The State Of Maharashtra vs Gaurishankar Ramlal Bhurewal & ...
2017 Latest Caselaw 3322 Bom

                                     (1)                             crap363.99

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 363 OF 1999

The State of Maharashtra                              ..       Appellant

                                    Versus

1.    Gaurishankar Ramlal Bhurewal                    ..       Respondents
      Age. 26 years, Occ. Agri.,                               [original
                                                               accused]
2.    Bholashankar Ramlal Bhurewal
      Age. 21 years, Occ. Agri.,

3.    Umesh Bhagulal Bhurewal
      Age. 23 years, Occ. Agri.,

      All R/o. Near Amarchaya
      Talkies, Jalna.


Mr.P.G. Borade, APP for appellant/State.
Mr.A.K. Bhosale, Advocate for respondent Nos. 1 to 3.


                                     CORAM :  S.S.SHINDE &
                                              S.M.GAVHANE,JJ.

DATED : 19.06.2017

J U D G M E N T [PER : S.M. GAVHANE,J.] :-

. The appellant - State of Maharashtra has filed

this appeal under section 378(1)(3) of the Code of

Criminal Procedure, against judgment and order dated

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31.05.1999 passed by the Sessions Judge, Jalna, in

Sessions Case No.141 of 1994, acquitting the respondents/

original accused Nos.1 to 3 of the offence punishable

under section 307 read with section 34 of the Indian

Penal Code [for short "the IPC"].

2. The prosecution case in short is as under :-

A] The complainant - Radhakishan Kadape [PW-1], his

brother Gopal Kadape [PW-2] and father - Tarachand Kadape

[PW-3] were residing in Jalna city and at the time of the

incident PW-1 was running a hotel by name "Gopal Tea

House", near Shivaji statue in Jalna city. The accused

were residing near Amarchaya Talkies, Jalna.

B] It is alleged that on 23.05.1994 at about 9.30

pm, when PW-1 was in the hotel, accused No.1-Gaurishankar

came in the hotel to have tea and asked PW-1 to pay him

Rs.300/- per month as a tribute, as he is the don of

Jalna. Thereupon, PW-1 asked him as to why he should pay

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him the amount. Thereupon, accused No.1 assaulted the

complainant [PW-1] with fist and kick blows. Thereupon,

while PW-1 and his father [PW-3] were proceeding towards

the house of accused in the darkness, all the three

accused started assaulting him and his father. Accused

No.1-Gaurishankar caused grievous hurt to PW-1 by giving

blow of dagger [Gupti] on his stomach. Accused No.2-

Bholu assaulted on his head by iron pipe and accused

No.3-Umesh had given dagger in the hand of accused No.1

and started assaulting PW-1 by fist and kick blows. When

the complainant's father PW-3 was rescuing, one Atik

Ahmed Madni [PW-4] had come and he rescued him [PW-1].

It is alleged that all the three accused on account of

payment of installment of Rs.300/- per month and earlier

quarrel, seriously injured PW-1 and attempted to cause

his death.

C] Thereafter, the complainant [PW-1] and his

father [PW-3] went to Sadar Bazar Police Statioin, Jalna

by auto-rickshaw. PW-1 was referred to Civil Hospital,

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Jalna for treatment. Thereafter, he was referred to

Ghati Hospital, Aurangabad. On 24.05.1994, the statement

as above of the complainant [PW-1] was recorded in the

Ghati Hospital, Aurangabad, by ASI, Sadar Bazar Police

Station, Jalna. Treating the same as FIR, PSI Rathod

registered Crime No.149 of 1994 under section 307 read

with section 34 of the IPC against the accused. On the

same day at 9.15 pm, the investigation was handed over to

PSI Deshmukh [PW-10].

D] During investigation, PSI Deshmukh went to the

spot of incident. He drew panchanama of spot of incident

in presence of panchas Omprakash Sharma [PW-7] and Inder

Bhurewale [PW-8]. Then he recorded statements of Gopal

Kadape [PW-2], Atik Ahmed [PW4] and Anil Shete [PW-5].

He received medical certificate of injured PW-1. He

seized bloodstained clothes on the person of the

complainant, which was attached under seizure panchanama.

While the accused No.3 was in the custody, the

investigating officer recorded memorandum statement of

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accused No.3 and seized iron pipe at his instance, so

also he recorded memorandum statement of accused No.1

while he was in police custody and at his instance,

dagger was seized and panchanama was prepared.

Thereafter, he sent seized articles and clothes to the

chemical analyzer for analysis. After completion of

investigation, he filed charge-sheet against the accused

in the Court of Chief Judicial Magistrate, Jalna, who

committed the case to the Court of Sessions, as the

offence under section 307 of the IPC was triable by the

Sessions Court.

