Bombay High Court
The State Of Maharashtra vs Babasaheb Adhav & Ors on 19 December, 2017
Bench: T.V. Nalawade
(1) Cri. Appeal No. 506/2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 506 of 2001
The State of Maharashtra
Through : Public Prosecutor
High Court Bench at
Aurangabad. .. APPELLANT
(Ori. Complainant)
VERSUS
1. Babasaheb Vishwanath Adhav,
Age : 18 years,
2. Bhausaheb Rangnath Adhav,
Age : 30 years,
3. Haridas Vishwanath Adhav,
Age : 24 years,
4. Ramdas s/o Vishwanath Adhav,
Age : 28 years,
All resident of Manori,
Tq. Rahuri, Dist.Ahmednagar. .. RESPONDENTS
(Ori. accused)
----
Mr.S.J.Salgare, APP for Appellant/State
Mr. S.S.Bora, Advocate, for respondent Nos. 1 to 4.
----
CORAM : T.V. NALAWADE AND
S.M. GAVHANE, JJ.
RESERVED ON : 12th September, 2017
PRONOUNCED ON : 19th December, 2017
(2) Cri. Appeal No. 506/2001
JUDGMENT : [ PER : S. M. GAVHANE, J.]
This appeal is directed against the Judgment and
Order dated 17-08-2001 passed by Ad-hoc Assistant
Sessions Judge, Ahmednagar, in Sessions Case No. 81 of
2000, thereby acquitting the respondents-accused No. 1 to
4 of the offences punishable under Sections 307, 323, 504
and 506 (I) read with Section 34 of the Indian Penal Code
( For short, 'the IPC')
2] Facts of the prosecution case are as under :-
(A) The complainant Jamsher Gulab Shaikh
(P.W.3), at the relevant time of the incident, was
residing at Manori, Taluka Rahuri, District Ahmednagar
with his father Gulab, mother Madinabi, brother Mansoor
Shaikh (P.W.6), his wife, brother's wife, nephew and
niece in the joint family and was doing agricultural
work. The accused are also residence of the same
village.
(B) It is alleged that Mansoor Shaikh (P.W. 6)
had given Rs. 2,500/- to one Bharat Ramnnath Wagh from
village Manori to bring T.V. Set. Accordingly, said
(3) Cri. Appeal No. 506/2001
Bharat Wagh had given portable T.V. The said T.V. had
become out of order within twenty days. Therefore,
Mansoor Shaikh (P.W.6) said to Bharat Wagh to take away
said T.V. as it was out of order. As Mansoor Shaikh
demanded money back from Bharat Wagh, he had come to the
complainant with accused No.1 Babasaheb Vishwanath Adhav.
At that time, accused No. 1 on intervening said Mansoor
Shaikh that he would get money within 2 to 3 days and
went away. Even after 8 to 9 days there from, Bharat
Wagh did not give money to Mansoor Shaikh. On 23-03-
2000, there was marriage procession of one Thorat and at
that time accused No. 1 met Mansoor Shaikh and Mansoor
Shaikh said accused No. 1 that he (accused No.1) had
taken guarantee of returning money of T.V. but still
Bharat Wagh has not given money. On that count, there was
hot talk between Mansoor Shaikh and accused No.1 and
accused No. 1 said Mansoor Shaikh that he would not get
money of T.V. and he could do, whatever he can do and
said that he would see him and the complainant was
present at that time. The complainant said accused No. 1
(4) Cri. Appeal No. 506/2001
why he was quarreling and said him that he should tell
Bharat Wagh to give money of T.V. Thereupon, the
complainant and his brother Mansoor Shaikh went to their
house.
(C) It is further alleged that on 24-03-2000,
the complainant and his mother worked in the field
throughout day and they had come to house in the evening
at 7.30 p.m. and while they were sitting in front of
their house at about 08.15 p.m., their neighbour Kabir
Mohammad Yakub Shaikh had come to their house and said
that he was called by accused No.1 in front of
Grampanchayat Office on account of quarrel between his
brother Mansoor Shaikh and accused No. 1 on account of
money of T.V. Thereupon, the complainant alongwith said
Kabir Mohammad Shaikh went towards Grampanchayat Office.
Accused Nos. 1 to 4, Bhausaheb Vithal Adhav, Bharat Wagh
and Gorakh Tailor were present there. He asked accused
no. 1 why he has been called and while he was saying so,
his (complainant's) mother came there and she said
accused No. 1 to give money of T.V. When she said so,
(5) Cri. Appeal No. 506/2001
accused No. 1 reacted arrogantly, and therefore, the
complainant caught hold neck of accused No.1. Therefore,
accused No. 1 gave kick blows on his stomach and fell him
down. Meanwhile, accused No. 1 gave Gupti blow on his
stomach which was on his waist. Thereupon, the
complainant sat down and while he was sitting, accused
No. 1 gave Gupti blow on left shoulder of the
complainant. So also, accused No. 3 Haridas Adhav hit
dumbbells of chain on his head, accused No. 2 Bhausaheb
Adhav abused and slapped him and Gokuldas Vishwanath
Adhav gave him fist and kick blows. When the
complainant's mother was fallen on the person of the
complainant and started shouting, the assailants ran
away. There was bleeding from the stomach of the
complainant. His brother Mansoor Shaikh (P.W.6) came
there and he had taken the complainant to Rahuri Police
Station on motor-cycle. Immediately, he was taken to
Hospital of Municipal Council, Rahuri, by police jeep.
