Bombay High Court
Vilas Namdeorao Ajmire & 4 Others vs State Of Maharashtra,Thr.Its ... on 10 April, 2017
Bench: I.K. Jain
apeal.252.02.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.252 OF 2002
01] Vilas Namdeorao Ajmire,
Aged about 27 years.
Appeal is abated against
appellant no.2 vide order 02] Namdeorao Laxman Ajmire (Dead).
dated 10/04/2017.
03] Diwakar Shankar Ajmire,
Aged about 28 years.
04] Hirachandra Shankar Ajmire,
Aged about 27 years.
05] Shankar Laxman Ajmire,
Aged about 49 years.
All residents of Pimpalkhuta,
P.S. Mahuli Jahangir, District Amravati.
(Original Accused) .... Appellants
-- Versus --
The State of Maharashtra,
Through its P.S.O. Mahuli,
District Amravati.
(Original Complainant) .... Respondent
-------------------------------
Shri Anil S. Mardikar, Senior Advocate for the Appellants.
Shri R.S. Nayak, Additional Public Prosecutor for the Respondent/State.
-------------------------------
CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 10, 2017.
ORAL JUDGMENT :-
This appeal takes an exception to the judgment and
order dated 18/04/2002 passed by the learned Additional
Sessions Judge, Amravati in Sessions Trial No.24/1993 convicting
and sentencing the appellants as under :
Accused Sections Sentence Fine
Accused Nos. 147 IPC R.I. for 6 months
1, 3, 4 & 5
Accused No.2 147 IPC S.I. for 6 months
Accused 148 IPC No separate
Nos.2 & 5 sentence.
Accused 307 & 149 IPC R.I. for 3 years + Fine of Rs.1,000/- each,
Nos.1, 3, 4 & in default, R.I. for 3
5 months
Accused No.2 307 & 149 IPC S.I. for 3 years + Fine of Rs.1,000/-, in
default, S.I. for 3
months.
The substantive sentences of imprisonment were to
run concurrently.
02] Prosecution case, which can be revealed from the
charge-sheet and connecting papers thereto, may be stated in
brief as under :
i. Deceased Kisan Vishwanath Doifode was resident of
Pimpalkhuta, District Amravati. Injured Shridhar
Vishwanath Doifode is brother of deceased Kisan and
complainant. Injured and his brother had their houses
within the distance of 1½ k.m. Accused were
residents of village Pimpalkhuta. They had agriculture
lands in the same village. The houses of accused
persons were near the house of injured Shridhar.
ii. On 29/08/1991 at around 06:00 p.m., Shridhar had
been to his agriculture land. He saw cattle of accused
persons grazing in his field. He removed those cattle
from the field and started taking them to cattle-pond.
On the way, accused encircled Shridhar. They
assaulted him with axe and sticks on his head and
other parts of the body. He received grievous injuries,
fell down and became unconscious.
iii. One Shamrao Khope was proceeding from the road.
He saw Shridhar lying in injured condition. He tried to
take Shridhar to his house. Shamrao found that
Shridhar was not in a position to talk and walk.
Therefore, he lifted Shridhar and brought him near the
field of Advocate Chimne. Shamrao then informed
Kisan that Shridhar was lying in injured condition.
iv. On receiving information, Kisan and others reached
the place, where Shridhar was lying. He was brought
to the house. Kisan inquired from him who assaulted.
Injured pointed out fingers towards both sides of his
house. Kisan then told the names of those persons
and injured Shridhar responded positively by nodding
his head. He was shifted to General Hospital,
Amravati.
v. Kisan went to Mahuli Police Station and lodged report.
Crime No.169/1991 came to be registered against the
accused. P.S.I. Ashok Dhotre [PW-14] took over
investigation. He visited the spot and recorded spot
panchnama. From the spot, earth mixed with blood
and simple earth were collected. Statement of
Shamrao Khope was recorded. Accused were arrested.
Their clothes were seized. Further investigation was
carried out by ASI Ingle.
vi. During investigation, two axes and a stick were
recovered at the instance of accused under Section
27 of the Indian Evidence Act. Injured was examined
by Medical Officer PW-6 Dr. Baburao Deshmukh.
Medical certificate was collected. Seized articles were
sent to Chemical Analyzer. Statement of other
witnesses were recorded. On completing
investigation, charge-sheet was filed before the
Judicial Magistrate First Class, Amravati, who in turn
committed the case for trial to the Court of Sessions.
03] On committal, charge came to be framed against the
accused at Exh.18. They pleaded not guilty and claimed to be
tried. Their defence was of total denial and false implication in
view of previous enmity.
