Bombay High Court

Gurudas S/O Sadaram Bansod vs State Of Maharashtra, Through The ... on 3 April, 2017

Bench: I.K. Jain

 CRI. APPEAL NO.214.14.odt                    1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.214 OF 2014


 Gurudas s/o Sadaram Bansod,
 Member, Baudha Samaj & Baudha
 Amrapali Mahila Mandal, Kondhala
 Aged about 44 years,
 Occupation-Labourer,
 R/o. Kondhala, Tahsil-Desaiganj (Wadsa),
 District-Gadchiroli.                 ..                            APPELLANT


                               .. VERSUS ..


 1]     State of Maharashtra,
        Through the Police Station Officer,
        Police Station, Desaiganj,
        District-Gadchiroli.

 2]     Kailas s/o Tukaram Rane,
        Aged about 47 years,
        Occupation-Cultivator.

 3]     Pandhari s/o Tulshiram Nakhate,
        Aged about 65 years,
        Occupation-Cultivator.

 4]     Ravindra s/o Antaji Behare,
        Aged about 54 years,
        Occupation-Cultivaror.

 5]     Namdeo s/o Dinaji Wasake,
        Aged about 25 years,
        Occupation-Cultivaror.

 6]     Bhagwat s/o Pisaram Meshram,
        Aged about 36 years,
        Occupation-Cultivator.



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  CRI. APPEAL NO.214.14.odt                 2

 7]     Wasudeo s/o Domaji Tuppat,
        Aged about 52 years,
        Occupation-Cultivator.

 8]     Umesh s/o Dadaji Raut,
        Aged about 34 years,
        Occupation-Cultivator.

 9]     Sunil s/o Pundalik Pardhi,
        Aged about 31 years,
        Occupation-Cultivator.

 10] Vilas s/o Baburao Dhore,
     Aged about 42 years,
     Occupation-Cultivator,
     All R/o. Kondhala, Tah. Desaiganj,
     Police Station, Desaiganj,
     District-Gadchiroli.               ..                   RESPONDENTS



                               ..........
 Shri A.S. Bhandarkar, Advocate for Appellant,
 Shri I.J. Damle, A.P.P. for Respondent No.1-State,
 Shri V.N. Morande, Advocate for Respondent Nos.2 to 10.
                               ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 03, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order of acquittal dated 24.12.2013 passed by the

learned Assistant Sessions Judge, Gadchiroli in Special

(Atrocity) Case No.1/2010. By the said judgment and order,

respondent nos.2 to 10-original accused came to be

acquitted of the offences punishable under Sections 143,

427 read with 149 of the Indian Penal Code and Section 3 (1)

(x) (iv) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989.

2] Prosecution case which can be revealed from the

chargesheet and connecting papers thereto may be stated

in brief as under :

(a) On 12.10.2005, people of village

Kondhala were to celebrate Dhamma Chakra

Parivartan Din. On 11.10.2005, pendal was

erected near Ambedkar Square of the village.

Allegations against the accused are that they

entered in the pendal and dismantled the same by

uttering abuses to complainant and his associates

in the name of caste. Report was lodged with

Desaiganj Police Station. Crime No.74/2005 was

registered against the accused. Investigation was

taken over by S.D.P.O. Ravindrasing Santoshsing

Pardeshi.

(b) Investigating officer visited the place of

occurrence and recorded spot panchanama.

During the course of investigation, statements of

other witnesses were recorded. On completing

investigation, chargesheet was filed before the

concerned court.

3] Charge of the alleged offence was explained to the

accused by the trial court. They pleaded not guilty and

claimed to be tried. Their defence was of total denial and

false implication in view of previous enmity.

4] Prosecution examined in all six witnesses to

substantiate the alleged guilt of the accused. Considering

the evidence of prosecution witnesses and submissions

made on behalf of the parties, trial court came to the

conclusion that offences alleged against the accused were

not established beyond reasonable doubt and in

consequence thereof, accused were acquitted. Being

aggrieved, one of the complainants has come up before this

court in the present appeal.

5] Heard Shri Bhandarkar, learned counsel for

appellant, Shri Damle, learned Additional Public Prosecutor

for respondent no.1-State and Shri Morande, learned

counsel for respondent nos.2 to 10.

6] On meticulous evaluation of the evidence on

record and submissions made on behalf of the parties, this

court, for the below mentioned reasons, finds no perversity

or illegality in the order of acquittal passed by the trial court.

