Bombay High Court
State Of Maharashtra vs Krishna Sandu Pache And Ors on 8 June, 2017
Bench: S.S. Shinde
344.1999 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.344 OF 1999
The State of Maharashtra APPELLANT
[ori.complainant]
VERSUS
1. Krishana Sandu Pache,
Age 25 yrs.
2. Uddhav Sandu Pache,
Age 22 yrs.
3. Pandharinath Yadavrao Pache,
Age 35 yrs.
4. Samindrabai w/o. Tatyarao Pache,
Age 67 yrs.
5. Gitabai Yadavrao Pache,
Age 65 yrs.
6. Asrabai Bhagchand Pache,
Age 35 yrs.
7. Bhagchand Yadavrao Pache,
Age 42 yrs.
All R/o. Golatgaon
Tq. Aurangabad. RESPONDENTS
[ori.accused]
...
Mr.P.G.Borade, APP for the Appellant - State
Mr.Joydeep Chatterji, Advocate for
Respondents.
...
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344.1999 Cri.Appeal.odt
2
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Date: 08.06.2017.
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 Sessions
Judge, Aurangabad on 29th May, 1999 in
Sessions Case No.52/1999.
2. The prosecution case in nutshell is
as under:
Sominath Pache, victim, belonged to
a family, which had some dispute with the
accused about using a path through the field
of the accused. A few days before the
incident, members of the family of Sominath
had been obstructed from using the said path
and this had led to report being given to the
Police Station, Karmad. On 16th October, 1998,
in the morning Sominath was proceeding to the
344.1999 Cri.Appeal.odt
village for purchasing oil, when he was
passing by the field of the accused Uaddhav
and Krishna, both of them obstructed
Sominath, and prevented him from proceeding
further. Uddhav hit Sominath with a stick on
back. Accused Krishna, Uddhav, Bhagchand and
Pandharinath administered some insecticide to
the Sominath. At that time, accused
Samindrabai, Gitabai and Asrabai were abusing
Sominath. Upon seeing Sominath Pache who
administered insecticide to Sominath, wife of
victim namely Subhadrabai and her mother-in-
law Sonabai and one Sumanbai rushed to rescue
Sominath and made him drink butter-milk.
Suryabhan came there, and asked Sominath
about the incident whereupon Sominath was
reported to have told Suryabhan that, accused
had administered insecticide to him. Sominath
was carried in a bullock cart to village, and
thereafter, he was carried in a tempo to the
Hospital at Aurangabad. But, Sominath
344.1999 Cri.Appeal.odt
breathed his last on the way of Hospital.
Therefore, the dead body of Sominath was
brought back to his village. On report lodged
by the wife of Sominath, namely Subhadrabai,
an offence was registered and investigation
was commenced.
3. During the course of investigation,
the police performed inquest panchnama and
sent the dead body for postmortem
examination. The Medical Officer preserved
viscera and reserved opinion. The viscera was
sent to the Forensic Science Laboratory. An
expert opined that, organochloro insecticide
Endosulfan was found in the viscera. Upon
receipt of this report, the Medical Officer
gave death certificate stating that, the
death was due to poisoning due to consuming
organochloro insecticide endosulfan. During
the course of investigation, the Police
performed spot panchnama and also recorded
the statements of witnesses. The accused
344.1999 Cri.Appeal.odt
persons had been arrested. The accused
Bhagchand allegedly agreed to produce the
bottle of insecticide, which he claimed to
have been thrown on the rubbish heap. A
memorandum of his statement was made, and the
bottle was subsequently recovered and seized.
Accused Krishna agreed to produce the sticks
used in assaulting Sominath. A memorandum was
made, and the sticks were seized upon their
being pointed out by the accused Krishna.
The incriminating articles were seized
including the clothes of the deceased, which
were sent to the Forensic Science Laboratory.
The reports from the Laboratory were
received, and on completion of the
investigation, the charge sheet was filed.
