The State Of Maharashtra vs Basavraj Suryakant Banegaon & Ors
2017 Latest Caselaw 2459 Bom

osk                                                       CrAppeal-290-2002.odt




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO. 290 OF 2002


       The State of Maharashtra                       ]     Appellant

                 Versus

1      Basavraj Suryakant Banegaon,                   ]
       Age 27 yrs., Occ.: Agri                        ]
                                                      ]
2      Ganesh Vithal Kamble,                          ]
       Age 19 yrs., Occ. Labour                       ]
                                                      ]
3      Hanmant Vishwanath Koli,                       ]
       Age 19 yrs., Occ. Labour                       ]
                                                      ]
4      Siddharam Kashinath Banegaon,                  ]
       Age 27 yrs., Occ. Agri                         ]
                                                      ]
5      Parmeshwar Ramlingappa                         ]
       Banegaon,                                      ]
       Age 40 yrs., Occ. Labour                       ]
                                                      ]     Respondents
       All R/o. Chapalgaon,                           ]     (Org. Accused
       Tal. Akkalkot, Dist. Solapur                   ]     Nos. 1 to 5)


      • Mr.Amit Palkar, APP for the Appellant.
      • None for the Respondents.


                 CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

                 DATE          : 11 th MAY, 2017.



 osk                                                    CrAppeal-290-2002.odt


ORAL JUDGMENT :

1]               By this appeal, the State is challenging the judgment

and order dated 12th October, 2001 passed by Sessions Judge,

Solapur in Sessions Case No.89 of 2001 thereby acquitting

Respondent Nos.1 to 5 for the offences punishable under

Sections 395, 427 read with Section 34 of the Indian Penal

Code (IPC).

2] Brief facts of the appeal can be stated as follows;

On 11th December, 2000 at about 9.30 am, PW3

Devgunabai, the Deputy Sarpanch of Village Chapalgaon found

that the present Respondents were removing the tin-sheets of

the study room, which was constructed out of MLA's fund and

the same was belonging to the Grampanchayat, Chapalgaon.

She along with the other persons, who were present there

noticed that at the instructions of Respondent No.1 Basavraj,

Respondent No.2 Ganesh and Respondent No.3 Hanmant were

removing the tin-sheets from the roof of the study room.

Despite the objections raised by PW3-Devgunabai and the

Sarpanch of the village Santosh Patil, those tin-sheets were

taken away by Respondent No.4 Siddharam and Respondent

osk CrAppeal-290-2002.odt

No.5 Parmeshwar from the spot, again at the instruction and at

the instance of Respondent No.1 Basavraj.

3] When PW1 Gramsevak Vithal Shinde came to the

office of Grampanchayat at 11.30 am, the Sarpanch and Deputy

Sarpanch informed him about this fact. PW1 Shinde then

verified from the record whether the tin-sheets of the roof of

study room belong to Grampanchayat. Thereafter, after

discussing the matter with his superiors, on 15 th December,

2000, PW1 Shinde lodged complaint against Respondents at

Akkalkot Police Station.

4] On the complaint (Exh.19) of PW1 Shinde, CR No.84

of 2000 came to be registered against Respondents for the

offences punishable under Sections 395 and 427 read with

Section 34 of IPC. Investigation of the said CR was taken over

by PW7 P.I. Pradip Babar. On the next day, he visited the place

of incident and prepared spot panchanama Exh.20. In the

course of investigation, he recorded statements of various

witnesses and arrested the Respondents. During Police

custody, at the instance of Respondent No.5 Parmeshwar, on

9th January, 2001, 14 tin-sheets came to be recovered along

osk CrAppeal-290-2002.odt

with the 'tikav' (instrument used for removing the tin-sheets

from the roof) were seized under Panchanama Exh.31. After

completion of investigation PW7 PI Babar filed charge-sheet in

Court of Judicial Magistrate First Class at Akkalkot against

Respondents on 23rd February, 2001.

5] In usual course, the case was committed to the

Sessions Court at Solapur. The Sessions Court framed charge

against the Respondents vide Exh.03. The Respondents

pleaded not guilty and claimed to be tried, raising the specific

defence that the case was filed out of political rivalry and

enmity.

6] In support of its case, the prosecution examined in

all seven witnesses. Out of them, PW2 Bhimashankar, PW3

Devgunabai and PW4 Abdul Gani were the eye-witnesses to the

incident. Whereas, PW1 Shinde was the Gramsevak; and the

formal witness. PW5 Ram Dede and PW6 Shivaji Patil were the

Panch witnesses to the memorandum of seizure panchanama

of the tin-sheets. Both of them were, however, declared hostile

as they did not support the prosecution case. Lastly,

osk CrAppeal-290-2002.odt

prosecution examined PW7 Investigating Officer, PI Babar.

7] On appreciation of their evidence, the Trial Court

was pleased to hold that prosecution has utterly failed to prove

its case against Respondents and accordingly, the trial Court

acquitted the Respondents on both the charges, leveled against

them.

8] This judgment of the Trial Court is challenged in this

appeal by learned A.P.P. submitting that the Trial Court has

committed an error in acquitting the Respondents in the face of

the evidence of three eye-witnesses, who have categorically

deposed that they saw the Respondents carrying away the tin-

sheets of the study room belonging to Grampanchayat. It is

urged by learned A.P.P. that evidence of PW1 Shinde goes to

prove that the tin-sheets of the study room were owned by the

Grampanchayat and the Respondents have not offered any

satisfactory explanation for removal of the same. Hence,

necessary inference of mens-rea is required to be drawn in this

case which Trial Court has not done. Hence, according to

learned A.P.P., the judgment and order of Trial Court acquitting

osk CrAppeal-290-2002.odt

the Respondents of the charges leveled against them is

required to be quashed and set-aside.

