Bombay High Court
State Of Mah vs Bhagwan Bhujangrao Gaikwad And Ors on 6 May, 2024
2024:BHC-AUG:9562
CriAppeal-744-2004
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 744 OF 2004
The State of Maharashtra
through Police Station Wadhona,
Taluka Udgir. ... Appellant
versus
1. Bhagwan s/o Bhujangrao Gaikwad
Age 32 years, R/o Jalkot,
District Latur.
2. Shivram s/o Mariba Waghmare,
Age 55 years
3. Madhav s/o Shivram Waghmare,
Age 35 years
4. Yadav s/o Shivram Waghmare,
Age 30 years
5. Balu @ Ankush s/o Shivram Waghmare
Age 20 years
6. Sahebrao s/o Shivram Waghmare
Age 25 years
7. Baliram s/o Manikrao Sonkamble
Age 45 years
All r/o Digras, Taluka Kandhar,
District Nanded. ... Respondents
[Accused]
.....
Mr. S. M. Ganachari, APP for the Appellant-State.
Mr. Nandagavale h/f Mr. V. G. Sakolkar, Advocate for the
Respondents.
.....
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CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 25.04.2024
Pronounced on : 06.05.2024
JUDGMENT :
1. Aggrieved by the acquittal of respondents by learned J.M.F.C.,
Udgir in R.C.C. No. 53 of 1999 vide judgment and order dated
28.07.2004, State has preferred appeal by invoking Section 378 of of
the Criminal Procedure Code [Cr.P.C.].
FACTS LEADING TO TRIAL ARE AS UNDER
2. Informant and accused no.1 are real brothers are neighbours.
There were disputes between them on account of area in possession
and their used to be quarrels between them on such count. On
28.11.1998, informant Shravan was abused by accused persons in
above background. When he requested them not to abuse him, it is
alleged that, all accused attacked him. When wife and sons of
informant came to his rescue, they too were beaten by means of stick,
kicks and fist blows. Accused also set vehicle owned by informant to
fire. Same night, complaint was lodged with police, on the strength of
which, crime was registered bearing Crime No. 91 of 1998 for
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offences punishable under Sections 147, 148, 149, 324, 325, 504, 506
and 435 of Indian Penal Code [IPC].
On completion of investigation, they were chargesheeted and
tried before learned J.M.F.C., Udgir vide R.C.C. No. 53 of 1999. On
appreciation and analyzing the evidence, learned trial Judge reached
to a finding that prosecution failed to establish its case beyond
reasonable doubt and extending benefit of the same, by judgment and
order dated 28.07.2004, all accused persons came to be acquitted.
Said judgment is now taken exception to, by the State.
SUBMISSIONS
On behalf of the appellant State :
3. Learned APP pointed out that there was dispute between
accused and informant, who are in close relation and immediate
neighbours. There used to be regular quarrels between both parties.
That, on 28.11.1998, informant was abused and on being questioned,
he was attacked and beaten by accused. He pointed out that when
informant's sons and wife came to his rescue, they were also beaten.
Therefore, all were beaten. Learned APP pointed out that all accused
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are named. Who was holding what is also stated by the informant, his
wife as well as sons. They are all consistent in their evidence. Their
evidence stood unshaken in cross. That, further, accused persons also
set jeep of informant to fire and caused loss and damage. Complaint
was promptly lodged. Pancha to spot and medical expert, who treated
injured, are examined. According to learned APP, there is improper
appreciation. There is not only eye witness account, but also injured
witness account. However, in spite of charges being proved, learned
trial court disbelieved the prosecution version. Consequently, learned
APP submitted that on re-appreciation, judgment under challenge is
required to be set aside by allowing the appeal.
On behalf of the respondents :
4. In answer to the above, learned counsel for the accused
respondents pointed out that admittedly there is previous enmity.
