Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.8/1993 AND CRIMINAL REVISION APPLICATION NO.134/1992 CRIMIINAL APPEAL NO.8/1993 The State of Maharashtra. ...Appellant.. (Org.complainant) Versus 1] Baliram s/o Bapurao Chavan, age 25 yrs., occu.agril., r/o Khaparpangri Tq. & Dist.Beed. 2] Abhiman s/o Kashinath Shendge, age 27 yrs., occu. & r/o as above. 3] Nanabhau s/o Kashinath Shendge, age 26 yrs., occu. & r/o as above. 4] Gavliram s/o Sukhdeo Shendge, age 30 yrs., occu. & r/o as above. ...Respondents... (Org.accused) ..... Shri B.V. Wagh, APP for appellant. Smt.S.S. Jadhav, Advocate for respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 2 - CRIMINAL REVISION APPLICATION NO.134/1992 Jalindar s/o Shripati Ghige, aged 35 yrs., occu.agri., r/o Khapar Pangari Tq. & Dist.Beed. ...Petitioner.. Versus 1] The State of Maharashtra. 2] Baliram s/o Bapurao Chavan, age 25 yrs., occu.agril., r/o Khaparpangri Tq. & Dist.Beed. 3] Abhiman s/o Kashinath Shendge, age 27 yrs., occu. & r/o as above. 4] Nanabhau s/o Kashinath Shendge, age 26 yrs., occu. & r/o as above. 5] Gavliram s/o Sukhdeo Shendge, age 30 yrs., occu. & r/o as above. ...Respondents... (Nos.2 to 5 Org.accused) ..... Shri S.S. Choudhary, Advocate for petitioner. Shri B.V. Wagh, APP for respondent no.1. Smt.S.S. Jadhav, Advocate for respondent nos.2 to 5. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 13.12.2010 Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 3 - ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] Since both these matters arise from the same judgment, the criminal appeal as well as the criminal revision application against acquittal are being decided by this common judgment. 2] The State has filed Criminal Appeal No.8/1993 challenging the judgment of the 4th Additional Sessions Judge, Beed, dated 9.7.1992, in Sessions Case No. 60/1991, acquitting the respondents-accused for offence punishable u/s 302 r/w 34 of the Indian Penal Code. The Criminal Revision Application has been filed by the complainant challenging the acquittal of the respondents-accused. 3] Such of the facts as are necessary for the decision of the appeal and the criminal revision application may briefly be stated thus: PW 9 Police Head Constable Bhaskar Joshi, who was attached to Rural Police Station, Beed, recorded the complaint of PW 3 Dnyandeo on 29.3.1991. The aforesaid complaint was in respect of the accused committing the murder of deceased Shrimant on 29.3.1991 at about 5-30 p.m. On the basis of the said complaint of PW 3 Dnyandeo, an offence came to be registered u/s 302 r/w 34 of the Indian Penal Code. Investigation thereafter came to be handed over to PW 10 PSI Dattatraya Walke. PW 10 PSI Walke went to Khaparpangari along with PW 3 Dnyandeo and the other Police staff. Since it was dark, the scene of the offence – Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 4 - panchanama could not be recorded. He recorded the statements of witnesses and then searched for the accused, but the accused were not traced. Thereafter he came to Beed and arrested accused Eknath. On the next day, he again went to Khaparpangari and drew the scene of the offence – panchanama ini the presence of PW 1 Dilip and seized blood stained stones from the scene of the offence. The scene of the offence – panchanama is at Exhibit 16. Statements of other witnesses came to be recorded and the other accused came to be arrested. The seized property was referred to the Chemical Analyser for analysis vide requisition at Exhibit 36. Dead body of deceased Shrimant had been referred for post mortem examination and post mortem on the dead body of deceased Shrimant was conducted by PW 7 Dr.Ashok Kokane. Dr.Kokane noticed following external injuries: [1] Abrasion size 1 cm. x 1 cm. over left temporal region. [2] An abrasion size 3 cms. x 3 cms. over right temporal region. [3] CLW size 2 cms. x 2 cms. x bone deep over medial aspect of right ankle joint, evidence of fracture tibia lower end right side evidence of fracture talus, e/o rupture of great saphenous vein posterior tibial artery on right side. [4] An abrasion size 5 cms. x 4 cms. over lateral aspect of right ankle joint. [5] An abrasion size 4 cms. x 4 cms. over right knee. [6] An extensive contusion size 5 cms. x 4 cms. over right poplited region, extensive haemotoma and evidence of rupture of poplital artery, muscles ruptured. [7] CLW size ½ cm x 1 cm. bone deep at the upper part of poplited region, muscles ruptured, extensively and poplited artery ruptured. Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 5 - Extensive haemotoma present. [8] An abrasion size 4 cms. x 3 cms. over lower part of poplital fossa. [9] A punctured wound size ¼ cm x ¼ cm. x bone deep over medial aspect of left ankle joint. [10] Contusion size 4 cms. x 4 cms. over left poplital region. [11] An abrasion size 4 cms. x 5 cms. over left knee. [12] A contusion abrasion size 1 cm. x 1 cm. over scrotal left side, testis congested. On internal examination, he found that all the organs were pale and also noticed 200 to 300 ml. green fluid semi solid food material. He opined that death must have occurred after about six hours of consuming the last meal. He further opined that injuries nos.3, 6, 7 and 12 could have been caused by blows of hard and blunt weapon with force. He has further opined that the said injuries could be caused by pelting of stones. He opined that cause of death was hemorrhagic shock secondary to multiple injuries. The post mortem report is at Exhibit 30. Further to the completion of investigation, a charge-sheet against the respondents – accused came to be filed. 