Bhatu Motiram Pimpale & Ors vs The State Of Maharashtra
2017 Latest Caselaw 10014 Bom

                                                         Cri. Appeal No.420/2002
                                      (( 1 ))


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               BENCH AT AURANGABAD



                        CRIMINAL APPEAL NO.420 OF 2002



 1.       Bhatu Motiram Pimpale,
          Age 45 years, Occu. Agri.

 2.       Kautik Motiram Pimpale,
          Age 35 years, Occu. Agri.

          Both R/o Navlane,
          Tq. Dhule, District Dhule

 3.       Bhaiyya Gulab Bachhav,
          Age 30 years, Occu. Agri.,
          R/o Karle, Tq. Sindkheda,
          District Dhule

 4.       Sau. Kamalbai Bhatu Pimpale,
          Age 38 years, Occu. Household,
          R/o Navlane, Taluka and
          District Dhule

 5.       Sau. Rekhabai Sanjay Nagmal
          Age 21 years,Occu. Household,
          R/o Anjanvihara, Tq. Sindkheda,
          District Dhule              ...   APPELLANTS
                                      (Orig.Accused No.1 to 5)

          VERSUS

 The State of Maharashtra
 Copy to be served on A.P.P.
 High Court of Judicature fo
 Bombay, Bench at Aurangabad                ...   RESPONDENT


                               .....
 Shri B.R. Warma, Advocate for appellants
 Mrs. M.A. Deshpande, A.P.P. for respondent
                               .....



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                                                            Cri. Appeal No.420/2002
                                        (( 2 ))



                                 CORAM:       SUNIL K. KOTWAL, J.

                  Date of reserving judgment : 15th December, 2017
                  Date of pronouncing judgment : 22nd December, 2017


 JUDGMENT:

1. This appeal is directed against the judgment and

order of conviction dated 4/7/2002, passed by Additional

Sessions Judge, Dhule in Sessions Case No.46/1997. The

appellants are original accused and respondent is State of

Maharashtra.

2. Facts leading to institution of this appeal are that,

the accused Nos.1 to 5 were prosecuted for the offences

punishable under Sections 143, 147, 148, 302, 324, 504, 506

read with Section 149 of the Indian Penal Code. Prosecution

case in brief is that, the informant Nanda Vishnu Nagmal

(P.W.1) was the father-in-law of accused No.5 Rekha Sanjay

Nagmal. Informant Nanda used to reside at village

Anjanvihire along with his sons namely Sanjay, Niranjan,

Mahendra and Prabhakar. Prior to four years from the date of

incident, Sanjay Nagmal married accused No.5 Rekha.

However, accused No.5 and her husband Sanjay Nagmal

frequently quarreled as Sanjay was doubtful about character

Cri. Appeal No.420/2002 (( 3 ))

of accused No.5 Rekha. 8 to 10 days before the occurrence,

Sanjay left the house of informant on account of quarrel with

accused No.5. So also, accused No.5 left her matrimonial

home and went to her maternal home at Karlegaon.

3. On 1.10.1996, when informant Nanda Nagmal

(P.W.1) was passing by the village road, in front of house of

Jairam Patil at about 11.00 a.m., he met with accused No.1 to

5. That time, accused No.1 was holding Babhul log in his

hand. Accused No.1 requested the informant Nanda to come

to the house of informant. On refusal by informant (P.W.1),

accused No.1 to 4 inflicted wooden log blows on his head,

back and stomach. Thereafter, accused No.1 to 5 rushed

towards house of informant. By that time, Shanubai, wife of

Nanda Nagmal, Mahendra Nanda Nagmal and Prabhakar

Nanda Nagmal reached to their house as they were called by

Niranjan Nanda Nagmal from their agricultural land. All of

them were assaulted by accused persons by wooden log

blows. Mahendra sustained head injury during the

occurrence. Vishvas Tarachand Patil, Jagan Khandu,

Mahendra and other villagers rescued the informant and his

family members from the clutches of the accused persons.

When all accused were trying to run away from village

Anandvihire, that time villagers apprehended them.

Cri. Appeal No.420/2002 (( 4 ))

Informant, his wife Shanubai and injured sons went to Police

Station Dondaicha. Police referred them to P.H.C., Dondaicha.

Dr. Balchand Jain (P.W.6) examined the injured Nanda

(P.W.1), Prabhakar (P.W.3), Mahendra (deceased) and

Shanubai (P.W.2) and issued medical certificates (Exhs.32 to

35). As Mahendra and Shanubai were seriously injured, they

were referred to Civil Hospital, Dhule for better treatment.

Dr. Prabhakar Jagtap, Medical officer, Civil Hospital, Dhule

(P.W.10) examined them and issued injury certificates

(Exhs.50 to 52). Police Inspector Shashikant Rajhans (P.W.9)

obtained F.I.R. Exh.23 from informant Nanda Nagmal at

Cottage Hospital, Dondaicha. On the basis of that F.I.R.,

offences came to be registered under Sections 143, 147, 148,

307, 324, 504, 506 read with Section 149 of the Indian Penal

Code. During investigation, he seized three wooden logs as

weapons of the offence. By that time, injured Mahendra

Nanda Nagmal succumbed to his injuries at Civil Hospital,

Dhule on 2.10.1996. Therefore, offence under Section 302 of

the Indian Penal Code was registered against the accused

persons. Dr. Avinash Ruikar (P.W.5) performed autopsy

examination on the dead body of Mahendra Nagmal and

issued post mortem notes (Exh.30). By that time, the

apprehended accused Nos.1 to 5 were handed over to police

by villagers and they were arrested and their blood stained

Cri. Appeal No.420/2002 (( 5 ))

clothes were seized by investigating officer under seizure

panchanama (Exh.45). Accused were also referred for

medical examination. During the course of investigation, the

seized muddemal was referred to Chemical Analyser,

Aurangabad for chemical analysis. After completion of the

investigation, charge sheet was submitted against accused

Nos.1 to 5 before Judicial Magistrate, First Class, Sindkheda

for the offences punishable under Sections 302, 307, 143,

147, 148, 302, 324, 504, 506 read with Section 149 of the

Indian Penal Code.

4. Offence punishable under Sections 302 and 307 of

the Indian Penal Code being exclusively triable by Court of

Sessions, this case was committed to Sessions Judge, Dhule.

The then Additional Sessions Judge, Dhule framed charge

(Exh.9) against accused Nos.1 to 5 for committing offences

punishable under Sections 147, 148, 307, read with Section

149 and Section 302 read with Section 34 of the Indian Penal

Code. When charge was read over and explained to the

accused, they pleaded not guilty and claimed trial.

5. Defence of the accused is that, prior to the date of

incident, accused No.5 Rekha was driven out from her

matrimonial house by informant and his family members.

Cri. Appeal No.420/2002 (( 6 ))

Therefore, on the date of incident, all accused went to the

house of informant to request the informant and his family

members to resume cohabitation of accused No.5 with her

husband Sanjay Nagmal. However, when they reached to the

house of informant, that time quarrel was going on in between

family members of the informant and during that fight,

deceased Mahendra sustained injuries. The accused got

frightened and started running away. However, they were

apprehended by villagers due to misunderstanding. In brief,

the defence of the accused is of denial.

6. After considering the oral and documentary

evidence placed on record, trial Court was pleased to convict

the accused Nos.1 to 5 for the offences punishable under

Sections 147, 148, 324 read with Section 149 of the Indian

Penal Code and sentenced them to suffer rigorous

imprisonment for one year under Section 147; rigorous

imprisonment for two years under Section 148 and rigorous

imprisonment for two years under Section 324 read with

Section 149 of the Indian Penal Code. Only accused No.1 was

convicted for commission of the offence punishable under

Section 304 Part II of the Indian Penal Code and he was

sentenced to suffer rigorous imprisonment for seven years

and to pay fine of Rs.500/-. The accused were acquitted of

Cri. Appeal No.420/2002 (( 7 ))

the offence punishable under Section 307 read with Section

149 of the Indian Penal Code. The substantive sentences

were to run concurrently.

7. Heard strenuous arguments of Shri B.R. Warma,

learned counsel for the appellant and Mrs. M.A. Deshpande,

learned A.P.P. for the respondent/ State.

8. Learned counsel for the appellants submits that,

the occurrence is divided in two parts. He points out that, the

first incident alleged to have occurred on Methi-Karle Road

when the informant Nanda (P.W.1) was taking his bullocks to

his field. Regarding this incident, he has drawn my attention

towards contradictory statements of Nanda (P.W.1) and eye

witness Machhindra Patil (P.W.7). He points out that, in the

spot panchanama (Exh.17) no signs of struggle are visible,

which falsifies the contention of these both witnesses.

9. Regarding the second part of the occurrence, which

alleged to have occurred in front of the house of informant

Nanda at village Anjanvihire, he took me through the oral

evidence of alleged eye witnesses Shanubai (P.W.2),

Prabhakar (P.W.3) and Ambar (P.W.4). He has drawn my

attention towards contradictions and omissions emerged in

Cri. Appeal No.420/2002 (( 8 ))

the testimony of these all eye witnesses.

10. Next limb of the argument of learned counsel for

the appellants is that, though defence has admitted seizure of

the wooden logs (Exh.18), which were alleged to be used as

weapon of the offence, those wooden logs were not seized

from the possession of accused persons but as per seizure

memo itself, those wooden logs were seized from Shri

Jagannath Khandu Mahire, who is not examined by the

prosecution. He points out that, as per recitals of the

panchanama, no blood stains were found on the seized

wooden logs. His next submission is that, even the seized

muddemal articles were not kept in sealed condition till its

examination by Chemical Analyser. Therefore, possibility of

tampering of muddemal cannot be ruled out. In the result,

the detection of human blood on one of the seized log, is not

sufficient to connect any accused with the assault to deceased

Mahendra or other prosecution witnesses.

