Dismissed

State of Maharashtra. v. Ramesh Narayan Pawar and Ors.

Bombay HC1 Apr 2005APEAL/1054/1988

Case brief

AI extract

What is this about?

The High Court dismissed the State's criminal appeal and revision against an acquittal in a case involving assault with weapons. The court held that the prosecution evidence was weak due to medical inconsistencies and lack of corroboration for the witnesses' false implications, granting the accused the benefit of doubt.

What did the court decide?

Criminal appeal and revision application dismissed; bail bonds cancelled.

State of Maharashtra. Vs Ramesh Narayan Pawar… — Murder and Culpable Homicide | Bombay HC (2005)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CRI. APPELLATE JURISDICTION

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 CRIMINAL APPEAL NO. 1054 OF 1988

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 The State of Maharashtra ... Appellant

¶5

V/s

¶6

 1. Ramesh Narayan Pawar
 R/at Vadgaon-Chenand,
 Tal. Khed, Dist. Pune.

¶7

 2. Pratap Madhavrao Snadbhor,
 R/at Shethana Bldg.,
 Deccan college Road,
 Yeravad, Pune - 6.

¶8

 3. Nilesh Vijaykumar Appadore,
 R/at 169, Deshmukh Nagar,
 Deccan College Road,
 Yeravada, Pune - 6.

¶9

 4. Karamjitsingh Mukhtiarsingh,
 At 177, Shethana Bldg.,
 Deccan College Road,
 Yeravada, Pune - 6.

¶10

 5. Laxman Dattatraya Gore,
 R/at Devachi Alandi,
 Tal. Khed, Dist. Pune.

¶11

 6. Milind Dnyaneshwar Joshi,
 R/at Devachi Alandi,

¶12

 Tal. Khed, Dist. Pune. ... Respondents
 (Ori.Accsed/Appellant
 Nos. 1 to 6).

¶13

 Shri B.H. Mehta, Addl. Public Prosecutor for the
 appellant State.

¶14

 Ms. Revati Dere for the Respondent Nos. 1 to 5.

¶15

 Shri A.B. Vagyani for the respondent No.6.

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ALONGWITH

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CRIMINAL REVISION APPLICATION NO. 430 OF 1988

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 Shri Popat Vadgaonkar ... Applicant
 V/s
 1. Ramesh Narayan Pawar
 R/at Vadgaon-Chenand,
 Tal. Khed, Dist. Pune.
 2. Pratap Madhavrao Snadbhor,
 R/at Shethana Bldg.,
 Deccan college Road,
 Yeravad, Pune - 6.
 3. Nilesh Vijaykumar Appadore,
 R/at 169, Deshmukh Nagar,
 Deccan College Road,
 Yeravada, Pune - 6.
 4. Karamjitsingh Mukhtiarsingh,
 At 177, Shethana Bldg.,
 Deccan College Road,
 Yeravada, Pune - 6.
 5. Laxman Dattatraya Gore,
 R/at Devachi Alandi,
 Tal. Khed, Dist. Pune.
 6. Milind Dnyaneshwar Joshi,
 R/at Devachi Alandi,
 Tal. Khed, Dist. Pune.

¶20

 7. The State of Maharashtra. ... Respondents
 Shri S.A. Ingawale for the applicant.
 Ms. Revati Dere for the respondent Nos. 1 to 5.
 Shri A.B. Vagyani for the respondent No.6.

¶21

 Shri B.H. Mehta, Addl. Public Prosecutor for the
 respondent No.7 State.

¶22

CORAM: R.M.S. KHANDEPARKAR &
 P. V. KAKADE, JJ.

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DATED: 1ST APRIL, 2005.

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ORAL JUDGMENT (Per Kakade, J.):

¶26

 1. This appeal is preferred by the State against the
 judgment and order dated 5.9.1988 passed by the Addl.
 Sessions Judge, Pune in Criminal Appeal No. 626 of 1987
 wherein the appeal preferred by the present appellants
 against the conviction and sentence passed against them
 by the Court of Assistant Sessions Judge was set aside
 and they were acquitted of all the charges levelled
 against them.

