1 jg.apeal.540.05.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 540 OF 2005
State of Maharashtra through,
The Police Station Officer,
Police Station, Bhisi,
Distt. Chandrapur. ... Appellant
VERSUS
(1) Natthu s/o Raoji Bhajbhuje
Aged about 55 years,
(2) Ramesh S/o Natthu Bhajbhuje
R/o Jambhulghat, Tq. Chimur,
Distt. Chandrapur.
(3) Suresh S/o Natthu Bhajbhuje,
Aged about 26 years, Agriculturist,
R/o Jambhulghat, Tq. Chimur,
Distt. Chandrapur.
(4) Subhash S/o Natthu Bhajbhuje,
Aged about 24 years, Tq. Chimur,
Distt. Chandrapur.
(5) Anandrao S/o Natthu Bhajbhuje,
Aged about 20 years, Tq. Chimur,
Distt. Chandrapur. ... Respondents
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Shri I. J. Damle, Additional Public Prosecutor for appellant
Shri S. G. Joshi, Advocate h/f Shri S. S. Ghate, Advocate for respondents
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date : 10/1/2018.
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2 jg.apeal.540.05.odt Judgment (Per : M.G. Giratkar, J.) State/prosecution has filed the present appeal challenging the judgment of acquittal in Sessions Case No. 2/2001 passed by learned Ad-hoc Additional Sessions Judge, Chandrapur.
2. The case of the prosecution/appellant against the respondents-accused in short is as under.
(i) On 20-9-2000, complainant Kanhuji Devhare went to his field at about 5.00 p.m. Accused Anandrao was grazing his bull on the boundary of his field. Complainant objected to his act. Accused Anandrao started quarrel with complainant. He kept mum and returned to home. At about 7.00 p.m. he went to Ganesh Pendal. Accused Natthu was present in the Ganesh Pendal. He complained him about the act of his son Anandrao. All the accused rushed towards him. One Soma Dadmal intervened. All accused went to their home. He also went to his house.
(ii) At about 8 to 9 p.m., complainant again went to Ganesh Pendal for arti (prayer). At that time, his son Shankar came along with Sarpanch.
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3 jg.apeal.540.05.odt (iii) All accused persons came to Ganesh Pendal having sticks
and axe in their hands. P.W. 1 Shankar, son of complainant enquired from Natthu about the incident in the field. At that time, sons of Natthu rushed on their person and started quarrel. Accused Subhash gave blow of axe on the head of Shankar. Shankar fell down on the ground. Brother of complainant, namely, Muka intervened in the quarrel. Accused Ramesh gave blow of axe on his head and shoulder. Muka fell down on the ground. Accused Subhash, Ramesh and Suresh then started beating Muka by sticks. Complainant rushed towards Muka. Accused Ramesh and Suresh beat him by stick on his back. When he tried to snatch stick, all the sons of Natthu lifted him and tried to take him away. Somehow, he rescued.
(iv) After the incident, complainant along with his son Shankar, Rambhau Nagose and Sarpanch went to hospital. Muka was also taken to the hospital. He was declared dead. Thereafter he lodged a report, Exhibit 45 in Police Station, Bhisi. Crime was registered for the offences punishable under Sections 147, 148, 149, 302, 307, 323 of the Indian Penal Code against the respondents. API Dhawde investigated the crime and after complete investigation filed the charge-sheet before the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 4 jg.apeal.540.05.odt Judicial Magistrate First Class, Chimur. Same was committed to the Court of Sessions at Chandrapur.
(v) Charge was framed at Exhibit 27. Same was readover and explained to the accused/respondents. All the accused pleaded not guilty and claimed to be tried. Defence appears to be of total denial.
(vi) The prosecution has examined following witnesses.
(1) P.W. 1 Shankar Kanhuji Devyhare (Exhibit 37) (2) P.W. 2 Damodhar Sadashvi Thakare (Exhibit 38) (3) P.W. 3 Tima Maroti Meshram (Exhibit 41) (4) P.W. 4 Kanuji Adkuji Deware (Exhibit 44) (5) P.W. 5 Purushottam Patiram Suryawanshi (Exhibit 47) (6) P.W. 6 Bhauji S/o Bhikaji Tekam (Exhibit 48) (7) P.W. 7 Pandurang S/o Mahadeo Paturkar (Exhibit 57) (8) P.W. 8 Bhawarao Budhaji Dhawade (Exhibit 59) (9) P.W. 9 Madhukar S/o Motiramji Mahatale (Exhibit 62) (10) P.W. 10 Dr. Aaitshamsher Kazami (Exhibit 69) (11) P.W. 11 Dr. Narendra S/o. Shriram Dange (Exhibit 73) and (12) P.W. 12 Dr. Vijay S/o. Laxman Salkute (Exhibit 83)
(vii) Trial Court recorded statements of accused under Section 313 of Cod of Criminal Procedure. After hearing the prosecution and defence, learned trial Court acquitted all the respondents/accused by impugned ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 5 jg.apeal.540.05.odt judgment dated 30-6-2005. Hence, the appellant/prosecution filed the present appeal.
