{"id":124114,"date":"2011-01-25T00:00:00","date_gmt":"2011-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nagpur-bench-nagpur-vs-unknown-on-25-january-2011"},"modified":"2016-04-26T02:52:27","modified_gmt":"2016-04-25T21:22:27","slug":"nagpur-bench-nagpur-vs-unknown-on-25-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nagpur-bench-nagpur-vs-unknown-on-25-january-2011","title":{"rendered":"Nagpur Bench : Nagpur vs Unknown on 25 January, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Nagpur Bench : Nagpur vs Unknown on 25 January, 2011<\/div>\n
Bench: A. H. Joshi, A. B. Chaudhari<\/div>\n
                                          1\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                             \n                               NAGPUR BENCH : NAGPUR\n\n\n\n\n                                                     \n        CRIMINAL APPEAL NOS.229\/2003, 164\/2003, 204\/2003, 244\/2003 and\n                                   614\/2008\n\n\n    ---------------------------------------------------------------------\n\n\n\n\n                                                    \n                              CRIMINAL APPEAL NO.229\/2003\n\n    APPELLANT :-         Sudhakar s\/o Awdhoot Vardhe\n    (Accused no.8)       Aged about 27 years, Occ.Labour\n\n\n\n\n                                           \n                         R\/o Village Sayat, Tq. Bhatkuli,\n                         District Amravati.\n                                ig  ...Versus...\n                              \n    RESPONDENT :-        State of Maharashtra,\n                         through P.S.O. Kholapur,\n                         P.S. Tq. & Distt. Amravati.\n          \n\n    ----------------------------------------------------------------------\n                       [Shri V.G. Bhamburkar, Adv. for appellant]\n                       [Shri M.J. Khan, APP for respondent]\n       \n\n\n\n    ----------------------------------------------------------------------\n\n\n                              CRIMINAL APPEAL NO.164\/2003\n\n\n\n\n\n    APPELLANTS :-        1.    Jagannath s\/o Bhaurao Utane,\n                               Aged about 70 years, Occ : Pensioner.\n\n                         2.    Rajesh s\/o Jagannath Utane\n                               Aged about 34 years, Occ : Agriculturist.\n\n\n\n\n\n                               Both r\/o village Sayat, Tah : Bhatkuli,\n                               Dist : Amravati.\n\n\n                                    ...Versus...\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 16:47:49 :::\n                                        2\n    RESPONDENT :-     The State of Maharashtra,\n\n\n\n\n                                                                          \n                      Through P.S.O. Kholapur,\n                      Tah. & Dist. Amravati.\n\n\n\n\n                                                  \n    ----------------------------------------------------------------------\n                       [Shri Shashank Manohar, Adv. for appellants]\n                       [Shri M.J. Khan, APP for respondent]\n    ----------------------------------------------------------------------\n\n\n\n\n                                                 \n                           CRIMINAL APPEAL NO.204\/2003\n\n    APPELLANTS :-     1.    Duryodhan s\/o Deorao Vardhe,\n\n\n\n\n                                        \n    Ori. Accused            Aged about 48 years,\n                            Occupation   Labourer.\n\n                      2.\n                            \n                            Babulal s\/o Chandumal Vardhe,\n                            Aged about 42 years,\n                            Occupation   Labourer.\n                           \n                      3.    Dadarao Chandumal Vardhe,\n                            Aged about 46 years,\n                            Occupation   Labourer.\n\n                            All R\/o Village Sayat,\n          \n\n                            Taluka Bhatkuli, District Amravati (In Jail).\n       \n\n\n\n                                 ...Versus...\n\n\n    RESPONDENT :-     The State of Maharashtra,\n                      through Police Station Officer,\n\n\n\n\n\n                      Kholapur, Taluka & District Amravati.