High Court
Legal Reasoning
{1} CRI APPEAL 14 OF 2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 14 OF 2006The State of Maharashtra Through Dy. S.P. Shevgaon Division,Shevgaon for the complainantNanasaheb Balaji Bhalerao, r/o Mahalaxmi Hivare, Tq.Newasa, Dist.Ahmednagar.….Appellant Versus1.Maruti Ashraji Kedar2.Narayan Ashraji Kedar3.Annasaheb Ashraji Kedar4.Rama Yadav Bhalerao5.Sudhakar Yadav Bhalerao 6.Ashok Laxman Bhalerao7.Sanjay Sudhakar Bhalerao8.Laxman Yadav Bhalerao9.Karbhari Yadav Bhalerao10.Gowardhan Rama Bhalerao11.Kiran Rama BhaleraoAll r/o. Mahalaxmi HivareTq.Newasa, Dist.Ahmednagar. ….Respondents(Ori. Accused) …..APP for Appellant : Mr.S.S.Dande Advocate for Respondent nos.1 to 3 : Mr.S.V.Natu Advocate for Respondent nos.4 to 11 : Mr.C.K.Shinde ….. CORAM : ABHAY S. WAGHWASE, J. DATE : 08 AUGUST, 2025 {2} CRI APPEAL 14 OF 2006JUDGMENT :- 1.Instant appeal takes exception to the judgment and order ofacquittal passed by learned IInd Additional Sessions Judge,Shrirampur in Sessions Case No.36 of 2003, thereby acquittingpresent respondents from offence under Sections 325, 504, 506 r/w149 of the Indian Penal Code, under Sections 143 and 148 of IndianPenal Code (IPC) and under Section 3 (1) (X) of the Scheduled Casteand Scheduled Tribes (Prevention of Atrocities) Act (hereinafterreferred as “the SC and ST Act”). 2.During pendency of the appeal, respondent no.1 Maruti AshrajiKedar has expired. His death certificate is already placed on record.Therefore, appeal is abated as against respondent no.1. BRIEF FACTS OF THE CASE3.In nutshell, eleven accused (present respondents) werechargesheeted by Sonai Police Station on allegations thatcomplainant and accused, who have agricultural lands adjoining toeach other, were on cross terms with each others. The incident inquestion was triggered because accused were grazing their live stockin the field of complainant. The same was objected, as a result ofwhich, there was caste abuse and during the day of 17-08-2001, 2-3 {3} CRI APPEAL 14 OF 2006instances took place, where there was encounter between accusedand complainant party on one or other count, during which therewas said to be assault by accused persons by means of axe, iron rod,stick, kick and fists blows etc. PW1 Nanasaheb Balaji Bhalerao lodgedreport in consequence to which, FIR was registered and investigatedby PW8 Vasant Godhaji Sanap, who after gathering sufficientevidence, chargesheeted accused persons for above offences and theywere made to face trial before IInd Additional Sessions Judge inwhich prosecution relied on oral evidence of ten witnesses, apartfrom documentary evidence comprising of FIR, spot panchanama,injury certificates etc. Defence denied to lead any evidence. On appreciation of oral and documentary evidence, learnedtrial Judge reached to a finding that prosecution failed to prove thecharges and acquitted the accused from all offences by judgment andorder dated 09-08-2005. Aggrieved by the same, State has come up in appeal by raisingvarious grounds as stated in appeal memo. SUBMISSIONSOn behalf of appellant State :4.Learned APP took this Court through the evidence of {4} CRI APPEAL 14 OF 2006prosecution witnesses, more particularly, PW1 Nanasaheb, PW3 Balu,PW7 Shobha and would submit that they are injured victims. Theyhave narrated the incident that took place on 17-8-2001. LearnedAPP pointed out that, the first instance took place at 08:00 a.m. onaccount of grazing cattle by accused no.1 in the field of complainant.When complainant objected, accused nos.1 Maruti, 2 Narayan and 3Annasaheb hurled caste abuses. Then at 04:00 p.m. she-buffalo ofaccused no.8 Laxman Bhalerao was grazing in the field ofcomplainant party. When mother and sister of complainant objectedfor the same, out of annoyance, there was caste abuse and beating.Learned APP pointed out that PW4 Laxman Borde is an independenteye witness. The next incident took place at 06:30 p.m. whencomplainant and his father were going towards their house onBicycles. At that time, in the backdrop of incident that took place at04:00 p.m., accused nos.1, 2, 5, 6, 7 and 11 intercepted them andbeat them by axe, iron rod and sticks. Learned APP submits that, all witnesses are consistent.According to him, accused persons were armed with deadly weaponslike axe, iron rods, sticks. They had formed unlawful assembly withcommon object to assault complainant party. Thus, according tolearned APP, necessary ingredients for attracting offence under {5} CRI APPEAL 14 OF 2006Sections 141, 143, 148, 149 of the IPC was very much available inthe evidence adduced by prosecution. He would further emphasizethat accused persons had put to use the articles held by them causingbleeding injury to the