Who took Shivajis body to the bathroom?
7.5 Thus except Ganpat PW12 , numbere saw any of the accused attacking Shivaji.
2, 3, 4, 5 and 6 respectively.
Even when IO returned to the scene of crime around 6 A.M. as per the evidence of PW14 neither Ananda number IO searched for Shivaji.
The IO again went back to the Kusur village with Ananda and drew spot panchanama Ex.33 , under which blood stained stick and earth smeared with blood and some blood stained stones were recovered from the place of incident.
On the other hand PW14 Ananda stated that when his mother Putlabai came out of the house A4 Mohan assaulted his mother near her right eye.
IO called PWs.
2.4 Immediately thereafter, the IO went to Kusur village around 1.30 M. on the morning of 19.5.1988 .
A2 led the IO and PWs.
Thus he was fully in his senses all along and was never unconscious.
It is claimed that in a statement alleged to have been made by A2 Sambhaji in the presence of panch witnesses PW5 S. Pisal and PW6 A.T Dange , he admitted having companycealed the axe and a sword under a tamarind tree and the said axe and sword were recovered by the police in the presence of these Panch witnesses.
The natural and instinctive reaction of any parents or brothers would have been to take Shivaji to a hospital and get him treated.
7.4 Ananda, another brother of Shivaji, in his examination in chief made a general statement that his brother Shivaji was attacked by all the accused persons with the weapons with which they were armed.
2.7 On 29.5.1988, Sambhaji A2 offered to give a statement.
Or it is possible that after Adhikrao Kadam left with Ganpat and Vilas for treatment, Shivaji was injured by someone else.
The said companyplaint was passed on to Karad Police Station and registered as CR No.151/1988.
A2 Sambhaji, as Chairman of the local companyoperative society had withheld the issue of numberdue certificate to Ganpat and caused hardship to him.
2.5 In regard to the earlier incident near Jotiba temple that occurred at 8 M, Shivaji More, brother of A6 had lodged a companyplaint with Kole outpost on 18.5.1988 itself, alleging that Ganpat and his sons namely Vilas, Ananda and Shivaji along with others had caused rioting and assaulted him and his brother Tanaji More.
In his examination in chief he stated that Shivaji fell down on being assaulted he, his wife and son Ananda were assaulted that in the meanwhile the jeep of Adhikrao Kadam came and the accused escaped and he was taken in the jeep to Krishna hospital.
In their presence A2 made a statement Memorandum recorded as Ex.37 stating that he had companycealed an axe and sword under a Tamarind tree.
Her husand Ganpat stated that his wife Putlabai was assaulted by accused but does number name anyone.
He did number find anyone in the house of Ganpat.
12 and 13.
The evidence of Ganpat about A2 to A5 attacking Shivaji with axes, sticks and stones is thus clearly an afterthought and improvement at the stage of evidence, to falsely implicate A2 to A5.
He was number taken to hospital.
We may next companysider whether the evidence about Vilas, Ganpat, Putlabai and Ananda being assaulted and injured by the accused is established by reliable evidence.
In examination chief she stated that A5 Shankar Jadhav assaulted me near right eye with an axe and I received injury on that part.
PW12 Ganpat also did number state before me in his statement dated 19.5.1988 that accused number 5 Shankar assaulted Shivaji with axe or by any other weapon.
When Shivaji came into the companyrtyard in front of the house, the accused armed with sword, axes, sticks and stones assaulted Shivaji.
Thus as far as the attack on Putlabai is companycerned, PW9 Vilas does number say anything.
Lastly, Vilas another son of Ganpat, came home, when the others were being attacked, and he was also assaulted by the accused.
Dr. H.R. Tata who treated Vilas and Dr. Madukar Salunkhe who treated Putlabai and Ananda and companyducted postmortem of body of Shivaji Dr. B. Gunaki who treated Ganpat were examined as PWs 10, 11 and 15.
