Sunil Dattatraya
Vaskar & ANR. Vs. State of Maharashtra [2008] INSC 1585 (17 September 2008)
Judgment
SUPREME COURT OF
INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.896-897 of 2005 Sunil
Dattatraya Vaskar & Another ...Appellants State of Maharashtra
...Respondent
ALTAMAS KABIR, J.
1.
These
appeals have been filed against the judgment and order dated 4.5.2005 passed by
the Bombay High Court in Criminal Appeal No.921 of 1988, which was heard along
with Criminal Revision Application No.316 of 1988, reversing the judgment and
order of acquittal 2 passed by the Sessions Judge, Raigad, Alibag, in Sessions
Case No. 16 of 1987, under Sections 302 and 307/34 IPC and Section 25(1) (a) of
the Arms Act, convicting and sentencing the appellants to life imprisonment.
2.
Criminal
Appeal No.921 of 1988 was filed by the State of Maharashtra against the
appellants herein and two others, against the judgment of the Sessions Judge,
Raigad, Alibag, acquitting all the four accused persons of the charges framed
against them as indicated hereinabove.
3.
The
Criminal Revision Application NO.316 of 1988 was filed by the original
complainant against the same judgment of acquittal and both were taken up by
the Bombay High Court together and disposed of by a common judgment.
Two of the accused
persons, namely, Dattu alias Dattatraya Kana Vaskar and Ganesh Govind Patil,
accused Nos. 1 and 4, 3 respectively, died during the pendency of the appeal
before the High Court and an order of abatement was recorded against them and
the appeal was continued against Sunil Dattatraya Vaskar and Rohidas Dattatraya
Vaskar, the accused Nos.2 and 3 who are the appellants before this Court.
4.
According
to the prosecution case, on 26.10.1986 the deceased Janu was standing in the
courtyard of his house which is situated just opposite the house of the accused
persons. The accused No.1 was the father of accused Nos. 2 and 3, the
appellants herein, while the accused No.4 was a stranger to the family of the
accused Nos. 1 to 3. According to the prosecution all the accused persons were
standing in the gallery of their house opposite to the courtyard of the house
of the deceased and at about 4 p.m. they started shooting from their fire-arms
at the deceased.
During the shooting,
PW 3 Atmaram Patil, son 4 of the deceased, was standing near the foot- step of
his house and called his father when as a result of the firing Janu sustained
pellet injuries and fell. Atmaram ran to help him, but he also suffered pellet
injuries in the firing by all the accused persons. The other witnesses who were
present in the courtyard at that time also suffered pellet injuries. PW 2
Keshav, the complainant in this case, was also present in the courtyard when
the incident occurred and he was also injured. He was lifted and taken to his
house. The complainant thereafter proceeded to Panvel Police Station from
Pargaon village and lodged the complaint in the Police Station and being
himself injured he was sent to the hospital for treatment. Pursuant to the
complaint made by PW 2, the case was registered as CR No.575 of 1986 under
Section 302, 307/34 IPC and Section 25(1)(a) of the Arms Act.
5.
As
indicated hereinbefore, charges were framed against all the accused persons
that in furtherance of their common intention they had committed the murder of
Janu Ganu Patil by firing gun shots at him when he was standing in the
courtyard of his house and several other persons were also injured.
6.
After
considering the evidence led on behalf of the prosecution the Sessions Judge by
his judgment dated 11.7.1988 acquitted all the accused persons upon holding
that the prosecution had failed to establish the charges against the accused
persons against all reasonable doubt and that since the probability of the
defence version could not be totally ruled out, they were required to be given
the benefit of doubt in the case.
7.
The
State of Maharashtra and the complainant filed the appeal and revision as
mentioned hereinbefore and both were taken up for 6 hearing by the High Court
together and disposed of by a common judgment.
8.
Upon
re-examining the evidence the High Court held that the trial court had
erroneously placed a good deal of emphasis on a statement made by the Medical
Officer during cross examination that injury No.1 sustained by the deceased
could be caused by ground level firing towards him, while in his examination-
in-chief he had stated that such injuries were possible if the gun-shots were
fired at an angle of 45 degrees which would indicate that the shots had been
fired from a higher level than if the deceased was standing on ground level
which fitted in with the story of the prosecution that the guns had been fired
from the gallery of the house of the accused Nos.1 to 3. The High Court
disbelieved the defence suggestion that the deceased must have been lying down
in the cattle-shed since a good deal of blood was found on the floor of 7 the
cattle-shed, which suggested that the deceased received injuries while he was
in a sleeping position in the cattle-shed and not standing in the courtyard.
According to the High Court the blood in the cattle-shed was on account of the
fact that after he had sustained injuries, his family members carried the
deceased Janu to the cattle-shed in a bleeding condition as a result of which
there was a good deal of blood found in the cattle- shed.
9.