11. Learned defence counsel submits that, in the arrest

panchanama of the accused, injuries are noted on the body of

accused No.1 and 2 and though accused were referred to

medical examination, their injury certificates are suppressed

by the prosecution. Therefore, non-explanation regarding

Cri. Appeal No.420/2002 (( 9 ))

injuries found on the body of accused persons is fatal to the

prosecution case.

12. Learned counsel for the appellants submits that,

possibility cannot be ruled out that when accused had gone to

the house of informant to compromise matrimonial dispute in

between accused No.5 and son of the informant, that time

scuffle arose in between both the parties and during that

scuffle, the deceased and other witnesses sustained injuries.

He submits that, the evidence is on record does not show as

to who inflicted fatal blow on the head of deceased Mahendra.

13. Learned A.P.P. for the State supports the judgment

passed by the trial Court on the ground that testimony of

informant (P.W.1) is fully corroborated by evidence of five eye

witnesses as well as by medical evidence. Her next

contention is that, the accused have admitted their presence

on the spot on the date and at the time of occurrence.

Accused have not filed any complaint to police station against

the informant and his family members regarding assault to

accused. Even accused have not taken defence of self

protection and, therefore, the injuries found on the body of

accused as per arrest panchanama, needs no explanation.

Cri. Appeal No.420/2002 (( 10 ))

14. Learned A.P.P. points out that, medical officer

P.W.5, who conducted post mortem examination of the dead

body of deceased Mahendra, has proved that the head injury

sustained by deceased was sufficient in ordinary course of the

nature to cause death. So also eye witnesses have made it

clear that only accused No.1 inflicted fatal wooden log blow on

the head of deceased Mahendra at the time of occurrence in

front of the house of informant. According to A.P.P., all the

accused being members of unlawful assembly, having

common object to kill Mahendra, all of them are liable with

the aid of Section 149 of the Indian Penal Code.

15. Learned A.P.P. has pointed out that, defence has

admitted the seizure panchanama of the weapon of the

offence - wooden logs. The C.A. Report Exh.57 shows that,

on one of the wooden log, human blood was detected.

However, no explanation has been furnished by any accused

regarding the human blood found on the seized wooden log.

Thus, the direct evidence of eye witnesses is also

corroborated by circumstantial evidence like seizure of blood

stained wooden log from the possession of accused and

detection of human blood on the clothes seized from the

person of accused at the time of their arrest.

Cri. Appeal No.420/2002 (( 11 ))

16. On perusal of oral and documentary evidence

placed on record, it has come to my notice that entire

prosecution case is based on direct evidence of five eye

witnesses including the informant Nanda (P.W.1) as well as

circumstantial evidence in the form of seizure of blood stained

clothes from the person of the accused at the time of their

arrest and seizure of blood stained wooden logs which were

alleged to be used by accused while committing the offence.

17. Initially, I proceed to consider the circumstantial

evidence placed on record by prosecution to ascertain whether

it is sufficient to connect the accused with the homicidal death

of Mahendra Nanda Nagmal and injuries sustained by P.W.1 to

P.W.3. At the stage of arguments, homicidal death of

deceased Mahendra is not disputed by the defence.

18. The important circumstantial evidence placed on

record by prosecution is the seizure of blood stained clothes

from accused Nos.1 to 3 at the time of their arrest. To prove

the arrest panchanama Exh.45, prosecution has examined

panch Gulabsing Sonawane (P.W.8). During examination-in-

chief, he has supported the preparation of arrest-cum-seizure

panchanama Exh.45. However, from his cross-examination, it

emerges that, the clothes alleged to be seized from accused

Cri. Appeal No.420/2002 (( 12 ))

Nos.1 to 3 were already in possession of police officer and

same clothes were shown to this witness at the time of

preparation of panchanama. It is important to note that, this

witness nowhere deposed that in his presence police kept

those clothes in packet and sealed it. This witness is

absolutely silent regarding the sealing of the seized clothes of

the accused. Even investigating officer Police Inspector Shri

S.V. Rajhans (P.W.9) most negligently deposed about

preparation of arrest-cum-seizure panchanama Exh.45. He

simply deposes regarding preparation of this panchanama

without uttering a word regarding the proper sealing of seized

articles. Thus, tampering of these seized clothes of the

accused cannot be ruled out. In the circumstances,

circumstantial evidence relied by prosecution in the form of

seizure of blood stained clothes from accused Nos.1 to 3 has

become useless piece of evidence.

19. Similarly, though defence has admitted seizure

panchanama of the wooden logs (Exh.18), this panchanama

itself indicates that, three wooden logs were seized from

Jagannath Khandu Mahire and not from the possession of

accused persons. It is most important to note that, seizure

panchanama Exh.18 nowhere recites that blood stains were

visible on any one of the seized wooden logs. Seizure memo

Cri. Appeal No.420/2002 (( 13 ))

itself shows that, the seized wooden logs were not kept in

sealed condition after wrapping in the paper envelope or

cotton bag. Thus, prosecution itself has brought on record

every possibility of tampering of this muddemal. In the

circumstances, though C.A. Report Exh.57 shows that human

blood was found on one of the three wooden logs, that

evidence has become absolutely useless evidence.

20. In addition to this, Jagannath Khandu Mahire, who

produced the wooden logs alleged to be used by accused, is

not examined by prosecution. Therefore, prosecution cannot

establish that the three wooden logs which were alleged to be

used by accused Nos.1 to 3 at the time of commission of the

offence were recovered by Shri Jagannath Mahire and same

were produced before the police. Climax is that, informant

Nanda (P.W.1) admits in his cross-examination that while

running away, accused threw the wooden logs on the spot as

well as on the roof of his house and same wooden logs were

produced by him before police and seized by the police. Thus,

otherwise also, seizure of the wooden logs from the

possession of the accused has become doubtful. It follows

that, identification of these wooden logs by eye witnesses at

the stage of evidence has become useless.

Cri. Appeal No.420/2002 (( 14 ))

21. Additional damaging blow to the circumstantial

evidence placed on record is that, prosecution has not taken

pains to examine the carrier of the muddemal articles

including sample of blood mixed earth, seized from the spot of

the incident. In the circumstances, considering the possibility

of tampering of seized muddemal, I have no hesitation to hold

that the circumstantial evidence placed on record in the form

of seizure of blood stained clothes from the accused and

seizure of blood stained wooden logs as well as seizure of

blood mixed earth sample from the spot of the incident has

become absolutely useless and deserves to be ignored.

22. As observed above, as per prosecution case, the

incident of assault occurred at two places. First incident of

assault to Nanda (P.W.1) alleged to have occurred on Methi-

Karle Road at about 11.30 a.m. when Nanda (P.W.1) was

proceeding by village road towards his field with his bullocks.

The place of second main incident of assault to other

witnesses including deceased Mahendra is in front of residence

of Nanda (P.W.1).

23. Regarding the first incident, prosecution has placed

reliance on testimony of Nanda (P.W.1) and eye witness

Machhindra Patil (P.W.7). According to Nanda (P.W.1), on

Cri. Appeal No.420/2002 (( 15 ))

1.10.1996, at about 11.00 a.m., when he was proceeding by

Methi-Karle Road, outside the village he met with accused

Nos.1 to 5 and that time, accused Nos.1 to 4 were armed with

sticks. According to this witness, those sticks were hidden

below the jackets of accused Nos.1 to 4. Accused Nos.1 to 4

suddenly started beating Nanda (P.W.1) by stick and accused

No.5 by hand. According to this witness, during this incident,

he sustained bleeding injury on his head, back, stomach and

leg and in the result, he became unconscious. This witness

claims that, his clothes were stained with blood and he was

rescued by Trimbak Hiraman Patil, Vishwas Tarachand Patil,

Shahana Jairam Patil and Machhindra Mansaram Patil (P.W.7).

His further contention is that, after regaining consciousness,

he went to police patil and Sarpanch, but did not find them

and after 15 to 20 minutes, when he went to his house, at

that time, only his son Niranjan was present at the house.

Thereafter Niranjan went to field to call the wife and sons of

this witness. After arrival of wife and sons of this witness, the

second incident of assault occurred in front of his house.

24. However, from his cross-examination, it emerges

that, his version regarding hiding of sticks inside the jacket by

accused, his claim regarding becoming unconscious and his

visit to Police Patil and Sarpanch as well as part played by

Cri. Appeal No.420/2002 (( 16 ))

accused No.5 is proved to be material omission. Even the

F.I.R. Exh.23 nowhere reflects that accused No.5 also

assaulted Nanda (P.W.1) on road. F.I.R. recites that, after

the first incident of assault, Nanda (P.W.1) followed the

accused persons who ran towards the house of Nanda. F.I.R.

does not indicate the presence of Machhindra Patil and other

witnesses on the spot where Nanda was assaulted on road.

Thus, oral testimony of Nanda (P.W.1) regarding the first

incident is totally in conflict with his own F.I.R. Exh.23.

