High Court
Legal Reasoning
Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 18 ::omissions, amounting to contradictions. Whatever the informanthas deposed to before this Court regarding two more blows andpressing of neck of Kishor is an improved version. To that extent,we are not inclined to believe his evidence.18.P.W.3 Archana (widow of the deceased) was also in thehouse. Her evidence indicates the appellant Shivaji to have givenonly one blow on the head of Kishor. The cause of death of Kishoris head injury with strangulation. There is nothing in evidence toindicate that the head injury suffered by the deceased itself wassufficient to cause his death in ordinary course of nature. Althoughthe appellant Shivaji was annoyed, his going back to his residenceand coming armed with a tong would not constitute the act to havebeen committed as a result of grave and sudden provocation. Moreso, when Kishor (deceased) had already gone his home. Theappellant Shivaji entered Kishor’s house. The same constituted anoffence of criminal trespass, punishable under Section 452 of theCr.P.C.19.Appellant Shivaji assaulting Kishor on his head with atong would, in our opinion, be an offence of attempt to commitmurder. In our view, the appellant Shivaji has committed offencepunishable under Sections 307 and 452 of the Indian Penal Code.We are not in agreement with the finding recorded by the TrialCourt, holding the appellant Shivaji to be guilty of offence of murder. Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 19 ::To that extent, interference with the impugned order of convictionand consequential sentence of appellant Shivaji is warranted. Inthe result, the appeals stand dispose of in terms of the followingorder :- O R D E R(i)Criminal Appeal No.136/2021 is partly allowed. (ii)Conviction of the appellant Shivaji Gangadhar Borhade forthe offence punishable under Section 302 of the Indian PenalCode, by judgment and order dated 21/1/2021, passed bylearned Additional Sessions Judge, Vaijapur, DistrictAurangabad in Sessions Case No.53/2015, and theconsequential sentence of life imprisonment is set aside.Instead, the appellant Shivaji Gangadhar Borhade isconvicted for the offence punishable under Section 307 of theIndian Penal Code and therefore, sentenced to suffer rigorousimprisonment for eight (8) years and to pay fine of Rs.2000/-(Rupees two thousand), in default to undergo rigorousimprisonment for six months. (iii)The order of conviction and consequential sentence of theappellant Shivaji Gangadhar Borhade for the offencepunishable under Section 452 of the Indian Penal Code tostand unaltered.
Arguments
Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.136 OF 2021Shivaji Gangadhar BorhadeAge 35 years, Occu. Agril.,R/o Rampuri Adgaon, Tq. Gangapur,District Aurangabad … APPELLANTVERSUSThe State of Maharashtra (Copy to be served on Public Prosecutor,High Court of Judicature of Bombay,Bench at Aurangabad) … RESPONDENT.......Mr. A.S. Barlota, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent ....…WITHCRIMINAL APPEAL NO.302 OF 2021Shri Sharad s/o Parasram Borhade,Age 29 years, Occu. Agriculture, R/o Wadgaon Rampuri, Tq. Gangapr,District Aurangabad… APPELLANTVERSUS1.The State of MaharashtraThrough Police Inspector,MIDC Waluj Police Station,Aurangabad(Copy to be served on Public Prosecutor,High Court of Judicature of Bombay,Bench at Aurangabad)2.Shivaji Gangadhar BorhadeAge 33 years, Occu. Agriculture, R/o Rampuri Wadgaon, Tq. Gangapur,District Aurangabad Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 2 ::(The present respondent No.2 alreadysentenced for life imprisonment with fine of Rs.2000)3.Gangadhar Kaduba Borhade,Age 57 years, Occu. Agriculture,R/o Rampuri Wadgaon, Tq. Gangapur,District Aurangabad4.Punjaram Kaduba Borhade,Age 51 years, Occu. AgricultureR/o Rampuri Wadgaon, Tq. Gangapur,District Aurangabad5.Ujawala w/o Shivaji Borhade,Age 29 years, Occu. Household,R/o Rampuri Wadgaon, Tq. Gangapur,District Aurangabad6.Kaduba Ramrao Borhade,Age 75 years, Occu. Household,R/o Rampuri Wadgaon, Tq. Gangapur,District Aurangabad… RESPONDENTS(Accused Nos.1 to 5).......Mr. E.G. Irale, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent No.1 – State Mr. A.S. Barlota, Advocate for respondents No.2, 3, 5 & 6Mr. S.K. Shinde, Advocate holding for Mr. R.V. Gore, Advocate for respondent No.4 ....…WITHCRIMINAL APPEAL NO.166 OF 2023The State of Maharashtrathrough Police Inspector,Police Station, MIDC Waluj,Tq. Gangapur, Dist. Aurangabad… APPELLANTVERSUS1.Shivaji Gangadhar Borhade,Age 28 years, Occu. Agriculture2.Gangadhar Kaduba Borhade, Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 3 ::Age 52 years, Occu. Agri.3.Punjaram Kaduba Borhade,Age 46 years, Occu. Agri.4.Ujawala Kaduba Borhade,Age 24 years, Occu. Household5.Kaduba Ramrao Borhade,Age 70 years, Occu. HouseholdAll R/o Rampuri Wadgaon,Tq. Gangapur, Dist. Arangabad … RESPONDENTS(Orig. Accused Nos.1 to 5).......Mr. S.D. Ghayal, A.P.P. for appellant Mr. A.S. Barlota, Advocate for respondents No.2, 4 and 5 ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 21st February, 2024Date of pronouncing judgment : 6th March, 2024JUDGMENT (PER R.G. AVACHAT, J.) This group of three appeals is being decided by thiscommon judgment since the challenge therein is to the jdgment andorder dated 21/1/2021, passed by learned Additional SessionsJudge, Vaijapur, District Aurangabad, in Sessions CaseNo.53/2015. Criminal Appeal No.136/2021 is against conviction ofthe appellant Shivaji Gangadhar Borhade for the offencepunishable under Sections 302 and 452 of the Indian Penal Codeand consequential sentences of life imprisonment and rigorous Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 4 ::imprisonment for three years respectively and fine with defaultstipulation. Both the sentences have been directed to runconcurrently. The other two appeals were preferred against acquittalof the respondents therein of the offences punishable underSections 143, 147, 148, 504 read with 149 of the Indian Penal Codeand Sections 143, 147, 148, 302, 452, 504 read with 149 of theIndian Penal Code. This Court, however, vide order dated31/1/2023, restricted the scope of those appeals only against thejudgment and order of acquittal of the respondents therein of theoffences punishable under Sections 143 and 147 of the IndianPenal Code. FACTS :-2.The First Information Report (F.I.R.) Exh.53) waslodged by P.W.1 Sharad on 2/5/2015. The gist of the prosecutioncase as is disclosed from the police papers is as under : P.W.1 Sharad would reside along with his father and 2brothers in a house standing on their agricultural land. AppellantShivaji (in Criminal Appeal No.136/2021) was a distant relative ofthe informant. He has his agricultural land adjoining the land of theinformant. There was a dispute between the two families over aBandh that separates their lands. The appellant Shivaji had Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 5 ::dismantled a portion of the Bandh on 4/4/2015. A meeting of eldersfrom both the families and some villagers was, therefore, held. Itwas decided to have both the lands measured through a Surveyorand then lay/ construct a Bandh.3.It is also the case of the prosecution that it was2/5/2015, the informant was engaged in tractor repairing work. Itwas by 5.00 p.m. The informant’s wife and the wife of his brother(Kishor) were home. Kishor (deceased) was present outside thehouse. The house of the appellant Shivaji was also in theneighbourhood. Appellant Shivaji and the respondents in AppealNos.302/2021 and 166/2023 – Gangadhar, Punjaram, Ujawala andKaduba (acquitted accused) came together. All of them picked upquarrel with Kishor. Appellant Shivaji was questioning Kishor as towhy did he defame him in the village alleging him to havedismantled the Bandh. All of them started beating up Shivaji’s wifeUjawala. Informant and his wife Sujata intervened. Kishor wasasked to go home. He obliged. The appellant Shivaji hurriedlywent his home and returned with a tong (Chimta), an instrumentused for plucking of ripe cotton flowers. He followed Kishor to hishouse and assaulted on Kishor’s head with tong. Kishor fell. Hebecame unconscious. Appellant Shivaji and the respondents thenfled. The informant, with the assistance of others, rushed Kishor toGhati Hospital, at Aurangabad. The doctor there, on examiningKishor, declared him dead. The informant, therefore, lodged the Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 6 ::F.I.R. (Exh.53) with M.I.D.C. Police Station, Waluj, Aurangabad. Acrime vide C.R. No.I-89/2015 came to be registered for the offencespunishable under Sections 302, 323, 452, 143, 147, 148, 149 of theIndian Penal Code and Section 135 of the Maharashtra Police Actcame to be registered. 4.The scene of offence panchanama was drawn.Autopsy was conducted on the mortal remains of deceased Kishor.Pursuant to the disclosure statement made by Shivaji, a tong cameto be seized under the panchanama (Exh.5). Statements ofpersons acquainted with the facts and circumstances wererecorded. Upon completion of the investigation, the appellantShivaji and the respondents were proceeded against by filing acharge sheet. The case was committed to the Court of Sessions,Vaijapur (Trial Court). The Trial Court framed the Charge (Exh.32).The prosecution examined 8 witnesses. On appreciation of theevidence in the case, the Trial Court convicted the appellant Shivajiand acquitted the respondents as stated above.5.Heard. Learned counsel for the appellant would submitthat, the prosecution has suppressed the genesis of the case.Admittedly, there was a dispute over the Bandh. Residentialhouses of both, the appellant Shivaji and the respondents on onehand and the informant and his family on the other were in theneighborhood of each other. A quarrel had ensued over carving of Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 7 ::the Bandh. None of the respondents even scuffled with deceasedKishor. An oral wrangle took place between deceased Kishor andappellant Shivaji. The incident occurred in a spur of moment. Theclose reading of the prosecution evidence would indicate theappellant inflicted single blow on the head of Kishor. While the postmortem report indicates Kishor died of head injury andstrangulation, the F.I.R. and the supplementary statement given bythe informant (P.W.1 Sharad) are conspicuously silent to attributethe appellant Shivaji with strangulation. As such, the prosecutionwitnesses have made improvements over the F.I.R. and the policestatement. According to learned counsel, by no stretch ofimagination it could be termed to be an offence of murder. Learnedcounsel relied on the judgment of the Apex Court in case of MajorSingh Vs. State of Punjab & Anr. [ AIR OnLine 2022 SC 1487 ].6.The learned A.P.P. and the learned counsel for thecomplainant (appellant in Criminal Appeal No.302/2021) would, onthe other hand, submit that, both P.W.1 Sharad and P.W.2 Baluhave categorically deposed indicating involvement of therespondents in assaulting deceased Kishor. The respondents weresix in number. All of them were the family members. They hadcome together to assault Kishor. The post mortem report indicates26 injuries on the person of the deceased. According to learnedcounsel, the offence of murder has been made out againstappellant Shivaji. They would further submit that, the respondents Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 8 ::have committed offence of rioting and they, therefore, need to beconvicted therefor.7.The learned counsel for the appellant/ complainantwould submit that, the F.I.R. is not an encyclopaedia. Theinformant and another witness have given graphic details of theincident in question. The informant’s brother had met withhomicidal death. One can imagine his plight. A minor omission inF.I.R. has, therefore, been occurred. It was also submitted bylearned A.P.P. and learned counsel for the appellant/ complainantthat superficial and minor injuries on the person of the accusedneed not be explained by the prosecution. In support thereof, theyrelied on the judgment of the Apex Court in case of Amar Malla Vs.State of Tripura [ 2002 AIR (SC) 3052 ].8.According to learned counsel for respondents, in viewof their acquittal, the presumption of innocence has beenreinforced. If two view are possible on appreciation of theevidence, the one which favours the respondents needs to beadopted. According to them, there is no reason to interfere with thejudgment of acquittal. They, therefore, urged for dismissal of theappeals against acquittal.9.Considered the submissions advanced. Perused theevidence on record. Although the prosecution has examined 8witnesses, the relevant evidence for deciding these appeals would Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 9 ::be that of the Medical Officer who conducted autopsy, and the eyewitnesses namely P.W.1 Sharad (informant), P.W.2 Balu and P.W.3Archana.10.So far as regards evidence as regards disclosurestatement made by appellant Shivaji, pursuant to which the tongcame to be recovered is concerned, the Trial Court has not reliedon the same for the reason the investigating officer to have alreadyinformed the panch witnesses that tong was to be recovered fromthe house of the appellant. The Trial Court was, therefore, right inobserving that it was not the disclosure statement relevant underSection 27 of the Evidence Act.11.P.W.5 Dr. Sachin was a Resident Medical Officer withGovernment Medical College & Hospital, Ghati, Aurangabad at therelevant time. He conducted the post mortem examination of thebody of Kishor on 3/5/2015. He noticed following 26 injuries on theperson of the deceased, besides 8 corresponding internal injuries.The post mortem report finds place at Exh.81.1)A crescent shaped contused abrasion of size 1 cm x 0.2 cm.,over anterior aspect of neck over the thyroid cartilage region,0.5 cm. lateral and below the prominence Adams apple,reddish.2.A crescent shaped contused abrasion of size 1 cm. x 0.2 cm.,over left anterior aspect of neck at the level of Adams apple 1cm. lateral from midline and 0.5 cm. from injury No.1,reddish.3.A crescent shaped contused abrasion of size 1 cm x 0.2 cm. Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 10 ::over right anterior aspect of neck 1.5 cm above level ofAdams apple and 1 cm lateral to midline, reddish.4.A crescent shaped contused abrasion of size 1 cm x 0.2 cm.over left anterior side of neck 0.5 cm above the level ofAdams apple 1.5 cm. lateral from midline and 1 cm infero-lateral to injury No.3, reddish.5.Linear abrasion of size 3 cm x 0.2 cm. obliquely placed overleft lateral aspect of neck, at the level of Adams applereddish.6.Laceration of size 3 cm x 1 cm x bone deep over lateralaspect of right eyebrow region, reddish.7.Laceration of size 2 cm x 1.5 cm x bone deep, over leftforehead and medial aspect of left eyebrow region, reddish8.Contused abrasion of size 1 cm x 1 cm over middle 1/3 ofnasal bridge region reddish.9.Contusion of size 4 cm x 3 cm over right lower eyelid andupper maxillary region, reddish.10.Laceration of size 2 cm x 1 cm x muscle deep, over left sideof upper lip, 1 cm lateral to midline, reddish.11.Laceration of size 2.5 cm x 1 cm x muscle deep, over leftside of lower lip. 1 cm lateral to midline, reddish.12.Contusion of size 1.5 cm x 1 cm over antehelix of left earpianna, reddish.13.Laceration of size 2 cm x 0.5 cm x cartilage deep over upper1/3 of left ear pinna, reddish.14.Incised looking laceration of size 4 cm x 1 cm x bone deep,horizontally placed over lower border region and parallel to ofleft side of mandible, 1 cm from midline, reddish.15.Incised looking laceration of size 2 cm x 1 cm x bone deep,triangular in shape over antero-inferior region of midline ofchin, reddish.16.Incised looking laceration of size 5 cm x 1.5 cm x bone deepover lower border region and parallel to of right side ofmandible, 3 cm from midline, reddish. Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 11 ::17.Contused abrasion of size 6 cm x 6 cm irregular, obliquelyplaced from above down-vardsover right maxillary and cheekregion, reddish.18.Laceration of size 0.75 cm x 0.5 cm x bone deep over rightzygomatic region.19.Three abrasions of size 0.5 cm x 0.5 cm each over infero-lateral aspect of left angle of mkandible, reddish.20.Contused abrasion of size 1.5 cm x 1.5 cm obliquely placedover dorsal aspect of distal 1/3 of right forearm, reddish.21.Contused abrasion of size 1.5 m x 1.5 cm, obliquely placedover ventral aspect of distal 1/3 of left forearm reddish.22.Abrasion of size 0.5 cm x 0.5 cm over sorsal aspect of leftelbow region, reddish.23.Contused linear abrasion of size 9 cm. x 0.5 cm. obliquelyvertical over middle 1/3 of medial side of left thigh, reddish.24.Contused linear abrasion of size 3 cm x 0.5 cm over lower1/3 of medial side of left thigh, 1 cm below injury number 23,reddish.25.Abrasion of size 0.5 cm x 0.5 cm irregular over anterior sideof left knee cap region reddish.26.A bony hard swelling of size 4 cm x 4 cm x 2 cm over left sideof occipital region.Five palpable fractures were also found. All the injuries wereantemortem and fresh. On internal examination two injuries were found on thehead :1)Under scalp haematoma of size 6 x 6 x 1 cm over righttemporal and preamuricular reddish.2)under scalp haematoma of size 7x6 cm over left eye parietal. Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 12 ::Two following skull fractures were found.1)Linear irregular minimally displaced fracture of length 9 cmleft squamous part and anterior petrous part of temporalwound.2)Linear irregular minimally displaced fracture of length 3 cmon orbit roof bone in anterior cranial fossa. In brain there was contusion admeasuring 3 cm x 3 cm overleft frontal region. Brain matter congested and grosslyoedematous.On neck dissection, following eight injuries were noticed :1)Bruise of size 3 cm x 2 cm over right side of neck.2)Bruise 4 cm x 3 cm over left side of neck.3)Haematoma 4 cm x 3 cm x 2 cm over left antero-lateralaspect of upper 1/3 of left side of sterno-cleidomastoid andleft parathyroid muscles of neck.4)Haematoma of size 3 cm x 3 cm x 1 cm over right antero-lateral aspect of sublingual and peri-mandibular strapmuscles of neck, reddish.5)Haematoma of size 2 x 2 x 1 cm over left lateral aspect ofstrap muscles of neck, reddish.6)Contusion of size 2 x 2 cm of soft tissue around left end ofhyoid bone, reddish7)Adduction fracture of tip of left side of hyoid bone. Thefractured margins are blood infiltrated.8)Contusion of wall and mucosa of larynx and adjacent tracheaover an area of size 4 x 6 cm reddish. Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 13 :: In the opinion of P.W.5 Dr. Sachin, the cause of deathwas “Head Injury With Throttling”. In his further opinion, the injuriesmentioned in Column No.17 to 20 of the post mortem report werepossible with an instrument like tong. According to him, single blowof the tong on the head was sufficient to cause death, dependingupon the impact and force of the blow.12.P.W.1 Sharad (informant) was a real brother of thedeceased. His evidence indicates that, the agricultural lands of hisfamily and that of the appellant Shivaji adjoined each other. Boththe lands have been separated by an existence of a Bandh.Residential houses of both the parties stand in the neighborhood ofeach other on their respective lands. Appellant Shivaji wassuspected to have dismantled/ carved the Bandh on 30/4/2015. itwas decided to have the lands measured through Surveyor andthen lay a Bandh.13.The incident took place by 5.00 p.m. on 2/5/2015. It isin the evidence of P.W.1 Sharad (informant) that, appellant Shivajiand all the respondents came near to his residence. He wasengaged in tractor repairing work. Appellant Shivaji and therespondents were abusing. He was somewhat away from them.He (informant), therefore, went close to them. Appellant Shivajithereupon questioned him as to why did he insult him (Shivaji) inthe village, alleging him to have dismantled the Bandh. It is further Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 14 ::in his evidence that the appellant and all the respondents startedbeating up Kishor with fists and kicks. It is further in his evidencethat, respondent Ujawala (wife of Shivaji) instigated all otherssaying “Not to leave Kishor alive”. It is further in his evidence that,he therefore asked Kishor to go home. Kishor obliged. AppellantShivaji then went to his house hurriedly. He returned with a tong.Shivaji followed Kishor to his house and inflicted blow on Kishor’shead with a tong. It is further in his evidence that, Shivaji gave twomore blows on the face of Kishor with the tong. According to him,Shivaji pressed Kishor’s neck. Kishor thereby becameunconscious. The appellants thereafter ran away.14.P.W.3 Archana (widow of deceased) testified that,Kishor was sitting on the platform of the house. It was by 5.00 p.m.on 2/5/2015. Appellant Shivaji and the respondents came together.They started talking with Kishor and even beat him up with fist andkick blows. According to her, she along with her co-sister and theinformant came there. Her evidence further indicates that,appellant Shivaji went his house hurriedly and brought tong withhim. Kishor thereupon ran into his house. Appellant Shivajifollowed him. She and her co-sister Sujata followed him to herhouse. Shivaji assaulted on the head of Kishor with a tong. Kishorthereby fell. He suffered bleeding injury and became unconsciousthereby. Both the informant and P.W.3 Archana were subjected to asearching cross-examination. In response to the questions put to Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 15 ::her, Archana testified that, Kishor, on having been inflicted with asingle blow, fell down. She, however, denied that, Kishor sufferedinjuries due to fall on a sill. According to her, dismantling of theBandh was the only reason for quarrel and the incident dated2/5/2015. She admitted that, there was heated exchange of words(quarrel) between Shivaji and Kishor (deceased). She furthertestified that, appellant Shivaji got annoyed (angered) because ofabusive words. The quarrel continued for about 10 to 15 minutespreceding the assault with a tong. It is further in her evidence that,during the quarrel, appellant Shivaji angrily went in his house andbrought with him a tong. She went on to admit that, no fight/ scuffletook place between Shivaji and Kishor before infliction of assaultwith tong. It is further in her evidence that no fight took placebetween deceased Kishor on one hand and the respondents on theother. Her evidence further indicates that, respondent Kadu wasaround 80 years of age.15.The informant (P.W.1 Sharad) testified in his cross-examination that, respondent Kadu was 80 years of age.Gangadhar was 60 plus. He was confronted with F.I.R. (Exh.53)and his supplementary statement. Both the F.I.R. and hissupplementary statement are silent to mention therein the appellantShivaji to have pressed Kishor’s neck with tong. This is materialomission, amounting to contradiction. His evidence furtherindicates that he was away from the place whereat the quarrel Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 16 ::ensued. He was engaged in tractor repairing work. When he cameto the place where the quarrel was going on, he saw the deceasedand the respondents hurling abusive words against each other. Heeven claimed ignorance as to who started hurling the abuses first.He denied that scuffle was there between Kishor and Shivaji. He,however, admitted that, both Kishor and Shivaji tried to rush on theperson of each other. Kishor too was annoyed. He admitted that,none of the respondents beat up his wife and Archana, widow ofKishor. The quarrel took place at a site between both the houses.It is further in his evidence that, the said quarrel took place all of asudden. 16.Close reading and appreciation of the evidence of boththese eye witnesses lead us to conclude that they did not know atwhose instance the quarrel ensued first. The quarrel took place ata site in between their respective houses. It, therefore, cannot besaid that, appellant Shivaji and the respondents went over to theplace of the informant, to describe them as aggressors. Quarrel for15 minutes ensued before appellant Shivaji inflicted blow on thehead of Kishor with a tong. None of the respondents assaultedKishor. The reason behind the quarrel was dismantling of a Bandhon 30/4/2015. Appellant Shivaji was suspected to have dismantledthe same. Since there is no evidence to indicate at whose instancethe quarrel had begun, we cannot conclude the respondents andappellant Shivaji to have formed unlawful assembly, the object Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 17 ::whereof was to commit rioting. The Trial Court, on appreciation ofthe evidence of both the eye witnesses, has acquitted therespondents of the offences with which they were charged. Ontheir acquittal, the presumption of innocence has been reinforced.True, the appellate Court can reappreciate the entire evidence. Onclose scrutiny of the evidence on record, however, we are unable totake a different view. We do not find the finding recorded by theTrial Court acquitting the respondents to be perverse, warrantinginterference therewith. In our view, therefore, both the appealsagainst acquittal do fail.APPRECIATION :17.Admittedly, when the quarrel took place, neither Shivajinor any of the respondents were armed with any weapon. It is onlyafter abusive words hurled against each other by deceased Kishorand appellant Shivaji, the appellant Shivaji hurriedly went his houseand returned with a tong. By that time, Kishor had already enteredhis house on request of the informant. The appellant Shnivajifollowed Kishor and assaulted on his head with a tong. Kishorthereby suffered head injury. It is reiterated that, the F.I.R. and thesupplementary statement of the informant is silent to state theappellant Shivaji to have given two more blows on the face ofKishor with the tong. The same is also silent to attract appellantShivaji to have pressed Kishor’s neck with the tong. These are vital
Decision
Criminal Appeal No.136/2021 with302/2021 & 166/2023:: 20 ::(iv)Both the substantive sentences to run concurrently.(v)Criminal Appeals No.302/2021 and 166/2023 are dismissed.(vi)All the Criminal Appeals are disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-