The State Of Maharashtra vs Dattatray Bajrang Choughule And ...
2021 Latest Caselaw 7393 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO.428 OF 2007
 The State of Maharashtra                          ) ....Appellant/Complainant
                V/s.
 1) Dattatray Bajrang Choughule                    )
 Age : 60 years, Occu. : Agri                      )
 R/o. Gardi, Tal. Pandharpur,                      )
 District - Solapur                                )
 2) Pradeep Dattatray Choughule                    )
 Age : 30 years, Occu. : Agri                      )
 R/o. Gardi, Tal. Pandharpur,                      )
 District - Solapur                                ) .....Respondents/accused
                                   ----
Mrs. Anamika Malhotra, APP for State - Appellant.
None for respondents.
                                   ----
                                    CORAM : K.R.SHRIRAM, J.

                                    DATE     : 7th MAY 2021
ORAL JUDGMENT :

1                  This is an appeal impugning an order and judgment dated

3rd September 2005 passed by the IV th Joint Judicial Magistrate, First Class,

Pandharpur, 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).

2 Learned APP in fairness submitted that there are inconsistencies

in the evidence of the eye witnesses.

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3                PW-4, who is supposed to have been assaulted by the accused,

has deposed that he sustained bleeding injuries and there were blood stains

on his clothes. PW-4 has also deposed that he did not go to the police station

with his clothes and the Investigating Officer (PW-8) also confirms that it

was necessary to have seized those clothes. This creates a doubt as to

whether PW-4 really sustained injuries as alleged.

4 PW-5, who is the wife of PW-4, states that she also sustained

injuries. PW-5 has deposed that her husband, i.e., PW-4, fell down then

accused no.2 Pradeep Choughule assaulted on the leg of PW-4 with a spade

and accused no.2 also assaulted PW-5 on her leg with a spade and one

Ajinath Pawar, Dattu Jadhav, Raghunath Pawar and Shahajan intervened.

But these things are not found in the statement of PW-5 to the police.

5 In the complaint, PW-4 has stated that he was present at his

vasti but in the cross examination, PW-4 states that he was not present at

the vasti. The Investigating Officer has not recorded the statements of other

eye witnesses. Police has not recorded the statement of PW-6 under Section

161 of Code of Criminal Procedure which also deprived the prosecution of

effectively cross examining PW-6. The evidence also indicates that there

were disputes between PW-4 and PW-6 on the one side and the accused.

PW-3 has deposed that he rushed to the spot after hearing the noise of

quarrel but the evidence indicates that the distance where PW-3 was from

the spot of incident was about five minutes walk away. The Trial Court,

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therefore, has doubted the version of PW-3 that he was present at the time

of incident. Even the medical certificates has various corrections which have

not been proved. Based on these factors and many other, the Trial Court

acquitted the accused.

6 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 :

1. (2008) 10 SCC 450

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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.

7 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.

2. (2014) 5 SCC 730

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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.

8 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 the accused.

9 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,

3. 1996 SCC (cri) 972

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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.

10 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.

11               Appeal dismissed.



                                                       (K.R. SHRIRAM, J.)




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