¶27

 Hence, the State has come in the present appeal against
 the impugned order of acquittal passed by the Addl.
 Sessions Judge. Also one of the witnesses in the
 Sessions trial who was a injured person has preferred
 the said revision, both against the accused persons and
 the State. Hence both the proceedings are being heard
 and disposed of together.

¶28

 2. The facts giving rise to the present case in
 brief are thus -

¶29

 Accused No.1 Ramesh Narayan Pawar is a son of the then

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 sitting M.L.A. who was elected from Khed constituency
 in Pune District. Accused Nos. 2 to 6 are his friends
 from village Alandi. Complainant Popat Vadgaonkar is
 also a petitioner in the revision application and deals
 in transport business at Alandi. He was residing
 jointly with his brothers namely Ramesh, Suresh,
 Chandrakant and Prakash. It is the prosecution case
 that there were some sort of disputes prior to the
 incident dated 29.8.1986. Two months prior to this
 incident quarrels ensued between complainant’s bvrother
 Chandrakant and accused No.1 at S.T. Stand. It is
 alleged that even before four days of this incident, the
 accused No.1 had threatened the complainant on phone
 repeatedly. However, no report of the incident was
 given to the police because the same disputes were
 patched up because of the assurance of good conduct was
 given by uncle of accused No.1.

¶32

 On 29.8.1986 at about 10 p.m. complainant and his
 brother Prakash were standing in Nagarpalika chowk,
 Alandi. The said chowk is just opposite to their
 business and residence premises. Office of Nagarpalika
 is also situated adjacent to the said chowk. It is
 alleged that, six persons arrived on two motor cycles on
 the spot. The said motor cycles were of the company

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 viz. Bullet and Indo Suzuki. The said motor cycles
 were parked near Nagarpalika office and near the shop of
 Waghmare respectively. Three persons each from two
 motor cycles came near the complainant and his brother

¶35

 Prakash. The three persons who came on Bullet
 motor-cycle were possessing weapons. It is the case of
 the prosecution that the persons who arrived on Bullet
 motor-cycle were accused Nos. 2, 3 and 4. Accused No.4
 possessed sword, accused No.2 possessed cycle chain and
 the third one possessed hockey stick. The other three

¶36

 persons who arrived on the spot by Indo-Suzuki
 motor-cycle were said to be accused Nos. 1, 5 & 6. As
 soon as both the motor-cycles simultaneously reached to
 the spot, the accused Nos. 1 to 6 came and accused No.1
 then pointed out both the complainant and his brother to

¶37

 his other friends i.e. accused Nos. 2 to 6 and
 directed them to see the complainant and his brother
 properly. Immediately, as soon as 5 other accused
 received such signal from accused No.1, accused Nos. 1,
 5 and 6 started abusing the complainant and his brother.
 Accused No.1 gave a kick blow to the complainant,
 accused No.3 gave a blow with hockey stick on the hands
 of the complainant. Simultaneously accused No. 4
 started beating with sword to the complainant’s brother
 Prakash. Complainant tried to snatch the said sword but

¶38

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 accused No.2 Sandbhor is said to have beaten with cycle
 chain to the complainant. At about the same time,
 accused No.4 beat with sword to complainant on his back.
 It is further alleged by the prosecution that the
 accused No.4 gave a severe blow with sword to the
 complainant’s brother Prakash on different portions of
 the body including forehead and hand. Accused No.4
 wanted to hit with sword to the complainant’s brother
 Prakash but the blow was resisted by his hand. Both,
 the complainant and his brother receive pleeding
 injuries. Their clothes were stained with blood. The
 complainant and his brother raised cry for help.
 Accused persons wanted to run away on their respective
 motor cycles but the complainant snatched the plug wire
 from the bullet motor cycle and, therefore, the
 assailants could not use it for running away from the
 spot. However, they ran away on foot. Rest of three
 accused persons used their Indo Suzuki motor-cycle for
 running away from the spot. Many persons assembled on
 the spot and tried help for the injured. The persons
 who assembled at the spot saw some of the assailants
 running away from the spot. The injured were
 immediately brought to the Sassoon Hospital at Pune in a
 car. Complainant and his brother were admitted there
 for treatment. Wireless message was flashed from Pune

