Criminal Appeal No.167 of 1986,Criminal Revision Application No.26 of 1986

27th April, 2001

Petitioner Counsel: Mr. A.M. SHRINGAPURE
Respondent Counsel: Mrs. GAURI JADHAV

JUDGMENT

AGUIAR, J. :- Through this Appeal under section 378(1) of the Criminal Procedure Code the State of Maharashtra has impugned judgment and order dated 19.11.1985 passed by the Additional Sessions Judge, Nashik in Sessions Case No.112 of 1985 acquitting all the accused of the offences punishable under sections 147,148,149,302 and 304 of the I.P.C. and also of the alternative charges.

2. Briefly stated the prosecution case as narrated by Kamlabai Govinda Ahire (P.W.1) is that accused Nos.1 to 10 and the deceased Govinda were close relatives i.e. brothers and nephews and they all resided in houses adjacent and/or nearby to each other in the said village. It appears that there were two parties in the village one headed by Kashinath Shivram Ahire and the other consisting of accused persons. The accused persons did not like the deceased working for Kashinath. As he owed allegiance to Kashinath Ahire the head of the opposite party, and threatened that they would kill Govinda if he continued to work for Kashinath. Govinda used to tell them that he would join the party of the accused persons provided the dispute over his daughter was settled.

3. On the night of 12.6.1985 at about 8.30 p.m. some persons were throwing stones at the house of Govinda, his wife Kamlabai (P.W.1) enraged by this asked the miscreants to stop throwing stones at the house and to come forward and beat them. Thereafter the stone throwing stopped. Next morning at about 6.00 a.m. Govinda's daughter Vijayabai prepared Bhakri (bread) and gave them to her father Govinda for taking along with him to his place of work viz. the field of Bhiwa Trimbak Ahire. As Govinda stepped out of the house with his bundle containing bread he was stopped at the door by accused No.1 who held his arms and started dragging him towards the electric pole. Thereafter accused 2 to 9 also arrived and they all dragged Govinda and while doing so they also beat and then tied him to a pole with a rope and again beat him with small sticks. Kamlabai (P.W.1) tried to save her husband Govinda but accused No.4 held her hands and slapped her. At that time daughter Vijayabai was at the door and she witnessed the incident. Several villagers also assembled. Thereafter Kamlabai (P.W.1) went to outpost at Jaikheda and returned with the police. However in the meantime police officer A.S.I. Kulkarni had arrived there from Jaikheda. Kamlabai (P.W.1) saw her husband Govinda lying on the cot and found that he was dead. It appears that Mothabhau Kashinath Ahire a distant nephew of Bhiva Ahire had gone to the police station at Jaikheda and informed the police in writing about the incident. Hence A.S.I. Kulkarni from the Jamkheda police station reached the scene of offence prior to Kamlabai. On the arrival of Kamlabai-P.W.1 at the scene of offence ASI Kulkarni recorded her statement (FIR) and drew inquest panchnama of the scene of offence and sent the dead body to Satana for post mortem examination. At about 3.00 p.m. Z. V. Patil a police sub inspector of Jamkheda visited the village and took over the investigation from A.S.I. Kulkarni and accused Nos. 1 to 7 were arrested on the same day. Statements of witnesses were recorded on that day. Accused 8 and 9 were arrested on 15.6.1985. On the next day i.e. on 16.6.85, the police recovered the sticks and rope under panchnama at the instance of accused Nos. 2,8 and 9 and on 18.6.1985 accused No.10 was arrested. Thereafter investigation was taken over by PSI Sonawane who in due course submitted the charge sheet before the trial Judge.

4. The defence of the accused is one of total denial. The accused also made a suggestion to the effect that the deceased Govinda was murdered as he was caught red handed by his master Bhiva (P.W.4) having illicit relation with the wife of his master Bhiva Ahire on the previous night; and that dead body was placed on a cot much before sun rise and that Mohta Bhau had misled the police and falsely implicated the accused as they belonged to rival camp.