\n\n\n    ----------------------------------------------------------------------\n                       [Shri J.Y. Ghurde, Adv. for appellants]\n                       [Shri M.J. Khan, APP for respondent]\n\n\n\n\n\n    ----------------------------------------------------------------------\n\n\n                           CRIMINAL APPEAL NO.244\/2003\n\n    APPELLANTS :-     1. Chandu s\/o Ramkrishna Wardhe\n                         aged about 28 years.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:47:49 :::\n                                        3\n                      2.    Vilas s\/o Shrikrushna Wardhe\n\n\n\n\n                                                                          \n                            aged about 25 years.\n\n                      3.    Raju s\/o Awadhoot Samdure\n\n\n\n\n                                                  \n                            aged about 28 years.\n\n                      4.    Rameshwar s\/o Ganpat Wankhade,\n                            aged about 26 years.\n\n\n\n\n                                                 \n                            All residents of Sayat, Taluka         Bhatkuli,\n                            Distt. Amravati.\n\n                            Cri. Accused Nos. 4, 5, 6 & 10.\n                            presently in Jail.\n\n\n\n\n                                        \n                                 ...Versus...\n\n\n    RESPONDENT :-\n                            \n                      The State of Maharashtra\n                      Through Police Station Officer,\n                           \n                      Police Station, Kholapur, District Amravati.\n\n\n    ----------------------------------------------------------------------\n                       [Shri C.S. Kaptan, Adv. for appellants]\n                       [Shri M.J. Khan, APP for respondent]\n          \n\n    ----------------------------------------------------------------------\n       \n\n\n\n                           CRIMINAL APPEAL NO.614\/2008\n\n\n    APPELLANTS :-     1. Abhiman s\/o Arjun Chakre,\n\n\n\n\n\n    (Original            Aged about 50 years, Occupation : Labourer.\n    Accused\n    (In Jail)         2. Ganesh s\/o Zinguji Wardhe,\n                         Aged about 35 years, Occupation :\n                         Labourer, Both residents of Sayat,\n                         Tq. Bhatkuli, Distt. Amravati.\n\n\n\n\n\n                                 ...Versus...\n\n\n    RESPONDENT :-     State of Maharashtra,\n                      through, P.S.O. Kholapur Police Station,\n                      Tq. & Distt. Amravati.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:47:49 :::\n                                             4\n    ----------------------------------------------------------------------\n\n\n\n\n                                                                                 \n                       [Shri J.Y. Ghurde, Adv. for appellants]\n                       [Shri M.J. Khan, APP for respondent]\n    ----------------------------------------------------------------------\n\n\n\n\n                                                         \n                                        CORAM : A.H. JOSHI AND\n                                                A.B. CHAUDHARI, JJ.\n<\/pre>\n
    Date of reserving the judgment   : 14.01.2011
\n    Date of pronouncing the judgment : 25.01.2011<\/p>\n
    J U D G M E N T : (PER : A.B. CHAUDHARI, J.)<\/p>\n
    1.         Criminal Appeal Nos.164\/2003, 204\/2003, 229\/2003 and 244\/2003<\/p>\n
    were filed in this Court by the appellants original accused namely,<\/p>\n
    Jagannath    Bhaurao   Utane     (accused   No.1),    Rajesh       Jagannath         Utane<\/p>\n
    (accused    No.2),   Duryodhan    Deorao    Vardhe   (accused        No.3),       Babulal<\/p>\n
    Chandumal Vardhe (accused No.7), Dadarao Chandumal Vardhe (accused<\/p>\n
    No.9),   Sudhakar    Awdhoot   Vardhe   (accused     No.8),     Chandu       Ramkrishna<\/p>\n
    Vardhe (accused No.4), Vilas Shrikrishna Vardhe (accused No.10), Raju<\/p>\n
    Awdhoot Samdure (accused No.6) and Rameshwar Ganpat Wankhade (accused<\/p>\n
    No.5) against the judgment and order dated 28.2.2003 in Session Trial<\/p>\n
