Bombay High Court
Trimbak Sakharam Sodgir And ... vs The State Of Maharashtra And ... on 17 March, 2016
Bench: A.V. Nirgude
1
CRI.APPEALS.62 N 68.14.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 62 OF 2014
1. Trimbak Sakharam Sodgir,
Age : 55 years, Occupation : Agricultural,
2. Ashabai Trimbak Sodgir,
Age : 50 years, Occupation : Agricultural,
Both R/o : Dongargaon, Tq: Gangakhed,
District : Parbhani.ig ... APPELLANTS
( Orig. Accused Nos.3 & 7 )
V E R S U S
1. State of Maharashtra,
(Copy to be served on the Public
Prosecutor, High Court,
Bench at Aurangabad).
2. Laxmibai Maroti Sodgir,
Age : 45 years, Occupation : Agricultural,
R/o. Dongargaon, Tq: Gangakhed,
District : Parbhani. ... RESPONDENTS
...
Mr. V. D. Sapkal, Advocate h/f Mr. N. R. Pawale, Advocate for Appellants.
Mr. S. G. Karlekar, APP for Respondent No.1.
None for Respondent No.2.
...
W I T H
CRIMINAL APPEAL NO. 68 OF 2014
1. Shankar s/o. Trimbak Sodgir,
Age- 33 years, Occu.: Agril.,
R/o. Dongargaon, Tq. Gangakhed,
Dist. Parbhani.
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CRI.APPEALS.62 N 68.14.odt
2. Sow. Manisha w/o Shankar Sodgir,
Age- 27 years, Occu.: Agril.,
R/o. Dongargaon, Tq. Gangakhed,
Dist. Parbhani. ... APPELLANTS
( Orig. Accused Nos.1 & 8 )
V E R S U S
State of Maharashtra.
(Copy of Respondent to be served on
Public Prosecutor, High Court of Bombay,
Bench at Aurangabad.) ... RESPONDENT
ig ...
Mr. V. D. Sapkal, Advocate h/f Mr. N. R. Pawale, Advocate for Appellants.
Mr. S. G. Karlekar, APP for the Respondent.
...
A N D
CRIMINAL APPLICATION NO. 5737 OF 2015
IN
CRIMINAL APPEAL NO. 68 OF 2014
Shankar s/o. Trimbak Sodgir,
Age: 34 years, Occ: Agriculture,
R/o. Dongargaon, Tq. Gangakhed,
Dist. Parbhani. ... APPLICANT
V E R S U S
State of Maharashtra,
Through Investigation Officer,
Police Station Gangakhed,
Tq. Gangakhed, Dist. Parbhani. ... RESPONDENT
...
Mr. V. D. Sapkal, Advocate h/f Mr. N. R. Pawale, Advocate for Applicant.
Mr. S. G. Karlekar, APP for the Respondent.
...
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CRI.APPEALS.62 N 68.14.odt
CORAM : A. V. NIRGUDE &
INDIRA K. JAIN, JJ.
DATE : 17th March, 2016.
ORAL JUDGMENT: ( Per A. V. Nirgude, J. )
. These appeals challenge the judgment and order dated
14th December, 2013 delivered by the learned Additional Sessions
Judge, Gangakhed in Sessions Case No.16 of 2009. There were in
all 8 Accused before the trial Court. The learned Judge convicted
Accused Nos.1 and 3 for the offence punishable under Section 302
read with Section 34 of the Indian Penal Code and sentenced them to
suffer life imprisonment with fine of Rs. 5,000/- with a default clause.
Accused Nos.7 and 8 were convicted for the offence punishable
under Section 323 read with Section 34 of the Indian Penal Code.
Other Accused Nos.2 and 4 to 6 were acquitted.
2 The prosecution case was that all 8 Accused formed an
unlawful assembly and in prosecution of common object they
assaulted Maroti, the brother of the Complainant and caused his
death. They were also charged with offence punishable under
Section 37 read with Section 135 of the Bombay Police Act.
CRI.APPEALS.62 N 68.14.odt
According to the prosecution, incident took place on 13th November,
2008 at about 08:00 am to 09:00 am at village Dongargaon, Taluka
Gangakhed. As indicated above, the prosecution could not prove
involvement of Accused Nos.2, 4, 5 and 6 in this incident. The
prosecution depended on 12 witnesses. Since the incident took place
at broad daylight in the village, the prosecution case mainly depended
on eye witness account. But before we could advert to the eye
witness account, we would like to discuss the place of offence, which
has bearing on the appreciation of eye witness account. During the
investigation, the Investigation Officer (PW-12 Satish Deshmukh)
stated that after the complaint was lodged, he went to the scene of
occurrence, which was shown to him by Complainant Balasaheb. He
prepared spot Panchanama. He also drew a location sketch, which is
exhibited through his deposition. On perusal of this location sketch
and having regard to the depositions of eye witnesses, we may
describe the location as under:
House No.86 and House No.87 are situated within a
common compound. There is an open space in front of both these
houses. In the open space, there is a small bathroom. It is indicated
throughout the prosecution story that sewage discharged from the
CRI.APPEALS.62 N 68.14.odt
bathroom would flow towards East through a Kaccha channel. On the
East side of these two houses, there is a public road. This public road
takes turn towards East and the same goes on further towards East.
