Bombay High Court
Badrinath Rajaram Sable vs Sopan Banshi Khalge And Others on 23 June, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 247 OF 1999
The State of Maharashtra,
Through P.S.O. Police Station,
Dindrud, Tq. Majalgaon, Dist. Beed.
...APPELLANT
-VERSUS-
1. Sopan S/o Banshi Khalge,
Age : 35 yrs, Occu. Labour,
R/o. Pimparkhed, Tq. Majalgaon,
Dist. Beed.
2. Shrawan S/o Banshi Khalge,
Age : 25 yrs, Occu. & R/o. As above.
...RESPONDENTS
...
Mr. S.J. Salgare, APP for Appellant/State.
Mr. K.D. Bade Patil, Advocate for Respondent Nos.1 and
2.
...
WITH
CRIMINAL REVISION APPLICATION NO. 122 OF 1999
Badrinath S/o Rajaram Sable,
Age : 35 years, Occu. Agriculture,
R/o. Pimparkhed, Taluka Majalgaon,
District Beed.
...APPLICANT
-VERSUS-
1. Sopan S/o. Banshi Khalge,
Age : 35 years, Occu. Labour,
R/o. Pimparkhed, Tq. Majalgaon,
District Beed.
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2. Shrawan S/o Banshi Khalge,
Age : 25 years, Occu. Labour,
R/o. Pimparkhed, Tq. Majalgaon,
District. Beed.
3. The State of Maharashtra,
Through P.S.O. Police Station,
Dindrud, Tq. Majalgaon,
District. Beed.
...RESONDENTS
...
Mr. V.D. Salunke, Advocate for the applicant.
Mr. K.D. Bade Patil, advocate for Respondent Nos.1 and
2.
Mr. S.J. Salgare, APP for R/3-State.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 7th JUNE,2017.
DATE OF PRONOUNCING JUDGMENT: 23rd JUNE, 2017.
JUDGMENT (PER S.S. SHINDE, J.):
Criminal Appeal no. 247 of 1999 is filed
by the State and Criminal Revision Application
no.122 of 1999 is filed by the original informant,
challenging the Judgment and Order dated 29th
January, 1999, passed by 4th Additional Sessions
Judge, Beed in Sessions Case No.86 of 1994,
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thereby acquitting Respondent nos.1 and 2
(original accused nos. 1 and 2), from the offence
punishable under Section 302 of the Indian Penal
Code (for short "I.P. Code").
2. The prosecution case in nut-shell, is as
under:-
A) On 5th October, 1990 at about 3.30 to 4.00
p.m., when the informant Badrinath Rajaram Sable,
resident of Pimparkhed, Tq. Majalgaon, Dist. Beed
was sitting alone in his agricultural land near
his Saw Mill, he heard commotion from the hutment
area of the road, which is near the hut of one
Asaram Sambhaji Athwale. The commotion was going
on amongst some persons. The informant heard the
shouts as "Melore Mala Vachva, Dhava, Dhava" (i.e.
save me, I am dying). The informant rushed to
that spot. On seeing him the present accused and
three others, namely Annasaheb Sable, Ashok
Annasaheb Sable and Raosaheb Bhanudas Nipte ran
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away. Ashok and Raosaheb were having knives,
while the present accused and Annasaheb were armed
with sticks. When the informant came in front of
the hut of Asaram Athwale, he saw his father
namely Rajaram Keshavrao Sable lying on the road.
The informant asked him as to what had happened,
thereupon injured Rajaram told that the present
accused and other three persons named above beaten
him by means of sticks on the ground that the
criminal cases filed by Rajaram himself and the
informant against them, should be withdrawn. The
younger brother of the informant namely Datta had
immediately followed him to the spot of incident.
B) Thereafter, the informant asked Datta to
call their agricultural servants, namely, Ashok
Namdev Dhage, Jaganath Maruti Sable, Vishnu
Mahadev Sable and the brother, Rameshwar. Then
Parmeshwar brought the tractor and trolley
belonging to injured Rajaram. Thereafter, he
shifted in trolley by the agricultural servants
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and the informant. He was taken to Wadwani in
that tractor and then from Wadwani in the jeep to
the District Hospital, Beed. The injured Rajaram
reached the District Hospital, Beed at about 7.00
p.m. and the Medical Officer after examination
declared him dead.
C) The Medical Officer gave intimation to
the Police Station, Beed (City) about the
unnatural death of Rajaram. P.S.I. Kanade went to
the District Hospital, Beed and recorded the
statement of the informant Badrinath, which came
to be treated as the First Information Report.
Thereafter, the said crime was registered in
Police Station Beed (City) by zero number, since
the spot of incident was within the local limits
of Dindrud Police Station. The said crime was
referred to the Police Station Dindrud. On that
report, Crime No.105 of 1990 came to be registered
in Police Station, Dindrud for the offences
punishable under Sections 147, 148, 302 read with
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Section 149 of the I.P.C.
