The State Of Maharashtra vs Sanjay Bhivsane & Ors
2018 Latest Caselaw 645 Bom

                                     {1}                         criapel521-01

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

                    CRIMINAL APPEAL NO.521 OF 2001

 The State of Maharashtra                                       APPELLANT
 Through Public Prosecutor
 High Court, Bench at Aurangabad

          VERSUS

 1.       Sanjay Govind Bhivsane                          RESPONDENTS
          Age - 24 years,
          R/o Chincholi

 2.       Govind Vithal Bhivsane
          (Respondent No. 2 died,
          Appeal abated against
          respondent No.2)

 3.       Baban Govind Bhivsane
          Age - 22 years,
          R/o As above

                                .......

Mr. S. D. Ghayal, APP for the appellant State Mr. N. S. Ghanekar, Advocate for respondents .......

[CORAM : SUNIL P. DESHMUKH & P. R. BORA, J.J.]

DATE : 18th JANUARY, 2018

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

1. The State is in present appeal against decision dated 31st

August, 2001 by Sessions Judge, Aurangabad in Sessions Case

No.24 of 1999, whereunder, respondents - accused No. 1 to 3

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had been acquitted of accusation of commission of offence

punishable under section 302 read with section 34 of the Indian

Penal Code.

2. Law had been set in motion upon a report having been

made at police station Phulambri by Haribhau Sajan Bhivsane,

resident of Chincholi, Taluka - Phulambri, District - Aurangabad

on 25th September, 1997 stating to the effect that he was

resident of Chincholi and had two brothers, namely, Namdeo and

Pandurang. Namdeo and him were staying separately at

Chincholi. While he was staying in 'Buddhawada', Namdeo had

been residing at 'Zopadpatti'. There had been dispute over a

piece of land in 'Buddhawada', in front of their house with the

family of the accused. Civil litigation in the court had been

decided in their favour and as such, family of the accused had

been entertaining grudge against them.

3. Around previous festival of 'Pola', accused - respondent

No.1 and accused - respondent No. 3 had consumed liquor and

there had been quarrel between them, wherein they had

suffered injuries. Yet, a complaint had been made against the

informant, his son and brother by accused persons in police

station and they were arrested.

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4. He further has reported that on 25th September, 1997 his

brother Namdeo had been to him around 6.00 a.m. telling him

that he would go to Talathi at Bilda to see as to whether

mutation in respect of the well has been effected. As such,

Namdeo had proceeded to Bilda. Thereafter, one Dr. Subhash

Jadhav from Bilda had been to the village telling that Namdeo

Bhivsane is lying in a streamlet and he was bleeding. Thereupon,

the informant along with his wife, wife of Namdeo and a few

persons from the village had been in Bilda area and had found

his brother Namdeo lying dead. Bleeding injuries were seen on

his head and near eye. Clothes of Namdeo were smeared with

blood. Thus, he suspected that accused persons have murdered

Namdeo. He, therefore, alleged that accused No.1 to 3 and their

accomplices had hit Namdeo on his head with stone and sharp

weapon.

5. Inquest and spot panchanamas had been drawn. The

corpse had been sent for post mortem to Government Medical

College and Hospital at Aurangabad. Post mortem report shows

cause of death to be head injury viz., laceration of brain and

intercrainial hemorrhage due to fracture of skull bones and

associated findings were - fracture of multiple ribs on left side,

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multiple contusions and abrasions over body. Viscera was

preserved and had been sent to forensic science laboratory.

There had been seizure of stones having blood stains as well as

sand and mud. Clothes of deceased Namdeo had also been

seized on 25th September, 1997 itself under a panchamama,

those were full sleeves white shirt having blood stains and cotton

'buniyan', white 'dhoti' with green border and two 'uparnas' also

having blood stains. Clothes of accused No. 3 Baban were seized

on 27th September, 1997 pursuant to procedure under section 27

of the Indian Evidence Act, whereunder a red and white strapped

full sleeves shirt along with light gray colour tricot pant both

having blood stains were seized.

6. Accused were charged of commission of offence punishable

under section 302 read with section 34 of the Indian Penal Code.

Judicial Magistrate, First Class, as such, had committed the case

to the court of Sessions at Aurangabad. The Sessions Court

accordingly framed charge against the accused persons, who

claimed to be tried.

7. Informant PW-1 Haribhau had been examined at Exhibit-

9. He has stated in his evidence that earlier battering had taken

place and accused No. 1 had hit accused No. 3 on head.

