Bhingresh @ Babasaheb S/O. ... vs The State Of Maharashtra And ...
2023 Latest Caselaw 1548 Bom

                                                        CriAppeal 569-2019 with ALS-169-2019.odt


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 569 OF 2019

Bhingresh @ Babsaheb S/o Pandurang Jogdand
Age:- 39 Years, Occu:- service,
R/o Nagoba Galli, Peth, Beed.
Taluka and District Beed.                                     . . . Appellant
                                                              (Informant)
                 Versus

1]      The State of Maharashtra

2]      Sundar S/o Tatyaram Waghmare
        Age:- 50 Years, Occu:- Business,
        R/o Balbhimnagar, Beed,
        Taluka and District Beed.

3]      Vishal S/o Sundar Waghmare
        Age:- 30 Years, Occu:- Business,
        R/o Balbhimnagar, Beed,
        Taluka and District Beed.

4]      Bharat @ Bhalya S/o Bhaskar Kamble,
        Age:- 28 Years, Occu:- Labourer,
        R/o Balbhimnagar, Beed,
        Taluka and District Beed.

5]      Akshay S/o Rajesh Kokate,
        Age:- 28 Years, Occu:- Labourer,
        R/o Balbhimnagar, Beed,
        Taluka and District Beed.                             . . . Respondents
                                                     (R. Nos. 2 to 5 Original Accused)

                                WITH
       APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 169 OF 2019

The State of Maharashtra
through Police Station Officer,
Police Station, Peth-Beed,
Taluka and District Beed.                                     . . . Applicant

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                                                        CriAppeal 569-2019 with ALS-169-2019.odt




        Versus

2]      Sundar S/o Tatyaram Waghmare
        Age:- 46 Years, Occu:- Business,
        R/o Balbhim Nagar, Beed,
        Taluka and District Beed.

3]      Vishal S/o Sundar Waghmare
        Age:- 26 Years, Occu:- Education,
        R/o As above.

4]      Bharat @ Bhalya S/o Bhaskar Kamble,
        Age:- 24 Years, Occu:- Labour,
        R/o As above.

5]      Akshay S/o Rajesh Kokate,
        Age:- 24 Years, Occupation
        and R/o as above.                                    . . . Respondents


                                         .....
      Mr. H. V. Tungar, Advocate for the Appellant in Cri/Appeal/569/2019
                  Mr. R. V. Dasalkar, APP for State in both appeals
                                         .....


                                    CORAM : SMT. VIBHA KANKANWADI AND
                                            ABHAY S. WAGHWASE, JJ.

                                    DATED   : 15 FEBRUARY 2023


JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Criminal Appeal No. 569 of 2019 is at the instance of original informant

who had lodged FIR on the strength of which crime no. 27 of 2015 for the

offences punishable under Sections 307, 325, 341, 336, 337, 147, 148, 149

CriAppeal 569-2019 with ALS-169-2019.odt

and 323 of the Indian Penal Code (IPC) was registered at Peth Beed Police

Station. Upon trial present respondents came to be acquitted from all charges

and hence the appeal.

2. Informant appellant set law in motion alleging that while he and one

Sushil were returning home in the night of 21.03.2015 on motorcycle, in the

backdrop of a quarrel which took place one day prior, accused persons

intercepted them and mounted assault on them by means of iron rod and

wooden sticks. That, informant suffered grievous head injury and a fracture

injury to leg whereas, his companion also suffered injury and therefore, while

taking treatment, report was lodged and the same was registered vide above

crime number. Upon trial, prosecution adduced oral as well as documentary

evidence. Defence also adduced evidence. After appreciating the same, learned

trial Judge reached to a finding that prosecution has failed to establish the

charge and thereby, vide its judgment and order dated 24.04.2019, acquitted

the accused in Sessions Case No. 120 of 2015.

