Bombay High Court
Bhavdya @ Nanya @ Yogesh Devidas ... vs The State Of Maharashtra on 9 February, 2021
Bench: S.S. Jadhav, N. R. Borkar
J-Apeal-346-347.doc
rkmore
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.347 OF 2012
Kalya @ Vijay Devidas Ingole ]
(At present undergoing sentence at Nashik Jail) ]
of Nashik, Indian Inhabitant and residing at ]
Munjoba Chowk, Ganesh Wadi, Panchavati, ] .. Appellant
Nashik. ] (Org.Accused No.3)
vs.
The State of Maharashtra ]
(At the instance of Panchavati Police Station, ]
Nashik) ].. Respondent
ALONGWITH
CRIMINAL APPEAL NO.346 OF 2012
Bhavdya @ Nanya @ Yogesh Devidas Ingole ]
(At present undergoing sentence at Nashik Jail) ]
of Nashik, Indian Inhabitant and residing at ]
Munjoba Chowk, Ganesh Wadi, Panchavati, ] .. Appellant
Nashik. ] (Org.Accused No.4)
vs.
The State of Maharashtra ]
(At the instance of Panchavati Police Station, ]
Nashik) ].. Respondent
----------------------
Mr.Niteen Pradhan a/w Ms.Ameeta Kuttikrishnan, Ms.Shubhada D.
Khot, for Appellants.
Ms.P.P. Shinde, APP for State.
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J-Apeal-346-347.doc
CORAM : SMT.SADHANA S. JADHAV &
N.R.BORKAR, JJ.
RESERVED ON : 13th JANUARY,2021.
PRONOUNCED ON : 9th FEBRUARY,2021.
COMMON JUDGMENT : (PER : N.R.BORKAR, J)
1] Both these Appeals are filed against one and the same
Judgment and order dated 29th February, 2012 passed by the learned
Additional Sessions Judge, Nashik in Sessions Case No.66 of 2011.
Both these appeals were, therefore, heard together and are being
disposed of by this common Judgment.
2] In the above-mentioned sessions case thirteen accused
were tried for the offences punishable under Section 120-B, 143, 147,
148, 149, 302, 307, 504 and 506 of the Indian Penal Code and Section
135 of the Bombay Police Act. By the impugned Judgment the trial
court out of the said thirteen accused, convicted the accused No.3
(Appellant in Criminal Appeal No.347 of 2012) for the offence
punishable under Section 302 of the Indian Penal Code and sentenced
him to suffer R.I. for life and the accused No.4 (appellant in Criminal
Appeal No.346 of 2012) for the offence punishable under Section 307
of the Indian Penal Code and sentenced him to suffer R.I. for 5 years.
The trial Court acquitted rest of the accused.
J-Apeal-346-347.doc
3] The deceased Balu Gite was cousin of PW 10 Ravindra
Gite. The deceased Balu Gite and PW 10 Ravindra Gite were on
cross terms with accused No.1 Devidas Ingole (acquitted accused) on
account of managing the affairs of the temple situated in their locality.
Present accused Nos.3 and 4 are the sons of accused No.1.
4] The incident occurred on 28th October, 2010. On that day,
in the morning hours at about 5.00 to 5.30 a.m. dispute took place
between PW 10 Ravindra Gite and accused No.1 on account of
demolition of the compound wall of the temple by accused No.1 and his
family members, which was constructed by PW 10 Ravindra Gite and
his friends prior to one day of the incident. It is alleged that in the said
incident, accused No.1 threatened PW 10 Ravindra Gite and his friends
of dire consequences.
5] According to the prosecution, at the time of incident, which
took place at about 9.00 to 9.30 p.m. the deceased Balu Gite, PW 10
Ravindra Gite, PW 3 Mehul Mandlik and their friends were sitting in
front of the temple. At that time, the accused Nos.3 and 4 alongwith
other co-accused came there on 4 to 5 motorcycles. It is alleged that,
the accused, then assaulted the deceased Balu Gite, PW 3 Mehul
Mandlik and PW 10 Ravindra Gite by chopper, knife and sticks. The
J-Apeal-346-347.doc
deceased Balu Gite, PW 3 Mehul Mandlik and PW 10 Ravindra Gite
were taken to the Hospital. The deceased Balu Gite was declared
brought dead.
6] On the basis of the statement of PW 10 Ravindra Gite to
the police, crime was registered against present accused Nos.3 and 4
and other co-accused for the offences punishable under Section 120B,
143, 147, 148, 149, 302, 307, 504, 506 of the Indian Penal Code and
Section 135 of the Bombay Police Act. On completion of investigation
the charge-sheet was filed against them.