injured, more particularly to PW3 Balu. According to him, Medical Expert, who examined and treatedwitnesses is examined as PW9. Thus, according to him even chargeof 325 of the IPC was brought home. He pointed out that as therewas caste abuse, Dy. Superintendent of Police ranking officer PW8Vasant carried out investigation. That, caste certificates wereprocured and made part of the investigation. Resultantly, it is hissubmission that even charge for commission of offence under the SCand ST Act was made out. Hence, he would submit that there wasclinching and overwhelming evidence. However, learned trial Courtfailed to consider and appreciate the same and also did not considerthe settled legal position. He pointed out that delay was sufficientlyexplained because injured were taking treatment and moreover,attempts of complainant to lodge report went futile as concernedPolice did not take cognizance of the report and therefore, postal FIRwas required to be filed. However, according to him, when a fullproof case was made out, learned trial Court ought not to haveacquitted the accused. According to learned APP, the impugned {6} CRI APPEAL 14 OF 2006judgment is patently perverse and so he seeks indulgence by allowingthe appeal.On behalf of Respondents :5.Per contra, learned counsel for respondent nos.1 to 3 andlearned counsel for respondent nos.4 to 11 supported the judgmentof acquittal by submitting that prosecution has miserably failed tobring home the charges. They would submit that there are crosscomplaints. That, crime has been registered against presentcomplainant party, which is first in point of time. That, there isadmission to that extent. That, present FIR, apart from being filedafter inordinate delay, is mere counter blast and apparently false one.Learned counsel pointed out that witnesses are inconsistent. That,their evidence is full of material omissions suggesting improvementand exaggeration. That, each aspect and evidence has beenmeticulously analyzed and appreciated by the learned trial Court andhence, end result was obviously failure to prove the charges.According to learned counsel, none of the ingredients for any of thecharge being available, there is no illegality in the impugnedjudgment. {7} CRI APPEAL 14 OF 2006EVIDENCE ON RECORD 6.In support of its case, prosecution has adduced in all tenwitnesses. Sum and substance of their evidence is as under : PW1 Nanasaheb Balaji Bhalerao is complainant. At exh.47,regarding occurrence, he deposed as under: “We are having our landed property gat no.35 at Mahalaxmi Hivre. Theaccd.no.1 is having his landed property at the eastern side of property andadjacent to our bandh. The accd.no.1 and his 3 brothers along with theirfamily members are residing in their landed properties. Since the accd, no.1is having his landed property adjacent to our landed property, theaccused/and his family members are destroying the bandh of the popertyand releasing cattles in our lands for grazing. Whenever we have askedabout the destroying of bandh and releasing of cattles in the landedproperty for grazing to the accused, the accd.no.1 and his brothers areabusing me saying as "MAHARDE, DHEDJE, LAI MAJLE, YANA KHUP JADAZALE, YACHEADE PAVAWE LAGE... Since the accused are uttering thesewords by pointing our caste, I myself and my caste was Insulted. Prior toincident in the case, a litigation was going on in between myself andaccd.nos.4,5,8 and 9 in respect of the consolidation scheme, in the Court.The litigation as pending was decided in my favour in the year 1990. 3. The incident in the case took place on 17.8.2001. In the relevantperiod there vas a crop of Bajri & Hulga in my landed property. At therelevant time I was present at my we vasti.At the relevant time of incident at 8 a.m. I noticed cattles ofaccd.no.1 and his brothers while grazing in the crop of Bajri in my field.Therefore, I reached in the field and drove the cattles from the crop of Bairi. {8} CRI APPEAL 14 OF 2006Since I drove the cattles of aced. no.1 and his brothers from my crop,aced.no.1 and his brothers Narayan and Annasaheb became annoyed. At therelevant time accd. No.1, his brothers Narayan and Annasaheb were presentat their vasti and aced.no.1 Narayan and Annasaheb abused me by saying &his brothers as “MAHARDE DHEDGE LAI MAJLE" and thus abused me bypointing my caste.4. On the same day at about 4 p.m. my mother and sister noticed theshe-buffalo of accd. Laxman while grazing in the crop of Hulga in ourlanded property and at that time accd. Laxman was with his she-buffalo.Therefore, my mother and sister asked accd.Laxmam to take out his she-buffalo from crop of Hulga and on that count he became annoyed. The cropof Hulga in our landed property was just adjacent