[Cites 17, Cited by 0]
Bombay High Court
Vyankatrao Sambhajirao Kadam vs The State Of Maharashtra And Others on 22 December, 2025
2025:BHC-AUG:36641
CriAppeal-293-2005+
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 293 OF 2005
The State of Maharashtra
Through
The Police Station Mukhed,
Taluka Mukhed, District Nanded. ... Appellant
Versus
1. Madhav Baliram Kadam,
Age : 38 years,
2. Tukaram Baliram Kadam,
Age : 34 years,
3. Balaji Baliram Kadam,
Age : 31 years,
4. Sheshrao Baliram Kadam,
Age : 42 years,
All Occupation : Agriculture,
R/o Billali, Taluka Mukhed,
District : Nanded. ... Respondents
[Orig. Accused]
WITH
CRIMINAL APPEAL STAMP NO. 985 OF 2019
WITH
CRIMINAL APPLICATION NO. 3232 OF 2019
IN CRIMINAL APPEAL STAMP NO. 985 OF 2019
Vyankatrao Sambhajirao Kadam,
Age : 73 years, Occ. Agriculture,
R/o : Bilalli, Tq. Mukhed,
District Nanded ... Applicant
[Orig. Informant]
Versus
CriAppeal-293-2005+
-2-
1. The State of Maharashtra
Through Police Inspector,
Police Station, Mukhed,
District Nanded.
2. Madhav Baliram Kadam,
Age : 52 years,
Occupation : Agriculture,
R/o : Bilalli, Tq. Mukhed,
District Nanded.
3. Tukaram Baliram Kadam,
Age : 48 years,
Occupation : Agriculture,
R/o: Bilalli, Tq. Mukhed,
District Nanded.
4. Balaji Baliram Kadam,
Age : 45 years,
Occupation : Agriculture,
R/o: Bilalli, Tq. Mukhed,
District Nanded.
5. Sheshrao Baliram Kadam
Age : 56 years,
Occupation: Agriculture,
R/o : Bilalli, Tq. Mukhed,
District Nanded. ... Respondents
[R.2 to 5 Ori. Accused]
.....
Mr. S. A. Gaikwad, APP for the Appellant State in Cri. Appeal No. 293
of 2005 and Respondent No.1 in Cri.Appeal St.No. 985 of 2019 and
Cri.Application No. 3232 of 2019.
Mr. A. M. Gaikwad, Advocate for Respondent Nos. 1 to 4 in Criminal
Appeal No. 293 of 2005.
Mr. U. B. Deshmukh, Advocate for Appellant/Applicant in Cri.Appeal
St.No. 985 of 2019 and Criminal Application No. 3232 of 2019.
Mr. Nikhil N. Narlawar, Advocate h/f Mr. B. N. Gadegaonkar,
Advocate for Respondent Nos. 2 to 5 in Cri.Appln. No. 3232 of 2019.
.....
CriAppeal-293-2005+
-3-
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 11.12.2025
Pronounced on : 22.12.2025
JUDGMENT :
1. In these appeals, there is challenge to the judgment and order
dated 16.12.2004 passed by learned Additional Sessions Judge
Kandhar in Criminal Appeal No. 18 of 2003 (New)[Criminal Appeal
No. 19 of 2002 (Old)] acquitting the accused from offence under
Section 325 r/w 34 of IPC.
2. Charge was framed against four accused before learned Judicial
Magistrate First Class, Mukhed on accusation that on 24.08.1994, in
furtherance of common intention, accused persons voluntarily caused
grievous hurt to the complainant Vyankatrao as well as Kamalbai in
the backdrop of previous animosity. Therefore, offence under Section
325, 324 r/w 34 was registered and charge was framed against
accused. Learned J.M.F.C. appreciated the evidence and by judgment
and order dated 12.08.2002, convicted the accused for offence under
Section 325 r/w 34 of IPC. Feeling aggrieved by the above conviction,
the accused moved the Additional Sessions Judge, who re-appreciated
the entire evidence and recorded finding that prosecution had in fact
failed to prove the case beyond reasonable doubt and thereby
CriAppeal-293-2005+
acquitted the accused, overturning the judgment and order of
conviction.
