The State Of Maharashtra vs Jaganath Shantaram Pawar
2012 Latest Caselaw 491 Bom

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nsc.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION




                                                                        
                       CRIMINAL APPEAL NO. 328 OF 1996




                                                
       The State of Maharashtra               ... Appellant
                                         (Original Complainant)

                 Versus




                                               
       Jaganath Shantaram Pawar,
       Age 38 years, Occupation Agriculture
       R/o. Ambele Budruk,
       Tal. Murbad,                                 ...Respondent




                                       
       District - Thane.                          (Original Accused)
                          
       Mrs. M.H. Mhatre, APP for the State.
       None for the Respondent.
                         
                                   CORAM:     P.D KODE, J.

                                   DATE :     14th DECEMBER, 2012


       ORAL JUDGMENT
         
      

1. The appellant-State of Maharashtra has appealed against the Judgment and Order of acquittal passed by the learned Judicial Magistrate, First Class, Murbad on 29th January, 1996 in R.C.C. No.

107 of 1988 acquitting respondent-accused from the charge of commission of offence punishable under Section 394 of Indian Penal Code.

2. Such of the facts regarding said prosecution and necessary for deciding the present proceeding are as under :-

2.1. On 9th June, 1988 by S.T. Bus at 6.15 p.m., Baban Dagadu, first informant (PW-5) resident of village Malhed, alongwith one

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Raghunath Krishna Pawar (PW-2) and Tukaram Pawar had been to Village Tondli for replacing tiles on the house of one Shri Babaji

Shankar. After finishing the said work, PW-5 alongwith his companion Bhaga Krishna (PW-3) returned to Murbad at about

6.50 p.m. by S.T. Bus. By another bus, from Murbad they went to Village Shivale. PW-5, while returning from the house of Babaji Shankar borrowed Rs.500/-. After reaching the village Shivale,

PW-3 proceeded to Village Malhed, while PW-5 went to the shop of one Shri Zunjarrao for purchasing the handkerchief. He purchased the handkerchief for Rs.6/- from borrowed money. The respondent-

accused then present saw PW-5 having such amount.

2.2. After purchasing handkerchief, PW-5 proceeded on foot for returning to his home. At about 9.30 p.m., he reached nearby

underground tunnel in between Village Ambele and Malhed. The respondent then suddenly came from rear side of PW-5 and demanded to hand over money and by assaulting on his head,

legs and hand with stick made him to fall down. He snatch away

Rs. 494/- kept by PW-3 at his waist in the couch of Dhoti. PW-5, sustained injuries on his head, hands and both the legs due to assault made and remained lying in the field of one Shri Tungar.

2.3 It appears that one Daji Shankar Pawar informed to brother of PW-5 i.e. to Police patil Mhadu Dagadu Pawar, PW-1 and others about PW-5 lying the field of Shri Tungar. PW-1 and other villagers

brought PW-5 to Murbad in a bullock-cart. PW-5 was initially taken to Murbad Police Station and thereafter as adviced to Murbad Hospital. On the next day, complaint (exhibit-35) of PW-5, narrating such matters was recorded by police Head Constable of Murbad Police Station and thereon crime no. 102 of 1988 for

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offence under Section 394 of Indian Penal Code was registered against the respondent at said police station. After due

investigation the respondent was charge-sheeted for commission of offence under Section 394 of Indian Penal Code by the said

police station.

3. The respondent pleaded not guilty to charge (exhibit-8)

framed against him for commission of offence under Section 394 of Indian Penal Code and claimed to be tried. The prosecution in addition to the above referred 4 witnesses examined PW-4 Dr.

Ramchandra Damodar Thombhare who had examined PW-5 on 10th June, 1995 and issued medical certificate (exhibit-29). The defence

of the respondent was that of total denial. The respondent during his examination under Section 313 of the Code of Criminal

Procedure stated that the prosecution evidence was false and all the material witnesses examined were relatives of the complainant and hence they have deposed falsely against him. He claimed that

Kisan son of PW-5 was also working along with him at the place of

Mangal Pandurang. As he did not report for the work and he asked about the same to PW-5, PW-5 was enraged due to the same and on suspicion he has involved him in the case.

4. After the assessment of the prosecution evidence in the light of the submissions advanced by the both the sides, the trial court came to the conclusion that the prosecution has not proved that

the respondent had voluntarily caused hurt to PW-5 by beating on his head, legs and hands with wooden stick and thereafter robbed from him Rs. 494/- on 9.6.1988 at 9.30 p.m. at Ambele Malhed Road. In consonance of the said finding arrived the trial court acquitted the respondent from the charge of commission of offence

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under Section 394 of Indian Penal Code.

5. Being aggrieved by the said Judgment and Order of acquittal, the State of Maharashtra sought the leave under Section 378(1) of

the Code of Criminal Procedure for preferring the present appeal and after grant of such a leave on 28 th January, 2000 the present appeal is registered.

6. Mrs. M.H. Mhatre, learned APP urged that the trial court manifestly erred in acquitting the respondent after coming to the

conclusion that the evidence of PW-5 has remained to be contradicted on behalf of the respondent and therefore it makes a

strong incrimination against the respondent. She urged that the reasoning given by the trial court for not accepting evidence of PW-

5 is primarily due to their being no corroboration to the same. She urged that the trial court erroneously came to such a conclusion on the basis of some discrepancies occurring in between the evidence

of PW-5 & PW-1, PW-2 & PW-3 who were admittedly not present at

the time of the incident. She urged that the trial court failed to take into account that PW-5 had immediately disclosed that the respondent was the assailant who had attacked and robbed him.

She urged that considering the prosecution evidence in proper perceptive the same squarely establishes the guilt of the respondent in commission of offence under section 394 of Indian Penal Code. She further urged that the said evidence does not

reveal that two views were possible upon the same and as such the trial court manifestly erred in giving benefit of doubt to the respondent and further erred in acquitting him for the charges levelled against him.

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7. None being present on behalf of the respondent at the hearing of the appeal, there was no advantage to hear the

submissions on behalf of him.

8. The careful perusal of Record and Proceedings and particularly the Judgment delivered by the trial court reveals that the trial court has duly taken into consideration all facets disclosed

from the evidence of PW-5. The same also reveals the trial court having observed as pointed out by learned APP that the evidence of PW-5 having been not contradicted by the respondent, the same

makes a strong incrimination against him. However, perusal of the matters recorded in paragraph nos. 7, 8 and 9 of Judgment reveals

that the trial court has come to the conclusion that the evidence of PW-1 to PW-3 is not of much assistance to the prosecution to

advanced the case as the same relates to the facets narrated to them by PW-5. Such a position is found to be correct after careful perusal of the evidence of said three witnesses. The same is

obvious as none of them was either along with PW-5 at the time of

the occurrence of the incident and later on they had been to the place at which PW-5 was lying.

9. Further more careful perusal of the evidence of PW-1 and that of PW-5 also supports the observation made by the trial court in paragraph no.8 of the judgment that though PW-1 had claimed that PW-5 was initially taken to Murbad Rural Hospital and from

said hospital he was shifted to Ulhasnagar Hospital and after remaining for 10-12 days at the said hospital was again shifted to Thane Hospital and at the said place he had remained for 10-12 days, no support to the latter part is found from the evidence of PW-5. The said observation appears to be in consonance with the

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record of the case as in the evidence PW-5 had not stated that he was admitted at Civil Hospital, Thane and had remained at the said

hospital for 10-12 days. Thus there appears to be glaring inconsistency regarding the said important aspect which could

never have been forgotten by PW-5 while deposing at trial.

10. Similarly, the observations made by trial court in paragraph

no.9 of judgment regarding the evidence of PW-2, Raghunath Krishna made by the trial court are also found in consonance with the evidence on record. The evidence of PW-2 Raghunath Krishna

significantly does not reveal that when he had been to see PW-5 on the spot, PW-5 did not disclose him the reason for which he was

beaten and what had happened with the money that he was then having. As rightly observed by the trial court the said vital factor

assumes much significance as PW-2 was amongst the persons who had been to the spot to see PW-5. Needless to add that the same will have also effect of affecting the evidence of PW-1 who had

made a contradictory claim of PW-5 having narrated him the

reason of attack being for extorting money from him.

11. Similarly, the observation made by the trial court in the said

paragraph that such position emerging from the evidence of PW-1, PW-2 and PW-3 also raises suspicion regarding the truthfulness of the complainant also cannot be said to be devoid of merit.

12. The perusal of the evidence of PW-3 in the light of the observations made by the trial court clearly reveals that the trial court has correctly assessed his evidence and come to the conclusion that claim stated by him of Babaji Shankar had given Rs. 500/- to PW-5 being an improvement made at the time of the

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trial. The same assumes importance as beyond the word of PW-5 there is absolutely no cogent evidence on record that at the

relevant time PW-5 was possessing Rs. 494/- i.e. after purchasing handkerchief for Rs.6/- out of Rs. 500/- allegedly taken by him from

Babaji Shankar. Significantly enough the evidence of the said Babaji Shankar was not adduced at the trial in support of the said facets. The present prosecution being for the offence under

Section 394 of Indian Penal Code amongst other facets it was necessary for the prosecution to establish by the cogent evidence that PW-5 was possessing the property which was allegedly robbed

from him. Needless to add that the evidence adduced at the trial does not reveal that any such stolen property was recovered during

the course of investigation. Thus it cannot be then said that any error was committed by the trial court in coming to the conclusion

that evidence of PW-3 is not of any significant assistance to the prosecution for establishing the charge against the respondent.

13. Even careful consideration of the evidence of PW-4 Dr.

Ramchandra Damodar reveals that the observations made by the trial court thereon are apparently justified. The said observation amongst the others reveal that at the most the said evidence was

helpful to the prosecution for establishing the nature of injuries caused to PW-5. The trial court by pinpointing the admission given by PW-4 to the effect that in event of wooden stick shown to him being used in the office then blood stains would have occurred on

the same after causing the injuries as sustained by PW-5 and no blood stains were found on the said wooden stick shown to him. As rightly observed his evidence knocks down the possibility of wooden stick produced on record was the weapon used for commission of the offence.

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14. Thus reappraisal of the entire evidence adduced on record

fully justifies the observations made by the trial court that due to the various facets emerging out of the evidence of PW-1, PW-2 and

PW-3 creates doubt regarding claim of PW-1. In view of the same the trial court though his evidence has remained to be contradicted on behalf of the respondent came to the conclusion of both the

views are possible upon his evidence and as such gave the benefit of doubt to the respondent. The said view taken by the trial court is a possible and plausible view and for the same correct reasoning

has been recorded by the trial court. The Judgment and Order passed by the trial court can be neither be said to be perverse nor

can be said not based upon evidence surfaced at the trial.

15. In the said state of affairs reference to the decision in a case of Arulvelu and Another v/s State (Represented by the Public Prosecutor and Another) (2009) 10 Supreme Court

Cases 206 reveal that therein the Apex Court after considering the

principal emerged regarding considering the appeal against acquittal right from the decision in a case of Sheo Swarup v/s. King Emperor (1933-34) 61 IA 398:AIR 1934 PC 227 (2); and

followed thereafter in number of decisions including Shambhoo Missir v/s. State of Bihar (1990) 4 SCC 17: 1990 SCC (Cri) 518; Chandrappa v/s. State of Karnataka (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325; Ghurey Lal v/s. State of U.P. (2008)

10 SCC 450: (2009) 1 SCC (Cri) 60 ; State of Rajasthan v/s. Naresh (2009) 9 SCC 368 : (2009) 3 SCC (Cri) 1069 : (2009) 11 Scale 699; State of U.P. v/s. Banne (2009) 4 SCC 271 : (2009) 2 SCC (Cri) 260 has come to the conclusion that in such state of affairs no interference with the Judgment and Order of

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acquittal recorded by the trial court is warranted.

16. Considering the present case upon the said principles there appears absolutely no merit in the present appeal and the same

deserves to be dismissed. Hence the same stands dismissed. The bail bond if any, entered by the respondent stands cancelled.

(P.D.KODE J.)