Rambhau Baban Marne And Ors vs State Of Maharashtra And Anr
2021 Latest Caselaw 2878 Bom

Rane                             1/14           Appeal-248/1998

                                                     12.02.2021


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO. 248/1998

1. Rambhau Baban Marne

2. Kondiba Mahipati Dighe,

3. Kondiba Dagadu Marne,

1 to 3 aged : 41, 74 and

74 respectively, all agriculturists

residing at Village-Bhode,

Taluka-Mulshi, District-Pune              ....Appellants

                                          (Original accused

                                      no.1 to 3 respectively)

       V/s.



1. State of Maharashtra

2. Smt. Parubai Nathuram Shinde

  Adult, Occupation :Agriculturist,

  Residing at : Village-Watunde,

  Taluka-Mulshi, District-Pune            .....Respondents
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Ms. Devyani Kulkarni, appointed Advocate for the

appellants.

Mr. R.M. Pethe, APP for State.



                        CORAM :                SANDEEP K. SHINDE, J.

                        Reserved on :          Tuesday, 2        February, 2021.
                                                            nd



                        Pronounced on :        Friday, 12        February, 2021.
                                                            th




JUDGMENT :

1. Aggrieved, by conviction recorded under

Section 323 read with Section 34 of the Indian Penal

Code and sentence to suffer rigorous imprisonment for

one year, accused nos.1, 2 and 3 in Sessions Case

No. 296/1994, have preferred this Appeal.

2. Prosecution's case in brief is, Nathuram

Dondiram Shinde (deceased) was Police Patil of

Village-Vatunde; whereas, Baban Marne (accused no.4)

was Police Patil of Village-Ghodegaon. Baban was Rane 3/14 Appeal-248/1998

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not continued as Police Patil of Village-Ghodegaon st and thus, Tahsildar, vide order dated 21 May, 1993

directed Nathuram Shinde (deceased), to take over

additional charge of Police Patil for Village-

Ghodegaon, for two months. Thus Nathuram, was

holding additional charge of Police Patil for Village-

Ghodegaon since May, 1993, besides, regular charge of

Village-Vatunde. Accused nos.2 and 3, Kondiba Dighe

and Kondiba Marne, both residents of Village-

Ghodegaon, had approached Nathuram to help them

to get 7/12 extracts of their lands and as such in the th morning hours of 6 June, 1994, accused nos.2 and 3

proceeded to the office of the Talathi (Revenue

Officer), Village-Kharawade. It is unfolded in the

evidence that, Nathuram (deceased) with accused

nos.2 and 3 had been to the office of Talathi and

after completing the work, they left the office at

around 3:00 p.m. Mr. Holkar, Talathi was examined

as P.W.6, who fortified this fact. Prosecution Witness Rane 4/14 Appeal-248/1998

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No.7, Kotwal of Village-Vatunde and the Talathi of

another Village-Javalgaon, had also seen the deceased

in the company of the accused nos.2 and 3 in the

office of the Talathi. It appears from the evidence

that, in the Talathi's office, Baban Babaji Marne-

accused no.4, met Nathuram Shinde and enquired

about additional charge of Police Patil for Village-

Ghodegaon. Prosecution would contend that, accused

no.4 was dejected since his charge of Police Patil of

Village-Ghodegaon, was given to Nathuram Shinde

and thus was harbouring grudge against him.

Herein, Rambhau Baban Marne-accused no.1 is the

son of Baban Babaji Marne.

3. Evidence discloses that, Nathuram while

returning to the village, on the way, was assaulted

by the accused by fist and kick-blows and the

incident was seen by Dattatray Mankar-P.W.2, a

resident of Village-Vatunde. In the late evening of Rane 5/14 Appeal-248/1998

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th 6 June, 1994, Dattatray informed the incident to

Parubai (wife of Nathuram), P.W.No.1. It appears,

soon thereafter, Parubai alongwith Sambhaji Mankar,

Kalu Bhalekar (Villagers) and her daughter-Sangita,

reached the place of the incident, where she found

her husband was lying unconscious on the road in

naked condition. She brought Nathuram to home

with the help of the Sambhaji Mankar and Kalu

Bhalekar. Nathuram could not be hospitalised or

treated for want of facility, but fortunately, he th regained unconsciousness in the early morning of 7

June, 1994 when he told Parubhai and his daughter,

the incident of assault on him by the accused.

