The State Of Maharashtra vs Pandurang Dhondiba Sule And Ors
2021 Latest Caselaw 4094 Bom

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         Digitally
         signed by
Meera    Meera M.
         Jadhav
M.       Date:
Jadhav   2021.03.08
         18:00:33
         +0530                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION
                                            CRIMINAL APPEAL NO.47 OF 2007


              The State of Maharashtra                  )
              (through Mangalwedha Police               )
              Station                                   )         ..Appellant

                           V/s.

              1 Pandurang Dhondiba Sule                 )
              Age 58 yrs.                               )

              2 Shivaji Vithoba Keshave                 )
              Age 65 yrs.                               )

              3 Sambhaji Pandurang Sule                 )
              Age 25 yrs.                               )

              4 Amogsidha Shivaji Keshave               )
              Age 25 yrs.                               )

              5 Nilabai Pandurang Sule                  )
              Age 49 yrs.                               )

              6 Rakhamabai Shivaji Keshave              )
              Age 29 yrs.                               )

              7 Chalaknanda Shivaji Keshave             )
              Age 48 yrs.                               )         ..Respondents


              Mrs. Anamika Malhotra, APP for State
              Mr. Chaitnya Mulawkar i/b Mr. Sandeep Salunkhe for Respondents


                                                   CORAM : K.R.SHRIRAM, J.

DATED : 5th MARCH 2021

ORAL JUDGMENT.:-

1 This is an appeal impugning an order and judgment dated 9 th

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December 2005 passed by the First Ad-hoc Additional Sessions Judge,

Pandharpur, acquitting the accused of charges under Section 147

(Punishment of rioting), 148 (Rioting, armed with deadly weapon) and 324

(Vounltarily causing hurt by dangerous weapons or means ) read with

Section 149 (Every member of unlawful assembly guilty of offence

committed in prosecution of common object) of the Indian Penal Code.

2 Originally, the accused were charged with offences under Sections

147, 148, 324, 504 , 506 read with 149 of IPC read with Section 135 of

Bombay Police Act. Trial Court, i.e., Court of JMFC, Mangalwedha acquitted

the accused of the charges under Section 504 and 506 read with Section

149 of IPC and Section 135 of Bombay Police Act, but convicted the accused

under Section 147, 148 read with section 149 of IPC, pursuant to a

judgment decided on 8th September 2003. Against this order and judgment

of JMFC, an appeal had been preferred by the accused and the Sessions

court reversed the order of JMFC and acquitted all the accused. That order

of acquittal is impugned in this appeal.

3 I have perused the evidence as well as the impugned judgment and I

would agree with the judgment passed by the Sessions Court acquitting the

accused.

4 It is prosecution's case that P.W.-1 and P.W-3, who were married to

each other and living as husband and wife, were residents of Nandur. P.W.5

was the son of P.W.-1 and P.W-3. P.W.10 was the sister of P.W.-3 and was

living very close to the residence of P.W.-1 and P.W-3.

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5 On 30th May 2000, at about 7.00 a.m., P.W.-3 and P.W-5 went to their

plot of land on a bullock cart with fertilizers. After the fertilizers were

dumped and on the way back the incident took place. When P.W.-3 and P.W.-

5 had gone to dump the fertilizers, P.W.-1 and P.W.-10 were at their house.

P.W.-1 and P.W-10 heard some commotion and, therefore, stepped out of the

house and found that P.W.-3 and P.W-5 were being assaulted by the accused

in front of the house of the accused and accused no.3 assaulting P.W.-3 and

P.W.-5 saying "Amche Shetatun To Khatachi Bailgadi Bharoon Kaa Gelas?".

The other accused were also around and they were abusing P.W.-3 and P.W.-5

and assaulting with a spade, axe and pickaxe. P.W.-1 and P.W-10, who went

to save P.W.-3 and P.W-5 also got assaulted in the melee. At that time, P.W.-4

and one Pandurang Yenpe (who has not been examined) arrived at the spot

and separated P.W.-1, P.W-3 and P.W.-5 from the accused. One Rajkumar D.

Waghmode, who has not been examined, came on the spot and he also

sustained injuries. Thereafter, P.W.-1, P.W-3. P.W.-5 and P.W.-10 went to

village Nandur, they were brought at Mangalwedha Police Station and

police referred them to the hospital for treatment. From that place they

went to Solapur Hospital for further treatment.

6 On 31st May 2000, P.W-1 lodged the complaint against the accused

that the accused assaulted P.W.-1, P.W-3, P.W.-5 and P.W.-10 with spade, axe

and pickaxe and also rained punches and kicks on them. A report was

registered and spot panchnama was prepared, weapons were seized, the

accused were arrested and charge sheet came to be filed. Charges were also

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framed. The accused pleaded not guilty and claimed to be tried. The

defence of the accused is of total denial and that due to the previous dispute

and pending litigation between two families, complainant has filed false

complaint against them.

7 What we have to note is P.W.-1, P.W-3, P.W.-5 and P.W.-10 are

interested witnesses and also material witnesses. P.W-4 is an eye witness.

