State Of Mah.Thr.Pso Akola vs Ramdas Ratan Pund
2017 Latest Caselaw 9568 Bom

                                    1                  apeal94.04 & revn 10.04


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 94 OF 2004

 State of Maharashtra, 
 through the Police Station Officer, 
 Karanja, Taluka - Karanja, 
 District - Akola.                                  ....       APPELLANT

                     VERSUS

 Ramdas s/o Ratan Pund, 
 Aged about 35 years, 
 Occupation - Agriculturist, 
 R/o Dudhora, Tq. Karanja, 
 District - Akola.                                  ....  RESPONDENT
 ______________________________________________________________
       Ms. Trupti Udeshi, Addl.Public Prosecutor for the appellant, 
              Shri R.S. Kurekar, Advocate for the respondent.
  ______________________________________________________________
      
                                   WITH

 CRIMINAL REVISION APPLICATION NO. 10 OF 2004

 Gopal Laxmanrao Pund, 
 Aged about 45 years, 
 Occupation - Agriculturist, 
 R/o Dudhora, Tahsil - Karanja, 
 District - Washim.                                 ....       APPELLANT

                     VERSUS

 1) The State of Maharashtra, 
     through Police Station Officer, 
     Karanja.

 2) Ramdas s/o Ratan Pund, 
     Aged about 40 years, 
     Occupation - Agriculturist, 
     R/o Dudhora, Tq. Karanja, 
     District - Akola.                              ....       RESPONDENTS




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                                      2                        apeal94.04 & revn 10.04


 ___________________________________________________________

                         None for the appellant,
       Ms. Trupti Udeshi, Addl.Public Prosecutor for respondent 1, 
             Shri R.S. Kurekar, Advocate for respondent  2.
  ______________________________________________________________

                                CORAM :      ROHIT B. DEO, J.

DATED : 7 & 8 th DECEMBER, 2017 th

DATED : 11 DECEMBER, 2017 th

DATED : 13 DECEMBER, 2017 th

ORAL JUDGMENT :

The State is in appeal challenging the judgment and order

dated 01-12-2003 in Criminal Appeal 12/1998 delivered by the learned

Sessions Judge, Washim, which reverses the judgment of conviction

dated 31-3-1998 in Regular Criminal Case 19/1996 delivered by the

learned Judicial Magistrate First Class, Karanja, by and under which

the accused is convicted for offences punishable under Sections 342,

440, 355, 504 and 506 Part-II of the Indian Penal Code.

2. Criminal Revision 10/2004 is preferred by the complainant

Gopal Laxmanrao Pund. It is stated at the bar that the revisionist is no

more. A praecipe is also placed on record. The statement is accepted

and the Criminal Revision Application 10/2004 is disposed of as

abated.

3. Ms. Trupti Udeshi, the learned Additional Public

3 apeal94.04 & revn 10.04

Prosecutor for the State submits that the reversing judgment of

acquittal dangerously borders on perversity and is against the weight of

the evidence on record. The learned appellate Court committed serious

error in reversing the judgment of conviction, is the submission.

4. Per contra, the learned Counsel for the accused Shri

R.S. Kurekar who appears in Criminal Appeal 54/2004 and Criminal

Revision Application 10/2004 would submit that there is no compelling

reason demonstrated to warrant interference in the judgment of the

acquittal. The findings recorded are not perverse and the view taken

by the learned Sessions Judge is a possible view, is the submission. My

attention is invited to the position of law, which is too well settled that

unless the judgment of acquittal is demonstrably perverse, ordinarily,

the High Court ought not to interfere in the judgment of acquittal.

5. I have given my anxious consideration to the evidence on

record and the contentions of the learned Counsel, and having done so,

I do not find any merit in the appeal against the judgment of acquittal.

The view taken by the learned Sessions Judge is not only a

possible view, is the only view which could have been taken in the

teeth of the evidence on record. Au contraire, the judgment of the

learned Judicial Magistrate First Class is clearly perverse to the extent

4 apeal94.04 & revn 10.04

the accused is convicted for offence punishable under Section 440 of

the Indian Penal Code without an iota of evidence on record and

indeed without any witness even alleging, that the accused committed

mischief within the meaning of Section 425 of the Indian Penal Code. I

refrain from making any further observation and deem it appropriate to

exercise judicial restraint.

6. The gist of the oral report which activated the wheels of

investigation is that the complainant Gopal Laxman Pund and P.W.2

Ramrao, the Sarpanch of the village, were induced to visit the house of

the accused. The accused initially visited the house of the complainant,

told the complainant that he was called by the sarpanch, the accused

asked his wife to visit the house of the sarpanch and fetch him.

7. The Sarpanch Ramrao Pandey and the complainant Gopal

accompanied the accused to his house, the accused was about to close

the door when the sister of the complainant Narmadatai came and

asked the accused as to why the accused was detaining and beating the

complainant. The accused pushed Narmadatai, asked her to leave the

scene and threatened to cause her physical harm, then closed the door

from inside. The accused assaulted the complainant with slaps and fist

blows, made him remove the shirt and the full pant at the point of

5 apeal94.04 & revn 10.04

spear, tied the hands of the complainant with nylon rope, cut his hair,

applied gulal, put a garland of tomatoes around the neck of the

complainant, and paraded the complainant on each and every road in

the village. The report states that the complainant was forced to submit

since the accused was continuously pricking the back of the

complainant with the spear and holding the rope. The sister of the

complainant Narmadatai was moving with the complainant and the

accused and was requesting the accused to leave the complainant

alone. Many persons from the village were witnesses to the incident

including the Sarpanch and some villagers made an attempt to

intervene in it. Ramdas threatened them with murder. The

complainant states that after he was humiliated and forced to walk on

every road, he was made to stand in front of the house of the accused

who returned the clothes and untied the hands. The accused

threatened the complainant and asked him to leave the village.

8. On the basis of the said report, offences punishable under

sections 342, 355, 292, 504 and 506 of IPC were registered at the

Karanja Police Station. The completion of investigation led to

submission of the charge-sheet in the Court of Judicial Magistrate First

Class, Karanja. The learned Magistrate framed charge vide Exh.9 for

offence punishable under sections 342, 355, 292, 504 and 506 of IPC.

6 apeal94.04 & revn 10.04

The accused pleaded not guilty and claimed to be tried.

9. The learned Magistrate by judgment and order dated

31.03.1998 was pleased to convict the respondent for offence

punsihable under sections 342, 440, 355, 504 and 506 (II) of the IPC

and was pleased to sentence the respondent as follows:

                     Section                                    Period
  342 of IPC                                  R.I. for three months and fine of
                                              Rs.500/-.
  440 of IPC                                  R.I.   for   one   year   and   fine   of
                                              Rs.500/-.
  355 of IPC                                  R.I. for three months and fine of
                                              Rs.500/-
  504 of IPC                                  R.I. for three months and fine of
                                              Rs.500/-
  506 (II) of IPC                               R.I.   for   six   months   and   fine   of
                                              Rs.500/-

10. Aggrieved by the judgment and order of conviction, the

respondent-accused preferred Criminal Appeal 12/1998 which is

decided by the learned Additional Sessions Judge, Washim on

01.12.2003, by and under which, the respondent-accused is acquitted

of all the offences, which is the judgment and order impugned assailed

in the appeal.

11. I have scrutinized the evidence on record closely and

7 apeal94.04 & revn 10.04

having done so, I have no hesitation in observing that the prosecution

case is improbable and suspect. Be it noted, that although, the

complainant contends that when he was forced to walk on each and

every road of the village at the point of spear, the humiliating parade

was followed by the sister of the complainant Narmadabai, who is cited

as witness. However, for reasons well known to the prosecution, she is

not examined. PW 1 - Gopal and PW 2 - Rama are influential persons.

PW 2 Rama was then the Sarpanch. The version of PW 1 and PW 2

that they were summoned to the house of the accused, the accused tied

both the hands of PW 1 - Gopal by nylon rope cut the hair and

sprinkled Gulal, undressed PW 1 - Rama and then took him in a

humiliating procession on each and every road of the village, without

PW 1 and PW 2 resisting, is held to be highly improbable and indeed

unbelievable, by the learned Sessions Judge. I am inclined to agree.

The explanation that the accused threatened PW 1 and PW 2 with

spear deserves to be noted only for rejection. The learned Sessions

Judge has discussed and appreciated the evidence in paragraph 12 and

13 of the judgment and the said appreciation is unexceptionable. The

learned Sessions Judge has noted that it was well nigh impossible for

the accused to constantly hold the spear in one hand and with the

other free hand to assault the PW 1, fetch a nylon rope and tie the

hands of PW 1, cut the hair of PW 1 and force PW 1 to undress and

8 apeal94.04 & revn 10.04

thereafter to force PW 1 out of the house and parade him in a

procession. The learned Sessions Judge has noted, and rightly so, that

in the social hierarchy PW 1 and PW 2 who were member and

Sarpanch of the Gram Panchayat were on a higher pedestal as

compared to the accused. PW 1 and PW 2 were persons of status and

who were even physically of the same age as that of the accused and

were robust.

The learned Sessions Judge has recorded sound reasons for

disbelieving PW 3 and PW 4 and the discussion in paragraph 13, 17,

21, 22 and 23 in the judgment and order impugned reveals that a

possible view is taken by the learned Sessions Judge.

13. I do not find that there is any compelling reason to

interfere with the judgment of acquittal. The view taken by the learned

Sessions Judge while reversing the judgment of conviction recorded by

the learned Magistrate, is a possible view and indeed is the only view

which could have been taken in the teeth of the evidence on record.

The view taken is certainly not perverse.

The appeal is sans merit and is rejected.

JUDGE

Adgokar/Nikhare/Belkhede