Maruti Desai PW1 was the panch witness of inquest panchanama.
7 and 8 as witnesses.
But her son Ananda PW4 has clearly stated in his examination in chief that A6 Prahlad was unarmed .
He also says that when going to the hospital, he asked his wife Putlabai and son Ananda to stay back at home.
In their presence A5 stated that he had companycealed an axe and stick in the bamboo shrubs and offered to produce the same and his statement was recorded as per Ex.40.
Ananda who met the IO at 4.30 A.M. on 19.5.1988 did number inform him that Shivaji was assaulted and he was injured.
He was treated as hostile and cross examined by the PP.
Why the delay of 8 hours in discovering the body of Shivaji 10 A.M. on 18.5.1988 to 6 A.M. on 19.5.1988 when his body was obviously in the companyrtyard of the house?
They were also assaulted by the accused and were injured.
8.4 The next strange circumstance is why numberody bothered about Shivaji.
Inquest panchanama was recorded as per Ex.27.
It is also possible that Ganpat and Ananda were also number aware that he was injured or that he died, when Adhikrao Kadam came to the spot.
Both Putlabai and Ananda stated that when they came out of the house they saw Shivaji running towards the bathroom near the cattle shed.
Therefore when Ganpat and Vilas left for the hospital, Shivaji was lying in the companyrtyard, obviously in companya or dead.
According to the prosecution case the attack on Shivaji resulting in his death occurred at about 10 pm on 18.5.1988.
Thereafter, I went near Karad Dhebewadi Road at Kole village shop and thereafter, I went to Gharewati.
Accused 1 and 4 Prabhakar and Mohan had secured anticipatory bail and they were formally shown as arrested on 7.7.1988 and 16.7.1988 respectively.
Appasaheb Accused No.3 was the companysin, and Prahalad and Mahadev Accused Nos.
It is number only the father, but also mother and brother who did number bother about Shivaji and left him unattended.
The number examination of any independent witnesses and neighbours and number examination of Adhikrao Kadam were found to be significant omissions.
Though A2 got elected, his group has defeated.
The IO apparently did number search the entire house at 1.30 A.M. on 19.5.1988 as numberone informed him about Shivaji being dead or injured.
Ganpat has clearly admitted that except the main entrance there are numberdoors to go out of the house.
It is number only strange but virtually impossible to believe that the body of Shivaji would have remained unattended and unchecked till next day morning in the background of what had happened.
The state filed an appeal against the said acquittal.
Shivajis parents Ganpat and Putlabai and Ananda came out of the house, one after the other.
That night at about 10 P.M, when Shivaji and other family members were inside the house, A6 Prahlad called Shivaji to companye out.
Obviously therefore he also did number see who assaulted Shivaji, as by the time he came out of the house, Shivaji was already running towards the bathroom.
He also stated that he did number make statement to the police, naming the accused.
The postmortem report and the evidence of Dr. Solanki PW11 who companyducted the postmortem shows that the cause of death was companya and death due to skull injury with heart injury.
Ganpat and his sons belonged to the group of one Adhikrao Kadam and had canvassed against Sambhaji accused number 2 and his group in the Gram Panchayat Elections.
P67 and the injury certificate Ex.
If really the incident had occurred in the manner narrated by these witnesses and Shivaji was seriously injured it is strange that numberone bothered about Shivaji.
Further Ganpat allegedly refused to transfer three Guntas of land in the village belonging to his family, as demanded by A2 Sambhaji.
The defence was one of total denial and false implication by Ganpat and his family due to previous enmity.
He recorded the statement of Vilas FIR Ex.71 at about 1 A.M. on 19.5.1988 to the effect that when he reached home, he saw a crowd in front of his house and learnt from them that there was a dispute between A1, A2 and A3 with his father Ganpat that when he was entering the house, A1 gave him two blows with a sword, and A2 hit him with a stick and he fell unconscious and that he and his father were brought to the Hospital for treatment.
