Bombay High Court
The State Of Maharashtra vs Shrishail Basappa Patil & Ors on 20 January, 2018
Bench: A.M. Badar
APPEAL-1071-2002.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1071 OF 2002
THE STATE OF MAHARASHTRA )...APPELLANT
V/s.
1) SHRISHAIL BASAPPA PATIL )
2) SHICHAPPA SATAPPA PATIL )
3) GURUNATH BASAPPA PATIL )
4) SANGAPPA SHIVNANGAPPA PATIL )
5) APPARAYA SATAPPA PATIL )
6) BABURAO BASAPPA PATIL )
7) PRAKASH BASAPPA PATIL )...RESPONDENTS
Mr.S.V.Gavand, APP for the Appellant - State.
None for the Respondents.
CORAM : A. M. BADAR, J.
DATE : 20th JANUARY 2018
JUDGMENT :
1 By this appeal, the State is challenging the judgment
and order passed by the learned 2nd Additional Sessions Judge,
Solapur, in Special Case No.9 of 1999, thereby acquitting
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respondents/accused of offences punishable under Sections 352,
427, 504, 506 read with 34 of the Indian Penal Code and under
Section 143 of the Indian Penal Code, as well as for the offence
punishable under Section 3(1)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2 Facts leading to the prosecution of the respondents/
accused in nutshell are thus :
(a) It is case of the prosecution that PW1 Laxmibai Hippargi is
owner of Gat No.23/2 of Village Alagi, Taluka Akkalkot,
admeasuring about 10 acres. On 14th June 1996, she
entered into transaction in respect of the said land with
Sadakshari Hiremath. It was a transaction of mortgage of
the said land with conditional sale. However, said
Sadakshari Hiremath sold the said land at Gat No.23/2 of
village Alage to accused no.5 Apparaya Patil and accused
no.6 Baburao Patil. Still, possession continuted with PW1
Laxmibai Hippargi. She filed a Special Civil Suit bearing
no.411 of 1996 against the defendants which included
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accused no.5 Apparaya Patil, accused no.6 Baburao Patil and
Sadakshari Hiremath for declaration and perpetual
injunction. On 15th February 1997 when PW1 Laxmibai
Hippargi along with her parents-in-law and PW3 Sarubai
Hippargi etc. were working in the said field Gat No.23/2,
accused persons came there. Accused no.6 Baburao Patil
was holding a fire arm. They abused PW1 Laxmibai
Hippargi as well as her relatives and threatened them to go
out of the field. The accused persons then demolished a hut
belonging to PW1 Laxmibai Hippargi. A complaint (Exhibit
22) of this incident was lodged to the Superintendent of
Police by PW2 Pargonda Hippargi - husband of PW1
Laxmibai Hippargi.
(b) According to the prosecution case, thereafter, again on 19 th
February 1997, at about 11 p.m, all accused persons came to
the "vasti" (residence of PW1 Laxmibai Hippargi and PW2
Pargonda Hippargi) by tractor and trolley. They took away
electric meter, starter and pipeline belonging to the members
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of the prosecuting party. The complaint (Exhibit 23) of this
incident came to be lodged by PW2 Pargonda Hippargi with
the Superintendent of Police.
(c) According to the prosecution case, on 20th March 1997, First
Information Report (FIR) was lodged by PW2 Pargonda
Hippargi and accordingly, the Crime No.14 of 1997 came to
be registered with Police Station Akkalkot South. After
completing investigation, charge-sheet came to be filed
against all accused persons.
(d) In order to prove the charge leveled against the accused
persons, the prosecution has examined in all seven
witnesses. Laxmibai Hippargi is examined as PW1. Her
husband Pargonda Hippargi is examined as PW2. Sister-in-
law of PW2 Pargonda Hippargi namely, Sarubai Hippargi is
examined as PW3. Panch witness Abhimanu Kasbe is
examined as PW4. Spot panchnama is at Exhibit 20.