E] The charge was framed against the accused under

section 307 read with section 34 of the IPC, to which

accused pleaded not guilty and claimed to be tried.

Their defence is denial. In their statements under

section 313 of Code of Criminal Procedure, they have

stated that PWs 1 to 3 beat them and caused injuries and

filed false complaint against them.

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F]             The   prosecution   has   examined   10   witnesses   and 

relied upon panchanamas and injury certificate of PW-1.

The Trial Court on considering the evidence adduced by

the prosecution held that the prosecution has failed to

prove offence under section 307 read with section 34 of

the IPC against the accused and acquitted them of the

said offence by the judgment and order dated 31.05.1999.

Therefore, the appellant-State has filed present appeal,

against the said judgment and order.

3. We have heard learned APP appearing for the

appellant/State and the learned advocate appearing for

the respondents/accused. With their assistance, we have

perused the record, the evidence adduced by the

prosecution as well as the impugned judgment.

4. The learned APP has submitted that PWs 1,2 and 3

are the eye witnesses to the incident. Their evidence as

regards the role of accused Nos.1 and 2 in assaulting

PW-1 respectively by dagger and iron pipe is consistent.

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The said evidence is corroborated by Dr.Chavan [PW-6], as

he found stab injury on the abdomen of PW-1 and opined

that said injury is grievous injury and that it must have

been caused due to sharp edged object. The learned APP

further submitted that human blood was found on the

dagger and said weapon was seized at the instance of

accused No.1 by the investigating officer. Thus,

according to learned APP, even if PWs 4,5,7,8 and 9 have

not supported the prosecution, above referred evidence

was required to be accepted by the Trial Court. Thus, he

submitted that the view taken by the Trial Court

acquitting the accused is not correct and thus prayed to

convict and sentence the accused for the offences

charged, by allowing the appeal.

5. The learned Counsel appearing for the accused on

the other hand submitted that PWs 1,2 and 3 are not only

interested but related witnesses. The independent eye

witnesses PWs 4 and 5 have not supported the prosecution

case. Moreover, he submitted that on the same day of

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incident accused Nos.1 and 2 were assaulted and they

sustained injuries. Therefore, they were admitted in the

same hospital in which the complainant [PW-1] was

admitted. Accused No.1 filed complaint against PWs 1 to 3

alleging that they beat accused Nos.1 and 2. The said

case against PWs 1 to 3 was tried before Chief Judicial

Magistrate, Jalna and the prosecution witnesses were

acquitted. PWs 1 to 3 have showed ignorance of injuries

suffered by accused Nos.1 and 2. As such they have

suppressed the genesis of the prosecution case. In such

circumstances, according to learned Counsel appearing for

the respondents, when the independent witnesses have not

supported the prosecution case, the evidence of PWs 1 to

3 is not trustworthy and as such their evidence and

evidence of Dr.Chavan [PW-6] as well as evidence

regarding recovery of dagger at the instance of accused

No.1 on which human blood of specific group was not found

is not sufficient to hold accused guilty for the offence

with which they were charged. As such, according to

learned Counsel for the respondents, the view taken by

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the Trial Court acquitting the respondents of the offence

under section 307 read with section 34 of the IPC is

possible view and hence there is no ground to interfere

with the said view. Thus, he claimed to dismiss the

appeal.

6. Since this appeal is against the order of

acquittal, before examining the evidence, it is necessary

to refer to the decision of the Apex Court in the case of

Murlidhar alias Gidda and another Vs State of Karnataka,

2014(4) Mh.L.J. (Cri.) 353, in which the Apex Court has

given guidelines in the matter of appeal against

acquittal and in particular, the Apex Court in para-12

observed as under :-

"12. The approach of the appellate Court in the appeal against acquittal has been dealt with by this Court in Tulshiram 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. Agrawal Vs State of Maharashtra, AIR 1963 SC 200, Noor Khan Vs State of Rajasthan, AIR 1964 SC 286,

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Khedu Mohton Vs State of Bihar, (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, Bisan Singh Vs State of Punjab, (1974) 3 SCC 288, Umedbhai Jadavbhai Vs State of Gujrat, (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. Gopalkrishna, (2005) 9 SCC 291, State of Goa Vs Sanjay Thakran, (2007) 3 SCC 755 and Chandrappa, Chandrappa Vs State of 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 power 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 findings of fact recorded by the trial Court. It is so because the trial Court had an advantage of seeing the demeanor of the witnesses. If the

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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 of 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 evidence must not result in the interference by the appellate Court in the judgment of the trial Court."

7. To connect the accused with the offence under

section 307 read with section 34 of the IPC, the

prosecution has relied upon the evidence of following

categories.

