High Court

Legal Reasoning

-1- Cri-Appeal-639-2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 639 OF 2005The State of MaharashtraThrough Pimpalner Police Station,Taluka Sakri, District Dhule.… Appellant[Ori. Informant]Versus1.Naval Sukdev Gharate,Age 35 years,2.Madhukar Sukdev Gharate,Age 34 years,[Appeal is abated against Respondent No.2 vide orderdated 27.02.2025]Both R/o. Samode, Taluka Sakri,District Dhule.… Respondents…..Mr. N. D. Batule, APP for the Appellant State.Mr. A. S. Sawant, Advocate for the Respondent No.1...... CORAM :ABHAY S. WAGHWASE, J.Reserved on : 15.07.2025Pronounced on : 23.07.2025.JUDGMENT : 1.The appellant - State takes exception to the judgment andorder passed by IInd Ad-hoc Additional Sessions Judge, Dhule dated29.04.2005 in Sessions Case No. 100 of 2003, which was tried againstaccused respondents herein for commission of offence punishable under -2- Cri-Appeal-639-2005sections 447, 324, 323, 504, 506 read with section 34 of Indian PenalCode.FACTUAL MATRIX2.In brief case of prosecution in trial court is that, informantAmit, an agriculturist had been to the field on 11.02.2002 along with hisbrother Bhushan. That time, accused no.1 Naval committed criminaltrespass and also issued threats by questioning why water was not givento his land and issued threats to cut his legs. Shortly thereafter, accusedno.2 Madhukar also committed trespass. He initially abused informant,threw chilly powder in the eyes of both, informant and Bhushan, andthereafter both of them indulged in beating informant and Bhushan bymeans of fist and kicks blows and stone causing bleeding injuries.Agriculturist labour Madhukar intervened, but he was also giventhrashing. Accused also pushed informant and snatched his gold chain.Police was approached, who referred them to hospital and on reportlodged by informant, crime was registered vide complaint at Exh.27.PW7 Ahire carried out investigation and after gathering sufficientevidence, charge-sheeted accused and accused persons were made to facetrial before IInd Additional Sessions Judge, Dhule, who after appreciatingoral and documentary evidence and after hearing both sides, acquittedboth the accused, resulting into instant appeal. -3- Cri-Appeal-639-2005SUBMISSIONS3.Sum and substance of arguments advanced by learned APPis that, prosecution has examined informant as well as his brotherBhushan. That, both of them assaulted that day. That, they both werereferred to hospital and were examined by PW4 Dr. Mangesh Barde, whotreated them, issued injury certificates and even stepped into the witnessbox at Exh.36. Learned APP submits that, along with the evidence ofsuch witnesses, there was evidence of Investigation Officer and panchas,but the same has not been appreciated. That, no cogent reasons areassigned for disbelieving the prosecution evidence. He pointed out that,when injured themselves have testified about the events of abuse,throwing chilly powder and assaulting both of them, which was findingsupport from medical expert’s evidence, case of prosecution ought tohave been held as proved. That, prosecution had discharged its primaryburden. Learned trial Judge erred in acquitting the accused in spite ofavailability of such quality of evidence and hence he urges forinterference by allowing the appeal. 4.Learned counsel for accused supported the judgment ofacquittal and finding two points that, firstly, there is previous enmity andsecondly, there is delayed FIR and even delayed medical examinationrendering the case of prosecution doubtful. He also pointed out that -4- Cri-Appeal-639-2005witnesses are not consistent. Hence, learned counsel urges to dismiss theappeal for want of merits. EVIDENCE BEFORE THE TRIAL COURT5.Prosecution has, in support of its case, examined in all sevenwitnesses. Their role and status and the relevant portion of their evidenceis as under :PW1Amit Kharote is the informant. He is examined at Exhibit 26wherein he deposed that;“1.I have agricultural land bearing Gat No. 590 at villageSamode, Taluka Sakri, District : Dhule. My said agricultural land isin the name of my mother. Our Saldar by name Madhukar UttamMali and Shivdas Rama Bagul used to look after our agriculturalland.2.On 11/2/2002 at about 3-00 p.m. I and my brother BhushanChandrakant Kharote had gone to our land. At that time outSaldar Madhukar and Shivdas were working near well fitting ofpipes for giving water to onion crop. At that time accused no.1Naval Sukdev Gharate committed criminal trespass in ouragricultural land. Accused No. 1 Naval shouted and threatened tous that we should not give water in his land. At that time, I said toaccused no.1 Naval that, my father had entered deed of agreementto sale of said land, with elder brother of accused no.1 by namevasant Sukdev Gharate. Vasant Sukdev Gharate had agreed to sell -5- Cri-Appeal-639-2005said agricultural land, in which we were fitting pipes for wateringonion crop for consideration amount of Rs.60,000/- to my father.Accused no.1 Naval threatened to us that if we should try to givewater to onion crop, then he should cut our legs. We werecultivating said agricultural land since 1997.3.Thereafter accused no.2 Madhukar Sukdeo Gharate camethere. He committed criminal trespass in our land. Accused no.2abused to us. Accused no.2 Madhukar threw chilly powder of hishand faces of me and my brother Bhushan Chandrakant Kharote.Said chilly powder entered in our eyes. Itching irritated. Bothaccused beat me and Bhushan with fists and kicks. Accused no.1Naval Sukdev Gharate took stone in his hand and gave blow ofsaid stone on my left ear. At that time accused no.2 Madhukargave blow of fists on the mouth of my brother BhushanChandrakant Kharote. Bhushan received bleeding injury on hislips. At that time our Saldar Madhukar Uttam Mali tried tointervene. At that time both accused beat Madhukar Mali with fistsand kicks. Both accused threatened to Madhukar Mali to kill him.At that time of quarrel due to push and pulling, my golden chainfell on the ground. Thereafter we did not find it. Another SaldarShivdas Bagul came there. Both accused threatened to ShivdasBagul to kill and to cut his hand. As we frightened, I, Bhushan,Madhukar Mali and Shivdas Bagul ran towards our motorcycle.Thereafter I, Madhukar Mali and Bhushan went to Pimpalnerpolice station on our motorcycle. Police gave memo to us. We wentto Rural Hospital, Pimpalner. Prior to going to hospital, I gavecomplaint to police against both accused. Police reduced intowriting my complaint as per my say. Now my complaint is shown -6- Cri-Appeal-639-2005to me. It bears my signature. Contents are true and correct. It is atExh. 27. At the time of incident I had worn check shirt of orangecolour. Now shirt at article no.3 shown to me is the same. If astone by which accused no.2 Madhukar beat me, will be shown tome, I will identify it. Now stone at article no.2 is shown to me issame, by which accused no.2 Madhukar beat me. Blood was oozedfrom my left ear and fell on my shirt. Both accused present beforecourt are same. I produced my above said shirt in Pimpalner policestation in presence of 2 panchas.”PW2Deepak Bhamare has acted as pancha to spot panchanama Exhibit29. In his evidence at Exhibit 28, he deposed as under :“1.On 12/2/2002 police called me in Samode Shivar.Purushottam Korade was another pancha alongwith me.Complainant Amit Kharote showed spot of incident to we panchasand police. We saw that onion crop was crushed under feet. Oneplastic bag containing chilly powder was lying on the ground insaid onion crop. Said plastic bag was opened. Chilly powder wasscattered in the said crop on the ground. Complainant Amitshowed said chilly powder, plastic bag and one stone lying on theground, to us. Police collected said chilly powder along with earth,and said stone. Police seized said chilly powder alongwith earth inour presence. Police wrote which they and we saw. Police obtainedour signatures on said writing. Now spot panchanama is shown tome. It bears my signature. We panchas put our signatures on spotpanchanama after reading it. Contents of said spot panchanamawas true and correct. Said panchanama is at Exh.29.” -7- Cri-Appeal-639-2005PW3Rupchand Chaure acted as pancha to seizure panchanama Exh.34. PW4Mangesh Barde is the Medical Officer, who examined Amit,Madhukar and Bhushan. In his evidence at Exhibit 36, he deposedas under :“1.On 11/2/2002 I was on duty in Rural Hospital as MedicalOfficer at Pimpalner. On that day at 4-45 p.m. injured AmitTraymbakrao Kharote age 24 years, r/o Pimpalner came inhospital. I examined him. I found following injuries on his person :1)Abrasion on left external Pinna of left ear size 2 x 1 cmbleeding was present.2)Abrasion in front of tragus of left ear size about 1 cm.3)Blunt trauma on nail bed of left middle finger.Patient was complaining of itching of eyes and face.Accordingly I issued medical certificate of said patient. Probableweapon used blunt object. Nature of injury simple. Age of injurywithin one to two hours. Now medical certificate of patient AmitKharote shown to me. It is same. It bears my signature and stampand seal. Its contents are true and correct. It is at Exh. 37.2.On very day I examined Madhukar Uttam Mali at 4-50 p.m. Ifound following injuries on his person :1)Swelling with abrasion on forehead on right side. Size ofswelling 2 cm x 2 cm size of abrasion less than 1 cm.2)Blunt trauma on left sub postal region, tenderness waspresent. -8- Cri-Appeal-639-20053)Blunt trauma on right scapular region. No contusion buttenderness present.Probable weapon used hard and blunt object. Nature ofinjures simple. Accordingly I issued medical certificate of patient.Now it is shown to me. It bears my signature and stamp and seal.Its contents are true and correct. It is at Exh. 38.3.On very day I examined Bhushan Chandrakant Kharote at 4-50 p.m. I found following injuries on his person : 1)Cut wound on lower lip. Swelling present, bleeding present,size of cut 1 cm x less 0.5 c.m.2)Blunt trauma on abdomen left illiac region. There were nocontusion.3)Blunt trauma near right anterior superior illiac spine. Nocontusion, tenderness present.Probable weapon used hard and blunt object. Nature of injuriessimple. Age of injuries within 1 to 2 hours. Accordingly, I issuedmedical certificate to patient. Now it is shown to me. It bears mysignature and stamp and seal. Its contents are true and correct. Itis at Exh. 39. It is true that itching of eyes and face possible if anyperson throws chilly powder on the eyes and face of patient. It istrue that injuries at serial no.1 and 2 of medical certificate of Exh.37 are possible if any person beat patient with stone, which is nowshown to me. Said stone is at article no.2. Injury at serial no.3 ofabove said certificate at Exh. 37 is possible if it is caused by hardand blunt object like stone. It is true that injuries mentioned in -9- Cri-Appeal-639-2005medical certificate Exh. 38 and 39 are possible due to stone, whichis at article 2.”PW5Bhushan Kharote deposed at Exhibit 40 as under :“1.Before two years, I am studying B.A. My uncle KashinathKharote was working as Asstt. Forest Conservator. Traymbakraowas residing in Shradhanjali Apartment Pimpalner. I know VasantSukdeo Gharate r/o. Samode. In the year 1997 Traymbak Kharoteexecuted deed of agreement to sale in respect of land of VasantGharate for the consideration amount of Rs.91,000/- TryambakKharote paid amount of Rs.60,000/- by cheque as out of saidconsideration amount of Vasant Gharate. Said deed of agreementto sale was executed on stamp. Madhukar Mali and Shivdas RamaBagul both Saldars of Traymbak used to work in the agriculturalland of Tryambak as Saldars.2.On 11/2/2002 I and Amit went to agricultural land ofTryambak Kharote, for giving water to onion. Saldars of TryambakKharote, Madhukar Mali and Shivdas Bagul were fitting pipes togive water to onion crop. Both accused present before court camethere at 3-00 to 3-30 p.m. Both accused were abusing. Bothaccused said to us that we should leave that place. Saidagricultural land was owed by both accused. We should not givewater to onion crop. Accused no.2 Madhukar Gharate took chillypowder from the pocket of his pant. Said chilly powder was inplastic bag. Madhukar Gharate threw said chilly powder on thefaces of me and Amit. Chilly powder went into eyes of myself andAmit. Our eyes were itching. We rubbed our eyes. We did not see -10- Cri-Appeal-639-2005anything for 12 to 15 seconds. Madhukar Gharate gave 2 to 3blows of hand fist on my lips. At that time accused no.1 gave blowof stone on left ear of Amit. Blood oozed from bleeding injury ofear of Amit. At that time our saldar Madhukar Mali came there.Madhukar Mali, our saldar tried to rescue us. At that timeMadhukar Gharate hit Madhukar Mali on the ground. Our anothersaldar Shivdas Bagul came there. He tried to rescue us. Bothaccused beat Shivdas with fists and kicks. We frightened and rantowards road. Then after, I, Amit and Madhukar Mali went toPimpalner police station. Amit gave complaint to police. We tookmemo and went to Government hospital at Pimpalner. Bothaccused present before court are same. Now stone which is atarticle no.2 is shown to me, by which accused no.1 Naval gaveblow of said stone to left ear of Amit. I had worn full open shirt ofwhite colour having strips, at the time of incident. Now shirt whichis at article no.4 is shown to me is same. Which I had worn at thetime of incident.”PW6Nanaji Gharate acted as pancha to arrest panchanama Exhibit 48.PW7Garibdas Ahire, Police Head Constable, is the Investigating Officer.ANALYSIS6.State has pressed into service ground that there is convincingand legally acceptable evidence of PW1 Amit and PW5 Bhushan, who areconsistent and moreover, prosecution has examined the treating doctorfor the injuries suffered by informant. -11- Cri-Appeal-639-20057.On complete and meticulous re-appreciation, evidence ofinformant PW1 Amit and his brother PW5 Bhushan is crucial. On visitingExh.26, it is noticed that, according to informant, accused No.1 Navalafter committing criminal trespass issued threats to kill and gave fist andkicks blows both, PW1 Amit and PW5 Bhushan. Further according to him,fist and kick blows were also showered on Madhukar Mali and stone washit on his left ear. Whereas, regarding role of accused No.2 Madhukar isconcerned, PW1 Amit testified about hurling abuses, throwing chillypowder in the eyes of both, PW1 Amit and PW5 Bhushan, followed bygiving fist blows on PW5 Bhushan as well as Madhukar Mali.8.On visiting evidence of PW5 Bhushan as regards to accusedno.1 is concerned, allegations are of abuse and hitting stone blow on theleft ear of PW1 Amit and giving kicks and fist blows to Shivdas. Asregards to accused no.2 Madhukar is concerned, this witness PW5Bhushan alleged that, he abused him, throwing chilly powder and givingfist blow on him as well as making Madhukar Mali fall on the ground andkicks and fist blows given to Shivdas.9.On visiting their cross, it is emerging that, previous enmityadmitted by both PW1 Amit and PW5 Bhushan. PW1 Amit attributed fist -12- Cri-Appeal-639-2005and kick blows to Madhukar Mali, but such person is not examined. PW1Amit in his cross has admitted about not reporting police about accusedno.2 making Madhukar Mali fall on the ground. PW5 Bhushan in hiscross stated that, accused no.1 Naval flung stone on the left ear of Amiti.e. PW1. In para 4 he stated that a stone by which accused no.1 hit PW1was just like the stone Article 2 and he further candidly admitted that hecannot definitely state by which stone his brother was hit. Omission isbrought in his cross about Madhukar Mali coming to rescue and bothaccused showering fist and kick blows on Shivdas. Omissions andvariance are proved through the Investigating Officer in paragraph 3 and4 of the cross. Investigating Officer also admitted in cross about not filinginjury certificate of accused no.2. Another noticeable variance isregarding PW1 Amit testifying about losing gold chain during pushingand scuffling regarding which PW5 Bhushan has not uttered a word.10.Thus, here, previous animosity is coming on record, onlyPW1 Amit and PW5 Bhushan are examined and crucial and independentwitnesses like Madhukar and Shivdas are not examined for the bestreasons known to the prosecution. It is trite at law that, when there isprevious animosity and witnesses are related, there has to becorroboration from independent corner, however, here independentwitnesses are not examined. -13- Cri-Appeal-639-200511.Perused the judgment under challenge. The learned trialJudge has dealt with each and every aspect put-forth by prosecution intrial court. In the light of above stated weakness of prosecution case,learned trial court was left with no other alternative, but to hold evidenceof prosecution unworthy of credence. There is no infirmity in thefindings. Bearing in mind the law while dealing with appeal againstacquittal and as this court does not find any patent perversity to interfere,appeal deserves to be dismissed. Hence, the following order is passed : ORDERThe appeal is hereby dismissed. (ABHAY S. WAGHWASE, J.) Tandale