-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1150 OF 2007 Shri Ganesh Popat More ¦ .. Appellant. Aged 24 years, Occ. Agriculturist ¦ (Org.Accused No.4. R/o. P.W.D.Colony, D-20, Sangvi, ¦ Dist. Pune. ¦ (at present in Jail Malshiras) ¦ V/s. The State of Maharashtra ¦ .. Respondent. --- Mr.S.P.Kadam for the Appellant. Mr.A.S.Shitole, APP for the Respondent- State. --- WITH CRIMINAL APPEAL NO. 1151 OF 2007 Bhausaheb Bhimrao Karche .. Appellant. Age 33 Years, Occ. Agriculturist (Org.Accd.No.3) R/o. Pimpri, Tal.Malshiras Dist.Solapur. (at present in Jail Malshiras) V/s. The State of Maharashtra .. Respondent. --- Mr. Milind Deshmukh for the Appellant. Mr.A.S.Shitole, APP for the Respondent-State. --- WITH CRIMINAL APPEAL NO. 1285 OF 2007 Dattatraya Laxman Karche .. Appellant. -: 2 :- Age-33 yrs. Occ. Agriculturist (Org.Accd.No.1) R/O. Pimpri, Tal.n Malshiras, Dist. Solapur. V/s. State of Maharashtra .. Respondent. ---- Mr. Milind Deshmukh for the Appellant. Mr.A.S.Shitole, APP for the Respondent-State. ---- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 25TH MARCH, 2009 DATED : 25TH MARCH, 2009 DATED : 25TH MARCH, 2009 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. All the above three Appeals are being disposed of by this common judgment and order as they arise out of common judgment and order passed by the Additional Sessions Judge, Malshiras, dated 12/16-10-2007. 2. The appellant in criminal appeal no.1285 of 2007 is the original accused no.1; the appellant in criminal appeal no.1151 of 2007 is the original accused no.3 and the appellant in criminal appeal no.1150 of 2007 is the original accused no.4. (The appellants hereinafter, for the sake of brevity, called as accused nos. 1,3 and 4.) The accused nos. 1,3,4 alongwith the other 6 accused were charged for the offence punishable under sections 147, 148, 307, 149 and 120-B of the Indian Penal Code. -: 3 :- 3. By the impugned judgment and order the accused nos. 1,3 and 4 were convicted for an offence punishable under section 307 read with section 34 of the Indian Penal Code and sentenced to suffer R.I. for five years and to pay fine of Rs. 500/-, in default to suffer R.I. for one month. The accused nos. 1,3,4, however, were acquitted of the offence punishable under sections 147, 148 and 120B of the IPC. The other 6 accused who were tried alongwith the accused nos. 1,3 and 4 are also acquitted of all the charges. 4. The prosecution story in brief is as under : i. The complainant PW-8 was residing at Karchewadi (Pimpri) alongwith his sons Somnath and Nana and other members of his family. There was a common well in his land and the land of accused no.1 and others from Karche families. On the earlier day of incident a meeting of the sharers of that well was convened in that land since junk from that common well was to be lifted and rotation of the sharers was to be fixed. There was no agreement amongst the sharers of that well regarding the place where the debris was to be put. It was decided ultimately to get adjoining lands -: 4 :- measured and put the debris in the excess land. The complainant consented for the measurement of his land. The accused no.1 did not approve the stand of the complainant which resulted in altercations between Laxman, the father of the accused no.1 and Vishvas, Vilas and Lala Karche and scuffle took place. The complainant tried to pacify the quarrel but he was abused. ii. In the night between 8th and 9th of April, 2003, the complainant and his two sons Somnath and Nana were abed on the plinth in front of their house. At about 4 a.m. the complainant woke up as some persons were assaulting him with sticks. He raised commotion. Assailants were the accused nos. 1, 3 and 4 and absconding accused no.2 and other five unknown persons. They assaulted the complainant, his sons Somnath and Nana with sticks. The ladies of the family of the complainant woke up and rushed to the complainant and his two sons. The assailants i.e. the accused persons thereafter left the spot and fled away by a jeep parked at a short distance. The complainant and his sons were taken to police station, Natepute by a jeep. The police recorded the complaint and on the basis of the complaint, C.R. No. 14 of 2003 was registered. PW-10 API- Andhalkar carried the -: 5 :- investigation and proceeded to the spot and panchanama was drawn of the scene of offence immediately. He thereafter recorded statements of complainant, his sons Nana and Somnath and arrested some of the accused and seized the weapons of offence i.e. 5 sticks under recovery panchanama. Blood stained clothes of complainant and his son Somnath were attached under supplementary statement of complainant and his sons were recorded and on completion of necessary formalities of investigation he filed the charge-sheet against the accused persons including the accused nos. 1,3 and 4 in the court of Judicial Magistrate, F.C. Malshiras for the offence punishable under sections 147, 148, 307/ 149 and 120 -B. Since the offence under section 307 is exclusively triable by the court of Sessions, the case was committed to the court of Additional Sessions Judge, Malshiras. 