(A) The evidence of eye witness PWs 1,2,3,4 and 5.

(B) The medical evidence of Doctor PW-6 and injury

certificate Exh.36 of PW-1.

(C)             The seizure of dagger at the instance of accused 





                                      ( 12 )                           crap363.99

No.1 as per memorandum panchanama [Exh.43] and seizure of

iron pipe at the instance of accused No.2 as per

memorandum panchanama [Exh.42] and seizure of clothes of

PW-1 having blood stains as per panchanama [Exh.41].

(D) The Chemical Analyzer's reports Exh. 45,46 and

47 regarding analysis of above said seized clothes and

the weapons.

8. Now we shall consider the evidence of eye

witnesses. PW-1-Radhakishan Kadape, who is injured and

one of the eye-witnesses stated that he knows all the

accused. The incident took place on 23.05.1994 at about

09.00 to 09.30 pm. Accused No.1 came to his hotel and

started insisting him to pay him Rs.300/- p.m., as

instalment (hafta). When he did not submit to his said

demand, he started beating him with fist blows and kicks.

He, thereafter, left the hotel. Then he [witness] went

to his father at home and informed him about the act

committed by accused No.1. PW-1 further deposed that his

father asked him that they would inform his [accused's]

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father about it. Therefore, when he, his father and

elder brother were proceeding towards house of accused

No.1 and when they were near Amarchhaya talkies, accused

No.1 came ahead of him and assaulted him [witness] with

dagger on his abdomen. Accused No.2 beat him on his head

with iron pipe. Accused No.1, thereafter, gave dagger to

accused No.3 and he beat him with fist blows. He stated

that his father was trying to rescue him from accused

No.1, PW-4-Atik Ahmed also made attempt to rescue him

from accused No.1. Thereafter, they went to Police

Station, Sadar Bazar, Jalna. Then, he was referred to

Civil Hospital for treatment and from Civil Hospital, he

was referred to Ghati Hospital, Aurangabad. His

statement [Exh.26] was recorded by ASI, Sadar Bazar

Police Station. He stated that he cannot say whether

Article No.4-dagger shown to him is a dagger used by

accused No.1, when said accused stabbed him. According

to him pant, baniyan and half shirt were on his person.

Baniyan and half shirt were bloodstained. They were

produced when he was in hospital at Aurangabad and said

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article Nos.1 and 2 shown to him are the same. He stated

that he was admitted in hospital at Aurangabad for 23

days as indoor patient.

9. In the cross-examination, PW-1 stated that

accused No.1 never had been to his hotel to demand money

prior to the date of incident. At the time of incident in

the hotel, there were 5-6 customers. Accused No.1 came

to him to demand money as tribute and the said accused

had been to his hotel to have tea as well as to demand

money. He stated that his house is behind Gopal Tea

House. His brother occupied his seat in hotel when he

went to house. Gopal [PW-2] - his brother accompanied

him to go to house after the incident in the hotel. He

stated that the incident took place to the Northern side

of Amarchhaya Talkies. He stated that he does not

remember whether father of accused No.1 had also come

there. He states that there was no altercation between

them and accused at that time. There was no dispute

between him and accused No.1 prior to the date of

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incident. He stated that he does not remember that

accused No.1 had any enmity with other family members.

Accused No.1 did not request for any hand loan in the

hotel. He stated that when there was beating to him near

Amarchhaya Talkies, there was darkness. Beating to him

near talkies might have taken place for 5-10 minutes,

after there was assault on him at their hotel. He stated

that dagger article No.4 shown to him was not in the

hands of accused No.1 at the time of incident. So also he

stated that iron pipe article No.5 before the Court is

not the pipe with the help of which he was beaten by

accused No.2. According to him, he has sustained bleeding

injuries due to beating to him with the help of pipe and

he did show head injury to the Doctor at Jalna as well as

Doctor at Ghati Hospital, Aurangabad.

10. P.W.1-Radhakisan Kadape further stated in the

cross-examination that he did not inform police at Sadar

Bazar Police Station as to who beat him. So also he

stated that neither his father Tarachand [PW-3] nor his

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brother Gopal [PW-2] filed complaint at Sadar Bazar

Police Station, when they were with him, when he had been

to police station. He denied that neither accused No.1

nor accused No.2 beat him near Amarchhaya Talkies.