Dissatisfied by the above, the State as well as the complainant
have questioned the judgment of acquittal by filing distinct appeals on
various grounds raised in respective appeal memo.
3. The complainant has also filed Criminal Application No. 3232
of 2019 seeking condonation of delay in filing the appeal. For the
reasons mentioned in the application, the same is allowed. Delay
stands condoned. The appeal filed by the complainant is heard along
with the instant appeal by the State and decided together by the
common judgment and order.
SUBMISSIONS
On behalf of the State :
4. Learned APP pointed out that prosecution had rested its case on
the evidence of nine witnesses. According to him, evidence of
complainant, his nephew PW2 and his sister PW3, which was
relevant, is consistent. That, their testimonies have remained
unshaken in the cross, however, the same has not been considered
properly. He pointed out that there was evidence of injured
CriAppeal-293-2005+
complainant himself. Presence of his sister was natural and she has
also witnessed the assault and even she was victimized by the
accused. He pointed out that, learned first appellate court had
discarded their evidence only on the ground that they are interested
persons. However, according to learned APP, learned first appellate
court failed to appreciate the settled law that mere being interested
witnesses is not sufficient to discard the evidence and rather, it is only
required to be appreciated carefully.
5. He pointed out that, learned trial court had correctly
appreciated the evidence and convicted the accused and there was no
reason for the first appellate court to disturb such findings by noticing
some minor omissions and contradictions which, according to him,
are bound to happen when evidence of witnesses is recorded after
lapse of time.
6. He also criticized the observations and findings of the first
appellate court while refusing the accept the medical evidence. On
this count, he invited attention of this Court to the cross faced by the
Doctor and would submit that, there was no reason to discard such
testimony. Consequently, according to him, on the strength of
evidence of PW1, PW2 and PW3, coupled with the medical evidence,
CriAppeal-293-2005+
prosecution had proved the case beyond reasonable doubt and was
rightly accepted by the trial court, but the same is unnecessarily
interfered with by the first appellate court, and so he urges to allow
the appeal.
On behalf of the Complainant :
7. Even learned counsel for the original complainant adopted the
above submissions and would point out that undue importance has
been given to the minor discrepancies which were not at all material.
On behalf of the Respondent-Accused :
8. Per contra, learned counsel for the respondents would support
the judgment and order of the first appellate court by criticizing the
judgment and order of the trial court. According to learned counsel,
here, apparently, witnesses have not given consistent count of the
occurrence, thereby rendering it doubtful. That, whatever was stated
by the injured complainant does not find support from his own sister
whose presence is rendered doubtful and who has rather given a
contrary version. He pointed out that PW3 sister gave contrary
version to that of the complainant by stating that complainant had
come on bicycle, when complainant himself had not come with such
story. He also questions the testimony of PW2 Nilkant, who is nephew
CriAppeal-293-2005+
of complainant, and PW5 Sushilabai, for whom complainant stood
surety in the proceedings under the Bombay Prohibition Act, and
would submit that their testimony shows that they had reached the
scene of occurrence after the altercation was over. Learned counsel
support the observations and conclusion drawn by the first appellate
court, more particularly by inviting attention of this Court to para 16
of the impugned judgment. Thus, attributing delay and false
implication, learned counsel support and canvass in favour of the
judgment and order of the first appellate court and pray to dismiss
the appeal for want of merit.
EVIDENCE BEFORE THE TRIAL COURT
9. Prosecution has examined in all nine (9) witnesses in support of
its case. Their role and status and the sum and substance of their
evidence can be summarized as under :
PW1 Vyankatrao is the informant, who is examined at Exhibit 87.
