Bombay High Court
The State Of Maharashtra vs Gunderao Badgane &Ors.; on 8 November, 2017
Bench: T.V. Nalawade
Cri. Appeal No. 566/2001
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 566 OF 2001
The State of Maharashtra,
Through P.S.O. Udgir,
District Latur. ....Appellant.
Versus
1. Gunderao s/o. Ganpat Badgane,
Age 30 years, Occu. Agriculture,
2. Bapurao s/o. Ganpat Badgane,
Age 32 years, Occu. Agriculture,
3. Rambhabai w/o. Ganpat Badgane,
Age 53 years, Occu. Agriculture,
4. Govinda s/o. Narsing Badgane,
Age 60 years, Occu. Nil,
5. Vithal s/o. Hulappa Badgane,
Age 34 years, Occu. Agriculture,
6. Narsing s/o. Govind Badgane,
Age 45 years, Occu. Business,
All R/o. Ravi, Tq. Mukhed,
Dist. Nanded.
(Appeal is abated as against
respondent Nos. 1 & 4 as per
Hon'ble Court's order dated
13.10.2017) ....Respondents.
Mr. V.S. Badakh, APP for appellant/State.
Dr. Supriya L. Pansambal h/f. Mr. V.D. Gunale, Advocate for
respondents.
CORAM : T.V. NALAWADE AND
ARUN M. DHAVALE, JJ.
DATED : November 8, 2017
Cri. Appeal No. 566/2001
JUDGMENT : [PER T.V. NALAWADE, J.]
1) The appeal is filed against judgment and order of
Sessions Case No. 19/2001 (Old No. 185/1997), which was pending
in the Court of Additional Sessions Judge, Udgir. The respondents are
acquitted of the offences punishable under sections 302, 201, 34
etc. of Indian Penal Code ('IPC' for short). Both the sides are heard.
2) In short, the facts leading to the institution of the
present proceeding can be stated as follows :-
Deceased Ganpat Hulappa Badgane was the father of
accused Nos. 1 to 3. Accused No. 5 is real brother of the deceased
and accused No. 4 is the father of accused No. 6.
3) The incident in question took place on 16.6.1997 at 7.30
a.m. in the field of deceased bearing Survey No. 713 of Dhadaknal.
The deceased was not listening to his sons and he was not allowing
his sons to cultivate the land and he was not effecting partition of
the property. At the time of incident, all the accused went to the
field. The deceased was doing some agricultural operation and he
was having axe. Same axe was used by the accused and by using
that axe, Gunderao gave blows on the person of Ganpat. Others took
part in the incident by holding the deceased when the assault was
being made and the widow of the deceased was instigating others to
Cri. Appeal No. 566/2001
finish him. The dead body of Ganpat was taken to village Ravi and
there, it was burnt by the accused persons. Nobody gave report in
respect of this incident. One anonymous application was received in
which the aforesaid incident was disclosed. Police of Udgir Rural
Police Station made investigation of the matter and then the persons
of that village disclosed the aforesaid incident.
4) Sundarabai Badgane is aunt of the deceased and Sopan
is grandson of Sundarabai. Their land is adjacent to the land Survey
No. 713 and on that morning by chance they had witnessed the
incident.
5) During investigation, accused No. 1 Gunderao, son of
deceased gave statement under section 27 of the Evidence Act to
police and on the basis of that statement, one axe came to be
recovered from the house. The axe came to be seized. The
prosecution examined aforesaid two eye witnesses and examined
witnesses to prove the recovery of weapon at the instance of
accused No. 1 Gunderao. In all seven witnesses were examined by
the prosecution. Accused took the defence of total denial.
6) The Trial Court convicted Gunderao, accused No. 1 for
offence punishable under section 304, Part II of IPC and he was
Cri. Appeal No. 566/2001
sentenced to suffer rigorous imprisonment for ten years. In this
appeal, it was submitted that accused No. 1 Gunderao and accused
No. 4 Govinda are dead and after verification, the proceeding as
against them is ordered to be abated. The remaining respondents
are acquitted by the Trial Court.
7) The prosecution case rests mainly on the evidence of
Sundarabai (PW 5) and her grandson Sopan (PW 6). Only on the
basis of their evidence, the case of prosecution that incident took
place on 16.6.1997 at 7.30 a.m. in the land of Ganpat can be
presumed. The evidence given by prosecution does not show that
anything was noticed in this land in the month of July when police
realized that incident had taken place in the land of Ganpat on
16.6.1997. It appears that some witnesses are examined like
Gyanoba (PW 4) showing that many persons had attended the
funeral which had taken place at village Ravi and he had even seen
blood on the clothes of Ganpat. However, according to him, no
initiative was taken by him and the information was not passed by
him to anybody including the police. The evidence of Sayed Noor
(PW 1) shows that he made some investigation which is mainly of
recording statements and recovery of weapon. But, he could not
collect material on the basis of which it can be inferred that incident
did really take place in the field of Ganpat as stated by the aforesaid
Cri. Appeal No. 566/2001
two witnesses.
8) Police statements of the witnesses were recorded after
more than one month of the incident. Both Sundarabai (PW 5) and
Sopan (PW 6) have deposed that on that morning, they saw incident
from their own field and they noticed that Gunderao was assaulting
the deceased with axe and other accused were present in the
vicinity. Accused Govind Badgane is brother of her husband. In her
evidence, she has specifically taken names of Gunderao and widow
of the deceased. The name of one Bapurao is also taken, but active
role is attributed only to Gunderao. The evidence of Sopan, who was
aged about 14 years on the date of deposition i.e. 6.7.2001 shows
that he has taken the names of Bapurao, Gunderao, Vithal and
Rambhabai. He has also attributed the role of assault to Gunderao
only. The statements under section 164 of Criminal Procedure Code
were recorded and they were confronted to them during cross
examination.
9) The discussion of the evidence shows that the funeral
was not completed secretly and more than 50 persons had attended
the funeral. Only one of those persons had come forward, but his
police statement was belated. Similarly, statements of so called
aforesaid two eye witnesses were recorded late i.e. after about one
Cri. Appeal No. 566/2001
month of the date of incident. The map of scene of offence is not
prepared and it is not possible to say anything as to from how much
distance these two witnesses could have seen the incident.
10) Even if the evidence given by the aforesaid two
witnesses is accepted and relied upon as it is, it can be said that the
evidence is mainly against Gunderao and he is dead. In view of
these circumstances, this Court holds that it is not possible to
interfere in the decision of the Trial Court by which the remaining
accused/ respondents are acquitted. In the result, the appeal stands
dismissed.
[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]
ssc/
