Dismissed

The State of Maharashtra v. Poty @ Popat Parkhiya Kale

Bombay HC18 Sept 2017APEAL/269/2002

Case brief

AI extract

What is this about?

State appeal against acquittal of the accused of offences under Sections 307, 399, 353, 332, 336, 400, 401 and 402 IPC and the Arms Act. The court found the prosecution evidence inconsistent, the accused's identification unreliable and the injuries inconsistent with axe blows, upheld the acquittal and dismissed the appeal.

What did the court decide?

Appeal dismissed; bail bond of the accused cancelled; Criminal Application No. 1343 of 2002 for compensation disposed of as no case was made out under Section 250 CrPC.

The State of Maharashtra Vs Poty @ Popat Parkhiya… — Criminal Trial and Appeal | Bombay HC (2017)

¶1

( 1 ) crap269.02

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

CRIMINAL APPEAL NO. 269 OF 2002 WITH

¶4

CRIMINAL APPLICATION NO. 1343 OF 2002

¶5

The State of Maharashtra
Through Police Station,
Waluj, Tq. Gangapur

¶6

..Appellant

¶7

Versus

¶8

Potya @ Popat @ Potiram
s/o. Parkhiya Kale, Age. 45 years,
R/o. Yesgaon-Diggi-shivar,
Tq. Gangapur, Dist. Aurangabad.

¶9

..Respondents

¶10

Mr.P.G. Borade, APP for the appellant/State.
Mr.A.B. Gaikwad, Advocate for the respondent (Absent).

¶11

CORAM : T.V. NALAWADE &
 S.M.GAVHANE,JJ.
DATED: 18.09.2017

¶12

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

¶13

.This appeal is directed against the judgment and

¶14

order dated 22.01.2002 in Sessions Case No. 245 of 2000

¶15

passed by the II Additional Adhoc Sessions Judge,
Aurangabad, acquitting the respondent/accused of the

¶16

offences punishable under sections 307, 399, 353, 332,
336, 400, 401 and 402 of the Indian Penal Code [for short

¶17

“the IPC”] and under sections 3 and 4 read with section
25 of the Arms Act.

¶18

2.Facts of the prosecution case are as under:-

¶19

A]The informant – James Banduji Ambildhage [PW-1],
who was Police Inspector in Crime Branch, Aurangabad city
at the relevant time of incident, lodged complaint Exh.14
in Waluj Police Station on 06.06.2000 alleging that gang
of decoits had come in the Shivar of Yesgaon Digi within
the jurisdiction of Waluj Police Station, with arms, in
order to commit decoity. The said decoits had committed

¶20

decoity at the petrol pumps and at other places in
Chhavni area. The informant received above said
information on 05.06.2000 at about 07.55 p.m.

¶21

B]After receiving aforesaid information, PI

¶22

Ambildhage [PW-1] entered the information in the station
diary maintained in the Crime Branch and at about 08.10
p.m. informed his superior and sought enough police force

¶23

for effecting raid. Accordingly, ten commandos, ten
policemen from police head-quarter, four lady constables
from control room were provided to the informant for
effecting raid. So also PSI Thakare [PW-9] and PSI
Shinde [PW-10] also joined the informant in the operation
of raid. Two light police vans were also provided to the
informant. Moreover, two panchas, namely, Govind and
Sujit were selected to help in the conduct of the raid.
The informant informed all the concerned about the
information received and about the purpose of raid to be
effected.

¶24

C]PI Ambildhage [PW-1] further gave necessary
instructions to all the police personnels around 01.10
a.m. on 06.06.2000. At about 02.10 a.m. the concerned
person told to PI Ambildhage [PW-1] that a group of 15
decoits had assembled in a hut in the Gayran of Digi
Shivar and that they were armed with weapons and that
they should be nabbed in Pardhi Vasti. Thereupon, PI
Ambildhage [PW-1] along with aforesaid police personnels

¶25

and panchas left the control room at around 03.15 a.m.

¶26

and reached to Waluj Police Station around 04.00 a.m.

¶27

From said police station, he took with him API Wajale,
[PW-8] five more constables and one lady constable. As
such with the force of 54 police personnels PI Ambildhage

¶28

[PW-1] went across Digi Shivar at about 05=30 a.m. The
vehicles were stopped at a distance of 1.5 km. from the

¶29

spot of incident as a part of strategic step. PI formed
three separate teams of the police force. The team

¶30

headed by PSI Thakare [PW-9] was directed to proceed
towards spot by Northern side. Second team comprising of
ten police men headed by PSI Shinde went by Northern

¶31

side. PI Ambildhage [PW-1] who headed the team of
remaining policemen went by the Eastern side. There was
pelting of stones towards Police Station Officers and

¶32

men. A decoit who was later identified as Nilkanth had

¶33

attacked police constable Khandagale [PW-3] on his left
arm. He also injured police constable Abdul Gafar [PW-4]

¶34

with sword when he was evolving a plan to catch hold

¶35

decoits. PI Ambildhage [PW-1] rushed for rescue of

¶36

constable but decoit [deceased Nilkanth] dealt a sword

¶37

blow which struck on left side of his chest and the

¶38

attack on him was with the aim of killing him. PI
Ambildhage [PW-1] dealt a severe blow on the face of
deceased. As a consequence, he fell down and the sword

¶39

which he was carrying was dropped from his hand. While

¶40

he was lying on the ground, he took out a country made

¶41

pistol from his waist and aimed at the inspector for
shotting him down. It is case of the prosecution that

¶42

informant PI Ambildhage [PW-1] in order to protect
himself and his men fired his service revolver at the
deceased Nilkanth. The bullet hit deceased Nilkanth and

¶43

went first through his right thigh and then left. Even
after being wounded by the bullet, the deceased struggled

¶44

to act but the informant succeeded in disarming him with
the help of his men.

¶45

D]It is case of the prosecution that accused Potya

¶46

swung his axe around and assaulted PHC Adhane [PW-5],

¶47

Dhavale [PW-6], lady police constable Thakare [PW-7] and

¶48

police constable Abdul Gaffar [PW-4] with an intention of
killing them. He had also assaulted API Wajale [PW-8]
with the axe. API Wajale was also injured by stones
which were flung at him by some of the decoits. Accused

¶49

Potya was apprehended on the spot by API Wajale with the

¶50

help of policemen. The prosecution has pointed out that
other decoits disappeared without being caught by the

¶51

police. Policemen tried to chase them but they eluded
the police and vanished from the sight. The prosecution

¶52

has further pointed out that on enquiry by informant PI
Ambildhage [PW-1], the deceased had revealed his name
first as Jitya alias Jitesh Popat Kale. Deceased and
accused Potya had furnished names of decoits as Ashok
Pawar, Anna Kale, Chavan, Shiva Pawar.

¶53

E]It is further case of the prosecution that
informant PI Ambildhage took in his possession pistol

¶54

wielded by deceased. He also took axe which accused

¶55

Potya was carrying with him. He arranged deceased to be

¶56

sent to the Government Medical College and Hospital,

¶57

Aurangabad with PSI thakare [PW-9], in a police vehicle,
for medical treatment being made available to him. He
then took search of the hut which existed on the spot.
Inside the hut, Rukhmanbai and Anandibai, the household
ladies of the deceased were present. They were asked to

¶58

sit outside the hut during the course of search. The
search yielded Koyata, axe, knife and chain. A panchanama
was duly prepared and attested by the panch witnesses.
Wounded police constables PC Subhash Khandagle [PW-3], PC
Abdul Gaffar [PW-4], PHC Damodhar Adhane [PW-5], PHC
Tatyarao Dhavale [PW-6]and lady constable Nirmala Thakare
[PW-7] were sent to the Government Medical College and
Hospital, Aurangabad for examination and treatment of
injuries to them. The informant – PI Ambildhage passed
on to control room the information about the incident on
wireless.

¶59

F]PI Ambildhage after taking possession of arms
and other articles which he had found in the hut came to
police station of Waluj. On the next day he lodged

¶60

complaint as above. API Wajale [PW-8] registered the FIR
on the complaint of PI Ambildhage involving the present
accused Potya and eight others (including the deceased)
for the offence punishable under sections 307, 399, 353,
332, 336, 401 & 402 of the IPC and sections 3 and 4 read
with section 25 of the Arms Act. After offence was
registered the informant Ambildhage accompanied by API
Wajale [PW-8] and panch witnesses and some policemen went
back to the spot. API Wajale inspected the scene of
offence in presence of the panchas, seized used bullet
which had been found on the spot and which was fired from
service resolver of informant PI Ambildhage.

¶61

G]ACP Sonawane [PW-25] started investigation.
Lateron the deceased was identified as Nilkanth and it

¶62

was transpired that he had tried to mislead police by
falsely stating his name as Jitya. The deceased died in
the hospital at 01=25 p.m. on 06.06.2000. The Assistance
of Mr. Datkar, Tahsildar [PW-20] was taken for the
purpose of inquest panchanama. On 06.06.2000 pursuant to

¶63

order of SDM, Aurangabad, Mr. Datkar [PW-20] visited the
Government Medical College and Hospital and prepared
inquest panchanama of the dead body of deceased Nilkanth
in the mortuary at about 5.15 p.m. The post mortem
examination was conducted by team of six doctors Dr.

¶64

Jine, Dr. Jawale, Dr. Yadav, Dr. Bhalchandra, Dr. Tapase
and Dr. Surwase, all from the government Medical College

¶65

and Hospital, Aurangabad. The post mortem was held
between 09.45 p.m. to 11.30 p.m. Based on post mortem
findings, the Medical Officer had given the cause of
death as hemorrhagic shock due to transection of right
femoral artery due to fire arm. The viscera was preserved

¶66

for chemical analysis and the organs were kept for
histopath examination. Skin around entry wound and exit
wound preserved in four bottles for chemical examination.

¶67

H]Dr. Anjana Thakkar [PW-15] on 06.06.2000

¶68

examined five injured police constables, namely, PC
Subhash Khandagale [PW-3], PC Abdul Gaffar [PW-4], PHC
Damodhar Adhane [PW-5], PHC Tatyarao Dhavale [PW-6] and

¶69

lady constable Nirmala Thakare [PW-7] and issued
certificates Exhibits 64 to 68. Informant PI Ambildhage
[PW-1] and API Wajale [PW-8] were referred to Police
Hospital, Aurangabad for examination of their injuries on
06.06.2000. Dr. Thorat, Medical Officer, incharge of the

¶70

police hospital after examining PI Ambildhage [PW-1]
found two injuries on his person and cut injuries on his
chest and lacerated wound on his left lower leg as per
certificate Exh.80. API Wajale [PW-8] had sustained one
contusion on his right knee joint as per Exh.81.

¶71

I]The investigating officer Mr.Sonawane, Assistant

¶72

Commissioner of Police, [PW-25], recorded the statements
of all connected witnesses. He collected the relevant
medical data. He got fire arms examined by the ballistic
expert. He got good data by deputing police officers to
various police stations regarding involvement of accused
in some criminal cases. He deployed police officers for
apprehending absconding accused persons but none of them
could be arrested. He submitted the charge sheet against

¶73

accused Potya and absconding accused before JMFC,
Gangapur.

¶74

3.The learned JMFC, Gangapur committed the case to
the Sessions Court, Aurangabad, which was made over to II
Additional Adhoc Sessions Judge, Aurangabad for trial, as
the offence punishable under section 307,399,400 & 402 of
the IPC were exclusively triable by the Sessions Court.

