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2005 DIGILAW 1227 (BOM)

State of Maharashtra v. Suresh s/o. Ramdas Baxi

2005-09-15

J.N.PATEL, R.C.CHAVAN

body2005
R. C. CHAVAN, J. :- Being aggrieved by the acquittal of the respondents of the offence of murder by the learned Additional Sessions Judge, Nagpur the State has preferred appeal and one Johar Baxihas preferred revision. 2. The facts which led to prosecution of the respondents are as under: Both the accused, victim Deepak 13axi and the witness are residents bf Gaddigudam, Nagpur. On 18-06-1992 at about 6.30 a.m. there was a quarrel between accused and Deepak Baxi on account of filling water at a public water tap. This resulted in, accused Naresh catching hold of Deepak, and Suresh assaulting Deepak with an iron rod. Injured Deepak who fell unconscious was taken to Mayo Hospital, where he succumbed to his injuries on 20th June, 1992. 3. On a report by sister-in-law Munnibai an offence was registered and investigation had commenced. After performing inquest, body of Deepak was sent for post-mortem examination which revealed that the victim had died of a head injury leading to sub-dural hemorrhage, in respect of which there is no dispute. The police examined witnesses, collected incriminating articles and on completion of investigation charge-sheeted the accused persons. 4. The learned Chief Judicial Magistrate, Nagpur, who received the charge-sheet, committed the case to the Court of Sessions at Nagpur, where it was assigned to Third Additional Sessions Judge. To a charge of an offence punishable under Section 302 read with 34 of Indian Penal Code, framed by the learned Judge, both the accused pleaded not guilty and claimed to be tried. At the trial the prosecution examined in all II witnesses. The defence of the accused is that of denial. Upon consideration of the prosecution evidence in the light of defence raised, the learned trial Judge held that the prosecution failed to prove the complicity of the accused in the offence and hence, acquitted both of them. Aggrieved thereby the state has preferred an appeal and victims' wife has preferred revision petition. 5. We have heard Shri. Mirza, learned Additional Public Prosecutor for the State. None was present to represent the respondents-accused as also the revision petitioner. Hence, .we proceeded to reappreciate the evidence with the assistance provided by Shri. Mirza, learned Addl. Public Prosecutor. 6. The case rested on the ocular account of P.W.1 Munnibai, sister-in-law of the victim, P.W.2 Roopbai, a neighbour and P.W.4 Azizkhan. None was present to represent the respondents-accused as also the revision petitioner. Hence, .we proceeded to reappreciate the evidence with the assistance provided by Shri. Mirza, learned Addl. Public Prosecutor. 6. The case rested on the ocular account of P.W.1 Munnibai, sister-in-law of the victim, P.W.2 Roopbai, a neighbour and P.W.4 Azizkhan. Unfortunately none of them spoke of each others' presence at the spot. P.W.1 Munnibai stated that she saw accused Naresh catching hold of Deepak and Suresh assaulting Deepak with an iron rod leading to head injury. She stated that Roopbai was with her when Deepak was taken to the Hospital. She does not state that Roopbai was present when the incident actually took place. Even the report at Exh.25 mentions that Roopbai and Munnibai took the victim to the hospital. It does not show that Roopbai was present when the incident took place. 7. P.W.3 Roopbai stated that she was standing near the house of Deepak at a distance of about 20 from the public tap when the incident took place. According to her the accused Naresh called Suresh to assault Deepak, Suresh brought an iron rod and hit Deepak on head. She claimed that she and two other boys removed Deepak to Mayo Hospital. She admitted in her examination-in-chief itself that no third person except boys and herself were on the spot. Thus, she rules out presence of Munnibai on the spot. The boys, who were supposed to have been present, have not been named and identified by P.W.3 Roopbai and have not been examined. 8. P.W.4 Azizkhan, third eyewitness examined by the prosecution stated that he saw accused Naresh catching hold of Deepak and accused Suresh assaulting Deepak with the iron rod. He claimed that he brought Deepak to Mayo Hospital with other male members, ruling out participation of female members i.e. P.W.1 Munnibai and P.W.3 Roopbai in taking the victim to Hospital. He does not state that Munnibai or. Roopbai were present at the spot. In view of these discrepant accounts of three persons. possibility of all of them being got up witnesses cannot be ruled out and therefore, their testimonies were rightly rejected by the learned Additional Sessions Judge. 9. Evidence of P.W.2 Hiralal, panch of spot panchanama Exh.27 or P.W.S Kailash panch of inquest panchanama at Exh.29 does not help in connecting the accused to the crime. 10. Dr. possibility of all of them being got up witnesses cannot be ruled out and therefore, their testimonies were rightly rejected by the learned Additional Sessions Judge. 9. Evidence of P.W.2 Hiralal, panch of spot panchanama Exh.27 or P.W.S Kailash panch of inquest panchanama at Exh.29 does not help in connecting the accused to the crime. 10. Dr. Kamble P.W.5 proved Medico Legal Certificate in respect of the injuries to the victim at Exh.32. He had observed lacerated wound on the left temporal region of dimensions 2" x 1/2" x 1/2". He also had given an opinion in respect of the iron rod referred to him by the police vide Exh.45. The opinion at Exh.46 shows that the injuries were possible by the type of weapon sent for examination. He specifically stated that the weapon should be sent to Chemical Analyser for confirmation of blood stains. This weapon was recovered at the instance of accused Suresh in presence of P.W.7 Deelip Jadhav Deelip stated that in his presence accused Suresh agreed to produce iron bar but curiously he states that he and the Police Party went to Medical Chowk to the house of accused. We have confirmed from the original record that there was no typographical error and in both, Marathi and English versions, the witness has stated that they went to Medical Chowk to the house of Suresh for recovery of weapon. Panchanama, however, shows that the accused had stated that he had concealed the weapon in his house in Sweeper Mohalla at Gaddigodam and the recovery panchanama Exh.37 also shows that it was so recovered at Gaddigodam in Nagpur. The spot known as Medical Chowk is far away from Gaddigodam. 11. Further in spite of specific recommendations of Dr. Kamble, it is not made clear, as to whether the weapon was sent to the Forensic Science Laboratory, and if so, what was the opinion of the Chemical Analyser in respect of this weapon. The report from the Laboratory have not been filed on record. Therefore, the evidence of this witness is of no use in connecting the accused to the crime. 12. The report from the Laboratory have not been filed on record. Therefore, the evidence of this witness is of no use in connecting the accused to the crime. 12. Three other witnesses examined by the prosecution, P.W.9 P.S.I. Dhamad, who conducted spot panchanama and received report at Exh.25, P.W.10 P.S.I. Walvi, who recorded formal F.I.R. Exh.42, and P.W.11 P.S.I. Bhoite who conducted rest of the investigation, do not throw any additional light in their evidence in order to connect the accused to the crime. 13. In view of this it cannot be said that the view taken by the learned trial Judge was improbable or perverse inviting an interference from us. Hence, both, the Criminal Appeal as well as Criminal Revision Petition, are dismissed. Bail Bonds, if any furnished by the respondents, shall stand cancelled.