Vilas Shravan Patil vs The State Of Maharashtra And Ors
2016 Latest Caselaw 4087 Bom

                                           apl_32_2014 & 732_!3.doc

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION




                                                                      
                      CRIMINAL APPEAL NO.32 OF 2014
    The State of Maharashtra                 ...Appellant




                                              
                         Versus




                                             
    1.Deepak Parshuram Patil                ...Respondents
    Age 35 years, occu. Service.

    2.Praveen Parshuram Patil 




                                         
    Age 28 years, occu. Service.

    3.Dayanad Parshuram Patil
                                
    Age 32 years, occu. Service.
                               
    4.Kishor Parshuram Patil 
    Age 36 years, occu. Service.
      

    5.Prakash Parshuram Patil 
    Age 40 years, occu. Agriculture.
   



    6.Pradeep Parshuram Patil
    Age 28 years, occu. Service.





    7.Pratap Vithoba Patil
    Age 26 years, occu. Service.

    All r/o. Village Patnoli, Taluka-
    Panvel, District-Raigad 





                                      ...
                     CRIMINAL APPEAL NO.732 OF 2013
    Vilas Shravan Patil                      ...Appellant


                         Versus


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    1.The State of Maharashtra
    (At the instance of Senior Inspector 




                                                                            
    of Police, Panvel Town Police 
    Station vide their FIR No.276 of 




                                                    
    2009)

    2.Deepak Parshuram Patil,
    Age 38 years, occu. Service.




                                                   
    3.Praveen Parshuram Patil,
    Age 31 years, occu. Service.




                                         
    4.Dayanand Parshuram Patil,
    Age 35 years, occu. Service.
    5.Kishor Parshuram Patil,
    Age 39 years, occu. Service.
                               
    6.Prakash Parshuram Patil,
    Age 43 years, occu. Agriculture
      


    7.Pradeep Parshuram Patil,
    Age 38 years, occu. Service.
   



    8. Pratap Vithoba Patil,
    Age: 29 years, Occ: Service,





    (Nos.1 to 7 residing at Village 
    Patnoli, Taluka-Panvel, District              ...Respondents
    Raigad.
                                    ...
    Mr. H.J. Dedia, A.P.P. for the Appellant-State. 





    Mr.   Nitin   Sejpal   with   Mrs.   Pooja   Sejpal   for   original 
    complainant and for the Appellant in Appeal/732/2013.
    Mr. Nishigandh N. Patil for Respondent Nos.1 to 7.


                           CORAM : SMT. V.K.TAHILRAMANI &
                                          SMT. ANUJA PRABHUDESSAI, JJ.

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RESERVED ON:11th APRIL, 2016

PRONOUNCED ON :25th JULY, 2016

JUDGMENT (PER ANUJA PRABHUDESSAI, J.).

These appeals are directed against the judgment

and order dated 10th May, 2013 in Sessions Case No.59 of

2010 whereby the learned Addl. Sessions Judge-1, Raigad,

District Alibag, acquitted the aforesaid Respondents /accused

for offences punishiable under sections 307 r/w. 149, 323 r/w

149, 143, 144, 147, 148 and 504 of the IPC and under section

37(1), 135 of the Bombay Police Act.

2. The case of the prosecution in brief, is that on

5.7.2009 PW2-Sujit Patil and some other boys were playing

cricket on the school ground of village - Patnoli. PW1- Vilas

Patil, PW3-Sandeep Patil and PW4- Kashinath Patil were

sitting by the road and watching the cricket match. It is

alleged that the accused No.1 Deepak Patil and his brother

Anil got down from Safari vehicle and came to the school

ground and started abusing PW2-Sujit Patil and others.

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Thereafter the accused left the place of the incident and

returned with other accused, who were armed with weapons

such as hockey sticks, sword, lathi, etc. The accused assaulted

the complainant and his brothers PW2-Sujit Patil, PW3-

Sandeep Patil, PW4-Kashinath, etc. As a result, the

complainant and others sustained grievous injuries and they

were taken to Government Rural Hospital.

3.

PW10-Prakash Patil, PSI, who was informed about

the incident had visited Gandhi Hospital where the accused

were admitted. He recorded statement of Deepak Patil (A1),

pursuant to which he registered Crime No.275 of 2009 for

offences under 302, 307, 326, 325, 324, 504, 143, 144, 147,

148 and 149 of the IPC and under section 37(1), 135 of the

Bombay Police Act and under sections 4 and 25 of the Indian

Arms Act against the complainant PW1- Vilas Patil, PW2-Sujit

Patil and others (accused in C.R. No.275 of 2009). While

PW10- Prakash Patil, PSI learnt that the accused in C.R.

No.275 of 2009 were also injured and were admitted in

Purohit Hospital. He visited Purohit Hospital. Accordingly he

recorded the statement of PW1-Vilas Patil pursuant to which

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Crime No.276 of 2009 against aforesaid Respondents came to

be registered for offences under sections 307, 323, 504, 143,

144, 147, 148 and 149 of the IPC and under section 37(1),

135 of the Bombay Police Act.

4. PW10-Prakash Keshav Patil, PSI visited the place

of the incident and conducted the scene of offence

panchanama and seized the incriminating material lying at

the place of the incident. He recorded the statement of the

witnesses, arrested the accused and on completion of

investigation filed the charge sheet before the JMFC, Panvel.

The case being sessions triable was committed to the Sessions

Court, Raigad and registered as Sessions Case No.59 of 2010.

5. It is to be noted that the Crime No.275 of 2009

was also investigated and charge sheet was filed against PW1-

Vilas Patil, PW2-Sujit Patil, PW3-Sandeep Patil, PW4-

Kashinath Patil and others for forming unlawful assembly and

committing murder of Anil, attempting to commit murder of

Manohar and for causing injuries to Deepak, Pravin, and

others and thereby committing offences under sections

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Sections 143, 144, 147, 148, 302 r/w. 149 of the Indian Penal

Code. The said case was committed and registered as

Sessions Case No.134 of 2009. The prosecution had adduced

evidence in both cases. By judgment dated 10th May, 2013 the

learned Judge convicted the accused in Sessions Case No.134

of 2009 arising from C.R. No.275 of 2009. By the judgment

of the same date the learned Judge acquitted the accused in

Sessions Case No.59 of 2010 arising from C.R. No.276 of

2009. The judgment in Sessions Case No.134 of 2009 has

been challenged by the accused in Criminal Appeal No.667 of

2013 and 668 of 2013 whereas the judgment of acquittal in

Sessions Case No.59 of 2010 was challenged by the State as

well as the complainant by filing the present appeals.

6. The learned APP Mr. Dedia has submitted that the

evidence of injured witnesses viz. PW1-Vilas Patil, PW3-

Sandeep Patil and PW4-Kashinath Patil which is corroborated

by the medical evidence proves that the accused

/Respondents herein had inflicted serious injuries on PW1-

Vilas Patil, PW3-Sandeep, PW4-Kashinath Patil and others.

He has submitted that the prosecution has established that

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after the initial altercation the Respondent No.1 and the

deceased Anil had left the place of the incident and returned

to the place of the incident with others armed with deadly

weapons such as swords, hockey sticks, lathi, etc. and

assaulted the complainant and the other injured prosecution

witnesses. He has submitted that the evidence adduced by

the witnesses amply proves that the Respondents were

aggressors and they had come to the place of the incident

with a common object of inflicting injuries on PW1-Vilas,

PW4-Kashinath and others. He has submitted that it was not

a case of free fight and that the learned Trial Judge could not

have discarded the case of the prosecution and disbelieved the

testimony of the injured witnesses merely because some of the

Respondents/accused had sustained injuries.

