The State Of Maharashtra vs Sankosh Bhalerao
2017 Latest Caselaw 3692 Bom

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                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.432 OF 2000

 The State of Maharashtra,
 Through Public Prosecutor,
 High Court, Bench at Aurangabad.

                                 ...APPELLANT 
        VERSUS             

 Sankosh s/o Tukaram Bhalerao,
 Age-22 years, Occu:Agri. & Labour,
 R/o-Malkapur, Tq-Latur.   
                                 ...RESPONDENT
                               (Ori. Accused No.2)

                      ...
   Mr. A.R. Borulkar, A.P.P. for  Appellant- State.
   Mr. Abhay Rathod Advocate for Respondent.       
                      ...

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

DATE : 28TH JUNE, 2017

ORAL JUDGMENT [PER S.S. SHINDE, J.] :

1. This Appeal is preferred by the State

challenging the Judgment and order dated 27th July,

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2000, passed by the Additional Sessions Judge,

Latur in Sessions Case No.151 of 1997, thereby

acquitting original accused No. 2/ Respondent -

Sankosh s/o Tukaram Bhalerao from the offence

punishable under Section 324 of the Indian Penal

Code (in short "I.P. Code").

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

under :-

(A) It is alleged by the prosecution that on

15th April, 1997 at about 7.00 p.m. the original

accused Nos.1 to 12 have formed an unlawful

assembly in front of Samaj Mandir i.e. community

hall at village Malkapur, Tq-Udgir. The common

object of such assembly was to assault PW-4

Shrihari and to cause his death. The accused were

armed with deadly weapons, viz. knives, and

thereby the accused have committed an offence of

rioting with dangerous weapon punishable under

Section 147 and 148 of the I.P. Code.

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(B) It is further alleged by the prosecution

that accused Nos.1 and 2 being members of such an

unlawful assembly, and in prosecution of their

common object to assault and cause death of the

informant Shrihari (PW-4), accused Nos.1 and 2

have given knife blows at the back and head of the

informant Shrihari (PW-4), and thereby attempted

to commit his murder, and as such accused Nos.1 to

12 are vicariously liable for punishment under

Section 307 read with Section 149 of the I.P.

Code, and in alternate individually for the

offence of murderous attack punishable under

Section 307 of the I.P. Code.

(C) It is the case of the prosecution that

the proclamation was issued under Section 37(1)(3)

of the Bombay Police Act by the District

Magistrate, Latur prohibiting formation of any

assembly. Accused however have formed an unlawful

assembly with deadly weapons, in contravention of

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the proclamation, and thereby committed an offence

punishable under Section 135 of the Bombay Police

Act.

(D) It is the case of the prosecution that

all the accused i.e. accused Nos.1 to 12 are

resident of village Malkapur, Tq-Udgir. The victim

PW-4 Shrihari is also resident of the same village

Malkapur. He is employee of one poultry farm of

one Shivaji.

(E) It is the case of the prosecution that

one Sopan Souda Bhalerao has gifted his plot

admeasuring 20 X 25 foot for the construction of

community hall at village Malkapur. Panchayat

Samiti, Udgir has constructed community hall upon

said disputed plot, allegedly gifted by Sopan

Bhalerao, in the year 1987. The accused are

claiming that the said plot is owned by them.

Often quarrel used to take place on account of

ownership of the plot in between accused one side,

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the owner Sopan Bhalerao and the prosecution

witness PW-4 Shrihari, PW-3 Shrawan Bhalerao etc.

on another side. The suits and appeals are pending

in the Court for adjudication of title of the

plot. The villagers used to celebrate birth

anniversary of Dr. Babasaheb Ambedkar in the said

community hall constructed by Panchayat Samiti

upon the disputed plot.

(F) On 14th April, 1997 birth anniversary of

Dr. Babasaheb Ambedkar was celebrated in the

community hall. Injured PW-4 Shrihari attended the

anniversary function in the community hall. PW-5

Sakhubai is sister of PW-4 Shrihari. It is alleged

abused PW-5 Sakhubai, as her brother informant

PW-4 Shrihari attended the anniversary function at

the disputed community hall premises. PW-5

Sakhubai informed the said incident of abusing her

to PW-4 Shrihari on his return from duty, in the

evening. PW-4 Shrihari asked accused Nos.1 and 2,

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as to why they had abused his sister PW-5

Sakhubai. Some altercation took place between

them. Accused Nos.1 and 2 called accused Nos.3

to 12 who were sitting nearby the community hall.