The road in front of the House Nos.86 and 87 runs North-South. The
incident of assault is shown to have been occurred about 45 ft. away
from the Kaccha channel on public street in front of house of one
Pandurang. It is also mentioned in the Panchanama that this place is
paved with cement concrete. At this spot, the police could collect
blood stained earth and cap belonging to the deceased. What is
pertinent to note about scene of occurrence is that the assault did not
take place inside the compound of House Nos.86 and 87 though the
parties had some issue about the open space in front of these two
houses. The assault took place about 45 to 50 ft. away from the open
space in front of the houses. This indicates that the victim as well as
assailants walked up towards East and in front of Pandurang's house
the assault took place.
3 The next circumstance, which is required to be
considered is the nature of injuries sustained by victim Maroti. PW-9
Dr. Avinash Puri is the autopsy surgeon. He stated that on 14 th
November, 2008 he received intimation from the Government Medical
CRI.APPEALS.62 N 68.14.odt
College, Nanded requesting him to examine dead-body of Maroti. At
about 01:00 am to 02:00 am on 14th November, 2008 postmortem
was conducted. He prepared a postmortem report in which it was
mentioned that the deceased had a stitch wound over left tempero
parietal region of 6 cm length. He also mentioned that victim suffered
multiple contusions over occipito temporal region on both right and left
side of the head. Upon internal examination the autopsy surgeon
found that there was haematoma under the skull all over. He also
found liner depressed fracture of skull bone in the area of frontal,
temporal and occipital. The length of such fracture was about 15 cm.
The surgeon opined that the death took place due to head injury.
During the cross-examination of this witness, he further opined that
the injuries described above could not have caused by one single
blow of weapon on the head. He opined that there could have been
number of strokes delivered on the head of the victim. In the
background of these circumstances, now we examine the ocular
version of the prosecution case.
4 PW-1 Janardhan stated that at the relevant time he used
to stay in deceased Maroti's house at village Dongargaon. He further
mentioned that Maroti and his brother Balasaheb did not stay in their
CRI.APPEALS.62 N 68.14.odt
house, but they stay in their agricultural field. He further mentioned
that there was no drainage available to his house.
5 PW-2 Complainant Balasaheb is the brother of the
deceased. He stated that on the day of incident at about 08:00 am
he, his brother Maroti and Bapurao were in their house (Though this
witness did not indicate that his house is situated in the agricultural
field, there is a clear indication that he was trying to suggest that he
and others were inside the house, which was in the use of PW-1
Janardhan.) He then stated that Accused Nos.1, 2, 4, 5, 6, 7 and 8
came in front of the house and started abusing him and his brother
Maroti. They were calling them outside of the house and were issuing
threats of death. He stated that this happened on the road in front of
the house. He thereby ruled out possibility of the above mentioned
Accused entering inside the compound and were standing in the open
space in front of the houses. He then stated that Accused No.3
Trimbak came from outside and caught hold of hands of Maroti.
Accused No.1 Shankar then delivered a blow of spade from the blunt
side on the head of Maroti, who sustained bleeding injury and fell
unconscious on the ground. We have already noted above the place
of assault was in front of Pandurang's house about 50 ft away from
CRI.APPEALS.62 N 68.14.odt
the open space. This witness did not mention anywhere as to how he,
Bapurao and his brother Maroti walked from their house inside the
compound upto the spot where the incident took place. He even did
not state as to from where Accused No.3 came to the spot. He simply
stated that he came from 'outside' thereby indicated that Accused
No.3 Trimbak was not with other Accused when they were abusing
and threatening him and his brother.
In the cross-examination, he admitted that he has a house
in his agricultural field. But he said that at the time of the incident, he
was sitting in his house, which is situated in the village. He also
indicated that he, Bapurao and Maroti were standing in front of the
house. He further indicated that part of their ancestral house was
sold by one of the brothers to Accused No.3 Trimbak. He further
admitted that the open space in front of both the houses was
common. He further stated in the cross-examination that quarrel with
the Accused took place due to dispute about open space. In the
cross-examination, he further admitted that after victim Maroti fell
down on the ground, he raised an alarm and hearing him persons
from the village came to the spot. He further admitted that after the
incident, he along with other witnesses of the prosecution took Maroti
CRI.APPEALS.62 N 68.14.odt
in an auto-rickshaw to hospital at Gangakhed, but the doctors did not
admit Maroti there. They asked them to take the deceased to
Parbhani. They then used a car to take Maroti to Parbhani. Even
doctors at Parbhani hospital advised them to take Maroti to Nanded.
