Bombay High Court
The State Of Maharashtra vs Limbaji Poundal And Ors on 24 November, 2017
Bench: T.V. Nalawade
1 APEAL16.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 16 OF 2002
The State of Maharashtra,
Through P.S.O. Bori,
Tq. Jintoor, Dist. Parbhani. ... Appellant
VERSUS
1. Limbaji S/o Panditrao Poundal
Age : 30 years, Occu. Agriculture.
2. Prakash S/o Panditrao Poundal,
Age : 25 years, Occu. Agriculture.
3. Pama @ Parmeshwar S/o Tukaramji Poundal,
Age : 27 years, Occu. Agriculture.
4. Pandit S/o Umrao Poundal,
Age : 55 years, Occu. Agriculture.
5. Purabhaji S/o Shankarrao Giram,
Age : 27 years, Occu. Agriculture.
6. Namdeo S/o Tukaram Poundal,
Age : 32 years, Occu. Agriculture.
All accused R/o. Sonna, Tq. Jintoor,
Dist. Parbhani. ... Respondents
(Ori. Accused)
..........
Mr S. J. Salgare, APP for the appellant/State
Mr P. N. Nagargoje, Advocate for respondents (appointed).
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
DATE : 24th November, 2017.
2 APEAL16.2002
JUDGMENT (A. M. DHAVALE, J.) :-
1. In Sessions Case No. 149/98, the ld. Addl. Sessions Judge,
Parbhani by judgment dt. 07.09.2001, acquitted all six accused who
were charged for offences u/s 147, 148 and 302 r/w 149 of IPC.
Aggrieved thereby the State has preferred this appeal.
2. The prosecution was set into motion on the FIR lodged by
PW3-Shyamrao Nagare on 18.06.1998 at 09:45 p.m. at Bori Police
Station, Tq. Jintur, Dist. Parbhani. As per the FIR, PW3 Shamrao was
having agricultural land at Koudgaon and Sonna. Deceased Munjaji
was son of his sister in law. He was previously serving in Police
Department but his services were terminated. He thereafter
purchased land of 1 acre and 5 guntha at Sonna from accused no. 4-
Pandit and accused No. 1-Limbaji. Both of them were always telling
him that he should return his agricultural land and take back his
money. On 18.06.1998, PW3 Shamrao resident of Koudgaon had
gone to Sonna for getting his agricultural equipments repaired. That
time, Munjaji met him and told him that he had brought seeds and
was going to sow seeds. At 01:00 p.m., he requested him to
accompany him in the operation of sowing. Both of them found that
three labourers including two ladies of accused no.2-Prakash were
doing the work in the field of Munjaji. Munjaji told them that he had
3 APEAL16.2002
purchased the said land and they should not sow the said land. Then
those labourers left the spot. Accused No. 4 Pandit that time came
there and directed his labourers to go to the village and requested
Munjaji to come to him for talk. After sometime Munjaji and PW3-
Shamrao again met accused no. 2 - Prakash, accused No. 1 Limbaji
and accused no. 4 Pandit near the house of Ranga Poundal. They
discussed that the agricultural dispute between them should be
compromised. Then PW3 Shamrao went to a carpenter. At about
05:00 p.m., he heard voices of quarrel from the side of road and he
came there. He found that, Munjaji was lying there and accused nos.
1 to 6 were beating him. PW3 Shyamrao found that there were
profusedly bleeding injuries on the thighs of both legs of Munjaji.
Munjaji told him that, accused nos. 1 to 6 were annoyed as he was
not returning their field and assaulted him with axe, stone, sticks and
also gave blows of stone on his private parts. Then PW3 called PW4
Nathrao PW5 Shrirang from Jalalpur with their bullock-cart. They
came by bullock-cart upto Asegaon and then brought Munjaji in a
Jeep from Asegaon to Bori. By the time Munjaji came into the
hospital, he became unconscious and he was declared brought dead.
3. On the basis of such FIR, the crime was registered at C.R.
No. 0056/98 u/s 147, 148, 149, 302 IPC and the offence was
4 APEAL16.2002
investigated into. The investigation reveals that, there were oral
dying declarations given by deceased Munjaji before three witnesses
Pws 3, 4 & 5. Besides, there is additional evidence of recovery of
blood stained axe and blood stained clothes from the accused
persons. After completion of usual investigation, the charge-sheet
was submitted in the court. In due course, the case was committed to
the court of sessions.
