Bombay High Court
Dadasaheb Thakaji Maske vs The State Of Maharashtra on 14 November, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.327 OF 2013
Dadasaheb Thakaji Maske
Age 27 years, Occu: Agriculture
R/o Sawargaon, Taluka Ashti,
District Beed
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. A. K. Bhosale, Advocate for Appellant.
Mr. S. B. Joshi, A.P.P. for Respondent
...
CORAM: S.S. SHINDE AND
MANGESH S. PATIL, JJ.
DATE OF RESERVING JUDGMENT : 3RD NOVEMBER, 2017
DATE OF PRONOUNCING JUDGMENT: 14TH NOVEMBER, 2017
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
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Judgment and order dated 31st August, 2013,
passed by the the Additional Sessions Judge-2,
Beed in Sessions Case No. 141 of 2012 thereby
convicting accused/Appellant - Dadasaheb Thakaji
Maske for the offence punishable under section 302
of the Indian Penal Code (for short "I.P. Code")
and sentencing him to suffer rigorous imprisonment
for life and to pay fine of Rs.5000/- and in
default, to suffer further rigorous imprisonment
for six months.
2. The prosecution case, in brief, is as
under:-
A) The informant Babasaheb Shaharam Maske, is
the resident of village Sawargaon, Taluka Ashti,
District Beed. Deceased Shaharam Maske was his
father. Land of accused No.1 Dadasaheb is adjacent
to the land of the informant. A criminal Case
bearing No.654 of 2011, filed by the informant is
pending against the accused. On 22nd June 2012,
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deceased Shaharam did file N.C. bearing No.177 of
2012 for the offences punishable under sections
323, 504, 506 read with 34 of the I.P. Code.
B) It is further alleged that, on 25th June 2012,
at about 3.30 p.m. the informant and his mother
Sakharbai, after fetching the water from the well
for the purpose of drinking, were returning to the
house. Father of the informant, Shaharam was
sitting on a platform constructed of stone,
under the Banyan tree in the village. At that
time, accused abused father of the informant
stating that, why he has lodged First Information
Report against them, and then accused started
beating deceased by fist and kick blows. Accused
No.1 Dadasaheb assaulted the deceased with the
help of the wooden log. Due to said assault, the
father of the informant sustained bleeding injury
on his head. Witnesses Raju Shamrao Maske, Raju
Sukhdeo Maske and Mohan Maroti Maske pacified the
quarrel. Thereafter accused ran away. The father
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of the informant i.e. deceased Shaharam became
unconscious. The informant and others carried him
to the City Care Hospital for treatment. While
the treatment was going on, the deceased Shaharam
died in the Hospital. On the next day, the dead
body was taken to Civil Hospital, Ahmednagar for
postmortem examination. Thereafter, informant
brought the dead body at village Sawargaon and
performed funeral. The informant lodged the First
Information Report against the accused, at Ambhora
Police Station.
C) On the basis of the First Information Report
lodged by the informant, offence bearing Crime
No.85 of 2012 under Sections 302, 504 read with
34 of the I.P. Code was registered against the
accused at Ambhora Police Station. The
Investigating Officer investigated the crime, and
submitted the charge sheet in the Court of
J.M.F.C., Ashti. The J.M.F.C., Asthi committed the
case to the Court of Sessions, Beed, as offence
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under section 302 of the I.P. Code is exclusively
triable by the Court of Sessions.
D) The charge under sections 302, 504 read
with 34 of the I.P. Code was framed against the
accused. The charge was read over and explained
to the accused in vernacular. The accused pleaded
not guilty and claimed to be tried. Their defence
was of total denial.
3. It is pertinent to note that there were in all
four accused before the trial court, i.e. accused
No.1 - Dadasaheb Thakaji Maske, who is appellant
in this appeal, accused No.2 - Kailas Thakaji
Maske, accused No.3 - Sujaanbai Thakaji Maske and
accused No.4 - Kavita Kailas Maske. After
recording the evidence and conducting full fledged
trial, the trial Court acquitted original accused
Nos. 2, 3 and 4 from all the offences with which
they were charged. The trial court convicted
accused No.1/appellant Dadasaheb Thakaji Maske for
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the offence punishable under section 302 of the
I.P. Code and sentenced him to suffer rigorous
imprisonment for life and to pay a fine as afore-
stated. Hence this Appeal by the accused
Dadasaheb.
