The State Of Maharashtra vs Ganesh Dnyanoba Wagh & Ors
2017 Latest Caselaw 8684 Bom

                                                          Cri. Appeal No. 614/02
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO. 614 OF 2002

       The State of Maharashtra,
       Through Police Station
       Tad-Kalas, Dist. Parbhani.                       ....Appellant.

               Versus


1.     Ganesh s/o. Dnyanoba Wagh,
       Age 27 years, Occu. Agril.,

2.     Namdeo s/o. Dnyanoba Wagh,
       Age 30 years, Occu. Agril.,

3.     Kerba Dnyanoba Wagh,
       Age 34 years, Occu. Agril.,

4.     Uttam s/o. Ramrao Wagh,
       Age 29 years, Occu. Agril.,

5.     Raosaheb s/o. Dajiba Wagh,
       Age 30 years, Occu. Agril.,

6.     Prakash s/o. Dajiba Wagh,
       Age 35 years, Occu. Agril.,

7.     Vishnudas s/o. Ramrao Wagh,
       Age 32 years, Occu. Agril.,

       All Accused R/o. Takal-Gavan,
       Tq. & Dist. Parbhani.                            ....Respondents.


Mr. S.D. Ghayal, APP for appellant/State.
Mr. S.B. Bhapkar, Advocate for respondent Nos. 1,2,3,5 & 6.
Mr. S.S. Rathi, Advocate for respondent Nos. 4 & 7.


                                CORAM   :     T.V. NALAWADE AND
                                              ARUN M. DHAVALE, JJ.

                                DATED       : November 14, 2017





                                                                Cri. Appeal No. 614/02





JUDGMENT : [PER T.V. NALAWADE, J.]

1)             The appeal is filed by the State to challenge the

judgment and order of acquittal of present respondents/accused

given in Sessions Case No. 222/2000, which was pending in the

Court of learned Additional Sessions Judge, Parbhani. The

respondents are acquitted of the offences punishable under sections

302, 325, 341, 149 etc. of Indian Penal Code ('IPC' for short) and

some provisions of Bombay Police Act. Both the sides are heard.

2) In short, the facts leading to the institution of the

present proceeding can be stated as follows :-

First informant Tukaram Janardan Korde is resident of

Taklgavan. On 21.2.2000 his uncle Pandurang had quarrel with

Ganesh Ashruba Wagh on the count of use of way passing through

the land of Pandurang.

3) The incident in question took place on 24.2.2000 at

about 10.00 a.m. Janardan, father of first informant was taking she-

buffalo towards the field for grazing. Near the school of village, his

father was intercepted by persons like Namdev (accused No. 2),

Kerba (accused No. 3), Ganesh (accused No. 1) and Uttam (accused

No. 4). They picked up quarrel with Janardan by saying that his

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brother Pandurang was unnecessarily picking up quarrels with them.

Then these persons assaulted Janardan by using sticks. He sustained

bleeding injuries to left hand, left leg and he sustained bleeding

injuries to other portions of the body. When Tukaram, first informant

went ahead to make inquiry, he was also assaulted. Rama, other

relative of first informant went there, but he was also assaulted.

These three persons were shifted in bullock-cart to Parbhani

Government Hospital. There Tukaram gave report and the crime

came to be registered for offences punishable under section 325, 34

etc. of IPC at C.R. No. 13/2000 in Tadkalas Police Station. The report

was recorded in hospital and it was sent to Tadkalas Police Station.

4) During the course of investigation, three injured were

referred for medical examination. Police prepared spot panchanama

on 25.2.2000. No blood or other article was found on the spot of

offence. The statements of injured eye witnesses and others came to

be recorded. Janardan died due to aforesaid injuries in the hospital

and the crime came to be converted to offence punishable under

section 302 of IPC. The names of other accused were also given and

so, the chargesheet came to be filed against as many as seven

accused persons. Accused pleaded not guilty when the charge was

framed. Eleven witnesses came to be examined. The Trial Court has

not believed the eye witnesses and benefit of doubt is given to the

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accused persons.

