1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.56 OF 2008 1. Dhanyakumar @ Dhanaji s/o Gopal Bandgar, Age : 31 yrs., Occu.Agri., 2. Dada s/o Ambadas Bandgar, Age : 27 years, Occu.Agri., Both R/o Wadgaon (Deo), Tq. Tuljapur, Dist. Osmanabad ..APPELLANTS VERSUS * The State of Maharashtra ..RESPONDENT Smt. S.S. Jadhav, Advocate for the appellants; Mr K.S. Patil, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 20th January, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellants who stand convicted for an offence punishable under section 302 and 201 of the Indian Penal Code and sentenced to 2 imprisonment for life and to each pay fine of Rs.500/-, with a default stipulation of undergoing further R.I. for one year in the event of non payment of fine and R.I. for five years and to each pay fine of Rs.500/-, with a default stipulation of undergoing further R.I. for one year in the event of non payment of fine and additionally the original accused no.1 stands convicted for an offence punishable under section 323 of the Indian Penal Code and sentenced to S.I. for six months and to pay a fine of Rs.500/-, in default to undergo further S.I. for one year, by the Ad hoc Additional Sessions Judge, Osmanabad, by judgment dated 30.11.2007, in Sessions Case No.45 of 2007, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- An accidental death report came to be submitted in respect of death of deceased Pandit by his cousin Ashok. On the basis of the said report, A.D. No.60 of 2006 came to be registered at the Naldurg police station on 26.10.2006 and accordingly investigation/inquiry of the said accidental death came to be entrusted to P.W.11 P.S.I. Rajendra Bokade. P.W.11 P.S.I. Rajendra Bokade proceeded to the agricultural field of deceased Pandit Rajmane and drew the inquest panchnama of the dead body at Exh.25 in the presence of P.W.4 Pandit. The dead body was thereafter referred for post mortem examination and post mortem came 3 to be conducted by P.W.10 Dr. Surendra Madke. P.W.10 Dr. Madke noticed the following external injuries on the dead body of deceased Pandit :- 1. Incised wound of about 6x1x0.5 cm. obliquely placed on the palmar aspect of left hand extending up to web space between index and middle finger; 2. Abrasion 2 x 1 cm. on lateral end of right eyebrow; 3. Abrasion, 3 x 0.5 cm. above left clavicle; 4. Multiple abrasions, 1 x 1 cm. around the xiphisternum mostly on left side; 5. Contusion of about 20 x 4 cm. placed obliquely from left acromion towards xiphisternum; 6. Abrasion of about 2 x 1 cm. on posterior aspect of right elbow; 7. Contusion of about 10 x 4 cm. on antero lateral aspect of right thigh; 8. Contusion of about 8 x 4 cm. on antero lateral aspect of left thigh; 9. Contusion of about 6x4 cm. anterior aspect of left upper arm; 10. Contusion with intermittent abrasions over an area of about 30x20 cm. on back; 4 11. Total loss of anterior abdominal wall including skin, subcutaneous tissue and muscle layers extending from xiphisternum to pubic symphysis of size of about 20 x 20 cm. vertically and horizontally respectively, so that intestines are lying out side the abdominal cavity. Margins were irregular, brownish colour with presence of haematoma at places. He, therefore, opined that the injuries sustained by deceased Pandit were ante mortem injuries and according to him, injury no.1 could have been caused by sharp edged weapon while injuries no.2, 3 and 4 were likely to have been sustained by deceased in a scuffle. He further opined that injury no.5 was possible by blow of stick, while injury no.6 was possible in a scuffle. Injuries no.7, 8 and 9 were possible on account of hard and blunt object like stick, while injury no.10 was possible in a scuffle and injury no.11 was probably caused by sharp edged weapon. He, therefore, opined that cause of death was shock due to haemorrhage due to multiple abdominal organ injury. The post mortem report is at Exh.40. He opined that death must have occurred within 12 to 24 hours of the post mortem being conducted. The post mortem came to be conducted on 26.11.2006 at 4.30 p.m. Since the dead body had originally been noticed in the open space behind the Zilla Parishad school, the aforesaid spot came to be inspected and pieces of stick - Article no.1, came to be seized under a seizure memo. The complaint of P.W.1 Amar, son of deceased Pandit came to be scribed at Exh.18. On the basis of the report of P.W.1 Amar, an offence