4. Learned counsel Mr. Bhosale appearing for
the Appellant invites our attention to the notes
of evidence and submits that though PW-3 Babasaheb
Maske stated that he witnessed the incident,
however his mother PW-6 Sakharbai Maske stated
that neither PW-3 nor she herself witnessed the
incident. He further submits that PW-7 Mohan Maske
stated in his examination-in-chief that he saw
accused Dadasaheb Maske assaulting deceased,
however, in his cross-examination, PW-7 did not
reiterate his statement in examination-in-chief
that he saw accused assaulting the deceased.
Learned counsel further submit that PW-8 Raju
Maske in his evidence though stated that accused
Dadasaheb was standing at the spot of incident
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with wooden log, nevertheless he has not stated
that he saw accused assaulting deceased. It is
further submitted that in fact if the version of
PW-7 and PW-8 is considered, it appears that both
of them came on the spot of incident together on
motorcycle, however, there is variance in their
evidence.
5. Learned counsel further submitted that
the PW-2 Namdeo Vithal Maske, witness on inquest,
in his cross-examination, stated that while
climbing steps deceased fell down and as a result
sustained injuries. There is no re-examination on
this aspect by the prosecution. The medical
officer has stated that injuries sustained by the
deceased are possible due to fall. Therefore,
evidence of the medical officer corroborates the
version of witness on inquest. It is submitted
that there is delay of about 24 hours in lodging
the First Information Report. Learned counsel
further submits that the trial Court has not
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properly appreciated the evidence brought on
record, and came to the wrong conclusion.
Therefore, he submits that the Appeal may be
allowed.
6. Learned A.P.P. appearing for the State
also invites our attention to the notes of
evidence and in particular evidence of eye
witnesses i.e. PW-3 Babasaheb, PW-6 Sakharbai,
PW-7 Mohan and PW-8 Raju and submits that
informant PW-3 Babasaheb, son of the deceased and
PW-6 Sakharbai, wife of the deceased, have
witnessed the incident. Both of them have
specifically stated that accused Dadasahed
assaulted deceased Shaharam by wooden log. He
further submits that PW-7 Mohan and PW-8 Raju have
also witnessed the incident and they both have
also stated that accused Dadaram assaulted
deceased. He further submits that after
considering the entire evidence on record, the
trial Court has convicted the accused and the
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findings recorded are in consonance with the
evidence brought on record. He therefore submits
that the Appeal may be dismissed.
7. The prosecution has examined in all 12
witnesses. Firstly, we will consider the evidence
of PW-1 Navnath Vithoba Shendge, PW-4 Kazi
Majibuddin Jiyauddin, PW-5 Dattatraya Mhatardeo
Maske, PW-9 Ashok Eknath Khakal, PW-10 Shantaram
Murlidhar Kamble and PW-12 Mahendra Damodhar
Ahire.
8. PW-1 Navnath Vithoba Shendge deposed that
on 26th June 2012, he was called by police of
Ambhora Police Station. Police seized the clothes
of the deceased Shaharam Dadaba Maske under the
panchnama. One Uparna, one handkerchief and one
Shawl were seized under the panchnama. The clothes
were stained with blood. He deposed that Muddemal
Articles 2 to 4 before the Court are the same. He
proved panchnama Exhibit 64. During the course of
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cross-examination, PW-1 Navnath admitted that the
Shawl seized under the panchnama is not before the
Court. He stated that Babasaheb Maske, son of
deceased was with him. They know each other.
