The State Of Maharashtra vs Jalindar Janardan Vir And Ors
2021 Latest Caselaw 3655 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.9 OF 2005
 The State of Maharashtra                      ) ....Appellant/Complainant
                V/s.
 1) Jalindar Janardan Vir                      )
 Age : 42 yrs., Occu.: Agri                    )
 R/o. Shelgaon-Kadawale,                       )
 Tal.: Karmala, Dist.: Solapur                 )
 2) Rajaram Janardan Vir                       )
 Age : 35 yrs., Occu.: Agri                    )
 R/o. Shelgaon-Kadawale,                       )
 Tal.: Karmala, Dist.: Solapur                 )
 3) Atmaram Janardan Vir                       )
 Age : 27 yrs., Occu.: Agri                    )
 R/o. Shelgaon-Kadawale,                       )
 Tal.: Karmala, Dist.: Solapur                 ) .....Respondents/accused
                                   ----
Mrs. Anamika Malhotra, APP for State - Appellant.
Mr. Ujwal R. Agandsurve for respondents.
                                   ----
                                    CORAM : K.R.SHRIRAM, J.

                                    DATE     : 26th FEBRUARY 2021
ORAL JUDGMENT :

1                  This is an appeal impugning an order and judgment dated

16th September 2004 passed by the Judicial Magistrate, First Class, Karmala,

acquitting respondents (accused) of offences punishable under Section 323

(Punishment for voluntarily causing hurt), Section 325 (Punishment for

voluntarily causing grievous hurt), Section 504 (Intentional insult with

intent to provoke breach of the peace) read with Section 34 (Acts done by

several persons in furtherance of common intention ) of the Indian Penal

Code (IPC).

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2               It is prosecution's case that on 1 st March 2001 at about

4.00 p.m. when complainant (PW-4) and his father (PW-6) were collecting

fodder in their filed, an ox owned by accused no.1, entered the field and

started eating their crop of onion. PW-6 informed accused no.1 that the ox

was destroying his crop at which time accused no.1 assaulted PW-6 with a

whip which resulted in PW-6 falling down. At that time, accused no.2 came

there and hit PW-6 on his back with the blunt side of spade. Accused no.3

also assaulted PW-6 with a stone thrown at his back. PW-4, therefore,

rushed to the spot to rescue his father (PW-6). It is prosecution's case that

the three accused also abused PW-4, punched him and also kicked him. In

this melee, PW-6 sustained injury to his left hand thumb. Complainant

(PW-4) and PW-6 went to Karmala Police Station and lodged a complaint,

which was registered as non cognizable offence. The injured were referred

for medical treatment. PW-6 went to Cottage Hospital at Karmala and from

there he was referred to Civil Hospital, Solapur where his supplementary

statement came to be recorded. Based on that statement, the offence was

converted into a cognizable offence by Police Station at Karmala.

3 Investigation commenced, chargesheet came to be filed and

charges were framed. Based on the evidence presented, the Trial Court

acquitted the accused of offences charged by an order and judgment dated

16th September 2004 which is impugned in this appeal. The incident is over

20 years old. The accused have pleaded not guilty and claimed to be tried.

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The stand of the accused is that it is a political fight between the two

families, who are neighbours. The wife of accused no.1 was elected in the

Gram Panchayat election and in that election, it was relative of PW-6 who

got defeated and hence, the two families are on inimical terms.

4 To drive home the charge, prosecution led evidence of eight

witnesses, viz., Abhiman Sukhdev Jagtap, eye witness as PW-1; Mahadev

Sukhadev Jagtap, eye witness as PW-2; Sunil Zumber Payaghan, panch

witness as PW-3; Sarjerao Bajirao Mane, complainant as PW-4; Rambhau

Nagnath Gholap, panch witness as PW-5; Bajirao Nivritti Mane, father of

complainant as PW-6; Arvind Lokhande as PW-7, Investigating Officer; and

Dr. Dodmani, Medical Officer as PW-8.

5 PW-5, the panch witness for recovery of whip and spade turned

hostile. No corroborative evidence has been led to prove the recovery of

these weapons. I have, with the assistance of the learned APP

Mrs. Malhotra, considered the evidence and the impugned judgment. The

prime witnesses are PW-4 and PW-6. PW-6 is the father of PW-4 as noted

earlier. PW-6 only talks about the role of accused nos.1 and 2 in the assault

and does not attribute any role of accused no.3. PW-6 also does not mention

about any assault by spade and according to PW-6, accused no.1 hit him

with a whip and accused no.2 hit him with a stone. PW-4, complainant

states that all the three accused assaulted PW-6. PW-4 says accused no.1 hit

PW-6 with a whip on his hand and back, accused no.2 hit with the blunt side

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of the spade and accused no.3 with stone. PW-4 states that he was also

assaulted but there is no medical certificate produced to that effect and

PW-4 does not say in his testimony that he was given any medical treatment.

PW-4 says that Police referred the injured alongwith yadi to hospital

whereas, the Doctor PW-8 does not say so.

6 PW-2, who is an eye witness, does not mention about any

assault on PW-4 but says all the accused assaulted PW-6 with a whip and

spade. PW-2 in his cross examination admits that his statement recorded by

Police does not mention that accused no.1 assaulted PW-6 with a whip.

PW-4 and PW-6 state that the incident occurred due to the ox of accused

no.1 entering their field and damaging their crop but PW-2 states that the

incident occurred on disputes over the bund. PW-7 has confirmed the

omissions. Therefore, the evidence of PW-4 and PW-6 does not tally. PW-4

has lodged the complaint (Exhibit 24) but that does not disclose anywhere

that PW-1 and PW-2 came to the spot and rescued them. Even their names

do not appear in the F.I.R. PW-6, in his evidence, states that PW-1 and PW-2

arrived and rescued them but this has not been stated in the statement of

PW-6 recorded by Police. PW-6 specifically states that he sustained injuries

on his left hand thumb but PW-4 does not state that. PW-4 states that when

he was assaulted by accused nos.1 and 3, he cried and shouted for help and

hearing him PW-1 and PW-2 came to their rescue. But PW-6 does not

mention that PW-4 shouted and cried for help. PW-6, in his cross

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examination, states that his statement was recorded on the date of incident,

i.e., 1st March 2001 but the statement recorded by the Police shows the date

as 4th March 2001. Even the Investigating Officer (PW-7) states that he has

not recorded the statement of PW-6 on the date of incident. Investigating

Officer (PW-7) also states that PW-6 never stated before him that PW-1 and

PW-2 had rescued him or that PW-6 was taken to village Gulaali in a

bullock-cart and was brought to Karmala in an auto rickshaw.

7 Therefore, from the evidence of PW-4 and PW-6, I find that they

have made material improvements in their case and actually exaggerated

the event. There are many other contradictions and points raised in the

impugned judgment, which for the sake of brevity I am not reproducing.

Suffice to say, I agree with the conclusions arrived at by the Trial Court.

8 The Apex Court in Ghurey Lal V/s. State of U.P. 1 has culled out

the factors to be kept in mind by the Appellate Court while hearing an

appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment read

as under :

72. The following principles emerge from the cases above :

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

1. (2008) 10 SCC 450

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3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when :

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

9 The Apex Court in many other judgments including Murlidhar

& Ors. V/s. State of Karnataka2 has held that unless, the conclusions

2. (2014) 5 SCC 730

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reached by the trial court are found to be palpably wrong or based on

erroneous view of the law or if such conclusions are allowed to stand, they

are likely to result in grave injustice, Appellate Court should not interfere

with the conclusions of the Trial Court. Apex Court also held that merely

because the appellate court on re-appreciation and re-evaluation of the

evidence is inclined to take a different view, interference with the judgment

of acquittal is not justified if the view taken by the trial court is

a possible view.

We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of

Gujarat3 has held that if the Appellate Court holds, for reasons to be

recorded that the order of acquittal cannot at all be sustained because

Appellate Court finds the order to be palpably wrong, manifestly erroneous

or demonstrably unsustainable, Appellate Court can reappraise the evidence

to arrive at its own conclusions. In other words, if Appellate Court finds that

there was nothing wrong or manifestly erroneous with the order of the Trial

Court, the Appeal Court need not even re-appraise the evidence and arrive

at its own conclusions.

10 I do not find anything palpably wrong, manifestly erroneous or

demonstrably unsustainable in the impugned judgment. From the evidence

3. 1996 SCC (cri) 972

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available on record, there is nothing to substantiate the charge leveled

against the accused.

11 There is an acquittal and therefore, there is double presumption

in favour of the accused. Firstly, the presumption of innocence available to

the accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by

a competent court of law. Secondly, the accused having secured acquittal,

the presumption of their innocence is further reinforced, reaffirmed and

strengthened by the Trial Court. For acquitting the accused, the Trial Court

observed that the prosecution had failed to prove its case.

12 In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

acquittal, in my view, cannot be interfered with. I cannot find any fault with

the judgment of the Trial Court.

                  13              Appeal dismissed.


           Digitally
           signed by

Gauri A.
           Gauri A.
           Gaekwad                                                      (K.R. SHRIRAM, J.)
Gaekwad    Date:
           2021.03.03
           11:11:57
           +0530




                  Gauri Gaekwad