Yadav Gopal Bhure vs State Of Maha & Ors
2016 Latest Caselaw 2264 Bom

                                                                           407.03crrevn
                                             -1-




                                                                             
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                     
                 CRIMINAL REVISION APPLICATION NO. 407 OF 2003

     Yadav s/o Gopal Bhure,
     Age: 25 years, Occ: Agri.,
     R/o. Kurula, Tq. Kandhar,




                                                    
     Dist. Nanded.                                            ...Applicant

                      versus

     1.       The State of Maharashtra




                                          
              Through Police Station Kandhar,
              Tq. Kandhar, Dist. Nanded.
                             
     2.       Pralhad s/o Govind Kirpane,
              Age: 40 years, Occ: Agri.,
              R/o. Kurula, Tq. Kandhar,
                            
              Dist. Nanded.

     3.       Mangal Govind Kirpane,
              Age: 37 years, Occ: Agri.,
              R/o. Kurula, Tq. Kandhar,
      


              Dist. Nanded.
   



     4.       Gopal s/o Govind Kirpane,
              Age: 34 years, Occ: Service,
              R/o. Kurula, Tq. Kandhar,
              Dist. Nanded.                                   ...Respondents





                                           .....
              Mr. Gopal D. Kale, Advocate for applicant
              Ms. R.P. Gour, A.P.P. for respondent/State
              Mr. S.J. Salunke, Advocate for respondent Nos. 2 to 4
                                          .....





                                               CORAM : N.W. SAMBRE, J.

                                               DATE :     4th MAY, 2016
     ORAL JUDGMENT :

This criminal revision application is by the original

complainant. The applicant lodged complaint against the accused

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persons alleging that they have committed murder of his father

namely Gopal Bhure. Pursuant to the complaint, the respondents-

accused were charge sheeted for an offence punishable under

Section 302 read with Section 34 of the Indian Penal Code.

2. Learned Sessions Judge acquitted all the accused

persons vide its judgment and order dated 03/10/2003. As such,

present criminal revision application against the acquittal.

3. While questioning the legality and validity of the order of

the acquittal, learned Counsel for the applicant would submit that the

acquittal is based upon the incorrect appreciation of evidence. He

would then urge that the acquittal is required to be reversed as there

are two eye witnesses to the incident i.e. PW-4 Prabhakar Motiram

Gaud, who is examined at Exhibit-21, brother in law of deceased

Gopal and PW-9 Govind Yadav Bhure, who is examined at Exhibit-

33, elder brother of deceased Gopal. According to him, their

testimony corroborates the active participation of the respondents-

accused in the crime in question and as such, he would submit that

the present case is fit for reversing acquittal.

4. Learned A.P.P. supported the case of the applicant,

whereas the respondent-accused opposed the claim and sought

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dismissal of the revision on the ground that learned Sessions Judge

while recording acquittal, has rightly appreciated the entire gamut of

evidence brought before it.

5. With the assistance of learned Counsel for respective

Counsel, I have perused the original record and proceedings in the

matter.

6.

It is required to be noted herein that complainant Yadav

Bhure, son of deceased Gopal, was examined as PW-8 at Exhibit-31.

He supported the case in the complaint. He then claimed that on

11/02/2001 he came to know about the murder of his father from his

brother, who was sent by his mother to fetch him. According to him,

he alongwith five to six persons went to the field, saw the dead body

with injuries. According to him, he lodged the complaint with the

police which is at Exhibit-32. In his cross examination, he stated that

the complaint was lodged at 2-15 p.m. on the date of incident,

however, his signature was obtained on the same on the next day.

According to him, the field of accused Pralhad is adjacent to his field.

He then stated about certain omissions as regards the contents of

the first information report. He then claimed that though there is

police chowky in the village, no complaint of the earlier two incidents

of threat was lodged. He suspected the involvement of present

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accused persons in the murder of his father and as such, he

disclosed the names of the accused. He then stated that he do not

recollect as to whether paternal uncle Govind has attended funeral

and whether Govind attended the police station on 24/02/2001. He

also stated that Prabhakar from village Jamb attended the police

station on 24/02/2001 with one Govind. He then stated about

omission about non mentioning of name of Deepak, brother of

accused in the first information report by police.

7. The prosecution witness Govindrao Bhure, elder brother

of deceased Gopal, was examined as PW-9 at Exhibit-33. He stated

that he alongwith brother in law of the deceased went to the field and

saw that accused persons were beating the deceased Gopal in the

field with stones and then thrown him in the bushes.