Ultimately, Maroti was taken to a private hospital at Nanded.
Deceased died in this hospital after few hours. In the cross-
examination, he also admitted that though he stated to the police at
the time of recording of the complaint that Bapurao was with him at
the time of incident, his name was not found in the complaint. This
admission indicates that at the time of filing of the complaint, this
witness did not mention to the police that Bapurao was with him and
deceased Maroti at the time of assault. Because of this lapse, the
deposition of Bapurao, who is said to be an eye witness, gets
suspicious.
7 The next important witness is PW-3 Bapurao Sodgir, who
gave a little different story about the incident. He stated that PW-2
Balasaheb and deceased Maroti were his cousins. He indicated that
they all had houses at village Dongargaon. He stated that he sold his
portion of ancestral house to Accused No.3 Trimbak. All Accused
then started residing in this house. He further stated that to the North
CRI.APPEALS.62 N 68.14.odt
of the house, there was a bathroom from where sewage would flow
through common open space towards East. Accused/Trimbak
stopped sewage flow by obstructing it. On the day of incident at
about 08:00 am he, Maroti the deceased and Balasaheb Complainant
were in the agricultural field. Deceased Maroti came to him in the
morning and asked him to accompany him to village. Maroti told him
that Trimbak had obstructed drainage flow. He, deceased Maroti and
Balasaheb then went to village. They called 2-4 persons by name
Shivaji, Gyandeo, Radhabai. All of them then went towards the
house where Accused No.1 and PW-1 resided. They asked Accused
No.1 Shankar to let sewage flow. To this, Accused No.1 Shankar
refused. There occurred discussion. They all then went towards on
the road. At that time, Accused No.3 Trimbak came from outside. He
said in angry mood that he would show how sewage from bathroom
would get drained. Accused No.3 Trimbak then caught hands of
Maroti. Accused No.1 Shankar delivered blow of spade on Maroti's
head using blunt side. Maroti sustained injury and fell down on the
ground etc. After seeing Maroti's blood, he felt giddiness and sat on
the ground for about 10-15 minutes. Thereafter, he helped
Balasaheb to take Maroti to hospital etc. Despite of this deposition,
CRI.APPEALS.62 N 68.14.odt
which partly helped the prosecution case, learned Public Prosecutor
declared this witness hostile probably because he did not implicate
Accused Nos.4, 5 and 6. In the cross-examination, this witness
admitted that he had sold half portion of his house to Accused /
Trimbak. He also admitted that open space admeasuring 20 x 20 ft
was also sold to Trimbak. He further admitted that because of such
transaction there remained no space in front of his house for drainage
or sewage channel in the common open space. The presence of this
witness is also doubtful because of absence of his name in the FIR as
an eye witness to the incident. Beside this witness stated that prior to
the incident, he and others called Shivaji, Gyandeo and Radhabai and
in their company they proceeded to the house of the Accused. It is
thereafter, the incident took place. But the prosecution case did not
depend on depositions of Shivaji, Gyandeo and Radhabai at all. They
were not examined as witnesses. This witness also did not support
the deposition of PW-2 Complainant Balasaheb, who said that he was
inside the house and the Accused started abusing standing in front of
the house on the road. This witness does not corroborate this part of
the prosecution case. We have therefore, serious doubt of credibility
of this witness.
CRI.APPEALS.62 N 68.14.odt
8 The next important witness is PW-4 Laxmibai, who was
the wife of deceased Maroti. She stated that there was dispute on
account of drainage between the Accused party and her husband.
She also admitted that after Bapurao sold his portion to Accused
No.3, his family started residing in the house. She stated that at
about 08:30 am on that day, her husband Maroti, Bapurao and
Balasaheb went towards the house in the village. At that time she
had been to flour mill of one Vithoba, which is about 10-15 ft away
from the house. She then narrated the incident, as if, she was
present on the spot all throughout. She stated that her husband
Maroti, Bapurao and Balasaheb went inside the house. Accused
Nos.1, 2, 7 and 8 prevented and abused them. Her husband and
brothers-in-law came out on the road. Accused No.3 Trimbak came
from outside. He caught hands of her husband and Accused No.1
Shankar delivered blow of spade on his head. Her husband Maroti
fell down. Thereafter, she also implicated other Accused. She further
stated that at the time of incident, villagers by name Gyanba,
Sarjerao, Bhagwan, Satish and Shivaji came on the spot and
separated the quarrel. We have strong doubt about presence of this
witness at the scene of occurrence. Both PW-2 and PW-3 did not
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mention her name as one of the witnesses to the incident. She also
conveniently stated that at the time of incident, she had come to flour
mill. This gave an opportunity for her to see the incident. She thus is
a chance witness. We do not believe her when she said that at the
relevant time she had gone to the flour mill and then she could see
the incident. This witness is a got up witness and we reject her
testimony altogether.
