STATE OF MAHARASHTRA Vs. DINESH MAHADU WAGH

JUDGEMENT

(1.) This is an appeal filed by the State against the Judgment and order passed by the II Additional sessions Judge, Thane on 14.1.1992 in Sessions Case no. 229 of 1991 acquitting the three accused of offences punishable under Section-432 and 302 read with 34 of the Indian Penal Code.

(2.) The brief facts of the prosecution case are as under:

(3.) We have perused the record and heard both sides. In our view, the reasons given for the acquittal cannot be faulted and are reasonable and cogent. The following discrepancies exist in the evidence on account of which the benefit of doubt is required to be given to the accused. a) The sole eye witness P. W. No. 2 Anjayya is a person who claims to be the servant of the deceased prakash. He claims to be sleeping in the same room with the deceased Prakash on the night ot the incident. The room in which deceased Prakash was sleeping was a small room admeasuring 10xl0ft. It is not disputed that the other servants by name Chandu, Sanju and sugriv were sleeping in some other room. This witness states that he woke up on the hearing of cries but was in. a sleepy mood. First, he saw that the Prakash was lying in a pool of blood on the ground below the cot. On seeing the pool of blood he was frightened. On seeing the said incident he closed his eyes. Yet he saw that the accused No. 1-Datta and two other assailants Dinya and Balya assaulting Prakash. He claims to be standing in the room itself. The assailants who saw him are said to have left the room. According to this witness, he immediately went to inform the incident to Sanju. In his evidence, this witness further claims that he had gone to the police station alongwith P. W. No. 1-Lata after occurrence of the incident. At that time police had enquired with her as to whether there were any eye witnesses to the incident. He Claims to have informed the police that he was an eye witness and that he was willing to lodge a complaint but further claims that inspite of this, police did not record his complaint. We find that this version is very suspicious. If this witnesses was an eyewitness who had her reputation in indent to the police when he went alongwith lata, in normal course, the statement of this witness would have been recorded as the first information Report particularly when p. w. No. 1 Eatd, was not in witness these to the incident. b) Further, this witness claims to have accused No. 1. the support of this police had felt the need to hold an identification parade in order to show that the assailants were identified by this witness. C) AS regards the identification parade mentioned hereinabove, the version of p. w. No. 2-Anjayya is that he did not know the names discussed used Nos. 2 and 3 but he name to know their names and they were shown to him by the police at the time of identification parade. He admitted that when he went for identification parade, accused Nos. 2 and 3 were shown to him by the police. Their names were disclosed to him before the identification parade and it is only thereafter that he identified these accused in the identification parade. It is clear from this evidence that, the evidence pertaining to the identification parade is a farce and it has been rightly held to be so by the Trial Court. d) That neither Chandu nor any other servant or other residents of the building like the mother of the deceased who came to see the deceased Prakash alongwith lata and the wife of the deceased were examined. e) As regards the oral dying declaration said to have been made by the deceased Prakash to his sister lata, we find that the same is not reliable. Firstly lata would not have been present in the building in normal course because she resides elsewhere with her husband in Kalwa town. She claims to have come to her mother's place because she had quarrelled with her husband. This has been proved to be an omission in her police statement and it is material, because it is the reason given by the prosecution for her presence in the building. Secondly, in her examination-in-chief, she had stated that deceased Prakash disclosed to her that he was assaulted by Datta-accused No. 1 and others. In her cross-examination, she stated that immediately after entering the room she had asked Prakash what had happened but he had not answered the question as he was not in a position to speak loudly, she claims to have therefore, put her ear to the mouth of the deceased and heard his declaration. However, it has been brought on record in her cross-examination that she has not stated in the F. I. R. that deceased Prakash had disclosed to her that other persons had assaulted him. That she had also not disclosed in the F. I. R. that she had to lift. the head of Deceased-Prakash before he could make a disclosure. It must be borne in mind that there were 22 incised wounds grievous in nature on the body of the deceased Prakash. It is very difficult to accept that he would have been in a position to make any disclosure. f) As regards the evidence of Lata, she claims to have seen accused Nos. 1 to 3 in the evening at about 7. 00p. m. standing at the disputed wail. This aspect has been brought an record as an admission in the police statement. Further, P. W. No. 1 Lata claims that P. W. No. 1 anjayya disclosed to her the names of the assailants but this fact is not even supported by P. M. No. 2 Anjayya in his own deposition. g) As regards discovery of the weapons, the two panch witnesses have not supported the prosecution and this is a ground on which this evidence is held to be doubtful. Similarly, as regards discovery of blood stained clothes from the house of those accused persons, the court has observed that these discoveries were also suspicious because all the discoveries were shown to have been made piecemeal. It has been observed by the court that accused no. 1 was said to have made a statement earlier on 17.1.1991 but had not offered to produce his blood stained clothes. h) Taking into account the aforesaid reasons, in our view, it cannot be said that the findings given by the Trial Court are so perverse so as to warrant any interference in an appeal against the acquittal. In the circumstances, the appeal is dismissed. Bail bands to stand cancelled. All concerned to act on the copy of this order duly authenticated by the C. S. /sheristedar of this court.