11. From the above evidence of PW-1, it is clear

that immediately after the incident he along with his

brother Gopal [PW-2] and father [PW-3] went to Sadar

Bazar Police Station, Jalna on the date of the incident

i.e. on 23.05.1994, but neither he nor his father or

brother informed police as to who beat him. In-fact,

they should have informed the police about the incident

of assaulting them or PW-1 by the accused, at the

earliest point of time after the incident. PW-1's

statement [Exh.26] was recorded on 24.05.1994 at Ghati

Hospital, Aurangabad i.e. on the next day of incident at

about 21=15 hours and treating the same as First

Information Report, crime was registered against the

accused. Considering the fact that the incident had taken

place on 23.05.1994 at 09.30 p.m. and FIR was lodged on

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24.05.1994 at 21=15 hours, it is clear that there was

delay of one day or 24 hours in lodging the FIR against

the accused. In-fact, when such serious incident had

taken place, PW-1 or his brother PW-2 or his father PW-3

was required to lodge FIR immediately. The prosecution

has not explained the said delay in lodging the FIR. In

the said FIR, it is stated that the accused beat PW-1 and

his father PW-3. PW-1 has not stated that accused

assaulted his father PW-3 as alleged in the FIR. In-

fact, when his father was assaulted by the accused, as

alleged in the FIR, PW-1 could have definitely deposed so

in the Court. Therefore, when the evidence of PW-1 is

not consistent with the contents of FIR and there was

delay of 24 hours in lodging the same, before accepting

or rejecting the evidence of PW-1, evidence of other eye

witnesses and circumstantial evidence will have to be

considered.

12. PW-2 - Gopal who is brother of PW-1 has stated

that the incident took place on 23.05.1994 at about 09.00

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to 09.30 p.m. Accused No.1 had been to their hotel to

have a tea. At that time he was present in the hotel

along with PW-1. Accused No.1 started asking PW-1 to pay

him Rs.300/- as a tribute. He was claiming himself to be

Dada of Jalna. PW-1 questioned him as to why he should

pay him money. Accused No.1, thereafter, started beating

PW-1 with fist blows and kick. Accused No.1, thereafter,

left the hotel.

13. As regards the main incident, PW-2 has further

deposed that he and his brother PW-1, thereafter, went to

their house and informed about the incident in the hotel

to their father [PW-3]. Their father informed them that

they would inform about all these facts to the father of

accused No.1. Further, he stated that his father, PW-1

and he [PW-2] left their house to go to the house of

accused No.1. When they were proceeding in the lane near

Amarchhaya Talkies, all the accused came in front of

them. Accused No.1 took dagger from hands of accused

No.3 and beat his brother [PW-1] on his abdomen. When

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his father [PW-3] went ahead to rescue PW-1, accused

No.2-Bholu beat PW-1 on head with iron pipe. His father

hired one rickshaw. They took their brother [PW-1] in

the rickshaw and then they all the three came to police

station by rickshaw. Police referred PW-1 and him to

Civil Hospital, Jalna for treatment. They gave some

preliminary treatment to his father. PW-1 was then

referred to Ghati Hospital at Aurangabad.

14. In the cross-examination PW-2 stated that they

might have met accused near the talkies when they were on

the northern side of the talkies. There was darkness at

the said spot, when the incident took place. There was

no altercation between him and the accused. His brother

did not become unconscious after sustaining injury by

dagger on his stomach. He stated that he and his father

[PW-3] reported the matter to police when they all had

been to police station. The police recorded their

statements and referred his brother [PW-1] to Civil

Hospital for treatment. He has denied that there was

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quarrel between his brother [PW-1] and accused No.1 at

carom club. Further, he has denied that PW-1 beat

accused No.1 and that accused No.1 started running and

he, his brother [PW-1] and father chased him. He has

denied that they caught hold accused No.1 near the

western side of the talkies and beat him.

15. On perusal of evidence of PW-2, he claims to be

eye witness to the incident of assaulting his brother -

PW-1. As referred earlier PW-1 has stated that he, his

father [PW-3] and brother [PW-2] were proceeding to the

house of accused No.1 and when they were near Amarchhaya

Talkies, the incident took place. In the FIR Exh.26

filed by PW-1, PW-1 has simply stated that he and his

father were proceeding towards house of accused No.1, by

the side of Amarchhaya Talkies and while they were

proceeding, all the accused started assaulting him and

his father [PW-3]. In the FIR it is not mentioned that

when PW-1 and PW-3 were proceeding towards the house of

accused, PW-2 had accompanied them. Moreover, as

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referred earlier PW-1 has simply stated that his father

[PW-3] was trying to rescue him from accused No.1 and he

has not stated in accordance with the contents of FIR

that accused assaulted his father. Moreover, PW-2 has

not stated that accused beat his father PW-3, as

mentioned in the FIR. He simply stated that his father

hired rickshaw to go to Hospital. Had it been the case

that his father was really beaten by the accused as

mentioned in the FIR, he would have definitely stated in

that respect. Therefore, when there is no consistency in

the evidence of PW-1 and PW-2 as referred above and when

PW-2 has not claimed that when accused assaulted his

father [PW-3] and his brother [PW-1], he tried to rescue

them, which he was expected to do it in normal

circumstances. Thus, the conduct of PW-2 of not

intervening to rescue his father and brother, when they

were allegedly assaulted by the accused, is unnatural

conduct and when he does not state that any of the

accused assaulted him or caused him any injury, his

presence on the spot of incident at the material time of

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assaulting his brother [PW-1] is doubtful.