The relevant portion of his testimony is as under :
".... The said incident was taken place prior to 7 years and
some months ago. The said incident was taken place at Bilhali
S.T. stand at about 3.00 P.M. on the very day early in the
morning had gone to attend to village Jahoor bazar. While I
CriAppeal-293-2005+
was returning therefrom came on the spot and incident was
taken place. After completing bazar operation, I came at S.T.
stand. Accused no.4 threw chilly powder on my eyes. Accused
nos. 1, 2, 3 beat me up by means of stone. My left hand was
therefore fractured. Bone of my both jaw sole were dislocated. I
sustained severe injuries on my leg, thigh, hands, back and
waist. My sister Kamalbai came on the spot. While she was
coming towards me, accused persons beat my sister Kamalbai
up severely. She sustained injuries on her leg, her bangles were
also broken down. Nilkant, son of my sister rescued us. I was
not in a position to move therefrom and that therefore I told
my sister to make further arrangement. My sister Kamalbai had
therefore gone to Mukhed police station and narrated the
incident orally. Police had initially come on the spot and I was
brought therefore by them to Mukhed. I was asked by the
police about the incident. I accordingly narrated whole incident
to the police. My statement was reduced into writing by the
police. I am now read over contents of the complaint in open
court. I say that those are correct. It bears my signature. It is
therefore placed on record at Exh. 88. ....."
PW2 Nilkant is the nephew of the informant, and an eye witness.
Regarding the incident, he deposed at Exhibit 92 as under :
"... The said incident was taken place at about 3.00 P.M. on the
very day accused no.1 to 4 beat complainant Vyankat. At the
time of incident I was beside the school which is located near
the spot. I was 100 meters away from the spot at the time of
incident. I heard hue and cry and that therefore came to know
CriAppeal-293-2005+
the incident. I reached on the spot. Vyankat Sambhaji and
Kamalbai were being beaten up by accused nos. 1 to 4. Chilli
powder was found on the face, eyes and head of Vyankat
Sambhaji. Both of them were being beaten seriously by means
of sticks and stones. Other persons also rushed on the spot.
They rescued the said altercation. Vyankat Sambhaji was being
injured was initially brought to the Hospital and then his
house. I again say that he was initially brought at the house
from S.T. stand and then to the hospital.
I know the accused no.1 who is present in dock. I can
identify the accused no.2 to 4 who are today absent in dock
and whose personal attendance is sought to be exempted if
they are shown to me. These are the accused persons by whom
complainant Vyankat and Kamalbai were beaten up."
PW3 Kamalbai, sister of the complainant, has deposed at Exhibit 95
as under :
"I know the incident. I know complainant Vyankatrao. I also
know the accused persons. I say that accused no.2 to 4 are
today present in dock. I say that I can identify the accused no.1
who is today absent in dock and whose personal attendance is
sought to be exempted if he is shown to me. On 24.08.1994
incident was taken place among I myself, my brother
Vyankatrao and the accused persons. The said incident was
taken place at about 3.00 PM on Billali road. At the time of
incident, I was returning from by Anganwadi school. I was just
away from the spot at that time. At the time of incident, by
CriAppeal-293-2005+
brother came from my backside on bicycle and went ahead to
me. He went on Billali road, which was leading to village
Billali. Accused no.4 inserted a stick in the cycle of my brother
and caused to him fallen down. Accused Sheshrao and accused
Tukaram beat my brother Vyankatrao by means of stick.
Accused Balaji and accused Madhav beat my brother
Vyankatrao up by means of stones. Accused persons suddenly
came outside of cattle shed which is on the road. Rushing on
the spot I was fallen down on the person of my brother. I found
that chilli powder sprinkled on the face of my brother
Vyankatrao. Accused Tukaram Beat me by means of stick,
accused Balaji and Madhav pulled my hairs. The accused Balaji
and Madhav beat me up by means of stones. I therefore made
hue and cry. Nilkant who was just beside the spot at S.T. stand
came and rescued the altercation. Sushilabai gave drinking
water to Vyankatrao. I made hue and cry as left hand of my
brother was fractured, his right leg, jaw and claw was also
dislocated. Marks of the stones and stick were there on the
person of my brother Vyankatrao. I also sustained injuries on
my left hand, left leg, ankle and waist. I again say that I
sustained injury on the right side of my waist. I screamed
loudly. I also could not get up from the ground being injured. I
again say that my brother could not get up from ground being
injured. Dashrath, Gangadhar & Atmaram came on the spot
and Vyankatrao was brought to house on their back. Leaving
my brother at home, I went to the police station. Bringing
police jeep there we were brought to Mukhed town in it. We
were admitted in hospital at Mukhed town. We were kept there
for whole night at Hospital and early in the morning on the
CriAppeal-293-2005+
very next day we were referred to the hospital. We were
medically treated by the medical officers. I can identify the
sticks by which I myself and my brother were beaten if those
sticks are shown to me. I have submitted today discharge cards
in court. These are the same. The accused no.2 to 4 who are
present in dock are the same persons by whom we were beaten
up. One accused is today absent in dock out of 4 accused. I can
identify the accused no.1 who is today absent in dock if he
shown to me.
