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IN THE HIGH COURT OF BOMBAY
V.K. Tahilramani and Anuja Prabhudessai, JJ.
Mohan Ganpati Sathe – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal Nos. 59 & 110 of 2007
Decided On : 25-07-2016
FIR - Criminal Offences - IPC, Indian Arms Act - 143, 147, 148, 149, 302, 307, 326, 30 - The court acquitted the accused No. 1 of offences under sections 302 and 307 of the IPC and section 30 of the Indian Arms Act. The accused Nos. 1, 3 to 8 were held guilty of offence under section 325 r/w. 34 of the IPC. The accused No. 2 was acquitted in respect of all the charges. The judgment was based on the suppression of facts by the prosecution, material contradictions and omissions in the evidence of the witnesses, and the medical evidence indicating the possibility of accidental firing of the gun. The court also found that the prosecution failed to prove that the accused were aggressors and that the injuries sustained by the accused were not explained. The appeals were allowed and the impugned order of conviction and sentence was set aside.
Fact of the Case:
The accused were tried for various offences including murder, attempted murder, and assault. The incident arose from a previous altercation involving alleged eve teasing. The accused and the deceased were involved in a scuffle, during which the accused No. 1 fired a gun shot at the deceased, resulting in his death. The accused claimed that the gun went off accidentally while the witnesses tried to snatch it from the accused No. 1. The accused and the witnesses sustained injuries during the incident.
Finding of the Court:
The court found that the evidence of the witnesses suffered from material contradictions and omissions, and was not consistent. The medical evidence indicated the possibility of accidental firing of the gun, supporting the defence's claim. The court also found that the prosecution failed to prove that the accused were aggressors and that the injuries sustained by the accused were not explained. The court concluded that the appeals were allowed and the impugned order of conviction and sentence was set aside.
Issues: The issues in the case included the credibility of the witnesses' evidence, the nature of the injuries sustained by the accused, and the possibility of accidental firing of the gun.
Ratio Decidendi: The court's decision was influenced by the suppression of facts by the prosecution, material contradictions and omissions in the evidence of the witnesses, and the medical evidence indicating the possibility of accidental firing of the gun. The court also considered the failure of the prosecution to prove that the accused were aggressors and the unexplained injuries sustained by the accused.
Final Decision: The appeals were allowed and the impugned order of conviction and sentence was set aside.
Anuja Prabhudessai, J.
1. These appeals arise from judgment dated 29.12.2006 passed by the learned Additional Sessions Judge, Satara in Sessions Case No. 53 of 1998. The appellant in Criminal Appeal No. 59 of 2007 was the accused No. 1 whereas the appellants in Criminal Appeal No. 110 of 2007 were the accused Nos. 3 to 8 in Sessions Case No. 53 of 1998 and shall be hereinafter referred to as accused as arrayed before the trial court.
2. The aforesaid accused along with one Shivprasad Sathe (accused No. 2) were tried for offences punishable under sections 147, 148 and 326 r/w. 149 of the IPC. The accused No. 1 was also charged for offence punishable under sections 302 and 307 of the IPC and section 30 of the Indian Arms Act.
3. By the impugned judgment the learned Additional Sessions Judge has convicted and sentenced the accused as under:
(i) Accused No. 1 guilty of offence under sections 302 and 307 of the IPC and section 30 of the Indian Arms Act. The accused No. 1 has been sentenced to undergo rigorous imprisonment for life and fine of Rs. 2000/- i/d. simple imprisonment for three months for the offence punishable under section 302 of the IPC, RI for 7 years and fine of Rs. 2000/- i/d. SI for three months for offence punishable under section 307 of the IPC and RI for six months and fine of Rs. 1000/- i/d. SI for two months for offence punishable under section 30 of the Indian Arms Act.
(ii) The accused Nos. 1 and 3 to 8 have been held guilty of offence punishable under section 325 r/w. 34 of the IPC and have been sentenced to suffer RI for 5 years and fine of Rs. 1000 each i/d. to undergo SI for 1 month.
(iii) The accused No. 2 has been acquitted in respect of all the charges.
4. Being aggrieved by the conviction and sentence the accused Nos. 1 and 3 to 8 have preferred the aforesaid appeals. The accused Nos. 6 and 8 died during the pendency of the appeal. Consequently by order dated 1.2.2016, the appeal against these two accused is held to be abated.
5. The prosecution case in short is as under:
The accused Nos. 1 and 3 to 6 are related to each other and accused No. 8 is the uncle of accused No. 7. The deceased Manik was the son of Bajrang and the brother of the complainant PW6 and PW11. PW8 is their paternal uncle and PW10 is a friend of PW6. The accused as well as the deceased Manik, PW6 Sambhaji Yadav and the eye witnesses viz. PW8 Shankar Yadav, PW10 Mahendra Gadekar and PW11 Pandharinath Yadav are the residents of Durgalwadi, Taluka Koregaon, District Satara. According to the prosecution on 17.11.1997, the accused Nos.3, 4 and 5 assaulted PW10 Mahendra for having teased the sister of accused No. 3 Rajendra. PW10 told the accused that he was not involved in any such incident. He also apologised to the accused for preconceived misunderstanding, if any. PW10 narrated this incident to his friend PW6 Sambhaji on the same day. PW6 told PW10 to forget the incident since he had already apologised.
6. On 19.11.1997 at about 8.00 p.m. PW6 and PW10 went to a Pan shop and thereafter sat at Janai Devi Temple till about 9.00 p.m. While they were returning home and had reached near the house of Hanmant Desai, they heard some people saying "hana mara" (thrash/assault). They turned back and saw accused Nos. 3 to 8 advancing towards them armed with gupti, cycle chain, sticks, etc. The accused Nos. 3 to 8 assaulted them and took them to the rear side of the house of Hanmant Desai. The accused also assaulted Bajrang, Shankar (PW8), Pandharinath (PW11), and Manik (the deceased), who had come to the place of the incident on hearing the shouts of PW6 and PW10.
7. In the meantime, the accused No. 1 came near the place of the incident with a gun and that he fired a gun shot at Manik. Said Manik sustained injuries and fell on the ground. The accused No. 1 fired another gunshot in the direction of Pandharinath and thereby attempted to cause his death. The accused thereafter left the place of the incident. PW6 Sambhaji and PW8 Shankar took the inj
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