Bombay High Court
The State Of Maharashtra vs Ashok Damu Suryawanshi And Ors on 4 January, 2022
Bench: Prakash Deu Naik
rpa 1/15 236 apeal 1210 2007.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1210 OF 2007
State of Maharashtra .. Appellant
Versus
1) Ashok Damu Suryawanshi;
2) Balu alias Raghunath Damu; and
3) Sumanbai Ashok Suryawanshi .. Respondents
......
Mr.S.H. Yadav, APP for the Appellant-State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JANUARY 4, 2022.
JUDGMENT :
The State of Maharashtra has preferred this Appeal
under Section 378(3) of Code of Criminal procedure, challenging
the judgment and order dated 9th September, 2004, passed by
Judicial Magistrate First Class, Satana, in R.C.C.No.140 of 2000.
2 The prosecution case is as under:
Digitally signed
by RAJESHRI
RAJESHRI PRAKASH
AHER On 8th July, 2000, at about 06:00 a.m., the accused
PRAKASH Date:
AHER 2022.01.11
17:13:25
+0530
no.1 had questioned the complainant for lodging complaint at the
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police station. Accused nos.2 and 3 caught hold of complainant,
whereas, accused no.1 assaulted her with stick on her hand
causing fracture to hand. The complainant visited Jaikheda police
station and lodged the complaint. Crime was registered vide
C.R.No.92 of 2000. Investigation was completed and charge-
sheet was fled.
3 Charge was framed against the accused vide order
dated 16th April, 2001, under Sections 325 read with 34, 323 read
with 34 and 504 read with 34 of Indian Penal Code ("IPC", for
short).
4 The prosecution has examined 9 witnesses. P.W.1
Vilas Tukaram Choudhary is the panch witness for spot
panchanama. P.W.2 Sadashiv Pandurang Sonawane is eye witness.
P.W.3 Kamalabai Suryawanshi is the complainant, P.W.4 Bansilal
Battase is the eye witness to the incident. P.W.5 Bhika Mahadu
Lokhande is brother of injured. P.W.6 Kailas Pandurang Ahire is
the eye witness, P.W.7 Dr.Satish Dayaram Suryawanshi is the
medical oficer who examined injured P.W.3, P.W.8 Mothabhau
Pundlik Hyalij is the PSO on duty at the police station, P.W.9 Datta
Tiwari, is the eye witness.
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5 After recording evidence of witnesses, the statement
of accused was recorded under Section 313 of Cr.P.C. The trial
Court by judgment and order dated 9th September, 2004,
acquitted all the accused for the ofences punishable under
Sections 325, 323 and 504 read with 34 of IPC.
6 The impugned judgment of acquittal is under
challenge in this Appeal by the State of Maharashtra.
7 Learned APP submitted that the judgment of trial
Court is contrary to the evidence on record. The evidence has not
been properly appreciated. The Court has committed error in
believing that in the complaint Exhibit-21, it is nowhere stated
that the accused no.1 had assaulted the complainant with iron
bar on 21st July, 2000. The trail Court had erred in observing that
in respect of the evidence dated 8th August, 2000, there is nothing
on record to show that any complaint was registered on 8 th
August, 2000. The complainant is a illiterate lady and does not
know to whom she narrated the incident of 8th August, 2000.
Medical yadi shows the date as 8 th August, 2000. The medical
oficer has deposed that on the basis of X-rray report, he gave the
fnal medical certifcate of fracture. The medical oficer has stated
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that on the basis of X-rray report, he issued medical certifcate on
18th August, 2000, and there is evidence to show that the
complainant was admitted to 8th August, 2000 to 18th August,
2000. There is no reason to doubt the evidence of eye witnesses.
Complainant is the wife of accused no.1. Her evidence ought not
to be disbelieved by the trial Court. All charges were proved
against the accused. The order of the trial Court is perverse.
Trial Court has failed to appreciate evidence.
8 P.W.1Vilas Choudhary is the panch witness for spot
panchanama. He has not supported prosecution case. The spot
panchanama mentions that stick used for assaulting injured was
recovered from the spot. He has been declared hostile. P.W.2
Sadashiv Sonwane is the eye witness to the incident. He was
declared hostile.