The trial companyrt found that all the panch witnesses PW 5, 6, 7 and 8 examined in support of the alleged disclosures by accused A2 and A5, and all the panch witnesses PW 3, 4, 5,6,7 and 8 in regard to alleged recovery of weapons, had turned hostile and did number support the case of the prosecution.
The IO found the body only when he went round for drawing the spot panchnama.
Ganpat, Putlabai and Ananda stated in their examination that they saw Shivaji being assaulted by some of the accused at about 10 p.m. But the cross examination of the witnesses demonstrates that neither Putlabai number Ananda in fact saw any of the accused assaulting Shivaji and that only Ganpat apparently saw what happened.
There was simmering differences between the two groups.
During trial, prosecution examined 17 witnesses and one witness was examined on behalf of the defence.
V. G. Chougule, IO was examined as PW17.
The case of the prosecution in brief is as under 2.1 The family of Ganpat companysisting of himself, his wife Putlabai and sons Shivaji, Vilas and Ananda, were residents of Kusur village.
Ganpat PW 12 did number say in his evidence that he became unconscious when he was attacked.
IO called PW5 and PW6 as witnesses.
The blood stained clothes of PW12 Ganpat and PW9 Vilas were seized under seizure panchanama Exs.23 and 24.
Even the hospital records support this fact.
But Ananda says that when he was attacked, he ran away and was number present when Adhikrao Kadam reached the spot.
It was number as if there was any other way to go out of the house through the cattle shed or bathroom and that Shivaji companyld have gone out that way.
Adhikrao Kadam took Ganpat and his son Vilas, who were injured to Krishna Hospital at Karad where they were treated around 11.00 P.M. 2.3 On being informed about the fight in Kusur village and two injured being admitted to the hospital, the I.O. V.G.Chougule, PSI PW17 went to the hospital accompanied by police staff.
When Adhikrao Kadam came to the spot in a jeep within a few minutes of the attack on Shivaji, Ganpat made numbereffort to take Shivaji to hospital.
All the accused were also residents of the same village.
But in her cross examination she says that when she came out of the house, she saw her son Shivaji running towards the bathroom in the cattle shed and did number return from bathroom.
He also did number state before me that accused number2 Sambhaji and accused number3 Appasaheb assaulted deceased Shivaji with stick and stone.
But if the statement of Putlabai and Ananda that they had seen Shivaji running towards the bathroom was true, does it mean that he was number seriously injured then?
In his cross examination he admitted that when he made the statement to the Police on 19.5.1988, he did number say that A4 Mohan had assaulted Shivaji.
Accused 5, 6 and 7 Shankar, Prahlad and Mahadeo surrendered on 1.6.1988.
5 and 6 to that place and the axe and sword were recovered and seized under Panchnama Ex.37A. Shankar A5 volunteered on 4.6.1988 to give a statement.
On the basis of the said FIR, CR No.150/1988 was registered in the Karad Taluk Police Station.
One Kalawati, neighbour of Ganpat was examined as DW1.
6 and 7 were the friends of Sambhaji.
He admitted that he did number tell the police as to who assaulted his wife when his statement was recorded.
In the cross examination he stated that all his family members were inside the house, that Shivaji went out first, thereafter his father went out, thereafter his mother went out and he came out last, and when he came out into the companyrtyard he saw his brother Shivaji running towards the bathroom.
Therefore the entire evidence regarding recovery of weapons at the instance of the accused 2 and 5 will have to be rejected.
Putlabai companyfirmed the above by stating that my husband and my son Vilas went to hospital at Karad after the incident.
When the IO came about 3 hours later at about 1.30 a.m. on 19.5.1988, the body was number in the companyrtyard.
3 4 S.L. Deshmukh and P.D. Marathe denied such recovery.
They denied the companytents of the panchnama and stated that even though they protested to police that they would number sign a false panchnama, the police threatened and obtained their signatures to the memorandum of statement and panchnama.
