Bombay High Court

Rama Shrikrushna Ugale And 6 ... vs State Of Mah.Thr.Pso Washim on 2 January, 2018

Bench: R. B. Deo

                                 1                                    apeal31.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.31 OF 2006



 1) Rama Shrikrushna Ugale,
     Aged about 23 years, 

 2) Tulshiram Govinda Ugale,
     Aged about 41 years,

 3) Ganesh Madhukar Ugale,
     Aged about 20 years, 

 4) Dnyaneshwar Vitthal Ugale,
     Aged about 23 years, 

 5) Dilip Kanhuji Ugale,
     Aged about 37 years, 

 6) Bharat Kanhuji Ugale,
     Aged about 30 years, 

 7) Jagan Baliram Ugale,
     Aged about 29 years, 

     All Agriculturists & R/o Kajal-
     Amba, Tq. & Distt. Washim.                     ....       APPELLANTS


                     VERSUS


 State of Maharashtra, 
 through Police Station, Ansing, 
 Tq. & District Washim.                             ....       RESPONDENT




::: Uploaded on - 02/02/2018               ::: Downloaded on - 20/05/2018 21:18:09 :::
                                        2                                          apeal31.06




 ______________________________________________________________

              Shri R.L. Khapre, Advocate for the appellants, 
     Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 2 nd FEBRUARY, 2018.

ORAL JUDGMENT :

The appellants seek to assail the judgment and order dated

20-1-2006 rendered by the learned IInd Ad hoc Additional Sessions

Judge, Washim in Sessions Trial 18/2005, by and under which the

appellants are convicted for offence punishable under Sections 143,

436, 427 and 323 read with Section 34 of the Indian Penal Code ("IPC"

for short). The sentence awarded is simple imprisonment for three

months and to payment of fine of Rs.500/- for offence punishable

under Section 143 of the IPC, rigorous imprisonment for five years and

to payment of fine of Rs.1,000/- for offence punishable under Section

436 read with Section 34 of the IPC, rigorous imprisonment for one

year and to payment of fine of Rs.1,000/- for offence punishable under

Section 427 read with Section 34 of the IPC and simple imprisonment

for three months and to payment of fine of Rs.500/- for offence

punishable under Section 323 read with Section 34 of the IPC.

3 apeal31.06

2. The gist of the prosecution case is thus :

P.W.1 Yashodabai Padghan is in cultivating possession of

Class-E land bearing Survey 42, admeasuring 5 Acres situated in

Kajlamba. P.W.1 and her husband P.W.2 had constructed a hut on the

said agricultural land and were residing therein since the standing crop

needed protection. The household articles needed for the day to day

living were in the said hut.

The incident occurred on 10-8-2004. P.W.2 Kashiram had

gone to Washim to purchase grocery. Between 9-30 a.m. to 10-00

a.m., all the accused came near the hut and started abusing P.W.1. The

accused had brought a five litre can of kerosene. Accused 1 Rama

poured kerosene around the hut which was set on fire by accused 3

Ganesh by igniting a matchstick. Accused 2 Tulshiram instigated the

other accused to set hut on fire. The cattle brought by accused

Dnyaneshwar, Dilip and Jagan were driven in the standing crop of

soyaben and accused Bharat and Dilip assaulted P.W.1 by a Neem

stick.

P.W.1 waited for her husband to arrive, who returned at 5-

00 p.m. or thereabout. P.W.1 narrated the incident to P.W.2. A

written report (Exhibit 22) was lodged by P.W.1 at Ansing Police

Station at 6-15 p.m. or thereabout. On the same day P.W.1 Yashodabai

4 apeal31.06

was referred for medical examination. The spot panchanama was

recorded on 25-8-2004 (Exhibit 27). The statements of witnesses were

recorded between 25-8-2004 and 27-8-2004. The accused were

arrested and upon completion of the investigation, charge-sheet was

filed in the court of Judicial Magistrate First Cass, Washim, who

committed the proceedings to the Sessions Court.

