Bombay High Court
State Of Mah. Thr. Pso Ps Pulgaon vs Madhukar Nilkanth Taksande And 3 ... on 6 January, 2018
Bench: B.P. Dharmadhikari
Cr.Apeal.515.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO.515/2003
&
CRIMINAL REVISION APPLICATION NO.139/2003
CRIMINAL APPEAL NO.515/2003
* State of Maharashtra
Through Police Station Officer
Police Station, Pulgaon. .. ..APPELLANT
versus
1) Madhukar s/o Nilkanth Taksande
Aged about 45 years
2) Nilesh s./op Madhukar Taksande
Aged about 20 years
3) Shailesh s/o Madhukar Taksande
Aged about 25 years
4) Sau.Chandralekha w/o Madhukar Taksande
Aged about 20 years
All R/o Laxminarayanpur
Tah.Deoli, Dist.Wardha
Police Station Pulgaon. .. RESPONDENTS
CRIMINAL REVISION APPLICATION NO.139/2003
* Ramesh s/o Mahadeorao Mankar
Aged about 32 years,
R/o Laxminarayanpur
Post.Pulgaon Tq.Deoli, Dist. Wardha... APPLICANT
::: Uploaded on - 11/01/2018 ::: Downloaded on - 12/01/2018 01:22:15 :::
Cr.Apeal.515.03
2
versus
1) The State of Maharashtra
Through Police Station Officer
Police Station, Pulgaon.
Dist. Wardha.
2) Madhukar s/o Nilkanth Taksande
3) Nilesh s./op Madhuakr Taksande
4) Shailesh s/o Madhukar Taksande
5) Sau.Chandralekha w/o Madhukar Taksande
All R/o Laxminarayanpur
Po.Pulgaon, Tah.Deoli, Dist.Wardha ..RESPONDENTS
...............................................................................................................................................
Mr. M.J. Khan, APP for the appellant/State
Mr. R.M. Patwardhan, Adv.for respondents
Mr R.P.Joshi, Adv. for applicant in Revision
................................................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 6th January, 2018
ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Criminal Revision Application No.139/2003 came to be filed by
complainant-Ramesh challenging acquittal of accused persons by first Ad-hoc
Additional Sessions Judge in Sessions Trial No.88/1999 vide judgment dated 22.5.2003
for offences punishable under sections 302, 324, 114, 201 read with Section 34 of the
Indian Penal Code. The said acquittal has been questioned by State Government in
Criminal Appeal No. 515/2003.
Cr.Apeal.515.03
2. Accordingly, we have heard APP Khan for appellant/ State Government
and Adv. Patwardhan for respondent-accused.
3. Learned APP submits that while writing judgment of acquittal, the trial
Court has adopted a wrong approach. It has accepted the plea of self-defence which
was never specifically raised during cross-examination of any of the witnesses or then
while statements u/s 313 Cr.P.C. were recorded. As there is wrong approach and self-
defence has not been established, the submission that there are injuries on accused
persons or then that those injuries are not explained by prosecution, is not material. He
points out that there are injured witnesses and, in the shape of PW7- Vinod, there is an
independent and impartial witness. Their evidence conclusively establishes the fact that
accused persons were aggressors and they initially assaulted deceased Suresh @
Suryabhan Mankar in his courtyard and thereafter dragged him to their (accused
persons) courtyard. The brutal attack was then committed. He has taken us through
spot panchnama and urged that spot panchnama has been accepted by trial Court. He
also stated that shortly after the attack, on next day, police have taken search of
house of accused persons and weapons used in murder i.e. bamboo stick and iron
pipe stained with blood were seized from the house of accused persons. He submits
that in this situation, some inconsistent statements here and there could not have
weighed with trial Court and judgment of acquittal is unsustainable.
Cr.Apeal.515.03
4. Adv. Patwardhan, on the other hand, submits that entire story of
prosecution is unbelievable. According to him, the so called impartial witness-Vinod has
been inserted only because he was obliging complainant. The other neighbours who
were natural witnesses and have witnessed the incident have been deliberately not
examined. He further submits that injuries sustained by accused persons are not in
dispute and the so called injured witnesses or eye witnesses have not seen those
injuries and have not stated anything about it. He further state that if story as narrated
by prosecution witnesses is accepted, the finding of bloodstains in courtyard of
accused persons as also in courtyard of complainant is not explained. He therefore
states that entire genesis of the crime has not been established and trial Court has,
therefore, correctly appreciated the evidence. He submits that in any case in this
situation, the benefit of doubt needs to be given to respondents.
5. With the assistance of respective counsel, we have perused the records.
6. Complainant-Ramesh has pointed out that on date of incident i.e.
9.3.1999 at about 8.00 p.m. there was discussion going on between deceased
Suresh @Suryabhan, father of Ramesh, namely, Gulab and other relatives about
purchases to be effected for marriage of Ramesh. At that time, accused Madhukar
came in front of house of complainant and gave a call from outside asking family
members to come out. Accordingly, deceased and others went out and then Madhukar
threatened them. Madhukar asked his wife Chandralekh to bring weapons and
Cr.Apeal.515.03
accordingly accused no.4. Chandralekha brought a sickle and rod from her house.