Doctor treated him and he was taken to the Government
Hospital, Ahmednagar, by Ambulance as he was conscious.
(6) Cri. Appeal No. 506/2001
It appears that Police Head Constable of Rahuri Police
Station had come in the Government Hospital, Ahmednagar,
in the night on 24-03-2000 and recorded complaint as
above of the complainant. Said complaint was sent to
Police Station, Rahuri and on the next day i.e. on
25-03-2000 at 11.00 a.m., Crime No. 45 of 2000 for the
offences punishable under Sections 307, 323, 504 read
with Section 34 of the IPC was registered against the
assailants and the investigation was started.
(D) During the investigation, A.P.I. Gaikwad
(P.W.12) went to village of the complainant/injured and
prepared panchanama of spot of incident (Exh.32). He
seized one magnet beads, chain from the spot, which was
shown by Fakir Mohomad Yakub Shaikh. On 26-03-2000 while
accused No. 3 Haridas was in police custody, the
Investigating Officer seized clothes on the person of
said accused as well as clothes on the person of accused
No. 1 Babasaheb under separate panchanamas. The clothes
on the person of complainant/injured having blood stains
were seized on 27-03-2000 under panchanama (Exh.18). On
(7) Cri. Appeal No. 506/2001
28-03-2000 accused No.3 Haridas while in custody, made
statement that he would produce dumbbells from his house
as per Exh. 46 and it was seized under panchanama Exh.47.
On the same day, accused No. 1 in presence of panchas
made memorandum statement Exh. 48 that he would produce
the knife from his house, and said knife was seized under
panchanama Exh.49. Statements of witnesses were also
recorded.
(E) It appears that when the complainant had
been to the police station Rahuri on 24-03-2000, he was
referred to the Medical Officer in Rahuri Municipal
Hospital and he examined the complainant and after
providing him first aid issued the certificate (Exh.42)
describing the injuries on the person of the complainant.
The Investigating Officer sent the seized articles to the
Chemical Analyser with letter for analysis and opinion .
He also issued letter to the Tahsildar to depute
competent person to draw a map of spot of incident.
3] After completion of the investigation, the
Investigating Officer API Gaikwad submitted the charge-
(8) Cri. Appeal No. 506/2001
sheet in the Court of Judicial Magistrate First Class,
Rahuri, against the accused for the offences punishable
under Sections 307, 323, 504 and 506 (I) read with
Section 34 of the IPC. The learned Magistrate committed
the case to the Sessions Court, Ahmednagar, as the
offence under Section 307 of the IPC was exclusively
triable by the Court of Session, which was then made over
to the 4th Adhoc Assistant Sessions Judge, Ahmednagar.
4] Charge was framed against the accused for the
offences punishable under Sections 307,323, 504 and 506
(I) of the IPC individually and in furtherance of their
common intention read with Section 34 of the IPC, to
which the accused pleaded not guilty and claimed to be
tried. Their defence is denial. They have not examined
any witness in defence.
5] To prove charge against the accused, the
prosecution has examined in all twelve witnesses and
relied upon the panchanamas and injury Certificate of the
complainant referred to above. Considering the evidence
(9) Cri. Appeal No. 506/2001
adduced by the prosecution, the Trial Court held that the
prosecution has failed to prove the offences against the
accused with which they were charged and acquitted them
of the said offences by the Judgment and Order dated
17-08-2001. Therefore, this appeal against acquittal by
the appellant/State.
6] We have heard the learned APP appearing for the
appellant and the learned advocate appearing for the
respondents/accused and with their assistance, we have
perused the evidence adduced by the prosecution. We have
also perused the impugned Judgment and Order.
7] Since this is an appeal against the acquittal it
is necessary to refer the law laid down by the Apex Court
regarding approach of the appellate Court in dealing with
the appeal against the acquittal in the case of Murlidhar
alias Gidda and another Vs State of Karnataka reported in
(2014) 5 SCC 730, wherein in para No.12 the Apex Court
has held thus:
"12. The approach of the appellate Court in the
appeal against acquittal has been dealt with by
( 10 ) Cri. Appeal No. 506/2001
this Court in Tulshiram Kanu Vs State, AIR 1954
SC 1, Madan Mohan Singh Vs State of U.P., AIR
1954 SC 637, Atley Vs State of U.P., AIR 1955 SC
807, Aher Raja Khima Vs State of Saurashtra, AIR
1956 SC 217, Balbir Singh Vs State of Punjab,
AIR 1957 SC 216, M.G. Agrawal Vs State of
Maharashtra, AIR 1963 SC 200, Noor Khan Vs State
of Rajasthan, AIR 1964 SC 286, Khedu Mohton Vs
State of Bihar, (1970) 2 SCC 450, Shivaji
Sahabrao Bobade Vs State of Maharashtra, (1973)
2 SCC 793, Lekha Yadav Vs State of Bihar, (1973)
2 SCC 424, Khem Karan Vs State of U.P., (1974) 4
SCC 603, Bisan Singh Vs State of Punjab, (1974)
3 SCC 288, Umedbhai Jadavbhai Vs State of
Gujrat, (1978) 1 SCC 228, K. Gopal Reddy Vs.