04] To substantiate the guilt of accused, prosecution
examined in all 14 witnesses. Considering the evidence of
prosecution witnesses and particularly injured and Medical
Officer, Trial Court came to the conclusion that guilt of accused
has been proved beyond reasonable doubt and in consequence
thereof, convicted them, as stated in paragraph 1.
05] Heard Shri Anil Mardikar, learned Senior Counsel for
appellants and Shri R.S. Nayak, learned Additional Public
Prosecutor for the State. With the assistance of the learned
Counsel for the parties, this Court has gone through the
evidence adduced by prosecution. On meticulous evaluation of
the evidence on record, this Court, for the below mentioned
reasons, is of the view that prosecution could not prove the guilt
of accused beyond reasonable doubt.
06] PW-9 Shridhar is an injured and star witness. He
stated that on the day of incident at around 05:30 p.m., he had
been to his agriculture field. He reached the field at about 07:00
p.m. That time, he saw that cattle of accused Namdeo (since
deceased) were in his field. He drove them out of the field and
proceeded with those cattle to cattle-pond. He stated that on
the way, accused surrounded him. All the five accused assaulted
him. One of them had delivered an axe blow on his head.
Thereafter, he became unconscious. He stated that he received
injuries on his head, chin, lip and face and his teeth were
dislocated. He was required to undergo surgery of mouth. His
brother Kisan had lodged report.
07] From the cross-examination of injured, it is apparent
that he was not in a position to talk and he narrated the incident
by sign to police. He stated that when he was taken to his
house, police again inquired from him, but he was not in a
position to talk properly. He admits that after receiving blow of
an axe, he fell down and became unconscious. According to him,
after regaining consciousness after 15 days, he could recollect
the incident. He states that first one accused arrived there and
then all the other accused came. He did not name one accused
initially. Later on, he disclosed the name of that accused as
Namdeo. It is clear from the evidence of injured that he did not
attribute specific and individual role to each of the accused.
08] It is interesting to note that incident occurred on
29/08/1991. PW-9 Shridhar narrated the incident by gesture on
26/09/1991. His police statement came to be recorded on
31/03/1992 i.e. after the period of seven months, though he
stated in cross-examination that after 15 days, he regained
consciousness and could recollect the incident. So far as
disclosure by gesture is concerned, no convincing evidence of an
expert has been adduced. Even after an inordinate and
unexplained delay, injured did not attribute individual role to
each of the accused. Previous enmity is admitted between the
parties. In view of previous enmity, corroboration to the
testimony of injured Shridhar was essential.
09] At the first place, evidence of injured Shridhar is not
sufficient to prove the guilt of accused beyond reasonable doubt
and even if it is assumed that testimony of Shridhar has a grain
of truth, then also, in view of inordinate unexplained delay and
for want of corroboration, there are reasons to doubt his
testimony.
10] It is further significant to note that almost all the
witnesses on spot-panchnamas and seizure-panchnamas as well
as memorandum of accused have not supported the case of
prosecution. PW-1 Narayan, PW-2 Parashram, PW-4 Suryabhan,
PW-10 Jamnaprasad and PW-11 Ramrao are the witnesses,
whose evidence is not of any assistance to the prosecution.
Amongst the other witnesses, PW-3 Shamrao Khope and Medical
Officer PW-6 Baburao Deshmukh are the important witnesses.
Shamrao Khope is a person to whom incident of assault on
Shridhar was communicated and who in turn informed about the
same in the village. PW-3 Shamrao has also turned hostile and
he did not support the prosecution. So far as the evidence of
Medical Officer is concerned, even if it is accepted that Shridhar
received injuries, it would not be enough to prove authorship of
the accused so far as those injuries are concerned. Prosecution
has utterly failed to show that solitary evidence of injured
Shridhar can be a base for conviction of the accused. Even in
the cross-examination, Shridhar admitted that in his statement
before police, he did not state that accused persons encircled
and assaulted him. As indicated above, police statement was
recorded after more than seven months of the incident and this
alone is enough to doubt the testimony of the victim.
11] In the light of the above, this Court finds that on
insufficient and untrustworthy evidence, accused came to be
convicted. Interference is thus warranted in this appeal. Hence,
the following order :
ORDER
i. Criminal Appeal No.252/2002 is allowed.
ii. Impugned judgment and order dated 18/04/2002
passed by the learned Additional Sessions Judge,
Amravati in Sessions Judge Trial No.24/1993 is
quashed and set aside.
iii. Accused are acquitted of the offences charged with.
iv. Bail bonds of accused stand cancelled.
v. Fine, if deposited, shall be refunded to the accused.
vi. No costs.
(Kum. Indira Jain, J.)
*sdw