¶75

4.The charge was framed against the accused for

¶76

the offence punishable under sections 307, 399, 353, 336,
401, 402 of the IPC and under sections 3 and 4 read with
section 25 of the Arms Act, to which the accused pleaded
not guilty and claimed to be tried. His defence as it
appears from the cross-examination of the material
prosecution witnesses is that the police were suspecting
involvement of Jitya Kale in the alleged preparation of
decoity as he was allegedly involved in earlier decoities
at different places and on the date of incident presuming

¶77

that said Jitya was involved in the commission of

¶78

offence, police killed Nilkanth alias Nitya, son of the
accused. After knowing that they have killed son of the
accused and the deceased decoit was not Jitya, police
have falsely involved accused to save themselves from the
prosecution against them. On the date of incident the
accused was sleeping in his hut with his wife, son-
deceased Nitya and five daughters and he has committed no
offence. In defence, the accused has examined his wife
at Exh.175.

¶79

5.To prove charge against the accused, the

¶80

prosecution has examined in all 25 witnesses and it has

¶81

relied upon different panchanamas referred to above. It
has also relied upon the injury certificate of the

¶82

prosecution witnesses who sustained injuries as referred

¶83

earlier and seizure of weapons. On considering the
evidence adduced by the prosecution and the evidence of
defence, the Trial Court has held that the prosecution
has failed to prove the offences against the accused with
which he was charged and accordingly acquitted him of the

¶84

said offences i.e. under sections 307, 399, 353, 336,
400, 401 and 402 of the IPC and sections 3/4 read with
section 25 of the Arms Act by the impugned judgment and
order. Aggrieved by the said acquittal of the respondent
– accused, the State has filed this appeal against
acquittal on several ground mentioned in the memorandum
of appeal.

¶85

6.We have heard learned APP appearing for the
appellant-State and learned advocate for the respondent –
accused. With their assistance, we have perused the
evidence adduced by the prosecution. We have also gone
through the impugned judgment and order.

¶86

7.Case of the prosecution is that accused Potya

¶87

along with absconding accused persons assaulted PI
Ambildhage (PW-1) and police personnels PC Khandagale
(PW-3), PC – Abdul Gafar (PW-4), PHC Dhavale (PW-6), LPC
Nirmala Thakare (PW-7) and API Wajale (PW-8) with axe and
stones and attempted to commit murder, that the accused

¶88

along with absconded accused made preparation to commit
decoity on 06.06.2000 at Dighi Shivar Gayran, that the
accused and absconded accused assaulted PI Ambildhage
(PW-1) and aforesaid police persons in execution of their
duty as a public servant with intend to prevent them from
performing their duty, that the accused and absconded
accused voluntarily caused hurt to PW-1 PI Ambildhage

¶89

[PW-1] and above said police personnel in discharge of
their official duty, that the accused and absconded
accused rashly and negligently pelted stones towards them
endangering their life or personal safety, that accused
and absconding accused were belonging to gang of persons

¶90

associated for the purpose of habitually committing
decoity, accused and absconding accused belonging to
wandering gang of persons associated for the purpose of
habitually committing theft or robbery, that accused and
absconding accused had assembled in Dighi Shivar for the
purpose of committing decoity and that they were armed

¶91

with deadly weapons on the aforesaid date. To prove

¶92

these facts the prosecution has mainly relied upon

¶93

evidence of PW-1, 4 to 8, 15 and injury certificates
Exhs. 65 to 68 and panchanams of seizure of weapons
Exh.13 & 17.

¶94

8.Now coming to the oral evidence, the evidence of

¶95

PW-1 PI Ambildhage who received information about the
alleged preparation by the accused and absconding accused

¶96

to commit decoity and who lodged complaint Exh.14 has

¶97

deposed that on 05.06.2000 at 7.55 p.m. he received
information that the gang of Pardhi people had come in
Gayran of village Yesgaon Dighi and had prepared for
decoity. There was also information that said gang had
committed decoities in rural areas of Aurangabad at
petrol pumps and also in Chhavani area of Aurangabad.
He deposed that on the same day he gave said information

¶98

to Shri Dabhade, incharge of his branch i.e. Crime Branch
as well as Police Commissioner and requested to give more

¶99

police force for action. He stated that 10 police
personnel from Police Head Quarter, four lady constables,

¶100

10 police personnel from Commando Branch at control room,

¶101

two light police vans as well as PSI Thakare [PW-9] and

¶102

PSI Shinde [PW-10] were provided for the action. He
stated that on 06.06.2000 at 00.10 hours, police
personnel from Police Head Quarter and control room came
to his office. He gave them idea about the proposed
action. Accordingly he took entry in station diary at
00.20 hours. At about 2.10 a.m. the informant came to

¶103

his office and again gave information that 10-15 decoits

¶104

were halted in one hut armed with weapons in Gayran of
Dighi Shivar and that said decoits could be nabbed. He
gave all the police persons and panchas instructions
regarding raid. Further he deposed that on 06.06.2000 at
03.50 a.m. they left their office and came to control
room. Then all of them came to Waluj by two light vans
and by his jeep at 4.00 a.m. He took API Wajale from
Waluj police station. Thereafter, they all came to Dighi
Shivar at about 5.30 a.m. via Limbe Jalgaon, Turkabad and
Rajura.

¶105

9.As regards the incident, PI Ambildhage (PW-1)

¶106

has stated that vehicles were stopped at a distance of 1

¶107

to 1.5 km. away from the spot. They got down from the
vehicles. Then he briefed all the members of the raiding
party regarding proposed raid. Then a group of 10
constables headed by PSI Thakare [PW-9] was directed to

¶108

go to spot from the southern side. Other 10 constables
along with PSI Shinde were directed to go to spot from
southern side. Rest of police staff under his supervision
and supervision of API Wajale [PW-8] proceeded to spot

¶109

from the eastern side by keeping distance. They were
walking on feet towards the spot. The decoits on seeing

¶110

them suddenly attacked with the help of sword and axe

¶111

with intention to kill them. They also pelted stone to
them. While trying to catch some of the decoits one of

¶112

the decoits assaulted police constable Gafar (PW-4) by
means of sword and some decoits had assaulted police
constable PC Khandagale [PW-3] prior to assault on PC

¶113

Gafar [PW-4]. Therefore, PC Khandagale [PW-3] and PC
Gafar [PW-4] sustained injuries respectively on left arm

¶114

and finger of left hand. He rushed to save them but said

¶115

decoit also attacked him by means of sword with intention
to kill him. In the said assault, he sustained injury
under left arm by means of sword. His shirt and baniyan
were torn. He gave fist blow to the said decoit and said
decoit fell on thighs. The sword from his hand fell
down. In lying position said decoit removed his country
made pistol from his waist and pointed at him for firing
and he intended to kill him. Therefore, for his self
protection and defence and also for the protection of
other staff, he fired pistol at the said decoit when he
was lying on the thigh. Bullet from the service revolver
passed through right thigh and then through left thigh of
said decoit. However, said decoit tried to assault him
and therefore he made him unarmed with the help of police
staff.

