Bombay High Court

Siddharth Pandurangji Wankhede vs State Of Mah. Thr. Pso ... on 28 September, 2022

Bench: G. A. Sanap

                                      1                                44 Revn81.21 (J).odt


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           : NAGPUR BENCH : NAGPUR.

      CRIMINAL REVISION APPLICATION NO. 81 OF 2021


APPLICANTS                 : 1] Siddharth Pandurangji Wankhede,
                                Aged about 50 years, Occu. Cultivator,
                                R/o Gadge Nagar, Amravati.

                              2] Raja Jagdish Pinjarkar,
                                 Aged about 28 years, Occu. Labour,
                                 R/o Civil Lines, Paratwada,
                                 Tal. Achalpur, Dist. Amravati.

                                           VERSUS

NON-APPLICANT : State of Maharashtra,
                Through Police Station Officer,
                Police Station, Achalpur,
                Tal. Achalpur, Dist. Amravati.

----------------------------------------------------------------------------------------------
          Mr. Akshay M. Sudame, Advocate for the applicants.
          Mr. A. M. Kadukar, A.P.P. for the non-applicant/State
----------------------------------------------------------------------------------------------

                            CORAM : G. A. SANAP, J.
            Date of reserving Judgment        : September 08, 2022.
            Date of pronouncement of Judgment : September 28, 2022


JUDGMENT

1. Heard Mr. Akshay Sudame, learned advocate for the

applicants and Mr. A. M. Kadukar, learned Additional Public

Prosecutor for the non-applicant/State.

                            2                       44 Revn81.21 (J).odt


2.           ADMIT.     Taken up for final disposal by consent of the

parties.

3. In this revision application, challenge is to the judgment

and order dated 27.09.2021, passed by the learned Additional Sessions

Judge, Achalpur in Criminal Appeal No. 32/2011, whereby the learned

Additional Sessions Judge dismissed the appeal filed by the applicants

against the judgment and order passed by the learned Judicial

Magistrate, First Class, Court No.2, Achalpur in Summary Criminal

Case No. 37/2009, dated 12.05.2011. The learned Magistrate had

found the applicants guilty of the offences punishable under Sections

353 and 109 of the Indian Penal Code and sentenced them to suffer

simple imprisonment for 15 days and to pay fine of Rs.10,000/- each,

in default to suffer simple imprisonment for one month.

4. Few facts for decision of this revision application, are as

follows :-

The informant (PW1), in the year 2008, was working as

Senior Clerk in the office of Tahsildar, Achalpur, The members of 3 44 Revn81.21 (J).odt

Akhil Bhartiya Sena had a grievance against the informant on account

of his misbehaviour with Smt. Suman Kadu, who had gone to the

informant in connection with her work. Since, a complaint was made

to the Tahsildar against the informant, the Tahsildar sent peon namely

Agrawal with one member of Akhil Bhartiya Sena to call the

informant, who had gone to Rohit Internet for obtaining BDS. They

brought the informant before the Tahsildar (PW5). It is the case of the

prosecution that in presence of the Tahsildar and others, the applicant

no.1 abused the informant in filthy language. The members of Akhil

Bhartiya Sena, present in the office of the Tahsildar, requested the

Tahsildar to suspend the informant. Applicant no.1 declared before

the Tahsildar that they would drag the informant out of the office. It is

stated that the applicant no.2 caught hold hand of the informant and

tried to drag him out of the chamber of the Tahsildar at the instigation

of applicant no.1. This incident occurred on 25.08.2008. On the next

day i.e. 26.08.2008, at about 17.30 hours, the informant lodged report

against the applicants. On the basis of this report, crime bearing No.

84/2008 for the offences punishable under Sections 353 and 109 of

the Indian Penal Code, was registered against the applicants.

4 44 Revn81.21 (J).odt

5. After investigation, charge-sheet was filed against the

applicants in the Court of learned Judicial Magistrate, First Class,

Achalpur. The prosecution examined six witnesses. The learned

Magistrate, found the evidence sufficient to prove the charge and

convicted and sentenced the applicants as above. The applicants

preferred a statutory appeal against the judgment and order by the

learned Magistrate in the Court of learned Additional Sessions Judge,

Achalpur. The learned Additional Sessions Judge concurred with the

judgment rendered by the learned Judicial Magistrate, First Class,

Achalpur and dismissed the appeal. The applicants being aggrieved by

this order, filed this revision.

