Bombay High Court
Sanjay Subhash Kolekar And Ors vs State Of Maharashtra on 18 August, 2017
Bench: T.V. Nalawade
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.115 OF 2000
Bharat Baburao Kolekar
Age 51 years, Occupation Agri.,
R/o Kolekarwadi, Post Bukanwadi,
Taluka and District Osmanabad ... APPELLANTS
VERSUS
The State of Maharashtra,
through P.S.O., Bhoki,
Taluka and District Osmanabad ... RESPONDENTS
.....
Shri R.G. Hange, Advocate for appellant
Shri S.J. Salgare, A.P.P. for respondent/ State
.....
WITH
CRIMINAL APPEAL NO.109 OF 2000
1. Sanjay s/o Subhash Kolekar,
Age 22 years, Occ. Agriculture
2. Abhiman s/o Bhagwan Kolekar,
Age 40 years, Occu. Agriculture
3. Dattu s/o Subhash Kolekar,
Age 23 years, Occu. Agriculture
4. Subhash s/o Bhagwan Kolekar,
Age 54 years, Occu. Agriculture,
All R/o Kolekarwadi, Taluka and
District Osmanabad ... APPELLANTS
(Orig.Accused No.2 to 5)
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Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
2
VERSUS
The State of Maharashtra,
(Copy to be served on the
Public Prosecutor, High Court of
Judicature of Bombay, Bench at
Aurangabad) ... RESPONDENT
.....
Shri M.P. Tripathi, Advocate for appellants
Shri S.J. Salgare, A.P.P. for respondent/ State
.....
WITH
CRIMINAL APPEAL NO.110 OF 2000
1. Kalidas Babu Kolekar,
Age 47 years, Occ. Agriculture
2. Vasant s/o Babu Kolekar
Age 50 years, Occu. Agriculture
3. Devidas s/o Babu Kolekar,
Age 37 years, Occu. Agriculture
All R/o Kolekarwadi, Post :
Bhokanwadi, Taluka and
District Osmanabad ... APPELLANTS
(Orig.Accused No.1, 7 & 8)
VERSUS
The State of Maharashtra,
through P.S.O., Dhoki,
Tq. & Dist. Osmanabad
(Copy to be served on the
Public Prosecutor, High Court of
Judicature of Bombay, Bench at
Aurangabad) ... RESPONDENT
.....
Shri P.B. Gapat, Advocate for appellants
Shri S.J. Salgare, A.P.P. for respondent/ State
.....
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Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
3
CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 26th July, 2017
Date of pronouncing judgment : 18th August, 2017.
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. These appeals are filed by original accused No.1 to 8
against the judgment and order passed by 2nd Additional
Sessions Judge, Osmanabad, convicting all the accused for the
offences punishable under Sections 147, 148, 149, 324 read with
Section 149 of the Indian Penal Code. Prosecution case in brief is
that, accused persons are relatives of informant Shrimant
Nivrutti Kolekar and other witnesses. They all live at village
Kolekarwadi, Taluka Osmanabad. On account of agricultural
land, accused and informant are on inimical terms. On
5/7/1992, at about 8.30 p.m., the informant Shrimant Kolekar
(P.W.1) was taking his dinner at his residence. That time, all
accused persons came in front of his house while abusing.
Accused No.7 Vasant was holding axe and others were holding
sticks in their hands. Accused No.3 shouted from outside and
challenged the informant to come out of the house. When
informant Shrimant (P.W.1) went outside the house, all accused
started assaulting him by stick, axe as well as by stones.
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
Accused No.7 Vasant inflicted stone blow on the head of
informant. He also inflicted axe blow on the body of informant.
That time, Smt. Prayagbai w/o Bhimrao Kolekar (P.W.3) reached
on the spot and intervened. At that time, Prayagbai (P.W.3)
sustained injury on her hand due to the axe blow by accused
No.7 Vasant. Bali Goroba Kolekar, Subrao Kolekar, Nivrutti Daji
Kolekar (P.W.2), Venkat Nivrutti Kolekar rushed on the spot to
rescue the informant Shrimant. They were assaulted by accused
persons by sticks. Informant and other witnesses sustained
injuries. Therefore, informant went to Police Outpost, Ter at
about 10.00 p.m. and lodged report (Exh.56) against the accused
persons. Police referred injured persons to P.H.C., Ter. Dr. P.R.
Kulkarni (P.W.4) examined the injured and issued Medico Legal
Certificates (Exhibits 69 to 75). During the course of
investigation, P.S.I. Shri V.D. Kulkarni (P.W.5) prepared spot
panchanama (Exh.87), seized blood stained clothes of informant
Shrimant (P.W.1), Vishnu Khande (Exh.88 and 89) on 9/7/1992.
The investigating officer also seized sticks from accused
(Exh.91). After completion of the investigation, charge sheet
was filed in the Court of Chief Judicial Magistrate, Osmanabad.
As counter, Sessions Case No.94/1993 was pending before the
Sessions Judge, Osmanabad, this case was also committed to
Sessions Court, Osmanabad for its trial along with Sessions Case
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
No.94/1993.
2. Charge (Exh.24) was framed against accused No.1 to
8 for the offence punishable under Sections 147, 148, 323, 324
read with Section 149 of the IPC. Accused pleaded not guilty and
claimed trial.
3. Defence of the accused is that, on the date and time
of the incident, the informant party assaulted the accused
persons by sticks, cycle chain and hunter, resulting into death of
Baburao Bhagwan Kolekar. Even accused sustained injuries at
the time of assault by informant party. Defence of the accused
No.6 was of alibi.
4. After considering the evidence placed on record,
learned trial Court convicted the accused No.1 to 8 for the
offences punishable under Sections 147, 148, 324 read with
Section 149 of the IPC. Accused were sentenced to suffer
rigorous imprisonment for one year and to pay fine of Rs.1000/-
each for commission of the offence punishable under Section 148
of the Indian Penal Code. No separate punishment was imposed
under Section 147 of the Indian Penal Code. Accused were
sentenced to suffer rigorous imprisonment for two years each
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
and to pay fine of Rs.2000/- each for the offence punishable
under Sections 324 read with Section 149 of the IPC. Therefore,
these appeals arise.
5. Learned Advocate for the appellants assailed the
judgment and order of conviction on the ground of vague and
inconsistent statements of prosecution eye witnesses. His
contention is that, the defence has also proved F.I.R. of the cross
criminal case as well as injuries on the body of accused persons
through prosecution witnesses themselves. Even there is change
in the spot of incident and the medical evidence is in conflict with
oral testimony of prosecution witnesses.
6. Learned A.P.P. for the State supported the judgment
passed by trial Court on the ground that three eye witnesses
examined by the prosecution are consistent regarding occurrence
of the incident and their testimony is corroborated by medical
evidence as well as recovery of weapon of the offences from
accused.
7. In the case at hand, admittedly accused persons and
prosecution witnesses are on inimical terms for various reasons.
Even through cross-examination of prosecution witnesses,
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
specially investigating officer (P.W.5), the defence has brought
on record pendency of criminal case, in which one Baburao
Kolekar was killed from the side of party of the accused. In this
background, we have to scrutinize the evidence of prosecution
witnesses placed on record more cautiously.
8. Prosecution has examined Shrimant Kolekar, who is
the informant and the injured. Nivrutti Kolekar (P.W.2) is one of
the eye witness and Prayagbai (P.W.3) is the third eye witness
who claims that she intervened when accused persons were
assaulting the informant Shrimant (P.W.1). Dr. P.R. Kulkarni
(P.W.4) is the Medical Officer, P.H.C., Ter, who examined injured
prosecution witnesses as well as injured persons amongst the
accused persons. P.S.I. V.D. Kulkarni (P.W.5) is the
investigating officer.
9. At the outset, we must observe that the
circumstantial evidence placed on record in the form of seizure of
the sticks which were alleged to be used as weapon of the
offence at the time of occurrence (Exhs.90 and 91) is useless
piece of evidence for the simple reason that the seized sticks
were neither referred to Chemical Analyser to ascertain whether
any blood of the injured is detected on these sticks nor the signs
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
of struggle were found and noted in spot panchanama (Exh.87).
Even the stone which was used as weapon of the offence by one
of the accused to injured, the informant Shrimant (P.W.1) was
not found on the spot by the investigating officer. So also, the
sticks are not identified by any witness as weapon of the offence
used by any accused person.
10. Therefore, the prosecution case is totally based on
direct evidence of three eye witnesses and evidence of Dr.
Kulkarni (P.W.4). Shrimant Kolekar (P.W.1) deposed before the
Court that, on the date of incident, when he was taking meal at
about 7.30 p.m., that time all the accused came in front of his
house, abused him and uttered that father of this witness should
bring all his sons outside the house. From the testimony of
Shrimant (P.W.1), it emerges that, when he came outside, that
time accused No.7 Vasant inflicted stone blow on his head and
when he was trying to inflict axe blow on the body of this
witness, that time Prayagbai (P.W.3) reached on the spot and
tried to intervene. According to this witness, at the time of
attempt of Prayagbai (P.W.3) to rescue informant (P.W.1) from
the accused, she sustained injury on her hand due to axe in the
hand of accused Vasant. Thereafter, Bali, Subrao and Vishnu
came on the spot and Bali and Vishnu were assaulted by sticks
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
and Subrao was injured by chain blow. This witness has duly
proved the F.I.R. lodged to Police Station (Exh.56). Nivrutti
(P.W.2) and Prayagbai (P.W.3) tried to corroborate the version of
informant.
11. However, after careful examination of testimony of
Shrimant (P.W.1), it emerges that he has made absolutely vague
statement without naming specific accused persons who gathered
in front of the house of this witness. He has named only accused
No.7 Vasant. According to Shrimant (P.W.1), the accused No.7
(who was named by this witness as accused No.4), inflicted
single stone blow and thereafter the stone fell on the ground.
However, Medical Officer Dr. Kulkarni deposed that, when he
examined Shrimant Kolekar (P.W.1), that time two contused
lacerated wounds were found on different parts of head and one
contusion was found on his upper lip. Therefore, question arises
that when single stone blow was inflicted on the head of
Shrimant (P.W.1) how there could be two contused lacerated
wounds on different parts of his head. According to Dr. Kulkarni
(P.W.4), the injury found on the lip of Shrimant is possible due to
stone or stick. However, Shrimant (P.W.1) nowhere deposed
that he was assaulted by any other accused by stone or by stick
on his mouth. Thus, obviously, the testimony of Shrimant
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
(P.W.1) regarding actual assault by accused No.7 Vasant is in
conflict with medical evidence. So also, the so called stone
alleged to be used by accused No.7 for assault was never found
on the spot when police prepared spot panchanama. According
to Shrimant, initially accused no.7 inflicted stone blow and later
on Prayagbai (P.W.3) reached on the spot when accused No.7
Vasant was trying to inflict axe blow on the body of this witness.
In other words, according to Shrimant (P.W.1), Prayagbai
(P.W.3) was not present when accused No.7 Vasant inflicted
stone blow. However, Prayagbai (P.W.3) claims that, accused
No.7 Vasant inflicted stone blow in her presence and thereafter
when accused inflicted axe blow, that time she intervened and
sustained injury on her hand. Thus, version of Prayagbai (P.W.3)
is in conflict with testimony of Shrimant (P.W.1) as to when
Prayagbai (P.W.3) reached on the spot. Even Dr. Kulkarni
(P.W.4) has falsified the claim of Prayagbai (P.W.3) that she
sustained injury on her hand due to axe blow inflicted by accused
No.7 Vasant. From the testimony of Dr. Kale (P.W.4), it emerges
that, when he examined Prayagbai Kolekar (P.W.3), that time he
found contused lacerated wound on her forearm and this wound
is possible due to hard and blunt object. Thus, the testimony of
Prayagbai (P.W.3) is not acceptable that when she tried to
intervene, that time she sustained injury due to axe blow inflicted
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
by accused No.7 Vasant. She nowhere deposed that the butt
portion of the axe from accused No.7 touched her hand, due to
which such type of injury is possible.
12. Though Shrimant (P.W.1) claims that witnesses Bali
and Vishnu were assaulted by sticks and Subrao was assaulted
by chain, however, Shrimant (P.W.1) has conveniently
suppressed as to who inflicted stick blow on the body of Bali as
well as Vishnu and who inflicted chain blow on the body of
Subrao. This important injured eye witness are conveniently
suppressed by the prosecution for the best reasons known to it.
Another important aspect is that, Prayagbai (P.W.3) has not
whispered a single word against other 8 accused persons. Except
that they were present on the spot, she nowhere deposed that
other accused inflicted stick blow on the body of witness Bali,
Vishnu or Subrao. Prayagbai (P.W.3) nowhere deposed that, the
other accused were armed with sticks and chain. To our
surprise, even Shrimant (P.W.1) nowhere deposed that the
remaining 8 accused were armed with sticks and chain. Thus,
these both so called injured eye witnesses have contradicted
each other on every material particulars. On the background of
inimical terms between the parties and pendency of cross
criminal case, such conflicting version of the eye witnesses
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
cannot be relied upon to base the conviction.
13. Next eye witness examined by the prosecution is
Nivrutti Kolekar (P.W.2). This witness claims that, on the date
and time of incident, when he was present in his house, that time
all accused came in front of his house and abused him. At the
outset, we must make it clear that, this version of Nivrutti
(P.W.2) is in conflict with version of Shrimant (P.W.1), who also
claims that, at the time of incident, accused came in front of his
house. These both witnesses have not made it clear whether
they lived together in one and the same house or they lived in
separate houses. Therefore, this anomaly regarding the house
visited by accused remained unresolved.
14. No doubt, Nivrutti (P.W.2) has specified in his
deposition that Baburao Kolekar (deceased) inflicted stick blow
on the right hand of this witness. Accused No.7 Vasant inflicted
stone blow on the head of Shrimant. From his testimony, it
further emerges that, when Prayagbai intervened, that time
accused No.7 Vasant inflicted axe blow on her hand. Bali,
Subrao and Venkat also reached on the spot and Bali was
assaulted by accused No.8 Devidas by stick on his hand and
accused No.2 Sanjay inflicted blow on the waist of Venkat by
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
chain. It is to be noted that, Nivrutti nowhere deposed regarding
assault to Subrao Kolekar by any accused person. However, Dr.
Kulkarni (P.W.4) has proved two abrasions and one contusion on
the body of Subrao. Question arises when Subrao was not
assaulted by any accused, then how he sustained such injury at
the time of occurrence. Prosecution has not conveniently
examined Subrao Kolekar as witness for the reasons best known
to the prosecution. So also, Dr. Kulkarni (P.W.4) does not speak
regarding any injury on the body of Venkat Kolekar, who was
alleged to be assaulted by chain by accused No.2. Thus,
otherwise also testimony of Nivrutti (P.W.2) is not fully
corroborated by medical evidence.
15. So also, Nivrutti (P.W.2) is silent regarding role
played by accused No.1 Kalidas, accused No.3 Abhiman, accused
No.4 Dattu, accused No.5 Subhash and accused No.6 Bharat.
Another important aspect is that, when Nivrutti was subjected to
cross-examination, it emerges that, maximum part of his
statement before the Court regarding assault by accused to
informant and other witnesses is proved as material
improvement. Therefore, when evidence of Nivrutti (P.W.2) is
vague, as well as in conflict with medical evidence, and his own
statement before the police, on material particulars, the
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
testimony of such inimical witness cannot be relied upon without
any other corroboration.
16. Thus, as observed above, the direct evidence of three
eye witnesses is totally unreliable for the reasons stated above.
So also, the circumstantial evidence placed on record by the
prosecution is also useless piece of evidence and cannot be used
as corroboration to the testimony of eye witnesses.
17. In addition to this, from the cross-examination of Dr.
Kulkarni (P.W.4), it emerges that, on the date of incident, this
Medical Officer also examined accused No.5 Subhash. Accused
No.2 Sanjay, one Muktabai Kolekar and Baburao Kolekar as well
as accused No.1 Kalidas, accused No.7 Venkat, accused No.8
Devidas, and issued injury certificates (Exh.78 to 84). Medical
Officer Dr. Kulkarni (P.W.4) also opined that the injuries found on
the body of these accused persons are also possible by hard and
blunt object like stick. Through investigating officer (P.W.5)
defence has proved the copy of F.I.R. (Exh.94) and charge sheet
(Exh.104) and panchanamas (Exhs.95 to 103) of counter Session
Case No.94/1993. Investigating Officer has also admitted in
cross-examination that spot of this counter case is same.
However, prosecution has conveniently suppressed the reasons
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
for injuries found on the body of above referred accused persons
and the counter case. This indicates that, prosecution has
suppressed the genesis of the occurrence or some other material
part of the occurrence. This conduct on the part of prosecution
has also made the clouds of doubt more darker. In the
circumstances, benefit of doubt goes in favour of the accused
persons.
18. In the circumstances, there remains absolutely no
reliable evidence on record which is sufficient to establish the
guilt of the accused under Sections 147, 148, 324 read with
Section 149 of the Indian Penal Code. The conviction recorded
by learned trial Court is absolutely incorrect and deserves to be
set aside by allowing this Criminal Appeal. Hence we pass the
following order :
ORDER
(i) The Criminal Appeals No.115/2000, 109/2000 and
110/2000 are allowed.
(ii) Conviction of the accused No.1 to 8 for the offence
punishable under Sections 147, 148, 324 read with
Section 149 of the Indian Penal Code and the sentence
imposed against them by learned Additional Sessions
Criminal Appeal No.115/2000 with
Cri.Appeal No.109/2000 & 110/2000
Judge, Osmanabad in Sessions Case No.145/1993 is set
aside.
(iii) Accused No.1 to 8 are acquitted of the offence
punishable under Sections 147, 148, 324 read with
Section 149 of the Indian Penal Code.
(iv) Accused No.1 to 8 are set at liberty.
(v) Under Section 437-A of the Code of Criminal Procedure,
accused No.1 to 8 shall execute before the trial Court
bail bonds with sureties for the amount of Rs.5,000/-
(Rupees five thousand) each to appear before the
Supreme Court as and when notices are issued to them
in respect of any proceedings filed against this judgment
and the said bail bonds shall remain in force for a period
of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
