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IN THE HIGH COURT OF BOMBAY AT NAGPUR
Z.A. Haq, Amit B. Borkar, JJ.
State Of Maharashtra Appellant.
Versus
Rajesh S/O Dattuji Kumbhekar and others Respondents.
Cri. Appeal No. 580 of 2008
Decided on : 26-11-2020
ACQUITTAL - MURDER - [302, 147, 148, 149, 37(1) of IPC and Bombay Police Act] - The court acquitted all the respondents of the offences punishable under Sections 147, 148, 302 and 307 read with Section 149 of the Indian Penal Code and Section 37(1) punishable under Section 135 of the Bombay Police Act. The appeal was partly allowed, setting aside the acquittal of respondent No.2 Dashrath Dharma Debur for the offence punishable under Section 302 of the Indian Penal Code and directing him to suffer a sentence of rigorous imprisonment for life. The acquittal of respondent No.2 Dashrath Dharma Debur for offences punishable under Sections 147, 148 and 149 of the Indian Penal Code was confirmed. The acquittal of the respondent Nos.1, 3, 5 to 7 and 9 for offences punishable under Sections 302, 147, 148 and 149 of the Indian Penal Code was also confirmed. All case papers in relation to the claim of juvenility of the respondent No.4 Ravi s/o Wasudeo Debur were to be sent to the Juvenile Justice Board, Yavatmal, for holding an inquiry as to the juvenility of the respondent No.4 Ravi s/o Wasudeo Debur. The appeal was kept pending for decision against respondent no.4 Ravi s/o Wasudeo Debur on merits, after receipt of the report from Juvenile Justice Board, Yavatmal. The bail bonds of the respondent Nos.1, 3, 5 to 7 and 9 stood cancelled, and the appeal was fixed on 15th January, 2021 for further orders regarding respondent No.4 Ravi s/o Wasudeo Debur.
Fact of the Case:
The appellant State of Maharashtra challenged the judgment and order passed by Adhoc Additional Sessions Judge, Yavatmal, in Sessions Case No.113 of 2006 dated 14-5-2008, acquitting all the respondents of the offences punishable under Sections 147, 148, 302 and 307 read with Section 149 of the Indian Penal Code and Section 37(1) punishable under Section 135 of the Bombay Police Act. The prosecution case involved the assault and murder of Mahadev by the accused, leading to the filing of an F.I.R. and subsequent investigation.
Finding of the Court:
The court found the acquittal of the respondent No.2 Dashrath Dharma Debur for the offence punishable under Section 302 of the Indian Penal Code to be unreasonable and set it aside, finding him guilty of having committed the offence punishable under Section 302 of the Indian Penal Code and directing him to suffer a sentence of rigorous imprisonment for life. The acquittal of respondent No.2 Dashrath Dharma Debur for offences punishable under Sections 147, 148 and 149 of the Indian Penal Code was confirmed. The acquittal of the respondent Nos.1, 3, 5 to 7 and 9 for offences punishable under Sections 302, 147, 148 and 149 of the Indian Penal Code was also confirmed. All case papers in relation to the claim of juvenility of the respondent No.4 Ravi s/o Wasudeo Debur were to be sent to the Juvenile Justice Board, Yavatmal, for holding an inquiry as to the juvenility of the respondent No.4 Ravi s/o Wasudeo Debur. The appeal was kept pending for decision against respondent no.4 Ravi s/o Wasudeo Debur on merits, after receipt of the report from Juvenile Justice Board, Yavatmal. The bail bonds of the respondent Nos.1, 3, 5 to 7 and 9 stood cancelled, and the appeal was fixed on 15th January, 2021 for further orders regarding respondent No.4 Ravi s/o Wasudeo Debur.
Issues: The issues involved in the case included the assessment of evidence, the credibility of eyewitnesses, the claim of juvenility of one of the respondents, and the application of Section 149 of the Indian Penal Code to establish the vicarious liability of the members of an unlawful assembly.
