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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.490 OF 2003
with
CRIMINAL APPEAL NO.239 OF 2003
1) CRIMINAL APPEAL NO.490 OF 2003 :
The State of Maharashtra,
Through Police Station Officer,
Police Station - Lalkhed,
Tq. Darwha, District Yavatmal. .......... APPELLANT
// VERSUS //
1. Eknath Ramdas Motghare,
Aged about 18 years.
2. Bablu @ Pradeep Ramesh Kawale,
Aged about 24 years,
r/o. Dabha Pahur.
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3. Devanand Vishwanath Chandankhede,
Aged about 20 years.
4. Ramdas Maniram Motghare
(Appeal abated against him)
5. Chandrabhan Ramdas Motghare,
Aged about 23 years.
6. Vishwanath Kawadu Chandankhede,
Aged about 67 years.
All r/o. Kanzara, Tq. Darwha,
Distt. Yavatmal. .......... RESPONDENTS
____________________________________________________________
Mr.S.S.Doifode, A.P.P. for the Appellant/State.
Ms N.G.Choubey, Advocate (appointed) for Respondent Nos. 1 to 3.
____________________________________________________________
****
2) CRIMINAL APPEAL NO.239 OF 2003 :
1. Eknath s/o. Ramdas Motghare,
Aged about 23 years,
Occ. Labourer, r/o. Village
Kanjhara (Buzrug), P.S. and
Post Lalkhed, Tq. Darwha,
Distt. Yavatmal.
2. Bablu @ Pradeep Ramesh Kawale,
Aged about 29 years, Occ. Labourer,
r/o. Village Dabha Pahur (Pahur),
Post Dabha Pahur, P.S. & Tq.
Babhulgaon, Distt. Yavatmal.
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3. Dewanand Vishwanath Chandankhede,
Aged about 25 years, Occ. Labourer,
r/o. Village Kanjhara (Buzrug),
P.S. and Post Lalkhed, Tq.Darwha,
Distt. Yavatmal. .......... APPELLANTS
// VERSUS //
The State of Maharashtra,
Through the Police Station Officer,
Police Station - Lalkhed,
Tq. Darwha, District Yavatmal. .......... RESPONDENT
___________________________________________________________
Mr.G.G.Bade, Advocate for the Appellants.
Mr.S.S.Doifode, A.P.P. for Respondent/State.
____________________________________________________________
*******
Date of reserving the Judgment : 8.11.2017.
Date of pronouncement of the Judgment : 4.12.2017.
*******
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant nos. 1 to 3 namely Eknath s/o. Ramdas Motghare, Bablu @ Pradeep s/o. Ramesh Kawale and Dewanand s/o. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
4 apeal490.03.odt Vishwanath Chandankhede respectively in Criminal Appeal No.239 of 2003 have filed the said appeal against their conviction for the offence punishable under Section 304-II of the Indian Penal Code by the Adhoc Additional Sessions Judge, Yavatmal in Sessions Trial No.33 of 1998.
2. Criminal Appeal No.490 of 2003 is filed by the State challenging acquittal of accused nos. 1 to 6 of the offence punishable under Section 302 of the Indian Penal Code.
3. The case of the appellants in both the appeals, in short, is as under :
Agricultural land of accused Vishwanath Chandankhede was adjacent to the field of deceased Eknath Meshram. They used to quarrel with each other on account of boundary of the field. Accused Ramdas used to graze his goats in the field of deceased and there was a quarrel between them on that count. House of accused Vishwanath and accused Ramdas Motghare are by the side of house of deceased. On 2.9.1997, on the next day of Pola (Badga), at about 5.00 p.m., deceased Eknath was standing in the courtyard of his ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 5 apeal490.03.odt house. At that time, accused Eknath, Devanand and Bablu came in front of the house of deceased. They all were under the influence of liquor. They suddenly came close to the deceased and started beating him with fist and kick blows. Accused Bablu and Devanand were having sticks (tutari). Accused Eknath was having weapon like knife. Son of deceased namely Prashant and his mother tried to intervene. They snatched the sticks from the hands of accused. Accused Bablu and Devanand threw sticks in the courtyard.