¶116

10.PI Ambildhage [PW-1] further deposed that

¶117

accused person in the court was armed with axe and he
assaulted PHC Adhane [PW-5] and PHC Dhavane [PW-6], LPC
Thakare [PW-7] as well as PC Gafar [PW-4] by means of axe

¶118

with intention to kill them. Accused had also assaulted

¶119

API Wajale [PW-8] who sustained injuries by axe and stone
which were thrown by said decoits. He stated that he
also sustained injury because of throwing of stone by
decoits. He deposed that API Wajale [PW-8] and police
staff caught hold accused along with axe and took him in
the custody and on enquiry said accused told his name as

¶120

Jitya alias Jitesh Popat Kale. He stated that the
articles were found on the spot and were seized under
panchanama. According to him country made pistol
(article No.1), sword (article No.3) were found in
possession of deceased Jitesh. Axe (article No.4) was
found in the possession of accused before the Court.

¶121

11.In the cross-examination PW-1 stated that in all
54 persons including panchas were proceeded for raid in
three vehicles. He made enquiry with Rukminibai (defence
witness) regarding ownership of hut and she told him that
it was belonging to her. She told him that the deceased

¶122

was his son and the accused is her husband. He stated

¶123

that stones were not seized. So also, he had not seized

¶124

instrument of house breaking and torch from the hut. He
has denied that he wanted to arrest Jitya Kale, but by
mistake the pistol was fired at Nilkanth and in order to
avoid responsibility of death of said Nilkanth, false

¶125

case is filed against the accused. He also denied that
he deposed false that there were decoits in the hut and

¶126

they had attacked on them. He denied that false evidence
was collected and false case was filed against the
accused. He denied that accused had not assaulted with
axe to PHC Adhane [PW-5], PHC Dhavale [PW-6], LPC Thakare

¶127

[PW-7] and PC Gafar [PW-4]. He stated that he does not

¶128

know that accused had filed complaint before Human Rights
Commission, New Delhi, alleging that his innocent son
Nilkanth was killed and false case was filed against him.
He admitted that there were questions regarding incident

¶129

in the Assembly of Maharashtra. It has come in his

¶130

evidence that Jitya, who was injured with bullet died in

¶131

the hospital. He came to know that at the time of

¶132

incident he told his false name. Thus evidence of PW-1

¶133

PI Ambildhage shows that deceased decoit who was injured

¶134

by him was in-fact not decoit but he was Nilkanth alias
Nitya, son of the accused and the defence witness
Rukminibai and said Nitya died due to bullet injury on
the date of the incident.

¶135

12.As referred above, PW-1 has of-course stated

¶136

that accused in the Court had assaulted PWs 4 to 7 with
intention to kill them and also assaulted PW-8, but there
is no material to show that he had seen the accused prior
to the incident in question, so as to say that it was
possible for him to identify the accused in the Court.
Another reason to hold this is that PW-1 has admitted
that names of deceased decoit and the accused were not
mentioned in the FIR in previous decoities and the
accused in the said offences were unknown. In such
circumstances, as PW-1 had no occasion to see the accused

¶137

in the earlier offences, he had no occasion to identify
him. Therefore, when earlier offences were registered
against unknown decoits and the deceased decoit and the

¶138

accused, his father were not accused in the earlier
offences, before accepting or rejecting the evidence of
PW-1 that the accused assaulted PWs 4 to 7 by axe and
also assaulted PW-8, the evidence of other witnesses is
required to be considered.

¶139

13.PW-3 PC Khandagale, who accompanied PW-1 at the

¶140

time of raid has not specifically stated about the
involvement of the accused stating that he was armed with
axe and he assaulted PWs 4,5,6,7 and 8 as deposed by PW-
1. So also, he has not identified the accused before the
Court. He stated that the name of the deceased decoit
was not Jitya but Nilkanth alias Nitya and he was son of
the accused. Thus, his evidence is of no help to prove

¶141

the charges against the accused and his evidence only
shows that the deceased was son of the accused.

¶142

14.The evidence of PW-4 PC Shaikh Abdul Gafar is

¶143

that initially he has stated about members in the raiding
party more or less as deposed by PW-1. As regards the

¶144

incident, he deposed that when the raiding party members
were at a distance of 100 to 150 feet away from Vasti,
the decoits got hint of their arrival. The decoits
rushed out of the hut and began pelting stones towards
them, in order to kill them. They went up to them i.e.
the decoits. One of the decoits was armed with axe and
another was carrying sword in his hand. They tried to

¶145

catch hold the decoits and tried to save themselves from

¶146

the stone attack. The decoit which was carrying sword in

¶147

his hand hit PC Khandagale [PW-3] on his left arm with

¶148

the sword and the same decoit hit the sword on his left
elbow. When the sword was aimed at him, he retraced

¶149

himself and raised his hands to protect himself. But

¶150

the blow landed on his left elbow. Same decoit tried to

¶151

attack PI Ambildhage [PW-1] with the sword in order to
kill him. The sword blow injured PW-1 below his left
nipple. The wearing shirt on the person of PW-1 was

¶152

torn. Said decoit hit PW-1 again. Said decoit collapsed

¶153

on the ground. PW-1 fired from his service revolver at

¶154

the said decoit to defend and the bullet went through

¶155

right thigh and then through left thigh of the said
decoit.