4] On committal of the case to the Court of Sessions, the trial Court, vide Exhibit 7, framed charge against the respondents – accused for offence punishable u/s 302 r/w 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 10 witnesses, Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 6 - which included PW 3 Dnyandeo, PW 4 Sudhakar, PW 5 Sakharbai, PW 6 Yeshwant and PW 8 Bhaskar as eye witnesses to the incident. The trial Court found that no reliance could be placed on the testimonies of the eye witnesses and accordingly acquitted the accused. The State thus being aggrieved with the acquittal of the accused has filed the present appeal. 5] In order to effectively deal with the submissions urged before us by the learned APP and the learned counsel for the petitioner-complainant, it would be useful to refer to the evidence of the eye witnesses. 6] PW 3 Dnyandeo states that he is the eldest of his brothers and has 32 Acres of land and they were residing jointly. He further states that accused Nanabhau had obtained a contract of constructing Samaj Mandir at the village. About fortnight prior to the incident, accused Nanabhau was digging the foundation of the said temple and the digging of the foundation had resulted in reduction of the public road. Deceased Shrimant had, therefore, asked the accused Nanabhau not to encroach on the road while constructing the foundation of the temple, but the accused Nanabhau had refused. Dnyandeo further states that there was exchange of words between accused Nanabhau and deceased Shrimant and Nanabhau had threatened Shrimant that he would commit his murder. In respect of the incident, he states that on that day, he was in his agricultural field and had returned at about 4-45 to 5-00 p.m. for taking Darshan of Lord Maruti. He states Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 7 - that there was a fair and there was also a wrestling bout in the village. He, however, did not attend the wrestling bout. He further states that the villagers had attended the wrestling bout and had returned back to their homes. PW 4 Sudhakar and others were amongst the persons, who had returned. All these persons had gathered near Maruti temple. Accused no.1 Sudhakar and accused Bhaskar were sitting on the stone platform in front of the temple. Shrimant sat near PW 3 Dnyandeo. Shrimant demanded the accounts of the money collected for the fair from deceased accused Eknath and accused Nanabhau. Accused Eknath descended from the stone seat and told Shrimant that he would give him the final account and accordingly pulled him from the place where Shrimant was sitting. Shrimant fell on the ground and the other accused also alighted from their platform and dragged Shrimant to a distance of about 10 to 12 ft. on the western side. Stones were lying near Maruti temple to be used for the construction of Samaj temple and the accused took the stones and assaulted Shrimant with the stones. PW 3 Dnyandeo alighted from the place where he was standing and stood aside. Shrimant sustained injuries to his right thigh, knee and ankle and also injury to his left shin. It appears that Shrimant also sustained injury to his private part and there was bleeding. Dnyandeo states that he tried to rescue Shrimant but accused Baliram had threatened that if any one intervened, he would meet the same fate as that of Shrimant. Dnyandeo states that, therefore, he did not intervene. He further states that PW 5 Sakharbai wife of Shrimant also came to the scene of the offence and fell on Shrimant in order to protect him from further Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 8 - assault. Shrimant told Dnyandeo that because of the injuries, Shrimant may not survive and requested Dnyandeo to take him to the hospital immediately. An auto rickshaw was called from Beed and Shrimant was taken in the auto rickshaw towards Beed. Because of some mechanical defect, the auto rickshaw could not proceed ahead and, therefore, Dnyandeo came on bicycle to Beed and brought another auto rickshaw. Meanwhile, the auto rickshaw driver had engaged a jeep and Dnyandeo noticed that Shrimant was being brought in the said jeep. He states that he asked the driver to stop the jeep and felt the pulse of Shrimant, but the pulse was not noticeable. The jeep was thereafter taken to the hospital, but Dnyandeo did not go to the hospital as he was feeling giddy. He states that he went to the Police Station along with his brother Vikram and lodged his report at Exhibit 21. In cross examination, omission has been duly proved that he had not stated that accused Baliram had pushed him aside when Dnyandeo had attempted to intervene and that accused Eknath had pulled Shrimant