Bombay High Court
State Of Mah.Thr.Pso Chandrapur vs Natthu Raoji Bhajbhuje And 4 ... on 10 January, 2018
Bench: Ravi K. Deshpande
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 540 OF 2005
State of Maharashtra through,
The Police Station Officer,
Police Station, Bhisi,
Distt. Chandrapur. ... Appellant
VERSUS
(1) Natthu s/o Raoji Bhajbhuje
Aged about 55 years,
(2) Ramesh S/o Natthu Bhajbhuje
R/o Jambhulghat, Tq. Chimur,
Distt. Chandrapur.
(3) Suresh S/o Natthu Bhajbhuje,
Aged about 26 years, Agriculturist,
R/o Jambhulghat, Tq. Chimur,
Distt. Chandrapur.
(4) Subhash S/o Natthu Bhajbhuje,
Aged about 24 years, Tq. Chimur,
Distt. Chandrapur.
(5) Anandrao S/o Natthu Bhajbhuje,
Aged about 20 years, Tq. Chimur,
Distt. Chandrapur. ... Respondents
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Shri I. J. Damle, Additional Public Prosecutor for appellant
Shri S. G. Joshi, Advocate h/f Shri S. S. Ghate, Advocate for respondents
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date : 10/1/2018.
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Judgment (Per : M.G. Giratkar, J.)
State/prosecution has filed the present appeal challenging
the judgment of acquittal in Sessions Case No. 2/2001 passed by learned
Ad-hoc Additional Sessions Judge, Chandrapur.
2. The case of the prosecution/appellant against the
respondents-accused in short is as under.
(i) On 20-9-2000, complainant Kanhuji Devhare went to his field at
about 5.00 p.m. Accused Anandrao was grazing his bull on the
boundary of his field. Complainant objected to his act. Accused
Anandrao started quarrel with complainant. He kept mum and returned
to home. At about 7.00 p.m. he went to Ganesh Pendal. Accused
Natthu was present in the Ganesh Pendal. He complained him about
the act of his son Anandrao. All the accused rushed towards him.
One Soma Dadmal intervened. All accused went to their home. He also
went to his house.
(ii) At about 8 to 9 p.m., complainant again went to Ganesh Pendal
for arti (prayer). At that time, his son Shankar came along with
Sarpanch.
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(iii) All accused persons came to Ganesh Pendal having sticks
and axe in their hands. P.W. 1 Shankar, son of complainant enquired
from Natthu about the incident in the field. At that time, sons of Natthu
rushed on their person and started quarrel. Accused Subhash gave blow
of axe on the head of Shankar. Shankar fell down on the ground.
Brother of complainant, namely, Muka intervened in the quarrel.
Accused Ramesh gave blow of axe on his head and shoulder. Muka fell
down on the ground. Accused Subhash, Ramesh and Suresh then
started beating Muka by sticks. Complainant rushed towards Muka.
Accused Ramesh and Suresh beat him by stick on his back. When he
tried to snatch stick, all the sons of Natthu lifted him and tried to take
him away. Somehow, he rescued.
(iv) After the incident, complainant along with his son Shankar,
Rambhau Nagose and Sarpanch went to hospital. Muka was also taken
to the hospital. He was declared dead. Thereafter he lodged a report,
Exhibit 45 in Police Station, Bhisi. Crime was registered for the offences
punishable under Sections 147, 148, 149, 302, 307, 323 of the Indian
Penal Code against the respondents. API Dhawde investigated the crime
and after complete investigation filed the charge-sheet before the
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Judicial Magistrate First Class, Chimur. Same was committed to the
Court of Sessions at Chandrapur.
(v) Charge was framed at Exhibit 27. Same was readover and
explained to the accused/respondents. All the accused pleaded not
guilty and claimed to be tried. Defence appears to be of total denial.
(vi) The prosecution has examined following witnesses.
