Bombay High Court
State Of Maharashtra vs Saudagar Yeshwant Gambhire And ... on 13 July, 2017
Bench: T.V. Nalawade
Cri.Appeal/276/1999
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.276 OF 1999
The State of Maharashtra
(Through : Police Station Officer Tuljapur,
Police Station District Osmanabad. ... APPELLANT
(Ori. Complainant)
Versus
1. Saudagar Yeshwant Gambhire, Age 20 years,
2. Bajrang Shrirang Sonwane, Age 42 years,
3. Mahadeo Changdeo Gambhire, Age 42 years,
4. Dhondiba Eknath Wagh, Age 43 years,
5. Arun Chandrakant Bhise, Age 38 years,
6. Rajendra Rupnath Gambhire, Age 26 years,
7. Mukesh Youraj Bhise, Age 23 years,
8. Shashikant Dhondiba Wagh, Age 21 years,
9. Santosh Bajrang Sonwane, Age 19 years,
10. Gunwant Manik Wagh, Age 25 years,
11. Nagnath Vishwanath Survase, Age 27 years,
12. Jaypal Limbaji Gambhire, Age 20 years,
13. Anil Jotiba Gambhire, Age 22 years,
14. Jitendra Mahadeo Gambhire, Age 21 years,
15. Ajit Ramchandra Gambhire, Age 19 years,
16. Nand Kumar Nivrati Gambhire, Age 19 years,
17. Rupnath Namdeo Gambhire, Age 50 years,
18. Nandkumar Mahadeo Gambhire, Age 19 years,
19. Balaji Namdeo Gambhire, Age 20 years,
20. Shivaji Ranaba Gambhire, Age 20 years,
21. Maharudra Rupnath Gambhire, Age 19 years,
::: Uploaded on - 24/07/2017 ::: Downloaded on - 28/08/2017 10:11:46 :::
Cri.Appeal/276/1999
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22. Vijay Youraj Bhise, Age 26 years,
23. Youraj Bhaurao Bhise, Age 48 years,
24. Vitthal Shripati Sonwane, Age 38 years,
25. Bhimrao Shrirang Sonwane, Age 35 years,
26. Shankar Manik Wagh, Age 33 years,
27. Mehaboob Ismail Shaikh, Age 48 years,
Accused Nos.1 to 26 are R/o Shiradhon,
Taluka Tuljapur.
Accused No.27 is S.T.Depot, Tuljapur... RESPONDENTS
(Ori. Accused)
...
Mr. R.V.Dasalkar, APP for State/Appellant
Mr. Suresh Kulkarni, Adv. for Respondent Nos.4, 12 to 14, 18 to 21
Mr. R.T.Nagargoje, Advocate for Respondent Nos.1, 2, 9, 10, 15, 24
and 26.
Mr. V.R.Dhorde, Advocate for Respondent Nos.5, 7, 11, 22, 23, 25
...
CORAM : T.V.NALAWADE AND
SUNIL K. KOTWAL, JJ.
DATED : 13th July, 2017
JUDGMENT : (Per Sunil K. Kotwal, J.) :-
1. Present appeal is directed by State of Maharashtra against
the judgment and order passed by the learned Additional Sessions
Judge, Osmanabad in Sessions Case No.125 of 1995, acquitting the
accused for an offences punishable under Sections 120-B, 147, 148,
307, 324, 326, 504 read with Sections 149 and 397 of the Indian Penal
Cri.Appeal/276/1999
Code, under Section 25 of Indian Arms Act as well as under Section
135 of the Bombay Police Act. Accused Nos.1 to 5, 7, 9, 13 and 15 to
27 were also acquitted of the offence punishable under Section 323 of
the Indian Penal Code. Only Accused Nos.6, 8, 14, 26 were convicted
for the offences punishable under Section 323 read with Section 34 of
the Indian Penal Code and they were sentenced to suffer Simple
Imprisonment, till rising of the Court and to pay a fine of Rs.1,000/-
(Rupees One Thousand Only). Though order of conviction is not
challenged by these accused, only acquittal of the above referred
accused is challenged by the State. Respondent Nos.1 to 27 are
original accused Nos.1 to 27 respectively. During pendency of this
appeal Respondent / accused No.2 died and therefore, proceeding
against him is abated.
2. Facts leading to institution of this Appeal are that,
Respondent Nos.1 to 27 were prosecuted for the offences punishable
under Sections 120-B, 147, 148, 307, 324, 326, 504 read with
Sections 149 and 397 of the Indian Penal Code and for the offence
punishable under Section 25 of Indian Arms Act as well as under
Section 135 of Bombay Police Act.
3. Appellant's case in brief is that, all accused and most of
Cri.Appeal/276/1999
the witnesses are residents of Shiradhon, Taluka Tuljapur. On
22.10.1993, at about 12.45 a.m. informant Shri Baban Rangnath
Sonwane boarded Mirzanpur to Tuljapur S.T. Bus along with
Subhash Vitthal Sonwane, Vishwanath Manik Sonwane, Sahebrao
Namdeo Wagh, Shankar Chandan Sonwane, Arun Chandan Sonwane,
Prabhakar Abarao Sonwane and Raosaheb Salunkhe. Out of these
accused Shankar Manik Wagh, Gunwant Manik Wagh, Shashikant
Dhondiba Wagh, Umakant Dhondiba Wagh, Rajendra Rupnath
Gambhire, Maharudra Rupnath Gambhire, Ajit Ramchandra
Gambhire, Nandkumar Nivrutti Sonwane, Jitendra Mahadeo
Gambhire, Nandkumar Mahadeo Gambhire, Saudagar Yashwant
Gambhire, Vijay Youraj Bhise, Santosh Bajrang Sonwane, Vitthal
Shripati Sonawane, Anil Jyotiba Gambhire, Bajrang Shrirang
Sonwane, Bhimrao Shrirang Sonwane, Dhondiba Eknath Wagh and
Mahadeo Changdeo Gambhire and other persons also boarded in the
bus from the Bus Stop Shiradhon. When that bus reached to the farm
of Shri Jagtap, Advocate, accused No.26 Shankar Manik Wagh and
other accused persons started abusing the informant Baban Sonwane
(P.W.3) and Shankar Sonwane. The bus was stopped by accused
Bhimrao Shankar Sonwane. That time, Shashikant Wagh (accused
No.8) assaulted Shankar Sonwane by sword stick. Accused Rajendra
Rupnath Gambhire assaulted Shankar Sonwane by sword and accused
Cri.Appeal/276/1999
Gunwant Wagh assaulted Shankar Sonwane by chain and sword stick
respectively. They pulled down Shankar Sonwane below the bus and
started beating him. Shankar Sonwane sustained injuries and
therefore, when Baban Sonwane (P.W.3), Arun Sonwane, Prabhakar
Sonwane and Raosaheb Salunkhe tried to rescue Shankar Sonwane, at
that time accused Maharudra Gambhire, Ajit Gambhire and
Nandkumar Sonwane assaulted Arun Sonwane by an axe and chain.
Prabhakar Sonwane was also assaulted by Vitthal Sonwane and Anil
Gambhire by weapons like sattur and knife respectively. Informant
Baban Sonwane was also assaulted by Nandkumar Gambhire and
Vijay Bhise by chain and knife respectively. Other accused persons
assaulted Shri Raosaheb Salunkhe. Even amount of Rs.2000/- was
lost by Baban Sonwane, during that assault. Thereafter, informant
Baban Sonwane (P.W.3) lodged F.I.R. Exh.84 in the Police Station
Tuljapur against the accused. In the result, Crime No.162 of 1993
came to be registered under Sections 307, 324, 323, 504, 147, 148,
149 of the Indian Penal Code and under Section 135 of Bombay
Police Act. During investigation the accused were arrested and
weapons of the assault as well as stolen articles were recovered at the
instance of statements of the accused persons. Panchanama of the bus
Exh.93 was prepared. Even spot panchnama was drawn at Exh.95.
After completion of investigation, charge sheet was filed in the Court
Cri.Appeal/276/1999
for the offence punishable under Section 307 of Indian Penal Code,
being exclusively triable by Court of Sessions. This case was
committed to the Court of Sessions, Osmanabad for trial.
4. The learned Additional Sessions Judge framed charge at
Exh.30 against the accused No.1 to 27 for the offences punishable
under Sections 120-B, 147, 148, 307, 324, 326, 504 read with 149 and
397 of the Indian Penal Code. Charge was also framed under Section
25 of the Indian Arms Act and under Section 135 of Bombay Police
Act. Accused pleaded not guilty and claimed to be tried. Defence of
the accused was of total denial.
5. Prosecution has examined in all 19 witnesses. After
considering the evidence placed on record by the prosecution, the
learned Trial Court was pleased to convict only accused Nos.6, 8, 14,
26 for the offences punishable under Section 323 read with Section 34
of the Indian Penal Code. All accused were acquitted of the offences
punishable under Sections 120-B, 147, 148, 307, 324, 326, 504 read
with 149 and 397 of the Indian Penal Code and offence punishable
under Section 25 of Indian Arms Act as well as under Section 135 of
Bombay Police Act. Accused Nos.1 to 5, 7, 9 to 13, 15 to 27 were
acquitted of the offences punishable under Section 323 of the Indian
Cri.Appeal/276/1999
Penal Code. Against the order of acquittal Appellant / State has
preferred this appeal.
6. Learned APP for the State submitted that all injured
prosecution witnesses have consistently deposed against the accused
Nos.1 to 27 regarding assault to them by dangerous weapons like
sword, sword stick and cycle chain. The oral testimony of these
witnesses is fully corroborated by medical evidence. According to the
learned APP, prosecution has established guilt of all the accused
persons beyond any reasonable doubt.
7. In reply, learned counsel for the Respondents supported
the judgment passed by the Trial Court on the ground that the
evidence of all prosecution witnesses is self contradictory as well as
totally in conflict with the medical evidence. According to defence
counsel, the learned Trial Court rightly awarded benefit of doubt in
favour of the accused persons.
8. During the course of arguments, one fact is made
absolutely clear that, the accused persons are on inimical terms with
the informant and other so called injured witnesses. However, that
cannot be a sole ground to disbelieve the evidence of prosecution
Cri.Appeal/276/1999
witnesses. The legal principle is that the enmity is double aged
weapon and it cuts off both the sides. Therefore, evidence of inimical
witnesses is to be scrutinized with extreme caution and care by the
Court of Law.
9. Out of these 19 prosecution witnesses Arun Sonwane
(P.W.2), Baban Sonwane (P.W.3), Shankar Sonwane (P.W.5)
Raosaheb Salunkhe (P.W.6) are the persons who stated that, they were
assaulted and injured by the accused persons. Dr. Sambhaji Avhad
(P.W.1) is a Medical Officer, who has proved the injury certificates of
Shankar Sonwane (Exh.77), Arun Sonwane (Exh.78), Prabhakar
Sonwane (Exh.79), Raosaheb Salunkhe (Exh.80), Baban Sonwane
(Exh.81). Though Medical Officer (P.W.1) opined that, the age of the
injuries sustained by these injured persons was within 24 hours, in his
substantive evidence he has no where deposed as to which time he
examined each of the accused persons. Therefore, in absence of age
proof of injuries, the medical evidence placed on record has become
useless piece of the evidence, to connect the injuries sustained by
prosecution witnesses, with the incident of assault.
10. On analyzing oral testimony of prosecution witnesses it
emerges that, though Arun Sonwane (P.W.2) deposed on oath that on
Cri.Appeal/276/1999
the date and time of the incident in the S.T. Bus initially accused No.8
Shashikant Wagh inflicted blow of Sattur on the head of Shankar
Sonwane. That time accused No.24 Vitthal stopped the S.T.Bus.
Thereafter, accused No.6, 8, 14 pulled Shankar Sonwane below the
bus. Accused Vijay Bhise inflicted chain blow on the body of Arun
Sonwane (P.W.2). Accused No.5, 11, 21 reached on the spot from
one field. At that time, Accused No.5 was armed with sword.
Accused No.6 took the sword from Accused no.5 and inflicted it's
blow on the leg of Shankar Sonwane. Accused No.8 inflicted Sattur
blow on the right hand of Shankar. Accused Nos.12 and 15 inflicted
chain blows on the body of Arun Sonwane (P.W.2). According to this
witness, Accused No.18 assaulted him by stick and Accused No.15
took away his gold chain, watch of Allwyn Company and Accused
No.14 snatched Rs.1900/- from this witness. However, when this
witness was subjected to cross-examination, it emerged that most of
the portions of his statement regarding assault by accused No.8 by
Sattur, assault by Accused Nos.6 and 14 as well as assault by Accused
No.12 by chain, are proved to be material omissions. Even the act of
Accused No.24 regarding stopping of the S.T. Bus and the version of
this witness regarding assault by Accused No.15 and 22 by chain is
also proved as material omission. Thus as the statement of this
witness before the Court is totally in conflict with the statement before
Cri.Appeal/276/1999
the police, on every material particulars, the testimony of Arun
Sonwane (P.W.2) cannot be relied upon to base conviction of the
accused.
11. Baban Sonwane (P.W.3) is the person who lodged F.I.R.
(Exh.84) to Police Station Tuljapur. This witness has brought on
record altogether a different story by deposing that, accused No.24
inflicted Sattur blow on the head of Prabhakar and Accused No.26
pulled down Shankar Sonwane from the S.T. Bus. According to this
witness, Accused No.6 Rajendra inflicted sword blow on the leg of
Shankar, as well as Shankar was assaulted by Accused No.8 by knife
and by Accused No.14 by chain. According to this witness, Accused
No.24 also assaulted Shankar by Sattur. However, from the cross-
examination of this witness, it emerges that the major portion of his
statement before the Court is proved as material omission. So also the
oral testimony of this witness is in conflict with medical evidence as
injuries sustained by Shankar, as proved by Dr. Avhad (P.W.1) are in
conflict with the ocular evidence of this witness. The total nine
injuries on the body of the Shankar Sonwane are Contused Lacerated
Wound, which are not possible by sharp cutting weapon like sword,
Sattur or sword stick. Therefore, otherwise also, evidence of Baban
Sonwane (P.W.3) is of no help to the prosecution to convict the
Cri.Appeal/276/1999
accused.
12. Sadashiv Shinde (P.W.4) was the Bus Conductor of the
S.T. Bus related to the above incident. However, this witness, no
where deposed a single word against the accused persons. Therefore,
the testimony of this witness is of no help to the prosecution.
13. The star witness Shankar Sonwane (P.W.5) has brought
on record a somewhat different story, which is in conflict with
evidence of P.W.2 and P.W.3. According to Shankar Sonwane, when
the S.T. Bus came near farm of Advocate Jagtap, Accused No.6
suddenly started quarreling with this witness and Accused Nos.8, 10,
14 and 26 assaulted this witness by chain and other weapons. His
statement is vague, as to which other weapons were used by these
accused persons at the time of assault inside the bus. According to
Shankar, when he was pulled down the bus by Accused No.3, 4, 6, 8,
14 and 26 at that time Accused No.5, 11, 17 and 20 came from the
sunflower field. Accused No.6 inflicted sword blow on the right leg
and two sword blows on the left leg of this witness. According to
Shankar, Accused No.8 inflicted sword stick blow on his right hand
near wrist and Accused No.10 inflicted sword stick blow on his right
leg. According to this witness, Accused No.8 also inflicted sword
Cri.Appeal/276/1999
stick blow on his left leg. However, as observed above, no injury was
found on the body of this witness, which was caused by sharp cutting
weapon like sword or sword stick. According to Shankar Sonwane,
Accused No.26 took away cash of Rs.2,000/- from his pocket.
However, informant (P.W.3) has no where mentioned this occurrence
in the F.I.R. (Exh.84). Shankar Sonwane (P.W.5) has also improved
his version by deposing that, Accused No.6, Rajendra snatched his
golden heart shaped pendent as well as wrist watch of Allwyn
Company. According to this witness, Accused Nos. 14 and 10 took his
two gold rings. However, such important facts are not mentioned in
F.I.R. (Exh.84). Even other prosecution witnesses have not supported
this contention. On the other hand, from the cross-examination of
Shankar Sonwane it emerges that, he is habitual offender and
externment proceeding was pending against him. The testimony of
Shankar Sonwane (P.W.5) cannot be relied upon as it is self
contradictory as well as in conflict with Medical Officer and
testimony of other eye witnesses.
14. Raosaheb (P.W.6) though posed himself as one of the eye
witness, from his evidence on record, it emerges that he did not get
down from the bus during entire occurrence. This witness has also
deposed regarding assault on Shankar Sonwane by accused persons by
Cri.Appeal/276/1999
sword, chain and assault to this witness by Accused No.22 by chain
and by Accused No.14 by knife. The Medical Certificate of this
witness (Exh.80) shows only contusion and abrasion on the body of
this person. No chain injuries were found on the neck of this witness.
Contusion and abrasion cannot be caused due to assault by knife as
deposed by this witness. The testimony of this witness is in conflict
with his statement before the police and proved as material omission.
Thus, otherwise also evidence of this witness, being in conflict with
medical evidence and testimony of other witnesses, cannot be relied
upon.
15. Thus, as observed above all the eye witnesses including
the injured witnesses examined by prosecution are not reliable
because their oral version is in conflict with medical evidence as well
as all the witnesses are contradicting each others on material
particulars. Even evidence of Archana Sonwane (P.W.5) is of no help
to the prosecution for the reason that, her testimony is totally in
conflict with above discussed oral version of prosecution witnesses.
This witness, no where deposed about the assault on other persons by
accused except her brother Baban Sonwane. On the other hand, in her
examination-in-chief, Archana (P.W.5) has shown her ignorance
regarding the injuries to Arun Sonwane, Shankar Sonwane and
Cri.Appeal/276/1999
Prabhakar Sonwane, who were traveling by the same bus. The
statement of this witness that, her brother Baban was assaulted by
Accused No.7 Mukesh Bhise is proved as an omission. Thus,
evidence of this witness being totally unreliable is of no help to the
prosecution. In the circumstances, the direct evidence placed on
record by prosecution of all inimical witnesses cannot be relied upon
to base the conviction of the accused.
16. Circumstantial evidence is placed on record in the form of
recovery of incriminating articles as well as blood stained clothes of
the accused persons. However, the seizure panchnamas show that,
the seized clothes were not wrapped in paper or envelops at the time
of sealing. Even the seized weapons were not sealed by wrapping any
protecting cover, so as to rule out the possibility of tampering of
muddemal by sprinkling blood on the seized weapons and clothes.
Therefore, the circumstantial evidence in the form of recovery of
blood stained weapons and clothes from the possession of the accused
is also useless piece of the evidence.
17. As per the prosecution case, wrist watch of Allwyn Co.
and gold pendent were snatched by accused persons from Shankar
Sonwane and these articles were seized as per disclosure statement of
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accused Rajendra Gambhire and Anil Gambhire. However, from the
testimony of panch witness Dilip Ghuge (P.W.10) it emerges that, he
has no where deposed as to at which place the Accused Anil had
hidden the knife and at which place Accused Rajendra had hidden the
wrist watch and ornaments. Vague statement of panch witness that
the accused took out incriminating articles from their respective
houses is not sufficient to establish the discovery of fact as
contemplated under Section 27 of the Evidence Act. Otherwise also
these seized articles had no identification marks. In absence of
identification marks the exact identity of these articles cannot be
established, when such articles are easily available in the market. For
the same reason, the recovery of cycle chain from the house of
Accused Jaipal is not reliable.
18. Panch witness Shatrughna (P.W.11) tried to prove
recovery of wrist watch from Accused Mukesh and recovery of sword
stick from accused Shashikant. However, from the examination-in-
chief of Shatrughna it emerges that, both accused have no where
deposed as to exactly at which place the wrist watch and sword stick
were hidden. Rest of the statement of this witness that accused took
him to his house and produced wrist watch and sword stick is not
sufficient to establish recovery of these incriminating articles under
Cri.Appeal/276/1999
Section 27 of Evidence Act, when these articles are also easily
available in the market and cannot be identified on the basis of any
specific identification mark.
19. Other panch Vilas (P.W.8) and Gautam (P.W.9), Shahaji
(P.W.13) and Pawan Ingle (P.W.14), Bapu Wagh (P.W.17) turned
hostile. So also testimony of panch Kashinath Rathod (P.W.18)
regarding recovery of knife from Accused No.14 Jitendra, chain from
Accused No.15 Ajit and knife from Accused No.18 Nandkumar is
useless for the reason of vague version of this panch witness regarding
recovery. Even the statement of API, Suryakant Shelke (P.W.19)
regarding recovery of incriminating articles from the accused as per
their disclosure statements is absolutely vague. This important
witness has no where deposed as to what exactly the statement was
given by each of the accused. He cannot even tell the exact time of
preparation of each panchanama. Thus, the evidence placed on record
in the form of recovery of article from the accused is not helpful to the
prosecution to establish a link between the accused and assault on the
complainant and injured persons.
20. After careful examination of above discussed lengthy
evidence placed on record by the prosecution, we are fully satisfied
Cri.Appeal/276/1999
that the prosecution has miserably failed to prove that, on the date and
time of the incident accused persons were members of unlawful
assembly and in furtherance of the common object of that assembly
they committed attempt of murder or they caused any type of hurt to
any prosecution witnesses by deadly weapons. Therefore, no offence
is established against any accused and they were rightly acquitted by
the learned Trial Court. It follows that, this appeal being devoid of
merits, deserves to be dismissed.
21. In the result, the appeal is dismissed.
(SUNIL K. KOTWAL, J.) (T.V.NALAWADE, J.)
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