Accused nos. 2 and 3, who are sons of Madhukar, also came. Madhukar along with
his sons committed assault and Chandralkeha was instigating him. The deceased was
then dragged by accused persons to their courtyard where attack continued. Not only
deceased, but other famaily members were also attacked in that courtyard.
7. The trial Court has in its judgment appreciated evidence of all eye
witnesses, noticed inconsistencies and found it difficult to believe them. It is to be noted
that except Vinod, other persons are the injured or interested eye witnesses. In this
situation, their testimony needed cautious consideration and accordingly trial Court has
evaluated the same. Not only this, independently it has also looked into the evidence
of PW 7-Vinod.
8. Learned APP has relied upon the evidence of PW7-Vinod and according
to him, he is an independent, impartial person who has witnessed the incident. The trial
Court has commented upon its evidence and found it difficult to believe that a person
residing about 700 to 800 feet away from the house and after hearing hue and cry
came there. However he has stated that he witnessed the incident from beginning. His
evidence shows that he did not see that accused persons had any injuries on them. He
has also stated names of other persons who were present at the time of incident and
witnessed the attack. His narration shows that accused persons initially quarelled with
PW 6 Gulab Mankar and Gulab was trying to pacify them. Accused no.4
Cr.Apeal.515.03
-Chandralekha then pulled lungi of Suresh @ Suryabhan and accused persons
dragged Suresh in their courtyard and assaulted him. He has also described attack
with weapons in courtyard of accused persons. This evidence, therefore, does not
explain how there were blood-stains in the courtyard of complainant. The trial Court,
therefore, has found that these persons cannot be believed and discarded their
evidence. We do not see anything wrong with this evaluation.
9. PW6-Gulab is brother of deceased Suresh @ Suryabhan. His evidence
shows that at about 8.00 p.m. In backyard of their house they were discussing about
purchase and at that time Madhukar reached near door of their house and shouted
"nikal jao sale ghar ke bahar". Thereafter they all came out in front courtyard. He
asked Madhukar and Madhukar then told " ab tumko Khatamai karna hai". Then he
gave call to his sons and wife and accordingly they came out. After they came out
Madhukar asked his wife Chandralekha to bring weapons from his house. Chandrakala
then brought an axe and sickle. Accused Nilesh brought a wooden stick with him.
She had given the axe to Madhukar and sickle was given to accused Shailesh and
then he has pointed out the attack.
10. In cross-examination, he has stated that he did not in his statement to
police, point out blow given by weapon rod and axe upon hand of his father by
Madhukar. He also stated that entire incident did take place in courtyard of accused
Madhukar. He stated that he was not aware whether any other person witnessed that
Cr.Apeal.515.03
incident. He denied that accused persons sustained injuries in the quarell. He accepted
his brother Suryabhan was lying in courtyard of accused persons and injured
witnessed were also lying in the courtyard of accused persons.
11. His chief therefore does not explain how they went from their courtyard
to courtyard of accused persons. His evidence therefore does not explain as to how in
spot panchnama bloodstains were found in courtyard of complainant. The trial
Court,therefore, has also found it difficult to disbelieve this witness.
12. The accused persons have asked questions to Vinod about weapons
with the family members of deceased. He has stated that he did not see any such
weapons with family members of deceased. He has also denied any assault by such
family member of deceased on accused persons. He has also denied bleeding injuries
on accused persons. Similarly suggestions are also given to Gulab and he has denied
the same.
13. In this situation, we cannot accept contention that plea of self defence
was not raised by accused persons. On the contrary, in cross-examination of Gulab,
he was asked that after heavy consumption of liquor he was abusing accused persons
and he has denied it. He has further denied that after taking weapons like wooden
stick, iron pipe and sickle they entered the house of accused persons and beat them.
He denied that any scuffle did take place and in it, the deceased and his family
Cr.Apeal.515.03
members sustained any injuries. He has further stated that for very same incident and
attack, the prosecution u/s 326 r/ws. 34 of IPC is pending against them in the Court.
14. Though accused persons have tried to demonstrate that they reached
Police Station first and their report is earlier in point of time, in present facts, we do not
find it decisive.
15. Seizure of so called weapons of attack i.e. bamboo stick and iron
pipe/rod from house of accused persons vide seizure memo Exh. 68 does not advance
the case of prosecution in any way. No doubt, while seizing these articles, the seizure
memo records that same were bloodstained but then C.A. Report at Exh.100 shows
that no blood is detected on these articles.
16. In this situation, we find substance in contention of Adv.Patwardhan that
genesis of crime itself could not be established by prosecution.
17. Hence, taking overall view of the matter, we find no case made out
warranting any intervention in this appeal against acquittal. Appeal is dismissed.
Consequently, the Revision is also dismissed. No costs.
JUDGE JUDGE
Cr.Apeal.515.03
sahare