Feeling aggrieved by the order of acquittal, original informant is

questioning the maintainability and sustainability of the judgment by raising

following grounds:

CriAppeal 569-2019 with ALS-169-2019.odt

i] That, findings arrived at by learned trial Judge are contrary to the facts and circumstances on record.

ii] Learned trial Judge seems to have failed in appreciating the evidence of PW1 Bhingresh (informant) and his injured companion PW2 Sushil.

iii] Learned trial Judge has not taken into account the manner of assault and nature of injuries sustained by the informant and his companion.

iv] The medical evidence, though indicated grievous injuries and in spite of there being use of deadly weapons like iron rod, learned trial Judge has unfortunately disbelieved medical evidence also.

v] That, learned trial Judge failed to appreciate that testimony of PW1 informant and PW2 Sushil had remained unshaken in spite of lengthy cross-examination and thereby had erred in disbelieving them and that the entire judgment is based on surmises and conjectures. That, minor variances and inconsistencies are given undue importance.

vi] That, learned trial Judge has failed to appreciate that there was memorandum of disclosure and seizure of weapons and therefore prosecution had built strong case but unfortunately, in spite of availability of evidence to that extent, learned trial Judge has acquitted accused persons.

CriAppeal 569-2019 with ALS-169-2019.odt

Therefore, for all above grounds, it is submitted that, prayers made

herein are required to be allowed.

3. On behalf of State also, there is application for leave to file appeal and

on similar grounds, learned APP submitted that there was injured witness

account. The informant and his companion were both assaulted and they had

duly deposed to that extent in their testimony. The ocular account was

supported by medical evidence and that apart, evidence of recovery was

proved. However, learned trial Judge has failed to appreciate such quality of

evidence. There are other several legal points and aspects which are required

to be raised for questioning the sustainability of judgment and order of

acquittal and therefore State intends to file appeal and hence leave be granted.

4. This being the first appellate court, we are expected to re-appreciate, re-

examine and re-assess the entire evidence adduced by prosecution in the trial

court to ascertain whether, as contended before us, the judgment and order of

learned trial Judge is erroneous, perverse and not sustainable in law.

5. On going through the prosecution evidence, it seems that in all nine

witnesses were examined by prosecution to establish its case and reliance was

also sought on various documentary evidence like FIR, medical reports,

panchanamas etc.

CriAppeal 569-2019 with ALS-169-2019.odt

6. Before examining and scrutinizing the oral account, it would be

appropriate to first define the status and role of each of the witnesses

examined by prosecution. PW1 Bhingresh seems to be the informant and

victim who has lodged the FIR. PW2 Sushil seems to be the companion of PW1

informant and even he claims to have become victim of assault at the hands of

accused persons. PW3 Dhammapal is brother of PW1 informant. PW4

Subhash-pancha to spot panchanama has not supported prosecution. PW5

Sandip and PW6 Sachin are panchas to seizure of cloths. PW7 Dr. Amol and

PW8 Dr. Suresh are medical officers who had occasion to examine and treat

PW1 informant. PW9 API Pavra is the investigating Officer.

EVIDENCE

7. PW1 informant is the crucial witness and therefore it would be

appropriate to first visit his deposition which is at Exhibit 50. It is emerging

that according to him, on 21.03.2015 while he and Sushil (PW2) were

returning home on motorcycle from the Ginning Mill of one Sarda and when

they had reached near Totla flour-mill, their motorcycle was intercepted by

accused no.1 Sundar. According to PW1 informant, son of accused no.1 was

also accompanying him. Accused no.1 allegedly inquired the informant as to

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why quarrel was raised by him one day prior to the incident. Thereafter,

accused No.1 assaulted the informant by means of iron rod on his head. This

was followed by assault by his son Vishal (accused no.2) also by iron rod on

his head, as a result of which he collapsed and thereafter, again accused no.2

Vishal inflicted blows of iron rod on his right leg below knee. At that time,

accused no. 3 Bharat and accused no.4 Akshay, who were said to be

accompanying accused nos. 1 and 2, also hit him by means of stones as well as

sticks. Thereafter, PW2 Sushil managed to rush home and call brother of PW1,

who reached there and thereafter accused persons fled and injured PW1

informant was brought to hospital. This witness in witness-box has stated

about identifying the iron rod which was used as weapon by the accused in the

assault. He has also identified clothes to be the same on his person at the time

of assault and were said to be blood stained.

