1 Criminal Appeal No.333 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.333 OF 2010 1. Sajjan Galfa Rankhamb, Age-53 years, Occu-Labour, 2. Kakasaheb Sajjan Rankhamb, Age-28 years, Occu- Labour and Agriculture, Both R/o.Sonegaon, Tq.Osamanabad, Dist.Osmanabad. APPELLANTS VERSUS The State of Maharashtra RESPONDENT Mr.R.N.Dhorde, learned counsel for the appellants. Mr.D.V.Tele, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 24/02/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Both the appellants, who stand convicted for an offence punishable u/s. 302 r/w. 34 of The IPC and sentenced to suffer life imprisonment and to pay fine in the sum of Rs.1000/- each with default stipulation of undergoing further rigorous imprisonment for 2 months in Sessions Case No.63/2007 by judgment and order dated 2 Criminal Appeal No.333 of 2010 24/08/2010 by Sessions Judge, Osmanabad, have questioned the correctness of their conviction and sentence by way of present appeal. 2. Even though this appeal is of the year 2010, while rejecting the bail application of the appellants on 29/09/2010, leave was granted to the appellants to file private paper book within 8 weeks, with further liberty to apply for early hearing of the appeal after filing of the private paper book. Accordingly, an application was moved by the appellants on 04/02/2011 for early hearing of the appeal, hence the appeal was listed for final hearing out of turn. 3. Such of the facts as are necessary for the decision in this appeal can be summarized as follows : On 21/04/2007, on the complaint (Exh.27) of Macchindra Maruti Gophane (P.W.No.1) recorded by Head Constable Naikwade, attached to out post at Yedshi of Osmanabad Rural Police Station, an offence was registered in Osmanabad Rural Police Station vide CR No.37/2007 for an offence punishable u/s. 302 r/w. 34 of The IPC against the appellants by Dilip Pandharinath Gaikwad (P.W.No.16). Investigation in the said CR was entrusted to P.I.Ingale (P.W.No.19). 4. During the investigation, on 22/04/2007, he visited the spot of offence, situated in the agricultural field no.205 at Gaddeodhari and in presence of witnesses, he drew spot panchnama Exh.55. From 3 Criminal Appeal No.333 of 2010 the said field, he had collected plain soil, blood mixed soil and one wooden khil. Thereafter, on that day he drew inquest panchnama on the dead body of Datta Gophane (Exh.65) in Primary Health Centre, Yedshi and referred the dead body for post mortem. 5. Dr.Shirish Vinayakrao Katre (P.W.No.6) conducted autopsy on the dead body of deceased Datta. While conducting the autopsy, he had noticed following external injuries. 1. Contused lacerated wound over left temporal bone, size 7 x 4 x 3 cm. 2. CLW over right temporal bone, 4 x 2 x 1 cm. 3. Contusion over left shoulder joint. 4. Contusion over right and left clavicle. 5. Abrasion over right palm. 6. Contusion over left and right scapula, supra scapular, infra scapular region and also on inter scapula region. 7. Abrasion over left scapula region and left supra scapula region. 8. Contusion over left shaft of femur. 9. Contusion over left hip joint. 10.Fracture over left shaft of femur and pelvic bones i.e. compound fracture. 11. Fracture over left scapula Humural fracture over shaft of femur. He also noticed following internal injuries. Contused lacerated wound on left temporal bone size 7 x 3 cm and on right temporal bone. There was compound 4 Criminal Appeal No.333 of 2010 fracture of skull over left temporal bone. Brain matter was pale. Thorax examination reveal large vessel was collapse but heard was empty. According to him, cause of death of deceased was due to compound fracture of skull (temporal bone) with hemorrhagic shock and hypovolmic shock . Accordingly he had prepared post mortem notes at Exh.34. 6. During the investigation, he recorded statements of witnesses including statement of Dhanashri Gophane (P.W.No.2) i.e. wife of deceased, Tanaji Subrao Rankhamb (P.W.No.3), Bhairu Shripati Rankhamb (P.W.No.10), Arun Bhau Rankhamb (P.W.No.4), Gorakh Macchindra Gophane, brother of deceased (P.W.No.5) and others. In the night of 22/04/2007, both the appellants came to be arrested under arrest panchnama (Exh.78 and 79). Clothes on the person of appellants were seized under seizure panchnama Exh.61 and 62, drawn in presence of panch witnesses. During the investigation, he also seized clothes on the person of deceased under seizure memo Exh.49. During the investigation, while in police custody, on 27/04/2007, appellant Sajjan shown his willingness to make disclosure statement, which was recorded in presence of panch witnesses (Exh.52), leading to the discovery of one stick, which was seized under seizure panchnama Exh.59, drawn in presence of witnesses by Swaranand Bhoomkar (P.W.No.17). During further 5 Criminal Appeal No.333 of 2010 investigation, on 05/05/2007, Investigation Officer had recorded statement of 4 witnesses including the statement of Hanumant Pandurang Gophane (P.W.No.8). On 06/06/2007, seized property was forwarded to Chemical Analayser through carrier police constable Umakant Karpe (P.W.No.7) alongwith covering letter Exh. 40. Appellants were referred to Civil Hospital Osmanabad on 22/04/2007 for collection of their blood sample for blood grouping, which was collected by Dr.Balasaheb Hariba Shinde (P.W.No.18). Blood sample was sent to Chemical Analyser, of which reports are at Exh.43 and 44. Blood group of appellant Sajjan is ‘O’, while blood group of appellant Kakasaheb is ‘A’. On 14/07/2007, P.W.No.19 recorded statements of 3 more witnesses. On completion of investigation, charge sheet was filed by him in the Court of C.J.M. Osmanabad. 