Bombay High Court
The State Of Maharashtra vs Jayashri Kedari Girigosavi ... on 16 December, 2021
Bench: S.S. Jadhav, P. K. Chavan
apeal 1307.12 with 433.2013 with 847.2017.doc
Digitally
signed by
VARSHA
VARSHA DEEPAK
DEEPAK GAIKWAD
GAIKWAD Date:
2021.12.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
14:39:12
CRIMINAL APPELLATE JURISDICTION
+0530
CRIMINAL APPEAL NO. 1307 OF 2012
WITH
INTERIM APPLICATION NO. 674 OF 2020
1. Sanjay Sadashiv Girigosavi }
age- 31 years, Occupation-Agricultural, }
R/o Bahireshwar, Taluka-Karveer }
}
2. Dadu Babu Girigosavi }
age- 50 years, Occupation-Agricultural, }
R/o Bahireshwar, Taluka-Karveer }
}
3. Yashwant Dadu Girigosavi }
age- 23 years, Occupation-Agricultural, }
R/o Bahireshwar, Taluka-Karveer }
}
4. Digambar Rangrao Girigosavi } Appellants 1 to 4
age- 23 years, Occupation-service, } (orig. accused
R/o Sadoli, Taluka-Karveer } nos.1,5,7,16)
}
5. Mahadev Babu Girigosavi }
age- 45 years, Occupation-Agricultural, }
R/o Bahireshwar, Taluka-Karveer }
}
6. Sadashiv Babu Girigosavi }
age- 67 years, Occupation-Agricultural, }
R/o Bahireshwar, Taluka-Karveer }
}
7. Rangrao Ramchandra Buwa alias }
Girigosavi }
age- 37 years, Occupation-Agricultural, }
R/o Sadoli Khalsa, Taluka-Karveer }
}
8. Kedari Babu Buwa alias Girigosavi } Appellants 5 to 8
age- 47 years, Occupation-Service } (orig. accused 4,6,8
R/o Padali Budruk, Taluka-Karveer } and 10-have abated )
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Versus
1. The State of Maharashtra }
(At the instance of Karveer Police Station, }
Dist-Kolhapur) }
}
2. Smt. Savitri Shivaji Girigosavi }
Age: Major, Occupation-Household }
R/at: Tal: Karveer, Kolhapur } Respondents
WITH
CRIMINAL APPEAL NO. 847 OF 2017
1. Namdeo Mahadeo Girigosavi }
age- 30 years, Occupation-Gosavi }
R/o Bahireshwar, Taluka-Karveer }
}
2. Sambhaji Babu Girigosavi }
age- 45 years, Occupation-Agricultural, } Appellants
R/o Bahireshwar, Taluka-Karveer } (orig. accused nos.2
} and 3)
Versus
1. The State of Maharashtra }
(At the instance of Karveer Police Station, }
Dist-Kolhapur) }
}
2. Smt. Savitri Shivaji Girigosavi }
Age: Major, Occupation-Household }
R/at: Tal: Karveer, Kolhapur }
} Respondents
WITH
CRIMINAL APPEAL NO. 433 OF 2013
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1. The State of Maharashtra Appellant
(At the instance of Karveer Police Station,
Dist-Kolhapur)
Versus
1. Kum. Jayshri Kedari Girigosavi (Buwa) }
Age-19 years, occupation: Education }
r/a - Padali Budruk, Taluka-Karveer }
}
2. Sou. Sampada Bajrang Girigosavi }
Age-32 years, Occu: Household }
R/a- Battis Shirala, Tal-Battis Shirala }
District-Sangli }
}
3. Sou. Nanda Kedari Buwa @ Girigosavi }
Age-40 years, Occu:- agri and household }
R/a- Padali Budruk, Tal-Karveer }
}
4. Sou. Kamal Rangrao Girigosavi }
Age-35 years, occu-household and }
agricultural }
r/a Sadoli Khalsa, Tal-Karveer }
}
5. Sou. Sarita Vijay Girigosavi } Respondents
Age-28 years, Occu: Household } ( acquitted accused
R/a-Padali Budruk, Tal: Karveer. nos. 9, 11, 12, 14, 15)
-------------------
Mr. Kuldeep Patil a/w. Mr. Prashant Patil a/w. Ms. Sayali Dhuru for the
appellants in APEAL/1307/2012.
Mr. Kuldeep S. Patil a/w. Ms. Sayali Dhuru for respondent nos. 1 to 5
in APEAL/433/2013.
Ms. Rebecca Gonsalvez I.by Dr. Yug Mohit Chaudhry for the appellant
in APEAL/847/2017.
Ms. Geeta P. Mulekar - APP for the State.
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---------------------
CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : SEPTEMBER 30, 2021.
PRONOUNCED ON : DECEMBER 16, 2021.
JUDGMENT :- (PER SADHANA S. JADHAV, J.)
