[Cites 20, Cited by 0]
Bombay High Court
Angad Vithal Kohale And Ors vs The State Of Maha And Ors on 6 January, 2026
2026:BHC-AUG:92-DB
CRI. APPEAL NO. 674 OF 2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 674 OF 2002
1. Angad s/o Vithal Kohale,
Age 48 years, Occu. Agriculturist,
R/o Haregaon, Taluka ausa,
District Latur.
2. Pandit s/o Vasant Kohale,
Age 39 years,
Occu and R/o as above
3. Sugriv s/o Vithal Kohale,
Age 44 years,
Occu and R/o as above
4. Vasant s/o Vithal Kohale,
Age 69 years,
Occu and R/o as above
5. Ganesh s/o Shankar Mudabe, ... The appeal stands abated against
appellant Nos. 4 and 5, as per the
Age 34 years, order of the Hon'ble Court dated
Occu and R/o as above 22.11.2017.
6. Mohan s/oLimbaji Kohale,
Age 39 years,
Occu and R/o as above
7. Netaji s/o Vasant Kohale,
Age 31 years,
Occu and R/o as above
8. Prabhakar s/o Vinayak Kohale
Age 31 years, ... Appellants.
Occu and R/o as above (Ori. Accused Nos. 1 to 7 and 15)
VERSUS
1. The State of Maharashtra ... Respondent.
(Ori. Complainant)
...
• Mr. V. D. Sapkal, Senior Advocate a/w. Mr. Amit Gadekar,
Advocate i/by. Mr. S. R. Sapkal, Advocate for the Appellants.
• Mr. N. S. Tekale, APP for Respondent - State
...
Jhs/ 1/49
CRI. APPEAL NO. 674 OF 2002
CORAM : SANDIPKUMAR C. MORE, J
AND
MEHROZ K. PATHAN, J.
RESERVED ON : 07.10.2025
PRONOUNCED ON : 06.01.2026
JUDGMENT :
[PER MEHROZ K. PATHAN, J.]
1. The appellants (original accused Nos. 1 to 7 and 15), who
were convicted by the learned Additional Sessions Judge, Latur, in
Sessions Trial No. 35 of 1999, vide judgment and order dated
31.10.2002, have preferred the present appeal challenging:
a) their conviction under Section 302 read with Section 149 of
the Indian Penal Code and the sentence of imprisonment for
life along with a fine of ₹1,000/-, each;
b) their conviction under Sections 147 and 148 of the Indian
Penal Code and the sentence of rigorous imprisonment for
three months each;
c) the conviction of original accused Nos. 2, 3, 8 and 15 under
Section 341 read with Section 34 of the Indian Penal Code and
the sentence of rigorous imprisonment for 15 days; and
d) the conviction of original accused Nos. 2, 4, 6, 7 and 15 under
Section 324 read with Section 149 of the Indian Penal Code
and the sentence of rigorous imprisonment for six months.
CRI. APPEAL NO. 674 OF 2002
2. The prosecution case, in brief, is that PW-3 Arvind Kohale,
other injured witnesses, and the accused are residents of village
Haregaon, Taluka Ausa, District Latur. On 12.12.1998, PW-3 Arvind
Kohale lodged a report at Police Station Killari stating that his cousin,
PW-2 Pratap Kohale, had gone with a tractor and trolley to load soil
from heaps lying in the field of Vishnu Bapurao Kohale. Pratap
Kohale returned and informed that accused Sugriv Pandit Kohale and
Angad Kohale restrained him from lifting the soil, claiming that the
soil belonged to them.
3. It is alleged that at about 9.00 a.m., accused Angad Kohale,
Pandit Kohale, Sugriv Kohale, Netaji Kohale, Vasant Kohale, Vithal
Kohale, Prabhakar Kohale, Ganesh Mudabe, and Mohan Kohale
gathered near the tractor and trolley, armed with sticks, axes,
daggers, and sugarcane cutters. When Govind Kohale questioned
them about the restraint caused to Pratap Kohale, accused Angad
Kohale assaulted Govind with a dagger and accused Pandit Kohale
assaulted him with an axe. When PW-3 Arvind Kohale intervened, he
and Govind were allegedly assaulted by accused Pandit Kohale,
Angad Kohale, Netaji Kohale, Sugriv Kohale, and Ganesh Mudabe
with axes, daggers, and sugarcane cutters. Accused Vasant Kohale,
Mohan Kohale, and Prabhakar Kohale assaulted Vishnu and Karan
CRI. APPEAL NO. 674 OF 2002
with sticks and axes. After the incident, villagers gathered at the spot
and intervened. Govind Kohale sustained multiple injuries and
succumbed while being taken to Rural Hospital, Killari.
4. On the basis of these allegations, Crime No. 147 of 1998 came
to be registered at Police Station Killari for the offences punishable
under Sections 147, 148, 302, 324, 323, and 341 read with Section
149 of the Indian Penal Code.
5. Thus, First Information Report No. 147 of 1998 came to be
registered at Killari Police Station, District - Latur. After completion of
investigation, the Investigating Officer filed the charge-sheet and the
case was committed to the Court of Sessions at Latur.
6. It was revealed during the course of investigation that there
were two rival groups in village Limbad, one led by the deceased
Govind Kohale and the other by accused Angad Kohale. The relations
between the accused and the injured persons were inimical. It was
further found that all the accused persons had formed an unlawful
assembly with the common object of committing rioting and were
armed with deadly weapons such as axes and sugarcane cutters. In
furtherance of their common object, they committed the murder of
deceased Govind Kohale by assaulting him with deadly weapons on
vital parts of his body. The learned Additional Sessions Judge, Latur,
vide judgment and order dated 31.10.2002, was pleased to convict
CRI. APPEAL NO. 674 OF 2002
the present appellants (original accused Nos. 1 to 7 and 15) for the
aforementioned offences. Out of fifteen original accused persons who
were put on trial for the offence of murder, eight accused came to be
convicted, while the remaining seven accused were acquitted of all
the charges.
7. It was also found that the accused persons had voluntarily
caused grievous and simple injuries to Arvind Kohale and other
injured persons and had wrongfully restrained Pratap Kohale from
loading soil in a tractor-trolley. Upon completion of investigation,
charge-sheet was filed at Killari Police Station for the offences
punishable under Sections 147, 148, 302, 324, 323 and 341 read
with Section 149 of the Indian Penal Code. The learned Judicial
Magistrate First Class, Ausa, thereafter committed the case to the
Court of Sessions, as the offence under Section 302 of the Indian
Penal Code is triable exclusively by a Sessions Court.
8. It can be seen from the record that this Court, vide order dated
29.04.2005, dismissed the Criminal Appeal No. 300 of 2003 filed by
the State of Maharashtra against the acquittal of accused Dhananjay,
Umesh, Rajendra, Vaijnath, Satish, Balu and Tatyarao. It is further
seen from the record that this Court, vide order dated 02.12.2002,
suspended the substantive sentence imposed upon all the appellants,
subject to the condition of depositing the fine amount in the trial
CRI. APPEAL NO. 674 OF 2002
Court. Appellant Nos. 4 and 5 having expired, the appeal as preferred
by appellant Nos. 4 and 5 has abated, in view of the order passed by
this Court dated 22.11.2017. Be that as it may, the appeal has now
come up for final hearing. We have heard the learned senior counsel
Mr. Sapkal, along with the assisting counsel appearing for the
appellants, and the learned APP Mr. Tekale, appearing for the
respondent-State. With their assistance, we have also perused the
record and proceedings of the appeal.
SUBMISSIONS OF BEHALF OF THE APPELLANTS :-
9. It is the submission of the learned senior counsel Mr. Sapkal for
the appellants that there are material discrepancies in the prosecution
case, particularly in the testimonies of the prosecution witnesses. The
variances are of such a nature that they go to the root of the matter,
and therefore, the conviction based on such weak and unreliable
evidence is liable to be set aside.
