State Of Maha vs Tilakraj Vithalrao Duthade & Anr
2018 Latest Caselaw 748 Bom

                                    1                             Cri.Al.-269-04

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 269 OF 2004

 The State of Maharashtra
 Through Police Station Officer
 Police Station Bhagyanagar, Nanded.          ..       Appellant
                                                       (Original Complainant)
                  Versus
 1.       Tilakraj s/o. Vithalrao Duthade,
          Age 32 years, Occu. Service,
          R/o. Vishnu Complex, Nanded.
 2.       Balwant S/o. Tukaram Birhade,
          Age 61 years, Occu. Pensioner,
          R/o. Parasnagar, Nanded.            ..      Respondents
                                                     (Original Accused)
                                     ...
 Mr. R. B. Bagul, APP for Appellant.
 Mr. Joydeep Chattarjee, Advocate for respondents No. 1 and 2 (Absent)
                                     ...
                                  WITH
       CRIMINAL REVISION APPLICATION NO. 229 OF 2004

 Prakash S/o. Madhavrao Vasmate,
 Age Major, Occu. Service,
 R/o. Bhagyanagar, Nanded.                    ..         Petitioner
                                                       (Complainant)
          Versus

 1.       State of Maharashtra,
          Through Police Station Officer,
          Bhagyanagar, Nanded.
 2.       Tilakraj s/o. Vithalrao Duthade,
          Age 32 years, Occu. Service,
          R/o. Vishnu Complex, Nanded.
 3.       Balwant s/o. Tukaram Birhade,
          Age 61 years, Occu. Pensioner,
          R/o. Parasnagar, Nanded.            ..        Respondents
                                                         (Accused)
                                   ...
 Mr. S. V. Kurundkar, Advocate for revision-applicant.
 Mr. R. B. Bagul, APP for respondent No.1-State.
 Mr. Joydeep Chatterjee for respondents No. 2 and 3 (Absent).
                                   ...

                                        CORAM : K.K. SONAWANE, J.

DATED : 20th JANUARY, 2018.

                                        2                               Cri.Al.-269-04

 JUDGMENT :-

1. Taking recourse of remedy under Section 378 of Criminal

Procedure Code (for short "Cr.P.C."), the prosecution / State of

Maharashtra preferred the present appeal agitating the validity and

propriety of the impugned judgment and order of acquittal of both the

respondents for the offence punishable under sections 452, 324, 323,

504 and 506 read with section 34 of the Indian Penal Code (for short

"IPC") in Regular Criminal Case No. 525 of 2003 dated 17-01-2004

passed by the 2nd Joint Judicial Magistrate, First Class, Nanded.

2. The first informant-original complainant Shri. Prakash

Vasmate also filed Criminal Revision Application No. 229 of 2004 and

put in controversy the legality and correctness of the impugned

findings of learned trial Court, acquitting both the respondents-original

accused for the charges pitted against them. The proceedings of

appeal and revision are emanated from one and the same judgment

and order of acquittal of respondents-accused, therefore, both the

proceedings are being dealt with simultaneously for its adjudication on

merit by this common judgment.

3. It has been alleged on behalf of prosecution that the first

informant-complainant Shri. Prakash Vasmate, on 24-03-2003

approached to the Bhagyanagar Police Station, Nanded and filed a

report that he was in Government Service as a Executive Engineer in

Irrigation Department, Nanded. On the day of incident i.e. 24-03-

2003, he was not keeping good health, and therefore, he was at home.

His friends namely Kailas Rathi and Chakradhar Hanmantrao Shinde at

about 11.15 a.m. came to his house to see him. When they were chit-

3 Cri.Al.-269-04

chatting in the house, that time both the respondent-accused barged

into drawing room of the complainant. They started hurling abuses

filthily. The accused reprimanded the complainant for his frequent

transfer in the office. The accused cast allegations that the

complainant used to instigate their office superior against him. During

the altercation, the accused No.1 Tilakraj Duthade dealt a fist blow and

inflicted bleeding injuries near the left eye of the complainant. The

accused No. 2 Balwant Birhade gave threat to kill the complainant by

firing from pistol. Thereafter, both the accused went away by their

mother vehicle car No. MXV-52. The injured Shri. Prakash Vasmate

rushed to the police station and filed the report.