9 P.W.3 Kamalabai Suryawanshi is the complainant. She
stated that on 7th July, 2000, at 7:30 p.m., she was at Mulher. She
was sitting on the platform of house. Accused no.1 came there
and told her not to live in his house. He abused her. He assaulted
her with iron bar. She went to police station at Mulher and lodged
complaint against accused. She stayed in the house of her
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relative Sadashiv Sonwane (P.W.2). On the next day, she went to
her house. Door was locked. She sat on the platform. Accused
came there and questioned her as to why she had lodged
complaint at police station. She claimed right to stay in the
house. Accused nos.1 and 2 caught her. Accused no.1 assaulted
her by stick on right hand which resulted in fracture. She again
went to police station and fled complaint. Police referred her to
Taharabad Primary Health Centre. Due to injury, she was referred
to Civil Hospital, Nashik. She was admitted for eight days on 18 th
July, 2000. She received medical certifcate. She gave it to Mulher
police station. Police recorded her supplementary statement on
18th July, 2000. The accused had also assaulted her on her legs,
back etc. They are not present in Court and she can identify
them. She identifed the stick by which accused no.1 assaulted
her. In cross-examination she stated that she is residing at village
Kharde since last one and half year. She has fled suit for
recovery of Rs.1,20,000/-r, as maintenance from accused. The suit
was fled in July 2000 when she was assaulted and driven out by
the accused. Child was born to her from accused no.1. She has
also fled a suit for partition in 2001 at Satara Court. Her
marriage with accused no.1 was performed in 1972. After
marriage for 8 to 10 years she was given good treatment, and,
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thereafter she was ill treated by accused no.1. She did not fle any
complaint against accused no.1 from 1982 to 2000. All the
agricultural land and house is in the name of accused no.1. She
was insisting that accused should give land and property in her
name, but, he refused to do so. On that count there is dispute
between them. The accused no.1 has not transferred any land in
her name. He maintained relationship with another woman. She
had fled complaint under Section 494 of IPC against husband.
Accused nos.1 and 2 are residing separately. She fled complaint
on 7th July, 2000 at Mulher outpost at 7:30 p.m. Police told her to
fle complaint in the Court. She has not stated to the police that
on 7th July, 2000, accused no.1 had assaulted her with iron rod.
On 8th July, 2000, when she went to the house of accused, she was
alone. She fled a complaint in writing to Mulher police station.
She do not know whether police accepted it. Copy of complaint
dated 8th July, 2000 was not given to her by police. She went to
Taharbad Primary Health Centre at 08:00 a.m. on 8 th July, 2000.
Police issued medical certifcate. There were stick marks on
person and fracture to her hand. She was admitted in the
hospital. Doctor gave her certifcate. She did not go to house of
accused no.1 thereafter. She fled civil suit and criminal case
against accused no.1.
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10 P.W.4 Bansilal Battise has stated that accused no.1
had assaulted complainant by stick on hand and other parts of
body. Accused no.3 caught complainant. Accused no.2 assaulted
complainant. He identifed accused no.1. He can identify other
accused. They are not present in the Court. His statement was
recorded by police on 19th July, 2000. In the cross-examination he
stated that complainant is cousin of his mother. He visits their
house. Since last 8 to 10 years, there were quarrels between
accused no.1 and complainant. He was present at village Mulher
on 7th July, 2000. He do not know whether any incident took place
on 7th July, 2000. He know Sadashiv Pandurang. He do not know
about the incident dated 7th July, 2000. The incident was going on
at the back side portion of wada. There were 10 to 12 persons.
P.W. 5 Bhika Lokhandehas deposed that he is the brother of the
injured. He took her to Mulher to send her to her husband's
house. It was about 07:15 a..m. Accused no.1 assaulted P.W.3 by
stick. Accused no.3 caught P.W.3 Kamalabai. She sustained injury
to her right hand. Villagers intervened. He went to Taharabad
PHC for treatment of P.W.3.They were advised to go to Nashik for
treatment of fracture. In the cross-examination he stated that
there was no complaint at the police station about incident dated
7th July, 2000. P.W.6 Kailas Ahire is the eye witness to the incident.
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He did not support the prosecution case. He was declared hostile.
P.W.7 Dr.Satish Dayaram Suryawanshi is the medical oficer. He
has referred to injuries sufered by P.W.3. According to him, injury
no.1 is grievous. Other were simple injuries. Patient was referred
to X-rray at Civil Hospital, Nashik. After receiving X-rray report,
they issued medical certifcate. all injuries may be possible by
hard and blunt object. Jaikheda police station had refereed the
injured for medical treatment. In the certifcate Exhibit-39 and
the register it is not mentioned that the injured was referred by
police. History of injuries might be mentioned in the certifcate.