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 to Chakan Police Station informing the incident. The

¶42

 information from Chakan police Station reached to the
 Sassoon Hospital at about midnight on 30.3.1986. The
 complaint was recorded and reduced in writing at about 4
 a.m. on 30.8.1986 in the Sassoon Hospital in Ward No.7
 where complainant Popat was admitted and his brother
 Prakash was unconscious. Police officer of the rank of

¶43

 Dy.S.P. Mr. Naik visited the Sassoon Hospital. He
 immediately went to the house of accused Nos. 2 and 3
 and arrested them. Thereafter he went to Alandi. The
 complaint was sent to Chakan Police Station for
 registration of the offence, where the offences were
 registered under Sections 307, 147, 148, 149, 324, 326
 and 504 read with 34 of the I.P.C. During the course of
 the investigation, rest of the accused persons were
 arrested. Statements of witnesses came to be recorded
 and spot panchnama was prepared, Bullet motor-cycle
 found on the spot was seized, medical certificates of
 the injured persons were collected. The hockey stick
 was seized from the house of one of the accused at the
 instance of information alleged to have been given him
 in presence of panchas. The blood stained clothes of
 the complainant and his brother were also seized and the
 seizure articles were sent to the chemical analyzer for
 examination whose report was received and is part of the

¶44

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 record. On completion of the investigation, chargesheet
 was submitted to the Magistrate on 21.11.1986.

¶46

 3. The learned Magistrate committed the case to the
 Court of Sessions at Pune. The case was tried by the
 Assistant Sessions Judge, Pune, who framed the charge
 against the accused persons for the impugned offences.
 The accused persons pleaded not guilty to the charges.
 The defence of the accused persons was that of total
 denial of any involvement in the said incident. The
 prosecution led its evidence at length before the
 Assistant Sessions Judge, Pune.

¶47

 On the basis of available evidence, the Asstt. Sessions
 Judge, Pune came to the conclusion that all the

¶48

 accused were guilty of the charges framed against them
 and accordingly passed the order of conviction and
 sentence against them.

¶49

 4. An appeal was preferred against the said judgment
 and order which came before the Sessions Judge, Pune.
 The learned Addl. Sessions Judge heard the appeal and
 came to the conclusion, for the reasons recorded in
 details, that the learned Trial Judge erred in holding
 that the accused persons were guilty of any offences

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 charged against them and consequently all the accused
 persons were acquitted by the learned Addl. Sessions
 Judge of all the charges levelled against them. Hence
 the present appeal is preferred by the State against the
 order of acquittal recorded by the Addl. Sessions
 Judge.

¶52

 5. The original complainant witness Shri Popat in the
 case, has also filed a separate revision application
 against the order of acquittal.

¶53

 6. We have heard the learned A.P.P. for the State as
 well as the learned advocate for the respondents at
 length with whose help we have also perused the entire
 evidence on record. We may note at this stage juncture
 that pending the hearing of this appeal, the injured
 witnesses involved in the case including the complainant
 and the accused respondents came before the Court with
 submission that they have compromised the matter and do
 not wish to prosecute the cause any further. In support
 of this version, they have filed the application
 alongwith affidavits of both the injured witnesses
 including the complainant. The application appears to
 be signed by both the injured witnesses as well as the
 respondents who appear to have settled the dispute out

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 of the Court. However, since the offence under Sec.
 307 of the I.P.C. is non-compoundable, there was no
 question of accepting the factum of compromise between
 the parties and hence we proceeded to hear the appeal on
 merits.

