Criminal Appeal against acquittal of accused for murder. High Court held prosecution failed to prove death was homicidal. Acquired evidence insufficient. Appeal dismissed.
Criminal Appeal dismissed; Bail bonds of the respondents stand cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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criapl425.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO.425 OF 2001
The State of Maharashtra .. Appellant Versus1. Sandipan Dadarao Sable, .. Respondents Age-52 years,2. Satyawan Dadarao Sable, Age-40 years,3. Rajendra Sandipoan Sable, Age-20 years,4. Devidas Dadarao Sable, Age-30 years, All R/o. Sawargaon, Tq. Tuljapur, Dist. OsmanabadMr.S.D.Ghayal, APP for the respondent/State
Mr.S.S.Choudhary, Advocate for the respondent Nos. 1 to 4
CORAM :T.V.NALAWADE &
S.M. GAVHANE, JJ.
DATED:15.09.2017
J U D G M E N T [PER: S.M. GAVHANE, J.]
.This appeal is directed against acquittal of the
respondents accused Nos. 1 to 4 of the offence punishable
under Section 302 read with Section 34 of the Indian
Penal Code (for short the IPC) by the judgment and order
dated 02.08.2001 in Sessions Case No.105/1995 passed by
Additional Sessions Judge, Osmanabad.
2.Facts of the prosecution case, are thus;
A.One Shahaji Gaikwad (PW-2) the informant, Mithu
Gaikwad (deceased), Kerba, Jalindar, Baima and Tanubai
are residents of village Dahewadi, Tq. Tuljapur, Dist.
Osmanabad. These persons had gone to Sawargaon, village
of the accused for performing the program of singing
religious songs and they had performed that program at
the house of Prakash Ranghnath Dolare and halted in the
village. On the next day morning i.e. on 12.11.1994 all
of them were to return to their village but they were
invited by Kondiba Sable of village Sawargaon for
performing the program at his house and therefore, they
stayed in village Sawargaon.
B.On 12.11.1994 at about 05.00 pm Shahaji Gaikwad
(PW-2), Mithu (deceased) and Jalindar went in the Jawar
crop standing in the land of one Shepahard of village
Kemwadi for latrine and sat for latrine. The said land
was being cultivated by Sandipan Sable-accused No.1 on
Batai basis. Accused No.1-Sandipan Sable came shouting in
the said land towards above mentioned persons and on
hearing the shouts Jalindar got up, but accused No.1-
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Sandipan Sable did not say anything to Jalindar (PW-3),
but pelted stone towards Mithu the deceased and that
stone hit Mithu on his back and deceased Mithu started
running towards Government Hospital. Accused No.1-
Sandipan Sable started chasing the deceased and accused
No.1 pelted five or six stones which hit Mithu the
deceased on his back. When the deceased was running
towards the Hospital three other persons namely Rajendra,
Satyawan and Devidas other accused also joined accused
No.1-Sandipan Sable and started chasing Mithu the
deceased and all of them pelted stones towards Mithu and
hit him on his private part. As a result of such beating
Mithu fell down near the hospital. One Gajendra Dolare
(PW-10) lifted him and took him in front of the hospital
and Mithu died in front of hospital. Shahaji Gaikwad (PW-
2) informant went to Tamalwadi Police Station on
13.11.1994 and narrated the incident. His statement was
accordingly recorded at about 02.00 pm and on treating
the said statement as FIR Crime No.85/1994 came to be
registered in said Police Station for the offence
punishable under Section 302 of the IPC against the
accused and the investigation was started.
C.During the investigation the Investigating
Officer PSI Shingare (PW-8) prepared inquest panchanama.
