Rahul S/O Dhnyaneshwar Shende And ... vs The State Of Maharashtra Through ...
2015 Latest Caselaw 144 Bom

    apeal310.12                                                                   1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH




                                                                      
              CRIMINAL APPEAL NO.  310  OF  2012




                                              
    1. Rahul s/o Dhnyaneshwar
       Shende, aged about 32 years;




                                             
    2. Dilip s/o Deorao Naik,
       aged about 49 years;




                                     
    3. Shamsundar s/o Deoraoji Naik,
       aged about 36 years;  
    All appellants r/o Minimatanagar,
    Walde Society, Nagpur.                   ...   APPELLANTS
                            
                  Versus

    The State of Maharashtra
      


    through Police Station Officer,
    Police Station Kuhi,
   



    District - Nagpur.                       ...    RESPONDENT


    Shri C.H. Jaltare, Advocate for the appellants.





    Ms. N.P. Mehta, APP for the respondent - State.
                       .....

                          
                    CORAM :   B.P. DHARMADHIKARI &





                               P.N. DESHMUKH, JJ.

DATE OF RESERVE : JULY 15, 2015.

DATE OF PROUNOUCEMENT : AUGUST , 2015.

JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

The appellants question the judgment dated

10.07.2012 delivered by the Additional Sessions Judge-5, Nagpur,

in Sessions Trial No. 53 of 2011, convicting them of the offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code and sentencing them to suffer life imprisonment and to

pay fine of Rs.1,000/- each, in default of payment of fine amount,

they have to undergo further R.I. for three months. For the offence

punishable under Section 307 read with Section 34 of I.P.C., they

are sentenced to suffer R.I. for five years and to pay fine of

Rs.500/- each, in default of fine they have to undergo further R.I.

for two months.

2. The Accused Nos. 1 to 3 are convicted under Section

324 read with Section 34 of I.P.C. and sentenced to suffer R.I. for

one year and to pay fine of Rs.500/- each, in default of payment of

fine, they have to further undergo R.I. for two months. These

accused are also convicted under Section 341 read with Section 34

of I.P.C. and sentenced to suffer R.I. for one month and to pay fine

of Rs.100/- each, in default they have to suffer R.I. for 15 days.

3. Briefly stated prosecution case is that on 12.10.2011 at

about 10.00 PM, the complainant - Sanjay (PW-1), his father -

Waman (PW-2) and his deceased brother Ishwar were coming from

their field at Village - Hudpa, after loading harvested Soyabean in

the tractor. The complainant - Sanjay was driving it. The

deceased Ishwar along with Amit Badge (PW-3) and Mahadeo

Shende were riding on the motorcycle in front of the tractor. At

about 12 O' clock in the night, they reached near Bus stand of

village Mandhal. The accused riding on motorcycle came from

behind, overtook the tractor and intercepted motorcycle of Ishwar,

they got down from the motorcycle and Accused No. 1 - Rahul

assaulted Ishwar on his neck by Gupti, due to which Ishwar fell

down. Sanjay and Waman ran towards them. Accused No. 3 -

Shamsundar assaulted his father on his abdomen and right elbow.

Accused Dilip assaulted complainant Sanjay on his left middle

finger. All three accused then ran away. Sanjay searched for a

jeep near village - Mandhal but could not find any. In the

meanwhile, police had reached the spot and his brother Ishwar was

found dead lying on the spot. Waman and Ishwar were taken to

hospital by police. The complainant - Sanjay then lodged report at

Police Station Kuhi.

4. The Police, after completing investigation, submitted

charge sheet in the court of J.M.F.C. at Kuhi. That Court vide

order dated 07.01.2011 submitted the matter to Sessions Court.

The Sessions Court then conducted the trial and delivered

judgment as mentioned supra.

5. It is here necessary to note that the appellants gave

their defence in writing as a part of their statement under Section

313 of the Code of Criminal Procedure. They have stated that

accused No. 2 - Dilip Naik purchased agricultural land at Mouza

Hudpa on 03.08.2006 from one Prashant Meshram and Dilip

Meshram for a consideration of Rs.2,35,000/-. At the time of

incident accused No. 1 - Rahul and accused No. 3 - Shamsundar

were proceeding to village Mandhal after watching Navratri

programme. They noticed one tractor full of Soyabean and

members of Dahake family were present there. Those members

were Ishwar Dahake, Waman Dahake and Sanjay Dahake.

