Bombay High Court
Jaywant Ramchandra Sawant And Ors vs The State Of Maharashtra on 12 December, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:38197
1/19 J APEAL-303-97.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.303 OF 1997
Jaywant Ramchandra Sawant & Ors. .. Appellants
Versus
The State of Maharashtra .. Respondent
...
Mr.Veerdhawal Deshmukh, Appointed Advocate for the
Appellants.
Mr.S.R.Agarkar, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
RESERVED ON : 15th SEPTEMBER, 2023
PRONOUNCED ON: 12th DECEMBER, 2023
JUDGMENT:
-
1. The present Appeal is fled by the Appellants, who stood
convicted by the learned Sessions Judge, Raigad, Alibag on
20/05/1997 in Sessions Case No.181 of 1990, alongwith eight
other accused persons. Out of the thirteen accused being tried
under Sections 147, 148, 149 read with Section 307 of the
Indian Penal Code (hereinafter referred to as, "the IPC"), fve
Appellants are convicted for committing the offence
punishable under Section 326 read with Section 149 of the IPC
and each of them is sentenced to suffer rigorous imprisonment
(R.I.) for fve years and pay fne of Rs.2,000/- each, in default,
to suffer R.I. for one year. They are also convicted for the
offence punishable under Section 148 of the IPC and sentenced
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to suffer R.I. for one year and pay fne of Rs.500/-, in default to
suffer R.I. for three months.
The sentences imposed are directed to run concurrently.
Rest of the eight accused stood acquitted of the charge
under Sections 147, 148, 149 as well as Section 307 of the IPC.
2. The Appeal fled by the Appellants came to be admitted
on 27/05/1997 and the Appellants were held entitled to be
released on bail and the sentence imposed upon them was
suspended.
During the pendency of the Appeal, Appellant Nos.2 to 5
are reported to be dead as per the police report and pursuant
to the death certifcate, which were produced before the Court
on 06/08/2012, the Appeal against Appellant Nos.2, 3, 4 and 5
(Orig. Accused Nos.6, 10, 11 and 13) stand abated.
As a result, the Appeal is only prosecuted by Accused
No.1-Jaywant Ramchandra Sawant.
Since the Appellant remained unrepresented, Advocate
Veerdhawal Deshmukh was appointed to represent the
Appellant and the paper-book was made available to him, so
that he could effectively represent the Appellant.
The learned A.P.P. Mr.S.R.Agarkar advanced his
arguments on behalf of the State, opposing the Appeal.
3. It is the case of the prosecution all the thirteen accused
persons on 25/01/1990 formed an unlawful assembly and at
about 3.30 p.m., in prosecution of their common object of
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committing murder of one Yashwant Raghu Patil (PW 11),
committed an offence of rioting, being armed with deadly
weapons like sword, iron bar, stick etc. and, hence, they faced
charge under Sections 147 and 148 of the IPC. The
prosecution allege that they attempted to commit murder of
Yashwant Raghu Patil, with such an intention or knowledge
and under such circumstances that, if by that act, they had
caused his death, they had been guilty of murder and on
causing hurt to Yashwant, they committed an offence
punishable under Section 307 read with Section 149 of the
IPC.
4. On framing of the charge, all the accused persons pleaded
innocence and chose to be tried.
5. In order to support the case of the prosecution,
Yashwant Patil, the injured examined himself as PW 11 and he
narrated the incident, which took place on 25/01/1990 at
around 3.30 p.m., when he was sitting in front of Vasant Vihar
Hotel at Pezari Naka. His wife Rekha and one Supriya Patil
(PW 12) were to go to Alibag by S.T.bus and, since, they were
to travel to Alibag by bus, he happened to be at Pezari Naka to
help them to board the bus. At that time, from the side of
Alibag, one Maruti van, which was described by him to be of
biscuit colour, proceeding towards Khopoli stopped at Pezari
Naka and 5 to 6 persons stepped out of it. He gave the names
of the persons as Naresh, Sanjay and Kailas Dhumal,
Nandkumar Mhatre, Jaya Sawant and Stivan.
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The Appellant before me is, Jaya Sawant.
Naresh Dhumal, on uttering the abuses, approached him
with an intention to eliminate him, when Nandkumar gave a
blow of iron bar on his back. He started running away, but
was chased by the accused persons and he was surrounded in
the passage of laboratory of the school.
The sequence of events is narrated by the injured in the
following words :-
"Thereafter while running followed me. They surrounded me
in a passage of laboratory of the School. Kailas Dhumal raised
a sword in his hand to gave blow on my chest and to avoid that
blow, I raised my hand and that blow of sword hit on my left
hand. Prakash Dhumal made attempt to beat me and that
time I also raised my hand. The blow hit on my right hand.
One blow hit on my right thigh. One blow also hit on my left
knee. That blow was given by Jaya Sawant. Naresh Dhumal
gave blow on my head on left side. Others also gave blows and
I fell down while crying to save me. After some time police
came there. Police lifted me and that time Rekha and Supriya
also came in the school and they also assisted to me to lift me.
They took me in a Govt. Hospital at Pezari. Doctor was not
present there, so I was brought to Civil Hospital Alibag. I was
unconscious when I was shifted to Alibag. On next day, I
regained my conscious when I was admitted in the Hospital at
Alibag. P.S.I. Mhatre recorded my statement on 26.01.1990 in
the hospital."
The injured (PW 11) attributed a blow on his left knee to
the present Appellant and he identifed the swords and iron
bars, as the weapons of assault, which were produced before
the Court and he also identifed the accused before the Court as
the assailants.
The injured (PW 11) was admitted in the Civil Hospital at
Alibag for 21 days.
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6. To corroborate the above version of the injured, the
prosecution examined several witnesses and the prime
witnesses are the persons from the police party, which was
posted at Pezari Naka on the date of the incident in a bivouac
shelter, as there was tension in Pezari Naka between the two
groups, one lead by Peasants and Worker party and other led
by Agri-Sena and Congress. The frst set of witnesses are PW
3, PW 4, PW 5 and also PW 7. The second set of witnesses, for
corroborating the version of the injured (PW 11) include PW 1,
owner of the Vasant Vihar Hotel, where the injured was resting
and PW 2, the waiter in the hotel. The third set of witnesses,
include one Supriya Jaywant Patil (PW 12), who was present
on the spot alongwith wife of the injured, Yashwant.
7. In order to ascertain, whether the aforesaid prosecution
witnesses have corroborated the injured Yashwant, I must
scrutinize the depositions of these witnesses minutely.
PW 1 and PW 2 are concerned, were present in Vasant
Vihar Hotel at Pezari Naka, but they are unable to render any
backing to the injured as PW 1, the owner of the hotel has
deposed that the alleged incident had occurred some six to
seven years back, and he do not remember the exact date.
Damodar Patil (PW 1) state that he was at the counter of
the hotel and at that time Yashwant Raghu Patil alongwith two
other persons were in the Varanda, sitting on the bench. He,
however, told the Court at 10.00 a.m., Yashwant Master stood
from the place where he was sitting and entered in his hotel and
went towards the school building by the rear side door of the
hotel, though he is not aware why he did so.
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He did not support the case of the prosecution, as he
states that except this, he has not seen any other incident and
he is not aware as to what had happened later on. He was
declared hostile and the Public Prosecutor cross-examined
him, but nothing positive could be extracted from him.
Similar is the evidence of PW 2, who was working as
waiter in the hotel. He was also declared hostile and when
cross examined by the Public Prosecutor, he was confronted
with his statement given to the police, that Yashwant Master
ran towards the school from the hotel at around 3.30 p.m.. He
was also confronted with the portion mark 'B' in his statement.
8. Another set of witnesses are the police personnel,
present in the bivvi at Pezari Naka and the key witness is PW
3-PSI Kishorkumar Jadhav.
He depose that at around 3.30 p.m. on 25/01/1990, when
he was present at Pezari Naka alongwith other police party
members, one Maruti van crossed Pezari Naka and it is stated by
him that hotel Vasant Vihar was at a distance of about 100 to 150
feet towards Pen side from their tent and Maruti van was parked
in front of Vasant Vihar Hotel. One Nandkumar, Santosh and
other unknown person alighted from the Maruti van.
