The State Of Mah vs Utam Ganpat Kale & Ors
2018 Latest Caselaw 854 Bom

                                                         Cri. Appeal No.84/2006
                                      (( 1 ))


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


                     CRIMINAL APPEAL NO.84 OF 2006

 The State of Maharashtra,
 through Police Inspector,
 Ghansawangi Police Station,
 Tq. Ghansawangi, District Jalna                 ...   APPELLANT
                                                 (Original Complainant)
          VERSUS

 1.       Uttam s/o Ganpat Kale,
          Age 62 years, Occu. Agriculture,

 2.       Laxman s/o Sonaji Kale,
          Age 35 years, Occu. Agriculture,

 3.       Ashok s/o Uttam Kale
          Age 32 years, Occu. Agriculture,

 4.       Vithal s/o Uttamrao Kale,
          Age 29 years, Occu. Agriculture,

          All R/o Village Limboni,
          Tq. Ghansawangi, District Jalna.       ...   RESPONDENTS
                                                 (Original Accused)

                                .....
 Mrs. D.S. Jape Ansingkar, A.P.P. for appellant/ State
 Shri Joydeep Chatterji, Advocate for respondents
                                .....

                                 CORAM:     T.V. NALAWADE AND
                                            SUNIL K. KOTWAL, JJ.

                  Date of reserving judgment : 18th January, 2018.
                  Date of pronouncing judgment : 24th January, 2018.

 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. The acquittal of respondent Nos.1 to 4 of the offence

punishable under Sections 302, 324, 504 read with Section 34 of

Cri. Appeal No.84/2006 (( 2 ))

the Indian Penal Code and under Section 135 of the Bombay

Police Act by Additional Sessions Judge, Dhule in Sessions Case

No.83/2003 is challenged by State in the present Criminal

Appeal.

2. The facts of the prosecution case in brief are that, on

19.5.2003, brother of Pandit Kale (deceased) was ploughing his

agricultural land and that time, the quarrel arose in between

Dnyanoba (P.W.12) and accused Nos.1 and 4, which resulted into

assault by stick and manhandling of Dnyanoba Kale. On the

same day, at about 7.00 p.m., when Dnyanoba (P.W.12) was

returning to his residence, that time accused No.1 assaulted

Dnyanoba near his residence. Hearing the cries of Dnyanoba

(P.W.12), the deceased Panditrao came outside of his residence

and that time accused No.1 Vithal, who was hiding by the side of

door of the house of deceased, inflicted stick blow on the head of

deceased, resulting into severe head injury. When sons of the

deceased namely Ramesh (P.W.8), Sarjerao (P.W.14) tried to

rescue their father, that time they were also assaulted by all the

accused persons by stick, fists and kicks. Even Sarjerao

(P.W.14) sustained head injury. As deceased became

unconscious on the spot, initially he was rushed to hospital at

Ambad and from there, he was referred to Civil Hospital, Jalna

and thereafter to Government Medical College & Hospital (Ghati),

Cri. Appeal No.84/2006 (( 3 ))

Aurangabad. On 22.5.2003, Ramesh (P.W.8) lodged F.I.R.

Exh.53 to Police Station, Ghansawangi at about 1.00 p.m. and as

a result, initially, offences punishable under Sections 307, 325,

324, 323, 504 read with Section 34 of the Indian Penal Code and

under Section 135 of the Bombay Police Act was registered.

After the death of deceased Panditrao on 23.5.2003 at about

12.35 p.m., Section 302 of the Indian Penal Code was added. By

that time, the investigation was started and accused came to be

arrested. The investigating officer (P.W.15) prepared spot

panchanama Exh.82 on 22.5.2003. On 27.5.2003, accused No.1

Uttam made disclosure statement before the investigating officer

and panchas, and in pursuance of that statement, blood stained

stick (Article 7) came to be recovered which was hidden in the

sugarcane crop. By that time, post mortem examination of the

dead body of the deceased was performed. Even injured witness

Sarjerao was also medically examined. Blood stained clothes of

the deceased, weapon of the offence (Article 7) and other seized

articles were referred to Chemical Analyser. After completion of

the investigation, charge sheet was filed against accused Nos.1

to 4 before the Judicial Magistrate, First Class, Ambad.