Shamsundar then inquired whether Soyabean was stolen from

their field at Hudpa. The members of Dahake family and people

with them had a scuffle with accused Nos. 1 & 3. Shamsundar fell

down and Ishwar sat on his chest and started beating him. PW-2 -

Waman Dahake was holding weapon like Gupti and Waman

inflicted the injury by that gupti on the forehead of Shamsundar.

When Waman attempted second blow, it by mistake landed on the

neck of Ishwar. This led to commotion. As Shamsundar and

Ishwar were lying injured, accused No. 1 - Rahul went to Police

Station, Kuhi, and communicated the incident. He was asked to sit

there. After sometime, Police arrived at Police Station and put him

in lock up. Accused Nos. 1 and 3 claimed that they did not assault

anyone and accused No. 2 - Dilip was not along with them.

6. We have heard Shri Jaltare, learned counsel for the

appellants and Ms. Mehta, learned APP for the respondent.

7. Shri Jaltare, learned counsel submitted that the

members of Dahake family had attempted to disturb their

possession of agricultural field at Mouza Hudpa even in the past.

Soyabean was of accused Nos. 1 to 3. By visiting the agricultural

land at Hudpa at late hours in the night and by bringing with them

the people of their own village, Soyabean was stolen. Accused

Nos. 1 to 3 who were returning to Mandhal, saw members of

Dahake family along with Soyabean and hence made inquiry. In

this situation, the members of Dahake family and so called labours

with them assaulted accused persons. He has emphasized the

direction of injury on the neck of Ishwar. He submits that it has

been caused when Ishwar was sitting on Shamsundar. He points

out that Shamsundar also sustained grievous injuries inasmuch as

in said attack his ribs were broken. According to him, story of

prosecution that the very same gupti was used turn by turn by

three accused to injure three different persons of Dahake family is

unacceptable and unnatural. He also submits that accused No. 2 -

Dilip Naik was not present on the spot and Reporter - PW-1 Sanjay

had taken name of Dilip Meshram as accused.

8. Accused No. 2 had lodged a complaint against Dahake

family that Dahake family was stealing his crop even in the past i.e.

on 25.10.2006, 16.11.2006, 17.06.2009 and 27.06.2009. In this

background, he has also pointed out that the alleged weapon of

attack has been mentioned to be knife at some places and as gupti

at some other places. The injuries sustained by Waman were

disclosed to be by knife initially and accordingly, the same were

mentioned in requisition sent by the police to Medical Officer vide

Exh. 137.

9. The omissions in statement of PW-1 - Sanjay are

pressed into service and it is pointed out that though Sanju claimed

that he made phone call to Police Station, police does not have any

record of such call. He argues that it is accused No. 1 - Rahul, who

informed police and, therefore, police reached the spot.

10. The evidence of PW-2 - Waman is also challenged by

him by stating that the prosecution has recorded several statements

of Waman and also other members of Dahake family and all those

statements have not been produced before the trial Court. PW-2 -

Waman has accepted that accused came from front and hence has

falsified the version of other prosecution witnesses that accused

persons came from behind i.e. chasing or following members of

Dahake family. It is submitted that on the gupti recovered allegedly

by police under Section 27 of the Evidence Act at the instance of

accused No. 1 - Rahul, no blood stains were seen. The members of

Dahake family, who travelled a distance of more than 60 kms. to

harvest Soyabean had come prepared with weapons and PW-2 -

Waman handed over a different gupti to police.

11. The prosecution as also trial Court has overlooked the

fact that Shamsundar was also lying on the spot of the incident. He

has attacked spot panchnama to urge that it does not record the

correct position and place where Shamsundar was lying. He has

also invited attention to map drawn by the police authorities to

substantiate this contention. He submits that PW-3 - Amit cannot

be said to be a labour as he owns 18 acres of land. The story made

by the prosecution through Amit is attacked as after thought.

According to Shri Jaltare, learned counsel, the prosecution

developed a story that accused No. 3 - Shamsundar, who had run

away then came back and villagers attacked him. Thus,

Shamsundar developed injuries because of attack by villagers. Even

PW-6 - Mahadeo Tiwade has also spoken on the same lines in his

evidence but in cross examination, he accepted that he did not tell

anything to police about the incident.

12. Insofar as seizure of gupti from accused No. 1 - Rahul

is concerned, he argues that witnesses there to have turned hostile.

He further invites attention to requisition at Exh. 97 sent by the

police to Medical Officer pointing out the injuries sustained by

Shamsundar and blame therefor cast upon Dahake family.

13. By placing reliance upon the evidence of Doctor

examined as PW-8 (Dr. Hemant Wagh), he points out injuries

suffered by PW-1 - Sanjay, PW-2 -Waman and accused No. 3 -

Shamsundar. On the strength of deposition of said witness, he

states that as the injuries suffered by Waman were found not

serious and hence not sufficient to cause death of Waman, if

medical treatment was not provided to him within time. Thus,

offence under Section 307 in respect of said injuries were not made

out. He has also invited our attention to post mortem report to

show that injury therein is found possible by gupti (Article 1).

Inviting attention to size of injuries sustained by Waman and PW-1

- Sanjay, he contends that injuries were only skin deep and as the

injuries were suffered during grappling, the injuries were not

serious.

14. Though incident took place at about 12 O' clock in the

night, complainant lodged FIR almost after four hours i.e. after

discussion with other family members and this delay has not been

explained. Not only this, injury to Shamsundar has also not been

explained. He contends that the prosecution has thus not

approached this Court with clean hands. He draws support from

the judgment of the Hon'ble Apex Court in the case of Lakshmi

Singh vs. State of Bihar, reported at 1976 Cri. L.J. 2263, to contend

that as very genesis of crime has been suppressed, injuries

sustained by Shamsundar have not been explained, the accused

persons must be given benefit thereof.

15. Ms. Mehta, learned APP, at the outset submits that

though there appears to be a dispute in relation to possession of

agricultural land at Mouza - Hudpa between the parties, the

accused persons did not enter witness box and have remained

satisfied by avoiding cross examination. Hence, adverse inference

needs to be drawn against them.

16. PW-3 - Amit and PW-6 Mahadeo are independent

witnesses and as such, their evidence needs more credence. She

relies upon spot panchnama to point out how accused persons have

attacked Ishwar. She also submits that the Investigating Officer

removed Shamsundar, who was seen lying on the spot. She also

relies upon the requisition sent by the Police Officer to Medical

Officer in respect of Shamsundar (Exh. 97) to demonstrate that

Shamsundar sustained injuries because of beating by mob of the

village. She relies upon the memorandum of admission (Exh. 111)

given by Rahul to Police to show that Gupti was bent by pressing it

against hard ground by Rahul before hiding it. Diagram of said

weapon showing its bent shape on Query Report at Exh. 141 is also

relied upon by her. In the background of these arguments, she has

invited our attention to various paragraphs of judgment to show

how all these aspects have been looked into by the learned Trial

Court. The report of Chemical Analyzer is also pressed into service

to show that blood group of deceased Ishwar 'B' has been found on

the shirt of accused No. 1 - Rahul. Lastly, she points out that

accused No. 2 - Dilip Naik had taken a plea of alibi but failed to

substantiate it. She also points out that during identification

parade, witnesses have identified the accused persons. She,

therefore, prays for dismissal of the appeal.

17. The fact of possession of members of Dahake family or

of accused persons (accused No.2) on agricultural land at village

Hudpa is not decisive insofar as this matter is concerned. The

complainant claims that accused accosted them on Soyabean which

they have harvested and accused in defence also submit that they

inquired whether soyabean in tractor was harvested from the field

of accused No. 2 at Hudpa. In this situation, it is not necessary for

this Court to delve more into this controversy. The incident as

such is not disputed and only dispute between the parties is the

mode and manner in which it occurred. The prosecution examined

total eight witnesses. PW-1 Sanjay is complainant and brother of

the deceased Ishwar while PW-2 - Waman is father of the deceased

Ishwar. The prosecution claimed that PW-3 - Amit Badge is a

labour carried by Dahake family to harvest soyabean. Mahadeo

Tiwade has also been placed in the same category. These four

persons are examined by the prosecution as eye witnesses. PW-4 -

Ashok Nagpure and PW-5 - Balkrushna Kuthe are panchas on

memorandum statement under Section 27 of the Evidence Act.