25. Macchindra Patil (P.W.7) has brought on record

altogether different theory regarding assault to Nanda (P.W.1)

on Methi-Karle Road. According to Macchindra Patil (P.W.7),

in front of his house informant Nanda (P.W.1) was assaulted

by stick only by accused No.1 and 2. According to Macchindra

Patil (P.W.7), the accused No.3, 4 and 5 were merely standing

on that spot. This witness nowhere deposes regarding

wooden log in the hand of accused No.3 and 4 or any role

played by them in assault of Nanda (P.W.1). Thus, obviously,

the version of Nanda (P.W.1) and Macchindra Patil (P.W.7) is

in conflict with each other on material particulars. Even

version of Macchindra (P.W.7) that he and other villagers

rescued Nanda (P.W.1) from accused and asked Nanda and

accused to go to the house of Nanda and not to quarrel in the

Cri. Appeal No.420/2002 (( 17 ))

village, is proved as material improvement.

26. Though P.W.1 and P.W.7 claim that at the time of

first incident Nanda (P.W.1) sustained bleeding injury, the

spot panchanama Exh.17 does not show even a drop of blood

on the spot or any signs of struggle on the spot. Spot

panchanama (Exh.17) shows that the spot of first incident is

in front of houses of Shantaram Jairam Patil and Hiraman

Shivram Patil and not in front of house of Macchindra Patil as

claimed by P.W.7. Most damaging blow to the prosecution

case is regarding the first incident of assault to Nanda (P.W.1)

and his claim regarding sustaining bleeding injury, is that

Ambar (P.W.4) has admitted in his cross-examination that, he

had not seen any injury on the person of Nanda (P.W.1). As

per case of prosecution, after assault to Nanda (P.W.1) on

village road, he returned to his house and through his son

Niranjan, called his wife Shanubai (P.W.2), Prabhakar (P.W.3)

and deceased Mahindra from field and thereafter the second

incident of assault by accused occurred in front of residence of

Nanda (P.W.1), in which Mahendra sustained fatal injury.

However, as observed above, the important eye witness of

this second incident namely Ambar (P.W.4) has falsified the

version of Nanda (P.W.1) regarding sustaining bleeding injury

at the hands of accused at the time of first assault on road.

Cri. Appeal No.420/2002 (( 18 ))

27. The cumulative effect of above discussed

conflicting versions of Nanda (P.W.1) and Macchindra (P.W.7)

together with admission of Ambar (P.W.4) and spot

panchanama Exh.17 is that, the theory of prosecution

regarding the assault to Nanda (P.W.1) on road by accused, is

absolutely doubtful and not reliable. I hold that, prosecution

miserably failed to prove the first part of the incident i.e.

assault to Nanda (P.W.1) by accused on Methi-Karle Road.

28. Before turning towards analysis of direct evidence

regarding occurrence of the second part of the incident, I

must make it clear that Nanda (P.W.1) has admitted in his

cross-examination in para 4 that, there was no quarrel

between him and accused persons prior to the present

incident in respect of stay of his son Sanjay and daughter-in-

law namely Rekha i.e. accused No.5. If there was no dispute

in between these two families before the occurrence of

incident, then naturally there would be no motive to the

accused to assault the in-laws and brother-in-law of accused

No.5 which resulted into homicidal death of deceased

Mahendra. On the other hand, accused have contended that,

on the date and time of the incident, they had paid visit to the

house of informant Nanda (P.W.1) and Shanubai (P.W.2) only

Cri. Appeal No.420/2002 (( 19 ))

to reach accused No.5 to her matrimonial house at

Anjanvihire. In other words, when accused had gone to the

house of informant to settle and pacify the relationship in

between accused No.5 and her in-laws and her husband, in

natural course they would have no 'common object' to assault

and cause death of one of the family member of husband of

accused No.5 or to cause hurt to in-laws of accused No.5.

Thus, there is obviously lack of important ingredient of

unlawful assembly i.e. common object to use criminal force or

to commit offence within meaning of Section 141 of the Indian

Penal Code. Thus, only because accused No.1 to 5 went to

the house of Nanda (P.W.1), it can not be established that

they formed 'unlawful assembly'.

29. To prove the second incident of assault in front of

the house of informant (P.W.1), prosecution has placed

reliance on testimony of Nanda (P.W.1), his wife Shanubai

(P.W.2), son Prabhakar (P.W.3) and alleged eye witness

Ambar (P.W.4). No doubt, except Ambar (P.W.4) remaining

witnesses are close relatives of deceased Mahendra.

However, on that count alone, their testimony cannot be

disbelieved, if otherwise it is trustworthy.