In response to such call, it is alleged that

accused Nos.3 to 12 assembled, armed with deadly

weapons in front of the community hall. Accused

Nos.3 to 12 started pelting stones and abused PW-4

Shrihari and instigated accused Nos.1 and 2 to

assault him. Accused No.1 taken out a knife and

gave knife blow to backside ribs of Shrihari

causing him bleeding injury. Accused No.2 gave

knife blow to the head of PW-4 Shrihari causing

him bone deep injury. On hearing noise of

commotion, the neighbouring eye witnesses, i.e.

PW-2 Sunanda Kamble, PW-3 Shrawan Bhalerao, PW-6

Ram Bhalerao, PW-5 Sakhubai and PW-8 Manohar

arrived to the spot and they have witnessed the

incident. PW-5 Sakhubai tried to snatch knife from

the hand of accused No.1 and thereby sustained

bleeding injuries to her palm. PW-4 Shrihari was

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taken to the police station. Police referred him

to the hospital and thereafter he lodged complaint

to the police station, Udgir and the offence

bearing Crime No.53 of 1997 was registered.

(G) Investigating Officer Mr. Mundhe, police

head constable carried out the investigation, drew

panchnama of scene of offence, the blood stained

clothes of injured PW-4 Shrihari were seized.

Accused were arrested. At the instance of accused,

the weapons were seized under panchnama. The case

was committed to the Court of Sessions at Latur.

The trial Court framed the charge against accused

Nos.1 to 12. The accused persons pleaded not

guilty and claimed to be tried.

3. After recording the evidence and

conducting full fledged trial, the trial Court

convicted accused No.1 for the offence punishable

under Section 324 of the I.P. Code and sentenced

him to suffer rigorous imprisonment for three

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months and to pay fine. The trial Court acquitted

rest of the accused i.e. accused Nos.2 to 12 from

the offences with which they were charged. Hence

this Appeal by the State against acquittal of

original accused No.2 from the offence punishable

under Section 324 of the I.P. Code.

4. Learned A.P.P. appearing for the

State invites our attention to the evidence of the

prosecution witnesses and in particular, evidence

of PW-4 Shrihari Pundlik Kamble and submits that

his evidence gets corroboration from the evidence

of other eye witnesses and also from the medical

evidence. He further submits that the trial Court

has accepted the evidence of prosecution witnesses

and also the medical evidence, however, wrongly

acquitted accused No.2 - Sankosh s/o Tukaram

Bhalerao. It is submitted that it has come in the

evidence of PW-4 Shrihari that when he returned

from his duty at about 5 p.m. in his house, his

sister Sakhubai informed him that accused Nos.1

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and 2 had abused her. Therefore, he asked accused

No.1 as to why he had given abuses to Sakhubai,

sister of PW-4. The accused No.1 replied that he

would also beat PW-4. Meanwhile accused No.2

instigated to caught hold PW-4 and then accused

No.2 gave a knife blow to the head of PW-4.

Therefore, it is submitted that when accused No.1

is convicted for the offence punishable under

Section 324 of the I.P. Code, in that case even

accused No.2 Sankosh s/o Tukaram Bhalerao ought to

have been convicted for the same offence. It is

submitted that all the eye witnesses, except PW-2,

stated that accused No.2 i.e. Respondent herein

also inflicted blows by knife. PW-4 Shrihari

sustained five injuries and out of them some of

the injuries are on vital part. Medical officer

was examined by the prosecution. Therefore, he

submits that there was no reason for the trial

Court to acquit the Respondent1 and the view taken

by the trial Court was not possible view.

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5. On the other hand, learned counsel

appearing for the Respondent invites our attention

to the findings recorded by the trial Court and

submits that those are in consonance with the

evidence brought on record and there is no any

factual or legal infirmity and therefore the

impugned Judgment and order deserves no

interference. He submits that the Investigating

Officer who conducted the investigation, was not

examined by the prosecution. It is submitted that

evidence of the alleged eye witnesses suffers from

serious omissions, contradictions and improvements

and makes it unbelievable. The trial Court, after

considering different versions stated by the eye

witnesses about the role of the Respondent in the

incident, has taken a possible view and acquitted

the Respondent.

6. We have given careful consideration to

the submissions of the learned A.P.P. appearing

for the Statements and learned counsel appearing

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for the Respondent. With their able assistance, we

have perused the entire evidence so as to find out

whether the findings recorded by the trial Court

are in consonance with the evidence on record or

otherwise.

7. It is true that there are as many as five

eye witnesses and their evidence has been believed

by the trial Court so as to convict accused No.1 -

Vilas s/o Hanmant Bhalerao for the offence

punishable under Section 324 of the I.P. Code.

However, at this stage it would be relevant to

discuss the evidence of PW-4 Shrihari Pundlik

Kamble, who was the informant and was injured in

the incident. In his deposition before the Court

he stated that he knows all the accused. Present

incident had taken place before three years of

recording his evidence. The incident had taken

place on 2nd day of Dr. Babasaheb Ambedkar Birth

Anniversary. The said incident was taken place at

the evening time when he returned from his

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official duty at about 5.00 p.m., at which time

his sister Sakhubai informed him that accused

Nos.1 and 2 had abused her. Therefore he asked

accused No.1 as to why he abused Sakhubai and

thereafter there was some altercation between

accused No.1 and witness himself. Accused No.2

instigated to caught hold the witness. Accused

No.1 then gave a knife blow at the right side rib

of his chest. Accused No.2 gave knife blow to his

head. Accused No.1 attempted to give another knife

blow to him but that blow was defended by his

sister Sakhubai by snatching the knife. He further

stated that both the palms of Sakhubai got injured

in the said incident. PW-4 Shrihari also sustained

bleeding injury to his head. He has further

narrated the details about the manner in which

accused assaulted him. Upon careful perusal of his

evidence, he stated that accused Nos.5 and 8 did

not come to the place of incident. Accused Nos.2,

4, 6, 7, 9, 11 and 12 have pelted stones.

Thereafter he was taken to the civil hospital and

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thereafter he lodged the complaint. During his

cross-examination, he reiterated his statements in

examination-in-chief.

8. However, if we peruse the evidence of

another eye witness i.e. PW-2 Sunanda Murhari

Kamble, in her evidence she stated that accused

No.1 gave blow by knife to the back of Shrihari

and accused No.2 gave sword blow to the head of

Shrihari. Shrihari thereby sustained bleeding

injury to the head and to his back. Even in her

cross-examination she reiterated her statement in

examination-in-chief that accused No.2 gave blow

by sword on the head of PW-4 Shrihari. Presence of

PW-2 Sunanda at the spot is stated by other

prosecution witnesses, including PW-5 Sakhubai.

It is also relevant to make reference to the

evidence of PW-6 Ram Maruti Bhalerao, who was also

eye witness to the incident. In his evidence, he

stated that accused No.1 gave knife blow to the

rib back side of PW-4 Shrihari. Accused No.2 took

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knife from accused No.1 and then accused No.2 gave

knife blow to the head of PW-4 Shrihari.

9. Upon comparative account of all the above

three eye witnesses, it is clear that all the

three eye witnesses have stated different version

so far weapon used by accused No.2 in the alleged

commission of offence. As already observed the

deposition of PW-2 Sunanda cannot be brushed aside

when the prosecution is approaching with two

versions that accused No.2 assaulted PW-4 by sword

and another witness says that blow was by knife

and third witness says that knife was snatched by

accused No.2 from accused No.1 and then blow was

given. In that case the trial Court was justified

in giving benefit of doubt in favour of accused

No.2 i.e. Respondent herein. Apart from it,

alleged recovery of knife from the Respondent is

not supported by the panch witness. As already

observed, the Investigating Officer was not

examined by the prosecution. We do not think it

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necessary to lengthen this Judgment by reiterating

the findings recorded by the trial Court. Suffice

it to say that the findings recorded by the trial

Court are in consonance with the evidence brought

on record by the prosecution and the view taken by

the trial Court in acquitting the accused No.2

i.e. Respondent herein, is a possible view. This

Appeal is preferred only against original accused

No.2 - Sankosh s/o Tukaram Bhalerao, therefore we

need not travel beyond the case of the prosecution

qua Respondent - Sankosh s/o Tukaram Bhalerao.

10. For the reasons aforesaid, we do not find

any merit in the Appeal. Hence the Appeal stands

dismissed. The bail bonds, if any, of the

Respondent, shall stand cancelled.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUN17