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CriAppeal-744-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 744 OF 2004The State of Maharashtrathrough Police Station Wadhona,Taluka Udgir.… Appellantversus1.Bhagwan s/o Bhujangrao GaikwadAge 32 years, R/o Jalkot,District Latur.2.Shivram s/o Mariba Waghmare,Age 55 years3.Madhav s/o Shivram Waghmare, Age 35 years4.Yadav s/o Shivram Waghmare,Age 30 years5.Balu @ Ankush s/o Shivram Waghmare Age 20 years6.Sahebrao s/o Shivram WaghmareAge 25 years7.Baliram s/o Manikrao SonkambleAge 45 yearsAll r/o Digras, Taluka Kandhar,District Nanded.… Respondents [Accused]…..Mr. S. M. Ganachari, APP for the Appellant-State.Mr. Nandagavale h/f Mr. V. G. Sakolkar, Advocate for theRespondents...... CriAppeal-744-2004-2- CORAM :ABHAY S. WAGHWASE, J. Reserved on: 25.04.2024Pronounced on: 06.05.2024JUDGMENT : 1.Aggrieved by the acquittal of respondents by learned J.M.F.C.,Udgir in R.C.C. No. 53 of 1999 vide judgment and order dated28.07.2004, State has preferred appeal by invoking Section 378 of ofthe Criminal Procedure Code [Cr.P.C.].FACTS LEADING TO TRIAL ARE AS UNDER2.Informant and accused no.1 are real brothers are neighbours.There were disputes between them on account of area in possessionand their used to be quarrels between them on such count. On28.11.1998, informant Shravan was abused by accused persons inabove background. When he requested them not to abuse him, it isalleged that, all accused attacked him. When wife and sons ofinformant came to his rescue, they too were beaten by means of stick,kicks and fist blows. Accused also set vehicle owned by informant tofire. Same night, complaint was lodged with police, on the strength ofwhich, crime was registered bearing Crime No. 91 of 1998 for CriAppeal-744-2004-3- offences punishable under Sections 147, 148, 149, 324, 325, 504, 506and 435 of Indian Penal Code [IPC]. On completion of investigation, they were chargesheeted andtried before learned J.M.F.C., Udgir vide R.C.C. No. 53 of 1999. Onappreciation and analyzing the evidence, learned trial Judge reachedto a finding that prosecution failed to establish its case beyondreasonable doubt and extending benefit of the same, by judgment andorder dated 28.07.2004, all accused persons came to be acquitted.Said judgment is now taken exception to, by the State.SUBMISSIONSOn behalf of the appellant State :3.Learned APP pointed out that there was dispute betweenaccused and informant, who are in close relation and immediateneighbours. There used to be regular quarrels between both parties.That, on 28.11.1998, informant was abused and on being questioned,he was attacked and beaten by accused. He pointed out that wheninformant’s sons and wife came to his rescue, they were also beaten.Therefore, all were beaten. Learned APP pointed out that all accused CriAppeal-744-2004-4- are named. Who was holding what is also stated by the informant, hiswife as well as sons. They are all consistent in their evidence. Theirevidence stood unshaken in cross. That, further, accused persons alsoset jeep of informant to fire and caused loss and damage. Complaintwas promptly lodged. Pancha to spot and medical expert, who treatedinjured, are examined. According to learned APP, there is improperappreciation. There is not only eye witness account, but also injuredwitness account. However, in spite of charges being proved, learnedtrial court disbelieved the prosecution version. Consequently, learnedAPP submitted that on re-appreciation, judgment under challenge isrequired to be set aside by allowing the appeal.On behalf of the respondents :4.In answer to the above, learned counsel for the accusedrespondents pointed out that admittedly there is previous enmity.Complaint is with ulterior motive for false implication. He pointed outthat there was no occurrence as alleged by informant and that there isno independent evidence about the incident. Moreover, onlyinterested witnesses are examined and even their evidence is full ofmaterial omissions, contradictions and improvements. He furtherpointed out that though there is medical evidence, there is CriAppeal-744-2004-5- overwriting over the same and as such, there is room to presume thatit is manufactured document. According to him, there are general andomnibus allegations. Therefore, learned trial court rightly disbelievedthe prosecution version and acquitted accused. Resultantly, hesubmitted that, there is no merit in the appeal and hence he prays todismiss the same.IN BRIEF, EVIDENCE ADDUCED BY PROSECUTION IN TRIAL COURT5.Prosecution seems to have adduced evidence of followingwitnesses in support of their case:PW1 Shravan, who is examined at Exhibit 78, deposed aboutoccurrence dated 28.11.1998 that, around 9.30 p.m., hebeing abused initially in the backdrop of previous dispute.According to him, when he requested not to abuse, he wasassaulted by Yadav, Shivram, Madhav by means of iron bar,resulting into grievous injury to his head. According to him,accused Sahebrao and Balu assaulted him by means of stick,whereas accused Bhagwan and Baliram assaulted by meansof kicks, fist blows and stone. When his sons Sangram andRaju and wife Bharatbai came, they were also beaten bymeans of stone, iron rod and stick respectively. Thereafteraccused persons torched the jeep bearing no. MH-24-749causing loss of Rs.3,00,000/-, and hence complaint. CriAppeal-744-2004-6- PW2Bharatbai, wife of PW1, also stated in her evidence at Exhibit80 that on said night, she heard abuses and after noticingsome incident outside the house, she went and at that time,accused Shivram, Madhav, Yadav assaulted her husband bymeans of iron bar causing him injuries on head, back andright hand. Then they came towards her and she was beatenby Madhav on the right hand, whereas accused Baliram hither with stone. Accused Bhagwan, Balu and Sahebrao beather son Sangram with iron bar. Accused Yadav and Madhavassaulted her son Raju by means of stick. Accused Madhavalso assaulted her another son Satish with iron bar and allaccused put jeep to fire.PW3Sangram, son of informant also stated that there was abuseto his father. That, Shivram, Madhav, Yadav, Sahebrao, Baluand Baliram all abused his father and thereafter all sevenaccused assaulted is father. According to him, his father wasassaulted with iron bar by Shivram, Madhav and Yadav,whereas accused Balu, Sahebrao, Bhagwan and Baliram hithis father with stick. This witness was also assaulted bymeans of iron bar by accused Shivram and Yadav, whereashis mother was assaulted by means of stick by Sahebrao andBalu and accused set their vehicle on fire.PW4Raju, another son of informant, also reiterated about theassault by accused to his father by means of iron bar andstick. According to him, Shivram, Madhav, Yadav were armedwith iron bar, whereas accused Sahebrao and Balu usedsticks and accused Bhagwan and Baliram used kicks and fist CriAppeal-744-2004-7- blows as well as iron bar and sticks, causing grievous injuries.He was assaulted on back and legs and accused persons settheir vehicle to fire.PW5Kerba, is pancha to spot panchanama. He identified the sameat Exhibit 93.PW6Kashibai, sister-in-law of informant, stated that she waspresent in the house and that time she heard noise and cameout of the house and saw the incident.PW7Dr. Jadhav, who examined Shravan, Sangram as well asBhagirathibai and issued certificates Exhibits 104, 105 and106.PW8Namdeo, pancha to seizure of stick and iron bar at theinstance of accused present in the police station.PW9API Gaur, who registered complainant and carried outinvestigation.ANALYSIS6.Here, this court is dealing with an appeal against acquittal.Therefore before examining the evidence, it is desirable to reproducethe law on the aspect of power of the appellate court while dealingwith an appeal against an order of acquittal. CriAppeal-744-2004-8- 7.Recently, the Hon’ble Apex Court in the case of Mohan @Srinivas @ Seena @ Tailor Seena v. State of Karnataka 2021 SCCOnLine SC 1233 and N. Vijayakumar vs. State of Tamil Nadu [(2021)3 SCC 687] observed as under : “While dealing with appeal against acquittal, by invokingSection 378 of Cr.P.C., appellate court has to considerwhether trial court’s view can be termed as possible view,particularly when evidence on record has been analyzed.The reason is that, an order of acquittal adds to thepresumption of innocence in favour of accused. Thus,appellate court has to be relatively slow in reversing theorder of acquittal rendered by trial court. Therefore, thepresumption in favour of accused does not get weakenedbut only strengthens. Such double presumption that enuresin favour of the accused has to be disturbed only bythorough scrutiny on accepted legal parameters.8.Very recently, the Hon’ble Apex Court in the case of RaviSharma v State (Government of N.C.T. Delhi and another), 2022LiveLaw (SC) 615, has considered and discussed the law settled bythe Hon’ble Apex Court in the case of Chandrappa v. State ofKarnataka, (2007) 4 SCC 415, which are as under : CriAppeal-744-2004-9- “42. From the above decisions, in our considered view, thefollowing general principles regarding powers of theappellate court while dealing with an appeal against anorder of acquittal emerge:(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order ofacquittal is founded.(2) The Code of Criminal Procedure, 1973 puts nolimitation, restriction or condition on exercise of such powerand an appellate court on the evidence before it may reachits own conclusion, both on questions of fact and of law.(3) Various expressions, such as, “substantial andcompelling reasons”, “good and sufficient grounds”, “verystrong circumstances”, “distorted conclusions”, “glaringmistakes”, etc. are not intended to curtail extensive powersof an appellate court in an appeal against acquittal. Suchphraseologies are more in the nature of “flourishes oflanguage” to emphasise the reluctance of an appellate courtto interfere with acquittal than to curtail the power of thecourt to review the evidence and to come to its ownconclusion.(4) An appellate court, however, must bear in mind that incase of acquittal, there is double presumption in favour ofthe accused. Firstly, the presumption of innocence isavailable to him under the fundamental principle of criminal CriAppeal-744-2004-10- jurisprudence that every person shall be presumed to beinnocent unless he is proved guilty by a competent court oflaw. Secondly, the accused having secured his acquittal, thepresumption of his innocence is further reinforced,reaffirmed and strengthened by the trial court.(5) If two reasonable conclusions are possible on the basis ofthe evidence on record, the appellate court should notdisturb the finding of acquittal recorded by the trial court.”Likewise in the same judgment, the Hon’ble Apex Court hastouched and dealt with as to what is meant by perverse findings bytaking recourse to the earlier decisions in the cases of Arulvelu andanother v. State, (2009) 10 SCC 206; Babu v. State of Kerala (2010) 9SCC 189 and Anwar Ali and another v. State of Himachal Pradesh,(2020) 10 SCC 166. 9.Similarly, while dealing with the aspect as to what is meant by“possible view”, the Hon’ble Apex Court in N. Vijay Kumar (supra), byreferring to the Judgments in the cases viz. Murgesan v. State, (2012)10 SCC 383, Hakeem Khan v. State of M.P., (2017) 5 SCC 719,observed that “if the “possible view” of the trial Court is not agreeablefor the High Court, even then such “possible view” recorded by thetrial Court cannot be interdicted. It is further held that so long as the CriAppeal-744-2004-11- view of the trial Court can be reasonably formed, regardless ofwhether the High Court agrees with the same or not, verdict of thetrial Court cannot be interdicted and the High Court cannot besupplant over the view of the trial Court”.10.In the instant case, informant, his wife and two sons are theonly witnesses to the occurrence. Obviously, incident having takingplace in the courtyard of informant, there may not be independentwitnesses. All witnesses thus being interested witnesses, thereevidence is required to be meticulously and carefully appreciated. Onplacing testimonies of PW1 to PW4 in juxtaposition to each other andon comparing the same to ascertain whether they are lending supportto each other by giving consistent version, it is emerging as under: PW1 Shravan-informant claims that accused Bhagwan gave himkicks and fist blows and hit him with stone. His wife Bharatbaiattributed role to Bhagwan for using Iron bar, but in assaultingSangram. Whereas PW3 Sangram has attributed role to Bhagwan forbeating with stick to his father Shravan and giving fist and kick blowsto PW4 Raju. Thus PW3 Sangram does not himself speaks about hebeing beaten by Bhagwan by means of Iron bar, as is deposed by hismother. PW4 Raju attributes role of kicks, blows, iron bar and stick to CriAppeal-744-2004-12- Bhagwan, but when Bhagwan laid his hand on iron bar is not clarifiedby either informant or other witnesses. On carefully going through evidence of informant as regards tothe role of accused Shivram is concerned, he has attributed role ofusing iron bar in beating informant as well as PW4 Raju on his leftarm. However, PW4 Raju himself does not speak about he being hitby Shivram on his left arm. He only states that accused also assaultedover his back side and leg. Bhartbai attributes assault by iron bar toaccused Shivram for hitting her husband PW1 Shravan only, and notto her son Raju. In stead, she attributes role of assaulting her son Rajuto accused Yadav and Madhav, that too with stick and not iron bar.Whereas her another son PW3 Sangram deposed that accusedShivram hit iron bar to all four of them. As regards to role of accused Madhav is concerned, informantdeposed that he was assaulted by Madhav with iron bar and blow wasalso given to Bharatbai. Bharatbai corroborates assault by Madhav onher right wrist. However, she further attributes role to accusedMadhav for hitting her son PW4 Raju with stick and not iron bar. CriAppeal-744-2004-13- All four are found to be attributing assault to accused Yadav byusing Iron bar, but there are contradictions about who was assaultedby him. Further, informant and his wife are also speaking about heusing stick in assaulting PW4 Raju. Thus, he is also said to have put touse iron bar as well as stick.As regards role of accused Balu is concerned, there areallegations of use of stick being hit to informant and Raju. On thecontrary, Bharatbai alleged that accused Balu used iron bar to hitSangram, but Sangram attributed role to Balu for using stick, and thattoo only to his parents. Informant claims that he was hit with stick whereas his wifewas hit by stone by accused Sahebrao. But his own wife allegesassault by iron bar, that too only to son Sangram. Whereas Sangramattributes role of using stick to Sahebrao, not to himself but to hisparents and brother.Further according to informant, accused Baliram used both,kicks and fist blows as well as stone in assaulting himself, and alsoassaulted his wife with stone on shoulder and back. But PW3Sangram attributes role of using stick to accused Baliram, which is not CriAppeal-744-2004-14- stated by his parents. Whereas PW4 Raju made omnibus allegationsattributing use of kicks, blows, stick as well as iron bar.Therefore, above witnesses are giving distinct roles. There isvariance in the articles allegedly held by each of the accused andallegedly put to use. 11.PW7 Dr. Jadhav is the doctor who had occasion to examine andtreat witnesses and he has issued certificates of informant Shravan,PW3 Sangram and Bhagirathibai. PW4 Raju does not seem to havebeen examined. Doctor has opined injuries suffered by informantShravan, Sangram and Bhagirathibai to be simple. However, in cross,medico legal expert has answered that he has examined only threeinjured and that, he has examined woman namely Baghirathibai andnot Bharatbai. He admitted that certificates Exhibits 104 to 106 donot match in sequence of injuries as per MLC register. He hasadmitted that there is overwriting in respect of description of injurieson the person of informant Shravan and Sangram. He is also unableto remember at what time injured came at Primary Health Center. 12.It is noticed that in trial court, PW8 Namdev has beenexamined in support of recovery, but there is no memorandum and CriAppeal-744-2004-15- this witness at Exhibit 111 directly speaks about police informingabout quarrel and Police Head Constable preparing seizurepanchanama of one iron bar and one stick and taking his signatureover it. He identified the same to be at Exhibit 112. Finding him notsupporting, learned APP was permitted to put questions to him,wherein he denied there to be three iron bars and two sticks. In crossat the hands of defence, this witness has admitted that police did notaffix label over sticks or any other weapon. According to InvestigatingOfficer, on 02.12.1998 accused Bhagwan alone came to police stationwith three sticks and three iron bars, but evidence of PW8 is silentabout presence of accused Bhagwan. Therefore even so calledrecovery is not cogently proved. 13.To sum up, testimonies of PW1 to PW4 are not consistent.There are material omissions, contradictions. Allegations of settingvehicle to fire are general and omnibus in nature. Documents ofownership of vehicle are not gathered and made part of investigationpapers. Therefore, evidence on behalf of prosecution is apparentlyweak in nature. There is no independent witness in spite ofoccurrence taking place in a residential locality and when prosecutionitself shows presence of 40 to 50 people on the spot. There seems tobe dispute between both brothers, i.e. between informant and accused CriAppeal-744-2004-16- Bhagwan. In said backdrop, there seems to be implication. It wasexpected of prosecution to prove the case beyond reasonable doubt,that ingredients of each of the offences existed in the evidence onbehalf of prosecution. 14.For all above reasons, and bearing in mind the settled lawregarding appreciation of evidence in appeal against acquittal, there isno merit in the present appeal and as no case to interfere is made out,I proceed to pass the following order :ORDERThe appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.]vre