16. As mentioned earlier, according to PW-2, they

[he and his father] took his brother PW-1 to police

station by rickshaw and police referred PW-1 to Civil

Hospital, Jalna for treatment. Moreover, as mentioned

earlier he stated that he and his father reported the

matter to the police when all of them had been to police

station. He stated that police recorded their statements

and then referred his brother to Civil Hospital for

treatment. Said statements which were recorded by police

are not produced on record. In-fact, said statements

were the statements first in time, as immediately after

the incident on 23.05.1994 PW-2, PW-3 and PW-1 had been

to police station and PW-1 was in injured condition.

While as noted earlier PW-1 has stated that when he along

with PW-2 and PW-3 went to Sadar Bazar Police station

after the incident, none of them informed police at Sadar

Bazar Police Station as to who beat him and that he does

not know whether police reduced said information into

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writing. So also he stated that neither his father nor

his brother PW-2 had complained in Sadar Bazar police

station. PW-2 stated that PW-1 did not become

unconscious after sustaining injury to abdomen. If it

was so, it was possible for him to disclose incident to

police. Thus, it is clear from evidence of PW-1 and PW-2

that either all of them are telling lie about disclosing

incident to the police or recording of statement of PWs 2

and 3 by police. Therefore and when the prosecution has

not produced statements of PW-2 and PW-3, which were

recorded by police immediately after the incident, when

they along with PW-1 had gone to the police station, the

evidence of PW-1 and PW-2 is not trustworthy.

17. The evidence of PW-3 - Tarachand - father of PWs

1 and 2 is that he was at his house at about 9=00 to 9=30

pm on 23.05.1994 i.e. on the day of incident. PW-1 came

to him and informed him about the act committed by

accused No.1. He asked his son PW-1 that they would

inform father of accused No.1 about the matter. He along

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with PW-1 and PW-2 were proceeding to the house of

accused No.1, when they came near Amarchhaya Talkies,

accused No.1 took dagger in the hands of Umesh and came

running on his son - PW-1 and stabbed PW-1 on his

abdomen. Accused No.1 beat PW-1 on his hand with iron

pipe. He caught hold accused Nos.1 and 2. PW-2 went to

get rickshaw for PW-1. PW-2 came with rickshaw and all

of them came to police station in rickshaw. Police

referred PW-1 to Civil Hospital, Jalna and then PW-1 was

referred to Ghati Hospital, Aurangabad for treatment. He

stated that Article No.5 - iron pipe and Article No.4 -

dagger are the same.

18. PW-3 has not stated as alleged in the FIR that

the accused started beating him after coming to the spot

of incident. His evidence that he caught hold accused

No.1 and PW-2 went to get rickshaw for PW-1 is not

corroborated by PWs-1 and 2, as they have not stated

anything in this respect. On the contrary as referred

earlier, evidence of PW-2 shows that this witness [PW-3]

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his father hired one rickshaw and brought rickshaw there,

which evidence is of-course contrary to the evidence of

PW-3 that PW-2 came with rickshaw. If this witness would

have seen the incident, he would have definitely stated

that along with PW-1, he was assaulted by accused as

stated in the FIR [Exh.26] and his evidence would have

been consistent with the evidence of his son PW-2

regarding bringing rickshaw by him and not by PW-3.

19. It has further come in the cross-examination of

PW-3 that at the material time of incident, he took PW-1

with him, so that PW-1 can tell father of accused No.1 as

to what had happened in detail in the hotel, earlier to

the incident in question. This shows that PW-2 - son of

this witness was not with him and his another son PW-1 at

the time of incident near Amarchhaya Talkies.

20. In the cross-examination PW-3 stated that he did

not inform police as to who beat his son PW-1. Police

reduced his statement into writing. He stated that his

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statement was recorded on 24.06.1994. Admittedly, said

statement of PW-3 is not produced on record by the

prosecution. In-fact, when according to PW-3 his

statement was recorded on 24.06.1994 i.e. on the next day

of incident, it was necessary to be produced to know

whether PW-3 is deposing as per the incident happened and

to know about truth of the incident. Surprisingly, said

statement of the PW-3 is not produced and the FIR is the

statement of PW-1 dated 25.06.1994 [Exh.26], the delay of

which is not explained by the prosecution as observed

earlier. Therefore, the evidence of PW-3 does not inspire

confidence that he witnessed the incident as alleged.

