High Court
Legal Reasoning
-1- Cri.Appeal.669.2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 669 OF 2005The State of Maharashtra,Through Police Station, Parner, Dist. Ahmednagar.… Appellant (Orig. Complainant) Versus1.Babaji Bhika Ghogare,Age : 35 years, Occu. : Agri.,2.Gangaram Bhika Ghogare,Age : 50 years, Occu. : Agri., 3.Rohidas Gangaram Ghogare,Age : 19 years, Occu. : Agri.All R/o. Shirsale, Tq. Parner, Dist. Ahmednagar. … Respondents(Orig. Accused)…Mrs. Chaitali Chaudhari – Kutti, APP for Appellant – State.Mr. N.C. Garud, Advocate for Respondent Nos.1 to 3.... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 19th JUNE, 2024PRONOUNCED ON : 3rd JULY, 2024JUDGMENT :1.By way of instant appeal, State is questioning thejudgment and order of acquittal passed by learned JudicialMagistrate First Class, Parner in R.T.C. No. 81 of 2000, acquittingpresent respondents from offence punishable under sections 323,324, 325, 504 and 506 read with section 34 of Indian Penal Code(IPC). -2- Cri.Appeal.669.2005IN NUTSHELL CASE OF PROSECUTION IN TRIAL COURT IS AS UNDER2.Parner Police charge-sheeted present respondent nos.1to 3 for above offences on the premise that, on 19.05.2000informant’s husband Vishnu was getting land measured throughsurveyor. Accused, who had visited the spot, initially uprooted themarking, abused informant’s husband Vishnu and thereafter,accused Babaji, Gangaram and Rohidas beat Vishnu, pelted stoneson informant’s nephew Gorakh and Eknath causing all of themsevere injuries. They visited police station and were referred tohospital and on report of PW4 Bhamabai, crime was registeredbearing No.117 of 2000. The same was investigated by PW9 ASIDnyandeo Dighe, who was Investigating Officer. Case was tried bylearned Judicial Magistrate First Class, Parner, who onappreciating the oral evidence of 9 witnesses and documentaryevidence, reached to a finding that case of prosecution is not freefrom doubt, version of prosecution does not pass test of credibilityand prosecution case is not proved beyond reasonable doubtextending benefit of doubt to all respondents herein by acquittingthem vide judgment and order dated 15.06.2005, which is nowtaken exception to by the State by filing instant appeal. -3- Cri.Appeal.669.2005SUM AND SUBSTANCE OF THE EVIDENCE ON RECORD3.PW1 Karbhari is the pancha to spot panchanama(Exh.22). PW2 Eknath deposed that, he has agricultural land inGut no.236. Land of accused is touching to his land and there iscommon bandh in between them. On 19.05.2000, measurementwas asked for. While marking was being done as per Surveyor,accused came there and uprooted the stones. They objected to themeasurement and abused him and his uncle Vishnu. When Vishnuasked them not to abuse, accused Babaji pelted stone on hisbrother Gorakh, causing him bleeding injury to the left eyebrow.Accused Gangaram pelted stone on Bhimabai and causing herbleeding injury. Accused Rohidas gave kick and fist blows to him.Thereafter, they all approached police. PW3 Vishnu stated that, on 19.05.2000, around 2:00p.m., there was measurement at the hands of Surveyor and thiswitness was putting boundary stones as per measurement. Thattime, accused came and objected to the measurement, startedabusing and when asked not to abuse, accused Babaji pelted stoneon Gorakh, causing him bleeding injury to left eyebrow. When hiswife came, Gangaram pelted stone on her forehead, causing herbleeding injury. Rohidas gave fist and kick blows to Eknath his -4- Cri.Appeal.669.2005nephew. All accused issued threats and went away. PW4 Bhamabai informant deposed that, incident tookplace at the time of measurement. Accused Nos.1 to 3 came andstarted destroying stone marks. Accused no.1 pelted stone towardsGorakh, which hit him on his frontal bone near left eyebrow.Gorakh fell down. Accused no.2 Gangaram pelted stone on herforehead. When her nephew Eknath came, Rohidas gave him kickand fist blows and also hit him with stones, and therefore, theyapproached police and she lodged report. PW5 Gorakh stated that, at the time measurement,accused came and tried to