Bombay High Court
Smt. Geetabai Dada Vaidhya vs State Of Mah. Thr. P.S.O. Deoli, ... on 22 September, 2017
Bench: V.A. Naik
CRAPEAL339.09-Judgment 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 339 OF 2009
APPELLANT :- Smt.Geetabai Dada Vaidhya, Aged about 50
years, Occ-Agriculturist, R/o Deoli, Tahsil
Deoli, District Wardha.
...VERSUS...
RESPONDENTS :- 1) The State of Maharashtra, through Police
Station Officer, Deoli, District Wardha.
2) Sanjay S/o Champatrao Jamankar, Aged
about 28 years,
3) Vijay S/o Champatrao Jamankar, Aged
about 26 years,
2 & 3 R/o Ward No.50, Deoli, Tahsil-Deoli,
District-Wardha.
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Mr. A.C.Dharmadhikari, counsel for the appellant.
Mr.K. R. Lule, Addl.Public Prosecutor for the respondent No.1.
Mr. R.M.Daruwala, counsel for the respondent Nos.2 and 3.
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CORAM : SMT. VASANTI A NAIK &
M. G. GIRATKAR
, JJ.
DATED : 22.09.2017
O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)
By this criminal appeal, the appellant-complainant has
challenged the judgment of the Sessions Judge, Wardha in Sessions
Trial No.26 of 2008, dated 29/12/2008, acquitting accused Sanjay
CRAPEAL339.09-Judgment 2/12
Jamankar and Vijay Jamankar of the offence punishable under section
302 read with section 34 of the Penal Code.
2. The appellant is the original complainant and the mother
of deceased Anil Vaidya, who died due to the head injury sustained by
him after he was admitted to Sawangi Meghe Hospital, Wardha on
04/01/2007. The incident allegedly occurred on 03/11/2007.
Appellant Geetabai Vaidya had lodged an oral report on 04/11/2007
alleging therein that on 03/11/2007 at about 7.30 p.m. her son Anil
had gone to the pan shop to eat kharra and while proceeding towards
the house of Pravin Nagrale, accused No.1 Sanjay and accused No.2
Vijay obstructed him and started quarreling. While the accused and
deceased Anil were quarreling, another son of appellant Geetabai, by
name Sunil informed her about the quarrel and hence she rushed to the
spot of incident. It is the prosecution case that when Geetabai came to
the spot, she found that deceased Anil was assaulted on the head by
certain article/weapon and thereby he sustained bleeding injury. By
arranging an auto rickshaw, Anil was admitted to Sawangi Meghe
Hospital, but he expired at the hospital on 04/11/2007. After the
receipt of the oral report, the investigation was conducted and on the
conclusion of the investigation, the charge-sheet was filed against
Sanjay Jamankar and Vijay Jamankar. Since the offence punishable
under section 302 read with section 34 of the Penal Code is exclusively
triable by the court of sessions, the learned Chief Judicial Magistrate,
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Wardha committed the case to the sessions court. The charge against
the accused was framed and the defence of the accused was of total
denial and false implication due to previous enmity. According to the
accused, the deceased had received injuries, as he accidentally fell from
his motorcycle.
3. The prosecution examined as many as 12 witnesses and
closed the evidence on their side. The accused examined Shankar
Patankar in defence to prove that Anil Vaidya (deceased) had suffered
injuries and had expired after falling from the motorcycle, on the side of
the road. On an appreciation of the evidence on record, the trial court
held that the prosecution had failed to prove that on 03/11/2007 in
furtherance of their common intention the accused had caused the
homicidal death of Anil Vaidya. After rendering the aforesaid finding,
the trial court acquitted the accused of the offence punishable under
section 302 read with section 34 of the Penal Code. Being aggrieved by
the judgment of acquittal, the original complainant-appellant has
challenged the judgment in this appeal.
4. Shri A.C.Dharmadhikari, the learned counsel for the
appellant, submitted that the trial court has erroneously disbelieved the
evidence of complainant-Geetabai (P.W.No.6) and Sunil Vaidya
(P.W.No.7), who were the eye witnesses to the crime. It is submitted
that there is ample evidence on record, specially the oral evidence
CRAPEAL339.09-Judgment 4/12
tendered by the eye witnesses to show that there were altercations
between the accused and deceased Anil and deceased Anil was
murdered by accused Sanjay Jamankar and Vijay Jamankar by means of
an axe and stick. It is submitted that the injuries on the dead body of
deceased Anil could have been caused by the axe and the stick, as could
be seen from the post-mortem report but the trial court erroneously
relied on the evidence of Shankar Patankar-D.W.No.1 and Dr.Biraj
Mahulkar in his cross-examination, to hold that the injuries were
possible due to the fall from the motorcycle. It is submitted that merely
because there were prior enmity between complainant Geetabai and her
sons Sunil and Anil on one hand and accused Sanjay and Vijay
Jamankar on the other and Geetabai and her sons were convicted as
they had stabbed Sanjay Jamnkar by means of gupti and knife and the
appeal filed by them against the order of their conviction was dismissed,
the accused could not have been acquitted in this case. It is submitted
that the trial court has not considered the evidence in the right
perspective while acquitting the accused.
