Ramchandra S/O. Lahanuji Divase ... vs The State Of Maharashtra
2023 Latest Caselaw 8978 Bom

2023:BHC-AUG:18760-DB


                                                                     apeals-269-2016 and 255-2023



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                        CRIMINAL APPEAL NO.269 OF 2016

                 1.       Ramchandra s/o Lahanuji Divase
                          Age: 69 years, Occu.: Agril.,
                          R/o. Indira Nagar, Sarsam,
                          Tq. Himayatnagar, Dist. Nanded
                 2.       Pandurang s/o Kashiba Divase
                          Age: 64 years, Occu. And
                          R/o. As above.
                 3.       Namdeo s/o Ramchandra Divase
                          Age: 32 years, Occu. And
                          R/o. As above.
                 4.       Nagorao s/o Pandurang Divase
                          Age: 27 years, Occu. And
                          R/o. As above,
                          (At present are in jail)
                          (As per order dated 13.03.2023
                          separate appeal i.e. Criminal Appeal
                          No.255/2023 has been filed by
                          appellant No.4)                                         .. Appellants

                                  Versus

                          The State of Maharashtra
                          Through Police Station Officer,
                          Police Station Himayatnagar,
                          Tq. Himayatnagar, Dist. Nanded.                         .. Respondent
                                                      ...
                                                   WITH
                                     CRIMINAL APPEAL NO.255 OF 2023

                          Nagorao s/o Pandhurang Divase
                          Age: 35 years, Occu.: Agri.,
                          R/o. Indra Nagar, Sarsam,
                          Tq. Himayatnagar, Dist. Nanded                          .. Appellant

                                  Versus


                                                          [1]



                ::: Uploaded on - 31/08/2023                     ::: Downloaded on - 01/09/2023 09:09:50 :::
                                                       apeals-269-2016 and 255-2023



          The State of Maharashtra
          Through Himayatnagar Police Station,
          Tq. Himayatnagar, Dist. Nanded                           .. Respondent

                              ...
 Mr. Gajanan G. Kadam, Advocate for appellants in Criminal Appeal
 No.269 of 2016.
 Mr. Chaitanya C. Deshpande, Advocate for appellant in Criminal
 Appeal No.255 of 2023.
 Mr. A. V. Deshmukh, APP for the respondent - State in both the
 appeals.
                               ...

                               CORAM : SMT. VIBHA KANKANWADI AND
                                       ABHAY S. WAGHWASE, JJ.

RESERVED ON : 1st August, 2023 PRONOUNCED ON : 31st August, 2023

JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :-

. Both the appeals are arising out of the same judgment and,

therefore, taken up together for scrutiny. The appellants in both the

appeals are the original accused persons. They faced trial in Sessions

Case No.37 of 2012 before the learned Additional Sessions Judge,

Bhokar, Dist. Nanded. They have been held guilty of committing

offence punishable under Section 302 read with Section 34 of Indian

Penal Code on 22.03.2016 and have been sentenced to suffer rigorous

imprisonment for life and to pay fine of Rs.5,000/- each, in default, to

suffer rigorous imprisonment for three months.

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apeals-269-2016 and 255-2023

2. Heard learned Advocate Mr. Gajanan G. Kadam for the

appellants in Criminal Appeal No.269 of 2016, learned Advocate

Mr. Chaitanya C. Deshpande for the appellant in Criminal Appeal

No.255 of 2023 and learned APP Mr. A. V. Deshmukh for the

respondent - State in both the appeals.

3. The prosecution story in short is that informant Dashrath

Ramesh Chavan is the brother of deceased Santosh Ramesh Chavan.

They are in all three brothers residing with their parents and family

members at Indira Nagar, Sarsam, Tq. Himayatnagar, Dist. Nanded.