disturb the measurement. That, accusedstarted hurling abuses. Accused Babaji hurled stone on him, whichhit him on forehead near eyebrow, causing him bleeding injury.When his aunt came, Gangaram pelted stone, causing her injury toforehead. Rohidas showered fist and kick blows to Eknath. Hisaunt lodged report. PW6 Dr. Kashinath Andhale, PW7 Dr. Smita Mhaskeand PW8 Dr. R. K. Shelke, are medical practitioners, who examinedand treated injured witnesses. PW9 ASI Dnyandeo Dighe is the Investigating Officer. -5- Cri.Appeal.669.2005 Defence has also adduced evidence of DW1 Prakash, aSurveyor at Exh.65. According to him, he carried measurement byfixing boundaries in land Gut No.236 and recorded statement.According to him, there was objection to the boundaries. He drewpanchanama. Pancha witness refused to sign and so he came backto Parner.SUBMISSIONSOn behalf of Appellant :-4.Learned APP would point out that, prosecution hadproved the charges beyond reasonable doubt. That, informantherself was injured. Remaining injured too suffered injuries at thehands of accused and they are also examined. That, they all areconsistent about role played by each of the three accused. That,their testimonies have remained unshaken. That, medicalauthorities, who examined injured and issued certificates are alsoexamined by prosecution in trial court. Therefore, all necessaryingredients for attracting charges was very much available in theprosecution evidence in the trial court. However, it is pointed outthat, merely accepting defence witness testimony, who wasexamined at belated stage during trial, acquittal is recorded.According to learned APP, there was injured witness accountsupported by medical evidence, and therefore, learned trial courtought not to have discarded or doubted such evidence. According -6- Cri.Appeal.669.2005to learned APP, trial court failed to appreciate the evidence as wellas law and erred in acquitting the accused and giving benefit ofdoubt, and hence, she prays to allow the appeal by setting aside theimpugned judgment.On behalf of Respondents :-5.Per contra, learned counsel for accused respondentspointed out that, there is false implication due to previous enmity.That, there was no occurrence as alleged. According to him,independent witness DW1 Prakash, who was present at the time ofincident, flatly denied any occurrence of assault by accused as isreported by informant. That, there is false, afterthought andmotivated complaint. That, witnesses are not consistent. That,medical evidence does not tally with injured witness account. Thatmedical witness is not full-proof regarding injuries and therebyaccording to him, learned trial court committed no error inrefusing to accept the case of prosecution. According to him, thereis correct appreciation. Learned counsel emphasized that, in viewof acquittal passed by learned trial court, there is strongpresumption of innocence in favour of accused. That, in appeal,same cannot be disturbed, more particularly, when there is correctappreciation and possible view is taken by trial court. For all abovereasons, he prays to dismiss the appeal. -7- Cri.Appeal.669.2005ANALYSIS6.Informant Bhamabai (PW4) is the wife of PW3 Vishnu.She lodged report at Exh.28 at Parner police station at 16:00 hourson 19.05.2000 and the translated version is as under :- “ Complaint Exhibit No. 28PW 4 Date :19.04.2000I Sau. Bhagabai Vishnu Ghogare, Age 34, Occupation: Agriculture, r/atShirsule, Tal. Parner by remaining present at Police station and giving in writtenthat, I am residing with my husband and kids at the above mentioned place. Today i.e 19.05.2000 at around 2.00 O’clock in the afternoon thedemolition of ‘Bandh’ situated at Gat No. 234 and 236 at our farm was going on.At that time 1) Babaji Bhika Ghogare,2) Gangaram Bhikaji Ghogare 3) RohidasGangaram Ghogare, were picking up the stones placed by the people and settingthem aside. Then my husband, Vishnu Tukaram Ghogare, told them that youshould not do that. If you don't like the ad measuring, you return the admeasurement. At that time Balaji Bhika Ghogare 2) Gangaram