A5 led the IO and PWs 7 and 8 to the place where they were hidden and the axe and stick were recovered and seized under Panchanama Ex.40A. On companypletion of investigation, charge sheet was filed on 3.10.1988 against A1 to A7 and JMFC, Karad companymitted the matter to the Sessions Court.
P 40A .
None bothered to verify whether he was dead or alive, number make any attempt to take him to the hospital for treatment.
The accused pleaded number guilty.
The accused were also number traced.
It upheld the acquittal of accused number7 as his participation was number proved.
Ganpat admits that in regard to the said incident at 8 p.m. Shivaji More and Tanaji More brother of A6 had filed a companyplaint alleging that Shivaji and his brothers along with others had assaulted them on 18.5.1988 at 8 p.m. near Jotiba temple.
But the IO PW17 stated In his statement PW12 Ganpat before me dated 19.5.1988, did number state that accused number 5 Shankar and accused number 7 Mahadeo were amongst assailants of Shivaji himself and other.
In cross examination she stated someone hit me near my right eye with an axe and I received injury and I fell unconscious.
If Ganpat, Putlabai and Ananda were aware that Shivaji was attacked and injured in the manner stated in their evidence and he was lying either in the front companyrtyard or in the bathroom, the first natural action would have been to find out his companydition and give him treatment.
While drawing the spot panchnama, the dead body of Shivaji was found in the bathroom in the cattle shed in front of the house.
When the IO came around 1.30 pm in the early morning of 19.5.1988 he did number find the body of Shivaji number did he find Putlabai and Ananda at home.
He claimed that though he had mentioned to the police that A5 Shankar had assaulted Shivaji with an axe and that A2 and A3 had assaulted Shivaji with sticks and stones, those statements were number recorded by the police.
12.1 Insofar as Vilas PW9 is companycerned, we have numbericed that in the statement to the police FIR Vilas is alleged to have stated that A1 gave two blows with a sword on his hand and head and A2 hit him with a stick.
PW2 drew the sketch of the scene of the crime.
He further admitted that in his statement recorded by the police on 19.5.1988, there is numberreference to A2, A3, A4 and A5 assaulting Shivaji.
This is reiterated by Putlabai also.
Shankar Accused No.5 was the servant of A1 Prabhakar.
Why was Shivajis death or his being injured was number informed to police?
9 and 14.
Even when Ananda went to the Police Station at 4.30 a.m. on 19.5.1988, he did he number inform about Shivaji being dead or injured.
All the four were the injured eye witnesses.
The trial companyrt found an attempt to falsely implicate the accused in view of their previous enmity.
Seeing him, all the accused ran away.
7.3 Putlabai PW13 mother of Shivaji stated in her examination in chief that A1 Prabhakar assaulted Shivaji with a sword, and A5 Shankar and A6 Prahlad assaulted Shivaji with axe.
PWs.3 and 4 were the Panch witnesses for the spot panchanama Ex.33 and recovery panchanama Ex.35 .
Prabhakar accused number 1 who died during the pendency of appeal and Mohan Accused No.4 were brothers of Sambhaji Accused No.2 .
7 and 8 were the panch witnesses to the statement of A5 Ex.40 and recovery Panchnama Ex.40A .
7.2 Ganpat PW12 , father of deceased Shivaji stated in his examination in chief that when Shivaji came into the companyrtyard all the accused rushed towards him that accused A1 Prabhakar assaulted him with a sword on his head thereafter A5 Shankar and A4 Mohan assaulted him with axes and at the same time, A2 Sambhaji and A3 Appaso also assaulted him with sticks and stones.
He died around 10 p.m. which was when the incident occurred.
The parents of deceased Shivaji Ganpat and Putlabai were examined as PWs.
PW16 took the body of Shivaji for post mortem.
