Bombay High Court
Subrao Bhimrao Kolekar And Ors vs The State Of Maharashtra on 18 August, 2017
Bench: T.V. Nalawade
(1) Cri.Appeal No. 75/2000
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 75/2000
1. Subrao Bhimrao Kolekar
Age : 38 years,
2. Shrimant Nivrati Kolekar
Aged : 29 years
3. Baliram Goroba Kolekar,
Age : 28 years
4. Prakash Dadarao Bondgar
Age : 35 years
5. Bibishan Dagadu Kolekar
Age : 24 years
6. Kalyanrao Bhimrao Kolekar
Age : 29 years
7. Venkat Nivrati Kolekar
(Appeal abated against
appellant No.7 as per
order of the Court dated
21.01.2014).
8. Agatrao Nivrati Kolekar
Age : 49 years
9. Vishnu Dhondiba Kanade
Age : 35 years
All r/o Ter, Taluka and
District Osmanabad. .. Appellants.
Versus
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(2) Cri.Appeal No. 75/2000
The State of Maharashtra
Copy served on A.P.P., High
Court Bench at Aurangabad. .. Respondent.
***
Mr. V.D. Salunke, Advocate for appellant Nos.1 to 6, 8 and 9.
Mr. S.D. Ghayal, A.P.P. for the State.
Appeal is abated against respondent No.7 as per order of
this Court dated 21.01.2014.
***
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
RESERVED ON : 26-07-2017.
PRONOUNCED ON : 18-08-2017.
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. This appeal is directed against the judgment and
order of conviction passed by 2nd Additional Sessions Judge,
Osmanabad in Sessions Case No. 94/1993 convicting accused
Nos.1 to 9 for the offences punishable under Sections 147, 148,
324 and 302 read with Section 149 of the Indian Penal Code
(For short "I.P.C.").
2. Appellants are original accused Nos.1 to 9 and
respondent is the State of Maharashtra.
(3) Cri.Appeal No. 75/2000
3. Prosecution case, in brief, is that the accused and
informant party are residents of Kolekar Wadi, Taluka
Osmanabad. Both parties are at inimical terms on account of
dispute of agricultural land in between them. On 05.07.1992 at
about 9.00 p.m. initially accused No.7 Venkat and accused No.6
Kalyan started abusing the informant's family because the
informant refused to withdraw criminal case filed against the
rival party. After some time, accused Nos.1 to 9 came in front of
the house of informant Devidas Kolekar (PW-9) by holding
sticks, chain and hunter in their hands. Accused persons started
beating the informant Devidas (PW-9), his brother Vasant
Kolekar, father Baburao Kolekar, aunt Shantabai Kolekar, cousin
sister Sangita Shendge, one Muktabai Kolekar by chain, sticks
and hunter. Due to that assault, these all persons sustained
injuries and therefore immediately Devidas Kolekar (PW-9)
approached to Police Station, Dhoki and lodged F.I.R. (Exh.
105) against the accused persons. On the basis of this
complaint Crime No.104/1994 was registered against accused
persons under Sections 147, 148, 324 and 326 read with
Section 149 of I.P.C.
(4) Cri.Appeal No. 75/2000
4. Police referred the injured persons to Primary Health
Centre, Ter. Dr. P.R. Kulkarni (PW-2) examined the injured.
Baburao Kolekar sustained serious head injury, and therefore, he
was referred to Civil Hospital, Osmanabad where Dr. R.G. Gute
(PW-17) examined him. On x-ray examination, fracture of skull
of Baburao was detected. His condition deteriorated and at last
he succumbed to his injuries at Government Hospital, Solapur.
Dr. A.S. Kanki (PW-1) performed postmortem examination of
the dead body of Baburao Kolekar and issued postmortem notes
(Exh. 84). By that time P.S.I. Kulkarni (PW-16) started
investigation of this crime and prepared spot panchnama
(Exh.125) and map (Article-A). Accused were arrested and
bicycle chain was seized from accused No.9 Vishnu Kanade. 8
sticks were recovered from the remaining accused persons
under panchnamas (Exh.109 to 116). After death of Baburao
Kolekar on 17.07.1992, offence was registered under Section
302 of I.P.C. against accused persons. Blood stained clothes of
deceased Baburao were seized under panchnama (Exh.102).
Blood stained clothes of Kalidas Kolekar and Muktabai were also
seized. After completion of investigation, charge-sheet was
(5) Cri.Appeal No. 75/2000
submitted before the Chief Judicial Magistrate, Osmanabad.