9. The prosecution has examined PW-4 Kazi
Mujibuddin Jiyauddin, police officer, to prove
that prior to the incident in question i.e. on
22nd June, 2012 deceased Shaharam Maske lodged his
complaint that accused slapped him as well as
abused him and threatened to kill him and on the
basis of same, he has registered the N.C. bearing
No.177 of 2012. He was thoroughly cross-examined
by the defence. The prosecution has also examined
PW-5 Dattatraya Mhatardeo Maske, a tempo driver,
who carried deceased Shaharam Maske by tempo at
Ahmednagar.
10. The prosecution has examined PW-9 Ashok
Eknath Khakal, as a panch witness to prove the
spot panchnama and seizure panchnama regarding the
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alleged weapon used in the crime. However, this
witness has not supported the prosecution case and
turned hostile. The prosecution examined PW-10
Shantaram Murlidhar Kamble as a panch witness to
prove that accused had made disclosure statement
that he was ready to produce wooden log and that
at the instance of accused wooden log was seized.
However, this witness also has not supported the
prosecution case and turned hostile.
11. PW-12 Mahendra Damodhar Ahire is the
investigating officer. He deposed about the manner
in which he has carried out the investigation of
the crime.
12. The prosecution has mainly relied upon
the evidence of the informant PW-3 Babasaheb
Shaharam Maske and PW-6 Sakharbai w/o Shaharam
Maske claiming that they have witnessed the
incident.
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13. PW-3 Babasaheb Shaharam Maske deposed
that he is residing with his mother, father, wife
and other family members. Deceased Shaharam was
his father. Accused No.1 Dadasaheb is his cousin
brother. He is having agricultural land at village
Sawargaon. Land of the accused is adjacent to his
land. There is a dispute between them and the
accused on the ground of landed property. Before
three days of the incident, accused beat his
father, therefore they filed N.C. case against the
accused on 22nd June 2012. He further deposed that
the incident took place on 25th June 2012. On that
day he himself and his mother had gone to bring
the water from the well, at about 3.00 p.m. His
father was sitting on the platform constructed of
stone under the Banyan tree. Accused abused his
father and also assaulted the father by fist and
kick blows. Accused No.1 was having wooden log
with him. Accused No.1 beat with wooden log to his
father. His father had sustained injuries to his
head. They went to the spot. Mohan Maske, Raju
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Maske, Sukhdeo Maske and he himself separated the
quarrel. Thereafter they took his father to
Ambhora for treatment and thereafter his father
was taken to Ahmednagar. First his father was
taken to the Civil Hospital, Ahmednagar and
thereafter he was referred to City Care Hospital.
Treatment was going on. His father died at about
11.00 p.m. Dead body of his father was taken to
the Civil Hospital Ahmednagar for postmortem.
Thereafter they brought dead body of his father to
his village Sawargaon. Funeral was done at about
11.00 a.m. Thereafter he went to Ambhora Police
Station and lodged the complaint.
. During the course of cross-examination,
PW-3 Babahased stated that deceased Shaharam was
having one brother by name Thakaji. Thakaji having
two sons by name Dadasaheb and Kailash. He is the
only son of Shaharam. There is dispute between
him and accused on the ground of agricultural
land. Incident took place in the month of June,
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2012. The name of his mother is Sakharbai. He
denied that sowing operation was going on at that
time. They came to know that his father had
sustained injury. Therefore, he himself and his
mother went towards his father. He denied that
people had gathered at the spot. When they went to
the spot his father was lying. He admitted that he
himself and some other persons lifted his father
and put him on the platform and thereafter took
him for the treatment at Ahmednagar, by tempo. He
admitted that first his father was taken at
Suleman Deola P.H.C. He further stated that from
Suleman Deola they went to Ambhora police station.
He had informed the incident to police of Ambhora
police station. Thereafter they took his father to
Ahmednagar in Civil Hospital. His father was
referred to City Care Hospital from Civil Hospital
and again he was taken to Civil Hospital. He
further stated that he made a complaint about the
incident in Civil Hospital, Ahmednagar. They
returned to Sawargaon at about 10.00 a.m. on 26th
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June 2012. Mohan Maruti Maske and Raju Shamrao
Maske are resident of village Sawargaon. He has
taken help of Mohan Maske and Raju Maske in this
matter. He himself, Mohan Maske and Raju Maske
went to Ambhora police station to lodge the
complaint. He denied that he himself, Mohan and
Raju decided to lodge the complaint against the
accused. He admitted that Vishwanath Maske is the
police patil of their village. He denied that
false case is filed due to dispute of landed
property. He denied that his father fell on the
platform and sustained injuries.