7. On committal of the trial to the Court of Sessions, learned Trial Court framed the charge against the appellant at Exh.15 for an offence punishable u/s. 302 r/w. 34 of The IPC, to which appellants pleaded not guilty and claimed to be tried. During the trial, to prove the guilt of the appellants, prosecution has examined total 20 witnesses. Defence of the appellants is of total denial. To prove the defence taken by the appellants, 5 defence witnesses are examined, but those witnesses are not related to the incident dated 21/04/2007. On appreciation of the evidence of prosecution, and mainly relying on the evidence of P.W.No.3 Tanaji Rankhamb, P.W.No. 6 Criminal Appeal No.333 of 2010 4 Arun Rankhamb and P.W.No.10 Bhairu Rankhamb, who claimed to be the direct witnesses to the incident in question, coupled with medical evidence and the evidence of Chemical Analyser, Trial Court convicted the appellants for the charge u/s. 302, r/w. Section 34 of The IPC, which conviction and sentence is impugned in this appeal. 8. It is in the evidence of P.W.No.3 Tanaji Rankhamb that on 21/04/2007, deceased Datta met him in the village and told him that he want to purchase she-goat for sacrifice. Then they went to the field of one Sambhaji Jetithor to know whether he want to sell his she-goats. After they reached the field of Sambhaji, Datta went to the bore-well to drink water. Appellants came there with stick and khil. They raised quarrel with deceased on the ground why deceased often used to annoy them. Appellant Sajjan assaulted Datta with stick, while Kakasaheb assaulted Datta with Khil. He got frightened and ran towards the village. On his way, he saw Bhairu Shripati (P.W.No.10) and Sanjay Jetithor, who were coming on motor-bike from village. After he reached at home, he informed telephonically to one Chandrakant Pandurang Gophane. In the evening, he learnt that Datta is no more. He had stated in his cross examination that he is doing business in the name and style of Komal Sound Services. Marriage of cousin of his maternal uncle was scheduled on 21/04/2007, at Sonegaon. He had admitted that he has provided speakers in the 7 Criminal Appeal No.333 of 2010 said marriage. He had admitted that Sajjan is his cousin. Appellant Kakasaheb is son of appellant Sajjan. His relations with appellants are not cordial due to dispute over agricultural field. So also criminal cases are pending between female members in their family. He had also admitted that he had not tried to intervene and rescue the quarrel and he had not informed the incident to the Police Patil or to the Village Sarpanch or to any other close relative of deceased Datta. 9. It is submitted that conduct of this witness is doubtful because even though he claimed to be the good friend of deceased Datta, he had not tried to intervene the quarrel. He has also not informed the incident to the family members of deceased and brought the family members to the spot. He has also not informed the incident to P.W.No.10 Bhairu Shripati Rankhamb and Sanjay Jetithor, to whom he saw coming on motor-bike from the village. In these circumstances, his presence at the time of alleged incident is highly doubtful and no reliance can be placed on his testimony. 10. It is in the evidence of P.W.No.4 Arun Rankhamb that on 21/04/2007, he attended the marriage of Kisan Bhima Vyakar. Thereafter at about 2.00 p.m., he had been to his field, which is adjacent to the field of appellant Sajjan and Sanjay Jetithor. He came to his field for watering the ground-nut crop standing in his field. He has further stated that at about 4.00 p.m. or so, Sanjay 8 Criminal Appeal No.333 of 2010 approached him and informed him about the incident of assault by appellants to Datta, which deceased Datta had narrated to him. Thereafter he and Sanjay went to the spot. He saw that appellants were passing from their field. He had further stated that he saw Datta lying in the injured condition in the field of Sanjay and was requesting to save him. Datta further told that he was assaulted by appellants. Then they went to search a vehicle, but the vehicle was not available. Hence they went to village Yedshi. On their way back, Bhairu met them and informed that Datta was no more. In his cross examination, omission was proved that he had not stated in his statement before Police that Sanjay told him about the incident, which was narrated to Sanjay by Datta himself. He had further admitted that his statement was recorded by police after last rituals of Datta was over. He denied the suggestion that he is on cross terms with appellants as appellants have purchased the land of deceased in the year 2005, which he intends to purchase. 11. It is submitted on behalf of appellants that from the proved omission, it is clear that this witness have no knowledge that Datta was lying in injured condition in the field, hence he went to the spot and verified the situation. 