The State and the original complainant challenged acquittal on murder, unlawful assembly and related charges. The High Court held that the trial court's view was possible and not perverse, and dismissed both the appeal and the revision application.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cr-Apeal-591-95-w-Rev-235-95.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 591 OF 1995
The State of Maharashtra … Appellant (Orig.Complainant)
Versus
WITH CRIMINAL REVISION APPLICATION NO. 235 OF 1995
Shivaji Krishna Chavan Aged about 34 years, Occup:Agriculturist, R/o. Vatphali, Tal. Malshiras, … Petitioner Dist. Solapur (Original Complainant)
Versus
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| 2 | Cr-Apeal-591-95-w-Rev-235-95.doc | |
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| 3) | Tanaji Jagannath Bandalkar Aged about 30 years, Occup: Agriculturist, |
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| 4) | Bhagwan Babu Ghule Aged about 25 years, Occup: Agriculturist, |
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| 5) | Pandurang Durga Gaikwad Aged about 26 years, Occup: Agriculturist, |
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| 6) | Namdeo Dnyanoba Zurale Aged about 37 years, Occup: Agriculturist, |
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| 7) | Tukaram Dnyanoba Zurale Aged about 40 years, Occup: Agriculturist, |
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| 8) | Balu Dnyanoba Zurale Aged about 28 years, Occup: Agriculturist. |
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| 1 to 8 all are Resident of Village Vatphali, Tal: Malshiras, Dist: Solapur. |
...Respondents (Original Accused No. 1 to 8) |
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| 9) | The State of Maharashtra. |
Mr. J.P. Yagnik Asstt. Public Prosecutor for Appellant (in appeal). Mr. Sushil Inamdar i/b K.B. Sonwalkar for Applicant in (Revn.). Mr. Rajiv Patil Senior Advocate a/w Ramdas Hake Patil for Respondent Nos. 2, 3 and 4.
Mr. Sanjeev P. Kadam for Respondent Nos. 5 to 8.
Mr. Vishwajit P. Sawant alongwith Prabhakar Jadhav for Respondent Nos. 1 to 8 in Revision.
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CORAM : S. C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.
RESERVED ON : 23rd MARCH, 2018 PRONOUNCED ON : 18 APRIL, 2018
JUDGMENT [ Per : PRAKASH D. NAIK, J.]:
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(a) The complainant Shivaji Krishna Chavan is a resident of village Vatphali, Tq. Malshiras. He was residing at his vasti (farm house) at village Vatphali. His brothers Hiralal Chavan and Tanaji Chavan (deceased) were also residing in the said village along with their family members.
(b) The complainant sells milk to dairy. The accused Namdeo Zurale (accused No.6) was the Chairman of Dharmavir Milk Dairy. Accused No.6 and others had assaulted the complainant earlier and caused hurt to him since he did not sell milk to Dharmvir Dairy. Since then the relations between the accused and the complainant were strained. The accused were also suspecting that Tanaji Chavan was giving information to the police against them.
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(c) On 14/07/1994 the accused had formed an unlawful assembly, they were armed with weapons like swords, axes and stick. Tanaji Chavan was supposed to take his nephew Bapu Hiralal Chavan to Akluj for treatment. Tanaji had asked Bapu to wait at the road and he proceeded to bring his motor-bike which was parked near the poultry farm of Namdeo Wagh.
(d) The accused were armed with deadly weapons and in prosecution of common object of their unlawful assembly assaulted Tanaji by inflicting blows of weapons on him. Tanaji had raised cries to save him. On hearing the same, the complainant reached the spot. The accused threatened him not to come forward. The brother of the complainant Hiralal followed him to the spot. The accused then left the spot along with weapons. Tanaji Chavan died at the spot.
(e) The police conducted investigation and filed chargesheet against the respondents accused.
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Before adverting to the merits of the case in hand, the broad principles which may be taken into consideration by the appellate Court while dealing with the appeal against acquittal can be analysed. In several decisions of the Hon'ble Supreme Court, the law relating to exercise of the powers under Section 378 of the Code of Criminal Procedure has been summarised. The judgment of acquittal has the obvious consequence of granting freedom to the accused. The consistent view of the Court is that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the Court of competent jurisdiction, keeping in view the settled canons of criminal jurisprudence, the appellate Court shall be reluctant to interfere with such judgment of acquittal. It is also held in several decisions that the penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. Wherever there is perversity on facts and/or law appearing in the
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judgment, the appellate Court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. There is no absolute restriction in law to review and relook the entire evidence, on which the order of acquittal is founded. If, upon scrutiny, the appellate Court finds that the decision of lower Court is based on erroneous view and against the settled position of law, than the said order of acquittal should be set aside. We have to examine whether the impugned judgment of acquittal suffers from such infirmity.
