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2018 DIGILAW 891 (BOM)

Kailas Shriram Chavan v. State Of Maharashtra

2018-03-27

B.R.GAVAI, M.G.GIRATKAR

body2018
JUDGMENT M.G. Giratkar, J. - By way of Criminal Appeal No. 90 of 2015, the appellants challenge the judgment and order dated 29.01.2015 in Sessions Trial No. 56 of 2010 passed by the learned Sessions Judge, Pusad thereby convicting them for the offence punishable under Section 302 of the Indian Penal Code and sentencing them to suffer imprisonment of life and to pay a fine of Rs. 10,000/-each. 2. The case of the prosecution against the accused/appellant in short is as under :Accused Madhukar and Kailas were suspecting deceased Prakash Rathod about playing black magic on their family members. On the day of incident i.e. 07.08.2010 at about 10:00 a.m., deceased Prakash Rathod along with Bharat Ade and Anil Ade were going towards Pusad on the motor cycle. Said motor cycle was driven by deceased Prakash Rathod. When the said motor cycle reached on the bridge after half kilometer from village Dhundi, accused Kailas was standing on the bridge. He saw motor cycle of deceased and made obstacle by his cycle. Deceased Prakash, Bharat and Anil fell down from the motor cycle. Kailas was having an axe. Accused Rmesh, Shobhabai, Seemabai, Atul, Laxmibai, Madhukar and Kailash started beating the deceased by sticks. Madhukar and Kailas started assaulting deceased on his neck, shoulder repeatedly. They were saying that deceased had played black magic to the mother and sister and created problems in their house. Bharat and Anil ran towards village Dhundi. They brought people from the village. Accused persons ran away. Deceased was lying dead. Bharat Ade lodged a report (Exh.55). Crime was registered vide printed FIR (Exh.56). Police Inspector Shri Badre investigated the crime and filed the charge sheet before JMFC, who, in turn, committed it to the Court of Session at Pusad. Charge was framed at Exh.17. The same was read over and explained to accused Nos.1 to 7. They pleaded not guilty and claimed to be tried. The defence appears to be total denial. The prosecution has examined in all 15 witnesses. At the conclusion of trial, learned trial Court convicted accused Kailas and Madhukar and sentenced them as stated above. Learned trial Court acquitted other accused. 3. Heard the learned Counsel appearing on behalf of the respective appellants and Shri T.A. Mirza, learned Additional Public Prosecutor appearing on behalf of the State. 4. The prosecution has examined in all 15 witnesses. At the conclusion of trial, learned trial Court convicted accused Kailas and Madhukar and sentenced them as stated above. Learned trial Court acquitted other accused. 3. Heard the learned Counsel appearing on behalf of the respective appellants and Shri T.A. Mirza, learned Additional Public Prosecutor appearing on behalf of the State. 4. The learned trial Court mainly relied on the evidence of PW Nos.1 and 2 and the discovery of weapons at the instance of accused Madhukar and Kailas. PW Nos.1 and 2 have stated that they were present at the time of incident. They were going along with the deceased on his motor cycle to Pusad. Accused Kailas obstructed the motor cycle by his cycle. All three fell down. Both the witnesses have stated that accused Kailas and Madhukar beat deceased by an axe. They have also stated in their evidence that other accused beat the deceased by sticks. 5. The evidence of PW Nos.1 and 2 are not reliable in respect of the incident stated by them. PW1 has stated in his examination-in-chief that he sustained injury on his left leg and he fell down from the motor cycle. But, in the cross-examination, he has admitted that he and PW2 Anil did not suffer any injury. Both the witnesses have admitted that at the time of incident, there was raining and there was mud on the spot of incident. Medical Officer not stated in his evidence that the clothes of deceased were stained with mud. Clothes of PW Nos.1 and 2 were also not seized by the Investigating Officer. Material omissions and contradictions are brought on record in the evidence of PW Nos.1 and 2. Investigating Officer has proved in his evidence all the omissions and contradictions. He has stated as under : "PW1 did not disclose at the time of lodging of complaint that on the date of incident it was third day function of Atmaram Jadhav and Prakash was present there and Prakash was told that he had to go to hospital and Prakash also stated that he had to go to Pusad, so also after programme of Atmaram they left at 10 am. He did not state at the time of lodging of complaint and statement that they met Anil and on the road. He did not state at the time of lodging of complaint and statement that they met Anil and on the road. He did not state at the time of lodging of complaint and statement that Kailas had axe on the back side under the collar. He did not state at the time of lodging of complaint that Madhukar had axe in his hand and he assaulted Prakash on neck and shoulder. He did not state at the time of lodging of complaint Prakash did black magic on mother and sister and hence there was dispute in the family. (limited to mother and sister). He did not state at the time of lodging of complaint that there were many persons present for the said third day function and he went back with them to the place of incident. He did not state