¶56

 7. At the outset, it may be noted that the defence of
 the accused persons is that of total denial of any
 involvement in the said incident and it is the defence
 version that they are implicated in the case falsely and
 merely on suspicion. On the other hand, the prosecution
 case is armed with evidence of two eye-witnesses as well
 as other witnesses who reached just after the incident
 and stated to have seen the accused persons running away
 from the scene of incident. Therefore, the evidence of
 the prosecution is divided into two parts, one regarding
 the ocular evidence and other regarding evidence
 pertaining to witnesses who have seen the accused
 persons running away in the night. It is not in dispute
 that no indentification parade was held by the
 investigating officer inspite of the fact that the
 incident took place during night time. On perusal of
 the judgment of the learned Additional Sessions Judge,
 it is apparent that alongwith other norms, he has
 heavily relied upon the fact that no identification of

¶57

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 accused persons was proved in order to bring home the
 guilt and there were some technical details in the sense
 that in case of some of the accused persons they were
 not given the opportunity to explain the allegations
 against them in the course of statement recorded under
 Sec. 313 of the Cr.P.C. and, therefore, they were
 deprived of such opportunity and, therefore, their cause
 is prejudiced.

¶59

 8. Turning to the ocular evidence on record, it is to
 be noted that the prosecution case is founded on the
 evidence of PW-5 Popat and PW-6 Prakash, brothers of
 each other. Perusal of the testimony of Popat reveals
 that he has tried to give one perfect picture of the
 incident and the role played by each accused person.
 Similarly, evidence of PW-6 Prakash corroborates the
 evidence of Popat on all material particulars as well as
 the injuries suffered by both the said witnesses. They
 have stated that they have identified accused Nos. 1, 5
 & 6 as well as accused No.2. Accused No.3 is described
 as a man being stout and black in complexion and accused
 No.4 was identified as a Sardarji. Witness Popat has
 stated that all the accused persons assaulted him with
 sword, cycle chain, hockey stick and kick blows.

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 However, critical perusal of his testimony vis-a-vis the
 circumstances revealed from the record, however, depict
 different picture. Though he stated to have been
 assaulted with sword, cycle chain, hockey stick and kick
 blows, the medical evidence shows that there was only
 one incise injury on his left scapular region vide
 Exh.47. Further more, it is quite unnatural that he has
 not disclosed to anybody about the accused persons
 involved in the incident prior to recording the
 complaint, not even to brother Chandrakant who was
 present on the spot for about 25 minutes till Ramesh
 brought the car. He has also did not reveal the names
 of the assailants after he knew them to the medical
 officer at Sassoon Hospital while history of the
 incident was recorded by the doctor and finally he did
 not refuse the names of the police personnel at Sassoon
 Hospital Police Chowky though he had opportunity to do
 so. Similar is the position with regard to the evidence
 of PW-6 Prakash who has testified to the effect that all
 the accused assaulted him with kick and fist blows.
 However, minute perusal of his evidence shows that the
 alleged earlier quarrel which had taken place was
 between Chandrakant and accused No.1 and, as such, there
 was no reason or motive to assault Popat as well as
 Prakash and he has admitted that there was no quarrel

¶62

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 between himself and accused No.1. His evidence is also

¶64

 conspicuously silent regarding assault, if any, made by
 accused Nos. 1, 5 and 6 by kick blows. It is also to
 be noted that his statement in the form of dying
 declaration was recorded at the hospital. It appears
 from the record that the learned Assistant Sessions
 Judge sought to rely upon the said statement as
 substantive piece of evidence, however, the learned
 Addl. Sessions Judge, in appeal, rightly discarded that
 evidence by the record, obviously because PW-6 had
 survived and, therefore, his so-called dying declaration
 recorded by the police assumes status of simple
 statement under Sec. 161 of the Cr.P.C. and could not
 be read in evidence. It is also to be noted that even

¶65

 though the evidence suggests presence of some
 independent witnesses in the vicinity after the quarrel
 ensued, the prosecution has not examined any independent
 witness to corroborate the testimony of either
 complainant Popat or witness Prakash, especially when
 there appears motive for Popat to falsely implicate the
 accused persons due to business rivalry between the
 family of accused No.1 and himself.

