Bombay High Court
The State Of Maharashtra vs Subhedar Mugutrao Bhosale And Ors on 14 February, 2025
HEMANT
CHANDERSEN
2025:BHC-AS:8031
SHIV
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HEMANT H.C.SHIV 7.app485.04.doc
CHANDERSEN SHIV
Date: 2025.02.18
20:16:06 +0300
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.485 OF 2004
The State of Maharashtra ...Appellant
vs.
1. Subhedar Mugutrao Bhosale
Age 43 years ...
2. Dattatraya Mugutrao Bhosale
Age 30 years ...
3. Mugutrao Sawala Bhosale
Age 70 years ...
4. Usha Subhedar Bhosale
Age 40 years ...
5. Malan Dattatraya Bhosale
Age 28 years ...
6. Darubai Mugutrao Bhosale
Age 65 years
All r/o Jawale, Tal.Khandala
District Satara ...Respondent
Ms. Rashmi S. Tendulkar APP for the Appellant-State.
Mr. Ayush Pasbola for Respondent Nos.1 to 3.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 6th FEBRUARY, 2025
PRONOUNCED ON : 14th FEBRUARY, 2025
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H.C.SHIV 7.app485.04.doc
JUDGMENT :
. The aforesaid Appeal is directed against the Judgment
and Order dated 9th December 2003 passed by a Court of learned
Judicial Magistrate, First Class, Khandala, District Satara in Regular
Criminal Case No.56 of 1997, thereby the Respondent Nos.1 to
6/Original Accused Nos.1 to 6 have been acquitted for the offences
punishable under Sections 147, 148, 323, 504 read with section 149 of
Indian Penal Code (for short 'I.P.C.') and under Section 37 (1) read
with Section 135 of the Maharashtra Police Act read with Section 149
of the I.P.C. (Hereinafter, the Respondents are being referred to by
their original status before the trial Court).
2) Record indicates that Appeal was admitted only against
the Accused Nos.1 to 3, vide Order dated 21st July, 2004. Thereafter,
the procedure under Section 390 of the Cr.P.C. was followed.
3) Heard Ms. Tendulkar, learned A.P.P. for the Appellant-
State and Mr. Pasbola, learned appointed Advocate for Accused Nos.1
to 3. Perused the record.
4) Facts giving rise to this Appeal are as under:-
The prosecution story is that, On 18 th July 1997, at about
5.30 p.m., PW1-Bhanudas Sopan Bhosale- the first informant, his
wife-Sujata, brothers Sanjay and PW6-Narhari and others had gone
H.C.SHIV 7.app485.04.doc
to their native village Jawale, Tal.Khandala, District Satara. At that
time the informant's mother-Narmada complained that on 17th July
1997, Accused No.1 and his wife-Accused No.4 Usha, abused her.
Therefore, PW1 went to the house of Accused No.1 around 7:30 p.m.
and asked as whether Abba @ Accused No.1 was at home and
inquired as to why the accused were abusing his mother. The Accused
No.4 replied that she would call the Accused No.1. Hence, PW1 stayed
there. But at that time the Accused Nos.1 to 3 came there armed with
sticks and Accused Nos.1 and 2 assaulted to PW1 on his back by
means of the sticks. Therefore, PW1's father-Sopan Bhosale, brothers
Sanjay and PW6 came there. But Accused Nos.1 and 3 assaulted them
by means of sticks and hands. Meanwhile, PW1's mother, his wife-
Sujata and sister-in-law Shalan came there to intervene. However,
Accused Nos.4 to 6 manhandled them and Accused No.6 assaulted
PW1's father by means of a footwear. Therefore, PW1 lodged an oral
report (Exh.45) with Khandala police station, District Satara.
5) Police registered the said oral report at FIR (Exh.45) at
C.R.No.83 of 1997 for the offence punishable under Sections 143, 147,
148, 323, 504 read with 149 of Indian Penal Code (for short 'I.P.C.').
During investigation, police referred the injured for their medical
examination, recorded the spot panchnama (Exh.51) and PW9 PSI
H.C.SHIV 7.app485.04.doc
Pathare arrested the accused persons. One stick each was seized from
Accused Nos.2 and 3 when they produced said sticks before the police
on 20th July 1997 vide seizure panchnama (Exh.69). One stick was
seized from Accused No.1 under panchnama (Exh.55) when he
produced the same on 22nd July 1997. On completion of investigation,
the police submitted the charge-sheet adding the offence under
Section 37 (1) read with Section 135 of the Maharashtra Police Act.
6) The learned Magistrate of the trial Court framed charge
(Exh.19) of the offences punishable under Sections 143,147, 148, 323,
504 read with 149 of Indian Penal Code (for short 'I.P.C.') and under
Section 37 (1) read with Section 135 of the Maharashtra Police Act
read with Section 149 of the IPC. The accused pleaded not guilty to
the charge and claimed to be tried. The defence of the accused was of
total denial and false implication.