PW4 Balaji acted as pancha to spot panchanama Exhibit 100.
PW5 Sushilabai claims to be the eye witness. She, in her evidence at
Exhibit 102, has deposed as under :
"The incident was taken place prior to 7 years ago. The said
incident was taken place at S.T. stand in Billali village. The said
incident was taken place at about 3.00 P.M. At that time I was
at S.T. stand with a desire to go to Jahoor Bazar. I again say
that I was coming by walking from Jahoor towards Billali
village. Accused Keshavrao and Tukaram were beating to
Vyankat by means of stick. Accused Madhavrao and accused
Balaji were also beating him by means of stone. Kamalbai sister
of Vyankatrao Kadam was also present there. Nilkant son of
mother of Venkat was also present there. Nilkant and Kamalbai
rescued the said altercation. Water was being provided by me
from hapsa to Vyankatrao. Nothing was seen by me thereafter.
Chilli powder was also seen on mouth of Vyankatrao Kadam. I
have personally seen the incident by my own eyes. Accused
CriAppeal-293-2005+
Balaji Kadam who is today absent in dock and whose personal
attendance is sought to be exempted, I can identify to him if he
shown to me. Accused nos. 1 to 3 are the same person and
absent Balaji is also same person by whom altercation was
being committed.
PW6 ASI Kishan Barulkar, who recorded complaint Exhibit 88 and
referred the matter to the PSO for registration of crime.
PW7 Shivkant acted as pancha to seizure panchanama Exhibit 108.
He deposed at Exhibit 107 as under :
"On 26/8/1994, I was called by police for drawing seizure
panchanama at about 11.30 a.m. at Mukhed Station. Maulana
Fakirsab was also present there as another pancha. Tukaram
Sheshrao Kadam and Sheshrao were present there. Our
signatures were obtained there. Our signature were obtained
on seizure panchanama. I am now shown said panchanama. I
say that it is the same, which bears my signature. I am now
read over contents of panchanama in open court, I say that
those are correct. It is therefore placed on record at Exhibit
108. I can not identify those sticks if they are shown to me as I
did not fluently see them at that time. I cannot exactly recollect
at this juncture. Sheshrao and Tukaram are present in dock.
But I cannot identify them on the strength of their names.
PW8 Namdeo Surner was the Investigating Officer.
CriAppeal-293-2005+
PW9 Haribhau Gadekar, Medical Officer, who is examined at Exhibit
118. He deposed that since July 1992 till September 1997, he
had been working at Mukhed Rural Hospital. That, on
25.08.1994 at about 10.00 a.m. one patient namely Vyankatrao
Sambhaji Kadam was referred to him by the PSI, Police Station
Mukhed with the history of assault by lathi which took place on
24.08.1994 at about 3.00 p.m. He claims to have examined
Vyankatrao and found 11 injuries, which he narrated in his
deposition, and to have issued medical certificate 119.
ANALYSIS
10. Here, trial court, i.e. Court of learned J.M.F.C., Mukhed, has
accepted the case of prosecution as proved and has recorded guilt of
the accused for offence under Section 325 r/w 34 of IPC awarding
sentence of imprisonment as well as fine. On appeal being preferred
by convicts, the learned Additional Sessions Judge, Kandhar was
pleased to allow the same, setting aside the order of conviction and
granting acquittal. It is in the above backdrop, the State has come up
in appeal. There is also appeal by informant original complainant
against same judgment.
CriAppeal-293-2005+
11. Before adverting to the merits of the appeal, it would be
desirable to give a brief account regarding principles to be borne in
mind while dealing with appeal against acquittal. By catena of
judgments, law is made loud and clear that appellate court has power
to re-appreciate the evidence on record. That, appellate court should
interfere with the order of acquittal only when there is perversity of
fact and law and when there are substantial and compelling reasons.
It is also fairly settled position that, if two views are reasonably
possible on the basis of evidence on record, the view which favours
the accused should be adopted. However, it is also settled position
that while dealing with appeal against acquittal, if the view taken by
the trial court is not legally sustainable, the appellate court has ample
powers to interfere with the order of acquittal. Law to this extent has
been expounded in judgments viz, Bhagwan Jagannath Markad v.
State of Maharashtra (2016) 10 SCC 537; Arulvelu v. State 2010 (68)
ACC 5 (SC); State of Rajasthan v. Shera Ram AIR 2012 SC 1;
Ayodhya Singh v. State of Bihar 2005 (2) SCJ 650; Khem Ram v.
State of Himachal Pradesh (2018) 1 SCC 202; State of Uttar Pradesh
v. Wasif Haider and others (2019) 2 SCC 303; Sham Lal v. State of
Haryana AIR 2019 SC 1898; Dilawar Singh v. State of Haryana
(2015) 1 SCC 737 and State of Karnataka v. Suvarnamma (2015) 1
SCC 323.
CriAppeal-293-2005+
12. Thus, the principles to be kept in mind by the appellate court
while dealing with appeal against acquittal could be summarized as
under :
i. Firstly, there is no limitation on the part of appellate court to
review the evidence upon which the order of acquittal is founded
and come to its own conclusion
ii. Secondly, the appellate court can also review the trial court's
conclusion with respect to both, facts and law.
iii Thirdly, while dealing with appeal by State, it is the duty of
appellate court to marshal the entire evidence on record and by
giving cogent and adequate reasons, may set aside the judgment
of acquittal.
iv. Fourthly, an order of acquittal is to be interfered only when
there are "compelling and substantial reasons" for doing so. If
the order is "clearly unreasonable", it is compelling reason for
interference.
v. Fifthly, when the trial court has ignored the evidence or misread
the material evidence or has ignored material like dying
declaration, report of experts etc., the appellate court is
competent to reverse the decision of trial court depending on the
material placed before it.
CriAppeal-293-2005+
The above principles are enunciated in the case of Ganpat v.
State of Haryana (2010) 12 SCC 59; Khem Ram v. State of Himachal
Pradesh (supra) and Raja v. State of Karnataka (2016) 10 SCC 506.
13. Keeping in mind above settled law and principles, evidence in
hand is re-appreciated and re-analyzed.
14. Though as many as nine witnesses are examined, crucial
evidence is of PW1 Vyankatrao, PW2 Nilkant, PW3 Kamalbai and
PW5 Sushilabai. Rest are either panchas or police officials who
recorded report and carried out investigation respectively.
15. Analyzed the substantive evidence of above four witnesses.
According to PW1, alleged incidence took place while he was in the
vicinity of bus stand around 3.00 p.m., i.e. after he had returned from
bazar. He has named accused no.4 Sheshrao for throwing chilli
powder in his eyes followed by beating at the hands of accused
Madhav, Tukaram and Balaji by means of stick and stone inflicting
him fracture injury, dislocation of jaw bone and other injuries. He has
also deposed about his sister Kamalbai coming to his rescue and she
also being beaten by accused persons.
CriAppeal-293-2005+
On carefully going through his cross, it is emerging that, the
manner of questions put clearly suggest that occurrence is not
disputed at all. Cross examination in paragraphs 3, 4, 5 and 6 shows
that there is no dispute at all regarding the alleged occurrence of
assault to PW1.
16. As PW1 has claimed his sister Kamalbai to be coming to his
rescue, it is desirable to re-appreciate the evidence of PW3 Kamalbai
and it is her testimony that, while she was returning from her job at
Anganwadi, she saw her brother PW1 passing by her on bicycle and
she has narrated that, initially accused no.4 inserted stick in the tyre
of the bicycle causing her brother fall and thereafter she has alleged
that Sheshrao and Tukaram beat her brother by stick whereas Balaji
and Madhav used stones and she rushed and fell upon her brother to
save him. She claims to have come across chilli powder on the face of
her brother. She testified that she too was hit by means of stick by
Tukaram whereas accused Balaji and Madhav pulled her by her hair.
She too claims to have sustained injury on the right side of waist, left
hand and left ankle. She has deposed about approaching police. She
has indentified accused persons in the court and noted that one of the
accused was absent.
