PRABHAT @ BHAI NARAYAN WAGH Vs STATE OF MAHARASHTRA
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-000072-000072 / 2008
Diary number: 25274 / 2007
Advocates: SHIVAJI M. JADHAV Vs
ASHA GOPALAN NAIR
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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