State Of Maha vs Ashok Potdar & Ors
2018 Latest Caselaw 752 Bom

                                       1                              Cri.Al.-308-04

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 308 OF 2004

 The State of Maharashtra
 Through Police Station
 Jalkot, Tal. Jalkot, Dist. Latur.                 ..      Appellant
                                                           (Original Complainant)
                  Versus
 1.       Ashok Venkatrao Potdar,
          Age 30 years, Occu. Nil,
 2.       Subhash Madhavrao Panchal,
          Age 39 years, Occu. Nil,
 3.       Vasant Madhavrao Panchal,
          Age 45 years,
 4.       Gopinath Madhav Panchal,
          Age 50 years
          All r/o. Sayyedpur, Tq. Ahmedpur,
          District Latur.                          ..     Respondents
                                                         (Original Accused)
                                      ...
 Mr. B. V. Virdhe, APP for appellant.
 Mr. V. G. Sakolkar, Advocate for respondents No. 1 to 4 (Absent).
                                      ...
                                      CORAM : K.K. SONAWANE, J.

DATED : 20th JANUARY, 2018.

JUDGMENT :-

This appeal is directed against impugned judgment and

order of acquittal of the respondent-accused for the offence punishable

under Sections 324, 323, 504 and 506 read with Section 34 of the

Indian Penal Code (for short, IPC) passed by the learned Judicial

Magistrate, First Class, Udgir, in Regular Criminal Case No. 432 of 2002

dated 24-12-2003. The appellant- State of Maharashtra preferred

present appeal under Section 378 of the Code of Criminal Procedure

(for short, Cr.P.C.) to redress its grievances.

2. Heard learned APP for the appellant- State of Maharashtra.

 The learned counsel for respondent-accused remained absent.                      The




                                        2                              Cri.Al.-308-04

proceeding of appeal is pending since year 2004. Hence, it would

justifiable to proceed further for adjudication of present appeal on

merit in absence of respondent-accused.

3. The prosecution story in brief is that- the first informant

Shri Uttam Digambar Potdar, resident of Chera, Taluka Jalkot, District

Latur, on 21-11-2001 approached to the police of Jalkot Police Station

and ventilated the grievances that, in the noon at about 12.00 hours,

he had called accused Ashok Potdar r/o. Jalkot at home and

reprimanded him on account of allegations of theft of a blouse piece

kept in the shop. There were hot exchange of words in between them.

However, in the evening at about 5.00 p.m. the first informant Uttam

Digambar Potdar, his brother-in-law Yadav Vitthal Panchal, Waman

Venkati Panchal and one Chandsab Mominsab Sayyed, all were

returning to village after attaining the funeral of grandmother of the

complainant. When they reached near water hand pump in the field of

Shri. Venkatrao More near the village river, that time respondent-

accused arrived there and picked up quarrel with the first informant

Uttam. Then, respondent-accused Ashok Potdar and his maternal

cousin accused Gopinath Panchal, Vasant Panchal and Subhash

Panchal, all caught hold the first informant Uttam and started beating

to him with fists and kicks. The brother-in-law of the complainant

namely Yadav Panchal attempted to intervene in the scuffle, but

accused Gopinath attacked him with stone and inflected bleeding injury

at his head. The accused hurled the abuses filthily and gave threats of

life to the complainant. The persons Waman Panchal and Chandsab

Sayyad and others intervened in the fight and extricated the

3 Cri.Al.-308-04

complainant from clutches of the accused. Thereafter, first informant

Shri. Uttam Potdar and others rushed to the police station and filed the

report.

4. Pursuant to FIR of Uttam Potdar, the Police of Jalkot Police

Station registered the crime No. 8 of 2001 and set the penal law in

motion against the respondent-accused. The Investigating Officer

visited to the spot of incident and drawn panchnama of scene of

occurrence. The injured - first informant Uttam and his brother-in-law

both were referred to the Government Hospital for medical treatment.

I.O. recorded statement of witnesses acquainted with the facts of the

case. He collected relevant documents of medical certificate, etc. and

after completion of investigation, I.O. preferred the chargesheet

against respondent-accused.

5. The learned Magistrate, after completion of procedural

formalities, framed the charge against the accused for the allegations

levelled against them. The accused pleaded not guilty and claimed for

trial. The prosecution examined in all seven witnesses in this case to

bring home guilt of the accused. Learned Magistrate recorded the

statement of each of the accused prescribed under section 313 of the

Cr.P.C. After appreciation of arguments and entire evidence adduced

on record, learned Magistrate arrived at the conclusion that the

prosecution failed to prove the charges against each of the accused

beyond reasonable doubt. Therefore, the learned Magistrate

exonerated the respondent-accused in this case and passed the

impugned judgment and order of acquittal, which is the subject matter

of present appeal.

4 Cri.Al.-308-04

6. The learned APP vehemently argued that the learned trial

Court has grossly erred in law for not accepting the theory of

prosecution propounded against the respondent-accused. The learned

trial Court did not appreciate evidence on record in it's proper

perspective and committed error for acquittal of the accused in this

case. The learned APP submitted that P.W.No.1 Uttam and P.W.3

Yadav were the victims of the crime. The respondent-accused

assaulted them with deadly weapon like stone. The P.W.No.3 Yadav

received bleeding injury at his head. The P.W.No.4 Chandsab and

P.W.No.5 Waman were the eye-witnesses of the incident. They

described the incident of assault by the accused in detail before learned

trial court. The medical certificate of P.W.No.3 Yadav (Exhibit-31) and

P.W.No.1 Uttam (Exhibit-32) corroborated the oral evidence of

prosecution witnesses. According to learned APP, the impugned

judgment and order of acquittal passed by the learned trial Court is

perverse and not within the ambit of law. Hence, he prayed to up-set

the findings of acquittal passed by the learned trial Court by allowing

appeal and respondent-accused be convicted for the offence levelled

aginst them.

7. I have given anxious consideration to the arguments

advanced on behalf of learned APP. I have also delved into the entire

oral and circumstantial evidence adduced on record, I do not find

substance in the contentions propounded on behalf of learned APP for

any adverse inference against the accused.

8. P.W.No.1 Uttam Potdar stepped into the witness box and

deposed that on the day of incident at about 5.00 p.m., they attended

5 Cri.Al.-308-04

the funeral of grand-mother Sonabai at village Chera. When they were

returning to village, they came up to the water hand pump. But, the

respondent-accused Ashok instigated his accomplice by saying "Maro-

Maro". Thereafter, all other accused started assaulting the complainant

Uttam by means of stones. The complainant sustained injuries on his

shoulder and ear. Meanwhile, persons namely Waman Panchal and

Yadav Panchal attempted to intervene in the fight, but the accused

Gopinath attacked Yadav Panchal by stone and inflicted serious injuries

at his head. Thereafter, the first informant accompanied with injured

Yadav rushed to the Jalkot Police Station and filed report.

9. The P.W.No.3 injured Yadav testified that after attaining

the funeral of Sonabai, they came to water hand pump and at that time

respondent-accused attacked the complainant Uttam on account of

making inquiry about the blouse piece. They assaulted the complainant

by means of stone on his backside as well as shoulder. Thereafter, he

himself and one Chandsab as well as Waman tried to rescue the

complainant, but, accused Gopinath and Vasant dealt a blow of stone

on his head and caused bleeding injury to him. Thereafter, he was

taken to village and later-on proceeded to police station by auto. The

first informant- Uttam filed the report in the police station.

10. The P.W.No.4 Chandsab was examined by the prosecution

being one of the eye-witness of the incident. He stated that when they

all were at water hand pump for washing the hands that time accused

made inquiry towards Uttam about blouse piece. Thereafter, accused

Vasant and Gopinath started assaulting the complainant by stones.

The person Yadav tried to rescue Uttam, but accused Vasant gave blow

6 Cri.Al.-308-04

of stone and caused injuries at his head. The witness Chandsab also

tried to intervene in the quarrel, but he was also abused and slapped

by the accused. Thereafter, they all went to the police station and filed

the report.

11. The P.W.No.5 Waman stated the similar facts before the

learned trial court in his evidence. He stated that whey they were at

the hand pump for washing hand that time quarrel was going on in

between accused and Uttam on account of blouse piece. Accused

Vasant and Gopinath assaulted Uttam by means of stone over his

shoulder and back side of ear. At the same time, accused Gopinath

and Vasant assaulted Yadav by means of stone and caused grievous

injury to his head. Thereafter, onlookers thronged at the spot

intervened in the fight and rescued the complainant from the clutches

of accused. P.W.No.5 Waman further added that he was also beaten

by accused- Gopinath during the scuffle.

12. The intense scrutiny of the evidence of star witnesses of

the prosecution reflects that there are material discrepancies in their

evidence recorded before trial court. The P.W.No.1 Uttam stated that

he was attacked by accused with kicks and fists, whereas, other eye

witnesses stated that Uttam was being assaulted by means of stone.

The P.W.No.1 Uttam further disclosed that the accused Gopinath alone

assaulted the P.W.No.3 Yadav with stone at his head and inflected

bleeding injury. However, P.W.No.3 Yadav, P.W.No.4 Chandsab and

P.W.No.5 Waman divulged that P.W.No.3 Yadav was attacked by

accused Gopinath and Vasant by means of stones. It has brought on

record that the accused also attacked P.W.No.4 Chandsab and

7 Cri.Al.-308-04

P.W.No.5 Waman during the scuffle. But, the complainant P.W.No.1

Uttam and P.W.No.3 Yadav did not mention in their evidence about the

assault by the accused to P.W.No.4 Chandsab and P.W.No.5 Waman.

It is strange to appreciate that when P.W.No.1 Uttam was attacked by

the assailants all four in number with deadly weapon like stone, in such

situation, he should have received multiple fatal injuries. But, the

medical certificate of P.W.No.1 Uttam (Exhibit-32) produced on record

in the evidence of P.W.No.6 Dr. Sontakke demonstrates only single

injury like contusion and it was simple in nature. There were no other

injury noticed from the person of P.W.No.1 Uttam. Moreover, P.W.No.3

Yadav was attacked by accused Gopinath and Vasant by means of

stone and naturally there would have been more number of injuries to

him. But, P.W.No.6 Dr. Sontakke observed only simple nature of

contusion with abrasion on the left side of his head. The medical

certificates (Exhibits- 31 and 32) produced on record totally belies the

story of prosecution witnesses that the P.W.No.1 Uttam and P.W.No.3

Yadav were attacked by the accused, who were four in number by

means of stones.

13. In cross-examination it has brought on record that the

respondent-accused Ashok Potdar and the complainant P.W.No.1 Uttam

were on inimical terms following their rented premises of shops at

village Jalkot. The P.W.No.1 Uttam was doing the business as a

goldsmith and his shop was abutting to the shop of accused Ashok in

same premise having temporary wooden partition in between them.

The P.W.No.1 Uttam closed his business in Jalkot village, but his

articles of the shop were retained by the landlord for recovery of rent

8 Cri.Al.-308-04

arrears. It has been alleged that the accused Ashok did not allow the

complainant Uttam to take away his articles from the shop without

permission of the landlord and on this count their relation became

strained. It has been alleged on behalf of accused that the present

complaint is fall out of strained relations in between them.

14. Admittedly, the inimical terms in between complainant and

the accused impelled to scrutinize the evidence of related and

interested witnesses with reasonable care and caution. The P.W.No.3

Yadav and P.W.No.5 Waman are the relatives of P.W.No.1 Uttam.

P.W.No.4 Chandsab was the resident of same village of the

complainant. The prosecution did not examine any other independent

witness in this case. The improvements made by the prosecution

witnesses in their deposition before the learned trial Court devastated

the gravity of allegation nurtured on behalf of prosecution. The

P.W.No.1 Uttam did not mention in his FIR as well as deposition before

the learned trial Court about any conversation in between himself and

the accused at the spot of incident. But, the P.W.No.4 Chandsab

disclosed that accused made inquiry with Uttam about blouse piece.

The improvement in his evidence in regard to hurling abuses and giving

slap to him by accused found detrimental to prosecution case. It would

cause dent in credibility of the evidence of P.W.No.4 Chandsab.

15. The over all scrutiny of the evidence of prosecution

witnesses demonstrate that the oral evidence of the prosecution

witnesses do not inspire confidence and not free from blemish. There

are material discrepancy and improvement in their evidence before the

learned trial Court. The prosecution witnesses did not take care to

9 Cri.Al.-308-04

elucidate overact of each of the assailants while assailing P.W.No.1

complainant Uttam and P.W.No.3 Yadav. In such backdrop, it would

unsafe to draw adverse inference against the accused for the charges

pitted against them.

16. Undoubtedly, in present appeal against acquittal of the

respondent-accused, this court is empower to review and re-appreciate

entire evidence adduced on record on behalf of prosecution and to

come its own conclusion, keeping in view the well established principle

of presumption of innocence of the accused. But, while reassessment

and re-appreciating the evidence of prosecution, if it is found that there

was no any perversity in the reasoning expressed by the learned trial

Court while acquitting the respondent-accused, there would not be any

interference in it. The view taken by the learned trial Court is a

possible and plausible view to be taken on the basis of evidence on

record. The findings of acquittal passed by the trial Court does not

warrant any interference. There are no good reason available to cause

interference in the conclusion drawn by learned trial Court. In such

circumstances, there is no alternative but to dismiss the appeal. The

findings of acquittal expressed by learned trial Court liable to be made

absolute and confirmed. In the result, the appeal deserves to be

dismissed.

17. Accordingly, the appeal stands dismissed. No order as to

the costs.

Sd./-

[ K. K. SONAWANE ] JUDGE rrd.