Bombay High Court
The State Of Maharashtra vs Datta Kishan Bismille And Others on 7 April, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 619 OF 2012
WITH
CRIMINAL APPEAL NO. 679 OF 2012
WITH
CRIMINAL APPEAL NO. 151 OF 2013
WITH
CRIMINAL APPEAL NO. 162 OF 2013
WITH
CRI. REVISION APPLICATION NO. 210 OF 2012
* * * * * * * *
CRIMINAL APPEAL NO. 619 OF 2012
1 Datta s/o Kishan Bismille, APPELLANTS
Aged 55 years
2 Rama s/o Kishan Bismille,
Aged 40 years
3 Ganpati s/o Kishan Bismille,
Aged 45 years
4 Laxman s/o Kishan Bismille,
Aged 35 years
5 Madhav s/o. Kishan Bismille,
Aged 33 years
6 Budhaji s/o Kishan Bismille,
Aged 50 years
All Occupation Agriculture
and R/o Village Bondhar,
Taluka and District Nanded
V E R S U S
The State of Maharashtra, RESPONDENT
Through Limbgaon Police
Station, Taluka and District
Nanded
Mr. R.N. Dhorde, Sr. Counsel i/b. Mr. V.R. Dhorde, Advocate for
the appellants.
Mr. S.P. Sonpawale, A.P.P. for respondent/State.
Mr. M.V. Ghadge h/f. Mr. B.N. Gadegaonkar, Advocate to assist
A.P.P.
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WITH
CRIMINAL APPEAL NO. 679 OF 2012
1 Devidas Potlaji Wadde, Aged 45 APPELLANT
years, Occupation Agriculture,
R/o. Bondhar (Nerli), Taluka &
District Nanded
V E R S U S
1 The State of Maharashtra, RESPONDENTS
through Limbgaon Police
Station, Taluka and District
Nanded
2
3
Datta s/o Kishan Bismille,
Aged 55 years.
Rama s/o Kishan Bismille, Aged
40 years,
4 Ganpati s/o Kishan Bismille,
Aged 45 years,
5 Laxman s/o Kishan Bismille,
Aged 35 years,
6 Madhav s/o. Kishan Bismille,
Aged 32 years,
7 Budhaji s/o Kishan Bismille,
Aged 50 years,
8 Khandu s/o Budhaji Bismille,
Aged 27 years,
9 Govind s/o Ganpati Bismille,
Aged 24 years,
10 Pandit s/o Ganpati Bismille,
Aged 25 years,
11 Purushottam s/o Datta
Bismille, Aged 24 years,
Respondent Nos. 2 to 11
Occupation Agriculture, R/o.
Bondhar, Taluka and District
Nanded
Mr.M.V. Ghadge h/f. Mr. B.N. Gadegaonkar, Advocate for
appellant.
Mr.S.P. Sonpawale, A.P.P. for respondent/State.
Mr.R.N. Dhorde, Sr. counsel i/b. Mr. V.R. Dhorde, Advocate for
respondent Nos. 2 to 11.
WITH
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CRIMINAL APPEAL NO. 151 OF 2013
1 Datta s/o Kishan Bismille, Aged APPELLANTS
55 years,
2 Budhaji s/o Kishan Bismille,
Aged 50 years,
3 Laxman s/o Kishan Bismille, Aged
35 years,
4 Rama s/o Kishan Bismille, Aged
40 years,
5 Ganpati s/o Kishan Bismille,
Aged 45 years,
6 Madhav Kishan Bismille, Aged 33
years,
All Occupation Agriculture, R/o.
Bondhar, Taluka and District
Nanded
V E R S U S
1 Devidas s/o Potlaji Wadde, Aged RESPONDENTS
35 years,
2 Dharba s/o Potlaji Wadde, Aged
40 years,
3 Maroti s/o Potlaji Wadde, Aged
50 years,
4 Baliram s/o Potlaji Wadde, Aged
56 years,
5 Madhav s/o Chandu Wadde, Aged 22
years,
6 Santosh Chandu Wadde, Aged 20
years,
7 Venkati s/o Chandu Wadde, Aged
23 years,
8 Ramchandra Chandu Potlaji, Aged
25 years,
Respondent Nos. 1 to 8
Occupation Agriculture, R/o.
Bondhar, Taluka and District
Nanded
9 The State of Maharashtra
Mr. R.N. Dhorde, Sr. Counsel i/b. Mr. V.R. Dhorde, Advocate for
the appellants.
Mr. M.V. Ghadge h/f. Mr. B.N. Gadegaonkar, Advocate for
respondent Nos.1 to 8.
Mr. S.P. Sonpawale, A.P.P. for respondent/State.
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WITH
CRIMINAL APPEAL NO. 162 OF 2013
. The State of Maharashtra, through APPELLANT
Police Limbgaon, Taluka and
District Nanded
V E R S U S
1 Datta s/o Kishan Bismille, Aged RESPONDENTS
50 years,
2 Rama s/o Kishan Bismille, Aged
35 years,
3 Ganpati s/o Kishan Bismille,
Aged 40 years,
4 Laxman s/o Kishan Bismille, Aged
5
30 years,
Madhav s/o Kishan Bismille, Aged
28 years
6 Budhaji s/o Kishan Bismille,
Aged 45 years,
7 Khandu s/o Budhaji Bismille, Aged
22 years,
8 Govind s/o Ganpati Bismille, Aged
19 years,
9 Pandit s/o Ganpati Bismille, Aged
20 years,
10 Purushottam s/o Datta Bismille,
Aged 19 years
All Occupation Agriculture, R/o
Bondhar, Taluka and District
Nanded
Mr.S.P. Sonpawale, A.P.P. for appellant/State.
Mr.M.V. Ghadge h/f. Mr. B.N. Gadegaonkar, Advocate for
respondent No.1 to 6.
Mr.R.N. Dhorde, Sr. Counsel i/b. Mr. V.R. Dhorde, Advocate for
respondent Nos.7 to 10.
WITH
CRIMINAL REVISION APPLICATION NO. 210 OF 2012
. Devidas s/o Potlaji Wadde, Aged APPLICANT
45 years, Occupation
Agriculture, R/o. Bondhar
(Nerli), Taluka and District
Nanded
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V E R S U S
1 The State of Maharashtra, RESPONDENTS
through Limbgaon Police Station,
Taluka and District Nanded
2 Datta s/o Kishan Bismille, Aged
50 years,
3 Rama s/o Kishan Bismille, Aged
40 years,
4 Ganpati s/o Kishan Bismille,
Aged 45 years,
5 Laxman s/o Kishan Bismille,
Aged 35 years,
6 Madhav s/o Kishan Bismille,
Aged 32 years
7 Budhaji s/o Kishan Bismille,
Aged 50 years,
8 Khandu s/o Budhaji Bismille,
Aged 27 years,
9 Govind s/o Ganpati Bismille,
Aged 24 years,
10 Pandit s/o Ganpati Bismille,
Aged 25 years,
11 Purushottam s/o Datta Bismille,
Aged 24 years
Respondent Nos. 2 to 11
Occupation Agriculture, R/o
Bondhar, Taluka and District
Nanded
Mr. M.V. Ghadge h/f. Mr. B.N. Gadegaonkar, Advocate for the
applicant.
Mr. S.P. Sonpawale, A.P.P. for respondent/State.
Mr. R.N. Dhorde, Sr. Counsel i/b. Mr. V.R. Dhorde, Advocate for
respondent nos. 2 to 7.
CORAM : A.V. NIRGUDE &
INDIRA K.JAIN,JJ.
RESERVED ON : 15.02.2016
PRONOUNCED ON : 07.04.2016
J U D G M E N T : [PER : A.V. NIRGUDE,J.] :-
1. All these appeals/revision can be disposed of
by this common judgment. These proceedings arise from
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judgments and orders passed by the learned Additional
Sessions Judge, Nanded, in Sessions Case No.19 of 2007
and Sessions Case No.23 of 2010. In Sessions Case No.
19 of 2007, Datta Bismille and his nine companions
were accused. In Sessions Case No.23 of 2010, Devidas
Wadde and his eight companions were accused. Both
these cases arose out of one incident of rioting etc.
that took place on 15th July, 2006, at about 3.15
p.m., in land Survey No. 14 of village Bondhar, Taluka
and District Nanded. Most of the accused in both these
cases sustained injuries. One Chandu Wadde
subsequently died due to multiple injuries which he
had sustained during the incident.
2. After trials of both Sessions cases the
learned Judge convicted accused Nos.1 to 6 of Sessions
Case No.19 of 2007 for the offences punishable under
Sections 147, 148, 323, 324, 326, 304 Part-II read
with Section 149 of the Indian Penal Code. They were
also convicted for the offence punishable under
Section 135 of the Bombay Police Act. Accused Nos.7 to
10 were acquitted. On the other hand, all the accused
in Sessions Case No.23 of 2010 were acquitted.
(i) As against the conviction, accused Nos. 1 to
6 in Sessions case No.19 of 2007 have filed Criminal
Appeal No.619 of 2012.
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(ii) As against the judgment in Sessions Case
No.19 of 2007, the State of Maharashtra has filed
Criminal Appeal No.162 of 2013. It sought conviction
of all accused for offence punishable under sections
302 & 307 read with 149 of the I.P.C.
(iii) Criminal Appeal No.679 of 2012 is filed by
complainant Devidas against judgment in in Sessions
Case No.19 of 2007
(iv)
Datta and others, complainants & victims in
Sessions case No.23 of 2010 also filed Criminal Appeal
No.151 of 2013 against acquittal of all accused in
Sessions Case No.23 of 2010.
(v) Criminal Revision Application No.210 of 2012
is filed by complainant in Sessions case No.19 of 2007
seeking enhancement in sentence awarded to the accused
Nos.1 to 6.
3. Submissions for all the appeals/revision are
heard together. The facts leading to this case can be
narrated as under and the parties to these proceedings
are referred to by their status in lower Court.
4. Land Survey No.14 (disputed land), situated
at village Bondhar belonged to one Kisan Satwaji
Arate. He sold this land to Rama Bismille (accused
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No.2 in S.C.No.19 of 2007) and Madhav Bismille
(accused Nos.5 in S.C.No.19 of 2007), in August, 2004.
Devidas (accused No.1 in Sessions case No.23 of 2010)
and his family members, who are other accused were
keenly interested in buying this land from Kishan
Arate. They claimed that Kishan had given this land to
them for cultivation long back in exchange of their
land at village Pardi. According to them, there was
barter deal between them and Kishan. They also
asserted that they were in settled possession of the
disputed land. But, admittedly no revenue record could
be shown in support of their claim of possession and
cultivation. They felt aggrieved due to the sale
transaction. Soon after the sale-deed was executed,
Devidas Wadde (accused No.1 in S.C.No. 23 of 2010) and
others filed a civil suit against Kishan Arate, Rama
Madhav Bismille for getting the sale-deed executed in
their favour cancelled. They also claimed that they
were in possession of the land and their possession
should be protected by an order of temporary
injunction. The Civil Court, however, rejected their
application for temporary injunction. The Civil Court
obviously accepted the probability of the case of Rama
and Madhav Bismille (accused Nos.2 & 5 in S.C.No.19 of
2007), the purchasers, that they are in possession of
the land etc.
5. Despite the fact that sale-deed took place in
2004, yet, application for mutation entry in revenue
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record filed by Rama and Madhav Bismille (accused Nos.
2 & 5 in S.C. No.19 of 2007) remained pending and
their names were not mutated as cultivators of land
till July, 2006, when the incident took place. There
was no documentary proof coming from Revenue
Department indicating that either Ram and Madhav
Bismille (accused Nos.2 & 5 in S.C. No.19 of 2007) on
one hand or Devidas Wadde (accused No.1 in S.C. No. 23
of 2010) and his brothers on the other hand were
cultivating land and were in settled possession. The
only document that existed then was the sale-deed
executed in favour of Ram and Madhav Bismille (accused
Nos.2 & 5 in S.C.No.19 of 2007). The other
circumstance in their favour was that till July, 2006
they could resist a suit filed by Devidas Wadde
(accused Nos.1 in S.C. No.23 of 2010) and others for
injunction etc. In this background, one must
appreciate the facts of this case. The allegations are
made by both the sides against each other.
