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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.31 OF 2006
1) Rama Shrikrushna Ugale,
Aged about 23 years,
2) Tulshiram Govinda Ugale,
Aged about 41 years,
3) Ganesh Madhukar Ugale,
Aged about 20 years,
4) Dnyaneshwar Vitthal Ugale,
Aged about 23 years,
5) Dilip Kanhuji Ugale,
Aged about 37 years,
6) Bharat Kanhuji Ugale,
Aged about 30 years,
7) Jagan Baliram Ugale,
Aged about 29 years,
All Agriculturists & R/o Kajal-
Amba, Tq. & Distt. Washim. .... APPELLANTS
VERSUS
State of Maharashtra,
through Police Station, Ansing,
Tq. & District Washim. .... RESPONDENT
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______________________________________________________________
Shri R.L. Khapre, Advocate for the appellants,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 2 nd FEBRUARY, 2018.
ORAL JUDGMENT :
The appellants seek to assail the judgment and order dated 20-1-2006 rendered by the learned IInd Ad hoc Additional Sessions Judge, Washim in Sessions Trial 18/2005, by and under which the appellants are convicted for offence punishable under Sections 143, 436, 427 and 323 read with Section 34 of the Indian Penal Code ("IPC" for short). The sentence awarded is simple imprisonment for three months and to payment of fine of Rs.500/- for offence punishable under Section 143 of the IPC, rigorous imprisonment for five years and to payment of fine of Rs.1,000/- for offence punishable under Section 436 read with Section 34 of the IPC, rigorous imprisonment for one year and to payment of fine of Rs.1,000/- for offence punishable under Section 427 read with Section 34 of the IPC and simple imprisonment for three months and to payment of fine of Rs.500/- for offence punishable under Section 323 read with Section 34 of the IPC. ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 :::
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2. The gist of the prosecution case is thus :
P.W.1 Yashodabai Padghan is in cultivating possession of Class-E land bearing Survey 42, admeasuring 5 Acres situated in Kajlamba. P.W.1 and her husband P.W.2 had constructed a hut on the said agricultural land and were residing therein since the standing crop needed protection. The household articles needed for the day to day living were in the said hut.
The incident occurred on 10-8-2004. P.W.2 Kashiram had gone to Washim to purchase grocery. Between 9-30 a.m. to 10-00 a.m., all the accused came near the hut and started abusing P.W.1. The accused had brought a five litre can of kerosene. Accused 1 Rama poured kerosene around the hut which was set on fire by accused 3 Ganesh by igniting a matchstick. Accused 2 Tulshiram instigated the other accused to set hut on fire. The cattle brought by accused Dnyaneshwar, Dilip and Jagan were driven in the standing crop of soyaben and accused Bharat and Dilip assaulted P.W.1 by a Neem stick.
P.W.1 waited for her husband to arrive, who returned at 5- 00 p.m. or thereabout. P.W.1 narrated the incident to P.W.2. A written report (Exhibit 22) was lodged by P.W.1 at Ansing Police Station at 6-15 p.m. or thereabout. On the same day P.W.1 Yashodabai ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 4 apeal31.06 was referred for medical examination. The spot panchanama was recorded on 25-8-2004 (Exhibit 27). The statements of witnesses were recorded between 25-8-2004 and 27-8-2004. The accused were arrested and upon completion of the investigation, charge-sheet was filed in the court of Judicial Magistrate First Cass, Washim, who committed the proceedings to the Sessions Court.
3. The learned Sessions Judge framed charge under Sections 143, 436, 427 and 323 read with Section 34 of the IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial and false implication. The motive for false implication is stated to be the action initiated against the complainant and her husband for removal of the encroachment on the Class-E land, which concededly is Government land. The defence examined three witnesses namely Keshao Aochar, Rama Gaikwad and Shaikh Deewan.
4. Heard Shri R.L. Khapre, learned Counsel for the appellants/accused and Shri N.H. Joshi, learned Additional Public Prosecutor for the respondent/State.
5. The learned Counsel for the accused Shri R.L. Khapre ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 5 apeal31.06 submits that the investigation is not only unfair but borders on dishonesty. Shri R.L. Khapre, learned Counsel would submit that the evidence on record indicates that the very authenticity of the first information report (Exhibit 22) is suspect. The fact that the prosecution has not come forward with any explanation whatsoever for not registering the offence till 24-8-2004, would suggest that sanha entry taken in the police station at 8.15 p.m. on 10-8-2004 was not with reference to first information report (Exhibit 22) and, was in every probability with reference to a limited complaint of P.W.1 having suffered simple hurt. The learned Counsel Shri R.L. Khapre would submit that since the offence punishable under Section 323 of the IPC is non-cognizable, the police did not, and justifiably so take cognizance of the first information report. The registration of offence under Sections 435, 427, 323 and 504 read with Section 34 of the IPC on 24-8-2004, without any explanation forth coming for the delayed registration of offence, would suggest false implication or over implication at the behest of the complainant, is the submission. The existence of the hut is not proved, is the submission of the learned Counsel Shri R.L. Khapre. The evidence of P.W.1 is not consistent with injury report (Exhibit 38) and the testimony of P.W.1 is not confidence inspiring, is the submission. The learned Counsel would submit that ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 6 apeal31.06 the evidence on record is not sufficient to prove the offence beyond reasonable doubt and au contraire the defence of the accused of false implication is more than probabalised on the touchstone of preponderance of probabilities.
6. Per contra, the learned Additional Public Prosecutor Shri N.H. Joshi would support the judgment and order impugned.
7. Concededly, the only eyewitness is the complainant herself. She has deposed that at 10-00 a.m. on the day of the incident the accused came near her hut, accused Rameshwar poured kerosene around the hut and accused Ganesh set the hut afire. The other accused drove the cattle in the soyabean crop and damaged the crop. Accused Dilip inflicted a stick blow on the leg. P.W.1 states that she and her husband suffered loss of Rs.10,000/- since the articles stored in the hut were destroyed. P.W.1 then states that after her husband returned at 5-00 p.m., the report was lodged at Police Station Ansing. She proves the oral report (Exhibit 22). She states that previously she and her husband instituted civil suit since the possession of the land was being disturbed and secured an injunction. She proves the copy of the judgment (Exhibit 24) of the civil Court. In the cross-examination, ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 7 apeal31.06 P.W.1 states that after the incident, she immediately went to the residence of police patil and narrated the incident to him. She states that she was advised by the police patil to lodge the report after her husband returns from Washim. P.W.1 then states that from the residence of police patil she returned to the field and was in the field till her husband returned. She states that she went to Ansing at 6-00 p.m. and lodged the report. P.W.1 states that the report was typed in the police station courtyard and that she narrated the instructions to the typist. She is not in a position to state to whom the copies of the report were sent. In the next breath, she states that the copies of the report were sent to the Superintendent of Police and the Tahsildar. She states that she went to the tahsil office the next day, however, the officials of the tahsil office did not visit the spot. She states that two police officials came to the spot on the next day and prepared panchanama. She further states that the police recorded the statements of the witnesses on the next day of the incident. She admits that the accused had lodged the complaint with the tahsil office seeking removal of the encroachment. She denies the suggestion that the talathi had visited the field on 03-8-2004 and prepared the panchanama.
She further states in the cross-examination that the ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 8 apeal31.06 accused had brought 200 to 300 cattle in the field. She saw the cattle from distance of 5 to 50 meters approaching the field from Washim- Kalamba Road. She states that since nobody was around, she did not call for help. She states that the accused were in the field for one hour. The accused were around the hut, the cattle destroyed the soyabean and tur crops, however, she neither called out seeking help nor did she go to the village, other than for visiting the residence of the police patil.
8. She states that the hut was situated on the western side corner of the land. She states that police made enquiries from her twice and the second enquiry was after fifteen days of the incident. P.W.1 states that her statement and that of her husband P.W.2 was recorded on the next day of the incident and the statements of Sheshrao Kamble and Kisan Kamble were recorded after fifteen days of the incident. She asserts that her statement and that of her husband was not recorded subsequently. In the cross-examination, it is brought on record that the cattle did not enter the neighbouring and adjoining fields and entered only in her field. She denies the suggestion that she is falsely implicating the accused since the accused lodged report complaining of the encroachment committed by her and P.W.2. She, however, admits that in the past she did file a report against the ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 9 apeal31.06 previous sarpanch Niranjan Ugale and her husband P.W.2 lodged the report against the tahsildar Bal Sakhare alleging that P.W.1 and P.W.2 were abused by the said sarpanch and tahsildar.
9. Kashiram Padghan, the husband of the complainant (PW 2) has deposed that on the day of the incident at 8.30 a.m. he went to Washim to purchase grocery and returned at 5.00 pm. He found the hut burnt. The incident was narrated to him by his wife PW
1. He states that the total loss caused was between Rs.7,000/- to 80,000/-.
In the cross-examination, it is brought on record that the specific role attributed to the accused, on the basis of information received by PW1, is an omission. PW 2 admits that the incident occurred in rainy season. He states that he reached Aansing Police Station at 6.00 p.m. alongwith PW 1 who lodged the report. PW 2 states that the report was drafted by advocate Shri Ingle of Washim. PW 2 states that he and PW 1 reached Washim at 5.00 p.m. and the report was typed as per the instructions given by PW 1 at Washim. He claims ignorance of the complaint made by the accused to the tahsildar against PW 1 and PW
2. He denies the suggestion that the talathi inspected the field on 8.9.2004 and prepared panchanama. The suggestion that the accused ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 10 apeal31.06 are falsely implicated since they were complaining to the tahsildar, is denied. It is elicited that since the police did not initiate any action for 15 days, report was lodged with Superintendent of Police. He states that the police came for inquiry after one month of lodging of report.
10. PW 3 Sheshrao Kamble who is examined to prove the spot panchanama Exh. 27 did not support the prosecution, although, he is one of the plaintiffs in the civil suit instituted seeking injunction. In the examination in chief, he disclaims knowledge of existence of hut on the land encroached by PW 2.
In the cross-examination on behalf of he prosecution, nothing is elicited to assist the prosecution.
11. PW 4 Kisan Kamble, who was also a plaintiff in the civil suit, did not support the prosecution. PW 4 was examined to prove the spot panchanama Exh. 27. However, he denies having gone to the field of PW 2 and states that his signature was obtained by the police in the village.
12. PW 5 Ramkrushna Manwar is the police patil of the village who deposed that PW 1 came to him at 11.00 a.m. and complained ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 11 apeal31.06 that her crop was damaged. PW 5 states that he accompanied PW 1 and noticed damage to the crop. However, he states that he is not aware of the existence of hut in the field and denies that PW 1 disclosed the names of persons responsible for damaging the crop. Nothing is elicited in the cross-examination of PW 5 to take the case of the prosecution any further.
13. PW 6 Pandit Rathod, then attached to Police Station Ansing as ASI recorded the First Information Report. PW 6 asserts that Exh. 22 is the typed report submitted by PW 1.
In the cross-examination, it is elicited that there is no facility of typing in the police station.
14. PW 7 Panjabrao Ingle is one of the Investigating Officers. His deposition is that it was when he recorded the spot panchanama Exh. 27, he noticed that the hut was burn and crops were damaged. He recorded the statement of PW1, PW 2 and the police Patil - Ramkrushna (PW 5). PW 7 states that it was after recording of the statements of the witnesses that he realized that offence punishable under section 436 of the IPC is made out and he brought this fact to the notice of the police station officer. It was thereafter that offence ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 12 apeal31.06 under section 436 of the IPC was additionally registered, is the deposition. In the cross-examination, he states that he did not visit the village Kajalmba for investigation before 25.8.2004. The witness is not aware as to what transpired between 10.8.2004 to 25.8.2004. He states that although he recorded statements of 25 persons other than PW 1, PW 2 and the police patil, he did not record statements of the neighbouring field owners.
15. PW 8 Dr. Sudhakar Gunaghe who examined PW 1 Yashodabai has deposed that he noticed pain and tenderness over the left knee joint and right knee joint. The injuries could be caused to labours working in the field, is what elicited in the cross-examination.
16. PW 9 - Maroti Aoghale then attached to Police Station Ansing as PSI has filed the charge sheet.
17. Keshav Aochar, the talathi is examined as DW 1. He has deposed that he prepared a report of the encroachment on made by PW 1 and PW 2 on 9.6.2003 and submitted the encroachment report to the tahsildar on 4.8.2004. He has proved the report Exh. 46. DW 1 states that when he prepared the report, he did not notice a hut. ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 :::
13 apeal31.06 In the cross-examination, DW 1 states that he submitted the report since the Sarpanch had applied for the same. DW 1 states that he visited the field on 4.8.2004 in the morning. He denies the suggestion that he used to send reports at the dictates of the Sarpanch. DW 1 has denied the suggestion that he prepared a false report without inspecting the land.
18. DW 2 Rama Gaikwad is examined to prove that none of the accused took any cattle from the cattle in his possession.
19. DW 3 Sheikh Avesh is examined to prove that PW 2 Kashiram resides in front of his house since beginning. DW 3 has deposed that he used to see Kashiram and family daily and he did not shift to any other residence.
20. Analysis of the ocular evidence on record would reveal that from the perspective of the prosecution, the material witnesses are PW 1 Yashodabai and PW 2 Kashiram. The First Information report of the incident was lodged at 6.00 p.m. on 10.8.2004, according to PW 1 and PW 2. The printed First Information Report Exh. 23 recites that the information of the offence was received at the police station at ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 14 apeal31.06 12.00 p.m. on 24.8.2004. Column 4 of the printed First Information Report states that information was written. Column 8 of the printed First Information Report states that the reasons for delay in reporting by complainant / informant is "after inspecting the spot of occurrence". However, the spot is inspected and panchanama was recorded on 25.8.2004. PW 7 Panjabrao Ingole, who claims that after recording the statement of witnesses, he realized that offence punishable under section 436 of IPC is made out, admits that he did not visit village Kajalmba before 25.8.2004. The prosecution has not adduced any evidence whatsoever to show that the police visited the scene of incident prior to 25.8.2004. In the teeth of the evidence on record, the reason recorded for delayed registration of the offence is clearly false.
21. The learned counsel for accused Shri R.L. Khapre is more than justified in attacking the authenticity of the report produced on record and the fairness of the investigation. The evidence of PW 1 and PW 2 as regards the lodging of the report is too inconsistent to be reconciled. PW 1 states that her husband returned to village at 5.00 p.m. and then she alongwith her husband went to Ansing police station, the report was typed written in the premises of the police station and lodged on 10.8.2004. This evidence is totally inconsistent ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 15 apeal31.06 with the testimony of her husband PW 2 who claims to have reached Washim at 5.00 p.m., which is a physical impossibility since he returned to his village at 5.00 p.m. and got the written report drafted from advocate Shri Ingle at Washim and then to have come to Ansing Police Station to lodge the report. The prosecution has not made any effort whatsoever to explain why no action was initiated on the report lodged on 10.8.2004 till 24.8.2004. It is already noticed supra that according to the printed First Information Report, the information was received from the complainant on 24.8.2004 and the explanation for delayed report is recorded as "after inspecting the spot of occurrence". The fact that the contents of the First Information Report Exh. 23 are falsified by the irrefutable position on record that there was no inspection of the scene of occurrence prior to 25.8.2004, must put the Court on guard and the evidence of PW 1 and PW 2 must be scrutinized closely and with extreme caution in the light of the submission of the learned counsel Shri R.L. Khapre that the very authenticity of the report is suspect. The inconsistencies and discrepancies inter se in the evidence of PW 1 and PW 2, the failure of the prosecution to explain as to what transpired between 10.8.2004 to 24.8.2004, and the ex facie falsehood in the printed First Information Report Exh. 23 cumulatively satisfies the conscious of the Court that ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 16 apeal31.06 the defence has created sufficient doubt about the veracity and indeed the authenticity of the report of the incident.
22. The motive for false implication or at any rate for over implication is brought on record by the defence. It is not in dispute that PW 1 and PW 2 are encroachers on government land. It is further not in dispute that the accused were attempting to clear the encroachment and to the said end were lodging complaints with the concerned officials. It is admitted by the PW 1 that even in the past she and her husband lodged reports against the previous Sarpanch and the tahsildar respectively alleging that the Sarpanch and the tahsildar abused PW 1 and PW 2. The obvious motive to falsely implicate or over implicate the accused is an additional circumstance to test the evidence of PW 1 and PW 2 with extreme caution.
23. The witnesses to the spot panchanama PW 3 Sheshrao and PW 4 Kisan did not support the prosecution. It is only PW 7 - Investigating Officer who has proved the spot panchanama. The learned counsel for the accused Shri R.L. Khapre has invited my attention to two glaringly significant aspects. The first aspect is that while PW 1 states that the hut was situated on the western side corner ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 17 apeal31.06 of the field, the spot panchanama records that the hut is situated adjacent to the northern embankment (Dhura). The second aspect is that DW 1 talathi who inspected the encroachment on 4.8.2004 states that he did not notice a hut. Apart from the fact that the witnesses to the spot panchanama did not support the prosecution and none of the prosecution witnesses other than PW 1 and PW 2 and the Investigating Officer testify as to the existence of the hut, in the submission of Shri R.L. Khapre, PW 1 and PW 2 who reside in a house in the village, are highly unlikely have been residing in the hut in the rainy season. The learned counsel would further submit that the spot panchanama per se is suspect in view of the household articles and the condition thereof as is recorded in the spot panchanama, which is concededly prepared after 15 days of the incident, and that too in the rainy season.
24. Concededly, the only eye witness is PW 1 herself. The police patil PW 5 has deposed that although PW 1 did approach him at 11.00 a.m. on the day of the incident, she made a limited complaint that her crops were damaged. The police patil has deposed that he did accompany PW 1 to the field in her possession but then he did not notice any hut. The police patil states that no names were disclosed by PW 1. Nothing is elicited in the cross-examination on behalf of the ::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 ::: 18 apeal31.06 prosecution of the police patil who was declared hostile, to assist the prosecution. The evidence of PW 1 Yashodabai is not corroborated by any other witnesses except her husband PW 2 who claims that when he returned from Washim at 5.00 p.m., the incident was narrated to him by his wife PW 1. I have already observed that the evidence as regards the lodging of the report on 10.8.2004 is marred by serious infirmities, in the teeth of evidence on record, it would be extremely unsafe and hazardous to hold that the prosecution has proved the offence beyond reasonable doubt, only on the basis of the evidence of PW 1 Yashodabai.
25. It is trite law, that conviction can not be based on suspicion, howsoever, grave the suspicion may be. The prosecution has not bridged the gulf between suspicion and proof by cogent and unimpeachable evidence. The accused deserve to be given benefit of doubt which I am inclined to do. In the result, I pass following order:
(i) The judgment and order impugned is set aside and the accused are acquitted of offence punishable under Sections 143, 436, 427 and 323 read with Section 34 of the Indian Penal Code.::: Uploaded on - 02/02/2018 ::: Downloaded on - 20/05/2018 21:18:09 :::
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(ii) The bail bond of the accused shall stand discharged. Fine
paid by the accused, if any, shall be refunded to them.
(iii) The appeal is allowed.
JUDGE R.S. Belkhede, P.A.
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