¶156

15.As regards role of the accused, he stated that
he knows accused Popat Parkhiya Kale (who was in jail and

¶157

not produced on that day in the Court). He stated that
he knows the said accused since the incident. Accused
had hit PI Wajale [PW-8] on the spot with axe. Accused
also attacked staff members and PI Wajale [PW-8] with the
axe. Accused gave his name as Popat Parkhiya Kale.

¶158

16.In the cross-examination of PW-4 in paras 8 and

¶159

9, several omissions were brought on record including
omissions that this witness has stated before police that

¶160

one decoit was armed with sword and another was armed
with axe and that PI Wajale [PW-8] was attacked by axe by
the decoit, PHC Adhane [PW-5] and PHC Dhavale [PW-6] were
injured by means of axe. Due to these omissions, when
allegedly this witness had seen the accused only once at

¶161

the time of the incident, when no identification parade

¶162

was conducted to identify the accused by this wsitness

¶163

and when the accused was not present in the Coiurt on the
day when evidence of this witness was recorded, his
evidence regarding involvement of the accused is not
believable. Moreover, it is to be noted that PC Gafar

¶164

[PW-4] has not stated that the accused assaulted him with
axe and what he stated is that the decoit who was armed

¶165

with sword assaulted on his left eblow and therefore said
evidence is not sufficient to show involvement of the
accused in the incident of assaulting him (PW-4).

¶166

17.PHC Adhane (PW-5) who allegedly sustained injury

¶167

due to axe blow given by the accused, has stated about
the raid carried by PW-1 with others on 06.06.2000 more
or less as deposed by PW-1, in Dighi Shivar at about 5.30
a.m. As regards the incident, he stated that when they

¶168

had reached about 150 ft. away from the Pardhi Vasti, the
decoits got scent of their arrival. 10-12 decoits
attacked the policemen pelting stones. They were having
with them axes and sword. They tried to catch hold some

¶169

of the decoits. One of the decoits hit an axe blow with

¶170

blunt side of his right chest. The same decoit hit with
an axe blow on his right hand by head side (blunt side).
The decoit who had given axe blow was the accused Potya
lodged in jail. PC Dhavale (PW-6) was also injured by
axe hit. LPC Thakare (PW-7) was also injured with the
axe by the accused Potya. PC Khandagale (PW-3) was

¶171

attacked by one of the decoits by sword which he was
carrying in his hand and PC Gafar (PW-4) was also
assaulted with sword by decoit. One of the decoits gave
sword blow on the left side of PW-1 near his nipple and
the Inspector sustained injury and his shirt was torn.

¶172

The decoit again hit PW-1 with sword, but PW-1 gave blow
on his nose and escaped. The decoit fell on the road on

¶173

his buttock. The decoit left sword on the ground and

¶174

took out his pistol from his waist and aimed at PW-1 in
order to shoot to kill him. PW-1 in order to save his

¶175

life and life of other force, fired his service revolver

¶176

on the right leg of decoit. The bullet grazed first
through right thigh and then to the left thigh. PW-1

¶177

with the help of his men, disarmed the decoit by
snatching pistol from him. The said decoit died on
06.06.2000 at 3 to 4 p.m. in the hospital. He was Nitya
alias Nilkanth and he has told his name to police as
Jitya alias Jitesh Popat Kale.

¶178

18.In the cross-examination PW-5 has denied that

¶179

PW-1 had received information that Jitya alias Jitesh had
come to Pardhi Vasti and as he wanted to nab him, he had
gone there with big force. He denied that on reaching
the Vasti, PW-1 took out deceased, accused Potya and 4-5
daughters of the accused and PW-1 took deceased to the

¶180

Western side of hut and tied his legs with a rope and
also his hand with handkerchief and PW-1 then fired a
shot from his revolver which went through his right and
left thigh from distance of 5-6 feet, which ultimately
resulted in to his death. PW-5 stated to police that one
of the decoits had injured him by axe on his right chest,
the accused was caught hold on the spot and that while

¶181

the accused was running away, he was caught. PW-5 has

¶182

not specifically identified the accused before the Court.

¶183

So also, he has not stated as to how he was knowing
accused. When it appears that this witness had not
earlier seen the accused and when he claims that he saw
accused for the first time in alleged raid, he should

¶184

have deposed as to on what basis he was knowing the
accused. Therefore, in the absence of proper
identification of the accused by this witness, his
evidence is not sufficient to infer that really accused
assaulted this witness by axe as deposed by him.

¶185

19.The evidence of PW-6 PHC Dhavale, who was

¶186

allegedly injured by the accused by axe has also deposed
regarding raid by PW-1 PI Ambildhage on 06.06.2000, more

¶187

or less as deposed by PW-1. As regards the incident, his
evidence is that they reached the spot about 1 ½ km from
Pardhi Vasti around 5.30 a.m. After stopping vehicles on

¶188

the road, they all got down. PW-1 then gave required
instructions to policemen. As regards the actual
incident, he deposed that when they were at a distance of

¶189

100 – 150 ft away from the spot, decoits got smell of
their arrival. They started pelting stones towards them.
Those pelting stones were 10-12 in number. Some of them
were carrying with them axes and sword. One of the
decoits came forward having sword and hit a blow on the
left hand of PC Khandagale (PW-3) and the same decoit hit
PC Gafar (PW-4) with sword on his left hand. Accused
Potya came forward holding an axe in his hand and aimed
axe on him. He raised his hands to stop the attack, but
the axe hit on his left hand palm. One stone had hit his
chest. Pointing to accused he stated that the accused
gave axe blow to HC Adhane (PW-5), LPC Thakare (PW-7).
He also stated about the assault by one of the decoits
with the sword who sustained bullet injuries of revolver
of PW-1 and who had subsequently died on the same day.

¶190

20.In the cross-examination PW-6 has denied that

¶191

PW-1 wanted one Jitya alias Jitesh for being killed and
created a panic in the mind of criminals. He denied that
the deceased was concealing in the hut with accused Potya

¶192

and his other family members. They went and woke up
them. He denied that PW-1 and other police men got up
the deceased from the hut and tied his legs with a rope
and tied his hands with handkerchief and PW-1 shot down
the deceased with revolver. He denied that PW-1 came to

¶193

know that deceased was in-fact Nilkanth and not Jitya.
Then he made out false case.

¶194

21.So also, in the cross-examination in para 11

¶195

certain omissions have been brought on record in the
evidence of PW-6. Amongst said omissions, material
omissions are that he had stated before the police that
10-12 culprits had pelted stones on the raiding party, so
also he stated before police that when PW-1 was attacked
with sword, he sustained bleeding injury and that PI
Wajale caught hold accused Potya. But he could not
assign reason of absence of above facts in his statement
before police. He has also not specifically identified
the accused in the Court. He does not claim that he had

¶196

seen the accused prior to the incident. So also he has

¶197

stated that he knows accused. Therefore, considering the
involvement of 10-12 alleged decoits in the incident and
that there is no proper identification of accused by PW-
6, his evidence regarding assault on him and PWs 5 & 7 by
the accused by axe is not believable.

¶198

22.The evidence of Nirmala Thakare-Lady Police
Constable [PW-7] is that initially she stated about the
raid carried out by PW-1 on 06.06.2000 more or less as
deposed by PW-1. As regards incident, she stated that as
per the suggestion given by PW-1 they all were proceeding
towards decoits’ vasti where they were halting and
concealing themselves. The decoits smelled their
arrival. They began to pelt stones towards them. About
10-12 culprits were pelting stones. One of the culprits
was armed with sword. Another was armed with axe. The

¶199

decoit who was holding axe in his hand hit axe on the
right hand of PC Dhavale [PW-6]. The same decoit struck

¶200

axe blow on the chest of PC Adhane [PW-5] and he again
gave blow on left palm of PW-6. The said decoit struck

¶201

axe on her [PW-7’s] right thigh. When the said decoit

¶202

aimed a hit of axe, she raised her hands to save herself.

¶203

The blunt side of the axe struck on her right thigh. She
again stated that axe blow struck on her right scalp
muscle. The decoits had attacked the plicemen with
intention to kill them. She identified the accused
Potya, present in the Court, saying that he is the same

¶204

person who had attacked her and other policemen with axe.
She has also stated about giving sword blow by another
decoit to PW-1 and causing injuries to said decoit by PW-
1 by the service revolver.

¶205

23.In the cross-examination of PW-7 in para 11 she
stated that she stated before police that 10-12 culprits

¶206

were pelting stones on the raiding party, that one of
them was holding axe in his hand, another was holding
sword, that a decoit armed with axe had hit axe blow to

¶207

PHC Dhavale [PW-6] on his right palm, that same culprit
had hit axe blow to PHC Adhane [PW-5] on his chest, that
other decoits had attacked policemen with intention to

¶208

kill them, that decoit hit a sword blow on left eblow of

¶209

PC Gafar [PW-4] and that decoit had hit sword blow on

¶210

left arm of PC Khandagale [PW-3] but she could not assign
reason of absence of above facts in her statement before

¶211

police. Thus, the evidence of PW-7 in respect of above

¶212

facts is amounting to material omission in her statement
before police and improvement while deposing before the

¶213

Court, which makes the evidence of PW-7 unreliable. It
is true that as referred above PW-7 has stated that
accused before the Court is the same person, who attacked
her, PWs 5 and 6 with axe, but when there is nothing in

¶214

her evidence to show that she had occasion to see the

¶215

accused prior to the incident and when only once she had
seen the accused at the time of alleged raid, due to
omissions referred to above in her evidence, the evidence
of PW-7 regarding involvement of the accused is not
trustworthy.

¶216

24.The next is the evidence of PI Wajale [PW-8],

¶217

who was attached to Cidco Police Station at the relevant

¶218

time of incident and who was in the raiding party. He

¶219

has stated about the carrying raid on the day of
incident. He further stated that the decfoits learnt
about their arrival and suddenly started pelting stones
towards them. The decoits were carrying with them axes

¶220

and sword. They attacked them with axes and sword. He
stated that he was injured in stone throwing on his right

¶221

side chest and left leg. PC Khandagale [PW-3] and PC
Gafar [PW-4] were injured by the decoits by means of
sword. He stated that LPC Thakare [PW-7] was struck with

¶222

axe, PC Dhavale [PW-6] also received axe blows. He has

¶223

not stated that PWs 5,6 & 7 sustained axe injuries due to

¶224

assault by the accused as alleged by the prosecution.
In-fact, when he was in the raiding party and eye witness

¶225

to the incident, he should have specifically stated that

¶226

the accused assaulted PWs 5,6 & 7 with the axe and caused
them injuries and should have identified accused in the

¶227

Court. Therefore, simply because he apprehended the

¶228

accused when the accused was trying to run away, it
cannot be said that the accused caused injuries to PWs

¶229

5,6 & 7.

¶230

25.PW-9 PSI Thakare – one of the members of the

¶231

raiding party has stated about the raid. He has not
stated about the role of the accused in assaulting PWs

¶232

5,6 and 7 by the axe as alleged by the prosecution. Of
course he has stated about the injuries to the deceased

¶233

decoit. Thus his evidence is of no help to the
prosecution to prove involvement of the accused in the
alleged offence.

¶234

26.For all the reasons discussed above, there is no

¶235

consistency in the evidence of PWs 1,3 to 8 regarding the
role attributed to the accused in assaulting PWs 5,6 and

¶236

7 as per the prosecution case. So also all these
witnesses are police personnels and no independent
witness is examined by the prosecution. There is nothing

¶237

in the evidence of these witnesses that from the hut of
the accused any instrument of house breaking and torch

¶238

were seized. On the contrary as referred earlier PW-1

¶239

has specifically admitted that such instruments were not
seized from the hut of the accused. Another aspect to be
noted is that the accused and the deceased were found in
Dighi Shivar and there was hut of the accused. It is not
the case of the prosecution that the accused, deceased
and others were found with the weapons for committing
house breaking on the road or near hotel or petrol pump
so as to say that they had come together to attract the
offence of preparation of committing the decoity as
alleged.

