1 Cri.AppealNo.483/2010 with 126/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.483 OF 2010 1) Vishnu Annasaheb Padul Age: 26 Yrs., occu. Agril. 2) Ganesh Trimbak Padul, Age: 46 Yrs., occu.Agril. Both r/o Kawtha, Tq. And District Jalna. = APPELLANTS (Orig.Accused Nos.6 & 8) Versus 1) The State of Maharashtra and another. = RESPONDENTS. *** Mr. Joydeep Chatterji, Advocate for Appellants; Mr. VD Godbharale, APP for State. ----- WITH CRIMINAL APPEAL NO.126 OF 2011 The State of Maharashtra. = APPELLANT (orig.Complainant) VERSUS 1) Nayabrao s/o Vithoba Padul Age: 70 Yrs. r/o Kawtha Tq. And Dist. Jalna. 2) Satyabhama w/o Annasaheb Padul Age: 45 Yrs., r/o as above. 2 Cri.AppealNo.483/2010 with 126/2011 3) Muktabai w/o Ganesh Padul, Age: 40 Yrs., r/o as above. 4) Anasaheb s/o Nayabrao Padul, Age: 50 Yrs., r/o as above. 5) Janardhan s/o Ganesh Padul age: 27 Yrs., r/o as above. 6) Prabhakar s/o Annasaheb Padul Age: 21 Yrs., r/o as above.= RESPONDENTS (orig.Accused Nos. 1 to 5 and 7) *** Mr.VD Godbharale, APP for State. Mr.Joydeep Chatterji, Adv. For Respondents. *** CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE OF RESERVING JUDGMENT : 17th August, 2011. DATE OF PRONOUNCING JUDGMENT: 25th August, 2011. ORAL JUDGMENT (PER:- A.R.JOSHI,J.): 1) Heard the learned Counsel for the respective parties. 2) By this common oral judgment and order, both the Criminal Appeals are being disposed of, as both arise out of the same judgment and order dated 26th November, 2010 passed by the Additional Sessions Judge No.2, Jalna in Sessions Case No. 87/2010. 3 Cri.AppealNo.483/2010 with 126/2011 3) Eight accused persons, were tried for the offence of rioting, armed with deadly weapons, and for the offence of murder. Accused nos.6 and 8 were convicted for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code and each of them were sentenced to suffer life imprisonment and fine of Rs.1,000/- each, in default of payment, to suffer R.I. for one month. The original accused Nos. 1 to 5 and 7 were acquitted of all the charges levelled against them, i.e. Offence punishable under Section 302 r/w Section 149 and 148 of the Indian Penal Code and punishable under Section 135 of the Bombay Police Act. The original accused nos.6 and 8 were acquitted of the offence punishable under Section 148 of the IPC and also punishable under Section 135 of the Bombay Police Act. 4) Criminal Appeal No.483/2010 is preferred by Accused nos.6 and 8, challenging their conviction for the offence punishable under Section 302 r/w 34 of IPC. Criminal Appeal No.126/2011 is preferred by the State of Maharashtra, challenging the order of acquittal of accused nos.1 to 5 and 7 for all the offences under charge. 4 Cri.AppealNo.483/2010 with 126/2011 5) The case of the prosecution, in nutshell, can be narrated, as under, in order to have proper perspective of the matter and to appreciate the rival submissions. 6) The victim one Datta, was cultivating agricultural land belonging to one Nalegaonkar (PW 2), at village Kawatha, Tq. and District Jalna. The victim also had his own land, about five acres, situate near the land of Nalegaonkar. All the accused persons, since about a year prior to the incident of 23rd May 2009, were raising dispute that the victim should not cultivate the land of Nalegaonkar on Batai basis and apparently the victim and the accused were on cross-terms. There was also dispute regarding the said land between the accused and Nalegaonkar (PW 2). 7) On the fateful day, i.e. on 23rd May, 2009, in the morning at about 7:00 a.m., the victim Datta had been to his agricultural field. Subsequently, his father and his son went to the field by taking a Tiffin for the victim. By that time, apparently, Nalegaonkar (PW 2) was also present in his adjoining field. At about 9:00 a.m., when the victim 5 Cri.AppealNo.483/2010 with 126/2011 was in the field, doing some agricultural work, the accused persons gathered there and they started assaulting him with fist blows and kicks. Accused No.6 had a bamboo stick and he assaulted the victim by the said stick. Accused no.8 used a wooden implement, known as “Rumna” for assaulting the victim. The blows by means of the stick and wooden Rumna were given on the head and on the back of the victim by accused nos.6 and 8. The victim fell down on the wooden implement Rumna and blood was oozing from his nose. Allegedly, this incident of assault was witnessed by Nalegaonkar (PW 2) and son of the victim – Dyaneshwar, who is a young boy, aged about 13 years. They witnessed the incident from the distance of about 25-30 feet. After noticing the presence of the witnesses, the accused persons flee away from the spot. During the assault, the witnesses did not come forward or did not make any shout for help. After the assailants ran away, the victim was taken to his house by taking him in a bullock-cart by father of the victim and the witness – Nalegaonkar (PW No.2). The incident was narrated to wife of the victim, i.e. Smt. Sumanbai, who then lodged a complaint with 6 Cri.AppealNo.483/2010 with 126/2011 Maujpuri Police Station on the same day. It was taken down and registered by PW No.7 – Police Head Constable as F.I.R. (Exhibit-37). Apparently in the F.I.R., names of the accused persons were not mentioned. 8) During investigation, which was subsequently taken over by PW No.11 – PSI Ganpat Rahire, spot panchanama was prepared. On different dates, various accused persons were put under arrest. Clothes from the persons of the accused were seized under different panchanamas conducted from the dates 23rd May, 2009 till 28th May, 2009. Spot panchanama was conducted in presence of the panchas including PW NO.6. 9) Initially, injured, the victim was taken to the hospital. But, on the next day morning, he succumbed to the injuries, and as such, offence punishable under Section 302 of Indian Penal Code was inserted in the charge sheet. 10) Post mortem was conducted at General Hospital, at Jalna on dead body of the victim Datta. Clothes of the victim were taken 7 Cri.AppealNo.483/2010 with 126/2011 charge of. 11) Statements of the witnesses were recorded, including the alleged eye-witnesses, i.e. PW No.2 – Nalegaonkar and PW no.5 – Dnyaneshwar. 12) During the investigation, allegedly accused no.8 voluntarily made a statement to produce the bamboo stick, used in the commission of the alleged offence. It happened on 1st June, 2009 and in furtherance of the same, the bamboo stick was recovered under the panchanama. PW no.3 is one of the panch witnesses, who also acted as panch to the Inquest panchanama. 13) Seized articles, including the Bamboo stick and wooden Rumna, found on the spot and the clothes of the victim and the accused persons, were sent for chemical analysis and CA reports were obtained. On completion of the investigation, charge sheet was filed before the appropriate court. 14) During the arguments, it is pointed out by learned Counsel for the accused nos.6 and 8 in Criminal Appeal No.483 of 2010 that 8 Cri.AppealNo.483/2010 with 126/2011 substantive evidence of PW no.2 – Nalegaonkar and PW No.5 –Dnyaneshwar, cannot be accepted as trustworthy inasmuch as they had not given their statements to the police at the immediate proximity of the offence. 15) It is brought to our notice that statement of PW no.2 – Nalegaonkar was recorded on 25th May, 2009, i.e. two days after the alleged incident; whereas, statement of PW no.5 –Dnyaneshwar, son of the victim, was recorded on 24th May, 2009 on the next day. 16) It is further argued that substantive evidence of PW no.1 – Sumanbai, wife of the victim, is also required to be examined to find out whether she is a truthful witness who knew the names of the accused persons as assailants through her father in law. These points raised by the defence are dealt hereunder. 