came to be registered under section 302, 201 read with sec. 34 of the Indian Penal Code, vide Crime No.212 5 of 2006. The clothes of deceased came to be seized under seizure memo at Exh.20. Statement of Ambadas, Police Patil of village Bornadiwadi came to be recorded and statements of other witnesses also came to be recorded. It appears that on the basis of the complaint of P.W.8 Kalpana, wife of accused no.1, offence vide Crime No.313 of 2006 under section 354, 324 and 452 of the Indian Penal Code came to be registered against deceased Pandit. Ultimately the accused came to be arrested after two days. During custodial interrogation, accused no.2 Namdeo expressed his willingness to point out the place where the sickle had been hidden and accordingly the memorandum at Exh.22 came to be recorded in presence of P.W.3 Kamalakar. Pursuant to the said memorandum sickle came to be recovered vide seizure memo at Exh.23. Accused no.2 ultimately came to be acquitted by the Trial Court. Further to the completion of investigation a charge-sheet against the appellants came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exh.8 came to be framed for offence punishable under section 302, 201 read with sec.34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined eleven witnesses. The defence of the appellants was of denial. 4. Before we advert to the submissions advanced before us by Smt. S.S. Jadhav, learned Counsel for the appellants and Shri K.S. Patil, 6 learned A.P.P. for the respondent - State, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.1 Amar, son of deceased Pandit states about his father leaving for the agricultural field on the day of the incident i.e. on 25.10.2006. He further states about his father deceased Pandit working in the agricultural field, especially watering the pulse crop. P.W.1 Amar states about going to the agricultural field and assisting his father in the agricultural operations and thereafter bringing a buffalo home and then milking the said buffalo. He states that his father thereafter was not seen alive. On the next day morning he was informed that the dead body of his father was lying in the open space near the Zilla Parishad school. He accordingly had gone to that place, which was a place used by the villagers for defecating. He had accordingly removed the dead body of his father to his agricultural land. He then states that he had learnt that the entire incident was known to P.W.2 Ambadas, a Police Patil of village Bornadiwadi. He had accordingly gone to P.W.2 Ambadas and had inquired from him. He states that meanwhile the police had arrived at the scene of the offence and had drawn the inquest and the scene of the offence panchnama. Thereafter his F.I.R. came to be scribed at Exh.18, on the basis of which offence was registered. Nothing of importance has been elicited in the cross-examination which would assist the prosecution case in any manner. 7 6. The pivot of the prosecution case revolves round the testimony of P.W.2 Ambadas, Police Patil of village Bornadiwadi and P.W.7 Bhaskar, who had given water to deceased Pandit when he was found lying injured. P.W.2 Ambadas states that since last 15 to 16 years he was working as the Police Patil of village Bornadiwadi. On the day of the incident i.e. on 25.10.2006 he had returned home in the evening after having worked in the agricultural land for the entire day. After taking his dinner he slept in the house and was awakened at 10.00 p.m. on account of hearing the talk of the villagers in a loud tone. He accordingly came out of the house and noticed the villagers proceeding towards Maroti temple. The villagers informed him that one Pandit Patil, resident of Wadgaon (Deo) had been assaulted and was placed near the Maroti temple and, therefore, P.W.2 went near Maroti temple. On reaching the Maroti temple he noticed injured Pandit Patil lying near the Maroti temple. He also noticed that Pandit Patil had sustained injuries on his back and blood was oozing from it. He further noticed the presence of the accused there. He inquired from them as to why they had thrown injured Pandit Patil at that place. The accused informed him that it was the problem of their village and they would attend to it. At that time Pandit Patil was requesting for water and accordingly P.W.7 Bhaskar was requested to bring water and Bhaskar accordingly provided water to Pandit Patil. Injured Pandit Patili drank some water and thereafter