High Court · 2025
Legal Reasoning
(1) cri.apeal-317.2005.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 317 OF 2005The State of MaharashtraThrough PSO, MajalgaonPolice Station, Dist. BeedAppellantVersusVithal Hariba MisalAge : 50 yrs, occ : KotwalR/o Majalgaon Tahsil,Majalgaon, Dist. Beed.Respondent…Mr. R.D. Raut, A.P.P. for the appellant / State.Mr. B.S. Kudale, Advocate for the respondent....CORAM :SANDIPKUMAR C. MORE, J.JUDGMENT RESERVED ON:12 FEBRUARY 2025JUDGMENT PRONOUNCED ON:21 APRIL 2025JUDGMENT :1.The appellant-State has preferred this appealagainst the judgment and order dated 18.01.2005 passed bythe learned Additional Sessions Judge, Majalgaon in CriminalAppeal No.10/2004. Under the impugned judgment, thelearned Additional Sessions Judge has acquitted the presentrespondent/accused by setting aside the judgment and orderof conviction dated 05.05.2000 passed by the learned JudicialMagistrate, First Class, Majalgaon in R.C.C. No. 97/2000 i.e.the learned trial Court. The learned trial Court had convicted (2) cri.apeal-317.2005.odtthe respondent/accused for the offence punishable underSections 295, 504 and 506 of the Indian Penal Code (for short,“I.P.C.”) and sentenced him accordingly. However, the learnedtrial Court acquitted the respondent/accused of the offencepunishable under Section 510 of the I.P.C.2.As per the prosecution story, respondent/accusedat the relevant time was Kotwal. He belongs to ‘Mang’ casteand resides at Indiranagar area of Majalgaon. There is onetemple of God Hanuman at Indiranagar and so many people ofHindu religion used to visit the same for worship. On01.03.1999 on the day of Holi, respondent/accused in drunkenstate entered into Gabhara of the said temple and by lifting hisLungi, started urinating on the idol of God Hanuman. OneGayabai Shinde, who was present in the temple, by noticingact of the accused, shouted loudly. Complainant SheshraoYadav, who was sitting on the Ota of nearby house, rushed tothe spot and found respondent/accused passing urine on theidol of God Hanuman. When tried to prevent, the respondent/accused started abusing in loud voice in filthy language. Theneighbouring people namely Dilip Pawar, Mahadu Waghmode,Subhash Rasve, Sanjay Kajale, Sumanbai Kumbhar,Mathurabai Shinde, Satyabhamabai Shinde, Kamalbai (3) cri.apeal-317.2005.odtMurumkar and others, on hearing the shouts, had also rushedto the spot of incident and they caught hold of therespondent/ accused and made him to sit on the Ota oftemple. Respondent/accused still was not in a mood to listento the request of the aforesaid people so gathered andtherefore, complainant Sheshrao Yadav went to the policestation and lodged report of the incident.3.After investigation, the respondent/accused wascharge-sheeted for the offence under Sections 295, 504, 506and 510 of the I.P.C. The learned trial Court, after conductingthe trial, convicted respondent/accused for the offencepunishable under Section 295 of I.P.C. and sentenced him tosuffer R.I. for one year and to pay fine of Rs. 1,000/-, in defaultto suffer R.I. for one month and for the offences punishableunder Sections 504 and 506 of I.P.C. sentenced to suffer S.I.till rising of the Court and to pay fine of Rs. 500/- in default tosuffer R.I. for one month for each. However, the learnedAdditional Sessions Judge, Majalgaon under the impugnedjudgment and order, set aside the conviction recorded by thelearned trial Court and acquitted the respondent/accused ofthe offences levelled against him. (4) cri.apeal-317.2005.odt4.Learned A.P.P. strongly submitted that the learnedAdditional Sessions Judge has ignored the evidence of eyewitness and gave unnecessary importance to the other factors,such as, absence of C.A. report, sole testimony, etc. Accordingto him, the learned Additional Sessions Judge should not haveobserved that the prosecution withheld evidence of starwitness Gayabai, who noticed the act of accused for the firsttime. The learned A.P.P. further submitted that the evidence ofeye witness i.e. complainant Sheshrao is well corroborated bythe evidence of PW-3 Sanjay Kajale, who had in fact seen thevillagers bringing the respondent/accused out of the templeafter the main incident was over. Thus, he reiterated thatthere was absolutely no necessity for the prosecution toexamine Gayabai when the evidence of eye witness Sheshraowas well corroborated by PW-3 Sanjay Kajale. Thus, he prayedfor restoration of conviction recorded by the learned trial Courtagainst the respondent/accused.5.On the contrary, learned Counsel for therespondent/accused strongly supported the impugnedjudgment passed by the learned Additional Sessions Judge.According to him, the learned Additional Sessions Judgerightly observed that no scientific evidence in the form of C.A. (5) cri.apeal-317.2005.odtreport was obtained by prosecution by taking sample asregards the act of urinating on the idol of God Hanuman. Hesubmitted that the learned Additional Sessions Judge rightlyobserved that on the basis of sole testimony of Sheshrao, therespondent/accused should not be have been convicted as theother witness i.e. PW-3 Sanjay Kajale was not an actual eyewitness, but had come to the spot later on. He relied on thefollowing judgments and prayed for dismissal of the appeal.(i)Umedbhai Jadavbhai vs The State of GujratAIR 1978 SC 424(ii)State of Goa vs Mervin Thomas Menezes & anr2017 All MR (Cri) 1818(iii)Umesh Pralhad Jadho vs State of Maharashtra2014 (4) Mh.L.J. (Cri.) 6946.Heard rival submissions. Also perused theimpugned judgment alongwith the judgment of the learnedtrial Court and also the record and proceedings of both thecourts below.7.On going through the judgment of the learned trialCourt, it is evident that the prosecution has examined in allfour witnesses in support of the charge against therespondent/accused. Out of those witnesses, PW-1 SheshraoYadav is the complainant whereas PW-2 Laxman Kolhe is apanch witness of the spot panchnama. PW-3 Sanjay Kajale is (6) cri.apeal-317.2005.odtthe person who had seen the people bringing accused out ofthe temple, whereas PW-4 Arunsingh Parihar is theInvestigating Officer whose evidence is only on proceduralaspect.8.The learned trial Court has relied on the evidenceof PW-1 Sheshrao Yadav i.e. the eye witness and PW-3 SanjayKajale and found that both of them have corroborated eachother on material aspects. Thus, the learned trial Court foundthe evidence sufficient to convict the respondent/accused.9.On the other hand, the learned appellate Courtacquitted the accused disbelieving the testimony of sole eyewitness Sheshrao Yadav since PW-3 Sanjay Kajale was not aneye witness. The learned Additional Sessions Judge has alsoobserved that despite presence of so many villagers on thespot, the prosecution did not examine them to corroborate thetestimony of PW-1 Sheshrao, and therefore, adverse inferencewas to be drawn against the respondent/accused. The learnedAdditional Sessions Judge has also observed that theprosecution did not examine star witness Gayabai Shinde andalso did not try to collect scientific evidence, such as, C.A.report to establish conclusively that the respondent/accusedurinated on the idol of Got Hanuman. (7) cri.apeal-317.2005.odt10.Learned Counsel for the respondent/accusedplaced reliance on the judgment of the Apex Court in the caseof Umedbhai Jadavbhai vs State of Gujrat (supra) wherein it isobserved as follows :“In an appeal against acquittal, the High Court wouldnot ordinarily interfere with the trial court'sconclusion unless there are compelling reasons todo so, inter alia, on account of manifest errors of lawor of fact resulting in miscarriage of justice.Ordinarily the High Court would give due importanceto the opinion of the Sessions Judge, if the samewere arrived at after proper appreciation of theevidence.This rule will not be applicable where theSessions Judge has made an absolutely wrongassumption of a very material and clinching aspectin the peculiar circumstances of the case”.However, in the instant matter, earlier there wasconviction by the learned trial Court by discussing the entireevidence on record which the learned Additional SessionsJudge, in appeal, set aside. In the aforesaid judgment it isspecifically mentioned that reappriciation of evidence ispermissible in case the Sessions Judge has made absolutelywrong assumption of a very material and clinching aspect inthe circumstance of the case. Thus, considering the same,reappriciation of the evidence at the hands of this Court isnecessary to ascertain whether the opinion of AdditionalSessions Judge has come on proper appreciation of theevidence. In the case of State of Goa vs Mervin ThomasMenezes (supra) this Court has observed that unless and until (8) cri.apeal-317.2005.odtfinding recorded by Sessions Judge is found to be perverse oran impossible view, no interference is called for. However, thisobservation is no bar to ascertain from the evidence on recordas to whether the acquittal recorded by the learned AdditionalSessions Judge is contrary to the evidence on record. In thecase of Umesh Pralhad Jadho vs State of Maharashtra (supra),this Court has observed that if there was previous disputebetween the complainant party and party of the accused, thenthe conviction order is liable to be set aside. Here in this case,the respondent/accused has come out with a defence that hewas prohibited from entering into the temple of God Hanumanon account of his caste, and therefore, when he was trying toenter the temple for worshiping God Hanuman, he wasinvolved in false case. However, whether such defence isestablished by the respondent/accused, can only beascertained on the basis of evidence on record and merely onthe previous dispute, the conviction cannot be set aside unlessthere are flaws in the evidence of prosecution.11.In the instant matter, the complainant SheshraoYadav has specifically deposed that on hearing the shouts ofGayabai, he immediately rushed to the spot and found theaccused urinating on the idol of God Hanuman. He also stated (9) cri.apeal-317.2005.odtthe abuses hurled by the respondent/accused. He furtherdeposed that so many villagers also gethered at the spot ofincident and he then dragged the accused from the place ofidol to Ota outside the temple. His testimony remainedunshattered despite searching cross-examination on behalf ofthe respondent/accused. So many suggestions were given tohim to falsify the case of prosecution, but he remained firm onthe fact that he had actually seen the accused urinating onthe idol of God Hanuman. He also denied the suggestion thatprior to 3 to 4 days of the incident, they prohibitedrespondent/accused from entering into the temple. Suchdenial has definitely washed out the defence of respondent /accused.12.The evidence of PW-1 Sheshrao Yadav has beencorroborated by PW-3 Sanjay Kajale. Though the learnedAdditional Sessions Judge observed in his judgment that hiswitness was not an eye witness, but from the evidence of thiswitness, it is clearly evident that he did not claim to be an eyewitness, but deposed that he went to the spot when peoplewere taking out the accused from the temple. Thus, the mainact was witnessed by complainant Sheshrao i.e. PW-1 and theevidence of PW-3 Sanjay has supported the testimony of the (10) cri.apeal-317.2005.odtcomplainant in respect of the happenings took place after themain incident. The testimony of this witness also remainedunshattered in the cross-examination and like thecomplainant, this witness has also denied the defence ofaccused that earlier to the incident, he was prevented fromtaking Darshan. 13.Learned Additional Sessions Judge has observedthat the prosecution has not examined star witness GayabaiShinde who had seen the act of accused for the first time.However, the complainant in his cross-examination stated thatafter hearing the shouts of Gayabai, he rushed to the spot ofincident within a minute which indicates that he was verymuch present close to the temple. Further, when thecomplainant had clearly witnessed the incriminating act of theaccused, then there was no necessity for the prosecution toexamine Gayabai Shinde on the same point. Whateverevidence produced by the prosecution was to be scrutinized bythe learned Additional Sessions Judge to ascertain whetherthe respondent/accused had committed any crime. Therefore,it was not open to the learned Additional Sessions Judge toobserve that some other persons were required to beexamined. (11) cri.apeal-317.2005.odt14.Further, the learned Additional Sessions Judge hasobserved that though PW-2 Laxman Kolhe being a panch tothe spot panchnama supported the prosecution case, but hedid not utter anything about derogatory act of the respondent/accused insulting religion of Hindu people. However, theprosecution had examined this witness Laxman Kolhe forspecific purpose i.e. to prove the contents of spot panchnama,and therefore, he was not supposed to make any comment onthe act of respondent/accused since he was not present at thetime of actual incident. Thus, the observation of learnedAdditional Sessions Judge to that effect is definitely erroneous.15.Further, it appears that the learned AdditionalSessions judge has observed that the prosecution did notmake any effort to collect sample to establish conclusively thatthe respondent/accused really had passed urine on the idol ofGod Hanuman. Admittedly, no such sample was collected bythe Investigating Officer. However, the investigation must havestarted after lodging of F.I.R. and after about 2 to 3 hours ofthe incident. The learned trial Court has specifically observedthat the spot panchnama was recorded after two hours of theincident, and therefore, there was every possibility of drying offloor and in that case there was no opporunity of collecting (12) cri.apeal-317.2005.odtsample. It is settled position that occular evidence definitelyprevails over medical or scientific evidence. In the instantcase, as observed earlier, there is reliable evidence of an eyewitness already on record. Thus, considering the evidence onrecord, the prosecution has definitely established the act ofpassing urine on the idol of God Hanuman by therespondent/accused. Eye witness Sheshrao, who had lodgedthe report, has convincingly established the incriminating actof the accused and his version is well supported by PW-3Sanjay Kajale who had immediately saw the people bringingaccused out of the temple just after the incident. Moreover,the prosecution witnesses have also stated the abuses utteredby respondent/accused in filthy language. Therefore, theobservation of the learned Additional Sessions Judge andfinding thereon are definitely perverse and contrary to theevidence on record. Therefore, interference in the impugnedjudgment is necessary.16.The learned trial Court has infact appreciated theevidence on record in proper manner and held that act of theaccused was sufficient to hurt the feelings of a particular classof the people. Thus, the ingredients of Sections 295, 504 and506 of I.P.C. have been clearly established in the instant case,
Decision
(13) cri.apeal-317.2005.odtand therefore, the conviction recorded by the learned trialCourt needs to be restored by setting aside the impugnedjudgment and order of the learned Additional Sessions Judge,Majalgaon.17.In the result, the appeal stands allowed and theimpugned judgment and order dated 18.01.2005 passed by thelearned Additional Sessions Judge, Majalgaon in CriminalAppeal No. 10/2004 is hereby set aside and the judgment andorder of conviction dated 05.05.2000 passed by the learnedJudicial Magistrate, First Class, Majalgaon in R.C.C. No.97/2000 is upheld and restored. The respondent/accusedshall surrender himself before the concerned Police Stationwithin three months to undergo the sentence awarded to him.18.The appeal is accordingly disposed of. (SANDIPKUMAR C. MORE, J.)VD_Dhirde