The State Of Maharashtra vs Govinda S/O Ganpat Motghare, ...
2007 Latest Caselaw 385 Bom

JUDGMENT

K.J. Rohee, J.

Page 0889

1. The State has preferred this appeal against the acquittal of the respondents (hereinafter referred to as ''the accused'') of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code by the Additional Sessions Judge, Bhandara in Sessions Trial No. 90/1989 decided on 30.1.1991.

2. Accused No. 1 Govinda s/o Ganpat Motghare and accused No. 2 Bhaurao s/o Ganpat Motghare are real brothers. They are resident of village Belgaon. Sahdeo s/o Kamaji Wat (PW 1), Deodas s/o Kamaji Wat (PW 5) and Shivdas s/o Kamaji Wat (deceased) were real brothers. Shantabai (PW 2) is the widow of Shivdas Wat. Kailash (PW 4), Vilas (PW 3) and Bharat are the sons of Shivdas and Shantabai. All of them are resident of village Belgaon. Accused No. 1 Govinda and accused No. 2 Bhaurao as well as Deodas (PW 5) and Shivdas (deceased) were cultivators and they also used to distill illicit liquor. There was business rivalry between them.

3. Sahadeo, Deodas and Shivdas were residing separately with their family members in the vicinity of each others. During the night between 20 and 21st of September, 1989 Shivdas (deceased) and Shantabai (PW 2) along with their children were asleep in the 'chapri' of their house. PW 2 Shantabai and her sons were awakened on hearing the cries of Shivdas as .melo re bapa. They saw that accused No. 2 Bhaurao Motghare was holding Shivdas, accused No. 1 Govinda Motghare was beating Shivdas with Hammer and accused No. 3 Madhao Marbate was assaulting Shivdas with Barchhi. PW 2 Shantabai came out of the 'chapri', ran towards lane and raised shouts for help. Thereupon the accused persons fled from the place of incident. Several persons including PW 1 Sahadeo Wat and PW 5 Deodas Wat rushed there on hearing the shouts of Shantabai. It was found that Shivdas succumbed to the injuries. Thereupon the Police Patil wrote the report and PW 1 Sahdeo signed it. The said report (Exh.53) was forwarded to Police Station, Mohadi through Out-Post Kardi. On the basis of the said report Crime No. 101/1989 under Section 302 r/w 34 of the Indian Penal Code was registered against accused No. 1 Govinda Motghare and accused No. 2 Bhaurao Motghare at Exh.72. Immediately thereafter investigation commenced. Inquest panchanama (Exh.28), spot panchanama (Exh.27) and seizure panchanama (Exh.30) were prepared. Statements of witnesses were recorded. On the same day PW 6 Dr. Avinash Asaram Rode, Medical Officer, General Hospital, Bhandara conducted post-mortem examination. Besides incised and lacerated wounds, three penetrating wounds in right hypochondrium 2'' x '' were noted. All those injuries were ante-mortem. The probable cause of death was haemorrhagic shock due to massive blood loss. The accused persons were arrested. An iron Hammer was discovered at the instance of accused No. 1 Govinda Motghare. A Barchhi was discovered at the instance of accused No. 3 Madhao Marbate. The Chemical Analysis revealed that human blood was detected on those articles. Baniyan and chaddi of accused No. 1 Govinda Motghare and accused No. 3 Madhao Marbate were seized. The Chemical Analysis revealed that they were stained with human blood. After completion of investigation the accused were charge sheeted.

Page 0890

4. According to accused No. 1 Govinda Motghare and accused No. 2 Bhaurao Motghare, they have a dispute on account of house site with the Police Patil, whereas PW 1 Sahdeo and PW 5 Deodas are on good terms with the Police Patil. They lodged false report against the accused persons in collusion. They tutored PW 2 Shantabai and her sons PW 4 Kailash and PW 3 Vilas to depose false against the accused persons. They have strained relations with PW 7 Deorao s/o Maroti Padole, r/o Mandvi (panch witness) whose land is adjacent to their land and who frequently destroys the boundary strips and takes water through it. Accused No. 2 Bhaurao resides and carries on dairy business at Nagpur. On learning about the arrest of his brother accused No. 1 Govinda, he went to village Belgaon and was arrested by the police. According to accused No. 3 Madhao he is a bidi binder. PW 1 Sahdeo is a Contractor. PW 1 Sahdeo did not pay the dues of accused No. 3 Madhao Marbate from the funds and about 4-5 years back accused No. 3 Madhao Marbate had quarrel with PW 1 Sahdeo on that count and since then their relations are inimical. In fact, he had no enmity with Shivdas (deceased). PW 7 Deorao s/o Maroti Padole runs a flour mill. There was quarrel between PW 7 Deorao Padole and accused No. 3 Madhao Marbate on account of dues of the flour mill. Thus, according to the accused persons, they have been falsely implicated.