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is contradictory. The Trial Court has taken into consideration several factors for disbelieving the prosecution case.
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accused persons. On 14/07/1994 he along with Tanaji (deceased) and Bapu (PW No.5) were going to fetch water from hand pump. Tanaji told him that he is going to Akluj as Bapu has to be injected. Tanaji then went towards Malshiras to Akluj road for going to Akluj. He was accompanied by Bapu. He was at the water hand pump and heard the voice of Tanaji shouting “Aai Melo Melo”. He, then rushed towards the road. Accused No.1, accused No.6, accused No.3, accused No.2, accused No.4 and accused No.5 were standing to the South of the road at a distance of 10 to 15 feet. Accused No.1 and accused No.6 were inflicting blows of swords to Tanaji. They had encircled around him. Accused Bhagwan and Pandurang were inflicting axe blows to Tanaji. Accused Tanaji Bandalkar had inflicted stick blows to Tanaji. Tanaji was lying on the ground and was facing upwards. He was at the distance of 50 feet from the spot. Bapu was also at the distance of 50 feet from the spot. The accused threatened him and told not to come forward. Due to threat he did not move. After assaulting the deceased, the accused went towards Zurale vasti. Hiralal (PW No.6) also came to the spot. Tanaji told him that he was assaulted by the accused as he was giving information to the
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police against them. Tanaji's left leg was separated and right leg was also cut. There were blows on his right thigh. There were injuries over the left and right wrists of Tanaji. PW No.4 lodged the First Information Report. In the cross examination, he has deposed that the spot is situated on the left side of the road of Akluj to Malshiras. The houses of some of the persons are situated on the right of the said road at a distance of 200 to 300 feet. The house of one Bhivaji Kharat is also situated near the spot. He also referred to the houses of some other persons situated near the place of incident. He also deposed that there are two groups at village Vatphali and one group is led by accused No.6 and other is led by Advocate Ghule. The accused belonging to the group of accused No.6. Advocate Ghule resides at village Vatphali. He also stated that a case is filed against him by his neighbour wherein he was impleaded as accused. One Narayan, Yellappa and Maruti Nandiwale were the complainant. Nandiwale had also filed a complaint against Tanaji (deceased). Nandiwales are dangerous people. He and his nephew were present at the spot where the incident took place and his brother Hira had followed them. They did not call Police Patil or Sarpanch of village Vatphali. He denied
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the suggestion that Nandiwales were also threatening to kill his brother and that on the night of 13th July his brother had gone out on his usual night errands.
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used to tend buffaloes daily till 5.00 p.m. He was not well on the date of incident. He had stated before the police that he and his uncle have taken meals and then started from their house. However, he could not assign any reason as to why the said version is not appearing in his statement. The deceased was lying in supine condition. The accused persons encircled him and inflictied blows. The persons from the adjoining houses did not come out to watch the incident. He did not go to the persons from adjoining houses to inform them about the incident nor he went to milk dairy for informing the people about the incident. He did not run towards vasti when his uncle was attacked. The persons from adjoining vasti did not assemble at the spot. He stated before police that accused Nos. 1 to 6 came from the side of poultry farm. He informed the police that the deceased had stated that the accused had assaulted him because he was giving information to police and that the accused fell the deceased on the ground but the said facts are not appearing in his statement recorded by the police. He also stated that PW No.7 had come to the spot and that a jeep had come from Malshiras and his father and uncle had gone in that jeep, but the same version is not appearing in his statement
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recorded by police. PW No.6 is the brother of deceased. He heard Tanaji's voice and rushed to the spot. He was at a distance of 50 feet from the spot. Tanaji was lying towards the poultry. Accused were inflicting blows of swords and axes to Tanaji. The accused threatened the witnesses not to come forward at the time of assault. They approached Tanaji after the accused left the scene of offence. The injured was taken to the hospital. He further deposed that the families of washerman are residing at their vasti along with their children. The vasti is at the distance of 50 feet from the hand pump. The distance between the poultry farm and the hand pump is about 200 to 250 feet. One of the person from Washerman's family had followed him to the spot. The incident lasted for about 5 minutes. He and his brother did not intervene and separate the accused persons. They did not go to the dairy farm to inform the people as no one was there. He did not go to the Police-Patil or the Sarpanch. PW No.7 is purportedly the witness who had seen the accused around with weapons. He stated that he along with Chandrakant Jagtap were going to Malshiras to meet his advocate. They had reached the dairy at village Vatphali, he noticed that accused Nos. 1 to 6 were going
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towards East. They were holding weapons in their hands. He then noticed that Tanaji was assaulted and was in injured condition. He, then proceeded to meet his advocate. He also deposed that his son is a friend of the deceased. On the relevant day, there was no date in the matter which is pending in the Court. He did not take injured to the hospital and did not inform the police about the incident. His statement was recorded on 23/08/1994.
