1 Cri.AppealNo.40/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.40/1994 The State of Maharashtra = APPELLANT VERSUS 1) Vijaysing s/o Malharrao Jadhav Age:31 Yrs., occu. Asstt. Police Commissioner, r/o New Panvel District Raygad. 2) Nanasaheb s/o Namdeo Desai (Appeal abates as against Resp.No.2 as per court's order dt.17.1.1997) 3) Keshav s/o Eknath Joshi Age:54 Yrs., occu.PSI, R/o Aurangabad. 4) Ramesh s/o Dhondiram Nagargoje Age:23 Yrs., occu.Police Constable, B.N.876, Bardapur, District Beed. = RESPONDENTS (orig.Accused) 2 Cri.AppealNo.40/1994 Mrs.SD Shelke, APP for Appellant-State; Mr. NS Ghanekar, Adv.h/for Mr.CP Sengaonkar, Adv. for Respondent Nos.1, 3 and 4. Respondent No.2 abated. ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 12th September, 2011. JUDGMENT (PER:- A.R.JOSHI,J.) 1) Heard rival arguments in the present criminal appeal preferred by the State of Maharashtra challenging the judgment and order dated 20th January, 1993 passed by the 2nd Additional Sessions Judge, Beed in Sessions Case No.81/1991. 2) By the impugned judgment and order, all the four accused persons - police officers, present respondents were acquitted of the offence punishable under Section 302 r/w 34 of the Indian Penal Code. 3) The facts of the present case are rather peculiar in nature inasmuch as the police officers were charged for the offence of murder for causing death of victim – Laxman by assaulting him with fist and kicks and blows from 3 Cri.AppealNo.40/1994 wooden stick and leather belt. The incident of assault, while victim Laxman was in the office of Dy. Superintendent of Police, occurred on the night of 24th August, 1989. Thereafter, the victim was taken to Beed Rural police station and on the next day morning, he was sent for medical treatment in the hospital and while in treatment, he died due to the injuries. He died in the evening of 25th August, 1989. 4) First Information Report was lodged by PW No.3 one Prabhakar – real brother of victim Laxman. 5) Prior to said incident of assault on the victim while he was in police custody, certain earlier events are required to be narrated in order to see as to how said victim was taken to the office of Dy. Superintendent of Police along with his other relatives, i.e. Brother – Prabhakar PW No.3 and one Smt. Sahabai – PW No.4 wife of PW No.3. Said facts are such, - that Prabhakar and Laxman both the brothers along with their wives, were residing at Vanjarwadi and were having avocation of agriculture labour and also having their own agricultural land. 6) In the morning of 20th August, 1989, one Smt. Indumati wife of Laxman went to the 4 Cri.AppealNo.40/1994 agricultural field for taking ground-nut pods. She did not turn up on that entire day and her whereabouts were not known, even such was the situation till late evening of next day - 21st August, 1989. Therefore, search was taken in the near vicinity and lastly her dead body was found in a well in the agricultural field of Laxman. 7) An intimation was given to Rural police station, Beed on 22nd August, 1989. Police arrived on the spot. The matter was being investigated by one Keshav Joshi – PSI, who is present respondent no.3. 8) During investigation of said matter of death of Indumati, an offence was lodged against her husband Laxman, his brother Prabhakar, wife of Prabhakar one Sahabai and also on the parents of Laxman. The charges were under Section 498-A, 306 r/w 34 of IPC. During investigation of the matter, on 23rd August, 1989, in the evening, then suspected accused i.e. Laxman, Prabhakar and Sahabai, were brought in the office of Dy.SP at Beed. They were interrogated by the Police officers including Dy.SP – Jadhav, present Respondent No.1; PSI Desai present Respondent No. 2; PSI Joshi present respondent No.3 and police constable – Nagargoje present respondent No.4. 5 Cri.AppealNo.40/1994 9) Allegedly, Laxman – husband of deceased Indumati was assaulted in the office of Dy.SP, Beed and actual part in the assault was taken by present respondent Nos.2 to 4 under the directions and control of Respondent No.1. Allegedly, such assault was witnessed by Prabhakar and Sahabai – PW Nos.3 and 4 when they were also present at the office of Dy.SP, Beed for their interrogation. Allegedly, such assault was in order to extract confession from Laxman as to his alleged illicit relations with Sahabai wife of his brother Prabhakar and to ascertain whether he had done away with his wife Indumati. 