Bombay High Court
The State Of Maharashtra vs Dinkar Ramrao Khande And Ors on 4 August, 2017
Bench: T.V. Nalawade
(1) Cri.Appeal No. 44/2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 44/2001
The State of Maharashtra
Through P.S.O. Police Station,
Pimpalner, Tal. & Dist. Beed. .. Appellant.
Versus
1. Dinkar Ramrao Khande
Age : 48 yrs, occu. : agri.,
2. Bhimrao Kondiba Khande
(Dead)
3. Motiram Tukaram Khande
Age : 22 yrs, occu. : agri.,
4. Venkat Shriram Khande
Age : 50 yrs, occu. : agri.,
5. Ramnath Pralhad Khande
Age : 30 yrs, occu. : agri.,
6. Dharmraj Kshirsagar Khande
Age : 35 yrs, occu. : agri.,
7. Sakharam Maroti Khande
Age : 55 yrs, occu. : agri.,
8. Eknath Bhavnath Khande
Age : 18 yrs, occu. : agri.,
9. Murlidhar Ramkishan Khande
Age : 38 yrs, occu. : agri.,
10. Dnyannoba Maroti Khande
Age : 40 yrs, occu. : agri.,
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(2) Cri.Appeal No. 44/2001
11. Ramkishan Shankar Khande
Age : 45 yrs, occu. : agri.,
12. Radhakishan Shankar Khande
Age : 38 yrs, occu. : agri.,
13. Kalyan Ram Khande
Age : 28 yrs, occu. : agri.,
14. Anirudh Kondiba Khande
Age : 45 yrs, occu. : agri.,
15. Mohan Laxman Khande
Age : 35 yrs, occu. : agri.,
16. Mahadev Ganpati Khande
Age : 42 yrs, occu. : agri.,
17. Bhartari Udhav Khande
(Died)
18. Kedarnath Udhav Khande
Age : 25 yrs, occu. : agri.,
19. Rameshwar Udhav Khande
Age : 22 yrs, occu. : agri.,
All r/o Mhalas Jawala, Taluka
and District Beed. .. Respondents.
(Original accused)
***
Mr. R.V. Dasalkar A.P.P. for State.
Mr. S.J. Salunke, Advocate for respondent Nos. 1, 3 to 16, 18
and 19.
Appeal is abated against respondent Nos.2 and 17.
***
W I T H
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(3) Cri.Appeal No. 44/2001
CRIMINAL REVISION APPLICATION NO. 321/2000
Radhakishan s/o Ramrao Raut
Age : 36 yrs, occu. : agri.,
R/o Mhalas Jawala, Taluka
and District Beed. .. Petitioner.
Versus
1. Dinkar Ramrao Khande
Age : 48 yrs, occu. : agri.,
2. Bhimrao Kondiba Khande
(Dead)
3. Motiram Tukaram Khande
Age : 22 yrs, occu. : agri.,
4. Venkat Shriram Khande
Age : 50 yrs, occu. : agri.,
5. Ramnath Pralhad Khande
Age : 30 yrs, occu. : agri.,
6. Dharmraj Kshirsagar Khande
Age : 35 yrs, occu. : agri.,
7. Sakharam Maroti Khande
Age : 55 yrs, occu. : agri.,
8. Eknath Bhavnath Khande
Age : 18 yrs, occu. : agri.,
9. Murlidhar Ramkishan Khande
Age : 38 yrs, occu. : agri.,
10. Dnyanoba Maroti Khande
Age : 40 yrs, occu. : agri.,
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(4) Cri.Appeal No. 44/2001
11. Ramkishan Shankar Khande
Age : 45 yrs, occu. : agri.,
12. Radhakishan Shankar Khande
Age : 38 yrs, occu. : agri.,
13. Kalyan Ram Khande
Age : 28 yrs, occu. : agri.,
14. Anirudh Kondiba Khande
Age : 45 yrs, occu. : agri.,
15. Mohan Laxman Khande
Age : 35 yrs, occu. : agri.,
16. Mahadev Ganpati Khande
Age : 42 yrs, occu. : agri.,
17. Bhartari Udhav Khande
(Died)
18. Kedarnath Udhav Khande
Age : 25 yrs, occu. : agri.,
19. Rameshwar Udhav Khande
Age : 22 yrs, occu. : agri.,
All r/o Mhalas Jawala, Taluka
and District Beed.