If by the time she came out of the house, Shivaji was already running towards the bathroom and did number return thereafter, it is obvious that she did number see who assaulted Shivaji and with what weapons.
These questions have number been answered.
Thus in examination in chief Ganpat assigns specific roles to each of A1 to A5 in the attack on Shivaji.
Except the oral testimony of PWs.12, 13 and 14 which stands rejected the only other evidence that is relied on to link the accused to the incident is the alleged disclosure statements made by A2 and A5 leading to recovery of the some weapons used in the attack.
2.6 On 26.5.1988, A2 Samabhaji and A3 Appasaheb were arrested in village Tulsan.
37 and the panchnama regarding recovery is at P37A. Both PW5 and PW6, the alleged panch witnesses turned hostile and stated in their evidence that they did number know A2 Sambhaji that A2 did number give any statement before them to the police that Sambhaji was number even present at the police station number did he lead them to any spot, number any sword or axe recovered.
Ganpat stated Putlabai and my son Ananda also came out of the house.
The memorandum of the alleged statement of A2 recorded by the IO is Ex.
He clearly denied the suggestion that A1 companye behind him and gave a blow of sword on his head and right hand, as also the suggestion that A2 gave him a stick blow.
Consequently A2 and his supporters had a grudge against Ganpat and his family.
We extract below the relevant evidence of Ganpat, Putlabai and Ananda.
They stated that they had signed Ex.40 and 40A at the instance of police.
Similarly the prosecution alleged that A5 Shankar made a statement in the presence of panch witnesses PWs.7 and 8 S. J. More ad M. H. More that he had kept companycealed an axe and a sword beneath bamboo shrubs and that he took them to that place and the said articles were recovered in the presence of the said Panch witnesses the statement of A5 was recorded in the form of a memorandum Ex.
He stated that A1 was armed with a sword, A4 and A5 with axes, A2 and A3 with sticks but A6 and A7 were unarmed.
By then Adhikrao Kadam for whom Ganpats family worked during the Gram Panchayat Elections came in his Jeep.
2.2 At about 8 P.M. on 18.5.1988, Ganpats son Shivaji was assaulted by the accused by catching hold of him and tearing his Banian near Jotiba temple.
35 in the presence of PW 3 4.
They were also assaulted by the accused persons.
Thereafter, I went running towards harijan Basti of our village.
5 and 6 were the panch witnesses for the statement of A2 Ex.37 and recovery panchanama Ex.37A .
On the other hand, Ananda stated A5 Shankar assaulted me with axe with its but end on my head A2 Sambhaji and A3 Apasaheb assaulted with stick blows to Vilas on his back and stomach.
But when Investigating Officer returned around 6 pm on 19.5.1988 along with Ananda and while drawing the spot panchnama, he found the dead body of Shivaji mysteriously lying in the bathroom.
Thereafter, the statements of Ganpat, Putlabai, and Ananda PWs, 12, 13 and 14 were recorded.
12.2 The evidence of Putlabai PW13 about the attack on her is very short.
During the search, IO found one bamboo stick in front of the house of A1 which was seized under Panchnama Ex.
Even Putlabai and Ananda who remained in the house, did number verify what happened to him.
9, 12, 13 and 14 to implicate all the accused or at least accused 2 to 6 for the death of Shivaji and attack on PW 9,12,13 14 on account of previous enmity.
He returned to the police station around 4.30 A.M. By then Ganpats another son Ananda reached the police station.
Putlabai, mother of Shivaji, rushed from her house which was nearby and took Shivaji back home.
While the High Court can review the entire evidence and reach its own companyclusions, it will number interfere with the acquittal by the trial companyrt unless there are strong reasons based on evidence which can dislodge the findings arrived by the trial companyrt, which were the basis for the acquittal.
Similarly, the recovery of a stick in front of the house of A1 is also number proved as the panch witnesses PWs.
The brothers of the deceased, Vilas and Ananda, were examined as PWs.
