State Of Mah. Thr. Pso Arjuni/Mor ... vs Latish S/O Omprakash Gajbhiyie
2021 Latest Caselaw 8693 Bom

                                                  1           Cr.APPA No.238.21 &
                                                              Cri.Appeal St.No.2285-21-J

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

              CRIMINAL APPLICATION (APPA) NO.238 OF 2021.
                                 AND
                 CRIMINAL APPEAL (ST.) NO.2285 OF 2021.

  The State of Maharashtra
  through Police Station Officer,
  Arjuni/Mor, Tah. Arjuni/Mor,
  Dist. Gondia.                                         ....            APPELLANT

                               ------ VERSUS ------

  1.     Latish S/o. Omprakash Gajbhiye,
         Aged about 30 years,
         Occu : Agriculturist,
         R/o. Puyar, Tahl Lakhandur,
         Dist. Bhandara.

  2.     Mehnath S/o. Jaypal Gajbhiye,
         Aged about 23 years,
         Occupation : Agriculturist,
         R/o. Kanhalgaon, Tah. Lakhandur,
         Dist. Bhandara.

  3.     Sajan S/o. Gunwant Meshram,
         Aged about 27 years,
         Occupation : Agriculturist,
         R/o. Panchshil Ward No.6, Durgapur,
         Dist. Chandrapur.

  4.     Omprakash Asaram Gajbhiye,
         Aged about 57 years,
         Occupation : Agriculturist,
         R/o. Puyar, Tah. Lakhandur, Dist. Bhandara,

  5.     Chandrakant @ Zhakesh Jaypal Gajbhiye,
         Aged about 30 years,
         Occupation : Agriculturist,
         R/o. Kanhalgaon, Tah. Lakhandur,
         Dist. Bhandara.

  6.     Rajesh @ Raju S/o. Baburao Sukhdeve,
         Aged about 38 years,
         Occupation : Agriculturist,
         R/o. Madgaon, Madighat, Tah.
         Lakhandur, Dist. Bhandara.         ....                  RESPONDENTS


::: Uploaded on - 07/07/2021                          ::: Downloaded on - 19/09/2021 06:50:12 :::
                                                                          2                   Cr.APPA No.238.21 &
                                                                                             Cri.Appeal St.No.2285-21-J

  ____________________________________________________________
  Shri S. S. Doifode, A.P.P. for the appellant/State.
  Shri R. B. Gaikwad, Advocate for the respondents.
  _________________________________________________________________________________________________________________________________



                         CORAM : V. M. DESHPANDE AND
                                                 AMIT B. BORKAR, JJ.

DATE : 02.07.2021.

ORAL JUDGMENT : [PER: AMIT B. BORKAR, J.]

1. The appellant has come up in appeal before us

aggrieved by the judgment and order dated 10.10.2019 passed by

the learned Sessions Judge, Gondia in Sessions Case No.32/2015

acquitting respondents of the charge for the offences under Sections

302 read with Section 120B, 201, 203 of the Indian Penal Code.

2. The prosecution case briefly stated runs as under :

Rajesh Gopinath Landge (PW-1) had filed complaint

with Police Station Arjuni-Morgaon on 09.03.2015 stating that

Vijesh is his younger brother and Mangesh is his elder brother. They

were residing together at Puyar, Tah. Lakhandur, District Bhandara

alongwith their mother Shantabai. One Latish aged about 28 years

is their neighbour. Vijesh was suspecting that neighbour Latish was

having illicit relationship with his wife Vidya and therefore, there

were quarrel between the family members of Vijesh and Latish.

There were complaints filed against each other by Vijesh and Latish.

On 08.03.2015, Vijesh had gone to Siroli-Mahagaon to watch drama

on his motorcycle. On 09.03.2015 at 3.30 a.m., Police Patil and her

Cri.Appeal St.No.2285-21-J

husband Arvind Borkar came to the house of Rajesh (PW-1) and

informed him that Vijesh has assaulted Latish. In the morning at

around 6.30 a.m., Rajesh (PW-1) and his brother Mangesh went

towards Itkheda area and saw dead body of his brother Vijesh lying

there with head injuries. On an enquiry by Rajesh (PW-1) it was

revealed that Latish had killed his brother Vijesh by pouring chilly

powder and giving blows of stick. On 08.03.2015, when API Anil

Kumbhare (PW-10) was on duty, Latish came at the Police Station

and informed him that he had killed Vijesh by pouring chilly powder

on his face and by using bamboo stick. The accused Latish was

therefore arrested and brought to the Police Station Arjuni-

Morgaon. First Information Report No.15/2015 was registered

against Latish.

3. The Investigating Officer Rajesh Vijay Gajjal (PW-18)

started investigation and inspected spot of incident, recorded

statements of witnesses, seized clothes of deceased. On 18.03.2015

Latish gave disclosure statement and accordingly, stick was

recovered. After completion of investigation, charge-sheet was filed

against all the accused and the case was committed to the Sessions

Court as an offence punishable under Section 302 of the Indian

Penal Code is exclusively triable by the Court of Sessions. The

charges were framed and explained to the accused in vernacular

which they denied. The defence of the accused is of total denial and

Cri.Appeal St.No.2285-21-J

false implication. During the trial, the prosecution in all examined

18 witnesses. The defence did not examine any witness. After

recording evidence adduced by the prosecution and after hearing

the learned Advocate for the parties, the learned Trial Judge

acquitted the respondents by impugned judgment. Hence, this

appeal by State of Maharashtra.

4. We have heard Shri S. S. Doifode, learned Additional

Public Prosecutor for the appellant/State and Shri R. B. Gaikwad

learned Advocate for the respondents.

5. We have perused depositions of prosecution witnesses;

material exhibits tendered and proved by the prosecution;

statements of respondents recorded under Section 313 of the Code

of Criminal Procedure and the impugned judgment.

6. At the outset we have reminded ourselves that we are

seized of the matter in an appeal against acquittal wherein the

settled law is that, the Appellate Court interferes only if either the

appreciation of evidence is grossly unreasonable and acquittal has

been on account of manifest illegality resulting in failure of justice.

Bearing in mind the above norms, we have scrutinized the

impugned judgment.

Cri.Appeal St.No.2285-21-J

7. We would first like to begin with ocular evidence of

Vilas Suryawanshi (PW-2) and Dr. Amit Gulabrao Chede (PW-8)

who are examined by prosecution to prove that the death of the

deceased was homicidal death. Dr. Chede (PW-8) has not deposed

that the injuries to deceased were caused by a particular weapon or

those injuries are sufficient to cause death in ordinary course of

nature. Vilas (PW-2) has also not deposed about homicidal death of

deceased. We therefore, concur with the conclusion of the learned

Trial Judge that the prosecution has failed to prove homicidal death

of deceased Vijesh. Digambar Talmale (PW-6) and Anil Kumbhare

(PW-10) have been examined to prove confessional statement by

accused Latish. The confession made before Digambar Talmale

(PW-6) and Anil Kumbhare (PW-10) is hit by Section 25 of the

Indian Evidence Act and therefore, is inadmissible in evidence.

8. Rajendra Hari Meshram (PW-11) who is alleged eye

witness has not supported the case of the prosecution, though it is

the case of prosecution that Rajendra Meshram (PW-11) was

accompanying deceased on motorcycle when the assault on the

deceased took place. The evidence of Reman Biharilal Mishra (PW-

14) is not helpful to the prosecution on the point of pouring of

chilly by the accused as Dr. Chede (PW-8) has not proved the said

fact. Shalikram Motiram Hatzade (PW-3) has not supported the

case of the prosecution on the point of recovery of stick as he stated

Cri.Appeal St.No.2285-21-J

that he himself, accused, Police Patil and Police went to the canal at

Itkheda and one flowing stick on the water was seized. The

evidence of Shanta Landge (PW-4), mother of deceased is also not

helpful to the prosecution as she has not stated anything about the

incident dated 08.03.2015 or 09.03.2015. Therefore possibility

cannot be ruled out that deceased had fallen from the motorcycle

after consuming liquor and sustained injuries as he was riding a

motorcycle during the night, when there was heavy rain and hail

storming.

9. Considering the entire evidence led by the prosecution,

we are of the opinion that the prosecution has failed to prove death

of Vijesh as homicidal death. The prosecution has failed to prove by

cogent and sufficient evidence that accused Nos. 1 to 6 have had

conspired to commit murder of deceased Vijesh by using stick

recovered at the instance of the accused. The prosecution has failed

to prove by direct evidence that Latish had given blows with stick

and committed murder of Vijesh. For the said reasons we are

satisfied that the ocular account in the instant case is unworthy of

belief. We have gone through the evidence of all the witnesses and

we are constrained to observed that we do not find that it inspires

confidence. In our view, the Trial Court acted correctly in rejecting

ocular account.

Cri.Appeal St.No.2285-21-J

10. As mentioned earlier, it is settled law that in case of an

appeal against acquittal, the High Court can interfere only if the

judgment of the Trial Court is perverse or manifestly illegal. Keeping

in mind the settled legal position mentioned above, we have

examined the judgment of Trial Court. We are of the view that the

reasonings given by the learned Sessions Judge are acceptable and

convincing. The judgment and order 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. There are no substantial or

compelling reason to interfere in this appeal as the view taken by

the Trial Court is possible view. Hence, the Criminal Appeal is

dismissed. The Criminal Application (APPA) No. 238/2021 is also

stand disposed of accordingly.

                                          JUDGE                         JUDGE


RGurnule