They are mainly agriculturist. FIR has been lodged on 10.05.2012,

wherein it was contended that there was a quarrel around 4.00 p.m.

on 09.05.2012 between the informant's younger brother Nilkanth

with neighbour Ramchandra Kashiba Divase, Pandurang Kashiba

Divase, Namdeo Ramchandra Divase and Nagorao Pandurang Divase

i.e. present accused Nos.1 to 4. That quarrel was on account of

allegation that Nilkanth had allowed his bull to eat the fodder from

the heap of fodder which was kept by accused Nos.1 to 4. Thereafter,

when deceased Santosh Ramesh Chavan was proceeding for freeing

the she-goats from their shed around 7.30 a.m. on 10.05.2012, at that

time, accused Nos.1 to 4 picked up quarrel with him. Even Nagorao's

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wife was also present there. All of them took Santosh towards the

house of one Datta More in a galli and started beating him. Nagorao's

wife was shouting in filthy language and instigating accused

Nos.1 to 4. Dashrath went running to rescue, but at that time accused

Pandurang, Namdeo and Nagorao started catching hold Santosh and

assaulting him and then accused Ramchandra took out a knife and

stabbed it in chest of Santosh. It caused bleeding injury to him at the

chest. Informant Dashrath was also beaten on his head. Santosh fell

down on the ground and then the persons from the galli came to

rescue. They separated the accused from the deceased. Santosh was

shifted to Primary Health Centre in injured condition at Sarsam and

then he was referred to Nanded Hospital. However, Santosh expired

in the journey around 9.30 a.m. Thereafter, Dashrath went to police

station and lodged the first information report. On the basis of his

First Information Report offence vide Crime No.51 of 2012 came to be

registered with Himayatnagar Police Station, Dist. Nanded for the

offence punishable under Sections 302, 147, 148, 149, 504 of Indian

Penal Code and the investigation was taken up.

4. During the course of the investigation panchanama of the spot

(Exhibit-72), inquest panchanama (Exhibit-76) came to be executed.

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The dead body was sent for the postmortem. The accused persons

came to be arrested. A dagger was discovered at the instance of

accused No.1. The seized articles were sent for chemical analysis.

Statements of witnesses under Section 161 of the Code of Criminal

Procedure came to be recorded. After the completion of the

investigation, charge-sheet was filed.

5. It appears that accused No.1 was never released on bail, but the

other accused persons were on bail. After the committal of the case,

when they denied to plead guilty, charge was framed at Exhibit-3.

The prosecution has examined in all ten witnesses to bring home the

guilt of the accused. The prosecution has also relied on various

documents. As the incriminating evidence has come, statement of the

accused under Section 313 of the Code of Criminal Procedure came to

be recorded and thereupon the opportunity was given to the accused

to lead witness in defence. Accordingly, D.W.1 Dr. Hanmant

Dharmkare, the then medical officer from SGGS Hospital, Nanded,

has been examined to prove the injuries on the person of accused

No.1. After considering the evidence on record and hearing both

sides, the learned Trial Judge has held the original accused Nos.1 to 4

guilty of committing offence as aforesaid, however, original accused

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No.5 has been acquitted of all the charges and, therefore, these two

appeals by original accused Nos.1 to 4 respectively.

6. It has been vehemently submitted on behalf of the appellants

that the prosecution story is unbelievable. The story about homicidal

death of Santosh is unacceptable. The informant P.W.1 Dashrath has

posed himself as eye witness, injured and the informant, but his

presence at the spot at the relevant time itself is doubtful. Prosecution

has examined eye witness P.W.4 Balaji and in his cross-examination,

he has admitted that Dashrath has come to the place of incident when

Santosh fell down on the ground. That means the actual stabbing or

assault by knife has not been seen by P.W.1 Dashrath. Even as regards

P.W.4 Balaji is concerned it appears that he came to the spot a little

later. P.W.2 Taibai is another eye witness. If we consider the

testimony of P.W.1 Dashrath, P.W.2 Taibai and P.W.4 Balaji then we

can see the discrepancies amongst their testimony. Their statements

have been belatedly recorded, for which there is no explanation

offered by the investigating officer. The informant stays far away from

the place of incident and it has also come on record that there was no

necessity to go from the place in front of the house of accused even

for untying she-goats. The family members never used to use the said

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road for the said purpose. Rather the prosecution has not explained

the injuries on the person of accused. In the cross-examination, the

investigating officer has admitted that he had arrested accused Nos.1

and 2 from the hospital. He admitted that they were indoor patients.

