Umakant S/O Vasant Kumbhare ... vs The State Of Maharashtra
2022 Latest Caselaw 10762 Bom

                                    (1)

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                BENCH AT AURANGABAD

                CRIMINAL APPEAL NO. 928 OF 2015

Umakant S/o Vasant Kumbhare (Borikar),
Age. 47 years,
R/o. Motinagar, Latur,
Tal. & District Latur.                 ...   APPELLANT
                                  (Orig. Accused No.1)

               VERSUS

The State of Maharashtra
Through Police Station Officer,
Police Station Latur (Rural),
Tal. And District Latur.                      ...  Respondent
                                              (Orig. Complainant)


Mr. Abhay D. Ostwal, Advocate for the appellant
Mr. R. B. Bagul, APP for the respondent/State

                               CORAM : R. G. AVACHAT &
                                       R. M. JOSHI, JJ.

RESERVED ON : 10th OCTOBER, 2022 PRONOUNCED ON: 17th OCTOBER, 2022

JUDGMENT (PER- R. M. JOSHI, J.):-

1. Appellant (original Accused) in Sessions Case No. 4

of 2013 and 118 of 2013 has taken exception to judgment and

order dated 16th November, 2015 passed by Additional

Sessions Judge, Latur, convicting him for offence punishable

under Sections 302, 143, 147, 148 read with Section 149 of

the Indian Penal Code, by preferring this appeal under Section

374 of the Code of Criminal Procedure.

2. The appellant along with 19 other persons were

charged for the offences punishable under Sections 143, 147,

148, 302, 120B read with 149 of the Indian Penal Code and

under Section 135 of the Bombay Police Act. They were

subjected to the trial on the basis of case of the prosecution

that there was a dispute between deceased Dyanoba @ Babu

and Vasant-accused No. 17 in respect of bund between their

field. Vasant had also filed application for correction in revenue

record in respect of the said land. There were complaints made

by them against each other with the concerned police station.

On 28th June, 2012 between 03.00 to 04.00 p.m. when

deceased Babu was sowing his filed, appellant-accused No.1

along with his associates formed unlawful assembly, picked up

quarrel with deceased Babu on account of removing weeds and

assaulted Babu with axe and wooden logs on his head and

back. In the said assault Babu sustained severe injuries. After

the incident neighbors and villagers came to the spot. Vishnu

and Macchindra took Babu on motorcycle up to Bori and from

there Babu was taken to the government hospital in a pickup

vehicle. Mallikarjun-PW-1 who is brother of Babu lodged report

Exhibit 138 with Latur Rural Police Station and initially offence

came to be registered under Sections 307, 143, 147, 148, 149

of the Indian Penal Code and under Section 135 of the Bombay

Police Act. Attempt was made by Police to record statement of

Babu however he was found unfit to give statement. On the

same day at around 9.50 p.m. Babu died in hospital.

Thereafter offence punishable under Section 302 of the Indian

Penal Code came to be added against the accused.

Investigation was done and on completion of investigation

charge-sheet came to be filed before J.M.F.C. who in turn

committed the case for trial before the Sessions Court. Initially

trial commenced against Accused Nos. 1 to 16 and after

subsequent arrest of Accused Nos. 17 to 20, supplementary

charge-sheet was filed against them and both charge-sheets

were clubbed together. On conclusion of trial except Appellant

all other accused persons were acquitted.

(SUBMISSIONS)

3. At the outset learned counsel for the appellant

submitted that charge framed by the learned Trial Court is

defective as no particulars were mentioned therein specifying

his role in the incident of assault. It is submitted that due to

this appellant did not get fair opportunity to defend himself

and on this ground judgment in question does not sustain.