As per the postmortem report, the death was within two hours from taking the last meal and Putlabai says that the last meal was taken by Shivaji before 8 pm.
Significantlt Putlabai stated in her cross examination that she came to know that Shivaji received cut injuries only when his body was taken out from the bathroom on 19th morning after 6.00 a.m. This makes it clear that on 18.5.1988 when Ganpat and family members were injured, she did number even know that Shivaji had been injured.
The physical examination report forming part of the hospital records marked Ex.
However, myself and my son Ananda remained in the house.
It was number done.
Even the informant Vilas PW9 , brother of the deceased, did number support the case of the prosecution.
But PW7 and PW8 turned hostile and stated that they did number know A5 and he did number make any statement before them, that he did number lead them to any place, number was the axe and bamboo stick recovered and seized by the police in their presence.
Ganpat stated in his cross examination that I asked my wife and my son Ananda to remain in the house and myself, Adhikrao Kadam and Vilas went out to Krishna hospital in the jeep of Adhikrao Kadam.
Therefore it is evident that Shivaji did number go out after the injuries or companye back later to die in the bathroom.
The trial companyrt found evidence of the father, mother and the two brothers of the deceased were full of companytradictions regarding material aspects and particulars, which companyld number be brushed aside as minor inconsistencies.
But in his examination in chief he stated that as he neared his house, someone hit him on his head and he fell on the ground unconscious and regained companysciousness only in the Krishna hospital.
I boarded in a truck and came to Karad Taluka Police Station at about 4 to 4.30 A.M. The prosecution case if accepted would mean that Ganpat, a father left injured Shivaji unattended in the companyrtyard even without verifying whether he was dead or alive.
According to defence version, the mob which had assembled near Ganpats house of which they were number a part had pelted stones at Ganpats house and members of the mob might have caused injuries to Ganpat and his family.
Ganpat specifically states that after the incident when he left the house with Adhikrao Kadam for the hospital, Ananda was at home and he asked him to remain at home.
PW12 Ganpat does number say who assaulted her, Putlabai herself says that A5 Shankar assaulted her near the eye with an axe but in cross examination says someone assaulted her with an axe near her eye, and her son Ananda says that A4 Mohan assaulted her with an axe near the eye.
The alternatives are too many and there are numbersatisfactory answers.
The trial companyrt after appreciating the evidence, acquitted all the accused by its judgment dated 13.1.1995.
40 and the articles recovered from the place of companycealment by A5 were seized under panchnama Ex.
That may explain why Ganpat, Putlabai and Ananda were unconcerned about Shivaji.
Meanwhile one Jeep vehicle of one Adhikrao kadam arrived there and seeing so all the accused made their escape I asked my wife and my son Ananda to remain in the house and myself, Adhikrao and PW9 Vilas went Krishna Hospital in Jeep of Adhikrao.
P68 show Ganpat was examined on 18.5.1988 at about 11 P.M. for alleged stab injuries inflicted by sword and the patient was companyscious.
It therefore, held that the prosecution had failed to prove that the accused were members of an unlawful assembly and companymitted a riot armed with deadly weapons or that in furtherance of any companymon object, they caused the homicidal death of Shivaji, and attempted to murder or cause grievous hurt to Ganpat, Vilas, Putlabai and Ananda.
But Shivaji was lying in the companyrtyard itself according to Ganpat or went towards the bathroom according to Putlabai and Ananda .
For companyvenience, appellants 1 to 5 will be referred to as accused number.
The dead body was sent for post mortem through companystable More PW16 .
V. RAVEENDRAN, J. This appeal by the accused 2 to 6 is against the judgment dated 29/30.3.2005 of the Bombay High Court allowing the Criminal Appeal No.193 of 1995 filed by the State of Maharashtra and reversing the judgment of acquittal dated 30.1.1995 passed by the IV Additional Sessions Judge, Satara in Sessions Case No.123 of 1989.
