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2018 Supreme(Bom) 2394
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
B.R. Gavai, M.G. Giratkar, JJ.
Kailas Shriram Chavan & Anr. - Appellants
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 90 of 2015
Decided On : 27-03-2018
A.S. Manohar, Adv., T.A. Mirza, Adv.
The central legal point established in the judgment is the requirement to consider the evidence as a whole and the benefit of doubt principle favoring the accused in case of doubt about causing the injury.
Headnote:
Indian Penal Code - Conviction under Section 302 - [BLACK MAGIC] - [Indian Penal Code, Section 302] - The court discussed the evidence of witnesses, the discovery of weapons, and the medical officer's testimony. It highlighted the unreliability of the prosecution's evidence and the doubt created about the accused causing the injury, leading to the benefit of doubt going to the accused.
Fact of the Case:
The appellants were convicted for the offence punishable under Section 302 of the Indian Penal Code for allegedly assaulting and causing the death of the deceased whom they suspected of practicing black magic on their family members.
Finding of the Court:
The court found the evidence of the prosecution witnesses to be unreliable and highlighted material omissions and contradictions in their testimony. It also questioned the reliability of the discovery of weapons and the medical officer's testimony, ultimately leading to the benefit of doubt going to the accused.
Issues: Reliability of prosecution witnesses, discovery of weapons, and medical officer's testimony.
Ratio Decidendi: The court emphasized the need to consider the evidence as a whole and not in piecemeal, and highlighted the doubt created about the accused causing the injury, leading to the benefit of doubt going to the accused.
Final Decision: The appellants were acquitted of the offences charged with, and their bail bonds were cancelled. Other criminal appeals were dismissed.
JUDGMENT
M.G. Giratkar, J. - By way of Criminal Appeal No. 90 of 2015, the appellants challenge the judgment and order dated 29.01.2015 in Sessions Trial No. 56 of 2010 passed by the learned Sessions Judge, Pusad thereby convicting them for the offence punishable under Section 302 of the Indian Penal Code and sentencing them to suffer imprisonment of life and to pay a fine of Rs. 10,000/-each.
2. The case of the prosecution against the accused/appellant in short is as under :Accused Madhukar and Kailas were suspecting deceased Prakash Rathod about playing black magic on their family members. On the day of incident i.e. 07.08.2010 at about 10:00 a.m., deceased Prakash Rathod along with Bharat Ade and Anil Ade were going towards Pusad on the motor cycle. Said motor cycle was driven by deceased Prakash Rathod. When the said motor cycle reached on the bridge after half kilometer from village Dhundi, accused Kailas was standing on the bridge. He saw motor cycle of deceased and made obstacle by his cycle. Deceased Prakash, Bharat and Anil fell down from the motor cycle. Kailas was having an axe. Accused Rmesh, Shobhabai, Seemabai, Atul, Laxmibai, Madhukar and Kailash started beating the deceased by sticks. Madhukar and Kailas started assaulting deceased on his neck, shoulder repeatedly. They were saying that deceased had played black magic to the mother and sister and created problems in their house. Bharat and Anil ran towards village Dhundi. They brought people from the village. Accused persons ran away. Deceased was lying dead. Bharat Ade lodged a report (Exh.55). Crime was registered vide printed FIR (Exh.56). Police Inspector Shri Badre investigated the crime and filed the charge sheet before JMFC, who, in turn, committed it to the Court of Session at Pusad. Charge was framed at Exh.17. The same was read over and explained to accused Nos.1 to 7. They pleaded not guilty and claimed to be tried. The defence appears to be total denial. The prosecution has examined in all 15 witnesses. At the conclusion of trial, learned trial Court convicted accused Kailas and Madhukar and sentenced them as stated above. Learned trial Court acquitted other accused.
3. Heard the learned Counsel appearing on behalf of the respective appellants and Shri T.A. Mirza, learned Additional Public Prosecutor appearing on behalf of the State.
4. The learned trial Court mainly relied on the evidence of PW Nos.1 and 2 and the discovery of weapons at the instance of accused Madhukar and Kailas. PW Nos.1 and 2 have stated that they were present at the time of incident. They were going along with the deceased on his motor cycle to Pusad. Accused Kailas obstructed the motor cycle by his cycle. All three fell down. Both the witnesses have stated that accused Kailas and Madhukar beat deceased by an axe. They have also stated in their evidence that other accused beat the deceased by sticks.
5. The evidence of PW Nos.1 and 2 are not reliable in respect of the incident stated by them. PW1 has stated in his examination-in-chief that he sustained injury on his left leg and he fell down from the motor cycle. But, in the cross-examination, he has admitted that he and PW2 Anil did not suffer any injury. Both the witnesses have admitted that at the time of incident, there was raining and there was mud on the spot of incident. Medical Officer not stated in his evidence that the clothes of deceased were stained with mud. Clothes of PW Nos.1 and 2 were also not seized by the Investigating Officer. Material omissions and contradictions are brought on record in the evidence of PW Nos.1 and 2. Investigating Officer has proved in his evidence all the omissions and contradictions. He has stated as under :
"PW1 did not disclose at the time of lodging of complaint that on the date of incident it was third day function of Atmaram Jadhav and Prakash was present there and Prakash was told that he had to go to hospital and Prakash also stated that he had to go to Pusad, so also after progr