5. Offence punishable under Section 302 of I.P.C. being
exclusively triable by the Court of Sessions, this case was
committed to Sessions Court, Osmanabad.
6. The then Sessions Judge, Osmanabad framed charge
(Exh. 56) against original accused Nos.1 to 9 for the offences
punishable under Sections 147, 148, 324 read with Section 149
and 302 read with Section 149 I.P.C. Charge was read over to
accused. Accused pleaded not guilty and claimed trial.
7. Prosecution examined total 17 witnesses. After
considering the oral and documentary evidence placed on
record by prosecution, the learned trial Court pleased to convict
accused Nos.1 to 9 for the offences punishable under Sections
147, 148, 324 read with Section 149 and 302 read with Section
149 I.P.C. For the offence punishable under Section 148 of I.P.C.
rigorous imprisonment for one month and fine of Rs. 1000/-
each was imposed. No separate sentence was imposed for the
(6) Cri.Appeal No. 75/2000
offence punishable under Section 147 of I.P.C. Rigorous
imprisonment for three months and fine of Rs. 2,000/- each was
also imposed for the offence punishable under Section 324 read
with Section 149 of I.P.C. and life imprisonment and fine of Rs.
2,000/- each was imposed for the offence punishable under
Section 302 read with Section 149 of I.P.C. against all the
accused persons. Therefore this appeal arises.
8. Heard learned Advocate for the appellants and
learned A.P.P. for the State.
9. Learned Advocate for the appellants assailed the
judgment passed by trial Court on various grounds which would
be considered in subsequent part of the judgment at appropriate
stage.
10. In the case at hand, prosecution case is based on
direct evidence of eye witnesses as well as circumstantial
evidence. At the outset we must observe that the circumstantial
evidence placed on record in the form of spot panchnama
(Exh.125) is of no help because the spot panchnama itself
(7) Cri.Appeal No. 75/2000
shows that no signs of struggle were found on the spot of
incident. Another part of the circumstantial evidence is the
seizure of one bicycle chain and 8 sticks from the possession of
accused persons. However, both panchas namely Sopan Bhosale
(PW-7) and Abdul Rehman (PW-13) on all seizure panchnamas
(Exhs. 108 to 116) have turned hostile and nothing could be
elicited in their cross-examinations to prove the seizure of any
incriminating article from the possession of accused.
Investigating Officer P.S.I. Kulkarni (PW-16) vaguely stated
before the Court that on 09.07.1992 he seized cycle chain from
accused No.9 Vishnu and 8 sticks from remaining accused Nos.1
to 8 (seizure memos Exhs. 109 to 116). Even if this testimony
of P.S.I. Kulkarni (PW-16) is accepted as it is, even then it is of
no help to the prosecution to connect the accused with the
alleged crime, because all these seizure memos show that no
blood stains were found on these weapons at the time of
seizure. Otherwise also, P.S.I. Kulkarni (PW-16) did not take
pains to refer these weapons of the offence to Chemical
Analyzer to ascertain as to whether any traces of human blood
can be detected over it. In the circumstances, the circumstantial
(8) Cri.Appeal No. 75/2000
evidence placed on record by the prosecution in the form of
seizure of weapons of the offence is absolutely useless piece of
evidence.
11. Thus, direct evidence of eye witnesses and medical
evidence is to be examined to ascertain whether it is sufficient
to establish the charges against accused beyond reasonable
doubt.
12. Subhash Kolekar (PW-3), Kalidas Kolekar (PW-4),
Sanjay Kolekar (PW-6), Sangita Shendge (PW-8), informant
Devidas (PW-9) and Vasant Kolekar (PW-10) are the eye
witnesses. Out of these witnesses, Subhash (PW-3), Sanjay
(PW-6), Devidas (PW-9), Sangita (PW-8) and Vasant (PW-10)
are the injured witnesses. No doubt, these all eye witnesses are
the near relatives of deceased Baburao Kolekar. So also, on
account of civil dispute in between the parties, these witnesses
can be treated as interested and partisan witnesses. However,
on that count alone the testimonies of these related witnesses
cannot be discarded. Only the evidence of such witnesses shall
(9) Cri.Appeal No. 75/2000
pass the test of close scrutiny.
13. In the case of 'Mano Dutt and another Versus State
of Uttar Pradesh ' , reported in [(2012) 4 SCC 79], the Apex
Court ruled that, "where witness to the occurrence has himself
been injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness that
comes with a built-in guarantee of his presence at the scene of
the crime and is unlikely to spare his actual assailant(s) in order
to falsely implicate someone. 'Convincing evidence is required to
discredit an injured witness'".