5. Shri Daruwala, the learned counsel for the accused Sanjay
and Vijay Jamankar, has supported the judgment of the trial court. It is
submitted that there were material omissions in the evidence of
complainant Geetabai and her son Sunil and therefore the trial court
rightly disbelieved that they were eye witnesses to the crime as they had
CRAPEAL339.09-Judgment 5/12
an axe to grind against the accused since they were previously convicted
for stabbing accused Sanjay Jamankar by means of gupti and knife. It is
submitted that though it is deposed by the witnesses that several
villagers were present on the spot, the prosecution has not examined
any independent witness. It is submitted that the trial court has rightly
believed the case of the accused that the deceased may have sustained
the injury after falling from the bike. It is submitted that the evidence
of D.W. No.1 Shankar Patankar and Dr. Biraj Mahulkar would prove
that deceased Anil had fallen from the bike and he had sustained the
injuries as a result of the accident. It is submitted that the omissions are
not only proved by the admissions in the cross-examination of
P.W.No.6-Geetabai and P.W.No.7-Sunil but they are also proved by the
admission of Devrao (P.W.No.11), the investigation officer, who has
admitted that Geetabai did not mention in her statement that Sanjay
was holding an axe and Vijay was holding a stick. It is submitted that
since Sunil had ran from the spot, he could not have witnessed the
crime and since Geetabai could not have been present on the spot at the
time of the commission of the crime, their presence was rightly
doubted. It is submitted that since complainant Geetabai and her sons
Anil (deceased) and Sunil were convicted for the charge that they had
stabbed accused Sanjay by means of gupti and knife, they had an axe to
grind against the accused and hence they had falsely implicated them.
CRAPEAL339.09-Judgment 6/12
6. Shri Lule, the learned Additional Public Prosecutor, has
supported the judgment of the trial court. It is submitted that the trial
court has rightly appreciated the evidence on record to acquit the
accused. It is fairly admitted that as per the chemical analyser's report,
no bloodstains were found on the axe and the stick. The learned
Additional Public Prosecutor submitted that an appropriate order may
be passed in the circumstances of the case.
7. While dealing with this appeal, it would be necessary to
remind ourselves that we are dealing with the judgment of acquittal and
it would be necessary to bear in mind the well settled principle of law
that where two views are possible, the judgment of acquittal cannot be
interfered with. There is presumption of innocence in favour of the
accused and the presumption is further strengthened by the acquittal of
the accused by the trial court. The findings of facts recorded by the trial
court could be reversed only on very substantial or compelling reasons
and they cannot be reversed merely because another view is possible.
The prosecution has based its case on direct evidence, i.e. the evidence
of two eye witnesses namely P. W. No.6-Geetabai and P. W. No.7-Sunil
Vaidya. P. W. No.6-Geetabai had deposed that her son Anil (deceased)
went on the motorcycle to pay some amount to Pravin Nagrale and after
he purchased kharra from the pan shop, he went to bring the
motorcycle to the house of Ramesh Patankar. Geetabai deposed that at
CRAPEAL339.09-Judgment 7/12
that time both the accused, i.e. Sanjay and Vijay obstructed him. The
witness deposed that Sanjay was holding an axe and Vijay was holding
a bamboo stick. She further deposed that Sunil (P. W. No.7) came to
the house and informed her that the accused were quarrelling with Anil.
The witness has testified that Vijay assaulted on the head of Anil by
bamboo stick and Sanjay assaulted Anil on his head by an axe. She has
deposed that thereafter the accused rushed towards her other son Sunil
but Sunil ran away. In her cross-examination Geetabai admitted that
there were more than 40 prohibition cases pending against her. She
has admitted that in the year 1995 an offence was registered against
her and both her sons, Anil and Sunil on the charge that they had
stabbed Sanjay Jamankar (accused in this case) by gupti and knife and
in that case she and her sons were convicted and the appeal against the
judgment of the trial court was dismissed. Geetabai further admitted in
her cross-examination that she had not stated before the police that she
was standing near her son at the time of assault. She deposed in her
cross-examination that in her statement she had stated that Sanjay was
holding an axe and Vijay was holding a bamboo stick and she is not
aware as to why that statement does not find place in her statement
recorded by the police. She deposed in her cross-examination that she
was not aware as to why the statement made by her that Sanjay
assaulted the deceased with an axe and Vijay assaulted him with a stick
does not find place in her statement. The said material omissions were
CRAPEAL339.09-Judgment 8/12
proved by the cross-examination of Geetabai as also the cross-
examination of the investigating officer.
8. Sunil was examined as P.W.No.7. Sunil deposed that on
23/07/2007 he was standing along with his brother Anil in front of the
house of Ramesh Patankar and when the accused came there, there was
an altercation between the accused and his brother Anil. Sunil deposed
that when he came to the spot after informing his mother about the
quarrel between the accused and the deceased, the accused rushed
towards him. Sunil deposed that Sanjay was holding an axe at the
relevant time and Vijay was holding a bamboo stick. It is deposed by
Sunil that he ran away from the spot apprehending danger to his life
and after some time he noticed that his brother Anil was lying in a pool
of blood in front of the house of Patankar. In his cross-examination,
Sunil admitted that he had not stated to the police that at the time of
the altercation between the accused and the deceased, he was also
standing near the house of Patankar. He stated in his cross-examination
that he cannot assign any reason as to why there is no mention in his
statement recorded by the police that Sanjay was holding an axe and
Vijay was holding a bamboo stick as he had made that statement to the
police. The omission in respect of the weapons held by the accused at
the time of alleged incident was proved by the admissions of Sunil in his
cross-examination.
CRAPEAL339.09-Judgment 9/12
9. The prosecution had examined Dr.Biraj Mahulkar,
P.W.No.10, who admitted in his cross-examination that the injuries on
the person of Anil were possible by a fall from the bike in an accident.
P.W.No.11, who was attached to Police Station Deoli as a head
constable and who had registered the report lodged by P.W.No.6-
Geetabai, had admitted in his cross-examination that Geetabai had not
stated that Sanjay was holding an axe and Vijay was holding a bamboo
stick and they had assaulted her son Anil by the said weapons.
10. The accused examined Shankar Patankar as the defence
witness. Shankar had deposed that about 7.00 p.m. when he was
taking tea in his house, he heard some noise and when he went out, he
found that the motorcycle had fallen by the side of the road and Anil
(deceased) was lying beneath the bike. The witness deposed that he
had informed the said fact to the mother of Anil viz. Geetabai and he
had brought her on the spot.
11. On an appreciation of the evidence on record, we find that
the trial court has rightly held that the prosecution has failed to prove
that the accused Sanjay and Vijay had committed the murder of Anil
and they were liable to be punished for the offence punishable under
section 302 of th Penal Code. The trial court rightly recorded a finding
on the basis of the evidence of P.W.No.6-Geetabai and P.W.No.7-Sunil
CRAPEAL339.09-Judgment 10/12
that they were not the eye witnesses to the alleged crime. The trial
court held that when the alleged incident occurred, Geetabai was not
present at the spot and so was Sunil. The trial court doubted the
veracity of the evidence of Geetabai and Sunil in view of the proved
omission that accused Sanjay was holding an axe and accused Vijay was
holding a stick and that they assaulted Anil by the axe and the stick.
The trial court rightly held that the aforesaid material omission washed
out the evidence of P.W.No.6-Geetabai as an eye witness to the
incident. Though Sunil had also deposed that he had seen Sanjay hold
an axe in his hand and Vijay hold a stick, he had admitted in his cross-
examination that he is not aware as to why the said fact is not
mentioned in his statement, that was recorded by the police. From the
deposition of Sunil, he cannot be considered to be an eye witness
because he has deposed that when he saw both the accused coming
towards him with the axe and the bamboo stick, he ran away from the
spot apprehending danger to his life and after some time he found that
his brother-Anil was lying in front of the house of Patankar. The trial
court rightly held that the evidence of P.W.Nos.6 and 7 viz. Geetabai
and Sunil could not have been believed in view of the material
omissions in regard to the holding of the axe by accused Sanjay and the
bamboo stick by accused Vijay and the assault by them with the said
weapons on deceased Anil. In our view, the trial court rightly
disbelieved the evidence of Geetabai and Sunil as they had an axe to
CRAPEAL339.09-Judgment 11/12
grind against accused Sanjay and Vijay. In the year 1995, an offence
was registered against Geetabai and her sons Anil and Sunil on the
charge that they had stabbed accused Sanjay Jamankar by means of
gupti and knife and in that trial they were convicted and their appeal
was also dismissed. The trial court also considered that as many as 40
prohibition cases were registered against Geetabai. We do not find any
error in the appreciation of the evidence of Geetabai and Sunil by the
trial court, as also the finding recorded by the trial court that the
evidence of Geetabai and Sunil was not worthy of credit. The trial court
considered that the panch witnesses P.W. No.3 Laxman Dukre and P. W.
No.4 Rajendra Navthal had flatly denied about the seizure of the
bloodstained clothes of the accused. Further, the chemical analyser's
report at exhibit-27 also did not disclose the presence of bloodstains on
the seized clothes of accused Sanjay and Vijay. There were no
bloodstains found on the axe or the bamboo stick. In the circumstances
of the case, the trial court rightly held that the prosecution had utterly
failed to prove the guilt of the accused beyond reasonable doubt. While
holding so, some weightage was also given by the trial court to the
evidence of D.W.No.1 Shankar Patankar, who had deposed that when
he came out of the house on hearing some noise, he had seen Anil lying
beneath the motorcycle that had fallen by the side of the road. The trial
court had considered the admission of Dr. Biraj Mahulkar in his cross-
examination that the injuries on the person of the deceased could have
CRAPEAL339.09-Judgment 12/12
been possible by a fall from the bike in an accident. Since the view
expressed by the trial court is a possible view, there is no scope for
interference with the judgment of the trial court in the appeal against
acquittal.
In the result, the criminal appeal filed by the complainant
fails and is dismissed with no order as to costs.
JUDGE JUDGE
KHUNTE