5. The prosecution examined PW 2 Shantabai wd/o Shivdas Wat, PW 4 Kailash s/o Shivdas Wat and PW 3 Vilas s/o Shivdas Wat as eyewitnesses to the incident. PW 1 Sahadeo s/o Kamaji Wat and PW 5 Deodas s/o Kamaji Wat are the elder brothers of deceased Shivdas. PW 6 Dr. Avinash s/o Asaram Rode is the Medical Officer who conducted autopsy. PW 7 Deorao s/o Maroti Padole is the panch witness on discovery of the weapons. PW 9 Prabhakar s/o Wamanrao Shesh is the Special Judicial Magistrate. PW 8 ASI Dongre, PW 10 PSI Mishra, PW 11 Dy.S.P. Nimje are the investigating officers.

6. The trial court held that Shivdas met with homicidal death. However, the trial court found that the evidence of PW 2 Shantabai, PW 4 Kailash and PW 3 Vilas is doubtful and is not sufficient to hold the accused persons guilty. The trial court also found that the medical evidence does not support oral evidence of PW 2 Shantabai. The trial court was not convinced about the alleged motive attributed to the accused persons for committing murder of Shivdas. According to the trial Court the possibility of assailants being some other persons than the accused persons cannot be ruled out. The trial court found that the evidence of PW 7 Deorao Padole is tainted with extraneous consideration and that the so-called discovery appears to be manipulated one. The trial court observed that the prosecution examined only the interested witnesses and gave up important independent witnesses. The trial court, therefore, acquitted the appellants. The present appeal is directed against the said acquittal.

7. We have heard Mr. Y.B. Mandpe, APP for the appellant/state and Mr. K.R. Lambat, Advocate for the respondents/accused. We have also gone through the record and proceedings of the trial court with the assistance of the learned Counsel for the parties.

8. The learned APP assailed the judgment of the trial court by submitting that the trial court did not properly appreciate the evidence of PW 2 Shantabai supported by her sons PW 4 Kailash and PW 3 Vilas. The trial court was Page 0891 influenced by the omissions and improvements which are not material so as to affect the veracity of the testimony of these witnesses. The learned APP further submitted that there is no variance between the ocular evidence and the medical evidence. The learned APP submitted that the prosecution has established the guilt of the accused persons beyond doubt and that they were liable to be convicted for the offence with which they were charged.

9. The learned Counsel for the accused persons, on the other hand, justified the impugned judgment of acquittal. He submitted that there is no perversity in the judgment of the trial court and the judgment of acquittal needs to be maintained.

10. We have carefully considered the rival contentions. It may be noted that it is an established fact that accused No. 1 Govinda and accused No. 2 Bhaurao so also PW 5 Deodas and deceased Shivdas were engaged in distillation of illicit liquor and on account of this, there was business rivalry between them. This forms motive on the part of accused No. 1 Govinda and accused No. 2 Bhaurao to kill Shivdas. The trial court observed that sometime before his death, Shivdas had left distillation of illicit liquor and the cause of business rivalry ended and as such it cannot firm motive behind the crime. At one place the trial court observed that there was dispute concerning right of way through the field of Shivdas between them and some other persons and that the possibility of assailants being some other persons than the accused persons cannot be ruled out. In our humble opinion, there is no basis to think that those persons with whom PW 5 Deodas and deceased Shivdas had dispute about right of way would go to the extent of killing Shivdas.

