Dismissed

The State of Maharashtra v. Govind Shankarrao Kohale and Ors.

Bombay HC14 Dec 2017APEAL/22/2000

Case brief

AI extract

What is this about?

The State challenged acquittal on charges of murder, unlawful assembly, rioting and house trespass. The Court held that the offences were not proved beyond reasonable doubt and that the acquittal represented a reasonable and possible view. It dismissed the appeal and cancelled the surviving accused's bail bonds.

What did the court decide?

Bail bonds of accused Nos.2 to 8 cancelled.

The State of Maharashtra Vs Govind Shankarrao… — Murder and Culpable Homicide | Bombay HC (2017)

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crap22.00

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 22 OF 2000

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`The`	`State of Maharashtra`	`..`	`Appellant`
`Thro` `Dist`	`ugh – Killari Police Station,` `. Latur.`		`[original` `complainant]`
	`Versus`
`1.`	`Govind Shankarrao Kohale` `Age. 39 years` `[Appeal abated against respondent` `No.1 as per order dated 02.12.1999]`	`..`	`Respondents` `[original` `accused]`
`2.`	`Babruwahan Shankarrao Kohale` `Age. 55 years`
`3.`	`Arvind Keshavrao Mathe` `Age. 35 years`
`4.`	`Arvind Shankarrao Kohale` `Age. 35 years`
`5.`	`Shankar Narsing Kohale` `Age. 51 years`
`6.`	`Pratap Babruwahan Kohale` `Age. 25 years`
`7.`	`Karan Shankarrao Kohale` `Age. 23 years`
`8.`	`Vikram Shankarrao Kohale` `Age. 27 years`
	`All R/o. Haregaon,` `Tq. Ausa, Dist. Latur.`

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Mr.R.V. Dasalkar, A.P.P. for the appellant/State.
Appeal abated against respondent No.1.

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Mr.V.R. Dhorde, Advocate [appointed] for respondent Nos.
2 to 8.

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CORAM : S.S.SHINDE &

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S.M.GAVHANE,JJ.

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 RESERVED ON :04.07.2017
 PRONOUNCED ON :14.12.2017

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JUDGMENT [PER : S.M. GAVHANE,J.] :-

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.This appeal is filed by the appellant-State

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against acquittal of the respondents/original accused of

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the offences punishable under sections 143, 147, 148,
452, 302 read with section 149 of the Indian Penal Code
[for short “the IPC”] vide judgment and order dated
16.01.1998 in Sessions Case No.47 of 1997 passed by the
Additional Sessions Judge, Latur.

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2.During pendency of the appeal, respondent No.1/
original accused No.1-Govind died. Hence, the appeal is
abated against him vide order dated 02.12.1999 in

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Criminal Application No. 1570 of 1998.

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3.Case of the prosecution, in brief, is as

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under :-

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a]Complainant Pandit (PW-1) is resident of village
Haregaon, Tal. Ausa, Dist. Latur. The deceased Vinayak,
Angad and Sugriv are uncles of the complainant. His
Uncle Angad and accused No.1 Govind were leaders of the
rival political groups of village Haregaon. The groups
of Angad and Govind were on inimical terms from 1989
Grampanchayat elections. There were cases and counter-
cases against each other and most of them have been
compromised. At the relevant time of incident dated
21.08.1996, election of a co-operative society was
declared and it was scheduled to be held on 18.09.1996.
The prosecution case is that the rival groups were

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contesting the election of society.

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b]A meeting for making arrangements of election

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campaign was called in the office of the society by Angad

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on 21st of August, 1996. The meeting was attended by
deceased Vinayak, Angad, complainant Pandit and some
other persons. Vinayak was present in the meeting till

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10=30 at night. He, thereafter, proceeded towards his
house, since he was feeling asleep. Some time thereafter

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some other persons left the office of society leaving

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behind them Pandit, Angad, Vaijinath and Laxman. These
four persons were chatting in the office of the society
till 11.45 p.m. At about 11.45 p.m., Pandit left the
office of society for returning to bed towards his house.

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After leaving the office of society, he eased his bladder
and proceeded towards his house. While he was at a
distance of about 20 paces from the house of uncle
Vinayak, he heard noise of foot steps behind him. He,
thereafter, turned around and noticed that his uncle had
slept in the veranda in front of his house and at that

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place electronic bulb was burning. He had noticed that

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the legs of his uncle Vinayak were held by accused No.8-

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Vikram Shankar Kohale and accused No.7-Karan Shankar

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Kohale, accused No.5-Shankar Kohale and accused No.2-
Babruwahan Kohale had held his hands, accused No.4-Arvind
Shankar Kohale and accused No.6-Pratap Shankar Kohale had
latched the door of his house from outside and they were
standing in the veranda just in front of the door.
Accused No.3-Arvind Keshav Mathe was holding a big stone
in his hand and he was standing near the head of deceased
Vinayak. The complainant-Pandit noticed that stone was
handed over to accused Govind by accused Arvind Mathe and
then accused Govind inflicted blow of that stone on the
head of Vinayak. After noticing this incident, Pandit

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raised hue and cry. After hearing his clamor,
prosecution witnesses Ganesh Mudbe and Angad Kohale
hurriedly arrived at that spot from the office of the
society. Pandit then enquired with Vinayak as to what
had happened. He was told by Vinayak that he has been

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betrayed by Govind and others. Accused Govind and his
associates had already started fleeing from the spot of
incident. They were chased by Pandit. Accused Govind

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was accosted by him, however, he gave a jolt to Pandit,

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rescued himself from his clutches and then fled from the
spot. By then Ganesh and Angad had also arrived at the
spot of the incident. All of them rendered first aid to
Vinayak. Pandit procured a jeep and reached Vinayak in
the Vivekanand Hospital at Latur, at about 2=00 a.m.
Vinayak was given treatment in the hospital. While he was

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under treatment of the doctor, he succumbed to the
injuries at about 4=00 a.m. After Vinayak was declared
dead by the doctors, Pandit immediately returned to
Killari in a jeep and lodged a complaint about the
incident with the police. PSI Ingewad, who was then
holding the charge, registered Crime No.85 of 1996 under
sections 143, 147, 148, 149, 452, 302 of the IPC, took
further investigation in his charge and immediately
proceeded to Latur, since the dead body was lying in the
Vivekanand Hospital.

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c]The inquest panchanama was drawn, dead body was

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sent to Civil Hospital for performing autopsy. A police

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constable was retained along with dead body. PSI Ingewad
then returned to Haregaon for further investigation into
the crime. It is stated that scene of offence Panchanama
was drawn by him. At the time of drawing scene of
offence Panchanama, a quilt, a carpet, a pillow with
pillow cover, a stone, all stained with blood have been
seized by him along with a pair of chappal, from the spot
of incident.

