Cr.Apeal.515.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO.515/2003
&
CRIMINAL REVISION APPLICATION NO.139/2003
CRIMINAL APPEAL NO.515/2003
* State of Maharashtra
Through Police Station Officer
Police Station, Pulgaon. .. ..APPELLANT
versus
1) Madhukar s/o Nilkanth Taksande
Aged about 45 years
2) Nilesh s./op Madhukar Taksande
Aged about 20 years
3) Shailesh s/o Madhukar Taksande
Aged about 25 years
4) Sau.Chandralekha w/o Madhukar Taksande
Aged about 20 years
All R/o Laxminarayanpur
Tah.Deoli, Dist.Wardha
Police Station Pulgaon. .. RESPONDENTS
CRIMINAL REVISION APPLICATION NO.139/2003
* Ramesh s/o Mahadeorao Mankar
Aged about 32 years,
R/o Laxminarayanpur
Post.Pulgaon Tq.Deoli, Dist. Wardha... APPLICANT
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Cr.Apeal.515.03
2
versus
1) The State of Maharashtra
Through Police Station Officer
Police Station, Pulgaon.
Dist. Wardha.
2) Madhukar s/o Nilkanth Taksande
3) Nilesh s./op Madhuakr Taksande
4) Shailesh s/o Madhukar Taksande
5) Sau.Chandralekha w/o Madhukar Taksande
All R/o Laxminarayanpur
Po.Pulgaon, Tah.Deoli, Dist.Wardha ..RESPONDENTS
...............................................................................................................................................
Mr. M.J. Khan, APP for the appellant/State
Mr. R.M. Patwardhan, Adv.for respondents
Mr R.P.Joshi, Adv. for applicant in Revision
................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 6th January, 2018 ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Criminal Revision Application No.139/2003 came to be filed by complainant-Ramesh challenging acquittal of accused persons by first Ad-hoc Additional Sessions Judge in Sessions Trial No.88/1999 vide judgment dated 22.5.2003 for offences punishable under sections 302, 324, 114, 201 read with Section 34 of the Indian Penal Code. The said acquittal has been questioned by State Government in Criminal Appeal No. 515/2003.
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Cr.Apeal.515.03 3
2. Accordingly, we have heard APP Khan for appellant/ State Government and Adv. Patwardhan for respondent-accused.
3. Learned APP submits that while writing judgment of acquittal, the trial Court has adopted a wrong approach. It has accepted the plea of self-defence which was never specifically raised during cross-examination of any of the witnesses or then while statements u/s 313 Cr.P.C. were recorded. As there is wrong approach and self- defence has not been established, the submission that there are injuries on accused persons or then that those injuries are not explained by prosecution, is not material. He points out that there are injured witnesses and, in the shape of PW7- Vinod, there is an independent and impartial witness. Their evidence conclusively establishes the fact that accused persons were aggressors and they initially assaulted deceased Suresh @ Suryabhan Mankar in his courtyard and thereafter dragged him to their (accused persons) courtyard. The brutal attack was then committed. He has taken us through spot panchnama and urged that spot panchnama has been accepted by trial Court. He also stated that shortly after the attack, on next day, police have taken search of house of accused persons and weapons used in murder i.e. bamboo stick and iron pipe stained with blood were seized from the house of accused persons. He submits that in this situation, some inconsistent statements here and there could not have weighed with trial Court and judgment of acquittal is unsustainable. ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 :::
Cr.Apeal.515.03 4
4. Adv. Patwardhan, on the other hand, submits that entire story of prosecution is unbelievable. According to him, the so called impartial witness-Vinod has been inserted only because he was obliging complainant. The other neighbours who were natural witnesses and have witnessed the incident have been deliberately not examined. He further submits that injuries sustained by accused persons are not in dispute and the so called injured witnesses or eye witnesses have not seen those injuries and have not stated anything about it. He further state that if story as narrated by prosecution witnesses is accepted, the finding of bloodstains in courtyard of accused persons as also in courtyard of complainant is not explained. He therefore states that entire genesis of the crime has not been established and trial Court has, therefore, correctly appreciated the evidence. He submits that in any case in this situation, the benefit of doubt needs to be given to respondents.
5. With the assistance of respective counsel, we have perused the records.
6. Complainant-Ramesh has pointed out that on date of incident i.e. 9.3.1999 at about 8.00 p.m. there was discussion going on between deceased Suresh @Suryabhan, father of Ramesh, namely, Gulab and other relatives about purchases to be effected for marriage of Ramesh. At that time, accused Madhukar came in front of house of complainant and gave a call from outside asking family members to come out. Accordingly, deceased and others went out and then Madhukar threatened them. Madhukar asked his wife Chandralekh to bring weapons and ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 ::: Cr.Apeal.515.03 5 accordingly accused no.4. Chandralekha brought a sickle and rod from her house. Accused nos. 2 and 3, who are sons of Madhukar, also came. Madhukar along with his sons committed assault and Chandralkeha was instigating him. The deceased was then dragged by accused persons to their courtyard where attack continued. Not only deceased, but other famaily members were also attacked in that courtyard.
