The State Of Maharashtra vs Datta Rajaram Naik, Ganesh @ Balu ...
2004 Latest Caselaw 599 Bom

JUDGMENT

R.S. Mohite, J.

1. This is an appeal filed by the State against the judgment and order passed by the II Additional Sessions Judge, Thane on 14.1.1992 in Sessions Case No. 229 of 1991 acquitting the three accused of offences punishable under Section-452 and 302 read with 34 of the Indian Code.

2. The brief facts of the prosecution case are as under:

a) That, deceased Prakash Gopal (sic) was a builder residing at Kalwa and had constructed two buildings in the said area. Accused No. 3-Dinesh was another builder who had constructed a building by name Gurukripa by the side of the buildings constructed by deceased Prakash. Waste and sewerage water was flowing from the building of accused No. 3 towards the buildings of deceased Prakash and in order to stop this nuisance deceased Prakash had constructed a wall about 15 days prior to the date of the incident i.e. 15.1.1991. Construction of this wall was a bone of contention between the parties and accused Nos. 1 to 3 had discussed the matter with deceased Prakash.

b) P.W. No. 1-Lata Pandurang Chavan is the real sister of the deceased. She is married lady and resides at some other place at Kalwa. According to her, on 14.1.1991, at about 6.00 or 7.00 p.m. she saw the accused Nos. 1 to 3 standing near the disputed wall and disclosed this fact to her mother. She claims to have spent the night between 14.1.1991 and 15.1.1991 with her mother as she had quarreled with her husband. Her mother was residing in a flat in the same building on the ground floor.

c) Deceased-Prakash used to sleep in a room by the side of his office which was in front of the building. Another brother of the deceased by name Mangesh was residing elsewhere. According to P.W. No. 1-Lata at about 4.40 a.m. her brother came and informed her that Prakash had been assaulted in the room where he was sleeping. Then, Lata and her mother immediately rushed to that room and found that Prakash was lying in a pool of blood. She lifted him and enquired from him as to who had assaulted him. At that stage, deceased Prakash is alleged to have disclosed to her that he was assaulted by accused No. 1 Datta Naik and others. Lata alongwith some servants of the deceased by name Chandu and Mangesh then brought deceased Prakash to Police Station and P.S.I. then asked them to take Prakash to the Civil Hospital and therefore, he was taken to Civil Hospital, Thane where he was declared dead. Post mortem notes indicate that Prakash had as many as 22-wounds on his body. The cause of death was shown as Cardio-respiratory arrest due to multiple injuries, specially head injury leading to haemorrhagic shock.

d) P.W. No. 7 P.S.I. Vinayak Choudhary received a message that deceased Prakash had been attached and admitted in hospital. He took two police constables and went to the place of offence and kept the guard of two policemen at the place and then came to the out post. At that time, P.W. No. 1 came there and she (sic) the complaint, on the basis of which, the crime was registered. The F.I.R. was then forwarded to Rebale Police Station. This witness took photographs of the scene of offence and recorded the statements of witnesses Anjayya, Chandu Jaiswal and Ramdas Waoh. He Drew the scene of offence panchanama and attached cover of pillow and earth smeared with blood at that place. He then handed over investigation to P.W. No. 8- Ganesh Vitthal Ajinkya who obtained the clothes of the deceased, advanced medical certificate and arrested all the accused at Village Kharegaon on 20.1.1991. Discovery is said to have been made at the behest of accused No. 1 of some weapons which were thrown in the bushes of Village Kharegaon Pakhadi. These weapons were Chopper and dagger and were said to have been stained with blood. These weapons were seized under Panchanama Exh. 13. On 22.1.1991, further discovery was said to have been made at the behest of accused No. 1 under which he agreed to produce the clothes from his own house,. Accordingly, his clothes were seized from his own house under a panchanama Exh. 16. Similar discovery is said to have been made of blood stained clothes from the house of accused No. 2 Again a third discovery is immediately said to have been made at the behest of accused No. 3 again from the loft of the bathroom and latrine in his own house. On 22.1.1991, the Investigation Officer recorded the statement of one Santosh Janardhan Patil. On 23.1.1991, he sent a requisition to the Medical Officer for sample of blood and he sent all the muddemal articles to the forensic Laboratory and in due course he received Chemical Analyser's report. On 29.1.1990, he sent a requisition to the J.M.F.C. for holding an identification parade for identification of the accused and the test identification parade was held on 22.1.1991 in which P.W. No. 2-Anjayya is said to have identified accused Nos. 1 to 3. Thereafter, on completion of investigation, the Investigation Officer filed a charge-sheet.

e) On Committal of the matter to the Court of Sessions, the court framed charges under Section-452 and 302 read with 34 of Indian Penal Code. On behalf of the prosecution, in all nine witnesses were examined to prove the case against the accused. The defence of the accused was that of total denial. Considering the material on record, the Trial Court on appreciating the Evidence on record acquitted all the accused.

