1 Cri.AppealNo.328/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.328 OF 1994 The State of Maharashtra = APPELLANT VERSUS 1) Jagannath s/o Asaram Barahate, Age: 40 Yrs. 2) Pandharinath s/o Asaram Barahate, Age: 30 Yrs. 3) Kailas s/o Rambhau Barahate Age: Major. 4) Rambhau s/o Asaram Barahate Age: 45 Yrs. All R/o Pimpri, Tq. Gangapur, District Aurangabad. = RESPONDENTS Mr. NB Patil, APP for Appellant/State Mr.SB Jadhav, Adv. h/for Mr. RN Dhorde, Advocate for Respondent Nos. 1 to 4; ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 29th September, 2011. ORAL JUDGMENT (PER :A.R.JOSHI,J.) 1) Heard rival submissions on the present Criminal appeal preferred by State of Maharashtra, challenging the judgment and order of acquittal dated 30th June, 1994 passed by 2 Cri.AppealNo.328/1994 Additional Sessions Judge, Aurangabad in Sessions Case No.291/1993. 2) By the impugned judgment and order, all the four accused were acquitted of the offences punishable under Sections 302, 307, 323 r/w Section 34 of the Indian Penal Code. 3) The case of the prosecution, in nutshell, is as under, - (i) There was some dispute over agricultural boundary between the family of the deceased and accused persons and on that count, there were strained relations and deceased Rangnath had filed a complaint, in which, present accused No.1 was once arrested by the police. Due to such strained relations, there was enmity between the parties. (ii) On the fateful day, i.e. on 10th August, 1993, in the morning, deceased Rangnath had been to his agricultural field. After some time, he was followed by his one son by name – Sanjay - PW No.15 and his daughter-in-law, wife of Sanjay, one Smt. Mandabai – PW No.1. That time, all the four accused were in the adjoining field belonged to them and they entered the field of the victim. Accused Nos.1 and 2 were having axes, accused No. 3 Cri.AppealNo.328/1994 3 was having sickle whereas accused No.4 was having a wooden stick. (iii) The accused persons assaulted the victim Rangnath by means of axes, sickle and wooden stick causing severe injuries, which resulted in his subsequent death. Said assault was witnessed by PW No.15 – Sanjay and PW No.1 – Mandabai. PW No.15 immediately rushed back to the village to inform his brother PW no.16 – Mohan. Both the brothers came back to the spot and allegedly witnessed the assault on their father Rangnath. PW No.16 was also assaulted by all the four accused with the weapons they were having. PW No.15 was also beaten by the accused. So also, his wife Mandabai PW No.1 was also beaten when she shouted for help. (iv) PW No.1 – Mandabai went to the village and narrated the incident to other villagers including PW No.3 and PW No.7. Thereafter, she went to Gangapur police Station and lodged the complaint, which was recorded by PSI Patil, PW No.19. Said complaint is F.I.R. - Exhibit-13. (v) Initially, injured Rangnath and his injured sons PW Nos.15 and 16 were taken to Government Hospital at Gangapur and initial treatment was given. But, sensing the injuries 4 Cri.AppealNo.328/1994 to the victim to be grievous, he was removed to Government Medical Hospital, Aurangabad, where he was declared dead at 9.30 p.m. on that night. (vi) PW Nos. 15 and 16 were also treated for the injuries. (vii) PW No.19 – Investigating Officer visited the spot of occurrence on registration of the crime. According to the police, when accused persons were put under arrest, on knowing their names through the complainant PW No.1 – Mandabai, accused No.2 voluntarily produced two axes and one stick at Gangapur police station. Accordingly, seizure panchanama (Exhibit-37) was drawn. (viii) Subsequently, during the course of investigation, accused no.4 made a voluntary statement to produce a stick and it was accordingly recovered under the panchanama. (ix) On completion of the investigation and sending the seized articles to the Chemical Analyser and obtaining CA reports and also the post mortem report and injury certificate, charge sheet was filed before the concerned Court against all the four accused. 5 Cri.AppealNo.328/1994 4) During the trial, total 19 witnesses were examined and finding mainly the evidence of eye-witnesses not trustworthy, the judgment and order of acquittal was pronounced by the learned Additional Sessions Judge. 5) The Court had mainly disbelieved the testimonies of eye-witnesses – PW Nos.1, 15 and 16. Admittedly, other alleged eye-witnesses - PW Nos.12 and 14 did not support the case of the prosecution. 6) What weighed with the learned Sessions Judge is, untrustworthiness of the complainant and two sons of the victim. It was on the basis of the variance, in their substantive evidence interse. Various other points, including such variance in the substantive evidence, weighed with the learned Sessions Judge are narrated as under, - (1) Variance in the evidence of PW Nos.1 and 15 as to out of PW Nos.15 and 16, who was assaulted first. According to PW No.1, PW No. 15 was assaulted first and then on arrival of PW No.16 he was also assaulted, whereas according to PW No.15, initially when he witnessed the incident of assault, he immediately rushed back to the village and 6 Cri.AppealNo.328/1994 informed his brother PW No.16 and when both of them came back to the spot, they were assaulted. (2) According to PW Nos.15 and 16, they became unconscious after receiving the assault on the spot. But, as per the medical evidence of the attending doctor, they were conscious when admitted in the hospital. (3) Though apparently FIR was immediately lodged by PW No.1 Mandabai, copy of it was sent to JMFC court only after three days, i.e. on 13th August, 1993 and significantly enough on that day, the statements of PW Nos. 15 and 16 were recorded though allegedly they were the injured eye-witnesses to the incident of assault. (4) The contents of FIR are doubtful inasmuch oral testimony given by PW No.1. (5) Apparently, there was no contra cup injury to PW Nos.15 and 16. Thus, doubting the injuries by impact on their heads by butt of the axe, more so, when Medical officer opined that injuries to PW Nos.15 and 16 were possible by fall on the rough surface. (6) Recovery of two axes and one stick, 7 Cri.AppealNo.328/1994 allegedly produced by Accused No.2 in the police station, is held to be doubtful inasmuch as there was no any memorandum to that effect. (7) Panch witness, who allegedly acted during the preparation of the memorandum and recovery of the wooden stick at the instance of the accused No.4, turned hostile and did not support the case of the prosecution. 7) We have seen that the learned Sessions Judge had doubted the case of the prosecution as to the assault on the victim and PW Nos.15 and 16 at the hands of the accused persons. The learned Sessions Judge also accepted the defences of the accused persons as of total denial and specific defence of accused No.2 that he himself was assaulted by PW Nos.15 and 16 when he was in his agricultural field and in defending the assault when he pushed these assailants, they fell on the ground and sustained some injuries. These defences of accused persons were accepted by the learned Sessions Judge on preponderance of probabilities. 8) Considering the substantive evidence of main eye-witnesses – i.e. PW Nos. 1, 15 and 16 and considering that they are close relatives of 8 Cri.AppealNo.328/1994 the deceased Rangnath and still considering that the independent eye-witness did not support the case of the prosecution, in our considered view, the conclusion arrived at by the learned Sessions Judge cannot be termed as erroneous. This is more so, considering the scope of this Court in dealing with appeal against acquittal and that also after lapse of about 17 years. 9) Considering the merit of the substantive evidence of eye-witnesses in the light of the discrepancies pointed out and detailed above, we are not inclined to come to a different conclusion than which has been arrived at by the learned Sessions Judge. 10) In the result, there is no merit in the present appeal preferred by the State of Maharashtra and the same is disposed of with following order. ORDER Criminal Appeal No.328 of 1994 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.17.10.11