1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTON CRIMINAL APPEAL NO.4 OF 1991 The State of Maharashtra .. Appellant V/s 1. Nagnath Dhula Irkar, Age 30, 2. Dhula Tulshiram Irkar,Age 50, 3. Mahadeo Dhula Irkar, Age 19, 4. Sadashiv Dhula Irkar, Age 19, 5. Bhimrao Datta Ghule, Age 38, 6. Babasaheb Dharma Tarange, Age 23, 7. Ramchandra Hariba Naikwadi, Age 23, 8. Gajendra Krishna Naikwadi, Age 25, 9. Arjun Dhula Irkar, Age 23, 10.Sou.Vatsala Nagnath Irkar, Age 25. Accused Nos.1 to 6 and 9 and 10 are residents of Papnus, Tal.Kurduwadi, Dist: Solapur & Accused Nos.7 & 8 are residents of Undargaon, Taluka-Madha, District Solapur. .. Respondents Mr.U.V.Kejriwal, APP for the State. None for the Respondents. CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE: 26th August, 2010. JUDGMENT: ( Per R.G.Ketkar, J.) 1. This appeal is preferred by the State of Maharashtra challenging the judgment and order dated 8th October, 1990 passed by learned IV Additional Sessions Judge, Solapur in Sessions Case No.103 of 1990. By that judgment, learned Sessions Judge acquitted Respondent Nos.1 2 to 10, hereinafter referred to as the Accused for the offences punishable u/s.147, 148, 149, 302, 323 & 504 Indian Penal Code, 1860 (for short IPC) and Section 135 of the Bombay Police Act. 2. The case of the prosecution is that the complainant PW4-Indrajeet Vitthal Irkar, resident of village Papnus lodged complaint in the police station at Kurduwadi at about 3.30 a.m on 19th March, 1990 alleging that he alongwith his parents and brothers Kuberdas, Datta, Bapu and their wives were residing together at vasti in their land. In all nine acres of land were cultivated by them. On 18th March, 1990 they hired plough belonging to PW16-Audumbar Bhanudas Thombre, resident of Wadshinge for ploughing their land. Since morning of 19th March, 1990 they were ploughing their land. At about 3 p.m Accused No.1-Nagnath, Accused No.2-Dhula and Accused No.10-Vatsalabai asked them why their bund were carved out. They also abused the complainant and others. 3. It is further case of the prosecution that complainant-PW4 Indrajeet had sold sheaves to one Budan Amin Qureshi of Papnus. He brought a tractor and trolly belonging to Accused No.6 Babasaheb. They took meal and started loading sheaves in the trolly. PW8-Kuberdas, brother of the complainant, was helping them. Vitthal, fathter of PW4-Indrajeet was near the trolly. At that time, Accused No.1-Nagnath, Accused No.2- Dhula, Accused No.3-Mahadeo and Accused No.10-Vatsalabai came 3 there and asked them as to why bund was broken. These accused started abusing. Accused No.10-Vatsalabai left and after sometime came alongwith Accused persons viz.Sadashiv, Bhimrao, Babasaheb, Ramchandra, Gajendra and Arjun, being Accused Nos.4, 5, 6, 7, 8 & 9 respectively. Accused No.6-Babasaheb, Accused No.9-Arjun, Accused No.4-Sadashiv, Accused No.7-Ramchandra and Accused No.8-Gajendra assaulted deceased Vitthal by sticks. Accused No.4-Sadashiv gave blow of axe on the head of deceased Vitthal and due to which he sustained injury and fell down. At that time, Acused No.1-Nagnath and Accused No.2-Dhula caught hold of PW4-Indrajeet and Accused No.9-Arjun gave stick blows on his head, back and leg and hand. Accused No.3- Mahadeo and Accused No.6-Babasaheb gave stick blows on the head and back of his brother PW8-Kuberdas and he sustained injuries. When his mother came to intervene, Accused No.10 Vatsalabai gave fist and kick blows to his brother, due to which he sustained injuries. 4. It is the case of the prosecution that deceased Vitthal died on the spot. PW4-Indrajeet and his brother PW8-Kuberdas went to their maternal uncle PW9-Laxman and narrated the incident, as also disclosed names of the accused. All these persons went to the vasti of Police Patil PW10- Madhukar Patil. They were asked by the police patil to go to the Mhaisgaon Railway Station and inform the police station by phone. When these persons went to Mhaisgaon Railway Station and requested 4 the station master to inform the incident to the police station on telephone, he refused. In view of this, PW4-Indrajeet and PW9- Laxman went to Kurduwadi police station by train and reached their at 2.30 a.m. Complaint was registered at 3.30 a.m on 19th March, 1990. 