20. The State of Maharashtra .. Respondents.
(Accused Nos.1 to 19
are original accused)
***
Mr. R.A. Kulkarni for petitioner.
Mr. S.J. Salunke, Advocate for respondent Nos. 1, 3 to 16, 18
and 19.
Appeal is abated against respondent Nos.2 and 17.
Mr. R.V. Dasalkar, APP for the State.
***
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(5) Cri.Appeal No. 44/2001
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
RESERVED ON : 18.07.2017
PRONOUNCED ON : .08.2017
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. Criminal Appeal No. 44/2001 is filed by the State of
Maharashtra and Criminal Revision Application No. 321/2000 is
filed by Radhakisan Ramrao Raut, who is the original
informant, against judgment and order dated 29.08.2000
passed by Additional Sessions Judge, Beed in Sessions Case
No.91/1998 acquitting accused Nos.1 to 19 of the offences
punishable under Sections 147, 148, 324 and 337 read with
Section 149 of the Indian Penal Code and under Section 135 of
Bombay Police Act.
2. Respondent Nos.1 to 19 are the original accused.
Respondent No. 20 in Criminal Revision Application No.
321/2000 is the State of Maharashtra.
3. This appeal and revision being against one and the
same judgment and order of Additional Sessions Judge, Beed,
(6) Cri.Appeal No. 44/2001
are disposed of by this common judgment.
4. Prosecution case in brief is that the informant
Radhakisan Ramrao Raut (PW-1) is the resident of village
Mhalas Jawala, Taluka and District Beed and on 09.03.1994 at
about 8.30 p.m. near the grocery shop of Gangadhar Raut he
was abused and challenged by accused Mohan Laxman Khande.
On 10.03.1994 at about 8.30 a.m. again the informant went to
the same grocery shop and that time accused Mohan Laxman
Khande abused and challenged him from Maruti temple.
Accused Dnyanoba and Sakharam were also present near
Maruti temple. Later on accused Mohan Khande dragged the
informant upto Maruti temple and started beating him by kick
and fist. Even accused Dnyanoba and Sakharam pelted stones
and thereby injured the informant. After hearing shouts of the
informant, Haribhau Khande, Namdeo Raut, Mahadeo Raut,
Kisan Deorao rushed on the spot to rescue the informant. That
time remaining accused persons came on the spot and they
started pelting stones towards the informant and the persons
who reached on the spot to save the informant. Due to pelting
(7) Cri.Appeal No. 44/2001
of the stones, informant and other persons, who had come on
the spot, sustained injuries. Some persons were also assaulted
by stick blows. Therefore, on the same day informant lodged
report to Police Station, Pimpalner. The injured were referred
to Primary Health Centre, Pimpalner for examination. On the
basis of F.I.R. (Exh. 16) Crime No. 37/1994 was registered at
Police Station, Pimpalner under Sections 147, 148, 337 and 324
read with Section 149 of the Indian Penal Code and under
Section 135 of the Bombay Police Act. The injured were
examined by Dr. B.N. Chalak (PW-4). During the course of
investigation spot panchnama (Exh. 75) of the scene of offence
was prepared and stones as well as sticks lying on the spot were
seized by police. Investigating Officer Mr. S.S. Khan (PW-11)
seized the blood stained clothes of the injured persons. On
14.04.1994 further investigation was handed over to P.S.I.
Salunke who filed charge-sheet in the Court of Judicial
Magistrate, First Class, Beed.
5. A counter criminal case was pending before the
Additional Sessions Court, Beed i.e. Sessions Case No. 69/1995,
(8) Cri.Appeal No. 44/2001
and therefore, this case was also committed to Additional
Sessions Judge, Beed.
6. The then Additional Sessions Judge, Beed framed
charge (Exh. 47) against original accused Nos.1 to 19 for the
offences punishable under Sections 147, 148, 324 and 337 read
with Section 149 the Indian Penal Code and Section 135 of the
Bombay Police Act. Accused pleaded not guilty and claimed
trial.
7. Prosecution examined total 14 witnesses. After
considering the oral and documentary evidence placed on
record by prosecution, the learned trial Court pleased to acquit
all the accused of the offences punishable under Sections 147,
148, 324 and 337 read with Section 149 the Indian Penal Code
and Section 135 of the Bombay Police Act. Therefore, this
appeal and revision application arise.
8. Learned A.P.P. for the State submitted that though
the injured eye witnesses were examined by the prosecution for
(9) Cri.Appeal No. 44/2001
no proper reasons, their testimony was disbelieved by the trial
Court. He pointed out that the witnesses examined by
prosecution are interested and partisan witnesses, on that count
their testimonies cannot be discarded. His next limb of the
argument is that as the accused were aggressor party, right of
private defence is not available to them.
9. On the other hand, learned Advocate for the
respondents submitted that when on the basis of one and the
same incident cross cases are filed against accused and
informant's party, only because witnesses are injured witnesses,
their testimonies cannot be relied upon, when otherwise it is not
free from infirmities, due to material omissions and
contradictions. He submitted that because nature of the injuries
sustained by accused persons are more grave than the
complainant party, only one inference can be drawn that
complainant party was the aggressor and not the accused. He
pointed out that due to assault by complainant party one person
was killed and one of the accused namely Kedari Khande
sustained grievous hurt. According to defence, injuries sustained
(10) Cri.Appeal No. 44/2001
by all accused persons are not explained by the prosecution.
Therefore, benefit of doubt goes in favour of
accused/respondents. He also pointed out our attention towards
omission and contradictions emerged in the testimony of
prosecution witnesses as well as in variance with contents of
F.I.R. He has also drawn our attention towards cross-
examination of Medical Officer to show that certain prosecution
witnesses sustained self inflicted injuries.
10. In the case at hand, admittedly at village Mhalas
Jawala there were two rival parties, one of the informant and
another of accused persons, on account of Grampanchayat
election and Fair Price Shop. Even it is not disputed that on the
basis of one and the same incident dated 10.03.1994 even
complainant party was prosecuted and in that Sessions Case
No.69/1995 some of the accused were convicted, whose appeal
is also decided by this Court simultaneously. Thus, obviously
the so called eye witnesses examined by prosecution, who are
also injured witnesses, are interested and partisan witnesses.
The legal position is absolutely clear that only because the
(11) Cri.Appeal No. 44/2001
witness is interested or partisan, his testimony cannot be
discarded if otherwise it is free from infirmities. However, the
evidence of interested witness must pass the test of close
scrutiny.
11. In the case at hand, the learned defence Counsel has
raised objection regarding delay in lodging F.I.R. Considering
the time of occurrence at about 8.30 a.m. and time of lodging
F.I.R. at Police Station, Pimpalner at about 12.30 p.m., we do
not find inordinate delay in lodging F.I.R. which needs
explanation. On the other hand, both F.I.R. of cross cases are
filed simultaneously, one after another.
12. Learned defence Counsel raised objection that the
names of all accused and their specific overt acts are not
mentioned in the F.I.R. (Exh.16) proved by Radhakisan (PW-1).
However, the law regarding F.I.R. is absolutely clear that F.I.R. is
not an encyclopedia which shall contain each and every minute
details of the occurrence. Therefore, mere non-mentioning of
the names of some of the accused persons cannot be a ground
(12) Cri.Appeal No. 44/2001
to discard the prosecution case in toto. However, if the material
facts are omitted in F.I.R., then in the background of inimical
terms in between the parties, certainly the omission of material
facts from F.I.R. will have some effect.
13. This case being a cross criminal case, initially we
must ascertain which party was the aggressor party. No doubt,
including Radhakisan (PW-1) all witnesses have categorically
deposed that on the date and time of the occurrence, accused
were aggressors who assaulted Radhakisan (PW-1) initially by
fist and kick near Maruti temple and later on by sticks and
stones. Similar allegations are also levelled against informant
and his witnesses in counter criminal case. No doubt, on behalf
of defence no witness is examined to establish their contention.
14. However, defence has relied upon the evidence of
Dr. B.N. Chalak (PW-4) who has also examined the accused
persons and other persons from the rival party. In examination
in chief Dr. Chalak (PW-4) has proved injuries on the bodies of
Dnyandeo Raut, Ram Raut (PW-8), Jalindar Raut, Rameshwar
(13) Cri.Appeal No. 44/2001
Raut (PW-5), Maruti Khande (PW-6), Shivaji Khande (PW-2),
Dharamraj Khande (PW-13), Namdeo Raut (PW-3), Bhujang
Raut (PW-14), Dadarao Raut (PW-7) and Radhakisan Raut (PW-
1). However, from the cross-examination of Dr. Chalak (PW-4),
defence has brought on record that on the same day this
Medical Officer examined Eknath Dada Khande (accused No.8),
Murlidhar Ramkisan Khande (accused No.9) and Dharamraj
Khande (accused No.6). Defence has also filed postmortem
notes (Exh.97) of Uddhav Khande and injury certificates (Exhs.
37 to 45) proved in counter Sessions Case No.69/1995.
Postmortem notes (Exh. 97) shows that deceased Uddhav
Khande sustained contused lacerated wounds on occipital
parietal region upto bone as well as on right parietal region,
with fracture of parietal bone. Even there was dislocation and
fracture of left elbow bone of the deceased. The injury
certificate (Exh. 99) of Kedari (accused No.18) reflects three
contused lacerated wounds, 4 contusions as well as fracture of
right ulna bone.
15. In para 21 of the judgment the learned trial Court
(14) Cri.Appeal No. 44/2001
has given chart of injuries sustained by accused persons and the
deceased. On the other hand, the injuries sustained by
prosecution witnesses in the present case are either simple
lacerated wounds or contusions or abrasions. No prosecution
witness sustained grievous hurt like deceased Uddhav Khande
and Kedari Khande (accused No. 18). Comparative study of the
injuries sustained by both parties indicates that the party of the
accused persons sustained more grave injuries including death
of one person and grievous hurt to accused No. 18. Considering
these circumstances, learned trial Court held that accused
persons were not aggressors, but the party of informant was
aggressor in the present matter. Therefore, the right of private
defence goes in favour of accused and not in favour of
informant's party. In the circumstances, slightest benefit of
doubt should be given to accused persons.
16. Apart from this, on careful analysis of evidence of
prosecution eye witnesses, it emerges that including Radhakisan
(PW-1), PW-2, PW-3, PW-5, PW-6, PW-7, PW-8, PW-13 and PW-
14 injured eye witnesses and other eye witnesses have
(15) Cri.Appeal No. 44/2001
materially improved their testimonies before the trial Court.
The major portion of their allegation in examination in chief is
proved as either material omission or contradiction and these
omissions and contradictions are not minor discrepancies, but it
goes to the root of their basic version. In other words, the
omissions and contradictions emerging in the testimony of every
eye witness shakes the basic version of this witness regarding
assault by accused persons to the informant and other injured
witnesses. For example, from the cross-examination of
Radhakisan (PW-1) it emerges that his version in examination-
in-chief regarding stone pelted by accused person on his
forehead above left eye, oozing of blood from forehead and
staining of clothes, as well as pelting of stone by accused
Sakharam, the place of injury, involvement of accused Bhima
Khande, Dinkar Khande, Bhartari Khande, Rameshwar Khande,
Eknath Khande are proved as material omissions. Even the
contention of this witness that accused came with sticks and
stones on the spot is proved as material improvement. Even
appearance of Gopinath Raut, Dnyandeo Raut, Rameshwar
Khande, Ram Raut, Dharmraj Raut, Jalindar Raut, Namdeo
(16) Cri.Appeal No. 44/2001
Raut, Dadarao Raut, Shivaji Khande, Maroti Khande on the spot
to rescue this witness is one of the material omission. Assault
by Mohan Khande, Dnyanoba Khande and accused Sakharam
Khande to this witness by stick as well as pelting of stone by
accused Ramkishan Khande on the head of Namdeo Raut is
proved as material omission. The infliction of stick blow by
accused Venkat and stone blow on the head of Shivaji Khande
causing bleeding injury as well as assault by accused Murlidhar
Khande by stick on the back of Gopinath Raut is also proved as
material omission. Pelting of stone by accused Dnyanoba
Khande at Gopinath Raut causing injury on the backside of the
left ear is also a material omission. Even the contention of this
witness that Kalyan Khande, Bhartari Khande inflicted stick
blow on the left knee joint of Rameshwar Raut and Bhartari
Khande hit the head of Rameshwar with the help of stone is also
proved as material omission. The next contention of this
witness that accused Dharamraj Khande held Maruti Khande
and inflicted stick blow on his back is also proved as
improvement. Pelting of stone by Dnyanoba Khande and
causing injury to Maruti Khande on his left arm as well as
(17) Cri.Appeal No. 44/2001
pelting of stone from the house of Dnyanoba Khande is also
proved as omission. Even the contention of this witness that his
party was not armed with weapon and due to stone pelting by
accused complainant's party ran away from the spot, is also
proved as omission. Similarly, each and every eye witness of the
incident has totally improved their testimonies on every
material particulars. There are material contradictions in the
testimonies of prosecution witnesses which shakes their basic
versions. In the F.I.R. itself Radhakisan (PW-1) has mentioned
that he did not remember who was beating whom and he
cannot state who sustained which injury on which part and by
which weapon. No doubt, these contents were denied by this
witness and it is proved as contradiction in the cross-
examination of Investigating Officer P.S.I. Khan (PW-11). Thus,
when the evidence of these all interested and partisan witnesses
is full of material omissions and contradictions on material
particulars, in the background of filing of cross cases, the
testimonies of these witnesses cannot be relied upon to base the
conviction of accused persons. The learned trial Court rightly
rejected the oral evidence of these all prosecution witnesses.
(18) Cri.Appeal No. 44/2001
17. Another important aspect considered by the learned
trial Court is that in the cross-examination of Dr. Chalak (PW-4)
it has been brought on record that injury No.3 on the body of
witness Ram Raut, injury of Jalindar Raut, injury No. 2 of
Rameshwar Raut, injury Nos.1 to 3 of Dharmraj Raut, injury
No.2 of Bhujang Raut and injury of Dadarao Raut may be self
inflicted. This witness has also admitted that contused
lacerated wounds are possible if a person during hustle and
bustle falls and their respective portions of the body comes in
contact with hard and blunt substance. Thus, the possibility
cannot be ruled out that the injuries found on the body of above
referred prosecution witnesses are self inflicted or caused
during fall on the ground during hustle and bustle at the time of
occurrence. On the other hand, finding of such self inflicted
injuries on the body of of certain prosecution witnesses is
sufficient to hold that the prosecution is suppressing truth from
the Court and it is not honest regarding disclosure of the
incident. In the circumstances, the finding recorded by the
learned trial Court for giving benefit of doubt to the accused
persons cannot be termed as impossible view taken by the trial
(19) Cri.Appeal No. 44/2001
Court.
18. In other words, the view taken by trial Court while
acquitting the accused persons is possible view, and therefore,
this Appellate Court while dealing with correctness of the
acquittal of accused cannot interfere. It follows that this appeal
fails and deserves to be dismissed. Hence, the following order.
ORDER
Criminal Appeal No. 44/2001 as well as
Criminal Revision No. 321/2000 are
dismissed.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
***
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