3. We have perused the record and heard both sides. In our view, the reasons given for the acquittal cannot be faulted and are reasonable and cogent. The following discrepancies exist in the evidence on account of which the benefit of doubt is required to be given to the accused.

a) The sole eye witness P.W. No. 2 Anjayya is a person who claims to be the servant of the deceased Prakash. He claims to be sleeping in the same room with the deceased Prakash on the night of the incident. The room in which deceased Prakash was sleeping was a small room admeasuring 10x10 ft. It is not disputed that the other servants by name Chandu, Sanju and Sugriv were sleeping in some other room. This witness states that he woke up on the hearing of cries but was in a sleepy mood. First, he saw that the Prakash was lying in a pool of blood on the ground below the cot. On seeing the pool of blood he was frightened. On seeing the said incident, he closed his eyes. Yet he saw that the accused No.1-Datta and two other assailants Dinya and Balya assaulting Prakash. He claims to be standing in the room itself. The assailants who saw him are said to have left the room. According to this witness, he immediately went to inform the incident to Sanju. In his evidence, this witness further claims that he had gone to the police station alongwith P.W. No. 1-Lata After occurrence of the incident. At that time police had enquired with her as to whether there were any eye witnesses to the incident. He claims to have informed the police that he was an eye witness and that he was willing to lodge a complaint but further claims that inspite of this, police did not record his complaint. We find that this version is very suspicious. If this witnesses was an eye witness who had narrated the incident to the police when he went alongwith Lata, in normal course, the statement of this witness would have been recorded as the first information Report particularly when P.W. No. 1-Lata was not an eye witness to the incident.

b) Further, this witness claims to have known accused No. 1-Datta. Inspite of this, police had felt the need to hold an identification parade in order to show that the assailants were identified by this witness.

c) As regard the identification parade mentioned hereinabove, the version of P.W. No. 2-Anjayya is that he did not know the names of accused Nos. 2 and 3 but he came to know their names and they were shown to him by the police at the time of identification parade. He admitted that when he went for identification parade, accused Nos. 2 and 3 were shown to him by the police. Their names were disclosed to him before the identification parade and it is only thereafter that he identified these accused in the identification parade. It is clear from this evidence that, the evidence pertaining to the identification parade is a farce and it has been rightly held to be so by the trial Court.

d) That neither Chandu nor any other servant or other residents of the building like the mother of the deceased who came to see the deceased Prakash alongwith Lata and the wife of the deceased were examined.

e) As regards the oral dying declaration said to have been made by the deceased Prakash to his sister Lata, we find that the same is not reliable. Firstly Lata would not have been present in the building in normal course because she resides elsewhere with her husband in Kalwa town. She claims to have come to her mother's place because she had quarreled with her husband. This has been proved to be an omission in her police statement and it is material, because it is the reason given by the prosecution for her presence in the building. Secondly, in her examination-in-chief, she had stated that deceased Prakash disclosed to her that he was assaulted by Datta-accused No. 1 and others. In her cross-examination, she stated that immediately after entering the room she had asked Prakash what had happened but he had not answered the question as he was not in a position to speak loudly, she claims to have therefore, put her ear to the mouth of the deceased and heard his declaration. However, it has been brought on record in her cross-examination that she has not stated in the F.I.R. that deceased Prakash had disclosed to her that other persons had assaulted him. That she had also not disclosed in the F.I.R. that she had to lift the head of Deceased-Prakash before he could make a disclosure. It must be borne in mind that there were 22 incised wounds grievous in nature on the body of the deceased Prakash. It is very difficult to accept that he would have been in a position to make any disclosure.

f) As regards the evidence of Lata, she claims to have seen accused Nos. 1 to 3 in the evening at about 7.00 p.m. standing at the disputed wall. this aspect has been brought on record as an omission in the police statement. Further, P.W. No. 1 Lata claims that P.W. No. 1 Anjayya disclosed to her the names of the assailants but this fact is not even supported by P.W. No. 2 Anjayya in his own deposition.

g) As regards discovery of the weapons, the two panch witnesses have not supported the prosecution and this is a ground on which this evidence is held to be doubtful. Similarly, as regards discovery of blood stained clothes from the house of these accused persons, the court has observed that these discoveries were also suspicious because all the discoveries were shown to have been made piecemeal. It has been observed by the Court that accused No. 1 was said to have made a statement earlier on 17.1.1991 but had not offered to produce his blood stained clothes.

h) Taking into account the aforesaid reasons, in our view, it cannot be said that the findings given by the Trial Court are so perverse so as to warrant any interference in an appeal against the acquittal. In the circumstances, the appeal is dismissed. Bail bonds to stand cancelled.

All concerned to Act on the copy of this order duly authenticated by the C.S./Sheristedar of this court.