The State Of Maharashtra vs Sitaram Devade And Ors
2017 Latest Caselaw 8620 Bom

                                    1                  APEAL388.2002

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
                      BENCH AT AURANGABAD.

                     CRIMINAL APPEAL NO. 388 OF 2002 

 The State of Maharashtra
 through Police Station, Gangakhed.                         ... Appellant

              VERSUS

 1.   Sitaram S/o Bhojaji Devade,
       Age : 50 years, Occu. Agril.,
       R/o. Kaudgaon, Tq. Gangakhed,
       Dist. Parbhani. 

 2.   Mahadu S/o Bhojaji Devade,
       Age : 35 years, Occu. Agril.,
       R/o. As above.

 3.   Apparao S/o Taterao Devade,
       Age : 22 years, Occu. And R/o. As above.             ... Respondents

                                     ..........
                 Mr R. V. Dasalkar, APP for the appellant/State
                           None for the respondents.
                                    .............

                                   CORAM  :  A. M. DHAVALE, J.

                                   DATE      :  10TH NOVEMBER, 2017.


 ORAL JUDGMENT :- 

 .            The   respondents   herein   were   prosecuted   for   offences 

punishable u/s 324 and 7(1)(d) of Protection of Civil Rights Act and

by judgment dt. 09.04.2002 in RCC No. 44/2001 (Old RCC No.

319/98), the ld. Judicial Magistrate First Class, Gangakhed, acquitted

all the accused. Aggrieved thereby, the State has preferred this appeal

against acquittal.

2 APEAL388.2002

2. Ld. APP has stated that as per FIR Exh. 27 lodged

immediately after the incident, some cattle of the accused had

entered the field of PW1-Nagorao on 01.08.98. PW1 told accused

No. 1-Sitaram to prevent such entry. The accused Sitaram, his son

Apparao, Namdeo and one Mahadu on the same evening at 7:00 p.m.

came in front of house of PW1 Nagorao and abused him as 'egk&;k,

ekaX;k] /ksMxs gks rqeph vkeps leksjs vSir dk; vkgs '- The FIR shows that, PW1

Nagnath belongs to Bouddha-Mahar whereas; the accused belong to

Dhangar community. After abusing to PW1-Nagorao in such manner,

all the accused assaulted PW1 Nagorao by axe and sticks. Accused

No. 3 gave axe blow on his skull. When brother Nivrutti intervened

accused no. 1 Sitaram and accused no. 4 Namdeo assaulted him with

stick and Sitaram inflicted axe blow on his skull. On hearing the

shouts, PW1 Nagorao's wife - PW2 Padmini and daughter Sunita

rushed to the spot but all the accused assaulted them as well by

means of stick. The witnesses were rescued by Datta Kadam and

Sheshabai. Accordingly FIR was lodged and crime was registered at

C.R. No. 179/98 at 11:45 at Police Station, Gangakhed. Earlier to it,

the injured witnesses were referred to Rural Hospital at Gangakhed

where they were examined and treated. After carrying out the

investigation, the charge-sheet was submitted in the court. The ld.

3 APEAL388.2002

trial Judge framed the charge u/s 324/34 IPC and 7(1)(d) of

Protection of Civil Rights Act. The ld. trial Judge, in absence of APP,

examined seven witnesses. The defence of the accused is that, the

prosecution witnesses had assaulted them for which they have filed

counter cases. They denied the allegations of assault by them. The

ld. JMFC acquitted all the accused. Hence, this appeal.

3. Heard Shri. R. V. Dasalkar, learned APP for the

appellant/State.

4. The points for consideration with my findings thereon are

as follows :

Sr. No. Points Findings 1 Whether the prosecution has proved Not proved.

that accused nos. 1 to 4 in furtherance of their common intention voluntarily caused hurt to PW1, PW2, deceased Nivrutti and deceased Sunita?

2 Whether the prosecution has proved Not proved.

that, accused nos. 1 to 4 in furtherance of their common intention intentionally insulted complainant and thereby committed offence u/s 7 of Protection of Civil Rights Act?

3 What order? The appeal is dismissed.

4 APEAL388.2002

REASONS

5. The prosecution has examined seven witnesses only and

produced the following documents.

               (i)     PW1-Nagorao-injured witness.

               (ii)    FIR Exh. 27.

(iii) PW2-Padminibai, wife of PW1 and injured witness.

(iv) PW3 - Dr. Kendre, who gave medical certificates of PW1-Nagorao (Exh. 30), PW2-Padmini (Exh.33), Nivrutti (Exh.31) and Sunita (Exh. 32).

(v) PW4-Ram Mhatre, panch to the seizure of axe used by accused No. 1 - Sitaram, who turned hostile.

(vi) PW5-panch to the seizure. Panchanama Exh. 35 to 38, turned hostile.

(vii) PW6-Panch to the spot panchanama Exh. 41, formal.

(viii) PW7-Eye witness - Sheshabai.

(ix) The prosecution has not examined the IO.