6. Learned advocate Mr. Akshay Sudame for the applicants

submitted that the learned Judicial Magistrate, First Class, Achalpur

and the learned Additional Sessions Judge, Achalpur have committed a

mistake in rendering the judgment of conviction. The learned

advocate submitted that the evidence on record is not sufficient to

prove the charge under Sections 353 and 109 of the Indian Penal Code

against the applicants. The learned advocate submitted that there are 5 44 Revn81.21 (J).odt

major inconsistencies in the evidence of most of the witnesses. The

learned advocate submitted that evidence of the Tahsildar, namely Anil

Bhatkar (PW5) and another witness Naib Tahsildar, namely

Vishwanath Ghuge (PW6) is contrary and inconsistent with the

informant (PW1). The learned advocate submitted that the Tahsildar

(PW5) and Naib Tahsildar (PW6) have not attributed any specific role

to applicant nos.1 and 2. The learned advocate submitted that PW5

and PW6 have stated that 25- 30 workers, who had come to the office

of Tahsildar, caught hold hand of the informant and abused him. The

learned advocate submitted that this evidence is contrary and

inconsistent with the evidence of the informant (PW1). The learned

advocate submitted that even the informant (PW1) has not attributed

any specific role to the applicant no.1. The learned advocate submitted

that major inconsistencies and contradictions in the evidence of the

eye-witnesses, in the facts and circumstances, create a doubt about the

actual occurrence of the incident as sought to be contended.

7. The second limb of the argument of the learned advocate

for the applicants is that the informant (PW1), the Tahsildar (PW5) 6 44 Revn81.21 (J).odt

and Naib Tahsildar (PW6) are the responsible government officers. It

is submitted that if the incident of a serious nature, as alleged, had

occurred on 25.08.2008 at 3.30 p.m., then report of the same ought to

have been lodged immediately. The learned advocate submitted that

the informant (PW1) lodged report on the next day i.e. 26.08.2008 at

17.30 hours. The learned advocate pointed out that the reasons for

delay, stated in column no.8 of the FIR, would indicate that the

delayed report was lodged in connivance and an afterthought. The

learned advocate submitted that this aspect has not been dealt with

either by the learned Judicial Magistrate, First Class or by the learned

Additional Sessions Judge. The learned advocate for the applicants

submitted that there is no evidence to prove the ingredients of the

offences. It is submitted that the delay has not been properly

explained. It is submitted that therefore, the judgment and order

passed by the Courts below suffer from patent illegality.

8. Learned Additional Public Prosecutor for the State

submitted that witnesses had no grudge against the applicants and

therefore, the possibility of false implication has been completely ruled 7 44 Revn81.21 (J).odt

out. The learned Additional Public Prosecutor submitted that the

applicants have admitted their presence on the given date and time in

the office of the Tahsildar to make a complaint/grievance against the

informant. The learned Additional Public Prosecutor submitted that

the Courts below have recorded cogent reasons in support of finding of

guilt. In the submission of learned APP, the evidence on record is

consistent and therefore, deserves acceptance. The learned APP

submitted that evidence of the informant (PW1) has been fully

corroborated by the evidence of eye-witnesses PW5 and PW6. The

learned APP submitted that concurrent finding of fact recorded on the

basis of concrete and cogent evidence does not warrant interference.

Learned APP submitted that no illegality has been committed by the

Courts below in the matter.

9. It is to be noted that the scope of revisional jurisdiction is

limited. Appreciation of evidence as a matter of course is not

permissible. In order to undertake the exercise of re-appreciation of

evidence in revisional jurisdiction, it must be established to the

satisfaction of the revisional Court that while rendering the decision by 8 44 Revn81.21 (J).odt

the Courts below, patent illegality has been committed or that the

order is perverse, inasmuch as there is no evidence to justify such an

order.

10. In order to appreciate the rival submissions, I have

minutely perused the judgments passed by the learned Judicial

Magistrate, First Class, Achalpur convicting the applicants and the

judgment passed by the learned Additional Sessions Judge, Achalpur

confirming the said decision. Perusal of the judgments would show

that both the Courts below have not considered the aspect of delay in

lodging report after 24 hours of the occurrence of the incident. It is to

be noted that the informant was working in the office of the Tahsildar.

The incident in question, as per the case of the prosecution, occurred

in the presence of Tahsildar, Achalpur. In this background, the delay of

more than 24 hours to lodge the report assumes significance. In

column no.8 of the first information report, the reason for delay has

been stated. It was stated that the report was lodged after

remark/suggestion of the Tahsildar. It is to be noted that this reason

for delay is not at all acceptable. If serious incident, as stated, had 9 44 Revn81.21 (J).odt

occurred in presence of Tahsildar, then immediately the Tahsildar

would have instructed the informant to lodge report. It has been

suggested to the witnesses in the cross-examination that since the

applicants made serious complaint against the informant and there was

failure on the part of the Tahsildar (PW5) to take immediate action,

the report was lodged to save him from further proceeding. Perusal of

the evidence of the witnesses, particularly evidence of the informant

(PW1), would show that he has not stated a word about the reason for

lodging report after 24 hours. It is to be noted that the reasons for

delay in lodging the report are not only required to be stated in the first

information report, but are required to be proved by leading evidence.

