The State Of Maharashtra vs Namdev Babu Nikam And Others
2016 Latest Caselaw 1570 Bom

                                                         OJ APPEAL 719 OF 1998.doc




                                                                                 
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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION




                                                         
                                 CRIMINAL APPEAL NO.719 OF 1998




                                                        
          The State of Maharashtra                              ]
          (Through Vaduj Police Station, Vaduj,                 ] .... Appellant
          District: Satara.                                     ] Ori. Complainant




                                               
                    V/s.

          1. Namdev Baba Nikam
             age: 45 years
                                     ig                         ]
                                                                ]
                                                                ]
          2. Shivaji Abaji Deshmukh                             ]
                                   
             Age: 55 years,                                     ]
                                                                ]
          3. Jaywant Tatyasaheb Deshmukh                        ] ... Respondents
             age: 45 years,                                     ] Original accused.
            

                                                                ]
          4. Sou. Janabi Namdeo Nikam                           ]
         



             Age: 35 years,                                     ]
                                                                ]
           All are r/o Autawadi, Tal. Khatav.                   ]
           Dist. Satara.                                        ]





                 .

          Mr. Shrikant Yadav, APP, for the Appellant-State.
          Mr. Viral K. Rathod I/by Harshad E. Palwe, for respondent No.1.





                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE    : 16th APRIL, 2016.










                                                      OJ APPEAL 719 OF 1998.doc




                                                                             
    ORAL JUDGMENT. :




                                                     

1. The State has preferred this appeal challenging the acquittal

of respondents, for the offences punishable under Sections 143, 147, 148,

325,324, 504, 506 of the Indian Penal Code read with Section 37(1) (c),

135 of the Bombay Police Act, as recorded by the Judicial Magistrate First

Class, Vaduj, vide his judgment and order dated 20.3.1998 in R.C.C.

No.114 of 1995.

2. Brief facts of the appeal can be stated as follows :-

P.W.1. Lilabai, her husband P.W.2 Sahibrao and her brother-

in-law -Sadashiv are the residents of village Autawadi. Respondents

herein are also the residents of same village. On account of dispute

relating to boundaries of their lands and access to the road, the relations

between them were strained. Criminal Case was also filed against P.W.1

Lilabai and her husband Sahibrao by respondent No.1.

3. In this backdrop, quarrel took place on 6.9.1995 between

them, again in respect of said dispute. After the quarrel, P.W.2 Sahibrao

and his brother Sadashiv went to Mayani police station for lodging

complaint against respondents. They returned to the house at 11.p.m.

After taking dinner in the house, P.W.2 Sahibrao went outside to wash his

hands. At that time, respondent No. 1 Namdeo came there and scolded

OJ APPEAL 719 OF 1998.doc

him and gave blow of stick on the head of Sahibrao. Respondent No.1

Namdeo also confronted P.W.2 Sahibrao as to why he had been Mayani

to lodge complaint. When P.W.2 Sahibrao's brother Sadashiv and his wife

P.W.1 Lilabai came to intervene. They were also assaulted with stick by

respondent Nos 2, 3 and 4. As a result of the assault, P.W.1 Sahebrao

sustained bleeding injury on his head. His wife P.W.1 Lilabai and brother

Sadashiv also sustained injuries in that assault. On the next day, they

went to police station. On the complaint of P.W.1 Lilabai (Exh.22), offence

came to be registered against the respondents. All the three injured were

referred to Primary Health Centre, Mayani. P.W.3 Dr. Pawar examined

and issued injury certificate.

4. During the course of investigation, the weapons of assault

four sticks produced by respondents came to be seized under

panchnama. Respondents were arrested and further to completion of

investigation, chargesheet was filed in the trial Court against them.

5. The trial Court framed charge against respondents vide

Exh.12. Respondents pleaded not guilty and claimed trial. In support of its

case, prosecution examined in all four witnesses, viz. 1) P.W.1 Lilabai,

P.W.2 Sahibrao. P.W.3 Dr. Pawar and P.W.4 panch witness Mathura

Shinde, who has not supported the prosecution case and hence

declared hostile.

