Bombay High Court
The State Of Maharashtra vs Shivaji Ramchandra Shelke & Ors on 20 January, 2018
Bench: A.M. Badar
APPEAL-1313-2002-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1313 OF 2002
THE STATE OF MAHARASHTRA )...APPELLANT
V/s.
1) SHIVAJI RAMCHANDRA SHELKE )
2) PRABHAKAR RAMCHANDRA SHELKE )
3) ASHOK VAMAN UTEKAR )
4) SANTOSH JANU KHARMARE )
5) TANAJI GOVIND BHALEKAR )
6) MURLIDHAR JANU KHARMARE )
7) KALURAM GOVIND MHASKAR )
8) RAGHUNATH SAKHARAM KHARMARE )
9) DASHRATH RAMCHANDRA SHELKE )
10) CHINDHU PANDU KHARMARE )
11) BHAGWAN HIRU KHARMARE )
12) ANKUSH RAGHO KHARMARE )
13) HARIBHAU GANPAT KHARMARE )
14)VASANT HARISHCHANDRA KHARMARE )
(since deceased, case abated) )
15) LAXMAN RAGHO KHARMARE )...RESPONDENTS
Mr.Prashant Jadhav APP for the Appellant - State.
None for the Respondents.
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APPEAL-1313-2002-J.doc
CORAM : A. M. BADAR, J.
DATE : 20th JANUARY 2018
JUDGMENT :
1 By this appeal, the appellant/State is challenging the
judgment and order dated 18th June 2002 passed by the learned
Sessions Judge, Raigad at Alibaug, in Sessions Case No.31 of
1997, thereby acquitting the respondents/accused persons of
offences punishable under Sections 3(1)(vii) and 3(1)(xv) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, as well as under Sections 365 and 342 read
with 34 of the Indian Penal Code.
2 Facts leading to the prosecution of the
respondents/accused persons can be summarized thus :
(a) First Informant/PW4 Pandit Shelke lodged report on 23rd
October 1997 against respondents/accused persons leading
to the registration of Crime No.50 of 1997 in Police Station
Karjat for offences punishable under Sections 365, 342 read
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with 34 of the Indian Penal Code as well as for offences
punishable under Sections 3(1)(vii) and 3(1)(xv) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
(b) According to the prosecution case, on 25th October 1997,
there was election to the group Gram Panchayat of
Kondivade. First Informant/PW4 Pandit Shelke had filed his
nomination form for the said election from Congress-I party.
Original accused no.14 Vasant Kharmare (since deceased)
had also filed his nomination form for the post of Member of
the Gram Panchayat from Shivsena party. It is case of the
prosecution that because of this contest in the election,
deceased accused no.14 Vasant Kharmare was harbouring
grudge against PW4 Pandit Shelke. For defeating him in the
election, at about 3.30 a.m. of 23rd October 1997, accused
no.14 Vasant Kharmare (since deceased) along with the
accused abducted PW1 Bhagwan Pawar, PW2 Krishna
Waghmare and other 12 voters of PW4 Pandit Shelke.
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According to the prosecution case, abducted persons
belonged to Scheduled Tribes (Katkari). Accused persons
had taken them by a tempo to a room at Dombivli-
Kopargaon, and confined them at that place. The incident in
question was witnessed by PW4 Pandit Shelke and he as well
as his party persons started searching the abducted voters.
During the course of that search, PW3 Keshav Shelke
accompanied by Shantaram met him and disclosed the
whereabouts of the abducted persons.
(c) Routine investigation followed in pursuant to the First
Information Report (FIR) lodged by PW4 Pandit Shelke. On
completion thereof, the respondents/accused persons along
with deceased Vasant Kharmare came to be charge-sheeted
for offences punishable under Sections 365, 342 read with
34 of the Indian Penal Code as well as for offences
punishable under Sections 3(1)(vii) and 3(1)(xv) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. They pleaded not guilty to the charge
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framed against them and claimed trial. During pendency of
the trial, original accused no.14 Vasant Kharmare died and
case against him stood abated.
(d) In order to bring home the guilt to the respondents/accused
persons, the prosecution has examined in all five witnesses.
Bhagwan Pawar and Krishna Waghmare, who were allegedly
abducted by accused persons are examined as PW1 and PW2
respectively. Keshav Shelke, who allegedly escaped from the
confined place is examined as PW3. First Informant Pandit
Shelke is examined as PW4 whereas, Investigating Officer
Assistant Police Inspector Dayanand Dhome of Karjat Police
Station is examined as PW5. Defence of the
respondents/accused persons was that of total denial. After
hearing the parties, by the impugned judgment and order,
the learned trial court concluded that the evidence adduced
by the prosecution is not trustworthy and reliable.
Accordingly, the respondents/accused persons came to be
acquitted.
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3 I have heard Shri S.V.Gavand, the learned APP,
appearing for the appellant/State. He vehemently argued that
evidence of PW1 Bhagwan Pawar, PW2 Krishna Waghmare and
PW3 Keshav Shelke is sufficient to establish the fact that they were
abducted by the respondents/accused persons and were
wrongfully confined in order to see that they would not vote in
the ensuing Gram Panchayat elections. The prosecution, as such,
has established offences alleged against them. None appeared for
the respondents/accused persons in this old appeal of the year
2002.
4 I have carefully considered the submissions advanced
by the learned APP and also perused the entire record and
proceedings. It is case of the prosecution that about 14 to 15
persons belonging to "Katkari" - a scheduled tribe came to be
abducted by accused persons in order to prevent them from voting
PW4 Pandit Shelke - a candidate for the post of Member of Gram
Panchayat from Congress-I party, and for that purpose, they were
compelled to leave their houses at Village Salpe in Karjat Taluka of
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Raigad district. PW1 Bhagwan Pawar, PW2 Krishna Waghmare
and PW3 Keshav Shelke have not deposed anything about the fact
that abducted persons are belonging to the scheduled tribe having
meaning assigned to the said term under Clause 25 of Article 366
of the Constitution of India. Evidence of Investigating Officer
Dayanand Dhome, Assistant Police Inspector, Karjat Police Station,
is also conspicuously silent on this aspect. Thus, for want of
evidence to that effect, it cannot be said that respondents/accused
persons compelled members of the scheduled tribe to leave their
houses in order to prevent them from voting PW4 Pandit Shelke -
a candidate for the post of Member of the Gram Panchayat,
Kondivade. That apart, as per Rule 7 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Rules 1995,
investigation of the offence committed under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is
required to be done by the Police Officer not below the rank of the
Deputy Superintendent of Police. However, in the case in hand,
the investigation of the crime in question is done by PW5
Dayanand Dhome, Assistant Police Inspector of Karjat Police
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Station. In this view of the matter, the charge for offences
punishable under Sections 3(1)(vii) and 3(1)(xv) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, cannot be said to be proved.
5 Now let us examine whether accused persons or any of
them, had abducted the alleged victim of the crime in question
and wrongfully confined them at Dombivli. PW1 Bhagwan Pawar
and PW2 Krishna Waghmare have unanimously stated that the
accused persons came and took them out of the hut and directed
them to sit in the tempo. That tempo proceeded towards Karjat
and they were then taken to Dombivli and confined to one room.
However, if we look at cross-examination of both these witnesses,
then it becomes clear that neither of them had assigned any
specific role to any of the accused persons. Evidence of both these
alleged victims of the crime in question is conspicuously silent
about the role, if any, played by each of the accused persons, who
were standing for trial. Cross-examination of both these witnesses
reveals that during the course of journey, persons who had taken
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them had left the tempo and then the tempo in which they were
travelling, proceeded to Dombivli. There is nothing to infer from
evidence of both these witnesses that those were accused persons,
who had confined the victims including PW1 Bhagwan Pawar and
PW2 Krishna Waghmare to a room in Dombivli. On the contrary,
both these witnesses have candidly stated that none of the accused
persons had come to Dombivli. As such, it is not possible to hold
that the respondents/accused persons had wrongfully confined
PW1 Bhagwan Pawar and PW2 Krishna Waghmare along with
other alleged victims of the crime in question.
6 So far as PW3 Keshav Shelke is concerned, his
evidence is inherently improbable. He deposed that at about 3.30
a.m. in the morning, he proceeded from his house for joining duty.
He has not clarified which duty he intended to join at 3.30 a.m. of
23rd October 1997. It is not probable and acceptable that office
hours or working hours of any establishment starts at such early
morning hours. As per his version, when he was proceeding to
join duty, accused Raghunath and Vasant came in a jeep and asked
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him to sit in the jeep. By that jeep, then he was taken to Dombivli.
This witness has not spoken that any force was applied to him for
making him to sit in the jeep, or that, he was threatened by those
two accused persons for compelling him to sit in the jeep. This
witness further deposed that, then the jeep was taken to
Kopergaon by two unknown persons. At that time, 11 adivasis
were brought in a tempo. They all were taken to one room in the
fourth floor where they were locked inside the room. Evidence of
this witness is conspicuously silent in respect of role of any of the
accused persons in wrongful confinement of the alleged victims of
the crime in question. On the contrary, he is stating that two
unknown persons had taken him in the jeep to the destination. In
further part of his evidence, PW3 Keshav Shelke disclosed that he
managed to escape from that wrongful confinement along with a
person named Shantaram and then narrated the incident to PW4
Pandit Shelke, when PW4 Pandit Shelke was present at the Police
Station.
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7 Now let us examine what PW4 Pandit Shelke deposed
about the incident by claiming to be an eye witness for the same.
Prior to that, it needs to be put on record that the incident
allegedly triggered because PW4 Pandit Shelke and deceased
accused Vasant Kharmare were contesting Gram Panchayat
election as rival candidates fielded by Congress-I party and
Shivsena party respectively. It appears from cross-examination of
PW4 Pandit Shelke that during pendency of the trial, this accused
no.14 Vasant Kharmare came to be murdered. Paragraph 6 of
cross-examination of First Informant PW4 Pandit Shelke shows
that he himself was one of the accused in the case of murder of
Vasant Kharmare and he came to be convicted in that case.
Keeping in mind this aspect, let us see whether PW4 Pandit Shelke
is a witness of truth. This witness claims to have seen accused
persons abducting about 11 adivasis at about 3.30 a.m. of 23 rd
October 1997. He stated that in a tempo bearing registration
no.MH-05 H-400, Vasant Kharmare (deceased accused) and his
party members had abducted the victims. According to PW4
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Pandit Shelke, this incident took place in his presence. His cross-
examination reveals that PW4 Pandit Shelke was having
motorcycle and the police station was within his reach. It was at a
distance which could have been travelled within twenty minutes.
This witness affirmed that he was sure that the accused persons
had taken away the victims in the vehicle. Subsequent conduct of
this witness is strange. He did not got to the police station though
he noticed taking of ten to twelve persons from his party by
accused persons at about 3.30 a.m. of 23 rd October 1997. He, for
the first time, went to the police station, at about 8 p.m. of 23 rd
October 1997, and then lodged the report. His report Exhibit 44
shows that the same was registered at about 8.25 p.m. of 23 rd
October 1997. It is hard to digest that a leader of the political
party contesting the election, after witnessing abduction of his
supporters by the rival group in wee hours, would wait for several
hours to lodge report against his rivals. Except naming deceased
accused Vasant Kharmare, this witness has not named any of the
other persons, who allegedly abducted his supporters.
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8 The foregoing discussion, as such, makes it clear that
even after re-appreciation of the entire evidence adduced by the
prosecution, it is not possible to infer that the
respondents/accused persons had committed any of the offences
alleged against them.
In the result, the appeal fails and hence the order :
ORDER
The appeal is dismissed.
(A. M. BADAR, J.)
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