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2007 DIGILAW 1052 (BOM)

State of Maharashtra v. Rameshwar Devidas Junare

2007-08-01

K.J.ROHEE, S.R.DONGAONKAR

body2007
JUDGMENT (per S.R.DONGAONKAR, J.) 1. Respondents in both an appeal and the revision, were prosecuted for the offence punishable under Section 302, 109, 307, 325 r/w 34, 147, 148, 149 of the Indian Penal Code on the allegations that on 16.1.1990 at about 8 a.m. accused No. 1 (respondent No.1) Rameshwar, committed murder of one Shivshankar Purushottam Junare by causing him fatal injuries by spear and all the respondents in prosecuting the common object of their unlawful assembly armed with deadly weapons caused hurts to Ramesh Kisan Junare and Purushottam Rambhau Junare, by such act if they had caused the death of these persons, they would have been guilty of murder. They were tried in Sessions Case No. 50/90, by the Additional Sessions Judge, Buldana. All of them were acquitted by his judgment dated 26.7.1993. The State has preferred an appeal against their acquittal, whereas the complainant Ramesh Kisan Junare and injured Rambhau Junare and father of deceased Shivshankar have preferred the aforesaid criminal revision to challenge the said judgment. 2. Briefly stated prosecution case is that, all these respondents, hereinafter referred to as accused, are resident of Warud, Tq. Matola, Distt. Buldana. On 16.1.1990 at about 8 a.m., there was some quarrel between PW-2 Purushottam Rambhau Junare i.e. revision applicant no. 1, his son Shivshankar (deceased ) on one side and accused No. 1 Rameshwar on the other. The reason for quarrel was, accused No. 1 Rameshwar had stored some stones, earth in the open space of the revision applicant Purushottam for constructing a Gobar Gas Plant. There was an incident of abusing at the instance of accused No. 1 Rameshwar to revision applicant (PW-2) Purushottam & deceased Shivshankar. It is alleged that at that time all the accused nos. 1 to 5 formed an unlawful assembly and accused no. 1 was armed with a deadly weapon Ballam i.e. spear. He inflicted its blow on the part of the body between neck and the chest of the said Shivshankear. He suffered severe injury and when he was being taken in bullock-cart to Borakhedi, on the way he died. It is alleged that accused no. 3 Parasram had instigated accused no. 1 to inflict spear blow. It is also alleged that accused nos. He suffered severe injury and when he was being taken in bullock-cart to Borakhedi, on the way he died. It is alleged that accused no. 3 Parasram had instigated accused no. 1 to inflict spear blow. It is also alleged that accused nos. 2, 4 & 5 had attempted to murder the said Ramesh Kisan Junhare (PW-1) and Purushottam Rambhau Junare (PW-2) and while doing so they had caused grievous hurts to them by means of stones and sticks. PW-1 Ramesh Junare filed report in the Police Station Borakhedi about the incident. Offence came to be registered, the same was investigated by PW-9 P.S.I. Babusingh Thakur. Some part of the investigation was done by PW-10 P.I Palandurkar. The dead body of deceased Shivshankar was sent for post mortem examination. Injured P.Ws were got examined from the Medical Officer. Inquest Panchnama, Panchnama of Scene of Offence etc. were prepared. Accused persons were arrested; seized Muddemal was sent to C.A. for report and after due investigation, the charge-sheet was submitted in the Court of Judicial Magistrate, First Class, Malkapur, who committed the case to the Court of Sessions, Buldana. 3. When relevant charge was framed by the learned Additional Sessions Judge, Buldana, it was explained to the accused. They pleaded not guilty. Defence of accused no. 1 is that he had inflicted the blow of ballam on deceased Shivshankar because he was assaulted by him and other P.Ws. It is alleged that he had also suffered injuries because of the use of sticks, spear at the instance of Shivshankar, his father Purushottam and PW-1 Ramesh. The defence of accused nos. 2, 4 & 5 is that they had come to intervene in the quarrel between the parties, whereas accused no. 3 has claimed that he had been falsely involved. 