Bombay High Court
The State Of Maharashtra vs Sunny Sunil Shelar And Ors on 5 January, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
2024:BHC-AS:712
43-APEAL-45-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 45 OF 2016
The State of Maharashtra ...Appellant
Versus
1. Sunny Sunil Shelar
Age 29 years.
2. Krunal Shankar Shelar
Age 55 years.
3. Ketan Krunal Shelar
Age 28 years.
All R/at Saraswati Sadan,
Room No.101, Sanewadi,
Badlapur (W), District Thane. ...Respondents
....
Mr. Y.Y. Dabake, A.P.P. for the Appellant - State.
Mr. Bhushan Walimbe, Advocate for Respondent Nos.1 to 3.
....
CORAM : PRAKASH D. NAIK, &
DATE : 5th JANUARY, 2024.
P.C.:
1. The Appellant-State has preferred this appeal under Section
378(3) of Code of Criminal Procedure (for short "Cr.P.C.")
challenging the Judgment and order dated 13 th January 2015
passed by the learned 5th Joint C.J.J.D. and J.M.F.C. Ulhasnagar in
R.C.C. No.377 of 2011.
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2. The case of the prosecution is that the informant is resident
of Sanewadi, Badlapur. The girl residing in the same area used to
visit the house of informant. She had love for him. Informant was
a married person. He had told the girl that he would not keep
relationship with her. On 19.04.2011 at about 9.30 p.m. informant
was returning to his house on motorcycle. The accused were
standing on the road. Accused Nos.1 & 3 assaulted him with iron
rod on his head. Accused No.2 assaulted with brick. Report was
lodged with Badlapur Police Station for offences punishable under
Section 324 read with Section 34 of Indian Penal Code (for short
"IPC"). On completing investigation, charge-sheet was filed.
3. Charge was framed for an offence under Section 324 r/w
Section 34 of IPC.
4. On 21.06.2013, the prosecution examined seven witnesses.
PW-1 Nitin Ramchandra Shinde is the first informant and the
injured witness. PW-2 Vaibhav Baban Jamdare is the panch witness
for spot panchanama. PW-3 Ramchandra Dattu Shinde is the
father of PW-1. PW-4 Vishal Maruti Shinde is the friend of PW-1.
PW-5 Umesh Ankush Dhavale is the friend of PW-1. PW-6 Prakash
Rambhau Choudhari is the Investigating Officer. PW-7, Dr. Shalaka
Chandrakant Thorat is the Medical Officer.
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5. Vide Judgment and order dated 13th January 2015 all the
accused were acquitted.
6. Learned A.P.P. submitted that the impugned Judgment is
contrary to evidence on record. There are eye witnesses to the
incident. The evidence of injured witness cannot be discarded. The
evidence of injured witnesses corroborated by PW-3, PW-4 & PW-5.
The witnesses have categorically stated that PW-1 was assaulted by
the accused. The motive for the assault was proved. The accused
were armed with weapons. Minor contradictions would not be
sufficient to discard their evidence. The Medical evidence
corroborates the ocular evidence. The injured had suffered
injuries. The Medical Certificate was proved in evidence. The
Medical Officer has deposed that the injuries were possible by the
weapons used in the crime. The Judgment of the trial Court is
contrary to evidence on record.
6. Learned Advocate for the Respondents submitted that the
order of acquittal does not require interference. The Judgment is
supported by cogent reasons. The evidence of the witnesses does
not inspire confidence. There are contradictions in the evidence of
witnesses. Contradictions are in respect of weapons used in Crime.
All the three eye witnesses have referred to different weapons
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being used by the accused to assault the informant. The Medical
Certificate refers to history provided by the injured stating that
assault was by 7 to 8 known persons. There is no evidence that 7
to 8 persons were involved in assault. The Investigating Officer has
stated that he had seized the clothes from the person of the
informant, whereas the Panchanama Exhibit-23 shows that the
clothes were seized at the Police Station. The informant had
deposed that he was discharged from the hospital and he had gone
to the Police Station on 23.04.2011 and the clothes were seized in
the presence of the witnesses at the Police Station. The clothes
were kept in the house on 23.04.2011. He was examined by the
Medical Officer immediately after the incident. He admitted that
he was discharged from the hospital and he visited the Police
Station on 23.04.2011. The clothes were seized in the presence of
the witnesses at the Police Station. The Medical Officer has stated
that she was on duty on 19.04.2011 and 20.04.2011. Patient had
come to the hospital at about 1.30 a.m. and she had examined him.
