Bombay High Court
The State Of Maharashtra vs Kaba @ Vishnu Panditrao Dasalkar & ... on 11 September, 2017
Bench: T.V. Nalawade
1 Appeal 460 of 2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 460 of 2001
* The State of Maharashtra,
Through Police Station,
Sailu, District Parbhani. .. Appellant.
Versus
1) Kaba alias Vishnu s/o Panditrao
Dasalkar,
Age 22 years,
Occupation : Agriculture,
R/o Khupsa, Taluka Sailu.
2) Vaijanath s/o Taterao Dasalkar,
Age 24 years,
Occupation : Agriculture,
R/o Khupsa, Taluka Sailu.
District Parbhani. .. Respondents.
----
Shri. S.D. Ghayal, Additional Public Prosecutor, for the
appellant.
----
Coram: T.V. NALAWADE &
S.M. GAVHANE, JJ.
Date : 11 SEPTEMBER 2017
JUDGMENT (Per T.V. Nalawade, J.):
1) The appeal is filed to challenge the judgment
and order of Sessions Case No.54/1996 which was
pending in the Court of the 1st Ad-hoc Assistant Sessions
2 Appeal 460 of 2001
Judge, Parbhani. The trial Court has acquitted the
respondents of the offences punishable under sections
307, 341, 324, 34 of the Indian Penal Code. Heard learned
Additional Public Prosecutor for the State, appellant.
2) The incident in question took place on 8-10-
1995 at about 1.00 p.m. on approach road of village
Khupsa when the first informant, Vithal Khupsekar was on
his motor cycle with his son Ravi and his nephew Shriram.
When they had crossed distance of two furlongs from
village, accused Kaba (A-1) and other person (A-2)
intercepted this motor cycle and all of a sudden accused
No.1 Kaba gave blow of axe on right hand of the first
informant. The first informant fell with the motor cycle.
When he fell on the ground, Kaba gave another blow on
right leg. The other person, accused No.2, gave stick blow
on the head of the first informant. The two boys, who were
in the company of the first informant, started crying and
then Kaba gave blow of handle of the axe to Shriram and
these two persons ran away.
3 Appeal 460 of 2001
3) After some time one jeep came by that road
and the persons of the said jeep shifted the first informant
to Government Hospital Sailu. The F.I.R. was recorded in
the hospital in the presence of the Tahsildar Sailu as the
first informant had sustained bleeding injuries and on that
basis the crime came to be registered at CR No.123/1995
for the aforesaid offences. During the course of
investigation the statements of the aforesaid two boys
came to be recorded and the statement of one Vijay
Kalam, Sub Divisional Revenue Officer, also came to be
recorded. During the course of investigation accused No.1
Kaba gave statement under section 27 of the Evidence Act
and on the basis of the statement one axe came to be
recovered on 10-10-1995. Accused No.2 also gave
statement before police under section 27 of the Evidence
Act and on the basis of the statement a stick came to be
recovered from one field. The clothes of the accused and
the aforesaid articles and also the clothes of the first
informant having blood stains along with blood samples
were sent to CA office. After completion of the
investigation charge-sheet came to be filed against the
present respondents.
4 Appeal 460 of 2001
4) In the trial Court respondents have taken
defence of total denial. The prosecution has examined as
many as 7 witnesses including medical officer who issued
MLC. The trial Court has not believed the first informant
and the other so called eye witnesses and benefit of doubt
is given to the accused.
5) In the present matter, the spot panchanama
needs to be kept in mind while appreciating the evidence
given by all the prosecution witnesses. The panch witness
Ashok Dasalkar, who is examined has turned hostile and
with the permission of the Court he is cross-examined by
the learned APP. He has however, admitted his signature
appearing on the spot panchanama at Exhibit 18. In the
evidence Shivram Kadam (PW-7) PSI, who prepared spot
panchanama, this document is proved. The incident took
place at about 1.00 p.m., in broad day light. The motor
cycle was lying in the middle of the road and near the
front wheel there was a big ditch and the blood had
accumulated in that ditch. At some distance from this
ditch also there was blood. One small steel pot, pieces of
clothes and a packet containing chilly power were found
5 Appeal 460 of 2001
near the bushes, situated by the side of the road. On the
western side there was field of Panditrao Dasalkar and
the name of accused No.1 is Kaba Panditrao Dasalkar.
