Cri.Appeal No.72/1992 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.72 OF 1992 The State of Maharashtra ..APPELLANT (Orig.Complainant) VERSUS 1. Rajaram s/o Bhagaji Dhanwai, Age 25 years, Occu.Agri.. R/o Undangaon, Tq. Sillod, District Aurangabad 2. Kanhuba s/o Bhagaji Dhawal, Age 27 years, Occu.Agri., R/o As above 3. Gangaram s/o Bhagaji Dhanwal, Age 38 years, Occu.Agri., R/o As above 4. Krishan s/o Bhagaji Dhanwal, Age 35 years, Occu.Agri., R/o As above ..RESPONDENTS (Orig. Accused) Mr D.V.Tele, Assistant Public Prosecutor for appellant Mr Jayant Chitnis Advocate for respondents 1 to 4 - WITH - CRIMINAL REVISION APPLICATION NO.230 OF 1991 Genu s/o Maroti Dhanwai, Age 60 years, Occu.Agri., R/o Village Undangaon, ..PETITIONER VERSUS 1. Rajaram s/o Bhagaji Dhanwai, Age 25 years, Occu.Agri., R/o Village Undangaon, Taluka Sillod, Dist.Aurangabad Cri.Appeal No.72/1992 2 2. Kanhuba s/o Bhagaji Dhanwai, Age 27 years, Occu.Agri., R/o as above 3. Gangaram s/o Bhagaji Dhanwai, Age 35 years, Occu.Agri., r/o As above 4. Krishna s/o Bhagaji Dhanwai, Age 35 years, Occu.Agri., r/o As above 5. The State of Maharashtra through Ajantha Police Station, Taluka Sillod, District Aurangabad ..RESPONDENTS Mr B.V.Dhage, Advocate for petitioner Mr Jayant Chitnis, Advocate for respondents 1 to 4 Mr D.V.Tele, Assistant Public Prosecutor for respondent No.5 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 8th February 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. The State being aggrieved by the judgment of the IV Additional Sessions Judge, Aurangabad, dated 27.8.1991, in Sessions Case No.68 of 1991, acquitting the respondents of the offences punishable under Section 302, 307, 324, 325 read with sec.34 of the Indian Penal Code, has filed the present appeal questioning the correctness of the judgment of acquittal. The complainant being aggrieved by the acquittal has also filed Criminal Revision Application No.230 of 1991. By virtue of an Cri.Appeal No.72/1992 3 order passed by the Division Bench of this Court, the revision was directed to be heard along with the appeal. Since both these matters arise from the same judgment of the trial Court, both these matters are decided by this common judgment. 2. Such of the facts as are necessary for the decision of these matters may briefly be stated thus. On the basis of the report lodged by P.W.2 Ganu at Exh.12, the concerned Police Officers registered an offence. It appears that inquest panchnama at Exh.15 came to be drawn of the dead body of deceased Vitthal. The dead body of deceased Vitthal was referred for post mortem examination and post mortem came to be conducted by P.W.8 Dr.Kuril, who noticed the following external injuries: 1. Contused lacerated wound, 3 x 1”, on occipital region of scalp bone deep; 2. C.L.W. 1” x 1/4” with heamotoma, right upper arm at lower third; 3. C.L.W. over forehead on right side size 1” x 1/2” 4. Bleeding through nose. Cri.Appeal No.72/1992 4 Immediately after completion of the examination, deceased Vitthal succumbed to his injuries. On internal examination during post mortem, it was found that there was haematoma on left temporal region under the scalp and fracture of the occipital bone. There was profuse subdural haematoma over both hemisphere of brain., Cerebral contusion at the post aspect of both hemisphere. P.W.8 Dr.Kuril, therefore, opined that cause of death was head injury. The post mortem report is at Exh.26. The injured also came to be examined by P.W.8 Dr.Kuril. He had examined P.W.2 Ganu and had noticed the following injuries on the person of P.W.2 Ganu: 1. Clean lacerated wound on left occipital region of the scalp, size 1 1/2” x 1/2” vertically placed with haematoma; 2. Fracture right humerals with punctured wound at the right upper arm, size 1/4”x1/4” at lower third on outer aspect with haematoma P.W.8 Dr.Kuril had accordingly issued the certificate which is at Exh.28. He also examined P.W.3 Saibai and had noticed the following injuries : Cri.Appeal No.72/1992 5 1. C.L.W. right occipital parietal region of the scalp size 2” x 1/2” bone deep, bleeding fresh; 2. Contusion, left gluteus region, size 2” x 1” 3. Skin abrasion and contusion over left lower leg at lower third in front size 1” x 1”; He accordingly issued the certificate at Exh.29. P.W.8 Dr.Kuril also examined P.W.18 Ramdas and noticed the following injuries : 1. Clean lacerated wound size 1” horizontally Placed over the nose with fracture bone 2. Clean lacerated wound size 1/4” x 1/2” on the left side of the cheek. 3. Clean lacerated wound size 1” x 1” on the left mastered region. 4. Punctured wound left upper arm at lower third on post aspect size 1/4” x 1/4” with fracture humerus left. The certificate in respect of the injuries sustained by Ramdas is at Exh.30. On examination of P.W.17 Raibhan the following injuries were noticed by P.W.8 Dr.Kuril. Cri.Appeal No.72/1992 6 1. There was bleeding through nose; 2. Clean lacerated wound lateral side of the left upper lid, size 1” x 1/2” vertically placed; 3. He had haemostasis multiple; 4. Contusion each of about 4” x 1” obliquely placed over thoracic and lumber region (5 in numbers) The certificate in respect of Raibhan is at Exh.31. P.W.5 Dr.Sapkal, it appears had examined P.W.6 Babu and upon examination he had noticed the following injuries on his person. 1. Abrasion over left eye, left side, size 3 1/2” x 2 1/2” caused within 14 hrs., grievous in nature caused by probably by lathi; 2. Abrasion over right side of nose, size 3” x 1/4” probable weapon lathi, caused within 14 hrs., simple in nature. The certificate in respect of Babu is at Exh.22. 3. The accused came to be arrested and during custodial interrogation on the basis of the discovery memorandum at Exh. 35 stick came to be seized vide panchnama at Exh.36. During custodial interrogation, from accused Rajaram stick came to be Cri.Appeal No.72/1992 7 seized vide memorandum at Exh.39 and the panchnama at Exh. 39. The clothes of the injured came to be seized vide seizure memo at Exh.41 in the presence of P.W.12 Bhimrao. Further to the completion of investigation a charge-sheet against the accused came to be filed. 4. It appears that on committal of the case to Court of Sessions, trial Court vide Exh.3 framed charge against the respondents/accused for offences punishable under Section 302, 307, 324, 325 read with Sec.34 of the Indian Penal Code. The accused pleaded their innocence and claimed to be tried. Prosecution in support of its case examined 19 witnesses. The entire prosecution case revolved round the evidence of the injured witnesses namely P.W.2 Ganu, P.W.3 Saibai, P.W.17 Raibhan and P.W.18 Ramdas. P.W.6 Babu was declared hostile and did not support the prosecution and, therefore, the prosecution could not derive any assistance from the evidence of P.W.6 Babu. 5. In order to appreciate the submissions advanced before us by the learned Counsel for the parties, it would be useful to preferentially refer to the evidence of the injured witnesses. According to P.W.2 Ganu the accused are his relatives. He has admitted about a dispute pending between him and the accused Cri.Appeal No.72/1992 8 in respect of possession of the agricultural land. In respect of the incident P.W.2 Ganu states that he was present in the house along with the other family members while his son P.W.17 Raibhan had gone to watch the race of bullocks which is known as “Shankarpat”. He states that while they were about to retire firstly they heard some shouting and subsequently P.W.15 Tanhu came to their house and informed them that, “quarrel had started”. Ganu then states that he along with his wife P.W.3 Saibai came out from their house and went to the scene of the offence and noticed the accused assaulting Raibhan with stick. Ganu states that he intervened in the quarrel and requested the accused not to assault his son. Thereupon the accused also assaulted him and injuries by sticks were dealt on his right leg and on his head. He states that the accused also assaulted his wife. He further states that his son Ramdas and Vitthal then came to the scene of the offence and they too were assaulted by the accused. He states that his son in law Nana thereafter brought a bullock-cart and took them to the hospital. Vitthal expired and, therefore, complaint at Exh.12 came to be lodged. In cross- examination omission has been proved that he had not stated in his previous statement that the accused had assaulted him on his right hand and on his right leg. Curiously, this witness does not state as to which accused assaulted him. Cri.Appeal No.72/1992 9 6. Prosecution has examined P.W.3 Saibai, wife of P.W.2 Ganu and mother of deceased Vitthal. She also states that they heard noise and, therefore, went on the road. She states that she was accompanied by her husband. The accused were assaulting Raibhan and thereafter they assaulted P.W.2 Ganu. The accused Kanhu assaulted on her head. Saibai states that on receiving the blow she fell on the ground and thereafter also assaulted on her leg. She had sustained the bleeding injury and in the meanwhile Vitthal and Ramdas arrived their and the accused also assaulted them. Thereafter her son-in-law Nana carried them to the hospital in a bullock-cart. In cross-examination she admitted that the incident took place at about 10.00 to 11.00 in the night. She admitted that Tanhu came to her house and informed her that a quarrel had started. She states that when she had gone to the scene of the offence Raibhan was lying on the and as soon as she received blow on her head she feel on the ground unconscious. She states that subsequently her husband was assaulted. She has admitted that there was no light at the scene of the incident. 7. Injured Raibhan, P.W.17, who is examined states that he had gone to witness the race of the bullocks and after the race was over the accounts were required to be settled and after settling the accounts he came to his land and on the way he met Walya. Walya had told him that Raju and Babu were also coming Cri.Appeal No.72/1992 10 with them and they should wait for some time. Accused Rajaram and Krishna also accompanied them. According to Raibhan accused Rajaram abused and insulted them and thereafter went to their house. Subsequently, Raibhan and others started going home and all the accused were noticed sitting by the side of the road. All of a sudden they crossed the road and started assaulting Raibhan with stick. Raibhan states that they had also assaulted Babu. The persons, who had accompanied Raibhan fled from the scene. He states that he fell on the ground and was rendered unconscious and regained consciousness after four days. In cross-examination he has admitted that while he was being assaulted no one was present there. He has admitted that the incident of assault lasted for about ten minutes. Curiously, this witness does not refer to the presence of P.W.2 Ganu and P.W.3 Saibai or for that matter P.W.18 Ramdas. The evidence of P.W.2 Ganu and P.W.3 Saibai is to the effect that when they reached to the scene of the incident they had noticed that P.W.17 Raibhan was being assaulted. Raibhan does not make reference to the presence of either Ramdas or Vitthal. 8. P.W.18 Ramdas states that one Tanhu i.e. P.W.15 had come to their house and had informed him that accused were assaulting Raibhan. He accordingly had gone to the scene of the offence and had seen Raibhan was being assaulted by the accused. Cri.Appeal No.72/1992 11 Ramdas states that he enquired with the accused as to why they were assaulting Raibhan. Thereupon accused Rajaram and Kanhu assaulted Ramdas on his head with stick. He states that he sustained a bleeding injury and fell on the ground unconscious. He states that he regained consciousness on the next day in the hospital. In cross-examination he has stated that when he had gone t the scene of the offence Raibhan was lying on the ground and was being assaulted. He has stated that in his presence Raibhan had received at least 10 to 15 stick blows. He later on admits that he had regained consciousness on the spot itself. 9. A perusal of the evidence of these injured eye witnesses reveal that there is variance in respect of their testimony. P.W.2 Ganu and P.W.3 Saibai state about assault on Raibhan, Ramdas and Vitthal in their presence. P.W.17 Raibhan and P.W.18 Ramdas do not make reference to the presence of P.W.2 Ganu or P.W.3 Saibai at all. In fact, P.W.17 Raibhan does not refer to the presence of P.W.2 Ganu, P.W.3 Saibai or P.W.18 Ramdas. Neither Ramdas nor Raibhan refer to the presence of Vitthal. According to P.W.2 Ganu, Vitthal and Ramdas had arrived at the scene simultaneously. In fact, P.W.2 Ganu stated that Tanhu had informed him about the incident and he had immediately rushed out of the house, while P.W.18 Ramdas states that Tanhu had informed him that Raibhan was being assaulted. Cri.Appeal No.72/1992 12 10. In the light of these variances and these infirmities in the evidence of the injured witnesses, the trial Court chose not to place any reliance on them though they were injured witnesses. We have ourselves perused the evidence of these injured witnesses and we find that the view taken by the trial Court is a possible view to be taken on the basis of evidence on record. The recovery of the sticks at the behest of the accused by itself is no evidence against the accused unless and until the nexus is established between the sticks and the commission of the offence. The sticks were not found stained with human blood and consequently, the recovery by itself is of no consequence. 11. With the assistance of the learned Counsel for the parties we have perused the evidence on record and in the light of the infirmities adverted to above, according to us the view taken by the trial Court of not placing reliance on the evidence of the eye witnesses appears to be a correct view and a possible view. We do not notice any perversity in the reasoning of the trial Court to warrant any interference in this appeal against acquittal. In that light of the matter, therefore, the appeal filed by the State and the revision filed by the complaint deserve to be dismissed. Cri.Appeal No.72/1992 13 12. Accordingly, Criminal Appeal No.72 of 1992 and Criminal Revision Application No.230 of 1991 are dismissed confirming the acquittal of the respondents-accused. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/72.92criapeal)