1 crappeal-707-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.707 OF 1991 The State of Maharashtra ..Appellant Vs. 1. Govind Narayan Jarag, 2. Ananda Narayan Jarag, 3. Sarjerao Narayan Jarag, 4. Bajirao Ganu Jarag ..Respondents ......... Mr.H.J.Dedhia, for appellant. Mr.S.A.Ingawale, for respondent nos.1 to 4. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 7th SEPTEMBER, 2010. JUDGMENT (PER R.G.KETKAR, J.) : 1] This appeal is preferred by State challenging the judgment and order dated 12 th August, 1991 passed by the learned 2 nd Addl. Sessions Judge, Kolhapur in Sessions Case No.114 of 1990. By that judgment, learned Sessions Judge acquitted the respondents original accused of the offence punishable under Section 302 read with Section 34 Indian Penal Code, 1860 (for short `IPC’). Respondent nos.1 to 4 hereinafter referred as accused nos.1 to 4, respectively. The facts, giving rise to the filing of 2 crappeal-707-91.sxw appeal, are as under. 2] PW 3 Shivaji Lakhu Jarag, informant is uncle of deceased Venkat Shivaji Jarag, accused no.1 Govind Narayan Jarag, accused no.2 Ananda Narayan Jarag, accused no.3 Sarjerao Narayan Jarag and accused no.4 Bajirao Ganu Jarag. Deceased Venkat was residing at Jaragwadi which is a hamlet of village Mahe. There was dispute pertaining to the land of Dhokmal of Mauje Mahe, Tq.Karvir. Said land was originally belonging to Baburao s/o.Krishnarao Sarnaik from Kolhapur. Earlier the said land was cultivated by the father of and uncle of deceased Venkat. However, from the year 1976, the said land was cultivated by father of deceased Venkat and uncle of accused no.2 Ananda and, thus, there was dispute between accused no.2 Ananda and deceased Venkat over the said land. Seven years prior to the incident, accused no.2 Ananda and others had beaten father of Venkat on account of dispute over the said land. Thereafter, within a year, the deceased and his companions committed murder of the father and uncle of Ananda in broad day light. Deceased Venkat and his companions were prosecuted, convicted and sentenced by the Sessions Case. Deceased Venkat preferred an appeal in this Court and, subsequently, he was enlarged on bail. Even, by that time, the dispute over the said land was going on. 3] It is the case of prosecution that on 30 th March, 1990 informant PW 3 Shivaji had gone to the house of one Sunil Vasant Jarag of Mahe for attaining 12 th day ceremony of his deceased father. Since no one had come to the house of Sunil in the morning, PW 3 Shivaji went towards Chavdi 3 crappeal-707-91.sxw when he found accused no.1 Govind holding was holding an axe. Accused no.4 Bajirao came there. He too was holding axe in his hand. PW 3 Shivaji asked them as to whether where they were going in the early morning. It was about 7:30 am. Accused no.1 Govind told him that they were bringing branches of `Chiwa’. Accused no.1 Govind and accused no. 4 Bajirao proceeded towards the dairy and PW 3 Shivaji started towards the house of Sunil. After sometime, PW 3 Shivaji heard shouts `Melo Melo’ from his backside. He turned to his backside and saw that motorcycle of Venkat had fallen down and Venkat had placed both hands on the right side neck and started to run through a middle lane. PW 3 Shivaji saw an axe in the hands of accused no.1 Govind bleeding and the blood on the blade of axe was trickling down. Accused no.1 Govind and accused no.4 Bajirao were running after the deceased Venkat through a middle lane. Therefore, PW 3 Shivaji came running to the starting point of a middle lane. He saw accused no.2 Ananda and accused no.3 Sarjerao were coming by holding axes in their hands from the opposite side of deceased Venkat. Accused no.2 Ananda kept the axe on the ground and grappled with the deceased Venkat and felled him down. Immediately, accused no.3 Sarjerao gave a blow of axe on the head of deceased Venkat. Accused no.1 Govind and accused no.4 Bajirao also came running there and they also started to assail the deceased Venkat. On hearing commotion, Kerba s/o.Mahadev, Akkatai w/o.Shankar Patil and wife of one Chandar Patil came on the spot. All the accused fled away along with axes. PW 3 Shivaji went near the deceased and found that he was dead on the spot. After sometime, wife of deceased, sister of deceased and other members of family arrived there. PW 3 Shivaji made oral complaint to the police about the incident, report to 4 crappeal-707-91.sxw that effect was made at exhibit 27 at about 12.05 pm. On the basis of said complaint, offence punishable under Section 302 read with 34 Indian Penal Code was registered being Crime No.77 of 1990 at exhibit 42. Investigating Officer PW 10 Narendra Waghmle went to the spot. Inquest (exhibit 12) was prepared in the presence of panchas on the spot. Photographs of the dead body were taken and the dead body of Venkat was sent for post mortem. The articles lying on the spot of offence were seized and panchnama exhibit 15 was prepared to that effect in the presence of panchas. All the accused were arrested on 2 nd April, 1990 and the samples of blood of the accused nos.1 to 4 were taken and sent to Chemical Analyser for examination. C.A. report was received and produced at exhibits 19 to 22. 4] On 5 th April, 1990 accused led Investigating Officer and panchas. At his instance axes and clothes were seized exhibit 18. On 9 th June, 1990, axes, clothes of accused and deceased, earth mixed with blood and sample earth sent to the Chemical Analyser for examination. The Chemical Analyser’s report is produced at exhibits 44 and 45. PW 8 Dr.Harishchandra Patil, Medical Officer performed the post mortem. He noticed 21 injuries on the dead body of Venkat and submitted post mortem report exhibit 38. After completing the investigation, the Investigating Officer submitted the charge sheet against all the accused in the court of Judicial Magistrate F.C., Court No.1, Kolhapur. On 7 th July, 1990 learned Judicial Magistrate F.C., in turn, committed the case to the Court of Sessions, Kolhapur for trial. The charge was framed at exhibit 2 under Section 302 read 34 IPC against accused nos.1 to 4. They pleaded not 5 crappeal-707-91.sxw guilty and claimed to be tried. 5] In support of the case, the prosecution examined 10 witnesses. The prosecution mainly relied upon the testimony of eye witnesses to the incident namely PW 4 Radhabai and PW 5 Akkatai. The informant PW 3 Shivaji turned hostile. However, the prosecution could not succeed to bring out the truth and, consequently, learned Sessions Judge discarded the testimony of PW 3 Shivaji. Considering the material on record, learned Sessions Judge acquitted all the accused. It is against this judgment and order the State of Maharashtra preferred this appeal. 6] We have heard Mr.H.J.Dedhia, learned APP in support of the appeal and Mr.S.A.Ingawale, learned counsel for respondent nos.1 to 4. With the assistance of learned counsel for appearing for the parties, we have gone through the evidence on record. 7] The prosecution mainly relied upon the evidence of PW 4 Radhabai and PW 5 Akkatai who are the eye witnesses to the incident. PW 4 Radhabai deposed that at about 7 am she had gone to the dairy and after giving milk in the dairy she came out. Her brother­in­law Venkat was shouting in the middle lane. She ran towards the middle lane and saw accused no.1 and other accused assaulted Venkat with axes in front of house of one Shri.Parit. All the accused had came from the eastern side. She narrated the incident to her sister and father. In the cross­examination, she deposed that after the incident, she went to the house of Lahu and narrated to the members of family of Lahu that accused assaulted Venkat 6 crappeal-707-91.sxw and they should go to see him. In the cross­examination, PW 4 Radhabai admitted that she did not know the names of assailants. She also felt ignorance about the murder of Narayan and Santaram, father and uncle of accused nos.1 to 3, and that her husband was prosecuted for their murder and sentenced for imprisonment of five years. Learned Sessions Judge noted her evidence in paragraph 12 of the impugned judgment. He observed that the prosecution admitted that husband of PW 4 Radhabai was co­accused along with deceased Venkat for committing murder of father and uncle of accused 1 to 3. Learned Sessions Judge found that she deposed against the accused persons out of grudge and inimical feelings and she had no actual knowledge of the incident. He, therefore, came to the conclusion that her evidence was not trustworthy. We are agree with the learned Sessions Judge that the evidence of PW 4 Radhabai does not inspire confidence. 8] In so far as the evidence of PW 5 Akkatai is concerned, at the time of incident, she was cooking in her house. Deceased Venkat is her real cousin. In the cross­examination, she deposed that she knew that Narayan and Santaram, father and uncle of accused nos.1 to 3 are expired. She, however, felt ignorance as to for what reason deceased Venkat was in jail. She further admitted that in order to come out of her house, she has to come from a portion of the house of Balu and Chander. There were four members in the family of Balu and two members in the family of Chander. None of the members from the family of Balu and Chander came out of house on hearing shouts. She admitted that none of the persons from the house of Balu and Chander came out. She further admitted that none of 7 crappeal-707-91.sxw the persons from the houses in the lane came out. Further this deposed that she was running along with the assailants. She did not intervene and did not ask the accused not to beat the deceased. She did not remember as to how accused no.2 Ananda had fell down the deceased as she also had not seen deceased Venkat by touching his body as to whether he was dead or alive. When the police arrived, she was near the dead body of Venkat. However she did not state anything to police. If at all PW 5 Akkatai claimed to have witnessed the incident as also she was near the dead body of Venkat, when police arrived, naturally she would have disclosed the names of assailants to the police. Considering her testimony, we are satisfied that she cannot be believed as an eye witnessed. Considering the contradictions and omissions in her testimony, it does not inspire confidence. This aspect was considered by the learned Sessions Judge in paragraph nos.9 to 11 of the impugned judgment. 9] The prosecution also examined PW 8 Dr.Harischandra Patil. He deposed that there was no incised wound on chest, abdomen and frontal portion of the dead body of deceased Venkat. The testimony of PW 5 Akkatai in respect of injuries sustained by deceased Venkat is contradicted by medical evidence of PW 8 Dr.Harishchandra Patil. 10] The prosecution has also relied upon the evidence of PW 6 Sushila, real sister of the deceased Venkat. She deposed that she learnt about the incident from PW 4 Radhabai. However, PW 4 Radhabai nowhere stated in her evidence that she had informed the incident to PW 6 Sushila. She also claimed that all the accused were standing near `Limb tree’ in front of the 8 crappeal-707-91.sxw office of Gram Panchayat while she was going. According to her, they were holding axes stained with blood. Considering this part of her testimony, it is improbable that the accused, after commission of offence, will stand in front of the office of Gram Panchayat along with axes that were stained with blood. It is, therefore, not possible to rely upon her testimony. The prosecution has also relied upon the evidence of PW 2 Ananda Ramchandra Sabale, who was examined as witness in respect of discovery of clothes and axes alleged to have been concealed by accused no.1. Learned Sessions Judge considered his evidence in paragraph 14 and came to the conclusion that PW 2 Ananda was not accompanied with the Investigating Officer PW 10 Narendra at the time of recording disclosure statement made by accused Govind. Learned Sessions Judge came to the conclusion that the presence of PW 2 Ananda Sabale at the time of recording disclosure statement as also recovery of clothes and weapons, was extremely doubtful. He, therefore, did not accept the evidence of PW 2 Ananda. Apart from that, PW 10 Narendra admitted that the place from where axes and clothes were recovered, was accessible to public at large. Not only that, the recovery of clothes and axes was made 5 days after the incident. Considering the totality of circumstances and evidence on record, learned Sessions Judge acquitted the accused. 11] After hearing learned counsel for the State and learned counsel for the accused, we are satisfied that the learned Sessions Judge has not committed any error while acquitting the accused. The view taken by learned Sessions Judge is reasonable and possible view. It cannot be said that the view taken by learned Sessions Judge was unreasonable or 9 crappeal-707-91.sxw perverse. In view of this, we find that the Appeal is devoid of substance and the same is dismissed. [R.G.KETKAR, J.] [D.B.BHOSALE, J.]