There is direct evidence of the first informant, one of the
aforesaid two boys and one more witness but at the time
of appreciation of that direct evidence, the MLC prepared
by Dr. Sanjay Rodage (PW 1) also needs to be kept in
mind. Evidence of this Doctor shows that on 8-10-1995
Police Head Constable of Police Station Sailu gave
requisition letter to him for examining the first informant
Vithal and the boy Shriram. He has given evidence that he
found as many as 7 injuries on the person of Vithal and
they are as under :
(i) Contused lacerated wound 3x1x1/2 inches on
frontal region of head.
(ii) Contused lacerated wound 2x1x1/2 inch on
forehead.
(iii) C.L.W. 4x2x1 inches on temporal region.
(iv) C.L.W. 4x2x1 inches on occipital region.
(v) C.L.W. 2x1x1/2 inch on left arm
(vi) Crush injury with fracture both bones on right
forearm.
(vii) Crush injury with fracture tibia of left leg.
6 Appeal 460 of 2001
6) The aforesaid injuries show that as many as 4
injuries which were C.L.Ws were found on head portion
and the doctor has given opinion that these injuries were
caused by sharp and hard object like axe. He has tried to
say that even other injuries which are C.L.Ws and injury
Nos.6 and 7 which were crush injuries involving fracture
of both bones of right forearm and fracture of tibia were
also caused by hard and sharp object like axe.
7) The doctor (PW-1) found one C.L.W. on right
knee of Shriram which is also said to be caused by hard
and sharp object and the doctor has given opinion that
this injury can also be caused by axe. This injury, however,
is described as simple injury. The age of the injury is given
as within two hours when, as per the record, these two
witnesses were examined at about 1.30 p.m. and 2.00 p.m.
on 8-10-1995. Even without referring to the medical
evidence it can be said that the opinion of the doctor with
regard to cause of injury Nos.6 and 7 in respect of Vithal
as hard and sharp object, by giving blow of axe, is not
acceptable. It can be said that the defence has not
competently cross examined the doctor on this point.
7 Appeal 460 of 2001
From the description of the injury itself it is not possible
to accept such opinion.
8) It only needs to be seen as to whether the
aforesaid medical record is consistent with the direct
evidence. Vithal (PW-2) has given evidence that accused
No.1 gave axe blow on his right hand and when he fell on
the ground, accused No.2 gave blow of stick on his head.
He has deposed that accused No.1 then gave blow of axe
on right hand while accused gave beating to him. He has
given evidence that accused No.2 gave blow of handle of
the axe to his nephew Shriram. Thus, he has deposed that
blow of stick was given on his head but blow of axe was
not given on his head. Thus, there is inconsistency in the
opinion given by the doctor and the direct evidence.
Further, in the F.I.R. also he had not contended that axe
was used and blows were given by using axe on his head.
This inconsistency is not at all explained by the
prosecution.
9) Ravi (PW 4) was not injured but he is examined.
The other boy, who according to the first informant, was
8 Appeal 460 of 2001
injured is not examined. Ravi has given evidence that in
the incident, Kaba gave blow of axe on the hand and leg of
the first informant and Kaba gave blow of handle of the
axe to Shriram. This evidence is not consistent with the
version of Vithal as he has deposed that it is accused No.2
who gave blow of handle of axe to Shriram. When accused
No.2 was not holding axe, it does not look probable that
he had taken the axe from accused No.1 and he had given
such blow. Thus, there is inconsistency in the evidence of
these two witnesses.