¶240

27.The next piece of evidence relied upon by the
prosecution is the injury certificates Exhs.64, 65, 66,67
and 68 respectively of PWs 3,4,5,6 and 7. These
certificates have been proved by PW-15 Anjana Thakar –
Medical Officer. She has stated that she examined these
witnesses on 06.06.2000 at around 09.00 a.m. She stated
that she examined PC Khandagale [PW-3] and found abrasion

¶241

on left arm anteriorly and issued certificate Exh.64.
Moreover, on examination of PW-4 Shaikh Abdul Gafar, she

¶242

noticed abrasion on left forearm posteriorly 1 cm in size
caused within 48 hours and incised wound on left forearm

¶243

below the first injury 1 ½ cm x ½ cm x ½ cm. caused
within 48 hours and issued certificate – Exh.65.
Similarly, she stated that on examination of PW-5 PHC
Adhane, she found contusion on chest right side 3 cm x 1
cm caused within 48 hours and issued certificate Exh.66.

¶244

Moreover, she stated that she examined PHC Dhavale [PW-6]
and found abrasion with tenderness with left palm ¼ cm
right base caused within 48 hours and issued certificate
– Exh.67. Moreover, she stated that she examined LPC
Thakare [PW-7] and no external injury was found on her
person and accordingly she issued certificate Exh.68.
Thus, it is clear from the evidence of PW-15 Medical
Officer that the injuries like contusion and abrasion

¶245

with tenderness were found on the persons of PWs 5 and 6
and no injury was found on the person of PW-7. When
allegedly accused assaulted PWs 5,6 and 7 with axe, the
injuries like contusion and abrasion with tenderness
would not suffer. Therefore, it cannot be said that the

¶246

injuries on the person of PWs 5 and 6 were caused with
axe. No injury was found on the person of PW-7.
Therefore, it cannot be said that the accused caused
injuries to PWs 5,6 & 7 with axe as alleged by the
prosecution. It is not case of the prosecution that the

¶247

accused assaulted PWs 3 and 4. Therefore, even if
injuries were found on their person by PW-15, it cannot

¶248

be said that the accused caused said injuries to them.
Therefore, the injury certificate Exh.64 to 68 referred
to above and evidence of PW-15 are of no help to the
prosecution to prove charge against the accused.

¶249

28.PW-18 Medical officer Thorat has deposed that on
06.06.2000 at about 01.00 p.m. he examined PW-1 PI-
Ambildhage and PW-8 API Wajale. He stated that he found
injuries i.e. cut injury on the chest below the left
nipple, lateral side 3 inches X 1 inch caused by sharp

¶250

and hard object, margins were cut, big and red and
lacerated wound on the left lower leg 2 inches x 2 inches

¶251

caused by hard and blunt object on the persons of PW-1

¶252

and issued injury certificate Exh.80. He also stated that
on examination of PW-8 API Wajale, he noticed one
contusion on right knee joint 2 inches x 1 inch caused by
hard and blunt object on the person of PW-1 and issued
injury certificate Exh.81. It is not the case of the
prosecution that the accused assaulted PW-1 and PW-8.
Therefore, the evidence of PW-18 and injury certificate
referred to above are of no help to connect the accused
with the offence alleged against him.

¶253

29.The evidence of PW-13 PSI Jadhav is that on
10.06.2000 he collected information about involvement of

¶254

Jitya alias Jitendra Popat Kale in different crimes, who
was undergoing sentence in Yerwada Jail. He stated that

¶255

he saw said Jitya alive when he visisted Yerwada Jail and
he made report accordingly as per Exh.38 to Assistant
Commissioner-Sonwane. He also found that Jitya was
involved in three cases and collected the copy of FIRs
from different police stations. From his evidence it can
be said that Jitya alisa Jitendra Popat Kale was involved

¶256

in different offences and that the deceased decoit was
not Jitya. But his evidence is of no help to infer that
there was involvement of accused or his son-deceased
Nitya in the crimes of decoity registered in different
police stations.

¶257

30.The evidence of PW-14 PSI Mule shows that he
searched the absconding accused, but they were not found
and the evidence of PW-16-API More shows that he
collected record pertaining to deceased and absconding
accused from places like Shikrapur and Vishrantwadi
Police stations and the said record shows that they were
members of gang of Balliya Bhosale in crime registered at
Vishrantwadi Police Station and that cases of murder,
robbery, decoities and rape were pending. On the basis
of his evidence, it can be said that there was
involvement of deceased accused in crime registered at
Vishrantwadi Police Station. But it cannot be said that
there was involvement of this accused Popat Kale in the
above said crimes.

¶258

31.The evidence of Pws.11,12 and 22 is respectively

¶259

in respect of carrying different muddemal articles to
Chemical Analyzer's office, carrying blood samples to
said office and carrying samples of skin of deceased
Nitin Popat Kale to Forensic Laboratory, Mumbai. Said
evidence is of no help to connect the accused with the
offence alleged against him.

¶260

32.The evidence of PWs.23 and 24 is in respect of

¶261

seizure of clothes of deceased Nitin as per panchanama
Exh.117 and said panchanama shows that the clothes i.e.
pant, under pant and baniyan respectively Exh.14,15 and
16 of deceased Nitin had bloodstains. Thus, the evidence
of Pws.23 and 24 and panchanama Exh.117 are of no help to
connect the accused with the alleged offences. The
evidence of Pws. 19 and 25 of the Investigating Officers

¶262

is in respect of investigation made by them and they have
no direct knoweldge of the involvement of the accused in
the incident. Therefore, their evidence is of no help to

¶263

attract any offence against the accused.