5) For proper appreciation of the evidence given by the eye

witnesses, it is necessary to consider the spot panchanama first. The

spot panchanama, Exh. 27 is not seriously disputed. This document

and the hand sketch map prepared shows that the incident had

taken place on main road having width of 20 ft. The school was at

the distance of 300 ft. from the spot of incident and on both the

sides of road, there were bushes. On western side of spot of

incident, there was land and house of Prakash Wagh. On eastern

side, there was land of Ramdas Wagh. Thus, in the vicinity, there

was the house of only Prakash Wagh and the school was situated at

the distance of 300 ft. from the spot of offence. In the F.I.R., it was

mentioned that deceased had left with cattle for the field and when

he was on the way to field, the incident took place.

6) Tukaram (PW 1), the first informant has given evidence

that Rukminibai told him that accused were assaulting Janardan and

so, he went there. He has given evidence that when he reached

there, they decided to make arrangement like brining bullock-cart

for shifting Janardan to the hospital as he was lying there in injured

condition. He has given evidence that accused assaulted to him and

also to his cousin brother Ramdas by using sticks. He has given

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evidence that they all were required to be shifted due to assault

made on them and he became unconscious due to the assault. He

has deposed that he regained consciousness on the mid night and

his father expired on the next day i.e. on 25.2.2000.

7) Ramdas (PW 4) is the other injured eye witness and he

has deposed that he learnt from Rukminibai that some persons were

assaulting Janardan. He has deposed that he asked Tukaram to take

bullock-cart and he went ahead towards the place of incident. He has

deposed that when he reached the spot, he noticed that Janardan

was lying in injured condition and he had sustained bleeding injuries.

He has deposed that accused then assaulted him and when Tukaram

came with bullock-cart after some time, Tukaram was also assaulted

by using sticks by all the accused.

8) The evidence of PW 1 and PW 4 shows that they learnt

about the incident from Rukminibai (PW 2). She is the wife of real

brother of Janardan and there was quarrel with her husband in the

past as there was dispute between her husband and the accused.

Thus, she is interested witness. Her evidence is very vague. She has

deposed that she went to the spot after hearing from crowd about

the incident. She has given evidence that after going to the spot,

she noticed that all the accused persons were giving beating to

Cri. Appeal No. 614/02

Janardan and she returned to home and narrated the incident to

Tukaram and Ramadas. She has given evidence that when Tukaram,

Ramdas and she went to the spot, they noticed that accused were

still giving beating to Janardan. She has given evidence that accused

persons pulled down Tukaram from bullock-cart and they gave

beating to him and beating was given to Ramdas also.

9) Meerabai (PW 3) is examined as other eye witness. She

has given evidence that when she heard noise of quarrel and

shouting, she was present inside of the house and to see what

happened, she went to the roof of the house and from there she

noticed that fighting was going on behind the school. She has

deposed that accused were present there. She has given evidence

that after going to the place of incident, in her presence beating was

given to Janardan by accused and Janardan was lying on the ground.

She has deposed that Ramdas came there and he was also beaten

and thereafter, Tukaram came there, but Tukaram was also beaten

by the accused. The statement of this witness was recorded after 18

days of the incident and that is admitted by this witness. She has

tried to say that the distance between the place of incident and her

house is around 200 ft. That is not correct. The evidence of other

witnesses and even spot panchanama show that after the distance of

300 ft., there are structures like school building and house of one

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Wagh. No map was prepared by investigating agency to show the

exact location of the house of this lady. Due to belated disclosure of

this lady and other circumstances, this Court holds that the evidence

of this lady cannot be relied upon in such a serious case.

10) The evidence of Tukaram (PW 1) shows that the distance

between the school and place of incident is around 1000 to 1200 ft.

and spot is not visible from the side of school or from the side of

temple. The temple is at the distance of 300 to 350 spaces from the

school. The place of incident is at the distance of 1000 to 1500 ft.

towards western side of village and it is away from the temple. The

evidence of this witness shows that there is always traffic on this

road, where the incident took place. But, there is no independent

eye witness with the prosecution. He has admitted that it is not

possible for him to hear the hue and cry from his residential place if

the incident takes place at the place of the present matter.

11) The evidence of Ramdas (PW 4) also shows that it was

not possible for him to reach the spot before incident was over. Both

these witnesses have given evidence that Rukminibai had informed

them about the incident, but her evidence is very vague and

distance between spot of offence and residential place of these two

witnesses needs to be kept in mind. These circumstances have

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created a probability that these witnesses had no opportunity to see

the actual incident of assault made on Janardan.

12) No explanation is given by Tukaram (PW 1) as to why the

names of only four accused were mentioned in the F.I.R., Exh. 19.

When the evidence is very vague and no particular part played by

each accused is mentioned, such omission cannot be ignored.