10) After the assault on Laxman at the office of Dy.SP, Beed on the relevant night of 23rd August, 1989, he was taken to rural police station, Beed for further process of effecting formal arrest along with other suspects, i.e. Prabhakar and his wife Sahabai. Apparently, during the night between 23rd and 24th August, 1989, the condition of Laxman was very serious due to the assault. However, he was not taken for medical check-up immediately and was sent for medical examination and treatment only in the morning of 24th August, 1989 along with police Yadi. 6 Cri.AppealNo.40/1994 11) Dr.Unhale – PW No.11 inspected the injured Laxman and started treatment. Medical case papers were prepared. However, on that evening, Laxman died in the hospital. Death of Laxman is the reason for lodging of the complaint against the concerned police officers, i.e. present respondents for offence punishable under Section 302 r/w 34 of IPC. 12) It is a factual position that prior to lodging of the complaint, and in fact, during the period Laxman was under treatment, father of Laxman visited the local Member of Parliament one Smt. Kesharbai Kshirsagar and requested for her help to look into the matter and give all possible medical aid to Laxman. Allegedly, a letter was given by said Member of Parliament, giving requisite directions to the Medical Officer to give all possible medical help. However, in the evening of 24th August, 1989, victim Laxman died. On the death of Laxman, PW No.3 – Prabhakar, his brother, again went to said M.P. and allegedly that time, the District Superintendent of Police and District Collector were present, and in their presence, apparently, allegations were made by Prabhakar against the present respondents as to causing death of his brother Laxman. Admittedly, instead of taking down the 7 Cri.AppealNo.40/1994 oral complaint, it was expressed by the Superintendent of Police, present there, that Prabhakar should lodge a written complaint and accordingly, a written representation, in vernacular Marathi typewriting, was prepared. It is at Exhibit-91. It specifically mentions that it was prepared in the premises of said M.P. in her bungalow at Beed and typed down and was then signed by Prabhakar PW No.3 and given to District Collector, Beed who was then present. This happened on 26th August, 1989 in the evening. 13) Case of the prosecution revolved around the evidence of complainant – PW No.3 Prabhakar; PW No.4 – Sahabai; PW No.7 – friend of Laxman one Ankush Khade and medical evidence as to the injuries caused to the victim Laxman and the post mortem report. 14) The defence of the respondents/accused is that of total denial and false implication and following points were raised on behalf of respondents to defend their case and to support the judgment and order of acquittal passed in their favour by the trial court. The said points are :- (i) Motive for the murder is lacking; 8 Cri.AppealNo.40/1994 (ii) Complaint was typed in the house of Member of Parliament - Smt. Kesharbai Kshirsagar, thus leading to concoction and false implication of the police officers out of personal disputes; (iii) Oral evidence of PW Nos.3, 4 and 7 was not convincing and it is infested by contradictions and omissions, which are material to the case of prosecution; (iv) There is delay in loding the complaint, thus leading to the concoction and false implication. 15) According to the substantive evidence of PW No.3 Complainant Prabhakar, he had allegedly witnessed the assault on Laxman and he saw the incident from the window which was then open when he was standing outside the office of Dy.SP, Beed and he was at a distance from the said office. Prior to the assault, he and his wife were interrogated in the said office and were assaulted and he was also directed to assault his wife Sahabai for extracting the confession from her as to alleged illicit relations between Sahabai and Laxman. Said evidence of PW No.3 is doubted by the Sessions Court on various counts including the circumstances showing the variance in the evidence of PW Nos.3 and 4. It is seen that the learned Sessions Judge has critically discussed the evidence of PW Nos.3, 4 and 7 coupled with the medical evidence and medical 9 Cri.AppealNo.40/1994 case papers brought on record and had raised doubts as to the authenticity of the case of the prosecution. What had weighed with the learned Sessions Judge in coming to the concoction of the story is mentioned in