In view of this set legal position, presence of these
injured eye witnesses on the spot of incident cannot be doubted.
Unless there are acceptable reasons, their testimony cannot be
disbelieved, if otherwise it is reliable.
14. Learned defence Counsel has raised objection that in
F.I.R. (Exh. 105) lodged by informant Devidas (PW-9) no
weapons of offences are mentioned in the hands of particular
accused persons and there is no specific allegation as to exactly
(10) Cri.Appeal No. 75/2000
which accused persons caused injuries to deceased Baburao
Kolekar. His contention is that all allegations levelled against
accused are general in nature.
15. Learned A.P.P. for the State replied that F.I.R. need
not mention these all minute particulars.
16. We do not find any substance in the objection raised
by learned defence counsel for the simple reason that the F.I.R.
is nothing but information to the police regarding occurrence of
the cognizable offence within jurisdiction of that police station.
It is not the encyclopedia which includes each and every minute
details of the occurrence. We may refer "Mukesh & anr. Vs.
State of NCT of Delhi & ors." reported in (AIR 2017 SC 2161),
wherein the Apex Court ruled that, F.I.R. is not an encyclopedia
which is expected to contain all details of prosecution case, it
may be sufficient if broad facts of prosecution case alone appear.
Merely because names of accused persons not named in F.I.R.,
serious doubt against case of prosecution cannot be raised.
(11) Cri.Appeal No. 75/2000
17. Otherwise also, after careful examination of the
contents of F.I.R. (Exh. 105) proved by informant Devidas (PW-
9), it emerges that in F.I.R. names of all accused Nos.1 to 9 are
specifically mentioned. It is also mentioned that at the time of
occurrence accused were holding chain, sticks and hunter in
their hands. Even the names of injured persons are specifically
mentioned. It must be noted that informant Devidas (PW-9) has
specifically mentioned in F.I.R. that during the occurrence due
to assault by accused persons, his father (deceased Baburao
Kolekar) sustained injuries. Thus, obviously all required
particulars are mentioned in the F.I.R. to make out the case of
commission of cognizable offence by accused persons. Law does
not speak that in F.I.R. all minute details, such as, particulars
regarding which accused caused which injury to which person,
need to be mentioned. Such minute particulars can be
ascertained from the oral testimony of injured witnesses and
other eye witnesses. The nature of injuries sustained by
prosecution witnesses can be proved on the basis of medical
evidence. Thus, we do not find any substance in the above-
referred objection raised by learned Advocate for the appellants.
(12) Cri.Appeal No. 75/2000
18. Informant Devidas (PW-9) deposed before the Court
that there was dispute in between accused No.2 Shrimant and
his uncle Abhiman on account of landed property. From his
testimony it is emerged that on the date of incident accused
No.2 Shrimant damaged the crops of his uncle Abhiman
Kolekar. Because the report of the occurrence was lodged to
Police Station, Dhoki on the date of the incident, at about 8.30
p.m. when this witness was present in his house alongwith his
brother Vasant Kolekar (PW-10) and father Baburao Koleker, all
accused came in front of the house of this witness and initially
started abusing. Thereafter when this witness proceeded to his
field with brother Vasant, that time on request by Subhash (PW-
3), this witness went to the house of his uncle Subhash (PW-3)
alongwith his brother Vasant (PW-10). That time accused No. 7
Venkat dragged Vasant out of the house and inflicted iron bar
blow on the body of Vasant. Accused No.2 Shrimant, accused
No.3 Baliram and accused No.5 Bibishan started beating
Devidas (PW-9) by sticks and chain. Hearing the hue and cry of
this witness when deceased Baburao rushed on the spot,
accused No. 9 Vishnu assaulted Baburao by chain. Accused
(13) Cri.Appeal No. 75/2000
No.8 Aghatrao assaulted Baburao by axe and other accused
assaulted by sticks. This witness specifically named accused
No.4 Prakash and accused No.6 Kalyanrao as the persons who
assaulted deceased Baburao by sticks. From the testimony of
this witness it emerges that one Sangita Shendge (PW-8) and
his other family members tried to rescue him, that time accused
No.4 Prakash inflicted stick blow on the body of Sangita. Vasant
Kolekar (PW-10) sustained injuries on his forehead and
deceased Baburao sustained injuries on his head, back and
chest. Even Subhash (PW-3) and Sanjay (PW-6) sustained
injuries due to assault by accused persons. As this witness and
his family members sustained injuries, this witness lodged
report (Exh.105) and the injured were referred for medical
examination. This witness has identified all the accused persons
before the Court.
19. In fact, identification of the accused and their
presence is not disputed by defence. On the other hand, as per
the statement of accused No.2 Shrimant recorded under Section
313 of the Code of Criminal Procedure, at the time of incident
(14) Cri.Appeal No. 75/2000
all the accused persons were assaulted by informant and his
family members. Therefore, the question of presence of accused
on the spot of the incident is an admitted fact in between both
the parties. The only question to be determined is that, which
party is telling the truth and which party was aggressor.
20. In cross-examination of informant Devidas (PW-9)
nothing could be elicited which creates doubt about truthness of
the testimony of this witness. Even all details of the occurrence
deposed by this witness are also fully corroborated by his
immediately lodged F.I.R. (Exh. 105) on every material
particular.
21. The testimony of informant Devidas (PW-9) is also
fully corroborated by Subhash (PW-3) who has repeated same
story and who has given every particular regarding assault by
each accused and weapons in their hand. From the testimony of
Subhash (PW-3) it emerges that accused No.9 Vishnu was
holding chain in his hand and accused No.9 Vishnu inflicted
chain blow on the back of this witness and same accused
(15) Cri.Appeal No. 75/2000
inflicted chain blow on the head of Vasant Kolekar (PW-10).
This witness has specified that deceased Baburao was assaulted
by accused No.9 Vishnu, accused No.4 Prakash, accused No.1
Subrao, accused No. 7 Venkat, accused No.2 Shrimant, accused
No. 5 Bibishan, accused No.6 Kalyanrao and others by chain
and sticks. This witness has also made it clear that due to
assault by accused, deceased Baburao sustained head injury and
he fell on the spot. Muktabai and Sangita went to intervene,
and at that time they were also assaulted by accused persons. It
was tried to suggest in the cross-examination of this witness
that the incident occurred in front of the house of accused No.1
Subrao. However, this suggestion was specifically denied by
this witness. Certain improvements are pointed out by learned
defence Counsel in the testimony of Subhash (PW-3), however,
those improvements are not material improvements which
shakes the basic version of this witness. Therefore, importance
cannot be given to such minor improvements.
22. Sanjay Kolekar (PW-6) and Sangita Shendge (PW-8)
have also fully corroborated the testimony of informant Devidas
(16) Cri.Appeal No. 75/2000
(PW-9) and Subhash Kolekar (PW-3) on every particular. Sanjay
(PW-6) has only improved his version by deposing that accused
No.2 Shrimant was holding stone in his hand. However, such
minor improvement needs no more consideration when his
overall testimony is consistent with the evidence of other
injured witnesses. Sangita (PW-8) has also deposed before the
Court regarding sustaining the injuries by her on her eye due to
chain blow by accused No.9 Vishnu and stick blow inflicted by
accused No.4 Prakash.
23. Oral evidence of these injures eye witnesses is fully
corroborated by medical evidence of Dr. P.R. Kulkarni (PW-2),
the then Medical Officer, P.H.C. Ter. This witness has proved
multiple contusions of various sizes and direction on the left
shoulder and left side of spine of Vasant Kolekar (PW-8),
contused lacerated wound on lateral angle of left eye and two
contusions on occipital region and lumber region of Vasant
Kolekar. Dr. P.R. Kulkarni (PW-2) also found the following
injuries on the body of injured Baburao Kolekar.
(i) Multiple contusions, red in colour on left shoulder and left
scapular region of different sizes and directions.
(17) Cri.Appeal No. 75/2000
(ii) Contused lacerated wound with bleeding on left parietal
region of size 5 c.m. X 0.5 c.m. X boon deep.
(iii) Contused lacerated wound with bleeding above right
eyebrow of size 1 c.m. X 0.5 c.m. X 0.3 c.m.
Dr. P.R. Kulkarni (PW-2) has also proved following
injuries on the body of Devidas (PW-9) :-
(i) Multiple contusions, red in colour on right shoulder and
right scapular region of different sizes and directions.
(ii) Contused lacerated wound with bleeding on right parietal
region posterior aspect of size 5 X 0.2 X 0.2 c.m.
(iii) Contused lacerated wound with bleeding on right
parietal region medially of size 8 X 0.3 c.m. X bone deep.
This witness has also proved following injuries on
the body of Sanjay Kolekar (PW-6) :-
(i) Abrasion, red in colour at the base of right third finger of
size 1 X 0.2 c.m.