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d]When the investigation was in progress, the dead
body was brought to Haregaon. Clothes on the person of
the deceased were produced by a police constable, who was
retained along with dead body. The clothes produced by
him were seized by drawing a panchanama of seizure.
Statements of material witnesses have been reduced into
writing. The accused were arrested.

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e]After completion of investigation, charge-sheet
was filed by the Investigating Officer in the Court of
Judicial Magistrate, FC, Ausa., who then committed the

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case to the Sessions Court, Latur as the offence under
section 302 of the IPC was exclusively triable by the
Court of Sessions, which was allotted to the Additional
Sessions Judge, Latur.

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4.Charge was framed against the accused for the
offences punishable under sections 143, 147, 148, and

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under sections 452 and 302 read with section 149 of the
IPC, to which they pleaded not guilty and claimed to be
tried. Their defence is denial. So also, their defence
as it appears from the trend of cross-examination of the
material prosecution witnesses and written say of accused
No.1 is that there used to be elections of Grampanchayat

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and society in their village and there used to be one

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panel of accused No.1. In September, 1996, there was
election of society and there was one panel of accused
No.1 and another panel was of Angad Kohale. In 1996 he
(accused No.1) was Deputy Sarpanch of Grampanchayat and
panel of Angad was defeated. On account of election, his
relation with Angad and his associates were not good. In

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the mid-night between 21.08.1996 and 22.08.1996 he

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(accused No.1) – Govind (now deceased) had slept in the
office of Grampanchayat along with Namdeo Kohale, Vishnu
Kohale and Harishchandra Kohale, because Shalubai –
sister of accused No.1 had expired prior to 3-4 days and

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cremation was made in the village and there were guests
in his house. All of them heard clamor from the house of

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Angad Kolahe. In order to ascertain as to what had
happened, all of them had been to the house of Angad.
Somebody had assaulted deceased Vinayak. When accused
No.1-Govind and other had reached at the spot and asked

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people in crowd what had happened, at that time

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complainant Pandit (PW-1), Sugriv Kohale, Angad and

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Vasant came to accused No.1-Govind and assaulted him

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saying that they are responsible to assault Vinayak. In

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the said incident accused No.1–Govind sustained injuries.

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He was treated by Doctor. Accused No.1 had been to

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Killari Police Station at about 4o clock in the morning
of 22.08.1996 to report the said incident. His complaint

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was registered by police, however, cognizance of the same

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was not taken. Behaviour of deceased was not good and

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therefore some people in village were suspecting his
character. Deceased had no concern or enmity with accused
No.1. Accused No.8 Vikram has taken defence of alibi as

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appears from cross-examination that he had been to

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village Borgaon (Nakuleshwar) for attending a meeting on
21.08.1996, called by Tahsildar, Ausa for taking review

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of progress of work of rehabilitation of earthquake
affected persons. On that day, there was heavy rain.
Therefore, he could not return to Haregaon in the night
and he halted at Borgaon (Nakuleshwar) and returned to
Haregaon only on next day morning i.e. on 22.08.1996.

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The accused have further contended that complainant –
Pandit (PW-1), who is advocate has concocted this
prosecution only with a view to give counter to the
complaint of accused No.1 – Govind.

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5.The accused have examined two witnesses

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Harishchandra Kohale (DW-1) and Vijay Aounde (DW-2) in
defence.

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6.The prosecution has examined in all seven

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witnesses and relied upon the panchanamas and post mortem
report referred to above. Considering the evidence
adduced by the prosecution, the Trial Court has held that

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death of the deceased is homicidal and that the
prosecution has failed to prove the offences against the
accused with which they were charged and accordingly
acquitted all the accused by the impugned judgment and
order dated 16.01.1998. Therefore, this appeal by the
appellant/ State against the accused on several grounds
mentioned in the memorandum of appeal, which has been
abated against accused No.1-Govind as said earlier.

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7.We have heard learned APP for the appellant-

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State and learned advocate appointed to represent the
accused. Learned APP submits that, there is direct
evidence of eye witnesses PWs1,3 and 4. Said evidence is
corroborated by medical evidence of Dr.Raibhoge (PW-2),
and post mortem report Exh.28 issued by the said doctor.

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Therefore, the Trial Court ought to have held that the
prosecution has proved the offences punishable under
sections 452 and 302 read with section 149 and under
sections 143, 147 and 148 of the IPC against the accused.
It is further submitted that the impugned judgment and

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order be quashed and set aside, and the accused be
convicted for the aforesaid offences by allowing the
appeal.

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8.On the other hand, learned Advocate for the

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respondents/accused Nos.2 to 8 submits that there is no
consistency in the evidence of alleged eye witnesses PWs
1,3 and 4. Said eye witnesses are related witnesses.
Therefore, the Trial Court has rightly disbelieved the
evidence of said witnesses and held that, the prosecution
has failed to prove offences against the accused with
which they were charged and acquitted them of the said
offences by the impugned judgment and order. Learned
Advocate further submits that the view taken by the Trial
Court is reasonable and possible view, and it is not the

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case that there is error in appreciation of evidence by

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the Trial Court, and therefore, there is no ground to
interfere with the impugned judgment and order, and as
such he claimed to dismiss the appeal.

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9.In support of his aforesaid submissions, learned
Counsel for the respondents/accused has relied upon the
ratio laid down in the case of Golbar Hussain & Ors. Vs.

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State of Assam & Anr., (2015) 11 SCC 242 and invites our
specific attention to para 9 to 12 of the said judgment.

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.The Apex Court in para 9 to 12 has held as

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under:-

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“9.In our view, the above mentioned are certain
cardinal rules to be kept in mind in appeals
against acquittal. In our view the Trial Court has
given a reasoned decision after careful and
thorough analysis of the evidence produced by the
parties. The Trial Court also had the advantage of
looking at the demeanor of the witnesses, and was
correct in granting the benefit of doubt to the
accused and acquitting them. The High Court erred
in presuming a version against the accused as the
view which is favourable to the accused should be
taken in cases where two views are probable.

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10.The Second issue for consideration is the

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testimonies of PW-4 and PW-5 in absence of any
corroboration from any independent witness. PW-4
and PW-5 are related witnesses as they are the
brothers of the deceased Hasen Ali. There is no bar
on the admissibility of a statement by related
witnesses supporting the prosecution case, but it
should stand the test of being credible, reliable,
trustworthy, admissible in accordance with law and
corroborated by other witnesses or documentary
evidence of the prosecution. This Court has held in
Manga alias Man Singh v. State of Uttarakhand,
(2013) 7 SCC 629, that it is the quality of the
witness that matters and not the quantity, when the
related witness was examined and found credible. In
such a case non-examination of an independent
witness would not be fatal to the prosecution case.

