drp {1} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.147 OF 1994 WITH CRIMINAL REVISION APPLICATION NO.12 OF 1994 xxxx CRIMINAL APPEAL NO.147 OF 1994 The State of Maharashtra APPELLANT VERSUS 1. Shrikishan s/o Yeshwanta Yeole RESPONDENTS Age-25 years, 2. Ramesh s/o Ashruba Yeole Age-25 years 3. Vikram s/o Rajabhau Yeole Age-22 years 4. Udhav s/o Yashwanta Yeole Age-30 years All Agriculturists by occup. & R/o Babhalkunta, Tq & Dist-Beed ....... Mr. K.G.Patil, APP for appellant State Mr. S.S.Chaudhari, Advocate for respondents No.1 to 4 ....... WITH CRIMINAL REVISION APPLICATION NO.12 OF 1994 drp {2} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 Sopan s/o Uttamrao Yeole APPELLANT Age-Major, Occ-Agriculture R/o Babhalkuntha, Tq & Dist-Beed VERSUS 1. The State of Maharashtra RESPONDENTS 2. Shrikishan s/o Yeshwanta Yeole Age-25 years, 3. Ramesh s/o Ashruba Yeole Age-25 years 4. Vikram s/o Rajabhau Yeole Age-22 years 5. Udhav s/o Yashwanta Yeole Age-30 years Nos.2 to 4 Agriculturists by occup. & R/o Babhalkunta, Tq & Dist-Beed ....... Mr. K.G.Patil, APP for Respondent No1 State Mr. S.S.Chaudhari, Advocate for respondents No.2 to 5 ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 19 th January 2011 ORAL JUDGMENT (PER P.V.HARDAS, J.): 1. Criminal Appeal No.147/1994 has been filed by the drp {3} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 appellant State challenging the judgment of the Additional Session Judge, Beed, dated 05.11.1993, in Sessions Case No.45/1993, acquitting the respondents for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. Criminal Revision Application No. 12/1994 has been filed by the original complainant, challenging the acquittal of the accused. Since both these matters arise from the same judgment, the appeal as well as the revision is being decided by this common judgment. 2. PW-14 Mohd. Khaja Pasha, PSI, who was attached to Pimpalner police station, recorded the complaint of PW-3 Sopan at Exhibit-23, on 10.10.1992. On the basis of the said compliant an offence, vide Crime No.115/1992 u/s 302 r/w 34 of the Indian Penal Code, was registered. Upon registration of the crime, PW-14 PSI Pasha proceeded to village Babhulkunta. On the next day the accused came to be arrested and the inquest Panchanama on the dead body of deceased Sakharam was drawn at Exhibit-13. The dead body of deceased Sakharam was referred for Postmortem examination to the Civil Hospital. The scene of offence Panchanama came to be drawn at Exhibit-14, in the presence of Pancha witnesses. Statements of the witnesses came to be recorded. The Postmortem examination came to be conducted by PW-7 Dr.Adinath Pokale. He noticed the following external injuries: 1. Partial amputation (chop wound) of left knee joint with drp {4} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 compound, communicated fracture patella with dislocation of left knee joint, with all muscles and neuro vascular bundle cut, wound extending from medical anterior and lateral aspects with only 5 cms of skin with subcutaneous tissue intact on postarior aspect, margins sharp blood clot present. 2. Incised wound 3 cms above left knee joint anteriorly transversely placed 5 cms X 1 ½ cms X bone depth, margins sharp, blood clot present. 3. Incised wound over middle of right arm on lateral and posterior aspect, transversely aspect 7 X 1 ½ cms X bone depth, margins sharp blood clot present, sharp cut over bone seen. 4. Incised wound over right arm in lower 1/3 rd area on anterior and lateral aspect, transversely placed, size 5 x 1½ cm x bone depth, sharp margins. 5. Incised wound over dorsum of left wrist size 7 cm x 1 ½ cm x bone depth, obliquely placed, sharp margins, sharp cut over lower end of radium bone seen. 6. Incised wound over lateral aspect of left forearm near elbow joint, obliquely placed 3 cms X 1 cm X ½ cm sharp margins. 7. Abrasion over right thigh in the lower 1/3rd region on anterior side, transversely placed 3 cms X ½ cms. He opined that all the injuries were ante morotem and drp {5} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 injuries No.1 to 6 could be caused with sharp weapon like sickle or axe while injury No.7 could be caused by hard and blunt substance. On internal examination, he noticed that the brain was paled and right and left lungs were also paled. He, therefore, opined that cause of death was cardio respiratory failure due to hemorrhagic shock due to multiple injuries. He has opined that the injury No.1, in the ordinary course of nature, was sufficient to cause death. Postmortem report is at Exhibit-32 and provisional certificate in respect of cause of death is at Exhibit-33. 3. During custodial interrogation, accused Vikram had expressed his willingness to point out the place where the axe and sickle were hidden. Accordingly, memo came to be drawn in presence of Panchas at Exhibit-26. The accused led the police and the Panchas and produced sickle and axe, which came to be seized vide Panchanama at Exhibit-26. On 14 th i.e. 4 days after the arrest of the accused, clothes on their person came to be seized, vide seizure memo at Exhibit-35. Accused Ramesh expressed his willingness, during custodial interrogation, in the presence of Pancha witnesses, to discover sticks. Accordingly, Memo at Exhibit-36 came to be drawn. Accused Ramesh led the police and the Panchas and accordingly stick came to be seized vide seizure memo at Exhibit-36A. Statements of other witnesses came to be recorded and the seized property came to be referred to Chemical Analyzer through PW-13 ASI Krishna along with requisition at drp {6} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 Exhibit-46. Absconding accused Uddhav came to be arrested on 22.11.1992. Further to the completion of the investigation, a charge sheet, against the accused, came to be filed. 