Vishnu Maroti Deokar (In Jail) vs State Of Maharashtra, Through Pso ...
2017 Latest Caselaw 1 Bom

                                       1               APEAL482-15.odt          



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH : NAGPUR

                       CRIMINAL APPEAL NO.482/2015
                                    ...

Vishnu Maroti Deokar, Aged about 24 years, R/o Waghadei Jamb, Tq. and District Yavatmal.

(At present in Central Jail at
Yavatmal)                                     ..             APPELLANT


                               .. Versus ..


State of Maharashtra,
through Police Station Officer,
Yavatmal (Rural).                             ..            RESPONDENT



None for the Appellant.

Mr. J.Y. Ghurde, Additional Public Prosecutor for Respondent.

....

CORAM : B.R. Gavai & Kum. Indira Jain JJ.

DATED : February 27, 2017.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Being aggrieved by the judgment and order passed by

the learned Sessions Judge, Yavatmal in Sessions Trial No.67 of

2014 dated 23.03.2015 thereby convicting the appellant for the

offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay fine of

Rs.500/- and in default of payment of fine to suffer rigorous

2 APEAL482-15.odt

imprisonment for 3 months, the appellant has approached this

Court.

2. The prosecution story as could be gathered from the

material placed on record in nutshell is thus:-

An oral report came to be lodged on 5.11.2013 by PW1

Deorao Maroti Tumram that on the day of incident he had gone for

grazing cattle. At around 5 p.m., he came back to his residence. At

that time, PW6 Laxman Narayan Gadekar came to his house and

informed that the accused Vishnu and Datta were beating his son-

in-law. On being informed, he went there and saw that his son-in-

law- the deceased was being beaten. The incident had taken place

in the sitting place of Durgadevi. The deceased was brought to the

Government Hospital at Yavatmal. However, he succumbed to the

injuries at around 6.30 p.m. On the basis of the oral report below

Exh.11, the first information report came to be registered below

Exh.12. ON the basis of the FIR, the investigation was set into

motion. At the conclusion of the investigation, a charge-sheet

came to be filed in the Court of the learned Judicial Magistrate First

Class, Yavatmal. Since the case was exclusively triable by the

learned Sessions Judge, it came to be committed to the Sessions

Court.

3. The learned trial Judge framed the charge for the offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code against the accused no.1 Vishnu and accused No.2

3 APEAL482-15.odt

Datta. The accused pleaded not guilty and claimed to be tried. At

the conclusion of the trial, the learned trial Judge passed the order

of conviction as aforesaid insofar as the present appellant/accused

no.1 is concerned, however, acquitted the accused no.2 Datta for

the charges charged with. Being aggrieved thereby, the present

appeal.

4. None for the appellant. With the assistance of the

learned Additional Public Prosecutor, we have scrutinised the entire

evidence on the record.

5. The prosecution case mainly rests on the evidence of

PW6 Laxman Narayan Gadekar and PW7 Bebibai Mahadeo Pendor.

Insofar as PW1 Deorao- first informant is concerned, he is not an

eyewitness and his evidence is hearsay evidence.

6. PW6 Laxman in his evidence states that on the day of

incident he along with the deceased Mahadeo, Ramdas Gadekar

and Purushottam Kasarkar were playing cards in the sitting place of

Durgadevi. At around 5 p.m., Vishnu Deokar came from back side

and he gave two blows of axe on the head of Mahadeo. Mahadeo

then fell down. He thereafter gave call to the father-in-law of

Mahadeo. Thereupon people gathered there and Mahadeo was

taken to the hospital. After sometime he died. The perusal of the

cross-examination would reveal that he has admitted that the

4 APEAL482-15.odt

Police inquired with him about the incident after about 5-6 days. A

specific suggestion is given to him that there is a political rivalry in

the village and the deceased and the said witness were belonging

to one group whereas the accused was belonging to another group.

7. PW7 Bebibai states in her evidence that on the date of

the incident, she was proceeding towards the shop of Shantabai

Mantute for purchasing Nariyal. She found that Vishnu was giving

blow with axe to Mahadeo. She further states that she ran away

from the place on seeing that the accused was giving the blow with

the axe. A suggestion is given to this witness that she was

deposing falsely at the instance of Lata, the wife of the deceased.

The perusal of her cross-examination would reveal that the witness

herself volunteers that she went to the spot after the accused

persons had run away and when other persons gathered there. It

could thus be clearly seen that she cannot be said to be an

eyewitness.

8. The perusal of the record would reveal that the

statement of PW7 Bebibai is recorded on 10.11.2013 i.e. after a

period of 5 days. Insofar as PW6 Laxman is concerned, his

statement is recorded on 12.11.2013. No doubt that mere

recording of the statements of witnesses belatedly cannot be fatal

to the prosecution case. However, the investigating agency must

give explanation for belated recording of the statements. No such

5 APEAL482-15.odt

explanation has been given by the Investigating officer i.e. PW11

Dinkar Thosare. It will be relevant to refer to his following

admission in his cross-examination:-

"It is correct that house of Gayabai Raut, Dnyaneshwar Kasalkar, Laxman Mantute were adjacent to the spot. It is not necessary that as they are adjacent resident they may be knowing about incident. I have not recorded the statement of aforesaid three persons. I have not enquired with them. There is no reason for not making enquiry with them."

It could thus be seen that though the independent witnesses who

are residing adjacent to the spot of the occurrence were very much

available, for the reasons best known to the investigating agency,

their statements have not been recorded. Insofar as PW6 and PW7

are concerned, specific suggestions are given to them that on

account of political rivalry they are deposing falsely. The

inordinate delay in recording their statements is not at all

explained.

9. It could further be seen that the alleged recovery of axe

on memorandum under Section 27 of the Indian Evidence Act

cannot be said to be free from doubt. The blood found on the

clothes of the accused is of "AB" group which is not the group of

the deceased.

10. In that view of the matter, we are of the considered view

that it cannot be said that the prosecution has proved the case

beyond reasonable doubt. We find that the accused is entitled to

6 APEAL482-15.odt

benefit of doubt.

11. The criminal appeal is allowed. The appellant/accused is

acquitted of the offence charged with. He be set at liberty

forthwith, if not required in any other case. The amount of fine, if

any, paid by the appellant be refunded to him.

      (Kum. Indira Jain, J. )              (B.R. Gavai, J.)
                                     ...


halwai/p.s.