The State Of Maharashtra vs Bhimrama Sidhagonda Jawalgi And ...
2021 Latest Caselaw 129 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                         CRIMINAL APPEAL NO.148 OF 2008

 The State of Maharashtra                         ....Appellant/Complainant
                V/s.
 1. Bhimrama Sidhagonda Jawalgi
 Age - 35 years, Occu.: Agriculture,
 R/o. Jamapur Shirval, Taluka - Akkalkot
 2. Sidhagonda Bhimrama Jawalgi
 Age - 65 years, Occu.: Agriculture,
 R/o. Jamapur Shirval, Taluka - Akkalkot
 3. Shivanand Sidhagonda Jawalgi
 Age - 20 years, Occu.: Unemployed,
 R/o. Jamapur Shirval, Taluka - Akkalkot     .....Respondents/Accused
                                    ----
Ms. Anamika Malhotra, APP for State - Appellant.
Mr. Sameer Kumbhakoni for respondents.
                                    ----
                                         CORAM : K.R.SHRIRAM, J.

                                         DATE     : 5th JANUARY 2021
ORAL JUDGMENT :

1                  This is an appeal impugning an order and judgment dated

1st October 2005 passed by the Judicial Magistrate First Class, Akkalkot,

acquitting four accused of offences punishable under Sections 325

(Punishment for voluntarily causing grievous hurt), 323 (Punishment for

voluntarily causing hurt), 504 (Intentional insult with intent to provoke

breach of the peace) and 506 (Punishment for criminal intimidation) read

with Section 34 (Acts done by several persons in furtherance of common

intention) of Indian Penal Code (IPC).

2 Complainant (PW-2) was residing in South Solapur alongwith

her sister and children near Jeur village. According to prosecution, PW-2 and

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her relatives were having land admeasuring 4 H and 13 guntas and they

were cultivating the same. PW-2 had purchased land from one Sidhagonda

Bhimrama Jawalgi in the year 1988 and some time in March 2003, 15 years

later, the name of the purchaser was noted in the 7/12 extract. Therefore, on

28th May 2003 at about 9.00 a.m., PW-2 and her sister (PW-4) went to the

said land to worship the plough. At that time, the adjacent land holder, i.e.,

the accused, who are also related to complainant, objected to PW-2

worshiping the plough and started abusing them and beating them with

sticks. PW-2 and PW-4 sustained injury. The accused allegedly protested to

PW-2 and PW-4 doing the puja to the plough because according to accused

the land belonged to accused. When PW-2 tried to explain that she has

purchased the land but the accused denied that she could have purchased

the land and continued with the assault. Thereafter, the accused left the

place. There were no eye witnesses. PW-2 went and narrated the incident to

the Valsang police, who referred PW-2 and PW-4 for medical treatment to

Civil Hospital, Solapur. After treatment, they went back to Valsang police.

At that time, they were informed that the jurisdiction is of Akkalkot South

Police Station and therefore, they lodged the complaint in Akkalkot Police

Station on 6th June 2003. FIR was registered, investigation commenced, spot

panchnama etc. was prepared and after receiving the medical certificate etc.

chargesheet was filed and charges were framed. The accused pleaded not

guilty and claimed to be tried. The defence of the accused is of total denial

and false implication. After considering the evidence, the Trial Court was

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pleased to acquit the accused. I concur with the conclusions arrived at by the

Trial Court.

3 There are no eye witnesses. Therefore, the only evidence that

would be material is of PW-2 and PW-4. In the cross examination, PW-2

admits that her husband and accused no.1 are brothers and PW-2 was the

daughter of the sister of mother of accused no.1, which means PW-2,

complainant and accused no.1 were cousins. In the cross examination, PW-2

admits that in the complaint she has not mentioned about worshiping the

plough but only says was worshiping the field. In the complaint PW-2 is also

silent about accused no.2 and accused no.3 assaulting her. PW-4, the sister of

PW-2, in her cross examination admits that they are close relatives of the

accused and upto 2003 the name of the purchaser was not recorded for land

Gat No.27/1, which is the land on which the incident happened, though it

was purchased almost 16 years prior thereto. PW-4 also admits the dispute

between the accused and PW-2 and PW-4 about mutating their name on the

land records. PW-5, the Doctor, in his cross examination, states that he

examined PW-2 Kantabai at about 4.30 p.m. and thereafter, examined

another injured. But in the medical report, it is mentioned that both were

examined at the same time at 4.30 p.m. I wonder how that was possible to

examine two witnesses simultaneously. PW-4 in her evidence states that

accused abused in filthy language but in the statement before police there is

no mention specifically about filthy language being used by the accused.

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4               PW-6, the panch witness who turned hostile, states that police

did not prepare the spot panchnama in his presence and he has signed the

panchnama in the police station.

5 The incident occurred on 28th May 2003 but complaint is filed

on 7th June 2003. PW-2, in her evidence, states that she lodged the complaint

before Valsang police on 28th May 2003 and later she was told that the

jurisdiction was with Akkalkot South Police Station and hence, she filed

complained with Akkalkot South Police Station on 7 th June 2003. But the

complaint filed before Valsang Police Station is not proved. The defence has

taken a stand that though PW-2 and PW-4 state that their family members

purchased the said land 20 years ago, the possession has always been with

the accused and after passing of order by Tahsildar on 5 th March 2003, PW-2

and PW-4 illegally attempted to take possession to which the accused

objected. The order passed by the Tahsildar has been set aside by the Sub

Divisional Officer and a certified copy has also been produced. The 7/12

extract shows the name of accused no.1.

6 The fact that in the evidence of PW-2 and PW-4 and even in the

complaint, there is no mention of assault by accused nos. 2 and 3 but they

having dragged them in the entire case also shows that the complainant with

the aide of the State machinery, prosecution, just wanted to involve the

family and harass the accused. There are various other points also raised by

the Trial Court to justify the order of acquittal with which I concur.

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7                  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.

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";

1. (2008) 10 SCC 450

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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.

8 The Apex Court in many other judgments including Murlidhar &

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

2. (2014) 5 SCC 730

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The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 3

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.

9 I have perused the impugned judgment, considered the evidence

and also heard Ms. Malhotra, learned APP. I do not find anything palpably

wrong, manifestly erroneous or demonstrably unsustainable in the impugned

judgment. From the evidence available on record, there is nothing to

substantiate the charge leveled against accused.

10 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.

3. 1996 SCC (cri) 972

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            11                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.

            12                Appeal dismissed.



                                                                    (K.R. SHRIRAM, J.)
           Digitally signed
           by Gauri A.
           Gaekwad
Gauri A.   Date:
Gaekwad    2021.01.07
           16:44:15
           +0530




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