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2020 Supreme(Bom) 1261
IN THE HIGH COURT OF BOMBAY AT NAGPUR
Z.A. HAQ, AMIT B. BORKAR, JJ.
State of Maharashtra through Police Station Officer – Appellant
Versus
Namdeo Haribhau Dayare & Others – Respondent
Criminal Appeal No. 717 of 2006
Decided On : 23-10-2020
For the Appellant : M.K. Pathan, A.P.P.
For the Respondents:R1 to R4, R. M. Patwardhan, Advocate.
The main legal point established in the judgment is the importance of prompt FIR, the credibility of related witnesses, and the assessment of evidence in reaching a decision in a criminal case.
Headnote:
Acquittal - Murder - IPC 302, 324, 34 - The judgment and order passed by the Sessions Court, Wardha acquitting the respondents-accused of the charges of committing offences punishable under Sections 302, 324 read with Section 34 of the Indian Penal Code is set aside. It is held that respondent no. 1-Namdeo Haribhau Dayare, respondent no. 2-Sau. Malu Dyaneshwar Uike, respondent no. 3-Girish Uttamrao Gadade and respondent no. 4-Shamrao Daduji Gondane are found guilty of committing an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous life imprisonment and fine of Rs. 10,000/- (Rs. Ten Thousand) each. In default of payment of fine, the defaulting respondent-accused shall undergo further simple imprisonment for six months. It is held that respondent no. 1-Namdeo Haribhau Dayare, respondent no. 2-Sau. Malu Dyaneshwar Uike, respondent no. 3-Girish Uttamrao Gadade and respondent no. 4-Shamrao Daduji Gondane are guilty of committing offence punishable under Section 324 of the Indian Penal Code and to undergo sentence of three years and to pay fine of Rs. 5,000/- (Rs. Five Thousand) each. In default of payment of fine, the defaulting respondent-accused shall undergo further simple imprisonment for three months. Both the sentences shall run concurrently. The entire amount of fine, which would be deposited by the respondents-accused should be given to complainant- Smt. Shobha Pralhad Payekar. The Police Inspector of Police Station, Pulgaon shall file compliance report of the amount of fine to be deposited by respondents-accused nos. 1 to 4 within three months. Muddemal properties be disposed of as per directions of the Sessions Judge, Wardha. The Criminal Appeal is allowed in the above terms. At this stage, learned Advocate for respondents-accused prayed for two months time to enable the respondents-accused to surrender. Considering the present situation of pandemic, the respondents-accused are granted time till 27th November, 2020 to surrender. The respondents-accused have furnished bail bonds, which shall continue till they surrender or they are arrested.
Fact of the Case:
The deceased, Rajkumar, was assaulted and killed by the accused using weapons like crow-bar, stick, spear, and stones. The prosecution case was supported by the evidence of three eye witnesses, including the deceased's mother and wife. The accused were acquitted by the Trial Court, leading to the State filing an appeal.
Finding of the Court:
The Court found the accused guilty of committing an offence punishable under Section 302 of the Indian Penal Code and sentenced them to undergo rigorous life imprisonment and fine. They were also found guilty of committing an offence punishable under Section 324 of the Indian Penal Code and were sentenced to three years of imprisonment and a fine. The entire amount of fine was to be given to the complainant. The Criminal Appeal was allowed, and the respondents-accused were granted time to surrender.
Issues: The main issue was the guilt of the accused in the murder of Rajkumar, as well as the assessment of the evidence and testimonies provided by the prosecution and defense witnesses.
Ratio Decidendi: The Court's decision was based on the assessment of the evidence provided by the prosecution, including the testimonies of the eye witnesses and the medical evidence. The Court also considered the promptness of the FIR, the presence of human blood at the scene, and the principles related to the credibility of related witnesses.
JUDGMENT :
Amit B. Borkar, J.
1. Through this appeal, preferred under Section 378(1) of the Code of Criminal Procedure, 1973 (Cr.P.C.), the State of Maharashtra impugned the judgment and order dated 05.09.2006 passed by the Additional Sessions Judge, Wardha in Sessions Trial No. 69/2005, acquitting the respondents for the offence punishable under Sections 302, 324 read with Section 34 of the Indian Penal Code, 1860 (IPC).
2. In short, the prosecution case runs as under:-
On 23.02.2005 at about 9’O Clock in the night Rajkumar came to his house for going out. His wife Manisha(PW4) and mother- Shobha (PW3) were in front of his house. Namdeo (accused no.1) was digging a hole in front of his house and Girish(accused nos.3) and Shamrao (accused no.4) were standing alongwith Namdeo(accused no.1). Rajkumar asked Namdeo(accused no.1) as to why he was digging a hole in the deep hours in the night, upon which Namdeo(accused no.1) questioned Rajkumar as to how he has the authority to ask and suddenly gave a blow of crow-bar on the head of Rajkumar. Rajkumar fell down due to hitting of crow-bar. The informant-Shobha(PW3) and Manisha(PW4) tried to intervene but, both of them were beaten by the accused. Even after Rajkumar fell down on the ground, the accused continued to beat him mercilessly and Rajkumar died on the spot. The accused beat Rajkumar, using weapons like crow-bar, stick and stones, who succumbed to the injuries received by him because of a brutal assault.
3. Shobha(PW3) immediately went to the Police Outpost Rohane but, no one was present in the Outpost and therefore, Shobha (PW3) returned. At around 10.00 p.m., Police Van came at the spot of incident and took Shobha(PW3) and deceased-Rajkumar to the hospital at Pulgaon. Shobha(PW3) launched the First Information Report (FIR) at 0.45 a.m. on 24.02.2005. Dhanraj Ghondmode(PW7)- Investigating Officer (I.O.) started an investigation. The I.O. prepared Spot Panchnama and recorded statements of witnesses and arrested the accused. While the accused were in custody, recovery of incriminating articles including blood-stained clothes of the accused, weapons stained with blood was recovered. After completing the investigation, charge-sheet came to be filed against the accused.
4. The case was committed to the Court of Sessions in the usual manner. In the Trial Court, the appellants were charged under Sections 302 and 324 of the IPC. They pleaded not guilty to the said charges and claimed to be tried.
5. During the trial, in all the prosecution, examined seven witnesses. Three of them namely Shobha(PW3), Manisha (PW4) and Jagdish(PW5) were examined as eye-witnesses. In defence, no witness was examined.
6. After recording the evidence adduced by the prosecution; perusing the exhibits proved by the prosecution and the defence; and hearing the learned Advocates for the parties, the Trial Judge acquitted all accused. Hence, the State has filed the present appeal.
7. We have heard Shri M. K. Pathan, learned Additional Public Prosecutor (APP) for the State of Maharashtra (appellant) and Shri R. M. Patwardhan, learned Advocate for respondent nos.1 to 4 . We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the respondent recorded under Section 313 of the Cr.P.C.; and the impugned Judgment.
8. Before analyzing the evidence available on record and going into legal aspects of the same, we feel it appropriate to first deal with contentions advanced by the learned Advocates on either side.
9. Shri M. K. Pathan, learned APP for the appellant strenuously urged that flimsy reasons for acquittal have been assigned by the Trial Judge in the impugned judgment. He firstly contended that the prosecution case is backed up by the evidence of three eye witnesses namely Shobha(PW3), Manisha(PW4) and Jagdish(PW5). He strenuously urged that the account given by Shobha(PW3), Manisha(PW4) and Jagdish(PW5) is not only corroborated by