9] At the outset itself, it needs to be stated that the law

relating to the scope of inference of the Appellate Court in

Appeal against acquittal is fairly well settled and crystallized to

the effect that unless the impugned judgment and order of the

Trial Court is found to be manifestly illegal and perverse the

Appellate Court is not expected to interfere therein.

10] In the instant case, if the evidence on record, as

adduced by the prosecution is perused, then it can be clearly

seen that evidence of PW2 Bhimashankar, PW3 Devgunabai,

PW4 Abdul Gani, who are the eye-witnesses to the incident,

establishes and proves the fact that the Respondents have

removed the tin-sheets from the study room of the

Grampanchayat and taken them away. However, at the same

time, it is necessary to bear in mind, the defence raised by the

Respondents also, which is proved in this case through the

cross-examination of the prosecution witnesses.

 osk                                                   CrAppeal-290-2002.odt


11]              It is the specific case of Respondent No.1 that there

were two political parties in village Chapalgaon, one was led by

his father Suryakant, whereas another was led by Sarpanch

Santosh Patil. From the past several years, before the incident,

the party of Respondent No.1's father Suryakant was being

elected in the Grampanchayat and hence, the party of

Sarpanch Santosh Patil was having grudge against them.

Moreover, Respondent No.1 Basavraj was also elected as

'Director' of Indira Sahkari Sakhar Karkhana, Akkalkot and

that had added to the grudge on the part of rival party. In such

situation, according to Respondent No.1, the Resolution was

passed by Grampanchayat in the meeting held on 23 rd

February, 1999. As per the said Resolution, the study room

was leased out to Respondent No.1 Basavraj at a monthly rent

of Rs.30/-. By the said Resolution he was also permitted to

repair the flooring and to replace the tin-sheets, along with

making some other repairs of the study room. According to

Respondent No.1 Basavraj, on the date of incident, he was

removing the tin-sheets of the study room with the help of

labourers i.e. Respondent Nos.2 to 5 for replacing them. Out of

enmity Sarpanch Santosh Patil objected to the same. The police

osk CrAppeal-290-2002.odt

were called. Both the parties were taken to the Police Station

and the matter was settled amicably. PW1 Gramsevak Shinde

informed the Police that Respondent No.1 Basavraj has right to

replace the tin-sheets. However, on the same day, in the night,

Sarpanch Santosh Patil and his associates abused Respondent

No.2 Ganesh on his caste and assaulted him. Hence,

Respondent No.2 lodged a complaint against Sarpanch and his

associates with Police. As a result of the same, this false

complaint came to be filed by Sarpanch through PW-1

Gramsevak Shinde against Respondents and that too after the

lapse of four days from the incident, as an afterthought and

counter blast.

12] This defence of the Respondents is found to be

substantiated from the cross-examination of PW-3 Deputy

Sarpanch Devgunabai. She has admitted that on 23rd February,

1999 there was monthly meeting of Grampanchayat in which a

Resolution was passed to the effect that study room should be

leased out to Respondent No.1 for his office. She has also

admitted that, as per the said Resolution Respondent No.1 was

permitted to do the necessary repairs of the study room.

osk CrAppeal-290-2002.odt

According to her, one Mahapure was taking rough notes of the

meeting and he used to write the minutes of meeting as per the

convenience. Thus PW3 Devgunabai has clearly supported and

proved the defence of Respondent No.1 that in pursuance of

this Resolution which was passed on 23 rd February, 1999, he

had removed the tin-sheets of the said room, in order to

replace them, as the study room was leased out to him. Once

this fact is established through the cross-examination of

prosecution witness itself, then there is no question of the

offence of either 395 or 427 of IPC being made out against the

Respondents.

13] Perusal of the judgment of the Trial Court also shows

that the Trial Court has considered the fact that if intention of

Respondents was to commit the dacoity, as alleged by

prosecution, they would not have chosen the time of morning,

when the villagers are gathered near the study room, which is

also surrounded by hotels, shops etc. It is also pertinent to note

that Sarpanch Santosh Patil, who was material witness to the

incident is not examined by prosecution. The major infirmity

as noticed by prosecution also pertains to the delay of four days

osk CrAppeal-290-2002.odt

in lodging the complaint which again supports the defence of

Respondent No.1 that after the incident both the parties were

taken to the Police Station, where the matter was amicably

settled and hence, the complaint was not lodged even though

PW1 was also very much present at the Police Station. It also

supports and substantiates the defence of Respondent No.1

that only thereafter, as the incident of Sarpanch and his

associates abusing and beating Respondent No.2 Ganesh took

place, in respect of which complaint came to be lodged in Police

Station, as a counter blast thereto this complaint was lodged

after the lapse of four days. Otherwise this delay of four days in

lodging the complaint is not explained by the prosecution also.

14] Thus, having regard to the totality of the facts and

circumstances of evidence on record, it cannot be said that the

view taken by the trial Court of acquitting the Respondents as

perverse or illegal. In any way, as a matter of fact, that being

the only view from the evidence on record, the judgment of

trial Court acquitting the Respondents of all the charges

leveled against them needs to be confirmed.

 osk                                                   CrAppeal-290-2002.odt




15]              Appeal, therefore, holds no merit, hence stands

dismissed. The bail bonds of the Respondents stand cancelled.

[DR.SHALINI PHANSALKAR-JOSHI, J.]