Bombay High Court
Bhagwan Maroti Chautmal vs State Of Maharashtra on 14 August, 2017
Bench: Sangitrao S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.547 OF 2001
1. Bhagwan s/o Maroti Chautmal,
Age : 38 years,
Occu.: Agriculture,
R/o. Koli, Taluka Hadgaon,
District Nanded
2. Shivaji s/o Bhiku Gaikwad,
Age : 28 years,
Occu.: Agril.Labourer,
R/o.: As above,
3. Rama s/o Kerba Gaikwad,
Age : 38 years,
Occu. and R/o. As above,
4. Devidas @ Dasa s/o Shankar (Abated)
Paikrao, Age : 48 years,
Occu. and r/o. As above,
5. Kailas s/o Maroti Chautmal,
Age : 33 years,
Occu.: Agriculture,
R/o. As above,
6. Dadarao s/o Ramji Chautmal,
Age : 43 years, Occu. and
R/o. As above,
7. Bandu s/o Bhimrao Chautmal,
Age : 28 years, Occu. and
R/o. As above,
8. Punjaji s/o Bhagwan Chautmal, (Abated)
Age : 33 years, Occu. and
R/o. As above,
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9. Prakash s/o Bhagwanrao Chautmal,
Age : 38 years, Occu. and
R/o. As above ..APPELLANTS
(Orig.Accused Nos.1,6,7,
10,13,17,18,21 and 23
respectively)
VERSUS
State of Maharashtra,
Through Public Prosecutor ..RESPONDENT
----
Mr. V.R. Dhorde, Advocate for the appellants
Ms. R.P. Gaur, A.P.P. for the respondent/State
----
CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : 28th JULY, 2017
PRONOUNCED ON: 14th AUGUST, 2017
JUDGMENT :
Being aggrieved by the judgment and order of
conviction and sentence passed by the learned 2nd
Additional Sessions Judge, Nanded, on 27th November, 2001
in Sessions Case No.163 of 1998, the appellants have
preferred this appeal. For the sake of convenience, the
appellants are hereinafter referred to as the accused
and by the same numbers by which they were referred to
before the Trial Court.
2. The prosecution was launched against 24 accused
persons for the offences punishable under Sections 302,
3 APEAL_54701
341, 324, read with Section 149 and under Section 147
and 148 of the Indian Penal Code ("I.P.C.", for short)
and further under Section 135 of Bombay Police Act.
3. Accused Nos.2 to 5, 8, 9, 11, 12, 14, 15, 16,
19, 20, 22 and 24 came to be acquitted by the Trial
Court of all the offences with which they were charged.
The prosecution has not filed any appeal against the
said acquittal and, as such, the judgment and order
acquitting them has attained finality.
4. The appellants have been convicted of the
following offences and have been sentenced as shown
below:-
Accused Appellant Conviction Sentence
No. No. U/s. of IPC
1 1 304-II/149 RI 10 years,Fine Rs.5000/-
17 6 326/149 RI 5 years, Fine Rs.5000/-
13 5 341 SI 1 month, Fine Rs.500/-
6 2 324 RI 1 year, Fine Rs.1000/-
4 APEAL_54701
5. Accused Nos. 10 and 21 namely Devidas and
Punjaji respectively expired during the pendency of the
appeal, hence the appeal stood abated against them.
6. The accused, who are the appellants herein have
not been convicted by the Trial Court for the offences
with which they were charged excepting for the offences
which have been referred to above in the chart. The
prosecution has not filed any appeal for not convicting
and sentencing the said accused persons for those
offences. As such, the impugned judgment and order
holding them not guilty of those other offences have
become final. Consequently, the vires of the impugned
judgment and order to the extent of convicting the
accused/appellants for the above-mentioned offences only
would be considered in this appeal.
7. The case of the prosecution, in brief, is that
there had been a quarrel between one Mithu Tukaram
Gaikwad and the accused on one hand and the deceased -
Maroti Jalba Jogdand on the other on 27th June, 1998.
