Bombay High Court
Ravi Bhauraya Kolule And Anr vs The State Of Maharashtra on 30 November, 2015
J APEAL 482 OF 2007.doc
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.482 OF 2007
1. Ravi Bhauraya Kolule, ]
age 26 years, ]
occupation: Agriculturist ]
] .. Applicants
2. Siddhappa Bhima Lade ] Original
age: 48 years, Occn. Agriculturist ] Accused
] Nos 1 & 7
Both residing at Nimbargi ig ]
Taluka: South Solapur ]
District: Solapur ]
V/s.
The State of Maharashtra ]
at the instance of Mandrup Police Station ]
District: Solapur ].... Respondent
WITH
CRIMINAL APPEAL NO.292 OF 2008
The State of Maharashtra ] Appellant
V/s
1. Ravi Bhauraya Kolule ]
age: 26 years. ]
]
2. Narayan Bhauraya Kolule ]
age: 45 years, ]
]
3. Tatya Bhauraya Kolule ]
age: 56 years ]
1
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]
4. Shrimant Ranbha Lade ]
age: 54 years, ]
]
5. Shiv Shrimant Lade ]
age: 22 years ]
]
6. Bharat Shrimant Lade ]
age: 20 years ]
]
7. Siddhappa Bhima Lade ]
age: 46 years ]
]
8. Balu Pandurang Lade ig ]
age: 40 years ] .. Respondents
] Ori.accused
9. Prabhakar Balu Lade ] Nos 1 to 15
age: 19 years ]
]
10. Shankar Ganappa Lade ]
age : 45 years, ]
]
11. Mhalappa Kashiram Lade ]
age: 32 years ]
]
12. Vitthal Genappa Lade ]
age: 60 years (abated) ]
]
13. Sanjay Mahadev Lade ]
age: 31 years ]
]
14. Gajanan Mahadeo Lade ]
age: 21 years ]
]
15.Mahadev Ganappa Lade ]
age: 55 years ]
]
accused Nos 1 to 12 are agriculturists ]
and r/o Nimbargi, Tal. South Solapur ]
]
2
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J APEAL 482 OF 2007.doc
accused Nos 13 to 15 are ]
r/o Vinchur, Tal. South Solapur ]
District: Solapur ]
Mr. Girish R. Agarwal, for the appellants in Appeal No.482 of
2007 and for respondent Nos 1 to 11 and 13 to 15 in Criminal
Appeal No.292 of 2008.
Mr. A.S. Shitole, APP for the Respondent-State in Criminal Appeal
No.482 of 2007 and for appellant State in Criminal Appeal
No.292 of 2008.
CORAM : SMT. V.K. THILRAMANI ACTING CJ &
DR. SHALINI PHANSALKAR-JOSHI, J.
CLOSED FOR ORDER : 20th NOVEMBER, 2015.
PRONOUNCED ON: 30th NOVEMBER, 2015
JUDGMENT : [Per : Dr. Shalini Phansalkar-Joshi, J.]
1. Both these appeals are arising out of one and the
same judgment and order dated 20th April, 2007, in Sessions
Case No.233 of 2005, by the learned Additional Sessions Judge,
Solapur. Hence they are being decided by this common
judgment. By the impugned judgment, the original accused No.1
Ravi and accused No.7 Siddhappa were convicted for the offence
punishable under Section 302 read with 34 of the Indian Penal
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Code and sentenced to suffer imprisonment for life and to pay
fine of Rs.1,000/- each in default to suffer simple imprisonment
for three months. They were also convicted alongwith original
accused No.13 Sanjay and accused No.14 Gajanan, for the
offence punishable under Section 323 read with Section 34 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for three months and to pay fine of Rs.200/- each
in default to suffer simple imprisonment for two weeks. Being
aggrieved by the said judgment, original accused No.1 Ravi and
accused No.7 Siddhappa have preferred Criminal Appeal No.482
of 2007 challenging their conviction and sentence whereas the
State has preferred Criminal Appeal No.292 of 2008, challenging
the acquittal of original accused Nos 1 to 15 for the offences
punishable under Sections 147, 148, 325, 302 read with section
149 of the Indian Penal Code.
