Bombay High Court

Vijaykumar Ramanlal Shah vs Suresh Uttamchand Sathiya And Ors on 3 July, 2023

Bench: S. G. Mehare

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

            CRIMINAL REVISION APPLICATION NO.18 OF 2006

     Vijaykumar Ramanlal Shah,
     Age 57 years, Occu. Business,
     R/o HIMCO House, Nehru Road,
     Jalna, Taluka and District Jalna.                ... Applicant.

                      Versus

     1.      Suresh Uttamchand Sethiya - Deleted.

     2.      Ritesh Suresh Sethiya,
             Age 26 years,

     3.      Rupesh @ Dharmendra Suresh Sethiya,
             Age 22 years,

             All R/o Mahico Colony, Jalna,
             Taluka and District Jalna.

     4.      State of Maharashtra.                    ... Respondents.

                                    ...
              Advocate for Applicant : Mr. Joydeep Chatterji.
             APP for Respondent No.4-State : Mr. Y. G. Gujrathi.
            Advocate for Respondent Nos.2 & 3 : Mr. S. G. Ladda.
                                    ...

                                  CORAM :       S. G. MEHARE, J.

RESERVED ON : 12.06.2023 PRONOUNCED ON : 03.07.2023

JUDGMENT :-

1. Heard the respective sides.

2. The injured/applicant has preferred this criminal

revision application under Section 397, read with Section 401

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of the Code of Criminal Procedure against the judgment and

order of acquittal of learned 4th Jt. Judicial Magistrate First

Class, Jalna, in R.C.C. No.396 of 2004, dated 29.10.2005.

3. The brief facts of the case were that the accused and the

injured had shops adjacent to each other. The incident

happened on 21.03.2004. The first informant and the injured

went to their shop. The accused asked them to park their

scooter at another place as it was their shop. The injured told

them they should remove their scooter parked in front of his

shop, and then he would remove his scooter. Then the accused

said to the injured, 'Is the road your father's'? Then they

started quarreling with the injured. The accused went into

their shop and brought a wooden log, and hit on the head of

the injured. The complainant tried to explain to them, but they

abused him, also. The report was lodged immediately. A crime

was registered for the offences punishable under Sections 323,

324 and 504, read with Section 34 of the IPC. The prosecution

examined seven witnesses in all and closed the case. The

accused had a defence of false implication. Appreciating the

evidence, the learned Magistrate acquitted the accused.

4. Learned counsel for the applicant/injured has

vehemently argued that there were no discrepancies and

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inconsistencies in the statement of the witnesses. The weapon

used in the crime was seized. The doctor proved the injuries.

There were eyewitnesses to the incident. However, the learned

Magistrate erroneously discarded the eye witness assigning the

reason that he was working in the firm having concern with

the injured. In fact, nothing was brought in the cross-

examination of the witnesses. The impugned judgment is

incorrect on the face of the record. The learned Magistrate has

incorrectly applied the law on contradictions and omissions.

Evidence has not been properly appreciated. The reasoning of

the impugned judgment and order is perverse and illegal.

Hence, it is liable to be set aside, and the case be remitted to

the trial Court for rewriting the judgment.

5. The learned APP supporting the complainant argued that

the acquittal is on technical grounds. The defence was not

probable. Hence, the impugned judgment and order of

acquittal is liable to be set aside.

6. Per contra, learned counsel for the respondents/accused

would argue that the parties had a civil dispute. Hence, the

accused have been implicated falsely in the crime. There were

no consistent statements as regards the incident. The injuries

suffered to the injured were possible by slipping the scooter.

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The prosecution did not prove the case beyond a reasonable

doubt. The father of the victim was allegedly examined as an

eyewitness. However, he was not present on the spot of the

incident. Hence, the impugned judgment and order is legal,

correct and proper.

7. Learned Magistrate acquitted the accused as the injured

and other witnesses did not corroborate each other, and there

are inconsistencies in their versions. There are also

improvements, contradictions and omissions in their versions.

The prosecution failed to prove who was the author of the

injuries caused to the injured. There was no sufficient

incriminating evidence against the accused. The prosecution

miserably failed to prove the ingredients of the sections

levelled against the accused beyond any reasonable doubt.

8. The learned Magistrate also recorded the findings that

the injured did not depose that he had not shown the spot of

the incident. But the Investigating Officer deposed that the

complainant Vijaykumar Shah had shown the spot of the

incident. The injured did not show the spot of the incident.

9. The injured categorically deposed that the accused

Ritesh brought the wooden log and hit on his head. He also

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described the role played by each accused. It was confirmed in

his cross-examination. The eyewitness also corroborated the

injured. The medical evidence corroborates the injured. It is

proved that accused Ritesh produced the weapon used in the

crime. The Medical Officer opined that the injury on the head

of the injured was possible by the stick shown to him. He also

deposed that the other injuries are possible by fists and blows.