Firstly, the date on the register was mentioned as 8th August,
2000, but, later on it is changed to 8th July, 2000. In Exhibit-39,
the date was changed to 8th July in place of 8th August. P.W.8 is
ASI attached to Mulher outpost. He registered the occurrence
and referred the complainant to medical examination. Medical
certifcates was fled by complainant on 18 th July, 2000 referring
to grievous injury to her. Supplementary statement of
complainant was recorded. Crime was registered at Jaikheda
police station under Sections 323, 325 and 504 read with 34 of
IPC. Exhibit-21 is N.C. registered by him. He recovered the stick
from the spot. He admitted that the complaint was lodged in
respect to the incident dated 7 th July, 2000. He recorded the
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complaint on the same day. On the said complaint, he registered
N.C. complaint and intimated about it to the complainant. The
date was wrongly mentioned on Exhibit-51 as 8 th July, 2000. P.W.9
Datta Tiwari is the eye witness. He stated that he has not seen
incident. He do not know whether accused assaulted the
complainant.
11 On the basis of the evidence adduced by the
prosecution, trial Court gave a fnding that the prosecution has
not proved that on 8th July, 2000 accused had caused grievous
hurt to the complainant. Prosecution has also failed to proved
that the accused had caused hurt to the complainant, and,
intentionally insulted and provoke the complainant for causing
breach of peace. It was observed that the complaint dated 7 th July,
2000 at Exhibit-21, contains diferent facts. It is mentioned that
on 7th July, 2000 at 7:30 a.m. when complainant was sitting on the
platform of her house, accused no.1 told her to leave the house,
and, assaulted her with fst and kick blows. It is also mentioned in
the complaint Exhibit-21 that accused no.1 threatened the
complainant to cause her death, and, hence, she lodged the
complaint at Mulher outpost. The notings on the complaint shows
that non cognizable complaint was registered at Mulher outpost
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and the complainant was directed to approach the Court. In the
complaint, P.W.3 stated that the accused told her to leave the
house and abused her and assaulted with iron rod. Thus, the
deposition is contrary to the complaint at Exhibit-21. It was
further observed that in respect to incident dated 8 th July, 2000,
there is no separate complaint on record. Supplementary
statement of the complainant recorded on 18th July, 2000. The
submission of the prosecution is that Exhibit-52 is nothing but
the complaint relating to incident dated 8 th July, 2000, and, it has
to be treated as FIR. Jaikheda Police station has registered
C.R.No.92 of 2000 for the ofences punishable under Section 325,
323, 504 read with 34 of IPC, after supplementary statement was
recorded. P.W.3 has specifcally deposed that she rushed to the
police station immediately after the incident dated 8 th July, 2000,
and, lodged the complaint. There is nothing on record to show
that on 8th July, 2000, any complaint was registered at Jaikheda
police station or Mulher outpost. The investigating oficer has not
deposed in that regard. In the light of such discrepancies the trial
Court has observed serious doubt is created against the story of
prosecution since the complainant has stated that after the
incident dated 8th July, 2000, she rushed to the police station and
lodged the complaint. The investigating oficer has stated that he
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referred the complainant to hospital on 7 th July, 2000 itself. There
was no injuries on the complainant on 7 th July, 2000. She has not
stated that she sustained any injury in the incident dated 7 th July,
2000. The injury certifcate at Exhibits-39 and 41 were produced
by the prosecution. The medical oficer has examined the injured.
Exhibit-38, however, shows that the medical oficer suspected
fracture over the right arm. The notings on the injury certifcate
at Exhibit-39 shows that it was produced to the police on 8 th July,
2000. It was for the investigating oficer to register the ofence on
same day. The certifcate shows injuries sufered by the injured.
12 Thus noting the infrmities in the evidence of several
witnesses, the trial Court found that the prosecution has not
established the charges. It was observed that the eye witnesses
are deposing contrary facts to each other in respect of the
incident dated 7th July, 2000 and 8th July, 2000. The independent
eye witnesses did not support the prosecution case. The relations
between the accused no.1 and the complainant were strained.
13 P.W.1 is the panch witness to spot panchanma
(Exhibit-17). The panchanama was recorded on 19th July, 2000.
Stick allegedly used in the ofence was recovered. The alleged
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incident had occurred on 8th July, 2000. The recovery from spot of
incident was efected after 10 days from incident. P.W.1 has not
supported prosecution case. P.W.2 is the eye witness. He has
resiled from his statement. P.W.3 has stated that she had stayed in
the house of P.W.2 on 7th July, 2000. P.W.2 was hostile witness.
P.W.3 is the injured witness. She is the wife of accused no.1. She
has referred to incident dated 7th July, 2000 and 8th July, 2000.
According to her, she was in the house on 7th July, 2000. Accused
No.1 abused and assaulted her with iron bar. She went to police
station at Mulher and lodged complaint. She stayed at the house
of P.W.2. She again went to her house on 8 th July, 2000. Accused
no.1 assaulted by stick on hand. She again went to police station.
She fled complaint. Police referred he to health centre. She was
admitted for 8 days. She received medical certifcate on 18 th July,
2000. Exhibit-21 is the complaint dated 7 th July, 2000. It refers to
incident dated 7th July, 2000. The complaint alleges that
complainant was assaulted by fst and kicks. She was abused and
threatened. In examination-in-chief, P.W. 3 has stated that on 7 th
July, 2000, she was assaulted by iron bar. Exhibit-21 do not refer
to assault by iron bar. In the cross-examination, she denied that,
she had informed police that on 7th July, 2000, she was assaulted
by iron rod. The complaint dated 7th July, 2000, was recorded as
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N.C. complaint. The complainant was advised to approach Court
for fling complaint. The complaint dated 8 th July, 2000, is not
produced by complainant or police. Such complaint is not on
record. The prosecution case is based on complaint dated 8 th July,
2000. C.R.No.92 of 2000, was registered. The prosecution has not
clarifed as to which is the FIR in C.R.No.92 of 2000. The
marriage between P.W.3 and accused no.1 was performed in
1972. She was demanding property. Her demand was not
accepted by accused no.1. She fled complaint and suit. It appears
supplementary statement of complainant was recorded after
production of medical certifcate on 18 th July, 2000. Why police
did not followed up with hospital and obtain medical papers is
moot question. The complainant had motive to implicate accused.
P.W.4 is relative of complainant. He has stated that incident dated
8th July, 2000, had occurred at 06:00 a.m. He is eye witness. He
referred to place of incident as S.T. stand Mulher. P.W.3 has not
stated that incident dated 8th July, 2000, had occurred near
incident. He is silent about incident dated 7th July, 2000. P.W.3 has
stated that incident dated 7th July, 2000 and 8th July, 2000, had
occurred on platform of house. According to P.W.5 Bhika
Lokhande, he is brother of complainant. Incident is dated 8 th July,
2000. According to him, he is eye witness to the incident. He took
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P.W.3 to Mulher to send her to husband's house. P.W.3 has not
referred to his presence. There was no complaint regarding
incident dated 7th July, 2000. He had been to police station for
fling complaint. His version is contrary to Exhibit-21 i.e.
complaint dated 7th July, 2000. P.W.6 has not supported
prosecution. P.W.7 is medical oficer. He examined P.W.3. He
issued medical certifcate on receipt of X-Ray report. He admitted
that on medical certifcate and register, it is not mentioned that,
P.W.3 was referred by police. There is alteration in date
mentioned in register. He has stated that P.W.3 was referred to
civil hospital Nashik. The medical case papers of said hospital are
not on record. He did not bring X-Ray certifcate. Medico-rlegal
certifcate was issued on 18 th July, 2000. Weapon of assault was
not shown to him. P.W.8 was at Mulher outpost. According to him,
on 7th July, 2000, one lady came to outpost and lodged complaint.
He registered the occurrence. Complainant was referred to
medical examination. On 18th July, 2000, complainant fled
medical certifcate showing grievous injury. Supplementary
statement was recorded. He registered crime at Jaikheda police
station (Exhibit-21). His evidence contradicts P.W.3. On 7 th July,
2000, there were abuses and threat. On that day, N.C. was
registered. Exhibit-21 is N.C. and not FIR. This witness has not
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produced proforma of FIR. Reference letter Exhibit-51 does not
contain his signature, although, it was issued by him. He stated
that date was wrongly mentioned on Exhibit-51 as 8 th July, 2000.
It was given on 7th July, 2000. P.W. 9 was hostile. All these
discrepancies speaks volumes of doubt about version of
prosecution witnesses.
14 This Court is examining the challenge to the
judgment and order of acquittal. The parameters for adjudicating
the Appeal against acquittal are well settled in several decisions
of the Apex Court. I do not fnd any reason to take a diferent
view in the matter. This Appeal thus fails and deserves to be
dismissed.
15 Hence, I pass the following order:
:: O R D E R ::
(i) Criminal Appeal No.1210 of 2007, is dismissed
and disposed of accordingly.
(PRAKASH D. NAIK, J.)