3. The learned Sessions Judge framed charge under Sections

143, 436, 427 and 323 read with Section 34 of the IPC. The accused

abjured guilt and claimed to be tried. The defence is of total denial and

false implication. The motive for false implication is stated to be the

action initiated against the complainant and her husband for removal

of the encroachment on the Class-E land, which concededly is

Government land. The defence examined three witnesses namely

Keshao Aochar, Rama Gaikwad and Shaikh Deewan.

4. Heard Shri R.L. Khapre, learned Counsel for the

appellants/accused and Shri N.H. Joshi, learned Additional Public

Prosecutor for the respondent/State.

5. The learned Counsel for the accused Shri R.L. Khapre

5 apeal31.06

submits that the investigation is not only unfair but borders on

dishonesty. Shri R.L. Khapre, learned Counsel would submit that the

evidence on record indicates that the very authenticity of the first

information report (Exhibit 22) is suspect. The fact that the prosecution

has not come forward with any explanation whatsoever for not

registering the offence till 24-8-2004, would suggest that sanha entry

taken in the police station at 8.15 p.m. on 10-8-2004 was not with

reference to first information report (Exhibit 22) and, was in every

probability with reference to a limited complaint of P.W.1 having

suffered simple hurt. The learned Counsel Shri R.L. Khapre would

submit that since the offence punishable under Section 323 of the IPC

is non-cognizable, the police did not, and justifiably so take cognizance

of the first information report. The registration of offence under

Sections 435, 427, 323 and 504 read with Section 34 of the IPC on

24-8-2004, without any explanation forth coming for the delayed

registration of offence, would suggest false implication or over

implication at the behest of the complainant, is the submission. The

existence of the hut is not proved, is the submission of the learned

Counsel Shri R.L. Khapre. The evidence of P.W.1 is not consistent with

injury report (Exhibit 38) and the testimony of P.W.1 is not confidence

inspiring, is the submission. The learned Counsel would submit that

6 apeal31.06

the evidence on record is not sufficient to prove the offence beyond

reasonable doubt and au contraire the defence of the accused of false

implication is more than probabalised on the touchstone of

preponderance of probabilities.

6. Per contra, the learned Additional Public Prosecutor Shri

N.H. Joshi would support the judgment and order impugned.

7. Concededly, the only eyewitness is the complainant

herself. She has deposed that at 10-00 a.m. on the day of the incident

the accused came near her hut, accused Rameshwar poured kerosene

around the hut and accused Ganesh set the hut afire. The other

accused drove the cattle in the soyabean crop and damaged the crop.

Accused Dilip inflicted a stick blow on the leg. P.W.1 states that she

and her husband suffered loss of Rs.10,000/- since the articles stored in

the hut were destroyed. P.W.1 then states that after her husband

returned at 5-00 p.m., the report was lodged at Police Station Ansing.

She proves the oral report (Exhibit 22). She states that previously she

and her husband instituted civil suit since the possession of the land

was being disturbed and secured an injunction. She proves the copy of

the judgment (Exhibit 24) of the civil Court. In the cross-examination,

7 apeal31.06

P.W.1 states that after the incident, she immediately went to the

residence of police patil and narrated the incident to him. She states

that she was advised by the police patil to lodge the report after her

husband returns from Washim. P.W.1 then states that from the

residence of police patil she returned to the field and was in the field

till her husband returned. She states that she went to Ansing at 6-00

p.m. and lodged the report. P.W.1 states that the report was typed in

the police station courtyard and that she narrated the instructions to

the typist. She is not in a position to state to whom the copies of the

report were sent. In the next breath, she states that the copies of the

report were sent to the Superintendent of Police and the Tahsildar.

She states that she went to the tahsil office the next day, however, the

officials of the tahsil office did not visit the spot. She states that two

police officials came to the spot on the next day and prepared

panchanama. She further states that the police recorded the statements

of the witnesses on the next day of the incident. She admits that the

accused had lodged the complaint with the tahsil office seeking

removal of the encroachment. She denies the suggestion that the

talathi had visited the field on 03-8-2004 and prepared the

panchanama.

She further states in the cross-examination that the

8 apeal31.06

accused had brought 200 to 300 cattle in the field. She saw the cattle

from distance of 5 to 50 meters approaching the field from Washim-

Kalamba Road. She states that since nobody was around, she did not

call for help. She states that the accused were in the field for one hour.