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However, they had lodged a complaint against him and deceased

Namdeo and they were taken to police station, where accused

No.1 and 3 had threatened him and Namdeo that they will kill

them. On 25th September, 1997, Namdeo had been to the

informant around 6.30 a.m. telling him that he would go to Bilda

to see about mutation entry of the well and that around 8.00

a.m. Dr. Subhash Jadhav had been to wife of Namdeo telling that

Namdeo had fallen down in a streamlet near Bilda and had

suffered bleeding injuries. Thereupon, the informant along with

his wife and wife of Namdeo had been to a streamlet in Bilda,

where Namdeo had been lying. He had noticed that Namdeo had

suffered injuries on upper portion of right eye and backside of

his head and had found him dead. Clothes of Namdeo were

smeared with blood and there were two / three blood stained

sharp stones lying around and he had lodged report around

12.00 noon at Phulambri police station. Thereafter, police had

been to the spot of incident and the dead body was sent to

hospital for post mortem.

8. During his cross examination, PW-1 Haribhau has stated

that within half an hour after Namdeo had left for Bilda on the

date of incident, Dr. Jadhav had come to village Chincholi and

that his son had reached the spot of incident before him and that

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he had reached the spot around 8.00 or 8.30 a.m. He further

states in the cross examination that about fifty to sixty persons

had gathered near dead body of Namdeo and that Raosaheb, his

son, had already gone to police station along with police Patil to

inform about the incident and they had brought along with them

a police constable from Phulambri police station. He has further

stated in the cross-examination that he has lodged report

against the accused persons on suspicion and that he had not

asked anyone who had gathered around the dead body of

Namdeo, as to how the incident had taken place.

9. PW-2 Uttam Parbat Jogdande and PW-3 Dhondiram Shekuji

Waghul, examined at Exhibit-11 and Exhibit-15 respectively are

witnesses of inquest, spot and recovery panchanamas.

10. PW-4 Rukhmanbai Namdeo Bhivsane who had been

examined at Exhibit-18 is the wife of deceased Namdeo. Her

version in respect of previous incident of 'pola' festival is

different from that of PW-1 Haribhau. She states that accused

had assaulted her husband Namdeo and had lodged complaint in

the police station against the informant and deceased Namdeo.

She, however, corroborates version of PW-1 that it was Dr.

Subhash Jadhav who had come to her telling that Namdeo had

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been lying in a streamlet at Bilda. She further states that her

nephew Raosaheb went to the spot on motorcycle with Dr.

Subhash Jadhav and she went on the spot with one wireman

from Chincholi finding that her husband Namdeo had been lying

in a pool of blood in the streamlet. She had sent Raosaheb - her

nephew to her brother in law at Aurangabad and that her father

in law had come there and thereafter, panchanama was drawn.

She pleaded ignorance about arrest of her husband and

informant in respect of incident of 'pola'. She further, in her

cross-examination, states that before she and Raosaheb had

reached the spot of incident, there had already been collection of

about fifty to sixty persons. Police had come at the scene within

half an hour after they had reached the spot. Police had

immediately started investigation. Namdeo had already been

dead before they had reached the spot. She has stated, she had

not told the police that the accused had threatened that they

would kill her husband and informant Haribhau.

11. PW-8 Raosaheb Haribhau Bhivsane had been examined at

Exhibit-27. He is son of PW-1 informant Haribhau and nephew of

deceased Namdeo. He has stated that around 8.00 a.m. on 25 th

September, 1997 Dr. Subhash Jadhav had come to their house

telling that Namdeo had been vomiting blood in the streamlet at

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Bilda and as such, he went along with Dr. Jadhav to the spot

finding that Namdeo had been lying smeared with blood and that

he was alive when he had reached the spot. Namdeo had told

him as to how the incident had occurred. Conduct of Dr. Jadhav

also appears to be strange of not attending to an injured person

and instead leaving the spot to inform his family members. On

this count, it appears that the version as put forth by Raosaheb

is highly improbable that Raosaheb had been left alone and the

incident had been narrated by Namdeo to him. It may be a case

that since Namdeo had been lying injured, he would not have

been in a position to speak and since Dr. Jadhav may not have

supported, he has not been produced as witness by the

prosecution. There appears to be lapse in proper prosecution of

the matter and thus Dr. Jadhav and Laxman Rama had not been

examined. He states that Namdeo had told him while he was

going from Sanjol to Bilda, accused had followed him and while

he had been climbing down the streamlet, they held him and

gave stone blows on his head and eye. He had asked for water

and while he tried to get him up, Namdeo succumbed to the

injuries. Thereafter, PW-4 Rukhmanbai had come along with

wireman and he had been to Aurangabad informing about the

incident. In his cross-examination, PW-8 Raosaheb has stated

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that there had been no quarrel with the accused on 'pola'. He

has stated that it is not the case that many persons had

gathered near the spot when he had reached there. He in fact

went on to state that not a single person was there. He has

further stated that after reaching him on the spot Dr. Subhash

Jadhav had left the place. He was near the deceased for about

half an hour. Thereafter his father Haribhau had come there. He

states that along with Haribhau and Rukhmanbai, wireman and

many persons had also gathered and he had immediately

informed his father about the narration of incident given to him

by Namdeo. He further states that he had gone back to the spot

from Aurangabad. He further states that he had neither told

narration of deceased Namdeo to the police who had been

present on the spot nor to any other relative. He could not give

explanation as to why the incident, as narrated, had not been

told to the police or the relatives.

