Bombay High Court
The State Of Maharashtra vs Bhagwat Parasram Rodge & Anr on 3 October, 2017
Bench: T.V. Nalawade
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 589 of 2002
* The State of Maharashtra
Through Police Inspector,
Police Station Yusufwadgaon,
Taluka Kaij, District Beed. .. Appellant.
Versus
1) Bhagwat s/o Parasram Rodge,
Age 42 years,
Occupation: Service & Agriculture,
R/o Gotegaon, Taluka Kaij, District Beed.
2) Dilip s/o Dadarao Bachute,
Age 22 years,
Occupation: Agriculture & Labour,
R/o Gotegaon, Taluka Kaij,
District Beed. .. Respondents.
----
Shri. P.G. Borade, Additional Public Prosecutor, or
appellant.
Shri. G.V. Sukale, Advocate, for respondent Nos.1 and 2.
----
Coram: T.V. NALAWADE &
A. M. DHAVALE, JJ.
Date: 3 October 2017
JUDGMENT (Per T.V. Nalawade, J.):
1) The appeal is filed against the judgment and
order of Sessions Case No.52 of 1993 which was pending
in the Court of learned 2nd Additional Sessions Judge,
Ambajogai. The respondents are acquitted of the offences
punishable under sections 302, 201 read with 34 of the
Indian Penal Code. Accused No.1 Dadarao of the case died
during pendency of the case in trial Court and the case as
against him was disposed of as abated. Both the sides are
heard.
2) The facts, in brief, leading to the institution of
the appeal can be stated as follows :
Deceased Mustafa was elder brother of Shaikh Latif.
They were residing at Yusufwadgaon, Tahsil Kaij, District
Beed. The deceased was working as shepherd and he had
sheep and goats. Shaikh Ahmed Shaikh Papamiya,
resident of Yusufwadgaon is also relative of the deceased.
The deceased was aged about 20 years.
3) The deceased had left the residential place on
27-5-1989. He did not return to home. On 28-5-1989 at
about 13.00 hours the dead body of Mustafa was found in
the water of Kejadi river. On 28-5-1989 inquest
panchanama was prepared on the dead body and the dead
body was referred for post mortem examination. On the
same day between 16.00 hours and 17.15 hours the post
mortem was conducted and the doctor gave opinion that
death had taken place due to asphyxia and cardiac
respiratory arrest due to drowning. No surface wound was
found on the dead body and the symptoms which are
ordinarily noticed in case of "death due to drowning" were
noticed. The panchanama of the spot where dead body
was found was also prepared. On the bank of the river
situated near the place where dead body was found the
clothes of the deceased and the axe of the deceased were
found. The depth of the water at that place was 5.1/2 to
6.1/2 feet.
4) The dead body was buried as per the religious
rites and custom after conducting post mortem
examination on it. Brother of the deceased suspected foul-
play when he heard that there were witnesses like
Balasaheb Pandhavale, resident of Yusufwadgaon who had
seen the accused in the vicinity when the dead body which
was first lying away from the river. Due to this suspicion,
steps were taken and then the dead body was taken out
after following the proper procedure on 23-6-1989. The
dead body was then referred for post mortem examination
which was to be the second post mortem examination on
the dead body. The post mortem was conducted on 23-6-
1989. The doctor who conducted the post mortem
examination noticed that scalp tissue on left frontal, left
temporal and left parietal region was adherent to the
underlying bone and it was reddish black in colour. He
noticed that there was fracture on left temporal and
frontal region and this injury was ante mortem in nature.
He noticed that the skull was opened in the previous post
mortem examination at other side. He could not examine
the other internal organs including lungs as there was
putrefaction. The dead body was in highly decomposed
condition. This time the doctor gave opinion that the
aforesaid things were suggestive that death was due to
head injury. Viscera was preserved. No poison was
detected in viscera.
5) Somnath Jagtap (PW 10) who was working as
Circle Police Inspector at Ambajogai gave report on the
basis of post mortem report against Dadarao Bachute,
Bhagwat Rodge and Dilip Bachute. Crime came to be
registered for the offences punishable under sections 302,
201, 34 etc. of the Indian Penal Code.
6) Statements of witnesses who include Balasaheb
Pandhavale were recorded. Statements of some
neighbours of accused No.1 Dadarao came to be recorded
and after completion of investigation, charge sheet came
to be filed for aforesaid offences.
7) Accused Nos.2 and 3 pleaded not guilty when
plea was recorded. Prosecution examined in all 10
witnesses. The trial Court has held that the prosecution
has proved that it is a case of homicide. But the trial
Court has acquitted both the respondents by observing
that the prosecution has failed to connect these persons
with the cause of death.
