Aba S/O Rajebhau Giri vs The State Of Maharashtra
2016 Latest Caselaw 4000 Bom

                                                        Criminal Appeal No.290/2015
                                              1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                                               
                                                       
                        CRIMINAL APPEAL NO.290 OF 2015



     Aba s/o Rajebhau Giri




                                                      
     Age 35 years, Occ. Labour,
     R/o Kendrewadi, Tq. Ambajogai,
     District Beed                                     ...   APPELLANT
                                                       (Orig. Accused)




                                         
              VERSUS

     The State of Maharashtra
                             
     through Assistant Superintendent
     of Police, Sub-Divisional Police
     Officer, Kaij, Tq. Kaij, Dist. Beed
                            
     (Copy to be served on the
     Public Prosecutor, High Court of
     Bombay, Bench at Aurangabad)                      ...      RESPONDENT
      

                        .....
     Shri P.P. Khandagale, Advocate for appellant
   



     Mrs. V.N. Patil (Jadhav), A.P.P. for respondent/ State
                        .....

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





                                     DATED:       20th July, 2016.

                      Date of reserving judgment : 1st July, 2016
                      Date of reserving judgment : 20th July, 2016.





     JUDGMENT:

1. The appellant - original accused (hereinafter referred

as "accused"), has been convicted by Additional Sessions Judge,

Majalgaon in Special Atrocities Case No.4/2012, on 3.2.2015 for

offence punishable under Sections 435, 323 and 504 of the

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Indian Penal Code, 1860 (I.P.C. in brief). He was charged with

offence punishable under Section 3(1)(x) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

also, however, he has been acquitted of the offence under that

Section. Thus this appeal against the conviction and sentence

passed.

2. The case of prosecution in short is as follows :

(a) On 30.11.2011, complainant Gopinath Tarkase

(P.W.2) (hereinafter referred as "complainant") filed

F.I.R. Crime No.119/2011 at Police Station, Dharur,

District Beed at 2.30 p.m. He complained that, on

that day, in the previous night at 00.15 Hrs., he was

sleeping with his family in Kotha in field Survey

no.159, which is Kendrewadi Shivar. At about 500

ft., there is residence of the accused. Accused came

to the complainant and called out to him if he has

slept. Complainant came out. At that time, accused

said that, he had told the complainant not to build

Kotha on the road, still, why did he construct Kotha

on the road. So saying, the accused abused

complainant calling him out as "Dhedgya, Mahardya"

and said that he will show him his value. After so

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saying, accused gave two slaps and one kick blow to

the complainant and immediately put fire to another

Kotha which had been built by the complainant by

use of match stick. When the Kotha started burning,

complainant started shouting and nearby residents

Dayawan Vitekar and Ramesh Pune came there and

saw the Kotha burning. By that time, the accused

had left. Complainant told those persons these facts

at that time itself that after burning his Kotha the

accused had left. The Kotha was constructed with

the help of Bamboos, sticks and grass. It burnt off in

10-15 minutes. As there was no water nearby,

complainant could not put out the fire. In the Kotha,

there was an old cycle, flexible pipe, one old dress

and in the dress Rs.4500/- as well as old note books

of children and two beddings. Articles worth

Rs.8000/- were destroyed. Thus, the complainant.

(b) Receiving complaint, as above, the offence came to

be registered. Investigation was taken up by

S.D.P.O., Kaij Shri Akhilesh Kumar Singh (P.W.6).

He went to the spot on 1.12.2011 at about 12.00 -

                       12.30       p.m.    and        did    panchanama             (Exh.22).

                       Statements          of        witnesses         were         recorded.

Complainant submitted his caste certificate which

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was collected by the police. Complainant claimed to

be "Mahar" by caste. Accused is stated to be of

"Gosavi" community. After investigation, charge

sheet came to be filed. The accused has been tried

for the sections mentioned above.

3. Prosecution brought on record evidence of 6

witnesses. The trial Court, after considering evidence, acquitted

the accused of the offence punishable under the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

For Sections 435, 323 and 504 of the IPC, however, he has been

convicted as mentioned above.

4. I have heard counsel for the appellant - accused and

the learned A.P.P. for State. It has been argued by the learned

counsel for the accused that, if the spot panchanama recorded in

the matter and the evidence of spot panch (P.W.1) Venkat is

read with the evidence of complainant, the evidence does not

match. According to the counsel, the complainant was

suppressing truth. It is stated that, the F.I.R. shows that, there

was dispute because the complainant dug up the road going from

Kendrewadi village to Sonawala and because of such dispute, the

complainant has brought about false case showing as if on the

spot there was some structure and which has been burnt down.

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It has been argued that, the F.I.R. does not show presence of

anybody else other than complainant on the spot when the

incident took place. However, in evidence, his wife was

introduced and although P.W.5 Dayawan is shown to have

reached the spot, he did not support the prosecution that

complainant told him anything about the accused at that time. It

is argued that, the medical certificate shows only one injury

which does not match with the evidence of the complainant.

There was also delay of 14 hours in filing of the F.I.R. Various

contradictions and omissions were proved, but still trial Court

wrongly accepted the evidence and convicted the accused.

5. Per contra, the learned A.P.P. submitted that, there is

consistent evidence of the witnesses and presence of the accused

on spot was proved. The cattle shed had been constructed in the

field near road. The accused claimed that it was on road and

thus, the incident took place. The A.P.P. supported the

conviction awarded by the trial Court.

6. Before discussing the oral evidence, regarding

incident, it would be appropriate to keep in view the spot where

incident is alleged to have taken place. P.W.1 Panch Venkat was

examined to prove the spot panchanama Exh.22. P.W.6 S.D.P.O.

Akhilesh has also deposed about recording of such spot

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panchanama. The panchanama Exh.22 also has a sketch as part

of it. The panchanama and the sketch show that the spot where

it is alleged that Kotha of the complainant was burnt, has

boundaries with land of complainant on east as well as on the

west. If the sketch is seen, in the north-west direction, at some

distance from the spot of occurrence, there is residential Kotha of

the complainant. Thus, the complainant appears to have land to

the east of the spot and on the western side in the north-west

direction, he had residential Kotha at some distance. Further,

away, on the western side, there appears to be land of Narayan

Kendre. According to the spot panchanama, where the

occurrence took place, towards north there is road going to

Sonawana and to the south there is road going to Kendrewadi

village. According to the evidence of complainant, from the spot

village Kendrewadi is 1 - 1 ½ Km. away. The spot panchanama

clearly mentions that, place of occurrence is in field Survey

No.159, on the road, going from the field and that it is near the

Kotha of complainant. On the spot, what was stated to be Kotha

of the complainant, at the time of panchanama there were some

burnt wood pieces. It is stated that, roof of grass had burnt

down. There were some half burnt big pieces of wood lying on

the spot. There was a burnt cycle there, as well as burnt school

books. Nothing was seized from the spot.

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7. Keeping above spot panchanama in view, if the

evidence of P.W.1 Venkat is seen, it clearly shows that, the spot

was of Kendrewadi Sonawala road and the complainant had dug

one pit on the said road. The witness accepted that at the place

of occurrence there was neither house nor cattle shed. According

to this panch, the cattle shed and the house of complainant was

50 ft. away from the spot. Although complainant P.W.2 Gopinath

did not admit the suggestion that his cattle shed was 50 ft. away

from the Kendrewadi Sonawala road, he did admit that his cattle

shed was not on the said road. Keeping this in view, if the spot

is appreciated, what appears is that, Kendrewadi Sonawala Road

has gone from the field of complainant. It appears, he dug up a

pit across the road and at the time of recording of spot

panchanama, showed police burnt cycle, wooden pieces and

other articles like note books to the north of such pit claiming

that at that place he had a Kotha which was burnt down by the

accused. If the F.I.R. is read carefully, (which I have referred

above), it shows the complainant claiming that, in the night

concerned, he was sleeping in his Kotha constructed in the field

and after interaction with the accused, according to F.I.R., the

accused burnt "Dusra" i.e. "other" Kotha which he had

constructed.

8. Now, proceeding to consider the oral evidence of

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complainant and his wife, what appears is that, the complainant

claimed that he was residing in his field erecting a cattle shed.

He claimed that, he was sleeping in his house which is in the field

and at that time, the accused came and asked him why he

erected cattle shed on the road. This led the accused abusing

him on the caste, it is claimed. Then the complainant claimed

that, the accused gave him kicks as well as hit him by stick on

his back and also slapped him. His evidence is that, the accused

then removed match box from his pocket and set on fire his

cattle shed. Thereafter he and his wife shouted attracting

adjacent land holders Dayawan Vitekar and one Ramesh.

Complainant deposed that, seeing those persons, the accused

ran away.

9. If this evidence is appreciated, in plain words, what

the complainant deposed was that, he was residing in his field

erecting a cattle shed in his field and accused came and abused

and beat him and put the cattle shed to fire. There is no

reference to other Kotha, which has been referred in the F.I.R. If

the evidence of P.W.4 Sunita, the wife of complainant is seen,

she claimed that, she along with her husband and son were

sleeping in their cattle shed which is in the field, and her

evidence is that, the accused came and called out to her

husband. Her evidence is that, the accused beat her husband by

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kick blows as well as fist blows and abused on caste asking why

the cattle shed was on the place of road. She then deposed that,

the accused took a match box and set the cattle shed on fire.

She also claimed that, the adjacent land holders Dayawan and

Ramesh came after they shouted. Thus, in oral evidence, this

husband and wife have tried to show that, they have constructed

a Kotha or cattle shed in their field where they were living and

the accused came and quarreled and put the same on fire. This,

however is not correct if the evidence of spot, as discussed

above, is seen. Case of prosecution brought was that, when

P.W.2 and P.W.4 shouted, P.W.5 Dayawan and one Ramesh

reached the spot and complainant told them that accused has

burnt his Kotha, however, at that time of oral evidence, P.W.5

Dayawan, who was examined, supported the prosecution to the

limited extent that, in the night concerned, the incident of fire

took place. This witness deposed that, in the said night, the

complainant came to his house and therefore, he woke up. The

complainant told him that, his cattle shed is burnt. He deposed

that, he went there and noticed that, only 2-3 wooden pieces

were burning. This witness was declared hostile and was

confronted with his police statement, which he declined and

which has been marked Exh.32. In the cross-examination by

accused of this P.W.5 Dayawan, he stated that, the cattle shed of

the complainant was rather 50 ft. away from Kendrewadi

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Sonawala Road and that the complainant had dug a pit on the

said road. His evidence is that, there was no cattle shed of the

complainant on the road. Even if it was to be said that, P.W.5

was a hostile witness, still these facts are stated also by P.W.1

Panch Venkat, who is witness of the prosecution, who, in spite of

his evidence in cross-examination, was not declared hostile by

the State. He has also stated, as mentioned, that, the cattle

shed and house of the complainant was 50 ft. away and on the

spot, there was neither house nor cattle shed.

10. In the cross-examination of the complainant, various

omissions were brought on record reading his evidence with the

F.I.R. Exh.25, which he had filed. Complainant accepted that, he

had not mentioned in his report:-

(a) that he told accused that he had not erected cattle

shed on the road;

(b) that, the accused beat him by means of stick on his

back;

(c) that, at the time of incident, his wife also shouted

loudly;

(d) that, seeing Dayawan and Ramesh coming, the

accused had run away and

(e) that, after incident, he had gone to Kendrewadi to tell

about the incident to people.