Complaint is with ulterior motive for false implication. He pointed out
that there was no occurrence as alleged by informant and that there is
no independent evidence about the incident. Moreover, only
interested witnesses are examined and even their evidence is full of
material omissions, contradictions and improvements. He further
pointed out that though there is medical evidence, there is
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overwriting over the same and as such, there is room to presume that
it is manufactured document. According to him, there are general and
omnibus allegations. Therefore, learned trial court rightly disbelieved
the prosecution version and acquitted accused. Resultantly, he
submitted that, there is no merit in the appeal and hence he prays to
dismiss the same.
IN BRIEF, EVIDENCE ADDUCED BY PROSECUTION IN TRIAL COURT
5. Prosecution seems to have adduced evidence of following
witnesses in support of their case:
PW1 Shravan, who is examined at Exhibit 78, deposed about
occurrence dated 28.11.1998 that, around 9.30 p.m., he
being abused initially in the backdrop of previous dispute.
According to him, when he requested not to abuse, he was
assaulted by Yadav, Shivram, Madhav by means of iron bar,
resulting into grievous injury to his head. According to him,
accused Sahebrao and Balu assaulted him by means of stick,
whereas accused Bhagwan and Baliram assaulted by means
of kicks, fist blows and stone. When his sons Sangram and
Raju and wife Bharatbai came, they were also beaten by
means of stone, iron rod and stick respectively. Thereafter
accused persons torched the jeep bearing no. MH-24-749
causing loss of Rs.3,00,000/-, and hence complaint.
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PW2 Bharatbai, wife of PW1, also stated in her evidence at Exhibit
80 that on said night, she heard abuses and after noticing
some incident outside the house, she went and at that time,
accused Shivram, Madhav, Yadav assaulted her husband by
means of iron bar causing him injuries on head, back and
right hand. Then they came towards her and she was beaten
by Madhav on the right hand, whereas accused Baliram hit
her with stone. Accused Bhagwan, Balu and Sahebrao beat
her son Sangram with iron bar. Accused Yadav and Madhav
assaulted her son Raju by means of stick. Accused Madhav
also assaulted her another son Satish with iron bar and all
accused put jeep to fire.
PW3 Sangram, son of informant also stated that there was abuse
to his father. That, Shivram, Madhav, Yadav, Sahebrao, Balu
and Baliram all abused his father and thereafter all seven
accused assaulted is father. According to him, his father was
assaulted with iron bar by Shivram, Madhav and Yadav,
whereas accused Balu, Sahebrao, Bhagwan and Baliram hit
his father with stick. This witness was also assaulted by
means of iron bar by accused Shivram and Yadav, whereas
his mother was assaulted by means of stick by Sahebrao and
Balu and accused set their vehicle on fire.
PW4 Raju, another son of informant, also reiterated about the
assault by accused to his father by means of iron bar and
stick. According to him, Shivram, Madhav, Yadav were armed
with iron bar, whereas accused Sahebrao and Balu used
sticks and accused Bhagwan and Baliram used kicks and fist
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blows as well as iron bar and sticks, causing grievous injuries.
He was assaulted on back and legs and accused persons set
their vehicle to fire.
PW5 Kerba, is pancha to spot panchanama. He identified the same
at Exhibit 93.
PW6 Kashibai, sister-in-law of informant, stated that she was
present in the house and that time she heard noise and came
out of the house and saw the incident.
PW7 Dr. Jadhav, who examined Shravan, Sangram as well as
Bhagirathibai and issued certificates Exhibits 104, 105 and
106.
PW8 Namdeo, pancha to seizure of stick and iron bar at the
instance of accused present in the police station.
PW9 API Gaur, who registered complainant and carried out
investigation.
ANALYSIS
6. Here, this court is dealing with an appeal against acquittal.
Therefore before examining the evidence, it is desirable to reproduce
the law on the aspect of power of the appellate court while dealing
with an appeal against an order of acquittal.
