High Court · 2025

Legal Reasoning

-1- Cri.Appeal.262.2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 262 OF 2006The State of Maharashtra,Through Police Station, Bori, Tq. Jintur, Dist. Parbhani.… Appellant.(Orig. Complainant)Versus1.Hanuman Harinarayan Somani, Age : 36 years, Occu. : Agri.,R/o. Kausadi, Tq. Jintoor, Dist. Parbhani. 2.Pralhadrao Vithalrao Ikhe,Age : 36 years, Occu. : Agri.,R/o. As above.3.Pandurang Wamanrao Suryawanshi,Age : 50 years, Occu. : Agri.,R/o. As above.4.Taterao Ramrao Barvkar,Age : 47 years, Occu. : Agri.,5.Hanuman Kanhyalal Sharma,Age : 48 years, Occu. : Agri.,As above.… Respondents(Orig. Accused)......Mr. S. M. Ganachari, APP for Appellant – State.Mr. Swapnil S. Rathi, Advocate for Respondents.......CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :25 JULY 2025PRONOUNCED ON :08 AUGUST 2025JUDGMENT : 1.State is taking exception to the judgment and order -2- Cri.Appeal.262.2006dated 13.12.2005 passed by the 2nd Ad-hoc Additional SessionsJudge, Parbhani in Special Case No. 02 of 2005 acquitting presentrespondents from offence punishable under sections 147, 148, 323read with section 149 of the Indian Penal Code and under section3(1)(x)(XIV) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989.IN BRIEF CASE OF PROSECUTION IN TRIAL COURT AS UNDER2.Informant Kamalbai and her husband Jagan werereturning to their house on 12.01.2004 at around 5:00 p.m.According to prosecution, accused nos.1 to 5 questioned them foroccupying the Gairan land and asked them to vacate the same. Inabove backdrop, it is alleged that, accused persons initiallythreatened, then hurled on caste abuse. Accused no.1 tried to givea blow of axe on Jagan, but it was prevented by informantKamalbai by intervening, however, she suffered injury. Thereafter,accused no.4 and other accused used stick for thrashing Kamalbaiand Jagan i.e. husband and wife, who were referred for medicalexamination and on report of PW1 informant Kamalbai crimebearing No.07 of 2004 was registered.On completion of investigation, present respondentswere charge-sheeted and tried vide Special Case No.02 of 2005,during which prosecution is examined in all 5 witnesses. Learned -3- Cri.Appeal.262.2006trial court heard arguments advanced by each of the side and videjudgment and order dated 12.12.2005 acquitted the accused fromall the charges. Aggrieved by the same, State has come in appeal onvarious grounds raised in appeal memo.SUBMISSIONS3.Learned APP would submit that, case of prosecutionhas been proved beyond reasonable doubt. Informant Kamalbaiand her husband Jagan were assaulted by accused persons bymeans of axe as well as sticks. That, both of them specificallynamed the accused in their testimonies, which is consistent andlending support to each other. That, in support of the injuriesinflicted by accused and suffered by informant and her husband,medical expert who had occasion to treat, is also examined. That,injuries are proved. Therefore, all ingredients for attracting section323 of IPC are available in prosecution evidence. That, accusedpersons had formed unlawful assembly with common object. That,there were abuses on caste basis, and therefore, even provisions ofAtrocities Act were attracted. He submitted that, investigationwas carried out by PW5 S.D.P.O. Vaijapur, who is authorized toinvestigate such cases. That, evidence of all witnesses hasremained intact and core of the prosecution could not get shaken in -4- Cri.Appeal.262.2006spite of extensive cross. Thus, according to learned APP, learnedtrial court ought to have convicted the accused, but it having failed,learned APP urges indulgence by allowing the appeal. 4.In answer to above, while supporting the judgment ofacquittal, learned counsel for respondents would submit that,admittedly, there was long standing dispute over cultivation ofland, which was Gairan land. That, informant and her husbandhave both admitted that they were upset with accused persons andas such complaint is motivated. He submitted that, evidence ofinformant and her husband is not consistent on material count andthey are not lending support to each other on the point of actualoccurrence. Even persons, who are not accused are attributed role,therefore, according to learned counsel, case of prosecution hascomes under shadow of doubt. Evidence of PW1 Kamalbai and PW2Jagan is full of material improvements and exaggerations.Inviting attention of this court to the medical expert’sevidence, it is submitted that, doctor has been cross examined andcandidly answered that, injury suffered by informant and herhusband are not possible by use of axe of which allegations aremade for being used. That, in spite of availability of independentwitnesses, same are not examined, therefore except the evidence -5- Cri.Appeal.262.2006of interested witnesses there were no other evidence and solearned counsel supports the judgment of acquittal and prays todismiss the appeal.EVIDENCE BEFORE THE TRIAL COURT5.Re-appreciated and reanalyzed the entire evidence. Itseems that prosecution has examined in all five witnesses. Crucialevidence is of informant PW1 Kamalbai and her husband PW2Jagaon only. For proper appreciation and comprehension, it wouldfruitful to reproduce the very testimonies of above witnesses : PW1 Kamalbai is the informant. Relevant portion of herevidence at Exhibit 26 is as under :-“1.I know accused No.1 to 5 present before the court.Some of the accused are Marwadi, Maratha and Mali bycaste. I am par Pardhi by caste. I along with my husbandand children was residing in Gairan land at Kausadi since8-10 years. We had committed encroachment of that landand therefore a criminal proceeding was launched againstus.2. The incident took place prior to about 2 years onMonday. On the date of incident I was returning from Bazarof Bori along with my husband travelling in auto rickshaw.We alighted from that auto near Mashid situated at somedistance from Kausadi. Myself and my husband both startedproceeding towards our residence by walk at about 5 p.m.When we had reached near the Pandan, accused no.1 to 5 -6- Cri.Appeal.262.2006intercepted us. They abused us in filthy language. Theyasked us to leave that Gairan land uttering the words‘Gairanatum Nighun Ja Nahiter Tumacha Raktapat Karu’,Myself and my husband both had told the accused personsthat if the govt allots that encroached portion of land to usthen we would stay there and if not we would vacate. Theyrushed to beat us. We had shown the papers pertaining toour demands for allotment of that encroached land to us byGovt. Accused Taterao tore those papers. Taterao andHanuman uttered the word's ‘Konta Ambedkar Baba Ahe,Amche Kai Shete Wakade Karil.’ Accused Hanuman Somanirushed to beat my husband by means of an axe. Iimmediately rushed there and when I prevented him fromgiving the blow of that axe, I sustained injury on my righthand, due to which I sustained tow injuries on my righthand. Accused Taterao gave stick blow to me, one Santoba(Gurkha) who is not an accused in this case had given stickblow to my husband. My husband ran away Upon thataccused left the spot. Then we went to Bori Police station. Inarrated the incident and police men recorded mycomplaint. During the incident I had thrown the vegetableon the spot. I again say that the accused persons had thrownthe vegetable on the spot. I am now shown that complaintbearing my T.I. which I identify its contents are correct. It isat Exh.27. I was sent by the police men top. H.C. Bori whereI received treatment. I can produce caste certificate.”PW2 Jagan is the husband of informant. Relevantportion of his evidence at Exhibit 28 is as under:- -7- Cri.Appeal.262.2006“I know accused no.1 to 5 present before court. Thecomplainant Kamalbai is my wife. I am pardhi by caste. Allthe accused are Maratha by caste. Prior to about 3-4 years Icommitted encroachment over 4 and 1/2 acres Gairan landsituated at Kausadi. Prior to about 2 years the accusedpersons and villagers from Kausadi had lodged complaintand submitted representations against us and therefore MrBharkad Talathi lodged report against us at Bori P.S. on thebasis of that complaint we are facing prosecution in thecourt of Jintoor. After initiation of that criminal case againstus the present incident took place. The incident took place onMonday at about 5 p.m. at About 5 p.m, myself and my wifehad alighted from auto rickshaw while returning from BoriBazar near slum area of Kausadi. Thereafter myself and mywife both started to proceed by walk towards Gairan. Wenoticed accused no.1 to 5 besides 7-8 other persons sittingon the road. The moment we reached near them accusedTaterao and accused Hanuman Somani both asked me tovacate the Gairan land. They both had also uttered words.‘Gairan Sodun ja Nahiter Raktapat Hoil’. When I had shownsome papers to them. They had torn the same. And abused usuttering the words, ‘Tumhi Pardhi Kai Karnar’. They alsouttered the words, ‘Babasahebachya Mansani kitihi MorcheKadhale Tarihi Amache Kahi Wakade Honar Nahi, TheSarpanch Hanuman Somani had tried to give blow of axe tome upon that my wife rushed to prevent that blow because ofwhich the axe had strick on her right hand and she sustainedinjury. Meanwhile one Santoba Gurakhi was standingbehind me gave a blow of stick on my head on my back sidebecause of which I felt gidiness and I ran away. Then Istarted making hue and cry. Then all the accused ran away. -8- Cri.Appeal.262.2006The vegetables purchased by us were lying on the spot. Thenmyself and my wife went to police station where she lodgedreport. Then Hanuman Gaikwad P.S.I. brought us in policejeep to the spot and I had shown him the spot of incident.Police men had sent us to P.H.C. Bori for treatment.”ANALYSIS6.On critical re-appreciation of above evidence, it isnoticed by this court that according to informant, accused nos.1 to5 intercepted their way and they abused in filthy language.Therefore, primarily allegations are omnibus and general innature. There cannot be abuses in chorus. No distinct role isattributed by informant. She has stated that, accused no.1 whowas armed with axe, rushed to assault her husband, but sheintervened, and therefore, thereby she suffered injury to her righthand. She also attributed stick blow to Taterao as well as oneSantoba, but admittedly Santoba is not accused and charge-sheetedor tried. 7.Her husband PW2 Jagan, who is examined at Exh.28regarding incidence testified that, when he and his wife werereturning from Bori Bazar, they saw accused nos.1 to 5 along with7 to 8 other persons sitting on the road. According to him, onlyaccused Taterao and Hanuman asked him to vacate the Gairan -9- Cri.Appeal.262.2006land and they also alleged utterance of words “Gairan Sodun JaNahiter Raktapat Hoil”, such utterance is not stated by his wifePW1 Kamalbai. He stated that, Hanuman tried to give blow of axeon him, but his wife rushed to prevent the blow and as such the axestruck on her right hand. Even she has named Taterao for givingstick blow to her and such role is not crystallized by her husbandPW2 Jagan. While under cross, PW1 Kamalbai has admitted thatbecause of repeated complaints by accused, they were annoyed andfed up.8.PW4 Arun, panch to recovery of axe and spot has notsupported the prosecution story. Therefore, recovery also comesunder shadow of doubt.9.PW3 Dr. Prakash Dake is the Medical Expert, but aspointed out, he in his cross examination has denied injury to besuffered by PW1 informant to be possible by axe. Rather heattributes injury to be due to blunt object. 10.Therefore, cumulative effect of above evidence is that,firstly, there is previous annoyance and relations are not cordial.PW1 informant Kamalbai and PW2 Jagan are not consistent aboututterance of abuse. As regards to role of accused Hanuman and -10- Cri.Appeal.262.2006accused Taterao as stated by PW1 informant is not supported byPW2 Jagan husband. Therefore, as submitted by learned counselfor respondents, here, evidence of prosecution is not full-proof andconvincing. Learned trial court has acquitted accused from all thecharges. Bearing in mind the law settled while appreciating thecase of acquittal, this court does not find any patent infirmity orperversity so as to interfere.11.No case being made out, the appeal is dismissed. (ABHAY S. WAGHWASE, J.) Tandale