Research › Search › Judgment

Bombay High Court · body

2003 DIGILAW 281 (BOM)

Paduji v. State of Maharashtra

2003-03-06

P.S.BRAHME, R.G.DESHPANDE

body2003
P.S. Brahme, J.— We propose to dispose of both these appeals by this common judgment as the appeals are arising out of the judgment and order passed by the Additional Sessions Judge, Akola in the Sessions Trial No. 204 of 1996 delivered on 31st December, 1997. 2. Appellant Paduji s/o Amruta Thombare (original accused No. 1) and the respondents Sitaram Waman Parkhe (original accused No. 2), Sau. Sunderabai w/o. Sitaram Parkhe (original accused No. 3), Balu Sitaram Parkhe (original accused No. 4) and Ranju @ Ranga Sada Thombare (original accused No. 5) were tried before the Additional Sessions Judge, Akola in Sessions Trial No. 204 of 1996 for the offences punishable u/ss. 147, 148, 307 and 302 r/w section 149 of the Indian Penal Code for committing murder of one Vithoba Bhagwan Shingare and for attempt to commit murder of Dadarao (P.W. 7). The learned Additional Sessions Judge, by his judgment and order dated 31st December, 1997, acquitted respondents Sitaram, Sunderabai, Balu and Ranga of the offences with which they were charged with and convicted the appellant Paduji of the offences u/ss. 302 and 324 of the Indian Penal Code and sentenced him to suffer impri-sonment for life and to pay fine of Rs. 2, 500/- in default to suffer R.I. for six months and was sentenced to suffer R.I. for two years and to pay fine of Rs. 1,000/- I/d. to undergo R/I, for three months respectively. 3. Criminal Appeal No. 14 of 1998 has been filed by the appellant Paduji challenging his conviction and sentence, while criminal appeal No. 124 of 1998 is filed by the State of Maharashtra against the respondents challenging the judgment and order acquitting the respondents. 4. While disposing of both the appeals on 6th March, 2003, we have said that the reasons would follow. We are stating the reasons as under: 5. The prosecution case, which gave rise to these proceedings, may be stated, in brief, as follows: The respondent Sitaram is hus-band of respondent No. 2 Sunderabai, while respondent No. 3 Balu is the son of Sitaram and Sunderabai. The appe-llant Paduji is the uncle of respondent No. 4 Ranju @ Ranga. They are distant relatives of respondent Sitaram. They are resident of village Shirala. The appe-llant Paduji is the uncle of respondent No. 4 Ranju @ Ranga. They are distant relatives of respondent Sitaram. They are resident of village Shirala. Deceased Vithoba Bhagwan was brother of Sahebrao (P.W. 1) Dadarao (P.W. 7), Vijay (P.W. 8) and Raju (P.W. 9) are nephews of deceased vithoba and P.W. 1 Sahebrao. They are resident of village Hiwarkhed. The witness Raju (P.W. 9) was engaged as a labourer by deceased vithoba to graze his sheep and she goats. All these persons are from shepherd community. As such, they stay in camps in different fields where their sheeps and she-goats are engaged for sitting. At the time of occurrence. Sitaram, Sunderabai, the victim vithoba with his wife and others were with their respective sheeps and goats indepen-dently camping in the field of Shivrao Deshmukh of village Tamasi. Prior to the occurrence, respondent Balu had assaulted the witness Raju (P.W. 9) when the quarral took place on account of some sheeps and she-goats, which were grazing, got mixed with sheeps and goats of respondent Balu. therefore, Raju (P.W. 9) went to respondent Sunderabai and complained that her son i.e. respondent Balu assaulted him. However, respondent Sunderabai did not pay any heed to his complaint, but she retorted saying that next day he (Balu) would kill him (Ranga)-Sahebrao, Dadarao, and Vijay came to know about this incident of assault by Balu on witness Raju. 6. On 27.2.1996, Sahebrao, Dadarao and Vijay, in the evening, went to the camp of deceased Vithoba just to settle the differences which arose due to guarrel between Balu and Ranga. They stayed for whole night in the camp of Vithoba. In the morning, at about 7.00 a.m., as per prosecution case, Sunderabai, on seeing Sahebrao, Dadarao and Ranga in the camp of victim Vithoba, gave a call to vithoba expressing that he had called those persons (Prosecution witnesses Sahebrao, Dadarao and Ranga) to assault her. Not only that, but she provoked Vithoba by saying that if he had daring, he should come forward. As a natural instinct, as it could be, the victim vithoba, On hearing what was uttered by Sunderabai and realising the call, the victim Vithoba went ahead and expressed with gesture saying” Do you intend to assault me ?” As a natural consequence of these exchange of words and wrangle. As a natural instinct, as it could be, the victim vithoba, On hearing what was uttered by Sunderabai and realising the call, the victim Vithoba went ahead and expressed with gesture saying” Do you intend to assault me ?” As a natural consequence of these exchange of words and wrangle. Sunderabai, ultimately, rushed with an axe in her hand and dealt a blow by it on the victim vithoba which resulted into a bleeding injury on his neck, that time, the appellant, Paduji went running from the camp of Sunderabai and after taking the axe from the hands of Sunderabai, dealt a blow with it on the head of victim Vithoba. Vithoba started crying and shouted as soon as he came to be assaulted. Hearing his shouts and cries, Sahebrao, Dadarao and Vijay rushed to the place of occurrence to save him and while Sahebrao and Dadarao were lifting vithoba, the appellant Paduji dealt a blow of the axe on the head of witness Dadarao. Dadarao escaped and went to his field. Sahebrao and Vijay went there to see him in injured condition. Respondent Sitaram was assaulting Vithoba with stick. Respon-dent Balu and Ranga assaulted Dadarao with sticks. 