High Court
Legal Reasoning
-1- CRI APPEAL 506 OF 2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 506 OF 20231.Milind s/o Ashruba Dhanve,Age : 39 years, Occu. : Service.2.Pravin @ Pappu s/o Ashruba Dhanve,Age : 34 years, Occu. : Agri.3.Ashruba s/o Hasu Dhanve,Age : 73 years, Occu. : Agri.Appellant Nos. 1 to 3 R/o GomalwadaTq. Shirur Kasar, Dist. Beed.4.Nitin s/o Ashruba Dhanve,Age : 46 years, Occu. : Service.R/o. Ambika Nagar, Dist. Beed... Appellants (Original Accused Nos. 1 to 4)VersusState of Maharashtra Through Police Station Officer,Shirur Kasar, Tq. Shirur Kasar, Dist. Beed.. RespondentWITHCRIMINAL APPEAL NO. 714 OF 2023X. Y. Z... Appellant Versus1.The State of Maharashtra 2.Milind s/o Ashruba Dhanve,Age : 39 years, Occu. : 3.Pravin @ Pappu s/o Ashruba Dhanve,Age : 34 years, Occu. :
Legal Reasoning
-2- CRI APPEAL 506 OF 20234.Ashruba s/o Hasu Dhanve,Age : 73 years, Occu. : 5.Nitin s/o Ashruba Dhanve,Age : 46 years, Occu. : 6.Dayabai Ashruba Dhanve,Age : 65 years, Occu. :All R/o. Gomalwada,Taluka Shirur Kasar, Dist. Beed... RespondentsMr. Uttam L. Telgaonkar, Advocate for the Appellants.Mr. S. M. Ganachari, APP for Respondent/State.Mr. Shriniwas A. Kulkarni, Advocate for Appellant in Criminal Appeal No. 714/2023. CORAM : ABHAY S. WAGHWASE, J.Date on which reserved for judgment :09th February, 2024.Date on which judgment pronounced :26th February, 2024.JUDGMENT : 1.Appellants-convicts hereby take exception to the judgment andorder dated 09.05.2023 passed by learned Special Judge (POCSO), Beedin Special POCSO Case No. 2/2020 recording guilt for offence underSections 323 and 324 r/w Section 34 of the Indian Penal Code (for short“I.P.C.”). Likewise, the original complainant has also questioned the saidjudgment to the extent of acquittal of accused Nos. 2 to 6 from offenceunder Sections 354-A, 143, 147, 148, 504, 506 r/w Section 149 of theI.P.C. and under Sections 8 and 12 of the Protection of Children fromSexual Offences (POCSO) Act. -3- CRI APPEAL 506 OF 20232.In brief, prosecution was launched against present appellants byShirur Kasar Police Station, alleging that informant victim aged 17 yearswas standing outside her house on 02.11.2019 at around 8.30 a.m.According to her, accused Milind, Pravin and Ashruba came there.Accused Milind with bad intentions caught hold of her hand, pulled herand said that her father is not performing her marriage with him andsuggested maintaining relations with him and offered to marry her. Sheraised shout. Upon which her grandmother and sister came. AccusedPravin beat her sister whereas, accused Ashruba pushed grandmotherand abused her. After this it is alleged that, informant and her sisterwent towards garage of her father to inform about the occurrence. Shealleged that, around 09.30 a.m. accused reached there and abused herfather. Accused Pravin assaulted her father on head with iron tambiwhereas accused Milind hit rod on his legs and accused Ashruba gaveblows with stick whereas, accused Nitin gave kicks and fist blows.Because of said assault her father suffered bleeding injury and theyapproached police and lodged report which was registered.3.PW-7 who took over investigation, arrested accused and onconclusion of investigation charge-sheeted accused and where resultantlytried by learned Special Judge who on appreciation of evidence heldaccused only guilty for offences punishable under Sections 323, 324 r/w34 of the I.P.C. and acquitted accused from charges under Sections 354- -4- CRI APPEAL 506 OF 2023A, 143, 147, 148, 504, 506 r/w Section 149 of the I.P.C. and Sections 8and 12 of the Protection of Children from Sexual Offences (POCSO) Act..It is the above judgment which is now taken an exception byfiling instant appeal.4.Provisions under Section 374 (2) of the Code of CriminalProcedure being invoked, this Court undertakes reexamination, re-appreciation and reanalysis of the oral and documentary evidenceadduced by prosecution in trial. 