Bombay High Court
State Of Maharashtra,Thr.The ... vs Gajanan Rangraoji Davare on 9 May, 2017
Bench: I.K. Jain
apeal.570.02.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.570 OF 2002
The State of Maharashtra,
through the Police Station Officer,
Gadge Nagar, Tq. & Distt. Amravati. .... Appellant
-- Versus -
Gajanan Rangraoji Davare,
Aged about 31 years,
R/o Police Head Quarters, Amravati,
Tq. & Distt. Amravati. .... Respondent
Shri N.B. Jawade, Additional Public Prosecutor for the Appellant/State.
Shri P.V. Navalani, Advocate for the Respondent/Accused.
CORAM : KUM. INDIRA JAIN, J.
DATE : MAY 9, 2017.
ORAL JUDGMENT :-
This appeal is directed against the judgment and
order dated 24/07/2002 passed by the learned Judicial
Magistrate, First Class, Amravati in Regular Criminal Case
No.443/2001 (Old No.17/1999) thereby acquitting the accused of
the offences punishable under Sections 452, 354, 323 and 506-II
of the Indian Penal Code.
02] For the sake of convenience, respondent is referred in
his original status as accused, as he was referred before the Trial
Court.
03] Prosecution case, in nutshell, is as under :
i. Complainant Rekha Wankhede was resident of
Reserve Line, Amravati. Her husband was a Police
Constable. Accused Gajanan was also serving as
Police Constable and at the time of incident, he was
attached to Highway State Police and posted at
Chistur.
ii. Incident occurred on 04/04/1999 at 22:00 hours. It is
the case of prosecution that on that day, Rekha had
kept Papad on her terrace. When she went to collect
Papad, she found that someone has committed
mischief and papad were lying in the drainage. She
shouted. That time, Santosh Davare and Nilesh
Davare entered her house and assaulted husband of
Rekha on his left thigh with a knife. Her son Yogesh
reached the Wireless Office and informed about the
incident. Sharad was then shifted to hospital.
iii. At about 10:00 p.m., Rekha along with her niece
Chitra and Pushpa was in her house. Some officials
from Wireless Department came to the house of
complainant to inquire about the previous incident. It
is alleged that accused Gajanan entered the house of
complainant and in the presence of officials slapped
Rekha, caught hold her hair and beat her with fist
blows. He also threatened to kill her and after
uttering the threats, left the house.
iv. On the next day, at around 11:00 a.m., Rekha went to
Gadge Nagar Police Station and lodged report. Crime
No.128/1999 was registered against the accused. PW-
10 A.P.I. Pandurang Dhongade took over investigation.
He visited the place of occurrence of incident and
recorded spot-panchnama in the presence of panch-
witnesses. Statements of the witnesses were
recorded by the Investigating Officer. Accused was
arrested on 12/04/1999. Further investigation was
handed over to PW-11 A.P.I. Netram Dhurve.
v. Since accused was a public servant, permission was
sought to file charge-sheet against him. On
completing investigation, charge-sheet was presented
to the Court of Judicial Magistrate First Class,
Amravati.
04] Charge of the alleged offence was explained to the
accused vide Exh.9. He pleaded not guilty and claimed to be
tried. His defence was of total denial and false implication. He
raised specific defence that at the relevant time, he was
attached to Highway State Police at Chistur, which is 90 kms.
away from Amravati on Nagpur road and was on duty at Chistur.
According to the accused, he left Chistur at 10:15 p.m. and,
therefore, it was impossible for him to remain present on the
spot as alleged by the complainant. Accused submitted that he
is innocent and falsely involved by the complainant.
05] Prosecution examined in all 11 witnesses to
substantiate the guilt of the accused. Considering the evidence
of prosecution witnesses and submissions made on behalf of the
parties, Trial Court came to the conclusion that prosecution could
not prove the guilt of accused beyond reasonable doubt and in
consequence thereof acquitted the accused as stated above in
paragraph 1. Being aggrieved with the judgment and order of
acquittal, State has preferred the present appeal.
06] Heard Shri N.B. Jawade, learned Additional Public
Prosecutor for the State and Shri P.V. Navalani, learned Counsel
for the respondent. On the close scrutiny of evidence of injured
Rekha and eye-witnesses PW-3 Pushpa, PW-4 Varsha, PW-5
Chitra, PW-8 Suresh Chikhalkar and PW-9 Dadarao Sayam, this
Court, for the below mentioned reasons, finds that the view
taken by the Trial Court is a reasonable and possible view and
there is no reason to take a view different than taken by the Trial
Court.
07] PW-2 Complainant Rekha is the star witness for
prosecution. She is injured witness. She stated that on the day
of incident at around 06:00 to 06:30 p.m., she found that Papad
kept by her on terrace were missing and so she raised hue and
cry. That time Nilesh Davare and Santosh Davare came to her
house and delivered knife blow to her husband. She states that
her husband sustained injuries on right thigh and left hand. Her
son informed about the incident to Wireless Department.
Regarding incident, it is deposed by Rekha that at
about 10:00 to 10:30 p.m., accused Gajanan entered the house
and that time some police officials were present in her house, as
they had come to inquire about earlier incident. She states that
accused abused and slapped her on ear and chick and gave
blows on her back. He caught hold her hairs and threatened to
kill her. After uttering the threats, he left the house. She states
that on the next day, she reported the incident to police. The
said report is at Exh.14.
08] The prime question in the present case is whether
testimony of Rekha inspires confidence and can be relied upon to
base a conviction. From the facts elicited in the cross-
examination, it is apparent that the relations between
complainant and accused were not cordial, though they were
residing in the same village. She admits that on the previous
day, wife of accused was beaten and report regarding the said
incident was lodged by accused against her and her husband. It
is pertinent to note that incident occurred on 04/04/1999 and
F.I.R. came to be lodged on 05/04/1999 at 11:00 a.m. Delay in
lodging report is not explained.
09] Prosecution has relied upon the evidence of PW-3
Pushpa, PW-4 Varsha, PW-5 Chitra, PW-8 Suresh and PW-9
Dadarao to corroborate the testimony of the complainant. They
are the eye-witnesses to the incident. Their evidence is on the
same line to the evidence of Rekha. PW-4 Varsha and PW-5
Chitra are niece of complainant. PW-8 Suresh and PW-9 Dadarao
were working as Police Officials in Wireless Department, in which
husband of complainant was working. Statements of all the eye-
witnesses came to be recorded on 07/04/1999. Prosecution did
not explain delay of three days in recording the statements of
eye-witnesses. No one from the same building, in which accused
and complainant were residing, has been examined by the
Investigating Officer during investigation.
10] From the evidence of PW-3 to PW-5, PW-8 and PW-9, it
can be seen that they have a strong reason to side the
complainant and depose against the accused. Two are the close
relatives and rest are the officials working in the same
department, in which husband of complainant was working at
the time of incident. Investigating Officer did not assign any
reason for not recording statement of independent witnesses.
11] It is significant to note that PW-1 Prakash Kale and
PW-6 Rambhau Kale are the witnesses on spot-panchnama.
They do support the prosecution. Both the panch-witnesses are
the Police Constables. Investigating Officer ought to have
procured independent and reliable persons as witnesses on spot-
panchnama. Spot-panchnama does not indicate any factual
position of commission of act and the same being recorded on
07/04/1999 i.e. after three days of the incident looses its
significance.
12] In view of all the above deficiencies and the facts
elicited in the cross-examination of complainant Rekha, this
Court finds that the view taken by the Trial Court is a reasonable
and possible view. No perversity is noticed in the reasonings and
findings recorded by the Trial Court. Appeal is thus devoid of
substance and merits. Hence, the following order :
ORDER
[i] Criminal Appeal No.570/2002 stands dismissed.
[ii] No costs.
(Kum. Indira Jain, J.)
*sdw