Parubai, thereafter made efforts to hospitalise him

but on the way, Nathuram died, whereafter she

lodged complaint and crime came to be registered

under Sections 302, 323, 326 of the Indian Penal

Code.

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4.        The   learned    trial     Court,    framed       charge

under Section 302 read with Section 34 of the Indian

Penal Code and Section 302 read with Section 109 of

the Indian Penal Code.

th

5. That vide judgment and order dated 13

December 1997, learned Additional Sessions Judge,

Pune acquitted accused no.4-Baban Babaji Marne of

all the offences. The appellants-accused nos.1 to 3

were acquitted of the offence punishable under Section

302 of the Indian Penal Code but, convicted for the

offence punishable under Section 323 read with

Section 34 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for one year and fine of

Rs.1,000/- with default stipulation.

6. It is against the aforesaid conviction and

sentence, accused nos.1, 2 and 3 have preferred this

Appeal.

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7.          It     may      be        noted       that,       State        has   not

preferred    Appeal      against            the      order,        acquitting    the

accused of the offence punishable under Section 302

of the Indian Penal Code.

8. I have perused the evidence with the able

assistance of the Appointed Counsel, Ms. Kulkarni, for

the appellants and learned APP for the State.

9. Before adverting to the arguments of the

respective Counsel, it may be stated that, key

witnesses, Narayan Kalbhor (P.W.4), Kotwal of

Village-Vatunde; Holkar-Talathi (P.W.7) of Village

Vatunde and Baban Shinde (P.W.8) turned hostile.

10. Indisputably, the incident of assault was

neither seen by Parubai nor by her daughters.

Dattatray Mankar, P.W.2 claims, he had seen the

accused assaulting the deceased. On close scrutiny of

the evidence of the sole eye witness, in my view, Rane 8/14 Appeal-248/1998

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his evidence is not trust worthy. One of the reasons

is that, the evidence discloses material inconsistencies

in the testimonies of the prosecution witnesses

especially, as to who, had made the assault.

Dattatray Mankar, testified that Nathuram was

assaulted by accused no.1, accused no.2 and Ankush

Halande (absconding accused); whereas, Parubai said

Dattatray Mankar, told her that accused no.1,

Sarpanch of Village-Monde assaulted Nathuram. In

context of this evidence, Parubai deposed, Holkar

(P.W.6), Talathi of Village-Vatunde told her accused

nos.1, 2 and 3 assaulted her husband; Whereas,

according to Parubai and her daughter (P.W.3),

Nathuram, told them that accused nos.1, 2 and 3,

assaulted him. It may be stated, accused nos.2 and

3, both were 70 year old persons at the relevant time

and were on visiting terms with the deceased. Infact,

accused no.3 is the relative of Nathuram. In

consideration of the evidence, it is to be held that Rane 9/14 Appeal-248/1998

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prosecution was, 'uncertain' as to who were the

assailants. However, amongst witnesses, though

Dattatray Mankar, P.W.2 claims to be the eye-

witness, he testified accused nos.1, 3 and Ankush

Halande, assaulted the deceased. This witness,

therefore absolves accused no.2. It is interesting to

note that, neither the Investigating Officer nor, the

other witness (except P.W.2), said about Ankush

Halande. It appears, the learned trial Court

convicted the appellant-accused under Section 323

believing the evidence of Narayan Kalbhor, Ashok

Holkar and Baban Shinde, all Revenue Officers, who

had seen the deceased leaving the office on the day

of the incident alongwith accused nos.2 and 3, as

were "last seen together".

