Bombay High Court
State Of ... vs Madhukar Suryabhan Jadhav And 11 ... on 3 August, 2017
Bench: M. G. Giratkar
1 jg.apeal.409.02.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 409 OF 2002
State of Maharashtra,
Through Police Station Officer,
Police Station Patur,
Tq. Patur, District - Akola. ... Appellant
- VERSUS -
(1) Madhukar Suryabhan Jadhav,
aged about 35 years.
(2) Narsing Lumba Jadhav,
aged 55 years.
(3) Shivlal Suryabhan Jadhav,
aged about 50 years.
(4) Babulal Manna Jadhav,
aged 46 years.
(5) Sadashiv Suryabhan Jadhav,
aged 40 Yrs.
(6) Ramesh Dalsingh Jadhav,
aged 27 Yrs.
(7) Shaligram Kashiram Jadhav,
aged 34 Yrs.
(8) Ganesh Babulal Jadhav,
aged 22 Yrs.
(9) Ramesh Kashiram Jadhav,
aged 22 Yrs.
(10) Vilas Shivlal Jadhav,
aged 27 years.
::: Uploaded on - 03/08/2017 ::: Downloaded on - 06/08/2017 00:47:18 :::
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(11) Prakash Chaju Jadhav,
aged 23 Yrs.
(12) Vijay Suryabhan Jadhav,
aged 27 Yrs.
All accused resident of Babhulgaon,
P.S. Patur, Distt. Akola. ... Respondents/
Accused
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Shri A. M. Joshi, A.P.P. for the State/appellant
None for the respondents
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CORAM : M. G. GIRATKAR, J.
Date of reserving judgment : 12/07/2017.
Date of pronouncing judgment : 03/08/2017.
Judgment
The appellant/State has challenged the impugned judgment
of acquittal passed by learned Judicial Magistrate First Class, Patur in
Regular Criminal Case No. 88/1998.
2. The complainant Hirasingh Rathod lodged the report,
Exhibit 27 in the Police Station, Patur. It is alleged by the complainant/
P.W. 1 that on 9-3-1998, there was quarrel between accused and
themselves over the trifle issues. On 14-3-1998 in the night at about
1.30 to 2.00 O'Clock, all accused persons came in front of their house
having sticks and iron rods in their hands. They abused his family
members and asked to send Digambar outside the house. His wife
Radhabai tried to convince all the accused but they did not listen.
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Accused persons assaulted his wife Radhabai. Radhabai sustained
injuries on her head and back. Accused beat the complainant on his
legs. When his son Digambar and Drupadabai Rathod tried to pacify the
dispute, all accused persons assaulted them. Next day, in the morning,
complainant lodged the report. Crime was registered against the
accused persons. PSI Phulsingh investigated the crime and filed
charge-sheet before the Judicial Magistrate First Class, Patur. Learned
Judicial Magistrate First Class, Patur framed charge against all the
accused for the offences punishable under Sections 147, 148, 323, 324,
504 read with Section 149 of the Indian Penal Code and under Section
135 of the Bombay Police Act.
3. Prosecution has examined in all 13 witnesses. Statements
of accused were recorded. After hearing prosecution and defence,
learned Judicial Magistrate First Class, Patur acquitted all the accused
vide judgment dated 16-3-2002. Being aggrieved by the impugned
judgment, present appeal is filed by the prosecution/State.
4. Heard learned Additional Public Prosecutor Shri Joshi for
the appellant/State. None appears for the respondents when called.
5. Learned Additional Public Prosecutor Shri Joshi has
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submitted that all material/injured witnesses have stated that in the
night of incident, accused persons beat P.W. 1, P.W. 2, P.W. 3 and
P.W. 4. All the accused were having sticks and iron rods. Incident took
place in the full moonlight, therefore, there is no question of
mis-identity. Learned Additional Public Prosecutor Shri Joshi has
submitted that trial Court has not considered the evidence properly and
wrongly acquitted all the accused. At last, learned Additional Public
Prosecutor prayed to allow the appeal and convict the accused for the
offences charged against them.
6. P. W. 1 Hirasingh Rathod lodged report against all the
accused. He has stated in his examination-in-chief that all accused
gathered in front of his house in the midnight at about 1.30-2.00 a.m.
They were saying to take out his son Digambar. His wife tried to pacify
the accused. All accused beat his wife. He was also beaten by the
accused. His wife sustained injury on her head and back. When his son
intervened, he was also beaten. P.W. 4 Drupadabai Rathod tried to
intervene. She was also beaten by the accused persons.
