Babasaheb S/O. Ganpat Batule vs Sanket S/O. Vilas Shinde And ...
2023 Latest Caselaw 1739 Bom

                                                                     CriAppeal.685.2019.odt


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 685 OF 2019

Babasaheb S/o Ganpat Batule
Age : 47 Years, Occu. : Social Worker,
R/o. Ranjangaon Shenpunji, Tq. Gangapur,
Dist. Aurangabad                                              ... Appellant
                                                               (Orig. Informant)
                 Versus
1.      Sanket S/o. Vilas Shinde,
        Age : 32 Years, Occu. : Nil.,
        R/o. Chetna Colony, MIDC Ahmednagar,
        Dist. Ahmednagar

2.      Dinesh S/o Ramesh Salve,
        Age : 36 Years, Occu. : Driver,
        R/o. Chetna Colony, M.I.D.C. Ahmednagar,
        Dist. Ahmednagar.

3.      Shaikh Adam Shaikh Akbar,
        Age : 48 Years, Occu. : Business,
        R/o. Ranjangaon Shenpunji, Tq. Gangapur,
        Dist. Aurangabad.

4.      Bharat S/o. Pandharinath Garad,
        Age : 48 Years, Occu. : Business,
        R/o. Chetna Colony, M.I.D.C. Aurangabad.

5.      Ashok S/o. Gorakhnath Jadhav,
        Age : 46 Years, Occu. : Business,
        R/o. Chetna Colony, M.I.D.C. Aurangabad.

6.      Asif S/o. Muktar Khan,
        Age : 33 Years, Occu. : Labour,
        R/o. Ganesh Chowk, Golegaon,
        Tq. & Dist. Ahmednagar.

7.      The State of Maharashtra                              ... Respondents
                                                            (Respondent No.1 to 6
                                                            Orig. Accused No.1 to 6)

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                                                                              CriAppeal.685.2019.odt


                                            ...
                       Mr. U. B. Bondar, Advocate for Applicant.
                   Mrs. P. V. Diggikar, APP for Respondent No.1-State.
                                            ...

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

                                         DATE        : 21st FEBRUARY 2023.

ORDER (ABHAY S. WAGHWASE, J.) :

1. In the instant appeal the judgment and order of acquittal passed

by the learned Additional Sessions Judge, Vaijapur in Sessions Case No. 38 of

2014 is impugned by original informant, praying to quash and set aside the

said judgment by which accused - Respondents were acquitted from offences

punishable under sections 307, 120-B, 341 read with section 34 of Indian

Penal Code.

Brief facts giving rise to the case

2. Appellant was Deputy Sarpanch of Grampanchayat. 15 days prior

to the incident he had asked through his wife Subhadrabai, who too was a

member of Grampanchayat, details of expenses incurred by the

Grampanchayat for the last three years. On 22.05.2013 at around 9.30 p.m.,

when he was returning to the village after meeting with Police Head Constable

Shaikh Saleem, three unknown persons came from behind on Pulser

motorcycle. The person sitting as a second pillion rider hit the appellant by

CriAppeal.685.2019.odt

stick on his head. Thereafter, appellant's motorcycle was intercepted and he

was again beaten causing grievous injuries to his head and left knee. One

Tavera vehicle reached there. At that time these persons ran away. Informant

had noted number of the said motorcycle which was MH-16-AF-8089. One

Shivaji Mundhe took the appellant informant to hospital and thereafter he

lodged FIR against three unknown persons.

3. Investigation was carried out and after its completion, respondent

Nos.1 to 6 - accused were charge-sheeted and put up for trial, i.e. on the

charge of commission of above offences. However, after appreciating the oral

and documentary evidence, learned trial Judge held that prosecution has

failed to establish the charges and thereby acquitted all accused - respondent

Nos.1 to 6 from above charges.

4. Feeling aggrieved by the above judgment and order of acquittal,

original informant is questioning the same by filing instant appeal by invoking

section 372 of Cr.P.C.

SUBMISSIONS

5. Learned counsel for appellant appraised us about the background

of the case and he took us through the entire oral and documentary evidence

adduced before the trial court. It is his submission that prosecution had

CriAppeal.685.2019.odt

succeeded in bringing home the charges by adducing trustworthy and reliable

evidence. That, said evidence was supported by medical evidence and thereby

offences for which respondents were charge-sheeted were proved, but the

learned trial court failed to appreciate the same. It is pointed out that there

was testimony of informant injured himself and he has narrated and attributed

overt act to the accused persons, but the same was unfortunately disbelieved

by the learned trial Judge. Spot panchanama was proved by examining the

panch witness. Informant had also noted the vehicle number on which

assailants had came. However, learned trial Judge has failed to appreciate the

same and has surprisingly disbelieved the prosecution evidence. He invited our

attention to the medical evidence and medical certificate and submitted that

evidence of injured informant was corroborated by medical expert (PW-11 Dr.

Ritesh Pathak) and therefore learned trial court ought to have accepted the

case of prosecution, but it failed to do so and as there is failure on the part of

learned trial Judge in not appreciating the evidence in its proper perspective,

the judgment and order passed by the learned trial Judge is required to be set

aside.

6. On behalf of State, learned APP also submitted that in spite of

availability of injured witness account, the judgment and order of acquittal

cannot be said to be just, legal and proper.

CriAppeal.685.2019.odt

7. After hearing both sides, we have carefully gone through the oral

and documentary evidence before the trial Court. It seems that in all 13

witnesses were examined by prosecution i.e. injured informant PW-1

Babasaheb Batule. PW-2 Subhadrabai Batule wife of PW-1 informant and her

evidence is hearsay. PW-3 Ajinath Garkal has acted as panch to spot

panchanama which is at Exh.65. PW-4 Prabhakar Bargaje is panch to

memorandum of disclosure by accused Bharat. From his evidence it is seen

that the red colour pulser motorcycle is recovered at the instance of accused

Bharat. PW-5 Manik Mote is panch to memorandum of disclosure by accused

Asif and in his presence accused Asif has produced stick. This witness has

identified the memorandum and seizure panchanama at Exh.74-A and 74-B.

PW-6 Sunil Kale, panch to memorandum, has not supported prosecution. PW-7

Shivaji Mundhe, who had taken PW-1 informant to hospital. PW-8 Nivutti

Kangle turned hostile. PW-9 Santosh Dhakne is panch to seizure of clothes of

informant. PW-10 Ashok Lohkare is panch to memorandum of disclosure by

accused Sanket and recovery of black colour motorcycle bearing number

MH-16-AF-8089. PW-11 Dr. Ritesh Pathak is the treating doctor. PW-12 Kailas

Bhagwat has not supported prosecution. PW-13 Dashrath Chaudhari is the

Investigating Officer.

8. It seems that amongst above witnesses, unfortunately PW-6 Sunil,

PW-7 Shivaji, PW-8 Nivutti and PW-12 Kailas have not supported prosecution.

CriAppeal.685.2019.odt

9. In above backdrop, evidence of remaining witnesses is put to

scrutiny. Here, there is no dispute that law was set in motion by PW-1

informant alleging assault at the hands of three unknown persons. Under such

circumstances, it was initially expected of investigating machinery to get test

identification parade done. But surprisingly there is no cogent evidence on

this aspect. The very person who conducted test identification parade has not

stepped into the witness box. Therefore prosecution case suffered major dent.

There is no cogent and reliable evidence to the extent of whatever is deposed

by informant in the witness box. Evidence of wife of informant i.e. PW-2 -

Subhadrabai is apparently hearsay. Though there is testimony of PW-4

Prabhakar Bargaje in support of seizure of vehicle, in FIR it was reported that

vehicle was black colour, but recovery is unfortunately of red colour vehicle.

Likewise, PW-5 Manik Mote, before whom there was alleged disclosure at the

hands of accused Asif for production of stick, has deposed that his signatures

were obtained at police station i.e. after completion of panchanama.

10. Thus, in our opinion, though medical expert (PW-11 Dr. Ritesh

Pathak) is examined, when prosecution had not cogently proved the very overt

act or alleged incident of assault by stick, testimony of medical expert is of no

relevance.

CriAppeal.685.2019.odt

11. Therefore, from all angles, here prosecution case is very weak.

Almost half of the witnesses have stood hostile.

12. From above discussion it is revealed that except testimony of

PW-1 informant, who claimed assault by unknown persons and there being no

test identification parade, the very foundation of prosecution case has got

knocked off. Recovery is also rendered doubtful. For all above reasons, we

hold that learned trial court committed no error whatsoever in refusing to

accept the case of prosecution. With such quality of evidence, there is bound to

be acquittal. Therefore, no fault can be found in appreciation of evidence at

the hands of learned trial court. There being no merits in the appeal, we

proceed to pass following order :-

ORDER

The criminal appeal stands dismissed.

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

Tandale