Bombay High Court
Mahadeo Pirappa Mehtre & 9 Ors vs State Of Maharashtra on 10 March, 2016
Bench: S.S. Jadhav
1 14.594.96 apeal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 594 OF 1996
1. Mahadeo Pirappa Mehtre )
2. Gurusiddha Pirappa Mehtre )
3. Shivanna Pirappa Mehtre )
4. Malsiddha Pirappa Mehtre )
5. Sidharam Mahadeo Jodmote ) Origal Accused
6. Mallu Mahadeo Jodmote ) Nos. 1 to 10/Appellants.
7. Vithal Mahadappa Adole )
8. Dattu Malsidha Rupnar )
9. Dagadu @ Sikandar Mh.Nadaf )
10. Jilani Amin Nadaf )
All R/o Mandrup, Tal. South Solpaur
& No. 9 of Vadapur
V/s
1. The State of Maharashtra )
2. Soma Amanna Pujari )
R/o Village - Vadapur, Tal. South Solpuar )
3. Malsidha Naikwade )
R/o Mandrup, Tal. South Solapur ) ..Respondents
4. Sonabai Malsidha Naikwade )
R/o Mandrup, Tal. South Solapur
Mr.A.A.Kumbhakoni, Senior Counsel a/w Mr. S.B.Lolge a/w Mr. Shardul
Singh a/w Mr. Udayan A. Shah i/b. Mr. P.G. Sarda for the appellants.
Ms. A.A.Mane, APP, for the State.
CORAM : SMT. SADHANA S. JADHAV, J.
DATED : MARCH 10, 2016.
ism
::: Uploaded on - 28/07/2016 ::: Downloaded on - 31/07/2016 08:23:25 :::
2 14.594.96 apeal
JUDGMENT:
1) The Appellants herein are convicted for offence punishable under
sections 324 r/w Section 149 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for 3 years and fine of Rs. 1,000/- (Rs. One Thousand)
each in default to suffer further rigorous imprisonment for the period of three
months each. No separate sentence is awarded for offence punishable under
section 147 and 148 of the Indian Penal Code by 3 rd Additional Sessions
Judge, Solapur in Sessions Case No. 1 of 1995.
2) Such of the facts necessary for the decision of this appeal are as
follows.
(i) The place of incident is village Mandrup which is about 15-20 Kms
from the city of Solapur. It is the case of the prosecution that on 20/09/1994
Malsiddha Naikwade lodged a report at Mandrup Police Station. That he was
owner of 12 acres of land Gat No. 558 at Mandrup Shivar. He had purchased
the said land from Pandurang Deshpande. That they had filed a suit for
specific performance against Pandurang Deshpande which was pending
before the Civil Court at Solapur. As per the orders of the Court, his brother
had paid Rs. 6,000/- (Rs. Six Thousand) in the court and a temporary
ism
3 14.594.96 apeal
injunction was granted in favour of the complainant.
(ii) That he had learnt that Mahadev Mhetre had got the said land
transferred in the name of his wife. That he had started the cultivation. That
Mahadev and his brother Gurusidh had declared that the said land belongs to
them. On the date of incident i.e. on 20/09/1994, complainant along with his
brother and other relatives were in their house and at that time, his wife and
other family members were tethering the cattle in land Gat No. 558. At that
time, three jeeps had come on the spot. All the accused along with other
unknown persons had alighted from the said jeeps and had been to the well.
Most of the accused were armed with axes and the others were armed with
sticks and stones. Upon seeing them the complainant and others had also been
to the spot. At that time, Mhetre and others had told the complainant that they
would withdraw themselves from the possession of the said land as they have
no concern with the said land. The complainant is alleged to have told the
accused persons that if that is so, they should obtain appropriate orders from
the Civil Court. There was an altercation and at that time accused had started
pelting stones and had also mounted assault upon the complainant. The
complainant and his family members got scared. The complainant had gone to
ism
4 14.594.96 apeal
the land of Gopalrao Kore who was President of the village. On the way, they
were apprehended by the accused who had inflicted blows with sword and
axes and sticks. The others had intervened and at that juncture, the accused
had also mounted assault upon the interveners.