4. Accused Eknath and Ramdas reached there. They instigated other accused to beat the deceased. Accused beat the deceased. Neighbours namely Madhav Ramteke, Sudhir Meshram and Shankar Meshram along with his brother Praful reached there. They rescued the deceased. The deceased was taken in the courtyard. He was not in a position to talk. Deceased had injuries on his head, chest, back, abdomen, shoulder and face.
5. Prashant Ekanth Meshram and others took the deceased to Dr.Rekwar at Bori. He advised them to take the deceased immediately to Government hospital. Therefore, they took the ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 6 apeal490.03.odt deceased to the Cottage hospital, Bori Arab, where the Doctor declared him dead.
6. On 3.9.1997, report was lodged in Police Station, Lalkhed. The dead body was sent for post mortem. The spot panchanama etc. were carried on 3.9.1997. However, offence was not registered. PSI Belorkar conducted inquiry and registered crime on 6.9.1997. Further investigation was carried out by CPI Gaikwad. He recorded statements of witnesses.
7. Complainant was not satisfied with the Police Mortem Report (Exh.34) issued by the Medical Officer Milind Tagadpallewar (PW-8). Again, CPI Gaikwad requested the Medical Officer, Government Medical College, Yavatmal. Dr. Anil Batra (PW-3) conducted post mortem on 23.9.1997, after exhuming the dead body. After complete investigation, charge sheet was filed before the Judicial Magistrate, First Class. Learned Judicial Magistrate, First Class committed the case for trial to the Court of Sessions.
8. Charge was framed by the trial Court at Exh.18. Same was read over and explained to the accused. All the accused pleaded ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 7 apeal490.03.odt not guilty and claimed to be tried. Defence of the appellants/accused appears to be of total denial.
9. Prosecution has examined following eight witnesses :
a. Prashant Eknath Meshram (PW-1). b. Namdeo Suryabhanji Meshram (PW-2). c. Dr.Anil Krishanaram Batra (PW-3). d. Praful Eknath Meshram (PW-4). e. Leelabai Madhao Ramteke (PW-5). f. Sujit s/o. Ramji Meshram (PW-6). g. Bhalchandra Krushnarao Belorkar (PW-7). h. Dr. Milind Tagalpallewar (PW-8).
10. After hearing the prosecution and defence, the learned trial Court came to the conclusion that the accused had no intention to kill the deceased. But they had knowledge that, by causing such injury, deceased would die. Therefore, the learned trial Court convicted appellant nos. 1 to 3 for the offence punishable under Section 304-II of the Indian Penal Code and acquitted accused nos. 4 ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 8 apeal490.03.odt to 6. Being aggrieved by the impugned Judgment, prosecution as well as accused nos. 1 to 3 filed the appeals, as stated above.
11. Heard Mr.G.G.Bade, learned Counsel for the appellants in Criminal Appeal No.239 of 2003. He has submitted that Dr.Milind Tagadpallewar (PW-8) was the Medical Officer. He conducted post mortem on 3.9.1997. As per his evidence and Post Mortem report (Exh.34), injuries found on dead body were not sufficient to cause death and therefore, he opined that death of deceased may not be possible because of injuries mentioned in Column No.17 of Post Mortem report (Exh.34).
12. Learned Counsel Mr.Bade has pointed out the evidence of Dr. Batra (PW-3) and submitted that Dr.Batra conducted post mortem on 23.9.1997 after exhuming the body from earth and he issued post mortem report (Exh.64). As per his opinion " no definite opinion about the exact cause of death could be given due to advanced stage of decomposition." However, according to him, probable cause of death was due to head injury as guarded opinion" ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
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13. Learned Counsel has submitted that opinion of both the doctors who conducted post mortem on the dead body of deceased clearly shows that the injuries found on the dead body were not sufficient to cause death and therefore, it is clear that homicidal death is not proved by the prosecution.
