Bombay High Court
The State Of Maharashtra vs Bhimrao Daulatrao Kadam & Ors on 12 June, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.391 OF 1999
The State of Maharashtra,
Through Police Inspector,
Police Station, Naldurg,
Tq-Naldurg, Dist-Osmanabad.
...APPELLANT
VERSUS
1) Bhimrao Daulatrao Kadam,
Age-59 years,
(Appeal against Respondent No.1 abated)
2) Vinayak Daulatrao Kadam,
Age-42 years,
(Appeal against Respondent No.2 abated)
3) Haridas Daulatrao Kadam,
Age-40 years,
4) Shankar Bhimrao Kadam,
Age-27 years,
(Appeal against Respondent No.4 abated)
5) Shridhar Bhimrao Kadam,
Age-24 years,
(Appeal against Respondent No.5 abated)
All R/o- Jalkot, Tq-Tuljapur,
Dist-Osmanabad.
...RESPONDENTS
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...
Mr.S.J. Salgare, A.P.P. for Appellant-State.
Mr. N.G. Kale Advocate for Respondent
No.3 (Absent)
Appeal against Respondent Nos.1, 2, 4 and 5
abated as they are no more.
...
WITH
CRIMINAL APPEAL NO.392 OF 1999
The State of Maharashtra,
Through Police Inspector,
Police Station, Naldurg,
Tq-Naldurg, Dist-Osmanabad.
...APPELLANT
VERSUS
1) Bhimrao Daulatrao Kadam,
Age-59 years,
(Appeal against Respondent No.1 abated)
2) Vinayak Daulatrao Kadam,
Age-42 years,
(Appeal against Respondent No.2 abated)
3) Haridas Daulatrao Kadam,
Age-40 years,
4) Shankar Bhimrao Kadam,
Age-27 years,
(Appeal against Respondent No.4 abated)
5) Shridhar Bhimrao Kadam,
Age-24 years,
(Appeal against Respondent No.5 abated)
All R/o- Jalkot, Tq-Tuljapur,
Dist-Osmanabad.
...RESPONDENTS
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3
...
Mr.S.J. Salgare, A.P.P. for Appellant-State.
Mr.Satej S. Jadhav Advocate for Respondent No.3.
Appeal against Respondent Nos.1, 2, 4 and 5
abated as they are no more.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE : 12TH JUNE, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. As both these Criminal Appeals are
arising out of one and the same Judgment and order
passed by the trial Court, both the Appeals are
being decided by this common Judgment.
2. Criminal Appeal No.391 of 1999 is
directed against the Judgment and order dated 18th
September, 1999, passed by the Additional Sessions
Judge, Osmanabad in Sessions Case No.149 of 1994
thereby acquitting all the accused persons from
the offence punishable under Section 307 of the
Indian Penal Code (for short "I.P. Code"). The
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trial Court convicted all the accused persons for
the offence punishable under Sections 147, 148,
324 read with 149 of the I.P. Code. For the
offence under Section 147 of the I.P. Code, each
of the accused is sentenced to fine of Rs.500/-
and in default to suffer simple imprisonment for
three months. For the offence under Section 148 of
the I.P. Code, each of the accused is sentenced to
fine of Rs.750/- and in default to suffer simple
imprisonment for six months. For the offence under
Section 324 read with 149 of the I.P. Code, each
of the accused is sentenced to fine of Rs.2000/-
and in default to suffer simple imprisonment for
nine months. Criminal Appeal No.392 of 1999 is
filed by the State for enhancement of sentence.
3. The prosecution case, in brief, is as
under:-
A) The complainant Pundlik Patil was the
owner of Gut No.729 of village Jalkot, Tq-
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Tuljapur. Gut No.719 belonging to the accused is
adjacent to the land of the complainant. There was
dispute between the parties in respect of the
common Bundh as well as cart-track on it. They
have filed reciprocal suits for injunction and
obtained order of temporary injunction against
each other. A criminal litigation was also filed
by them in connection with the dispute of common
Bundh and cart-track.