7] It can be seen from the report (Exh.47) lodged by

the present appellant that no specific abuses, as allegedly

uttered by the accused, have been stated in FIR. Only

omnibus statements are made and allegations are that

accused intentionally dismantled the pendal and abused

complainant and others in the name of their caste. No

specific role is attributed to each of the accused. Though

FIR appears to have been lodged on 12.10.2005, time of

alleged FIR is missing in the report Exh.47. From the

evidence of PW-3 Laxapati, it can be seen that FIR was

lodged on 12.10.2005 at 9.00 pm. Desaiganj Police Station

is at the distance of around 5-7 km from village Kondhala.

Incident occurred on 11.10.2005 between 7-7.30 pm.

Previous enmity between the parties is admitted in the

cross-examination of complainant and other witnesses. In

this background, the trial court in paragraph nos.17, 18 and

19 made the following observations :

17. By keeping the evidence of Investigation Officer aside, it has to be noted that at first the report vide Exh.47 shows that, on the date of incident the police personnel were present at the spot. The complainants have made allegations that, the accused have dismantled and torn the pendal in presence of police. This fact is fortified by P.W.5 Shrawan. The portion mark 'A' of the complaint certainly shows that. at the time of incident police have intervened the matter. It has to be noted that, if at all the pendal was torn by the accused in presence of police, then police were in a position a launch the prosecution against the accused on their own accord. However, the attending circumstances, shows that, the panchanama drawn vide Exh.45 does not show the picture of damaged pendal. Admittedly, the said pendal was owned by Maroti Tupat, who has not raised any complaint before the police or even he is not cited as a witness. This fact goes to show that, the pendal was not dismantled or torn by any person. The prosecution has failed to establish the fact that, the accused have dismantled or torn the said pendawl.

18. It is evident to say that, none of the prosecution witnesses have stated what an exact act was done by the accused. It is very easy to say that, accused have torn and dismantled the pendal, but it is very difficult to digest. It is also to be seen that, the evidence of P.W.6 I.O. shows that, he had entered on the spot on 13.10.2005. It means, after lapse of two days the I.O., has entered down the spot. At that time nothing was found on the spot. The I.O. has not enquired to Maroti Tupat in respect of his pendal. The I.O. could have interrogated to him, but in absence of the statement of pendal owner, it is very difficult to assume that, the accused have torn the pendal. In this sequence it is also to be seen

that, the evidence of prosecution witnesses shows that, when the work of erection of pendal was going on, there were several labours of Maroti Tupat working. If at all the accused have demolished that pendal then those labours were required to be arrayed as witnesses in the present matter. The I.O., has not taken any pain to record the statements of either the pendal owner Maroti Tupat or the concerned labours. In absence of this evidence it is very difficult to say that the prosecution story is reasonable.

19. On scanning the entire prosecution evidence, it appears that, the parties are having enemical terms. There were 2-3 groups in the village. Group of accused is rival group of the complainant's group. More particularly, there is dispute on account of Shahid Smark. So, this enmity has invited to launch the prosecution case against the accused. The evidence adduced by prosecution is very much deficient. There is no clinching evidence against the accused. The prosecution has failed to prove that, the accused have made abuses to the complainant and other witnesses. The prosecution has also failed to establish the fact that, the accused have demolished or torn the pendawl, which was to be used for 'Dhamma Chakra Parivartan Din'. The investigation carried by the investigation officer is faulty. He has not recorded statements of necessary witnesses. Even, the I.O., has not recorded the statements of neighbourers to the spot. In all the prosecution has miserably failed to prove the guilt of accused beyond reasonable doubt. Hence, the accused are entitled to acquittal. Consequently, I answer all the points accordingly and pass the following order.

8] This court, with the assistance of the learned

counsel for the parties, has gone through the evidence

adduced by the prosecution. The evidence is not sufficient

to bring home the guilt of the accused persons beyond

reasonable doubt. Not only this several infirmities and

deficiencies brought in the cross-examination of

complainant PW-2 Gurudas Bansod, eyewitnesses PW-3

Laxapati Khobragade, PW-4 Smt. Pushpa Dhakade, PW-5

Shrawan Tembhurne and a witness on spot panchanama

PW-1 Tarachand Meshram go to the root of substratum of

prosecution case.

9] In the above premise, view taken by the Trial court