1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 167 OF 2010 The State of Maharashtra .. Applicant Vs Dnyanu Narayan Mahajan & Ors .. Respondents Mr. S.S. Pednekar, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 25th MARCH, 2010 P.C.: [PER SMT. V.K. TAHILRAMANI, J] 1. The applicant – State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 31.08.2009 passed by learned Ad-hoc Additional Sessions Judge-1, Sangli in Sessions Case No. 60 of 2008. By the said judgment and order, the respondents – original accused nos. 1 to 4 came to be acquitted of the offences punishable under section 302 read with section 34 of I.P.C. 2. The prosecution case briefly stated is that the complainant Bayakka was residing with her husband and sons in village Mhaishal, Taluka Kavathemahankal. Deceased Sadashiv was her elder son. On 31.12.2007, at about 5.30 p.m., Sadashiv went to village Karoli in order to buy jersey cow. Sadashiv did not return that night. On the next day, in the 23.appln167­10 2 morning at about 8.30 to 9.00 a.m., Bayakka went to the house of Aba Patole and made enquiry about Sadashiv. Aba told Bayakka that his son Sambhaji - original accused no. 2 came to the house at 2.00 p.m. in the night and he is sleeping. Sambhaji was woken up. He informed that Sadashiv was wandering in the village. So Bayakka returned to her house. At about 11.00 to 11.15 a.m., Dnyanu (original accused no. 1) and Sambhaji (original accused no. 2) brought Sadashiv on a motor cycle and made him sleep on the cot in the shed of the complainant. Sadashiv was under the influence of liquor and he was unable to talk. At about 6.00 p.m., Sadashiv regained consciousness and told Bayakka that all the accused persons beat him. After some time, fluid started coming out from the mouth of Sadashiv and at about 10.00 p.m. he died. On the next day i.e on 02.08.2008 at about 8.00 a.m., funeral of Sadashiv was performed. On 04.01.2008, Bayakka and her husband filed application in Kavathemahankal Police Station alleging that all the four respondents made Sadashiv drink liquor and beat him and hence, they are responsible for the death of Sadashiv. This application was received in Kavathemahankal Police Station on 09.01.2008 by Inward No. 45/2008. On that day, Police Inspector Shri. R.Y. Shinde was on leave, so in charge PSI Shri. Vithal Nivrutti Chavan himself undertook the investigation of the said application. On 13.01.2008 PSI 23.appln167­10 3 Shri. Vithal Chavan went to the house of the complainant Bayakka in village Mhaishal. He made inquiry with complainant Bayakka, her husband Eknath, recorded their statements and obtained their signatures and thumb impression thereon. On the same day, complainant Bayakka lodged oral complaint alleging that the original accused nos. 1 to 4 beat Sadashiv as he did not give party to the accused and due to their beating, Sadashiv died. After completion of investigation, the charge sheet came to be filed against the respondents - accused. 3. Charge came to be framed by the learned Sessions Judge against the respondents under section 302 read with section 34 of IPC. All the respondents - original accused nos. 1 to 4 pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, learned Sessions Judge acquitted the respondents. 4. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Ad-hoc Additional Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the 23.appln167­10 4 reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5. The main reason for disbelieving the case of prosecution is that though Sadashiv died on 01.01.2008, no complaint came to be lodged on that day. In fact, on the next day, funeral of Sadashiv was performed. Thereafter, for the first time on 04.01.2008, Bayakka and her husband sent application to Kavathemahankal Police Station alleging that the respondents made deceased Sadashiv drink liquor and beat him and hence, they are responsible for his death. This application was received in Kavathemahankal Police Station on 09.01.2008 by Inward No. 45 of 2008. On that day, PI Shri. R.Y. Shinde was on leave, hence, PSI Vithal Chavan took over investigation into the application. On 13.01.2008, PSI Vithal Nivrutti Chavan went to the house of the complainant Bayakka. He made inquiry with them and recorded their statements. Thus, on 13.01.2008, Bayakka lodged oral complaint alleging that the respondents beat her son Sadashiv as he did not give them party and due to their beating Sadashiv died. This delay in lodging FIR, itself, throws a serious cloud of doubt on the prosecution case. The application was sent by Bayakka to Kavathemahankal Police Station four days after the death of her son Sadashiv. After 23.appln167­10 5 her son died on 01.01.2008, neither Bayakka nor her husband made any attempt to lodge the FIR but in fact, on the next day morning, the funeral of Sadashiv came to be hurriedly performed and only thereafter,Bayakka and her husband sent the application to the Police Station wherein the respondents - original accused nos 1 to 4 for the first time came to be implicated by Bayakka and her husband i.e the parents of the deceased. 6. It is the case of the Bayakka that on 01.01.2008, Sadashiv disclosed to her that the respondents beat him and he died on that day at about 10.00 p.m. Though it is the case of Bayakka that her son informed her this fact o 01.01.2008, she did not go to the Police Station and in fact, the evidence of PW4 Savitribai Bhimrao Chougule and PW10 Alka Ashok Shinde shows that funeral of Sadashiv was performed hastily in the morning on the next day. 7. As stated earlier, Bayakka sent the application to the Police Station on 04.01.2008. However, in that application, there is no mention that Sadashiv himself had disclosed to Bayakka that respondent nos. 1 to 4 beat him. There is inordinate delay of 13 days in lodging the complaint which goes to show that the respondents have been implicated in this case after due deliberation and as an afterthought. 23.appln167­10 6 8. In the application dated 04.01.2008, Bayakka has stated that Raghunath Jagtap was present, when her son Sadashiv was beaten up by the respondents. Evidence of PW15 Vithal Chavan shows that on 04.01.2008, Bayakka and her husband came to Kavathemahankal Police Station and gave typed application (Exh 93). In this application, the complainant and her husband stated that their son Sadashiv died on 01.01.2008 at about 10.00 p.m. suddenly and unexpectedly. In this application, it is also alleged that the respondents made Sadashiv drink liquor on 31.12.2007 and beat him. It is pertinent to note that in this application, it is not mentioned that on 01.01.2008, Sadashiv disclosed to Bayakka that the respondents had beaten him. Thus, no such fact has been narrated by Bayakka and her husband in their complaint (Exh 68). Thus, the testimony of Bayakka and her husband that Sadashiv told her that the respondent nos. 1 to 4 beat him which amounts to oral dying declaration of Sadashiv to Bayakka cannot be safely relied upon. 9. The prosecution has examined PW1 Raghunath Jagtap, who according to the prosecution is an eye witness to the incident. PW1 Raghunath has stated that he heard abuses. When he went to the spot, he saw that Baban Karande was abusing Sadashiv and Dnyanu Mahajan and Sambhaji Patole were present there. On inquiry, Sadashiv Patole told him that 23.appln167­10 7 Baban Karande beat him. He has stated that Baban, Dnyanu and Sadashiv were under the influence of liquor. This witness has further stated that when Baban Karande beat Sadashiv, he prevented Baban from doing so. It is pertinent to note that in her application (Exh 93), Bayakka has made allegation that Sadashiv was beaten by Raghunath also. However, in the compliant (Exh 68), Bayakka has deleted the name of Raghunath. Thus, it is seen that the original case of the complainant is that along with other accused, Raghunath had also assaulted her son Sadashiv. However, thereafter, she has deleted name of Raghunath. In such case,possibility of Raghunath deposing against the Respondents in order to save himself cannot be ruled out. The fact that first in point of time, the complainant had stated that Raghunath was also one of the assailants, however, Raghunath stated that he in fact tried to save Sadashiv from assault by the accused persons, makes his evidence shaky. Looking to all these aspects, learned Sessions Judge was right in observing that the evidence of PW1 Raghunath does not inspire confidence. 10. The evidence of PW3 Rajendra Sagare shows that he is running hotel in village Karoli. He has stated that Sambhaji, Dnyanu and Sadashiv came to his hotel for taking breakfast on 01.01.2008 at about 10.30 a.m. He has stated that Sadashiv did not eat breakfast and he was looking weak 23.appln167­10 8 and pale at that time. In the complaint (Exh 68), it is mentioned that Sadashiv was under the influence of liquor when he was brought home on motor cycle and he was unable to talk. Hence, it can be safely inferred that because of consumption of liquor, Sadashiv was unable to talk and walk, hence, he might have been brought on motor cycle and dropped at his house. Hence, simply because Dnyanu and Sambhaji brought Sadashiv home, it cannot be said that they had beaten Sadashiv. All these above facts and most glaring fact being the inordinate delay in lodging the FIR shakes the very foundation of the prosecution case. 11. The learned Sessions Judge has considered all the above aspects and thereafter he has reached the conclusion and in our opinion, rightly so, that the prosecution has not been able to prove beyond all reasonable doubt that the respondents were in any way connected with the incident. On going through the evidence on record, we find that the order of acquittal by the learned Sessions Judge is a reasonable and plausible view. 12. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, 23.appln167­10 9 will not interfere solely because a different plausible view may arise on the evidence. The Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Special Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, application for leave to file appeal, is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 23.appln167­10 10 23.appln167­10