5. PW11-Subhash Walunjkar, PSO received complaint at Exh.40 and handed over said complaint to PW17-ASI Chavare for further investigation. After receipt of complaint, PW17 immediately went to the spot of incident and drew inquest panchanama of the dead body with the help of panchas. He also collected earth mixed with blood and then handed over the panchanama and the complaint to PW14-Chandrakant Dange, C.P.I. For further investigation. Dead body was sent to the Primary Health Centre, Kurduwadi for autopsy. Post mortem was carried out by PW13-Dr.Shraven Ghavane and he forwarded the post mortem notes to the police station, Kurduwadi. It is the case of the prosecution that at the instance of the accused, sticks and axes were recovered in the presence of the panchas. Clothes of the deceased and the articles recovered at the instance of accused were sent to chemical analysis. After receipt of the report of chemical analyser and after completing investigation, chargesheet was filed in the Court of Judicial Magistrate, First Class, Madha on 13th June, 1990. Since the offences alleged against the Accused were exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of 5 Sessions. 6. Charges U/s.147, 148, 149, 302, 323 and 504 IPC and u/s.135 of the Bombay Police Act were framed at Exh.2. Contents of the charge were read over and explained to the Accused in Marathi, to which they pleaded not guilty and their defence was of total denial. 7. It is the case of the Accused that they have not committed any offence but have been falsely implicated because of the party politics by PW9- Laxman and PW10-Madhukar Patil. In order to substantiate the charges levelled against the accused, the prosecution examined 17 witnesses and relied upon the post mortem report , medical certificates of the injured as also report of chemical analyser. After considering the material on record, learned Sessions Judge acquitted all the accused by the impugned judgment and order. It is against this judgment and order. the State has preferred the appeal. 8. We have heard Ms.Kejriwal, learned APP at length. With her assistance we have gone through the material on record. Before we consider the merits of the case, it would be worthwhile to note some of the facts which are not in dispute. The prosecution witnesses viz.PW1-Dattu Thombre, PW3-Dattu Borkar, PW9-Laxman and PW16-Audumbar Thombre are the close relatives of deceased Vitthal. Further the vastis of complainant PW4-Indrajeet and the accused are situate in the lands which are nearer to each other. It is the case of the prosecution that the 6 accused were members of unlawful assembly and they had a common object to commit murder of Vitthal. As per Section 141 IPC assembly of five or more persons is designated as unlawful assembly if the common object of these persons composing that assembly falls in any of the categories first to fifth of that section. The prosecution came out with the case that earlier Accused No.1-Nagnath, Accused No.2-Dhula, Accused No.10-Vatsalabai and Accused No.3-Mahadeo came near the trolly and abused PW4-Indrajeet and others. Later on Accused No.10- Vatsalabai left the spot and she came again alongwith Accused Nos.4 to 9. 9. It is the case of the prosecution that Accused No.4-Sadashiv gave an axe blow on the head of the deceased Vitthal and thereafter Accused No.6- Babasaheb, Accused No.9-Arjun, Accused No.7-Ramchandra and Accused No.8-Gajendra gave stick blows to the deceased. It was therefore submitted on behalf of the prosecution that there was motive behind committing murder of Vitthal and the accused in furtherance of their common object again went to the vasti of deceased Vitthal and assaulted PW4-Indrajeet, PW8-Kuberdas and their mother Kalawati and deceased Vitthal. From perusal of evidence of PW4-Indrajeet as also PW8-Kuberdas it is clear that they did not tell anything about the said incident either to PW10-Madhukar Patil or to the police at Kurduwadi police station. These witnesses deposed that complainant had hired a 7 plough of PW16-Audumbar and they were ploughing in Gat No.181. Statement of PW16-Audumbar was recorded by the Investigating Officer on 11th June, 1990. According to the Investigating Officer, PW16-Audumbar left village immediately on the next day of incident and his whereabouts were not known. Even the statement of the said witness was not submitted alongwith the chargesheet. Considering the evidence of these witnesses, it cannot be said that the prosecution has established satisfactorily the aspect of motive. It has come in the evidence of PW10-Madhukar Patil that he had filed a criminal case against Accused No.4-Sadashiv, Accused No.8-Gajendra and one Dharma in the Court of J.M.F.C.at Madha. Accused Nos.7 & 8 were residents of village Undargaon and they were servants of Accused No.6 Babasaheb. There is absolutely no evidence on record to show as to why the Accused No.7 Ramchandra & Accused No.8 Gajendra had an animus against the complainant and his brother and father. It has also come on record that vasti of Gena Gudekar is towards the southern side of complainant’s vasti and the thrashing of corn was going on at the time when incident took place. Apart from these, there are vastis of several other persons adjacent to the vasti of complainant. Though PW4- Indrajeet deposed that Accused Nos.1 to 3 and Accused No.10 were abusing them for about half an hour, before the occurrence none of the persons who were residing adjacent to the vasti of complainant came to 8 the spot while the incident was going on. PW8-Kuberdas deposed that he was helped by Ramchandra, Chhagan and Budan in loading sheaves when deceased Vitthal was standing near the trolly. Perusal of complaint at Exh.40 shows that their names were not mentioned as the persons who were present when the incident took place. 10.It has come on record that Accused No.6-Babasaheb contested election from Ward No.1 against Kirkanbai, who is brother’s wife of PW9- Laxman. PW2-Suleman who acted as panch witness of the spot of incident at Exh.22 and to the panchanama of recovery of articles at the spot at Exh.21, also deposed that his son contested election from Ward No.1 and was defeated in the said election. Accused No.6-Babasaheb was elected from the said ward and became Deputy Sarpanch. Considering the testimony of PW2-Suleman, PW9-Laxman and PW10- Madhukar Patil, they have reason to grind their axes against the accused, and therefore, the possibility of these witnesses falsely implicating the accused, cannot be ruled out. 11. The complainant PW4-Indrajeet and his brother PW8-Kuberdas are the eye witnesses, as also injured witnesses. As noted earlier, it is the case of the prosecution that Accused No.4-Sadashiv gave axe blow on the head of deceased Vitthal. The incident in question took place at about 11 p.m in the night. However, there is no evidence on record to show how these witnesses identified the accused and as to how the specific blows were 9 given by each of the accused to the deceased Vitthal. Perusal of testimony of PW4-Indrajeet and PW8-Kuberdas shows that there is no corroboration in their evidence as to who actually beat them and the deceased Vitthal. Perusal of testimony of PW13-Dr.Shravan at Exh.52 and the post mortem report at Exh.53 prepared by him, shows that he found nine injuries on the person of deceased Vitthal. Injury Nos.1 & 2 were CLW on the vertex region 6 cm x 2 cm x bone deep, and CLW on the right parietal region 4 cm x 2 cm x bone deep. Both the injuries were bone deep, margins were irregular and injuries were reddish in colour. Injury Nos.3 to 6 were abrasions and rest of the injuries were linear contusions of left chest and left scapula. He deposed that the cause of death was due to shock and hemorrhage due to injury to the vital organs like brain and injury to spleen. Ms.Kejriwal submitted that all the eye witnesses consistently deposed that it was Accused No.4-Sadashiv who gave axe blow on the head of the deceased. 12. Considering the evidence of these witnesses, learned Sessions Judge in paragraph No.16 of the judgment recorded that according to the prosecution, the incident took place at 11 p.m and there is absolutely no evidence on record to show as to how PW4-Indrajeet and PW8- Kuberdas identified the accused as also the specific blows given by each of the accused to them and to the deceased. He further observed that there was no corroboration in between the version of complainant PW4- 10 Indrajeet and his brother PW8-Kuberdas, as to who actually beat their father deceased Vitthal. After re-appreciating the evidence on record, we do not find that the said finding can be termed as a perverse finding. It is particularly when despite presence of several persons at the time of incident, the prosecution did not examine any independent witnesses. There is no consistency between the evidence of eye witnesses and the medical evidence. Considering the cumulative effect of all the circumstances, learned Sessions Judge acquitted the accused. 13. After re-appreciating the evidence on record, we are clearly of the opinion that the view expressed by the learned Sessions Judge is a reasonable and possible view. We do not find any material on record to take a different view. The findings recorded by learned Sessions Judge cannot be termed as perverse. 14. In the result, we find no merit in this appeal and the same is dismissed. (R.G.KETKAR, J.) (D.B.BHOSALE, J.)