1 Cri.Appeal No.108 of 1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.108 OF 1993 WITH CRIMINAL REVISION APPLICATION NO.117 OF 1992 (1) CRIMINAL APPEAL NO.108 OF 1993 The State of Maharashtra, through Dilip Yeshwant Somwanshi, r/o Astha (Kasar), Tq. Omerga, Dist. Osmanabad ..APPELLANT (Ori. Complainant) VERSUS 1. Pandu Apparao Somwanshi, Age 45 yrs., 2. Vithu Apparao Somewanshi, Age : 48 years, 3. Ankush Apparao Somewanshi, Age 39 yrs., All R/o Ashttha (Kasar), Tq. Omerga, Dist. Osmanabad ..RESPONDENTS Mr B.V. Wagh, A.P.P. for the appellant; Mr B. R. Kedar, Advocate holding for Mr S.B. Talekar for respondents no.1 to 3. WITH (2) CRIMINAL REV. APPLICATION NO.117 OF 1992 2 Cri.Appeal No.108 of 1993 Dilip Yashwant Somwanshi, R/o Ashta (Kasar), Tal. Omargaon, Dist. Osmanabad ..PETITIONER (Original Complainant) VERSUS 1. Pandu Apparao Somwanshi, Age : 50 yrs., 2. Vithu Apparao Somwanshi, age : 48 yrs., 3. Ankush Apparao Somwanshi, age : 39 yrs., All r/o Ashta (Kasar), Tal. Omerga, Dist. Osmanabad 4. The State of Maharashtra ..RESPONDENTS Mr B.R. Kedar, Advocate holding for Mr S.B. Talekar for respondents no.1 to 3; Mr B. V. Wagh, A.P.P. for respondent no.4. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 20th December, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant - State has filed the present appeal challenging the judgment of the Additional Sessions Judge, Osmanabad, dated 4.3.1992, in Sessions Case No.53 of 1990, acquitting the 3 Cri.Appeal No.108 of 1993 respondents for offence punishable under section 302, 201 read with sec. 34 of the Indian Penal Code. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.8 P.S.I. Shahadeo Giri, who was attached to the Murum police station, recorded the first information report on 23.7.1989 lodged by P.W.1 Dilip at Exh.41. On the basis of the said first information report, he registered an offence vide Crime No.68 of 1989 under section 302, 201 read with sec. 34 of the Indian Penal Code. The investigation of the said crime was entrusted to P.W.8 P.S.I. Giri. On the next day, i.e. on 24.7.1989 he visited the scene of the offence and drew the scene of the offence panchnama at Exh.45 in the presence of P.W.4 Pandurang. From the scene of the offence he attached one rope under the seizure memo. Inquest of the dead body of deceased Ambadas came to be drawn vide Exh.31. Statements of witnesses came to be recorded. The Medical Officer had been called at the place where the dead body was discovered and accordingly the clothes on the person of deceased Ambadas came to be seized vide seizure memo at Exh.32. Post mortem on the dead body of deceased Ambadas was performed by P.W.5 Dr. Ingale. P.W.5 Dr. Ingale noticed that the right ear of the deceased was partly rotten. He noticed abrasion on both the cheeks with clotted blood in the left ear. Trachea cartilage had been broken. He, therefore, opined 4 Cri.Appeal No.108 of 1993 that cause of death was asphyxia due to strangulation. The post mortem report is at Exh.47. The provisional cause of death is at Exh.48. He further opined that injury to the trachea was possible by pressing throat with thumbs of both the hands and the injury was sufficient in ordinary course of nature to cause death. P.W.8 Shahadeo has further stated that after recording the first information report he had gone to the village and by beat of drums had informed the villagers to give information about the incident. However, it appears that no one had appeared before the police to give information about the death of deceased. Further investigation was entrusted to P.W.9 P.S.I. Kadri. He recorded the supplementary statements of the prosecution witnesses and drew the scene of the offence panchnama and attached Cap and Chappals from the ditch after the water had been pumped out. The said panchnama is at Exh.33. He forwarded the articles to the Chemical Analyser. The report of the Chemical Analyser is at Exh.60. Further to the completion of investigation a charge-sheet against the respondents came to be submitted. 3. On committal of the case to the Court of Sessions, Trial Court vide Exh.26 framed charge against the respondents for offence punishable under section 302 read with sec. 34 and 201 read with sec. 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. 5 Cri.Appeal No.108 of 1993 4. Prosecution in support of its case examined nine witnesses. The defence of the respondents/accused was of denial. The Trial Court accepted the evidence of the prosecution witnesses and came to the conclusion that the prosecution had proved the offence against the accused beyond reasonable doubt and, therefore, acquitted the accused. The State thus being aggrieved by the acquittal of the accused has filed the present appeal. 5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Dilip, brother of deceased Ambadas and the first informant states that the accused are his cousins. He states that he has three paternal uncles and their names are Babu, Tukaram and Appa. P.W.1 Dilip further states that they have purchased an agricultural field from their uncle Babu and on that count the accused used to quarrel with them. P.W.1 Dilip states about an incident prior to the death of Ambadas wherein the accused had assaulted his brother Ambadas. Ambadas had lodged a complaint against the accused, but the case was ultimately compounded. He states that about 5 to 6 months after the compounding of the case, accused Pandu had abused him by stating that he would break his hands and legs. Dilip states that his father had told him to ignore the incident. He further states that on the day of the incident, at 6 Cri.Appeal No.108 of 1993 about 8.00 to 9.00 p.m. his brother Ambadas had gone to the field for keeping a vigil in the field. On the next day P.W.1 Dilip had gone to the cattle shed for milking the cattle and had noticed that bedding of Ambadas had been spread but Ambadas was not present. Dilip, therefore, returned home and informed his parents that Ambadas was not in the cattle shed. All the relatives searched for Ambadas but invain. Dilip states that thereafter dead body of Ambadas was found floating in a ditch in the field of one Tukaram Suryawanshi. The ditch was about 6 ft. deep and was filled with water. Dilip states that dead body of Ambadas was taken out of the ditch and he had noticed that legs and hands of Ambadas