4. Ld. Addl. Sessions Judge, Parbhani framed charge at Exh.9.
The accused pleaded not guilty. The prosecution examined eight
witnesses. It is the defence of the accused that, due to long standing
land dispute, they have been falsely implicated. The ld. Addl.
Sessions Judge accepted the defence case and acquitted the accused.
Hence, this appeal.
5. Ld. APP - Mr S J Salgare has argued that there is
convincing evidence of enmity and dying declarations given by
Munjaji before Pws 3 to 5. There is also recovery of axe by accused
no. 1 - Limbaji and accused no. 2 - Prakash. The clothes of the
accused were also seized and those disclosed blood stains of human.
5 APEAL16.2002
6. Per contra, Mr Nagargoje, learned counsel (appointed) for
the respondents/accused argued that, the evidence of PWs 3 to 5 on
dying declarations is contradictory to each other. There is no proper
discovery as the evidence did not disclose that any of the accused had
disclosed the spot where the muddemal weapons or clothes were
concealed. The admissions disclosed that the statements allegedly
made by accused for discovery were not voluntary as their hands
were tied with a rope. the articles seized were not properly seized.
There is delay in lodging the FIR. There are only two incised wounds
and the evidence on record that Munjaji was assaulted by six persons
is not consistent with the medical evidence. The evidence cannot be
accepted partly only against some of the accused when it is a clear
case of false implication. The view taken by the ld. trial Judge is
reasonable and probable and no interference is called for.
7. The points for our consideration with findings thereon are
as follows.
Sr. No. Point Finding
(i) Whether deceased Munjaji met In the affirmative.
with a homicidal death?
(ii) Whether accused nos. 1 to 6 have Not proved.
committed murder of Munjaji?
6 APEAL16.2002
(iii) Whether accused nos. 1 to 6 in Not proved.
prosecution of the common object
used criminal force and thereby
committed rioting?
(iv) Whether accused nos. 1 to 6 were Not proved.
armed with deadly weapons at the
time of being members of unlawful
assembly?
(v) What order? The appeal is
dismissed.
REASONS
8. The prosecution has examined eight witnesses and
produced documents as follows.
(A) Witnesses to oral dying declarations :
(i) PW3-Shamrao, the informant (FIR Exh. 62).
(ii) PW4 - Nathrao, maternal uncle of the deceased Munjaji.
(iii) PW5 - Shrirang.
(B) Panchas :
(i) PW1 Rambhau is a panch to the seizure of clothes of the
accused [Panchanama Exh. 49 to 58]. His evidence is of no
use for the prosecution. Ld. APP has cross-examined him
7 APEAL16.2002
with the permission of the court. Nothing useful is brought
on record.
(ii) PW2 Narayan, panch to the Spot Panchanama Exh. 60,
turned hostile.
(C) Medical Evidence :
(i) PW6 Dr. Nusarat Sultana, who has conducted post-mortem
(PM notes Exh. 73) and issued provisional death certificate.
(D) Investigating Officer : PW7 Laxman Mankawar, PSI has
drawn
(i) Inquest panchanama Exh. 47.
(ii) Spot panchanama Exh. 60.
(iii) Memorandum of accused No. 1 - Limbaji Exh. 56 and
discovery of Axe (article 1).
(iv) Memorandum of accused no .2 -Prakash, Exh. 57 and
discovery of another axe (article 2).
(v) He has also deposed about seizure of guru shirt and pant
(articles 3 and 4) and discovery statements of accused -
Prabhakar (?) Exh. 58 and recovery of stick (article no. 5).
He had seized clothes of the deceased under seizure memo
8 APEAL16.2002
Exh. 52.
9. PW8 - PSI Subhash Bhujang, he has seized clothes of
accused nos. 3, 4 and 6 vide seizure panchanama Exh. 49 to 51. He
had sent clothes and other articles to the Chemical Analyzer. The CA
reports are at Exh. 82 to 87.
10. Point No. 1 : Whether the death is homicidal?
There is evidence of PW3 to PW5 that the deceased was
having profusely bleeding injuries on his thighs. They had taken him
to Rural Hospital, Bori where he was declared dead. Inquest
panchanama is at Exh. 47. PW6 Dr. Sultana has conducted post-
mortem. Her evidence and PM notes disclose that the deceased was
having two external injuries namely (i) Incised wound over right
thigh medially in middle 1/3, oblique 7 cm x 3 cm x 4 cm. and (ii)
Incised wound on lt. Leg upper 1/3, laterally just below knee jt.