17) So far as PW No.1- Smt.Sumanbai is concerned, there are two omissions brought on record during her cross-examination, firstly that her son accompanied her father-in-law for taking Tiffin to the field for the victim. She 9 Cri.AppealNo.483/2010 with 126/2011 had deposed during the cross-examination that she did mention this fact to the police while giving her complaint. However, she cannot assign any reason as to how it was not so mentioned in her complaint. Secondly, she stated that she mentioned in her police complaint that she knew the names of the accused persons through her father-in-law, who had disclosed said names to her when the victim was brought to the house from the field. She also could not explain as to how this fact was not mentioned in her complaint. These omissions were proved by putting the questions to the Investigating Officer on behalf of the accused. Considering these omissions, which are of rather vital nature, it must be said that the presence of son of the victim on the spot is rendered doubtful. Moreover, the presence of the accused persons is rendered doubtful, in view of the second omission mentioned above and more so when father-in-law of PW No.1, i.e. father of the victim not examined by the police. 18) So far as evidentiary value of the substantive evidence of PW No.2 and PW No.5 is 10 Cri.AppealNo.483/2010 with 126/2011 concerned, it must be mentioned that though PW No.2 or father of the victim could have been the best witness to give F.I.R., it is given by the PW No.1, who is not an eye witness to the incident. The statements of alleged eye- witnesses are recorded belatedly though these witnesses were very much available to the investigation agency for recording their statements. 19) On the aspect referred to in the foregoing para, we are not oblivious of the fact that the truthfulness or otherwise of the witnesses depends on various circumstances apart from the circumstance as to on which date their statements were recorded by the police. 20) On these aspects, considering the omissions, which are vital to the case of the prosecution, appearing in substantive evidence of PW No.1, the first informant, and considering the status of PW no.2 – Nalegaonkar, being the owner of the land, which was being cultivated by the victim, and also considering the relation of PW No.5, being a tender age son of the victim, their 11 Cri.AppealNo.483/2010 with 126/2011 evidence is required to be construed strictly to ascertain whether it rule out the possibility of false implication. It is an admitted position that PW No.2 and PW No.5 allegedly witnessed the incident of assault from the distance of about 25-30 feet and none of them went ahead to rescue the victim when apparently the assault was only by use of bamboo stick, fist and kick blows. Even admittedly no shouts were raised by these eye- witnesses asking for the help to save the victim from the assault. 21) In our view, definitely these are the mitigating circumstances to the case of prosecution and in that event, the benefit must go in favour of the appellants/accused Nos.6 and 8. In that event, it must be said that the learned Trial Court had fallen in an error in accepting the testimony of PW Nos.2 and 5, more particularly on the admitted position of non-examination of father of the victim and the admitted position of the omissions from the statement of PW No.1. 22) Considering the above material and the effect of the substantive evidence of PW 12 Cri.AppealNo.483/2010 with 126/2011 No.2 and PW No.5, there is no merit in the appeal preferred by the State, being Criminal Appeal No.126/2011 against acquittal of the accused persons 1 to 5 and 7. More so, when only the alleged role given to other accused is that of remaining present on the spot and instigating the main accused for assaulting the victim. Even the names of all the other accused are not mentioned by the alleged eye- witnesses, much less mentioned in the F.I.R. 23) In view of the above, Criminal Appeal No.483/2010 preferred by the accused Nos.6 and 8 must succeed and the Criminal Appeal No. 126/2011 preferred by the State must fail. Hence, order. ORDER (1) Criminal Appeal No.483/2010 is allowed. The impugned judgment and order of conviction dated 26th November, 2010, passed by the learned Sessions Judge-2, Jalna, so far as conviction of the accused Nos.6 and 8 for the offence punishable under Section 302 r/w Section 34 of Indian Penal Code, is set aside. The accused Nos.6 and 8, if not required in any offence/matter, shall 13 Cri.AppealNo.483/2010 with 126/2011 be released from the jail. If fine amount is paid, it be refunded to them. (2) Criminal Appeal No.126/2011 stands dismissed. Sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr 18.8.11 Authentic copy (BD VADNERE,PS)