10. Learned counsel specifically emphasized the admissions
elicited during the cross-examination of PW-1 Balaji Kohale, who was
examined as a spot panch. It is submitted that PW-1 is an interested
witness, being the brother of Shivaji Kohale, who was an accused in
the counter case being Crime No. 9 of 2000 along with one Bhagwat,
who is the real cousin of the said spot panch, Balaji Kohale. It is
CRI. APPEAL NO. 674 OF 2002
further submitted that PW-1 Balaji Kohale admitted that he did not
know the survey number of the land which was acquired for
rehabilitation of the old village Nimbala and further admitted that
heaps of earth were excavated at the site for the purpose of
rehabilitation of the new village Nimbala (Dau).
11. PW-2 Pratap Kohale, who claims to be an eye-witness to the
incident, PW-2 has admitted that the deceased Govind Kohale was his
cousin and that the deceased had been active in politics since the
year 1995. The said witness has further admitted that he himself,
along with his cousin Govind and four other brothers were accused in
a criminal case filed by Angad Kohale and that they were acquitted
therein in the year 1998. It is further submitted that PW-2 has stated
that they had gone to bring earth from the field of PW-4 Vishnu
Kohale, where the earth was lying in heaps, and when the labourers
had started loading the earth into the tractor, accused Pandit Kohale,
Sugriv, Dhananjay and Prabhakar arrived at the spot near the tractor
and restrained them from excavating the earth. According to PW-2,
the said accused narrated the incident to PW-4 Vishnu Kohale, who in
turn stated that he would make enquiries with the accused persons
who had come to stop them from loading the earth into the tractor.
12. PW-2 Pratap Kohale has further stated that on the next day,
PW-4 Vishnu Kohale informed him that they could excavate and take
CRI. APPEAL NO. 674 OF 2002
the earth. Accordingly, when PW-2 Pratap Kohale went to excavate
the soil along with labourers and the vehicle, all the accused persons
objected to the digging of the earth and started abusing PW-2 Pratap
Kohale. They allegedly assaulted him by fist and kick blows and also
pelted stones. Thereafter, the witness ran to the house of the
deceased Govind Kohale, where PW-4 Vishnu Kohale was also
present, who had earlier permitted them to excavate the earth.
Subsequently, Govind Kohale, Vishnu Kohale, Arvind Kohale and
Karan Kohale went to the spot where the tractor was parked, and it is
thereafter that the actual incident resulting in the commission of the
murder took place.
13. It is further submission of the learned senior counsel for the
appellants that the deceased Govind Kohale and the other persons
who had accompanied him were, in fact, the aggressors and had gone
to the spot with an intention to take revenge, and it is in those
circumstances that the incident occurred, in which the deceased
Govind Kohale lost his life. It is emphasized that the excavation of
earth was undertaken after the rehabilitation of Village Haregaon and
Village Nimbala, and that the agricultural land in question is situated
between the said two villages.
14. Learned senior counsel further submitted that accused Angad,
Pandit, Tatyarao and Prabhakar were witnesses in an earlier Sessions
CRI. APPEAL NO. 674 OF 2002
case which ended in acquittal of deceased. It is also pointed out from
the cross-examination of PW-2 Pratap Kohale that he himself was an
accused in the case filed by Vinayak Kohale. It is contended that there
are material discrepancies with regard to the weapons attributed to
each of the accused.
15. It is submitted that PW-2 Pratap Kohale has stated that accused
No. 2 Sugriv was carrying a stick, accused Nos. 5 Ganesh and 7 Netaji
were also carrying sticks, accused No. 15 Prabhakar was carrying an
axe, and accused Nos. 4 Vasant and 6 were also carrying sticks.
However, material omission has been brought on record inasmuch as
the said witness admitted that he had not stated before the police
that accused No. 2 Sugriv had given a wooden stick blow or that
accused Nos. 5 Ganesh and 7 Netaji had given kick blows to Govind
Kohale and Arvind Kohale. He further admitted that he had not
stated in his police statement that all the accused persons were
assaulting Govind Kohale with axes and sticks.
16. It is further submitted by the learned counsel for the appellants
that PW-2 Pratap Kohale admitted in his cross-examination that he
had stated before the police that accused No. 6 Mohan and accused
No. 4 Vasant were assaulting Karan and Vishnu with wooden sticks,
and that accused No. 15 Prabhakar was assaulting Karan and Vishnu
with axe blows; however, the police failed to record the aforesaid
CRI. APPEAL NO. 674 OF 2002
facts in his statement. This, according to the learned counsel, clearly
demonstrates material discrepancies and omissions in the testimony
of PW-2 Pratap Kohale, rendering his evidence unreliable.
17. It is contended that the defence has been able to elicit from the
prosecution witnesses admissions indicating that the deceased
Govind Kohale and his companions were the aggressors, who, instead
of resorting to the due course of law, went to the spot armed with
weapons and initiated the assault on the accused persons. The
incident, therefore, escalated into a free fight, during which the
deceased Govind Kohale lost his life.
18. It is further submitted that accused Nos. 3, 4, 5, 6 and 15
sustained injuries in the said incident, which lends support to the
defence version that the accused persons were present at the spot
only to prevent excavation of earth, which was likely to cause loss to
them. It is pointed out that similar incidents had occurred earlier,
wherein PW-2 Pratap Kohale had been stopped from excavating the
soil. However, on the present occasion, the deceased Govind Kohale
and his companions allegedly resorted to violence, which ultimately
led to the death of the deceased. Thus, it is urged that the evidence
on record establishes that the deceased party were the aggressors.
19. Another submission advanced by the learned senior counsel for
the appellants is that none of the labourers who had accompanied
CRI. APPEAL NO. 674 OF 2002
PW-2 Pratap Kohale for excavation of soil on the earlier occasion as
well as on the date of the incident were examined by the prosecution,
despite the fact that their presence at the spot was natural and they
could have been independent witnesses. It is submitted that the land
of accused Angad Kohale is adjacent to the land and is situated near
the spot of the incident, and therefore the presence of the accused at
the spot was natural.
20. Learned senior counsel further submits that the defence
version, that the deceased party were the aggressors, could be
gathered from the circumstances. It is contended that instead of
reporting the incident wherein PW-2 Pratap Kohale was allegedly
prohibited initially from excavating the soil, the deceased party chose
to take the law into their own hands, which, according to the
defence, is the genesis of the incident culminating in the murder of
deceased Govind Kohale.
21. It is further submitted that PW-3 Arvind Kohale is also a related
and interested witness. Though he is an injured witness, it is
contended that implicit reliance cannot be placed on his testimony as
he is the real brother of the deceased Govind Kohale. PW-3 Arvind
has stated that PW-2 Pratap Kohale had taken the tractor along with
labourers on the date of the incident to bring earth and had returned
to inform that accused Angad and Pandit had assaulted him.
CRI. APPEAL NO. 674 OF 2002
Thereafter, Govind Kohale, Vishnu Kohale and Karan Kohale
accompanied PW-2 Pratap Kohale and PW-3 Arvind Kohale to the
spot.
22. It is pointed out that although PW-3 Arvind Kohale has stated
that he was assaulted by accused Angad and Pandit with an axe, the
medical certificate does not show any axe injury on his head and the
injury noted is simple in nature. The said witness has further
admitted that villagers had assembled at the spot and that there was
a free fight. His statement that he sustained an axe blow on the head,
when read in the light of the medical evidence, suggests that persons
from both sides had assembled at the spot and assaulted each other.
It is, therefore, contended that there was no intention on the part of
the accused persons to commit the murder of the deceased Govind
Kohale.
23. It is further submitted by the learned senior counsel for the
appellants that there existed long-standing enmity between the
deceased party and the accused party, as several members of both
sides were involved in the murder case of Vinayak, which had
occurred in the year 1996. In view of such prior enmity, the
possibility of false implication of the appellants cannot be ruled out.
