Bombay High Court
Navnath Ramrao Phad vs The State Of Maharashtra And Ors on 11 July, 2017
Bench: T.V. Nalawade
Cri. Revn.Appln.No.258/2000
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.258 OF 2000
Navnath s/o Ramrao Phad,
Age 24 years, Occ. Agriculture,
R/o Dharmapuri, Tq. Parali Vaijinath
District Beed. ... PETITIONER
VERSUS
1. The State of Maharashtra,
(Copy to be served on P.P.
High Court, Bench at Aurangabad)
2. Padmakar alias Bandu s/o Angad
Phad, Age 26 years, R/o Dharmapuri,
Tq. Parali Vaijinath, Dist. Beed.
3. Babu s/o Vithal Phad,
Age 30 years, Occu. and
R/o as above.
4. Balaji s/o Mokinda Phad,
Age 26 years, Occu. Driver,
R/o as above.
5. Sheshrao s/o Vithal Phad,
Age 56 years, Occu. Agriculture,
R/o as above.
6. Angad s/o Vithal Phad,
Age 46 years, Occu. and
R/o as above.
7. Shivaji s/o Mokinda Phad,
Age 28 years, Occu. and
R/o as above.
8. Sukhadeo s/o Vithal Phad,
Age 61 years, Occu. and
R/o as above. ... RESPONDENTS
.....
Shri S.P. Chapalgaonkar, Advocate for appellant
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Cri. Revn.Appln.No.258/2000
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Shri S.D. Ghayal, A.P.P. for respondent No.1/State
Shri B.S. Kudale, advocate for respondents N.2 to 5
.....
CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
DATED : 11th July, 2017.
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. This revision is directed against the judgment and
order of acquittal of the accused No.1 to 7 of the offences
punishable under Sections 147, 148 of the Indian Penal Code and
under Section 324, 325, 307 and 338 read with Section 149 of
the Indian Penal Code, passed by 4th Additional Sessions Judge,
Ambajogai in Sessions Case No.78/1994, dated 31/1/2000.
Respondents No.2 to 7 are original accused No.1 to 7
respectively. Petitioner is son of original informant late Shri
Ramrao Ambaji Phad.
2. Facts leading to institution of this revision are that,
accused No.1 to 7 were prosecuted for the offences punishable
under Sections 148, 148 of the Indian Penal Code and under
Sections 324, 325, 307 and 338 read with Section 149 of the
Indian Penal Code. Prosecution case in brief is that, informant
Ramrao Abaji Phad (P.W.2) was resident of village Dharmapuri
and he had three sons namely Ravindra, Patloba and Navnath
(P.W.3). In the month of December 1993, fair of Goddess
Cri. Revn.Appln.No.258/2000
Tuljabhavani was arranged at village Dharmapuri and at the eve
of this fair on 29/12/1993, competition of wrestling was arranged
and the wrestling ground was prepared in the field property of
Babu Dashrath Phad. Informant Ramrao (P.W.2), Sarpanch
Narhari (P.W.1), Navnath Phad (P.W.3) were also present in the
said wrestling ground, along with about 2500 villagers, to watch
that competition. Vyankati (P.W.5) was one of the panch along
with Angad Vithal Phad and other panchas. Even the accused
persons were present in that wrestling competition. Accused
No.1 Padmakar Angad Phad was one of the wrestler, whose
wrestling was started with Tukaram Munde (P.W.4), resident of
Badwani. That wrestling could not be completed within
reasonable time without any result. Therefore, Vyankati Phad
(P.W.5) went near the wrestler to separate them as the
competition was to be declared as without any result. That time,
accused No.1 Padmakar raised objection. Even Angad Phad took
part in that arguments and slapped Vyankati Phad across his
face. Thereafter Ramrao Phad (P.W.2), Maroti Dnyandeo Phad,
Prabhakar Dahiphale, Devidas Ramhake, Vaijnath Aba Phad,
Laxman and Navnath Ramrao Phad (P.W.3) rushed on the spot to
pacify the quarrel. That time, Angad Phad pelted stone and
injured Ramrao Phad (P.W.2). Accused No.7 Sukhadeo,
Sheshrao, Padmakar Phad (accused No.1) and other accused
started pelting stones towards the informant and his family
Cri. Revn.Appln.No.258/2000
members. Vyankati Phad was injured by Mukinda Dhondiba.
