2010 ALL MR (Cri) 2039
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.H. MARLAPALLE AND A.A. SAYED, JJ.
Kerappa Narayan Bhuse & Ors.Vs.State Of Maharashtra
Criminal Appeal No.154 of 1992
7th June, 2010
Petitioner Counsel: Mr. A. P. MUNDARGI,Mr. NIRANJAN MUNDARGI ,Mr. JAYDEEP MANE
Respondent Counsel: Mr. J. P. YAGNIK
(A) Penal Code (1860), S.302 - Evidence Act (1872), S.3 - Appreciation of evidence - Murder case - Finding as to power supply - Challenge to - When the witness specifically stated that the power connection was discontinued in both the houses and he submitted the record in support of the statements, held, the trial Court could not have recorded the finding merely on the basis of electricity bills that the power supply was available. (Para 19)
(B) Evidence Act (1872), S.3 - Penal Code (1860), S.302 - Murder case - Benefit of doubt - Trial Court failing to consider evidence of prosecution in its right perspective and instead in a mechanical manner it accepted the prosecution story implicating the accused - Prosecution contradicting its own case and made it highly doubtful and unreliable - In such circumstances, held, benefit of doubt must go to the accused. (Para 20)
B. H. MARLAPALLE, J.:- In Sessions Case No.47 of 1991 in all 42 accused faced trial for the offences punishable under Sections 147, 148, 149 of IPC and Sections 302, 307, 337 and 323 each read with Section 149 of IPC. The learned II Additional Sessions Judge at Solapur by his judgment and order dated 6/3/1992 was pleased to convict accused nos.1, 2, 4, 6 and 7 for the offences punishable under Sections 147 and 148 of IPC and Sections 302, 323, 427 and 452 each read with Section 149 of IPC and hence this appeal by the said five accused. During the pendency of this appeal one of the appellants i.e. Shri. Sanjay Vishnu Bhuse (accused no.2) died on 3/3/2000 and, therefore, the appeal stands abated qua the said accused and it survives for accused nos.1, 4, 6 and 7.
1-A. Shri. Trimbak Shinde, a resident of Aundi, Taluka Mohol, Dist.-Solapur, an influential political leader at the Taluka and District level had five sons i.e. Nashikrao, Dattatraya, Apparao, Ashok and Anil. Apparao is an Advocate practicing at Solapur and remaining four sons were at the village. Ashok was the Police Patil. For more than 15 years the members of the Village Panchayat used to be elected unopposed and mostly as per the choice of Shri. Trimbak Shinde or his sons and Shri. Trimbak Shinde was elected to the Panchayat Samiti of the Zilla Parishad. However, in the year 1989 his writ did not work and, therefore, the elections were held in the month of September, obviously with two different panels, one headed by Shri. Apparao Shinde and the other one of Shri. Kerappa Narayan Bhuse (accused no.1), for all the 11 seats and the panel of Apparao got the majority of six seats whereas the panel of accused no.1 had to be happy only with five seats. Consequently, Apparao came to be elected as the Sarpanch with Harishchandra Maruti Kashid - PW 14 as the Deputy Sarpanch. The prosecution alleged that accused no.1 and his party as well as the associates, forcibly obtained the resignation from PW 14 Kashid from the post of Deputy Sarpanch as well as member of the Village Panchayat and the five members of the panel of accused no.1 also submitted their resignations. All the six resignations were sent by post to the Sarpanch on 14/5/1990. Thereafter PW 14 addressed a separate letter to the Sarpanch stating that he had not resigned and he was forced to resign and, therefore, the resignation letter received from him should not be treated as resignation. Shri. Apparao Shinde, the Sarpanch accepted this request and in the meeting held on 31/7/1990 none of the remaining five members who had submitted their resignations were present and the resignations came to be accepted. Thus there was a rivalry between the two groups one led by Shri. Apparao Shinde and the other one led by accused no.1.
As per the prosecution case on 21/8/1990 at about 9 p.m. accused nos.1 to 31 along with other ten persons armed with weapons like wooden sticks, swords/axes and iron bars had gone to the wada (village bungalow) of Shri. Trimbak Shinde. Trimbak Shinde and his son Apparao were residing at Solapur whereas the remaining brothers except Dattatraya were staying in the wada along with their families and Dattatraya was staying with his father-in-law whose house was just about 2-3 houses beyond the wada in the same village. Accused no.1 shouted in the name of Nashikrao and questioned whether he had asked PW 14 to withdraw his resignation and on that count he started abusing. The other accused persons who had come with accused no.1 also started doing the same. PW 3 - Ashok Shinde asked them not to abuse and go back to their respective homes and at this time stone pelting started and, therefore, Ashok Shinde closed the main door of the house from inside. Stone pelting continued on the windows and within a short time, from the adjacent house staircase accused nos.1 to 11 entered into the room occupied by Nashikrao on the first floor/terrace. Accused no.9 was holding an iron bar. Accused no.1, accused no.2 and accused no.3 were armed with swords. Accused no.1 started assaulting Nashikrao with sword and they ran away after Nashikrao came down through the staircase. Shri. Janardhan Gore PW-13 also received injuries while he was trying to intervene in the assault and he was sitting with Nashikrao at the relevant time. Nashikrao collapsed and died and Janardhan Gore's son Anil came to the wada and took him away on his motorbike and admitted him in the hospital at Solapur. Ashok Shinde left the wada at 1 a.m. and reached the police station at Mohol and lodged his complaint at about 7 a.m. on 22/8/1990. PSI Prakash Ghadge - PW 18 reached the spot, drew the inquest panchanama (Exhibit 50) and spot panchanama (Exhibit 51). He also recorded the statements of Janardhan Gore - PW 13, Harishchandra Kashid - PW 14 and Vithal Kamble. The dead body of Nashikrao was sent for post-mortem to the Civil Hospital at Mohol and Dr. Anil Mehatrao - PW 11 conducted the post-mortem and signed the P.M. report at Exhibit 70. PW 13 - Janardhan Gores statement was also recorded while in the hospital at Solapur and he was under treatment in the hospital till 24/8/1990. Some of the witnesses were sent for medical examination. The weapons were recovered and the clothes on their person were seized and all these articles along with the blood mixed mud collected from the spot of incident were also sent for chemical analysis. On 24/8/1990 six accused were arrested. The investigation was then taken over by PW 27 - Chandrakant Dange on 1/9/1990 and he had arrested accused nos.9 to 14 on 2/9/1990. On 6/9/1990 he had arrested accused nos.5 to 10, accused nos.22 and 23. He arrested accused nos.24 to 30 on 11/9/1990 as well as accused nos.11, 31 to 36 were arrested by PSI Gaikwad on 12/9/1990. On 29/9/1990 nominal arrest of accused nos.37 to 42 was made and on 25th September, 1990 motor-cycles of accused nos.1 and 2 were seized. The arrested accused who had suffered injuries were sent for medical examination. On completion of investigation the charge-sheet came to be submitted in the Court of Judicial Magistrate, First Class, Mohol on 29/11/1990. The map of scene of offence was drawn at Exhibit 61 and on 4/12/1990 the CA reports were received in respect of the muddemal articles and blood samples and on 4/1/1991 CA reports of blood samples of injured were received. As the case being exclusively triable by the Sessions Court it was committed to the Sessions Court and charge was framed on 27/9/1991. During the trial accused nos.2, 4 and 6 were released on bail on 31/5/1991 but accused nos.1 and 7 were denied bail and on admission of this appeal all the five appellants came to be released on bail on 8/4/1992.