(iii) On the basis of the said statement, crime no. 30 of 1994 was registered
at Mandrup Police Station. Accused nos. 1, 2 & 4 to 10 were arrested on
21/09/1994 and were enlarged on bail on 29/09/1994. Accused no. 3 was
arrested on 09/11/1994 and was released on 19/11/1994.
(iv) After completion of investigation, charge-sheet was filed on
20/11/1994. The case was committed to the Court of Sessions and registered
as Sessions Case No. 1 of 1995.
(v) The prosecution examined as many as 11 witnesses to bring home the
guilt of the accused. The accused had also examined Mahadev Mendgudale as
defence witness.
3) P.W. 1 Malsiddha Naikwade has deposed before the Court in
consonance with the first information report and the same is marked as
Exhibit 40. He has specifically identified all the accused persons before the
Court as they were known to him. According to him he and his wife had
ism
5 14.594.96 apeal
received contusions on account of pelting of stones. It is admitted in the
cross-examination that his brothers Ogyappa, Amogsiddha & Rangsiddha had
their own agricultural lands and were residing in their respective agricultural
lands. His brother used to prosecute the litigation with the landlord
Deshpande. That the relations between Deshpande and Naikwade family were
strained. Pandit Shendge had assigned his right of purchase in favour of
accused Mahadev.
4) It is also admitted in the cross-examination that Mr. Deshpande had
executed a sale deed in favour of accused no. 1 and his two wives and that
they were put into possession of Gat No. 558 on the same day. This aspect
had annoyed P.W. 1. It is also admitted that P.W. 1 was prosecuted on account
of the assault on the father-in-law of Ganesh namely Pandharinath Kulkarni.
His brother-in-law namely Somanna Pujari is resident of village Vadapur. He
has feigned ignorance in respect of political enmity between Devkate & Kore.
He has also admitted that when he was sitting in the field along with others he
had seen the assailants proceeding towards the field, armed with weapons. He
therefore, thought that he should save himself. He was in the field till the
assailants reached near the well. Somanna was assaulted by accused nos. 1 to
ism
6 14.594.96 apeal
4 near the fodder cutting machine of Gopal Kore. He has denied the
suggestion that accused no. 3 had acted as an attesting witness on the same
day in the office of Sub-Registrar. It is also admitted that 5 to 6 assailants had
come from Solapur and they had assaulted the complainant and others. The
actual assault lasted up to 5 - 10 minutes.
5) P.W. 2 Soma Pujari who is an injured eye witness has deposed before
the court that on the day of incident his cattle as well as the cattle of Ogyappa
were in Gat No. 558 and Draupadi, Sonabai, Malsiddha and others were near
the well. All the accused came in the jeep and entered field Gat No. 558 and
had informed P.W. 2 & others that they are in possession of the said land.
According to him, accused person had cut the ropes by which the cattles were
tied and thereafter they ran towards village Mandrup. When he reached near
the fodder cutting machine, he was caught hold by accused nos. 3 & 4 and
was assaulted by accused nos. 1 & 2 on his legs, knee, thigh and other parts of
the body. He has attributed overt act to each and every accused. He had
become unconscious and had regained consciousness in the Civil Hospital,
Solapur. His dying declaration is recorded in Civil Hospital. He has admitted
that he has agricultural land at Vadapur. In the cross-examination he was
ism
7 14.594.96 apeal
confronted with his previous statement and has admitted that he had not stated
in the said statement that all the accused persons had followed him on
Mandrup-Vinchur road by jeep and motorcycle. He had neither stated that
accused persons had asked them to withdraw themselves from land Gat No.
558 and that they had cut the ropes by which the cattle were tied. The act of
having been held by accused nos. 3 & 4 is a material omission. He has further
admitted that as a prelude to the incident, there was a discussion between the
accused persons and the complainant party. He has further stated that they did
not react when the accused had tried to cut the ropes by the the cattle were
tied. Subsequently the witness has admitted that he was not caught hold by
anybody as long as the incident lasted. He has further stated that he was
dragged from the fodder cutting machine up to Mandrup-Vinchur road. It is
also admitted that when his alleged dying declaration was being recorded, the
police were present in the hospital. He has denied having stated the portion
marked 'A' in his previous statement.