The accused were around the hut, the cattle destroyed the soyabean

and tur crops, however, she neither called out seeking help nor did she

go to the village, other than for visiting the residence of the police patil.

8. She states that the hut was situated on the western side

corner of the land. She states that police made enquiries from her

twice and the second enquiry was after fifteen days of the incident.

P.W.1 states that her statement and that of her husband P.W.2 was

recorded on the next day of the incident and the statements of

Sheshrao Kamble and Kisan Kamble were recorded after fifteen days of

the incident. She asserts that her statement and that of her husband

was not recorded subsequently. In the cross-examination, it is brought

on record that the cattle did not enter the neighbouring and adjoining

fields and entered only in her field. She denies the suggestion that she

is falsely implicating the accused since the accused lodged report

complaining of the encroachment committed by her and P.W.2. She,

however, admits that in the past she did file a report against the

9 apeal31.06

previous sarpanch Niranjan Ugale and her husband P.W.2 lodged the

report against the tahsildar Bal Sakhare alleging that P.W.1 and P.W.2

were abused by the said sarpanch and tahsildar.

9. Kashiram Padghan, the husband of the complainant

(PW 2) has deposed that on the day of the incident at 8.30 a.m. he

went to Washim to purchase grocery and returned at 5.00 pm. He

found the hut burnt. The incident was narrated to him by his wife PW

1. He states that the total loss caused was between Rs.7,000/- to

80,000/-.

In the cross-examination, it is brought on record that the specific

role attributed to the accused, on the basis of information received by

PW1, is an omission. PW 2 admits that the incident occurred in rainy

season. He states that he reached Aansing Police Station at 6.00 p.m.

alongwith PW 1 who lodged the report. PW 2 states that the report

was drafted by advocate Shri Ingle of Washim. PW 2 states that he and

PW 1 reached Washim at 5.00 p.m. and the report was typed as per the

instructions given by PW 1 at Washim. He claims ignorance of the

complaint made by the accused to the tahsildar against PW 1 and PW

2. He denies the suggestion that the talathi inspected the field on

8.9.2004 and prepared panchanama. The suggestion that the accused

10 apeal31.06

are falsely implicated since they were complaining to the tahsildar, is

denied. It is elicited that since the police did not initiate any action for

15 days, report was lodged with Superintendent of Police. He states

that the police came for inquiry after one month of lodging of report.

10. PW 3 Sheshrao Kamble who is examined to prove the spot

panchanama Exh. 27 did not support the prosecution, although, he is

one of the plaintiffs in the civil suit instituted seeking injunction. In the

examination in chief, he disclaims knowledge of existence of hut on the

land encroached by PW 2.

In the cross-examination on behalf of he prosecution, nothing is

elicited to assist the prosecution.

11. PW 4 Kisan Kamble, who was also a plaintiff in the civil

suit, did not support the prosecution. PW 4 was examined to prove the

spot panchanama Exh. 27. However, he denies having gone to the

field of PW 2 and states that his signature was obtained by the police in

the village.

12. PW 5 Ramkrushna Manwar is the police patil of the village

who deposed that PW 1 came to him at 11.00 a.m. and complained

11 apeal31.06

that her crop was damaged. PW 5 states that he accompanied PW 1

and noticed damage to the crop. However, he states that he is not

aware of the existence of hut in the field and denies that PW 1

disclosed the names of persons responsible for damaging the crop.

Nothing is elicited in the cross-examination of PW 5 to take the case of

the prosecution any further.

13. PW 6 Pandit Rathod, then attached to Police Station

Ansing as ASI recorded the First Information Report. PW 6 asserts that

Exh. 22 is the typed report submitted by PW 1.

In the cross-examination, it is elicited that there is no facility of

typing in the police station.

14. PW 7 Panjabrao Ingle is one of the Investigating Officers.

His deposition is that it was when he recorded the spot panchanama

Exh. 27, he noticed that the hut was burn and crops were damaged.

