Bombay High Court
The State/Union Territories Of ... vs Ramji Limba on 9 August, 2021
Bench: S.S. Jadhav, N. R. Borkar
Digitally signed j-cri-appeal-912-98.odt
by DINESH
DINESH SADANAND
SADANAND SHERLA
SHERLA Date:
2021.08.09
14:51:01 +0500 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 912 OF 1998
The State/Union Territories of
Daman and Diu & DNH ... Appellant
V/s.
1. Ramji Limba
Aged about 50 years
Occ: Labour
R/o. Goudwadi, Vanakbara
2. Rama Bhola
Aged about 30 years
Occ: Fishing
R/o. Chandwadi, Vanakbara ... Respondents
----------------
Mr. Hiten S. Venegaokar a/w. Mr. Saurabh Kshirsagar for the
Appellant.
Ms Manisha Devkar, Appointed Advocate for the Respondents.
----------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
RESERVED ON : 31.03.2021.
PRONOUNCED ON : 09.08.2021.
JUDGMENT (PER N.R. BORKAR, J.)
1] This appeal at the instance of State/Union Territories of
Daman, Diu & DNH takes an exception to the judgment and
order dated 9.11.1998 passed by the learned Additional
Sessions Judge, Diu and Daman in Sessions Case No. 40 of
1987. By the impugned judgment and order, the respondents,
who were accused Nos.1 and 2 before the trial court, have
been acquitted of the ofence punishable under section 302
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read with 34 of the Indian Penal Code, 1860 (for short 'IPC').
2] It is the case of the prosecution that the deceased Bava
Punja Solanki was residing with his wife Ranibai Bava (PW-3)
and granddaughter Lalitaben Raja (PW-4) at village Vadiwadi,
Vanakbara, Diu. The incident took place on 27.2.1987. It is
alleged that on the day of incident at about 4.00 p.m.,
accused Nos.1 and 2 came to the house of the deceased and
assaulted him by knife. The deceased was taken to Diu
Hospital. However, he died on the same day.
3] On the basis of report lodged by PW-2 Raja Bava, the
son of deceased, crime was registered against the present
respondents/accused Nos.1 and 2 for the ofence punishable
under section 302 read with 34 of the IPC. On completion of
investigation, the chargesheet was fled against them for the
said ofences.
4] The accused were charged and tried for the above said
ofences. As stated earlier, the trial court by the impugned
judgement and order acquitted the accused.
5] We have heard Mr. Hiten S. Venegaokar, learned counsel
for the appellant and Ms Manisha Devkar, learned appointed
counsel for the respondents.
6] The learned counsel for the appellant submits that the
trial court discarded the evidence of the eye-witnesses, i.e.,
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PW-3 Ranibai, the wife of the deceased and PW-4 Lalitaben,
the granddaughter of the deceased for no valid reasons. It is
submitted that PW-3 and PW-4 are the most natural witnesses
as they were residing with the deceased and thus, they ought
not to have been disbelieved for minor inconsistency in their
evidence. It is submitted that the impugned judgment and
order thus, needs to be quashed and set aside and the
respondents/accused need to be convicted.
7] On the other hand, learned counsel for the respondents
supported the impugned judgment and order.
8] According to PW-3 Ranibai, the wife of deceased, on the
day of incident, at about 4.00 to 5.00 p.m, the accused Nos.1
and 2 came to their house. At that time, her husband was
taking rest. Accused No.1 went near him, took out a knife and
then assaulted her husband by the said knife on his chest and
stomach. Accused No.1 then dragged the deceased in front of
the house. Thereafter, accused No.2 assaulted the deceased
with knife on abdomen and arms. She tried to save her
husband from assault, but accused No.1 pushed her back.
9] In the cross-examination conducted on behalf of the
accused, PW-3 admitted that some people were calling her
husband (deceased) witchcraft expert and because of that
there was enmity of some persons with her husband. She has
further admitted that while recording her statement, only her
name was asked.
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10] According to PW-4 Lalitaben Raja, on the date of incident
at about 4.00 p.m., she and her grandmother were pruning
the fsh. At that time, accused Nos.1 and 2 came to their
house. Accused No.1 took out the knife and started assaulting
her grandfather. She started crying. Thereafter, accused
Nos.1 and 2 went away. She saw that her grandfather was
bleeding.
11] In the cross-examination conducted on behalf of the
accused, PW-4 has admitted that her father was present at
the time of recording of her statement by the police. She
further admitted that her father arrived at the scene of the
ofence after police took her grandfather to hospital. She
talked with her father and he asked her about the incident
and who had assaulted the deceased.
12] PW-4 has not attributed any overt-act to accused No.2.
According to PW-3, accused No.2 assaulted the deceased on
his abdomen and arms by knife. However, from the cross-
examination of PW-3, the said fact in the evidence of PW-3
appears to be omission.
13] According to PW-11 Ramji Narayan Makwana, who was
then working as ASI at Vanakbara police outpost under Diu
Police Station, after receipt of information in relation to the
incident, he reached to the place of incident. The deceased
was lying there in injured condition. He sent the deceased in a
police van for medical treatment.
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14] In the cross-examination conducted on behalf of the
accused, PW-11 has admitted that many people had gathered
at the place of incident. He made enquiry with the said
persons about the names of the assailants and he was told
that the deceased was assaulted by two unknown persons. It
appears from the evidence of PW-11 that even he made
inquiry with PW-3, the wife of the deceased and she did not
disclose to him that accused Nos.1 and 2 assaulted to her
husband.
15] According to PW-2 Raja Bava, the son of the deceased at
about 5.20 p.m., he received information while he was at his
work place that accused Nos.1 and 2 came to his house and
assaulted his father with knives. He along with his friend
Jitubhai went to Vanakbara Police outpost and informed the
Police Constable Daud that the accused had assaulted his
father. However, according to PW-11, when he reached to
Vanakbara police outpost, Constable Daud was present there.
Constable Daud disclosed to him about the incident. He
further disclosed to him that PW-2 Raja Bava had come to
outpost and told him that somebody had assaulted to his
father.
16] PW-2 also cannot be believed, in view of the evidence of
PW-4. According to PW-2 at the time of incident he was at his
work place. After receiving information about the incident he
went to Vanakbara police outpost to lodge the report and
from there he came to place of incident. PW-4 has admitted
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that when her father came to the place of incident, he asked
her about the incident and who had assaulted the deceased.
Thus the version of PW-2 that he received information that
accused Nos.1 and 2 assaulted to his father and accordingly,
he disclosed to Constable Daud cannot be accepted.
17] The witnesses have denied that the entire incident took
place inside the house. The spot panchanama at Exhibit-38
shows that on left side of the house of the deceased, there is
house of one Rama Bava and in front side, there is house of
Bhagwan Laxman. However, no independent witnesses has
been examined. On the contrary, according to PW-11, the
persons who had gathered at the place of incident on enquiry
disclosed to him that two unknown persons had assaulted the
deceased.
18] PW-3 has admitted that the people used to call the
deceased as witchcraft expert and because of that there was
enmity of the some persons with the deceased. The possibility
of involvement of some other persons in the alleged crime
therefore cannot be ruled out. Considering overall facts and
circumstances of the case, no interference is called for in the
impugned judgment and order. In the result, the following
order is passed.
ORDER
Criminal Appeal stands dismissed.
(N.R. BORKAR, J.) (SMT. SADHANA S. JADHAV, J.)
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