1 appa219.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. OF 2015
The State of Maharashtra,
Through Police Station Officer,
Police Station, Benoda, Tq.
Wardu. Distt. Amravati. .......... APPELLANT
// VERSUS //
1. Rajesh Upasrao Pawar,
Aged about 41 years, Occ.
Labour, r/o. Bhichwa, Tq.
Saunsar, Distt.Chhindwara
(M.P.).
2. Prabhakar @ Pravin Shriramji
Fule, Aged about 41 years, Occ.
Agriculture, r/o. Mamdapur,
Tq. Warud, Distt. Amravati.
3. Sau. Sunita Kamalsingh Badkhane,
Aged about 32 years, Occ.Labour,
r/o. Shingori, Tq.Warud, Distt.
Amravati.
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 :::
2 appa219.15.odt
4. Sau. Kamala Pappu Mohabe,
Aged about 48 years, Occ. Labour,
r/o. Shingori, Tq. Warud,
Distt. Amravati. .......... RESPONDENTS
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.T.A.Mirza, A.P.P. for the Applicant/State.
Mr.P.R.Agrawal, Adv. for Respondent Nos. 1 to 4.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : B.R.GAVAI &
A.S.CHANDURKAR, JJ.
ig DATE : 14.3.2016.
ORAL JUDGMENT (Per B.R.Gavai, J) :
1. The present appeal challenges the Judgment and Order passed by the learned Additional Sessions Judge, Amravati, dt.23.12.2014 in Sessions Trial No.37 of 2010 thereby acquitting the accused of the charges charged with.
2. It is the prosecution case that on 8th September, 2009, father of the first informant Anil Madhukarrao Basle (PW-1) had a party of fish and liquor along with accused nos. 1 and 2. It is the prosecution case that since Anil Basle ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 ::: 3 appa219.15.odt (PW-1) heard the noises, he went near the hut of his father and found that all the accused were beating his father. Said Anil states that, after he went there, the accused ran away.
It is his version that, at that time, he was told by his father that the accused had first administered poison to him by mixing the same in alcohol and then assaulted him. On the basis of F.I.R. lodged by Anil Basle (PW-1), investigation was done. After completion of investigation, charge sheet came to be filed against all the accused. Charges were framed. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed an order thereby acquitting all the accused of the offence punishable under Section 302 r/w. 34 of the Indian Penal Code.
3. Being aggrieved by the order of acquittal, the State has approached this Court.
4. Mr.T.A.Mirza, learned A.P.P. submits that the learned trial Judge has miserably misread the evidence of Anil ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 ::: 4 appa219.15.odt Madhukarrao Basle (PW-1). He submits that if the evidence of Anil Basle (PW-1) would have been read in correct perspective with the C.A. report by the learned trial Judge, he would have come to the conclusion that death of the deceased was by administering poison and that the present appellants were responsible for the same.
5. Mr.P.R.Agrawal, learned Counsel appearing on behalf of the respondents/accused submits that the learned trial Judge has given cogent and sound reasons for acquitting the accused, which warrants no interference.
6. By now the law in respect of interference in an appeal against acquittal is well settled. Unless it is found that the view taken by the learned Trial Judge is perverse or impossible, it is not permissible for this Court to interfere with the same. It is equally settled that merely because the appellate Court finds the other view to be more appropriate, it is not permissible for the appellate Court to reverse the view of trial Court.
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 :::5 appa219.15.odt
7. With the assistance of the learned A.P.P. and the learned Counsel for the respondent/accused, we have examined the entire evidence. The star witness on behalf of the prosecution is Anil Basle (PW-1). He states that all the accused have assaulted his father with a stick. He further states that when he went to the spot, his father told him that first he was administered alcohol mixed with poison and thereafter, he was assaulted.
8. Insofar as the oral dying declaration given by the deceased is concerned, it will be relevant to refer the evidence of Rameshwar Devidas Domne (PW3), who is neighbourer of the deceased. It would further be seen that evidence of Anil Basle (PW-1) is shattered in the testimony of this witness itself. He states that he had not seen anyone running. He further states that the deceased was not in a position to speak. In that view of the matter, the oral dying declaration cannot be believed.
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 :::6 appa219.15.odt
9. Insofar as the version given by Anil Basle (PW-1) regarding assault by the stick is concerned, evidence of Dr.Ravindra Motiram Hande (PW-10) would show that he has stated in his deposition that there was no injury shown in Column No.17 in the Post Mortem report. In cross-
examination, he further admitted that had there been injuries on the person of the deceased then they would have been mentioned in the post mortem report. Not only this, but Pramod Uddavrao Potdar (PW-11), Medical Superintendent, Rural Hospital at Warud also admits that there were no injuries mentioned in medico-legal papers. In view of the evidence of this witness, the learned trial Judge has found that the version given by Anil Basle (PW-1) regarding assault by stick was not acceptable. He has, therefore, disbelieved the version of Anil Basle.
10. If the version of Anil Basle (PW-1) being an eye witness is disbelieved then the case becomes purely a case of circumstantial evidence. In a case based on circumstantial evidence, it is necessary for the prosecution to prove each and ::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 ::: 7 appa219.15.odt every circumstance beyond reasonable doubt and the prosecution has further to establish that the circumstances so proved establish a chain of evidence which leads to no other conclusion than guilt of the accused. In a case of circumstantial evidence wherein it is alleged that death has occurred by administering poison, additional circumstance is required to be proved by prosecution i.e. the accused are the persons who have purchased the poison. The evidence of I.O.
Ravinda Hande (PW-10) would show that no investigation was done in that regard. He has clearly admitted that he had not made any inquiry about from where the accused brought poison.
11. Moreover, the examination-in-chief of Anil Basle (PW-1) so also the cross-examination of said witness would reveal that there are various other criminal cases pending against the deceased as well as some of the accused filed by them against each other. As such, possibility of false implication of accused persons on account of previous rivalry also cannot be ruled out.
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 :::8 appa219.15.odt
12. In view of the above, we find that the prosecution has utterly failed to prove any of the incriminating circumstance against the accused persons. The appeal is found without merits and as such, the same is dismissed. Resultantly, Criminal Application No.219 of 2015 for grant of leave to file Criminal Appeal is disposed of.
ig JUDGE JUDGE
jaiswal
::: Uploaded on - 16/03/2016 ::: Downloaded on - 31/07/2016 08:57:25 :::