Bombay High Court
The State Of Maharashtra vs Balu Bhagu Vashivle on 7 January, 2021
Bench: Prasanna B. Varale, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 181 OF 2000
The State of Maharashtra ... Appellant
V/s
1. Balu Bhagu Vashivle,
Age : 41 yrs.
2. Bhagu Santu Vashivle,
Age 67 yrs.
3. Bhika Pandurang Vashivle,
Age 22 yrs.
4. Ashok Pandurang Vashivle,
Age 20 yrs.
5. Tarabai Bhagu Vashivle,
Age 62 yrs.
6. Tanabai Balu Vashivle,
Age adult.
7. Chababai Rai Walanj,
Age 37 yrs.
8. Khandu Kondiba Vashivle,
Age 57 yrs.
9. Ganpat Khandu Vashivle,
Age 24 yrs.
10. Manisha Ganpat Vashivle,
Age 24 yrs.
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All residing at Tiskari, Tal. Mulshi
District : Pune. ... Respondents
( Original accused 1 to 10)
Mr. H.J. Dedhia, APP for the State-Appellant.
Mr. Rohit Shevate i/b Mr. Satyavrat Joshi, for Respondent No.1.
Mr. Sanjeev Kadam i/b Mr. Namdev Gore, for the Intervener.
CORAM : PRASANNA B. VARALE &
V.G. BISHT, JJ.
Reserved on : 24th November, 2020.
Pronounced on : 7th January, 2021.
JUDGMENT (PER : V. G. BISHT, J.)
This Appeal is filed by the State challenging the judgment and
order of acquittal dated 25th November, 1999 passed in Sessions Case
No. 451 of 1997 by learned Additional District and Sessions Judge, Pune
for the offences punishable under Sections 120B, 302, 324, 147, 148 of
the Indian Penal Code (for short "IPC").
2 At the outset it may be noted that in said Sessions Case No. 451 of
1997 there were ten accused. All of them came to be acquitted vide
impugned judgment and order which is subject matter of the present
Appeal. However, this Court ( Coram: J.A. PATIL & P. V. KAKADE, JJ.)
was pleased to admit the Appeal as against original accused (Balu
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Bhagu Vashivle-(A-1)-respondent No.1 and rejected as against rest of the
respondents-accused.
3 Narrated in nutshell, the prosecution case is that;
(a) The informant's father, namely, Mahipat Ramchandra
Vashivle ("deceased" for short) at the relevant time was
sarpanch of village Barpe, Tiskari and also a worker of
Congress Party. An agricultural land bearing Gat No. 172 of
village mouje Barpe is being cultivated by informant's uncle,
namely, Bhagu Santu Vashivale (A-2) and his cousin, namely,
Balu Bhagu Vashivale (A-1). The deceased was the tenant of
the said land of which the original owner is Ashok Dayaram
Gujar. Because of this, a tenancy proceeding started between
the informant's family and said A-1 and A-2. A-1 and A-2
always used to quarrel with informant and the deceased and
had expressed their intention of not relinquishing their rights
over the said agricultural land. In the election of Panchayat
Samiti A-1 and A-2 quarreled and fighted with informant
and deceased on the ground of informant giving support to a
Congress candidate.
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(b) On 10/06/1997 while informant and deceased were
travelling in a ST Bus, informant's cousin, namely, accused
Ganpat Khandu Vashivle quarreled and while alighting from
the bus at village Barpe again abused and rushed on
informant's person with a knife. At that time, the deceased
intervened and separated the quarrel.
(c) According to prosecution on 11/06/1997 at about 6-00
a.m. informant's cousin, namely, Vishnu Appa Vashivale
(PW-3) visited the informant's house and informed that
accused Ganpat Khandu Vashivle and Khandu Kondiba
Vashivle had gone to Poud police station in order to lodge the
complaint in respect of incident of previous night and while
proceeding to the police station they asked accused Balu
Bhagu Vashivle (A-1), Bhika Pandu Vashivle, Bhagu Santu
Vashivle, Ashok Pandurang Vashivle to kill you.
(d) Prosecution then alleges that at about 7-00 a.m. of
11/06/1997 accused Manisha Ganpat Vashivle, wife of
Ganpat Khandu Vashivale, came in front of the house of
informant and started abusing informant and the deceased.
The deceased tried to persuade her and asked her to go to her
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house. Even the deceased held Manisha Ganpat Vashivale by
her hand and dragged her to a certain distance. While the
deceased was returning, all of a sudden, prosecution alleges,
accused Bhagu Santu Vashivale (A-2), Balu Bhagu Vashivale
(A-1), Bhika Pandurang Vashivle, Ashok Pandurang Vashivle,
Tarabai Balu Vashivle, Tanabai Bhagu Vashivle and Chhaba
Rai Walanj came running armed with stones and sticks
towards the deceased and started beating him. As the
informant and his brother Bharat Mahipati Vashivle (PW-1)
intervened in order to save the deceased, both of them were
beaten by means of stones and sticks, as a result of which
Bharat Mahipati Vashivle sustained injuries on his head. The
deceased sustained serious injuries on his head and abdomen
and was, therefore, rushed to hospital where doctor declared
him dead.
4 The informant, therefore, approached Lonavla Police Station and
narrated the incident. Accordingly, PW 10-PSI Devanand Gulabrao Yadav
attached to Lonavla Police Station reduced into writing vide Exh. 62.
However, as the offence had taken place in the village Tiskari within the
jurisdiction of Paud Police Station, said PSI registered the offences under
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Sections 147, 148, 149, 324, 302 and 120 B of the Indian Penal Code
under C.R. No. 0/97 vide Exh. 63. Later on, the offences came to be
registered with Paud Police Station under C.R. No. 101/1997.
5 It appears from the record that PW-9 Investigating Officer after
having received the inquest panchanama (Exh. 16) started investigation.
PW-9 visited the place of offence and drew spot panchanama and also
seized four sticks lying on the spot apart from the other articles. During
the course of investigation he collected 7/12 extracts of the disputed
land, blood samples of accused, clothes on the persons of deceased,
informant and accused. He then forwarded all the seized articles to
Forensic Science Laboratory. He also collected Postmortem report and
CA reports and after completion of investigation forwarded the charge-
sheet against the accused.
6 To substantiate the charges against the respondent-accused, the
prosecution has examined as many as 10 witnesses and exhibited
number of documents. The respondent-accused was questioned under
Section 313 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short)
about the incriminating evidence and circumstances and he denied all
the circumstances as false. As per the additional written statement
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(Exh.66) given before the trial Court in support of the defence by the
present respondent-accused, it is seen that on 11/06/1997 the deceased-
informant and informant's brother Bharat after learning that accused
Khandu and Ganpat had gone to police station, came with sticks in front
of his house and not only started abusing but also started beating with
sticks because of which he sustained injuries on his head. Because of
scuffle between the informant and PW-1 Bharat on one hand and he on
the other, there was hue and cry and hearing this deceased came
running and fell near dilapidated house on the stones and sustained
injuries. In fact, he had not assaulted the deceased. Further, at the
relevant time no other accused was present.
7 Mr. Dedhia, learned APP, who is assisted by Mr. Sanjeev Kadam,
learned Advocate for intervener, vehemently submitted that despite their
being clinching evidence of eye witnesses, namely, PW-1, PW-2, PW-3
and PW-5, the learned trial Court wrongly disbelieved their testimonies
and wrongly held that all the testimonies are interested testimonies.
According to learned APP, the version of all the above-said witnesses are
consistent on the point of assault. Further, the oral evidence gets support
from the medical evidence. Despite this overwhelming evidence the
learned trial Court committed an error in acquitting the respondent-
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accused. Learned APP, therefore, prays reversal of judgment and order
of acquittal.
8 Mr. Shevate, learned counsel for respondent-accused, on the other
hand, has supported the impugned judgment and order of acquittal.
According to learned counsel, learned trial Court has taken into
consideration all the relevant circumstances and has properly
appreciated the evidence of prosecution witnesses. Since there is no
perversity and illegality and the fact that there is no merit in the Appeal,
same is liable to be rejected, argued learned counsel.
9 Before we undertake an exercise of appreciation and marshalling
the evidence of prosecution witnesses, we would like to make it clear
that the informant, namely, Laxman Mahipat Vashivle, in the present
case died during the course of the trial. It appears from the record that
the FIR (Exh. 62), therefore, came to be proved by prosecution through
PW-10 PSI Devanand Gulabrao Yadav, who had recorded the same at the
instance of deceased-informant.
10 First, we shall refer to inquest panchanama (Exh. 16 ) which is
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duly admitted in evidence by the defence and then the Postmortem
conducted by PW-8 Dr. Jai Vinayak Saswade. The inquest panchanama
clearly shows that there were two injuries, one on forehead and other on
back side of the head of the deceased. On front side of the forehead at
the center vertical injury of 1'' in length, with soaked blood was found.
The bones on both sides of this injury were found depressed inside.
Similarly, one more incised injury of 1" length was seen on back side of
head of the deceased. Let us see the findings of the postmortem.
11 PW-8 states in his evidence (Exh. 49) that on 11/06/1997 he was
acting as Medical Officer at Khandala Hospital. At about 2-00 p.m. a
dead body of deceased was brought. Dr. Jain was also called for doing
postmortem. Both of them started postmortem. They noted following
injuries on the dead body.
1) Contusion CLW size ¾ x ½ - bone deep on forehead near the
hairline with haematoma present.
2) CLW ½ x ½ bone deep on occipital protuberance.
3) Depressed fracture left Frontal bone 2" x 1½ 4" from bridge of
nose ¼ from midline.
All the injuries were antemortem.
On the postmortem, they noticed the following internal
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injuries on the dead body on the head:
1) Contusion with haematoma under the skull at left frontal
region.
On the skull- 1) Depressed fracture left frontal bone of size of 2" x
1½".
On the Brain - 1) Left frontal lobe congested with collection of
blood, laceration of memberane.
2) Laceration of left lobe of brain at frontal region with
haematoma.
12 According to this witness, the cause of death of deceased was
shock due to Haemorrage, due to depressed fracture of frontal bone with
laceration of left lobe of the brain with haematoma.
13 It is his further evidence that injury no. (3) mentioned in column
No. 17 of postmortem report corresponds to the internal injury
mentioned to the skull in column No. 19 (2) and also to the internal
injury mentioned in column No.19(1). Similarly, injury No.2 in column
No. 17 corresponds to the internal injury mentioned in column No.
19(3). According to him, the external injuries (1) (2) and (3) in column
No. 17 were on vital part of the body and in the ordinary course of
nature these injuries were sufficient to cause instant death. Further,
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injury No. (3) in column No. 17 was possible by a stone. This witness
then proved postmortem report at Exh.50.
14 Thus, having regard to the observations made in the inquest
panchanama which is also reflected in the findings of the postmortem
report and as also the opinion given by PW-8, Medical Officer, which is
not disputed, we are of the clear opinion that the deceased died a
homicidal death.
15 Coming to the prosecution case, what we gather from the contents
of FIR is that the parties to the dispute were not on cordial terms on two
counts. Firstly, a landed property dispute was going on between the
parties at the relevant time. Secondly, the accused party were nurturing
grudge against the informant and his family members as in a panchayat
samiti election which were held three months prior to the main
incident, the informant and his family members had supported a
candidate belonging to Congress Party.
16 Apart from above, we also note from the FIR that there were two
incidents. The first incident took place on 10/06/1997 immediately
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followed by the second and main incident dated 11/06/1997. Keeping
all these material factual aspects in mind, we are here to examine the
prosecution case.
17 PW-1 Bharat Mahipati Vashivle, an injured, states in his evidence
(Exh.19) that deceased was his father and deceased-informant was his
brother. His father had dispute with A-1 and A-2 on account of landed
property.
18 It is his further evidence that about two months prior to the actual
incident a quarrel took place at Lonavala when the deceased-informant
had gone to make a phone call. He had quarreled with accused Ganpat
Khandu Vashivle. While the informant was returning by ST Bus, accused
Ganpat was also in said ST Bus and had consumed liquor and abused
deceased-informant. His deceased-father was also in the said bus. After
they returned home his father disclosed him about the quarrel.
19 It is his further evidence that on the next day i.e. on 11/06/1997
in the morning, they were in their house. At about 7-00 a.m. accused
Manisha came in front of their house giving abuses. His father,
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therefore, came out and tried to convince her and told not to abuse and
that he would see in the matter. At that time, accused Bhika Pandurang
Vashivle came with sticks and started asking as to what was told to
Manisha. He abused and inflicted blow of stick on him. When he was
trying to catch his stick, meanwhile, accused Bhagu Santu Vashivle came
and inflicted stick blows on him. According to him, he told accused
Bhagu not to beat him but meanwhile A-1 came and pelted a stone on
his head and therefore, he sustained bleeding injury on his head.
20 It is his further evidence that Baban Ovhal (PW-2), Hari Khedekar
(PW-5) and Vishnu (PW -3), who were standing there came forward to
rescue him. They all separated the quarrel. A- 1 then pelted a stone on
the head of his father and he fell down. All the accused then ran away.
21 The evidence of this material witness can be divided into three
equal parts. The first part of his evidence is all about the incident which
had taken place two months prior to the main incident and we presume
it to be the incident dated 10/06/1997 as narrated in the FIR.
