Bombay High Court
State Of Maharashtra vs Vithal Baliram Bhojane And Others on 6 October, 2016
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.83 OF 1999
The State of Maharashtra APPELLANT
(Prosecution)
VERSUS
1. Vithal Baliram Bhoja,
Age 52 yrs., Occu.Agri.
R/o. Ekdara, Tq. & Dist. Nanded
2. Dasharath Meghji Bhojane,
Age 42 yrs., Occu.Agri.
R/o. Ekdara, Tq. & Dist.Nanded.
RESPONDENTS
(Orig.Accused No.
1 and 4)
...
Mr.K.S.Patil, APP for the Appellant
Ms.Ranjana D. Reddy, Advocate for Respondent
nos.1 and 2.
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 19.08.2016
Pronounced on : 06.10.2016
JUDGMENT: (Per S.S.Shinde, J.):
This appeal has been filed
challenging the judgment and order dated
13.11.1998 passed by the 2nd Additional
Sessions Judge, Nanded in Sessions Case No.
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119/1994, thereby acquitting the respondents
of the offences punishable under Sections
147, 148, 302, 504 and 506 (2) read with
Section 149 of Indian Penal Code ("IPC" for
short).
2. For the sake of convenience, the
parties are hereinafter referred to by the
same nomenclatures by which they have been
referred before the trial Court.
3. The background facts for filing the
present appeal as per the prosecution case
are as under:-
There were trees of Bor owned by the
informant viz. Madhavrao Hanmantrao Bhojane
situated on the common bund of his land and
that of the accused, situate within the local
limits of village Ekdara, Taluka Nanded,
District Nanded. There was dispute about the
said trees between the informant and the
accused 6 months prior to the date of the
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incident. The police did file chapter cases
against the informant and also against the
accused for committing breach of peace.
4. It is the case of the prosecution
that on 06.05.1994 at about 8.00 a.m. the
informant's elder brother Marotrao was
returning after answering call of nature.
The respondents restrained him. All the
accused at that time were armed with axes and
sticks. All of them in threatening voice told
Marotrao that they were going to the land for
cutting the trees and challenged that if
Marotrao or anybody else wanted to prevent
them, they might come in the land. Marotrao
then went to the house of the informant. The
wife of the informant and his daughter
Anusayabai were at the house. Marotrao told
them about the threats given by the accused.
Then the wife and daughter of the informant
went to their land. The informant followed
them after some time. When the informant
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reached the land, he found that accused nos.1
to 7 and 17 viz. Vithal, Kondiba, Balaji,
Dashrath, Sahebrao, Ram, Gangadhar and Pandu
were in the land. Out of them the accused
Vithal, Dashrath and Pandu were armed with
axes. The informant found that the disputed
trees owned by him were cut down. He then
went to the accused and accosted them for
cutting the trees. All the accused then got
annoyed. They rushed to the informant. The
accused Pandu was beating the informant with
the handle of axe over the left leg. The
accused Vithal was beating the informant with
the handle of axe over the left arm, head and
left thigh. The informant then raised
commotion. After hearing his commotion, his
daughter Anusayabai, wife Parvatibai, son
Ananda, brother Govind and one Namdeo Rama
Munjaji and Sahebrao Sambhaji gathered near
the informant. The informant fell on the
ground. At that time Anusayabai, the daughter
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of the informant, so as to save the informant
from beating by the accused, laid herself on
his person. Thereafter immediately, Pandu
gave a blow of axe over the head of
Anusayabai. Another blow was dealt with an
axe by the accused Vithal over the head of
Anusayabai. Anusayabai sustained bleeding
injuries over the head and died
instantaneously. When the other witnesses
started going to the informant, the accused
persons restrained and assaulted them. In the
said assault, Parvatibai, Anandrao, Govindrao
and Namdeo sustained injuries. Thereafter,
the accused ran away from the spot of
incident.
5. The informant then immediately went
to the Police Station. He lodged the report
(i.e. F.I.R.) in the Police Station against
all the accused. The clothes on his person,
being stained with the blood of Anusayabai,
were seized by the police. The other injured
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persons were referred to the Medical Officer
but as the Hospital was closed, they were
referred to Civil Hospital, Nanded where
their injuries were examined and treated by
Doctor. After receipt of the report, the
offence was registered against all the 18
accused. The panchanama of scene of offence
was drawn where some articles were also found
along with blood stained earth. The accused
were arrested. After their arrest, the
clothes on their persons were seized. On the
information given by the accused, the axes
and sticks used in committing the offence
were also seized by Investigation Officer.
The seized articles were sent to the Chemical
Analyzer.
6. Meanwhile notes of postmortem were
received by the police disclosing that
Anusayabai died due to the injuries sustained
by her on the head. The accused were charge-
sheeted under Sections 147, 148, 302, 323,
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504 read with Section 149 of the IPC.
7. The prosecution examined in all 11
witnesses including the informant viz.
Madhavrao Bhojane (PW6), his wife Parvatibai
(PW7), his real brother Govindrao Bhojane
(PW8), the son of the informant viz. Anandrao
Bhojane (PW9) and the brother of informant
viz. Namdeo Bhojane (PW10), who were the eye
witnesses to the incident.
8. The accused raised defence that
Anusayabai was of loose character. She was
having illicit relations with the servant of
the informant viz. Kondya. She remained
pregnant from him. She was aborted. The
informant, his son and others, therefore,
were annoyed because of the same and might
have killed Anusayabai. There was previous
enmity between the informant and the accused,
and therefore, a false FIR has been
registered against them. The accused raised
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the specific case of private defence.
According to them, only accused nos.1, 3, 4,
5, 7 and 10 were present in the land at the
time of the incident. All of them have
sustained injuries. It is the case of the
accused that since the informant and eye
witnesses attacked them with the weapons like
axes etc. in order to protect them, their
lives and protect their trees they had a
scuffle with the informant and others. In the
said scuffle, the informant and others have
sustained injuries by falling on the branches
of the trees. The accused were not having any
axes. In the said scuffle the axes which were
with the informant, Govindrao (PW8) and
Anandrao (PW9) took the life of Anusayabai.
Anusayabai had been there along with her
parents with a sachet of chilli powder. She
threw chilli powder on the accused. As such,
the accused acted in exercise of their right
of private defence to save their lives and
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property. The trial Court, after full-fledged
trial, acquitted the accused. Hence this
Appeal.
9. The learned APP appearing for the
State invites our attention to the evidence
of the eye witnesses and also to the medical
evidence and submits that the evidence of the
eye witnesses gets corroboration from the
medical evidence. He submits that there was
recovery of the axes and sticks at the
instance of the accused persons. According to
him, the prosecution has established guilt of
the accused beyond reasonable doubt.
10. On the other hand, the learned
counsel appearing for the respondents/
accused submits that the trial Court on
scrutiny of the evidence of the prosecution
witnesses found that the said evidence
suffers from improvements, contradictions and
omissions, and therefore, the same cannot be
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relied upon so as to base the conviction. The
learned counsel invites our attention to the
evidence of the informant, Parvatibai (PW7),
Govindrao (PW8), Anandrao (PW9) and Namdeo
(PW10) and submits that if their statements
in examination-in-chief are minutely
scrutinized in the light of the cross-
examinations, it is abundantly clear that
their evidence deserves to be discarded. He
submits that the trial Court has taken
plausible view and therefore the impugned
judgment and order needs no interference.
11. We have considered the entire
evidence brought on record by the
prosecution. It appears that Srihari (PW1),
Bhimrao (PW2) and Bajirao (PW3), who are the
Panch Witnesses, turned hostile. The alleged
recovery at the instance of the accused
persons also is from the open field
accessible to all.
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12. The informant states that on the
date of incident at the relevant time
accused nos.1 to 7 were in the land. Accused
no.17 Pandu and accused no.4 were armed with
axes. The remaining accused persons were
armed with sticks. The trees were already cut
down. The informant then accosted the accused
why they are cutting the trees. The accused
got annoyed. Then they rushed to the
informant. The accused Pandu gave a blow of
handle of the axe over his left leg. Accused
no.1 beat the informant with the handle of
the axe over his head, left arm and left
thigh. He raised shouts because of beating to
him. After hearing his shouts, Parvatibai
(PW7), the deceased Anusayabai, Govindrao
(PW8), Namdeo (PW10), Anandrao (PW9), Rama
Mujjani, Sahebrao son of Sambhaji went near
the informant. Because of beating by the
accused, he fell on the ground. The deceased
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Anusayabai came and laid herself on his
person so as to save him. Accused no.17
(Pandu) then gave blow of axe over the head
of his daughter. Accused no.1 (Vithal) also
then gave a blow of axe over the head of the
deceased Anusayabai. When Parvatibai (PW7),
Namdeo (PW10) and Anandrao (PW9) went to
rescue him, they were also beaten by the
accused. Because of beating to the deceased
Anusayabai, she sustained bleeding injuries
over the head. Thereafter, all the accused
persons ran away from the spot of the
incident. Then the informant went to the
Police Station Ardhapur and lodged the F.I.R.
(Exh.147) at about 2.00 p.m. on the same day.
He further states that the land where the
incident took place is standing in the name
of his brother Namdeo (PW10).
13. In his cross examination, he admits
that there was dispute between him and
accused no.1 on account of ownership of trees
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standing on the bund. During his cross-
examination, he was confronted with the
portions marked 'A', 'B' and 'C' of the FI.R.
(Exh.147). So far as the actual incident of
assault is concerned, he states that it did
not happen that accused Pandu (i.e. accused
no.17) inflicted a blow of axe over the
forehead of Anusayabai by which she sustained
a grievous injury and due to it she fell on
the ground and died immediately. The said
admission given in the cross examination runs
contrary to his statement in examination-in-
chief that accused no. 17 gave blow of axe on
the head of Anusayabai. He further states
that though he stated in the F.I.R.(Exh.147)
that accused no.1 gave a blow of axe over the
head of Anusayabai, he could not tell the
reason why the said fact was not appearing in
his F.I.R.(Exh.147). He further states that
it did not happen that the witnesses
including Saheb and Ramrao were beaten with
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the sticks by the accused. The specific
suggestion was given to him as to whether the
accused sustained injuries while cutting the
trees. He states that it did not happen that
while cutting the trees accused persons
sustained injuries. It clearly emerges from
the evidence of the informant that, the same
suffers from inherent contradictions,
omissions and also improvements.
14. Parvatibai (PW7) states that the
accused Pandu inflicted a blow of axe on her
head. Then accused no.1 Vithal gave blow of
axe on the forehead of Anusayabai. Accused
no.1 then took the axe from accused no.4 and
again gave its blow over the head of
Anusayabai. However, during her cross
examination, she was shown her statement
before the police wherein there was no
mention about the said fact. She states that
accused nos.1 and 17 were beating the
informant with the handle of an axe.
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However, the said fact does not find place in
her statement before police. These are the
material omissions in her evidence and
therefore her evidence has been rightly
disbelieved by the trial Court.
15. The prosecution examined Govindrao
Bhojane (PW8), who is the brother of the
informant Madhavrao. He states that accused
no.1 and accused no.17 Pandu started beating
the informant with the handle of axe. Accused
no.1 also beat Anusayabai with the axe.
Because of that beating, Anusayabai died on
the spot. Accused no.4 was armed with an
axe. Parvatibai (PW7) was also assaulted by
the accused persons. However, during his
cross examination, he states that he had been
to the place of offence after about 20
minutes of arrival of the accused in the
field. During cross examination, when his
attention was invited to the portions marked
'A', 'B' and 'C' from his statement given
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before the police, he stated that he did not
tell the contents thereof before the police.
These are the material contradictions. Upon
considering his evidence in its entirety, it
appears that it suffers from improvements,
contradictions and omissions.
16.
The prosecution examined Anandrao
(PW9), who is son of the informant. He states
that accused no.1 and accused no.17 Pandu
beat Anusayabai with the axe over the head
and forehead.
17. The prosecution examined Namdeo
(PW10), who is a cousin of the informant.
Upon careful perusal of his evidence, it
appears that though he states in his
examination-in-chief that accused no.1 gave a
blow of axe over the head of Anusayabai,
during his cross examination, when he was
confronted with his police statement, he
fairly states that he is unable to give
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answer why the said fact was not mentioned in
his statement.
18. The prosecution examined P.S.I.
Uttam Pawar (PW11) (Exh.164), the
Investigation Officer, who narrated the
details about the manner in which he
conducted investigation. When he was asked
during his cross examination that whether any
injury certificates of the accused were
issued and whether he had seen the same
during investigation, he states that he had
not investigated how the accused persons had
sustained injuries.
19. The accused persons suffered the
following injuries. The injury certificate
(Exh.95) of accused no.10 Kalawatibai shows
that she had suffered contusion, abrasion on
front of chest admeasuring 4 x 3 cm. It
supports her defence that she sustained
injury because of hitting of stone on chest.
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The injury certificate (Exh.98) of accused
no.3 Balaji shows that he sustained two
contusions one on back and another on left
patela measuring 6 x 3 cm and 4 x 3 cm. The
injury certificate (Exh.99) of accused no.1
shows that he sustained three contusions on
right side of back, left arm and buttock
having sizes of 6 x 3 cm and 6 x 4 cm and 6 x
3 cm respectively. The injury certificate
(Exh.100) of accused no.4 Dashrath shows that
he sustained abrasion over left clavical
region 4 x 1 cm. The injury certificate
(Exh.97) of accused no.7 Gangadhar shows that
he sustained incised wound over right
parietal region having size 4 x 1 x 1 cm. It
is mentioned in the certificate that the said
injury must have been caused by hard and
sharp object.
20. Therefore, it is clear from his
evidence that the prosecution has not
investigated and explained injuries sustained
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by the accused persons and tried to suppress
genesis of the incident. If the evidence
brought on record by the prosecution is
considered in its entirety and in particular
the evidence of the eye witnesses, the same
suffers from exaggerations, improvements,
contradictions and the omissions which have
been proved through the evidence of PSI Uttam
Pawar (PW11). Post mortem note shows that the
death of Anusayabai was homicidal. But the
prosecution failed to prove that the death
was caused by the accused.
21. So far as the medical evidence,
other evidence in the nature of recovery of
articles and the CA report are concerned, the
same are also not useful to the prosecution
inasmuch as they do not lend support to the
case of the prosecution. The accused persons
have come with the specific case that the
prosecution tried to suppress the genesis of
the incident, inasmuch as, the injuries on
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the persons of the accused have not been
investigated by the Investigation Officer.
The incident has happened in the land of
accused no.1. The injury certificates of
accused nos.1, 3, 4, 5, 7 and 10 are on
record at Exhibits 95 to 100. The prosecution
has utterly failed to bring on record the
cogent and satisfactory evidence so as to
prove the case of the prosecution beyond
reasonable doubt that the accused persons
formed unlawful assembly and in prosecution
of the common object of such assembly, they
killed Anusayabai and assaulted the informant
and other prosecution witnesses.
22. It is not necessary for us to
lengthen the judgment. Upon re-appreciation
of the evidence brought on record, we are of
the considered view that the view taken by
the trial Court was a plausible view and the
same is in consonance with the evidence
brought on record by the prosecution.
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23. In the light of the discussion in
the foregoing paragraphs, there is no
substance in the appeal and hence the same
stands dismissed.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