14. Learned Counsel Mr.Bade has pointed out cross- examinations of Prashant Meshram (PW-1), Namdeo Meshram (PW-
2), Praful Meshram (PW-4), Leelabai Ramteke (PW-5) and Sujit Meshram (PW-6) and submitted that these witnesses are not reliable. Learned Counsel has submitted that the deceased was addicted to liquor. As per the cross-examination of Dr.Batra, excessive drinking of liquor may cause Liver Cirrhosis and the patient may die. At last, it is submitted that the deceased might have died due to some other reason. Hence, homicidal death is not proved. The oral evidence adduced by the witnesses is full of doubt. Hence, it is submitted that Criminal Appeal No.239 of 2003 be allowed. He also prayed to dismiss the appeal filed by the State.
15. Heard Mr.S.S.Doifode, learned A.P.P. He has submitted that the offence punishable under Section 302 of the Indian Penal ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 10 apeal490.03.odt Code is proved by the prosecution against all the accused. Therefore, the appeal filed by the State be allowed and the appeal filed by the accused be dismissed.
16. Perused the evidence on record. First of all, we have to see whether deceased Eknath Meshram died homicidal death. To prove homicidal death, the evidence of expert witnesses i.e. Medical Officers/Doctors who performed post mortem is very useful. Medical Officer Mr.Milind Tagadpallewar (PW-8) has stated in his evidence that, on 3.9.1997, he performed post mortem on the dead body of Eknath Meshram. During the course of post mortem, he observed following injuries :
" A) Abrasion over forehead left half below the hair line size 0.5 cm x 0.5 cm.
B) Abrasion over scalp left frontal region size 0.5 cm x 0.5 cm.
C) Contusion over right elbow swelling size 2 cm x 2 cm. No fracture seen.
D) Echymosis patch over right para umbical region over abdomen size 1 cm x 0.5 cm." ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
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17. Dr.Milind Tagadpallewar (PW-8) has further stated that the injuries mentioned in Column No.17 were ante mortem injuries.
Cause of death could not be given after performing post mortem. However, viscera was preserved. He personally prepared post mortem report (Exh.34). He has further stated that, on 17.9.1997, he examined the weapons i.e. bamboo sticks which were brought by Police Constable Shivaji. On examination of the said sticks, he opined that the injuries mentioned in Column No.17 of the post mortem report can be caused by the sticks which were referred to him.
18. As per opinion of Dr.Tagadpallewar, death of deceased may not be possible because of injuries mentioned in Column No.17 of Post mortem report (Exh.34). In cross-examination, he has admitted that there was contusion but no fracture was seen. Contusion mentioned in Injury No.3 was with swelling. There was no injury to skull volt and skull. He did not find any puncture injury on the dead body of deceased. Puncture wound can be caused by sticks ('tutari'). Abrasion can be caused because of friction with hard and rough object.
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19. Complainant was not satisfied with the Post Mortem report (Exh.34) issued by the Medical Officer Dr. Milind Tagadpallewar. Therefore, he requested for conducting post mortem again. Accordingly, Dr.Anil Batra (PW-3) went to the field where dead body was buried. Dead body was exhumed on 23.9.1997. He conducted post mortem. As per his evidence, all organs were decomposed. "No definite opinion about exact cause of death could be given due to advanced stage of decomposition." (However, according to him, the probable cause of death was due to head injury as guarded opinion). In the cross-examination, he has admitted that micro sized nodules does find if the deceased suffers with some decease of liver prior to his death. One of the reasons of finding micros sized nodules can be psoriasis of liver and by this decease, the death of person takes place. Liver Cirrhosis can be caused because of consumption of alcoholic liquor for prolonged period. He could not give opinion whether injuries referred in column no.19 (ii) were ante mortem or post mortem.
