Bombay High Court

The State Of Maharashtra vs Rajaram Maruti Gaikwad (Abated ... on 23 June, 2021

Bench: K.R. Sriram

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                           CRIMINAL APPEAL NO. 1249 OF 2007

The State of Maharashtra                               ....Appellant
                                                       (Orig. Complainant)
                  V/s.

1. Rajaram Maruti Gaikwad
Age : 52 years,

2. Namdeo Rajaram Gaikwad
Age : 26 years
Both R/o. Kadlas, Tal. Sangola                         ....Respondents
                                                       (Orig. Accused)
                                  ----
Ms. M.M. Deshmukh, Addl. PP for State.
None for Respondent.
                                  ----
                                         CORAM : K.R.SHRIRAM, J.

DATED : 23rd JUNE, 2021.

ORAL JUDGMENT :

1. This is an appeal impugning an order and judgment dated 26 th

December, 2005 passed by the Judicial Magistrate First Class, Sangola, At

Sangola, District Solapur acquitting the respondents (hereinafter referred as

accused) of offence punishable under Section 324 (Voluntarily causing hurt by

dangerous weapons or means), 504 (Intentional insult with intent to provoke breach of

the peace) r/w 34 of the Indian Penal Code.

2. Accused No.1 has died since filing of appeal and appeal stands

abated against Accused No.1. Accused No.2 is son of Accused No.1.

3. It is the case of prosecution that on 06/10/2002 at about 8.45

p.m., P.W. 1 Balasaheb Bhanudas Gaikwad was proceeding on motorcycle

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near the house of accused who are also related to complainant. Near the

house of accused he saw in the light of motorcycle that Accused No.1 was

sitting on the road side. P.W. 1 stopped his motorcycle and asked Accused

No.1 why he was sitting in the dark to which Accused No.1 replied that he

was waiting for him. Accused No.1 then went near P.W. 1 and started

abusing him in filthy language. At that time, one Sukhdeo Dnyanu Lendave

(who has not been examined though listed as Witness No.5) appeared and

pacified both of them and went away. Thereafter, brother of P.W. 1 (P.W. 2)

and son Dilip (P.W. 5) came to the spot. P.W. 5 took the motorcycle and went

home and P.W. 1 and P.W. 2 started walking towards their house. At that

time, Accused No.1 and 2 came with iron rods and Accused No.1 assaulted

P.W. 1 on his forehead resulted in bleeding injury. Accused No.2 assaulted

P.W. 2 on the head, lips and on knee. Thereafter, wife of P.W. 1 Padmini and

son came there running and intervened in the dispute. Then they went to

the police station and police referred them to Rural Hospital on

07/10/2002. On 08/10/2002 P.W. 1 lodged report against accused and

based on that offence came to be registered.

4. Investigation commenced and P.W. 7 was the Investigating

Officer. Spot panchanama and Seizure panchanama was prepared, accused

arrested and witnesses statement were recorded.

5. Charges were framed against accused. Accused pleaded not

guilty and claimed to be tried. Their defence is of total denial and in the

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statement under Section 313 of The Code Of Criminal Procedure, 1973, it is

the case of the defence that P.W. 1 and P.W. 2 were coming on motorcycle

after consuming liquor and both fell from the motorcycle and sustained

injuries.

6. To bring home the charge, prosecution has examined seven

witness viz., Balasaheb Bhanudas Gaikwad, Complainant as P.W. 1, Baban

Bhanudas Gaikwad, Brother of complainant as P.W. 2, Mahadeo Sopan

Gaikwad, Spot Panch as P.W. 3, Mahadeo Ramchandra Pawar, Seizure Panch

as P.W. 4, Dilip Balaso Gaikwad, Son of complainant as P.W. 5, Shobha Jivan

Waidande, Medical Officer attached to Cottage Hospital, Pandharpur as P.W.

6 and Balasaheb Krishnath Shinde, Investigating Officer as P.W. 7.

7. I have considered the evidence with the assistance of Addl. PP.

No where in the evidence, the cause for accused to assault P.W. 1 and P.W. 2

has been mentioned. P.W. 1 complainant has admitted in his cross-

examination that there has been dispute between him and accused on

account of family issues and village politics. It is well settled principle of

law that disputes or enmity can be used as double edged weapon and

keeping that in mind, evidence needs to be scanned and scrutinized

minutely so as to check the veracity of the complaint and theory of false

implication.




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8. P.W. 5 in his cross-examination admits that P.W. 1 was in the

habit of consuming liquor and it is true that at the time of incident P.W. 1,

i.e., his father was proceeding towards the house on motorcycle after

consuming liquor. P.W. 5 also says that it is true to say that P.W. 1 used to

drive motorcycle after consuming liquor.

9. Prosecution says that it was Sukhdeo Dnyanu Lendave who

come to the spot and sorted out problem between accused and P.W. 1.

Whereas, P.W. 1 in his cross-examination states that it is not true that

Sukhdeo Dnyanu Lendave came to the spot at the time of alleged incident.

He says "Sukhdeo Dnyanu Lendave had no talk with us". However, in the

complaint Exh. 13, P.W. 1 says Sukhdeo Dnyanu Lendave had come at that

spot.

10. P.W. 2 says that Sukhdeo Dnyanu Lendave informed him that

dispute between P.W. 1 and Accused No.1 was going on, on the road.

Therefore, P.W. 2, P.W. 5 Dilip and wife of P.W. 1 went to the spot. P.W. 1 does

not mention anything about his wife appearing at the spot and wife of P.W. 1

also has not been examined. P.W. 2 admits that thereafter P.W. 5 took

motorcycle towards the house whereas he and P.W. 1 walked towards the

house. I ask myself if P.W. 1 was riding motorcycle why did he have to walk

with P.W. 2 and P.W. 5 took the motorcycle home. The only possible reason

would be that they were too drunk to ride the motorcycle and P.W. 5, hence

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took it home. I am saying this because P.W. 5 in his cross-examination has

admitted that P.W. 1 was proceeding towards the house on motorcycle after

consuming liquor. P.W. 2 says that police did not even inquire regarding

incident with him. P.W. 2 says that when he reached the spot after Sukhdeo

Dnyanu Lendave told him about altercation between P.W. 1 and Accused

No.1, he found the motorcycle was parked on the west side of the highway

and P.W. 1 was lying near the motorcycle. It is not the prosecution's case

that at that time P.W. 1 had been assaulted. It is prosecution's case that

when P.W. 1 and P.W. 2 were walking towards home, accused came from

behind and assaulted them with iron rod. P.W. 5 says that he with his

mother and uncle proceeded to the spot and they saw quarrel was going on

between accused and P.W. 1. P.W. 2 does not say that when he reached the

spot, he saw accused and P.W. 1 were quarreling. P.W. 1 as stated earlier is

silent about his wife reaching the spot. P.W. 5 says that he took the

motorcycle and went away whereas his mother, father and uncle were

walking towards the home and at that time Accused No.1 gave blow with

iron rod on P.W. 1 and Accused No.2 gave blow with iron rod on head, chin

and knee of P.W. 2. If P.W. 5 had already left the place and proceeded

towards his house, how could he have even seen the incidence because it is

not the prosecution's case that he was going on motorcycle along side these

people who were walking at which stage the incident happens. P.W. 5

admits that he has not informed the police that he resolved the dispute

between Accused No.1 and P.W. 1 which is an omission. He also admits that

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he has not mentioned in his statement to the police that they thereafter

proceeded to Rural Hospital for medical treatment. In fact, in his cross-

examination, P.W. 5 says "it is not true to say that I personally saw quarrel

between accused and my father and it is not true to say that Accused No.1

gave 10 to 15 blows with iron rod on P.W. 1." Strangely P.W. 5 says that P.W.

1 and 2 were unconscious on the spot and P.W. 1 and P.W. 2 regained

consciousness in the hospital. None of the other witnesses have said this.

Even doctor P.W. 6 does not state that P.W. 1 and P.W. 2 were brought in an

unconscious state. P.W. 5 says that P.W. 1 was admitted in hospital for one

day and P.W. 2 was admitted for two to three days in the hospital. Again

none of the other witnesses mention about this including P.W. 6.

11. P.W. 6 doctor also submits that one of the injuries sustained by

P.W. 2 could be due to falling from motorcycle. The medical report states

that nature of injuries is simple with hard and sharp object whereas in her

cross-examination P.W. 6 states that articles shown to her are not sharp. The

last nail in the coffin of the prosecution's case is that the seizure panch

witness P.W. 4 though he identifies two iron rods, in his cross-examination

admits that he was in hurry and police told him to sign and therefore he

signed on panchanama. P.W. 4 further states that it is true to say that police

had prepared panchanama and he only signed on panchanama.

12. In the circumstances, conclusion arrived at by the Trial Court

cannot be faulted and no interference is called for.

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13. The Apex Court in Ghurey Lal Vs. 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

1 (2008) 10 SCC 450

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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.

14. The Apex Court in many other judgments including Murlidhar

& Ors. Vs. 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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15.               The Apex Court in Ramesh Babulal Doshi Vs. 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.

16. I have perused the impugned judgment, considered the

evidence and also heard Ms. Deshmukh, learned APP. I do not find

anything palpably wrong, manifestly erroneous or demonstrably

unsustainable in the impugned judgment. From the evidence available on