14. Thus, if the evidence of PW-3 Babasaheb
is minutely considered, though he has stated in
examination-in-chief that he himself and his
mother has witnessed the incident, however during
the course of cross-examination, he stated that
they came to know that his father had sustained
injury and therefore he himself and his mother
went to him. He specifically stated that when they
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went to the spot, his father was lying. He further
admitted that he himself and some other persons
lifted his father and put him on the platform and
thereafter took him for the treatment at
Ahmednagar, by tempo. Thus, from the perusal of
cross-examination of PW-3 Babasaheb, it appears
that when this witness and his mother went to the
spot, they saw Shaharam was lying there in injured
condition.
15. Now we will consider the evidence of PW-6
Sakharbai w/o Shaharam Maske, the mother of the
informant, along-with whom, informant claims that
he witnessed the incident. PW-6 Sakharbai w/o
Shaharam Maske deposed that deceased Shaharam was
her husband, and the informant is their son.
Accused Nos.1 and 2 are her nephews. Their lands
are adjacent to each other. There is a dispute in
between her family and family of the accused on
the ground of agricultural land. Before 2 to 3
days of the incident accused had beaten her
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husband. Her husband had lodged the complaint in
the police station. On the date of incident, she
herself and her son Babasaheb had gone to bring
water from the well. Her husband was sitting under
the Banyan tree on a platform. Accused beat her
husband. Accused No.1 beat her husband by wooden
log. Her husband had sustained bleeding injury.
Accused Nos.1 and 2 scuffled with them. Mohan
Maske and Raju Maske came to separate the quarrel.
Accused ran away. Her husband died on the spot.
There was head injury to her husband. They took
her husband to Civil Hospital, Ahmednagar for the
treatment. Her husband was referred to City Care
Hospital where he died at 11.00 p.m. Funeral was
performed on the next day.
. During the course of cross-examination,
PW-6 Sakharbai stated that they were taking
water from their well to their house. She further
stated that there is house of Parbati Maske
towards eastern side of her house. There is house
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of Kailas Maske towards western side of her house.
Towards northern side of their house, there is
house of Gaike. Complainant and she herself were
bringing water together. The distance between
the place of incident and their house is 700 to
800 meters approximately. When she was putting the
pot of water in her house, she heard the voice
from the side of Banyan tree. When they went to
the spot, her husband was lying on the platform.
10 to 15 persons had gathered from the village.
There used to be assembly of villagers under the
Banyan tree at noon time. Dattu Maske came. Her
husband was put in the tempo and taken to
Ahmednagar. When they were out of the village,
Raju Maske and Mohan Maske met them in the
transit. They met them at a distance of 4 to 5
Kms. from the village. They accompanied them to
Ahmednagar. She further stated that they came back
from Nagar on the next day along with Raju Maske
and Mohan Maske. Mohan Maske was the member of
Grampanchayat. Wife of Raju Maske was also member
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of the Grampanchayat. She admitted that she
herself, her son, Raju Maske and Mohan Maske came
together and decided to lodge the complaint
against the accused. She further admitted that
they were under the impression that if complaint
was lodged, dispute of agricultural land will come
to an end. She admitted that therefore they
lodged complaint against the accused. PW-6
Sakharbai further stated that on 26th June 2012
she herself, her son, Raju Maske and Mohan Maske
went to Ambhora police station in the evening. Her
statement was recorded by police. She has not
stated to the police that there was scuffle
between them and accused. She has stated before
the police as well as in the Court that Raju and
Mohan tutored her. She denied that suggestion that
whatever she has stated in the examination-in-
chief, is ex facie false.