12. It is in the evidence of P.W.No.10 Bhairu Rankhamb that in the year 2007, he was working as yearly labourer in the field of Sanjay, 9 Criminal Appeal No.333 of 2010 which land is situated at Gaddeodhari Shivar. Agricultural field of appellants is adjacent to his field. Deceased Datta was residing in village Songaon, while his brother Gorakh was residing in the field of appellants. He had further stated in his evidence that on 21/04/2007, he and Sanjay had been to village Batambra to attend the marriage of daughter of Gorakh on motor bike of Sanjay. At about 4.00 p.m. or so, they returned from marriage. Standing crop of ground-nut was there in the field cultivated by him. He heard shouts, and saw that appellants were running towards their field. He then went towards the standing crop and found that Datta was lying their in the pool of blood. Datta was shouting for help. Datta told him that appellants have assaulted him. He had further stated that at that time Sanjay was present in the adjoining field. He went to Sanjay and informed about the incident. Then Sanjay went to village to bring the vehicle, and again came to Datta, but found Datta dead. He had admitted in his cross examination that the appellants have purchased agricultural land of deceased under registered sale deed, to which he is an attesting witness. Further he had denied that he and Arun (P.W.No.4) were cultivating that land on batai basis. He had further denied that there is inter-se dispute between them on account of land possessed by him and the appellants. He had further stated that he has lodged the complaint on 30/03/2009 in Osmanabad Rural Police Station about the threats given by 10 Criminal Appeal No.333 of 2010 appellant Sajjan and his another son Premnath. 13. We have heard learned counsel for appellants and learned A.P.P. for respondent State. Learned A.P.P. supports the reasoning recorded by the Trial Court to convict the appellants. 14. It is urged by the learned counsel for appellants that on clear reading of the evidence of these witnesses, they destroyed the evidence given by each of them instead of corroborating each other. It is also urged that the conduct of P.W.No.3 Tanaji Rankhamb appeared to be improbable as according to him, he accompanied the deceased to the field of Sambhaji, where the alleged incident of assault took place. It is also brought to our notice that after witnessing the alleged incident, P.W.No.3 Tanaji, instead of helping his friend Datta, ran away from the spot. Even if it is accepted that due to fear he ran away from the spot instead of helping victim Datta, but as according to him, on his way to village, he saw P.W.No.10 Bhairu and Sanjay were coming from the village,then also he had not stopped them and informed about the incident witnessed by him, and had not requested to help Datta, who was lying in the field of Sambhaji. It is also brought to our notice that after he reached in the village, he has not called the relatives of Datta. Thus we are in agreement with the submissions of learned counsel for appellants that no reliance can be placed on the evidence of P.W.No.3 Tanaji. It is also brought to our notice that the evidence of P.W.No.4 Arun and 11 Criminal Appeal No.333 of 2010 evidence of P.W.No.10 Bhairu, if read together, then it will falsify the evidence of each other. It is also brought to our notice from the evidence of P.W.No.4 Arun that he came to know about the assault on Datta from Sanjay that Datta informed Sanjay that appellants have assaulted him, which is an proved omission in his evidence. It is also brought to our notice that P.W.No.4 Arun has not given the reference of presence of P.W.No.10 Bhairu, so also in the evidence of P.W.No.10 Bhairu, there is no reference about the presence of P.W.No.4 Arun. It is also brought to our notice from the evidence of P.W.No.10 that he reached near the injured on hearing shouts of Datta, and then he informed about the incident to Sanjay, who was present in the adjoining field. According to him, thereafter Sanjay went to village to see the availability of the vehicle. Thus the evidence of P.W.No.3 Tanaji, P.W.No.4 Arun, and P.W.No.10 Bhairu is of such a nature that if evidence of either of them is accepted, then it will falsify the evidence of other. If it is so, no reliance can be place on the evidence given by these witnesses about the incident witnessed by them. 15. Apart from the evidence of these witnesses, incriminating circumstances against these appellants are recovery of weapon of khil from the spot of incident which was seized under the panchnama Exh.55, and recovery of stick at the instance of appellant Sajjan, recovered under the panchnama at Exh.59. To link these weapons with the crime, those weapons were not referred to Chemical Analyser for their examination. So also, blood found on the shirt of 12 Criminal Appeal No.333 of 2010 Sajjan and on the shirt of appellant Kakasaheb. Blood found on the pant of appellant Sajjan is of blood group ‘O’, when his blood is also of blood group ‘O’. 16. Thus on re-appreciation of the evidence of the alleged eye witnesses, it seems that it is not reliable and the circumstantial evidence about the report of Chemical Analyser is unable to establish beyond reasonable doubt that the appellants are the authors of the injuries found on the person of deceased Datta. In view of this, the appellants are entitled for the benefit of doubt. 17. In the result, the Criminal Appeal is allowed. The conviction of the appellants is quashed and set aside and the appellants are acquitted of the offences with which they were charged. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/FEB. 2011/cri.appeal 333-10