2. Brief facts of both these appeals can be stated as
follows :-
P.W.2 Laxman and Shankar were the real brothers
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interse. Prabhavati was the daughter of Shankar and was given
in marriage with one Siddharam Shegaonkar. He had expired
about 10 years prior to the incident leaving behind his widow
Prabhavati and son Mahesh as his only legal heirs. Sundarabai
the sister of deceased Siddharam, was given in marriage to
accused No.4 Shrimant Lade. After the death of Siddharam,
partition was effected in the landed property left behind by him
at village Kalagi.
ig In the said partition 74 acres of agricultural
land was given to Mahesh and Prabhavati; whereas 21 acres of
agricultural land was given to Sundarabai the wife of accused
No.4 Shrimant Lade. Accused No.4 was not happy with the said
partition and demanded more share to Sundarabai. Therefore,
there was quarrel and disputes between prosecution witnesses
and the accused persons.
3. On 10.5.2005, at about noon time P.W.2 Laxman and
his brother Shankar asked, Ramrao the son of accused No.4
Shrimant Lade, as to why they were opposing the mutation of
name of Mahesh and Prabhavati to revenue record of the
agricultural land even after partition. At that time altercation
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took place between P.W.2 Laxman and Ramrao the son of
accused No.4 Shrimant Lade. Both of them filed cross complaints
against each other at Mandrup Police Station in connection
therewith. Police called both the parties to come again to police
station on the next day in the morning at 11.00 a.m.
4. However, on the same night at about 7.00 p.m. when
P.W.2 Laxman, his brother Shankar and his nephew P.W.4
Shrikant were returning to village Nimbargi from the police
station alongwith deceased Siddharam and P.W.5 Raosaheb on
two motorcycles. When they reached at S. T. stand of Nimbargi,
near panshop of one Babulal Inamdar, accused Nos 1 to 15 were
present, armed with knife, sticks and stones. They pulled P.W.2
Laxman, his brother Shankar and deceased Siddharam from
motorcycle and assaulted them by sticks and stones. P.W.3
Jagdeo and Sharanappa who were present there tried to
intervene and rescue P.W.2 Laxman, Shankar and the deceased
Siddharam from the assault. However, due to assault by the stick
and stones on the head, chest, back and other vital parts of the
body, deceased Siddharam, Shankar and P.W.2 Laxman
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sustained serious injuries. After assault, accused persons left the
spot whereas P.W.2 Laxman and other injured approached
Mandrup police Station. Therefrom they were referred to Civil
Hospital for medical treatment.
5. On 11.5.2005 P.W.11 ASI Bansode recorded the
complaint of P.W.2 Laxman and on his complaint Exh.34
registered C.R.No.24 of 2005. On the same day, he visited the
spot of incident and drew scene of offence panchanama Exh.27.
Further he arrested in all 13 accused on that day and handed
over further investigation of the case to P.W.13 API Kadam. He
has recorded statement of witnesses and arrested the remaining
accused. Meanwhile on 12.5.2005, injured Siddharam
succumbed to injures. Hence charge was altered to section 302
read with section 149 of the Indian Penal Code. As a part of
further investigation, the clothes of the accused came to be
seized under panchanama Exh.44 on 20.5.2005. During custodial
interrogation of the accused No.7 Siddhappa, three sticks and
one stone came to be seized at his instance, under panchanama
Exh.47 under Section 27 of the Evidence Act. The seized
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Muddemal articles including the clothes of accused were sent to
Chemical Analyzer. Chemical Analyzer's reports are at Exh. 66 to
83. On completion of investigation P.W. 13 API Kadam filed
chargesheet in the Court against in all 15 accused and a
separate chargesheet against one juvenile in conflict with law.
6. On committal of the case to the Sessions Court, the
trial Court framed charge against accused vide Exh.3. Accused
pleaded not guilty and claimed trial, raising defence of false
implication on account of strained relations. Specific plea is
raised that while witnesses and deceased Siddharam were
returning on motorcycle from Mandrup Police station, they met
with an accident in which they had sustained injuries and only to
harass the accused false case is filed against them.