5. During the trial the prosecution has examined in all 7 witnesses, the star witness being Kamlabai (P.W.1) widow of the deceased Govinda Ahire, Bhiva Ahire (P.W.4) who is employer of the deceased and Mohta Bhau K. Ahire (P.W.6) who is distant nephew of P.W.4 Bhiva Ahire and Medical Officer Dr. S. M. Nawal (P.W.3) who opined that the death of Govinda is homicidal and that all the injuries which resulted in the death of Govinda could have been caused by sticks which have been recovered under the panchnama were also examined by the prosecution. As stated earlier the motive attributed by the prosecution to the accused for the murder of Govinda is that the deceased Govinda had left the party of his brothers and nephews and joined the opposite camp headed by Ahire.

6. The learned trial Judge after assessing the evidence of the said witnesses has reached the conclusion that the prosecution has failed to bring home the charges against the respondents and consequently acquitted them of the same vide impugned order. Hence this Appeal.

7. We have heard the learned counsel for the parties and perused the deposition of the prosecution witnesses and the impugned judgment and order and we are of the opinion that this appeal is devoid of any merit and deserves to be dismissed. In reaching the said conclusion we have been guided by the time honoured principles which this Court has to bear in mind in deciding whether interference in an appeal against acquittal is called for. This Court would be prompted to interfere in an appeal against acquittal if either the appraisal of evidence is grossly unreasonable or the impugned order of acquittal is vitiated by any manifest illegality resulting in failure of justice.

In our view, in the instant case, neither the appreciation of evidence by the trial Court can be said to be grossly unreasonable nor the impugned order and judgment of acquittal suffers from any illegality resulting in failure of justice. We feel that in the instant case the view taken by the trial Court of acquittal, is both plausible and proper. In paras 5 to 89 of the impugned order the trial Judge has given cogent reasons for acquitting the respondents on various grounds viz. that oral evidence of the prosecution witness is not reliable and convincing; that the medical evidence does not corroborate the oral evidence; that there is unreasonable delay of 4/5 hours in lodging in FIR which is not explained; that the recovery of the sticks with which the accused beat or allegedly thrashed the deceased has not been proved.

8. Kamlabai (P.W.1) is the wife, Baijabai(P.W.2) and Vijubai (P.W.7) are the close relatives of the deceased Govinda while Bhiva Ahire(P.W.4) and Motha Bhau (P.W.6) belong to the so called rival party. The first three witnesses being relatives and other two witnesses being allegedly from rival party the learned trial Judge has rightly held that their evidence has to be looked at with circumspection and caution. The conduct of the said three prosecution witnesses 1,2 and 7 who were eye witnesses was, to say the least, unnatural as they allegedly witnessed the said incident without showing any emotions or making any attempt to intervene and prevent Govinda from being assaulted. Being aware of the said lacunae in the evidence of the said witnesses the prosecution has belatedly attempted to fill in the said lacunae in the evidence of P.W.1-Kamlabai who before the Court stated that she tried to intervene but accused No.4 prevented her by catching her hands and giving her slaps. This clearly is an improvement as no such statement is found in the FIR, Ex.30 lodged by P.W.1-Kamlabai with the police. According to P.W.1 - Kamlabai she first went to the police station at Jamkheda and informed the police that her husband had been tied. From there she directly went to Nampur police station by ST Bus as the police station Jamkheda had not reduced her information to writing since the police inspector was not at the police station at that time. Yet by the time when she reached the scene of offence i.e. her village along with policemen from Nampur the sub-inspector from Jamkheda police station had already reached there. Although the incident is alleged to have taken place at about 6.00 a.m. P.W.1-Kamlabai returned from Nampur at 10.30 a.m. Obviously since the police inspector from Jamkheda police station was present at the scene before her return from Nampur it is safe to assume that the alleged incident was first reported to the Jamkheda police station by some person other than P.W.1-Kamlabai. From the evidence of P.W.6-Mohta Bhau Ahire it is seen that at about 6.00 p.m. he heard some commotion from the side of the house of the police patil-P.W.5. That time Kamlabai's children Pintoo and Baijabai came running to Bhiva's house weeping and informing her that their father had been tied and beaten. On reaching the spot P.W.6 found Govinda tied to an electric pole and accused persons beating him with sticks and fist blows. He witnessed the incident for about five minutes and then returned to the house as he was frightened. Thereafter from his house he saw the accused Nos.8,2 and 6 dragging Govinda and placing him on the cot in front of the house. Thereafter Govinda's son came and informed him that his father might have died. Accordingly at the request of his elder brother Shivaji, Mohta Bhau went to Jamkheda police station and informed the police about the incident and the police recorded his statement Ex.22 which is signed by him and which therefore would be the FIR.

As stated earlier the reaction of P.W.1-Kamlabai was most unnatural, which makes it doubtful whether she went to inform the police or that she even witnessed the incident. There are material omissions in the FIR. P.W.1-Kamlabai has not stated in the FIR that accused 2,5 and 10 beat Govinda with sticks or that accused No.4 held her arm and slapped her when she tried to intervene. This material omission makes the prosecution story that the accused assaulted and beat the deceased with sticks doubtful. Although in her evidence P.W.1-Kamlabai stated that Govinda was given fist blows kicks and also stick blows and dragged to a electronic pole where he was tied with rope and again assaulted the medical evidence does not corroborate the prosecution story as narrated by P.W.1-Kamlabai since the medical report does not show any injuries caused by any rope. If the deceased Govinda was tied to the pole by rope there would have been some ligature marks. The medical report does not disclose any ligature marks thereby debunking the prosecution story that Govinda was tied to a pole.

Reverting back to the unnatural conduct of the prosecution witnesses who are close relatives viz. P.W. Nos. 1, 2 and 7 it is seen that said witnesses have nowhere stated that the deceased Govinda resisted his attackers or raised any alarm or shouts in pain during the assault. The evidence of P.W.1 - Kamlabai shows that Govinda just kept silent while he was being dragged and assaulted mercilessly. Furthermore her evidence does not show that she raised any shouts or resisted while Govinda was being assaulted. It seems strange that the said witnesses, close relatives of the deceased, viz, his wife Kamlabai and his daughters Baijabai and Vijayabai, did nothing but simply stood as silent spectators while Govinda was being mercilessly assaulted and ultimately died of the injuries. The learned trial Judge while appreciating the evidence of prosecution witness P.W.1- Kamlabai has observed that since the information given by Mohta Bhau P.W.6 was reduced to writing (Ex.30) prior to that of Kamlabai the said writing Ex.30 would be the FIR. According to the prosecution this is not the FIR but the statement of P.W.1-Kamlabai (Ex.22) recorded at about 10.30 a.m. is the FIR. From the evidence of the witness it is seen that the incident took place around about 6.00 a.m. while FIR/statement of P.W.1 came to be recorded at 10.30 after a delay of about 4/5 hours. This delay has not been explained. P.W.1 has tried to say that she first went to Jamkheda police station but there was no police inspector at the said police station therefore her statement could not be recorded at Jamkheda police station and hence she went to Nampur police station. Her village is in between Nampur and Jamkhed police stations at a distance of about four miles. She states that she went directly to the outpost of Nampur but was delayed as she had to wait for the bus and, after missing two buses she proceeded in a tractor and could reach the outpost at Nampur at about 9.15 a.m. P.W.1 has not explained as to how she missed the bus or the reason for missing two buses and why she did not wait for third bus instead of taking the tractor. Furthermore in her cross examination P.W.1 has admitted that she had been to Jamkheda first and thereafter to Nampur. P.W.1 - Kamlabai wife of the deceased does not explain the delay in lodging the FIR.

As stated earlier the prosecution evidence on one hand consists of the oral evidence of near relatives of deceased viz. P.W.1, 2 and 7 and on the other of persons belonging to the rival party viz. P.Ws. 4 and 6 and also the police patil P.W.5. It is the prosecution case that Govinda was killed by the accused, his close relatives, since they did not like Govinda working for Bhiwa Ahire and owning allegiance to the rival party, on the other hand the defence of the accused who are brothers, nephews and close relatives of the deceased Govinda is that Govinda belonged to the rival party and was in service of P.W.4 - Bhiwa Ahire a rival of the accused. According to them Bhiwa Ahire's wife was having illicit relations with deceased Govinda and on the night prior to the alleged incident Govinda was caught red handed while committing adultery with Bhiwa's wife and therefore Bhiwa had killed him in the open spot where stones were found lying in a heap. The evidence therefore of P.W.4-Bhiwa Ahire and P.W.6-Mohta Bhau Ahire has also to be looked at cautiously, if not with suspicion. However the police patil of the village P.W.5-Chinda Ahire has come out with a totally different motive for the murder. According to him accused No.1 alone brought Govinda to the pole by dragging him by his hand and there P.W.5 asked accused No.1 as to what was the matter and accused No.1 replied that Govinda had committed theft of a starter. His evidence does not show that other accused persons had joined accused No.1 at Padvi or on the way from Padvi to the pole. According to him when the beating was in progress he returned to his house for tea. He has admitted that he did not protest or ask the accused persons not to beat Govinda nor did he take any steps to separate them. P.W.5 has shown total unconcern about the safety of a fellow villager and as it appears he was more concerned with going to his house for a cup of tea. To him it seemed that the entire incident was just a storm in a tea cup. Being police patil of the village his conduct was most unnatural. Therefore his evidence does not stand scrutiny. The motive for the murder of Govinda assigned by the accused makes the oral evidence of Mohta Bhau P.W.6 and Bhiwa Ahire P.W.4 highly suspect. According to Kashinath Ahire (Mohta Bhau P.W.6) he went to the police station at Jamkheda and informed the police and the police came to the scene of offence. On the other hand according to P.W.1 she had been to Jamkheda police station and although concerned police inspector was not present she left information there of the incident and thereafter proceeded to Nampur police station and she came to the scene of offence along with Nampur police personnel but in the meantime the police from Jamkheda police station already present. Clearly there seems to be much more to the incident than meets the eye. The entire substratum of the prosecution case collapses when we consider the evidentiary value of the oral testimony given by one set of witnesses the close relatives of the deceased viz. P.Ws.1, 2 and 7 and the other set consisting of evidence of members of the rival party P.W.4-Bhiwa Ahire and P.W.6 Motha Bhau. The motive attributed for the assault on Govinda by the prosecution is that he had deserted his brothers and nephew and joined rival party of Ahires and therefore his brothers assaulted him which assault resulted in his death. On the other hand the motive attributed by the accused for murder of Govinda is the alleged illicit relation which Govinda had with the wife of Bhiwa Ahire-P.W.4. The delay in filing the FIR and also the inherent contradictions in the evidence of the said witnesses and the medical evidence not corroborating the oral evidence leaves one with little doubt that the prosecution has _

9. In the light of the evidence referred to above and other reasons mentioned in the impugned judgment the learned trial Judge has rightly acquitted the respondents-accused of the offences punishable under sections 147,148,149,302 and 304 of the I.P.C.

10. For the reasons aforesaid, we confirm the order of acquittal dated 19.11.1985 passed by the Additional Sessions Judge, Nashik in Sessions Case No.112 of 1985 in favour of the accused Motiram Daulat Deore, Jagannath Deochand Ahire, Narayan Deochand Ahire, Pundalik Shankar Ahire, Baliram Dodha Shinde, Balu Daulat Ahire, Santosh Sukdeo Ahire, Krishna Madau Ahire, Ramdas Trimbak Ahire, and Keshav Daulat Daore. Appeal dismissed. Bail of Respondents-accused stands cancelled and sureties discharged.

In view of the order passed above Criminal Revision Application No.26 of 1986 does not survive and the same stands dismissed.

Appeal dismissed.