(1) Cri.Appeal No. 44/2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 44/2001
The State of Maharashtra
Through P.S.O. Police Station,
Pimpalner, Tal. & Dist. Beed. .. Appellant.
Versus
1. Dinkar Ramrao Khande
Age : 48 yrs, occu. : agri.,
2. Bhimrao Kondiba Khande
(Dead)
3. Motiram Tukaram Khande
Age : 22 yrs, occu. : agri.,
4. Venkat Shriram Khande
Age : 50 yrs, occu. : agri.,
5. Ramnath Pralhad Khande
Age : 30 yrs, occu. : agri.,
6. Dharmraj Kshirsagar Khande
Age : 35 yrs, occu. : agri.,
7. Sakharam Maroti Khande
Age : 55 yrs, occu. : agri.,
8. Eknath Bhavnath Khande
Age : 18 yrs, occu. : agri.,
9. Murlidhar Ramkishan Khande
Age : 38 yrs, occu. : agri.,
10. Dnyannoba Maroti Khande
Age : 40 yrs, occu. : agri.,
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(2) Cri.Appeal No. 44/2001
11. Ramkishan Shankar Khande
Age : 45 yrs, occu. : agri.,
12. Radhakishan Shankar Khande
Age : 38 yrs, occu. : agri.,
13. Kalyan Ram Khande
Age : 28 yrs, occu. : agri.,
14. Anirudh Kondiba Khande
Age : 45 yrs, occu. : agri.,
15. Mohan Laxman Khande
Age : 35 yrs, occu. : agri.,
16. Mahadev Ganpati Khande
Age : 42 yrs, occu. : agri.,
17. Bhartari Udhav Khande
(Died)
18. Kedarnath Udhav Khande
Age : 25 yrs, occu. : agri.,
19. Rameshwar Udhav Khande
Age : 22 yrs, occu. : agri.,
All r/o Mhalas Jawala, Taluka
and District Beed. .. Respondents.
(Original accused)
***
Mr. R.V. Dasalkar A.P.P. for State.
Mr. S.J. Salunke, Advocate for respondent Nos. 1, 3 to 16, 18
and 19.
Appeal is abated against respondent Nos.2 and 17.
***
W I T H
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(3) Cri.Appeal No. 44/2001
CRIMINAL REVISION APPLICATION NO. 321/2000
Radhakishan s/o Ramrao Raut
Age : 36 yrs, occu. : agri.,
R/o Mhalas Jawala, Taluka
and District Beed. .. Petitioner.
Versus
1. Dinkar Ramrao Khande
Age : 48 yrs, occu. : agri.,
2. Bhimrao Kondiba Khande
(Dead)
3. Motiram Tukaram Khande
Age : 22 yrs, occu. : agri.,
4. Venkat Shriram Khande
Age : 50 yrs, occu. : agri.,
5. Ramnath Pralhad Khande
Age : 30 yrs, occu. : agri.,
6. Dharmraj Kshirsagar Khande
Age : 35 yrs, occu. : agri.,
7. Sakharam Maroti Khande
Age : 55 yrs, occu. : agri.,
8. Eknath Bhavnath Khande
Age : 18 yrs, occu. : agri.,
9. Murlidhar Ramkishan Khande
Age : 38 yrs, occu. : agri.,
10. Dnyanoba Maroti Khande
Age : 40 yrs, occu. : agri.,
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(4) Cri.Appeal No. 44/2001
11. Ramkishan Shankar Khande
Age : 45 yrs, occu. : agri.,
12. Radhakishan Shankar Khande
Age : 38 yrs, occu. : agri.,
13. Kalyan Ram Khande
Age : 28 yrs, occu. : agri.,
14. Anirudh Kondiba Khande
Age : 45 yrs, occu. : agri.,
15. Mohan Laxman Khande
Age : 35 yrs, occu. : agri.,
16. Mahadev Ganpati Khande
Age : 42 yrs, occu. : agri.,
17. Bhartari Udhav Khande
(Died)
18. Kedarnath Udhav Khande
Age : 25 yrs, occu. : agri.,
19. Rameshwar Udhav Khande
Age : 22 yrs, occu. : agri.,
All r/o Mhalas Jawala, Taluka
and District Beed.
20. The State of Maharashtra .. Respondents.
(Accused Nos.1 to 19
are original accused)
***
Mr. R.A. Kulkarni for petitioner.
Mr. S.J. Salunke, Advocate for respondent Nos. 1, 3 to 16, 18
and 19.
Appeal is abated against respondent Nos.2 and 17.
Mr. R.V. Dasalkar, APP for the State.
***
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(5) Cri.Appeal No. 44/2001
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
RESERVED ON : 18.07.2017
PRONOUNCED ON : .08.2017
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. Criminal Appeal No. 44/2001 is filed by the State of Maharashtra and Criminal Revision Application No. 321/2000 is filed by Radhakisan Ramrao Raut, who is the original informant, against judgment and order dated 29.08.2000 passed by Additional Sessions Judge, Beed in Sessions Case No.91/1998 acquitting accused Nos.1 to 19 of the offences punishable under Sections 147, 148, 324 and 337 read with Section 149 of the Indian Penal Code and under Section 135 of Bombay Police Act.
2. Respondent Nos.1 to 19 are the original accused. Respondent No. 20 in Criminal Revision Application No. 321/2000 is the State of Maharashtra.
3. This appeal and revision being against one and the same judgment and order of Additional Sessions Judge, Beed, ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (6) Cri.Appeal No. 44/2001 are disposed of by this common judgment.
4. Prosecution case in brief is that the informant Radhakisan Ramrao Raut (PW-1) is the resident of village Mhalas Jawala, Taluka and District Beed and on 09.03.1994 at about 8.30 p.m. near the grocery shop of Gangadhar Raut he was abused and challenged by accused Mohan Laxman Khande. On 10.03.1994 at about 8.30 a.m. again the informant went to the same grocery shop and that time accused Mohan Laxman Khande abused and challenged him from Maruti temple. Accused Dnyanoba and Sakharam were also present near Maruti temple. Later on accused Mohan Khande dragged the informant upto Maruti temple and started beating him by kick and fist. Even accused Dnyanoba and Sakharam pelted stones and thereby injured the informant. After hearing shouts of the informant, Haribhau Khande, Namdeo Raut, Mahadeo Raut, Kisan Deorao rushed on the spot to rescue the informant. That time remaining accused persons came on the spot and they started pelting stones towards the informant and the persons who reached on the spot to save the informant. Due to pelting ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (7) Cri.Appeal No. 44/2001 of the stones, informant and other persons, who had come on the spot, sustained injuries. Some persons were also assaulted by stick blows. Therefore, on the same day informant lodged report to Police Station, Pimpalner. The injured were referred to Primary Health Centre, Pimpalner for examination. On the basis of F.I.R. (Exh. 16) Crime No. 37/1994 was registered at Police Station, Pimpalner under Sections 147, 148, 337 and 324 read with Section 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The injured were examined by Dr. B.N. Chalak (PW-4). During the course of investigation spot panchnama (Exh. 75) of the scene of offence was prepared and stones as well as sticks lying on the spot were seized by police. Investigating Officer Mr. S.S. Khan (PW-11) seized the blood stained clothes of the injured persons. On 14.04.1994 further investigation was handed over to P.S.I. Salunke who filed charge-sheet in the Court of Judicial Magistrate, First Class, Beed.
5. A counter criminal case was pending before the Additional Sessions Court, Beed i.e. Sessions Case No. 69/1995, ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (8) Cri.Appeal No. 44/2001 and therefore, this case was also committed to Additional Sessions Judge, Beed.
6. The then Additional Sessions Judge, Beed framed charge (Exh. 47) against original accused Nos.1 to 19 for the offences punishable under Sections 147, 148, 324 and 337 read with Section 149 the Indian Penal Code and Section 135 of the Bombay Police Act. Accused pleaded not guilty and claimed trial.
7. Prosecution examined total 14 witnesses. After considering the oral and documentary evidence placed on record by prosecution, the learned trial Court pleased to acquit all the accused of the offences punishable under Sections 147, 148, 324 and 337 read with Section 149 the Indian Penal Code and Section 135 of the Bombay Police Act. Therefore, this appeal and revision application arise.
8. Learned A.P.P. for the State submitted that though the injured eye witnesses were examined by the prosecution for ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (9) Cri.Appeal No. 44/2001 no proper reasons, their testimony was disbelieved by the trial Court. He pointed out that the witnesses examined by prosecution are interested and partisan witnesses, on that count their testimonies cannot be discarded. His next limb of the argument is that as the accused were aggressor party, right of private defence is not available to them.
9. On the other hand, learned Advocate for the respondents submitted that when on the basis of one and the same incident cross cases are filed against accused and informant's party, only because witnesses are injured witnesses, their testimonies cannot be relied upon, when otherwise it is not free from infirmities, due to material omissions and contradictions. He submitted that because nature of the injuries sustained by accused persons are more grave than the complainant party, only one inference can be drawn that complainant party was the aggressor and not the accused. He pointed out that due to assault by complainant party one person was killed and one of the accused namely Kedari Khande sustained grievous hurt. According to defence, injuries sustained ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (10) Cri.Appeal No. 44/2001 by all accused persons are not explained by the prosecution. Therefore, benefit of doubt goes in favour of accused/respondents. He also pointed out our attention towards omission and contradictions emerged in the testimony of prosecution witnesses as well as in variance with contents of F.I.R. He has also drawn our attention towards cross- examination of Medical Officer to show that certain prosecution witnesses sustained self inflicted injuries.
10. In the case at hand, admittedly at village Mhalas Jawala there were two rival parties, one of the informant and another of accused persons, on account of Grampanchayat election and Fair Price Shop. Even it is not disputed that on the basis of one and the same incident dated 10.03.1994 even complainant party was prosecuted and in that Sessions Case No.69/1995 some of the accused were convicted, whose appeal is also decided by this Court simultaneously. Thus, obviously the so called eye witnesses examined by prosecution, who are also injured witnesses, are interested and partisan witnesses. The legal position is absolutely clear that only because the ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (11) Cri.Appeal No. 44/2001 witness is interested or partisan, his testimony cannot be discarded if otherwise it is free from infirmities. However, the evidence of interested witness must pass the test of close scrutiny.
11. In the case at hand, the learned defence Counsel has raised objection regarding delay in lodging F.I.R. Considering the time of occurrence at about 8.30 a.m. and time of lodging F.I.R. at Police Station, Pimpalner at about 12.30 p.m., we do not find inordinate delay in lodging F.I.R. which needs explanation. On the other hand, both F.I.R. of cross cases are filed simultaneously, one after another.
12. Learned defence Counsel raised objection that the names of all accused and their specific overt acts are not mentioned in the F.I.R. (Exh.16) proved by Radhakisan (PW-1). However, the law regarding F.I.R. is absolutely clear that F.I.R. is not an encyclopedia which shall contain each and every minute details of the occurrence. Therefore, mere non-mentioning of the names of some of the accused persons cannot be a ground ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (12) Cri.Appeal No. 44/2001 to discard the prosecution case in toto. However, if the material facts are omitted in F.I.R., then in the background of inimical terms in between the parties, certainly the omission of material facts from F.I.R. will have some effect.
13. This case being a cross criminal case, initially we must ascertain which party was the aggressor party. No doubt, including Radhakisan (PW-1) all witnesses have categorically deposed that on the date and time of the occurrence, accused were aggressors who assaulted Radhakisan (PW-1) initially by fist and kick near Maruti temple and later on by sticks and stones. Similar allegations are also levelled against informant and his witnesses in counter criminal case. No doubt, on behalf of defence no witness is examined to establish their contention.
14. However, defence has relied upon the evidence of Dr. B.N. Chalak (PW-4) who has also examined the accused persons and other persons from the rival party. In examination in chief Dr. Chalak (PW-4) has proved injuries on the bodies of Dnyandeo Raut, Ram Raut (PW-8), Jalindar Raut, Rameshwar ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (13) Cri.Appeal No. 44/2001 Raut (PW-5), Maruti Khande (PW-6), Shivaji Khande (PW-2), Dharamraj Khande (PW-13), Namdeo Raut (PW-3), Bhujang Raut (PW-14), Dadarao Raut (PW-7) and Radhakisan Raut (PW-
1). However, from the cross-examination of Dr. Chalak (PW-4), defence has brought on record that on the same day this Medical Officer examined Eknath Dada Khande (accused No.8), Murlidhar Ramkisan Khande (accused No.9) and Dharamraj Khande (accused No.6). Defence has also filed postmortem notes (Exh.97) of Uddhav Khande and injury certificates (Exhs. 37 to 45) proved in counter Sessions Case No.69/1995. Postmortem notes (Exh. 97) shows that deceased Uddhav Khande sustained contused lacerated wounds on occipital parietal region upto bone as well as on right parietal region, with fracture of parietal bone. Even there was dislocation and fracture of left elbow bone of the deceased. The injury certificate (Exh. 99) of Kedari (accused No.18) reflects three contused lacerated wounds, 4 contusions as well as fracture of right ulna bone.
15. In para 21 of the judgment the learned trial Court ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (14) Cri.Appeal No. 44/2001 has given chart of injuries sustained by accused persons and the deceased. On the other hand, the injuries sustained by prosecution witnesses in the present case are either simple lacerated wounds or contusions or abrasions. No prosecution witness sustained grievous hurt like deceased Uddhav Khande and Kedari Khande (accused No. 18). Comparative study of the injuries sustained by both parties indicates that the party of the accused persons sustained more grave injuries including death of one person and grievous hurt to accused No. 18. Considering these circumstances, learned trial Court held that accused persons were not aggressors, but the party of informant was aggressor in the present matter. Therefore, the right of private defence goes in favour of accused and not in favour of informant's party. In the circumstances, slightest benefit of doubt should be given to accused persons.
16. Apart from this, on careful analysis of evidence of prosecution eye witnesses, it emerges that including Radhakisan (PW-1), PW-2, PW-3, PW-5, PW-6, PW-7, PW-8, PW-13 and PW- 14 injured eye witnesses and other eye witnesses have ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (15) Cri.Appeal No. 44/2001 materially improved their testimonies before the trial Court. The major portion of their allegation in examination in chief is proved as either material omission or contradiction and these omissions and contradictions are not minor discrepancies, but it goes to the root of their basic version. In other words, the omissions and contradictions emerging in the testimony of every eye witness shakes the basic version of this witness regarding assault by accused persons to the informant and other injured witnesses. For example, from the cross-examination of Radhakisan (PW-1) it emerges that his version in examination- in-chief regarding stone pelted by accused person on his forehead above left eye, oozing of blood from forehead and staining of clothes, as well as pelting of stone by accused Sakharam, the place of injury, involvement of accused Bhima Khande, Dinkar Khande, Bhartari Khande, Rameshwar Khande, Eknath Khande are proved as material omissions. Even the contention of this witness that accused came with sticks and stones on the spot is proved as material improvement. Even appearance of Gopinath Raut, Dnyandeo Raut, Rameshwar Khande, Ram Raut, Dharmraj Raut, Jalindar Raut, Namdeo ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (16) Cri.Appeal No. 44/2001 Raut, Dadarao Raut, Shivaji Khande, Maroti Khande on the spot to rescue this witness is one of the material omission. Assault by Mohan Khande, Dnyanoba Khande and accused Sakharam Khande to this witness by stick as well as pelting of stone by accused Ramkishan Khande on the head of Namdeo Raut is proved as material omission. The infliction of stick blow by accused Venkat and stone blow on the head of Shivaji Khande causing bleeding injury as well as assault by accused Murlidhar Khande by stick on the back of Gopinath Raut is also proved as material omission. Pelting of stone by accused Dnyanoba Khande at Gopinath Raut causing injury on the backside of the left ear is also a material omission. Even the contention of this witness that Kalyan Khande, Bhartari Khande inflicted stick blow on the left knee joint of Rameshwar Raut and Bhartari Khande hit the head of Rameshwar with the help of stone is also proved as material omission. The next contention of this witness that accused Dharamraj Khande held Maruti Khande and inflicted stick blow on his back is also proved as improvement. Pelting of stone by Dnyanoba Khande and causing injury to Maruti Khande on his left arm as well as ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (17) Cri.Appeal No. 44/2001 pelting of stone from the house of Dnyanoba Khande is also proved as omission. Even the contention of this witness that his party was not armed with weapon and due to stone pelting by accused complainant's party ran away from the spot, is also proved as omission. Similarly, each and every eye witness of the incident has totally improved their testimonies on every material particulars. There are material contradictions in the testimonies of prosecution witnesses which shakes their basic versions. In the F.I.R. itself Radhakisan (PW-1) has mentioned that he did not remember who was beating whom and he cannot state who sustained which injury on which part and by which weapon. No doubt, these contents were denied by this witness and it is proved as contradiction in the cross- examination of Investigating Officer P.S.I. Khan (PW-11). Thus, when the evidence of these all interested and partisan witnesses is full of material omissions and contradictions on material particulars, in the background of filing of cross cases, the testimonies of these witnesses cannot be relied upon to base the conviction of accused persons. The learned trial Court rightly rejected the oral evidence of these all prosecution witnesses. ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 :::
(18) Cri.Appeal No. 44/2001
17. Another important aspect considered by the learned trial Court is that in the cross-examination of Dr. Chalak (PW-4) it has been brought on record that injury No.3 on the body of witness Ram Raut, injury of Jalindar Raut, injury No. 2 of Rameshwar Raut, injury Nos.1 to 3 of Dharmraj Raut, injury No.2 of Bhujang Raut and injury of Dadarao Raut may be self inflicted. This witness has also admitted that contused lacerated wounds are possible if a person during hustle and bustle falls and their respective portions of the body comes in contact with hard and blunt substance. Thus, the possibility cannot be ruled out that the injuries found on the body of above referred prosecution witnesses are self inflicted or caused during fall on the ground during hustle and bustle at the time of occurrence. On the other hand, finding of such self inflicted injuries on the body of of certain prosecution witnesses is sufficient to hold that the prosecution is suppressing truth from the Court and it is not honest regarding disclosure of the incident. In the circumstances, the finding recorded by the learned trial Court for giving benefit of doubt to the accused persons cannot be termed as impossible view taken by the trial ::: Uploaded on - 04/08/2017 ::: Downloaded on - 06/08/2017 00:56:39 ::: (19) Cri.Appeal No. 44/2001 Court.
18. In other words, the view taken by trial Court while acquitting the accused persons is possible view, and therefore, this Appellate Court while dealing with correctness of the acquittal of accused cannot interfere. It follows that this appeal fails and deserves to be dismissed. Hence, the following order.
ORDER Criminal Appeal No. 44/2001 as well as Criminal Revision No. 321/2000 are dismissed.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
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