1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4913 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Bahaddur Moula Bagsar & Ors .. Respondents Mr. H.J. Dedhia, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 28th APRIL, 2010 P.C.[PER SMT. V.K. TAHILRAMANI, J]: 1. The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 29.06.2009 passed by learned Additional Sessions Judge, Jaysingpur in Sessions Case No. 9 of 2008. By the said judgment and order, the respondents i.e. original accused nos. 1 to 3 came to be acquitted of the offence punishable under section(s) 302,324,323 and 504 read with section 34 of I.P.C. 2. The prosecution case briefly stated is that there was a 5.appln4913-09 2 dispute between family of the accused and the family of the complainant Shehenaj in respect of possession of land block no. 233 of Village Nim Shirgaon, Tal. Shirol, Dist. Kolhapur. On the date of the incident i.e on 04.12.2007 at about 7.00 a.m., the complainant PW4 Shehenaj went to land block no. 233 for weeding grass along with her sister PW5 Fatima, PW6 Maqbul and some others. At about 1.30 p.m, while they were weeding grass, they saw all the three accused persons were cutting shalu (jawar crop) from that land with sickle. Hence, the complainant and her sister Fatima questioned the accused why they were cutting the crop from that land. However, the accused abused the complainant and her sister and pushed them away. Meanwhile deceased Asif Rajekhan Bagsar came to the land. He also questioned the accused as to why shalu (jawar crop) was being cut from his land. At that time, all the three accused rushed on the person of Asif. Accused No. 3 Umesh pulled the hands of Asif. Accused NO. 2 Himmat caught hold of the legs of Asif and accused No. 1 Bahaddur gave a blow with sickle on the chest of Asif. The complainant Shehenaj intervened to rescue Asif but accused no. 2 Himmat gave a blow with sickle on her right wrist. Thereafter, all the accused ran away. The complainant and Fatima saw that Asif was dead, hence F.I.R. came to be lodged. 5.appln4913-09 3 3. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge as well as the evidence produced by the learned A.P.P. After carefully considering the matter, for the 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. 4. In order to prove its case, the prosecution has examined three eye witnesses i.e PW4 Shehenaj, PW5 Fatima and PW6 Maqbul. The defence of the accused is that of private defence. It is pertinent to note that accused no. 2 Himmat had sustained multiple injuries at the time of the incident. The prosecution has not explained the injuries found on the person of Himmat. It may be noted that the accused had applied for, sought and got the order of summoning the medical officer Civil Hospital Sangli, who had examined accused Himmat on 04.12.2007 itself in respect of injuries caused to Himmat. However, the medical officer was not available. 5. Three alleged eye witnesses examined by the prosecution are all close relatives of the victim. This is an admitted position by both sides. It is also clear that there were some independent witnesses present at the place of occurrence but 5.appln4913-09 4 the prosecution has chosen not to examine any of them. It is true that the evidence of close relatives need not be rejected on this count but while appreciating the evidence it is required that their evidence be appreciated very cautiously and carefully. Keeping this in mind, we have examined the evidence of PW4, PW5 and PW6. 6. It is the specific case of the complainant PW4 Shehenaj that the accused persons were cutting shalu (jawar crop) from their land and when the complainant and her sister PW5 Fatima questioned the accused persons, the accused persons assaulted Asif as well as the complainant. However, in her cross-examination, the complainant has admitted that accused no. 1 Bahadur, accused no. 2 Himmat and their father Maula claimed that they have shares in that land and that Asif and Rajekhan do not allow Bahadur and others to enter that land. She has also admitted that Maula, father of accused Himmat and Bahadur had filed a suit against Rajekhan so also Rajekhan had filed a suit against Maula. Prior to the incident, the suit filed by Rajekhan, father of Asif was decided against him. A copy of order dated 28.11.2007 passed by the learned Civil Judge Jt. Division Jaysingpur below Exh. 5 in R.C.S. No.108 of 2007 heard and decided with Exh.5 in RCS No. 109 of 2007 at Exh. 93 shows that the temporary injunction application filed by Maula and his sons was 5.appln4913-09 5 allowed and the defendants therein Rajekhan (father of deceased Asif) complainant PW4 Shehenaj and PW5 Fatima etc were restrained from obstructing Maula and his sons in the enjoyment of that land till the decision of that suit, where as the temporary injunction order sought against Maula and his sons by Rajekhan in R.C.S. No. 109 of 2007 came to be rejected. 