The Investigating Officer has deposed that the iron rod and the
brick used for assaulting the informant was seized in the presence
of two witnesses and Panchanama was prepared to that effect.
However, the record does not show any such recovery of weapons
as deposed by Investigating Officer. The entire case suffers from
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suspicion. The prosecution has not been able to prove the charges
beyond reasonable doubt. The Appellate Court can interfere in the
Judgment of acquittal in exceptional cases. The trial Court order is
based on cogent reasons which does not warrant interference.
7. The trial Court has scrutinized the evidence on record.
Cogent reasons are assigned for finding of acquittal. The trial
Court has considered the fact that there are major contradictions in
the version of the witnesses, and weapons used by the assailants.
8. PW-1 is the injured witness. He is the first informant.
According to him the girl residing in adjacent building was visiting
his house. She was aged around 16 years. She was in love with
him. He was married person and did not consent for relationship.
On 19.04.2015 accused Nos.1 and 3 assaulted him by iron rod by
giving blow on his head. Accused No.2 assaulted by brick by giving
blow on neck. His father came there and took him to Badlapur
Police Station. Complaint was lodged. PW-3 (Father of PW-1)
deposed that there was altercation between accused and PW-1.
Accused No.3 assaulted PW-1 with Pipe. Accused No.1 assaulted by
stick. Accused No.2 assaulted with brick. According to PW-4
accused were assaulting PW-1 with iron rod. There was bleeding
from his head. He was taken to Police Station. PW-5 stated that all
the accused were assaulting PW-1 with iron rod. Thus there are
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contradictions regarding nature of weapons used by accused. PW-1
has not referred to any altercation with accused. PW-4 has stated
that he visited house of PW-1. PW-3 was at home. He do not refer
to presence of PW-3 at his residence. There are contradictions
regarding overt act of the accused. PW-3, PW-4, and PW-5 do not
refer to their presence at the spot interse.
9. PW-3 is the father of PW-1. PW-4 and PW-5 are friends of
PW-1. All of them are interested witnesses. Their evidence has to
be considered with caution.
10. The eye witnesses have referred to different weapons.
According to PW-1 the accused had assaulted with iron rod and
brick. Except PW-1, none of the witnesses have referred to assault
by brick. The father of the informant has deposed that all the three
accused had used different weapons i.e. iron pipe, stick & brick.
The other witnesses have stated that assault by all the accused was
by iron rod.
11. According to the Investigating Officer he had seized the
clothes of the informant from the person of informant. Panchanama
Exhibit - 23 shows that the clothes were seized at Police Station.
PW-1 has stated that he had gone to the Police Station on
23.04.2011 after he was discharged from the hospital and his
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clothes were seized at the Police Station. He also deposed that
before going to hospital he had kept the clothes at his house.
Whereas the father of informant has stated that the clothes of the
informant were removed from the person on the next day of
incident and he had kept the clothes in the house.
12. According to the Investigating Officer the iron road and brick
were seized in the presence of two witnesses. He prepared
Panchanama to that effect. However, the record does not show any
such recovery. The Medical Officer has examined the injured
person. PW-1 has stated that he was examined by the Doctor at
Central Hospital. He was admitted in Central hospital on
20.04.2011 between 11.00 a.m. to 11.30 a.m. The Doctor has
deposed that she was on night duty on 19.04.2011. She has
examined the patient. She had come to the hospital at about 1.30
a.m. Thus, according to PW-1 he was brought to the hospital at
11.00 a.m. but the Medical Officer has stated that the patient was
brought before her at 1.30 a.m. on 20.04.2011. It is also pertinent
to note that the patient had given history of assault by 7 to 8
known persons around 9.30 p.m. on 19.04.2011 by iron rod. The
Medical Officer has issued certificate of the injury. The certificate
shows history of assault by 7 to 8 known persons. It is not the case
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of any witnesses to show that 7 to 8 persons were involved in
assaulting PW-1. The motive attributed for assault is that the sister
of accused No.1 was in love with informant. He refused to keep
relations with her. Motive is weak. It is difficult to accept that the
accused would assault the first informant, who was a married
person and used to maintain relationship with the minor sister of
accused No.1.
13. Taking into consideration the totality of the circumstances,
the trial Court has observed that the prosecution has failed to
establish its case and acquitted the accused. Order of acquittal can
be interfered in exceptional circumstances.
14. I do not find any reason to interfere in the Judgment of
acquittal. The appeal is devoid of merits and required to be
dismissed.
ORDER
Criminal Appeal No.45 of 2016 is dismissed and stands
disposed of.
(PRAKASH D. NAIK, J.)
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