5. The charge was framed against the accused including accused nos. 1,3 and 4 for the offence punishable under sections 147, 148, 307/ 149 and 120-B of the Indian Penal Code. The charge was explained to the accused in vernacular to which they pleaded not guilty and claimed to be tried. The defence of the accused was of total denial and false implication. -: 6 :- 6. The prosecution in order to bring home guilt of the accused examined ten witnesses as follows : PW-1 Hanumant Bhagwan Karche, who is neighbouring land holder, PW-2 -Dilawar Papabhai Attar, who is panch to the seizure of the clothes of the complainant. PW-3 Dr. Narendra W. Desale, who examined the complainant and his sons and issued injury certificates. PW-4 -Yogita N. Rane, daughter in law of the complainant Jayram, who is the eye witness to the incident. PW-5 Somnath Jayram Rane, who is the complainant’s son and PW-6 Dr. Pravin Tulsiram Agavane, who examined Somnath. PW-7 Dr. Shirish Baburao Chaudhari, who examined Jayram and PW-8 is the Complainant. PW-9 is the Dr. Hanmant P. Dikshit, who examined the complainant and took his X-rays photographs and PW-10 is A.P.I. Andhalkar, who carried out the investigation in the case. 7. The prosecution also relied upon the documentary evidence, namely, panchanama at the scene of offence Exh. 81; the seizure panchanama of the clothes of the complainant and his sons at Exh. 83, injury certificate of the complainant and his sons Exh.104, 103 and 107. The injury certificate of the complainant specifying the nature of injuries issued by Superintendent R.H.Natepute Exh.141, the complaint at Exh. 143 and memorandum of -: 7 :- seizure panchanama under which four sticks were attached at the instance of the accused no.4 at Exh. 167- 167/1. 8. The learned Additional Sessions Judge after appreciating the documentary as well as oral evidence led down by the prosecution and after hearing the learned counsel concluded that the prosecution beyond doubt proved that the accused nos. 1,3 and 4 have committed offences under section 307 and accordingly convicted and sentenced them, as stated above. 9. Mr. Sanjeev Kadam, appearing for the accused no.4 and Mr. Milind Deshmukh appearing for the accused nos. 1 and 3 respectively submitted that the prosecution has failed to prove complicity of the accused nos. 1,3 and 4 beyond reasonable doubt. They submitted that the incident is allegedly witnesssed by four eye witnesses. However, their evidence is contradictory to each other and suffers from serious discrepancies. They also submitted that the accused nos. 1,3 and 4 are falsely implicated by the complainant and his two sons on account of previous enmity. 10. Mr. Shitole, the learned APP for the State on the contrary supported the impugned judgment and order. He submitted that there is enough evidence on record to -: 8 :- connect the present accused nos. 1,3 and 4 with the incident in question. He also submitted that if the oral evidence of these witnesses which is supported by the documentary evidence is taken into consideration then the only inference that the accused have committed the crime required to be drawn and therefore, the accused nos. 1,3 and 4 are rightly convicted. He lastly submitted that the appeal is devoid of any merit and therefore, deserves to be dismissed. 11. I have gone through the deposition of the witnesses and the documentary evidence relied upon by the prosecution. I have also heard the learned counsel appearing for the respective parties. In my considered opinion, there is merit in the appeal in asmuch as the evidence of the eye witnesses who alleged to have witnessed the incident is doubtful, benefit of which deserves to be given to the appellants accused. 