to our house and to thehouse of accused Laxman. At the relevant time accd. Laxman and femalemembers from his family including his wife Samindarabai abused mymother and sister and assaulted them. At the time of the above incident, theaccd. Maruti was passing from the road. At that time accd. Maruti stated toaccd.Laxman as "yanche Ghar-dar Aapan Khalas Karun Taku Sandhyakalparyant."5. On the relevant day of incident at about 6.30 p.m. I myself and myfather were proceeding towards our vasti by riding on the bicycle. Whileproceeding, we reached near the vasti of accd. Karbhari. At the relevanttime the accd. Rama, Laxman, Sudhakar, Kiran Gowardhan, Ashok andSanjay were present having sticks, iron bars and axes in their hands.At the relevant time, accused Karbhari restrained us from proceedingsfurther. When we tried to proceed further, the accused Karbhari, Sudhakar,Rama, Laxman, Ashok, Sanjay, Kiran and Gowardhan started to assault meand my father. Since the accused started to assault me and my father, therewas shouting and on hearing noise of shouting, my mother and sister-in-law(bhaujay) were coming towards the spot. When my mother and my sister inlaw were coxing towards us, the accd. Maruti ,Anna and Narayan restrained {9} CRI APPEAL 14 OF 2006them, assaulted them. At the relevant time, accd. Maruti stated to mymother as 'Maharde, Dhedge Lai Majle, Yana Aaj Jivant Theu Naka”. Theaccd,nos, 1 to 3 after assaulting my mother and sister-in-law came towardsus to assault us. The accd, nos,1 to 3 instigated the other accused to assaulton us. At the relevant time the persons residing on the near vastisseparated the incident. During the incident, the accd. assaulted me, myfather, mother and sister-in-law and, therefore, we sustained the injuries.We sustained bleeding injuries and, therefore, blood stains came on thecloths on our persons. Then my brother Bhausaheb brought the private jeepand took us at Civil hospital, Ahmednagar. I sustained injuries on my waistand other parts other of body. My father sustained injuries on his head. AtCivil hospital, Ahmednagar I myself, my father and my sister in law wereadmitted in the hospital.”PW2 Haribhau Suryabhan Gade is spot pancha. Spot panchanama isat exh.50.PW3 Balu Madhav Bhalerao is father of complainant. At exh.52,regarding occurrence, he deposed as under: “The incident in the case took place before about 2 ½ yrs. On the relevantday of incident in the morning time the she-buffalo of accd. Rama wasgrazing in the crop of Hulaga in my landed property. Therefore, mydaughter went to accd. Rama for asking him to take out she-buffalo. At thattime the accd. Rama and Laxman assaulted/my daughter. Thereafter, on therelevant day at 6 p.m. I was coming towards my vasti after return from mywork. I was coming by riding on the bicycle. While coming my son met withme near the canal and I myself and my son were proceeding towards house.My son was also having bicycle with him. While proceeding when wereached near the vasti of Karbhari, the aced. Rama Laxman, Sudhakar,Karbhari and their sons restrained us. Then the incident of assault tookplace in between myself, my son and the accused. The accused assaulted {10} CRI APPEAL 14 OF 2006me. At that time my daughter witnessed incident of assault on us, therefore,she went to my son to inform about it.When accd. Rama, Laxman, Sudhakar and Karbhari and their sons wereassaulting us, accd. Annasaheb came there and at that time he was havingaxe in his hand. At that time accd. Annasaheb stated as " Ya DhedgyalaMara” The accd. Rama assaulted on my head by axe. The accd. Annaassaulted on my hand by axe. The accd. also assaulted my son. The accd.also assaulted on the female members of my family. But I cannot tell as toexactly who has assaulted on the female members of my family. Due to theassault I sustained bleeding injury and blood stains came on the cloths onmy person. At the time of incident the cloths Dhoti, Shirt, Kopari and capwere on my person.4. Then my son Bhausaheb came alongwith Jeep and he took us atCivil hospital, Ahmednagar.”PW4 Laxman Pandurang Borde is an independent witness. Atexh.53, regarding occurrence, he deposed as under: “The incident in the case took place on 17.8.2001. On hearing the noise ofshoutings, Sakharbai and Shobha rushed towards the vasti of Karbhari.When Sakharbai and Shobha were proceeding towards the vasti ofKarbhari, the accd. Maruti came there. The accd. Maruti caught holdshobha and fall her down on the soil. The accd. Narayan also came thereand he was having iron bar in his hand and he assaulted on Shobha by ironbar. At that time I noticed accd. Annasaneb while running towards thevasti of Karbhari, having a axe in his hand. At that time accd. Maruti statedto Shobha as, " Mare, Dhedpadi Lai Majlet. The accd. Maruti and Narayanalso proceeded to the vasti of Karbhari. The accd.nos.1 to 3 present beforethe Court are the said Maruti, Annasaheb and Narayan. I can identify theaxe and iron bar which were in the hands of accused, if shown to me. Theaxe produced before the Court and now shown to me is the said axe. Police {11} CRI APPEAL 14 OF 2006have enquired with me about the incident and recorded my statement.”PW5 Arvind Vitthal Kulkarni is Police Head Constable at Sonai PoliceStation, who lodged report. PW6 Sharad Ramrao Borude is panch witness, who turned hostile. PW7 Shobha Bhausaheb Bhalerao is sister-in-law of complainant. Atexh.58, regarding occurrence, she deposed as under :“The incident in the case took place before about 3 years back prior to oneday of Pola festival. On the relevant day at noon time I had gone in ourlanded property. At the relevant time of incident I was carrying the work ofKhurapane in our property at the noon time. At the relevant time the she-buffalo of accused Laxman was grazing in the crop of our property.Therefore, my mother in law went towards the she-buffalo in order to driveher from the field. At the relevant time accused Laxman quarreled with us.Then accused Laxman took out his she buffalo from the field. Andthereafter we were present in our field. We carried the work in the field tillevening time. When we were present in our field property we heard thenoise of shouting from the vasti of Sudhakar & Karbhari. It was the noise ofshouting of complainant Nanasaheb & my brother in law. The accusedKarbhari and Sudhakar were assaulting on complainant Nanasaheb & myfather in law by restraining them. On hearing the noise of shouting I myself& my mother in law were proceeding towards the site from which we heardthe noise. When we were proceeding the accused Maruti, Aana & Narayancame. The accused Anna was having axe in his hand, the accused Marutiwas having iron bar in his hand, The accused Narayan was also having ironbar in his hand. At the relevant timem the accused Maruti stated as"Mhaharde, Dherdye, Tumhi Lai Majale", the accused Maruti pulled away
Legal Reasoning
{12} CRI APPEAL 14 OF 2006my saree, the accused Narayan assaulted on my head by iron bar. Due to theassault I fall down on the soil. Then my mother in law brought me at house.Then my sister in law went in the village to inform about the incident. Thenmy husband came alongwith the jeep. And took me & took my brother inlaw & father in law at Civil Hospital, Ahmednagar. Due to the assault Isustained the bleeding injury & blood stains clothes on my person. Theaccused before the Court are the same persons who have assaulted on meand assaulted on my brother in law & father in law.”PW8 Vasant Godhaji Sanap is the Investigating Officer, who carriedout investigation. His evidence is at exh.59.PW9 Dr.Prabhas Manikrao Patil is medical officer, who examinedinjured. At exh.74, he deposed as under :“On 17.8.2001 I was present at the hospital and was on duty. On 17.8.2001the persons by name Balaji Bhalerao, Shobha Bhalerao and NanasahebBhalerao came at Civil hospital, Ahmednagar for medical examination andtreatment. At that time Balaji, Shobha and Nanasaheb gave the history ofalleged assault on them. Accordingly I have examined Balaji, Shobha andNanasaheb. The injury certificates are at exhibits 75, 76 and 77 are issuedby me.”PW10 Narayan Raosaheb Korde is Clerk from Sub-Divisional Office,Shrirampur. The said office has issued caste certificate tocomplainant Nanasaheb. {13} CRI APPEAL 14 OF 2006LAW ON APPLICABILITY OF SECTION 149 OF IPC7.Before adverting to and undertaking the exercise of re-appreciation and reanalysis of the evidence, and there being chargeunder Section 149 of the IPC, it would be desirable and fruitful todiscuss the judicial precedent on applicability of said penal provision.Though, there are catena of judgments on applicability ofSection 149 of IPC, following judgment, out of few known andlandmark judgments, can be referred for proper comprehension. The Hon’ble Supreme Court in the case of State of Karnataka v.Chikkahottappa @ Varade Gowda and others, AIR 2008 SC 2692, hasvery lucidly, succinctly and in instructive manner clarified legalposition of above provision. The relevant paragraphs from aboveruling are borrowed and quoted here for ready reference :“6. The pivotal question is applicability of Section 149 IPC. Saidprovision has its foundation on constructive liability which is the sine quanon for its operation. The emphasis is on the common object and not oncommon intention. Mere presence in an unlawful assembly cannot render aperson liable unless there was a common object and he was actuated bythat common object