D) The inquest panchnama was prepared and
the postmortem was carried out and the necessary
inquest panchnama was done. The clothes on the
person of deceased were seized. Thereafter, the
Investigating Officer sent the inquest panchnama,
seized clothes, seizure panchnama in respect of
the clothes of deceased Rajaram and the
provisional death certificate of deceased Rajaram
to the Police Station, Dindrud along with the
report.
E) The Investigation Officer conducted the
investigation, prepared spot panchnama and
recorded the statement of the witnesses. It was
transpired during the investigation that the
present accused and the three others were involved
in the said incident. The Investigating Officer
could not arrest the present accused, as they were
absconding since the date of incident.
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F) The Investigating Officer collected the
plain earth and blood smeared earth from the spot
of incident and sent it along with clothes of
deceased Rajaram to Chemical Analyzer for chemical
analysis. P.S.I. Pathan received the reports of
the Chemical Analyzer in respect of those
articles. Thereafter, after completion of the
investigation, the P.S.I. Pathan submitted charge-
sheet against the other three accused persons on
3rd January, 1991 by showing the present accused as
absconding.
G) Thereafter, accused no.1 was arrested on
8th July, 1994, while accused no.2 was arrested on
17th July, 1994. After their arrest, a
supplementary charge-sheet came to be filed
against them in the Court of Judicial Magistrate,
First Class, Majalgaon on 20th July, 1994 for the
aforementioned offences.
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H) The case being exclusively triable by the
Court of Sessions, the Magistrate committed the
said case to the Sessions Court.
I) A charge for the offence punishable under
Section 302 read with 34 of the I.P. Code was
framed and explained to all the accused persons.
The accused persons pleaded not guilty and claimed
to be tried. As per the defence of the accused,
due to previous rivalry, they have been falsely
implicated in the said offence. They also totally
denied that, they were absconding.
3. After recording the evidence and
conducting full fledged trial, the Trial Court
acquitted all the accused persons from the offence
punishable under Section 302 of the I.P. Code.
Hence this Appeal by the State and Criminal
Revision Application by the original informant.
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4. We have heard the learned A.P.P.
appearing for the appellant and the learned
counsel appearing for the respondents at length.
With their able assistance, we have carefully
perused the entire evidence.
5. At the outset, it is necessary to make
reference to Criminal Appeal No. 93/1993, which
was filed by the State before the High Court,
seeking leave to file appeal against co-accused
Annasaheb Anatrao Sable, Ashok Annasaheb Sable and
Raosaheb Bhanudas Nipte. In the said matter, the
High Court had refused leave to file appeal and
confirmed the judgment and order of acquittal
passed by the trial Court. It appears that, with
detail reasons, the judgment and order dated 28 th
September, 1992, which was passed in case of
aforementioned co-accused, who were separately
tried, has been confirmed by the High Court.
6. Be that as it may, since the present
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respondents, who were separately tried and
acquitted, and against the said judgment and order
the State's Appeal is admitted, we proceed to
consider the said appeal on its own merits.
7. Prosecution has not examined the Medical
Officer, who examined deceased Rajaram, who opined
the cause of death of deceased Rajaram as
"Cordiorespiratory failure due to Head injury ē
Intracranial haemorrhage c multiple injuries over
body due to blunt & hard weapon". However, the
prosecution did not examine the Medical Officer.
His evidence was also considered by the trial
Court in separate trial of co-accused - Annasaheb,
Ashok and Raosaheb and co-accused were acquitted.
8. The prosecution examined Vaijnath
Fakirrao Jadhav as PW-1. He was examined to prove
the inquest panchnama. The another panch Rustum
was also examined. He stated in cross-examination
that he is close relative of Badrinath and
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Narayan.
9. The prosecution examined Mahadev Vithoba
Sable as PW-2, who also acted as a panch for
drawing the panchnama of place of incident. He
stated that, there was pool of blood on the spot.
The said place was the house of Baburao Dhage. He
stated further details about the manner in which
the panchnama was carried out and prepared. He
stated that, he know Rajaram Sable. He owned the
fields known as "Sheri" and "Gabar". At a distance
of 75 feet from the house of Baburao Dhage, there
is a field known as "Sheri". The field known as
"Gabar" is at a distance of 100 feet from the
house of Baburao Dhage. There was Saw-Mill in the
field known as "Gabar". He further stated that, he
heard voice "Melo Re Baba" and on hearing the said
voice, which is of Rajaram Sable, he went to the
house of Baburao Dhage. At that time, he noticed
that Sopan, Shravan, Annasaheb, Ashok and Raosaheb
were assaulting Rajaram Sable with sticks. The
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wife of Rajaram namely Kisnabai, son Badrinath,
one Girjabai and Asrabai were present there. Then
he stated other details about the manner in which
Rajaram was beaten by the accused.