BhikajiGhogare,3) Rohidas Gangaram Ghogare, beat me and my nephew, GorakshaKisan Ghogare, also other nephew Eknath Kisan Ghogare, all of us three withstones and abused and beat us and threatened us with insane language. Mynephew and I have to go to the hospital because of a blow to the head. Also,nephews Eknath and Goraksh want to go to the hospital as they have been hit bystones in their eyes.However on 19.05.2000 at around 2.00 o’clock in the afternoon, whilethe ad measuring of ‘Bandh’ in the fields situated at Group No. 234 and 236 inShirsule was going on 1) Balaji Bhika Ghogare, 2) Gangaram Bhikaji Ghogare,3)Rohidas Gangaram Ghogare, all are resident of Shirsule abused me and mynephews, 1) Goraksha and 2) Eknath by hitting us three on the head andforehead with a stone and with kicks and punches and threatened us. Hence, thiscomplaint against them. My complaint is read over to me and it is true. Before me complaint bySd/- Thumb Impression Police Station, Parner. Bhagabai Vishnu GhogareI got the information to file a complaint from the Magistrate.Before me complaint bySd/- Thumb Impression Police Station, Parner. Bhagabai Vishnu Ghogare -8- Cri.Appeal.669.2005I.CR. No. I 17/2000IPC sections 323,504 and 506Registration Time and Date 20.05.2000 at 10.40 hrs. Sd/-Police Station, Parner.” [Translated by Senior Translator, High Court of Bombay Bench at Aurangabad]7.Here, sum and substance of the prosecution case isthat, on 19.05.2000, while measurement of field of complainant inGut no.236 was in progress, accused Nos.1 to 3 came and starteddestroying stone marks and pelted stones on informant and hernephew Gorakh and Eknath, causing all of them severe injuries.There is no dispute that, accused are adjoining neighbours.Complainant party and accused party have common bandh.8.PW2 Eknath has deposed that, while they were puttingstones as per directions of Surveyor, accused respondents camethere, uprooted the stones fixed by them. PW3 Vishnu requestedBabaji and Gangaram not to remove stones and further stated that,if accused are not agreeing with the measurement, then theyshould seek measurement, upon which accused Babaji, Gangaramand Rohidas started abusing him and PW3 Vishnu and when askednot to do so, this witness has stated that, accused Babaji took onestone and pelted on the left eyebrow of his brother Gorakh, whosustained bleeding injury. Thereafter, informant Bhamabai (PW4)and his brother’s wife Shobha came there and then Gangaram Registration No. 338/2000 IPC sections 323,504 and 506 date 19.04.2000 Time : 16.00 hrs. sd/- -9- Cri.Appeal.669.2005pelted stone on forehead of informant Bhamabai, causing bleedinginjury. Rohidas forcibly made him lie and gave him kick and fistblows.9.PW3 Vishnu also deposed that, accused Babaji peltedstone on the person of his nephew Gorakh and hit him on the lefteyebrow, causing bleeding injury. When his wife came, Gangarampelted stone on her forehead, causing bleeding injury. Rohidasforcibly made his nephew Eknath lie and gave fist and kick blows,as a result of which, he suffered injury on his head and back.10.Informant PW4 Bhamabai also attributed role toaccused no.1 of pelting stone on her nephew Gorakh, which hit himon the frontal bone near left eyebrow. Accused Gangaram peltedstone on her, causing injury on the forehead. Rohidas gave fist andkick blows to PW2 Eknath.11.All above three witnesses are subjected to cross-examination. Suggestion to PW2 Eknath in cross-examination that,they were fixing boundaries and accused persons were uprootingit, shows that, presence of accused has not been denied or disputed.Dispute over bandh is also brought on record in his cross-examination. He is questioned about nature of injuries and witness -10- Cri.Appeal.669.2005has answered that, he suffered simple injury on the head.Therefore, occurrence is virtually got confirmed. Likewise, onvisiting cross-examination of PW3 Vishnu, simplicitor suggestionsare given about falsely deposing about the occurrence andremaining cross is not on relevant aspect. Cross-examination of PW4 informant Bhamabai is onthe