2. The prosecution examined in all 27 witnesses and the defence examined three witnesses so as to establish that on the date of the incident the house of the complainant did not have power supply (DW 2), PW 13 - Janardhan Gore had visited accused no.1 in the jail on 17/8/1991 and had told him that the accused were framed in a false case at the behest of Shri. Apparao Shinde - Advocate and through the evidence of DW 3 station diary entries of the Control Room at Solapur recorded on 21/8/1990 were placed on record. The evidence of the prosecution, as recorded by the trial court, is under six different categories, namely, (a) motive, (b) medical opinion, (c) eye-witnesses, (d) recovery of weapons, (e) availability of light in the Wada and (f) seizure of incriminating articles.
To prove the motive of political rivalry on account of the withdrawal of resignation letter by PW 14 - Harishchandra Kashid, the prosecution relied upon the evidence of PW 12 - Shriling Ukhale and PW 26 - Nagnath Zarkar, both Gramsevaks as well as PW 14 - Harishchandra Kashid. For medical opinion, two doctors came to be examined i.e. PW 10 - Dr. Sharadkumar Patil, so as to prove the injuries on PW 13 - Janardhan Gore and PW 11 - Dr. Anil Mehatrao to prove the PM notes at Exh.70 along with the advance medical certificate of deceased Nashikrao Shinde at Exh.71 as well as the medical certificates issued for injured witnesses i.e. Bharat Chavan, Ramrao Shinde (PW 6), Dattatraya Shide and Jagnath Bhuse (PW 4). So far as ocular evidence is concerned, the prosecution has relied upon the depositions of PW 3 - Ashok Shinde, complainant, PW 6 Ramrao Shinde, PW 4 - Jagnath Bhuse, PW 13 - Janardhan Gore and PW 15 - Tukaram Shinde. To prove that the Wada where the incident had taken place had electric power supply at the time of the incident, the prosecution examined PW 1 - Nivrutti Kamble, PW 16 - Vithal Kamble, PW 17 - Patalu Gaikwad and PW 5 - Uttam Patil. So far as the recovery of weapons is concerned, PW 7 - Murlidhar Kshirsagar, PW 8 - Ramesh Shinde and PW 9 - Nagnath Bansode were examined as panch witnesses and they had turned hostile. The recovery of weapons and the clothes of accused nos.1 to 4 became doubtful. Even otherwise, as per the C.A. report, the blood group of the deceased Nashikrao detected to be "O" and on the recovered weapons and more particularly the sword, blood of group "O" was not detected and, therefore, this recovery of weapons became inconsequential. The seizure of two motorbikes bearing registration nos.MVP 8427 and MVP 8426 at a place near the house of Sopan Tukaram Doke in terms of panchanama at Exh.117 dated 1/1/1990 was also found to be inconsequential by the trial court to hold that these vehicles belonged to accused no.1 and accused no.2. It was the case of the prosecution that immediately after the incident accused nos.1 and 2 had fled on these motor-bikes.
(a) the assault on the deceased Nashikrao as well as PW 13 - Janardhan Gore had taken place in the house of the complainant between 8.30 p.m. and 9 p.m. on 21/8/1990;
(b) deceased Nashikrao was assaulted so as to take revenge for his role in requesting PW 14 - Kashid, Deputy Sarpanch to withdraw his resignation and Nashikrao was assaulted with swords and other sharp weapons as well as iron bars and wooden sticks by the accused;
(c) while PW 13 - Janardan Gore was in the company of the deceased Nashikrao, during the incident, tried to intervene and save Nashikrao from the assault, he himself became a victim and the accused assaulted him with an intention to kill him.
4. PW 11 - Dr. Anil Mehatrao was the Medical Officer attached to Mohol Rural Hospital from January, 1990 to 6th January, 1991 and he stated before the trial court that on 22/8/1990 the dead body of Nashikrao Trimbak Shinde was referred to him for post-mortem by the Mohol Police Station and he conducted the autopsy on the said dead body between 3 to 4 p.m. on the very same day. On examination he noticed the following external injuries on the dead body of Nashikrao :
1. Incised out wound at right side of the forehead, dimensions 5 c.m. x 2 c.m. x 1 c.m. bone exposed, transverse wound.
2. Incised cut would at right frontoparietal region of the skull, dimensions 6 c.m. x 2 c.m. x 1 c.m. bone exposed transverse wound.
3. Incised cut wound at right scapular region vertical, dimensions 5 c.m. x 2 c.m. x 2 c.m..
4. Incised cut wound at posterior region of right shoulder posterior wall of right exilla completely damaged, muscle torn, dimensions 15 c.m. long x 6 c.m. broad x 4 c.m. deep.
5. Contusion at back, vertical and horizontal, quadrangle, dimensions length 34 c.m., breadth 31 c.m. thickness 1 c.m...
6. Abrasion left shoulder 2 c.m. x 1 c.m. x ½ c.m.. Superficial.
He also noticed the following internal injuries :
1. Injuries under the scalp; haemotoma under left parietal region.
2. Skull :- Depressed fracture of frontal bone at right side below first wound, size 1 c.m. x 1 c.m..
3. Brain :- Subdural haemotoma seen over right parietal region.
As per him all the external injuries were ante-mortem and they were sufficient in the ordinary course of nature to cause death. Injury Nos.1 and 2 were individually sufficient to cause death in ordinary course of nature as they were on vital parts of the body and the age of injury was within approximately 18 to 24 hours. Injury Nos.1 to 4 could have been caused by sharp cutting weapon like Article 26 - sword. Whereas Injury No.5 was possible by hard and blunt object like iron bar Article 42 and Injury No.6 was possible by hard and blunt object like stick - Article 29. In his opinion the cause of death was head injury and haemorrhaegic shock. He confirmed the PM report at Exh.70 and the medical certificate at Exh.71. In his cross-examination he stated that the deceased must not have taken food prior to the incident and about 4 to 6 hours were required for digestion. The bladder was empty. He denied the suggestions that Nashikrao did not receive injuries by sword, stick and iron bar.
It is thus clear from the above medical evidence that Nashikrao died a homicidal death on account of the injuries caused on his head which resulted into fracture of skull. He died instantaneously and the death was within 18 to 24 hours prior to the time of the atopsy.
5. PW 10 - Dr. Sharadkumar Patil was the Chief Medical Officer, Civil Hospital at Solapur for about three years and on 21/8/1990 he was on duty between 9 p.m. to 7 a.m.. He stated before the trial court that at about 00.45 hours on 22/8/1990 PW 13 - Janardan Gore was brought by his son to the Civil Hospital and he examined him. He noticed the following injuries on his person :
1. C.L.W. 3 c.m. X 1 c.m. Muscle deep, right parietal region, hard and blunt object, within 24 hours. Simple injury.
2. C.L.W. 2 c.m. X 1 c.m. muscle deep, left parietal region, hard and blunt object, within 24 hours. Simple injury.
3. C.L.W. 4 c.m. x 1 c.m. muscle deep, occipital region, hard and blunt object, within 24 hours, within 24 hours. Simple Injury.
4. Abrasion 3 c.m. x 2 c.m., left parietal region, hard and blunt object, within 24 hours. Simple injury.
5. Contusion 5 c.m. x 5 c.m. Left wrist, hard and blunt object, within 24 hours. Simple injury.
6. Contusion 3 c.m. x 2 c.m., left forearm, hard and blunt object, within 24 hours. Simple injury.
7. Abrasion two in number, 2 c.m. x 1 c.m. and 3 c.m. x 2 c.m., on left thigh, hard and blunt object, within 24 hours. Simple injury.
8. Abrasion two in number 2 c.m. x 2 c.m. and 2 c.m. x 2 c.m. on Right forearm, hard and blunt object, within 24 hours. Simple injury.
He further stated that all the injuries were simple. The patient was advised x-ray and was referred to the surgery ward. The injuries could be within 24 hours and by hard and blunt object. Injury Nos.1 to 3 were possible by iron bar - Article 42 and Injury Nos.4 to 8 were possible by stick - Article 29. He confirmed to have issued the medical certificate at Exh.67.
The doctor further stated that if immediate medical aid would not have been made available to PW 13, it could be dangerous to his life and injury nos.1 to 4 were on the vital organ of the body. He further stated that cumulative effect of injury nos.1 to 4 was sufficient in ordinary course of nature to cause death in case medical aid was not available. He confirmed the medical papers at Exh.68. In cross-examination, he admitted that patient was discharged on 24/8/1990 and all the injuries were simple in nature and no fracture was noticed. No damage was caused to the brain. Though he found that there could be no possibility of the death of the patient, it appears that the opinion given by the said doctor was nothing short of an opinion, not supported by the medical papers. Perusal of Exhs.67 and 68 clearly indicated that PW 13 had sustained only simple injuries, there was no history of unconsciousness, omitting or bleeding etc. Though the doctor said that he examined the patient, the medical papers indicated that PW 13 was admitted around 1.10 a.m.. It was only an off the cuff opinion by this doctor that the injuries nos.1 to 4 suffered by PW 13 could have caused his death if medical treatment was not made available to him in time and this opinion is not supported from the record. He only tried to strengthen the case of the prosecution by this after thought opinion given before the court for the first time, while in the witness box. Such an opinion is not binding on the court and it is well settled that the medical opinion is only advisory and not final. In our opinion there was no case made out by the prosecution for an offence punishable under Section 307 of IPC in regard to the injuries allegedly suffered by PW 13.
(a) a false and fabricated case was made out by the I.O. at the behest of the Sarpanch - Apparao Shinde and Police Patil - Ashok Shinde so as to settle the political rivalry and to teach a lesson to him as he was filing complaints against the Sarpanch, Police Patil and also in respect of the mis-management of the society;
(b) on 20/8/1990 Nashikrao was assaulted in the Muslim locality. On 21/8/1990 while PW 13 was sitting near the Tamboli Katta, some persons had assaulted him and subsequently his son had taken him to the Civil Hospital at Solapur and his statement was recorded on the same day. The incident in which PW 13 received injuries and the incident in which Nashikrao died were not one and the same;
(c) Police Sub-Inspector Ghadge from Mohol Police Station conducted the investigation dishonestly at the influence of Apparao Shinde, Advocate, prepared ante time FIR and all the names of the accused were added in the complaint as per the list given by Advocate Shinde.
(d) PW 13 - Janardhan Gore had met accused no.1 in the jail on 17/8/1991 and informed him in clear terms that Shinde Advocate had filed a false case and had roped in the accused party. He, therefore, tendered his apology and also stated that he was being forced to depose against him during the trial.
(e) All the witnesses were from the political party of Advocate Shinde and some of the main witnesses like Advocate Shinde and Anil Gore, the son of PW 13, were not examined and on this count also, the prosecution case was required to be discarded.
7. Coming to the issue of motive, even as per the prosecution, the resignation of PW 14 from the post of Deputy Sarpanch as well as from the membership of the Village Panchayat along with five members i.e. Sanjay Vishnu Bhuse, Ankush Pandurang Sonawane, Rajaram Vaijinath Bhacute, Maruti Madhav Dhodke and Sau. Kalavati Kashinath Sonawane were received by PW 12 and were placed before the Sarpanch - Shri. Apparao Shinde. PW 14 submitted an application (Exh.86) and as per the said application, the case of PW 14 was that he never submitted the resignation dated 15/5/1990 and that some ill-minded persons had pressurized him and obtained his signature on a typed paper and that he had not submitted his resignation on his own free will. This letter has been signed by two other persons, namely, Hari Dyandeo Shinde and Nivrutti Dyandeo Shinde as witnesses. The meeting of the Village Panchayat members was held on 30/5/1990 and his resignation was not accepted. There was no whisper of any inimical action by the accused party from 1/6/1990 till the next meeting of the Village Panchayat which was held on 31/7/1990. In the cross-examination of PW 14 improvement was brought out in respect of the alleged threat given by accused no.1 to kill him if he refused to resign. PW 18, when in the witness box, admitted in the cross-examination that PW 14 had not stated before him that accused no.1 had threatened to kill him if he refused to resign from the post of Deputy Sarpanch and member of the Village Panchayat. Thus, the motive behind the offence and as was relied upon by the prosecution, appeared to be very weak.
