Full Judgment Text
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CASE NO.:
Appeal (crl.) 501 of 1999
Appeal (crl.) 324 of 2000
Appeal (crl.) 156 of 2002
Appeal (crl.) 158 of 2002
Appeal (crl.) 159 of 2002
Appeal (crl.) 161 of 2002
PETITIONER:
GANESH K. GULVE ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 21/08/2002
BENCH:
Y.K.Sabharwal & H.K. Sema.
JUDGMENT:
Y.K. Sabharwal, J.
Criminal Appeal No.501 of 1999 is a statutory appeal. It has been
filed by Ganesh K. Gulve challenging the judgment and order of the High
Court dated 25.2.1999 setting aside the judgment of acquittal passed by
the trial court in his favour. The High Court has held him guilty for offences
punishable under Sections 147, 148, 302, 307 and 452 read with Section
149 IPC and sentenced him to life imprisonment.
Criminal Appeal Nos.324 of 2000, 156, 158 and 159-161 of 2002
have been filed by accused challenging the judgment and order of the High
Court confirming their conviction and sentence imposed by the trial court.
For commission of offences punishable under Sections 147, 148,
149, 302, 307, 324, 326, 452 and 34 IPC and certain other offences, 60
accused persons were tried in the Sessions Court. The trial court
convicted 13 of them for offences punishable under Sections 147, 302
read with Section 149, Sections 149 and 307 read with Section 149 and
Section 452 read with Section 149 IPC. They are : accused No.20
Ramchandra Krishna Kamble, accused No.21 Bhawan @ Dharmaji
Krishna Kamble, accused No.22 Narhari Krishna Kamble, accused No.23
Pandurang Krishna Kamble, accused No.25 Babu Sopan Mandade,
accused No.27 Namdev Pandurang Kamble, accused No.28 Venkati
Govind Yenjane, accused No.36 Madan Kerba Jagtap, accused No.44
Rukhmaji Babarao Jagtap, accused No.49 Shivaji Kerba Jagtap, accused
No.50 Ashok Dattarao Jagtap, accused No.52 Uttam Chandrabhan Jagtap
and accused No.53 Shesherao Tukaram Kodale. Imprisonment for life
was imposed on them for offence under Section 149 read with Section 302
IPC besides payment of fine and imprisonment in case of default in
payment of fine as also varied punishments in respect of other offences.
The judgment and order of the trial court was challenged by 12 out
of 13 convicted accused by preferring criminal appeals before the High
Court. The State of Maharashtra also preferred two appeals before the
High Court one challenging the orders of acquittal passed in favour of 47
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accused by the trial court and the other for enhancement of sentence
against 13 accused who had been convicted by the trial court.
All the appeals have been disposed of by the High Court by a
common judgment and order. The High Court has confirmed the
conviction and sentence of 11 accused persons; acquitted two accused
persons, namely, accused No. 36, Madan Jagtap and accused No. 50
Ashok Dattarao Jagtap and one State appeal has been partly allowed by
setting aside the judgment and order of the trial court acquitting accused
No.24 Ganesh K. Gulve. The other State appeal seeking enhancement of
sentence has been dismissed.
The judgment and order of the High Court has been challenged by
the convicted accused except accused Nos. 27 and 28. These two have
not preferred any appeal.
The main arguments have been addressed by Shri U.R. Lalit in
Criminal Appeal No.501 of 1999. One of the contentions of the learned
counsel was that the conclusion drawn and view taken by the trial court
acquitting Ganesh K. Gulve was a reasonable and possible view which did
not call for reversal by the High Court. Counsel further contended that the
prosecution has failed to prove its case against accused No.24; there were
material contradictions in the testimony of the eye-witnesses as also the
version as deposed by the eye-witnesses is not corroborated by the
medical evidence and the trial court was, thus, justified in passing order of
acquittal.
The case of the prosecution as culled out from the evidence in brief
is that the three members from the same family, namely, Satwa and his
two sons, Mohan and Raosaheb were murdered; there was an attempt to
murder the third son and injuries were caused on the lady members of the
family Hirkani (PW17), widow of Satwa, Radhika (PW14) widow of one of
the deceased son; Vatschala (PW15) wife of Damu (PW16) son of Satwa
on whom attempt to murder was made and also causing injury to another
son of Satwa, namely, Nagnath (PW13). The report was lodged with the
Police by Gangubai (PW12) wife of Nagnath.