State of A.P., (1979) 1 SCC 355, Tota Singh Vs
State of Punjab, (1987) 2 SCC 529, Ram Kumar Vs
State of Haryana, 1995 Supp (1) SCC 248, Madan
Lal Vs. State of J & K, (1997) 7 SCC 677,
Sambasivan Vs State of Kerala, (1998) 5 SCC 412,
Bhagwan Singh Vs State of M.P., (2002) 4 SCC 85,
Harijana Thirupala Vs Public Prosecutor, High
Court of A.P., (2002) 6 SCC 470, C. Antony Vs
K.G. Raghavan Nair, (2003) 1 SCC 1, State of
Karnataka Vs K. Gopalkrishna, (2005) 9 SCC 291,
State of Goa Vs Sanjay Thakran, (2007) 3 SCC 755
and Chandrappa, Chandrappa Vs State of
Karnataka, (2007) 4 SCC 415. It is not necessary
to deal with these cases individually. Suffice
it to say that this Court has consistently held
that in dealing with appeals against acquittal,
the appellate Court must bear in mind the
following : (i) There is presumption of
innocence in favour of an accused person and
such presumption is strengthened by the order of
acquittal passed in his favour by the trial
Court, (ii) The accused person is entitled to
the benefit of reasonable doubt when it deals
with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate Court
( 11 ) Cri. Appeal No. 506/2001
in considering the appeals against acquittal are
as extensive as its powers in appeals against
convictions but the appellate Court is generally
loath in disturbing the findings of fact
recorded by the trial Court. It is so because
the trial Court had an advantage of seeing the
demeanor of the witnesses. If the trial Court
takes a reasonable view of the facts of the
case, interference by the appellate Court with
the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial
Court are palpably wrong or based on erroneous
view of the law or if such conclusions are
allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of
the appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re-
appreciation and re-evaluation of the evidence
is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate Court in the
judgment of the trial Court."
8] Case of the prosecution is that, on 24-03-2000,
accused No. 1 in furtherance of common intention with
accused Nos. 2 to 4 assaulted the complainant-Jamsher
Shaikh (P.W.3) with Gupti on his abdomen, head and
shoulder and caused him injuries, that accused No. 2 in
furtherance of common intention with other accused
assaulted the complainant by means of dumbles of chain
( 12 ) Cri. Appeal No. 506/2001
and accused Nos.3 and 4 in furtherance of common
intention of other accused assaulted the complainant with
fist blows, the accused in furtherance of their common
intention intentionally insulted the complainant and they
had threatened the complainant with injury to his person
with intent to cause alarm to him.
9] To prove the above facts, the prosecution has
relied upon evidence of following categories ;
(a) The evidence of the complainant-Jamsher Shaikh
(P.W.3), his brother Mansoor Shaikh (P.W.6), their mother
Madina Shaikh (P.W.7), PHC Dattatraya Shirke (P.W.9) and
Shaikh Mohd. Yakub (P.W.10).
(b) The evidence of Dr. Rajendra Vairagar (P.W.11)
and Injury Certificate (Exh.42) of the complainant.
(c) Memorandum Statement (Exh.48) of accused No. 1
Babasaheb Adhav and panchanama (Exh.49) regarding seizure
of knife at his instance, and Memorandum Statement
(Exh.46) of accused No. 3 Haridas and seizure of iron
dumbbells of chain at his instance as per panchanama
( 13 ) Cri. Appeal No. 506/2001
(Exh.47).
(d) Panchanamas of seizure of clothes on the person
of accused No. 1 Babasaheb, accused No. 3 Haridas and the
complainant and report of the Chemical Analyser (Exh.64).
10] Now coming to the oral evidence, the evidence of
the complainant Jamsher Shaikh (P.W.3) who is injured is
that, he knows all the accused. They are from his
village. Mansoor Shaikh (P.W.6) and Madinabhi (P.W.7)
are his brothers and mother. The incident took place on
24-03-2000. His brother had given money to Bharat Wagh
for purchasing portable T.V. of Rs.2500/-. Bharat Wagh
had provided T.V. and he had given guarantee of said T.V.
But within twenty days the said T.V. became out of order,
Therefore, his brother Mansoor made a demand of money to
Bharat Wagh to pay the amount and take back the T.V.