B) On 9th July, 1992 at about 10.30 a.m. the
complainant deceased Pundlik was present in his
land. The accused persons entered in his land
armed with sticks, axe and spade. They threatened
the complainant and assaulted him. Accused No.1 -
Bhimrao assaulted by means of spade, accused No.5
- Shridhar assaulted by meas of sticks, accused
No.3 Haridas and accused No.2 - Vinayak assaulted
by means of sticks. The complainant sustained
injuries to his head, hands and legs. The
adjoining cultivators - Shivaji Birajdar, Dattu
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Kadam and Arun Kadam came there and they rescued
the complainant. Accused No.5 - Shridhar threw
chilly powder in the eyes of the complainant and
then all the accused persons ran away. The
complainant's son Ashok learnt about the assault,
so he came to the spot. The complainant also
narrated the incident to his son Ashok. Ashok took
the complainant to civil hospital, Solapur and he
was treated there.
C) The statement of the complainant was
recorded by A.P.I. Tilekar (Exhibit-90) and Crime
No.83 of 1992 under Sections 143, 147, 148, 149,
506, 324, 325 of the I.P. Code was registered and
investigation was handed over to P.S.I. Jadhav.
P.S.I. Jadhav went on the spot and he prepared
panchnama Exhibit-59 on 9th July, 1992. He seized
the blood-stained clothes of the deceased on 10th
July, 1992 (Exhibit-24). He recorded statements of
witnesses from time to time. He arrested the
accused persons on 16th July, 1992 and obtained
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their police custody remand on 17th July, 1992. On
21st July, 1992 accused No.2 - Vinayak discovered
blood-stained axe, as well as stick from his
cattle-shed and P.S.I. Jadhav seized those
articles under discovery panchnamas (Exhibit-55
and Exhibit-56). P.S.I. Jadhav seized the clothes
of the accused on 21st July, 1992. He got prepared
the map of the scene of the offence through
revenue circle inspector (Exhibit-71). He
collected injury certificate of the complainant
(Exhibit-34). Thereafter complainant expired on
25th October, 1992 and so his dead body was sent
for nursing and Crime No.82 of 1992 was registered
in Naldurg Police Station. The said crime was
investigated and R.C.C. No.147 of 1993 was filed
in the Court of the Judicial Magistrate, First
Class, Tuljapur on 18th August, 1993 for the
offence under Sections 324, 325, 34 of the I.P.
Code. Thereafter as both the said crimes were
arisen out of one and the same incident, the
counter case was also committed to the Court of
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Sessions, Osmanabad and it was numbered as
Sessions Case No.206 of 1996.
4. A charge was framed by the Additional
Sessions Judge, Osmanabad against all the accused
persons for the offence punishable under Sections
147, 148, 307 read with Section 149 of the I.P.
Code. The accused pleaded not guilty and claimed
to be tried.
5. After recording the evidence and
conducting full fledged trial, the trial Court
convicted all the accused persons for the offence
punishable under Sections 147, 148, 324 read with
149 of the I.P. Code and sentenced them to pay
fine, as stated above in Para-2 of the Judgment.
6. Learned A.P.P. appearing for the State,
submitted that though all the accused were held
guilty by the trial Court for the offence
punishable under Sections 147, 148, 324 read with
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149 of the I.P. Code, instead of imposing major
punishment of imprisonment, the trial Court has
sentenced them to pay fine only. The Learned
A.P.P. appearing for the State invites our
attention to the evidence of PW-1 Maruti Manik
Kadam and PW-4 Shivaji Sadashiv Birajdar and
submits that both these witnesses were present on
the spot when the incident took place and further
submits if the evidence of both the eye witnesses
is considered, they clearly stated that all the
accused, armed with the weapons such as stick,
spade and axe, beat Pundlik with intention to
commit his murder. He further submitted that the
trial Court has not properly considered the
evidence of these eye witnesses and acquitted the
accused persons from the offence punishable under
Section 307 of the I.P. Code. It is submitted that
evidence of PW-2 Sharadkumar Patil, Medical
Officer clearly shows that there were multiple
injuries on the person of Pundlik Patil.
Therefore, he submits that the accused be held
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guilty for the offence punishable under Section
307 of the I.P. Code. He therefore, submits that
both the Appeals may be allowed.
7. The learned counsel appearing for
Respondent No.3 in Criminal Appeal No.392 of 1999
submitted that the findings recorded by the trial
Court are in consonance with the evidence brought
on record by the prosecution. He further submitted
that the trial Court, after considering the entire
evidence on record, age of the accused persons and
considering the fact that there was no criminal
background of the accused, sentenced each of the
accused to pay fine. He, therefore submits that
both the Appeals may be rejected.
8. Before considering the oral evidence on
record, it has to be noted that, accused No.1 -
Bhimrao Daulatrao Kadam, accused No.2 - Vinayak
Daulatrao Kadam, accused No.4 - Shankar Bhimrao
Kadam and accused No.5 - Shridhar Bhimrao Kadam,
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died during the pendency of these Appeals, and
thus we have to consider both these Appeals in
respect of accused No.3 - Haridas Daulatrao Kadam
only.
9. Prosecution examined PW-2 Sharadkumar
Masudhan Patil, Medical Officer, Civil Hospital,
Solapur. He deposed that he examined Pundlik Patil
on 9th July, 1992. He further deposed that on
examination, he noticed following injuries on the
person of Pundlik:-
i) Cross-type of CLW 4 cm. X 1/2 cm. X 3 cm.
X 1/2 cm. muscle deep left partial to vertex
region.
ii) Contusion, diffuse up to middle 3 up-to
middle 3, right knee joint,
iii) Contusion M/3 TIF diffuse, left knee
joint
iv) Contusion right wrist diffuse, right
wrist,
v) Contusion diffuse CLW 2 cm. X 1 cm.
muscle deep, left maxilla to left ear front.
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10. Prosecution also examined PW-3 Dr.
Jarasandh Baburao Wadane, Medical Officer of
P.H.C. Naldurg. He deposed that on 25th October,
1992 he carried out postmortem on the dead body of
Pundlik Patil. He deposed that on external
examination, he noticed following injuries:-
i) Scar of old injury over forehead,
ii) Scar of old injury over right eye brow,
iii) Scar of old injury on lower part of
right forearm, 5 c.m. above wrist joint,
iv) Scar of old injury interior and middle
part of forearm,
v) Old fracture of right tibia, Ellizerove
instrument (rod),
vi) Old fracture of lower and of right
ulna.
11. To prove its case, the prosecution has
examined PW-1 Maruti Manik Kadam. He deposed that
incident took place six years back. About the
incident, he deposed that on the day of incident
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he was working as labourer with Pundlik Patil and
he himself and Ratan Chavan were digging near
boundary bundh of land of Pundlik Patil. He
deposed that at about 9.30 to 10.00 Bhimrao Kadam,
Haridas Daulatrao Kadam, Vinayak Daulatrao Kadam,
Shridhar Kadam and Shankar Kadam came from their
cattle-shed while hurling abuses. They were armed
with stick, spade and axe. All the accused started
beating Pundlik Patil. Accused Bhimrao Patil gave
blow of spade on the head of Pundlik Patil,
accused Shridhar gave blow of axe near the ear of
Pundlik Patil, accused Haridas, Vinayak and
Shankar gave blows of sticks and yoke pin on the
hand, back and legs of Pundlik Patil.
. During the course of cross-examination,
PW-1 Maruti deposed that at the time of recording
of his statement, he stated before police that he
was constructing water channel near the bundh. He
stated that he cannot assign any reason as to why
said fact is not mentioned in his statement.
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12. PW-4 Shivaji Sadashiv Birajdar deposed
that he knew all the accused. The incident took
place before six years. On the day of incident at
about 10 to 10.30 a.m. he had been to his field
and he was working in his field. He further stated
that he heard cry of Pundlik Patil as "Melo re
Melo" and he rushed towards the spot of incident.
He stated that when he was at 50 ft. distance from
the spot, he saw accused Bhimrao Kadam giving blow
of spade on the head of Pundlik Patil, accused
Shridhar gave a blow of an axe on the left ear of
the Police Patil. He stated that Haridas Kadam,
Vinayak Kadam and Shankar Kadam were giving blows
of sticks on the person of Pundlik Patil on his
legs, hands and on the back. When Pundlik Patil
fell down, Shridhar Kadam threw chilly powder in
the eyes of Pundlik Patil and then accused ran
away from the spot.