7. Sahebrao, with the help of Vijay, carried Vithoba on his motor cycle to police station, Balapur. Their, Namdeo Adhole, A.S.I. (P.W. 6) was present. The Victim Vithoba himself gave report (Exh. 42) and on that report, offence was registered at Crime No. 37 of 1996 for the offences punishable u/ss. 324, 506 r/w 34 of the Indian Penal Code. The investigation in that crime was assigned to police Head Constable Narayan Amankar (P.W. 5). 8. Police Head Constable Aman-kar (P.W. 5) visited the place of occurrence. He found Dadarao lying injured in the field. He sent him for treatment. He made spot panchanama (Exh. 30). The appellant Paduji produ-ced the axe which came to be seized under panchanama Exh. 31. Respon-dent Sitaram produced the stick which came to be seized under Panchanama Exh. 32 in the presence of panch witness Ram Hari (P.W. 2). 9. On the next day i.e. on 28th February, 1996 the victim vithoba, while undergoing treatment in the hospital, succumbed to the injuries. Consequent upon his death, offence for murder was registered and the dead body of vithoba was sent for post mortem after drawing inquest pancha-nama Exh. 23. 32 in the presence of panch witness Ram Hari (P.W. 2). 9. On the next day i.e. on 28th February, 1996 the victim vithoba, while undergoing treatment in the hospital, succumbed to the injuries. Consequent upon his death, offence for murder was registered and the dead body of vithoba was sent for post mortem after drawing inquest pancha-nama Exh. 23. In the course of investi-gation, police Constable Amankar seized one stick from respondent Balu under panchanama Exh. 33. The further investigation was carried out by P.S.I. Sanjay Dhumal (P.W. 11) as the offence of murder was registered. 10. Dr. Shamsunder Sonone carried out autopsy on the dead body of Vithoba and prepared post mortem report Exh. 39. He noticed external injuries which he has categorically mentioned in column No. 17 of the post mortem report as under: (1) Multiple abrasions on face varying in size and shape. (2) Stitched wound on occipital region in centre oblique in position about 2-1/2" in length. These injuries were anti mortem The doctor also found the following internal injuries:— 1. stitched wound on occipital region in the centre on left side oblique in position about 2-1/2" in length. 2. Fracture of temporal bone in centre, oblique in position about 2-1/2" in length; bleeding under brain matter present. 11. Dr. Sonone (P.W. 4) has opined that death of Vithoba was caused due to head injury described in Col. No. 17. particularly injury No. 2 and the injuries Nos. 2 and 3 described in Col. No. 19. He also stated in his evidence before the Court that the internal injury Nos. 2 and 3, in the ordinary course of nature, were sufficient to cause death. Though it was suggested to him by the defence in cross-examination that the injuries found on the body of victim Vithoba would be possible by fall on hard and rough substance, he stoutly denied the suggestion. He has specifically stated that there was no impact mark on the bone and that a blow by hard substance can cause, fracture of occipital region, which he has found. He, however, did not find any external injury on the temporal region of the head. He has specifically stated that there was no impact mark on the bone and that a blow by hard substance can cause, fracture of occipital region, which he has found. He, however, did not find any external injury on the temporal region of the head. Therefore, it was contended by the defence that as there was no external injury found on the temporal region corresponding to the fracture noticed in the temporal region (injury No. 3), it be inferred that no blow was given on the head of the deceased. 12. P.S.I. Dhumal (P.W. 11) conducted further investigation in the matter in which he seized blood stained clothes of respondent Sunderabai under Panchanama Exh. 36, as also, stick produced by respondent Ranga under Panchanama Exh. 34 and the Clothes on the person of the deceased under the panchanama Exh. 36. He sent all the seized articles to the chemical Analyser vide his letter Exh. 55. After receiving the C.A.’s report Exhs. 56 and 57 and completing investigation, he filed charge sheet against the accused i.e. the appellant and respondents. As the offence u/s. 302 of the Indian Penal Code was exclusively triable by the court of Sessions, the court below committed the case to the court of Sessions. 13. Before the Sessions court, the accused stood charged for the offences as indicated above vide charge Exh. 12. They pleaded not guilty. Their defence is of total denial. They have stated that they have been falsely implicated. Their contention was that respondent Sunderabai had lodged report on the very day against the deceased Vithoba, Dadarao (P.W. 7 ) and Raju (P.W. 9) on the allegations that on 27.2.1996, in the morning, Vithoba, Dadarao, Ranga and others had come to her camp and apprehending that they would assault her, she ran towards a Neem tree and that, they followed her and ultimately, she came to be assaulted with an axe and sticks and in that assault, she sustained bleeding injuries on her head and for that, she lodged report to the police station, on the basis of which, offence was registered vide crime No. 38 of 1996 in the police station against deceased Vithoba, Dadarao, Ranga and others. It is also a matter of record that, on the basis of the report, charge sheet was filed before the judicial Magistrate, first Class, Balapur. It is also a matter of record that, on the basis of the report, charge sheet was filed before the judicial Magistrate, first Class, Balapur. The trial Court, in its judgment, observed that the counsel appearing for the accused had brought to his notice that the case, in which charge sheet was filed on the basis of the report given by respondent Sunderabai, was committed and assigned to his court for trying the same along with the Sessions Trial. It appears that the case was tried together with the Sessions Trial by the same judge, but nothing is brought on record atleast in this appeal nor the counsel for the parties could enlighten this court as to in what manner that criminal case was decided. Nevertheless, the fact that a criminal case was filed on the basis of the report lodged by respondent Sunderabai and the witnesses in this case and the deceased Vithoba were tried by the Court has some bearing and it is also relevant while considering the case against the respondent. 