11. At any rate, scrutiny of the evidence of

P.W.2 and of other witnesses, also renders the

prosecution's case debatable. In other words, the Rane 10/14 Appeal-248/1998

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prosecution has not placed correct facts of occurrence

of the incident before the Court, and I say so, for

more than one reasons. Foremost, the evidence lacks

inherent consistency, as to who were the assailants.

P.W.2-Dattatray Mankar deposed, by the time he

reached the spot, Nathuram was found and seen lying

unconscious in naked state. However, in the next

breath, he said, he had seen accused nos.1 and 3

were assaulting Nathuram. Moreso, he testified that,

after informing the incident to Parubai, he had

accompanied her to the spot where Nathuram was

lying unconscious. However, evidence of Parubai is

otherwise. She was very precise and stated that,

she was accompanied by Sambhaji Mankar (eventually

the brother of P.W.2), Kalu Bhalekar and her

daughter. Indisputably, deceased Nathuram was th brought home at around 8:00-9:00 p.m. on 6 June

1994, but there is no evidence on record to suggest

that, any efforts were made either by Parubai or by Rane 11/14 Appeal-248/1998

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other villagers, to seek medical help. Infact, Parubai,

stated that, on the fateful night, Dattatray Mankar-

(P.W.2) had been to her house, but this fact was

not disclosed by Mankar. Thus, in my view, evidence

of Mankar (P.W.2) was not credible. Be that as it

may, even Parubai's evidence is uncertain. It is

because, her husband was the Police Patil and thus

it was unlikely that, Parubai would not inform the

incident to the Police. This conduct of Parubai,

raises reasonable suspicion which leads me to hold

that prosecution's story lacks rationality. Another

circumstance which fortifies, my view is that, on the

next day after lodging the complaint, a spot

panchanama was drawn, wherefrom the Police have

recovered the 7/12 extracts in relation to lands of

accused nos.2 and 3. Prosecution's case is that,

accused nos.2 and 3 had sought the help of the

deceased for their work in the office of the Talathi

concerning their lands. Evidence of the Talathi, Rane 12/14 Appeal-248/1998

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P.W.6, shows he handed over the land extracts to

them, whereafter they left the office together.

Prosecution, further alleged that, accused nos.2, 3 and

other accused, assaulted the deceased on the way

while returning home. However, it is surprising, that

the revenue extracts relating the lands of accused

nos.2 and 3 were found lying on the spot of the

incident till the panchanama was drawn on the next th day i.e. on 7 June, 1994. It is far-fetched, because,

assuming accused nos.2 and 3 had assaulted the

deceased, as a natural conduct they would not leave

the papers relating to their lands with the deceased

or atleast at the place of the incident. Next

circumstance, which also renders the prosecution's

case doubtful is, the recovery of clothes of the

deceased. Prosecution's case is that, Nathuram was

lying in naked condition and he was brought home

by his wife and two villagers in the evening/night of th 6 June. It is surprising or rather does not appeal Rane 13/14 Appeal-248/1998

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to a reasonable mind that, Parubai would remove her

husband without noticing his clothes lying over there.

As a natural conduct, Parubai would have collected

the clothes and thereafter brought Nathuram to home.

However, prosecution's case proceeds to say that, on

the next day while drawing the panchanama, they

found torn clothes of the deceased, which had blood

stains.

12. As such, close scrutiny of prosecution's

evidence, leads me to hold that, prosecution has not

proved beyond the reasonable doubt that, the

appellant-accused caused homicidal death of

Nathuram.

13. In consideration of the facts of the case and

evidence and for the reasons stated above, Appeal is

allowed and impugned conviction recorded in Sessions

Case No. 296/1994 by the Additional Sessions Judge, Rane 14/14 Appeal-248/1998

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Pune is set aside. Their bail bonds are cancelled

and sureties are discharged. Fine amount if paid, be

refunded to them.

14. Appeal is disposed off accordingly.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.       Date:
Sawant   2021.02.12

                                             (Sandeep K. Shinde, J.)
         15:38:58
         +0530