8) The post mortem report dated 28-5-1989 is
admitted by the defence. It shows that it was conduced
between 16.00 and 17.15 hours on that date. Rigor mortis
was absent in upper extremity and it was present in lower
extremity. Decomposition had not yet started. No surface
wound was found on the dead body. On internal
examination the doctor found that both the lungs were
oedematus and on sections watery blood and frothy blood
came out. Right ventricle of the heart was full of blood
and left ventricle was empty. Semi digested food was
found in the stomach. The doctor who conducted the first
post mortem examination gave opinion that it was death
due to asphyxia and cardiac arrest due to drowning. Dr.
Jinturkar (PW 8) conducted the second post mortem
examination. Due to the circumstance like fracture of
temporal and frontal bones on left side and the colour of
the skull tissue at that side the doctor formed opinion that
they were ante mortem injuries and the death took place
due to the head injury. In the cross-examination he
admitted that such injury can be caused if a person
accidentally falls in river bed where there is stone. The
evidence of Dr. Jinturkar (PW 8) is only opinion evidence
and it was upto the trial Court Judge to accept either of
the two opinions available on the cause of death. Even if
it is presumed that the trial Court has correctly accepted
the opinion given by Dr. Jinturkar (PW 8) and there is
justification for the cause given by Dr. Jinturkar (PW 8),
the prosecution was required to establish that present
respondents had caused the aforesaid injury to the
deceased.
9) The main witness of the prosecution is
Balasaheb (PW 6). His evidence shows that on the
previous night of the incident he was in the company of
Mustafa along with Prakash and they stayed in the field of
one Shankarrao with their sheep and goats. He has
deposed that on the next morning he and Prakash left the
field but Mustafa remained there. He has deposed that the
tiffin for Mustafa was handed over to him by sister of
Mustafa and on that day he had met Mustafa after
collecting tiffin. He has deposed that as per request made
by Mustafa he kept tiffin with himself and he went
towards Kejadi river to wash his sheep and goats. He has
deposed that at the bank of the river he took meal but
Mustafa did not come to that place.
10) Balasaheb has deposed that he then went
towards the side where the sheep and goats were kept. He
has deposed that he could see the sheep and goats of
Mustafa but he could not see Mustafa. He has deposed
that he then noticed accused No.1 Dadarao and Bhagwat,
accused No.2. He noticed one boy in the company of
Dadarao. He has deposed that Dadarao gave threat to him
to finish him by stabbing and warned that he should not
disclose anything to anybody. He has deposed that in the
vicinity one person was lying and he was Mustafa. He has
deposed that he became frightened and he did not
disclose the incident to anybody. In the Court he
identified both accused Nos.2 and 3 as the persons who
were in the company of Dadarao.
11) The evidence of Balasaheb in the cross-
examination shows that police made inquiry with him
three times and his first statement was recorded after
three days from the date of finding the dead body. His
attention was drawn to his statement dated 30-5-1989 to
point out omissions with regard to aforesaid particulars
given against Dadarao and he could not give reason as to
why said statement was not recorded by police. Somnath
Jagtap (PW 10) took over investigation on 5-6-1989 and he
recorded statement of Balasaheb on 6-6-1989. His
evidence in the cross-examination shows that the
statement of Balasaheb was recorded by previous officer
on 30-5-1989. His evidence shows that he did not verify
the statement dated 30-5-1989 but he recorded fresh
statement on 6-6-1989. This circumstance cannot be
ignored as it is the case of the defence that initially every
body including Balasaheb believed that it was a case of
death due to drowning.
12) Prakash (PW 9) was in the company of
Balasaheb. He is declared hostile by prosecution. Even in
the cross-examination made by the learned A.P.P. nothing
could be brought on the record which could have
supported the prosecution. Relevant portion from his
statement dated 30-5-1989 was marked by the defence
but it appears that, that portion was not proved as
contradiction.
13) The evidence of other witnesses like persons
having fields in the vicinity of the field of Dadarao is not
helpful. These witnesses like Rajesaheb (PW 1) and
Kasturabai (PW 2) have deposed that some sheep and
goats had entered the field of Dadarao and as there was
nobody to take care of the sheep and goats and as they
were causing damage to the standing crop, they were
taken to cattle pond after driving them out of the field.
These witnesses are not cross-examined by the A.P.P. and
the defence also did not cross-examine the witnesses.
Thus, there is no evidence on the record of other
witnesses to show that on that date there was
confrontation between Dadarao and the deceased over
grazing of the sheep and goats in the field of Dadarao.
The evidence of the close relatives of the deceased is of
hear say nature.
14) The discussion made above shows that even if
the evidence is accepted as it is, the evidence of
Balasaheb (PW 6) was mainly against Dadarao, who is
dead. In view of these circumstances, this Court holds
that the trial Court has not committed any error in holding
that the prosecution has failed to prove that the present
respondents - accused caused aforesaid injury found on
the head of the deceased or they had joined hands with
Dadarao if Dadarao had caused the injury. There is no
circumstantial check to the evidence of Balasaheb as
nothing was found on the spot shown by Balasaheb. Thus,
interference is not possible in the decision given by the
trial Court. In the result, the appeal stands dismissed.
Sd/- Sd/-
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
rsl