14. At the trial, the prosecution examined in all eleven witnesses including the eye witnesses Sahebrao (P.W. 1), Dadarao (P.W. 7), Vijay (P.W. 8) and Raju (P.W. 9). The learned trial Judge, considering the oral and documentary evidence, accepted the prosecution case as against the appellant Paduji and found that the deceased Vithoba was done to death. As a result of assault with axe by the appellant Paduji and that the witness Dadarao came to be assaulted by appellant Paduji with axe. The trial Court accepted the evidence of eye witnesses so far as assault on the victim and Dadarao by the appellant Paduji is concerned. But, at the same time, the trial Court discarded evidence of eye witnesses so far as assault by the respondents is concerned. That is how, the appellant Paduji came to be con-victed and sentenced and respondents came to be acquitted of the offences. This judgment of the trial court is under challenge before this court in these two appeals. 15. Before we advert to the submissions of the learned A.P.P. and the counsel for the accused, it would be appropriate to state admitted facts in this matter. Victim Vithoba died in the hospital while undergoing treatment. He had sustained injuries and as opined by the medical officer Dr. Shamsunder Sonone, he died homicidal death. 15. Before we advert to the submissions of the learned A.P.P. and the counsel for the accused, it would be appropriate to state admitted facts in this matter. Victim Vithoba died in the hospital while undergoing treatment. He had sustained injuries and as opined by the medical officer Dr. Shamsunder Sonone, he died homicidal death. Defence has not disputed the factum of injuries he had sustained. Before the trial Court, defence tried to contend that the injuries were caused as a result of fall. But the Medical officer has candidly denied the suggestion and the trial Court has also rightly rejected the contentions of defence and has come to the conclusion that the deceased died homicidal death and it amounts to murder within the purview of clause (3) of section 300 of the Indian Penal Code. As regards the witness Dadarao, taking into consideration the injuries sustai-ned by him, as reflected in the injury report Exh. 51 and the evidence of Dr. Bhalchandra Deshmukh (P.W. 10), who examined the witness Dadarao, the trial Court reached to the conclusion that the witness Dadarao sustained injury as a result of assault on him with two weapons, sharp and hard blunt object and injury was grievous. This fact that witness Dadarao sustained grievous injuries is not disputed by the defence. The trial court has found that prosecu-tion has failed to establish the offence u/ss. 147, 148, 307 and 302 r/w. 149 of the Indian Penal Code. Even as regards the appellant Paduji, the trial Court has recorded his conviction for the offences u/ss. 302 and 324 of the Indian Penal Code simplicitor. This is very significant in the background that, in the trial court, the appellant Paduji was not charged for the offences u/ss. 302 and 324 of the Indian Penal Code independently or in the alternative. As stated earlier, appellant Paduji was brought along with respondents for the offences u/ss. 302 and 324 of the Indian Penal Code r/w section 149 of the Indian Penal Code. Therefore, the learned counsel for the appellant was right in his submission that the conviction of the appellant Paduji barely for the offences u/s. 302 and 324 of the Indian Penal Code in absence of independent and alternate charge under these sections is erroneous. 302 and 324 of the Indian Penal Code r/w section 149 of the Indian Penal Code. Therefore, the learned counsel for the appellant was right in his submission that the conviction of the appellant Paduji barely for the offences u/s. 302 and 324 of the Indian Penal Code in absence of independent and alternate charge under these sections is erroneous. In the absence of alternate charge for the offence u/s. 302 and 324 of the Indian Penal Code, the appellant should not have been convicted for those offences. 16. Mr. Daga, the learned counsel appearing for the appellant Paduji, vehemently submitted that the trial Court has not taken into account the counter case registered on the comp-laint of respondent Suderabai in respect of the incident of assault on her at the same time and place. That the appreciation of evidence by the trial Court, particularly of the witnesses who claimed to be eye witnesses to the incident, is totally improper. The trial Court has acquitted the respondents including Sunderabai for the charge as to assault on victim Vithoba and wit-ness Dadarao, discarding the evidence of eye witnesses. But, at the same time, the trial Court has accepted the evidence of these eye witnesses so far as it related to the act performed by the appellant Paduji in assaulting the victim vithoba and witness Dadarao. The claim of witness Dadarao before the Court that the appellant Paduji assaulted Vithoba with axe has been totally shattered in his cross-examination and he has admitted in clear words that he has not stated about that fact in his statement recorded by police. In addition to that, in the report which victim vithoba lodged in the police Station, there is no whisper even that the appellant Paduji assaulted him with the axe. The medical evidence clin-chingly goes to show that there was external injury on the temporal region of the head of the deceased. If that is so, the claim of eye witnesses that the victim was assaulted on his head with the axe by the appellant Paduji is unsustainable. In that context, the medical evidence is contrary or the claim of witnesses who claimed to be eye witnesses in his conflict with the medical evidence. 