were tied by rope and Dhoti. Stones had been filled in his shirt. The hands and legs of Ambadas were untied and he informed his parents. Thereafter a report came to be lodged by P.W.1 Dilip at Exh. 41. In cross-examination he has admitted that the property had been partitioned amongst his father and his brothers about 40 years back. He has also admitted as true that his uncle resides separately since the partition. He has also admitted that in a case instituted by his deceased uncle Babu against him and his father, accused Pandu had been cited as a prosecution witness. He has also admitted as correct that his uncle Babu had filed another case against him and others for assaulting Babu. He has further admitted that on the night of the incident Ambadas had gone to the cattle shed and since that day he was not seen. He has admitted that they had not lodged a complaint with the police immediately on noticing that Ambadas was missing. He has also 7 Cri.Appeal No.108 of 1993 admitted that every person in the village was aware that Ambadas was missing. He has admitted that the accused were present ion the village. 6. Prosecution has examined P.W.7 Yashwant, father of deceased Ambadas. P.W.7 Yashwant states that his brother Babu had sold about one acre land to him for about Rs.5,000/- and since then the accused began to quarrel with him. He states that the accused used to assault him under the influence of liquor and he had accordingly lodged complaints against them. He states that once accused Pandu had threatened to break his hands and legs but he told his son to ignore the incident. he states that on the day of the incident Ambadas left for the field at about 9.30 p.m. after taking his dinner. He further states that on the next day when he had gone to the field he had noticed the bedding of Ambadas but Ambadas was not present. Despite searching for Ambadas, whereabouts of Ambadas were not found. He states that he had gone to the field where there was a ditch and had noticed the dead body and had seen the dead body of Ambadas. In cross-examination he has stated that he had suspected that Pandu had committed murder of Ambadas. 7. Prosecution has examined P.W.2 Namdeo, who claims to have seen the deceased alive in the company of the accused. He states that the cattle shed belonging to Ambadas was adjacent to his cattle shed. He states that on the day of the incident he had retired to bed at about 9.00 8 Cri.Appeal No.108 of 1993 p.m, and at about 12.00 midnight he had awakened in order to answer the call of nature. At that time he had seen accused Pandu, accused Vithal and accused Ankush going to the cattle shed of Ambadas. After some time he heard a shriek and thereafter he came out of the cattle shed and had noticed the three accused proceeding away from the cattle shed with one accused carrying a bundle on his back. In cross- examination he has admitted that he has a house in the village and has admitted that he had gone to see the dead body of Ambadas. He has also admitted as true that the police had come to their village and were camping for two days. He has admitted that his statement was recorded after two months of the incident. He has admitted as correct that after the incident he had not disclosed to any one that he had seen the three accused while entering and leaving the cattle shed of Ambadas. He has admitted that he had learnt that P.W.1 Dilip had lodged a complaint against the accused but even then he did not tell any one that he had seen the accused near the cattle shed of Ambadas. 8. Prosecution has also examined P.W.3 Shivaji, who states that on the day of the incident at about 9.15 p.m. he had gone to the shop of one Mahadeo Chaudhari and at about 12.00 midnight he awoke in order to answer call of nature and had seen the three accused going towards their house. He states that on the next day morning he learnt from the father of Ambadas that Ambadas was missing. 4 to 5 days thereafter dead body of Ambadas was found in a ditch. He has admitted that he had 9 Cri.Appeal No.108 of 1993 gone to see the dead body. In cross-examination he has admitted that on seeing the dead body he had informed P.W.7 Yashwant that he had seen the accused on the night of the incident. He has admitted that P.W. 7 Yashwant, father of deceased, is his relative. He has admitted not to have disclosed about this fact to any one else except P.W.7 Yashwant till his statement was recorded by the police. 9. The evidence of P.W.2 Namdeo and P.W.3 Shivaji, according to us, is extremely artificial and really tasks human credulity for its acceptance. Both the witnesses claimed to have seen the accused on the night the deceased was last seen alive but yet, had not ventured to inform the relatives of the deceased. The accused are alleged to have committed murder of deceased Ambadas in between 19.7.1989 to 23.7.1989. We, therefore, find that there is no reliable evidence whatsoever in respect of the deceased being last seen alive in the company of the accused. It is obvious that suspicion howsoever strong cannot take the place of proof. In cases resting on circumstantial evidence, it is essential for prosecution to establish not only each and every circumstance on which it proposes to rely, but the circumstances so proved should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In the present case, therefore, according to us, the prosecution has fallen short of proving the offence against the accused beyond reasonable doubt. The benefit of doubt given by the Trial Court in the said circumstances cannot 10 Cri.Appeal No.108 of 1993 be said to be misplaced. 10. With the assistance of the learned A.P.P. and the learned Counsel for the respondents/respondents we have perused the evidence as well as the findings recorded by the Trial Court. Upon such perusal we do not notice any perversity in the reasoning of the Trial Court to warrant any interference in this appeal against acquittal. The view taken by the Trial Court is a possible view to be taken on the basis of the evidence on record. In that light of the matter, therefore, there being no merit in the State appeal, the State appeal is dismissed confirming the acquittal of the respondents. Consequently, Criminal Revision application No.117 of 1992 is also dismissed. (A. V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria108.93