7. In support of its case, prosecution examined in all 13
witnesses and relied mainly on the evidence of four eye
witnesses viz P.W.2 Laxman, P.W.3 Jagdeo, P.W.4 Shrikant and
P.W.5 Raosaheb. Out of them, P.W.2 Laxman and P.W.4 Shrikant
were also injured in the said incident. On appreciation of their
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evidence as aforesaid, the trial Court was pleased to convict
accused Nos 1 and 7 for the offence punishable under Section
302 read with Section 34 of the Indian Penal Code. They were
also convicted for the offence under Section 323 read with
Section 34 of the Indian Penal Code,alongwith accused Nos 13
and 14. It appears that as accused Nos 13 and 14 were given
set off for the period which they have already undergone in jail,
they have not preferred any appeal challenging their conviction.
Only accused Nos 1 and 7 have preferred appeal which is
countered by the State with separate appeal challenging
acquittal of these accused and remaining accused, for the
offence punishable under Section 302 read with Section 149 of
the IPC.
8. In this appeal, we have heard Mr. Girish R. Agarwal,
learned counsel for the appellant accused and Mr. A. S. Shitole,
learned APP for the State.
9. In our considered opinion, before adverting to the
rival submissions advanced at bar by both, it would be useful to
refer to the evidence on record.
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10. To prove homicidal death of Siddharam, the
prosecution has examined P.W.10 Dr. Keskar, who was attached
to Government Hospital at Solapur and has conducted
postmortem on the dead boy of Siddharam on 13.5.2005. On
examination, he found following external injures :-
1. Surgical drainage wound present on chest, left
side on anterior axillary line 4 x 3 cm depth 2
cm.
2. Abrasion in front of right ear between right ear
and right eye 2 x 1 cm.
3. Incised wound on left fore arm on lateral aspect
10 cm from elbow, 2 x 1 cm depth, 2 cm.
4. Abrasion on right fore arm 13 x 1 cm.
5. Abrasion on right arm just above elbow 4 x 3 cm.
6. Abrasion on right arm midshaft 1 x 1 cm.
7. Contused wound on right arm 25 x 13 cm.
8. Abrasion on left parietal region of head 3 x 2 cm.
On internal examination, he noted Corresponding internal
injury like abrasion on right parietal region admeasuring 3cm x 2
cm with haematoma . Further he noticed fracture on 5 th, 6th, 7th
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ribs of right side and 10th, 11th, and 12th, ribs of left side.
11. According to him the cause of death was fracture of
ribs with haemotoma. He further opined that these injuries were
antemortem in nature and sufficient in the ordinary course of
nature to cause death. He has further stated that these injuries
were on vital parts of the body and are possible due to forcible
blow given by hard and blunt object or sharp edge weapon like
sword or knife. The Muddemal article Nos 19 and 22 the sticks
and stone, recovered in the course of investigation were shown
to him. He has opined that the injuries sustained by the
deceased are possible by these weapons also. Though this
witness is cross-examined at length, nothing worthwhile is
elicited in his cross examination to challenge his evidence or to
discredit him. The fact that the deceased Siddharam has
succumbed to the injuries sustained in the assault is thus
proved on record. No suggestion is put up to Doctor that these
injuries are possible in the accident of motorcycle, which is the
defence taken up by the accused. No material to that effect is
elicited from cross examination of this witness.
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12. For proving involvement of accused in the incident of
assault, the prosecution case relies on the evidence of four eye
witnesses viz P.W.2 to 5. As noted above out of them two are
injured in the assault. The evidence of P.W.2 Laxman, P.W.4
Shrikant and P.W. 5 Raosaheb is thoroughly consistent, uniform
and certain to the effect that as a result of earlier incident which
had taken place in the morning, they had gone to Mandrup Police
Station to lodge complaint. While they were returning on their
motorcycles, they reached near panshop of one Babu Inamdar.
The accused persons were gathered there with weapons like
sticks and stones in their hands and seeing these witnesses, they
pulled P.W.2 Laxman, P.W.4 Shrikant and P.W.5 Raosaheb from
their motorcycles, caused them to fall down and started
assaulting them with sticks and stones in their hands. P.W. 2
Laxman has deposed that accused were beating him, his brother
Shankar (not examined by the prosecution), deceased
Siddharam and P.W.4 Shrikant. As both Shankar and Siddharam
fell down on the ground, due to assault, the accused thought
that they were dead. Therefore, accused ran away from the spot.
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In the assault, he was also beaten by hand blows and stick blows
due to which he sustained injuries on his back and waist.
Deceased Siddaram sustained injuries on his head, chest and
other parts of the body. Both Shankar and Siddaram were
unconscious. They were subsequently shifted to the Hospital.
13. The evidence of P.W. 4 Shrikant goes to prove that
while they were
returning on motorcycle from police station,
they reached at Panshop of one Babu Inamdar, accused
obstructed them with weapons in their hands. Accused No.13
Sanjay pulled down the leg of deceased Siddharam. As a result
Siddharam and P.W.5 Raosaheb fell down from the motorcycle.
All the accused persons started beating them with sticks and
stones. He himself and P.W.5 Raosaheb rescued themselves and
went at some distance. He saw that his brother Shankar had also
sustained injuries on his stomach, face and chest due to assault
and had become unconscious. According to him, accused No.1
Ravi assaulted deceased Siddharam with knife. Accused No.1
Ravi had also lifted one stone to assault Siddharam. However,
accused No.7 Siddhappa took the said stone from the hands of
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accused No.1 Ravi and assaulted Siddharam with the said stone
on his chest. As a result, Siddharam sustained injuries on his
head, chest, face leg and became unconscious. As accused
thought that P.W.2 Laxman and Siddharam were dead, they ran
away from the spot. This witness has also spoken about the
presence of P.W.3 Jagdeo at the spot of incident. It may be true
that an omission is elicited in his cross examination that he has
not stated before police, accused No.1 Ravi assaulted the
deceased Siddharam with knife; omission being only in respect
of knife. But then there is no improvement as to assault made by
accused No.1 Ravi on deceased and evidence of P.W.10 Dr.
Keskar and postmortem notes Exh.53 prove incised wound on
left forearm of deceased.
14. P.W.5 Raosaheb was also in the same group which was
returning from police station on motorcycle with injured and the
deceased. He has deposed about accused persons obstructing
him and others, pulling them from the motorcycle and beating
Siddharam and other witnesses. According to him he tried to
intervene, but it was of no use. Accused No.7 Siddhappa sat on
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the body of deceased Siddharam and assaulted him with stone.
The only ground on which his evidence is challenged is that his
statement was recorded by police on 30.5.2007, about 20 days
after the incident. In our considered opinion on the count of
delay in recording his statement, even if his evidence is excluded
from consideration, it will not make much difference to
prosecution case as there is evidence of three other eye
witnesses on record.
15. Lastly there is evidence of P.W.3 Jagdeo, who had also
gone to Mandrup police station on that day with other witnesses.
According to him, as only two motorcycles were available, he
returned to village by bus alongwith Mahesh. He left Mahesh at
his house and proceeded to Nimbargi bus stand. There
Sharanappa told him that accused were beating Shankar and
others. Hence he rushed to the spot which was near bus stand
and saw that the accused were having sticks, stones and knives
and were beating Shankar, deceased Siddharam, P.W.2 Laxman
and P.W.4 Shrikant. According to him, accused No.7 Siddhappa
bet Siddharam on his chest with stone by sitting on his body. Due
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to the assault deceased Siddharam, P.W.2 Laxman and Shankar
sustained injuries. Thereafter they were shifted to the hospital.
16. All these four witnesses are cross examined
extensively, to point out some interse contradictions and
omissions in their evidence. In our considered opinion, when 15
to 16 persons are assaulting to 5 to 6 persons simultaneously,
then in such a melee, parrot like version of the witnesses cannot
be accepted. There is bound to be some variance in their
evidence especially when each witness is looking at the incident
from different angles. Moreover, out of these four witnesses,
P.W.2 Laxman was injured in the same incident; whereas P.W.4
Shrikant and P.W.5 Raosaheb were making attempt to rescue the
injured and the deceased. Naturally their evidence cannot be
ditto word to word, As to alleged omissions, they might not have
been in a position to state before the police all the minor details
of the incident immediately after the incident when their
statements came to be recorded. Those details, if given in
evidence before in such circumstances cannot be branded as
omissions or improvements made by them. Their evidence is
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consistent about assault made by the accused, specific role is
attributed by P.W.4 Shrikant to accused No.1 Ravi of making
assault by knife on deceased Siddharam and then lifting the
stone and accused No.7 assaulting deceased with the said stone
on his chest. P.W.3 Jagdeo and P.W. 5 Raosaheb have also
attributed specific role to accused No.7 of beating Siddharam by
stone sitting on his chest. Hence as regards accused Nos. 1 & 7,
there is clinching evidence on record of actually committing
murderous assault on the deceased. Their evidence is also
supported with medical evidence. On the body of deceased one
incised wound, caused by sharp edged weapon like knife and
four to five abrasions were found, with fracture of about 6 ribs
which ultimately has resulted into his death, coupled with
haematoma on the head.
17. P.W.6 Dr. Madhusudan Gunhalkar, attached to Civil
Hospital, Solapur who has rendered immediate medical
treatment to P.W. 2 Laxman and P.W.4 Shrikant, has stated that
on that night at about 11.25 p.m. these witnesses were referred
by Medical Officer, Rural Hospital Mandrup. P.W.4 Shrikant was
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having following injuries.
1) extensive bruises over back
2) tenderness over right angle of mandible
3) scalp haematomma, 3 x 2 cm in size over right occipital
region of head.
4) bruise 3 x 2 cms, over posterior aspect of scalp.
According to him, those injuries were caused by light and
blunt object . The injury certificate is produced at Exh.41.
He has also examined Shankar and found following injuries
on his person. Shankar, however, is not examined by the
prosecution.
1) altered blood clots over both nostrils
2) tenderness over left mamary region of chest
3) abrasion 2 x 2 ½ cm over right upper eyelid on lateral
aspect.
18. Further there is also corroborating circumstantial
evidence which is recovery of stone and sticks at the instance of
accused No.7 Siddhappa. The memorandum Exh.47 is proved
through the evidence of P.W.8 Gangadhar and Investigating
Officer P.W.13 PI Kadam. Accused No.7 has then guided police
and panchas to the place where he has hidden these articles and
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produced them which came to be seized under panchanama
Exh. 47A. The Chemical Analyzer's reports prove presence of
human blood stains on the stone though the results of blood
grouping are inconclusive which may be for several reasons. As
to non recovery of knife, once the evidence of eye witnesses is
believed upon, it does not affect prosecution case as such.
19.
The submission of learned counsel for appellants is
that all the witnesses in this case are closely related and
interested one. Hence reliance cannot be placed on their
evidence in the light of some improvements made by them. To
substantiate his submissions, learned counsel has relied upon
several authorities like :-
I) Gurdial Singh -vs- State of Punjab, AIR 1994 SUPREME
COURT 1072.
II) B. BN. Singh -vs- Stateof Gujarat, AIR SUPREME
COURT 1628.
III) Badruddin Rukonddim Karpude -vs- State of
Maharashtra, AIR 1981 SUPREME COURT 1223.
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IV) Pandit Ram Prakash Sharma -vs- Kharaiti Lal AIR
1998 SUPREME COURT 2820.
V) Kalyan -vs- State of U.P. AIR 2001 SUPREME COURT
3976.
According to him reliance cannot be placed on the evidence
of these witnesses considering family feud actuating interest in
falsely implicating accused and subsequent improvements made
by them.
However, we are not inclined to accept the
submission. The law is fairly well settled that merely because
witnesses are relatives or family friends of the deceased and the
injured, their evidence should be discarded altogether. The law
only expects the Court to subject their evidence to careful
scrutiny. As a matter of fact relatives are the last persons to
allow an innocent person to be convicted and guilty persons to
escape from clutches of law. Here in this case, the presence of
these witnesses is natural and proved on record because as per
admitted facts, all these witnesses were returning on their
motorcycles from police station to their village. Some
contradictions or improvements, as stated above, are bound to
occur in the testimony of any truthful witness. Instead of creating
suspicion about the credibility of such witnesses on that count,
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they give inbuilt guarantee of their trustworthiness. In our
considered opinion, therefore, as to the involvement and guilt of
accused No.1 Ravi and accused No.7 Siddhappa, there is
clinching evidence on record.
