The State Of Maharasthra vs Bharatsing H.Patil
2017 Latest Caselaw 3645 Bom

                                                    12.2000 Cri.Appeal.odt
                                        1



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO.12 OF 2000

          The State of Maharashtra                APPELLANT 
                                             [Ori. complainant]
                     VERSUS 

          Bharatsing Harsing Patil 
          age 30 yrs., r/o. Vitner, 
          Tq. Parola, Dist. Jalgaon.               RESPONDENT
                                                 [ori.accused]
                               ...
          Mr.P.G.Borade, APP for the Appellant-State. 
          Mr.P.B.Patil, Advocate for respondent/sole. 
                               ...

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

Date: 27.06.2017.

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 Additional

Sessions Judge, Amalner, District Jalgaon, on

30th September, 1999 in Special Criminal Case

No.6/1999.

12.2000 Cri.Appeal.odt

2. The prosecution case in nutshell is

as under:

It is the case of the prosecution

that Ramdas Hari Nikam with his son Ravindra

and wife Yashoda were residing at village

Vitner, Taluka Parola. Accused Bharatsing

Harsing Patil is also resident of the same

village. It is alleged that accused

Bharatsing always used to visit the house of

Ramdas [deceased], and they used to have

drink together. On 26th November, 1998, at

about 7.00 p.m. while Ramdas Hari Nikam was

sitting in the varanda situate on front side

of his house, accused Bharatsing came there,

and sat with him. It is alleged that

Bharatsing said to Ramdas 'kay beta basalas'.

On uttering such words by accused Bharatsing,

there was exchange of words and abuses

between the accused and Ramdas. Ravindra son

of Ramdas intervened and pacified the accused

and sent him to his house. It is the case of

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the prosecution that while returning back

accused threatened that he will come back and

will see his father.

It is alleged that when the

informant Ravindra was taking dinner at about

7.30 p.m. on the same day, and mother of

Ravindra was serving dinner to him, that time

Ramdas was lying on the cot, which was in

front of the front door in the eastern

portion of varanda, with his head towards

courtyard i.e. southern side. Accused

suddenly came there holding iron pipe in his

hand, and loudly uttered 'kay ahe re' and

dealt a blow by iron pipe on the head of

Ramdas. Due to his blow, there was bleeding

injury to the head of Ramdas. The informant

tried to apprehend the accused, and snatched

pipe which he was holding in his hand.

However, accused rescued himself, and went

towards his house. It is alleged that due to

noise of the said incident, persons residing

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nearby the vicinity gathered there. One

Lalsing, Suresh and many others came at the

house of the informant. As there was severe

injuries on the head of Ramdas, there was no

movement of his body. Somebody informed the

police, and the police reached at the house

of the informant. Thereafter, the Police had

taken injured Ramdas in a vehicle at Cottage

Hospital, Parola. The Medical Officer

Dr.Raghuwanshi examined the injured Ramdas,

and declared that he is dead, and

accordingly, issued certificate.

It is the case of the prosecution

that the informant Ravindra at about 11.00 to

11.30 p.m. went to the Police Station, and

lodged the First Information Report. The said

FIR was registered by PSI Mr.Jadhav, vide

Crime No.197/1998, for the offences

punishable under Sections 302, 452, 504 and

506 of the Indian Penal Code and under

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Section 3 [ii] [v] of the Scheduled Castes

and Scheduled Tribes [Prevention of

Atrocities] Act, 1989.

3. The investigation was initiated, and

PSI Mr.Jadhav on the next day i.e. 27th

November, 1998 morning went to the Cottage

Hospital, Parola, and recorded the inquest

panchnama of the dead body of Ramdas in

presence of the panchas namely, Suresh Dala

Wankhede and Vilas Bhika Patil. The dead body

was sent to the Medical Officer for

postmortem examination. Dr.Raghuwanshi

performed postmortem examination on the dead

body in the morning on 27th November, 1998,

and found that there was fracture to the

skull bone, and cause of death was due to

shock to the fracture of skull bone. He

accordingly issued P.M. note. Then he went at

the house of the informant, and verified the

spot of incident at the varanda of his house,

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which was shown by the informant in the

presence of the panchas, namely, Suresh and

Vilas. The Investigating Officer collected

the blood soaked soil, plain soil and blood

stains seen on the wall from the spot of

incident. The informant Ravindra produced the

iron pipe, which was snatched by him from the

accused, and the same was seized by the

Investigating Officer for further

investigation. Accordingly, spot-cum-seizure

panchnama was prepared in the presence of

panchas namely, Suresh and Vilas.