7. Injured P.W. 1, P.W. 2, P.W. 3 and P.W. 4 have stated
about the beating by the accused persons. They have stated about the
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injuries sustained by them. P.W. 1 and P.W. 3 have stated that they
were examined by doctor and medical treatment was given.
8. It is pertinent to note that prosecution has not examined
Medical Officer to prove injuries. Material burden on the prosecution to
prove injuries is not discharged. There is material omissions and
contradictions in the evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and
other witnesses. P.W. 1 has stated that accused persons beat his wife,
son, himself and one Drupadabai. In the cross-examination, material
omission is brought on record that "accused Shivlal, Narsingh, Lumba,
Sadashiv and Vijay pulled his wife and son on the road" not stated in his
police statement. He has further admitted that he did not state in his
police statement that two stick blows were given to his wife. Other
material omissions in respect of beating by the accused persons are
brought on record in his cross-examination. But he did not assign any
reason for the said omission. It was pointed out during the course of
cross-examination that he along with his wife tried to convince the
accused and accused did not pay any heed. He replied in negative.
Portion marked 'A' of his report was pointed out to him but he denied
the same.
9. P.W. 2 Digambar has stated in his evidence that accused
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persons beat him, his father and mother. Material omissions are
brought on record in his cross-examination. He has stated in his cross-
examination that he had stated to police that "there are three rooms in
his house. They were sleeping in their house at the time of incident.
Accused Shaligram Jadhav, Narsingh, Ramesh Jadhav, Ramesh
Kashiram Jadhav, Prakash Jadhav, Vijay Jadhav, Vilas and 11-12
persons beat them." He had stated to police that the accused were
raising alarm outside their house. Accused no. 7 was saying that they
should be killed. Accused pulled his father and mother out of the house
and beaten them. Accused Narsingh and Shivlal given blow of stick on
his leg. His mother was unconscious. ...." All these are the material
omissions brought on record in his cross-examination.
10. P.W. 3 Radhabai has stated about the beating by accused
persons but in her cross-examination, she has not explained about the
material omissions brought on record. She has specifically admitted
that she had not stated to police that accused beaten her by stick.
11. P.W. 4 Drupadabai has stated as per the prosecution
case. In her cross-examination, material omissions are brought on
record that Radhabai fell down due to the beating and accused abused
her. Accused no. 7 threatened them. Radhabai told her that accused
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pulled her outside the house and beat. She saw the incident in the
street lamp and also in the moonlight. ...." All these are the material
omissions brought on record in her cross-examination. She has further
admitted in her cross-examination that Radhabai not told her that she
was beaten by the accused by pulling her outside the house.
12. P.W. 5 Durgabai Rathod has stated that accused Narsingh,
Shivdas and Sadashiv beaten her mother and brother. In her cross-
examination, material omissions are brought on record. She has further
admitted that accused were not possessing anything. There are material
omissions brought in her cross-examination.
13. P.W. 6 Mangala Rathod has specifically admitted in her
evidence that when she along with her mother Drupadabai went to the
spot, nobody was there. She has further admitted that she did not
hear any sound of Radhabai. Material omissions are also brought on
record in her cross-examination.
14. P.W. 7 Police Constable Sudarshan Dhotre has stated that
he taken the injured to the hospital. P.W. 8 Dinesh Barvekar has stated
that he seized clothes vide seizure panchanama, Exhibit 29. As per his
evidence, investigation was carried out by PSI Phulsingh. Panch
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witnesses turned hostile.
15. Material omissions and contradictions are brought on
record in the cross-examination of all the material/injured witnesses.
Therefore, it was for the prosecution to examine the Investigating
Officer. Prosecution has not examined the Investigating Officer,
therefore, great prejudice is caused to the accused persons.
16. As per the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4,
they sustained injuries due to beating by the accused persons but
Medical Officer not examined by the prosecution. Therefore, injuries
are not proved.
17. Looking to the material omissions and contradictions in the
evidence of witnesses, learned trial Court rightly recorded its findings
that they are not reliable. As per the evidence of these witnesses, other
independent witnesses saw the incident but they are not examined by
the prosecution. P.W. 1 to P.W. 7 are the nearest relatives of each
other. Therefore, it was necessary for the prosecution to examine
independent witnesses. Learned trial Court has rightly recorded its
findings. There is no perversity or illegality in the judgment of trial
Court. Hence appeal deserved to be dismissed. Hence the following
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order :
(i) Appeal is dismissed.
(ii) Bail bonds of accused/respondents stand cancelled.
(iii) R & P be sent back to the trial Court.
JUDGE
wasnik