3. Heard learned Additional Public Prosecutor Shri Damle for the State/appellant. He has submitted that evidence of P.W. 1, P.W. 4, P.W. 5 and P.W. 7 show that accused persons beat P.W. 1 and P.W. 4 by sticks. Accused persons beat deceased Muka by axe. They also beat P.W. 1 by axe. Deceased Muka died due to the act of accused persons. Learned trial Court did not consider the evidence of P.W. 1, P.W. 4, P.W. 5 and P.W. 7 properly and wrongly acquitted all the respondents. Learned Additional Public Prosecutor has submitted that sufficient evidence is brought on record by the prosecution, hence, appeal be allowed and all the respondents be convicted for the offences charged against them.
4. Heard learned counsel Shri Joshi holding for Shri Ghate, learned counsel for the respondents. He has pointed cross-examination of all the material witnesses and submitted that there is material contradictions in their evidence. Learned counsel pointed out cross- examination of Medical Officer Shri Salkute (P.W. 12) and submitted ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 6 jg.apeal.540.05.odt that all the injuries on the person of P.W. 1 Shankar were simple in nature. He did not notice any injury on the person of P.W. 4. His cross- examination shows that injuries noted on the person of Shankar are possible by falling on the ground. Learned counsel pointed out evidence of Dr. Narendra Dange (P.W. 11) and submitted that all injuries found on the dead body of Muka were simple in nature. As per admission in cross-examination of this Doctor, those injuries were possible by falling on the ground.
5. P.W. 1, P.W. 4, P.W. 5 and P.W. 7 are the material witnesses. P.W. 1 and P.W. 4 are the injured witnesses as per the case of prosecution. P.W. 1 has stated in his evidence that all accused persons rushed towards him with axe and sticks. Accused Subhash gave blow of axe on his head. Other accused beat him by sticks. Then his father and uncle Muka intervened. All accused persons dragged his father. When his uncle Muka tried to intervene, he was beaten by axe and sticks. His uncle Muka died on the spot. Material contradiction is brought on record in his cross-examination. He has stated that he was not hit from the reverse of the axe but from it's blade. Potion marked 'A' was pointed him but he denied.
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6. P.W. 4 father of P.W. 1 has stated that he was also beaten in the incident. But P.W. 1 has not stated anything that his father/P.W. 4 was also beaten by accused persons. Medical report of P.W. 4 shows that he did not sustain any injury.
7. P.W. 1 has stated in his evidence that he was beaten by axe. When deceased Muka intervened, he was also beaten by axe and sticks by all the accused persons. It is pertinent to note that P.W. 5 Sarpanch of the village and friend of P.W. 1 supported the case of prosecution. But he has not stated that accused persons gave blow of axe to P.W. 1 and deceased Muka. He has stated that P.W. 1 Shankar was beaten by accused Suresh and Subhash. Subhash gave blow of stick on the head of Shankar. Shankar fell down. When Muka intervened, he was also beaten by stick. He has specifically stated that both the parties (accused and complainant party) were beating each other by means of sticks. He has stated that in the quarrel, Muka fell down. Thereafter they taken him to the hospital.
8. P.W. 7 has stated in his evidence that there was quarrel between accused persons and complainant party. Accused Subhash ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 8 jg.apeal.540.05.odt assaulted P.W. 1 Shankar by means of stick. Later on, Subhash assaulted Shankar by axe on his head. He tried to intervene but his wife taken him to house.
9. Evidence of P.W. 1, P.W. 4, P.W. 5 and P.W. 7 are in respect of the incident. Their evidence appears to be contradictory. P.W. 4 has stated that he was also beaten by accused persons. But P.W. 1 has not stated about beating to his father (P.W. 4). P.W. 1 and P.W. 4 have stated that accused persons beat P.W. 1 by axe and deceased Muka but independent witness P.W. 5 who was the Sarpanch and friend of P.W. 1 clearly stated that there was quarrel between both the group. They beat each other by sticks. During the quarrel, P.W. 1 and deceased Muka fell down. This independent witness not stated that any of the accused gave blow of axe on the person of P.W. 1 or deceased Muka.
10. Medical evidence is very material. P.W. 10 Dr. Kazami examined accused Natthu and Subhash. They were having injuries. P.W. 12 Dr. Salkute examined P.W. 1 and P.W. 4. He found contusion and abrasions on the person of P.W. 1. Accordingly, he issued medical certificate, Exhibit 85. P.W. 12 examined P.W. 4 on next date i.e. on ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 9 jg.apeal.540.05.odt 21-9-2000. He did not find any injury on his person. Accordingly, he issued medical certificate, Exhibit 86. In the cross-examination, P.W. 12 Dr. Salkute has stated that injuries noted on the person of P.W. 1 Shankar are possible if a person fall on the ground.
11. P.W. 11 Dr. Dange conducted postmortem on the dead body of deceased Muka. He found four injuries. All four injuries were of simple in nature i.e. contusions. As per his evidence in cross- examination, he did not notice any injury caused by sharp object. External injuries found on the dead body can be caused if a person fell on hard surface.
12. It is clear from the evidence of P.W. 5, Sarpanch Shri Purushottam Suryawanshi that there was quarrel between two group. In the quarrel, both were having sticks in their hands. They beat each other by sticks. Though P.W. 1 and P.W. 4 have stated that accused Subhash beat P.W. 1 and deceased Muka by axe, but there is no evidence to corroborate their versions. On the other hand, independent witness P.W. 5 not stated anything about causing injury by axe. Independent witness has stated that both parties beat each other by ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 10 jg.apeal.540.05.odt sticks. Therefore, evidence of P.W. 1 and P.W.4 that accused Subhash gave blow of axe to P.W. 1 and deceased Muka is not reliable. Moreover, material contradictions are brought on record in the cross- examination of P.W. 1.
13. Medical evidence also supports the defence of accused. P.W. 12 Dr. Salkute who examined P.W. 1 specifically stated that injuries found on the person of P.W. 1 can be caused by falling on the ground. There is no dispute that P.W. 1 fell down during the quarrel. P.W. 12 not noticed any injury on the person of P.W. 4. P.W. 4 has stated that he was beaten by accused persons by sticks but P.W. 1 not stated anything in respect of beating to P.W. 4.
14. In respect of injury to deceased Muka, though P.W. 1 and P.W. 4 have stated that accused Subhash gave blow of axe to deceased Muka and therefore, he sustained injury and fell down on the ground. This evidence is not supported by medical evidence and the evidence of independent witness P.W. 5. P.W. 5 not stated anything that any of the accused beat deceased Muka by axe. Moreover, evidence of Dr. Dange clearly shows that he did not find any injury by sharp ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 11 jg.apeal.540.05.odt weapon. His cross-examination shows that injuries found on the dead body of deceased Muka can be caused by falling on the ground.
15. There is no dispute that there was quarrel between P.W. 1, P.W. 4 and accused/respondents. As per the evidence of P.W. 5, both parties beat each other by sticks. During the quarrel, P.W. 1 and deceased Muka fell down. As per the admission of Doctor who examined P.W. 1, injuries found on the person of P.W. 1 can be caused by falling on the ground. As per the evidence of Dr. Dange P.W. 11, the injuries found on the dead body can be caused by falling on the ground. Therefore, possibility cannot be ruled out that there was quarrel between two parties. In the quarrel, P.W. 1 and deceased Muka fell down and sustained injuries.
16. Prosecution has miserably failed to prove that accused persons killed deceased Muka by causing injuries by sharp weapon i.e. axe. Prosecution has failed to prove that accused persons attempted to commit murder of P.W. 1 Shankar. On the other hand it is clear that P.W. 1 and deceased Muka sustained injuries during the quarrel by falling on the ground. Learned trial Court rightly considered all the ::: Uploaded on - 17/01/2018 ::: Downloaded on - 18/01/2018 00:50:38 ::: 12 jg.apeal.540.05.odt evidence on record in right perspective and rightly acquitted all the accused/ respondents. There is no merit in the appeal. Hence, we pass the following order.
ORDER
(i) The appeal is dismissed.
(ii) R & P be sent back to the trial Court.
JUDGE JUDGE
wasnik
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