Thereafter, he recorded the statements of the

witnesses Yashodabai wife of deceased,

Lalsing, Santosh Wankhede and Suresh

Wankhede. The Investigating Officer then

apprehended the accused in the noon on that

day, and then had taken him to the Police

Station, Parola. It is further the case of

the prosecution that in presence of the

panchas namely, Bhura Hiraman and Rajendra

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Pardhi, the Investigating Officer seized

blood stained white shirt from the person of

accused, and accordingly, recorded arrest-

cum-seizure panchnama at about 3.00 p.m. On

29th November, 1998, the informant Ravindra

Ramdas Nikam had produced before the

Investigating Officer of the Police Station,

Parola, the blood stained turkish towel,

blood stained white dhoti which his father

Ramdas was wore at the time of incident. The

said clothes were seized by the Investigating

Officer in the presence of panchas namely,

Bhura Hiraman Lonare and Rajendra Pardhi.

The postmortem note was collected by the

Investigating Officer. Thereafter, seized

articles were then sent for C.A. with

forwarding letter. C.A. report was received

by the Investigating Officer. On 29th

November, 1998, the Investigating Officer

recorded the statements of Daulat Pandit

Wagh, Ramsing Keshav Wankhede and some other

12.2000 Cri.Appeal.odt

witnesses. He had also collected the caste

certificate of deceased Ramdas Hari Nikam.

After completion of the investigation, PSO

Parola charge-sheeted the accused for the

offence punishable under Sections 302, 452,

504 and 506 of the Indian Penal Code and

under Section 3 [ii] [v] of the Scheduled

Castes and Scheduled Tribes [Prevention of

Atrocities] Act, 1989, in the Court of

learned Judicial Magistrate First Class,

Parola. Since the offences punishable under

Section 302 of the I.P. Code and also the

offences under Section 3 [ii] [v] of the

Scheduled Castes and Scheduled Tribes

[Prevention of Atrocities] Act, 1989, was

being exclusively triable by the

Sessions/Special Judge respectively, the

learned Magistrate committed the case to the

Special Court.

4. The accused pleaded not guilty and

12.2000 Cri.Appeal.odt

claimed to be tried. His defence was of total

denial. According to him, he was falsely

implicated in the case. The trial Court -

Special Court after full-fledged trial

acquitted the accused for the offences

punishable under Sections 302, 452, 504 and

506 of the Indian Penal Code and under

Section 3 [ii] [v] of the Scheduled Castes

and Scheduled Tribes [Prevention of

Atrocities] Act, 1989, hence this appeal

filed by the appellant - State against the

judgment and order of acquittal.

5. Learned APP appearing for the

appellant-State submits that there were eye

witnesses to the incident. The evidence of

the informant ought to have been believed by

the trial Court. The evidence of the

informant gets corroboration from the

evidence of Yashodabai, mother of the

informant, and also from the medical

12.2000 Cri.Appeal.odt

evidence. When the prosecution case is based

upon the direct evidence, and if it gets

corroboration from the medical evidence, and

other evidence brought on record by the

prosecution, there was no reason for the

trial Court to acquit the respondent-

accused. It is submitted that the prosecution

has duly proved inquest panchnama, seizure of

the clothes of the accused, and also other

witnesses have been examined, who have

supported the prosecution case. Other

witnesses have stated that the informant

Ravindra and Yashodabai were very much

present in the house when the incident had

taken place. Ramsing Keshav Wankhede [PW-8],

who is neighbourer of Ravindra, and whose

house is at 20 feet from the house of the

informant, has also supported the prosecution

case. He also stated that he saw accused

Bharat came to the house of Ramdas at 7.00

p.m. on 26th November, 1998. There was hot

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exchange of words between accused and Ramdas,

which was pecified by Ravindra [PW3] and

Daulat [PW7]. After half an hour again

accused Bharat came there holding iron pipe

in his hand and assaulted Ramdas on his head,

and then ran away from the spot of incident.

C.A. report shows that the blood stains found

on the iron pipe were of blood group "B". It

is true that blood of Ramdas Hari Nikam could

not be determined, and result was

inconclusive, nevertheless blood was found on

the said iron pipe, which was snatched by the

informant from the accused. Dr.Prakash

Narayansing Raghuwanshi, who examined Ramdas

Hari Nikam, stated that the injuries were

ante-mortem, and also there were

corresponding internal injuries. It is

submitted that as per his opinion the death

of Ramdas was due to shock due to injuries to

vital organ [brain] due to fracture of skull

bone. Therefore, relying upon the evidence of

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the prosecution witnesses, and also other

evidence brought on record by the

prosecution, the learned APP submits that

appeal deserves to be allowed.