8. Now, let us see whether his testimony is as per his own statement

Exhibit 51 on the basis of which crime was registered. We find that in Exhibit

51 he has reported that accused no.1 Sudar gave blow of iron rod and he also

spoke about accused no.2 Vishal giving blow of iron rod on his head. However,

he has not stated that he collapsed. His statement Exhibit 51 is also found to

be silent about assault by accused no.2 on his legs. The persons named by him

to be present as per Exhibit 51 were not stated by him while in witness-box.

Even in Exhibit 51 he is silent about stones being pelted on them while they

CriAppeal 569-2019 with ALS-169-2019.odt

were arriving at the spot. Therefore, prima facie material appearing in Exhibit

51 is not narrated in the oral testimony before the court.

In the lengthy cross-examination of PW1 informant, in the initial part,

there are questions about incident which allegedly took place prior to the

incident in question and about crime being registered against him (informant)

for commission of offence punishable under Section 394 of IPC. Crimes and

his antecedents, including his involvement in an offence punishable under

Section 302 of IPC, are also brought in cross-examination. He answered that

on the day of incident he was on duty up to 5.00 p.m. and he met PW2 Sushil

between 6.00 p.m to 6.30 p.m. and since then they were both together. He

denied that prior to the incident he and PW2 Sushil had consumed liquor. He

answered that when they reached the spot at that time PW2 Sushil was the

rider and that after 10 to 15 minutes of the occurrence he was taken to

hospital. He answered that at hospital police approached him and he gave

information. Then he again stated that next day i.e. on 22.03.2015 police had

again approached him and that time he gave report Exhibit 51. He is unable to

state by what means accused nos. 3 and 4 assaulted him. He denied that on

account of falling from motorcycle, he had suffered injuries.

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9. Now, let us visit evidence of PW2, who according to prosecution is also

an injured eye witness. It has come in his testimony that accused Sundar gave

blow of iron rod on the head of informant whereas, his son Vishal also gave

blows of iron rod upon back and legs informant. He has not stated that

accused No.2 Vishal gave blow on head. According to him, accused nos. 3 and

4, who were also present at the spot, had assaulted informant by means of

wooden stick and iron rod. He stated that accused no.1 Sundar assaulted this

witness upon his back and arm by iron rod. He claims that due to fear he fled

from the spot. While under cross-examination on the point of occurrence, he

speaks that after assault he went home and he met informant on the next day

morning at about 10.00 a.m. to 10.30 a.m. He admitted about questioning

informant as to who brought him to the hospital. He denied having stated the

portion marked "A" and "B" in his statement to police.

10. Therefore, on comparing and placing versions of PW1 informant and

PW2 Sushil in juxtaposition, it is clearly emerging that in spite of they both

claiming to be together and further claiming to have been intercepted and

assaulted by accused no.1, their versions as regards actual assault are not

found to be consistent. Even role attributed to accused nos. 1 and 2 is not

consistent. PW2 Sushil has stated that accused nos. 3 and 4 also mounted

assault by means of iron rod and wooden stick, but such is not at all the case

of prosecution. Rather, prosecution case is that accused nos. 3 and 4 were

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armed with iron rod and not wooden sticks. It is also pertinent to note that

alleged occurrence has taken place in the night and there is no material or

evidence to indicate that there was source of light at the scene of occurrence.

Even PW2 Sushil when claimed that he fled from the spot, it was expected of

him to immediately inform the same to the relatives as this witness has

admitted in his cross-examination that PW1 was residing at approximately 200

meters. Even PW2 Sushil does not seem to have approached police and taken

steps to promptly report in spite of there being alleged assault with iron rod

and sticks. This is unnatural conduct on his part. More surprising part is that

in spite of he claiming to have been a victim of the assault, he has not

approached hospital and has not got him examined or treated. Therefore, such

circumstances create doubt, more particularly, when PW1 informant and PW2

Sushil are not found to be consistent as regards the roll of accused nos. 1 and

2.

11. PW3 Dhammapal, who is undoubtedly brother of PW1 informant, is also

examined. However, admittedly he reached the spot after the occurrence. His

testimony shows that whatever information he received was from his brother

and as such his testimony is based on hearsay information and cannot be

taken into account to reach to a conclusion about the actual occurrence.