5. As per evidence of PW1 Nagorao, on the day of incident, in

the morning accused Sitaram was grazing his cattle in his field which

was objected by him. He deposed that, at that time, all the accused

came to his field and abused him as '/ksMX;k] ekaX;k' etc. In the first place,

this is contrary to his FIR Exh. 27. As per the FIR, the incident of

abusing took place at 7:00 p.m. and not in the morning. Secondly,

PW1 Nagorao stated that, he had submitted a report about the first

incident at the Police Station but the said report is not on record.

5 APEAL388.2002

6. Similarly, PW2 Padmini has deposed that, abusing in the

name of caste took place in the morning. She stated that, she was

also abused as '/ksMX;k] ekaX;k'. According to PW1 Nagorao, his wife was

not present at the time of incident in the morning. She also deposed

that, a written report about the morning incident was lodged at

Gangakhed Police Station but it was not brought on record.

7. Thus, evidence of PW1 and 2 on the point of intentional

insult with regard to their caste is materially different. According to

the prosecution case, it took place in the evening at 7:00 p.m. They

deposed that, it took place in the morning. They stated that, a

separate report to that effect was lodged but it was not produced in

the court. Therefore, the incident of intentional insult with regard to

their caste cannot be said to be proved.

8. The evidence of PW1 and PW2 shows that, on the same

day, in the evening all the accused persons came with sticks and axe

in their hands and they had beaten PW1, PW2 and PW1's cousin

Nivrutti.

9. With regard to assault, the prosecution has not examined

PW1's cousin Nivrutti. PW1 has deposed that, after lodging the

6 APEAL388.2002

report, when he came back all the accused persons assaulted him first

and thereafter his wife Padmini and thereafter Nivrutti. He stated

that, he sustained injuries at 5-6 places due to beating by the accused

by sticks and axe. He has accordingly lodged FIR Exh. 27. He did

not depose about assault on his daughter Sunita.

10. Contrary to his evidence, PW2 Padmini has stated that the

accused came to her house and started assaulting her with sticks and

axe in their hands and thereafter her husband and daughter Sunita

came and thereafter they were assaulted. She stated that, accused

no. 1 - Sitaram had pushed her outside the house and accused no. 1

inflicted a stick blow on her back. She deposed about assault on

Nivrutti and her daughter Sunita and intervention by Sheshabai. Her

evidence is materially different than the evidence of PW1 as to the

place of incident. According to her, assault took place inside the

house whereas; according to PW1, it took place outside the house.

The sequence in which PW1, PW2, Nivrutti and Sunita were

assaulted is also changed. According to PW1, he was first assaulted

whereas; PW2 stated that, she was first assaulted and then her

husband came. Both have admitted that, the accused have filed

report at the Police Station against them for which they were

prosecuted.

7 APEAL388.2002

11. Evidence of PW3 - Dr. Bhagwan Kendre shows following

injuries on the person of PW1-Nagorao (Certificate Exh. 30).

1. Contusion lacerated wounds having size 3 x ½ x ¼ cm.

over right paratal area.

2. CLW having size x 3 x ½ cm. on frontal area.

3. CLW having 2 x ½ cm. on left parietal area.

4. Contusion left scapula area 6 x 2 cm.

5. Contusion right scapula area 6 x 2 cm.

6. Abrasion right shoulder having 1 x 1 cm. over right shoulder.

7. Contusion having size by 1 x 1 cm. over thy.

. He examined Sunita, who had two contusions (certificate

Exh. 32).

1. Contusion having size of 5 x 2 cm. over the left scapula area.

2. Contusion having size 3 x 2 cm. over right thy.

. He examined PW2 Padmini, who had one contusion

(certificate Exh. 33).

1. Contusion 4 x 2 cm. on left infra scapular area. Injury was simple in nature seems to be caused hard and blunt object. The age of injury within 24 hrs.

. He also examined Nivrutti, who sustained 2 contusions

(certificate Exh. 31).

8 APEAL388.2002

1. Contusion lacerated would having size 3 x ½ x ¼ cm.

over occipital region.

2. Contusion left scufaulaer area having size 4 x 2 cm.

12. The evidence of PW1 & 2 is vague. It does not disclose

which accused was carrying which weapon, who gave blows of which

weapon and on which part of the body. PW2 stated that, she was

assaulted by sticks and axe but she has suffered only one contusion

and no injury by axe. Another injured witness Sunita is also not

examined. Panchas have turned hostile. PW7 Sheshabai has

supported PW1 and PW2 but her evidence is equally vague.

13. It is necessary that the trial Court judges should conduct

the evidence in presence of APP, but in this case, APP was absent. It

has therefore resulted into vague evidence. The material witnesses

Nivrutti and Sunita are not examined. Investigating Officer has also

not been examined. There are inter se contradictions between the

evidence of PW1 and PW2. Since the incident has taken place on

01.08.98, it will not be proper to remand the matter at this stage.

Considering the evidence on record, I find that, the view taken by the

ld. trial Judge is reasonable and probable view and, therefore, no

interference is warranted.

                                        9                     APEAL388.2002

 14.          The   appeal   is  dismissed.     The   bail   bonds   of   the   accused 

 stand cancelled. 



                                                  [  A. M. DHAVALE ]
                                                             JUDGE




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