The
High Court also observed that the trial Judge had wrongly discarded the
evidence of the eye-witnesses on the sole ground that they being related to the
deceased were interested witnesses, while being family members, it was but
natural that they should be on the spot and hence natural witnesses to the
incident. In the aforesaid circumstances, the High Court allowed the appeal and
the Revision filed by the State of Maharashtra and 8 the complainant and
reversed the judgment of acquittal passed by the trial Judge and convicted the
appellants herein of the charges framed against them and sentenced them to life
imprisonment.
10.
It
is the said judgment which is under challenge in these two appeals filed under
the provisions of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970.
11.
Mr.
Sushil Kumar, learned Senior Advocate appearing for the appellants, submitted
that the prosecution witnesses Nos.2,3,4 and 6 were closely related to the
deceased. Mr. Kumar urged that their evidence should have been considered with
a degree of caution by the High Court while reversing the judgment of acquittal
into one of conviction under Sections 302, 307 read with Section 34 IPC and
Section 25(1)(a) of the Arms Act, and sentencing them to life imprisonment and
9 payment of fine of Rs.5,000/- each, in default to suffer R.I. for further
period of two months, and their further conviction under Section 307 read with
Section 34 IPC and sentencing them to suffer R.I. for 7 years and to pay a fine
of Rs.5,000/- each, in default to undergo sentence of R.I. for one month.
12.
It
was also submitted that a supplementary complaint had been filed by PW 2,
Kishor Janu Patil, the son of the deceased, by which the motive for the alleged
murder was sought to be modified. It was submitted that while in the complaint
the motive for the shooting was shown to be an incident involving one Walia
Mahadya, who was a servant of the accused No.1 Dattu Kane Vaskar, and is alleged
to have entered the house of one Pandhari and had tried to outrage the modesty
of his wife, in the supplementary complaint it was attempted to be established
that in actual fact the said 10 Walia Mahadya had tried to outrage the modesty
of a girl, Kamali (PW 12), who had gone to sleep in the said house and that the
said matter had been taken up at a meeting of the Panchayat where the elder
brother of PW 2 Atma Ram Patil, who was examined as PW 3, was one of the Panch
Members. It was stated that since a decision had been given against Dattu Kanu
Vaskar, he along with other accused, in order to extract revenge, participated
in the incident which resulted in the death of the father of P.W.3 and the
complainant and gunshot injuries being sustained by PW 3 Atma Ram Patil.
13.
Mr.
Sushil Kumar urged that by altering the motive for the alleged incident, the
prosecution tried to connect the accused persons with the incident of shooting
which resulted in the death of Janu Ganu Patil.
14.
Referring
to the site plan of the place of occurrence and the nature of the injuries
sustained by the deceased and P.Ws. 2, 3 and 6, Mr. Sushil Kumar urged that it
was quite impossible for the incident to have occurred in the manner as was
sought to be established by the prosecution. It was submitted that while
according to the prosecution the accused persons had fired from the gallery of
their house which was situated at a height above the courtyard of PW 3, the
nature of injuries on the deceased and P.Ws. 2, 3 and 6 makes it clear that
such firing could not have happened in the manner indicated by the prosecution.
It was urged that having regard to the evidence of PW 11 Shri Ramrao, who at
the relevant time was Medical Officer, Panvel, and had examined the injured
persons and had also conducted the post mortem examination of the deceased,
except for injury No.11 mentioned in the report, none of the other injuries
could have been caused as a result of 12 firing from the gallery of the
opposite house.
It was urged that in
his cross examination PW 11 had mentioned that injury No.1 i.e.
`Punctured wound' on
the right scrotum could have been caused by ground level firing at the
deceased. It was urged that all the injuries apart from injury No.11, were
possible by ground level firing, but as far as injury No.11 is concerned, the
same could not have been caused by ground level firing and had been caused by
firing from a higher level at an angle of 45 degrees. It was urged that the
said evidence of the Medical Officer, was in itself sufficient to disprove the
prosecution version of the manner in which the incident had occurred, since the
firing which caused the injuries to the deceased as well as the other
witnesses, could only have been possible if the firing had taken place at
ground level and not from the gallery of the opposite house.
15.
It
was also submitted that the gun-shot injuries had tattoo marks around the edges
which proved that the firing had been resorted to from close quarters and not
from the gallery of the house opposite to the house of the deceased and that of
his son Atmaram, which also fitted in with the defence version that the
injuries could only have occurred if the firing had been done at ground level.
16.
In
this regard reference was also made to the evidence of the Investigating
Officer of the case, Isram Pawar, who was examined as P.W.15, to show that
eight empty cartridges had been seized from the house of the accused No.1 and
that the gun alleged to have been used in the firing had been recovered from a
well at his instance. It was also shown that in cross- examination P.W. 15 had
admitted that he had also taken the gun of Gajanan Gopal Patil into his custody
but had not sent the same to the 14 ballistic expert for his opinion as to
whether the shots which had been fired and the pellets which had been recovered
from the victim's body, could have been fired from the said gun, raising doubts
as to which gun had actually been used and the circumstances in which the shots
had been fired.
17.
Mr.
Sushil Kumar submitted that even the motive for the commission of the offence,
as projected by the prosecution was not established since Kamali, who had
lodged the First Information Report of the alleged attempt to outrage her
modesty, was not examined by the prosecution.