Nandkumar was having a hockey like stick, whereas accused
Santosh was holding wooden log and third unknown person was
having a sword. By shouting all the three went towards hotel
Vasant Vihar, where Yashwant Master was sitting on bench.
Thereafter, Naresh and Sanjay Dhumal also came out of the van
and followed the three persons. Noticing these persons,
Yashwant stood up and went inside the hotel.
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PW 3 further deposed that they witnessed this incident
from the tent and, thereafter, he alongwith other police staff,
which included PW 4- ASI Prabhakar Kulkarni, PW 5- Head
Constable Goma Bhoir and PW 7-PI Pralhad Sandanshiv, ran
towards the hotel and noticed that Yashwant Master ran away
towards school compound from the back side door of the hotel,
as the High School building is situated at the back side of the
hotel. He was chased by the accused persons, to be followed by
the police offcers. According to him, to the back side of that
building towards left side, there is one another building facing
south north and between these two buildings, there is passage
and Yashwant went towards that passage, whereas the police
team entered the building from the main entrance door
parallel to the main road and they were confronted with a
person having a sword and on noticing them, he threw the
sword in the passage towards left side, where they were
standing. The stainless steel sword was stained with blood and
as per this witness, the person was caught hold on the spot and
it is the case of the prosecution that this person is the present
Appellant, Jayawant.
As per PW 3, the Appellant was caught hold by him in
presence of P.I. Sandanshiv (PW 7). Accused Santosh and
Nandkumar also came there and other police staff attempted
to catch them, but they ran away towards the back side of the
building.
9. What is most relevant in the version of this witness is,
after he caught hold the present Appellant, he heard the cry of
Yashwant (PW 11) as, "Bhausaheb Marle". On hearing the
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alarming voice, they approached Yashwant alongwith
Jayawant and found that Yashwant Master was lying in the
passage with bleeding injuries on his both hands and forehead.
Therafter, the injured was taken to the hospital and the
present Appellant, who was apprehended and was taken to
Poynad police station by auto-rickshaw and he was handed
over to the P.S.O. PW 3 lodged a complaint in the police station
at 9.40 p.m. and it bears the signature of PSI Mhatre (PW 13),
who conducted the investigation in the subject C.R.
PW 3 has testifed that accused persons were known to
him because before this incident, Yashwant Master had fled
complaint against them during Lok Sabha election. He
identifed the sword, which was thrown by the Appellant in the
passage of school, which was produced as Article No.4 and he
also identifed him while in the dock.
10. His cross-examination is exhaustive and has to be
scrutinized minutely.
He has admitted that at the relevant time, when the
incident took place, the school was working. He admit that
only three persons came out of Maruti van and entered Vasant
Vihar Hotel and, thereafter, three persons came out and even
they entered the hotel. He give the following admission as far
as the present Appellant is concerned:-
"In my complaint I have mentioned two persons who entered
the Hotel, but name of third person has not been mentioned in
this complaint. Because that time that third man was not
known to me."
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He has further deposed that as per his complaint,
accused Naresh and Sanjay were not the persons, who entered
the hotel, following Yashwant Master and according to him,
Yashwant was chased by three persons, who were followed by
the police staff.
Now in the cross-examination, he state that some police
staff chased the assailants, who were chasing Yashwant
Master, but he alongwith PW 4 and PW 7 entered from the
main entrance door of the school and came in the corridor, in
front of the Head Master's offce. At that time, one man came
there with a sword and two other assailants followed him and
they all came in the corridor and ran away from the verandha,
indicated in the map. This spot, according to him, opens in the
open space located to the west side of the school building and
after catching hold of the present Appellant, he entered the
passage to notice Yashwant Master in the entrance door of the
Biology hall and he was called by Yashwant Master to inform
that he was assaulted, though he did not disclose the name of
the Appellant.
According to this witness, Yashwant was not in a
condition to speak and by leaving him in the care of PW 7, he
left the school building with the apprehended accused.
11. What is relevant to note is the version of this witness
that the school was in operation at that time and the teachers
and the students were also present, but he do not know,
whether any staff members or students were present in the
Biology hall, as he did not enter the Biology hall. This witness
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did not offer any explanation for not giving intimation of the
incident till 9.40 p.m., when immediately after the incident
and on the present Appellant was having been apprehended,
he went to the police station.
In the cross-examination, he categorically admit that he
had not investigated nor conducted any inquiry personally
about any complaint lodged by Yashwant Master and,
therefore, there was no occasion for him to know the present
Appellant and it is only because he had disclosed his name to
be Jayawant, he became aware of that.
12. Now, when I turn to the evidence of other police team
members, the contradictions are glaring and cannot be
ignored.
PW 4-Prabhakar Kulkarni, Assistant P.S.I., deputed at
Pezari Naka deposed that the van was parked in front of the
hotel at about 3.30 p.m. and he noticed that 4-5 persons came
out of the van and they were shouting and, hence, alongwith
the police team, including PW 3, he rushed towards the hotel,
but nobody was found there. He, however, deposed that he
cannot say to which side they ran away. But, he again state
that the accused went towards the back side of the building
and, thereafter the police staff also rushed behind them.
Now, here he states that one accused was found in
varhanda with sword in his hand and he was Jaywant. His
narration of the incident is as under :-
"One accused was found in the Varanda. He was having sword
in his hand. On enquiry, he disclosed his name as Jaywant.
Sword was found lying in that passage. We Police Offcer
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brought that accused on the road out of the school building.
P.S.I. Jadhav and Constable Bhoir took that accused to Police
Station."
His version in no way match with that of PW 3, who has
stated that he had entered from the main gate of the building
and found the present Appellant with sword in the passage.
13. Now turning to testimony of PW 5-Goma Bhoir, he gives
yet another version.
He depose that they noticed a Maruti van at 3.30 p.m..
According to him, 5-6 persons came out of the van and they
were having swords and sticks. They rushed in the hotel, to be
followed by the police staff and they chased them, as they ran
towards High School building.
Now, what PW 5 deposed is of great signifcance, as he
contradicts PW 3 and PW 4.
"When we were on the ground of th e school, one man come in
front of us, having a sword in his hand. He thrown away
sword in his hand on the ground. Black colour bush shirt and
white colour pant was on his person. P.S.I. Jadhav caught hold
that man. The man who was caught hold by us disclosed his
name as Jayawant Sawant. P.S.I. Jadahv took Jayawant to
Police Station."
The version of PW 4, is PSI Jadhav and Constable Bhoir
took him to the police station, but Bhoir himself do not
confrm to his statement that he accompanied PSI Jadhav to
the police station.
Another contradiction in the version is, PW 4 has
deposed that Maruti van was taken to the police station by PSI
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Jadhav and the slippers and chappals were found to be lying in
the verandha of the school building, whereas Constable Bhoir
(PW 5) state that one hockey stick was found in the Maruti
van and 5-6 chappals were found on the ground foor of the
school building. It is PW 5, who state that pool of blood was
lying in the passage of the school building.
14. Another witness from the police party is PW 7-P.I.
Pralhad Sandanshiv, who noticed a biscuit colour Maruti van
coming at Pezari Naka and which stopped at distance of 100 to
150 ft. from them and 5-6 persons alighted from the van, who
were holding sword and sticks like hockey stick. They entered
the hotel shouting and, therefore, even the police team entered
the hotel, came out of the back door of the hotel and also
entered the school building, when they noticed one person
with sword. Upon seeing them, he had dropped the sword from
his hand and he was caught hold by PSI Jadhav. He, for the
frst time, state that there were blood stains on his pant and he
directed PSI Jadhav to take the man to the police station.
What is relevant is, even PW 7 state that after the
present Appellant was apprehended, a call for help was given
by some person and they could hear the voice coming from t he
school building and, therefore, he went to that man, who was in
front of laboratory building, with bleeding injuries on his both
hands and head and he was informed to be Yashwant Master.
As per PW 7, PSI Jadhav took accused in the police
station and Maruti van was also taken into custody.
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15. PW 7 was the senior most offcer amongst the police
persons present at Pezari Naka. In the cross-examination, he
admit that he had not examined Maruti van, after it was taken
to the police station.