Investigating Officer Police Sub-Inspector Dilip Londhe is
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examined as PW5. Circle Inspector Satyashree Kshirsagar is
examined as PW6. Awwal Karkoon with the Collector
namely Pradip Deshmukh is examined as PW7. Exhibit 44 is
the Caste Certificate issued by the Tahsildar. The defence of
the accused persons was that of total denial.
(e) After hearing the parties, the learned trial court by the
impugned judgment and order dated 20 th June 2002 passed
in Special Case No.9 of 1999 was pleased to acquit all the
respondents/accused of offences alleged against them.
Feeling aggrieved by this acquittal, the State is in appeal
before this court.
3 Heard Shri S.V.Gavand, the learned APP, appearing for
the State. By taking me through evidence of PW1 Laxmibai
Hippargi, PW2 Pargonda Hippargi and PW3 Sarubai Hippargi,
Shri Gavand, the learned APP, vehemently argued that the
evidence of all these three prosecution witnesses is clear and
cogent. Their version is reflecting that all accused persons, in
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furtherance of their common intention, destructed the hut of the
members of the prosecuting party and used criminal force on
PW1 Laxmibai Hippargi, PW3 Sarubai Hippargi and other
members of the prosecuting party. The learned APP further
argued that the evidence of PW1 Laxmibai Hippargi and PW3
Sarubai Hippargi shows that accused persons committed mischief
by causing wrongful loss to the members of the prosecuting party
by damaging the hut situated in the field Gat No.23/2. The
members of the prosecuting party were intimidated by the
respondents/accused and they were provoked to break the public
peace. The accused persons had formed an unlawful assembly
with common object to commit cognizable offence.
4 None appeared for the respondents/accused.
5 I have carefully considered the submissions advanced
by the learned APP and also perused the record and proceedings
including the deposition of witnesses as well as documentary
evidence adduced by the prosecution.
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6 It is case of the prosecution that field Gat No.23/2 of
Village Alagi owned by PW1 Laxmibai Hippargi was mortgaged
with Sadakshari Hiremath and the said mortgage was by
conditional sale of the said field, which took place on 14 th June
1996. However, said Sadakshari Hiremath had illegally sold the
said field to accused no.5 Apparaya Patil and accused no.6
Baburao Patil, though the possession of the said field continued
with PW1 Laxmibai Hippargi. The prosecution alleged that all
accused persons formed an unlawful assembly and attempted to
disturb possession of PW1 Laxmibai Hippargi and her husband
PW2 Pargonda Hippargi over the field Gat No.23/2 by forcing the
members of the prosecuting party to remove themselves from the
said field, and in that process, the respondents/accused took away
electric meter, starter and pipeline belonging to PW1 Laxmibai
Hippargi and her husband PW2 Pargonda Hippargi. The
prosecution has only examined highly interested witnesses to
prove the incidents alleged by PW1 Laxmibai Hippargi and her
husband PW2 Pargonda Hippargi. Witnesses examined by the
prosecution comprised of PW1 Laxmibai Hippargi, First Informant
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- PW2 Pargonda Hippargi and his sister-in-law PW3 Sarubai
Hippargi. Not a single disinterested witness is examined to prove
the alleged incidents by the prosecution. Therefore, let us at the
outset, examine the documentary evidence coming on record in
order to ascertain the veracity of highly interested prosecution
witnesses.