8. In his cross examination, it has come on record that he

was working in the school as Peon and was not aware about funeral

of deceased Gopal, as he was suffering from asthma. According to

him, house of deceased Gopal is at the distance of about 5 to 6

houses from his house and stated that he accompanied the

complainant on 24/02/2001 to the police station. The contradiction

could be noticed from the above statement, as the complainant in

clear terms has stated that on 24/02/2001 he has not accompanied

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this witness to the police station. He then stated that he has not told

to any family members about the incident. It is claimed that

Prabhakar met him in the field on 24/02/2001 and both of them went

to the field of deceased. Prima facie, there are material

contradictions in the evidence of PW-9 Govindrao and complainant

PW-8 Yadav.

9. So far as the evidence of PW-1 Balaji is concerned, he is

witness to the inquest panchnama. He has stated that witness

Prabhakar, PW-4, brother in law of deceased was present at the time

of funeral. Material contradiction could be noticed from the same.

PW-2 Shivaji Dhulshette is a panch witness to the spot panchnama.

He has proved the same in his testimony. PW-3 Sharfu Sk. Lal is

also witness to the spot incident, supported the spot panchnama.

10. PW-4 Prabhakar Gaud, brother in law of deceased

Gopal, is examined at Exhibit-21. He claimed that on the date of

incident i.e. 11/02/2001 he had been to the house of his sister in the

morning and having taken tea there, he went to the house of Govind,

brother of deceased Gopal and both of them went to the field. He

stated that he saw three persons were beating Gopal and on seeing

them, it is claimed that, Govind shouted. In his cross examination, he

stated that after witnessing the incident of beating to his brother in

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law, he came back to village from the spot and did not meet anybody

and returned to the village and also not narrated the incident to

anybody in the village. The above statement of the said witness

does not repose any confidence in his testimony so as to infer that he

is an eye witness to the incident. According to him, stone was thrown

on the head of the deceased, however, there was no bleeding injury.

It is then claimed that he witnessed the accused holding stone in

their hand. According to him, he apprehended something and as

such, he did not narrate the incident to anybody.

11. PW-5 Sk. Pasha, examined at Exhibit-22, claimed to

have present on the spot. He noted that he was wandering for some

herbal medicine so as to apply on the injury of buffalo and he saw

one person sleeping in the field of deceased. According to him, he

has not witnessed the incident. In his cross examination, he has

narrated that there was discussion amongst gathering that bullocks

which were owned by the deceased were very violent and might

have caused the injuries, which was the cause of death of deceased

Gopal.

12. PW-6 Ramesh s/o Gopalrao Bhure, examined at Exhibit-

23, narrates about alleged threats given by the accused persons to

the deceased Gopal prior to the incident in question. In his cross

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examination, he is not an eye witness but narrates the incident based

on hearsay story.

13. PW-7 Dr. Dinesh Pawar, examined at Exhibit-26, has

proved the injuries. In his cross examination, he has narrated that he

has conducted post mortem. He further stated that rigor mortis

develops within 2 to 3 hours after death. He noticed bleeding from

right ear, which was sign of intracerebral haemorrhage and was due

to injury on the right side. He narrates, except contusion, there were

abrasions in the form of simple injuries and same were not the

cause for death.

14. The evidence as is discussed herein above if analyzed

with that of documentary evidence as is brought on record, it is to be

noted that Exhibit-15 inquest panchnama, Exhibit-17 & 19 spot

panchnamas, were duly proved. The first information report Exhibit-

32 was also proved by the complainant in his testimony. If the

evidence of an eye witness to the incident PW-4 Prabhakar as is

narrated herein above is analyzed, does not repose any confidence

that he is actual eye witness to the incident.

15. Apart from above, other eye witness PW-9 Govindrao

Bhure also not appears to be an eye witness as to claimed by the

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prosecution, particularly when his evidence if analyzed with that of

evidence of PW-4 and other witnesses, there are material

contradictions and omissions. The conduct of these witnesses of not

immediately lodging the complaint in police chowky and narrating the

incident to family members or other persons from the village, rather

keeping mum takes this Court to infer that they were not an eye

witnesses to the incident and as such, their testimony is required to

be disbelieved.

16. In the background of analysis of evidence on record, in

my opinion, no case for interference in the judgment of acquittal is

made out. As such, criminal revision application against acquittal fails

and stands dismissed.

[ N.W. SAMBRE, J. ]

Tupe/