State Of Maharashtra vs Prakash Sakha Vasave & Ors

11) went to Navapur Police Station on the bike belonging to Sarpanch and disclosed the occurrence to the Police. Reenabai (PW3) lodged FIR (Exh.14) at 10.30 p.m. On the basis of FIR (Exh. 14) Crime No. 55/2001 came to be registered. P.1. Pradip Sonawane (PW18) carried out further investigation of the crime and, after completion of the investigation, sent up the charge sheet against the accused nos.1 to 3. Learned Judicial Magistrate, 4 First Class, Navapur, District Nandurbar, committed the accused nos.1 to 3 to the Court of Sessions to stand their trial.

Since the accused persons pleaded innocence trial was held. As noted above, the trial Court found the accused persons guilty and death sentence in respect of A-1 and A-2 and life imprisonment to A-3 was awarded. Three witnesses were stated to have witnessed the occurrence. They are PWs 3, 4 and 6. The trial Court found their evidence to be adequate and accordingly recorded the conviction and imposed sentences. The High Court directed acquittal primarily on the ground that PW-3 did not speak about the presence of Gemji (PW-4) and there is doubt about the place of recording the first information report and delay in lodging it. PW-3 did not speak about the assault by A-2 with knife. Only PW-6 spoke about it. No overt act was attributed by PW-6 to A-3. PW-4 did not say that the axe was fixed on the head. The evidence of PW-2 was full of contradictions as there was discrepancy about the recovery.

5. It is to be noted that PW-3 is the sister of the deceased. There was practically no cross examination on the assault part. So far as fixing of the axe on the head is concerned, unnecessary importance appear to have been attached to the same. As a matter of fact the conclusion of the High Court is erroneous because PW-4 in his evidence has categorically stated that the deceased was having injury on his body due to assault by means of axes. One axe was found inserted in the bone of head near the left ear. The handle of that axe was in a broken condition. According to the evidence the axe was inserted near about 4 to 5 inches in the head. Thereafter, all the three accused persons ran way from the spot. The motive indicated was that the deceased was having a illicit relationship with another lady and, therefore, the family members of the wife were upset. The High Court has come to an absurd conclusion that the eye witnesses PWs 3 and 6 gave account of 4 to 5 external injuries but the witnesses did not utter a single word about remaining 15 injuries. The High Court came to the conclusion that if at all these two witnesses witnessed the incident from a short distance then it was not explained as to why they were not able to account for the remaining injuries which were found on the body of the deceased. A witness who witnesses an attack on another by three persons armed is not supposed to go 6 on counting number of assaults on the parts of the body where the injuries were inflicted. They had categorically stated about the external injuries 1, 4, 8, 14 and 18. It is noticed that PWs 3 and 4 came running after hearing shout of the deceased. So it was possible that they had not noticed the injuries which were earlier sustained due to assaults. They appeared at the spot when the assault was continuing. As a matter of fact, in his cross examination PW-4 had stated that on hearing shout of the deceased he rushed towards him and reached there within a short time. When he reached at the spot of incident, at that time the deceased was lying on the ground having injuries on his person. As noted above, there is practically no cross examination of any of the eye witnesses i.e. PWs 3, 4 and 6 on the assault part.

6. So far as the delay in lodging the First Information Report is concerned, it has been accepted that the informant went to the wrong police station and when he was directed to go to Navapur Police Station, he went there and lodged the FIR. That clearly explains the delay. In the ultimate analysis, High Court was not justified in directing acquittal of A1 and A2. However, so far as A-3 is concerned, the High Court has indicated sufficient reasons for holding him not guilty. Same needs no interference. But the 7 reasons indicated for directing acquittal of A-1 and A-2 are not justified. We, therefore, set aside the judgment of High Court so far as their acquittal is concerned. But considering the facts of the case, it is apparent that the accused persons were annoyed with the deceased because of his having illicit relationship with another lady while his wife was alive. The case does not fall to the rarest of rare category. The appropriate sentence would be life imprisonment. The State's appeal is allowed to the extent indicated above. Respondents 1 and 2 are directed to surrender to custody forthwith to serve the remainder of sentence.