The State Of Maharashtra vs Vithal Ramaji Kolhe & Anr
2017 Latest Caselaw 4318 Bom

                                       1             Appeal 363 of 2000

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 363 of 2000

     *       The State of Maharashtra.             ..    Appellant.

                      Versus

     1)      Vithal s/o Ramaji Kolhe
             Age 45 years,
             Occupation : Agriculture.

     2)      Vishwanath s/o Narsingrao Kamble,
             Age 40 years,
             Occupation : Agriculture,
             Both R/o village Jam (Bk),
             Taluka Mukhed, Dist. Nanded. .. Respondents.

                                 ----
     Shri. S.S. Salgare, Additional Public Prosecutor, for
     appellant.

     Shri. N.N. Shinde, Advocate, for respondent Nos.1 & 2.
                                ----

                               Coram:      T.V. NALAWADE &
                                           SUNIL K. KOTWAL, JJ.

                               Date:       11 July 2017.

     JUDGMENT:

1) The appeal is filed to challenge the judgment

and order of acquittal delivered by the learned Additional

Sessions Judge, Biloli, District Nanded in Sessions Case

No.16 of 1993. Both the sides are heard.

                                        2            Appeal 363 of 2000

     2)               The respondents are acquitted in the aforesaid

sessions case in which charge was framed against them

mainly for offence punishable under sections 302 and 109

of the Indian Penal Code. Murder of one Babu was

committed on 14-8-1984 at about 1.00 p.m. in village Jam

(Bk) near the shop of one Ganesh Pampatwar. There was

political rivalry between deceased Babu and the accused

persons. In one election to village panchayat which was

held 4 months prior to the date of the incident Babu and

his party members were declared elected and the group of

accused persons was defeated. There was long standing

rivalry between the two groups and due to the defeat,

accused persons had become angry with Babu. On the day

of the incident when Babu was proceeding towards

aforesaid shop, the accused followed him with weapons

like axes and firstly they pelted stones and then they used

the weapons like axes and murdered Babu near this shop.

Allegation against present respondents is that they were

instigating accused Nos.1 to 7 who are not involved in the

present proceeding, to finish Babu and they were the

leaders.

                                       3           Appeal 363 of 2000

     3)               Sessions case No.116/1984 was filed against

accused Nos.1 to 7 and investigating was started of that

case on the basis of report given by Ramkishan, brother of

Babu. Names of present respondent were not mentioned

in the F.I.R. Ramkishan tried to see that their names are

also included by taking some steps but he failed in those

steps. Ultimately he filed a private complaint against all

accused, 9 accused persons, by making allegations against

all of them. The Judicial Magistrate First Class made

inquiry under section 202 of the Criminal Procedure Code

and issued process against all the accused. Ultimately the

order of issue process which was made as against accused

Nos.1 to 7 was set aside as charge sheet was filed against

those accused as Sessions Case No.116/1984. In view of

these circumstances, the case was committed to Sessions

Court only as against present respondents who were not

in the previous sessions case.

4) During trial Ramkishan examined himself and

he examined two witnesses like Subhan (PW 4) and

Digambar (PW 5) as eye witnesses. Ramkisan was not

present on the spot when Babu was murdered and he had

4 Appeal 363 of 2000

made allegations against accused Nos.1 to 7 that after

finishing Babu near the shop, the accused Nos.1 to 7 had

come to his field and there he was assaulted immediately

after the incident of murder of Babu. He had not

mentioned in the F.I.R. the names of PW 4 and PW 5 as

witnesses to the incident of murder of Babu and in the

F.I.R. he had given names of other persons who had

supplied information to him. The eye witnesses who were

examined in previous sessions case which was tried

against accused Nos.1 to 7 are not examined in the

present case.

5) Admittedly statement of Subhan was not

recorded by police during investigation of the crime in

which charge sheet was filed. It is not disputed that PW 5

had not taken names of present respondents as accused in

his statement given before police during investigation of

the F.I.R. These circumstances are considered by the

sessions Court in the present matter.

6) The Sessions Court has considered the

discrepancies in the evidence given by the aforesaid two

5 Appeal 363 of 2000

eye witnesses. When one witness has deposed that both of

them were proceeding together when they reached near

the shop, the other witness has stated in the evidence that

he alone was proceeding and then he came across the

incident. It is not their version that present respondents

participated in the incident and that was also not the case

of Ramkisan at any time. They want to prove that

respondents were instigating other accused to finish

Babu. In the past, during trial of the previous cases

nobody had uttered a word to say that the respondent

were present on the spot.

7) During cross-examination, PW 4 and PW 5 have

admitted that at the instance of the persons from the

group of accused cases were filed against them and their

relations with the accused persons were not good. PW 4

and PW 5 are close relatives of each other. There is no

circumstantial check to the evidence given by PW 4 and

the Court found that there are material omissions in the

previous statement which was recorded by police of PW 5.

The conduct of the prosecution of not examining the other

eye witnesses who are believed in the past by the Court is

6 Appeal 363 of 2000

also considered by the Sessions Court. Thus the view

taken by the sessions Court that the PW 4 and 5 cannot be

believed is a possible view. Some accused are already

convicted and their conviction is confirmed for offence

under sections 302/149 of the Indian Penal Code. After

scrutiny of the evidence such decision has come out from

the High Court. In view of these circumstances, it can be

said that there is possibility of false implication of present

respondents in the case as they are from rival political

group. This possibility has also created doubt about the

entire case of the prosecution. The manner in which the

incident took place is totally changed in the present

matter by the witnesses and that circumstance is also

considered by the sessions Court. This Court holds that it

is not possible to interfere in the decision of acquittal

given by the Sessions Court in favour of the respondents.

In the result, the appeals stands dismissed.

            Sd/-                                  Sd/-
     (SUNIL K. KOTWAL, J.)                (T.V. NALAWADE, J.)


     rsl