16. If the evidence of PW-6 Sakharbai is
considered in its entirety, the same is completely
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shattered in her cross-examination. She stated in
her cross-examination that, when she was putting
the pot of water in her house she heard the noise
from the side of Banyan tree, she herself and her
son went towards Banyan tree, when they reached at
the spot her husband was lying on the platform, 10
to 15 persons had gathered from the village, her
husband was put in the tempo and taken to
Ahmednagar. She has admitted that she herself, her
son, Raju Maske and Mohan Maske came together and
decided to lodge the complaint against the
accused. PW-6 Sakharbai has further specifically
admitted that they were under the impression that
if complaint was lodged, dispute of agricultural
land will come to an end and therefore they
lodged complaint against the accused. She has also
admitted that she had stated before the police and
deposed before the Court as Raju and Mohan had
tutored her. Thus, it is clear that though PW-3
Babasaheb claims that he has witnessed the
incident along with his mother, his mother PW-6
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Sakharbai does not state so and as per her
version, when they both went to the spot, her
husband was lying on the platform. Though PW-6
Sakharbai has stated that when they went to the
spot, accused Nos.1 and 2 scuffled with them, and
10 to 15 persons from the village had gathered
there, PW-3 Babasaheb has not stated so.
Therefore, evidence of PW-3 Babasaheb and PW-6
Sakharbai is not consistent and does not
corroborate with each other and therefore those
are not reliable and trustworthy.
17. The prosecution has further placed
reliance on the oral testimony of PW-7 Mohan
Maroti Maske and PW-8 Raju Shamrao Maske, alleged
eye witnesses to the incident. Therefore, we will
now consider the evidence of PW-7 Mohan and PW-8
Raju.
18. PW-7 Mohan Maroti Maske deposed that he
knows the accused who are from his village. He
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knows the complainant and his mother, Sakharbai.
Incident took place on 25th June, 2012. He himself
and Raju Maske were going on motorcycle at about
3.00 to 3.30 p.m. The mob had gathered near the
Banyan tree. Accused No.1 was beating deceased
Shaharam by wooden log. Deceased Shaharam had
sustained bleeding head injury. Thereafter
deceased was shifted to Nagar for the treatment.
On the next day at about 11.00 a.m. Shaharam died.
. During the course of cross-examination,
PW-7 Mohan stated that the population of the
village Sawargaon is 3000. There are nine members
of the Grampanchayat. He contested the election of
the member of the Grampanchayat. Advocate Sahebrao
Maske is his nephew, who is also political leader.
Vishnu Ganpat Maske was his nephew, who has
committed suicide. He admitted that it was the
allegation of parents of Vishnu that he was
responsible for suicide of Vishnu. He used to go
usually to Ashti Court. Earlier also he has
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deposed in the Court of Ashti. He saw the mob
under the Banyan tree. They entered into the mob
and saw that Shaharam was lying on the platform.
Thereafter complainant Babasaheb and his mother
Sakharbai came to the spot. There was mob of 20
to 25 persons present under the Banyan tree before
he reached there. Thereafter they took deceased by
tempo to Suleman Deola, Ambhora and Nagar. He
denied the suggestion that he has not seen the
incident personally.
19. PW-8 Raju Shamrao Maske deposed in tune
with the deposition of PW-7 Mohan. PW-8 Raju
deposed that he knows the accused. He was knowing
the deceased Shaharam. Incident took place prior
to one year. On that day he himself and Mohan
Maske were coming on motorcycle at about 3.00 to
3.30 p.m. They saw that deceased Shaharam was
lying on the platform under the Banyan tree. There
was mob under the Banyan tree. Accused No.1 was
having wooden log with him. There was bleeding
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injury to the head of deceased Shaharam.
Thereafter Shaharam was taken to Ahmednagar for
treatment.
. During the course of cross-examination,
PW-8 Raju stated that he himself and Mohan Maske
were on the same motorcycle. The incident was over
before both of them reached the spot. He further
stated that his wife was the member of
Grampanchayat. She was elected from Ward No.1. He
denied the suggestion that accused No.1 was from
his rival political group and therefore he was
deposing false against him.