1. The appellants herein seek to challenge the judgment and
order dated 19th October 2012 passed by the Additional Sessions
Judge, Kolhapur in Sessions Case No. 21 of 2004. The appellants are
original accused nos. 1 to 8 and 16. The original accused nos. 4, 6, 8
and 10 have died. The appellants are convicted for the offence
punishable under sections 302, 307, 326, 324, 323, 147 and 148 read
with 149 of Indian Penal Code and are sentenced to undergo Rigorous
Imprisonment for life and to pay a fine of Rs. 25,000/-(Rupees Twenty
Five Thousand Only), in default of payment of fine, to undergo Simple
Imprisonment for six months..
2. Such of the facts necessary for the decision of this appeal
are as follows:-
a) That there was a civil dispute between the accused
and the deceased in respect of land situated in Gat Nos. 96
of Padali Burduk. One Shree Krishna Prayag Datta Temple is
situated in Gut No. 96. The administration of the said temple
and the adjacent land is done by the the trust of the temple.
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Ramgiri was the common ancestor of Yashwant Ananda
Girigosavi (the first informant) and the accused Nanda
Kedari Buwa @ Girigosavi (acquitted accused). Ramgiri was
survived by three sons namely Dattatraya, Mahadev and
Ananda.
b) Mahadev had no legal heir therefore he executed a
Will in favour of Babasaheb whereby his share would
devolve upon Babasaheb. Dattatraya had 5 daughters.
Dattatraya adopted his grandson-Nilesh and therefore
Nilesh along with his parents was staying at Village Padali.
The first wife of Dattatraya namely Hirabai was also residing
with 4 brothers. Nilesh was the son of Nanda Kedari
Girigosavi therefore Dattatraya had filed a civil suit seeking
partition which were pending. whereas Ananda had 4 sons
namely Shivaji, Ashok, Yashwant and Sambhaji. The temple
was being managed by 4 sons of Ananda. There was a oral
partition amongst themselves. Dattatraya had filed a suit for
partition. There were 2 sheds in the property each one
managed the shares during their tenure. In May 2003 the
temple was being managed by Ashok by rotation. Babasaheb
expired on 15th May 2003. Mahadev had renounced the
world and executed a Will in favour of Babasaheb who was
the elder son of Ananda Girigosavi. Therefore, the property
was devolved upon Babasaheb, the son of Shivaji i.e.
grandson of Ananda. Accused Nos. 1, 2 and 7 are the sons of
the brother-in-law of Nanda. It is the case of the prosecution
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that on 11th May 2003, in the morning at about 10.00a.m.
Sarita and Supriya were cutting the grass in the agricultural
land. Ashok has restrained them from cutting the grass.
Hence there was a verbal altercation between Sarita and
Supriya on one hand and Ashok on the other hand.
Thereafter, Ashok narrated the incident to his brother
Shivaji who is alleged to have approached the police station
and lodged a report in respect of the said altercation. On the
basis of the said report a non-cognizable case was
registered.
c) On 11th May 2003 at about 12.30 p.m. Shivaji
returned from the police station after lodging a N.C. report
in respect of the quarrel which took place at about 10.00
a.m. At about 3.30 p.m. all the accused reached the land in
a Trax vehicle. Vehicle was parked on the road. All the male
accused were armed with weapons like sticks, axes and iron
rods. There was an altercation between both the groups.
Accused Sanjay had given a blow of weapon stick on the
head of Shivaji. Immediately Shivaji collapsed on the
ground, thereafter, he was assaulted by Namdev. In the said
altercation the complainant was also assaulted. Soon
thereafter, the female members of the family brought the
injured to CPR hospital at Kolhapur. While in transit Shivaji
had succumbed to the injuries. Ashok and Babasaheb were
shifted to Dr. Prabhu's Hospital. The P.I. attached to Karveer
Police Station visited CPR hospital and recorded the
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statement of PW.7-Yashwant Girigosavi. On the basis of
which, Crime No. 107 of 2003 was registered against the
accused for offence punishable under section 302, 307, 326,
324, 323, 147 and 148 of Indian Penal Code.
3. At the trial the prosecution has examined as many as 20
witnesses to bring home the guilt of the accused. According to the
prosecution, this is a case of direct evidence. PW.7- Yashwant, PW-8A-
Anil son of Ashok, PW.-9-Ashok, brother of Shivaji are injured eye-
witnesses in the present case and therefore, implicit reliance is placed
upon the evidence of PW.7, PW-8A and PW.9.
4. PW.7-Yashwant Ananda Girigosavi has deposed before the
Court in respect of the prelude to the incident which relates to a
quarrel at about 10.00 a.m. between the accused members 1 to 7.
Whereas accused no. 8 Rangrao is the husband of Kamal i.e. the son-
in-law of Dattatraya. Whereas accused nos. 9 and 13 are the daughters
of Nanda. While accused no. 10 is the husband of Nanda. At about
3.00p.m. Shivaji and Ashok were in Datta Temple, whereas PW.7 and
his wife were in field. Ashok was residing in the house near the temple
itself. All the accused came to the land armed with weapons.