at the time of lodging of complaint that till that time the assailants had left till then." 6. In view of the material improvements in the evidence of PW Nos.1 and 2, their evidence is not reliable. Both the witnesses are the close relatives of the deceased. They could have defended themselves and the deceased from accused persons. They have stated against Laxmibai, Shobha, Seema, Ramesh and Atul that they beat the deceased by sticks. It is pertinent to note that not a single injury of sticks was found on the dead body of deceased. Therefore, it is clear that PW Nos.1 and 2 tried to involve all the family members in the incident. Both PW Nos.1 and 2 have not specifically stated about the weapons in the hands of particular accused. Looking to the material omissions and contradictions in the evidence of PW Nos.1 and 2 are not reliable against the appellants Kailas and Madhukar, learned trial Court wrongly relied on their evidence against the appellants Kailas and Madhukar. Learned trial Court also discarded the evidence in respect of other accused. The conduct of PW Nos.1 and 2 does not appear to be natural. They are nearest relatives of deceased. They did not try to save deceased. Incident took place on road. There was college etc. They could have made hue and cry, but they ran away. 7. Learned trial Court relied on the discovery of weapon by accused Kailas and Madhukar. They are nearest relatives of deceased. They did not try to save deceased. Incident took place on road. There was college etc. They could have made hue and cry, but they ran away. 7. Learned trial Court relied on the discovery of weapon by accused Kailas and Madhukar. The discovery of weapon is nothing but false because panch witness on the spot panchnama (PW3) Ganesh Rathod has stated in his evidence that the police prepared spot panchnama in his presence. Police seized an axe, sticks, motor cycle, cycle and chappal from the spot of incident itself. It is pertinent to note that both PW Nos.1 and 2 have not stated about any more axe in the hands of other accused. They have only stated that accused Kailas and Madhukar were having axe in their hands. As per the discovery panchnama at the instance of accused Kailas and Madhukar vide Exhs. 89, 90 and 120, two axes were seized from accused Kailas and Madhukar as per their confessional statements. 8. The evidence of prosecution in respect of discovery made by accused Kailas and Madhukar under Section 27 of Indian Evidence Act is not reliable because PW3 Ganesh Rathod has specifically stated in his examination-in-chief itself that the police had seized an axe, sticks, mother cycle, chappal etc. from the spot of incident. When the axe was already seized then there was no any necessity for the Investigating Officer to seize it from the accused. Therefore, it is clear that the discovery shown by the Investigating Officer is nothing but false. It appears from the evidence on record that the prosecution has suppressed the genesis of crime. 9. The evidence of Medical Officer Dr. Sharad Tatewar (PW7) shows that he found 12 injuries on the person of deceased. In his cross-examination, he has admitted as under : "Injury No.1 in col. No.17 of Exh.77 is not possible if the person is lying downwards, so also injury No.2 is not possible if, person is lying face upwards, so also injury No. 3, 4, 5, 8, 9 and 10 are not possible, if person is lying on his left side and injury No.6, 7 are not possible, if the person is lying on the right side. If a person is lying with his head on road and there is assault by axe on his head, there may be or may not be the fracture to the skull. If, such assault is by force, then skull fracture is possible. I did not observe any injuries on his person as a result of assault by stick. If assault is by sharp edged weapon like axe, on temporal region, there is cutting of hair. I did not observe cutting of hair in this case. I did not observe any abrasion on the nose, temple of the deceased. All injuries were not admeasuring 3 to 4 inches in length on left side of neck. I did not observe abrasion on shoulder and wrist of deceased. I did not observe the clothes of the victim to be wet or soiled." 10. Admission of Medical Officer shows that the person who was in lying condition would not have sustained such type of injuries; whereas PW Nos.1 and 2 have stated in their evidence that when deceased was lying, accused persons beat him by axe, sticks etc. The medical officer has stated in his evidence that he did not find any injury by sticks. 11. The evidence adduced by the prosecution is not reliable. Learned trial Court wrongly relied some parts of evidence of PW Nos.1 and 2 and discarded some part of evidence. Learned trial Court ought to have read the evidence as a whole and not in piecemeal. The prosecution created doubt about causing injury by the appellants Kailas and Madhukar. Hence benefit of doubt should go to the accused. Hence, we proceed to pass the following order. "Criminal Appeal No. 90 of 2015 is allowed. The order of conviction and sentence passed by the learned Sessions Judge, Pusad in Sessions Trial No.56 of 2010, dated 29.01.2015 is quashed and set aside. The appellants are acquitted of the offences charged with. The appellants are already on bail. Their bail bonds shall stand cancelled. Criminal Appeal Nos. 137 of 2015; 234 of 2016 and 235 of 2016 are dismissed." Order accordingly.