7. The learned APP has further submitted that the

learned Trial Judge also could not have discarded the

evidence of these injured witnesses on the basis of minor

omissions or variations. He has submitted that the

prosecution had established the guilt of the accused beyond

reasonable doubt and the learned Trial Judge has erred in

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giving benefit of doubt to the accused.

8. The learned counsel for the Respondents has

submitted that evidence on record amply proves that PW2-

Sujit and other injured prosecution witnesses had inflicted

severe injuries on Anil and had thereby committed his

murder. He has further submitted that PW1-Vilas Patil and

PW2- Sujit Patil and other prosecution witnesses were

aggressors and that they had also inflicted serious injuries on

Manohar and other Respondents herein. He has submitted

that the prosecution witnesses have not explained the injuries

sustained by the Respondents and deceased Anil and Manohar

and had thus suppressed the genesis of the incident. He has

submitted that the learned Trial Judge was therefore, justified

in acquitting the accused.

9. We have perused the records and considered the

submissions advanced by the learned counsels appearing for

the respective parties.

10. At the outset it may be mentioned that while

acquitting the accused the learned Trial Judge has held that

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the prosecution has failed to establish that the Respondent

No.1 and his brother Anil had gone to the village after the

initial altercation and that they had returned with other

accused armed with weapons. The learned Trial Judge has

further held that there are material omissions, variations and

improvements in the prosecution case. The learned Trial

Judge has further held that the Respondents had also

sustained injuries, which are not explained by the

prosecution. The learned Trial Judge has held that the

injuries on the person of PW1-Vilas Patil and PW4-Kashinath

Patil were not grievous or life threatening. The injuries

sustained by PW3-Sandeep and Alpesh were also minor

injuries. The learned Judge has held that the prosecution has

failed to establish that the Respondents herein had attempted

to cause death of PW4-Kashinath Patil or injuries to the other

prosecution witnesses. In view of the said findings the

learned Trial Judge acquitted the accused of offences under

sections 307 r/w. 149, 323 r/w. 149, 143, 144, 147, 148, 504

of the IPC and under section 37(1)/135 of the Bombay Police

Act.

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11. It may be mentioned that in Ghurey Lal Vs. State

of U.P. 2008 (2) UJ SC 0991, the Apex Court after

considering the previous decisions, crystallized the legal

position as regards the scope of the powers of the Appellate

Court in dealing with the appeal against acquittal as under:

"73. In light of the above, the High Court and other appellate courts should follow the well

settled principles crystallized by number of judgments if it is going to overrule or otherwise

disturb the trial court's acquittal:

1. The appellate court may only overrule or

otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and

compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

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v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored

material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not

exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one

that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in

favour of the accused."

12. In Mrinal Das vs State of Tripura, 2011(9) SCC

479, the Apex Court has reiterated that:-

"It is clear that in an appeal against acquittal in the absence of perversity in the judgment and

order, interference by this Court exercising its extraordinary jurisdiction, is not warranted.

However, if the appeal is heard by an appellate

court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power

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and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal

provides for presumption in favour of the accused. The presumption of innocence is

available to the person and in criminal jurisprudence every person is presumed to be

innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record,

the appellate court should not disturb the

findings of acquittal. There is no limitation on the part of the appellate court to review the

evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion

arrived at by the trial Court with respect to both

facts and law. While dealing with the appeal against acquittal preferred by the State, it is the

duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of

acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored

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the evidence or misread the material evidence or has ignored material documents like dying

declaration/report of ballistic experts etc., the appellate court is competent to reverse the

decision of the trial Court depending on the materials placed."

13. We have scrutinised the evidence and analysed the

reasoning and the conclusion arrived at by the learned Judge,

keeping in view the above well settled principles laid down by

the Apex Court. It is not in dispute that PW1- Vilas Patil,

PW2-Sujit PAtil, PW3-Sandeep Patil and PW4-Kashinath Patil

as well as the Respondents are closely related to each other.

The relations between both the groups are strained due to

land dispute and the animosity between both the groups led

to the incident of 5.7.2009, in which Anil, brother of

Respondent No.1-Deepak Patil had lost his life and the

Respondents as well as the complainant-PW1-Vilas Patil, PW3-

Sandeep Patil and PW4-Kashinath Patil sustained injuries.

14. The testimony of the complainant-PW1-Vilas Patil

as well as injured witnesses PW3-Sandeep Patil and PW4-

Kashinath Patil reveals that on the relevant day PW2-Sujit

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Patil and PW3-Sandeep Patil and some other boys were

playing cricket on the school ground at village Patnoli. PW4-

Kashinath and some others were sitting by the side of the

road and watching cricket. They have deposed that,

Respondent No.1-Deepak Patil and his brother Anil and

Manohar got down from a Safari Vehicle and started abusing

them. Thereafter they left the place and returned again with

other accused/Respondents. They were armed with weapons

and that they inflicted injuries on PW1-Vilas Patil, PW3-

Sandeep Patil and PW4-Kashinath Patil. These witnesses have

stated that they had assaulted the Respondents by means of

bats and stumps in exercise of self defence.

15. It is pertinent to note that the evidence of PW1-

Vilas Patil indicates that after the initial altercation the

Respondents had left the place and had returned to the place

of the incident after about one hour. Whereas PW2-Sujit Patil,

and PW3-Sandeep Patil claim that the Respondents returned

to the place of the incident within 10 to 15 minutes. The

testimony of PW4-Kashinath does not indicate that the

Respondents had gone to the village after the initial

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altercation. In the light of the above evidence, we are unable

to accept the contention that the Respondents had gone to the

village after the initial altercation and returned to the place of

the incident armed with weapons with an object of assaulting

PW1-Vilas Patil, PW2-Sujit Patil, PW3-Sandeep Patil and PW4-

Kashinath Patil and other boys from the said village. On the

contrary, the evidence on record reveals that PW2-Sujit Patil,

PW3-Sandeep Patil and some other boys from the village-

Patnoli were playing cricket whereas PW1-Vilas Patil and

PW4-Kashinath Patil and some others were sitting by the road

watching the cricket match. The evidence on record reveals

that Respondent No.1 and his brothers Anil and Manohar,

who were returning to the village by Safari, had stopped near

the place of the incident and had gone to the ground wherein

PW2-Sujit Patil and PW3-Sandeep Patil were playing cricket.

There was an altercation and scuffle between both the groups

and they were joined by their respective family members, who

had arrived at the place of the incident armed with weapons

and assaulted each other.

16. The evidence of PW5-Dr. Basavaraj S Lohare, Vis-

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a-vis the medical certificates reveal that PW1-Vilas Patil, PW3-

Sandeep Patil, PW4-Kashinath Patil and Alpesh Patil had

sustained following injuries:

Injuries sustained by PW1- Vilas Patil :- (I) Contused lacerated wound over forehead 0.5

cm x bone deep (II) Fracture on left humerus lower end. There was diffuse swelling at lower end of left hand.

Doctor has opined that the age of the injuries were

within three hours and caused by hard and blunt object, nature of injury No.1 is simple and about

injury No.2 opinion is reserved. Injuries sustained by PW3- Sandeep Patil :- (I) Over left tempo parietal region, measuring 10

cms x bone deep

(II) Blunt Trauma over right forearm, size diffuse swelling.

PW5-Dr. Basavraj Lohare has opined that the age of the injury was within three hours, caused by hard and blunt object and simple in nature. Injuries sustained by PW4- Kashinath Patil :-

(I) Contused lacerated wound over right side of forehead 8 cms x bone deep.

PW5-Dr. Basavraj Lohare has opined that age of the injury is within three hours, caused by hard and blunt object, nature is simple.

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Injuries sustained by Alpesh Patil :- (I) Blunt Trauma over right knee joint, size diffuse

swelling.