. During the course of cross-examination,
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PW-4 Shivaji admitted that Pundlik was his
relative. He admitted that there was dispute
between Pundlik Kadam and Bhim Kadam on the ground
of boundary bundh. He stated that assailants did
not use iron bar. He stated that in his statement
before police he has not stated that iron bar was
used for assaulting Pundlik Patil. He stated that
he cannot assign any reason as to why it is
mentioned in his statement before police that
besides stick, axe and spade, iron bar was also
used for assaulting Pundlik Patil. He further
stated that he does not know whether the incident
of quarrel took place on the ground of boundary
bundh. He can not remember, whether he had stated
before police that incident of quarrel took place
on the ground of boundary bundh. He stated that
contents in the statement before police that the
incident of quarrel took place on the ground of
boundary bundh situated between the land of
Pundlik Patil and Bhim Kadam are not correct. He
admitted that he has stated before police that
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Pundlik Patil told Ashok Patil that the accused
assaulted him with spade, axe and sticks. He
cannot assign any reason as to why above said fact
is not mentioned in his statement before police.
He deposed that he stated before police that
accused took away with them an axe. He cannot
assign any reason why the same is not mentioned in
his statement before police.
13. Prosecution examined PW-10 Ashok
Pundlikrao Patil. He deposed that deceased
Pundlikrao Kadam (Patil) was his father. He
deposed that Maruti Kadam, who was serving as
labourer with him, told PW-10 Ashok that Bhimrao,
Shridhar, Shankar, Haridas and Vinayak beat his
father. He immediately went towards the land. When
he went to the land, he saw his father lying on
the earth. His father had sustained bleeding
injury. After inquiry, his father told him that on
the ground of common bundh accused persons
assaulted him.
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. During the course of cross-examination,
PW-10 Ashok admitted that since last fifteen years
dispute was going on between them and accused on
the ground of common boundary bundh. He stated
that Pandurang Bhimrao Kadam has filed Regular
Civil Suit No.122 of 1992 against him and his
father for injunction to restrain them from
causing obstruction to him in using common bundh
as foot way. He stated that he had filed complaint
against Bhimrao on the ground of boundary bundh to
the police station. He admitted that 10 to 15 days
prior to the date of incident, PSI Naldurg police
station had come to their boundary bundh and he
gave warning to both the parties not to cause
damage to the boundary till the decision of the
Civil Court.
14. The evidence on record shows that civil
dispute was going on since long between Pundlik
and accused on the ground of boundary bundh, and
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both the groups had filed cases against each other
and obtained order of temporary injunction. The
trial Court has observed that the accused sought
to produce the injury certificates of their
medical examination, which shows that injuries
were also caused to accused No.2 Vinayak, accused
No.4 Shankar and accused No.5 Shridhar, and the
nature of the injuries was contused lacerated
wounds and contusions, which were the simple
injuries. The trial Court has further observed
that all the said injuries must have been
sustained by the accused persons during the course
of the common incident which took place on the
same day and at the same time. Thus it is clear
that the incident took place due to the dispute
between the parties on the ground of common bundh
and the accused had no intention to commit murder
of Pundlik. Further it has come on record in the
cross-examination of PW-10 Ashok Patil that
complainant Pundlik was taking treatment in the
hospital for about 2 and 1/2 months after the
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incident and when he was discharged from the
hospital, the doctor advised him to visit the
hospital once in a week for medical check up. It
has come on record that incident took place on 9th
July, 1992 and Pundlik died on 25th October,
1992, i.e. three months after the incident. PW-2
Dr. Sharadkumar Patil admitted in the cross-
examination that injury Nos.2, 3 and 4 are not on
vital part of body. PW-2 though stated that injury
Nos.1 and 5 were on vital part of the body,
however he further admitted that those injuries
were simple in nature. Thus the trial Court has
rightly concluded that, taking into consideration
the admission of Dr. Patil it cannot be said that
the assailants (accused) by causing injury Nos.1
to 5 to the complainant had intention to commit
his murder. Therefore, the trial Court has rightly
acquitted all the accused from the offence
punishable under Section 307 of the I.P. Code. It
is also relevant to mention that, even accused
also suffered injuries. However, the prosecution
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witnesses have not stated about said injuries.
Therefore, reasonable inference can be drawn that
prosecution tried to suppress the genesis of the
incident.
15. The trial Court after considering entire
evidence on record, convicted the accused persons
for the offence punishable under Sections 147, 148
and 324 read with 149 of the I.P. Code and
sentenced them to pay fine. The trial Court has
considered the prayer made on behalf of the
accused that a fine sentence may be awarded
against them instead of sentencing them to suffer
imprisonment. The trial Court has considered the
age of the accused persons and also observed that
there was no criminal background of the accused in
the form of proved conviction and sentenced them
to pay fine. We are therefore convinced that, the
findings recorded by the trial Court are in
consonance with the evidence brought on record by
the prosecution and the sentence of fine imposed
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by the trial Court also appears to be proper.
