1 APEAL482-15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.482/2015
...
Vishnu Maroti Deokar, Aged about 24 years, R/o Waghadei Jamb, Tq. and District Yavatmal.
(At present in Central Jail at
Yavatmal) .. APPELLANT
.. Versus ..
State of Maharashtra,
through Police Station Officer,
Yavatmal (Rural). .. RESPONDENT
None for the Appellant.
Mr. J.Y. Ghurde, Additional Public Prosecutor for Respondent.
....
CORAM : B.R. Gavai & Kum. Indira Jain JJ.
DATED : February 27, 2017.
ORAL JUDGMENT (per B.R. Gavai, J. )
1. Being aggrieved by the judgment and order passed by the learned Sessions Judge, Yavatmal in Sessions Trial No.67 of 2014 dated 23.03.2015 thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.500/- and in default of payment of fine to suffer rigorous ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:51:31 ::: 2 APEAL482-15.odt imprisonment for 3 months, the appellant has approached this Court.
2. The prosecution story as could be gathered from the material placed on record in nutshell is thus:-
An oral report came to be lodged on 5.11.2013 by PW1 Deorao Maroti Tumram that on the day of incident he had gone for grazing cattle. At around 5 p.m., he came back to his residence. At that time, PW6 Laxman Narayan Gadekar came to his house and informed that the accused Vishnu and Datta were beating his son- in-law. On being informed, he went there and saw that his son-in- law- the deceased was being beaten. The incident had taken place in the sitting place of Durgadevi. The deceased was brought to the Government Hospital at Yavatmal. However, he succumbed to the injuries at around 6.30 p.m. On the basis of the oral report below Exh.11, the first information report came to be registered below Exh.12. ON the basis of the FIR, the investigation was set into motion. At the conclusion of the investigation, a charge-sheet came to be filed in the Court of the learned Judicial Magistrate First Class, Yavatmal. Since the case was exclusively triable by the learned Sessions Judge, it came to be committed to the Sessions Court.
3. The learned trial Judge framed the charge for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code against the accused no.1 Vishnu and accused No.2 ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:51:31 ::: 3 APEAL482-15.odt Datta. The accused pleaded not guilty and claimed to be tried. At the conclusion of the trial, the learned trial Judge passed the order of conviction as aforesaid insofar as the present appellant/accused no.1 is concerned, however, acquitted the accused no.2 Datta for the charges charged with. Being aggrieved thereby, the present appeal.
4. None for the appellant. With the assistance of the learned Additional Public Prosecutor, we have scrutinised the entire evidence on the record.
5. The prosecution case mainly rests on the evidence of PW6 Laxman Narayan Gadekar and PW7 Bebibai Mahadeo Pendor. Insofar as PW1 Deorao- first informant is concerned, he is not an eyewitness and his evidence is hearsay evidence.
6. PW6 Laxman in his evidence states that on the day of incident he along with the deceased Mahadeo, Ramdas Gadekar and Purushottam Kasarkar were playing cards in the sitting place of Durgadevi. At around 5 p.m., Vishnu Deokar came from back side and he gave two blows of axe on the head of Mahadeo. Mahadeo then fell down. He thereafter gave call to the father-in-law of Mahadeo. Thereupon people gathered there and Mahadeo was taken to the hospital. After sometime he died. The perusal of the cross-examination would reveal that he has admitted that the ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:51:31 ::: 4 APEAL482-15.odt Police inquired with him about the incident after about 5-6 days. A specific suggestion is given to him that there is a political rivalry in the village and the deceased and the said witness were belonging to one group whereas the accused was belonging to another group.
7. PW7 Bebibai states in her evidence that on the date of the incident, she was proceeding towards the shop of Shantabai Mantute for purchasing Nariyal. She found that Vishnu was giving blow with axe to Mahadeo. She further states that she ran away from the place on seeing that the accused was giving the blow with the axe. A suggestion is given to this witness that she was deposing falsely at the instance of Lata, the wife of the deceased. The perusal of her cross-examination would reveal that the witness herself volunteers that she went to the spot after the accused persons had run away and when other persons gathered there. It could thus be clearly seen that she cannot be said to be an eyewitness.
8. The perusal of the record would reveal that the statement of PW7 Bebibai is recorded on 10.11.2013 i.e. after a period of 5 days. Insofar as PW6 Laxman is concerned, his statement is recorded on 12.11.2013. No doubt that mere recording of the statements of witnesses belatedly cannot be fatal to the prosecution case. However, the investigating agency must give explanation for belated recording of the statements. No such ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:51:31 ::: 5 APEAL482-15.odt explanation has been given by the Investigating officer i.e. PW11 Dinkar Thosare. It will be relevant to refer to his following admission in his cross-examination:-
"It is correct that house of Gayabai Raut, Dnyaneshwar Kasalkar, Laxman Mantute were adjacent to the spot. It is not necessary that as they are adjacent resident they may be knowing about incident. I have not recorded the statement of aforesaid three persons. I have not enquired with them. There is no reason for not making enquiry with them."
It could thus be seen that though the independent witnesses who are residing adjacent to the spot of the occurrence were very much available, for the reasons best known to the investigating agency, their statements have not been recorded. Insofar as PW6 and PW7 are concerned, specific suggestions are given to them that on account of political rivalry they are deposing falsely. The inordinate delay in recording their statements is not at all explained.
9. It could further be seen that the alleged recovery of axe on memorandum under Section 27 of the Indian Evidence Act cannot be said to be free from doubt. The blood found on the clothes of the accused is of "AB" group which is not the group of the deceased.
10. In that view of the matter, we are of the considered view that it cannot be said that the prosecution has proved the case beyond reasonable doubt. We find that the accused is entitled to ::: Uploaded on - 01/03/2017 ::: Downloaded on - 02/03/2017 00:51:31 ::: 6 APEAL482-15.odt benefit of doubt.
11. The criminal appeal is allowed. The appellant/accused is acquitted of the offence charged with. He be set at liberty forthwith, if not required in any other case. The amount of fine, if any, paid by the appellant be refunded to him.
(Kum. Indira Jain, J. ) (B.R. Gavai, J.)
...
halwai/p.s.
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