P.W.-2 and P.W.-9 are panch witnesses for seizure of weapons and both have

turned hostile. P.W-7 and P.W-8 are police witnesses and P.W.-6 is a medical

officer.

8 P.W.-1, P.W-3, P.W.-5 and P.W.-10 have maintained that they were

assaulted by the accused, which caused them injuries and also have

mentioned about the means used for the assault. P.W.-4 has supported the

case of P.W.-1, P.W-3, P.W.-5 and P.W.-10. It is also come on record that the

accused and P.W.-3 own adjacent properties and there has been long drawn

dispute going on between the two and there are litigation pending in court

between the two. In view of this background, the evidence of P.W.-1, P.W-3,

P.W.-5 and P.W.-10 have to be very carefully scrutinized.

9 One of the inconsistencies, I find, is the spot of the incident. The FIR

Exhibit 37 does not disclose that the incident happened in the property of

P.W.-3. P.W.-1 says that when P.W.-3 and P.W-5 were returning after dumping

the fertilizers the incident took place in front of the farm house of accused

no.2. P.W.-1 further says the incident took place in the landed property of

P.W.-3. P.W.-3 himself does not say that it happened in his land as deposed

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by P.W.-1. P.W.-5 says that when he and his father (P.W-3) had gone to their

land with the bullock cart loaded with fertilizers and on their way back

accused no.3 Sambhaji came across the cart. But does not state that the

incident happened in the land of P.W.-3. P.W.-10 says when she alongwith

P.W.-1 came to the field and saw all the accused were beating P.W.-3. But

does not say that the incident took place in front of the farm house of

accused no.2 and in the land of P.W.-3. But the evidence concluded that

there is a Government road on the Northern side of the land and there is no

cart road through the lands of the accused. The evidence also shows the

farm house of accused no.2 was at distance of 500 ft. from the road.

Therefore, it is difficult to accept that the incident happened in front of the

farm house of accused no.2 or that P.W.-3 or P.W.-5 had any occasion to pass

in front of the house of accused no.3.

10 On the point of incident of assault, according to P.W.-1, at the relevant

time, the accused were abusing P.W.-3 and, therefore, she rushed there. P.W-

10 also says that after hearing noise, she reached the spot alongwith P.W-1

but P.W.-5 does not corroborate this version of P.W-1 and P.W.-10. P.W.-5 says

that from the spot of incident he rushed to the house and informed P.W.-1

and P.W.10 about the incident and thereafter, reached on the spot

alongwith P.W.1 and P.W-10.

P.W.-4 has not deposed about the presence of P.W.-1 and P.W-10 or they

being assaulted. Therefore, there is no uniformity in the evidence of P.W.-1,

P.W-3, P.W.-5 and P.W.-10 on the point of incident of assault and also the

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weapons used by the specific accused.

11 As regards seizure of the weapons, i.e., spade, axe and pickaxe, both

panch witnesses P.W.-2 and P.W.-9 have turned hostile and they denied the

seizure of weapons from accused no.1. When both panch witnesses have

turned hostile and in view of the inconsistencies on the point of assault as

noted above, I cannot gather myself to accept the version of I.O. - P.W.-7.

Strangely, I.O. P.W.7 says accused no.1 was not arrested when the weapons

were seized from him.

12 Even in the medical evidence for the injuries sustained by P.W.-1, P.W.-

3 and P.W.-10, P.W.-6 the Medical officer of Solapur Hospital specifically

states that these three were not referred to him by the police. P.W.-6 also

says he has not given any treatment to P.W.-1, P.W.-3 and P.W.-10 and they

had already taken treatment previously before he even examined them.

Prosecution has also not produced any documentary evidence in respect of

examination of P.W.-1, P.W.-3 and P.W.-10 and the treatment given to them

before they were examined by P.W.-6. These create a doubt about the

injuries as noticed on P.W.-1, P.W.-3 and P.W.-10.

13 As against this, the accused have come with a specific case of previous

enmity and that there are disputes between the two families over the land

and litigation are pending. Prosecution has to prove beyond reasonable

doubt whereas the stand of defence can be considered on preponderance of

probabilities.

The fact that the seizure of weapons itself has not been proved, the

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charges under Sections 148 and 324 also has to fail in view of the

inconsistency in the testimony of P.W.-1, P.W.-3, P.W.-5 and P.W.-10. As noted

earlier, even the charge under Section 147 cannot be stated to have been

proved.

14 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

1(2008) 10 SCC 450

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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.

15 There is an acquittal and therefore, there is double presumption in

favour of 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, accused having secured acquittal, the

presumption of their innocence is further reinforced, reaffirmed and

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

observed that the prosecution had failed to prove its case.

16 Moreover, the incident happened almost 21 years ago and the

sentence, which was awarded by the Trial Court was also only 6 months.

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After perusing the order, I must keep in mind the larg consideration of the

jurisdiction like, the incident being over 21 years ago and the sentence

which could be awarded, even if convicted, I am of the view in addition to

the reasons expressed earlier, no case for interference is made out with the

impugned order.

17       Appeal dismissed.



                                                 (K.R. SHRIRAM, J.)




     Meera Jadhav