After 7-8 days Bharat Wagh had come to his house
alongwith Babasaheb Adhav (accused No.1) to settle the
dispute. On 23-03-2002 his brother Mansoor met accused
No. 1 in the procession and demanded money from accused
( 14 ) Cri. Appeal No. 506/2001
No. 1 but there was settlement on that day.
11] As regards the incident in question P.W. 3- the
complainant has stated that on 24-03-2000 he reached to
his house from the field in the evening. At about 8.15
p.m. Fakira Mohd. Yakub Shaikh (P.W.10) came to his
house. He informed him that some dispute is going on
between Mansoor (P.W.6) and Babasaheb (accused No.1) on
the ground of refund of T.V. amount and he (witness) was
called in front of Grampanchayat. Therefore, he reached
in front of Grampanchayat. Talk took place between
accused No. 1 and him. He suggested accused No. 1 to pay
the amount of T.V. His brother had come there from
backside. His mother also told accused No. 1 to pay the
amount. Accused No. 1 told his mother, "to remove what
she wants to remove". Therefore, he caught hold neck of
accused No.1. Accused No. 1 gave him kick blow of his
abdomen. Accused No. 1 then fell him down and inflicted
a knife blow on his left side on the stomach and on
backside of left shoulder. The brother of accused No. 1
( 15 ) Cri. Appeal No. 506/2001
i.e. Haridas (accused No.3) assaulted him by dumbbells of
chain. The brothers of accused No.1 abused him. Ramdas
Vishwanath (accused No.4), Gokul Gangadhar and Raosaheb
Gangadhar abused him. Accused No.1 slapped him on his
face. P.W. 1 further stated that he had received the
bleeding injury on his stomach. He stated that his
father fell on his person to save him. His mother was
saying not to assault him. Mansoor (P.W.6) came there
and they came to Rahuri police station on motor-cycle.
He informed name of accused No. 1 who assaulted him to
P.S.I. and thereafter he was shifted to Municipal
Hospital, Rahuri and he was kept there for 15 minutes,
after providing first aid he was shifted to Civil
Hospital, Ahmednagar and he was in the said Hospital till
03-04-2000.
12] P.W. 3 further deposed that while he was
admitted in Civil Hospital, Ahmednagar, police inquired
to him about the incident and information given by him
was reduced into writing and said writing/complaint
( 16 ) Cri. Appeal No. 506/2001
(Exh.20) shown to him is the same. On that day he was
wearing greenish colour pant, shirt having white lining,
brown coloured banian and due to incident his shirt
(Article-1), banian (Article-3) had a cut and they had
blood stains/marks. So also, he identified said articles
and knife (Article-4).
13] In the cross-examination of P.W.3 admitted that,
it did happen on that day that Bhausaheb Rangnath
(accused No.2 ) and Ramdas Vishwanath (Accused No.4)
abused him and beat him and therefore, he sustained
injuries on his abdomen, on the shoulder of left hand and
on his head. He stated that he told the names of such
persons who assaulted him to Mr. Gaikwad who recorded his
statement. But he could not assign the reason why the
said fact is not mentioned in his complaint Exh. 20. He
also admitted that transaction which took place with
Bharat Wagh in respect of T.V. is not financially
connected with the accused persons and that prior to
intervention of the accused he had a good and cordial
( 17 ) Cri. Appeal No. 506/2001
relations with the accused persons. He stated that
Babasaheb (accused No.1) had told that Mr. Bharat Wagh
would pay the amount and if he did not pay, he would pay
the same. He stated that at the time of incident Bharat
Wagh was standing near grampanchayat and he and his
relatives did not ask Bharat Wagh in respect of refund of
the amount. He stated that when the scuffle took place
10 to 15 persons were present there. Out of them some
were the shopkeepers and some persons had gathered from
the village. He denied that he and his brother started
beating Babasaheb (accused No.1) and that he was fallen
down during scuffle and received injuries to his abdomen
due to piece of glass or tin piece. So also he denied
that, he was fallen down for 2 to 3 occasions and
received injury to his shoulder. He admitted that, at
the time of lodging complaint Exh. 20, he had told Gupti
as a weapon. He denied that he is deposing false that
first Babasaheb (accused No.1) gave kicks on his abdomen
and then inflicted a blow of gupti on his abdomen and
shoulder. So also he denied that he is deposing false
( 18 ) Cri. Appeal No. 506/2001
that Haridas Vishwanath (accused No.3) assaulted him by
dumbbells on his head. He has denied that he is deposing
false that Babasaheb and another accused slapped on his
face and abused him.
