The State Of Mah vs Vasant Bhaurao Kendre
2017 Latest Caselaw 7646 Bom

                                       1                CRIAPL-331.08.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 331 OF 2008


 The State of Maharashtra
 through PSO, Police Station,                   ... Appellant/
 Ahmedpur                                         (Orig. Complainant)

          versus

 Vasant Bhaurao Kendre,                         ... Respondent/
 Age 37 years, r/o Ahmedpur                       (Orig. Accused No.1)

         ---
 Mr. S. K. Tambe, Additional Public Prosecutor for appellant
 Mr. Satej S. Jadhav, Advocate for respondent



                                 CORAM :    SUNIL P. DESHMUKH AND
                                            SANGITRAO S. PATIL, JJ.
                                   DATE :    28th September, 2017



 JUDGMENT (PER : SUNIL P. DESHMUKH, J.)

1. This is an appeal by the State - prosecution, preferred only

against accused No. 1 Vasant Bhaurao Kendre who is one out of six

accused persons who had been tried and acquitted by Additional

Sessions Judge, Latur, under judgment and order passed in

Sessions Case No. 30 of 2006 on 17-04-2007, of the offences with

which they were alleged of commission of offences punishable

under Section 302 read with section 34 and sections 147, 148, 149

of Indian Penal Code and section 25(1) of the Indian Arms Act

registered against them under crime no. 70 of 2006 with Police

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Station, Ahmedpur, imputing constitution of unlawful assembly,

possessing deadly weapon illegally and using the same for

common object of killing Venkat.

2. The prosecution case before the Sessions Court had been, on

15-05-2006 accused persons had formed unlawful assembly in

furtherance of their common intention to commit murder of Venkat

and had caused his death by shooting him with bullet from a rifle.

3. Jayashree (accused No. 3) and Shobha (accused No. 6) are

the daughters, while Balasaheb (accused No. 4 and Pappu @

Eknath (accused No. 5 are the sons of Pandhari (accused No. 6).

Vasant Bhanudas Kendre (accused No.1) is husband of Shobha

(accused No.2). The Deceased Venkat was the husband of Jayashri

(accused No. 3). All the accused are residents of Ahmedpur. House

of accused no. 1 is in the area known as "Hanuman Tekdi" in

Ahmedpur. The incident in question is stated to have taken place in

front of house of accused no.1.

4. The Deceased Venkat was serving in military and had been

posted in Jammu and Kashmir. Accused no. 1 - brother in law of

Venkat, is also ex-military man. Deceased Venkat and his mother

Premkala had been staying at Molvanwadi.

5. Venkat had got married with accused no. 3-Jayashree about

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two years before the date of incident. Marriage of Shankar,

deceased Venkat's younger brother, had been arranged on 16-05-

2006. Venkat, for said purpose had arrived at village Molvanwadi

a few days before.

6. It is the case of the prosecution that according to prevailing

customs in the community of accused, at the time of marriage of

family member of son-in-law, clothes are offered to the son-in-law

and his parents. On the fateful day, according to the witnesses

from Venkat's family, a phone-call at their residence at village

Molvanwadi had been received by Dilip to send his brother Venkat

to Ahmedpur for purchasing clothes and accordingly Venkat had

gone to Ahmedpur. Around 1.30 p.m. to 2.,00 p.m. accused no. 1

Vasant had given a telephone call, which had been picked up by

mother of Venkat, telling her that he had murdered Venkat shooting

him by a rifle with a bullet. Thereupon, immediately, family

members of Venkat had proceeded to Ahmedpur and they had

found corpse of Venkat in front of house of accused no. 1 at

Ahmedpur. On the very day, around 5.00 p.m. Shankar, another

brother of deceased Venkat, had lodged first information report

with Police Station, Ahmedpur which had been registered as crime

no. 70 of 2006. Accordingly, the matter had been investigated.

7. During the course of investigation, statements of the

witnesses came to be recorded, various panchanamas viz. inquest,

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spot, seizure were also effected and upon collection of sufficient

material, charge sheet was filed against the accused persons in the

court of Judicial Magistrate, First Class, Ahmedpur and the case

initially was registered as Regular Trial Case No. 127 of 2006,

however, the offence under section 302 of Indian Penal Code being

triable exclusively by Sessions Court, the case was committed to

the Court of Session, Latur, numbered as Session Case No. 30 of

2006.

8. Charges framed against accused were read over and

explained to them by Additional Session Judge, Latur, camp at

Ahmedpur. They pleaded not guilty to the charges and preferred to

proceed with the trial.

9. It appears, the witnesses who were immediately on the scene

after occurrence of the incident constituting mainly women folk

have been declared to be hostile, for, they had disowned certain

statements recorded before the police which, to quite some extent,

had been in respect of mens rea since the recorded police

statements show that the witnesses had stated before the police

during the investigation that Shobhabai (accused no. 2) wife of

Vasant (accused No.1) had been telling that from over 3 to 4 days

before the date of incident the deceased Venkat was visiting her

house while the male members were not in the house. There

5 CRIAPL-331.08.doc

appears to be a little discrepant version about appearance of

witnesses on the spot, whether had been immediately after they

had heard the sound of firing which is described as sound of fire

cracker or after hearing of noise of people who had gathered upon

sound of rifle shot. Majority of the witnesses are from neighbouring

residences.

10. While this is the evidence in respect of the statements of the

persons other than the members of the family of deceased Venkat,

evidence of his two brothers, namely, Shankar and Dilip, is at

variance in respect of the motive for Vasant-accused no.1.

Shankar has stated that relationship between deceased Venkat and

his wife Jayashree had been strained over a year whereas version

of Dilip is that Venkat had been suspecting illicit relationship

between Vasant and Jayashree (accused no. 1 and 3 respectively.)

11. The evidence on record does show that Venkat had been to

Ahmedpur on 15-05-2006 and had been shot at. There is no eye

witness or direct evidence in respect of shot being fired from the

rifle on Venkat though there does not appear to be any dispute over

that Venkat had suffered bullet shot on his chest and succumbed to

the shot. Evidence of Medical Officer - P.W. 8 and post mortem

report support the cause of death. There is also no dispute over

that bullet had been shot from a rifle and that Vasant - accused

no. 1 had a rifle. Deceased Venkat was also a military man.

6 CRIAPL-331.08.doc

12. Evidence, however, concurs on one aspect that is Venkat had

been to Ahmedpur with variance in the reasons for being there

because while the prosecution alleges that he had been invited at

Ahmedpur, disowned defence version is about he had been visiting

Ahmedpur while male persons in the family were away.

13. There is no evidence whatsoever that the persons who are

alleged of unlawful assembly had been in the house of accused no.

1 and 2 (Vasant and Shobha) and had at any point of time

assembled with a common object to kill Venkat nor had Venkat

been earlier on, was alleged of keeping a lecherous eye on accused

Vasant's wife Shobhabai (accused No. 2). Jayashree used to stay

with her parents, while Venkat used to be away from Molvanwadi.

There is no eye witness to the incident of firing. There is no

evidence about accused no. 1 and deceased Venkat were last seen

together.

14. Accused no. 6 Pandhari is also from Ahmedpur who has been

serving in M.S.R.T.C. Accused no. 1 has stated that he was away

from home since being employed and serving as security guard in

Maharashtra Warehouse Corporation as an employee of security

contractor, who and accused no. 2 as well had been away from the

house.

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15. Version of witness Shankar as appearing in his evidence is

also discrepant on the point of strained relationship between

deceased Venkat and Jayashree since the same had not been

referred to in the first information report. So is the case in respect

of Venkat having been to Ahmedpur on the fateful day along with

brother Dilip which had not been stated to the police and also can

be seen from the first information report.

16. Further, the clothes of the accused persons containing blood

stains which were sent to Chemical Analyzer did not conclusively

show that the blood stains can be said to match with blood group of

deceased Venkat as the report of the Chemical Analyzer in that

respect has been inconclusive.

17. In the face of absence of any convincing evidence in respect

of the motive for accused no. 1 Vasant, the findings reached by the

Trial Court on appreciation of the evidence as has been adduced, do

not appear to be in any way deficient and erroneous. Benefit of

doubt would go in favour of accused No. 1. In the cases of

acquittal, it has long been settled that upon evidence having been

appreciated by the Trial Court, if a possible view has been taken, it

would not be proper for Appellate Court to take a different view

since different view is possible.

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18. In the circumstances, it does not appear to be a case wherein

it is possible for us to reverse the decision of acquittal by Sessions

Court and convert the same into conviction of accused no. 1. The

prosecution has not been able to bring home the guilt of the

accused conclusively.

19. The appeal, as such, fails and stands dismissed.

 SANGITRAO S. PATIL                         SUNIL P. DESHMUKH,
      JUDGE                                      JUDGE




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