4. The prosecution led evidence of 10 witnesses. PW-1 Ramesh Kisan Junare and PW-2 Purushottam Rambhau Junare are alleged injured witnesses and PW-1 Ramesh Kisan Junare has lodged report to the Police Station. PW-3 Supada Bhiku Junare is also an injured witness, who had allegedly seen the later part of the incident. PW-4 Dr. Mehetre has examined PW-1 Ramesh Junare and has issued medical certificate about his injuries as per Exh. 31. PW-5 Rajendra Mishra is the witness to the spot panchnama (Exh.40). PW-6 Dr. Vinod Ukarde has performed autopsy on the dead body of Shivshankar. Autopsy report is at Exh. 42. PW-4 Dr. Mehetre has examined PW-1 Ramesh Junare and has issued medical certificate about his injuries as per Exh. 31. PW-5 Rajendra Mishra is the witness to the spot panchnama (Exh.40). PW-6 Dr. Vinod Ukarde has performed autopsy on the dead body of Shivshankar. Autopsy report is at Exh. 42. According to him, there were 2 external and 4 internal injuries, which were ante-mortem and which might have been caused due to sharp pointed object like Ballam; on the person of the deceased. According to him, deceased had died due to partial tear of internal jugular vein (right) with tracheal tear right side with Haemothorax (right) with asphyxia due to blood aspiration with Hemorrhagic shock. PW-7 Rambhau Narkhede is the Naib Tahsildar, who had recorded the dying declaration of PW-2 Purushottam as his condition at that time was serious. PW-8 Dr.Ramlingam has examined PW-3 Supda Junare and also PW-2 Purushottam and found injuries on their persons as mentioned in Exh. 47. He has opined that he could not tell as to whether the said injuries were dangerous. He had opined that injuries were caused by means of sticks. He has also stated in the cross-examination regarding the injuries found on the person of accused No.1 Rameshwar when he was examined on the same day at about 12.30 p.m. PW-9 ASI Thakur has recorded the report of PW-1 Ramesh and registered offence on the same being Crime No. 95/90 under Section 302 r/w 34 of Indian Penal Code. He had visited the spot of offence and prepared spot panchnama as per Exh. 40. He also recorded the statement of PW-2 Purushottam. PW-10 PI Palandurkar has conducted further investigation. He has arrested the accused persons, sent the seized Muddemal to C.A. for report and then submitted the charge-sheet. 5. The accused did not adduce any evidence in their defence. It is, however, necessary to mention that accused no. 1 Rameshwar in his statement under Section 313 of Cr.P.C. has stated that on the day of incident, he had kept the stones & earth, for the construction of Gobar Gas Plant, in the space jointly owned by him and his real brother. Deceased Shivshankar and PW-2 Purushottam objected for the same. He told them that the material was kept in his open space and he would remove the same after the construction work is over. Deceased Shivshankar and PW-2 Purushottam objected for the same. He told them that the material was kept in his open space and he would remove the same after the construction work is over. At that time deceased Shivshankar, PW-2 Purushottam and PW-1 Ramesh caught him and took him pulling in front of house of Champu Seth Tiwari. At that time Shivshankar gave blow of an axe on his head, whereas Purushottam gave blow of stick on his back and other parts of the body. Accused No.1 Ramesh gave blow by means of Bhala (spear) on his person but he got escaped himself and that Bhala hit on the wall of the house of said Tiwari and therefore, blade of the same had broken. He snatched the stick of that broken Bhala and moved around him by way of self defence. Thereafter he went to the Police Station and lodged report there. He filed the certified copy of the charge sheet in the counter case on record. 6. Thus, it would be seen that the occurrence of some incident has not been alleged, so also the presence of accused no. 1 at the time of incident. The case of accused no. 1 in defence is that, in exercise of right of private defence, the injury was caused to deceased Shivshankar because of which he died, so also other P.Ws suffered injuries. 7. Learned trial Judge has accepted the defence that Accused No. 1 and other had exercised their right of private defence and the injuries caused to PW-1 Ramesh and PW-2 Purushottam were not serious. According to him, as two possibilities are there, one going in favour of the prosecution and other in favour of the accused, the accused were entitled for benefit of doubt. Consequently, he rendered the judgment of acquittal of the accused/ respondents. 8. Learned A.P.P. Mr. D.B. Patel, for appellate-State has contended that the evidence of eye-witnesses namely PW-1 Ramesh Kisan Junare and PW-3 Supada Bhiku Junare is reliable. PW-2 Purushottam Rambhau Junare has also supported the prosecution case and the evidence of these witnesses is corroborated by the medical evidence on record including that of P.M. Notes in respect of deceased Shivshankar. Learned A.P.P. Mr. D.B. Patel, for appellate-State has contended that the evidence of eye-witnesses namely PW-1 Ramesh Kisan Junare and PW-3 Supada Bhiku Junare is reliable. PW-2 Purushottam Rambhau Junare has also supported the prosecution case and the evidence of these witnesses is corroborated by the medical evidence on record including that of P.M. Notes in respect of deceased Shivshankar. It is also contended that there is wrong appreciation of the material evidence led by the prosecution by the learned trial Judge and as such the judgment of acquittal of the respondents needs to be set aside in the interest of justice and all the accused, and if not, accused no. 1 Rameshwar needs to be convicted for the offence under Section 302 of the Indian Penal Code. 9. Mr. N.H.Joshi, learned counsel for the revision applicant has submitted in terms of the contentions raised by the learned A.P.P. for State. 10. To counter these submissions, learned counsel Mr.N.B.Jawade, for the respondents, has submitted that the accused had lodged F.I.R. of the incident prior to the report of PW-1 Ramesh. There was counter case and accused No. 1 Rameshwar had suffered serious bleeding injuries. The counter case is not tried together. No doubt, the accused had failed to file the copy of the charge sheet on record, the evidence which has come on record do support the defence of the accused No. 1 Rameshwar that he had exercised right of private defence. In any case, as there is no explanation for the injuries found on the person of accused no. 1 Rameshwar, there is suppression of genesis of the occurrence and the serious injuries on the person of accused no. 1 which would show that he was entitled to defend himself from the assault by deceased Shivshankar, PW-1 Ramesh and other prosecution witnesses. 11. On perusal of the evidence adduced by the prosecution, particularly of PW-1 Ramesh, PW-2 Purushottam and PW-3 Supada, it would be seen that they did not depose anything about the injuries suffered by accused no. 1 Rameshwar. From their evidence, it is apparent that they wanted to make out a case that it was only accused no. 1 who had inflicted Ballam (spear) blow on the body of the deceased Shivshankar and the other accused have caused the injuries to PW-1 Ramesh and PW-3 Sukada. 1 Rameshwar. From their evidence, it is apparent that they wanted to make out a case that it was only accused no. 1 who had inflicted Ballam (spear) blow on the body of the deceased Shivshankar and the other accused have caused the injuries to PW-1 Ramesh and PW-3 Sukada. PW-3 Sukada, however, in examination in chief itself stated that, when he intervened; he received the blow of the stick and the said stick blow was not given intentionally. In cross examination, he stated that he went to the spot of incident when the incident was over and he did not see who assaulted who and by what weapons. He also specifically stated that accused no. 3 was not seen on the spot. It is, therefore, seen that he did not support the prosecution case, in totality. Further, in cross examination, this witness has stated that one criminal case is pending against him & 6 others on the allegations of accused No. 1 Rameshwar that he was assaulted and in that case Ambadas, Arjun and Sanjay are the witnesses and that is a counter case. He also stated that he accompanied PW-2 Purushottam upto Police Station Borakhedi and he was present in Police Station when accused No. 1 Ramesh had lodged the report. This would show that his evidence cannot corroborate the evidence of PW-1 Ramesh and PW-2 Purushottam, who are admittedly the relation witnesses of the deceased. 12. It is true that their evidence cannot be disbelieved merely because they are relations of the deceased. But fact remains that they had not told anything about the causing of injuries to the accused No. 1 Rameshwar. These witnesses were contradicted for some of the portions in their statement before police, so also some improvements were pointed out. 13. The main factor which goes against the credibility of their evidence is non-disclosure and non-explanation of the injuries on the person of accused No. 1 Rameshwar. It is pertinent to note that PW-1 Ramesh in his cross examination has stated that when he reached police station, accused No.1 was seen there. He lodged report at Police Station that time against him, Shivshankar, Purushottam and four others and the criminal case is fixed for hearing in the same Court. With the background of this evidence, the injuries on the person of accused no. He lodged report at Police Station that time against him, Shivshankar, Purushottam and four others and the criminal case is fixed for hearing in the same Court. With the background of this evidence, the injuries on the person of accused no. 1 Rameshwar caused in the said incident need to be seen. Dr. Ramlingam (PW-8) has deposed about the same in the cross examination. The following 9 injuries were found on his person; (1) Lacerated wound size 