Oblique 2 cm x 3 cm x 1 cm x 1cm. The PM report Exh. 73 proved by
PW6, shows the cause of death and the same is deposed by PW6 Dr.
Sultana that it was cardio respiratory failure due to haemorrhagic
shock due to injury to large blood vessel (rt. Femoral artery). Those
injuries were caused by sharp weapon. Those could be caused by axe
article 16 but could not be caused by axe court article 15. In the light
9 APEAL16.2002
of the evidence on record, it is not disputed and the evidence proves
it was a case of homicidal death.
11. The main evidence against the accused is in the form of
oral dying declarations. PW3 Shamrao is husband of sister of mother
of deceased Munjaji. He was also having agricultural field at Sonna
where Munjaji had purchased one field from the accused persons. He
deposed that, on 18.06.1998, he had gone from Kaudgaon to Sonna
for repair of agricultural equipments. He met Munja there. He had
accompanied Munjaji and found that the labourers of the accused
were doing sowing operations in the field of Munjaji. On their arrival,
those labourers left the spot. Thereafter, Munjaji was talking with all
the accused near the house of Rangubai and he was standing beside
them. The accused were asking Munjaji to return the land and
Munjaji was asking to refund the money. They agreed to settle the
dispute on the next day. Then PW3 went to a Carpenter and after
10-15 minutes, he heard commotion. He came there and found that
Munjaji was lying on the road and all the accused were seen by him
near Munjaji. On seeing him, they left the spot. He found that,
Munjaji was having injuries on his right and left legs caused by
means of axe. Munjaji asked him to call his uncle Nathrao PW4 and
he called Nathrao and PW5 Shrirangrao and one Balasaheb. Then
10 APEAL16.2002
PW3 brought bullock-cart of his brother-in-law and Munjaji was put
into it. He was taken in bullock-cart upto Asegaon. PW3 Shamrao
stated that, Munjaji was taking the names of all the accused and told
him that all of them had assaulted him and he should be immediately
taken to the hospital. Then at Asegaon, a Jeep could be arranged and
in the Jeep the deceased Munjaji was moaning. They went to Rural
Hospital Bori in Jeep where the doctors declared him brought dead.
His FIR is at Exh. 62.
12. PW4 Nathrao has supported PW3. He stated that on the
day of incident at 05:00 p.m. Shamrao came running to him and told
that Munjaji was attacked and they should go there. He found
Munjaji lying in a pull of blood with injuries to his thighs and private
parts. They were followed by Shrirang and Balasaheb. His further
evidence of taking Munjaji by bullock-cart and Jeep is as per evidence
of PW3. He also deposed that in the Bullock-cart, Munjaji told him
that Limbaji, Prakash, Pandit, Namdeo, Pramod and Purbha (the
accused) assaulted him with axe, stone and stick. He stated that,
Munja was talking with them till they reached village Asegaon.
13. PW5 Shrirang seems to be an independent witness. He
stated that, on the day of incident when he was going to his home, he
11 APEAL16.2002
heard hue and cry. Son of Nathrao told him that, Munjaii was to be
brought. Hence, he went from Jalalpur to Sonna. He saw Munjaji
lying in a pull of blood with injuries to his thighs. Munja started
weeping and told him that he should be carried to the doctor. Munja
told that he would die as his both the legs were cut off by axe by
accused no.2-Prakash and accused no. 1- Limbaji. He also stated
that, Munjaji was talking till they reached Asegaon.
14. Thus, this is a case of oral dying declarations before three
persons. It is not a case of three different oral dying declarations but
all the dying declarations are made simultaneously before PW3, PW4
and PW5. We find that, this oral dying declaration is not reliable and
trustworthy for the following reasons.
(i) As per medical evidence, deceased Munjaji had
sustained only two incised injuries both on the
thighs. He had not sustained any injury to the
genitals. It is incomprehensible that assault by six
persons would cause only two injuries.
(ii) Both the injuries found on the person of the Munjaji
were incised wounds. Therefore, the so-called dying
12 APEAL16.2002
declaration as disclosed in the FIR and in the
evidence of PW3 and PW4 that he was assaulted by
six persons by sticks and stone also and assault on
private parts is not supported by medical evidence.
(iii) The evidence of PW3, PW4 and PW5 is contradictory
to each other. According to PW3 and 4, all the six
accused assaulted deceased Munjaji. They have not
stated specifically as to who had inflicted injuries by
axe, who inflicted injuries by stone and who inflicted
injuries by stick. PW5 Shrirang however stated that
deceased-Punjaji told him that only accused nos. 1
and 2 inflicted injuries of axe on his person.
(iv) As per evidence of Medical Officer - PW6 - Dr.
Nusarat Sultana, the incised wounds found on the
person of Munjaji were possible by one of the two
axes article 16 and not possible by article no. 15. It is
not clear who has discovered axe article 16. The
panchas to the discovery of axe have turned hostile.
13 APEAL16.2002
The evidence of Investigating Officer PW7 PSI
Mankawar discloses that the accused no. 2 made a
statement. It was recorded as his version and
thereafter he led him and panchas to his house and
discovered one axe with long wooden handle. He
identified muddemal article 2 as the said axe. He
does not refer to articles no. 15 and 16. Similarly, his
evidence shows that, accused no. 1-Limbaji made a
statement and discovered one axe with short handle,
which is article 1. Now the axes shown to the Medical
Officer are articles 15 and 16 and she opined that the
injuries of the deceased Munjaji were not possible by
article no. 15 but were possible by article no. 16. PSI
Mankawar does not refer to articles no.15 and 16 but
articles no. 1 and 2. It is thus not clear which axe
was deadly weapon and which was discovered by
which accused. (Learned Sessions Judge should have
been careful to avoid such confusion).
(v) Besides, when Munja was taken to Rural Hospital,
Bori, he was declared brought dead. It is not clear
when he died, upto what time he was conscious and
14 APEAL16.2002
whether he was physically and mentally fit to make
oral declaration.
15. Besides, the evidence regarding discovery is not at all
convincing. The panch witnesses to the discovery have turned
hostile. PW7 PSI Mankawar has not deposed the statement made by
accused nos. 1 and 2 in verbatim. He ought to have disclosed which
spot was shown by the accused from where he was going to discover
the weapon of offence. He has not disclosed the spot. PW7 PSI
Mankawar has admitted that he did not seal the articles seized. He
has not deposed about keeping them in a safe custody till sending
them for chemical analysis. There is also evidence that when the
alleged discovery was made, the hands of the accused were tied with
rope and therefore the alleged statements made by them cannot be
said to be voluntary. In view of these lacunae, it is difficult to
connect the CA report disclosing the blood of the accused to the
muddemal weapons axes. Besides, these axes were not shown to
PW3 who had seen all the accused present on the spot and stated
that on his arrival they had left the spot.
16. In view of the material inconsistencies in the evidence of
PW3 to PW5 regarding the dying declarations, the evidence of oral
15 APEAL16.2002
dying declaration is not reliable and trustworthy. When the said
evidence cannot be relied, mere recovery of blood stained clothes or
blood stained axe, which are also not properly proved, will not be of
any help to the prosecution to prove the involvement of accused
nos.1 to 6.
17. It is disclosed that, accused nos. 3 to 6 were not armed
with any sharp weapon like axe. According to the alleged dying
declarations, they assaulted with stones and sticks. There are no
injuries of stone and sticks on the person of Munjaji and therefore it
is certain that PW3 and PW4 have tried to falsely implicate accused
nos. 3 to 6. In the light of these facts, the evidence of PW3 Shyamrao
and PW4-Nathrao as against accused nos. 1 and 2 also becomes
untrustworthy, incredible and unreliable.
18. Besides, it is noticed that the incident took place at about
5:00 p.m. The Police Station and Rural Hospital are at Bori, around
20 kms. away from village Sonna. Even considering the difficulty of
conveyance, looking to the nature of injuries, the injured could have
reached the hospital within one hour and when he was declared
dead, immediate and prompt lodging of FIR was expected from PW3
to PW5 but FIR is lodged at 09:45 p.m. i.e. almost around four hours
16 APEAL16.2002
after the incident. Time of around one and half hour journey and
inquiry in the hospital was justified but the further delay is not
explained. Looking to the enmity and contradictory evidence
regarding dying declaration, the delay is highly suspicious.
19. Mr. Nagargoje has also rightly argued that, the Jeep driver
and bullock-cart driver were material witnesses and they could have
been independent witnesses. Their evidence would have been more
reliable but they are not examined.
20. In the result, we find that, the view taken by ld. trial Judge
for acquittal of the accused is not only reasonable and probable but
the correct view and no interference is called for in the judgment of
acquittal. Hence the order.
ORDER
(i) Criminal Appeal is dismissed.
(ii) We appreciate the valuable assistance given by
Shri. P. N. Nagargoje, learned counsel appointed to
represent the respondents. His fee is quantified at
Rs.5,000/-.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
