Raju S/O Dashrath Pachare vs The State Of Mah.Thr.Its ...
2017 Latest Caselaw 4853 Bom

                                       1                                                               apeal6.02


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.

                    CRIMINAL APPEAL (APEAL) NO. 06 OF 2002

Raju Dashrath Pachare,
aged about 24 years, resident
of Kondurli, Tahsil Pauni,
District Bhandara.                                                ... APPELLANT

                                           VERSUS

State of Maharashtra, 
through its P.S.O., Pauni, 
District Bhandara                                               ... RESPONDENT

                                     ....
Shri Amol Mardikar, Advocate for the appellant.
Shri S.S. Doifode, Additional Public Prosecutor for the respondent.
                                     ....


                                        CORAM : M.G. GIRATKAR, J.

DATE OF RESERVING THE JUDGMENT  : 13TH JULY, 2017.

DATE OF PRONOUNCING THE JUDGMENT : 21ST JULY, 2017.


JUDGMENT : 

The present appeal is filed by the appellant against his

conviction by the learned Ad hoc Additional Sessions Judge, Bhandara vide

judgment dated 13.12.2001 in Sessions Trial No. 154/1996.

2. One Deonath Kodaguji Jibhkate lodged a report in the Police

Station, Pauni stating that his elder brother Ganpat was sleeping in the

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night of 21.03.1996 in the verandah. His wife Shewantabai was also

sleeping on another cot. The complainant was at his house. At about

11:35 p.m., he heard noise of Shewantabai. She gave call to Deonath that

Raju Pachare beat his brother Ganpat and ran away. It is further alleged in

the report that other two persons were also along with him. The

complainant reached to the house of Ganpat and seen injury on his face. It

was a bleeding injury. Ganpat was not in a position to speak. The said

injury was caused by an edged weapon. Injured Ganpat asked for one

paper and pen. He wrote the name of Raju Pachare and gave indication of

two persons by raising two fingers. Crime was registered against all the

accused persons for the offence punishable under Section 307 read with

Section 34 of the Indian Penal Code. After investigation, the prosecution

filed the charge sheet before the JMFC, Pauni. The same was committed to

the Court of Session for trial. The learned trial Court framed the charge at

Exh.16. The same was read over and explained to the accused persons.

The accused denied to the charge and claimed to be tried.

3. The prosecution has examined in all eight witnesses. After

recording the statement of accused under Section 313 of the Code of

Criminal Procedure and hearing the prosecution and defence, the trial

Court convicted accused/appellant and acquitted the other two accused.

Being aggrieved by the judgment of conviction, the appellant has filed the

present appeal.

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4. Heard Shri Amol Mardikar, the learned Counsel appearing on

behalf of the appellant. He has pointed out the evidence of complainant

Deonath. He is not the eye witness of the incident. PW-2 turned hostile.

There is material omission in the evidence of PW-1 Deonath. The learned

Counsel has submitted that it was a dark night. PW-4 Shewantabai and her

husband Ganpat were sleeping. They did not see the persons, but due to

enmity they involved all the accused. Shri Mardikar, the learned Counsel

has pointed the cross-examination of Shewantabai and submitted that she

has specifically admitted that it was a dark night. The learned Counsel has

submitted that the injured himself has not stated the name of other two

accused in his evidence. He has stated that he was sleeping in the night at

about 11:30 p.m. and the accused persons suddenly came and Raju gave

blow of sword to him. He sustained injury to his jaw. The learned Counsel

for the appellant has pointed out the cross-examination of injured and

submitted that he was in deep sleep. He has admitted that he was got up

when he was injured. This itself shows that he had not seen any person

while causing injury. The material omission is brought on record that the

other two accused were standing towards his feet.

5. Shri Mardikar, the learned Counsel for the appellant has

pointed out the evidence of Head Constable Bhojram. He has proved

omission in the evidence of Shewantabai and the complainant Deonath.