The next eye witness is PW-5 Vithal, who stated that he
ran flour mill in village Dongargaon. At the relevant time, he was
sitting in front of his flour mill. He saw deceased Maroti and
Complainant Balasaheb were cleaning the drainage, which was
situated in front of Maroti's house. There occurred scuffle between
Maroti and Trimbak. Trimbak caught hold of Maroti's hands and
Accused No.1 Shankar delivered blow of spade on Maroti's head. He
sustained bleeding injury and fell down. He also narrated the incident
implicating other Accused. This witness has given another twist to the
prosecution case, which is narrated above through the depositions of
three so-called eye witnesses. He takes the incident right inside the
compound of the house on the open space, which according to the
scene of occurrence was far away from the actual place of occurrence
CRI.APPEALS.62 N 68.14.odt
where blood of the deceased was found and from where deceased
was lifted. This witness did not explain as to how he could see the
incident while sitting in front of his flour mill. In the scene of
occurrence Panchanama and the location sketch, which depicted all
nearby houses, did not mention about existence of flour mill near the
scene of occurrence. This witness thus is a got up witness and we
reject his testimony.
There is one more eye witness, who is PW-8 Satish
Gavai. He stated that at the time of incident, he was at his house.
His house is situated near the house of the Accused. He heard noise
of abuses. He came out of the house. He saw deceased Maroti, his
brother Balasaheb PW-2, Accused No.1 Shankar, Accused No.2
Tukaram and women in front of his house. They were having quarrel.
The Accused were abusing. Thereafter, deceased Maroti and
Balasaheb came out on the road. Accused No.3 Trimbak then caught
Maroti's hands and Accused No.1 Shankar delivered blow of spade
using blunt side on his head. Maroti fell down. In the cross-
examination, this witness stated that he would not remember whether
he had told police at the time of recording of his statement that
Accused No.1 Shankar came from back side having spade in his
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hand and gave blow from back side of head. He further stated that he
could not assign any reason why this was not written in his statement.
Therefore, the material allegations which he made as eye witness is
an improvement. We are therefore, not inclined to believe his
deposition that he saw Accused No.1 delivering a blow of spade on
the head of the deceased.
11 We have made a gist of depositions of eye witnesses.
We are inclined to believe that when the deceased was assaulted,
PW-2 Balasaheb was with him. All other witnesses are got up
witnesses. The incident of assault lasted for about few seconds
because all the witnesses indicated that there was only one blow of
spade, which was delivered on the head of the deceased. No other
injuries were found on the person of deceased. No other person was
also injured. This leaves us with deposition of PW-2 Balasaheb the
Complainant. We have recorded our reasons why were are not
inclined to believe his deposition.
12 The incident took place at broad daylight in front of the
houses of so many persons. It was a public street and yet the
interested prosecution witnesses from beginning narrated the incident
CRI.APPEALS.62 N 68.14.odt
in such a manner that they would involve as many as possible
persons from the opponent family. They implicated 8 Accused. Even
the involvement of Accused Nos.7 and 8 does not appear possible.
They were women from the family of Accused Nos.1 and 3. It was
alleged against them that they delivered kick and fist blows on the
person of deceased, but the medical evidence did not support this
part of the prosecution case. Therefore, they also deserve clean
acquittal. Despite the fact that the incident took place at broad
daylight and could have been seen by independent witnesses, the
prosecution made a complete mess and therefore, their entire case
deserves to be disbelieve. Both the appeals should therefore
succeed. Hence the following order -
O R D E R
I. Criminal Appeal Nos.62 and 68 of 2014 are
allowed.
II. The judgment and order dated 14th December,
2013, passed by the learned Additional Sessions
Judge, Gangakhed, in Sessions Trial No.16 of
2009 convicting the Appellants, is hereby set aside.
CRI.APPEALS.62 N 68.14.odt
III. Appellants / Accused Nos.1, 3, 7 and 8 are
acquitted of the charge.
IV. Accused Nos. 1 and 3, who are in jail shall be
released forthwith, if not required in any other
crime.
V. Bail bonds of Accused Nos.7 and 8 are cancelled.
VI. Pending Criminal Application No.5737 of 2015
stands disposed of.
[ INDIRA K. JAIN, J. ] [ A. V. NIRGUDE, J. ]
ndm
