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SUPREME COURT OF INDIA
Pinaki Chandra Ghose, Rohinton Fali Nariman, JJ.
MACHINDRA – APPELLANT(S)
VERSUS
SAJJAN GALPHA RANKHAMB & ORS. – RESPONDENT(S)
CRIMINAL APPEAL NO.1794 of 2013
Decided On : 19-04-2017
AIR 2016 SC 5160 : 2016 (10) JT 332 – Relied upon
(b) Criminal trial – Contradictions in the depositions of PW-4 and PW-10 – Medical examination of respondent Nos.1 & 2 not on the date of arrest but prior to it – Non-examination of material witness – Rendering prosecution version doubtful – Delay in lodging FIR not explained – Opinion on cause of injuries not mentioned in doctor’ deposition nor in post mortem report – Prosecution failing to prove that death was caused due to the injuries inflicted by the recovered weapons. (Para 12, 13, 15)
(1960) 3 SCR 1; (1988) 4 SCC 302 – Relied upon
Facts of the case:
Respondents 1 and 2 were convicted by the trial court u/s 302 r/w section 34 IPC.
The High Court reversed the finding and acquitted both the accused.
Finding of the Court:
There are not only actual but substantial doubts as to the guilt of the respondents herein.
Result: Appeal dismissed.
JUDGMENT
Pinaki Chandra Ghose, J.
The instant appeal is directed against the judgment and order dated 24th February, 2011 passed by the High Court of Judicature of Bombay, Bench at Aurangabad, in Criminal Appeal No.333 of 2010, whereby the High Court while allowing the appeal of respondent Nos.1 & 2 herein, set-aside the judgment and order of conviction and sentence dated 24.08.2010 passed by learned Sessions Judge, Osmanabad, and acquitted them of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short “IPC”).
2. Brief facts necessary for disposal of the present appeal are as follows:
Parties herein are close relatives as respondent No.1 is the brother-in-law of the appellant herein (his sister having married to the appellant) and respondent No.2 is the son of respondent No.1. It appears that appellant had purchased 3 acres of land from his father-in-law (father of respondent No.1) about 20 years before the date of occurrence. On account of the said transaction, respondent No.1 was not happy, which is stated to be the alleged enmity between the parties. Appellant had two sons, namely, Gorakh and Dattatreya. On 21.04.2007, a complaint was lodged by the appellant at Osmanabad Rural Police Station stating that the complainant, his wife and other relatives had gone to attend the marriage of his granddaughter Rupabai, while his younger son Dattatreya remained at home. After attending the marriage, when they came back, one Balu Shekha Solawar told the complainant that accused Sajjan and his son Kakasaheb had killed Dattatreya in the field of Sanjay Sambhaji Jethithor. The complainant immediately rushed towards the spot and found the dead body of Dattatreya lying on the field. The villagers who were present on the spot told the complainant that accused killed Dattatreya. On the basis of the complaint, Osmanabad Rural Police Station registered the case as Crime No.36 of 2007 under Section 302 read with Section 34 of IPC against respondent Nos.1 & 2 herein, who are none other than maternal uncle of deceased and his son for causing death of the deceased with stick and Khil (yoke pin). After completion of the investigation by the Police Inspector of Osmanabad Police Station (PW-19), final report was submitted before the Court of Chief Judicial Magistrate, Osmanabad. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Osmanabad. Twenty witnesses were examined on prosecution side and five witnesses were examined on defence side. The learned Sessions Judge vide his judgment and order dated 24.08.2010, convicted respondent Nos.1 and 2 herein for offence punishable under Section 302 read with Section 34 of IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/-each, in default to make payment of fine, to suffer further imprisonment for two months.
3. Being aggrieved by the judgment and order of conviction and sentence passed by the learned Sessions Judge, Osmanabad, the accused respondents preferred Criminal Appeal No.333 of 2010 before the High Court of Judicature of Bombay, Bench at Aurangabad. The High Court allowed the said appeal, set-aside the judgment and order of conviction and sentence dated 24.08.2010 passed by learned Sessions Judge, Osmanabad, and acquitted respondent Nos.1 & 2 of the offence punishable under Section 302 read with Section 34 of IPC. Hence, the present appeal by the father of the deceased who is the complainant in this case.
4. We have heard Mr. Rajat Kapoor, learned counsel appearing for the complainant-appellant herein and Mr. M.Y. Deshmukh, learned counsel appearing for respondent Nos.1 & 2 herein, at length. We have also perused the judgments of both the High Court and the Trial Court as also the evidence on record.
5. Learned counsel appearing for the appellant submitted that the High Court failed to consider the autopsy conducted on the body of deceased where
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