Bombay High Court
Anna S/O. Mhatardeo Kolte vs The State Of Maharashtra And ... on 21 August, 2017
Bench: S.S. Shinde
Cri.Appln.1979/2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1979 OF 2017
Anna s/o Mhatardeo Kolte,
Aged 55 years, Occu. Agri.,
R/o Mali Babalgaon,
Taluka Pathardi, District
Ahmednagar ..Applicant
Versus
1. The State of Maharashtra,
through Police Station Officer,
Police Station, Ambhora,
Taluka Ashti, District Beed
2. Babasaheb s/o Mahadeo Maske,
Age 48 years, Occu. Agri.,
R/o Sawargaon, Taluka Ashti,
District Beed
3. Balbhim s/o Mahadeo Maske,
Age 42 years, Occu. Agri.,
R/o as above
4. Ramesh s/o Mahadeo Maske,
Age 38 years, Occu. Agri.,
R/o as above
5. Daulat s/o Balbhim Maske,
Age 24 years, Occu. Agri.,
R/o as above
6. Bapu @ Sandip s/o Balbhim
Maske, Age 22 years,
Occu.Agri., R/o as above ..Respondents
Mr R.P. Phatke, Advocate for applicant
Mrs P.V. Diggikar, A.P.P. for respondent no.1
Mr Dhananjay Mane, Advocate h/f Mr P.S. Pawar, Advocate for
respondent no.2
Respondents No.3, 5 and 6 served
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Cri.Appln.1979/2017
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- WITH -
CRIMINAL APPLICATION NO.3304 OF 2017
The State of Maharashtra,
through Police Station Officer,
Police Station, Ambhora,
Taluka Ashti, District Beed ..Applicant
Versus
1. Babasaheb s/o Mahadeo Maske,
Age 46 years, Occu. Agri.,
R/o Sawargaon, Taluka Ashti,
District Beed
3. Balbhim s/o Mahadeo Maske,
Age 40 years, Occu. Agri.,
R/o as above
4. Ramesh s/o Mahadeo Maske,
Age 36 years, Occu. Agri.,
R/o as above
5. Daulat s/o Balbhim Maske,
Age 22 years, Occu. Agri.,
R/o as above
6. Bapu @ Sandip s/o Balbhim
Maske, Age 40 years,
Occu.Agri., R/o as above ..Respondents
Mrs P.V. Diggikar, A.P.P. for applicant
CORAM : S.S. SHINDE AND
R.M. DHAVALE, JJ.
DATE OF RESERVING
THE JUDGMENT : 7th August 2017
DATE OF PRONOUNCING
THE JUDGMENT :21st August 2017
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Cri.Appln.1979/2017
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JUDGMENT (Per A.M. Dhavale, J.)
1. These applications are filed under Section 378 (3) of Cr.P.C. for
grant of permission to prefer appeal against the order of acquittal of
respondents no.2 to 6. Criminal Application No.1979 of 2017 is filed
by the informant, who is brother-in-law of the deceased, while
Criminal Application No.3304 of 2007 is filed by the State. Both are
assailing the judgment of acquittal passed by learned Additional
Sessions Judge, Beed on 24th March 2017 in Sessions Case No.105 of
2015, whereby respondents no.2 to 6 were acquitted of the offences
punishable under Sections 302, 201 read 34 and 120-B of the Indian
Penal Code.
2. Heard learned Advocate Mr Phatke for the applicant, learned
A.P.P. Mrs Diggikar for the applicant/State and learned Advocate Mr
Mane for respondent no.2.
3. Respondents no.2 to 6 were prosecuted on the basis of crime
registered at C.R.No.12/2015 at Ambhora Police Station registered on
the basis of F.I.R. of the applicant from Criminal Application No.1979
of 2017.
4. Deceased Gorakh, aged about 32 years was resident of
Sawargaon, Taluka Ashti, District Beed. He was brother of wife of the
informant, Anna Kolte and cousin of PW-5 Rohidas and son of PW-6
Parubai. All the accused are residents of the same village Sawargaon
and are distant relatives of the deceased. Informant Anna was
residing at Maliba Bhadgaon, Taluka Pathardi, District Ahmednagar.
Cri.Appln.1979/2017
The accused were prosecuted on the basis of material of last seen
together and the two incidents dated 21.1.2015 and 22.1.2015 of
assault by the accused to the deceased and the alleged illicit relations
of the deceased with Vimal, second wife of accused No.2 Balbhim. All
the accused are inter se related. Accused No.1 - Babasaheb (A-1) and
accused No.3 -Ramesh (A-3) are brothers of Balbhim, while accused
Nos.4 and 5 are sons of Balbhim. As per F.I.R. dated 29.1.2015, PW-1
Anna Kolte was invited by deceased Gorakh for attending a 'Jatra' held
at Sawargaon on 20th and 21st January 2015. As per F.I.R. and
evidence of PW-1, on 21.1.2015, he along with deceased Gorakh had
gone to watch 'Tamasha' in the Jatra. At that time, at about 9.30 p.m.