According to PW-1, at the relevant time the deceased-father and
informant were travelling in a ST Bus in which accused Ganpat was also
travelling. Not only accused Ganpat had consumed liquor but was also
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abusing them. Interestingly, his version does not get support from the
contents of FIR as it nowhere alleges that the accused Ganpat was
abusing the deceased and the informant and was under the influence of
liquor. Even otherwise, the evidence of this witness is in the nature of
hearsay evidence, admittedly, because he was not present and according
to his own evidence the incident dated 10/06/1997 was told to him by
his deceased father.
22 Second part of his evidence is about the main incident which
allegedly took place on 11/06/1997. His version again is not in
consonance with the contents of the FIR. It is nowhere alleged, as is
deposed by this witness, that at the relevant time accused Bhika
Pandurang Vashivle came first with stick and started asking deceased as
to what had he told to Manisha. It is also nowhere alleged in the FIR
that the said accused Bhagu Vashivle had inflicted stick blows on the
person of this witness. Even it is nowhere alleged in the FIR that A-1
pelted a stone on the head of this witness and as also on the head of the
deceased. What the FIR alleges is that all the accused armed with sticks
and stones started beating the deceased and the informant by means of
the said respective weapons. It is absolutely not a case of pelting of
stones, if we may say so.
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23 The third part of his evidence shows that at the time of incident
PW-2, PW-3 and PW-5 were very much present, who rescued the
informant and the deceased from the clutches of accused but
surprisingly again their presence is nowhere attributed in the FIR.
24 In order to substantiate alleged injuries on the person of this
witness, the prosecution has also examined PW-4 Dr. Sardarmal Chapaji
Parmar. PW 4 states in his evidence (Exh.25) that on 11/06/1997, he
examined Bharat i.e. present witness and found CLW over left frontal
region, 4cm x 1cm x 1cm bleeding, and injury was fresh. He then
proved medical certificate issued by him at Exh. 27.
25 The evidence of PW 4, Medical Officer clearly shows that he found
only one injury i.e. contused lacerated wound over left frontal region
4cm x 1cm x 1cm, whereas the evidence of PW 1 demonstrate
unequivocally that there were two assaults on his person. First assault
by means of sticks by accused Bhagu and Bhika and second assault by
means of pelting a stone on his head by A-1. As far as the assaults by
means of sticks allegedly by the said accused is concerned, there is
absolutely no finding or observation by the said Medical Officers.
Therefore, at the moment, we are not satisfied with the testimony of this
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witness.
26 PW 2- Baban Gopal Ovhal (Exh. 22) is also on the point of two
incidents viz. dated 10/06/1997 and 11/06/1997. Interestingly, he has
altogether different version to offer. Regarding the incident dated
10/06/1997, his evidence is that he was also travelling in the ST Bus in
which the deceased-informant and the deceased were travelling. There
was a quarrel between accused Ganpat and deceased-informant.
According to this witness, when ST Bus reached their village accused
Ganpat first got down followed by the deceased. Ganpat again went to
near the door of ST Bus but deceased-informant pushed him and then
there was hue and cry. The deceased then beat informant son and from
there they went to their house. Whatever this witness has deposed in his
evidence regarding the incident dated 10/06/1997 the same is
altogether different than what is alleged in the FIR and deposed by PW-1
injured.
27 Coming to the incident dated 11/06/1997. The evidence of this
witness shows that he had seen A-1, accused Bhika and accused Ashok
beating sarpanch i.e. the deceased which is again not the specific case of
prosecution. According to this witness, he separated A-1 and then made
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sarpanch i.e. deceased standing near him but then A-1 again pelted a
stone on head of the deceased and thereby caused bleeding injury. We
have already pointed out that it is not the case of the pelting of stone.
Similarly, it is not a case of PW-1 injured and as also the case of
prosecution that this witness saved deceased from the clutches of A-1
and made him stand near him.
28 Lastly, the evidence of this witness shows that he was also
assaulted by accused Ashok by means of stick blows but then PW-1 does
not say so. Needless to say the testimony of this witness falls short of
acceptance.
29 PW-3 Vishnu Appa Vahivile (Exh. 24) is also on the point of said
incidents. Rather, the evidence of this witness shows that he alongwith
PW-2 and accused Ganpat were present in the ST Bus. It would be quite
apt to point it here that the evidence of PW-2 nowhere shows the
presence of this witness in the ST Bus at the relevant time as is claimed
by this witness.
