Cri.Appeal No.337/1992 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.337 OF 1992 The State of Maharashtra ..APPELLANT (Orig.Complainant) VERSUS 1. Subhash Manmathappa Nagathane, Age 23 years, Occu.Business, R/o Navi Abadi locality, Taluka Udgir, District Latur 2. Suresh Madhav Gavhane, Age 24 years, Occu.Service, R/o Chincholi, Taluka Udgir, District Latur 3. Chandrakant Madhav Gavane, Age 26 years, R/o Chincholi, Taluka Udgir, District Latur ..RESPONDENTS (Original Accused ) Mr N.R.Shaikh, Assistant Public Prosecutor for appellant Mr R.N. Dhorde, Advocate for respondents 1 to 3 - WITH - CRIMINAL REVISION APPLICATION NO.190 OF 1992 Dilip Haribhau Ambarkhane, Age 26 years, Occu.Business, Resident of Udgir, District Latur ..PETITIONER VERSUS 1. The State of Maharashtra 2. Subhash Manmathappa Nagathane, Age 23 years, Occu.Business, R/o Navi Abadi locality, Cri.Appeal No.337/1992 2 Taluka Udgir, District Latur 3. Suresh Madhav Gavhane, Age 24 years, Occu.Service, R/o Chincholi, Tq.Udgir, Dist.Latur 4. Chandrakant Madhav Gavhane, Age 26 years, Occu.Service, R/o Chincholi, Taluka Chincholi, Dist.Latur ..RESPONDENTS Mr S.B.Gorde Patil, Advocate for petitioner Mr N.R.Shaikh, Assistant Public Prosecutor for respondent No.1 Mr R.N.Dhorde, Advocate for respondents 2 to 4 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 14th December, 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Criminal Appeal has been filed by the State challenging the judgment of the II Additional Sessions Judge, Latur, dated 3.7.1992, in Sessions Trial No.90/1991, acquitting the respondents for offences punishable under Section 302 read with sec.34, Section 307 read with sec.34, Section 324 read with sec. 34 and Sec.323 read with sec.34 of the Indian Penal Code. Since the appeal and the revision challenge the same judgment of the trial Court, the appeal and the revision are being decided by this common judgment. Cri.Appeal No.337/1992 3 2. It appears that on the basis of the complaint of P.W.3 Dilip at Exh.28 an offence came to be registered. During the course of investigation the respondents-accused came to be arrested and clothes on their person came to be seized. During custodial interrogation, accused No.1 is alleged to have made a statement, which was reduced into writing at Exh.35-A expressing his willingness to point out the place where a knife was hidden by him. The accused then led the Police and the panchas to his hotel and produced a knife which came to be seized. Bhalchandra succumbed to his injuries and accordingly, post mortem on the dead body of deceased Bhalchandra came to be performed by P.W.4 Dr.Sudam Kamble. P.W.4 Dr.Kamble noticed the following injuries on the person of deceased Bhalchandra. 1. Surgically stitched wound over abdomen in midline vertical 13 stitches 10” in length; 2. Surgically stitched transverse wound over abdomen extending from mid point of wound No.1 to left flank, 10 stitches 7” in length; 3. Both flanks showed wounds for drainage corrugated rubber sheets in situ (surgical wounds); 4. Surgically stitched wound on medial aspect of right upper arm 2” above medical epicondyl 6 stitches and transverly placed 1 ½” in length; Cri.Appeal No.337/1992 4 5. Contusion on medial surface of right upper arm just below axillary region 1” x 1” reddish in colour; 6. Venesection marks on both legs just above medial malleoli. He opined that excepting the injury, which was the surgical wound, the other injuries were ante mortem. On internal examination he noticed both the lower lobes of the lungs were congested. He also noticed evidence of surgical stitching to Duodenum, jejunum, ileus and mesentry. The spleen has been removed. He opined that the probable cause of death was hypovolemic shock with stab injuries. The post mortem report is at Exh.32. The other injured, viz. P.W.6 Shaikh Raffat, P.W.7 Khajamiyan and P.W.8 Vasant were examined by P.W.2 Dr.Ramprasad Lokhotiya. However, since the aforesaid witnesses were declared hostile during trial, we do not advert to the injuries sustained by them. It also appears that P.W.1 Dr.Vasant Bhure had also examined accused Nos.2 and 3 and had noticed the injuries on their person. The seized property was referred to the Chemical Analyzer and the report of the Chemical Analyzer shows that the knife, which is alleged to have been recovered at the behest of accused No.1, was found stained with blood of “B” group, while the blood group of Bhalchandra was determined as Cri.Appeal No.337/1992 5 “A”. The trial Court, therefore, found that implicit reliance could not be placed on the testimony of P.W.3 Dilip and accordingly acquitted the respondents. 3. In order to effectively deal with the submissions advanced before us by the learned Assistant Public Prosecutor, Mr R.N.Dhorde, learned Counsel for respondents and Mr Gorde Patil, learned Counsel representing the applicant in Criminal Revision Application, it would be useful to briefly refer to the evidence of P.W.3 Dilip. P.W.3 Dilip states that he resides along with his parents and deceased Bhalchandra was his elder brother. He states that all of them run a hotel known as Amruta in Udgir town. One hotel i.e. Hotel Ajantha which is situated about 200 to 250 feets from his hotel belongs to accused. P.W.3 Dilip then states that on 20.2.1991, he along with his friend Raffat Shaikh had gone to Hotel Ajantha at about 7 to 7.30 p.m. They had ordered for refreshment and thereafter they placed an order for tea, which was not served to them. Because of the delay, P.W.3 Dilip was annoyed and questioned the waiter. It appears that there was some altercation and in the altercation Dilip was slapped by accused Suresh. Dilip informed his brother Bhalchandra, who after closing the hotel, along with Raffat Shaikh proceeded towards the hotel of the accused. According to P.W.3 Dilip he also followed his brother and Raffat Shaikh at about 10.40 p.m. Cri.Appeal No.337/1992 6 He states that accused No.1 Subhash dealt two blows of knife to his brother Bhalchandra on his abdomen. Bhalchandra, on receiving the injuries fell on the ground and P.W.7 Khaja intervened in order to rescue deceased Bhalchandra. Accused No.1 Subhash also dealt blow of knife on the abdomen of Khaja and Khaja also fell on the ground. Raffat also rushed in order to rescue his brother injured Khaja and thereafter he was assaulted by accused Nos.2 and 3 by kick and fist blows. Dilip states that he also noticed accused No.1 Subhash assaulting Raffat Shaikh with a knife on the left hand. Thereafter P.W.8 Vasant also intervened in the quarrel and sustained injuries. Dilip states that on witnessing the entire incident he was frightened and, therefore, rushed to the house and informed the entire incident to his father. His parents and he thereafter went to the scene of the offence and noticed Bhalchandra and Khaja were lying on the road with injuries. Bhalchandra and Khaja were thereafter shifted to Civil Hospital, Udgir in a jeep and thereafter as per the medical advise, they were shifted to medical hospital at Ambajogai. Thereafter he lodged his complaint at Exh.28 on the basis of which an offence came to be registered. In cross-examination he has admitted not to have stated in his complaint that Khaja was accompanied deceased Bhalchandra. Omission has also been proved that he had not stated in respect of the earlier incident that accused Suresh had slapped him and accused Nos.2 and 3 Cri.Appeal No.337/1992 7 fell on his person. Similarly, omission has been proved that he had not stated that accused No.1 Subhash had dealt a blow of knife on the abdomen of Khaja due to which he fell on the ground. Similarly, omission has been duly proved that he had not stated that accused 2 and 3 were assaulting his brother by fist and kick blows and at that time Raffat Shaikh had intervened in the quarrel and had sustained an injury to his left hand. Omission has also been proved that he had not stated that after the assault P.W.8 Vasant had also intervened in the quarrel. Omission has been duly proved that he had not stated that on witnessing the assault he was frightened and, therefore, rushed to his house and informed to his parents and thereafter returned to the scene of the offence along with his parents and then noticed that his brother and Khaja were lying on the road with injuries. Omission has also been proved that he had not stated that he and his parents removed Bhalchandra and Khaja to the Civil Hospital at Udgir. 4. Prosecution has also examined P.W.9 Haribhau Amberkhane, father of deceased Bhalchandra. He states about being informed about the earlier incident of slapping to P.W.3 Dilip. He then states that he had gone to the hotel of the accused and the accused had apologized for the said incident. He states that thereafter at about 10 O’ clock he proceeded to his house Cri.Appeal No.337/1992 8 and at about 10.00 to 10.15 p.m. P.W.8 Vasant and P.W.3 Dilip came to his house and informed him that accused Subhash had stabbed deceased Bhalchandra and Khaja. He accordingly states that he and his wife and son Dilip and Vasant proceeded to the scene of the offence, which was in front of the Ajantha hotel. He states that he noticed Bhalchandra and Khaja lying on the road having sustained injuries. He states that he enquired Bhalchandra as to who had assaulted him and Bhalchandra had informed him that accused No.1 Subhash had assaulted him with a knife. He states that Bhalchandra was thereafter shifted to the hospital where he succumbed to his injuries. 5. In cross-examination omission has been duly proved that he had not stated in his previous statement that P.W.3 Dilip accompanied by P.W.8 Vasant had come to his house and had informed him about the incident of assault. Similarly, omission has been duly proved that he had not stated in his previous statement that P.W.3 Dilip had also accompanied him to the spot and thereafter to the hospital. 6. The trial Court has disbelieved the oral dying declaration alleged to have been made by deceased Bhalchandra to P.W.9 Haribhau. P.W.3 Dilip does not refer at all to the oral dying declaration being made by deceased Bhalchandra. In fact, Cri.Appeal No.337/1992 9 according to P.W.3 Dilip deceased Bhalchandra was unconscious. Apart from that, omission on a vital aspect of prosecution case has been proved and i.e. about Dilip rushed home and informing about the incident of assault on deceased Bhalchandra. P.W.3 Dilip claims to be an eye witness to the incident and curiously, did not intervene to save his brother. Dilip then claims to have rushed home and informed his parents which fact is not supported by his father P.W.9 Haribhau. The trial Court, therefore, has disbelieved P.W.3 Dilip. Since P.W.6 Shaikh Raffat, P.W.7 Khaja and P.W.8 Vasant who are eye witnesses to the incident did not support the prosecution, the entire pivot of the prosecution revolves round P.W.3 Dilip. At the close of cross- examination, P.W.3 Dilip has not emerged as a reliable and a truthful witness. The trial Court has expressed doubt about his witnessing the entire incident in the light of the omissions, which have been elicited in the cross-examination of P.W.9 Haribhau. As pointed out by us above, the discovery of the knife at the behest of accused No.1 Subhash is of no assistance to the prosecution in furthering its case. The knife was found stained with blood of group “B”, whereas the blood group of deceased is determined as “A”. The panch witness is declared hostile and the Investigating Officer, P.W.12 Pandit Kendre also in his substantive evidence does not speak about the authorship of concealment while recording the memorandum. Cri.Appeal No.337/1992 10 7. In such circumstances, therefore, according to us the view taken by the trial Court cannot be said perverse. The view taken by the trial Court is a possible view to be taken on the basis of evidence on record. Merely because another view is possible is not a ground for interfering with the acquittal of the respondents. 8. In that light of the matter, therefore, since there is no merit in the appeal filed by the State, the aforesaid appeal is dismissed confirming the acquittal of respondents. Consequently also Criminal Revision Application No.190 of 1992 fails and is dismissed. The bail bonds of respondents 1 to 3 stand cancelled. ( A.V. POTDAR ) ( P.V. HARDAS ) JUDGE JUDGE (vvr/337.92criapeal)