Subhash S/O Jagannath Reche vs State Of Mah., Thr. Pso Anjangaon ...
2021 Latest Caselaw 403 Bom

                                  1                               cr-appeal-473.20 & 689.19-1.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                         CRIMINAL APPEAL NO. 473 OF 2020
                                     WITH
                         CRIMINAL APPEAL NO. 689 OF 2019

 CRIMINAL APPEAL NO. 473 OF 2020

 The State of Maharashtra
 (Through the Police Station Officer,
 Police Station, Anjangaon Surji),                                          . . . APPELLANT
 District Amravati.

          Versus

 1.       Vijay Uttamrao Takore,
          Aged about 55 years,
          Occupation: Agriculturist,

 2.       Vinod Uttamrao Takore,
          Aged about 49 years,
          Occupation : Agriculturist,

          Both R/o. Dahigaon Recha,                                      ...RESPONDENTS
          Tq. Anjangaon Surji,
          District Amravati.
 -------------------------------------------------------------------
 Shri T.A. Mirza, APP for the Appellant.
  Shri P.V. Navlani, Advocate for the respondent
  nos.1 and 2.

 Criminal Appeal No. 689/2019

 Subhash S/o. Jagannath Reche,
 Aged 57 years, Occ. Agriculturist,
 R/o. At Dahigaon, Tah. Anjangaon Surji,                                     . . APPELLANT
 Dist. Amravati.

        Versus
 1. State of Maharashtra,
    Through its Police Station Officer,
    Anjangaon Surji, Dist.Amravati



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                                2                        cr-appeal-473.20 & 689.19-1.odt



 2. Vijay S/o. Uttamrao Takore,
     Aged 55 years, Occ. Agriculturist,
     R/o. At Dahigaon,
    Tah. Anjangaon Surji, Dist. Amravati.
 3. Vinod S/o. Uttamrao Takore,
    Aged 49 years, Occ. Agriculturist,
    R/o. At Dahigaon,                                          ...RESPONDENTS
    Tah. Anjangaon Surji, Dist. Amravati.


 Shri T.A. Mirza, APP for Appellant/State.
 Shri M.P. Kariya, Advocate for Appellant/Victim.
 Shri P. V. Navlani, Advocate for Respondent nos.2 and 3.


                           CORAM :   Z. A. HAQ AND
                                     AMIT B. BORKAR, JJ.

DATED : 08.01.2021.

ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :

1. The appellant in Criminal Appeal No.473/2020 is the State of

Maharashtra. The appellant in Criminal Appeal No. 689/2019 is the

Victim. Both the appeals take exception to the judgment and order

dated 07.12.2018 passed by the learned Additional Sessions Judge-1,

Achalpur in Sessions Trial No.66 of 2015, thereby the accused Nos.1

and 2 are acquitted of offence punishable under Section 302 read with

Section 34 of the Indian Penal Code.

2. The case of the prosecution in nutshell is as under:

On 23.08.2014 at 7.30 a.m. there was quarrel between

Informant's son - Akshay Reche and accused nos.1 and 2 on the issue

3 cr-appeal-473.20 & 689.19-1.odt

of watering of crops in the field. The accused no.1 was armed with

iron rod and the accused no.2 was armed with stick. Both the accused

assaulted Akshay , son of Subhash Reche (PW 1), on his head by iron

rod and stick, due to which he fell down. Both the accused went away

from the field of Subhash Reche (PW 1). Subhash Reche (PW 1) -

admitted his son Akshay Reche to Rural Hospital, Anjangaon Surji. On

the same day, i.e. 23.08.2014 at about 17.45 hours Head Constable of

Frezarpura Police Station, Amravati recorded statement of Informant -

Subhash Reche (PW 1).

On 27.08.2014, statement of Subhash Reche (PW 1) was

recorded at Police Station, Anjangaon Surji, regarding the incident

occurred on 23.08.2014. On his statement dated 27.08.2014, an

offence vide Crime No.166 of 2014 for offence punishable under

Section 307 read with Section 34 of the Indian Penal Code was

registered with the Police Station, Anjangaon Surji. On 28.08.2014,

Akshay son of the informant died, while undergoing treatment at

Suyash Hospital, Amravati. After the death of Akshay Reche, an offence

punishable under Section 307 of the Indian Penal Code was converted

into the offence under Section 302 read with Section 34 of the Indian

Penal Code.

