{"id":244252,"date":"2002-12-04T00:00:00","date_gmt":"2002-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-through-the-vs-chandrabhan-so-mahagu-bawankule-on-4-december-2002"},"modified":"2016-09-27T21:38:24","modified_gmt":"2016-09-27T16:08:24","slug":"state-of-maharashtra-through-the-vs-chandrabhan-so-mahagu-bawankule-on-4-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-through-the-vs-chandrabhan-so-mahagu-bawankule-on-4-december-2002","title":{"rendered":"State Of Maharashtra, Through The … vs Chandrabhan S\/O Mahagu Bawankule on 4 December, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
State Of Maharashtra, Through The … vs Chandrabhan S\/O Mahagu Bawankule on 4 December, 2002<\/div>\n
Equivalent citations: 2003 BomCR Cri<\/div>\n
Author: D Sinha<\/div>\n
Bench: D Sinha, S Kharche<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 D.D. Sinha, J. <\/p>\n
 1. Heard  Shri  Dhote,  learned   Additional   Public
\nProsecutor  for  the  appellant, and Shri Gupta, learned
\nCounsel for the respondent.\n<\/p>\n
 2.   The State has filed the instant appeal against the
\njudgment  and  order  dated  18.10.1989  passed  by  the
\nAdditional  Sessions Judge, Nagpur in Sessions Trial No.
\n70\/1996 whereby respondent is acquitted of  the  offence
\npunishable under Section 302 of Indian Penal Code.\n<\/p>\n
 3. The prosecution case, in nutshell, is as follows :
\n  The   respondent  and  deceased  Ramesh  were  the
\nresidents of  village  Banpuri  and  their  agricultural
\nfields were  adjacent to each other.  It is alleged that
\nthere was a quarrel between them for taking  water  from
\ncanal.  The  incident  occurred  on  6.12.1985.    It is
\nalleged that on that day deceased Ramesh was sitting  at
\nabout 9.30 p.m.   to  10  p.m.   on the flag post.  PW 4
\nDoma and Raghoba came there and also sat on the platform
\nof the flag post.  After  taking  meal,  people  of  the
\nvillage normally used to assemble near the flag post for
\nchitchatting.   On  the day of incident, deceased Ramesh
\nalso came and sat on that platform.  At the distance  of
\nabout  60-70 feet from that platform towards West, there
\nwas a shop of the respondent.  In  front  of  his  shop,
\nthere was  an  electric  pole  having tubelight.  At the
\nrelevant time, respondent came  from  the  direction  of
\nshop and  started abusing without naming any person.  It
\nis alleged that deceased Ramesh asked the respondent why
\nhe was abusing people.  To that, respondent told him  to
\nkeep quiet  since  he  was  not  abusing him.  It is the
\nprosecution case that respondent provoked the  deceased.
\nThe  deceased went towards the respondent and respondent
\nalso came towards the deceased.  They met near the house
\nof Harishchandra Bawankule.  There was a  pole,  but  it
\nhad no  bulb  or  tubelight.    It  is  alleged that the
\nrespondent gave a blow of large knife on  the  chest  of
\nthe deceased.    The  deceased  at once fell down on the
\nground saying “Melore Bapa”.  PW 4 Doma and Raghoba, who
\nwere present on the flag post, rushed towards him.  They
\nsaw bleeding injury on  the  chest  of  deceased.    The
\nrespondent  fled  away  from  the  place  with  a knife.
\nDeceased Ramesh succumbed to the injuries on  the  spot.
\nThe dead  body  was  brought  under  a banyan tree.  The
\nfather of the deceased came on the spot.  The brother of
\nthe deceased also came there.  Police Patil and Sarpanch
\nwere called.  A report was scribed and forwarded to  the
\nPolice Station with the brother of the deceased, namely,
\nRamchandra,  on  the  basis  of  which  an  offence  was
\nregistered.\n<\/p>\n
 4. The Police  came  on  the  spot.     The   inquest
\npanchanama  as  well as spot panchanama were carried out
\non the morning of 7.12.1985.  The dead  body  of  Ramesh
\nwas  referred  to  the  Medical  Officer for post mortem
\nexamination.  It is alleged that  the  respondent  after
\nthe incident went to the house of his relative at Ramtek
\nand  made  an extra judicial confession to PW 1 Surendra
\nWadibhasme.  PW 1 Surendra Wadibhasme brought him to the
\nPolice Station, Ramtek and respondent  was  arrested  in
\nthe Police   Station,   Ramtek.     The  respondent  was
\ninterrogated in the presence of panchas  and  knife  was
\nseized at  the  instance  of the respondent.  There were
\nblood stains on the clothes  of  the  respondent,  which
\nwere seized  by  the  Police.  The Investigating Officer
\nrecorded the statements of witnesses  and  referred  the
\nlarge  knife,  clothes  of the deceased, blood sample of
\nthe  respondent  and  clothes  of  the  accused  to  the
\nChemical Analyser and after completion of investigation,
\ncharge-sheet  was  filed  against the respondent for the
\noffence punishable under Section  302  of  Indian  Penal
\nCode.\n<\/p>\n
 5. The defence of the  respondent  in  his  statement
\nunder Section 313 of Code of Criminal Procedure and from
\nthe  trend of cross-examination of prosecution witnesses
\nis that  of  false  implication  in  the  crime  by  the
\nprosecution.   According  to  the defence, on the day of
\nincident, after taking meal, the respondent went to bed.
