High Court

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CriAppeal-137-2006-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 137 OF 2006The State of Maharashtra,(Through P.S.O. Sonkhed P.S.,Taluka Loha, District Nanded.… ApplicantVersus1.Kishan Ramji KadamAge : 35 years, Occupation Agril., 2.Baban Ramji KadamAge : 25 years, Occupation Agril.,3.Rangnath Ramji KadamAge : 32 years, Occupation Agril.,4.Suresh Ramji KadamAge : 22 years, Occupation Agril.,All R/o Bhendegaon, Taluka Loha,District Nanded.… Respondents(Orig. Accused)…..APP for the Appellant-State : Mr. S. M. GanachariAdvocate for Respondents : Mr. Sanjay Kolhare..... CORAM :ABHAY S. WAGHWASE, J. DATED :18.07.2025JUDGMENT : 1.This is a State Appeal wherein the judgment and order passedby learned J.M.F.C., Loha dated 26.07.2005 acquitting therespondents herein from offence under Sections 447, 326, 504 r/w 34of IPC is questioned. CriAppeal-137-2006-2- 2.Case of prosecution is brief is that, on 31.12.1999, four accusedpersons i.e. present respondents, after committing criminal trespass inthe field of complainant Vithal, committed offence under Sections 447r/w 34, 326 r/w 34 and 504 r/w 34 of IPC. After report was lodgedby PW1 Vithal and investigation was carried out by PW7, accusedpersons were chargesheeted and tried before learned J.M.F.C. who,on appreciation of documentary evidence, reached to a finding thatprosecution has failed to bring home the charges and hence, byjudgment and order dated 26.07.2005, acquitted the accused, whichis now taken exception to.SUBMISSIONSOn behalf of the Appellant-State :3. Learned APP would submit that prosecution had proved thecase beyond reasonable doubt by examining in all eight (8) witnesses.That, informant Vithal, on account of suffering injuries, was treatedby PW8 medical expert who is also examined. That, there isindependent eye witness account in the form of PW3. That, articleswere seized and identified by the injured. Complainant-injuredwithstood the entire cross without getting shaken at any point oftime. That, all ingredients to attract the charges were available in CriAppeal-137-2006-3- prosecution evidence but the same were not appreciated in correctperspective. Hence, he seeks indulgence by allowing the appeal andsetting aside the impugned judgment.On behalf of the Respondents :4.Per contra, learned counsel for the respondents-originalaccused would submit that, prosecution has miserably failed to bringhome the charges. That, there was no occurrence as alleged. Apartfrom delayed FIR, medical examination was also delayed, creatingserious doubt about prosecution version. That, witnesses are notconsistent and their evidence is full of material omissions, variancesand contradictions. That, panchas have also not supported. Hepointed out that the occurrence is of 31.12.1999 and medicalexamination is of 14.01.2000, for which there is no explanation andas such, very assault or alleged injuries suffered by complainant havecome under shadow of doubt. Therefore, learned counsel for therespondents justifies acquittal and urges to dismiss the appeal forwant of merits.EVIDENCE BEFORE THE TRIAL COURT5.The sum and substance of the evidence of prosecution is asunder : CriAppeal-137-2006-4- PW1Informant Vithal testifies that on 31.12.1999, while he was inhis field, accused persons, namely Kishan, Rangnath, Babanand Suresh came there and they intervened his agriculturalactivity. He alleged that, after accused Kishan held him,accused Rangnath gave two blows with cane cutter on his lefthand, i.e. one near wrist and another near elbow, causinginjuries. Whereas, accused Suresh and Baban gave him kicksand fist blows. Tukaram Kadam, Nilkanth Kadam andBapusaheb Kadam came there to separate them. He went topolice station and filed application. Complaint Exhibit 41 isidentified by him.While facing cross, he has admitted that relations between himand accused are strained. He further answered that, apart frominjuries to wrist and elbow, he also suffered injury to his noseresulting into nose bleeding and except such injuries, he didnot suffer any injury. His clothes were also stained by blood. Heanswered that 10 minutes after the assault, witnesses camethere. He answered that, contents in the complaint aboutBaban and Kishan catching hold of him are false and rather, thefact mentioned in the complaint about Suresh assaulting himon face and head by fist and kick is correct. He admitted thatdue to mistake, the fact of assault by kicks and fist blows bySuresh only might have been mentioned in the complaint. Heanswered that even his inner wares were stained with blood. CriAppeal-137-2006-5- PW2Vishwambhar has acted as pancha to spot panchanama Exhibit45.PW3Nilkanthrao, in his evidence at Exhibit 48 stated that he knewcomplainant as well as accused. According to him, complainantwas in his field and that time he himself was cutting grass forthe cattle in his own field. He stated that, two/three of accusedbrothers came in the field of complainant and questioned himfor not allowing cultivation, and it is stated that, all accusedabused complainant. According to this witness, he went to thespot of quarrel and that time, accused Kishan and Baban hadcaught hold of complainant, whereas accused Suresh gaveblows of fist and kicks on mouth and head of complainant,whereas accused Rangnath gave blow of cane cutter on thehand of complainant, i.e. on the left hand elbow and wrist,resulting into bleeding injuries.In cross, he has admitted that he is cousin of complainant.Regarding occurrence, he is cross-examined in para 4 whereinhe stated that after arrival of accused, there were preliminarytalks going on for four minutes and then there were abuses tothe complainant. Then he stated that, Bapusaheb also came tothe field. By the time he reached the spot, Kishan and Babancaught hold of complainant and Suresh was giving kicks andfist blows. In further cross, his case is of entire denial. CriAppeal-137-2006-6- PW4Bapusaheb also, in his evidence at Exhibit 50, stated thathearing noise in the field of complainant, he went there and atsuch time, there was scuffle going on between complainant andaccused. Kishan and Baban had caught hold of complainantwhereas, Suresh inflicted fist blows and kicks on the mouth ofcomplainant. He also gave blows on forehead and head.According to this witness, accused Rangnath came there andinflicted blow of katti on the left elbow and wrist of thecomplainant.In cross, he has admitted that he was cousin of complainant.Rest is all denial.PW5Narayan, who acted as pancha to memorandum panchanamaallegedly at the instance of accused Rangnath, has notsupported prosecution.PW6Daulat is another pancha, who also did not supportprosecution.PW7Police Head Constable Ashok Jondhale is the InvestigatingOfficer.PW8Devidas Kanwate is the medical expert who, in his evidence atExhibit 63, deposed that on 14.01.2000, while he was on duty,injured Vithal was referred for examination and he hadsuffered one incised would on left elbow which was grievousinjury caused due to sharp object and its age was 24 hours. CriAppeal-137-2006-7- In cross, he admitted that when patient came to him, at thattime, injury was bleeding and clothes of patient were bloodstained. He admitted that injury noticed by him and reflected inthe injury certificate is possible on account of fall on sharp oredged stone.ANALYSIS6.On meticulous re-appreciation of entire evidence, it is emergingthat, there is previous animosity between complainant and accusedpersons. When the alleged incident took place, at that time, Vithalclaims to have been abused and assaulted by Rangnath with canecutter and Suresh and Baban giving kicks and fist blows. As regards toKishan is concerned only role attributed to him is of catchingcomplainant. However, in cross, complainant has added about hesuffering injury to the nose which was consequently bleeding. He alsodeposed about his clothes to be stained with blood. However, clothesare not seized by prosecution for dispatching it to CA. He admittedthat due to mistake he had reported in the complaint regarding beingbeaten by fists and kick blows only by Suresh. In cross, he hasanswered that, 10 minutes after the assault, witnesses i.e. TukaramKadam, Nilkanth Kadam and Bapusaheb Kadam came to his rescue. Inview of such vital admission given by complainant in cross, evidence CriAppeal-137-2006-8- of such witnesses is valueless and though they have deposed beforethe Court, they are apparently tutored and moreover, are also notfound to be consistent.7.Another special feature which is emerging here is that, thoughoccurrence is of 31.12.1999 and though complainant deposed aboutvisiting police station and being referred for treatment, PW8 MedicalOfficer Devidas Kanwate in spite of deposing about treating andexamining complainant, surprisingly he has given date of examinationas 14.01.2000, i.e. a fortnight after the alleged occurrence. Thisaspect also creates doubt about the very occurrence and allegedinjuries allegedly suffered by PW1 Vithal. On above counts, case of prosecution cannot be said to beproved beyond reasonable doubt8.Perused the judgment under challenge. On undertaking suchexercise, it is emerging that the findings are in consonance with theevidence adduced by the prosecution. Appreciation is done bearing inmind the legal requirements. Findings reached at are supported bysound reasons. There is no perversity or infirmity in the manner ofappreciation of such quality of evidence. The view taken by the CriAppeal-137-2006-9- learned trial court is the possible view that could emerge even on re-appreciation. Bearing in mind the principles enunciated while dealingwith an appeal against acquittal, no case being made for interference,the following order is passed : ORDERAppeal is dismissed. [ABHAY S. WAGHWASE, J.]vre