20. From the perusal of evidence of Dr.Milind Tagadpallewar (PW-8) and Dr.Anil Batra (PW-3), it is clear that both the experts of medical field have not given any definite opinion of cause of death. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
13 apeal490.03.odt Though Dr. Batra has stated that the cause of death might be head injury (as a guarded opinion). But Dr.Tagadpallewar has stated in his evidence that there was no injury to skull volt and skull. He did not find any puncture injury on the dead body. This itself shows that there was no any head injury. Moreover, Dr.Milind Tagadpallewar (PW-8) was the first Medical Officer who conducted post mortem on the next day of the incident i.e. on 3.9.1997. As per his observation, at the time of post mortem, he found only abrasion, contusion etc. He noted only four minor injuries. As per his opinion, those injuries were not sufficient to cause death. Hence, it is clear from the evidence of both medical experts namely Dr.Tagadpallewar and Dr.Batra that death of deceased Eknath Meshram was not homicidal death.
21. Suggestions were given to other witnesses that deceased was addicted to liquor and therefore, at the time of incident, he fell down under the influence of liquor and died. As per evidence of Dr. Batra, if any person consumes alcohol/liquor for a long time, decease like Liver Cirrhosis may cause. Therefore, there may be other decease/reason for the death of deceased. Hence, prosecution has ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 14 apeal490.03.odt utterly failed to prove that the deceased died due to beating by the accused.
22. Oral evidence of Namdeo Meshram (PW-2), Praful Meshram (PW-4) and Leelabai Ramteke (PW-5) is not reliable.
Prashant Meshram (PW-1) made much more exaggerations/improvements in his evidence. He has stated that one of the accused namely Vishwanath was having knife in his hand and he gave blow of knife to the deceased. He has further stated that the accused threw that knife on the spot of incident/courtyard. It is pertinent to note that the knife was not seized by the Investigating Officer. Moreover, both the doctors have not seen any stab injury on the dead body of deceased.
23. As per the evidence of Prashant Meshram (PW-1), the deceased sustained injury to his head, chest, back, abdomen, face etc. But those injuries were not found at the time of post mortem. Material omissions are brought on record in his cross-examination. Therefore, evidence of this witness is not reliable. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
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24. Namdeo Meshram (PW-2) was the brother of deceased. He was residing at Nagpur. He was informed about the incident in the night and he arrived at village Kanzara on 3.9.1997 and after his advice, report was lodged. Therefore, this witness has no any personal knowledge. All his evidence is hearsay evidence. Therefore, it is not helpful to the prosecution.
25. Praful Meshram (PW-4) has stated in his evidence that he was grazing cattle on the day of incident when he came to know about the beating by accused. Then he rushed to his house. His father was lying. His evidence itself shows that when he reached to the spot of incident, the deceased was lying there. Therefore, his evidence is not reliable.
26. Evidence of other witnesses namely Leelabai Ramteke (PW5) and Sujit Meshram (PW-6) is also on the same footing. All the oral evidence adduced by the prosecution is of the nearest relatives of deceased. They have made much more exaggerations in their evidence. Sujit Meshram (PW-6) has gone to the extent of saying before the Court that the fact of quarrel was made known to him by deceased Eknath Meshram. He has further admitted that ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 16 apeal490.03.odt whatever statement he made before the Court was made by him after narrating the said fact by deceased Ekanth to him. It is pertinent to note that when this witness reached to the spot of incident, quarrel was going on. The deceased was lying. As per evidence of Prashant Meshram (PW-1) and other witnesses, deceased was unconscious. Therefore, it is hard to believe that the deceased narrated the incident to Sujit Meshram (PW-6).
27. Oral evidence adduced by prosecution is not reliable because the witnesses have made much more improvements. They are interested witnesses. All they are relatives of deceased. Prashant Meshram (PW-1), Praful Meshram (PW-4) and Sujit Meshram (PW-
6) deposed contradictory to each other. Prashant Meshram (PW-1) has stated that he sustained injury on his left cheek and on his right hand fingers. But no any Medical Certificate is proved by the prosecution to show any injury sustained by him.
28. Registration of crime against the accused persons is also doubtful. As per report lodged by Prashant Meshram PW-1 (Exh.64), on the very next day i.e. on 3.9.1997, report was lodged to Police Station, Lalkhed. But crime was not registered on the same day. ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
17 apeal490.03.odt Printed F.I.R. is at Exh.81. It shows that information was received on 6.9.1997 and crime was registered on the said information on 6.9.1997.