10) The prosecution has examined one Vijay Kalam,
who was working as Sub Divisional Officer at Sailu at the
relevant time. He has deposed that by chance he was
passing in his official jeep by that road at about 1.00 p.m.
He has deposed that the incident took place at the
distance of 4 kilometers from Sailu and he witnessed the
incident from a distance of 1500 feet. He has deposed
that two persons were attacking one person by axe and
stick and one boy was standing near the victim. He has
deposed that after seeing his jeep the two persons ran
away. He has deposed that he noticed that the person who
9 Appeal 460 of 2001
gave his name as Vithal had sustained bleeding injuries
and on inquiry he gave names of two assailants as Kaba
and Vaijnath. Here only it needs to be mentioned that the
first informant has not given the evidence that this
witness had arrived to the spot and he had disclosed the
incident including the names of the assailants to this
witness. Even in the F.I.R. he had not given the name of
Vaijnath. Further as per the version of the first informant,
with him there were two boys but this witness has
deposed that there was only one boy and that boy had also
sustained injury on the leg. It is already observed that the
second boy Shriram is not examined by the prosecution
and the boy Ravi who had not sustained injury is examined
by the prosecution. Ravi has tried to say that one jeep
having red beacon came to the spot and that officer
helped to shift the injured to the hospital. Firstly the jeep
of the Sub Divisional Officer does not have red beacon and
at the most it can bear Ambar beacon. In any case, the
statement of this witness was recorded on 10-10-1995 and
there is no mention of this person in the F.I.R. There are
many other inconsistencies in the evidence of this witness
which need not be discussed. From the cross-examination
10 Appeal 460 of 2001
it can be said that he was well acquainted with the first
informant and that can be seen in the admissions that he
knew that the first informant had enmity with the two
persons who allegedly assaulted him. This witness has
given evidence that he had informed the police of Sailu
Police Station about the incident but there is no record of
such kind with the prosecution. The discussion of the
evidence of the so called three eye witnesses shows that
their versions are not consistent with each other. In the
F.I.R. no motive was mentioned by the first informant and
that was brought on record only during cross-examination.
11) The prosecution examined one Ashok Dasalkar
(PW-5) to prove the spot panchanama and the
panchanamas of recovery of weapons and clothes at the
instance of the accused persons and also the statements
given by them under section 27 of the Evidence Act which
led to the recovery of the weapons. This witness has
turned hostile. Shivram (PW-7), Investigating Officer has
given evidence on these documents and they are
exhibited. It can be said that blood was found on the
weapons and also on the clothes but the circumstances
11 Appeal 460 of 2001
have created a serious doubt about the entire case of the
prosecution and a clear probability is created of
concoction. There are two possibilities creating doubt
from the aforesaid circumstances like some other persons
had assaulted who were not known to the first informant
or he had sustained injuries in accident. There is more
possibility of sustaining the injuries in accident in view of
nature of injuries already mentioned by this Court.
12) The evidence of the investigating officer and
the cross-examination of the aforesaid witnesses show
that when the material was collected many things were
concealed. There was previous enmity between the first
informant and accused No.1. Both sides had filed cases
against each other in the past. Many villagers had enmity
against the injured Vithal. The aforesaid circumstances
are also there. Even when many injuries were found on
the head, in the report of the first informant recorded in
the presence of the Executive Magistrate, Tahsildar, the
particulars of the blows given by anybody on the head
were not mentioned. There is a possibility that the injured
was not fit to give the statement when the first
12 Appeal 460 of 2001
information was shown to be recorded. All these
circumstances have created possibility of concoction. The
trial Court has also held that there is possibility of
concoction. The investigation was not fairly made and the
witnesses who have given direct evidence also cannot be
believed. This Court holds that the trial Court has not
committed any error in giving benefit of doubt to the
respondents. There is no possibility of interference in the
decision given by the trial Court. In the result, the appeal
stands dismissed.
Sd/- Sd/-
(S.M. GAVHANE, J.) ( T.V. NALAWADE, J.)
rsl