    No.249\/2000, passed by the II nd Ad-hoc Additional Sessions, Amravati,<\/p>\n
    by which they were convicted for the offence punishable under Section<\/p>\n
    302 read with Section 149 of the Indian Penal Code and sentenced to<\/p>\n
    suffer imprisonment for life each and to pay a fine of Rs.2000\/- each,<\/p>\n
    in default of payment of fine to further suffer simple imprisonment<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:47:49 :::<\/span>
\n                                                    5<\/span>
\n    for three months each, further convicted for the offence punishable<\/p>\n
    under Section 147 of the Indian Penal Code and sentenced to suffer<\/p>\n
    rigorous    imprisonment         for   six    months    each      and     to    pay    a      fine   of<\/p>\n
    Rs.500\/- each, in default of payment of fine to further suffer simple<\/p>\n
    imprisonment for one month each and further convicted for the offence<\/p>\n
    punishable under Section 148 of the Indian Penal Code and sentenced to<\/p>\n
    suffer rigorous imprisonment for one year each and to pay a fine of<\/p>\n
    Rs.1,000\/- each, in default of payment of fine to further suffer<\/p>\n
    simple imprisonment for two months each.\n<\/p>\n
               Criminal Appeal No.614\/2008 was filed by accused Abhiman s\/o<\/p>\n
    Arjun Chakre (accused No.1) and Ganesh s\/o Zinguji Wardhe (accused<\/p>\n
    No.2) against the judgment and order dated 30.06.2008, passed by the<\/p>\n
    4th   Ad-hoc    Additional       Sessions      Judge,      Amravati        in     Session       Trial<\/p>\n
    No.194\/2003 by which they were convicted for the offence punishable<\/p>\n
    under    Section   147      of   Indian      Penal    Code      and     sentenced        to    suffer<\/p>\n
    rigorous    imprisonment         for   two    years     each     and     to     pay    a    fine     of<\/p>\n
    Rs.1000\/-      each,   in   default     of    payment      of    fine     to    further        suffer<\/p>\n
    rigorous imprisonment for three months each, further convicted for the<\/p>\n
    offence punishable under Section 148 of the Indian Penal Code and<\/p>\n
    sentenced to suffer rigorous imprisonment for three years each and to<\/p>\n
    pay a fine of Rs.1000\/- each, in default of payment of fine to further<\/p>\n
    suffer    rigorous     imprisonment          for   three     months       each,       and     further<\/p>\n
    convicted for the offence punishable under Section 302 r\/w Section 149<\/p>\n
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\n                                            6<\/span>
\n    of the Indian Penal Code and sentenced to suffer life imprisonment<\/p>\n
    each and to pay a fine of Rs.1,000\/- each, in default of payment of<\/p>\n
    fine to further suffer rigorous imprisonment for two years each.\n<\/p>\n
              As these two appellants in Criminal Appeal No.614\/2008 were<\/p>\n
    absconding during earlier trial, their trial was separated and after<\/p>\n
    they were arrested, Session Trial No.194\/2003 was conducted.\n<\/p>\n
    FACTS :<\/p>\n
\n\n    2.        The   incident\n                               \n                               dated    27.6.2000   which   took      place      at    Sayat\n\n<\/pre>\n
    Bhatkuli Road in the night was the subject matter of both the Session<\/p>\n
    Trial Nos.249\/2000 and 194\/2003. The earlier Session Trial No.249\/2000<\/p>\n
    was held after separating the trial of two accused persons namely,<\/p>\n
    Abhiman s\/o Arjun Chakre and Ganesh s\/o Zinguji Wardhe since they were<\/p>\n
    absconding, but later on their trial was also held vide Session Trial<\/p>\n
    No.194\/2003.\n<\/p>\n
              The case of the prosecution as disclosed before the trial<\/p>\n
    Court was that on 27.6.2000 at about 9 to 10 p.m. P.W. 1 – Shivkumar<\/p>\n
    Anandrao Wardhe had gone towards the statue of Dr. Babasaheb Ambedkar<\/p>\n
    in his village.    He noticed that the one tube-light from the electric<\/p>\n
    pole near the statue of Babasaheb was not seen, hence, he went to<\/p>\n
    nearby Samaj Mandir and found Jagannath Utane, Rajesh Jagannath Utane,<\/p>\n