29. Evidence of Investigating Officer Bhalchandra Belorkar (PW-7) is also doubtful. He has stated in his evidence that he registered a Marg and he made an inquiry. It is pertinent to note that when specific allegations were made by the complainant in the report dt.3.9.1997, then there was no any need for him to register Marg. He registered the crime against accused persons on 3.9.1997. As per his evidence, he seized the sticks from the wife of deceased. She gave all the stick from her house. Therefore, recovery is also doubtful. Bhalchandra Belorkar (PW-7) has stated in his evidence that he did not inquire regarding the knife. He seized only sticks. Ramabai (wife of deceased) produced the said sticks. He did not find any blood stains on the seized stick at the time of seizure panchanama. Interestingly, the C.A. Report shows blood stain on one of the seized sticks. All these creates doubt about the investigation by Bhalchandra Belorkar (PW-7) and later investigation by CPI Gaikwad.
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30. PSI Belorkar (PW-7) has further stated that he obtained opinion of Dr.Batra by sending sticks. It was mentioned in the opinion of Dr. Batra that the injuries mentioned in Col. No.17 of Post mortem report cannot be caused by sticks and they are post mortem injuries. Evidence of Dr.Milind Tagadpallewar (PW-8) clearly shows that he examined the sticks. As per his opinion, death of deceased may not be possible because of the injuries mentioned in Column No.17.
31. Prosecution has failed to prove that the deceased died homicidal death and the accused persons were author of crime. Medical evidence of Dr.Anil Batra (PW-3) and Dr.Tagadpallewar (PW-8) clearly shows that the deceased has not died homicidal death. Oral evidence adduced by Namdeo Meshram (PW-2), Dr. Anil Batra (PW-3), Praful Meshram (PW-4), Leelabai Ramteke (PW-5) and Sujit Meshram (PW-6) are not reliable due to much more improvements in their evidence. Material omissions are brought on record.
32. Investigation by Bhalchandra Belorkar (PW-7) and CPI Gaikwad is also doubtful. As per evidence Prashant Meshram (PW- ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::
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1), report was lodged on 3.9.1997, but F.I.R. Exh.81 clearly shows that the information was received on 6.9.1997. Crime was registered on 6.9.1997; whereas spot panchanama etc. were prepared on 3.9.1997. The weapons were seized from the house of deceased itself. The weapons were not sealed. As per the evidence of PSI Bhalchandra Belorkar (PW-7), he had not seen any blood stain on any of the sticks. Whereas C.A. Reports show that blood stain on one of the sticks. All these evidence creates doubt. Prosecution has miserably failed to prove guilt of accused. Learned trial Court has not taken into consideration the evidence on record. He has failed to consider the medical evidence of Dr. Anil Batra (PW-3) and Dr.Milind Tagadpallewar (PW-8) and wrongly convicted accused nos. 1 to 3 for the offence punishable under Section 304-II of the Indian Penal Code. Hence, we pass the following order.
// ORDER // Criminal Appeal No.490 of 2003 filed by the State is hereby dismissed.
Criminal Appeal No.239 of 2003 filed by the appellants/accused is hereby allowed.
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20 apeal490.03.odt Impugned Judgment is hereby quashed and set aside.
Appellant Nos.1 to 3 namely Eknath s/o.
Ramdas Motghare, Bablu @ Pradeep Ramesh Kawale, Dewanand Vishwanath Chandankhede are hereby acquitted of the offence punishable u/s.302 r/w. Section 34 of the Indian Penal Code.
Their bail bonds shall stand cancelled.
Fine amount, if paid, be refunded to appellant nos. 1 to 3.
Record and proceedings be sent back to the trial Court.
Fees of Ms N.S.Choubey, learned Counsel for the Respondents in Criminal Appeal No.490 of 2003 is quantified at Rs.5,000/-.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 ::: 21 apeal490.03.odt ::: Uploaded on - 06/12/2017 ::: Downloaded on - 08/12/2017 02:58:12 :::