4. Pursuant to First Information Report (FIR), the police of

Bhagyanagar Police Station, Nanded registered the crime No. 72 of

2003 under Sections 452, 324, 323, 504 and 506 read with Section 34

of IPC and set the penal law in motion. The Investigation Officer

visited to scene of occurrence and drawn spot panchnama. He

recorded statement of witnesses acquainted with the facts of the case.

The injured complainant was referred to hospital for medical treatment.

The Investigating Officer collected documents of medical certificate,

etc. After completion of investigation, the chargesheet came to be filed

against the accused before the court of Judicial Magistrate, First Class,

Nanded.

5. After compliance of procedural formalities, learned trial

Court framed the charges against both the accused. They pleaded not

guilty and claimed for trial. In order to bring home guilt of the

accused, prosecution examined in all six witnesses in this case.

4 Cri.Al.-269-04

Learned Magistrate recorded statement of accused prescribed under

section 313 of Cr.P.C. After due consideration of entire oral and

circumstantial evidence on record, the learned Magistrate arrived at the

conclusion that both the accused could not be held guilty for the

charges pitted against them. Therefore, learned Magistrate passed the

impugned judgment and order of acquittal, the validity of which is

agitated in the present appeal.

6. The learned prosecutor vehemently submitted that the

impugned judgment and order of acquittal of respondent-accused is

erroneous, illegal and not within the purview of law. The learned trial

Court did not appreciate the entire evidence on record in its proper

perspective. The first informant - P.W.No.1 Prakash Vasmate - the

injured has categorically narrated the incident of abusing filthily,

assaulting by fist blows resulting into bleeding injuries etc. in explicit

manner. His evidence was corroborated by P.W.No.3 Chakradhar

Shinde and P.W.No.4 Vijay Bhaganagare. The medical certificate

produced on record by P.W.No.5 Dr. Yogesh Mohanrao Kokadwar

strengthen the version of complainant. But the learned trial Court did

not appreciate all these circumstances in proper manner and drawn

erroneous conclusion of acquittal for failure of prosecution to prove the

charges against accused beyond all reasonable doubt. According to

learned prosecutor, the impugned judgment and order of acquittal is

bad in law, and therefore, deserves to be set aside and quashed.

7. The learned counsel for revision petitioner-original

complainant also stepped into the shoe of learned APP and argued that

the findings of acquittal of accused by the learned trial Court are

5 Cri.Al.-269-04

imperfect, erroneous and not in proper perspective of the evidence

adduced on record. He requested to up-set the findings of acquittal of

the respondent-accused and they be convicted for the charges pitted

against them.

8. It is settled principle of law that in the appeal against

acquittal, the High Court is empower to review, re-appreciate or re-

appraise the evidence of prosecution to arrive at its own conclusion.

But, the acquittal of accused should not be disturbed unless the

findings of trial court are perverse. If the view taken by the learned

trial court is possible and plausible view and no infirmity noticed in the

findings, no interference warranted in it. It is also imperative to take

into consideration the well settled principle of presumption of innocence

of the accused, while re-assessment of evidence of prosecution.

9. Keeping in mind the aforesaid principle of law, the

evidence of prosecution witnesses came to be analysed. The intense

scrutiny of the entire oral and circumstantial evidence adduced on

record reveals that the view taken by the learned trial Court for

acquittal of respondent-accused is plausible and possible view and no

perversity seen in the findings of trial Court. Therefore, circumstances

on record do not permit to cause any interference in it.

10. Admittedly, in order to bring home guilt of the accused,

prosecution examined first informant-complainant P.W.No.1 Prakash

Vasmate in this case. He was the Government Employee and assigned

responsibility as an executive engineer in Irrigation Department,

Nanded. The respondent-accused No.1 Tilakraj Duthade was also one

of the Government Personnel being an Executive Engineer attached to

6 Cri.Al.-269-04

the Mechanical Division of Irrigation Department, Nanded. The

P.W.No.1 Prakash Vasmate, in his examination-in-chief deposed that,

on the day of incident i.e. 24-03-2003 he was not keeping good health.

Therefore, he was at home located in Shahunagar area, Nanded. At

about 11.15 a.m. his friends Kailas Rathi and Bhaganagare as well as

Chakradhar Shinde came to see him. While they were chit-chatting in

the room at first floor of the house of complainant, both the accused

arrived there, they hurled the abuses filthily to the complainant saying

"Madarchod". The accused also alleged that the complainant is

misleading his superior officer and get the accused transferred in the

office frequently. The accused No.1, thereafter, gave fist blow on the

face near left eye of the complainant and caused bleeding injuries. The

accused No.2, father-in-law of the accused No.1, threatened to kill by

firing with his pistol. But, the friends of first informant-complainant,

Shri. Bhangangare, Rathi and other intervened in the fight. Thereafter,

both the accused went away. The first informant P.W.No.1 Prakash

Vasmate was cross-examined on behalf of respondent-accused. In the

cross-examination, P.W.No.1 Prakash Vasmate conceded about filing of

criminal complaint against him vide Crime No. 23 of 2003 under

Section 509 of the IPC for the allegations of his attempt to insult the

modesty of wife of accused No.1. It has brought on record that the

complainant was not keeping good health on 24-03-2003, but he did

not avail medical leave, however, he forwarded his casual leave

application at about 1.30 p.m. to his office after occurrence of alleged

incident. In the application, he has mentioned the cause about his ill-

health, but he did not make any reference of occurrence of alleged

7 Cri.Al.-269-04

incident in his casual leave application forwarded to the office. There is

no official document on record that the complainant ventilated his

grievance against accused No. 1 to his superior for any departmental

proceeding. In contrast, the complainant Shri. Vasmate was arraigned

for accusation of misbehaviour with wife of accused No.1.

11. It has also brought on record that the complainant has not

seen the accused arrived in vehicle car bearing No. MXV-52 belonging

to the office of Irrigation Department and assigned to the accused No.1

Shri. Tilakraj Duthade, being an Executive Engineer. However, in FIR

(Exhibit-15), the complainant categorically mentioned that both the

accused arrived at the spot in vehicle Car No. MXV-52. Moreover, the

complainant shown inability to state as to whether the weapon pistole

was in the custody of accused No.2 Balwant Birhade at the time of

alleged incident. In such circumstances, it would difficult to understand

as to how the accused No.2 Shri. Balwant Birhade gave threat of life to

the complainant at the point of weapon pistol. These discrepancies

created clouds of doubt about the veracity of evidence of first

informant-complainant P.W.No.1 Prakash Vasmate.

12. The alleged incident of assault occurred at about 11.00 to

11.30 a.m. But, the FIR came to be lodged at about 3.00 p.m. There

was delay of 4/5 hours to lodge the FIR to the police. The delay in FIR

created doubt about its genuineness. In the evidence, there was

attempt to explain the cause of delay on record. The complainant

deposed that he was diabetic patient and after the alleged incident, he

felt somewhat giddiness. Therefore, he had taken rest for some time,

and thereafter, in the noon hours he filed FIR. However, these

8 Cri.Al.-269-04

circumstances are absent from the FIR (Exhibit-15) which came to be

lodged after about 4/5 hours of the alleged incident. Taking into

consideration the official status of the complainant being an Executive

Engineer of the Irrigation Department, it would reasonable expectation

that he should take prompt action against the wrong doers. It is also

strange to appreciate that due to alleged incident he could not file FIR

promptly at the earliest. But, he made it convenient to forward his

leave application to the office at about 1.30 p.m. These all

circumstances created doubt about the credibility of evidence of

P.W.No.1 Shri. Prakash Vasmate.