    Chandu    Ramkrushna   Wardhe,     Dadarao   Chintumanji      Wardhe,        Duryodhan<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:47:49 :::<\/span>
\n                                                 7<\/span>
\n    Deoraoji Wardhe near the hall of the Samaj Mandir.                  He heard noise and<\/p>\n
    found Vilas Shrikrushna Wardhe, Dinesh @ Raju Samdure and Rameshwar<\/p>\n
    Champat Wankhade removing the glass balls of marble from lotus in the<\/p>\n
    temple.    P.W. 1 – Shivkumar obstructed them but they asked him to mind<\/p>\n
    his    own business.         Therefore,    P.W.   1     Shivkumar        went     away,      but<\/p>\n
    Rameshwar, Vilas and Dinesh @ Raju held him and caught hold of his<\/p>\n
    shirt collar and also abused him and was threatened by Jagannath Utane<\/p>\n
    with life.       At that time, his cousin, Kashinath Wardhe arrived to whom<\/p>\n
    he told the incident. Thereafter, all of them went to one Sharafat,<\/p>\n
    auto rickshaw driver and proceeded towards Police Station Bhatkuli,<\/p>\n
    where they lodged report of the incident (Exh.39).                      While returning<\/p>\n
    back from the police station, they noticed obstruction on the road by<\/p>\n
    means of stones, as a result, the auto rickshaw in which they were<\/p>\n
    travelling was stopped. They saw Rajesh Jagannath Utane and Jagannath<\/p>\n
    Bhanudas Utane on the motorcycle and other persons were in the two<\/p>\n
    auto rickshaws. The persons from auto rickshaws came out with weapons<\/p>\n
    and Jagnnath and Rajesh who were sitting on a motorcycle gave a signal<\/p>\n
    to    assault.    Dinesh   @   Raju   caught    hold   the    collar     of    auto     driver<\/p>\n
    Sharafat and pulled him down and Rameshwar started assaulting him.\n<\/p>\n
    Since P.W.1         Shivkumar got frightened, he and his brother escaped<\/p>\n
    from the auto rickshaw and started running to save their life towards<\/p>\n
    Bhatkuli road. While running, his brother Samadhan was caught by the<\/p>\n
    accused    persons,    who     started    assaulting    him    with      sharp      cutting<\/p>\n
    weapon and sticks and kicks.              P.W.1- Shivkumar was running ahead of<\/p>\n
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\n                                                8<\/span>
\n    Samadhan but watching behind.       He after running for sometime concealed<\/p>\n
    himself behind the bush and started looking the incident from the bush<\/p>\n
    and found Jagannath was giving kick blows to Samadhan. Raju was giving<\/p>\n
    blows to him with       sharp weapon’ when Vilas, Sudhakar and Chandu were<\/p>\n
    giving him blows with stick and iron pipe.            Rameshwar was beating with<\/p>\n
    sticks.   The second group of the accused persons namely, Rajesh Utane,<\/p>\n
    Dadarao Chantumanji Wardhe, Babulal Chantumanji Wardhe, Ganesh Zinguji<\/p>\n
    Wardhe, Duryodhan Wardhe, Abhiman Chakre were hurling abuses and were<\/p>\n
    saying that his brother Samadhan should be killed and thereafter they<\/p>\n
    left the deceased injured.\n<\/p>\n
                                ig     P.W.1       Shivkumar reached his house and<\/p>\n
    narrated the incident to his brother Mohan Wardhe, Subhash Sheshrao<\/p>\n
    Ingle, Kashinath kisanrao Wardhe, Bhimrao Ukardaji Wardhe and they<\/p>\n
    went to the site of the offence, who found that Samadhan was in dead<\/p>\n
    condition. All of them then went to Bhatkuli police station and lodged<\/p>\n
    report (Exh.40).        After investigation, chargesheet was filed and the<\/p>\n
    trials proceeded.        All the accused persons denied the charge framed<\/p>\n
    against   them.   The    trial   Court   thereafter    heard      the     evidence        and<\/p>\n
    parties and made the impugned judgments, convicting the appellants.\n<\/p>\n
    SUBMISSIONS :\n<\/p>\n
    3.        In support of the Criminal Appeals, various Counsel for the<\/p>\n
    parties in these appeals made the following submissions.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:47:49 :::<\/span>
\n                                                   9<\/span><\/p>\n