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11.In the present case, however, the prosecution
witnesses PW-4 and PW-5, contradict each other, and
their statements are not corroborated by any
independent witness in spite of the incident
happening in the market place, with shops on both
sides of the road. Therefore, in our view, as the
testimonies of PW-4 and PW-5 are not completely
reliable, this is a fit case where corroboration by
an independent witness was required. The case of
the prosecution also weakens on the ground that the
only independent witness PW-8 turned hostile. A
similar situation arose in Shyamal Saha and Anr. v.
State of West Bengal, (2014) 12 SCC 321, where the
only independent witness turned hostile. This Court
decided to affirm the acquittal and granted benefit
of doubt to the accused considering the factual
background and circumstances involved in the case.

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12. Therefore, in the light of the above
conclusions on the issues for consideration, the
view taken by the Trial Court was reasonable and
probable on the facts of the present case. We are,
therefore, of the opinion that the High Court
should not have set aside the acquittal of the
appellants.”

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10.We have carefully considered the submissions
made by the learned APP and learned advocate appearing
for the accused. With their assistance, we have perused
the evidence adduced by the prosecution and the defence.
So also, we have perused the impugned judgment and order.

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11.Since this is an appeal against acquittal, it is
necessary to refer the ratio laid down by the Apex Court
in the case of Murlidhar alias Gidda and another Vs State
of Karnataka(2014) 5 SCC 730, wherein in para No.12 the
Apex Court has held thus:

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"12.The approach of the appellate Court in
the appeal against acquittal has been dealt with
by this Court in Tulshiram Kanu Vs State, AIR
1954 SC 1, Madan Mohan Singh Vs State of U.P.,
AIR 1954 SC 637, Atley Vs State of U.P., AIR
1955 SC 807, Aher Raja Khima Vs State of
Saurashtra, AIR 1956 SC 217, Balbir Singh Vs
State of Punjab, AIR 1957 SC 216, M.G. Agrawal
Vs State of Maharashtra, AIR 1963 SC 200, Noor
Khan Vs State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs State of Bihar, (1970) 2 SCC
450, Shivaji Sahabrao Bobade Vs State of
Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs

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State of Bihar, (1973) 2 SCC 424, Khem Karan Vs
State of U.P., (1974) 4 SCC 603, Bisan Singh Vs
State of Punjab, (1974) 3 SCC 288, Umedbhai
Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228,
K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC
355, Tota Singh Vs State of Punjab, (1987) 2 SCC
529, Ram Kumar Vs State of Haryana, 1995 Supp
(1) SCC 248, Madan Lal Vs. State of J & K,
(1997) 7 SCC 677, Sambasivan Vs State of Kerala,
(1998) 5 SCC 412, Bhagwan Singh Vs State of
M.P., (2002) 4 SCC 85, Harijana Thirupala Vs
Public Prosecutor, High Court of A.P., (2002) 6
SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003)
1 SCC 1, State of Karnataka Vs K. Gopalkrishna,
(2005) 9 SCC 291, State of Goa Vs Sanjay
Thakran, (2007) 3 SCC 755 and Chandrappa,
Chandrappa Vs State of Karnataka, (2007) 4 SCC
415.It is not necessary to deal with these
cases individually. Suffice it to say that this
Court has consistently held that in dealing with
appeals against acquittal, the appellate Court
must bear in mind the following : (i) There is
presumption of innocence in favour of an accused
person and such presumption is strengthened by
the order of acquittal passed in his favour by
the trial Court, (ii) The accused person is
entitled to the benefit of reasonable doubt when
it deals with the merit of the appeal against
acquittal, (iii) Though, the power of the
appellate Court in considering the appeals
against acquittal are as extensive as its powers
in appeals against convictions but the appellate
Court is generally loath in disturbing the
findings of fact recorded by the trial Court. It
is so because the trial Court had an advantage
of seeing the demeanor of the witnesses. If the
trial Court takes a reasonable view of the facts
of the case, interference by the appellate Court
with the judgment of acquittal is not justified.

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Unless, the conclusions reached by the trial
Court are palpably wrong or based on erroneous
view of the law or if such conclusions are
allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of
the appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re-
appreciation and re-evaluation of the evidence
is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate Court in the
judgment of the trial Court."

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12.Case of the prosecution is that death of the
deceased is homicidal. The accused have in-fact not
disputed the same. The evidence of Dr.Raibhoge (PW-2)
shows that on 22.08.1996 at about 1=00 p.m. he started
post-mortem examination on the dead body of deceased
Vinayak and he had noticed following injuries :-

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1.Stitched wound over left side of forehead;
transverse in direction about 7 cm in length.

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2.A switched wound over left parietal region
of scalp; transverse in direction; about 2 cm in
length.

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3.On palpation and internal examination,
noticed fracture of left parietal region of
skull; star shaped extending upto right parietal
and occipital region of skull.

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.According to Dr. Raibhoge, above all injuries

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were ante-mortem. He stated that he also noticed that

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brain was congested and was having multiple laceration of
left parietal lobe. There was evidence of intra cervical

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hemorrhage. Accordingly, he prepared and issued post

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mortem notes (Exh.28). Further, he stated that the
injuries noticed were grievous in nature and in his
opinion the cause of death of the deceased was head
injury due to fracture of left parietal bone of skull.

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His evidence about noticing injuries on the person of the

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deceased by him and the cause of death has gone
unchallenged during his cross-examination. The post

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mortem notes Exh.28 also show the cause of death as

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deposed by Dr.Raibhoge. There was no suggestion to the

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said Doctor on behalf of accused that injury No.3-

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fracture of left parietal bone of skull which resulted

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into death of the deceased was accidental. Therefore, on

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the basis of above medical evidence, we hold that the
prosecution has proved that death of the deceased is
homicidal. The Trial Court has also rightly held so by
answering point No.1 in this respect in the affirmative.

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13.Now, it is to be seen whether the accused are
responsible for death of deceased. To attract offences
under sections 143, 147 and 148 as well as offences under
sections 452 and 302 read with section 149 of the IPC,
the prosecution has to establish that there was unlawful
assembly of five or more persons and the accused were
members of said assembly. That common object of said
assembly was to assault deceased Vinayak, accused members
of said assembly were armed with deadly weapons and as
such they committed house trespass by entering veranda of

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the house of the deceased and in prosecution of common
object referred to above of said unlawful assembly,
accused caused death of the deceased. To prove these
facts, the prosecution has mainly relied upon evidence of
eye witnesses PWs 1,3 and 4.

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14.Now coming to the evidence of above eye

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witnesses, the evidence of PW-1 Pandit Kohale, who is
admittedly nephew of the deceased and an advocate, has
stated that he has three uncles, namely, Vinayak
(deceased), Angad and Sugriv. They all are residing
separately. There is a road which goes East-West side in

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direction in front of his house. The house of the
deceased situates on the Southern side of the said road.
On the Northern side of the said road, there is house of
Angad. Width of the said road is 15 ft. The distance
between his house and the house of the deceased is
approx. 45 ft. and that there was construction between

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these two houses at the time of incident.

