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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 72 OF 2008

Prabhat @ Bhai Narayan Wagh & Others .. Appellants

Versus

State of Maharashtra ..  

Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. Appellants herein, the original accused A-1, A-3 and A-7,  

were charge-sheeted along with certain other accused persons  

for the offences punishable under Section 452, Sections 341,  

302 IPC read with Section 34 IPC etc.  The trial Court acquitted  

all the accused persons in Sessions Case No. 7 of 1989 vide its  

judgment dated 25.9.1989.

2. On  appeal  by  the  State,  the  High  Court  set  aside  the  

acquittal of the appellants of the offences under Section 452  

read with Section 34 IPC and convicted and sentenced each

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one of them with a sentence of 1-2 years and fine with default  

sentence.   The High Court also sentenced them for offences  

punishable under Section 302 read with Section 34 IPC to suffer  

imprisonment  for  life  and  pay  a  fine  of  Rs.5,000/-.   The  

sentences were ordered to run concurrently.  Aggrieved by the  

same, appellants herein have come up with this appeal.    

3. The prosecution version is as follows:

Deceased  Sanjay  Gaonkar  and  his  two  friends,  namely,  Anil  

Raut  -  PW8 and Rajan  Angane -  PW15 were  chit-chatting in  

front of Kishor Cycle Mart at Bharad Naka, Malwan.   At that  

time,  the  complainant  Suryakant  Ramchandra  Phansekar  –  

PW4, a resident of Malwan having his house in an area known  

as Vaiery, had gone to a saloon situated just in front of Kishor  

Cycle Mart, which was owned by Vijay Chavan – PW3.   PW4  

used  to  go  to  that  saloon  regularly  for  reading  newspaper.  

While the complainant was at that shop, at about 7.30 pm on  

19.10.1987, he heard a voice of ‘run run’.  He came out of the  

shop and found that the deceased Sanjan Gaonkar was running  

towards the house of Shobhana Parkar, which was very near to  

the said saloon and the appellants 1 to 3 were chasing him with  

weapons like sword and gupti in their hands.  Deceased Sanjay

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Gaonkar  was  about  to  enter  the  house  of  Shobhana  Parkar  

when original accused no. 1 gave a blow with a weapon like  

Gupti on the neck of the deceased and he fell on the ground.  

Other  two  accused  persons  assaulted  the  deceased  with  

weapons.   PW4, noticing the above incident, went to Malwan  

police  station  and  informed  them  of  the  incident  and,  on  

request, he gave the complaint in writing.  Police rushed to the  

place of incident and found Sanjau Gaonkar lying in a pool of  

blood just  inside the door  of  the house of  Shobhana Parkar.  

The police, later, registered the offence at GR No. 81/87.    

4. The inquest panchnama (Ex. 20) noticed several incised  

injuries on the body of the deceased.  The post-mortem report  

Ex.  48  and  the  report  column  no.  17  noticed  the  injuries  

inflicted  on  the  deceased.   Having  noticed  the  post-mortem  

report and evidence on record, in our view, the trial Court as  

well as the High Court have correctly come to the conclusion  

that the death of Sanjay Gaonkar was homicidal.   

5. The  prosecution,  in  order  to  bring  home the  guilt,  had  

examined as many as 20 witnesses, out of which PWs 4, 8, 15  

and 16 are the eye witnesses. The trial court noticed various

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discrepancies,  contradictions  and  improvements  in  the  

evidence  rendered  by  the  eye  witnesses  and  held  that  the  

prosecution had failed to prove that, at the relevant time, there  

was an unlawful assembly of five or more persons and that the  

accused  persons  had  committed  offences  punishable  under  

Sections  147,  148  and  149  IPC.    The  trial  Court  had  also  

commented  upon  the  faulty  investigation  conducted  by  the  

police and ultimately, gave the benefit of doubt to all the nine  

accused persons and they were acquitted.

6. The  High  Court,  as  already  indicated,  sustained  the  

acquittal  of  rest  of  the  accused  persons,  but  convicted  and  

sentenced the appellants.  The High Court also concurred with  

the view taken by the trial Court that the prosecution had failed  

to prove that there was an unlawful assembly of five or more  

persons and, hence, there was no question of accused persons  

constituting a unlawful assembly or their being members of the  

unlawful assembly.  The High Court also, therefore, held that  

there is no evidence to show that the accused had committed  

the offences punishable under Sections 147, 148 and 149 IPC.  

The High Court, however, while assessing and evaluating the  

evidence of the eye witnesses (PWs 4, 8, 15 and 16) took the

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view that the trial  Court had given undue importance to the  

minor discrepancies, contradictions in the evidence of the eye  

witnesses and discarded them.  The High Court took the view  

that there are no reasons to discard the evidence of the eye  

witnesses  and  found  the  appellant  guilty  of  the  offences  

punishable under Section 302 read with 34 IPC and each one of  

them was directed to suffer life imprisonment with fine with a  

default clause.   The amount of fine, if paid, 50% of that was  

directed  to  be  paid  to  the  heirs  of  the  deceased  Sanjay  

Gaonkar.  