30. Though Nanda (P.W.1) claims that on 1.10.1996,

Cri. Appeal No.420/2002 (( 20 ))

initially he was assaulted and injured by accused No.1 to 5 on

Methi-Karle Road and therefore, he went to his house and

directed his son Niranjan to call Shanubai (P.W.2), Prabhakar

(P.W.3) and deceased Mahendra from his agricultural land and

after their arrival to the house, accused No.1 to 5 assaulted

them including Nanda (P.W.1), the presence of this witness on

this spot is doubtful. The reason for this observation is that,

from para No.5 of the cross-examination of so called eye

witness Shanubai (P.W.2), it emerges that, Nanda (P.W.1)

came on the spot after the accused ran away from the place

of incident. Even third eye witness Prabhakar (P.W.3) has

admitted in para 4 of his cross-examination that, "villagers

rescued us and thereafter my father Nanda came from the

side of Grampanchayat". The most damaging blow to the

prosecution case is the testimony of so called independent eye

witness Ambar Suryawanshi (P.W.4), who has deposed in his

examination-in-chief that, "On the date of incident, at about

11.00 to 11.30 a.m., accused No.1 to 3 came to the house of

Nanda (P.W.1) and that time only third son of Nanda was

present in the house." According to Ambar (P.W.4), accused

asked the said son of Nanda to call his family members and

accordingly, within 5 to 10 minutes Shanubai (P.W.2), Sanjay

and deceased Mahendra reached on the spot and that time, on

account of exchange of words between Shanubai (P.W.2) and

Cri. Appeal No.420/2002 (( 21 ))

accused persons, the accused No.1 to 3 started beating

Shanubai and others. According to Ambar, after the

occurrence of assault to Mahendra and Shanubai, Nanda

(P.W.1) reached on the spot and he was assaulted by accused

No.1 and 2 by fist and kick blows. Ambar (P.W.4) has made it

clear that, he had not seen any injury on the person of Nanda

(P.W.1). Thus, genesis of the occurrence is not proved by

prosecution, but it is conveniently suppressed by prosecution.

31. In the circumstances, the version of Nanda (P.W.1)

that in his presence accused No.1 to 5 initially pelted stones

and thereafter accused No.1 and 2 entered inside the house

and dragged Shanubai (P.W.2) out of the house and all

accused started beating her by sticks, due to which he

became unconscious after sustaining bleeding injury and

thereafter accused No.1 inflicted stick blow on the head of

Mahendra, has become totally unreliable and not trustworthy.

In view of above given admissions of Shanubai (P.W.2) and

Prabhakar (P.W.3), the informant (P.W.1) was not present on

the spot when the incident occurred in front of house of

informant.

32. If the evidence of injured eye witnesses Shanubai

Nagmal (P.W.2) and her son Prabhakar (P.W.3) is considered

Cri. Appeal No.420/2002 (( 22 ))

together, it emerges that, they are contradicting each other

on every material particulars. Their statements are also in

conflict with their statements before the police on every

material particulars.

33. According to these both witnesses, on the date of

incident, they had been to their field along with the deceased

Mahendra. At about 12.00 to 12.30 Noon hours, Shri Niranjan

(son of informant) came to that field and informed that,

Nanda (P.W.1) was being beaten at the hands of accused.

According to Shanubai (P.W.2), Niranjan informed that

accused No.1 to 5 were beating Nanda. On the contrary,

according to Prabhakar (P.W.3), Niranjan told that accused

No.1 was beating Nanda. Thus, since inception these

witnesses have started contradicting each other. According to

Shanubai (P.W.2), when she reached to her house along with

her three sons, that time she saw that accused No.1 to 5 were

present in front of her house and accused No.1 was holding

axe, accused No.2 to 5 were holding sticks in their hands. To

the contrary, according to Prabhakar (P.W.3), only accused

No.1 to 3 were armed with sticks. According to Shanubai

(P.W.2), accused No.1 inflicted axe blow on her head and

other accused had beaten her by sticks. To the contrary,

Prabhakar deposes that, initially accused started pelting

Cri. Appeal No.420/2002 (( 23 ))

stones and that time accused No.1 Bhatu inflicted one stick

blow on the head of deceased Mahendra. According to this

witness, Shanubai was assaulted by all accused by sticks and

fists as well as kicks. He claims that, accused inflicted stick

blow on his head, but it landed on his shoulder and on the

back side of his thigh. Thus, obviously, these both witnesses

have contradicted each other on material particulars regarding

the actual occurrence and assault.

34. From the cross-examination of Shanubai (P.W.2)

and Prabhakar (P.W.3), it emerges that, the version of these

witnesses regarding the incident of assault narrated by them

is nothing but material improvement, since beginning till end.

On this count alone, these both witnesses have become totally

unreliable witnesses who have suppressed the true occurrence

from the Court.

35. The cat has come out of the bag when Ambar

Suryawanshi (P.W.4) stepped in the witness box. According

to Ambar (P.W.4), on the date of incident at about 11.30

a.m., when accused came to the house of Nanda (P.W.1), that

time except Niranjan, son of Nanda Nagmal no other family

member was present at the house. This statement falsifies

the version of Shanubai (P.W.2) and Prabhakar (P.W.3) that

Cri. Appeal No.420/2002 (( 24 ))

Niranjan informed them in the field that at that time accused

were beating Nanda (P.W.1).