Ratio Decidendi: The court found that the evidence on record was sufficient to hold the respondent No.2 guilty of the offence punishable under Section 302 of the Indian Penal Code, and that the murder of the deceased was not committed in prosecution of the common object of the assembly. The court also considered the claim of juvenility of one of the respondents and ordered an inquiry by the Juvenile Justice Board. The court confirmed the acquittal of the other respondents for the offences punishable under Sections 302, 147, 148 and 149 of the Indian Penal Code.
JUDGMENT :
AMIT B. BORKAR, J.
Through this appeal, the appellant State of Maharashtra, challenges the judgment and order passed by Adhoc Additional Sessions Judge, Yavatmal, in Sessions Case No.113 of 2006 dated 14-5-2008, thereby acquitting all the respondents of the offences punishable under Sections 147, 148, 302 and 307 read with Section 149 of the Indian Penal Code and Section 37(1) punishable under Section 135 of the Bombay Police Act.
2. In short, the prosecution case runs as under:-
F.I.R., dated 24-8-2006 filed by Informant - Mangala (PW 1), who is the wife of Mahadev (deceased), contends that her husband (deceased) was serving in M.S.R.T.C. Alongwith the informant, parents of the informant and her two brothers namely Dnyaneshwar and Bhayya were also residing. Brotherinlaw of the informant is running panstall, which is managed by one Sunil. On 24-8-2006 at around 8.00 a.m. when the informant was in her house, the accused Nos.1 to 6 went to the said panstall, which is situated in front of her house. Sunil was present at the panstall. The accused Nos.1 to 6 purchased pouches of gutkha and when Sunil demanded the price of gutkha, accused Nos.1 to 6 raised quarrel with Sunil. Therefore, one Jitendra filed report in Police Station in the name of Sunil.
3. At about 3.00 p.m. on 24-8-2006 Mahadev - husband of informant Mangala (PW 1) returned to the house. When he came to know about the incident happened at about 8.00 a.m., he went to the place of the accused and asked why they raised quarrel with Sunil and then returned home. Thereafter at about 4.00 p.m. on 24-8-2006, all nine accused came in front of the house of the informant and asked Mahadev (deceased) and Bhayya as to why they had come to their house and abused. When Mahadev and Bhayya came outside the house, the accused abused and assaulted both of them using sticks. Accused No.2 Dashrath assaulted Mahadev by using the sword on his head and killed him and also caused hurt to Bhayya.
4. The complainant Mangala (PW 1) filed F.I.R., at 5.00 p.m. on 24-8-2006, which was registered as Crime No.125/2006 and the investigation started. On the same day, inquest, spot and seizure panchanamas of simple earth, earth containing blood were prepared and the dead body of Mahadev was referred to the Medical Officer Dr. Sute (PW 10) for carrying out postmortem. The postmortem report was prepared by Dr. Sute (PW 10), which was collected by the Investigating Officer Shri Fulpagar (PW 11). The Investigating Officer recorded statements of witnesses including eyewitnesses on 25-8-2006 and 26-8-2006. The Investigating Officer referred all the accused for medical examination and seized weapons alleged to have been used by the accused and also seized clothes of the accused alleged to have been worn by them at the time of offence under panchanamas on 26-8-2006. The Investigating Officer seized blood sample of all the accused on 26-8-2006 and sent muddemal to the Chemical Analyst by letter dated 26-9-2006. The Investigating Officer completed the investigation and filed chargesheet in the Court of the Judicial Magistrate First Class, Babhulgaon.
5. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants were charged under Sections 302, 147, 148 and 149 of the Indian Penal Code. They pleaded not guilty to the said charges and claimed to be tried.
6. During the trial, in all the prosecution examined eleven witnesses. Three of them namely Mangala Borkar (PW1), Siddheshwar Parsude (PW 2) and Sushila Parsude (PW 4) were examined as eyewitnesses. In defence, no witness was examined.
7. After recording the evidence adduced by the prosecution; perusing the exhibits proved by the prosecution and the defence; and hearing the learned Advocate for the accused and learned A.P.P. for the State, the trial Judge acquitted all the accused. Hence, the State has filed the present appeal.
8. The respondent No.8 had died during pendency of the present appeal, hence appeal stands
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