20. The next submission of learned counsel for accused is
that the case of accused No. 1 Ravi and accused No.7 Siddhappa
needs to be brought under Section 304 part II of IPC. However,
in our considered opinion, in order to bring the case of accused
Nos 1 & 7 under Section 304 part I or II of IPC, it must fall under
any one of the Exceptions to section 300 of the IPC. Though
learned counsel for accused has relied upon Exception (iv) of
section 300 IPC, we are afraid that case of accused cannot fall
under the said Exception also. For, in order to attract Exception
(iv) to section 300, offence should have been committed without
premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue
advantage or acted in cruel or in an unusual manner.
The facts of the present case do not disclose that any of
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these ingredients of Exception (iv) to section 300 IPC are
satisfied. It was neither a sudden fight without premeditation
nor assault is made in the heat of passion. The evidence on
record proves that it was a pre-planned attack. The accused
were waiting at the panshop for the deceased where the injured
witnesses were to come there on their way from the police
station to their village. Accused were also armed with the
weapons like knives, sticks and stones. It was not a case of
sudden quarrel or sudden fight. The injured and deceased
witnesses were unarmed. There is no evidence of even quarrel
much less sudden quarrel. The accused launched an assault on
the injured and deceased with weapons in their hands, the
moment they saw them on the motorcycle. The evidence on
record proves that assault is committed by weapon like knife and
stone that too on vital part of the body like chest and head.
There are three, injuries on the chest, out of which one was
incised wound and it has resulted in the fracture of six ribs.
Hence one can gauge the gravity of the assault. There was
abrasion on left and right parietal region which resulted into
haematoma to the right parietal region. Therefore, it also cannot
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be said that the offence was committed without the accused
having taken advantage or acted in a cruel or unusual manner. In
such situation, the benefit of Exception (iv) to section 300 IPC
cannot be extended to accused Nos 1 & 7.
21. In ultimate analysis, we are of opinion that the
prosecution has proved its case against accused Nos 1 & 7
beyond reasonable doubt for the offence punishable under
Section 302 and 323 read with section 34 of the Indian Penal
Code. Hence the appeal preferred by them needs to be
dismissed.
22. As regards the appeal preferred by the State,
challenging the acquittal of these accused and other accused for
the offences punishable under Sections 302 read with section
149 of IPC, needless to say that the evidence on record does not
attribute specific incriminating role to the acquitted accused.
Therefore, their mere presence on the spot even if held to be
proved, at times may not be sufficient to convict them with the
aid of section 149 of the IPC. Hence the trial Court has extended
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benefit of doubt to them.
23. While sitting in appeal against the acquittal, our
scope of interference in the said finding of the trial Court is
limited to the extent that we can set aside the said finding only
if it is found to be perverse. Having regard to the totality of
evidence on record, considering large number of accused
involved in the case and the evidence against those accused
being of a general and omnibus nature, we are of the opinion
that the findings recorded by the trial Court on this aspect
cannot be called as perverse so as to warrant interference
therein. As a result, the appeal preferred by the State against
acquitted accused also deserves to be dismissed.
24. In consequence Criminal Appeal No.482 of 2007
preferred by accused No.1 Ravi and accused No.7 Siddhappa
stands dismissed, confirming their conviction and sentence.
Criminal appeal No.292 of 2008 preferred by the State also
stands dismissed.
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25. Accused No.7 Siddhapa is in jail whereas accused No.
1 Ravi is on bail, hence the bail bonds of the accused No.1 Ravi
Bhauraya Kolule stand cancelled. He shall surrender before the
learned Sessions Judge within a period of 12 weeks from the date
of this order, failing which the learned Sessions Judge shall take
steps to arrest him to serve the remaining sentence.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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CERTIFICATE
Certified to be true and correct copy of the
original signed judgment.