                 (i)         Vide Exh.39 and 40, reports lodged to the Police<\/p>\n
    Station Bhatkuli by P.W. 1             Shivkumar, claim was made that the first<\/p>\n
    incident      reported    under    Exh.39     was   seen    by     Shriram        Wardhe       and<\/p>\n
    Kashinath Wardhe, while claim was made in respect of the incident i.e.<\/p>\n
    incident of murder that P.W. 1                Shivkumar had narrated the incident<\/p>\n
    of murder immediately after its occurrence to Mohan Wardhe, Suhash<\/p>\n
    Ingle, Kashinath Wardhe (cousin) and Bhimrao Wardhe. The prosecution<\/p>\n
    examined P.W. 5          Bhimrao Urkad Wardhe, who turned hostile, but the<\/p>\n
    prosecution did not at all examine other persons, who were eventually<\/p>\n
    closely related to P.W. 1
\n                                  ig       Shivkumar.     P.W. 6          Sharafatkhan, auto<\/p>\n
    rikshaw driver, an independent witness was examined, but he turned<\/p>\n
    hostile. Thus, the entire prosecution case rested only on a single<\/p>\n
    and   sole    testimony    of P.W.      1      Shivkumar,     who     was    an    interested<\/p>\n
    witness, actively involved in the previous background of the alleged<\/p>\n
    political     rivalry     told    by   him.   Therefore,     the     testimony         of    this<\/p>\n
    witness P.w.1       Shivkumar is required to be rejected outright.\n<\/p>\n
                 (ii)        The omissions amounting to contradictions in the<\/p>\n
    evidence of P.W. 1-Shivkumar if carefully seen go to the root of the<\/p>\n
    prosecution story and affects the quality of evidence of P.W. 1<\/p>\n
    Shivkumar and therefore, his testimony is required to be rejected<\/p>\n
    since his testimony is full of omissions and contradictions.\n<\/p>\n
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\n                                                10<\/span><\/p>\n
               (iii)     Admittedly, the time of incident is said to be in<\/p>\n
    the midnight and P.W. 1- Shivkumar claimed to have been running fast<\/p>\n
    to save his life for about seven minutes.               His tall claim about being<\/p>\n
    an eye witness in the dead night hours while running for his life has<\/p>\n
    to be rejected.     His further claim that the injuries were caused by<\/p>\n
    sharp weapons is falsified and is in contradiction with the medical<\/p>\n
    evidence which shows no injuries caused by any sharp weapon.\n<\/p>\n
               (iv)      The      version     of     P.W.   1-     Shivkumar         is    clearly<\/p>\n
    falsified since there are only six injuries on the person of the<\/p>\n
    deceased as per post mortem report. It is difficult to believe that<\/p>\n
    when 12 accused persons had assaulted by various weapons for quite<\/p>\n
    sometime, there would be only six injuries.\n<\/p>\n
               (v)       The testimony of P.W. 1 – Shivkumar does not find<\/p>\n
    corroboration anywhere and there is no explanation whatsoever tendered<\/p>\n
    by   the   prosecution   as    to   why    his    other      relatives      who       were    the<\/p>\n
    witnesses, according to him, as mentioned in F.I.Rs. (Exh. 39 and 40)<\/p>\n
    were not examined before the Court.\n<\/p>\n
               (vi)      The   accused        persons   who      are   said     to    have       only<\/p>\n
    abused cannot be said to be the members of unlawful assembly and<\/p>\n
    therefore, the conviction of all accused persons recorded by the trial<\/p>\n
    Court in both the session trials is illegal, contrary to law and at<\/p>\n
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\n                                                 11<\/span>
\n    any rate the Courts below ought to have extended benefit of doubt to<\/p>\n
    the     accused    persons.       The    learned    Counsel        for    the    appellants,<\/p>\n
    therefore, prayed for acquittal.\n<\/p>\n
    4.            Per contra, learned A.P.P. for the respondent                     State in all<\/p>\n
    appeals    opposed    the     criminal    appeals   filed     by    the    appellants        and<\/p>\n
    argued that it is not necessary to reject the testimony of sole eye<\/p>\n