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7. Recently, the Hon'ble Apex Court in the case of Mohan @
Srinivas @ Seena @ Tailor Seena v. State of Karnataka 2021 SCC
OnLine SC 1233 and N. Vijayakumar vs. State of Tamil Nadu [(2021)
3 SCC 687] observed as under :
"While dealing with appeal against acquittal, by invoking
Section 378 of Cr.P.C., appellate court has to consider
whether trial court's view can be termed as possible view,
particularly when evidence on record has been analyzed.
The reason is that, an order of acquittal adds to the
presumption of innocence in favour of accused. Thus,
appellate court has to be relatively slow in reversing the
order of acquittal rendered by trial court. Therefore, the
presumption in favour of accused does not get weakened
but only strengthens. Such double presumption that enures
in favour of the accused has to be disturbed only by
thorough scrutiny on accepted legal parameters.
8. Very recently, the Hon'ble Apex Court in the case of Ravi
Sharma v State (Government of N.C.T. Delhi and another) , 2022
LiveLaw (SC) 615, has considered and discussed the law settled by
the Hon'ble Apex Court in the case of Chandrappa v. State of
Karnataka, (2007) 4 SCC 415, which are as under :
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"42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the
court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in
case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
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jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of
the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
Likewise in the same judgment, the Hon'ble Apex Court has
touched and dealt with as to what is meant by perverse findings by
taking recourse to the earlier decisions in the cases of Arulvelu and
another v. State, (2009) 10 SCC 206; Babu v. State of Kerala (2010) 9
SCC 189 and Anwar Ali and another v. State of Himachal Pradesh ,
(2020) 10 SCC 166.
9. Similarly, while dealing with the aspect as to what is meant by
"possible view", the Hon'ble Apex Court in N. Vijay Kumar (supra), by
referring to the Judgments in the cases viz. Murgesan v. State, (2012)
10 SCC 383, Hakeem Khan v. State of M.P., (2017) 5 SCC 719,
observed that "if the "possible view" of the trial Court is not agreeable
for the High Court, even then such "possible view" recorded by the
trial Court cannot be interdicted. It is further held that so long as the
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view of the trial Court can be reasonably formed, regardless of
whether the High Court agrees with the same or not, verdict of the
trial Court cannot be interdicted and the High Court cannot be
supplant over the view of the trial Court".
10. In the instant case, informant, his wife and two sons are the
only witnesses to the occurrence. Obviously, incident having taking
place in the courtyard of informant, there may not be independent
witnesses. All witnesses thus being interested witnesses, there
evidence is required to be meticulously and carefully appreciated. On
placing testimonies of PW1 to PW4 in juxtaposition to each other and
on comparing the same to ascertain whether they are lending support
to each other by giving consistent version, it is emerging as under:
PW1 Shravan-informant claims that accused Bhagwan gave him
kicks and fist blows and hit him with stone. His wife Bharatbai
attributed role to Bhagwan for using Iron bar, but in assaulting
Sangram. Whereas PW3 Sangram has attributed role to Bhagwan for
beating with stick to his father Shravan and giving fist and kick blows
to PW4 Raju. Thus PW3 Sangram does not himself speaks about he
being beaten by Bhagwan by means of Iron bar, as is deposed by his
mother. PW4 Raju attributes role of kicks, blows, iron bar and stick to
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Bhagwan, but when Bhagwan laid his hand on iron bar is not clarified
by either informant or other witnesses.
On carefully going through evidence of informant as regards to
the role of accused Shivram is concerned, he has attributed role of
using iron bar in beating informant as well as PW4 Raju on his left
arm. However, PW4 Raju himself does not speak about he being hit
by Shivram on his left arm. He only states that accused also assaulted
over his back side and leg. Bhartbai attributes assault by iron bar to
accused Shivram for hitting her husband PW1 Shravan only, and not
to her son Raju. In stead, she attributes role of assaulting her son Raju
to accused Yadav and Madhav, that too with stick and not iron bar.
Whereas her another son PW3 Sangram deposed that accused
Shivram hit iron bar to all four of them.
