The State vs. D.B.Pawar and Ors. Vs Dattatraya Bapu Pawar and Others.

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vss

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.543 OF 1990

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 The State of Maharashtra ... Appellant

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 V/s.

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 1. Dattatraya Bapu Pawar & 2 Ors. ... Respondents

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 Mr.P.S. Hingorani, APP, for Appellant
 Ms.Ameeta Kuttikrishnan for Respondents

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 CORAM: D.G. DESHPANDE &

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SMT.NISHITA MHATRE,JJ.

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 DATED: JUNE 7, 2007

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ORAL JUDGMENT (PER SMT.MHATRE, J.):

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 . The State has filed the present appeal against
 the judgment and order of the Sessions Judge, Pune
 acquitting the accused of the offences punishable under
 sections 302, 307 and 504 r/w 34 of the Indian Penal
 Code.

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 2. The case of the prosecution is that one Namdeo

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 was working in Dubai and used to arrange jobs for the
 villagers of Wagholi village as and when it was
 possible. Accused No.1 requested him to secure a job
 for him in Dubai when Namdeo had returned to the village
 for a holiday. Several others in the village had also
 sought an assurance from Namdeo that he would arrange
 for jobs for them. It appears that Namdeo left for
 Dubai after assuring some of the villagers that he would
 make an attempt to secure jobs for them in Dubai.

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 : 2 :

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 According to the prosecution, on 2.10.1988, Namdeo’s
 brothers Ramdas and Damu left their house on a motor
 cycle for distributing milk. As they were alerted by
 their nephew Milind that the accused were waiting to
 assault them on the road, Ramdas carried a wooden stick
 with him. The accused made them stop the motor cycle
 after which they dismounted the motor cycle. Accused
 No.1 had a grievance that their brother Namdeo had not
 managed to secure a job for him in Dubai and started
 abusing him. The prosecution alleges that the
 complainant i.e., Ramdas suggested that all of them go
 to the Police Patil and settle the dispute. When they
 reached near the house of the Police Patil, accused No.1
 inflicted a blow with a knife on Damu’s chest. Ramdas
 who was carrying a stick in his hand hit accused No.1
 with it on the head. Accused Nos.3 and 4 caught hold of
 Damu and assaulted him with a knife. They dragged him
 to a spot near a lake and murdered him in a ditch
 nearby. Damu shouted for help for a while. Once his
 cries stopped, Accused Nos.1 and 2 assaulted the
 complainant Ramdas. A milkman Shankar Raut who reached
 the spot intervened and separated them. The prosecution
 also alleges that another brother of Ramdas, Dnyanoba
 came to the spot and also tried to stop the quarrel upon
 which he was assaulted. The Police Patil and his wife
 rushed to the spot on hearing Ramdas’s cries. The
 Police Patil informed the police station at Loni of the
 incident and that Damu had died on the spot while Ramdas

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 : 3 :

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 had been admitted to Sassoon Hospital. The accused were
 arrested and tried by the Sessions Court, Pune for
 commission of the aforesaid offences. The trial
 resulted in their acquittal.

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 3. The learned Assistant Public Prosecutor has
 submitted that the learned Sessions Judge has committed
 an illegality by not accepting the evidence of the
 complainant who has been examined as PW1 only on the
 ground that no independent witness was examined by the
 prosecution to prove its case. He submits that PW1 was
 also assaulted and was an eye witness to the incident
 and as such his testimony ought to have been accepted by
 the trial Court. The learned APP further pointed out
 that a blood stained knife has been discovered at the
 instance of accused No.1. However, this discovery has
 been discarded by the learned Sessions Judge on the
 ground that it was found in an open field. He contends
 that the injuries suffered both by the deceased Damu as
 well as the complainant Ramdas were severe and,
 therefore, the accused ought to have been convicted
 under sections 302, 307 and 504 r/w 34 of the IPC.

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 4. We have with the assistance of the learned APP
 and the learned Advocate appearing for the accused
 perused the judgment impugned in this appeal as also the
 evidence on record. We find that the view taken by the
 learned Sessions Judge is a possible view and there is

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 : 4 :

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 no perversity in the findings arrived at by the trial
 Court.

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 5. The trial Court has rightly held that the
 prosecution ought to have examined other witnesses
 besides the complainant to prove the incident. The
 complainant has mentioned that one Shankar Raut had
 intervened in the quarrel between himself and the
 accused while he was being assaulted. This Shankar Raut
 has been named in the FIR. However, he has not been
 examined by the prosecution for reasons best known to
 it. Shankar Raut was an independent witness to the
 incident and his testimony would have some bearing on
 this case and would have thrown light on the exact
 nature of the incident. The reasons given by the
 learned Sessions Judge for discarding the testimony of
 the sole eye witness who was the complainant cannot be
 called perverse. The complainant has stated that after
 he was assaulted with a knife on his thigh, he left the
 milk cans by the side of the road, started his motor
 cycle and left for Sassoon hospital for treatment. This
 version seems highly impossible as it would have been
 difficult for PW1 to ride a motor cycle with a gash on
 his thigh. PW1 has also mentioned that Dnyanoba, his
 brother was present when the incident occurred and was

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 injured when he tried to intervene. If that was so,
 Ramdas would certainly have taken Dnyanoba alongwith him
 to the hospital. There is no reason why he was not

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 : 5 :

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 examined by the prosecution if in fact Dnyanoba was
 present.

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 6. During the cross-examination, PW1 has admitted
 that after he was injured, he rode his motor cycle for a
 distance of about 4 kms to Loni Kand outpost. He
 reported the incident to head constable Deshmane who
 recorded the same in the register. Accused No.1 also
 went to the outpost a little later. The head constable
 then took both of them to Sassoon hospital for
 treatment. Significantly, the head constable was not
 examined by the prosecution. Nor was the noting made by
 him in the register produced and exhibited before the
 trial Court. This noting was in fact the first
 information given to the police about the incident by
 the complainant and ought to have been treated as the
 First Information Report. The complaint which is at
 exhibit 27 cannot be considered as the FIR. There is no
 explanation at all by the prosecution why this material
 statement, given by the complainant Ramdas to the head
 constable at the Loni Kand outpost has not been
 produced.

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 7. The knife which allegedly was recovered at the
 instance of the accused No.1 was found in an open place
 where anybody could have access. The knife was blood
 stained and, therefore, sent for analysis to the
 Chemical Analyser. It was found that the blood stains

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 : 6 :

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 on it belonged to the ‘AB’ group. The analysis of the
 blood groups of the deceased and accused No.1 indicates
 that both had the same blood group ‘AB’ while the
 complainant had blood group ‘O’. Thus, the knife could
 not have been used to assault the complainant. Whether
 the blood on the knife was of accused No.1 or the
 deceased has also not been proved conclusively. In such
 circumstances, we agree with the findings reached by the
 Sessions Judge.

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 8. The Sessions Court has marshalled the evidence
 well and has drawn correct inferences. We agree with

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 the inferences drawn by him and dismiss the appeal.

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 9. Appeal dismissed.

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 (D.G. DESHPANDE, J.)

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 (SMT.NISHITA MHATRE, J.)

The State v. D.B.Pawar and Ors. v Dattatraya Bapu Pawar and Others.

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The State v. D.B.Pawar and Ors. v Dattatraya Bapu Pawar and Others.

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