Postmortem examination was conducted by the Medical
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Officer Dr. Vilas Alure (PW-1) in Rural Hospital,
Tuljapur and he issued postmortem report (Exh.26). He
opined that probable cause of death is, due to cardio
respiratory arrest secondary to vasculatory collapse
(profused bleeding, from injury to spleen and kidneys)
hemorrhagic shock. The Investigating Officer prepared
panchanama of spot of incident and recorded statements of
witnesses including those who have seen accused No.1 in
Jawar crop. It was transpired during investigation that
the deceased was having illicit relation with wife of
accused No.1
D.After completion of the investigation the
Investigating Officer submitted the charge-sheet in the
Court of JMFC, Tuljapur, who then committed the case to
the Sessions Court, Osmanabad as the offence under
Section 302 of the IPC was exclusively triable by the
Sessions Court and case came to be allotted to the
Additional Sessions Judge, Osmanabad.
3.The charge was framed against accused for the
offence under Section 302 r/w Section 34 of the IPC. They
pleaded not guilty to the charge and claimed to be tried.
Their defence is denial and that there was quarrel
between informant (PW-2) and accused No.1 Sandipan on
account of cultivating the land of Shepherd of the
village Kenwadi, which Sandipan was cultivating. They
have been falsely involved in the case. They have not
examined any witness in defence.
4.The prosecution has examined in all ten
witnesses and relied upon the aforesaid panchanamas and
postmortem report. Considering the evidence adduced by
the prosecution, the trial Court has held that the
prosecution has failed to prove the offence under Section
302 r/w Section 34 of the IPC against all the four
accused and acquitted them of the said offence, however,
convicted the accused No.1-Sandipan Sable for the offence
punishable under Section 323 of the IPC and released him
upon executing the bond for Rs.5,000/- without surety for
a period of three years for maintaining good behavior and
piece. Therefore, this appeal by the appellant/State
against acquittal of the accused of the offence under
Section 302 r/w Section 34 of the IPC on several grounds
mentioned in the memorandum of appeal.
5.We have heard learned APP appearing for the
appellant/State and learned counsel appearing for the
respondent/accused. So also, with their able assistance
we have perused the evidence adduced by the prosecution.
Moreover, we have perused the impugned judgment and
order.
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6.It is alleged that all the accused in
furtherance of their common intention pelted stones at
the deceased and as a result caused him injuries and he
died. Therefore, death of the deceased is homicidal and
the accused are responsible for his death. To prove these
facts, the prosecution has mainly relied upon the
evidence of Dr. Vilas Alure (PW-1), postmortem report
(Exh.26) and evidence of eye witnesses Shahaji Gaikwad
(PW-2), Jalindar (PW-3), Hanmant Dolare (PW-4) and Sheku
Sagat (PW-5).
7.As regards homicidal death of the deceased the
evidence of Dr. Vilas Alure (PW-1) is that he performed
postmortem examination on the dead body on 13.11.1994 at
about 01.10 pm. He deposed that he noticed following
external injuries on the person of the deceased.
1.Depressed abrasion, 3 in number on
left side of forehead, above eyebrow left
in area of 2.5 inch x 2 inch. Black crust
present. No fracture was found.
2.Leniar abrasion at iliac crest
right side of size 1.5 inch x 2 cms. Black
crust present.
3.Swollen lower part of abdomen,
without any skin injury.
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4.Swollen part at renal angle both
sides on back.
.Dr.Alure also deposed that following internal
injuries were found on abdomen and Lower part of abdomen
was swollen:
1. Huge oozing of blood as soon as
peritoneum was open at ambilicous. Ruptured
spleen at lower part was seen. Both kidneys
are ruptured. Stomach was totally empty.
