Bombay High Court
The State Of Mah.Thr. Pso Buldana vs Ukharda Natthu Raut And Another on 13 April, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.303 OF 2004
The State of Maharashtra,
through P.S.O., Khamgaon (R)
Dist. Buldana. ....... APPELLANT
...V E R S U S...
1] Ukharda Natthu Raut
Aged about 65 years.
2] Sopan Ukharda Raut
Aged 35 years.
Both r/o Parkhed
P.S., Khamgaon,
Dist. Buldana. ....... RESPONDENTS
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Shri S.D. Sirpurkar, APP for Appellant.
Shri S.V. Sirpurkar, Advocate for Respondent Nos.1 & 2.
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CORAM: B.P. DHARMADHIKARI AND
V.M. DESHPANDE, JJ.
th APRIL, 2017.
DATE: 13
ORAL JUDGMENT (PER B.P. Dharmadhikari, J.)
1] The State of Maharashtra has filed an appeal before
us challenging judgment and order dated 05.02.2004 delivered by
Second Additional Sessions Judge, Khamgaon in Sessions Case
No.46 of 1998. By that judgment the Sessions Court has acquitted
respondent No.1-Ukharda and his son respondent No.2-Sopan of
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offences punishable under Section 302 read with Section 34 of the
Indian Penal Code. We have heard Shri S.D. Sirpurkar, Additional
Public Prosecutor for appellant/State and Shri S.V. Sirpurkar,
Advocate for respondents.
2] Learned A.P.P. submits that there are about five eye
witnesses who have consistently spoken about the assault with an
axe on deceased Mahadeo. That evidence has been overlooked on
trivial grounds. Our attention is invited to report of Chemical
Analyzer to show that human blood of group-B is found on axe
used as weapon. It is further stated that Mahadeo happened to be
son of Ukharda from first wife and as Mahadeo was demanding
his due share in agricultural land, because of this demand
Mahadeo was eliminated.
3] Advocate Sirpurkar in reply submits that incident is
alleged to be dated 05.02.1998 and as per custody paper, accused
persons have been arrested on 09.02.1998, but no arrest
panchnama has been drawn. The panchnama prepared at the time
of arrest could have shown existence of blood stained clothes on
person of respondent, but this panchnama is missing in the matter.
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4] Incident was reported to Police by P.W.1 on
06.02.1998 while on the date of incident itself Police Station
Officer Dongardive had visited spot and was aware of the crime.
P.W.1 deposed that he went to Police Station Khamgaon to lodge
report, but then report lodged is not on 05.02.1998, but on
06.02.1998. The Trial Court has looked into this controversy and
disbelieved that report or F.I.R.
5] In said report Exh.32, P.W.1 has named seven persons
as eye witnesses. However, only one out of them has been
examined as P.W.8, while statements of others have not been
recorded at all. Person examined as eye witnesses in Court are
introduced to suit its object by prosecution and there is
unnecessary and undue delay in recording their police statements.
6] Though the witnesses named Sopan only as an
assailant, cognizance has been taken also against respondent
No.1-Ukharda. Our attention is drawn to requisition sent to
Chemical Analyzer to urge that clothes of Sopan though seized
have not been sent to Chemical Analyzer and blood group of
deceased has not been brought on record.
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7] He points out that Trial Court has found no material
against respondent No.1-Ukharda and given benefit of doubt to
respondent No.2-Sopan. He has placed reliance on the
observations in the impugned judgment.
8] We find that in the present matter Trial Court has
looked into relevant material and thereafter proceeded to give
clean acquittal to respondent No.1-Ukharda and has given benefit
of doubt to respondent No.2-Sopan. Report is lodged by P.W.1 on
06.02.1998, which has been noted by Police Station Officer D.D.
Dongardive and that report is at Exh.32. Printed F.I.R. prepared
on its basis is appearing thereafter. In F.I.R., time of occurrence is
mentioned as between 19:00 hrs. to 19:30 hrs. Intimation is
received in Police Station on 06.02.1998 at 00:30 hrs. P.W.1 who
has lodged that report denied the fact that he did not lodge report
on 06.02.1998.
9] Deposition of eye witness P.W.3-Anil shows that on
05.02.1998, he was at his flour mill and at 07:00 p.m. when he
was sitting on the ota with Manohar and Narayan, they heard a
loud shout. Hence, they ran in that direction and saw that accused
Sopan inflicted axe blow on Mahadeo. He does not state that
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Ukharda was present there and does not take his name at all.
He further states that P.S.I. Dongardive, reached spot between
07:30 to 07:45 p.m. i.e. on 05.02.1998 itself. P.W.5-Devendra
states that deceased Mahadeo was sitting in his house at
06:00 p.m. Then along with Mahadeo, he went for purchasing
bidi. Mahadeo purchased bidi from shop of Devidas Thakare.
Thereafter, when they were standing on road, Sopan arrived and
inflicted axe blow on Mahadeo. He points out three blows and
again does not utter name of Ukharda at all. His deposition has
been recorded on 05.01.2004 and at that time he was 18 years of
age, thus at the time of incident, he was about 12 years old.
His cross-examination shows that there was scuffle between
Mahadeo and Sopan, but he could not hear conversation going on
between them and was not aware about it because of distance.
He, however, then volunteered that Sopan came there suddenly
and assaulted Mahadeo. It means that there was some quarrel and
a scuffle between deceased and assailant. Thus, this witness
admits of scuffle and he was standing with Mahadeo hence, it is
difficult to accept that he did not hear conversation between
Sopan and Mahadeo. This witness therefore, is not making clean
breast of the matter.
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10] P.W.6-Narayan points out demand by Mahadeo of his
share on earlier occasion and then speaks of actual incident.
He was sitting with P.W.3-Anil and went with Anil after hearing
shout. His statement has been recorded by Police on next day.
He again does not name Ukharda at all. Deposition of
P.W.7-Manohar, who was sitting with them is on same line.
However, in cross-examination he states that when he reached the
spot, he did not see any injury on the body of Mahadeo.
However, thereafter, he added that first assault was already made
and two assaults were made in his presence. P.W.8-Laxman
Sananse is the person named in his report by P.W.1, he again
narrates same story. He accepts that Police has recorded his
statement on 12.04.1998. He points that he was out of village
from 06.02.1998 to 10.02.1998. Thus delay after 10.02.1998 till
12.04.1998 has not been explained.
11] Thus, none of these witnesses name respondent
No.1-Ukharda, all of them point out only Sopan as person
inflicting the injuries on Mahadeo.
12] P.W.6-Narayan Tukaram Raut is the grand-father of
witness Devendra (P.W.5).
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13] Not examining persons named in the report or then
recording their statements under Section 161 Cr.P.C. belatedly
without any explanation show a design and contention of
Advocate Sirpurkar that witnesses ready and willing to depose
against the accused persons have been searched out, therefore,
cannot be easily brushed aside.
14] Remand papers show that accused were arrested
on 06.02.1998. However, there is no arrest panchnama showing
that any accused was putting on blood stained clothes at the time
of his arrest. Requisition sent to Chemical Analyzer (Exh.28)
shows that an iron axe allegedly seized from Sopan along with
other properties taken into custody and belonging to deceased
Mahadeo were sent to Chemical Analyzer. There is no mention of
clothes of accused persons in it.
15] In this situation, when the statements of prosecution
witnesses are not recorded promptly, F.I.R. also was not registered
promptly and unnecessarily respondent No.1-Ukharda was shown
as accused No.1 view reached and discussion by Trial Court does
not appear to be either erroneous or perverse.
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16] P.W.2-Punjaji has been examined by prosecution to
prove discovery of axe under Section 27 of the Evidence Act from
accused No.2-Sopan. He deposed that Police obtained his
signature on paper and thereafter all of them along with Sopan
went to house of Sopan where from below the heap of cotton,
Sopan took out an axe with blood stains. It was seized in his
presence. In cross-examination this witness has admitted that
Sopan was residing in joint family. Memorandum of panchnama
reveals that all entered the house and then accused took out iron
axe concealed in heap of cotton. Panchnama gives dimensions of
axe and the house property of Sopan, but does not mention the
sealing of property i.e. axe after its seizure. P.W.2-Punjaji also
does not at all bring on record any such sealing.
17] In this situation, we find that benefit of doubt given
to Sopan also cannot be held to be perverse.
18] We, therefore, proceed to pass following order:
[i] Judgment and order dated 05.02.1994 delivered by
Second Additional Sessions Judge, Khamgaon in
Sessions Case No.46 of 1998, is maintained.
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[ii] Criminal Appeal is dismissed.
[iii] Muddemal property be dealt with as directed by the
Trial Court after appeal is over.
JUDGE JUDGE
NSN
