State vs Shri Sadashiv Parab and Others

U.V. Bakre

Heard the learned counsel for both the parties. This is an application filed by the State u/s 378(3) of the Code of Criminal Procedure, 1973 praying for leave to file appeal against the Judgment and Order of acquittal dated 23/12/2010 passed by the Assistant Sessions Judge, North Goa, Panaji in Sessions Case No. 15 of 2008.

The respondents were tried for the offences punishable under sections 143, 147, 304, 323 and 352 read with section 149 of the Indian Penal Code (IPC).

Case of the prosecution, in short, was that on 27/11/2005 at about 13.15 hours at Shri Devi Bhumika Vetal Temple, Devulwada, Palyem, pernem, the accused persons (respondents), in furtherance of their common object of forcibly taking the keys of the Devastan and consequently the possession thereof, formed an unlawful assembly, manhandled and assaulted Shri Manohar Mahadev Parab, Pujari of said Temple, who was suffering from heart disease, which fact was known to the respondents, with fist blows, and thereby accelerated his death, who collapsed and died immediately after the incident of assault.

The prosecution had examined all together fifteen witnesses in support of its case.

The learned Trial Judge, upon consideration of the entire evidence on record, concluded that the prosecution has failed to prove the charges. Therefore, all the respondents came to be acquitted.

The learned Public Prosecutor has contended that the meeting which was called in the said temple for discussing the question of availing fund under MPLAD Scheme had become an unlawful assembly subsequently and the evidence of eyewitnesses namely PW7, PW8 and PW12 supported by the evidence of PW11 was consistent and had remained unshaken in material aspects and was sufficient to prove the guilt of the accused persons beyond reasonable doubt. On the contrary, the learned Senior Advocate, on behalf of the respondents, has argued that the evidence of the said eyewitnesses is not at all consistent and that they have not corroborated one another and the same has been rightly rejected by the Trial Judge. He urged that the order of acquittal is passed based on proper appreciation of evidence and therefore leave to appeal should not be granted.

Perused the original record and proceedings.

What emerges from the records is that out of the fifteen witnesses examined by the prosecution, the relevant witnesses are only PW7, Ravindra Parab who lodged the complaint with Pernem Police, which is at Exhibit 82; PW8, Jaganath Parab; and PW 12 Ramesh Parab, who are allegedly the eye witnesses and lastly the Forensic Surgeon namely P.W. 10, Dr. Silvano Dias Sapeco.

The scrutiny of evidence of the said eye witnesses reveals as follows;

I). The accused nos. 1 and 2 were respectively the President and Dy. Secretary of the Devasthan Committee. The committee had decided to avail fund under MPLAD Scheme for the purpose of construction of Sabha Mandap.

II)Some of the Mahajans of the temple had objection for availing funds under the MPLAD scheme. On the day of incident a meeting of all the Mahajans of the temple was called for discussion on the said issue.

III)About 320 Mahajans were present for the said meeting, out of which about 25 to 30 had come from the State of Maharashtra.

IV)There was a commotion and a group of Mahajans had rushed towards the Pujari Shri Manohar Mahadev Parab, who was manhandled and assaulted with fist blows.

V) According to P.W.7, the Mahajans who had come from Maharashtra by tempo bearing no. MH07-3525 were also involved in the assault. However the persons are not accused in this case. VI) Though PW7 and PW8 have deposed as eyewitness however they have not at all corroborated each other. According to P.W.7, Sadashiv Parab and Chandrakant Tilve were followed by a group of Mahajans and all had manhandled said Manohar Parab and that Ramchandra Parab gave fist blows. But according to P.W. 8, Ramesh Parab, Narayan Tukaram Parab and Bhiva Tilve went towards Manohar Parab and started assaulting him.

VII)Though PW12 had initially deposed as eyewitness by stating that all the accused persons were involved in pushing, dragging, throwing the Pujari, Manohar Parab down and assaulting him with fist blows, however he has then stated that on inquiry made with Shri Manohar Mahadev Parab, he informed that Gunvant Parab and Narayan Parab along with others assaulted him.

VIII)The evidence of PW7, PW8 and PW12, as far as the alleged incident of assault on Manohar Parab, is concerned, is sketchy and does not at all inspire confidence.

The medical evidence of PW10 reveals that the deceased had not sustained any external injuries. If the deceased was assaulted with fist blows, then he had to have injuries on his face, mouth, nostrils, etc. The deceased was found to be a person who had chronic heart disease along with residual effects of old myocardial infarction. According to PW10, in case of a person having a weak heart, his death could be caused even without assault. He has deposed that even noise of group of people can create fear and such fear can result in death of such person. He has admitted that whatever has been found by him in the postmortem examination report is not inconsistent with the hypothesis of a natural death. He has admitted that in case of a person like the deceased, even the slightest tension can cause death.

In the circumstances above, the learned Trial Judge had rightly disbelieved the evidence of the eyewitnesses. The other witnesses examined by the prosecution are not of any relevance, once the eyewitnesses are discarded. As has been rightly contended by the learned Senior Advocate, the order of acquittal is passed on proper appreciation of evidence. Leave to appeal, in such a case, cannot be granted. It is well settled that even when the evidence raises suspicion about the involvement of the accused persons in crime, leave to appeal cannot be granted. If two views are reasonably possible of evidence on record and if the Appellate Court feels that it would have taken a different view if the case had been tried by it, no leave to appeal can be granted.

In the result, we are of the view that no ground has been made out for grant of leave to file appeal against the Judgment and Order of acquittal. In the result, the application is rejected.