2006 ALL MR (Cri) 719
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

J.N. PATEL AND R.C. CHAVAN, JJ.

State Of Maharashtra Vs. Yuoraj S/O. Jagannath Choudhari & Anr.

Criminal Appeal No. 327 of 1995

22nd September, 2005

Petitioner Counsel: Shri. T. A. MIRZA
Respondent Counsel: Smt. SMITA DESHPANDE

Criminal P.C. (1973), S.378 - Penal Code (1860), S.302 - Appeal against acquittal - Murder case - Acquittal of accused by trial Court holding that complicity of the accused was not proved - View taken by trial Court, probable - High Court would not be justified in disturbing the acquittal recorded by the trial Court. (Para 17)

JUDGMENT

R. C. CHAVAN, J.: - This appeal takes exception to acquittal of the respondents recorded by the learned Sessions Judge, Wardha, for offences punishable under Sections 302 and 201 read with Section 34 of the Penal Code.

2. Facts, which led to prosecution of the respondents, are as under :

3. Deceased Baba Pathade was to son of Rajaram Pathade. Rajaram had another son by name Ganesh. Rajaram had been allotted five acres of land. He wanted to sell it to one More, brother-in-law of accused No.1 Yuoraj. Wife of Ganesh, son of Rajaram, expressed willingness to purchase this land. This led to cancellation of agreement to sell in favour of More, brother-in-law of accused No.1. Hence, accused No.1 had a grudge against Rajaram and his family.

4. It is further alleged by the prosecution that deceased Baba was vending illicit liquor. Both the accused were his customers. On 13-10-1993 at about 11 to 11.30 a.m., Baba got drunk and had gone to the house of one Narayan Choudhari with a liquor bottle. Both the accused asked Baba to serve them liquor. The accused complained of its poor quality and demanded more. An exchange of words was followed by a fight. Both the accused and Baba Pathade went towards the house of Baba. Accused No.1 asked Baba to come to accused No.1 for lunch. Baba accordingly went towards the house of accused No.1. A quarrel took place between Baba and accused No.1. Accused No.1 Yuoraj brought a stone and pelted it at Baba. Baba was seriously injured and ultimately succumbed to his injuries. Accused No.2 Manik, who was with accused No.1, ran away. Accused No.1 Yuoraj dragged the body out of his house. Accused No.1 pelted stones at the body of Baba. Police Patil was informed. Accused No.1 Yuoraj allegedly confessed before Police Patil that he had committed the murder. Police Patil informed the police, whereupon an offence was registered.

5. In the course of investigation, police performed inquest and sent the dead body for post-mortem examination. They performed panchanama of spot, recorded statements of witnesses, seized incriminating articles, sent them to the Forensic Science Laboratory and arrested and charge-sheeted the accused. The learned Judicial Magistrate First Class, Pulgaon, who received the charge-sheet, committed the case to the Court of Sessions at Wardha. The learned Sessions Judge, Wardha, charged both the accused of offences punishable under Section 302 and 201 read with Section 34 of the Penal Code. Both the accused pleaded not guilty and hence were put on trial. The prosecution examined as many as 17 witnesses in its attempt to bring home the guilt of the accused. The defence of accused is that of denial. After considering the prosecution evidence in the light of defence raised, the learned Sessions Judge came to hold that the offences were not proved and hence proceeded to acquit both the respondents. Aggrieved thereby, the State has preferred this appeal.

6. We have heard Adv. Shri. T. A. Mirza, the learned Additional Public Prosecutor in support of the appeal, and Smt. Smita Deshpande, who has been appointed to defend the respondents. With the help of both the counsel, we have gone through the evidence on record in order to find out whether the learned Sessions Judge was in error in holding that the guilt of the accused was not proved.

7. Dr. Tayade, who conducted the post-mortem examination on the body of Baba Pathade, was examined as PW 14. He stated that he found four lacerated wounds on the body of Baba, which were all ante mortem and caused within 24 hours of examination. There was fracture of Tibia and Fibula on the left side of leg, mandible on the left side and nasal bone. On dissection, Dr. Tayade found fracture of skull bone. According to Dr. Tayade, the cause of death was shock due to injuries to vital organ like brain. Four stones had been referred to Dr. Tayade for opinion as to whether the injuries could be caused by those stones. Dr. Tayade had opined that the injuries could have been caused by those stones. Though Dr. Tayade in his examination-in-chief stated that external injury No.1 was in ordinary course sufficient to cause death, in cross-examination, he stated that, that injury without the internal damage alone was not sufficient in ordinary course to cause death. It may thus be seen that the victim met with death on account of stone pelting. He proved his notes of post-mortem examination at Exhibit 17 and the opinion in respect of the stones at Exhibit 48. He had also examined accused No.1, but did not find any external injury and had issued a certificate at Exhibit 49 to the effect.

8. PW 9 Amit and PW 10 Nita were supposed to have witnesses the incident. They, however, turned hostile and refused to support the prosecution. Thus, there is no eye-witness to state that any of the accused persons injured the victim in order to cause his death.

9. Having been denuded of support from eye-witnesses, the prosecution must rest on circumstantial evidence to connect the accused to time. The motive of the assault on Baba is stated to be a frustrated attempt of brother-in-law of accused No.1 to purchase five acres of land from Baba's father PW 8 Rajaram. According to PW 8 Rajaram, his other son Ganesh was ready to purchase this five acres of land. The contract was cancelled because of desire of Ganesh to acquire it. Therefore, it is not clear as to how cancellation of this contract would lead to accused No.1 Yuoraj attacking Baba, since Rajaram and both his sons had already separated. The motive is too far fetched to justify any assault by accused No.1 on Baba.

10. PW 11 Ashok stated that when deceased Baba was sitting at the house of one Narayan Choudhari, both the accused came, gave ten rupees of Baba and consumed liquor, which Baba served. There was an exchange of words on account of quality of liquor and a demand by accused to serve more. He stated that both the accused took Baba to the house of accused No.1 Yuoraj. He stated that he then went to field and when he came back, he saw the dead body of Baba lying in front of the house of accused No.1 Yuoraj. He admitted in cross-examination that several prosecution cases were filed against Baba Pathade, but stated that he did not know whether Baba was imprisoned for six months and had also cases of assault, etc. against him.

11. PW 13 Nitin, victim's son, who too turned hostile, stated that nothing took place in his presence. On being cross-examined by the prosecutor, he stated that both the accused had come to his house and they had consumed liquor. He stated that the accused asked Baba to come the house of accused No.1 Yuoraj for taking meals. Thus, the evidence of these two eye-witnesses would indicate that deceased Baba ws last seen together in the company of these two accused.

12. PW 15 Ganesh, brother of Baba, who was supposed to be the cause of cancellation of contract with brother-in-law accused No.1, stated that on learning that his brother was murdered, he went to the spot and found, the dead body of Baba lying at the spot. He stated that accused No.1 Yuoraj was pelting stones at Baba Pathade. He stated that on his enquiry, the accused asked him to go to his house.

13. PW 16 Yogesh is nephew of deceased Baba. He stated that accused No.1 Yuoraj had brought Baba outside the house of Yuoraj and then pelted stones at Baba. This would be contrary to the story that Baba was done to death inside the house and then his body was pulled out. In any case, the fact that Yogesh saw accused No.1 Yuoraj bringing Baba Pathade outside the house, is missing in the statement of this witness. In view of this, the story of accused No.1 Yuoraj having been seen with Baba soon after the incident, does not receive any reliable support from the evidence of the above said witnesses.

14. PW 1 Ukandrao, Police Patil, who lodged the FIR, stated that accused No.1 Yuoraj said to him that he had committed murder of Baba and that the Police Patil could do whatever he pleased. However, the learned Sessions Judge rejected this part of the evidence, since the recipient of the information being the Police Patil, the statement to him was not admissible. PW 1 Ukandrao's report to Police at Exhibit 28 and formal FIR at Exhibit 29 are based on the information which received from the people, who had gathered. Thus, he has nothing personal to contribute so as to unfold the mystery of death of Baba.

15. PW 2 Pradeep was supposed to have been a witness on memorandum and seizure. The panchanama Exhibit 31 proved by this witness shows that on interrogation, accused No.1 Yuoraj made a statement and property was recovered in consequence of such statement. It seems that the accused had concealed blood-stained stones, a sandle belonging to Baba and another belonging to Manik, in his house. PW 2 Pradeep, however, stated that all these articles were at the spot and they were seized at the spot. He does not state that the accused disclosed any information or that the property was seized in consequence of such disclosure.

16. PW 3 Baban Kordey, PW 4 Baban Pawar, PW 5 Himmat Thakare, PW 6 Haridas Zatale and PW 7 Haridas Ramteke, all panchas on various panchanamas drawn up in the course of investigation, have turned hostile.

17. Failure of the eye-witnesses to state that they saw any of the accused persons assaulting the victim and failure of the prosecution to establish a chain of circumstances, which would have pointed to complicity of the accused in injuries, which led to death of Baba, have rightly persuaded the learned Sessions Judge to hold that the complicity of the accused is not proved. It is surprising that though the police chose to charge-sheet accused No.2 Manik also, there is absolutely no iota of evidence in respect of accused Manik. The evidence in respect of accused No.1 Yuoraj is grossly deficient. Therefore, since the view taken by the learned Sessions Judge is probable, we would not be justified in disturbing the acquittal recorded by the learned Trial Judge.

18. In view of this, the appeal fails and is dismissed. Bail bonds, if any, furnished by the respondents shall stand cancelled.

Appeal dismissed.