\nAt about 11.45 p.m.  his wife had gone in the open  area
\nto answer  the  call of nature.  She saw deceased Ramesh
\nnear her courtyard armed with  a  knife  and  under  the
\ninfluence of  liquor.    The deceased caught hold of her
\nhand.   However,  wife  of  the  respondent  managed  to
\nrelease herself from clutches of deceased and pushed the
\ndeceased,  with  the  result  deceased  fell down on the
\nground.  The deceased thereafter got up  and  went  upto
\n70-80 feet  and fell down near the house of Jago.  It is
\nthe version of the respondent that he went to the  house
\nof   Surendra   due   to   fear  of  the  brother of the
\ndeceased.   He  was  apprehending  that  brother  of the
\ndeceased may assault him  and,  therefore,  he  went  to
\nRamtek.  Hence, the defence of the respondent is that he
\nis falsely implicated in the present crime.\n<\/p>\n
 6. The  prosecution  in  order  to  prove the offence
\nagainst  the   respondent   examined   PW   1   Surendra
\nWadibhasme,  PW  2  Sulochanabai,  PW 3 Ramchandra, PW 4
\nDoma, PW 5 Dr.    Maheshkumar  Chaurasiya,  PW  6  Bhadu
\nPatil,  PW  7  Kanthiram  PW  8  Daulat  and PW 9 Eknath
\nKhadse.   Out  of  these  prosecution  witnesses,  PW  2
\nSulochanabai,  PW  4 Doma and PW 6 Bhadu are examined by
\nthe prosecution as eye witnesses to the incident.\n<\/p>\n
 7. At  the  outset  Shri  Dhote,  learned  Additional
\nPublic  Prosecutor  for  the appellant, states that PW 1
\nSurendra has  not  supported  the  prosecution  and  was
\ndeclared  hostile  to the prosecution and, therefore, so
\nfar as extra judicial confession alleged  to  have  been
\ngiven  by  the  respondent  is concerned, it would be of
\nlittle help  to  the  prosecution.    However,   it   is
\nvehemently  argued  that  the evidence of eye witnesses,
\nnamely, PW 2 Sulochana, PW 4 Domu  and  PW  6  Bhadu  is
\nconsistent   with   the   material  particulars  of  the
\nprosecution  case  and  proves  the  offence  of  murder
\nagainst the  respondent.   It is contended that evidence
\nof these witnesses is also corroborated by  the  medical
\nevidence  and,  therefore, finding of acquittal recorded
\nby the trial Court is bad in law.\n<\/p>\n
 8. Shri  Dhote further states that PW 2 Sulochana has
\nstated that at the relevant time, she was present in her
\nhouse and witnessed the incident from her house.  It  is
\nsubmitted  that in her evidence, she has deposed that at
\nabout 9.30 p.m.to 9.45 p.m.  the respondent was  present
\nin  front  of  his  grocery shop and deceased Ramesh was
\nsitting on the platform of the flag post.    There  were
\ntubelights  on  the street and she has seen the incident
\nin the light of the tube.  Her house is about 40-50 feet
\nfrom the place of incident.    According  to  her,  pole
\nhaving  tube  was  near  the  shop of the respondent and
\nanother pole having tube was near the temple of  Maroti.
\nThe  temple  of  Maroti  is at the distance of about 240
\nfeet from the flag post.  This witness has deposed  that
\nrespondent  was talking to deceased Ramesh from the shop
\nand there was exchange of words going on  between  them.
\nHowever, she was not aware the reason for their quarrel.
\nThe respondent  provoked  the deceased.  Deceased Ramesh
\nwent  towards  the  shop  of  the  respondent  and   the
\nrespondent also  came forward to the flag post.  Both of
\nthem met in front of the house of Harichand.  As soon as
\nthe respondent came  near  the  deceased,  the  deceased
\nraised shouts as “Melore Bapa, Melore Bapa” and kept his
\nhands on  his  chest  and  returned  back.  The deceased
\nwalked about 20 feet and thereafter  fell  down  on  the
\nground.   The other people, who were sitting at the flag
\nhost, were at the distance of about  60  feet  from  the
\nplace  where  the  respondent and deceased met with each
\nother and incident had taken place.  It is also  deposed
\nby  this  witness that PW 4 Doma and Raghoba came there.
\nThis witness  had  seen  injury  on  the  chest  of  the
\ndeceased.  According to this witness, after the assault,
\nthe respondent  was  standing  there.    PW 3 Ramchandra
\ncaught hold of hand of the respondent and brother of the
\ndeceased rushed to assault the respondent.    Thereafter
\nrespondent fled  away  from the place.  This witness has
\nfurther  stated   in   her   examination-in-chief   that
\nrespondent assaulted deceased, but she could not see the
\nweapon   with   which  deceased  was  assaulted  by  the
\nrespondent.\n<\/p>\n
 9. It  is contended by Shri Dhote, learned Additional
\nPublic Prosecutor for the appellant, that  testimony  of
\nPW  2  Sulochana  is not shaken in the cross-examination
\nand so called omissions and  contradictions  brought  in
\nher  evidence  by the defence are not material in nature
\nand  do  not  affect  the  testimony  of  this   witness
\nadversely.\n<\/p>\n
 10. It is further contended by the learned  Additional
\nPublic Prosecutor that PW 4 Doma, another eye witness to
\nthe  incident,  has  also  given  similar version in his
\nexamination-in-chief and corroborated the  testimony  of
\nPW 2  Sulochana.    It  is  submitted that PW 4 Doma has
\ndeposed that the respondent was  near  the  pole  having
\ntube and  deceased went towards him.  They met near that
\npole.  There was some talk between them.  Respondent all
\nof a sudden gave a blow of large knife on the  chest  of
\nthe deceased.    This  witness  saw  the incident in the
\nlight of the tube.   This  witness  and  Raghoba  rushed
\ntowards deceased.  The respondent left the spot and fled
\naway  from  the spot immediately after the incident with
\nthe knife after the deceased fell down on the ground.\n<\/p>\n
 11. The  learned  Additional Public Prosecutor further
\nsubmits that PW 4 Doma has given a detailed  description
\nabout  the  knife  used by the respondent at the time of
\nincident.  This witness has deposed  that  knife  had  a
\nhole and  thread  was  tied  on it.  It was about 9 inch
\nlong including a handle.  It had a handle of iron.    It
\nis  contended  that  in  the  cross-examination  of this
\nwitness, nothing worthwhile has come to affect testimony
\nof this witness adversely.\n<\/p>\n
 12. It is contended by the learned  Additional  Public
\nProsecution  that  similarly  evidence  of PW 6 Bhadu is
\nconsistent with the evidence of other eye witnesses.  He
\nhas also stated that at the  relevant  time,  respondent
\nwas having a knife and he assaulted deceased by means of
\na knife.    The  deceased  immediately  fell down on the
\nground and respondent fled away from the spot  with  the
\nknife.  It is contended that evidence of this witness is
\nalso not shaken in the cross-examination and, therefore,
\nis acceptable  and  can be relied upon.  It is submitted
\nby  the  learned  Additional  Public   Prosecutor   that
\nevidence  of  the  above referred eye witnesses ought to
\nhave been accepted by the trial Court.\n<\/p>\n
 13. Shri Dhote further submits that evidence of  PW  5
\nDr.   Maheshkumar  Chourasiya  supports  the prosecution
\ncase.  Dr.    Maheshkumar  has  conducted  post   mortem
\nexamination  on  the  dead  body of Ramesh and found the
\nfollowing external injury on the dead body : <\/p>\n
