Bombay High Court
The State Of Mah.Thr. Pso Buldana vs Ukharda Natthu Raut And Another on 13 April, 2017
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.303 OF 2004
The State of Maharashtra,
through P.S.O., Khamgaon (R)
Dist. Buldana. ....... APPELLANT
...V E R S U S...
1] Ukharda Natthu Raut
Aged about 65 years.
2] Sopan Ukharda Raut
Aged 35 years.
Both r/o Parkhed
P.S., Khamgaon,
Dist. Buldana. ....... RESPONDENTS
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Shri S.D. Sirpurkar, APP for Appellant.
Shri S.V. Sirpurkar, Advocate for Respondent Nos.1 & 2.
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CORAM: B.P. DHARMADHIKARI AND
V.M. DESHPANDE, JJ.
th APRIL, 2017.
DATE: 13
ORAL JUDGMENT (PER B.P. Dharmadhikari, J.)
1] The State of Maharashtra has filed an appeal before us challenging judgment and order dated 05.02.2004 delivered by Second Additional Sessions Judge, Khamgaon in Sessions Case No.46 of 1998. By that judgment the Sessions Court has acquitted respondent No.1-Ukharda and his son respondent No.2-Sopan of ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 2/9 offences punishable under Section 302 read with Section 34 of the Indian Penal Code. We have heard Shri S.D. Sirpurkar, Additional Public Prosecutor for appellant/State and Shri S.V. Sirpurkar, Advocate for respondents.
2] Learned A.P.P. submits that there are about five eye witnesses who have consistently spoken about the assault with an axe on deceased Mahadeo. That evidence has been overlooked on trivial grounds. Our attention is invited to report of Chemical Analyzer to show that human blood of group-B is found on axe used as weapon. It is further stated that Mahadeo happened to be son of Ukharda from first wife and as Mahadeo was demanding his due share in agricultural land, because of this demand Mahadeo was eliminated.
3] Advocate Sirpurkar in reply submits that incident is alleged to be dated 05.02.1998 and as per custody paper, accused persons have been arrested on 09.02.1998, but no arrest panchnama has been drawn. The panchnama prepared at the time of arrest could have shown existence of blood stained clothes on person of respondent, but this panchnama is missing in the matter. ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 3/9 4] Incident was reported to Police by P.W.1 on 06.02.1998 while on the date of incident itself Police Station Officer Dongardive had visited spot and was aware of the crime. P.W.1 deposed that he went to Police Station Khamgaon to lodge report, but then report lodged is not on 05.02.1998, but on 06.02.1998. The Trial Court has looked into this controversy and disbelieved that report or F.I.R.
5] In said report Exh.32, P.W.1 has named seven persons as eye witnesses. However, only one out of them has been examined as P.W.8, while statements of others have not been recorded at all. Person examined as eye witnesses in Court are introduced to suit its object by prosecution and there is unnecessary and undue delay in recording their police statements. 6] Though the witnesses named Sopan only as an assailant, cognizance has been taken also against respondent No.1-Ukharda. Our attention is drawn to requisition sent to Chemical Analyzer to urge that clothes of Sopan though seized have not been sent to Chemical Analyzer and blood group of deceased has not been brought on record.
::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 4/9 7] He points out that Trial Court has found no material against respondent No.1-Ukharda and given benefit of doubt to respondent No.2-Sopan. He has placed reliance on the observations in the impugned judgment.
8] We find that in the present matter Trial Court has looked into relevant material and thereafter proceeded to give clean acquittal to respondent No.1-Ukharda and has given benefit of doubt to respondent No.2-Sopan. Report is lodged by P.W.1 on 06.02.1998, which has been noted by Police Station Officer D.D. Dongardive and that report is at Exh.32. Printed F.I.R. prepared on its basis is appearing thereafter. In F.I.R., time of occurrence is mentioned as between 19:00 hrs. to 19:30 hrs. Intimation is received in Police Station on 06.02.1998 at 00:30 hrs. P.W.1 who has lodged that report denied the fact that he did not lodge report on 06.02.1998.