PW5-Dr. Basavraj Lohare has opined that age of the

injury is within three hours and caused by hard and blunt object and simple in nature.

17. It is also pertinent to note that in the same

incident Anil, brother of Respondent No.1 had sustained head

injury and that he had succumbed to the injuries on 8.7.2009.

The Respondents herein and their brother Manohar had also

sustained following injuries:

Injuries sustained by Accused No.1-Deepak Patil :-

i) Monteggia Fracture dislocation left forearm

ii) Fracture distal phalnyx right thumb

iii) CLW over left frontal area of size 2 x 05. x 0.5 cm

iv) CLW over left parietal area, having size 5 x 0.5 x 0.5 cms

v) CLW on mid parietal having size 5 x 1 x 1 cm

vi)Contusion of right forearm having size 6 x 4 cm

vii)Contusion on left thigh having size 7 x 4 cm

Injuries sustained by Accused No.2-Praveen Patil:-

(i) Nasal bleeding through both the nostrils

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(ii) Left black eye

(iii) Contusion on left shoulder, size 8 x 6 cm

(iv) Contusion over upper dorsal area size 7 x 4 cm

(v) Extra axial haemorrhage with pneumocephalus

on the left frontal area

(vi) Fracture frontal bone, involving roof of the left

orbit.

(vii) Haemosinous left maxillary and Ethmoidal

Injuries sustained by Accused No.3-Dayanand Patil:-

(i) Fracture left ulna on the proximal 1/3rd area

(ii) CLW over the right tempora parietal area , size

6 x 1 x 1 cm

(iii) CLW over left occipital area size 4 x 1 x 1 cm

Injuries sustained by Accused No.4-Kishore Patil :-

(i) Fracture proximal ulna on left forearm

(ii) Haematoma over occipital area , size 4 x 3 cm

Injuries sustained by Accused No.5-Prakash Patil :-

(i) Contusion over back of neck, size 5 x 2 cm

(ii) CLW on left supra orbital area, sized 3 x 1 x 1 cm

(iii) CLW over left infra orbital area, size 2 x 1 x 1 cm

(iv) Contusion over left middle finger 2 x 2 cm

(v) Contusion over the dorsum of left hand 3 cm

Injuries sustained by Accused No.7-Pratap Patil :-

(i) Abrasion over the left forearm area 3 x 2 cm

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(ii) Contusion over left forearm size 5 x 3 cm

(iii) Abrasion on the dorsum of left wrist, sized 1 x 1

cm

(iv) Contusion over left frontal area size 4 x 3 cm

(v) Contusion on the left hand of size 3 x 3 cm

(vii) Contusion over the left shoulder, size 6 x 4 cm

Injuries sustained by Manohar Patil :-

(i) Extra axial hemorrhage on left parietal region

with effacement of basal cistern and cortical sulci with cerebral edema with midline shift to right

side.

(ii) Fracture right zygomatic arch and lateral wall of right orbit.

(iii) Right black eye

(iv) Haematoma on right parietal area size 4 x 4

cm.

18. The evidence on record thus indicates that

members of both groups had sustained injuries. The evidence

adduced by the prosecution does not indicate that either of

the groups had assembled at the place of incident with a

common intention of assaulting each other. On the contrary,

it was a case of sudden free fight, in which members of both

the groups had assaulted each other.

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19. While considering the applicability of necessary

ingredients of Section 149 of the IPC, the Apex Court in

Kuldip Yadav & Ors. vs. State of Bihar, JT 2011 (4) SC has

held as under:

"26) The above provision makes it clear that before

convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on

the part of the accused persons, mere fact that they were armed would not be sufficient to prove common

object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence

with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that

the object was unlawful. Before recording a conviction under Section 149 IPC, essential

ingredients of Section 149 IPC must be established. ............"