7. The trial Court has in its judgment appreciated evidence of all eye witnesses, noticed inconsistencies and found it difficult to believe them. It is to be noted that except Vinod, other persons are the injured or interested eye witnesses. In this situation, their testimony needed cautious consideration and accordingly trial Court has evaluated the same. Not only this, independently it has also looked into the evidence of PW 7-Vinod.
8. Learned APP has relied upon the evidence of PW7-Vinod and according to him, he is an independent, impartial person who has witnessed the incident. The trial Court has commented upon its evidence and found it difficult to believe that a person residing about 700 to 800 feet away from the house and after hearing hue and cry came there. However he has stated that he witnessed the incident from beginning. His evidence shows that he did not see that accused persons had any injuries on them. He has also stated names of other persons who were present at the time of incident and witnessed the attack. His narration shows that accused persons initially quarelled with PW 6 Gulab Mankar and Gulab was trying to pacify them. Accused no.4 ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 ::: Cr.Apeal.515.03 6
-Chandralekha then pulled lungi of Suresh @ Suryabhan and accused persons dragged Suresh in their courtyard and assaulted him. He has also described attack with weapons in courtyard of accused persons. This evidence, therefore, does not explain how there were blood-stains in the courtyard of complainant. The trial Court, therefore, has found that these persons cannot be believed and discarded their evidence. We do not see anything wrong with this evaluation.
9. PW6-Gulab is brother of deceased Suresh @ Suryabhan. His evidence shows that at about 8.00 p.m. In backyard of their house they were discussing about purchase and at that time Madhukar reached near door of their house and shouted "nikal jao sale ghar ke bahar". Thereafter they all came out in front courtyard. He asked Madhukar and Madhukar then told " ab tumko Khatamai karna hai". Then he gave call to his sons and wife and accordingly they came out. After they came out Madhukar asked his wife Chandralekha to bring weapons from his house. Chandrakala then brought an axe and sickle. Accused Nilesh brought a wooden stick with him. She had given the axe to Madhukar and sickle was given to accused Shailesh and then he has pointed out the attack.
10. In cross-examination, he has stated that he did not in his statement to police, point out blow given by weapon rod and axe upon hand of his father by Madhukar. He also stated that entire incident did take place in courtyard of accused Madhukar. He stated that he was not aware whether any other person witnessed that ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 ::: Cr.Apeal.515.03 7 incident. He denied that accused persons sustained injuries in the quarell. He accepted his brother Suryabhan was lying in courtyard of accused persons and injured witnessed were also lying in the courtyard of accused persons.
11. His chief therefore does not explain how they went from their courtyard to courtyard of accused persons. His evidence therefore does not explain as to how in spot panchnama bloodstains were found in courtyard of complainant. The trial Court,therefore, has also found it difficult to disbelieve this witness.
12. The accused persons have asked questions to Vinod about weapons with the family members of deceased. He has stated that he did not see any such weapons with family members of deceased. He has also denied any assault by such family member of deceased on accused persons. He has also denied bleeding injuries on accused persons. Similarly suggestions are also given to Gulab and he has denied the same.
13. In this situation, we cannot accept contention that plea of self defence was not raised by accused persons. On the contrary, in cross-examination of Gulab, he was asked that after heavy consumption of liquor he was abusing accused persons and he has denied it. He has further denied that after taking weapons like wooden stick, iron pipe and sickle they entered the house of accused persons and beat them. He denied that any scuffle did take place and in it, the deceased and his family ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 ::: Cr.Apeal.515.03 8 members sustained any injuries. He has further stated that for very same incident and attack, the prosecution u/s 326 r/ws. 34 of IPC is pending against them in the Court.
14. Though accused persons have tried to demonstrate that they reached Police Station first and their report is earlier in point of time, in present facts, we do not find it decisive.
15. Seizure of so called weapons of attack i.e. bamboo stick and iron pipe/rod from house of accused persons vide seizure memo Exh. 68 does not advance the case of prosecution in any way. No doubt, while seizing these articles, the seizure memo records that same were bloodstained but then C.A. Report at Exh.100 shows that no blood is detected on these articles.
16. In this situation, we find substance in contention of Adv.Patwardhan that genesis of crime itself could not be established by prosecution.
17. Hence, taking overall view of the matter, we find no case made out warranting any intervention in this appeal against acquittal. Appeal is dismissed. Consequently, the Revision is also dismissed. No costs.
JUDGE JUDGE ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 ::: Cr.Apeal.515.03 9 sahare ::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:16 :::