OJ APPEAL 719 OF 1998.doc

6. On appreciation of their evidence, the trial Court found

several inconsistencies and discrepancies in the evidence of eye witness

and medical evidence and as a result thereof extended benefit of doubt to

the respondents and acquitted them.

7. This judgment of the trial Court is challenged in this appeal by

learned APP by submitting that evidence of injured witnesses in the

present case gets complete support and corroboration from the medical

evidence and hence the trial Court has committed an error in acquitting

respondents by giving them the benefit of doubt.

8. On the contrary, learned counsel for respondents has

supported the impugned judgment of the trial Court, by pointing out

interse inconsistencies between evidence of injured witnesses and also

medical evidence.

9. In the instant case, it is admitted fact that the relations

between the injured witnesses and respondents were not cordial,

conversely they were strained on account of disputes relating to the

boundary of the lands and access to the road. Complaints were filed

against each other. On the date of incident also, in respect of quarrel that

took place regarding dispute relating to road, P.W.2 Sahibrao and his

brother Sadashiv had gone to Mayani police station for lodging the

complaint.

OJ APPEAL 719 OF 1998.doc

10. In the backdrop of this enmity between parties, it is necessary

to scrutinize the evidence of these witnesses who are injured in the

incident and are closely related, with care and caution. Except for the

evidence of P.W.1 Lilabai and her husband P.W.2 Sahibrao prosecution

has not examined any other independent witness though the incident has

taken place in thick residential locality with surrounding houses nearby.

The prosecution has also failed to examine the injured Sadashiv who was

material witness to corroborate the evidence of P.W.1 Lilabai and P.W. 2

Sahibrao. As per evidence of these two witnesses, after the incident, they

had gone to the house of Raghunath. He is also not examined by

prosecution to prove that in the incident, these witnesses had sustained

injuries and as to what was their immediate version about occurrence of

the incident.

11. As observed by the trial Court, there are interse

inconsistencies in the evidence of P.W.1 Lilabai and her husband P.W.2

Sahibrao. According to P.W.1 Lilabai, her husband Sahibrao has received

only one stick blow which has resulted in the bleeding injury on the head

of her husband. P.W.2 Sahibrao has also not stated about any further

blows at the hands of respondents. However, the evidence of P.W.3 Dr.

Pawar, reveals that there were in all three injuries on the person of

Sahibrao, one was over occipital parietal region, the other was over left

OJ APPEAL 719 OF 1998.doc

lumber region on backside of size 2" x ½" and the third was diffuse

swelling over the right middle 1/3 forearm. No explanation is offered about

these injuries Nos. 2 and 3 as to how they were sustained.

12. Further, according to evidence of P.W.1 Lilabai, when she

went to rescue her husband, respondent No.2 Shivaji assaulted her and

hence she sustained injuries on her both hands; whereas her brother-in-

law Sadashiv was assaulted by juvenile accused Chandrakant and

respondent No.4 Janabai.

ig However, according to evidence of P.W. 2

Sahibrao, respondent No.2 gave blow of stick on her left hand and

respondent No.4 gave blow of stick on forefinger his brother Sadashiv.

The trial Court found that this material version in respect of the incident

and the cause of injuries sustained by these two witnesses is not fully

supported and corroborated from the medical evidence as discussed

above.

13. None of the witness has stated about the respondent No.2

Shivaji assaulting P.W.1 Lilabai with sticks. The seizure of the sticks from

the possession of respondents or at their instance is also not proved, as

panch witness has not supported the prosecution case and prosecution

has failed to examine the Investigating Officer. The alleged blood

stained clothes of the witnesses are also not seized in the course of

investigation. According to P.W. 3 Dr. Pawar, when he examined P.W.2

OJ APPEAL 719 OF 1998.doc

Sahibrao, there was no blood oozing from the injury.

14. In view of these lacunas and considering enemical relations

between the parties, non examination of any independent witness and

having regard to the inconsistencies and the oral version of the injured

witnesses and medical evidence, it cannot be said that the judgment of

trial Court suffers from any illegality, much less perversity, so as to warrant

interference therein. The view adopted by the trial Court of extending the

benefit of doubt to the respondents being an equally possible view on the

assessment of entire evidence on record, the appeal needs to be

dismissed and accordingly stands dismissed.

[DR. SHALINI PHANSALKAR-JOSHI, J.]