6) P.W. 3 Sonabai Naikwade is also the injured witness. She has reiterated
the allegations levelled by P.W. 1 & 2, however, according to her, Soma was
taken to the police station and thereafter he was referred to the hospital
ism
8 14.594.96 apeal
whereas P.W. 1 & herself had received the first aid at Mandrup Primary
Health Centre and then had come to Civil Hospital Solapur.
7) It is elicited in the cross-examination that as soon as she saw the
accused entering the field she got frightened and asked P.W. 1, his brothers
and Soma Pujari to run away from the field and therefore they had started
running towards fodder cutting machine whereas she started running towards
village.
8) P.W. 4, 5 & 6 are declared hostile by the prosecution.
9) P.W. 7 Nagappa Kurane is the translator as the evidence of the
witnesses was recorded in Kannada language.
10) P.W. 8 Vithabai Pujari claims to be in the field of Ogyappa Naikwade
on the date of the incident. According to her, they were tethering the cattle, all
of a sudden accused came in jeep, some accused came on motorcycle. They
parked their vehicle on Mandrup-Vinchur Road and others entered the field
with arm weapons. Since they were all scared, they started running helter-
skelter That Soma was surrounded by accused nos. 1 to 6 near the fodder
cutting machine.
11) In the cross-examination the witness has denied the portion marked 'A'
ism
9 14.594.96 apeal
in her previous statement which is to the effect that the police had already sent
the police jeep to the spot of incident along with police station even before
she reached the police station. She has reiterated that she had been to the
police station and gave the information about the incident.
12) P.W. 9 Dr. Asha Gaikwad was the Medical Officer at Civil Hospital at
Solapur. According to her on 20/09/1994, Soma Pujari was brought by Police
Head Constable for medical examination. He had sustained 7 incised injuries
which were muscle deep and 6 contusions. According to her all the injuries
were simple in nature and could be caused by sharp weapon whereas injuries
nos. 8 to 13 were said to be possible by hard and blunt object. Soma was
admitted as an injured patient from 20/09/1994 at 7.45 p.m. and was
discharged on 22/09/1994 at about 8.00 a.m. It is specifically admitted in
the cross-examination that the cumulative effect of all the injuries would
also not result into death of the injured unless an infection was caused to
the said injuries. Sonabai had sustained injuries in the nature of bruises,
abrasions on her arm and scapular aspect. They were simple injuries whereas
P.W. 1 had sustained abrated contusions on his back shoulder and scapula and
they were simple injuries as stated by P. W. 10 Dr. Balbhim Narsude.
ism
10 14.594.96 apeal
13) P. W. 11 Suresh Babhale is the Investigating Officer. He has deposed
before the Court that he had referred the injured to Primary Health Centre,
Mandrup. Since the doctor was not available, he referred them to Civil
Hospital, Solapur. He has admitted that Exhibit 40 which is F.I.R. was signed
by him. He has also deposed before the court that even prior to the incident,
complainant had lodged a report against the accused persons that they were
troubling him and his family members on account of dispute of the
agricultural land. That the complainant had also submitted the judgments of
the civil court which stood in his favour. It is elicited in the cross-examination
that on the date of incident i.e. on 20/09/1994, at about 1.30 p.m., Sharanappa
Mhetre had given the information about the alleged incident to the Police
Station. He has proved the omissions and contradictions in the evidence of the
witnesses.
14) Upon perusal of the evidence adduced by the prosecution, it is clear
that the injured witnesses are eye witnesses. The ocular evidence would
prevail over any other evidence. The accused were known to the complainant
and the prosecution witnesses. There is record to indicate that the complainant
and his brothers were in possession of the said land and that there were
ism
11 14.594.96 apeal
Judgments of Civil Court in their favour. The presence of accused nos. 1, 2, 5,
6 & 9 is established by the prosecution beyond reasonable doubt. The acts
alleged against them are also proved.