He recorded the statement of PW1, PW 2 and the police Patil -

Ramkrushna (PW 5). PW 7 states that it was after recording of the

statements of the witnesses that he realized that offence punishable

under section 436 of the IPC is made out and he brought this fact to

the notice of the police station officer. It was thereafter that offence

12 apeal31.06

under section 436 of the IPC was additionally registered, is the

deposition. In the cross-examination, he states that he did not visit the

village Kajalmba for investigation before 25.8.2004. The witness is not

aware as to what transpired between 10.8.2004 to 25.8.2004. He

states that although he recorded statements of 25 persons other than

PW 1, PW 2 and the police patil, he did not record statements of the

neighbouring field owners.

15. PW 8 Dr. Sudhakar Gunaghe who examined PW 1

Yashodabai has deposed that he noticed pain and tenderness over the

left knee joint and right knee joint. The injuries could be caused to

labours working in the field, is what elicited in the cross-examination.

16. PW 9 - Maroti Aoghale then attached to Police Station

Ansing as PSI has filed the charge sheet.

17. Keshav Aochar, the talathi is examined as DW 1. He has

deposed that he prepared a report of the encroachment on made by PW

1 and PW 2 on 9.6.2003 and submitted the encroachment report to the

tahsildar on 4.8.2004. He has proved the report Exh. 46. DW 1 states

that when he prepared the report, he did not notice a hut.

13 apeal31.06

In the cross-examination, DW 1 states that he submitted the

report since the Sarpanch had applied for the same. DW 1 states that

he visited the field on 4.8.2004 in the morning. He denies the

suggestion that he used to send reports at the dictates of the Sarpanch.

DW 1 has denied the suggestion that he prepared a false report without

inspecting the land.

18. DW 2 Rama Gaikwad is examined to prove that none of

the accused took any cattle from the cattle in his possession.

19. DW 3 Sheikh Avesh is examined to prove that PW 2

Kashiram resides in front of his house since beginning. DW 3 has

deposed that he used to see Kashiram and family daily and he did not

shift to any other residence.

20. Analysis of the ocular evidence on record would reveal

that from the perspective of the prosecution, the material witnesses are

PW 1 Yashodabai and PW 2 Kashiram. The First Information report of

the incident was lodged at 6.00 p.m. on 10.8.2004, according to PW 1

and PW 2. The printed First Information Report Exh. 23 recites that

the information of the offence was received at the police station at

14 apeal31.06

12.00 p.m. on 24.8.2004. Column 4 of the printed First Information

Report states that information was written. Column 8 of the printed

First Information Report states that the reasons for delay in reporting

by complainant / informant is "after inspecting the spot of occurrence".

However, the spot is inspected and panchanama was recorded on

25.8.2004. PW 7 Panjabrao Ingole, who claims that after recording the

statement of witnesses, he realized that offence punishable under

section 436 of IPC is made out, admits that he did not visit village

Kajalmba before 25.8.2004. The prosecution has not adduced any

evidence whatsoever to show that the police visited the scene of

incident prior to 25.8.2004. In the teeth of the evidence on record, the

reason recorded for delayed registration of the offence is clearly false.

21. The learned counsel for accused Shri R.L. Khapre is more

than justified in attacking the authenticity of the report produced on

record and the fairness of the investigation. The evidence of PW 1 and

PW 2 as regards the lodging of the report is too inconsistent to be

reconciled. PW 1 states that her husband returned to village at 5.00

p.m. and then she alongwith her husband went to Ansing police

station, the report was typed written in the premises of the police

station and lodged on 10.8.2004. This evidence is totally inconsistent

15 apeal31.06

with the testimony of her husband PW 2 who claims to have reached

Washim at 5.00 p.m., which is a physical impossibility since he

returned to his village at 5.00 p.m. and got the written report drafted

from advocate Shri Ingle at Washim and then to have come to Ansing

Police Station to lodge the report. The prosecution has not made any

effort whatsoever to explain why no action was initiated on the report

lodged on 10.8.2004 till 24.8.2004. It is already noticed supra that

according to the printed First Information Report, the information was

received from the complainant on 24.8.2004 and the explanation for

delayed report is recorded as "after inspecting the spot of occurrence".

The fact that the contents of the First Information Report Exh. 23 are

falsified by the irrefutable position on record that there was no

inspection of the scene of occurrence prior to 25.8.2004, must put the

Court on guard and the evidence of PW 1 and PW 2 must be

scrutinized closely and with extreme caution in the light of the

submission of the learned counsel Shri R.L. Khapre that the very

authenticity of the report is suspect. The inconsistencies and

discrepancies inter se in the evidence of PW 1 and PW 2, the failure of

the prosecution to explain as to what transpired between 10.8.2004 to

24.8.2004, and the ex facie falsehood in the printed First Information

Report Exh. 23 cumulatively satisfies the conscious of the Court that

16 apeal31.06

the defence has created sufficient doubt about the veracity and indeed

the authenticity of the report of the incident.

22. The motive for false implication or at any rate for over

implication is brought on record by the defence. It is not in dispute

that PW 1 and PW 2 are encroachers on government land. It is further

not in dispute that the accused were attempting to clear the

encroachment and to the said end were lodging complaints with the

concerned officials. It is admitted by the PW 1 that even in the past she

and her husband lodged reports against the previous Sarpanch and the

tahsildar respectively alleging that the Sarpanch and the tahsildar

abused PW 1 and PW 2. The obvious motive to falsely implicate or

over implicate the accused is an additional circumstance to test the

evidence of PW 1 and PW 2 with extreme caution.

23. The witnesses to the spot panchanama PW 3 Sheshrao and

PW 4 Kisan did not support the prosecution. It is only PW 7 -

Investigating Officer who has proved the spot panchanama. The

learned counsel for the accused Shri R.L. Khapre has invited my

attention to two glaringly significant aspects. The first aspect is that

while PW 1 states that the hut was situated on the western side corner

17 apeal31.06

of the field, the spot panchanama records that the hut is situated

adjacent to the northern embankment (Dhura). The second aspect is

that DW 1 talathi who inspected the encroachment on 4.8.2004 states

that he did not notice a hut. Apart from the fact that the witnesses to

the spot panchanama did not support the prosecution and none of the

prosecution witnesses other than PW 1 and PW 2 and the Investigating

Officer testify as to the existence of the hut, in the submission of Shri

R.L. Khapre, PW 1 and PW 2 who reside in a house in the village, are

highly unlikely have been residing in the hut in the rainy season. The

learned counsel would further submit that the spot panchanama per se

is suspect in view of the household articles and the condition thereof as

is recorded in the spot panchanama, which is concededly prepared

after 15 days of the incident, and that too in the rainy season.

24. Concededly, the only eye witness is PW 1 herself. The

police patil PW 5 has deposed that although PW 1 did approach him

at 11.00 a.m. on the day of the incident, she made a limited complaint

that her crops were damaged. The police patil has deposed that he did

accompany PW 1 to the field in her possession but then he did not

notice any hut. The police patil states that no names were disclosed by

PW 1. Nothing is elicited in the cross-examination on behalf of the

18 apeal31.06

prosecution of the police patil who was declared hostile, to assist the

prosecution. The evidence of PW 1 Yashodabai is not corroborated by

any other witnesses except her husband PW 2 who claims that when he

returned from Washim at 5.00 p.m., the incident was narrated to him

by his wife PW 1. I have already observed that the evidence as regards

the lodging of the report on 10.8.2004 is marred by serious infirmities,

in the teeth of evidence on record, it would be extremely unsafe and

hazardous to hold that the prosecution has proved the offence beyond

reasonable doubt, only on the basis of the evidence of PW 1

Yashodabai.

25. It is trite law, that conviction can not be based on

suspicion, howsoever, grave the suspicion may be. The prosecution has

not bridged the gulf between suspicion and proof by cogent and

unimpeachable evidence. The accused deserve to be given benefit of

doubt which I am inclined to do. In the result, I pass following order:

(i) The judgment and order impugned is set aside and the accused are acquitted of offence punishable under Sections 143, 436, 427 and 323 read with Section 34 of the Indian Penal Code.

                                              19                                           apeal31.06




                    (ii)    The bail bond of the accused shall stand discharged. Fine