9] Deposition of eye witness P.W.3-Anil shows that on 05.02.1998, he was at his flour mill and at 07:00 p.m. when he was sitting on the ota with Manohar and Narayan, they heard a loud shout. Hence, they ran in that direction and saw that accused Sopan inflicted axe blow on Mahadeo. He does not state that ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 5/9 Ukharda was present there and does not take his name at all. He further states that P.S.I. Dongardive, reached spot between 07:30 to 07:45 p.m. i.e. on 05.02.1998 itself. P.W.5-Devendra states that deceased Mahadeo was sitting in his house at 06:00 p.m. Then along with Mahadeo, he went for purchasing bidi. Mahadeo purchased bidi from shop of Devidas Thakare. Thereafter, when they were standing on road, Sopan arrived and inflicted axe blow on Mahadeo. He points out three blows and again does not utter name of Ukharda at all. His deposition has been recorded on 05.01.2004 and at that time he was 18 years of age, thus at the time of incident, he was about 12 years old. His cross-examination shows that there was scuffle between Mahadeo and Sopan, but he could not hear conversation going on between them and was not aware about it because of distance. He, however, then volunteered that Sopan came there suddenly and assaulted Mahadeo. It means that there was some quarrel and a scuffle between deceased and assailant. Thus, this witness admits of scuffle and he was standing with Mahadeo hence, it is difficult to accept that he did not hear conversation between Sopan and Mahadeo. This witness therefore, is not making clean breast of the matter.
::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 6/9 10] P.W.6-Narayan points out demand by Mahadeo of his share on earlier occasion and then speaks of actual incident. He was sitting with P.W.3-Anil and went with Anil after hearing shout. His statement has been recorded by Police on next day. He again does not name Ukharda at all. Deposition of P.W.7-Manohar, who was sitting with them is on same line. However, in cross-examination he states that when he reached the spot, he did not see any injury on the body of Mahadeo. However, thereafter, he added that first assault was already made and two assaults were made in his presence. P.W.8-Laxman Sananse is the person named in his report by P.W.1, he again narrates same story. He accepts that Police has recorded his statement on 12.04.1998. He points that he was out of village from 06.02.1998 to 10.02.1998. Thus delay after 10.02.1998 till 12.04.1998 has not been explained.
11] Thus, none of these witnesses name respondent No.1-Ukharda, all of them point out only Sopan as person inflicting the injuries on Mahadeo.
12] P.W.6-Narayan Tukaram Raut is the grand-father of witness Devendra (P.W.5).
::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 7/9 13] Not examining persons named in the report or then recording their statements under Section 161 Cr.P.C. belatedly without any explanation show a design and contention of Advocate Sirpurkar that witnesses ready and willing to depose against the accused persons have been searched out, therefore, cannot be easily brushed aside.
14] Remand papers show that accused were arrested on 06.02.1998. However, there is no arrest panchnama showing that any accused was putting on blood stained clothes at the time of his arrest. Requisition sent to Chemical Analyzer (Exh.28) shows that an iron axe allegedly seized from Sopan along with other properties taken into custody and belonging to deceased Mahadeo were sent to Chemical Analyzer. There is no mention of clothes of accused persons in it.
15] In this situation, when the statements of prosecution witnesses are not recorded promptly, F.I.R. also was not registered promptly and unnecessarily respondent No.1-Ukharda was shown as accused No.1 view reached and discussion by Trial Court does not appear to be either erroneous or perverse. ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 8/9 16] P.W.2-Punjaji has been examined by prosecution to prove discovery of axe under Section 27 of the Evidence Act from accused No.2-Sopan. He deposed that Police obtained his signature on paper and thereafter all of them along with Sopan went to house of Sopan where from below the heap of cotton, Sopan took out an axe with blood stains. It was seized in his presence. In cross-examination this witness has admitted that Sopan was residing in joint family. Memorandum of panchnama reveals that all entered the house and then accused took out iron axe concealed in heap of cotton. Panchnama gives dimensions of axe and the house property of Sopan, but does not mention the sealing of property i.e. axe after its seizure. P.W.2-Punjaji also does not at all bring on record any such sealing. 17] In this situation, we find that benefit of doubt given to Sopan also cannot be held to be perverse.
18] We, therefore, proceed to pass following order:
[i] Judgment and order dated 05.02.1994 delivered by Second Additional Sessions Judge, Khamgaon in Sessions Case No.46 of 1998, is maintained.::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:42:12 ::: apeal303.04.J.odt 9/9
[ii] Criminal Appeal is dismissed.
[iii] Muddemal property be dealt with as directed by the
Trial Court after appeal is over.
JUDGE JUDGE
NSN
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