5. PW.7 has attributed specific overt act to all the accused.
According to him, the first blow was given by the accused no.1- Sanjay
on the head of Shivaji, followed by an assault by Namdev with an axe
on Shivaji's head. When PW.7 attempted to rescue his brother, he was
assaulted by accused no.7-Yashwant with an iron rod followed by Dadu
and Mahadev who assaulted PW.7 with axes. Accused No. 3-Sambhaji
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was beating his brother Ashok in front of the temple with a wooden
stick. When Babasaheb intervening the accused nos. 7 , 10 and 16
assaulted him with their respective weapons.
6. It is alleged that the said accused persons have also
assaulted Anil and Swapnil. They also assaulted Asha, Savitri, Mangal
and Indubai. When the female members raised hue and cry the
accused fled from the spot. The female members have taken the
injured to CPR hospital. Ashok and Babasaheb were shifted to Dr.
Prabhu's Hospital. Babasaheb succumbed to his injuries on 15 th May
2003 in the hospital of Dr. Prabhu. Ashok was unconscious for 15 days.
Anil was patient in CPR hospital for 2 days and thereafter shifted to Sai
Siddhi Hospital in Kolhapur. It is admitted by PW.7 that in the said
altercation accused Sanjay, Sambhaji, Namdev and Jayashri had also
sustained minor injuries.
7. PW.7, who happens to be the injured eye-witness has stated
that all the four assailants had assaulted Anil and Swapnil on their
head. It is further admitted that the disputed lands are owned by the
trust and PW. 7 and others are only the occupants of the said lands.
Ramgiri was the original owner and after his demise Ananda, Mahadev
and Dattatraya were in exclusive possession of the said land. They also
received the offerings made in the temple. Dattatraya had challenged
the Will executed by Mahadev and the said litigation was pending on
the day of the incident. It is also admitted by PW.7, he and his kids
have amicably divided the aforesaid land of the trust amongst
themselves and are in possession of the same.
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8. PW.7 has feigned ignorance about the suit filed by the
Dattatraya and the orders passed therein upto the High Court. He has
also feigned ignorance in respect of the sugarcane crop supplied to
sugar factory in the name of Nilesh, grandson of Dattatraya. It is
admitted that PW.7 and his kids never obstructed the accused from
cultivating their land.
9. The whole incident commenced with the objection raised
by Ashok to Sarita and Supriya from cutting the grass. However, PW.7
has admitted that he has not shown the said piece of land to the police,
where the quarrel took place at 10.00a.m. PW.7 has categorically
stated that 16 persons had approached his land. However, he had
mentioned 15 to 16 people. At the time of incident, PW. 7 was in the
field between the temple and the main road. He has denied the
contention marked 'A' which shows that Shivaji was being beating in
the temple just before he attacked but at the same time it is stated that
Shivaji was inside the Datta Temple but Shivaji was attacked near the
shed and in front of Datta Temple. Ashok was assaulted in front of
Datta Temple and that Ashok and Shivaji were assaulted
simultaneously. But it was Sanjay who had assaulted Shivaji on his
head and Namdev inflicted a blow axe on his head.
10. There are several omissions in the evidence of PW. 7 in
respect of overt act attributed towards the accused, the place of
incident and the weapon held by the accused persons. All the
omissions are proved by the investigating officer. PW.7 has stated that
they have not assaulted the accused- Sanjay, Namdev, Sambhaji and
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Jayshri but it is equally true that they had sustained injury on the
person in the said incident. According to PW. 7 after hearing hue and
cry the accused had abandoned their weapons on the spot and fled.
11. The next eye-witness is PW.8A - Anil Ashok Girigosavi he is
nephew and cousin of deceased person i.e. he was the cousin of
Babasaheb and nephew of deceased Shivaji. He was discharged on 21 st
May 2003.
12. PW.-8A happens to be son of Ashok. According to him, at
the time of incident his father was incharge of the said temple and
therefore they were living in the shed near the temple itself. As far as
the topography of the incident and genealogy of the incident are
concerned, he has admitted the incident of quarrel between his father
Ashok on one side and Savitri and Supriya on the other side in the
morning at 10.30 a.m. and thereafter Shivaji had lodged the report.
That at the time of incident Ashok and Shivaji were sitting in the
temple while Yashwant, Savitri and Sambhaji were working in the
agricultural land whereas his cousins Balasaheb and Swapnil were
playing near the temple. At about 3.00 p.m. all the accused had
allegedly come in tempo trax. They were armed with weapons and that
they inflicted blows on Shivaji, Ashok, Anil and Yashwant, PW. 8A and
also female members of the family. Shivaji succumbed to the injuries
whereas Ashok and Babasaheb were critical and therefore they were
shifted to Dr. Prabhu's Hospital. On 15th May 2003, Babasaheb
succumbed to the injuries while undergoing treatment. PW.8A was
admitted in CPR hospital for 2 days and then shifted to Sai Siddhi
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Hospital, Kolhapur and was treated for 5 days as he had sustained
fracture. It is admitted that his father and his three uncles had taken
ownership of the land by oral partition and they took charge and
managed the temple for one year in rotation.