Learned counsel Mr. Ostwal for the appellant submitted that

there is no evidence on record to show that the appellant had

any dispute or enmity with deceased in order to provide

motive for him to commit offence in question. It is submitted

that admissions given by the witnesses particularly Vijaymala

(PW-9) and Mallikarjun (PW-1) show that the land belonging to

appellant is not adjacent to the land of deceased in order to

have any dispute between them over the bund. It is submitted

that prosecution witness Vijaymala (PW-9) is a got up witness

as her statement is recorded after about 80 days of the

occurrence of the incident and the delay caused in recording

the statement is not satisfactorily explained by the

prosecution. It is submitted that from cross-examination of

this witness it is abundantly clear that the witness as well as

her daughter were not present when the incident of assault

has taken place. According to him learned Trial Court has

refused to believe version of this witness and has also

observed that her presence at the spot at the time of incident

is doubtful. Hence, according to him testimony of this witness

could not have been made basis for conviction of the

appellant. By referring to the testimonies of Mallikarjun (PW-

1), Ankush (PW-2), Macchindra (PW-3) and Mangesh (PW-5),

it is submitted that though these witnesses claimed that

deceased after the incident of assault as well as while he was

being treated in the hospital has given oral declaration to them

about appellant having assaulted him but their testimonies are

not consistent. The cross-examination of these witnesses

according to him indicates that while Babu was being taken to

the hospital he was in unconscious state and therefore,

question of he making statement to these witnesses does not

arise. He drew attention to medical papers indicating deceased

being in semi-conscious or unconscious condition and not fit to

give statement. On the point of alleged seizure of the axe at

the instance of appellant herein is concerned, it is argued that

evidence of panch witness does not show that the axe in

question was stained with blood and was sealed at the spot. It

is also submitted that in any case when there is absolutely no

evidence on record to show that Babu was assaulted with axe

by appellant and further in absence of evidence to connect the

said weapon with the assault, the said evidence needs to be

kept out of consideration. On these amongst other

submissions, accused seeks interference in the impugned

judgment.

4. Learned APP Mr. Bagul for the respondent/State

vehemently supported the impugned judgment with

submissions that there is evidence of eye witness Vijaymala

(PW-9) who has given detailed account of the occurrence of

the incident of assault against her husband Babu by present

appellant and others and she has also assigned specific role to

him of carrying axe and causing assault on the head of the

deceased with axe. It is submitted that there is further

corroboration, to her version from the testimonies of other

witnesses to whom disclosure in made by the deceased about

the names of the assailants. According to him minor

discrepancies are required to be overlooked as the same do

not affect core evidence laid by the prosecution. He also drew

attention of the court to the evidence pertaining to the seizure

of clothes of daughter of the deceased which was stained with

blood indicating her presence at the spot of the incident and

also when the deceased was taken to the hospital. He placed

reliance on evidence of panch witness PW-11 in whose

presence appellant made statement about concealing wooden

logs and the axe in his house and pursuant to the said

statement there is a recovery of axe and logs. This according

to him is the circumstance which supports the case of the

prosecution in order to prove to guilt of the accused beyond

reasonable doubt. He further argued that merely on the

ground of delay in recording statement of wife of the deceased

her testimony cannot be disbelieved. It is submitted that since

the lady had lost her husband, it is quite natural that some

time is taken by her to come in public and to record

statement. It is also submitted that accused has taken false

plea of alibi contending that he was present in the school that

is his work place but evidence on record shows that on the

date of incident accused was on leave and therefore the said

false defence becomes additional circumstance against the

accused. With these submissions prosecution has sought

sustainment of judgment of conviction against the appellant.

CHARGE

5. It is the contention of the appellant that the charge

framed against him is defective. It is argued that there are no

particulars mentioned in the charge framed stating that he had

assaulted deceased with axe on his head and therefore, he

was unable to meet the precise charge which has caused

prejudice to him. Perusal of charge-sheet shows that the

allegation against appellant as well as co-accused was of

forming unlawful assembly and for causing assault on

deceased in prosecution of their common object. The charge

framed is inconsonance with the material available on record.

Learned counsel for the appellant was not able to show any

material on record which was not considered by learned Trial

Court while framing the charge. It is settled position of law

that merely on the ground of defective charge. Trial does not

get vitiated and it must be necessarily shown as to what

prejudice is caused to accused by non framing of the charge in

particular manner and also that it has resulted in to failure of

justice. In the instant case cross-examination conducted on

behalf of the appellant clearly indicates that after fully knowing

the charge about he allegedly assaulting deceased on his head

with axe questions were put to the witnesses and defence is

taken accordingly. In these circumstances since the appellant

was unable to show what prejudice his caused to him by

framing of the charge and as there is no failure of justice on

that count, the contention of the appellant assailing the charge

deserves no consideration.

HOMICIDAL DEATH

6. Prosecution in order to prove death of the deceased

Babu to be homicidal examined Dr. Dudde (PW-13) who had

conducted autopsy on the dead body of deceased Babu. He

specifically deposed about noticing surgical sutured wounds,

( 10 )

CLWs, contusions, abrasions i.e. in all 24 external injuries on

the dead body. Internal injuries of fracture of skull at parietal

bone and contusion under the scalp were also observed. In his

opinion the probable cause of the death was "head injury with

multiple injuries over body". The defence has not disputed the

number of injuries caused to the deceased nor it is suggested

that such injuries are possible by any other way except for

assault and that death is not homicidal. Thus, practically

defence does not dispute the fact of homicidal death of

deceased.

EVALUATION OF OCULAR EVIDENCE

7. Vijaymala (PW-9), wife of deceased is an eye

witness to the incident in which deceased was assaulted. She

deposed before the Court that on the date of incident she was

present in the field along with her daughter Kaushalya. She

further claimed to have seen appellant, his father, mother, son

and wife proceeding towards deceased and the appellant

holding axe, stick and knife held by ot hers. She also stated

about appellant giving blow of the axe on the head of

( 11 )

deceased and appellant's brother assaulting him with stick and

father with knife. She further claimed that other unknown

persons accompanied appellant assaulted her husband with

stick. She also claimed that Bogdad Patel, Macchindra

Somwanshi and other villagers came to the spot and Ankush,

Macchindra and Bogdad asked Babu about the cause of assault

and he told them that Umya i.e. appellant assaulted him.

8. Prosecution also relied upon testimony of

Mallikarjun (PW-1) informant who claimed that on the date of

incident he was cultivating his land. According to him while

Babu was taking treatment in Civil Hospital he told him that

appellant, Ramakant, Vasant and 5-6 unknown persons

assaulted him. Similarly Ankush (PW-2) claimed to have gone

to the spot after the incident of assault and saw Babu lying in

injured condition. He further claimed to have made inquiry

with Babu who in reply told him that appellant and his

companions assaulted him. Macchindra (PW-3) reached the

spot after the incident of actual assault on Babu. He is the

person who brought the injured on motor bike up to Bori and

( 12 )

from there Babu was taken to the hospital in a pick-up vehicle.

Fourth witness Mangesh (PW-5) also states that he made

inquiry with Babu and was informed that appellant and others

assaulted him.

9. In the cross-examination Vijaymala (PW-9) has

admitted that the field where they were working is at the

distance of more than half K.M. from spot where her husband

(deceased) was working. She also accepted that nobody came

at spot till incident of assaulting Babu was over. She further

went on to accept that they reached the spot of the incident

when accused brought her husband near the hut after

assaulting and when they fled away. These admissions create

serious doubt about her claim of witnessing incident in

question. The learned Trial Court has also disbelieved the

version of this witness about her presence at the spot at the

time of occurrence of the incident of assault. A specific finding

is recorded by the learned Trial Court in paragraph No. 45 to

that effect by observing that it will be unsafe to rely upon the

evidence of seizure in absence of cogent evidence establishing

( 13 )

presence of Vijaymala (PW-9) and her daughter Ahilya at the

spot at the relevant time. The learned Trial Court has further

declined to accept her testimony against accused Nos. 17 to

20.

10. Even otherwise statement of this witness is

recorded after 80 days of the incident. No doubt, delay on the

part of the investigating agency to record statement of the

witness necessarily does not lead to discardance of testimony

of such witness. However, a plausible explanation needs to be

provided for not recording statement in reasonable time. No

satisfactory explanation is forthcoming in this regard.

Moreover Ankush (PW-2) in his statement before the

Investigating Officer has stated that after his reaching to the

spot, Vijaymala and her daughter came there. Though witness

did not accept the same in his substantial evidence but

defence has proved the same through Investigating Officer. All

these circumstances appearing from record makes evidence of

this witness wholly unreliable and it deserves to be kept out of

consideration.

( 14 )

11. The learned Trial Court has laid much stress on the

evidence of Mallikarjun (PW-1), Ankush (PW-2), Macchindra

(PW-3) and Mangesh (PW-5) to whom deceased made oral

dying declaration. Testimony of Mallikarjun shows that as per

his claim while Babu while taking treatment in Civil Hospital

disclosed to him that Umakant, Ramakant, Vasant and 5-6

other unknown persons assaulted him. In this regard it would

be relevant to take note of the testimony of Mangesh (PW-5).

This witness claims that after reaching to the spot he along

with others took Babu to the Civil Hospital at about 7.00 p.m.

and immediately thereafter he was admitted there. According

to him his father i.e. Mallikarjun (PW-1) was waiting outside

the hospital. According to Mangesh (PW-5) Babu was admitted

in hospital at 7.00 p.m. Requisition of police (Exhibit 213) for

ascertaining condition of injured for recording statement shows

that as per opinion of Medical Officer he was not fit to record

statement. Sandipan (PW-4) in whose presence inquest on the

dead body of the deceased was done has admitted in the

cross-examination about he having seen Babu with injuries on

his person in Civil Hospital. He further stated that Babu was

( 15 )

unconscious at that time. These statements create doubt

about claim of Mallikarjun about disclosure made to him by

Babu in hospital.

12. Ankush (PW-2) also claimed that after occurrence of

the incident he went to the spot and had seen Babu in injured

condition and on inquiry he was told that appellant and his

companions assaulted him. It has come in his cross-

examination that after hearing the shouts it took half and hour

for him to reach to the spot and when he went there Babu was

lying there in semi unconscious state. There is no dispute

about the fact that this witness is friend of the deceased.

Another witness Macchindra claims that he went to the spot

and took Babu on motorcycle and at that time when he made

inquiry about the incident, Babu told him that he was beaten

by the appellant. In the cross-examination, however, he

candidly admitted that Babu was unconscious while he seated

on the motor bike. He has also accepted that Babu was not in

a position to sit on the motor bike and was required to be held

by him.

( 16 )

13. There is no dispute about the fact that Babu had

sustained number of injuries as reflected in the PM notes

(Exhibit 187). There is also evidence on record to show that

had initially Babu was in semi unconscious condition and

thereafter while he being taken to the hospital became

unconscious. In view of this fact it is not conceivable that all

witnesses one after another made inquiry with person who was

seriously injured and to all of them Babu responded. It is

pertinent to note that there is no consistency in the statement

made by these witnesses about the disclosure made to them

by Babu. If such disclosure was made it ought to have been

consistent to all. Learned Trial Court has overlooked the said

discrepancies by branding them as minor discrepancies owing

to the perception of individuals. In this regard it is necessary

to consider that these witnesses do not make any statement

as to what and how they have witnessed any incident for

coming in to play their perception which may lead to causing

discrepancies. Since Babu has disclosed about the assailants to

these witnesses there ought to have been consistency in their

statements. In these circumstances it would be unsafe to rely

( 17 )

upon inconsistent statements of the witnesses about disclosure

made to them by Babu giving the names of the assailants.

RECOVERY OF WEAPON

14. Shaikh (PW-11) is panch witness in whose presence

appellant said to have made statement about axe and wooden

logs being kept in his house at Moti nagar. He thereafter took

police to his house with wooden logs and axe (article E).

According to the witness those articles were seized under

panchnama Exhibit 167. He, however, does not say that those

articles were sealed at the spot. Even there is no reference

about sealing of the axe at the time of seizure in panchnama

(Exhibit 167). In the cross-examination this witness has also

admitted that there is no label affixed on the axe bearing his

signature. Thus, seizure and sealing of weapon at the spot has

not been proved by the prosecution. As far as wooden logs are

concerned neither its use is attributed against appellant nor

those articles are incriminating as in substantial evidence

panch witness does not claim having seen any blood stains

therein. Chemical Analyzer report indicates that the axe is

( 18 )

stained with blood group of deceased. In absence of evidence

to show that the axe was sealed and kept in sealed condition

till it was sent to FSL, the CA report indicating blood there on

cannot considered incriminating against accused.

15. Apart from this, there is no evidence on record to

show that the very same axe was used to cause assault on the

head of the deceased. The weapon in question was never

referred to the Medical Officer for seeking his opinion about

the possibility of causing of injury to the head of the deceased

with the axe (article E) recovered at the instance of accused.

In absence of such evidence the said weapon cannot be

connected with injury to head allegedly caused by Appellant.

16. The learned Trial Court has acquitted all other

accused except appellant. However, the appellant is convicted

for the offence punishable under Section 302 of the Indian

Penal Code by holding that it was appellant who had assaulted

deceased on his head with axe. There is no evidence on record

to show that appellant used axe in order to cause assault on

( 19 )

the head of the deceased. Even in the oral dying declaration

made by the deceased to the witnesses there is no mention as

to how he was assaulted much less any specific statement to

the effect that appellant assaulted him with axe on his head.

Once evidence of Vijaymala (PW-9) is discarded, there remains

absolutely no evidence to hold that it was Appellant herein

who only assaulted the deceased in his head with axe and that

injury to head is caused by axe. Learned Trial Court also

proceed to hold that Appellant was armed with deadly weapon

but after not believing presence of Vijaymala at spot at time of

occurrence of incidents there is no material to record such

finding.

UNLAWFUL ASSEMBLY/ COMMON OBJECT

17. The appellant is also convicted for the offences

punishable under Sections 143, 147, 148 read with Section

149 of the IPC. In order to convict him for those offences there

ought to have been evidence on record to show that he along

with 5 or more persons formed unlawful assembly and in

furtherance of common object of said such assembly assaulted

( 20 )

deceased. Perusal of the statements made by the deceased to

the witnesses do not show involvement of more than five

persons in the incident in question. Since, testimony of

Vijaymala is not being found convincing by the Trial Court and

evidence of Mallikarjun is not worthy of credence, there is no

other evidence to prove involvement of in all 5 or more

persons in the incident in question. As observed earlier there is

no evidence to hold that it was Appellant who had assaulted

deceased on head with axe and there was formation of

unlawful assembly with common object, Section 149 of IPC

cannot be invoked to make Appellant liable for the acts of

others. Learned Trial Court has acquitted appellant for offence

punishable under Section 120B of the IPC. Thus, it is not case

of criminal conspiracy between Appellant and others. The

prosecution alleges bund dispute between deceased and

Vasant to be motive for commission of crime, but evidence

shows that their lands are not adjacent to each other. Thus,

reason of dispute between the parties is not substantiated.

CONCLUSION

18. It is cardinal principle in a criminal case that the

( 21 )

accused is innocent till the guilt is proved against him beyond

reasonable doubt. Having regard to the nature of evidence and

unreliable testimony of eye witness and inconsistent versions

of the witnesses to whom oral declaration is made by the

deceased about cause which led his death, it would be unsafe

to convict the accused for the offence in question. Since

evidence on record does not fullfil requirement of proof of

charges beyond shadow of reasonable doubt, case of

prosecution must fail.

19. In view of the above discussion, impugned

judgment cannot sustain and deserves to be set aside. In the

result Appellant/ Accused No. 1 in Sessions Case No. 4 of 2013

and 118 of 2013 is hereby acquitted. Appellant be released

forthwith if not required in any other case. He is entitled for

refund of fine amount. Appellant to comply provision of

Section 437A of the Code of Criminal Procedure.

(R. M. JOSHI, J.)                                         (R. G. AVACHAT, J.)


SSP/criappeal928