CriAppeal-293-2005+
Even in her cross para 3, there are questions only about
reaching at the spot, informing police orally and time spent in
approaching police. Para 7 of the cross shows that her version about
chilli powder being thrown on the face of her brother and beating
given to her brother and to her is surprisingly got confirmed by the
manner of cross examination. Her evidence to the extent of
occurrence has thus virtually remained unshaken.
17. Learned counsel for respondents would point out that there is
variance in the testimony of PW1 and PW3. It is tried to be put forth
that they are brother and sister and moreover, PW3 has deposed
about PW1 coming on cycle, but PW1 himself has not stated about he
arriving at the spot on cycle. Thus, it is tried to be submitted that
there are inconsistencies. However, though there is inconsistency to
above extent, mere failure of informant to depose that he was on
cycle, itself would not be sufficient to hold that witnesses are
inconsistent. PW3 being walking, had occasion to see her brother
passed by her on bicycle and therefore she has deposed to that extent.
Therefore, above submissions raised by learned counsel for
respondents has no force. Mere omission by PW1 to state the mode of
his arrival at the scene of occurrence, in not fatal.
CriAppeal-293-2005+
18. Here, prosecution has come with a case about availability of
other eye witnesses i.e. PW2 Nilkant and PW5 Sushilabai, and they
are examined at Exhibits 92 and 102 respectively.
19. According to PW2, hearing hue and cry, he reached the spot.
According to him, Vyankatrao and Kamalbai were being beaten by
accused nos. 1 to 4. He also deposed about coming across chilli
powder on the face and eyes of Vyankatrao. He has further stated that
they were beaten by means of sticks and stones. He has also identified
accused no.1 in the dock. Accused nos. 2 to 4 were absent.
While under cross, nothing damaging has been elicited.
20. Likewise, PW5 Sushilabai has also, in her evidence at Exhibit
102, stated that while she was walking from Jahoor towards Billali
village, she saw accused Sheshrao and Tukaram beating Vyankat by
means of stick whereas accused Madhav and Bajaji used stones. She
also marks presence of Kamalbai. She also confirms seeing chilli
powder on the mouth of Vyankatrao and she asserted that she has
personally seen the incidence with her own eyes.
CriAppeal-293-2005+
On visiting her cross, she has admitted that PW1 had stood as a
surety for her in some proceedings in Mukhed Court. Manner of
questioning and answers given by her in paragraphs 3 and 4 again
shows that occurrence is rather got reaffirmed from this witness.
21. Learned counsel for respondents would point out that,
witnesses PW2, PW3 and PW5 are related witnesses and therefore
learned first appellate court has rightly refrained from relying on their
testimony being interested witnesses.
22. In case of witnesses who happen to be related witnesses, law is
fairly settled that their testimony cannot be discarded on such sole
count. Court is rather expected to be cautious and careful in
appreciating their evidence to ascertain whether there is false
implication. Only abundant precaution is expected from the Court
while evaluating evidence of related witnesses. Law to this extent is
clarified in State of Madhya Pradesh v. Chhaakki Lal AIR 2019 SC
381; Ganpathi and another v. State of Tamil Nadu (2018) 5 SCC 549;
Bhagwan Jagannath Markad and others v. State of Maharashtra
(supra) and Dhari and others v. State of U.P. AIR 2013 SC 308.
CriAppeal-293-2005+
23. Here, this Court, on re-appreciation of evidence of PW2, PW3
and PW5, noticed that their presence at the scene of occurrence is not
rendered doubtful and moreover, they are consistent regarding
assault on Vyankatrao by accused persons by means of stick and stone
which is core of prosecution version. Kamalbai-PW3 is not only an eye
witness, but also an injured witness. Merely because there is no
medical evidence to show that she suffered injury, her ocular account
cannot be discarded. Her testimony is consistent with her own
brother, except the part of her brother arriving on bicycle. As stated
above, the manner of cross to the above witnesses clearly show that
occurrence is not doubted, rather it is got confirmed.
24. Injured complainant Vyankatrao was examined and treated by
PW9 and his testimony is also available at Exhibit 118 where he has
stated about arrival of PW1 and he has narrated the nature, length
and breadth of the injuries. This Doctor in witness box has testified
about history of assault. He has narrated about contusions with
fracture to radius, meta tarsal and multiple contusions and abrasions
on other parts of the body. However, while under cross, he has
admitted that no police constable was accompanying and that patient
had come walking.
CriAppeal-293-2005+
25. The above testimony of Doctor has not been correctly
appreciated by learned first appellate court and testimony of this
independent witness has been doubted on the count that, it is
doubtful whether accused came on his own accord or on referral by
police. Even undue importance seems to have been given by learned
first appellate court to the aspect of appellant coming walking. In the
considered opinion of this Court, mere fracture would not cripple or
disable a person from walking. For above reasons, the findings of first
appellate court does not appeal to the consensus.
26. On perusal of the impugned judgment, it is noticed that learned
first appellate court has picked up some of the inconsistencies in the
testimony of prosecution witnesses, but the same do not go to the
root or dismantle the core of prosecution case regarding assault by
accused in the backdrop of previous animosity. Here, there is credible
account of assault in the testimony of complainant himself, finding
support from his sister's evidence coupled with evidence of two other
independent witnesses, who, at later point of time in cross seem to
have admitted their relation with accused. But mere interested-ness or
to be a relative, would not be sufficient to cast out on their
testimonies which, on careful analysis, are otherwise worthy of
CriAppeal-293-2005+
credence. Witness like Sushilabai, even if shown to have reach after
the occurrence is concerned, is very categorical about assault being
made on Vyankatrao and Kamalbai by accused persons who are
identified by this Witness in the dock.
27. Carefully studied the evidence, comprehended the rival
contentions and perused the impugned order. Witnesses PW1, PW3
and PW5 are giving consistent version of the incident. Consequently,
on complete re-appreciation of the evidence, there are compelling
reasons as stated above, to interfere in the order of acquittal. The first
appellate court has failed to apply settled law. On the contrary,
learned trial court has correctly appreciated the prosecution evidence
and by assigning sound reasons, has accepted the case of prosecution
for convicting the accused. There was no reason or occasion for the
first appellate court to disturb such well reasoned order.
28. Here, there is evidence suggesting commission of offence under
Section 325 of IPC. Even learned trial court has recorded conviction
for said offence and has directed accused to suffer imprisonment for
one year and to pay fine. The said occurrence is admittedly of
24.08.1994 i.e. more than two decades back. Considering the nature
of articles put to use and nature of injury, as well as taking into
CriAppeal-293-2005+
account the long duration of time having lapsed since occurrence, the
sentence awarded by trial court is liable to be reduced.
29. However, learned trial court does not seem to have invoked
provisions under Section 357 of Cr.P.C. for awarding compensation to
the victim even when it was a fit case to invoke the same.
Consequently, this Court in appeal proposes to invoke this provision
and direct the accused to pay compensation to the victim. Hence the
following order :
ORDER
I. Both the Appeals are partly allowed.
II. The judgment and order dated 16.12.2004 passed by the
Additional Sessions Judge, Kandhar in Criminal Appeal No. 18 of
2003 (new) is hereby quashed and set aside.
III. Conviction of accused nos. 1 to 4 for offence under Section 325
r/w 34 of IPC awarded by the learned trial court by its judgment and
order dated 12.08.2002 in R.C.C. No. 172 of 1994 is maintained.
However, the sentence is reduced to the effect that, accused nos. 1 to
4 are sentenced to suffer Rigorous Imprisonment for three (03)
months in stead of one (01) year.
IV. The sentence of fine amount and in-default sentence is kept
intact.
CriAppeal-293-2005+
V. Accused-respondents shall surrender their bail bonds, if any.
VI. Accused nos. 1 to 4 shall also pay compensation of Rs.10,000/-
each to the complainant under Section 357 of the Cr.P.C. The
compensation amount shall be deposited in the trial court and shall
be then paid to the complainant.
VII. Trial Court shall take steps to give effect to the order passed by
this Court.
VIII. Both the appeals are accordingly disposed off.
IX. Criminal Application No. 3232 of 2019 also stands disposed off.
[ABHAY S. WAGHWASE, J.]
vre.