According to him, when the police team came in the
compound of the school building from the back side door of the
hotel, they could not see the persons whom they followed and
none of them was found in the compound of the school. When
they entered the school building to track these persons, one
man came from front side and he was caught by PSI Jadhav
and was taken to the police station.
He state that alongwith the apprehended persons, he and
PSI Jadhav took round of the building and noticed that some
maramari had taken place in the building, but no inquiry was
made as to who assaulted whom and except the man caught
hold by them, no other persons whom they had chased was
found in that building.
16. In order to have the idea about the location of the spot, so
that the evidence of the three sets of witnesses is appreciated,
PW 6- Balaram Patil, Circle Offcer, Poynad prepared a map on
the information supplied by the police offcers and even he had
visited the spot of the offence, which was shown to him by the
police. The map is exhibited as Exh.68 and this map give a
clear idea of the spot of occurrence of the event.
The orange colour in the map describe the Biology lab,
where Yashwant was found in an injured condition and it also
indicate the spot, where the present Appellant was
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apprehended and also the place, where the sword was dropped
by him.
Perusal of the aforesaid exhibit would make the version
of PW 3, PW 4, PW 5 and PW 7 more relevant, as it offers an
opportunity to ascertain the veracity of the incident.
As per PW 3, he alongwith two police personnel i.e. PW 5
and PW 7 entered the school building from the main entrance,
which is parallel to the road and as soon as they entered, they
were confronted with the present Appellant, who later on gave
his name as Jaywant. This is the location, where he was
apprehended and the place where sword was found lying is at
the very entrance and after he was apprehended, the shouts
for help were heard from Yashwant and he was found lying in
an injured condition in the Biology lab, which is indicated with
pink colour.
From this set of four witnesses, it is clear that the
Appellant was apprehended frst and then the apprehending
team heard the shouts from the injured in Biology lab and
none of them has deposed that the Appellant had assaulted
Yashwant. There is also inconsistency in the version of PW 3
and PW 7, as PW 7 state that the police group did not notice
any of the person, who ran towards the school and according
to him, 3-4 persons ran away, but they could not be
apprehended and when they were coming out of the building
by taking Jaywant, some person gave a call, so he approached
the place from where the voice was heard, and it was in front
of laboratory building and PSI Jadhav told him that he is
Yashwant Master, who was lying in a bleeding condition.
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One thing is clear that none of these witnesses have seen
the present Appellant as an assailant.
17. Turning to PW 12-Supriya Jaywant Patil, who claims to be
present alongwith Rekha Yashwant Patil at Pezari Naka, she
noticed Yashwant Master running towards the compound of the
school, to be chased by Naresh Dhumal, Prakash Dhumal,
Parshuram Mhatre, Jaywant Sawant, Nandkumar Mhatre and
four-fve others and even she alongwith Rekha went towards the
school building. From the window of the laboratory hall, she had
seen Naresh Dhumal, Nandkumar Mhatre, Jaya Sawant and
Prakash Dhumal beating him. They started shouting and the
police arrived at the spot and hold Jaya Sawant with a sword in
his hand. In the cross-examination, when she was asked whether
there was any window to the laboratory, she state that she do not
remember so, but categorically state there were windows in the
eastern wall to the laboratory and she watched the incident from
the window.
PW 12 completely contradict the second set of witnesses,
who have categorically deposed that they caught the present
Appellant, as soon as they entered the building and no one has
seen he assaulting, whereas if PW 12 is to be believed, then he
was caught out of the Biology laboratory and this place is at a
distance from the place shown in the map from where the
Appellant was apprehended and he dropped the sword.
18. The version of these three sets of witnesses is thus
contradicting to each other and juxta posed against the
version of the injured, the case of the prosecution becomes
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more doubtful. PW 11- Yashwant has deposed that from the
van, 5-6 persons emerged and they approached him, by saying
that they would kill him. At that time, Nandkumar Mhatre
gave blow of iron rod on his back and the assailants followed
him, when he started running.
The blow by Nandkumar Mhatre, when the assailant
approached him do not fnd mention in the deposition of the
police party or PW 12.
Yashwant, the injured, has further stated that he was
surrounded in a passage of laboratory of the school and Kailas
raised a sword to give blow on his chest and when he avoided
that, he was hit on his left hand and even Prakash Dhumal
gave a blow, which landed on his right hand and right thigh.
For the Appellant, he state that the blow was given by him on
his left knee. Pertinent to note that Prakash Dhumal is
acquitted, on fnding being rendered that there is no evidence
to prove his complicity.
As per PW 11, Naresh gave blow on his head and others
also gave blows and he fell down and after some time, police
came there and at that time, Rekha and Supriya also came in
the school and they lifted him. As per PW 11, he became
unconscious and was shifted to the Alibag Hospital and only on
the next day, he regained his consciousness.
In the cross-examination, the injured categorically
deposed this when his statement was recorded by the police,
he has not disclosed that Accused Jaywant gave blow on his
knee joint and for the frst time, he has disclosed it before the
Court.
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19. PW 14- PSI Shankarrao Patil had recorded the statement
of Yashwant and he has deposed that Yashwant had told him
that attack on him was in the compound of the school building
and the said fact as recorded in his statement, which was
marked as portion 'A'. He state that Yashwant had not stated
that the assault happened in the passage in front of the
laboratory.
Various omissions in the statement of Yashwant are
proved through the said witness, who also categorically state
that Yashwant has not stated before him that Jaya Sawant and
Stivan were amongst the persons, who came on the spot by
Maruti van and a categorical omission of the present Appellant
and Stivan being his assailants is also proved through this
witness.
20. The Medical Offcer (PW 9), who examined the injured
and issued the injury certifcate, in cross-examination admit
that when the injured approached him, he was in a condition to
speak and he was in a fully conscious condition, in contrast to
the statement of Yashwant that when he was admitted in the
hospital, he was unconscious.
21. From the entire evidence, which has been led before the
Sessions Court, the involvement of the present Appellant as an
assailant, is not established by the prosecution. He being an
assailant, has come from the testimony of PW 11, which is
proved as an omission through PW 14, the Investigating
Offcer.
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There is also contradiction about the place of assault and
about he raising an alarm, after he was assaulted. In the
cross-examination, he has admitted that he never given the
name of the Appellant as an assailant in the statement
recorded by the police and apart from this, the distinct version
of the assault and the assailants as well as the place of assault
has made the case of the prosecution doubtful, as the role
attributed to the Appellant as an assailant, is not established
through any cogent evidence. Though his presence in the
school premises is established, as PW 3 has deposed that he
was apprehended as soon as the police team entered from the
gate of the school building, but his presence at the place of
assault, i.e. in the Biology laboratory is doubtful and, since, the
shriek which came from Yashwant was heard by the police
team after they had apprehended the present Appellant, which
make it evident that he was not the assailant, though he may
have been carrying a sword. Apart from this, the recovery of
the sword from the spot is also doubtful, as the panch on the
recovery did not support the case of the prosecution and in
fact, as per the Investigating Offcer, the sword is brought to
the police station by some persons, when accused Leeladhar
and Ashok were in custody and was seized by recording
panchnama.
22. The prosecution has thus failed to establish the charge
under Sections 307, 147, 148, 149 of the IPC and in absence of
the charge levelled against the present Appellant having been
established by the prosecution through cogent and reliable
evidence, the Appellant is entitled to beneft of doubt. The
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impugned judgment has failed to consider the lacunae in the
case of the prosecution and, hence, it cannot be sustained.
By quashing and setting aside the impugned judgment
dated 20/05/1997, passed in Sessions Case No.181 of 1990,
the Appellant is acquitted of the charges levelled against him.
Since he is on bail, his bail bond stands cancelled.
The Appeal is allowed in the aforesaid terms.
23. Before parting with the judgment, I would like to place on
record the words of appreciation for Advocate Veerdhawal
Deshmukh, who on being appointed, has effectively
represented the case of the Appellant. The Legal Services
Authority is directed to release the legal remuneration due
and payable to him within a period of six weeks from today.
( SMT. BHARATI DANGRE, J.)
M.M.Salgaonkar