In my opinion, this is the most important aspect. This aspect has not

been dealt with. In the context of the nature of incident and the nature

of evidence, this fact assumes importance. In my view, this fact goes

against the case of the prosecution.

11. It is to be noted that a finding recorded without evidence

has to be termed as illegal and perverse. The question is whether there

is evidence to prove the charge against the applicants or not ? Perusal 10 44 Revn81.21 (J).odt

of the evidence of the witnesses would show that the same is vague and

cryptic. Evidence of the Tahsildar (PW5 ) and Naib Tahsildar (PW6),

who according to the case of the prosecution, were the eye-witnesses to

the incident, is inconsistent on material aspect with the evidence of the

informant (PW1). The informant (PW1) has stated that the applicant

no.1 abused him because he had thrown the papers of a widow by

name Suman Kadu. The abuses, according to the informant (PW1),

hurled at him were "rqEgh brds ektys dk;- rwEgh ,dk ckbZoj

izdj.kkps dkxni=s Qsdrkr". He has stated that when this

conversation was going on, applicant no.2 caught hold his hand and

pulled him. This is the only statement made by the informant (PW1)

about the incident. His statement would show that no specific role has

been attributed to the applicant no.1 at all. He has only attributed

some role to applicant no.2. The question is whether the role

attributed to applicant no.2 is sufficient to prove the offences against

applicant nos.1 and 2 ?

12. The Tahsildar (PW5) was present in the office when the

incident had occurred. In fact, the applicants had made a complaint 11 44 Revn81.21 (J).odt

against the informant to the Tahsildar. In his evidence, the Tahsildar

(PW5) has stated about the complaint made by applicant no.1against

the informant (PW1). He has stated that after the exchange of words,

the party workers caught hold hand of the informant and abused him.

They tried to drag him outside his chamber. He has stated that

applicant no.1 abused the informant (PW1). The specific abuses have

not been stated by him in his evidence. His evidence is silent about the

role played by the applicant nos.1 and 2 at the time of the incident.

Evidence of the Tahsildar (PW5), therefore, does not corroborate the

version of the informant (PW1). His evidence is contradictory and

inconsistent with the evidence of the informant (PW1).

13. The next important witness is Arvind Ghuge (PW6),

Naib Tahsildar. In his evidence he has stated that after hearing

commotion from the chamber of the Tahsildar, he went to the

chamber. He saw that the Tahsildar Bhatkar, informant Joshi, the

applicants and 20 - 25 party workers of the applicants were present.

He has stated that the applicants abused Mr. Joshi and threatened to

beat him. He has stated that the Tahsildar tried to pacify the 12 44 Revn81.21 (J).odt

applicants, however, the applicants tried to drag the informant outside

the chamber. Perusal of his evidence would show that he is not

supporting the evidence of the informant (PW1) on the actual

occurrence of the incident in the manner stated by the informant

(PW1). In fact, he has stated that the applicant no.1 as well caught

hold the hand of the informant. This is contrary to the case of the

prosecution.

14. In the facts and circumstances, the delay in lodging report

creates a doubt about actual occurrence of the incident as narrated by

the informant. Besides, there are major inconsistencies and

contradictions in the evidence of the witnesses, who according to the

prosecution, were present on the spot and saw the incident. No

independent witness has been examined to corroborate the evidence of

the witnesses. In my view, the evidence of prosecution witnesses,

prima facie, appear to be unreliable. The evidence is not sufficient to

prove the incident in question. In the facts and circumstances, I

conclude that this revision deserves to be allowed. Hence, the

following order :

                                                  13                        44 Revn81.21 (J).odt




                                                      ORDER

1. The Criminal Revision Application is allowed.

2. The order of conviction and sentence passed by the learned

Judicial Magistrate, First Class, Court No.2, Achalpur in Summary

Criminal Case No. 37/2009, dated 12.05.2011, is set aside. Similarly,

the judgment and order, dated 27.09.2021 passed by the learned

Additional Sessions Judge, Achalpur in Criminal Appeal No. 32/2011

confirming said conviction and sentence, is also set aside.

3. The applicants are acquitted of the offences punishable under

Sections 353 and 109 of the Indian Penal Code.

4. The fine amount deposited by the applicants be refunded to

them.

5. The revision application stands disposed of in above terms.