There is no perversity as such. The view taken by
the trial Court is plausible.
16. The Supreme Court in the case of
Muralidhar alias Gidda and another Vs. State of
Karnataka1 in para 12 held thus:-
12. The approach of the appellate Court
in the appeal against acquittal has been
dealt with by this Court in Tulsiram Kanu
Vs.State, AIR 1954 SC 1, Madan Mohan Singh
Vs. State of U.P., AIR 1954 SC 637, Atley
Vs. State of U.P., AIR 1955 SC 807, Aher
Raja Khima Vs. State of Saurashtra, AIR
1956 SC 217, Balbir Singh Vs. State of
Punjab, AIR 1957 SC 216, M.G.Agarwal Vs.
State of Maharashtra, AIR 1963 SC 200,
Noor Khan Vs. State of Rajasthan, AIR 1964
SC 286, Khedu Mohton Vs. State of Bihar,
[1970] 2 SCC 450, Shivaji Sahabrao Bobade
Vs. State of Maharashtra, [1973] 2 SCC
793, Lekha Yadav Vs. State of Bihar,
[1973] 2 SCC 424, Khem Karan Vs. State of
U.P., [1974] 4 SCC 603, Bishan Singh Vs.
State of Punjab, [1974] 3 SCC 288,
1. 2014 [4] Mh.L.J.[Cri.] 353
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Umedbhai Jadavbhai Vs. Sate of Gujarat,
[1978] 1 SCC 228, K.Gopal Reddy Vs. State
of A.P., [1979] 1 SCC 355, Tota Singh Vs.
State of Punjab, [1987] 2 SCC 529, Ram
Kumar Vs. State of Haryana, 1995 Supp [1]
SCC 248, Madan Lal Vs. State of J & K,
[1997] 7 SCC 677, Sambasivan Vs. State of
Kerala, [1998] 5 SCC 412, Bhagwan Singh
Vs. State of M.P. [2002] 4 SCC 85,
Harijana Thirupala Vs. Public Prosecutor,
High Court of A.P., [2002] 6 SCC 470, C.
Antony Vs. K.G.Raghavan Nair, [2003] 1 SCC
1, State of Karnataka Vs. K.Gopalakrishna,
[2005] 9 SCC 291, State of Goa Vs. Sanjay
Thakran, [2007] 3 SCC 755 and Chandrappa
Vs. State of Karnataka, [2007] 4 SCC 415.
It is not necessary to deal with these
cases individually. Suffice it to say that
this Court has consistently held that in
dealing with appeals against acquittal,
the appellate Court must bear in mind the
following: (i) There is presumption of
innocence in favour of an accused person
and such presumption is strengthened by
the order of acquittal passed in his
favour by the trial court, (ii) The
accused person is entitled to the benefit
of reasonable doubt when it deals with the
merit of the appeal against acquittal,
(iii) Though, the powers of the appellate
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Court in considering the appeals
against
acquittal are as extensive as its powers
in appeals against convictions but the
appellate Court is generally loath in
disturbing the finding of fact recorded by
the trial court. It is so because the
trial Court had an advantage of seeing the
demeanor of the witnesses. If the trial
court takes a reasonable view of the facts
of the case, interference by the appellate
Court with the judgment of acquittal is
not justified. Unless, the conclusions
reached by the trial court are palpably
wrong or based on erroneous view of the
law or if such conclusions are allowed to
stand, they are likely to result in grave
injustice, the reluctance on the part of
the appellate Court in interfering with
such conclusions is fully justified; and
(iv) Merely because the appellate Court on
re-appreciation and re-evaluation of the
evidence is inclined to take a different
view, interference with the judgment of
acquittal is not justified if the view
taken by the trial Court is a possible
view. The evenly balanced views of the
evidence must not result in the
interference by the appellate Court in the
judgment of the trial Court.
[Underlines added]
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17. In the light of discussion herein above,
we are of the opinion that there is no merit in
both the Appeals filed by the State. Both the
Criminal Appeals stand dismissed. Bail Bonds, if
any, of accused No.3 - Haridas Daulatrao Kadam,
stands cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUN17