36. The truth has come before the Court from the

further testimony of Ambar (P.W.4) who deposed that, as no

family members were present in the house except Niranjan,

accused No.1 to 5 asked Niranjan to call his family members

and, therefore, Niranjan went towards agricultural land where

the family members of Nanda were working. Within 5 to 10

minutes, Niranjan came back to his house along with

Shanubai (P.W.2) and her two sons, including Sanjay, son of

Nanda Nagmal. In fact, as per prosecution case and recitals

of the F.I.R., on the date of incident Sanjay was not present in

the village as he had already left house due to quarrel with

accused No.5. From the testimony of Ambar (P.W.4), it

further emerges that, thereafter there was exchange of words

in between Shanubai (P.W.2) and accused persons, which

further converted into alleged assault to Mahendra and

Shanubai by wooden logs at the hands of accused No.1. This

witness claims that, accused No.1 to 3 also assaulted

Shanubai and others. From his evidence, it also emerges

that, subsequently Nanda (P.W.1) came on the spot and he

was assaulted by accused No.1 and 2 by fist and kick blows.

Cri. Appeal No.420/2002 (( 25 ))

37. However, from the examination-in-chief of Ambar

(P.W.4), it becomes clear that, when Nanda (P.W.1) reached

on the spot, that time he did not find any injury on the body

of Nanda. This statement falsifies the statement of Shanubai

(P.W.2) and Prabhakar (P.W.3) that initially Nanda was

assaulted by accused persons and, therefore, Niranjan rushed

to agricultural land to inform Shanubai and her sons.

Regarding assault to Nanda (P.W.1) by fist and kick blows by

accused No.1 and 2, Nanda (P.W.1) the informant has

nowhere deposed in his evidence that in front of his house he

was beaten by accused No.1 and 2 by fist and kick blows.

Otherwise also, the version of Ambar (P.W.4) regarding

assault to Nanda (P.W.1) by the accused No.1 and 2 by fist

and kicks is proved as material improvement, which amounts

to contradiction. Thus, obviously Ambar (P.W.4) does not

appear to be fully reliable witness.

38. Though Ambar (P.W.4) posed himself as

independent witness, he has also conveniently suppressed the

genesis of the occurrence. From the arrest panchanama

Exh.45 of the accused persons, it emerges that, at the time of

arrest, injuries were found on the body of accused No.1 Bhatu

Motiram Pimpale and one sutured wound was found on the

forehead and two additional wounds were found on the both

Cri. Appeal No.420/2002 (( 26 ))

hands of accused No.2 Kautik Motiram Pimpale. Even

investigating officer (P.W.9) has admitted in his cross-

examination that accused No.1 and 2 were having injuries on

their person and they were referred to Cottage Hospital for

medical examination with forwarding letter Exh.47. He also

admits that, he has not received medical examination

certificates of these accused persons. Thus, obviously the

injuries found on the body of accused persons are

conveniently suppressed by the prosecution. Including Ambar

(P.W.4), none of the prosecution witness has taken pains to

explain how at the time of occurrence accused No.1 and 2

sustained injuries.

39. The Hon'ble Apex Court, in Laxmisingh and

others Vs. State of Bihar reported in (AIR 1976 SC 2263) ,

observed that, the non-explanation of injuries sustained by

accused at about time of the occurrence or in the course of

altercation is a very important circumstance from which the

Court can draw following inferences :

(i) That, the prosecution has suppressed the genesis and

origin of the occurrence and has not presented the

true version.

(ii) That, the witnesses who have denied the presence of

the injuries on the person of the accused are lying on

Cri. Appeal No.420/2002 (( 27 ))

a most material point and, therefore, their evidence is

unreliable.

(iii) That, in case there is a defence version which explains

injury on the person of the accused, it is rendered

probable so as to throw doubt on the prosecution

case.

40. Thus, including Ambar (P.W.4), Shanubai (P.W.2),

Prabhakar (P.W.3) and Nanda (P.W.1), who have kept total

silence regarding the injuries found on the person of the

accused, have suppressed the true genesis of the occurrence

and they are not trustworthy witnesses. The Hon'ble Apex

Court, in Bhagwan Sahai & anr. Vs. State of Rajasthan

reported in (AIR 2016 SC 2714) , ruled that when the Court

came to a finding that the prosecution has suppressed the

genesis and origin of the occurrence and also failed to explain

the injuries on the person of the accused, the only possible

and probable course left open was to grant benefit of doubt to

the accused.

41. From the cross-examination of Shanubai (P.W.2)

and Prabhakar (P.W.3), it has come on record that, about 40

to 50 persons from the village gathered on the spot at the

time of occurrence of the incident. However, prosecution has

Cri. Appeal No.420/2002 (( 28 ))

not taken pains to examine some independent eye witnesses

to establish the true occurrence. Another material lacuna in

the prosecution case is that, Niranjan Nanda Nagmal is the

star witness who was present in the house since inception till

end of the occurrence. This witness had taken active part

during the entire occurrence and he met with the accused

No.1 to 5 when on the date of occurrence at about 11.30 a.m.

they reached to the house of informant. However, without

assigning any reason, prosecution has conveniently

suppressed this material witness. Therefore, adverse

inference is to be drawn against the prosecution that it has

withheld the true occurrence from the Court.

