Ganpat Aher & Ors. Vs. State of Maharashtra & Ors.  INSC 366 (7
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 173
OF 2007 EKNATH GANPAT AHER & ORS. ..Appellants Versus STATE OF MAHARASHTRA
& ORS. ..Respondents WITH CRIMINAL APPEAL NO. 174 OF 2007
Mukundakam Sharma, J.
this judgment and order, we propose to dispose of the two appeals filed by the
fourteen accused persons who have been convicted and sentenced by the 2nd
Ad-hoc Additional Sessions Judge, Ahmednagar by judgment and order dated
10.09.2004 which has been upheld by the High Court of Bombay, Aurangabad Bench.
Originally, there were altogether 38 accused persons, out of which two were
juveniles. Consequently, the trial Court of the 2nd Ad-hoc Additional Sessions
Judge, Ahmednagar tried 36 accused persons and by judgment and order dated
10.09.2004 convicted 35 accused persons of the offences under various sections
of the Indian Penal Code [for short `IPC'] including the offence punishable
under Section 302 read with Section 149 IPC and the remaining one accused
person was acquitted.
aggrieved by the aforesaid judgment and order of conviction and sentence passed
by the trial Court, all the 35 accused persons filed an appeal being Criminal
Appeal No. 617 of 2004 before the High Court of Bombay, Aurangabad Bench. By
its judgment and order dated 14.03.2006, the High Court acquitted 21 out of the
35 convicted accused persons while upholding the order of conviction and
sentence of the remaining 14 accused persons.
aggrieved by the aforesaid order of conviction and sentence passed by the High
Court, two appeals have been filed by the 14 convicted persons which we have
counsel appearing for the parties have taken us through the judgments of the
Courts below against which the present appeals are filed as also through the
evidence on record.
we proceed to discuss the issues that arise for our consideration, it would be
relevant and appropriate to recapitulate the facts out of which the present
Accused numbers 1 to 36 were charge-sheeted and sent for trial for committing
offences including of being members of an unlawful assembly, for causing
grievous hurt in prosecution of the common object of the unlawful assembly and
also for committing murder. The said 36 accused persons were charge-sheeted
under Sections 143, 147, 148, 149, 325/149, 326/149, 324/149, 504/149, 506/149,
337/149, 338/149, 341/149, 307/149 and 3 302/149 of the IPC. In addition to the
aforesaid offences, the accused persons were sent for trial for possession of
weapons in contravention of the provisions of the Arms Act and thereby
committing offence under Section 4 read with Section 25 of the Arms Act.
criminal case [FIR Crime No. 138/2003 - Exh.138] was registered on 12.09.2003
on the basis of the complaint of one Bajirao Bhaguji Zavare [PW2]. The said
complaint was recorded by Mohan Bankar [PW-12], P.S.I. attached to the Police
Station, Parner who has stated that prior to the recording of the aforesaid
complaint of PW-2, information was received on telephone by the Parner Police
Station from the Kotwali Police Station, Ahmednagar regarding the admission of
injured and the deceased in the hospital of Dr. Deshpande. On receipt of the
said information, PW-12 immediately rushed to the said hospital. On reaching
the hospital, he had drawn the inquest panchnama of the two dead bodies of
deceased Balasaheb Rambhau Salunke and Vilas Rambhau Salunke, who had died in
said hospital, he also recorded the complaint of PW- 4 2 and thereafter he
returned to the Police Station whereafter the aforesaid FIR was registered.
9. It is
also alleged that both the accused party as well as the complainant party were
in dispute, although, they are residents of different villages. It has also
come on record that some of the accused persons and the complainant are
relatives. There is a temple of Khandoba situated at village Kamatwadi and the
same was initially managed by Khandoba Deo Panch Committee constituted of the
respectable villagers. Subsequently, Shri Khanderao Deosthan Trust was given
the responsibility of managing the said temple. It is also alleged that Shri
Khanderao Deosthan Trust, of which some of the accused persons are members,
owns and holds several properties at village Kamatwadi including the lands Gat
Nos. 166, 168 and 170, although, there is a serious dispute with regard to the
title and possession of land, particularly, Gat No. 170.
deceased and the complainant party claims title in respect of 2/3rd of the land
Gat No. 170 contending, inter alia, that the said land was previously owned by
Bhosales from whom some members of the complainant party had 5 purchased the
said land. It is needless to state at this stage that there are civil suits
instituted by both the parties and pending in respect of title and possession
of the aforesaid land. An order of status quo was also passed by the trial
Court in respect of the said land under its order dated 06.08.2003.
alleged that on 12.09.2003 at about 10.00 a.m.
Bajirao Bhaguji Zavare along with Balasaheb Rambhau, Vilas Rambhau, Ratanbai
Sulbha, Kantabai, Pandurang Maruti Hingade and others went to the land Gat No.
170 for removing tomato plants and grass for cleaning the lands. At about 1.00
p.m., a mob of about 75- 100 persons of Kamatwadi came on the top of north side
hill situated adjacent to land Gant No. 170. It is alleged that the members of
the said mob while scaling down the hill also pelted stones, upon which, the
members of the complainant party started running to save their lives. They were
chased by the accused persons and thereafter it is alleged that the accused
persons beat up the members of the complainant party by sticks, iron rods and
swords and thereby seriously injuring Balasaheb Rambhau Salunke, 6 Vilas
Rambhau Salunke and some other persons belonging to the complainant party. All
the aforesaid injured persons were rushed to the hospital where Balasaheb
Rambhau Salunke and Vilas Rambhau Salunke were pronounced dead whereas the rest
of the injured persons were admitted as indoor patients. It is also to be noted
that a number of accused persons, namely, A-7, A- 10, A-12, A-13, A-20, A-23,
A-25, A-27, A-28, A-31, A-33, A-34, A-35 & A-36 received different kinds of
injuries including grievous injuries on the vital parts. It is also alleged
that Bajirao Bhaguji Zavare [PW2], Pandurang Maruti Hingade [PW-5], Sulbha
Vilas Salunke [PW-8] and Rathan w/o Balasaheb Salunke [PW-9] were eye-witnesses
to the said occurrence. Apart from the aforesaid injured eye-witnesses, several
other members of the complainant party namely, Janabai Hingade, Babaji Hingade,
Uttam Hingade, Zumberbai Pandurang Hingade were also injured.
completion of the investigation, police submitted chargesheet against 36
accused persons inasmuch as two of the 38 accused persons were found to be
juvenile. On 7 completion of the trial, the trial Court convicted 35 accused
persons while acquitting the remaining one accused person. The High Court, on
appeal, acquitted 21 of the 35 convicted accused persons. Hence, the remaining
14 convicted accused persons have filed the present two appeals.
U.R. Lalit, learned senior counsel appearing for the appellants submitted
before us that the evidence against the 35 accused persons being similar in
nature, the Courts below committed an error of law and facts in acquitting the
21 out of the said 35 accused persons while maintaining the conviction and
sentence of the remaining 14 accused persons. He submitted that this was done
despite the fact that there is no independent and specific evidence to prove
and establish that the said convicted persons have played any independent and
separate role in committing the aforesaid offences. It was also submitted by
learned senior counsel that none of the eye-witnesses had named any of the
accused ascribing to him any specific role in causing injuries to the deceased
Balasaheb 8 Rambhau Salunke and Vilas Rambhau Salunke or to any other injured
Lalit, after drawing our attention to the evidence of the witnesses, submitted
that there is an omnibus statement involving all the accused persons in the death
of Balasaheb Rambhau Salunke and Vilas Rambhau Salunke as also for injury to
some of the members of the complainant party and that there is no independent
evidence to show the specific role played by each one of them in the incident.
It was also submitted by him that there is total absence of any explanation in
respect of the injuries sustained by the accused persons, some of whom had even
sustained grievous injuries. Relying on the same, it was submitted by him that
when a large mob of about 75-100 people descended to the place of occurrence
and there were a number of people from the complainant side also present, it
was not possible to see as to what really happened during the melee and
therefore when 22 of the 35 accused persons were acquitted in view of lack of
specific evidence, the remaining 14 persons should also have been acquitted.
the light of the aforesaid submissions of the learned senior counsel appearing
for the appellants, we have examined the records and also heard the learned counsel
appearing for the State.
there is a dispute subsisting between the complainant party and the accused
persons regarding the land of Gat No. 170. According to the accused persons,
the said land belongs to the Trust whereas the complainant party alleges that a
part of the said land had been purchased by some of them from Bhosale group and
they therefore tried to enter into possession of the same by removing tomatoes
planted by PW- 4 who was cultivating the said land. The incident happened at
about 1.00 p.m.
fateful date when a mob of about 75-100 people descended to the place of
occurrence. In the melee that followed PWs 2, 5, 8 & 9 received injuries
whereas Balasaheb Rambhau Salunke and Vilas Rambhau Salunke received grievous
injuries and consequently they were declared dead at the hospital. A number of
accused persons also received injuries including some having received grievous
injuries but no explanation is 10 forthcoming regarding the said injuries from
the prosecution side.
High Court based its order of conviction and sentence regarding the appellants
on the ground that the accused had admitted that it was Balasaheb Rambhau
Salunke and Vilas Rambhau Salunke who had received grievous injuries on account
of assault by the mob and that the right of private defence of protecting the
possession of the land Gat No. 170 was not available to the accused persons
inasmuch as the accused had not been able to establish by unimpeccable evidence
that Devasthan Trust or the accused who were injured were in possession of land
Gat No. 170.
also held by the Courts below that the accused persons who had sustained
injuries were members of the unlawful assembly which was formed with the common
object of committing murder of both the deceased persons and it was in
prosecution of the common object that the accused persons also caused injuries
to the said eye- witnesses. The aforesaid findings were recorded by both 11 the
Courts below despite recording a finding that not even a single eye-witness was
able to categorically name the particular accused who had inflicted injuries to
the deceased or to any of the injured witnesses and that only vague and omnibus
statements were made.
High Court disbelieved the statement of Rathan w/o Balasaheb Salunke [PW-9]
with regard to identification of the assailants on various grounds, one of
which was that her statement came to be recorded only on 18.11.2003, i.e., the
date on which the charge-sheet against the accused persons came to be filed.
Despite the fact that a number of accused persons had received injuries and
also despite the fact that no reason was forthcoming from the prosecution in
regard to the injuries suffered by the accused persons, the Courts below
discarded the said injuries holding that the said injuries were extremely minor
and that injured accused persons could not prove that they had been assaulted
by the complainant party.
Courts below were of the opinion that stand taken by the accused persons was
not enough to discard the credible evidence of the injured eye-witnesses.
our considered opinion the aforesaid approach of the Courts below was
incorrect. Nine persons including four witnesses belonging to the complainant
party received injuries whereas as many as 14 accused persons received injuries
including some who even suffered grievous injuries.
there was a mob of about 75-100 persons who descended from the hill side to the
place of occurrence by pelting stones and a melee followed. Not even a single
witness including the injured witnesses could specifically state as to who had
caused what injury either to the deceased or to the injured witnesses or to the
accused. A very general statement has been made that the accused persons were
armed with deadly weapons and caused injuries to the complainant party. In a
situation where a mob of 75-100 persons entered into a clash with the
complainant party it could not have been possible for any of the witnesses, who
would naturally be concerned with their own safety and to save themselves from
the assault, to see as to who had inflicted what type of injury either on the
deceased or on the injured witnesses.
view of such omnibus and vague statements given by the witnesses, the Court
below acquitted as many as 21 accused persons on the ground that there is no
evidence on record to implicate them in the offences alleged. There being no
other evidence to specifically ascribe any definite role to any of the 14
appellants herein, it is difficult to hold that any of the present appellant
had inflicted any particular injury on any of the deceased or the injured
witnesses. Unless there is cogent and specific evidence attributing a specific
role in the incident to the accused persons, who have themselves been injured
and there being no explanation forthcoming as to such injuries, it would be
unsafe to pass an order recording conviction and sentence against the
appellants, moreso when the prosecution has produced, in support of its case,
witnesses who are inimical to the accused persons. It is crystal from the records
that land of Gat No. 170 is the bone of contention between the complainant
party and the accused. As noted above, civil cases with regard to the question
of title and ownership to the said land have been instituted by both the
accused and the complainant party which are pending final adjudication.
21. It is
an accepted proposition that in the case of group rivalries and enmities, there
is a general tendency to rope in as many persons as possible as having
participated in the assault. In such situations, the Courts are called upon to
be very cautious and sift the evidence with care. Where after a close scrutiny
of the evidence, a reasonable doubt arises in the mind of the Court with regard
to the participation of any of those who have been roped in, the Court would be
obliged to give the benefit of doubt to them.
is no doubt that the incident which happened on 12.09.2003 was an unfortunate
incident in which two persons have lost their precious lives. Not only the
members of the complainant party received injuries, the members of the accused
party were also injured during the course of the incident and some of the
accused persons even sustained grievous injuries. A bare look at the injury
report, which is contained in the impugned judgment, would prove and establish
the said fact.
appreciation of the entire evidence on record, we cannot uphold the findings
recorded by the High Court as 15 also by the learned trial Court. In our
considered opinion, the aforesaid findings are against the basic canons of the
Evidence Act and the penal law.
Consequently, we allow both the appeals and set aside the order of conviction
and sentence passed against the appellants herein and acquit them giving them
the benefit of doubt. The appellants accused shall be released forthwith unless
they are required in some other case and those who are on bail, their bail
bonds shall stand discharged.
............................................J [V.S. Sirpurkar]
............................................J [Dr. Mukundakam
May 7, 2010.