(ii) Abrasion, red in colour on right knee of size 1 X 0.5 c.m.
(iii) Contused lacerated wound with bleeding above right
eyebrow of size 1 c.m. X 0.5 c.m. X 0.3 c.m.
This witness also proved following injuries on the
body of Subhash Bhagwan Kolekar (PW-3) :-
(i) Abrasion, red in colour left left shoulder of size 1 X 1 c.m.
(ii) Abrasion, red in colour on left arm of size 2 X 0.5 c.m.
(iii) Abrasion, red in colour on left arm of size 5 X 0.1 c.m.
(18) Cri.Appeal No. 75/2000
24. It is to be noted that Dr. P.R. Kulkarni (PW-2) has
specifically opined that multiple contusion of different sizes and
directions found on the body of Vasant Kolekar (PW-10),
Baburao Kolekar (deceased) are possible due to chain and
contused lacerated wounds are possible due to stick. This
witness has also proved the fracture of skull of Baburao Kolekar
(M.L.C. Exh.88). According to this witness, the injuries
sustained by Baburao Kolekar were grievous and injuries
sustained by other witnesses were simple in nature.
25. In cross-examination of this witness, it has been
brought on record that wheal mark is not necessary if the blow
is given by chain. It does not mean that there cannot be wheal
mark on the body of any witness due to chain blow. In the
cross-examination of this witness only defence has proved that
the injuries found on the body of accused No.1 Subrao, accused
No.2 Shrimant, accused No.9 Vishnu are possible due to stick
blow. Though the opportunity was available with the defence
Counsel, he has not brought on record exact nature and age of
injuries sustained by these accused persons. Injury certificates
(19) Cri.Appeal No. 75/2000
of accused persons (Exhs.97, 98, 99 and 100) though placed on
record, the contents of these certificates are not established by
defence Counsel. Mere exhibiting document does not prove its
contents. Therefore, on the basis of only injury certificates of
the accused persons, defence cannot prove the exact nature and
age of injuries sustained by accused.
26. Even assuming that the injury certificates of the
accused can be read in evidence, even then after going through
these certificates, it emerges that the injuries sustained by
accused are simple in nature. On the other hand, the nature of
injuries proved on the body of deceased Baburao as well as
other witnesses are comparatively grave than the injuries of
accused persons. Even during the incident deceased Baburao
Kolekar was killed at the hands of accused. Even the place of
occurrence is not in front of the house of accused No.1 Subrao,
but the spot panchnama (Exh.125) proved by Fulchand
Thombre (PW-11) shows that the spot of incident is on the
southern side of the house of Subhash (PW-3), where the
informant Devidas (PW-9) was present at the time of
(20) Cri.Appeal No. 75/2000
occurrence. House of Nivrutti is also shown towards western
side of the spot of incident. Thus, it is clear that the spot of
incident is not in front of the house of any accused person, but
it is near the house of uncle of informant. In the circumstances,
even the evidence of Devidas (PW-9) and Subhash (PW-3) is
read together alongwith spot panchnama (Exh.125), it can be
gathered that the accused persons came near the house of
Subhash (PW-3) where Devidas (PW-9) and his brother were
present. In other words, accused came towards the side of
residence of prosecution witness Subhash (PW-3). Even F.I.R.
lodged by accused is not proved by defence. In view of these
circumstances together with grave injuries sustained by Baburao
Kolekar, who is the father of informant Devidas (PW-9) and
brother Subhash (PW-3), we have no hesitation to hold that
prosecution has proved that accused were the aggressors.
Therefore, right of private defence is not available to accused
persons only because minor injuries were noticed on the body of
some of the accused persons.
27. Learned defence Counsel assailed the oral evidence
(21) Cri.Appeal No. 75/2000
of prosecution witnesses on the ground of improvements.
However, as observed above, the improvements pointed out by
learned defence Counsel do not go to the core of contention of
prosecution witnesses that accused persons attacked and caused
grave hurt to Baburao Kolekar (deceased).
28. To prove that the injuries sustained by Baburao
Kolekar at the hands of accused resulted into his death,
prosecution has examined Dr. R.G. Gute (PW-16). He deposed
that on 11.07.1992 he examined Baburao Kolekar at Civil
Hospital, Solapur and found fracture of the skull of Baburao.