13. The prosecution examined P.W.No.3 Chakradhar Shinde

and P.W.No.4 Vijay Bhaganagare to corroborate the testimony of first

informant-complainant P.W.No.1 Prakash Vasmate. But, the evidence

of these witnesses appears cryptic and slender in nature. They did not

describe the incident of assault in detail nor they explain overact of

each of the accused in the fight. There are material discrepancies in

the evidence of these witnesses. The P.W.No.3 Chakradhar Shinde and

P.W.No.4 Vijay Bhaganagare were the office colleague of complainant,

and obviously, their evidence is required to be viewed as version of

interested and partisans witness in this case. They did not give detail

account of overact of each of the accused in this case. The P.W.No.3

Chakradhar Shinde and P.W.No.4 Vijay Bhaganagare stated that they

intervened in the fight and separated the accused and the complainant

at the time of incident. But, the P.W.No.1 first informant-complainant

maintained silence that these witnesses intervened in the fight. The

P.W.No.3 Chakradhar Shinde deposed that at the time of alleged

9 Cri.Al.-269-04

incident P.W.No.4 Vijay Bhaganagare told accused No.1 Tilakraj

Duthade and his father-in-law accused No.2 Balwant Birhade not to

quarrel and go away from the spot of incident. Accordingly, both

accused No. 1 and 2 came down stair and went away by their vehicle

No. MXV-52. However, P.W.No.4 Vijay Bhaganagare had not stated all

these facts in his evidence before the learned trial court. He simply

stated that he attempted to pacify the accused, and thereafter, both

accused went away. In the cross-examination of P.W.No.4 Vijay

Bhaganagare, it has brought on record that all these witnesses i.e.

Kailas Rathi, Chakradhar Shinde and P.W.No.4 Vijay all were

accompanied with the first informant-complainant Prakash Vasmate at

the police station while lodging the complaint. There were some

neighbourers in the police station with the complainant. After FIR, the

complainant Prakash was referred to the hospital for medical treatment

in presence of P.W.No.4 Vijay Bhaganagare.

14. It would be reiterated that as discussed above, the

P.W.No.3 Chakradhar Shinde, P.W.No.4 Vijay Bhaganagare were office

colleague of the complainant. In view of circumstances on record

relating to office politics, these witnesses appear to be interested

witnesses in this case. The neighbourers accompanied with the

complainant at the police station for lodging FIR did not come forward

to corroborate the testimony of P.W.No.1 Shri. Prakash Vasmate. The

medical certificate produced on record could not prop-up the weak

edifice of the prosecution case. The occurrence of alleged incident of

assault by the respondent-accused to complainant itself seems to be

doubtful. The medical certificate produced on record shows simple

10 Cri.Al.-269-04

incised wound by sharp weapon to the first informant-complainant. It

is to be noted that the prosecution witnesses did not state about any

sharp weapon in the custody of accused at the time of alleged incident.

The medical expert P.W.No.4 Dr. Kokadwar drawn inference that the

injuries to the complainant might have been caused due to finger ring

of the accused. But, the prosecution witnesses did not unfurl these

circumstances in explicit manner to prove the nexus of accused with

the alleged injury caused to the first informant-complainant P.W.No.1

Prakash Vasmate.

15. At this juncture, it is also essential to take into

consideration the circumstance of animosity in between the

complainant and accused. In the cross-examination, it has brought on

record that since last 2-3 years, there were strain relation in between

both the complainant and the accused. It has not denied that day

before the alleged incident, the wife of accused No.1 filed the FIR for

the offence punishable under section 509 of the IPC against the

complainant. The crime No. 23 of 2003 came to be registered for his

vulgar attempt to commit outrage of modesty of the wife of accused

No.1 Tilakraj Duthade. The scrutiny of evidence of prosecution reflects

the possibility of filing present FIR only to give counter blow to the

criminal complaint filed by the wife of accused No.1. In short, all these

criminal actions are the fall-out of strain relations in between

complainant and accused. Therefore, independent corroboration is

essential for consideration to bring home guilt of the accused.

Unfortunately, there is no independent evidence available on record to

fortify the allegations against accused.

11 Cri.Al.-269-04

16. There is also no satisfactory explanation for belated FIR by

sophisticated, educated and highly ranked officer of the Irrigation

Department. The circumstances of delay in FIR found detrimental to

the prosecution case. Therefore, there is no propriety to draw any sort

of adverse inference against the accused at the instance of prosecution.

The learned trial Court correctly appreciated the evidence on record in

its proper prospective. The inference and conclusion drawn by the

learned trial Court does appear just, proper and reasonable. The

prosecution has failed to prove the charges pitted against the accused

beyond all reasonable doubt. Therefore, it would unjust and improper

to cause any interference in the findings expressed by trial court for

acquittal of the accused in this case. The appeal as well as revision

petition being devoid of merit deserve to be dismissed.

17. In sequel, appeal stands dismissed. No order as to costs.

In view of dismissal of appeal, nothing survive for consideration in

criminal revision filed on behalf of complainant i.e. first informant- Shri.

Prakash Vasmate. Therefore, revision petition also stands dismissed.

18. Accordingly, the appeal and criminal revision application

stand disposed of in above terms.

Sd./-

[ K. K. SONAWANE ] JUDGE

rrd.