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15. As regards relationship of the accused interse, PW-1 Pandit has stated that an accused Nos.1,4,7 and 8

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are brothers and accused No.5 is their father. Accused
No.2 is their uncle. Accused No.6 is their cousin.

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Accused No.3-Arvind is friend of accused No.1. Accused

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No.5 is father of accused Nos.1. Except accused No.3,
all the accused were residing in a joint family and at
that time accused No.1-Govind was holding the office of
Deputy Surpanch of village Haregaon, and accused No.2 was
member of said Grampanchayat. PW-1 further stated that
his uncle Angad was Chairman of the co-operative society.
There were two political parties in their village; one

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led by accused No.1 Govind and another led by his uncle-
Angad. Said parties were in existence since 1989
Grampanchayat election. Further, he stated that there
were counter cases of each group and said cases were
compromised. He stated that in the month of August,
1996, election of Co-operative Society was declared and
nomination forms of said election were submitted on
09.08.1996. The date of said election was 18.09.1996.

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16.As regards the incident, PW-1 has stated that

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deceased Vinayak was murdered on 21.08.1996 at about
11.45 night. On 21.08.1996 he (witness) was proceeding
towards his home after easing to return to bed. While he

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was proceeding towards his house, he heard noise of foot

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steps behind him. Immediately, he turned back and saw
that his uncle Vinayak was present in his house. In the
light of electric bulb he noticed that there were eight
persons present around him and Vikram (accused No.8) and
Karan (accused No.7) had held legs of his uncle-Vinayak.
Shankar (accused No.5) and Babruwahan (accused No.2) had

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held his hands. He stated that he had noticed that
Arvind (accused No.3) and Pratap (accused No.6) were
present in front of door of his house. Latch of the door
was closed. He stated that accused Arvind Mathe (accused
No.3) was standing near hands of Vinayak with a stone in

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his hand. Arvind then handed over the stone to Govind
(accused No.1). Govind then inflicted blow of stone on
the head of Vinayak. He deposed that he started raising

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hue and cry and then started running towards them. All of them fled away from that spot. He asked Vinayak, what had happened? He told him that Govind has betrayed him [ xksfoanus ek>k ?kkr dsyk ]. While he was raising hue and cry, two persons, namely, Ganesh (PW-2) and Angad had arrived at

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the spot. Vinayak became unconscious. He stated that he
started chasing accused. He held accused Govind. He
gave a jolt to him and rescued himself and then fled
away. Then he returned to Vinayak and noticed that
Vinayak had sustained injuries to his head. He managed

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to procure a jeep for reaching Vinayak in the hospital.
They left Haregaon at about 12=00 mid night and reached
Vivekanand Hospital at Latur at 02=00 a.m. Vinayak was
admitted in the hospital, thereafter he died at about
4=00 a.m. Then he returned to Killari by a jeep at about
05=00 a.m. and lodged complaint Exh.24. He identified
the accused present before the Court, and stated that
they are from his village, and also from his brotherhood.

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17.In the cross-examination PW-1 admitted that,

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houses in the village are situated on both sides of the
road and are facing towards road. His house is
constructed in two parts. One is old and another is newly
constructed portion. His house situate in the North-West

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corner at the square of East-West and South-North roads.

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He admitted that there is veranda in front of house of
Vinayak. The height of said veranda is approximately
1 ft. from the ground level. He denied the suggestion
that, walls approximately 4-5 feet in height, and are
constructed on the Eastern and Western side of the said
veranda. He stated that width of the veranda is 38 inch
and its length is approximately 8-10 ft. He stated that
the deceased has been murdered in the said Veranda, while
he was asleep. He denied the suggestion that, veranda of
the house of the deceased is not visible from the East-
West road, and that East-West road is 30 ft in width. He
stated that approximately 10-12 persons including himself

¶138

were present in the tin shed of the society, and were
discussing about the election campaign. He admitted that
Vinayak was also present in the tin shed. He left the
tin shed at about 10=00 p.m. to 10=30 p.m. for going to
sleep. He stated that at about mid night he left the tin
shed and proceeded towards his house. When he was at a

¶139

distance of 20 paces he heard noise of foot steps. He
noticed 8 persons immediately after turning towards the

¶140

house of Vinayak. All of them were present in the

¶141

veranda. Nobody was facing towards him. The spot of
incident is visible from East-West road; and a man in a
sleeping position, was visible from the road. He further
deposed that, Vinayak made attempt to set himself free.
He was standing at a distance of about 20 ft. away from
the spot of an incident. He reached at the spot of
incident within two minutes. The moment he reached the
spot, all the 8 persons had fled from the spot of
incident.

¶142

.He admitted that the width of the East West road

¶143

and South North road is equal. The house of accused
situate at a distance of about 1000 ft. on the Northern

¶144

side of the road and on the same side of the road his
house is situated. The accused fled towards the Eastern
side. He started chasing the accused when they were at a
distance of about 30 ft. from the spot of incident. He
caught hold accused Govind at about 45 feet away from the

¶145

spot of incident. He kicked him at two places. However,

¶146

he stated that it is not mentioned in the complaint, that
Govind was caught hold by him. There is a door towards
Southern side of house of Vinayak. The son of Vinayak,
namely, Prabhakar had arrived at the spot of incident
after hearing hue and cry. Wife of Vinayak had also
arrived at the spot. He stated that it did not happen
that approximately 100 persons had gathered at the spot
of incident immediately after the incident. The distance
between the spot of incident and office of society is
approximately 30 ft. Ganesh and Angad reached at the
spot of incident simultaneously with him. Neither Angad
nor Ganesh attempted to catch hold any one of the
culprits. He stated that all of them attempted to
provide first aid to Vinayak. Both of them were present
when he asked Vinayak as to what had happened. He stated
that he owns a Jeep. It was stationed in front of his
house. His brother drives it.

