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2005 DIGILAW 1597 (BOM)

State of Maharashtra v. Ashok s/o Sukhdeo Raut

2005-11-26

J.N.PATEL, R.C.CHAVAN

body2005
R.C. CHAVAN, J. :- This appeal by the State challenging acquittal of all the accused arraigned before the learned Sessions Judge, Buldhana in Sessions Trial No.50/94 was admitted only against the original accused no.1 Ashok Sukhdeo Raut the sole respondent before us. 2. The facts which led to the prosecution of the respondent along with three others are as under: Victim Ashok Deshmukh has a farm adjacent to the land of accused No.2 Subhash Deokar and accused No.3 Namdeo. Namdeo used to irrigate crop in his field from the well in the field of deceased Ashok Deshmukh, for which he had compensated Ashok Deshmukh in grain. This arrangement led to quarrels. Accused No.2 Subhash had cultivated land of Ashok's brother on lease basis, and irrigation of crop in that land from the well in the field of victim Ashok Deshmukh had created problems. Respondent Ashok Raut had beaten victim Ashok Deshmukh, resulting in Ashok Deshmukh giving report to the police in the past. On the evening of 30-03-1994 the four accused persons assaulted victim Ashok Deshmukh. Ashok Deshmukh died on account of injuries sustained in the assault. His wife gave a report. 3. After performing inquest the police sent dead body for medical examination, performed the panchanama of spot, recorded statement of witnesses, seized incriminating articles and sent them to Forensic Science Laboratory and on completion of investigation arrested and charge-sheeted the accused. 4. The learned Chief Judicial Magistrate, before whom the charge-sheet was submitted, committed the case to the court of Sessions at Buldhana. The learned Sessions Judge, Buldhana, charged the four accused of offence punishable under section 302 read with section 34 of the Penal Code or in the alternative under section 302 read with section 120-B of the Penal Code. All the accused pleaded not guilty and hence were put on trial. 5. The prosecution examined in all eleven witnesses in its attempt to bring home the guilt of the accused who had taken the defence of denial. Upon consideration of the prosecution evidence, in the light of defence raised by the accused, the learned Sessions Judge, held that charges were not proved and proceeded to acquit all the accused. Aggrieved thereby the State has preferred this appeal, which was admitted by this Court only against respondent No.1 Ashok Sukhdeo Raut by order dated 16-10-1996. 6. Upon consideration of the prosecution evidence, in the light of defence raised by the accused, the learned Sessions Judge, held that charges were not proved and proceeded to acquit all the accused. Aggrieved thereby the State has preferred this appeal, which was admitted by this Court only against respondent No.1 Ashok Sukhdeo Raut by order dated 16-10-1996. 6. We have heard Advocate Yengal, learned Additional Public Prosecutor for the State in support of the appeal and Advocate Badhe for the respondent Ashok Sukhdeo Raut. With the help of both the learned counsel we have examined the evidence tendered at the trial in order to assess the correctness of finding recorded by the learned Sessions Judge. 7. There is no eye-witness to the incident. The evidence of P.W.No.1 Nirmalabai widow of the victim Ashok, shows that accused Subhash Deokar as well as Namdeo had quarreled with the victim on account of irrigating their respective fields. She also stated that about 2 to 3 years before the incident, cattle of the respondent had trespassed in their land. This lead to quarrel between victim and the respondent and the victim was beaten by the respondent. Thus, even if the evidence of P.W.No.1 Nirmalabai about the motive is accepted at its face value, it may be seen that the respondent did not have any serious dispute with the victim. The dispute on account of trespass of cattle arose about 2 to 3 years before the incident and, therefore, it can not be said that the respondent had any axe to grind against the victim. 