3. Offence punishable under Section 302 of the Indian

Penal Code being exclusively triable by Court of Sessions, this

case was committed to the Sessions Court, Jalna. The then

Cri. Appeal No.84/2006 (( 4 ))

Additional Sessions Judge, Jalna framed charge (Exh.24) against

accused Nos.1 to 4 for the offences punishable under Sections

302, 324, 504 read with Section 34 of the Indian Penal Code.

Accused pleaded not guilty and claimed trial.

4. Prosecution examined total 15 witnesses. Defence

examined one defence witness namely Dr. Sharad Kale. Defence

of the accused is of total denial. According to them, in the

evening of the incident, Dnyanoba Kale assaulted accused No.1

Uttam when he was standing in front of his Wada. Even

deceased Panditrao took part in the said assault and there was

scuffle. Deceased got hit his head to a cement electric pole

situated nearby that spot and sustained head injury. According

to accused, they also lodged F.I.R. To Police Station,

Ghansawangi against Dnyanoba Kale and others and as a

counterblast, the informant Ramesh and his companions

concocted story of assault and lodged false complaint on

22.5.2003 involving the accused persons.

5. After considering the oral and documentary evidence

placed on record by both the parties, the learned trial Court

pleased to acquit the accused on the ground of unreliable

testimony of eye witnesses and unexplained delay in lodging

F.I.R. The trial Court also considered the suppression of genesis

Cri. Appeal No.84/2006 (( 5 ))

of the occurrence by prosecution on account of not giving

explanation for the injuries found on the body of accused persons

and their family members.

6. Heard strenuous submissions of learned A.P.P. for the

State and Shri Joydeep Chatterji, the learned counsel for the

respondent Nos.1 to 4. Learned A.P.P. submits that, the incident

occurred on 19.5.2003 and evidence of the witnesses was

recorded by the trial Court after lapse of about two years i.e. in

the year 2005 and, therefore, the discrepancies emerging in the

testimony of eye witnesses cannot be viewed with suspicion. Her

next limb of the argument is that, delay of more than two days in

lodging the F.I.R. is explained by the prosecution for the

circumstances that after the occurrence, the deceased was in

urgent need of medical aid and all the family members of the

deceased were busy in attending the deceased in the hospital

and, therefore, they could not contact the police at Police Station,

Ghansawangi. According to learned A.P.P., when all eye

witnesses including injured witness have fully corroborated the

version of each other on every material particulars, merely on

the ground of non-explanation of injuries sustained by accused

and their family members, benefit of doubt cannot be given to

the accused.

Cri. Appeal No.84/2006 (( 6 ))

7. On the other hand hand, learned counsel for the

respondents has pointed out number of inconsistencies emerging

in the evidence of P.W.5. He submits that, prosecution has not

examined independent witnesses though incident occurred on the

public road. He points out that, there were many opportunities

to the family members of the deceased to promptly lodge the

F.I.R. to Police Station, Ghansawangi. He submits that, even the

recovery of blood stained stick as per disclosure statement of

accused No.1 is absolutely doubtful and tampering of seized

articles cannot be ruled out by the prosecution. The sum and

substance of the arguments advanced by learned defence

counsel is that, no explanation has been furnished by the

prosecution for the injuries proved on the body of accused

persons and their family members. Therefore, on account of

suppression of genesis of the occurrence benefit of doubt goes in

favour of the accused persons.

8. In the case at hand, undisputedly there is no political

rivalry or personal enmity in between family of the accused and

deceased. On the other hand, as per prosecution case, the

incident occurred in front of the house of accused and deceased,

only on account of quarrel in between Dnyanoba Kale, who is

brother of the deceased and the accused persons, which occurred

on 19.5.2003 at noon hours in the field of Dnyanoba Kale. Even

Cri. Appeal No.84/2006 (( 7 ))

accused have not disputed the occurrence of this quarrel in the

field of Dnyanoba Kale. The testimony of Dwarkadas Kale

(P.W.3) examined by prosecution is not challenged by defence

counsel that on the date of the incident, when he was ploughing

in the field of Dnyanoba Kale by tractor, that time accused No.4

and Dnyanoba Kale (P.W.12) abused each other and there was

scuffle in between them. Thus, the root cause for occurrence of

incident at evening hours is not disputed by both the parties.

However, at the same time, it cannot be ignored that, such type

of trifling quarrel in between villagers cannot be treated as

motive for commission of murder. However, if the direct

evidence is trustworthy and reliable to base the conviction, even

the absence of motive does not play any role.

