Bombay High Court
The State Of Maharashtra vs Mahendra Shivaji Gadekar And Ors on 25 July, 2016
Bench: V.K. Tahilramani
apeal_161_2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.161 of 2008
The State of Maharashtra
through Koregaon Police Station,
Taluka Koregaon, District: Satara)
...Appellant
Versus
1. Mahendra Shivaji Gadekar,
Age 21 years.
2. Prashant Krishna Javal,
Age 18 years.
3. Pandharinath Dadu Yadav,
Age 43 years.
4. Shankar Dadu Yadav,
Age 46 years.
5. Sambhaji Dadu Yadav,
Age 20 years.
All resident of Durgalwadi, Taluka- ...Respondents
Koregaon, District-Satara. (Original accused Nos.1 to 5)
.....
Mr. H.J. Dedia, APP for the Appellant -State.
Mr. Dhananjay Rananaware for Respondent Nos.1 to 5.
Coram :SMT. V.K. TAHILRAMANI &
SMT. ANUJA PRABHUDESSAI, JJ.
JUDGMENT RESERVED ON : 30th March, 2016.
JUDGMENT PRONOUNCED ON: 25th July, 2016.
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JUDGMENT [PER SMT. ANUJA PRABHUDESSAI, J.]:
This appeal arises from judgment dated 29.12.2006 whereby
the learned Additional Sessions Judge, Satara, acquitted the respondents
(hereinafter referred to as accused) in Sessions Case No.66 of 2002 of
offences punishable under sections 143, 147, 148, 323, 324, 307, 504 and
506 r/w. 149 of the IPC.
2.
The case of the prosecution in short is as under:
The complainant-Mohan Sathe and the other injured persons
are the residents of Durgalwadi. The accused no. 1 is alleged to have
made some indecent comments on seeing the sister of PW5 Rajendra. The
accused no. 1 had also called her to the house of one Vijay. PW5 had told
the mother of the accused no.1 to persuade him not to interfere with his
sister. Irked by this, on 18.11.1997 at about 8 to 8.15 p.m. the accused
Nos.1 and 2 assaulted PW-5 Rajendra Chavan and Sambhaji Sathe. Again
on 19.11.1997 at about 9 to 9.30 p.m. while PW-5 Rajendra and Sambhaji
Sathe were having a wash in the paddy field, the accused Nos.1 and 5
assaulted them with a cycle chain and sticks. The accused No.3
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Pandharinath Yadav, accused No.4 Shankar Yadav and accused No.5
Sambhaji Yadav and Manik (deceased) also came to the paddy field.
PW5-Rajendra Chavan and Sambhaji Sathe ran towards the house of
Hanmant Desai. It is alleged that all the accused followed them and
assaulted them with sticks, cycle chain, gupti, etc. On hearing their shouts
PW4-Mohan Sathe came to the place of the incident with a loaded gun. It
is alleged that the accused Nos.3 Pandharinath Yadav and accused No.4-
Shankar Yadav assaulted PW-4 Mohan Sathe and as a result, he fell down
with the gun. The accused No.4-Shankar Yadav tried to snatch the gun
from his hand and in the course of a scuffle, the gun discharged
accidentally. The accused No.4 Shankar Yadav thereafter left the gun and
all the other accused went away from the place of the incident.
3. PW4-Mohan Sathe went to Rahimatpur police station and
lodged the FIR at Exh.71-A, pursuant to which PW9-ASI Maruti Ghadhge,
registered C.R. No.54 of 1997. The injured were referred to the civil
hospital for medical examination. PW-3 Dr.Suresh Shinde examined the
injured and issued injury certificate at Exhs.46 to 50. In the meantime,
Having learnt about the incident from the police patil, PW7- Ishwar Sutar,
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API at Rahimatpur police station, visited the scene of offence. He learnt
that some of the injured persons were already taken to the hospital. He
deputed some constables to guard the scene of offence and proceeded to
the civil hospital at Satara. He recorded the FIR lodged by Sambhaji
Yadav and registered C.R. No.55 of 1997 for offences punishable under
sections 143, 147, 148, 302, 307, 326, r/w. 149 of the IPC and section 30
of the Indian Arms Act against PW4-Mohan Sathe, PW5-Rajendra Chavan,
PW6-Shivprasad Sathe and others. PW7-Ishawar Sutar, API also took over
the investigation of the present crime (C.R. No.54 of 1997) from PW9-
Maruti Ghadge, ASI. He conducted the scene of offence panchnama and
recorded statements of some of the witnesses. He handed over further
investigation to PW8-Anil Sandobhor. Upon completion of the
investigation, PW8 filed the charge-sheet against the aforesaid accused.
4. The case being sessions triable, the same was committed to the
court of Session, Satara. The learned Additional Sessions Judge, Satara,
framed and explained the charge to the accused. The accused pleaded not
guilty and claimed to be tried. The prosecution examined 9 witnesses
including the injured witnesses viz. PW4-Mohan Sathe, PW5-Rajendra
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Chavan and PW6-Shivprasad Sathe. The statements of the accused came
to be recorded under section 313 of the Cr.P.C. The defence of the accused
was that on 17.11.1997 PW5-Rajendra Chavan and Sambhaji Sathe had
assaulted the accused No.1-Mahendra and accused No.2 Prashant Javal for
teasing his sister. The accused No.1 had told PW5-Rajendra Chavan that
he was not involved in such an incident and apologized for preconceived
misunderstanding, if any. The accused have denied having assaulted any
of the prosecution witnesses and have claimed that PW4-Mohan Sathe,
PW5-Rajendra Chavan, and PW6-Shivprasad Sathe and others formed an
unlawful assembly with a common object of assaulting Mahendra Gadekar
(accused No.1) and Sambhaji Yadav (accused No. 5) and in furtherance of
this object, they assaulted them and caused death of Manik. Accused No.5
had lodged a report at Rahamatpur police station relating to the same
incident, pursuant to which a charge sheet has been registered against
PW4-Mohan Sathe, PW5-Rajendra Chavan, PW6-Shivprasad Sathe and
others for forming unlawful assembly, rioting, assaulting them and causing
death of Manik.
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5. By the impugned judgment dated 29.12.2006 the learned
Additional Sessions Judge acquitted the accused of all the offences. Being
aggrieved by the same the State has preferred the present appeal.
6. Heard Mr. Dedia, the learned APP for the Appellant -State. He
has submitted that the evidence of PW4-Mohan Sathe, PW5-Rajendra
Chavan and PW6-Shivprasad Sathe sufficiently proves that the accused
had formed an unlawful assembly and had voluntarily caused hurt to the
aforesaid witnesses. He has further stated that the learned Judge has not
appreciated the evidence in the correct perspective and has erred in
acquitting the accused.
7. The learned counsel for the respondents has submitted that the
the accused had sustained serious injuries. The prosecution has failed to
explain the injuries and has thus suppressed the genesis of the incident.
He has further submitted that the learned Judge has considered the fact
that there are discrepancies in the evidence of the prosecution witnesses.
He has further submitted that this being an appeal against an order of
acquittal, the Court cannot lightly interfere with an order of acquittal
merely because another view is possible.
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8. At the outset it may be mentioned that while acquitting the
accused, the learned Judge has held that the prosecution has failed to
prove that the accused had assembled at the place of the incident with a
common object of causing injuries to PW4-Mohan Sathe or the other
injured witnesses or that there was prior meeting of mind. The learned
Judge therefore, held that the prosecution has failed to establish charges
under sections 143, 147, 148 of the IPC. The learned trial Judge has
further held that there are material discrepancies in the evidence of the
injured witnesses. The learned Judge also took notice of the fact that the
accused had themselves sustained injuries and had filed FIR against
Sambhaji Sathe and the other injured prosecution witnesses viz. PW4-
Mohan Sathe PW5-Rajendra Chavan, PW6-Shivprasad Sathe and others.
The learned Judge held that the prosecution has failed to prove that the
accused were aggressors and has thus, failed to prove the guilt of the
accused beyond reasonable doubt and thus ordered their acquittal.
9. The State has filed this appeal against the order of acquittal. It
is a well settled principle that an order of acquittal cannot be interfered
with only because another view is plausible. In Ghurey Lal Vs. State of
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U.P. 2008 (2) UJ SC 0991, the Apex Court after considering the previous
decisions, crystallized the legal position as regards the scope of the powers
of the Appellate Court in dealing with the appeal against acquittal as
under:
"73. In light of the above, the High Court and other appellate
courts should follow the well settled principles crystallized by
number of judgments if it is going to overrule or otherwise disturb
the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the
trial court's acquittal if it has "very substantial and compelling
reasons" for doing so.
A number of instances arise in which the appellate court would
have "very substantial and compelling reasons" to discard the trial
court's decision. "Very substantial and compelling reasons" exist
when:
i) The trial court's conclusion with regard to the facts is palpably
wrong;
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave
miscarriage of justice";
iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and
unreasonable;
vi) The trial court has ignored the evidence or misread the material
evidence or has ignored material documents like dying
declarations/ report of the Ballistic expert, etc.
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vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and
consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to
acquittal, the other to conviction - the High Courts/appellate courts
must rule in favour of the accused."
10. In Mrinal Das vs State of Tripura, 2011(9) SCC 479, the Apex
Court has reiterated that:-
"It is clear that in an appeal against acquittal in the absence
of perversity in the judgment and order, interference by this
Court exercising its extraordinary jurisdiction, is not
warranted. However, if the appeal is heard by an appellate
court, being the final court of fact, is fully competent to re-
appreciate, reconsider and review the evidence and take its
own decision. In other words, law does not prescribe any
limitation, restriction or condition on exercise of such power
and the appellate court is free to arrive at its own conclusion
keeping in mind that acquittal provides for presumption in
favour of the accused. The presumption of innocence is
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available to the person and in criminal jurisprudence every
person is presumed to be innocent unless he is proved guilty by
the competent court. If two reasonable views are possible on
the basis of the evidence on record, the appellate court should
not disturb the findings of acquittal. There is no limitation on
the part of the appellate court to review the evidence upon
which the order of acquittal is found and to come to its own
conclusion. The appellate court can also review the conclusion
arrived at by the trial Court with respect to both facts and
law. While dealing with the appeal against acquittal preferred
by the State, it is the duty of the appellate court to marshal
the entire evidence on record and only by giving cogent and
adequate reasons set aside the judgment of acquittal. An order
of acquittal is to be interfered with only when there are
"compelling and substantial reasons" for doing so. If the order
is "clearly unreasonable", it is a compelling reason for
interference. When the trial Court has ignored the evidence or
misread the material evidence or has ignored material
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documents like dying declaration/report of ballistic experts
etc., the appellate court is competent to reverse the decision of
the trial Court depending on the materials placed."
11. We have scrutinised the evidence and analysed the reasoning
and the conclusion arrived at by the learned Judge, keeping in view the
above well settled principles laid down by the Apex Court. The case of the
prosecution rests mainly on the ocular evidence of PW4-Mohan Sathe,
PW5-Rajendra Chavan and PW6-Shivprasad Sathe. The testimony of these
witnesses indicates that the accused No.1 had made some lewd comments
against the sister of PW5-Rajendra Chavan. On 17.11.1997 the sister of
PW5-Rajendra Chavan had complained to her parents as well as to PW5-
Rajendra Chavan that accused No.1-Mahendra Gadekar had sent a
message to her to come to the house of Vijay. PW5-Rajendra Chavan
brought these facts to the notice of the mother of accused No.1-Mahendra
Gadekar and requested her to prevail upon the accused No.1 not to
indulge in such acts. Irked by this, on 18.11.1997, accused No.1-
Mahendra Gadekar and accused No.5 Sambhaji Yadav assaulted PW5-
Rajendra Chavan and Sambhaji Sathe, son of PW4-Mohan Sathe.
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12. PW5-Rajendra Chavan has deposed that on 19.11.1997, he
painted his house throughout the day. At about 8.00 p.m he and Sambhaji
had gone to the Canal in the paddy field of PW4-Sambhaji Sathe to have a
wash. The accused No.1-Mahendra Gadekar and accused No.5 Sambhaji
Yadav came to field and assaulted them with a bicycle chain and stick. In
the meanwhile Manik (deceased), Pandharinath (accused No.3), Shankar
Yadav (accused No.4) and Prashant Jawal (accused No.5) also came to the
place of the incident armed with sticks and gupti. On seeing them, he and
Sambhaji Sathe ran towards the house of Hanmant Desai. All the accused
caught them and assaulted him and Sambhaji Sathe with gupti, sticks, etc.
He has deposed that on hearing their shouts his maternal uncle PW4-
Mohan Sathe came to the place of the incident with a gun. The accused
assaulted PW4- Mohan Sathe and in the course of a scuffle, the gun got
accidentally fired. The accused thereafter fled away from the place of the
incident.
13. PW5-Rajendra Chavan has denied that he had assaulted
accused No.1 alleging that the accused No.1 had teased his sister. He has
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also denied that on 19.11.1997 he and Sambhaji Sathe had assaulted
accused No.1-Mahendra Gadekar and accused No.5-Sambhaji Yadav and
his family members, who had arrived at the scene of offence on hearing
their cries. PW5-Rajendra Chavan has also denied that PW4-Mohan Sathe
had fired a gun at Manik Yadav and thereby caused his death.
14. PW4-Mohan Sathe is the maternal uncle of PW5-Rajendra
Chavan. PW6-Shivprasad Sathe is the son of PW4 Mohan Sathe. The
evidence of PW4 and PW6 reveals that the accused no.1 had made some
lewd comments against the sister of PW5-Rajendra Chavan. PW5-Rajendra
Chavan had questioned the Mahendra Gadekar (accused No. 1) about the
same, which resulted in a quarrel between the Mahendra Gadekar
(accused no. 1) and PW5-Rajendra Chavan. These witnesses have further
deposed that on 19.11.1997 at about 9 to 9.30 p.m. while they were at
their residence, they heard some clamor towards the house of Hanmant
Desai. They went towards the house of Hanmant Desai and saw the
accused, who were armed with weapons such as gupti, cycle chain, sticks,
etc, assaulting PW5-Rajendra Chavan and Sambhaji Sathe. Shankar Yadav
(accused No.4) tried to snatch the gun from his hand, the gun got
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accidentally discharged. He has stated that thereafter all the accused went
away from the scene of offence. Later at night, the police arrived at the
spot and took them to hospital.
15. These witnesses were examined by PW3-Dr. Suresh Machindra
Shinde, The evidence of PW3-Dr. Suresh Shinde, vis-a-vis the medical
certificates at Exh.46, Exh.50 and Exh.48 indicates that PW4-Mohan
Sathe, PW5-Rajendra Chavan and PW6-Shivprasad Sathe had sustained
following injuries:-
Injuries of PW4-Mohan Sathe:-
(1) Contused lacerated wound left over left hand ring
finger middle phalanx on frontal aspect. 2X1x1 cm. Bone
deep.
(2) Abrasion over right index finger, proximal inter
phalangeal joint./Transverse 1.1/2 cm x ½ cm X-rays were
taken and the x-rays showed fracture of middle index
phalanx of left ring finger.
He has opined that cause of the injury was hard and blunt
object and the age of injuries was within 24 hours.
Injuries of PW5-Rajendra Chavan:-
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(1) Contused lacerated wound over right index finger proximal
phalanx, on lateral aspect 1.1/2 x1/2 cm. Skin deep.
(2) Contusion over left scapular region, transverse with
chain marks.
(3) Contusion medial to right scapular region.
(4) Contusion over left temporal area 2x2 cms. Tenderness
present.
He has opined that the said injuries would have been caused by
hard and blunt object within 24 hours.
Injuries of PW6-Shivprasad Sathe:-
(1) Contusion with abrasion over dorsum of left hand
He has opined that cause of injury is hard and blunt object and age
of injury was within 24 hours.
16. The ocular evidence, corroborated by medical evidence indicates
that these prosecution witnesses had sustained injuries in the incident that
occurred on 19.11.1997. As already stated A5 had also lodged a
complaint against these prosecution witnesses in respect of the same
incident. It is pertinent to note that though the injured witnesses have
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denied having inflicted injuries on the accused, the evidence of PW.. vis-à-
vis the Postmortem report and the injury certificates at Ex.59 reveals that
Manik had expired as a result of gunshot injury sustained in the same
incident. Furthermore, the accused had sustained serious injuries in the
same incident. The prosecution has neither explained the injuries
sustained by the accused nor proved that the accused were aggressors. It
is thus, evident that the prosecution witnesses have suppressed the genesis
of the incident.
17. Be that as it may, the evidence on record indicates that the said
incident occurred against the backdrop of a quarrel between Mahendra
Gadekar (accused No.1) and PW5-Rajendra Chavan due to an alleged
incident of indecent comments and the proposal made by the Mahendra
Gadekar (accused No.1) to the sister of PW-5 Rajendra Chavan. The fact
that the members of both groups had sustained injuries indicates that both
groups were involved in inflicting injuries against each other. There is no
evidence of prior meeting of mind. Furthermore there is no clarity as to
who had caused which injury. Under the circumstances, the view taken by
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the trial court is probable and a reasonable view. We do not find any
substantial and compelling reasons to disturb the decision.
18. Under the circumstances, and in view of discussion supra the
appeal has no merit and is hereby dismissed.
(SMT. ANUJA PRABHUDESSAI, J.) (SMT. V.K. TAHILRAMANI, J.)
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