¶147

18.Further in the cross-examination PW-1 has
admitted that they spent approximately 2 hours in

¶148

Vivekanand Hospital. They were asked history of the case

¶149

by the Doctor. Accordingly, it was noted down by the

¶150

Doctor. He had stated to the Doctor that injury has been
sustained by Vinayak because of blow of a big stone on
his head. He did not feel it necessary to mention it to

¶151

the Doctor that the injury has been caused to Vinayak by
accused No.1-Govind. He did not lodge complaint to any
police station at Latur. He admitted that Doctor from
Vivekanand Hospital informed the police that they were in
receipt of MLC and the patient was under treatment in the
hospital. He denied that police had arrived at hospital
at night. He admitted that he did not disclose to any

¶152

police authority that Vinayak has been murdered by the

¶153

accused till he was declared dead by the Doctor from
Vivekanand Hospital. He, Angad and driver of his jeep –

¶154

Pawar had been to Killari immediately after the
declaration of death of Vinayak by the Doctor from

¶155

Vivekanand Hospital. He admitted that he was told by

¶156

police that one hour before his arrival in the police

¶157

station, a complaint has been lodged by one Govind

¶158

against him and other persons. He admitted that he was
told by the Police that the complaint has been registered
in the station diary of the police station. He did not

¶159

try to obtain information about the nature and
particulars of the allegations made against him in the
complaint by Govind since it was a practice of the
accused. He stated that he was not aware as to whether

¶160

the allegation was that he, Sugriv, Angad and Vasant
Kohale had assaulted Govind. He denied that a complaint

¶161

has been lodged by him with premeditation with a view to
raise a counter to the allegations made by the accused

¶162

Govind. He admitted that he was charge-sheeted in
connection with similar offences. He has not gone through
any charge-sheet except above referred charge-sheet. He

¶163

admitted that he had not stated before police in his
complaint as well as in his supplementary statement that
Vinayak was leader in the group of Angad. He has denied

¶164

that deceased Vinayak was characterless man and some
villagers were not happy with him. He denied that Ganesh

¶165

(PW-3) is the son of cousin sister of Vinayak. He denied

¶166

that he engineered this false case with the help of his

¶167

knowledge of law, with a view to falsely implicate the
accused persons who were belonging to rival group. He
admitted that Vinayak was never Chairman of society nor
he was member of Grampanchayat. He admitted that accused

¶168

Arvind is a teacher and he was posted at Matola. He
admitted that one Shalubai who was sister of accused

¶169

Vikram had died in the village on 16.08.1996. Accused
Vikram had secured degree as Bachelor of Engineering in
1996 and he was working on the Earthquake Rehabilitation
Project for the earthquake affected persons of village
Shivaji-Birvli, Chincholi (Kajale). He denied that
accused Vikram had attended a meeting at Borgaon
(Nakuleshwar) called by the Tahsildar, Ausa for taking
review of progress of construction work and he did not
return to village Haregaon since the meeting lasted for
late hours and it was raining on that day. He denied
that the accused are not in any way concerned with the
incident and that they are falsely implicated in this

¶170

case by taking undue advantage of death of Vinayak. He

¶171

stated that Article No.17–stone showed to him is the same

¶172

stone inflicted by accused Govind on the head of Vinayak.

¶173

19.From the evidence of PW-1 it appears that

¶174

according to him, he saw the incident from a distance of
20 ft. and thereafter he reached to the spot of incident
within two minutes and the moment he reached to the spot,

¶175

all 8 persons have fled away from the spot of incident
and that when he had seen said persons they were not
facing towards him. Considering the said evidence and the
time of incident i.e. at about 11=45 p.m. in the night,

¶176

his evidence is not sufficient to infer that it was
possible for him to identify all accused from a distance
of 20 ft. in the night from their backside. Another

¶177

aspect to be noted is that this witness, Angad and
Prabhakar and others had brought deceased Vinayak to
Latur in the Vivekanand Hospital in the jeep at about

¶178

02=00 a.m. and then Vinayak died at 4o clock in the
hospital. Admittedly, this witness neither disclosed to

¶179

Doctors in the said hospital nor to the police in the

¶180

hospital or police of Latur Police Station that the
deceased sustained head injury because of blow of a big
stone on his head by accused No.1. In-fact, he should

¶181

have disclosed the same both to the Doctor in the

¶182

hospital and police. He admits that the Doctor from
Vivekanand Hospital informed police that they were in
receipt of medico legal case and patient was under
treatment in the hospital. But no document in this
respect is produced on record by the Investigating
Officer to show that really such information was given to

¶183

the police by Doctors of Vivekanand Hospital and in the
said information it was disclosed that the deceased was

¶184

assaulted by accused No.1–Govind by stone. Moreover, as
referred earlier, PW-1 admits that he did not disclose to

¶185

any police authority till the deceased was declared dead

¶186

by the Doctors from Vivekanand Hospital that deceased
Vinayak has been murdered by the accused. This silence

¶187

on the part of PW-1 creates doubt whether really he has
seen the incident. Another aspect to be noted is that

¶188

PW-1 admits that they had spent approximately 2 hours in

¶189

Vivekanand Hospital. They were asked about history of

¶190

the case by the Doctor and it was noted down by the
Doctor. According to him, he had stated to the Doctor
that Vinayak sustained injury due to blow of a big stone
on his head. But it appears that he did not state to the

¶191

Doctors that all accused or accused No.1-Govind are/is
responsible to the said injury. The evidence that he

¶192

asked Vinayak as to what had happened, he told him that Govind has betrayed him [ xksfoanus ek>k ?kkr dsyk ] shows that he had not seen the incident of actual assaulting the deceased. Therefore, when as admitted by PW-1 that before he lodged complaint in Killari Police Station against the accused,

¶193

complaint was lodged against him and others by accused
No.1-Govind of assaulting the said accused and as it

¶194

appears that he is accused in one charge-sheet filed by
police on 29.11.1996 alleging that Govind was assaulted
by him, Angad, Sugriv and Vasant and that Govind was
contesting co-operative society election from rival
panel, which was scheduled on 18.09.1996, possibility of
his implicating accused No.1-Govind and others to save

¶195

himself from the aforesaid case against him and others
cannot be ruled out. Another reason to arrive at said
conclusion is that admittedly, there was quarrel between
PW-1 and accused on account of right of way from the land
of the accused, due to which there is possibility of PW-1
deposing against the accused and filing false case
against the accused cannot be ruled out.

¶196

20.When PW-1 as observed above stated that out of
accused, nobody was facing towards him and he saw them
from a distance of about 20 ft. and it was night time,
his evidence giving minute details regarding act done by
individual accused at the time of assaulting deceased
Vinayak is not believable.

¶197

21.The second eye witness Ganesh Shankar Mudabe
(PW-3) has stated that he was working as Supervisor in
Stup Construction Co. Ltd. He knows Vinayak. The
construction work of the house of Vinayak was started one
month after his death. He further stated that Vinayak is

¶198

not alive and he has been murdered. He had been to the

¶199

office of society on 21.08.1996 at about 08.00 p.m.
Election of society was to be held and therefore a
meeting was arranged in the office of the society.
Vinayak was present in the office of society till 10.30

¶200

p.m. He left the office of the society at that time.
Approximately 10 to 12 persons were present in the office

¶201

of the society. They were Vinayak, Pandit, Angad,
Satish, Vaijinath, Nandkumar and himself. 15 minutes
after the departure of Vinayak some other persons had

¶202

left and they proceeded towards their houses. He himself
and four others namely, Angad, Pandit, Vaijinath and

¶203

Laxman were present in the office of society after the
departure of remaining persons. They were in the office

¶204

of society till 11.30 p.m. At about 11.45 p.m. Pandit

¶205

left the office of the society and proceeded towards his
house. He stood in front of the door of the society for

¶206

few minutes and thereafter he went to bed. Some time

¶207

thereafter he heard noise from outside that “Appa has been betrayed” [ vkIikpk ?kkr >kyk ]. He recognized the noise. It

¶208

was noise of Pandit. 'Appa' was the nickname of deceased

¶209

Vinayak. After hearing the noise he himself and Angad
came out of the office of the society and proceeded
towards the house of Vinayak. He had noticed at that

¶210

time that Pandit too was running towards the house of

¶211

Vinayak. He had noticed eight persons in the light of
electric bulb. Vikram and Karan had held the legs of

¶212

Vinayak. Shankar and Babruwan had held the hands of
Vinayak. Arvind Mate was holding big stone in his hand.

¶213

He was standing near the head of Vinayak. Govind took
that stone from the hand of Arvind and then inflicted a

¶214

blow of that stone on the head of Vinayak. After

¶215

inflicting the blow, all of them fled away from the spot
of incident. Pandit started chasing them. He held

¶216

Govind at a distance of about 20-25 feet from the spot of

¶217

incident. He compelled Govind to fall down on the ground
and then inflicted kicks on his person. Govind thereafter

¶218

fled away from the spot of incident. Since blood was

¶219

oozing from the injuries of Vinayak, he attempted to
provide him first-aid. They wrapped a bandage around his

¶220

injuries. Pandit, thereafter, brought a jeep. Vinayak
was thereafter reached in the hospital at Ausa. The
hospital was closed. Vinayak was thereafter shifted to
Latur in Vivekanand Hospital. They reached Latur at
about 2.00 a.m. Vinayak was admitted in the hospital and
he was given treatment. At about 4o clock in the morning
Vinayak had died in the hospital, while he was under
treatment of the Doctors. Pandit, thereafter, went to
Killari Police Station. Vinayak had sustained injuries
on left side of his hand.

¶221

22.In the cross-examination, PW-3 denied that the

¶222

police had arrived on the next day of the incident in the
village and he had shown them the spot of incident. He
further denied that after noticing them the assailants

¶223

had started fleeing from the spot of incident. PW-3
denied that he himself and Angad went to Vinayak and
noticed his physical condition. He denied that he
noticed complainant Pandit bringing accused Govind

¶224

towards the jeep, when Vinayak was already kept in the

¶225

jeep for reaching him in the hospital. He denied that

¶226

he, Pandit, Angad and Vasant reached Vinayak to
Vivekanand Hospital at Latur. He denied portion marked
“B” in this respect in his statement before police. He
stated that he cannot assign any reason as to why portion

¶227

marked “B” is so recorded by police in his statement.
PW-3 denied that he stated before police that accused

¶228

Govind was caught by the complainant Pandit at a distance
of about 20–25 feet from the spot of incident and he was
made to fall down on the ground and was kicked by Pandit.
He denied that he stated before the police that jeep was
brought by complainant Pandit for reaching Vinayak in the

¶229

hospital. He denied that he had stated before police that
Vinayak was initially taken to the hospital at Ausa.
PW-3 denied that neither himself nor other prosecution
witness were aware as to how the incident had occurred.
He denied that because of political rivalry the accused

¶230

have been implicated in this false case after
premeditation, due deliberation and consultation by
taking undue advantage of the occurrence of the incident.

¶231

He denied that Vikram was not present in the village on
the day of incident. He also denied that he was an
accused in a counter case filed by the accused after the
Grampanchayat elections of 1989.

¶232

23.Thus it is clear from the above evidence of PW-3
that he denied portion that he, PW-1 Pandit and people
gathered at the spot of incident, reached Vinayak in the
jeep, which has been proved by the Investigating Office
as Exh.38, is omission while deposing before the Court.
Had it been the case that he along with three others
referred to above would have reached deceased Vinayak in
injured condition in the jeep, there would have been
bloodstains on his clothes and said stains would have
supported his evidence to prove his presence. Moreover,
his evidence that he has not stated before the police
that, accused No.1-Govind was caught by the complainant
Pandit (PW-1) at a distance of 20 ft. from the spot of
incident, and he was made to fall down on the ground and

¶233

was kicked by PW-1, and further that the jeep was brought

¶234

by PW-1 for reaching Vinayak in the hospital and that

¶235

Vinayak was initially taken to hospital at Ausa, is also
an improvement while deposing before the Court and
material omission in his statement before police. So

¶236

also as admitted by him, he was accused in counter case

¶237

filed by the accused after Grampanchayat elections of
1989. It can be said that, he was not in good terms with
accused. Therefore, he has reason to implicate them and
as suggested to him on behalf of accused that, because of

¶238

political rivalry the accused have been falsely
implicated in alleged crime after due deliberations and
consultation by taking undue advantage of the occurrence

¶239

of the incident. Another aspect to be noted is that, as
noted above, PW-3 stated that while he was standing in

¶240

front of door of society after 11.45 p.m; for few minutes

¶241

and thereafter went to bed, he heard noise from outside
that “Appacha Ghat Zala”. According to PW-3 it was noise

¶242

of PW-1 Pandit, and on hearing the said noise he and
Angad came out of the office of the society and went
towards Vinayak. While PW-1 Pandit has not stated that

¶243

after seeing the incident he uttered “Appacha Ghat Zala”.

¶244

PW-3 claims that he himself and Angad had heard noise
from 30 feet distance between office of society and house
of deceased Vinayak. Considering said distance also
evidence of this witness of hearing said noise is also
not probable. As per the prosecution case Ganesh (PW-3)
had shown the spot of incident on the next day, and
accordingly PSI Ingewad (PW-7) had prepared panchanama of
spot of incident Exh.25. PW-6 Panch Shripati Kohale has
also deposed in tune with PW-7. However, PW-3 Ganesh has
stated that, it did not happen that, on the next day of
incident police had come in the village and he had shown

¶245

them the spot of incident. The said conduct of PW-3
clearly demonstrates that he was not telling full truth
about the real incident. In that view of the matter, his
evidence is not trustworthy.

