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.Jhs/ 2/49
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 Jhs/ 3/49 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 Jhs/ 4/49 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 Jhs/ 5/49 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 Jhs/ 6/49 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 Jhs/ 7/49 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 Jhs/ 8/49 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 Jhs/ 9/49 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 Jhs/ 10/49 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. Jhs/ 11/49
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 Jhs/ 12/49 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 Jhs/ 13/49 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 Jhs/ 14/49 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 Jhs/ 15/49 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 Jhs/ 16/49 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 Jhs/ 17/49 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 Jhs/ 18/49 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 Jhs/ 19/49 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.
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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 Jhs/ 21/49 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 Jhs/ 22/49 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.
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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. Jhs/ 24/49
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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 Jhs/ 25/49 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.
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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 Jhs/ 27/49 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 Jhs/ 28/49 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.
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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 Jhs/ 30/49 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, Jhs/ 31/49 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.
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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.2049
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 Jhs/ 33/49 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.
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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 Jhs/ 35/49 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 Jhs/ 36/49 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 Jhs/ 37/49 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 Jhs/ 38/49 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 Jhs/ 39/49 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 Jhs/ 40/49 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 Jhs/ 41/49 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 Jhs/ 42/49 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 Jhs/ 43/49 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' Jhs/ 44/49 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 Jhs/ 45/49 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 Jhs/ 46/49 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.Jhs/ 47/49
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.
Jhs/ 48/49
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.) Jhs/ 49/49