P.W.2 Ambadas told the accused to take Pandit Patil with them towards their village. Accused Dhanaji and accused Dada thereafter took Pandit Patil carrying 8 him between them. He states that on the next day he learnt that Pandit Patil had died. In cross-examination he has admitted as true that when he had gone near the Maroti temple at that time a crowd of villagers had already assembled there. He has admitted not to have informed the relatives of Pandit Patil or the police in respect of finding of Pandit Patil in an injured condition. Omission has been duly proved that he had not stated in his previous statement recorded on 26.10.2006 that son of Pandit Patil, namely P.W.1 Amar had met him and had inquired from him about the incident. 7. Prosecution has examined P.W.7 Bhaskar, a resident of village Bornadiwadi. P.W.7 Bhaskar states that he had proceeded towards Maroti temple and had noticed Pandit Patil lying in an injured condition. Since Pandit Patil asked for water he provided water from his house. Pandit Patil drank some water and thereafter P.W.7 Bhaskar returned home. He states that P.W.2 Ambadas, Police Patili of village was present. Both the accused told the Police Patil that they would take Pandit Patil along with them. The accused thereafter carried injured Pandit Patil with them. In cross-examination he has admitted that he was not acquainted with either of the accused. He has denied the suggestion that he had not noticed Pandit Patil with injuries near the Maroti temple. 9 8. The evidence, therefore, against the appellants/accused consists of the testimony of P.W.2 Ambadas and P.W.7 Bhaskar. The relatives of the appellants, namely P.W.8 Kalpana and P.W.9 Sushilabai did not support the prosecution and were declared hostile. Similarly, P.W.5 Shrinand and P.W.6 Mahadeo also did not support the prosecution and were declared hostile. The evidence principally, therefore, consists of the fact that deceased Pandit Patil was found having sustained injuries near the Maroti temple in village Bornadiwadi. The accused along with the other villagers were found present there. The accused had taken deceased Pandit Patil along with them. On the next day morning the dead body of deceased Pandit Patil was found in village Wadgaon (Deo). Smt. Jadhav, learned Counsel for the appellants has urged before us that there is absolutely no nexus between the finding of the dead body of deceased Pandit Patil and the accused carrying injured Pandit Patil along with them on the previous night. It is urged before us that since Pandit Patil had already sustained the injuries, the accused could not be said to have caused the injuries during the journey from Bornadiwadi to village Wadgaon (Deo). The learned A.P.P. has supported the judgment of the Trial Court and has prayed for dismissal of the appeal. 9. Undisputedly, there is no evidence whatsoever that it was the accused who had caused injuries to Pandit Patil when he was seen lying in an injured condition in village Bornadiwadi near the Maroti temple. There is no circumstantial evidence also which would point towards the 10 guilt of the accused or towards the accused being the authors of the aforesaid injuries. Though deceased Pandit Patil was in a condition to speak, no disclosure came to be made by him to the villagers in respect of the person or the persons who had caused injuries to him. Suffice it to say that he allowed himself to be carried by the accused in that injured condition. If there is no evidence whatsoever that the accused had caused injuries to deceased Pandit Patil, the mere fact that deceased Pandit Patil was in the company of the accused would pale into insignificance. It is not the case of the prosecution that deceased Pandit Patil had sustained some minor injuries and certain other major injuries came to be inflicted while deceased Pandit Patil was in the company of the accused. In the absence of such evidence, according to us there is no material/evidence against the accused in respect of involvement of the accused for an offence punishable under section 302 of the Indian Penal Code. According to us, the accused are, therefore, entitled to be given the benefit of doubt. 10. In the result, therefore, this Criminal Appeal is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they 11 were charged and convicted. 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. ( SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/cria56.08