- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMIINAL APPEALS NOS.777/2005 & 34/2006 CRIMINAL APPEAL NO.777/2005 1] Shrikrishna s/o Digambar @ Ramesh Lashkare, age 26 yrs., occu.nil r/o Jalkot Tq.Tuljapur Dist.Osmanabad. 2] Sudam s/o Digambar @ Ramesh Lashkare, age 24 yrs., occu.nil r/o as above. 3] Fulabai w/o Digambar @ Ramesh Lashkare, age 45 yrs., occu.nil r/o Manmodi Post Murta Tq.Tuljapur Dist.Osmanabad. 4] Nagnath Bhimrao Survase, age 73 yrs., occu.nil r/o as above. ...Appellants.. (Org.accused) Versus The State of Maharashtra, through Police Station Officer, Police Station, Naldurg. Tq.Tuljapur Dist.Osmanabad. ...Respondent... ..... Shri V.D. Sapkal, Advocate h/f Shri P.S. Chavan, Advocate for appellants. Shri B.V. Wagh, APP for respondent. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= - 2 - CRIMINAL APPEAL NO.34/2006 The State of Maharashtra, (through Naldurg Police Station, Osmanabad). ..Appellant.. (Org.complainant) Versus 1] Shrikrishna s/o Digambar @ Ramesh Lashkare, age 23 yrs., r/o Jalkot Tq.Tuljapur Dist.Osmanabad. 2] Sudam s/o Digambar @ Ramesh Lashkare, age 21 yrs., r/o as above. 3] Fulabai w/o Digambar @ Ramesh Lashkare, age 42 yrs.,l r/o as above. Tq.Tuljapur Dist.Osmanabad. 4] Nagnath Bhimrao Survase, age 70 yrs., r/o Manmodi, Post Murta Tq.Tuljapur Dist.Osmanabad. ...Respondents.. (Org.accused) ..... Shri B.V. Wagh, APP for appellant. Shri V.D. Sapkal, Advocate h/f Shri P.S. Chavan, Advocate for respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 30.08.2010 - 3 - ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] Criminal Appeal No.777/2005 has been filed by the appellants, who stand convicted for an offence punishable u/s 341 r/w 34 of the Indian Penal Code and sentenced to simple imprisonment for 15 days and u/s 326 r/w 34 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and to pay fine of Rs.1,000/- in default of which to undergo further simple imprisonment for 10 days. 2] Criminal Appeal No.34/2006 has been filed by the State challenging the acquittal of the respondents – accused for offence punishable u/ss. 302 r/w 34 and 201 r/w 34 of the Indian Penal Code. Since both the appeals arise from the same judgment of the trial Court, both these appeals are being decided by this common judgment. 3] Such of the facts as are necessary for the decision of these appeals may briefly be stated thus: PW 5 Police Head Constable Maruti Aware, who was attached to Sadar Bazar Police Station, was directed by the Police Station Officer on 13.12.2001 to record the statement of injured Digambar, who had been admitted in Ashwin Hospital. He accordingly contacted PW 9 Dr.Ravindra in order to ascertain the condition of the injured. Initially, the medical officer opined that the injured was not in a fit condition to give his statement and, therefore, he had gone to Ashwin - 4 - Hospital again at about 8-00 p.m. for recording the statement of Digambar. He contacted the medical officer, who informed him that the injured was in a position to give his statement. He states that accordingly he recorded the statement of injured Digambar, who stated that on 12.12.2001 at about 7-00 p.m., he had returned from his land and at that time, his wife, his two sons and his father in law were present and they had asked him to stop the illicit relations with one Sonabai, a resident of his village. Digambar accordingly informed them that he did not have the aforesaid relationship. His wife and and his two children and his father in law, however, abused him and thereafter his wife Fulabai and his father in law Nagnath pushed the door and his son Sudam threw the chilly powder in his eyes and his son Shrikrishna dealt a blow of scythe on his left leg causing injury. On hearing his shouts, his brother Haridas and mother Muktabai came there and thereafter a jeep was brought and he was taken to the Government hospital. The doctor there referred him to Ashwin Hospital at Solapur. The statement of the injured is at Exhibit 33. The statement was thereafter handed over to the Police Station Officer of Sadar Bazar Police Station, who accordingly registered an offence vide Crime No.0/2001 and referred the papers to Police Station, Naldurg. PW 8 PI Nagnath Gaikwad, who was attached to Police