Narmadabai Kachru Kapse vs Trimbak Shankar Kapse & Ors
2016 Latest Caselaw 1093 Bom

                                                          Cri.Appeal No.463/2003
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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                  
                            CRIMINAL APPEAL NO.463 OF 2003




                                                 
     Sau. Narmadabai Kachru Kapse
     Age 45 years, Occ. Agriculture,
     Resident of Nagapur, Taluka Newasa,




                                         
     District Ahmednagar                ...   APPELLANT
                              ig  (Original Complainant)

              VERSUS
                            
     1.       Trimbak Shankar Kapse
              Age 63 years, Occ. agriculture      (Abated)

     2.       Babasaheb Trimbak Kapse
      


              Age 41 years, Occ. Agriculture
   



     3.       Digambar Trimbak Kapse
              Age 38 years, Occ. Agriculture

     4.       Dattatraya Trimbak Kapse





              Age 33 years, Occ. Agriculture

     5.       Sau. Bhamabai Trimbak Kapse
              Age 55 years, Occ. Agriculture

     6.       Sau. Shardabai Babasaheb Kapse





              Age 35 years, Occ. Agriculture

              All Resident of Nagapur, Taluka Newasa,
              District Ahmednagar

     7.       The State of Maharashtra
              (Copy to be served on the
              Public Prosecutor, High Court of
              Judicature of Bombay,
              Bench at Aurangabad)         ...    RESPONDENTS




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                                                              Cri.Appeal No.463/2003
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                                       .....
     Shri   Vasant Shelke, Advocate holding for
     Shri   V.H. Dighe, Advocate for appellant




                                                     
     Shri   A.M. Phule, A.P.P. for State
     Shri   C.K. Shinde, Advocate for respondent No.2 to 6
                                       .....




                                                    
                                   CORAM:       A.I.S. CHEEMA, J.

                                   DATED:       1st April, 2016.




                                        
     JUDGMENT :

1. This appeal by original complainant Narmadabai

Kapse has been filed against the acquittal of respondents -

original accused 1 to 6 under Sections 323, 506, 504 read with

Section 34 of the Indian Penal Code, 1860 (I.P.C. in brief). The

appeal was admitted on 18th June 2003. The respondent No.1

(original accused No.1 Trimbak Kapse) expired during pendency

of the appeal and appeal abated against him.

2. In brief, the case of prosecution is as follows :

Complainant filed Summary Trial Case No.343/1997

before the Judicial Magistrate, First Class, Newasa, claiming that

she and the accused have got fields adjoining at Nagapur, Taluka

Newasa. The incident occurred in Gat No.32 in the land owned

by the complainant. The accused have been troubling the

Cri.Appeal No.463/2003

complainant and her husband Kacharu to compel them to sell

land to the accused. There had been earlier complaints in 1993

and also on 21.3.1997. On 10.4.1997, the complainant and her

husband were working in their field, at which time the

respondent No.2 Babasaheb unlawfully brought his bullock cart in

the land of the complainant which was objected to by her

husband Kacharu (P.W.3). Getting angry, the respondent No.2

called out other accused, who came to the spot. Respondent

No.2, 3 and 4 had sticks in their hands and respondent No.1

instigated to kill Kacharu. Respondent No.2 tried to give stick

blow to Kacharu, which was obstructed by him by hand, due to

which the hand got injured. Respondent No.3 gave stick blow on

the back of complainant and respondent No.4 gave stick blow on

the thigh of husband of complainant. The complainant started

shouting, at which time respondent No.5 pulled hair of the

complainant and respondent No.6 gave kick blows to the

complainant. The complaint mentions names of various persons

who had gathered and intervened and separated the quarrel.

3. The trial Court recorded plea of the accused persons

and they pleaded not guilty. Thereafter evidence of complainant

Narmadabai was recorded as P.W.1. P.W.2 Ramdas was

examined as the panch of the spot. The husband Kacharu

Cri.Appeal No.463/2003

deposed as P.W.3. P.W.4 is Head Constable Dhondiram, who

investigated in the matter when directions were given under

Section 202 of the Code of Criminal Procedure by the Judicial

Magistrate, First Class, who filed his report.

4. Considering the evidence, the trial Court recorded all

the points for determination under Sections 323, 504 and 506 of

the Indian Penal Code in negative. The trial Court recorded that

the panch P.W.2 Ramdas is brother of the complainant and he

could not even tell the boundaries. It was noted that, P.W.1

complainant Narmada and P.W.3 Kacharu are the only witnesses

and the other witnesses have not been examined. The trial Court

did not find that there was cogent evidence. It was also noticed

that there was no medical evidence brought on record or any

evidence that P.W.1 and P.W.3 were examined medically. For

such reasons, the acquittal was recorded.

5. Learned counsel for the complainant has taken me

through the evidence and according to him, the judgment

recorded by the trial Court is not maintainable. It is argued that,

the judgment is perverse and speculative. The evidence of

complainant and her husband should have been accepted and the

accused should have been convicted.

Cri.Appeal No.463/2003

6. Per contra, the learned counsel for respondent -

original accused submitted that the incident is dated 10.4.1997.

The private complaint was filed on 11.4.1997. There is no

material brought of making complaint to the police station. The

complainant and her husband did not go to doctor and there is no

medical evidence. The panch examined was also real brother.

7. Going through the material available, it may be seen

that the complainant Narmadabai claimed that at the time of

incident, the accused No.1 threatened to kill her husband and

accused No.2 dealt a stick blow, which was warded of by her

husband. She deposed that, because of the blow, her husband

suffered injury to his right hand. However, there is no medical

evidence coming in support. In evidence, she claimed that

accused No.3 dealt stick blow on the back of her husband. In her

complaint, however, it was stated that accused No.3 had given a

stick blow on her back. In her verification statement, which was

recorded, she simply claimed that accused No.3 gave stick blow

to the back. In evidence, complainant claimed that, they had

gone to the police station after the incident and her husband

P.W.3 Kacharu lodged the complaint. Against this, her husband

P.W.3 Kacharu claimed that when they had gone to the police

Cri.Appeal No.463/2003

station, it was his wife who lodged the report. The cross-

examination of P.W.3 Kacharu shows that the accused had filed

one case before Tahsildar regarding entry in the field. The F.I.R.

also mentions that, earlier there were disputes. In such

background, it would be risky to convict the accused persons

without corroboration to the evidence of this couple. Not only

ocular corroboration is not coming forward, medical evidence is

also not found to be there.

8. As such, it would not be appropriate to interfere with

the judgment of acquittal recorded by the trial Court.

9. The Criminal Appeal is dismissed. Bail bonds of

respondent Nos.2 to 6 are cancelled. Their acquittal recorded by

the trial Court is confirmed.

( A.I.S. CHEEMA, J.)