12. The prosecution, in order to prove the incident which occurred on the intervening night of 8th and 9th April, 2003 relied upon the evidence of PW-1 Hanumant Karche, PW-4 Yogita Rane, PW-5 Somnath Rane and PW-8 Jayram Rane. 13. Now let us consider the evidence of the eye -: 9 :- witnesses. PW-1 Hanumant Karche deposed about the altercation and scuffle between the accused no.1 and Vishwas, Vilas and Lala which took place earlier to the date of the incident in question on the ground of place where debris was to be placed. He further deposed that on next day at about 4 a.m. he alongwith Laxman Karche started proceeding towards the well for watering their crops. When they reached at the house of the complaint, they saw accused no.1 and the original absconding accused no.2 Sunil in the torch light and other 5 to 6 persons ran away. He deposed that the accused nos. 1 and 2 were having sticks in their hands. Other 5 to 6 persons ran away towards white coloured jeep car and fled away from that place. Thereafter they saw injured complainant Jairam and his sons, Somnath and Nana. The injuries were profusely bleeding. PW-1 and Laxman Mukinda Karche brought one jeep to the house of the complainant. The injured were put in the jeep and taken to the Police Station, Natepute and the police thereafter referred those injured to the Rural Health Centre for medical examination. Thus PW-1 has not witnessed actual incident in which the PW-5, PW-8 and Nana received injuries. PW-5 Somanath in this regard in para 8 of his deposition deposed that PW-1 and Laxman Karche reached at the spot within 5 to 7 minutes after the incident took place. PW-8 the complainant in para 5 of his deposition stated that -: 10 :- PW-1 and Laxman Karche came to the spot and asked him as to who assaulted them. If the above evidence of PW-1, PW- 5 and PW-8 is considered together then it creates doubt as to whether PW-1 was present at the scene of offence and seen alleged assault on the complainant and his two sons. PW-1 has deposed that he has not witnessed the incident and has seen only accused nos. 1 and 2 alongwith other 5 to 6 persons, running away from the jeep. Had PW-1 seen the accused nos. 1 and 2 at about 4 p.m. on the date of the incident then he would not have asked PW-8 Complainant as to who assaulted them. The PW-5 also stated that PW-1 and Laxman Karche came there at the spot 5 to 7 minutes after the incident. In this circumstances it is very difficult to believe evidence of PW-1 that he had seen the accused nos. 1 and 2 with sticks in their hands near the spot of incident at the relevant time. 14. PW-4 Yogita Rane is another eye witness. She deposed that she was residing alongwith the complainant and his two sons and Taibai, her mother in-law. She further deposed that in the night between 8th and 9th April, 2003 she was present in her house with her husband Nana, his brother Somnath, father Jayram, her mother- in- law and others. She deposed that after having their dinner she went to bed in the eastern side room. Her husband and his father Jayram were abed on the plinth in front of that -: 11 :- room. At about 4 p.m. she heard alarm of PW-8 and she rushed out from that room. She saw 10 to 12 persons assaulting Jayram, Nana and Somnath by means of sticks. She specifically stated that the accused no.1, absconding accused no.2, accused no.4 and, Prakash More, original accused no.5 were amongst the said persons and other were not known to her. She, however, could not identify any of the accused persons present in the court except accused no. 5 Prakash More. Her relevant statement is as follows : "Accused No.5 Prakash present before the court is the same. I cannot identify rest of the accused in the dock". 15. PW-4 in para 3 of her deposition named the accused nos. 1,2,4 and 5 and stated that other accused persons were not known to her. If this is so then there should not be any difficulty to PW-4 to identify accused nos. 1, 2 and 4 sitting in the dock. However, she failed to identify them. It is therefore, difficult to accept the version of PW-4 that she witnessed accused nos. 1,2,4 and 5, assaulting PW-8 complainant, his sons Somanath and Nana. The evidence PW-4 thus does not inspire confidence and she is unworthy of any credence. -: 12 :- 16. PW-5 Somnath Jayram Rane in para 8 of his cross examination deposed that he saw assailants from their back side. He could not attribute any specific act of assault to the accused persons. He in terms admitted that police asked him as to who assaulted them. However, he did not disclose the names of the assailants nor his father or the brother disclosed the names of the assailants. He in para 9 admitted that he did not disclose the name of the assailants to medical officers also. The statement of PW-5 was recorded by PW-10, investigation