11. It may be noted that deceased Shivdas was residing with his wife Shantabai (PW 2) and sons Kailash (PW 4) and Vilas (PW 3). His brothers Sahadeo (PW 1), Deodas (PW 5) were residing in separate houses near his house. On the fateful night Shivdas and Shantabai had slept in the chapri of their house with their children. According to PW 2 Shantabai in the midnight she was awakened on hearing the shouts raised by her husband as ...are bap re.... When she got up she saw that accused No. 2 Bhaurao Motghare had caught hold of Shivdas and accused No. 1 Govinda Motghare was assaulting Shivdas by means of Hammer and accused No. 3 Madhao Marbate was assaulting Shivdas by means of Barchhi. PW 2 Shantabai immediately ran out of the 'chapri' and raised alarm for help. On hearing her shouts several persons including PW 1 Sahadeo and PW 5 Deodas rushed there. PW 2 Shantabai told them that Govinda Motghare (accused No. 1), Bhaurao Motghare (accused No. 2) and Madhao Marbate (accused No. 3) assaulted Shivdas and injured him. In the meanwhile the accused persons disappeared from the scene of offence. Thereafter Shivdas was found dead. Omissions in her statement before the police in respect of accused No. 1 Govinda assaulting Shivdas with Hammer and accused No. 2 Bhaurao holding Shivdas have been brought on record. She contradicted her statement recorded by the Special Judicial Magistrate (PW 9) that she had told before the Special Judicial Magistrate that accused No. 3 Madhao gave blow by Hammer on the head of her husband. Another contradiction about the number of assailants being only three was brought in her statement recorded by the police. Before police she stated that there were four assailants and she did not identify the fourth person. Page 0892 Despite these omissions and contradictions the integral part of her version is unchanged and it cannot be said that her testimony is untrustworthy.

12. PW 4 Kailash, aged about 11 years and PW 3 Vilas, aged about 9 years, are the sons of deceased Shivdas. They were sleeping in the 'chapri' with their father and mother Shantabai (PW 2). They were awakened on hearing the cries of their father ...are bap re.... They saw their mother shouting for help. They also saw all the three accused persons assaulting their father with Hammer and Barchhi. They were frightened and they ran with their mother. During their cross examination omissions as regards holding of the hammer by accused No. 1 Govinda was brought out. It may be noted that by and large they have corroborated the testimony of their mother PW 2 Shantabai. The omissions in their statements recorded by the police during investigation in fact gives credence to their testimony before the court. They are equally natural witnesses like their mother Shantabai (PW 2). They being of tender age and their father having been assaulted in their very presence, there appears little possibility that they would falsely implicate the accused persons.

13. It seems that much was made about the identity of the assailants by PW Shantabai. It has come in evidence that the street lights had gone off at the time of the incident, but it has very much come in the testimony of PW Shantabai that she could identify the accused because there was dim light of the bulb in the 'chapri'. Considering the fact of existence of light though dim, the distance between her husband and PW Shantabai and the fact that the accused persons are the residents of the same village, there is every possibility that PW Shantabai must have identified them. We find nothing doubtful in the testimony of PW Shantabai at least as regards accused No. 1 Govinda Motghare and accused No. 2 Bhaurao Motghare. Though about the presence of accused No. 3 Madhao Marbate, we find it difficult to accept the testimony of PW Shantabai because of the non-disclosure of the name of accused No. 3 Madhao Marbate by PW 2 Shantabai to PW 1 Sahadeo and PW 5 Deodas who rushed soon after the incident so also because of the absence of the name and role of accused No. 3 Madhao Marbate in the FIR (Exh.53). In our opinion, benefit of doubt can be extended to accused No. 3 Madhao Marbate.

14. It was observed by the trial court in para No. 12 of the judgment that looking to the injuries of Shivdas and the medical evidence of Dr. Rode (PW 6) it appears improbable that the Hammer (Art. 12) was used in the assault. Injuries on the head and face of Shivdas were incised wounds and lacerated wounds and there was not a single contusion on the head or face. Both the ends of Hammer are blunt and it is not possible to cause incised wounds by the hammer. It is further observed that the hammer (Art. 12) is so heavy and that if one gives blow by the hammer on the head there would be fracture of skull bones. According to Dr. Rode there was no internal injury corresponding to the external injuries of head and face. The trial court inferred that since there was no fracture to bones nor contusion on head the hammer (Art. 12) must not have been used in the assault. The trial court concluded that the medical evidence does not support to oral evidence of PW Shantabai and her sons.

Page 0893

15. It may be noted that it seems from the evidence of PW Shantabai that she saw the assault only for a fraction of second and in such situation she could not have seen the use of hammer on specific part of the body of her husband. It may be noted that the hammer might not have been used at all and only Barchhi might have been used for causing incised wounds as well as penetrating wounds. It may be noted that except injury No. 3 (namely three penetrating wounds in right hypochondrium 2'' x '') other injuries were simple. From this one cannot jump to the conclusion that there is variance between ocular evidence and medical evidence.

16. About the reference of the fourth assailant being not identified, the testimony of PW Shantabai cannot be doubted. It may be remembered that she must have been in panic on seeing assault on her husband by number of persons and she may not have been able to give exact number of the assailants. In our view, it would not affect her veracity but would strengthen it.

17. It may be seen that hammer was discovered at the instance of accused No. 1 Govinda Motghare. PW 7 Deorao Padole r/o. Mandvi deposed about the discovery of hammer at the instance of accused No. 1 Govinda Motghare and discovery of Barchhi at the instance of accused No. 3 Madhao Marbate. Both these discoveries are from the public place accessible to all. It has come on record that the hammer belongs to some other person and it is not established as to how accused No. 1 Govinda Motghare got the hammer. However, one thing is certain that on hammer as well as barchhi human blood was found and the accused persons did not give any explanation for that. The trial court disbelieved the evidence of PW 7 Deorao Padole because he comes from another village and he had strained relations with accused No. 1 Govinda Motghare and accused No. 2 Bhaurao Motghare on account of land dispute. The trial court observed that the so-called discovery appears to be manipulated one. In our view, even if this piece of evidence about discovery of the weapons is not taken into account, the evidence of PW 2 Shantabai and her sons PW 4 Kailash and PW 3 Vilas is enough to establish the guilt of accused No. 1 Govinda Motghare and accused No. 2 Bhaurao Motghare. The reasons given by the trial court for discarding the testimony of PW Shantabai are not at all convincing. She is the most natural witness to the incident of assault on her husband. The trial court has not considered this aspect and as such the judgment of the trial court suffers from perversity. There was no opportunity for her to falsely implicate the accused persons in the assault on her husband. It appears highly improbable that she would depose false at the instance of PW 1 Sahadeo and PW 5 Deodas (the elder brothers of her husband) merely to implicate the accused persons falsely.

18. We are aware of the legal position expounded by the Apex Court in dealing with the appeals against acquittal, which is as under :

In (i) Shingara Singh v. State of Haryana and Anr.

(ii) State of Rajasthan v. Bhanwar Singh and Ors. 2004 AIR SCW 3985,

Page 0894

(iii) State of U.P. v. Shri Krishan 2005(1) Crimes 200 (SC),

(iv) Ayodhya Singh v. State of Bihar and Ors. ,

(v) Kallu @ Masih v. State of M.P. 2006(1) Crimes 1 (SC)

it has been explained by the Apex Court that: .It is well settled that if on the same evidence two views are reasonably possible, where the Court below takes a view in favour of the accused, the Appellate Court will not set aside the order of acquittal unless it finds the findings to be perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons.

19. However, in the present case we find that the appreciation of evidence by the trial Court is perverse. The trial Court has not appreciated the evidence of eye witnesses namely Pws 1,3 and 4 in correct perspective and, therefore, has drawn incorrect, illegal and unwarranted conclusions and the same are clearly impermissible from the evidence available on record.

20. Thus we find that the prosecution has succeeded in proving the guilt of accused No. 1 Govinda Motghare and accused No. 2 Bhaurao Motghare beyond doubt. We, therefore, hold them guilty for the offence punishable under section 302 r/w 34 of the Indian Penal Code for having caused homicidal death of Shivdas. Hence we proceed to pass the following order :

(i) The appeal is partly allowed.

(ii) The acquittal of accused No. 1 Govinda s/o Ganpat Motghare and accused No. 2 Bhaurao s/o Ganpat Motghare is set aside. They are convicted for the offence punishable under section 302 r/w Section 34 of the Indian Penal Code and are sentenced to suffer imprisonment for life and to pay fine of Rs. 5,000/-each in-default to suffer R.I. for one year each. Their bail bonds are cancelled. They are directed to surrender within two weeks to serve out the sentence.

(iii) The acquittal of accused No. 3 Madhao s/o Rajaram Marbate is, however, confirmed.