Cri.Appeal No253/1994 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 253 OF 1994 The State of Maharashtra ..Appellant (Orig.Complainant) VERSUS 1. Ashru s/o Dulba Salve, Age 50 years, Occu.Agriculture, R/o Devi Nimgaon, Taluka Ashti District Beed (2) Babasaheb s/o Dulba Salve, |Appeal as against Age 45 years, Occu.and R/o |R.No.2 dismissed As above |as per Court’s order |dated 12.9.1996 3. Ramesh s/o Ashru Salve, Age 32 years, Occu. and R/o As above 4. Rohidas s/o Ashru Salve, Age 25 years, Occu. and R/o As above ..Respondents (Original accused) Mr N.H.Borade, Assistant Public Prosecutor for appellant Mr Bhushan Kulkarni, Advocate for respondents 1, 3 and 4 Appeal dismissed as against respondent No.2 as per Court’s order dated 12.9.1996 - WITH - CRIMINAL REVISION APPLICATION NO.180 OF 1994 Rambhau s/o Bhagwan Salve Age 45 years, Occu.Agriculture R/o Devi Nimgaon, Taluka Ashti, District Beed ..Applicant (Orig. Complainant) Versus Cri.Appeal No253/1994 2 1. Ashru s/o Dulba Salve, Age 50 years, Occu.Agriculture, R/o Devi Nimgaon, Taluka Ashti District Beed (2) Babasaheb s/o Dulba Salve, |Appeal as against Age 45 years, Occu.and R/o |R.No.2 dismissed As above |as per Court’s order |dated 12.9.1996 in |Cri.Appeal 253/94 3. Ramesh s/o Ashru Salve, Age 32 years, Occu. and R/o As above 4. Rohidas s/o Ashru Salve, Age 25 years, Occu. and R/o As above (Orig. accused 1 to 4) 5. The State of Maharashtra ..Respondents Mr A.R.Khan, Advocate for applicant – absent Mr Bhushan Kulkarni, Advocate for respondents 1, 3 and 4 Mr N.H.Borade, Assistant Public Prosecutor for respondent No.5 Appeal as against R.No.2 dismissed as per Court’s order dated 12.9.1996 in Cri.Appeal No.253 of 1994 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 10th January 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Criminal Appeal No.253 of 1994 has been filed by the State challenging the judgment of the 2nd Additional Sessions Judge, Beed, dated 22.2.1994, in Sessions Case No.70/1993, acquitting the respondents of offence punishable under sections 302, 342 read with sec.34 of the Indian Penal Code. Criminal Revision Cri.Appeal No253/1994 3 Application No.180 of 1994 has been filed by the complainant also questioning the acquittal of the respondents. Since the Criminal Revision Application and the Appeal arise from the same judgment, both these matters are being decided by this common judgment. 2. Facts in brief as are necessary for the decision of these matters are stated as under. P.W.9 Subhash Pable, Police Head Constable attached to Police Station, Ambhora recorded the complaint of P.W.2 Rambhau at Exh.17. On the basis of the said complaint at Exh. 17, he registered offence vide Crime No.83/1992. The case diary of the crime was handed over to one Head Constable Chavan for investigation. P.W.10 P.S.I. Raut who was attached to the Police Station, Ambhora received the case diary from Head Constable Chavan on 13.9.1992. On 13.9.1992 one Police Patil of village Devi Nimgaon had submitted a report about death of deceased Bhagwan at Exh.30. Accordingly, Section 302 of Indian Penal Code came to be added. P.W.10 P.S.I. Raut proceeded to the scene of the offence and recorded the supplementary statement of P.W.2 Rambhau. Injured Bhagwan had been initially examined by P.W.11 Dr.Golhar, who had noticed the following external injury: Cri.Appeal No253/1994 4 C.L.W. right side of head extending from forehead right parietal region, vertical size 7.5 cm x 1 cm x 1 cm clinically evidence of fracture on right frontal and right parietal. He opined that the injury was possible by hard and blunt object like stone. He accordingly issued the injury certificate at Exh.39. Subsequent to death of Bhagwan, post mortem examination came to be conducted and as per the post mortem report at Exh.41, the Medical Officer opined that cause of death was shock due to sub-arachnoid hemorrhage. Statements of witnesses came to be recorded and the seized property was referred to the Chemical Analyzer along with the requisition. The report of the Chemical Analyzer is at Exh.34. The quilt, pillow and a piece of cloth were found stained with blood of “B” group while the blood group on the other clothes could not be determined. 