4. On committal of the case to the Court of Sessions, charge vide Exhibit-5 came to be framed against the accused, for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. The accused abjured their guilt and claimed to be tried. Prosecution, in support of its case, examined 14 witnesses. The defence of the accused is of denial. The trial court, upon consideration of the evidence of the prosecution, acquitted the respondent / accused, which has lead to the filing of the appeal and the revision. 5. The substratum of the prosecution case rests on the evidence of PW-1 Alka, who claims to have seen the accused near the place where her father, deceased Sakharam, was lying. The prosecution has examined PW-2 Rukminibai, PW-3 Sopan and PW-4 Uttam to depose about the strained relations between the accused and deceased Sakharam, as deceased Sakharam was supporting the rival of the accused with whom the accused had differences. In her evidence of PW-1 Alka states that she had returned from school on 10.10.1992, which was a Saturday. She went towards the threshing ground, where the grain was being threshed by her mother PW-2 Rukminibai and PW-3 Sopan. Her drp {7} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 mother asked her to go to the place where deceased Sakharam was and to find out as to what had detained him. PW-1 Alka states that she had accordingly proceeded to the place where her father was working i.e. near the cross roads near bus stand. She states that she had noticed that her father was lying injured there. She claims that at the distance of about 15 to 20 feet, she had seen the accused, who were standing there and one of the accused was holding sickle. She accordingly rushed back and informed her mother, who also rushed back to the place where her father was lying, in order to verify. PW-3 Sopan, who was threshing the grain could not overhear as to what was stated by PW-1 Alka to PW-2 Rukminibai and, therefore, he too followed them. Subsequently, PW-4 Uttam arrived there, after selling the milk and was appraised of the incident. The police immediately rushed to the scene of offence, yet no report was lodged. 6. The Trial Court has highlighted the omissions which have been elicited in the evidence of prosecution witnesses. In the cross examination of PW-1 Alka omission has been duly proved that she had not stated in her previous statement that she saw accused Kisan, Ramesh, Vikram and Uddhav at a distance of 10 to 15 feet from the place where her father was lying. Omission has been duly proved that she had not stated in her previous statement that she had informed her mother that the accused had assaulted deceased Sakharam with sickle. Similarly, omission has been duly drp {8} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 proved in the evidence of PW-2 Rukminibai that she has not stated in her previous statement that Alka had informed that Sakharam had been assaulted by a sickle. Omissions of vital aspects have been proved in respect of evidence of PW-3 Sopan. Omission has been duly proved that he had not stated in his previous statement that Alka had returned at about 4.00 p.m. to the threshing floor and PW-2 Rukinibai had asked her to go and find out as to why Sakharam was detained till then. Omission has been duly proved that he had not stated in his previous statement that Alka returned back and narrated something to her mother, which PW-3 Sopan could not overheard on account of the noise of threshing machine. Omission has been duly proved that he had not stated that he had switched off the machine and had followed Alka and her mother. Similarly, omission has been duly proved that he had not stated that he saw the accused running in the northern direction. 7. Even if it is assumed that the accused were seen near the scene of offence at a distance of 10 to 15 feet, according to us, that by itself would not lead to an inference that it were the accused and accused only, who had committed the offence. The scene of offence is a public place, i.e. cross roads, near the bus stand. Presence of the accused, therefore, near about or in the vicinity of the scene of offence cannot be said to be a suspicious circumstance. Clothes on the person of the accused had been drp {9} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 seized, but nothing incriminating was found i.e. blood group was not determined. Even otherwise, the clothes of the accused were seized after 4 days of their arrest. Similarly, the weapon i.e. sickle, which was seized, was found stained with human blood, however the blood group could not be determined. 8. Blood group of deceased was determined as “O” group by the Chemical Analyzer. In absence of connecting evidence, which would connect presence of the accused at the scene of offence and lead the court to an inference that in all probabilities it were the accused and accused only who had committed the offence, according to us no offence can be said to have been made out. The trial court, therefore, has given the benefit of doubt and we do not find that the aforesaid benefit of doubt is misplaced. 9. With the assistance of learned APP and Mr.S.S.Chaudhari, learned counsel for the respondent / accused, we have perused the findings recorded by the trial court. Upon such perusal we do not notice any infirmity in the reasoning of the trial court, much less any perversity, to warrant any interference in this appeal against acquittal. The view of the trial court is a possible view to be taken on the basis of the evidence on record. In such circumstances, therefore, according to us, the appeal as well as the revision deserve to be dismissed. drp {10} Cri. Appeal No.147/1994 with Criminal Revision No.12/1994 10. Accordingly, Criminal Appeal No.147/1994 and Criminal Revision Application No.12/1994 are dismissed, confirming the acquittal of respondents /accused. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B10/criapel147-94