    witness P.W.1 – Shivkumar merely because he happens to be interested<\/p>\n
    witness or the brother of the deceased.             The Courts below have in both<\/p>\n
    session trials carefully assessed the evidence of P.W. 1                           Shivkumar<\/p>\n
    and have come to conclusion that P.W. 1                     Shivkumar was reliable,<\/p>\n
    trustworthy and natural witness.            There is no reason why his testimony<\/p>\n
    should be rejected and nor there is any reason why insistence for<\/p>\n
    corroboration of his evidence by any other witness should be made.\n<\/p>\n
    The Courts below have marshalled the evidence in entirety and having<\/p>\n
    found    no    loopholes    in   the     evidence   of   prosecution            have   rightly<\/p>\n
    convicted the appellants in both sets of appeals.                          Learned A.P.P.\n<\/p>\n
    prayed for dismissal of all these appeals and urged this Court to<\/p>\n
    maintain the conviction of all the appellants.\n<\/p>\n
    CONSIDERATION :\n<\/p>\n
    5.            We have heard learned Counsel for the parties at length and<\/p>\n
    we have also carefully perused the record and proceedings of the<\/p>\n
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\n                                                 12<\/span>
\n    Courts below.        There is no doubt in our mind that the conviction can<\/p>\n
    be based on the sole testimony of witness notwithstanding that such<\/p>\n
    witness is an interested witness or witness related to the deceased<\/p>\n
    and in this case the brother.               There is no need to highlight this<\/p>\n
    aspect any more.        In the instant case, however, we are required to<\/p>\n
    examine the truthfulness of the testimony of P.W. 1                          Shivkumar in<\/p>\n
    accordance with law and the settled principles of law in the matter of<\/p>\n
    appreciation of evidence after marshalling the evidence. In this view<\/p>\n
    of the matter, we have decided to carefully scan the testimony of P.W.\n<\/p>\n
    1<\/span><\/p>\n
         Shivkumar to find out whether the prosecution has proved its case<\/p>\n
    beyond reasonable doubt and whether the conviction can be upheld.\n<\/p>\n
    6.        It is seen from the oral report (Ex.39) that was initially<\/p>\n
    lodged by P.W. 1        Shivkumar that Shriram Wardhe and Kashinath Wardhe<\/p>\n
    (cousin)his relatives had witnessed the said earlier incident and had<\/p>\n
    saved   the   life    of P.W.   1       Shivkumar.      Similarly,        Mohan      Wardhe,<\/p>\n
    Subhash Ingle, Kashinath Wardhe (cousin) and Bhimrao Wardhe were the<\/p>\n
    witnesses to whom he had immediately narrated the incident of murder<\/p>\n
    on the fateful night and he had gone to lodge the report (Exh.40)<\/p>\n
    along with them to Police Station in the dead hours of night after all<\/p>\n
    of them had visited the place where the dead body was lying.                                The<\/p>\n
    prosecution    examined    P.W.     5   –   Bhimrao   Wardhe     and    an     independent<\/p>\n
    witness P.W. 6        Sharafatkhan Shabbirkhan Pathan but both of them did<\/p>\n
    not support the prosecution story.               Other witnesses namely, Shriram<\/p>\n
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\n                                                 13<\/span>
\n    Wardhe, Mohan Wardhe, Subhash Ingle and Kashinath Wardhe were not<\/p>\n
    examined by the prosecution, who were important witnesses on reports<\/p>\n
    Exh.39 and 40 and even the incident of murder which was told to them<\/p>\n
    by P.W. 1            Shivkumar.      No explanation is coming forth from the<\/p>\n
    prosecution     as     to   why   these   witnesses        were    not    examined        by     the<\/p>\n
    prosecution. It would not have been necessary for the prosecution to<\/p>\n
    examine these witnesses but it became expedient from the prosecution<\/p>\n
    to do so because we find that the evidence of P.W. 1                                   Shivkumar<\/p>\n
    cannot be believed as a sole testimony to the incident of murder for<\/p>\n