All of them are the residents of village Koli, Taluka
5 APEAL_54701
Hadgaon, District Nanded. The deceased Maroti had taken
an agricultural land of one Tukaram Paradhi for
cultivation on Batai basis in the year 1998. On 8th July,
1998, he had gone to plough that land in the morning.
Sheshrao, (who is the son of the deceased Maroti), his
wife i.e. the informant Shobhabai, and one Kavita aged
about 10 years, who is the niece of Sheshrao, also went
to that land after some time. All of them started coming
back to the village at about 6.00 p.m. When they reached
near the agricultural land of accused No.13 - Kailash,
he untied the bullocks from the yoke of the plough and
restrained the deceased Maroti from proceeding further.
Accused No.1 came from behind the deceased Maroti and
gave blow of axe on his head and hands. Thereafter, the
other 20 accused persons and others came to that spot
armed with sticks and axes and assaulted the deceased
Maroti. Accused Nos.1 and 3 had caught hold of the
deceased Maroti. The deceased Maroti sustained serious
bleeding injuries. He fell down on the ground. The
accused persons jumped on the abdomen of the deceased
Maroti with a view to confirm that he expired.
Thereafter, accused No.18 rushed towards the informant
Shobhabai armed with a stick, asking her as to what she
6 APEAL_54701
was watching. The informant and Kavita got frightened
and started running towards the village. The accused
persons also rushed towards Sheshrao, armed with sticks
and axes and beat him with sticks. Sheshrao did not come
home in the night.
8. The informant went home alongwith Kavita and
informed about the incident to her mother-in-law and
sister-in-law- Anjanabai. They wanted to go to the spot
of the incident to see Maroti. However, the assailants
of the deceased Maroti were standing armed with sticks
and axes on the road in front of the house of the
deceased Maroti. Due to their fear, the informant and
her mother-in-law and sister-in-law did not go to the
police station as well.
9. The police visited the house of the deceased
Maroti at night. At that time, the informant visited the
spot of the incident with the police and after seeing
the dead body of the deceased Maroti, she went to the
police station Hadgaon and lodged report against the
accused persons.
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10. On the basis of the report lodged by the
informant, Crime No. 123 of 1998 came to be registered
against 24 accused persons for the above-mentioned
offences. The investigation followed. The inquest
panchanama of the deceased Maroti was prepared. The dead
body of the deceased Maroti was referred to the Medical
Officer, Rural Hospital, Hadgaon, where the postmortem
was conducted on 9th July, 1998 between 4.00 p.m. to 5.30
p.m. The Medical Officer noticed eleven injuries on the
body of the deceased Maroti. He opined that injury Nos.1
and 2 on the head, which possibly were caused by axe
blows, caused death of the deceased Maroti. Blood
stained clothes, which were on the dead body of the
deceased came to be seized under a panchanama. The spot
panchanama was prepared. The accused persons were
arrested. Axes were seized at the instance of accused
Nos.1 and 10, while sticks were seized in pursuance of
the statements made by accused Nos.13 and 17. The
statements of the witnesses were recorded. After
completion of the investigation, 24 accused came to be
chargesheeted for the above-mentioned offences.
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11. The learned Trial Judge framed charges (Exh.29)
against all the accused for the above-mentioned
offences. The accused pleaded not guilty and claimed to
be tried. Their defence was that of total denial and
false implication due to previous rivalry. The
prosecution examined 12 witnesses to prove the guilt of
the accused persons for the above-mentioned offences. On
the other hand, the accused examined two witnesses to
show that Kavita was in the school and not with the
informant and Sheshrao in the agricultural land on the
day of the incident. After evaluating the evidence on
record, the learned trial Judge convicted and sentenced
the appellants/accused as stated above, and acquitted
other accused persons of the all the offences and the
appellants of the remaining offences.