6. First we would take a bird's eye view of
evidence in Sessions Case No.19 of 2007.
6-i. Devidas Wadde is the complainant and P.W.1 in
Sessions Case No.19 of 2007. He stated that he had
five brothers namely; Chandu, Sambhaji, Maroti,
Baliram and Dharba. He added that Chandu had two
grown-up sons namely; Santosh and Venkati (during the
pendency of the Sessions Case, one brother by name
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Sambhaji died). Wife of Devidas was Kuntabai and his
mother's name was Gangabai. Devidas reiterated that
since last 20 years, there was barter deal between his
family and Kishan Arate, who was son of his paternal
aunt. Devidas asserted that they had a piece of land
at village Pardi. This was given for cultivation to
Kishan Arate. In exchange, Kishan Arate gave his land
Survey No.14 of village Bondhar to him for
cultivation. He admitted that there was no
documentation of this transaction. He said, this was
based on oral agreement. Devidas then admitted that
Kishan Arate sold Survey No.14 of village Bondhar to
Rama and Madhav Bismille. He said that, despite the
sale-deed, he and his brothers continued cultivation
of the land. He also admitted that the dispute in
respect of the land survey No.14 had reached Civil
Court.
. He said that about 4 to 5 days prior to 15 th
July, 2006, he and his brothers cultivated the
disputed land with hybrid jowar.
. At about 03.15 to 03.30 p.m. on 15 th July,
2006, while he was at home in village Bondhar,
Chandu's son Santosh came to him and informed that
Datta, his five brothers i.e. Rama, Ganpati, Laxman,
Madhav and Budhaji (accused in sessions case No. 19 of
2007) and others had come to the disputed land in a
tractor. They were armed with sticks, iron bar and
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axes. Hearing this, Devidas, his brothers and their
sons proceeded to the disputed land. He obstructed
Datta and others from sowing seeds in the disputed
land. But, Datta and others started assaulting them
with sticks and axes. Due to the assault, he sustained
fracture injuries on both his hands and an injury on
his head. He said that Madhav (accused No.5) and Datta
(accused No.1) delivered blow of axe on his head. He
further mentioned that his companions Sambhaji,
Maruti, Baliram, Dharba, Ramchandra, Venkat, Madhav,
Santosh and Chandu also sustained injuries due to the
assault. He said that Chandu sustained more injuries
and fell unconscious. His mother Gangabai tried to
intervene and wanted to save him and other from the
assault. His mother sustained a blow of axe on her
head. His wife Kuntabai also tried to intervene and
was also assaulted. She sustained a blow of stick on
her knee.
6-ii. P.W.2 is Kuntabai, wife of P.W.1 Devidas. She
stated that she and her mother-in-law were working in
her agricultural land where sugarcane crop was
standing. Chandu and Santosh were present in the same
field. At that time accused Nos.1 to 9 (S.C. No.19 of
2007) came there with others in a tractor. They were
also armed with sticks, iron bar and axes. They
started sowing jute seeds in the disputed land. They
also disturbed the cultivation made earlier in the
disputed land utilizing tractor. Seeing this she sent
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Santosh to the village. Santosh came back with
Devidas, Maruti, Sambhaji, Arjun, Venkati and
Ramchandra. She said that she and others then tried
to convince accused No.1 to 9 not to disturb sowing in
the field. The accused then started assaulting
Devidas, his brothers and nephews. Ganpat (accused
No.3) dealt a stick blow on her knee. She suffered
fracture injury to her knee. She also stated that she
sustained one blow of stick on her head. She said
that accused Nos.1, 2 and 6 had axe in their hands and
others were having sticks and iron bars.
6-iii. P.W.6 is Madhav. He said that on 15.07.2006
the incident took place. He said that he was present
in his house. At about 03.00 p.m. he came to know that
quarrel took place between members of Bismille family
and Wadde family in agricultural land. He, therefore,
went to Police Patil's House and gave information to
him. Police Patil asked him to go further and assured
him that he would come after him. Thereafter, he and
other two witnesses went to the disputed land and
found that persons were gathered there. He saw members
of Wadde family had sustained bleeding injuries. He
also noticed Chandu was lying down in injured
condition. He saw that accused No.2-Ram, accused No.
6-Budhaji and accused No.1-Datta had axe in their
hands. He saw that these persons were assaulting
Chandu with axe and were asking him whether he wanted
the disputed land. He also noticed that Chandu's
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mother fell on his person to shield him from the
assault. He also noticed that wife of Devidas, namely,
Kuntabai had also sustained injury by stick on her
legs and hands.
6-iv. P.W.9 is one Baban who stated that before the
incident deceased Chandu had sown seeds in the
disputed land. On the day of incident he said that he
was working in agricultural land of one Dattapure. He
said that he saw Dattu, his son Madhav, Santu and two
women working in the field. He said that at that time
all accused came in tractor and trolley. They started
sowing the field which was already sown by deceased
Chandu. At that time Santosh went to village and came
back with all his uncles and brothers. All of them
then argued with the accused. Thereafter, quarrel took
place between both these groups. He said that Chandu
sustained injuries all over his body. His mother and
brother's wife also sustained injuries. He did not
give details of the incident.
6-v. P.W.10 is Maruti who is one of the injured in
this case. He said that at about 03.00 p.m. while he
was at his village, his nephew Santosh came and told
him that accused Datta and others had disturbed crops
in disputed land. He said that he, his brothers
Sambhaji, Baliram, Dharba, Devidas went to the
disputed land. He said that they all told Datta and
others not to destroy the crop etc. He said that the
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accused assaulted them with stick, iron bar and axe.
He specifically mentioned that accused No.6 delivered
one blow of axe on his head. He sustained bleeding
injury on his head. He also added that accused No.1
Datta, Madhav and Ram delivered stick blows and iron
bar blows on his back. He fell down. He also added
that accused No.1-Datta, accused No.6-Budha and
accused No.2-Rama delivered sticks and axe blows on
Chandu's person. Chandu sustained number of injuries
all over his body. He then said that accused No.1
Datta, accused No.2-Rama, accused No.6-Budhaji and
others assaulted Sambhaji, Baliram, Dharba, Devidas,
Kuntabai and Gangabai. They used sticks, axes and
iron bars. He said that Madhav, Deorao and Baban came
and rescued him and others. Thereafter, accused left
the land. He said that he was then taken to hospital.
This witness pin-pointedly assigned role to accused
Nos.1, 2, 5 and 6 who delivered blows on his person.
He then added that accused Nos.1, 2, and 6 delivered
blows of axe, sticks etc. on the person of Chandu and
others. He said that Chandu sustained grievous
injuries and subsequently died in the hospital.
6-vi. P.W.11 is Dharba. He said that on the day of
incident he was at his house. At about 02.45 p.m.
Santosh came to call him. Santosh told him that
accused were destroying hybrid jowar sown by them in
the disputed field. He said that he tried to request
the accused not to disturb their field. He said that
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accused then started to beat them with axe, sticks and
iron bars. He specifically mentioned that accused No.2
Rama and accused No.10 Purushottam delivered blows of
sticks on his head and back. He sustained injuries.
He said that accused No.2-Rama, accused No.1-Datta and
accused No.6-Budhaji delivered blows of axe on
Chandu's person. Chandu fell down after he sustained
injury on head, hands and legs. Chandu's mother
Gangabai tried to shield Chandu from the assault but
accused No.1-Datta delivered one blow of axe on
Gangabai's head. She sustained bleeding injury on her
head. Accused No.2-Rama then gave blow of axe on the
left leg of Kuntabai, due to which she sustained
fracture injury. This witness tried to give more
details in respect of the incident.
6-vii. P.W. 12 is Santosh. He said that on
15.07.2006 he was present in his field. At that time
the accused came there and started to sow disputed
field which was already sown by them. His father-
Chandu told him to go to village and call his uncles
and brothers and thereafter he went to village and
called them. He said that all his uncles, brothers
and cousins came to the disputed land. Accused then
started assault with sticks, iron bars and axes. He
specifically mentioned that accused No.6-Budhaji
delivered a blow of axe on right side of his leg.
Accused No.4-Laxman delivered a blow of stick on his
hand and legs. He said that he sustained bleeding
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injury on his head. He then added that accused No.6
Budhaji, accused No.2-Rama and accused No.1-Datta
gave blows of axe on the person of Chandu who
sustained number of injuries all over of his body.
Accused No.1-Datta gave one blow of axe on the hands
of his grand-mother Gangubai. Accused No.3-Ganpati
gave one blow of stick on right leg of Kuntabai. She
suffered injury on her leg. He said that his uncles
also sustained bleeding injuries but he did not
mention as to who delivered blows on their person
except what is stated above.
6-viii. P.W.13-Madhav stated that he was present in
disputed land on 15.07.2006. At about 02.45 p.m.
accused came there with axes, sticks and iron bars,
travelling in a tractor. They started destroying the
crop sown by them. He said that he sent his nephew
Santosh to the village. His brothers and uncles came
with him. He said that accused No.6-Budhaji delivered
axe blow on his head. He sustained bleeding injury.
He said that accused No.4-Laxman and accused No.5-
Madhav used sticks on his back, hands and legs. He
stated that accused No.2-Rama, accused No.6-Budhaji
and accused No.1-Datta delivered axe blows on Chandu-
his father. His father sustained injuries on his
person. His grand-mother also sustained injuries.
Accused No.6-Budhaji delivered axe blow on her head.
Accused No.3-Ganpati delivered a stick blow on
Kuntabai, who suffered fracture.
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6-ix. Witness No.3 is one Deorao. At the relevant
time he was Police Patil of the village. He said that
at the time of incident he was in his house. He said
that he heard shouts and saw that some persons were
running towards the disputed land. He said that he
also went to the spot. When he reached the spot, he
said that the incident was already over. He said that
he then helped the injured persons including Chandu
and in a bullock-cart brought them to hospital. He
saw Chandu lying on the ground. He also added that he
saw accused Nos.1-Datta, accused No.2-Rama & accused
No.6-Budhaji present near Chandu who was lying on the
ground. He also saw accused Nos.7-Khandu & accused
No.8-Govind present on the spot. He added that he
also saw injuries on persons of Maruti, Dharba,
Baliram, Devidas, Venkati, Madhav & Santosh. This
witness apparently did not state that he witnessed the
assault taking place.
6-x. P.W.4 is Kishan Shinde. He is a Panch
witness of scene of offence Panchanama. He said that
on 16.07.2006 he went to the disputed land alongwith
police for drawing panchanama. He said that he saw
sticks lying in the land. He also noticed some
bloodstained soil. He said that Police took in charge
the bloodstained soil and sticks. The panchanama of
scene of offence indicated that the land was of black
cotton soil and certain agricultural work was already
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done there. There were nine sticks stained with blood.
6-xi. P.W.5 is Vasant Rathod. He attended inquest
panchanama of dead body.
6-xii. P.W. No.7 is Dr.Shubhangi, who stated that
on 15.07.2006 while she was on duty in casualty ward
of Civil Hospital, she examined Gangabai, Deorao,
Sambhaji and others. She gave details about the
injuries they had sustained. She also admitted that
on the very same day, she examined accused Nos.1 to 6
and issued certificates in respect of the injuries
sustained by them also.
6-xiii. P.W. 8 is Dr.Subhash Deshmukh. He gave
details of injuries suffered by witness Devidas and
others.
7. The gist of prosecution evidence in Sessions
Case No.23 of 2010 can be stated as under :-
7-i. P.W.1 is Datta, the complainant, who is also
accused No.1 in Sessions Case No. 19 of 2007. He
stated that after his brothers purchased the disputed
land, Devidas and others started disputing as to why
they had purchased the land. On 15.07.2006 at about
3.30 p.m., he was in the disputed land and was sowing
boru crop using a tractor. His brothers Budhaji,
Ganpati, Rama, Laxman, Madhav and nephews Pandit and
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Khandu were also present. At that time accused in
Sessions Case No.23, namely, Sambhaji, Maroti,
Baliram, Devidas, Ramchandra, Venkati, Santosh and
Madhav came with sticks, axes and iron rods. They
stopped their sowing operation. They said, why Datta
had purchased the land. They started beating them with
sticks, axes and iron rods. Budhaji, Laxman, Ganpat,
Rama, Madhav and Khandu sustained injuries on their
heads, hands and legs. He sustained injury on head by
stick blow. He took his injured brothers to Pasadgaon
by a tractor and thereafter his brothers were taken to
Government Hospital, Nanded. He lodged complaint.
7-ii. Second eye witness is P.W.2-Madhav Bismile,
who stated similarly about the incident that took
place on 15.07.2006 at about 3.15 p.m. He also
reiterated that what is stated and noted above by
witness Datta. In addition, he specifically stated
that accused No.1-Devidas, accused No.6-Madhav,
accused No.7-Santosh and accused No.9-Ramchandra
caused injuries to his head, leg, finger of left hand
using stick and iron road. While incident was going
on villagers - Baban, Deorao, Madhav, Kerba came there
and tried to intervene. They took injured persons to
village Pasadgaon, using a tractor. From there the
injured were taken to Civil Hospital, utilizing auto-
rickshaws. P.W.2 was treated in the hospital for about
2-3 days.
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7-iii. Third eye witness is P.W.3-Rama Bismile, who
also reiterated what is stated by P.W.1-Datta. He
stated that his companions Datta, Khandu, Madhav,
Laxman, Purshottam, Govind, Pandit and Budhaji
sustained injuries. He stated that he sustained
injuries on the hands by accused No.2-Dharba, accused
No.8-Venkati and accused No.9-Ramchandra. They
delivered blows of axe on his head and all over his
body etc. He sustained injuries and was taken to
hospital.
7-iv. P.W.4-Ganpati was the next eye witness, who
also stated about the incident that took place on
15.07.2006 at about 3.15 p.m. He specifically
mentioned that accused No.8-Venkati and accused No.4-
Baliram delivered blows of sticks and axe on his
person. He sustained bleeding injuries. He was taken
to hospital.
7-v. P.W.5-Laxman also reiterated more or less in
similar fashion. He specifically mentioned that he was
beaten by accused No.7-Santosh, accused No.8-Madhav,
accused No.2-Dharba. He sustained injuries to his
head and right hand fingers. He was then taken to
hospital.
7-vi. P.W.6-Budhaji also reiterated what is stated
above. He in particular stated that Chandu (deceased),
accused No.9-Ramchandra and accused No.1-Devidas used
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sticks, iron road and axe to beat him. He sustained
injuries and was taken to hospital.
7-vii. P.W.7-Khandu reiterated as to how the
incident tok place on 15.07.2006 at about 3.15 p.m.
He mentioned specifically that accused No.5-Sambhaji
and accused No.2-Dharba assaulted him with stick and
iron rod. He sustained injuries and was sent to
hospital.
7-viii.
In both these cases, in addition to these eye
witness account in Sessions Case No.23 of 2010, the
prosecution also examined Medical Officer P.W.8-
Dr.Shubhangi Karadkhedkar, who stated that she
examined witnesses Laxman, Datta, Rama, Budhaji,
Ganpat, Madhav and Khandu. She mentioned that witness
- Laxman sustained three injuries. All of them were
caused by sharp weapon. Witness Datta, according to
her, sustained one injury on his head caused by hard
object. Witness Rama sustained injury on his head
caused by hard and sharp weapon. He was admitted to
hospital. Witness Budhaji sustained four injuries.
Out of them, three were on his head. These injuries
were caused by sharp weapon. One injury was on index
finger, which was caused by hard weapon. Witness
Ganpat suffered one injury on his head. Witness Madhav
suffered two injuries on his head and two injuries on
his limbs. Witness-Khandu suffered one injury on his
head.
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7-ix. The prosecution also recorded deposition of
P.W.11-Deorao, who stated that the incident took place
on 15.07.2006 at about 2.30 p.m. He was in the
village at that time and as soon as he came to know
that there occurred some incident, he went to the
disputed land. He noticed that beyond river the
disputed land was situated and two groups were having
fight. He also noticed that one Baban was trying to
intervene and pacify the members of quarreling groups.
He further mentioned that members of both the parties
sustained injuries. He further mentioned that he did
not notice that as to who assaulted whom.
7-x. P.W.12 is Baban. He stated that the incident
took place on 15.07.2006 at about 3.30 p.m. He was
working in his field, which was situated near the
disputed land. He saw that witness-Datta came in the
field and started sowing boru utilizing tractor. At
that time there occurred some quarrel. At that time
accused No.2-Baliram, deceased-chandu, accused No.3-
Maruti, accused No.2-Dharba and accused No.7-Santosh
came there. They obstructed Datta's tractor. There
occurred some talk between them. Thereafter, there
was fight. He did not see as to who particularly beat
or assaulted whom. Deceased-Chandu and one old woman
fell down due to the assault. He went to the spot.
He also saw witness Dattu, Budhaji, Ganpat and Rama on
the spot.
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8. Learned Judge of the Lower Court upheld the
defence of accused in Sessions Case No.23 of 2010 that
they were in settled possession of the disputed land
and that accused in sessions Case No.19 of 2007
assaulted them with deadly weapons. They retaliated
and tried to protect themselves. They thus acted in
self-defence at the time of incident, whereas the
accused in Sessions Case No.19 of 2007 were
aggressors. They committed criminal trespass and then
caused injuries and also death of one of the victims.
The learned Judge of Lower Court acquitted the accused
in Sessions Case No.23 of 2010, as said above and
convicted six accused in Sessions Case No.19 of 2007.
9. We have heard submissions at length. We also
perused the judgment as well as evidence, which came
on record. We are required to decide following
questions.
9-i. First question is - Who was in settled
possession of the disputed land? Both the sides
asserted that they were in settled possession and they
were trying to protect the same at the time of
incident. We do not accept both these contentions. On
one side, Datta Bismille and his brothers (accused in
Sessions Case No.19 of 2007) have claimed title to the
disputed property. But, we are not inclined to hold
that they had settled possession of the disputed land.
24 crap619.12+
There is nothing on record to show that they
cultivated the land from 2004 onwards. On the other
hand, Devidas Wadde and his brothers do not even have
title to the land. They pleaded a case of barter etc.
with Kishan Arate. But, there is no documentary proof
for such arrangement/agreement. All that they have is
depositions of prosecutions witnesses, who stated that
they knew that Devidas and his brothers have
cultivated this land. We do not give any importance to
such depositions. People in villages tend to lie on
such issues. That is why in our Country we have
strong Revenue Record system and we depend on the
entries in it. In absence of revenue record we reject
case of possession of Devidas and his brothers.
9-ii. We also take note of the fact that though
Datta Bismille and his brothers could purchase the
disputed land, they could not enter in the same prior
to 15th July, 2006 most probably because of rival claim
of Devidas Wadde and his strong brotherhood. Both
these groups consisted of six brothers on each side.
These brothers in turn have several grown-up children.
They both thus formed strong groups having almost
equal muscle power. A tension between such groups
would certainly lead to physical violence. We hold
that both the groups were in the process of seizing up
strength of the opponents and were making preparation
to invade the disputed land and hold on to it despite
resistance. Each group wanted to establish dominion on
25 crap619.12+
the land in dispute. So both the groups would fail in
their attempt to establish that they were exercising
right of private defence.
9-iii. Second question of our consideration is -
(i)whether all the accused in both the Sessions Cases
formed unlawful assembly and attacked each other? (ii)
If the answer is in affirmative whether the attacks
were simultaneous or whether any one group was
aggressor?
9-iv. The first precipitative action took place 4-5
days prior to the date of incident. Ganpati and his
brothers entered the disputed land and sown hybrid
jawar. This was apparently an overt act on their part.
We believe that part of their case, though we strongly
reject their case of settled possession. In
retaliation to it on 15th July,2006, Datta Bismille and
his brothers and nephews launched their aggression.
This time, they went to the disputed land armed with
weapons as well as tractor for tilling. As soon as
they entered the land, they started use of tractor for
tilling. This part of the case is almost admitted by
both the sides. This was an unexpected move. Devidas
and his brothers were caught unaware. They were not
prepared for this aggression. But within few minutes,
all of them gathered and arrived at the disputed land.
The first question that we asked ourselves is, with
what preparation Devidas and his brothers and nephews
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would arrive at the disputed site? They already knew
that Datta and others had come there with weapons like
sticks, axes and iron bar. So, it was natural for them
to come there equally prepared. We have no hesitation
to hold that Devidas and his brothers were also armed
with similar weapons. Looking to the muscle power of
both the groups, this was the beginning of armed
conflict. dmittedly within few minutes of altercation,
both the groups started assaulting each other. The
prosecution witnesses have clearly stated so. In the
melee almost all sustained injuries. Most of the
injuries were sustained on heads. Most of the injuries
looking to the dimension indicated that sticks and
similar objects were utilized as weapons. There was
even possibility of use of axes from blunt side. (In
some cases sharp aged weapons were also used. But,
the injuries caused by them were simple in nature.)
10. In view of this, we have no hesitation to hold
that all accused in both these cases formed unlawful
assemblies and attacked each other almost
simultaneously. Strength of both sides was almost
equal. This eruption of violence was not unexpected
but was almost a sudden occurrence. Both the groups
were equally prepared. In the heat of passion, it soon
became a free fight. Both sides resorted to violence
but did not act in cruel manner. Number of persons
from both sides suffered injuries.
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11. List of injuries suffered by both the sides
is given under for comparison :-
1. Gangabai Potlaji Wadde
i.CLW on right parietal area on scalp - 4 x 1 cm simple in nature caused
by rough and hard object.
2. Sambhaji Potlaji Wadde
i.CLW - 4 x ½ cm on right parietal area caused by rough and hard object.
ii.Fracture of acromion process of scapular left. Grievous in nature.
iii.Fracture of 3rd and 4th rib posteriorly on right side - grievous in
nature - caused by rough and hard object.
iv.Fracture lower 1/4th ulna right.
3. Ramchandra Chandu Wadde
i.Contusion 3 x 4 cm simple type, caused by hard and blunt weapon.
ii.Contusion 12 x 2 cm on left thigh caused by hard and blunt object of
simple type.
iii.Contusion 4 x 1 cm on left forearm caused by hard and blunt object
of simple type.
iv.Contusion 3 x 1 cm on back caused by hard and blunt object of simple
type.
4. Kuntabai Devidas
i.Contusion 2 x 2 cm on forehead right side caused by rough and hard
object.
ii.Linear Fracture of patella caused by rough and hard object, grievous
in nature.
5. Devidas Potlaji Wadde
i.CLW over occipital region 2"x1/2"upto bone, caused by hard and blunt
object.
ii.Contusion over right elbow joint slight swelling 2" x 1" caused by
hard and blunt object.
iii.Contusion over right palm, dorsal side 1" x 1" caused by hard and
blunt object simple in nature and
iv.Contusion over left palm (dorsal side) 2" x 1" caused by hard and
blunt object.
6. Madhav Chandu Wadde
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i.CLW over occipital region 3" x ½" upto bone, caused by hard and blunt
object.
ii.Contusion over back (oblique in direction) 3" x 2", caused by hard
and blunt object.
iii.Contusion over left thigh (lateral aspect) 4" x 2", caused by hard
and blunt object, simple in nature.
7. Santosh Chandu Wadde
i.CLW over right parietal area 3" x ½ x up to bone, caused by hard and
blunt object.
ii.Contusion over left side of back 5" x 2" (oblique in direction)
caused by hard and blunt object.
8. Dharba Potlaji Wadde
i.CLW over right forehead 2 x ½" upto bone, caused by hard and blunt
object.
ii.CLW over occipital area 2" x ½" up to bone, caused by hard and blunt
object.
iii.CLW over parietal area 3" x ½" up to bone, caused by hard and blunt
object.
iv.Abrasion over right hand right finger ½" x ¼", caused by hard and
blunt object.
v.Contusion over left calf area (left leg) 3" x 3", caused by hard and
blunt object.
vi.Contusion over left shoulder and swelling 2"x2",caused by hard and
blunt object.
vii.CLW over left forehead, 2" x 2" upto bone, caused by hard and blunt
object.
9. Maroti Potlaji Wadde
i.CLW over occipital region 3" x 1" x upto bone, caused by hard and
blunt object.
10. Baliram Potlaji Wadde
i.CLW over right frontal region 1" x ½" x upto bone.
ii.Contusion over right forearm, swelling at lower side 3" x 2".
iii.Contusion over left thigh (lateral aspect) 4" x 3".
iv.Abrasion over occipital region 1" x ½"
v.CLW over right palm with fracture of 1st meta carpal bone 2" x 1".
vi.CLW over right ankle joint 3" x 2" upto bone.
vii.Contusion over left knee joint, swelling plus 4" x 3".
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viii. Contusion over back 4" x 3".
11. Injuries of Chandu the deceased are as under:-
i.Swelling over right temporal region and occipital region, spread over
6 x 4 cm and 14 x 5 cm respectively.
ii.Healed abrasion with blackish scab present over superior aspect of
right shoulder 4 x 3 cm, right arm laterally over upper third spread
over 3 x 2 cm.
iii.Contusion over right arm over middle third region antero laterally
spread over 8 x 3 ½ cm.
Medical Officer also fond fracture right humerus, right tibia,
fibula, left radious-ulna.
On internal examination he found following injuries.
Under scalp, haematoma in right temporalist muscle and over
occipital region, brownish black about 6 x 3 cm and 12 x 4 cm
respectively. There was fissure fracture of the base of skull in right
middle cranial fossa, extending to pituitary fossa. Extra vassation are
seen. The meninges were congested and intact. There was hemorrhagic
contusion to right cerebellar hemisphese on ventral aspect.
12. Laxman Kishanrao Bismille
i.CLW three number each measuring 4x1 cm on parieto occpital region
right side.
ii.CLW 4 x 1 cm. on left parieto occipital region and
iii.CLW 2 in number 6 x 1 cm and 3 x 1 cm on left parietal region
13. Datta Kishanrao Bismille.
i.CLW measuring 1 x 1 cm on right parietal area.
14. Rama Kishanrao Bismille
i.CLW measuring 3 x 1 cm. and 4 x 1 cm on top of ventex.
15. Budhaji Kishanrao Bismille
i.CLW measuring 15 cm x 2 cm on head parietal area right side.
ii.CLW measuring 1 x ½ cm on right index finger.
iii.CLW two in number 7 x 1 on left parietal area.
iv.CLW 6 x 1 cm and 4 x 1 cm on right parietal area.
16. Ganpati Kishanrao Bismille
CLW measuring 7 x 1 cm on left parietal area.
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17. Madhav Kishanrao Bismille
i.CLW measuring 5 x 1 cm on occipital region.
ii.CLW measuring 7 x 1 cm on right parietal region.
iii.Contusion measuring 2 x 2 cm on left leg lower 1/3.
iv. CLW measuring 2 x ½ on right index fingure.
18. Khandu Budhajirao Bismille
i. CLW 6 x 1 cm on top of vertex.
12. On comparison of number and nature of
injuries found on the person of the victims, it is
clearly indicated that members of Devidas's group
sustained more injuries. On the other hand Datta and
six others from his group sustained injuries, which
were mostly simple in nature. It can, therefore, be
said that the attack of members of Datta's group was
more fierce compared to the attack of group belonging
to Devidas. But the description of the incident given
by eye witnesses belonging to group of Devidas does
not indicate that members of group of Datta targeted
any one or two members of group of Devidas utilizing
more power and indicating cruelty.
13. We have, therefore, no hesitation to hold
that members of both these groups were members of
unlawful assembly with deadly weapon and all of them
used force and violence. All the accused in both cases
have committed offence of rioting with deadly weapons.
They should be convicted for offences under Sections
143,144 & 148 of the Indian Penal Code.
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14. The third question that arises for our
consideration is - what was the common object of both
these assemblies? From the evidence on record, it can
safely be said that the common object of unlawful
assemblies was to cause injuries to their opponents.
Looking to the nature of injuries caused to witnesses
in Sessions Case No.19 of 2007, we have no hesitation
to hold that the common object of unlawful assembly of
Datta (accused in Sessions Case No.19 of 2007) and his
associates was to cause grievous injuries to their
victims and to deter them from cultivation of disputed
land.
15. On the other hand, the common object of
unlawful assembly formed by Devidas (accused in
sessions Case No.23 of 2010) and his associates was to
cause simple injuries to their opponents and to stop
them from cultivating disputed land.
16. The fourth question required to be asked is,
whether Datta and others - accused in sessions case
No.19 of 2007 had common object of causing death of
the opponents? The answer has to be in negative.
17. Chandu, the injured victim, who ultimately
succumbed to death, had suffered five injuries. All
of them were grievous in nature. He suffered fractures
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of bones of both the limbs. In addition, he also
sustained two injuries on his head. His death
occurred after nine days from the incident. All that
we can say is that the common object of Datta and his
unlawful assembly was to cause grievous hurt to
Chandu.
18. The learned Judge of the Lower Court held
that they did not commit murder but committed culpable
homicide not amounting to murder. It is caused under
exception (4) of Section 300 of the Indian Penal Code.
All ingredients of exception (4) of Section 300 of the
Indian Penal Code are clearly established in this
case.
19. As said above, there was strong reason for
both the parties to attack each other. Sudden fight
took place and in the heat of passion injuries were
caused to the deceased. But it does not appear that
Datta and others targeted Chandu by cornering him. It
does not appear that they had taken undue advantage of
their position. It is not the prosecution case that
before the Chandu's brothers Devidas and others came
on the spot, they caught Chandu unprepared and
attacked him. The prosecution witnesses stated that
the armed struggle started only after Devidas and his
brothers reached the disputed spot and in the melee,
injuries were caused.
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20. We therefore, hold that accused Nos.1 to 6 in
Sessions Case No. 19 of 2007 could be held guilty for
the offence punishable under Section 304 Part-II read
with Section 149 of the Indian Penal Code. We are
inclined to accept the argument that other accused
Nos.7 to 10 should also be convicted for similar
offence. The learned Judge of the Lower Court analyzed
the evidence quite painstakingly and held that accused
No.7 onwards were present but were silent spectators.
We do not wish to disturb the said finding. On the
other hand, we are inclined to hold that accused
Devidas Wadde and seven others could be convicted for
the offences punishable under Sections 323, 324 read
with Section 149 of the Indian Penal Code and other
allied offences like rioting.
21. The gist of above discussion can be
summarized as under :-
Sessions Case No.19 of 2007.
I. Accused Nos. 1 to 6 were members of
unlawful assembly.
II. The prosecution further proved
against them that accused Nos. 1 to 6 were
members of unlawful assembly in prosecution
of the common object of the assembly.
34 crap619.12+
III. The prosecution could further prove
that accused Nos.1 to 6 voluntarily caused
simple hurt to complainant - Devidas.
IV. The prosecution could also prove
that accused Nos.1 to 6 in furtherence of
their common object caused grievous hurt to
their victim.
V. ig The prosecution could also prove
that the accused Nos. 1 to 6 in furtherence
of their common object, caused culpable
homicide not amounting to murder of their
victim - Chandu.
Sessions Case No. 23 of 2010.
I. On the other hand, the prosecution
proved that accused Nos. 1 to 9 were members
of unlawful assembly.
II. The prosecution could also prove
that being members of such unlawful assembly,
accused Nos. 1 to 9 were also armed with
deadly weapons.
III. The prosecution could further prove
that they in furtherence of their common
object, caused simple hurt to the complainant
and other witnesses by means of sticks, axe,
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iron bar etc.
22. In view of above conclusions Criminal Appeal
No. 151 of 2015 filed against the order of acquittal
in Sessions Case No. 23 of 2010 would succeed partly.
23. We would now consider as to whether accused
Nos.1 to 6 in Sessions Case No. 19 of 2007, who were
sentenced to suffer rigorous imprisonment for seven
years for offence punishable under section 304 Part-II
read with section 149 of the Indian Penal Code, which
is longest term of sentence awarded to them deserves
any leniency. They are in custody since 2012. We are
of the view that the period of imprisonment they have
undergone so far would be sufficient sentence for
offence punishable under section 304 Part-II read with
section 149 of the Indian Penal Code. Obviously,
therefore, they also deserve reduction in the length
of sentence awarded to them. For offence punishable
under section 326 read with 149 of the Indian Penal
Code, earlier they were sentenced to suffer rigorous
imprisonment for four years and to pay a fine of
Rs.1000/- each. We reduce this sentence to a period
of two years and fine of Rs.1000/-, in default,
rigorous imprisonment for six months. We do not
intend to make change in the length of sentence
awarded to them for offence punishable under section
324 read with section 149 of the Indian Penal Code and
other sentences awarded to them for offence punishable
36 crap619.12+
under sections 323 & 324 both read with section 149
and sections 147 & 148 of the Indian Penal Code.
24. As said above, accused in Sessions Case No.
23 of 2010 also deserve to be convicted for offence
punishable under sections 147 & 148 and 324 read with
section 149 of the Indian Penal Code. However, we are
not inclined to send them back to jail. We sentence
them to the term of imprisonment which they have
already undergone while in custody pending the trial.
25. In the result, we pass following order :-
O R D E R
(A) Criminal Appeal No. 619 of 2012 is
partly allowed.
(A-i) The conviction of appellants/accused
Nos.1 to 6 in Sessions Case No. 19 of 2007 is
not disturbed for offence punishable under
section 304 Part-II read with section 149 of
the Indian Penal Code, but their sentences
are modified. They are sentenced to suffer
rigorous imprisonment for the period which
they already undergone in jail with fine of
Rs.1000/- (Rupees One Thousand) each, in
default, to suffer rigorous imprisonment for
one year.
are convicted for the offence punishable
under section 326 read with section 149 of
the Indian Penal Code and sentenced to suffer
rigorous imprisonment for two years and to
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pay a fine of Rs.1000/- (Rupees One Thousand)
each, in default, to suffer rigorous
imprisonment for six months.
(A-iii) Rest of the conviction and sentence
shall remain unchanged.
(A-iv) All the sentences shall run
concurrently.
(A-v) In case, fine is deposited by the
appellants/accused Nos.1 to 6, they be
released from custody, if not required in any
other case.
(B)
Criminal Appeal No.162 of 2013 filed
by the State is dismissed.
(C) Criminal Appeal No.679 of 2012 filed
by complainant-Devidas against judgment in
Sessions Case No.19 of 2007 is also
dismissed.
(D) Criminal Appeal No. 151 of 2013
filed against acquittal of all accused in
Sessions Case No.23 of 2010 is partly
allowed.
are convicted for the offence punishable
under sections 147, 148 and 324 read with 149
of the Indian Penal Code. They are sentenced
to suffer rigorous imprisonment for the
period which they have already undergone in
the custody during the trial for all the
offences proved against them.
are not sentenced to pay any fine.
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(D-iii) Their bail bonds stand cancelled.
(E) Criminal Revision Application No.
210 of 2012 filed against judgment in
Sessions Case No.19 of 2007 seeking
enhancement in sentence is also dismissed.
[INDIRA K. JAIN, J.] [A.V. NIRGUDE, J.]
snk/2016/FEB16/crap619.12+