They have not supported the prosecution. PW-8 - Dr. Wagh

examined the victim and accused and also conducted post mortem

of Ishwar. Last witness PW-7 - Prakash Hake is the Investigating

Officer. It is, therefore, obvious that the evidence of these four eye

witnesses needs to be considered.

18. The trial Court has found that Spot Panchnama (Exh.

78) has been admitted by the accused persons. The trial Court has

not made reference to the map which has been drawn on the basis

of said spot panchnama and that map is Exh. 62 on record.

19. PW-1 - Sanjay states that they harvested Soyabean on

10.12.2010. He along with the deceased Ishwar, his father -

Waman, Amit Badge, Mahadeo Shende, Ramaji Chanode, Kawdu

Chachere and Krishna Dahake went to the field at Hudpa to bring

that soyabean. Ishwar came on his Passion motorcycle. They

loaded soyabean in the tractor and proceeded towards their village

viz. Sonarwahi in Kuhi Tahsil at about 10.30 in the night. He was

driving tractor while his father and other persons were sitting with

him in the tractor. Ishwar was proceeding ahead of the tractor in

his passion motorcycle with Amit Badge and Mahadeo Shende

sitting on it. They had just crossed village Pimpalgaon and at that

time all accused persons riding on Pulsor motor bike came from

behind and then overtook bike of Ishwar. They reached at

Mandhal village. The accused after overtaking stopped at Bus

stand and in the meanwhile his brother Ishwar also reached there.

Accused No. 1 - Rahul Shende asked Ishwar to come to him. He

took out gupti and assaulted near collar bone of Ishwar and Ishwar

fell down. He, his father Waman, Ramaji Kanode, Kawdu Chachere

and Krushna Dahake reached there. The accused No. 2 - Dilip

Naik took gupti from Rahul Shende and hit his (Sanju's) finger.

His father Waman reached near him and at that time accused No. 3

- Shamsundar Naik took gupti from Dilip Naik and assaulted

Waman with it. Accused No. 3 assaulted Waman on abdomen and

hand. His father started bleeding. Blood was also oozing from the

person of his brother Ishwar and, therefore, he went in search of

jeep but he could not find any jeep. He came near his brother.

That time his brother was dead. The villagers had gathered and

then police also arrived. The health of his father deteriorated and,

therefore, in police vehicle he was taken to Kuhi hospital. He also

accompanied police in that vehicle. He was admitted there and

after half an hour was referred to Nagpur Medical college. He was

given first aid and medicine, then he went to Police Station to

lodge report. He identified the report Exh. 60 and printed FIR

(Exh. 61). He stated that they have purchased that field from Dilip

Meshram and accused persons are related to Dilip Meshram. His

cross examination shows that Police has reached the spot at about

12 O' clock at night and were at the spot up to 3 or 4 O' clock in

the morning. Thereafter he was taken to Kuhi and he stayed at

Kuhi hospital for about one hour. He reached Kuhi Police Station

at about 5 AM. He has stated that earlier he gave report to Kuhi

Police Station on phone. That time Police was informed that son of

Waman had been murdered. He stated that villagers of Mandhal

gave phone call. After police came, he gave information in detail

but police did not record his statement on the spot. He has

disclosed name of Dilip Meshram as person assaulting him. The

trial Court has mentioned all omissions in paragraph 8 of his cross

examination. The fact of overtaking, accused No. 1 - Rahul asking

Ishwar to come near him, Dilip Naik taking gupti from Rahul and

assaulting his finger or then accused No. 3 - Shamsundar taking

that gupti from Dilip, are those omissions. He could not explain

why these facts were not mentioned in his police statement. He

accepted that Shamsundar was taken to hospital along with them

and the Police reached the spot, Shamsundar was there lying

injured. He denied that accused No.1 - Rahul and accused No. 3 -

Shamsundar came towards their tractor from the front side. He

denied story of defence as mentioned supra by us. He denied that

he did not state gupti as weapon at village Mandhal. He denied

that he disclosed knife as weapon at that time. It is important to

note that in Exh. 137 i.e. requisition issued by the police to Medical

Officer in relation to this witness, police have recorded attack on

him by knife. This has to be as disclosed by PW-1 to Police at that

juncture. He denied that when he reported the matter to police on

phone, he did not communicate names of accused persons.