15) The Court cannot be oblivious of the fact that Somappa was admitted in
the hospital for hardly 36 hours. The nature of his injuries were not such that
the dying declaration needed to be recorded. In any case, he has survived the
injuries and therefore, the statement would become Res-Gestae and can no
more be treated as statement under section 32 of the Indian Evidence Act. In
the statement of the injured, there are material omissions.
16) Prosecution has established the fact that the scene offence is Gat No.
558 of village Mandrup. That there were Judgments in favour of the
complainant. That the complainant as well as P.W. 2, 3 & 8 were present at
the scene of the offence. The accused persons were known to the witnesses,
therefore, there cannot be any mistaken identity. P.W. 2 had rather sustained
injuries, however, the nature of the injuries would not make out a case under
Section 307 of the Indian Penal Code. The learned Sessions Judge has rightly
convicted all the accused for offence punishable under section 324 r/w
Section 149 of the Indian Penal Code.
ism
12 14.594.96 apeal
17) Upon perusal of the substantive evidence of the witnesses, it is clear
that the material omissions and contradictions in the evidence need to be
taken into consideration. That There is evidence to show that accused no. 3 at
the time of incident was in the office of Sub-Registrar, South Solapur and had
signed as an attesting witness on sale deed registered between 2.00 p.m. to
3.00 p.m. The incident according to prosecution witnesses has taken place
about 1.00 p.m. The scene of offence is at a distance of 15-20 Kms from
office of the Sub-Registrar and in these circumstances, it cannot be said that
accused no. 3 was present at the scene of offence. The prosecution witness no.
2 has failed to establish that accused nos. 3 & 4 had caught hold of him in
order to facilitate the assault by accused nos. 1 &2. P.W. 8 Vithabai has
specifically stated that Soma was surrounded by accused nos. 1 to 6 near
fodder cutting machine and that accused nos. 1 to 6 had assaulted Somabai
with their respective weapons. The prosecution witnesses have failed to
establish that they were chased by the accused for some distance. The scene
of offence panchanama is not proved as witnesses are declared hostile.
However, the fact that the injured witnesses had seen accused nos, 1, 2, 5, 6 &
9 assaulting them, they cannot be disbelieved irrespective of the
ism
13 14.594.96 apeal
discrepancies. The ocular evidence would prevail over any other type of
evidence and hence, accused nos. 1, 2, 5, 6 & 9 deserve to be convicted for
offence punishable under Sections 324 r/w Section 149 of the Indian Penal
Code.
18) In view of the discussion made herein above, the following order.
ORDER
(i) The appeal filed by original accused No. 3 - Shivanna Pirappa Mehtre,
accused No.4 - Malsiddha Pirappa Mehtre, accused No.7 - Vithal Mahadappa
Adole, accused No.8 - Dattu Malsidha Rupnar and accused No.10 - Jilani
Amin Nadaf is allowed.
(ii) They are acquitted of the offence punishable under Section 324 of Indian
Penal Code.
(iii) Appeal against original accused No. 1 - Mahadeo Pirappa Mhetre, No.2
- Gurusiddha Pirappa Mehtre, accused No.5 - Sidharam Mahadeo Jodmote,
accused No.6 - Mallu Mahadeo Jodmote and accused No.9 - Dagadu @
Sikandar Mh.Nadaf is hereby dismissed.
(iv) Appeal stands abated as against original accused No.1 - Mahadeo
Pirappa Mehtre.
ism
14 14.594.96 apeal
(v) The conviction of the said persons for the offence punishable under
Section 324 read with Sections 147,148 and 149 is hereby confirmed. They
are sentenced to the period already undergone.
(vi) The sentence of fine is maintained.
(vii) Their bail bonds stand cancelled.
(viii) The learned Sessions Judge, Solapur, shall call upon the complainants -
(1) Soma Amanna Pujari, (2) Malsidha Naikwade and (3) Sonabai Malsidha
Naikwade and award them compensation as recorded by the Sessions Court.
19) Appeal stands disposed of accordingly.
(SMT. SADHANA S. JADHAV, J.)
ism
