State Of Mah.Thr. Pso Akola vs Sanjay Lalchand Chandak And 4 ...
2017 Latest Caselaw 8931 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 410 OF 2004


 State of Maharashtra, 
 through Police Station Officer, 
 Police Station City Kotwali, Akola.                 ....       APPELLANT


                     VERSUS


 1) Sanjay Lalchand Chandak,
     Aged about 32 years, 
     Occupation - Service, 
     R/o Aashray Nagar, Akola. 

 2) Rajendra Roopchand Chandak,
     Aged about 30 years, 
     Occupation - Business, 
     R/o Tilak Park, Ramdaspeth, Akola.

 3) Munna @ Mangalsingh Babusingh
     Thakur, Aged about 29 years, 
     Occupation - Contractor,
     R/o Shiv Nagar, Akola. 

 4) Vishal Babanrao Nandanwar,
     Aged about 30 years, 
     Occupation - Education, 
     R/o Shivaji Nagar, Akola. 

 5) Hukum @ Tiger Laxman Sarwan,
     Aged about 30 years, 
     Occupation - Labourer, 
     R/o Shiv Nagar, Bhangi Pura, Akola.             ....       RESPONDENTS




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 ______________________________________________________________

            Shri A.M. Kadukar, Addl.P.P. for the appellant, 
            Shri A.J. Thakkar, Advocate for the respondents.
  ______________________________________________________________

                              CORAM :    ROHIT B. DEO, J.

                            DATED  :      22
                                              nd  NOVEMBER, 2017

 ORAL JUDGMENT : 

The State is in appeal assailing the judgment and order

dated 23-3-2004 passed by the learned Judicial Magistrate First Class,

Court 4, Akola in Criminal Case 729/2002, by and under which the

respondents (hereinafter referred to as the "accused") are acquitted of

offences punishable under Sections 143, 147, 294, 452, 387 and 506 of

the Indian Penal Code.

2. Heard Shri A.M. Kadukar, learned Additional Public

Prosecutor for the appellant and Shri A.J. Thakkar, learned Advocate

for the accused.

3. The learned Additional Public Prosecutor submits that the

view taken by the learned Magistrate is not a possible view and

perversity of approach and in appreciation of evidence is writ large

upon the face of the judgment impugned. The judgment of acquittal is

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infirm, on facts and in law, is the submission.

4. Per contra, the learned Advocate for the accused submits

that a possible view is taken and there is no compelling reason

demonstrated for this Court to interfere in the judgment of acquittal.

5. The gist of the prosecution case is that the complainant

Umeshkumar Sharma, is engaged in business of kirana shop. Between

2.00 to 2.30 p.m. on 28-5-2002 the accused came to the residence of

the complainant, entered the residence and abused the complainant in

obscene words. The accused demanded ransom of Rs.20,000/- (rupees

twenty thousand), to permit the complainant to carry on business. The

accused threatened to kill the complainant and assaulted him with fists

and kicks. The police, who arrived having received a telephone

message, arrested the accused from the spot.

6. The learned Magistrate framed charge (Exhibit 24) for

offences punishable under Sections 143, 147, 294, 452, 387 and 506 of

the Indian Penal Code. The accused pleaded not guilty and claimed to

be tried. The defence is of total denial and false implication due to

inimical relationship.

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7. The learned Magistrate, while dealing with the submission

on behalf of the defence that the accused were not subjected to test

identification, rightly held that since the accused were apprehended

from the residence of the complainant, their presence on the spot is not

in serious dispute.

8. The evidence of P.W.1 Sau. Vidhya Desai, P.W.3 Vasantrao

Tambekar and P.W.2 Umesh Sharma, the complainant is marshalled

and appreciated by the learned Magistrate in paragraphs 11, 12, 13,

14, 15 of the judgment impugned, which appreciation, in my opinion,

is unexceptionable. The learned Magistrate noted that admittedly

there was a dispute between P.W.1 and accused Sanjay in respect of

lane between their houses. P.W.1 lodged a report against accused

Sanjay on 10-5-2002 and on 28-5-2002 P.W.1 alongwith her brother

P.W.3 and others had been to police station to explore the possibility of

an amicable settlement with the accused Sanjay. P.W.1 states that

accused Sanjay did not come to the police station. P.W.1 is the

neighbour of the complainant. The relationship between P.W.1 and

the complainant is not clear since according to the complainant he has

good relations with P.W.1 and the relationship is that of tenant and

landlord. P.W.1 has deposed that on 28-5-2002 at 2.30 p.m. the

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accused arrived shouting that P.W.1 and the complainant must

withdraw the complaint and pay the accused Rs.20,000/-. The

accused assaulted the complainant, is the submission. It is elicited in

her cross-examination that the statement that the accused assaulted the

complainant by kicks and fists, is an omission. The inter se discrepancy

between the evidence of P.W.1 and P.W.2 complainant is glaring.

While the complainant has deposed that the accused demanded

Rs.20,000/- as ransom to permit him to carry on business in the

locality, this is not the version of P.W.1. P.W.2 Umesh himself does not

specifically state that he was assaulted by kicks and fists and there is

only a general statement in his evidence that accused beat him. The

medical evidence is inconsistent with assault as is evident from medical

certificate Exhibit 64 issued by P.W.5 Dr. Ranjit Korde.

9. P.W.3 also does not say in the evidence that the accused

demanded ransom from the complainant. P.W.1 Vidhya Desai and

P.W.3 Vasantrao Tambekar do depose that the accused persons insisted

that the complaint lodged by P.W.1 be withdrawn. However, this is

not the version of the complainant and his deposition is at stark

variance with that of P.W.1 and P.W.3. Be it noted that the police who

arrived at the spot and apprehended the accused from the spot have

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not found any evidence of a physical altercation or an assault, as is

apparent from the evidence of the investigating officer.

10. The prosecution witnesses have not deposed about use of

obscene words, the report is silent on the particulars of the alleged

obscene words and the charge under Section 294 of the Indian Penal

Code must necessarily fail, as is rightly held by the learned Magistrate.

The charge under Section 387 is also not substantiated and the

apprehension of evidence by the learned Magistrate as is reflected in

paragraph 16, as regards the said charge, is again unexceptionable.

11. I have given my anxious consideration to the evidence on

record. I do not see any compelling reason to interfere with the

judgment of acquittal. The appeal is sans merit and is dismissed.

JUDGE

adgokar