3. During the course of investigation, the Investigating Officer

(PW 10) recorded statements of material witnesses. He arrested the

4 cr-appeal-473.20 & 689.19-1.odt

accused no.1, seized his clothes and the clothes of deceased Akshay.

During interrogation of the accused no.1, he made disclosure statement

and produced crowbar from his field, which was recovered under

panchanama. The Investigating Officer, after carrying out the

investigation filed charge-sheet in the Court of Judicial Magistrate First

Class, Anjangaon Surji. As the offence punishable under Section 302 of

the Indian Penal Code is exclusively triable by the Court of Sessions, the

learned Judicial Magistrate First Class, Anjangaon Surji, committed the

case to the Sessions Court at Achalpur for its disposal, according to law.

Charges were framed against the accused persons. Both the accused

pleaded not guilty and claimed to be tried. The defence of the accused

was of denial and false implication. It is also the defence of the accused

that Subhash Reche (PW 1) assaulted the accused and during the

assault, crowbar of Subhash Reche (PW 1) hit the head of deceased

Akshay, as result of which he died. The prosecution, in support of their

case, examined as many as 10 witnesses. In defence, no witness was

examined.

4. After recording the evidence and after hearing both sides,

the Trial Court acquitted both the accused, as the prosecution failed to

prove the case beyond reasonable doubt. Hence, this appeal.

5 cr-appeal-473.20 & 689.19-1.odt

5. We have heard Shri T.A. Mirza, learned Additional Public

Prosecutor for the appellant, Shri M.P. Kariya, learned Advocate for the

appellant-Victim and Shri P. V. Navlani, learned Advocate for the

respondent nos.2 and 3, at considerable length. We have perused the

evidence of witnesses examined by the prosecution, material exhibits

tendered and proved by the prosecution, statements of the respondents

recorded under Section 313 of the Code of Criminal Procedure and the

impugned judgment and order.

6. To prove the case, the prosecution examined two eye-

witnesses, who are Subhash Reche (PW 1) - father of deceased and

Vijay Sabale (PW 3). Subhash Reche (PW 1) in his evidence described

the assault on the deceased Akshay. He stated that the accused no.1

Vijay caught hold of Akshay and the accused no.2 - Vinod assaulted him

by means of crowbar on his head. Subhash Reche (PW 1) rushed to

rescue Akshay, however, the accused were not listening. Therefore,

Subhash Reche (PW 1) picked up bamboo stick and assaulted the

accused no.1 by means of bamboo stick after which the accused nos.1

and 2 went to their field. Akshay became unconscious.

7. Vijaysen Sable (PW 3) in his evidence stated that on

23.08.2014 at about 7.30 a.m., he had been to the field of his nephew -

6 cr-appeal-473.20 & 689.19-1.odt

Nandu Sabale and while going to the field he had talked to Subhash

(PW 1) whose field is adjacent to field of Nandu Sabale. While he was

taking round of the field of Subhash, he heard voice of quarrel from the

dhura of Shrikant Reche. It was quarrel between the accused no. 1

Vijay and his brother Akshay. The accused no.1 - Vijay had caught hold

of Akshay from behind and the accused no.2 - Vinod had dealt blow of

crowbar on his head. He had called Subhash Reche (PW 1), who was

coming from the same direction after releasing water.

8. There is serious dispute between the parties as to which

report out of the two i.e. report dated 23.8.2014 and report dated

27.8.2014 fulfills the ingredients of the First Information Report within

the meaning of Section 154 of the Code of Criminal Procedure. The

statement at Ex.45 of Subhash Reche (PW 1) was recorded by

Frezarpura Police Station, Amravati on 23.08.2014. The said statement

discloses the commission of cognizable offence as well as the name of

assailants. Therefore, statement at Exhibit 45 will have to be treated as

First Information Report within the meaning of Section 154 of the Code

of Criminal Procedure. During the investigation, a formal report was

given by Subhash Reche (PW 1) on 27.08.2014, which will have to be

treated as statement under Section 161 of the Code of Criminal

Procedure. Thus, statement of Subhash Reche (PW 1) recorded on

7 cr-appeal-473.20 & 689.19-1.odt

23.8.2014 by Frezapura Police Station, Amravati can be used to

corroborate or contradict the evidence of Subhash Reche (PW 1).

9. As per the First Information Report (Ex.45), after

arguments both the accused went to the field and returned with

weapons i.e. crowbar and stick; whereas as per the evidence of Subhash

Reche (PW 1), the accused came to the field of Subhash Reche (PW 1)

alongwith crowbar. In the report at Ex.45, it is stated that both the

accused assaulted Akshay on his head by means of iron rod and stick,

due to which Akshay fell down. But, as per the evidence before the

Court, there was only one weapon used in the commission of offence

i.e. crowbar by the accused no.2. It is stated in the evidence by Subhash

Reche (PW 1) that the accused no.1 caught hold of Akshay and the

accused no.2 assaulted him; whereas as per F.I.R., the accused no.1 -

Vijay had iron rod and the accused no.2 Vinod had stick with him.

Thus, the use of weapons by the accused also varies in the F.I.R.

(Ex.45) and the evidence before the Court. This is material

inconsistency in the evidence and the F.I.R., which needs to be

considered while appreciating the evidence.

10. Apart from the above material inconsistency, there is

material discrepancies in the evidence of Subhash Reche (PW 1) and

Vijay Sen (PW 3). As per the evidence of Vijaysen Sable (PW 3),

8 cr-appeal-473.20 & 689.19-1.odt

Subhash Reche (PW 1) was not present at the time of actual incident

and he came while the incident was going on or thereafter. Therefore,

there is no question of Subhash Reche (PW 1) picking up bamboo stick

and assaulting the accused no.1. Apart from the said fact, the statement

of Vijaysen (PW 3) was recorded by the Police after 20 days of the

incident. There is no explanation as to why the Investigating Officer

belatedly recorded statement of this material witness.

11. Apart from the discrepancies in the evidence of eye-

witnesses, the medical evidence is not supporting the case of the

prosecution. Dr. Tirupati Rathod (PW 7), who attended the deceased

Akshay at Rural Hospital, Anjangaon Surji, stated that there was only

one wound on the body of Akshay. As per the testimony of Subhash

Reche (PW 1), the accused no.2 dealt blow of crowbar on the head of

Akshay. Subhash Reche (PW 1) had not stated in respect of second or

third blow by iron rod on the head of the deceased Akshay. Dr.

Chetanya Kulkarni (PW 8), who conducted autopsy on the dead body

of Akshay on 28.09.2014, found three injuries on the head of deceased

Akshay. The prosecution has failed to explain other two injuries

sustained by deceased Akshay.

12. To sum up the discussion of the material produced by the

prosecution, it appears that the evidence of eye-witnesses is not

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trustworthy due to inconsistencies and material improvements. There

are material discrepancies in the oral evidence of Subhash Reche

(PW 1) and his report (Ex.45). The weapon in the hand of the accused

no.2, as per Ex.45 is stick; whereas it is stated before the Court by

Subhash (PW1) that the accused no.2 assaulted deceased Akshay by

means of crowbar. The medical evidence is not consistent with the

nature of injuries.

13. Taking into consideration overall facts and circumstances

brought on record by the prosecution, we are of the view that the

prosecution has failed to prove beyond doubt that the accused nos.1

and 2 with intention and in furtherance of their common object had

caused injury to deceased Akshay by using crowbar and stick and

thereby committed his murder.

14. Pursuant to the above discussion, we are satisfied that the

instant case is a fit case, in which the respondents deserve benefit of

doubt and we propose giving them the benefit of that doubt.

15. It is settled law that in case of an appeal against acquittal,

the Appellate Court can interfere only if the judgment of the Trial Court

is perverse or manifestly illegal. The Hon'ble Supreme Court has laid

down that if reasoning given by the Trial Court is plausible, simply

10 cr-appeal-473.20 & 689.19-1.odt

because the different line of reasoning can be given or adopted, the

Appellate Court should not interfere in an appeal against acquittal.

Keeping in view the settled legal position, we have examined the

judgment of the Trial Court. We find that the reasoning given by the

learned Sessions Judge is acceptable and convincing. The judgment of

the Trial Court cannot be said to be perverse. Equally, it can be said that

the Trial Court has not committed any manifest illegality.

16. Hence, the following order:

(i) Criminal Appeal Nos.473/2020 and Criminal Appeal

No.689/2019 are dismissed.

(ii) Bail bonds of the respondents stand cancelled.

(iii) Muddemal properties be disposed of as per the directions of

the Sessions Court, Achalpur.

Both Criminal Appeals are disposed in the above terms.

                  JUDGE                                    JUDGE

 ambulkar