5.On going through the record it transpires that, case of prosecutionis rested on testimonies of seven eye witnesses and documentaryevidence like FIR, panchanama, injury certificate etc. is also takenrecourse too.6. For proper comprehension, it is desirable to give the status as wellas sum and substance of the testimonies of the prosecution witnesseswhich is as under.7.PW-1 - She gave her date of birth as 16.11.2002, her age as 17years and that she was studying K.S.K. College, Beed. Regarding theoccurrence dated 2.11.2019 she deposed that around 8.30 a.m. while shewas standing in front of her house, accused Milind, Pravin and Ashrubacame. Accused Milind caught hold her hand, pulled her saying that her -5- CRI APPEAL 506 OF 2023father is not performing her marriage and further proposed to maintainrelations with him and that he would marry her. On shouts being raisedby her, her grandmother and sister came, but accused Pravin andAshruba beat, pulled and pushed them respectively and when they wentto report the occurrence to her father around 9.30 a.m., above threeaccused along with one Nitin came there and assaulted her father withiron tambi, iron rod, wooden stick and fist blows respectively. Shedeposed about approaching police and lodging FIR.8.PW-2 her sister in para 2 deposed about hear and shouts of hersister and therefore, she and her grandmother rushed out and sawaccused Milind had caught hold of her sister’s hand asking to keeprelations. She also deposed about she intervening and being beaten byaccused Pravin by fist blows and her grandmother being pulled andpushed by accused Ashruba. She also deposed about accused reachinggarage of the father and assaulting him.9.PW-3 injured father of PW-1 and PW-2 testified that around 9.00to 9.30 a.m on 02.11.2019 while he was at the garage his daughterinformed about forceful act of accused Milind holding hand. According tohim, while his daughter was narrating about the occurrence, accusedcame there in a Tata Sumo. Accused Pravin hit him with iron tambi onhead, about accused Milind hitting him with iron rod, accused Ashruba -6- CRI APPEAL 506 OF 2023hitting him with wooden rod and accused Nitin gave him kicks and fistblows, that they approached Police who referred him to Hospital. Heidentified accused as well as article iron tambi, iron rod and stick. 10.PW-4 Panch -2 memorandum of disclosure and seizure of irontambi, iron rod, wooden rod wide Exh. 51 deposed about disclosurebeing given and accused taking them and seizure being effected. 11.PW-5 another eye witness stated that, daughter of PW-3 camefollowed by arrival of 4-5 persons in Tata Sumo and they assaultingAmbadas i.e .PW-3 who suffered injuries.12.PW-6 - Doctor who examined PW-3 and issued injury certificateExh. 61.13.PW-7 - I.O. who narrated all steps taken by him till filing of charge-sheet.SUBMISSIONS14.Criticizing the judgment under challenge learned counsel wouldsubmit that alleged occurrence has taken place in two parts. He pointedout that regarding first episode, PW-1 and PW-2 can be said to bewitnesses whereas, for second occurrence testimony of PW-3 and 5 arerecourse to and relied by prosecution. He next submitted that, witnessesare firstly not consistent regarding the occurrences. According to him, -7- CRI APPEAL 506 OF 2023while appreciating the evidence learned Trial Judge has acquittedaccused persons from alleged first episode, but again reliance is placed onsame testimonies for recording guilt. He emphasized that, in fact, thereis no charge about assault to PW-3, nor there is charge under Section 34of the I.P.C. and thus, he submits that when there was no charge forSections 324 or 323, conviction ought not to have been recorded as hasbeen done by learned Trial Judge. Alleging false implication he pointedout that, in fact, there is history of land dispute and defence crossexamination is on such lies. Due to previous grudge it is apparently afalse equitation.15.Attacking the prosecution case learned counsel would submit thatby invoking Section 27 of Indian Evidence Act prosecution has attributedrecovery. He would submit that, in the memorandum exact place ofhiding articles has not been stated and therefore, it is his submission thatsuch evidence ought not to have been relied and acted upon by learnedTrial Judge.16.He further submits that only interested witnesses are examined andno independent witnesses are examined even when alleged incident hastaken place in busy locality. Lastly, he sought reliance on followingcases and submitted that, there is improper appreciation of evidence bylearned Trial Judge and even as settlement has not taken into account. It
Decision
-8- CRI APPEAL 506 OF 2023is submitted that, the impugned judgment is liable to be set aside. (i)Ramesan and Ors. Vs. State of Kerala reported in 2007 CRI. L. J. 1637.(ii)Bhupesh Deb Gupta (Dead) by L.Rs. Vs. State of Tripura reported in (1979) 1 SCC 87.(iii)Mahbub Shah Vs. Emperor reported in LAWS (BOM)-1945-1-11. (iv)Harjit Singh and others Vs. State of Punjab reported in (2002) 6 SCC 739.(v)Boby Vs. State of Kerala reported in 2023 SCC OnLine SC 50.17.Learned APP, while opposing the above submissions pointed outthat testimony of informant victim, her sister and grandmother isconsistent and they are all corroborating each other about arrival ofaccused, holding hand of informant with evil intention, victim raisingalarm and PW-2 and her grandmother rushing to the spot. He pointedout that, they all are further consistent about being manhandled andthey went to inform their father. It is submitted that, accused personscame there getting with iron tambi, iron rod and stick. They have put theassault on the PW-3. Roles of each of them is distinctly spelt out byinjured as well as eye witnesses PW-1 and PW-2. There is medicalevidence which support ocular account. There is recovery under Section27. Learned APP submits that, there be overwhelming and interveningevidence. Guilt recorded is perfectly legal and so he presses to dismissal -9- CRI APPEAL 506 OF 2023of the appeal for want of merits. ANALYSIS18.On carefully shifting evidence of PW-1 informant, she has deposedabout she was standing out her own house in the early hours of themorning. She testified about arrival of accused Milind, Pravin andAshruba. She has alleged role of catching her hand by the accusedMilind and has narrated the utterances made by him regardingsuggesting victim to maintain relation with him and he would marry herspecifically stating that her father is not marrying her to him. Saidutterance is after catching her hand. Shouts raised by her. Her sister andgrandmother has came out. Her elder sister PW-2 has also narrated aslike her as stated by PW-1. She and her grandmother were alsomanhandled and she has deposed to that extent. 19.Regarding the first occurrence which took place in front of thehouse, both sisters are categorically lending support each other. On goingthrough the cross faced by them, it is pertinent to note that in paragraphNos. 6, 7, 8 and 9, question are posed about locality, surroundings andgeographical locations of the surroundings and relations. It is abundantlyclear that, first episode which took place in front of the house is not at allchallenged in any manner. 20.Second episode seems to have taken place at the garage of PW-3 -10- CRI APPEAL 506 OF 2023and on visiting on testimony of PW-3 father it is emerging that he hasnarrated that his mother as well as both daughters came to the garagearound 9.00 to 9.30 a.m. and when his daughter informant was narratingabout occurrence of 8.30 a.m. in which accused Milind had forcibly heldher hand, accused persons came there and he has narrated the role ofaccused Pravin for hitting him with iron tambi, accused Milind hittinghim with iron rod on legs and Ashruba giving blows with wooden stickand accused Nitin shower him with fist blows. He further stated thatthey all went to police station and it is the police who referred them tohospital and his daughter lodged complaint.21.Questions are posed about accused Ashruba to be close relative, heresiding in Mahatma Phule Vasti, about relations between complainantfamily and accused family to be relatives and relations between them tobe strained since two days. Questions are posed about legal notice beingsent to his own for cohabitation and some conversation taking place on30.10.2019 and 31.10.2019. Cross in the form of question answer formin paragraph No. 7 also shows that incident of arrival of accused near thegarage is not disputed. Similarly, his cross in paragraph No. 9 furtherclearly shows that there is no challenge to the second episode of beatingto him. 22.Above witness is a injured witnesses. His substantive evidence -11- CRI APPEAL 506 OF 2023discussed about regarding assault to him has remained unshaken. Byexamining PW-6 - a medical officer, injuries suffered by PW-3 on02.11.2019 are established. Injury certificate is also confirming theexamination and injuries. Therefore, the prosecution has apparentlyestablished both the occurrences around 8.30 a.m. as well as between9.00 and 9.30 a.m. i.e. incident of holding hand of informant,manhandling of PW-2 and grandmother and after an hour also accusedcoming to the spot in a vehicle armed with articles like iron tambi, ironrod and stick and beating PW-3 and also causing him injuries with same.23.Panch in whose presence accused give memorandum of disclosureis also examined as PW-4, who is an independent witness and hasdeposed about accused Milind giving memorandum, expressing hiswillingness to hand over iron tambi, iron rod and wooden rod and takingpanch and police towards the house of accused and from the dicky of theTata Sumo vehicle said articles are being taken out and seized.Panchanama is also proved through this witness.24.It is tried to be submitted by the learned advocate for theappellants that exact place has not been stated in the memorandum andtherefore, recovery evidence cannot be relied. There is no substance insuch submission. Law does not require stating the exact place, but whatis relevant is information leading to discovery. Here there is evidence -12- CRI APPEAL 506 OF 2023about accused coming in Tata Sumo vehicle and amounting assault withabove articles on PW-3. Recovery is from same vehicle of whichdescription is given by injured himself as well as informant daughter.Consequently there is no reason to doubt recovery evidence. SUMMATION25.Here PW-1, PW-2 are consistent about occurrence at 8.30 a.m.during which informant, her sister and grandmother were allmanhandled by accused Pravin, Milind and Ashruba. Nothing has beensolicited in their cross to question the truthfulness of their testimonies.Second occurrence of assault is coming from the mouth of very injuredalso a victim of assault. He has categorically defined role played by eachof them and who was armed with what, and who were hit him. Medicalwitness confirms assault. Therefore, ingredients for attracting offenceunder Sections 324, 323 of the I.P.C. are very much available in theevidence of prosecution.26.Learned counsel for the appellants would strenuously submits that,there was no charge under Sections 323, 324 r/w Section 34 of the I.P.C.and he specifically invited the attention of this Court to the chargeframed by learned Trial Judge at Exh. 28. Therefore, it is his submissionthat above conviction is bad in law. -13- CRI APPEAL 506 OF 202327. There is no merit in above submission. True it is that in Exh. 28charges which are framed and explained are for commission of offenceunder Sections 143, 147, 148 and 354-A of the I.P.C., but there is specificcharge for offence under Sections 324, 323, 504, 506 r/w Section 149 ofthe I.P.C. Further here there is specific charge under Section 149 of theI.P.C. which is a substantive offence. Going by the charge-sheet it isemerging that, five persons were tried by learned Trial Judge i.e. accusedMilind, Pravin, Ashruba, Nitin and Dayabai. Thus, there are five personswho are charge-sheeted however, only accused Nos. 1 to 4 are convicted.28.When evidence on careful scrutiny makes out a case onlyagainst four accused, deriving strength from the judgment of the Hon’bleApex Court in the case of Rohtas and another Vs. State of Haryanareported in (2021) 19 SCC 465, alteration of charge from Section 149 toSection 34 of the I.P.C. being held to be permissible, here there is nohurdle to uphold the conviction by applying Section 34 of the I.P.C. whenaccused are shown to be carrying common intention. Paragraph No. 17of the said judgment is as under : “17.This does not, however, imply that Courts can not alter thecharge and seek the aid of Section 34 IPC (if there is commonintention), or that they cannot assess whether an accusedindependently satisfies the ingredients of a particular offence.Sections 211 to 224 of CrPC which deal with framing of charges incriminal trials, give significant flexibility to Courts to alter andrectify the charges. The only controlling objective while decidingon alteration is whether the new charge would cause prejudice to -14- CRI APPEAL 506 OF 2023the accused, say if he were to be taken by surprise or if thebelated change would affect his defence strategy. The emphasis ofChapter XVII of the CrPC is thus to give a full and properopportunity to the defence but at the same time to ensure thatjustice is not defeated by mere technicalities. Similarly, Section 386of CrPC bestows even upon the appellate Court such wide powersto make amendments to the charges which may have beenerroneously framed earlier. Furthermore, improper, or non framingof charge by itself is not a ground for acquittal under Section 464of the CrPC. It must necessarily be shown that failure of justice hasbeen caused, in which case a retrial may be ordered.” 