However, perusal of cross examination of PW-7 Prakash Hake

(Investigating Officer) reveals that at Police Station, there was no

entry of any such phone call made by Sanjay Dahake. He also

denied that when police first came on the spot, he told name of

Dilip Meshram to them. Thus, he contradicted himself with answer

given by him in paragraph 6.

20. The other witness is PW-2 - Waman, who is the father

of the deceased - Ishwar and father of PW-1 - Sanju. He states

that after loading Soyabean in the tractor, they started at about

11.00 PM in the night to return. He states that three accused came

in front from back side at Mandhal. Rahul Shende stopped the

bike of Ishwar and called Ishwar and all of a sudden he gave a

blow of gupti near his throat. Ishwar fell down. They got down

from the tractor. Shamsundar took gupti from Rahul Shende and

assaulted him on abdomen and hand with it. Sanju then went to

find out vehicle. The villagers also reached there. Thus, in

examination-in-chief, he does not speak of any assault on his other

son i.e. Sanju by accused No. 2 - Dilip Naik. His cross examination

shows that police made inquiries from him at the spot twice but he

is not aware whether his statement was recorded. 2 or 3 days after

the incident, police again inquired from him in Police Station. He

accepted that PW-1 Sanju then had a cell phone but in the next

breath he stated that he was not certain about it. He accepted that

the statement given by him at Kuhi was reduced into writing. The

statement given by him at Mandhal was also reduced in to writing.

The statement of his son and other persons was also recorded by

Police at Mandhal. It is important to note that these statements are

not on record. In paragraph 9, omissions are put to him. He could

not explain why the fact that Rahul gave call to Ishwar did not

figure in his police statement. In paragraph 10, he accepted that

when they reached on Bus stand of Mandhal, at that time Rahul

and Shamsundar came there on bike from front side. He denied

that Shamsundar inquired whether it was his crop. He denied that

Shamsundar threatened them with police report. He accepted that

Shamsundar alighted from his bike and came towards their tractor.

He denied that he alighted from the tractor and went to

Shamsundar. He could not tell whether at that time Rahul was

near his motorcycle. He denied that at that juncture his son Ishwar

and friends with them attacked Shamsundar and fell him down.

Different version then put to him and he denied it. However, then

cross examination reveals a totally different version. He does not

take name of accused No. 2 - Dilip Naik at all and point out any

attack by Dilip Naik on his son Sanju. He mentions that

Shamsundar came towards Tractor making inquiry about the

ownership of crop. He denies that he himself (Waman) had then

got down from the tractor and went near Shamsundar. He also

does not know whether Rahul was then on his motorcycle. He also

states that the accused persons came from front in cross

examination. Thus, he has contradicted his son Sanju on material

aspects of the event.

21. PW-3 - Amit Badge, is claimed to be a labour and he

has also deposed accordingly. He states that on 12 O' clock in the

afternoon when he returned to his village - Sonarwahi, Ishwar

contacted him and asked him to come to Hudpa for harvesting. He

agreed. After dinner, after 7 PM, he came back to his village and

then left for Hudpa. On way, they collected labours from the

village Bhiwapur and village Fegad. At about 9.00 PM to 9.30 PM

they reached the field at Hudpa, loaded Soyabean and at about

10.30 PM, started return journey. He, Ishwar and Mahadeo were

riding the motorcycle and remaining persons were on the tractor.

He states that on two motorcycles, three persons came near them

and intercepted their motorcycle. They got down from their

motorcycles and he, Ishwar and Mahadeo also got down from their

motorcycle. He then states that a tall fair colour person suddenly

took out Gupti from his waist and attacked on the neck of Ishwar.

Their tractor also reached there in the meanwhile and Waman

rushed towards them. One black colour dwarf man took gupti

from tall and fair man and attacked on the abdomen and hand of

Waman. Sanjay also rushed from the tractor. The third person

then assaulted on Sanjay's fingers and all persons ran away.

Sanjay then left to bring the jeep. They took Ishwar to Dr. Dolas.

Black man again came to assault. Till then villagers of Mandhal

gathered there. The villagers beat that black man. He also states

that hospital of Dr. Dolas was closed.