This witness has opined that the injury sustained by Baburao is
possible due to blow of chain or stick. Despite cross-
examination, learned defence Counsel could not falsify this
opinion of this expert witness. In addition to this, prosecution
has examined Dr. A.S. Kanki (PW-1) who performed
postmortem examination of the dead body of Baburao Kolekar
on 17.07.1992 at Solapur. This witness has proved postmortem
report (Exh. 84) of the dead body of Baburao as well as the
following external and internal injuries.
(22) Cri.Appeal No. 75/2000
External Injuries :-
(i) Sutured wound (stitches removed) on the scalp left
frontal region, 2.5 inch length oblique.
(ii) Sutured wound above right eyebrow ½ inch length.
(iii) Contusion on lateral aspect of left shoulder of size 3 X 1.5
inch, dark brown.
(iv) Contusion at left infra clavicular region of size 2.5 X 2.5
inch, dark brown.
(v) Contusion at right lateral aspect of chest near nipple of
size 3.5 inch X 3.5 inch, dark brown.
(vi) Contusion on anterior aspect right arm of size 3 X 1 inch,
dark brown, vertical.
(vii) Abrasion (scratch) near right coastal margin of 2 inch in
length, scab formed.
(viii) Abrasion, anterior aspect right knee of size ½ X ½ inch
with scab.
(ix) Bed sore on right buttock of size 3 X 2 inch.
Internal Injuries :-
Haematoma under all the scalp radiating
fracture frontal, both parietal and left
temporal bone. Subdural haematoma all over
brain more on left cerebrum. Brain was
congested oedematous with sloghing at left
fronto parietal lobe in the cortex.
Dr. Kanki (PW-1) opined that the cause of death of
(23) Cri.Appeal No. 75/2000
Baburao Kolekar was "due to shock and haemorrhage due to
fracture of skull with subdural haematoma". According to this
witness, the head injury found on the body of Baburao Kolekar
was sufficient to cause death in ordinary course of nature and
this injury is possible due to stick blow. No doubt, in cross-
examination this witness has admitted that in case of assault of
chain there is possibility of mark of chain and he could not find
chain mark or hunter mark on the body of Baburao. However,
this admission does not falsify the contention of eye witnesses
for the simple reason that Dr. Kanki (PW-1) examined the dead
body of Baburao on 17.07.1992 i.e. after 12 days from the date
of occurrence. It cannot be ignored that due to passage of 12
days, the chain marks which were initially visible and which are
mentioned in the M.L.C. Certificate (Exh.88) of Baburao
Kolekar, might have extinguished.
29. Thus, after considering the oral evidence of
informant Devidas (PW-9), Subhash Kolekar (PW-3), Sanjay
Kolekar (PW-6) and Sangita Shendge (PW-8) together with
medical evidence on record, we have no hesitation to hold that
(24) Cri.Appeal No. 75/2000
prosecution has proved that due to head injuries caused to
Baburao due to assault by accused Nos.1 to 9, he died of
homicidal death.
30. Learned defence Counsel submitted that the
occurred incidence is only free fight in between two rival parties
and there was no motive to kill deceased Baburao Kolekar. His
next contention is that in case of free fight accused persons
cannot be convicted with the aid of Section 149 of I.P.C. He
placed reliance on "Anant
a Kathod Pawar Vs State of
Maharashtra", reported in (1997 DGLS (Soft.) 1039) wherein
the Apex Court ruled that, "in the case of free fight between two
groups, there is no scope for convicting the members of one
group under Section 147 and 148 of I.P.C. and for other
substantive offences with the aid of Section 149 of I.P.C.
Accused can be made liable for their individual acts".
31. Further, the learned defence Counsel relied on
"Lakshmi Singh Versus State of Bihar" reported in (1976
DGLS (Cri.) Soft 16
) wherein the Apex Court ruled that, "the
(25) Cri.Appeal No. 75/2000
omission on the part of the prosecution to explain the injuries
on the person of the accused assumes much greater importance
where the evidence consists of interested or inimical witnesses
or where the defence gives a version which competes in
probability with that of the prosecution one".
32. In "Bharat Soni Versus State of Chhatisgarh",
reported in (2012 DGLS (Soft.) 559), relied by defence
Counsel, the benefit of doubt was given considering the
particular circumstances of that case.
33. Even the last case relied by learned defence Counsel
"Kuldip Yadav and others Versus State of Bihar" reported in
(2011 DGLS (Soft.) 351) is of no help to the defence due to
altogether different facts before the Apex Court.
34. Though it is the contention of defence that this was
the case of free fight in between accused and informant party.