20. After careful perusal of the evidence of
PW-7 Mohan and PW-8 Raju, it appears that they are
the chance witnesses. They claim that both of them
came on one motorcycle at the spot of incident.
Though PW-7 Mohan has stated that accused No.1
i.e. Appellant was beating deceased Shaharam by
wooden log, PW-8 Raju stated that they saw that
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deceased Shaharam was lying on the platform under
the Banyan tree, there was mob under the Banyan
tree and that accused No.1 was having wooden log
with him. Thus, evidence of both these witnesses
is not at all consistent and therefore the same is
not at all trustworthy, and explicit reliance
cannot be placed on such inconsistent evidence.
21. Now we will consider the evidence of PW-2
Namdeo Vithal Maske. He deposed that on 26th June,
2012, he was called by the police for the
panchnama at Civil Hospital, Ahmednagar. The
panchnama was of dead body of Shaharam Dadaba
Maske. There were injury marks on head and near
right eye of the deceased. Police prepared the
panchnama of the dead body in their presence.
Another panch Abasaheb Gavhane was with him.
Panchnama Exhibit 66 bears his signature and
contents of it were true and correct.
. During the course of his cross-
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examination, PW-2 Namdeo stated that he is from
village Sawargaon. Deceased Shaharam was from his
village. The population of village is 3000 to
4000. There is a big temple of Machindranath at
Sawargaon. The age of deceased Shaharam was 65 to
66 years. Shaharam had to walk with the help of
stick. Incident took place on one platform
constructed of stones. Old persons used to seat on
the platform. He admitted that there were shops of
Grampanchayat near the platform. The shops of one
Firojbhai, Khanif Tailor and one Arjun Maske were
adjacent to the platform. There was a reading room
near the platform. There are small hotels and pan
stalls near the platform. There were steps to the
platform. He admitted that deceased Shaharam fell
while climbing the steps of the platform. Shaharam
sustained injuries to his head. He lifted Shaharam
and took him to the hospital. In the meanwhile
Shaharam was kept on ota (platform). He has took
Shaharam to the Civil Hospital, Ahmednagar by a
tempo belonging to Satish Rasal. Complainant, wife
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of deceased and 10 to 15 villagers were in the
tempo. Deceased was admitted in City Care Hospital
at Ahmednagar.
22. Upon perusal of the evidence of PW-2
Namdeo, in his cross-examination he has stated
that there were steps to the platform, where the
incident took place. He specifically admitted that
deceased Shaharam fell while climbing the steps of
the platform and sustained injuries to his head.
PW-2 Namdeo is examined by the prosecution and his
aforesaid admission is not at all challenged by
the prosecution in any manner.
23. The prosecution has examined PW-11 Dr.
Ganesh Ramnath Bade. He deposed that on 26th June
2012, he was attached to Civil Hospital,
Ahmednagar. On that day dead body of Shaharam
Dadaba Maske was referred for postmortem by
Topkhana police station, Ahmednagar at about 6.00
a.m. He has conducted postmortem examination from
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9.30 a.m. to 10.30 a.m. There was injury to the
left side of the head. He noticed following
internal injuries:
1) Fracture of skull at left parieto
temporal region 2 to 3 small pieces of
skull noted.
2) Sub dural haemorrhage at left
parieto temporal region.
. PW-11 Dr. Ganesh further deposed that
cause of death was due to sub-dural haemorrhage
due to head injury. Accordingly he has prepared
postmortem notes. Postmortem notes Exhibit-79 were
in his handwriting and it bore his signature.
Contents therein were true and correct. The
injuries mentioned in Exhibit-79 were possible by
wooden log before the Court.