Station, Naldurg, as API, received the papers and learnt that on 16.12.2001, Digambar had succumbed to his injuries and accordingly on 17.12.2001, he visited the scene of the offence and drew the scene of the offence – panchanama and attached the blood stained sickle and a pair of chappals under the scene of the offence – panchanama at Exhibit 28. He recorded the statements of 11 witnesses and on 18.12.2001, he arrested the - 5 - accused Sudam and Shrikrishna and attached their clothes. On the next day i.e. on 19.12.2001, he arrested accused Fulabai. On 29.12.2001, the seized property was referred to the Chemical Analyser and on completion of the investigation, he filed a charge-sheet in the Court. 4] On committal of the case to the Court of Sessions, trial Court, vide Exhibit 13, framed charge against the appellants – accused for offence punishable u/ss. 341 r/w 34, 302 r/w 34 and 201 r/w 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 9 witnesses. The trial Court, upon appreciating the evidence of the prosecution, convicted and sentenced the appellants – accused, as afore-stated. 5] In order to appreciate the submissions advanced before us by Shri V.D. Sapkal, learned counsel for the appellants-accused and the learned APP on behalf of the State, it would be useful to refer to the evidence of the prosecution witnesses. 6] The prosecution has examined PW 2 Sonabai, with whom it was alleged that the deceased had illicit relations. PW 2 Sonabai states that about two months prior to the incident, there was a quarrel between her and accused Shrikrishna on account of the allegations of the accused that Sonabai had illicit relations with deceased Digambar. She states that she had accordingly lodged a complaint against accused Shrikrishna in the Police Station. She further states that there - 6 - used to be frequent quarrels between deceased Digambar and his wife and sons. The prosecution curiously has not produced on record the report lodged by PW 2 Sonabai. 7] The prosecution has examined PW 6 Haridas, brother of deceased Digambar, who states that Digambar was his elder brother with whom he was residing jointly along with his mother Muktabai. He states that about two years prior to the incident, he and Digambar had separated and were residing in their respective houses. He states that on 12.12.2001, he had gone to his land on his motorcycle and at about noon, Digambar had come on his motorcycle. He states that two sons of Digambar were in the agricultural field and thereafter Shrikrishna and Sudam went towards the village at about 3-00 p.m. on their bicycles. At about 6-30 p.m., Digambar reached his house while PW 6 Haridas reached his house about 15 minutes thereafter. He states that on hearing the sound of his motorcycle, Digambar had called him that his sons had assaulted him by a scythe. He states that he parked his motorcycle and went towards the house of Digambar and noticed Digambar lying on the ground with blood oozing from his left leg below the knee. At that time, Shrikrishna had a scythe in his hand and he accordingly snatched it from him. He states that Sudam had chilly powder in his hand while Fulabai was standing near the door. He states that his mother and neighbour Balbhim rushed there and he had accordingly thrown the blood stained scythe on the roof of the house of Digambar. He states that he brought the jeep and thereafter Digambar was shifted to the hospital. He states that the police had - 7 - recorded his statement on 17.12.2001 and for the first time, he had narrated the incident to the police. He has admitted that one Nagnath Kaqdam, an Advocate, is his distant relative and he had taken Nagnath Kadam to Solapur. He states that on the second day, the police had come to the hospital in the morning, but could not state if the police had come in the previous night. 8] PW 7 Balbhim states that he heard the shouts of quarrel of the ladies in the house of Digambar and accordingly had gone to the house of Digambar and he noticed Shrikrishna with a scythe in his hands and PW 6 Haridas had snatched the scythe from his hands and had thrown it on the roof of the house. He states that wife of Digambar was standing by the side of the door while Sudam had chilly powder in his hand. He has admitted that his statement came to be recorded on 17.12.2001 and he had stated about the incident to the police for the first time. 9] Post mortem on the dead body of deceased Digambar was performed by PW 1 Dr.Ashok Kanki, who noticed following injuries on the dead body of Digambar: [1] Sutured incised wound on medical aspect of left knee and below it 7 ½ inch in length, vertical and incised wound below it on medical aspect of the calf, 4 x 1 inch skin deep vertical. [2] Sutured chop wound on posterior aspect of left knee, 5 ½ inch length, transverse joint deep ligaments and blood vessels cut few sutures broken, joint exposed partly. [3] Incised wound on lateral aspect of left leg below knee, 10 x 2 ½ inch, muscle deep, vertical, muscles exposed. - 8 - [4] Chop wound on lateral aspect of left leg below knee, 7 inch length, transverse, partly sutured with fracture fubila upper end. [5] Blister seen on interior and lateral aspect of left thigh 7 x 1” transverse. [6] Two medical prick marks seen on abdomen below umbilicus (treatment-part). [7] Three, small abrasions seen on lateral aspect of left wrist ¼ x ¼ inch brown. He opined that all the injuries were ante mortem and in his opinion, the cause of death was shock haemorrhage due to multiple chap injuries on left leg with fracture fubila with injuries blood vessels. The post mortem report is at Exhibit 24. 10] Shri V.D. Sapkal, learned counsel for the appellants-accused, has urged before us that there is enormous delay in recording of the statements of the witnesses. Though the incident occurred on 12.12.2001, yet the statement of the witnesses came to be recorded on 17th December i.e. after five days. The brother of deceased Digambar i.e. PW 6 Haridas had made no efforts of lodging the report against the accused if he was an eye witness. It is further urged before us that it is apparent that the whole story has been cooked up subsequently in order to implicate the accused. The learned APP has supported the judgment of the trial Court and has urged for dismissal of the appeal filed by the appellants-accused. 11] According to us, the finding of the blood stained scythe on the roof after five days of the incident clearly speaks about planting of this evidence. According to - 9 - PW 6 Haridas, he had thrown the blood stained scythe on the roof of the house of Digambar. We find it difficult to believe that the accused would permit the blood stained scythe to remain on the roof of their house for a period of five days and the said scythe would be discovered while drawing the scene of the offence – panchanama. No traces of chilly powder were found at the scene of the offence nor was chilly powder found on the clothes of Digambar. None of the prosecution witnesses viz. PW 6 Haridas and PW 7 Balbhim speak about presence of father in law of deceased Digambar. Yet in the dying declaration at Exhibit 33, Digambar states about the presence of his father in law to whom the overt-act is attributed of closing the door. The dying declaration also does not refer to the other multiple injuries, but speaks about only one injury being dealt by a scythe on the leg of Digambar by accused Shrikrishna. The delay in recording the statements of witnesses viz. PW 6 Haridas and PW 7 Balbhim have not been explained by the prosecution. PW 6 Haridas had not made any attempts for immediately lodging a report, but claims to have disclosed the incident for the first time when his statement came to be recorded. We find that the dying declaration and the testimony of PW 6 Haridas and PW 7 Balbhim contracts each other and, therefore, no implicit reliance at all can be placed either on the dying declaration or on the testimony of PW 6 Haridas and PW 7 Balbhim. According to us, therefore, the appellants-accused deserve to be given the benefit of doubt. 12] Criminal Appeal No.777/2005 filed by the appellants-accused is allowed and the conviction and sentence of the appellants-accused is hereby quashed and set - 10 - aside and they are acquitted of the offences with which they are charged and convicted. Fine, if paid by the appellants, be refunded to them. Their bail bonds stand cancelled. Criminal Appeal No.34/2006 filed by the State is dismissed. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/sdl