Accused persons cannot bring on record that at the time of
occurrence sudden fight arose in between accused and
(26) Cri.Appeal No. 75/2000
informant party. The F.I.R. lodged by accused is not proved by
defence. No defence witness is examined by accused. On the
other hand, as accused assembled together near the house of
Subhash Kolekar (PW-3) with arms in their hand, when Devidas
(PW-9) and his brother were present in that house, it indicates
that after knowing the presence of Devidas (PW-9) and his
brother at the house of Subhash (PW-3), accused came and
gathered near the house of Subhash (PW-3) with deadly
weapons. It indicates that it was pre-mediated attack and it was
not sudden free fight in between these two rival groups.
Otherwise also, mere filing of copies of injury certificates and
copy of F.I.R. accused cannot prove assault to them by the
informant's party. Accused ought to have examined witnesses to
prove the contents of F.I.R., as well as occurrence of the alleged
incident by examining defence witness, as contended by them at
the stage of argument and at the stage of recording statement
under Section 313 of Cr.P.C. Without any acceptable material
on record supporting the contention of accused persons, merely
on the basis of filing of counter criminal case against the
informant and other witnesses, conclusion cannot be drawn that
(27) Cri.Appeal No. 75/2000
it was the case of free fight. Therefore, the above-cited
authorities relied by defence Counsel are not applicable in the
case at hand.
35. In the case at hand, we have to examine whether the
accused can be roped together with the aid of Section 149 of
I.P.C. and under which section accused can be convicted if they
are found guilty for causing homicidal death of Baburao
Kolekar.
36. As observed above, deceased Baburao Kolekar is the
father of informant Devidas (PW-9). Even inimical terms in
between the family of accused and family of informant Devidas
is admitted fact. On the day of incident in the evening some
dispute arose in the field of Abhiman, who is uncle of Devidas,
and report was lodged to Police Station, Dhoki. This contention
of Devidas (PW-9) is not disputed in his cross-examination.
This was one of the root cause for occurrence of the incident.
Evidence on record also indicates that all accused went near the
house of Subhash Kolekar (PW-3) where Devidas (PW-9) and
(28) Cri.Appeal No. 75/2000
his brother Venkat (PW-10) were present. That time accused
No.9 Vishnu was holding chain in his hand and other accused
were holding sticks in their hands. After initial abusing, accused
persons started beating Subhash Kolekar (PW-3) and Vasant
Kolekar (PW-10) and other accused started beating Devidas
Kolekar (PW-9) by stick and chain. That time Baburao Kolekar
reached on the spot. He was also assaulted by accused persons
by sticks and chain, which resulted into his death. These
circumstances indicate that when accused assembled together
near the house of Subhash Kolekar (PW-3) where Devidas (PW-
9) and his brother were present and when accused were armed
with deadly weapons like sticks and chain, definitely that
assembly was an unlawful assembly and common object of that
assembly can be gathered as to teach lesson to informant and
his uncle Subhash (PW-3). No doubt, till that moment common
object of the unlawful assembly by accused was not to kill
Baburao. However, as accused persons started assaulting
Baburao by sticks and chain after his arrival on the spot, it can
be gathered that unlawful assembly of the accused developed
common object on the spot to cause injuries to Baburao Kolekar.
(29) Cri.Appeal No. 75/2000
In a similar circumstances, in the case of 'Bhagwan Singh and
others Versus State of M.P'. reported in (AIR 2002 SC 1621),
the Apex Court observed that,
"Common object, as contemplated by Section 149 of the
Indian Penal Code, does not require prior concert or
meeting of minds before the attack. Generally no direct
evidence is available regarding the existence of common
object which, in each case, has to be ascertained from the
attending facts and circumstances. When a concerted
attack is made on the victim by a large number of
persons armed with deadly weapons, it is often difficult
to determine the actual part played by each offender and
easy to hold that such persons attacked the victim had
the common object for an offence which was known to be
likely to be committed in prosecution of such an object.
In this case the accused persons have been proved to be
on inimical terms with the complainant-party. The
enmity between the parties had been aggravated on
account of litigation with respect to the dispute over the
mango trees. Accused persons who came on the spot are
shown to have come armed with deadly weapons. The
facts and circumstances of the case unequivocally prove
the existence of the common object of such persons
forming the unlawful assembly who had come on the spot
and attacked the complainant party in consequence of
which three precious lives were lost. The High Court was,
therefore, justified in holding that the accused persons,
involved in the occurrence, had shared the common
object".
37. Thus, in view of law laid down by the Apex Court,
when accused assembled near the house of brother of Baburao
Kolekar with deadly weapon in their hands and when after
arrival of Baburao Kolekar they assaulted him and inflicted stick
(30) Cri.Appeal No. 75/2000
blow and chain blow on his head as deposed by eye witnesses
and supported by medical evidence, common object of this
unlawful assembly was certainly to cause grave hurt to Baburao
Kolekar. Accused may not be intended to cause death of
Baburao, however, when they had chosen head, which is a vital
part of the body of Baburao Kolekar, it can be inferred that
accused persons had knowledge that their assault may result
into death of Baburao Kolekar. Therefore, though offence
punishable under Section 302 read with Section 149 of I.P.C. is
not made out against accused persons, prosecution has
established guilt of accused Nos.1 to 9 for the offence
punishable under Section 304-II read with Section 149 of I.P.C.
38. As observed above, the prosecution has established
that on the date and time of incident accused formed unlawful
assembly near the house of Subhash Kolekar (PW-3) with
common object to cause hurt or injury to informant party. That
time accused were armed with deadly weapons like sticks and
chain. Therefore, prosecution has proved offence punishable
under Section 147 of I.P.C. against all accused persons.
(31) Cri.Appeal No. 75/2000
Prosecution has also proved that in furtherance of common
object of that unlawful assembly, the accused persons caused
simple hurt to Devidas Kolekar (PW-9), Sanjay Kolekar (PW-6)
and Vasant Kolekar (PW-10) by deadly weapons. Therefore,
offence punishable under Section 324 read with Section 149 of
I.P.C. is also proved against all the accused persons. As unlawful
assembly of the accused persons armed with deadly weapons
used criminal force and caused hurt to the above witnesses in
furtherance of common object of their unlawful assembly,
offence punishable under Section 148 of I.P.C. is also proved
against all the accused persons. In other words, prosecution has
proved beyond reasonable doubt the offences punishable under
Sections 147, 148 and 324 read with Section 149 of I.P.C.
against all the accused persons.
39. Accordingly, after careful consideration of the
evidence placed on record, our conclusion is that the
prosecution has established guilt of the accused under Section
147, 148, 324 read with Section 149 and 304-II read with
Section 149 of I.P.C. The conviction imposed by the learned
(32) Cri.Appeal No. 75/2000
trial Court under Section 302 read with Section 149 of I.P.C. is
incorrect and deserves to be set aside by partly allowing this
appeal. However, accused Nos.1 to 6, 8 and 9 deserve to be
convicted for the offence punishable under Section 304-II read
with Section 149 of I.P.C. (Accused No.7 Venkat Nivrati Kolekar
died during pendency of appeal and his appeal is abated).
40. Regarding the quantum of sentence, after
considering young ages of accused Nos.1 to 6, 8 and 9 as well as
the circumstances of the case i.e. killing of one old man for no
reasonable cause, we hold that rigorous imprisonment for 5
years each and fine of Rs. 1000/- each for the offence
punishable under Section 304-II read with Section 149 of I.P.C.
is suffice to meet the ends of justice. It follows that this appeal
deserves to be partly allowed. Hence, the following order.
ORDER
1. Criminal Appeal No. 75/2000 is partly allowed.
2. The conviction of accused No.1 Subrao
Bhimrao Kolekar, accused No.2 Shrimant
Nivrati Kolekar, accused No.3 Baliram Goroba
Kolekar, accused No. 4 Prakash Dadarao
(33) Cri.Appeal No. 75/2000
Bandgar, accused No.5 Bibishan Dagadu
Kolekar, accused No. 6 Kalyanrao Bhimrao
Kolekar, accused No.8 Agatrao Nivrati Kolekar
and accused No.9 Vishnu Dhondiba Kanade
under Section 302 read with Section 149 of the
Indian Penal Code is set aside and it is
modified as under :-
"Accused Nos. 1 to 6, 8 and 9 are held guilty
for the offence punishable under Section 304-II
read with Section 149 of the Indian Penal Code
and they are sentenced to suffer rigorous
imprisonment for 5 years and to pay fine of Rs.
1,000/- (Rupees One Thousand) each, in
default, to suffer rigorous imprisonment for
one month".
3. The conviction of accused Nos.1 to 6, 8 and 9 under
Sections 147, 148 and 324 read with Section 149 of
the Indian Penal Code is confirmed.
4. Accused Nos.1 to 6, 8 and 9 shall surrender to their
bail bonds immediately before the trial Court to
undergo the sentence.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
***
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