1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.328 OF 1992 The State of Maharashtra ..Appellant Vs. 1. Arun Mahadu Vadghule 2. Nandu Sonyabapu Vadghule ..Respondents ......... Mrs.U.V.Kejariwal, for appellant. Ms.Revati Mohite-Dere, for respondent nos.1 and 2. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 16th SEPTEMBER, 2010. JUDGMENT (PER R.G.KETKAR, J.) : This appeal is preferred by the State challenging the judgment and order dated 10 th February, 1992 passed by the learned Addl. Sessions Judge, Baramati in Sessions Case No.7 of 1990. By that judgment, learned Sessions Judge acquitted the respondents (hereinafter referred as `accused’) of the offences punishable under Section 302 read with 34 Indian Penal Code, 1860 (for short `IPC’). The facts, giving rise to filing of appeal, are as under 2 2] It is the case of prosecution PW 1 Hiraman, complainant was residing at village Bhima Takli along with his father Rambhau, mother Sonubai, wife Shantabai and three children. He owned agricultural land admeasuring 22 acres. Land of Baban (he was accused no.1, however, on account of his death, appeal against him was abated) was situated adjacent to the land of complainant of PW 1 Hiraman. Since 4-5 years, there was dispute between the complainant and Baban over a Bandh between their lands. The complainant, brother of Baban and accused no.1 quarreled on account of Bandh and accused no.1 had beaten the complainant. The complainant had lodged complaint against the accused and brother of Baban because of that incident. They were eventually arrested. 3] It is the case of the complainant that in the night between 22 th July, 1989 and 23 rd July, 1989, the complainant, his mother, wife, children and father of complainant slept in the house. In the night at about 12 or 12:30 am, the complainant heard noise of barking dogs. He came out of the house and found that accused and deceased Baban were present near wall of his house. They were holding axes in their hands. The complainant asked as to what they were doing at that time. Then three persons ran away from the place. Then complainant’s father, mother, wife woke up from sleep and made inquiry with them. He informed them that accused and Baban had come and were present near the house and on his asking them, they ran away. It is the case of prosecution that the father of complainant, thereafter, went towards the village and returned within half and house and told to the complainant that he should not afraid of as was present. The father of complainant was slept in the house which was known as new 3 house. He, however, did not keep the doors closed. The complainant’s mother and wife thereafter slept in the house which was known as old house. The complainant, however, could not sleep. After some time, complainant found that accused along with Baban again came towards his house at about 2 am. They were holding axes in their hands. It is the case of prosecution that the complainant started shouting “Save Save” and accused along with Baban went in the house where his father was slept. Accused and Baban assaulted his father with axes and stones over his head and then ran away. Complainant, his mother and wife came out of their house and went near his father. Complainant also woke up his uncle Baburao and called him there. They found that his father Rambhaur received bleeding injuries on his head. Complainant and his uncle took Rambhau to Sassoon Hospital, Pune in a truck. However, they came to know that Rambhau died when he was being taken to hospital. PW 1 Hiraman lodged complaint against the accused that they, in furtherance of their common intention, committed murder of with axes and stones. 4] Charge was framed for the offence punishable under Section 302 read with 34 IPC against the accused at exhibit 12. Accused pleaded not guilty to the charge and claimed to be tried. The defence of accused was of total denial. Accused contended that there were two groups at village Bhima Takli, one was headed by accused Arun and another was headed by Baburao, uncle of complainant. The defence of accused was that they have no concern whatsoever with the property of PW 1 Hiraman and they had never assaulted Baburaol. Accused Arun was the Sarpanch of village Takli and since the elections of village panchayat was declared, they have 4 been implicated at the behest of Baburao who is the uncle of PW 1 Hiraman, so that accused Arun will be disqualified from contesting elections. 5] In support of its case the prosecution examined 9 witnesses. PW 4 Vasant and PW 5 Shantabai deposed that there was dispute between one Namdeo Narsale and the complainant Hiraman over a Bandh. However, they could not throw any light on the case and bring the material on record as to how accused herein were concerned with the said dispute over Bandh. The case of prosecution was that the accused were having friendly relations with Baban and they were also relatives of Namdeo. However, PW 1 Hiraman, PW 4 Vasant and PW 5 Shantabai could not state how accused were related with accused Namdeo Narsale or Baban. The learned Sessions Judge after considering the evidence of these witnesses, in paragraph no.7, came to the conclusion that the prosecution has not established motive. It is also necessary to note that the prosecution has not brought on record any material that in the past there was quarrel between Rambhau on one hand and accused and Baban on the other. In view of this, we are satisfied that the prosecution has failed to prove the motive by adducing cogent and reliable evidence on record. 6] Perusal of evidence of PW 1 Hiraman shows that the prosecution has not brought any material on record to indicate that at the relevant time there was sufficient light for identifying the accused. Considering the fact that PW 1 Hiraman and PW 5 Shantabai admitted that there was no supply of electricity in both the houses of complainant and considering the time of 5 alleged incident, it is doubtful whether PW 1 Hiraman, complainant could have identified the accused. Apart from that PW 1 Hiraman in the complaint mentioned that all the accused were holding axes in their hands. However, in the course of evidence before the court, he deposed that deceased Baban gave one blow with axe over the head of his father Rambhau. Thereafter, accused took some stone and hit over the head of his father and ran away from the place. Considering the evidence of PW 1 Hiraman and PW 5 Shantabai, it appears to be wholly unreasonable and improbable. It is also unnatural that the father of PW 1 Hiraman i.e. deceased Rambhau will would sleep without closing the door and also without putting latches from inside. 7] The defence came out with the case that the elections of Grampanchayat were to be conducted and the uncle of PW 1 Hiraman was the leader of the rival group and at his behest, PW 1 Hiraman implicated accused no.2. Though PW 1 Hiraman felt ignorance about the elections, from the evidence of PW 4 Vasant and PW 6 Baburao, it has come on record that the elections of village Grampanchayat were declared at the relevant time and accused no.2 Arun was Sarpanch and was leader of the other group. 8] Considering the evidence of these witnesses, we are satisfied that their evidence does not inspire confidence. The prosecution also relied upon recovery of axe at the instance of accused Nandu. PW 3 Rashid, who was panch to the recovery, deposed that the axe was kept in open place at the backside of a School. In the evidence of PW 1 Hiraman he deposed 6 that Baban was holding axe and, therefore, recovery at the behest of accused no.2 Nandu is doubtful. The prosecution has not explained as to how the axe could come in a possession of accused Nandu. Considering the evidence on record and totality of circumstances, learned Sessions Judge has acquitted the accused. 9] After hearing learned APP and learned counsel for the respondent, we are satisfied that the view taken by learned Sessions Judge is reasonable and possible view. It cannot be said that the view taken by learned Sessions Judge is unreasonable or perverse. As held by the Apex Court in the case of Caetano Piedade Fernandes Vs. Union of Territory of Goa, Daman & Diu, AIR 1977 SC 135, it is now settled law that if the view taken by the trial court is a reasonably possible view, the Appellate Court should not disturb an acquittal merely because it thinks that another view is better or more preferable. 10] In the result, Appeal is devoid of substance and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]