7) To prove the charge, the prosecution examined in all nine
witnesses. However, PW2-Rangrao Bhosale, panch to seizure of stick
from Accused No.1; PW5-Hanmant Bhosale and PW7-Shivaji Aburao
Satale, both panch to the seizure of sticks from the Accused Nos.2 and
3, turned hostile to the prosecution. They were cross-examined by the
learned A.P.P. but nothing fruitful could be elicited from their cross-
examination. Therefore, their testimony is not worthy of discussion.
H.C.SHIV 7.app485.04.doc
8) The evidence of PW1-Bhanudas is verbatim to the text of
his report (Exh.45). He deposed that on 18 th July 1997, in the evening
when his mother complained him that the accused persons abused
her, he went to the house of Accused No.1 and inquired whether
Accused No.1 was present at home. The Accused No.4 replied in the
negative. PW1 stated that he, therefore, stayed there. At that time
Accused Nos.1 to 3 came there armed with sticks and, gave the sticks
blows over his back. PW1 deposed that his brothers Sanjay and PW6-
Narhari came there, but accused persons also assaulted them by
means of sticks. PW1 deposed that his wife Sujata and sister-in-law
Shalan separated them, however, they were also assaulted by the
accused party. PW1 deposed that the Accused No.6-Darubai assaulted
his father by means of chappal/footwear. Villagers Rajendra Patil and
Chandrakant separated the quarrel. PW1 deposed that thereafter he
went to the police station and lodged the report (Exh.45).
8.1) In the cross-examination PW1 admitted that his father,
brother PW6-Narhari knew the dispute regarding a landed property.
He has admitted that Criminal Case No.54 of 1997 was pending
against them in which he, 8 members of his family and two other
were accused. He has denied that he and other ten co-accused with
him in that case had assaulted the accused persons in this case by
H.C.SHIV 7.app485.04.doc
means of sticks and axe. PW1 has denied that he has falsely deposed
that that the incident occurred as stated above. PW1 has denied that
he and his family members reached the police station first in point of
time and falsely lodged the report (Exh.45).
9) PW6-Narhari deposed that on 18th July 1997, at about
5.30 p.m., when they had been to their village Jawale, his mother
informed him that Accused No.4 abused her, therefore, PW1 went to
the house of accused and inquired about the abusing. At that time the
daughter of Accused No.1 went to call the accused. Then the accused
came there armed with sticks and assaulted the PW1. Therefore, PW1
was shouting. He deposed that thereafter they went to the police
station and lodged the report. In the cross-examination, PW6
admitted that the FIR was registered against ten members of his
family. However, he has denied that he alongwith said family
members formed an unlawful assembly and assaulted the accused
person in this case.
10) PW8-Dr.Ramesh Thorat, Medical Officer deposed that on
18th July 1997, at about 11.30 a.m., PW1 and Sanjay Bhosale came to
Rural Hospital, Khandala along with Police Yadi. They gave history of
assault to them by means of sticks and hand on 18 th July 1997. PW8
H.C.SHIV 7.app485.04.doc
deposed that he examined PW1 and found following injuries on his
person:-
"(1) Tenderness on right side of back without any visible
mark.
(2) Tenderness on lower abdomen without any mark".
10.1) PW8 deposed that thereafter he examined Sanjay Bhosale
and found following injuries on his person :-
"(1) Contusion with selling on right wrist lateral border of
palm about 2cm x 1 cm".
10.2) PW8 deposed that he issued the injury certificates in
respect of the medical examination and the injuries of PW1 and
Sanjay Bhosale. PW8 deposed that injuries found on the person of
PW1 are not possible due to assault by stick. In the cross-examination
PW8 has denied that the injury on the person of Sanjay Bhosale was
not possible due to assault by means of stick.
11) PW3-Subhash Patil has testified that on 19th July 1997,
PW9- PSI Pathare called him in Bhosalewadi at village Jawale.
Accused No.3 Mugut Savale Bhosale showed the spot of incident. The
police recorded the spot panchnama (Exh.51). Its contents are correct
and true. In the-cross examination, PW3 deposed that PW1 was not
present at the time of recording the spot panchnama.
H.C.SHIV 7.app485.04.doc
12) PW4-Kantilal Satale deposed that on 22 nd July 1997 he
was called at the police station by PW9 PSI Pathare. At that time
Accused No.1 produced a stick in his presence. The police recorded
the stick seizure panchnama (Exh.55). Its contents are correct and
true. In the cross-examination PW4 has denied that the stick was 4 to
5 feet long. He has denied that the stick was either of Babool tree or
Kawali tree. He has denied that he has deposed false that on 22 nd July
1997 the accused No.1 produced the stick in his presence at the police
station and the police recorded its panchnama (Exh.55).
