Bombay High Court
The State Of Maharashtra vs Vyankati Janardhan Dhakne & Ors on 19 July, 2017
Bench: S.S. Shinde
361.2001 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.361 OF 2001
The State of Maharashtra APPELLANT
[Orig. Complainant]
VERSUS
1. Vyankati s/o.Janardhan Dhakne,
Age 35 yrs., Occu. Agri.
R/o.Aswal Amba, Tq. Parli
Vaijinath, Dist. Beed.
2. Bankati Janardhan Dhakne,
Age 30 yrs., Occu. & r/o. as above.
3. Maroti Rama Gutthe,
Age 27 yrs., Occu. & r/o. as above.
4. Janardhan Hariba Dhakne,
Age 60 yrs., Occu. & r/o. as above.
5. Parwatibai @ Nanagabai w/o.
Vyankati Dhakne, age 30 yrs.,
Occu. & r/o. as above.
6. Kausabai w/o. Bankati Dhakne,
Age 25 yrs., Occu.
& r/o. as above. RESPONDENTS
[Ori. accused]
...
Mr.S.J.Salgare, APP for Appellant - State
Mr.S.S.Jadhavar, APP for Respondent Nos.1 to
6 - accused.
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 06.07.2017
Pronounced on : 19.07.2017
361.2001 Cri.Appeal.odt
JUDGMENT: (Per S.S.Shinde, J.):
1. This Appeal is filed by the
appellant-State, challenging the judgment and
order of acquittal passed by the Additional
Sessions Judge, Ambajogai, dated 18th June,
2001 in Sessions Case No.98/1999.
2. The prosecution case in nutshell is
as under:
one Gawalanbai Hanumant Dhakne
[PW-3], the informant, married with Hanumant
Dhakne [deceased]. The deceased Hanumant was
residing at village Aswal-Amba. The parents
of Gawalanbai [PW-3], the informant, are
residing at village Mandekhel. The land of
deceased Hanumant is within the revenue
boundaries of village Aswal-Amba. The said
land is towards the side of village
Mandekhel. Hence, the Hanumant [deceased] and
the informant Gawalanbai started residing at
361.2001 Cri.Appeal.odt
village Mandekhel since 1989. The brothers of
deceased Hanumant viz. Ramkishan and Vithal
[PW-1] are residing in their field at Aswal-
Amba. The land of brother of Gawalanbai
[PW-3] viz. Angad [PW-7] is within the limits
of village Aswal-Amba. The Gat number of the
said land is 31. The land of Angad [PW-7]
and land of the deceased Hanumant were
jointly cultivated by them. The land Gat No.
31 was purchased by Angad [PW-7] from
Vishwanath Ranba Wahule of village Mandekhel
on 9th June, 1998. The deceased Hanumant has
taken part in the said transaction and helped
Angad [PW-7] for purchasing the said land.
3. Janardhan Hariba Dhakne i.e. accused
no.4 was to purchase the said land bearing
Gat No.31. However, as the deceased Hanumant
has taken leading part for purchasing the
said land by Angad [PW-7], the accused no.4
Janardhan and his sons were giving threat of
361.2001 Cri.Appeal.odt
killing to the deceased Hanumant. Accused no.
4 Janardhan, accused no.1 Vyankati and
accused no.2 Bankati were always asking
deceased Hanumant to sell the said land [from
Gat No.31] to them, otherwise they threatened
to kill him. However, the deceased Hanumant
and Angad [PW-7], were not ready to sell the
said land to the accused. Hence, the accused
were having grudge against the deceased
Hanumant.
4. On 23th July, 1999, the informant
Gawalanbai [PW-3], her husband Hanumant
[deceased] and her brother Angad [PW-7] went
to the said land bearing Gat No.31 along with
bullocks and agricultural implements. Angad
[PW-7] asked Hanumant [deceased] to do the
agricultural operation in the field and that
he will bring seed from the Parli. At about
10.00 a.m. Angad [PW-7] left the field. The
Hanumant [deceased] was doing the
361.2001 Cri.Appeal.odt
agricultural operation in the field.
Gawalanbai [PW-3] was collecting the grass in
the field.
5. It is the prosecution case that at
about 11.00 a.m., Vyankat Janardhan Dhakne,
the accused no.1 and Bankati Janardhan
Dhakne, the accused no.2 came to the said
field Gat No.31. They asked Hanumant
[deceased] that why he is doing the
agricultural operations in the said field as
they asked him to give the land to them.
Accused nos.1 and 2 started giving abuses to
Hanumant, the deceased. Then exchange of
words was going on between them. The
informant Gawalanbai tried to intervene by
saying not to give abuses. At that time,
Janardhan Hariba Dhakne [accused no.4],
Maroti Rama Gutthe [accused no.3], Kausabai
Bankati Dhakne [accused no.6] and Parwatibai
alias Nanagabai Vyankati Dhakne [accused no.