point of second wife of her husband Hausabai surrounding tothe spot. She had denied that, she cannot state as to who causedinjury to Gorakh. She stated that, at the time of lodging complaint,she has informed who has caused injury to Gorakh, Eknath andhimself, but she is unable to assign why specific role is notappearing in the complaint. In paragraph no.2 of her cross, thoughshe admitted that, two persons from T.I.L.R. office were present,she volunteered that, “after seeing the parties in a quarrelingmood, they left the spot of incident”, but she is further unable tostate at what time they left the spot. She stated that, she sufferedtwo injuries, one on the forehead and second on the nose andfurther answered that, she cannot state location of remaining twoinjured persons.12.PW5 Gorakh, who attributed role of pelting stone toaccused no.1 Babaji, categorically deposed that, the said stone hithim near eyebrow and he raised hue and cry, hearing which, PW4 -11- Cri.Appeal.669.2005Bhamabai came there and at that time, accused no.2 Gangarampelted stone on her aunt, causing her injury to the forehead andaccused no.3 gave fist and kick blows to Eknath. In cross-examination, he stated that, he fell down onthe ground and he sustained injury on the left eyebrow and becameunconscious. He answered that, he did not see the stone, withwhich, he was assaulted. He further denied that, he was completelyunconscious, but stated that, there was sudden darkness due tostone being hit on the eye. Remaining questions are on the point ofwhen his statement was recorded and distance at which PW4Bhamabai was at that time working.13.Therefore, above discussed testimonies of PW2 Eknath,PW3 Vishnu, PW4 Bhamabai and PW5 Gorakh, on carefulappreciation show that, these witnesses are consistent about allthree accused abusing them and when objected by PW3 Vishnu,accused Babaji hitting stone to Gorakh, which landed on lefteyebrow and caused him bleeding injury. When informant came,they all are consistent about Gangaram hitting stone on her i.e. onher forehead. They are all further consistent about Rohidas makingPW2 Eknath fall and giving him fist and kick blows. Thus, all areinjured witnesses except PW3 Vishnu and they are defining roles ofeach of the accused and where they suffered injuries. They all -12- Cri.Appeal.669.2005speak about approaching police and being referred to medicalexamination. Exh.28 is made on the basis of registration of crimeat 4:00 p.m. 14.PW6 Dr. Kashinath Andhale at Exh.34 deposed aboutthree injured being referred by police on 19.05.2000. He narratedfollowing injuries suffered by them :- “(i) PW4 Bhamabai informant :- “ (a) C.L.W. on forehead at middle 3 x 2 x 1 cm. (b) C.L.W. on left side forehead 3 x 2 x 1 cm. (c) abrasion on nose – 3 x 2 cm.”(ii) PW2 Eknath Ghogre :- “ (a) C.L.W. on vertex 3 x 2 x 1 cm. (b) Contusion on left 6 x 4 cm.(iii) PW5 Gorakh Ghogre :- “ (a) C.L.W. on left Supra obbital region 3 x 2 x 1 cm. (b) Complaints of loss of vision of left eye. Doctor has described injuries to be within 24 hours andpossible by hard and blunt object. As regards to Gorakh isconcerned, he deposed that, patient was referred to Civil Hospitalat Ahmednagar for further treatment and examination. Heidentified medical certificates at Exhs. 38, 39 and 40. Cross-examination of the doctor is that, Exh.53 is X-rayplate and not photograph. There is no inward number over it. He -13- Cri.Appeal.669.2005has not received report from Ophthalmic Surgeon, Civil Hospital.In cross itself it is brought that, Exh.53 bears name of injuredGorakh. Rest of the cross-examination is not on relevant.15.Therefore, from above discussed evidence of injuredeye witnesses i.e. PW2 Eknath, PW4 Bhamabai and PW5 Gorakhcoupled with evidence of PW6 Dr. Kashinath Andhale, prosecutionhas demonstrated that, above three injured had suffered injuries inthe occurrence which took place in afternoon of 19.05.2000. Afterreferral by P.H.C. Parner police station, PW6 Dr. KashinathAndhale examined injured and his evidence has not been rendereddoubtful. 16.Prosecution has also adduced evidence of PW7 Dr.Smita Mhaske and PW8 Dr. R. K. Shelke, who had occasion tofurther examine PW5 Gorakh, while they were working atAhmednagar Civil Hospital in the capacity of Medical Officer anddoctor in Ophthalmic Department. PW7 Dr. Smita Mhaske has narrated following injuriesnoticed by her after examination of PW5 Gorakh Ghogre :- “ C.L.W. said C.L.W. was sutured. Said injury was above left eyebrow.” In cross-examination PW7 Dr. Smita Mhaske deposed
