2, the incident occurred in Ward No.3 and the accused
and the deceased reside in Ward No.1. Mahadeo admitted that the
street light near the spot was not burning. He admitted that the spot is
surrounded by several houses. He admitted that while lodging the
report, he did not state that the person lying in the drain was a resident
of their village. He admitted that till the police came after half an hour,
he did not go to the spot to find out who was lying in the drain. He
admitted that his signature on exhibit-37 (first information report) was
obtained in the police station. He admitted that when the police
reached the spot, he was not there and further admitted that he had
gone to his house. He admitted that the villagers were suspecting that
Rushi was killing the villagers by practicing witchcraft. He admitted that
2001-cr.apeal-Judgment 7/14
he was on good terms with the deceased and his brother was the
sarpanch and that Bhaskar belongs to the rival group.
6. The prosecution examined P.W.-2 Suraj Ramteke as a
panch witness for the disclosure statement and the recovery of the
adkitta (betel-nut cracker) and the knife. P.W.-3 Yadav Lokhande, the
other panch witness was also examined to prove the statement of the
accused and the recovery of the adkitta and the knife. Both these
witnesses however turned hostile. P.W.-4 Atmaram Shrirame was
a panch witness to the seizure panchanama in respect of
the chit that was recovered from the diary of Rushi. P.W.-5
Dnyaneshwar Choudhari deposed that he was at the panthela when the
incident occurred at 8.00 p.m. He deposed that he heard the noise of
beating and he found that Bhaskar was assaulting a person who was
lying in the drain with a stick. He then stated that the person lying in
the drain was Rushi Patil. It was admitted by Dnyaneshwar in his cross-
examination that there was no electric supply at the time of incident
and that he went to his house after he heard the noise of beating. He
also admitted that due to darkness, he did not understand who was
beating the other with a stick.
7. P.W.-6 Sadashiv Waghmare turned hostile and though he
was examined as an eye witness, he deposed that he did not see
2001-cr.apeal-Judgment 8/14
anything. P.W.-7 Vilas deposed that he went to the pan-stall of Suresh
at 8.00 p.m. and he ran to the spot where Mahadeo was standing. He
stated that Bhaskar was also present at the spot and Bhaskar told him
that Rushi had killed his wife and daughter and therefore he was
assaulting Rushi. He deposed that Bhaskar took a wooden stick from
the fencing and started beating Rushi. In the cross-examination, Vilas
admitted that P.W.-1 Mahadeo is his cousin and that he was a member
of the gram panchayat at the relevant time. He denied the suggestion
that when he was at the hotel, Mahadeo told him about the incident. He
deposed that till the police arrived, he was at the hotel. He denied the
suggestion that due to gram panchayat elections, he was falsely
deposing against Bhaskar. P.W.-8 Namdeo had deposed that he was the
owner of the hotel, pan-stall and the STD booth. He deposed that at
8.00 p.m. Vilas came to the thela and asked him to dial the number of
the police. It is stated that Vilas informed the police about the incident.
He deposed that after some time, Bhaskar came to his hotel and asked
for mixture. He deposed that Bhaskar had come to his hotel with
Hemraj and Hemraj had called the police. P.W.-9 Sunita is the widow
of Rushi. She deposed that the wife and daughter of Bhaskar had died
and that he had threatened Rushi that he would kill him as Rushi had
killed his daughter and wife. In her cross-examination Sunita admitted
that people were suspecting that her husband was practicing witchcraft.
She admitted that she did not say anything when accused Bhaskar said
2001-cr.apeal-Judgment 9/14
that he would kill Rushi. P.W.-10 Suresh Sherkure deposed that he was
at his hotel when the incident occurred at 7.30 p.m. He deposed
that he went to the spot after hearing some noise. He stated that
he saw that Bhaskar was beating Rushi by a wooden log. In his
cross-examination he admitted that Vilas and Mahadeo are his cousins.
P.W.-11 Dnyaneshwar Jivtode deposed that Rushi was his father and
police had seized certain documents from the diary of his father. In his
cross-examination Dnyaneshwar admitted that Shyamrao Jivtode is his
real uncle and Prabhu and Uttam are his cousin uncles. He admitted
that his uncles had also suspected that his father practised witchcraft.
P.W.-12 Nandkumar, the investigating officer deposed about the
recovery and the seizure. He admitted that the houses of Kulmethe,
Waghmare and Chaudhari are near the spot of incident. He admitted
that though the statements of these persons were recorded, they were
not examined as witnesses.
8. The postmortem report showed that there were 5
lacerated wounds, 5 incised wounds and 5 stab wounds on the dead
body of Rushi. Some of the injuries were having sharp edges and the
depth of the stab injuries could not be ascertained. The incised and the
stab wounds were deep and were ranging between 2.5 centimeters to 8
centimeters. There were internal injuries as could be seen from the
autopsy report viz. haematoma in the left and right temporal region
2001-cr.apeal-Judgment 10/14
intracranial haemorrhage, fracture of third rib, the peritoneum was
torn, the left kidney was lacerated and intra-peritoneal bleeding was
present. The probable cause of death was said to be haemorrhage
shock by reason of intra-peritoneum intra-thoracic haemorrhage due to
multiple stab injuries.
9. On an appreciation of the aforesaid evidence, the trial
court held that the evidence of the prosecution witnesses was full of
inconsistencies and was not reliable and that the prosecution had failed
to establish the charge levelled against Bhaskar beyond the shadow of
doubt and hence Bhaskar was entitled to be acquitted. It would be
necessary to consider whether the prosecution case is supported by the
oral evidence of the eye witnesses. P.W.-1 Mahadeo was at his residence
when he heard the shout and he came out on the road near the spot of
incident and saw that Bhaskar was standing on the road and deceased
Rushi was lying in the drain. This witness has deposed that he then
went to the hotel of Namdeo and met his brother Vilas, who
telephonically informed the police about the incident. It is however,
surprising that the house of this witness is in ward No.2 and the
incident occurred in ward No.3, moreover the bulb/light near the spot
was not burning. It is further surprising that till the police came half an
hour later, neither this witness nor Vilas nor anybody from the hotel of
Namdeo went to the spot to find out who was lying in the drain. P.W.-1
2001-cr.apeal-Judgment 11/14
Mahadeo has admitted in his cross-examination that when the police
reached the spot, he was not there as he had gone to his house. In our
view, a person witnessing a crime would not go to his house when he
had informed the police about the incident and the police was about to
reach the spot. Moreover, Mahadeo had admitted that he was on good
terms with Rushi and Bhaskar belongs to the rival group in the village
panchayat of which his brother was the sarpanch. P.W.-5 Dyaneshwar
Chaudhari appears to be the second eye witness. This witness has
deposed that Bhaskar was assaulting a person lying in the drain with a
stick and the said person was Rushi Patil. This witness also admitted in
his cross-examination that as soon as he heard the noise of beating, he
went to his house. He has further admitted in his cross-examination
that there was no electricity at the time of incident and due to darkness,
he did not know who was beating and who was beaten. P.W.-6
Sadashiv was declared hostile and P.W.-7 Vilas, who is also examined as
an eye witness did not corroborate the testimony of P.W-1 Mahadeo.
P.W.-1 Mahadeo had deposed that after finding Bhaskar on the road
and a person lying in the drain, he went to the hotel of Namdeo, met
Vilas in the hotel and Vilas had called the police to the spot. However,
Vilas deposed that when he was at the pan-stall of Suresh at 8.00 p.m.,
he ran to the spot where Bhaskar was assaulting Rushi. P.W.-7 Vilas has
deposed that Bhaskar took a wooden stick from the fencing and started
beating Rushi. The evidence of P.W.-1 Mahadeo and P.W.-7 Vilas is full
2001-cr.apeal-Judgment 12/14
of glaring inconsistencies. According to P.W.-1 Mahadeo, P.W.-7 Vilas
was not on the spot whereas Vilas has denied in his cross-examination
that he was informed at the hotel of Namdeo by Mahadeo about the
incident. P.W.-8 Namdeo Dhone, who is examined as an eye witness
turned hostile and was declared as such. P.W.-10 Suresh Sherkure
deposed that he was at his hotel at 7.30 p.m. when he went to the spot
after hearing some noise. He had deposed that Bhaskar was beating
Rushi by a wooden log. He has admitted that P.W.-7 Vilas and P.W.-1
Mahadeo are his cousins. There is no consistency in the evidence of
P.W.-1 Mahadeo, P.W.-5 Dnyaneshwar, P.W.-7 Vilas and P.W.-10
Suresh Sherkure, whatsoever, pertaining to the prosecution story. None
of the so called eye witnesses have deposed about Bhaskar assaulting
Rushi with a knife and adkitta. There are severe stab and incised
injuries on the dead body of Rushi. The four witnesses viz. P.W.-1
Mahadeo, P.W.-5 Dnyaneshwar, P.W.-7 Vilas and P.W.-10 Suresh speak
of the assault. Two witnesses have deposed about Bhaskar assaulting
Rushi by a stick or a wooden log. None of the witnesses have deposed
that Bhaskar had assaulted Rushi with the knife or adkitta. There are
material discrepancies and inconsistencies in the evidence of the four
witnesses. It does not appear that the said witnesses are desirous of
telling the truth or that they had actually witnessed the crime. The
other oral evidence viz. the evidence of the Investigating Officer, the
widow and the son of Rushi would not be helpful to the prosecution for
2001-cr.apeal-Judgment 13/14
proving its case. They had not seen Bhaskar assaulting the deceased
with the knife or adkitta. Both the panchas to the disclosure statement
and the recovery panchanama had turned hostile. P.W.-1 Mahadeo and
P.W.-7 Vilas were not on good terms with Bhaskar and belonged to the
rival group in the gram panchayat. The chemical analyzer's report
showed that the clothes of the accused were stained with human blood
of group AB. The blood samples of Rushi and Bhaskar were referred for
analysis, but their blood group could not be determined. Moreover, the
clothes of the accused were kept open throughout and after the seizure
they were not wrapped and sealed in the presence of witnesses. The
possibility of tampering with the same could not have been ruled out.
Though Yashwant Suryawanshi, Dadaji Narnaware, Yashwant Bahokar
were present at the pan-stall at the time of the incident they were not
examined by the prosecution as witnesses though their statements were
recorded. The prosecution also did not assign any reason for not
examining the independent witnesses. The investigating officer's
evidence in regard to the recovery of weapons did not assume
significance since none of the eye witnesses had deposed that they had
seen Bhaskar assaulting Rushi with a knife or adkitta and both the
panchas to the recovery had turned hostile. In the aforesaid set of facts,
the trial court rightly held that though the death of Rushi was
homicidal, the prosecution had utterly failed to prove the guilt of the
accused beyond reasonable doubt. The approach of the trial court in
2001-cr.apeal-Judgment 14/14
appreciating the evidence on record is just and proper. In the
circumstances of the case, there was no reason to hold that Bhaskar was
guilty of the crime. In this case, another view in the matter was not
possible on the basis of the evidence adduced in the case. Even if two
views are possible on the basis of the evidence adduced in a criminal
case, one pointing to the guilt of the accused and the other to his
innocence, the view that is favourable to the accused should be
adopted. The said principle is well settled and it would not be possible
in the circumstances of the case to interfere with the findings recorded
by the trial court.
In the result, we dismiss the appeal with no order as to
costs.
JUDGE JUDGE
KHUNTE
