State Of Maharashtra vs Gopal S/O Baba Rane And 2 Others
2017 Latest Caselaw 1802 Bom

 CRI. APPEAL NO.274.2002.odt                  1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.274 OF 2002


 State of Maharashtra,
 through Police Station Officer,
 Mahuli, District-Amravati.                        ..               APPELLANT


                               .. VERSUS ..


 1]     Gopal s/o Baba Rane,
        Aged about 26 years,

 2]     Sanjay s/o Babasaheb Choudhary,
        Aged about 23 years,

 3]     Baba s/o Keshaorao Rane,
        Aged about 56 years,

        All r/o. Deori, P.S. Mahuli,
        District-Amravati.                         ..          RESPONDENTS


                     ..........
 Shri I.J. Damle, APP for Appellant-State,
 None for the respondents.
                     ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 18, 2017.

ORAL JUDGMENT

Being aggrieved by the judgment and order dated

8.2.2002 passed by the learned Additional Sessions Judge,

Amravati in Sessions Case No.39/1997 acquitting the

accused of the offences punishable under sections 452, 326,

324 and 395 of the Indian Penal Code.

2] Prosecution case, in brief, is as under :

                (a)            Complainant            Baburao           Raut,        injured

                Raosaheb           Raut     and        Bhausaheb             Raut       were

                residents of village Deori.                     Accused were also

                residing in the same village.                      It is the case of

prosecution that on 21.8.1996 at about 7.00 pm,

all the accused persons unlawfully entered the

house of complainant Baburao and assaulted him

with sticks and axe. Complainant was proceeding

to Police Station for lodging report. When he

reached Deori Fata, he was obstructed and

assaulted by the accused. Raosaheb and

Bhausaheb also reached Deori Fata on a Scooter.

Accused obstructed their vehicle and started

assaulting Raosaheb and Bhaurao. Due to assault,

Baburao, Raosaheb and Bhausaheb sustained

injuries.

(b) It is the contention of the prosecution

that accused robbed cash of Rs.3,000/- from the

bag which was being carried out by Raosaheb.

Report of the incident was lodged by Bhaurao to

Mahuli Police Station. Crime No.112/1996 came to

be registered against the accused. PW-8 ASI

Bhaskar Chaudhari took over investigation.

Injured were referred to Irwin Hospital. PW-10 Dr.

Manohar Mohod was Medical Officer on duty. He

examined Raosaheb, Baburao and Bhausaheb. On

examination, multiple injuries were found on the

person of injured. Medical certificates were

accordingly issued by the doctor.

(c) ASI Chaudhari visited the place of

occurrence and recorded spot panchanama. Sticks

were seized from the accused. Some of the

witnesses were examined by ASI Chaudhary.

Further investigation was handed over to PW-9

Kishor Raut.

(d) Investigating Officer collected medical

certificates, arrested the accused and handed over

further investigation to PSI Khare. Statements of

witnesses were recorded. On completion of

investigation, chargesheet was submitted to the

court of Judicial Magistrate, First Class, Amravati,

who in turn, committed the case for trial to the

Court of Sessions.

3] Trial court framed charge vide Exh.5. Accused

pleaded not guilty and claimed to be tried. Their defence

was of total denial and false implication. Accused raised the

specific defence that Baburao was Chairman of Cooperative

Society and accused Gopal succeeded to the post of

Chairman at Deori Cooperative Society by defeating

Baburao. There was political rivalry between complainant

and his relatives on one hand and the accused on the other.

In view of political rivalry, with a view to harass the accused,

complainant and his brothers implicated the accused in a

false case.

4] To substantiate the guilt of accused, prosecution

examined in all 11 witnesses. Considering the evidence of

injured and eye witnesses and testimony of Medical Officer,

trial court found that their testimonies suffer from

contradictions and omissions. Their evidence is

inconsistent. They do not corroborate each other. Witnesses

are not coming with true facts and story built by the

witnesses appears to be a cock and bull story. In

consequence, trial court held that charge is not proved and

acquitted the accused. Hence this appeal is preferred by

the appellant-State.

5] At the outset, it is to be mentioned here that

respondent no.2-original accused no.2 died during pendency

of appeal and vide order dated 19.4.2003, appeal against

respondent no.2 stood abated. Present appeal is, therefore,

restricted to appellant nos.1 and 3, who are original accused

nos.1 and 11.

6] Heard Shri I.J. Damle, learned Additional Public

Prosecutor for the appellant-State. With the assistance of

the learned Additional Public Prosecutor, this court has gone

through the evidence of injured, eyewitnesses, Medical

Officer and investigating officers.

7] On meticulous evaluation of the evidence of

prosecution witnesses, submissions made on behalf of the

appellant-State and reasonings recorded by the trial court,

this court, for the below mentioned reasons, is of the view

that the view taken by the trial court is a possible view and

so no interference is warranted in the present appeal.

8] PW-1 Baburao Raut is complainant. He stated that

accused entered his house and assaulted him with sticks

and axe. His wife Chhabutai (PW-7) has seen the incident

occurred in the house of Baburao. According to Chhabutai,

her husband was assaulted by accused Sanjay with an axe

on his shoulder and accused Gopal assaulted on his legs and

back by stick. From the evidence of Chhabutai, it can be

seen that at the time of occurrence of incident in the house,

neighbourers did not assemble and other family members

were also not present. It appears from the evidence of

Baburao and Chhabutai that accused assaulted Baburao

with axe and sticks and caused grievous bleeding injuries.

He was severely attacked with dangerous weapons. Spot

panchanama was drawn by PW-8 ASI Chaudhari. The said

panchanama (Exh.35) clearly indicates that no blood was

found on the spot. If Baburao has received multiple bleeding

injuries caused with dangerous weapons and as stated by

Chhabutai, shirt of Baburao was stained with blood, then in

normal course blood stains ought to have appeared at the

place of occurrence. Absence of blood on the spot creates

doubt regarding the genesis of crime given by Baburao and

Chhabutai. This has significance in the light of the fact that

political rivalry between complainant and his relatives on

one hand and the accused on the other is not in serious

dispute.

9] So far as the second phase of the incident is

concerned, PW-2 Raosaheb and PW-6 Indirabai are the star

witnesses. According to Raosaheb, he and Bhausaheb

reached Devri Fata at 6.30 pm and that time they were

obstructed and assaulted by the accused. Baburao stated

that after assault on him in his house, he proceeded to

Police Station and while he was proceeding to Police Station,

accused obstructed and assaulted him. Both the witnesses

have stated that accused were armed with axe, sticks and

swords, but assault on Raosaheb was only by means of

sticks. It is interesting to note that as per the version of

Raosaheb 15 persons assaulted him for 20 minutes but

medical certificate (Exh.62) shows that he received two

contusions and one lacerated wound to non vital parts.

Medical evidence belies the testimony of Raosaheb that he

was assaulted by 15 persons for 20 minutes. Similar is the

case with Baburao. Medical evidence does not support the

testimony of Baburao that he was assaulted by 15 persons

with dangerous weapons. The evidence of PW-10 Medical

Officer Dr. Mohod shows that injuries received by Baburao

were simple injuries and none of the injured received injury

on vital part. If the manner of incident narrated by injured

witnesses is to be believed, then medical evidence was

expected to be otherwise. There ought to have been

multiple injuries on vital parts of the injured. This is not so.

10] The evidence of PW-6 Indirabai makes it clear that

at the relevant time she was in her house near Devri Fata

and on hearing commotions, she reached the spot. Though

she stated that 15 persons were assaulted Bhausaheb and

Raosaheb, she could identify only Gopal Rane and Sanjay

Choudhary. Rest of the assailants were not identified by

Indirabai. Test identification parade was not held during

investigation. She does not attribute any specific role to

Gopal and Sanjay. In her cross-examination, she admitted

that she reached the spot and that time Raosaheb and

Bhausaheb were lying on the ground. It means that she is

not an eyewitness to the incident and she reached the place

of occurrence after the incident. The evidence of Indirabai

is, therefore, not helpful to the prosecution on the second

phase of incident which took place at Devri Fata.

11] Accused have been charged with the offence of

dacoity. Though Raosaheb stated that accused snatched

away Rs.3,000/- from his bag, during investigation there is

no recovery of Rs.3,000/-. In the absence of recovery, mere

statement of Raosaheb cannot be accepted that he was

carrying Rs.3,000/- in a bag at the relevant time.

12] It is pertinent to note that all the material

witnesses examined by the prosecution are the close

relatives. No independent witness on incidents which took

place according to the prosecution in the house of Baburao

and at Devri Fata has come forward to support the version of

injured persons and the complainant. As political enmity is

admitted between the parties, trial court has rightly

observed that in view of inconsistencies in the evidence of

injured witnesses and the medical evidence, absence of

corroboration would be fatal to the prosecution case. The

view taken by the trial court is a reasonable and possible

view. The same is based on the evidence on record.

Therefore, this court finds no reason to take a view different

than taken by the trial court. Prosecution has not

challenged the judgment and order of acquittal against the

other accused persons. No specific role is attributed even to

accused nos.1 and 11. In this background, appeal against

accused nos.1 and 11 is unsustainable and it deserves to be

dismissed. In the result, following order is passed :

(i) Criminal Appeal No.274/2002 stands dismissed.

 (ii)           No costs.




                                   (Kum. Indira Jain, J.)



 Gulande, PA