As far as the spot panchanama was also proved. The

correctness of the impugned judgment has to be examined,

discussing the law on corroboration, contradiction and

omission, along with the evidential value of the testimony of

the injured witness.

10. The Hon'ble Supreme Court in M.O. Shamsudhin Vs.

State of Kerala, on 21 March 1995 in paragraph No.13 has

observed thus as regards the corroboration ;

"13. The word "Corroboration' means not mere evidence tending to confirm other evidence. In DDP Vs. Hester, (1972) 3 ALL ER 1056, Lord Morris said:

"The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is

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sufficient and satisfactory and credible, and corroborative evidence will only fill its role if it itself is completely credible."

11. It is well settled that corroborating evidence can be by

way of circumstantial evidence. Like contradiction,

corroboration is meant to test the truthfulness of the witness.

12. Recently, the Hon'ble Supreme Court, in the case of Balu

Sudam Khalde and another Vs. The State of Maharashtra ;

2023 Live Law (SC) 279 has laid down the law that evidence

of injured witness has greater evidentiary value and unless

compelling reasons exist, their statements can't be discarded

lightly.

13. In Ram Kishan Vs. State of U.P. ; AIR 2004 SC 4678, the

Hon'ble Supreme Court held that evidence of injured witness

cannot be discarded in toto on the ground of inimical

disposition towards the accused or improbabilities of narrating

the details of the actual attack. If evidence of injured witness is

otherwise reliable and trustworthy, then it carries more weight

and cannot be thrown away merely because it is not

corroborated by any independent witness. It is also settled that

little discrepancies cannot make evidence injured witness

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unacceptable. (The state of Maharashtra Vs. Nana Trimbak

Tadas , 2015 23. Feb)

14. The record reveals that an independent witness and the

Medical Officer corroborate the evidence of the injured

witness. The Medical Officer immediately examined the

injured. Barely the eyewitness was the servant of the injured in

the absence of other evidence cannot be disbelieved. His

presence on the spot of the incident was also proved. He had

no enmity with the injured. Previous enmity is a double-edged

weapon. On examining the record, it appears that a civil

dispute between the accused and the injured was not the cause

of implicating the accused in a false crime.

15. In the case of Shyamal Ghosh Vs. State of West Bengal ;

(2012) 7 SCC 646, the Hon'ble Supreme Court observed that

the discrepancies or the omissions have to be material ones,

and then alone, they may amount to contradiction of some

serious consequence. Every omission cannot take the place of a

contradiction in law and therefore, be the foundation for

doubting the case of the prosecution. Minor contradictions,

inconsistencies or embellishments of trivial nature which do

not affect the core of the prosecution case should not be taken

to be a ground to reject the prosecution evidence in its entirety.

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It is only when such omissions amount to a contradiction

creating a serious doubt about the truthfulness or

creditworthiness of the witness and other witnesses also make

material improvements for contradictions before the Court in

order to render the evidence unacceptable, that the Courts may

not be in a position to safely rely upon such evidence. Serious

contradictions and omissions which materially affect the case

of the prosecution have to be understood in clear contradiction

to mere marginal variations in the statement of the witnesses.

The prior may have effect in law upon the evidentiary value of

the prosecution case, however, the latter would not adversely

affect the case of the prosecution. I have gone through the

impugned judgment and order, the Court is of the view that

there were no material contradictions and omissions to doubt

the prosecution case and there was nothing to believe that such

contradictions and inconsistencies affect the core of the

prosecution case make it disbelieve.

16. The record reveals that there were no substantial reasons

to discard the evidence of the injured, eyewitness and medical

Officer for the sole reason that the first informant did not

witness the incident. A bare suggestion that the injury suffered

by the injured was possible by slipping the scooter was

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insufficient unless the opponent brings such circumstances on

record to believe such probability. In other words, to prove

probability, there must be circumstances to believe such

circumstances exists. The record also reveals that witnesses

have specifically deposed the role played by each accused.

17. Examining the record, with the law laid down in the

above cases, it is apparent that the learned Magistrate did not

appreciate the evidence in consonance with the law on

corroboration, contradiction and omission.

18. After examining the record and the impugned judgment

and order, the Court concludes that there was an apparent

error on the face of the record. Therefore, the criminal revision

application is liable to be allowed. Hence, the following

order :

ORDER

(i) Criminal Revision Application stands allowed.

(ii) The judgment and order acquitting the respondent/accused for the offences punishable under Sections 323, 324, 504 read with Section 34 of the IPC passed by the learned 4 th Jt. Judicial Magistrate First Class, Jalna, in R.C.C. No.396 of 2004, dated 29.10.2005 is quashed and set aside.

                                      10                  Cri.Rev.Appln.18-06.odt




             (iii)    The criminal revision application is remitted back

to the Court of learned 4th Jt. Judicial Magistrate First Class, Jalna for re-writing the judgment after giving an opportunity to both sides to advance the arguments.