13. Witness was confronted with photographs which are at
Exhibit-175 to 179 and the list of photographs is marked at Exhibit-
174. Upon being confronted with the photographs, the witness has
admitted the topography as depicted in the photographs. The witness
feigned ignorance whether Kedari was in possession of the temple land
at the time of incident as he has never seen accused Kedari taking
away yield of that land. It is admitted that Shivaji had lodged a report
in the police station in respect of the incident at 10.30 a.m. on 11 th
May 2003. He claimed to have no knowledge as to whether Kedari was
detained in the police station upto 4.00 p.m. on that day. There are
omissions in the evidence of the witness. According to him, at the time
of incident Babasaheb was 22 years whereas Swapnil was 10 years old
and they were playing cricket at the time of incident.
14. It is specifically admitted that after alighting from the Trax.
All the accused started proceeding towards Datta temple but they
could not reach upto the temple. He has denied that his father Ashok
and Shivaji were assaulted near Datta Temple itself. But infact they
were assaulted in two different directions. The said averments are
therefore marked as portion marked 'B'. He has also admitted that the
cross case in respect of assault by the prosecution witnesses on the
accused is pending wherein there is an allegation that the prosecution
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witnesses had assaulted accused persons. He has withdrawn his earlier
contention that accused Yashwant had assaulted Shivaji with iron rod
vide Dadu and Mahadev assaulted him with sticks. It is also admitted
that he and his uncle Yashwant were admitted in the same ward.
15. The next injured eye witness is Ashok Ananda Girigosavi
(PW.9) on 27th August 2004 charge was framed against the accused
persons. Thereafter, the statement of Ashok was recorded on 12 th May
2005 by PW. 12. In fact, the said statement of Ashok was recorded
pursuant to the order dated 1st February 2005. According to PW. 9,
Ashok had objected Sarita and Supriya from cutting the grass in the
agricultural land but they forcibly cut the grass and also threatened
him of dire consequences.
16. According to PW.9 Sarita and Supriya had threatened him
of dire consequences and therefore he had informed the said incident
to his brother Shivaji who lodged a report at the police station.
Yashwant had also reached the spot. He has attributed the overt act to
Sanjay and Namdev who had assaulted Shivaji and also corroborated
the allegation that the accused Yashwant assaulted PW.7- Yashwant. As
far as Babasaheb is concerned, according to PW.9, he was assaulted by
Kedari followed with an assault by Yashwant and Digambar and
Sambhaji had assaulted PW.9. According to PW.9 his statement was
recorded after 1 and ½ years because he was mentally upset after the
incident.
17. According to him, the members of the family used to
forcibly take away grass from the land and therefore their relations
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were strained. It is admitted in the cross-examination that after
returning from the police station Shivaji had not disclosed that Kedari
was also in the police station to lodge report. That all the assailants
had assaulted simultaneously. There are inherent omissions in the
evidence of PW.9, which are proved by the investigating officer. PW. 2
to 8 are hostile witnesses.
18. PW.8-Prakash Havaldar is the driver of the trax. He is
declared hostile.
19. The next set of witness is medical officer (PW.10), Atulya
Jaywantrao Patil had treated Anil Girigosavi. PW. 8A have hand injury
and issued medical certificate, which is at Exhibit-201.
20. PW.11. Dr. Beena Kiran Ruikar was medical officer at CPR
hospital, Kolhapur and she had examined the deceased injured and
accused and has proved the injury certificate and the medical case
record. According to PW.11 on 11th May 2003 at about 4.30p.m. she
had examined the injured Shivaji Ananda Girigosavi, Ashok,
Babasaheb, Yashwant, Sambhaji, Anil, Swapnil, Savitri, Indubai and
Asharani and their injury certificates are exhibited collectively at "222
to 241".
21. PW. 11 has examined the accused-Sambhaji and she
noticed the following injuries:-
i) tooth fall left upper inside and swelling back side of
neck.
The dental opinion was that no fracture of mandible. The
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medical certificate is at 'Exhibit-243'.
The accused no. 1 Sanjay was admitted in the hospital on 11 th May
2003 at 10.00 p.m. On examination it was noticed that he had
sustained following injury:
i) crush and lacerated wound 5x3x2 cms on parietal region
and abrasion 6x1 cm. below parietal region. The medical
certificate is at Exhibit-247.
22. The accused Namdev Gosavi was admitted in the hospital
on 11th May 2003 at 5.00p.m.. He had sustained the following injuries:
i) Abrasion with contusion 5x1 cm and 2x1 cms. Skull
frontal aspect.
ii)Abrasion 2x1 cm below above injury.
iii) Crush and lacerated wound 7x5x2 cm on backside of the
right side of the chest.
iv) Tenderness with contusion 1x1 cm right radius head and
right elbow joint.
The injury certificate is at Exhibit-249.
23. The accused-Jayashri also admitted in the hospital on 11 th
May 2003 at 5.00p.m. She had sustained the following injury:
i) Abrasion on back side of chest 5x4 cm.
The medical certificate is at Exhibit-251.
24. According to PW. 11 the nature of injuries sustained by the
accused persons are simple in nature and possible in the course of
scuffle and / or falling on the ground. As far as the injuries on the
person of Ashok are concerned, PW.11 has specifically stated as
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follows:-
"When I have written CLW that does not mean contused
lacerated would, in fact, it is crushed and lacerated wound.
By "crush" injury means irregular border injury. According
to me in "crush" injury destruction of tissue whereas in
laceration, only skin is peel out and no destruction of
tissues".
25. The witness was confronted with Modi's Medical
Jurisprudence. More particularly, page 418 to 419. She has disagreed
with the proposition that the tooth is fallen due to injury the same
cannot necessarily be termed as fracture injury. She has further denied
the observation of Dr. Modi's, while disagreeing that it amounts to
grievous injury. PW.11 was confronted with "Exhibit-123 collectively".
The 4th injury in the medical case paper was nasal injury. However, she
has clarified that she had not found any external injuries on the nose
of Ashok Girigosavi. She has admitted that Ashok Girigosavi was
examined by Neurosurgeon on 12th May 2003 at about 10.15a.m. The
Neurosurgeon upon seeing CT scan report had not found any fracture
injury of skull of Ashok Girigosavi. That injury No. 1 to 13 found on
the person of Ashok Girigosavi are wounds. She has feigned ignorance
as to whether crush injuries or lacerated wounds are mentioned or
discussed in Modi's Medical Jurisprudence. The injury sustained by
Ashok Ananda Girigosavi on the right lateral aspect of head, over
lateral aspect of right forearm and over frontal aspect of head and all
these injuries are possible due to a single fall. It is also admitted by
PW.11 that injury no.4 was mentioned in the column of treatment as
the patient was in a serious condition. Shivaji has sustained all the 4
injuries on the backside of his head. As far as Babasaheb Girigosavi is
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concerned, PW.11 has categorically admitted as follows:-
"I have wrongly stated in my examination in chief about
injury no.1 of said Babasaheb Girigosavi about posterior
aspect of skull. It should be laceration of nose only". That
all the injuries were on the face and they can be caused by a
single fall on earth.
All the injuries found on the person of Yashwant Girigosavi were
simple injuries. He was in a conscious state of mind when he was
brought to the hospital.
26. It is further admitted in the cross-examination that injury
no.2 on the person of Anil Girigosavi was on left forearm and not on
left forehead and it was wrongly stated in the examination-in-chief that
Anil Girigosavi had sustained simple injuries. Sambhaji Girigosavi had
sustained three injuries on his person. All the said injuries can be
possible by fall on earth and the fourth injury was on right black eye.
Savitri, Indubai and Asharani had sustained simple injuries which may
be caused by rubbing on any hard and scrub object.
27. PW.12. Dr. Kumar Nanavare has performed autopsy on the
deceased Babasaheb and had identified the signature and hand writing
of Dr. A.S. Ruikar who had performed autopsy on Shivaji Girigosavi.
PW.12 was attached to Civil Hospital, Kolhapur. At about 11.15p.m. the
dead body of Shivaji Girigosavi to the hospital with the history of
assault. PW. 12 had conducted autopsy on the dead body of Shivaji
Girigosavi from 11.30p.m. to 12.30a.m. The injuries noticed on the
dead body of Shivaji Girigosavi were as follows:-
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i) stitched wound over occipital, oblique, 6 cms in length.
ii)stitched wound over occipital region, oblique, 5cms in
length, below external injury no.1.
iii)contusion with swelling over left cheek with abrasion on
it.
iv) Stitched wound over base of nose with abrasion of 2 x 2
cms.
There were no external injuries. Internal injuries are as follows:
1) contusion under scalp on occipito parietal region, present
corresponding to external injuries no.1 and 2.
2) Fractured skull present over occiput, extended into base
of skull, corresponding to external injury no.1.
3) extensive bilateral sub arachnoid haemorrhage present.
28. PW.12 after verifying the signature and hand writing of A.S.
Ruikar, PW.12 had proved the contents of the post-mortem that
Babasaheb was 22 years at the time of autopsy.
29. It would be trite to consider the evidence of PW.19 - Dr.
Prabhu. Dr. Prabhu happens to be a neurosurgeon. Babasaheb and
Ashok were admitted in his hospital on 12th May 2003 with history of
assault on the previous day. Babasaheb had brain haemarrhage during
his stay in the hospital whereas Ashok was discharged on 25 th June
2003. It is also admitted in the cross-examination that no operation
was performed on Ashok. He proved the contents of Exhibit-370. "C.T
scan shows 1) fractured of right parietal bone and Bilateral high
posterior parietal haemorrhagic contusion with diffuse cerebral
oedema. Patient was diagnosed with Lt. P.O EDH with Pul Tuberculosis.
He was complaining of joint aches, had high fever. Dr. Madhavi Kamat
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had introduced anti tubercular therapy". The suggestion that patient
died due to medical negligence is denied.
30. PW.13 - Ishwar Sutar is the investigating officer who had
taken over the investigation on 12 th May 2003. Accused nos. 1, 2 and 3
were arrested on 14th May 2003. The accused were medically
examined on 15th May 2003. According to PW.13 there is recovery of
axe at the instance of Namdev on 17 th May 2003 and Jeep was seized
on the same day. The charge sheet was filed on 6th August 2003.
31. It is elicited in the cross-examination of the I.O that on 13th
May 2003 only Babasaheb was admitted in the hospital of Dr. Prabhu.
He had visited the hospital of Dr. Prabhu personally and noticed that
the injured Babasaheb was unconscious. It is admitted that at the time
of arresting the accused person, no written intimation was given to the
near relatives. PW. 13 has feigned ignorance in respect of suspension of
ASI, Vibhute for detaining accused no. 10 Kedari and accused Sarita in
police station till 4.00p.m. on the day of incident.
32. PW.14- Jaywant Deshmukh had recorded the First
Information Report. He had done initial investigation i.e. spot
panchnama, inquest panchnama of deceased Shivaji, recorded the
statement of some witnesses including PW.8A - Anil Girigosavi and
arrested some accused persons. The spot panchnama was prepared on
the next day i.e. on 12th May 2003, when he visited the spot of incident
he had seized the articles lying on the spot and also collected the
samples of blood mixed soil. The medical officer Dr. Mitra had
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informed him that the patient Ashok and Babasaheb are not in a
position to give statement. He had taken leave on personal ground and
therefore further investigation was transferred to PW.20-Anandrao
Khobare who had recorded the statement of Ashok Girigosavi on 12th
May 2005 at the police station. He has admitted in the cross-
examination that he had not inquired with the witnesses as to whether
his statement was recorded on previous occasion.
33. The learned APP submits that the accused in the present
case have assaulted several members of the family and two namely
Shivaji and Babasaheb have succumbed to death due to the said
injuries therefore the accused do not deserve any sympathy and hence
the conviction in sentence deserves to be upheld.
34. Ms. Gonsalvez, appearing for original accused nos. 2 and 3
has vehemently submitted that in fact the accused along with family
members had gone to offer their prayers in Datta Temple. However due
to the verbal altercation between Sarita, Supriya and Ashok the family
of the complainant attacked the accused, there was a grave
apprehension and there was a free fight and therefore it cannot be said
that the accused persons had gone to the land with an intention to
assault the injured. That there is suppression of the genesis of the
incident and it is apparent that the prosecution witnesses are not
telling the whole truth.
35. It is submitted that there are inherent inconsistencies in the
evidence of the witnesses. Moreover the statement of Ashok was
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recorded in 2005 i.e. after framing of charge. The same could not have
been included in the charge sheet. That the evidence of PW.7 would
show that the cross case is pending. The complainant has only stated
that some of the accused had sustained some injuries. However, the
complainant has not offered any plausible explanation for the injuries
sustained by the accused persons. The accused were also taken to the
hospital on the same day. There was long standing litigation pending
between the parties. In fact, the prosecution witnesses were in
unlawful occupation of the said land. It is also categorically stated by
all the accused witnesses that soon after the incident when the women
raised hue and cry the accused persons threw the weapons on the spot
and fled from the scene of offence and therefore the recovery under
section 27 of Indian Evidence Act is nothing but a farce and cannot be
considered to be incriminating circumstances.
36. Upon perusal of the evidence adduced by the prosecution
the following facts would emerge.
1. There are civil suits pending between the parties.
2. The Datta Temple was built by Ramgiri Gosavi who was
common ancestor of Yashwant Girigosavi and the accused
Nanda.
3. Ramgiri was survived by three sons namely Dattatraya,
Mahadev and Ananda. Dattatraya, Mahadev and Ananda
had mutually drawn oral partition amongst themselves and
yet Dattatraya had filed a civil suit seeking partition. In fact,
the oral accused nos. 1,2 and 7 were sons of the brother-in-
law of Nanda and had no concern with the pending
litigation between the brothers interse but the family of the
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complainant and the accused regularly offered prayers to
shri Krishna Prayag Datta Temple.
37. In the morning at 10.00 a.m. it was a trifling quarrel
between Ashok, Sarita and Supriya. In fact, there was no reason for
Ashok to object Supriya from cutting the grass as she happened to be
the sister of Nilesh and daughter of Nanda. Nilesh was adopted by
Dattatraya and hence he alongwith his parents and sisters Sarita and
Supriya were residing in the shed adjacent to the temple.
38. It is not the case of the prosecution that Nanda, Nilesh
anyone of them had called upon their family members. In fact, Kedari
the husband of Nanda had taken recourse to law and had reported the
said incident to the police, a non-cognizable case was registered. It is
in the evidence of PW. 13-Ishwar Sutar that the Havaldar was
suspended for detaining Kedari in the police station on 11th May 2003.
39. There is no denial to the fact that the quarrel had ensued in
Gat No. 96 on arrival of the accused. However, it cannot be presumed
that they had intended to assault the family members of the
complainant. Incident has occurred near the temple and not inside the
shed. It was a case of free fight.
38. In the case of "Gajanand and Ors. vs State of Uttar Pradesh
Ceveator"1 in the said judgment, the Hon'ble the Apex Court has
referred to the judgment in the case of "Ahmad Sher vs Emperor"2', in
which it was observed as under :-
1 AIR 1954 SC page 695
2 AIR 1931 Lah page 513 (A)
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" When both sides mean to fight from the start, go out to
fight and there is a pitched battle. The question of who
attacks and who defends in such a fight is wholly immaterial
and depends on the tactics adopted by the rival
commanders".
40. There is no evidence on record to show that the accused
had arrived at the scene of offence with deadly weapons like axes,
sticks and weapons alleged to have been used in the said incident. The
weapons alleged to have been used in the incident are sticks, and the
medical evidence corroborates the same. As far as medical evidence is
concerned, Ashok was suffering from Tuberculosis and the court
cannot be oblivious of the fact that Babasaheb had died due to brain
haemorrhage. The medical records do not indicate that the brain
haemorrhage was caused because of assault on Babasaheb. As far as
Shivaji is concerned, according to PW.11. Shivaji had sustained head
injury which was due to fall. PW. 11 had stated that the injuries were
crush and lacerated wounds. The witness has disagreed with Modi's
Medical Jurisprudence. The weapon of assault was not shown to PW.11
to ascertain as to whether the said weapon could have cause crushed
and lacerated wound. In fact accused no.1 Sanjay has also sustained
crush and lacerated wound 5x3x2 cms on parietal region. It is not the
case of the prosecution witnesses that they had acted in self-defence
and therefore Sanjay and others had sustained injuries. There is no
explanation for the injury sustained by the accused.
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41. In the case of "Lakshmi Singh and Ors. vs. State of Bihar"3
in which the Apex Court has held as follows:-
" In the instant case, either the accused were fully justified
in causing the death of the deceased and were protected by
the right of private defence or that if the prosecution does
not explain the injuries on the person of the accused the
entire prosecution case is doubtful and the genesis of the
occurrence is shrouded in deep mystery, which is sufficient
to demolish the entire prosecution case. It seems to us that
in a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the
occurrence or in the course of altercation is a very
important circumstance from which the Court can draw the
following inferences
(1) That the prosecution has sup- pressed the genesis and
the origin of the occurrence and has thus not presented the
true version:
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains
the injuries on the person of the accused it is rendered
probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the
injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or
inimical witnesses or where the defence gives a version
which competes in probability with that of the prosedition
one....".
3 AIR (1976 ) SC 2263
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42. It appears from the facts on record that the possibility of
free fight cannot be ruled out, then no right of private defence is
available to either party and they both would be guilty for their
respective acts. In fact Sessions Case No. 144 of 2005 was pending
against the prosecution witnesses. In the statement under section 313
of Cr.P.C. the accused no. 1 has specifically pleaded that on 11 th May
2003 at 10.00 a.m. Ashok had picked up the quarrel with Sarita and
Supriya. In answer to question no. 15 the accused no. 1 has stated that
'we all are looking after management'.
43. The omissions and contradictions in the substantive
evidence of the witnesses goes to the root of the matter, especially, the
portion marked at 'A and B" in the statement of PW.8A-Anil Girigosavi.
44. The submission of the learned APP that there are 3 injured
eye witnesses, is controverted by the learned counsel Mr. Kuldip Patil
appearing for the accused-appellant nos. 9, 11, 12, 14 and 15 submits
that it is the quality and not the quantity of the evidence which needs
to be appreciated and taken into consideration.
45. The evidence on record is not sufficient to hold that the
accused had voluntarily assaulted the family members of the
complainant on 11th May 2003. The prosecution has failed to establish
that it was a case of criminal trespass. The accused are also
descendants of Ramgiri and stakeholders in the said property.
46. It is also submitted by the respective counsel that the
appellants herein are in custody since 19th October 2012. That original
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accused no.4 Mahadev Girigosavi, accused no.6-Sadashiv and accused
No. 8-Rangrao Ramchandra Buwa @ Girigosavi and accused no. 10-
Kedari Babu Buwa have expired. Hence, appeal stands abated against
them.
47. Original accused no. 13 was juvenile in conflict with law.
Original accused nos. 9, 11, 12, 14 and 15 are acquitted. The surviving
accused are accused no. 1-Sanjay Girigosavi who was also injured in
the said incident, Namdev Girigosavi -Accused no.3, Dadu Girigosavi-
accused nos. 5, Yashwant Girigosavi- accused no.7 and Digambar
Girigosavi- accused no. 16. The assault on Shivaji is attributed to
Sanjay and Namdev. The assault on the complainant PW.7 Yashwant is
attributed to accused No. 7-Yashwant. Assault on Babasaheb is
attributed to Sambhaji.