He had collected their injury certificates, yet he has not filed those

certificates on record. Therefore, this appears to be the case of free

fight if at all it is accepted from the testimony of the informant and

the eye witnesses. When the testimony of these witnesses is not

beyond reasonable doubt, then the learned Trial Judge ought not to

have proceeded to convict them. The presence of P.W.4 Balaji is

doubtful. He has admitted in his cross-examination that he does not

reside in the same lane, but then he comes with the story that he was

proceeding to call one Kishan More at the relevant time. The

topographical situation that has been brought on record through

cross-examination of this witness as well as spot panchanama would

certainly show that there is much distance between the house of the

accused and house of the informant. Therefore, deceased Santosh had

no occasion to go to the house of or be in front of the house of the

accused. Both the learned Advocates have taken us through all the

documents on record and the testimony of the witnesses for the

appreciation of the evidence and their submissions. It has come on

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record that accused Ramchandra Divase suffers from eye disease. His

medical certificates showing his disability have been produced on

record. If his vision was not clear, then it is hard to believe that he

would have inflicted the blow of the said weapon to the deceased

Santosh. That certificate has not been properly considered and,

therefore, interference is required. The prosecution has not proved

the guilt of the accused beyond reasonable doubt.

7. Learned Advocate Mr. Chaitanya C. Deshpande appearing for

the appellant in Criminal Appeal No.255 of 2023 has relied on the

decision in Nand Lal and others Vs. The State of Chattisgarh, [2023

LiveLaw (SC) 186], wherein it has been held that "when it is a case of

proving previous enmity, then a possibility of false implication cannot

be ruled out. Further, when there is omission on the part of the

prosecution to explain the injuries on the person of the accused would

assume greater importance where the evidence consists of interested

or inimical witnesses or where the defence gives a version which

competes in probability with that of the prosecution one." What is the

effect of delay in lodging the FIR has also not been considered in this

case. They both have therefore prayed for acquittal of the appellants.

[8]

apeals-269-2016 and 255-2023

8. Per contra the learned APP supported the reasons given by the

learned Trial Judge. He has also taken us through the testimony of

witnesses wherever required to support his submission. He submitted

that prosecution has proved that accused Nos.2, 3 and 4 had caught

hold of Santosh and then accused No.1 has stabbed him with the help

of knife, therefore, they shared a common intention. There was

quarrel on the previous day, which was in fact resolved by the elder

persons, but still it appears that the anger was there in the mind of

the accused persons. The contradictions and omissions on which the

learned Advocate for the appellants are relying are not material

contradictions and omissions. The testimony of P.W.1 Dashrath stood

corroborated by testimony of P.W.2 Taibai and P.W.4 Balaji. Specific

role has been attributed to each of the accused. Thereafter the inquest

panchanama has been proved through panch witness Exhibit-76 by

examining P.W.5 Tukaram. Testimony of P.W.9 Dr. Maroti Dake, the

medical officer, who conducted the autopsy, would show that there

was stab injury on front of chest at left clavicular area, which proved

to be fatal and use of knife would be definitely with an intention to

kill. The probable cause of death is "due to stab injury to left lung

and pulmonary artery". Therefore, it was a homicidal death. The

accused persons shared the common intention and, therefore,

[9]

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conviction awarded to them is perfectly justified. There is no

necessity to interfere.

9. Here, in this case, the prosecution has come with the specific

case that the death of Santosh is homicidal in nature i.e. by knife. In

order to prove the homicidal death of Santosh, prosecution is relying

upon ocular evidence as well as medical evidence. P.W.9 Dr. Maroti

Dake is the medical officer attached to Government Medical College

and Hospital, Nanded. He has conducted autopsy on 10.05.2012

between 12.00 p.m. to 1.00 p.m. He had found stab injury on front of

chest at left clavicular area, 2 cm lateral to mid line, obliquely placed,

2.5 cm x 1 cm x cavity deep, directed downwards, backwards and

laterally, bevelling of upper margin and undermining of lower margin

present. It is said that both angles were blunt. He had noted the

corresponding internal injury and after considering injuries and other

aspects, he has opined that the cause of death was "due to stab injury

to left lung and pulmonary artery". In the cross-examination he has

admitted that he has not mentioned the time of death, but according

to him the death would have been instantaneous. He also said that

the edges of the injury were corresponding with the edges of the

weapon. He was unable to opine regarding use of force with the help

[10]

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of weapon at the time of commission of the offence. Important point

to be noted is that the knife i.e. article No.1, which is said to be seized

under the memorandum panchanama, was not shown to this witness

and his opinion has not been sought as to whether the injuries he had

noted on the dead body were possible due to said weapon. Yet,

certainly it can be said from the contents of the autopsy report itself

that the death was due to stab injury and the death is homicidal in

nature.

10. The said fact has also been brought on record and proved by

the prosecution by examining P.W.1 Dashrath - brother of deceased

Santosh, P.W.2 Taibai, P.W.4 Balaji eye witness. All of them have said

that accused No.1 had inflicted blow of knife on the chest of Santosh

when Santosh was caught hold of by accused Pandurang, Namdeo

and Nagorao. Important point to be noted is that while recording

testimony of P.W.1 Dashrath, the knife has been marked as article

No.9, but in the testimony of P.W.4 Balaji, P.W.6 Maruti and P.W.10

P.I. Ghuge - Investigating Officer, the knife has been marked as

article No.1. The recording does not show that in all two knifes were

recovered. Therefore, it can be said that the knife that was shown to

these witnesses was only one knife, but this confusion could have

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been removed or ought not to have been created by the learned Trial

Judge. Yet, at the cost of repetition it can be certainly said that the

said knife was not shown to the medical officer and his opinion was

not sought regarding the use of said knife, but the said knife has been

identified by P.W.1 Dashrath, P.W.2 Taibai and P.W.4 Balaji.

11. Now, turning towards the ocular evidence in respect of the

incident, the testimony of P.W.1 Dashrath and P.W.4 Balaji appear to

be supporting each other broadly, however, only broad support is not

necessary to prove the guilt of the accused. It is required to be seen

as to whether those witnesses were corroborating each other on

material aspects and they are trustworthy, before it is certified that

the conviction can be based on the testimony of these witnesses.

12. P.W.1 Dashrath - informant - brother of deceased has deposed

that there was a quarrel between his younger brother Nilkanth and

their neighbours Ramchandra, Namdeo and Nagorao around 4.00

p.m. and the reason for quarrel was as to why the bullock belonging

to deceased and informant had consumed the fodder/ Kadba

belonging to accused persons. Then it is stated by the informant that

around 7.30 a.m. on 10.05.2012 i.e. next day, when Santosh was

proceedings towards the hut in order to set the she-goats free, at that

[12]

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time, the accused persons came there and took Santosh towards the

lane of house of Datta More and started abusing and beating him.

Here, it is to be noted that the testimony of P.W.1 Dashrath is silent

as to how much distance would have been covered by the accused

while allegedly taking away Santosh. In the cross-examination it has

been admitted that there are five lanes in Indira Nagar. Those lanes

have residential accommodations of different persons and it can be

seen from the cross-examination of this witness that they are not

residing in the same lane. Therefore, while he was being taken away

whether Santosh had tried to rescue himself or in what manner the

accused persons took away deceased Santosh has not been told by

these witnesses. When a person realizes that he has been asked by

another to accompany that person with force or under pressure,

definitely, the person, who has been so asked would react, then

witnesses, who claim themselves to be eye witnesses, have stated that

Santosh was resisting the said act on the part of the accused to take

him forcibly along with them. Further, it has not come on record as

to what was the location, where the she-goats belonging to informant

were tied. Here, it has come in the evidence of P.W.1, P.W.2 and

P.W.4 that the incident has taken place near the house of one Datta

More and even the Investigating Officer is accepting the said position,

[13]

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still P.W.10 Investigating Officer does not say that he had recorded

the statement of Datta More under Section 161 of the Code of

Criminal Procedure. It has rather come on record that the house of

accused is near or adjacent to the house of Datta More. It is the

defence of the accused that P.W.1 Dashrath, deceased Santosh had

assaulted accused No.1 Ramchandra and P.W.2 Pandurang. Whether

there is any substance in the defence or not would be considered at a

later stage, yet the fact ought to have been brought on record or

evidence ought to have been led to show that this taking away was

with some intention and not by way of attack on the accused persons

wherein injuries were caused to both sides. Of course the accused

persons are not coming with a case that the injuries were caused to

the deceased as well as P.W.1 Dashrath as a right of private defence

and thereupon the Court would be asked to assess who is the

aggressor. But when prosecution is duty bound to prove the guilt of

the accused beyond reasonable doubt, then evidence should be

adduced by the prosecution from all the angles.

13. According to P.W.1 Dashrath, wife of Nagorao was shouting

and instigating, but then Pandurang, Namdeo and Nagorao caught

hold of Santosh and then Ramchandra gave blow of knife on the chest

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of Santosh. P.W.2 Taibai and P.W.4 Balaji are not the witnesses to

the alleged dispute that had taken place on the earlier day i.e.