following points :- (a) There was delay in loding the FIR though the death occurred in the evening of 24th August, 1989, FIR was lodged as also with active assistance from local MP one Smt. Kesharbai Kshirsagar in the evening of 26th August, 1989; (b) Reasonable doubt as to the authenticity of the investigation was entertained in view of the material produced by the prosecution and in the evidence of the prosecution witnesses that there were cases under NDPS Act against the relations of said Member of Parliament and there were pressure tactics applied on the local police for not taking any action against such relations, and as such, concoction of the present case cannot be ruled out. (c) PW No.4 – Sahabai was also assaulted by her husband PW No.3 and also by the respondents/accused Nos.2 to 4, but medical evidence is produced by the prosecution to that effect. So also, the Medical Officer was not examined, thus leading to falsity of the statement of PW No.4 and consequently also of PW No.3. (d) According to the complainant – PW No.3, he witnessed the assault on Laxman through window to the office of Dy.SP, the evidence of panchanama do show that said window was closed with 10 Cri.AppealNo.40/1994 nuts and bolts and thick curtain was placed on the window. Moreover, in the FIR (Exhibit-91) itself, it is specifically averred that Laxman was assaulted in a room of the office of Dy.SP, keeping the door and windows closed and as such, the assault continued for about two hours on the relevant night of 23rd August, 1989. (e) Evidence of PW No. 7 – Ankush is disbelieved due to reason that apparently, he did not take any steps to intervene in the assault on Laxman when allegedly he had witnessed from long distance such assault on the relevant night. Moreover, his evidence as to witnessing the assault is falsified by the factual position that the door and windows of the office of Dy.SP, were closed. (f) Dr.Unhale – PW No.11 did not mention as to writing the history given by then injured Laxman while he was admitted for treatment and as such, the alleged entry as to the history of assault at the hands of the respondents, has not been proved by the prosecution, thus leading to the doubt regarding case of the prosecution and in view of this, it was entertained by the Sessions Judge that the prosecution failed to establish that victim Laxman gave any such statement or history to Dr. Unhale. (g) The Medical Certificate/Injury Certificate (Exhibit-55) was produced only at the time of recording of the evidence of Dr. Unhale in the court and not earlier, thus leading to the reasonable doubt as to its concoction. More so, considering the opinion given in the post mortem report as to death 11 Cri.AppealNo.40/1994 due to injury to the heart while apparently, there were no external visible injuries on the chest of the victim Laxman. 16) We have carefully gone through the reasoning given by the learned Sessions Judge, who had critically examined the effect of the substantive evidence of the alleged eye- witnesses and the medical evidence. At the cost of repetition, it must be mentioned that what was weighed with the learned Sessions Judge, was delay in lodging of FIR and in the manner in which typed complaint was prepared at the premises/bungalow of the Member of Parliament and given to the District Collector and then there was initiation of the proceedings against the police officers against whom apparently there was a grudge entertained by the Member of Parliament. 17) Considering the evidence of prosecution deficient to bring home the guilt of the respondents/accused, the Sessions Court had acquitted all the accused persons from the offence of murder and such order was passed way back in the year 1993. 18) Considering the scope of this Court in dealing with the appeal against acquittal and considering the lapse of more than 18 years and considering that the view taken by the Sessions 12 Cri.AppealNo.40/1994 Judge was reasonable and possible taking into consideration the material brought before him, there is nothing to re-apprise the said material and come to a different conclusion than that drawn by the learned Sessions Judge. In that view of the matter, we do not find any merit in the present appeal preferred by the State of Maharashtra, hence the same is disposed of with following order. ORDER Criminal Appeal No.40 of 1994 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.14.9.11 Authentic copy (BD VADNERE,PS)