9. To prove the occurrence, prosecution has placed

reliance on testimony of eye witnesses namely P.W.6

Sudamatibai Kale , wife of the deceased; P.W.8 Ramesh Kale,

P.W.14 Sarjerao Kale (sons of the deceased), P.W.11

Parmeshwar Kale, P.W.12 Dnyanoba Kale (both brothers of the

deceased). Thus, obviously, prosecution has examined only the

witnesses who are closely related with the deceased. However,

trite law is that, if the testimony of related witnesses is free from

infirmity, then conviction can be based on such testimony even

without any corroboration.

Cri. Appeal No.84/2006 (( 8 ))

10. Before proceeding to analyse the oral testimony of

eye witnesses, we prefer to refer the medical evidence of Dr.

Naresh Zanzad (P.W.9), who is doctor, Government Medical

College & Hospital at Aurangabad and who performed autopsy

examination of the dead body of Panditrao on 23.5.2003. This

witness has proved one sutured wound over right parietal region

at vertex horizontal place and one contused abrasion over left

side of the face, just lateral to left eye. This witness noted

following internal injuries on the head and brain of the

deceased :

(i) Haemorrhage under scalp over right tempero parietal

region measuring 8 cm. x 3 cm.

(ii) Lenear fracture of right tempero pareital region

horizontal in direction with infiltration staining.

This witness also noticed injuries to the brain as under :

(i) Subdural haematoma at the left tempero parietal

occipital lobe measuring 12 cm. x 6 cm x 1 cm.

          (ii)     subarachnoid haemorrnage.

          (iii)    Contusion on left tempero parietal lobe measuring 4

                   cm. x 2 cm.





                                                               Cri. Appeal No.84/2006
                                          (( 9 ))

11. Dr. Naresh (P.W.9) opined that the above injuries

were ante mortem injuries and the probable cause of death was

head injury in the form of fracture to skull bone with subdural

haematoma. He has duly proved the post mortem notes

(Exh.66). He opined that the above injuries are possible by stick

blow on the head. It is to be noted that, in his entire cross-

examination, the cause of death of the deceased is not at all

disputed by the defence.

12. Even by examining Dr. Rajkumar Gothwal (P.W.10),

the prosecution has duly proved M.L.C. Certificate Exh.60. This

witness has proved contused lacerated wound on the right

parietal tempero region of deceased and simple abrasion on the

left hand index finger on the dorsal aspect. In addition to this,

this witness has proved medical examination of Sarjerao

Panditrao Kale (P.W.14) and proved the simple abrasion with

swelling on the skull at right parietal region of Sarjerao, caused

within 12 hours. However, from his cross-examination, it

emerges that, the abrasion sustained by Sarjerao (P.W.14) could

be self inflicted injury and the head injury sustained by deceased

Panditrao is possible due to forcible dash on vertical cement pole.

13. After careful scanning of the evidence of Sudamati

(P.W.6), Ramesh (P.W.8), Sarjerao (P.W.14), Dnyanoba

Cri. Appeal No.84/2006 (( 10 ))

(P.W.12) and Parmeshwar Kale (P.W.11), it emerges that, they

had contradicted each other on every material particulars.

regarding occurrence of the incident. Ramesh (P.W.8) claims

that, at the time of assault to Dnyanoba Kale, he was standing in

front of the door of his house. On the other hand, Sudamati

(P.W.6) deposes that, when she heard cries of Dnyanoba Kale,

that time deceased Panditrao and her both sons (including

Ramesh P.W.8) were sitting inside the house. On the other

hand, Parmeshwar (P.W.11) has not whispered a word regarding

presence of Ramesh (P.W.8) outside of his house at the time of

assault to Dnyanoba Kale. According to Ramesh Kale (P.W.8),

when Dnyanoba Kale came in front of the house of this witness,

that time accused Uttamrao caught hold Dnyanoba and assaulted

him on his back by stick and manhandled him. To the contrary,

according to Parmeshwar Kale (P.W.11), when Dnyanoba Kale

was proceeding towards his residence, that time initially accused

Uttam, accused Ashok and accused Laxman (accused Nos.1 to 3)

were sitting in front of their residence and accused Uttam teased

Dnyanoba that he was proceeding calmly like cat and he had

power while in the field. Parmeshwar (P.W.11) deposed that

accused No.1 Uttam asked accused Nos.2 and 3 to catch hold

Dnyanoba and thereafter accused Nos.2 and 3 started beating

Dnyanoba by stick. Thus, Ramesh (P.W.8) and Parmeshwar

(P.W.11) have contradicted each other on every particular as to

Cri. Appeal No.84/2006 (( 11 ))

who had assaulted Dnyanoba Kale, which was the initial part of

the occurrence. On the other hand, Sudamati (P.W.6) has not

whispered a word regarding assault to Dnyanoba by stick by

accused Nos.2 and 3. Climax is that, Dnyanoba Kale (P.W.12)

deposed that, when he reached in front of his house, that time

accused No.1 Uttam was alone sitting in front of his residence

and when he was about 5 ft. away, accused No.1 got up and

made Dnyanoba to fall on the ground and assaulted him by fists

and kicks. Thus, the prosecution theory regarding assault to

Dnyanoba Kale by the accused persons at about 7.00 p.m., which

was the reason for deceased to come outside his house after

hearing shouts of Dnyanoba, has become a doubtful

circumstance.

14. It is to be noted that, including Sudamati (P.W.6),

Ramesh (P.W.8), Sarjerao (P.W.12) and Parmeshwar (P.W.11),

every witness deposed regarding hiding of accused No.4 Vithal

near the door of the house of deceased and assault to deceased

Pandit by accused No.4 Vithal by stick on his head as soon as he

came outside his house. However, it is most important to note

that, at the time of assault to Dnyanoba Kale, deceased Pandit

was sitting inside his house along with his wife Sudamati and son

Sarjerao. Thus, accused No.4 Vithal was not expected to know

that deceased Panditrao would come outside his house. Even on

Cri. Appeal No.84/2006 (( 12 ))

the date of incident, none of the accused had any dispute or

quarrel with deceased Panditrao. Therefore, obviously, accused

No.4 Vithal had no reason to hide near the door of house of

Panditrao with preparation to assault the deceased. Thus, theory

of the prosecution that accused No.4 Vithal was hiding near the

door of the house of deceased and assaulted the deceased as

soon as he stepped outside his house, appears to be most

doubtful.

. Even the testimony of these all eye witnesses

regarding actual assault to deceased Panditrao by other accused

is totally contradictory to each other as to which accused

assaulted Panditrao when he was lying on the ground and who

assaulted and beaten Sarjerao. As every witness has

contradicted each other on every material particular of the

occurrence, and as theory put up by prosecution is doubtful and

improbable regarding sudden attack by accused No.4 on

Panditrao, the evidence of these all related witnesses does not

inspire confidence. Learned trial Court has rightly considered

these all inconsistencies in detailed manner and rightly

disbelieved the testimony of these eye witnesses.

15. Another important circumstance before the Court is

that, by examining defence witness Dr. Sharad Kale (D.W.1),

Cri. Appeal No.84/2006 (( 13 ))

defence has proved that on 20.5.2003 i.e. on next day of the

incident, Medical Officer Dr. Sami (who is not available in India),

had clinically examined accused Ashok Kale, Vithal Kale,

Laxmibai Sonaji Kale, Sumanbai Vithal Kale, accused Laxman

Sonaji Kale and issued injury certificates (Exh.102 - Exh.106).

According to this witness, as per record, these all accused and

their family members sustained various injuries including

contused lacerated wound on the head of accused Uttam,

contused lacerated wound on the head of accused Ashok and

swelling on forehead of accused Vithal together with other

injuries specified in the certificates. Even the female family

members of the accused sustained many external injuries as

noted in the above injury certificates. However, prosecution has

conveniently suppressed these injury certificates which were

easily available to investigating officer at the time of

investigation.