6. On the other hand, learned counsel

appearing for the respondent-accused invites

our attention to the findings recorded by the

trial Court, and submits that those are in

consonance with the evidence brought on

record by the prosecution, and therefore,

those need no interference. It is submitted

that the possible view has been taken by the

trial Court, and therefore, interference in

the order of acquittal is not necessary.

7. We have given careful consideration

to the submissions of the learned APP

appearing for the appellant - State, and the

learned counsel appearing for respondent-

accused. With their able assistance, perused

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the evidence of the prosecution witnesses,

and also the medical evidence, and other

evidence brought on record. In order to prove

whether the death of Ramdas was homicidal or

otherwise, the prosecution examined Prakash

Narayan Raghuwanshi as PW-5. In his

examination in chief, he found the following

external injury on the dead body of deceased

Ramdas Hari Nikam:

C.L.W. over frontal region about 5" inch in length 2" inch in width and one 1" deep and it was bone deep.

8. He stated that the injuries were

ante mortem. The corresponding internal

injuries were also found and brain matter was

coming out to the fracture bone. He stated

the cause of death is shock due to injury to

vital organ [brain] due to fracture of skull

bone. Accordingly, he prepared P.M. note.

He was confronted with the column no.11 of

12.2000 Cri.Appeal.odt

the P.M. note Exh.22, and in reply, he stated

that rigor mortis are absent. It were absent

because of the secondary relaxation. The

death of that person was before about 24

hours next before the P.M. examination by

him. He admitted that there is no mention

about the time of last meal and the time of

the death before the post mortem. He also

stated other details.

In the light of the evidence of

Dr.Raghuwanshi [PW-5], if the prosecution

case is examined that the incident had

happened on 26th November, 1998, cannot be

accepted, in view of the fact that

Dr.Raghuwanshi [PW-5] stated in his evidence

that he performed postmortem on 27th November,

1998 at about 9.15 a.m. and said was

completed at 10.00 a.m., and death of Ramdas

was before about 24 hours next before

postmortem examination by him. It means

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Ramdas Hari Nikam might have died in the

morning on 26th November, 1998 or prior to it.

Dr.Raghuwanshi [PW-5] also stated in his

cross examination that it is mentioned in

column no.11 of the P.M. note Exh.22 that

rigor mortis are absent. It were absent

because of secondary relaxation. We find

considerable force in the argument of the

learned counsel for the respondent that rigor

mortis disappears after 24 hours from the

death of the person. Dr.Raghuwanshi [PW-5]

has also expressed in his cross examination

that rigor mortis was absent on the dead

body.

The evidence of the prosecution

witnesses suffers from serious omissions,

contradictions and improvements. Bhura

[PW-1], who was panch to the seizure of

clothes of deceased and accused, stated in

his evidence that first panchnama of seizure

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of clothes of accused was prepared on 27th

November, 1998 at 3.00 to 3.45 p.m. While in

cross he stated that he was called in the

morning for the first time by the Police.

Second panchnama of seizure of clothes of

deceased was prepared on 29th November, 1998,

at about 8.30 to 9.15 a.m. However, in his

examination in chief, Bhura [PW-1] stated

that he does not know who gave the clothes of

deceased to the Police. In his cross

examination, he stated that for the first

time he was called for panchnama in the

morning while the first panchnama of seizure

of clothes of accused was prepared at 3.00 to

3.45 p.m. He stated that shirt and pant of

the accused were seized in his presence,

while only shirt was seized so both the

panchnamas are not proved by the prosecution

beyond reasonable doubt. Vilas [PW-2], who

was panch to the spot and inquest

panchanamas, turned hostile. Ravindra [PW-3],

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who is son of deceased, stated in his

examination in chief that the accused said to

his father that 'kay beta basla', so there

was exchange of words between them. He

pacified the said dispute but the accused

threatened that he will see his father, when

his mother namely, Yashodabai [PW-6] stated

that the accused said 'Tyza ka Tatya Todu'.

Ravindra [PW-3] further stated that the

accused came with iron pipe, and gave the

blow of pipe on the head of his father when

he was taking dinner, and his mother was

serving him; while in cross he stated that,

he seen the accused when he reached in front

of the house of Prabhakar. He further stated

that he snatched the pipe from the accused,

and he ran away, while in cross he stated

that the accused left the pipe and ran away.

He further stated that on 29th November, 1998,

he went to deposit the clothes of his father

but Bhura [PW-1] Panch stated that he does

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not know who brought the clothes in the

police station. Ravindra [PW-3] admitted that

he gave evidence in the Court as per the

instructions of the Police. He further stated

that the house of Daulat [PW-7] is on the

western side of house of Prabhakar with a

road in between and nothing is visible

beyond the bathroom of Prabhakar.

He further admitted that the house of Suresh

[PW-4] is beyond 5 to 7 houses from the

turning to the road from his house, while the

Suresh [PW-4] stated that his house is in

front of the house of the informant. He

admitted that his father was in the habit of

drinking, while his mother-Yashodabai [PW-6]

stated that her husband was not in habit of

drinking. Ravindra [PW-3] stated that portion

marked 'A' of Exh.16, in his statement

recorded under Section 161 of the Criminal

Procedure Code, in regards to the consumption

of liquor of his father, is not correct.

12.2000 Cri.Appeal.odt

Ravindra [PW-3] stated that his father was

wearing the white dhoti and towel at the time

of incident but only under-pant was on the

person of deceased at the time of inquest,

and that under-pant is not seized by the

Police. The prosecution is silent how the

remaining clothes of the deceased came in the

custody of informant.

9. Therefore, we find full force in the

argument of the learned counsel appearing for

the respondent-accused that the evidence of

the alleged two eye witnesses namely,

Ravindra [PW-3] and Yashodabai [PW-6],

suffers from serious infirmities and rightly

discarded by the trial Court.

Dr.Raghuwanshi [PW-5] in column no.

11 of P.M.note mentioned that rigor mortis

was absent so the death of person was before

about 24 hours next before postmortem. The

postmortem was started on 27th November, 1998

12.2000 Cri.Appeal.odt

in between 9.15 a.m. to 10.00 a.m. so the

death of the deceased must have been occurred

before 9.15 a.m. on 26th November, 1998, while

as per the prosecution story the deceased

died on 26th November, 1998, at about 7.30

p.m. It is submitted that if the evidence of

Doctor, who is expert and independent

witness, is taken into consideration then the

entire story is unbelievable.

Yashodabai [PW-6] stated in her

deposition that the contents of portion

marked 'A' of the police statement are not

correct. However, the Investigating Officer

stated that the said portion marked 'A' is as

per the narration of Yashodabai [PW-6]. She

further stated that, because of dark the

portion towards the front side door was not

visible. She further stated that Daulat

[PW-7] was with Ravindra [PW-3], however,

Ravindra [PW-3] has not stated that so about

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the same in his evidence so there is no

corroboration to her version. Even the name

of Daulat [PW-7] is not reflected in the FIR

at Exh.16. His statement was belatedly

recorded on 29th November, 1998. He was trying

to implicate the brother of accused in the

alleged crime without any foundation. He

stated that he himself and Ravindra [PW-3]

snatched the pipe from the accused, however,

Ravindra [PW-3] has not stated so in his

evidence.

10. Ramsingh Keshav Wankhede was

examined as PW-8, whose statement was

recorded by the Police on 29th November, 1998.

The story narrated by him that he could see

the incident from his house is unbelievable,

because it has come in the evidence of

Yashodabai [PW-6] that there was dark at the

front side of the door of the house. He has

not stated in his Police statement that he

12.2000 Cri.Appeal.odt

was sitting on the cot in front of his house.

Except Dr.Raghuwanshi [PW-5] all other

witnesses are interested witnesses. The trial

Court has taken possible view, and therefore,

the interference in the impugned judgment and

order is not necessary.

11. In the present case, the prosecution

has not disclosed true facts inasmuch as the

Medical Officer has stated that the death of

Ramdas was before 24 hours preceding

postmortem examination. It is the case of the

prosecution that death of Ramdas was at 7.00

p.m. on 26th November, 1998. Therefore, when

the prosecution is not able to establish the

time of the death and the evidence of the

prosecution witnesses suffers from

omissions, contradictions and improvements.

In our opinion, the trial Court has rightly

granted the benefit of doubt in favour of the

respondent accused. There is no merit in the

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appeal, hence appeal stands dismissed. The

bail bonds, if any, shall stand cancelled.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC