Bombay High Court

The State Of Maharahstra vs Kondiba Aswale & Others on 23 June, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 358 OF 1999

 The State of Maharashtra,
 Through Police Station,
 Markhel, Tq. Degloor, 
 Dist. Nanded.
                                                  APPELLANT
          -VERSUS-

 1.       Kondiba S/o Gunda Aswale
          (Appeal abated as per Court's
          order dated 27.09.2007)

 2.       Gopal S/o Kondiba Aswale,
          Age : 28 yrs.,

 3.       Namdev S/o Kondiba Aswale,
          Age : 28 yrs.,

 4.       Pundlik S/o Kondiba Aswale,
          Age : 30 yrs.,
  
 5.       Vithal S/o Kondiba Aswale,
          Age : 28 yrs.,

 6.       Shivaji S/o Bhimrao Patil,
          Age : 38 yrs.,

 7.       Tanaji S/o Ramchandra Patil,
          Age : 24 yrs.,

 8.       Gopal S/o Ramchandra Patil, 
          Age : 24 yrs.,

 9.       Vijay S/o Ramchandra Patil,
          Age : 24 yrs.,




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 10. Anant S/o Ramchandra Patil,
     Age : 25 yrs.,

 11. Mohan S/o Gangaram Patil,
     Age : 55 yrs.,

 12. Kondiba S/o Mohan Kere,
     Age : 25 yrs.,

 13. Bhagwan S/o Dnyanoba Patil, 
     Age : 42 yrs.,

          All R/o Yedur (Bk.) Tq. Degloor.
                                          RESPONDENTS
                             WITH

                    CRIMINAL APPEAL NO. 337 OF 1999

 1.       Kondiba S/o Gunda Aswale,
          (Abated as per Court's
          order dated 27.09.2007) 
          (in Appeal No.358/1999)

 2.       Pundlik S/o Kondiba Aswale,
          Age : 33 yrs.,

 3.       Shivaji S/o Bhimrao Patil,
          Age : 41 yrs.,

 4.       Tanaji S/o Ramchandra Patil,
          Age : 27 yrs.,

 5.       Vijay S/o Ramchandra Patil,
          Age : 27 yrs.,

          All. Occ : Agri., R/o. Yedur (Bk)
          Tq. Degloor, Dist. Nanded.
                                     APPELLANTS

          -VERSUS-




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 The State of Maharashtra,
 Through Police Station, Markhel,
 Tq. Degloor, District : Nanded.
                                       RESPONDENT
                              ...
 Mr.   R.V.   Dasalkar,   APP   for   appellant-State   in 
 Appeal No.358 of 1999.
 Mr. U.B. Deshmukh, Advocate for appellant no.3 and 
 holding   for   Mr.   V.D.   Salunke   for   appelalnts   in 
 Appeal No.337 of 1999.
 Mr.   U.B.   Deshmukh,   Advocate   holding   for   Mr.   S.J. 
 Salunke,   Advocate   for   Respondent   Nos.2   to   13   in 
 Appeal No.358 of 1999
 Respondent   No.1   -   abated   in   Appeal   No.   358   of 
 1999.

                                ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.


     DATE OF RESERVING JUDGMENT  : 16TH JUNE,2017.  
     DATE OF PRONOUNCING JUDGMENT: 23rd JUNE, 2017.
                                  

 JUDGMENT (PER S.S. SHINDE, J.):

Criminal Appeal no. 358 of 1999 is filed

by the State challenging the judgment and order of

acquittal passed by the Additional Sessions Judge,

Biloli, Dist. Nanded in Sessions Case no.61 of

1996, thereby acquitting the respondent nos.1 to

13 i.e. original accused nos. 1 to 13 for the

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offences punishable under Sections 148, 307 read

with section 149, Section 337 read with section

149, Section 323 read with section 149 of Indian

Penal Code (for short "I.P.C.") and Section 37(1)

read with section 135 of the Bombay Police Act.

Criminal Appeal No. 337 of 1999 is filed

by original accused nos.1 - Kondiba S/o Gunda

Aswale, accused no.-4 Pundlik S/o Kondiba Aswale,

accused no.6 - Shivaji S/o Bhimrao Patil, accused

no.7 - Tanaji S/o Ramchandra Patil and accused

no.9 - Vijay S/o Ramchandra Patil, challenging the

judgment and order dated 7th August, 1999, passed

by the Additional Sessions Judge, Biloli, District

Nanded in Sessions Case No.61 of 1996, thereby

convicting them for the offences punishable under

Sections 143, 147, 325 read with section 149 of

I.P.C.

2. The prosecution case in nut-shell, is as

under:-

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A) Informant - Sopanrao (PW-1) resides with

his wife Inderbai (PW-2), daughter Rukminibai

(PW-3) and two sons, namely, Dhanaji (PW-4) and

Pundlik (PW-5) at village Yedur. All accused

nos. 1 to 13 are also residing at village Yedur

where an informant is residing. On the previous

day of incident, the quarrel took place in between

the informant's daughter Rukmini and one woman

i.e. relative of accused no.1 Kondiba, at the

river side, and therefore, informant Sopanrao had

accosted the aforesaid woman, who is relative of

accused no.1 Kondiba.

B) On the next day of the aforesaid quarrel

i.e. on 27th December, 1993 at 8:00 a.m., the

informant came out side his house and proceeded to

his field. At that time, accused no.1 Kondiba

pelted one stone, which hit on head of informant

Sopanrao. The accused no.1 asked the informant as

to why he quarreled with the woman, who is his

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relative. Thereupon, accused no.1 Kondiba asked

other persons to beat the informant. Accused no.6

Shivaji Bhimrao Patil and accused no.7 Tanaji

Ramchandra Patil, thereupon beat informant

Sopanrao by means of an iron pipes on his legs,

head, stomach and back, and therefore, the

informant fell down. Rest of the accused assaulted

informant Sopanrao by means of stones, iron pipes

and sticks. Informant Sopanrao sustained bleeding

injuries on his different parts of the body. The

informant's wife, daughter and two sons on

receiving information of the said incident, rushed

to the place of incident and tried to rescue the

informant. At that time, the accused persons also

assaulted the informant's wife (PW-2) and two sons

PW-4 and PW-5. The other persons of the village,

namely Bhaurao, Shamrao, Laxman, Vithal, Gyanoba

and Arjun Malgonda intervened and pacified the

quarrel.

C) Informant Sopanrao was thereafter taken

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to the Police Station, Markhel and he lodged a

report (Exh.31) on 27th December, 1993 at 2 p.m.

On the basis of the said report, the crime was

registered at Police Station, Markhel.

Thereafter, the informant was referred to Civil

Hospital at Degloor for medical treatment. The

informant's wife (PW-2) and two sons (PW-4) and

(PW-5) were also referred to the same Hospital for

medical treatment. Dr. Venakt Malshetwar (PW-10)

examined the aforesaid persons and he found in all

10 injuries over different parts of the body of

informant - Sopanrao. He also found fracture to

the lower end of the left femur with swelling over

left knee joint of informant-Sopanrao. He

thereafter referred the informant to Civil

Hospital, Nanded for further treatment. He also

found injuries over different parts of the body of

informant's wife and two sons. He accordingly

issued certificate (Exh. Nos. 63 to 66) in respect

of the informant and the aforesaid three persons.

He received X-ray plates, as regard the fracture

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found by him over the femur of the informant. On

examination of that X-ray plate, he found that,

there was a fracture of the lower end of left

femur of informant Sopanrao. He accordingly issued

second certificate Exh.67 as regard to the said

injury.

D) Mirza Rahamutula Baig, the Police Sub-

Inspector (PW-11) prepared spot panchnama Exh. 49,

seized the blood stained clothes of informant

Sopanrao, arrested the accused and seized weapons

used by them, namely sticks and pipes in

commission of the aforesaid crime. He also

prepared seizure panchnama in respect of seizure

of the cloths and weapons. He also recorded

statements of other witnesses from 27th December,

1993 to 29th December, 1993. He on completion of

an investigation filed charge sheet against

accused nos. 1 to 13 for the offences punishable

under sections 143, 147, 148, 337, 325, 323 r/w

Section 149 of I.P.C. and under section 37(1) r/w

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Section 135 of the Bombay Police Act in the Court

of Judicial Magistrate, First Class, Degloor.

E) Thereafter, the application (Exh.81) was

made by the A.P.P. before Judicial Magistrate,

First Class, Degloor for addition of offence

punishable under Section 307 of I.P.C. in the

charge sheet and for committal of case to the

Court of Sessions. The Judicial Magistrate, First

Class, Degloor rejected the said application.

However, a revision petition No.32 of 1995 filed

by the learned APP against the rejection of the

said application, came to be allowed by the High

Court on 8th May, 1996, and the High Court directed

in the said revision petition that the offence

under Section 307 of I.P.C. be added in the charge

sheet, and the Magistrate shall proceed with the

case in accordance with the provisions of Code of

Criminal Procedure. Accordingly, section 307 of

I.P.C. was added in the charge sheet. As the case

was exclusively triable by the Court of Sessions,

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the Judicial Magistrate, First Class, Degloor

committed the case to the Court of Sessions.

F) The Sessions Court framed charge at

Exh.13 against accused nos. 1 to 13 for the

offences punishable under sections 143, 147, 148,

307 read with section 149 I.P.C., section 337 read

with section 149 of I.P.C., section 323 read with

section 149 of I.P.C. and under Section 37(1) r/w

Section 135 of the Bombay Police Act. The charges

were read over and explained to each of the

accused in vernacular, to which they pleaded not

guilty and claimed to be tried. The defence of

the accused is of total denial.

G) The statements of the accused persons

under Section 313 of the Code of Criminal

Procedure were also recorded and the suggestions

were given by the defense counsel to informant

Sopanrao during the cross examination and the

defence of the accused was that informant

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Sopanraro and his family members were proceeding

on a Bullock Cart, and at that time, the said

Bullock Cart was overturned, and the informant and

his family members sustained injuries, however,

the false case is filed against them due to

politics in the village.

3. After recording the evidence and

conducting full fledged trial, the trial Court

convicted accused nos.1, 4, 6, 7 and 9 for the

offences punishable under sections 143, 147, 325

read with section 149 of I.P.C. The trial Court

then acquitted all the accused persons for the

offences punishable under sections 148, 307 read

section 149, section 337 read with section 149,

section 323 read with section 149 of the I.P.C.

And section 37(1) read with section 135 of the

Bombay Police Act. So also the trial Court

acquitted accused nos. 2, 3, 5, 8 and 10 to 13 for

the offences punishable under sections 143 and 147

of the I.P.C. Hence Criminal Appeal No. 358 of

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1999 is filed by the State against the judgment

and order of acquittal and Criminal Appeal

No.337/1999 is filed by the original accused

nos.1, 4, 6, 7 and 9 against the judgment and

order of conviction.

4. While arguing the appeal filed by the

State, the learned A.P.P. appearing for the State

submits that, keeping in view the injuries

sustained by informant Sopanrao and also the

evidence of the prosecution witnesses, the trial

Court ought to have convicted the accused for the

offence punishable under section 307 read with

section 34 of the I.P.C. He submits that, out of

13 accused, who were tried by the trial Court, the

trial Court acquitted some of the accused, without

appreciating the prosecution case that, there are

overwhelming evidence of eye witnesses, which gets

corroboration from the medical evidence and also

recovery of pipes and sticks. Therefore, he

submits that, the appeal filed by the State

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deserves to be allowed.

On the other hand, the learned counsel

appearing for the original accused invites our

attention to the evidence of the prosecution

witnesses and submits that, the evidence of the

prosecution witnesses suffers from contradictions

and improvements. It is submitted that, the

medical evidence clearly demonstrates that, an

alleged incident has not taken place at one time

and it appears that, there are more than one

incidents. It is further submitted that, it is the

case of the prosecution that, there were number of

persons gathered at the spot and in that

background, it was not possible for the witnesses

to identify the accused. In such a mob, there can

be a mistake in identity. An overt act attributed

qua each of the accused and also an alleged

injuries sustained by Sopanrao and other witnesses

do not disclose any grievous injuries, which is

sufficient in ordinary course to cause death of

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Sopanrao and any other witnesses. It is submitted

that, the trial Court, after taking into

consideration the entire evidence on record, has

extended the benefit of doubt and acquitted them

for an offence punishable under section 307 read

with 34 of I.P.C. It is submitted that, in first

place, an alleged incident had never taken place

and the witnesses have suffered injuries in an

accident. Secondly, even if, without admitting but

assuming that, such incident had taken place,

keeping in view the number of persons gathered at

the spot of incident and an alleged weapons used

by the accused, there is every possibility of

mistake in identity by the prosecution witnesses,

and therefore, in such a situation the benefit of

doubt deserves to be given in favour of the

accused. It is submitted that, after proper

scrutiny of the evidence, the trial Court has

taken a plausible view and acquitted 8 accused

from all the charges levelled against them and in

fact the said benefit ought to have been extended

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even in favour of the appellants in Criminal

Appeal no.337 of 1999. The seizure of the alleged

weapons is made after 3 months and 11 days of the

incident, therefore, it create doubt in the

prosecution case of seizure of such weapons.

Sopanrao (PW-1) has never stated in his evidence

that, the injuries are caused in the said

incident, and his mere contention is that, the

accused assaulted him by means of sticks, stones

and pipes. There are discrepancies as regards the

age of the injuries, which are brought on record

by the prosecution. Wheel marks of the bullock

cart were appearing over the body of Sopanrao, and

therefore, the said supports the defence plea. The

reasonings and findings given by the trial Court

are not based on the evidence of the prosecution

witnesses and those are contrary to the evidence

brought on record. The prosecution examined only

interested witnesses and left out independent

witnesses, who could have thrown the light on the

real incident. The ocular evidence is not

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supported by the medical evidence. There is no

specific role attributed to the appellants-

original accused in Criminal appeal no. 337 of

1999 by the informant in the first information

report. It is submitted that, belatedly the

supplementary statement of Sopanrao was recorded

and he falsely implicated some of the accused. The

sum and substance of the arguments of the learned

counsel appearing for the accused is that, in

first place, the incident as alleged had never

happened. Secondly, the prosecution has tried to

suppress the genesis of the incident. In support

of said contentions, he placed reliance in the

case of State of M.P. V/s Mishrilal and others1. It

is the case of the prosecution that, informant -

Sopanrao and other prosecution witnesses have

sustained the injuries in an accident. Without

admitting but assuming that, the incident had

taken place, the medical report, and in

particular, the age of the injuries clearly shows

1 2015 1 JLJ 153

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that, there was more than one incident. However,

the prosecution has suppressed the other incident,

if any. It is submitted that, there was no motive

or intention to assault Sopanrao and other

prosecution witnesses, as it is apparent from the

prosecution case that, the accused were not

possessing any deadly weapons. In support of

aforesaid contentions learned counsel pressed into

service an exposition of law in the case of

Krishnegowda and ors V/s State of Karnataka by

Arkalgud Police2. Therefore, relying upon the

grounds taken in the appeal memo, the learned

counsel submits that, the incident had taken place

20 years back, and therefore, the benefit of doubt

deserves to be extended in favour of the accused.

He submits that, the appeal filed by the

appellants - original accused may be allowed and

the appeal filed by the State may be dismissed.

Without prejudice to arguments already

2 2017 Supreme (SC) 289

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advanced, by way of alternate submission, he

argued that, in case this Court is not inclined to

entertain the appeal filed by original accused, in

that case, the benefit under the provisions of

Probation of Offenders Act, 1958 may be extended

in favour of them, since there are no previous

criminal antecedents against the accused.

5. We have heard the learned A.P.P.

appearing for the appellant/State in Criminal

Appeal No.358/1999 and the learned counsel

appearing for the appellants/original accused in

Criminal Appeal No.337/1999 and the

respondents/original accused in Criminal Appeal

No.358/1999 at length. With their able assistance,

we have carefully perused the entire evidence

brought on record by the prosecution.

6. It would be relevant to discuss the

evidence of the prosecution witnesses, who claimed

that, they have witnessed the incident. Sopanrao

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Vithalrao Sherekar in his deposition stated that,

Kondiba Gunda (accused no.1) pelted stone on his

back, which caused injury to him. He further

stated that, Gopal (accused no.2) gave blow with

pipe on his chest, Pundlik (accused no.4) gave

pipe blow on his left thigh, Vithal (accused no.5)

gave blow of pipe on his waist, Shivaji (accused

no.6) pelted stone on his left knee joint and also

hit stone on his right shoulder, Tanaji (accused

no.7) hit water pipe on his head, Gopal (accused

no.8) hit with pipe on left side of his back and

gave blow on his neck and Vijay (accused no.9)

gave pipe blow on his chest. He further stated

that, Anant (accused no.10) gave pipe blow on his

back, Mohan (accused no.11) beat with stick on

left side ribs, Kondiba Mohan (accused no.12) beat

him with stick on right thigh and Bhagwan (accused

no.13) hit stone on his right wrist. So far role

and overt act attributed to Kondiba Gunda by