7 The documentary evidence adduced on record can be
considered better by keeping in mind admissions given by First
Informant PW2 Pargonda Hippargi. In paragraph 9 of his cross-
examination, PW2 Pargonda Hippargi has candidly admitted that
name of Sadakshari Hiremath is recorded in 7/12 extract
pertaining to suit land i.e. Gat No.23/2 of village Alagi. This First
Informant further admitted that he had filed an application before
the Sub-Divisional Officer for claiming possession of the suit land
bearing Gat No.23/2 of Village Alagi by resorting to the provisions
of Section 36 of the Maharashtra Land Revenue Code as well as
Section 3 of the Restoration of Land to the Scheduled Castes and
Scheduled Tribes Act. PW2 Pargonda Hippargi further admitted
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that the said application moved by him for claiming possession of
the land bearing Gat No.23/2 came to be rejected by the Sub-
Divisional Officer. This position emerging on record through the
cross-examination of First Informant PW2 Pargonda Hippargi
unerringly points out that neither he nor his wife i.e. PW2
Pargonda Hippargi were in possession of the land bearing Gat
No.23/2 of Village Alagi. PW2 Pargonda Hippargi further
admitted that on 12th February 2002, Special Civil Suit bearing
No.411 of 1996 filed by his wife PW1 Laxmibai Hippargi for
declaration and perpetual injunction came to be dismissed. On
this backdrop let us examine certified copy of the plaint in Special
Civil Suit No.411 of 1996 which was filed by PW1 Laxmibai
Hippargi. It is annexed to the list Exhibit 56. By this civil suit, it
was claimed that the Sale Deed of the land bearing Gat No.23/2
was executed in favour of the defendant named Sadakshari
Hiremath, by way of security for refund of loan amount. The Sale
Deed was a nominal and sham document. The complainant i.e.
PW1 Laxmibai Hippargi further averred that vide the said Sale
Deed, no title passed to defendant Sadakshari Hiremath and
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therefore, further transaction by defendant Sadakshari Hiremath
in favour of defendants Apparaya Patil and Baburao Patil
(accused nos.5 and 6) is illegal. PW1 Laxmibai Hippargi, who is
plaintiff in the said suit, claimed possession of land bearing Gat
No.23/2 of Village Alagi and prayed injunction against the
defendants which included accused no.5 Apparaya Patil and
accused no.6 Baburao Patil. Alternative relief of re-conveyance
was also claimed. The said suit came to be dismissed on 12th
February 2002 by holding that the transaction was out and out
sale of the land bearing Gat No.23/2 by PW1 Laxmibai Hippargi
to defendant Sadakshari Hiremath. The Sale Deed dated 14 th
June 1996 executed by PW1 Laxmibai Hippargi in favour of
Sadakshari Hiremath was held not to be null and void, but
binding on the plaintiff. It is further held by the civil court while
deciding the said suit that the land is in possession of the
defendant i.e. Sadakshari Hiremath as well as accused nos.5 and
6, namely, Apparaya Patil and Baburao Patil. Needless to mention
that judgment of the competent civil court is binding on the
criminal court. This documentary evidence coming on record,
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thus, shows that on the date of the incident, neither PW1
Laxmibai Hippargi nor PW2 Pargonda Hippargi were in possession
of Gat No.23/2.
8 In the backdrop of this documentary evidence, let us
examine what PW1 Laxmibai Hippargi, PW2 Pargonda Hippargi
and PW3 Sarubai Hippargi are deposing in respect of the incidents
in question. PW1 Laxmibai Hippargi has deposed that on 15 th
February 1997, at about 9.00 a.m., she herself alongwith her
sister-in-law PW3 Sarubai Hippargi and her parents-in-law were
working in the field Gat No.23/2. Her husband PW2 Pargonda
Hippargi was also working there. At that time, all accused persons
came in the field. Accused no.6 Baburao Patil was carrying a gun.
They all abused her and asked her as well as her relatives to get
out of the field. She further deposed that accused persons
demolished her hut which was standing in the field. As per her
version, four days thereafter, again accused persons came at about
11.00 p.m. in the night and took away electric meter, starter and
pipes belonging to her and her husband PW2 Pargonda Hippargi.