Learned senior counsel submits that the defence has successfully
elicited admissions from the prosecution witnesses to establish that
CRI. APPEAL NO. 674 OF 2002
the deceased Govind Kohale and his cousins were accused in the
murder of Vinayak in the year 1996, thereby clearly demonstrating
deep-rooted animosity between the two groups.
24. Learned senior counsel further submits that the evidence on
record indicates that the deceased Govind Kohale, along with Karan
Kohale, Vishnu Kohale, Arvind Kohale and Pratap Kohale, were the
aggressors who had gone to the spot armed with various weapons,
resulting in a free fight. In such circumstances, it is not possible to
precisely ascertain as to who assaulted whom, and therefore, it
cannot be inferred that there was any intention on the part of the
accused persons either to commit the murder of the deceased Govind
Kohale or to cause injuries to PW-3 Arvind Kohale.
25. It is further contended that material omissions and
discrepancies have been brought on record from the testimony of PW
-3 Arvind Kohale. Though he initially stated that accused Mohan and
Vasant were armed with sticks, accused Prabhakar was armed with an
axe and that accused Pandit had given an axe blow on his head, he
failed to state these material particulars in his police statement.
Instead, he merely stated that all the accused had assaulted them,
which fact is also not reflected in the police statement.
26. Learned senior counsel points out that in view of such
discrepancies, the learned Trial Court itself has disbelieved the
CRI. APPEAL NO. 674 OF 2002
testimony of PW-3 Arvind Kohale insofar as the alleged assault on
him is concerned. In paragraph No. 95 of the impugned judgment,
the learned Trial Court has observed that the evidence adduced by
the prosecution regarding the injuries sustained by Arvind Kohale is
inconsistent with the medical certificate and, therefore, the
prosecution failed to prove beyond reasonable doubt that the accused
persons had assaulted PW-3 Arvind Kohale in the incident.
27. The learned senior counsel further submits that PW-4 Vishnu
Kohale is projected by the prosecution as a material witness. PW-4
has deposed that the land of accused Angad Kohale is adjacent to the
villages Limbala and Haregaon and has also admitted that there was
enmity between the two rival groups, particularly in view of the
implication of the deceased Govind Kohale and his cousins in the
murder case of Vinayak. PW-4 has further stated that he had asked
accused Prabhakar and Dhananjay not to obstruct the removal of
earth from his field, and that they had assured him accordingly.
Thereafter, PW-4 has narrated the incident as having taken place.
28. It is the submission of the learned senior counsel that the
defence has successfully elicited admissions from PW-4 to establish
that the spot of the incident was situated near the land of accused
Angad Kohale and that the land of accused Sugriv Kohale is adjoining
the land of accused Angad Kohale, thereby showing that the presence
CRI. APPEAL NO. 674 OF 2002
of the accused at the spot was natural.
29. It is further pointed out that PW-4 Vishnu Kohale stated that
when he, along with the deceased and other prosecution witnesses,
reached the spot, accused Angad was armed with a dagger, accused
Pandit with an axe, accused Ganesh with a sugarcane cutter, accused
Sugriv with a sugarcane cutter, accused Prabhakar with an axe, and
accused Mohan, Vasant and Netaji with sticks. He further stated that
accused Angad, Pandit and Ganesh assaulted the deceased Govind
Kohale repeatedly, while accused Vasant assaulted PW-4 Vishnu
Kohale and Karan Kohale with a stick, accused Prabhakar assaulted
him with an axe, and accused Mohan assaulted with a stick.
30. Learned senior counsel submits that although PW-4 claimed to
have stated all the aforesaid facts to the police, the same do not find
place in his police statement, thereby constituting material omissions
and discrepancies which materially affect the credibility of his
testimony.
31. The learned senior counsel further submits that PW-4 Vishnu
Kohale has stated in his testimony that accused Vasant, Prabhakar,
Ganesh, Mohan and Sugriv had sustained injuries in the incident and
were undergoing treatment at the hospital at Killari. He further
stated that accused Vaijnath had hit accused Mohan on the head with
a stone and that accused Vaijnath had rushed with a stick to assault
CRI. APPEAL NO. 674 OF 2002
Dattatray, who saved himself by taking shelter under the tractor.
32. Learned senior counsel submits that although PW-4 claimed to
have stated all the aforesaid facts to the police, the same were not
recorded in his police statement, thereby constituting material
omissions. PW-4 Vishnu Kohale further stated that PW-2 Pratap
Kohale had informed him that accused Pandit, Sugriv, Dhananjay and
Prabhakar had told Pratap that the soil belonged to them and that it
was their field, and therefore they would not permit excavation of the
soil.
33. The learned senior counsel further submits that PW-4 Vishnu
Kohale is an interested witness, who has deliberately suppressed
material facts relating to the ownership of the land in question and
has also failed to examine or bring on record the employee of the
company who had allegedly stopped the excavation of soil from his
field. In the absence of such material evidence, the testimony of PW-4
Vishnu Kohale, according to the learned senior counsel, cannot be
safely relied upon.
34. PW-5 Sharad @ Karan Kohale is another witness relied upon by
the prosecution. The learned senior counsel assails the testimony of
the said witness on the ground that it suffers from material
discrepancies and variances, inasmuch as each witness appears to be
narrating a different version of the incident, with attempts to improve
CRI. APPEAL NO. 674 OF 2002
upon or align with the testimony of other witnesses. The testimony of
PW-5 Karan Kohale has, in fact, been disbelieved by the learned Trial
Court in paragraph No. 99 of the impugned judgment, wherein it is
observed that although PW-5 stated that accused Angad had given a
dagger blow on the left side of his middle finger, the injury certificate
reflects that PW-5 sustained a contused lacerated wound on the
occipital area, which is simple in nature. Thus, though PW-5 Karan
Kohale did sustain injuries, there is no corroborative evidence led by
the prosecution to establish as to which accused assaulted him or by
what means. Consequently, the learned Trial Court has disbelieved
the prosecution case insofar as the injuries allegedly sustained by PW-
5 Karan Kohale are concerned.
35. The learned senior counsel submits that, even from the
testimony of PW-5 Karan Kohale, what can be deduced is that there
existed enmity between the two rival groups, and the deceased party
proceeded straight to the spot to settle the matter on their own,
instead of reporting it to the police. It is further evident from the
cross-examination of the said witness that the deceased party had
carried weapons with them to the spot, which led to the quarrel and
ultimately resulted in the death of the deceased Govind Kohale.'
36. The learned senior counsel further assails the testimony of PW-
6 Dattatray Pawar. PW-6 deposed that accused Sugriv, Ganesh, Angad
CRI. APPEAL NO. 674 OF 2002
and Pandit were assaulting the deceased Govind Kohale with
sugarcane cutters, and that when Govind lay dead on the ground, he
(PW-6) tried to rescue him, upon which accused Angad allegedly
struck him on the back of his right shoulder with a dagger. PW-6
stated that he took shelter under a trolley to save himself, and that
Arvind, Sheshrao and he then went to the police station in a jeep,
with Arvind sustaining a bleeding head injury and their clothes
stained with blood. The learned senior counsel submits that, from the
statement of the said witness, it is evident that PW-6 had proceeded
to the police station from the ST stand and was not present at the
actual spot of the incident. The testimony of PW-6 Dattatray Pawar
was accordingly disbelieved by the learned Trial Court. In paragraph
100 of the impugned judgment, the Trial Court has held that the
prosecution has failed to prove beyond reasonable doubt that the
accused persons assaulted PW-6 Dattatray Pawar in the said incident.