3. Prosecution has examined P.W.2 Rambhau, son of deceased Bhagwan, who states that since 1968 he was working as a Home Guard and resides in the agricultural field known as “Kuran” towards the northern side of village Devi Nimgaon. He further states that the respondents-accused are his cousins and there is a pending civil litigation between him and the accused. He states that when he was on duty as a Home Guard, his son Madhukar and his brother Ashru came at about 1.30 a.m. and informed him Cri.Appeal No253/1994 5 that Bhagwan had been assaulted with a stone on his head. It further disclosed that accused 1 to 4 had assaulted Bhagwan with stone on his head. He accordingly rushed to the scene of offence and noticed his father lying unconscious in a cattle shed. A stone was seen lying near the head of injured Bhagwan. Injured Bhagwan was brought in a jeep and thereafter was taken to a hospital at Kada. The Medical Officer on duty informed him that the Police should be informed and accordingly P.W.2 Rambhau went to the Police Station and lodged his report. Injured Bhagwan was thereafter referred to the Government Hospital at Ahmednagar. From Ahmednagar injured Bhagwan was referred to the Sasoon Hospital at Pune. Injured Bhagwan succumbed to his injuries at the Sasoon Hospital on 11.9.1992. In cross- examination he has admitted about pendency of civil litigation between the parties. He has also admitted that he along with his brother Ashru had been accompanied for having burnt the house of the accused. He has admitted not to have mentioned the names of the assailants in an application submitted by him at Exh.18. He has admitted to have stated in his report the names of the accused as assailants but could not explain as to why it was not referred in his report. Perusal of the first information report at Exh.17 clearly indicates that Madhukar and Ashru had not informed him the names of the assailants. In fact, in the first information report it was stated that some unknown persons were Cri.Appeal No253/1994 6 seen running towards the cattle shed of the accused. In the first information report only suspicion was expressed that the accused might have committed murder of deceased Bhagwan. 4. P.W.3 Malanbai states that she was awakened in the night on hearing the cry of deceased Bhagwan. She states that her son Subhash also was awakened and tried to open the door but the door could not be opened as it was latched from outside. Subhash thereafter opened the door by inserting his hand in the gap of the planks. She states that she asked Subhash as to what had happened and Subhash informed her that he saw all the accused running away after assaulting deceased with a stone on his head. Malanbai also states that she saw the accused running in the illumination of the flash light. In cross-examination omission has been duly proved that she had not stated in her statement recorded during investigation that she along with Salanbai, Sanjay and others had seen the accused running in the illumination of the flash light. Similarly, P.W.4 Sanjay also states to have seen the accused running in the illumination of the flash light. In cross-examination he has admitted that his statement was recorded after three days and omission has been duly proved that he had not stated that he had seen the accused running away in the illumination of the flash light. Cri.Appeal No253/1994 7 5. P.W.6 Subhash also states about seeing the accused running in the illumination of the flash light. In cross-examination omission has been duly proved that he had not stated in his previous statement about seeing the accused coming out of the cattle shed and running away. P.W.7 Sunita also states to have seen the accused from a distance of 10 feet running towards their house. She claims to have identified all the accused in the illumination of the flash light. In cross-examination omission has been duly proved that she had not stated that she had seen all the accused from a distance of 10 feet. Omission has been duly proved that she had not stated that the accused had assaulted Bhagwan by a stone on his head. P.W.8 Madhukar also claims to have seen all the accused running in the illumination of the flash light. Omission has been duly proved that he had not stated in his previous statement to have seen all the accused running in the illumination of the flash light. 6. Thus, the claim of the witnesses to have seen the accused in the illumination of the flash light running towards their house has been proved as omission. There is, therefore, no cogent and reliable evidence whatsoever to connect the accused with the commission of the offence. The previous litigation may at most raise a suspicion against the accused but suspicion howsoever strong cannot be a substitute for proof. With the assistance of the Cri.Appeal No253/1994 8 learned Assistant Public Prosecutor and Mr Bhushan Kulkarni, learned Counsel for the respondents, we have perused the findings recorded by the trial Court and we have also perused the evidence. The view taken by the trial Court appears to us to be a possible view to be taken on the basis of evidence on record. We have not noticed any perversity whatsoever in the reasoning of the trial Court to justify any interference in this appeal against acquittal. 7. Consequently, this appeal fails and is accordingly dismissed confirming the acquittal of the respondents. Their bail bonds stand cancelled. Since we have dismissed the appeal, we find no merit in the Criminal Revision Application and the Criminal Revision Application is also dismissed. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/253.94criapeal)