all the accused came and sat behind him and deceased Gorakh and
Gorakh told Anna that he was apprehending danger to his life and
they should leave the place. Then accused No.1 (A-1) Babasaheb held
Gorakh by his collar, accosted him, what sort of relations he was
maintaining with Vimal, who was brother's wife of accused No.1 -
Babasaheb. Thereafter Babasaheb (A-1) gave a fist blow on his face
and accused No.2 Balbhim (A-2) gave a stick blow on his back, while
accused Nos.3 Ramesh and Daulat gave kick and fist blows. Accused
No.5 slapped PW-1 Anna. Then, some persons intervened and PW-1
Anna and the deceased Gorakh left the place. Gorakh told PW-1 Anna
to go to his house. PW-1 Anna went to the house of his maternal
uncle residing in the same village.
5. PW-2 Ashok and PW-3 Sominath gave statements and oral
evidence that on 22.1.2015 at about 4.30 to 5.00 a.m., when they
were proceeding to attend nature's call, they saw accused Nos.1 to 5
Cri.Appln.1979/2017
assaulting deceased Gorakh by sticks and dragging him by putting
rope around his neck. They were also abusing him and this incident
took place in front of hotel of accused No.2 - Balbhim. PW-2 Ashok
and PW-3 Sominath got frightened and did not intervene. Thereafter
deceased Gorakh went missing. On 23.1.2015, PW-5 Rohidas lodged
a missing report Exh.58 at Ambhora Police Station. Thereafter, there
was search of the deceased and on 28.1.2015, dead body of Gorakh
was found floating on water in the well of Hausrao in the same village.
Accordingly, Accidental Death report Exh.59 was lodged by PW-5
Rohidas on 28.1.2015. On the next day, PW-1 Anna lodged F.I.R.
6. The post mortem notes Exh.74 and evidence of PW- 9 Dr.Balaji
show that deceased Gorakh had single contusion of 6 cm x 4 cm on
high parietal area in the midline and there was internal fracture of
cervical vertebra C-4 and C-5 and haematoma in the scalp. These
injuries were the cause of death. The body was in decomposed state.
The Medical Officer did not lead any evidence about the date and time
of death.
7. The prosecution mainly relied on the evidence of PW-2 Ashok
and PW-3 Sominath who deposed that on 22.1.2015 at 4.00 to 5.00
a.m., they have seen the accused nos.1 to 5 assaulting deceased
Gorakh by sticks and dragging him by putting noose of the rope
around his neck.
8. The learned trial Judge has rightly taken into consideration the
subsequent conduct of PW-2 Ashok and PW-3 Sominath in not
disclosing these facts to the Police. There is evidence that they had
Cri.Appln.1979/2017
disclosed this fact to other witnesses i.e. PW-1 Anna, PW-5 Rohidas
and mother of the deceased immediately after the incident, but this
material fact does not find place in the missing report dated
23.1.2015 Exh.58 and Accidental Death case report dated 28.1.2015
Exh.59. This fact was intimated to the Police for the first time after six
days on 29.1.2015 in the F.I.R. During the intervening period PW-2
Ashok and PW-3 Sominath were searching deceased along with other
witnesses and if they would have narrated this incident, there could
have been F.I.R. against the accused persons much earlier. In the
present case, the F.I.R. is lodged after seven days. The learned trial
Judge rightly relied on State of Orissa Vs. Brahmananda Nanda
AIR 1976 SC 2488 in which silence of the material witnesses for a
day and half was held to be serious infirmity. In the present case, the
silence was for a period of six to seven days.
9. We also find that there are discrepancies and suspicious
circumstances in the evidence of PW-2 Ashok and PW-3 Sominath.
Both are chance witnesses. PW-2 Ashok stated that he was going to
answer the nature's call. His cross-examination in paragraph 10
shows that he had other spots nearer to his house for going to answer
the nature's call. PW-2 Ashok in cross-examination admitted that his
wife while filing nomination paper had shown that there was toilet in
her house but thereafter, he changed his version. According to him,
he saw the incident at 5.00 to 5.30 a.m. His evidence shows that
accused no.1 Babasaheb and accused no.2 Balbhim and accused no.3
Ramesh beating Gorakh with stick whereas other accused Daulat and
Bapu were dragging him by putting noose of rope around his neck.
Cri.Appln.1979/2017
PW-2 Ashok and PW-3 Sominath did not depose about presence of
each other on the spot.
10. PW-2 Ashok stated that after watching Tamasha for some time,
he went to sleep. According to him, the incident took place at 4.00 to
4.15 a.m. when he was proceeding to milking buffaloes. According to
him, accused no.1 Babasaheb, accused no.2 Balbhim and accused
no.3 Ramesh were beating Gorakh with sticks and stick blow of
Babasaheb landed on head of Gorakh whereas accused nos.4 Daulat
and accused no.5 Bapu were dragging Gorakh by a rope. The role
assigned to accused no.3 - Ramesh by PW-2 Ashok and PW-3
Sominath is different.
11. Pertinently, the post mortem report shows only one injury on
the skull of deceased Gorakh. Besides internal haematoma and
fracture of vertibras. There are no corresponding injuries to support
the evidence of assault by two three persons by sticks and there is no
ligature mark to support the allegation that some accused were
dragging deceased Gorakh by putting noose of rope around his neck.
When these contradictions are considered along with silence of PW-2
Ashok and PW-3 Sominath by not reporting the incident to Police for
six days, their evidence becomes highly suspicious.
12. As far as the first incident in Tamasha theatre is concerned,
there is evidence that there was police bandobast but there was no
intervention by the Police when deceased Gorakh was allegedly
assaulted. Besides, PW-1 Anna, PW-2 Ashok, PW-3 Somnath and PW-5
Rohidas had also attended Tamasha. PW-1 Anna stated about assault.
Cri.Appln.1979/2017
PW-2 Ashok did not state about any incident though he was present
there from 9.00 p.m. to 11.00 p.m. PW-3 - Sominath formally spoke
about quarrel without any reference to assault. PW-4 Raju also stated
about quarrel and beating by the accused to Gorakh by sticks. PW-5
Rohidas also stated about quarrel without any specific evidence
regarding assault. There was intervention by Mohan and Raju, but
Mohan is not examined while Raju has not deposed about assault. Not
reporting the incident to the Police present there is also suspicious.
13. The subsequent conduct of PW-1 Anna is again suspicious.
Though deceased Gorakh allegedly told him about danger to his life at
the hands of accused, PW-1 Anna did not accompany him to his
house. Instead he went to the house of his maternal uncle. Deceased
Gorakh was wife's brother of PW-1 Anna. It was expected that he
should have escorted him to his house.
14. The missing report dated 23.1.2015 lodged by PW-5 Rohidas
only disclosed about a quarrel (casual quarrel). P.W.5-Rohidas
reported that Gorakh was lying on the ground in drunken condition
but PW-5 Rohidas did not take him to his house. Chemical Analyst's
report shows that deceased Gorakh had consumed liquor. The report
of Accidental Death dated 28.1.2015 lodged by PW-5 Rohidas is again
silent about assault by the accused in the Tamasha theatre and
assault seen by PW-2 Ashok and PW-3 Sominath.
15. There is no definite material to show at what time Gorakh died.
The body was in the process of decomposition. Therefore, there is no
evidence to show that this evidence of last seen and assault was
Cri.Appln.1979/2017
within close proximity with the time of death.
16. Learned trial Judge held that the homicide was proved. The
evidence in this regard shows that shirt, pant and mobile of deceased
were found in the field. His chappal was found at a distance of 50 feet
and body of the deceased was found with only baniyan and
underwear. If somebody jumps into the well for committing suicide,
he will have contused injury like injury no.1 with fracture of vertebra.
We, therefore, find that possibility of suicide is not ruled out.
17. There is evidence about discovery of clothes of the accused but
Chemical Analyst's reports do not show any blood stains on the
clothes of the accused.
18. There is also discovery of rope but it was not proved to be
weapon of offence. There are no corresponding injuries and blood
stains.
19. The defence suggested various stands of enmity, political,
commercial, land dispute, personal and character. Admissions of the
witnesses disclose that the parties are of two rival groups and there
was contest of election by relatives of the accused and the witnesses
against each other. The evidence of PW-3 - Sominath and PW-4 Raju
show that one Mangal contested election from the panel of father-in-
law of PW-3 - Sominath against accused no.1 and there was a tie and
in lucky draw. Mangal was elected but in Court, accused No.1 -
Babasaheb was declared as elected. Wife of PW-4 Raju contested
election from the panel of Babasaheb Mahadeo Maske. It was against
Cri.Appln.1979/2017
the accused. There is admission by PW-2 Ashok that he was in
transport business and accused no.1-Babasaheb was also in transport
business. There were transactions with one Harba of both of them.
PW-3 Sominath admitted that one case under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act was filed against
him by one Hausrao Bajirao but denied that accused nos.1 and 2 were
witnesses in the same.
20. After considering all the facts together and on going through the
judgment of the trial Court, we find that the view taken by the learned
trial Judge is a reasonable and probable view. We do not find it
necessary to admit the appeals and re-appreciate the evidence.
Hence, we find that these are not fit cases for granting permission to
file appeal against acquittal under Section 378 (4) of the Cr.P.C.
21. Hence, both the applications Nos.1979 of 2017 and 3304 of
2017 seeking liberty to file appeals under Section 378 (4) of the
Cr.P.C. are rejected.
( A.M. DHAVALE, J.) ( S.S. SHINDE, J.)
vvr
