((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1699 OF 2008 The State of Maharashtra through Hill Line Police Station, Tal.Ambarnath, Dist.Thane. Applicant versus Ravi Sukrya Bhoir and 3 others Respondents Mr.P.S.Hingorani, APP for applicant. CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE : 21st August 2008 PC : 1. This is an appeal against acquittal of accused persons in Sessions Case No.1310 of 1996. The respondents were tried for offences punishable under sections 302, 307, 323, 504, 506 r/w 34 of Indian Penal Code. They were also tried under section 135 of the Bombay Police Act. 2. The prosecution has alleged that in furtherance of their common intention the accused committed murder of one Rajesh Vandar Kambekar and that they also attempted to commit ((-2-)) murder of some others. On the basis of these allegations charges were framed. The accused pleaded not guilty. 3. The prosecution story was that on 24th November 1995, the accused nos.1 and 2, who are brothers, had kept firewood in open land in front of their own house. At about 7.00 p.m., Vandar asked these persons to remove the firewood from the open land. Whereupon the accused came there and accused no.1 Ravi gave a blow of stone muller on the head of Vandar by bringing it from his house. When the deceased Rajesh came to rescue Vandar, the accused nos.3 and 4 had made him fall on the ground and accused no.1 gave a blow of stone muller on the abdomen of the deceased. Vandar got injured. Both, Vandar and the deceased, were taken to their house. Hanuman who is the elder son of Vandar and elder brother of the deceased with sister of Vandar went to Hill Line Police Station, Ulhasnagar and narrated the incident. The Police came in jeep and took the injured to Central Hospital, Ulhasnagar where Vandar was admitted but the deceased was shifted to Sion Hospital, Mumbai where he died. ((-3-)) 4. Vandar’s statement was also reduced into writing after he was admitted to Central Hospital, at Ulhasnagar. On the basis of this report police registered crime bearing no.I-82/95 at Hill Line Police Station for the offences punishable u/s 323, 326, 504 and 506 r/w s.34 of IPC.. After the death of the deceased Rajesh and receipt of medical report of Vandar, section 302 of IPC came to be added and section 326 of IPC came to be altered into section 307 of IPC.. 5. The prosecution examined thirteen witnesses to prove their case. PW-2 and PW-6 were projected as eye witnesses. PW-2 is sister of Vandar. She stated that after Vandar was assaulted, the deceased had come in front of the house. Accused nos.2 and 4 caught the deceased and made him to fall down, whereupon, the accused no.1 Ravi gave a blow of stone muller on his lower abdomen. Accused no.3 also started beating the deceased by stick. She went and covered the deceased. Thereafter the accused ran away towards the side of hand-pump. She and others called Kaka Salvi to help them in lifting the deceased. Thereafter the deceased was taken to the house of Vandar. ((-4-)) After some time, Police came and Police took him to Central Hospital, Ulhasnagar. Vandar was admitted in Central Hospital whereas deceased was shifted to Sion Hospital. While treatment was given to the deceased. The deceased died in Sion Hospital. 6. PW-6 is another eye witness according to the prosecution. She deposed that Rajesh came from the house of Eknath. Accused nos.1 to 4 caught the deceased near the house of one Abhiman and all accused started beating the deceased. When the deceased fell on the ground, accused no.1 Ravi assaulted the deceased by stone muller on his abdomen. Accused no.3 assaulted the deceased by wooden rod. Accused nos.2 and 4 assaulted the deceased by fist blows. After she reached near the deceased, all the accused ran away. At that time Rajesh had fallen in front of the house of accused no.1. PW-2 shouted and called one Kaka Salvi. 7. Both these witnesses projected as eye witnesses have categorically stated that the deceased was given a blow by a stone muller on his abdomen. PW-13 who was the Doctor who ((-5-)) examined both the injured, was summoned after an application was moved by the Public Prosecutor under section 311. He stated that on 24th November 1995 he was working as M.O. in Central Hospital, Ulhasnagar. On that day, Police Station, Hill Line had sent the deceased to Central Hospital for examination and treatment. He examined and found that the deceased had received following injuries :- "1. Swelling over peripheral region of umblica defuse with tenderness on abdomen. 2. Swelling over hypo ambical region on abdomen tendeness 2+." 8. The Doctor who conducted the post mortem had died. Therefore, he could not be produced before the Court but the papers relating to the autopsy were exhibited as Exhibit-38 by another Doctor who identified the signature of the deceased Doctor. In this report, the following injuries were found by the Doctor who had prepared the post mortem report :- "1. Scalp - Moderate Haemotoma seen over right parieto temporal region. 2. Skull - No fracture." ((-6-)) The autopsy record (Exhibit-38) shows that the autopsy was carried on 26th November 1995. PW-13 had examined the patient on 24th November 1995. So between 24th to 26th November 2005 the deceased was in hospital and he had died on 25th November 2005. The Doctor who conducted the post mortem found moderate haemotoma over right parieto temoral region. The Doctor who conducted the post mortem did not find any injury on the abdomen of the deceased whereas the Doctor who examined before post mortem found two serious injuries on the abdomen of the deceased. 9. The learned Judge has also come to the conclusion that PW-2 and PW-6 were projected as eye witnesses were not, as a matter of fact, eye witnesses. The projected eye witnesses also did not state that by stone muller, the head of the deceased was attacked. Both the witnesses stated that by stone muller, the abdomen of the deceased was attacked. 10. Since the conclusions drawn by the Trial Court are possible, we do not find merit in the case to grant leave to file appeal. Rejected. ((-7-)) (BILAL NAZKI, J.) (A.A.KUMBHAKONI, J.)