State Of ... vs Avinash Suresh Patole & 2 Ors
2017 Latest Caselaw 5958 Bom

                                                                                             CRI.APPEAL.324.03
                                                             1


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT NAGPUR, NAGPUR.
                                             ...

                            CRIMINAL APPEAL NO. 324 /2003

          State of Maharashtra 
          Through : Police Station Officer 
          Sakkardhara.                                                                         ..   APPELLANT 

                     v e r s u s

1)        Avinash  s/o Suresh Patole 
          Aged about  22 years
          occu: Electric  fitting

2)        Suresh s/o Krushnarao  Patole
          Aged 48 years, occu: Electric fitting 

3)        Abhishek  s/o Shamrao  Kamde 
          Aged about  22 years, occu: Education 
          R/o Plot No. 43,  Saraswati Nagar, Nagpur.                                 .. RESPONDENTS

...........................................................................................................................
           Ms. Shamsi Haider,  Additional Public Prosecutor for appellant -State
           Mr.R.B.Gaikwad, Advocate for respondents 
............................................................................................................................

                                                     CORAM : MRS.SWAPNA JOSHI, J.

D A T E D: 16th August, 2017

ORAL JUDGMENT:

The appellant-State has preferred this Appeal against the judgment and

order dated 24.02.2003 passed by the learned Judicial Magistrate, First Class,

Nagpur in Regular Criminal Case No.134/1999 thereby acquitting the

respondents of the offences punishable under Sections 452, 294, 504, 506,

323 read with Section 34 of the Indian Penal Code.

CRI.APPEAL.324.03

2. I have heard Ms. Shamsi Haider, the learned Additional Public

Prosecutor for the appellant-State and Shri R.B.Gaikwad, the learned counsel

for the respondents.

3. The learned A.P.P. contended that the learned Magistrate has

passed an illegal and perverse order inasmuch as the learned Magistrate has

not considered the testimony of the eye witnesses and the injured PW1-

Sushila Zade.

4. Learned counsel for the respondent, on the contrary, contented

that since there are material discrepancies in the testimony of those witnesses,

the learned trial Magistrate has rightly acquitted the respondents.

5. In order to appreciate the rival contentions, it is necessary to go

through the prosecution case, which can be narrated as under :

The complainant-PW1 Sushila Zade is running a shop of daily

needs/General stores and R/o Janaki Nagar, Nagpur. Her husband PW 2-

Shankar Zade is in the service of Postal Department. One Shyamrao Kamdi

and accused no.1-Avinash are the neighbours of the complainant. On

19.12.1998 at about 7.30 a.m. when the complainant was in her shop, at

that time, a quarrel was going on between Shyamrao and Kasturabai (PW 5)

about ousting the husband of PW5-Kasturabai from the house as she was

tenant of one Bhaurao. At that time, wife of Shyamrao, namely, Mangalabai

said to Kasturabai that she was tutored by Mrs. Zade (PW 1) and,therefore,

she is quarreling with her. On hearing this, PW1-Sushilabai intervened. On

CRI.APPEAL.324.03

this, PW 1-Sushilabai asked Mangalabai as to why she was taking her

name and she was no way related to their quarrel. Accused no.1-Avinash

appeared at that place and started abusing PW 1-Sushilabai and approached

menacingly holding a stick in his hand. PW1 restrained him. On this, accused

no.1 pushed her and as such, she fell down. Accused no.1 then proceeded

towards the husband of the complainant i.e PW2-Shankar Zade who was

brushing his teeth. At the relevant time, accused no.2-Suresh, who is father of

accused no.1, and accused no.3-Abhishekh also came running towards the

house of PW 1-Shushila to assault her. When PW1 was talking with her

husband, at that time, all the accused entered inside her house. Accused no.1

Avinash assaulted her husband on his head, as a result, he received injury on

his head. Thereafter all the accused abused and threatened to assault them

and left the premises. PW1 then took her husband to the Police Station and

lodged her complaint on the basis of which the offence was registered. The

necessary investigation was carried out. Charge-sheet was filed after

completion of the investigation. The learned Magistrate framed the charge

and on completion of trial, acquitted the respondents of the aforesaid

offences.

6. The prosecution heavily relied upon the testimony of the

complainant PW 1- Sushila Zade. According to PW1, on 19.12.1998 at about

7.30 a.m. she opened her shop which was in the front portion of her house.

At that time, talks were going on between accused no.1-Avinash, Kasturibai

CRI.APPEAL.324.03

Marwade (PW 5) and Abhishek Kamdi (accused no.3). Wife of Shyamrao

took the name of PW1 and the quarrel started, accused no.2-Suresh ( accused

no.2) started pelting stones. Avinash (accused no.1) came with a stick and

Abhishek Kamdi (accused no.3) came with a stone. Avinash started abusing

PW 1 in a filthy language. He came to her house and started assaulting her

husband by stick. He gave a blow of stick on his head and hand and also

caused fracture to his hand. In the meantime, since the people from the

locality gathered at the spot, the accused persons dispersed. PW1 took her

husband to the Police station. PW1 stated that the accused had already lodged

a report prior to lodging of her report. On the basis of the complaint (Exh.18)

lodged by PW1 the offence was registered. The husband of PW1 was taken

to the hospital. In the examination-in-chief itself PW 2 stated about a stick

by which the accused assaulted her husband. She however stated that the

said stick was not given by the accused to the police instead they give

another stick to the police. In the cross-examination, PW1 admitted that two

cases were registered against her. It appears that the accused persons and the

complainant were from different political affiliations. An improvement was

pointed out in the testimony of PW 1 with respect to the fact that accused

no.2-Suresh came with stone. Avinash (accused no.1) abused her in a filthy

language. Similarly an improvement was also made by PW1 with regard to

the injury caused to the hand of her husband. On careful testimony of PW1, it

is noticed that her version is not in consonance with the complaint (Exh.18).

CRI.APPEAL.324.03

There are several discrepancies in her testimony, with regard to the sequence

of incident as well as the roles attributed to each of the accused. PW2-

Shankar has made an improvement with regard to the fact that the accused

no.2-Suresh came there and pelted stones and accused no.3- Abhishek came

with a stone. In view of the discrepancies which go to the root of the case, it

is difficult to rely upon the testimony of PW1.

7. As far as the testimony of PW 2-Shankar Zade, who is the

husband of complainant, on 19.12.1998 when he was brushing teeth in front

of the house of Shamrao Kamdi, there was some exchange of words between

Kasturabai, Shyamrao and his wife PW1 -Sushilabai. On this, the complainant

(PW 1) requested them not to take her name and she has nothing to do with

them. At that time, all the three accused threatened them. Thereafter all the

three accused rushed to the shop of PW1; accused nos.1 and 3 were holding

weapon like stick in their hands. Accused no.1-Avinash assaulted his wife

by fist blow. Accused no.2-Suresh pelted stones at the direction where he

was standing. PW 2-Shankar rushed to rescue his wife. At that time

Avinash (accused no.1) assaulted by means of stick over his head, Abhishkeh

(accused no.3) inflicted blow of stick on his left hand therefore his left hand

got fractured and he received injury over his head. Thereafter all accused

abused him and threatened to kill him and they all fled away. An improvement

was pointed out in the testimony of PW2 to the effect that accused no.1-

Avinash assaulted him by stick, accused no.2-Suresh assaulted PW1 by fist

CRI.APPEAL.324.03

blows and accused no.3- Abhishek pelted stones. Further improvement was

pointed out that the accused no.1 assaulted him by means of stick on his head

and accused no.3- Abhishek inflicted blow of stick on his left hand. PW 2

admitted that he was not in good terms with accused nos. 2 and 3 whereas

accused nos.2 and 3 had cordial relations with accused no.1. Interestingly,

PW2 stated that his wife did not lodge a report about the incident and police

obtained his signature on his statement. On scrutiny of testimony of PW2 it is

noticed that the testimony is full of discrepancies which go to the root of the

case and creates serious doubt about the sequence of the events/ incident as

well as the weapon used in the alleged offence and the roles attributed to

each of the accused. The testimony of PW2 does not corroborate with the

testimony of PW1 and he is not found to be a trustworthy witness at all.

8. As regards the testimony of PW5-Kasturabai Marwade, who is

the alleged eye witness to the incident, stated that at about 7.30 a.m. she

went to the shop of Mrs. Zade (PW1) to purchase material. She noticed that

all three accused rushed to the house of PW2. First they assaulted the

complainant. The accused nos. 1 and 3 made the complainant to fall down.

The husband of the complainant and accused no.2 started pelting stones.

Accused no.2 started pelting stones on the head of the husband of the

complainant. In the cross-examination, PW-5 admitted that she had not stated

before the police that she had been to the shop of Mrs.Zade in the morning.

She also admitted for the first time that she stated before the court that

CRI.APPEAL.324.03

accused no.1 beat by stick and accused no.2 pelted stone at PW2. On a

careful scrutiny of testimony of PW 5, it is clear that she is not found to be a

reliable witness and her testimony does not inspire confidence.

9. Thus, on careful scrutiny of testimony of PW 1-Sushilabai, PW2-

Shankar and PW 5-Kasturabai, it can be gathered that they are not found to

be trustworthy witnesses and their testimony do not inspire confidence.

10. So far as the medical evidence is concerned, the prosecution

examined PW 6-Dr.Ramesh Gakare. PW 6 found the following two injuries,

i.e.

(a) Lacerated wound on fronto parietal region of size 5 cm.x ¼ x ¼ cm;

(b) Contusion on left wrist with fracture based of fifth metacarpal bone

(x-ray 48 97 s/s fracture).

The age of injury was within six hours. It is significant to note

that after going through the testimony of the witnesses, it is noticed that the

medical evidence is not in consonance with the ocular testimony of the

witnesses as, according to the witnesses, the accused persons had used stone

as well as stick to assault the PW 2. As already discussed above, there is

discrepancy in the testimony of PW 1-Sushilabai, PW 2-Shankar and PW 5-

Kasturabai and their testimony do not corroborate with each other, so also

the ocular testimony is also not corroborated with the testimony of the

witnesses. PW2-Shankar was referred for Radiological test. However there is

no report of the Radiologist to substantiate the contention of PW2 that he

CRI.APPEAL.324.03

had received fracture injury.

11. In view of the aforesaid facts and circumstances it is held that

the prosecution has miserably failed to prove any of the charges levelled

against the respondents. It is pertinent to note that stick was recovered from

the spot whereas according to PW1 it was recovered form her house. She

further stated that the article-A before the Court was not the stick which

was taken charge from her house. No illegality or perversity in the impugned

judgment and order could be pointed out. The learned Magistrate has rightly

acquitted the accused.

12. In the result, the Appeal is dismissed.

JUDGE

Sahare