State Of Maha vs Chandrakant Dinkar Somwanshi & ...
2018 Latest Caselaw 115 Bom

                                                              Cri.Appeal 194/2004
                                          1

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

                         CRIMINAL APPEAL NO. 194 OF 2004

The State of Maharashtra,
Through Police Station, Pachora,
Taluka Pachora, Dist. Jalgaon                          ..Appellant

        Versus

1.      Chandrakant Dinkar Somwanshi,
        Age 19 years

2.      Suresh Fakira Koli,
        Age 29 years

3.      Pradip Narsing Somwanshi,
        Age 32 years

4.      Rajendra Vasantrao Somwanshi,
        Age 25 years

5.      Arun Krishnarao Somwanshi
        Age 25 years

6.      Soniram Vitthal Patil
        Age 48 years

7.      Vishwanath Vyankat Somwanshi
        Age 42 yeas

        No.1, 3 to7 R/o Balad,
        Taluka Pachora,
        No.2 R/o Balad Khurd,
        Taluka Bhadgaon, Dist. Jalgaon         ..Respondents

Mr C.S. Kulkarni, A.P.P. for appellant Mr R.N. Dhorde, Senior Counsel i/b Mr V.R. Dhorde, Advocate for respondents no.1 to 7

- WITH -

CRIMINAL REVISION APPLICATION NO.365 OF 2003

Ravindra s/o Ramkisan Zanwar, Age 48 years, Occu. Agricultural, R/o Balad, Taluka Pachora, District Jalgaon ..Petitioner

Versus

1. The State of Maharashtra, Through P.S.I., Police Station, Pachora, District Jalgaon

Cri.Appeal 194/2004

2. Chandrakant s/o Dinkar Somwanshi, Age 28 years

3. Suresh s/o Fakira Koli, Age 38 years

4. Pradip s/o Narsing Somwanshi, Age 41 years

5. Rajendra s/o Vasantrao Somwanshi, Age 34 years

6. Arun s/o Krishnarao Somwanshi Age 34 years

7. Soniram s/o Vitthal Patil Age 57 years

8. Vishwanath Vyankat Somwanshi Age 51 yeas

No.2, 4 to 8 R/o Balad, Taluka Pachora, No.3 R/o Balad Khurd, Taluka Bhadgaon, Dist. Jalgaon ..Respondents

Mr Mahesh S. Deshmukh, Advocate for petitioner Mr C.S. Kulkarni, A.G.P. for respondent no.1 Mr R.N. Dhorde, Senior Counsel i/b Mr V.R.Dhorde, Advocate for respondents no.2 to 8

CORAM : S.S. SHINDE AND A.M. DHAVALE, JJ

DATE : 6th January 2018

ORAL JUDGMENT (Per A.M. Dhavale, J.)

1. In Regular Criminal Case No.172/1994, all the respondents as

accused persons were prosecuted before Judicial Magistrate, First

Class, Pachora for offences punishable under Sections 147, 148, 324,

326, 506 read with Section 149 of Indian Penal Code for causing

grievous injury to Motilal and Ravindra for Offences punishable under

Sections 324 and 506 of Indian Penal Code.

Cri.Appeal 194/2004

2. By judgment dated 16.7.2003, all the accused were acquitted of

the offences charged. Hence, the aggrieved State has preferred

Criminal Appeal No.194 of 2004 against acquittal, whereas the

informant Ravindra Zanwar has preferred Criminal Revision

Application No.365 of 2003.

3. The facts relevant for deciding these matters may be stated as

follows.

On 4.10.1994 at 3.10 p.m., P.W.1 Ravindra Zanwar lodged F.I.R.

Exh.89 at Pachora Police Station. As per his F.I.R., he was working as

Sarpanch at Balad from 1989. On the earlier day 3.10.1994, he had

attended office of Block Development Officer for a meeting of

Sarpanch and Gramsevak. After completing his private work, he along

with Motilal was returning by Bajaj M-80 bike bearing registration

No.MH-19-B-6815 to Balad. At about 9.30 to 9.45 p.m., he came near

the railway gate, which was closed. That time, accused no.3 Pradeep

Narsing and accused no.5 Arun also halted near the closed railway

gate and on opening the gate, they overtook them. When they came

about 1 Km. ahead of village Lohatar, he slowed down the bike, as the

road was not good. That time, in the light of bike he saw accused

no.1 Chandrakant and accused no.2 Suresh, accused no.3 Pradeep,

accused no.5 Arun, accused no.6 Soniram, accused no.7 Vishwanath

and accused no.4 Rajendra were also standing by the side of the road.

Chandrakant came there and gave him a slap on right cheek. He

raised shouts and his bike fell down. Then, accused no.2 Suresh came

ahead and inflicted a blow of sharp weapon on his skull and the

remaining accused assaulted him with fist and kick blows and sticks.