  “stab  wound 1 1\/2″ x 1\/2″ penetrating the
\nthroat completely on  the  chest  of  left
\nside  near  the  nipple and 2″ away to the
\nleft side from the  mid-line  in  the  5th
\nintercoastal space.     Injury  was  fresh
\ncaused by sharp and pointed object.    The
\ninjury was ante mortem.”\n<\/p>\n
 14. It is further contended by the learned  Additional
\nPublic  Prosecutor  that oral report of the incident was
\nlodged by PW 8 Daulat Bawankule, father of the deceased,
\nwhich was scribed by  Tarachand,  Police  Patil  in  the
\npresence of PW 7 Kanthiram.  It is contended that report
\nwas  scribed  on  the  basis of information disclosed to
\nthese persons by PW 4 Doma and Raghoba.  It is submitted
\nthat in the said oral report (Exh.  61) it is  mentioned
\nthat  the respondent dealt a blow by knife on the person
\nof deceased and after the assault, respondent fled  away
\nfrom the  spot.    It  is, therefore, contended that the
\nfirst information report also corroborates  the  version
\nof the prosecution.  It is also contended that discovery
\nof  weapon  by  the  respondent  having blood stains and
\nseizure of clothes of the respondent having blood of O
\nGroup are the other circumstances, which corroborate the
\ncase of the prosecution.  It  is,  therefore,  contended
\nthat  the  finding  of  acquittal  recorded by the trial
\nCourt is not sustainable in law.\n<\/p>\n
 15. Shri Gupta, learned Counsel  for  the  respondent,
\nsupports  the finding of acquittal recorded by the trial
\nCourt and states that the respondent  has  been  falsely
\nimplicated in  the  crime  by  the  prosecution.   It is
\nsubmitted that evidence adduced by  the  prosecution  of
\neye  witnesses  is not only contradictory to each other,
\nbut same is unreliable and, therefore, cannot be  relied
\nupon.   It is contended that the oral report was scribed
\nby Police Patil on the basis of  information  about  the
\nincident  disclosed  by  PW  4  Doma  and lodged by PW 8
\nDaulat.  It is contended that from the oral report (Exh.\n<\/p>\n
51) it is clear that PW 4 Doma was not present when  the
\nincident had taken  place.    The oral report (Exh.  51)
\nreveals  that  PW  4  Doma  and  Raghoba  had  seen  the
\nrespondent  running  away  with the knife from the spot.
\nThere is no mention in the report (Exh.  51)  that  Doma
\nor Raghoba  had  seen the incident.  The prosecution has
\nnot examined  Raghoba.    It  is  contended  that  these
\nrecitals in  the  oral report (Exh.  51) totally falsify
\nthe claim of PW 4 Doma about his presence at  the  scene
\nof  offence  at the time of assault and, therefore, PW 4
\nDoma is not the person, who  had  witnessed  the  actual
\nassault.  Therefore,  oral  report (Exh.  51) as well as
\nevidence of PW 4 Doma create grave suspicion in  respect
\nof incident of assault and cannot be relied upon.\n<\/p>\n
 16. It is further contended by the learned Counsel for
\nthe respondent that evidence of PW 2 Sulochana  is  also
\nunreliable   and   the  trial  Court  was  justified  in
\nrejecting her testimony.   It  is  submitted  that  this
\nwitness,  even  otherwise,  could  not see the weapon by
\nwhich alleged blow was given by the author of the injury
\nbecause of insufficient light.  It is contended that the
\npole having  tube,  which  was  near  the  shop  of  the
\nrespondent  as  well as near the house of PW 2 Sulochana
\nwas about 60 feet away from the spot  of  incident  and,
\ntherefore,  it  was  not possible for her to witness the
\nincident and,  therefore,  this  witness  has  correctly
\nstated in her evidence that she could not see the weapon
\nof assault.    It is specifically stated by this witness
\nin her evidence that before actual  assault,  there  was
\nexchange  of  hot  words between respondent and deceased
\nfor sometime and it is only  thereafter  actual  assault
\nhad taken  place.    It  is  further  deposed that after
\ninjury was  received  by  the  deceased  on  his  chest,
\ndeceased  walked  about  20  feet  and  then  collapsed.
