Bombay High Court
The State Of Maharashtra, Through ... vs Rajesh Upasrao Pawar And Others on 14 March, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. OF 2015
The State of Maharashtra,
Through Police Station Officer,
Police Station, Benoda, Tq.
Wardu. Distt. Amravati. .......... APPELLANT
// VERSUS //
1. Rajesh Upasrao Pawar,
Aged about 41 years, Occ.
Labour, r/o. Bhichwa, Tq.
Saunsar, Distt.Chhindwara
(M.P.).
2. Prabhakar @ Pravin Shriramji
Fule, Aged about 41 years, Occ.
Agriculture, r/o. Mamdapur,
Tq. Warud, Distt. Amravati.
3. Sau. Sunita Kamalsingh Badkhane,
Aged about 32 years, Occ.Labour,
r/o. Shingori, Tq.Warud, Distt.
Amravati.
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4. Sau. Kamala Pappu Mohabe,
Aged about 48 years, Occ. Labour,
r/o. Shingori, Tq. Warud,
Distt. Amravati. .......... RESPONDENTS
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Mr.T.A.Mirza, A.P.P. for the Applicant/State.
Mr.P.R.Agrawal, Adv. for Respondent Nos. 1 to 4.
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CORAM : B.R.GAVAI &
A.S.CHANDURKAR, JJ.
ig DATE : 14.3.2016.
ORAL JUDGMENT (Per B.R.Gavai, J) :
1. The present appeal challenges the Judgment and
Order passed by the learned Additional Sessions Judge,
Amravati, dt.23.12.2014 in Sessions Trial No.37 of 2010
thereby acquitting the accused of the charges charged with.
2. It is the prosecution case that on 8th September,
2009, father of the first informant Anil Madhukarrao Basle
(PW-1) had a party of fish and liquor along with accused
nos. 1 and 2. It is the prosecution case that since Anil Basle
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(PW-1) heard the noises, he went near the hut of his father
and found that all the accused were beating his father. Said
Anil states that, after he went there, the accused ran away.
It is his version that, at that time, he was told by his father
that the accused had first administered poison to him by
mixing the same in alcohol and then assaulted him. On the
basis of F.I.R. lodged by Anil Basle (PW-1), investigation
was done. After completion of investigation, charge sheet
came to be filed against all the accused. Charges were
framed. The accused pleaded not guilty and claimed to be
tried. At the conclusion of the trial, the learned trial Judge
passed an order thereby acquitting all the accused of the
offence punishable under Section 302 r/w. 34 of the Indian
Penal Code.
3. Being aggrieved by the order of acquittal, the State
has approached this Court.
4. Mr.T.A.Mirza, learned A.P.P. submits that the learned
trial Judge has miserably misread the evidence of Anil
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Madhukarrao Basle (PW-1). He submits that if the evidence
of Anil Basle (PW-1) would have been read in correct
perspective with the C.A. report by the learned trial Judge,
he would have come to the conclusion that death of the
deceased was by administering poison and that the present
appellants were responsible for the same.
5. Mr.P.R.Agrawal, learned Counsel appearing on behalf
of the respondents/accused submits that the learned trial
Judge has given cogent and sound reasons for acquitting
the accused, which warrants no interference.
6. By now the law in respect of interference in an appeal
against acquittal is well settled. Unless it is found that the
view taken by the learned Trial Judge is perverse or
impossible, it is not permissible for this Court to interfere
with the same. It is equally settled that merely because the
appellate Court finds the other view to be more
appropriate, it is not permissible for the appellate Court to
reverse the view of trial Court.
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7. With the assistance of the learned A.P.P. and the
learned Counsel for the respondent/accused, we have
examined the entire evidence. The star witness on behalf of
the prosecution is Anil Basle (PW-1). He states that all the
accused have assaulted his father with a stick. He further
states that when he went to the spot, his father told him
that first he was administered alcohol mixed with poison
and thereafter, he was assaulted.
8. Insofar as the oral dying declaration given by the
deceased is concerned, it will be relevant to refer the
evidence of Rameshwar Devidas Domne (PW3), who is
neighbourer of the deceased. It would further be seen that
evidence of Anil Basle (PW-1) is shattered in the testimony
of this witness itself. He states that he had not seen anyone
running. He further states that the deceased was not in a
position to speak. In that view of the matter, the oral dying
declaration cannot be believed.
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9. Insofar as the version given by Anil Basle (PW-1)
regarding assault by the stick is concerned, evidence of
Dr.Ravindra Motiram Hande (PW-10) would show that he
has stated in his deposition that there was no injury shown
in Column No.17 in the Post Mortem report. In cross-
examination, he further admitted that had there been
injuries on the person of the deceased then they would
have been mentioned in the post mortem report. Not only
this, but Pramod Uddavrao Potdar (PW-11), Medical
Superintendent, Rural Hospital at Warud also admits that
there were no injuries mentioned in medico-legal papers. In
view of the evidence of this witness, the learned trial Judge
has found that the version given by Anil Basle (PW-1)
regarding assault by stick was not acceptable. He has,
therefore, disbelieved the version of Anil Basle.
10. If the version of Anil Basle (PW-1) being an eye witness
is disbelieved then the case becomes purely a case of
circumstantial evidence. In a case based on circumstantial
evidence, it is necessary for the prosecution to prove each and
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every circumstance beyond reasonable doubt and the
prosecution has further to establish that the circumstances so
proved establish a chain of evidence which leads to no other
conclusion than guilt of the accused. In a case of
circumstantial evidence wherein it is alleged that death has
occurred by administering poison, additional circumstance is
required to be proved by prosecution i.e. the accused are the
persons who have purchased the poison. The evidence of I.O.
Ravinda Hande (PW-10) would show that no investigation
was done in that regard. He has clearly admitted that he had
not made any inquiry about from where the accused brought
poison.
11. Moreover, the examination-in-chief of Anil Basle (PW-1)
so also the cross-examination of said witness would reveal that
there are various other criminal cases pending against the
deceased as well as some of the accused filed by them against
each other. As such, possibility of false implication of accused
persons on account of previous rivalry also cannot be ruled
out.
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12. In view of the above, we find that the prosecution has
utterly failed to prove any of the incriminating circumstance
against the accused persons. The appeal is found without
merits and as such, the same is dismissed. Resultantly,
Criminal Application No.219 of 2015 for grant of leave to file
Criminal Appeal is disposed of.
ig JUDGE JUDGE
jaiswal