4. The Judicial Magistrate First Class
[14th Court], Aurangabad, committed the case
to the Sessions Court at Aurangabad, on
finding that the accused had allegedly
committed an offence, exclusively triable by
344.1999 Cri.Appeal.odt
the Court of Session. The trial Court framed
charge for the offences punishable under
Sections 147, 148 and 302 r/w. 149 of the IPC
against the accused persons. The accused
pleaded not guilty to the said charge and
claimed to be tried.
5. The prosecution examined
Velhorenukanand as PW-1, panch of the
inquest panchnama. Ramu Salunke was examined
as PW-2, panch of the spot panchnama. Wife of
victim Subhadrabai and brother of victim
Janardhan were examined as PW-3 and PW-4.
Dr.Bhalchandra, who conducted the postmortem
examination, was examined as PW-5. The eye
witnesses, Dwarkabai and Sonabai, were
examined as PW-6 and PW-7. Prabhu Rithe, was
examined as PW-8, panch to the recovery of
bottle of insecticide and sticks at the
instance of the accused persons. The
Investigating Officer, API, Rajendra Murkute
was examined as PW-9. The defence of the
344.1999 Cri.Appeal.odt
accused in the statement under Section 313 of
the Criminal Procedure Code is that of denial
and false implication.
6. After full-fledged trial, the trial
Court acquitted all the accused of the
offences punishable under Sections 147, 148,
302 r/w.149 of the I.P. Code. Hence this
Appeal filed by the appellant - State.
7. Heard learned APP appearing for the
State and Mr.Joydeep Chatterji learned
counsel appearing for the respondents -
accused. The prosecution examined
Dr.Shrikrishna Ramchandrarao Bhalchandra as
PW-5, Medical Officer and Associate
Professor, who conducted postmortem
examination of deceased Sominath. He observed
injuries as stated herein below:
i] Contusion over lateral aspect of
upper part of right arm measuring
7.5 cm x 2.5 to 3.0 cms. It was rail
344.1999 Cri.Appeal.odt
track type of injury with central
pale area into 1.5 cm. in breadth-it
was reddish bluish in colour.
ii] Abraded contusion over lateral
aspect of left elbow joint, oblique,
3 x 1 cm. reddish in colour.
He opined that, the afore-mentioned
injuries are ante-mortem. On internal
examination, brain and lungs were congested
and ordematous. Mucosa of bucal cavity was
congested and also of oesophagus. Stomach was
normal in size, congested in abdomen, mucosa
congested eroded at places. There was 300 cc
yellowish coloured fluid with strong aromatic
smell. Small intestine and large intestine
were congested. Rest of the organs were
congested. He kept the viscera preserved for
chemical analysis. The opinion as to cause of
death was preserved and viscera was
preserved. He further stated the cause of
death was organochloro insecticide endosulfan
344.1999 Cri.Appeal.odt
[thiodan] poisoning. Dr.Zine gave this
opinion after consulting him. He further
stated that, except afore-mentioned two
injuries, he did not notice any other injury.
He did not find any deep seated injury in
this case. He did not notice any injury on
the base of nose, mandible, jaw or neck.
There was no injury to the scapula or ear
pinna. No crescent shape marks were found on
the wrist, arm or any part of body. No blood
was found beneath the nail clippings.
Normally, a person will resist administration
of poison forcibly. Bowels were not empty.
When a person omit, part of the contents of
the stomach would be removed partly. Injury
no.2 can be possible by a fall. He does not
agree that, injury no.1 is possible by a fall
on bamboo. He has not mentioned bamboo stick
in the p.m. notes. He does not agree that,
rail track injury can be produced by a cut
plastic pipe embodied on the ground on which
344.1999 Cri.Appeal.odt
a person is fallen. Police did not bring any
object before him for examination. In cases
of poisoning, organs are supposed to congest.
He fairly conceded that, he did not seal the
clothes of the victim before handing them
over to the Police.
8. The prosecution examined Subhadrabai
Sominath Pache as PW-3. She stated that,
Sominath was her husband. At the time of
incident, they used to reside in the field.
On the date of incident, her husband was
proceeding towards the village to purchase
oil and groundnuts. Accused Uddhav and
Krishna were standing near their cattle shed.
Uddhav, Krishna, Bhagchand and Pandharinath
started beating her husband with sticks. On
the previous day, her husband and brother of
her husband had been stopped by Uddhav and
Krishna from using the said path which was in
dispute. They had given application raising
grievance about it. Uddhav, Krishna,
344.1999 Cri.Appeal.odt
Pandharinath and Bhagchand made her husband
drink some medicine. Accused Asrabai,
Geetabai and Samindrabai were giving abuses.
She [PW-3] was shouting, but the accused
prevented her from going to her husband.
Sumanbai and Sonabai came there. They brought
her husband near the cattle shed of Sumanbai
and Sonabai. They made Sominath drink butter
milk. Her father-in-law's younger brother
brought a cart. Her husband was taken to the
village in the cart and from there in a tempo
towards Aurangabad. Sominath died on the way.
They turned back and carried the dead body
home. Policemen came to the village. Police
recorded her statement.
During her cross examination, she
stated that, her husband was carrying a
plastic bag for bringing oil. Krishna and
Uddhav are not residing in the field adjacent
to her field. When her husband was proceeding
to bring oil, she was cooking. Her parent in
344.1999 Cri.Appeal.odt
law were not at home. Her small son and
daughter are with her. At the relevant time
they were playing. She cooked all pan cakes.
The work of digging well was in progress. The
material excavated while digging the well is
laid towards the east. The bund has been
pitched up by laying stones around 10 ft. in
height. There are big neem and babul trees on
the bund. She further stated that, she came
out of the house immediately after her
husband left. She further stated that, it is
true that she came out of the house on
hearing noise of quarrel. The quarrel was
going on in the field of Bhagchand. She
started running. When she reached at the
spot, only her husband Sominath was lying
there. Sonabai and Sumanbai came after her.
Sominath was not given butter milk at the
place where he was lying. Butter milk had
been brought by one Sarla. Sominath omitted
after drinking butter milk. Therefore, though
344.1999 Cri.Appeal.odt
she stated in examination in chief that,
Uddhav, Krishna, Pandharinath and Bhagchand
made her husband drink some medicine, it
appears from her cross examination that,
neither she saw accused persons administering
poison / medicine, nor they were present when
she went to the spot of incident. She further
stated that, Nagu was not at all with them,
when they went to the Police Station. She
admitted that, PSI seized a bottle from the
roof of her house. It was bottle which
contained pesticide. She further stated that,
her husband was healthy and wrestler. She
further stated that, Sominath used to tell
his father to partition his property, but
father-in-law did not effect partition. This
had given rise to dispute between father and
son. The suggestion was given to her that,
one or two days prior to the incident, there
was exchange between father and son in
respect of partition of the property. The
344.1999 Cri.Appeal.odt
suggestion was also given that, since father
of Sominath refused to effect partition, in
the heat of anger Sominath consumed
insecticide, however, she denied the said
suggestion. She further stated that, thorny
fencing has been set up on the bund between
their field and the field of the accused.
Upon careful perusal of her evidence, it
appears that, she had neither witnessed the
accused administering poison nor the presence
of the accused on the spot of incident at the
relevant time. Her some of the admissions
given in the cross examination clearly show
that, she has not actually witnessed the
incident. Therefore, the trial Court has
rightly disbelieved her evidence.
9. The prosecution examined Janardhan
Laxman Pache as PW-4. During the course of
recording his evidence, he stated that,
deceased Sominath was his brother. He knew
all accused. Before incident Sominath came to
344.1999 Cri.Appeal.odt
Janardhan [PW-4] at Aurangabad. Sominath told
him that, accused persons are not allowing
them to use the path, which is in dispute.
Thereafter, he himself along with Sominath
went to their village. When Janardhan [PW-4]
along with Sominath were walking on the path,
which is in dispute, accused Krishna and
Uddhav stopped them. They asked them not to
use the said path. On the said date, his
father gave application to the Karmad Police
Station. He stayed over night in the field on
that day. He met PSI of Karmad Police Station
on next day. He returned to Aurangabad. Again
he went to Karmad Police Station after two
days. He accompanied Head Constable Mr.Wagh
on his motorcycle and went to his village. On
reaching the village, he learnt that,
Sominath had been murdered by Krishna,
Uddhav, Bhagchand and Pandhari by
administering poison. It clearly emerges from
this deposition that, he has not witnessed
344.1999 Cri.Appeal.odt
the actual incident. He was not eye witness.