On scrutiny of evidence of this witness,
the same runs contrary to the evidence of the
other witness namely, Vaijinath Jadhav [PW-1], who
has not stated that, the aforementioned persons
were assaulting deceased Rajaram.
10. However, during his cross-examination, he
stated that he does not remember as to after how
many days of the death of Rajaram his statement
was recorded by the police. His statement was
recorded first time before the Court. He cannot
tell the reason why his version "Melo Re Baba" is
not recorded by the police. He stated that, it did
not happen that on that day, we had heard
commotion from the village. He cannot tell reason
as to why the police mentioned in his statement
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that, they heard commotion only from the side of
the village. He stated before the police that, he
had heard the voice of the deceased Rajaram, but
he cannot tell the reason why the said statement
is not appearing in his statement before the
police. He denied the suggestion that, he heard
the shouts of deceased Rajaram as "Melo Re Baba".
He stated that, on the date of the incident he
completed sowing in his field, which is towards
the north of the village.
11. He further stated that, it did not happen
that when he along with Asaram Dhage were coming
towards the village, they found deceased Rajaram
lying on the road facing downwards in front of the
house of Ashrubai. He stated that, he did not
state the portion mark `A' and `B' of his
evidence before the police, but he cannot tell as
to why police mentioned the said portion in the
statement before the police. He stated before the
police that, they had noticed Sopan, Shravan,
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Annasaheb, Ashok and Raosaheb assaulting the
deceased Rajaram Sable with sticks but he cannot
tell why the said fact is not mentioned in the
statement before the police. He stated before the
police that when Asaram and he himself went near
the hut of Baburao Dhage, Kisnabai Badrinath,
Girjabai and Asrabai were present there, but
police did not mention the said fact in his
statement. He stated before the police that the
assailants were assaulting on the face, head and
back of the deceased Rajaram, but he cannot tell
why the said statement is not appearing in the
evidence before the police. He stated before the
police that, Sopan gave a blow of stick on the
head of Rajaram and due to that bleeding injury
was sustained by the deceased Rajaram and he fell
down, but he cannot tell the reason why the said
statement is not appearing in his statement before
the police. During cross examination, he stated
that, accused Sopan and Shravan are the sons of
Bansi Khalge. The accused are residing at Pune
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since last eight years. They used to visit
village Pimparkhed intermittently. He denied the
suggestion that, the accused are residing at Pune
since last ten to twelve years. He also denied
the suggestion that, he was serving with deceased
Rajaram and that he is a near relative of the
deceased Rajaram, and therefore, he is deposing
false against the accused. He denied the
suggestion that, he did not know anything about
the incident and deposing falsely on the say of
Badrinath Sable. He stated that, at the time of
preparing spot panchnama Exh.20, he himself and
one Dnyanoba Dhangar were present.
Since, the evidence of this witness suffers
from serious omissions and also improvements and
therefore, rightly disbelieved by the trial Court.
12. It appears that, the star witness
examined by the prosecution was Girjabai Haribhau
Mule (PW-3), who according to the prosecution
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witnessed the incident. However, Girjabai (PW-3)
turned hostile. She stated in her deposition that,
she did not identify the assailants of deceased
Rajaram. She was cross-examined by the A.P.P. at
length. However, nothing useful to the prosecution
has been elicited from her cross-examination. As
per the prosecution case, it appears that, on
raising shouts by Girjabai, Kisnabai and Ashrubai
came to her house.
13. The prosecution examined Kisnabai Rajaram
Samble as PW-6, who deposed before the Court that,
Girjabai (PW-3) raised her hand to call her to the
spot of incident. She saw accused Sopan, Shravan
and three others namely Ashok, Annasaheb and
Raosaheb beating deceased Rajaram by means of
sticks. Deceased Rajaram sustained injuries on his
head, back and near his right eye. Blood was
oozing from his injuries. Deceased Rajaram fell
down on the ground. Accused and three others
pushed her and ran away towards south alongwith
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sticks. She stated that, when the said incident
had taken place, she was in her land called as
"Gabar". She further stated that, when they heard
the shouts of deceased Rajaram from the side of
hutment area, he was shouting "Melo Melo, Dhava
Dhava" and she went towards the spot of incident
and then Badrinath followed her.