20. It is thus clear that the accused can be held guilty

of principal section with aid of Section 149 of the IPC only if

it is established that he was a member of an unlawful

assembly. The members of the unlawful assembly can be held

liable under section 149 of the IPC if it is shown that they

knew that the offence actually committed was likely to be

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committed in prosecution of the common object. It is equally

true that the common object does not require prior consent

and a common meeting of mind before the attack. It can

develop even on spot but sharing of such an object by all the

accused must be shown to be in existence at any time before

the actual occurrence.

21. In the instant case there is no cogent and

conclusive evidence to prove that the Respondents herein

were the aggressors or that they had assembled at the place of

incident with a pre meditated plan to inflict injuries on PW1-

Vilas Patil, PW2-Sujit Patil, PW3-Sandeep Patil and PW4-

Kashinath Patil. This being the case of free fight the accused

cannot be held guilty of offence under sections 143, 147 and

148 of the IPC and further they cannot be convicted of

substantive offence with the aid of section 149 or section 34

of the IPC. In other words, no constructive liability can be

imposed against the accused and they can be at the most held

responsible for their individual acts.

22. Now coming to the role of the individual accused,

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the testimony of PW1-Vilas reveals that the Respondent No.1

Deepak and Pravin had given a blow of wooden stick on his

forehead whereas Anil (deceased) had given a blow on his left

hand. He has further stated that Pratap Patil, Kishore and

Pradeep had also assaulted him by giving fist blows. He has

stated that his uncle Kashinath and his cousins Sandeep,

Alpesh and Sujit came to his rescue and the accused assaulted

them with hockey sticks and wooden sticks and that they had

sustained serious injuries. He has further stated that Manohar

had rushed towards him with a sword. He has further

submitted that Prakash Patil and Dayanand Patil had given a

blow of stick on his back.

23. It is pertinent to note that in the FIR at Exh.57 this

witness had not stated that the said nine persons viz. Anil

Patil, Deepak, Prakash, Dayanand, Praveen, Manohar, Kishor,

Pratap and Pradeep had got down from Safari and that they

were armed with weapons such as hockey sticks, wooden

sticks, etc. He had also not stated that the other accused had

assaulted him with fist blows. He had also not stated that

Manohar had rushed towards him with a sword. These

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omissions have been brought on record and proved through

the Investigating Officer. This witness has admitted in his

cross examination that he had not stated in his FIR that

Kishore, Pratap Vithoba and Pradeep Mahadeo had assaulted

him with fist blows, hockey stick, sword, Lathi etc. He has

stated that these persons were not armed with such weapons.

He has further stated that in his examination in chief he had

falsely stated that Kishore Parshuram, Pratap Vithoba and

Pradeep Mahadeo were armed with weapons.

24. PW2-Sujit Patil has not attributed any specific role

to any of the accused/ Respondents but has made a general

statement that Anil, Deepak, Prakash, Manohar, Dayanand,

Praveen, Kishore, Pratap and Pradeep had got down from the

vehicle and assaulted Vilas by means of hockey sticks, wooden

rod, etc. PW4-Kashinath Patil has made a general statement

that all the Respondents as well as the deceased Anil had

assaulted the boys, who were playing cricket. PW4-Kashinath

Patil claims that he was assaulted by Deepak and Prakash.

25. The evidence on record indicates that PW1-Vilas

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Patil had sustained grievous injury, which was inflicted by Anil

(deceased). PW3-Sandeep Patil, PW4-Kashinath Patil and

Alpesh Patil had sustained simple injuries. There is no cogent

and conclusive evidence to prove as to which of these accused

had inflicted the said injuries. Furthermore, the evidence of

the injured witness suffers from material omissions, variations

and improvements. The prosecution has also suppressed

genesis of the incident. In the light of above, the view taken

by the Trial Court is probable and reasonable. We do not find

any compelling or substantial reasons to disturb the order of

acquittal.

26. Under the circumstances and in view of discussion

supra, both the appeals are dismissed.

(ANUJA PRABHUDESSAI, J.) (SMT. V.K. TAHILRAMANI, J.)

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