8. P.W. No.2 Tejrao stated that he knew the respondent. About three months before Tejrao was taken to the police station the respondent had come to him for getting a sword sharpened. According to Tejrao, respondent Ashok Raut threatened that if Tejrao refused to sharpen the sword, the respondent would take revenge. Tejrao had identified article 18 as the sword which he had sharpened. In the cross-examination, Tejrao stated that police had beaten him and therefore, he answered every question put by the police in the affirmative. In view of this the evidence of Tejrao is hardly of any consequence in indicating that the respondent made any preparation to inflict injuries on the victim. In any case, since motive was ruled out, there was no need for the respondent to make any such preparation. In view of this the evidence of Tejrao is hardly of any consequence in indicating that the respondent made any preparation to inflict injuries on the victim. In any case, since motive was ruled out, there was no need for the respondent to make any such preparation. Further, even if it is presumed for a while that the respondent got sword sharpened, it need not necessarily be for assaulting the victim. 9. P.W.No.3 Mahendra stated that on 16-03-1994 respondent was interrogated by the police in his presence and admitted that he would produced the sword used in the commission of an offence which he has concealed. Memorandum was accordingly made vide exhibit no.22. The witness then states that the respondent Ashok Raut led them to stream and pointed to heap of rubbish from which the sword was taken out which was seized vide panchanama at exh. no.23. Bed sheet also has been seized from the house of respondent vide exhibit no.24. 10. P.W.No.10 P.S.I. Onkar Chavan, had conducted investigation in this case and had recorded memorandum at exhibit no.22 and effected seizure at exhibit nos.23 & 24. He stated that the accused had led them in the jeep to the bed of stream-let whereas P.W.No.3 Mahendra was categorical stated that jeep was not taken to the stream-let. This would create a doubt as to whether the witness had really been present at the memorandum and seizure of incriminating article at the instance of respondent Ashok Raut vide exh. nos.22 to 24. Seizure memoranda at exhibit nos.23 & 24, memorandum of statement made by respondent at exhibit no.22, do not bear signatures of respondent. Therefore, it cannot be said that the evidence in respect of seizure of sword at the instance of respondent is fool proof. The sword had been sent by P.S.I. Chavan to Forensic Science Laboratory vide requisition at exhibit no.58. The report of Forensic Science Laboratory at exhibit no.39 shows that the stains of blood group A, which was also the group of blood stains found on the clothes of victim, were found on the sword. The learned A.P.P. submitted that finding of stains of blood group A on the sword seized at the instance of respondent would conclusively indicate his complicity in an offence. First, the evidence of seizure of sword at the instance of respondent is not convincing. The learned A.P.P. submitted that finding of stains of blood group A on the sword seized at the instance of respondent would conclusively indicate his complicity in an offence. First, the evidence of seizure of sword at the instance of respondent is not convincing. Secondly, mere observation of stains of blood group A on the sword would not be enough to indicate complicity of the respondent, only because, blood group of respondent found as BRh positive vide doctor's report at exhibit no.53, because the sword had not been seized from the possession of the respondent. 11. The evidence of P.W.No.4 Ramrao and P.W.No.5 Totaram is not only not useful in connecting the respondent to the crime, but rather ruled out the respondent's complicity in the incident. P.W.No.4 Ramrao stated that on incidental evening the victim was seen in the company of original accused Nos.2 & 4 Subhash and Fulsingh, whereas P.W.No.5 Totaram stated that deceased Ashok Deshmukh was in company of accused no.2 Subhash, no.3 Namdeo and No.4 Fulsingh. They do not state that the victim was in the company of the respondent. In view of this, there is nothing to indicate complicity of the respondent in the crime. 12. The evidence of other witnesses namely P.W.No.6 Shankar, the Panch on seizure of clothes of accused; P.W.No.7 Gokulsingh, a hostile witness on the arrest of respondent; P.W.No.8 Police Constable Sd. Mustak, carrier of property to Forensic Science Laboratory; P.W.No.9 Police Head Constable Pralhad, who recorded occurrence report; P.W.10 P.S.I. Chavan, who conducted investigation; and P.W.11 P.S.I. Vinod, who filed charge-sheet, does not provide any link to connect respondent to the crime. 13. In view of this the learned Sessions Judge justifiably held that the prosecution failed to prove the respondent's complicity in the crime and proceeded to acquit the respondent of offence punishable under section 302 read with section 34 of Penal Code or in the alternative section 302 read with section 120-B of Penal Code. Consequently we dismiss the appeal and direct that bail bonds, if any furnished by the respondent shall stand cancelled.