CriAppeal 569-2019 with ALS-169-2019.odt

12. Now let us visit testimony of PW7 Dr. Amol and PW8 Dr. Suresh. They

both are medical experts. Record shows that PW1 informant first went to PW7

Dr. Amol and thereafter on his own he went to PW8 Dr. Suresh. Both these

doctors are speaking about examining and coming across CLW on scalp which

is simple in nature and fracture to tibia fibula, whereas PW8 Dr. Suresh spoke

about coming across swelling, movement restriction, inability to walk and

stand. PW8 Dr. Suresh has taken x-ray of PW1 informant and found that there

was commuted fracture of tibia of right side. PW7 Dr. Amol in his cross-

examination has admitted that injuries noted by him are also possible on

account of fall from motorcycle. Even otherwise, injuries noted are simple and

one fracture which is grievous one. However, as stated above, medical expert

do not deny possibility of injuries in accident.

13. It is revealed that according to PW7 Dr. Amol, the first Doctor at District

Hospital, the history given by PW1 informant is about assault at around 10.30

p.m. However, in FIR time of occurrence is given at 8.30 p.m. That apart,

number of injuries stated by PW1 informant do not corroborate with the

injuries noticed and detected by PW7 Dr. Amol which are reflected in Exhibit

68.

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14. Though panchas are examined, unfortunately PW4 Subhash i.e. pancha

to spot panchanama has not supported prosecution and as such, here, the very

scene of occurrence is not proved. Though prosecution claims that clothes over

the person of injured PW1 informant were seized, in spite of occurrence taking

place on 21.03.2015, surprisingly, as per evidence of pancha witness PW5

Sandip, his clothes are shown to be seized on 25.03.2015, i.e. after four to five

days.

15. Prosecution also asserted that there is seizure upon disclosure of

accused by virtue of which there is recovery of weapon. In such support,

prosecution seems to have examined PW6 Sachin. However, on going through

is testimony, it is evident that before this pancha witness came in contact with

accused, police officer had already informed him that accused was intending

to hand over weapons and therefore, so-called disclosure is rendered

invaluable and insignificant as regards recovery and discovery is concerned.

16. PW9 API Pavra is the investigating officer. He has confirmed about PW2

Sushil stating portion marked "A" and "B" in his statement under Section 161

of Cr.P.C.

17. On taking survey of entire prosecution evidence as reproduced above,

here, in our opinion, there are material inconsistencies between injured

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informant himself and his so-called associate PW2 Sushil. They both are not

lending support to each other on the crucial aspect of alleged assault. Number

of blows and sites of injuries quoted by PW1 informant are mismatching with

medical evidence. Spot panchanama and seizure panchanama are also

rendered doubtful. Medical experts have not ruled out possibility of accidental

fall. Therefore, taking into account the attending circumstances and the oral

evidence which fails to inspire confidence, the only conclusion that can be

drawn is that prosecution has not established its case beyond reasonable doubt

by leading cogent and firm evidence.

18. We have gone through the judgment passed by learned trial Judge. It

seems that learned trial Judge has in detail reproduced and discussed the

entire prosecution witnesses and by applying judicial mind and applying the

settled legal principles of law, the evidence has been appreciated. The

conclusion and findings reached at are based on sound reasons. Appellant

could not point out as to how learned trial Judge failed to appreciate the

evidence on record and that there was non-application of mind and any

perversity in reaching to the conclusion of acquittal of accused. Resultantly,

finding no merits, in our considered opinion, the appeal deserved to be

dismissed.

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19. Having dealt with merits of the case in its entirety in the above appeal,

no fruitful purpose would be served by allowing the State to prefer appeal and

therefore even their application for leave deserves to be dismissed. Hence, we

proceed to pass the following order:

ORDER

Both the proceedings i.e. Criminal Appeal No. 569 of 2019 and

Application for Leave to Appeal by State No. 169 of 2019 are hereby

dismissed.

(ABHAY S. WAGHWASE, J.)                        (SMT. VIBHA KANKANWADI, J.)




VRE