from the place where Shrimant was sitting. In cross examination, he could not state the place where injuries by stone were caused to Shrimant by the other accused. He has admitted that Shrimant was shouting when the accused were assaulting him, but no one had rushed to his rescue. Omission has been duly proved that he had not stated in his previous statement that wife of Shrimant fell on person of Shrimant in order to protect him from further assault. Omission has been duly proved that he had not stated that the accused stopped assaulting Shrimant as well as wife of Shrimant fell on his person. He has admitted that he has not produced any Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 9 - documents on record to show that contract for the construction of Samaj Mandir was awarded to accused Nanabhau. 7] From the evidence of PW 9, it is apparent that Dnyandeo had not stated the names of the eye witnesses viz. PW 5 Sakharbai, Shankar and Bhaskar in his FIR. Similarly, he had not stated that accused Baliram had pelted a stone on the thigh of Shrimant. Omission has been duly proved that he had not stated the names of the persons, who were sitting on the stone platform near the temple. 8] Prosecution has examined PW 4 Sudhakar, who states that he was present at the scene of the offence and had attended the wrestling bout. He too deposes on similar lines as PW 3 Dnyandeo. He states that he had tried to intervene, but accused Baliram had stated that if any one intervenes, he would meet the same fate as that of Shrimant. In cross examination, he has admitted that Shrimant, all the accused, Dadarao, Jalindar, Babu and Sarangkar were not present together and sitting on the platform. He states that they came one after the other. Omission has been duly proved that he had not stated in his previous statement that Dadarao, Sarangkar, Babu and Jalindar were present at the time of the incident. Omission has been duly proved that he had not stated in his previous statement that Baliram pelted stone on the right thigh of Shrimant. Omission has been duly proved that he had not stated that the injury on the thigh of Shrimant was bleeding. Omission has been duly proved that he had not stated that Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 10 - Shrimant had sustained bleeding injury on his left thigh, private part, right knee and ankle joint. Omission has been duly proved that he had not stated that he tried to intervene. He could not state why it was not stated by him in his statement that PW 3 Dnyandeo, Babu and Sarangkar were present and then Bhaskar came running. Omission has been duly proved that he had not stated that PW 5 Sakharbai fell on the person of Shrimant. Omission has been duly proved that he had not stated that Shrimant had told PW 3 Dnyandeo to shift him to the hospital immediately as he would not survive. 9] Prosecution has also examined PW 5 Sakharbai, who deposes as per the version of the earlier witnesses. It may incidentally be noted that presence of PW 5 Sakharbai at the scene of the offence has been proved to be an omission in the F.I.R. as well as in the previous statements of the other eye witnesses. Prosecution has also examined PW 6 Yeshwant as an eye witness. Presence of other witnesses at th scene of the offence has been proved to be an omission. The other eye witnesses have also not deposed to the presence of PW 5 Sakharbai and PW 6 Yeshwant at the scene of the offence. Similar is the case in respect of PW 8 Bhaskar. PW 8 Bhaskar is the brother of PW 3 Dnyandeo and Dnyandeo does not state about the presence of PW 8 Bhaskar. In any event, the reference to the name of PW 8 Bhaskar has been proved as an omission. PW 8 Bhaskar in his cross examination has admitted that he had not stated the names of the other witnesses in his previous statement including the name of PW 3 Crim.Appeal 8/93 & Crim.Revn.Appln.134/92 - 11 - Dnyandeo as an eye witness. He categorically admits, “I did not see my brother Dnyandeo while the accused were beating Shrimant.” Omission has been duly proved in respect of the overt-acts attributed to the accused. 10] With the assistance of the learned APP, we have perused the findings recorded by the trial Court as well as the evidence of the eye witnesses. In the face of such contradictory evidence of the eye witnesses, who do not speak about the presence of each other at the scene of the offence, we can not fault the trial Court for refusing to place reliance on their testimonies. The view taken by the trial Court is a possible view to be taken on the basis of evidence on record. We do not see any infirmity whatsoever in the reasoning of the trial Court. In such circumstances, therefore, since the view taken by the trial Court is a possible view, we are not inclined to interfere in the criminal appeal against acquittal even if another view on the evidence is possible. 11] We, therefore, see no merit in the State appeal and the Criminal Appeal No. 8/1993 is accordingly dismissed. The Criminal Revision Application No.132/1992 questioning the acquittal of the respondents-accused is also dismissed. (A.V. POTDAR, J.) (P.V. HARDAS, J.) ndk/cra893