Bombay High Court

The State Of Maharashtra vs Tanaji Mahadev Solse And Ors on 17 August, 2021

Bench: S. V. Kotwal

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO.1250 OF 2007

 The State of Maharashtra                        .... Appellant
             Versus
 1. Tanaji Mahadev Solse,
 2. Ashok Maruti Solse,
 3. Yuvraj Maruti Solse, &
 4. Sakhubai Mahadev Solse.                      .... Respondents
                              -----
 Ms. A.A. Takalkar, APP for the Appellant-State.
 Mr. Omkar Mulekar, Advocate i/b. Niranjan Mundargi, for
 the Respondents.
                              -----

                                     CORAM : SARANG V. KOTWAL, J.

                                     DATE   : 17th AUGUST, 2021

 JUDGMENT :

1. This is an appeal against acquittal filed by the

State of Maharashtra challenging the judgment and order

dated 4.7.2007 passed by Ad-hoc Additional Sessions

Judge-3, Kolhapur in Criminal Appeal No.71/2006 before

him, thereby acquitting all the respondents from the

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Deshmane(PS)

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original conviction recorded by the Judicial Magistrate,

First Class, Kagal under Sections 324 and 323 read with 34

of IPC. The learned Magistrate had convicted the

respondents under Section 323 of IPC and sentenced them

to suffer S.I. for six months and imposed a fine of Rs.200/-

each; in default, to suffer S.I. for 15 days each. The

respondents were also convicted under Section 324 of IPC

and were sentenced to undergo S.I. for nine months and to

pay fine of Rs.200/- each; in default, to suffer S.I. for 15

days each.

2. The learned Magistrate had, however,

acquitted the accused of the charges for commission of

offence punishable under Section 504 of IPC. This order

was passed by the Judicial Magistrate, First Class, Kagal on

28.9.2006 in Regular Criminal Case No.91/2002 before

him.

3. The judgment and order of conviction was

challenged by the original accused-present respondents

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before the Sessions Court which passed the impugned

judgment and order of acquittal in their favour. For the

sake of convenience, the respondents are hereinafter

referred to as the accused.

4. Heard Smt A.A. Takalkar, learned APP for the

State and Shri Omkar Mulekar, learned Counsel for the

Respondents.

5. The prosecution case is that, there was a

dispute between the first informant Suvarna Nirmale's

family and Mahadeo Salse and his brothers' families in

respect of an agricultural land bearing Gat No.549

admeasuring about ten acres at village Kasaba Sangav,

Taluka-Kagal, District-Kolhapur. The incident took place on

3.8.2002 at about 2:00 p.m., in which the accused gave

blows with their weapons on the first informant Suvarna

and her sisters-in-law Vijutai, Anandi and Kalpana. It is

alleged that accused No.1 Tanaji was having an axe in his

hand, accused No.2 & 3 Ashok and Yuvraj were having

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sticks and accused No.4 Sakhubai was having scythe. In

the incident, the first informant and her sisters-in-law

suffered injuries. On that basis, the FIR was lodged. The

investigation was carried out and the charge-sheet was

filed. The accused faced their trial before the learned

Magistrate, as mentioned earlier, resulting in their

conviction under the aforementioned sections and acquittal

under Section 504 of IPC. As mentioned earlier, that

judgment and order was challenged before the Sessions

Court wherein the impugned judgment and order was

passed.

6. In support of its case, the prosecution examined

PW-1 Suvarna Nirmale, who had lodged the FIR. PW-2

Vijutai Nirmale was another injured. PW-3 Anandi Nirmale

was also an injured. PW-4 Tanaji Nirmale had not actually

seen the incident but he came to know about the incident

subsequently. PW-5 Shashikant Aawale was panch for the

spot panchnama. The spot panchnama was exhibited at

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Exhibit-40/C. PW-6 Dr. Mukund Sadigare was the Medical

Officer, attached to Rural Hospital, Kagal, who had

examined the injured Suvarna, Vijutai and Anandi. Their

medical certificates were produced at Exhibits-44, 45 and

46. PW-7 Vilas Zanzge was a panch for the panchnama

under which the weapons were allegedly recovered at the

instance of the accused Tanaji and Ashok. He, however,

had turned hostile and had not supported the prosecution

case. The investigating officer is not examined as he was

reported to be dead.

7. The defence of the accused was of total denial.

It is their case that to get possession of the disputed land

this criminal case was filed against them.

8. PW-1 Suvarna Nirmale had lodged the FIR.

While describing the incident, she has stated that, at the

time of incident the accused started abusing her and her

sisters-in-law tried to stop them but the accused got

annoyed and started beating the first informant and

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others. According to her, accused No.1 Tanaji gave a blow

of an axe on her left wrist. Accused No.2 Ashok gave a

blow with stick on Vijutai's right leg. Accused No.3 Yuvraj

gave a blow of stick on Kalpana's waist. Anandi also

suffered injury on her right hand. She has further stated

that accused No.4 Sakhubai tried to give a blow with scythe

but Vijutai prevented her from giving any blow. She has

produced her FIR at Exhibit-34. She had identified the

weapons produced before the Court.

. In her cross-examination, she had admitted that

there were lands of Nimbalkar, Mali and Jadhav adjacent

to the spot of incident, but, she has stated that nobody else

was present at the spot. She denied the suggestion that

they suffered injuries as they fell down on a slippery land.

Importantly, she admitted that she had stated about

accused No.2 Ashok giving blow to Vijutai on her right leg

by stick; for the first time in the Court. It was not

mentioned in the FIR. She has also admitted that she did

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not tell the police at the time of lodging of FIR that the

accused assaulted Kalpana with stick on her waist. She had

also not told the police about the accused Sakhubai's

attempt to commit assault with scythe.

9. PW-2 Vijutai Nirmale has described the

incident. She has stated that accused No.1 Tanaji gave a

blow from the backside of his axe on the left wrist of PW-1

Suvarna, because of which she sustained bleeding injury.

This witness herself was assaulted by accused No.2 Ashok

with stick on her waist and accused No.3 Yuvraj assaulted

Anandi on her hand. She has not spoken anything about

participation of accused No.4 Sakhubai, except that she

was having a sickle in her hand. She had also admitted

that there were adjacent lands belonging to the persons

mentioned by PW-1 Suvarna.

10. PW-3 Anandi Nirmale has also described the

incident. She has stated that accused No.1 Tanaji assaulted

PW-1 with backside of the axe on her left wrist, back and

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left leg. Accused No.3 Yuvraj assaulted this witness with

stick on her left thumb and shoulder and accused No.2

assaulted Kalpana on her waist by stick. Accused No.3

Yuvraj also assaulted Vijutai by stick.

11. As mentioned earlier, PW-4 Tanaji Nirmale had

not seen the incident and, therefore, his evidence is not

material.

12. The spot panchnama does not reveal anything

more except that the grass was trampled at the spot of the

incident.

13. PW-6 Dr. Mukund Sadigare, the Medical Officer,

had described the injuries suffered by the witnesses. They

are as follows:

(1) Suvarna Nirmale :

                     [i]       Tenderness over both        scapular
                     regions,

[ii] Tenderness over right thigh, and [iii] Abrasion over left wrist dorsally.


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       (2) Vijaya Nirmale :
                      [i]      Tenderness over right shoulder
                      region,
                      [ii] Tenderness over right thigh.


       (3) Anandi Nirmale :
                      [i] Tenderness over left thumb.

[ii] Tenderness over left shoulder.

14. Thus, it can be seen that there is some

inconsistency between the versions of these eye witnesses

and there is definite exaggeration on their part. PW-1

Suvarna has stated that PW-2 Vijutai was assaulted by

accused No.2 Ashok on her right leg, whereas PW-2 Vijutai

herself has not stated so and she has mentioned that

accused No.2 Ashok had given blow with stick on her waist.

15. PW-1 Suvarna has stated that accused No.3

Yuvraj had given a blow on Kalpana's waist. PW-2 Vijutai

has not supported this version and PW-3 Anandi had

attributed that role to accused No.2 Ashok. Kalpana herself

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was not examined.

16. As far as the injury to Suvarna's wrist is

concerned, these witnesses have attributed the injury to

accused No.1 Tanaji and they have stated that accused No.1

had used back side of axe. PW-2 has stated that PW-1

Suvarna had suffered bleeding injury, but the medical

evidence shows that it was a minor abrasion.

17. The learned Sessions Judge while giving

reasons, in paragraph-7 of the judgment has specifically

referred to these contradictions interse between the

witnesses and also has referred to exaggeration in their

evidence. The role and presence of accused No.4 Sakhubai

is also not consistently deposed by all the witnesses. The

learned Judge has considered the possibility that accused

were implicated falsely because of previous dispute.

18. The learned Judge has rightly discarded the

version of PW-4 Tanaji as he had not seen the incident.



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Recovery of weapons is also not supported as the pancha

had turned hostile. There was a common statement of two

accused. The evidence of recovery of weapons was rightly

discarded. The learned Judge has committed only one error

on facts. He has observed that the complainant herself had

not stated about accused No.1 causing injury on her hand.

In fact, she has stated that accused No.1 had caused injury

on her left wrist. However, barring this error, other

reasoning given by learned Judge in acquitting the accused

is sound. The view taken by the Appellate Court is a

possible view. The judgment and order of acquittal

recorded by the learned Judge cannot be said to be