22. Before proceeding further with the discussion on his

cross examination, it is important to note that though he speaks of

attack on Sanjay by third person, the sequence of attack given by

Sanju (PW-1) is altered by him. As per PW-1, accused No. 1 first

attacked Ishwar, thereafter accused No. 2 attacked Sanju and lastly

accused No. 3 - Shamsundar attacked Waman.

23. This witness (PW-3) Amit then speaks about

identification parade in which he identified accused persons. His

further cross examination also shows that he owns 18 Acres of

land. He accepted that he was knowing Dahake family since his

childhood. The omissions are put to him in paragraph 10 and he

could not point out why assault made by gupti on hand of Waman

and on the finger of Sanju did not figure in his police statement.

He also could not explain why return of black man (accused No. 3

- Shamsundar) who attacked again or then villagers beating that

black man did not figure in his police statement or in his statement

before the Magistrate. He denied defence version of the event.

24. The deposition of this witness, therefore, shows that he

is the owner of 18 Acres of land and, therefore, not a labour. He

points out odd hours at which they visited the field at Hudpa to

collect soyabean. His evidence also shows that labours from other

villages i.e. Bhiwapur and Fegad were picked up for said work.

25. The next witness is PW-6 - Mahadeo Tiwade. PW-1 -

Sanjay has not taken name of any person with surname Tiwade.

He mentioned one Mahadeo Shende. PW-2 also does not take

name of this person. PW-3 again uses name Mahadeo but does not

point out surname. The question, therefore, is whether this

witness PW-6 was at all with Dahake family. He states that the

accused persons came from back side and they stopped motorcycle

of Ishwar. One fair tall person assaulted on throat of Ishwar. In

the meanwhile, their tractor reached there. Waman got down from

the tractor and black colour shirt person took gupti from tall

person and assaulted on the abdomen of Waman. Sanjay also got

down and another tall black person took gupti and assaulted on

the hand of Sanju. Then he shouted. The accused fled away on

motorcycle and Sanju went to arrange a vehicle. He then deposes

that black coloured person again came on the spot and people of

Mandhal assaulted him. He fell down. His cross examination

shows that he owns 5 Acres of agricultural land and he knew

members of Dahake family since childhood. In para 8, he accepted

that his statement was recorded by police on 13th day after the

incident and on 12th day he did not tell anything to police. He

denied defence version. He stated that immediately after incident,

PW-1, Sanjay told him name of the injured person as Shamsundar

and name of other person as Rahul. However, he in the next

breathe stated that names were told to him few days after the

incident. He could not explain why attack on Sanju or return of

black person and villagers beating him did not figure in his police

statement. Thus, assault on PW-1 - Sanju deposed to by him is an

omission in his police statement.

26. When depositions of these four so-called eye witnesses

are seen, inconsistencies therein are apparent. The fact that

accused No. 3 - Shamsundar was lying injured on the spot and his

two ribs were fractured and injury on his forehead is not in

dispute. The Investigating Officer has in his examination-in-chief

pointed out that accused No. 3 - Shamsundar was lying injured at

the spot and the deceased was lying dead in front of the hospital of

Dr. Dolas. The omissions put to various witnesses have been put to

him during cross examination. He also accepted that accused No.

2 - Dilip Naik had lodged complaint against Waman Dahake on

25.10.2006 and 26.11.2006 for stealing Soyabean crop. However,

he was not aware about complaints dated 27.06.2009 and

21.12.2007.

27. PW-8 - Hemant has described injuries on Shamsundar,

Waman and Sanju. Injuries on Waman are found to be stab

injuries muscle deep and Dr. has stated that those injuries were not

sufficient to cause death if the medical treatment is not provided in

time. He found lacerated injury on middle finger and incised

wound (muscle deep) on ring finger of Sanjay. He proved injury

certificate - Exh. 132 issued by him about injuries sustained by

Shamsundar. He found two stab injuries on forehead with grave

and sharp margins, contusion on temporal area, contusion on chest

and abrasion.

28. It is in this background that perusal of spot of

occurrence and panchnama becomes necessary. In spot panchnama

(Exh. 76) in first part, a spot opposite Girja Bhawan by the side of

road on its slope finds mention. There blood was found

accumulated. The said panchnama does not mention that Ishwar

was attacked at that place or then was found lying at that place. It

also does not mention that Shamsundar was found lying at that

spot. In later part, another spot on the road going inside Mandhal

town is mentioned. That spot is opposite dispensary of Dr. Dolas

and there body of Ishwar was seen. Passion motorcycle was also

found there. The tractor is found standing at a distance of 15 feet

from this spot facing South and cut Soyabean was being carried in

that tractor. Number of motorcycle has been mentioned as MH-

40/ SR-0335. Thus, this spot panchnama does not throw much

light.

29. If Ishwar and Shamsundar were attacked at the same

spot, their bodies could have been seen lying near that spot or in

the vicinity. Even if it is presumed that accused persons (accused

Nos. 1 & 2) ran away on motorcycle, motorcycle of the deceased

Ishwar could have been seen in or about the vicinity of spot. The

motorcycle is seen in map (Exh. 62) near Dr. Dolas dispensary and

body of Ishwar is seen lying there with blood spot. The place

where Shamsundar was found lying does not appear in this map at

all. The map does not show Bus stand and at the centre of the

map, there is Nagpur-Ambhora road. The first spot is shown below

on the map on Southern side of this road. There for 10 feet tyre

marks of tractor are also shown. However, the other spot is 165

feet away from the spot. It appears that body of Ishwar was

carried to Dr. Dolas dispensary which is at a distance of 165 feet.

Map shows that after going 100 feet in Eastern direction of this

West-East road, right turn is required to be taken on road, after

taking right turn at a distance of 65 feet, body of the deceased was

seen in front of Dolas dispensary. The body was seen on right

hand side of this North-South road. The tractor was shown on

opposite side of road i.e. on its left hand side.

30. This evidence, therefore, does not establish the

presence of accused No. 2 - Appellant No. 2 - Dilip Naik on the

spot at all. Similarly, the injuries sustained by accused No. 3 -

Shamsundar have not been properly explained. Looking to the

nature of injuries suffered by him, the prosecution ought to have

made efforts to bring on record some definite material in this

respect. Improvements made by witnesses on their police

statement by stating that accused No. 3 - Shamsundar, who had

run away earlier, returned back to spot and was attacked by

villagers is apparently by way of after thought and a false story.

But then this false explanation needs drawing of adverse inference

against the members of Dahake family.

31. We have also noted that attack with gupti on PW-1 -

Sanju has not been convincingly proved. Once we hold that

accused No. 2 - Dilip Naik was not on the spot, it is clear that

attack by him on Sanju needs to be discarded but then the fact that

PW-8 - Doctor has found injuries on the hand of PW-1 - Sanju,

cannot be ignored. Members of Dahake family had travelled a long

distance at odd hours to bring back Soyabean. They had taken help

of some other persons who cannot be strictly called as labours for

said work. Why they could not bring Soyabean back during day

time, cannot be understood. If they went with preparation to bring

back soyabean at odd hours, the attack by them on accused persons

cannot be ruled out. Accused No. 2 - Dilip Naik had lodged

reports of theft on earlier occasions against Dahake family. All

these facts raise several doubts and material on record does not

convincingly show that accused persons attacked PW-1 - Sanju.

Once the prosecution story is rendered doubtful, the other

narration also needs to be viewed with suspicion. The finding of a

bent gupti at the instance of accused No. 1 - Rahul or finding of

blood of Ishwar on his clothes in this situation, by itself, cannot be

a decisive circumstance. It may lend credence to defence version

also. If there was a quarrel or scuffle between the parties, the

clothes may get blood stained. The material on record is, therefore,

insufficient to hold that the accused persons are proved to be

guilty.

32. We, therefore, acquit Appellant No. 2 - Dilip Naik of

the offences with which he is charged. Similarly, appellant Nos. 1

& 3 are also given benefit of doubt and acquitted. Accordingly, the

judgment dated 10.07.2012 delivered by the Additional Sessions

Judge - 5, Nagpur, in Sessions Trial No. 53 of 2011 is quashed and

set aside. The appellants are acquitted of the offences punishable

under Sections 302, 307, 324 and 341 read with Section 34 of the

Indian Penal Code. They be set free, if their custody is not required

by the State Government in any other matter. Muddemal property

be dealt with as directed by the trial Court after expiry of appeal

period.

           JUDGE                                              JUDGE

                                  ******





    *GS.