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of the deceased, such as fracture on the right radius etc. He also deposed that the stomach of the deceased was containing semi digested food of 400 cc. The food was consumed by the deceased three hours prior to his death. He also deposed that the injuries could be caused by the weapons allegedly used in the crime. Injury caused by hard and blunt object would cause contusion. Injury by hard sharp object would cause incised wound. A pointed rough stone can cause contused lacerated wound. The postmortem report was exhibited in evidence at his instance. PW No.9 Suresh Patil was serving at Akluj Police station at the relevant time. He referred to the recovery of clothes of the deceased. PW No.10 Rajendra Savant was serving at Akluj Police station as Police Constable. He was directed to take muddemal property to Chemical Analyser at Pune. He received the same and deposited in the office of Chemical Analyser on 29/09/1994. PW No.11 Madhukar Bhosale acted as panch for various panchnamas. He did not read the panchnama and could not depose about its contents. He was called for panchnama on 15/07/1994, 16/07/1994, 09/09/1994 and 10/09/1994. He was declared hostile by the prosecution and was cross-examined by learned APP. He acted as
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panch for recovery of clothes and the weapons. He stated that on 07/07/1994 the people from complainant's group had taken him to the police station and had asked him to file complaint. He had lodged the complaint as he was pressurised by the complainant's group. PW No.12 Ratan Kambale acted as panch. He stated that police have obtained his signature on a plain paper. He was declared hostile by the prosecution. PW No.13 Dr. Gautam Jagtap was working as a Medical Superintendent at Rural Hospital, Akluj. He had examined the accused persons and collected their blood samples and handed over the same to the concerned constable with a letter addressed to Chemical Analyser. He obtained the report from Chemical Analyser. The blood group of Tanaji Bandalkar (accused No.3) is 'A' and the blood group of other accused could not be determined. He placed on record the Chemical Analyser report vide Exhibit Nos. 54 and 56. PW No.14 Rahimbaksha Shaikh was serving at Akluj Police station. He handed over muddemal articles to A.P.I. Jadhav on 19/07/1994. PW No.15 Shahuraj Dalvi was serving at Akluj Police station on 11/07/1994. He referred to the order of District Magistrate, Solapur, which was promulgated under Section 37(A). PW No.16
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Vithal Jadhav was attached to Akluj Police station. He stated that PW No.5 had approached him and informed that six persons had murdered his brother. He, then registered the offence and proceeded to the spot. The First Information Report is signed by the complainant. The offences were registered. He had drawn the inquest panchnama. He had investigated the crime. He arrested the accused. He recorded the statement of the witnesses. The omissions which were brought on record through the cross examination of the witnesses were proved through him. He did not record the statement of any family members. Nothing was found in the search of the house of Mahadeo Zurale. He produced the accused before the Court on 16/07/1994 for obtaining their remand. It is mentioned in the remand papers that Bapu Chavan had gone to Vatphali to bring clothes. The theory that Bapu Chavan was going to Vatphali for bringing clothes finds place in the remand papers dated 16/07/1994, 18/07/1994, 21/07/1994, 23/07/1994 and 29/07/1994. It is nowhere mentioned in the remand papers that Bapu was indisposed and therefore, Bapu and Tanaji were going to Akluj. PW No.17 Dr. Rajesh Gotekar was serving at Medical Officer at Rural Hospital, Akluj. He obtained
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the blood sample of the accused No.6 and handed over the same for Chemical Analysis. PW No.18 Gopalkrishna Bhalerao was serving at Akluj Police station. He conducted investigation. He obtained blood sample of the accused. He had recorded the statement of Changdeo Gaikwad (PW No.7). He also recorded the statement of other witnesses.
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these witnesses were examined at the instance of accused Namdeo Zurale to establish a libi .
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corroborative evidence against the accused in the form of Chemical Analyser report to establish their involvement in the crime.