16. Even investigating officer (P.W.15) has admitted in

his cross-examination that, when accused No.1 Uttam was

arrested, he had head injury and even then, he was not referred

to medical officer for examination. Even Head Constable Pandit

Bhosle (P.W.13) has admitted in his cross-examination that he

had investigated Crime No.52/2003, registered under Sections

143, 147, 148, 324, 337 read with Section 149 of the Indian

Cri. Appeal No.84/2006 (( 14 ))

Penal Code, registered against witnesses Ramesh Kale,

Dnyanoba Kale, Ashok Kale, Parmeshwar Kale and Sarjerao Kale

as well as deceased Panditrao. He also admits that, charge sheet

was filed before the Magistrate's Court against these all

prosecution witnesses. In view of these circumstances on record

when defence of the accused is of counter attack by deceased

and his family members on the date and time of the occurrence,

it was duty of the prosecution to explain the injuries sustained by

accused persons and their family members. Prosecution should

not have suppressed the filing of this counter criminal case

against the prosecution witnesses. The Hon'ble Apex Court, in

Laxmisingh & ors. Vs. State of Bihar reported in [1976 (4)

SCC 394], ruled that, in murder case, the non-explanation of

injuries sustained by accused at about time of the occurrence or

in the course of altercation is a very important circumstance,

from which the Court can draw the following inferences :

(1) that, the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

Cri. Appeal No.84/2006 (( 15 ))

No doubt, in the same case Apex Court also held

that, "Where evidence is so clear and cogent, so independent and

disinterested or so probable, consistent and creditworthy, the

non-explanation of injury by prosecution may not affect the

prosecution case.

17. In the case at hand, as observed above, the entire

prosecution theory appears to be doubtful and witnesses have

contradicted each other on very material particulars. Prosecution

has suppressed genesis of occurrence. In the peculiar

circumstances, the suppression of injuries on the person of

accused persons by prosecution is sufficient to extend the benefit

of doubt in favour of the accused.

18. Even if the circumstantial evidence is considered, the

trial Court has rightly rejected the recovery of blood stained

weapon stick (Article 7) as per disclosure statement of the

accused No.1 Uttam. Because panch witness Shrirang Sangle

(P.W.4) and investigating officer P.W.15 have totally contradicted

each other as to from which place the weapon of the offence was

recovered at the instance of accused No.1. According to Shrirang

(P.W.4), the stick was recovered from sugarcane crop and to the

contrary, investigating officer (P.W.15) deposes that, the stick

was taken out by accused No.1 Uttam from his residence.

Cri. Appeal No.84/2006 (( 16 ))

Similarly, seizure of blood stained earth from the spot on

22.5.2003 i.e. after passage of more than two days from the

date of occurrence is rightly discarded by trial Court.

19. Learned counsel for the respondents has also drawn

our attention towards unexplained delay in lodging F.I.R. The

incident occurred on 19.5.2003 and the F.I.R. was lodged by

Ramesh (P.W.8) on 22.5.2003 at about 1.00 p.m., i.e. after

delay of more than two days. The immediate need of medical aid

to the deceased cannot be a acceptable ground for delay of more

than two days in the circumstances of this particular case for the

reason that, in the family of deceased, his two young sons

namely Ramesh (P.W.8) and Sarjerao (P.W.12) were available

and any one of them could have immediately approached Police

Station, Ghansawangi to inform the police about the occurrence.

In addition to these two sons, two brothers namely Parmeshwar

Kale and Dnyanoba Kale could have also informed the police

about the occurrence. However, despite availability of these

family members, no action was taken by any family member of

deceased to inform the police about the occurrence. On the basis

of F.I.R. lodged by Ramesh (P.W.8), Crime No.53/2003 was

registered at Police Station, Ghansawangi. On the other hand,

on the basis of F.I.R. lodged by accused persons against

deceased and prosecution witnesses, Crime No.52/2003 was

Cri. Appeal No.84/2006 (( 17 ))

registered. Thus, possibility cannot be ruled out that after

knowledge of the F.I.R. lodged by accused persons, the family

members of the deceased concocted false story and lodged F.I.R.

after inordinate delay of more than two days, only as a

counterblast. In the circumstances, unexplained delay in lodging

the F.I.R. is also one of the ground to extend benefit of doubt in

favour of the accused persons.

20. Therefore, neither trustworthy and reliable direct

evidence is available nor the circumstantial evidence is available

to connect the accused with the death of the deceased Panditrao.

Learned trial Court has taken probable view while acquitting the

accused persons of all the charges. We hold that, this appeal

being devoid of merits, deserves to be dismissed. Hence we pass

the following order :

ORDER

(i) The Criminal Appeal is dismissed.

(ii) Bail bonds of respondents/ accused shall stand cancelled.

          ( SUNIL K. KOTWAL )                       ( T.V. NALAWADE )
               JUDGE                                       JUDGE


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