. During the course of cross-examination,
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PW-11 Dr. Ganesh stated that the life span of a
man is 65 years. He admitted that age of the
deceased was 65 years. In this age the bones of
old persons are brital. If any old person falls on
hard and blunt substance, the injuries mentioned
in Exhibit-79 were possible. He admitted that if
any old person is assaulted with the help of
weapon like wooden log before the Court, there
will be small pieces of bones. The injury will
correspond with the diameter of the weapon. The
diameter of the wooden log before the Court was 3
to 4 Cms. In sutured wound one can say object is
hard and blunt but cannot mention the weapon. He
further stated that he could not opine by which
weapon the injuries were caused. His opinion
mentioned in examination-in-chief regarding injury
caused by the wooden log was not definite.
24. Thus, PW-11 Dr. Ganesh has admitted in
cross-examination that, if any person falls on
hard and blunt substance, the injuries mentioned
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in postmortem report Exhibit-79 were possible. We
find considerable force in the argument advanced
by the learned counsel appearing for the Appellant
that admission given by PW-2 Namdeo that, deceased
Shaharam fell while climbing the steps of the
platform, is corroborated by the admission of
Medical Officer PW-11 Dr. Ganesh that, if any old
person falls on hard and blunt substance, the
injuries mentioned in post-mortem report
Exhibit-79 were possible. On the strength of this
evidence, learned counsel appearing for the
Appellant has argued that possibility of deceased
falling on the platform constructed of stones and
sustaining fatal injuries cannot be ruled out. We
find considerable force in the argument of the
learned counsel appearing for the Appellant that,
as there is delay of about 24 hours in filing the
First Information Report, the possibility of
deliberation, concoction and false implication
cannot be ruled out. In support of his submission,
learned counsel relied upon the cross examination
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of PW-6 Sakharbai, wherein she admitted that she
herself, her son i.e. informant, Raju Maske and
Mohan Maske came together and decided to lodge the
complaint against the accused. PW-6 Sakharbai
further admitted that they were under the
impression that if complaint was lodged, dispute
of agricultural land would come to an end, and
therefore they lodged complaint against the
accused.
25. We have carefully considered the entire
evidence brought on record by the prosecution. As
is already observed, there were four accused
before the trial Court. On the same set of
evidence, the trial Court has acquitted original
accused Nos.2, 3 and 4 from all the charges with
which they were charged. The trial Court has also
acquitted accused No.1/ Appellant for the offence
punishable under Section 504 read with 34 of the
I.P. Code, however, convicted the Appellant for
the offence punishable under Section 302 of the
cria327.13
I.P. Code. The trial Court has mainly relied upon
the evidence of PW-3 Babasaheb, PW-6 Sakharbai,
PW-7 Mohan and PW-8 Raju. As already observed, the
evidence of these witnesses is not trustworthy and
reliable and on such evidence conviction cannot be
based, and therefore benefit of doubt deserves to
be given to the Appellant. The evidence brought
on record by the prosecution is not cogent,
sufficient, convincing and do not inspire
confidence, so as to prove the offence against the
Appellant beyond reasonable doubt. Therefore,
inevitable conclusion is that the Appellant is
entitled for the benefit of doubt. Hence we pass
the following order:
O R D E R
(I) The Criminal Appeal is allowed.
(II) The impugned Judgment and order
dated 31st August, 2013, passed by the
cria327.13
Additional Sessions Judge-2, Beed in
Sessions Case No.141 of 2002, to the
extent of convicting and sentencing the
accused/Appellant Dadasaheb Thakaji
Maske for the offence punishable under
Section 302 of the Indian Penal Code,
is quashed and set aside.
(III) The Appellant Dadasaheb Thakaji
Maske is acquitted of the offence
punishable under Section 302 of the
Indian Penal Code. Fine amount if
deposited as per the impugned Judgment
and order, be refunded to the
Appellant.
(IV) The Appellant is in jail, he be
set at liberty forthwith, if not
required in any other case.
(V) The Appellant - Dadasaheb Thakaji
cria327.13
Maske shall furnish the bail bonds of
Rs.15,000/- and surety of like amount
under Section 437-A of the Code of
Criminal Procedure, before the
concerned trial Court at Beed.
[MANGESH S. PATIL, J.] [S.S. SHINDE, J.]
asb/NOV17