Tukaram (PW 1) has given evidence as injured eye witness and so,

he would have given names of all the seven accused in the F.I.R. if

seven accused persons were really involved in the incident and they

had really given beating to him also. But names of only four accused

were mentioned in F.I.R. and that omission was confronted to first

informant.

13) Prosecution has examined two doctors to prove the

injuries which were found on the person of Janardan. Dr. Ramesh

(PW 10) had noticed following three injuries on the person of

Janardan.

(i) Contusion with fracture, right ulna-right hand, lower

in size 5 cm. x 3 cm. Grievous injury, weapon hard and

blunt object, age within 12 hours.

(ii) Contused lacerated wound : right arm, size 7 cm. x 1

cm. x 1/2 cm., simple, caused by hard and blunt object,

Cri. Appeal No. 614/02

age within 12 hours,

(iii) C.L.W. with fracture, tibia, in left leg, of size 7 cm. x

1 cm. x 1/2 cm, grievous in nature, caused by hard and

blunt object, age within 12 hours.

The age of aforesaid injuries was within 12 hours and Janardan was

shifted to Civil Hospital and examined immediately and so, it can be

said that these injuries were noticed by Dr. Ramesh (PW 10).

14) Dr. Rajeshwar (PW 9) conducted P.M. examination on the

dead body of Janardan on 26.2.2000 between 8.00 a.m. and 9.00

a.m. He found following five injuries :-

(i) Contusion right fore-arm 6 x 3 cm. skin bluish

discolouration evidence of fracture Radio-Ulna, age of

injury within 24 to 48 hours.

(ii) C.L.W. on left leg 2 x 1 x 1/2 cms. clotted blood over

injury. Skin around C.L.W. bluish colour. Age within 24 to

48 hours.

(iii) Contusion right leg 4 cm. x 3 cm. Skin Bluish colour,

Age 24 to 48 hours.

(iv) Contusion scalp over occipital region, 3 cm. x 2 cm.

bluish black discolouration of skin, age 24 to 48 hours.

(v) Abrasion chest on right side 4 cm. x 1 cm. Skin bluish

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colour, age 24 to 48 hours.

Janardan died on the night between 25th and 26th i.e. 4.30 a.m. of

26.2.2000. Injury No. 4 found by Dr. Rajeshwar (PW 9) on the dead

body was not noticed by Dr. Ramesh (PW 10). Injury No. 4 proved to

be fatal as injury No. 4 had caused intra carnial haemorrhage and

death is caused due cardio-respiratory arrest due to intra-carnial

haemorrhage. It is already observed that the evidence of so called

eye witnesses is very vague and it is difficult to believe that they

actually witnessed the incident of assault. If seven accused were

giving beating, in ordinary course, more injuries would have been

found on the person of Janardan, but the first doctor noticed only

three injuries. It is not certain as to who gave blow on the head of

the deceased. As genesis of the incident is not known and all the

witnesses have deposed that they went to the spot after hearing

about the incident, it is difficult to hold that all the accused gave the

beating and caused the death. It is difficult to ascertain as to which

accused was present when the incident was started and as to which

accused came later on or whether any accused came to the spot

later on. There was previous enmity and due to that, there is clear

possibility of false implication. It is not possible to separate the truth

from the falsehood in the present matter.

Cri. Appeal No. 614/02

15) For not believing Tukaram and Ramdas, there is one

more strong circumstance. The evidence of Dr. Ramesh (PW 10) and

the injury certificates in respect of Tukaram and Ramdas at Exhs. 42

and 43 show that age of their injuries was within 24 hours. Thus,

they were not having fresh injuries. Injuries were contusions, caused

by hard and blunt object. At the cost of repetition, it needs to be

mentioned that the same doctor has mentioned that the age of the

injuries of Janardan as within 12 hours. These circumstances create

probability that these two so called eye witnesses were not involved

in the incident and they were not assaulted at the spot where

Janardan was found. Thus, the first version given by Tukaram was

different and the evidence given before the Court has no

corroboration of F.I.R. on material particulars. Due to all these

circumstances, this Court holds that it is not possible to give

conviction to accused persons in such a serious case. This Court

holds that Trial Court has not committed any error in giving decision

of acquittal in favour of accused persons. In the result, the appeal

stands dismissed.

       [ARUN M. DHAVALE, J.]                       [T.V. NALAWADE, J.]



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