The State Of Maharashtra vs Vimal Dattajirao Jadhav And Ors
2021 Latest Caselaw 1533 Bom

                                         1/8                     2.Apeal-422-2008.doc




                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL APPEAL NO.422 OF 2008

 The State of Maharashtra                          ....Appellant/Complainant
                V/s.
 1. Sou. Vimal Dattajirao Jadhav
 Age : 61 years, Occ.: Household work
 R/o. Umbraj, Taluka - Karad, District -
 Satara
 2. Jayawant Dattajirao Jadhav
 Age : 30 years, Occ.: Service
 R/o. Umbraj, Taluka - Karad, District -
 Satara
 3. Madhav Dattajirao Jadhav
 Age : 35 years, Occ.: Service
 R/o. Umbraj, Taluka - Karad, District -
 Satara                                      .....Respondents/Accused
                                     ----
Mrs. Anamika Malhotra, APP for State - Appellant.
Mr. Milind Deshmukh for respondents.
                                     ----
                                          CORAM : K.R.SHRIRAM, J.

                                          DATE    : 22nd JANUARY 2021
ORAL JUDGMENT :

1                  This is an appeal impugning an order and judgment dated

13th September 2006 passed by the Additional Sessions Judge, Karad, Satara,

by which the Sessions Court reversed the order of conviction passed by the

Judicial Magistrate First Class, Karad and acquitted the accused of offences

punishable under Section 324 (Voluntarily causing hurt by dangerous

weapons or means) read with Section 34 (Acts done by several persons in

furtherance of common intention) of Indian Penal Code (IPC).

2 This is a case where two brothers, who were neighbours, were

fighting with each other over ancestral property and partition of land and

Gauri Gaekwad 2/8 2.Apeal-422-2008.doc

house properties. Accused no.1 was married to the brother of complainant

(PW-1). Accused nos.2 and 3 are the sons of accused no.1 and their father

Dattajirao was the brother of PW-1 Pandurang. Accused had filed a suit in

which accused had obtained injunction order against complainant by which

complainant was restrained from obstructing the construction of a latrine/

toilet and bathroom by the accused in the house. On 26 th October 1992,

accused no.2 and accused no.3 started digging the ground for laying a

foundation for construction of a latrine and bathroom at which stage,

complainant and his mother, who is the mother-in-law of accused no.1 and

grand mother of accused no.2 and accused no.3, had raised obstruction for

the construction. That resulted in a scuffle. It is alleged that accused pushed

the mother and she suffered injuries. The defence is of denial and that in any

event, accused have acted for their protection of their person and property

and in self defence. According to defence, it comes under the exception of

private defence under Section 96 of the Indian Penal Code.

3 Admittedly there is a dispute between the accused and

complainant. Admittedly an injunction order has been obtained by the

accused against complainant restraining complainant from obstructing the

construction of a latrine/toilet.

4 As per the evidence of PW-1, accused had assaulted the mother

of PW-1 an old lady by pushing the old lady and the old lady fell in a ditch

and the accused had also assaulted her. However, the medical certificate of

the old lady has not been produced on record. Moreover, PW-1 has not stated

Gauri Gaekwad 3/8 2.Apeal-422-2008.doc

what were the injuries that the old lady suffered. Therefore, it raises a doubt

whether the accused had really pushed the old lady in the ditch. Moreover,

the old lady was 90 years old at the time of the incident. It was also

suggested in the cross examination that she was bedridden and she was not

in a position even to move. I have my own doubts whether the old lady was

present at the spot because PW-3, the wife of complainant (PW-1), has

admitted that they had not taken the old lady to the police station. If the

accused had infact assaulted the old lady, I would assume that complainant

would have taken the old lady to the police station and then to the Doctor

for treatment. From this circumstance, it does look like that the prosecution

to make the incident grievous included the old lady Housabai in the FIR.

5 PW-1 has stated that police has not recorded his FIR but he was

only referred to hospital and he was in the hospital for 8 days. The medical

reports, however, do not show that PW-1 was admitted in the hospital for

8 days. Complainant had also lodged a private complaint. But there are

contradictions in the contents of the private complaint and according to

PW-1 because the police did not lodge the FIR, he made a representation to

the Superintendent of Police, Satara, after which the FIR was recorded on

23rd June 1993, i.e., almost 8 months after the incident. The Trial Court has

recorded that there are contradictions in the private complaint, application

made to the Superintendent of Police, Satara and the FIR recorded. In the

deposition, PW-1 states that accused had uttered the words as mentioned in

his evidence but the FIR dated 23rd June 1993 does not disclose that accused

Gauri Gaekwad 4/8 2.Apeal-422-2008.doc

no.1 had uttered those words that they would kill the old lady.

6 To explain the delay, PW-1 states that the police told him that he

should submit medical certificate before them and then they will take

cognizance of his allegations. The medical certificate is dated 30 th October

1992 but still PW-1 has approached the police only on 23 rd June 1993. The

medical certificate also shows the injured were treated as outdoor patients. It

does appear that accused had lodged the complaint against complainant

which has been registered as NC and the complaint of complainant also was

recorded as NC. Therefore, it does appear that to give more teeth to his

complaint, complainant, almost one month after the incident, sent the

representation to the Superintendent of Police, Satara on 14 th November

1992 and then filed a private complaint on 24 th April 1993 and then the FIR

on 23rd June 1993. Therefore, there is a serious delay in lodging the FIR and

I concur with the view of the Sessions Court that the same is damaging to the

prosecution's case.

7 Even PW-2, who claims to be an eye witness, has not been

mentioned in the FIR. On the contrary, the FIR mentions name of someone

else as present at the spot of incidence. PW-2 also admits in the cross

examination that there is a civil dispute between him and the accused which

was pending. PW-3 is the wife of complainant (PW-1) and PW-4 and PW-5

are the sons of PW-1 and PW-3. They are also interested witnesses. What is

more surprising is PW-4 and PW-5 were aged 25 years and 30 years and it is

unbelievable that when they were present at the time of the incident,

Gauri Gaekwad 5/8 2.Apeal-422-2008.doc

accused no.2 and accused no.3 would have assaulted PW-1 and PW-4 and

PW-5 would be mere spectators. There are many such points raised which

raises a doubt on the testimony given by the witnesses.

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.

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;

1. (2008) 10 SCC 450

Gauri Gaekwad 6/8 2.Apeal-422-2008.doc

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 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

2. (2014) 5 SCC 730

Gauri Gaekwad 7/8 2.Apeal-422-2008.doc

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

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.

10 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.

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

3. 1996 SCC (cri) 972

Gauri Gaekwad 8/8 2.Apeal-422-2008.doc

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.
           Gaekwad
                                                                    (K.R. SHRIRAM, J.)
Gauri A.   Date:
Gaekwad    2021.01.22
           18:21:25
           +0530




              Gauri Gaekwad