8. Let us examine the place, time and the manner in which Nashikrao died and more so because the defence has consistently maintained that the incident in which PW 13 Janardhan Gore was injured near the Tamboli Katta was different from the incident in which Nashikrao died a homicidal death. In the evidence of PW 19 - Shivaji Patil, Police Constable, Sadar Bazar Police Station, Solapur, the prosecution brought on record that in the station diary of Sadar Bazar Police Station an entry came to be recorded at 1.25 a.m. on 22/8/1990, on the basis of the information received from the Civil Hospital at Solapur, that PW 13 was assaulted at village Aundi at 8.30 p.m. on 21/8/1990 without any reasons and on account of earlier dispute between the parties by Uddhav Ranjan Bhuse and three others with axe and iron bar. He had sustained injuries on both his hands and was admitted in the hospital by his son Anil Gore for treatment. Patient was ok. Advocate Shri. Shinde and relation of the patient had gone to Mohol Police Station to file a complaint (Exh.103). DW 3 - Bapuji Bhosale, PSI, Control Room, Solapur was examined by the defence and through his evidence, the control room station diary extracts for 21/8/1990 were brought on record at Exhs.174 to 176. As per the entry at Sr. No.4 made in the said station diary at 1.45 a.m. on 22/8/1990 Shri. Apparao Trimbak Shinde, Advocate from Solapur reached the control room and informed that in Aundi village there was an incident of group clashes (maramari) and in that PW 13 was injured and was admitted in the Civil Hospital at Solapur. In the same village, around the house of police patil, people had gathered and were likely to attack. Accordingly wireless message was sent to Mohol Police Station and PSI Shri. Ghadge and other police personnel had left for the said village. In the evidence of PW 19, the extract of police station diary of Mohol Police Station was brought on record and as per the same, at about 2 a.m. on 22/8/1990, the wireless message from control room, Solapur was received and PSI Ghadge and four police constables were sent to village Aundi. The entry at 5 a.m. taken on 22/8/1990 at Exh.104 indicated that the Deputy S.P., Shri. Chavan was briefed about the incident at village Aundi and that one person was killed in the same. The entry made in the station diary of control room, Solapur at 6.10 a.m. was regarding the phone call received from Shri. Chavan, Dy.S.P. As per the same, Mohol Police Station PSI Shri. Gaikwad was not traceable and striking force was to be sent to Mohol Police Station. These entries and more particularly the entry made at 1.25 a.m. in the station diary of Sadar Bazar Police Station and the entry made at 1.45 p.m. in the control room diary at Solapur and the third entry made at 2 a.m. in the station diary of Mohol Police Station did not whisper that in the group clashes taken place at Aundi, one person was dead. Even the entry made at 7 a.m. on 22/8/1990 in the control room station diary did not state that one person had died in the group clashes at village Aundi within the jurisdiction of Mohol Police Station, though by that time PSI Rathod and 16 police constables had left for the said place. The entry at Exh.104, recorded at 5 a.m. on 22/8/1990 disclosed for the first time about the death of one person in the group clashes at Aundi.
9. PW 18 in his depositions before the trial court stated that at 2 a.m. on 22/8/1990 a message was received from Solapur Control Room to send police force to village Aundi and, therefore, he reached the said village between 3 to 3.30 a.m.. He learnt in the village that in the house of the police patil there was a maramari and, therefore, he reached the spot. He found that the house was closed and on knocking the door it came to be opened. The dead body of Nashikrao was found lying in the Veranda. He enquired with the inmates of the house as to who would lodge the complaint and he was informed that the police patil had gone to lodge the complaint at Mohol Police Station. He, therefore, deputed police staff for maintaining law and order and returned to the police station after spending about 2 hours in the village. He did not draw the inquest panchanama despite the fact that he had a police party with him. Two other brothers of the deceased i.e. Dattatray and Anil were present in the house along with other injured witnesses as per the prosecution case and he did not call upon any one of them to record the complaint despite the fact that a cognizable offence was noticed by him. He further stated that when he reached the Mohol Police Station at about 7 a.m. he saw the police patil (complainant) waiting at the gate and, therefore, his complaint (Exh.57) was recorded at about 7.15 a.m. and C.R. No.124 of 1990 came to be registered. He took over the investigation. He thereafter went back to village Aundi and held inquest vide Exh.50 as well as the spot panchanama at Exh.51. He seized one spear (Article 4) from the spot along with wooden plank, soil mixed with blood and four stones.
10. The inquest panchanama at Exh.50 stated that when the witnesses examined the private part of the deceased, he noticed passing of stool as well as semen. This panchanama was drawn between 9.30 to 10.15 a.m. on 22/8/1990 Spot panchanama at Exh.51 along with the inquest panchanama Exh.50 was proved through the evidence of PW 1 Nivrutti Kamble and PW 18. The spot panchanama did not indicate any blood stains noticed either around or near the body where it was kept, nor on the staircase. It was the case of the prosecution that the deceased was assaulted in the room on the first floor and after the assailants had left he came through the staircase along with PW 13 and the complainant and collapsed. He had sustained profusely bleeding injuries and still the spot panchanama did not show the presence of any blood stains at these places. The panchanama at Exh.53 which was proved through the evidence of PW 2 - Manik Mane, was claimed to have been drawn between 12.30 to 1 p.m. on 22/8/1990 in the house of the complainant and it deals with the seizure of the clothes from the person of the deceased. This is rather unbelievable. The dead body was sent for the post-mortem and was received by PW 11 at about 2.15 p.m. The blood stained clothes from the body of the deceased could be seized only after the post-mortem was over and they could not have been seized between 12.30 and 1 p.m. in the house of the complainant. To cover up this circumstance, the prosecution examined PW 21 - Vijaykumar Gavali, a police constable, who stated that he carried a naked body, covered by a cloth, to the Civil Hospital for post-mortem.
As per the entry made in the station diary of the control room at Solapur as well as the Sadar Bazar Police Station, the incident in which PW 13 was injured had taken place at about 8.30 p.m. on 22/8/1990, as per the information given by Shri. Appasaheb Shinde, Advocate. The deceased was Advocate Shinde's brother. If the deceased was assaulted in the same incident in which PW 13 was injured at about 8.30 p.m., the prosecution did not explain as to why the first information given to the control room as well as Sadar Bazar Police Station did not say so. Shri. Appasaheb Shinde, Advocate, was not examined by the prosecution though he was the first informant. Dattatray Shinde and Anil Shinde who were the other two brothers of the deceased (Dattatray claimed to be an injured witness), were not examined by the prosecution, in addition to the fact that Anil Gore, the son of PW 13 was also not examined. Even as per the complainant, the incident in which his brother Nashikrao was killed, had taken place at about 10 p.m. on 21/8/1990 and that too in his house. Deceased Nashikrao was the eldest son of Shri. Trimbak Shinde and his age was shown to be 48 years. The learned APP could not explain the circumstance of discharge of semen, as was noted in the inquest panchanama at Exh.50. As per Parikh's Textbook of Medical Jurisprudence and Toxicology, discharge of stool and semen cannot be at the same time. There is no possibility of discharge of semen when the victim is faced with a sudden shock or scare or fear of life and in such a situation, discharge of stool/urine is possible. This circumstance of discharge of semen in the inquest panchanama is suggestive that Nashikrao was assaulted while he was asleep in some place other than his home (wada) which was claimed to be the spot of the incident by the prosecution.
11. PW 13 - Janardhan Gore had stated before the trial court that he had gone to the house of the deceased between 9 to 9.30 p.m. on 21/8/1990 and the incident of attack on the deceased had taken place after half an hour in the house of the deceased. Thus, as per this witness, the deceased was attacked between 9.30 to 10 p.m. PW 3 - Ashok Shinde stated before the trial court that the deceased was assaulted by the accused party and he was found dead at 10 p.m. Whereas the entry in Exh. 103 went to show that PW 13 was assaulted at village Aundi at 8.30 p.m. on 21/8/1990. As per PW 13 - Janardhan Gore, he sustained the injuries while he intervened in the assault inflicted on the deceased, which meant that he had received injuries when the deceased was assaulted. The prosecution claimed that both, the deceased as well as PW 13, were attacked in the very same incident. Thus, the evidence of the prosecution was contradictory and the defence was successful in pointing out that the prosecution was not able to prove its case that PW 13 and the deceased sustained the injuries in one and the same incident. This creates doubts about the prosecution story that the deceased was assaulted while he was in his house (wada) and he died at about 10 p.m. and that PW 13 had sustained bleeding injuries while he tried to intervene and save the deceased from further assault. The absence of any signs of blood around the place, where the dead body was kept when the inquest was drawn or in the staircase, make the prosecution case highly doubtful that the deceased was assaulted in the wada. In our opinion, the prosecution failed to establish that the incident had taken place in the wada when the defence had specifically contended that the incident had not taken place in the wada and that the incident in which PW 13 was injured had taken place between 8 to 8.30 p.m. near the Tamboli Katta.
12. As per the prosecution, PW 13 - Janardhan Gore was an injured eye-witness in the incident resulting into the homicidal death of Nashikrao. He stated in his examination-in-chief that accused nos.1 to 11 had reached the room in which he was present along with the deceased and all of them had come from the side of house of Chougule and not through the Wada. As per him accused no.1, accused no.2, accused no.4 and accused no.5 were holding swords/barchi. Whereas accused no.3 was holding stick, accused no.7 was holding an iron bar and accused no.8 was holding a chain. Accused no.1 started to give blows by sword to the deceased and other accused also started assaulting him. He called upon the accused not to assault Nashikrao and, therefore, he tried to intervene but accused no.7 started assaults on him with iron bar. When he tried to ward off the assault he received one blow on his head. By that time PW 3 - Ashok Shinde and PW 4 - Jagannath Bhuse were already standing in the staircase and they had called Nashikrao and PW 13 downstairs. PW 4 closed the door of the staircase after Nashikrao and PW 13 started climbing down and after going down in the Wada his son Anil reached the Wada and took him away to his house. Thereafter his son Anil and Bhaskar who was the Chairman of the Co-operative Society took him to the Civil Hospital at Solapur on a motor-cycle. In his cross-examination he himself demolished the story of attack as described by him. A number of improvements/omissions were brought out in the cross-examination with reference to the statement recorded by the police. He admitted in his cross-examination that when accused nos.1 to 11 had come on the terrace, he was outside the room along with Nashikrao and he told the assailants not to assault. The incident of assault on Nashikrao lasted for two minutes and according to him four persons had assaulted Nashikrao. Nashikrao fell down but immediately stood up and when they went down the staircase, the assailants also went down. A specific question was asked to him whether 4-5 persons had assaulted Nashikrao and another 4-5 persons had assaulted him (he had named 11 accused as the assailants), he stated that it did not happen so and clarified that Nashikrao was assaulted before and the assailants did not run away after Nashikrao fell down. He also stated that he was not conscious when he was admitted in the Civil Hospital and this was contrary to the record of the hospital which clearly indicated that the patient was conscious when he was brought to the hospital. It was pointed out by the defence that in his statement recorded on 22/8/1990 by the police head constable at Solapur he had not stated that accused no.8 was holding chain, accused no.3 was holding stick and accused no.5 was holding a barchi/sword. He stated further that he could not assign any reason for the said omission. He also denied that he had visited accused no.1 in the jail on 17/8/1991 and informed accused no.1 that the accused party was framed at the instance of Appasaheb Shinde - Advocate. The defence demolished this witness through the testimony of DW 1 - Waman Gawai who was the Superintendent of District Prison at Solapur at the relevant time. He had come before the Court with the jail register and he pointed out the entry therein on 17/8/1991. As per the said entry one Sunil Namdeo Jadhav and Janardhan Govind Gore (PW 13) had visited the said jail to meet accused no.1 - Kerappa Narayan Bhuse and this witness produced the extract of the register at Exhibit 160. Against the entry of PW 13 it was mentioned that he wanted to meet his friend accused no.1 - Kerappa. The Superintendent of Jail also clarified that it was not necessary for the visitor to give an application to meet any inmate. The defence thus proved before the trial Court that the testimony of PW 13 was not without doubts, he was hiding the truth from the Court and had made his depositions unreliable, so as to support the prosecution case, though he had dined the suggestions that he was part of the false case put up in connivance and at the instance of Appasaheb Shinde, Advocate against the accused.
13. As per PW 4 - Jagannath Bhuse, after PW 3 - Ashok Shinde had closed the door of his main house and out of 40 persons mob from the accused party, two-four persons from one side and two-four persons from other side had gone on the terrace from the house of Chougule and others remained standing pelting stones in front of the house. After he heard the shouts "Hanare hana" and the cries of Nashikrao, he along with PW 3 and Tukaram Shinde went upto the staircase and remained standing there in the entrance door. He saw that accused nos.1, 2 and 4 were giving blows to Nashikrao. PW 13 - Janardhan Gore tried to separate Nashikrao but accused no.7 assaulted PW 13 with an iron bar. Accused no.3, accused no.11, accused no.9, accused no.8, accused no.6 and accused no.10 were also giving blows to Nashikrao. He had also received a blow of stone above the right ear. He then called Nashikrao and Janardhan Gore inside the staircase and they came down with bleeding injuries. His giving the list of 11 accused persons did not support his earlier statement that 2-4 persons from one side and 2-4 persons from other side had gone on the terrace so as to assault Nashikrao. In his cross-examination he admitted that on the date of the incident he had reached the house of PW 3 at 9 p.m. The role assigned by him to accused no.1 was proved to be a contradiction as compared to his statement recorded by the police. He further stated that the assault on Nashikrao went on for 3-4 minutes. He also stated that Nashikrao himself walked down the staircase and he was found dead immediately after he fell down. He did not advise PW 3 to go to the police station nor he made any phone call to the police station. After the incident he had gone to his house and went to bed and did not return to the Wada on that day as well as the next day though he attended the cremation of Nashikrao. He did not disclose the incident to anybody till his statement was recorded by the police. The defence thus proved that this was an unnatural witness and, therefore, unreliable.
14. PW 3 - Ashok Shinde is the younger brother of the deceased and was the police patil at the relevant time. As per him the incident had taken place on 21/8/1990 in the night with many people coming from the side of Maruti temple armed with sticks, swords, axes, stones etc. in front of his house and he had seen the mob from the window of the veranda. As per him accused nos.1 to 11, 13, 14, 19, 21, 22, 25 to 27 and 31 to 33 were the persons standing in front of his house and they were giving abuses. He asked them not to give abuses. However, they started pelting stones on his house and he was frightened and closed the door of the house. At that time Nashikrao and PW 13 - Janardhan Gore were in the room on the terrace. After sometime, he heard the shouting of his brother Nashikrao from the terrace and, therefore, he along with Jaganath Bhuse, Tukaram Shinde, Ramkrishna Chavan and his brother Bharat, Ashok Pawar went running through the staircase and noticed that accused nos.1 to 11 had reached the terrace and accused nos.1, 2 and 4 were armed with swords, accused no.7 was holding an iron bar. Thus as per this witness only four persons were armed. Accused no.1 assaulted Nashikrao with sword and PW 13 intervened and at that time accused no.7 gave one blow on the head of PW 13. He then called his brother and PW 13 in the staircase and accordingly they came down the staircase and he closed the door of the staircase. As per this witness, he had seen only one assault by accused no.1 on Nashikrao and one assault by accused no.7 on the head and arm of PW 13 and this was the evidence in examination-in-chief. This evidence was not in keeping with the medical evidence and more particularly the injuries noted on the person of the deceased.
This witness further stated that as soon as the deceased came down, he collapsed and was dead. He further stated that as it was night time, he apprehended danger of further assault on him and, therefore, did not go to Mohol to lodge the complaint, though the incident had taken place around 10 p.m., he waited till 1 a.m. and after everything was calm and quiet, he proceeded towards Mohol by walk and reached Mohol before the sunrise by traveling a distance of about 20 Kms. and he lodged the complaint at Exhibit 57. He returned with PW 18 and other police staff to his village between 8 to 8-30 a.m. on 22/8/1990 and the police reached the village from Solapur around 11 a.m. As per PW 18, he had left behind 4 police constables in the village when he left for the police station, at about 5.30 a.m..
In his cross-examination his testimony was totally demolished and the defence brought out that he was not speaking the truth before the Court. He admitted that he was working as a police patil for the last 5-6 years and every police patil was provided with the "Vardi book". He admitted that there was a Kotwal in the village and that he as the police patil did not make an entry of the incident in the vardi book. He also admitted that there was a post office and telephone facility in the village but he did not use it so as to immediately contact the police station at Mohol. He also admitted that village Takali-Sikandar was at a distance of 2-3 Kms. from his village and there was a sugar factory in the said village. His brother Apparao Shinde was the legal advisor of the said sugar factory which had telephone facility. He also admitted that his father was a member of the Managing Committee of the sugar factory and despite this he did not deem it appropriate to reach the sugar factory in the night and contact the police station instead of allegedly walking down to the police station after 1 a.m.. He also admitted that for the first time elections of village panchayat in his village were held in September 1989 and before that his uncle was elected Sarpanch unopposed for about 20 years and the word of his father carried lot of weight in the village. He also admitted that he was the Chairman of the Maruti Temple Committee in the village. He also admitted that all the accused persons belonged to the group of accused no.1 who had contested the elections against the panel of Apparao Shinde, Advocate. He admitted that accused no.30 - Srirang was residing in village Akluj at the time of incident and accused no.17 - Mahadeo was employed with MSEB at Kurool. He also admitted that accused no.4 had contested the election to the village panchayat against the panel of Apparao Shinde, Advocate. He further admitted that accused no.5 is the nephew of accused no.2, accused no.6 is the son of accused no.2, accused no.7 is the son of accused no.9, accused no.10 is the brother of accused no.1 and accused no.1 was the elected member of the village panchayat. He also stated that population of Aundi was about 3500. He also admitted that on the date of the incident he had gone to Mohol by the bus of the sugar factory and he had returned by about 5 p.m. and met the deceased but did not know when the deceased had taken food. As per him the incident of assault on Nashikrao went on for 5-10 minutes and he had not made any hue and cry when he had seen the accused assaulting Nashikrao and after the assault Nashikrao walked down the staircase with the support of the side walls. He went on to state in the cross-examination that all the persons were armed with sword as against his statement in the examination-in-chief that only three of them were armed with swords. When Nashikrao fell down, he did not provide him water. He also admitted that Deputy Sarpanch Kashid was holding a motor-cycle and the post office was near the Maruti temple. He did not make any telephone from the post office to the Mohol police station and did not try to inform on phone from the sugar factory or from Ankoli. He admitted that agricultural land of accused no.1 was adjoining to his land. He further stated that till 1 a.m. he did not think of using the motor-cycle of the Deputy Sarpanch nor did he make any attempt to secure a vehicle to go to Mohol to lodge a complaint. Though he admitted that there was a Muslim mohalla in his lane, he denied that Nashikrao had outraged modesty of a Muslim girl between 7 to 8 p.m. on the day of the incident. He also denied that when he had returned from Mohol, he had learnt at the entrance of the village that Nashikrao was lying dead in the veranda of his house and that he had sent a messenger to his brother Apparao Shinde, Advocate. He was not aware whether PW 18 - PSI had visited the village in his absence. He also denied that PW 18 had visited his house and enquired about the incident. He also denied the suggestion that PSI PW 18 had asked him to lodge a complaint but he refused to do so unless he had consulted his lawyer brother. He also admitted that there was a gun in his house and it was secured by his father but he could not operate it. He was confronted with his statement recorded by the police and he admitted that he had not stated that he waited till 1 a.m. before proceeding to lodge the complaint with Mohol police station. He was asked a specific question pointing out his complaint that he reached the police station to lodge the complaint only after the sunrise, and it was not the night time and he answered the same in the affirmative.
15. PW 15 - Tukaram Shinde is claimed to be another eye-witness of the prosecution. He stated that he had climbed up the staircase and had seen accused no.1 while assaulting the deceased - Nashikrao by sword, accused no.8 Sidhram while assaulting PW 13 with a chain. He further stated that accused no.3 had given a blow to Nashikrao with a stick and accused no.7 had assaulted Nashikrao with iron bar. While PW 13 was trying to intervene, PW 7 assaulted him with iron bar and accused no.3 with a wooden stick. He further stated that accused no.5 and accused no.10 had also assaulted Nashikrao by stones. This witness clearly improved on the testimony of PW 13 regarding the assault on Nashikrao as well as PW 13. He further stated that Nashikrao and PW 13 came down the staircase to the veranda and Nashikrao fell down and was found dead. He admitted in his cross-examination that he himself, PW 3 - Ashok Shinde and his brother Dattatraya and another person by name Maruti Maske were arrested on the allegation of attempting to murder one Balu Bachute and they were in the jail for 2-3 months. To a query made by the Court he stated that this arrest was after the incident of assault on Nashikrao. He further stated that he had reached the Wada at about 9 p.m.. In about 5-10 minutes the incident had started. Number of improvements/contradictions were brought out by the defence in the cross-examination of this witness. In the cross-examination he reiterated that Nashikrao was assaulted by accused no.1, accused no.3, accused no.5, accused no.8 and accused no.10. This was again contrary to what PW 3 - Ashok Shinde had stated in his depositions before the Court. In his cross-examination he further stated that he was waiting in the wada for the whole night and four police constables along with the PSI had visited the wada around 3 a.m. but the PSI did not ask him as to who had assaulted Nashikrao and how he died. This was again contrary to what PW 18 stated before the Court.
16. PW 18 - Prakash Shinde - I.O., whose testimony has been dealt with earlier partly, is another witness of the prosecution who damaged its case and made it unreliable. In fact, there is something more which the defence counsel brought out in the cross-examination of this witness so as to discard him as an unreliable witness. He stated in his cross-examination that after holding the inquest, the dead body was sent for post-mortem immediately to Mohol and about one hour would be required to reach Mohol by jeep from village Aundi. During the period of two hours that he spent at village Aundi, he had not recorded the statement of anybody though he had taken four constables with him. If the I.O. immediately on reaching the village came to know of a cognizable offence, it was surprising that he did not record the statement of any person despite spending two hours around the dead body and he also wanted the court to believe that he enquired from the inmates of the house as to who would lodge the complaint and did not do anything further after he was told that the police patil had gone to Mohol Police Station to lodge the complaint. Though he gave the list of three injured witnesses, the evidence of the doctors, examined and referred to hereinabove, indicated that there were 6 to 8 injured witnesses. It is, therefore, uncertain as to who was speaking the truth before the trial court. He admitted in the cross-examination that when the statement of PW 4 - Jagannath Bhuse was recorded by him, the said witness did not state specifically that accused no.1 - Kerappa had told that they should go up on the terrace and 2 to 4 persons from the other side had gone to the terrace and others were pelting stones. He had also recorded the statement of PW 6 - Ramrao Shinde and he did not state before the I.O. that Jitendra would inflict blow of spear on somebody. He also did not state specifically that the persons remained on the ground, continued stone throwing and that he went in front of the house of the police patil and noticed that the door was closed. PW 18 further admitted that he had recorded the statement of Harishchandra Kashid - PW 14 and he did not state before him that accused no.1 - Kerappa had threatened him that the accused would kill him if he would refuse to tender the resignation. He further stated that he recorded the statement of PW 15 - Tukaram Shinde and he did not state while recording the statement that the persons assembled after breaking the door of window had threatened that they would go back from the rear side. He had also recorded the statement of PW 16 - Vitthal Kamble and he did not state while recording the statement that there were five electric poles around the wada and that these poles were at a distance of 10-12 feet.
In his cross-examination, he stated that a register for recording the telephone calls (incoming and outgoing) was maintained at his police station along with the wireless register. He admitted that wireless message was received by his police station when he was not present. He claimed that he had made an entry at station diary, but further clarified that after returning from Aundi village at 7 a.m. he did not make any trunk-call to his superiors and further stated that without verification he was not able to state whether he had given wireless message to his superiors after returning from Aundi. He was not aware whether the extract of entry of Sadar Bazar Police Station regarding the admission of Janardhan Gore - PW 13 in the Civil Hospital at Solapur was produced before the court (This was brought before the trial court by the defence). He produced the extract of station diary of 22/8/1990 and stated that he had not received any wireless message from Sadar Bazar Police Station. He denied the suggestion that he waited for the arrival of Apparao Shinde, Advocate, before he recorded the complaint and proceeded to register it. He also denied that the investigation carried out was influenced on the instructions of the said Advocate. He also stated that when he handed over the investigation to Circle Police Inspector Shri. Dange - PW 27, all the investigation papers were handed over to him, including the statement of PW 13 - Janardhan Gore.
17. There are two more police personnel who proved to be got up witnesses before the trial court. PW 20 - Shri. Bajrang Digge was the police constable attached to Sadar Bazar Police Station and on 22/8/1990 he was posted on duty at Civil Hospital and two other police constables were working under him i.e. Shri. Patil and Shri. Dhappadule. He had stated in his examination-in-chief that on 22/8/1990 at about 6 to 7 a.m. he had received the entry from Sadar Bazar Police Station about the admission of PW 13 in the Civil Hospital. He was directed to take further steps. Accordingly, he went to the Civil Hospital, found that the patient was asleep, Medical Officer was not present and, therefore, he made a second visit at 9 a.m. when the doctor was available. After seeking the permission of the doctor and his opinion that the patient was fit to give a statement, he proceeded to record the statement of PW 13 and he forwarded the same to Sadar Bazar Police Station.
In his cross-examination, he admitted that his statement was not recorded by the IO during the course of investigation, which indicated that obviously he was not shown to be the prosecution witness when the charge-sheet was filed. He could not produce the yadi/entry received by him from the police station but produced the statement of PW 13 at Exhs.106 and 107. PW 13 had purportedly stated that accused no.1 had assaulted the deceased and he did not name any other assailant. When this was put to PW 20 in his cross-examination by the defence counsel, he volunteered to make a shocking statement as under :-
"Janardhan Gore had made such statement before me but it was remained to reduce into writing by my writer."
In his further cross-examination, the defence proved that this witness was a throughly dishonest policeman and produced by the prosecution to fill in the loopholes in its case.
18. PW 19 - Shivaji Patil is another police officer who was examined by the prosecution to fill in the gaps in its case. His statement was not recorded by the IO during the course of investigation. He stated before the trial court that while he was on duty from 8 p.m. on 21/8/1990 to 8 a.m. on 22/8/1990 at the Civil Hospital, between 1 to 1.30 a.m. he was sitting in front of the OPD Room No. 17 and he came to know that a patient from village Aundi was admitted and he had received injuries on account of assault on him between 8 to 8.30 p.m. at village Aundi. He made enquiry with Shri. Anil Gore, son of PW 13, who was present in the hospital that his father was assaulted between 8 to 8.30 p.m. by Rajan Uddhav Bhuse and three others with axe and iron bars and he was further informed by Anil Gore that he did not lodge any complaint. The further statement, reading as under, brought through this witness in his examination-in-chief indicated that the prosecution was trying to fill in the gaps in its story :
"He had told that along with his father, brother of Shinde Advocate and 2-3 persons in the village has also been assaulted and brother of Shinde Advocate might have gone to lodge the complaint."