7. Shri  V.  Giri,  learned  senior  counsel  appearing  for  the  

appellants,  submitted  that  the  High  Court  has  committed  a  

grave error in reversing the order of acquittal passed by the  

trial  Court.   Learned  senior  counsel  submitted  that  there  is  

sufficient  material,  in  this  case,  to  show  that  the  views  

expressed  by  the  trial  Court  were  not  unreasonable  or  

perverse.    Learned  senior  counsel  submitted  that  the  High  

Court ought to have noticed that, on the same set of evidence,  

other six accused persons were acquitted, which was affirmed  

by the High Court and there is no reason to take a different  

view so  far  as  the  present  accused  persons  are  concerned.

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Learned senior counsel submitted that the discrepancies and  

contradictions pointed out  by the trial  Court in the evidence  

rendered  by  the  eye  witnesses  are  crucial  and  cannot  be  

brushed  aside.   Learned  senior  counsel  also  referred  to  the  

evidence of PW6 and submitted that he had not given a clear  

version of the deceased Sanjay Gaonkar going to the residence  

of Shobhana Parkar.  Learned senior counsel also referred to  

Ex.27 and submitted that the same was in fact not the FIR, but  

Ex.28 appeared to have been given by the complainant for the  

first  time.    Learned  senior  counsel  submitted  that  there  is  

sufficient indication to show that the same was fabricated and  

even if the same is accepted, learned counsel pointed out, that  

the  names  of  all  the  accused  persons  were  not  mentioned  

therein except that of the first accused and that no overt act  

had been attributed to him.   

8. Shri Shankar Chillarge, learned counsel appearing for the  

State, submitted, on the other hand, that there is no reason to  

disturb the findings recorded by the High Court and that the  

discrepancies and contradictions pointed out by the trial Court  

are  of  very  minor  nature  and  not  sufficient  to  discard  the  

evidence  rendered  by  the  witnesses.   Learned  counsel

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submitted that the prosecution had succeeded in proving that  

the eye witnesses were present at the scene of occurrence and  

the versions given by them are trustworthy and reliable.

9. We have heard both the parties at length and also gone  

through  the  oral  and  documentary  evidence,  especially  the  

evidence  of  the  eye  witnesses  PWs  4,  8,  15  and  16.  

Complainant  PW4,  it  may be noticed  after  the  incident,  had  

gone to the Malwan police station and the Head Constable who  

was present at the police station asked the complainant to give  

his complaint in writing.  PW4, therefore, gave Ex.28, wherein  

he had stated the presence of Divakar Joshi, who entered the  

house and assaulted the complainant’s friend Sanjay Gaonkar  

and he also saw Bhai Wagh and other 5-6 persons and they  

were having sword, gupti in their hands and they had assaulted  

Sanjay Gaonkar, which is reflected in Ex.28 dated 19.10.1987.  

Ex. 54 and Ex.58 dated 19.10.1987 give a different version.  Ex.  

27 has been treated as the FIR, PW4, of course, named only A1,  

A3 and A7, not all.  In Ex.28, PW4 had not named A3 and A7.     

10. We  find  discrepancies  in  the  version  given  at  the  very  

initial stage.  The discrepancies and contradictions noticed by

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the trial Court were found to be of minor in nature by the High  

Court, but in our view, there is serious flaw in the conduct of  

the  case  by  the  prosecution  and  the  discrepancies  and  

contradictions pointed out by the trial court cannot be ignored  

as minor.  No explanation is forthcoming as to why Shobhana  

Parkar was not examined in this case.  Even, according to the  

prosecution, Shobhana Parkar had also received injuries on her  

arm when she tried to intervene.  The prosecution story is that  

the deceased Sanjay Gaonkar ran to the house of Shobhana  

Parkar  and that  he was attacked just  inside the door  of  the  

house  of  Shobhana  Parkar.   If  that  being  so,  in  our  view,  

Shobhana  Parkar,  who  herself  was  injured  and  tried  to  

intervene, was a crucial witness.  Non-examination of Shobhana  

Parkar as well as the contradictory versions in Ex.28 and Ex.27  

as well as the discrepancies and omissions pointed by the trial  

court, create a dent in the prosecution story.   

11. Having  considered  the  facts  and  circumstances  of  the  

case, in our view, the view expressed by the trial Court cannot  

be  said  to  be  unreasonable  or  perverse,  warranting  

disapproval, especially when the trial Court had acquitted rest  

of  the six accused persons,  which was affirmed by the High

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Court on the same set of evidence.   Taking into consideration  

all  the facts and circumstances of the case, in our view, the  

appellants are entitled to the benefit of doubt.

12. Accordingly, the appeal is allowed and the appellants are  

acquitted  of  all  charges  and  the  conviction  and  sentence  

awarded to them by the High Court are set aside.   They are  

ordered to be let free, unless wanted in any other case.

……………………………..J.      (K.S. Radhakrishnan)

……………………………..J.      (Dipak Misra)

New Delhi, May 1, 2013