Bombay High Court
Shivaji Kedarji Ghorpade And Ors vs The State Of Maharashtra on 16 December, 2021
Bench: S.S. Jadhav, P. K. Chavan
492-1998-Apeal-J.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 492 OF 1998
1. Shivaji Kedarji Ghorpade ]
Age 34 years, Occ. Service ]
2. Suryaji Kedarji Ghorpade ]
Age 28 years, Occ. Agriculturist ]
3. Madhukar Shankar Chougule ]
Age 29 years, Occ. Tailoring ]
4. Bajarang Shankar Chougule ]
Age 23 years, Occ. Agriculturist ]
5. Balu Babasaheb Ghorpade ]
Age 21 years, Occ. Agriculturist ]
6. Maruti Namdeo Patil ]
Age 27 years, Occ. Agriculturist ]
All residents of village Madhyal, ]
Tal. Kagal, Dist. Kolhapur ]
(At present, lodged in Kalamba ]
Central Prison, Kalamba, Kolhapur) ] .. Appellants
(Orgi. Accused Nos. 2 to 7)
V/s.
The State of Maharashtra ] .. Respondent
.....
Mr. Shekhar A. Ingawale for the appellants
Mr. Arfan Sait, APP for the respondent State
.....
Digitally
signed by
UDAY UDAY SHIVAJI
JAGTAP
SHIVAJI Date:
JAGTAP 2021.12.16
14:38:55
+0530
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CORAM : SMT. SADHANA S. JADHAV &
PRITHVIRAJ K. CHAVAN, J.J.
RESERVED ON : 23rd NOVEMBER, 2021
PRONOUNCED ON : 16th DECEMBER, 2021
JUDGMENT :- (Per Prithviraj K. Chavan, J.)
1. By this appeal, the original accused nos. 2 to 7 - appellants
herein, have impugned the judgment and order of conviction
rendered by the Additional Sessions Judge, Kolhapur in
Sessions Case No. 47 and 48 of 1997 dated 3rd April, 1998.
2. The appellants have been convicted of the offences
punishable under Sections 148, 302 r/w 148 and 149 of the
Indian Penal Code for having committed two murders and
were sentenced to suffer life imprisonment on two counts
along with fine of Rs.5,000/- each. Rest of the nine accused
have been acquitted.
3. The prosecution story, in brief, can be stated as follows :-
4. Bhairu Dattatraya Morbale and Maruti Dattatraya Morbale
were two brothers. They belonged to Vikramsing Ghatge
group. The accused belonged to Sadashivrao Mandlik group.
Both the accused and deceased were residents of village
Madhyal, Taluka - Kagal, Dist. Kolhapur. Admittedly,
between these two groups there was a political rivalry and a
long standing enmity.
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5. The incident in question occurred on 27.05.1996 at 8.30
p.m. Originally, there were 15 accused. According to the
prosecution, sister of A-2 Shivaji Ghorpade viz. Nirmala was
suspected of having illicit relations with deceased Maruti
Morbale. She had committed suicide five years before the
incident. The accused, therefore, had a grudge against
deceased Maruti for the reason that because of his such illicit
relations with Nirmala, she was driven to commit suicide.
6. The second reason, according to the prosecution, is that
deceased Maruti contested Grampanchayat election against
A-3 - Suryaji Ghorpade. A-2 - Shivaji Ghorpade and A-3 -
Suryaji Ghorpade are real brothers. In the said
Grampanchayat election, A-3 - Suryaji Ghorpade was
defeated. He had, therefore, sought candidature of a
political group headed by Sadashivrao Mandlik. Since the
same was refused, he contested the election from the group
of Amarsing Ghorpade. The latter was the member of the
political group headed by Vikramsing Ghatge.
7. The third reason, according to the prosecution, is that
deceased Maruti was the Chairman of Hanuman Milk Co-
operative Society. He managed to pass a resolution in his
favour, whereby he was entitled to vote in the election of
Kolhapur District Central Co-op. Bank, Kolhapur. The
accused no.1 - Maruti Chothe had brought a motion of no
confidence against deceased Maruti. The same was passed
and as such, deceased Maruti was removed from the
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Chairmanship of the said milk society.
8. The fourth reason, according to the prosecution, is that since
the deceased - Bhairu Morbale and Maruti Morbale were the
members of the group headed by Vikramsing Ghatge, the
accused had a political rivalry with both deceased brothers.
9. The fifth reason, according to the prosecution, for
committing the murder of two brothers is that A-1 - Maruti
Chothe had borrowed an amount of Rs.80,000/- from the
deceased Bhairu for purchasing an Ambassador Car. Despite
repeated demands by deceased Bhairu, A-1 Maruti failed to
repay the amount, due to which there was a rivalry between
A-1 Maruti and deceased Bhairu.
10. The sixth reason, according to the prosecution, is that the
complainant - Pandurang Keshav Chougule had got his
agricultural land measured through a Government Surveyor
and during the said measurement, it was noticed that A-1
Maruti Chothe had encroached upon the land of the
complainant to the extent of 3 Are. In order to get the
encroachment removed, PW-1 Pandurang Chougule sought
help of deceased Bhairu and, accordingly, deceased Bhairu
had helped in taking possession of the encroached area of
land. Later on, A-1 Maruti Chothe had removed the crop
from 3 Are area of the land of complainant Pandurang
Chougule. It is alleged that at that time, deceased Bhairu
warned A-1 Maruti Chothe that he would face the
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consequences.