361.2001 Cri.Appeal.odt
5] came running there. Janardhan, the accused
no.4 was having stick in his hand. Vyankati,
the accused no.1 and Bankati, the accused no.
2 were having axe in their hands. Janardhan,
the accused no.4 asked other accused to kill
Hanumant, the deceased. Then Vyankati, the
accused no.1 and Bankati, the accused no.2
beat Hanumant, the deceased by means of sharp
edge of axe on his head and right leg.
Janardhan, accused no.3 beat by means of a
part of agricultural implement viz. 'Rumne'.
Though the accused beat Hanumant severely,
informant Gawalanbai tried to intervene by
saying not to beat and also made hue and cry.
Accused no.6 Kausabai and accused no.5
Parwatibai beat informant Gawalanbai and her
husband Hanumant by means of kicks and fist
blows.
6. Because of beating Hanumant became
unconscious. His left leg was fractured. By
361.2001 Cri.Appeal.odt
that time, Ankush Shripati Palvade, Bibhishan
[PW-4] and Rajabhau [PW-5] were coming
towards the said field Gat No.31. By seeing
them and as Hanumant became unconscious, the
assailants ran away.
7. Hanumant was carried to Ambajogai by
informant Gawalanbai and her brother and son
of her brother at Ambajogai. They went to
Ambajogai Police Station. By taking Yadi from
the Police, Hanumant was carried to S.R.T.R.
Medical College and Hospital, Ambajogai. He
was admitted in the Hospital. On 24th July,
1999, at 3.00 a.m., Hanumant died in the
Hospital. Gawalanbai the informant went to
the Police Station and lodged the First
Information Report [in short 'FIR'] against
the accused persons. On the basis of the said
FIR, crime was registered as Crime No.
203/1999 for the offence punishable under
Sections 147, 148, 149, 447 and 302 of the
361.2001 Cri.Appeal.odt
Indian Penal Code. During investigation,
inquest panchnama and spot panchnama were
recorded. The statements of witnesses were
recorded. The accused persons were arrested.
The dead body was sent for postmortem. The
postmortem report was collected. The stick
and axe were discovered at the instance of
the accused. The seized articles and clothes
of the deceased were sent to C.A. Viscera and
blood sample were sent to C.A. After analysis
by the C.A. certificates were collected by
his office. After completion of an
investigation, charge-sheet was filed against
the accused persons for the offences
punishable under Section 302, 147, 148, 149,
447 of the IPC in the court of the Judicial
Magistrate First Class, Ambajogai.
8. The learned Magistrate committed the
case to the Court of Sessions as the offence
under Section 302 of the IPC is exclusively
triable by the Court of Sessions.
361.2001 Cri.Appeal.odt
9. In Sessions Case, the trial Court
framed the charge against the accused persons
for the offence punishable under Section 147,
148, 149 with 302 and 302 r/w. 34 of the IPC.
The charge was read over and explained to the
accused persons in vernacular. The accused
persons pleaded not guilty and claimed to be
tried. The defence of the accused persons was
of total denial.
10. After full-fledged trial, the trial
Court acquitted the appellants - accused for
the offence punishable under Sections 147,
148, 149 with 302 of the IPC and 302 r/w. 34
of the IPC. Therefore, this appeal against
acquittal.
11. The learned counsel appearing for
the appellant-State submits that the findings
recorded by the trial Court are not in
consonance with the evidence brought on
record. There are two eye witnesses to the
361.2001 Cri.Appeal.odt
alleged incident. The trial Court has not
properly considered the evidence of the two
eye witnesses as well as the medical
evidence. Therefore, he submits that the
appeal may be allowed.
12. On the other hand, the learned
counsel appearing for the respondents-
accused invites our attention to the findings
recorded by the trial Court, and submits that
those are in consonance with the evidence
brought on record. He also invites our
attention to the contradictions, omissions
and improvements from the evidence of the
prosecution witnesses. It is submitted that
PW-4, Bibhshan Palwade, has stated in his
deposition that when he reached to the spot
of incident, the deceased informed him that
he was beaten by the accused persons.
However, the informant has stated in the FIR
that the deceased had became unconscious
361.2001 Cri.Appeal.odt
immediately after attack on him. PW-4,
Bibhishan, had reached the spot of incident
when he was reported about the said incident
by PW-6 Dipak, who rushed from the spot of
incident to the house of PW-4 Bibhishan,
seeking his aid. Considering time which would
have been required for PW-6 Dipak to reach
the house of PW-4 Bibhishan and the time
which would have been required for PW-4
Bibhishan to arrive at the spot of incident,
the deposition either of respondent no.3 or
of respondent no.4 is absolutely false
regarding consciousness of the deceased.
