Arjun Shamrao Koli vs The State Of Maharashtra And Ors
2017 Latest Caselaw 9445 Bom

                                                   Cri. Appeal No. 625/02 & Anr.
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                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                               CRIMINAL APPEAL NO. 625 OF 2002

         The State of Maharashtra,
         Through Police Station Officer,
         Police Station, Thalner.               ....Appellant

                 Versus

1.       Rehman Titanya Pawara
         Age 39 years, Occu. Agri.

2.       Khumsingh Khandu Pawara
         Age 25 years, Occu. Agri.

3.       Totaram Samdha Pawara
         Age 35 years, Occu. Agri.

4.       Shivdas Gajarya Pawara
         Age 35 years, Occu. Agri.

5.       Vaharya Laxman Pawara
         Age 35 years, Occu. Agri.

6.       Magan Verangya Pawara
         (Since dead abated)

7.       Indal Rehamn Pawara
         Age 18 years, Occu. Agri.

8.       Gorashya Samdha Pawara
         Age 25 years, Occu. Agri.

         All R/o village Mahadev Dondwada
         Tahsil Shirpur, Dist. Dhule.                  ...Respondents.


Mr. V.S. Badakh, APP for appellant/State.
Mr. A.J. Patil h/f. Mr. M.S. Deshmukh, Advocate for respondent Nos. 1 to
5.
                             WITH
         CRIMINAL REVISION APPLICATION NO. 301 OF 2002




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                                                     Cri. Appeal No. 625/02 & Anr.
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         Arjun s/o Shamrao Koli,
         Age 52 years, Occu. Agriculturist.
         R/o Hisale, Tal. Shirapur,
         Dist. Dhule.                                  ....Petitioner

                 Versus

1.       State of Maharashtra.

2.       Shri Rehman Titanya Pawara
         Age 39 years, Occu. Agriculturist.

3.       Shri Khumsingh Khandu Pawara
         Age 25 years, Occu. Agriculturist.

4.       Shri Totaram Samdha Pawara
         Age 35 years, Occu. Agriculturist.

5.       Shri Shivdas Gajarya Pawara
         Age 35 years, Occu. Agriculturist.

6.       Shri Vaharya Laxman Pawara
         Age 35 years, Occu. Agriculturist.

7.       Indal Rehman Pawara,
         Age 18 years, Occu. Agriculturist.

8.       Shri Gorashya Samdha Pawara
         Age 25 years, Occu. Agriculturist.

         All accused No.2 to 8 resident
         of village Mahadev Dondwada, Tahsil
         Shirpur, Dist. Dhule.                          ...Respondents.


Mr. Pravin S. Patil, Advocate for petitioner.
Mr. V.S. Badakh, APP for respondent/State


                                    CORAM   :
                            T.V. NALAWADE AND
                            ARUN M. DHAVALE, JJ.

DATED : 08/12/2017 JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed to challenge the decision given by the

Cri. Appeal No. 625/02 & Anr.

learned 2nd Additional Sessions Judge, Dhule in Sessions Case No.

49/1995 by which the present respondents are acquitted of he offence

punishable under section 307 r/w. 149 of Indian Penal Code

(hereinafter referred to as 'IPC' for short) and also of the offence

punishable under section 148 of IPC. Criminal Revision Application No.

301/2002 is filed to challenge the same decision, but the proceeding is

filed by the original complainant. Both the sides are heard.

2) In short, the facts leading to the institution of the present

proceedings, can be stated as follows :-

First Informant - Arjun Koli is resident of village Hisale,

Tahsil Shirpur, District Dhule and he is also the President of one Labour

Association. The incident took place on 24.11.1994 at about 8.00 a.m.

According to him, when he was returning from field and when he was

at Hisale S.T. stand, accused No. 1 Rahman Pawara obstructed him and

started questioning as to why the fist informant had asked Baliram

Jadhav to give report to police. When Arjun Koli said that he had no

concern with the report, Raheman took out knife and started assaulting

the first informant. After seeing the knife, Arjun caught hold of the

knife and then other accused, seven in numbers came forward. They

were having sticks. According to Arjun, there were in all 25 persons

with Rahman and all of them assaulted him by using sticks and caused

fracture injuries to both his legs. He became unconscious and then the

Cri. Appeal No. 625/02 & Anr.

accused persons ran away. This incident was witnessed by Ramesh

Vanjari, who owns the hotel near the S.T. stand. Arjun was shifted to

cottage hospital Shirpur where his report came to be recorded by

police. The crime at C.R. No. 54/1994 came to be registered on the

basis of this report for offence punishable under section 325 r/w. 149

of IPC and also for offences punishable under sections 147 and 148 of

IPC. Police collected the injury certificates and recorded statements of

witnesses who include Ramesh. Some persons, who had shifted Arjun

to the hospital came forward to give statements. After completion of

investigation, the chargesheet came to be filed for aforesaid offences.

3) Charge was framed for the aforesaid offences against eight

accused persons, the present respondents from appeal. Accused

pleaded not guilty. Prosecution examined in all nine witnesses to prove

the offences. The Trial Court has not believed the witnesses and has

given benefit of doubt to all the accused.

4) Arjun (PW 1) has given evidence on oath as per aforesaid

contentions made by him in the F.I.R. According to him, in all 25

persons assaulted him by using sticks and they caused fractures of

both his legs. According to him, as he held the weapon knife, which

Rahman wanted to use, he sustained bleeding injuries to his hand,

palm. He has given evidence that after assaulting him all the accused

Cri. Appeal No. 625/02 & Anr.

left the place in one Ambassador car. He has given evidence that

Dashrath Sardar, Bhivsen Shyamrao shifted him to the hospital where

his report at Exh. 46 was recorded by police. The accused persons

were known to him and he identified them in the Court.

5) Ramesh Vanjari (PW 2), hotel owner has given evidence

that initially all the accused persons were sitting in his hotel and after

seeing Arjun, they went out and they picked up quarrel with Arjun. He

has given evidence that all the accused had come in one Ambassador

car. He has given evidence that Rahman used knife, but Arjun held that

knife and then others assaulted him by using sticks.

6) In F.I.R., Exh. 46, Arjun had not named Ramesh as eye

witness. When Arjun has deposed that 25 persons had attacked him,

Ramesh has given evidence that only eight persons assaulted Arjun.

7) Baliram (PW 4) is examined as other eye witness by

prosecution. He has given evidence that by chance, he was present at

the spot and he noticed that five persons were giving beating by fist

and kick blows to Arjun and they were Rahman Titaniya, Guman

Titaniya, Bhagwan Gajariya and others. He is the person due to whom

aforesaid incident took place as per the version of Arjun. Thus, he is an

interested witness. He has given name of only accused No. 1 Rahman

Cri. Appeal No. 625/02 & Anr.

as the persons involved in the incident of beating. Dashrath (PW 3) has

given evidence that when he reached to the spot, the incident was over

and he learnt that Rahman Titaniya was involved in the incident and he

had assaulted Arjun. Thus, he is not taking the names of other accused

persons when his evidence is relevant under section 6 of the Evidence

Act.

8) Prosecution has examined Dr. Surekha (PW 7) to prove that

Arjun had sustained injuries on 24.11.1994. She has described the

injuries found on the person of Arjun as follows :-

(i) CLW over right tibia fibula right lower leg with fracture

3x2x1 cm.

(ii) CLW over the left lower leg tibia fibula left side 3x2x1

cm.

(iii) Contusion over left mammory region 3x3 cm.

(iv) Contusion over left frontal region scalp 3 x 3 cm.

(v) Contusion over right thigh 7 x 3 cm.

(vi) Contusion left laswer leg 3 x 2 x 1 cm.

(vii) CLW over right palm 2 x 1 x 1/2

(viii) CLW over the right palm 2 x 1 x 1/2 cm.

She has given evidence that the injuries were sustained within 24

hours and all the injuries were caused due to hard and blunt object.

She has deposed that she has advised X-ray in respect of injury Nos. 1

Cri. Appeal No. 625/02 & Anr.

and 2 and there was suspected fracture and she has referred the

injured to Civil Hospital, Dhule. The M.L.C. prepared by her is duly

proved as Exh. 60.

9) Dr. Bhalchandra (PW 8) is examined by prosecution to

prove that on 24.11.1994 itself X-ray in respect of injury Nos. 1 and 2

were taken and it was found that there was fracture of bones of both

the legs. The certificate is duly proved as Exh. 70. There was the

fracture of tibia fibula right and tibia left. Doctor has given evidence

that the injuries were caused within six hours. When it is not the

evidence of Dr. Surekha, Dr. Bhalchandra has given evidence on the

injuries which he noticed on palm and he has deposed that those two

injuries were possibly caused due to sharp object like knife.

10) The aforesaid evidence shows that there was some

previous dispute between atleast accused Nos. 1 and two prosecution

witnesses including the first informant. It can be said that six injuries

were caused by sticks, but the first informant has tried to say that as

many as 25 persons assaulted him. This shows that the first informant

wanted to settle the score by implicating others. Fortunately,

supplementary statement of first informant was not recorded and the

case was not filed against other persons. In any case, considering the

number of injuries found on the person of first informant, it does not

Cri. Appeal No. 625/02 & Anr.

look probable that as many as 7 persons had assaulted him by using

sticks. Further, the case that as many as eight persons had came in

one Ambassador car and they left in one Ambassador car with sticks

does not look probable in nature. No specific role is attributed to

accused persons except accused No. 1. Thus, it is not possible to

ascertain as to which accused inflicted particularly the fracture injuries

on the legs of first informant. Due to these circumstances, the Trial

Court has given benefit of doubt to all the accused persons,

considering the possibility of exaggeration of false implication. This

Court holds that the view taken by the Trial Court is possible view and

interference is not possible in the decision given by the Trial Court.

During arguments also, the learned counsels of both the sides

submitted that the parties have settled the dispute. In view of these

circumstances, both the proceedings are dismissed.

       [ARUN M. DHAVALE, J.]            [T.V. NALAWADE, J.]



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