\nSimilarly, according to  this  witness,  respondent  has
\nremained  on  the  spot  after  assault  and  when  PW 3
\nRamchandra tried to catch hold of him, he ran away  from
\nthe spot.    It  is contended by the learned Counsel for
\nthe respondent that all these facts are  not  stated  by
\nthe  other  eye  witnesses and the evidence of other eye
\nwitnesses does not support the version of PW 2 Sulochana
\nin this regard.  It is contended that apart  from  this,
\nthere  are  material  omissions  in the evidence of this
\nwitness, which affect her ocular testimony and the trial
\nCourt was justified in rejecting the  evidence  of  this
\nwitness.\n<\/p>\n
 17. Learned  Counsel  Shri Gupta states that as far as
\nevidence of PW 4 Doma, the other eye witness examined by
\nthe prosecution is concerned, his very presence  at  the
\ntime  of  assault is doubtful in view of recitals in the
\nfirst information  report  wherein  it  is  specifically
\nstated  that  PW  4  Doma  has  only seen the respondent
\nrunning away from  the  spot  with  a  knife.    It  is,
\ntherefore,  contended  that  evidence of this witness is
\nnot reliable and cannot be relied upon.  Similarly, this
\nwitness has given altogether a  different  version  than
\nthat of  PW  2  Sulochana.    PW 4 Doma has deposed that
\nrespondent all of a sudden gave a blow by a large  knife
\non  the  chest  of deceased and the deceased immediately
\nfell down on the ground.  This witness has  not  deposed
\nthat  respondent  and  deceased  were abusing each other
\nbefore  the  actual  incident  of  assault  as  well  as
\ndeceased walked  about 20 feet after the assault.  It is
\ncontended that this witness is alleged to have seen  the
\nassault from quite distance and even then he has given a
\ndetailed  description  of  the  knife in minute details,
\nwhich shows enthusiasm and eagerness of this witness  to
\nimplicate the  respondent  falsely  in the crime.  It is
\ncontended  that  contradictions  and  omissions  finding
\nplace  in  the  evidence of this witness are of material
\nnature and create a serious doubt about authenticity  of
\nevidence of this witness.\n<\/p>\n
 18. Shri Gupta, learned Counsel  for  the  respondent,
\nstates  that  as  far  as  evidence  of  PW  6  Bhadu is
\nconcerned, same is also not consistent with the evidence
\nof PW 2 Sulochana.  It is contended that as per evidence
\nof this witness, after respondent gave  a  blow  on  the
\nchest  of  deceased,  deceased  fell down and respondent
\nfled away from the spot with a knife in his hand.    The
\nlearned  Counsel  submits that this fact is inconsistent
\nwith the version of PW 2 Sulochana.    Similarly,  there
\nare  innumerable  omissions  of  material  nature in the
\ntestimony of this witness,  which  affect  his  evidence
\nadversely  and,  therefore,  trial Court is justified in
\nrejecting the same.\n<\/p>\n
 19. It is submitted by the  learned  Counsel  for  the
\nrespondent that even as per prosecution case, there were
\nonly two poles on which tubes were burning.  One is near
\nthe  shop  of  the  respondent  as well as house of PW 2
\nSulochana, which is at the distance  of  about  60  feet
\nfrom  the spot and the other pole was in front of Maroti
\ntemple, which is about 240 feet away from the spot.   It
\nis  contended  that  because  of  distance between these
\npoles and spot, the light at the relevant time near  the
\nspot   was  insufficient  and,  therefore,  it  was  not
\npossible for the witnesses to  identify  author  of  the
\ncrime.  It is submitted that this fact to some extent is
\nsupported  by  the  evidence  of PW 2 Sulochana, who has
\nadmitted that because of darkness, she could not see the
\nweapon alleged to have been used by the  author  of  the
\ncrime  and,  therefore, evidence of this witness creates
\ndoubt about actual assault.\n<\/p>\n
 20. It is further contended by the learned Counsel for
\nthe respondent that  evidence  of  eye  witnesses  being
\ninconsistent with each other, has rightly been discarded
\nby the  trial  Court.  It is submitted that discovery of
\nknife from the respondent has rightly been  rejected  by
\nthe  trial  Court in view of the fact that memorandum of
\nseizure was written after knife was  produced.    It  is
\nfurther  submitted  that  since  evidence of prosecution
\nwitnesses is doubtful, the medical evidence on  its  own
\nis  not sufficient to hold the respondent guilty for the
\noffence under Section 302  of  Indian  Penal  Code  and,
\ntherefore,  trial  Court  is justified in acquitting the
\nrespondent.\n<\/p>\n
 21. It is vehemently argued by the learned Counsel for
\nthe respondent that this is an appeal against  acquittal
\nand,  therefore, unless finding of acquittal recorded by
\nthe trial Court is totally perverse and unsustainable in
\nlaw, this Court normally does  not  interfere.    It  is
\nsubmitted  that in view of inconsistent evidence adduced
\nby the prosecution, doubt is created in the mind of  the
\nCourt about its truthfulness and, therefore, trial Court
\nis justified in acquitting the respondent and finding of
\nacquittal is sustainable in law.\n<\/p>\n
 22. We  have  given our anxious thought to the various
\ncontentions canvassed by the respective learned  Counsel
\nfor the parties and also perused the evidence on record.
\nIn  the instant case, though prosecution has examined as
\nmany as nine prosecution  witnesses,  however,  material
\nevidence  is  of  PW  2 Sulochana, PW 3 Ramchandra, PW 4
\nDomu and PW 6 Bhadu.  These are the eye witnesses to the
\nincident in question.   Since  PW  1  Surendra  has  not
\nsupported  the  prosecution  case  in  respect  of extra
\njudicial confession alleged to have  been  made  by  the
\nrespondent,  the  same is of no help to the prosecution.
\nIn order to ascertain whether prosecution has  succeeded
\nor   not   in  proving  the  charge  of  murder  against
\nrespondent, it will be proper for us to  scrutinise  the
\noral report  (Exh.  51) lodged by PW 8 Daulat as well as
\nevidence of eye witnesses.\n<\/p>\n
 23. The report (Exh.51)  though  is  lodged  by  PW  8
\nDaulat,  same  is  scribed  by  the  Police Patil of the
\nvillage, who is not examined by the prosecution, in  the
\npresence  of  Sarpanch  of  the village – PW 7 Kanthiram
\nDeshmukh.  The evidence of PW 7 Kanthiram  reveals  that
\nincident had  taken place on 6.12.1985.  At the relevant
\ntime, he was working as Sarpanch of  the  village.    At
\nabout 9  p.m.-10  p.m.   PW 8 Daulat and PW 3 Ramchandra
\ncame to his house and asked him to accompany them.  This
\nwitness went with them to the spot and  saw  Ramesh  was
\nlying dead having injury on his chest.  This witness has
\nstated  that  PW  8  Daulat dictated a report and it was
\nscribed by Tarachand, Police Patil.  PW 8 Daulat put his
\nthumb impression.   In  the  cross-examination  of  this
\nwitness,  he  has admitted that this witness, Tarachand,
\nRamchandra and Daulat were present when the  report  was
\nscribed.   In  the presence of this witness, PW 8 Daulat
\nenquired from Raghoba, PW 4 Doma and PW 2  Sulochana  in
\nrespect of incident in question.  Then all these persons
\nwent  to  the  office  of  Gram Panchayat and report was
\nscribed as dictated by Daulat  in  the  Gram  Panchayat.
\nFrom  the  evidence  of  this  witness, it is clear that
\ninformation about incident of assault was  disclosed  to
\nPW 8 Daulat by Raghoba, PW 4 Doma and PW 2 Sulochana and
\non  the  basis of such information, PW 8 Daulat dictated
\nthe oral report, which was scribed by the  Police  Patil
\nand lodged  in the Police Station, which is at Exh.  51.
\nThe evidence of PW 8 Daulat shows that  he  reached  the
\nspot  of  incident  when Sulochanabai, Doma, Raghoba and
\nother persons were already present there and  he  learnt
\non  the  spot  that respondent assaulted deceased Ramesh
\nwith a large knife.  The respondent was not  present  on
\nthe spot  when  this  witness  reached  the  spot.  This
\nwitness has deposed that the report was  scribed  either
\nby Sarpanch  or Police Patil.  From the evidence of this
\nwitness, it is clear that he was not present at the time
\nof incident and he reached the spot only after  incident
\nwas over and witnesses Sulochana, Doma and other persons
\nhad already gathered near the spot of incident.\n<\/p>\n
 24. In view of the evidence of PW 7 Kanthiram and PW 8
\nDaulat,  it  can safely be inferred that the information
\nabout the incident was disclosed to PW 8 Daulat by PW  4
\nDoma, Raghoba and PW 2 Sulochana and on the basis of the
\nsaid information, PW 8 Daulat dictated the report, which
\nwas scribed  by  the  Police Patil.  The recitals in the
\nreport (Exh.  51) reveal that two persons,  i.e.    Doma
\ns\/o  Hagru  Ghavade  and  Raghoba s\/o Hagru Bawankar had
\nseen the respondent when he was running  away  from  the
\nspot with a  knife.    This sentence in Exh.  51 is very
\npertinent and speaks volumes about presence of PW 4 Doma
\nat the time of  assault.    In  view  of  this  specific
\nsentence in  the  oral report (Exh.  51), which is first
\nin point of time lodged by PW 8 Daulat, it is clear that
\nPW 4 Doma came on the scene of offence at the time  when
\nrespondent  was  running away from the spot with a knife
\nand, therefore, it falsifies the claim of PW 4 Doma that
\nhe was present on the spot at the time  of  assault  and
\nwitnessed the  incident of assault.  If PW 4 Doma is the
\nperson, who had given the information about the incident
\nto PW 8 Daulat  and  if  he  really  had  witnessed  the
\nincident,  he  would not have forgotten to disclose this
\nfact to PW 8 Daulat and PW 8 Daulat also would not  have
\nfailed to  mention this aspect in the report (Exh.  51).
\nOn the other hand, the recitals in  Exh.    51  indicate
\nthat  PW  4  Doma reached the spot of incident after the
\nassault and at the time when respondent was running away
\nfrom the spot with the knife.  On the backdrop of  these
\nvital  facts,  a doubt is created about truthfulness not
\nonly in respect of recitals in the report  (Exh.    51),
\nbut  also  the  claim of PW 4 Doma that he had witnessed
\nthe incident of assault.  This aspect  demonstrates  the
\nanxiety  of prosecution to involve the respondent in the
\ncrime in question.\n<\/p>\n
 25. PW 2 Sulochana is alleged to  have  witnessed  the
\nincident from her house, which is admittedly about 60-70
\nfeet away  from  the  spot  of  incident.   It is not in
\ndispute that at the relevant time there were  two  poles
\non which  electric  light  was burning.  One is near the
\nshop   of   the   respondent   at  the     distance   of
\nabout 60 feet from the spot and other in front of Maroti
\ntemple, which was about 240 feet away from the  spot  of
\nincident.  It has come in the evidence of PW 2 Sulochana
\nthat  because  of darkness, she could not see the weapon
\nof assault alleged to have been used by the  respondent.
\nIt  is  pertinent  to  note  that  PW 2 Sulochana in her
\nocular testimony has specifically stated that there  was
\nexchange  of  hot  words and some altercations had taken
\nplace between  deceased  and  respondent  before  actual
\nincident of assault and after the blow of knife given by
\nthe  respondent,  deceased walked about 20 feet and then
\nfell down.  Similarly, respondent was  standing  on  the
\nspot after   incident  of  assault.    PW  3  Ramchandra
\nthereafter  tried  to  apprehend  the  respondent   and,
\ntherefore,  respondent  fled away from the spot with the
\nknife.  This version of PW 2 Sulochana is not  supported
\nby other  eye  witnesses.    The fact is that because of
\ninsufficient light,  this  witness  could  not  see  the
\nweapon.   In a situation like this, it is very difficult
\nfor us to believe that she could have seen  the  attempt
\nalleged  to  have been made by the respondent for giving
\nsuch a blow.  The  evidence  of  this  witness  to  some
\nextent establishes the fact that light near the spot was
\ninsufficient.   The  inconsistent  version given by this
\nwitness as well as omissions, which are finding place in
\nher evidence create a serious doubt  about  truthfulness
\nof ocular testimony of this witness and the trial Court,
\nin  our  view,  was justified in not placing reliance on
\nthe testimony of this witness.\n<\/p>\n
 26. So  far  as evidence of PW 4 Doma is concerned, we
\nhave already observed that in view of  recitals  in  the
\nreport (Exh.   51), presence of this witness at the time
\nof assault is highly doubtful and  if  the  evidence  of
\nthis  witness  is  evaluated  on  the  backdrop of above
\nfacts, we feel that it is  also  inconsistent  with  the
\nversion of PW 2 Sulochana.  This witness has not deposed
\nthat  deceased after the incident of assault walked some
\ndistance and  then  fell  down.    On  the  other  hand,
\naccording  to this witness, respondent left the spot and
\nfled away from the spot immediately after  the  incident
\nwith the  knife.    Both  these aspects are inconsistent
\nwith the evidence of PW 2  Sulochana.    Similarly,  the
\ndetailed  description  of  knife  given  by this witness
\nclearly shows his anxiety to implicate  the  respondent.
\nAt  the time of incident, it was dark and light also was
\ninsufficient at the spot of incident and this witness is
\nalleged to have seen the incident  from  some  distance.