21. It is the defence of the accused that there was

quarrel between PW-1 and accused No.1. PW-1 beat accused

No.1 and started running, then PW-1 chased him and pelted

stone on him and so also PW-3, PW-1 and PW-2 beat accused

No.1 and accused No.2 near Amarchhaya Talkies. Both

accused Nos.1 and 2 sustained injuries. PWs.1,2 and 3

stated that they do not know whether accused Nos.1 and 2

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were admitted in the same ward in which PW-1 was admitted

in Ghati Hospital, Aurangabad. So also, PW-1 admitted

that accused No.1 did file complaint against him, his

father and brother alleging that they beat accused Nos.1

and 2. So also he admitted that he, his father [PW-3] and

brother [PW-2] are acquitted in the said case filed by

accused No.1, by the Chief Judicial Magistrate, Jalna.

22. It has come in the evidence of PW-6 - Dr. Chavan

that he was on duty as a Medical officer at Civil

Hospital, Jalna on 23.05.1994 at about 11=00 p.m. and at

11=10 pm, patient Radhakishan Kadape [PW-1] was referred

to him by police for examination and treatment and on

that day at 11=30 pm he examined accused No.1-

Gaurishankar and found injuries i.e. CLW on scapula - 2 x

1 cm, CLW over left shoulder 1 x ½ cm, CLW over left

shoulder ½ x ½ cm, CLW over left forehand 2 x 1 cm., CLW

over left forehand 2x½ inch x 2 cm and CLW over right

parietal region 3 inch x 2 cm. All injuries were fresh

and must have been caused within 24 hours and the injury

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on parietal region and scalp are on the vital part of

body. So also he stated that he also examined accused

No.2-Bhola Shankar and found injuries on his person,

namely (1) CLW over left parietal region 6 inch x 1 cm

deep (2) abrasion on left arm 10 inch x ½ mm (3)

contusion over knee joint 1 x 1 cm. He stated that all

said injuries were fresh and caused within 24 hours. He

deposed that he stated about injuries on the person of

accused on the basis of MLC register of Civil Hospital,

Jalna brought by him on that day with him. Thus, it is

clear from the above evidence that on 23.05.1994 i.e. on

the day of incident at 11.30 pm accused Nos. 1 and 2 were

brought in the Civil Hospital, Jalna and on examination

the Doctor [PW-6] noticed injuries, on the person of the

said accused, including injury on parietal region and

scalp on vital part of body of accused No.1. As stated

earlier, PWs 1,2 and 3 have showed their ignorance about

the injuries on the person of accused Nos.1 and 2 and

also in respect of the fact that on the same day i.e. on

23.05.1994 accused Nos.1 and 2 were admitted in Civil

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Hospital, Jalna in the ward in which PW-1 was admitted.

This shows that they have suppressed genesis of the

incident. In-fact, these witnesses and the prosecution

should have explained as to how accused Nos.1 and 2

suffered injuries and particularly how accused No.1

suffered injuries on the vital part of his body. But, no

such explanation has been given by the prosecution about

the injuries on the person of accused Nos.1 and 2.

Therefore, when the prosecution has not given explanation

of injuries sustained by the accused, it creates doubt

about the evidence of eye witnesses PWs-1,2 and 3. So

also said witnesses are related and interested witnesses

as PWs 1 and 2 are sons of PW-3. Therefore, the

inconsistent evidence of said witnesses about assaulting

PW-1 by accused No.1 and accused No.2 by dagger on

abdomen and accused No.2 on his head by iron pipe and

causing injuries to him is not trustworthy, in view of

law laid down by the Apex Court in the case of Lakshmi

Singh and others etc. Vs. State of Bihar, AIR 1976 SC

2263, relied upon by the learned Counsel appearing for

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the accused/respondents, wherein in para 11, the Apex

Court has observed as under :-

"It seems to us that in a murder case, the non- explanation of injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

23. The next eye witness is [PW-4] Atik Ahmed

Madani, who allegedly witnessed the incident as claimed

by PW-1 and mentioned in the FIR [Exh.26] lodged by him.

This witness has not supported the prosecution case as he

has denied that at about 10=00 pm on 23.05.1994 he was

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proceeding towards his house and he heard hue and cry

near Amarchhaya Talkies and there he saw accused Nos.1

and 2 as well as accused No.3 beating PW-1 and as he has

denied portions marked "A" and "A1", which portion marks

are, of course, proved by PW-10 PSI Deshmukh - the

investigating officer. However, truth of said portion

marked is not proved, as PW-4 has denied the same.