09.05.2012. They are the witnesses on the point what they had seen

around 7.30 a.m. on 10.05.2012. According to P.W.2 Taibai, she

came out after hearing the noise and then saw that Ramchandra,

Pandurang, Nagorao and Namdeo were holding Santosh. One

Archanabai had also come running. She has also stated that

Ramchandra has taken out the knife and gave blow to Santosh.

P.W.4 Balaji is also saying so. At this stage itself, we would like to

consider the defence taken by Ramchandra. Ramchandra says that he

is partially blind after he suffered paralytic attack. He has also given

a written notes of arguments and also certificates of disability in

respect of his eye sight. He has examined D.W.1 Dr. Hanmant to

prove injuries on his person. This witness has also said about the

examination of Ramchandra by Ophthalmologist on 10.05.2012. It is

said that the patient's right eye pupil was not responsive to light. The

left eye of the patient was infected by raw cataract, but in the cross-

examination he has admitted that if the eye is infected with cataract,

it is possible to view in unclear way. Even if for the sake of arguments

we accept that Ramchandra was in a position to see, yet it is required

to be tested as to whether the evidence led by the prosecution proves

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the offence beyond reasonable doubt.

14. The motive is said to be the alleged quarrel on 09.05.2012. At

the cost of repetition it can be said that except P.W.1 Dashrath,

nobody has been examined to say anything about the incident dated

09.05.2012. He has also stated that the quarrel was between

Ramchandra, Namdeo, Nagorao on one part with Nilkanth, who is the

younger brother of P.W.1 Dashrath. He does not say that deceased

Santosh was also there and he had in any way tried to intervene.

Therefore, the question arises as to why on the next day, Santosh

would have been caught hold by these persons. Therefore, the said

motive appears to be shaky or the real reason behind the incident has

not been told. Nilkanth has not been examined to prove the incident

dated 09.05.2012. In the cross-examination, P.W.1 Dashrath says

that report was given before Tanta Mukti Samiti regarding incident

dated 09.05.2012 and on that day in the evening the President of the

said Samiti had met Dashrath and his grievance were noted, but he

does not say that he has tried to lodge any report with the police, nor

Nilkanth has reported the matter to police. As aforesaid, the said

incident has nothing to do with Santosh and, therefore, whether

Santosh was the target of the accused itself, is a question. When

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there are eye witnesses, then motive does not play a lead role and,

therefore, we may keep the point aside for a moment.

15. P.W.1 Dashrath has said that after hearing shouts of Santosh,

he went running towards the place and saw that Pandurang, Namdeo

and Nagorao had caught hold of Santosh and they were beating him,

whereas Ramchandra took out a knife and gave blow on the chest of

his brother. He has not stated as to from how much distance he had

seen the incident, but certainly he had not intervened before the blow

was allegedly given by accused No.1. He then says that after his

brother fell down, he went towards Santosh, but he received blow on

the backside of his head. He does not say as to who had assaulted

him, but then says that they were separated by Lalbaji Gaikwad,

Taibai Kshirsagar, Kamalbai Nandkumar as well as Balaji. Out of them

Taibai and Balaji have been examined. He then says that he has then

taken his brother Santosh to Primary Health Centre, Sarsam, where

primary aid was given and then Santosh was referred to Civil

Hospital, Nanded, but on the way Santosh has expired. In the cross-

examination, the situation around the place of incident has come on

record. It can be seen that it is surrounded by houses, therefore, those

persons in the vicinity were the appropriate witnesses. In his cross-

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examination, P.W.6 has stated that the place of tying she-goats is in

the fifth lane near the house of Digambar Kadam. That means, it

appears to be away from their house. It has not come on record as to

whether the said road, where the said incident has taken place, was in

the mid of the house of the informant and the place where their she-

goats were tied. P.W.1 Dashrath has accepted that accused

Ramchandra and Pandurang are residing separately. Police persons

had come after the incident and in categorical terms he admits that

the police persons had taken accused No.1 from Sarsam to

Himayatnagar. He claimed ignorance as to whether Pandurang and

Ramchandra were taken by police to Primary Health Center, Sarsam

for the purpose of treatment and thereafter for two days they had

taken treatment from the hospital at Nanded. He has denied the

suggestion that one Nilu (may be referring to Nilkanth) and Nandu

had caught hold of Pandurang and with the help of axe P.W.1

Dashrath had given blow to Pandurang. He denied that Pandurang

was assaulted on his head, chest and back by him. He further denied

that he himself along with Nilu and Nandu had beaten Ramchandra

on his forehead near eye, backside of right shoulder and on chest. He

denied that there was a scuffle between them and Santosh was taken

within 15 minutes thereafter to Primary Health Centre. Thus, the

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defence of accused is that P.W.1 Dashrath, one Nilu, Nandu and also

Santosh had attacked them and caused injuries and it is also their

defence that these prosecution witnesses and others were the

aggressors. As regards the testimony of P.W.2 Taibai is concerned, as

aforesaid, she had broadly corroborated P.W.1 Dashrath, however, it

is to be noted that in her statement under Section 161 of the Code of

Criminal Procedure, she had stated that accused No.1 had caught

hold of Santosh. It was therefore suggested that when accused No.1

had caught hold of Santosh, how he could have given the blow. This

witness has made improvement. She had denied the suggestions

about receiving injuries by accused Nos.1 and 2. P.W.4 Balaji has

deposed on the same line. However, it is to be noted that he is not

residing in the same lane, but according to him he was proceeding

towards the house of Kisan More at the relevant time. In his cross, he

has admitted that P.W.1 Dashrath came to the place of incident after

Santosh had fallen on the ground, however, this alleged admission

cannot be read in isolation and it is a fishing question. It is also not in

consonance with the defence that has been taken by the accused. He

admitted that police had come and when they were taken

Ramchandra i.e. accused No.1 with them, there were injuries on the

person of accused No.1, his clothes were blood stained. Clothes of

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Pandurang were also blood stained and there were injuries on the

person of Pandurang. Thus, the prosecution eye witness is saying

about the injuries on the person of the accused, but not explaining as

to how those injuries were caused to accused Nos.1 and 2. At this

stage itself, if we take note of the cross-examination of P.W.10 P.I.

Ashok Ghuge, then it emerges that he had reached the place of

incident after about 45 minutes. He has caused accused No.1 and 2

to be referred to Primary Health Centre and accordingly, they came to

be examined around 9.00 a.m. He has not collected the treatment

papers even in respect of P.W.1 Dashrath. He has not seized the

weapons which were used while assaulting accused and causing

injuries to them. He has also stated that he had noted that the clothes

of accused Nos.1 and 2 were blood stained when he brought them to

police station. He had made the entry about their arrival in the police

station in the station diary. He had not recorded the statement of the

injured accused persons, nor seized their clothes. He says that he had

collected the injury certificates of the accused, but did not file it along

with the charge-sheet. He admitted that Pandurang and Ramchandra

were admitted as indoor patients for three days. He had perused the

medical certificates of accused. According to him he has not filed the

medical papers of accused Nos.1 and 2, as they have killed Santosh.

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Such kind of investigation is not contemplated at all. The

investigation should be fair and when all these things were

happening, he ought to have placed all the relevant papers and

collected the evidence by considering all the angles. The evidence

that has been carried out by P.W.10 P.I. Ghuge is one sided, arbitrary.

He has suppressed the genesis of the incident. Here, we are also

taking note of the testimony of D.W.1 Dr. Hanmant, who was the

medical officer with SGGS Hospital, Nanded. He had examined

accused No.1 at about 12.40 p.m. on 10.05.2012 and had noted

giddiness and pains at right shoulder and injury on forehead and right

eyebrow. He had referred the patient to surgery department. It is to

be noted that the prosecution has then developed a case of self

inflicting injuries by the accused persons, but there is no suggestion to

D.W.1 Dr. Hanmant as to whether these injuries can be self inflicted.

The theory of the self infliction has come on record through P.W.2

Taibai and P.W.4 Balaji. Interestingly, P.W.1 Dashrath has not stated

anything about it. P.W.2 Taibai and P.W.4 Balaji have stated that all

the accused after assaulting Santosh went to their house and then

threatened the general public by saying that if anybody is having

courage, then he should come forward. In fact, it has not been

brought on record as to why the accused persons would have enmity

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with other persons. It is the case of these eye witnesses that only

Ramchandra was holding knife, yet these two witnesses i.e. P.W.2 and

P.W.4 are saying that Pandurang and Ramchandra caused injuries to

themselves with the help of weapons, they were possessing. In other

words, when there is no case by prosecution that Pandurang was also

possessing any weapon, then how he could have inflicted those

injuries. No doubt, the defence has not produced the injury

certificates of accused Pandurang and D.W.1 Dr. Hanmant in his

examination-in-chief has clearly stated that the injuries may not be

self inflicted injuries. The prosecution in his cross has not shown the

knife seized in the case and asked opinion as to whether the injuries

on the person of Ramchndra are possible by article No.1 or article

No.9 - knife. Therefore, prosecution story itself is not corroborated.

At the cost of repetition, it can be said that there is total suppression

of the documents in respect of injuries caused to the accused by the

investigating officer, though he collected it.

16. P.W.3 Sunil Wankhede is the panch witness to the spot

panchanama which is not disputed much by the accused themselves

in a sense that the situation at the spot at the relevant time appears to

be disputed, but not the location. P.W.5 Tukaram Gundekar is the

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panch to the inquest panchanama and it can be said that the death of

Santosh is not disputed. P.W.6 Maroti Suryawanshi is the panch to

the discovery panchanama. It has been said that accused No.1 had

discovered the knife from the cattle shed. In the cross-examination,

he has stated that the Head Constable, who had gone to call him, told

him that they want to prepare panchanama regarding seizure of knife

and, therefore, required him to accompany him. Even if for the sake

of arguments, it is accepted that such type of panchanama is

prepared, yet neither the contents of the panchanama nor the

testimony of P.W.6 Maroti is clear enough in indicating that which

was the place from the cattle shed from where the knife was

discovered. By merely stating that it was discovered from cattle shed

is not sufficient. The incident has taken place on 10.05.2012 and the

alleged discovery is on 18.05.2012. Further, it has come on record

that on 10.05.2012 itself from the said place of incident P.W.10 P.I.

Ghuge had taken accused Ramchandra and Pandurang to police

station. Then the question arises when injured Ramchandra had time

to conceal the knife and after the hospital had discharged

Ramchandra, P.W.10 P.I. Ghuge had arrested him at about 15.30

hours on 13.05.2012 and therefore, the said discovery under Section

27 of the Indian Evidence Act is doubtful. P.W.7 Baburao is the

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panch to the seizure of clothes. Same is as regards P.W.8 Anand.

17. Thus, it can be seen that though eye witnesses are examined

and it is in a way proved that death of Santosh is homicidal in nature,

yet the prosecution story is doubtful. The learned Advocate

Mr. Chaitanya C. Deshpande has rightly placed reliance on the

decision of three Judge Bench in Nand Lal and Ors. (Supra), wherein

it has been held that "omission on the part of the prosecution to

explain the injuries on the accused would assume greater importance

where the evidence consists of interested or inimical witnesses or

where the defence gives a version which competes in probability with

that of the prosecution one." In this case, reliance has been placed on

the decision in Lakshmi Singh and others Vs. State of Bihar, [(1976) 4

SCC 394], the other decisions have also been referred and then the

above-said ratio has been laid down. We would like to reproduce

paragraph No.12 from Lakshmi Singh and others (Supra) in respect of

non explanation of injuries sustained by accused, which reads as

under :-

"12. .......It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance

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from which the court can draw the following inferences:

"(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

18. Therefore, in this case also, as aforesaid, the prosecution has

suppressed the genesis and the origin of the occurrence by non

explanation of injuries to accused Ramchandra and Pandurang. Under

the said circumstance, the benefit of doubt will have to be given to

the accused. Their appeals therefore deserve to be allowed. Hence,

the following order :-

ORDER

I) Both the criminal appeals stand allowed.

II) The conviction awarded to accused Nos.1 to 4 i.e. appellants in respective appeals in Sessions Case No.37 of 2012

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by learned Additional Sessions Judge, Bhokar, Dist. Nanded on 22.03.2016, after holding them guilty of committing offence punishable under Section 302 read with Section 34 of Indian Penal Code, stands set aside.

III) The appellants in respective appeals i.e. accused Nos.1 to 4 viz., (i) Ramchandra s/o Lahanuji Divase, (ii) Pandurang s/o Kashiba Divase, (iii) Namdeo s/o Ramchandra Divase and (iv) Nagorao s/o Pandurang Divase stand acquitted of the offence punishable under Sections 302 read with Section 34 of Indian Penal Code.

IV) They be set at liberty if not required in any other case.

V) The fine amount deposited, if any, be refunded to the appellants after the statutory period is over.

VI) We clarify that there is no change in the order in respect of disposal of Muddemal passed by the learned Additional Sessions Judge.

[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]

scm

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