\nIn  a  situation  like  this,  it is difficult for us to
\nappreciate as to how this witness  could  see  even  the
\nsmall hole  on  the knife as well as thread.  As we have
\nalready observed hereinabove, presence of  this  witness
\nitself  is  doubtful  in  view of recitals in the report
\n(Exh.  51).  The  inconsistent  version  given  by  this
\nwitness  in  his  evidence  as  well  as  omissions  and
\ncontradictions appearing in his evidence create  serious
\ndoubt about authenticity of the ocular testimony of this
\nwitness  and the trial Court, in our view, was justified
\nin rejecting the evidence of this witness.\n<\/p>\n
 27. So far as PW 6 Bhadu Patil is concerned, there are
\nomissions in his evidence, which have direct bearing  on
\nhis testimony.    This  witness  claimed  to have stated
\nbefore the Police that PW 4 Doma, Raghoba and Jago  were
\npresent at  the flag post.  However, he could not assign
\nany reason why  this  fact  was  not  mentioned  in  his
\nstatement.   It  is  pertinent to note that this witness
\nhas   for   the   first   time   introduced    in    his
\nexamination-in-chief  that  witnesses  Doma, Raghoba and
\nJago were present with him on the platform.  However, he
\nomitted to mention this  in  his  statement  before  the
\nPolice,  which,  in  our opinion, is a material omission
\nand creates doubt either about presence of this  witness
\non the  spot  or  other  eye  witness  PW  4 Doma.  This
\nwitness  in  his  examination-in-chief  has   introduced
\naltogether different  prosecution  case.    According to
\nthis witness, quarrel between  respondent  and  deceased
\nhad  taken  place  because  of  some  dispute  regarding
\ndistribution of water of canal.  This aspect is  totally
\ninconsistent  with  the  version  given by other two eye
\nwitnesses in this regard.  Even otherwise, there  is  an
\nomission  in  this regard in the Police Statement which,
\nin our view, is material in the facts and  circumstances
\nof  the  present  case and creates a serious doubt about
\nhis ocular testimony in respect of incident of  assault.
\nThere  are  quite  a few other omissions in his evidence
\nwhich, in our considered  view,  affect  credibility  of
\ntestimony of this witness.\n<\/p>\n
 28. In  the  instant  case,  evidence of so called eye
\nwitnesses is not only inconsistent with each other,  but
\nthe same is also not free from doubt and further creates
\nserious   doubt   about  authenticity  of  their  ocular
\ntestimonies and  the  trial  Court,  in  our  view,  was
\njustified  in  not  placing  reliance on the evidence of
\nthese witnesses.  The discovery made by  the  respondent
\nunder  Section  27 of the Evidence Act cannot be said to
\nbe a discovery  in  law  since  memorandum  as  well  as
\nseizure  memo  were  written after knife was produced by
\nthe respondent and, therefore, procedure adopted by  the
\nInvestigating Officer is inconsistent with the procedure
\ncontemplated  under  Section 27 of the Evidence Act and,
\ntherefore, same also, in our view, does not support  the
\ncase of the prosecution.\n<\/p>\n
 29. It is no doubt true that Medical Officer PW 5 Dr.
\nMaheshkumar Chourasiya conducted post mortem examination
\non  the  dead  body  of  Ramesh  and  noticed  the above
\nreferred injury on the person of the deceased.  However,
\nit must be born in  mind  that  medical  evidence  is  a
\ncorroborative   piece  of  evidence  in  order  to  lend
\ncorroboration to the material particulars  disclosed  by
\nthe  prosecution witnesses in order to prove the offence
\ncharged against the accused and that by itself does  not
\nfurther the case of the prosecution and, therefore, only
\non   this   piece  of  evidence,  conviction  cannot  be
\nrecorded.  Similarly, we cannot turn the nelsons eye to
\nthe fact that this is an appeal against acquittal and it
\nis well settled that in an appeal against acquittal,  on
\nre-consideration  of  evidence  of  prosecution, even if
\nview other than the view taken by  the  trial  Court  is
\npossible,  the  view  which  is in favour of the accused
\nshould be taken.  Similarly, this Court should  be  slow
\nin  interfering with the finding of acquittal unless the
\nfinding of acquittal is totally perverse and de hors  of
\nthe evidence  adduced  by the prosecution.  Keeping this
\nlegal position in mind coupled with the  above  referred
\nevidence  of  prosecution,  in  our  considered view, no
\ninterference is called for.  The appeal  is,  therefore,
\ndismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court State Of Maharashtra, Through The … vs Chandrabhan S\/O Mahagu Bawankule on 4 December, 2002 Equivalent citations: 2003 BomCR Cri Author: D Sinha Bench: D Sinha, S Kharche JUDGMENT D.D. Sinha, J. 1. Heard Shri Dhote, learned Additional Public Prosecutor for the appellant, and Shri Gupta, learned Counsel for the respondent. 2. […]<\/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-244252","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nState Of Maharashtra, Through The ... vs Chandrabhan S\/O Mahagu Bawankule on 4 December, 2002 - 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\/state-of-maharashtra-through-the-vs-chandrabhan-so-mahagu-bawankule-on-4-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Maharashtra, Through The ... vs Chandrabhan S\/O Mahagu Bawankule on 4 December, 2002 - 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