.According to Dr. Vilas Alure (PW-1) all the
above injuries were ante-mortem and death was occurred
after six hours of the last meal. Stomach was found
totally empty. He stated that cause of death of the
deceased was due to cardio respiratory arrest secondary
to vasculatory collapse due to profused bleeding from
injury to spleen and kidneys (hemorrhagic shock). He
stated that external and internal injuries found on the
dead body were possible due to assault with the help of
the stone. So also, he stated that injuries in question
may be caused with the help of stones which are before
the Court i.e. article No.7. He stated that accordingly
he issued postmortem report/notes (Exh.26). In the cross-
examination he stated that injuries in question are
possible if a person falls down while running. He stated
that external injury Nos. 1 and 2 referred to above are
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simple in nature and external injury Nos. 3 and 4 are
also simple in nature. Therefore, when external injuries
sustained by the deceased were simple in nature, cause of
death was due to cardio respiratory arrest secondary to
vasculatory collapse due to profused bleeding from injury
to spleen and kidneys (hemorrhagic shock), when as per
the evidence of Dr.Vilas Alure external injuries in
question (which includes injury to spleen and kidney) are
possible if a person falls down while running and as it
has come on record that the deceased was running at the
relevant time towards the hospital it cannot be said that
death of the deceased is homicidal. Therefore, we hold
that the prosecution has failed to prove that death of
the deceased is homicidal and the trial Court has rightly
held so.
8.Once it is held that death of the deceased is
not homicidal, it cannot be said that accused are
responsible for death of the deceased. However, assuming
for the sake of argument that the prosecution has proved
that death of the deceased is homicidal, let us,
consider whether the prosecution has proved that accused
are responsible for death of the deceased. To establish
the same, as stated above, the prosecution has mainly
relied upon the evidence of eye witnesses, Pws. 2,3,4 & 5
on actual happening of the incident and on the evidence
of Pws. 7 and 10 on the point of motive to the accused to
commit murder of the deceased.
9.PW-2 Shahaji’s evidence is that on 12.11.1994 he
and PW-3 were sitting for latrine in Jawar crop. At that
time accused No.1 Sandipan Sable came abusing at that
place where the deceased, he and PW-3 were sitting for
latrine. Accused No.1 lifted stone and hit the deceased.
A blow was received on the back of the deceased. The
deceased started running. Accused No.1 started running
after the deceased and accused No.1 started pelting
stones towards the deceased. The deceased went towards
hospital. Accused Nos.2,3, and 4 namely Satyawan,
Rajendra and Devidads came from their houses and started
following the deceased. All the accused assaulted the
deceased by means of fist-blows and kicks. They also hit
the deceased with the help of stones on his back,
stomach, ribs and all over the body.
10.In the cross-examination PW-2 has stated that he
stated to Police that the accused assaulted the deceased
Mithu by stone and fist and kicks blows all over the
body. He could not assign reason why it is not
specifically mentioned in the FIR. It is material
omission in the FIR and improvement while deposing before
the Court. Therefore, that the evidence of PW-2 about
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assaulting the deceased by all the accused as claimed by
him is not believable. He has denied that he is deposing
false about the incident of assaulting the deceased when
he along with others had gone to field for attending
nature call and that false case has been filed on account
of dispute between him and accused No.1 Sandipan on the
ground of cultivating the land of one Shepherd.
11.Jalindar Rokde (PW-3)’s evidence is that on
Saturday at 05.00 pm he, the deceased and Shahaji (PW-2)
went for latrine in Jawar Crop. Accused No.1 abused them
and asked why they sat for latrine in Jawar Crop. Accused
No.1 hit a stone to the deceased. Deceased ran ahead and
accused No.1 went behind him beating the deceased. He ran
away from that place. The deceased went towards hospital.
Accused No.1 went behind the deceased beating the
deceased. Further he has stated that he does not know why
accused No.1 beat the deceased. In the cross-examination
he denied that he did not go for latrine in the Jawar
crop. He stated that he does not know how exactly the
deceased died. He has not stated as to which part of the
body of the deceased was hit by the stone which was
allegedly thrown by accused No.1. He has not stated that
said stone hit kidneys and spleen of the deceased to
which injuries were caused and the deceased was
immediately scummed to said injuries as per medical
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evidence. Moreover, he has not stated why accused No.1
hit stone to the deceased. Thus, on the basis of his
evidence at the most it can be inferred that accused
No.1 hit one stone to the deceased but his evidence is of
no help to state that either accused No.1 or all the
accused caused injury to the deceased which resulted into
his death.