48. In the present case, it is a matter of fact that the
prosecution witnesses and the accused were at loggerheads. According
to the prosecution the unlawful assembly comprise of 16 members or
more. The equal number of prosecution witnesses were present on the
spot and there were 6 people who were also injured. In such a
situation it would be difficult to lodge a specific overt act to any or all
members of the unlawful assembly.
49. It would be trite to place implicit reliance upon the land
mark judgment in the case of Masalti vs State of U.P4 ,the Hon'ble
Supreme Court has held as follows:-
4 AIR (1965 ) SC 202
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"Where a crowd of assailants who are members of an
unlawful assembly proceeds to commit an offence of murder
in pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to describe
accurately the part played by each one of the assailants.
Besides, if a large crowd of persons armed with weapons
assaults the intended victims, it may not be necessary that
all of them have to take part in the actual assault.
Appreciation of evidence in such a complex case is no doubt
a difficult task: but criminal courts have to do their best in
dealing with such cases and it is their duty to sift the
evidence carefully and decide which part of it is true and
which is not".
50. It is pertinent to note that in fact Accused nos. 1 to 3 were
also injured in the said incident. Sambhaji had a tooth fall and has
sustained injury on the backside of his neck. Accused no. 1-Sanjay had
sustained injury on parietal region which was a grievous injury.
Namdev had also sustained crush and lacerated wound on the backside
of the right side chest. The accused Jayashri has sustained abrasion on
the backside of her chest. None of the deceased or the injured
witnesses had sustained any injury by an Axe or an iron rod. Although
according to PW.7, Namdev was armed with an axe whereas Yashwant
was armed with an iron rod. The allegations against Dadu and
Mahadev are that they were assaulted by PW.7.
51. The accused persons have been in custody for almost 9
years.
52. In view of the above discussion, the appeals are deserve to
be allowed.
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CRIMINAL APPEAL NO. 433 OF 2013
53. The State seeks to challenge the judgment and order dated
19/10/2012 passed by the Additional Sessions Judge, Kolhapur in
Sessions Case No. 21 of 2004, thereby challenging the acquittal of the
accused - original accused nos. 9, 11,12,14,15.
54. It appears from the record that the women have were
acquitted. According to the learned APP the respondent herein were
members of the unlawful assembly which had assaulted PW.-7
Yashwant Girigosavi and PW.-8A-Anil Girigosavi and PW.9-Ashok
Girigosavi on 11th May 2005 in Gat no. 96 at village Padali. It is alleged
that respondent no.5 is root cause of the trouble. That according to the
learned APP there was an altercation between respondent no.5-Sarita
and PW.9-Ashok on 11th May 2005 at about 10.00 a.m. That the
husband of respondent no.3 - original accused no. 10 (deceased) had
lodged a report at the police station against Ashok. That the accused
nos. 3,4,6,10 and 13 are the close relatives of respondent no. 3. That
the acquittal of the accused has resulted in miscarriage of justice.
55. It needs to be appreciated that the respondent no.1 was
injured in the said incident. There is no specific overt act against
respondent nos. 2 to 5.
56. It is submitted by the learned counsel for the respondent
that the prosecution witnesses were aggrieved by the fact that son of
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the respondent no.3 was taken in adoption by Dattatraya father of
Nanda and therefore she assumed rights to reside in the said land.
None of the respondents have assaulted the deceased nor there is any
allegation that they were armed with weapons. There was no question
of respondent no.3 and respondent no.5 going in tempo trax along
with other accused since they were residing in a shed adjacent to the
temple.
57. In view of the above discussion, in the companion appeals
i.e. Criminal Appeal No. 1307 of 2012 and Criminal Appeal No.847 of
2017 and in view of the fact that the co-accused are acquitted, the
appeal filed by the State necessarily needs to fail. There is no reason to
interfere with the judgment passed by the learned Session Judge,
Kolhapur and hence appeal stands dismissed.
ORDER
i) The Criminal Appeal No. 1307 and criminal
Appeal no. 847 of 2017 are allowed and Criminal Appeal
No. 433 of 2013 is dismissed.
ii) The conviction and sentence imposed vide
Judgment and order dated 19th October 2012 passed by
the Additional Sessions Judge, Kolhapur in Sessions Case
No. 21 of 2004 is hereby quashed and set aside.
iii) The appellants are acquitted of all the charges
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levelled against him.
iv) The appellants be released forthwith, if not
required in any other case.
v) Fine be refunded, if already paid.
vi) The bail bonds of the respondents in Criminal
Appeal No. 433 of 2012 stand cancelled.
vii) The appeals along with connected IA are
accordingly disposed of.
(PRITHVIRAJ K. CHAVAN, J) (SMT. SADHANA S. JADHAV, J)
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