1 CR.APPEAL NO.127/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 127 OF 1994 The State of Maharashtra. ...APPELLANT (Ori. Complainant) VERSUS 1 Sahebrao s/o Eknath Tupe age 48 years. 2 Sanju s/o Sahebrao Tupe age 22 years. 3 Chudabai w/o Sahebrao Tupe age 42 years. All r/o Pitthi, u/v. Nayagaon Tq. Patoda, Dist. Beed ...RESPONDENTS (Ori. accused) Shri V.D. Godbharale, APP for the appellant. Respondent Nos. 1 to 3 served – absent. ===== CORAM : A.H. JOSHI & A.R. JOSHI, JJ DATE :15th September, 2011 JUDGMENT : ( PER : A.H. JOSHI, J.) 1) The accused were charged for committing offences under sections 302, 336 read with 34 of Indian Penal Code in Sessions case No.72 of 1990. 2 CR.APPEAL NO.127/1994 2) They have been acquitted by learned Third Additional Sessions Judge, Beed, vide judgment and order dated 27/9/1993. 3) The prosecution story is as hereinafter : (a) The incident occurred on 30/4/1989 between 8:30 to 9:00 p.m. At Pitthi. (b) The complainant P.W.No.5 Ambu, the victim Shankar and accused all lived in the same locality. (c) On that fateful day, after dinner, Shankar came to the house of one Eknath S/O Nagu Tupe at about 8:00 to 8:30 p.m. and sat down in the courtyard. (d) At that time Ambu was inside his house. He saw accused Sahebrao armed with stick, his sons, namely, Sanju armed with sickle, Balu with stones and wife Chudabai also armed with stones, who were marching towards Shankar. 3 CR.APPEAL NO.127/1994 (e) On hearing the shouts of Shankar, Ambu rushed to him. Shankar, who was injured, was lying in a pool of blood. (f) Shankar succumbed to his injuries in Civil Hospital, Beed at about 4:00 a.m on 1/5/1989. 4) The prosecution has relied on 15 witnesses. P.W 5 Ambu, the complainant, P.W 6 Gopinath Tupe and P.W 7 Sheshrao Tupe are the eye witnesses to the incident. The documentary evidence relied upon is Inquest Panchanama Exh. 22, Memorandum statement of accused offering to give recovery of incriminating material Exh. 33, Seizure Panchanama Exh. 34 and Post Mortem Examination Report Exh. 56, among others, as sought to be proved by respective witnesses. 5) In the testimoney of Ambu, it is seen that the involvement of accused Sahebrao was not explicitly disclosed either to the Police Patil or to Patoda police, when they arrived at Pitthi. All that was said by this witness is that “there was beating in the village in which Shankar sustained injuries”. 4 CR.APPEAL NO.127/1994 6) The names of the accused appear in the complaint, however the complainant P.W. 5 Ambu himself is not sure whether the complaint was recorded in Civil Hospital, Beed, or at Patoda Police Station, as was claimed by P.W. 7 Sheshrao Tupe. 7) The prosecution story is based on use of stick, sickle, and stones as weapons of assault. It has relied on Exh. 33 and Exh. 34 to prove recovery of stick and sickle. 8) From the evidence of Panch witnesses P.W. 3 Wamnarao Misal and P.W.4 Karbhari Pathan, it appears that the incriminating material was shown to Panch witnesses by the Investigating Officer, beforehand. It appears that P.W. 3 is not sure as to who recovered the stick and sickle, whereas P.W. 4 has clearly disclosed that the same was shown to him by the Investigating Officer. 9) As to the incident, the eye witnesses have given the following version: 5 CR.APPEAL NO.127/1994 (a) Ambu has stated that the accused pelted stones towards him and so he ran towards the village shouting. Again he has said that after shouting “beaten beaten” 20 to 25 persons gathered on the spot, which is - self-contradictory. (b) P.W. 6 Gopinath has said that they shouted but nobody came, therefore, they went into the village. (c) Ambu has stated that the victim received two blows of stick on the head from accused Sahebrao and other accused gave blows of stones. (d) Gopinath has stated that blows of stones were given on the back, knee, head and chest. About 20 to 25 blows were given by holding stones in the hand. The incident was going on for half an hour. 10) Thus, the versions of eye witnesses do not corroborate each other. Therefore reliance cannot be placed on their versions. 11) The prosecution has failed to prove the manner in which the machinery of law was set into motion. This deals a fatal blow to the authenticity of the prosecution story. 12) There is complete failure to prove that the incriminating material was recovered in pursuance of statement of accused as per the requirement of section 27 of Indian Evidence Act. 6 CR.APPEAL NO.127/1994 13) It has, therefore, to be said that the prosecution case has failed to reach its logical conclusion and hence, the acquittal of accused was to be the only outcome. Therefore, the judgment under challenge is based on due and legal appreciation of evidence, and hence, the most plausible findings do not warrant any interference. 14) Hence, appeal is dismissed. Bail bonds, if any, stand cancelled. ( A.R. JOSHI ) ( A.H. JOSHI ) JUDGE JUDGE ...