In her cross examination, she stated
that, the blood oozing from the injuries on the
head and face of deceased Rajaram had fallen on
her saree. However, it is relevant to mention
that, the prosecution did not bother to send her
saree to Chemical Analyzer, so as to find out
whether as a matter of fact, the blood was fallen
on her saree, and further the said blood was of
the blood group of deceased Rajaram. As already
observed, admittedly, the said saree was not
seized by the Investigating Officer. She also
stated that, she does not remember the colour of
saree worn by her at the time of incident. She
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cannot tell the description of cloths of the
assailants. She cannot tell the names of the other
villagers, who were present on the spot of
incident. She stated before the police that, she
heard the shouts of Rajaram from the side of
hutment as "Melo, Melo, Dhava Dhava", but she
cannot tell the reason why the said statement is
not appearing in her statement before the police.
She stated before the police that, deceased
Rajaram had sustained injuries on his head, back
and near his right eye, and that blood was oozing
from the said injuries, however, the said fact is
not appearing in the statement recorded by the
police. The fact that, though she stated before
the police that, she made deceased Rajaram to sit
and she informed Badrinath (PW-5) that, Rajaram
was beaten by the accused and three others on
account of non-withdrawal of previous case,
however, the same does not appear in the statement
recorded by the police. Her evidence was recorded
by the Court, when the case was tried against
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other three assailants namely, Annasaheb, Ashok
and Raosaheb. She further stated that, she did not
tell before the Court that, Girjabai (PW-3) had
given call to her by raising hand. Therefore, if
the evidence of this witness is considered in its
entirety in the light of admissions given by her
in the cross-examination, the same makes it
untrustworthy to base the conviction of the
accused on her testimony. As already mentioned,
her evidence was recorded in the case of co-
accused and the said co-accused were acquitted by
the trial Court and Criminal Appeal No. 93/1993
filed by the State, challenging the said order of
acquittal was not entertained by this Court and
leave to file appeal was refused by the judgment
and order dated 20th July, 1993.
14. The prosecution examined Parmeshwar
Sukhdev Ghatul as PW-7. He stated in his evidence
that, he was going to his land by Surdi road. He
saw that, accused Sopan, Shrawan and three others
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namely Annasaheb, Ashok and Raosaheb were beating
deceased Rajaram by sticks in front of the house
of Asrabai (PW-4). He proceeded to rescue deceased
Rajaram, at that time, Annasaheb and Ashok
restrained him and threated that, he would be
beaten in the same way like Rajaram if he tries to
intervene. Then he went to the village and raised
shouts. Then he went to the house of Rajaram.
During his cross-examination, he stated
that, he stated before the police that, at the
time of the incident, he was proceeding by Surdi
road, however, the police have not mentioned in
his statement about the same. It is also not
appearing in the police statement that, at the
relevant time, he was going to his agricultural
land. Though he stated before the Court that, he
was going to rescue deceased Rajaram at that time,
Annasaheb and Ashok restrained him, the said fact
is not mentioned in his police statement. Though
he stated before the Court that, Jambabai met him
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near Maruti temple and he informed her about the
incident, however, the said fact is not appearing
in the police statement. Though he stated in his
deposition before the Court that, he went to the
house of deceased Rajaram and informed about the
incident to his mother Subhadrabai and, he took
Subhadrabai to the spot of incident, the said
statement is not appearing in the statement before
the police. His evidence suffers from omissions
and also improvements, and therefore, rightly
discarded by the trial Court.
15. The prosecution examined Asrabai Baburao
Dhage as PW-4. During examination in chief she
stated that, she knows deceased Rajaram. She
knows the accused, who were present before the
Court. Her house is situated near hutment area to
the north of Surdi road. It is facing towards
south. She stated that, the incident took place on
Friday at about 4.00 p.m. i.e. before about eight
years. At that time she was cutting corns of
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Bajra in her agricultural land situated near her
house. Girjabai P.W.3 gave call to her from her
house. She came to the door of her house. She
saw that accused Sopan and Shrawan were beating
deceased Rajaram by means of sticks on his head
and back in front of her house on Surdi road.
Deceased Rajaram had sustained bleeding injuries.
She stated that, Kisnabai and Badri came to the
spot of the incident from their saw mill.
Kisnabai offered water to deceased Rajaram.
Mahadev (P.W.2), Vishnu, Asaram and Jagannath, who
were servants of deceased Rajaram came to the spot
of the incident from the side of the land named
"Sheri". The accused ran away towards south along
with the sticks. Then the villagers gathered
there. Deceased Rajaram was taken to Wadwani on
tractor. Her statement was recorded by the police.
However, during cross-examination, she
stated that, she did not state before the police
names of any other persons than the accused before
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the police as the assailants of deceased Rajaram.
She did not state before police that one Ashok
Sable, Annasaheb and Raosaheb Nipte ran away along
with the sticks from the spot of the incident.
She cannot tell as to why it is mentioned in her
statement before the police that the above named
three persons ran away alongwith the sticks from
the spot of the incident. She stated that, when
she went to the door of her house from her land
she saw that Kisnabai had taken the deceased
Rajaram on her lap and was offering him water
brought by Girjabai PW-3. She further stated that,
the police had recorded her statement in front of
her house. At that time so many persons had
gathered there including Badri. She denied the
suggestion given to her that, Badri asked her to
take the names of the present accused as the
assailants of deceased Rajaram.
16. She deposed that, she stated before the
police that the present accused had beaten
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deceased Rajaram on his head and back and caused
him bleeding injuries, but she cannot tell as to
why the said statement is not appearing in the
statement before the police. She denied the
suggestion given to her that she did not know
anything about the incident except the fact that
Kisanabai had taken deceased Rajaram on her lap
and was offering him water. After she went to the
door of her house, the sons of deceased Rajaram
came to the spot of the incident and they took him
to Wadwani on tractor. The said sons of deceased
Rajaram were Badri and Parmeshwar. She did not
know as to how the dead body of Rajaram was dealt
with in the hospital. She did not state before
the police that the post-mortem examination of the
body of deceased Rajaram was held. She deposed
that, she stated before the police that the
servants of deceased Rajaram, namely, Mahadev
P.W.2, Vishnu, Asaram and Jagannath came to the
spot of the incident from the side of the land
named "Sheri" and the accused ran away towards
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south alongwith sticks, but she cannot state
reason as to why the said statement is not
appearing in her statement before the police. She
stated before the police that Kisnabai and Badri
came to the spot of the incident from their saw
mill, but she cannot tell the reason as to why the
said statement is not appearing in her statement
before the police.
17. The prosecution examined Badrinath
Rajaram Sable as PW-5. He stated that, deceased
Rajaram was his father. The name of his mother is
Kisnabai. He has four brothers namely, Bhagwan,
Parmeshwar, Baliram and Datta. One Jambabai is
his aunt. At the time of the incident they all
were residing together. They possess agricultural
land called "Gabar" situated to the west of the
village. He stated that, the incident took place
on Friday i.e. on 5th October, 1990 at about 3.30
to 4.00 p.m. on Surdi road in front of the house
of Asrabai PW-4. At the time he was at saw -
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mill. His mother Kisnabai also was there. He
stated that, deceased Rajaram, his aunt and grand-
mother were at their house when Kisnabai and he
himself had gone to saw-mill. On that day Mahadev
PW-2, Asaram, Vishnu and Jagnnath were sowing Jwar
in the land called "Sheri". He heard commotion
from the side of the hutment area at about 3.30 to
4.00 p.m. He heard the shouts of deceased Rajaram
namely "Melo Re Dhava, Dhava". He immediately went
to the hutment area. Kisnabai was just ahead of
him. He saw from the distance of about 100 ft.
that the accused present there and Annasaheb
Sable, Ashok Sable and Raosaheb Nipte were beating
the deceased Rajaram by means of sticks. They
were giving stick blows on the head, face and back
of deceased Rajaram. Due to that the deceased
Rajaram fell down on the ground. The deceased
Rajaram had sustained bleeding injuries. At that
time Mahadev P.W.2, Asaram, Vishnu and Jagnnath
also came from the land "Sheri". His aunt also
came from the side of the village. Asrabai P.W.4
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was in front of her house while Girjabai P.W.3 was
in the courtyard of her house. When they rushed
to the spot of the incident the accused and above
named assailants ran away, along with sticks. His
mother offered water to the deceased Rajaram. The
said water was brought by Girjabai P.W.3. He
asked the deceased Rajaram as to why he was
beaten. He replied that all the assailants had
asked him to withdraw all the cases instituted by
himself and PW-5 and beat him.
18. He stated that, his brother Parmeshwar
came to the spot of the incident. He brought
tractor from near our saw-mill. They boarded the
deceased Rajaram on the trolley of the tractor and
led him to Wadwani. They reached Wadwani at about
5.00 p.m. They placed the deceased Rajaram in a
jeep at Wadwani and led him to the District
Hospital at Beed. His mother, aunt and Asaram had
accompanied the deceased Rajaram. The Medical
Officer examined the deceased Rajaram and declared
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him as dead. The police had come to the Hospital
after Medical Officer examined the deceased
Rajaram.
19. He stated that, his father had instituted
a criminal case against the father of the present
accused and others. He also had filed a criminal
case against Ashok Annasaheb Sable, Raosaheb Nipte
and the father of the present accused. The
deceased Rajaram and this witness had lodged
reports in respect of the same cases to Police
Station, Dindrud on 23.9.1990 and 29.9.1990
respectively. He stated that, the present accused
were residing at Pimparkhed at the time of the
incident. After the incident they ran away.
20. During his cross examination, he stated
that, his evidence has been recorded in respect of
the present incident in Sessions Case No.19/1991.
He did not remember as to whether he has stated
before the Court that he did not see Asrabai
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P.W.4, Girjabai P.W.3 and Ranubai Athwale on the
spot till they left for Wadwani from the spot. He
stated that, when his father i.e. deceased Rajaram
drunken water, at that time his mother Kisnabai,
aunt Jambabai, their servants namely Mahadev
P.W.2, Asaram, Vishnu, his brothers Parmeshwar and
Dattatraya, some women from Zopadpatti and witness
himself were present. He stated that, deceased
Rajaram was the maternal cousin of the mother of
the then M.L.A. of Majalgaon namely Radhakisan
Patil. Radhakisan Patil had contested the Assembly
Election in year 1989. At that time Ashok
Anasaheb Sable was the Sarpanch while Annasaheb
Anantrao Sable was the police patil of their
village. Narayan Dak was contesting the Assembly
Election against Radhakisan Patil. He did not
remember as to whether Bajirao Jagtap also was one
of the candidates contesting that election.
Deceased Rajaram and this witness were canvassing
for Radhakisan Patil. Ashok Sable was the
Sarpanch of our village since 1985. He did not
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know as to whether Ashok Sable and the present
accused were the supporters of Narayan Dak. The
deceased Rajaram was having a rival group against
Ashok Sable. He did not know as to whether the
present accused were belonging to the group of
Ashok Sable. In the Assembly Election Radhakisan
Patil got elected. He denied that, after the
election the deceased Rajaram and this witness
started giving benefit of the Govt. Scheme to the
persons of their group. He denied that, they
deprived the present accused of the Government
scheme for construction of a house. He did not
remember as to whether there was a scheme for
financial assistance to the landless persons to
construct houses. He denied that, they extended
the benefit of the scheme for construction of
houses of Asrabai P.W.4.
21. He stated that, there is a branch of
Marathwada Gramin Bank of Kawadgaon. He denied
that, the deceased Rajaram was creating hurdles in
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the way of the villagers in getting loan from that
bank for construction of houses. He did not know
as to whether the deceased Rajaram had obstructed
the father of the present accused namely Banshi in
getting loan from the bank of Kawadgaon. He
denied that, the deceased Rajaram and he himself
were harassing the persons of the group of Ashok
Sable for getting the benefits of all the
government schemes.
22. He stated that, Banshi Khalge had lodged
a report against Sandipan Khalge, Asaram Athwale
and the witness himself to Police outpost Wadwani
on 29.9.1990 on the allegations that they had
beaten him on 28.9.1990. He did not know as to
whether Annasaheb Sable had taken Banshi Khalge to
Police outpost Wadwani on his own bullock cart. He
denied that, he had lodged false report against
Banshi Khalge and others on 29.9.1990 to give
counter blast to the report lodged by Banshi
Khalge. He stated that, he had lodged the report
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on 29.9.1990 in Police outpost Wadwani only. He
denied that, he pressurized the police through
Radhakisan Patil and got registered false report
against Banshi Khalge and others on 29.9.90. He
denied that, he was deposing falsely that, the
present accused ran away from village Pimparkhed
after the incident.
23. He stated that, he did not remember as to
whether he had talks with Kisnabai or Asaram after
he reported about the incident to P.S.I. Kandade.
He did not remember as to whether he informed
Kisnabai and Asaram after lodging the report
Exh.37 that, he mentioned the names of five
assailants of deceased Rajaram. He did not
remember as to whether he had any talks with
Kisnabai and Asaram about the incident until the
charge-sheet was filed by police. He did not
remember as to whether the saree of Kisnabai was
stained with blood when she had taken deceased
Rajaram on her lap. He did not remember as to
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whether the police seized the saree of Kisnabai.
He denied that, Kisnabai, Jambabai, Asaram and
this witness consulted each other in the District
Hospital, Beed as a result of that consultation,
he lodged report Exh.37 against five persons
including the present accused. He denied that, to
take revenge of the previous rivalry he lodged
false report Exh.37. He has stated in the report
Exh.37 that on 5th October, 1990 at about 3.30 to
4.00 p.m. he alone was sitting in the saw-mill.
He did not remember as to whether he had stated
before P.S.I. Kanade while lodging report Exh.37
that Kisnabai was also present in the saw mill.
The fact that Kisnabai was sitting with him in the
saw mill, is not mentioned in his report Exh.37.
24. He deposed that, he stated before the
police that, he heard the shouts of deceased
Rajaram as "Melo re Dhava, Dhava" while recording
the report Exh.37, however, he cannot tell as to
why the said statement is not appearing in his
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statement before the police. He deposed that, he
stated before the police that Kisnabai went to the
spot of the incident before him, but this
statement is not appearing in the statement before
the police. He deposed that, he stated before the
police that, he had seen the present accused and
three others beating the deceased Rajaram by means
of sticks from the distance of about 100 feet, but
he cannot tell reason as to why the said statement
is not appearing in his police statement. He
deposed that, he stated before the police that,
the present accused and three others gave stick
blows on the head, face and back of the deceased
Rajaram and due to that he fell down on the
ground, however, the said statement is not
appearing in his statement before the police. He
deposed that, while recording the report, he
stated that, Mahadev P.W.2, Asaram, Vishnu and
Jagannath came to the spot of the incident from
the land of Sheri when deceased Rajaram fell down.
He cannot tell the reason as to why the statement
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that, after he went to the spot of the incident,
he sent his younger brother Datta to their land
"Sheri" to call their servants namely Ashok Dhage,
Jagannath Sable, Vishnu Sable and brother
Parmeshwar in the report at Exh.37. He did not
remember as to whether he has stated before police
that when he came to the road in front of the hut
of Asaram Athawale, he saw deceased Rajaram lying
on the ground. He denied the contents of portion
marked 'B' of report Exh.37. He deposed that, he
had stated before police that his aunt also had
come to the spot of the incident from the side of
the village, but the said statement does not find
place in the report. He deposed that, he stated
before the police that when they all rushed to the
spot of the incident, the accused and other
assailants ran away alongwith sticks, but the said
statement is not appearing in the report Exh.37 in
the same fashion. He deposed that, he stated
before the police that, Girjabai P.W. 3 brought
water from her house and Kisnabai offered it to
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deceased Rajaram, but he cannot tell reason as to
why said statement is not appearing in report
Exh.37.
25. He stated that, when he had gone to the
spot of the incident so many villagers had
gathered there besides Girjabai P.W.3, Asrabai
P.W.4 and Kisnabai. He cannot say the names of
those villagers as he did not remember them now.
He had no talks with Girjabai P.W.3 and Asrabai
P.W.4 until deceased Rajaram was placed on trolley
of the tractor. He denied that, he went to the
spot of the incident only after receiving the
message that deceased Rajaram was lying there
unconscious. He denied that, they lifted deceased
Rajaram when he was in unconscious condition and
took him to Wadwani in a trolley of the tractor.
He denied that, he was deposing false that
Girjabai P.W.3, Asrabai P.W.4 and Kisnabai were
present on the spot of incident. He deposed that,
he stated before the police that Girjabai PW-3,
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Asrabai P.W.4 and Kisnabai were present on the
spot of the incident, however, he cannot tell the
reason as to why the said statement is not
appearing in his statement before the police. He
deposed that, he stated before the police that,
his father was raising shouts and that he saw the
accused beating him by means of sticks from the
distance of about 100 feet, but he cannot state
the reason as to why the said statement is not
appearing in his statement before the police. He
stated before the police that, Mahadev P.W.2,
Asaram, Vishnu and Jagannath came to the spot of
the incident from the land called "Sheri" and
that, his aunt came there from the side of the
village, but he cannot state the reason as to why
the said statement is not appearing in his
statement before the police. He deposed that, he
stated before the police that Girjabai P.W.3
brought water from her house and Kisnabai offered
it to the deceased Rajaram by taking him on her
lap, but he cannot tell the reason as to why the
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said statement is not appearing in his statement
before the police. He denied that, he has lodged
false report against the accused due to previous
rivalry. He denied that, he is deposing false
that when he went to the spot of the incident, he
asked him as to why he was beaten, and that, he
replied that all the assailants beat him asking
him to withdraw the cases instituted by him and
this witness. He denied that, deceased Rajaram
was unconscious when he went to the spot of the
incident and that he did not talk to this witness.
He denied that, the accused are not responsible
for the death of his father Rajaram.
26. The prosecution examined Annasaheb
Bhimrao Kanade as PW-8. He stated that, in the
month of October, 1990 he was attached to Beed
City Police Station as Senior P.S.I. On 5th
October, 1990, P.S.O. received an intimation from
the Medical Officer, District Hospital, Beed about
the death of one Rajaram Keshav Sable. On
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receiving that intimation, he went to the District
Hospital, Beed. Son of deceased Rajaram namely
Badrinath PW-5 met him in the hospital. He orally
informed about the incident before him. He further
stated details about how crime is registered. He
thereafter prepared the inquest panchnama. He
stated that, thereafter, he sent letter to Civil
Surgeon, District Hospital, Beed for conducting
post-mortem examination of the dead body of
Rajaram and accordingly post-mortem examination of
the dead body of Rajaram was conducted on 6th
October, 2010. He stated that, he seized the
clothes, which were on the person of deceased
Rajaram by drawing panchnama. He thereafter
obtained the provisional death certificate in
respect of Rajaram Sable from the Medical Officer,
District Hospital, Beed and he handed over dead
body of Rajaram Sable to Badrinath PW-5.
During his cross examination, he stated
that, he was serving as a Police Sub Inspector
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since last 14 years. He did not record the
statement of any person giving the address of the
accused of Pune. He has not brought any record of
Police Station, Dindrud to show that he had gone
to Pune in search of the accused. He was unable to
say the exact location of the house where the
accused were residing at Pune. He did not inform
any police station in the State of Maharashtra
regarding the fact of absconding of the present
accused. He stated that, Badrinath (PW-5) did not
state before him that deceased Rajaram was raising
shouts as "Melo Re, Dhava, Dhava". Badrinath
PW-5 did not state before him that Kisnabai PW-6
was ahead of him when he went to the spot of the
incident. He stated that, Badrinath PW-5 had not
stated before him that he had seen the present
accused and three others beating the deceased
Rajaram by means of sticks from the distance of
about 100 feet. He stated that, Badrinath P.W.5
had not stated before him that when all the above
named persons rushed to the spot of the incident,
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the accused and other assailants ran away.
Badrinath P.W.5 had not stated before him that
Girjabai P.W.3 brought drinking water and Kisnabai
P.W.6 offered it to deceased Rajaram.
27. The prosecution has examined Asaf Alikhan
Abdul Hamid Khan Pathan as PW-9, who is
Investigating Officer in the said crime. In his
examination-in-chief, he has deposed about the
manner in which he has carried out the
investigation of the crime.
During his cross-examination, he admitted
that, he was knowing that there were disputes
between five assailants named by him, on one hand
and the deceased Rajaram on the other. He stated
that, he was knowing that the deceased Rajaram was
a relative of the then M.L.A. Radhakisan Patil.
He stated that, he got information that the
accused Shravan and Sopan were residing at Pune.
He further stated that, he did not try to record
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the statement of any person from Pune where the
said accused were residing. He stated that, he
does not remember as to who were sent by him to
Pune in search of the absconded accused. He stated
that, he recorded the statement of Mahadev P.W.2
as per his say. He stated that, PW-2 did not
state before him that he had heard the shout as
"Melo re Baba". The contents of portion marked
'B' of the statement of Mahadev P.W.2 have been
rightly recorded by him as per his say. Portion
marked 'B' is Exh.51. He stated that, Mahadev
P.W.2 had not stated before him that he had heard
the voice of the deceased Rajaram and that,
Mahadev P.W.2 had not stated before him that he
had noticed Sopan, Shravan, Annasaheb, Ashok and
Raosaheb assaulting the deceased Rajaram with
sticks. He stated that, Mahadev P.W.2 had not
stated before him that when Asaram and PW-2 had
gone near the hut of Baburao Dhage, Kisnabai,
Badrinath, Girjabai and Asrabai were present
there. He stated that, Mahadev P.W.2 had not
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stated before him that the assailants were
assaulting on the face, head and back of the
deceased Rajaram. He stated that, Mahadev P.W.2
had not stated before me that Sopan gave a blow of
stick on the head of the deceased Rajaram and due
to that bleeding injury was sustained by the
deceased Rajaram and that he fell down. He
admitted that, Mahadev P.W.2 had not stated before
him that Kisnabai took the deceased Rajaram on her
lap and offered him water.
28. After considering the entire evidence
brought on record by the prosecution, the trial
Court has come to the conclusion that, the ocular
evidence is not cogent, consistent and dependable,
there is no circumstantial evidence to connect the
accused with the alleged incident. The trial Court
has further observed that, the oral evidence on
which the entire prosecution case is standing, is
not strong enough to establish the guilt of the
accused beyond reasonable doubt. The trial Court
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further observed that, it cannot be held that, the
accused inflicted stick blows on deceased Rajaram
and caused him injuries, resulting into his death
and the trial Court has concluded that, the
prosecution failed to prove that, the accused in
furtherance of their common intention, caused
bodily injuries to Rajaram Sable with intent to
cause his death or with the knowledge that, he
would die as a result of those injuries.
29. Upon independent scrutiny and re-
appreciation of entire evidence brought on record
by the prosecution, it clearly emerges that, there
are serious omissions, contradictions and
improvements in the evidence of prosecution
witnesses which goes to the root of the
prosecution case and makes said evidence unworthy
and unreliable. We are therefore of the view that,
the findings recorded by the trial Court are in
consonance with the evidence brought on record by
the prosecution. There is no perversity as such.
247.99cria+
The view taken by the trial Court is plausible
view. The Supreme Court in the case of Muralidhar
alias Gidda and another Vs. State of Karnataka 1 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, [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,
1. 2014 [4] Mh.L.J.[Cri.] 353
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[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 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
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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 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,
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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 evidence
must not result in the interference
by the appellate Court in the
judgment of the trial Court.
[Underlines supplied]
30. Therefore, in the light of discussion
herein above, the Appeal filed by the State and
also Criminal Revision Application filed by the
complainant stand dismissed. Bail bonds, if any,
stand cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
SGA