As regards to role of accused Madhav is concerned, informant
deposed that he was assaulted by Madhav with iron bar and blow was
also given to Bharatbai. Bharatbai corroborates assault by Madhav on
her right wrist. However, she further attributes role to accused
Madhav for hitting her son PW4 Raju with stick and not iron bar.
CriAppeal-744-2004
All four are found to be attributing assault to accused Yadav by
using Iron bar, but there are contradictions about who was assaulted
by him. Further, informant and his wife are also speaking about he
using stick in assaulting PW4 Raju. Thus, he is also said to have put to
use iron bar as well as stick.
As regards role of accused Balu is concerned, there are
allegations of use of stick being hit to informant and Raju. On the
contrary, Bharatbai alleged that accused Balu used iron bar to hit
Sangram, but Sangram attributed role to Balu for using stick, and that
too only to his parents.
Informant claims that he was hit with stick whereas his wife
was hit by stone by accused Sahebrao. But his own wife alleges
assault by iron bar, that too only to son Sangram. Whereas Sangram
attributes role of using stick to Sahebrao, not to himself but to his
parents and brother.
Further according to informant, accused Baliram used both,
kicks and fist blows as well as stone in assaulting himself, and also
assaulted his wife with stone on shoulder and back. But PW3
Sangram attributes role of using stick to accused Baliram, which is not
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stated by his parents. Whereas PW4 Raju made omnibus allegations
attributing use of kicks, blows, stick as well as iron bar.
Therefore, above witnesses are giving distinct roles. There is
variance in the articles allegedly held by each of the accused and
allegedly put to use.
11. PW7 Dr. Jadhav is the doctor who had occasion to examine and
treat witnesses and he has issued certificates of informant Shravan,
PW3 Sangram and Bhagirathibai. PW4 Raju does not seem to have
been examined. Doctor has opined injuries suffered by informant
Shravan, Sangram and Bhagirathibai to be simple. However, in cross,
medico legal expert has answered that he has examined only three
injured and that, he has examined woman namely Baghirathibai and
not Bharatbai. He admitted that certificates Exhibits 104 to 106 do
not match in sequence of injuries as per MLC register. He has
admitted that there is overwriting in respect of description of injuries
on the person of informant Shravan and Sangram. He is also unable
to remember at what time injured came at Primary Health Center.
12. It is noticed that in trial court, PW8 Namdev has been
examined in support of recovery, but there is no memorandum and
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this witness at Exhibit 111 directly speaks about police informing
about quarrel and Police Head Constable preparing seizure
panchanama of one iron bar and one stick and taking his signature
over it. He identified the same to be at Exhibit 112. Finding him not
supporting, learned APP was permitted to put questions to him,
wherein he denied there to be three iron bars and two sticks. In cross
at the hands of defence, this witness has admitted that police did not
affix label over sticks or any other weapon. According to Investigating
Officer, on 02.12.1998 accused Bhagwan alone came to police station
with three sticks and three iron bars, but evidence of PW8 is silent
about presence of accused Bhagwan. Therefore even so called
recovery is not cogently proved.
13. To sum up, testimonies of PW1 to PW4 are not consistent.
There are material omissions, contradictions. Allegations of setting
vehicle to fire are general and omnibus in nature. Documents of
ownership of vehicle are not gathered and made part of investigation
papers. Therefore, evidence on behalf of prosecution is apparently
weak in nature. There is no independent witness in spite of
occurrence taking place in a residential locality and when prosecution
itself shows presence of 40 to 50 people on the spot. There seems to
be dispute between both brothers, i.e. between informant and accused
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Bhagwan. In said backdrop, there seems to be implication. It was
expected of prosecution to prove the case beyond reasonable doubt,
that ingredients of each of the offences existed in the evidence on
behalf of prosecution.
14. For all above reasons, and bearing in mind the settled law
regarding appreciation of evidence in appeal against acquittal, there is
no merit in the present appeal and as no case to interfere is made out,
I proceed to pass the following order :
ORDER
The appeal is hereby dismissed.
[ABHAY S. WAGHWASE, J.]
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