¶246

24.Prosecution examined Satish Pralhad Bajulge (PW-
4) as third eye witness. He stated that he knows Vinayak

¶247

and his house situates on the Eastern side of house of

¶248

Vinayak. East-West road situates in front of his house.
He stated that on the day of incident after having meals
he went to bed at about 9=30 p.m. At about 11=45 p.m. at

¶249

night, he heard hue and cry of Pandit. Therefore, he

¶250

went out of his house. He noticed that all the accused,

¶251

present before the Court, were running from the house of
Vinayak towards Eastern side on East-West road on the

¶252

date of incident. He heard noise of crowd from the side
of house of Vinayak. He, therefore, went there to see as
to what had happened. He noticed that blood was oozing
from the mouth and nostrils of Vinayak and a stone was
lying near his head. He enquired with Pandit, as to what

¶253

has happened. Pandit told him that all the accused had
inflicted a blow of stone on the head of Vinayak and they
fled away from the spot immediately after the incident.

¶254

The relatives of Vinayak then reached him in a jeep in
the hospital. Another jeep was hired, and in said jeep
he came to Latur.

¶255

25.In the cross-examination PW-4 admitted that

¶256

Vinayak was his maternal uncle. He admitted that there
are residential houses in his locality on all sides of
the road. Approximately 25 persons had gathered at the
spot of incident till the Vinayak was reached in the
hospital in a jeep. He could not tell their names. He
denied that he opened the door and noticed the assailants
fleeing away from the road. PW-4 admitted that he was
called by police. The police officials were present in
the office of society when he was called. Angad, Pandit,
Ganesh and Prabhakar were present along with police
officials. He had no talk with police officials. He was
present with the police officers approximately for about

¶257

2 hours. He denied that he had not witnessed the
incident.

¶258

26.From the evidence of PW-4 it is clear that he
has not seen the actual incident of assaulting the
deceased by the accused and as per his evidence he has
just seen the accused running from the house of Vinayak

¶259

towards the eastern side East-West road. He has not

¶260

stated about the act attributed to the accused
individually either as deposed by PW-1 or as deposed by
PW-3. So also his evidence is of hearsay in nature as he
deposed that on his asking, complainant Pandit told him

¶261

that all the accused inflicted blow of a stone on the

¶262

head of Vinayak, and they fled away from the spot of
incident immediately. Admittedly, the deceased was
maternal uncle of PW-4. He admitted that he was co-
accused in case, in which his mother was arrested. For
the above reasons, when he is closely related to the
deceased, his evidence is not believable.

¶263

27.On careful consideration of oral evidence of eye
witnesses PWs 1,3 & 4, it is clear that there is no
consistency in the evidence of these witnesses as regards
individual role of the accused and needless to state that
PW-4 has not at all named any accused. As referred

¶264

earlier the evidence of PW 1 & 3 only shows that accused
No.1 Govind, who is no more and died, against whom appeal

¶265

is abated had hit the stone on the head of the deceased.

¶266

None of these eye witnesses have stated that the accused

¶267

were armed with deadly weapons. So also, these witnesses
have not claimed that they had seen all the accused,
proceeding towards the house of the deceased where the
deceased was sleeping, holding weapons in their hands, so

¶268

as to hold that they were members of unlawful assembly,
and in prosecution of common object i.e. to kill the
deceased, of said assembly, they had gone to his house.
All these eye witnesses PWs 1,3 & 4 have claimed that one

¶269

Angad, who is brother of deceased had also come to the
spot of incident. Admittedly, he has not been examined
by the prosecution. It has come in the evidence of PW-3

¶270

that, he himself and four other persons, namely, Angad,
Pandit, Vaijinath and Laxman were present in the office

¶271

of society in the night after departure of remaining
persons till 11.30 p.m., and at about 11.45 p.m. PW-1
Pandit left the office and proceeded towards his house.
PW1's evidence shows that thereafter PW-3,Angad,Vaijinath

¶272

& Laxman were in the office of the society. Therefore,
said Angad, Vaijinath & Laxman in natural course would

¶273

have definitely heard noise of PW-1 after assaulting the

¶274

deceased, and would have also gone to the spot of
incident with PW-3 and could have also seen the incident.
Admittedly, said Vaijinath and Laxman have also not been
examined by the prosecution. In-fact, they being
independent and not related witnesses to the deceased,
were required to be examined by the prosecution. In the

¶275

light of discussion in foregoing paragraphs, the evidence

¶276

of PWs 1,3 and 4, who are related to the deceased and
interested witnesses, is not consistent and ultimately
not believable so as to infer that all the accused armed

¶277

with deadly weapons, formed unlawful assembly in the

¶278

night on the date of incident and in furtherance of
common object of said assembly, they assaulted and Killed
Vinayak (deceased). In such circumstances, the evidence
referred to above is not even sufficient to infer that
the accused Nos.2 to 8 were members of unlawful assembly
and were armed with deadly weapons.

¶279

28.The next piece of evidence relied upon by the

¶280

prosecution is the panchanama of spot of incident Exh.37.

¶281

Said panchanama shows that, one stone along with other
articles having bloodstains were seized from the spot of
incident. The Investigating Office – PSI Ingewad (PW-7)

¶282

has deposed that the articles including stone, were

¶283

seized from the spot of the incident. Thereafter, the
investigation was handed over to CPI Kanthewar as per the
instructions of the Superintendent of Police, Latur. It

¶284

is the case of the prosecution that the seized stone and
other articles were sent to the Chemical Analyser for
analysis. However, CA report was not produced on record.
In-fact, it was necessary on the part of the prosecution

¶285

to find out that the said bloodstains found on stone,
were of the deceased, so as to say that said stone was

¶286

used in assaulting the deceased. Therefore, mere seizure

¶287

of stone and other articles as per spot panchanam Exh.37

¶288

is of no help to the prosecution to connect either the

¶289

accused No.1 – Govind or accused Nos.2 to 8 with the
offences alleged against them.

¶290

29.Now coming to the defence of the accused, their

¶291

defence is simple denial. As appears from the trend of
cross-examination of the eye witnesses there were two
political groups in the village. One was headed by Angad
– brother of the deceased and one was headed by accused
No.1-Govind (since deceased). It was alleged that the
character of the deceased was not good and therefore he

¶292

was assaulted by unknown persons, however, PW-1–an
informant, who is an advocate by profession, has falsely
implicated the accused. It is also the defence of the
accused, that there was election of society on
18.09.1996, accused No.1-Govind was contesting the
election of the Co-operative Society from rival panel and
therefore out of political rivalry, they are falsely
implicated in the alleged offences. Accused No.1 – Govind

¶293

was assaulted by Angad, Sugriv and Vasant alleging that
he was responsible for the incident, and accused no.1
Govind sustained injury. Accused No.1–Govind filed
complaint application Exh.40 prior to the FIR in this
case with Killari Police Station alleging that in the

¶294

night of 22.08.1996 at about 01=00 a.m. to 01-30 a.m.,
while he was sleeping in the shed, he heard noise.
Therefore, he, Namdeo Kohale, Vishnu Kohale and
Harishchandra Kohale went towards house of Angad Kohale.

