The State Of Mah.Thr.Pso Asegaon vs Namdeo Panduji Thakare And ...
2017 Latest Caselaw 2695 Bom

                                            1                         Cri Appeal 05 of 2006


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH : NAGPUR

                         CRIMINAL APPEAL NO. 05 of 2006



APPELLANT:-                             State of Maharashtra
                                        through Police Station Officer,
                                        Police Station, Asegaon.

                                        VERSUS

RESPONDENTS:-              1.           Namdeo Panduji Thakare,
(ACCUSED)                               aged about 60 yrs, Occ. Agril.

                           2.           Deepak Devidas Thakare,
                                        aged about 41 yrs,

                                        Both resident of Wasni Bk.
                                        Tq. Achalpur, Dist. Amravati.




Shri. M. M. Ekre, APP for State.
None for Respondent.
_____________________________________________________________________________________


                                 CORAM : MRS. SWAPNA JOSHI, J.

DATE : 01.06.2017.

Oral Judgment :

1. This appeal has been preferred against the Judgment and

order dated 11th November, 2005 delivered in Summery Case No.

668/2002 by the learned Judicial Magistrate First Class, Court No.2,

Chandur Bazar thereby acquitting the respondents for the offences

punishable under Sections 295, 504, 506 read with Section 34 of Indian

Penal Code.

2 Cri Appeal 05 of 2006

2. Heard learned APP Mr. Ekre for the State. Learned Counsel

for the respondents remained absent. With the assistance of learned

APP, I have gone through the entire record of the case, impugned

judgment and order.

3. The learned APP contended that the acquittal of the

respondents recorded in this case by the learned Magistrate is

perverse and illegal in as much as the learned Magistrate has failed to

consider the evidence of the eye-witnesses who were present at the

place of incident..

4. I have gone through the entire evidence. Prosecution has

examined in all 6 witnesses. PW-1, PW-2 and PW-3 are alleged eye-

witnesses who were present at the place of incident. PW-4 and PW-5

are the Panchas on the point of place of incident. They turned hostile

and did not support the prosecution case. PW-6 is the Investigating

Officer, who simply recorded the complaint of the complainant. No

other investigating officer has been examined by the prosecution.

5. The prosecution case in brief is that the complainant (PW-1)

was the Treasurer of Shri Sant Rangrao Maharaj Sansthan. On

25.05.2002 at around 02.30 p.m., the complainant along with some

other persons of the Sanstha were busy in work. At that time, accused

3 Cri Appeal 05 of 2006

persons came there and asked Ragrao Maharaj for keys of the Temple.

They also threatened him that if he did not hand over keys to them,

they would kill him. It is alleged that the accused No.1 snatched the

keys from Rangrao Maharaj and went inside the temple. They abused

Lord Ganesha, by inflicting kick blows to the idol. They threw away idol

of Lord Krishna which was placed on the idol of Lord Ganesha resulting

into breaking the idol of Lord Krishna into pieces. It is the case of the

prosecution that complainant Pramod Thakare along with Rangrao

Maharaj and others tried to resist accused from damaging the idols.

However, they could not succeed in it. The accused persons thereafter

left that place. They threatened Rangrao Maharaj to leave the temple

or face dire consequences. Due to the said act of the accused persons,

the religious feelings of the complainant were hurt. Therefore, he

lodged the complaint against the accused persons. The complaint was

registered, further investigation was carried out, statements of the

witnesses were recorded and charge-sheet was submitted in the

learned Magistrate Court.

6. As per the testimony of PW-1, at around 02.00 p.m., he was

sitting in one room along with Rangrao Maharaj and Vinayakrao Khadse

(PW-3). At that time, the temple was closed therefore, the accused

demanded keys of temple from Rangrao Maharaj. On his refusal to

hand over the keys, accused No.1 Namdeo snatched the keys from the

4 Cri Appeal 05 of 2006

hands of Rangrao Maharaj and opened the temple. The accused went

inside the temple and abused idol of Lord Ganesha and inflicted the

kick blows to it. Similarly, accused Namdeo broke the idol of Lord

Krishna. According to PW-1, he tried to restrain the accused from

destroying the idol but, it was of no use. Thereafter, accused

threatened Rangnatrao Maharaj with dire consequences. According to

PW-1, due to said incident, his religious feelings were hurt therefore, he

lodged complaint (Exh. 24). During the cross-examination, it has come

that there was some dispute with regard to the land on which the

temple was situated. PW-1 has stated in the cross-examination that

the idol is placed upon lotus flower which is having height around 2 ½

feet and the lotus flower is based on Concrete dias of 2 ½ feet. In these

circumstances it is not clear as to how the accused persons of average

hight damaged idol by kick blows which was on the height of 5 feet.

