The State Of Maharashtra vs Govind Narhari & Ors
2017 Latest Caselaw 4369 Bom

                                      1        Appeal 401 of 2000

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                        Criminal Appeal No.401 of 2000

     *       State of Maharashtra
             Through Police Station Officer,
             Police Station, Ambajogai,
             District Beed.                         ..    Appellant.

                      Versus

     1)      Govind s/o Narhari Aghav,
             Age 45 years,
             Occupation : Agriculture,
             R/o Dounapur,
             Taluka Ambajogai, Dist. Beed.

     2)      Sudam s/o Narhari Aghav,
             Age 30 years,
             Occupation : Agriculture
             R/o Dounapur, Tq. Ambajogai.

     3)      Shridhar s/o Narhari Aghav,
             Age 35 years,
             Occupation : Agriculture
             R/o As above.

     4)      Narhari s/o Patloba Aghav,
             Age 70 years,
             Occupation: Agriculture
             R/o As above.

     5)      Pandurang s/o Vithal Andhale,
             Age 35 years,
             Occupation: Agriculture,
             R/o as above.

     6)      Smita Govind Aghav,
             Age 22 years,
             Occupation: Agriculture,
             R/o as above.




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                                           2          Appeal 401 of 2000

     7)      Satwashila Pandurang Andhale,
             Age 30 years,
             Occupation: Agriculture & Household
             R/o As above.

     8)      Harishchandra s/o Narhari Aghav,
             Age 43 years,Occu: Agriculture,
             R/o as above.                   .. Respondents.

                                ----
     Shri. S.D. Ghayal, Additional Public Prosecutor, for
     appellant.

     Shri. G.A. Kulkarni, Advocate, holding for Shri. R.S.
     Deshmukh, Advocate, for respondent Nos.1 to 8.
                                 ----

                                    Coram:    T.V. NALAWADE &
                                              SUNIL K. KOTWAL, JJ.

                                   Date   :   12 July 2017
     JUDGMENT:

1) The appeal is filed by the State to challenge the

judgment and order of acquittal delivered by the learned

2nd Additional Sessions Judge Ambejogai in Sessions Case

No.32/1995. Both the sides are heard.

2) The respondents were charge-sheeted for

offences punishable under sections 302, 147, 148, 149 of

the Indian Penal Code for commission of murder of one

Eknath. On 10-11-1994 two incidents had taken place. The

first incident took place at 7.00 p.m. and the second

3 Appeal 401 of 2000

incident took place at 7.45 p.m. In the first incident some

prosecution witnesses were assaulted by the accused but

charge was framed only for offence of murder of Eknath

and so the material given by the prosecution for this

offence only needs to be considered.

3) The star witness for the prosecution was Vishnu

Kokare (PW 7) who had allegedly witnessed the incident.

He has given evidence that at the relevant time he was

proceeding to his filed and he was required to go through

the field of one Manohar Aaghav. He has deposed that

when he heard some noise he paid attention towards that

side in the field of Manohar Aaghav and in the light of

torch which he was having he noticed that the accused

persons were giving beating to Eknath. He has deposed

that all the accused were present on the spot though

Harishchandra, Shridhar, Sudam and Govind were

actually assaulting Eknath. His evidence shows that he

wanted to say that accused could not see him and when he

felt that there was danger to his life he left the spot. He

has deposed that on that date i.e. 10-11-1994 he slept in

his field to which he was proceeding on that night.

                                          4        Appeal 401 of 2000

     4)               Evidence of Vishnu (PW 7) shows that on the

next day he learnt from his brother that murder of Eknath

was committed in Khari field. He has deposed that he got

frightened and he kept mum. He has deposed that he

attended the funeral of the dead body of Eknath which

took place on the next day of the incident at abut 7.00

p.m. The evidence of Vishnu in the cross examination and

the record show that his statement came to be recorded

by police on 14-11-1994. His evidence shows that he did

not approach police and he is trying to say that somebody

must have told police that he witnessed the incident.

The evidence shows that he had not disclosed the incident

to anybody including to his close relatives with whom he

had talk about the quarrel which had taken place between

the accused and the complainant side on that day. In the

cross examination it is brought on record that he tried to

improve the version given to police materially.

5) The evidence of Vishnu (PW 7) has no support

of medical evidence. Dr. Godbole (PW 12) had conducted

the autopsy on the dead body on 11-11-1994 between 4.15

p.m. and 5.30 p.m. He noticed following surface wounds

5 Appeal 401 of 2000

on the dead body:

(i) Abrasion over left forearm, middle 1/3rd laterally 5 x 1 cm. reddish

(ii) Abrasion over left forearm lower 1/4 laterally 5 x 1 cm reddish.

(iii) Abrasion over right knee, anteriorly 2 x 1 cm reddish

(iv) A curved scratch abrasion over top of left shoulder ball, concavity facing anteriorly 1.25 x 0.1 cm reddish.

When the doctor handed over the post mortem report to

police he had not given opinion regarding cause of death

and he had preserved the organs for histopathology. After

receipt of report of the histopathology he gave opinion as

to cause of death as cerebral and pulmonary oedema. In

the Court he tried to say that thymus was enlarged and

this was abnormality. He tried to say that due to such

abnormality if some injuries like which were found on the

dead body are caused, death can take place. The injuries

are already mentioned and the doctor had admitted in the

cross examination that such injuries can be sustained in

simple fall. From the nature of injuries already described

it is difficult to believe that so many persons had assaulted

and due to that such injuries were caused. The age of the

deceased was hardly 25 years. No record is produced to

6 Appeal 401 of 2000

show that this abnormality was treated in the past and

there was some medical advice in respect of the

abnormality. First time in the court the doctor gave

opinion of aforesaid nature.

6) The medical opinion is not consistent with the

direct evidence given by the so called eye witness.

Further, the delay caused in approaching police by the so

called eye witness is not at all explained. There was

dispute between two sides and so there was motive for

false implication also. There was no other circumstantial

evidence to show involvement of all accused in the alleged

incident. In view of these circumstances it is not possible

to interfere in the decision of the trial court in which the

accused persons are acquitted. The view taken is a clear

possible view and there is clear probability that it was not

a homicidal death. In the result, the appeal stands

dismissed.

                   Sd/-                              Sd/-
     (SUNIL K. KOTWAL, J.)                   (T.V. NALAWADE, J.)

     rsl