13. It is further submitted that PW-7,
Angad, brother of informant, has admitted
that the deceased was engaged in many land
transactions, which would indicate that the
deceased was engaged in money lending
business. PW-8 Shankar Gore and PW-9 Dipak
Surwase did not support the prosecution case.
361.2001 Cri.Appeal.odt
Therefore, he submits that the appeal may be
dismissed.
14. We have given careful consideration
to the submissions of the learned APP
appearing for the appellant-State, and the
learned counsel appearing for the
respondents-accused. With their able
assistance, perused the evidence of the
prosecution witnesses as well as the medical
evidence, and also the findings recorded by
the trial Court. The prosecution examined
Dr.Satyanarayan Kistayya Goli as PW-11, who
was working as Associate Professor in the
Forensic Department of Medical College,
Ambajogai, so as prove that the death of
Hanumant was homicidal. In his deposition, he
stated that on 24th July, 1999, he received
the dead body of Hanumant Nivrutti Dhakne.
On the very same day, since 12.40 p.m. to
1.40 p.m. he performed the postmortem, and
361.2001 Cri.Appeal.odt
noticed the following injuries on the dead
body:
1. Stitched wound over parietal region
Rt.side 2½" long with under scalp
contusion, reddish-bluish.
2. Abraded contusion over forehead, Rt.
side, 2"x ½" reddish-dried.
3. Swelling with abrasion over Rt. hand
dorsum extending to Rt. wrist, 3" x
½", reddish dried [fracture 3rd x 5th
metacarpals seen].
4. Swelling with abrasion over Lt. hand
dorsum, 3"x1", reddish dried.
5. Abrasion over Lt. hand thumb
[dorsum] 1" x ½" with C.L.W. over
thumb pulp 1½" x 1/8", reddish.
6. C.L.W. over Lt. shin, lower 1/3rd, 1
½" x 1/8", margins irregular and
bloodstained, with fracture
tibia fibula, comminuted with
haematoma [underneath]
7. C.L.W. over Rt. calf region, lateral
aspect lower 1/3, 1" x 1/4", margins
361.2001 Cri.Appeal.odt
irregular, with fracture fibula,
lower 1/3rd, comminuted.
8. Abrasion over Rt. knee joint,
anterior aspect, 1" x ½", reddish-
dried [fracture lateral condyle with
joint effusion].
9. Abrasion over Lt. knee joint,
anterior aspect, 2" x ½", reddish
dried.
10. Abrasion over back, Lt. side,
subscapular region, and scapular
region, 2" x 1" and 2" x ¾"
respectively, reddish dried.
11. Evidence of drainage fuses over Rt.
ICD-6th inter costly space and Ltd.
ICD 6th ICS.
All above injures were ante mortem.
15. On internal examination of head, he
noticed contusion under the scalp over right
parietal region, 3"x2", reddish-bluish. The
brain showed contusion over left parietal and
temporal region, 3" x ½" x 1/8", reddish with
361.2001 Cri.Appeal.odt
central necrosis. On internal examination of
thorax, he noticed fracture of ribs No.2, 3,
4, 5 left side and no.2 on right side Right
lung showed collapse of upper lobe, left lung
and left lower lobe showed contusion 1" x ½"
reddish.
16. He further stated that the cause of
death was head injury in the form of brain
contusion, associated with fracture tibia-
fibula [Lt.], fracture fibula [Rt.], fracture
ribis Lt. fracture fibula [Rt.], fracture
ribs [Lt.side], fracture metacarpals [Rt.
side], injury to right knee. He stated that
Viscera was preserved for chemical analysis,
however, the result of chemical analysis is
received, and the same is negative. He stated
that all the injuries are possible by hard
and blunt object. The afore-mentioned
injuries are also possible by an axe [article
no.9], if hit by blunt end. He further stated
361.2001 Cri.Appeal.odt
that the injuries are also possible by
article no.4 and 8 before the Court.
During his cross examination, he
stated that injury no.1 mentioned in column
no.17 of P.M. notes [Exh.68] along with
corresponding internal injury to brain is the
main cause of death. He specifically stated
that no injury was found on the dead body
caused by sharp edge of the axe. Injury
no.1 shown in column no.17 of Exh.68 is
possible because of fall from the bullock
cart in case of accident. However, he denied
suggestion that injury no.1 is possible only
by fall. He further stated that injury
mentioned in column no.20 of P.M. notes
Exh.68 as fracture to ribs is possible by
means of violent external cardiac massage.
He further stated that there is no external
injury over chest corresponding to injury of
fracture of ribs, there are injuries on back
361.2001 Cri.Appeal.odt
and possibility of those injuries as
corresponding injuries to fracture of ribs
cannot be ruled out. Injury nos.2 to 11
except injury no.6 mentioned in column no.17
of P.M. notes [Exh.68] are possible in a
bullock cart accident. However, he
voluntarily stated that injury no.11 in
column no.17 is surgical injury. He also
denied suggestion that injury no.6 mentioned
in column no.17 of P.M. notes at Exh.68 is
not possible by bullock cart accident. He
further stated that the description of each
injury is suggestive of age of injury. He
further stated that article no.8 is not
having smooth surface. He further stated that
there was no wheel mark on those injuries.
17. According to the prosecution,
Gawalanbai [PW-3] wife of Hanumant [deceased]
and Dipak [PW-6] son of the Hanumant
[deceased] have witnessed the incident.
361.2001 Cri.Appeal.odt
Gawalanbai [PW-3] in her evidence stated that
Prabhu, Vithal, Ramkishan are the brothers of
her husband. Since 10 years prior to the
incident, her husband and brothers of her
husband were residing separately. The lands
at Mandikhel and Aswal-Amba were given to
the share of her husband. Her parents are
from Mandikhel. At the time of incident, she
herself and her husband were residing at
Mandikhel. Her brother-in-law Ramkishan and
Vithal were residing in the field at the time
of incident. Her brother Angad purchased the
land namely 'Paisa' from Vishwanath Wahule.
She further stated that the accused
Janardhan Dhakne was to purchase the said
land. Her husband helped her brother for
purchasing the said land by offering
more money. The said land was purchased one
year prior to the said incident. Her brother
and her husband were jointly cultivating the
361.2001 Cri.Appeal.odt
said land namely Paisa. Janardhan Dhakne,
Vyankati Dhakne, Bankati Dhakne and Maruti
Dhakne were giving threat to her husband as
they could not purchase the said land. The
accused persons were giving threat of killing
to her husband. The said land namely Paisa is
near the land of accused, and from the field
of the accused, the said land can be
irrigated.
She further stated that on Friday
she herself, her husband Hanumant, her
brother Angad, and her son Dipak had been to
the said field namely Paisa. They reached in
the field at about 9.30 a.m. Her husband
started agricultural operation, and her
brother Angad went to the Parali for bringing
seed. At about 11.00 a.m. accused Vyankati
and Bankati came in the said field. The
accused Vyankati and Bankati asked her
husband to give the said land to them, and
361.2001 Cri.Appeal.odt
asked to that effect even to Angad. Her
husband refused to give the said land to
them. Then accused Vyankati and Bankati
started giving abuses. Her husband also gave
abuses to them. Then the accused Janardhan,
Maruti Kute, Parwatibai, Kausabai came to the
said field and Janardhan asked the other
accused to beat Hanumant. Then the accused
Bankati gave a blow of an axe on the head of
her husband, also on neck. Accused Vyankati
gave an axe blow on the right leg of her
husband. Accused Maruti beat her husband by
means of wooden, instrument 'Rumne' on chest
and leg. The accused Janardhan beat her
husband by means of stick on the hands when
he raised his hands. The accused Kausabai
caught hold her hair, and accused Parwatibai
beat her by means of feet, and also beat her
husband. She asked her son Dipak to go to the
house and call her brother. Her son Dipak
went to the house. Her brothers Ankush and
361.2001 Cri.Appeal.odt
Bibhishan came running to the spot. After
arrival of her brothers, the accused persons
ran away. Her husband sustained bleeding
injuries on head, neck and also on leg. She
wrapped towel over injuries of her husband.
18. She further stated that son of her
brother, namely Rajabhau, brought bullock
cart. Then her husband was carried in the
said bullock cart up to the road. She herself
and her brothers accompanied her husband in
the said bullock cart. From the road, they
carried her husband in auto rickshaw in
Ambajogai Police Station. From the Police
Station along with Yadi, her husband was
carried to the Government Hospital. Her
husband was admitted in the Government
Hospital, Ambajogai. At about 3.00 a.m. her
husband died in the Hospital. Then, she
lodged the complaint / FIR. She put her thumb
impression on the said Complaint/FIR. She
361.2001 Cri.Appeal.odt
further stated that she can identify axe,
stick and Rumne used in the commission of
offence by the accused, and accordingly, she
stated that article nos.4, 8 and 9 are the
same by which her husband was beaten. She
also identified the accused who were present
in the Court.
19. It appears that the suggestion was
given to her in the cross examination that
her husband i.e. Hanumant, was involved in
the money lending business, and the land from
Gat No.31, namely Paisa, was purchased by her
husband as a money lender; but the said land
was purchased in the name of Angad i.e. her
brother. The suggestion was also given to her
that while executing transaction of the
aforesaid land, it was agreed to return the
said land after repayment of money. It
appears that the suggestion was given that,
whether Bankati signed the said sale deed as
361.2001 Cri.Appeal.odt
witness. Further suggestion was given that
Vishwanath was insisting for return of the
land on repayment of money to her husband,
and the accused Bankati was also asked her
husband to return the land of Vishwanath, and
on refusal of returning the land, there was
quarrel between her husband and Bankati.
However, Gawalanbai [PW-3] denied the said
suggestions given by the defence counsel.
It further appears that the
suggestion was given by the defence that
Keshav Bhaurao Kedar of Mandekhel had filed
complaint against her, her husband, her
brothers Angad, Ankush and others. She stated
that it is true that the complaint was filed
and in the said case, they were convicted by
the Court. The suggestion was given that
whether the said Keshav executed two sale
deeds in favour of her husband as nominal
sale deeds, however, the said suggestion was
361.2001 Cri.Appeal.odt
denied by her. She also admitted that her
husband Hanumant had filed the suit against
the said Keshav, his wife and daughter in
respect of the land, and the said suit was
dismissed. There was also suggestion given
that she purchased one land from Shrimant
Kerba and that land was again returned to
him, however, the said suggestion was denied
by her. There was also suggestion given to
her that whether her husband deceased
Hanumant has purchased two lands from Jema
Tukaram and then those lands were returned,
however, the said suggestion was also denied
by her. It appears that further suggestion
was given that her husband has obtained sale
deeds from Lahudas and Ankush and then re-
conveyed the said lands to them, however, the
said suggestion was denied by her. She stated
that 2-3 times threats were given by the
accused to her husband, however, Hanumant did
not lodge any complaint about giving such
361.2001 Cri.Appeal.odt
threats.
She further stated that while
lodging the complaint, she stated before the
police that her son Dipak accompanied them to
the field on the date of incident, but she
cannot assign any reason why the said
information is not appearing in the FIR. She
stated that nobody was there in the adjoining
land at the time of incident. She shouted,
but lady accused caught hold her. She further
stated that till her brother came in the
field, the accused persons were beating them.
The lady accused caught hold her hair, and
beat her and did not allow her to intervene.
She was beaten on her back by means of kick
and fist blows. She fell on the ground. As
she fell on the ground, there were some
abrasions on her back. As her husband
sustained serious injuries and died, she did
not medically examine herself. She denied
361.2001 Cri.Appeal.odt
suggestion that there were houses of Bankati
and Rajaram Wahule in the field, and they are
residing there along with their families.
She further stated that they did not inform
the Police Patil about the incident. They
went to the Police Station and from Police
Station, they went to the Hospital. She
further stated that she herself, her brothers
Ankush and Bibhishan, and son of Ankush
namely Rajabhau accompanied her to the Police
Station while carrying her husband and Angad
came afterwards. The incident was narrated by
her to the Doctor. Her husband was admitted
in the Hospital in between 1.00 to 1.30 p.m.
She denied suggestion that due to quarrel
between her husband and Bankati on the count
of return of the field, false case was lodged
against the accused. She denied suggestion
that her husband had obtained sale deeds from
so many persons under money lending
transactions and that's why there were so
361.2001 Cri.Appeal.odt
many enemies to her husband. She also stated
details about the names of the adjoining land
owners. She stated that at the time of
incident, sowing and other operations were
going on in the fields. She stated that while
lodging the FIR, she stated before the Police
that Vyankati and Bankati asked her husband
for re-conveyance, and her husband told that
Angad will not execute the re-conveyance
deed. However, she denied that the
aforementioned version was not stated by her
in the complaint/FIR. She further stated that
her brother was with her since her husband
was admitted in the Hospital till cremation.
She is not able to remember the Gut number of
the land, and the date on which the land was
purchased in the name of Angad. The incident
had taken place at about 11.00 to 11.30 a.m.
Before her husband was carried to the
Hospital from the Police, the information
about the incident was given by her to the
361.2001 Cri.Appeal.odt
Police. Again on the next day, she visited
the Police Station. She further stated that
while lodging the FIR, she stated that
Janardhan Dhakne, Vyankati Dhakne, Maruti
Gutthe, Bankati Dhakne were giving threats to
her husband for not purchasing the land, and
that land was purchased by her husband by
giving more money. She further narrated
before the Police that the said land is near
the land of accused. However, she cannot
assign any reason why the afore-mentioned
version is not appearing in her statement
before the police. She further stated that
while lodging the FIR, she stated before the
Police that Maruti beat by means of 'Rumne'
on the chest, and leg. However, she cannot
assign any reason why the said version is not
appearing in her complaint / FIR. She further
stated that she did not state while lodging
the complaint that, Janardhan beat her
husband by means of stick on his hand when he
361.2001 Cri.Appeal.odt
raised his hand. She further stated that she
wrapped towel on the wound of her husband.
and further while lodging the FIR, the son of
her brother namely Rajabhau brought bullock
cart. However, she cannot assign any reason
why the said portion is not appearing in her
complaint / FIR. She further stated that she
stated in the complaint that she was beaten
by Kaushalyabai by holding her hair. She
cannot tell any reason why the said statement
is not appearing in her complaint/FIR. She
cannot remember whether her husband or
brother purchased the land of Shriram Dhakne
from Gat No.30 and whether her husband or
brother were cultivating the said land.
20. The prosecution examined Dipak
Hanumant Dhakne as PW-6. In his evidence, he
stated that name of his mother is Gawlanbai.
He was calling his father as Pappa. On the
day of incident, he was in the field. His
361.2001 Cri.Appeal.odt
father and mother were with him on that day.
His father was doing agricultural operation
in the field. His mother was also doing work
in the field. He was playing in the field.
Vyankya, Bankya, Janya and Marutya came to
the field and beat his father. They beat his
father by means of sticks, axe and Rumne.
The assailant did not talk anything. His
father was beaten on the chest, head and
legs. His father asked him to call maternal
uncle with bullock cart. Then he went to
their house. He told to Biban and Ankush and
Rajabhau. He told that Rajabhau is called
with bullock cart. Then Ankush, Bibhishan
came to the field and Rajabhau came in the
field with bullock cart. Those assailants are
present today in the Court.
21. During his cross examination, he
stated that his school is up to the 4th
standard. There are four rooms in his school.
361.2001 Cri.Appeal.odt
There is one teacher to them. The name of his
teacher is Jogdand. He himself was alone
playing in the field. He went to the field
along with his parents. When the assailants
were beating his father, his mother was near
the said spot. Yankya, Bankya used to visit
their house and hence he knows them. He has
seen them at his house once. Nobody
introduced them with him. Janya and Marutya
were also visiting his house and hence he
knew them. They visited their house for 2-3
times. Except those persons, nobody from
Aswal-Amba used to visit their house. He is
not acquainted with owners of adjacent
fields. His mother had collected 2-3 pots
residues of grass. The assailants beat his
father and went away and then his father
asked him to bring bullock cart. Ankush,
Biban and Rajabhau were at their house. He
went towards the house and he was crying.
Nobody met him when he went towards his
361.2001 Cri.Appeal.odt
house. Then he returned to the field with
Bibhan, Ankush and Rajabhau. He accompanied
his father to the Hospital. His statement was
recorded by the Police. He has not stated
before the Police about any talk between his
father and assailants. Portion marked 'A'
from his police statement now read over to
him is not correct. He has not stated so
before the Police. It is true that he
attended the Court on every date. He is
seeing the accused persons on every date.
His mother and maternal uncle also used to
visit every date along with him. He denied
suggestion that his mother and maternal uncle
used to tell him who is Janya, Marutya,
witness added that he knows them. He denied
suggestion that on every date his mother and
maternal uncle used to say him how he should
give evidence in the Court. He denied
suggestion that he did not go to the field on
day of incident and he does not know about
361.2001 Cri.Appeal.odt
the incident. He denied suggestion that on
the say of his mother and maternal uncle he
is deposing in the Court. His uncle Vithal
has three children. Vithal is residing at
Aswalamba. Soni, Parwati and Santosh are the
names of children of his uncle. His anotehr
uncle Ramkishan is also residing at
Aswalamba.
22. PW-6 further stated in his cross
examination that it is true that his mother
used to teach him how to behave. His mother
used to scold him if behaved improperly. He
has stated before the Police that Janya and
Martya beat his father. He cannot assign
reason why that is not appearing in his
statement. Nobody told him about Janya and
Martya. He knows them. He is afraid of his
mother if he has not stated properly here.
He denied suggestion that he is deposing on
the say of his mother that Janya, Vyankya,
361.2001 Cri.Appeal.odt
Bankya and Martya beat his father. He denied
suggestion that on the say of his mother and
his maternal uncle, he is deposing false. He
denied suggestion that on that day he did not
go in his field and no accused beat his
father in his presence. He denied suggestion
that his father did not ask him to go and
bring bullock cart.
23. We have discussed the evidence of
two eye witnesses, namely, PW-3 Gawalanbai
and PW-6 Dipak. Upon careful perusal of the
evidence of PW-3 Gawalanbai, after incident
she took her husband to the Police Station.
Her brothers accompanied her and from
the Police Station they went to the Hospital.
As per the prosecution case the incident had
taken place at about 11.00 to 11.30 a.m. on
23rd July, 1999. However, the FIR was
registered on 24th July, 1999. The prosecution
has not explained the delay in lodging the
361.2001 Cri.Appeal.odt
FIR, and in the present case, when PW-3
Gawalanbai took her husband Hanumant first to
the Police Station and thereafter to the
Hospital, there was no reason for not
promptly lodging the FIR. PW-3, Gawalanbai,
has not mentioned the presence of PW-6 Dipak
in the FIR. However, first time, she has
stated before the Court during her evidence
that PW-6 Dipak was present in the field, and
he was asked to rush to the house and to call
brothers of the informant. Therefore, afore-
mentioned version is an improvement by way of
omission. She has also stated in her
complaint/FIR that the deceased became
unconscious on the spot after attack by the
accused persons, however, PW-4, Bibhishan,
who is brother of the informant, who
allegedly reached to the spot after incident,
has deposed before the Court that the
deceased has told him that accused Janardhan,
Vyankati and Bankati beaten him. The said
361.2001 Cri.Appeal.odt
version of PW-4 Bibhishan is contrary to the
version of PW-3 Gawalanbai. If the evidence
of PW-3 Gawalanbai is perused carefully, she
stated that she was also beaten by the
accused, however, there is no any injury
certificate brought on record by the
prosecution to that effect. Though she stated
in her evidence that accused Bankati gave a
blow of an axe on the head of her husband,
and also on neck. However, the PW-11 Dr.Goli,
Medical Officer stated that the injuries
mentioned in the postmortem report are
possible by hard and blunt object. He further
stated that the injuries are also possible by
an axe if hit by blunt end. He stated that
injury no.1 mentioned in column no.17 of the
postmortem notes along with corresponding
internal injury to brain is the main cause of
death. He specifically stated that no injury
was found on the dead body caused by the
sharp edge of the axe. He further stated that
361.2001 Cri.Appeal.odt
injury no.1 is possible because of fall from
the bullock cart in case of accident.
Therefore, the medical evidence does not
correspondent with the version of the PW-3
Gawalanbai that accused Bankati gave a blow
of an axe on the head from sharp side of the
axe. They carried Hanumant [deceased] by
bullock cart first to the Police. PW-3,
Gawalanbai, stated in her evidence that when
Hanumant [deceased] sustained injuries to his
head, she wrapped towel on his head. However,
the said towel was not sent to the C.A. On
perusal of her cross examination, it appears
that, suggestion was given by the defence
that Hanumant [deceased] was indulged in
money lending business, and he purchased the
land of various persons out of such money
lending business, and therefore, many persons
had enmity with him. It appears that, the
said suggestion was denied. However, she
admitted that one Keshav Bhaurao Kedar,
361.2001 Cri.Appeal.odt
resident of village Mandekhel had filed
complaint / FIR against her, her husband, her
brothers Angad and Ankush and in the said
case, they were convicted by the Court. She
also admitted that her husband Hanumant had
filed the suit against said Keshav, his wife
and daughter in respect of the land dispute,
however, the said suit was dismissed.
Upon careful perusal of her
deposition, it clearly emerges that she made
considerable improvements in her evidence
before the Court by way of omissions. She
deposed that the land, about which dispute
arose between the accused and her husband, is
near to the land of the accused. However, she
cannot assigned any reason why the afore-
mentioned version is not appearing in her
statement before the Police. Though she
stated before the Police that Maruti beat by
means of Rumne on the chest, and leg. She
361.2001 Cri.Appeal.odt
cannot assign any reason why the said version
is not appearing in her complaint / FIR. She
further stated that she did not state while
lodging the complaint that, Janardhan beat
her husband by means of stick on his hand
when he raised his hand. She further stated
that she wrapped towel on the wound of her
husband. and further while lodging the FIR,
the son of her brother namely Rajabhau
brought bullock cart. However, she cannot
assign any reason why the said portion is not
appearing in her complaint / FIR. She further
stated that she stated in the complaint that
she was beaten by Kaushalyabai by holding her
hair. She cannot tell any reason why the said
statement is not appearing in her
complaint/FIR. However, upon careful perusal
of the evidence of PW-10, Investigating
Officer, he stated that the contents of the
FIR were written down as it is, as narrated
by the PW-3 Gawalanbai.
361.2001 Cri.Appeal.odt
24. Upon careful perusal of the evidence
of PW-6 Dipak, it appears that during
recording of the evidence, he referred all
the accused by first name. However, he stated
that, nobody told him their names. As a
matter of fact his age was 4½ years when the
alleged incident had taken place. As already
observed, PW-3, Gawalanbai, did not mention
in the FIR that PW-6 Dipak was present at the
time of incident. Upon careful perusal of the
evidence of PW-3 Gawalanbai and PW-6 Dipak,
same creates serious doubt about their
physical presence at the time of alleged
incident.