7] The accused were charged and tried for the above stated
offences. The trial Court, however, by the impugned Judgment and
order, as stated earlier, convicted the accused No.3 for the offence
punishable under Section 302 of the Indian Penal Code and accused
No.4 for the offence punishable under Section 307 of the Indian Penal
Code.
8] We have heard the learned counsel for appellants/accused
Nos.3 and 4 and the learned APP for the State.
9] The case of the prosecution is mainly based on direct
J-Apeal-346-347.doc
evidence of three eye witnesses viz : PW 3 Mehul Mandlik, PW 9
Yogesh Ghode and PW 10 Ravindra Gite. We have perused the
evidence of these eye witnesses.
10] According to PW 10 Ravindra Gite, who is the first
informant in the present case, on 27th October, 2010, he and his friends
constructed the compound wall of the temple. On 28th October, 2010
(the day of incident) at about 4.00 a.m. the accused No.1 alongwith the
present accused Nos.3 and 4 came at the temple and demolished the
said compound wall. He deposed that when he and his friends
questioned the accused No.1 as to why did he demolish the compound
wall, he threatened him and his friends of dire consequences. He,
therefore, alongwith his friends lodged the complaint with Panchwati
Police Station about the said incident. He deposed that on the very
same day they again started the construction of the compound wall.
However, it was repeatedly obstructed by the present accused Nos.3
and 4.
11] PW 10 has further deposed that at about 9.00 p.m., he,
the deceased Balu Gite, PW 3 Mehul Mandlik, Vishal Tajne and others
were sitting in front of the temple. At that time, the present accused
Nos.3 and 4 alongwith other co -accused came there on 4-5
J-Apeal-346-347.doc
motorcycles and started assaulting them. He deposed that accused
No.3 assaulted deceased Balu Gite by chopper on his stomach, chest
and neck. The other co-accused assaulted PW 3 Mehul Mandlik by
sticks. When he went to intervene, the accused No.4 ran behind him
and assaulted him by knife on left side of his back. He, therefore, ran
away from the place of incident.
12] PW 10 has admitted in his cross-examination that the
police registered the case against him, the deceased Balu Gite and
PW 3 Mehul Mandlik for allegedly assaulting accused No.1 by iron rod
on 28th October, 2010 at about 5.00 to 5.30 a.m. He has further
admitted that accused No.1 was not present at the time of incident. He
admits that they had a dispute with the accused No.1 as it was their
wish that the possession of the temple should be with their community
and not with accused No.1. It would thus appear from the evidence of
PW 10 that he and accused No.1 were on cross terms over
possession of the temple.
13] According to PW 3 Mehul Mandlik, at the time of incident,
12-13 persons came at the place of incident on motorcycles. Accused
No.3 took out chopper and assaulted the deceased Balu Gite by the
said chopper on his stomach. He deposed that Accused No.4 ran
J-Apeal-346-347.doc
behind PW 10 Ravindra Gite and assaulted him by knife on his back.
He further deposed that the other co-accused assaulted him by sticks,
because of which he became unconscious.
14] PW 3 in his cross-examination stated that police came to
Sanjivani Hospital at about 1.00 a.m.. Police did not make enquiry with
him nor he disclosed to the police about the incident and name of the
assailants. He has further admitted that accused No.1 was the trustee
of the temple and the temple was in his possession.
15] The evidence of PW 3 would show that no enquiry was
made with him by the police, while, he was in the Sanjivani Hospital nor
he on his own disclosed about the incident to the police.
16] According to PW 9 Yogesh Ghode on the day of incident
they were sitting in front of the temple. At about 9.00 to 9.15 p.m.
accused Nos.3 and 4 came there alongwith 7-8 persons on
motorcycles. A stampede took place there. Accused No.4 assaulted
PW 10 Ravindra Gite by knife on his back. Thereafter, he ran away
from there and rushed to his house. He has further deposed that PW
10 Ravindra Gite followed him to his house.
J-Apeal-346-347.doc
17] PW 9 has stated that after 5 to 7 minutes they came back
at the place of incident and saw that the deceased Balu Gite was lying
in pool of blood and PW 3 Mehul Mandlik was lying on the concrete
platform in front of the temple. He has stated that they brought PW 10
Ravindra Gite, the deceased Balu Gite and PW 3 Mehul Mandlik to
Civil Hospital. Balu Gite was declared brought dead. PW 9 has stated
that after primary treatment PW 10 Ravindra Gite and PW 3 Mehul
Mandlik were taken to Sanjivani Hospital.
18] In cross-examination PW 9 has admitted that he had filed
the case of defamation against accused No.1. He has further admitted
that he personally did not see who assaulted the deceased Balu Gite
and PW 3 Mehul Mandlik and how they were assaulted on the day of
incident. The evidence of PW 9 with regard to assault on the deceased
Balu Gite and PW 3 Mehul Mandlik, is, therefore, of no consequence.
19] The learned counsel for accused Nos.3 and 4 has
submitted that admittedly after the alleged incident, PW 10 Ravindra
Gite and PW 3 Mehul Mandlik were initially taken to Civil Hospital
where they were examined by PW 11 Dr.Sharad Patil and then in
Sanjivani Hospital where they were examined by PW 12 Dr.Abhishek
Dadhich. It is submitted that the evidence of PW 11 Dr.Sharad Patil
J-Apeal-346-347.doc
and PW 12 Dr.Abhishek Dadhich will show that both, PW 10 Ravindra
Gite and PW 3 Mehul Mandlik, were conscious and they did disclose
the history of alleged assault on them. It is submitted that both of them
have however not named the present accused Nos.3 and 4 or other
co-accused as assailants in the said history. It is submitted PW 10
Ravindra Gite has for the first time disclosed the names of the present
accused Nos.2 and 3 and other co-accused as assailants in his
statement at Exhibit -196 allegedly recorded at about 11.45 p.m. It is
submitted that possibility of false implication cannot be ruled out,
considering the enmity between the parties coupled with the delay in
disclosing the names of the present accused Nos.3 and 4 as
assailants.
20] It is submitted that the medical evidence on record is not in
consonance with the evidence of the alleged eye witnesses. It is
submitted that according to the injured Ravindra Gite, accused No.3
assaulted the deceased by chopper. It is submitted that however, no
evidence is brought on record to show that the injuries sustained by the
deceased are possible in case of assault by the chopper. It is
submitted that this fact also fortifies the possibility of false implication.
21] Admittedly, after the incident, injured PW 10 Ravindra Gite,
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PW 3 Mehul Mandlik and the deceased Balu Gite were taken to the
Civil Hospital Nashik. The deceased Balu Gite was declared brought
dead. PW 10 Ravindra Gite and PW 3 Mehul Mandlik were examined
by PW 11 Dr.Sharad Patil. PW 11 Dr.Sharad Patil has stated in his
evidence that while narrating the history of assault, neither PW 10 nor
PW 3 stated to him as to who assaulted them.
22] It further appears that after discharge from the Civil
Hospital, PW 10 Ravindra Gite and PW 3 Mehul Mandlik were admitted
in Sanjivani Hospital, Nashik, where they were examined by PW 12
Dr.Abhishek Dadhich. PW 12 has stated in his evidence that the
injured PW 10 Ravindra stated to him manner of assault, however, he
did not disclose to him name of assailants. PW 12 has further stated
that PW 3 Mehul did not disclose to him either about the incident or
about the assailants.
23] It appears that after admission of PW 10 Ravindra Gite and
PW 3 Mehul Mandlik in Sanjivani Hospital, an intimation to the Police
Station was given by the said hospital. The entry in the station diary to
that effect is at Exhibit 230. The entry at Exhibit 230 shows that
intimation was received at 22.40 hours and it was given by Dr.
Padmakar from Sanjivani Hospital. It further shows that history of
J-Apeal-346-347.doc
assault was disclosed to the said doctor as the date, timing and place
of incident is mentioned in the said entry. Though it is not clear from
the said entry as to who had narrated the history to the said doctor,
however, it is specifically recorded in the said entry that the assault
was made by unknown person.
24] The above facts would indicate that neither PW 10
Ravindra Gite nor PW 3 Mehul Mandlik disclosed the names of
assailants either to the doctors who examined them in Civil Hospital or
to the doctor of the Sanjivani Hospital.
25] At this stage, it will be appropriate to refer to the evidence
of the Investigating Officer PW 13 Shri Subhash Daule. PW 13 in his
evidence has stated that he had sent a copy of FIR to the Court on 30th
October, 2010. On being asked to explain as to why the copy of F.I.R.
was sent to the Court on 30/10/2010 instead of sending it on
29/10/2010, PW 13 has changed his version and stated that the copy
of FIR was sent on 29/10/2010 itself. We have perused the printed
copy of FIR which is at Exhibit 224. The date of receipt thereon is
30/10/2010. It would thus appear that the copy of FIR which is required
to be forwarded forthwith to the Court of Magistrate was forwarded
belatedly after one day.
J-Apeal-346-347.doc
26] PW 13 has further admitted that it did reveal during his
investigation that accused No.1 was assaulted by PW 10 Ravindra
Gite, PW 3 Mehul Mandlik and the deceased Balu Gite on the day of
incident in the morning by iron rod and was thus hospitalized. He has
further admitted that Accused No.1 was taken into custody from the
hospital at about 11.45 p.m. It would thus appear that though the
accused No.1 was in the Hospital at the time of incident, still he came
to be implicated in the crime in question.
27] PW 10 Ravindra Gite in his examination in chief itself has
stated that the persons who were accompanying the accused Nos.3
and 4 at the time of incident were not known to him and he does not
know their names. However, surprisingly in his statement at Exhibit
198 on the basis of which crime was registered, names of all the co-
accused are specifically mentioned therein.
28] The circumstances mentioned above do cast doubt on the
prosecution case and in the facts and circumstances of the case, it
would not be safe to hold that prosecution has proved it's case against
the present appellants/accused Nos.3 and 4 beyond reasonable doubt.
J-Apeal-346-347.doc
29] We are fortified in our above conclusion in view of one
more circumstance i.e. absence of evidence in relation to the fact that
the injuries sustained by the deceased were caused by chopper
allegedly recovered at the instance of accused No.3. According to PW
10 Ravindra Gite, accused No.3 assaulted the deceased Balu Gite on
his stomach, chest and neck by chopper.
30] PW 11 Dr. Sharad Patil who conducted postmortem on
the dead body of the deceased has stated in his evidence that on
external examination he found following injuries :
i] Incised wound, neck, right side, it was a spindle
shaped wound with clean-cut edges. The dimensions of the
injury were 4 x 1 x 1 c.m.
ii] Incise wound, right hypochondriac region of the size
of 1 x 1 x 0.5 c.m.
iii] Incise wound on chest, left side (Stab wound). It
was situated 3 c.m. away from the nipple. Its edges were clean-
cut. There was evidence of bleeding with clotted blood. The
dimensions of injury were 3 x 1 c.m. x finger can be inserted in
the thoracic cavity. Furthermore, 6th rib edge was cut.
J-Apeal-346-347.doc
31] PW 13 has deposed the cause of death as hemorrhagic
shock due to stab injury with hard sharp object and lung injury. In the
cross-examination, PW 11 has admitted that the police did not obtain
his opinion as to whether the injuries sustained by the deceased can be
caused by weapon Article 4 (chopper), by sending written requisition
alongwith the said weapon to him.
32] We have perused the description of chopper mentioned in
recovery panchanama at Exhibit 176. According to description blade of
chopper is sharp on one side and it has teeth on other side. Length of
blade is 7½ inch. However, it appears that deliberately it's width is not
mentioned. We are constrained to say so because in very same
Panchanama length and width of blade of knife is mentioned.
According to PW 11 the length of stab injury due to which the
deceased had died was 3 cm. In absence of complete dimensions of
chopper, it would not be safe to conclude that stab injury to the
deceased was caused by Article no.4 chopper.
33] Considering over all facts and circumstances, we are
constrained to hold that the prosecution has failed to prove it's case
beyond reasonable doubt against the present appellants/accused
Nos.3 and 4 also. In the result, following order is passed :
J-Apeal-346-347.doc
ORDER
i] Appeals are allowed.
ii] The impugned Judgment and order dated 29th
February, 2012 passed by Additional Sessions Judge, Nashik, in
Sessions Case No.66 of 2011 to the extent of convicting the
present appellants/accused Nos.3 for the offence punishable
under Section 302 and appellant/accused No.4 for the offence
punishable under Section 307 of the Indian Penal Code, is set
aside.
iii] Consequently, the appellants/accused Nos.3 and 4
are acquitted of the said offences.
iv] Appellant/accused Nos.3 is in Jail. He be released
forthwith, if not required in any other case.
v] Bail bonds of Appellant/accused No.4 stand
cancelled.
Vi] Fine amount, if any, paid by appellant/accused Nos.3
and 4 be refunded to them.
[N.R.BORKAR, J] [SMT.SADHANA S. JADHAV, J]