When he was confronted with the entry at Exh. 103 as per the telephonic message, he replied that name of Rajan Bhuse was wrongly mentioned as Uddhav Rajan Bhuse. He further stated that he was informed that with the permission of Shinde Advocate his brother might have gone to lodge the complaint, but the entry was made to the effect that Shinde Advocate had gone to lodge the complaint. This attempt by the prosecution to bring the so called clarification through this witness in his examination-in-chief clearly indicated that the prosecution was trying to distort as well as suppress the facts. PW 19 was thus an unreliable witness examined by the prosecution.
19. There is one more issue i.e. regarding the availability of power supply in the house of the complainant when the incident had purportedly taken place there. Though we have discarded the prosecution case that the deceased was assaulted in the wada, it would be necessary to deal with this issue as the trial court has recorded the finding in favour of the prosecution by holding that the power supply was available and it was drawn from the house of Vitthal Mane, who is the father-in-law of the brother of the complainant. PW 16 - Vitthal Kamble was working as a peon with the Village Panchayat of Aundi for more than 20 years and his duty included to switch on the electric supply board (on the electric poles) after sunset. As per him there were about 51 to 52 electric poles in the village and five of them were around the wada of the complainant. Each pole had a bulb of 100 watts and the height of the pole was between 25-30 ft. He stated that on the date of the incident, he had switched on the electric poles after sunset and had switched off the power supply on these poles after sunrise but in his cross-examination he admitted that he had not stated before the police that there were 51 to 52 electric poles and their height was about 25-30 ft. It was also brought out that he had not stated before the police regarding the availability of five electric poles around the wada. He had also not stated before the police that on the day of the incident he had switched on the power supply and switched it off on sunrise on the next day. He denied the suggestion that he was deposing as per the instructions of Shri. Apparao Shinde, Advocate. It is obvious that he was an employee of the Village Panchayat and Shri. Apparao Shinde was the Sarpanch. The defence demolished his statement in the examination-in-chief regarding the availability of street lights in the night of the incident. Through the evidence of PW 17 - Patalu Gaikwad, PSI, Akluj Police Station, the information received from MSEB at Exh.98 was brought on record. This letter at Exh.98 addressed to the PSI of Mohol Police Station indicated that between 3.20 p.m. to 4.20 p.m. on 21/8/1990 the power supply was not available from 11 KV substation at Puluj. It further stated that power supply of village Aundi on 21/8/1990 was not discontinued.
The defence examined DW 2 - Shrikant Awadhani who was working as an Assistant Engineer at sub-division MSEB, Mohol and village Aundi was under said sub-division. He stated that Vitthal Mane was holding electric connection for domestic purpose under No.R-10 and it was disconnected on 29/6/1990 on account of default in payment of electric supply. In support of this statement, he produced the certificate at Exh.162 and the record at Exh.163. He also stated that electric supply of Trimbak Shinde was also discontinued. Shri. Trimbak Shinde is the father of the complainant and Shri. Vitthal Mane is the father-in-law of the complainant's brother. In his cross-examination this witness pointed out that despite the disconnection of power supply, electricity bills were issued at Exhs.164 to 167 in the name of Vitthal Maruti Mane. He further clarified that average billing is made and electricity bills are issued even if the power supply is discontinued. In our opinion, the trial court committed an error in reading the evidence of DW 2-Shrikant Awadhani and in recording a finding that power supply was available in the house of Vitthal Maruti Mane in the night of 21/8/1990, though this finding, in our opinion, is insignificant to decide the prosecution case. When the witness specifically stated that the power connection was discontinued in both the houses and he submitted the record in support of the statements, the trial court could not have recorded the finding merely on the basis of electricity bills that the power supply was available.
20. Having discussed the entire material evidence, as placed before the trial court by the prosecution as well as the defence, we have no doubt in our mind that the prosecution case was tainted, unreliable and continuous efforts were made to suppress as well as distort the facts coming before the court. The prosecution failed to prove beyond doubt that Nashikrao, the brother of the complainant was done to death in his wada in the night of 21/8/1990. The incident of assault had probably taken place some where else and after quite some time his dead body was brought and kept in the varanda of the wada where there was not a single blood spot noticed while drawing the spot panchanama at Exh.51. The whole prosecution story that Nashikrao along with PW 13 - Janardhan Gore was present in the room on the terrace of the wada between 9 to 9.30 p.m., that he was assaulted by the accused with weapons, he sustained bleeding injuries, he walked down the staircase along with PW 13 who also had received bleeding injuries and Nashikrao collapsed in the veranda and died on the spot, is totally unreliable and it did not inspire confidence. The trial court failed to consider the evidence of the prosecution in its right perspective and instead in a mechanical manner it accepted the prosecution story implicating the present appellants. In fact the prosecution contradicted its own case and made it highly doubtful and unreliable and in such circumstances the benefit of doubt must go to the accused. Every single eye-witness and the police official was proved to be unreliable by the defence. To begin with, the investigation carried out by PW 18 and PW 27 was slipshod and influenced perhaps from out side forces. The material contradictions brought out by the defence in the cross-examination of the so called eye witnesses as well as the police officials made the prosecution case most vulnerable and it was unlikely that PW 13 - Janardhan Gore and the deceased Nashikrao were assaulted in the same incident. PW 10 - Dr. Sharadkumar Patil is another example of the prosecution witnesses distorting the facts and making off the cuff statements while in the witness box. On the one hand he stated that all the injuries that were seen on the person of PW 13 were simple and on the other, he proceeded to state that injury nos.1 to 4 could be dangerous to the life and they were on the vital parts and their cumulative effect was sufficient in the ordinary course of nature to cause death, in case medical aid was not available. In fact the medical papers at Exhibit 68 and the medical certificate at Exhibit 67 falsified this statement made before the Court and the prosecution was trying to improvise its case to prove the offence punishable under Section 307 of IPC on the count of the purported assault on PW 13, through this witness. The findings recorded by the trial court, therefore, could not be supported by the evidence adduced before it and in our considered opinion, the prosecution failed to prove, beyond reasonable doubt, that the present appellants were guilty of staging and inflicting an armed assault on PW 13 - Janardhan Gore as well as Nashikrao in the wada between 9.30 to 10 p.m. on 21/8/1990. Hence the order of conviction and sentence impugned in this appeal deserves to be quashed and set aside.
21. In the premises, this appeal succeeds and the same is hereby allowed. The order of conviction and sentence passed against the appellants in Sessions Case No.47 of 1991 by the learned II Additional Sessions Judge, Solapur, on 6/3/1992 is quashed and set aside and consequently all the appellants stand acquitted in the said case. The bail bonds furnished by the appellants stand cancelled.