25. Upon considering the evidence of all
the prosecution witnesses in its entirety, an
involvement of the accused persons in the
alleged incident appears to be doubtful. We
have carefully perused the findings recorded
361.2001 Cri.Appeal.odt
by the trial Court, and we are of the
considered view that those are in consonance
with the evidence brought on record.
Therefore, the view taken by the trial Court
was possible. The Supreme Court in the case
of Muralidhar alias Gidda and another Vs.
State of Karnataka1 in para 12 held thus:-
12. The approach of the
appellate Court in the appeal
against acquittal has been dealt
with by this Court in Tulsiram
Kanu Vs.State, AIR 1954 SC 1,
Madan Mohan Singh Vs. State of
U.P., AIR 1954 SC 637, Atley Vs.
State of U.P., AIR 1955 SC 807,
Aher Raja Khima Vs. State of
Saurashtra, AIR 1956 SC 217,
Balbir Singh Vs. State of
Punjab, AIR 1957 SC 216,
M.G.Agarwal Vs. State of
Maharashtra, AIR 1963 SC 200,
Noor Khan Vs. State of
Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs. State of Bihar,
1. 2014 [4] Mh.L.J.[Cri.] 353
361.2001 Cri.Appeal.odt
[1970] 2 SCC 450, Shivaji
Sahabrao Bobade Vs. State of
Maharashtra, [1973] 2 SCC 793,
Lekha Yadav Vs. State of Bihar,
[1973] 2 SCC 424, Khem Karan Vs.
State of U.P., [1974] 4 SCC 603,
Bishan Singh Vs. State of
Punjab, [1974] 3 SCC 288,
Umedbhai Jadavbhai Vs. Sate of
Gujarat, [1978] 1 SCC 228,
K.Gopal Reddy Vs. State of A.P.,
[1979] 1 SCC 355, Tota Singh Vs.
State of Punjab, [1987] 2 SCC
529, Ram Kumar Vs. State of
Haryana, 1995 Supp [1] SCC 248,
Madan Lal Vs. State of J & K,
[1997] 7 SCC 677, Sambasivan Vs.
State of Kerala, [1998] 5 SCC
412, Bhagwan Singh Vs. State of
M.P. [2002] 4 SCC 85, Harijana
Thirupala Vs. Public Prosecutor,
High Court of A.P., [2002] 6 SCC
470, C. Antony Vs. K.G.Raghavan
Nair, [2003] 1 SCC 1, State of
Karnataka Vs. K.Gopalakrishna,
[2005] 9 SCC 291, State of Goa
Vs. Sanjay Thakran, [2007] 3 SCC
755 and Chandrappa Vs. State of
361.2001 Cri.Appeal.odt
Karnataka, [2007] 4 SCC 415. It
is not necessary to deal with
these cases individually.
Suffice it to say that this
Court has consistently held that
in dealing with appeals against
acquittal, the appellate Court
must bear in mind the following:
(i) There is presumption of
innocence in favour of an
accused person and such
presumption is strengthened by
the order of acquittal passed in
his favour by the trial court,
(ii) The accused person is
entitled to the benefit of
reasonable doubt when it deals
with the merit of the appeal
against acquittal, (iii) Though,
the powers of the appellate
Court in considering the appeals
against acquittal are as
extensive as its powers in
appeals against convictions but
the appellate Court is generally
loath in disturbing the finding
of fact recorded by the trial
court. It is so because the
361.2001 Cri.Appeal.odt
trial Court had an advantage of
seeing the demeanor of the
witnesses. If the trial court
takes a reasonable view of the
facts of the case, interference
by the appellate Court with the
judgment of acquittal is not
justified. Unless, the
conclusions reached by the trial
court are palpably wrong or
based on erroneous view of the
law or if such conclusions are
allowed to stand, they are
likely to result in grave
injustice, the reluctance on the
part of the appellate Court in
interfering with such
conclusions is fully justified;
and (iv) Merely because the
appellate Court on re-
appreciation and re-evaluation
of the evidence is inclined to
take a different view,
interference with the judgment
of acquittal is not justified if
the view taken by the trial
Court is a possible view. The
evenly balanced views of the
361.2001 Cri.Appeal.odt
evidence must not result in the
interference by the appellate
Court in the judgment of the
trial Court.
[Underlines supplied]
26. In the light of above, we do not
find any reason to interfere in the impugned
judgment and order of acquittal, hence appeal
stands dismissed.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