officer. The above evidence of PW-5 requires to be considered alongwith the evidence of PW-10 investigating officer. PW-10 in para 2 of his deposition stated that on the date of incident he recorded statements of of Somnath PW-5, Nana, Taibai and complainant. In para 5 he deposed that on 12.04.2003, he recorded statements of Nana and Somnath Karche. In para 9 he deposed that he recorded statements of the relatives of the injured before writing letter to Dr. Agavane on 10.04.2003. He further deposed that since in the subsequent statements of the witnesses names of the assailants were transpired, he has not conducted the identification parade. If the evidence of PW-5 and PW-10-I.O. is considered in its proper perspective, then it is clear to my mind that the supplementary statement of PW-5 was recorded by the police on 12.4.2003 in which -: 13 :- names of the assailants were disclosed. This inference is consistent with the above mentioned admissions of PW-5 that he, nor his father and brother disclosed the names of the assailants to the police on the day of incident. The incident occurred in the wee hours on 9th of April,2003 at about 4 p.m. and within two hours the complainant PW-5 and his brother Nana were brought to the police station. Had they seen the assailants then surely they would have immediately informed the names of the assailants to the police. However, the evidence of PW-5 and PW-10- I.O. disclose that the names of the assailants were not disclosed immediately and it appears that for the first time those names were disclosed on 12.4.2003 when the supplementary statement of PW-5 was recorded. The delay on the part of the PW-5 in disclosing the names of the appellant to the police creates doubt as to whether he has actually seen the assailants. 17. PW-8 the complainant Jayram in para 19 of his deposition deposed as follows : "We reached the Police Station, Natepute at about 6.00 a.m. by a jeep brought by Hanumant Karche and Laxman Mukinda Karche. That jeep was belonging to one Katawale from Bhoi Wasti. Owner was driving that jeep. I was taken to Natepute -: 14 :- in the lying position in that jeep. We were taken to Police Station first and then to R.H. Police interrogated Somnath and Nana. I was unable to disclose that incident. Police jotted down complaint as per the instructions received from Somnath and Nana. Police obtained my signature on that paper." 18. In para 21, PW-8 further deposed that the complaint was not read over to him and he cannot read and write. Simply he can sign and he put his signature on the complaint, which was already written. Thus it is clear that the complaint at Exh. 143 was not taken down at the instance of PW-8. Nana, son of the complainant is not examined by the prosecution. Somnath is examined as PW-5. However, I have already expressed my doubts whether PW-5 has seen the assailants in asmuch as Somnath for the first time on 12.4.2003 disclosed the names of the assailants. If this is so, the complaint even could not have been taken as per instructions received from Somnath. At this stage it is worth to mention that PW-5 Somnath admitted that neither he nor his father and brother disclosed names of the assailants to the police on the date of the incident. The evidence of PW-8 is thus contrary to the complaint at Exh. 143 and therefore, I do find safe to -: 15 :- rely upon the same. 19. Since I find evidence of the eye witnesses is contrary to each other and the same does not inspires confidence, there is no need to go into the evidence of the rest of the witnesses, namely, medical officers and panch witness. There are number of grounds which creates reasonable doubt about accused nos. 1,3 and 4’s involvement and/ or complicity in the alleged offence under section 307 read with section 34 of the IPC, the benefit of which deserves to be given to them. 20. In the result, I pass the following order : ORDER ORDER ORDER i. The above Appeals are allowed. ii. The conviction and sentence of the appellant- accused nos. 4, 3 and 1 in above Appeals respectively, as ordered under the impugned common judgment and order by the Additional Sessions Judge, Malshiras, is hereby quashed and set aside. -: 16 :- ii. The appellant-accused no.1 in the criminal Appeal No. 1285 of 2007 is on the bail hence, his bail bond shall stand cancelled. iii. The appellant-accused nos.3 and 4 in the criminal Appeal Nos. 1151 of 2007 and 1150 of 2007 respectively, are in custody. They shall be released immediately, if not required in any other case. iv. Order accordingly. ( R.V. MORE,J.) .....