1. x ½. x 1/3. on back of head in occipital region, horizontally placed. (2) Lacerated wound in right parietal region size ½. x 1/10. x 1/10., horizontally placed lateral to mid-line and posteriorly placed. (3) Lacerated wound in left parietal region horizontally placed about 1. lateral to the mid-line and posteriorly placed; size 1. x 1/4. x 1/4.. (4) Lacerated wound size 3/4. x ½. x1/10. above 1. posterior to and lateral to No.3. (5) Lacerated wound size 3/4. x 1/10. x 1/10. about ½. anterior to and lateral to No. 3 (6) Lacerated wound size 1. x 1/10. about 1/4. lateral to No.5 (7) Complaint of pain on both elbow joints but on examination no injury seen. (8) Abrasion on middle of left scapula, size 3/4. x 1/4.. (9) Complaint of tenderness in abdomen and back, but on examination, no injury was seen. In his further cross-examination, he stated that patient was referred to General Hospital, Buldana for further investigation and management. He further stated that he issued medical certificate which was then shown to him from Sessions Case No. 50/91, which appears to be a counter case. He has also stated that Occipital, parietal region is a vital part of the body, lacerations are possible due to blows by means of axe which is somewhat blunt. Injuries Nos. 1 to 6 mentioned in Exh.50 (in respect of accused No.1) were on vital part of the body. This will show that injuries on the person of the accused no. 1 were serious and they were on vital part of the body i.e. head. This would clearly mean that in absence of anything brought on record to explain these injuries, the prosecution has suppressed the genesis of the occurrence. 14. In view of the decision of the Apex Court in AIR 1976 SC 2263 [ Laxmisingh and ors vs. State of Bihar] it would be clear that, . This would clearly mean that in absence of anything brought on record to explain these injuries, the prosecution has suppressed the genesis of the occurrence. 14. In view of the decision of the Apex Court in AIR 1976 SC 2263 [ Laxmisingh and ors vs. State of Bihar] it would be clear that, . In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. 15. The prosecution cannot succeed merely on saying that there is no charge-sheet or the counter case on record, inasmuch as there is clear evidence on record to show that P.Ws are not deposing about the injuries found on the person of accused No. 1 Rameshwar and the Medical Officer has deposed about the injuries found on his person saying that they were on vital part of the body and were serious. 16. On perusal of the impugned judgment, it would be seen that the learned trial Judge has rightly found that the provisions of Section 100 of the I.P.C. would be attracted and because of the injuries found on the person of Accused No. 1 Rameshwar, he would be entitled to exercise right of private defence to save his own life. He also noticed that the witnesses who could have been found in the neighbourhood are not examined by the prosecution and their presence at the time of incident as the incident is of morning time, is possible. He also noticed that the witnesses who could have been found in the neighbourhood are not examined by the prosecution and their presence at the time of incident as the incident is of morning time, is possible. Therefore, it was the duty of the prosecution to examine them. In the present case, the witnesses whose houses are near the spot of incident are not examined by the prosecution. Only witnesses who have been prosecuted at the instance of the accused are examined, who also did not explain the injuries on the person of Accused No. 1 Rameshwar and thereby suppressed the genesis of the occurrence which is carved out from the prosecution evidence. Therefore, it is not clear as to who were the aggressors. In such circumstances, it is difficult to hold that view taken by the learned trial Judge is perverse and there are any compelling reasons to set it aside. 17. This court is dealing with the acquittal of the respondents, in an appeal by the State. In these circumstances, the observations of the Apex Court in 2007 (2) Crimes 103 SC [Chandrappa & ors. vs. State of Karnataka] in para 35 can be referred, which are thus- 35. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds, 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc., are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person has to be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 18. Even if the other view is possible, as the view taken by the learned trial Judge is not incorrect or improbable, the judgment of the acquittal of the respondents cannot be overturned. As such, the appeal as well as revision have to be dismissed. The same are dismissed.