The incident took place on 7th September, 1991 in two parts. The
first part took place early in the morning when accused Nos. 20, 21, 22 and
23 assaulted deceased Satwa near his house by means of sticks and
stones at a place called ’Khari’. He was rescued by his son and brought to
the house of Mohan, one of his sons. Thereafter at about 7 a.m. on the
same day, all the accused persons formed unlawful assembly with a
motive to commit murder of Satwa and his sons. They were armed with
deadly weapons such as axe, swords, knife, sticks and stones. They
attacked the house of Mohan where they assaulted Satwa and his sons
Mohan, Damu and Raosaheb and also caused injuries to the other
persons of the family as earlier noticed. Satwa, Mohan and Raosaheb
died whereas Damu received serious injuries.
The prosecution examined 39 witnesses. Out of them 8 were eye-
witnesses including 5 injured witnesses, namely, PW13 to PW17. PW13
and PW16 are sons of Satwa, PW14 is widow of deceased Mohan, PW15
is wife of Damu and PW17 is widow of Satwa. Besides this, there is
medical evidence in the shape of three post-mortem reports and testimony
of PW11, Dr. Ugile. Exhibits 84, 85 and 86 are three inquest
panchanamas.
From the evidence duly appreciated by the trial court and the High
Court, it stands proved that :
1. Three persons noticed above were murdered in the incident that
took place in two parts on 7th September, 1991 and others as
noticed hereinbefore received injuries and there was attempt to
murder Damu;
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2. There was formation of unlawful assembly.
3. The common object of the unlawful assembly was to commit
aforesaid murders and other offences;
4. In furtherance of the common object, the members of the unlawful
assembly killed father and two sons, made attempt on the life of
another son and caused injuries to family members of Satwa.
The question to be determined, however, is as to who were the
members of this unlawful assembly. The trial court and thereafter the High
Court, wherever found any reasonable doubt about any accused person
not being member of the unlawful assembly gave benefit thereof to the
accused. The trial court convicted 13 out of 60 accused. The High Court
confirmed conviction of 11 and acquitted accused Nos.36 and 50. On
appreciation of evidence, the High Court found that there was positive
evidence against 17 accused out of which 11 had been convicted and
sentenced by the trial court. The conviction and sentence of the said 11
accused persons has been confirmed in the impugned judgment and
order. Regarding remaining 6, the High Court found that there is no
evidence to show actual sharing of common intention by accused Nos. 14,
Chandrashen, accused No.26, Shesherao Ramchandra Kamble, accused
No.31, Laxman and accused No.43, Devidas Tukaram Kodale. Therefore,
the order of acquittal passed by the trial court in their favour was not
disturbed for lack of evidence. As regards accused No.37, Bhanudas
Chandrabhan Jagtap, it was noticed that he died during the trial.
Regarding accused No.24, Ganesh K. Gulve, it has been held by the High
Court that all the witnesses have not only stated his presence in the mob
but have also stated the overt acts done by him at the time of the incident.
He was seen prominently in the mob that marched to the house of Mohan.
It was he and others who challenged Satwa and his sons to come out of
the house. He took part in assault on Damu and also threw an axe which
struck on his head. At his instance, the dead bodies of the deceased were
dragged upto Chawadi. On appreciation of evidence, the Court held that
there is positive evidence against accused Ganesh K. Gulve to show that
he very much shared the common object of unlawful assembly and that he
did positive acts to achieve the object. In view of the positive evidence, the
High Court found that he could not be treated differently than the other 11
accused who had been convicted on the basis of the same evidence that
was available against Ganesh K. Gulve.
Mr. U.R. Lalit, challenging the impugned judgment and order of the
High Court, contends that the High Court by adopting an erroneous
approach has reversed a well considered order of acquittal passed by the
learned Additional Sessions Judge. Reliance has been placed by the
learned counsel on Ramesh Babulal Doshi v. State of Gujarat [AIR
1996 SC 2035] and Awadhesh & Anr. v. State of Madhya Pradesh [AIR
1988 SC 1158] reiterating the principles required to be kept in view while
deciding an appeal against an order of acquittal. There cannot be any
dispute about the said principles. Mere fact that a view other than the one
taken by the trial court can be legitimately arrived at by the appellate court
on reappraisal of the evidence cannot constitute a valid and sufficient
ground to interfere with an order of acquittal unless the appellate court
comes to the conclusion that the entire approach of the trial court in
dealing with the evidence was patently illegal or the conclusions arrived at
by it were wholly untenable. The question in Criminal Appeal No.501 of
1999 is : whether the High Court while reversing the order of acquittal kept
in view or not these principles?
In order to appreciate the evidence, the Court is required to bear in
mind the set up and environment in which the crime is committed. The
level of understanding of the witnesses. The over jealousness of some of
near relations to ensure that everyone even remotely connected with the
crime be also convicted. Everyone’s different way of narration of same
facts. These are only illustrative instances. Bearing in mind these broad
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principles, the evidence is required to be appreciated to find out what part
out of the evidence represents the true and correct state of affairs. It is for
the courts to separate the grain from the chaff. That has been exactly
done. What has weighed with the High Court in reversing the order of
acquittal in the case of Ganesh K. Gulve and convicting him is that on the
basis of the same evidence, other accused had been convicted and there
was no justifiable reason for convicting other 11 accused and confirming
their conviction while at the same time upholding the order of acquittal in
the case of Ganesh K. Gulve.
The presence of Ganesh K. Gulve was deposed to by all material
witnesses. The fact that there was slight variations in the role attributed to
him was held by the High Court to be of no consequences in the facts and
circumstances of the case. In fact, he was the main person who had
instigated the mob.
The murder of Satwa and his two sons had taken place in a broad
day-light at 7 O’clock in the morning in front of many members of the family
of Satwa. His two sons and two daughters-in-law had received various
injuries. Those injuries had been fully established in the testimonies of
PW13, PW14, PW15 and PW16. The High Court was faced with a
question that when the presence of Ganesh K. Gulve as a member of the
unlawful assembly had been established as also the fact that he with
others shared common object of doing away with the deceased and
injuring others, as aforesaid, can he be acquitted as a result of some
variations in the manner of his doing positive act to achieve the said object.
The High Court rightly answered that question by ignoring the minor
variations and convicting Ganesh K. Gulve. Under the circumstances. It
cannot be said that the High Court in reversing order of acquittal did not
bear in mind the principles required to be kept in view while deciding an
appeal against an order of acquittal.
It was pointed out by the learned counsel that despite the fact that in
the First Information Report, it was stated that Ganesh K. Gulve had stone
in his hand, some witnesses said that he had axe with him which he threw
on Satwa from back side and some even stated that he had stick. It may
be noticed that FIR was lodged on the statement of Gangubai (PW12).
Saving herself from the incident, she went to the Police Station and
reported the matter. She was pregnant at that stage. Her husband
Nagnath (PW13) who had received injuries also reached the police station
at that stage. It is evident that due to what had happened, family members
must have been perplexed. In any case, the trial Court as well as the High
Court did not place reliance on the FIR. In the factual scenario of the case
in hand, the question whether he was holding stone, axe or stick would
depend upon what time he is seen by the concerned witness and this
aspect was not of any significance. Likewise, it was also of no significance
whether Satwa had injury on his nose or not.
It was pointed out by Mr. Lalit that the trial court had also taken into
consideration the absence of injuries on the back in medical evidence
showing the dragging of the three bodies. In this regard, Dr. Ugile (PW11)
deposed that in the post-mortem reports, he had only mentioned major
injuries and not minor injuries like abrasions and bruises. In the three
inquest panchanamas prepared soon after the murder, which
panchanamas have been admitted by the defence under Section 294 of
the Code of Criminal Procedure, mention has been made of the bruises
which were noticed on the back of all the three deceased persons. These
panchanamas were prepared between 9 a.m. to 11.30 a.m. The incident
had taken place at 7 a.m. In this view, the theory of dragging of the bodies
could not be discarded only on account of non-mention of injuries on the
back of the bodies in the post-mortem reports and on that basis acquitting
Ganesh K. Gulve by applying any reasonable hypothesis.
The High Court, on due scrutiny and analyses of the evidence, came
to the conclusion that the case of Ganesh K. Gulve cannot be meted out a
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different treatment than others who had been convicted. In the impugned
judgment and order, the High Court dealt with all the aspects which were
taken into consideration by the trial court for acquitting Ganesh K. Gulve.
The trial court had clearly adopted an erroneous approach which was set
right by the High Court. PW14, PW15, PW16 and PW17 were all present
in the house of Mohan when the mob marched towards his house. Some
of mob members opened the door of the said house by hitting it with big
stones. The aforesaid witnesses have deposed about actual assault on
Satwa, Mohan and Damu. Ganesh K. Gulve was one of these who
challenged the deceased and Damu to come out of the house. It has also
been established that Damu came out and expressed his apology and
requested Ganesh K. Gulve not to assault anybody. It is natural on the
facts of case that there would be some variance in the evidence of these
four witnesses regarding number of the accused participating in the
assault. Insofar as Ganesh K. Gulve is concerned, there is, however,
unanimity in the depositions. The assault by Ganesh K. Gulve on Damu
has been fully established. The conclusion of the High Court in respect of
Ganesh K. Gulve, as contained in para 53 of its judgment, cannot be
faulted. The High Court said :
"As regards the accused No.24 Ganesh, all the
witnesses have not only stated his presence in the
mob but, have also stated the overt acts done by him
at the time of the incident. He was seen prominently in
the mob which marched to the house of Mohan. The
evidence further shows that it was he and others who
challenged Satwa and his sons to come out of the
house. There is also specific evidence against the
accused No.24 Ganesh to show that he took part in the
assault on Damodar P.W.16. Nagnath P.W.13 has
stated that when he made his escape through the hole
in the wall he was chased by accused no.24 Ganesh
and others and that, accused No.24 Ganesh threw an
axe which struck him on his head. In addition, there is
evidence of Hirkani P.W. 17 to show that accused
No.24 Ganesh was one of the assailants of her
husband Satwa and that, he gave an axe blow. It is
also in the evidence that at the instance of accused
No.24 Ganesh and others, the dead bodies of the
deceased were dragged upto Chawadi. In short, there
is positive evidence available against the accused
No.24 Ganesh to show that he very much shared the
common object of the unlawful assembly and that, he
did positive acts to achieve the object. However, the
trial Court has acquitted him. We do not find in the trial
Court’s judgment any specific discussion with regard to
the evidence available against accused No.24 Ganesh.
The trial Court has not given any particular reason for
acquitting him. In our opinion, the trial Court has lost
sight of the positive evidence available against the
accused No.24 Ganesh. There is absolutely no reason
for not accepting that evidence against the accused
No.24 Ganesh. In paragraph 85 of its judgment, the
learned Judge has observed that the involvement of
accused No.24 Ganesh "as the striker of a solitary
blow on the nose portion of Satwa", is not corroborated
by medical evidence. It cannot, however, be ignored
that Satwa had sustained a C.L.W. of 1 " x 2" x 1 "
on his forehead. Hirkani P.W. 17 may not be correct in
stating as to where on the person of Satwa the axe
blow given by accused No.24 Ganesh had landed. It
cannot be ignored that a blow aimed at the nose may
hit on the forehead due to the movements or change of
position made by the victim. We, therefore, think that
the trial Court has failed to consider the positive
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evidence against the accused No.24 Ganesh."
We are unable to accept the contention that the view taken by the
trial court in the case of Ganesh K. Gulve was a possible view that was
erroneously reversed by the High Court.
Learned counsel appearing for the appellants in Criminal Appeal
Nos.156, 158 and 159-161 of 2002 contended that the prosecution had
failed to prove the motive of the crime; the FIR was ante-timed and there
was non-compliance of the provision of Section 157 of the Code of
Criminal Procedure in forwarding the FIR to the Magistrate. There is no
substance in any of the contentions. In the presence of the eye-
witnesses including injured eye-witnesses, the question of the proof of the
motive loses its significance. The High Court has, however, duly taken
into consideration the motive which was caste hostility and prosperity of
the family of the deceased persons and the securing of position by the
family member of Satwa in Gram Panchayat. Regarding the FIR, as
already noticed, both the trial Court and the High Court have not placed
reliance thereupon and the matter has been rightly and adequately dealt
with by the trial court and High Court. There is no merit in any of the
contentions urged on behalf of the appellants.
In Criminal Appeal No.324 of 2000, the contention urged was that
the High Court has not properly considered the case against the appellant
and, therefore, the criminal appeal (Criminal Appeal No.79/94) filed by
him in the High Court deserved to be allowed. We do not agree. The trial
court and the High Court, on appreciation of the evidence, have rightly
found the case against accused No.53 being the appellant of this appeal
as fully established. There is no merit in his appeal as well.
For the aforesaid reasons, we find no merit in any of the appeals.
All the appeals are accordingly dismissed.