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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 410 OF 2004
State of Maharashtra,
through Police Station Officer,
Police Station City Kotwali, Akola. .... APPELLANT
VERSUS
1) Sanjay Lalchand Chandak,
Aged about 32 years,
Occupation - Service,
R/o Aashray Nagar, Akola.
2) Rajendra Roopchand Chandak,
Aged about 30 years,
Occupation - Business,
R/o Tilak Park, Ramdaspeth, Akola.
3) Munna @ Mangalsingh Babusingh
Thakur, Aged about 29 years,
Occupation - Contractor,
R/o Shiv Nagar, Akola.
4) Vishal Babanrao Nandanwar,
Aged about 30 years,
Occupation - Education,
R/o Shivaji Nagar, Akola.
5) Hukum @ Tiger Laxman Sarwan,
Aged about 30 years,
Occupation - Labourer,
R/o Shiv Nagar, Bhangi Pura, Akola. .... RESPONDENTS
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______________________________________________________________
Shri A.M. Kadukar, Addl.P.P. for the appellant,
Shri A.J. Thakkar, Advocate for the respondents.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 22
nd NOVEMBER, 2017
ORAL JUDGMENT :
The State is in appeal assailing the judgment and order dated 23-3-2004 passed by the learned Judicial Magistrate First Class, Court 4, Akola in Criminal Case 729/2002, by and under which the respondents (hereinafter referred to as the "accused") are acquitted of offences punishable under Sections 143, 147, 294, 452, 387 and 506 of the Indian Penal Code.
2. Heard Shri A.M. Kadukar, learned Additional Public Prosecutor for the appellant and Shri A.J. Thakkar, learned Advocate for the accused.
3. The learned Additional Public Prosecutor submits that the view taken by the learned Magistrate is not a possible view and perversity of approach and in appreciation of evidence is writ large upon the face of the judgment impugned. The judgment of acquittal is ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: 3 apeal410.04 infirm, on facts and in law, is the submission.
4. Per contra, the learned Advocate for the accused submits that a possible view is taken and there is no compelling reason demonstrated for this Court to interfere in the judgment of acquittal.
5. The gist of the prosecution case is that the complainant Umeshkumar Sharma, is engaged in business of kirana shop. Between 2.00 to 2.30 p.m. on 28-5-2002 the accused came to the residence of the complainant, entered the residence and abused the complainant in obscene words. The accused demanded ransom of Rs.20,000/- (rupees twenty thousand), to permit the complainant to carry on business. The accused threatened to kill the complainant and assaulted him with fists and kicks. The police, who arrived having received a telephone message, arrested the accused from the spot.
6. The learned Magistrate framed charge (Exhibit 24) for offences punishable under Sections 143, 147, 294, 452, 387 and 506 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. The defence is of total denial and false implication due to inimical relationship.
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7. The learned Magistrate, while dealing with the submission on behalf of the defence that the accused were not subjected to test identification, rightly held that since the accused were apprehended from the residence of the complainant, their presence on the spot is not in serious dispute.
8. The evidence of P.W.1 Sau. Vidhya Desai, P.W.3 Vasantrao Tambekar and P.W.2 Umesh Sharma, the complainant is marshalled and appreciated by the learned Magistrate in paragraphs 11, 12, 13, 14, 15 of the judgment impugned, which appreciation, in my opinion, is unexceptionable. The learned Magistrate noted that admittedly there was a dispute between P.W.1 and accused Sanjay in respect of lane between their houses. P.W.1 lodged a report against accused Sanjay on 10-5-2002 and on 28-5-2002 P.W.1 alongwith her brother P.W.3 and others had been to police station to explore the possibility of an amicable settlement with the accused Sanjay. P.W.1 states that accused Sanjay did not come to the police station. P.W.1 is the neighbour of the complainant. The relationship between P.W.1 and the complainant is not clear since according to the complainant he has good relations with P.W.1 and the relationship is that of tenant and landlord. P.W.1 has deposed that on 28-5-2002 at 2.30 p.m. the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: 5 apeal410.04 accused arrived shouting that P.W.1 and the complainant must withdraw the complaint and pay the accused Rs.20,000/-. The accused assaulted the complainant, is the submission. It is elicited in her cross-examination that the statement that the accused assaulted the complainant by kicks and fists, is an omission. The inter se discrepancy between the evidence of P.W.1 and P.W.2 complainant is glaring. While the complainant has deposed that the accused demanded Rs.20,000/- as ransom to permit him to carry on business in the locality, this is not the version of P.W.1. P.W.2 Umesh himself does not specifically state that he was assaulted by kicks and fists and there is only a general statement in his evidence that accused beat him. The medical evidence is inconsistent with assault as is evident from medical certificate Exhibit 64 issued by P.W.5 Dr. Ranjit Korde.
9. P.W.3 also does not say in the evidence that the accused demanded ransom from the complainant. P.W.1 Vidhya Desai and P.W.3 Vasantrao Tambekar do depose that the accused persons insisted that the complaint lodged by P.W.1 be withdrawn. However, this is not the version of the complainant and his deposition is at stark variance with that of P.W.1 and P.W.3. Be it noted that the police who arrived at the spot and apprehended the accused from the spot have ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 ::: 6 apeal410.04 not found any evidence of a physical altercation or an assault, as is apparent from the evidence of the investigating officer.
10. The prosecution witnesses have not deposed about use of obscene words, the report is silent on the particulars of the alleged obscene words and the charge under Section 294 of the Indian Penal Code must necessarily fail, as is rightly held by the learned Magistrate. The charge under Section 387 is also not substantiated and the apprehension of evidence by the learned Magistrate as is reflected in paragraph 16, as regards the said charge, is again unexceptionable.
11. I have given my anxious consideration to the evidence on record. I do not see any compelling reason to interfere with the judgment of acquittal. The appeal is sans merit and is dismissed.
JUDGE adgokar ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:17:14 :::