30 Coming to the main incident dated 11/06/1997, PW-3 states that
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he had seen the accused Manisha abusing the deceased and the
deceased-informant. He further saw accused Bhika Vashivle came
running with a stick and started abusing the deceased and the
informant. When Bharat Vashivle (PW-1) asked him why he was
abusing, accused Bhika Vashivle inflicted blows on the leg of Bharat. He,
Hari Khedekar (PW-5) and Baban Ovhal (PW-2) rescued the scuffle. It is
his further evidence that A-1 had also pelted a stone on the head of
deceased. The evidence of this witness on the point of incident dated
11/06/1997 is also not satisfactory inasmuch as according to his
evidence, accused Bhika had given stick blows on the leg of Bharat
(PW-1) which is nowhere deposed to by Bharat himself. Although, this
witness claimed that he and others rescued the deceased and informant
but their names are not revealed in the FIR.
31 The evidence of this witness also shows that in the morning of
11/06/1997 when he went to the house of Bhika Pandurang Vashivle to
solicit his plough, he found some persons sitting on the ota of house of
Bhika. Accused Bhagu, accused Balu, accused Ashok, accused Khandu,
accused Ganpat, accused Tanabai, accused Chhababai and accused
Tarabai were present. He also heard accused Khandu and accused
Ganpat telling the others that on account of the incident of that day and
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the landed dispute, they should finish the informant and the deceased.
According to him, when those persons saw him they all dispersed.
32 Having regard to the unsatisfactory testimony of this witness on
the point of incidents dated 10/06/1997 and 11/06/1997 and the fact
that this witness is on very good terms with the complainant party, we
are not inclined to accept this piece of evidence showing whatever he
overheard from the mouth of other accused persons. Therefore, we
distance ourselves from the testimony of this witness.
33 PW-5 Hari Laxman Khedekar is the last eye witness on the point of
the incidents. It appears from his evidence (Exh. 28), like other two
witnesses, namely, PW-2 and PW-3, he was also travelling in a ST Bus on
10/06/1997 wherein a minor scuffle took place between PW-1 Bharat
Mahipati Vashivle and accused-Ganpat. However, the theory introduced
by him in his evidence is neither in consonance with the contents of FIR
nor the FIR anywhere shows the presence of this witness in the ST Bus
on 10/06/1997.
34 As far as incident dated 11/06/1997 is concerned, his evidence
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shows when accused Manisha came abusing, the deceased and the
informant, both tried to persuade her, however, again this is not the case
as per FIR. His evidence then shows that when accused Bhika came
armed with a stick PW-1 tried to prevail over him by saying that they
would settle the matter but Bhika inflicted the blows on the thigh of PW-
1. This is again neither the case of prosecution nor PW-1 Bharat himself
has deposed so in his substantive evidence.
35 His evidence then shows that accused Bhagu, Ashok and A-1
started beating informant and Bharat (PW-1) with sticks which is again
not in line with the case of prosecution as narrated in the FIR. Lastly,
the evidence of this witness shows that A-1 took one stone and pelted it
on the head of deceased. At the cost of repetition, we again point it out
here that the case of prosecution is not of stone pelting but of beating
the informant party by means of stones and sticks.
36 From the above discussion, it is more than clear that all these so
called material witnesses, namely, PW-1, PW-2, PW-3 and PW-5
materially differ from each other and their respective versions are
inconsistent with each other. Even the medical evidence does not
support the evidence of PW-1 injured as is pointed out by us in the
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earlier part of our discussion.
37 It is also significant to note from the cross-examination of PW-1
injured which is an admitted position that at the time of incident dated
11/06/1997 around 50 persons had gathered near the place of incident.
Not a single independent witness is examined by the prosecution for the
reasons best known to it. Having regard to the serious inconsistencies
and infirmities noted amongst versions of above-said witnesses and the
fact that no independent witness is forthcoming, a shadow of doubt is
cast over the theory of prosecution.
38 This brings us to the remaining evidence on record. The
prosecution has also placed reliance the reports issued by Chemical
Analyzer. However, in view of several inconsistencies as noted herein-
above, the Chemical Analyzers Reports lose their worth and force.
39 The above being the nature of evidence and obtaining
circumstances the learned trial Court held that prosecution has failed to
prove its case beyond reasonable doubt and extended benefit of doubt in
favour of the respondents -accused. This finding of the trial Court could
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not be said to be perverse. It was based on a proper appreciation of
evidence.
40 For the aforesaid reasons, we find no merit in the Appeal and,
therefore, Appeal is accordingly dismissed.
(V.G. BISHT, J.) ( PRASANNA B. VARALE, J.)
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