The PW-1 specifically stated in his cross-examination that he has not

mentioned in his report that accused Namdeo has snatched keys from

Rangrao Maharaj and opened the door of temple. PW-1 stated that he

does not remember whether he had stated in his report that Namdeo

had thrown the idol of Lord Krishna on the ground and Deepak

fragmented it with stick. The testimony of PW-1 does not inspire

confidence. So also, the material witness Rangnatrao Maharaj has not

been examined by the prosecution. Pertinently, PW-1 specifically stated

that he was sitting in another room along with Rangrao Maharaj and

5 Cri Appeal 05 of 2006

Vinayak Khadse (PW-3), at the time of incident hence the presence of

PW-1 at the place of the incident becomes doubtful.

7. According to PW-2, at the time of incident, he was taking

food, sitting in the room at Southern side of temple whereas PW-1 and

PW-3 were sitting in Northern side room of the temple. According to

PW-2, accused Namadeo used bad words in filthy language. PW-2

specifically stated that accused Deepak held his hand and accused

Namdeo snatched keys from him. Whereas in the cross-examination of

PW-2 clarified that accused Deepak caught hold of his hands and

accused Namdeo snatched keys from him. Significantly, said version

does not find place in his statement recorded by Police. Certain

improvements were made by said witness saying that accused Namdeo

and accused Deepak destroyed idol of Lord Krishna. Said version also

does not find place in the Police Statement. Pertinently according to

PW-1, accused Namdeo snatched keys from Rangrao Maharaj. The

testimony of PW-2 is full with infirmities. As far as PW-3 is concerned,

he stated that at the time of incident, accused came to the temple and

abused Rangrao Maharaj and snatched keys from him. He tried to

restrain the accused but it was of no use. It is not clear from the

testiomy of PW-3 as to which accused abused Rangrao Maharaj and

snatched the keys. He has made an improvement to the extent

accused person had taken away the keys of the temple. This version

6 Cri Appeal 05 of 2006

does not find place in his Police Statement.

8. I have carefully scrutinized the statements of PW-1, PW-2

and PW-3. It is noticed that there are glaring discrepancies in the

version of all the witnesses. The testimony of PW-1 does not

corroborate with that of PW-2 and PW-3. As regards the incident of

snatching of keys. It is not not clear as to from whom exactly the keys

were snatched. PW-1 has not disclosed the presence of PW-2,

Shalikram Sonone. According to PW-1, the keys were snatched from

Rangrao Maharaj who has not been examined whereas, according to

PW-2, accused Deepak held his hands and Namdeo snatched snatched

the keys from him. There is material discrepancy with regard to the

snatching of the keys so also as regards the incident of inflicting kicks

on the idol of Lord Ganesha and damaging the idol of Lord Krishna. The

evidence of PW-1 indicates that when accused Namdeo snatched keys

from Rangrao Maharaj, at that time PW-1 was present there along with

PW-3, Vinayak Khadse. So far as the testimony of PW-2 is concerned

when the accused approached him, he was having food and was

sitting alone in a room situated at Southern side of temple and and at

the relevant time, PW-1 and PW-3 were busy in another room i.e. room

which is situated at the Northern side of the temple. His version

therefore, makes the presence of PW-1 and PW-3 doubtful. If that is

the case, it is not clear as to why PW-1 and PW-3 stated about

7 Cri Appeal 05 of 2006

snatching of keys by the accused from Rangrao Maharaj.

Thus, on considering the testimonies of all these three

witnesses, it is noticed that they are inconsistent with regard to the

presence of the witnesses at the place of incident. If at all PW-1 was

present with PW-3 in another room, in that case, it is not possible that

they were present with PW-2, when the accused snatched keys, as

admittedly, PW-2 was taking meals in another room. Thus, presence of

witnesses at the place of incident becomes doubtful. Therefore, their

testimony with regard to snatching of the keys and damaging of the

idol of Lord Krushna by the accused persons become doubtful.

9. As far as the allegation that the idol of Lord Ganesha was

damaged by the accused persons, according to PW-1, idol of Lord

Ganesha was placed upon a Lotus flower having height of 2 ½ feet

and lotus flower was placed upon the dias having height of 2 ½ feet

which makes it clear that the idol of Lord Ganesha was placed at least

5 feet from the ground. In these circumstances, it is unclear that as to

how the accused persons kicked the idol and abused it which was

placed at the height of 5 feet from the ground. It is also not clear as to

how the idol of Lord Krishna was kept on the idol of Lord Ganesha. The

Panchas on the point of panchanama of place of incident, turned

hostile. Investigating Officer PW-6 has not mentioned anything about

the preparation of spot panchanama. In these circumstances, the

8 Cri Appeal 05 of 2006

position of the spot is also not clear. The testimony of the eye-

witnesses do not inspire confidence. As far as Investigating Officer is

concerned, he has simply stated about recording the complaint. He has

not stated anything about further investigation.

10. In view of facts and circumstances, it appears that view

taken by the learned Magistrate is plausible. In the exercise of its

appellate jurisdiction particularly appeal against the acquittal, it is not

open to this Court to substitute its own view with a view taken by the

learned Lower Court unless the view taken by the learned Lower Court

is illegal or perverse against the principles of Law. No sufficient ground

is made out by the appellant to infere with the impugned judgment and

order. The appeal therefore, stands dismissed.

JUDGE

Gohane