12.Hanumant Dolare (PW-4) who is third eye witness
to the incident as per the prosecution case who had seen
accused No.1 beating the deceased in the land has not
supported the prosecution as he has denied that he saw
accused No.1 beating the deceased in the land of
Dohiphode and he prevented the accused No.1 and sent him
back. Similarly forth eye witness PW-5 Sheku Sagat who
had seen the accused persons running behind the deceased
and one of the accused pelting stones towards the
deceased has not supported the prosecution case as he has
denied suggestions in this respect on behalf of learned
APP.
13.As per the prosecution case accused No.1 had
motive to commit the murder of the deceased, as the
deceased was having illicit relation with Dhondabai wife
of accused No.1. On the point of motive prosecution has
adduced evidence of PW-7 Narayan father of the deceased
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and PW-10 Gajendra Dolare. Father of the deceased deposed
that one female worker Dhondabai started keeping illicit
relation with the deceased and therefore accused No.1 was
in cross terms with the deceased. However, in the cross-
examination PW-7 has stated that said Dhondabai might be
80 years and she is still alive. Considering the said
evidence of PW-7 it is not possible to believe that the
deceased Mithu who was young person was having illicit
relation with such an old lady, so as to say that accused
No.1 had motive to kill the deceased. The evidence of PW-
10 Gajendra Dolare shows that the deceased was having
illicit relation with Dhondabai and therefore Devidas and
accused No.1 Sandipan had beaten to Mithu. He deposed
that accused No.4 had told the same to him. Thus, it is
clear that PW-10 had no direct knowledge of alleged
illicit relation between wife of accused No.1 and the
deceased. Therefore, for the above reasons evidence of
both Pws. 7 and 10 is not sufficient to say that the
accused had motive to cause death of the deceased.
14.Considering the medical and other evidence
adduced by the prosecution, the trial Court had concluded
that accused No.1-Sandipan Sable voluntarily caused heart
to the deceased and accordingly held him guilty for the
offence under Section 323 of the IPC and released him on
executing bond of good behavior as said earlier. But, as
there is no appeal by the said accused, we need not
consider the aspect whether conviction of accused No.1
for the said offence is correct or otherwise.
15.For all the reasons discussed above evidence of
Pws. 2,3,4,5,7 and 10 is not sufficient to infer that the
accused are responsible for death of the deceased, even
if it is assumed that death of the deceased was
homicidal, to attract offence under Section 302 r/w
Section 34 of the IPC. Thus, we hold that the prosecution
has failed to prove beyond doubt the offence under
Section 302 r/w Section 34 of the IPC against the
accused. The trial Court has rightly held so and rightly
acquitted all the accused of the said offence by the
impugned judgment and order. The view taken by the trial
Court to acquit the respondents/accused of the said
offence is reasonably possible view and it is not the
case that there is an error in appreciating the evidence
by the trial Court to arrive at the above conclusion. As
such, there is no justifiable ground to interfere with
the impugned judgment and order. Therefore, appeal being
devoid of merits the same is liable to be dismissed.
Accordingly we dismiss the the same. Bails bonds of the
accused /respondents stand cancelled.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
VishalK/ criapl425.01
3 issues framed by the court
Whether the evidence collected by the prosecution is sufficient to prove that the death was homicidal and caused by the accused.
Whether the accused can be held responsible for the death of the deceased under Sections 302 and 34 of IPC.
Whether the High Court should interfere with the acquittal of the accused by the trial court.
2 provisions across 1 enactments
The State of Maharashtra
Sandipan Dadarao Sable
Satyawan Dadarao Sable
Rajendra Sandipoan Sable
Devidas Dadarao Sable
S.M. Gavhane
T.V. Nalawade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court