(1) P.W. 1 Shankar Kanhuji Devyhare (Exhibit 37)
(2) P.W. 2 Damodhar Sadashvi Thakare (Exhibit 38)
(3) P.W. 3 Tima Maroti Meshram (Exhibit 41)
(4) P.W. 4 Kanuji Adkuji Deware (Exhibit 44)
(5) P.W. 5 Purushottam Patiram Suryawanshi (Exhibit 47)
(6) P.W. 6 Bhauji S/o Bhikaji Tekam (Exhibit 48)
(7) P.W. 7 Pandurang S/o Mahadeo Paturkar (Exhibit 57)
(8) P.W. 8 Bhawarao Budhaji Dhawade (Exhibit 59)
(9) P.W. 9 Madhukar S/o Motiramji Mahatale (Exhibit 62)
(10) P.W. 10 Dr. Aaitshamsher Kazami (Exhibit 69)
(11) P.W. 11 Dr. Narendra S/o. Shriram Dange (Exhibit 73) and
(12) P.W. 12 Dr. Vijay S/o. Laxman Salkute (Exhibit 83)
(vii) Trial Court recorded statements of accused under Section 313 of
Cod of Criminal Procedure. After hearing the prosecution and defence,
learned trial Court acquitted all the respondents/accused by impugned
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judgment dated 30-6-2005. Hence, the appellant/prosecution filed the
present appeal.
3. Heard learned Additional Public Prosecutor Shri Damle for
the State/appellant. He has submitted that evidence of P.W. 1, P.W. 4,
P.W. 5 and P.W. 7 show that accused persons beat P.W. 1 and P.W. 4 by
sticks. Accused persons beat deceased Muka by axe. They also beat
P.W. 1 by axe. Deceased Muka died due to the act of accused persons.
Learned trial Court did not consider the evidence of P.W. 1, P.W. 4,
P.W. 5 and P.W. 7 properly and wrongly acquitted all the respondents.
Learned Additional Public Prosecutor has submitted that sufficient
evidence is brought on record by the prosecution, hence, appeal be
allowed and all the respondents be convicted for the offences charged
against them.
4. Heard learned counsel Shri Joshi holding for Shri Ghate,
learned counsel for the respondents. He has pointed cross-examination
of all the material witnesses and submitted that there is material
contradictions in their evidence. Learned counsel pointed out cross-
examination of Medical Officer Shri Salkute (P.W. 12) and submitted
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that all the injuries on the person of P.W. 1 Shankar were simple in
nature. He did not notice any injury on the person of P.W. 4. His cross-
examination shows that injuries noted on the person of Shankar are
possible by falling on the ground. Learned counsel pointed out evidence
of Dr. Narendra Dange (P.W. 11) and submitted that all injuries found
on the dead body of Muka were simple in nature. As per admission in
cross-examination of this Doctor, those injuries were possible by falling
on the ground.
5. P.W. 1, P.W. 4, P.W. 5 and P.W. 7 are the material
witnesses. P.W. 1 and P.W. 4 are the injured witnesses as per the case
of prosecution. P.W. 1 has stated in his evidence that all accused
persons rushed towards him with axe and sticks. Accused Subhash gave
blow of axe on his head. Other accused beat him by sticks. Then his
father and uncle Muka intervened. All accused persons dragged his
father. When his uncle Muka tried to intervene, he was beaten by axe
and sticks. His uncle Muka died on the spot. Material contradiction is
brought on record in his cross-examination. He has stated that he was
not hit from the reverse of the axe but from it's blade. Potion marked 'A'
was pointed him but he denied.
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6. P.W. 4 father of P.W. 1 has stated that he was also beaten in
the incident. But P.W. 1 has not stated anything that his father/P.W. 4
was also beaten by accused persons. Medical report of P.W. 4 shows
that he did not sustain any injury.
7. P.W. 1 has stated in his evidence that he was beaten by axe.
When deceased Muka intervened, he was also beaten by axe and sticks
by all the accused persons. It is pertinent to note that P.W. 5 Sarpanch
of the village and friend of P.W. 1 supported the case of prosecution. But
he has not stated that accused persons gave blow of axe to P.W. 1 and
deceased Muka. He has stated that P.W. 1 Shankar was beaten by
accused Suresh and Subhash. Subhash gave blow of stick on the head of
Shankar. Shankar fell down. When Muka intervened, he was also
beaten by stick. He has specifically stated that both the parties (accused
and complainant party) were beating each other by means of sticks. He
has stated that in the quarrel, Muka fell down. Thereafter they taken
him to the hospital.
8. P.W. 7 has stated in his evidence that there was quarrel
between accused persons and complainant party. Accused Subhash
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assaulted P.W. 1 Shankar by means of stick. Later on, Subhash
assaulted Shankar by axe on his head. He tried to intervene but his wife
taken him to house.
9. Evidence of P.W. 1, P.W. 4, P.W. 5 and P.W. 7 are in respect
of the incident. Their evidence appears to be contradictory. P.W. 4 has
stated that he was also beaten by accused persons. But P.W. 1 has not
stated about beating to his father (P.W. 4). P.W. 1 and P.W. 4 have
stated that accused persons beat P.W. 1 by axe and deceased Muka but
independent witness P.W. 5 who was the Sarpanch and friend of P.W. 1
clearly stated that there was quarrel between both the group. They beat
each other by sticks. During the quarrel, P.W. 1 and deceased Muka fell
down. This independent witness not stated that any of the accused gave
blow of axe on the person of P.W. 1 or deceased Muka.
10. Medical evidence is very material. P.W. 10 Dr. Kazami
examined accused Natthu and Subhash. They were having injuries.
P.W. 12 Dr. Salkute examined P.W. 1 and P.W. 4. He found contusion
and abrasions on the person of P.W. 1. Accordingly, he issued medical
certificate, Exhibit 85. P.W. 12 examined P.W. 4 on next date i.e. on
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21-9-2000. He did not find any injury on his person. Accordingly, he
issued medical certificate, Exhibit 86. In the cross-examination, P.W. 12
Dr. Salkute has stated that injuries noted on the person of P.W. 1
Shankar are possible if a person fall on the ground.
11. P.W. 11 Dr. Dange conducted postmortem on the dead
body of deceased Muka. He found four injuries. All four injuries were
of simple in nature i.e. contusions. As per his evidence in cross-
examination, he did not notice any injury caused by sharp object.
External injuries found on the dead body can be caused if a person fell
on hard surface.
12. It is clear from the evidence of P.W. 5, Sarpanch
Shri Purushottam Suryawanshi that there was quarrel between two
group. In the quarrel, both were having sticks in their hands. They beat
each other by sticks. Though P.W. 1 and P.W. 4 have stated that
accused Subhash beat P.W. 1 and deceased Muka by axe, but there is no
evidence to corroborate their versions. On the other hand, independent
witness P.W. 5 not stated anything about causing injury by axe.
Independent witness has stated that both parties beat each other by
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sticks. Therefore, evidence of P.W. 1 and P.W.4 that accused Subhash
gave blow of axe to P.W. 1 and deceased Muka is not reliable.
Moreover, material contradictions are brought on record in the cross-
examination of P.W. 1.
13. Medical evidence also supports the defence of accused.
P.W. 12 Dr. Salkute who examined P.W. 1 specifically stated that
injuries found on the person of P.W. 1 can be caused by falling on the
ground. There is no dispute that P.W. 1 fell down during the quarrel.
P.W. 12 not noticed any injury on the person of P.W. 4. P.W. 4 has
stated that he was beaten by accused persons by sticks but P.W. 1 not
stated anything in respect of beating to P.W. 4.
14. In respect of injury to deceased Muka, though P.W. 1 and
P.W. 4 have stated that accused Subhash gave blow of axe to deceased
Muka and therefore, he sustained injury and fell down on the ground.
This evidence is not supported by medical evidence and the evidence
of independent witness P.W. 5. P.W. 5 not stated anything that any
of the accused beat deceased Muka by axe. Moreover, evidence of
Dr. Dange clearly shows that he did not find any injury by sharp
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weapon. His cross-examination shows that injuries found on the dead
body of deceased Muka can be caused by falling on the ground.
15. There is no dispute that there was quarrel between P.W. 1,
P.W. 4 and accused/respondents. As per the evidence of P.W. 5, both
parties beat each other by sticks. During the quarrel, P.W. 1 and
deceased Muka fell down. As per the admission of Doctor who
examined P.W. 1, injuries found on the person of P.W. 1 can be caused
by falling on the ground. As per the evidence of Dr. Dange P.W. 11, the
injuries found on the dead body can be caused by falling on the ground.
Therefore, possibility cannot be ruled out that there was quarrel
between two parties. In the quarrel, P.W. 1 and deceased Muka fell
down and sustained injuries.
16. Prosecution has miserably failed to prove that accused
persons killed deceased Muka by causing injuries by sharp weapon i.e.
axe. Prosecution has failed to prove that accused persons attempted to
commit murder of P.W. 1 Shankar. On the other hand it is clear that
P.W. 1 and deceased Muka sustained injuries during the quarrel by
falling on the ground. Learned trial Court rightly considered all the
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evidence on record in right perspective and rightly acquitted all the
accused/ respondents. There is no merit in the appeal. Hence, we pass
the following order.
ORDER
(i) The appeal is dismissed.
(ii) R & P be sent back to the trial Court.
JUDGE JUDGE
wasnik