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11. Reading the evidence, what appears is that, the

complainant dug up the road going from his field which went

North-South, by making a "Khud" East to West and in front of

that "Khud" on the northern side, he showed police that there

was Kotha, which has been burnt. In evidence, P.W.2 and P.W.4

did not claim that their residential house or Kotha was different

and the Kotha which was burnt, was different and what was

burnt and shown to police were some pieces of logs, old cycle,

old text books with further claim that, there was one dress in

Kotha with Rs.4500/- which was burnt. It is little difficult to

accept that when from alleged spot of occurrence complainant

has a residential Kotha at 50 ft., he would, along with other old

articles, leave a shirt hanging with Rs.4500/- in other Kotha. The

evidence of complainant is not inspiring confidence.

12. Looking to the omissions referred of the complainant,

which show exaggeration, there is further material to show that it

would be risky to rely on such complainant and his wife. In the

F.I.R. Exh.25, he claimed that, at the time of incident, the

accused gave him two slaps and one kick blow and then suddenly

put the Kotha to fire. In evidence, however, the complainant

claimed that the accused beat him by kicks (See Marathi portion)

as well as by means of stick on his back and also gave him one

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slap. Thus, although in the F.I.R. there is no mention of accused

beating the complainant by stick, in evidence, this was

introduced. P.W.4 Sunita went ahead to add that, the accused

beat her husband not only by kicks but also by fist blows. She,

however, did not say that, her husband was beaten with the help

of stick. If the evidence of P.W.3 Dr. Balasaheb is seen, he did

not find so many injuries on the person of complainant, but

noticed only one contusion 2 x 1 cm. over his back on left

scapular region, which was possible by hard and blunt object.

Thus seen, it cannot be said that the oral evidence regarding

incident and the medical evidence match.

13. The learned counsel for the appellant - accused has

rightly argued that, in this matter there is delay in filing of the

F.I.R. and the same has not been explained. The complainant

P.W.2 claimed the incident to have occurred at 00.15 Hrs. of

30.11.2011. This would be night between 29 th and 30th

November 2011. The F.I.R., however, was registered only at

2.30 p.m. on 30.11.2011. Although the complainant deposed

that, after the incident he went to the Kendrewadi village and

told people about the incident and claimed that, thereafter he

went to Police Station, Dharur, why there was delay till 2.30 p.m.

is not clear. Again if the F.I.R. had been registered at 2.30 p.m.,

P.W.6 Akhilesh Kumar went to prepare the spot panchanama

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only in the afternoon of 1.12.2011. The cross-examination of

complainant shows that, Kendrewadi comes in the jurisdiction of

Outpost of Adur, which is hardly 4-5 Kms. from Kendrewadi.

Looking to all these aspects, I find it risky to rely on the bare

testimony of the complainant and his wife to convict the accused.

In oral evidence, the complainant did not claim that when

Dayawan and Ramesh came to the spot, he told them about what

the accused had done. His wife P.W.4 also does not say so.

Thus, what is claimed in F.I.R. that the complainant immediately

told people about the incident, cannot be said to have been

established. Although the spot panchanama shows that, at some

distance from the place of occurrence the complainant had

residential Kotha, in evidence, complainant conveniently claimed

that, there was no water nearby and so no effort was made to

put out the fire, which had been put to the another Kotha. I find

it risky to rely on the complainant and his wife.

14. I have gone through the judgment of the trial Court.

The Trial Court simply picked up the evidence witness-wise and

accepted the evidence, instead of making comparative analysis of

the spot as well as various witnesses and if the claim of the

complainant was reasonably possible. Thus, I do not concur with

the trial Court that the accused deserves to be convicted.

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15. For the above reasons, the appeal is allowed. The

conviction of the appellant - accused under Sections 435, 323

and 504 of the Indian Penal Code, 1860, as imposed by the trial

Court is quashed and set aside.

The appellant-accused is acquitted of the offences

punishable under Sections 435, 323 and 504 of the Indian Penal

Code, 1860. The appellant-accused be set at liberty forthwith

unless his presence is required in any other offence. Fine, if

paid, be refunded to him.

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