37. The learned senior counsel further assails the testimony of PW-
7 Chandrakant Kohale. PW-7 deposed that he was present at the time
of the assault and that he was allegedly assaulted by accused Mohan
with a stick and by accused Netaji with an axe on his head. He
further stated that after he fell down, accused Umesh assaulted him
on the chest with a stick, accused Angad assaulted the deceased
Govind Kohale with a dagger, accused Pandit assaulted Govind with
CRI. APPEAL NO. 674 OF 2002
an axe, accused Sugriv assaulted Govind with a sugarcane cutter, and
accused Ganesh assaulted Govind with a sugarcane cutter. Learned
senior counsel submits that the medical certificate of PW-7
Chandrakant Kohale shows that he sustained contused lacerated
wounds on the middle of the scalp and just below the right knee
joint, inflicted by a hard and blunt object. This is contrary to his
testimony claiming that accused Netaji assaulted him on the head
with an axe. In view of this material discrepancy, the testimony of
PW-7 cannot be relied upon.
38. It is further submitted that the defence has elicited admissions
from PW-7 Chandrakant Kohale, who is the real brother of PW-4
Vishnu Kohale, that he was not aware why the police recorded in his
statement, that on 12.12.1998 at around 09:00 a.m., he came to
know that people from Angad's party were assaulting Govind Kohale
and his brother near Village Nimbala Dau, and that he then went to
the spot. This admission indicates that he was not actually present at
the scene of the incident, thereby materially undermining his earlier
testimony. The testimony of PW-7 Chandrakant Kohale has, therefore,
been disbelieved by the learned Trial Court. The Court, in its
judgment, observed that the injuries sustained by PW-7 were caused
by a hard and blunt object and that the prosecution evidence was
insufficient to establish that any of the accused assaulted
CRI. APPEAL NO. 674 OF 2002
Chandrakant Kohale.
39. The learned senior counsel further assails the testimony of
PW-8 Satish Kohale. It is submitted that PW-8 stated that he was
informed by one Bhagwat that there was likely to be a quarrel at the
spot, and he was advised to go there. This, according to the learned
senior counsel, indicates that the deceased party were the aggressors.
PW-8 further deposed that accused Angad Kohale started assaulting
the deceased Govind Kohale with a dagger, while accused Pandit
assaulted him with an axe. When PW-8 attempted to run from the
spot, accused Vasant allegedly ran towards him and assaulted him on
the head with a stick, causing bleeding. PW-8 also stated that several
persons sustained injuries during the incident.
40. Learned senior counsel further submits that the statements of
the witnesses themselves indicate that many villagers had sustained
injuries when a large number of persons had assembled at the spot,
resulting in a free fight. In such circumstances, it is contended that
the witnesses are selectively implicating only the accused persons
with the intention of framing them for a serious offence. It is further
submitted that PW-8 Satish Kohale admitted during his examination
that he did not see any of the accused sustaining injuries during the
incident, nor did he see accused Prabhakar being admitted to the
hospital for several days.
CRI. APPEAL NO. 674 OF 2002
41. Learned senior counsel points out that the evidence of PW-8
Satish Kohale has also been disbelieved by the learned Sessions
Court. In paragraph 102 of the judgment, the Court observed that the
other injured witnesses who sustained injuries during the incident did
not corroborate PW-8's claim of injury. Furthermore, the injury
certificate of PW-8 (at page 725 of the paper book) shows that he had
only a contused lacerated wound and not the incised wound alleged
by him near his right eye, which he claimed to have received when
accused Angad assaulted the deceased Govind Kohale with a dagger.
This discrepancy, according to the learned senior counsel,
undermines the credibility of PW-8's testimony.
42. The learned senior counsel further assails the testimony of PW-
9 Shivaji Kohale, who claims to be an eyewitness and states that he
observed the incident from a distance of approximately 100 feet. PW-
9 has given descriptions of the weapons allegedly held by each of the
accused: Angad with a dagger, Sugriv with a sugarcane cutter, Vasant
with a stick, Netaji with a stick, Balu Pawar with a stick, Ganesh with
a sugarcane cutter, Rajendra with a stick, Vaijnath with a stick,
Mohan with a stick, and Dhananjay with a stick. PW-9 specifically
deposed that accused Ganesh was assaulting the deceased Govind
Kohale with a sugarcane cutter, accused Pandit was assaulting Govind
with an axe, accused Angad with a dagger, and accused Vasant with a
CRI. APPEAL NO. 674 OF 2002
stick. He further stated that when he attempted to intervene and save
Govind, accused Prabhakar and Ganesh allegedly assaulted him on
the head with a stick, causing bleeding from his injuries.
43. Learned senior counsel for the appellants further submits that
PW-9 Shivaji Kohale also implicated even the accused persons who
were acquitted by the Sessions Court. During cross-examination, the
witness admitted that certain portions marked "A" and "B" in his
statement were not made by him, and he does not know why the
police recorded those portions in his statement. PW-9 also admitted
that in his 161 Cr.P.C. statement, he had stated that the deceased
Govind fell down and that accused Vasant gave him a stick blow, but
the police did not record this fact. Furthermore, he observed the
incident from a distance of approximately 100 feet.
44. Learned senior counsel submits that the testimony of PW-9 also
indicates that a large number of villagers were present at the spot
and that there was a free fight between the complainant party and
the accused party. The Sessions Court, in paragraph 91 of the
judgment, disbelieved the testimony of PW-9. The Court noted that
although the injury certificate issued by Dr. Shete indicates that PW-9
sustained fractures of the tibia, fibula, and left wrist, it is difficult to
hold that the prosecution has proved beyond reasonable doubt that
the accused persons assaulted PW-9 Shivaji Kohale and voluntarily
CRI. APPEAL NO. 674 OF 2002
caused grievous hurt to him.
45. The learned senior counsel for the appellants further assails the
testimony of PW-10 Bhagwat Kohale, who claims to be an eyewitness.
It is submitted that the testimony of PW-10 indicates that there was a
conspiracy among the members of the complainant party to go to the
spot, initiate the quarrel, and then assault the accused, which
ultimately resulted in a free fight between both parties. PW-10
deposed that he resides opposite the house of the deceased Govind
Kohale. He stated that PW-2 Pratap Kohale informed Govind, Karan,
Vishnu and Arvind that accused Angad, Pandit, Sugriv, Mohan,
Ganesh, Vasant, and Prabhakar had allegedly assaulted him.
Thereafter, the deceased Govind, along with Karan, Vishnu, Arvind,
and the witness Bhagwat, went to the spot to confront the accused
party. PW-10 further stated that accused Angad assaulted the
deceased Govind with a dagger, and accused Pandit assaulted Govind
with an axe, causing Govind to fall unconscious with his clothes
stained with blood. PW-10 also stated that the deceased Govind
assaulted him on the right foot with a sugarcane cutter, causing
bleeding, that accused Rajendra assaulted him on the left foot with a
stick, and that accused Vaijnath assaulted him on the head with a
stick, causing bleeding.
CRI. APPEAL NO. 674 OF 2002
46. Learned senior counsel further assails the testimony of PW-10
Bhagwat Kohale on several grounds. It is submitted that the witness
has attributed roles to accused persons who were acquitted by the
Sessions Court. The medical certificate at page 751 of the paper book
does not corroborate the injuries as described by him in his testimony.
It is further submitted that PW-10 admitted that he himself was an
accused in a counter case filed by accused Sugriv. When confronted
with his statement under Section 161 Cr.P.C., he admitted that he had
stated before the police that he saw accused Angad, Pandit, Sugriv,
Netaji, and Prabhakar assaulting the deceased Govind Kohale with a
dagger and an axe, but he could not explain why the police did not
record these facts in his statement. Learned senior counsel therefore
submits that PW-10 Bhagwat Kohale was not a reliable witness and
that his testimony cannot be relied upon to implicate the appellants.
47. The learned senior counsel further assails the testimony of PW-
11 Shrikant Kohale, who acted as a panch for the recovery of
weapons from accused Angad and others. PW-11 deposed that he was
present during the recovery of a dagger from the sugarcane field of
accused Angad, the recovery of an axe from the field of accused
Pandit, and other recoveries in which he was shown as the panch on
the memorandum recorded under Section 27 of the Evidence Act.
CRI. APPEAL NO. 674 OF 2002
48. Learned senior counsel submits that the testimony of PW-11 is
unreliable. He admitted that he had no knowledge as to whether
sugarcane crops were standing in the field of accused Angad and that
he did not know the owner of the land located southwards of accused
Sugriv's land. He further admitted that after the memorandum
/panchnamas were recorded, the police pasted the papers containing
his signatures on the respective weapons, indicating that the weapons
were not seized in his presence on the spot. PW-11 also admitted that
he had no knowledge as to whether the panchnama made any
reference to blood stains on the weapons. He further stated that he
was called by the police near the Aadhar Kendra and merely signed
the panchnama upon the insistence of the police, without actually
witnessing the recovery of the weapons. Learned senior counsel
submits that these admissions demonstrate that PW-11's testimony
regarding the recoveries is unreliable and cannot be relied upon to
implicate the appellants.
49. The next witness assailed by the learned senior counsel is PW-
12 Dr. Shete, who conducted the post-mortem examination of the
deceased and also examined other injured witnesses. PW-12 stated
that the cause of death of the deceased Govind Kohale was due to
multiple injuries leading to cardio-respiratory hemorrhagic shock (as
per the post-mortem report). Learned senior counsel submits that
CRI. APPEAL NO. 674 OF 2002
PW-12 also examined the following injured witnesses and recorded
the nature of their injuries.
50. The learned senior counsel further submits that PW-12 Dr.
Shete also examined accused Sugriv, Mohan, Ganesh, and Prabhakar
and recorded injuries sustained by them. It is submitted that the
nature of injuries recorded by PW-12, both of the witnesses and the
accused persons, demonstrates that the incident was a free fight in
which members of both the complainant party and the accused party
sustained injuries. Learned senior counsel further submits that the
injuries noted by PW-12, particularly those of the prosecution
witnesses, do not correspond with the versions given by them in their
testimonies. This discrepancy, it is submitted, is one of the reasons
why the learned Trial Court disbelieved the testimonies of most of the
prosecution witnesses.
51. The next witness assailed by the learned senior counsel is PW-
13, X-ray Technician Sattar Hamid, who proved the injuries sustained
by accused Nos. 3, 4, 5, and 8. PW-13 deposed that he had taken X-
rays of the aforesaid accused persons to document the injuries they
sustained during the incident, which, as submitted by the learned
senior counsel, proves the free fight involving both the complainant
party and the accused party.
CRI. APPEAL NO. 674 OF 2002
52. The next witness assailed by the learned senior counsel is PW-
14, Dr. Sanjay Khairnar, who deposed that the witness Bhagwat was
treated as an in-patient at the hospital in Solapur from 08.02.1999 to
21.02.1999. Learned senior counsel submits that the injuries treated
by PW-14 cannot be attributed to the incident that occurred on
12.12.1998. PW-14 further admitted that a fracture of a bone may
occur due to a fall or muscular contraction. He also stated that he
had not treated the patient as a medico-legal case (MLC), nor was the
patient referred to him by any other doctor. Learned senior counsel
submits that these admissions show that PW-14's testimony does not
support the prosecution case and cannot be relied upon to establish
any injuries arising from the alleged incident.
53. The most important witness assailed by the learned senior
counsel is the Investigating Officer, Popat Gaikwad. Learned senior
counsel submits that PW- 17 deposed that the first group comprising
Arvind Kohale and others came to the police station, wherein 5 to 6
persons had sustained injuries. They were immediately sent to the
Khillari Rural Hospital. Subsequently, the deceased Govind Kohale
was brought to the police station, upon which the IO registered both
the cases, conducted the investigation, and submitted the charge-
sheet. PW-17 admitted that the counter Sessions case was registered
as Sessions Case No. 9 of 2000. He further stated that the injured
CRI. APPEAL NO. 674 OF 2002
accused Prabhakar was admitted in Vivekanand Hospital for
approximately one and a half months. He recorded the statement of
injured accused Pandit and noted certain omissions therein. He also
recorded the statement of PW-4 Vishnu and highlighted certain
improvements in his testimony, wherein Vishnu had not stated earlier
that accused Angad, Pandit, and Ganesh assaulted the deceased
Govind 25 to 30 times with dangerous weapons, that accused Vasant
and Karan assaulted him with sticks, and that accused Prabhakar and
Mohan assaulted with an axe and stick, respectively.
54. Learned senior counsel further submits that the PW-17
recorded the statement of PW-5 Karan and noted improvements, such
as his claim that he went to the spot to compound the matter, and
that accused Pandit assaulted Govind with an axe on his waist, which
was not mentioned in his earlier statement.
55. The learned senior counsel further submits that the
Investigating Officer, PW-17, had recorded the statement of PW-7
Chandrakant Kohale. There are certain omissions from Chandrakant's
earlier statement, particularly regarding the claim that all the accused
were standing near the tractor with weapons in their hands. It is
submitted that these omissions and subsequent improvements in the
statement indicate discrepancies in the witness testimony, which
undermine the reliability of the prosecution case and demonstrate
CRI. APPEAL NO. 674 OF 2002
that the statements of the witnesses cannot be relied upon to
conclusively implicate the appellants.
56. The learned senior counsel further submits that the
Investigating Officer recorded the statement of PW-9 Shivaji Kohale
and noted that he had seen the incident from a distance of
approximately 100 feet.
57. The Investigating Officer also recorded the statement of PW-10
Bhagwat Kohale and noted omissions, specifically that he had seen
accused Angad, Pandit, Sugriv, Prabhakar, and Netaji assaulting the
deceased Govind Kohale with a dagger and an axe.
58. Learned senior counsel submits that the evidence of the
Investigating Officer demonstrates numerous omissions and
contradictions in the testimonies of the alleged eye-witnesses relied
upon by the prosecution. These omissions and contradictions clearly
indicate that the genesis of the incident has been suppressed by the
prosecution. The prosecution has failed to present a clear and
consistent case, particularly regarding the role of the complainant
party, who, in fact, was the aggressor. The complainant party had
gone to the spot with the intention of assaulting the accused and was
armed with dangerous weapons, as is evident from the counter-case
registered as Sessions Case No. 9 of 2000.
CRI. APPEAL NO. 674 OF 2002
59. The learned senior counsel further submits that the spot
recorded in the panchnama by the Investigating Officer indicates that
the place of occurrence was where the accused were standing after
an initial quarrel with PW-2 Pratap Kohale. PW-2 then went to bring
the deceased Govind and other witnesses, all of whom arrived at the
spot armed with weapons with the intention to assault the accused
party. It is submitted that the prosecution witnesses were
accompanying the deceased, who was the aggressor, and that when
the assault took place, several villagers also joined the melee. This
resulted in a free fight, making it extremely difficult to ascertain with
certainty who assaulted whom. Consequently, the evidence does not
establish beyond reasonable doubt the specific acts of assault by the
appellants.
60. Learned senior counsel further submits that the injuries
sustained by the accused persons have not been clearly or
satisfactorily explained by the prosecution, despite the fact that
several of the accused suffered grievous injuries. The failure of the
prosecution to account for the injuries on the persons of the accused
constitutes a serious lacuna in the case, which goes to the root of the
matter. It is submitted that this omission entitles the accused to the
benefit of doubt, as it underscores that the incident was a free fight
and that the prosecution has failed to establish beyond reasonable
CRI. APPEAL NO. 674 OF 2002
doubt the specific acts of assault attributable to the appellants.
61. Learned senior counsel further submits that the improvements
and omissions, as duly proved during the trial, render the testimonies
of the prosecution witnesses unreliable. Their evidence is
contradicted by the injury certificates and, in fact, was disbelieved by
the Trial Court itself. Moreover, the prosecution failed to examine any
independent witnesses to establish the guilt of the accused. The
evidence on record clearly indicates that several villagers were
present at the spot and observed the incident from outside; however,
none of these independent bystanders, who could have been real
eyewitnesses, were examined by the prosecution. This omission
further weakens the prosecution case and supports the defence
contention that the incident was a free fight rather than a
premeditated assault by the accused.
62. Learned senior counsel further submits that the recoveries
effected by the Investigating Officer are also defective. The pancha to
the memorandum made material admissions that strike at the root of
the prosecution case, rendering the alleged recoveries doubtful. Thus,
the oral testimony of the prosecution witnesses itself being weak,
ought to have been corroborated by circumstantial evidence such as
recoveries and panchanamas. However, the learned Trial Court has
itself disbelieved the recoveries under Section 27 of the Evidence Act,
CRI. APPEAL NO. 674 OF 2002
and therefore, there remains no corroborative piece of evidence to
support the oral testimony of the so-called eye-witnesses.
Consequently, the accused persons are entitled to the benefit of
doubt, and therefore, the accused cannot be convicted on such shaky
evidence, which is not even corroborated by any other circumstantial
evidence.
63. It is the submission that the real cause of the quarrel was the
excavation of earth/soil deposited due to the rehabilitation of the
village. The defence witnesses examined on behalf of the accused,
namely Chandan Tarafdar, the Project Manager at the relevant time,
categorically deposed that the entire soil was given to accused Angad
and that the company had taken murum in exchange for black cotton
soil. The defence witness Babu Kohale further deposed that the soil
was deposited by the company in his field bearing Survey No. 17, of
which he is the owner.
64. It is submitted that, on the basis of the evidence brought on
record, the defence has successfully established its case within the
realm of preponderance of probabilities. Consequently, the accused
are entitled to the benefit of doubt, having demonstrated that the
complainant party was the aggressor and not the accused party. On
these grounds, learned senior counsel submits that the judgment of
conviction is liable to be set aside.
CRI. APPEAL NO. 674 OF 2002
65. Learned senior counsel relies upon the various judgments :-
A) "Puran Singh and others Vs. State of Punjab (AIR 1975 SC
1674)
B) Piara Singh and others Vs. State of Punjab (1979 Cri.LJ. 498)
C) Jagtar Singh Vs. State of Punjab (AIR 1993 SC 970)
D) Ram Kumar and another Vs. State of Haryana (1998 Cri. LJ.
E) Narain Singh and others Vs. State of Haryana (2008 AIR SCW
2641)
F) Darshan Singh Vs. State of Punjab and another (AIR 2010 SC
1212)
G) Dr. Mohammad Khalil Chisti Vs. State of Rajasthan and others
(2013 Cri.LJ. 637)
H) State of Rajasthan Vs. Manoj Kumar (AIR 2014 SC (Suppl)
1680)
I) Bhagwan Sahai Vs. State of Rajasthan (AIR 2016 SC 2714)
J) Haryana Vs. Chandvir and others (AIR 1996 SC 3344)
K) Raghubir Singh Vs. State of Rajasthan and others (2011 DGLS
(SC) Page 691)
L) Laxmi Singh and others Vs. State of UP (AIR 1976 SC 2263)
The aforesaid judgments are relied upon by the learned Senior
Counsel for the appellants to canvass the following points for
consideration: -
• The right of self defence and also on the point that injury
sustained by the accused not explained by the prosecution is
fatal to the prosecution case. The right of private defence
can be extended to cause death or grievous hurt.
• Witnesses examined were interested and hence not reliable
• Independent witnesses though available not examined
• Not necessary to raise a specific plea regarding private
defence court can gather it from the circumstances.
• If injuries on the body of accused are minor, then may not
be fetal to prosecution case but non explanation of serious
injuries on the accused weakens the prosecution story and
probable the version of private defence
CRI. APPEAL NO. 674 OF 2002
• Injuries on the body of accused not explained by the
prosecution, Court can draw following:-
• Evidence consists of interested witnesses.
• Injuries on accused not explained and it was complainant
who went out of the house with arms.
• Two versions of the incident which are contradictory to each
other, benefit will go to accused.
• Right of private defence cannot be discarded merely on the
ground that it was not taken by accused, in their statement
under Section 313 of Cr.P.C.
• While considering the right to private defence, the Court
shall see whether the act of the accused was vindictive or
not; the intentions of the accused or whether the accused
has exceeded his right of private defence.
• Only those who exceeded the right of private defence should
be held responsible, if there was a common object to commit
murder.
• In case of free fight, accused to be convicted for their
individual liability
• Injuries from the accused not explained by the prosecution
• Cases to be decided as per the role of individual in free fight
• Non-explanation of injuries of the accused, benefit shall go
to the accused."
66. Thus, relying upon the aforesaid judgments and the
submissions made hereinbefore, the learned senior counsel submits
that the prosecution has grossly failed to bring home the guilt of the
convicted accused persons in the said crime. Taking into
consideration the law laid down by the Hon'ble Supreme Court in the
aforesaid cases, he prays that the appellants may be acquitted by
quashing and setting aside the judgment of conviction assailed in the
present appeal.
CRI. APPEAL NO. 674 OF 2002
SUBMISSIONS ON BEHALF OF THE LEARNED APP FOR
RESPONDENT STATE :-
67. As against this, the learned APP relies upon the findings by the
Sessions Court in convicting the appellants. The learned APP
vehemently opposes the appeal and points out that enough evidence
was found by the Sessions Court against the present appellants
Angad, Pandit, Sugriv, Netaji, Vasant, Prabhakar, Mohan and Ganesh,
who have formed an unlawful assembly with a common object to
commit murder of the deceased - Govind Kohale and also causing
hurt to Vishnu Kohale by means of dangerous weapons and against
accused Pandit, Sugriv, Dhanajay and Prabhakar for wrongfully
restraining Pratap Kohale. It is the submission of the learned APP that
the discrepancy in the testimony of the prosecution witness cannot be
said to be materially affecting the prosecution case and does not go
to the root of the matter. The prosecution has been successfully able
to establish the commission of murder of the deceased - Govind
Kohale by the accused Angad, Pandit, Sugriv, Netaji, Vasant,
Prabhakar, Mohan and Ganesh after taking into consideration the
reliable part of the testimony of the prosecution witnesses. The
unreliable portion of the testimony of the prosecution witnesses have
been disbelieved by the Trial Court itself. Thus, there is no error on
CRI. APPEAL NO. 674 OF 2002
the part of the learned Trial Court particularly looking to the
consistent version of the prosecution witnesses and the other
circumstantial evidence collected by the prosecution to bring home
the guilt of the commission of murder by the aforesaid accused.
68. It is the submission of the learned APP that there was motive
behind the commission of the said offence because since the year
1996, the relations between Arvind and other accused persons were
strained and nobody have made attempt to resolve the dispute and
thus, the enmity has led to the present incident of commission of
murder of deceased - Govind.
69. It is the submission of the learned APP that the complainant
party was not the aggressor and therefore no right of private defence
was available to the present accused persons. That the accused
persons have formed an unlawful assembly and was carrying deadly
weapons and when Govind asked the accused, as to why they had
assaulted Pratap, they all started attacking the deceased, thereby
leading to the death of the deceased - Govind Kohale. Taking into
consideration the evidence led by the prosecution and the defence, it
can be held that no private defence was available as Govind has not
assaulted the accused persons first and the quarrel started when
accused persons restrained Pratap from carrying soil.
70. On the point of non explanation of the injuries, the learned
CRI. APPEAL NO. 674 OF 2002
APP submits that even though the injuries on the accused is not
explained by the prosecution, does not in every case amounts to give
benefit of doubt to the accused. The separate FIR has been lodged by
accused - Sugriv against the prosecution witnesses. It cannot be said
that the prosecution version cannot be believed, when they have
brought the evidence on record that it was the accused persons who
have committed the murder of deceased - Govind. It is further
submitted by the learned APP that the prosecution witnesses were
also tried for the injury sustained on accused, in Sessions Case No. 9
of 2000, it cannot be said that the prosecution has suppressed the
injuries sustained by the accused.