His evidence can be useful to the extent of
proving motive of commission of an alleged
offence of previous dispute over the foot
path between his family on one side and
accused on other side.
10. During his cross examination, he
stated that, though his father gave report in
the police station, however, the said report
was not written down by the Officer, who was
incharge of the Police Station, neither any
action was taken on the basis of said report.
11. The prosecution examined Dwarkabai
Santosh Bhawale as PW-6. Her evidence is at
Exhibit-26. She stated that, she knew
deceased Sominath. She identified all the
accused, who are present in the Court. She
stated that, she heard noise of quarrel from
a place near the cattle shed of Bhagchand.
Pandharinath, Bhagchand, Uddhav and Krishna
344.1999 Cri.Appeal.odt
beat Sominath by sticks. He was also beaten
by fists and kicks by those persons. Asrabai,
Samindrabai and Geetabai gave abuses.
Bhagchand, Pandharinath, Krishna and Uddhav
made Sominath to drink some pesticide.
Sonabai, Sumanbai and his wife went to the
spot. Then three of them brought Sominath to
a path. He was made to drink butter milk. He
omitted the same. He was placed in the
bullock cart and taken away. Lateron Sominath
died.
12. During her cross examination, she
stated that, when she heard noise of quarrel,
she was at home. She was doing domestic work.
The noise of quarrel came from beyond
Bhagchand's house. She stated to the police
that Pandharinath, Bhagchand and Krishna beat
Sominath with sticks. She also stated to the
police that, Sominath was beaten by fists and
kicks. She also told Police that,
Pandharinath and Uddhav also administered
344.1999 Cri.Appeal.odt
pesticide to Sominath. However, she cannot tell
the reasons why her said statement is not
recorded by the Police. Therefore, it is
crystal clear that, the story which witness
Dwarkabai [PW-6] gave before the Court about
the incident and role of the accused did not
find place in her statement before the Police.
In her cross examination, though she stated
about incident, and role played by the accused,
however, the police did not record the same in
her statement. PW-9 API Murkute stated in his
cross examination that, Dwarkabai did not make
such statement before him, and therefore, it
creates doubt about credibility of claim of
Dwarkabai [PW-6] that, she saw the incident,
and the accused were assaulting Sominath by
stick, and they administered pesticide to him.
13. The prosecution examined Sonabai
Nagorao as PW-7. She claimed that, she is
an eye witness. She claimed that, she heard
noise of quarrel,and on coming to the door
344.1999 Cri.Appeal.odt
of the house, she found the accused persons
beating up Sominath. However, she stated
that, before they reached to Sominath was
lying on the floor. He was brought near brick
kiln and made to drink butter milk. However,
her cross examination would make it clear
that, no such statement was made by her to
the Police. These omissions in her statements
were put to the Investigating Officer, and
the Investigating Officer told that, no such
statement was made by Sonabai before him.
Therefore, the evidence of Sonabai before the
Court narrating about the manner in which
the actual incident has taken place, and role
played by the accused, is an improvement
afterthought and therefore same is not
reliable.
14. The trial Court, upon appreciation
of the evidence of the prosecution witnesses,
and in particular three eye witnesses,
reached to the conclusion that, their
344.1999 Cri.Appeal.odt
evidence is not worthy of any trust in order
to conclude that, Sominath was administered
poison by four accused persons. In the light
of the discussion in the foregoing
paragraphs, in our view, the view taken by
the trial Court upon appreciation of the
evidence brought on record is plausible, and
the findings recorded by the trial Court are
in consonance with the evidence brought on
record, there is no perversity as such, and
therefore, interference in the impugned
judgment and order of acquittal is not
necessary.
15. In that view of the matter, the
appeal stands dismissed. The bail bonds, if
any, shall stand cancelled.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