17. If that is so, the claim of eye witnesses that the victim was assaulted on his head with the axe by the appellant Paduji is unsustainable. In that context, the medical evidence is contrary or the claim of witnesses who claimed to be eye witnesses in his conflict with the medical evidence. 17. The learned counsel further submitted that the trial court has not taken into consideration the discre-pancies in the statements of the wit-nesses regarding assault on vithoba and Dadarao when the version of the prosecution witnesses itself was negativing the prosecution case regar-ding occurrence of the incident. It is pointed out that, admittedly, the respondent Sunderabai came to be assaulted at the time and place of the occurrence and she sustained injuries and for that purpose, the witnesses including deceased vithoba came to be prosecuted. Prosecution has failed to explain the injuries sustained by respondent Sunderabai. In addition to that, prosecution suppressed the fact that such incident of assault on Sunderabai had taken place at the same time and place, when it was undisputed fact and further it is borne out by the material on record that Sunderabai came to be assaulted and she had sustained severe injuries on her person in that assault. If that is so, the learned counsel submitted that prosecution has not placed before the court the true story which materially affects prosecu-tion case against the appellant and respondents. The learned counsel submitted that the evidence on record is not at all sufficient to establish beyond reasonable doubt that the appellant assaulted the victim with the axe and that, he was responsible for committing murder of victim vithoba. The evidence on record is also not sufficient to establish that the appellant was the person who caused injuries to the witness Dadarao. The learned counsel for the appellant submitted that the conviction recorded against the appe-llant cannot stand and as such, the appeal preferred by him should be allowed and the appellant be acquitted. 18. Mr. Loney, the learned A.P.P. supported the judgment of the trial court holding the appellant guilty for committing murder of Vithoba and also for his conviction u/s. 324 of the Indian Penal Code for causing grievous injury to witness Dadarao. He submitted that presence of witnesses Sahebrao, Dadarao, Vijay and Raju at the place of occurrence was not disputed. The report Exh. He submitted that presence of witnesses Sahebrao, Dadarao, Vijay and Raju at the place of occurrence was not disputed. The report Exh. 42 given by the victim vithoba in the police Station does speak of assault by the appellant Paduji with the axe and the medical evidence, particularly internal injury No. 3, described in Col. No. 19 of the post mortem report unequivocally supports the claim of prosecution witnesses that the appe-llant assaulted the victim vithoba with the axe. Therefore, the omission in the evidence of witness Dadarao about assault on the victim vithoba by the appellant has to be eschewed without causing damage to the testimony of witness Dadarao. 19. As regards acquittal of respondents, the learned A.P.P. vehemently submitted that the trial court has not appreciated the evidence of witnesses in correct prospective so far as assault on victim vithoba by the respondents is concerned. He pointed out that though in the report Exh. 42 deceased has not given the details of assault on him but other accused, that by itself does not bring out any infirmity and for that purpose, consistent and cogent evidence of eye witnesses has to be taken into consideration and further medical evidence supports the claim of eye witnesses that the respondents or atleast respondent Sunderabai has assaulted the victim with the axe and she was the author of the injury which deceased had sustained on his head. As regards the discrepancy between ocular evidence and medical evidence, the learned A.P.P. placed reliance on the decision of the Apex Court to emphasize his submission that any omission on the part of the Medical officer will not affect the ocular version of the witnesses if believed. As regards the injuries sustained by respondent Sunderabai at the time and place of occurrence, the learned A.P.P. Sub-mitted that non-disclosure of the same by prosecution by itself is not sufficient to discard prosecution case when presence of eye witnesses and the accused Sunderabai and Paduji was not disputed. Mr. Loney, the learned A.P.P. submitted that merely because res-pondent Sunderabai came to be assaulted at the time of incident and that she sustained injuries, that by itself is not sufficient to out weigh the prosecution case. The trial court has committed an error in acquitting the respondents when the fact that the respondents assaulted the victim Vithoba and the injured Dadarao has been clinchingly established. The trial court has committed an error in acquitting the respondents when the fact that the respondents assaulted the victim Vithoba and the injured Dadarao has been clinchingly established. It was also established that the respondent Sunderabai was aggressor and she was armed with the axe. It was she who first made gesture and gave call to the victim Vithoba and as a result of that, the victim Vithoba came to be assaulted first with the axe that was in the hand of respondent Sunderabai. He also pointed out that defence has elicited from the prosecution witnesses or evidence on record that any one from the side of victim and injured Dadarao was armed with the weapon at any time when the incident took place. If that is so, it totally rules out the possibility of justification on the part of respondents in making assault on the victim and injured Dadarao in exercise of right of private defence. He, therefore, urged that the appeal preferred by the State should be allowed and respondents be convicted. 20. After considering the evidence of eye witnesses and also the report Exh, 42 given by the victim vithoba in respect of assault on him by the appellant Paduji and others, on our assessment, independent as it could be, we have no hesitation in observing that presence of all the eye witnesses, as also, that of appellant Paduji and respondents at the time and place of occurrence is admitted as it is not specifically denied by the defence and it is also borne out from the evidence on record. It is also not disputed that the victim Vithoba came to be assaulted. He sustained injured which were noticed on his person by the medical officer and which are described in the post mortem report and he has sustained these injuries at the time and place of occurrence. The external injury on the occipital region as described in Col. No. 17 at Sr. No. 2, had corresponding internal injury as described at Sr. No. 2 in Col. No. 19 and that is fracture of occipital bone about 4 inches in length. In addition to that, there was internal injury described at Sr. No. 3 in Col. No. 19 of the post mortem report which was fracture of temporal bone in centre oblique in position about 2 1/2" in length. No. 2 in Col. No. 19 and that is fracture of occipital bone about 4 inches in length. In addition to that, there was internal injury described at Sr. No. 3 in Col. No. 19 of the post mortem report which was fracture of temporal bone in centre oblique in position about 2 1/2" in length. There was also bleeding present under the brain matter. The Medical Officer Dr. Shamsunder Sonone (P.W. 4) has clinchingly opined that cause of death was due to head injury described in Col. No. 17 and internal injuries at Sr. Nos. 2 and 3 described in Col. No. 19. According to him, both the internal injuries Nos. 2 and 3 described in Col. No. 19 of the post mortem report Exh. 39 were found sufficient, in the ordinary course of nature to cause death. It, therefore, follows that the victim Vithoba, when assaulted, sustained blows with the stick and the axe on the occipital and temporal region of the head and consequent upon that, sustained injuries on the occipital bone as well as temporal bone. The Medical officer has categorically denied the suggestion of the defence that the injuries cannot be caused by the axe. He has also stated that the fracture causes due to forcible flow of hard substance. There was no external injury to the temporal bone. It is not always necessary that on finding such fracture, there must be corresponding external injury. He was also emphatic that internal injury Nos. 1 and 2 cannot be caused by fall on hard substance. The trial Court has, on the basis of the medical evidence. rightly come to the conclusion that the claim of the defence that the victim Vithoba sustained injuries by fall was not correct. The finding by the trial court that the victim vithoba died homicidal death on account of injuries sustained, more particularly the injuries caused on the occipital and temporal regions of head stands concluded and as stated earlier, defence has not disputed this fact. 21. The controversy, however, is about authorship of the injuries sustained by the victim vithoba. The appellant has challenged in this appeal the finding of the trial court that the head injury was caused by the appellant by inflicting blow with the axe. 21. The controversy, however, is about authorship of the injuries sustained by the victim vithoba. The appellant has challenged in this appeal the finding of the trial court that the head injury was caused by the appellant by inflicting blow with the axe. It is needless to say that the trial court has accepted the ocular testimony of eye witnesses namely Sahebrao (P.W. 1), Dadarao (P.W. 7), Vijay (P.W. 8) and Ranga (P.W. 9). The trial court has also placed reliance on the statement of the victim in the report Exh. 42 in which the victim has stated that all the four non-applicants whose names have been disclosed in the report, have assaulted him with the sticks on his head and backward part of the head. He has also made a general statement that he has sustained injury below left eye caused by axe and due to assault, his head was broken and he was bleeding through his eye and injury on the head. It is, no doubt, true that eye witnesses have stated that the respondents Sunderabai, who was holding axe in her hand, first dealt a blow causing injury on the neck of the deceased and then the appellant Paduji, after taking the axe from Sunderabai, dealt a blow on the head of Vithoba. The witnesses also stated that rest of the respondents assaulted the victim with sticks on his head. 22. The witness Dadarao was eye witness to the incident and he was victim of the assault. In his evidence, he came out with the case that Sunderabai provoked Vithoba and called him. As a consequence of that provocation, vithoba went ahead towards Sunderabai and as soon as he reached near her, she gave a blow of the axe on the neck of vithoba and when this witness heard cries of Vithoba, he went there and while he was lifting Vithoba, the appellant Paduji came there and that time, Sunderabai gave the axe to Paduji and the latter, after taking the axe from her, hit it on the head of victim Vithoba and then gave a blow with the axe on the head of witness Dadarao. So, in his examination in chief, he has described as to how the appellant has assaulted him and the victim. So, in his examination in chief, he has described as to how the appellant has assaulted him and the victim. But, his evidence has been totally shattered by the defence as could be seen from the replies given by him in his cross-examination. In the first place, he candidly stated that he did not see Sunderabai being injured on that day. As regards the omissions, material as they are, he stated that he has stated before police that Sunderabai asked vithoba that she would cut him into pieces. He could not assign any reason as to why these facts are not mentioned in his statement. He further claimed that he has stated before police that Sunderabai gave blow of axe on the neck of Vithoba (there is no reference of neck). He also claimed that he stated before police that while he was holding injured Vithoba, Paduji gave a blow of axe on the parietal region of Vithoba. According to him, he stated before police that Balu, Sitaram, Ranga assaulted him. He could not assign any reason why these facts are not mentioned in his statement. Admittedly, these omissions are duly proved through the evidence of P.S.I. Sanjay (P.W. 11), who recorded the statement of Dadarao. In his cross-examination, he has stated that Dadarao did not state before him that Sunderabai told that she would cut him into pieces and Vithoba went forward saying cut him into pieces and then blow of axe was given on the neck by Sunderabai. He also stated that Dadarao did not state that Paduji gave blow of axe on the head of Vithoba and that Balu and Sitaram assaulted him with stick. 23. It is very pertinent to note that these omissions in the evidence of witness Dadarao were brought to the notice of the trial court by the counsel for the defence. But the trial Court, as could be seen from his judgment, simply ignored these omissions saying that these omissions are not of Vital Significance amounting to contradic-tion. 23. It is very pertinent to note that these omissions in the evidence of witness Dadarao were brought to the notice of the trial court by the counsel for the defence. But the trial Court, as could be seen from his judgment, simply ignored these omissions saying that these omissions are not of Vital Significance amounting to contradic-tion. It is very pertinent to note that the evidence of witness Dadarao, as also that of other eye witnesses, has been discarded by the trial Court so far as assault on the victim and Dadarao by the respondents is concerned, but very surprisingly, the trial court has accepted the evidence of eye witnesses including witness Dadarao in spite of the fact that there are material omissions in the evidence of Dadarao, The witness Dadarao was confronted with his statement recorded by the police. As to the fact of assault by the appellant on the victim vithoba with axe, the witness Dadarao vociferously maintained that he stated so before the police in his statement. But, his claim in that regard is proved to be false as P.S.I. Dhumal, after referring to the statement of Dadarao, recorded by him, stated that the witness Dadarao has not stated in his statement that the accused Paduji assaulted Vithoba with the axe on his head. Therefore, it goes without saying that the claim of witness Dadarao in his examination in chief that the appellant Paduji assaulted Vithoba with axe on his head is totally wiped out. This omission is certainly relevant and it amounts to contradiction and it affects his testimony before the court. In addition to that, other omissions, if taken into consideration, there is reason to say that the witness Dadarao is not a witness of truth, though his presence at the place of occurrence cannot be disputed. We are mindful of the fact that the witness Dadarao was himself injured in the assault. He has sustained injuries. Therefore, in normal course, his evidence has to be accepted for the additional advantage of he being an injured person. But material omissions, in his evidence, as pointed out earlier. affect the veracity of this witness and therefore, his claim in the examination in chief that the appellant assaulted the victim Vithoba with the axe on his head cannot be accepted. 24. But material omissions, in his evidence, as pointed out earlier. affect the veracity of this witness and therefore, his claim in the examination in chief that the appellant assaulted the victim Vithoba with the axe on his head cannot be accepted. 24. So far as other witnesses are concerned, as stated earlier, the trial Court has discarded their evidence while considering involvement of the respondents. As regards witness Raju (P.W. 9), the trial Court has observed that at the time of occurrence, he was not present near the place and there-fore, the trial Court found that their evidence that he is not the witness who has stated complete truth. While considering the assault by respondents on the victim and the witness Dadarao, the trial court did not accept their evidence on the ground that the evidence was vague and it was contrary to the medical evidence. In particular, so far as the assault by respondent Sunderabai with the axe is concerned. , the witness has claimed that the blow was given by axe by her on the neck of vithoba. Then, referring to the medical evidence of Dr. Sonone, the trial Court found that the medical officer did not notice any injury on the neck of the victim. It is in this context that the evidence of these witnesses, who claimed to be eye witnesses to the incident, came to be discarded so far as regards involvement of the respondents. If that is so, the version of these witnesses as regards the assault on the victim by appellant Paduji deserves to be rejected on the same ground when the evidence of these witnesses was vague and there are omissions on material factual position in their evidence. 25. Now referring to the report Exh. 42, nothing has been stated speci-fically as to assault by the appellant with axe on the head of the victim. It is very significant to note that, in the report Exh. 42, all that has been stated is about the assault on the head with sticks by four persons and that, due to that assault, deceased sustained injuries on his head. In the report Exh. 42, there is only reference to the fact that injury was caused below left eye due to blow by the axe. In fact, the trial court has come to the conclusion that there was no injury to the eye. In the report Exh. 42, there is only reference to the fact that injury was caused below left eye due to blow by the axe. In fact, the trial court has come to the conclusion that there was no injury to the eye. Even the medical evidence does not support that the victim sustained any injury below left eye. That apart, the claim of eye witnesses including Dadarao is that the appellant assaulted the victim on his head with the axe. The report Exh. 42 does not show that the appellant Paduji was holding axe in his hand and that, he assaulted victim vithoba with the axe giving blow on his head. All the eye witnesses claimed that the victim was assaulted on his head with axe first by respondent Sunderabai and then by the appellant Paduji after taking the axe from Sunderabai. But, such a sequence of events is conspicuously absent from the narration in the report Exh. 42. In the report Exh. 42, there is even no whisper that the respondent Sunderabai dealt a blow with the axe on the head of Vithoba and then, she gave the axe to the appellant Paduji, who then dealt a blow on the head of vithoba. In our opinion, because of this conspicuous absence of omission in the report Exh. 42, all these material facts wipes out the claim of eye witnesses that the appellant assaulted the victim Vithoba with the axe. It is very surprising that the trial Court, while rejecting the prosecution case, so far as the respon-dent Sunderabai is concerned, has taken into consideration this material omission in the report Exh. 42 and inconsistency in the medical evidence and thereby discarded the evidence of eye witnesses. 26. The medical evidence shows that there was only external injury on the occipital region. The learned counsel for the appellant Mr. Daga rightly submitted that this injury on the occipital region was attributed by the prosecution to the assault by respon-dent Sunderbai. The medical evidence shows that there was only one external injury. Admittedly, though there was internal injury of fracture of temporal bone, there was no corresponding external injury. The Medical officer has candidly stated that even if the blow is given on the temporal region of the head, it is not necessary that in every case there would be external injury. Admittedly, though there was internal injury of fracture of temporal bone, there was no corresponding external injury. The Medical officer has candidly stated that even if the blow is given on the temporal region of the head, it is not necessary that in every case there would be external injury. If that is so, the basic claim of the prosecution that the external injury was caused by Sunderabai. Itself negatives the prosecution case that the appellant Paduji caused injury to the victim Vithoba by the axe. 27. Mr. Loney, the learned A.P.P. first referred to the decision of the Apex Court in Laljit Singh v. State of U.P.1, While dealing with the appreciation of evidence and inconsistency between the dying declaration and evidence of eye witnesses and in particular, the omissions in the Statement of eye witnesses, the Apex Court has observed that detailed account of occurrence expected from a severely injured person, particularly when he died the next day and omissions in the statement of eye witnesses u/s. 161 of the Code of Criminal procedure was not found to be so material as to impeach the version of the prosecution. The conclusions arrived at by the Apex court are on the basis of the evidence on record in that case. Therefore, there is no quarrel over the proposition that has been laid down by the Apex Court on the basis of the conclusions arrived at on the evidence in that case. But, it is very difficult to hold so having regard to the evidence and the nature of omissions brought out in the evidence of eye witnesses in the case before hand. We have suffi-ciently pointed out that the omissions in the evidence of witness Dadarao are very material. Even as regards the omissions in the report Exh. 42 are found to be very material not because of absence of detail account of occurrence on the part of the victim Vithoba in the report Exh. 42. What we have found from the report Exh. 42 is the fact that there is no whisper even that the appellant Paduji assaulted the victim with the axe on his head. That apart, there is total departure from the sequence of events that occurred at the time of incident as claimed by eye witness before the court. 28. 42. What we have found from the report Exh. 42 is the fact that there is no whisper even that the appellant Paduji assaulted the victim with the axe on his head. That apart, there is total departure from the sequence of events that occurred at the time of incident as claimed by eye witness before the court. 28. In the decision of the Apex Court reported in Ram Singh and others v. State of U.P.2, it has been held that the ocular evidence of witnesses if found to be believable, the same should be accepted in spite of omission in the medical evidence. In that case, the doctor who performed post mortem on the dead body of the victim did not find any injury caused by the stick blow. However, there was ocular evidence which completely corroborated the version of the complainant that the victim was assaulted with the sticks. The contention on behalf of the learned counsel for the accused was that the medical evidence does not support the version of the eye witnesses. The Apex Court, in this context, observed that though the doctor who performed post mortem on the dead body of the victim, did not find any injury caused by the stick blow, but merely on the basis of this omission, it would be said that no stick blow was given to the victim. It might not have left any visible mark. The witnesses Rakesh Kumar and Anil Kumar were medically examined and that personal injuries possible by stick blows were found. The Apex Court, therefore, observed that the testimony of the witnesses cannot be discarded merely because of omission in the medical evidence. It is very difficult to agree with the submissions of Mr. Loney, the learned A.P.P. passed on this decision of the Apex Court that the trial court was justified in accepting the evidence of eye witnesses as regards involvement of the appellant Paduji in assaulting the victim Vithoba. 29. It is very difficult to agree with the submissions of Mr. Loney, the learned A.P.P. passed on this decision of the Apex Court that the trial court was justified in accepting the evidence of eye witnesses as regards involvement of the appellant Paduji in assaulting the victim Vithoba. 29. Thus, in the result, so far as the conviction of the appellant Paduji for assault on the victim and witness Dadarao is concerned, in our assessment the trial Court has committed an error in placing reliance on the evidence of the eye witnesses when their evidence is discarded by the trial Court while considering the case of the respondents for assaulting the victim and witness Dadarao and in the background of glaring omissions in the evidence of witnesses Dadarao and report Exh. 42 in this context, it has also to be borne in mind that the prosecution has not explained as to how the respondent Sunderabai came to be injured at the same time and place of the occurrence. Prosecution has not come out with true story. On the evidence on record, admittedly, the rival story of assault on respondent Sunderabai stands probable. Prosecution witnesses have audacity to deny even the fact that the respondent Sunderbai sustained inju-ries when, admittedly, the prosecution witnesses, who claimed to be eye witnesses and the victim Vithoba have been prosecuted on the report lodged by Sunderbai and they were facing trial for the same. Therefore, there is no clin-ching evidence to establish involvement of the appellant in commission of assault on the victim Vithoba and witness Dadarao. As such, the convic-tion of the appellant Paduji and conse-quent sentence awarded cannot sustain. The same deserves to be set aside. 30. So far as acquittal of respon-dents is concerned, we are not con-vinced by the submissions of Mr. Loney, the learned A.P.P. that the trial Court has committed any error in rejecting the evidence of eye witnesses. We have already indicated that the trial Court has rightly rejected the evidence of eye witnesses in so far as involvement of the respondents is concerned. In addition to this, in our opinion, basically prosecu-tion’s attitude of disclaiming the assault on respondent Sunderbai, had material bearing on the prosecution case, so far as respondents are concerned. It is admitted that Sunderbai came to be assaulted at the same time and place when the occurrence took place. In addition to this, in our opinion, basically prosecu-tion’s attitude of disclaiming the assault on respondent Sunderbai, had material bearing on the prosecution case, so far as respondents are concerned. It is admitted that Sunderbai came to be assaulted at the same time and place when the occurrence took place. It is a matter of record that the offence has been registered against the eye witnesses and the victim Vithoba on the report lodged by respondent Sunderabai and in pursuance of that, the witnesses were tried before the Court. If that is so, it was incumbent on the part of the prosecution to explain how the respon-dent Sunderabai sustained injuries. It is significant to note that the prosecution has not only failed to explain this part of the story of occurrence, but the witnesses have vociferously denied the fact that the respondent Sunderabai sustained injuries at the time of occurrence. So, ultimately, the fact remains that the prosecution has not come forward with true story as regards the incident that has taken place. The result is that the trial Court has rightly discarded the claim of prosecution witnesses so far as respondents are concerned. Even otherwise, on our own assessment of the evidence, we have found that the prosecution has failed to establish that the respondents assaulted the victim and witnesses Dadarao. As such, we do not find that any error is committed by the trial court in acquitting the respondents. Therefore, there is no reason to interfere with the judgment of acquittal passed by the trial Court. The appeal preferred by the state merits no consideration and the same is, therefore, dismissed. We, therefore, pass the following order. Order Criminal Appeal No. 14 of 1998 is allowed. The judgment and order convicting the appellant Paduji s/o Amruta Thombare is set aside and the appellant is acquitted and he be set at liberty forthwith, if not required in any other case. Criminal Appeal No. 124 of 1998 is dismissed. Appeal No. 14 allowed. State appeal dismissed. 1. 2000 Supreme Court Cases (Cri.) 1501. 2. AIR 1999 Supreme Court 1754.