CRI. APPEAL NO.274.2002.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.274 OF 2002
State of Maharashtra,
through Police Station Officer,
Mahuli, District-Amravati. .. APPELLANT
.. VERSUS ..
1] Gopal s/o Baba Rane,
Aged about 26 years,
2] Sanjay s/o Babasaheb Choudhary,
Aged about 23 years,
3] Baba s/o Keshaorao Rane,
Aged about 56 years,
All r/o. Deori, P.S. Mahuli,
District-Amravati. .. RESPONDENTS
..........
Shri I.J. Damle, APP for Appellant-State,
None for the respondents.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : APRIL 18, 2017.
ORAL JUDGMENT Being aggrieved by the judgment and order dated 8.2.2002 passed by the learned Additional Sessions Judge, Amravati in Sessions Case No.39/1997 acquitting the ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 2 accused of the offences punishable under sections 452, 326, 324 and 395 of the Indian Penal Code.
2] Prosecution case, in brief, is as under :
(a) Complainant Baburao Raut, injured
Raosaheb Raut and Bhausaheb Raut were
residents of village Deori. Accused were also
residing in the same village. It is the case of
prosecution that on 21.8.1996 at about 7.00 pm, all the accused persons unlawfully entered the house of complainant Baburao and assaulted him with sticks and axe. Complainant was proceeding to Police Station for lodging report. When he reached Deori Fata, he was obstructed and assaulted by the accused. Raosaheb and Bhausaheb also reached Deori Fata on a Scooter. Accused obstructed their vehicle and started assaulting Raosaheb and Bhaurao. Due to assault, Baburao, Raosaheb and Bhausaheb sustained injuries.
(b) It is the contention of the prosecution that accused robbed cash of Rs.3,000/- from the bag which was being carried out by Raosaheb. ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 3 Report of the incident was lodged by Bhaurao to Mahuli Police Station. Crime No.112/1996 came to be registered against the accused. PW-8 ASI Bhaskar Chaudhari took over investigation. Injured were referred to Irwin Hospital. PW-10 Dr. Manohar Mohod was Medical Officer on duty. He examined Raosaheb, Baburao and Bhausaheb. On examination, multiple injuries were found on the person of injured. Medical certificates were accordingly issued by the doctor.
(c) ASI Chaudhari visited the place of occurrence and recorded spot panchanama. Sticks were seized from the accused. Some of the witnesses were examined by ASI Chaudhary. Further investigation was handed over to PW-9 Kishor Raut.
(d) Investigating Officer collected medical certificates, arrested the accused and handed over further investigation to PSI Khare. Statements of witnesses were recorded. On completion of investigation, chargesheet was submitted to the court of Judicial Magistrate, First Class, Amravati, ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 4 who in turn, committed the case for trial to the Court of Sessions.
3] Trial court framed charge vide Exh.5. Accused pleaded not guilty and claimed to be tried. Their defence was of total denial and false implication. Accused raised the specific defence that Baburao was Chairman of Cooperative Society and accused Gopal succeeded to the post of Chairman at Deori Cooperative Society by defeating Baburao. There was political rivalry between complainant and his relatives on one hand and the accused on the other. In view of political rivalry, with a view to harass the accused, complainant and his brothers implicated the accused in a false case.
4] To substantiate the guilt of accused, prosecution examined in all 11 witnesses. Considering the evidence of injured and eye witnesses and testimony of Medical Officer, trial court found that their testimonies suffer from contradictions and omissions. Their evidence is inconsistent. They do not corroborate each other. Witnesses are not coming with true facts and story built by the witnesses appears to be a cock and bull story. In ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 5 consequence, trial court held that charge is not proved and acquitted the accused. Hence this appeal is preferred by the appellant-State.
5] At the outset, it is to be mentioned here that respondent no.2-original accused no.2 died during pendency of appeal and vide order dated 19.4.2003, appeal against respondent no.2 stood abated. Present appeal is, therefore, restricted to appellant nos.1 and 3, who are original accused nos.1 and 11.
6] Heard Shri I.J. Damle, learned Additional Public Prosecutor for the appellant-State. With the assistance of the learned Additional Public Prosecutor, this court has gone through the evidence of injured, eyewitnesses, Medical Officer and investigating officers.
7] On meticulous evaluation of the evidence of prosecution witnesses, submissions made on behalf of the appellant-State and reasonings recorded by the trial court, this court, for the below mentioned reasons, is of the view that the view taken by the trial court is a possible view and so no interference is warranted in the present appeal. ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 6 8] PW-1 Baburao Raut is complainant. He stated that accused entered his house and assaulted him with sticks and axe. His wife Chhabutai (PW-7) has seen the incident occurred in the house of Baburao. According to Chhabutai, her husband was assaulted by accused Sanjay with an axe on his shoulder and accused Gopal assaulted on his legs and back by stick. From the evidence of Chhabutai, it can be seen that at the time of occurrence of incident in the house, neighbourers did not assemble and other family members were also not present. It appears from the evidence of Baburao and Chhabutai that accused assaulted Baburao with axe and sticks and caused grievous bleeding injuries. He was severely attacked with dangerous weapons. Spot panchanama was drawn by PW-8 ASI Chaudhari. The said panchanama (Exh.35) clearly indicates that no blood was found on the spot. If Baburao has received multiple bleeding injuries caused with dangerous weapons and as stated by Chhabutai, shirt of Baburao was stained with blood, then in normal course blood stains ought to have appeared at the place of occurrence. Absence of blood on the spot creates doubt regarding the genesis of crime given by Baburao and Chhabutai. This has significance in the light of the fact that ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 7 political rivalry between complainant and his relatives on one hand and the accused on the other is not in serious dispute.
9] So far as the second phase of the incident is concerned, PW-2 Raosaheb and PW-6 Indirabai are the star witnesses. According to Raosaheb, he and Bhausaheb reached Devri Fata at 6.30 pm and that time they were obstructed and assaulted by the accused. Baburao stated that after assault on him in his house, he proceeded to Police Station and while he was proceeding to Police Station, accused obstructed and assaulted him. Both the witnesses have stated that accused were armed with axe, sticks and swords, but assault on Raosaheb was only by means of sticks. It is interesting to note that as per the version of Raosaheb 15 persons assaulted him for 20 minutes but medical certificate (Exh.62) shows that he received two contusions and one lacerated wound to non vital parts. Medical evidence belies the testimony of Raosaheb that he was assaulted by 15 persons for 20 minutes. Similar is the case with Baburao. Medical evidence does not support the testimony of Baburao that he was assaulted by 15 persons with dangerous weapons. The evidence of PW-10 Medical ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 8 Officer Dr. Mohod shows that injuries received by Baburao were simple injuries and none of the injured received injury on vital part. If the manner of incident narrated by injured witnesses is to be believed, then medical evidence was expected to be otherwise. There ought to have been multiple injuries on vital parts of the injured. This is not so. 10] The evidence of PW-6 Indirabai makes it clear that at the relevant time she was in her house near Devri Fata and on hearing commotions, she reached the spot. Though she stated that 15 persons were assaulted Bhausaheb and Raosaheb, she could identify only Gopal Rane and Sanjay Choudhary. Rest of the assailants were not identified by Indirabai. Test identification parade was not held during investigation. She does not attribute any specific role to Gopal and Sanjay. In her cross-examination, she admitted that she reached the spot and that time Raosaheb and Bhausaheb were lying on the ground. It means that she is not an eyewitness to the incident and she reached the place of occurrence after the incident. The evidence of Indirabai is, therefore, not helpful to the prosecution on the second phase of incident which took place at Devri Fata. ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 9 11] Accused have been charged with the offence of dacoity. Though Raosaheb stated that accused snatched away Rs.3,000/- from his bag, during investigation there is no recovery of Rs.3,000/-. In the absence of recovery, mere statement of Raosaheb cannot be accepted that he was carrying Rs.3,000/- in a bag at the relevant time. 12] It is pertinent to note that all the material witnesses examined by the prosecution are the close relatives. No independent witness on incidents which took place according to the prosecution in the house of Baburao and at Devri Fata has come forward to support the version of injured persons and the complainant. As political enmity is admitted between the parties, trial court has rightly observed that in view of inconsistencies in the evidence of injured witnesses and the medical evidence, absence of corroboration would be fatal to the prosecution case. The view taken by the trial court is a reasonable and possible view. The same is based on the evidence on record. Therefore, this court finds no reason to take a view different than taken by the trial court. Prosecution has not challenged the judgment and order of acquittal against the other accused persons. No specific role is attributed even to ::: Uploaded on - 29/04/2017 ::: Downloaded on - 27/08/2017 23:50:09 ::: CRI. APPEAL NO.274.2002.odt 10 accused nos.1 and 11. In this background, appeal against accused nos.1 and 11 is unsustainable and it deserves to be dismissed. In the result, following order is passed :
(i) Criminal Appeal No.274/2002 stands dismissed.
(ii) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
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