71. Insofar as the case laws laid down by the learned senior
counsel in support of his submissions, it is submitted by the learned
APP that it is no doubt a settled law that the right of private defence
is available. However, in the present case, it was not available to the
accused appellants.
72. Learned APP for the State has relied upon the following
Judgments :-
A) State of Rajasthan th. Secy. Home Dept. Vs. Abdul Mannan
and Ors.
B) State of Rajasthan th. Secy. Home Dept. vs. Abdul Mannan
and Ors.; (2011) 8 SCC 65.
C) Raj Singh Vs. State of Haryana; (2015) 6 SCC 268.
D) Sat Pal Vs. State of Panjab; 1995 Supp (4) SCC 1
CRI. APPEAL NO. 674 OF 2002
E) Sikander Singh and Others Vs. State of Bihar; (2010) 7
SCC 477
F) Brij Lal vs. State of Rajasthan; (2016) 13 SCC 347.
G) Kallu @ Masih Vs. State of Madhya Pradesh; (2006) 10
SCC 313.
The aforesaid judgments are relied upon by the learned APP to
canvass the following points for consideration: -
• Intention - to commit murder kept on inflicting injuries
even after the deceased had fallen to the ground.
• Appreciation of evidence -- Contradictions,
inconsistencies, exaggerations or embellishments --
Variations in minor details of the incident are immaterial
unless they go to the root of the matter and erode the
credibility of the witness.
• Order of acquittal -- Such order can hardly be sustained
when it is based on minor contradictions in the
statements of witnesses while completely ignoring the
prosecution case as a whole, particularly when the
prosecution has proved its case beyond reasonable doubt
-- Conviction restored.
• Right of private defence not available to aggressors.
• What omissions amounts to contradictions.
• Right of private defence does not include right to launch
an offensive or aggression.
• It is not the law that prosecution obliged to explain the
injuries of the accused in each case.
• Exercise of right of private defence.
• Minor discrepancies and inconsistencies regarding the
exact place or point at which the incident took place, or
as to who landed which blow, are not sufficient to
disbelieve the evidence of injured eye-witnesses.
REASONING AND CONSIDERATION :-
73. The perusal of the testimony of Dr. Shete (PW-12) would show
CRI. APPEAL NO. 674 OF 2002
that he has stated that the cause of death of the deceased was due to
cardiorespiratory arrest and haemorrhagic shock resulting from
multiple injuries. He has further deposed in his examination-in-chief
that the antemortem injuries found on the body of the deceased
could have been caused by weapons such as a dagger, axe, sugarcane
cutter, etc. Thus, the said acts are attributed to the accused - Angad,
Pandit, Sugriv, Netaji, Ganesh, Mohan, Vasant and Karan, who were
members of an unlawful assembly, sharing the common object of
committing the murder of the deceased and intentionally, or with the
knowledge that such acts were likely to cause death, caused the
death of Govind.
74. The testimony of the aforesaid witnesses relied upon by the
prosecution, would indicate that the incident was in the nature of a
free fight. Though a specific plea of private defence was not expressly
raised by the present appellants in their statements recorded under
Section 313 of the Code, the Court is not precluded from gathering
the existence of the right of private defence from the circumstances
brought on record. The injuries sustained by the appellants-accused
on their persons lend credence to the fact that there was an assault
from the side of the complainant party as well, using dangerous
weapons. This is further corroborated by the fact that the
complainant party was also prosecuted at the instance of the accused
CRI. APPEAL NO. 674 OF 2002
persons, which culminated in Sessions Case No. 9 of 2000. The
evidence on record sufficiently establishes that the genesis of the
crime was the excavation of soil, which was objected to by the
accused persons. When Pratap was restrained from excavating the
soil at the spot, he went to the house of Govind and thereafter
returned along with other persons, to confront the accused persons
who were present at the spot and were opposing the excavation. This
sequence of events led to a mutual assault by both sides. Significantly,
the villagers who were present at the spot have not been examined by
the prosecution to establish as to which party was the aggressor. In
the absence of such independent evidence, it cannot be conclusively
held that the accused persons were the aggressors and not the
complainant party.
75. The witnesses examined by the prosecution are all interested
witnesses, being either related to the complainant party or to the
deceased Govind, and therefore their testimony cannot be safely
relied upon to base a conviction without independent corroboration.
The non-examination of any independent witness, despite the
incident involving multiple assaults on various persons from both
sides, and despite counter-allegations raised by the accused persons,
which culminated in Sessions Trial No. 9 of 2000, leaves this Court
with no credible and unimpeachable evidence to sustain the
CRI. APPEAL NO. 674 OF 2002
conviction.
76. The prosecution witnesses were having inimical terms with
accused since 1996, as could be seen from the record which shows
that earlier FIRs for bodily offences had been registered between the
same parties. Even the Trial Court has disbelieved several prosecution
witnesses in view of the contradictions emerging from their medical
certificates. Having disbelieved such witnesses on material aspects,
the Trial Court could not have selectively relied upon their testimony
merely to sustain the conviction of the accused persons. The
interested witnesses have admittedly improved their versions to suit
the prosecution case, and such improvements have been duly brought
on record by the defence and further fortified by the cross-
examination of the Investigating Officer on material particulars. The
evidence on record establishes that the dispute pertained to the
excavation of earth deposited on account of rehabilitation. The
defence has examined Chandan Tarafdar, the Project Manager, who
has deposed that the soil was given to the accused Angad and that
the company had taken murum in exchange for black cotton soil. The
defence has further examined Babu Kohale, who has stated that the
soil was deposited in Survey No. 17, of which he is the owner. It is
thus evident that the complainant party had a dispute regarding the
excavation of the soil. After Pratap was initially restrained on the date
CRI. APPEAL NO. 674 OF 2002
of the incident, the evidence sufficiently demonstrates that the
deceased Govind, along with other persons, arrived at the spot of
incident. This clearly shows that the accused persons had not gone to
the house of the deceased Govind to assault or kill him.
77. The prosecution has registered the complaint of the accused
persons, which culminated in Sessions Trial No. 9 of 2000, and
therefore it cannot be said that the prosecution failed to explain the
injuries sustained by the accused persons. However, considering that
the complainant party had itself arrived at Survey No. 17, owned by
Babu Kohale, where the accused Angad was permitted to store soil in
exchange for murum, it is evident that the prosecution has failed to
bring on record sufficient evidence to establish that the accused
persons were the aggressors.The Hon'ble Supreme Court, in Puran
Singh v. State of Punjab, AIR 1975 SC 1674, was pleased to observe
as under :-
"It is not the law that a person when called upon to face an
assault must run away to the police station and not protect
himself or when his property has been the subject-matter of
trespass and mischief he shored allow the aggressor to take
possession of the property while he should run to the public
authorities. Where there is an attribute of invasion or aggression
on the property by a person who has no right to possession, then
there is obviously no room to have recourse to the public
authorities and the accused has the undoubted right to resist the
attack and use even force if necessary. The right of private defence
of property or person, where there is real apprehension that the
aggressor might cause death or grievous hurt the victim, could
extend to the causing of death also, and it is not necessary that
CRI. APPEAL NO. 674 OF 2002
death or grievous hurt should actually be caused before the right
could be exercised. A mere reasonable apprehension is enough to
put the right of private defence into operation.
The question whether a person having a right of private defence
has used more force than is necessary would depend on the facts
and circumstances of a particular case.