18.
It
was further submitted that the High Court had in reversing the judgment of
acquittal by the trial Court and substituting it by an order of conviction
under Section 302, 307/34 I.P.C. and Section 25(1)(a) of the Arms Act acted
contrary to the well-established 15 principles recently reiterated in
Chandrappa vs. State of Karnataka, [2007 (4) SCC 415].
Reliance was placed
on the fifth principle mentioned in the said decision to the effect that if two
reasonable views are possible on the basis of the evidence on record and one
favourable to the accused has been taken by the trial Court, it ought not to be
disturbed by the appellate Court.
19.
Defending
the judgment and order of the High Court, Mr. Chinmoy Khaladkar, learned
advocate, urged that the trial Court had not considered the evidence of the
eye-witnesses, of whom three were independent witnesses, in holding that the
prosecution had failed to prove that the accused were guilty of the charges
framed against them and acquitting them.
20.
The
evidence of P.W.2, Kishore, one of the sons of the deceased and an eye-witness
to the 16 incident who has narrated the events clearly and without any
ambiguity, was also relied upon by Mr. Khaladkar to demonstrate that the
deceased after receiving the gun-shot injuries was lifted and carried to the
cattle-shed from the courtyard. In the process, the witness, his mother, her
sister and sister-in-law, Chhaya, were also injured and he too had to be
hospitalized. Holding that the occular evidence was not only credible but also
trustworthy, the High Court was of the view that the trial Court had erred in
discarding the evidence of the eye-witnesses, most of whom were related to the
deceased, and accepting the defence theory that it was Kishor (P.W.2) who had
taken the gun of accused No.1 and had resorted to firing which killed his
father and injured the others who were present. It was contended on behalf of
the State that no specific questions had been put to the witness in
cross-examination as to 17 the manner in which the firing had taken place.
21.
Having
considered the submissions made by counsel for the respective parties and the
evidence addressed during trial, we are of the view that the impugned judgment
of the High Court does not warrant interference.
22.
The
main point of Mr. Sushil Kumar's submission is that having regard to the nature
of the injuries on the person of the deceased and the place from where his body
was recovered, the incident had not occurred in the manner suggested by the
prosecution. Mr. Sushil Kumar relied heavily on the statement made by P.W.11
Ramrao, who had conducted the post-mortem examination, that injury No.1 to the
scrotum of the deceased was caused by ground level firing. According to Mr.
Sushil Kumar, the said statement of how the injury had been caused to the
deceased demolished the 18 prosecution case that the guns had been fired from
the gallery of the house of the accused, which was opposite to the court-yard
of the house of the deceased and that of his elder son P.W.3 Atmaram.
23.
Apart
from the above, Mr. Sushil Kumar also placed a good deal of reliance on the
fact that the body of the deceased was recovered from the cattle-shed, in
support of his contention that the firing had not taken place in the manner
indicated by the prosecution and that the deceased had been fired at, while he
was sleeping inside the cattle-shed.
24.
As
indicated hereinabove, we are unable to accept both the submissions of Mr.
Sushil Kumar. The evidence of P.W.11, the Doctor who conducted the post-mortem
examination and who also examined the others who were injured in the firing
clearly supports the prosecution story of the incident. According to P.W.11,
19 the injuries on the person of P.W.3 Atmaram were possible if he was standing
on the ground floor and the gun was fired from the gallery and that such types
of injuries were also possible in respect of the other patients. In answer to a
query of the Court as to whether the injuries to the deceased could be caused,
if he was hit by the gun shot at an angle of 45 degrees fired from a gallery at
a height at the deceased while walking on the road, his answer was positive.
Furthermore, the Doctor has also said quite definitely that it was not possible
to sustain the injuries as suffered by the decease if he was sleeping on the
ground. What is of interest is that according to the Doctor, it was injury No.1
which was caused by ground-level firing at the deceased.
25.
The
evidence of P.W.11, while generally corroborating the prosecution case, is at
variance with the occular evidence to the extent of injury No.1 on the
deceased. The said aspect of the matter has been dealt with 20 by the High
Court by placing reliance on the decision of this Court in the case of Ramakant
Rai vs. Madan Rai, [2004 Crl. Law Journal 36] reiterating the principle that
where the eye- witness account is found to be credible and trustworthy, the
medical opinion suggesting an alternate possibility is not accepted to be
conclusive. When injuries to all the persons, including the deceased, were held
to be on account of firing from a height, it has to be held that the High Court
had correctly accepted the prosecution version of the incident resulting in the
death of Janu Patil.
26.
Even
the second limb of Mr. Sushil Kumar's submission does not stand scrutiny having
regard to the evidence of P.Ws. 2, 3, 4, 5, 6 and 7 who stated that after Janu
Patil sustained injuries in the firing, he was removed by them to the
cattle-shed where he was ultimately found.
27.
Having
regard to the above, we see no reason to interfere with the judgment of the
High Court and the Appeal is accordingly dismissed.
...................................................J.
(ALTAMAS KABIR)
...................................................J.
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