1 Cri Appeal 05 of 2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 05 of 2006
APPELLANT:- State of Maharashtra
through Police Station Officer,
Police Station, Asegaon.
VERSUS
RESPONDENTS:- 1. Namdeo Panduji Thakare,
(ACCUSED) aged about 60 yrs, Occ. Agril.
2. Deepak Devidas Thakare,
aged about 41 yrs,
Both resident of Wasni Bk.
Tq. Achalpur, Dist. Amravati.
Shri. M. M. Ekre, APP for State.
None for Respondent.
_____________________________________________________________________________________
CORAM : MRS. SWAPNA JOSHI, J.
DATE : 01.06.2017.
Oral Judgment :
1. This appeal has been preferred against the Judgment and order dated 11th November, 2005 delivered in Summery Case No. 668/2002 by the learned Judicial Magistrate First Class, Court No.2, Chandur Bazar thereby acquitting the respondents for the offences punishable under Sections 295, 504, 506 read with Section 34 of Indian Penal Code.
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2 Cri Appeal 05 of 2006
2. Heard learned APP Mr. Ekre for the State. Learned Counsel for the respondents remained absent. With the assistance of learned APP, I have gone through the entire record of the case, impugned judgment and order.
3. The learned APP contended that the acquittal of the respondents recorded in this case by the learned Magistrate is perverse and illegal in as much as the learned Magistrate has failed to consider the evidence of the eye-witnesses who were present at the place of incident..
4. I have gone through the entire evidence. Prosecution has examined in all 6 witnesses. PW-1, PW-2 and PW-3 are alleged eye- witnesses who were present at the place of incident. PW-4 and PW-5 are the Panchas on the point of place of incident. They turned hostile and did not support the prosecution case. PW-6 is the Investigating Officer, who simply recorded the complaint of the complainant. No other investigating officer has been examined by the prosecution.
5. The prosecution case in brief is that the complainant (PW-1) was the Treasurer of Shri Sant Rangrao Maharaj Sansthan. On 25.05.2002 at around 02.30 p.m., the complainant along with some other persons of the Sanstha were busy in work. At that time, accused ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 ::: 3 Cri Appeal 05 of 2006 persons came there and asked Ragrao Maharaj for keys of the Temple. They also threatened him that if he did not hand over keys to them, they would kill him. It is alleged that the accused No.1 snatched the keys from Rangrao Maharaj and went inside the temple. They abused Lord Ganesha, by inflicting kick blows to the idol. They threw away idol of Lord Krishna which was placed on the idol of Lord Ganesha resulting into breaking the idol of Lord Krishna into pieces. It is the case of the prosecution that complainant Pramod Thakare along with Rangrao Maharaj and others tried to resist accused from damaging the idols. However, they could not succeed in it. The accused persons thereafter left that place. They threatened Rangrao Maharaj to leave the temple or face dire consequences. Due to the said act of the accused persons, the religious feelings of the complainant were hurt. Therefore, he lodged the complaint against the accused persons. The complaint was registered, further investigation was carried out, statements of the witnesses were recorded and charge-sheet was submitted in the learned Magistrate Court.
6. As per the testimony of PW-1, at around 02.00 p.m., he was sitting in one room along with Rangrao Maharaj and Vinayakrao Khadse (PW-3). At that time, the temple was closed therefore, the accused demanded keys of temple from Rangrao Maharaj. On his refusal to hand over the keys, accused No.1 Namdeo snatched the keys from the ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 ::: 4 Cri Appeal 05 of 2006 hands of Rangrao Maharaj and opened the temple. The accused went inside the temple and abused idol of Lord Ganesha and inflicted the kick blows to it. Similarly, accused Namdeo broke the idol of Lord Krishna. According to PW-1, he tried to restrain the accused from destroying the idol but, it was of no use. Thereafter, accused threatened Rangnatrao Maharaj with dire consequences. According to PW-1, due to said incident, his religious feelings were hurt therefore, he lodged complaint (Exh. 24). During the cross-examination, it has come that there was some dispute with regard to the land on which the temple was situated. PW-1 has stated in the cross-examination that the idol is placed upon lotus flower which is having height around 2 ½ feet and the lotus flower is based on Concrete dias of 2 ½ feet. In these circumstances it is not clear as to how the accused persons of average hight damaged idol by kick blows which was on the height of 5 feet. The PW-1 specifically stated in his cross-examination that he has not mentioned in his report that accused Namdeo has snatched keys from Rangrao Maharaj and opened the door of temple. PW-1 stated that he does not remember whether he had stated in his report that Namdeo had thrown the idol of Lord Krishna on the ground and Deepak fragmented it with stick. The testimony of PW-1 does not inspire confidence. So also, the material witness Rangnatrao Maharaj has not been examined by the prosecution. Pertinently, PW-1 specifically stated that he was sitting in another room along with Rangrao Maharaj and ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 ::: 5 Cri Appeal 05 of 2006 Vinayak Khadse (PW-3), at the time of incident hence the presence of PW-1 at the place of the incident becomes doubtful.
7. According to PW-2, at the time of incident, he was taking food, sitting in the room at Southern side of temple whereas PW-1 and PW-3 were sitting in Northern side room of the temple. According to PW-2, accused Namadeo used bad words in filthy language. PW-2 specifically stated that accused Deepak held his hand and accused Namdeo snatched keys from him. Whereas in the cross-examination of PW-2 clarified that accused Deepak caught hold of his hands and accused Namdeo snatched keys from him. Significantly, said version does not find place in his statement recorded by Police. Certain improvements were made by said witness saying that accused Namdeo and accused Deepak destroyed idol of Lord Krishna. Said version also does not find place in the Police Statement. Pertinently according to PW-1, accused Namdeo snatched keys from Rangrao Maharaj. The testimony of PW-2 is full with infirmities. As far as PW-3 is concerned, he stated that at the time of incident, accused came to the temple and abused Rangrao Maharaj and snatched keys from him. He tried to restrain the accused but it was of no use. It is not clear from the testiomy of PW-3 as to which accused abused Rangrao Maharaj and snatched the keys. He has made an improvement to the extent accused person had taken away the keys of the temple. This version ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 ::: 6 Cri Appeal 05 of 2006 does not find place in his Police Statement.
8. I have carefully scrutinized the statements of PW-1, PW-2 and PW-3. It is noticed that there are glaring discrepancies in the version of all the witnesses. The testimony of PW-1 does not corroborate with that of PW-2 and PW-3. As regards the incident of snatching of keys. It is not not clear as to from whom exactly the keys were snatched. PW-1 has not disclosed the presence of PW-2, Shalikram Sonone. According to PW-1, the keys were snatched from Rangrao Maharaj who has not been examined whereas, according to PW-2, accused Deepak held his hands and Namdeo snatched snatched the keys from him. There is material discrepancy with regard to the snatching of the keys so also as regards the incident of inflicting kicks on the idol of Lord Ganesha and damaging the idol of Lord Krishna. The evidence of PW-1 indicates that when accused Namdeo snatched keys from Rangrao Maharaj, at that time PW-1 was present there along with PW-3, Vinayak Khadse. So far as the testimony of PW-2 is concerned when the accused approached him, he was having food and was sitting alone in a room situated at Southern side of temple and and at the relevant time, PW-1 and PW-3 were busy in another room i.e. room which is situated at the Northern side of the temple. His version therefore, makes the presence of PW-1 and PW-3 doubtful. If that is the case, it is not clear as to why PW-1 and PW-3 stated about ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 ::: 7 Cri Appeal 05 of 2006 snatching of keys by the accused from Rangrao Maharaj.
Thus, on considering the testimonies of all these three witnesses, it is noticed that they are inconsistent with regard to the presence of the witnesses at the place of incident. If at all PW-1 was present with PW-3 in another room, in that case, it is not possible that they were present with PW-2, when the accused snatched keys, as admittedly, PW-2 was taking meals in another room. Thus, presence of witnesses at the place of incident becomes doubtful. Therefore, their testimony with regard to snatching of the keys and damaging of the idol of Lord Krushna by the accused persons become doubtful.
9. As far as the allegation that the idol of Lord Ganesha was damaged by the accused persons, according to PW-1, idol of Lord Ganesha was placed upon a Lotus flower having height of 2 ½ feet and lotus flower was placed upon the dias having height of 2 ½ feet which makes it clear that the idol of Lord Ganesha was placed at least 5 feet from the ground. In these circumstances, it is unclear that as to how the accused persons kicked the idol and abused it which was placed at the height of 5 feet from the ground. It is also not clear as to how the idol of Lord Krishna was kept on the idol of Lord Ganesha. The Panchas on the point of panchanama of place of incident, turned hostile. Investigating Officer PW-6 has not mentioned anything about the preparation of spot panchanama. In these circumstances, the ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 ::: 8 Cri Appeal 05 of 2006 position of the spot is also not clear. The testimony of the eye- witnesses do not inspire confidence. As far as Investigating Officer is concerned, he has simply stated about recording the complaint. He has not stated anything about further investigation.
10. In view of facts and circumstances, it appears that view taken by the learned Magistrate is plausible. In the exercise of its appellate jurisdiction particularly appeal against the acquittal, it is not open to this Court to substitute its own view with a view taken by the learned Lower Court unless the view taken by the learned Lower Court is illegal or perverse against the principles of Law. No sufficient ground is made out by the appellant to infere with the impugned judgment and order. The appeal therefore, stands dismissed.
JUDGE Gohane ::: Uploaded on - 15/06/2017 ::: Downloaded on - 28/08/2017 04:34:45 :::