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In the similar way, PW2 Pargonda Hippargi deposed about the
incident which took place at about 9.00 a.m. of 15 th February
1997. His evidence in that regard is in unison with version of
PW1 Laxmibai Hippargi. Hence, there is no point in repeating the
same. His version in respect of the incident dated 19 th February
1997 is also congruous to the version of his wife PW1 Laxmibai
Hippargi. This witness deposed about lodging complaints Exhibits
22 and 23 in respect of these incidents to the Superintendent of
Police.
9 It is seen from cross-examination of PW1 Laxmibai
Hippargi that she has added embellishments to her version, so far
as presence on the scene of occurrence is concerned. She had not
stated to police while recording her first version that on 15 th
February 1997, at about 9.00 a.m., she herself along with her
relatives was working in the field. She has no answer as to why
this fact is not appearing in her police statement. She had also
not disclosed the fact that accused no.6 Baburao Patil was carrying
a gun at that time, while giving her statement to the police. Her
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evidence that accused persons abused her and her relatives and
asked them to get out of the said field is also coming on record by
way of omission.
10 In the similar way, perusal of reports Exhibits 22 and
23, so also the FIR at Exhibit 26 lodged by PW2 Pargonda
Hippargi shows that he had not disclosed the fact that he himself
was present on the scene of occurrence with his wife in those
reports. Those reports are conspicuously silent about the fact that
PW2 Pargonda Hippargi and his wife PW1 Laxmibai Hippargi
were present in the field Gat No.23/2 on 15 th February 1997 and
19th February 1997. If these omissions or improvements are
ignored, then these two witnesses do not seem to be eye witnesses
to the incident in question, which, allegedly, took place on 15 th
February 1997 as well as 19 th February 1997. Documentary
evidence as discussed in foregoing paragraphs belies version of
both these witnesses.
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11 PW3 Sarubai Hippargi is near relative of PW1
Laxmibai Hippargi and PW2 Pargonda Hippargi. Her cross-
examination reveals that she is totally dependent on First
Informant PW2 Pargonda Hippargi for her survival and she acts on
his tunes. This witness was not knowing anything about the
transaction regarding alleged mortgage or sale of the field Gat
No.23/2. Perusal of the impugned judgment and order of the
learned trial court vis-a-vis version of PW3 Sarubai Hippargi
shows that the learned trial court has rightly appreciated evidence
of this witness and refused to place explicit reliance on it. She is a
highly interested witness, and therefore, her version, which is
contradictory to the documentary evidence on record, needs to be
ignored.
12 PW7 Pradip Deshmukh is Awwal Karkoon working in
the office of the Collector, Solapur. This witness has duly proved
certificate at Exhibit 44 issued by the Tahsildar, North Solapur.
This documentary evidence as well as version of PW1 Laxmibai
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Hippargi and PW2 Pargonda Hippargi shows that they belong to
Mahadev Koli tribe, which is a Scheduled Tribe under the
Scheduled Castes and Scheduled Tribes (Modification) List 1962,
as well as Scheduled Castes and Scheduled Tribes Amendment
Act, 1976. The offence punishable under Section 3(1)(v) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, was attributed to the respondents/accused with an
averment that they destructed the hut belonging to the members
of the prosecuting party. As per provision of Rule 7 of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Rules,
1995, it is mandatory that the offence under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act shall be
investigated by a Police Officer not below the rank of Deputy
Superintendent of Police. Rule 7 of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Rules, 1995, as well as
provisions of Section 9 of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act are held to be mandatory by
this court in the matter of Ramnath Sadashiv Koltharkar vs.
State of Maharashtra1. However, in the case in hand, it is seen
1 1999(2) Mh.L.J. 743
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that the investigation of the crime in question was not conducted
by an officer of the rank of Deputy Superintendent of Police.
13 Net result of foregoing discussion requires me to hold
that the prosecution has failed to prove the offences alleged
against the accused. The learned trial court, as such, rightly
acquitted them of the alleged offences.
14 In the result, the appeal fails, and the same is
dismissed.
(A. M. BADAR, J.)
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