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recovery of deadly weapons having blood stains at the instance of the accused which were used while committing the crime. The motive for committing crime was also established. The accused were armed with deadly weapons and have mercilessly assaulted the deceased by inflicting blows by the weapons. The victim had sustained several serious injuries on his person as a result of the assault by the accused. The Trial Court has ignored the evidence for no reason. The witnesses through their evidence had established the presence of the accused at the scene of offence and participation in crime. The evidence putforth by the witnesses could not be demolished in any manner by the defence in their cross examination. The evidence of the witnesses, more particularly the eye witnesses to the incident inspires confidence and the same ought to have been accepted by the Trial Court. Although, the eye witnesses were related to deceased, their evidence cannot be discarded on the ground that they are partisan witnesses, more particularly, when they have given ocular account of the crime and involvement of the accused in the said crime. All the witnesses have attributed specific overt act to the accused. Their presence at the scene of offence cannot be doubted. It is
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submitted that this Court should reappreciate the evidence which establishes the involvement of the accused in the said crime. In the event, this Court finds that the Trial Court has overlooked the cogent evidence on record on flimsy ground, the appellate Court can certainly set aside the judgment of acquittal. The accused were involved in heinous crime and their involvement was proved by the prosecution and hence they ought to have been convicted by the Trial Court. The appellate Court is empowered to review the evidence upon which an order of acquittal is based. If there is mis-carriage of justice, this Court can certainly set aside the order of acquittal. In the present case, according to Shri. Yagnik, the Trial Court has ignored the admissible evidence.
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there is no reason to interfere in the order of acquittal. It is further submitted that statement of PW No.7 was recorded belatedly which creates doubt about its genuineness. The prosecution did not examine independent witnesses. There is every possibility that the deceased was done to death by some other persons and that the accused are falsely implicated in the crime. There is absolutely no evidence of whatsoever nature against the accused Nos. 7 and 8.
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are houses of villagers near the scene of offence, the prosecution could not putforth any independent witness to corroborate the version of the eye witnesses. Only alleged independent witness who was examined by the prosecution witness PW No.7 who has not seen the actual incident, but had seen according to him the accused armed with weapons proceeding towards the place of incident.
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the sharp weapon and the use of sharp weapon would in result incised wounds. The trial Court has taken into consideration several such infirmities and has thereby given benefit of doubt to the accused.
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whether PW No.6 was present when the incident of assault on deceased was in progress. He referred to presence of PW No.7 after the assault which is contrary to evidence of PW No.4. The deposition that deceased had stated that he was assaulted for giving information to police is not reflected in his statement before police. PW No.6 has not referred to presence of PW No.7. He did not refer to any statement being made by deceased at the time of assault. Thus, the instant motive to assault has not been established by prosecution. He has referred to washermen following him at the spot. The other witnesses has not referred to such person being present at the place of incident. Although he claims to be eye witness. The evidence of PW No.4 and PW No.5 does not establish that he was eye witness to assault. He is the father of PW No.5, but he did not state that PW No.5 was not keeping well and he proceeded with deceased to Akluj. He did not raise cries. He did not intervene and separate accused. He and other witnesses did not go to dairy to inform the people. He did not go to Police Patil or Sarpanch. There are several houses near the spot of incident, but prosecution has not brought any independent eye witness to the alleged incident occurred at
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around 8.00 a.m. PW No.7 is got up witness. His presence is not referred by PW No.4 and PW No.6. His statement was recorded belatedly. Thus, there is no consistency in the version of the prosecution witnesses and their evidence raises enough doubt.
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attack occurring at the time alleged is therefore concocted by the witness.
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forwarded to the nearest Magistrate on 18/07/1994. The delay in sending the FIR is not explained which creates suspicion about the prosecution case. The prosecution story is not free from suspicion and the evidence of witnesses is not consistent with each other and the same is not corroborated by medical officer. The prosecution has failed in establishing the guilt of the accused beyond reasonable doubt.
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his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witness and hearing their evidence can be reversed only for very substantial and compelling reasons.
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a different view, interference with the judgment of acquittal is not justified if the view taken by the trial Court is a possible view.
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O R D E R
Criminal Appeal No. 591 of 1995 and Criminal Revision Application No. 235 of 1995 are dismissed.
( PRAKASH D. NAIK, J.)
( S. C. DHARMADHIKARI, J.)
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1 issue framed by the court
Whether the acquittal suffered from perversity, legal infirmity or erroneous appreciation of evidence warranting interference?
Colour shows how this judgement treated each authority
Sheo Swarup Vs. King EmperorApplied¶192
AIR 1934 PC 227 · Who else cites this
Surajpal Singh Vs. StateApplied¶193
Surajpal Singh Vs. State, AIR 1952 SC 52 · Who else cites this
State of Rajasthan Vs. Shera Ram @ Vishnu DuttaApplied¶203
2012 (1) SCC 602 · Who else cites this
4 provisions across 3 enactments
The State of Maharashtra
Shivaji Krishna Chavan
Mahadeo Dnyanoba Zurale
Hanmant Ramchandra Sontakke
Tanaji Jagannath Bandelkar
Bhagwan Babu Ghule
S. C. DHARMADHIKARI
PRAKASH D. NAIK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