11. The last reason, according to the prosecution, is that there
was a quarrel between Annappa Gaikwad and Kerba
Gaikwad. There was a scuffle between them, which was in
respect of possession of an agricultural land. In that case, A-
2 Suryaji Ghorpade and A-11 Dhanaji Dadu Patil were the
accused. They suspected that deceased Maruti Morbale and
Bhairu Morbale were supporting the prosecution case and
had helped the complainant - Pandurang Chougule in
securing the conviction.
12. Thus, the prosecution is based on the aforesaid seven
reasons i.e. the motive behind commission of the offence by
the accused. It is alleged that the accused belonged to a
group known as "Anna Group" as A-2 Shivaji Ghorpade,
being head of that group, was also known to be "Anna" in
village Madhyal.
13. On 27.05.1996, there was a marriage at the house of one
Mahadev Namdev Kesarkar. Several villagers had gathered
for attending the marriage ceremony. Deceased Maruti was
also amongst them. The feast was over and almost all the
villagers were disbursing from the venue of marriage. At
that time, deceased Bhairu was in search of a tractor for
carrying manure to his field. He had, therefore, contacted
one Maruti Ghatge, who assured deceased Bhairu that he
would arrange for a tractor after two days. Deceased Bhairu,
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PW-6 Rangrao Dhanukhe and PW-7 Yashwant Kesarkar were
sitting near the door of office of the Society. It was about
7.30 p.m. At that time, A-4 - Madhukar Chougule was
passing in front of deceased Bhairu, PW-6 Rangrao
Dhanukhe and PW-7 Yashwant Kesarkar. PW-7 Yashwant
Kesarkar suspected that A-4 Madhukar Chougule would
pickup a quarrel with him. Deceased Bhairu, therefore,
asked PW-6 Rangrao Dhanukhe to call deceased Maruti at
that place. Accordingly, PW-6 Rangrao Dhanukhe left the
spot to go to the house of deceased - Maruti. PW-6 Rangrao
Dhanukhe informed deceased Maruti that there is a
possibility of a quarrel near the society's office and,
therefore, deceased Maruti rushed to the spot. While leaving
the house, he told his daughter that he would return after
some time and by that time, they should take their meals.
14. Here, on the spot, A-4 - Madhukar Chougule grabbed collar
of Yashwant Kesarkar. A-2 - Shivaji Ghorpade caught hold of
deceased Maruti while A-3 - Suryaji Ghorpade and other
accused caught hold deceased Bhairu Morbale. A-4
- Madhukar Chougule asked A-5 - Bajarang Chougule,
A-6 - Balu Ghorpade and A-7 - Maruti Patil to bring sticks
asnd swords from the house of A-2 Shivaji Ghorpade.
Accordingly, accused nos. 5, 6 and 7 left that place to bring
weapons from the house of A-2 - Shivaji Ghorpade. In the
meantime, A-4 - Madhukar Chougule started pushing PW-7 -
Yashwant Kesarkar towards office of the Panchayat Samiti.
Deceased Bhairu and Maruti were dragged by A-2 Shivaji
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Ghorpade and A-3 - Suryaji Ghorpade in the opposite
direction of PW-7 - Yashwant Kesarkar. PW-7 - Yashwant
Kesarkar, however, managed to escape from the spot by
giving jerk to A-4 Madhukar Chougule. PW-7 Yashwant
Kesarkar fell down near the door of the house of one Pundlik
Sonar. When he looked behind, nobody was found at the
spot.
15. At about 9.30 p.m. complainant - Pandurang Chougule had
returned from Kagal Sugar Mills. When he was proceeding
towards his house from the bus stand, he noticed that people
were running helter skelter on the road. On an inquiry, he
came to know that Bhairu Morbale and Maruti Morbale have
been murdered and that their dead bodies were lying near
the office of the society. PW-1 - Pandurang Chougule,
therefore, decided to go to the spot. On his way, he met
Police Patil of the village Madhyal. Both of them went to the
spot and noticed the dead bodies of deceased Bhairu and
Maruti lying over there. They identified the dead bodies of
deceased Bhairu and Maruti. There were several injuries on
the person of both the deceased brothers, which were
bleeding.
16. PW-1 - Pandurang Chougule immediately went to the house
of Amarsing Ghorpade from where he contacted the police
on telephone.
17. After effecting an entry into the station diary, PSI -
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Mr. Mane proceeded to village Madhyal along with police
staff. He noticed two dead bodies lying near Wadekar Tikti.
The complainant - Pandurang Chougule was present over
there, who again orally reported the matter to PSI - Mane,
which was reduced into writing. The Investigating Officer
drew an inquest panchanama of the dead bodies in the
presence of panch witnesses. On the following day i.e. on
28.05.1996, at about 7.00 a.m., PSI - Mane drew a scene of
offence panchanama. On 05.06.1996 he arrested accused
nos. 3 to 11.
18. During their police custody, the accused made voluntary
statements to discover certain articles in the form of blood
stained clothes and weapons. Certain incriminating articles
came to be discovered at their instance. The dead bodies of
deceased Bhairu and Maruti were sent for autopsy. There
were as many as thirteen external injuries on the person of
deceased Bhairu, which according to the prosecution, were
due to sharp weapon. According to PW-12 Kiran Malu,
Medical Officer, the cause of death of deceased Bhairu was
due to cardiorespiratory arrest due to fracture of skull and
intracranial haemorrhage.
19. Similarly, there were eight external injuries on the dead body
of deceased Maruti. The skull bones were found fractured
and the probable cause of death is also due to
cardiorespiratory arrest as a result of shock due to laceration
of brain and intracranial haemorrhage.
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20. The Investigating Officer had forwarded the seized articles to
the Forensic Science Laboratory, Pune. The blood samples of
the accused were also forwarded to the Chemical Analyzer.
After recording the statements and after completion of the
investigation, a charge-sheet was filed in the Court of
Judicial Magistrate, First Class, Kagal against all the accused,
which ultimately came to be committed to the Sessions Court
as the offences were triable by the Sessions Judge.
21. The learned Sessions Judge framed a charge under Sections
147, 148, 302 read with 149 of the Indian Penal Code and
under Sections 37(1)(a to f) read with 134 of the Bombay
Police Act. The charge was read over and explained to the
accused in vernacular to which they pleaded not guilty and
claimed a trial.
22. The defence of the accused, as emerged from the line of
cross-examination as well as from their statements under
Section 313 of the Code of Criminal Procedure is that they
have been falsely implicated in the case and the Investigating
Officer had deliberately changed the time and place of
incident. According to the defence, the incident must have
been occurred during mid-night. There was no sufficient
light at the time of drawing of panchanama and even at the
time of alleged incident. According to the defence, a false
panchanama was drawn, so as to say, the dead bodies were
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shown lying near a public lamp post. It is further contended
on behalf of the defence that there were several enemies of
the deceased in the village and the deceased too were facing
a charge of murder of one Mr. Narvekar, to whom deceased
Bhairu had shot dead. The case was then pending in the
Court of J.M.F.C., Ichalkaranji.
23. In support of its case, the prosecution has examined as many
as 18 witnesses. The learned Additional Sessions Judge after
considering the over all evidence on record and after hearing
the prosecution and the defence, by the impugned judgment
and order convicted accused nos. 2 to 7 as under :-
"1. The accused nos. 2 - Shivaji Kedarji
Ghorpade, No.3 - Suryaji Kedarji Ghorpade, No. 4
- Madhukar Shankar Chougule, No.5 - Bajarang
Shankar Chougule, No. 6 - Balu Babasab
Ghorpade, No.7 - Maruti Namdev Patil, all r/o
Madhyal. Tal. Kagal, Dist. Kolhapur, are hereby
convicted of the offence punishable u/s 148 of the
Indian Penal Code and are sentenced to suffer R.I.
for two (2) years each, and to pay a fine of
Rs.3000/- each, I.D. to suffer R.I. for one year.
2. They are further convicted of the offence
punishable u/s 302 r/w Sec. 148 and 149 of the
Indian Penal Code for commission of murder of
Bhairu Dattatraya Morbale and are sentenced to
suffer life imprisonment and to pay a fine of
Rs.5000/- each I.D. to suffer R.I. for two years.
3. They are also convicted of the offence
punishable u/s 302 r/w Sec. 148 and 149 of I.P.C.
for commission of murder of Maruti Dattatraya
Morbale and are sentenced to suffer life
imprisonment and to pay a fine of Rs.5000/- each,
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I.D. to suffer R.I. for two years.
4. The substantive sentences shall run
concurrently.
5. All these accused nos. 2 to 7 are however
acquitted of the offence punishable u/s 37(1) r/w
135 of the Bombay Police Act.
6. The accused no. 1, 8 to 15 are also acquitted
of all the offences for which they are charged.
They are set at liberty and their bail bonds stands
cancelled.
7. Although the accused nos. 2 to 7 are in jail
custody still they are not for set of in view of the
punishment of life imprisonment awarded to
them.
8. Muddemal articles be destroyed, except the
article no.18, 27 and 28."
24. As such, accused no.1, 8 to 15 have been acquitted of the
offence with which they were charged.
25. We heard Mr. Ingawale, the learned Counsel for the
appellants and Mr. Sait, APP for the respondent.
26. Indubitably, deceased Bhairu and Maruti died homicidal
deaths.
27. The evidence of the medical expert PW-12 - Dr. Kiran Malu,
who had conducted autopsy on the dead bodies of both the
deceased, observed the following external injuries on the
person of deceased Bhairu, which were ante mortem :-
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"1. Incised wound over rt. parietal region.
Size 3" x ½" x bone deep.
2. Incised wound over lt. occipital parietal area
size 2" x 1" x bone deep.
3. Incised wound over rt. temporomaxilary region
L.Type size 2½" x 1½" x ½"
1½" x ½" x ½"
4. Incised wound over rt.ear pina horizontally ½"
length and cartilage deep
5. Cut injury over left hand starting from the base
of little finger cutting carpal bones underneath
from dorsal as well as palmer aspect injuries
extending obliquely towards wrist joint.
6. palternel abrasion over left deiterid region
2" x ½"
7. patlerned contusion over scapular and
interscapular region horizontally.
Size 6½" x ½". No fracture, redness plus.
8. patterned contusion over back interscapular
region vertically. Size 8" x 1", redness + No
fracture
9. patterned contusion over back, horizontally
below scapular region. 8" x 1", redness +
10. Multiple contusions over back, 4 in no. over
scapular region
11. patterned contusion vertically over post fold of
axilla. Size 5" x 1" redness + Rt. Side.
12. patterned contusion, multiple 3 inch no over
left lumbar region of back. Size 5" x 6" with 1"
width each Redness +
13. patterned contusion, obliquely over post fold
of axilla. Size 4½" x 1". Redness +. - Rt. Side"
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28. PW-12 Dr. Kiran Malu observed the following external
injuries on the person of deceased - Maruti, which were
ante-mortem :-
"1. curved incised wound directing upwards
over it. tempor parietal region.
size 3" x ½" x bone deep. Fracture
underneath, bone present. Brain is coming out.
2. Multiple depressed fracture of skull extending
over frontal, temporal, parietal, occiptial bones.
3. Depressed fracture of maxillary and temporal
bone. Rt. Side of face involving ear.
4. Incised wound lt. upper eyelid.
½" x ¼" x muscle dep. No injury to eye.
5. Incised wound over rt.elbow medially exposing
epicondyl of humerus. Bleeding plus.
6. Incised wound over base of lt.thumb medially.
Exposing carpal bones.
7. Dislocation of rt.shoulder joint.
8. Abrasion over medial maleolus of rt. Leg.
Bleeding +."
29. Certain important aspects revealed during cross-examination
of PW-2 Dr. Kiran Malu, which would definitely have a
bearing on the case of the prosecution as regards time of
death of deceased Bhairu and Maruti. The prosecution case
rests on the premise that both were done to death brutally by
a mob comprising of the present accused, by use of deadly
weapons, meaning thereby both deaths had occurred
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simultaneously. However, if the cross-examination of PW-12
Dr. Kiran Malu is seen, he candidly admits that death of
Bhairu and Maruti could have been taken place at different
times on the basis of the rigor mortis as well as nature of the
injuries sustained by them. PW-12 Dr. Kiran Malu admits
that injuries sustained by Bhairu were of such nature that his
instantaneous death was quite probable.
30. However, the injuries on the person of deceased Maruti,
more particularly, injury nos. 5, 6, 7 and 8 were not on the
vital part of the body. As per the Modi's "Medical
Jurisprudence and Toxicology", rigor mortis generally occurs
whilst the body is cooling. It is not in any way connected
with the nervous system and the time of onset of rigor mortis
varies greatly in different cases. However, average period of
its onset may be recorded as 3 to 6 hours after the death in a
temperate climate and it may take 2 to 3 hours to develop.
PW-12 Dr. Kiran Malu has rightly admitted in his cross that
rigor mortis commences within 2 to 3 hours of death and
may extend upto 12 hours. As per Modi's Jurisprudence,
duration of rigor mortis could extend upto 24 to 48 hours in
winter and 18 to 36 hours in summer.
31. The incident in question occurred in the month of May
during summer and, therefore, the duration must have been
for a period of 18 to 36 hours. However, in view of the said
admission about the difference in time of death, a doubt
arises whether the incident in question had occurred around
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8.30 p.m. or around mid-night ?
32. As already stated hereinabove, the prosecution has based its
case on seven grounds, which according to it, was the motive
to committee the crime.
33. The first reason given by the prosecution is that sister of A-2
Shivaji Ghorpade and A-3 Suryaji Ghorpade viz. Nirmala had
an illicit relations with deceased Maruti. There was a public
talk in respect of the affair of Nirmala and deceased Maruti.
Nirmala committed suicide and died in the hospital.
34. In order to substantiate this fact, the prosecution has relied
upon the evidence of complainant - Pandurang Chougule
and PW-6 Rangrao Dhanukhe. PW-6 Rangrao Dhanukhe
turned hostile and, therefore, his evidence is not at all useful
for the prosecution in substantiating any fact. Except PW-7
Yashwant Kesarkar and PW-8 Bharat Morbale, no witness has
testified about the said aspect as none of the witnesses had
any direct knowledge in respect of the alleged illicit relations
between Nirmala and deceased Maruti. Even PW-7 Yashwant
Kesarkar and PW-8 Bharat had no direct knowledge.
35. In such situation, normally there are gossips and rumors,
that too, in a village and there can hardly be any substantive
evidence in that regard. The prosecution has not tendered
any medical evidence qua the suicidal death of Nirmala, as it
is the case of the prosecution that she died in the hospital.
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It appears that even the dying declaration of Nirmala was
recorded after her admission in the hospital. However, no
such evidence has been brought on record. It, therefore,
follows that in the absence of any satisfactory evidence on
record, it would be difficult to accept that A-2 - Shivaji
Ghorpade was suspecting that his sister had committed
suicide due to the alleged illicit relations with deceased
Maruti. As such, it is difficult to infer that it could have been
one of the motives for eliminating the brothers.
36. Secondly, according to the prosecution, deceased Maruti had
contested the election against A-3 Suryaji Ghorpade. This is
an undisputed fact. Deceased Maruti had sought candidature
from the political group belonged to Sadashivrao Mandlik
and when it was refused to him, he had contested the
election against A-3 Suryaji Ghorpade, who was defeated.
The question is whether defeat of A-3 Suryaji Ghorpade in
the election against deceased Maruti could be a political
rivalry between them to such an extent that they would kill
not only the deceased Maruti but his brother Bhairu, is
something which does not appeal to once mind. Contesting
an election and win and defeat of either of the parties is a
common phenomenon of any political party. That in itself
cannot be said to be sufficient to accept that the motive to
commit the murders was the defeat in the election.
37. The third reason put forth by the prosecution is that
deceased Maruti was a Chairman of Hanuman Co-operative
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Milk Society and A-1 Shivaji Ghorpade had brought no
confidence motion against deceased Maruti due to which he
was dismissed from the Chairmanship. This again is a kind
of political rivalry as it has been brought on record that
deceased Maruti had got a Resolution passed whereby he
was even empowered to vote in the election of Kolhapur
District Central Co-operative Bank. The trial Court has,
though reasoned that because of such rivalry, the relations
between the two groups were strained, which perhaps might
have been resulted into an incident in question, cannot be
accepted as the conclusive proof in a criminal trial where it is
incumbent upon the prosecution to prove the charges beyond
all reasonable doubts. The evidence is quite short and shaky
in that regard.
38. The fifth reason, according to the prosecution, was that A-1
Maruti Chothe had borrowed some amount from deceased
Bhairu for purchasing an Ambassador Car as has been
testified by PW-9 - Manisha Morbale - daughter of deceased
Maruti. Deceased Bhairu was insisting upon A-1 Maruti
Chothe to repay the said amount. However, A-1 Maruti
Chouthe used to ignore the same. There used to be a quarrel
between deceased Bhairu and A-1 - Maruti Chothe on that
count. However, except the bare words of PW-9 Manisha
Morbale, there is no acceptable and satisfactory evidence to
prove this fact. Even, rest of the witnesses had no personal
knowledge in respect of the payment of such amount by
deceased Bhairu to A-1 - Maruti Chothe and the alleged
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demand made by deceased Bhairu. This cannot be the
sufficient reason to have a motive to eliminate the deceased.
Rather, deceased Bhairu would have some motive to kill A-1
Maruti Chothe as he was not returning the amount of
deceased Bhairu.
39. The sixth ground raised by the prosecution is about the
quarrel between PW-1 Pandurang Chougule and A-1 - Maruti
Chothe on account of encroachment in the field of PW-1
Pandurang Chougule. PW-1 Pandurang Chougule had got his
land measured through a Government Surveyor. It is
noticed that A-1 Maruti Chothe had encroached to the extent
of 3 Are of land of PW-1 Pandurang Chougule. It is not
disputed that for taking possession of the encroached portion
of land, deceased Bhairu had helped PW-1 Pandurang
Chougule and had also threatened A-1 Maruti Chothe when
he had taken away the standing crop from the field of PW-1
Pandurang Chougule.
40. The seventh and last reason put forth by the prosecution is
that there was a quarrel between Annappa Gaikwad and
Kerba Gaikwad. The dispute was in respect of the
agricultural land between those two persons. A case was
registered against A-2 Shivaji Ghorpade and A-11 Dhanaji
Patil, in which both of them were convicted and sentenced to
suffer imprisonment for 3 years. It is the contention of the
prosecution that A-2 Shivaji Ghorpade and A-11 Dhanaji Patil
were under the impression that deceased Bhairu and
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deceased Maruti had helped PW-1 Pandurang Chougule in
that case in securing the conviction and, therefore, had a
grudge against deceased Maruti and Bhairu.
41. This is nothing but a figment of imagination, for, there is no
satisfactory material or evidence on record in that respect.
Conviction and sentence in a criminal case is awarded on the
basis of evidence of the prosecution witnesses, who are cross-
examined by the defence. It is ridiculous to presume that
deceased had helped the complainant PW-1 Pandurang
Chougule and, therefore, A-2 Shivaji Ghorpade and A-11
Dhanaji Patil had been convicted. This is something which
no sane man would believe and accept.
42. Even in the cross-examination, PW-1 Pandurang Chougule
admitted that he had no personal knowledge as to how A-2
Shivaji Ghorpade and A-11 Dhanaji Patil were of the view
that deceased Bhairu and Maruti had helped in securing their
conviction.
43. Thus, none of the seven reasons enumerated above are
sufficient in the given case to construe that the real motive
behind the commission of offence was as stated hereinabove.
None of the seven grounds have been shown to be
convincing and satisfactory to attribute motive. It is
significant to note that the deceased themselves had several
enemies in the village.
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44. PW-6 Rangrao Dhanukhe has turned hostile and, therefore,
his evidence would be of no use to the prosecution. As a
matter of fact, he was the witness who had narrated the
entire incident to the police and subsequently to the Special
Judicial Magistrate, Kolhapur. He contradicted his own
versions in both of his statements during his cross-
examination. Perhaps, he might have been won over by the
accused persons.
45. So far as the evidence of PW-1 Pandurang Chougule is
concerned, he admits that even after the death of Nirmala,
deceased Bhairu and Maruti were on visiting terms with A-2
Shivaji Ghorpade. That being so, how it can be a motive for
the accused to eliminate deceased Bhairu and Maruti on that
ground?
46. PW-7 Yashwant Kesarkar was the eye-witness of the incident.
According to this witness, on 27.05.1996 there was a
marriage at the house of one Mahadev Namdev Kesarkar.
Deceased Maruti had attended the marriage and thereafter
was proceeding towards the office of the society. At that
time, deceased Maruti asked A-4 - Madhukar Chougule as to
why he was looking at him, upon which, he replied that he
may do as he likes.
47. PW-7 Yashwant, PW-6 Rangrao Dhanukhe and deceased
Bhairu were in search of a tractor of Maruti Ghatge at the
relevant time. Maruti Ghatge assured that he will send his
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tractor after two days. At that time, this witness along with
deceased Bhairu and PW-6 Rangrao Dhanukhe were sitting
near the door of the office of society. It was about 7.00 p.m.
to 7.30 p.m. While passing in front of them, this witness
suspected that A-4 Madhukar Chougule would pick up a
quarrel and, accordingly, he appraised deceased Bhairu.
Deceased Bhairu, therefore, asked PW-6 Rangrao Dhanukhe
to immediately call deceased Maruti over there. PW-6
Rangrao Dhanukhe left the place to call deceased Maruti. By
that time, A-4 Madhukar Chougule caught hold the collar of
this witness. A-2 Shivaji Ghorpade caught hold deceased
Maruti while A-3 Suryaji Ghorpade and other accused
persons caught hold deceased Bhairu.
48. Thereafter, A-4 Madhukar Chougule asked A-5 Bajarang
Chougule, A-6 Balu Ghorpade and A-7 Maruti Patil to bring
sticks and swords from the house of A-2 Shivaji Ghorpade.
Accordingly, they left the spot to bring the weapons from the
house of A-2 Shivaji Ghorpade. In the meantime, A-4
Madhukar Chougule started pushing this witness towards the
office of Panchayat Samiti. Deceased Bhairu and Maruti
were dragged by A-2 Shivaji Ghorpade and A-3 Suryaji
Ghorpade in the opposite direction of PW-7 Yashwant
Kesarkar. This witness managed to escape from the spot by
giving jerk to A-4 Madhukar Chougule. He fell down near
the door of the house of one Pundlik Sonar. When he looked
back, he noticed that nobody was there. He, therefore,
proceeded to the house of one Vasant Davare, postman, who
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is his relative. He asked Vasant Davare to go to the spot of
incident and to see what had happened. Vasant Davare went
to the spot and returned by saying that dead bodies of
deceased Maruti and Bhairu were lying over there.
49. Thereafter, this witness went to the house of his sister, who
resides in the village known as 'Kamat'. On the next day
morning, this witness went to the field known as 'Rawanachi
Bari'. He was in the field in the day and for the entire night.
He appeared only before the police on the following day and
gave his statement.
50. It is apparent from the evidence that he had no occasion to
witness the actual assault upon the deceased by any of the
accused, that too, by means of any deadly weapons. What
he noticed is simply dragging of the deceased by A-2 Shivaji
Ghorpade, A-3 Suryaji Ghorpade and other accused in
opposite direction. The moment he fell down near the door
of the house of one Pundlik Sonar and looked back, he did
not notice anything, even deceased Bhairu and Maruti.
What he heard from the postman Vasant Davare that dead
bodies of the deceased were lying on the spot, is the only
evidence of this witness which does not inspire confidence as
there is nothing in his evidence to indicate as to who was
the author of the injuries or even for that matter, which
accused held which weapon? This is significant in view of
number of injuries found on the person of deceased Bhairu
and Maruti. He even did not notice dead bodies of
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Bhairu and Maruti.
51. When he was cross-examined, several factors have been
surfaced rendering his testimony unworthy of credit. He
admits that A-1 Maruti Chothe and deceased Bhairu were
erstwhile friends and were helping each other financially.
This witness was not aware about any financial dealings
amongst themselves. He feign innocence as regards the
habit of deceased Bhairu and Maruti to pick up quarrels in
the village. However, he admits and it is a matter of record
that deceased Bhairu and Maruti were arrested in respect of
a murder case.
52. It has come in his cross-examination that there were about
400 people gathered for attending the marriage and that he
was busy for the whole day in celebration of marriage. This
witness is from the village Kesarkarwadi, which is at a
distance of 2 k.m. from village Madhyal. He further admits
that at the relevant time, when he heard commotion from
Wadekar Tikti, he asked Vasant Davare to go to the place of
commotion and to see what was going on. Vasant Davare
returned there and informed him within 5 minutes that dead
bodies of Bhairu and Maruti were lying near Wadekar Tikti.
This witness totally changed his version in cross than what
has been stated by him in examination-in-chief. He is an
interested witness, for the reason which we find in his
further admission, where he had stated that he belongs to
Vikramsing Ghatge group, of which the deceased belonged.
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53. Admittedly, as already stated, there were two rival groups in
the village - one is headed by Amarsing Ghorpade and
another by A-2 Shivaji Ghorpade. The witness admits that
about 7 years ago, he was prosecuted in a criminal case for
allegedly beating one Nivruttin Kamble. He was also
prosecuted for beating one Krishna Dhondi Dhanukhe and
also prosecuted for pelting stones on the houses of others
during the election period.
54. Thus, it is difficult to believe this witness, who himself had a
criminal record. His cross-examination indicates that when
quarrel was going on, he asked A-4 Madhukar Chougule as
to why he had caught hold of his collar. At that time,
deceased Maruti intervened. The distance from the spot of
quarrel and the marriage pandal was 10 to 15 meters. Some
persons who had gathered for the marriage rushed to the
spot and intervened. Some of them pushed A-4 Madhukar
Chougule aside while others pushed deceased Bhairu and
Maruti.
55. The over all conduct of this witness renders his evidence
untrustworthy, for, even after noticing the the incident he did
not immediately approached the police to lodge a report.
Rather, he himself escaped and concealed himself in the field
for a day and full night. He even admits that he did not
speak to anyone else about the incident on Thursday and
Wednesday till he was interrogated by the police. As such,
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the evidence of this witness cannot be considered to be a
truthful version of the incident.
56. PW-8 Bharat Morbale is the cousin of the deceased and also
belonged to the group of Vikramsing Ghatge. His evidence is
also of no use to the prosecution as he testified that at the
time of incident, he was at the distance of 200 feet and did
not see as to who was pushing whom. He testified that the
accused were also pushing Bhairu, who were the members of
Anna Group and were armed with the weapons like sticks
and swords. According to this witness, he could witness the
incident because there was a tube-light of Grampanchayat. In
cross, he denied to have been tutored by the police to
depose against the accused.
57. However, his evidence smacks suspicion because on the day
of incident, perhaps he was not in his senses in view of his
admission that there is a Diety in the house of Datta Hodge,
known as 'pirache devastan'. On that particular day, people
used to walk over the fire and that this witness was
possessed by the pir. He testified that around 10.00 p.m.
the fire was kept ablaze. It is difficult to believe his evidence
in view of the aforesaid fact, which perhaps could have been
the case of some psychological disorder.
58. His further admission also makes his evidence unbelievable
when he admits that he was at such a distance from the spot
that he could not identify the assailants and even could not
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see any weapons in their hands, who were in front of the
door of the society. What he could hear is only the
quarreling noises. He even did not notice the persons having
a scuffle. Rather, he admits that he got frightened after
noticing the quarrel and then noticed Bhairu and Maruti had
fallen down. He too, had contacted the police after 5 to 6
days from the incident. He preferred to keep mum from the
day of incident, till his statement was recorded by the police.
59. PW-9 Manisha Morbale is the daughter of deceased Maruti.
She was not the eye-witness. However, she admits in cross
that her father and deceased Bhairu were prosecuted for an
offence of commission of murder and the case was pending
in the Court at Ichalkaranji. She did not know whether her
father and uncle i.e. deceased Maruti and Bhairu had beaten
the tenants in the house at Ichalkaranji and a criminal case
to that effect was pending against them. She did not know
whether an amount of Rs.80,000/- was paid by deceased
Bhairu to A-1 Maruti Chothe. Rather, she testified that all
the accused were on visiting terms to their house. She admits
that neither deceased Bhairu nor her father deceased Maruti
had taken meals on the day of incident. However, semi-
digested food was found in the stomach of both the
deceased, which creates doubts as to the exact time of their
deaths.
60. On the aspect of discovery under Section 27 of the Indian
Evidence Act, the evidence of PW-10 Bandu Morbale would
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be relevant. He is a close relative of deceased Maruti and
Bhairu. He had also acted as a witness of the inquest
panchanama. Interestingly, all the memorandum statements
under Section 27 of the Indian Evidence Act came to be
recorded one after another in respect of same place from
where the accused alleged to have concealed the clothes and
weapons and were jointly discovered. This is something
quite strange as to how all the accused at a given point of
time would give voluntary statements and would discover
everything from one place simultaneously. Evidence in that
regard needs to be discarded at the threshold. The question
of finding blood stained clothes and weapons and
consequent chemical analyzer's reports are inconsequential
in view of the fact that the alleged discovery itself is in total
contravention of the spirit of Section 27 of the Evidence Act.
In cross-examination, this witness admits that within 3 days,
11 panchanamas were drawn by the police and on 11
occasions, he put his signatures on 11 panchanamas.
61. Even at the time of drawing the discovery panchanama, he
admits that police had summoned him to make signatures
over the panchanamas at the police station. All the
signatures were made in a hut of one Mr. Gurav. Within 15
minutes, all the signatures were obtained in the hut of said
Mr. Gurav. He was not in a position to narrate in sequence
as to which panchanamas were signed by him and which
were drawn. He was unable to testify which of the clothes
were produced by which of the accused as well as the sticks
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and swords. Nothing more is required to be stated about
the alleged discoveries.
62. There is neither any reference of street light in the spot
panchanama (Exh.47) nor there is any mention in the
panchanama as to who had shown the spot of incident. PW-
2 Suresh Patil as well as PW-3 Bacharam Dhunshe both have
turned hostile, who were the witnesses to the spot
panchanama. It is a matter of record that there was a huge
delay in recording the statements of the witnesses by the
Investigating Officer.
(a) Statement of PW-6 - Rangrao Dhanukhe was recorded
after 5 days i.e. on 31.05.1996.
(b) Statement of PW-7 - Yashwant Kesarkar was recorded
after 2 days i.e. on 28.05.1996; and
(c) Statement of PW-8 - Bharat Morbale was recorded
after 15 days i.e. on 11.06.1996.
63. All the witnesses are either related or closely associated with
the deceased. Their conduct, as discussed hereinabove, is
unnatural. Interestingly, none of the eye-witnesses are the
residents of the same village and, therefore, their presence
on the spot of incident itself appears to be unnatural and
doubtful. There is no evidence on record to show that they
were invited for the marriage. PW-6 Rangrao Dhanukhe is a
resident of village Dhunnkshewadi, which is about 2 to 2½
k.m. from village Madhyal. Similarly, PW-7 Yeshwant
Kesarkar is a resident of Kesarkarwadi, which is at a distance
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of 2 k.m. from village Madhyal and PW-8 - Bharat Morbale
was residing in the field, which is about ½ to ¾ k.m. from
the spot of incident. Delay in recording their statements
itself, therefore, creates a doubt as regards their presence at
the time of incident.
64. PW-1 Pandurang Chougule was not an eye-witness.
However, his over all conduct and in view of the admitted
fact of his enmity with A-2 Shivaji Ghorpade and A-3 -
Suryaji Ghorpade, there is every reason for him to implicate
the accused falsely. The prosecution has failed to bring on
record imminent reason for the accused to commit murder of
the deceased Maruti and Bhairu in such a brutal manner.
65. Looking to the criminal background of the deceased, the
possibility of someone else's involvement cannot be totally
ruled out. The prosecution has not clarified as to how there
was change of time in the occurrence of the alleged incident?
According to the prosecution, the incident occurred around
8.30 p.m. while according to PW-1 Pandurang Chougule,
while returning at about 9.30 p.m. from Kagal Sugar Mills,
he noticed people running helter-skelter on the road and
informed him about the murder of deceased Bhairu and
Maruti. The police was informed on telephone at 9.45 p.m.
They arrived at the scene around 11.00 p.m. However,
station diary entries indicate that the police were informed
around 00.30 hours and the police reached around 1.00 a.m.
FIR came to be registered at 3.05 a.m. The possibility of
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change of time of occurrence of incident appears to have
been deliberately changed to suit the prosecution story. This
also goes to the root of the prosecution case and affects its
credibility.
66. If there was a marriage ceremony in the village and around
400 persons were assembled, why not a single independent
eye-witness has been examined by the prosecution? It is
incredible as to how none from 400 persons had informed
the police immediately after noticing the scuffle? This is
significant in view of the evidence of PW-12 Dr. Kiran Malu,
who admits that perhaps death of both the deceased might
have occurred at different times.
67. The learned Additional Sessions Judge misdirected himself
in placing reliance upon the testimony of PW-7 Yashwant
Kesarkar as a star witness by accepting his evidence despite
several other discrepancies surfaced during the course of
cross-examination of other prosecution witnesses. The
learned Additional Sessions Judge failed to appreciate the
over all evidence of the prosecution in its correct perspective
by ignoring not only the long standing enmity between two
groups but also the material inconsistencies and lacunae in
the prosecution case. The over all evidence adduced by the
prosecution is neither acceptable nor believable.
68. Having considered the entire circumstances, evidence and
facts on record, we are of the considered view that the
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impugned judgment of conviction warrants interference in
appeal as the prosecution has failed to establish it's case
beyond all reasonable doubts.
69. Now, to the order :-
ORDER
(i) The impugned judgment, conviction and sentence
passed by the learned Additional Sessions Judge in Sessions
Case No. 47 and 48 of 1997 on 3rd April, 1998 is quashed
and set aside.
(ii) Accused no.2 - Shivaji Kedarji Ghorpade, A-3 - Suryaji
Kedarji Ghorpade, A-4 - Madhukar Shankar Chougule, A-5 -
Bajarang Shankar Chougule, A-6 - Balu Babasab Ghorpade
and A-7 - Maruti Namdev Patil are acquitted of the offences
with which they were charged.
(iii) Their bail bond stands cancelled.
(iv) Fine amount, if paid, be refunded.
(v) They be released forthwith, if not required in any other
case.
(PRITVIRAJ K. CHAVAN, J.) (SMT. SADHANA S. JADHAV, J.)
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