12. PW-5 Dr. Anil Digambarrao Jinturkar, who is a medical

officer and had been examined at Exhibit-18, had conducted post

mortem on dead body of Namdeo has opined that Namdeo

Bhivsane died of "head injury in the form of laceration of brain

and intercrainial hemorrhage due to fracture of skull bones" and

associated findings were "fractures of multiple ribs to left side,

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multiple contusions and abrasions over body". His cross

examination is worth mentioning, as he had further opined that

instantaneous death with such injuries is possible and the

injuries can been caused if a person falls from a height of about

10 feet and rolls down. According to him, stone, like muddemal

article, if hit directly, can cause depressed classical fracture.

However, there was no classical depressed fracture mentioned in

the post mortem report in column No.19.

13 PW-6 Sandu states in his evidence at Exhibit-24 that

around 8.30 a.m. on the fateful day, he had been proceeding to

land of Indran Bapu and while walking on the way, he saw

Namdeo and Laxman Rama were sitting on the road and were

chatting. While he was proceeding, they followed him at some

distance. He claims to have seen accused No.3 Baban following

Namdeo, who was going to urinate. Thereafter, while he reached

village Bilda, he heard shouts from a distance of about 500 feet

from the streamlet, however, he did not immediately go to the

spot. While other people went to the streamlet he had also gone

there and found Namdeo lying in the streamlet smeared with

blood. His cross-examination, however, reveals that quite a few

people were proceeding to and fro to villages Sanjol and Bilda. It

had been elicited from his cross-examination that had he seen

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Namdeo and Baban quarreling, he would have intervened.

14. PW-7 Harchand Shankar Bhujange, who had been

examined at Exhibit-25 appears to be a passer by. He, in his

evidence, claims that while he had been going on bicycle to

Dhamangaon, he saw accused No. 2 Govind and his sons coming

from water tank and going towards field and that accused No. 2

Govind had not responded to his call, although he had looked

back. He had seen many people rushing towards water kutta

telling him that Namdeo was killed by accused No. 2 Govind in

the streamlet. In his cross-examination although he purports to

say that he had told names of sons of accused Govind to police,

yet, there appears to be absence of reference to the same in his

police statement.

15. PW-9 Vinayak Bapurao Mahanavar is Assistant Police

Inspector and had been in charge of police station Phulambri. He

had been examined at Exhibit-29. He states that on 25 th

September, 1997, around 10.30 a.m. police patil Bilda gave a

report that dead body of unknown person had been lying in the

streamlet. As such, he had been to the spot and had recorded

the report made to him by PW-1 Haribhau. He, thereafter,

registered the offence at Crime No.120 of 1997 and drew inquest

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and spot panchanamas and also collected three stones smeared

with blood and after recording statements of some witnesses, he

had arrested accused No. 1 and 2 and clothes of the deceased

were seized on the very day and clothes of accused stained with

blood were seized on 27th September, 1997. Blood stained

clothes of PW-8 Raosaheb and blood sample of accused No.2

Govind were also seized and the collected material was sent to

chemical analyst. PW-9 had requested the Tahsildar to prepare a

sketch-map of the spot. He was subsequently transferred and

investigation was taken over by PSI Mundhe who had submitted

charge sheet in the court. In his cross examination he states

that statement of Harishchandra Bhujange had been recorded on

29th September, 1997 at Harsul, who was stated to be eye

witness to the incident. It has been elicited from his cross-

examination that accused No. 1 and 3 were found to be

residents of Ambedkar Nagar, Aurangabad. He had recorded

statement of PW-1 Haribhau on 26 th September, 1997 and he did

not remember about presence of PW-8 Raosaheb on the spot on

the date of the incident.

16. Sessions Judge, after trial, acquitted the accused of all the

charges. Sessions judge considered that although death of

Namdeo was homicidal, yet the prosecution has not been able to

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prove that the accused persons were responsible for the same or

had committed the offence of hitting him with stone and sharp

weapons in furtherance of their common intention to kill

Namdeo.

17. Having regard to the evidence, as had been recorded, it is

obvious that Namdeo died a homicidal death.