Navnath (P.W.3) sustained injuries due to blow of sharp article
inflicted by accused No.6 Shivaji. Accused No.2 also assaulted
by "Wakdi Tikura" to Ramrao Phad. Sarpanch Narhari Phad, one
Sidram Deokate and other villagers witnessed this occurrence.
Accused assaulted the informant and other persons on account of
previous enmity in between the parties. Therefore, Ramrao Abaji
Phad (P.W.2) lodged F.I.R. Exh.43 to Police Station, Parli on the
date of incident at about 17.20 Hrs. Injured were referred for
medical examination. Dr. Bhalchandra (P.W.6), Medical Officer,
Rural Hospital, Parli examined the injured Ramrao Phad, Navnath
Phad, Vyankati Phad and issued injury certificates (Exh.63 to
65). P.S.I. Sayyed Misbuwalla (P.W.8) conducted investigation
of this crime and prepared spot panchanama Exh.70 of the scene
of offence and seized 15 stones from the spot including two blood
stained stones. After completion of the investigation, charge
sheet was submitted against the accused in the Court of Judicial
Magistrate, First Class, Parli Vaijnath.
3. ` Offence punishable under Section 307 of the Indian
Penal Code being exclusively triable by Court of Sessions, this
case was committed to Sessions Court, Ambajogai.
4. The then 2nd Additional Sessions Judge framed
Cri. Revn.Appln.No.258/2000
charge (Exh.23) against accused No.1 to 7 for offences
punishable under Sections 147, 148 of the Indian Penal Code and
under Sections 324, 325, 307, 338 read with Section 149 of the
Indian Penal Code. Accused pleaded not guilty and claimed trial.
5. Prosecution examined total 9 witnesses. Defence of
the accused was of total denial. According to accused, on the
date and time of incident, the complainant and his friends also
assaulted the accused persons and other witnesses by pelting
stones and thereby caused even death of Mukinda Phad. Other
party is prosecuted for the same. This case is filed only as
counterblast.
6. After considering the evidence placed on record,
learned trial Court pleased to acquit accused No.1 to 7 of the
offences punishable under Sections 147, 148 of the Indian Penal
Code and under Sections 324, 325, 307, 338 read with Section
149 of the Indian Penal Code. Therefore, this Revision Petition
arises. Informant Ramrao Phad died before filing of the revision
petition and, therefore, it was filed by his son.
7. Learned Advocate for the petitioner submitted that,
though five eye witnesses were examined including three injured
witnesses, their testimony which was also corroborated by
Cri. Revn.Appln.No.258/2000
Medical Officer (P.W.6), was disbelieved by learned trial Court
without assigning proper reasons.
8. In reply, learned Advocate for the respondents/
accused submitted that, the testimonies of so called eye
witnesses are totally inconsistent with their statements before
the Police. He pointed out that, Medical Officer (P.W.6) did not
mention nature of the injuries in injury certificates (Exhibits 63 to
65). Learned defence counsel submitted that, when the mob
assembled on the wrestling ground to see the wrestling
competition, it cannot be held that there was assembly of
persons for unlawful purpose and in furtherance of common
object of that assembly simple or grievous hurt was caused to
anybody.
9. At the outset, we must observe that, inimical terms in
between parties is an admitted fact. Even it is not disputed that
cross criminal cases were filed against both the parties.
Therefore, we have to scrutinize the evidence of these all inimical
witnesses with close scrutiny and carefully.
10. Though accused persons are charged under Sections
147, 148 and under other Sections of Indian Penal Code, read
with Section 149 of the Indian Penal Code, it cannot be ignored
Cri. Revn.Appln.No.258/2000
that, including accused and prosecution witnesses, nearabout
2500 villagers gathered on the spot to watch the wrestling
competition. Thus, the object of both the parties and other
villagers was to watch the wrestling competition. Therefore, by
no stretch of imagination it can be said that unlawful assembly
was found to fulfill some unlawful object. So also, in above
circumstances, the object of the so called assembly cannot be to
cause hurt or grievous hurt to anybody. In other words, it
cannot be said that, common object of their assembly was to
cause hurt or grievous hurt to any person. Therefore, the charge
under Sections 147, 148 of the Indian Penal Code fails. So also,
all the accused persons cannot be roped with the aid of Section
149 of the Indian Penal Code.
11. Another important aspect is that, though charge is
framed under Section 325 of the Indian Penal Code, i.e. for
causing grievous hurt. From the evidence of Dr. Bhalchandra
(P.W.6), it emerges that, two contusions were sustained by
Ramrao Phad and one contused lacerated wound on upper eye lid
and two abrasions were sustained by Navnath Phad. Medical
Officer nowhere says that, these injuries were grievous in nature.
From the testimony of Dr. Bhalchandra (P.W.6), it emerges that,
Vyankati Vaijnath Phad (P.W.5) sustained one contused lacerated
wound below right eye and two contusions on left wrist and on
Cri. Revn.Appln.No.258/2000
right deltoid. The Medical Officer (P.W.6) opined that, the
contused lacerated wound below eye may be endangerous to life.
However, from his cross-examination, it emerges that, he has
not mentioned on which upper eye lid the injury to Navnath was
found and he has not mentioned the nature of injury sustained
by Vyankati Phad (P.W.5). All injury certificates (Exh.63 to 65)
show that the medical officer did not take pains to note down the
nature of injuries sustained by the injured persons. Thus, by no
stretch of imagination it can be held that on the basis of evidence
of medical officer (P.W.6), prosecution can establish that
Vyankati Phad sustained the grievous hurt or any prosecution
witness sustained grievous hurt. Thus, charge under Section 325
of the Indian Penal Code fails.
12. Now turning to the oral evidence of all prosecution
witnesses, it must be noted that, the prosecution has examined
five eye witnesses. If the oral evidence of these witnesses is
scrutinized along with evidence of investigating officer Sayed
(P.W.8) and A.S.I. Gaisamudre (P.W.9), who received F.I.R.
(Exh.43), it becomes crystal clear that the oral testimony of
each eye witnesses regarding the actual occurrence of incident is
totally inconsistent with their respective statements before the
police. Therefore, though each witness tried to place on record
that accused No.1 to 7 caused injuries to particular prosecution
Cri. Revn.Appln.No.258/2000
witnesses by pelting stones, their evidence cannot be treated as
trustworthy, which is totally in variance with their statements
before the police. Even the testimony of informant Ramrao
(P.W.2) is not in consonance with recitals of the F.I.R. (Exh.43).
Therefore, admittedly when both parties are on inimical terms,
on the basis of inconsistent testimony of these inimical
witnesses, prosecution cannot establish guilt of the accused
beyond reasonable doubt. Apart from these inimical witnesses,
even evidence of Sarpanch Narhari (P.W.1) and Tukaram Munde
(P.W.4) who was the wrestler against accused No.1, is in conflict
with their respective statements before the police on material
particulars. Therefore, the evidence placed on record by
prosecution in the form of testimony of five eye witnesses cannot
be relied upon to base the conviction of the accused.
13. On the other hand, even in the examination-in-chief
of Narhari (P.W.1) it has been brought on record that, at the
time of occurrence, there was chaos and, therefore, police
reached on the spot and there was "lathi charge" by the police.
Other witnesses have also brought on record that there was
chaos in public and when pelting of the stones was started,
within few minutes police reached on the spot and caning was
started to disperse the rioting persons. Therefore, possibility
cannot be ruled out that the injured persons might have
Cri. Revn.Appln.No.258/2000
sustained injuries due to blows of sticks inflicted by police
personnel at the time of caning. Even Dr. Bhalchandra (P.W.6)
has admitted in his cross-examination that the injuries sustained
by the witnesses are possible due to hard and blunt object like
stick. Thus, prosecution itself has brought on record the second
probability that the prosecution witnesses might have sustained
injuries during the caning by police while dispersing the rioting
mob. When such two probabilities arise, benefit of doubt goes in
favour of the accused persons.
14. Accordingly, we have come to the conclusion that,
after careful scrutiny of the evidence of prosecution witnesses,
the learned trial Court has rightly acquitted the accused persons.
By no stretch of imagination it can be said that the view taken by
the trial Court is impossible in the facts and situation of this case.
It follows that, this revision fails and deserves to be dismissed.
Accordingly, we pass the following order :
ORDER
(i) Criminal Revision Application No.258/2000 is dismissed.
(ii) Under Section 437-A of the Criminal Procedure Code,
respondents No.2 to 8 shall execute before the trial
Court bail bonds with sureties for the amount of
Rs.5000/- (Rupees five thousand) each to appear
Cri. Revn.Appln.No.258/2000
before the Supreme Court as and when notices are
issued to them in respect of any proceedings filed
against this judgment, and the said bail bonds shall
remain in force for a period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