    the reasons which we would indicate later.                   It is in this background,<\/p>\n
    we find that the examination of these witnesses by the prosecution was<\/p>\n
    most essential and their non-examination is a factor which shakes the<\/p>\n
    prosecution story.\n<\/p>\n
    7.        Upon reading of the testimony of P.W. 1                         Shivkumar at the<\/p>\n
    outset, we find that according to him, it was midnight when he and<\/p>\n
    Samadhan Wardhe were coming back after lodging report to the Police<\/p>\n
    Station Bhatkuli at Bhatkuli Sayat road.                   When their auto rickshaw was<\/p>\n
    obstructed      by    the   stones     placed    on    the    road,      Rajesh      Utane       and<\/p>\n
    Jagannath Utane were on motorcycle, while other persons, who were in<\/p>\n
    the two auto rickshaws came out of the auto rickshaws with weapons.\n<\/p>\n
    He has not named who were the other persons. That Rajesh Utane and<\/p>\n
    Jagannath Utane had given signal to the other accused persons that<\/p>\n
    they   should    assault     is   an    omission      in    the   report      (Exh.66).           In<\/p>\n
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\n                                                  14<\/span>
\n    substantive evidence he has not made clear as to signal was given to<\/p>\n
    assault whom and the manner in which signal was given.                       Whether signal<\/p>\n
    was    given   by   them    by    shouting   or   by   hands    or    by    other      mode     of<\/p>\n
    expression is not at all stated by him. In our opinion, in respect of<\/p>\n
    Jagannath Utane and Rajesh Utane this is a very material deficiency or<\/p>\n
    lacuna with the prosecution as no other role is attributed to them. As<\/p>\n
    to the first incident under Exh.39, the presence of Jagannath Utane<\/p>\n
    and Rajesh Utane near Samaj Mandir on the platform – ‘Ota’ is also an<\/p>\n
    omission in the report (Exh.39) so also the life threat given to him<\/p>\n
    by Jagannath Utane.\n<\/p>\n
                                     In the cross-examination, he stated that even<\/p>\n
    before commencement of incident of assault on Samadhan Wardhe he and<\/p>\n
    Samadhan Wardhe started running for their life and P.W. 1                            Shivkumar<\/p>\n
    was ahead of Samadhan and when Samadhan was caught, he found that<\/p>\n
    Samadhan was being assaulted by those persons following them.                            P.W. 1<\/p>\n
      Shivkumar was running for seven minutes for his life.                             It is not<\/p>\n
    difficult for us to come to the conclusion that P.W. 1                               Shivkumar<\/p>\n
    must have run more than half kilometer as he had run for seven minutes<\/p>\n
    that too for saving his life, when some people were chasing him, whose<\/p>\n
    names, he has not given. He then claimed that he took shelter behind a<\/p>\n
    bush    and    watched     the    incident   of   murder   therefrom        i.e.     after      he<\/p>\n
    stopped running.           During investigation, no attempt was made by the<\/p>\n
    Investigating Officer to locate the bush from which P.W. 1                           Shivkumar<\/p>\n
    claimed to have seen the incident after he stopped running, nor there<\/p>\n
    is any whisper about it or the details about it anywhere in the spot<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 16:47:49 :::<\/span>
\n                                         15<\/span>
\n    panchanama or in the substantive evidence of any of the witnesses.                 It<\/p>\n
    is not possible for us to believe that after running for seven minutes<\/p>\n
    for more than half kilometer in the dead hours of night at 1.30 a.m.<\/p>\n
    by sitting behind the bush he had seen the entire incident of murder.\n<\/p>\n
    This appears to be highly improbable and all the more so because he<\/p>\n
    stated thus in his cross-examination about his eye sight.\n<\/p>\n
                      If the figure is at long distance I cannot tell<\/p>\n
           whether it is of human or an animal.      But if the figure<\/p>\n
           is nearer I can say whether it is of human or animal.