12. The learned Counsel for the accused submits
that the evidence of the prosecution is not sufficient,
cogent and consistent to establish the guilt of the
appellants of the offences mentioned above. The
prosecution has relied on the ocular evidence of the
informant - Shobhabai (P.W.1), her niece - Kavita
(P.W.6) and her husband - Sheshrao (P.W.12). He then
9 APEAL_54701
submits that the evidence of the informant is very
vague, general and scanty. The learned Trial Judge has
discarded the evidence of Kavita (P.W.6) on the ground
that on the day of the incident, she was in her school
as has been stated by the in-charge Headmaster -
Sonbarao Kadam (D.W.1) and school teacher - Yashwant
Sawate (D.W.2). The evidence of Sheshrao (P.W.12) is
full of omissions. The evidence of the informant and
Sheshrao (P.W.12) is not consistent on certain vital
facts, which strongly creates doubt about their
veracity. The medical evidence does not support the
evidence of the informant and Sheshrao (P.W.12). Though
the independent witnesses could have been produced by
the prosecution, no independent witness has been
examined without assigning any reason. The informant
and Sheshrao (P.W.12) are the interested witnesses.
There has been delay in lodging the F.I.R. which has not
been explained. The informant does not know the full
names of any of the accused. However, the F.I.R.
contains full names of the accused persons, which
indicates that the informant is not the author thereof.
The informant and Sheshrao (P.W.12) state that they had
narrated the incident to the police much prior to filing
10 APEAL_54701
of the F.I.R. (Exh. 75). However, their first narration
about the incident has not been produced before the
Court. F.I.R. (Exh. 75) cannot be said to be the first
information about the incident. The learned Counsel
submits that the learned Trial Judge did not appreciate
the facts and evidence on record correctly and properly
and has wrongly convicted the accused/appellants. On
these grounds he submits that the impugned judgment may
be quashed and set aside and the accused/appellants may
be acquitted.
13. As against this, the learned A.P.P. submits
that only because the informant and Sheshrao (P.W.12)
are the relatives of the deceased - Maruti, their
evidence cannot be discarded on the say that they are
interested witnesses. She submits that the evidence of
both of these witnesses is quite natural and probable.
No third person was available to witness the incident,
therefore, non-examination of any independent witness
would not be fatal to the prosecution. She submits that
the medical evidence strongly supports the versions of
the informant and Sheshrao (P.W.12). The evidence of
these witnesses shows that after the incident, the
11 APEAL_54701
assailants of the deceased - Maruti threatened them and
because of that they could not approach the police
station immediately, resulting into delay in filing the
F.I.R. According to her there are no material omissions
or inconsistencies in the evidence of the ocular
witnesses. The evidence on record is quite natural,
probable and acceptable. She submits that the learned
Trial Judge has rightly scrutinised the evidence and has
rightly convicted the accused/appellants of the above
mentioned offences.
14. The prosecution is relying on the medical
evidence, ocular evidence and circumstantial evidence to
establish guilt of the accused.
MEDICAL EVIDENCE
15. Dr. Lomte (P.W.8) (Exh. 90) deposes that he
conducted postmortem of the body of the deceased -
Maruti on 09th July, 1998 and found the following
external injuries:-
1) Sharp edged injury on the right
forehead, 1cm above right eye-brow,
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horizontally placed measuring 4cm x 1cm x
bone deep.
2) Sharp edged injury on right parietial
region of scalp 1cm away and parallel to
central line of scalp 6cm x 1cm x bone deep
3) Sharp edged injury on left thigh at
lower 1/3 on lateral aspect, 1.5cm x 0.5cm
4) Contused lacerated wound on right leg
anteriorly at lower 1/3, 2cm x 05cm
5) Contused lacerated wound on right leg at
middle 1/3 on lateral aspect 2cm x 05cm.
6) Contused lacerated wound on right leg at
upper 1/3 anterior 7cm x 3cm x bone deep,
through which fracture of right tibia and
fibula seen.
7) Sharp edged injury on left wrist joint
posterially 3cm x 1cm.
8) Contusion on left forearm 6cm x 3cm
reddish in colour with simple fracture of
radius and ulna.
9) Contused lacerated wound on right
forearm at middle 1/3 anterially 6cm x 4cm x
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bone deep, through which fracture of radius
and ulna was seen.
10) Contusion on left scapular region of
balk horizontally placed 6cm x 2cm.
11) Contusion on right infra scapular region
of balk, horizontally placed 5cm x 2 cm.
16. Upon internal examination, he noticed haematoma
under right fronto parietal region, fracture of right
parietal bone and subdural haematoma on right parietal
lobe. He deposes that all the injuries were antemortem.
He opined that Maruti died of the shock due to head
injury. He prepared memorandum (Exh. 91) of the
postmortem. He opined that injury Nos. 1, 2, 3 and 7
referred to above were possible by Axes Article Nos. 1,
6 and 7 which were shown to him.
17. Dr. Lomte (P.W.8) was cross-examined on behalf
of the accused. Nothing has been elicited therein to
indicate that the injuries sustained by Maruti were
either accidental or suicidal. Considering this medical
evidence, it would be clear that the death of Maruti was
homicidal.
14 APEAL_54701
OCULAR EVIDENCE
18. Before adverting to discuss the ocular evidence
it would be necessary to point out that the
Investigation Officer has not been examined by the
prosecution since he was absconding and as such was not
available. The learned A.P.P. invented a novel
procedure for proving the omissions. He filed a pursis
(Exh.118) and accepted all the omissions and
contradictions in the evidence of the ocular witnesses.
Albeit, the fact remains that the said omissions, even
in the absence of the evidence of the Investigation
Officer, would enure to the benefit of the accused.
19. The informant and Kavita (P.W.6) do not state
that accused no.1 gave axe blow on any particular part
of the body of the deceased - Maruti. Sheshrao (P.W.12)
deposes that accused no.1 gave axe blow on the back
portion of the neck of the deceased - Maruti. The
evidence of Dr. Lomte (P.W.8) does not disclose any
injury on the back side of the neck of the deceased -
Maruti. Injury nos.1 and 2, which were possibly caused
by the axe blow, were on the right forehead and right
15 APEAL_54701
parietal region of the scalp respectively of the
deceased - Maruti. In the absence of any sharp edged
injury on the back side of the neck of the deceased -
Maruti, the evidence of Sheshrao (P.W.12) that accused
no.1 caused any injury on the person of the deceased -
Maruti by means of an axe cannot be accepted. The
medical evidence, thus, does not support the ocular
evidence in respect of the injuries alleged to have
caused by the accused no.1.
20. The informant - Shobha (P.W.1) deposes at
Exhibit 74 that on the day of the incident at about
05.30 p.m. to 06.00 p.m., after having done the
agricultural work, the deceased - Maruti, Kavita
(P.W.6), Sheshrao (P.W.12) and herself were going back
to their village from agricultural land of one Tukaram
Paradhi which were taken by the deceased Maruti for
cultivation on batai basis. The deceased - Maruti was
driving the bullocks attached to the yoke of the plough.
They reached neaer the field of accused No.13 - Kailash
Maroti Chautmal (Manusmare). Accused No.13 obstructed
the plough of the deceased Maruti and untied the
bullocks from the yoke. Thereafter accused No.1 came
16 APEAL_54701
there and gave axe blow to the deceased - Maruti.
Accused No.23 instigated the other accused persons to
assault the deceased - Maruti. The hands and legs of
the deceased - Maruti were fractured. The accused
persons made the deceased - Maruti to roll down on the
ground. Accused No.7 then started chasing Kavita and
herself. Both of them rushed to their house. This is
what is the account of the incident narrated by the
informant.
21. The evidence of the informant, indeed, is very
vague and general. She does not state specifically as
to on what part of the body of the deceased - Maruti,
axe blow was given by accused No.1. She did not
attribute any specific overt act against accused nos. 2
to 12, 14 to 22 and 24. She admits that the fact that
accused No.23 instigated the other accused persons to
assault the deceased - Maruti is not mentioned in the
F.I.R. (Exh. 75). This is a material omission so far as
the role attributed against accused no.23.
22. Though Kavita (P.W.6) (Exh. 88) claims that she
was with the deceased Maruti at the time of the
17 APEAL_54701
incident, it is stated by her school teacher Yashwant
Sawate (D.W.2) (Exh. 113) that on 08th July, 1998 i.e.
the day of the incident, she had attended the school. He
states that the school hours were from 10.00 a.m. to
05.00 p.m. In view of this, the learned Trial Judge did
not accept the presence of Kavita (P.W. 6) at the time
of the incident and discarded her evidence. Even
otherwise her evidence also is very vague, general and
scanty. She states that when the deceased - Maruti was
carrying the plough from near the field of one
Manusmare, accused No.13 obstructed him from carrying
the plough. Then accused No.1 gave a blow of axe to the
deceased - Maruti. The deceased - Maruti fell down. At
that time the Sarpanch asked the other persons to
assault the deceased - Maruti. Therefore all the
persons started beating the deceased - Maruti with
sticks and axes. She states that there were about 50
persons who assaulted the deceased - Maruti. Thereafter
those persons started chasing her and the informant.
Prior to that those persons danced on the body of the
deceased - Maruti, which fact has not been stated either
by the informant or Sheshrao (P.W.12). She tried to
point out to accused Nos. 3, 4 and 5 as the assailants
18 APEAL_54701
of the deceased - Maruti. However, they have been
acquitted by the Trial Court.
23. In the cross-examination, Kavita (P.W.6)
expressed inability to state as to how long the incident
was going on and how long she was standing on the spot
of the incident. She admits that the fact that Bhagwan
(accused No.1) gave an axe blow to the deceased Maruti
does not find place in her statement before the police.
She did not assign any reason for this material
omission. In paragraph No.7 of her deposition she
deposes that she did state before the police that the
Sarpanch asked other persons to assault the deceased -
Maruti, that the deceased - Maruti was assaulted by the
said persons with sticks and axes, that 50 persons were
present at the time of the incident and accused Nos. 3,
4 and 5 assaulted the deceased - Maruti. She admits
that the said facts do not find place in her statement
made before the police. She did not assign any reason
for these material omissions.
24. Sheshrao (P.W.12) deposes that when the
informant, Kavita (P.W.6), the deceased - Maruti and
19 APEAL_54701
himself were going back to their house from the
agricultural land of one Tukaram Paradhi and when they
reached near the land of Manusmare, accused nos. 1, 4,
6, 10, 11, 13, 14, 15, 20, 21 and 23 came out of a hut
that was in that land. Accused no.13 obstructed the
plough and untied the bullocks from the plough. Accused
no.23 asked other accused persons to assault the
deceased - Maruti. Then accused no.1 gave an axe blow
on the back portion of the neck of the deceased -
Maruti. The deceased - Maruti fell down. Thereafter,
accused nos. 10 and 21 gave axe blows to the deceased -
Maruti. Accused nos. 6, 7, 17, 18 and 22 gave stick
blows on the person of the deceased - Maruti. He was
shouting for help but accused nos. 6 and 7 inflicted two
stick blows on his person and therefore, he ran away
from the spot of the incident.
25. In para 9 of the deposition of Sheshrao
(P.W.12) material omissions have been brought on record.
It would be worthwhile to reproduce the material part of
that paragraph, which reads as under:
"I did state the police while recording
statement that Prakash asked other accused
20 APEAL_54701
persons to assault my father. I cannot
assign any reason for the said omission. It
was stated to police that the accused
Bhagwan gave an axe blow to my father on the
back portion of the neck of my father. I
cannot assign any reason for omitting the
said fact, from my statement. While
recording statement, I had stated that the
accused Rama, Shamrao, Bandu, Dadarao and
Shivaji gave my father stick-blows. I
cannot assign any reason for omitting the
said fact from my statement. It was stated
to police that I was shouting for help at
the time of the incident. I cannot assign
any reason for omitting the said fact from
my statement. I had stated the police that
accused Rama assaulted me with sticks. I
cannot assign any reason for omitting the
said fact from my statement."
26. These omissions are very material. If they are
discarded from the evidence of Sheshrao (P.W.12) as has
been given by him in his examination-in-chief, nothing
would remain there to connect the above mentioned
accused persons with the incident of assaulting the
deceased - Maruti.
21 APEAL_54701
27. The informant deposes in paragraph no.10 of her
evidence that the incident lasted for about one hour and
that she stayed on the spot of the incident for about 1½
hour. Kavita (P.W.6) states that after assaulting the
deceased - Maruti, the accused persons started chasing
the informant and herself. She admits that since she
apprehended that the accused persons would assault the
informant and herself, they got frightened and started
running away from the spot. Sheshrao (P.W.12) states
that after he was assaulted by accused nos.6 and 7 with
sticks, he ran away from the spot. From the evidences
of Kavita (P.W.6) and Sheshrao (P.W.12) it is clear that
they did not stay at the spot of the incident for a long
period as has been stated by the informant. Thus,
Kavita (P.W.6) and Sheshrao (P.W.12) do not corroborate
the evidence of the informant on the point of duration
of the incident as well as the stay on the spot of the
incident after the incident. The evidence of the
informant that the incident lasted for one hour and she
stayed on the spot of the incident for 1½ hour is not at
all natural, probable and believable. It creates doubt
about her presence at the time of the incident.
22 APEAL_54701
28. Sheshrao (P.W.12) states that there was nobody
in the field and nobody was passing through the road,
except the accused persons, at the time of the incident.
On the other hand, the informant states in para 9 of her
deposition that there was traffic on that road at the
time of occurance of the incident. She then
specifically states in para 10 that the other persons
were passing through that road when the incident was
going on. However, nobody has been examined by the
prosecution from amongst those persons, who were passing
along the road at the time of the incident. Thus,
though independent evidence was available, the
prosecution suppressed that evidence.
29. As stated above, the evidence of the informant,
Kavita (P.W.6) and Sheshrao (P.W.12) is not consistent
with each other on material points referred to above.
The evidence of the informant is very vague, general and
scanty. Her presence at the time of the incident itself
appears to be doubtful. The presence of Kavita (P.W.6)
has been rightly rejected by the learned Trial Judge in
view of the evidence of her school teacher. Even
otherwise, her evidence also is not specific and
23 APEAL_54701
clinching to establish overt acts of the accused. The
evidence of Sheshrao (P.W.12) is full of material
omissions. Thus, the ocular evidence produced by the
prosecution is not sufficient, cogent and dependable to
establish their guilt for the offences of which they are
charged.
DELAY IN LODGING F.I.R.
30. The incident took place on 8th July, 1998 at
about 5.30 p.m. in the agricultural land of one
Manusmare, situated within the local limits of village
Koli. Sheshrao (P.W.12) states that there is a police
outpost at village Nivgha and that village Koli comes
within the local limits of the said police outpost.
P.H.C. Chavan (P.W.7) (Exh.89) states that on 8 th July,
1998 he was on duty at police outpost, Nivgha. On that
day one Ram Kale and one woman from Paradhi community
met him and informed that Maruti was assaulted with
sticks and axes. Then he went to village Koli and
visited the house of the deceased - Maruti. After
disclosing his identity, the informant opened the door
of the house of the deceased - Maruti. She told him
24 APEAL_54701
that Maruti was assaulted by the villagers and was
murdered by sticks and axes near the field of Manusmare.
In para 2 of her deposition the informant states that
after she opened the door of the house, the police took
her to the Police Station Hadgaon where she narrated the
incident before the police and the police recorded the
F.I.R. (Exh.75). This version has been contradicted by
herself in para 4 of her cross-examination, where she
admits that after the police visited her house in the
night and asked her about the incident, she narrated
about the incident before the police and the police
recorded it. She further admits that after recording
her report, Anjanabai, other family members and herself
were taken by the police to the spot of the incident
where the dead body of Maruti was lying. The
endorsement of F.I.R. (Exh.75) shows that it was scribed
as narrated by the informant in the police station
Hadgaon itself on 9th July, 1998 at 7.30 a.m. The
prosecution has not produced the F.I.R. that was
recorded by PHC Chavan (P.W.7) in the night of the
incident when he visited the house of the deceased -
Maruti and got the information about the incident from
the informant.
25 APEAL_54701
31. The informant admits that she does not know the
fathers' names and surnames of the persons of her
village. She could not tell even the full names of the
accused persons before the Court. However, the F.I.R.
(Exh.75) contains full names of all the accused persons.
This fact itself indicates that somebody else had given
the names of the accused persons for being recorded in
the F.I.R. The informant, therefore, cannot be called
as the author of the said F.I.R. Moreover, the F.I.R.
(Exh.75) cannot be recognised as the first information
in respect of the incident, because prior to that, PHC
Chavan (P.W.7) had recorded the F.I.R. of the informant
at the house of the deceased Maruti at village Koli.
The said F.I.R. has been suppressed by the prosecution.
In the circumstances, the F.I.R. cannot be used to lend
corroboration to the evidence of the informant.
32. Sheshrao (P.W.12) states that after the
incident he went to village Marlegaon. There were two
policemen. He narrated them about the incident. He
stayed with them during the entire night. In the
morning he went to Nanded and met the District
26 APEAL_54701
Superintendent of Police ("D.S.P.", for short). He
informed about the incident to the D.S.P. at about 05.00
p.m. He states that he did not go to Police Station
Hadgaon until he was directed by the D.S.P. to go to the
Police Station Hadgaon from Nanded.
33. When Sheshrao (P.W.12) states that he met two
policemen at Marlegaon and narrated them the incident,
the prosecution has totally suppressed as to who were
those policemen and what was the information given to
them by Sheshrao (P.W.12) in respect of the incident.
It is not explained as to what those policemen did after
receiving information from Sheshrao (P.W.12).
34. The informant states that she was present in
the Police Station Hadgaon for about two hours. She
specifically states that Sheshrao (P.W.12) had gone to
Hadgaon during the night after the incident, instead of
going home and that when she went to Hadgaon with
police, she met there Sheshrao (P.W.12). If this
evidence is considered, it will be clear that the
version of Sheshrao (P.W.12) that in the night, after
the incident, he did not visit Police Station Hadgaon
27 APEAL_54701
and that he visited Police Station Hadgaon only after he
came back from Nanded, after meeting the D.S.P. at 05.00
p.m. on 9th July, 1998, cannot be believed. There is
nothing on record to show that Sheshrao (P.W.12)
actually met the D.S.P. and gave any information in
respect of the incident. Sheshrao (P.W.12) has not
assigned any satisfactory reason for not lodging the
report in respect of the incident either in Police
Outpost, Nivgha or Police Station Hadgaon immediately
after the incident when there was no impediment for him
in lodging such report.
35. The learned Counsel for the accused cited a
judgment in the case of Thulia Kali Vs. The State of
Tamil Nadu AIR 1973 SC 501 wherein it has been observed
that the first information report in a criminal case is
an extremely vital and valuable piece of evidence for
the purpose of corroborating the oral evidence adduced
at the trial. The importance of the report can hardly
be overestimated from the standpoint of the accused.
The object of insisting upon prompt lodging of the
report to the police in respect of commission of an
offence is to obtain early information regarding the
28 APEAL_54701
circumstances in which the crime was committed, the
names of the actual culprits and the part played by them
as well as the names of eye witnesses present at the
scene of occurrence. Delay in lodging the first
information report quite often results in embellishment
which is a creature of afterthought. On account of
delay the report not only gets bereft of the advantage
of spontaneity danger creeps in of the introduction of
coloured version, exaggerated account or concocted story
as a result of deliberation and consultation. It is,
therefore, essential that the delay in the lodging of
the first information report should be satisfactorily
explained.
36. In the present case, delay in lodging the
F.I.R. has not at all been explained by the prosecution.
The manner in which the names of the accused persons
have been given in detail in the F.I.R. (Exh.75) when
the informant was not knowing the names of the said
persons, makes it clear that the F.I.R. (Exh.75) came to
be lodged after due deliberation and discussion with
some third persons who provided the full names of the
persons to be shown as accused in the F.I.R. This
29 APEAL_54701
unexplained delay in lodging the F.I.R. would create
strong doubt about the case of the prosecution.
CIRCUMSTANTIAL EVIDENCE
37. The prosecution has examined Devrao Bhalerao
(Exh.81), panch to seizure panchanama (Exh.82) in
respect of the cloths of the deceased - Maruti. Even if
his evidence is accepted as it is, it would not
implicate any of the accused directly.
38. Ankush Kadam (Exh.83) happened to be the panch
to the memorandum of the statements Exh.84 and 85) of
the accused 1 and 10 respectively in pursuance of which
one axe each is alleged to have been seized on 30 th July,
1998. He did not support the prosecution in his
examination-in-chief. In the cross-examination taken by
the learned A.P.P., he went on admitting everything that
was suggested to him. However, in his cross-examination
taken on behalf of the accused, he again took somersault
and went on admitting everything that was suggested to
him by the learned Counsel for the accused. Thus, his
evidence is of no use to the prosecution. Moreover, the
axes allegedly seized at the instance of accused nos. 1
30 APEAL_54701
and 10 do not have any specific identification marks.
They are of general description. It is common knowledge
that such type of axes are available in the houses of
almost all the agriculturists. The seized axes were not
sent to the chemical analyst for analysis and report.
No blood stains were stated to have been noticed on
those axes. In the circumstances, seizure of the said
axes would be of no use to the prosecution.
39. The prosecution examined Madhavrao (Exh.87),
Shravan (Exh.92), Sk. Kaleem (Exh.95) and Ahmed Khan
(Exh.96), who happened to be the panchas to the
memorandums of statements of accused nos. 17, 13, 7, 1
and 6 in pursuance of which sticks are alleged to have
been seized from accused nos.6, 7 and 13 and an axe is
stated to have been seized from accused no.1. All these
witnesses do not support the prosecution. They have
denied that these accused persons made any disclosure
statements before them and produced any stick or axe in
their presence.
40. There is no seizure of the cloths of any of the
accused persons. There is no C.A. report in respect of
31 APEAL_54701
the seized articles. The prosecution totally failed to
prove that incriminating articles were seized at the
instance of any of the accused. Thus, the
circumstantial evidence produced by the prosecution is
absolutely of no assistance to connect any of the
accused with the incident in question.
41. The prosecution has failed to produce
sufficient, cogent, consistent and dependable evidence
on record to prove the guilt of the appellants beyond
reasonable doubt. The learned Trial Judge did not
appreciate the facts of the case as well as the evidence
on record correctly and properly and wrongly held the
present appellants/accused guilty of the above mentioned
offences on the basis of the same evidence on which he
acquitted the remaining fifteen accused persons. It is
strange to note that the learned Trial Judge convicted
appellant no.1 only for the offence punishable under
Section 304 Part II read with Section 149 of the Indian
Penal Code. If it is accepted that accused no.1 was a
member of an unlawful assembly while committing the said
offence, the learned Trial Judge could not and should
not have convicted appellant/accused no.1 alone for the
32 APEAL_54701
said offence with the aid of Section 149 of the Indian
Penal Code. As stated above, the prosecution has failed
to establish that the injury caused on the head of the
deceased - Maruti was caused by accused no.1. As such,
the learned Trial Judge committed a serious error in
convicting accused no.1 for the said offence and that
too, with the aid of Section 149 of the Indian Penal
Code. The learned Trial Judge ignored the material
omissions which were brought on record in the cross-
examination of the informant and Sheshrao (P.W.12). The
conviction recorded by the learned Trial Judge against
the accused/appellants is not supported by legal and
acceptable evidence. The impugned judgment and order
are liable to be quashed and set aside. In the result,
I pass the following order:-
O R D E R
i) The Criminal Appeal is allowed.
ii) The impugned judgment and order convicting
and sentencing the appellants are quashed and set
aside.
33 APEAL_54701
iii) The appellants are acquitted of the
offences punishable under Sections 304 Part II,
326, 324, 341, 147 and 148 of the Indian Penal
Code.
(iv) The bail bonds of the appellants are
cancelled. They are set at liberty.
(v) The appeal stood abated as against
appellant nos. 4 and 8.
(vi) Fine amount deposited by the appellants be
refunded to them.
(vii) The appeal stands disposed of
accordingly.
[SANGITRAO S. PATIL]
JUDGE
SSD