and that object is one of those set out in Section 141.Where common object of an unlawful assembly is not proved, the accusedpersons cannot be convicted with the help of Section 149. The crucial {14} CRI APPEAL 14 OF 2006question to determine is whether the assembly consisted of five or morepersons and whether the said persons entertained one or more of thecommon objects, as specified in Section 141. It cannot be laid down as ageneral proposition of law that unless an overt act is proved against aperson, who is alleged to be a member of unlawful assembly, it cannot besaid that he is a member of such an assembly. The only thing required isthat he should have understood that the assembly was unlawful and waslikely to commit any of the acts which fall within the purview of Section141. The word 'object' means the purpose or design and, in order to make it'common', it must be shared by all. In other words, the object should becommon to the persons, who compose the assembly, that is to say, theyshould all be aware of it and concur in it. A common object may be formedby express agreement after mutual consultation, but that is by no meansnecessary. It may be formed at any stage by all or a few members of theassembly and the other members may just join and adopt it. Once formed, itneed not continue to be the same. It may be modified or altered orabandoned at any stage. The expression 'in prosecution of common object'as appearing in Section 149 have to be strictly construed as equivalent to 'inorder to attain the common object'. It must be immediately connected withthe common object by virtue of the nature of the object. There must becommunity of object and the object may exist only up to a particular stage,and not thereafter. Members of an unlawful assembly may have communityof object up to certain point beyond which they may differ in their objectsand the knowledge, possessed by each member of what is likely to becommitted in prosecution of their common object may vary not onlyaccording to the information at his command, but also according to theextent to which he shares the community of object, and as a consequence ofthis the effect of Section 149, IPC may be different on different members ofthe same assembly.7. ‘Common object' is different from a 'common intention' as it does notrequire a prior concert and a common meeting of minds before the attack. Itis enough if each has the same object in view and their number is five or {15} CRI APPEAL 14 OF 2006more and that they act as an assembly to achieve that object. The 'commonobject’ of an assembly is to be ascertained from the acts and language of themembers composing it, and from a consideration of all the surroundingcircumstances. It may be gathered from the course of conduct adopted bythe members of the assembly. What the common object of the unlawfulassembly is at a particular stage of the incident is essentially a question offact to be determined, keeping in view the nature of the assembly, the armscarried by the members, and the behaviour of the members at or near thescene of the incident. It is not necessary under law that in all cases ofunlawful assembly, with an unlawful common object, the same must betranslated into action or be successful. Under the Explanation to Section141, an assembly which was not unlawful when it was assembled, maysubsequently become unlawful, It is not necessary that the intention or thepurpose, which is necessary to render an assembly an unlawful one comesinto existence at the outset. The time of forming an unlawful intent is notmaterial. An assembly which, at its commencement or even for some timethereafter, is lawful, may subsequently become unlawful. In other words itcan develop during the course of incident at the spot co instante.8.Section 149, IPC consists of two parts. The first part of the sectionmeans that the offence to be committed in prosecution of the commonobject must be one which is committed with a view to accomplish thecommon object. In order that the offence may fall within the first part, theoffence must be connected immediately with the common object of theunlawful assembly of which the accused was member. Even if the offencecommitted is not in direct prosecution of the common object of theassembly, it may yet fall under Section 141, if it can be held that the offencewas such as the members knew was likely to be committed and this is whatis required in the second part of the section. The purpose for which themembers of the assembly set out or desired to achieve is the object. If theobject desired by all the members is the same, the knowledge that is theobject which is being pursued is shared by all the members and they are ingeneral agreement as to how it is to be achieved and that is now the {16} CRI APPEAL 14 OF 2006common object of the assembly. An object is entertained in the humanmind, and it being merely a mental attitude, no direct evidence can beavailable and, like intention, has generally to be gathered from the actwhich the person commits and the result therefrom. Though no hard andfast rule can be laid down under the circumstances from which the commonobject can be culled out, it may reasonably be collected from the nature ofthe assembly, arms it carries and behaviour at the time of or before or afterthe occurrence. The word 'knew' used in the second limb of the sectionimplies something more than a possibility and it cannot be made to bear thesense of 'might have been known'. Positive knowledge is necessary. When anoffence is committed in prosecution of the common object, it wouldgenerally be an offence which the members of the unlawful assembly knewwas likely to be committed in prosecution of the common object. That,however, does not make the converse proposition true; there may be caseswhich would come within the second part but not within the first part. Thedistinction between the two parts of Section 149 cannot be ignored orobliterated. In every case it would be an issue to be determined, whetherthe offence committed falls within the first part or it was an offence such asthe members of the assembly knew to be likely to be committed inprosecution of the common object and falls within the second part.However, there may be cases which would be within the first part butoffences committed in prosecution of the common object would also begenerally, if not always, be within the second part, namely, offences whichthe parties knew to be likely to be committed in the prosecution of thecommon object. (See Chikkarange Gowda and others v. State of Mysore AIR1956 SC 731). These aspects were also recently highlighted in Chandra andOrs. v. State of U.P. and Anr. [2004 (5) SCC 141].” What can be culled out from above ruling is that it isimperative for prosecution to first and foremost establish that theunlawful gathering comprising of five or more persons, was actuated {17} CRI APPEAL 14 OF 2006by common object spelt-out in Section 141 of the IPC. In aboveruling, the word ‘object’ has been clarified by stating to mean aspurpose or design, the word ‘common’ denotes sharing by all otherswith above strength of persons. Keeping these requirements and theparticular phrases, its legislative intent in mind, the exercise ofanalysis and re-appreciation of evidence available in case in hand istaken up for reaching to conclusion as to whether essentialingredients for attracting Section 149 of the IPC are available or not.ANALYSIS8.Here, evidence of PW1 Nanasaheb Balaji Bhalerao, PW3 BaluMadhav Bhalerao, PW4 Laxman Pandurang Borde and PW7 ShobhaBhalerao is crucial. On meticulous re-appreciation of evidence, it is clearlyemerging that, as submitted in trial Court and also as held by learnedtrial Judge, witnesses are not consistent and their evidence is full ofmaterial omissions for the reasons that, according to PW1Nanasaheb, first incident took place at 08:00 a.m. wherein he hasnamed accused nos.1, 2 and 3 for hurling caste abuses and he hasattributed role of assault to accused no.8 i.e. for assaultingcomplainant’s mother and sister at around 04:00 pm. Third {18} CRI APPEAL 14 OF 2006incidence he quoted is of about 06:30 p.m. wherein he namedaccused no.9 for restraining PW1 complainant from proceedingfurther and has also named accused no.4 to 8, 10 and 11 for beingarmed with iron rods and axes and it is alleged that they beatcomplainant and his father. However, he has named only accusednos.1, 2 and 3 inflicting injuries on his mother and sister-in-law i.e.without specifying or clarifying role or naming the site of assault.It has come in his cross-examination that there was a disputebetween this witness and accused in respect of Gat No.35. Headmitted that he did not lodge complaint prior to 17-08-2001 inrespect of destroying of bandh. He admitted that a case is pendingagainst him in Newasa Court. In paragraph 17, there is omission in respect of incident tookplace at 04:00 p.m. in which Samindrabai abused mother and sisterof this witness. In same paragraph, there is also omission in respectof accused Karbhari restraining them from proceeding further. 