\n           From the close figure I cannot tell whether it is of a
\n           male or female.\n<\/p>\n
    8.      It is then seen from his cross-examination that according to<\/p>\n
    him sharp edged weapons were used.   We quote relevant portion from his<\/p>\n
    cross-examination dated 3.8.2002.\n<\/p>\n
                      All persons were having sharp edged weapons.\n<\/p>\n
           Knife, sword, axe, battle axe, spear are sharp edged<\/p>\n
           weapons.      It is true that by sharp edged weapons as
\n           above the persons had assaulted my brother and committed
\n           his murder.\n<\/p>\n
    9.      From the above evidence it is clear that P.W. 1                 Shivkumar<\/p>\n
    claimed that sharp edged weapons described by him were used by the<\/p>\n
    assailants.   However, we find from the evidence of P.W. 9- Dr. Iqbal<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:47:49 :::<\/span>
\n                                              16<\/span>
\n    Yusuf Baig that following injures were found.\n<\/p>\n
                (1)      Fracture tobea and fabula of right leg lower 1\/3
\n    knee joint, femur shaft middle.\n<\/p>\n
               (2)       Left leg : fracture tobea fabula upper 1\/3 with
\n    lacerated wound on middle aspect of leg upper 1\/3, size \u00bd cm. x \u00bd cm.\n<\/p>\n
    deep muscle.      Lacerated wound on middle aspect of leg on middle 1\/3,
\n    size \u00bd cm x \u00bd cm. deep muscle.\n<\/p>\n
               (3)       Lacerated wound on middle toe tip, size 1 cm. x \u00bd<\/p>\n
    cm. deep muscle.\n<\/p>\n
               (4)       Right   upper   limb     forearm    – Fracture          radius       ulna<\/p>\n
               (5)<\/span><\/p>\n
    lower 1\/3, Fracture radius ulna upper 1\/3.\n<\/p>\n
                         Right upper limb arm : Fracture humours middle 1\/3.\n<\/p>\n
               (6)       Right forearm : Three punctured wound on posterior
\n    aspect, size – \u00bd c.m. x \u00bd cm. deep muscle.\n<\/p>\n
               (7)       Abrasions over right elbow posteriorly, right cheek<\/p>\n
    right infra orbitral region, left lateral aspect of forehead.\n<\/p>\n
    10.        None of the above injuries can be caused by sharp cutting<\/p>\n
    weapons as claimed by him.\n<\/p>\n
    11.        The cumulative effect of all the above circumstances lead us<\/p>\n
    to believe that the evidence of P.W. 1           Shivkumar is not truthful and<\/p>\n
    it will be risky to base conviction of the appellants on the sole or<\/p>\n
    singular    testimony   of   P.W.    1        Shivkumar.           In    addition,          the<\/p>\n
    prosecution did not at all recover any of the weapons from any of the<\/p>\n
    accused persons.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:47:49 :::<\/span>
\n                                                17<\/span><\/p>\n
    12.      The net result of the above discussion is that it is not<\/p>\n
    possible for us to confirm the conviction of the appellants solely on<\/p>\n
    the   testimony    of    P.W.    1        Shivkumar     in    view     of     the     serious<\/p>\n
    discrepancies and truthfulness about his evidence. The prosecution did<\/p>\n
    not rely upon any other evidence except the sole testimony of P.W. 1<\/p>\n
    Shivkumar. We, therefore, find that benefit of doubt will have to be<\/p>\n
    extended to the accused persons in accordance with the settled legal<\/p>\n
    principles.     For the above reasons, therefore, we make the following<\/p>\n
    order.\n<\/p>\n
                                         O R D E R<\/p>\n
             (i)            Criminal     Appeal   Nos.229\/2003,       164\/2003,         204\/2003,<\/p>\n
    244\/2003 and 614\/2008 are allowed.\n<\/p>\n
             (ii)           All     accused       persons        in      Criminal           Appeal<\/p>\n
    Nos.229\/2003, 164\/2003, 204\/2003, 244\/2003 and 614\/2008 are acquitted.\n<\/p>\n
             (iii)          Accused persons, who are in jail, be set at liberty<\/p>\n
    forthwith.\n<\/p>\n
             (iv)           Bail bonds of accused persons, who are on bail,<\/p>\n
    hereby stand cancelled.\n<\/p>\n
                      Judge                                              Judge\n\n\n\n\n    ssw\n\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 16:47:49 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Nagpur Bench : Nagpur vs Unknown on 25 January, 2011 Bench: A. H. Joshi, A. B. Chaudhari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NOS.229\/2003, 164\/2003, 204\/2003, 244\/2003 and 614\/2008 ——————————————————————— CRIMINAL APPEAL NO.229\/2003 APPELLANT :- Sudhakar s\/o Awdhoot Vardhe (Accused no.8) Aged about […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-124114","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nNagpur Bench : Nagpur vs Unknown on 25 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nagpur-bench-nagpur-vs-unknown-on-25-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nagpur Bench : Nagpur vs Unknown on 25 January, 2011 - 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