Therefore, said portion marks are of no help to the

prosecution to hold that the accused assaulted PW-1 as

alleged.

24. As regards evidence of eye witness PW-5 - Anil

Shete, he has also not supported the prosecution, as he

has denied that at about 10.00 p.m. on 23.05.1994 he was

proceeding towards his house and he heard hue and cry

near Amarchhaya Talkies and he saw accused Nos.1 and 2 as

well as accused No.3 beating PW-1 and that accused No.2

was having iron pipe with him and he beat with it on the

head of PW-1 and as he has denied that in his presence

accused No.1 stabbed PW-1 on his abdomen and denied

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portions marked "A" to "A1" in this respect. These

portion marks in his statement before police are, of

course, proved by PSI Deshmukh [PW-10] as per Exh.50.

But as PW-5 has denied portion marks Exh.50, the truth of

said portion marks Exh.50 is not proved. Therefore, said

portion marks Exh.50 is of no help to the prosecution to

hold that accused assaulted PW-1 as alleged. Thus, the

evidence of both PWs 4 and 5 is of no help to the

prosecution to connect the accused with the act of

assaulting PW-1 on his abdomen and head as alleged.

25. Now coming to the medical evidence of Dr. Chavan

[PW-6], who was Medical Officer in Civil Hospital, Jalna,

he has stated that at 11.10 pm on 23.05.1994, PW-1 was

referred to him by police for examination and treatment.

According to him, on examination, he found stab injuries

on his [PW-1's] abdomen 4 x 2 cm. It was deep

perforated. He gave preliminary treatment to the patient

and called General Surgeon. Said injury in his opinion

must have been caused by sharp edged object and

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accordingly he issued injury certificate Exh.36.

26. In the cross-examination, Dr. Chavan stated that

patient PW-1 was completely conscious. The intestine has

not come out. The injury noted on the patient was not

perforated one but it was skin deep. Exh.36, injury

certificate of PW-1 shows injury on his person as deposed

by Dr. Chavan. The certificate does not show that PW-1

disclosed to Dr. Chavan about the cause of injury found

on his person. In-fact, when Dr. Chavan stated that PW-1

was in complete consciousness, it was possible for PW-1

to even suo-moto disclose to Dr. Chavan that he suffered

injury due to assault on him by accused No.1 by dagger.

But, when PW-1 has not stated the same to the Doctor, it

appears that he suppressed the genesis of the incident.

The injury noticed on the person of PW-1 was grievous as

mentioned in the certificate and it was caused by sharp

and pointed object.

27. Now it is to be seen whether accused No.1 caused

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above said injury to PW-1 by the dagger as claimed by the

prosecution. As stated earlier, PW-1 has stated that he

cannot say whether Article-4 dagger shown to him was used

by accused No.1, when he was stabbed, while his father

[PW-3] stated that article No.4 dagger shown to him is

the same with which PW-1 was stabbed by accused No.1.

Thus, there is no consistency in the evidence of PW-1 and

PW-3 regarding identity of seized article No.4-dagger.

It is pertinent to note that Dr.Chavan [PW-6] was not

shown the dagger when his evidence was recorded. In-

fact, it was necessary to show him the said dagger to

bring on record that the injury on abdomen as mentioned

in the injury certificate Exh.36, which was noticed on

the person of PW-1 by the Doctor was possible by dagger-

article No.4, seized by police. Therefore, in the above

circumstances, it cannot be said beyond doubt that injury

found on the person of PW-1 was caused by seized article

No.4-dagger and the evidence of Dr.Chavan that said

injury must have been caused by sharp edged object is not

sufficient to conclude that it was caused by the seized

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dagger. Therefore, merely because Dr.Chavan noticed

injury on the person of PW-1 as observed above, it cannot

be said beyond doubt that it was caused by accused No.1

by the seized dagger Article No.4 by the accused No.1.

28. Now coming to the circumstantial evidence relied

upon by the prosecution, it is the case of the

prosecution that after recording statement of accused

No.3, iron pipe was seized at his instance as per

memorandum panchanama [Exh.42] and after recording

statement of accused No.1, dagger was seized at his

instance as per memorandum panchanama [Exh.43], in

presence of panchas Bhairulal Sharma and Sham Thakare

[PW-9]. PW-9 - panch has not supported the prosecution

case, as he has denied that above referred articles were

seized at the instance of accused, as alleged by the

prosecution. The prosecution has not examined another

panch - Bhairulal sharma. The Investigating Officer - PSI

Deshmukh, has, of-course, stated regarding seizure of

iron pipe at the instance of accused No.3 and seizure of

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dagger at the instance of accused No.1, as per memorandum

panchanamas Exhs.42 and 43 referred above. But, when PW-

9 has not supported the prosecution case and when as said

earlier PW-1-injured who was allegedly assaulted by

accused No.1 by the dagger has not identified the dagger,

the uncorroborated evidence of PSI - Deshmukh regarding

seizure of articles iron pipe and dagger is not

sufficient to state that the prosecution has proved the

seizure of iron pipe-article No.5 and dagger-article No.4

at the instance of accused Nos.3 and 1, beyond reasonable

doubt. Therefore, it cannot be said that the dagger-

article No.4 was used by accused No.1 for assaulting PW-1

and iron pipe article No.5 was used by accused No.2 to

assault PW-1. Therefore, above said circumstantial

evidence of seizure of dagger and iron pipe is of no help

to the prosecution to connect the accused with the crime.

29. So also, the prosecution has relied upon the

circumstance of seizure of clothes i.e. Shirt, Sando

Baniyan and Pant of PW-1 having bloodstains, as per

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panchanama Exh.41, in presence of above said panchas.

Panch - Sham Thakare [PW-9] has not supported the

prosecution case and another panch Bhairulal Sharma is

not examined by the prosecution. PSI Deshmukh, of-

course, has stated about the seizure of clothes of PW-1

as per panchanama [Exh.41], but when the panch as above

has not supported the prosecution case and another panch

is not examined, the uncorroborated evidence of PSI

Deshmukh is not sufficient to state that clothes on the

person of PW-1 were seized. Assuming for the sake of

argument that said clothes and articles iron pipe and

dagger were seized, as alleged by the prosecution, it is

necessary to see whether seizure of said articles is of

any help the prosecution.

30. The next circumstance relied upon by the

prosecution is reports of chemical analyzer Exhs.45,46

and 47 regarding analysis of above said seized clothes

and weapons, which were having bloodstains. The CA report

Exh.45 is regarding analysis of clothes of PW-1 and it

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shows that on the half-shirt and baniyan, human blood was

detected and group of human blood found on half shirt was

"AB" and group of some blood was "B". It further shows

that group of blood found on Sando baniyan was "AB". The

CA report Exh.47 shows that group of blood of PW-1 as per

sample of blood [Exh-2] was "AB" and group of blood of

[Exh-1] could not be determined as the results are

inconclusive. Thus, it appears that "AB" was the blood

group of PW-1 and blood of same group was found on his

seized half-shirt. Exh.46 is the CA report in respect of

analysis of blood found on dagger [Gupti] and it shows

that blood detected on the said dagger was of human blood

and group of blood could not be determined as results are

inconclusive. The blood of "AB" group was not found on

the dagger which is blood group of PW-1. Therefore,

merely because human blood was found on the seized

dagger, it cannot be said that said dagger was used by

accused No.1 in assaulting PW-1 on his abdomen and

accused No.1 caused grievous injury to abdomen of PW-1.

Therefore, the CA reports Exh.45 to 47 are of no help to

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the prosecution to connect any of the accused with the

act of assaulting PW-1 by the dagger as alleged by the

prosecution.

31. Upon considering the above discussed evidence

adduced by the prosecution, we have come to the

conclusion that the material evidence of eye witnesses

PWs 1,2,3 and injury certificate [Exh.36] of PW-1 as well

as circumstantial evidence discussed above are not

sufficient to hold beyond doubt that the accused No.1

caused grievous hurt to PW-1 by stabbing him with dagger

on his abdomen and as noted earlier there is substance in

the defence of the accused. As such, on properly

appreciating evidence adduced by the prosecution, the

Trial Court has rightly held that the prosecution has

failed to prove the offence punishable under section 307

read with section 34 of the IPC against the accused and

rightly acquitted the accused of the said offence by the

impugned judgment and order. In that view of the matter,

we hold that the view taken by the Trial Court is a

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reasonably possible view and the findings recorded by the

Trial Court are in consonance with the evidence adduced

by the prosecution. So also, it is not the case that

there is error in appreciating evidence by the Trial

Court. Therefore, on scrutiny of the entire evidence, we

hold that the prosecution has failed to prove beyond

doubt the offence against the accused with which they

were charged. Thus, there is no reason to interfere with

the impugned judgment and order. Therefore, the appeal

being devoid of merits, the same is liable to be

dismissed. Accordingly, we dismiss the same. The bail

bonds of the respondents/accused shall stand cancelled.

32. Mr.A.K Bhosale, learned Advocate was appointed

to represent the respondents/accused. We appreciate his

able assistance in deciding the matter. We quantify his

fees at Rs.7500/- (Rupees Seven Thousand Five Hundred).

       [S.M.GAVHANE,J.]                        [S.S. SHINDE,J.]
snk/2017/JUN17/crap363.99