14] The complaint/F.I.R. Exh. 20 which is statement
of P.W.3 recorded in Civil Hospital while P.W. 3 was
admitted in the said Hospital in injured condition shows
that the incident took place on 24-03-2000 at about 8.15
p.m. and the material recitals of the said complaint are
that P.W. 3 had caught hold neck of Babasaheb (accused
No.1) and immediately accused No. 1 gave kick blows on
his abdomen and, therefore, he was fallen down. Then
accused No. 1 gave blow of sword stick on his (P.W.3's)
abdomen and so also he gave blow of sword stick on his
left shoulder. So also Haridas Vishwanath (accused No.3)
gave blow of dumbbells on his head. Bhausaheb (accused
No.2) abused and assaulted him and Gokuldas Vishwanath
Adhav started giving him fist blows. As referred earlier,
P.W. 3 has deposed in accordance with above contents of
( 19 ) Cri. Appeal No. 506/2001
the complaint as regards assault on him by accused Nos. 1
and 3. However, as referred earlier in the cross-
examination he admitted that accused No. 2 Bhausaheb and
accused No. 4 Ramdas abused him and beat him and
therefore he sustained injuries on his abdomen, on the
shoulder of left hand and on his head. As referred
earlier he also stated that he has told in respect of
said role of accused Nos. 2 and 4 to Mr. Gaikwad when
police recorded his statement. Therefore the evidence of
P.W. 3 is not consistent as to who assaulted him and
caused him injuries on abdomen, shoulder and head.
Naturally, therefore, his evidence is not believable to
hold that either accused Nos. 1 and 3 assaulted him as
deposed by him in examination-in-chief or that accused
Nos. 2 and 4 assaulted him as deposed by him in the
cross-examination. So also as referred earlier, he
stated that he was assaulted by knife whereas in the
complaint Exh.20, he stated that he was assaulted by
accused No.1 by gupti. There is difference between knife
and gupti. Therefore, also evidence of P.W. 3 is not
( 20 ) Cri. Appeal No. 506/2001
sufficient to infer that either accused Nos. 1 and 3 or
accused Nos. 2 and 4 assaulted him and caused him
injuries.
15] The evidence of Mansoor Shaikh (P.W.6) who is
brother of P.W.3 is that incident took place on 24-03-
2000 at about 7.30 p.m. in front of grampanchayat office,
Manori. He came there. He demanded his money to
Babasaheb accused No. 1. Accused No. 1 told him that he
would not pay the amount and to do whatever he likes.
Hence, he went ahead. Accused No. 1 asked Fakir Mohammad
Yakub Shaikh (P.W.10) to call his brother. After 10
minutes his brother came there. His brother (P.W.3) told
accused No. 1 to pay amount of T.V. as he had acted as a
mediator. When the talk was going on between accused No.
1 and P.W. 3 his brother, he was standing at a distance
of 100 to 150 ft. At that time his mother (P.W.7) was
present there. Further he deposed that, thereafter he
heard the shouts. Hence he reached on the spot of
incident on motor-cycle, he noticed his brother Jamsher
(P.W.3) with bleeding injuries and he also noticed
( 21 ) Cri. Appeal No. 506/2001
injuries on his left abdomen, left shoulder on backside,
left side of the head and left cheek. His brother had
bleeding injuries on his abdomen, head and shoulder.
Then he lifted his brother and sat him on the motor-cycle
with the help of 2-3 persons and took him to Rahuri Civil
Hospital on motor-cycle. After some first aid treatment
in the Municipal Hospital, Rahuri, he was taken to Civil
Hospital Ahmednagar by Ambulance.
16] In the cross-examination P.W.6 could not assign
reason regarding absence of above facts in his statement
before police and therefore, his above referred evidence
amounts to material omission in his statement before
police and an improvement while deposing before the
Court. Moreover, in the cross-examination, he stated
that he did not take part in the actual scuffle and
stated that it was not happened that he received injury
during actual scuffle. In such circumstances and when he
has not stated that he had seen either accused No. 1
Babasaheb or accused No. 3 Haridas in assaulting his
brother P.W. 3 or accused No. 2 Bhausaheb or accused No.
( 22 ) Cri. Appeal No. 506/2001
4 Ramdas in assaulting his brother P.W. 3 and when he has
only stated that he had seen injuries to abdomen,
shoulder and head of his brother P.W. 3 his evidence is
not sufficient to infer that any of the accused has
caused injury either on abdomen, shoulder or head of
P.W.3 as alleged by the prosecution. Admittedly, he is
brother of P.W.3, and therefore he is an interested
witness. Therefore, his evidence is not believable.
17] Madina Shaikh (P.W.7) who is mother of P.W. 3
complainant has stated that P.W.3 and P.W. 6 are her
sons. Incident took place prior to 1,1/4 years in front
of grampanchayat of village Manori. She deposed that
Yakub Fakir (P.W.10) had come to call and hence Jamsher
(P.W.3) had gone and she followed him. She stated that
she noticed Jamsher while talking with accused No.1
Babasaheb. Accused No. 1 Babasaheb told P.W. 3 that he
would not pay amount and to do whatever he likes.
Accused No. 1 caught hold neck of P.W. 3 and gave blows
of knife to P.W.3. P.W. 3 received injuries on his left
abdomen and left shoulder. She stated that she
( 23 ) Cri. Appeal No. 506/2001
intervened and she was assaulted by Haridas (accused
No.3) by dumbbells. Said accused also assaulted her son
(P.W.3) by dumbbells. She deposed that Bhausaheb
(accused No.2) assaulted her by blows and kicks. P.W. 3
sustained bleeding injuries.
18] In the cross-examination, P.W. 7 has stated that
she stated to police that Babasaheb (accused No.1) told
her son (P.W.3) that he would not pay amount and to do
whatever he likes. She could not assign reason of
absence of said facts in her statement before police.
Moreover, she stated that she stated to police that
accused No. 1 caught hold neck of her son (P.W.3). But
she could not assign reason of absence of same in her
statement before police. Moreover, she stated that at
the time of recording her statement by police, she had
disclosed to police that Haridas (accused No.3) assaulted
her by dumbbells and Bhausaheb (accused No.2) gave her
hand blows and kicks, but she could not assign reason of
absence of said fact in her statement before police.
Thus, evidence of P.W. 7 in respect of above facts is
( 24 ) Cri. Appeal No. 506/2001
omission in her statement before police and improvement
while deposing before the Court. Therefore, her evidence
that accused No.1 said P.W.3 that he would not pay
amount, he caught hold neck of P.W. 3 and regarding
involvement of accused Nos. 2 and 3 in assaulting her is
not believable. Another aspect to be noted is that
according to her Babasaheb (accused No.1) assaulted her
son P.W. 3 with knife while as referred earlier P.W. 3 in
his cross-examination stated that it did happen that
Bhausaheb (accused No.2), Ramdas (accused No.4) abused
and beat him and, therefore he sustained injuries on his
abdomen, on the shoulder of left hand and on his head.
Therefore, there is no consistency in the evidence of
P.W. 3 and P.W.7 as regards the involvement of accused in
causing injuries to P.W.3, and, therefore, evidence of
P.W. 7 that Babasaheb (accused No.1)caused injuries to
abdomen, shoulder and head of P.W. 3 is not believable.
19] Dattatraya Shirke (P.W.9) is Police Head
Constable who was attached to Rahuri Police station at
the time of incident. His evidence is that, he recorded
( 25 ) Cri. Appeal No. 506/2001
complaint Exh.20 of the injured P.W. 3 Jamsher in Civil
Hospital, Ahemednagar. According to him, contents of
complaint Exh. 20 are correct. He is not eye witness to
the incident. Therefore, his evidence is of no help to
the prosecution.
20] Shaikh Fakir Shaikh Mohammad Yakub (P.W.10) has
deposed that he knows complainant P.W. 3 and the accused
persons. The incident took place in front of Manor
Grampanchayat. The dispute was going on between Babasaheb
(accused No.1) and Mansoor (P.W.6) in respect of T.V.
amount. At that time Mansoor called him and directed him
to go to his house and call P.W. 3 Jamsher. Accordingly
he went to inform Jamsher. Jamsher (P.W.3) went with him
in front of grampanchayat office. As regards incident he
deposed that at that place the talk was going on between
Babasaheb (accused No.1) and Jamsher (P.W.3), accused no.
1 told P.W. 3 that he would not pay the money. The
mother of Jamsher (P.W.3) had also come there. She also
asked Babasaheb (accused No.1) that he acted as a
mediator in the transaction and he should pay amount of
( 26 ) Cri. Appeal No. 506/2001
the T.V. Babasaheb (accused No.1) told Madina, mother of
P.W. 3 that he would not pay amount and to do whatever
she likes. Jamsher (P.W.3) became angry and caught hold
neck of Babasaheb (accused No.1) , other accused persons
at once started to beat P.W.3. Haridas (accused No.3)
assaulted by knife and Ramdas (accused No.4) and
Bhausaheb (accused No.2) gave fist blows. Accused No. 1
Babasaheb took out a knife from his pocket and inflicted
it on the abdomen of Jamsher (P.W.3) and P.W. 3 received
injuries on left side of abdomen and left shoulder.
21] In the cross-examination he (P.W.10) stated
that, since the time of the incident till 28th, he was in
Civil Hospital, Ahmednagar, with Jamsher (P.W.3) and
during that period police had come to Civil Hospital on
many occasions to record their statement. He admitted
that police did not inquire to him prior to 28th and
prior to said date he did not inform anything to police
on his own accord. He admitted that complainant Jamsher
(P.W.3) is the son of his maternal uncle and the niece of
complainant is his wife. He admitted that, at the
( 27 ) Cri. Appeal No. 506/2001
relevant time of incident the other villagers were also
present and witnessed the incident. He admitted that
when accused Nos. 2 to 4 assaulted complainant (P.W.3)
he did not try to intervene in the quarrel. He stated
that in the scuffle first accused Nos. 3 and 4 i.e.
Haridas and Ramdas started beating the complainant and
thereafter Ramdas (accused No.4) assaulted the
complainant. He denied that, no incident has taken place
in his presence and, therefore, he did not inform police
immediately. It is clear from the evidence of this
witness that he is close relative of P.W. 3 injured,
P.W.s' 6 and 7 and he did not disclose incident to police
at his own when he was in the hospital with P.W. 3 from
24-03-2000 till 28-03-2000. In fact, he should have
disclosed the incident to police at his own prior to
28-03-2000. He is interested witness and being relative
of P.W.s' 3, 6 and 7. Moreover, his evidence that,
accused No. 1 caused injuries to abdomen and left
shoulder of P.W. 3 is not consistent with the evidence of
P.W. 3 in the cross-examination that Bhausaheb (accused
( 28 ) Cri. Appeal No. 506/2001
No.2) and Ramdas (accused No.4) caused injuries on his
abdomen, shoulder and head. Therefore, no inference can
be drawn on the basis of evidence of this witness that
either Babasaheb (accused No.1), or Bhausaheb (accused
No.2) caused injuries on abdomen and shoulder of P.W.3 by
sword stick as alleged by the prosecution.
22] Admittedly, the prosecution has not examined
other villagers and shopkeepers who were present at the
spot of incident and who had opportunity to witness the
incident. Admittedly P.W.s' 3, 6, 7 and 10 are
relatives. In such circumstances, as there is no
consistency in the evidence of these witnesses as
observed earlier, their evidence is not sufficient to
infer that any of the accused individually or the accused
in furtherance of their common intention caused injuries
to abdomen, left shoulder and head of P.W.3.
23] Now coming to the medical evidence, Dr. Rajendra
Vairagar (P.W.11) has deposed that on 24-03-2000 he was
working as a Medical officer at Rahuri Municipal Hospital
( 29 ) Cri. Appeal No. 506/2001
and he examined Jamsher Gulab Shaikh (P.W.3) at about
10.00 p.m. on that day. He stated that P.W. 3 was
brought as a emergency case with the history of stab
injury at 08.00 p.m. and on examination, he noticed
following injuries on the person of P.W. 3 :-
Injury No. 1 :- Stab injury on left hypochondria
region, incised wound edges were clean cut of size
6" x 1" x abdomen deep with intestine popins
outside with omentum.
Injury No.2 :- Incised wound left scapular region 4"
x ½ " x ½". Edges were clean cut.
23-A] Dr.Vairagar further deposed that first injury
was grievous and can be caused by sharp edged weapon and
within 4 hours. So he transferred P.W. 3 to Civil
Hospital, Ahmednagar and issued certificate Exh.42.
According to him first injury was sufficient to cause
death if not treated earlier. He stated that both the
injuries can be possible due to article No. 4 knife which
was shown to him. In the cross-examination, he stated
( 30 ) Cri. Appeal No. 506/2001
that injury No. 1 is simple in nature. He stated that
the injury No. 1 was not possible if a person falls on a
sharp edged piece of tin against abdomen, because unless
and until sufficient perpendicular blow is given such
type of injury is not possible. He stated that injury
No. 2 is also not possible due to piece of tin or piece
of glass. He has denied that intentionally he is saying
that above injuries are not possible due to fall against
a piece of glass or piece of tin. Thus, nothing is found
in favour of the accused in the cross-examination of Dr.
Vairagar. Exh. 42 injury Certificate issued by Dr.
Vairagar also shows that injuries referred to above were
noticed by said doctor on the person of P.W.3. Thus, on
the basis of evidence of Dr. Vairagar and injury
Certificate Exh. 42, it can be said that on 24-03-2000
i.e. on the date of incident at the relevant time i.e. at
about 08.00 p.m. P.W. 3 sustained injuries mentioned in
the Certificate Exh. 42 and injury No. 1 referred to
above was sufficient to cause death if not treated
earlier. As observed earlier, oral evidence of P.W.s' 3,
( 31 ) Cri. Appeal No. 506/2001
6, 7 and 10 is not believable and sufficient to infer
that either accused No. 1 Babasaheb or accused No.2
Bhausaheb caused injuries to abdomen, and left shoulder
of P.W. 3. Therefore, above referred medical evidence is
of no help to the prosecution to state that injuries as
deposed by Dr. Vairagar and as mentioned in Certificate
Exh. 42 were caused to P.W. 3 by the accused individually
or in furtherance of their common intention.
24] Now coming to the circumstantial evidence as
per prosecution case, accused No. 1 made memorandum
statement Exh. 48 in presence of panchas Ramdas
Bhingardive (P.W.8), Ramesh Anna Gaikwad (P.W.4) and
Laxman Gaikwad, API Rahuri (P.W. 12) that he would
produce knife which was kept in wooden box in his house
and then it was seized at his instance as per panchanama
Exh. 49. Both P.W.s' 4 and 8 have not supported the
prosecution case as they have denied that accused No. 1
made statement as above and at his instance, knife
(Article No.4) was seized. P.W. 12 API Gaikwad, then PSI
Rahuri has stated about memorandum statement Exh. 48
( 32 ) Cri. Appeal No. 506/2001
allegedly made by Babasaheb (accused No.1) and seizure of
knife (Article-4) at his instance as per panchanama
Exh.49. However, as both panchas P.Ws. 4 and 8 have not
supported the prosecution case, the prosecution has
failed to prove memorandum statement (Exh.48) made by
accused No. 1 and seizure of knife at his instance as per
panchanama Exh.49. Therefore, it cannot be said that
knife Article No. 4 was used in the offence by the
accused No. 1 to cause injury to P.W.3.
25] The next circumstance relied upon by the
prosecution is that accused No. 3 Haridas Vishwanath
Adhav made statement Exh.46 that he would produce
dumbbells kept in his house and then at his instance
dumbbells was seized as per panchanama Exh. 47 in
presence of panchas by API Gaikwad (P.W.12). Panchas
Ramdas (P.W.8) and Ramesh Gaikwad (P.W.4) have not
supported the prosecution case as they have denied that
accused Haridas made statement as per Exh. 46 and at his
instance dumbbells was seized. API Gaikwad (P.W.12) has
of course stated regarding abovesaid memorandum statement
( 33 ) Cri. Appeal No. 506/2001
of accused No. 3 Haridas and that at his instance
dumbbells was seized from the house of said accused. But
as panchas P.W.s' 4 and 8 have not supported the
prosecution case the interested testimony of API Gaikwad
is not believable and sufficient to infer that the
accused No. 3 Haridas made memorandum statement Exh. 46
and at his instance the dumbbells was seized as per
panchanama Exh.47.
26] The next circumstance relied upon by the
prosecution is regarding seizure of clothes on the person
of accused No. 1 Babasaheb, accused No. 3 Haridas and
P.W. 3 the complainant Jamsher. As per panchanama Exh. 18
in presence of P.W.2 and other panch API Gaikwad seized
pant, banian and shirt of P.W. 3 on production of the
same by his brother P.W. 6 Mansoor Shaikh. Exh. 44
panchanama shows that clothes i.e. pant and shirt of
Haridas (accused No.3) were seized in presence of panchas
Vinayak Ohol and Vilas Shinde and Exh. 45 panchanama
shows that clothes i.e. pant, banian and Manila of
( 34 ) Cri. Appeal No. 506/2001
accused No.1 were seized in presence of abovesaid panchas
by PSI Gaikwad. P.W. 12 API Gaikwad has stated regarding
seizure of abovesaid clothes. Thus, seizure of above
clothes is proved. Exh.64 shows that human blood was
detected on Exhs. 1,2,3,4,5,8 and 9 i.e. knife, full
pant, Sando banian, full open shirt (torn), full pant,
sando banian and full Manila. But there is no material
to show that said human blood was of P.W.3, so as to
connect the accused with the injuries to P.W. 3 to say
that the accused are responsible for causing injuries to
P.W.3 Therefore, mere finding of human blood on the
abovesaid weapon and clothes as per C.A. report Exh.64 is
of no help to the prosecution to connect the accused with
the alleged offence.
27] For all the reasons discussed above, we hold
that the evidence adduced by the prosecution is not
sufficient to infer that on 24-03-2000 at about 08.15
p.m., the accused No. 1 in furtherance of common
intention with accused Nos. 2 to 4 caused the injuries on
abdomen, head and left shoulder of P.W. 3 Jamsher, the
( 35 ) Cri. Appeal No. 506/2001
accused No, 2 in furtherance of common intention with
accused Nos. 1, 3 and 4 voluntarily caused hurt to P.W. 3
and that the accused in furtherance of their common
intention intentionally insulted the complainant (P.W.3)
and that the accused in furtherance of their common
intention threatened complainant with injury to his
person with intent to cause alarm to him and as such
prosecution has failed to prove offences under Section
307, 323, 504 and 506(I) individually or in furtherance
of their common intention read with Section 34 of the IPC
against the accused beyond reasonable doubt. The Trial
Court has rightly held so and rightly acquitted the
accused of the aforesaid offences by the impugned
judgment and order. The view taken by the Trial Court is
reasonable and possible view. There is no error in
appreciating the evidence by the Trial Court. Therefore,
there is no justifiable ground to interfere with the
impugned judgment and order. Therefore, appeal being
devoid of merits the same is liable to be dismissed.
Accordingly we dismiss the same. Bail bonds of the
( 36 ) Cri. Appeal No. 506/2001
accused stand cancelled.
28] Mr.S.S.Bora, Advocate was appointed to represent
the accused/respondents. We appreciate his sincere
efforts in rendering able assistance during the course of
hearing the appeal, so as to arrive at proper conclusion.
We quantify his fees at Rs. 7500/- (Rupees Seven Thousand
Five Hundred only).
[S. M. GAVHANE, J.] [ T. V. NALAWADE, J.]
shp