7. From the above facts, it becomes clear that the accused had a right to cultivate and enjoy that land and there was in fact an order against the complainant's family restraining them from obstructing Maula and his sons from enjoying the land. In such case, the defence taken by the accused that they exercised their right to private defence, stands substantiated. 8. It is the case of the prosecution that after the incident, Shehenaj went to Gram Panchayat Nim Shirgaon and made a telephone call to Jaysingpur Police Station informing about the incident of murder of Asif and she returned to the spot of incident. Thereafter, Police went to the spot at about 2.00 to 2.30 p.m. They recorded the statement of Shehenaj (Exh. 48) and on its basis, the case came to be registered. However, the extract of the station diary entry at Exh. 69 does not show any entry regarding information 5.appln4913-09 6 given by Shehenaj on telephone regarding the murder of Asif. The station diary entry extract, on the other hand, shows that one Swastik Patil had informed the Police at about 3.10 p.m. regarding the murder of a person in the land situated by the side of Nim Shirgaon to Danoli road. On receiving this information, the Police went to the spot. The prosecution or even the Police Head constable Mahesh Shinde PW8 has not stated as to why the entry regarding the information given by Shehenaj on telephone regarding this cognizable crime was not taken in the station diary on 04.12.2007. PW8 Mahesh was in charge of station diary from 8.00 a.m. to 8.00 p.m. Had Shehenaj really informed this serious incident on telephone to the Police Station from the Gram Panchayat office of Nim Shirgaon prior to 2.00 p.m., naturally the Station Officer in charge of Station Diary would have taken note of it immediately. 9. It is not the case of the prosecution that Shehenaj asked this Swastik Patil to inform about the incident on telephone to the Police Station and accordingly, Swastik Patil informed the Police station at about 3.10 p.m. Shehenaj has categorically stated in her evidence that it was she who on telephone informed the Police station about the incident. The prosecution has also not examined Swastik Patil so as to clarify the position. Nor any clarification has come from 5.appln4913-09 7 the mouth of Police constable PW8 Mahesh Shinde who was then holding the Station Diary nor from any other prosecution witnesses. These facts lead to the conclusion that Shehenaj has not informed the police as claimed by her. Thus, the fact that there is no entry in the station diary, falsifies the evidence of Shehenaj. 10. As far as the time of incident is concerned, there is great inconsistency regarding the time of incident. All the witnesses have given a different time. On the point of the incident also, all the witnesses have a different story to tell. There is no consistency even on the point of actual incident. It is true that the evidence cannot be considered mathematically and no two persons can tell the same incident in the same words. However, there should be consistency on the material points or at least there should not be inconsistency or omission on any material points by any of the witnesses. Shehenaj has improved her story before the Court saying that Umesh pulled the hands of Asif whereas Himmat caught hold of the legs of Asif. It is not so stated by her in her F.I.R. at Exh. 48. Nor Fatima PW5 or Maqbul PW6 have stated about it. From the version of Shehenaj PW4, it appears that on Bahadur giving a sickle blow on the chest of Asif, Asif fell down shouting, 'ammage' and then this witness intervened to rescue Asif when accused Himmat gave a 5.appln4913-09 8 blow of sickle on her right wrist. Fatima PW5, on this point has stated that when Asif came near Shehnaj and Fatima on hearing the noise, accused Bahadur said to Asif, "Randke Mai Thujhe Chodta Nahi" and Asif then fell down saying "ammage". The above sentence allegedly uttered by Bahaddur is not mentioned by either Shehenaj or Maqbul. PW5 Fatima does not say that accused Umesh pulled the hands of Asif, whereas Himmat caught hold of the legs of Asif. Neither PW4 Shehenaj nor PW5 Fatima have stated that Himmat and Bahaddur made Asif fall down and even then Asif got up and then Bahaddur assaulted Asif by sickle on the left side of the chest and Asif then fell down saying, "ammage". PW6 Maqbul has specifically stated that all the accused gave kicks and blows to Asif even after he fell down. This is not stated by either complainant or Fatima at any stage. All these improvements and discrepancies raise doubt in the mind regarding veracity of the evidence of the prosecution witnesses. 11. It is the specific case of the witnesses that they had gone to the land to weed grass at about 7.00 a.m. and they continued the work of weeding grass till about 1.30 p.m. However the spot panchanama does not show that any weeding had taken place at the spot. This fact also falsifies their evidence. 5.appln4913-09 9 12. The prosecution has also relied on the evidence relating to the seizure of blood stained clothes from the person of the accused. PW2 Tajuddin is the panch witness who is examined on this aspect. He has stated that on 05.12.2007, he went to the police station to act as panch witness for the panchanama relating to the seizure of clothes of the accused. This witness has stated that accused Bahadur then produced a pant which was having blood stains. He has further stated that accused Umesh also produced a old full pant having many blood stains and old used shirt also having many blood stains. They were seized under a panchanama Exh. 38. During his cross-examination, PW2 Tajuddin has stated that on his queries, police told him that a panchanama of the seizure of clothes was to be held. He has also stated that Bahaddur and Umesh both had their clothes on their person when this witness along with another panch Abdul Sattar went to that police station. He has further clearly stated that both above accused were standing holding clothes to be seized in their hands in the Police Station when the panchas reached there. 13. According to the remand application dated 05.12.2007 made before the learned J.M.F.C., Jaysingpur, both the accused, Bahadur and Umesh were arrested on 04.12.2007 at 5.appln4913-09 10 about 9.30 p.m. If that is so, then it is unlikely that the accused would keep ready the clothes in their hands which were allegedly on their person at the time of the incident till 5.00 p.m on 05.12.2007. The Panchanama relating to seizure of clothes (Exh. 38) shows that it was held between 5.30 p.m. to 6.30 p.m. on 05.12.2007. It is not known how these accused carried these blood stained clothes which were allegedly on their person at the time of the incident when they were arrested at about 9.30 p.m. and were in the Police station, since, thereafter, they were produced before the learned J.M.F.C. Jaysingpur. It is unlikely that these accused would carry these clothes with them in their hands while they were arrested or even later when they were produced before the Magistrate. If that is not so, then it is not known who brought these clothes to the Police station and how they came into the hands of the accused. Such seizure of clothes cannot be accepted or believed. Moreover, there is no C.A. report regarding the blood group on these clothes. The C.A. report at Exh. 92 shows that the blood group of the blood allegedly found on these clothes was inconclusive. Such a report is not helpful to the prosecution. Even the blood group of the four phials of blood sent to the chemical analyzer is inconclusive. They were allegedly the phials of blood sample of accused Bahaddur, Umesh and victims Asif and Shehenaj. 5.appln4913-09 11 14. As far as recovery of weapon at the instance of accused Bahadur is concerned, Bahadur produced two sickles before the Police. These two sickles were taken out from an open area just 15 ft away from the road which was accessible to everybody. The panch witness PW3 Sachin Lohar relating to this panchanama is not an independent panch witness. Panch witness PW3 Sachin in his cross-examination has admitted that another panch Satar Mahant is his friend and this witness is cultivating the land of share of Rajekhan (Asif's father) and Shehenaj in the land block no. 233. This shows that he is not an independent witness. Under these circumstances, recovery from accused Bahadur cannot be relied upon. 15. It is the case of the prosecution that Bahadur assaulted Asif with sickle. At that time, Shehenaj tried to intervene to rescue Asif but accused Himmat gave a blow on her right wrist with sickle. Thereafter, the accused ran away. To show the presence of complainant PW4 Shehenaj on the spot, she is shown to have got injured in the alleged incident. In fact, it appears that she had not sustained any such injury in the incident as alleged by her nor she was present on the spot of the incident. The evidence of PW7 Dr. Rahul shows that on examination of Shehenaj, he found an 5.appln4913-09 12 abrasion over the anterior part of her right forearm. The said injury was simple in nature. During his cross- examination, PW7 Dr. Rahul has admitted that a sickle is a sharp and cutting weapon and due to hitting of it, it causes incised wound and if hit by pointed end of sickle, it causes a stab wound. Dr. Rahul has clearly stated that there cannot be abrasion due to forcible hit by sickle by its pointed end or sharp edge. If that is so, then it cannot be said that abrasion found on the person of Shehenaj by the Medical Officer was sustained due to hitting of a sickle as she has claimed. 16. Looking to the evidence on record, we find that conclusion arrived at by the learned Sessions Judge is a reasonable and possible view. 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, will not interfere solely because a different possible 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 5.appln4913-09 13 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 Sessions 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, leave to file appeal, is refused. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 5.appln4913-09