29.Evidence discussed above clearly shows that in both the episodes,initially accused Pravin, Milind and Ashruba went to the house ofinformant and after above stated occurrence there they came armed withiron tambi, iron rod, stick by occupying vehicle. Such material clearlyindicates that each of them were sharing common intention andtherefore, there is no illegality in convicting them for offence underSections 323, 324 r/w Section 34 of the I.P.C. as is done by learned TrialCourt.30.Victim also preferred an appeal bearing No. 714/2023 questioningthe acquittal of respondent Nos. 2 to 6 from charges under Sections 354-A, 143,147, 148, 323, 324, 504, 506 r/w Section 149 of the I.P.C. andSections 8 and 12 of the POCSO Act. 31.Learned counsel pointed out that, there is improper appreciation.There is clinching evidence against respondents for commission of -15- CRI APPEAL 506 OF 2023offence under Section 354-A, provisions under Sections 8 and 12 of thePOCSO Act. Victim herself has deposed thereby defining role of all theaccused. Above offences were proved by invoking Section 149 of theI.P.C. and thereby even guilt of accused from above offences is proved,but the learned Trial Court unfortunately acquitted them and therefore,so much part of the acquittal is required to be set aside and respondentsmay be acquitted from Sections 354-A, 143, 147, 148, 323, 324, 504, 506r/w Section 149 of the I.P.C. and Sections 8 and 12 of the POCSO Act. 32.Perused the charge and Exh. 28-C wherein, five people areexplained charge under Sections 143, 147, 148, 323 r/w 149, 324 r/w149, 504 r/w 149, 506 r/w 149 whereas, accused Milind is charged forcommission of offence under Section 354-A whereas, it seems that allaccused are charged for commission of offence under Sections 8 and 12of the POCSO Act. 33.Victim has given her date of birth as 16.11.2002 and she deposedthat at the time of incidence she was 17 years of age, however, one doesnot find her age being proved by prosecution by placing on record birthcertificate. Father PW-3 while in witness box has not given date of birthof PW-1 daughter, but merely spoke about she is taking education inK.S.K. college. Though investigating officer deposed about collecting ageproof of victim from Zilla Parishad school, the same is not placed on -16- CRI APPEAL 506 OF 2023record. Therefore, here there is no conclusive proof about victim to bebelow 18 years of age on the date of incidence, the provision underSection 8 as well as under Section 12 cannot be attracted. InvestigatingOfficer though has stated in paragraph No. 5 about collecting age prooffrom Zilla Parishad school, while under cross in paragraph No. 9 headmitted that he has not collected information from the school regardingdocument of age proof tendered by parents in school. 34.Resultantly, there is no conclusive proof to hold that victim isbelow 18 years of age. Hence, provisions under Sections 4 and 8 cannotbe applied. Their roles are not defined and there is little or no evidenceabout there direct involvement. Even otherwise, there is mere testimonyof PW-1 about accused No. 1 Milind catching hold of hand of victim.Therefore, there is no merit in the appeal filed by complainant for settingaside the judgment and order dated 09.05.2023 of acquittal of accusedpassed by the learned Special Judge (POCSO), Beed in Special POCSOCase No. 2/2020 for offence under Sections 354-A, 143, 147, 148, 504,506 r/w Section 149 of the I.P.C. and under Sections 8 and 12 of thePOCSO Act. 35.Consequently, in the light of the above discussion, no faultwhatsoever can be found in the appreciation at the hands of learned TrialJudge. Evidence as well as law has been rightly applied. Hence, no casebeing made out in appeals. I proceed to pass following order. -17- CRI APPEAL 506 OF 2023ORDER(i)Both the criminal appeals stand dismissed.(ii)The impugned judgment and order dated 09.05.2023 passed by learned Special Judge (POCSO), Beed in Special POCSO CaseNo. 2/2020 is maintained as it is.(ABHAY S. WAGHWASE, J.) P.S.B.