42. On the other hand, defence of the accused is that,

few days before the occurrence, accused No.5, who is

daughter-in-law of Nanda (P.W.1) and Shanubai (P.W.2), was

driven out from her matrimonial home as the family members

of Nanda (P.W.1) doubted the character of accused No.5.

Though prosecution witnesses have denied these suggestions,

the F.I.R. Exh.23 recites that, accused No.5 Rekha was of bad

character and on that count, quarrel arose in between Rekha

and her husband Sanjay. 8 days before the incident, on

account of this quarrel, Sanjay left his house and thereafter

even Rekha left her matrimonial home and went to her

Cri. Appeal No.420/2002 (( 29 ))

maternal home at Karle. In view of these recitals in F.I.R.,

the contention of defence is most probable that, to pacify the

matrimonial dispute of accused No.5 Rekha with her husband

and other family members, the accused No.1 to 4 took Rekha

to the house of informant Nanda (P.W.1), on the date of

incident.

43. From the testimony of Ambar (P.W.4), it has

become clear that, after arrival of Shanubai and her sons on

the spot of incident, initially there was exchange of words in

between Shanubai (P.W.2) and the accused persons, which

turned into fight. From the cross-examination of Prabhakar

(P.W.3), it has come on record that, at the time of occurrence

there was fight in between accused persons and in-laws of

accused No.5. Even from the cross-examination of

Machhindra Patil (P.W.7), it emerges that, when he went to

the house of Nanda (P.W.1), he saw that, scuffle was going on

between sons of Nanda (P.W.1) on one hand and accused

persons on the other hand, and even Shanubai was in the

same scuffle.

44. Thus, probability cannot be ruled out that at the

time of free fight in between members of these two families,

Mahendra Nagmal would have sustained fatal injury on his

Cri. Appeal No.420/2002 (( 30 ))

head. Though accused have not specifically taken defence of

self protection, probability cannot be ruled out that accused

would have exercised their right of private of defence at the

time scuffle with the family members of informant. In Sharad

Birdhichand Sarda Vs. State of Maharashtra reported in

AIR 1984 SC 1622, Apex Court ruled that, it is well settled

that, whereon evidence two possibilities are available or open,

one which goes in favour of the prosecution and other which

benefits an accused, the accused is undoubtedly entitled to

the benefit of doubt.

45. Thus, considering the non-explanation given by

prosecution about injuries found on the body of accused,

suppression of genesis of the occurrence as well as non-

examination of material witnesses and the probability of

availing right of self defence by accused at the time of free

fight, benefit of doubt deserves to be given to the accused

persons.

46. In view of above discussion, I hold that, learned

trial Court failed to consider the above discussed important

aspect of this case and erroneously convicted accused No.1 to

5 for the offence punishable under Sections 147, 148, 324

read with Section 149 of the Indian Penal Code and

Cri. Appeal No.420/2002 (( 31 ))

erroneously convicted accused No.1 for the offence punishable

under Section 304 Part II of the Indian Penal Code. The

judgment and order of conviction passed by Additional

Sessions Judge, Dhule in Sessions Case No.46/1997 deserves

to be set aside by allowing this appeal.

47. Hence, I pass the following order :

ORDER

(I) Criminal Appeal No.420/2002 is allowed.

(II) Judgment and order of conviction dated 4.7.2002, of

accused No.1 to 5 for the offence punishable under

Sections 147, 148, 324 read with Section 149 of the

Indian Penal Code, and of the accused No.1 for the

offence punishable under Section 304 Part II of the

Indian Penal Code, passed by Additional Sessions

Judge, Dhule in Sessions Case No.46/1997 is set

aside.

(III) Accused Nos.1 to 5 are acquitted of the offence

punishable under Sections 147, 148, 324 read with

Section 149 and under Section 304 Part II of the

Indian Penal Code.

(IV) Bail bonds and surety bonds of accused Nos.1 to 5

Cri. Appeal No.420/2002 (( 32 ))

shall stand cancelled. Accused Nos.1 to 5 be set at

liberty forthwith if not required in any other case.

(V) Fine amount, if any, deposited by accused Nos.1 to

5, be refunded to them after the period of appeal is

over.

(VI) Accused Nos.1 to 5 shall execute before the trial

Court bail bonds with sureties for the amount of

Rs.15,000/- (Rupees fifteen thousand) each to appear

before the Supreme Court as and when notices are

issued to them in respect of any proceedings filed

against this judgment, vide Section 437-A of the Code

of Criminal Procedure, and the said bail bonds shall

remain in force for a period of six months from today.

( SUNIL K. KOTWAL ) JUDGE

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