9.Another witness PW3 Balu, in his evidence at exh.52, hasnarrated about occurrence of 06:00 pm, during which he has allegedthat accused nos.4, 5 and 8 and 9 restrained him and he hasattributed role of assault by axe to accused no.3 and for instigating {19} CRI APPEAL 14 OF 2006others. He attributed role to accused no.4 for assaulting on his headby means of axe. While under cross-examination, in paragraph no.8, there isomission about she buffalo of Rama grazing in the crop of Hulga inthe morning and when female members of this witness asked Ramato take out the buffalo, daughter of this witness was assaulted. Insame paragraph, there is also omission about the fact that daughterof this witness witnessed the incident of assault and went to informher brother. There is further omission about accused Ramaassaulting on head of this witness by axe. 10.PW4 Laxman gave timing of occurrence as 06:30 p.m. duringwhich he alleged about accused no.1 catching hold of Shobha andmaking her fall down and then hurling caste abuse. According tohim, accused no.2, who was armed with iron rod also assaultedShobha with it, but named accused no.3 for being only armed withaxe and he has not attributed any role to him.11.PW7 Shobha is also a material witness for prosecution and sheclaims that after hearing shouts, she and her mother-in-law sawaccused nos.5 and 9 assaulting PW1 Nanasaheb and his father. By {20} CRI APPEAL 14 OF 2006what means has not been stated by her, however, she named accusedno.3 to be armed with axe and accused nos.1 and 2 to be equippedwith iron rods. She attributed role to accused no.1 for pulling hersaree and further attributed role to accused no.2 assaulting on headby iron bar. In her cross-examination, in paragraph no.4, there are materialomissions about she going in their property at noon time for carryingout the work and she worked in the field till evening; accused Annawas armed with axe and accused Narayan was armed with iron bar;there was abuses on the caste, and her sister-in-law went in thevillage to inform about the incident. 12.Prosecution, in support of injuries, has examined PW9Dr.Prabhas Patil, who has testified at exh.74 regarding examininginjured and issuing injury certificates. 13.On re-analysis of above evidence i.e. substantive evidence ofabove witnesses, it is emerging that there is previous animositybetween complainant party and accused party. As submitted, there iscross FIR by accused persons against present witnesses of whichthere is clear admission. It is not getting clear, who is the aggressor {21} CRI APPEAL 14 OF 2006here. Apparently, three instances are quoted i.e. in the morning ataround 08:00 a.m., in the afternoon 04:00 p.m. and then in theevening at 06:00 p.m. It is evident from above testimony ofwitnesses that different accused are named for indulging in abovethree instances. In some instances, only two accused are named, inother three to four accused are named. What formation of unlawful assembly contemplates is notavailable in the evidence. To accept the case of sharing commonobject, evidence is patently lacking. This aspect clearly inflicts severedent to the prosecution. Three spots are narrated with three distincttimings and as such, it is difficult to accept that there was eithercommon intention or common object. Most crucial aspect is that evidence of above witnesses is foundto be contradictory and full of material omissions giving cause forraising suspicion over the very occurrence. As stated, PW1complainant had merely stated that report was lodged but the samewas not entertained. However, apparently there is delay in lodgingFIR and as stated above, it is subsequent to the FIR at the instance ofaccused party, wherein complainant party is arrested and booked foroffence under Section 326 of the IPC. Hence, there is materialsuggesting counter blast. {22} CRI APPEAL 14 OF 200614.As regards to offence under the provisions of SC and ST Act isconcerned, allegations are directed to all accused and allegations inchorus cannot be made basis. Moreover, some of the accused arethemselves belonging to Scheduled Caste and Scheduled Tribe and assuch caste abuse cannot be attributed to them. 15.For above reasons, on complete reanalysis of availableevidence, even this Court is convinced that evidence of prosecutionwitnesses does not inspire confidence and is rather full of materialomissions, contradictions and improvements. Witnesses are notlending support to each other on material counts. It is thus a fit caseof benefit of doubt. 16.Perused the judgment under challenge, in the consideredopinion of this Court, all necessary legal requirements are tested bythe learned trial Judge and thereupon, by keeping settled law inmind, conclusion has been drawn by assigning sound reasons. Nopatent perversity or illegality is brought to the notice of this Court soas to interfere or overturn the judgment. No case on merits beingmade out, appeal deserves to be dismissed. Accordingly, I passfollowing order : {23} CRI APPEAL 14 OF 2006ORDER Criminal Appeal is dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT