Arvind Raghunath Kadam vs Pandurang Shankar Kadam, Ramesh ...
2003 Latest Caselaw 722 Bom

JUDGMENT

J.G. Chitre, J.

1. Petitioner absent. None present for him. So also Respondent Nos. 1 and 2 absent. None present for them. Shri Saste present for Respondent No. 3. State of Maharashtra.

2. By this revision application, the petitioner has assailed the correctness, propriety and legality of the order passed by Sessions Judge Ratnagiri in Sessions Case No. 9 of 1995 by which the learned Sessions Judge acquitted. Respondent Nos. 1 and 2 of the charge framed against them for the offence punishable under Section 302 read with Section 34 of IPC.

3. The prosecution case in brief can be stated as mentioned below:-

4. Deceased Gangaram Kadam was the resident of village Posara-Budruk and he was residing in a hamlet known as Sadewadi alongwith his wife Geeta, his parents Raghunath and Laxmibai, his brothers Shantaram and Arvind, sister Chandra, sister-in-law Jayashree and other family members. The said family owned a paddy and situated in the precincts of village Koyadar. Respondent Nos. 1 and 2 are the real brothers and they are cousins of deceased Gangaram. They were also resident of village Posara-Budruk and their house was situated at a distance of 60 to 70 feet from the house of the deceased. They also owned a land. It was towards the East of the land of the deceased. There was a footpath running along the boundary of the land of the deceased Gangaram in the past. Respondent Nos. 1 and 2 used to take their cattle by the said footpath but thereafter, as the prosecution case shows, they abandoned it and they insisted that they were entitled to take the cattle through the land of deceased Gangaram and on account of that there was a dispute between the deceased Gangaram and Respondent Nos. 1 and 2 on the other side. On 25.7.1994, at about 5.30 p.m. police patil of village Posara-Budruk called a meeting in the said land of deceased Gangaram for settling the dispute between them. But the dispute could not be settled. On the contrary, there was some difference between Respondent No. 1 and 2 on one side and deceased Gangaram on the other side.

5. As per the prosecution case, after the said meeting at 6.15 p.m. when the deceased,his parents, his wife and brothers were present in the house, Respondent Nos. 1 and 2 went there and challenged the deceased and threatened him by expressing their intention to take the revenge. Thereafter at 6.45 p.m. deceased Gangaram went to Zorewadi, another hamlet situated at some distance from Sadewadi to meet one Ramaji Zore who was ill. After meeting him, deceased gangaram left the house of Ramaji Zore and started coming to his house but was murdered near a streamlet in the way. As he did not return to his house, his brothers went for searching him and after interrogation Ramaji Zore they learnt that he had left his house. As they did not find while coming to the house of Ramaji Zore, they took the help of the residents of Zorewadi and by the help of a patromax they searched and found that the dead body of Gangaram was floating on the water of the said streamlet. An information was given to the police. The F.I.R. of Arvind was recorded, investigation started. During the investigation some blood stained clothes were recovered at the instance of the accused. They were Articles 11 to 14. A danger was also recovered from a cavity of a tree (locally called as dholi) at the instance of respondent No. 2 (accused No. 2).

6. The learned Sessions Judge, after appreciating the evidence on record and discussing every circumstance came to the conclusion that the prosecution did not prove the guilt of respondent Nos. 1 and 2 beyond reasonable doubt. He dismissed those circumstances by discussing the evidence. He concluded that the said quarrel could not be the motive for committing the murder of deceased Gangaram. By pointing out that there was no mention of it in the FIR Exhibit-16 and PW Arvind also did not state anything about that in his evidence. He pointed out in his judgment that the knife - dagger was not voluntarily discovered to have been kept in the said cavity of the tree at the instance of respondent No. 2 but there was ground to believe that he was required to sign over the said memorandum by giving a threat to him. The learned Judge also dismissed the evidence of PW-6 Ramchandra Mestri who as per the prosecution case prepared the said dagger article No 9 for accused No. 2 Ramesh on the day of Sankrant of 1993. The learned Judge pointed out that the statement of Ramchandra Mestri was recorded very late and prosecution was unable to give any explanation about this delay.

7. The learned Judge has discussed the evidence at length and has given the reasons justifying his conclusions. So far as the law relating to the circumstantial evidence is concerned, the prosecution is obliged to prove each circumstances by reliable evidence and is obliged to prove link between those circumstances by reliable evidence and the chain of circumstances should be strong enough to exclude any hypothesis pointing towards innocence of the accused. If the prosecution proves such strong link of circumstances, they only it can bid for a conviction against the accused in the criminal prosecution. In this case, the circumstances put forth for proving the guilt of respondent Nos. 1 and 2 (original accused Nos. 1 and 2) are so weak that by no stretch of imagination it can be said that the prosecution was able to prove the guilt of the accused - respondent Nos. 1 and 2 beyond reasonable doubt.

8. It has been held by the Supreme Court in the matter of Shivaji Genu Monite v. State of Maharashtra, that at the time of deciding whether the High Court should set aside an order of acquittal passed by the trial Court, the High Court should be very slow. High Court should set aside an order of acquittal only in exceptional cases where the order is inconsistent with the evidence on record, legal provisions. It can also set aside the order of acquittal when the said order of acquittal is perverse and not borne out by the evidence on record. In the present case, this Court does not find any ground to dissettle the order of acquittal passed by the Sessions Judge, Ratnagiri as mentioned above which has been impugned in this application. Thus, the revision application stands dismissed.

9. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.