Legal Reasoning
-14- Cri.Appeal.669.2005that, she obtained X-ray and admitted that, she did not issuecertificate. She issued Exh.46 noting history of assault beingreferred by P.H.C. Parner and has come across sutured injuriesadmeasuring 3 x x CMS. She identified said document at½½Exh.47 certificate. She also noted complaint of “Piminilar of visionof left eye”. 17.PW8 Dr. R. K. Shelke, another Medical Officer attachedto Ahmednagar Civil Hospital in Eye O.P.D., deposed at Exh.48about PW5 Gorakh approaching for Disability Certificate. Heidentified case paper at Exh.49 and claims to have examinedpatient and noticed that left eye was suffering from optic atrophywith no perception of light. He identified Disability CertificateExh.50. In cross-examination, he admitted that, he cannotopined since when patient was suffering from loss of vision.18.Therefore, above discussion shows that, PW6 Dr. SmitaMhaske initially on being referred by police, examined PW2Eknath, PW4 Bhamabai and PW5 Gorakh on 19.05.2000 itself andissued medical certificates. PW7 Dr. Smita Mhaske, who wasofficiating Civil Hospital Ahmednagar, also examined PW5 Gorakhon referral by P.H.C. Parner i.e. by PW9. Likewise, PW8 Dr. R. K.Shelke issued Disability Certificate. -15- Cri.Appeal.669.200519.Learned counsel for respondents submitted that, thereis no independent witness. All witnesses examined are relatedwitnesses. That, informant has not specified, who hit where andwho suffered injury where. His thrust is that, ocular account is notfinding support from medical account. Number of injuries narratedby witnesses do not tally with medical evidence and defencewitness falsified version of prosecution.20.It is noticed that, occurrence has taken place in thefield owned by complainant party and accused party. They areadmittedly immediate neighbours of each other and they aresharing common bandh. Therefore, there was no possibility ofother neighbour to be present there. Hence, there cannot be anindependent witness account. Here, there is not only direct evidence, but also injuredwitness account. It is settled position of law that testimonies ofinjured witnesses always stand at higher pedestal and should notbe discarded or disbelieved without sufficient reasons. Here, asdiscussed above, version of injured witnesses is convincing. Thereis prompt lodgment of complaint and medical evidence is alsoforthcoming. -16- Cri.Appeal.669.2005 Argument is raised by learned counsel for respondentthat, there is variance in the medical evidence and ocular evidence.However, here, this court did not notice any major variancesexcept number of injuries stated by informant. She is a rustic lady,and therefore, might have exaggerated by stating that she sufferedthree injuries. Merely on such count, the injuries actually sufferedby her and her entire testimony cannot be rendered doubtful. Even law is fairly settled that, when there is variance inthe ocular account and medical account, ocular account wouldprevail unless medical evidence is shown to be inconsistent. In therecent case of State of Uttarakhand v. Darshan Singh, (2020) 12SCC 605, while deciding Criminal Appeal No.1856 of 2013, theHon’ble Apex Court has expounded elaborately the case law on thesubject of conflict between medical evidence and ocular evidencei.e. in the case of Abdul Sayeed v. State of Madhya Pradesh, (2010)10 SCC 259, by taking into account the precedent in the case ofRam Narain Singh v. State of Punjab, AIR 1975 SC 1727; State ofHaryana v. Bhagirath; [(1999) 5 SCC 96]; Solanki ChimanbhaiUkabhai v. State of Gujarat, AIR 1983 SC 484; Mani Ram v. Stateof U.P. [(1994 Supp.(2) SCC 289]; State of U.P. v. Hari Chand,(2010) 1 SCC (Cri.) 1112; -17- Cri.Appeal.669.2005 The ratio culled from above is that, where eye witnessaccount is credible and trustworthy, medical evidence which ismerely corroborative evidence, ocular account would prevail. Inthe above referred case State of Hari Chand (Supra), the Hon’bleApex court has categorically observed in paragraph no. 13 that,“in any event unless the oral evidence is totally irreconcilable withthe medical evidence, it has primacy.” Similarly, in the case ofAbdul Sayeed (Supra), in paragraph no.39, it is observed that, 39. Thus, the position of law in cases where there is acontradiction between medical evidence and ocularevidence can be crystallised to the effect that though theocular testimony of a witness has greater evidentiaryvalue vis-à-vis medical evidence, when medical evidencemakes the ocular testimony improbable, that becomes arelevant factor in the process of the evaluation ofevidence. However, where the medical evidence goes sofar that it completely rules out all possibility of the ocularevidence being true, the ocular evidence may bedisbelieved.” Here, applying the principle of ocular evidence as thebest evidence unless there is reason to doubt it, in the consideredopinion of this court, on careful re-appreciation, witnesses arefound to be consistent about role of each of the accused. Here,medical evidence also completely supports ocular account.Resultantly, the above arguments put-forth by learned counsel forrespondents has no substance and force. -18- Cri.Appeal.669.2005 Here, it needs to be noted that, as stated above,witnesses are rustic villagers and agriculturist. Informant is a ladyand also an injured witness. They have immediately approachedpolice after the occurrence. It is fairly settled that, FIR is not anencyclopedia. Therefore, meticulous details of occurrence are notexpected to be reproduced in its entirety, more particularly, whenthe informant herself is an injured party. However, she claims that,she did report who did what. Mere specific details of the occurrencenot finding place in report at Exh.28 is itself not sufficient to doubther substantive evidence. Report is lodged promptly and priority isgiven to refer them for medical examination. Therefore, merefailure of the lady to define roles and who suffered injury where atthe time of FIR, cannot be given undue weightage.21.As regards to testimony of DW1 Prakash is concerned,this witness has deposed that, he carried out measurement andhimself fixed boundaries. Kisan Tukaram Ghogare has givenstatement before him that, four boundaries shown to him are notadmitted to him. Therefore, he prepared panchanama. Panchasrefused to sign, and therefore, he came back at Parner. In cross-examination, he admitted that, asmeasurement was not consented by Kisan and Vishnu, panchasrefused to sign. He drew panchanama at Exh.67. He answered -19- Cri.Appeal.669.2005that, in his presence, there was no incident of beating to anybody.That, if at all there is quarrel, then he has to report to SeniorOfficer. Relying on above testimony, learned counsel forrespondents would strenuously submit that, this independentwitness has denied any occurrence. His presence is admitted byprosecution witnesses. Deliberately he has not been examined byprosecution, and therefore, defence examined him as its ownwitness.22.No doubt, DW1 Prakash was called upon to carryoutmeasurement and he visited Gut no.236. In his examination-in-chief, he stated that, he paid visit to Gut no.236 on 19.05.2000.His testimony shows that, as boundaries were not admitted byKisan, he drew panchanama and as panchas refused to sign, hecame back to Parner. It is pertinent to note that, informant PW4 Bhamabai inher cross-examination, in paragraph no.2, has stated that, twopersons from T.I.L.R. were present there, but she furthercategorically volunteered that, after seeing the parties inquarreling mood, they left the spot. Here, after quarrel there wasabuse. Hence, witness speaks of overt acts by accused Babaji,Gangaram and Rohidas thereafter. -20- Cri.Appeal.669.2005 Resultantly, it is apparent from above that the mainoccurrence of pelting stone has taken place after DW1 Prakash leftthe spot. 23.To sum up, here, there is consistent injured eye witnessaccount. Medical evidence supports ocular account. Mere failure ofinjured rustic villagers to depose about single incident of peltingstone and suffering plural injuries, itself is not sufficient to entirelydiscard their testimonies. Medical witnesses have examined theinjured shortly after the occurrence and have issued medicalcertificates. As stated above, roles of accused are consistentlycoming from injured eye witness account. Not only one medicalexpert, but two more medical experts i.e. PW7 Dr. Smita Mhaskeand PW8 Dr. R. K. Shelke are corroborating and lending support toprosecution version regarding injuries suffered by Gorakh. He hassuffered partial disability. Consequently, in the considered opinion of this court,on re-appreciation of entire evidence, prosecution did succeed inestablishing the charge of section 323 of IPC only. Necessaryingredients to attract sections 324, 325, 504 and 506 of IPC arenot shown to be available. -21- Cri.Appeal.669.200524.This court is mindful of the settled legal position andprinciples to be borne in mind while dealing with an appeal againstacquittal. But, this appellate court also being empowered toindependently re-appreciate the evidence in its entirety and whenit is noticed that findings reached at by learned trial court whilerecording acquittal are patently perverse and against the evidenceon record, interference becomes necessary. Law to this extent isfairly settled in case of Sambhaji Hindurao Deshmukh v. State ofMaharashtra, (2008) 11 SCC 186, the Hon’ble Apex Court heldthat,“13.…..The High Court will interfere in appeals againstacquittals, only where the trial court makes wrongassumptions of material facts or fails to appreciate theevidence properly…..” Hence, here on careful re-appreciation, this courthaving noticed that ocular account is sufficiently corroborated bymedical evidence, prosecution story was required to be accepted tothe extent of commission of offence under section 323 of IPC.25.Perused the judgment under challenge. In theconsidered opinion of this court, there is apparently mis-appreciation of the crucial evidence including that of injured eyewitnesses and wrong conclusion has been drawn, holding that,prosecution evidence did not pass test of credibility and that -22- Cri.Appeal.669.2005prosecution failed to adduce clear, cogent and satisfactoryevidence or prove the case beyond reasonable doubt. For above reasons, there being improper appreciationof available evidence, it is a perverse judgment. It is also not a casewhere two views are possible so as to extend benefit of doubt to theaccused. Hence, such findings and judgment cannot be allowed tobe sustained. Therefore, interference is called for. Hence, I proceedto pass the following order :-ORDERI)Criminal Appeal is partly allowed.II)The impugned judgment and order dated 15.06.2005passed by the learned Judicial Magistrate First Class,Parner in R.T.C. No. 81 of 2000 is hereby quashed andset aside.III)The respondents/original accused Nos.(i) Babaji BhikaGhogare, (ii) Gangaram Bhika Ghogare and (iii) RohidasGangaram Ghogare are hereby held guilty for the offencepunishable under section 323 r/w 34 of IPC and arehereby sentenced to suffer rigorous imprisonment forone year each and to pay fine of Rs.1,000/- (Rupees OneThousand Only) each i/d to suffer further rigorousimprisonment for three months by each of them. -23- Cri.Appeal.669.2005IV)The respondents/original accused shall surrender theirbail bonds and they should surrender within a period ofthree weeks from today.V)The respondents/original accused shall be entitled torelief of set off, if any, as prescribed under the provisionsof Section 428 of the Code of Criminal Procedure.VI)The trial court shall ensure execution of sentence.VII) It is clarified that there is no change as regards the orderregarding disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale