High Court

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-1- Cri.Appeal.299.2002IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 299 OF 20021.Laxman Jagannath Suryawanshi, }Age : 57 years, Occu. : Service, }… Abated 2.Bhilabai W/o. Laxman Suryawanshi, Age : 50 years, Occu. : Household, 3.Prakash s/o. Laxman Suryawanshi, Age : 28 years, Occu. : Education, All R/o. Dondaicha, Tq. Sindkheda, Dist. Dhule.… Appellants.(Accused Nos.1 to 3)Versus1.Nathmal Kisanlal Jain, Age : 67 Years, Occu. : Business, R/o. Dondaicha, Tq. Sindkheda, Dist. Dhule. 2.The State of Maharashtra… Respondents.…Mr. U. S. Malte, Advocate for Appellants.Mrs. Siddhi Kothari h/f. Mr. S. G. Ladda, Advocate for Respondent No.1.Mr. N. D. Batule, APP for Respondent No.2 – State.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 14th MARCH, 2024PRONOUNCED ON : 22nd MARCH, 2024JUDGMENT : 1.Judgment and order passed by Additional SessionsJudge, Dhule dated 10.05.2000 in Criminal Appeal No.8 of 1994,thereby convicting appellant nos.2 and 3 for offence punishable -2- Cri.Appeal.299.2002under section 323 of Indian Penal Code (IPC) and accused no.1 foroffence punishable under sections 342 and 323 of IPC, therebyconfirming the judgment and order passed by learned IInd JointJudicial Magistrate First Class, Sindkheda, is hereby assailed byfiling instant appeal.FACTUAL MATRIX2.Complainant a trader, who ran grocery shop inmunicipality market, was available in his shop around 8:00 a.m. to8.15 a.m. on 06.01.1990. There was previous verbal squabblesbetween complainant and accused on account of fall of water in histin roof. In that background, accused persons came to complainantand abused him in filthy language. Shortly thereafter, accusedagain came accompanied by policeman and he was taken to policestation. At the doors of police station, accused and his brotherMotilal were again abused and beaten. According to him, he andhis brother were confined in a room by accused no.1 policeconstable and again beaten by means of kicks and fists blows. Whenhis son Mahendra and his friend Prithaviraj came their to rescue,they were also beaten. Finally report to that extent was lodged,resulting into registration of crime. On completion of investigation, crime was registeredagainst all five accused persons and they were charge-sheeted for -3- Cri.Appeal.299.2002commission of offence under sections 323, 341 read with section34 of IPC. They were made to face trial before learned JudicialMagistrate First Class, Sindhkheda, vide S.T.C. No. 187 of 1990and on appreciation of evidence, learned trial court passedfollowing order :-“1. Accused no.2 Bhilabai Laxman Suryawanshi andAccused No.3 Prakash Laxman Suryawanshi are convictedfor the offence punishable under section 323 of I.P.C. andsentenced to pay Rs.500/- (Rs. Five Hundred) each and i/dsuffer S.I. for one month. Both accused acquitted for theoffence punishable under section 341 of I.P.C. 2.The Accused No.1 Laxman Jagannath Suryawanshiconvicted for the offence punishable under section 323 ofI.P.C. and sentenced to suffer R.I. three month and alsosentenced to pay fine Rs.500/- i/d suffer R.I. for one month.He is also convicted for the offence punishable undersection 342 of I.P.C. and sentenced to suffer three monthR.I. and sentenced to pay fine of Rs.500/- and in default heshould suffer R.I. for one month. The both punishmentshould suffer concurrently. 3.Their bail bond stand cancelled.”SUBMISSIONSOn behalf of Appellants :3.Learned counsel for appellants submitted that, there isfalse implication. Admittedly, complainant and accused hadinimical terms since previously. There is no witness to abuse the -4- Cri.Appeal.299.2002complainant by visiting his shop in the morning in spite of it beingcommercial area. Similarly, alleged beating has taken place inpolice station, but no witness has been examined. He pointed outthat, witnesses are also not consistent and their testimonies arefull of material omissions and contradictions. Medical evidencedoes not support ocular account. That, there is no independentwitness corroborating versions of complainant. Incident is blownout of proportion to simply implicate accused persons. Learnedtrial court has not considered that none of the ingredients forattracting the charges were available, still conviction has beenrecorded. That, there being improper appreciation of evidence, heprays to allow the appeal by setting aside the impugned judgmentand order. On behalf of respondents :4.In answer to above, learned APP for State as well aslearned counsel for original complainant would submit thatoccurrence has taken place in the early hours of the morning.Accused persons were regularly abusing complainant. Fatheraccused no.1 is in police department. Disadvantage of the same istried to be taken. That, after abuse and threat at shop, accusedpersons brought police personnel, took complainant to the policestation, beat him as well as his brother in the police station -5- Cri.Appeal.299.2002premises. They both suffered injuries. Son of complainant and onePrithviraj, who came to rescue, they were also beaten. They wereexamined by Doctor on same day. Doctor has deposed and issuedinjury certificates. Therefore, all necessary ingredients beingavailable, supported the findings of the learned trial court and bothlearned counsels prayed to dismiss the appeal for want of merits.EVIDENCE ON RECORD5.PW1 Nathumal in his evidence at Exh.35 deposedabout the incident that, while he was in his shop between 08:00 to8:30 a.m. accused nos.2 and 3 came and abused in filthy language,questioning him whether premises belongs to his father. Theythreatened to see him and went, but came back with two policemenand he and his brother were taken to police station. Their accusednos.1 to 3 started beating him and his brother with kicks and fistblows on his check, necks and private part. When his son andPrithviraj came in police station, they were also beaten by accusednos.1 and 3. Accused no.1 then confined them in a room behindpolice station and was again beaten. Only when mob gathered, theywere allowed to go. He and others were taken to hospital forexamination and he lodged report.6.PW2 Suresh, a neghbouring shop owner deposed that, -6- Cri.Appeal.299.2002he saw accused nos. 2 and 3 abusing complainant. Later on, twopolice constables came and took complainant and his brother topolice station. Witness claims that he also followed. According tohim, accused no.1 beat the complaint and his brother in policestation. Accused no.1 and other police confined the complainantand his brother Motilal in one room behind the police station.Accused no.2 beat the complainant and Motilal with fists and kicks.On arrival of some respectable persons, accused no.1 was asked torelease complainant and other.7.PW3 Mahendra, son of complainant deposed that,accused Nos.2 and 3 came and abused his father. Later on, hisfather and uncle were taken to police station and he and Prithvirajfollowed them. When complainant and his uncle entered policestation, all accused beat them and when he and Prithviraj went torescue, they were also beaten and further taken in a room andconfined. 8.PW4 Dr. Santosh Avad deposed about examiningNathumal, Mahendra, Pruthviraj, Motilal and he narrated theinjuries noticed by him and identified injury certificates (Exh.43,44, 45 and 46. -7- Cri.Appeal.299.20029.PW5 Motilal, brother of complainant also stated aboutaccused nos.2 and 3 initially abusing, he and his brother beingtaken to police station and at the doors of police station, he and hisbrother being beaten by kicks and fist blows and confined in theroom behind police station. ANALYSIS10.Primary criticism against judgment is that, firstly,there is no independent witness. Secondly, due to previousquarrels there is false implication. Thirdly, witnesses areinconsistent and fourthly ocular account not finding support frommedical account. 11.On the lines of above arguments, if the testimonies areput to minute scrutiny, it is noticed that, complainant wasavailable in his shop around 8:00 a.m. to 8:30 a.m. He is categoricalabout arrival of accused nos.2 and 3 and abusing him. Immediateneighbour Suresh lend support to his version. They both areconsistent about complainant and his brother Motilal being takenby two policemen. Complainant and his brother Motilal areconsistent about being initially beaten by accused no.1 andthereafter by all accused in the premises of Police station.Complainant is very categorical about arrival of his son Mahendraand Prithviraj. They were also targeted and beaten for intervening. -8- Cri.Appeal.299.200212.Thus, both brothers as well as son and one Prithvirajare given thrashing in the police station premises. Nothingadverse has been brought in the cross so as to disbelieve theirversions. Mere failure of prosecution to examine independentpolice witness is no good ground to disbelieve their version, moreparticularly when it is inspiring confidence. There seems to be areason from police for not giving statement as only on arrival of amob, complainant was let loose from the room. Probably for suchreason, police have not made them as a witness. However, doctorhas deposed about examining complainant and others on06.01.1990 itself on being referred by police itself. He hasdescribed the nature and size of the injuries. He has issued andplaced medical certificates on record. Though injuries are simple,he has opined the same to be possible on account of assault by fistand kicks blows. In cross he has answered that, though injuries canbe self inflected, but also possible on account of contact with handand blunt object. There is no suggestion about injuries due to fall. Resultantly, here there is consistent ocular account ofinjured of not only complainant, but other injured witnesses.13.Learned trial court and first appellate court haverightly appreciated and inflicted sentence only for those offences -9- Cri.Appeal.299.2002for which there is evidence. It is the possible view that couldemerge on even re-appreciation of the evidence. Therefore, no faultcan be found in the appreciation of evidence and conclusion drawnby learned trial Court as well as appellate court. No case on meritsbeing made out, I proceed to pass following order : -ORDER i)The criminal appeal stands dismissed. ii)The Judgment and order passed by Additional SessionsJudge, Dhule dated 10.05.2000 in Criminal Appeal No.8 of 1994 ishereby maintained. (ABHAY S. WAGHWASE, J.) Tandale