The prosecution party was the aggressor in the sense that they
went armed with gun and deadly weapons on the disputed land
in possession of the accused who had grown wheat crop thereon,
with the devout object of destroying the wheat crop and taking
back possession of the land forcibly from the accused party who
were similarly armed, with the result that a mutual fight ensured
in which two of the accused received injuries and two persons of
the prosecution party died and others were injured. The
prosecution however did not explain how the accused persons
received the injuries.
Held on the facts and circumstances of the case the accused were
fully justified in causing the death of two persons from the
complainant's party and had not in any event exceeded the right
of private defence of person and property. They were therefore
protected by the right of private defence. If the prosecution did
not come out with the true version of the nature and origin of the
occurrence, they cannot blame the Court if the entire version
presented by them is rejected. In any event, the prosecution case
had not been proved beyond reasonable doubt."
78. The Honble Supreme Court in the judgment delivered in State
of Haryana v. Chandvir, AIR 1996 SC 3344, was pleased to observe as
under :-
"In criminal trial, Court has to endeavour to separate the grain
from the chaff and accept that part of the evidence which is
found to be truthful and consistent. Having made that attempt,
we find that on the facts of this case, it is very difficult to
separate the grain from the chaff. It is seen that the participation
of five of the accused is totally disbelieved by the Sessions Court
as well as the High Court. As regard the participation of the eight
accused in the commission of the crime, it is seen that witnesses
CRI. APPEAL NO. 674 OF 2002
fabricated and improved their version from stage to stage.
Therefore, it would be very difficult to place implicit reliance on
each of their evidence or cumulatively to convict accused 1 and
2. The two accused are alleged to have attacked the deceased.
Each of the injuries is not independently sufficient to cause
death. Moreover, in a case of free fight, Section 149 cannot be
applied."
79. Thus, the appellants have brought their case in the realm of
preponderance of probability to show that the injuries sustained by
the deceased Govind and the other injured persons could be the
result of the exercise of the right of private defence available to the
accused persons.
80. It would appear that most of the witnesses have materially
improved upon their statements recorded under Section 161 of the
Code of Criminal Procedure. The Sessions Court itself has noted that
some of the witnesses have exaggerated their evidence with regard to
the injuries allegedly caused by certain accused. In such
circumstances, it would be unsafe to place implicit reliance on the
testimony of these injured witnesses, even though their presence at
the scene of occurrence stands established. It is true that the maxim
falsus in uno, falsus in omnibus has no application in criminal trials.
Nevertheless, this Court has made an endeavour to separate the grain
from the chaff and to accept only that part of the evidence which
inspires confidence. However, in the present case, such an exercise
had become extremely difficult, as most of the prosecution witnesses'
CRI. APPEAL NO. 674 OF 2002
testimony have been shattered by the defence in cross-examination
due to improvements and omissions and therefore disbelieved by the
Sessions Court on material aspects. The witnesses have fabricated
and improved their versions from stage to stage, a fact which stands
corroborated by the cross-examination of the Investigating Officer.
81. The evidence regarding the recovery of weapons has been
disbelieved by the learned Trial Court. The memorandum of accused
Angad is at Exhibit 90 and the seizure of the dagger produced by him
is at Exhibit 91. The memorandum of accused Pandit is at Exhibit 92
and the seizure of the axe produced by him is at Exhibit 93. The
memorandum of accused Ganesh is at Exhibit 94 and the seizure of
the sugarcane cutter produced by him is at Exhibit 95. The
memorandum of accused Sugriv is at Exhibit 96 and the seizure of
the sugarcane cutter produced by him is at Exhibit 97. The
memorandum of accused Vaijnath is at Exhibit 140, pursuant to
which he produced a stick which was seized. The memorandum of
accused Rajendra is at Exhibit 141 and the seizure of the stick
produced by him is at Exhibit 142.
82. The aforesaid recoveries were sought to be proved through the
evidence of PW-15, Panch Witness Prabhu Dongre. However, the
learned Trial Court has itself disbelieved the said recoveries,
observing in paragraph No. 60 of the judgment that the Investigating
CRI. APPEAL NO. 674 OF 2002
Officer had not strictly followed the procedure prescribed for
recovery of weapons. It has been further observed by the learned
Trial Court that the confession memorandum do not bear the
signatures of accused Sugriv, Angad, and the other accused persons
acknowledging that they were producing the weapons. In view of
these deficiencies, the recoveries of weapons from the accused are
found to be unreliable. Thus the prosecution has failed to prove the
alleged recoveries.
83. In view thereof, it would be unsafe to accept the prosecution
case that only the convicted accused, namely accused Nos. 1 to 7 and
15, had attacked the deceased Govind in the melee. Once the Trial
Court itself has acquitted the remaining accused, and the State
appeal being dismissed by this court, it becomes difficult to hold that
accused Nos. 1 to 7 and 15 alone were responsible for committing the
murder of the deceased Govind.
84. It would be seen that the defence has sufficiently brought its
case on record within the realm of preponderance of probability, as
against the prosecution case, thereby rendering it unsafe to place
implicit reliance on the version of the prosecution witnesses. The
appellants thus, cannot be held guilty of committing murder of
deceased Govind Kohale on such uncorroborated version of the
prosecution. In such circumstances, even the charge of voluntary
CRI. APPEAL NO. 674 OF 2002
causing hurt in respect of the other injured persons is not proved.
Consequently, accused Nos. 2, 4, 6, 7 and 15 cannot be convicted for
the offence punishable under Section 324 read with Section 149 of
the IPC.
85. For the reasons stated hereinabove, it also cannot be concluded
that accused Nos. 2, 3, 8 and 15 are guilty of the offence punishable
under Section 341 read with Section 34 of the IPC, particularly when
accused Nos. 1, 4, 5, 6 and 7 have been acquitted of the same charge.
Once the charge of wrongful restraint is not proved against the
remaining accused, the conviction of the aforesaid accused under
Section 341 read with Section 34 of the IPC cannot be sustained.
86. Thus, upon a careful consideration of the entire evidence led
by the prosecution as well as by the appellants/accused, we are of the
opinion that the prosecution has failed to establish its case beyond
reasonable doubt. Hence, the following order :-
ORDER
I. The appeal is allowed.
II. The appeal stands abated against appellant Nos. 4 and 5,
namely Vasant s/o Vithal Kohale and Ganesh s/o Shankar
Mudabe, in view of the order passed by this Court dated
22.11.2017.
CRI. APPEAL NO. 674 OF 2002
III. The judgment of conviction and sentence dated 31.10.2002,
passed by the learned Additional Sessions Judge, Latur, in
Sessions Trial No. 35 of 1999 against the remaining appellants,
namely original accused Nos. 1, 2, 3, 6, 7 and 15, viz. Angad
s/o Vithal Kohale, Pandit s/o Vasant Kohale, Sugriv s/o Vithal
Kohale, Mohan s/o Limbaji Kohale, Netaji s/o Vasant Kohale
and Prabhakar s/o Vinayak Kohale, is hereby quashed and set
aside.
IV. The appellant nos. 1, 2, 3, 6, 7 and 15 are acquitted for
offence under Section 302 read with Section 149 of the Indian
Penal Code and the sentence of imprisonment for life along
with a fine of ₹1,000/-, each.
V. The appellant nos. 1, 2, 3, 6, 7 and 15 are acquitted for offence
under Sections 147 and 148 of the Indian Penal Code and the
sentence of rigorous imprisonment for three months each.
VI. The appellant nos. 2, 3, 8 and 15 are acquitted for offence
under Section 341 read with 34 of the Indian Penal Code and
the sentence of rigorous imprisonment for 15 days.
VII. The appellant nos. 2, 4, 6, 7 and 15 are acquitted for offence
under Section 324 read with Section 149 of the Indian Penal
Code and the sentence of rigorous imprisonment for six
months.
CRI. APPEAL NO. 674 OF 2002
VIII. The appellants are on bail; hence, their bail bonds stand
discharged.
( MEHROZ K. PATHAN, J. ) (SANDIPKUMAR C. MORE, J.)