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The learned Counsel has submitted that the prosecution has not proved

seizure of weapon from the accused. The seizure panchnama of sword is

wrongly executed. It shows that the sword was seized from Police Patil.

The Police Patil was not examined by the prosecution. The learned

Counsel submitted that the prosecution has failed to prove the guilt of the

accused/appellant beyond reasonable doubt. Therefore, the appellant is

entitled for acquittal.

6. Heard Shri S.S. Doifode, the learned APP for the respondent/

State. He has submitted that the injury is proved by Dr. Madankar (PW-8).

The complainant/injured and the wife of injured specifically stated that

there was a civil dispute between the accused and injured and, therefore,

accused/appellant attempted to commit murder of injured. The injury of

sword is on the vital part of the body. Therefore, intention of the appellant

was to cause death. The material ingredients of Section 307 is proved by

the prosecution. Hence, the appeal is liable to be dismissed.

7. PW-1 Complainant Deonath is not the eye witness. He reached

to the spot after the call given by his sister-in-law Shewantabai. His sister-

in-law told him that accused Raju Pachare stabbed his brother Ganpat by

sword and two other accused persons were along with him. He had taken

injured to the government hospital where his brother written the name of

Raju on one chit and gave indication by making gesture with fingers that

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there were two more persons. It is pertinent to note that when the injured

writes the name of Raju then he could have written the name of other two

accused also. The evidence of PW-4 Shewantabai and injured himself

clearly shows that the incident took place in the midnight at about 11:30

p.m.. The admission of Shewantabai shows that it was a dark night.

Though she has stated in examination-in-chief that there was a electric

bulb, the material omission is brought on record in her cross-examination

and proved by PW-6. The spot panchnama (Exh.25) does not show that

there was any electric bulb on the spot of incident. In the spot

panchnama, all material things are recorded, such as, sacks of paddy kept

near the door but panchnama does not show that there was any electric

bulb. The admission of injured itself shows that he was in deep sleep. He

got up when he was injured. Therefore, it is clear that he could not see the

person who caused injury. There was no light. It was dark night. There is

material omission in his cross-examination that the accused/appellant

suddenly entered his house and two accused were standing towards his

feet.

8. The prosecution created doubts by not examining the police

patil. PW-3 declared hostile. In his cross-examination, he has only stated

that Exh.27 bears his signature but he has specifically denied about the

seizure panchnama. He has admitted that the police patil not produced

sword in his presence vide seizure panchnama (Exh.29). As per the seizure

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panchnama (Exh.29), a sword was seized from police patil-Bisan Jibhkate,

but, the prosecution did not examine police patil. Seizure panchnama

(Exh.29) is not duly proved by the prosecution.

9. The prosecution has not examined that Investigating Officer

who has conducted further investigation. There is material doubt created

by the prosecution in respect of seizure of sword from police patil. PW-3

specifically denied the seizure of sword from police patil, then it was the

duty of prosecution to examine police patil and explain as to how, police

patil came into possession of the sword by which accused/appellant

caused injury. CA report does not show that there was any blood stain on

the sword.

10. The prosecution has created doubt by not examining the police

patil. As per the admission of Shewantabai, it was a dark night. There was

no electric bulb. There is material omission in her evidence in respect of

the electric bulb. The evidence of Shewantabai and injured Ganpat shows

that they were in deep sleep. Ganpat has stated in his cross-examination

that he got up when he sustained injury. In such a situation, in the dark

night, it was impossible to see the person. It appears that there was civil

dispute between the injured and accused persons. The other two accused

were involved without any specific evidence.

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11. It is fundamental principle of criminal jurisprudence that the

prosecution has to prove the guilt of accused beyond reasonable doubt. In

the present case, the prosecution has created material doubts and benefit

of doubt must go to the accused/appellant. Hence, the impugned

judgment is liable to be quashed and set aside.

12. Accordingly, the appeal is allowed. The impugned judgment is

hereby quashed and set aside. The bail bonds of accused/appellant shall

stand cancelled. R and P be sent back to the trial Court.

JUDGE

*rrg.