13) PW9 PSI Pathare has testified that on 19th July 1997 he
visited the spot of the incident with panchas and recorded the spot
panchnama (Exh.51). On the same day, he recorded statement of
witnesses. He arrested two accused on 20th July, 1997. Accused Nos.2
and 3 produced the two sticks. He seized the same and recorded the
seizure panchnama (Exh.69). He arrested two more accused on 22 nd
July 1997. Then Accused No.1 produced a stick and he seized the
same under the seizure panchnama (Exh.55). After completion of the
investigation, he submitted the chargesheet. He identified the sticks
at Article 'A' to Article 'C' as the same. PW9 admitted that the
witnesses in this case were prosecuted in R.C.C. No.55 of 1997.
H.C.SHIV 7.app485.04.doc
Except this nothing significant has come in the cross-examination of
PW9.
14) In view of the aforesaid evidence, the Trial Court held
that, there is no evidence that the accused persons had formed an
unlawful assembly. There is inconsistency in the evidence of PW1 and
PW6. That, there is inconsistency in the ocular testimony of PW1 and
PW6 on one hand and the expert's evidence of PW8 on the other.
Therefore, the Trial Court acquitted all the accused giving a benefit of
doubt.
15) Ms. Tendulkar, the learned APP submitted that, the
evidence of PW1 and PW6 clearly indicate that just because PW1
inquired with the accused about the incident of abusing to his mother,
the accused persons formed an unlawful assembly and in prosecution
of the common object of the said assembly, all the accused persons
assaulted to the members of the informant side. The evidence of PW1,
PW6 is corroborated with the prompt FIR. The testimony of said
witnesses and PW8 proved that PW1 and others had sustained certain
injuries due to assault by the accused persons. The spot pachanama
and seizures of the sticks were duly proved. Thus, the said evidence
cumulatively proved the charge against the accused. However, the
Trial Court acquitted the accused. As such, the impugned Judgment
H.C.SHIV 7.app485.04.doc
and Order is not sustainable in law. The learned APP, therefore,
submitted that the said Judgment and Order be set aside and the
accused be convicted.
16) In contrast, Mr. Pasbola, the learned Appointed Advocate
submitted that, there is material inconsistency in the testimony of
PW1, PW6 and PW8. The evidence of PW8 clearly shows that the
injuries of PW1 were not caused by means of sticks. The injured
Sanjay Bhosale is not examined, therefore, the evidence as to his
injuries is of no avail. The witnesses in this case are accused in the
counter case instituted on the FIR of the accused party. As such there
was reasonable doubt of truthfulness in the prosecution story. As a
result, the Trial Court acquitted the accused. Therefore, the impugned
Judgment and Order is lawful and need not be interfered.
17) On a careful scrutiny of the prosecution evidence I found
that, according to PW1 all the Accused Nos.1 to 3 assaulted him over
back by means of sticks. Then his father and brothers came there. But
the accused persons also assaulted to his father and brothers.
However, PW6 has not specifically deposed that the Accused Nos.1 to
3 assaulted to PW1 by means of sticks. Similarly, PW6 has not
deposed that the accused persons assaulted to his father, brother
Sanjay Bhosale and 3 others of their family. PW6 has not ascribed any
H.C.SHIV 7.app485.04.doc
role to Accused Nos.4 to 6. In fact, PW6 even did not state that said
Accused Nos.4 to 6 were present at the spot at the time of the
incident. In the report (Exh.45) it is stated that, PW6 was also
assaulted by sticks. This fact is also deposed by PW1. Yet, neither
PW6 deposed he was assaulted in the incident nor he sustained any
injury. As such, there is material inconsistency in the evidence of PW1
and PW6 as to the manner of the incident and the involvement of the
accused persons.
18) According to PW1 the Accused Nos. 1 to 3 assaulted him
over back by means of sticks, but he has sustained only one injury
over the back. In all two injuries were sustained by PW1 due to the
alleged assault. However, in the opinion of the expert witness PW8,
the said injuries are not possible by means of stick. It is not the case
that the accused Nos.1 to 3 used any other object to assault the PW1
and others with him. Thus, there is material inconsistency in the
version of PW1 and the expert evidence of PW8. The another injured
Sanjay Bhosale is not examined by the prosecution. As such the
evidence as to his injury is hearsay in nature. The seized sticks were
not shown to PW8 in relation to the alleged injuries. Moreover, the
injury certificates of PW1 and Sanjay Bhosale were not proved.
H.C.SHIV 7.app485.04.doc
19) In view of the above discussion, I hold that the
prosecution failed to prove the unlawful assembly. There is material
discrepancy in the evidence of PW1, PW6 and PW8 as to how the
assault took place and the cause of the injuries sustained by the PW1.
Sanjay Bhosale who was also injured in the incident, is not examined
by the prosecution. Therefore, the evidence as to his injury is hearsay
and is of no avail to the prosecution. Therefore, there is a reasonable
doubt about the truthfulness of the prosecution case. As such, the
trial Court has rightly acquitted the accused. Thus, there is no
perversity in the impugned Judgment and it needs no interference by
this Court.
19.1) As a result Appeal fails and is liable to be dismissed and is
dismissed, accordingly.
[SHYAM C. CHANDAK, J.]