¶264

33.The next piece of evidence relied upon by the

¶265

prosecution is seizure of weapons and bullet as per
panchanama Exhs.13 and 17. Exh.13 is panchanama of
seizure of two country made revolvers and one sword
seized by PW-1 PI Ambildhage in presence of panchas
Govind Gosavi [PW-1] and Sujit Khandale. Both have
stated regarding seizure of these articles. It appears

¶266

from the panchanama Exh.13 that two country made
revolvers, sword and one axe – total four articles were
seized from the place from where the injured Jitya alias

¶267

Jitesh, who was in-fact Nitya alias Nilkanth, son of the
accused, had attacked on the police. Since these

¶268

articles were not seized from the accused Potya – father
of deceased Nitya, seizure of these articles is of no
help to the prosecution to connect the accused.
Panchanama Exh.13 further shows that one axe was seized

¶269

on production of the same by PI Wajale [PW-8], who had

¶270

allegedly taken the said axe in possession from accused.

¶271

There is no panchanama showing that PI Wajale [PW-8] had
seized said axe from the accused. Therefore, seizure of
axe is also of no help to the prosecution to state that
accused used said axe in assaulting PWs as alleged by the
prosecution.

¶272

.Panchanama Exh.13 further shows that PI-1 had

¶273

seized one axe, one Jambiya, one knife and one iron waist
belt from the hut where 8-10 decoits were stayed. On the
basis of seizure of said article3s, it cannot be said
that the accused was in possession of any of the said
weapons. When it is not specific case of the prosecution

¶274

that particular weapon i.e. axe was seized from the
accused, seizure of above said articles/weapons is of no
help to the prosecution to connect the accused.
Moreover, the articles which were seized as per
panchanama Exh.13 were not articles of house breaking,
which are generally used by decoits in committing
decoity.

¶275

34.Exh.17 panchanama shows that PI Wajale [PW-8] in
presence of panchas, PW-2 and Sujit Khandale seized empty
cartridge of revolver from the spot of incident. It
appears that said empty cartridge is of the bullet of
service revolver which was used by PW-1 to allegedly
prevent deceased decoit from making attack on the raiding
party. Exh.18 is panchanama of seizure of service

¶276

revolver of PW-1, and his Baniyan and Shirt and said
panchanama was prepared by ACP Sonawane [Exh.25] in
presence of above said panchas. Seizure of articles as
per this panchanama is of no help to the prosecution to
prove charge against the accused as service revolver was

¶277

of PW-1 and seized clothes were on his person at the time

¶278

of incident and when it is not the case of the
prosecution that accused assaulted PW-1.

¶279

35.Now coming to the evidence of defence witness
Rukmini Kale, who is wife of the accused, she has
categorically stated that she has five daughters.
Deceased Nilkanth was born after her first daughter

¶280

Bitkul. Her house consists of a hut. In the night of the
incident, she, her husband, five daughters and her son
Nilkanth were asleep. Around 5.30 a.m. when they all
were asleep, policemen suddenly came into their house.
They dragged out her daughters Bakri and Bitkul. They

¶281

assaulted them. The policemen took out her husband and
her son Nilkanth. Nilkanth was requesting policemen not

¶282

to attack Bitkul and Mangal. The policemen took out
Nilkanth in front of house and tied his both hands by
means of handkerchief. They tied his legs with a rope.
He was laid down on his left portion. PW-1 pulled down
his pistol from his waist and fired a shot on his right

¶283

thigh. The bullet went through right thigh and went
grazing his private part. She cried and requested
policemen not to kill her son. The hands and legs of her

¶284

husband were tied by policemen. Nilkanth died on the
spot. About 20-25 policemen encircled her hut. Nilkanth

¶285

was carried away in a jeep. Her husband was also

¶286

apprehended by police and was taken to Waluj Police
Station. She was cross-examined at length on behalf of

¶287

the prosecution, but her evidence is not shattered.
Thus, the evidence of wife of the accused is in
consonance with the defence plea of the accused.

¶288

36.In the above all circumstances, it appears that

¶289

PW-1 carried raid as he was suspecting involvement of
Jitya alias Jitesh in offence of preparation of decoity
and he assaulted Nitya alas Nilkanth, son of the accused
and DW-Rukminibai and on knowing that the decoit to whom
he caused injury by service revolver is Nilkanth son of
the accused and not Jitya, the possibility of his (PW-1)
involving accused in the case to save himself from the
death of deceased Nitya cannot be ruled out and as such
there is substance in the defence version.

¶290

37.For all the reasons discussed above, oral as

¶291

well as documentary evidence referred to above adduced by
the prosecution is not sufficient to establish
ingredients of offences punishable under sections 307,
399, 353, 332, 336, 400, 401 and 402 of the Indian Penal

¶292

Code and under sections 3 and 4 read with section 25 of
the Arms Act beyond reasonable doubt and the Trial Court
has rightly acquitted accused of the said offences by the
impugned judgment and order. Said view taken by the
Trial Court is reasonable and possible view. There is no
error in appreciating evidence by the Trial Court.
Therefore, the appeal being devoid of merits, same is
liable to be dismissed. Accordingly, we dismiss the
same. The bail bond of the accused stands cancelled.

¶293

38.The Criminal Application No. 1343 of 2002 filed
by the accused for compensation is disposed of, as no

¶294

case is made out for awarding compensation under section
250 of the Code of Criminal Procedure.

¶295

[S.M.GAVHANE,J.] [T.V. NALAWADE,J.]

¶296

snk/2018/JAN18/ crap269.02

The State of Maharashtra v. Poty @ Popat Parkhiya Kale

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Poty @ Popat Parkhiya Kale

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bibhishan Rajaram Kale Vs the State of Maharashtra and Ors.

The State of Maharashtra Vs Sandip Dadarao Sable and Ors.

Dadasaheb Dattatraya Lagad Vs the State of Mah and Ors.

Vishwas Vasantrao Muglikar Vs Jyoti Murlidhar Muglikar

State of Maharashtra Vs Shivaji Bansi Karpe and Ors.

The State of Maharashtra Vs Babu Ghodake