Cri.Appeal 194/2004

Along with him, Motilal was also assaulted. They were instigating

each other that they should be killed. When P.W.1 Ravindra was

trying to escape from them, somebody gave a stick blow on his

shoulder. He escaped and entered the crop. Chandrakant was Deputy

Sarpanch and he had brought no confidence motion against him, but

it was unsuccessful and P.W.1 Ravindra was appointed as an

Administrator. Hence, they were assaulted. On the basis of such

F.I.R., crime was registered at C.R.No.134/1994 and the same was

investigated into. The spot panchnama was drawn, medical treatment

was given to the injured and their medical certificates were collected.

Statements of material witnesses were recorded and after completion

of investigation, charge-sheet was submitted in the Court of Judicial

Magistrate, First Class, Pachora.

4. The learned Magistrate framed charge against all the accused

for offences punishable under Sections 147, 148 read with Sec.149,

326, 324 and 506 of Indian Penal Code. The accused pleaded not

guilty. The prosecution examined six witnesses. The learned Judicial

Magistrate, First Class disbelieved the prosecution case and acquitted

the accused. Hence, this appeal and Criminal Revision Application.

5. Learned A.P.P. Mr C.S. Kulkarni argued that accused no.1 has

political enmity with P.W.1 Ravindra Zanwar as they belong to

different parties. The evidence of P.W.1 Ravindra is cogent and

consistent with the F.I.R. It is supported by medical evidence and

evidence of P.W.2 Motilal. The learned trial Judge should have

believed the evidence and should have convicted the accused.

Cri.Appeal 194/2004

6. Per contra, learned Senior Counsel Mr Dhorde supported the

judgment of the trial Court. He argued that the incident took place at

10.00 p.m. when there was no source of light. As per evidence of

Dr.Ramkrishna Teli, P.W.1 Ravindra was having only two injuries and

P.W.2 Motilal was also having only two injuries. Therefore, the

involvement of the seven accused indicates that there was false

implication. There is no consistency in the evidence. Learned trial

Judge has rightly appreciated the evidence and the view taken by him

is reasonable and probable view. Hence, the same should not be

interfered with.

7. The points for our consideration with our findings are as follows:

(I)     Whether accused nos.1 to 7 formed
        unlawful assembly with a common
        object to assault P.W.1 Ravindra and
        P.W.2 Motilal ?                                ..Not proved

(II)    Whether accused nos.1 to 7 in
        prosecution of common object
        voluntarily caused grievous hurt
        to P.W.1 Ravindra and simple hurt
        by deadly weapon to P.W.2
        Motilal ?                                      ..Not proved

(III)   Whether the accused nos.1 to 7
        in prosecution of common
        object of assembly criminally
        intimidated to P.W.1 Ravindra?                 ..Not proved

(IV)    What order and sentence ?                      ..Criminal Appeal and
                                                         Criminal Revision
                                                         Application are
                                                         dismissed.




                                                                          Cri.Appeal 194/2004




                                          - REASONS -

8. P.W.1 Ravindra has deposed that he was Sarpanch and on

3.10.1994, after attending the meeting at B.D.O. Office, he was

returning to Balad at late night. P.W.3 Motilal was along with him and

they were coming on his own bike Bajaj M-80 bearing No.MH-19-B-

6815. They left Pachora at 9.30 p.m. and stopped near the railway

gate. That time, accused no.3 Pradeep and accused no.5 Arun also

came there on Rajdoot bike and stopped near them. After some time,

the gate opened and they overtook them. He stated that when they

came at some distance from Lohatar, all the accused came in front of

their bike. Accused no.1 Chandrakant gave him a slap on right cheek.

He fell down from the bike. Then Suresh (A-2) gave blow of some

sharp weapon on his skull and thereafter all the accused assaulted

him and Motilal by means of fist and kick blows and sticks. That time,

Chandrakant (A-1) and Suresh (A-2)were instigating the other accused

to kill them. He further stated that one of the accused had given a

blow of some object on his right shoulder with full force, but he and

Motilal fled away and saved their lives. He had sustained injury on

cheek, right ear and nose. It was on account of political enmity and

his appointment as Administrator in spite of resistance of

Chandrakant (A-1), who was Deputy Sarpanch. On the same night, he

had gone to the village Lohatar and thereafter by jeep to Pachora at

the police station. Then, he was referred to Medical Hospital, Pachora

and thereafter to Civil Hospital, Jalgaon. His F.I.R. was recorded. It is

at Exh.89. P.W.2 Motilal has supported him on material aspects. He

Cri.Appeal 194/2004

had been to Pachora for his personal work of payments. Then,

Sarpanch P.W.1 Ravindra met him at Pachora and they were coming

by M-80 bike at 9.00 p.m. He narrated the waiting of P.W.3 Prakash

and P.W.5 Arun near the railway gate and subsequent attack by

accused nos.1 to 7 on them. He stated that near the railway gate,

accused Prakash and Arun were looking at them with inimical eyes

and he requested Ravindra to allow him to get down, but Ravindra did

not allow him. He thereafter deposed about obstruction to them by

the accused. He stated that accused no.1 Chandrakant first gave slap

to Ravindra on right cheek and thereafter accused Suresh assaulted

him with sharp weapon on head and thereafter Suresh had given kicks

to him. Then, other accused had stretched his legs and took him to

some distance and by pressing his neck, pelted stones on his back.

Accused no.1 Chandrakant accosted him why he accompanied P.W.1

Ravindra. He then begged for mercy. Then, he was left and Ravindra

was assaulted by the accused. When they were lying down, the

accused left the spot and thereafter he went to Ravindra, saw his

injuries. His clothes were stained with blood. Then, accused no.1

Chandrakant again came on his bullet and due to fear, he and

Ravindra concealed themselves in jute crop. Thereafter, they went to

Lohatar at the house of D.A. Mahajan, who carried them to Pachora

and then to Civil Hospital, Jalgaon. He stated that he had sustained

injury on his back and shoulder. He has deposed about the medical

treatment received by him.

9. P.W.3 Motiram is a spot panch. He has proved panchnama

Exh.93. He had seen some blood stains on stones on the spot. P.W.4

Cri.Appeal 194/2004

Prakash who had held P.W.1 Ravindra and P.W.2 Motilal has turned

hostile and not supported the prosecution. He denied that blood

stained clothes of P.W.1 Ravindra were seized in his presence.

10. P.W.5 Dr. Teli was Medical Officer at Pachora. He had examined

P.W.1 Ravindra and found two injuries on his person as follows :

1) Contusion with swelling with tenderness on back, right side upper column. There were painful movements and the pain was reiterated to be right shoulder joint.

2) Clean incised wound about incised 2 ½ cm x cotter region on right occipital region. It was bone deep. There was oozing of blood as well as blood was also oozing from right ear.

11. The patient was referred to Jalgaon for radiology examination.

The certificate is at Exh.100. He then examined P.W.2 Motilal and

found following injuries on his person.

" Scratch with abrasion with swelling with tenderness on

left side. There were painful movements. Swelling with

tenderness at upper quad and back left side."

His certificate is at Exh.101.

12. P.W.6 Yadav is Investigating Officer. He has proved spot

panchnama Exh.93, seizure of blood stained clothes of Motilal Exh.120

and shirt Article 'D'. Seizure of blood stained clothes of Ravindra

Exh.121 - Articles A.B.C. He had also sent blood samples of the

Cri.Appeal 194/2004

injured to Chemical Analyst and the reports of Chemical Analyst are at

Exh.106, 107, 123 and 124. He has seized the bullet bike of accused

Chandrakant Exh.126 and proved material omissions of P.W.4 Prakash

Exh.125.

13. After carefully going through the evidence on record, we find

that there is no reason to disbelieve P.W.1 Ravindra and P.W.2 Motilal

with regard to assault on them at the relevant time, however, we find

that their evidence regarding the assailants is not trustworthy and

reliable.

14. In the first place, they have disclosed the names of seven

accused persons, whereas the total number of injuries on both of

them are only four. It is difficult to conceive that three accused

persons, who came there would only wait and stand. If each accused

would have inflicted single injury, still there would have been more

injuries. The evidence that all the accused persons assaulted them

with kick blows and sticks cannot be accepted.

15. Besides, the incident took place at 10.00 p.m. outside the

village. There was no source of light. The contention that all the

accused were seen in the light of M-80 bike is difficult to believe,

particularly P.W.1 Ravindra and P.W.2 Motilal could not tell the nature

of sharp weapons used for assaulting P.W.1 Ravindra on his skull.

16. The evidence of P.W.1 Ravindra and P.W.2 Motilal is

contradictory on some material points. According to P.W.1 Ravindra,

while the incident was going on, he and Motilal escaped from the

clutches of the accused and concealed themselves in crop. Whereas,

Cri.Appeal 194/2004

according to P.W.2 Motilal, both of them were on the ground and the

accused left the spot and when after some time accused no.1

Chandrakant returned on his bullet, they concealed themselves.

17. P.W.1 Ravindra has deposed about assault by all the accused by

fist blows, legs and sticks on himself and Motilal. Whereas, P.W.2

Motilal is not deposing about assault by any of the accused by sticks.

On the contrary, he deposed that his neck was pressed upside down

and he was assaulted on back by pelting stones. His evidence that

the accused accosted him why he accompanied P.W.1 Ravindra and

on his request he was let off is not deposed by P.W.1 Ravindra. His

cross-examination reveals that he denied any attack by sticks.

18. It is pertinent to note that there is no recovery of weapons nor

any recovery of blood stained clothes of the accused. In the light of

these facts, the learned trial Judge has disbelieved P.W.1 Ravindra and

P.W.2 Motilal. There is serious lacuna regarding the source of light on

the spot and reasonable doubt is created about the involvement of the

accused persons. It is certain that there would have been many more

injuries to both the injured in case seven accused persons would have

assaulted them simultaneously for some time. Considering the facts,

we find that the view taken by the learned trial Judge is reasonable

and probable view and the same cannot be interfered with. Hence, we

answer all the points against the prosecution and pass the following

order:

Cri.Appeal 194/2004

- ORDER -

The Criminal Appeal is dismissed. Criminal Revision Application

also stands dismissed.

       ( A.M. DHAVALE, J.)              ( S.S. SHINDE, J.)




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