¶66

 9. The position, further aggravates against the
 prosecution if we consider the medical evidence on

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 record. PW-10 Dr. Shivram Waghmare has described
 injury of PW-5 vide Exh.47 as, "incised wound on the
 left scapular region" and has stated that it must have
 caused by hard and sharp object. So far as Prakash’s
 injury is concerned, vide Exh.49, those are - (i)
 incised wound on the left pariatal region; (ii) incised
 wound on forehead left side; (iii) incised wound on the
 left arm; and (iv) incised wound on right forearm, and
 are stated to have been caused by hard and sharp object.
 Now it is clear that witness Popat has given the history
 and the medical officer has stated that both the
 witnesses are examined by him. However, the medical
 officer did not find any other injury on the person of
 Popat nor Popat complains of any pain and, therefore, it
 belies the prosecution case of assault by the accused
 persons. We are aware of the legal position in this
 regard that when there is contradiction between medical
 evidence and ocular evidence, the ocular evidence is
 required to be accepted. However, in this particular
 case, the ocular evidence itself has become suspect for
 want of credibility as well as independent corroboration
 and, therefore, the discrepancy with regard to the
 medical evidence vis-a-vis the ocular version assumes
 more importance which renders the prosecution case weak.

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 10. The next set of witnesses is in respect of those
 who reached the scene of incident immediately after the
 assault and saw the culprits running away. PW-11
 Chandrakant, brother of complainant, PW-8 Sanjay,
 complainant’s nephew and PW-7 Kantilal, are the said
 witnesses. Perusal of their evidence is not sufficient
 to convince us regarding the identity of the accused
 persons, firstly, because it was night time and secondly
 because except a witness PW-7 Chordiya, all others are
 relatives of the complainant and witness Prakash. It is
 true fact that the witness is a close relative and
 consequently partisan witness cannot be a ground to
 reject his testimony, however, it is also imperative
 that foundation has to be led if a plea of false
 implication is made and in such cases the Court has to
 adopt a very careful approach and enlighten the evidence
 to find out whether it is cogent and credible. In the
 present case, the testimonies of both the injured
 including the complainant, who are brothers of each
 other, are found to be doubtful regarding the identity
 of the culprits and, therefore, further corroboration
 sought to be obtained from relative witnesses in order
 to show that they had seen the culprits while running
 away cannot be accepted as credible and, therefore, as a
 matter of abandoned precaution has to be discarded from

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 consideration.

¶73

 11. Therefore, we are of the considered view that the
 prosecution evidence on record is not sufficient to
 inspire confidence and, therefore, the respondent
 accused persons deserve benefit of doubt. We have
 perused the judgment and reasoning adopted and findings
 recorded by the Addl. Sessions Judge while recording
 the order of acquittal and we must note that we find no
 perversity in such reasonings adopted by him while
 coming to the conclusion. It is the cardinal
 principle of criminal jurisprudence that if the evidence
 on record is sufficient to show two distinct
 possibilities of happenings, one in favour of the
 accused and one against the accused, then the one which
 is in favour of the accused has to be adopted. This is
 what has been done by the learned Addl. Sessions Judge
 and, therefore, we find no reason to interfere in the
 said judgment and order passed by him.

¶74

 12. In the result, the appeal is hereby dismissed.
 Consequently, the criminal revision application also
 stands dismissed. The bail bonds of the respondents/
 accused, who are on bail, also stand cancelled.

¶75

¶76

 ( R.M.S. Khandeparkar, J. )

¶77

 ( P. V. Kakade, J. )

State of Maharashtra. v. Ramesh Narayan Pawar and Ors.

Case brief

What is this about?

What did the court decide?

State of Maharashtra. v. Ramesh Narayan Pawar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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