18. Accusations against the accused have been made by the

informant on suspicion that there had been a dispute between

family of informant and deceased Namdeo on one side and that

of the accused on the other, which in the court had went in

favour of family of the informant and deceased Namdeo and that

there had been an incident earlier on in which accused persons

had lodged first information report against deceased Namdeo,

informant Haribhau and Raosaheb son of informant and a case

had been registered accordingly against them.

19. There is no eye witness to the incident as can be seen from

the evidence on record. The accusation is with reference to the

suspicion as referred to above. Evidence of having last seen the

accused in the company of deceased Namdeo is in the form of

evidence of passers by on the road joining villages. There is only

one witness i.e. PW-6 Sandu, who in his deposition refers to that

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he had seen Namdeo climbing down the streamlet for urination

and that accused No. 3 Baban had been following him. While

earlier, in his deposition, he refers to that he had seen Namdeo

and Laxman Rama had been chatting on the road and further

that Namdeo had been following him at a distance of 250 feet.

He heard shouts of accused No.3 and deceased Namdeo, yet he

did not go back and he went to the spot only after people had

gathered there. This he states to be around 8.30 a.m. While it is

stated so, it appears to be the case that about two hours earlier

Namdeo had been to village Chincholi telling the informant and

his wife that he was proceeding to Bilda. PW-7 claims to have

seen Namdeo and Laxman Rama around 8.30 a.m. There is long

hiatus between the time at which the informant claims to have

been told by deceased Namdeo about him proceeding to Bilda

and the time at which PW-6 claims to have seen deceased

Namdeo and Laxman Rama on the road.

20. Evidence of PW-8 Raosaheb, who claims to have been

immediately on the spot, puts up a story that around 8.00 a.m.

Dr. Jadhav had been to his house telling that Namdeo had been

vomiting blood. It clearly emerges that it was only Dr. Jadhav,

who had informed the family about Namdeo being seen lying

bleeding in streamlet. Version of Raosaheb shows that Dr.

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Jadhav, after reaching him on the spot of the incident, had left

the place immediately. It has not come on record as to how Dr.

Jadhav happens to know about Namdeo lying in the streamlet. It

thus, emerges that Namdeo had been seen lying bleeding in

streamlet by Dr. Jadhav, according to the version of the

informant and relatives. It is rather strange that Dr. Jadhav had

not attended to the injured Namdeo and had moved away

immediately. He was the first person as it appears from the

evidence, who had seen Namdeo lying in the streamlet and he

did not attend to him and had instead left the place. Dr. Jadhav

has not been examined. His non examination has weakened

prosecution's case. From cross-examination of PW-8 Raosaheb it

emerges that he claims to have told the narration by Namdeo to

him to his father Haribhau and wife of Namdeo Rukminibai about

accused assaulting him. Yet, none of said witnesses refers to any

such narration by Raosaheb to them. It is rather intriguing as to

why in the statement to police, Raosaheb had skipped to refer to

narration of incident by Namdeo to him.

21. Evidence of PW-7 shows that he had reached Bilda around

9.00 a.m., however, by that time many villagers including family

members of Namdeo had gathered around the streamlet.

Further, he purports to claim that he had seen accused from a

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distance of about ten feet and accused have taken about five to

ten minutes to climb the streamlet. He further shows ignorance

about names of persons, from Chincholi and Sanjol he had met

and had not seen the persons of Chincholi anytime before the

incident. In such a case, version of PW-7 about having seen

accused No. 2 Govind and his sons along with him, appears to be

improbable. Going by the version of PW-6, it was Laxman Rama,

who had been known to be last with Namdeo. Laxman Rama was

also an important person who was seen with Namdeo last

according to the version of PW-6, yet he had not been examined.

His version would have been relevant and may have thrown

some light. There is no corroboration to the version of PW-6

about accused No. 3 Baban was seen following Namdeo on the

fateful day.

22. While PW-6 claims to have seen accused No.3 following

deceased Namdeo, PW-7 refers that he had seen it was accused

No.2. There is no evidence at all about accused having been

seen together with Namdeo.

23. Deceased Namdeo and the accused were residents in the

vicinity. Accused No.1 and 2 are stated to be residents of

Ambedkar Nagar Aurangabad. It is nowhere referred to in the

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evidence that the accused were knowing about deceased

Namdeo moving to Bilda on that day. It is not the case that in

close proximity of time any provocative incident amongst them

had occurred or for that matter movement of Namdeo to Bilda

would in any way have enraged the accused beyond the damage

which had already taken place. There are no eye witnesses to

the incident as is vividly seen and the information has been

lodged by Haribhau on suspicion. Evidence, as referred to

hereinabove, is not sufficient to conclusively relate the accused

to the incident. The trial court has taken a view after scrutiny of

the evidence on record which is not incongruous to evidence on

record. In view of aforesaid, the appeal is dismissed.

       [P. R. BORA, J.]            [SUNIL P. DESHMUKH, J.]




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