¶295

There somebody had quarreled with Angad Kohale. No
sooner accused No.1 and other went there, presuming that
accused No.1 assaulted, Angad, Sugriv, Pandit and Vasant

¶296

beat him and caused him injuries. Said complaint
application is proved by the Investigating Officer – PSI
Ingewad.

¶297

30.Now coming to the defence witness -

¶298

Harishchandra Limbaji Kohale (DW-1) at Exh.61, whose name
is in the complaint application of accused No.1 – Govind,

¶299

has deposed that deceased Vinayak was his cousin brother.

¶300

He was present in the office of the Grampanchayat, when
the incident occurred in the evening. At that time when
he himself and others had slept in the office of
Grampanchayat, at about mid night, they heard hue and
cry. He along with other persons came out of office of

¶301

the Grampanchayat and went towards the road. All of them

¶302

thereafter ran towards the place from which noise was
audible. They went to the house of Vinayak. They saw
Crowd gathered in front of house of Vinayak. It was

¶303

dark, since there were no street lights. He enquired

¶304

with the crowd as to what had happened at that spot.
However, nobody replied to his query. Therefore, accused

¶305

Govind enquired in loud voice as to what had happened?
After hearing voice of accused no.1-Govind, PW-1 arrived
at that spot, and caught hold the neck of said Govind and
stated that all of them have committed offence of
assaulting his uncle. Angad, Sugriv, Vishnu and others

¶306

also came at that place, and accused No.1–Govind was
assaulted by PW-1. Afore-stated evidence of DW-1 is not
shattered in the cross-examination on behalf of the
prosecution. His evidence shows that PW-1 and accused
came to the spot of incident after people had gathered at
house of Vinayak. It further shows that accused No.1 -

¶307

Govind was assaulted by PW-1 Pandit. Admittedly, DW-1 is

¶308

cousin of the deceased. Therefore, he has no reason to

¶309

depose against the prosecution. Hence, there is no

¶310

reason to disbelieve his evidence.

¶311

31.Evidence of Vijay Aounde [DW-2], who is Junior
Engineer shows that, accused No.8–Vikram Kohale was
serving as Junior Engineer in the Project of
Rehabilitation of Earthquake Affected Persons, at the

¶312

relevant time of the incident. His evidence further shows

¶313

that, on 21.08.1996, he had been to Nakuleshwar –

¶314

Borgaon, as meeting was called by the Collector, Latur,
for taking account of progress of rehabilitation work and
accused No.8 Vikram had also come to attend said meeting.

¶315

He stated that said meeting started at about 5.30 p.m.
and it was in progress till 09.00 p.m. Since it was

¶316

raining in the said night, they had taken decision to
take halt at Nakuleshwar – Borgaon itself. He stated
that some persons including accused No. 8 Vikram,

¶317

Sarpanch and some Junior Engineers halted with him, and
Sarpanch of village Nakuleshwar – Borgaon had made
arrangement of their meal. They had dinner at 10.30 p.m.

¶318

and were chit-chatting till 11.30 p.m. He further stated
that they halted at same place where the meeting was
arranged. Accused No.8 – Vikram was with them till next
day in the morning. They came to Ausa together and
thereafter went to their respective villages. Though he
has been cross-examined at length, however, nothing was
elicited from his cross, which can lend support to the
prosecution case. The relevant portion of the register
of said meeting is also produced at Exh.63. Considering
the above discussed evidence, there is substance in the
defence of accused No.8 Vikram that, at the time of
incident on 21.08.1996 in the night at 11.30 p.m., he was
not present in his village – Haregaon.

¶319

32.As observed earlier, since 1989 there were two
political groups in Haregaon, one headed by Angad-uncle
of PW-1 and another headed by accused No.1-Govind (since
deceased). There were cross cases filed by the groups
against each other. So also as noted earlier accused
No.1-Govind had filed complaint application in the police

¶320

station alleging that on 22.08.1996 at 01=00 to 01=30
a.m. he was assaulted by PW-1 and others, and said
complaint application was filed prior to the FIR in this
case lodged by PW-1 Pandit on 22.08.1996 at 05.30 p.m.
In the above circumstances, the possibility of falsely
implicating the accused in the alleged incident, due to
political rivalry by PW-1, cannot be ruled out.

¶321

33.As regards motive of accused to commit murder of
deceased Vinayak, it appears that as per prosecution
case, there were two political groups in the village, one
headed by Angad – brother of the deceased and another
headed by accused No.1 – Govind (since deceased), and out
of said political rivalry Vinayak was murdered. It has

¶322

come on record that, the deceased never held any post in

¶323

the Grampanchayat or in the Seva Sahakari society, in the
village. So also, he did not contest election of the
society which was scheduled to be held in September,
1996. Considering these aspects and the defence of the
accused as discussed here-in-above, the prosecution has

¶324

failed to prove that the accused had motive to commit
murder of the deceased.

¶325

34.For the reasons discussed above, the evidence
adduced by the prosecution is not sufficient to hold that
the accused formed unlawful assembly as alleged and being
members of unlawful assembly were armed with deadly
weapons, they committed house trespass and killed Vinayak
and are responsible for the death. Merely because the

¶326

death of the deceased was homicidal, is no ground to
connect the accused with commission of alleged offences.
We, therefore, hold that the prosecution has failed to

¶327

prove alleged offences under sections 452 and 302 read
with section 149 and under sections 143, 147 and 148 of

¶328

the Indian Penal Code against the accused, beyond
reasonable doubt. The Trial Court has rightly held that
the prosecution has failed to prove alleged offences

¶329

against the accused with which they were charged. The
Trial Court rightly acquitted accused by giving benefit

¶330

of doubt. The view taken by the Trial Court is a

¶331

reasonable and possible view, and it is not the case that
there is error in appreciating evidence by the Trial
Court. Thus, there is no justifiable ground to interfere
with the impugned judgment and order of acquittal of the
accused. Therefore, the appeal being devoid of merits,
the same is liable to be dismissed. Accordingly, we
dismiss the same. Bail bonds of accused Nos.2 to 8 shall
stand cancelled.

¶332

35.Mr.V.R. Dhorde, advocate was appointed to

¶333

represent the accused/respondent Nos. 2 to 8. We
appreciate his sincere efforts in rendering able

¶334

assistance during the course of hearing the appeal, so as
to arrive at proper conclusion. We quantify his fees at
Rs.7500/- (Rupees Seven Thousand Five Hundred Only).

¶335

[S.M.GAVHANE,J.] [S.S. SHINDE,J.]

¶336

snk/2017/SEP17/ crap22.00

The State of Maharashtra v. Govind Shankarrao Kohale and Ors.

Case brief

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The State of Maharashtra v. Govind Shankarrao Kohale and Ors.

Case brief

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