1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 730 OF 2010 STATE OF MAHARASHTRA VERSUS AJIT NAMDEO KUMBHAR & OTHERS ... Shri N.R.Shaikh, APP for the applicant and Shri B.R.Sontakke, Advocate for respondents 1,2,3,5 & 6. Respondent No.4 – Deleted. ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 27.7.2010 PER COURT :- 1. Heard respective counsel. 2. In Sessions Case No.105 of 2008, six accused were charged for the offences punishable under sections 147, 148 and 302 read with section 149 of Indian Penal Code (”IPC), however, since accused No.4 – Satish Murlidhar Dhumal was absconding he could not be tried along with rest of the accused. Initially, in the present application, accused No.4 Satish was also arrayed as respondent No.4, however, subsequently, at the request of learned APP, he came to be deleted. Deletion has been carried out on 5.7.2010. 2 3. The learned trial Judge, vide judgment and order dated 13.11.2009 acquitted the accused for the aforesaid offences. Against the said judgment and order of acquittal, present application seeking leave to appeal has been filed under Section 378(1)(b) of the Code of Criminal Procedure (“Cr.P.C.”). 4. Learned APP submits that the trial court has recorded perverse findings regarding homicidal death of deceased – Shankar. He took us through the judgment of the trial court and evidence of PW 1 Dr.Gaisamudre. This case is based on the evidence of three eye witnesses and their depositions before the Court have been read over to us. 5. Shri Sontakke, learned Advocate for respondents took us through paragraph No.27 of the judgment of the trial Court. He pointed out that the trial Court has considered the evidence of PW 2 Rahul and noticed the infirmities and discrepancies in his evidence and also opined that Rahul did not report the occurrence or filed the first information report to the police authorities before drawing inquest panchanama on the dead body of Shankar. The report lodged by Rahul on the same day at about 1805 Hrs. is commented upon by the learned trial Court. The trial Court has observed that such is an inordinate delay without proper explanation therefor. The trial Court, therefore, observed that evidence of Rahul lacks confidence to ascertain the role of assailants. (Emphasis supplied). 3 Shri Sontakke, learned Advocate thereafter, took us to paragraph No.28 of the judgment. He points out that mother of deceased Shankar, namely; Mandubai, has admitted in the evidence; that she stayed about 1/2 km. away from the spot of occurrence, that about 5 to 50 persons had gathered at the spot and that she had undergone a treatment for six months for mental illness at Yerawada hospital. Shri Sontakke, learned Advocate further pointed out paragraph No.29 of the judgment to us, wherein, the trial Court has observed that mother of Shankar might have consumed about 15 minutes to reach the spot of incident, when she got the knowledge of the occurrence at about 11.45 a.m. The learned trial Judge dis-believed the evidence of this lady for the reason that she did not lodge the report. Her statement was recorded by the Police Officer on 20.5.2008 i.e. on the next day of the incident. For these reasons, her testimony, according to the trial Court did not inspire confidence. Shri Sontakke, learned Advocate, thereafter, pointed out paragraph No.30 of the judgment. From this paragraph, he pointed out the observation of the trial Court that deceased was shifted to hospital by PW 4 Dinesh. He also took us to paragraph No.31 of the judgment of the trial Court, wherein, the learned Judge has considered the evidence of PW 2 Rahul. The learned Judge has recorded so called admissions given by PW 2 Rahul. We have seen these admissions. One of the admissions pertains to his status as a witness in a criminal case filed on the complaint of deceased Shankar against accused Ajit and Datta. Second is alleged 4 admission of non presence of one of the accused Babar Mirza and telling of the name of this accused while lodging the report. Third admission, according to learned counsel for the respondents given by this witness Rahul is pendency of eleven criminal cases against him at Kallam and Osmanabad. Three amongst them were of gambling. Rahul was prosecuted for the offence of rape in one criminal case. However, he was acquitted. Shri Sontakke, learned counsel, thereafter, pointed out observation of the trial Court regarding Sessions Case No.184 of 2004 (Exhibit 101). That being the different case, we are not elaborating thereupon. Shri Sontakke, learned Advocate, thereafter, took us to paragraph No.32 of the judgment of the trial Court, wherein, the learned Judge dis-believed the evidence of Rahul on the ground that some of the accused persons have been exonerated, name of Babar was falsely implicated and therefore, it has been opined that such witness can implicate anybody falsely. He also took us to paragraph No.33 of the judgment regarding discovery of weapon. It has been observed therein that discovery of stick / lathi was from the open place. The learned trial Judge did not accept this discovery in view of section 27 of the Indian Evidence Act. Shri Sontakke, learned Advocate also invited our attention to conclusions reached in paragraph No.35 of the judgment. 5 6. With the assistance of learned counsel appearing for parties, we have gone through the evidence of PW 1 Dr. Gaisamudre, PW 2 Rahul, Police Officers at Exhibits 10 and 12, Exhibit 47 and Exhibit 48. Indisputably, date of occurrence is 19.5.2008 and time alleged is 12 noon. According to learned counsel for the respondents, Medical Officer has given admission in the cross examination that death might have occurred at 9.00 a.m. and therefore, he submitted that this medical evidence of expert makes it clear that the occurrence of the incident is at 9 a.m., ocular evidence of the alleged eye witnesses PW2 Rahul, PW 4 Dinesh and mother of Shankar falsifies the evidence of Medical Officer. In substance, according to him, ocular evidence has contradicted the medical evidence. He further submitted that this evidence has been properly appreciated by the trial Court and there is no explanation for delayed first information report and the acquittal is justified. 7. We have given due consideration to the submissions of the parties. In our opinion, expert's evidence is for the assistance to the Court. The Court concerned has to appreciate oral and documentary evidence. Evidence of the expert alone cannot be picked up and separately appreciated. The Court has to take into account the oral, documentary and circumstantial evidence, as brought on record by the prosecution, as a whole. We are convinced that the case for grant of leave and admission of the appeal is established. 6 8. In the result; (A) Application is allowed in terms of prayer clause (C). We make it clear that leave to file appeal against respondents is granted by us. Registry is directed to register the appeal. (B) Since no separate appeal is filed, application is also allowed in terms of prayer clause (E), which reads; "This Criminal Application may be treated as appeal and may be heard." (C) We direct action under section 390 of Code of Criminal Procedure against the respondents. Respondents be released on PR bond of Rs.15,000/- (Rs. Fifteen Thousand each) each with one surety of like amount. Principal District and Sessions Judge, Osmanabad shall secure presence of respondents once in a quarter commencing from 1st August 2010. 9. The observations, which we have made in this order, are confined to grant of leave and admission of appeal. Appeal shall be heard on merits by this Court at an appropriate time. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl