Bombay High Court
Sudhakar Pralhad Kulkarni vs Suresh Baburao Talekar & Anr on 12 April, 2016
Bench: A.I.S. Cheema
Cri.Appeal No.806/2003
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.806 OF 2003
Sudhakar s/o Pralhad Kulkarni
Age 63 years, Occ. Now Retired,
R/o Gaikwad Colony,
Ahmednagar ... APPELLANT
(Original Complainant)
VERSUS
1. Suresh s/o Baburao Talekar,
Age 38 years, Occ. Service,
R/o Saikrupa Colony,
H. No. 45/1, Sahakar Nagar,
Ahmednagar.
2. State of Maharashtra
(Copy to be served on the
A.P.P., High Court of Bombay,
Bench at Aurangabad) ... RESPONDENTS
(No.1 Original Accused)
.....
Shri P.B. Shirsath, Advocate for appellant
Shri P.N. Kutti, A.P.P. for State
Shri V.S. Bedre, Advocate for respondent No.1
.....
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Cri.Appeal No.806/2003
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CORAM: A.I.S. CHEEMA, J.
DATED: 12th April, 2016.
Date of reserving judgment : 4th April 2016.
Date of pronouncing judgment: 12th April 2016.
JUDGMENT:
1. This is appeal against acquittal, which has been
admitted to the extent of offence under Section 323 of the Indian
Penal Code, 1860 (I.P.C. in brief) only. The appellant -
original complainant has claimed that he filed R.C.C.
No.158/2000 in the Court of Chief Judicial Magistrate,
Ahmednagar. According to him, the respondent No.1
Suresh Baburao Talekar - original accused (hereinafter
referred as accused) voluntarily caused hurt to him and also
provocatively insulted and committed criminal intimidation
by threatening to kill. The incident occurred on 6.5.2000.
The complainant was going on his moped and came near
Hotel Oberoi at Ahmednagar, where when he was waiting to
take turn, the accused came from behind on motorcycle and
Cri.Appeal No.806/2003
dashed it against the moped of complainant. The accused
verified identity of complainant and claimed that the
complainant had failed his son and for such reasons, beat
the complainant. The complainant filed complaint in the
Police Station, which was registered as N.C. No.267/2000.
The complainant was also medically examined. He later on
filed the private complaint. Initially, evidence before charge
was recorded and thereafter charge was framed under
Sections 323, 504 and 506 Part II of the Indian Penal Code.
Trial Court, after conducting the trial, acquitted the accused.
The evidence of P.W.4 - Shriniwas Shirsagar was discarded
on the basis that he was Peon in the school of which the
complainant was Secretary. Another ground raised is that,
the medical evidence of P.W.2 Dr. Rajendra and P.W.5 Dr.
Vishnu was discarded on the basis that it was not proved
that the injuries were direct result of the assault by the
accused. The certified copy of N.C. was wrongly ignored on
the basis that the original N.C. register was not called.
Taking exception to such reasonings recorded by the trial
Court, this appeal was filed against the acquittal.
Cri.Appeal No.806/2003
2. I have heard learned counsel for the appellant
and the learned counsel for respondent - accused.
3. It is argued for the appellant that, the appellant -
complainant was Professor in Sarda College, Ahmednagar
and was Secretary
ig of the Vidya Prasarak Mandal,
Ahmednagar. On the day of incident, the accused took up
the quarrel with the complainant, claiming that his son had
been failed by the complainant and for such reasons, fought
with the complainant, causing him injuries. A crowd had
gathered on the road near Hotel Oberoi and P.W.3 Prashant
and eye witness and P.W. Shriniwas Shirsagar, the Peon
from the school where complainant is Secretary, happened
to be there in the crowd and they rescued the complainant
from the accused. There was medical evidence, brought on
record by examining P.W.2 Dr. Rajendra and P.W.5 Dr.
Vishnu Yadkikar. It is argued that, the trial Court wrongly
ignored the N.C. report, certified copy of which had been
filed on the reasoning that original of the register was not
Cri.Appeal No.806/2003
called from police station. According to the learned counsel
for the complainant, there was sufficient evidence to hold
the accused guilty for offence under Section 323 of the
Indian Penal Code.
4. Against this, the learned counsel for the accused
has submitted that, there were various contradictions and
omissions in the evidence and the trial Court has rightly
acquitted the accused. Although crowd had allegedly
gathered, only P.W.3, who is friend of the complainant and
P.W.4, who is Peon in the school where complainant is
Secretary, have been examined and they are interested
witnesses. The certified copy of N.C. was not tendered in
evidence although copy had been filed. For such reasons,
the counsel for accused claimed that the acquittal is proper
and needs to be maintained.
5. This appeal is against acquittal. When judgment
of acquittal has been recorded by the trial Court after
recording evidence, the presumption of innocence of
Cri.Appeal No.806/2003
accused being innocent till found guilty gets emboldened.
With the help of counsel for both sides, I have gone through
the oral evidence as well as the judgment of the trial Court.
If the judgment of the trial Court is seen, the trial Court
referred to the evidence of complainant Sudhakar and for
corroboration, referred to the other evidence. It found that,
there were various discrepancies in the oral evidence. The
trial Court has noted :-
(i) That, P.W.1 Sudhakar deposed that nobody rescued
him while P.W.3 Prashant had deposed that he tried to
rescue the quarrel.
(ii) P.W.4 Shriniwas Shirsagar stated that he was on the
spot for 1 1/2 hour, whereas, according to the trial
Court, the incident was in narrow compass;
(iii) P.W.4 Shriniwas deserved to be disbelieved as he was
serving in the same school where the complainant was
Secretary and so according to the trial Court, the
evidence adduced appeared to be concocted.
(iv) Referring to the evidence of doctors, the trial Court
Cri.Appeal No.806/2003
found that, although injuries were mentioned by the
doctors, it did not mean that it was direct result of the
assault.
(v) Although certified copy of N.C. is produced, original
N.C. register is not called from the police station to
prove the F.I.R. and merely bringing certified copy is
not enough.
(vi) The incident took place on 6.5.2000 and private
complaint is filed on 17.6.2000, which is after more
than one month and there is inordinate delay.
6. For such reasons, the trial court recorded the
judgment of acquittal.
7. Going through the evidence which has been
brought, I also find that there are material contradictions
and omissions and on the basis of evidence brought, it
would be risky to convict the accused. I make brief
reference to such contradictions, omissions etc.
Cri.Appeal No.806/2003
(a) The complaint (Exh. 1) filed by the complainant
claims that the complainant, on 6.5.2000, at about 11.30
a.m., was proceeding towards his house and came near
Oberoi Hotel, where he had to take a turn and had stopped,
at which time, the accused came on motorcycle from behind
and the front wheel of the motorcycle was with force, kept
pushed against the rear wheel of his moped and when
complainant turned back, accused asked if he was S.P.
Kulkarni and when the complainant said "Yes", accused
gave a severe slap on the back of complainant, because of
which he fell down.
Against this, in the verification recorded by the
complainant below the complaint, he claimed that, the
accused came from behind and asked if he was S.P.
Kulkarni and when he said "Yes", suddenly started beating
him. In the verification, no claim is made that the
motorcycle was pressed against the moped. In his
evidence, complainant deposed that, when he was taking
turn, one motorcycle came from behind and given a "dash"
Cri.Appeal No.806/2003
to his moped from the back side and because of that dash,
he fell down. Further, what was claimed in the complaint as
a slap on the back by the accused, was converted into a fist
blow at the time of evidence.
(b) In the complaint, complainant claimed that, at
the time of incident, the injuries inflicted were:
(1) Accused gave severe slap on his back;
(2) Accused caught him by his neck and made
him to stand;
(3) Gave fist blows in his stomach;
(4) Fist blows on his chest; and
(5) Gave severe fight on his left cheek near left
ear.
(6) The person who was with accused, beat
complainant on his back and
(7) That person gave kick blows to the
complainant.
(c) In verification statement below the complaint,
Cri.Appeal No.806/2003
the complainant had claimed that, when the accused came
on motorcycle from behind, after verifying name of
complainant, he started beating him. Details given were
that :
(i) The accused gave fist blows on chest,
(ii) Fist blow on stomach,
(iii) Gave a fight near left ear,
(iv) The person with accused boxed back of complainant
and gave kick blow.
(d) In oral evidence, the complainant claimed that, after
the accused came behind on motorcycle and dashed
the motorcycle, he fell down and thereafter :-
(i) Accused gave fist blow on his back.
(ii) held his collar and made him to stand up and
abused him.
(iii) Gave fist blows on his chest.
(iv) Fist blow on his abdomen, and
(v) Gave slap on left cheek.
Cri.Appeal No.806/2003
(e) In oral evidence, complainant did not claim that
the other person was there with accused and that the other
person also boxed or kicked him. His witness P.W.4
Shriniwas Shirsagar, Peon, however, has deposed that,
there were two persons who were beating the complainant.
Thus, there is no consistency in the evidence.
(f)
Although the complainant counted various blows
given to him, when he had gone to the hospital taking Police
Yadi on 6.5.2000, P.W.2 Dr. Rajendra examined him and
there were only two injuries shown to the doctor at that
time. They were :-
(i) Linear abrasion on chest 8 cm. x 1 cm.
(ii) Abrasion on back, right side 1 cm x 5 cm.
The injuries were recorded as simple and possible
by hard and rough object. Such injuries are not possible by
slap can be seen from evidence of doctor. Realising this in
the evidence of doctor, it was brought on record that the
injuries were possible due to nail touch when fight blow is
Cri.Appeal No.806/2003
given. It is not necessary that only because the doctor has
said "Yes", the opinion should be blindly accepted. The oral
evidence of incident is of either giving slap or fist blows on
the back and fist blows on the chest. When a fist blow is
given, ordinarily the thumb and fingers are folded. There is
no evidence that the fist was so formed that nail would
protrude and come into contact.
ig Again it is not the case
that the first blows were given after the upper clothes of the
complainant were removed. When the upper clothes are on
the person, even if fist blows are given, how linear abrasion
and abrasion would be found is a matter of consideration.
The number of injuries claimed by the complainant also do
not match with this medical certificate.
(g) The other evidence is of Dr. Vishnu (P.W.5), to
whom the complainant went after six days of the incident
and who has deposed that the complainant had traumatic
haematoma with contusion on chest wall. This doctor was
not shown any other injuries.
Cri.Appeal No.806/2003
(h) In the complaint, the complainant had claimed
that he had Rs.5000/- in his pocket before the incident
occurred. In oral evidence, he claimed that he lost that
amount in the incident. However, there is nothing to show
that he reported the loss of such amount.
(i) In oral evidence, the complainant further exaggerated
to claim that there was bluish injury to his eyes and he took
treatment from Dr. Sudrik. Such alleged injury to the eye
was not claimed in the complaint filed by him although it
was claimed that fight was given on the left cheek near the
ear.
(j) P.W.3 Prashant Kulkarni examined by the complainant,
in his examination-in-chief claimed that the accused came
on motorcycle from behind and dashed the motorcycle
against Sunny Moped of the complainant, causing him to fall
and thereafter the accused gave fist blows on the back of
complainant, and on his stomach. Although this evidence
referred to the presence of another accused with the
Cri.Appeal No.806/2003
accused, this witness did not attribute any acts of assault by
that person to the complainant. P.W.3 admitted that he
was friend of complainant. His cross-examination shows
that, when he went to the spot, there was "scuffle" going on
between the complainant and the accused. He further
deposed that, at the concerned time, "pushing to each other
was going on". ig No such thing has been claimed by the
complainant that for saving himself he went into scuffle with
the accused. The complainant deposed as if it was a one-
sided attack by the accused and he was only asking as to
why the accused was beating him and that the accused
gave reason of complainant failing his son. The cross-
examination of P.W.3 shows that there was actually a
scuffle and pushing around between the complainant and
the accused. The details and genesis of the incident are
thus not clear.
(k) The Peon of complainant P.W.4 Shriniwas
Shirsagar has deposed to favour the complainant. He
claims that, when he saw, there was already a crowd
Cri.Appeal No.806/2003
gathered at the spot and he deposed that accused beat
complainant on his stomach and back by fist blows and that
accused gave one slap on the face of complainant.
According to this witness, there were two persons who were
beating the complainant.
8. Looking to the above discussion, I find that there
are various contradictions and omissions. The medical
evidence does not fit in with the details of the incident as
claimed by the complainant. If the complainant was to be
believed, there would have been much more injuries than
the two abrasions recorded in medical certificate (Exh.30)
by P.W.2 Dr. Rajendra. Although the certified copy of N.C.
was filed in the Court, the same was not tendered in
evidence by the complainant or by calling any police
witness. Even if I ignore the reasoning of the trial Court
that in spite of certified copy original register must
necessarily be called, still in the absence of tendering of the
certified copy in evidence by witness, only because with
other documents a certified copy has been tagged, does not
Cri.Appeal No.806/2003
mean that the accused gets notice that the prosecution
wants to rely on it. It is necessary to tender the certified
copy in evidence when the question of its admissibility could
be considered and the accused gets opportunity to question
the same. The fact remains that without going into such
procedure, it has to be held that first version which was
given to the police has not come on record and the private
complaint filed is more than one month after the incident
and thus, there has been a delay.
9. For above reasons, I do not find any reason to
interfere with the acquittal recorded by the trial Court in this
appeal which was admitted on 9.12.2003.
10. I decline to interfere with the judgment and order
of acquittal. There is no substance in the appeal. The
appeal is dismissed.
(A.I.S. CHEEMA, J.)
fmp/cri806.03
