Bombay High Court
Madhukar S/O Shyamrao Sirsam vs State Of Maharashtra & 4 Others on 30 March, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.157/2003
State of Maharashtra through
Police Station Officer, P. S. Karanja,
Dist. Wardha. .....APPELLANT
...V E R S U S...
1. Pundlik s/o Vithoba Madavi
aged 19 years.
2. Pushpraj s/o Vithoba Madavi,
aged 30 years.
3. Gajanan s/o Bapurao Madavi,
aged 22 years.
4. Kailash Bapurao Somkuvar,
aged 32 years.
All r/o Tiroda, Tq. Karanja,
Dist. Wardha. ...RESPONDENTS
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Mr. V. A. Thakare, A.P.P. for appellant.
None for the respondents.
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AND
CRIMINAL REVISION NO.1/2003
Madhukar s/o Shyamrao Sirsam,
agaed 25 years, Occ. Agriculturist,
r/o Tiroda, Tq. Karanja, Dist. Wardha. .....APPLICANT
...V E R S U S...
1. State of Maharashtra through
Police Station Officer, P. S. Karanja,
Dist. Wardha.
2. Pundlik s/o Vithoba Madavi
aged 19 years.
3. Pushpraj s/o Vithoba Madavi,
aged 30 years.
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4. Gajanan s/o Bapurao Madavi,
aged 22 years.
All r/o Taroda, Tq. Karanja,
Dist. Wardha.
5. Kailash Bapurao Somkuvar,
aged 32 years.
R/o Waghoda, Tq. Karanja,
Dist. Wardha. ...NON APPLICANTS
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None for the revision-applicant.
Mr. V. A. Thakare, A.P.P. for non applicant no.1-State
None for non applicant nos. 2 to 5.
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CORAM:- B. P. DHARMADHIKARI AND
V. M. DESHPANDE, JJ.
DATED :- MARCH 30, 2017
J U D G M E N T (Per : V. M. Deshpande, J.)
1. Criminal Appeal No.157/2003 is preferred by the State. The
appeal is directed against the judgment and order of acquittal passed by
the 2nd Ad hoc Additional Sessions Judge, Wardha dated 25.11.2002 in
Sessions Trial no.50/2002. By the said judgment, the learned Judge of
the Court below acquitted the respondents of the offence punishable
under Section 302 read with Section 34 of the Indian Penal Code.
Criminal Revision No.1/2003 is preferred by Madhukar
Sirsam, who lodged the first information report bearing FIR
No.187/2001, culminated into the Sessions Trial No.50/2000. Thus, he
is also challenging the judgment and order of acquittal passed by the
learned Judge of the Court below.
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2. Since both, the appeal and the revision, arise out of the
same judgment and order of acquittal, those are disposed of by this
common judgment.
3. When the matter was called for its final hearing, the learned
counsel for the applicant in Criminal Revision No.1/2003 and the
counsel for the respondents-original accused chose not to remain
present before the court. We have heard in extenso Mr. V. A. Tahakre,
the learned Additional Public Prosecutor for the State. With his able
assistance, we have gone through the record and proceedings and also
the impugned judgment, in order to see as to whether the judgment of
acquittal can be interfered with.
4. The respondents faced the charge in the Sessions Trial
No.50/2002 that on 15.11.2001 in the noon time at Taroda, Tq.
Karanja, Dist. Wardha, they assaulted the deceased Sudharkar and
committed his murder.
5. The FIR is lodged by Madhukar Sirsam (PW1). He is the
brother of the deceased. As per the FIR (Exh.-20), on 15.11.2001, there
was festival of cows in the village. The accused persons decorated the
cows and they were dancing in the varandha of house of their uncle
Ramdas. According to the FIR, the accused Pushpraj asked the deceased
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that he should dance in the guise of a woman. That resulted into verbal
exchange in between them. First informant's mother, in the meanwhile,
brought the deceased Sudhakar at home. Thereafter the deceased ate
chiwda, eatable mixture at home and then he went near Hanuman
temple and was sitting there. That time, the accused persons came
there and assaulted the deceased by means of various dangerous
weapons. This fact was intimated to the first informant by Rajendra
Deshmukh (PW6). Therefore, the first informant, his mother and sister
went to the spot. That time, he noticed that the accused persons were
running away from the spot. The injured was taken up to the road by
bullock cart and thereafter he was taken to the Rural Hospital, Karanja
by passenger jeep. There the Medical Officer asked them that injured
should be shifted to Nagpur and therefore he was taken at Nagpur. At 7
O'clock in the evening, Sudhakar expired.
The FIR was lodged with Police Station, Karanja on the next
day i.e. on 16.11.2001. Suresh Bhoyar (PW7) registered the crime on
the basis of the report lodged by the first informant. He conducted part
of the investigation and the remaining investigation was conducted by
Virendra Yadav (PW8). After completion of the investigation, final
report was presented in the Court of law.
6. As observed in the earlier part of this judgment, the
respondents faced the charge for the offence punishable under Section
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302 read with Section 34 of the IPC. In order to bring home the guilt of
the accused, the prosecution examined in all 8 witnesses. Those include
two investigating officers, Madhukar Sirsam (PW1), Dilip Dhandare
(PW2) and Hansraj Shete (PW4) as panch witnesses and Subhash
Deshmukh (PW3), Hansraj Shete (PW4) and Rajendra Deshmukh
(PW6) as eye witnesses.
7. Though, the incident is dated 15.11.2011 at about 15.00
hrs., the printed FIR (Exh.-21) shows that the offence was registered on
16.11.2001 at about 20.30 hrs. The learned Judge, in our view, after
gong through the entire record, has rightly reached to the conclusion
that there was no satisfactory explanation coming on record from the
side of the prosecution in respect of the delay in lodging the report. The
delay in lodging the report casts doubt regarding the truthfulness of the
prosecution case as the possibility of embellishment is not completely
ruled out in that event. The prosecution was under obligation to
prove that the death was homicidal one. In the present case, though
the deceased was firstly taken to the Rural Hospital, Karanja and
thereafter he was referred to the Medical Officer, Nagpur where he
expired and where the post mortem was conducted, for the reasons best
known to the prosecution none of the doctors is examined from the side
of the prosecution. Even the learned Additional Public Prosecutor at the
appellate stage was also unable to supplement any reason as to why any
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of the doctor is not examined. Therefore, the injuries of the deceased
and the post mortem report remained to be proved. This in our view
was rightly considered by the learned Judge of the Court below against
the prosecution.
8. In the present case, the prosecution claims that the incident
was witnessed by the three witnesses. It is established that these three
eye witnesses are either close friends and relatives of the deceased.
Merely because the witnesses are closely associated with the deceased,
that by itself their evidence does not earn disqualification from the
consideration. However, the Court should always be on guard while
appreciating their evidence. Their evidence should inspire confidence
in the judicial mind before accepting their version as false implication at
their behest is not completely ruled out.
9. Subhash Deshmukh (PW3), who according to the
prosecution is one of the eye witnesses is also a witness to the inquest
panchanama (Exh.-26). The inquest was done by the police in his
presence. His evidence shows that though he got knowledge that police
had been to the village he had not contacted them. His statement is
recorded after four days. This witness was having opportunity to
disclose the names of the assailants to the police right at the time of
preparing the inquest panchanama by police. However, even though he
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was having an opportunity, for the reasons best known to him, he failed
to avail the said opportunity to disclose the names of the assailants.
Further, when the police had been to the village and the said fact was
well within his knowledge, he did not disclose the names of the
respondents as assailants and it is only on 18.11.2001, when he was
called police that time he disclosed the names of the respondents as
assailants. Interestingly, he has stated in his cross-examination that
Madhukar (PW1) told his name to the police and thereafter he was
called. His cross-examination reveals that he accompanied Madhukar
(PW1) while carrying the deceased from Karanja to Nagpur. He also
admitted that he did not report the matter to the Police Patil or failed to
lodge the report with Police Station, Karanja. It is also his admission
that when he had been to the Medical College at Nagpur, there police
were present and in spite of that he did not narrate the incident to the
police nor did he narrate the incident to the doctors who were attending
Sudhakar in spite of the inquiry by the doctor. In that view of the
matter, we affirm the finding recorded by the learned Judge of the
Court below that the evidence of Subhash Deshmukh is doubtful
inasmuch as there is a serious doubt about his presence on the spot.
10. Insofar as the evidence of Rajkumar Deshmukh (PW5) is
concerned, it also shows that his police statement is recorded after a
period of 18 days. This witness has tried to give an explanation in his
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evidence that he was out of the station. However, a close scrutiny of his
evidence shows that for a period of three days after the incident he was
very much present in the village. His evidence shows that though he
has witnessed the ghastly incident, he chose to perform his daily routine
rather than informing the matter to police machinery or at least to
Police Patil of the village. His evidence further shows that even after
returning from Balaghat, he did not voluntarily go to Police Station but
his mother asked that police had been to his place and therefore he
went to the Police Station and his statement was recorded. The conduct
of this witness therefore clearly shows that this witness is a highly
interested witness and the possibility of being introduced as an eye
witness is not completely ruled out.
11. Insofar as the other eye witness i.e. Rajendra Deshmukh
(PW6) is concerned, he also chose to remain silent till 18.11.2001 and
even on 18.11.2001, he went to the police station only when police
called him to give his statement. Till that time, he did not try to inform
the police on his own.
12. In our view, the learned Judge of the Court below has
rightly observed that the ocular evidence appears to be the version of
the interested witness. No independent witnesses are examined. There
is no prompt lodging of the FIR.
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13. By now, it is settled principle of law that unless there is
compelling reason, the appellate Court should not interfere with the
judgment of acquittal. At any rate, an order of acquittal shall not be
interfered with since the presumption of innocence of the accused is
further strengthened by acquittal. However, in a case where admissible
evidence is ignored, the appellate Court has to step in the matter and is
required to set aside the order of acquittal. It is also settled principle of
law that if two views are possible, the view taken by the trial Court
should not be interfered with unless it is manifest on record that the
trial Court has either not considered the admissible evidence or has
considered inadmissible evidence.
14. In the present case, the learned Judge of the Court below
has, in our view, correctly appreciated the evidence of the prosecution.
No fault can be pointed out in the appreciation of the evidence done by
the Court below. Consequently, this Court is not ready to interfere with
the well reasoned judgment of acquittal even on reappreciation of the
prosecution case, afresh.
15. Resultantly, the appeal and the revision filed by the State
and Madhukar Sirsam respectively are liable to be dismissed. Hence,
following order is passed.
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ORDER
(i) Criminal Appeal No.157/2003 as also Criminal
Revision No.1/2003 both are dismissed.
(ii) Judgment and order dated 25.11.2002 in Sessions Trial
No.50/2002 delivered by 2nd Ad hoc Addl. Sessions Judge,
Wardha, is maintained.
(iii) Muddemal property be dealt with as directed by the
trial Court after the appeal period is over.
(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)
kahale
